concurring: I do not think that the Judge below had the right, in his discretion, to deny the examination of the witness.
There are decisions which uphold this ruling. There is also strong authority to the contrary; and I would never agree to the proposition that in a prosecution of this character a prisoner could be deprived of testimony material to his defense because a witness, during the progress of the trial, had entered the court-room in violation of the Judge’s order.
Holding this view, however, I think the judgment should be affirmed for the reason that it nowhere appears, nor can it be discovered, that any harm has come to the prisoner by this action of the trial Judge.
This is not a case where a prisoner was without counsel, and may have erred in ignorance of his rights; nor where the witness had refused to disclose the purport of his testimony. On the contrary, the ease shows that the prisoner was represented by counsel, faithful, learned and capable, who had examined the witness and claimed to know what his testimony would disclose.
Neither at the trial, nor at any other time, nor in any way, has this testimony been stated in substance or tenor so that the Court can see its materiality.' On the contrary, as pointed out in the principal opinion, it appears, and almost conclusively, that if the witness was aware of any relevant fact or circumstance, the evidence was hardly of importance and could not possibly have affected the result.
*685A perusal of the case leads to the conclusion that the counsel, in the presence of desperate circumstance, was not aggrieved by the denial of a substantial right or the rejection of evidence which he regards as of consequence, but was seeking for an exception upon which he could successfully maintain an appeal. >
Such an exception, so presented, is, to my mind, entirely too indefinite and speculative for serious regard in the administration of the practical affairs of life; and to hold it for reversible error would render the enforcement of the criminal law well-nigh impossible.
As said in Cherry v. Canal Co., 140 N. C., 422, quoting from Pl. and Pr., vol. 2, p. 500:
“This system of appeals is founded on public policy, and appellate courts will not encourage litigation by reversing jridgments for technical, formal or other objections, which, the record shows could not have prejudiced the appellant’s rights.”
And from Ashe, J., in Butts v. Screws, 95 N. C., 215 :
“A new trial will not be granted when the action of the trial Judge, even if erroneous, could, by no possibility, injure the appellant.”
This sound and salutary principle obtains in criminal as well as in civil causes, and, applied to this case, shows that the trial is free from reversible error.
I am of opinion that the judgment below should be affirmed.