State v. . Ellison

Devin, J. The principal assignment of error brought forward in defendant’s appeal relates to the judge’s charge to the jury. The instruction of which he complains was bottomed upon the view that the defendant had admitted that he killed the deceased with a deadly weapon. The judge so stated to the jury, and instructed them to consider the ease from the standpoint of such admission as constituting a predetermined fact. If the court correctly interpreted the testimony of the defendant, the exception is without merit. The defendant testified on the stand that he fired .three shots with a shotgun loaded with N o. 8 shot at the deceased at a distance of 94 feet, and that the deceased fell 29 feet from the place where shot, but we do not find in the record any formal admission or testimony from the defendant that the shots he fired caused the death of the deceased. The able trial judge was doubtless influenced in his view by the expression on the part of the defendant appearing in the record: “I do not mean to say after I killed him he stuck the rifle up in the ground.” But this was on cross-examination and evidently in response to questions as to the circumstance and cause of the rifle of deceased being stuck up in the ground, and apparently the word “killed” was derived from the language of the questioner and incorporated in the statement of the witness in the process of reducing the cross-examination to narrative form for the record. Also the statement quoted was negative in form and indicated a negative response to the question whether he meant the deceased had stuck the rifle in the ground after he was killed. The defendant had, when arraigned, pleaded not guilty. So far as the record shows he did not change that plea or interpose formal plea of self-defense. From an examination of the record we reach the conclusion that the trial judge misinterpreted the testimony of the defendant and was in error in stating to the jury that the defendant had admitted that he killed the deceased with a deadly weapon, to wit, a shotgun. If so, it necessarily follows there was prejudicial error in the instruction to the jury based on that view. In S. v. Redman, 217 N. C., 483, *631 8 S. E. (2d), 623, where a similar question was raised, it was said': “The error is harmful, therefore, for the reason that the court, acting under the misapprehension that the killing was admitted, failed to instruct the jury properly in respect to the burden of proof.” The statement by the trial judge that the defendant had admitted that he had killed the deceased with a deadly weapon dispensed with proof of that material fact and infringed upon the exclusive province of the jury. S. v. Maxwell, 215 N. C., 32, 1 S. E. (2d), 125. While the evidence offered by the State would seem very strongly to support the view that the shots fired by the defendant caused the death of the deceased, but in the absence of an admission by the defendant, that was a fact for the jury to find. The credibility of the witnesses, the weight to be given their testimony, the conclusion to be drawn therefrom were, matters exclusively for the jury. Notwithstanding the apparent strength of the State’s evidence, the jury had the power not to accept it as sufficient proof. Since the early days of statehood the principle has been imbedded in our jurisprudence that the trial court shall not give an opinion to the jury whether a fact has been sufficiently proven, “that being the true office and province of the jury.” G. S., 1-180; Laws 1796, chapter 452; S. v. Blue, 219 N. C., 612, 14 S. E. (2d), 635. In the absence of an admission to that effect the burden of proof was upon the State to show from the evidence beyond a reasonable doubt that the shots admittedly fired by defendant caused the death of the deceased. As was observed by Justice Barnhill in writing the opinion in S. v. Redman, supra: “While there is sufficient evidence in the record to sustain a finding by the jury that defendant killed the deceased with a deadly weapon, the jury has not been permitted to weigh and consider this evidence under instructions that the burden of so showing rested upon the State.” The instruction to the jury that the defendant had admitted he intentionally killed the deceased with a deadly weapon, relieved the State of the necessity of proving that fact. This imposed upon the defendant the burden of showing mitigation or self-defense without requiring the State, as a prerequisite, to prove beyond a reasonable doubt the intentional killing by defendant of the deceased with a deadly weapon. While the admission or proof of an intentional killing of a human being with a deadly weapon raises presumptions against the slayer that the killing is both unlawful and done with malice, in the absence of an admission by the defendant that he killed the deceased, the intermediate steps necessary to invoke the aid of these legal presumptions must first be taken by the State. S. v. DeGraffenreid, 223 N. C., 461, 27 S. E. (2d), 130; S. v. Gregory, 203 N. C., 528, 166 S. E., 387. The fact that counsel for defendant in arguing the case to the jury admitted he had killed the deceased with a deadly weapon may not be *632 regarded as such an admission on the part of the defendant as would relieve the State of proving that essential fact. S. v. Baker, 222 N. C., 428, 23 S. E. (2d), 340; S. v. Redman, supra. We conclude that the defendant’s exception to the court’s instruction to the jury, for the reasons herein stated, must be sustained, and a new trial awarded. New trial.