State v. Lee
| Decision Date | 31 January 1879 |
| Citation | 80 N.C. 483 |
| Parties | STATE v. RICHARD LEE. |
| Court | North Carolina Supreme Court |
INDICTMENT for Burglary tried at Fall Term, 1878, of CUMBERLAND Superior Court, before Buxton, J.
The indictment was found by a grand jury in Bladen, and the case was removed to Cumberland for trial. After conviction the prisoner moved for a new trial and in arrest of judgment on the grounds as stated in the opinion of this court. His motion was refused. Judgment, appeal by prisoner.
Attorney General, for the state .
Messrs. Guthrie & Carr, for the prisoner .
The first error assigned is, that on the trial in the court below the state allowed the prosecuting witness to retire from the stand without making proof that the dwelling house in which the offence was alleged to have been committed was closed on the night in question, and thereupon His Honor recalled the witness and had the omitted proof supplied under his own examination. In this there was no error.
The conduct of a trial is generally under the management of the solicitor and the counsel of the prisoner, with the right and duty in each to adduce their testimony to the facts by them deemed material and in their proper order, without further action on the part of the court than to pass upon the questions which may arise as to the admissibility and competency of the testimony, and at the close thereof to sum up the evidence and declare the law for the guidance of the jury. It would not be proper for the judge in the course of a trial to usurp the place and duty of the state's counsel on the one hand, and prescribe the order of introduction of the witnesses and become active in their examination; nor yet on the other hand to take the place of the prisoner's counsel and assume the duties resting on him in the general conduct of the defence. But it is expected of the judge in presiding at a trial, in the exercise of a perfect impartiality, to see the law properly administered and justice done both as respects the state and the accused. If a fact material to the state or to the prisoner be obviously overlooked and about to be omitted, it is usual in practice and within the scope of the judge's duty, on motion, to allow a witness to be recalled to supply the omitted fact; or in his discretion to recall the witness and have the oversight repaired under his own examination. It would be a reproach to our system if a judge were required to sit and see a prisoner convicted of a crime or his acquittal brought about through a failure to ask a particular question of a witness and not be allowed to interpose to supply so...
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