#### STATE v. FRANK CEPHUS.

(Filed 24 February, 1954.)

1. Criminal Law § 38—

In criminal prosecutions a defendant’s plea of not guilty clothes him with a presumption of innocence which continues to the moment the State offers evidence sufficient to rebut the presumption and to show beyond a reasonable doubt that the defendant in fact committed the crime charged, or some lesser degree thereof.

S. Same—

The general rule, which is subject to certain exceptions, is that the burden of proof in a criminal prosecution never shifts to defendant but remains on the State throughout the trial, and defendant does not have the burden of proving matters in justification or excuse.

3. Assault §§ 11, 14b—

In a prosecution for assault with a deadly weapon in which defendant’s evidence tends to show that he acted only in his own necessary self-defense, the burden of proof rests on the State throughout the trial to prove that defendant willingly engaged in an affray or unlawfully assaulted the prosecuting witness and that in so doing he used a deadly weapon, and .thus rebut any suggestion of self-defense, and an instruction that the burden was on defendant of proving his plea of self-defense to the satisfaction of the jury .constitutes prejudicial error.

Appeal by defendant from *Bone,*JOctober Term, 1953, Edgecombe.

New trial.

Criminal prosecution in wbicb it is charged tbat defendant assaulted one Harvey Everett witb a deadly weapon.

Tbe defendant entered a general plea of not guilty.

On 28 February 1953 defendant, Harvey Everett (tbe prosecuting witness), Richard Pippen, and four others were together in Tarboro, N. 0. All bad been drinking, and Pippen was drunk. Defendant bad an automobile and agreed to carry Pippen to bis borne in Princeville, just across tbe Tar River, if be would furnish the gas. They stopped at a filling station in Princeville and purchased five gallons of gas. Defendant de*522manded that Pippen purchase ten gallons. Everett protested that that was too much for such a short trip.

From that point on the evidence is in sharp conflict. The State’s testimony tends to show that as Everett went out of the filling station defendant grabbed him, jerked him around and cut him in the face. The testimony favorable to defendant tends to show that Everett made an unprovoked and persistent assault on defendant, and defendant did nothing more than try to ward off the assault and get away without suffering any injury.

There was a verdict of guilty. The court pronounced judgment on the verdict and defendant appealed.

*Attorney-General McMullan, Assistant Attorney-General Moody, and Gerald F. White, Member of Staff, for the State.*

*Weeks & Muse for defendant appellant.*

Barnhill, C. J.

The court below in its charge instructed the jury in part as follows :

> “The burden of proof as to the plea of self-defense is on the defendant to satisfy the jury, not beyond a reasonable doubt nor by the greater weight of the evidence, but simply to satisfy the jury that he was fighting in his own self-defense and used no more force than was reasonably necessary for his protection.”

This instruction must be held for error which entitles the defendant to a new trial.

It is true that in homicide cases when it is made to appear that defendant intentionally assaults another with a deadly weapon, inflicting a wound which proximately causes the death of the person assaulted, the law raises certain presumptions of fact which, nothing else appearing, require a verdict of murder in the second degree. And upon the admission or proof of such facts, the law casts upon the defendant the burden of proving facts and circumstances which will rebut the presumption of malice or which will excuse the homicide altogether on the grounds of self-defense, accident, or misadventure. But we need not now enter into a discussion of the philosophy underlying that rule for it has no application here.

In criminal prosecutions a defendant’s plea of not guilty clothes him with a presumption of innocence which continues to the moment the State offers evidence sufficient to rebut the presumption and to show beyond a reasonable doubt that the defendant in fact committed the crime charged, or some lesser degree therof. *S. v. Carver.*213 N.C. 150, 195 S.E. 349. Consequently the burden of proof rests on the State throughout the trial, even when defendant’s evidence tends to show that he acted only in his *523own necessary self-defense. *S. v. Carver, supra; S. v. Gibson,*196 N.C. 393, 145 S.E. 772 ; *S. v. Redditt,*189 N.C. 176, 126 S.E. 506; *S. v. Revels,*227 N.C. 34, 40 S.E. 2d 474; 6 C.J.S. 975, sec. 114.

Defendant’s evidence tending to show that be did not commit an assault upon, or willingly engage in an affray with, tbe prosecuting witness, but only did wbat reasonably appeared to bim to be necessary to ward off or repel an assault being made on bim is offered to rebut, impeach, or discredit tbe evidence offered by tbe State or to “muddy tbe waters” so as to create a reasonable doubt as to bis guilt.

“If the defendant’s evidence raised a reasonable doubt as to bis guilt, or if sucb evidence caused to linger in the minds of the jury from the original presumption of innocence a reasonable doubt as to bis guilt, or if upon all the evidence the jury entertained a reasonable doubt as to bis guilt the defendant was entitled to a verdict of not guilty, altbougb the defendant’s evidence may not bave satisfied the jury of matters in justification or excuse.” *S. v. Carver, supra; S. v. Murphrey,*186 N.C. 113, 118 S.E. 894.

Tbe rule is tbe same as in cases where tbe defendant undertakes to prove an alibi. *S. v. Minton,*234 N.C. 716, 68 S.E. 2d 844; *S. v. Bridgers,*233 N.C. 577, 64 S.E. 2d 867.

There are, of course, certain exceptions to tbe rule that tbe burden in a criminal prosecution never shifts to tbe defendant as when a defendant seeks to bring himself within an exceptive provision of a criminal statute. But the general rule and not tbe exceptions must be applied here.

To follow any other rule would deprive tbe defendant of tbe presumption of innocence and tend to confuse. Just when does tbe burden shift? Does defendant’s reliance on evidence tending to show be fought only in bis own necessary self-defense altogether relieve tbe State of any-burden? Must tbe jury decline to consider tbe evidence of self-defense on tbe primary issue of guilt ? A charge which attempted to answer these questions would be, of necessity, inconsistent and conflicting.

Here tbe State must prove that tbe defendant willingly engaged in an affray with, or unlawfully assaulted, tbe prosecuting witness and that in so doing be used a deadly weapon. Proof of these facts rebuts any suggestion of self-defense. To say that tbe burden then shifts to tbe defendant to prove that be fought only in bis own necessary self-defense is too illogical to find favor with this Court. Tbe State must first prove bis guilt, and then be must prove bis innocence. Sucb is not tbe law in this jurisdiction.

New trial.