#### STATE v. ERNEST BOSWELL.

(Filed 21 September, 1927.)

1. Criminal Law — Instructions—Presumption of Innocence — Special Requests for Instructions — Burden of Proof — Reasonable Doubt — Appeal and Error — Objections and Exceptions.

Where upon the trial for a homicide the judge has fully and sufficiently charged the jury that the State must satisfy them of the guilt of the accused beyond a reasonable doubt, the mere failure of the trial judge to *261instruct them as to tlie legal presumption as to the defendant’s innocence, will not be sufficient *to*grant a new trial on appeal in the absence of a special request to that effect, this presumption not being considered as evidence in the case, though the authorities in other jurisdictions are conflicting.

2. Criminal Law — Conspiracy—Declarations—Evidence.

The declarations of one conspirator in the furtherance of a common design of several to commit a homicide, while the design exists, is competent evidence against them all, though not made in their presence, and the fact of conspiracy may be proven by the acts of different persons when legally sufficient to establish it.

3. Instructions — Contentions—Expression of Opinion — Statutes—Appeal „ and Error.

An instruction will not be held for error as an expression of opinion by the trial judge forbidden by statute, because in stating the contention of the State in a criminal action he says that the defendant, a witness in his own behalf, should not be believed, as he had been proven a man of bad character, when the instructions upon the law arising from the evidence have been correct and free from error in this respect.

INDICTMENT for murder, before *Dunn, Emergency Judge,*at February Term, 1927, of Wilson.

No error.

Tbe defendant was indicted witb Arthur Lamm and Tanner Poy-tbress for tbe murder of one Clayton Beaman: Tbe defendant was convicted, and from tbe sentence of imprisonment, appealed to tbis Court, and a new trial was awarded. Tbe case is reported in 192 N. 0., 150.

TJpon tbe second trial tbe defendant was again convicted of murder in tbe second degree, and from tbe judgment of imprisonment pronounced appealed to tbis Court, assigning errors.

*O. P. Dickinson and A. 0. Dickens for defendant.*

*Attorney-General Brummitt and Assistant Attorney-General Nash for the State.*

Beogden, J.

In a criminal action is it reversible error for tbe trial judge to omit to charge tbe jury that tbe defendant is presumed to be innocent in tbe absence of a request to so charge?

Tbe defendant excepted to tbe charge of tbe court for tbe reason that tbe jury was not instructed by tbe trial judge that tbe defendant was presumed to be innocent and that tbe burden of proof was on tbe State. In tbe brief for tbe defendant it is stated: “We have looted in vain to find some North Carolina case that has -been to tbe Supreme Court in which tbe trial judge failed to mention either tbe presumption of innocence or tbe burden of proof. Tbis was evidently overlooked by tbe trial judge, but it makes it none tbe less damaging to tbe defend*262ant’s interests, and we believe that it constitutes reversible error. . . . Many courts, including this one, we think, hold that this legal presumption of innocence is a *piece of evidence*to be weighed in favor of the party for whom it operates and to be overcome, if it may be, by the State.”

In support of the contention so made the defendant relies, upon *Coffin v. U. S.,*156 U. S., 432, 39 L. Ed., 481, in which the principle is thus stated by *Justice White:*“Concluding, then, that the presumption of innocence is evidence in favor of the accused, introduced by the law in his behalf, let us consider what is 'reasonable doubt.’ It is of necessity the condition of mind produced by the proof resulting from the evidence in the cause. It is the result of the proof, not the proof itself, whereas the presumption of innocence is one of the instruments of proof going to bring about the proof from which reasonable doubt arises; thus one is a cause, the other an effect. To say that the one is the equivalent of the other is therefore to say that legal evidence can be excluded from the jury, and that such exclusion may be cured by instructing them correctly in regard to the method by which they are required to reach their conclusion upon the proof actually before them; in other words, that the exclusion of an *important element of proof*can be justified by correctly instructing as to the proof admitted. The evolution of the principle of the presumption of innocence, and its resultant, the doctrine of reasonable doubt, makes more apparent the correctness of these views and indicates the necessity of enforcing the one in order that the other may continue to exist.”

It is obvious that if the “presumption of innocence” is evidence in favor of a defendant, charged with crime, then it would be the imperative duty of the trial judge to instruct the jury as to such presumption.

The question as to whether the presumption of innocence is evidence or not has created a wide and divergent opinion among eminent writers and the courts of last resort. Dean Wigmore, in his Treatise on Evidence, 2 ed., Vol. 5, sec. 2511, writes: “No presumption can be evidence; it is a rule about the duty of producing evidence. . . . But when this erroneous theory is made the ground for ordering new trials because of the mere wording of a judge’s instruction to a jury, the erroneous theory is capable of causing serious harm to the administration of justice. And, because of a temporary aberration of doctrine in the Federal Supreme Court, in *Coffin v. U. S., supra,*such harm was for a time impending. A notable academic deliverance, however, by a master in the law of Evidence, laid bare the fallacy with keen analysis; and it was' soon afterwards discarded in the Court of its origin. In some State Courts the contagious influence of the original error was for a *263time noticeable; but sound views bave gradually come to prevail in tbe greater number of jurisdictions.”

Tbe identical question was discussed in tbe case of *Commonwealth v. Holgate, 63*Pa. Sup. Ct. (1916), p. 266. Tbe opinion states tbe principle announced in tbe *Co fin case,*and tben proceeds as follows: “Tbe above statement bas been severely criticised by botb Wigmore and Cbamberlayne, and wbat is claimed to be its fallacy exposed in detail in Thayer’s Preliminary Treatise on Evidence, Appendix B, p. 551. Tbe conclusion reached by tbe Supreme Court bas not been followed in a number of states, and in *Agnew v. U. S.,*165 U. S., 36, it is stated tbat tbe declaration in tbe *Co fin case*tbat legal presumptions are treated as evidence bas a tendency to mislead. . . .We are convinced tbat tbe weight of authority is against tbe appellant’s contention, and tbat *the*court did *not*err in not charging as *to the*presumption of innocence when be bad already charged as to reasonable doubt, and tbat if defendant desired instructions on this particular phase of tbe subject, be should bave requested tbe court so to do.”

Tbe Supreme Court of Pennsylvania, in tbe case of *Commonwealth v. Russogulo,*in an opinion by *Justice Moschzisker,*106 Atl., 180, held: “Tbe rule tbat a prisoner is always entitled to tbe benefit of any reasonable doubt results ‘from tbe well-established principle tbat tbe presumption of innocence is to stand until it is overcome by proof’ of a quality to carry tbat degree of conviction.” In other words, tbe presumption of innocence is tbe reason which gives rise to, and forms tbe basis of, tbe rule as to reasonable doubt; or, as stated in 16 Corpus Juris, 535, par. 1007: “Its (tbe doctrine of tbe presumption of innocence) . . . function is to cast upon tbe State tbe burden of proving tbe guilt of tbe accused beyond all reasonable doubt.”

Tbe Supreme Court of Missouri, in *S. v. Kennedy,*55 S. W., p. 293, examined tbe question with extensive citation of authorities, and came to tbe following conclusion: “In this State it bas been ruled, in at least three cases, tbat it is not reversible error to refuse an instruction stating tbe presumption of innocence, when tbe court bas fully instructed on tbe doctrine of reasonable doubt. . . . Yet when tbe court bas, as in this case, fully instructed in bis favor on tbe doctrine of reasonable doubt, and tbe evidence so abundantly sustains tbe verdict of tbe jury, we do not think tbe sentence should be reversed solely for tbe failure to state tbe presumption.” In *Culpepper v. State,*111 Pac., p. 679, tbe Supreme Court of Oklahoma, speaking through *Justice Richardson,*discusses tbe question at length, arraying tbe authorities and weighing with care tbe various reasons set forth on botb sides of tbe question.

*264Tbe principles of law announced in tbe foregoing authorities have been recognized and applied by tbe courts of Arkansas, South Dakota, Massachusetts, Kentucky, Ohio, Michigan, Florida, Kansas, and Connecticut: *Monk v. State*(Ark.), 197 S. W., 580; *S. v. Cline*(S. Dak.), 132 N. W., 160; *Commonwealth v. Sinclair*(Mass.), 80 N. E., 802; *Stevens v. Commonwealth*(Ky.), 45 S. W., 76; *Morehead v. State,*34 Ohio St., 212; *People v. Ostrander*(Mich.), 67 N. W., 1079; *S. v. Ross*(Washington, 1915), 147 Pac., 1149; *McDuffie v. State*(Fla.), 46 Southern, 721; *S. Reilly*(Kan.), 116 Pac., 481; *S. v. Brauneis*(Conn.), 79 Atl., 70.

. In this ease the trial judge instructed the jury in substance to return a verdict of not guilty, unless the State had satisfied the jury beyond a reasonable doubt either that the defendant killed the deceased or that the deceased came to his death as the result of conspiracy between the defendant and another, and that defendant, pursuant to said purpose, was present, aiding and abetting in the crime. The trial judge further defined reasonable doubt, and the record discloses that the judge used the expression “beyond a reasonable doubt” perhaps a dozen times in his charge to the jury. It is undoubtedly true that, in this State, it has been the usual practice for trial judges to instruct the jury that the defendant is presumed to be innocent, and that the burden of proof is upon the State to satisfy the jury of the guilt of the accused beyond a reasonable doubt. It would have been proper and usual, under our practice, to have given such instruction, but the record discloses clearly and unmistakably that time after time in his charge the trial judge instructed the jury that they must be satisfied beyond a reasonable doubt of the guilt of the defendant before a verdict could be rendered against him. In view of what we deem the overwhelming weight of authority upon the question, we do not feel constrained to upset the verdict and grant a new trial upon the record before us in the absence of a request by the defendant for instruction upon the presumption.

The defendant also excepted to the admission in evidence of the declaration of one Lamm, who was jointly indicted with the defendant for the murder, such declaration not being made in the presence of defendant. The State contended that the defendant Lamm entered into a plot or conspiracy to kill deceased. It is thoroughly established law in this State that the declaration of one conspirator in furtherance of a common design is admissible, so long as the conspiracy continues, even though made in the absence of the other conspirator. Usually the conspiracy must first be established before such evidence is competent, “but this rule is often parted' from, though it is an inversion of the order, for the sake of convenience, and the prosecution allowed either to prove *265the conspiracy, which makes the acts of the conspirators admissible in evidence against each other when done in furtherance of the common object, or he may prove the acts of different persons, and thus prove the conspiracy. *S. v. Anderson,*92 N. C., 748. See, also, *S. v. Stancill,*178 N. C., 683; *S. v. Brinkley,*183 N. C., 720.

The defendant further excepts to the following statement of the trial judge: “And the State says that being interested in his testimony, being more vitally concerned in the outcome of the case, he has not told the truth, and a man of bad character, *as he has proven himself to he hy vcurious witnesses,*who have come upon the stand, would not have told the truth.” The defendant earnestly insists that the expression “as he has proven himself to be by various witnesses,” etc., is an expression of opinion upon the weight of evidence forbidden by law and constituting reversible error. The record discloses that the expression complained of occurred in the statement of the contentions of the State, and hence the trial judge was not endeavoring to instruct the jury as to the weight of the evidence, but was merely summarizing the contentions of the parties. We cannot hold the expression of sufficient moment to warrant a new trial.

The record, as a whole, leaves us with the impression that the defendant has had a fair trial. While the jury might well have brought in a verdict of acquittal from the evidence, yet, under our law, they were the sole finders of the facts and the sole weighers of the evidence, and we find no reason in law for disturbing the verdict.

No error.