State v. Hubert, 259 N.C. 140 (1963)

March 20, 1963 · Supreme Court of North Carolina

259 N.C. 140

STATE v. BOBBY HUBERT.

(Filed 20 March 1963.)

Constitutional Baw § SI—

The act of the court in recapitulating the testimony of a, witness which the jury could not hear, held prejudicial on authority of 8. v. Payton, 255 N.C. 420.

Appeal by defendant from Burgwyn, Emergency Judge, Regular October 1, 1962 Schedule B Criminal Term of MECKLENBURG.

This is a criminal action in which .the defendant was tried on a bill of indictment charging him with armed robbery of one Ernest McCoy, Jr.

After the State’s witness McCoy had testified for sometime, a juror spoke up and said: “Mr. Solicitor, we can’t hear a word he says, see if you can clarify his speech, we can’t hear a word he says.” The court then said: “I was afraid of that.” Whereupon, the court proceeded to summarize the testimony the witness had given up to that time, after which the Solicitor continued his direct examination of the witness.

After additional evidence had been introduced by the State and the defendant, the court charged the jury and the jury returned a verdict of guilty of armed robbery.

From the judgment imposed the defendant appeals, assigning error.

Attorney General Bruton, Asst. Attorney General Harry W. Mc-Galliard for the State.

John H. Cutter for defendant.

Per Curiam.

Tbe defendant 'assigns as error the action of the court in summarizing for the jury the testimony the witness bad given instead of leaving it to the Solicitor to re-question the witness.

In view of our recent decision in the case of S. v. Payton, 255 N.C. 420, 121 S.E. 2d 608, we hold that this assignment of error is well taken and should be upheld.

Other assignments of error need not be considered since they may not recur on another trial.

The defendant is entitled to a new trial and it is so ordered.

New trial.