STATE
v.
Calvin Foster McBRYDE.
No. 672.
Supreme Court of North Carolina.
June 20, 1967.*267 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 *268 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. Swink, 151 N.C. 726, 66 S.E. 448, 19 Ann.Cas. 422. There is no suggestion of any contumacy on the part of the witness. State v. Slagle, 182 N.C. 894, 109 S.E. 844; Seawell v. Carolina Cent. R. Co., 132 N.C. 856, 44 S.E. 610; 53 Am.Jur. 82. Nor do we think the later instruction to the jury to banish the incident from their minds cured the defect."
In the case of State v. Simpson, 233 N.C. 438, 64 S.E.2d 568, two of defendant's witnesses were arrested in the presence of some members of the jury during noon recess of court. When court resumed, the witnesses were brought into court in custody. The Court held that this was prejudicial error and ordered a new trial. See also State v. Wagstaff, 235 N.C. 69, 68 S.E.2d 858.
The State contends that since the court did not audibly order the witness into custody in the presence of the jury, there was no prejudicial error.
The State correctly contends that the circumstances of the case determine whether it is prejudicial to defendant for the trial court to order a witness into custody in the presence of the jury. State v. Wagstaff, supra. It is not necessary that the trial judge audibly in so many words order the witness into custody. Here, the witness Parker was told by the trial judge not to leave the courtroom, and shortly thereafter he was placed in custody in the prisoner's box in plain view of the jury. Parker was defendant's chief witness as to his principal defense. The words of the trial judge, coupled with his conference *269 with the sheriff and the ensuing action by the sheriff in placing the prisoner in custody would unerringly lead the jury to the conclusion that the witness was guilty of perjury or of some other crime, which could only result in weakening his testimony in the eyes of the jury.
The able and conscientious trial judge has inadvertently violated the provisions of G.S. § 1-180, and we do not think his later instructions removed the prejudicial error. State v. McNeill, supra.
Since there must be a new trial, we do not deem it necessary to discuss the other assignments of error as they may not arise on another trial.
New trial.