State v. Roberts

91 S.E.2d 589 (1956)

243 N.C. 619

STATE v. James Harold ROBERTS, Houston Duff and John Manley Sherrer.

No. 2.

Supreme Court of North Carolina.

February 29, 1956.

*590 Hamrick & Hamrick, Rutherfordton, for defendant appellant.

Atty. Gen. Wm. B. Rodman, Jr., Asst. Atty. Gen. T. W. Bruton, for the State.

WINBORNE, Justice.

Among the assignments of error presented by appellant on this appeal, the case on appeal shows that Number Three is based upon exception of like number. It is well taken. It relates to incident which occurred during the course of the trial, narrated as follows:

"During the course of his argument to the jury the Solicitor argued that the defendants had not put up any evidence to show that they were not present in North Carolina at Forest City on the night that Matheny Motor Company was robbed and that their mothers and fathers and brothers and sisters were not here in court to show where they were on that night and that none of their families were here to show that they were not in Forest City on that night. Defendants Objected to this course of arguments as prejudicial and *591 improper because no subpoenaes had been issued for anyone and there was no evidence that any of these men had families or fathers and mothers living. "The court overruled the objection of the defendants and during the argument the Solicitor also stated in the presence of the jury that he had not said a word about the defendants not going on the witness stand themselves. To the ruling of the court in overruling their objection to the argument the defendants, in apt time, excepted."

In this connection, wide latitude is given to the counsel in making arguments to the jury. State v. O'Neal, 29 N.C. 251, 252. McLamb v. Wilmington & W. R. Co., 122 N.C. 862, 29 S.E. 894; State v. Little, 228 N.C. 417, 45 S.E.2d 542.

However, counsel may not "travel outside of the record" and inject into the argument facts of his own knowledge or other facts not included in the evidence. McIntosh N. C. P & P, p. 621. Perry v. Western North Carolina R. Co., 128 N.C. 471, 39 S.E. 27; State v. Howley, 220 N.C. 113, 16 S.E.2d 705; State v. Little, supra; State v. Hawley, 229 N.C. 167, 48 S.E.2d 35; Cuthrell v. Greene, 229 N.C. 475, 50 S.E.2d 525.

And when the counsel does so, it is the right and, upon objection, the duty of the presiding judge to correct the transgression. State v. Little, supra, and cases there cited.

In the present case, the defendant having offered no evidence, the remarks of the Solicitor to which the defendant objects and excepts injected into the case evidence outside the case. Moreover, in speaking to the objection in argument before the Judge, the remark of the Solicitor to the effect "that he had not said a word about the defendants not going on the witness stand themselves," would seem to have added emphasis to the previous language to which the defendant objects.

Furthermore, the latter remark is calculated to infringe upon the rule that comment may not be made upon the failure of a defendant in a criminal prosecution to testify. This is forbidden by statute, G.S. § 8-54. See McLamb v. Wilmington & W. R. Co., supra, and numerous other cases.

For these reasons this Court is impelled to hold that, under the circumstances shown, the argument and remarks of the Solicitor were prejudicial to defendant, requiring intervention by the court. The record fails to show that the error was corrected. Hence there must be a new trial.

Finally, it is appropriate to say that while it appears upon the face of the record, by which this Court is bound on this appeal, that the jury, as hereinbefore recited, returned a verdict of guilty only as to the first count, that is, the count charging breaking and entering with intent to steal, judgment was pronounced on two counts, the one charging larceny, and the other charging breaking and entering with intent to steal. Nevertheless, since there must be a new trial as to appellant for reasons above stated, this matter, in so far as he is concerned, becomes immaterial.

Other assignments of error need not be considered.

New trial.