#### STATE v. ELGIE WAGSTAFF.

(Filed 1 February, 1952.)

1. Constitutional Law § 34(1—

. Ordinarily, in offenses less than capital, the presiding judge is not required to assign counsel to represent defendant, but where an inexperienced youth is charged with a serious felony it is proper for the court to assign counsel for him, and failure to do so may be held for error. Here the trial judge’s explanation to the jury of the absence of counsel may have left the impression that this was due to defendant’s stubbornness and resentfulness.

2. Contempt of Court § 2a—

The trial judge has power to order anyone, either witness or spectator, into custody for what the court finds is a contempt committed in his presence.

3. Same: Criminal Law § 50d — Ordering of defendant’s father into custody in presence of jury held prejudicial under facts of this case.

Defendant’s father, following some conversation with the judge, was ordered to sit down, and upon a second protest that the case should be continued and counsel obtained for the defendant saying “he was not getting a fair trial,” in the presence of the jury the father was ordered into custody and removed from the court room. It also appeared on cross-examination that previously defendant had had an altercation with his father. *HelcL:*Under the facts and circumstances of this case, the deprivation of defendant of the aid and advice of his father, the only person present who could explain the previous altercation between them, must be held for error as prejudicing defendant in the eyes of the jury, there being nothing in the record to indicate that the conduct of defendant’s father was engaged in for the purpose of causing a mistrial.

4. Constitutional Law § 34a—

A person charged with crime is entitled to a fair trial before an unprejudiced jury in an atmosphere of judicial calm, and the responsibility rests upon the trial judge to preserve that right.

5. Criminal Law § 78c—

Where a youthful, inexperienced defendant is not represented by counsel, the State properly makes no point as to the time, manner, or form of an exception presenting defendant’s contention that an incident during the trial unduly prejudiced him in the eyes of the jury.

*70Appeal by defendant from *Frizzelle, J.,*April Term, 1951, of PeesoN. New trial.

Tbe defendant was indicted for assault witb intent to kill in violation of G.S. 14-32.

Tbe State’s witness L. J. Martin, tbe operator of a filling station and store, testified tbat on tbe occasion alleged be bad an altercation witb defendant in tbe course of wbicb tbe witness bad drawn bis pistol and ordered tbe defendant off bis premises; tbat thereafter while witness was putting gasoline in a truck tbe defendant seized him from behind, wrested tbe pistol from him, struck him on tbe bead witb it, inflicting a scalp wound requiring five stitches, and threw him on tbe ground and kicked him, causing a fracture of a bone in bis hip, declaring be was going to kill him. He was taken to a hospital and after two months was still unable to sit up straight.

On tbe other band, tbe defendant testified tbat Mr. Martin pointed bis pistol at him and threatened to kill him; tbat be twisted bis arm to prevent him from shooting and tbe pistol was discharged, burning defendant’s coat; tbat Mr. Martin seized bis arm and tried to pull him down, and be struck him on tbe bead to get loose.

There was verdict of guilty as charged. From judgment imposing sentence of not less than eight nor more than ten years defendant appealed.

*Attorney-General McMullan and Assistant Attorney-General Moody for the State.*

*D. Emerson Scarborough for defendant, appellant.*

DeviN, O. J.

Tbe defendant, a Negro 19 years of age, was without counsel at tbe trial below. He was a resident of an adjoining county and at tbe time of tbe offense charged was a .soldier in tbe United States Army. There was no motion for judgment of nonsuit and tbe evidence was sufficient to carry the case to tbe jury.

Tbe defendant, however, challenges tbe validity of tbe result below chiefly on tbe ground tbat an incident wbicb occurred during tbe trial prejudiced him before tbe jury, and improperly influenced tbe adverse verdict and consequent judgment.

Tbe facts in connection witb tbe incident referred to and upon wbicb tbe defendant bases bis assignment of error are set out in tbe record. It seems tbat in tbe seating arrangement of tbe courtroom, Negroes customarily sat in tbe gallery unless they were parties or witnesses. During tbe examination of tbe State’s witness Martin, tbe father of tbe defendant who bad been seated in tbe gallery came down into tbe bar and approached tbe bench, and had some conversation witb the Judge as to tbe trial of tbe case. What was said does not appear, but tbe Judge ordered *71bim to sit down. He took a seat beside tbe defendant, but later be again approached tbe Judge and protested to bim that tbe case should be continued so that be could get a lawyer for bis son, “that be was not getting a fair trial, or words to that effect.” Tbe record states “whereupon tbe Judge in the presence of tbe jury ordered tbe defendant’s father into tbe custody of tbe sheriff, and be was taken upstairs and locked in tbe jail and remained there during tbe remainder of tbe trial.”

Tbe defendant testified be bad never before been arrested for anything. During bis cross-examination be said bis father on some occasion not explained bad shot bim but be did not know why. Tbe State offered evidence that defendant’s general reputation was bad. Tbe sheriff further testified that when defendant was put iii jail be told bim if be wanted to see a lawyer be would get one, and any witnesses be wished. Defendant gave bim names of four witnesses, but said tbe Army would see about a lawyer for bim; that defendant’s father and brothers were notified, but tbe sheriff said “They did not seem to care much about it, and tbe father (who bad just been released from hospital) did not care enough to go to see bim.” When tbe defendant closed bisecase tbe court inquired if there were any witnesses subpoenaed for tbe defendant. Tbe Solicitor stated one Fuller, and Frank Smith for whom subpoenas bad been issued could not be found. Frank Smith was called out. Tbe court inquired what defendant wished to show by Frank Smith, and tbe defendant said Smith was present at tbe time of tbe difficulty, but be didn’t know what be would testify to if be were present.

Tbe defendant noted exception to the following statement by tbe court in closing bis charge to tbe jury: “I will call tbe jury’s attention to tbe fact that while tbe defendant is not represented by counsel in this case, evidence in this case tends to show that several times last week and several times today after tbe case was called, opportunity was afforded tbe defendant to engage counsel and to avail himself of tbe testimony of any person whom be might desire to have subpoenaed.”

While ordinarily in criminal actions less than capital tbe presiding judge is not required to assign counsel to represent tbe defendant *(State v. Hedgebeth,*228 N.C. 259, 45 S.E. 2d 563; *Uveges v. Pennsylvania,*335 U.S. 437), in view of tbe youth and inexperience of tbe defendant in this case charged with a serious felony it would seem tbe court should have gone further than afford bim opportunity to employ counsel and have assigned counsel to represent bim. ' Tbe defendant also assigns error in that tbe court’s final words" to tbe jury, in explanation of tbe absence of counsel, tended rather to bold tbe defendant up to tbe jury as stubborn and resentful, and not meriting consideration for bis defense which ordinarily would have been accorded to uncounseled youth.

Unquestionably it is within tbe power of tbe presiding judge to order anyone, either witness or spectator, into custody for what tbe court finds *72is a contempt committed in his presence. *State v. Slagle,*182 N.C. 894, 109 S.E. 844; *State v. McNeill,*231 N.C. 666, 58 S.E. 2d 366; *State v. Simpson,*233 N.C. 438, 64 S.E. 2d 568; *State v. Kirkman,*234 N.C. 670. But when this is done in the immediate presence of the jury in a criminal action, whether it is to be regarded as prejudicial to the defendant depends upon the circumstances of the case. While neither the language nor the manner of the defendant’s father in the instant case is set out in the record, no question is raised so far as defendant’s father is concerned as to the propriety of the action of the judge in ordering him into custody, but the point is made that this tended to. reflect discredit on the son charged with a serious crime of violence, and also to deprive him of the presence and aid of one who might have been both an adviser and a material witness as to some phases of the case. True, the able and careful judge who presided over the trial of this case was doubtless at the time unaware that defendant’s case would be improperly discredited by the court’s action, but looking at it in the cold light of the record we perceive that harm could and probably did result to the defendant in the trial of his case. The arrest and removal of his father tended to disparage the defendant in the eyes of the jury in a case in which he was charged with a felonious assault, and deprived him of the aid and advice of his father, the only one present who could refute or explain the suggestion of previous violent conduct on the part of father and son. The jurors presumably saw what took place in their immediate presence and observed the action of the court with respect to defendant’s father. *State v. McNeill, supra; State v. Simpson, supra.*What impression the incident made on their minds does not appear, but the defendant urges it must have been harmful to him.

Numerous instances have come to the attention of the Court where persons connected with the trial have been ordered into custody. In the *McNeill case, supra,*a new trial was awarded because the judge ordered defendant’s witness into custody on his leaving the stand in the presence of the jury. In the *Simpson case, supra,*two of defendant’s witnesses during noon recess of court were ordered arrested. Some of the jurors were present at the time, and when court resumed session the witnesses were brought in in custody. A new trial was awarded. In *State v. Slagle, supra,*a codefendant in an indictment for murder had been discharged. Later during court session this person was ordered arrested for violation of the prohibition law, but this was held under the circumstances not prejudicial.

It is the well settled rule in this jurisdiction that a person charged with crime is entitled to a fair trial before an unprejudiced jury “in an atmosphere of judicial calm,” and that the responsibility rests upon the trial judge to preserve this right. *Stale v. Carter,*233 N.C. 581, 65 S.E. 2d 9.

*73The defendant’s exception on the ground of harmful effect on the jury of the court’s action in ordering the arrest and removal of defendant’s father would have been more aptly presented by a motion at the time for a mistrial and continuance, but in view of the defendant’s inexperience in court procedure and absence of counsel the State properly makes no point as to the time, manner or form of the exception.

There is nothing in the record to indicate that the conduct of defendant’s father, which the court found contemptuous, was engaged in for the purpose of causing a mistrial. In *Dennis v. U.S.,*183 F. (2) 201 (226), *Judge Hand,*speaking for the Court, reviewed the conduct of the trial of persons charged with conspiracy to advocate overthrow of the government of the United States. The opinion sets forth the improper conduct of attorneys for the defendants, apparently in effort to cause a mistrial, and the constant bickering between counsel and the trial judge, and the latter’s warning that they would be punished for contempt. It was said, “throughout, the Judge kept repeating to the jury that they were not to take what he said to the attorneys against their clients.” Under the circumstances set out in the opinion in that case the result of the trial was upheld. The decision of the Circuit Court of Appeals was affirmed by the Supreme Court of the United States in *Dennis v. U. S.,*341 U.S. 494. See also Hyatt on Trials, sec. 1065.

After a careful consideration of the case as presented by the record before us, we reach the conclusion that the defendant should be awarded a new trial, and it is so ordered.

Other exceptions noted by the defendant and brought forward in his assignments of error are not discussed or considered as they may not arise on another hearing.

New trial.