¶1 (After stating the case as above.) If the *610 Judge in giving the instruction intended to tell the jury that taking the oral testimony delivered by the witnesses into consideration, if their minds were brought to an equipoise, and neither side preponderated, then the force and effect given by the statute to the written examination must turn the scale and give the State a verdict, the correctness of the charge will not admit of question ; and such we must suppose to have been the understanding of the jury. If, however, the Court meant that putting the written examination and testimony of witnesses together, and considering the entire evidence, if there was no preponderance either way, the verdict must be against defendant, the correctness of the charge would not be so clear. But even upon this construction of the charge, as some effect must be allowed the examination under the statute beyond its value as mere evidence, we are disposed to concur with the Judge, that it must prevail. State v. Bennett, 75 N. C. 305. There is no error. This will be certified to the end that further proceedings may be had according to law.
¶2 No error. Judgment affirmed.