#### STATE v. ODELL OAKLEY.

(Filed 15 June, 1936.)

1. Burglary O cl — Evidence held sufficient for jury on issue of defendant’s guilt of burglary in the first degree.

Evidence that the house of the prosecuting witness was broken into by twisting the knob off the locked door and forcing the door open, that the time was late at night, and that the prosecuting witness and his wife were asleep in the room entered, together with evidence that tracks in the freshly fallen snow were followed and led to defendant’s room in another house in a distant' part of the city, where defendant was apprehended, is held sufficient to be submitted to the jury on the question of defendant’s guilt of burglary in the first degree. N. O. Code, 4232.

2. Criminal Law I c — New trial is awarded in this case for inadvertent expression of opinion by trial court upon the evidence.

In order to establish the identity of defendant as the perpetrator of the crime in this prosecution for burglary in the first degree, the State relied upon testimony that tracks at the scene of the crime were followed in the newly fallen snow to the room of defendant, where he was apprehended. The officer who followed the tracks did not measure them or compare them with defendant’s shoes. While the officer was testifying regarding the tracks, the court asked the witness: “You tracked the defendant to whose house?” Held: Defendant is entitled to a new trial for the inadvertent expression of opinion by the court that the State had proven the tracks to be those of defendant, and the fact that the court immediately thereafter stated he did not mean to say “defendant,” and asked the witness to whose house he followed “a set of tracks,” does not cure the error, since the statement might have made a lasting impression on the jury to defendant’s prejudice, and since the State’s evidence was circumstantial and defendant was on trial for his life. The power of the court to withdraw incompetent evidence and instruct the jury not to consider it, distinguished. C. S., 564.

Sohenok, J., concurs in result.

Appeal from Clement, J., and a jury, at January Term, 1936, of EockiN&iiam.

New trial.

Tbe defendant was tried on tbe following bill of indictment:

“State oe North CaroliNA — EockiNgham OouNty.

SUPERIOR Court, JaNuary Term, 1936.

“Tbe jurors for tbe State upon their oath present, That Odell Oakley, late of tbe county of Eockingbam, on 29 December, 1935, about tbe hour of 12 in tbe night of tbe same day, with force and arms, at and in tbe county aforesaid, tbe dwelling bouse of one B. E. Sprinkle, there situate, and then and there actually occupied by one B. F. Sprinkle, *207feloniously and burglariously did break and enter, witb intent, tbe goods and ebattels of tbe said B. F. Sprinkle in tbe said dwelling bouse then and there being, then and there feloniously and burglariously to steal, take and carry away, against tbe peace and dignity of tbe State. .

GwyN, Solicitor

Tbe jury returned a verdict “That tbe said Odell Oakley is guilty of burglary in tbe first degree in manner and form as charged in tbe bill of indictment.” Judgment of death was pronounced.

B. F. Sprinkle, a witness for tbe State, testified, in part: “I live in Eeidsville, on Main Street, at tbe corner of Harrison Street. On 29 December, 1935, my bouse was broken into. There is a screen door and a locked door. Tbe knob was twisted off of tbe inside door, which was locked. Then tbe door was forced open. Tbe screen door opens on tbe outside and tbe other door opens from tbe inside. On tbe night of tbe 29th Mrs. Sprinkle and I were occupying tbe bouse alone. Tbe breaking was done about 2 o’clock in tbe morning. I was sound asleep. Mrs. Sprinkle and I occupy twin beds. She sleeps witb her bead one way and I sleep witb mine another. My bead was next to tbe inside door, which comes out of tbe sun parlor into our bedroom. I was awakened by my wife’s calling me. She said somebody was in our room and to get tbe gun. I beard him go out. When I awakened, it was snowing. It was snowing when tbe breaking occurred. In my opinion, when I woke up tbe snow was three inches deep. I called tbe police and Mr. Saunders and another gentleman came up there. I suppose it was fifteen or twenty minutes before Mr. Saunders came. He went right out and went on tbe track. No instrument was used in tbe breaking. Tbe door was a little bit small for tbe frame and tbe lock didn’t catch in too deep. Tbe door knob was twisted off and tbe door shoved. Tbe lock never did give, but tbe shove forced it open. Tbe last thing Mrs. Sprinkle did before she went to bed was to lock that door. We went to bed at 9 or 10 o’clock and bad been in bed four or five hours. I beard somebody go out of tbe door but I never did see who it was and don’t know whether it was a man or woman. Nothing at all was taken. There were tracks on tbe doorstep, but I didn’t measure them and I never went out of tbe bouse. Tbe tracks on tbe steps looked like men’s tracks. I pointed them out to Mr. Saunders.”

Mrs. B. F. Sprinkle testified, in part: “When tbe noise woke me, I saw a man standing right inside tbe bedroom right at Mr. Sprinkle’s bead. I took a good look at him. He was apparently just standing up in tbe room. It was a man, bad on a man’s coat. It looked as if be were wearing a dark brown suit. I called Mr. Sprinkle three or four times before I could wake him and then be ran out tbe same door be *208came in, through the sun parlor. Mr. Sprinkle called the police and Mr. Saunders came up. Mr. Saunders tracked the man. There was snow on the ground when I woke up. I saw Odell Oakley at the preliminary trial. That night I described to Mr. Saunders the man’s appearance. Odell Oakley looks very much like the man I saw. In my opinion, he is the man. This breaking was Sunday morning. At the time I first saw Odell Oakley, I did not tell the officers that in my opinion he was the man. I only said he was a tall, slender boy. ... At the preliminary trial I did not attempt to identify this boy as the man who was in my home.”

J. T. Saunders testified, in part: “I am the officer who was on duty in the city of Reidsville the night of 29 December. It started snowing that night about 11 o’clock. By 2 o’clock the snow was about three inches deep. About 2 o’clock Mr. Sprinkle called me and another officer, Mr. Cobb, drove me up there. Mr. Cobb did not stay. I found a broken door, but didn’t take time to examine it. Mr. and Mrs. Sprinkle pointed out to me tracks on the south side of the house on the step. Those tracks were a man’s tracks and I followed .them through town to Joe Martin’s-home, for about a mile and a half. I saw one other track on Lindsey Street going in the opposite direction. I saw the person who made that track. It was John Sommers, a white boy, and I spoke to him. Those two tracks did not get mixed up. They crossed, one man coming down on one side the street and the other the other, but they crossed and then they went on the opposite side the street. (The Court) They made by whom? Ans. r John Sommers and Odell Oakley. (Mr. Garrett) I object. (The Court) Well, you could not say. Don’t consider, gentlemen, that he said the tracks made by Sommers and Oakley. You tracked the defendant to whose house? Ans.: Joe Martin’s. (Mr. Garrett) You said the defendant. (The Court) I didn’t mean to say the defendant; he followed a set of tracks to whose house ? Ans.: Joe Martin’s.” To the foregoing questions and comments by his Honor the defendant objected, as being an expression of opinion. Exception. The witness continued: “When I got to Joe Martin’s house there were no other tracks leading in to the house and there were no tracks leading away from the house. I saw no other tracks of any kind. This track went up in front of the house and went to the back and came back and up the front steps and right up the steps on the inside, leading into this room. I tracked the snow into the house. I followed the tracks right around the side of the house to the back and then he came back to the front, up the front steps on to the porch and went inside and up the stairway and into the first door after he got to the top of the stairway. . . . The tracks in the snow compared exactly with the defendant’s shoes. There was no place where I followed those tracks *209from Mr. Sprinkle’s to the place where I found this man, where the tracks led off and away from any snow. I did not measure the tracks which I saw with this boy’s shoes. I am just guessing. I did not ask for Joe Martin or try to arrest him. I didn’t go there to arrest Joe Martin. I wanted to find the shoes that made that track. I do not know what kind of shoes Joe Martin wore. ... I did not at any time measure Odell Oakley’s tracks with those tracks in the snow. I trailed the man for a mile and a half, across streets, up streets with sidewalks and across and back across the street. I tracked him to five different homes, went on the porch of two of those homes and up to the windows of three and back out to the streets and down the streets. . . . All of these tracks were not exactly alike. The man didn’t walk exactly straight and sometimes he would drag his feet a little. He walked sorter sideways. And when he walked sideways that threw some snow in the track.”

The defendant denied that he was in the Sprinkle home, and said he left Allen Neal’s barber shop about 11:00 o’clock and went to Joe Martin’s home, where he was living. That he had been in bed about four hours when the officer came and woke him up. He was corroborated by Allen Neal and Jerome Bailey as to his leaving the shoj) about 11:30. On cross-examination he stated: “From 1924 to the present time they have had me in court ten or eleven times upon serious charges with terms ranging from three months to six years. They caught me every time I ever stole anything. During the last ten years I have visited from one city to the other.” He told of the different offenses, where committed, and the time.

The defendant made many exceptions and assignments of error, and appealed to the Supreme Court. The only material ones will be considered in the opinion.

Attorney-General Sea-well and Assistant Attorney-General McMullcm for the State.

Glande S. Scurry, Joe W. Garrett, and Sharp & Sharp for defendant.

Clarkson, J.

At the close of the State’s evidence, and at the close of all the evidence, the defendant made motions in the court below for judgment of nonsuit. N. 0. Code, 1935 (Michie), sec. 4643. The court below overruled these motions, and in this we can see no error.

N. O. Code, supra, sec. 4232, is as follows: “There shall be two degrees in the crime of burglary as defined at the common law. If the crime be committed in a dwelling house, or in a room used as a sleeping apartment in any building, and any person is in the actual occupation of any part of said dwelling house or sleeping apartment at the time of the *210commission of such crime, it shall be burglary in the first degree. If such crime be committed in a dwelling house or sleeping apartment not actually occupied by any one at the time of the commission of the crime, or if it be committed in any house within the curtilage of a dwelling house, or in any building not a dwelling house but in which is a room used as a sleeping apartment and not actually occupied as such at the time of the commission of the crime, it shall be burglary in the second degree.”

Section 4233 : “Any person convicted, according to due course of law, of the crime of burglary in the first degree shall suffer death, and any one so convicted of burglary in the second degree shall suffer imprisonment in the State’s Prison for life, or for a term of years, in the discretion of the court.”

The evidence in the present case is circumstantial, although sufficient to be submitted to a jury. We consider the only material exception and assignment of error which has merit: The officer never measured or compared any of the tracks be followed and never measured or compared the shoes of the defendant with the tracks be followed. During the testimony of the officer who followed tracks, be testified that the tracks be was following crossed tracks made by John Sommers. Then it was that the court asked the question set forth above and made the statement to which defendant excepted and assigned error. It will be noted that immediately after telling the witness be could not say who made the tracks that the judge himself said, “You tracked the defendant to whose house?” This was not a question asked by the solicitor.

In S. v. Bryant, 189 N. C., 112 (114), speaking to the subject, we find: “ No judge, in giving a charge to the petit jury, either in a civil or a criminal action, shall give an opinion whether a fact is fully or sufficiently proven, that being the true office and province of the jury; but be shall state in a plain and correct manner the evidence given in the case, and declare and explain the law arising therein.’ C. S., 564. In terms, this statute refers to the charge, but it has always been construed as including the expression of any opinion, or even an intimation by the judge, at any time during the trial, which is calculated to prejudice either of the parties. Morris v. Kramer, 182 N. C., 87, 91. And when once expressed, such opinion or intimation cannot be recalled. In the case last cited, the court said: ‘When the damage is once done, it cannot be repaired, because, as we know, the baneful impression on the minds of the jury remains there still. . . . One word of untimely rebuke of bis witness may so cripple a party as to leave him utterly helpless before the jury.’ Bank v. McArthur, 168 N. C., 48; S. v. Cook, 162 N. C., 586; S. v. Dick, 60 N. C., 440. It is also held that the probable effect or influence upon the jury, and not the motive of the judge, *211determines whether the party whose right to a fair trial has been impaired is entitled to a new trial.” S. v. Sullivan, 193 N. C., 754.

The expression of the court below, “You tracked the defendant to whose house?” we think prejudicial, and especially so as the evidence of the State was circumstantial. Although inadvertently made by the learned and able judge, yet we think the expression, even when followed by “I didn’t mean to say the defendant,” would make a lasting impression on the jury, who alone were the triers of the facts. Then, again, the defendant was on trial for his life, and this lapsus linguae may have determined his fate.

The principle above set forth does not apply to the power of the court to withdraw incompetent evidence and instruct the jury not to consider it. S. v. Stewart, 189 N. C., 340 (344).

For the reasons given, we think the defendant is entitled to a

New trial.

ScheNOK, J., concurs in result.