
211 S.E.2d 445 (1975)
286 N.C. 395
STATE of North Carolina
v.
Harold Gerome WHITE.
No. 90.
Supreme Court of North Carolina.
February 12, 1975.
*449 Robert Morgan, Atty. Gen., William B. Ray, Asst. Atty. Gen., John Morgan, Associate Atty. Gen., Raleigh, for the State.
Thomas V. Aldridge, Jr., Graham, for defendant-appellant.
SHARP, Chief Justice:
In his brief appellant purports to bring forward twenty assignments of error, none of which comply with Rule 28 of the Rules of Practice in the Supreme Court, 254 N.C. 783, 810. This rule requires that appellant's brief "shall contain, properly numbered, the several grounds of exception and assignment of error with reference to printed pages of transcript and the authorities relied on classified under each assignment." (Emphasis added.) However, because this is a capital case, aided by the diligence of the members of the Attorney General's staff who prepared the State's brief and gave us the references which defendant's counsel omitted, we have considered each assignment of error. However, we deem it necessary to note only four.
Defendant's assignments of error 21 and 22, that the State's evidence "was not sufficient to carry the case to the jury and further that the evidence was not sufficient to support the submission of the capital charge of first degree murder to the jury," are overruled. The resume of the evidence at the beginning of this opinion clearly demonstrates its sufficiency to withstand all motions for nonsuit, and itself eliminates the necessity of any discussion.
At the close of the evidence the solicitor for the State made the opening argument to the jury. He was followed by defendant's two lawyers. Mr. Harold Dodge, counsel privately employed to assist solicitor, made the final argument. In it he said: ". . .you will answer the question whether this defendant is guilty of first degree murder. If found guilty, he gets an automatic appeal to the Supreme Court of North Carolina it is necessary. If any error is made in this court, that Court will say."
Counsel for defendant objected immediately, and the court summarily disposed of the objection by saying, "Sustained. Members of the jury, don't consider what he said about the Supreme Court."
As soon as Mr. Dodge concluded his argument defense counsel moved the court to declare a mistrial for prejudice to defendant from the prosecution's argument that the jury verdict in this case was not final. The court denied the motion. At the beginning of his charge the judge instructed the jury as follows:
"I want to go back to the argument that was objected to in the argument of counsel that the Supreme Court has a right to send this case back on mistakes. The reason I sustained that objection, I want you all to understand is that the Supreme Court will review this case. That they would only send the case back if I make a mistake on a legal question. They will not review the decisions of the facts by the jury. The jury is the sole trier of the facts of this lawsuit."
No further instruction was given with reference to Mr. Dodge's argument, which is defendant's assignment of error No. 24.
This Court has consistently held that, in a capital case, any argument made by the solicitor, or by private prosecution appearing for the State, which suggests to the *450 jury that they can depend upon either judicial or executive review to correct any errors in their verdict, and to share their responsibility for it, is an abuse of privilege and prejudicial to the defendant. See State v. Hines, Walston & Brown, 286 N.C. 377, 211 S.E.2d 201, in which Justice Branch collects the authorities which fully explain the reasons for the rule.
When such an argument is made it is counsel's duty "to make timely objection [as defense counsel did in this case] so that the judge may correct the transgression by instructing the jury." State v. Hawley, 229 N.C. 167, 170, 48 S.E.2d 35, 37 (1948). However, in a death case intimations by counsel for the State that a jury's verdict is not necessarily a final disposition of the case are so prejudicial that counsel's failure to make timely objection will not waive defendant's right to object. State v. Dockery, 238 N.C. 222, 77 S.E.2d 664 (1953). It is the duty of the trial judge to correct such an abuse at some time in the trial "and, if the impropriety be gross, it is the duty of the judge to interfere at once." State v. Little, 228 N.C. 417, 421, 45 S.E.2d 542, 545 (1947).
In each of the three cases cited immediately above a new trial was awarded because the solicitor, or private prosecution argued that the jury's verdict was not the end of the case; that others would review their verdict before the sentence was executed.
In both Little and Dockery the Court expressed doubt that the court could have given an instruction that would have removed the harmful effect of the improper remarks from the minds of the jury. In Hawley the Court said flatly that no instruction could have neutralized the harmful effect of the solicitor's argument that before the defendant would be put to death the Supreme Court, the Commissioner of Paroles, and in all probability the Governor personally, would carefully consider the case; and that, in any event, "only a certain percentage" of capital felons finally suffered death.
Private prosecution's argument in this case did not go as far as the solicitor's went in Hawley, yet it was clearly intended to overcome the jurors' natural reluctance to render a verdict of guilty of murder in the first degree by diluting their responsibility for its consequences. We cannot, of course, say whether its harmful effects could have been removed by an immediate and positive instruction to the jury that counsel's argument was improper; that neither the Supreme Court nor any other governmental agency could share their responsibility for their verdict; and that their duty required them to weigh the evidence and find the facts on the assumption that whatever verdict they rendered would be the final disposition of the case. Such instructions would have been the minimum requirement, and they were not given.
When objection was made to the argument the court merely said, "Sustained. Members of the Jury don't consider what he said about the Supreme Court." Clearly this instruction was inadequate to "correct the transgression." Later, at the beginning of his charge the judge said, "The reason I sustained that objection, I want you all to understand is that the Supreme Court will review this case. That they would only send the case back if I make a mistake on a legal question. They will not review the decisions of the facts by the jury. The jury is the sole trier of the facts of this lawsuit." This instruction was likewise inadequate.
It is quite true that on appeal this Court considers only questions of law, yet we apprehend that the foregoing instruction did not fully enlighten the jury as to the nature of the Supreme Court's review of a case on appeal and as to the difference between "triers of the facts" and judges of the law. They did understand, however, the Supreme Court would "review the case," for both the judge and counsel had told them so. Furthermore, by his positive statement that *451 "the Supreme Court will review this case," the jury was bound to have understood that the court assumed their verdict would be guilty.
For the errors embraced in assignment No. 24, we hold that defendant is entitled to a new trial. Our decision on this assignment is bolstered by the following and final episode of the trial.
The jury returned its verdict on 6 December 1973, and the court pronounced judgment. Following the recess of the court that afternoon Mrs. E. R. Larzelere, a member of the panel of jurors summoned for the term, but not a member of the jury which tried defendant, reported the incident detailed below, and one other, to defense counsel:
Mrs. Larzelere was seated in the courtroom when the verdict in this case was returned. When the jurors were discharged and directed to take seats in the courtroom, one of the jurors took a seat behind her. As he sat down she heard him say, "They always take it to the Supreme Court." She did not see the juror who made that statement, but, in her opinion, it was the foreman of defendant's jury.
Counsel told the court what Mrs. Larzelere had told him and moved to set aside the verdict on the grounds of "jury misconduct." Judge Winner "accepted" Mrs. Larzelere's affidavit in which she swore to the facts she had reported, but he denied defendant's motion for a new trial, because "there is nothing in either of those instances that is prejudicial to defendant." We agree that, standing alone, the juror's comment, "They always take it to the Supreme Court," would not justify a new trial. It does, however, indicate to us that one or more of the jurors did consider what counsel "said about the Supreme Court."
Since the case goes back, we consider defendant's assignment of error No. 9. For the purpose of showing bias on the part of Mrs. Langley, the widow of the deceased, who testified for the State as an eyewitness to the homicide, defense counsel asked her on cross-examination, "Have you privately employed counsel to prosecute this case for you?" The court sustained the State's objection to the question. Had she been permitted to answer, Mrs. Langley would have said, "Yes, I did."
A party to either a civil or criminal proceeding may elicit from an opposing witness on cross-examination particular facts having a logical tendency to show that the witness is biased against him, hostile to his cause, or that the witness is interested adversely to him in the outcome of the litigation. Ordinarily, it is prejudicial error to prevent cross-examination of a witness as to facts from which bias would clearly be inferred. State v. Hart, 239 N.C. 709, 711, 80 S.E.2d 901 (1954). Indisputably, the fact that a witness had employed private counsel to prosecute the case against defendant has a logical tendency to show the witness' bias against him. "[H]ostility toward a party may be shown by the fact that the witness has . . .employed special counsel to aid in prosecuting the party." McCormick on Evidence § 40 (1972). See 98 C.J.S. Witnesses § 552 (1957).
The court erred in excluding the evidence that Mrs. Langley had employed private prosecution in this case. However, decision on assignment No. 24 makes it unnecessry to decide whether this error was prejudicial in this case. Other of defendant's assignments of error have merit but, since we deem none of them likely to reoccur at the next trial, we omit discussion of them.
New trial.
COPELAND and EXUM, JJ., did not participate in the hearing or decision of this case.
LAKE, Justice (concurring in result).
It is my opinion that a new trial must be had in this case but not for the reason upon which the majority opinion rests.
After the jury had begun its deliberations, which it did later than 5 p. m. on *452 December 5, the jury returned to the courtroom with a request for further instructions as to the elements of the crime of first degree murder. The judge stated that because of the late hour, he would not explain the law relating to that matter at that time but would do so "the first thing in the morning" and would let the jury go in the meantime. He specifically instructed the jury: "Be careful and observe all the instructions I gave you the first of the week, do not talk about the case. Let me caution you again, not to discuss this case even among yourselves until you are back here tomorrow and back in the jury room."
The trial resumed at 9 a. m. on December 6, at which time the court, in response to the request of the jury, instructed the jury as to the elements of first degree murder and second degree murder and, thereupon, sent the jury to its room to resume its deliberations. The jury returned with its verdict of guilty of murder in the first degree and, upon that verdict, the court sentenced the defendant to death.
On the following day, December 7, before the end of the term, the defendant made a motion that the judgment be vacated and a new trial granted because of misconduct of one or more of the jurors. The alleged misconduct had been brought to the attention of counsel for the defendant, after the imposition of sentence, by Mrs. W. R. Larzelere who was on the jury panel for the term but was not a member of the jury which tried this defendant. Her affidavit, which was submitted to the court in support of the motion, stated:
"That when this Affiant arrived at the Courthouse on the morning of December 6, 1973, she proceeded to the hallway immediately to the rear of the Courtroom where the Harold Gerome White Case was being tried and between 8:30 and 9:00 o'clock a. m. there observed several individuals at least three in number, and recognized at least one of said individuals as a juror on the Harold Gerome White Case. That as Affiant approached this group she commented about climbing the stairs and proceeded toward the Courtroom door when the said individuals there talking to each other were overheard by her as discussing the trial, and this Affiant commented that she had not been present for all the testimony but there seemed to her to be contradictions in the testimony, whereupon the white male in said group which this Affiant recognized as a juror on the White Case stated very emphatically that he had heard all the evidence and that it was an open and shut case of murder."
The court thereupon had Mrs. Larzelere duly sworn. She testified that she did not know whether the group she observed talking about the case contained more than one of the jurors serving on that case but "there were at least two other men out there" and they were talking when she came up, "discussing this case." She testified that she informed the group that she thought there was some "controversy in the testimony" but that she had not heard all of the testimony and, thereupon, the foreman of the jury made the statement that he thought it was an open and shut case of murder.
Although the foreman of the jury, thus accused of impropriety by Mrs. Larzelere, was present in the courtroom and was identified therein by her as the man she had heard making the statement in question, the court did not see fit to call him as a witness and interrogate him about the matter, simply stating that there was nothing in the incident that was prejudicial to the defendant and, therefore, denied the motion for a new trial.
It is obvious that Mrs. Larzelere, on her own testimony, was guilty of gross misconduct in discussing the case with at least one person known by her to be a juror in the case. For this misconduct she, herself, could well have been cited for contempt of court but no such action was taken.
Taking the testimony and the affidavit of Mrs. Larzelere as true, which under the *453 circumstances we must do, the foreman of the jury clearly violated the proper instructions given the jury by the court at adjournment on December 5. He not only stated his own conclusion as to the defendant's guilt prior to the final instructions of the court, but he engaged in "discussing this case" with other persons who may or may not have been members of the jury. The nature of their discussion concerning the case is not known. We cannot, upon this record, determine whether that discussion was prejudicial to the defendant or not. A verdict of guilty in a capital case should not be allowed to stand as support for a death sentence under these circumstances, though, ordinarily, the granting of a mistrial for misconduct of this sort rests in the sound discretion of the trial judge. See, State v. Shedd, 274 N.C. 95, 103, 161 S.E.2d 477. The trial judge, in my opinion, should have vacated this judgment, set aside the verdict and ordered a new trial.
I agree with both the majority opinion and with the dissenting opinion of Justice Huskins concerning the alleged comment by the foreman after the jury returned to the courtroom following the verdict and was discharged. That comment was not prejudicial to the defendant and did not disclose any impropriety by the jury or any consideration by the jury of any improper or irrelevant matter.
I am unable to agree with the majority concerning the steps taken by the trial judge to correct the improper statement by counsel for the private prosecution in his argument to the jury. As to that matter, I am in agreement with the dissenting opinion of Justice Huskins.
In his argument, counsel for the private prosecution told the jury:
"You will answer the question whether this Defendant is guilty of First Degree Murder. If found guilty, he gets an automatic appeal to the Supreme Court of North Carolina it is necessary. If any error is made in this Court, that Court will say." (Emphasis added.)
That argument was improper because it tended to minimize the importance of the jury's verdict and from it the jury might infer that its verdict would be reviewed by the Supreme Court. See, State v. Hawley, 229 N.C. 167, 48 S.E.2d 35, and State v. Little, 228 N.C. 417, 45 S.E.2d 542, in each of which the argument of the solicitor was substantially more objectionable than in the present case. Upon prompt objection by counsel for the defendant, the trial judge responded:
"SUSTAINED, Members of the Jury, don't consider what he said about the Supreme Court."
The foregoing statement apparently occurred at the very end of the concluding argument to the jury. The defendant's counsel thereupon moved for a mistrial, which the court denied. The court then asked, "Do you want me to instruct them not to consider it again, or not?" Counsel for the defendant replied, "Without prejudice to the defendant on its motion for mistrial, we ask the Court to instruct the jury as to the proper law." It does not appear that these remarks were in the hearing of the jury. The court immediately began its instructions to the jury and opened its charge with this statement:
"Members of the Jury, I want to go back to the argument that was objected to in the argument of counsel that the Supreme Court has a right to send this case back on mistakes. The reason I sustained that objection, I want you to understand is that the Supreme Court will review this case. That they would only send the case back if I make a mistake on a legal question. They will not review the decisions of the facts by the jury. The jury is the sole trier of the facts of this lawsuit." (Emphasis added.)
To say that this is an expression of opinion by the trial court that the jury would (or should) return a verdict of guilty is, in my opinion, a very strained construction of what the judge said. Only a few moments before, the argument in question had been made to the jury and, in view of the resulting *454 flurry of excitement, it is reasonable to suppose that the jury remembered that, whatever it may have remembered about the rest of counsel's argument. That statement was, "If found guilty, he gets an automatic appeal." (Emphasis added.) In the remainder of the charge, the trial court clearly instructed the jury as to the burden of proof and as to the elements which the State must prove beyond a reasonable doubt in order to justify a verdict of guilty.
In my opinion, the sum total of the argument of counsel, the objection, the ruling of the court thereon and the instruction of the court with reference thereto was not prejudicial to the defendant. Had none of this occurred, it is entirely possible that the jurors might have gone into their deliberations under the impression that their verdict could be reviewed on appeal. In view of all that has been written and said in the press and upon other news media in recent years concerning the death penalty and the appeals from judgments imposing sentences of death, it is probable that any jury in North Carolina would be aware of the likelihood of an appeal from a sentence of death and, in absence of some instruction thereon, the jury might well be confused as to the scope of such appeal. The argument of counsel for the private prosecution was improper and ill advised. Had it not been corrected, it would have been ground for a new trial, but, in my opinion, the trial judge corrected it clearly and effectively. It was made perfectly clear to the jury that the jury and not the appellate court was the final voice on the question of guilt or innocence. I see no error in the ruling or the instruction of the trial judge concerning this argument.
HUSKINS, Justice (dissenting).
The evidence recited in the majority opinion provides overwhelming support for the verdict returned by the jury. Thus, unless prejudicial error is made to appear, the verdict should be upheld.
In my view, the error relied on by the majority is inflated all out of proportion to its actual significance. Granted that Mr. Dodge, the privately employed prosecutor, erred when he argued to the jury: ". . you will answer the question whether this defendant is guilty of first degree murder. If found guilty, he gets an automatic appeal to the Supreme Court of North Carolina it is necessary. If any error is made in this court, that Court will say." Upon objection the able and conscientious trial judge immediately said: "Sustained. Members of the jury, don't consider what he said about the Supreme Court." This was sufficient, in my opinion, to remove any harmful effect the mildly improper argument of counsel might have had. But the judge went further and at the beginning of his charge to the jury stated: "I want to go back to the argument that was objected to in the argument of counsel that the Supreme Court has a right to send this case back on mistakes. The reason I sustained that objection, I want you all to understand is that the Supreme Court will review this case. That they would only send the case back if I make a mistake on a legal question. They will not review the decisions of the facts by the jury. The jury is the sole trier of the facts of this lawsuit." (Emphasis added) While this instruction is not a model of good grammar or sentence structure and does not depict the wisest choice of words, it nevertheless informs the jury in understandable language that a review by the Supreme Court would entail only an examination of the case for errors of law, not errors of fact "they will not review the decisions of the facts by the jury." Thus it seems to me that any prejudicial effect the improper argument might have had was decisively removed by the instructions of the court. I see little else the court could have done; and unless we are to say that this impropriety was so gross it could not be corrected, the effects of the episode should be regarded as cured and the conviction upheld.
Moreover, I attach no significance whatever to the report by Mrs. Larzalere that, *455 after the jury had been discharged, she heard one of the jurors say: "They always take it to the Supreme Court." Once a jury is discharged its verdict cannot be impeached by statements, and rumors of statements, allegedly made by some of the jurors. Selph v. Selph, 267 N.C. 635, 148 S.E.2d 574 (1966); State v. Hollingsworth, 263 N.C. 158, 139 S.E.2d 235 (1964); 7 Strong's N.C.Index 2d, Trial § 46 (1968).
I am in thorough agreement with the majority holding that defendant should have been permitted to cross-examine Mrs. Langley with reference to her employment of private counsel. This evidence was competent to show bias on the part of Mrs. Langley, and the rule to that effect is so generally recognized as to require no citation of authority. Even so, defendant was on trial for killing Mrs. Langley's husband who was shot down before her eyes, and every member of the jury knew she was bitterly biased against defendant and intensely interested in seeing him convicted. Hence exclusion of evidence that she had employed counsel to assist the prosecution was harmless beyond a reasonable doubt. Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963); State v. Taylor, 280 N.C. 273, 185 S.E.2d 677 (1972); State v. Brinson, 277 N.C. 286, 177 S.E.2d 398 (1970).
For the reasons stated I respectfully dissent from the majority opinion granting a new trial. I vote to uphold the conviction.
