The judge told the jury, in substance, after cautioning them (815) against any possible prejudice they might have against prisoner on account of his religious views,* and after stating the nature of the crime and the general principles of law applicable, "that the crime of rape was committed when a man had unlawful carnal connection with a woman, forcibly and against her will; that it was admitted by the prisoner that he had carnal connection with the prosecutrix, and that it was unlawful — that is, that he was not married to her — and that the only inquiry for them to make was, whether or not this carnal connection was had by force and against her will; that to constitute rape, the force used must be such as to entirely overpower the resistance of the woman; that she must resist to the last and the utmost of her power, unless she was prevented from resisting by fear; that fear might take the place of force, but in order to do so it must be such fear as paralyzed the will of the woman, and it must be a fear of present injury, to be inflicted then and there, and it must be fear of death, or great bodily harm; that the only direct and positive evidence of the manner in which the carnal connection was had, was the evidence of the prosecutrix and the prisoner; that the prosecutrix had testified that it took place by force, and also by fear induced by the threats of the prisoner, and that it was against her will; that prisoner had testified that there was no force used and no threats made; *Page 562 that there was no fear, and it was with the consent of the prosecutrix; that all the other testimony in the case was only competent, and only used by them, as bearing on the question, whether this admitted carnal intercourse took place with the consent of the prosecutrix, or whether it was had by force, or such fear as he had before described, and against her will; that to make it rape, there must be no degree of consent (816) or willingness to its perpetration, on the part of the prosecutrix; that it must be utterly and totally against her will; that if she was at first unwilling and resisted, but afterwards yielded to a show of force, and in the least degree consented before the perpetration of the act, it would not be rape; that they were the sole judges of the weight of the testimony, and of whom and what they would believe; that to enable them the better to judge of the credibility, of witnesses, they were produced and examined before them, that they might see their demeanor on the stand; that in weighing the testimony of the prisoner and the prosecutrix, it was proper for them to consider, also, the interest which they respectively had in the verdict; that the prisoner had the highest interest that a man could possibly have in any issue — his life — and that the prosecutrix had an interest as great as the prisoner, to-wit, to sustain her character for chastity. He then read to the jury full notes of all the testimony in the cause, and told them that he did this to refresh, and not control, their recollection of the testimony; that it was their duty to remember the testimony, and they ought to rely, in the last resort, on their own recollection."
He then told the jury, "If, from all the testimony in the cause, they were convinced beyond a reasonable doubt that the carnal intercourse, admitted to have taken place between the prosecutrix and the prisoner, was had by force, or such fear as he had described to them, and against the will of the prosecutrix, then they ought to find the prisoner guilty; if they were not so convinced, they ought to find him not guilty."
The prisoner's counsel stated, in their argument, that they would not ask his Honor, in writing, for any special instructions, but did ask his Honor to charge the jury that the credibility of the prosecutrix must be left to the jury upon circumstances of fact which attended this case; for instance, that if the witness be of good fame, if she presently (817) discovered the offense, if the party accused fled for it — these, and the like, are concurring circumstances which give greater probability to her evidence; but, on the other side, if she concealed the injury for any considerable time after she had an opportunity to complain; if the place where the act alleged to have been committed was where she might have been heard, and she made no outcry, these, and the like circumstances, are to be considered by the jury in determining her credibility. *Page 563
His Honor did not give these instructions, not because they were not in writing, but because he considered them unnecessary and substantially embraced in the charge he gave.
The jury returned a verdict of guilty, and the prisoner moved for a new trial, and assigned as ground therefor the following:
1. For that his Honor did not, in charging the jury, eliminate the material facts of the case, array the state of facts on both sides, and apply the principles of law to them, so that the jury might decide the case according to the credibility of the witnesses and the weight of the evidence.
2. For error, because his Honor, in submitting to the jury the credibility of the prosecutrix's testimony, did not instruct the jury as to whether any particular value or any value at all, ought to be given to the fact that the prosecutrix either made or did not make outcry at the time of the alleged rape; whether she concealed or did not conceal the injury for any considerable time after she had opportunity to complain; whether the act was done in a place where other persons might have heard her cries if she made any; whether the place where the injury is said to have occurred was such as to render the perpetration of the offense there probable or improbable; whether the prisoner, after the alleged commission of the offense, had not means or opportunity of flight and did, (818) or did not flee. The court overruled the motion.
His Honor then pronounced judgment of death, from which the prisoner appealed.
* He was a Catholic priest. In this State it has ever been the duty of the judge presiding in courts over jury trials to give the jury appropriate instructions as to the law applicable to the issues on trial; he is not allowed to "give an opinion whether a fact is fully or sufficiently proven — such matter being the true office and province of the jury," but he is expressly required by the statute (Code, sec. 413) to "state in a plain and correct manner the evidence given in the case and declare and explain the law arising thereon." This statutory requirement, enacted first, substantially as it now appears, in 1796, has always since then been regarded as imposing on the judges to whom it applied a very important, necessary and, in many cases, difficult duty to discharge properly. The purpose of it is to have the law made intelligible to the jury — to have them on such trials instructed by the court clearly, explicitly and correctly as to the law bearing upon the evidence submitted to them as a whole, and upon every *Page 564 material aspect of it, whether there be many or few such aspects, and likewise to have the court, while it carefully abstains from the slightest expression of any opinion as to the weight of the evidence, or that a fact is or is not fully or sufficiently proven, help the jury by a "plain and correct statement of the evidence to apprehend, comprehend, (819) appreciate, apply and determine" the weight of it properly. Such statement of the evidence should embrace an explanation of its nature, purpose, bearings and groupings and freeing it from possible misapprehension occasioned by inadvertence, mistake or the undue zeal of counsel in their arguments to the jury, or otherwise.
The office of the judge in such connection is to help the jury to see the evidence bearing on the issue and the law arising thereon clearly, stripped of redundant, improper and merely confusing matters and things, whether of evidence, argument of counsel, or law.
Jurors are generally plain, honest, sensible men, unskilled in the law and not much accustomed to nice discriminations and distinctions in matters of evidence and fact. They need and require the superintendence, guidance and help of a learned and just judge in reaching correct conclusions. Indeed, experience has shown that without them jurors seldom render intelligent and satisfactory verdicts. Hence the duty of the court on jury trials — particularly where there is much evidence, more or less conflicting, presenting several aspects of it, and it is peculiar or unusual in its nature, purpose and application — is matter of serious moment and not to be neglected or ignored. This is especially so in cases involving human life. There can be no intelligent or satisfactory trial by jury in cases of importance without a faithful discharge of such duty on the part of the court; and when it appears that the party complaining many have been prejudiced by a neglect of it, in whole or in part, this will be ground for a new trial.
An erroneous impression seems to prevail to some extent, that it is discretionary with the court whether it will or will not in any case state the evidence to the jury and "explain the law arising thereon."
This Court seems to say so, to some extent, in S. v. Morris, 10 N.C. 388, and, perhaps, there are like intimations in other cases. But (820) such cases, properly interpreted, apply only to plain cases that do not require such statement of the evidence and explanation of the law. Otherwise, they are not in harmony with a multitude of other decisions of this Court to the contrary, nor are they consistent with the plain words of the statute cited above. In S. v. Moses, 13 N.C. 452, the court, after saying that the statute "restrains the judge from giving an opinion whether a fact is fully or sufficiently proven," adds: "At the same time it imposes another duty, which is to state, in a full and explicit manner, the facts given in evidence, and declare and explain the *Page 565 law arising thereon. . . . The act must be so construed as to leave the two duties compatible with each other; for neither clause must overrule the other. The full and explicit statement of the facts required from the judge cannot mean a mere repetition from his notes of the testimony, in the order in which it was delivered; that would be a vain and empty ceremony, consuming time without conveying instruction. If the judge is to say anything, and not be a mere automaton, his statement must be such as to exhibit to the jury the nature of the plaintiff's cause of action, and of the defense in point of law, the matters of fact in issue on the record, and, also, those in dispute between the parties, upon the testimony actually given, tending to maintain, on either side, the main fact controverted in the issue. To do this, with the least prospect of affording aid to the jury, the judge is obliged to present the evidence in such a light as will divest it of all those immaterial parts that necessarily, more or less, encumber every trial, and collate the residue so as to bring it to bear, with the strength of combination, on the points in controversy. He is so to present each fact that it may have its fullest legitimate operation on the conclusion sought for. And if, on each side, the evidence is thus exhibited, it cannot but ease the labors of the jury, lead them, through the convictions of their understandings, (821) to a just determination, and give certainty and dignity to the course of justice."
In Bailey v. Pool, 35 N.C. 404, the court said: "We do not consider a judge, under the act of 1794, in delivering his charge on the facts of a case, to be a mere machine to detail to the jury the evidence just as it occurred, and in the order it occurred; but it is his duty when he does charge upon it, to collate it and bring it together in one view, on each side, with such remarks and illustrations as may properly direct their attention."
In S. v. Dunlop, 65 N.C. 288, the court again said: "We concur with the counsel for the prisoner in his view of the charge of the judge; we think it did not give that distinct and plain response to the questions raised which the statute requires. On this point, the statute is only declaratory of the common law. It is impossible to frame any general formula which can supersede the distinct application of the law to the particular alleged state of facts, or dispense, on the part of the judge, with the active exercise of his intelligence. This duty is the special duty of the judge; for this, mainly, is he required to possess ability and learning; and to evade or slight it, is to renounce the most difficult, but also the most useful and honorable duty of his office. All lawyers know that to eliminate facts, to put those which are material in their proper order, and to apply the law to them as a whole, taxes, many times, the strongest intellect, and always requires an amount of learning and practiced *Page 566 ability, which a jury is not supposed to possess, and which it is evident they cannot acquire through the bearing of any general dissertation on the law, however clearly it may be expressed. For these reasons, we think the prisoner entitled to a new trial."
In S. v. Matthews, 78 N.C. 523, it is also said: "it will be (822) seen from the manner in which we have reviewed the instructions of the able and learned judge who presided at the trial, that, in our opinion, a judge who presides at a trial in which human life is at stake, does not fully perform the duties which his office imposes on him by stating to the jury, however correctly, principles of law which bear, more or less directly, but not with absolute directness, upon the issue made by the evidence in the case. To do that only is easy and almost mechanical. We think he is required, in the interest of human life and liberty, to state clearly and distinctly the particular issues arising in the evidence, and on which the jury are to pass, and to instruct them as to the law applicable to every state of the facts which, upon the evidence, they may reasonably find to be the true one. To do otherwise, is to fail to"declare and explain the law arising on the evidence."
In S. v. Jones, 87 N.C. 547, the court declines to "inquire whether there is any error in the principal of law laid down," and grant a new trial simply on the ground that the court had not stated the evidence and explained the law arising thereon. The court say, that "in his Honor's main charge to the jury there is no pretense of an array of the facts, and therefore no application of the proposition of the law laid down to the different state of facts." Numerous cases, and particularly S. v. Rogers,93 N.C. 523, and Holly v. Holly, 94 N.C. 96, are directly and strongly to the same effect. Also, S. v. Rippy, ante, 752.
We thus cite and quote largely from several cases to show that it is the indispensable duty of the judges to observe, carefully, the statute cited, and that it is, as well, very important that they shall do so, and that a failure in such respect is ground for a new trial, when it appears that a complaining party may have suffered prejudice by such failure. This is too well settled in this State to be questioned, and we may add that such observance of duty is essential to just trial by jury, (823) in most cases. To discharge successfully such duty on the part of the presiding judge, in many cases, requires the exercise of a high order of ability, much accurate knowledge of the law and its application, of the rules of evidence, of the nature and purpose of the evidence, and its bearing and application upon the trial of the issues. In the discharge of scarcely any of his high duties is he called upon to display greater talent and judicial skill than his instructions to juries upon the law and evidence. Such duty is the more difficult because he cannot be governed in respect to it by any definite plan or formula. He must *Page 567 be governed by the nature, circumstances and evidence of each case before him. This Court has repeatedly, in the cases cited, and others not cited, pointed out, as definitely as practicable, the nature and compass of the duty and how it should be discharged. Discussing it, in S. v. Moses,supra, Chief Justice Ruffin said: "If I were to lay down a rule growing out of this act of assembly, I would say that it was, in general, this: that the weight of the evidence is for the jury; they hold the scales for that; but the nature, relevancy and tendency of the evidence it is competent for the judge, and his duty, to explain. He is not only to recapitulate the testimony, but to show what it tends to prove, and he may recapitulate it in such order and connection as to give it the effect of proving the facts sought for, if, in itself, it be sufficient for that purpose. Whether it be sufficient is the province of the jury to determine, and, by this statute, it is their exclusive province, and the judge cannot give his opinion, in aid of theirs, that it is not sufficient. But, if he is to speak at all (and this act makes it his duty to speak), it is not to be supposed that his interposition is for the sake of increasing the doubts of the jury or leaving them as they were. But this discussion of the case — fair, grave, sensible and important — may enable the jury better to decide upon the sufficiency of the proof, though deprived of the advantage of his opinion on that point." (824)
There can, therefore, be no doubt as to the imperative duty of the court in the respect mentioned on jury trials, its nature and purpose, and the manner of its proper discharge.
Now, turning to the case before us, without scrutinizing the statement of the law of rape made by him, we feel constrained to say that, in our judgment, the learned judge who presided at the trial failed to sufficiently "state, in a plain and correct manner, the evidence given in the case, and explain the law arising thereon." This appears from the instructions given and the assignment of error in respect thereto.
The prisoner's counsel, in apt time, requested the court to direct the attention of the jury to specific parts of the evidence tending to discredit the evidence of the prosecutrix and instruct them as to its nature, bearing and application. The court declined to do so "because he considered them unnecessary and substantially embraced in the charge he gave." The prisoner excepted, and afterwards assigned as error that the court "did not, in charging the jury, eliminate the material facts of the case, array the state of facts on both sides and apply the principles of law to them, so that the jury might decide the case according to the credibility of the witnesses and the weight of the evidence." Thus the exception is broad and comprehensive.
Numerous witnesses were examined, both for the State and the prisoner. The evidence was voluminous, and in very material respects, *Page 568 directly and strongly in conflict. This was particularly so as to the evidence of the prosecutrix and the prisoner. There was evidence tending to corroborate that of the former and other evidence that of the latter, and likewise other evidence tending to discredit that of both the prosecutrix and the prisoner. Much of the evidence was peculiar to the crime of rape and required explanation as to its nature and application. A clear and lucid statement of the evidence, both for the prosecution and for the defense, and an explanation of its bearings and the law (825) applicable in that connection, was necessary to enable the jury to settle and find material disputed facts of the evidence to be applied in reaching a just conclusion as to the issue submitted. Hence, the jury especially needed the important aid of the able judge who presided at the trial — not to tell or intimate to them that a fact was or was not proven, nor to express an opinion as to the weight of the evidence, but to superintend and direct their inquiries by appropriate statement of the evidence, explanations and instructions. Having stated the law of rape applicable and explained the issue submitted, he should have stated in an orderly manner the contentions and evidence of the prosecution — the principal evidence — all the material parts of it — and the corroborating evidence of whatever kind, and the law arising upon the same. The bearings of one part of the evidence upon another — its relations and purposes — should have been pointed out. The jury could not — did not — do this satisfactorily — no one but the learned judge could have done it, and the law charged him to do it. That done, the jury would have seen clearly, as the law contemplated they should do — the whole force and strength of the case for the State.
Then the court should, in like manner, have stated the contentions and evidence of, and favorable to, the prisoner — the principal evidence — and all the corroborating evidence of whatever kind, and the law arising thereon. In this connection, the court, as requested to do, should, for proper purposes, have called the attention of the jury to the evidence as to the time, the public location of the house, and the chamber in the house where the alleged rape was committed; the presence of persons in and about and near the house who could have heard, but did not hear, any outcry of the prosecutrix; that after the alleged rape she washed her face and arranged her hair in the prisoner's chamber, and at once joined her companions in the yard of the house and went a (826) considerable distance with them, stopping on the way, without telling them that, she had been outraged. The court should have explained the nature and purpose of this evidence, and told them that if it were true, the law made such facts and circumstances evidence — strong evidence — to the discredit of the prosecutrix; its weight, in view of all the other evidence, to be determined by them. Of course it should, *Page 569 likewise, in the proper connection, have stated the evidence intended to be explanatory and countervailing of the prosecutrix in such respects, and explained its bearings.
It appears that in the course of its charge — near its close — the court read to the jury full notes of all the testimony in the cause, and told them that he did this to refresh, and not control, their recollections of the testimony; that it was their duty to remember the testimony, and they ought to rely in the last resort on their own recollections. It has been repeatedly decided that this is not a compliance with the statute, nor does it serve the important and necessary purpose intended by it. Nor did the very general remark of the court that the evidence, other than that of the prosecutrix and the prisoner, was only "used by them as bearing on the question, whether this admitted carnal intercourse took place with the consent of the prosecutrix, or whether it was had by force, or such fear as he had before described, and against her will." The jury were substantially left to digest, classify and apply the voluminous, conflicting, evidence, much of it peculiar in its nature and force, without the valuable, necessary, superintending and directing aid of the court in stating it in an orderly manner, pointing out its nature, purpose, bearing and application. There could scarcely be a case in which such aid would be more important.
We know, from our knowledge of trial by jury, our experience and observation, that in such cases as the present one, without (827) the aid of the court, as we have indicated, the verdict of the jury, however honest their purpose, is too often the result of a lack of intelligent comprehension and application of the evidence, because of their want of knowledge of the law and experience in the application of evidence. Trial by jury is worthy of all commendation as a method for the ascertainment of truth, but to make it efficient, and what the law contemplates it shall be, requires the superintending and directing aid of the court.
We do not deem it necessary to advert to numerous other exceptions, most of which are without merit. One or two of them raise interesting questions that will hardly arise again.
There is error. The prisoner is entitled to a New Trial.