State v. Hill.

*771 Hoke, J., after stating tbe case: The defendant, by exceptions properly, noted, assigns for error, first, that on the testimony he was entitled to have his plea of self-defense passed on by the jury; second, that in any event, the court erred in directing a verdict against him. We are of opinion that both points are well taken. It is true, as a general rule, or under ordinary conditions, that the law does not justify or excuse the use of a deadly weapon to repel a simple assault. This principle does not apply, however, where from the testimony it may be inferred that the use of such weapon was or appeared to be reasonably necessary to save the person assaulted from great bodily harm — such person having been in no default in bringing on or unlawfully entering into the difficulty. This was held in Matthews’ case, 18 N. C., 523. In such case a defendant’s right of self-defense is usually s question for the jury; and it is not always necessary to the existence of this right that the first assault should be with a deadly weapon. It may, in exceptional instances, arise when the fierceness of this assault, the position of the parties and the great difference, in their relative sizes or strength, show that the danger of great bodily harm is imminent. This was held in Hough’s case, 138 N. C., 663. Applying the principle of these two decisions to the case before us, we hold that the defendant’s claim of self-defense should.have been submitted to a jury. Of course, we express no opinion on the merits. There is evidence of the State, full and ample, if believed, to justify a verdict of guilty, and the jury may reject the defendaht’s version altogether, but it is for them to decide. And in no event, in a criminal case, is tire judge permitted to direct a verdict against the defendant. When a plea of not guilty has been entered and stands on the record undetermined, it puts in issue not only the guilt, but the credibility of the evidence. As is said in Riley’s case, 113 N. C., 651, “the plea of not guilty dis *772 putes the credibility of the evidence, even when, uncontra-dicted, since there is a presumption of innocence which can only be overcome by the verdict of a jury.” And as said in Dixon's case, 75 N. C., 275: “In this verdict the jury must not only unanimously concur, but must be left free to act according to the dictates of their own judgment. The final decision on the facts rests with them and any interference by the court tending to influence them into a verdict against their convictions is irregular and without the warrant of law.” And this has been held to be the correct doctrine, though guilt may be inferred from the defendant’s own testimony, as in Green’s case, 134 N. C., 658. Where there is no evidence tending to establish the plea of self-defénse, and in any aspect of the testimony the defendant’s guilt is manifest, the judge may tell the jury “if they believe the evidence,” or as suggested in Barrett’s case, 123 N. C., 753, “if they find the facts to be as testified,” etc., “they will render a verdict,” etc. But this verdict must be rendered by them, and, in no criminal case, can it be directed by the judge. There is error and a new trial is awarded. New Trial.