Searcy v. Justice
Decision Date | 06 February 1974 |
Docket Number | No. 7421DC31,7421DC31 |
Citation | 202 S.E.2d 314,20 N.C.App. 559 |
Court | North Carolina Court of Appeals |
Parties | George Giffen SEARCY, by his Guardian ad Litem, Gregory W. Schiro v. George Giffen JUSTICE. Annette Searcy LEVI v. George Giffen JUSTICE. |
Randolph & Randolph by Clyde C. Randolph, Jr., Winston-Salem, for plaintiff appellees.
Francis M. Coiner and Arthur J. Redden, Hendersonville, for defendant appellant.
Defendant contends that the trial court on several occasions violated Rule 51(a) of the North Carolina Rules of Civil Procedure by expressing an opinion in his instructions to the jury. Defendant also assigns as error the failure of the court to admit in evidence the tape-recorded conversation between himself and plaintiff. Defendant's assignments of error relating to the charge are well founded and entitle him to a new trial, and thus it is unnecessary for this Court to decide whether the tape recording was properly excluded.
Under Rule 51(a) the trial judge may not express an opinion, either directly or by implication, in favor of any party at any stage of the trial. Stanback v. Stanback, 270 N.C. 497, 155 S.E.2d 221; State v. Belk, 268 N.C. 320, 150 S.E.2d 481; Worrell v. Credit Union, 12 N.C.App. 275, 182 S.E.2d 874. State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10.
The court's charge to the jury included the following instruction: 'The person who had intercourse with the plaintiff, Annette Searcy Levi ten lunar months before August the 26, 1964 biologically would be the father of this child.' This statement is inaccurate, because the term of pregnancy is not always exactly ten lunar months; in some cases it may be substantially longer or shorter. 3 Lee, N.C. Family Law, § 250, at 191--92; See Byerly v. Tolbert, 250 N.C. 27, 108 S.E.2d 29; Cf. State v. Key, 248 N.C. 246, 102 S.E.2d 844. In flatly asserting that the person who had intercourse with plaintiff ten lunar months before the birth of her child would be the father of her child, the court ignored the possibility of a premature birth or an unusually long pregnancy.
But what is far more prejudicial, the court then related this improper statement to the testimony of plaintiff by charging:
The implication is inescapable that in the opinion of the court more weight should be attached to the testimony of plaintiff than to the evidence submitted by defendant.
An additional violation of Rule 51(a) involved the court's charge on reasonable doubt. G.S. § 49--14 provides that in a civil action to establish paternity, proof of paternity must be beyond a reasonable doubt. The trial court defined reasonable doubt in the following manner:
'The Court would instruct you that you shouldn't go outside of the evidence in this case to imagine doubt to render a verdict in favor of the defendant and against the plaintiff.'
The case to which the court was referring was State v. Mabery, 283 N.C. 254, 195 S.E.2d 304. In that case the Supreme Court approved an instruction on reasonable doubt containing the following sentence: 'While you cannot convict the defendant on mere surmise or conjecture, neither should you go outside the evidence to imagine doubt to justify an acquittal.' The first part of this sentence is favorable to the defendant; the last part is favorable to the State, or in a paternity case, to the plaintiff. The trial judge in the present case quoted the last part of the sentence, but he ignored the first part. As a result, his instruction on reasonable doubt was unduly weighted in favor of plaintiff.
The instruction on character evidence was similarly unbalanced. On this subject the court charged as follows:
The court did not instruct the jury that someone other than defendant could have been the father of plaintiff's child even if plaintiff were of good character and defendant's character were bad. Instead of being a neutral statement of the law, the instruction was entirely favorable to plaintiff. A juror listening to it could easily have concluded that the court felt that defendant's character evidence was irrelevant and unimportant and should be ignored.
Another violation of Rule 51(a) occurred in the court's instructions on the results that would follow from the jury's verdict. The judge discussed this subject extensively and pointed out to the jurors that if they found defendant to be the father of plaintiff's child, plaintiff could be awarded payments for the support of the child, whereas if they returned a verdict for defendant, plaintiff would be entitled to nothing. The instructions were worded in such a way as to arouse sympathy for plaintiff and encourage the jurors to reach a verdict for plaintiff because of their belief that someone should be responsible for the support of the child. This is not an appropriate basis for the jury's decision. In actions under G.S. 49--14, the jury decides only the factual issue of paternity, and the court decides what payments should be awarded for the support of the child. The jurors should be concerned only with the...
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