State v. Whitley , 22 N.C. App. 666 ( 1974 )

HEDRICK, Judge.

At the outset we note that the evidence, when taken in the light most favorable to the State, was sufficient to withstand defendant’s motions for nonsuit.

Defendant asserts by his assignment of error number eleven that the trial judge committed prejudicial error in his charge to the jury by expressing an opinion in violation of G.S. 1-180. The specific portion of the charge to which this assignment of error is directed reads as follows:

“(Indeed, I have no opinion as to whether you should find the defendant either guilty or not guilty of the three things I told you, one of which you would have to find him guilty of, or whether you should find him not guilty.)” (Emphasis added.)

We agree with defendant’s contention.

The trial judge occupies an exalted position and the jurors entertain a deep respect for his opinion. State v. Belk, 268 N.C. 320, 150 S.E. 2d 481 (1966). “As a consequence [of this exalted position], the judge prejudices a party or his cause in the minds of the trial jurors whenever he violates the statute by expressing an adverse opinion on the facts. When this occurs, it is virtually impossible for the judge to remove the prejudicial impression from the minds of the trial jurors . ... ” State v. Canipe, 240 N.C. 60, 81 S.E. 2d 173 (1954).

The trial judge’s comment in the instant case that the jury would have to find the defendant guilty of one of the three offenses which he had previously discussed is prejudicial error and is not cured, as suggested in the State’s brief, by construing the charge contextually as a whole. For such error, the defendant must be afforded a new trial.

The defendant brings forth and argues several other assignments of error which we will not discuss as they are not likely to recur on a retrial of this case.

New trial.

Judges Campbell and Parker concur.