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STATE v. BROWNING.

said, "if the witnesses for the State are to be believed, it was not Browning who burned the stable or made the tracks in the field, for they swore that the steps made by the left leg were the shortest (of which there was evidence) whereas it was to be inferred that if the defendant's left leg was the longer, the defendant must make the longest step with that leg." His Honor interrupting, said, "I thought you were going to ask Dr. Carson how that was, while you had him on the stand, but you did'nt do it; " Counsel, "I did not do it because I thought it was self-evident;" His Honor, "I am not sure about that." This colloquy constitutes the basis of the defendant's exception. Verdict of Guilty. Judgment. Appeal by defendant.

Mr. R. F. Armfield who prosecuted in the Court below, appeared with the Attorney General, for the State.

Mr. G. N. Folk, for the defendant.

FAIRCLOTH, J. The defendant made two exceptions but properly abandoned one of them in this Court, and we do not think he is entitled to a new trial on the other. The evidence of tracks entered into and became material on the trial. It was proved that the defendant's left leg was one and a half or two inches longer than the other, and there was evidence tending to show that his left step was longer than the other, and there was evidence that the left step of the track seen in the field was shorter than the right step. Whilst defendant's counsel was arguing that the longer leg would make the longer step, His Honor said, "I thought you were going to ask Dr. Carson how that was when you had him on the stand, but you did not do it," and the counsel said, he did not do so because he thought it was self-evident, to which His Honor replied, "I am not sure about that," and defendant excepted.

It is urged that the language of the Judge in a colloquy

STATE v. BROWNING.

between himself and the counsel in presence of the jury, was a violation of the Act of 1796. Bat. Rev. ch. 17 § 237. Whilst the Act in terms only forbids that the Judge shall give an opinion "whether a fact is fully or sufficiently proved," still it is the accepted and settled construction that he shall give no opinion on the weight of the evidence; and whilst the inhibition is limited to the occasion of giving á charge to the jury, yet if at any time in the progress of the trial, the Judge should express an opinion on the weight of the evidence, or use language which fairly interpreted, would make it reasonably certain that it would control or influence the minds of the jurors in determining a fact, it would be a violation of the Act. It is not insisted that Iis Honor failed to collate and submit the evidence in a proper manner. It is only claimed that he erred in intimating a doubt to the counsel, not to the jury, in regard to the conclusion which the counsel seemed to think was self-evident, to wit, that the longer leg would make the longer step; but we cannot see with any degree of certainty that the remark was calculated to influence the jury prejudicially to the defendant. At most it was only the expression of a doubt on a mathematical proposition, and not of an opinion on the weight of the evidence. In most cases in the course of the trial, it becomes necessary for the Judge to pass upon and decide collateral questions of fact, and such decisions taken abstractly and without their proper connection with other things, might seem to be an opinion upon those matters belonging exclusively to the jury; but it must be presumed that their true import and bearing are understood by the jury, and unless it appears with ordinary certainty that the rights of the prisoner have been in some way prejudiced by the remarks or conduct of the Court, it cannot be treated as error. Let this be certified that the Court below may proceed according to law.

No error.

PER CURIAM.

Judgment affirmed.

STATE v. DIXON.

STATE v. M. C. DIXON and another.

Practice-New Indictment-Several Defendants and Separate Defences-Discretionary Power of Court.

1. In the prosecution of criminal actions, the Solicitor is not restricted to the first bill of indictment found, but may at any time before entering upon the trial send another bill to the Grand Jury and require the defendants to answer that.

2. On the trial of a criminal action, where there are two or more defendants and their defences are separate and antagonistic, the Court must regulate the order and manner in which the defences are to be presented, and the exercise of such discretion is not reviewable in this Court.

INDICTMENT for an Affray tried at Spring Term, 1877, of GUILFORD Superior Court, before Cor, J.

The defendants, M. C. Dixon and J. B. Gretter, were indicted for an affray and put upon trial on a new bill substituted for that upon which they had been arrested, and differing from the first, only in the order in which their names appeared on the bill. When the evidence offered for the State was concluded, the Court directed the defendant, Dixon, to introduce and examine his witnesses, and then the other defendant to do the same. Some of the evidence offered by the defendant, Gretter, tended to the inculpation of Dixon, and the latter was offered an opportunity to meet and rebut it, which was declined. The jury found both defendants guilty and the Court pronounced judgment, from which Dixon appealed.

Attorney General, for the State.

Messrs. J. A. Gilmer and J. T. Morehead, for defendant.

SMITH, C. J. (After stating the facts as above.) We find

STATE v. DIXON.

nothing in the conduct of the cause of which the appellant can rightfully complain. The Solicitor is not restricted to the first bill, but may at any time before entering upon the trial send another bill to the grand jury, and require the defendants to answer that. It is equally plain that where several persons are charged, whether they unite in a common defence, or as in this case where their defences are separate and antagonistic, the Court must regulate the order and manner in which the defences are to be presented; and the exercise of this discretion cannot be reviewed in this Court. But as far as any rule of practice is to be found, it was observed in this case, by calling on the defendant whose name first appeared on the bill, to begin his defence. This was done in the case of Regina v. Barber, 1 Car. & Payne, 434, where the defendants' counsel were unable to agree among themselves.

No error.

PER CURIAM.

Judgment affirmed.

STATE. SMALLWOOD.

STATE v. BENJAMIN SMALLWOOD.

Practice-Argument of Counsel-Misconduct of Jury-Mistake of Jury.

1. On the trial of a case in the Court below, counsel can not read to the jury in his argument, an opinion of this Court delivered on an - appeal from a former trial in the same case, detailing some of the facts of the case as they then appeared.

2. Where a motion is made, upon affidavits, in the Court below to set aside the verdict upon the ground of improper conduct in the jurors, the facts should be ascertained by the Court and spread on the record. This Court will not look into the affidavits.

3. If the motion is grounded upon the mistake of the jury, this Court can take no notice of such mistake, whether of fact or law; the only remedy is for the Court below to grant a new trial.

4. Misconduct on the part of a jury, to impeach their verdict, must be shown by other testimony than their own.

(State v. Whit, 5 Jones, 225; State v. O'Neal, 7 Ire. 251; State v. Godwin, 5 Ire. 401; Love v. Moody, 68 N. C. 200; Rhinehart v. Potts, 7 Ire. 403; State v. Gallimore, Ibid. 147; Long v. Gantley, 4 Dev. & Bat. 315; Goodman v. Smith, 4 Dev. 459; Reed v. Moore, 3 Ire. 313; State v. McLeod, 1 Hawks 344, cited and approved.)

INDICTMENT for Murder removed from Bertie and tried at Fall Term, 1876, of WASHINGTON Superior Court, before Moore, J.

The case is sufficiently stated by Mr. Justice ВYNUм, in delivering the opinion of this Court. Verdict of guilty. Judgment. Appeal by prisoner.

Attorney General, for the State.

Msssrs Busbee & Busbee, for the prisoner.

BYNUM J. This case has been here once before. 75 N. C. 104. In his argument to the jury, the prisoner's counsel offered to read a portion of the opinion of the Supreme

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