State v. Freeman.

Eueohbs, J. Tbe defendants, Robert Ereeman, Bud McKenzie, Henry Ereeman, and Sam McLeod, were indicted for an affray. It seems, from tbe record, that all four of tbe defendants were put on trial, and tbe jury, “for tbeir verdict, say they find tbe defendants guilty of simple assault. Judgment: Defendants fined fifty dollars eacb, and eacb pay one-fourth of tbe costs. (State accepted a verdict of not guilty as to defendants Sam McLeod and Henry Ereeman.)” And it seems that tbe defendants Henry Ereeman and A. A. McKenzie appealed. It also appears, from tbe record sent up, that defendants’ counsel made up a statement of tbe case on appeal, service of which was accepted by tbe Solicitor on tbe 18th day of April, 1900. There also appears to be a counter case made by tbe Solicitor, which was never served, nor was service accepted by defendants, or tbeir attorneys, but on tbe back of which is marked, “Eiled May 28, 1900.” Tbe counter case not having been served, or acknowledged, and not having been filed until tbe 28th of May, more than a month after service was accepted by defendants, tbe counter case on appeal was too late, even if we were to bold that tbe word “Eiled” of itself was sufficient to comply with tbe statute (sec. 550 of Tbe Code). We will therefore have to be governed by the case made by the defendants; and, as we have to be governed by tbe defendants’ statement of tbe case, we will say that, while there is some difference in tbe state *548 ment of facts in the two oases, tibere is very little difference in that part of them upon which our opinion is based. The “case” states that “all the evidence in the case tended to show that the defendants were under the influence of liquor, and while returning from a fishing party along the public road, in company with various other parties, engaged in a friendly scuffle, when the defendant A. A. McKenzie caught, his foot under a pole and fell, and the defendant W. R. McKenzie also fell over the same pole, and fell on the defendant McKenzie. One Sewell Freeman, who- was standing near by, immediately caught the defendant Freeman by the aim, lifted him up ,and carried him into a lot about twenty yards away, when the defendant picked up a small stick from the ground, but did not offer or attempt to use the stick. The defendants were introduced, and testified in their own behalf. They admitted that they engaged in a scuffle, but declared that they were not mad, and that the engagement was entirely friendly. Ilis Honor, among other things, charged the jury that, the defendants having admitted that they were in a scuffle, the burden shifted from the State, and the defendants must satisfy the jury that they were not mad and fighting, and that the encounter was a friendly one. To this part of his Honor’s charge, defendants excepted.” The charge in this bill is an affray by fighting together in a public place. There must have been a fighting — an affray- — before there co-uld be a criminal offense. State v. Crow, 23 N. C., 375. This must be admitted by the defendants, or found from the evidence by the jury, and the burden is on the State. Every man is presumed to be innocent until he confesses his guilt, or is found guilty by a jury of his country. The defendants did not confess their guilt. Indeed, they denied it. It can not be that parties “engaged in a friendly scuffle” are guilty of an affray, and this is all that they admitted. We see very *549 little, if any, evidence of an affray. But, if there had been ever so much, it was still for the jury to say whether there was an affray or not. State v. Baker, 65 N. C., 332. That is, whether the defendants were mad and fighting or not. We know that the law is that where two or more parties are indicted for-an affray, and the affray (the criminal offense) is admitted, or found from the evidence, then the burden is shifted, and thrown upon any one of the parties engaged in the affray to justify or excuse himself from guilt. But this only takes place after the offense is established. To apply this rule before a breach of the peace has been' established would be to compel the defendant to prove himself innocent of the charge preferred against him by the State. This is in violation of the constitutional rights of every freeman, and is not the law. If the Judge thought there was enough evidence to carry the case to the jury, he might have properly charged them that if they found, from the evidence, that the defendants were mad and were fighting, and not scuffing (with proper explanation as to what was a fight — an affray), then the burden changed, and if any or either one of them was not guilty, the burden was on him to show he was not. If it was only a friendly scuffle, it was a pretty dear one to them — $50 each, and one-fourth each of the costs. There was error, for which there must be a new trial. Error.