State v. . Owenby

39 S.E.2d 378, 226 N.C. 521, 1946 N.C. LEXIS 257

• Court: Supreme Court of North Carolina
• Decided: September 18, 1946
• Status: Published

Opinion

Stacy, C. J.

Tbe sufficiency of tbe indictment is challenged, both by motion to quash tbe bill and by motion in arrest of judgment. But as a new trial is to be bad for reasons hereafter stated, tbe solicitor can easily eliminate any objection by sending a new bill to tbe grand jury. It is always better in criminal matters to adhere to the established practice and to follow tbe beaten path. S. v. Johnson, ante, 266.

Tbe disparagement of tbe defendant’s witness, Cody, and tbe expression of opinion tbat tbe minor in tbe case was not a delinquent, though inadvertently made in tbe presence of tbe jury, would seem to entitle tbe defendant to another bearing. G. S., 1-180; S. v. Auston, 223 N. C., 203, 25 S. E. (2d), 613; S. v. Wyont, 218 N. C., 505, 11 S. E. (2d), 473.

No judge at any time during tbe trial of a cause is permitted to cast doubt upon tbe testimony of a witness or to impeach bis credibility. S. v. Winckler, 210 N. C., 556, 187 S. E., 792; S. v. Rhinehart, 209 N. C., 150, 183 S. E., 388; Morris v. Kramer, 182 N. C., 87, 108 S. E., 381; S. v. Rogers, 173 N. C., 755, 91 S. E., 854; Chance v. Ice Co., 166 N. C., 495, 82 S. E., 845; Ray v. Patterson, 165 N. C., 512, 81 S. E., 773. “Tbe slightest intimation from a judge as to tbe strength of tbe evidence or as to tbe credibility of a witness will always have great weight with tbe jury, and, therefore, we must be careful to see tbat neither party is unduly prejudiced by an expression from tbe bench which is likely to prevent a fair and impartial trial” — Walker, J., in S. v. Ownby, 146 N. C., 677, 61 S. E., 630.

Nor is it permissible for the judge in charging the jury or at any time during the trial, to intimate whether a material fact has been fully or sufficiently established, it being the true office and province of the jury to weigh the testimony and to decide upon its adequacy to prove any issuable fact. It is the duty of the judge, under the provisions of the statute, to state in a plain and correct manner the evidence given in the case and to declare and explain the law arising thereon, without expressing any opinion upon the facts. Gr. S., 1-180; S. v. Hart, 186 N. C., 582, 120 S. E., 345. It can make no difference in what way or when the opinion of the judge is conveyed to the jury, whether directly or indirectly, or by the general tone and tenor of the trial. The statute forbids an intimation of his opinion in any form whatever, it being the intent of the law to insure to each and every litigant a fair and impartial trial before the jury. “Every suitor is entitled by the law to have his cause considered with the ‘cold neutrality of the impartial judge’ and the equally unbiased mind of a properly instructed jury.” Withers v. Lane, 144 N. C., p. 192, 56 S. E., 855.

For, the errors as indicated, the defendant is entitled to a new trial. It is so ordered.

New trial.