59 S.E. 1048 | N.C. | 1907
CLARK, C. J., dissenting, arguendo.
The court instructed the jury that, if they believed (571) the evidence, they would return a verdict of guilty. To this instruction the defendant excepted, and we think the exception is well taken. Section 535 of the Revisal provides that "No judge, in giving a *414
charge to the petit jury, either in a civil or a criminal action, shall give an opinion whether a fact is fully or sufficiently proven, such matter being the true office and province of the jury; but he shall state in a plain and correct manner the evidence given in the case and declare and explain the law arising thereon." This section of the Revisal has been on the statute books of this State since the year 1796 (Code, sec. 413), and has often been construed by this Court in relation to just such a charge as was given in this case. In S. v. Matthews,
The expression, "if the jury believe the evidence," has been often condemned by this Court, and we have repeatedly held that the proper way to instruct the jury is that, if they find from the evidence a certain fact or facts to be true, then the defendant is guilty, or not guilty, as the case may be. Sossaman v. Cruse
The evidence in the case before us is indefinite and uncertain, and the facts to be found therefrom and the inferences to be drawn were matters peculiarly within the province of the jury. If there was any phase of the evidence from which the jury might infer that the defendant was not guilty, the defendant was entitled to go to the jury on it. S. v. Lilly,
New trial.