#### STATE v. RAY HUMBLES.

(Filed 3 November, 1954.)

1. Criminal Law § 58—

The ordering of a mistrial in a ease less than capital is a matter in the discretion of the judge, and the judge need not find facts constituting the reason for such order.

2. Criminal Law § 81a—

The action of the trial court in ordering a mistrial in his discretion in a prosecution for an offense less than a capital felony is not reviewable in the absence of gross abuse.

3. Criminal Law § 22—

The action of the trial court in ordering, in the exercise of his discretion, a mistrial in a prosecution for an offense less than capital will not support a plea of former jeopardy in a subsequent prosecution.

4. Criminal Law § 50d—

Non-impeaching questions ashed by the court of defendant in this case *held*not prejudicial, it being apparent that they could not have left the impression on the jury that in the judge’s opinion the defendant was unworthy of belief.

5. Criminal Law § 81c (3) —

The exclusion of certain testimony as to a matter which was brought out on the subsequent cross-examination by defendant of another witness, *held*not prejudicial.

*48<3. Criminal Haw § 53f—

Where, at the beginning oí the narration of the testimony of a witness, the court uses the phrase “tending to show,” it is not necessary for the court to repeat this phrase throughout the statement of her testimony, and the court’s failure to do so *held*not prejudicial in this case as an expression of opinion by the court as to the truth of the witness’ testimony.

Appeal by defendant from *Williams, J.,*April Term 1954 of Pitt.

Criminal prosecution on indictment charging the defendant with felo-niously assaulting Mrs. Wyatt Gardner with a deadly weapon, to wit: a tractor, with intent to kill her and inflicting upon her serious injuries not resulting in death.

The defendant and Mrs. Gardner are brother and sister: defendant’s wife is the sister of Mrs. Gardner’s husband. The case before us originated in a family dispute over possession of a three-acre piece of land which the defendant had put a fence around, sowed with lespedeza and put his cows in. Mrs. Gardner and her husband contended they had rented this piece of land, and were entitled to its possession. Defendant contended he had leased this piece of land, and was in rightful possession. This land was opposite the house where the Gardners lived.

The State’s evidence tended to show these facts: On the morning of 29 May 1953 the defendant drove his tractor with a mowing machine attached on this piece of land, and began mowing lespedeza. Mrs. Gardner picked up an axe, went to the land, knocked down every post to the fence surrounding the land, and left the fence lying on the ground. The defendant kept on mowing. Mrs. Gardner’s husband arrived, and told the defendant that two years ago he had forbidden him, the defendant, from using this land. The defendant, after a little more mowing, turned his tractor around, and intentionally drove his tractor against and upon Mrs. Gardner fracturing her leg at the knee and inflicting other painful injuries. When the tractor approached Mrs. Gardner, she stood as stiff as a board. Whereupon a fight ensued between Mrs. Gardner, her husband and the defendant. Mrs. Gardner said her husband “whipped the pure dust out of him.”

The defendant offered evidence tending to show these facts: That he did not run his tractor into or upon the body of Mrs. Gardner. That while he was mowing, Wyatt Gardner ran up and struck him on the head with a wrench; that Mrs. Gardner grabbed him by the shirt collar. That he jumped off the tractor, and “slammed them down.” That he then got back on the tractor, a.nd finished mowing.

The defendant’s case was consolidated for trial with a case against Wyatt Gardner and his wife for assaulting the defendant.

Yerdict: Guilty as to Ray Humbles of assault with a deadly weapon; Not Guilty as to Mr. and Mrs. Wyatt Gardner.

*49Judgment was pronounced upon the verdict.

The defendant appeals, assigning error.

*Harry McMullan, Attorney General, and Claude L. Love, Assistant Attorney General, for the State.*

*Albion Dunn and L. W. Gaylord, Jr., for Defendant, Appellant.*

Parker, J.

At the November Term 1953 of Pitt County Superior Court, His Honor J. Paul Frizzelle presiding, the defendant was called for trial upon the indictment in the instant case; he pleaded Not Guilty, and a jury was properly impaneled. After the trial had proceeded at some length, and evidence had been offered by the State, Judge Frizzelle withdrew a juror, and ordered a mistrial. Judge Frizzelle found no facts. The defendant did not except. It is obvious that Judge Frizzelle ordered the mistrial in his discretion in order that the case of the defendant for assaulting Mrs. Gardner and the case of Wyatt Gardner and his wife for assaulting Eay Humbles might be tried together. When the defendant’s case was called for trial at the April Term 1954, he entered a plea of former jeopardy and Not Guilty. The plea of former jeopardy was denied, and the defendant excepted, and assigns it as error.

The ordering of a mistrial in a case less than capital is a matter in the discretion of the judge, and the judge need not find facts constituting the reason for such order. *S. v. Dove,*222 N.C. 162, 22 S.E. 2d 231; *S. v. Guice,*201 N.C. 761, 161 S.E. 533; *S. v. Upton,*170 N.C. 769, 87 S.E. 328; *S. v. Andrews,*166 N.C. 349, 81 S.E. 416; *S. v. Bass,*82 N.C. 570; *S. v. Sheppard Johnson,*75 N.C. 123. The judge’s action is not reviewable — a position undoubtedly sound, unless under circumstances establishing gross abuse; a case not presented by this Record. *S. v. Guice, supra; S. v. Andrews, supra; S. v. Bass, supra.*

In capital cases only is the judge required to find the facts and place them on record, so that if a plea of former jeopardy is entered, the action of the court may be reviewed; a practice based on the innate sense of justice of the common law — no man shall be twice put in jeopardy of life and limb. The word “limb” having reference to the barbarous punishment, which has now become obsolete, of striking off the hand. Coke Litt., 227; 3 Inst. 110; *S. v. Crocker,*239 N.C. 446, 80 S.E. 2d 243; *S. v. Dove, supra; S. v. Guice, supra; S. v. Tyson,*138 N.C. 627, 50 S.E. 456; *S. v. Sheppard Johnson, supra.*

The defendant’s assignment of error to the denial of his plea of former jeopardy is overruled.

The defendant assigns as error No. 2 that the trial judge by the questions he asked the defendant, when he was testifying in the case, conveyed to the jury the impression that the defendant was not worthy of *50belief, especially as he asked Mrs. Gardner only two questions and her husband none. The judge on four occasions asked questions of the defendant. *First,*the defendant had said Wyatt Gardner and his wife had not asked him to take the fence down around this three-acre piece of land; he did not know there was a controversy about the land when he put the fence up. Mrs. Gardner had previously testified as to a controversy about this land between her husband, herself and defendant before the fence was erected. The judge asked the defendant: “Q. Anything said to your wife about it in your presence? A. No Sir.” The defendant did not object. *Second,*after more testimony by the defendant he said he did not deliberately aim at Mrs. Gardner with his tractor and run over her; that he didn’t go anywhere near her with the tractor; doesn’t know how she got on his (her husband’s) tractor. At this place the judge asked defendant these questions : “Q. Where was she the last time you saw her? A. She was at the path; he was turning the tractor around getting her up. Q. What position was she in ? A. I couldn’t say. Q. What do you mean ‘getting her up’ ? A. She was getting up on the tractor, and he was getting down off the tractor.” The defendant objected and excepted to these questions. These questions refer to Wyatt Gardner carrying his wife out of the field on a tractor he had procured from his home, after his wife had sustained a fractured knee. The judge asked the defendant the questions on these two occasions when the defendant was being cross-examined by S. 0. Worthington, attorney for the Gardners. *Third,*when the defendant was being re-examined by his attorney, he testified he had leased this land in 1949. Whereupon the judge asked this question: “Q. You leased it in 1949 and didn’t lease it after that? A. Yes.” The defendant made no objection. There was re-cross-examination by S. 0. Worthington, and then defendant’s lawyer examined him again. *Fourth,*the defendant then said he leased the land from Mrs. N. 0. Gardner. Whereupon the judge asked this question: “Q. When did you say you leased it ? A. I dis-remember. I believe it was in 1950 I tended it. Q. I understand you tended it that year, and didn’t lease it any more, is that right? A. I tended it one year, and my boy went in the Army in' Korea, and he was gone two years, and has been back one year, and this is the second year.”

On direct examination Mrs. Gardner said: “After I knocked down all the posts'he (the defendant) got off his tractor after he drove up to where I was and said: ‘What are you tearing down my fence for ?’ ” The judge then asked Mrs. Gardner: “Where were you then?” Later on Mrs. Gardner testified that after her knee was fractured and the fighting was over, her husband helped get her to the path, and she told him put me down, I am about to faint. Then the judge asked: “Q. Did he hear what you told your husband? A. Yes Sir. Q. What did you tell him? A. I said: ‘Honey, hurry to the house and get the tractor; I am about to faint.’ ”

*51In our opinion, and we so bold, tbe questions asked by tbe judge and tbe evidence brought out could not have created in tbe minds of tbe jury tbe impression tbat in tbe judge’s opinion tbe defendant was unworthy of belief. Tbe questions did not impeach him. We do not see bow it could have affected tbe jury’s verdict. Prejudicial error is not made to appear. *S. v. Perry,*231 N.C. 467, 57 S.E. 2d 774. Assignment of error No. 2 is overruled.

On cross-examination of Wyatt Gardner by defendant’s counsel, be asked this question: “Q. You beard your wife say she stood there, and wanted to see if be bad nerve enough to run over her?” Tbe objection of tbe State was sustained, and tbe defendant excepted. This is bis assignment of error No. 3. What tbe witness would have answered, if permitted to do so, is not in tbe Eecord.

On cross-examination of Mrs. Wyatt Gardner by defendant’s counsel she testified she was standing in tbe field, after she bad torn tbe posts down, and her husband said “look out.” She “looked him (tbe defendant) right in tbe face, and be (tbe defendant) looked me right in tbe face, and come with tbe tractor right at me. I stood right there, stiff as a board. ... be run on me with tbe tractor.”

It would seem tbat tbe court’s refusal to permit Wyatt Gardner to answer tbe question was harmless in tbe light of Mrs. Gardner’s replies to defendant’s counsel on cross-examination.

Tbe defendant’s assignments of error Nos. 4, 5, 6 and 7 are tbat tbe judge in bis charge in stating tbe testimony of Mrs. Gardner began by saying tbe State says and contends tbat you ought to find beyond a reasonable doubt tbat tbe defendant Eay Humbles and tbe defendants Wyatt Gardner and wife are each guilty as charged in tbe indictment, “and in support of its contentions offers evidence tending to show in tbe case of Eay Humbles in tbe testimony of Mrs. Gardner . . .” Tbe defendant contends tbat tbe judge in stating Mrs. Gardner’s testimony did not again inject tbe phrase tbat Mrs. Gardner’s testimony tended to show; tbat this created in tbe minds of tbe jury tbe impression tbat tbe judge thought every statement made by Mrs. Gardner bad been proved as a fact.

A reading of tbe charge in its entirety shows tbat in stating tbe testimony of tbe other witnesses, tbe judge used tbe same formula. For instance, “in tbe case against Mrs. Gardner and Wyatt Gardner, and testifying in bis own behalf Eay Humbles offered evidence tending to show etc.,” and in narrating Humbles’ testimony did not repeat tbe words, “tending to show.” The statement of tbe testimony of Mrs. Gardner in tbe charge covers a little over 2% pages, and tbe statement of tbe testimony of tbe defendant not quite 2 pages.

In *S. v. Holbrook,*232 N.C. 503, 61 S.E. 2d 361, the defendant assigned as error tbe failure of tbe judge to repeat tbe words beyond a reasonable *52doubt every time be used the words if the State has satisfied you from the evidence. *Stacy, O. J.,*speaking for the Court said: “However, as this was given at the beginning of the charge and repeated several times thereafter, the jury could hardly have been misled by the court’s failure to repeat it each time a finding from the evidence was to be made.”

The defendant did not object to the court’s statement of Mrs. Gardner’s testimony, while the charge was being delivered. The judge clearly stated at the beginning of his statement of Mrs. Gardner’s testimony that her testimony tended to show, etc. It was not necessary for him to repeat the phrase, while narrating her testimony. The contention of the defendant is unsound. Assignments of error Nos. 4, 5, 6 and 7 are not sustained.

Defendant’s other assignments of error have been examined, and are overruled.

On the Record as presented, no reversible error has been made manifest.

No error.