#### STATE v. OLLIE BEAN.

(Filed 16 December, 1936.)

Criminal Law § 50 — Interrogatories by court addressed to defendant testifying in his own behalf held for error as expression of opinion on evidence.

Defendant, charged with homicide, testified as to his version of the fatal killing upon his contention of self-defense, and narrated the actions of himself, his oldest son, and the deceased. Upon the conclusion of his testimony the court, by interrogation objected to by defendant’s counsel, brought out the fact that the son was seventeen years old, and was present in the courtroom. In his charge the court set forth the contention of the State that defendant’s testimony could not be relied upon because uncorroborated, notwithstanding the fact'that defendant’s oldest son, who saw what happened, was present in the courtroom. *Held:*Although the prosecuting attorney might impeach defendant’s testimony by developing the fact that defendant’s son was not called as a witness to corroborate defendant’s testimony, the interrogatories by the court to the same effect, emphasized by the statement of the State’s contentions, constitute reversible error, the statute, O. S-, 564, inhibiting an expression or showing of opinion by the court as to whether a fact is fully or sufficiently proven by interrogation as well as by statement or action.

Appeal by defendant from *Phillips, J.,*at May Term, 1936, of Mooee.

New trial.

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

*J. H. Scott and W. R. Clegg for defendant, appellant.*

ScheNCK, J.

This is an appeal from a judgment of imprisonment upon a conviction of manslaughter.

The State’s evidence tended to show that the defendant shot and killed the deceased near the home of the defendant, and that the defendant told the witness, Mrs. Adeline McNeill, that “Andrew (the deceased) didn’t see me and there wasn’t a word spoke — said Edward (son of the defendant) had been out to the chicken house and told him (defendant) that he (deceased) was coming with a gun and he (defendant) went in the kitchen and cracked the door open, and when he (deceased) got even with the well he downed him (deceased), and he fell like a beef shot, and there wasn’t a word spoken and Andrew (the deceased) didn’t see him (defendant) when he shot.”

The defendant admitted that he fired the fatal shot, and .relied principally upon his own testimony to establish his plea of self-defense. The defendant testified that about 3 :30 o’clock in’the afternoon of 31 Decern-*60ber, 1935, Andrew Comer, tbe deceased, came to bis borne and cursed and abused tbe defendant, and that about 7:00 o’clock of tbe same day bis oldest boy bad been out to tbe cbieken coop and be (defendant) went into tbe cook room and “saw Mr. Comer coming before be got to tbe wagon shelter and be stopped there and viewed tbe bouse I guess for a couple of minutes. I was in tbe door with no light in tbe room; tbe light was in tbe other part of tbe bouse and so be come up tbe path where we bad drug tbe snow off, right by tbe steps, and placed himself under tbe well shelter, or tbe shadow of it. . . . It was a very bright moon-shining night and I could see Mr. Comer as be approached tbe bouse, and be was carrying that gun there. Comer bailed me, ‘Hey, come out!’ I recognized bis voice; it was Andrew Comer’s voice. When I spoke, I says, ‘Hey!’ And when I spoke be riz with bis gun stooped over like this. He was standing behind tbe well, and I saw bis gun, and I shot him. I shot him when be was raising tbe gun and pointing it right towards me. He could see me from where be was and I could see him from where I was.

> “After I shot be fell and I stood there for about two minutes, then-1 went out to where be was and be was breathing; wasn’t any further down than bis throat. I went back in tbe bouse and sent my boys after a doctor and tbe law.”

Tbe following appears in tbe record:

> “By tbe court: How old is your oldest boy ?

> “A. Seventeen years old in September.

> “Q. Is be here?

> “A. Yes, sir.

> “To tbe foregoing questions and answers tbe defendant objects; objection overruled; defendant excepted.”

His Honor charged tbe jury that “Tbe State insists and contends, gentlemen of tbe jury, that there were iDeople there who knew about tbe facts; that there was a 17-year-old boy who tbe defendant himself says knew all about tbe circumstances; that be was tbe one who notified tbe defendant that tbe deceased was coming; that be was tbe one who notified him that tbe deceased bad a shotgun; that be was tbe one who notified him of tbe deceased’s approach, and that be was here in tbe courtroom in your presence and was not called by tbe defendant to testify as to these material facts when tbe burden of proof was upon him.”

The exception must be sustained, as the questions propounded by the court to the defendant clearly bad the effect of impeaching bis testimony as a witness in bis own behalf, and were, therefore, in violation of C. S., 564. *S. v. Winckler,*210 N. C., 556, and cases there cited. That these questions bad this effect is emphasized by the fact that the court in the charge set forth as a contention of the State that the testimony of the *61defendant could not be relied upon because it was uncorroborated, notwithstanding the fact that the oldest boy of the defendant, who saw what happened, was present in the courtroom, and was not called to testify.

The failure of the defendant to avail himself of the opportunity to place bis son upon the stand in corroboration of bis own testimony was a fact proper for the prosecuting attorney to- develop, since partisan counsel are permitted to impeach the testimony of any adverse witness, but this right to impeach a witness does not extend to the trial judge, who is inhibited by the statute from giving “an opinion whether a fact is fully or sufficiently proven,” and this inhibition is against expressing Or showing such an opinion by interrogation, as well as by statement or action.

For tbe error assigned, tbe defendant is entitled to a

New trial.