
81 S.E.2d 173 (1954)
240 N.C. 60
STATE
v.
CANIPE.
No. 291.
Supreme Court of North Carolina.
April 7, 1954.
*176 Harry McMullan, Atty. Gen., and T. W. Bruton, Asst. Atty. Gen., for the State.
Horn & West and A. A. Powell, Shelby, for the prisoner.
ERVIN, Justice.
Every person charged with crime has an absolute right to a fair trial. By this it is meant that he is entitled to a trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. State v. Carter, 233 N.C. 581, 65 S.E.2d 9.
We are confronted at the threshold of this appeal by the assignments of error which assert, in essence, that the able and just presiding judge unintentionally impaired the fundamental right of the prisoner to have his cause determined by an unprejudiced jury in an atmosphere of judicial calm by the questions he put during the selection of the jury to prospective jurors who professed conscientious scruples against capital punishment. The questions were asked in the hearing of the twelve jurors who were immediately impaneled to pass between the State and the prisoner upon his life and death.
The founders of our legal system intended that the right of trial by jury should be a vital force rather than an empty form in the administration of justice. They realized that this could not be if the trial jury should become a mere unthinking echo of the judge's will. To forestall such eventuality, they clearly demarcated the respective functions of the judge and the jury in both civil and criminal trials in a familiar statute, which was enacted in 1796, and which originally bore this caption: "An act to secure the impartiality of trial by jury, and to direct the conduct of judges in charges to the petit jury." Potter's Revisal, Vol. 1, ch. 452. This, statute, which now appears as G.S. § 1-180, establishes these basic propositions: (1) That it is the duty of the judge alone to decide the legal questions presented at the trial, and to instruct the jury as to the law arising on the evidence given in the case; (2) that it is the task of the jury alone to determine the facts of the case from the evidence adduced; and (3) that "no judge, in giving a charge to the petit jury, * * shall give an opinion whether a fact is fully or sufficiently proven, that being the true office and province of the jury". This statute is designed to make effectual the right of every litigant to have his cause considered with the "cold neutrality of the impartial judge" and the equally unbiased mind of a properly instructed jury. In re Will of Bartlett, 235 N.C. 489, 70 S.E.2d 482.
Although the statute refers in terms to the charge, it has always been construed to forbid the judge to convey to the trial jury in any way at any stage of the trial his opinion on the facts involved in the case. In re Will of Bartlett, supra; State v. Gibson, 233 N.C. 691, 65 S.E.2d 508; State v. Simpson, 233 N.C. 438, 64 S.E.2d 568; State v. McNeil, 231 N.C. 666, 58 S.E.2d 366; Bailey v. Hayman, 220 N.C. *177 402, 17 S.E.2d 520; State v. Oakley, 210 N.C. 206, 186 S.E. 244; State v. Bryant, 189 N.C. 112, 126 S.E. 107; Morris v. Kramer Bros. Co., 182 N.C. 87, 108 S.E. 381; State v. Rogers, 173 N.C. 755, 91 S.E. 854, L.R.A.1917E, 857; State v. Cook, 162 N.C. 586, 77 S.E. 759; Park v. Exum, 156 N.C. 228, 72 S.E. 309; State v. Swink, 151 N.C. 726, 66 S.E. 448, 19 Ann.Cas. 422; Withers v. Lane, 144 N.C. 184, 56 S.E. 855; State v. Davis, 136 N.C. 568, 49 S.E. 162; Marcom v. Adams, 122 N.C. 222, 29 S.E. 333; State v. Browning, 78 N.C. 555.
The trial of a case begins within the purview of the statute when the prospective jurors are called to be examined touching their fitness to serve on the trial jury. Lipscomb v. State, 76 Miss. 223, 25 So. 158; State v. Neal, 350 Mo. 1002, 169 S.W.2d 686; Simmons v. State, 4 Okl.Cr. 490, 114 P. 752. This being so, it is a violation of the statute for the judge to communicate his opinion on the facts in the case to the trial jury by his remarks or questions to prospective jurors during the selection of the trial jury. State v. Diedtman, 58 Mont. 13, 190 P. 117; State v. Ferguson, 48 S.D. 346, 204 N.W. 652. See, also, in this connection: Manuel v. United States, 8 Cir., 254 F. 272; People v. Wilson, 334 Ill. 412, 166 N.E. 40; State v. Smith, 216 La. 1041, 45 So.2d 617; Phenizee v. State, 180 Miss. 746, 178 So. 579.
The judge occupies an exalted station, and jurors entertain a profound respect for his opinion. State v. Carter, supra. As a consequence, the judge prejudices a party or his cause in the minds of the trial jurors whenever he violates the statute by expressing an adverse opinion on the facts. When this occurs, it is virtually impossible for the judge to remove the prejudicial impression from the minds of the trial jurors by anything which he may afterwards say to them by way of atonement or explanation. State v. Cantrell, 230 N.C. 46, 51 S.E.2d 887; Thompson v. Angel, 214 N.C. 3, 197 S.E. 618; State v. Winckler, 210 N.C. 556 187 S.E. 792; State v. Oakley, supra; State v. Bryant, supra; State v. Hart, 186 N.C. 582, 120 S.E. 345; Morris v. Kramer Bros. Co., supra; State v. Rogers, supra; Fourth Nat. Bank v. McArthur, 168 N.C. 48, 84 S.E. 39; Speed v. Perry, 167 N.C. 122, 83 S.E. 176; State v. Harris, 166 N.C. 243, 80 S.E. 1067; State v. Cook, supra; Withers v. Lane, supra; State v. Caveness, 78 N.C. 484; State v. Dick, 60 N.C. 440.
Whether the conduct or the language of the judge amounts to an expression of his opinion on the facts is to be determined by its probable meaning to the jury, and not by the motive of the judge. State v. Oakley, supra; State v. Bryant, supra; Morris v. Kramer Bros. Co., supra; State v. Ownbey, 146 N.C. 677, 61 S.E. 630.
The law imposed upon the trial jury alone the function of determining the factual issue whether the prisoner was guilty of murder in the first degree. The law likewise imposed upon the trial jury alone the function of deciding whether it should exercise its discretionary power to fix the punishment of the prisoner at life imprisonment rather than death in the event it found him guilty of murder in the first degree. G.S. § 14-17.
When the able and just presiding judge propounded his questions to the prospective jurors who professed conscientious scruples against capital punishment, he did not intend to influence the jury in the discharge of either of these functions by an expression of his opinion on the facts involved in the case. He was actuated by a salutary motive. He was endeavoring to ascertain the validity and the strength of the scruples professed by the prospective jurors with the sole object by determining whether they could approach the issue of capital punishment with the proper attitude.
But when his questions are read in the light of their probable meaning to the twelve persons who were immediately impaneled to serve as trial jurors, it is apparent that in legal contemplation the presiding *178 judge inadvertently over-stepped his self-appointed bounds and unintentionally expressed an opinion on the facts adverse to the prisoner. This is true because the questions had a logical tendency to implant in the minds of the trial jurors the convictions that the presiding judge believed that the prisoner had killed his wife in an atrocious manner, that the prisoner was guilty of murder in the first degree, and that the prisoner ought to suffer death for his crime.
The Attorney-General contends, however, that the presiding judge made an explanatory statement just before the impanelment of the trial jury in which he offered to excuse from service on that body any of the trial jurors who might have been prejudiced against the prisoner by his questions, that none of the trial jurors accepted the offer, and that the non-acceptance of the offer by the trial jurors shows that the explanatory statement of the presiding judge removed from their minds any prejudicial impressions created by any expression of his opinion on the facts embodied in his questions.
We would be unable to accept as valid the Attorney-General's contention even if we were at liberty to ignore the numerous decisions holding that it is virtually impossible to erase from the minds of jurors prejudicial impressions resulting from the expression by the trial judge of his opinion on the facts. The Attorney-General overlooks the significant circumstance that the offer of the presiding judge was conditional and not absolute. When his explanatory statement is read aright, it appears that he offered to release prejudiced persons from service on the trial jury if, and only if, they first met two conditions. The first condition was, in essence, that they should make a confession in open court that their minds were prejudiced against the prisoner, and the second condition was, in substance, that they should make an accusation in open court that the presiding judge himself had instilled the prejudice in their minds. Each condition was sufficient in itself to deter the trial jurors from accepting the offer.
For the reasons given, we are compelled to sustain the assignments of error under scrutiny. This necessitates a new trial, and renders it unnecessary for us to discuss the remaining assignments of error. We deem it advisable to note, however, that we have examined the remaining assignments of error with care, and have found them to be untenable.
New trial.
