State v. McBryde, 672

• Decision Date: 20 June 1967
• Docket Number: No. 672,672
• Citation: 155 S.E.2d 266,270 N.C. 776
• Parties: STATE, v. Calvin Foster McBRYDE.
• Court: North Carolina Supreme Court

Page 266

155 S.E.2d 266

270 N.C. 776

STATE, v. Calvin Foster McBRYDE.

No. 672.

Supreme Court of North Carolina.

June 20, 1967.

Atty. Gen. T. W. Bruton, Asst. Atty. Gen. William W. Melvin, and Staff Attorney T. Buie Costen, Raleigh, for the State.

Seawell, Seawell & Van Camp, Carthage, for defendant.

BRANCH, Justice.

Defendant contends that the court gave an expression of opinion as to the credibility of defendant's witness Allen Parker. This assignment of error is based on facts which appear in the record, as follows: As Mr. Parker was stepping down from the witness stand, having completed his testimony, the court stated to him, 'Don't leave the room, Mr. Parker.' The following also appears in the record:

'During the argument of counsel for the defendant to the jury, the Judge, while sitting upon the bench and while Court was in session, had a short conversation with the Sheriff of Hoke County, which conversation was heard only by the Sheriff and the Judge, and immediately thereafter the Sheriff of Hoke County left the courtroom and took said Allen Parker into custody outside the courtroom, and walked the said Allen Parker back to the courtroom under custody and placed him in the prisoner's box, all in the presence of the jury. That the prisoner's box is located on the opposite side of the courtroom and directly in front of the jury.'

This Court has long recognized the strong influence which a judge may wield over a jury. 'The judge should be the embodiment of even and exact justice. He should at all times be on the alert, lest, in an unguarded moment, something be incautiously said or done to shake the wavering balance, which, as a minister of justice, he is supposed, figuratively speaking, to hold in his hands. Every suitor is entitled by the law to have his cause considered with the 'cold neutrality of the impartial judge' and the equally unbiased mind of a properly instructed jury. This right can neither be denied nor abridged.' Withers v. Lane, 144 N.C. 184, 56 S.E. 855. See also State v. Belk, 268 N.C. 320, 150 S.E.2d 481.

'It can make no difference in what way or when the opinion of the judge is conveyed to the jury, whether directly or indirectly, or by the general tone and tenor of the trial. The statute forbids an intimation of his opinion in any form whatever, it being the intent of the law to insure to each and every litigant a fair and impartial trial before the jury.' State v. Hart, 186 N.C. 582, 120 S.E. 345.

In the case of State v. McNeill, 231 N.C. 666, 58 S.E.2d 366, the defendant was prosecuted for wilful failure to support his illegitimate child, and as a part of his defense offered a witness who testified that he had on several occasions had intercourse with the prosecuting witness. Immediately after he had testified, the court ordered the sheriff to take the witness into custody. Holding that this was prejudicial error as impeaching the credibility of the witness in the eyes of the jury, the Court, speaking through Stacy, C.J., stated:

'Undoubtedly, the jury must have concluded that the court thought the witness was guilty of perjury or of criminal relations with a female juvenile, either of which, we apprehend, was calculated to weaken his testimony in the eyes of the jury. State v....