His Honor instructed the jury that the defendant might rebut the presumption of guilt by showing to the satisfaction of the jury that he did not carry the weapon with a criminal intent, but he proceeded to instruct them that there was no evidence offered before them sufficient, if believed, to rebut the evidence of guilt. In this we think there was error. The testimony of the defendant, who testified that he carried the pistol in his pocket, from his house to that of the State's witness, a distance of six miles, to be exchanged for an axe, and that he carried it for no other purpose, was certainly some evidence tending to rebut the presumption of a criminal intent, (607) and should have been submitted to the jury.
The case seems to be on all-fours with that of the S. v. Gilbert,87 N.C. 527. There the jury found the facts, that the pistol was carried in the pocket of the defendant, from one store to another, in the town of Asheville, a distance of about three hundred yards, to have it packed up with other goods; that he had no criminal intent in conveying *Page 511 the pistol, and submitted the question of law to the court as to the guilt of the defendant upon that state of facts. The court below held that he was guilty, and rendered judgment against him.
But on appeal to this Court the judgment of the Superior Court was reversed, and Ruffin, J., who spoke for the Court in that case, said: "It is true it will always be presumed that a man intends to do what he does, and that he must contemplate the natural consequences of his conduct. But when the jury expressly find the contrary, and that, notwithstanding the act done, there was no criminal intent connected with it, that must put an end to the prosecution."
In that case the jury found as a fact that the defendant had no criminal intent in carrying the pistol, and that finding was based upon the evidence offered before them tending to rebut prima facie evidence of guilt, and this Court sustained their finding. The evidence in both cases is in effect the same. If it was proper for the jury to consider and act upon it in the one case it would seems that it ought to be sufficient to be submitted to their consideration in the other.
We are of opinion that the court below erred in the instructions given to the jury and in refusing that asked by the defendant. Let this be certified that a venire de novo may be awarded.
Error. Reversed.
(608)