State v. Davis, 251 N.C. 93 (1959)

Oct. 21, 1959 · Supreme Court of North Carolina

251 N.C. 93

STATE v. JOHN M. DAVIS, JR.

(Filed 21 October, 1959.)

1. Criminal Daw § 94—

Questions asked a witness by tbe court held merely of a clarifying nature and not to constitute an expression of opinion by the court on the weight or credibility of the testimony. G.S. 1-180.

Higgins, J., not sitting.

Appeal by defendant from Morris, J., June Term, 1959, of Wayne.

Defendant was tried and convicted in the Recorder’s Court of Wayne County upon a warrant charging that he operated a motor vehicle upon the public highways within that county on 18 May, 1958, while under the influence of intoxicating liquor. He appealed to Superior Court and upon a plea of not guilty therein was tried upon said warrant de novo. A jury was duly selected and empanelled. Evidence was offered both by the State and defendant. The jury returned a verdict of guilty.

From judgment imposing a prison sentence defendant appealed and •assigned error.

Attorney General Seawell and Assistant Attorney General Love for the State.

Edmundson and Edmundson for defendant, appellant.

PER Ctjeiam.

The sole assignment of error relates to the interrogation of a defense witness by the court. Defendant contends that it amounted to an “expression of ... opinion on the weight and credibility of the testimony” of the witness. G.S. 1-180. A careful consideration of the challenged questions and the responses thereto leads to the definite conclusion that questions asked by the court were merely of a clarifying nature. State v. Stevens, 244 N.C. 40, 44, 92 S.E. 2d 409. To be entitled to a new trial defendant must show prejudice. State v. Creech, 229 N.C. 662, 672, 51 S.E. 2d 348. No prejudicial error has been shown.

No error.

Higgins, J., not sitting.