State v. Swink

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225 S.E.2d 646 (1976)

29 N.C. App. 745

STATE of North Carolina v. Gary Carlon SWINK.

No. 7622SC180.

Court of Appeals of North Carolina.

June 16, 1976.

*647 Atty. Gen. Rufus L. Edmisten by Asst. Attys. Gen. Charles J. Murray and Ann Reed, Raleigh, for the State.

Pope, McMillan & Bender by Harold J. Bender, Statesville, for defendant-appellant.

HEDRICK, Judge.

The defendant contends "the trial court committed reversible error in allowing the. [district attorney] to make prejudicial and improper remarks to the jury". In his closing argument, the district attorney made the following statements:

"You know, we read a lot in the paper about coddling criminals, but now it is your chance to stand up and be counted. By convicting this man, you are saying that we will not have this go on here in Iredell County." "This man (indicating the defendant) is a professional criminal. I know it and Mr. Bender (defendant's attorney) knows it too."

There was an objection by defendant but no ruling was made from the bench.

In State v. Miller, 271 N.C. 646, 157 S.E.2d 335 (1967), the Supreme Court held it to be prejudicial error for the solicitor to refer to defendants as "habitual storebreakers". In State v. Foster, 2 N.C.App. 109, 162 S.E.2d 583 (1968), the use of the term "professional crook" was held to be prejudicial error. We believe the remarks made in this case fall within the prohibition of the above cited cases and entitle defendant to a new trial.

We do not discuss defendant's other assignments of error since they are not likely to occur at a new trial.

New Trial.

PARKER and ARNOLD, JJ., concur.