Swain v. Clemmons, 172 N.C. 277 (1916)

Oct. 18, 1916 · Supreme Court of North Carolina

172 N.C. 277

MARY IDA SWAIN et al. v. DAVIS CLEMMONS et als.

(Filed 18 October, 1916.)

Courts — Evidence—Intimation of Opinion — Statutes.

Where it is material in a controversy over lands to establish the place where a certain swamp joins a certain named run, the evidence being conflicting, and a surveyor, theretofore appointed, had testified and his map put in evidence, tending to sustain the contention of one of the parties, it is reversible error for the trial judge to instruct the jury that they must be guided in their judgment, not from the map, but from the testimony of the surveyor and other witnesses, such being an intimation of opinion by the court upon the weight of the evidence forbidden by the statute. Revisal, sec. 535.

Oivtx actioN to recover laud, tried before Rountree, J., and a jury, at October Special' Term, 1915, of Beunswick.

On the issue as to title there was verdict for defendant. Judgment, and plaintiffs excepted and appealed, assigning for error chiefly that the court in its charge expressed an opinion on the value of certain testimony relevant to the issue.

G. Ed. Taylor for plaintiff.

Cranmer & Davis for defendant.

Hoke, J.

On the trial of the issue it became a relevant and material circumstance whether Middle Swamp Eun joined with Lockwood’s Folly Eun above or below an island (the land' in dispute).

Plaintiff offered evidence tending to show that the junction took place before it reached the island, and the map of the surveyor, made by order of court and in evidence, showed this to be the fact.

The defendants’ evidence tended to show that Middle Swamp Eun joined Lockwood’s Folly Eun below the island, and this was a very much disputed question between the parties.

His Honor, after referring very fully to the respective positions, among other things, charged the jury as follows: “Now, I was about

to overlook tbe fact tbat some of tbe testimony, wbieb yon ought to be satisfied with, sbows tbat tbe Middle Swamp’s Eun really doesn’t run into Lockwood’s Folly until it gets around tbe island. They say tbat is so, and they say tbat tbe map of tbe surveyor is not necessarily correct. You must be guided in your judgment, not from tbe map, but from what tbe surveyor says and what all tbe other witnesses say.” Plaintiff excepted.

After giving tbe matter full consideration, and in view of tbe fact tbat this was on a phase of tbe evidence which bad become very material to tbe issue, tbe Court is of opinion tbat tbe portion of tbe charge objected to is in violation of tbe statute, Eevisal, sec. 535, tbat “No judge, in giving bis charge to tbe petit jury, either in a civil or criminal action, shall give an opinion whether a fact is fully or sufficiently proved, such matter being tbe true office and province of the jury.”

Even if tbe comment as to tbe parol testimony of tbe witnesses should be held an inadvertence, sufficiently corrected by what immediately follows and tending to show tbat tbe judge was only giving tbe defendant’s estimate of tbe testimony and not bis own, tbe closing portion of tbe charge as to tbe map was clearly an adverse intimation on tbe weight tbe jury should attach to it. The map was in evidence as an official survey by order of court in tbe cause, and it was for the jury to determine what effect they would give it, and uninfluenced by any intimation from tbe court. A reference to our decisions on tbe subject will show tbat this Court has been very insistent on tbe requirement of tbe statute, and tbat an expression of opinion on tbe part of tbe trial judge is forbidden not only in tbe charge, but at any time during the trial, in tbe hearing of tbe jury. S. v. Cook, 162 N. C., pp. 586, 588; Park v. Exum, 156 N. C., 228; Withers v. Lane, 144 N. C., 184.

We think tbat tbe portion of tbe charge objected to must.be held for reversible error, and tbat there should be a new trial of the cause.

New trial.