State v. Perry

Annotate this Case

57 S.E.2d 774 (1950)

231 N.C. 467

STATE v. PERRY et al.

No. 75.

Supreme Court of North Carolina.

March 1, 1950.

*776 Harry M. McMullan, Atty. Gen., and Rayph M. Moody, Asst. Atty. Gen., for the State.

Robert W. Jones, Bailey, for defendants.

DENNY, Justice.

In the light of the evidence adduced in the trial below, we concur in the ruling of the trial judge in refusing to sustain the defendants' motions for judgment as of nonsuit, and the exceptions entered thereto are overruled. State v. Fentress, 230 N.C. 248, 249, 52 S.E.2d 795; State v. Holbrook, 228 N.C. 582, 46 S.E.2d 842; State v. Turner, 220 N.C. 437, 17 S.E.2d 501; State v. Epps, 213 N.C. 709, 197 S.E. 580; State v. Rhodes, 210 N.C. 473, 187 S.E. 553; State v. Langley, 209 N.C. 178, 183 S.E. 526; State v. Weston, 197 N.C. 25, 147 S.E. 618; State v. Baldwin, 193 N.C. 566, 137 S.E. 590.

The defendants seriously contend that the manner in which the trial judge examined the defendants' witnesses and the type of questions propounded to them, amounted to an expression of opinion by the Court, in violation of G.S. ยง 1-180, and the decisions thereunder, citing State v. Cantrell, 230 N.C. 46, 51 S.E.2d 887; State v. Oakley, 210 N.C. 206, 186 S.E. 244; State v. Bryant, 189 N.C. 112, 126 S.E. 107, and State v. Jones, 181 N.C. 546, 106 S.E. 817.

It is well settled in this jurisdiction that it is improper for a trial judge to ask questions for the purpose of impeaching a witness. Counsel may do so of any adverse witness, but this privilege does not extend to the trial judge. State v. Cantrell, supra; State v. Bean, 211 N.C. 59, 188 S.E. 610.

Moreover, questions propounded by the Court, as well as remarks made to or about a witness, which are clearly calculated to convey to the jury the impression that the testimony of the witness, in the opinion of the Court, is probably unworthy of belief is error. And the fact that an exception was not entered at the time the question was propounded or the remark was uttered is immaterial. All expressions of opinion by the judge during the trial, like the admission of evidence made incompetent by statute, may be excepted to after verdict. State v. Bryant, supra.

On the other hand, there are times in the course of a trial, when it becomes the duty of the judge to propound competent questions in order to obtain a proper understanding and clarification of the testimony of the witness or to bring out some fact that has been overlooked. But the trial judge should not by word or mannerism convey the impression to the jury that he is giving it the benefit of his opinion on the facts. State v. Harvey, 214 N.C. 9, 197 S.E. 620; State v. Hart, 186 N.C. 582, 120 S.E. 345, 347. In the last-cited *777 case, Stacy, C. J., in discussing this question, said: "It can make no difference in what way or when the opinion of the judge is conveyed to the jury, whether directly or indirectly, or by the general tone * * * of the trial. The statute forbids an intimation of his opinion in any form whatever, it being the intent of the law to insure to each and every litigant a fair and impartial trial before the jury." State v. Rogers, 173 N.C. 755, 91 S.E. 854, L.R. A.1917E, 857; Morris v. Kramer Bros. Co., 182 N.C. 87, 108 S.E. 381; State v. Winckler, 210 N.C. 556, 187 S.E. 792; State v. Owenby, 226 N.C. 521, 39 S.E.2d 378.

It does not follow, however, that every ill-advised comment by the trial judge or question propounded by him which may tend to impeach the witness, is of such harmful effect as to constitute reversible error. The comment made or the question propounded should be considered in the light of all the facts and attendant circumstances disclosed by the record, and unless it is apparent that such infraction of the rules might reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless. Applying this criterion in the instant case, it is our opinion the evidence brought out by the Court, when considered in light of all the facts and attendant circumstances, disclosed by the record, was not of such prejudicial nature as to have had any appreciable effect on the result of the trial below. State v. Puett, 210 N.C. 633, 188 S.E. 75; State v. Jones, supra; State v. Browning, 78 N.C. 555.

The defendants except and assign as error the ruling of his Honor in allowing the State to introduce additional evidence after the State and the defendants had rested their case the afternoon before. The evidence had a direct bearing on the defendants' connection with the two cartons of non-tax paid liquors found in or near the ditch, referred to herein, by the highway patrolman and others. The existence of the evidence offered was not known to the Solicitor in time to have introduced it earlier. Moreover, it does not appear that the time of its introduction was prejudicial to the defendants, or that they were denied the privilege of offering testimony in rebuttal if they had so desired. It is discretionary with the presiding judge whether he will reopen the case and admit additional testimony after the conclusion of the evidence. Miller v. Greenwood, 218 N.C. 146, 10 S.E.2d 708; Ferrell v. Hinton, 161 N.C. 348, 77 S.E. 224; Dupree v. Virginia Home Insurance Company, 93 N.C. 237; State v. Harris, 63 N.C. 1. When the ends of justice require it, evidence may be offered even after the argument of counsel, Williams v. Averitt, 10 N.C. 308, or after the jury has retired, State v. Noblett, 47 N.C. 418.

The additional exceptions have been carefully considered and they present no prejudicial error.

In the trial below we find

No error.