State v. . Smith , 75 N.C. 306 ( 1876 )

It is necessary to notice only one of the defendant's exceptions, as upon that he is entitled to a new trial. The solicitor, prosecuting in behalf of the State, in addressing the jury, was allowed by the court to use the following language: "The defendant was such a scoundrel that he was compelled to move his trial from Jones County to a county where he was not known." And again: "The bold, brazen-faced rascal had the impudence to write me a note yesterday, begging me not to prosecute him, and threatening me that if I did he would get the Legislature to impeach me."

The purpose and natural effect of such language was to create a prejudice against the defendant, not arising out of any legal evidence before them; for the jury were precluded from inquiry into the causes or motives for removing the trial, and even from the knowledge whether the trial was moved by the State or the defendant. So in respect of the letter, alleged to have been received from the defendant, and the epithets predicated upon it, it was not in evidence, and could not be, yet its alleged contents were allowed to go to the jury with all the force and effect of competent testimony. Such a letter constituted a new and distinct offense, and was the proper subject of another indictment and prosecution. These charges and invectives were not only allowed to go to the jury, but were unexplained and uncorrected by his Honor in his charge to the jury. In Dennis v. Haywood, 63 N.C. 53, the course here pursued by the solicitor is strongly reprobated. "Suppose," said the Court, "a defendant is to be tried for his life, and to escape unreasonable prejudices in one county he removes his trial to another, the fact that he does so may be used to excite prejudice that he is endeavoring to escape justice, and thus he would escape the prejudices of one (308) community to find them intensified in another. Would the court allow the fact to be given in evidence or commented on by counsel? Certainly not." So in Jenkins v. Ore Co., 65 N.C. 563, it is said: "Where the counsel grossly abuses his privilege to the manifest prejudice of the opposite party, it is the duty of the judge to stop him there and then. If he fails to do so, and the impropriety is gross, it is good ground for a new trial." And in S. v. Williams, 65 N.C. 505, a new trial was granted in a case where language less harsh and violent was allowed by the court; and it was there said that it was the duty of the court to interpose for the protection of witnesses and parties, especially in criminal cases where the State is prosecuting one of its citizens. The defendant was arraigned at the bar of the court mute and helpless, without raising an unseemly controversy with the solicitor. The court is his constituted shield against all vituperation and abuse, and more especially when it is predicated upon alleged facts not in evidence, or admissible in evidence. There is

PER CURIAM. Error.

Cited: Coble v. Coble, 79 N.C. 592; S. v. Tyson, 133 N.C. 697, 702.

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