State v. . Benton

Stacy, C. J. The sufficiency of the indictment is challenged by motion in arrest of judgment, because it fails to allege the use of “force” in the accomplishment of the assault. S. v. Johnson, ante, 266; S. c., ante, 671. It has been decided that the words “by force,” or some equivalent expression, must be used in an indictment for rape. G. S., 14-21; S. v. Johnson, 67 N. C., 55. Whether the instant bill is sufficient need not now be determined, since a new trial must be ordered on other grounds, and the solicitor can easily eliminate any objection by sending a new bill to the grand jury. It is desirable in criminal matters to *748 adhere to the established practice. Innovations usually result in prolonged litigation. S. v. Owenby, ante, 521. A careful perusal of the charge invites the thought that it must have impressed the jury with the strength of the State’s case and the weakness of the defendant’s, especially in view of the closing admonition, “the evidence as testified to by the witnesses has been rather clear,” and the result which followed immediately thereafter. S. v. Rhinehart, 209 N. C., 150, 183 S. E., 388; S. v. Hart, 186 N. C., 582, 120 S. E., 345; S. v. Horne, 171 N. C., 787, 88 S. E., 433. The jury could hardly have understood the court to mean that the testimony of the defendant’s witnesses was “rather clear,” for dual, if not discordant, pleas — insanity and alibi — were being interposed by him, and Dr. Owens, who testified in his behalf, had said on cross-examination: “I wouldn’t go so far as to say he doesn’t know right from wrong.” The defendant did not testify before the jury. This pronouncement of the court that the evidence was “rather clear,” would appear to be an invasion of the province of the twelve. S. v. Browning, 78 N. C., 555; Earnhardt v. Clement, 137 N. C., 91, 49 S. E., 49. "Whether the evidence was acceptable or worthy of belief belonged to them. S. v. Beal, 199 N. C., 278, 154 S. E., 604. “It is only where the law gives to testimony an artificial weight that the judge is at liberty to express an opinion upon its weight.” Bonner v. Hodges (1st syllabus), 111 N. C., 66, 15 S. E., 881. It is the intent of the statute that the judge shall give no intimation to the jury whether a material fact has been fully or sufficiently established, it being the true office and province of the latter to weigh the testimony and to decide upon its adequacy to prove any issuable fact. S. v. Jones, 181 N. C., 546, 106 S. E., 817. 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. G. S., 1-180. 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 any 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. Withers v. Lane, 144 N. C., 183, 56 S. E., 855. “The slightest intimation from a judge as to the strength of the evidence or as to the credibility of a witness will always have great weight with the jury, and, therefore, we must be careful to see that neither party is unduly prejudiced by an expression from the bench which is likely to prevent a fair and impartial trial” — Walker, J., in S. v. Ownby, 146 N. C., 677, 61 S. E., 630. The judge may indicate to the jury what impression the evidence has made on his mind, or what deductions he thinks should be drawn there *749 from, 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 one of the parties an 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, 33 S. E., 176; S. v. Dancy, 78 N. C., 437; S. v. Jones, 67 N. C., 285. The unusual combination of defendant’s pleas — insanity and alibi— no doubt caused the repeated use of the expression “responsible for his crime.” The jury, of course, was to say whether the alleged rape belonged to the defendant, or was “his crime.” While the disinterestedness of the officers who testified for the State, their freedom from bias and worthiness of belief were brought to the jury’s attention in the form of contention that could hardly be doubted that the triers of the facts gained the impression from what was said that the judge entertained a high regard for their testimony and thought it “quite clear.” McRae v. Lawrence, 75 N. C., 289. Also, in the same category would seem to fall the testimony of the doctor who attended the prosecutrix, for it was recited by way of contention that “he was an expert witness” and what he says “corroborates her testimony.” The manner of stating the contentions of the parties, if indicative of the court’s opinion, is within the prohibition of the statute. G. S., 1-180; Bailey v. Hayman, 220 N. C., 402, 17 S. E. (2d), 520. “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., 48, 84 S. E., 39. The lapsus lingua or misstatement to the jury, if such it were, that defendant’s counsel had asked them to return a verdict of “guilty of assault with intent to commit rape,” rather than one of rape, should have been called to the court’s attention at the time. S. v. McNair, ante, 462. Ordinarily, standing alone, this would perhaps amount to no more than a harmless inadvertence. In the instant case, however, it may have given color and tone to the court’s charge, especially in the light of the prior references to the voluntariness of the confession. We are inclined to the view that the defendant is entitled to an other-hearing. Reel v. Reel, 9 N. C., 63. It is so ordered. New trial.