STATE
v.
EAGLE.
No. 724.
Supreme Court of North Carolina.
February 2, 1951.*172 Harry McMullan, Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., for the State.
Higgins & McMichael, Winston-Salem, for defendant.
DENNY, Justice.
The question posed for decision is whether the failure of the trial judge to sustain the defendant's objection to the proposal of the Solicitor to exhibit an unidentified bottle of whiskey to the jury for its inspection and examination for the evident purpose of bolstering the State's evidence against the defendant, constitutes prejudicial error in light of the following instruction given by the trial judge in his charge to the jury: "There is some evidence in the trial of the case here about a bottle of whiskey being found in the car. The Solicitor, in his argument, stated to counsel for the defendant that he would be willing to let the bottle be offered in evidence at that time. The defendant's counsel objected to the statement. You will not consider that argument at all; just disregard that."
It is apparent counsel for defendant argued strenuously to the jury that the defendant and his three friends had consumed less than half of a fifth of whiskey during the afternoon in question, and in support of his argument had pointed out the State's failure to introduce the bottle of whiskey taken from the defendant's car. Of course the real question before the jury was whether or not the defendant had driven his automobile upon a public highway of the State while under the influence of an intoxicating liquor. However, the Solicitor and counsel for the defendant chose to stress their respective contentions as to the amount of whiskey the defendant and his three friends had consumed during the afternoon, prior to the arrest of the defendant, emphasizing the evidence of their respective witnesses as to the amount of liquor remaining in the bottle at the time it was taken from the defendant's car, as having a material bearing on the defendant's condition at the time of his arrest. The offer by the Solicitor to exhibit the unidentified bottle of whiskey to the jury, for the purpose of refuting the argument made by defendant's counsel and in effect to bolster the State's contentions, was improper and the objection thereto by the defendant should have been sustained, and the jury instructed not to consider it.
If in the opinion of the Solicitor, the ends of justice required the exhibition to the jury of the bottle of whiskey taken from the defendant's car at the time of his arrest, the bottle should have been identified and introduced in evidence at the proper time during the course of the trial, or a motion made to reopen the case and permit its identification and introduction in evidence. State v. Perry, 231 N.C. 467, 57 S.E.2d 774; Miller v. Greenwood, 218 N.C. 146, 10 S.E.2d 708; Ferrell v. Hinton, 161 N.C. 348, 77 S.E. 224; Dupree v. Virginia Home Insurance Co., 93 N.C. 237; State v. Harris, 63 N.C. 1. When the ends of justice require it, evidence may be offered even after the argument of counsel, Williams v. Averitt, 10 N.C. 308, or after the jury has retired, State v. Noblett, 47 N.C. 418.
Now, as to the charge, it is clear that His Honor did not understand what the Solicitor proposed to do in connection with the bottle of whiskey he had sent for during the argument of defendant's counsel, or inadvertently stated that the Solicitor proposed to offer the bottle of whiskey in evidence. The Solicitor at no time, according to the record, proposed to offer the bottle of whiskey in evidence, but merely to exhibit it to the jury. The further statement by the court to the effect that "defendant's counsel objected to the statement", may have given the jury the impression that defendant's counsel had objected to the introduction of the bottle of whiskey in *173 evidence, which was not the case. This may have prejudiced the jury against the defendant, and the fact that the Solicitor abandoned his proposal to exhibit the bottle of whiskey to the jury, is immaterial. The damage, if any, was done. And while ordinarily an error such as that complained of may be cured in the charge, State v. Brackett, 218 N.C. 369, 11 S.E.2d 146, we think the mere statement "You will not consider that argument at all; just disregard that", was insufficient to cure the error in failing to sustain the defendant's objection and exception theretofore interposed.
As to what constitutes improper argument, and the effect of the rulings of the trial court with respect thereto, see State v. Bowen, 230 N.C. 710, 55 S.E.2d 466; State v. Correll, 229 N.C. 640, 50 S.E.2d 717; State v. Tucker, 190 N.C. 708, 130 S.E. 720, and cited cases.
We think the defendant is entitled to a new trial, and it is so ordered.
New trial.