STATE
v.
SIMPSON.
No. 364.
Supreme Court of North Carolina.
April 11, 1951.*570 Harry McMullan, Atty. Gen. and Ralph Moody, Asst. Atty. Gen. and Charles G. Powell, Jr., Member of Staff, Raleigh, for the State.
B. W. Blackwelder and R. Furman James, Concord, for defendant.
STACY, Chief Justice.
The defendant is well advised in abandoning his demurrer to the sufficiency of the evidence to carry the case to the jury. The prosecuting witness was direct and positive in his testimony. Its probative value was for the twelve. State v. Hovis, N.C., 64 S.E.2d 564.
A new trial must be granted, however, because of the impeachment and depreciation by the court of the defendant's evidence and that of his witnesses, Green and Hurlocker. This was done, first, by ordering the defendant and his two witnesses into custody during the trial, which action by the court came to the attention of the jury trying the case, State v. McNeill, 231 N.C. 666, 58 S.E.2d 366; and, secondly, by the manner in which the court's charge was given to the jury. State v. Rhinehart, 209 N.C. 150, 183 S.E. 388.
First. It would be begging the question to say that "it does not appear on the record" the jury had any knowledge of the order of arrest or the actual incarceration of the defendant and his witnesses during the trial. Kelley v. City of Boston, 201 Mass, 86, 87 N.E. 494. The jury was in the courtroom and saw what transpired, some of them at the beginning of the noon recess, and all of them after the court had reconvened for the afternoon session. They are presumed to know what goes on in their presence. The case of State v. McNeill, supra, is controlling on the point.
*571 There is no suggestion of any contumacy on the part of the defendant or his witnesses such as might have justified the court in acting peremptorily, without prejudice to the defendant. State v. Slagle, 182 N.C. 894, 109 S.E. 844; Seawell v. Carolina Central R. Co., 132 N.C. 856, 44 S.E. 610; 53 Am.Jur. 82.
Second. The authorities are to the effect that no judge at any time during the trial of a cause is permitted to cast doubt upon the testimony of a witness or to impeach his credibility. G.S. § 1-180, as rewritten, Chap. 107, S.L.1949; State v. Cantrell, 230 N.C. 46, 51 S.E.2d 887; State v. Owenby, 226 N.C. 521, 39 S.E.2d 378; State v. Woolard, 227 N.C. 645, 44 S.E.2d 29; State v. Auston, 223 N.C. 203, 25 S.E.2d 613.
The judge may indicate to the jury what impression the evidence has made on his mind, or what deductions he thinks should be drawn 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 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. Speed v. Perry, 167 N.C. 122, 83 S.E. 176; State v. Dancy, 78 N.C. 437; State v. Jones, 67 N.C. 285.
It can make no difference in what way or manner or when the opinion of the judge is conveyed to the jury, whether directly or indirectly, by comment on the testimony of a witness, by arraying the evidence unequally in the charge, by imbalancing the contentions of the parties, by the choice of language in stating the contentions, or by the general tone and tenor of the trial. The statute forbids any 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. Withers v. Lane, 144 N.C. 184, 56 S.E. 855. "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 the 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". Walker, J., in State v. Ownby, 146 N.C. 677, 61 S.E. 630.
It is true, where the court misquotes the evidence, e.g., here, "the defendant went on the stand and never denied that he was driving the car", when the fact is he did deny it, the misquotation or inadvertence should be called to his attention at some appropriate time before the case is given to the jury, so as to afford an opportunity of correction. Where this is done and no correction is made, the party is entitled to his exception on appeal. Harris v. Draper, 233 N.C. 221, 63 S.E.2d 209.
We think the court inadvertently conveyed to the jury an expression of opinion upon the weight of the defendant's evidence in violation of the provisions of G.S. § 1-180, as rewritten, Chap. 107, S.L.1949. The error may have been one of those casualties which, now and then, befalls the most circumspect in the trial of causes on the circuit. State v. Kline, 190 N.C. 177, 129 S.E. 417; State v. Griggs, 197 N.C. 352, 148 S.E. 547; State v. Stiwinter, 211 N.C. 278, 189 S.E. 868; State v. Buchanan, 216 N.C. 34, 3 S.E.2d 273; State v. Floyd, 220 N.C. 530, 17 S.E.2d 658; In re Will of Lomax, 225 N.C. 31, 33 S.E.2d 63. Even so, the question is presented on appeal, and we must "Hew to the line and let the chips fall wherever they may". Barnes v. Teer, 219 N.C. 823, 15 S.E.2d 379, 380; State v. Hovis, N.Car., 64 S.E.2d 564.
The defendant is entitled to a new trial. It is so ordered.
New trial.