¶1 1. ¥e think the Solicitor had a right to-comment on the fact that the defendant after having sworn Whitley as a witness declined to examine him. It' does not appear that his comments were in any way improper. It may be that no inference against the defendant should have been drawn from a circumstance which seems trivial enough, but the jury alone could pass on its weight.
¶2 2. The Judge spoke inaccurately and without due care when he said to the jury, that in “ passing on the credibility of the witness, Smith, they shall consider that it is a rule of law, a presumption that men testify truly and not falsely.” An expression somewhat similar was commented on in State v. Smallwood, 75 N. C. 104. A Judge may-properly instruct the jury, that the law presumes, and that they should presume, that a witness' speaks the truth, unless there be some-reason for thinking otherwise. But this is not a .presumption of law in a technical sense, but of fact, being drawn from our experience of human veracity. Its force depends upon a number of circumstances which the jury must consider before acting on it. It has no artificial force. 1 Starkie Ev. 10. Ed. 821. In 2 Wharton Ev. § 1287, the subject is-treated of with ability. Probably the Judge meant what is above expressed, and it is not probable that his inaccuraqy of expression misled the jury. If it had been called to his-attention at the time he would probably have corrected the inaccuracy. For these reasons we should he very reluctant, to grant a new trial, if this were the only exception.
¶3*522 3. We think also the Judge erred in saying, — “Suppose witness Smith did strike the defendant first, and that defendant drew his pistol in self-defence, although he did not cock it or point it at witness Smith, it would amount to the excessive use of force, and in that aspect they should convict him.” The error is plain. The same act cannot be in self-defence and also an excess. Moreover, it was for the jury to say whether a force was used in excess of what was necessary in defence.
¶4 Error.
¶5 Per Cumam. Venire de novo.