State v. Alexander

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167 S.E.2d 37 (1969)

4 N.C. App. 513

STATE of North Carolina v. Willie Eugene ALEXANDER.

No. 6926SC216.

Court of Appeals of North Carolina.

April 30, 1969.

*38 Robert Morgan, Atty. Gen., by T. Buie Costen, Raleigh, Staff Attorney, for the State.

Nivens & Brown, by Calvin L. Brown, Charlotte, for defendant.

BROCK, Judge.

During the course of the trial the arresting officer was examined in the absence of the jury concerning probable cause for his arrest of defendant without a warrant. Upon this voir dire considerable testimony was admitted which was appropriate for the purposes for which admitted; and this evidence on voir dire was properly not allowed before the jury. Nevertheless, the trial judge, in his charge to the jury, inadvertently reviewed this voir dire testimony.

Unquestionably, the accusatory and identifying statements made to the arresting officer by persons who assisted the officer in finding and identifying the defendant, which persons were not witnesses in defendant's trial, were prejudicial to the defendant in both cases.

When the trial judge, in his charge to the jury, makes an inaccurate statement of facts contained in the evidence, this inaccuracy should be called to his attention during or at the conclusion of the charge in order that the error might be corrected. But a statement of a material fact not contained in the evidence constitutes reversible error. State v. McCoy, 236 N.C. 121, 71 S.E.2d 921.

There are other assignments of error, but we refrain from discussing them because they probably will not arise upon a new trial.

New trial in both cases.

CAMPBELL and MORRIS, JJ., concur.