State v. Cantrell

• Decision Date: 02 March 1949
• Docket Number: 5
• Citation: 51 S.E.2d 887,230 N.C. 46
• Parties: STATE v. CANTRELL.
• Court: North Carolina Supreme Court

51 S.E.2d 887

230 N.C. 46

STATE v. CANTRELL.

No. 5

Supreme Court of North Carolina

March 2, 1949

Criminal prosecution tried upon an indictment charging the defendant with having carnal knowledge of a female child of the age of ten years.

The defendant was tried at the April Term, 1948, of the Superior Court of Surry County, for the capital offense charged in the bill of indictment, and after due deliberation the jurors informed the Court that it was impossible for them to reach a verdict. Thereupon the Court withdrew a juror and ordered a mistrial.

When the case was again called for trial, the Solicitor announced that the State would not ask for a verdict of guilty of rape but would ask for a verdict of guilty of an assault with intent to commit rape.

The defendant is the father of the child he is charged with assaulting.

Verdict Guilty of an assault on a female with intent to commit rape. Judgment: That the defendant be confined in the State's Central Prison at hard labor, for not less than 14 nor more than 15 years.

The defendant appeals and assigns error.

Harry M. McMullan, Atty. Gen., and T. W. Bruton, Hughes J. Rhodes and Ralph M. Moody, Asst. Attys. Gen., for the State.

Frank Freeman and Charles L. Folger, both of Dobson, for defendant.

DENNY Justice.

The defendant entered a plea of not guilty to the charge in the bill of indictment, and undertook to prove an alibi. He offered a witness in his behalf not only for the purpose of establishing his alibi, but also to testify to a conversation which the witness claimed to have had with the prosecutrix sometime prior to the trial, which conversation tended to exonerate the defendant. Whereupon, the Court took over the examination of the witness and asked him the following questions:

'Q. When did you talk to her? A. I talked with her on Saturday two weeks before the last court.

'Q. Where was she? A. At my place.

'Q. You asked her about it? A. Yes, sir, I asked her about it. That is right.

'Q. Why did you ask her about it? A. Well, the fellow was in jail.

'Q. In other words you were in sympathy with her father? A. Well everybody else was against him.'

The Court struck out the last answer of the witness and instructed the jury not to consider it.

The defendant in apt time excepted to the statement made by the Court, as follows: 'In other words, you were in sympathy with her father?'

The defendant insists this statement was intended to impeach the witness and to discredit his testimony. We think the exception well taken and must be upheld. Any remark of the trial judge, made in the presence of the jury, which has a tendency to prejudice the minds of the jurors against the unsuccessful party or his witnesses, will be held for error. Perry v. Perry, 144 N.C. 328, 57 S.E. 1. Moreover, under our practice, any expression of opinion by the trial judge, as to the sufficiency or insufficiency of the evidence or any part of it which is pertinent to the matter at issue, is error. State v. Dick, 60 N.C. 440, 86 Am.Dec. 439; Withers v. Lane, 144 N.C. 184, 56 S.E. 855; State v. Ownby, 146 N.C. 677, 61 S.E. 630; Park v. Exum, 156 N.C. 228, 72 S.E. 309; State v. Rogers 173 N.C. 755, 91 S.E. 854, L.R.A. 1917E, 857.

Likewise, it is error for the trial judge to ask a witness an impeaching question. '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. ' State v. Owenby, 226 N.C. 521, 39 S.E.2d 378, 379; 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; Morris v. Kramer Bros. Co., 182 N.C. 87, 108 S.E. 381. Counsel may ask questions for the purpose of impeaching a witness on cross-examination or of an adverse witness, but this privilege does not extend to the trial judge. State v. Bean, 211 N.C. 59, 188 S.E. 610.

The remark was undoubtedly an inadvertence. However, any expression made by the judge in the course of a trial, in the presence of the jury, which amounts to an expression...