#### STATE v. FRANK E. SMITH.

(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.*

*S.*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 ear, 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.

*6325. Criminal I/aw §§ 67a, 78g—

The defendant's assignments of error to the argument of the solicitor in a non-capital ease 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 *ew mero motu*to preserve defendant’s constitutional right to a fair and impartial trial.

Bobbitt, J., dissenting.

JohNson, J., concurs in dissent.

Higqins, J., concurring in dissent.

Appeal by defendant from *Burgwyn, Emergency Judge,*March Criminal Term 1954 of Caswell.

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.

*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.*

PaeiceR, J.

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.

*633“4. Lust because he is a man o£ 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 aw-ay — 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 Ealeigh, 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 ear.

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 *634disregard 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 in 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 *635calculated to mislead or prejudice tbe jury, it is tbe duty of tbe court upon objection to sucb 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 tbe plaintiff’s counsel as to statements in a book be beld in bis band, wbieb was not in evidence and not admissible; tbe court did not correct tbe mistake at tbe time nor in its charge; on tbe contrary tbe court decided tbe book was admissible in evidence, and charged tbe 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 tbe 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 tbe impropriety be gross, it is tbe duty of tbe court to interfere at once. *Jenkins v. Ore Co., supra; S. v. Tucker, supra.*

It is especially proper for tbe court to intervene and exercise tbe power to curb improper argument of tbe solicitor when tbe State is prosecuting one of its citizens, and should not allow tbe jury to be unfairly prejudiced against him. *S. v. Williams,*65 N.C. 505. Every defendant should be made to feel that tbe solicitor is not bis enemy, and that be 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 tbe duty of tbe judge to interfere when tbe remarks of counsel are not warranted by tbe 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 tbe rights of litigants and to be as nearly sure as possible that each party shall stand before tbe jury on equal terms with bis adversary, and not be hampered in tbe prosecution or defense of bis cause, by extraneous considerations, which militate against a fair bearing.” *Starr v. Oil Co.,*165 N.C. 587, 81 S.E. 776.

Tbe remarks of tbe solicitor in bis argument were grossly unfair and well calculated to mislead and prejudice tbe jury. Counsel for tbe 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 bow tbe vigorous solicitor in tbe beat of debate made these improper remarks without conscious intent to mislead and prejudice tbe *636jury, but coming from Lim in bis exalted place with tbe bigb respect that be bas earned for bimself in bis district, sucb remarks were disastrous to tbe defendant’s right to a fair and impartial trial.

Advertent to wbat tbis Court bad said in *S. v. Davenport, supra,*quoted above, tbe able and experienced trial judge, out of bis inherent sense of fairness, attempted to remove from tbe minds of tbe jury the prejudicial effect of tbe improper remarks of tbe solicitor without a request from defendant’s counsel. Doubtless, be thought be bad done so, but we sitting here in calm review are of opinion that be did not do so.

Tbe defendant’s assignments of error are not sustained, because not made in apt time.

However, tbis Court is vested with authority to supervise and control tbe proceedings of tbe inferior courts. N. C. Constitution, Art. IV, Sec. 8; *S. v. Cochran,*230 N.C. 523, 53 S.E. 2d 663. Tbis Court bas exercised tbis power very sparingly, and rightly so.

Under tbe facts of tbis ease, we are of opinion, and so bold, that to sustain tbis trial below would be a manifest injustice to tbe defendant’s right to a fair and impartial trial. Acting under tbe supervisory power granted to us by tbe State Constitution, a new trial is ordered to the end that tbe defendant may be tried before another jury, where passion and prejudice and facts not in evidence may have no part.

New trial.

Bobbitt, J.,

dissenting: The State’s evidence consisted of tbe testimony of a State Highway Patrolman, a deputy sheriff and tbe sheriff. Tbe patrolman and the deputy sheriff observed tbe defendant while be was driving and when be was arrested and taken to jail. Tbe sheriff observed him later when be was released from jail after furnishing bond. All were of tbe opinion that be was under tbe influence of some intoxicant.

Tbe testimony of tbe State’s witnesses, if accepted as worthy of belief, was fully sufficient to support a conviction. Tbe testimony of the defendant, and of one of tbe two ladies riding with him on tbe occasion of bis arrest, if accepted as credible, exonerated tbe defendant. It was a case for tbe jury. Tbe defendant does not contend otherwise.

Upon tbe jury’s return of a verdict of guilty, tbe defendant moved that tbe verdict be set aside on tbe ground “that the argument of tbe Solicitor was prejudicial.” Tbe exceptive assignments of error are to tbe refusal of tbe trial judge to set aside tbe verdict and to tbe judgment pronounced, namely, that tbe defendant pay a fine of $100.00 and tbe costs.

To appreciate tbe evidential background for tbe solicitor’s address to tbe jury, the following portions of tbe evidence should be noted.

All tbe evidence tended to show that tbe defendant was operating a Lincoln car. A State’s witness identified tbe ear as a 1954 four-door *637Lincoln. Tbe defendant’s testimony was that be bad purchased it tbe previous week, that it bad automatic, power steering, and tbat be was unfamiliar witb it. He further testified tbat be traveled out of Ealeigh, covering seven southern states and driving about four thousand miles a month.

Tbe State’s evidence tended to show tbat tbe defendant stated on tbe occasion of bis arrest tbat be bad recently been transferred from Texas to Ealeigh. Tbe State’s evidence also tended to show tbat defendant’s car bore a North Carolina license tag and tbat defendant bad and produced a Texas operator’s license.

Tbe defendant explained tbe State’s evidence to tbe effect tbat be failed to dim bis bright lights when tbe approaching patrol car’s lights were blinked several times, by bis testimony tbat tbe car be bad been driving was equipped witb automatic dimmers and tbat be “could have forgotten” tbe fact tbat it was necessary to press a button to dim tbe bright lights on bis recently acquired Lincoln car.

The defendant explained tbe State’s evidence to tbe effect tbat be was operating bis car back and forth from tbe edge of the pavement to a foot or so across tbe center line, by bis testimony as follows: “Tbe type of road I came down witb respect to curves and tbe type of road, seems like it’s all hair-pin curves and up and down bill and very narrow. As I said, I drive about four thousand miles a month and have never seen one like tbe one out here for tbe next ten miles.”

All tbe evidence tends to show tbat there was a pint of ABO whiskey in defendant’s car, tbe seal unbroken.

Defendant’s testimony tended to show tbat be and tbe two ladies were driving from Ealeigh to Eeidsville, where they were to meet a man from bis company arriving by train from Lynchburg; tbat be bad drunk no whiskey; tbat be bad a bottle of beer at a drive-in as they left Ealeigh; and tbat farther along tbe way be stopped again and bad a cheese sandwich and another bottle of beer.

In tbe record, under tbe caption, “Prosecutor’s Summation To Jury,” there are six numbered paragraphs, each setting forth an excerpt from tbe solicitor’s address to tbe jury. While tbe record imports verity, attention is called to tbe fact tbat tbe prosecutor’s summation is not given in its entirety and so does not disclose tbe context of tbe solicitor’s challenged remarks. It seems only fair to infer tbat these remarks were in some degree if not wholly in reply to tbe preceding (undisclosed to us) arguments by defense counsel.

An advocate, in addressing tbe jury, has tbe right, and indeed it is bis function, to analyze tbe evidence and present every inference and every deduction tending to support bis contention as to tbe facts established thereby. Where, as here, the testimony of the State’s witnesses *638and that of the defense witnesses cannot be reconciled because in direct conflict, so that tbe jury’s task is largely one of determining the credibility or non-credibility of each witness, the advocate’s rightful sphere of argument includes his contention as to each circumstance relevant to such determination reasonably arising from a consideration of the evidence before the jury.

While many, if not all, of the solicitor’s challenged remarks have their roots in evidence before the court, I agree that the detached excerpts set forth in the record are objectionable as an appeal to prejudice in their emphasis upon the fact that the defendant was a stranger in the community and in the contention that he was a man of means.

But when an improper argument is being made, the rule is that counsel must object so that the presiding judge can call a halt to the continuance thereof. There are at least two underlying reasons for this well-established rule. First, there can be no question *then*as to the content and context of the objectionable statements. Second, the presiding judge, *then and there,*can stop such argument and promptly instruct the jury to disregard it and, *equally important,*caution and instruct the advocate to pursue the argument no further.

An unfair argument may and frequently does cause a jury to react unfavorably to the advocate’s cause. Of course, the trial judge may take the initiative, if he hears the argument and considers it a manifest abuse of privilege, by then intervening and instructing the jury and the advocate with reference thereto. But ordinarily the trial judge will leave it to counsel for the opposing litigant to determine whether he desires that the court intervene or whether he prefers to rely upon the good sense and judgment of the jury either to disregard it entirely as irrelevant or to reject it as unfair.

Here, the defendant was represented by a trial attorney of long experience. He did not see fit to object *at any time*during the solicitor’s argument. The first objection was made after verdict.

Although defense counsel interposed no objection, the presiding judge, in his charge to the jury, gave the instructions set out below.

Near the first of his charge, this instruction was given:

> “You are not concerned about what kind of car a man drives; the fact that a man drives a Lincoln automobile does not deprive him of the same rights and privileges of a man driving a Ford; and, the fact that a man drives a Ford, does not deprive him of the same rights and privileges of a man driving a Lincoln automobile. You are not to be concerned about, and I’m sure that you will not even consider what kind of a car the defendant was driving. The only question is: Has the State satisfied you from the testimony and beyond a reasonable doubt of his guilt ? If so, it is your duty to convict him; if not, it is equally your duty to acquit him.”

*639In concluding bis charge, these instructions were given :

> “It all revolves itself into purely a question of fact for you to determine, you being the sole triers of the facts. It is your duty to give a gentleman not living in this county and coming into the State from Texas to live the same fair, just, and impartial trial that you would expect for yourselves or some member of your family if tried here or in another county — to be treated as fairly as anybody else without regard to where he came from or regard to his property or lack of property; the only thing you are concerned about is to find the truth and speak the truth and let it please whom it will.

> “If you find beyond a reasonable doubt that the defendant was under the influence of liquor at the time he was arrested by the State Highway Patrolman, Mr. Norwood, and that he was operating his automobile at that time, it is your duty to find him guilty. If you have a reasonable doubt about it, give him the benefit of that doubt and find him not guilty.”

In my opinion, the quoted instructions were entirely satisfactory. Defense counsel evidently thought so for he made no request for additional instructions. Had he done so, the trial judge could have instructed the jury further relative to features to which attention was directed. Moreover, no exception to the sufficiency of these instructions was taken and error is not assigned on account of any insufficiency thereof.

It is pointed out in the opinion of the Court that the trial judge did not at any time tell the jury to disregard the challenged excerpts from the solicitor’s address to the jury. In my view, it was better to instruct the jury as was done, directing attention to the single issue for decision and instructing the jury that whether the man was from Texas or North Carolina or a man of means or one without means should have no part in their decision. I think the trial judge handled the matter in excellent manner. The alternative would have been a repetition of the objectionable statements and contentions of the solicitor coupled with an instruction that they were improper and therefore should be disregarded by the jury in its deliberations. The repetition of the objectionable excerpts for the purpose of eliminating them from consideration might well have emphasized rather than eliminated the prejudicial effect, if any, they may have had.

Except in capital cases, under the rule established in *S. v. Tyson,*133 N.C. 692, 45 S.E. 838, which overruled earlier eases in conflict therewith, a defendant, when represented by counsel, cannot sit by, interpose no objection or motion for mistrial, take his chances with the jury, and then, after verdict, complain for the first time that portions of the solicitor’s argument constituted a prejudicial abuse of privilege for which he is entitled to a new trial.

*640'With, the law as stated in the opinion of the Court, I am in accord. Further, I do not question the authority of this Court, in the exercise of its general supervisory jurisdiction over trials in the Superior Court, to award a new trial when manifest injustice has been done even though settled rules of law as established by the decisions of this Court must be set aside in order to do so. The basis of my dissent is my opinion that this record does not present a situation that justifies the exercise of such authority.

Justice is always the goal. Yet experience has demonstrated that we can best approximate the ideal by the observance of orderly procedure.

My apprehension is that counsel, instead of being alert to objeet in apt time as required under our decisions, will deem it prudent to remain silent when an alleged prejudicial argument is beng made, take their chances with the jury then impaneled; and then, after conviction, bring before us the solicitor’s address to the jury or excerpts therefrom for close inspection against an ideal standard in the hope that we will in such case see fit to exercise the general supervisory powers of this Court by awarding a new trial on the basis of an alleged abuse of privilege that could have been fully and effectively corrected if objection had been interposed in apt time.

When the trial judge was considering defendant’s motion to set aside the verdict, the record shows the following remarks :

> “Oouet: I’m 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’s a question of fact.”

If this can be fairly interpreted as a statement by the trial judge that the defendant was a man of means, the complete answer is that this remark, made *after verdict,*could have had no effect on the jury’s deliberations.

For the reasons stated, I vote to affirm.

JOHNSON, J., concurs in dissent.

Higgins, J.,

concurring in dissent: Conceding the remarks of the solicitor were improper and prejudicial, yet, under the decisions of this Court in similar cases, I think the objection after verdict came too late. For that reason, I concur in the dissenting opinion of *Jusiice Bobbitt.*