State v. Bertrand

Higgins, J.

During the progress of trial, the presiding judge asked some of the State’s witnesses questions which the defendant contends may have given the jury the impression the judge was attempting to bolster the State’s case. No doubt the experienced and learned judge intended only to clarify rather than to emphasize the State’s evidence. The court’s questions, standing alone, would not be of disturbing importance. However, the effect of the court’s announcement at the close of the evidence that it would give the jury peremptory instructions may not have been removed by the court’s failure to give them, The announcement alone was calculated to impress the jury with the idea either that the evidence failed to make out a case or that it did establish an impregnable one. By a peremptory instruction, the court tells the jury how to decide the case. It would be unsafe to assume that at least some of the jurors failed to grasp the purport of the court’s statement, or that its effect was lost on them. Added thereto the court’s inquiry about the verdict after 15 minutes deliberation may have been taken as a suggestion that they had wasted enough time on the case. It is impossible to tell, of course, what may be the determining factors in a jury’s verdict. However, there is nothing in this record from which the jury might reasonably conclude the trial judge thought the defendant should be acquitted. We fear the court, by the matters herein discussed, inadvertently left an impression to the contrary. The probable effect on the jury and not the motive of the judge determines whether another trial is required. State v. Newton, 249 N.C. 145, 105 S.E. 2d 437; State v. Taylor, 243 N.C. 688, 91 S.E. 924; State v. Love, 229 N.C. 99, 47 S.E. 2d 712; State v. Ownby, 146 N.C. 677, 61 S.E. 630.

The reasons here assigned make it necessary that the case be submitted to another jury.

New Trial.

Pakker, J., dissents.