The defendant here relies upon two assignments of error. The first is as to the conduct of the solicitor during the course of cross-examination of defendant with regard to the force of the blow which the defendant admitted he administered on the head of the deceased with a hammer. As to this, the State’s witness, Simmons, had testified as above appears.
The defendant having testified substantially that he did not “hit her hard,” the solicitor, with some violence, struck his hand upon the table and asked the defendant if the blows defendant had stricken were like that.
"We do not think, under the circumstances of this case, that the defendant could have been seriously prejudiced by this act of the solicitor. We are also of the opinion that the incident was not of such a nature as to call for exercise of the discretion which must be accorded to trial judges — to whom is committed the immediate supervision of such matters — in defendant’s protection.
The second assignment of error includes suggested violations of the provisions of C. S., 564, forbidding the judge to give any expression upon the weight of evidence.
There is an exception under this head relating to an incident occurring during the course of the trial. The State’s witness Huneycutt was asked to repeat what the State’s witness Grainger Harris had told him with regard to a threat made by defendant. To this defendant objected and the court admitted the evidence with the statement that it was doing so “purely to corroborate him (Harris) and for no other purpose. If it does not corroborate I will strike it out.” Inasmuch as the evidence was not subsequently stricken out, the defendant contends that it was tantamount to a statement by the judge that it did so corroborate Harris. As to this question we think the judge used the word “corroborate” in a purely formal sense — as classifying the evidence, referring to its function rather than its effect. The conclusion that the judge had thus expressed an opinion on the weight of the evidence is too remote to afford an inference of substantial prejudice to the defendant.
However, we are unable to give entire approval to that portion of the charge noted above relating to deliberation and premeditation; that the jury might “consider an entire absence of provocation” and “the proof that there was no quarrel just before the killing.”
The testimony of the defendant did disclose such a quarrel and an attack upon him by the deceased. Whether the jury should believe this or not is not our affair; it must be held that they understood the English language in its ordinary use and at least knew the difference between evidence and proof — a distinction maintained in both the common and the technical acceptation of these terms. Also since the presence of *543provocation, when it exists, bas a bearing on tbe question of deliberation favorable to defendant, just as its absence bas an unfavorable bearing, tbe form of tbe instruction is open to tbe same objection. It is not taking an impractical view of tbe situation to say tbat tbe jury may bave understood tbe judge to intimate tbat tbe absence of provocation and of any quarrel before tbe killing bad been proved. Sucb an assumption, of course, would be to express an opinion upon tbe evidence. S. v. Kline, 190 N. C., 177, 129 S. E., 417; Bradley v. R. R., 126 N. C., 735, 36 S. E., 181; Pigford v. R. R. 160 N. C., 93, 75 S. E., 860.
In returning tbis case for a retrial it must be understood tbat we regard tbe incident as a casualty wbicb might befall tbe ablest of judges. However, considering tbat tbe crime of wbicb tbe defendant stands convicted draws tbe penalty of death, we are unable to relax tbe standards by wbicb sucb conviction must be bad.
We do not deem it necessary to pass upon other exceptions in tbe record. Tbe error pointed out entitles tbe defendant to a new trial, and it is so ordered.
New trial.
Stacy, C. J., dissents.
WinboRNe, J., took no part in tbe consideration or decision of tbis ease.