State v. Barrington.

*822 Hoke, J., after stating the case: The authorities of this State are to the effect that the fact that the offense charged was committed in another 'State is available under the plea of not guilty. They have also established that such fact is a matter of defense and the burden of proving it is on the defendant. State v. Mitchell, 83 N. C., 674; State v. Buchanan, 130 N. C., 660. There was no error, therefore, in the charge of the court below on this aspect of the case. The judge was correct also in refusing to give the defendant’s prayer, that if the evidence was believed the jury should render a verdict of not guilty. The copy of the survey, annexed by consent as a part of the record, was not in evidence on the trial, and if it had been the greatest effect that could have been given it would be to hold that the line thereby established was in law the correct boundary line between the States. Where such lime was placed by the survey is a question of fact which could only be determined by the jury. The prosecutor testified on his examination in chief that the fight took place in North Carolina and the cross-examination did not disclose such a connection between the survey spoken of by the witness and the official survey, as to justify the court in ignoring the positive statement of the witness that the offense was committed in North Carolina. The case was properly submitted to the jury under a correct charge, they have decided the matter against the defendant and the court holds there was No Error.