#### STATE v. SEABOARD AIR LINE RAILWAY.

(Filed 11 December, 1907).

Instructions — Power of Court — Opinion.

It was error for tbe Court below, in instructing the jury,’to charge, “if they believed the evidence they would return a verdict of guilty,” such being an expression by the Court prohibited by Revisal, see. 535. The proper manner is to instruct them, “if they find from the evidence” a certain fact or facts to be true, then the defendant is guilty or not, as the case may be.

Clark, C. J., dissenting arguendo.

INDICTMENT for running freight train on Sunday, tried at August Term', 1907, of Franklin Superior Court, before Neal, J., and a jury.

Verdict of guilty. Defendant appealed.

Assistant Attorney-General Clement for the State.

Day, Bell & Allen and T. W. Bichett for defendant.

*571BeowN, J.

Tbe Court instructed tbe jury that, if they believed tbe evidence, they would return a verdict of guilty. To tbis instruction tbe defendant excepted, and we tbink tbe exception is well taken. Section 535 of tbe Eevisal provides that “No judge, in giving a charge to tbe petit jury, either in a civil or a criminal action, shall give an opinion whether a fact is fully or sufficiently proven, such matter being tbe true office and province of tbe jury; but be shall state in a plain and correct manner tbe evidence given in tbe case and declare and explain tbe law arising thereon.” Tbis section of tbe Eevisal has been on tbe statute books of tbis State since% tbe year 1796 (Code, sec. 413), and has often been construed by tbis Court in relation to just such a charge as was given in tbis case. In State v. Matthews, 78 N. C., 537, Rodman, J., speaking of tbe duty of a judge in charging tbe jury in a criminal case, says: “We tbink be is required, in tbe interest of human life and liberty, to state clearly and distinctly tbe particular issues arising on tbe evidence, and on which tbe jury are to pass, and to instruct them as to tbe law applicable to every state of tbe facts which, upon tbe evidence, they may reasonably find to be tbe true one. To do otherwise is to fail to declare and explain tbe law arising on tbe evidence, as by tbe act of Assembly he is required to do.” In State v. Mooney, 61 N. C., 435, Judge Reade says: “His Honor’s charge, ‘that in any view of tbe case tbe defendant was guilty,’ is so broad as to entitle tbe defendant to a new trial, if there is any view consistent with bis innocence.” Judge Henderson says, in Bank v. Pugh, 8 N. C., at page 206 : “Tbe jury are tbe constitutional judges, not only of tbe truth of the testimony, but of the conclusions of fact resulting therefrom.” In consider-’ ing a charge similar to that given in tbis case, Mr. Justice 'Walker well says: “The evidence may, in the opinion of the Court, have been ever so strong against tbe defendant, yet it was for tbe jury to find tbe ultimate fact of guilt, without any suggestion from tbe Court, direct or indirect, as- to what the *572finding should be. The presumption of innocence and the doctrine of reasonable doubt require that method to be pursued, and it is clearly enjoined by the statute we have cited (Code, sec. 413), the restraining words of which define clearly the respective functions of Court and jury in the trial of causes.” State v. Simmons, 143 N. C., at page 619.

The expression “if the jury believe the evidence” has been often condemned by this Court, and we have repeatedly held that the proper way to instruct the jury is that, if they find from the evidence a certain fact or facts to be true, then the defendant is guilty, or not guilty, as the case may be. Sossaman v. Crews, 133 N. C., 470; Wilkie v. Railroad, 127 N. C., 203; State v. Barrett, 123 N. C., 753. In State v. Green, 134 N. C., 658, the Court instructed the jury that, if they believed the evidence, they should convict the defendant. A new trial was granted for error in this charge, and Judge Connor says: “Section 413 of The Code prescribes the duty of the Judge in charging the jury: Tie shall state in a plain and correct manner the evidence given in the case, and declare and explain the law arising thereon.’ We feel sure that the error of the learned and careful Judge who tried this case was an inadvertence. The testimony strongly tended to show the defendant’s guilt, and doubtless so impressed his Honor. In the administration of the criminal law it is wise to observe the landmarks’ and preserve the well-defined rights and duties of the Court and jury.”

The evidence in the case before us is indefinite and uncertain, and the facts to be found therefrom and the inferences to be drawn were matters peculiarly within the province of the jury. If there was any phase of the evidence from which the jury might infer that the defendant was not guilty, the defendant was entitled to go to the jury on it. State v. Lilly, 116 N. C., 1050.

New Trial.

*573ClaRK, C. J.,

dissenting: When the intent is an essential ingredient of an offense, then it is error to charge tbe jury “If yon believe the evidence you will find the defendant guilty,” for the jury, not the Court, must draw the inference of intent. To this class of cases belongs every case cited by the Court.

Hut when, as here, the doing the act condemned by the statute (Revisal, sec. 3844) makes the offense, then, if, as here, the evidence is plain and uncontradicted that the defendant willfully did that act, the Court can properly discharge its duty to “apply the law to the facts” only by instructing the jury, as his Honor did here, “If you believe the evidence, the defendant is guilty.” There is nothing else he could say. This distinction is drawn in State v. Railway, 122 N. C., 1061 (the “free-pass” indictment), with citation of numerous, authorities, where the Court said: “This has been settled law for a long time.”

We have a case exactly in point and for this same offense, the facts being as here. The Judge there charged, as Judge Neal has charged here, that “If the jury believe the testimony, the defendant is guilty.” The defendant excepted, but this Court unanimously affirmed the judgment. State v. Railroad, 119 N. C., 821. There is no reason shown to overrule that case. From immemorial time, in our State, in the other States of the Union and in England, such instructions haA^e been sustained where the eAÚdence is uncontradicted and no inference of intent has to be draAvn as an element of the offense. Our Reports show numbers of cases affirmed on exactly such instruction by the Judge, among them the very last case, State v. Walker, ante, 567.

The act of 1879, chs. 9'7, 203, amended 1897, ch. 126, uoav Revisal, sec. 3844, provides: “If any railroad company * * * shall permit any car, train of cars or locomotive to be run on Sunday on any railroad, except such as may be run for the purpose of transporting the United States mails and passengers with their baggage, and ordinary express *574freight in an express car exclusively, and such as may be run by law, such railroad company shall be guilty of a misdemeanor in each county in which any such car, train of cars or locomotive shall run,” with a proviso that “Sunday” shall embrace only from sunrise to sunset, and that freight trains in Lransiku which have started on Saturday may be run not later than 9 o’clock A. M. on Sunday, but only for the purpose of reaching the terminus or shops. If running a train for carrying live stock, etc., under Revisal, sec. 2613, can be construed as an exception to this statute, that is purely a matter of defense, and there was no evidence to that effect.

The statute is plain, clear, explicit. The indictment followed the statute. The State could not be required to charge more facts than the law making the offense prescribed as constituting it. The evidence, if believed — and the jury have said they did believe it — proved conclusively, and it was not contradicted, every fact prescribed by the statute and charged in the indictment. W. J. Ballard, living at Eranklinton, N. 0., testified that, at 2:30 P. M. on Sunday, last year, he saw No. 41, a freight train, pass that place; that he noticed all the cars; there were eighteen cars, empty, and all the doors open; train was going north; that another freight train passed about the same time, also going north; this train contained fifteen empties, five cars of lumber and a car of pig iron; all doors open; that the doors of the first train were wide open; that he looked in the cars of the first train (eighteen empty cars) and could see in one end as they passed, but not in the other; that the second train, which stopped at Eranklinton for another train to pass it, was composed of fifteen “empties,” five cars of lumber and a car of pig iron; that he examined that train, and there was nothing on it except the lumber and pig iron, as above described; the doors were standing wide open; that this was between first of May and last of July of last year.

*575There is nothing doubtful or uncertain about this evidence. If Mr. Ballard swore to the truth, no other conclusion could be possibly drawn but that on a certain Sunday, about 2:30 in the afternoon, in May, June or July, last year, and therefore within two years,, the defendant did run “a car, train of cars or locomotive” on its road, which was “not run for the purpose of transporting the United States mails and passengers and express car.” That is the offense which is prescribed in Revisal, sec. 3844, and charged in the indictment. If there was any matter of defense, outside that section, the burden was on the defendant to prove it, and it did not. State v. Long, 143 N. C., 676; State v. Railroad, 119 N. C., 814. The whole case turned upon whether the state of facts which the witness Ballard described was true or not, for, if true, it was the identical state of facts, verbatim, which the lawmaking body decreed (Revisal, sec. 3844) should be a misdemeanor. Necessarily, therefore, “if the jury believed the evidence,” the defendant was guilty.

In the “free-pass” case (State v. Railroad, 122 N. C., 1070) attention was called to the fact that that was the first indictment against a railroad company for violation of the law against issuing free passes, though the law had been enacted seven years previously. But the statute now before us was enacted in 1879 — now nearly twenty-nine years ago— and it may well be doubted (if it is, indeed, a subject of any doubt) whether a single Sabbath day in all those years has passed in which this statute has not been openly and notoriously violated in North Carolina. Yet only once before has an indictment for its violation been presented here (State v. Railroad, 119 N. C., 814) for review. The law was passed to insure rest from 9 A. M. to sunset on the Sabbath day for a most deserving and hard-working body of men, who daily and almost hourly risk their lives. They have had no powerful lobby to represent them before the Legislature, and this small enactment in their favor has not been enforced. . It is *576to the public interest that they should have this short weekly cessation of work (only about one-third of that allowed by the Mosaic Dispensation), not only for their own benefit and the benefit of those dependent upon their continuance in life and health, but also for the benefit of the public at large, whose lives and limbs are put in jeopardy when railroad operatives on any train which may collide with a passenger train are worked 365 days a year, with no Sabbath interval of rest, which is accorded for twenty-four hours to other vocations of men. It has been expressly held that the Legislature had the 'power to pass the act. State v. Railroad, 119 N. C., 894. If (as the Judge charged) the witness Ballard swore the truth, the law has been violated. Why should this defendant not pay the fine prescribed by law for this act ?

The railroad corporations are officered by educated, intelligent men. In State v. Railway, 122 N. C., 1063, Montgomery, J., says: “It is not too much to say in a judicial opinion that the defendant is represented in its legal department by many of the best equipped lawyers in the country, and it would be a most violent presumption to say, or even to think, that they were not thoroughly posted as tp the laws, State and Federal, concerning the interests and liabilities of their clients.” The railroads are not only not poor and ignorant, but, of all, they are most beholden to respect and obey the law. They are beneficiaries of the State. Their reports, published as official records by the State, and of which hence we have often taken judicial notice, show that they collected from the people of North Carolina last year $28,000,000, of which more than $9,000,000 was net profit. In all their immense work in gathering up this profit and these receipts, and over every foot of their extensive properties, and as to every dollar of their holdings, they are guarded and protected by the might and majesty of our law, maintained and executed at the cost of the public. They are safe behind the terrors of the law, whose weight will be surely and un*577erringly felt by whoever shall dare to violate that protection. Yet, when for the second time only in the more than twenty-eight years elapsed since the passage of this law for the protection of railroad employees, an indictment for its violation is presented in this Court, when the uncontradicted evidence, if believed, makes the defendant guilty of the very act prescribed by the statute, and the Judge so tells the jury, and it cannot be denied that such is the law, it is argued to us that there is reversible error because the Judge said: “If you believe the evidence,” instead of “If you believe from the evidence,” that the defendant did the act described by the witness, i. e., ritn a freight train on a Sunday afternoon.

None of these cases cited by the Court condemns the phrase here used by the Judge, which has been sanctioned by immemorial usage. In all of them the emphasis is on “evidence,” not on “from.” In State v. Barrett, 123 N. C., 753, the Court criticised, in a case of larceny involving intent, the expression, “If you believe such facts,” on the ground that the jury might believe such to be facts otherwise than from the evidence (as from their own knowledge, for instance), and, therefore, they should be told “if they found such facts from the evidence,” etc. This does not apply here, where the Judge told the jury “if they believed the evidence." Wilkie v. Railroad, 127 N. C., 213, repeats what is said in State v. Barrett, sufra, and gives the same reason, that the jury should not take their own knowledge, but base their verdict on the evidence, which the Judge in this case told them to do. Exactly the same was held in Sossaman v. Cruse, 133 N. C., 472.

In State v. Green, 134 N. C., 650, the Court did not hold that the expression “If you believe the evidence” was error (though it said it was open to criticism), except for the fact ’that in that case there were two aspects of the evidence, in one of which, if found by the jury, the defendant was not *578guilty. In tbe case now before ns there was only one possible aspect, if the evidence was believed, for there was no conflict and only one witness. The defendant did or did not run its freight train by Eranklinton on a Sunday afternoon within two years previously. The Judge expressed no opinion on the evidence, but simply told the jury, if they believed the evidence of the witness (Ballard), the defendant was guilty; and, “beyond all controversy,” the facts testified to by Mr. Ballard were the facts which the statute says constitute a misdemeanor.

In State v. Riley, 113 N. C., 648, where the whole subject is fully discussed, the Court said (p. 651) that, in a criminal case, if the testimony is uncontradicted and no inference of intent is to be drawn, the Court can “charge the jury that, if they believe the evidence, the defendant is guilty.” This charge has been upheld in State v. Railroad, 119 N. C., 814, above cited, which was an indictment for this offense, and in a very great number of other cases, the point not being head-noted because deemed elementary law. In State v. Journigan, 120 N. C., 569, the Court said that such a charge would be error if “the intent is a material element.” In State v. Woolard, 119 N. C., 779, and State v. Neal, 120 N. C., 621, the Court held that it was not error to charge that, “if the jury believe the defendant’s testimony, he is guilty.” Such instruction as was given in this case is very different from “directing a verdict,” which cannot be done in a criminal case, in which the credibility of the evidence must be left to the jury, as was done in this case. State v. Riley, supra. The three cases cited as criticising, not condemning, this form of charge do not apply, as will be seen by examining them.

In a very recent case (Clark v. Traction Co., 138 N. C., 78) Brown, J., speaking for a unanimous Court, said: “His Honor instructed the jury, if they believed the evidence, to answer the issue ‘Yes.’ In this instruction we are unable to discover a/ny error. The evidence in the case was practically *579■undisputed, and we do not see bow any reasonable mind can draw more than one inference from it.” That case cannot be differentiated from this. To same effect State v. Walker, ante, 567.

The jury have “believed the nncontradicted evidence” that the defendant ran its freight train on that Sunday afternoon. There was no evidence set up in defense to show that the trains were such as were allowed to be run on Sundays. The evidence is that the cars were either “empties” or loaded with 'lumber and pig iron. Could the jury have possibly “believed from the evidence” that the defendant did not illegally run its freight trains on that occasion ? If not, how could the omission of the word “from” have affected their finding or be reversible error ?