#### STATE v. L. W. ARROWOOD.

(Filed 14 May, 1924.)

Criminal Daw — Statutes—Infanticide—Homicide—Concealment of Birth of New-horn Infant — Burying—Evidence—Presumption—Burden of Proof — Directing Verdict — Appeal and Error.

Under the provisions of 0. S., 4228, making it a felony for any person to conceal the birth of a new-born child by secretly burying or otherwise disposing of its dead body, it is reversible error for the trial judge to direct a verdict of guilty upon evidence tending to show that the defendant found the dead body of the infant in a state of decomposition and therefore buried it, and had informed the authorities thereof and directed them where he had buried it, it being required of the State to rebut the common-law presumption of innocence by establishing the defendant’s guilt beyond a reasonable doubt.

Appeal by defendant from Bay, J., at October Term, 1923, of Ruth-erpoed.

Criminal prosecution, tried upon an indictment charging the defendant with endeavoring to conceal the birth of a new-born child by secretly burying or otherwise disposing of its dead body, in violation of C. S., 4228.

The State offered four witnesses, who testified in effect that Bonnie Arrowood gave birth to a child on Sunday night, 5 August, 1923. On Tuesday following, this fact was discovered by the county physician, after he had been called to make an examination of the said Bonnie Arrowood. The defendant testified before the coroner’s jury that he knew nothing of the infant until he found its dead body in the field, about 100 yards from the house, late Thursday evening, 9 August, and, on account of its decomposed condition, he put it in a tow-sack and buried it. On the following morning the defendant reported the finding of the body to Ike Flack, postmaster at Thermal City, and requested him to notify the authorities about it. The defendant showed the coroner’s jury where the body was buried and assisted them in digging it up.

The defendant offered no evidence.

Under a peremptory instruction from the court, the jury returned a verdict of “guilty.” From a judgment of 5 years at hard labor in the State’s Prison the defendant appeals, assigning errors.

Attorney-General Manning and Assistant Attorney-General Nash for the State.

Stover P. Dunagan for defendant.

Stacy, J.,

after stating the case: At the close of the evidence, his Honor instructed the jury as follows: “Gentlemen of the jury, if you *716believe tbis evidence, beyond a reasonable doubt, you will return a verdict of guilty. Take tbe case.” Tbe defendant excepts to tbis instruction, and tbe same is assigned as error. Tbe exception is well .taken, and, under a uniform line of decisions, it must be beld for reversible error. S. v. Murphrey, 186 N. C., 113; S. v. Estes, 185 N. C., 752; S. v. Alley, 180 N. C., 663; S. v. Boyd, 175 N. C., 793.

Tbe defendant entered on tbe trial witb tbe common-law presumption of innocence in bis favor. His plea of not guilty cast upon tbe State tbe burden of establishing bis guilt, not merely to tbe satisfaction of tbe jury, but beyond a reasonable doubt. Tbe evidence bere was not compelling. Tbe jury might have been satisfied, beyond a reasonable doubt, of tbe truth of all that was said by tbe witnesses, and yet acquitted tbe defendant. “If any person shall, by secretly burying or otherwise disposing of tbe dead body of a new-born child, endeavor to conceal tbe birth of such child, such person shall be guilty of a felony,” is tbe language, in part, of tbe statute under which tbe defendant stands indicted. C. S., 4228. Furthermore, it is error for tbe trial court to direct a verdict in a criminal prosecution where there is no admission or ime-sumption calling for explanation or reply on tbe part of tbe defendant. S. v. Hite, 141 N. C., 769; S. v. Riley, 113 N. C., 651.

New trial.