195 S.E. 349 | N.C. | 1938
The defendant was convicted of an assault with a deadly weapon upon a bill of indictment charging a violation of C. S., 4214, which reads: "Any person who assaults another with a deadly weapon with intent to kill, and inflicts serious injury not resulting in death, shall be guilty of a felony and shall be punished by imprisonment in the State Prison or be worked on the county roads for a period not less than four months nor more than ten years."
The defendant entered a plea of not guilty, and in the course of his testimony admitted that he shot the prosecuting witness, Harrison Wilson, with a pistol, but contended that what he did he did in self-defense.
From judgment of imprisonment the defendant appealed to the Supreme Court assigning as error, inter alia, the following excerpt from the charge of the court:
"The court charges you as a matter of law where one admits in a case of this kind that he used upon another as named in the bill of indictment a deadly weapon, and the court charges you that a pistol is a deadly weapon, then the law says the duty devolves upon him to show, not beyond a reasonable doubt, not by the greater weight of the evidence, but to the satisfaction of the jury, circumstances in mitigation of his conduct that will reduce the offense from that charged in the bill of indictment, to wit, assault with a deadly weapon with intent to kill, to that of guilty of an assault with a deadly weapon, or relieve him from the liability of any offense whatever and render a verdict of not guilty. *152 The defendant admits he shot the prosecuting witness, therefore it is his duty to satisfy you, not by the greater weight of the evidence nor beyond a reasonable doubt, but to satisfy you he was justified in so doing."
This assignment of error is well taken. In S. v. Redditt,
The Attorney-General in his brief admits that the charge complained of is in contravention of the principle laid down in Redditt's case, supra, but contends that the error was harmless since the defendant was not convicted of an assault with intent to kill, a felony, but was convicted only of an assault with a deadly weapon, a misdemeanor. With this contention we cannot concur.
That portion of the charge reading "The defendant admits he shot the prosecuting witness, therefore it is his duty to satisfy you, not by the greater weight of the evidence nor beyond a reasonable doubt, but to satisfy you he was justified in so doing," cast upon the defendant the burden of proving to the satisfaction of the jury matters in justification or excuse before he could successfully ask for a verdict of not guilty. Such is not the law. The defendant's plea of not guilty raised a presumption of his innocence, and this presumption continued throughout all stages of the trial until removed by a verdict of guilty. S. v. Murphrey,
The rule in certain homicide cases that where the defendant admits, or it is proven, that he slew the deceased with a deadly weapon, there is a presumption of guilt of murder in the second degree and the burden is cast upon the defendant to show to the satisfaction of the jury matters in mitigation, excuse, or justification, S. v. Willis,
New trial. *153