State v. McNeil

58 S.E.2d 366 (1950)

231 N.C. 666

STATE v. McNEIL.

No. 292.

Supreme Court of North Carolina.

March 29, 1950.

Attorney-General Harry McMullan and Assistant Attorney-General Ralph Moody *367 and Walter F. Brinkley, Member of Staff, Lexington, for the State.

Max C. Wilson and Hal B. Adams, Lenoir, for defendant.

STACY, Chief Justice.

The principal question for decision is whether the court prejudiced the defendant's case by ordering his witness into custody in the presence of the jury without assigning any reason therefor.

It is freely conceded that the court may not impeach or disparage the testimony of a material witness for the defendant in a criminal prosecution. The authorities are to the effect that no judge at any time during the trial of a cause is permitted to cast doubt upon the testimony of a witness or to impeach his credibility. G.S. § 1-180; State v. Perry, 231 N.C. 467, 57 S.E.2d 774; State v. Cantrell, 230 N.C. 46, 51 S.E.2d 887; State v. Owenby, 226 N.C. 521, 39 S.E.2d 378; State v. Auston, 223 N.C. 203, 25 S.E.2d 613; State v. Buchanan, 216 N.C. 34, 3 S.E.2d 273; State v. Winckler, 210 N.C. 556, 187 S.E. 792; State v. Rhinehart, 209 N.C. 150, 183 S.E. 388; State v. Bryant, 189 N.C. 112, 126 S.E. 107; Morris v. Kramer Bros. Co., 182 N.C. 87, 108 S.E. 381; Withers v. Lane, 144 N.C. 184, 56 S.E. 855; State v. Dick, 60 N.C. 440, 86 Am.Dec. 439.

Undoubtedly, the jury must have concluded that the court thought the witness was guilty of perjury or of criminal relations with a female juvenile, either of which, we apprehend, was calculated to weaken his testimony in the eyes of the jury. State v. Swink, 151 N.C. 697, 726, 66 S.E. 448, 19 Ann.Cas. 422. There is no suggestion of any contumacy on the part of the witness. State v. Slagle, 182 N.C. 894, 109 S.E. 844; Seawell v. Carolina Cent. R. Co., 132 N.C. 856, 44 S.E. 610; 53 Am.Jur. 82. Nor do we think the later instruction to the jury to banish the incident from their minds cured the defect. State v. Winckler, supra; State v. Bryant, supra; Morris v. Kramer, supra; 53 Am. Jur. 85.

Presumably, the verdict is sufficient in form to fix the paternity of the child. State v. Ellison, 230 N.C. 59, 52 S.E.2d 9. As to this, however, we express no opinion since the case is to be sent back. State v. Spillman, 210 N.C. 271, 186 S.E. 322.

New Trial.