#### STATE v. WALTER HALE.

(Filed 3 February, 1950.)

1. Criminal Law § 41g—

Tbe rule that the incriminating testimony of an accomplice should be scrutinized applies whether such testimony be supported or unsupported by other evidence in the case.

2. Criminal Law § 53j—

While the court is not required to charge the jury as to the credibility of the testimony of an accomplice in the absence of a special request, when the court voluntarily undertakes to charge the jury on this aspect, it is under duty to state the rule correctly as applied to the evidence in the case.

S. Same—

An instruction to the effect that the State contended that the testimony of accomplices offered by it was supported by other testimony adduced, followed by an instruction that the unsupported testimony of an accomplice should be scrutinized, is held erroneous as susceptible to the interpretation that if the testimony of an accomplice be supported, the rule of scrutiny would not apply.

Appeal by Walter Hale from Phillips, J., at February Term, 1949, of Fobsytii.

Criminal prosecution on indictment charging Walter Hale, Grady Jones, Porter Stack and Claude Weldy, Jr., with (1) conspiring to break and enter the dwelling house of Harry Huffman; (2) breaking and entering; (3) larceny, and (4) receiving stolen goods.

The defendant, Porter Stack, has not been apprehended.

The defendants, Grady Jones and Claude Weldy, Jr., entered general pleas of guilty and were used as witnesses against Walter Hale, who alone was tried on his plea of not guilty.

The evidence for the prosecution is to the effect that on 13 January, 1949, the home of Harry Huffman in Winston-Salem was forcibly entered, a wall safe prized open and $17,600 taken therefrom.

The evidence of Claude Weldy, Jr., and Grady Jones, is to the effect that the crime was planned by them with Walter Hale and Porter Stack, and whatever the theft brought was to be divided equally among them.

Walter Hale denied any and all connection with the conspiracy or the crime. Ann Lumley, a witness for the prosecution, identified Hale as one of the occupants of the car used in the theft and hence one of the conspirators.

The jury returned a verdict of guilty on the first two counts in the bill, not guilty on the third, and the fourth was dismissed by the court.

*413Tbe three defendants, Grady Jones, Claude Weldy, Jr., and Walter Hale, were each sentenced to imprisonment in tbe State’s Prison for a term of not less tban five nor more than ten years.

Tbe defendant, Walter Hale, appeals, assigning errors.

Attorney-General McMullan, Assistant Attorney-General Moody, and John R. Jordan, Jr., Member of Staff, for the State.

Deal & Hutchins, Fred S. Hutchins, and John H. Folger for defendant.

Stacy, C. J.

Tbe State’s case rests upon tbe testimony of two accomplices, and tbe supporting evidence of Ann Lumley. For factual similarity, see S. v. Rising, 223 N.C. 747, 28 S.E. 2d 221.

In charging tbe jury on tbe weight and credibility to be ascribed to tbe testimony of Grady Jones and Claude Weldy, Jr., tbe trial court used this language: “Now tbe court charges you that tbe State has offered two witnesses in this case who are accomplices within tbe meaning of tbe law. . . . Tbe State insists and- contends . . . that their testimony is supported by other facts and circumstances in tbe case, and that their testimony is not unsupported and does not go to your hands for your consideration as unsupported testimony of an accomplice. . . . Our Court has said this as to tbe law on accomplices: ‘The unsupported testimony of an accomplice, while it should be received by tbe jury with caution, if it produces convincing proof of tbe defendant’s guilt, is sufficient to sustain a conviction.’ That is as to tbe unsupported testimony of accomplices.

“(C) Now, when tbe testimony is unsupported, tbe court charges you that it is vour duty to scrutinize such testimony carefully and with care, great care, to see whether or not they are telling you tbe truth. (D).”

Tbe defendant excepts to tbe last portion of tbe charge between (C) and (H), because be says it carries tbe clear inference that if such testimony be supported, as here contended, it is not to be so scrutinized.

It bears against a witness that be is an accomplice in tbe crime and be is generally regarded as interested in tbe event. S. v. Roberson, 215 N.C. 784, 3 S.E. 2d 277. Tbe rule of scrutiny, therefore, applies to tbe testimony of an accomplice whether such testimony be supported or unsupported by other evidence in tbe case. 20 Am. Jur. 1088; 53 Am. Jur. 483 and 584. Of course, corroboration of such testimony, or tbe lack of it, may greatly affect its credibility or worthiness of belief in tbe eyes of tbe jury. But tbe rule of scrutiny and tbe weight of tbe testimony are different matters — the one belongs to tbe court; tbe other to tbe twelve. S. v. Beal, 199 N.C. 278, 154 S.E. 604. Tbe court is not required to charge on tbe rule in tbe absence of a request to do so, and *414bis voluntary reference to it rests in bis sound discretion. S. v. Herring, 201 N.C. 543, 160 S.E. 891. However, having undertaken to give tbe jury tbe rule of law applicable, tbe court was under tbe duty to state tbe rule correctly as applied to tbe evidence in the case. S. v. Correll, 228 N.C. 28, 44 S.E. 2d 334; S. v. Fairley, 227 N.C. 134, 41 S.E. 2d 88; Jarrett v. Trunk Co., 144 N.C. 299, 56 S.E. 937.

Tbe charge is susceptible of tbe interpretation, and we think tbe jury must have so understood it, that if tbe testimony of tbe accomplices were supported by tbe evidence of Ann Lumley, as tbe State contended, tbe rule of scrutiny would not apply. This was apparently prejudicial to tbe defendant’s case.

We have not overlooked tbe cases in which seemingly similar instructions have been upheld, but in none of tbe cases so far examined was tbe question here debated presented or decided.

Consideration of tbe remaining exceptions is omitted as they may not arise on another bearing.

Eor tbe error as indicated a new trial seems necessary. It is so ordered.

New trial.