Opinion
Filed 29 September, 1954.
1. Criminal Law 78g — Ordinarily exception to improper remarks of the solicitor during the argument must be taken before verdict.
2. Criminal Law 50f — Where the remarks of counsel are improper in themselves, or are not warranted by the evidence, and are calculated to mislead or prejudice the jury, it is the duty of the court to correct same upon objection, and, even in the absence of objection, it is proper for the court to correct gross abuse ex mero motu.
3. Same — Ordinarily the court, upon objection, may correct improper argument of the solicitor in his charge, but if the impropriety be gross it is the duty of the court to interfere at once.
4. Same — Argument of solicitor held improper as appealing to prejudice and as being unwarranted by evidence. In this prosecution of the defendant for driving on the highways of the State while under the influence of intoxicating liquor, the solicitor argued that the jury should accept the word of the local officers as against the word of a stranger from another state, and argued that just because the defendant was a man of wealth having unlimited means, he should not be permitted to drive through the county, criticizing its roads, and running down children in his big car, and that the fact that a bottle of whiskey found in the defendant's car had the seal unbroken was no evidence that defendant had not taken a drink, since defendant, being a man of means, could buy several bottles and throw each away after he had broken the seal and taken a drink, etc. There was no evidence in the record that the defendant was a man of wealth. Held: The argument was improper both as containing appeals to prejudice and as being unwarranted by the evidence. Such impropriety is not corrected by an instruction that the jury should give a nonresident as fair a trial as a resident and should give a man of means as fair a trial as a man without means, there being no instruction that the argument was improper and that the jury should disregard it.
5. Criminal Law 67a, 78g — The defendant's assignments of error to the argument of the solicitor in a non-capital case cannot be sustained when not supported by exception taken before verdict, but upon the record in this case the Supreme Court, in the exercise of its supervisory power, takes cognizance ex mero motu to preserve defendant's constitutional right to a fair and impartial trial.
APPEAL by defendant from Burgwyn, Emergency Judge, March Criminal Term 1954 of CASWELL.
Harry McMullan, Attorney General, Ralph Moody, Assistant Attorney General, and Charles G. Powell, Jr., Member of Staff, for the State.
W. Brantley Womble for Defendant, Appellant.
BOBBITT, J., dissenting.
JOHNSON, J., concurs in dissent.
HIGGINS, J., concurring in dissent.
Criminal prosecution upon a warrant charging the defendant with driving an automobile upon the highways of the State, while under the influence of intoxicating liquor in violation of the State statute. On this warrant the defendant was found guilty, and judgment pronounced by the Caswell County Recorder's Court. On appeal to the Superior Court of the county the defendant was tried de novo, convicted by a jury, and judgment pronounced.
The defendant appealed to the Supreme Court assigning error.
The defendant's assignments of error, except those that are formal, relate to the argument of the Solicitor for the State to the jury. The part of his argument assigned as error is as follows: "1. Officer Norwood and Sheriff Harrison are personally known to all of you for years, whereas this stranger from Texas is an unknown. Therefore, you have no choice but to take the word of the local officers against his.
"2. Just because he is a man of property, can afford an expensive Lincoln car is no reason why he can come through here and break our laws. The rest of us are not blessed with wealth and have to be satisfied with the simple things of life.
"3. Just because he drives a Lincoln car 1,000 miles a week and covers seven states is no reason why he can come through Yanceyville criticizing our roads and saying they are narrow and full of curves. These roads are good enough for the rest of us. If he doesn't like them, let him stay out of here and go back to Texas where he belongs. We have to be satisfied with the meagre possessions we have. I dare say not one of us here owns a Lincoln car.
"4. Just because he is a man of property and can afford a Lincoln car, are you going to allow him to drive through here and run down your little daughter or your little son, or yours, or yours? I say `No.' You must find him guilty.
"5. And as for his having a sealed bottle of whiskey in his car, thus claiming that he hadn't been drinking, I ask you to ignore this apparently innocent unopened bottle of whiskey. This man of property, in order to delude police, can afford to buy two bottles, take a few swigs out of one and then throw it away — keeping the sealed bottle conspicuously in the car to prove he hasn't touched it. Having unlimited means, he will stop further up the road, buy another bottle, have a few swigs out of it, and throw this away, too. With his means, he can do this repeatedly and ignore the expense, thus drinking himself into such a condition that he is no longer fit to drive but still having the sealed bottle there in the car as a decoy to the arresting officer.
"6. This business of having power steering and automatic headlight dimmers — luxuries that you gentlemen can't afford on your cars — is no license for him to come through our community breaking our laws."
The evidence for the State tends to show that the defendant is a traveling salesman living in Raleigh, to which place he came from Texas. In the car with him were two ladies, neither of whom was drinking. The patrolman found in the car a pint of ABC whiskey with unbroken seal, and testified there was no evidence that drinking had been going on in the car.
There is no evidence in the record that the defendant was a man of wealth having unlimited means, as argued by the solicitor. The fact that he was driving a Lincoln car permits no such inference.
The record shows that the defendant excepted to the solicitor's remarks, but it does not show when the exception was made. Upon inquiry by this Court upon the oral argument as to when the exception was made, defendant's counsel replied that it was entered after the verdict of guilty, when he made a motion that the verdict be set aside on the ground that the argument of the solicitor was prejudicial, and then moved that the court set aside the verdict in its discretion.
The court made this reply to the motion of the defendant to set the verdict aside: "I am not going to set it aside. I tried to charge the jury and impress on them that it is their duty to give a man from Texas as fair a trial as a man from North Carolina or another county in the State; and to give a man of means as fair a trial as a man of no means. It is a question of fact." That in substance is all the court charged the jury in respect to the improper remarks of the solicitor. Nowhere in the charge did the court charge the jury that the remarks of the solicitor were improper, grossly unfair and highly prejudicial, and that the jury should disregard such remarks. Nowhere in the charge did the court instruct the jury that there was no evidence that the defendant was a man of wealth possessed of unlimited means, and that the jury should disregard such remarks. On the contrary, it would seem that the court emphasized the solicitor's remarks that the defendant was a man of wealth. The court's reply to the motion of the defendant to set the verdict aside and its attempt in its charge to correct the baneful effect of the remarks of the solicitor make it manifest that the court heard the improper remarks, or at least it was brought to its attention before it delivered the charge to the jury.
We have held in a long line of decisions that exception to improper remarks of counsel during the argument must be taken before verdict. S. v. Suggs, 89 N.C. 527; S. v. Tyson, 133 N.C. 692, 45 S.E. 838; S. v. Steele, 190 N.C. 506, 130 S.E. 308; S. v. Hawley, 229 N.C. 167, 48 S.E.2d 35. The rationale for this rule, which has been frequently quoted in our decision, is thus stated in Knight v. Houghtalling, 85 N.C. 17: "A party cannot be allowed . . . to speculate upon his chances for a verdict, and then complain because counsel were not arrested in their comments upon the case. Such exceptions, like those to the admission of incompetent evidence, must be made ;n apt time, or else be lost."
We have modified this general rule in recent years so that it does not apply to death cases, when the argument of counsel is so prejudicial to the defendant that in this Court's opinion, it is doubted that the prejudicial effect of such argument could have been removed from the jurors' minds by any instruction the trial judge might have given. S. v. Little, 228 N.C. 417, 45 S.E.2d 542; S. v. Hawley, supra; S. v. Dockery, 238 N.C. 222, 77 S.E.2d 664.
In respect to the general rule we said in S. v. Davenport, 156 N.C. 596, p. 612, 72 S.E. 7: "In the passage taken from S. v. Tyson, we did not intend to decide that a failure of the judge to act immediately would be ground for a reversal, unless the abuse of privilege is so great as to call for immediate action, but merely that it must be left to the sound discretion of the court as to when is the proper time to interfere; but he must correct the abuse at some time, if requested to do so; and it is better that he do so even without a request, for he is not a mere moderator, the chairman of a meeting, but the judge appointed by the law to so control the trial and direct the course of justice that no harm can come to either party, save in the judgment of the law, founded upon the facts, and not in the least upon passion or prejudice. Counsel should be properly curbed, if necessary, to accomplish this result, the end and purpose of all law being to do justice." (Italics ours).
We have also held in many cases that where the remarks of counsel are improper in themselves, or are not warranted by the evidence, and are calculated to mislead or prejudice the jury, it is the duty of the court upon objection to such remarks to interfere. S. v. O'Neal, 29 N.C. 251; Melvin v. Easley, 46 N.C. 386 (no exception was made to improper argument of the plaintiff's counsel as to statements in a book he held in his hand, which was not in evidence and not admissible; the court did not correct the mistake at the time nor in its charge; on the contrary the court decided the book was admissible in evidence, and charged the jury upon it as evidence; a venire de novo was ordered); Jenkins v. Ore Co., 65 N.C. 563; McLamb v. R. R., 122 N.C. 862, 29 S.E. 894; Perry v. R. R., 128 N.C. 471, 39 S.E. 27; S. v. Davenport, supra; S. v. Tucker, 190 N.C. 708, 130 S.E. 720; S. v. Howley, 220 N.C. 113, 16 S.E.2d 705; S. v. Little, supra; S. v. Hawley, supra; S. v. Bowen, 230 N.C. 710, 55 S.E.2d 466.
Ordinarily the court may correct improper argument at the time or when it comes to charge the jury. S. v. O'Neal, supra; Melvin v. Easley, supra; McLamb v. R. R., supra; S. v. Little, supra. If the impropriety be gross, it is the duty of the court to interfere at once. Jenkins v. Ore Co., supra; S. v. Tucker, supra.
It is especially proper for the court to intervene and exercise the power to curb improper argument of the solicitor when the State is prosecuting one of its citizens, and should not allow the jury to be unfairly prejudiced against him. S. v. Williams) 65 N.C. 505. Every defendant should be made to feel that the solicitor is not his enemy, and that he is being treated fairly. S. v. Smith, 125 N.C. 615, 34 S.E. 235; S. v. Tucker, supra.
Counsel have wide latitude in making their arguments to the jury. S. v. O'Neal, supra; McLamb v. R. R. supra; S. v. Little, supra. However, it is the duty of the judge to interfere when the remarks of counsel are not warranted by the evidence, and are calculated to mislead or prejudice the jury. McLamb v. R. R. supra; Perry v. R. R., supra; S. v. Howley, supra. "Courts should be very careful to safeguard the rights of litigants and to be as nearly sure as possible that each party shall stand before the jury on equal terms with his adversary, and not be hampered in the prosecution or defense of his cause, by extraneous considerations, which militate against a fair hearing." Starr v. Oil Co., 165 N.C. 587, 81 S.E. 776.
The remarks of the solicitor in his argument were grossly unfair and well calculated to mislead and prejudice the jury. Counsel for the defendant should have objected to these improper remarks as soon as they were begun, and before they were elaborated in detail. If verdicts cannot be won without appealing to prejudice, they ought not to be won at all. We can see how the vigorous solicitor in the heat of debate made these improper remarks without conscious intent to mislead and prejudice the jury, but coming from him in his exalted place with the high respect that he has earned for himself in his district, such remarks were disastrous to the defendant's right to a fair and impartial trial.
Advertent to what this Court had said in S. v. Davenport, supra, quoted above, the able and experienced trial judge, out of his inherent sense of fairness, attempted to remove from the minds of the jury the prejudicial effect of the improper remarks of the solicitor without a request from defendant's counsel. Doubtless, he thought he had done so, but we sitting here in calm review are of opinion that he did not do so.
The defendant's assignments of error are not sustained, because not made in apt time.
However, this Court is vested with authority to supervise and control the proceedings of the inferior courts. N.C. Constitution, Art. IV Sec. 8; S. v. Cochran, 230 N.C. 523, 53 S.E.2d 663. This Court has exercised this power very sparingly, and rightly so.
Under the facts of this case, we are of opinion, and so hold, that to sustain this trial below would be a manifest injustice to the defendant's right to a fair and impartial trial. Acting under the supervisory power granted to us by the State Constitution, a new trial is ordered to the end that the defendant may be tried before another jury, where passion and prejudice and facts not in evidence may have no part.
New trial.