State v. Lackey

251 N.C. 686 | N.C. | 1960

Winbokne, C. J.

Among the assignments of error presented by defendant is that based: upon exception to the closing instruction given by the court to the jury in this language: “The court further instructs you that if you find the facts to be as all of this evidence tends to show and you so find those facts beyond a reasonable doubt, then it would be your duty to return a verdict of guilty as charged.”

Decisions of this Court indicate that the exception is well taken. See S. v. Godwin, 227 N.C. 449, 42 S.E. 2d 617, where as here there is no admission or presumption calling for explanation or reply on the part of defendant. There the court said that the peremptory character of the instruction, almost identical with the above, would seem to be in excess of approved practice. And it is there declared that it is only in rare instances that a verdict may be directed for the State in a criminal prosecution.

Moreover, “the plea of not guilty disputes the credibility of the evidence, even when unoontradicted, 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 also S. v. Blue, 219 N.C. 612, 14 S.E. 2d 635, and cases cited. And this has been held to be the correct doctrine, though guilt may be inferred from the defendant’s own testimony as in S. v. Green, 134 N.C. 658, 46 S.E. 761.

For error thus appearing there must be a

New trial.