#### STATE v. LESLIE HOWELL.

(Filed 9 October, 1940.)

Homicide §§ 16, 27h — Where defendant does not admit killing deceased, . jury should be instructed as to circumstances under which it may return verdict of not guilty.

Defendant entered a plea of not guilty to the charge of murder and did not testify in his own behalf or offer any evidence. *Held:*Notwithstanding sufficient evidence tending to show defendant’s guilt of murder in the first degree, including testimony of a confession made by defendant that he shot and killed deceased, upon the plea of not guilty the burden rested upon the State to show that defendant shot deceased and that deceased died from the wound thus inflicted, since the weight and credibility of the evidence lies within the province of the jury, and an instruction which fails to charge the jury as to the circumstances under which it might render a verdict of not guilty is error, the presumption arising when a killing with a deadly weapon is admitted or established not relieving the State of the burden of showing an unlawful killing.

Appeal by defendant from *Thompson, J.,*at April Term, 1940, of WayNE.

New trial.

Criminal prosecution tried on a bill of indictment wbicb charged tbe defendant with tbe murder of one H. C. Wiegand.

On tbe nigbt of 7 March, 1940, defendant and bis wife were quarreling and cursing each other. She started down tbe street presumably to call officers. Tbe defendant, having a shotgun in bis band, followed her to tbe corner and they went back to tbe bouse still cursing and quarreling. After they returned to their home tbe difficulty continued and she went out on tbe porch and called to neighbors to get tbe officers. One of tbe neighbors went for tbe officers. When tbe officers came defendant’s wife was on tbe porch and he was in tbe bouse. When tbe deceased and other officers started in tbe door to arrest tbe defendant a gun fired and tbe deceased received a mortal wound in bis right side. One witness testified that be saw tbe defendant fire tbe gun and there was other circumstantial evidence tending to so show. After bis arrest tbe defendant admitted to tbe officers that be shot tbe deceased. There was also evidence that tbe defendant bad threatened to bill tbe first officer that came into bis bouse.

*281Tbe defendant, upon being arraigned, entered bis plea of not guilty. He did not testify in bis own bebalf or offer any other witness, but, at tbe conclusion of tbe evidence for tbe State, moved for judgment as of nonsuit and excepted to tbe refusal thereof. Tbe jury returned for its verdict “guilty of murder in tbe first degree.” Thereupon, tbe court pronounced judgment of death by asphyxiation. Defendant excepted and appealed.

*Attorney-General McMullan and Assistant Attorneys-Generad Bruton and Patton for the State, appellee.*

*N. W. Outlaiu for defendant, appellant.*

BaRNhill, J.

Tbe defendant’s primary assignment of error is directed to tbe failure of tbe court to charge tbe jury as to its right to return a verdict of not guilty. This assignment of error must be sustained.

Tbe defendant did not testify in bis own bebalf and at no time admitted that be killed tbe deceased. His plea denied that be was guilty of any unlawful killing and challenged both tbe weight and credibility of tbe evidence offered by tbe State. On this plea tbe burden rested upon tbe State to show beyond a reasonable doubt that tbe defendant bad committed an unlawful killing before any verdict of unlawful homicide could be returned. While it is a rule with us that when it is proven or admitted that a defendant intentionally killed another with a deadly weapon certain presumptions arise which cast tbe burden upon tbe defendant to mitigate tbe killing or to excuse it altogether on tbe grounds of accident, misadventure or self-defense, this does not, and it has never been interpreted to, mean that tbe burden of showing an unlawful killing does not rest with tbe State throughout tbe trial.

Tbe assumption by tbe court that it was admitted or proven that tbe defendant unlawfully killed tbe deceased permeates tbe whole charge except in one paragraph which was as follows :

> “Now, Gentlemen of tbe Jury, tbe defendant says and insists that be is not guilty of any charge and, before you could find him guilty of any offense, tbe State must have satisfied you from tbe evidence, beyond a reasonable doubt, be is guilty of tbe offense as to which you find him guilty.”

But tbe court bad charged tbe jury: “Tbe State in this case asks at your bands against tbe accused, Leslie Howell, a verdict of guilty of murder in tbe first degree. Tbe defendant has pleaded not guilty to that charge.” And further — elaborating thereon — that tbe defendant says and insists that be did not kill with premeditation and deliberation; that be did not kill with malice; that be did not kill intentionally; that all be wanted to do was to get tbe officers out of bis bouse on that occa*282sion; and that his passion, which had already been aroused on account of the altercation with his wife, suddenly became so aroused that what he did was done in the heat of passion. It further charged: “He says- and insists therefore . . . that (manslaughter) is the most that you can render against him, and the one contention of counsel in his argument was that that was all the verdict that could be rendered”; and again, “the accused in this ease does not contend that he is not guilty of some offense. His counsel in his argument to you did not contend that you ought not to return a verdict of guilty against the defendant, but his counsel did contend that the most you should return against the defendant in this case would be a- verdict of guilty of manslaughter.”

At no time did the court instruct the jury that it could or should under any circumstances return a verdict of not guilty. Nor did the court require the jury to find, as an essential element of the crime charged, that the deceased fired the shot which inflicted the fatal wound or that the deceased died from the wound inflicted.

There is no exception to the quoted excerpts from the charge. However, consideration thereof serves but to emphasize the fact that the inadvertence of the court in the respects indicated deprived the defendant of a substantial right and was prejudicial and harmful. *S. v. Helms,*181 N. C., 566, 107 S. E., 228; *S. v. Castle,*133 N. C., 769, 46 S. E., 1; *S. v. Maxwell,*215 N. C., 32, 1 S. E. (2d), 125; *S. v. Redman,*217 N. C., 483. Under the charge as given the jury must have felt that a verdict at least of guilty of manslaughter was imperative.

There is ample evidence in the record to sustain the charge of murder in the first degree and it may be that upon a retrial the same result will be reached. And yet it is important that a defendant, however humble or defenseless he may be, shall not suffer the penalty of death until he has been convicted in a trial in which there has been a scrupulous observance of constitutional and statutory safeguards protecting and preserving his rights. When there is a general plea of not guilty and no admission of an unlawful killing the death penalty will be exacted only upon the verdict of a jury which has been given full opportunity to pass upon the weight and credibility of the evidence and only after it has been instructed as to its right to return, and the conditions upon which it should render, a verdict of not guilty.

New trial.