State v. Lowery

183 S.E.2d 797 (1971)

12 N.C. App. 538

STATE of North Carolina v. Joe Walter LOWERY and Bobby Graham.

No. 7112SC571.

Court of Appeals of North Carolina.

October 20, 1971.

*799 Atty. Gen. Robert Morgan and Asst. Atty. Gen. William F. Briley for the State.

Philip A. Diehl, Moses & Diehl, Raeford, for Joe Walter Lowery.

Asst. Public Defender William S. Geimer, Fayetteville, for Bobby Graham.

HEDRICK, Judge.

By appropriate assignments of error the defendants contend the court expressed an opinion as to the credibility of the defendants and their other witnesses, in violation of the provisions of G.S. § 1-180.

In State v. Belk, 268 N.C. 320, 150 S.E.2d 481 (1956), Justice Branch quoted with approval from State v. Carter, 233 N.C. 581, 65 S.E.2d 9 (1951), as follows:

"`The trial judge occupies an exalted station. Jurors entertain great respect for his opinion, and are easily influenced by any suggestion coming from him. As a consequence, he must abstain from conduct or language which tends to discredit or prejudice the accused or his cause with the jury. G.S. § 1-180.'"

In State v. Frazier, 278 N.C. 458, 180 S.E.2d 128 (1971), Justice Huskins said:

"`It has been the immemorial custom for the trial judge to examine witnesses who are tendered by either side whenever he sees fit to do so * * *.' State v. Horne, 171 N.C. 787, 88 S.E. 433 (1916). Even so, the law requires such examinations to be conducted with care and in a manner which avoids prejudice to either party. `If by their tenor, their frequency, or by the persistence of the trial judge they tend to convey to the jury in any manner at any stage of the trial the "impression of judicial leaning," they violate the purpose and intent of G.S. § 1-180 and constitute prejudicial error.' State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968). Accord State v. Lea, 259 N.C. 398, 130 S.E.2d 688 (1963); State v. Peters, 253 N.C. 331, 116 S.E.2d 787 (1960); Andrews v. Andrews, 243 N.C. 779, 92 S.E.2d 180 (1956); State v. McRae, 240 N.C. 334, 82 S.E.2d 67 (1954)."

In North Carolina it is improper for a trial judge to question a witness for the purpose of impeaching his testimony. State v. Perry, 231 N.C. 467, 57 S.E.2d 774 (1950). However, it is a well settled rule in this State that a trial judge may ask questions of a witness in order to obtain a proper understanding and clarification of the witness' testimony. State v. Strickland, 254 N.C. 658, 119 S.E.2d 781 (1961); State v. Humbles, 241 N.C. 47, 84 S.E.2d 264 (1954); State v. Stevens, 244 N.C. 40, 92 S.E.2d 409 (1956); State v. Furley, 245 N.C. 219, 95 S.E.2d 448 (1956).

After the defendant Lowery had testified on both direct and cross-examination, the record reveals that the judge asked the defendant the following question:

"Mr. Lowery, at the time you fired your shotgun you knew there was someone in the Bertha Leslie Club, didn't you?"

After the defendant Graham had testified on direct and cross-examination, the *800 record reveals that the following occurred between the judge and the defendant Graham:

"Q. Just a minute please, Mr. Graham, if you thought there was trouble brewing outside, why didn't you stay in your house rather than get your gun and go out and get in it? A. See, the last time they had an incident, people standing around next to it, went the only way they could go, and to go down to get the police crawled out the back door. And my children sleep in the front. The last time the majority of the people ran in there and it is the first place would be shooting; and that is when I told my wife I was going to get the gun. Q. You knew there was trouble going on and you got your gun and went out to get in it? A. No, sir, I went to stop it, keep it from going around my house. Q. What have you been tried and convicted for? A. Accessory after the fact to auto larceny and worthless check. Q. What else? A. That is about all. Q. About all? A. That is it."

We have carefully examined all of the questions put to the defendants by the judge in the light of their testimony and all the attendant facts and circumstances of the case, and we cannot say the questions were calculated to clarify the defendants' testimony. The questions propounded by the judge were in the nature of cross-examination, and could have indicated to the jury that the court was not impartial. Whatever the purpose of the questions was, the cumulative effect surely tended to impeach the defendants and the credibility of their testimony.

It is our opinion that the judge committed prejudicial error by inadvertently expressing an opinion as to the credibility of the defendants as witnesses, in violation of G.S. § 1-180.

The defendants have additional assignments of error which we do not discuss here since they are not likely to occur on a new trial.

For the reasons stated, each defendant is entitled to a

New trial.

MALLARD, C. J., and CAMPBELL, J., concur.