Criminal prosecution tried upon indictment charging the defendant with rape.
The defense interposed under a plea of "not guilty" was, first, that if the crime were committed at all, it was committed by some one other than the defendant, and, second, if committed by the defendant, he was insane at the time.
Verdict: "Guilty of rape in the manner and form as charged in the bill of indictment."
Judgment: Death by asphyxiation.
The defendant appeals, assigning errors. The following excerpt taken from the charge forms the basis of one of the defendant's exceptive assignments of error:
"As I told you, gentlemen of the jury, it is your duty to convict this man either of rape or of assault with intent to commit rape, as you find the facts to be from the evidence and under the charge of the court, unless you find from the evidence that he did not have sufficient mental capacity to know the difference between right and wrong at the time of the alleged assault. If you find at that time he did not know the difference between right and wrong, you would return a verdict of `not guilty.'"
The jury had been recalled for further instructions and this was the court's final charge. It is peremptory in character. It seems that the exception is well taken. S. v. Lawson, 209 N.C. 59, 182 S.E. 692; S. v.Singleton, 183 N.C. 738, 110 S.E. 846. *Page 684
It is true, the defendant offered evidence of his insanity, but he did not admit the truth of the State's evidence. His plea of "not guilty" put at issue the question of identity as well as that of the commission of the crime.
It is held for law with us that the trial court may not direct a verdict for the prosecution in a criminal action, where there is no admission or presumption calling for explanation or reply on the part of the defendant.S. v. Ellis, 210 N.C. 166, 185 S.E. 663; S. v. Hill, 141 N.C. 769,53 S.E. 311; S. v. Riley, 113 N.C. 648, 18 S.E. 168.
For error in the charge, as indicated, a new trial must be awarded. It is so ordered.
New trial.