State v. Horne
| Decision Date | 05 April 1916 |
| Docket Number | 275. |
| Citation | 88 S.E. 433,171 N.C. 787 |
| Parties | STATE v. HORNE. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, New Hanover County; Rountree, Judge.
Melvin Horne was convicted of murder in the first degree, and he appeals. New trial ordered.
It is within the sound discretion of the trial judge to call any witness and examine him, so that it is not error for the court on its own motion to call in an expert alienist, using care not to prejudice the rights of the defendant thereby.
The court may examine witnesses tendered by either side, and this practice is especially allowable in the matter of expert witnesses who were originally regarded as amici curiae.
C. D Hogue and K. O. Burgwin, both of Wilmington, for appellant.
The Attorney General and T. H. Calvert, Asst. Atty. Gen., for the State.
The prisoner was convicted of the murder of D. L. T. Capps, and sentenced to death. On the trial the court of its own motion called as an expert witness one Dr. Stovall. The witness after examination, was found by the court to be an expert. The question presented is whether or not a judge is at liberty of his own motion to call expert witnesses who are not desired either by the state or by the defendant. This is a matter within the sound discretion of the trial judge. He has the right to call to the witness stand and examine any witness who may be able to shed light upon the controversy. He should exercise this right with care, and should so conduct the examination as not to prejudice either party.
It has been the immemorial custom for the trial judge to examine witnesses who are tendered by either side whenever he sees fit to do so, and the calling of a witness on his own motion differs from this practice in degree and not in kind. This practice, in the case of ordinary witnesses, has been approved in some instances. Clark v. Com., 90 Va 360, 18 S.E. 440; Hill v. Com., 88 Va. 633, 14 S.E 330, 29 Am. St. Rep. 744; O'Connor v. Ice Co., 121 N.Y. 662, 24 N.E. 1092; 57 L. R. A. 875, note. This practice is especially allowable in the matter of expert witnesses who were originally regarded as amici curiæ and were called generally by the court. 3 Chamberlayne on Evidence, §§ 2376, 2552.
The prisoner excepts to the following charge:
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State v. Hart
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