S. v. . Cook , 162 N.C. 586 ( 1913 )

It was admitted by the prisoner that he fired the shot which killed the deceased, and there was other evidence on the part of the State tending to establish guilt.

On the part of the prisoner there was evidence tending to show that the killing was in his necessary self-defense; that at the time the fatal shot was fired the deceased and one Frank Pittman, who had already struck prisoner a severe blow with a heavy stick, were advancing on prisoner, both with heavy sticks and pressing him so close that he was unable to get away; that prisoner was running at the time, and, not being able to escape the assault, that he turned and fired back as he ran, two shots, etc. When asked why he shot the second time, prisoner replied, "They were right at me, and I could not get over the fence." The prisoner also testified that at this time Alvin Coley, a brother of deceased, had started to the house, and with an oath said, "I'll get the gun," and was returning with it, pointing towards prisoner. While one of the prisoner's counsel was arguing this phase of the case to the jury, and contending that owing to the advance on him by deceased and Frank Pittman, both with sticks, and Pittman known to the prisoner to be a man of violent character, the prisoner had good and lawful reason for his act, his Honor interrupted counsel, saying, "What difference does it make if Pittman was advancing on him with a stick? That would not give him the right to kill Ben. Coley." This to our minds, was a clear expression of opinion on the part of his Honor as to the weight and sufficiency of an important part of testimony tending to establish his plea of self-defense, and is in violation of our statute regulating jury trial, Revisal, sec. 535, and in which a judge is forbidden, in giving a charge to the petit jury in a civil or criminal case, to express an opinion whether a fact is fully and sufficiently proved, "such matter being the true office and province of the (588) jury." While the statute refers in terms to the charge, it has always been the accepted construction that it applies to any such expression of opinion by the judge in the hearing of the jury at any time during the trial. Pell's Revisal, sec. 535; Park v. Exum, 156 N.C. 228;Withers v. Lane, 144 N.C. 184; S. v. Dick,60 N.C. 440. The learned and usually careful judge was evidently conscious that he had probably and by inadvertence prejudiced the prisoner's case, for he added, "But the court has no right nor has it the inclination to express an opinion about the case"; but the forbidden impression had already been made, and as to the vital portion of prisoner's plea, and on authority, the attempted correction by his Honor must be held inefficient for the purpose. S. v. Dick, supra; S. v. Caveness, 78 N.C. 484.

In S. v. Dick the Court held: "Any remark made by a judge, on the trial of an issue by a jury, from which the jury may infer what his opinion is, as to the sufficiency or insufficiency of the evidence or any part of it pertinent to the issue, is error, and the error is not corrected by his telling the jury that it is their exclusive province to determine on the sufficiency or the insufficiency of evidence and that they are not bound by his opinion in regard thereto."

For the error indicated, the prisoner is entitled to have his cause heard before another jury, and it is so ordered.

New trial.

Cited: S. v. Harris, 166 N.C. 246; Speed v. Perry, 167 N.C. 128; Medlinv. Board of Education, ib., 244; Bank v. McArthur, 168 N.C. 52; Swain v.Clemmons, 172 N.C. 279.