In Re Holcomb's Will

93 S.E.2d 454 (1956)

244 N.C. 391

In the Matter of the WILL of J. E. HOLCOMB.

No. 604.

Supreme Court of North Carolina.

June 26, 1956.

*455 Joseph W. Brown, Whiteville, and Nance, Barrington & Collier, Fayetteville, for propounder appellant.

Powell, Lee & Lee, Whiteville, for caveator appellees.

BARNHILL, Chief Justice.

G.S. § 1-180 denies the judge presiding at a jury trial the right in any manner or in any form, by word of mouth or by action, to invade the prerogative of the jury in its right to find the facts. This statute has been applied in many cases and under varying circumstances. The cases appearing in our books on the subject are too numerous to undertake to cite. However, In re Will of Bartlett, 235 N.C. 489, 70 S.E.2d 482, is almost on all fours. See also Hyder v. Asheville Storage Battery Co., Inc., 242 N.C. 553, 89 S.E.2d 124, and the multitude of other cases appearing in the Code Annotation to G.S. § 1-180 and in Michie's N.C. Digest.

No doubt the trial judge, in making the remark, "As far as I am concerned he knows his father's signature," spoke somewhat spontaneously, and he temporarily forgot or overlooked the fact that the jury heard what he had said. Even so, his remark constitutes an unequivocal endorsement of the veracity of the witness, a caveator. That it was harmful to propounder is apparent. The jury answered the issues in favor of the caveators.

*456 Perhaps it might have been better if the judge had withdrawn a juror and ordered a new trial, thus saving the time and expense of an appeal to this Court. Be that as it may, a new trial was not ordered, and the propounder presents the question here by exception duly noted and an assignment of error duly made. We must perforce hold the same for prejudicial error and grant the propounder a new trial. It is so ordered.

New trial.