Opinion
(Filed 22 January, 1936.)
1. Criminal Law I g — Instruction in this case held erroneous as containing expression of opinion by the court.
The instruction of the trial court to the jury in this case is held for error as conveying an expression of opinion by the court in violation of C. S., 564, in that the instruction paramounted the character and disinterestedness of the State's witnesses and singled out for special consideration and emphasis testimony of some of the State's witnesses, and at the same time called attention to the unreasonableness of the defendant's testimony, its want of adminiculation, the improbability, of defendant's evidence, and the proneness of parties and interested witnesses to swear falsely.
2. Same — Court may not convey expression of opinion to jury as to weight or credibility of the evidence, directly or indirectly.
Under C. S., 564, it is the duty of the trial court to state in his charge in plain and correct manner the evidence given in the case, and declare and explain the law arising thereon, and the court may not express an opinion as to the facts, the weight of the evidence, or the credibility of the witnesses, directly or indirectly, by manner, undue emphasis, arrangement and form of presentation of the evidence, or by the general tenor and tone of the trial.
3. Criminal Law G j —
The instruction of the court in regard to the testimony of defendant in his own behalf held not in the usually approved form.
4. Perjury B b —
In prosecutions for perjury it is required that the falsity of the oath be established by two witnesses, or by one witness and adminicular circumstances sufficient to turn the scales against the defendant's oath.
DEVIN, J., took no part in the consideration of decision of this case.
APPEAL by defendant from Rousseau, J., at May Term, 1935, of JACKSON.
Attorney-General Seawell and Assistant Attorneys-General Aiken and Bruton for the State.
Monteith Nicholson and Moody Moody for defendant.
CLARKSON, J., dissenting.
Criminal prosecution, tried upon indictment in which it is alleged that the defendant did, on 19 February, 1934, feloniously commit perjury upon the trial of an action in a court of a justice of the peace of Jackson County, wherein the State of North Carolina was plaintiff and Alley Turpin, Warfield Turpin, and Dock Turpin were defendants, by falsely asserting on oath that the said Turpins did forcibly and fraudulently kidnap, torture, and mistreat the said Frank T. Rhinehart, etc. The bill conforms to the provisions of C. S., 4615.
There was evidence by the State in support of the indictment, and by the defendant in denial. The witnesses clashed sharply. It is in evidence that the charge of kidnapping grew out of an old feud between the Rhineharts and the Turpins. There is likewise evidence to the contrary. The proceeding was dismissed by the justice of the peace for want of probable cause.
The defendant excepted to the general tone of the court's charge to the jury — its strong summation of the State's case — to the singling out of the testimony of some of the witnesses for special consideration, and particularly to the following portions:
1. "The State contends . . . that you would have to dispute (disbelieve) all the evidence of these men who are disinterested, men like Sheriff Mason, ex-Sheriff Maney, the mayor of Waynesville, Deputy Sheriff Welch, and various other witnesses who have no interest in this matter, . . . that the prosecuting witnesses are interested, and that may have an influence on them to swear falsely and tell a lie while on the stand, . . . but that these other witnesses would not come here for the Turpins or anyone else and testify that they saw Dock, Warfield, and Alley Turpin at their home if it had not been true." Exception.
2. "The State contends that if he (Rhinehart) had been hurt like he said, the doctor they called would have been here to show those injuries, and that he wasn't here." Exception.
3. "The State contends you ought . . . not to believe the defendant's evidence for the reason it is unreasonable, . . . that it is all imagination on his part." Exception.
4. "The court instructs you, furthermore, that the defendant Rhinehart is an interested party, . . . it will be your duty under the circumstances to scrutinize his evidence and weigh his evidence cautiously, but after you do scrutinize his testimony, if you believe he has told the truth, then you have the same right to believe him as you would any other witness who went on the stand." Exception.
Verdict: "Guilty as charged in the bill of indictment."
Judgment: Imprisonment in the State's Prison for a period of not less than 18 nor more than 30 months.
Defendant appeals, assigning errors.
It would seem that by paramounting the character and disinterestedness of the State's witnesses, and at the same time calling attention to the unreasonableness of the defendant's testimony, its want of adminiculation, and the proneness of parties and interested witnesses to swear falsely, the trial court inadvertently conveyed to the jury an expression of opinion prohibited by C. S., 564. S. v. Hart, 186 N.C. 582, 120 S.E. 345. The error is just one of those casualties which, now and then, befalls the most circumspect in the trial of causes on the circuit. S. v. Griggs, 197 N.C. 352, 148 S.E. 547; S. v. Kline, 190 N.C. 177, 129 S.E. 417. Indeed, the case is before us on defendant's statement, the same having become the statement of case on appeal by operation of law. S. v. Ray, 206 N.C. 736, 175 S.E. 109.
It is provided by the statute, however, that no judge in giving a charge to the jury, either in a civil or a criminal action, shall give an opinion whether a fact is fully or sufficiently established, that being the true office and province of the jury; but he shall state in a plain and correct manner the evidence given in the case and declare and explain the law arising thereon.
This statute has been interpreted by us to mean that no judge, in charging the jury or at any time during the trial, shall intimate whether a fact is fully or sufficiently proved, it being the true office and province of the jury to weigh the testimony and to decide upon its adequacy to establish 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. Morris v. Kramer, 182 N.C. 87, 108 S.E. 381; S. v. Cook, 162 N.C. 586, 77 S.E. 759; Park v. Exum, 156 N.C. p. 231, 72 S.E. 309. "There must be no indication of the judge's opinion upon the facts, to the hurt of either party, either directly or indirectly, by words or conduct." Bank v. McArthur, 168 N.C. p. 52, 84 S.E. 39. And in S. v. Ownby, 146 N.C. p. 678, 61 S.E. 630, it was said: "The slightest intimation from a judge was to the strength of the evidence, or as to the credibility of a witness, will always have great weight with a jury and, therefore, we must be careful to see that neither party is unduly prejudiced by any expression from the bench which is likely to prevent a fair and impartial trial."
The judge may indicate to a jury what impression the testimony or evidence has made on his mind, or what deductions he thinks should be made therefrom, without expressly stating his opinion in so many words. This may be done by his manner or peculiar emphasis or by his so arraying and presenting the evidence as to give to one of the parties and undue advantage over the other; or, again, the same result may follow the use of language, or form of expression calculated to impair the credit which might otherwise and under normal conditions be given by the jury to the testimony of one of the parties. Speed v. Perry, 167 N.C. 122, 83 S.E. 176; S. v. Dancy, 78 N.C. 437. 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's and the equally unbiased mind of a properly instructed jury." Withers v. Lane, 144 N.C. p. 192, 56 S.E. 855.
It is also suggested as objectionable that the testimony of some of the State's witnesses was singled out for special consideration and emphasis, while attention was directed to the improbability of defendant's evidence, and the jury cautioned to scrutinize the latter, "but after you do scrutinize his testimony, if you believe he has told the truth, you have the same right to believe him as you would any other witness who went on the stand." It would seem that the objection is well taken in the light of what was said in the following cases: S. v. Horne, 171 N.C. 787, 88 S.E. 433; S. v. Rogers, 93 N.C. 523; S. v. Weathers, 98 N.C. 685, 4 S.E. 512; S. v. Rollins, 113 N.C. 722, 18 S.E. 394; S. v. Bailey, 60 N.C. 141; Starling v. Cotton Mills, 171 N.C. 222, 88 S.E. 242; Bowman v. Trust Co., 170 N.C. 301, 87 S.E. 46; Withers v. Lane, 144 N.C. 184, 56 S.E. 855; Cogdell v. R. R., 129 N.C. 398, 40 S.E. 202.
Nor is the caution to scrutinize the defendant's testimony in the usually approved form. The rule was stated in S. v. Lee, 121 N.C. 544, 28 S.E. 552, as follows: "The law regards with suspicion the testimony of near relations, interested parties, and those testifying in their own behalf. It is the province of the jury to consider and decide the weight due to such testimony, and, as a general rule in deciding on the credit of witnesses on both sides, they ought to look to the deportment of the witnesses, their capacity and opportunity to testify in relation to the transaction, and the relation in which the witness stands to the party; that such evidence must be taken with some degree of allowance and should not be given the weight of the evidence of disinterested witnesses, but the rule does not reject or necessarily impeach it; and if, from the testimony, or from it and the other facts and circumstances in the case, the jury believe that such witnesses have sworn the truth, then they are entitled to as full credit as any other witness." S. v. Deal, 207 N.C. 448, 177 S.E. 332; S. v. Beal, 199 N.C. 278, 154 S.E. 604; S. v. Ray, 195 N.C. 619, 143 S.E. 143; S. v. Beavers, 188 N.C. 595, 125 S.E. 258; S. v. Wilcox, 206 N.C. 691, 175 S.E. 122.
In prosecutions for perjury, it is required that the falsity of the oath be established by two witnesses, or by one witness and adminicular circumstances sufficient to turn the scales against the defendant's oath. S. v. Hawkins, 115 N.C. 712, 20 S.E. 623; S. v. Peters, 107 N.C. 876, 12 S.E. 74; S. v. Sinodis, 205 N.C. 602, 172 S.E. 190.
New trial.
DEVIN, J., took no part in the consideration or decision of this case.