After stating the case: The Legislature has wisely provided that no judge, in charging a jury, shall intimate whether a fact is fully or sufficiently proven, it being the true office and province of the jury to weigh the testimony and decide upon its adequacy to establish any issuable fact. The judge's function is positively restricted to stating in a plain and correct manner the evidence given in the case and to declaring and explaining the law arising thereon. Revisal, sec. 535. He may clearly indicate to a jury what impression the testimony (188) has made upon his mind or what deductions should be made therefrom, without expressly stating his opinion upon the facts. This may be done by his manner or peculiar emphasis or by his so arraying and presenting the evidence as to give one of the parties an undue advantage over the other; or, again, the same result will follow the use of language or a form of expression calculated to impair the credit which might otherwise and under normal conditions be given by the jury to the testimony of one of the parties. S. v. Dancy, 78 N.C. 437; S. v. Jones, 67 N.C. 285. It can make no difference in what way the opinion of the judge is conveyed to the jury, whether directly or indirectly. The act forbids an intimation of his opinion in any and every form, the intent of the law being that each of the parties shall have an equal and a fair chance before the jury. Construing this statute, Judge Nash said: "We all know how earnestly, in general, juries seek to ascertain the *Page 132 opinion of the judge who is trying a cause upon the controverted facts, and how willing they are to shift their responsibility from themselves to the court. The governing object of the act was to guard against such results and to throw upon the jurors themselves the responsibility of responding to the facts of the case. Nor is it proper for a judge to lead the jury to their conclusion on the facts." Nash v. Morton, 48 N.C. 3.
As this case must go back for a new trial, it will be prudent and perhaps also seemly that we should refrain from commenting upon the testimony and the charge any more than is absolutely necessary for the purpose of deciding the question before us. We cannot read the instructions of the court without being impressed with the belief that its general trend is clearly against the plaintiff; and that it is argumentative cannot well be doubted. It was not intended to be so, we are (189) quite sure, but nevertheless places the plaintiff's testimony in an unfavorable light before the jury, while that of the defendant is treated with greater consideration. Whether the plaintiff had in fact been contradicted or not, was a question for the jury to decide, and not for the court. The latter might very properly have called attention to the apparent conflict in the testimony, and have explained to the jury the nature of the different kinds of evidence, and it may have been within the judge's province to have stated what the evidence on either side tended to prove, but he could not tell the jury what it actually did prove, and this could not be done either by the manner of charging the jury or by the peculiar language employed. Apart from all this, there are expressions of the court which we cannot approve and which we think tended to prejudice the plaintiff. The adverse tenor and tone of the charge must have had the same effect. The general result is that the plaintiff was made to carry a greater burden than the law imposed upon him.
The parties had taken issue upon the fact of settlement, and the plaintiff was entitled to have his testimony fairly considered by the jury, even though his statements had conflicted with those of the defendant and another witness. Instead, his testimony was contrasted with that of the defendant in a way which must have discredited him with the jury at the very outset or diminished the force and weight of what he had said. This was a hindrance to him, if not a distinct handicap.
The learned and able judge who presided at the trial, inspired, no doubt, by a laudable motive and a profound sense of justice, was perhaps too zealous that what he conceived to be the right should prevail; but just here the law, conscious of the frailty of human nature at its best, both on the bench and in the jury box, intervenes and (190) imposes its restraint upon the judge, enjoining strictly that he *Page 133 shall not in any manner sway the jury by imparting to them the slightest knowledge of his own opinion of the case. The English practice and also the Federal practice permit this to be done, but not ours. With us the jury are the sole and independent triers of the facts, and we hold the right of trial by jury to be sacred and inviolable. Any interference with it is prohibited.
The books disclose the fact that able and upright judges have sometimes overstepped the limit fixed by the law; but as often as it has been done this Court has enforced the injunction of the statute and restored the injured party to the fair and equal opportunity before the jury which had been lost by reason of the transgression, however innocent it may have been; and we must do as our predecessors have done in like cases. Our view that the charge violates the statute is sustained by the cases already cited, to which the following may be added: S. v. Bailey, 60 N.C. 137; S.v. Thomas, 29 N.C. 381; S. v. Pressley, 35 N.C. 494; S. v. Rogers,93 N.C. 525; S. v. Dick, 60 N.C. 440; Reel v. Reel, 9 N.C. 63; Reiger v.Davis, 67 N.C. 185; S. v. Davis, 15 N.C. 612; Sprinkle v. Martin,71 N.C. 441. Powell v. R. R., 68 N.C. 395, seems to be very much in point, and the following language of Justice Rodman is applicable to this case: "We think that the general tone of the instructions is warmer and more animated than is quite consistent with the moderation and reserve of expression proper in stating the evidence to the jury in a plain and correct manner, and declaring and explaining the law arising thereon. There are passages which a jury might fairly understand (though not intended) as expressing an opinion on the facts."
We may well close this part of the case with the apt and expressive language of Judge Manly when speaking of a similar charge: "This (referring to the statute), we suppose, has been adopted to (191) maintain undisturbed and inviolate that popular arbiter of rights, the trial by jury, which was, without some such provision, constantly in danger from the will of the judge acting upon men mostly passive in their natures, and disposed to shift off responsibility; and in danger also from the ever active principle that power is always stealing from the many to the few. We impute no intentional wrong to the judge who tried this case below. The error is one of those casualties which may happen to the most circumspect in the progress of a trial on the circuit. When once committed, however, it was irrevocable, and the prisoner was entitled to have his case tried by another jury." S. v. Dick, supra. And we may appropriately add the words of Chief Justice Taylor, uttered under like circumstances: "Upon considering the whole of the charge, it appears to us that its general tendency is to preclude that full and free inquiry into the truth of the facts which is *Page 134 contemplated by the law, with the purest intentions, however, on the part of the worthy judge, who, receiving a strong impression from the testimony adduced, was willing that what he believed to be the very justice of the case should be administered. We are not unaware of the difficulty of concealing all indications of the conviction wrought on the mind by evidence throughout a long and complicated cause; but the law has spoken, and we have only to obey." Reel v. Reel, supra. What those eminent jurists have so well said about the duty of the trial judge, under our statute, and the consequences of a violation of it, will, if it is properly heeded, conduce to a more perfect and satisfactory trial of causes. 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 (192) 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.
The plaintiff also assigned as error the judge's comments and criticisms upon the address of one of his attorneys to the jury, which he alleges were improper and prejudicial. It is not necessary to consider this and the other exceptions, as they may not be presented at the next trial. The error of the court requires that another trial should be awarded.
New trial.
Cited: Metal Co. v. R. R., 145 N.C. 297; S. v. Ownby, 146 N.C. 678;Park v. Exum, 156 N.C. 231; Burroughs v. Burroughs, 160 N.C. 519; S. v.Bateman, 162 N.C. 588; S. v. Harris, 166 N.C. 247; Chance v. Ice Co.,ib., 497; Speed v. Perry, 167 N.C. 127; Medlin v. Board of Education,ib., 244; Bank v. McArthur, 168 N.C. 53; S. v. Beal, 170 N.C. 768;Lassiter v. R. R., 171 N.C. 287; S. v. Horne, ib., 788; Starling v.Cotton Mills, ib., 228; Swain v. Clemmons, 172 N.C. 279.