State v. PillowAnnotate this Case
66 S.E.2d 657 (1951)
234 N.C. 146
STATE v. PILLOW.
Supreme Court of North Carolina.
September 19, 1951.
*658 Harry M. McMullan, Atty. Gen. and Ralph Moody, Asst. Atty. Gen., for the State.
James P. Bunn, Jr., Rocky Mount, for defendant appellant.
When a misdemeanor or other criminal offense is committed in the presence of an officer, he may forthwith arrest the offender without a warrant. State v. Rogers, 166 N.C. 388, 81 S.E. 999, and cases cited; State v. Loftin, 186 N.C. 205, 119 S.E. 209; Perry v. Hurdle, 229 N.C. 216, 49 S.E.2d 400. We have held that this rule applies when the offense committed is the violation of the statute, G.S. 20-138, which forbids the operation of a motor vehicle upon a public street or highway by a person who is at the time under the influence of intoxicating liquor. State v. Loftin, supra. While there may have been some slight unnecessary delay in procuring a warrant and admitting the defendant to bail, it must be remembered that, according to the evidence for the State, the defendant was under the influence of intoxicating liquor even when he was released on bail some two hours later. Under *659 the circumstances the necessities of the case were largely within the discretion of the officer. State v. Freeman, 86 N.C. 683. No abuse of that discretion has been made to appear. It follows that there has been no infringement of any constitutional right of defendant such as would invalidate the trial in the court below and require the dismissal of the action. Certainly there is nothing in the record to indicate that the temporary incarceration of defendant in any way deprived him of the benefit of witnesses in his behalf.
Nor was there any error in the refusal of the court to dismiss the action for want of sufficient evidence to be submitted to a jury. There is substantial evidence tending to show that defendant had committed the offense for which he was on trial.
In the course of its charge to the jury the court reviewed the contentions made by the State. Defendant's exceptions to certain of these contentions contained in the instructions of the court merit our attention. A careful perusal of the charge in this respect compels the conclusion that it must have impressed the jury with the strength of the State's case and left them under the impression the court was of the opinion the defendant should be convicted.
After stating that the State contended the defendant had failed to produce witnesses who live in Virginia to testify in his behalf, the court charged: "and the State contends that if they are good enough friends of his for him to celebrate the christening of their baby, that they are good enough friends to come here and testify if they thought he had been wrongfully accused. And the State contends that they have not done that." Thus the court indicated that the failure of witnesses who were not subject to subpoena voluntarily to come to the aid of defendant warranted the inference that they were of the opinion that the defendant was not wrongfully charged, or, at least, that the State so contended, and thus burdened the defendant with the indifference or disloyalty of his friends. Their very absence warranted the inference that they thought defendant was under the influence of liquor at the time of his arrest. This is the inference the charge suggests.
And then again: "And the State contends that the warrant would not have been written if the defendant had not been under the influence of intoxicating liquor, and the State contends that the prosecuting attorney wrote this warrant after talking to the defendant about two hours after he was arrested, and the State contends that those facts ought to satisfy you that this defendant was under the influence of intoxicating liquor." That is to say, in effect, the State contends the prosecuting attorney talked to the defendant. He would not have issued a warrant if he had not formed the opinion, from this conversation, that defendant was guilty. From this circumstance alone the jury should infer guilt.
After referring to defendant's evidence of good character and charging that the State contends "that even a man of good character can drink too much and get under the influence", it instructed the jury further that "the State contends that you ought not to say that this defendant's character is so good because of the fact that he offered to plead guilty and then comes in and pleads not guilty; that he changed his mind about it after finding out that the law in this State requires the forfeiture of your driving license for the period of one year."
These contentions placed before the jury matters which they should not take into consideration in arriving at a verdict. State v. Wyont, 218 N.C. 505, 11 S.E.2d 473; Curlee v. Scales, 223 N.C. 788, 28 S.E.2d 576; State v. Isaac, 225 N.C. 310, 34 S.E.2d 410; State v. Warren, 227 N.C. 380, 42 S.E.2d 350; State v. Alston, 228 N.C. 555, 46 S.E.2d 567; State v. Woolard, 227 N.C. 645, 44 S.E.2d 29; State v. Auston, 223 N.C. 203, 25 S.E.2d 613; State v. Dee, 214 N.C. 509, 199 S.E. 730; State v. Rhinehart, 209 N.C. 150, 183 S.E. 388. It would not have been proper for the solicitor to have presented any one of them in his argument to the jury. It was error for the court to do so in its charge. Though the statements were in the form *660 of contentions, the legal inferences and deductions they suggested were such as to mislead the jury and prejudice the cause of the defendant. State v. Hedgepeth, 230 N.C. 33, 51 S.E.2d 914.
The inadvertence in thus stating the contentions of the State is one of those casualties which sometimes occur in the trial of a cause, notwithstanding the earnest desire of the trial judge to act at all times with complete impartiality. The inadvertence having occurred, however, we cannot avoid taking note thereof.
State v. Russell, 233 N.C. 487, 64 S.E.2d 579, relied on by the State, is distinguishable.
For the reasons stated, there must be a new trial.
VALENTINE, J., took no part in the consideration or decision of this case.