#### State v. Morris.

\ i From Mecklenburg. J

A judge is not bound by law to recapitulate all the evidence to the jury in his charge; it is a matter left to his own discretion; if, however, he thinks proper to deliver a charge, he must do so according to the rule laid down in the act of 1796, ch. 52.

If a person be present aiding and abeting in the commencement of an assault with intent to rescue a prisoner, he does not cease to be guilty because his fears prevent him from going all lengths with his party.

This was an indictment against the defendant, and several others, for an assault and battery on one King, a constable, while in the execution of Ms office, tried before Badger. Juda:e.

The material part of the evidence below was as follow's:

On the part of the state, it was proved by several witnesses, that while King was conveying a prisoner to the jail of Mecklenburg, under a mittimus from a justice of the peace of that county, the defendant, in company with several others, came up to him aqd said, the prisoner should not go to jail, if money or security would save hint. The officer then told him, that the prisoner had *389once had an opportunity before the justice to give security and had refused. Defendant then asked permission to step aside with the prisoner to talk with him; this the officer refused, unless he himself went with them, which he agreed to do. Defendant and the officer in charge of his prisoner, then went aside from the jail, (at the door of which this conversation had passed,) followed by the other persons in company. When they had gone about ten paces the defendant said, the prisoner should not go to jail at all. This was repeated by others of the party, and immediately several of them set upon the officer, attempted to rescue the prisoner, and in the prosecution of this attempt, the officer was assaulted and beaten.

It did not appear that the defendant himself assaulted or struck the officer. It was also proved that the observation about bailing the prisoner was made by the de--fendant in a threatening manner.

It was then proved by several witnesses for the defendants, that when the officer wras set upon and the struggle was going on to rescue the person in custody, the defendant retired from the crowd and said, “boys, you had better take care what you are about, I. will have nothing to do with this.”

The case was submitted without argument by the counsel, and the presiding judge, without repeating the evidence to the jury, left the case to them, with instructions to inquire upon the whole evidence whether the defendant and the other persons present made the assault with an intent to rescue the prisoner; and informed the jury, that if this was the fact, all the parties present concurring in the design and encouraging the attempt were guilty as much as if they had personally struck the blows; and the jury was directed, if the defendant was thus concerned, to find, him guilty.

The defendant’s counsel then requested the judge to repeat the evidence to the jury: this the judge declined 1:?> *390do, but informed the counsel that he was at liberty, theft, if he wished it, to argue the case to the jury.

The counsel then prayed the judge to instruct the jury, that if they believed the testimony of the defendant’s witnesses as to the defendant’s .declaration, before stated, they should acquit the defendant. The Court refused to give such instruction.

The defendant was convicted. Witnesses were then examined by the defendant’s counsel, as to the defendant’s previous conduct, in mitigation of the punishment. The Court intimated an opinion afterwards, when judgment was about to be prayed, that the offence -required to be punished by imprisonment, and the defendant’s counsel then moved for a new trial, 1st, because the judge refused to repeat the testimony to the jury, and 2nd, because the judge refused to give the instructions prayed for by the defendant’s counsel.

A new trial having been refused, and judgment pronounced, the defendant appealed.

The case was submitted by the Attorney General without argument.

Taylor, Chief Justice.

The exceptions taken to the judgment in this case are, that the judge who tided it was applied to by the defendant’s counsel, to repeat to the jury the evidence before they retired; and secondly, that the judge refused to instruct the jury, that, if they believed the testimony of the defendant’s witnesses they ought to acquit the defendant. It cannot be traced or ascertained, on the first point, that any rule of the common: law exists, that makes it imperative on a judge to repeat the evidence to the jury. He is placed on the bench, to the end that he may preside over the order and solemnity of trials, maintain the authority of the laws, and administer them upon all applications which are solely confined to his jurisdiction. If on the trial of a cause, the witnesses are numerous, the evidence complicated, and *391the main question, or principal issue obscured by various .and conflicting testimony, he may, in his discretion, sum up the whole to the jury, that they may apply it properly, and have their attention directed to the essential points in controversy. No judge would ever refuse to impart such assistance, when it is requested by a jury, nor would he withhold it in any case, wherein the nature of the evidence or the conduct of the cause led him to believe, that his aid would enable them to discharge their constitutional functions with more correctness or facility. Bub it must of necessity depend on the circumstances of each case, whether the judge believes that his aid would be of any efficacy; whether tlie case be not so plain and intelligible, as to render his interference unnecessary, or the evidence so equally-balanced as to make it unsafe. All these considerations, the law has 'wisely confided to the. sound discretion of the judge; and it affords a singular testimony in favor of our free institutions, that the reluc- . tance of judicial interposition should be made a subject of complaint, when in other countries, where the same system of law prevails, the invasion of the rights of juries has been an abundant source of public evil. The common law is not altered in this respect by the act of 1796, eh. 52, which professes only to prescribe the manner in which a judge shall charge the jury, when he thinks fit to deliver a charge; not to make it his duty to deliver one, if he deem it unnecessary. “ it shall not be lawful for any judge, in delivering a charge to the petit jury, to give an opinion whether any fact is fully or sufficiently proved, such matter being the true office and proper province of the jury; but it is hereby declared to be the duty of the judge in such cases, to state, in a full and correct manner, the facts given in evidence, and to declare and explain the law arising therefrom.” No implication can arise from this law, that lie must charge the jury; but if he does charge them, he must do it according to the rule there laid down. On any question of law which may *392arise, during the trial, either party has an undoubted right to demand the opinion of the Court, for this is essential to the proper administration of justice. In this case yie Court gave an opinion on the law, by refusing to give the instruction prayed for by the defendant’s counsel. It was distinctly decided by the Court, that the defendant was guilty in point of law, upon the supposition of the jury’s believing the witnesses for the state, although they should also believe the defendant’s witnesses. And upon looking into the case, it seems impossible to doubt as to the correctness of this opinion; for the defendant’s witnesses testified, that when the officer was set upon and the scuffle going on to rescue the party in custody, the defendant retired from the crowd, and said, « boys, you had better take care what you are about; I will have nothing to do with it.” The defendant had 'previously told the officer, in a threatening and intimidating manner, that the prisoner whom he had in custody "''should not go to jail, if money or security would save him. He afterwards repeated that the prisoner should not go to jail at all, and immediately several of the party set upon the officer and attempted a rescue, in the course of Which the officer was assaulted and beaten. If the jury believed that the defendant was an aider and abettor in the commencement, he did not cease to be a co-trespasser because he was unwilling to go all lengths with his party. The judgment must b'e affirmed,