The prisoner, a boy of 15 or 16 years of age, was convicted of an assault with an intent to commit rape upon a female child of the age of 6 years. The exception of the prisoner is to (438) the judge's charge to the jury.
The prisoner's counsel in his argument to the jury attempted to show from the evidence that the prisoner did not have the intent to commit *Page 294 the offense charged. The case then states that "His Honor, in commenting upon the testimony, and referring to the theory of the State, remarked with emphasis, `Why was she on her back, then? and why was he on her? The counsel for the State asked, why was it, if you believe the testimony.' His Honor at no time referred to the theory or argument presented by the counsel of the prisoner." So much of the charge is transcribed as presents the exception, but no other part of it explains or qualifies the language above set forth. The exception is that this language was an expression of the opinion of the court as to the guilt of the prisoner, and was a violation of the act, Rev. Code, ch. 31, sec. 130. The parties had taken issue upon these very facts, as indicating or not indicating the intent charged, and upon which the judge, by his language and emphasis, as we think, very clearly intimated an opinion adverse to the prisoner. It was at this material point in the dispute, especially, that the statute restrained, and was intended to restrain, the judge from any expression of opinion to the jury upon the facts in evidence. S. v. Angel, 29 N.C. 27;S. v. Dixon, 75 N.C. 275; Crutchfield v. R. R., 76 N.C. 320.
As the evidence appears in the record, it may well admit of doubt if there was that felonious and wicked intent on the part of this boy which constitutes the crime charged. It was certainly an offense which called for the severe discipline of the domestic forum, and to a certain extent that seems to have been inflicted.
PER CURIAM. Venire de novo.
Cited: Williams v. Lumber Co., 118 N.C. 939; S. v. Howard, 129 N.C. 673;Withers v. Lane, 144 N.C. 188; Speed v. Perry, 167 N.C. 127.
(439)