CLARKSON, J., dissenting; CLARK, C. J., concurring in the dissenting opinion. Criminal prosecution tried upon an indictment charging H. S. Hicks and Robert J. Hart with having carnal knowledge of a female child over 12 and under 14 years of age, who had never before had sexual intercourse with any person. C. S., 4209.
The alleged offense of which the defendant was convicted occurred on 6 February, 1923, while the Superior Court of Granville County was in session. There was a preliminary hearing on the following day, before a justice of the peace, and both Hicks and Hart were bound over to the Superior Court. The case against Hart was tried in the Superior Court at the term then in session. Hicks, who was engaged in some highway work at Oxford, failed to appear and forfeited his bond. The material facts are as follows:
On the night of the alleged offense the defendant Hart, a boy 16 years of age, was returning to his work at Lyon's Drug Store, when he saw Hicks and a companion named Gill engaged in a conversation on the street. He stopped to talk with them, and very soon Gill mentioned the name of the prosecutrix. Hicks asked the defendant Hart if he knew the girl, and requested that he go with him in his one-seated Ford coupe to her home and they would bring her to the drug store for a drink. This Hart agreed to do.
When they reached the home of the prosecutrix, Hicks remained in the automobile while Hart went to the door and asked for the girl. They had some conversation about going to the drug store; and, after obtaining her mother's consent, the prosecutrix got into the car with Hicks and Hart, she sitting on the seat between them, and Hicks drove away. When they reached the corner at which it was necessary to turn in order to go to the drug store, Hicks drove his car in the opposite direction. Hart asked if they were not going to the drug store. Hicks said they did not want a drink, and the prosecutrix said that she would just as soon ride around.
As they were riding out College Street, Hicks and the prosecutrix engaged in a conversation which Hart could not hear on account of the noise of the machine. When they had passed out beyond the hospital and across the railroad, Hicks stopped the car on the side of the road and asked Hart if he had a rubber. (The prosecutrix said on her direct examination in the Superior Court that Hart asked Hicks about a rubber, but on her cross-examination she said she did not know which one asked the question. On her examination before the magistrate she said Hicks made the inquiry, and this is in accord with Hart's testimony.)
From this point on there is a conflict in the evidence for the State and that of the defendant. *Page 584
The prosecutrix testified that Hicks offered to get out of the car first, but that Hart said no, he would get out, and he did. Hicks then had sexual intercourse with the prosecutrix without any resistance on her part, as she testified: "I did not attempt to resist. He was in the car with me about seven minutes. Hicks got up and did not say anything. Robert Hart was then standing at the door of the car. Hicks got out of the car. Hart got in the car. He said he was going to do what Hicks did. I told him that he was not, and he blew the horn and Hicks got in and turned the car around and we came back to town."
Hart testified that he had no knowledge of Hicks' ulterior purpose until he asked about a rubber, and that he then told Hicks that if he was going to do anything like that he would get out of the car and go back to town. He did get out and had started back when he decided that, as he had gone to the girl's home and asked her to go with them for a drink, he ought not to leave her; whereupon he turned around and went back to the car and they all three came back to Oxford. When they reached the home of the prosecutrix, Hart helped her out of the car and went to the door with her. She asked him what excuse she should give her mother for staying out so late. Hart suggested she might say they were detained at the store on account of a rush and he was busy waiting on customers.
The prosecutrix told her mother, soon after she reached home, that she had been abused, but she stated to her father that Hart had treated her like a gentleman. He did not have intercourse with her. The prosecutrix further testified that she was 13 years old and had never had intercourse with any other person; that she had not been introduced to Hicks before that night, though she had talked with him on the street.
Hart was convicted of aiding and abetting Hicks in the commission of the alleged offense and sentenced to five years in the State's Prison. He appeals, assigning errors. The defendant's demurrer to the evidence and motion for dismissal, or for judgment as of nonsuit under C. S., 4643, was properly overruled. An aider and abettor is one who advises, counsels, procures, or encourages another to commit a crime, whether personally present or not at the time and place of the commission of the offense. 2 C. J., 1024. And if two persons aid and abet each other in the commission *Page 585 of a crime, both being present, both are principles and equally guilty. S.v. Jarrell, 141 N.C. 722; S. v. Skeen, 182 N.C. 844.
In S. v. Davenport, 156 N.C. p. 614 (opinion by Walker, J.), it is said: "A person aids and abets when he has `that kind of connection with the commission of a crime which, at common law, rendered the person guilty as a principal in the second degree. It consisted in being present at the time and place, and in doing some act to render aid to the actual perpetrator of the crime, though without taking a direct share in its commission.' Black's Dict., p. 56, citing 4 Blackstone, 34. An abettor is one who gives `aid and comfort,' or who either commands, advises, instigates, or encourages another to commit a crime — a person who, by being present, by words or conduct, assists or incites another to commit the criminal act (Black's Dict., p. 6); or one `who so far participates in the commission of the offense as to be present for the purpose of assisting, if necessary; and in such case he is liable as a principal.' 1 McLain Cr. Law, sec. 199."
But mere presence, and no more, is not sufficient to make one an aider and abettor. "For one who is present and sees that a felony is about to be committed, though he may do nothing to prevent it, does not thereby participate in the felony committed. Every person may, upon such an occasion, interfere to prevent, if he can, the perpetration of so high a crime; but he is not bound to do so at the peril, otherwise, of partaking of the guilt. It is necessary, in order to have that effect, that he should do or say something showing his consent to the felonious purpose and contributing to its execution, as an aider and abettor." Ruffin, C. J., inS. v. Hildreth, 31 N.C. 440.
To like effect is the language of Chief Justice Smith of the Supreme Court of Mississippi in the recent case of the Crawford v. State, 97 So. 534: "In order for one to aid and abet the commission of a crime he must do something that will incite, encourage, or assist the actual perpetrator in the commission of the crime. Mere presence, even with the intention of assisting in the commission of a crime, cannot be said to have incited, encouraged, or aided the perpetrator thereof, unless the intention to assist was in some way communicated to him. The law does not punish intent which is without influence on an act."
Again, in Burrell v. The State, 18 Tex., p. 732, Wheeler, J., quoting from Roscoe Cr. Ev., 213, says: "Although a man be present whilst a felony is committed, if he take no part in it, and do not act in concert with those who committed it, he will not be a principal in the second degree, merely because he did not endeavor to prevent the felony, or apprehend the felon." See, also, Whart. Am. Cr. L., 6364; Whart. L. Homicide, 157. *Page 586
The following are the defendant's main exceptions and assignments of error:
1. At the close of the State's evidence, the defendant's motion for judgment as of nonsuit was overruled. Then the solicitor, as the court was about to take a recess for the night, in open court, and in the presence of the jury, addressed the court and prayed the defendant into custody. The defendant was under a bond of $1,000, which had been ordered given the previous week of the court, and under order of the court, the bond was conditioned upon the appearance of the defendant each day during the term and not to depart without leave. In the presence of the jury, the presiding judge ordered the defendant into the custody of the sheriff. No question was raised by the solicitor as to the sufficiency of the sureties on the bond. The court stated, in the hearing of the jury, that putting the defendant in custody did not mean at all that the court thought he was guilty. To both the prayer of the solicitor and the order of the court, in the presence of the jury, the defendant excepted.
2. In the course of his Honor's charge to the jury he said: "The law used to be if a man had connection with a girl under 10, it was a capital felony, and if between the ages of 10 and 12, it was a felony if she had never before had sexual intercourse. The Legislature later moved the age of consent up to 14 (and a few days ago, one House of the Legislature passed a bill, I believe, moving the age of consent up to 16 years)." Exception by defendant to that part in parenthesis.
3. Again in the charge: "The defendant introduced certain character witnesses, the Rev. Mr. Black, the chief of police, a man named Floyd, and several others. They all stated his character was good. You will remember who the witnesses were and what they said. In answer to this character evidence, the State contends that neither of these character witnesses said Hart didn't go out with Hicks to have connection with the girl, and did not testify as to what did or did not take place." Exception by defendant. See opinions of Henderson, C. J., and Daniel, J., in S. v. Lipsey, 14 N.C. 485.
4. Still again in the charge: "Every case of this nature, if the defendant's guilt be established, which results in an acquittal, tends to injure society." Exception by defendant.
5. And again in the charge: "I am not appearing for either side. I am not interested in Mr. Hart's acquittal, and I am not especially interested in his conviction, but I am interested in seeing that both the State and the prisoner have a perfectly fair trial." Defendant excepted.
6. The defendant also excepted because in the charge his Honor repeatedly called the attention of the jury to the contentions of the State, while but slight reference was made to the contentions of the defendant. *Page 587
7. Finally, the defendant excepted for that his Honor failed to instruct the jury as to the law relating to aiding and abetting, but simply charged the jury that the defendant Hart would be guilty if he aided or abetted Hicks, without any explanation or instruction as to what constituted aiding and abetting.
Defendant earnestly contends that these exceptions, taken as a whole, or in their totality, if not singly, make it quite clear that his Honor, at times during the trial, was inadvertent or inattentive to the provisions of C. S., 564, which provides: "No judge, in giving a charge to the petit jury, either in a civil or a criminal action, shall give an opinion whether a fact is fully or sufficiently proven, that being the true office and province of the jury; but he shall state in a plain and correct manner the evidence given in the case and declare and explain the law arising thereon."
This statute has been interpreted by us to mean that no judge, in charging the jury or at any time during the trial, shall intimate whether a fact is fully or sufficiently proved, it being the true office and province of the jury to weigh the testimony and to decide upon its adequacy to establish any issuable fact. It is the duty of the judge, under the provisions of the statute, to state in a plain and correct manner the evidence given in the case and to declare and explain the law arising thereon, without expressing any opinion upon the facts. Morris v. Kramer,182 N.C. 87; S. v. Cook, 162 N.C. 586; Park v. Exum, 156 N.C. p. 231. "There must be no indication of the judge's opinion upon the facts, to the hurt of either party, either directly or indirectly, by words or conduct."Bank v. McArthur, 168 N.C. p. 52. And in S. v. Ownby, 146 N.C. p. 678, it was said: "The slightest intimation from a judge as to the strength of the evidence, or as to the credibility of a witness, will always have great weight with a jury and, therefore, we must be careful to see that neither party is unduly prejudiced by any expression from the bench which is likely to prevent a fair and impartial trial."
The judge may indicate to a jury what impression the testimony or evidence has made on his mind, or what deductions he thinks should be made therefrom, without expressly stating his opinion in so many words. This may be done by his manner or peculiar emphasis or by his so arraying and presenting the evidence as to give to one of the parties an undue advantage over the other; or, again, the same result may follow the use of language, or 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. It can make no difference in what way or when the opinion of the judge is conveyed to the jury, whether directly or *Page 588 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. "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." Withers v. Lane,144 N.C. p. 192.
The able and learned judge who presided at the trial of this cause was inspired, no doubt, by a laudable and profound sense of justice, but we think it is quite clear, from the above exceptions, that an unfavorable impression against the defendant was conveyed to the jury by his Honor, unintentionally, of course, and in an earnest desire to see that the right, as he conceived it, 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 imposes its restraint upon the judge, enjoining strictly that he shall not in any manner sway the jury by imparting to them the slightest knowledge of his own opinion of the case. "A charge, therefore, which indicates to a jury what is the opinion of the court upon the evidence violates the act. We all know how earnestly, in general, juries seek to ascertain the opinion of the judge trying the 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 — 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 conclusions on the facts." Nash, C. J., in Nash v. Morton, 48 N.C. p. 6.
Our most able and upright judges, at times, have inadvertently overstepped the limits fixed by the law; and in each case this Court has enforced the injunction of the statute and restored the injured party to a fair and equal opportunity before the jury. Our view that the statute has been violated in the instant case is sustained by the authorities already cited, and to which the following may be added: S. v. Rogers, 173 N.C. 755;S. v. Horne, 171 N.C. 787; Chance v. Ice Co., 166 N.C. 495; Ray v.Patterson, 165 N.C. 512; Sprinkle v. Foote, 71 N.C. 411; Powell v. R.R., 68 N.C. 395; Reiger v. Davis, 67 N.C. 185; S. v. Bailey, 60 N.C. 137;S. v. Dick, 60 N.C. 440; S. v. Pressley, 35 N.C. 494; S. v.Thomas, 29 N.C. 381; S. v. Davis, 15 N.C. 612; Reel v. Reel, 9 N.C. 63.
Speaking of a similar situation in S. v. Dick, supra, Manly, J., said" "This (referring to the statute), we suppose, has been adopted to maintain undisturbed and inviolate that popular arbiter of rights, the trial by jury, which was, without some such provisions, constantly in danger from the will of the judge acting upon men mostly passive in their *Page 589 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."
The capable and painstaking judge who presided at the trial did not intend to prejudice the defendant's case, but, after a careful and earnest consideration of the record, we are constrained to believe that the defendant is entitled to a new trial, and such will be awarded.
In view of the wide range of discussion which the case has taken, it may not be amiss to remark that the defendant is not to be released or discharged; he is to be tried again. A new trial does not mean an acquittal; it signifies an effort and determination on our part, in keeping with numberless precedents, to preserve to the defendant his constitutional right of trial by jury. 24 Cyc., 100. This right, says Judge Story, is justly dear to the American people; it has ever been esteemed by them as a privilege of the highest and most beneficial nature. See, also, 3 Bl. Com., 271.
"The just purpose and excellence of trial by jury, especially in criminal cases, are not imaginary and whimsical, or the outgrowth of popular ignorance and persistent clamor. While it is not perfect as a method of trial, has its imperfections, and is sometimes perverted and prostituted, nevertheless the practical experience of one of the freest and most enlightened nations of the earth for centuries and of this country during all the time of its existence, the sanction of it by the wisest statesmen and jurists in different ages, as well as common sense, have proved its inestimable value as the best method of trial, in criminal cases especially, and the necessity for it as a constituent provision in any system of free government." Merrimon, J., in S. v. Holt, 90 N.C. p. 751.
It is our duty, under circumstances like the present, to declare the law with impartial neutrality and to hold the scales of justice with an even hand. To this end, it is expressly enjoined in the bill of rights that no man shall be "deprived of his life, liberty, or property but by the law of the land." As the case goes back for another hearing, by reason of what we conceive to be an erroneous expression of opinion by the trial court, we refrain from any discussion of the evidence.
After a careful scrutiny of the record, we have arrived at the conclusion that the defendant, in the present case, has not been tried in accordance with the law as it prevails in this jurisdiction. It is fundamental with us that every citizen, charged with crime, shall be given a *Page 590 fair, impartial and lawful trial by a jury of his peers. We think his Honor overstepped the bounds, inadvertently of course, but nevertheless to the prejudice of the defendant. The writer knows from a personal acquaintance with the trial judge, and from the records which come to this Court, that he usually protects, with sedulous care, the rights of a defendant in a criminal prosecution as well as those of the State. He was not conscious of expressing any opinion adverse to the defendant in this case, but we think the jury must have so understood his remarks, as appears from the above exceptions.
Venire de novo.