{
  "id": 11273360,
  "name": "J. H. GREENLEE, Trustee, v. VIRGIL GREENLEE and ANDREW BURGIN",
  "name_abbreviation": "Greenlee v. Greenlee",
  "decision_date": "1885-10",
  "docket_number": "",
  "first_page": "278",
  "last_page": "281",
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      "cite": "93 N.C. 278"
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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  "analysis": {
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  "last_updated": "2023-07-14T16:31:05.515433+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "J. H. GREENLEE, Trustee, v. VIRGIL GREENLEE and ANDREW BURGIN."
    ],
    "opinions": [
      {
        "text": "Ashe, J.,\n(after stating the facts). There is no merit in either of the exceptions taken by the plaintiff'. We are unable to perceive how the remark made by the Judge in .the hearing of the jury, that if the correction was very material or important it might be heard by the Court on motion for a new trial, could possibly have influenced, in any degree, the minds of the jury, especially after the Court instructed them that they must not be influenced by the fact that Burgin had not been allowed to make any correction, and that they must find the facts only upon the testimony in the case, or in other words, that they must consider the testimony of Burgin as it had been deposed by him.\nAs to the other exception, upon the ground of abuse of privilege by the defendants'counsel in commenting on the refusal of plaintiff to agree that Burgin might correct his testimony, the Court did all that was required of it by law to do, under such circumstances. As soon as the counsel commenced the comment, he was promptly stopped by the Court, and in the charge to the jury, they were told that they were not to be influenced in rendering their verdict by any remark made by the counsel in reference to the matter. When there is an abuse of privilege by counsel, the Court may either stop the counsel or caution the jury against it in the charge. Here the Court did both; aud it is no ground for a new trial. Wilson v. White, 80 N. C., 280; Kerchner v. McRae, 80 N. C., 219; Cannon v. Morris, 81 N. C., 139; State v. Wilson, 90 N. C., 736.\nThere is no error. The judgment of the Superior Court is affirmed.\nNo error. Affirmed.",
        "type": "majority",
        "author": "Ashe, J.,"
      }
    ],
    "attorneys": [
      "Mr. E. T. Greenlee, for the plaintiff'.",
      "Mr. J. F. Morphew, for the defendants."
    ],
    "corrections": "",
    "head_matter": "J. H. GREENLEE, Trustee, v. VIRGIL GREENLEE and ANDREW BURGIN.\nWitness \u2014 Privilege, of Counsel.\n1. The Court has power, alter the evideDce is closed, to refuse to allow a witness to correct his testimony before the jury, and to retain the matter to be heard on a motion for a new trial, if the correction be material.\n2. It is not error for the Judge to say in the presence and hearing-of the jury, that he will not allow such correction to be then made, but will retain the matter to be heard on a motion for a new trial.\n3. Where there is an abuse of privilege by counsel in the address to the jury, the Court may either stop the counsel, or caution the jury in the charge not tobe influenced by the improper argument.\n(Wilson v. While, SO N. C., 280; Kerclmer v. McRae, 80 N. C., 219; Cannon v. Morris, 81 N. C., 139; States. Wilson, 90 N. C., 736, cited and approved).\nCivil Action to recover land, tried before Avery, Judge, and a jury at Eall Term, 1885, of McDowell Superior Court.\nThe plaintiff offered evidence tending to show that he had title to the two tracts of land in controversy, which were not adjacent, but lying not. far apart. But it did not appear that he had had possession of either since 1865.\nThe defendant produced in evidence a grant from the State, covering the land in dispute, and offered evidence tending to show that he had been in the actual possession under his grant, of parts of both the tracts claimed by the plaintiff for more than seven years prior to the commencement of the action in 1882.\nOne Burgin, a witness for the plaintiff, testified among other matters, that the defendant did not put his fence across the line of one. of the tracts until three or four years before the commencement of the action, and after one argument had been made for the plaintiff and one for the defendant, the counsel for the defendant announced to the Court that the witness Burgin desired to correct his testimony in reference to the possesion. He had not been examined as to any other matter, except the length of the defendants\u2019 possession of one of the tracts;\nThe counsel for the plaintiff objected to allowing the corree- ' tion to be made at that time, and gave as a reason that it might involve some change in the testimony for the plaintiff; that plaintiff might have met the matter proposed now to be shown by the witness, on the trial, with the testimony of witnesses dismissed without examination, and that plaintiff would not have introduced Burgin except upon information that he would testify as he had done.\nThe Judge then said, that Burgin would not be allowed to make any correction now; that if the correction was very material or important, it might be heard by the Court on a motion for new trial, and counsel might understand that now.\nAfter the refusal to allow the witness to correct his testimony, an argument was made to the Court and jury by one of the counsel for the defendant, and the argument was concluded by counsel for plaintiff.\nIn addressing the jury, counsel for the defendants said : \u201cGentlemen of the jury, the counsel on the other side refused to allow Mr. Burgin to correct his testimony\u201d \u2014 and was evidently proceeding to. comment on the fact, when counsel for plaintiff objected.\nThe Court directed counsel to desist from any reference to the motion to allow Burgin to correct his testimony, and told the jury then that they need not be influenced in rendering their verdict by any remark made by counsel in reference to the matter, or by the fact that Burgin had not been allowed to make any correction. Counsel made no further remarks on that subject. Subsequently, in the charge to the jury, the Court told them that they would find the facts only from the testimony in the case.\nThere was no exception asked or entered for plaintiff to the charge of the Court, or to any ruling of the Court in the progress of the trial.\nAfter verdict, counsel for plaintiff moved the Court for a new trial: 1st, because the remark of the Court in presence of the jury, that if the correction was very material or important, it might be heard by the Court on motion for new trial, &c.; 2nd, on the ground that the comment of counsel on the refusal of plaintiff to agree that Alney Burgin should correct his testimony was a gross abuse of privilege.\nA motion for new trial on the grounds mentioned was refused. Plaintiff' excepted, and appealed.\nMr. E. T. Greenlee, for the plaintiff'.\nMr. J. F. Morphew, for the defendants."
  },
  "file_name": "0278-01",
  "first_page_order": 310,
  "last_page_order": 313
}