Greene v. Newsome, 184 N.C. 77 (1922)

Sept. 20, 1922 · Supreme Court of North Carolina

184 N.C. 77

C. GREENE v. J. C. NEWSOME et al.

(Filed 20 September, 1922.)

Appeal and Error — Courts—Expression of Opinion — Statutes.

Where the trial judge has questioned a witness as to the absence of the defendants from court, where their deed was being attacked for fraud, his remark that their absence was a circumstance that a fraud had been committed is an expression of opinion, forbidden by C. S., 564, and constitutes reversible error.

Appeal by defendants from Allen, J., at April Term, 1922, of HERTFORD.

Tbe first issue and tbe answer thereto are as follows:

“1. Was tbe conveyance of tbe bouse and lot in Ahoskie, described in tbe complaint, from J. C. Newsome to Tbomas Newsome made witb tbe intent and purpose on tbe part of J. C. Newsome to binder, delay, or defraud bis creditors, or any of them? Answer: ‘Yes.’”

Judgment for tbe plaintiff. Appeal by tbe defendants.

W. D. Boone for plaintiff.

B. Brown Shepherd and Bridger & Bure for appellants.

Adasis, J.

Tbe action was prosecuted for tbe purpose of canceling a deed, for certain property, alleged to bave been executed by tbe defendant J. 0. Newsome in fraud of bis creditors. Only one exception need be considered. Tbe record shows that during tbe cross-examination of a witness for tbe plaintiff tbe following incident occúrred: “By tbe court: Do you know where J. C. Newsome and Tom Newsome are, and also why they are not here in court to defend this action, as they should be? Their absence is a circumstance that a fraud has been committed. A. I haven’t seen either J. 0. Newsome or Tom here today.” To this remark of bis Honor tbe defendants in apt time excepted.

This Court has repeatedly held that a judge presiding should not at any time during tbe trial either express an opinion as to tbe weight of tbe evidence or make any remark from which tbe jury may reasonably draw an inference as to bis opinion of tbe facts. His Honor, no doubt, in an inadvertent moment, and evidently without intending to do so, overlooked tbe decisions of tbe Court and tbe purpose of tbe statute. Tbe jury may naturally bave adopted bis Honor’s intimation as conclusive on tbe question of fraud.

We think tbe defendants are entitled to a new trial. C. S., 564; Morris v. Kramer, 182 N. C., 89; S. v. Cools, 162 N. C., 586.

New trial.