#### D. J. McDONALD v. MacARTHUR BROS. COMPANY.

(Filed 14 December, 1910.)

Appeal and Error — Courts—Expression of Opinion — Interpretation of Statutes.

In this case the judge in charging the jury said, “I am not sure, and I frankly confess that I am not sure, that I understand fully the claim upon which the plaintiff bases the eleven thousand and some odd dollars”: Held,, this was not an expression of opinion prohibited by Revisal, 535, it not appearing that the expressions used were pertinent to the issue, or were prejudicial' to appellant, or corroborative of an alleged error based upon his admitted ignorance, or failure to comprehend plaintiff’s claim, upon which the law was incorrectly charged.

Walkeb, J., dissenting.

Appeal by plaintiff from G. W. Ward, J., at the May Special Term, 1910, of McDowell.

The facts are sufficiently stated in the opinion of Mr. Chief Justice Clark.

McCormick, Henson & Brown, Pless & Winb'orne for plaintiff.

Hudgins, Watson & Johnson, Justice & Broadhurst for defendant.

Claek, C. L.

The plaintiff rests his appeal upon one exception. In charging the jury his Honor used this language: “I am not sure, and I frankly confess that I am not sure, that I understand fully the claim upon which the plaintiff bases the eleven thousand and some odd dollars.” The plaintiff contends that this is an expression of opinion by the judge upon the facts, which was forbidden by the act of 1796, ch. 452, now Rev., 535. That statute provides: “No judge in giving a charge to the petty jury, either in a civil or criminal action, shdll give an opinion whether a fact is fully or sufficiently proved, such matter being the true office and province of the jury.”

The remark of his Honor was an expression of diffidence, and so far from intimating an opinion to the jury that any fact was or was not proven, it meant that he did not know whether *12it bad been proven or not. If tbe plaintiff bad ground to allege that tbe judge bad not charged tbe law correctly, this remark might be some corroboration of tbe alleged error based upon tbe judge’s admitted ignorance, or failure to comprehend tbe plaintiff’s claim. But it is certainly not an expression by tbe judge that any fact or facts bad or bad not been fully proven.

The plaintiff particularly relies upon Powell v. R. R., 68 N. C., 395. In that case tbe judge said: “We bave not been informed that tbe inspector was competent, etc.” Tbe Court on appeal justly observed that when a judge tells a jury, “We are not informed” of a fact upon which tbe jury must pass, “be can only mean that there is no evidence of that fact.” That case is certainly not in point here. Tbe judge does not say that be is not informed, that there is no evidence, but merely expresses a doubt whether be himself fully comprehends it. If bis charge showed that be did not fully comprehend it and made an error of law in bis instructions to tbe jury, against tbe plaintiff, in consequence, such error would be ground for exception; but tbe plaintiff made no such exception.

Tbe prohibition in our statute against tbe judge’s expressing an opinion upon tbe facts, in bis charge to tbe jury, did not exist at common law, nor does it obtain in England or in tbe Federal Court, and indeed bas been enacted in very few of tbe States of this Union. In tbis State, we bave always held that tbe prohibition applies only to an expression of an opinion as to those facts which are pertinent to tbe issues to be decided by tbe jury, and tbe appellant must show that tbe remark was prejudicial to him. It does not appear here that tbe remark of tbe judge was an expression of an opinion whether any facts were or were not proven, nor that tbe remark was prejudicial. It is very usual for tbe judge in reciting tbe testimony to tell the jury that, notwithstanding bis recital, tbe jury must take their dwn recollection of tbe evidence. His Honor evidently meant something of that kind here. Certainly, bis expression of diffidence and modesty should not be counted unto him for bias or unrighteousness.

No error.

Walker, J., dissenting.