#### STATE v. FREEMAN.

(November 20, 1900.)

1. Appeal — Case on Appeal — Counter Case — Servicp—Fil-ing — Criminal Law.

When counter case of the State has not been served or service acknowledged thereon or filed for more than a month after the State has accepted service of case of defendants, in an appeal by the defendant the counter case will not be considered.

2. Ajfra/y — Elements—Criminal La/w.

Persons engaged in a friendly scuffle are not guilty of an affray.

3. Affray — Burden of Proof — Criminal Law.

Admission by persons that they were engaged in a friendly scuffle does not shift the burden from the State of proving them guilty of an affray.

INDICTMENT against H. R. Ereeman and A. A. McKenzie for an affray, beard by Judge Thomas J. Shaw and a jury, at April Term, 1900, of Montgomeby Superior Court-.

Defendant’s statement of case on appeal: All the evidence in the case tended to show that the defendants were under the influence of liquor, and while returning from a fishing party along the public road, in company with various other persons, engaged in a friendly scuffle, when the defendant A. A. McKenzie caught his foot under a pole and fell, and the defendant II. R. McKenzie, also fell over the same pole, and fell on the (other) defendant McKenzie. One Sewell Ereeman, who was standing near by, immediately caught the defendant Ereeman by the arm, lifted him up and carried him into a lot about twenty yeards away, when the defendant picked up a small stick from the ground, but did not offer or attempt to use the same.

*545Tbe defendants were introduced and testified in their own behalf. They admitted that they engaged in a scuffle, but declared that they were neither of them mad, and that the engagement was entirely friendly. His Honor, among other things, charged the jury that the defendants, haying admitted that they were in a scuffle, that the burden shifted from the State, and the defendants must satisfy the jury that they were not mad and fighting, and that the encounter was a friendly one. To this part of his Honor’s charge the defendants excepted. There was a verdict of guilty. Motion for a new trial for error in his Honor’s charge. Motion overruled, etc. Defendants appealed.

On back of this statement of case on appeal for defendants ■was indorsed: “Service accepted without prejudice. This April 18, 1900. Wiley Rush, Solicitor.”

state’s COUNTER CASE ON APPEAL.

The evidence for the State tended to show that the two defendants, and others, were returning from a fishing frolic, and were under the influence of liquor. That the defendant Ereeman called for the jug of whiskey and stopped to treat a party whom they met. That the crowd went on some distance ahead of Ereeman to a point in the road where Eree-man was to turn off, and the defendant McKenzie, and another one of the party, returned to where Ereeman was, and some words about the jug were heard, and, also, cursing from that distance; that McKenzie took hold of Freeman’s arm and the other party took the jug from Ereeman; that a scuffle between McKenzie and Freemen then began and Freeman fell to the ground and McKenzie went on to him; that one Sewell Freeman, who lived near, 'but was not of the party, nor a witness before the Court, seeing the difficulty, came, and with the aid of another, took McKenzie off of Ereeman, and *546together they then took Freeman through the gate into the yard, when Freeman stooped and picked up a stick, but, being remonstrated with by Sewell Freeman, dropped the stick without making any effort to use it. The State’s witness, Wiley Ward, who was at some distance, on cross-examination, testified that he heard cursing in that direction, and saw the scuffle, but did not know whether they were mad or not. The defendants both testified that McKenzie took hold of Freeman’s 'arm; that Freeman stepped back, turned around and fell over a root, and that McKenzie went on and fell over the same root and landed on top of Freeman'; that they both lay quietly upon the ground, one on top of the other, with their hands down upon the ground,until Sewell Freeman cam® to part them; that Sewell Freeman and another took Freeman away, and that he did pick up a stick, but that neither of them were mad. His Honor, among other things, charged the jury that if the jury found as a fact, beyond a reasonable doubt, from the evidence, that the scuffle, as testified to by the witnesses for the State, occurred, then the burden would shift to the defendants to satisfy the jury that the scuffle was a friendly one, and if the jury should find as a fact, from the evidence by the State, that the souffle did occur, as testified to by the witnesses, and that the defendants had satisfied the jury that the scuffle was a friendly one, and engaged in by mutual consent, then the jury should return a verdict of not guilty. To this part of the charge the defendants excepted.

Verdict of guilty of a simple assault.

- Motion for a new trial for error in his Honor’s charge. Motion overruled, and defendants excepted and appealed from the judgment pronounced. Notice of appeal waived. On affidavit, the defendants allowed to perfect their appeal without bond.

On back of State’s case on appeal was endorsed as follows: *547“Service accepted. This April 22, 1900. (No signature.) Eiled May 28, 1900. C. A. Armstrong, C. S. C.”

Erom verdict of guilty and judgment, tbe defendants appealed.

Zeb. V. Walser, Attomey-Q-eneral, for tbe State.

Douglass & Simms, for tbe defendants.

Eueohbs, J.

Tbe defendants, Robert Ereeman, Bud McKenzie, Henry Ereeman, and Sam McLeod, were indicted for an affray. It seems, from tbe record, that all four of tbe defendants were put on trial, and tbe jury, “for tbeir verdict, say they find tbe defendants guilty of simple assault. Judgment: Defendants fined fifty dollars eacb, and eacb pay one-fourth of tbe costs. (State accepted a verdict of not guilty as to defendants Sam McLeod and Henry Ereeman.)” And it seems that tbe defendants Henry Ereeman and A. A. McKenzie appealed. It also appears, from tbe record sent up, that defendants’ counsel made up a statement of tbe case on appeal, service of which was accepted by tbe Solicitor on tbe 18th day of April, 1900. There also appears to be a counter case made by tbe Solicitor, which was never served, nor was service accepted by defendants, or tbeir attorneys, but on tbe back of which is marked, “Eiled May 28, 1900.”

Tbe counter case not having been served, or acknowledged, and not having been filed until tbe 28th of May, more than a month after service was accepted by defendants, tbe counter case on appeal was too late, even if we were to bold that tbe word “Eiled” of itself was sufficient to comply with tbe statute (sec. 550 of Tbe Code). We will therefore have to be governed by the case made by the defendants; and, as we have to be governed by tbe defendants’ statement of tbe case, we will say that, while there is some difference in tbe state*548ment of facts in the two oases, tibere is very little difference in that part of them upon which our opinion is based. The “case” states that “all the evidence in the case tended to show that the defendants were under the influence of liquor, and while returning from a fishing party along the public road, in company with various other parties, engaged in a friendly scuffle, when the defendant A. A. McKenzie caught, his foot under a pole and fell, and the defendant W. R. McKenzie also fell over the same pole, and fell on the defendant McKenzie. One Sewell Freeman, who- was standing near by, immediately caught the defendant Freeman by the aim, lifted him up ,and carried him into a lot about twenty yards away, when the defendant picked up a small stick from the ground, but did not offer or attempt to use the stick. The defendants were introduced, and testified in their own behalf. They admitted that they engaged in a scuffle, but declared that they were not mad, and that the engagement was entirely friendly. Ilis Honor, among other things, charged the jury that, the defendants having admitted that they were in a scuffle, the burden shifted from the State, and the defendants must satisfy the jury that they were not mad and fighting, and that the encounter was a friendly one. To this part of his Honor’s charge, defendants excepted.” The charge in this bill is an affray by fighting together in a public place. There must have been a fighting — an affray- — before there co-uld be a criminal offense. State v. Crow, 23 N. C., 375. This must be admitted by the defendants, or found from the evidence by the jury, and the burden is on the State. Every man is presumed to be innocent until he confesses his guilt, or is found guilty by a jury of his country. The defendants did not confess their guilt. Indeed, they denied it. It can not be that parties “engaged in a friendly scuffle” are guilty of an affray, and this is all that they admitted. We see very *549little, if any, evidence of an affray. But, if there had been ever so much, it was still for the jury to say whether there was an affray or not. State v. Baker, 65 N. C., 332. That is, whether the defendants were mad and fighting or not. We know that the law is that where two or more parties are indicted for-an affray, and the affray (the criminal offense) is admitted, or found from the evidence, then the burden is shifted, and thrown upon any one of the parties engaged in the affray to justify or excuse himself from guilt. But this only takes place after the offense is established. To apply this rule before a breach of the peace has been' established would be to compel the defendant to prove himself innocent of the charge preferred against him by the State. This is in violation of the constitutional rights of every freeman, and is not the law. If the Judge thought there was enough evidence to carry the case to the jury, he might have properly charged them that if they found, from the evidence, that the defendants were mad and were fighting, and not scuffing (with proper explanation as to what was a fight — an affray), then the burden changed, and if any or either one of them was not guilty, the burden was on him to show he was not. If it was only a friendly scuffle, it was a pretty dear one to them — $50 each, and one-fourth each of the costs. There was error, for which there must be a new trial.

Error.