State v. . Godwin
42 S.E.2d 617
N.C.
1947
Check Treatment
Stacy, C. J.

The validity of the trial, and not the guilt or innocence of the accused, is the question presently to be considered.

The peremptory character of the court’s instructions, certainly those in the first two cases, would seem to be in excess of approved practice, where, as here, there is no admission or presumption calling for explana *452 tion or reply on the part of the defendant. S. v. Estes, 185 N. C., 752, 117 S. E., 581; S. v. Singleton, 183 N. C., 738, 110 S. E., 846; S. v. Hill, 141 N. C., 769, 53 S. E., 311. It is only in rare instances that a verdict may be directed for the State in a criminal prosecution. S. v. Ellis, 210 N. C., 166, 185 S. E., 663. “The plea of not guilty disputes the credibility of the evidence, even when uncontradicted, since there is the presumption of innocence, which can only be overcome by the verdict of a jury.” S. v. Riley, 113 N. C., 648, 18 S. E., 168. See S. v. Dickens, 215 N. C., 303, 1 S. E. (2d), 837, and cases there cited.

Where a defendant pleads not guilty to the charge contained in the warrant or bill of indictment to which he is required to answer, there comes to his aid the common-law “presumption of innocence” which goes with him throughout' the trial and stands until overcome by proof or an adverse verdict. S. v. Herring, 201 N. C., 543, 160 S. E., 891; S. v. Boswell, 194 N. C., 260, 139 S. E., 374. His plea of traverse cases upon the State the burden of establishing his guilt, not merely to the satisfaction of the jury, but to a moral certainty or beyond a reasonable doubt. S. v. Singleton, supra.

Moreover, it appears from the cross-examination of the witness that the State’s cáse must lean more or less upon a “broken reed,” as it were, since it was brought about by persistent entreaty and duplicity. In this respect, it is quite unlike S. v. Murphrey, 186 N. C., 113, 118 S. E., 894. The witness admits that, in the first case, he misled the defendant and was able to leave with a pint of liquor only after swapping drinks with her — his own act he imputes to righteousness, hers to unrighteousness; and in the second case he told her a story. Indeed, his testimony in the second case would seem to burden credulity somewhat. At any rate, the jury should have been allowed to give the defendant the benefit of any reasonable doubt. S. v. Harris, 223 N. C., 697, 28 S. E. (2d), 232. “Reasonable doubt, in the humanity of our law, is exercised for the prisoner’s sake, that he may be acquitted if his case will allow it, but it is never applied for his condemnation.” S. v. Starling, 51 N. C., 366. No mention is made of any sale in the cross-examination.

Little need be said about the instruction in the third case. Even if standing alone, it could be upheld, which is unconceded, we think the verdict here was necessarily influenced by the results in the first two cases, since it appears to have followed as a matter of course. The judgment in this case was suspended on condition.

Full liberty of consideration on the part of the jury would seem to be the defendant’s due in all three cases. Suum cuique tribuere.

New trial.