State v. Davis

• Decision Date: 22 January 1936
• Docket Number: 725.
• Parties: STATE v. DAVIS.
• Court: North Carolina Supreme Court

183 S.E. 420

209 N.C. 242

STATE v. DAVIS.

No. 725.

Supreme Court of North Carolina

January 22, 1936

Appeal from Superior Court, Orange County; Harris, Judge.

A. H Davis was convicted of involuntary manslaughter, and he appeals.

No error.

Instruction that jury should consider that defendant was testifying in own behalf, and that jury had right to believe all defendant said, or part, or none, jury's only duty being to scrutinize testimony, taking into consideration that he was more interested in verdict than any one else, and then to give credibility to defendant's testimony as jury saw fit held not reversible error.

The defendant, A. H. Davis, was charged with unlawfully causing the death of Mrs. W. W. Martin as the result of culpable negligence in the operation of an automobile on the public highway.

The evidence is not set out in the record, but it is admitted in the case on appeal that there was evidence offered in behalf of the state which tended to show that the defendant was operating his automobile carelessly and negligently; that such carelessness and negligence was culpable and such as to support criminal liability, and that there was evidence sufficient to support a verdict of guilty of manslaughter. The defendant admitted on cross-examination that he had been convicted of receiving stolen goods and had served a sentence of eighteen months therefor.

The defendant excepted to the following portion of the judge's charge: "When a defendant goes on the stand gentlemen, it is your duty to scrutinize the testimony of the defendant. What I mean by that, gentlemen, by scrutinizing his testimony, you, the jury, should take into consideration the fact that this defendant is testifying in his own behalf. That does not mean that you can't believe what he says. You have a right to believe all he says, or part, or none your only duty being to scrutinize it, to take into consideration that he is more interested in your verdict than anybody else, because it affects him most, and then give such credibility to his testimony as you see fit. I say that you have a right to believe it all, or part. Your only duty is to scrutinize that testimony as given by the defendant."

There was a verdict of guilty of manslaughter, and from judgment in accordance therewith defendant appealed.

P. W Glidewell, of Reidsville, and Graham & Sawyer, of Hillsboro, for appellant.

A. A. F. Seawell, Atty. Gen., and John W. Aiken and T. W. Bruton, Asst. Attys. Gen., for the State.

DEVIN Justice.

The defendant, being charged with involuntary manslaughter growing out of an automobile collision, went upon the stand and testified as a witness in his own behalf.

After a full and accurate charge to the jury covering the other phases of the case, the trial judge, referring to defendant's testimony on the stand, used this language (omitting immaterial words): "When a defendant goes on the stand it is your duty to scrutinize his testimony. What I mean by that is you should take into consideration the fact that he is testifying in his own behalf. That does not mean that you can't believe what he says. You have a right to believe all he says, a part, or none, your only duty being to scrutinize it, that is to take into consideration that he is more interested in your verdict than anybody else, and then give such credibility to his testimony as you see fit. You have a right to believe it all or part. Your only duty is to scrutinize the testimony given by the defendant."

The defendant contends this language fails to conform to the rule laid down by this court with respect to the consideration to be given by the jury to the testimony of interested witnesses. That is the only question presented by this appeal.

The latest utterance of this court on the subject is found in State v. Wilcox, 206 N.

C. 694 175 S.E. 121, wherein the following language of the trial judge was held to be objectionable: "It is your duty to scrutinize the evidence of defendant before accepting his evidence as true. * * * The law recognizes that human nature is weak and subject to temptations, and, therefore, the law presumes that...