The evidence for the State was in many aspects very improbable, and the defendant’s counsel was justified in arguing to the jury that they should infer that the prosecution was based upon some bad motive. Considering that both the prosecuting witness and the defendant were young, and that the latter was engaged to Bettie Gilliam, counsel might reasonably argue that jealousy was the motive, and contend that the jury should draw that inference. The presiding judge was within his province when he told the jury that there was no evidence to that effect. But he erred when he told the jury that they should disregard the argument of counsel because no one but the counsel had testified to this state of facts, that he was not sworn, and that the jury should not pay any attention to anything that he had said about this.
It is the .province of the jury to draw inferences from the facts in evidence and for counsel to argue what inferences they should draw. The court can tell the jury that there is no evidence on any point, but it is not in his province to tell the jury that they should not accept or pay any attention to any inference which the counsel has urged them to draw from the facts in evidence. This is to express an opinion, which is forbidden by statute. It was a very clear intimation to the jury that they should find the defendant guilty.
To illustrate our meaning: A morning paper has this paragraph : “A man in Sioux City placed in his stove, among other kindling, a stick of dynamite. The silver-plated handles cost $10.” There was no statement of a catastrophe or a funeral, but an inference could be drawn. In this case the evidence, exclusive of the denial of the defendant, was that the robbery took place along a public road about 300 yards from the preaching to which people were going, in 60 yards of another man, near to two houses, and in the vicinity of several others; that both the prosecutor and the defendant went immediately to the preaching, where the latter showed himself and sat with and mingled with the crowd of people; that no complaint was made for some days and no outcry at the time; both parties were under 21, and the defendant was engaged to be married to a *255girl whom the prosecutor knew. Upon these facts the distinguished counsel for the defendant was arguing that the evidence of the prosecution was improbable, and that'there was a bad motive, and intimated that it might be jealousy. To tell the jury to disregard and “pay no attention” to this argument of the defense was to deprive him practically of the right to be heard by counsel, and was a strong intimation by the court that they ought not to believe such defense. In difficult cases. Vidocq, the famous French detective, always told his agents, “Cherchez la femme" — that is, “Look for the woman.” The defendant’s counsel was asking the jury to apply this principle, and was fully within his rights in doing so.
Besides this, the remark of the court that counsel had “testified when he was not sworn” was a reflection upon the counsel. It was doubtless not so intended by his Honor, but under the supervisory authority given this Court “over the proceedings of the inferior courts” (Const., Art. IV, sec. 8) we must express our disapprobation of the words used. The relation between courts and counsel should always be courteous. Should counsel forget' their duty in this respect, the presiding judge has authority to enforce respect by proceedings in contempt. Judges should therefore be careful 'to observe the respect .which is due from them to counsel, for when this is not done there is not only no remedy except by appeal to this Court, but the cause which the counsel is advocating may be seriously damaged in the estimation of the jury, as was very probably the case in this instance.
It was incorrect to state that counsel had “testified,” for he had not made, according to the record as sent up by the judge, any statement of fact, but had distinctly urged jealousy upon the jury as an inference from the evidence and the attendant circumstances merely as he had a right to do. .Even- if counsel had stated this as a fact, he certainly had not “testified” to it, because he had not been sworn as a witness in the cause,- as the jury well knew.
This Court has always enforced the rule that witnesses must not be treated with indignity or discourtesy by court or counsel, and counsel certainly are entitled to be treated with equal consid*256eration. They are not only entitled to this on their own account, but because derogatory remarks from tbe Bench towards counsel are calculated to injuriously affect the client and the cause which the counsel represents. From the evidence sent up in this case it is reasonable to suppose that the remark of the judge to the counsel and his direction to the jury not to “pay any attention to anything that he has said about this,” had a prejudicial effect upon the verdict. It is reasonable also to presume that the judge did not so intend, nor’thought that he was reflecting upon counsel. But the result would be the same.
The defendant further excepts because a sentence of nine years and six months on the county roads upon a conviction on this state of facts was “cruel and unusual punishment.” It is contended for the State that this being a felony, the punishment for which is fixed by statute at imprisonment “in the county jail or State’s Prison not less than four months nor more than ten years,” that this is a power conferred by legislative authority upon the trial court, and that this Court cannot hold unlawful a punishment which the statute has authorized. In S. v. Rippy, 127 N. C., 517, it is said: “The-quantum of punishment, whenever mentioned in The Code, is either ‘in-the discretion of the court’ or ‘not exceeding.’ ” As to punishments that are in the discretion of the court, it is said in S. v. Driver, 78 N. C., at p. 429: “There is a limit to the power of the judge to punish, even when it is expressly left to his discretion. "What the precise limit is cannot be prescribed. The Constitution does not fix it, precedents do not fix it, and we cannot fix it, and it ought not to be fixed. It' ought to be left to the judge who inflicts it under the circumstances of each case, and it ought not to he abused, and had not been abused (grossly) in a century, and probably will not be in a century to come; and it ought not to be interfered with except in a case like the present, where the abuse is palpable.” This was said in a case where the sentence was for an assault and battery, as to which the punishment is “in the discretion of the court.”
Whether this Court could hold as a matter of law that the judge has exceeded his power in imposing a sentence within the limit prescribed by the statute is a different matter. As we have *257given a new trial for the errors above stated, we will not now discuss or consider tbis proposition, as to which, it is unnecessary that we intimate any opinion.
While we will not hold, therefore, that as a matter of law the punishment was in excess of the powers of the judge, we are frank to say that it does not commend itself to us as being at all commensurate with the offense, even if the defendant was properly found guilty upon the facts. There were neither aggravation nor circumstances which tended to show that the punishment should approximate the highest limit allowed by the law in such cases. It was evidently intended that where there was no aggravation that the punishment should approximate the lower limit allowed, and only when aggravation was shown should the highest degree of punishment authorized by the statute be inflicted.
For the errors above stated the judgment must be set aside, and we order a
New trial.