State v. . Spivey
153 S.E. 255
N.C.
1930
Check Treatment
Stacy, C. J.,

after stating tbe case: Tbe evidence is amply sufficient to carry tbe case to tbe jury. It points unerringly to tbe prisoner’s guilt and apparently excludes every reasonable hypothesis of bis innocence. S. v. McLeod, 196 N. C., 542, 146 S. E., 409; S. c., ante, 649. Tbe State’s showing in tbe instant case is fully as strong, if not stronger, than tbat in S. v. Wilcox, 132 N. C., 1120, 44 S. E., 625, where a con *658 viction was sustained. The following authorities may also be cited in support of the court’s action in overruling the defendant’s demurrer to the evidence: S. v. Allen, 197 N. C., 684; S. v. McKinnon, 197 N. C., 576; S. v. Lawrence, 196 N. C., 562, 146 S. E., 395; S. v. Melton, 187 N. C., 481, 122 S. E., 17; S. v. Young, 187 N. C., 698, 122 S. E., 667; S. v. Griffith, 185 N. C., 756, 117 S. E., 586; S. v. Bynum, 175 N. C., 777, 95 S. E., 101; S. v. Matthews, 162 N. C., 542, 77 S. E., 302; S. v. Taylor, 159 N. C., 465, 74 S. E., 914.

The following excerpt, taken from the charge, forms the basis of one of defendant’s exceptive assignments of error, which he stressfully contends entitles him to a new trial.

“He admits that she came to her death on account of a blow on the base of her skull inflicted by some unknown person, that is, he admits that she was struck on the base of the skull with an ax or some other deadly weapon, and that that brought about her death.”

The prisoner complains at this instruction because it represents him as making an admission, when, in fact, no admission was made by him and no evidence offered in his behalf.

The court was here stating the contentions of the parties, and what he meant to say, and, we apprehend, did say, within the necessary understanding of the jury, was that, according to the prisoner’s own statement, made that night, he heard the blow which caused her to be felled by some unknown person, for, in this immediate connection, the court added: “but (the prisoner) contends that there are no facts or circumstances which show that he was the person that inflicted the blow, and that he is not guilty.” We perceive no error in the contention, thus given, when considered in its immediate connection and in the light of the whole charge. S. v. Parker, ante, 629.

The remaining exceptions, all of which have been examined with scrutiny and care, are equally untenable, and present no new question of law or one not heretofore settled by a number of decisions.

The fact that the defendant offered no evidence, but relied upon the legal presumption of innocence and the weakness of the State’s case, is not to'be taken against him. C. S., 1799. The presumption of innocence which surrounds a defendant on his plea of “not guilty,” goes with him throughout the trial and is not overcome by his failure to testify in his own behalf. He is not required to show his innocence. The burden is on the State to prove his guilt beyond a reasonable doubt. S. v. Singleton, 183 N. C., 738, 110 S. E., 846. And while his absence from the witness stand or his failure to testify, may be a circumstance not without its moral effect upon the j’ury, of which every lawyer appearing for a defendant is always conscious, yet this fact, as a matter of law, *659 creates no presumption against bim, and is not a proper subject for comment by tbe solicitor in arguing tbe case to tbe jury. S. v. Tucker, 190 N. C., 708, 130 S. E., 720.

Tbe record discloses no error committed on tbe trial, bence tbe verdict and judgment will be upheld.

No error.