After I started back home I came on back up this way and saw Charlie over there in the garden with his mammy. I had not seen Charlie anywhere or at any time that day. I hadn't seen him before then. I didn't know he was working over there. When I saw him I went over there to ask him about this racket they had and asked him did he hit that boy with an axe, and on the spur of the moment — he never said a word that I could understand, and I took it for granted that he had hit my boy with an axe. I shot him — that is what I done, flew all to pieces — I shot him because he didn't make me no answer. I had not intended to shoot or kill anybody up to this time; never had no intention whatever. Up to this time *Page 33 me and Charlie had been neighbors and good friends. . . . After the shooting, when I came to myself, I was there in the road, going back toward home. I don't remember how many times I shot. After the shooting I went back up home and left my gun at home."

The following excerpt from the charge is made the basis of an exceptive assignment of error: "But the court charges you, gentlemen of the jury, your verdict will be one of two: Your verdict will be `guilty of murder in the first degree,' as charged in the bill of indictment, or `guilty of murder in the second degree,' and in no event will your verdict be `guilty of manslaughter,' or `not guilty.'"

We are constrained to sustain this assignment of error. The defendant had pleaded not guilty and the presumption of innocence followed him until removed by the verdict of the jury. While the court may have been justified in instructing the jury that if they found the facts to be as testified by the defendant, or if they believed the testimony of the defendant himself, they could not return a verdict of guilty of manslaughter or of not guilty, the verdict was required to be predicated upon the findings of fact by the jury from all of the evidence in the case — the credibility of the testimony being for the jury to determine. Under our system of trial the judge is prohibited from expressing an opinion as to defendant's guilt.

"Rev. Code, ch. 31, sec. 130 (C. S., 564), provides that `no judge, in delivering a charge to the petit jury, shall give an opinion, whether a fact is fully or sufficiently proved, such matter being the true office and province of the jury.' This statute is but in affirmance of the Constitution, Art. I, secs. 13-17, and the well-settled principles of the common law, as set forth in Magna Carta. The jury must not only unanimously concur in the verdict, but must be left free to act according to the dictates of their own judgment. The final decision upon the facts rests with them, and any inference by the court tending to influence them into a verdict against their convictions is irregular and without the warrant of law. The judge is not justified in expressing to the jury his opinion that the defendant is guilty upon the evidence adduced." S. v. Dixon,75 N.C. 275.

For error assigned there must be a

New trial.

STACY, C. J., dissents.

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