State v. Owenby, 226 N.C. 521 (1946)

Sept. 18, 1946 · Supreme Court of North Carolina

226 N.C. 521

STATE v. GRADY OWENBY, JR.

(Filed 18 September, 1946.)

1. Indictment § 9—

In drawing an indictment it is always better to adhere to the established practice.

2. Criminal Law § 50d — New trial awarded for remarks of comrt impeaching credibility of witness and intimating that fact had not been established.

In this prosecution for carnal knowledge of a female between the ages of twelve and sixteen,, a witness for the defendant testified to the effect that prosecutrix had a bad reputation and that he himself had had carnal knowledge of her before the time specified in the indictment. The trial court, in the presence of the jury, made derogatory remarks concerning the witness, and stated that it appeared that the prosecuting witness was not a delinquent. Held: The remarks, though inadvertently made in the presence of the jury, impinge the statutory prohibition against the court at any time during the course of the trial casting doubt upon the testimony of a witness or impeaching his credibility, and the prohibition against the court at any time during the progress of the trial intimating whether a fact has been fully or sufficiently established, G. S., 1-180, and defendant is entitled to a new trial.

Appeal by defendant from Sink, J., at April Term, 1946, of BuNCOMBE.

Criminal prosecution upon indictment charging that on 15 September, 1945, the defendant did “wilfully and feloniously abuse and have carnal knowledge with one Dorothy Medford, she being over twelve years and under sixteen years of age and having never heretofore had sexual relation with any other person,” contrary to the statute in such cases made and provided, etc.

The prosecuting witness testified that she was 12 years old on 15 September, 1945; that the defendant carnally knew her on that date, and further: “No, I did not have intercourse with any man except the defendant.”

Clarence Cody, a witness for the defendant, testified that the prosecuting witness ha'd a bad reputation; that she had had several dates with him in bis own bouse, wben bis wife was away; and tbat be bad advised ber sbe was too young and tbat sbe should go borne, etc.

Following tbe evidence of tbis witness in tbe late afternoon on Monday after tbe jury bad been given tbe case, tbe court ordered tbe witness beld for grand-jury action on a charge of contributing to tbe delinquency of a minor.

On Tuesday morning, tbe jury was in tbe box at tbe opening of court to request further instructions on tbe defendant’s alibi. In tbe presence of tbe jury, tbe court reviewed what bad taben place tbe day before, “made considerable comment derogatory of Cody,” and announced tbat as “it appears tbat tbe minor involved in tbis case is not a delinquent,” tbe bill heretofore sent to tbe grand jury in tbis matter will be recalled and tbe named defendant Cody discharged. Exception by tbe defendant.

Verdict: Guilty as charged in tbe bill of indictment.

Judgment: Imprisonment in tbe State’s Prison for not less than one nor more than two years.

Defendant appeals, assigning errors.

Attorney-General McMullan and Assistant Attorneys-General Bruton, Rhodes, and Moody for the State.

James B. Rector for defendant.

Stacy, C. J.

Tbe sufficiency of tbe indictment is challenged, both by motion to quash tbe bill and by motion in arrest of judgment. But as a new trial is to be bad for reasons hereafter stated, tbe solicitor can easily eliminate any objection by sending a new bill to tbe grand jury. It is always better in criminal matters to adhere to the established practice and to follow tbe beaten path. S. v. Johnson, ante, 266.

Tbe disparagement of tbe defendant’s witness, Cody, and tbe expression of opinion tbat tbe minor in tbe case was not a delinquent, though inadvertently made in tbe presence of tbe jury, would seem to entitle tbe defendant to another bearing. G. S., 1-180; S. v. Auston, 223 N. C., 203, 25 S. E. (2d), 613; S. v. Wyont, 218 N. C., 505, 11 S. E. (2d), 473.

No judge at any time during tbe trial of a cause is permitted to cast doubt upon tbe testimony of a witness or to impeach bis credibility. S. v. Winckler, 210 N. C., 556, 187 S. E., 792; S. v. Rhinehart, 209 N. C., 150, 183 S. E., 388; Morris v. Kramer, 182 N. C., 87, 108 S. E., 381; S. v. Rogers, 173 N. C., 755, 91 S. E., 854; Chance v. Ice Co., 166 N. C., 495, 82 S. E., 845; Ray v. Patterson, 165 N. C., 512, 81 S. E., 773. “Tbe slightest intimation from a judge as to tbe strength of tbe evidence or as to tbe credibility of a witness will always have great weight with tbe jury, and, therefore, we must be careful to see tbat neither party is unduly prejudiced by an expression from tbe bench which is likely to prevent a fair and impartial trial” — Walker, J., in S. v. Ownby, 146 N. C., 677, 61 S. E., 630.

Nor is it permissible for the judge in charging the jury or at any time during the trial, to intimate whether a material fact has been fully or sufficiently established, it being the true office and province of the jury to weigh the testimony and to decide upon its adequacy to prove any issuable fact. It is the duty of the judge, under the provisions of the statute, to state in a plain and correct manner the evidence given in the case and to declare and explain the law arising thereon, without expressing any opinion upon the facts. Gr. S., 1-180; S. v. Hart, 186 N. C., 582, 120 S. E., 345. It can make no difference in what way or when the opinion of the judge is conveyed to the jury, whether directly or indirectly, or by the general tone and tenor of the trial. The statute forbids an 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. “Every suitor is entitled by the law to have his cause considered with the ‘cold neutrality of the impartial judge’ and the equally unbiased mind of a properly instructed jury.” Withers v. Lane, 144 N. C., p. 192, 56 S. E., 855.

For, the errors as indicated, the defendant is entitled to a new trial. It is so ordered.

New trial.