State v. Head

211 S.E.2d 534 (1975)

24 N.C. App. 564

STATE of North Carolina v. Joseph Marion HEAD, Jr.

No. 7429SC892.

Court of Appeals of North Carolina.

February 5, 1975.

*535 Atty. Gen. Rufus L. Edmisten by Associate Attys. Gen. Raymond L. Yasser and Joan H. Byers, Raleigh, for the State.

Robert L. Harris, Rutherfordton, and Robert W. Wolf, Forest City, for defendant-appellant.

HEDRICK, Judge.

Defendant assigns as error the denial of his timely motions for judgment as of nonsuit. However, when the evidence is considered in the light most favorable to the State, it is clearly sufficient to require submission of these cases to the jury. This assignment of error is overruled.

Defendant further contends the trial judge erred to defendant's prejudice when he instructed the jury that "there was some evidence ... considerable evidence that [the defendant] took [Miss Griffin's] clothes off and that she was saying, `no, no' all the time, but that he proceeded to have intercourse [with her] . . ." and when the judge stated, "[n]ot satisfied with that, the evidence tends to show that he [the defendant] again had intercourse with her. . ." [Emphasis ours.] Defendant argues that the trial judge expressed an opinion in violation of G.S. § 1-180 by these statements as to the weight and credibility of the State's evidence.

G.S. § 1-180 in pertinent part provides: "No judge, in giving a charge to the petit jury in a criminal action, shall give an opinion whether a fact is fully or sufficiently proven, that being the true office and province of the jury ..." It has long been held in this State that even the slightest intimation from a judge as to the strength of the evidence, or as to the credibility of a witness, will always have great weight with a jury; and, therefore, the court must be careful to see that neither party is prejudiced by an expression from the bench which is likely to prevent a fair and impartial trial. State v. Ownby, 146 N.C. 677, 61 S.E. 630 (1908); State v. McLean, 17 N.C.App. 629, 195 S.E.2d 336 (1973).

The instruction challenged by this exception clearly amounts to an expression of opinion on the part of the trial judge upon the critical evidence tending to show that the defendant committed the crimes charged. By stating that there was "considerable evidence", we think the trial judge inadvertently intimated to the jury his opinion as to the sufficiency of the evidence. Moreover, we think the judge's use of the phrase "[n]ot satisfied with that" again intimated to the jury that it was his opinion that the defendant had raped Miss Griffin.

Since there must be a new trial, it is not necessary that we discuss defendant's additional assignments of error.

For error in the charge there must be a new trial.

MORRIS and PARKER, JJ., concur.