#### STATE v. HILL.

(Filed March 13, 1906).

Assault and Battery — Self-Defense—Question for Jury■ — • Deadly Weapon — Direction of Verdict.

1. In an indictment for assault with a deadly weapon where defend- • ant’s evidence showed that he drew his knife and cut at his assailant, a stronger man, to keep him from striking defendant with his fist, his assailant at the time rushing on him with his hand drawn back as if to strike with his fist, the plea of self-defense should have been submitted to the jury.

2. As a general rule, or under ordinary conditions, the law does not justify or excuse the use of a deadly weapon to repel a simple assault. This principle does not apply, however, where the use of such a weapon was or appeared to be reasonably necessary to save the person assaulted from great bodily harm; such person having been in no default in bringing on or unlawfully entering into the difficulty.

3. In no event in a criminal case is the judge permitted to direct a verdict against the defendant.

INDICTMENT of W. E. Hill for assault with deadly weapon, heard by Judge W. B. Gouncill and a jury, at the July Term, 1905, of the Superior Court of Onslow.

There was evidence of the State tending to show that the defendant was guilty of an inexcusable assault with, a knife on one H. A. Jarman. The defendant in his own behalf testified: “On May 30 I went down in the field after breakfast to finish thinning corn; hadn’t been there long before II. A. Jarman came down in the field with a little sack on his shoulder, and when he got in speaking distance of me •he said, ‘Why in hell didn’t you replant this corn like I told you?’ I said to him, ‘I did replant a lot of it yesterday morning; it was so dry and didn’t rain as I thought, hence I didn’t think it necessary to replant it?’ He said, ‘You *770 thought! damn it; why in bell didn’t you do like I told you ? Wbat do you reckon I want you to tend tbe land for and nothing on it ?’ I said, ‘You. can plant field peas in tbe missing places.’ Then be said, ‘G — d damn it, who is boss, you or IV I said, ‘Mr. J arman, when you want me to do anything, tell me like somebody, don’t come rearing and cursing.’ Jar-man set bis sack down, and witb bis right band drawn back and bis fist doubled up, made at me, saying, ‘I have fooled witb you as long as I intend to, G — d d — n you.’ He is a stronger man than I, as I am weakly and subject to asthma. He advanced on me witb bis right band drawn back in a striking position, coming ‘kinder’ sideways. I did not see anything in bis band, but be bad it drawn back as if to strike me witb bis fist, and in that position be rushed on me and I drew my knife and cut at him to keep him from striking me witb bis fist. When I cut at him be stumbled and fell. I never did anything else to him.”

On cross-examination: “When be put bis sack down on tbe ground be clinched bis fist and threw bis band around behind him in a striking attitude. I could not see bis band at all times. I did not see any weapon in bis band. He advanced on me sideways witb bis right band held out behind him in-a striking attitude.”

At this point in tbe defendant’s testimony, tbe judge stated in tbe presence of tbe jury that be would instruct them that tbe defendant was guilty upon his own statement. Tbe defendant excepted. Tbe defendant bad other material witnesses, but did not introduce them owing to tbe court’s intimation. Verdict of guilty as charged in tbe bill of indictment and from tbe judgment pronounced, tbe defendant appealed.

Robert D. Gilmer, Attorney-General, for the State.

C. L. Abernethy for the defendant.

*771Hoke, J.,

after stating tbe case: The defendant, by exceptions properly, noted, assigns for error, first, that on the testimony he was entitled to have his plea of self-defense passed on by the jury; second, that in any event, the court erred in directing a verdict against him. We are of opinion that both points are well taken.

It is true, as a general rule, or under ordinary conditions, that the law does not justify or excuse the use of a deadly weapon to repel a simple assault. This principle does not apply, however, where from the testimony it may be inferred that the use of such weapon was or appeared to be reasonably necessary to save the person assaulted from great bodily harm — such person having been in no default in bringing on or unlawfully entering into the difficulty. This was held in Matthews’ case, 18 N. C., 523.

In such case a defendant’s right of self-defense is usually s question for the jury; and it is not always necessary to the existence of this right that the first assault should be with a deadly weapon. It may, in exceptional instances, arise when the fierceness of this assault, the position of the parties and the great difference, in their relative sizes or strength, show that the danger of great bodily harm is imminent. This was held in Hough’s case, 138 N. C., 663.

Applying the principle of these two decisions to the case before us, we hold that the defendant’s claim of self-defense should.have been submitted to a jury. Of course, we express no opinion on the merits. There is evidence of the State, full and ample, if believed, to justify a verdict of guilty, and the jury may reject the defendaht’s version altogether, but it is for them to decide. And in no event, in a criminal case, is tire judge permitted to direct a verdict against the defendant. When a plea of not guilty has been entered and stands on the record undetermined, it puts in issue not only the guilt, but the credibility of the evidence. As is said in Riley’s case, 113 N. C., 651, “the plea of not guilty dis*772putes the credibility of the evidence, even when, uncontra-dicted, since there is a presumption of innocence which can only be overcome by the verdict of a jury.”

And as said in Dixon's case, 75 N. C., 275: “In this verdict the jury must not only unanimously concur, but must be left free to act according to the dictates of their own judgment. The final decision on the facts rests with them and any interference by the court tending to influence them into a verdict against their convictions is irregular and without the warrant of law.” And this has been held to be the correct doctrine, though guilt may be inferred from the defendant’s own testimony, as in Green’s case, 134 N. C., 658.

Where there is no evidence tending to establish the plea of self-defénse, and in any aspect of the testimony the defendant’s guilt is manifest, the judge may tell the jury “if they believe the evidence,” or as suggested in Barrett’s case, 123 N. C., 753, “if they find the facts to be as testified,” etc., “they will render a verdict,” etc. But this verdict must be rendered by them, and, in no criminal case, can it be directed by the judge. There is error and a new trial is awarded.

New Trial.