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N.C.App.1 FALL SESSION 1972 399
In re Holland
The jury answered issues in favor of the propounders,
finding that Cary T. Holland at the time of execution of the
document offered for probate did have sufficient mental ca-pacity
to make a will. From judgment on the verdict admitting
the will to probate in solemn form, caveators appealed, assigning
as errors various portions of the court's instructio;ns to the
jury.
Murdock & Jarvis by Jerry L. Jarvis, Felix B. Cluyton and
Edward G. Johnson for propounders, appellees.
Powe, Porter & Alphin, P.A. by James G. Billings for
caveators, appellants.
PARKER, Judge.
Appellants except and assign error to the following in the
court's charge to the jury:
"The propounders have offered Dr. Perry's opinion
that in his opinion he did have sufficient mental capacity
to know the nature and extent of his property and who were
the natural objects of his hunty, and the effect of his
act in making a Will thereby disposing of his property.
"In connection with Dr. Perry's testimony, I will in-struct
you that you can give some importance to his opinion,
perhaps more than you would to another witness, because he
is a doctor, although again you are the triers of the facts
and not the witness--even an expert witness. So after
listening to Dr. Perry's testimony-you are not bound by
it, however, you can give some weight to the facts that
he was a doctor who was expressing an opinion."
In giving this instruction the judge invaded the province
of the jury and violated the prohibition of G.S. 1A-1, Rule
51 (a), that in charging the jury "no judge shall give an opinion
whether a fact is fully or sufficiently proved, that being the
true office and province of the jury." It has long been an
established principle in the jurisprudence of this State that
"[tlhe slightest intimation from a judge as to the strength of
the evidence, or as to the credibility of a witness, will always
have great weight with a jury, and, therefore, we must
be careful to see that neither party is unduly prejudiced by any
expression from the bench which is likely to prevent a fair and
impartial trial." State v. Ownby, 146 N.C. 677, 61 S.E. 630.
Object Description
| Title | North Carolina Court of Appeals Reports [v.016, Fall Session Session 1972] |
| Creator | North Carolina. Court of Appeals. |
| Date | 1973 |
| Subjects | Law reports, digests, etc.--North Carolina; Court records--North Carolina |
| Place | North Carolina, United States |
| Description | Volume 16, Fall Session Session 1972. Cited as 16 N.C.App. The North Carolina Court of Appeals Reports are the official report of opinions of the North Carolina Court of Appeals. Includes cases and other information about the courts of North Carolina. |
| Publisher | Court of Appeals of North Carolina |
| Agency-Current | North Carolina Court of Appeals, Judicial Department |
| Rights | State Document see http://digital.ncdcr.gov/u?/p249901coll22,63754 |
| Collection | North Carolina State Documents Collection. State Library of North Carolina |
| Type | Text |
| Language | English |
| Format | Reports; Legal documents |
| Digital Characteristics-A | 35.8 MB; 826 p. |
| Serial Title | North Carolina Court of Appeals Reports |
| Digital Collection | North Carolina Digital State Documents Collection |
| Digital Format | application/pdf |
| Pres File Name-M | pubs_serial_courtofappealsreports_vol_016.pdf |
| Pres Local File Path-M | \Preservation_content\StatePubs\pubs_law\images_master\ |
| OCLC Number-Original | 1681248 |
Description
| Title | Page 423 |
| Full Text | N.C.App.1 FALL SESSION 1972 399 In re Holland The jury answered issues in favor of the propounders, finding that Cary T. Holland at the time of execution of the document offered for probate did have sufficient mental ca-pacity to make a will. From judgment on the verdict admitting the will to probate in solemn form, caveators appealed, assigning as errors various portions of the court's instructio;ns to the jury. Murdock & Jarvis by Jerry L. Jarvis, Felix B. Cluyton and Edward G. Johnson for propounders, appellees. Powe, Porter & Alphin, P.A. by James G. Billings for caveators, appellants. PARKER, Judge. Appellants except and assign error to the following in the court's charge to the jury: "The propounders have offered Dr. Perry's opinion that in his opinion he did have sufficient mental capacity to know the nature and extent of his property and who were the natural objects of his hunty, and the effect of his act in making a Will thereby disposing of his property. "In connection with Dr. Perry's testimony, I will in-struct you that you can give some importance to his opinion, perhaps more than you would to another witness, because he is a doctor, although again you are the triers of the facts and not the witness--even an expert witness. So after listening to Dr. Perry's testimony-you are not bound by it, however, you can give some weight to the facts that he was a doctor who was expressing an opinion." In giving this instruction the judge invaded the province of the jury and violated the prohibition of G.S. 1A-1, Rule 51 (a), that in charging the jury "no judge shall give an opinion whether a fact is fully or sufficiently proved, that being the true office and province of the jury." It has long been an established principle in the jurisprudence of this State that "[tlhe slightest intimation from a judge as to the strength of the evidence, or as to the credibility of a witness, will always have great weight with a jury, and, therefore, we must be careful to see that neither party is unduly prejudiced by any expression from the bench which is likely to prevent a fair and impartial trial." State v. Ownby, 146 N.C. 677, 61 S.E. 630. |
