Witness — Privilege of Counsel.
1. The court has power, after the evidence 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.
2. 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.
3. 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 to be influenced by the improper argument.
( Wilson v. White, 80 N.C. 280; Kerchner v. McRae, 80 N.C. 219; Cannon v. Morris, 81 N.C. 139; S. v. Wilson, 90 N.C. 736, cited and approved.)
ASHE, J., 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.
As 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; and 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; S. v. Wilson, 90 N.C. 736.
There is no error. The judgment of the Superior Court is (281) affirmed.
No error. Affirmed.
Cited: Goodman v. Sapp, 102 N.C. 484; S. v. Hill, 114 N.C. 783; S. v. Ussery, 118 N.C. 1179; Jones v. Taylor, 179 N.C. 298; Maney v. Greenwood, 182 N.C. 585.