#### STATE v. CHESTER GODWIN.

(Filed 27 November 1963.)

1. Criminal Law § 106-

An has~ruction whieli, in effect, places the burden upon defendant to prove his defense ~f an alibi to prejudicIal error.

2. Crhnina~L Law § 11G-

The jury returned as a verdict "we de~ided be is guilty of an assault of this person," whereupon the court asked the jury if the count should understand that the jury found the defendant guilty of an assault with a deadly weapon inflicting serious injuries not resulting `in death, as charged in the indictment. Held: It was prejudicial error for the trial court to intimate to the jury what their verdict should be.

APPIrAL by defenda~iiit from Burgwyr~, E. J., Augusth 1963 Se~siion. o~ JOHNSTON.

Crirnânal pa~oaeoutáon upon an ind'brn~ `c~rg~og d'efendiaiit with ~n oaaault with `a deadly weapon upon Billy Ray Carter w'iTtlh intent to kill a~esu1rt~ing in cerious injury. G.S. 14~32.

Plea: Not guilty.

The recoa~d dise1'oisei~ blie following in respect to the verdict:

"Upoai. ~the ~o~ni~nJg in o;f the verciliet, the Juiry ~ayt~: `We d~eeicLed tha~ he i~s guilty of an A~eau1t on thi~s peDson.'

"COURT: Do I understand tha~t `the Jua~y finds the Defendant guilty of an A~isau1t with a Deadly weapon, infiu'cthimg seadons injuries, not resulting in death, as charged in the Bill of Indietment? Do you mean to say that?

"JUROR: Yes, dr.

*581“COURT: So say you all?

“JURY: Yes, six, we agree.

“CLERK: Do you, the Jury, find the Defendant guilty of Assault with a Deadly Weapon with Intent to Kill, inflicting serious injuries not resulting in dearth? Jury: Yes.

“COURT: Guilty as ’charged in the Bill of Indictment?

“JURY: Yes.”

Judgment: “Let the defendant be confined in the State prison for not lass than seven nor more than ten years.”

Defendant appeals.

*Attorney General T. W. Bruton and Deputy Attorney General Harry W. McGalliard for the State.*

*Levinson & Levinson and B. E. Batton by L. L. Levinson for defendant appellant.*

Pee Cueiam.

The State offered plenary evidence to carry the case to the jury on the offense charged in the indictment.

Defendant .offered evidence tending to show an ¡alibi. He assigns as error the court’s charge on an alibi, which in effect placed the burden of proving an alibi on defendant. The assignment of error is good. *S. v. Allison,*256 N.C. 240, 123 S.E. 2d 465; *S. v. Spencer,*256 N.C. 487, 124 S.E. 2d 175; *S. v.*Walston, 259 N.C. 385, 130 S.E. 2d 636.

Defendant assigns ¡as error the verdict as rendered, upon which the judgment is based, on the ground that the trial judge told them in effect what their verdict shall be. In *S. v. Gatlin,*241 N.C. 175, 84 S.E. 2d 880, the Court quoted with approval from *Edwards v. Motor Co.,*235 N.C. 269, 69 S.E. 2d 550, ais follows: “ ‘Where the findings are indefinite or inconsistent, the presiding judge may give additional instructions and direct the jury to retire again .and bring in a proper verdict, but >he may not tell them what their verdict shall be’.” The assignment of error is good. The Attorney General in his brief states:

> “Certainly, it would have been proper for the judge to have re-instructed the jury at this time as to the proper possible verdicts ■and directed the jury to retire for further consideration. However, in inquiring of the jury .as to whether the intended verdict was not that of .being guilty of the most serious offense charged, the judge created a situation which the State has difficulty in distinguishing from that in *State v. Gatlin, supra,*in which case the Court ordered a new trial.”

The verdict .and judgment are vacated, and a new trial is ordered.

New trial.