State v. Owenby
| Decision Date | 18 September 1946 |
| Docket Number | No. 77.,77. |
| Citation | 39 S.E.2d 378 |
| Court | North Carolina Supreme Court |
| Parties | STATE. v. OWENBY. |
Appeal from Superior Court, Buncombe County; H. Hoyle Sink, Judge.
Grady Owenby, Jr., was convicted of having carnal knowledge with a female over 12 years and under 16 years of age, and he appeals.
New trial.
Criminal prosecution upon indictment charging that on the 15th day of September, 1945, the defendant did "wilfully and feloniously abuse and have carnal knowledge with one Dorothy Medford, she being over twelve years and under sixteen years of age and having never heretofore had sexual relation with any other person, " contrary to the statute in such cases made and provided, etc.
The prosecuting witness testified that she was 12 years old on 15 September, 1945; that the defendant carnally knew her on that date, and further: "No, I did not have intercourse with any man except the defendant."
Clarence Cody, a witness for the defendant, testified that the prosecuting witness had a bad reputation; that she had had several dates with him in his own house, when his wife was away; and that he had advised her she was too young and that she should go home, etc.
Following the evidence of this witness in the late afternoon on Monday after the jury had been given the case, the court ordered the witness held for grand-jury action on a charge of contributing to the delinquency of a minor.
On Tuesday morning, the jury was in the box at the opening of court to requestfurther instructions on the defendant's alibi. In the presence of the jury, the court reviewed what had taken place the day before, "made considerable comment derogatory of Cody, " and announced that as "it appears that the minor involved in this case is not a delinquent, " the bill heretofore sent to the grand jury in this matter will be recalled and the named defendant Cody discharged. Exception by the defendant.
Verdict: Guilty as charged in the bill of indictment.
Judgment: Imprisonment in the State's Prison for not less than one nor more than two years.
Defendant appeals, assigning errors.
Harry M. McMullan, Atty. Gen., and T. W. Bruton, Hughes J. Rhodes, and Ralph M. Moody, Asst. Attys. Gen., for the State.
James E. Rector, of Asheville, for defendant.
The sufficiency of the indictment is challenged, both by motion to quash the bill and by motion in arrest of judgment. But as a new trial is to be had for reasons hereafter stated, the solicitor can easily eliminate any objection by sending a new bill to the grand jury. It is always better in criminal matters to adhere to the established practice and to follow the beaten path. State v. Johnson, 226 N.C. 266, 37 S.E.2d 678.
The disparagement of the defendant's witness, Cody, and the expression of opinion that the minor in the case was not a delinquent, though inadvertently made in the presence of the jury, would seem to entitle the defendant to another hearing. G. S. § 1-180; State v. Auston, 223 N.C. 203, 25 S.E.2d 613; State v. Wyont, 218 N.C. 505, 11 S.E.2d 473.
No judge at any time during the trial of a cause is permitted to cast doubt upon the testimony of a witness or to impeach his credibility. State v. Winckler 210 N.C. 556, 187 S.E. 792; State v. Rhinehart, 209 N.C. 150, 183 S.E. 388; Morris v. Kramer Bros. Co....
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State v. Atkinson, No. 2
...form whatever, and it is the intent of the law to insure every litigant a fair and impartial trial before the jury. State v. Owenby, 226 N.C. 521, 39 S.E.2d 378 (1946). Any opinion or intimation of the judge at any time during the trial which prejudices a litigant in the eyes of the jury is......
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State v. Frazier, 1
...'it being the intent of the law to insure to each and every litigant a fair and impartial trial before the jury.' State v. Owenby, 226 N.C. 521, 39 S.E.2d 378 (1946). It has been construed to include any opinion or intimation of the judge at any time during the trial which is calculated to ......
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State v. Gibson, 651
...his credibility, or discredit the efforts of either party before the jury. State v. Cantrell, 230 N.C. 46, 51 S.E.2d 887; State v. Owenby, 226 N.C. 521, 39 S.E.2d 378; State v. Perry, 231 N.C. 467, 57 S.E.2d 774. This may be done by the use of language or conduct calculated to impair the cr......
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State v. Freeman
...177, 179 S.E.2d 410; State v. Belk, 268 N.C. 320, 150 S.E.2d 481; State v. Douglas, 268 N.C. 267, 271, 150 S.E.2d 412; State v. Owenby, 226 N.C. 521, 39 S.E.2d 378. It is equally clear that, as the defendant here concedes, the trial judge may direct questions to a witness for the purpose of......