State v. Carter

• Decision Date: 09 May 1951
• Docket Number: No. 577,577
• Citation: 233 N.C. 581,65 S.E.2d 9
• Court: North Carolina Supreme Court
• Parties: STATE, v. CARTER.

Page 9

65 S.E.2d 9

233 N.C. 581

STATE, v. CARTER.

No. 577

Supreme Court of North Carolina.

May 9, 1951

Hugh A. Lee and Pittman & Webb, all of Rockingham, for the defendant-appellant.

Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and Charles G. Powell, Jr., Member of Staff, Raleigh, for the State.

ERVIN, Justice.

The rules regulating practice in the Supreme Court prescribe that 'Exceptions in the record not set out in appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him.' Rule 28. The defendant has thus relinquished all of his exceptions save those numbered 6, 7, 10, 11, 12, and 13.

These particular exceptions are addressed to comments or remarks made by the presiding judge in the presence of the jury during the progress of the trial. The defendant asserts with much earnestness that the language of the judge disparaged his defense, created prejudice toward him in the minds of the jury, and deprived him of his right to a fair trial.

Every person charged with crime has an absolute right to a fair trial. By this it is meant that he is entitled to a trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. See State v. Gossett, 117 S.C. 76, 108 S.E. 290, 16 A.L.R. 1299.

The responsibility for enforcing this right necessarily rests upon the trial judge. He should conduct himself with the utmost caution in order that the right of the accused to a fair trial may not be nullified by any act of his.

The trial judge occupies an exalted station. Jurors entertain great respect for his opinion, and are easily influenced by any suggestion coming from him. As a consequence, he must abstain from conduct or language which tends to discredit or prejudice the accused or his cause with the jury. G.S. § 1-180; State v. Simpson, 233 N.C. 438, 64 S.E.2d 568; State v. Bryant, 189 N.C. 112, 126 S.E. 107.

The bare possibility, however, that an accused may have suffered prejudice from the conduct or language of the judge is not sufficient to overthrow an adverse verdict. State v. Jones, 67 N.C. 285. The criterion for determining whether or not the trial judge deprived an accused of his right to a fair trial by improper comments or remarks in the hearing of the jury is the probable effect of the language upon the jury. State v. Ownby, 146 N.C. 677, 61 S.E. 630. In applying this test, the utterance of the judge is to be considered in the light of the circumstances under which it was made. This is so because 'A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.' Towne v. Eisner, 245 U.S. 418, 38 S.Ct. 158, 159, 62 L.Ed. 372.

When the comments and remarks of the trial judge in the instant case are tested in this way, they do not merit the criticism which has been visited upon them.

Exceptions 6 and 7 relate to remarks made by the judge while counsel for the defense was cross-examining the State's witness, C. F. Watkins. When counsel asked the witness whether the defendant's automobile passed the patrol car at a place 'where a man had a right to pass,' the judge informed counsel that the witness had already 'answered that question'; and when counsel asked the witness whether he had an opinion as to the defendant's condition at the time of his arrest, the judge suggested to counsel that he 'ask the witness something else.' Counsel had previously cross-examined the witness as to the matters covered by these questions, and the remarks under scrutiny merely manifested to counsel the desire of the judge that counsel should forego unnecessary repetitions. The judge presiding at a trial has discretionary authority to prevent the repetition of questions already answered. State v. Davenport, 227 N.C. 475, 42 S.E.2d 686; State v. Stone, 226 N.C. 97, 36 S.E.2d 704; State v. Mansell, 192 N.C. 20, 133 S.E. 190; State v. Robertson, 86 N.C. 628. 'The judge is charged with the duty of having the trial properly conducted. He should take care that the time of the court is not wasted. Courts are very expensive. While a judge should see that matters are not so hurried that any litigant is abridged of his rights, he should also see that the public time is not...