State v. . Raper

*491 CONNOR, J., As the defendants are entitled to a new trial of this action for error in the refusal of the court to allow their counsel the right at least to conclude the argument to the jury, in accordance with the provisions of Rule 3, Rules of Practice in the Superior Courts of this State (200 N. C., 843) as prescribed by this Court under statutory authority (C. S., 1421), we have not considered and do not pass upon assignments of error on this appeal based on exceptions to rulings of the court with respect to evidence introduced by the State, or to instructions of the court in the charge to the jury. The motion of the defendants, at the close of the evidence, for judgment dismissing the action as of nonsuit (C. S., 4643), was properly denied. The evidence introduced by the State was sufficient in probative force to sustain a verdict that the defendants, and each of them, is guilty as charged in the indictment. It would seem that none of the assignments of error other than that based on the exception to the holding of the court that the State was entitled not only to open but also to conclude the argument to the jury, because the defendant, C. B. Eaper, had introduced evidence at the trial, could be sustained. It appears from the statement of the case on appeal as certified to this Court, that the State introduced as a witness for the prosecution, E. B. Kearnes. On his direct examination by the State, this witness testified that he is the local freight agent of the Norfolk and Western Eailway Company and of the Winston-Salem Southbound Eailroad Company, at Winston-Salem, N. C.; that the defendant, C. E. Wilson, on 31 May, 1932, was employed as billing clerk by both the Norfolk and Western Eailway Company and the Winston-Salem Southbound Eailroad Company, with an office in the station at Winston-Salem, and as such clerk had access to blank bills of lading and blank way-bills kept in said office; and that the defendant, C. B. Eaper, on 31 May, 1932, was employed by the Southern Weighing and Inspection Bureau, in its office in the station of the Norfolk and Western Eailway Company and the Winston-Salem Southbound Eailroad Company at Winston-Salem. On his cross-examination by counsel for the defendant, 0. B. Eaper, the witness, without objection by the State, testified that he knew the general character of the defendant, 0. B. Eaper, and that up to the time of his accusation of the crime charged in the indictment in this action, his general character was good. No evidence was offered or introduced by the defendant, C. B. Eaper, or by any of the other defendants, after the State rested. The court was of opinion that by eliciting from a State’s witness, on his cross-examination, evidence that his general character was good up to the time of his accusation of the crime charged in the indictment in this action, the defendant, 0. B. Eaper, had introduced *492 evidence and that, therefore, neither he nor his codefendants were entitled to open or conclude the argument to the jury, in accordance with the provisions of Rule 3, Rules of Practice in the Superior Courts of this State (200 N. C., 813), as prescribed by this Court under statutory authority. O. S., 1421. We do not concur in the opinion of the court, and hold that it was error for the court, upon the facts shown in the statement of the case on appeal to deny the defendants the right to have their counsel at least to conclude the argument to the jury. This is a substantial legal right, of which the defendants could not be deprived by an exercise of judicial discretion. The defendant in an action, civil or criminal, who introduces no evidence after the plaintiff, or the State, as the case may be, has rested, is entitled as a matter of right to reply to the argument of counsel for the plaintiff or of the solicitor for the State, and to that end to conclude the argument to the jury. The eliciting of evidence in his behalf by the cross-examination of a witness for the plaintiff or for the State, is not such introduction of evidence by the defendant, as deprives him of his right. To hold otherwise, would tend to impair the right of a defendant to cross-examine a witness for the adverse party, without endangering his right, in the event he elects to introduce no evidence, after such party has rested, to have his counsel reply to the argument of counsel for the adverse party, by concluding the argument to the jury. The defendants are entitled to a New trial.