dissenting: The State’s evidence consisted of tbe testimony of a State Highway Patrolman, a deputy sheriff and tbe sheriff. Tbe patrolman and the deputy sheriff observed tbe defendant while be was driving and when be was arrested and taken to jail. Tbe sheriff observed him later when be was released from jail after furnishing bond. All were of tbe opinion that be was under tbe influence of some intoxicant.
Tbe testimony of tbe State’s witnesses, if accepted as worthy of belief, was fully sufficient to support a conviction. Tbe testimony of the defendant, and of one of tbe two ladies riding with him on tbe occasion of bis arrest, if accepted as credible, exonerated tbe defendant. It was a case for tbe jury. Tbe defendant does not contend otherwise.
Upon tbe jury’s return of a verdict of guilty, tbe defendant moved that tbe verdict be set aside on tbe ground “that the argument of tbe Solicitor was prejudicial.” Tbe exceptive assignments of error are to tbe refusal of tbe trial judge to set aside tbe verdict and to tbe judgment pronounced, namely, that tbe defendant pay a fine of $100.00 and tbe costs.
To appreciate tbe evidential background for tbe solicitor’s address to tbe jury, the following portions of tbe evidence should be noted.
All tbe evidence tended to show that tbe defendant was operating a Lincoln car. A State’s witness identified tbe ear as a 1954 four-door *637Lincoln. Tbe defendant’s testimony was that be bad purchased it tbe previous week, that it bad automatic, power steering, and tbat be was unfamiliar witb it. He further testified tbat be traveled out of Ealeigh, covering seven southern states and driving about four thousand miles a month.
Tbe State’s evidence tended to show tbat tbe defendant stated on tbe occasion of bis arrest tbat be bad recently been transferred from Texas to Ealeigh. Tbe State’s evidence also tended to show tbat defendant’s car bore a North Carolina license tag and tbat defendant bad and produced a Texas operator’s license.
Tbe defendant explained tbe State’s evidence to tbe effect tbat be failed to dim bis bright lights when tbe approaching patrol car’s lights were blinked several times, by bis testimony tbat tbe car be bad been driving was equipped witb automatic dimmers and tbat be “could have forgotten” tbe fact tbat it was necessary to press a button to dim tbe bright lights on bis recently acquired Lincoln car.
The defendant explained tbe State’s evidence to tbe effect tbat be was operating bis car back and forth from tbe edge of the pavement to a foot or so across tbe center line, by bis testimony as follows: “Tbe type of road I came down witb respect to curves and tbe type of road, seems like it’s all hair-pin curves and up and down bill and very narrow. As I said, I drive about four thousand miles a month and have never seen one like tbe one out here for tbe next ten miles.”
All tbe evidence tends to show tbat there was a pint of ABO whiskey in defendant’s car, tbe seal unbroken.
Defendant’s testimony tended to show tbat be and tbe two ladies were driving from Ealeigh to Eeidsville, where they were to meet a man from bis company arriving by train from Lynchburg; tbat be bad drunk no whiskey; tbat be bad a bottle of beer at a drive-in as they left Ealeigh; and tbat farther along tbe way be stopped again and bad a cheese sandwich and another bottle of beer.
In tbe record, under tbe caption, “Prosecutor’s Summation To Jury,” there are six numbered paragraphs, each setting forth an excerpt from tbe solicitor’s address to tbe jury. While tbe record imports verity, attention is called to tbe fact tbat tbe prosecutor’s summation is not given in its entirety and so does not disclose tbe context of tbe solicitor’s challenged remarks. It seems only fair to infer tbat these remarks were in some degree if not wholly in reply to tbe preceding (undisclosed to us) arguments by defense counsel.
An advocate, in addressing tbe jury, has tbe right, and indeed it is bis function, to analyze tbe evidence and present every inference and every deduction tending to support bis contention as to tbe facts established thereby. Where, as here, the testimony of the State’s witnesses *638and that of the defense witnesses cannot be reconciled because in direct conflict, so that tbe jury’s task is largely one of determining the credibility or non-credibility of each witness, the advocate’s rightful sphere of argument includes his contention as to each circumstance relevant to such determination reasonably arising from a consideration of the evidence before the jury.
While many, if not all, of the solicitor’s challenged remarks have their roots in evidence before the court, I agree that the detached excerpts set forth in the record are objectionable as an appeal to prejudice in their emphasis upon the fact that the defendant was a stranger in the community and in the contention that he was a man of means.
But when an improper argument is being made, the rule is that counsel must object so that the presiding judge can call a halt to the continuance thereof. There are at least two underlying reasons for this well-established rule. First, there can be no question then as to the content and context of the objectionable statements. Second, the presiding judge, then and there, can stop such argument and promptly instruct the jury to disregard it and, equally important, caution and instruct the advocate to pursue the argument no further.
An unfair argument may and frequently does cause a jury to react unfavorably to the advocate’s cause. Of course, the trial judge may take the initiative, if he hears the argument and considers it a manifest abuse of privilege, by then intervening and instructing the jury and the advocate with reference thereto. But ordinarily the trial judge will leave it to counsel for the opposing litigant to determine whether he desires that the court intervene or whether he prefers to rely upon the good sense and judgment of the jury either to disregard it entirely as irrelevant or to reject it as unfair.
Here, the defendant was represented by a trial attorney of long experience. He did not see fit to object at any time during the solicitor’s argument. The first objection was made after verdict.
Although defense counsel interposed no objection, the presiding judge, in his charge to the jury, gave the instructions set out below.
Near the first of his charge, this instruction was given:
“You are not concerned about what kind of car a man drives; the fact that a man drives a Lincoln automobile does not deprive him of the same rights and privileges of a man driving a Ford; and, the fact that a man drives a Ford, does not deprive him of the same rights and privileges of a man driving a Lincoln automobile. You are not to be concerned about, and I’m sure that you will not even consider what kind of a car the defendant was driving. The only question is: Has the State satisfied you from the testimony and beyond a reasonable doubt of his guilt ? If so, it is your duty to convict him; if not, it is equally your duty to acquit him.”
*639In concluding bis charge, these instructions were given :
“It all revolves itself into purely a question of fact for you to determine, you being the sole triers of the facts. It is your duty to give a gentleman not living in this county and coming into the State from Texas to live the same fair, just, and impartial trial that you would expect for yourselves or some member of your family if tried here or in another county — to be treated as fairly as anybody else without regard to where he came from or regard to his property or lack of property; the only thing you are concerned about is to find the truth and speak the truth and let it please whom it will.
“If you find beyond a reasonable doubt that the defendant was under the influence of liquor at the time he was arrested by the State Highway Patrolman, Mr. Norwood, and that he was operating his automobile at that time, it is your duty to find him guilty. If you have a reasonable doubt about it, give him the benefit of that doubt and find him not guilty.”
In my opinion, the quoted instructions were entirely satisfactory. Defense counsel evidently thought so for he made no request for additional instructions. Had he done so, the trial judge could have instructed the jury further relative to features to which attention was directed. Moreover, no exception to the sufficiency of these instructions was taken and error is not assigned on account of any insufficiency thereof.
It is pointed out in the opinion of the Court that the trial judge did not at any time tell the jury to disregard the challenged excerpts from the solicitor’s address to the jury. In my view, it was better to instruct the jury as was done, directing attention to the single issue for decision and instructing the jury that whether the man was from Texas or North Carolina or a man of means or one without means should have no part in their decision. I think the trial judge handled the matter in excellent manner. The alternative would have been a repetition of the objectionable statements and contentions of the solicitor coupled with an instruction that they were improper and therefore should be disregarded by the jury in its deliberations. The repetition of the objectionable excerpts for the purpose of eliminating them from consideration might well have emphasized rather than eliminated the prejudicial effect, if any, they may have had.
Except in capital cases, under the rule established in S. v. Tyson, 133 N.C. 692, 45 S.E. 838, which overruled earlier eases in conflict therewith, a defendant, when represented by counsel, cannot sit by, interpose no objection or motion for mistrial, take his chances with the jury, and then, after verdict, complain for the first time that portions of the solicitor’s argument constituted a prejudicial abuse of privilege for which he is entitled to a new trial.
*640'With, the law as stated in the opinion of the Court, I am in accord. Further, I do not question the authority of this Court, in the exercise of its general supervisory jurisdiction over trials in the Superior Court, to award a new trial when manifest injustice has been done even though settled rules of law as established by the decisions of this Court must be set aside in order to do so. The basis of my dissent is my opinion that this record does not present a situation that justifies the exercise of such authority.
Justice is always the goal. Yet experience has demonstrated that we can best approximate the ideal by the observance of orderly procedure.
My apprehension is that counsel, instead of being alert to objeet in apt time as required under our decisions, will deem it prudent to remain silent when an alleged prejudicial argument is beng made, take their chances with the jury then impaneled; and then, after conviction, bring before us the solicitor’s address to the jury or excerpts therefrom for close inspection against an ideal standard in the hope that we will in such case see fit to exercise the general supervisory powers of this Court by awarding a new trial on the basis of an alleged abuse of privilege that could have been fully and effectively corrected if objection had been interposed in apt time.
When the trial judge was considering defendant’s motion to set aside the verdict, the record shows the following remarks :
“Oouet: I’m not going to set it aside; I tried to charge the jury and impress on them that it is their duty to give a man from Texas as fair a trial as a man from North Carolina or another county in the State; and to give a man of means as fair a trial as a man of no means, it’s a question of fact.”
If this can be fairly interpreted as a statement by the trial judge that the defendant was a man of means, the complete answer is that this remark, made after verdict, could have had no effect on the jury’s deliberations.
For the reasons stated, I vote to affirm.
JOHNSON, J., concurs in dissent.