State v. Perry
| Decision Date | 01 March 1950 |
| Docket Number | No. 75,75 |
| Citation | 57 S.E.2d 774,231 N.C. 467 |
| Parties | STATE, v. PERRY et al. |
| Court | North Carolina Supreme Court |
Harry M. McMullan, Atty. Gen., and Rayph M. Moody, Asst. Atty. Gen., for the State.
Robert W. Jones, Bailey, for defendants.
In the light of the evidence adduced in the trial below, we concur in the ruling of the trial judge in refusing to sustain the defendants' motions for judgment as of nonsuit, and the exceptions entered thereto are overruled. State v. Fentress, 230 N.C. 248, 249, 52 S.E.2d 795; State v. Holbrook, 228 N.C. 582, 46 S.E.2d 842; State v. Turner, 220 N.C. 437, 17 S.E.2d 501; State v. Epps, 213 N.C. 709, 197 S.E. 580; State v. Rhodes, 210 N.C. 473, 187 S.E. 553; State v. Langley, 209 N.C. 178, 183 S.E. 526; State v. Weston, 197 N.C. 25, 147 S.E. 618; State v. Baldwin, 193 N.C. 566, 137 S.E. 590.
The defendants seriously contend that the manner in which the trial judge examined the defendants' witnesses and the type of questions propounded to them, amounted to an expression of opinion by the Court, in violation of G.S. § 1-180, and the decisions thereunder, citing State v. Cantrell, 230 N.C. 46, 51 S.E.2d 887; State v. Oakley, 210 N.C. 206, 186 S.E. 244; State v. Bryant, 189 N.C. 112, 126 S.E. 107, and State v. Jones, 181 N.C. 546, 106 S.E. 817.
It is well settled in this jurisdiction that it is improper for a trial judge to ask questions for the purpose of impeaching a witness. Counsel may do so of any adverse witness, but this privilege does not extend to the trial judge. State v. Cantrell, supra; State v. Bean, 211 N.C. 59, 188 S.E. 610.
Moreover, questions propounded by the Court, as well as remarks made to or about a witness, which are clearly calculated to convey to the jury the impression that the testimony of the witness, in the opinion of the Court, is probably unworthy of belief is error. And the fact that an exception was not entered at the time the question was propounded or the remark was uttered is immaterial. All expressions of opinion by the judge during the trial, like the admission of evidence made incompetent by statute, may be excepted to after verdict. State v. Bryant, supra.
On the other hand, there are times in the course of a trial, when it becomes the duty of the judge to propound competent questions in order to obtain a proper understanding and clarification of the testimony of the witness or to bring out some fact that has been overlooked. But the trial judge should not by word or mannerism convey the impression to the jury that he is giving it the benefit of his opinion on the facts. State v. Harvey, 214 N.C. 9, 197 S.E. 620; State v. Hart, 186 N.C. 582, 120 S.E. 345, 347. In the last-cited case, Stacy, C. J., in discussing this question, said: State v. Rogers, 173 N.C. 755, 91 S.E. 854, L.R. A.1917E, 857; Morris v. Kramer Bros. Co., 182 N.C. 87, 108 S.E. 381; State v. Winckler, 210 N.C. 556, 187 S.E. 792; State v. Owenby, 226 N.C. 521, 39 S.E.2d 378.
It does not follow, however, that every ill-advised comment by the trial judge or question propounded by him which may tend to impeach the witness, is of such harmful effect as to constitute reversible error. The comment made or the question propounded should be considered in the light of all the facts and attendant circumstances disclosed by the record, and unless it is apparent that such infraction of the rules might reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless. Applying this criterion in the instant case, it is our opinion the evidence brought out by the Court, when considered in light of all the facts and attendant circumstances, disclosed by the record, was not of such prejudicial nature...
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...might reasonably have had a prejudicial effect on the result of the trial, the error will be considered harmless." State v. Perry, 231 N.C. 467, 471, 57 S.E.2d 774, 777 (1950). In the instant case, the comments of the trial judge were less than exemplary, though it should be noted that the ......
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