On the trial before Martin, J., at PASQUOTANK, on the last circuit, the case stated that "the prosecutor and owner, who was a respectable citizen, gave a clear and apparently unimpassioned relation of the circumstances affecting the case" — stating in substance that he had lost his property in March before the trial — that he applied to the defendant for information respecting it, who denied that he had any knowledge of it — that in two or three days thereafter, he found a part of it in the possession of the defendant; and that afterwards, he found the rest of it in the possession of a neighbor of the defendant. This neighbor was examined, and proved, that four or five weeks before the prosecutor claimed the property found in his possession, he had bought it of the defendant.

For the defendant, it was contended that the evidence proved that the defendant stole the property, and not that he received it, knowing it to be stolen — that his being found in possession of it raised a presumption that he was the thief, and that there was no evidence of a theft having been committed by anybody else.

In summing up, his Honor stated, "that the prosecutor appeared to have given a very fair and candid statement — that he seemed to be a creditable man — but, he added, perhaps I am going too far in speaking thus of the prosecutor and his testimony; you, gentlemen, are the exclusive judges of such matters. I have no right to express an opinion upon the facts of the case, and therefore you will decide entirely for yourselves, what degree of credit you will give the prosecutor, without being at all influenced by any inadvertent (613) remarks of mine."

His honor left it with the jury to find whether the defendant actually stole the goods, or received them knowing them to be stolen, informing them if they should find that he was the thief, they ought to acquit him.

The defendant was convicted and appealed.

GASTON, J., after stating the charge as above, proceeded:

The counsel for the appellant insists that the remarks characterized by the Judge as inadvertent, and which the counsel very candidly admits to have been such, transgressed the grounds imposed on Judges by the act of 1796, entitled, "An act to secure the impartiality of trial by jury, and to direct the conduct of Judges in charge to the petit jury" — that whatever effect the immediate connection of this mistake may have produced on the minds of the jury, it was physically impossible to obliterate from their recollection what was the Judge's opinion of this testimony — that this opinion was forbidden by the law to be made known to them — that the trial, because of this prohibited communication, was illegal; and that the defendant has therefore a right to require that the verdict, consequent upon such illegal trial, should be set aside.

The act of 1796 enacts "that it shall not be lawful for a Judge, in delivering a charge to the Petit Jury, to give an opinion whether a fact has been fully or sufficiently proved, such matters being the true office and province of a jury; but it is hereby declared to be the duty of the judge in such cases, to state in a full and correct manner the facts given in evidence, and explain the law arising therefrom." It is obvious that if we confine ourselves to the words of this statute, there is no ground for the complaint which we are now considering. But it has been long since settled, that the literal, is not the true interpretation of the act. Solicitous to discover and faithfully to carry into execution the legislative will, this Court (614) has fixed its attention upon the purposes declared in the act, and has given to it such a construction as it believed, would most effectually accomplish these purposes. On the one hand, it has been seen, that the Legislature designed to preserve the purity and independence of the trial by jury, by securing to every man, the right to have a decision upon the controverted facts of his case, which shall be the result of the jury's investigation of the evidence, uninfluenced and unbiased by the opinion of the Judge. On the other hand, it has as clearly seen the desire of the Legislature, that every aid and facility should be given to the jury, by a fair, full and impartial statement of the evidence, and by an explanation of the principles of law therewith connected, to make such investigation correctly, in order to arrive at the true result. It has therefore held, not only that the law may be violated by informing the jury that a fact is, or is not, fully proved, but by giving them to understand on what side the judge believes the weight of evidence to be. But it has also held, that the evidence, of which, the jury is to have a full statement comprehends not only the words testified, but the circumstances under which they are testified, and that it is within the province, nay, part of the duty of the judge, to present these circumstances to their notice, and fairly to comment upon them as part of "the facts in evidence." Reel v. Reel; 9 N.C. 85. S. v. Moses, 13 N.C. 259. It has held that the judge has no right to advise the jury upon the weight of the evidence, but that he may point out, and that he ought to point out, the rules of law which may be useful in ascertaining this weight. If he should err in stating these rules, the party grieved has the legal right to except to the error. If there be any departure, in this statement, from fairness and impartiality, it may be a manifestation of opinion upon the controverted facts, as distinctly as though he had expressed such an opinion.

But, if he bring to the notice of the jury what really is evidence proper for their consideration, if he state the rules of law correctly in relation to this evidence; and if in the recapitulation of the facts, there is no departure from (615) fairness and impartiality; it would be absurd for the party to complain of the judge because of the conclusion, which a fair statement of the evidence and the law plainly indicates or may probably induce. The law desires that the truth should be ascertained. It regards the jury, who are the appropriate triers of facts, as having sufficient capacity and integrity to arrive at a correct result upon the disputed facts, without the aid of an opinion from the Court, as to that result. But it knows that these triers may be aided, and it wills that they should be aided, by the Court summing up for their consideration, the testimony in relation to these facts; including in this summary, the circumstances connected with the testimony; and the rules of law calculated to show their relevancy and application. The task thus allotted to the presiding judge, is confessedly one of great difficulty and delicacy. He is to rescue the case from misrepresentation and misconception of the evidence, and from the false glosses put upon it by ardent and ingenious advocates; he is to present a fair, full and impartial statement of the evidence as applicable to the matter in controversy; he is to collate the testimony of concurring and conflicting witnesses; and indicate these presumptions or legal inferences previously formed on such occasions, and generally found to be accordant with truth; and the more perspicuously and lucidly he discharges these functions, the more faithfully he has performed his duty. But if in doing all this, he intimates his individual opinion, as to the existence, or non-existence of a controverted fact; on which side of the controversy he believes the truth to be; or which of the witnesses he regards as having the higher claims to respect for his accuracy and probity, he then overleaps the boundary of duty, and invades the peculiar and exclusive province of the jury. It is not strange, therefore, that conscientious minds should, in this situation, be perplexed with unfounded scruples. Such do we consider the scruples, which the learned Judge entertained on this occasion; and as he did entertain them, it is (616) impossible not to respect the promptitude and decision, with which he hastened to correct, what he feared, might be an error. But this Court doth not hold it to be an error. The case stated, which is a part of the record, which we are bound to consider as unquestionably true, and which indeed has been unequivocally admitted to be so, declares that the prosecutor and principal witness was a respectable man. This therefore was a fact in evidence, either expressly proved, or (what is more probable) acknowledged on both sides. He also gave a clear and apparently unimpassioned relation of the circumstances of the case. This was another fact creditable to his candor, his accuracy, and his impartiality. As facts they were proper to be stated to the jury, and ought to have on their minds the influence to which the jury believed them entitled. The judge therefore did not err, but was strictly within the pale of duty in thus bringing them before the consideration of the jury.

It is not necessary, but we consider it not inappropriate, to declare the opinion we have formed on the question, whether the Judge's correction of the mistake, in case it had been a mistake, removed the defendant's legal right of exception. We are of opinion that there is a precise analogy between the case, in which improper evidence has been incautiously received, or an intimation of opinion, upon a question of fact, inadvertently given by the Court. So soon as the mistake is discovered, the Judge should specially instruct the jury, wholly to disregard what they ought not to have heard. In either case, if there be reason to believe, that the opinion inadvertently given, or the testimony improperly admitted, has biased the minds and perverted the judgment of the triers, a sufficient cause is furnished, addressed to the discretion of the Judge, for setting aside the verdict. But without some such reason, the presumption of law is that what the Court has withdrawn from the jury, as unworthy of credit, and wholly improper for consideration, has in truth been utterly disregarded. Any other presumption cannot be warranted, without disrespect to a tribunal, which the nature of our institutions proclaims, as having the (617) capacity and probity to decide rightly, where the materials for a correct decision are fairly laid before them. If therefore the Judge had inadvertently expressed an opinion which ought to have been withheld, the complete removal of the opinion, removed also the ground of legal exception to the trial.

The appellant, by his counsel here, objects to the charge delivered by the Judge. He left it to the jury to say, upon the whole testimony, whether they believed the prisoner had committed an actual theft, upon which belief they were instructed not to convict him; or believed that he had received the goods after they were stolen and with a knowledge of the theft. While the counsel admits the charge to be unexceptionable for what it contains, he insists that it was the duty of the Judge to have gone further, and to have instructed the jury, that the evidence tended to prove the prisoner guilty of actual theft, but not of the receiving of goods stolen by some other person. There are many reasons which forbid our listening to this objection.

In the first place, it ought to appear either that such an instruction was specially prayed for and refused, or at all events, that the case was one, in which there was no testimony tending to fix upon the accused the crime charged. The case indeed shows, that the prisoner's counsel argued in his defense to the jury, that if guilty of any offense it was the offense of stealing, and not of that stated in the indictment, but it does not show, that an instruction from the Court was prayed for, as to any legal presumption arising on the evidence. In the next place, upon the application for a new trial, no exception to the want of specific instruction is alleged. We cannot intend therefore that it had been asked and refused. Nor are we at liberty to pronounce, whether the testimony would have warranted such special instruction, because, according to the law of this Court, no more of the testimony is to be found on the case stated, than is necessary to present the points distinctively raised upon the record. Circumstances, in themselves and separately not of much weight, might and ought to have great influence in determining, whether the prisoner was (618) guilty of stealing or receiving stolen goods, very proper to be laid before, and to be considered by those who were to try the facts, but not proper to be inserted, and perhaps wholly overlooked, in a statement intended to present legal errors for the decision of a tribunal, which has no authority to examine into facts.

We are of opinion, that the errors assigned and the objections taken, to the judgment in the Superior Court, are not sustained, and that a certificate to that effect should go to that Court accordingly.

PER CURIAM. Judgment affirmed.

Cited: S. v. Harris, 46 N.C. 196; S. v. Laxton, 78 N.C. 569; S. v. McNair, 93 N.C. 631, 2; S. v. Collins, Ib., 567; S. v. Crane, 110 N.C. 535; Wilson v. Mfg. Co., 120 N.C. 95.