Spence v. . Baxter

Ashe, J. (after stating the facts). We are unable 'to see how the defendants could have been prejudiced by what occurred on the trial. There was nothing said by his Honor that was calculated to influence tlie jury, or create a wrong impression upon their minds prejudicial to the defendants. The remark complained of, “that he had heard the defendants’ counsel commenting upon it (the testimony of Etheridge), and thought of calling it to his attention at the time, but did not,” was fully *173 explained, by telling the jury that he did not have it on his notes, but he left it to the jury to say what the testimony was; that they were the judges of the facts, and must take the testimony from the witnesses and not from his notes. This was fair and proper, and all that the defendants had the right to expect. There was no conflict between the Court and the counsel of the defendants. His Honor did not insist that the testimony had not been given. It was the province of the jury to determine whether the evidence had been given, and his Honor, very properly, submitted it to their recollection and determination. This case is very like that of State v. Keath, 83 N. C., 626, when there was a conflict of memory between the Court and counsel of the prisoner as to what a witness had testified. This Court said, “ His Honor might very properly have insisted upon his notes as the correct statement of the testimony of the witness, but as his Honor candidly told the jury that he might be mistaken in the notes of the testimony, and they might use the notes for refreshing their memory as to what he did say, but it was from the mouth of the witness they were to get the testimony upon which to found their verdict, it was fairly submitting the question of fact to the recollection of the jury.” And the exception was overruled and a new trial refused upon that grouud. As to the other ground of exception, that, his Honor did not tell the jury that Etheridge testified that plaintiff told him “that she would not have brought it (the suit) but for other persons who got her to do it,” is, we think, duly disposed of by the comments upon the other exception. His Honor could not conscientiously tell the jury that evidence had been offered which he had not heard; all he could do, was what he had done — submit the matter to their recollection. There is no error, and the judgment of the Superior Court is affirmed. No error. Affirmed.