State v. Godwin , 260 N.C. 580 ( 1963 )

Pee Cueiam.

The State offered plenary evidence to carry the case to the jury on the offense charged in the indictment.

Defendant .offered evidence tending to show an ¡alibi. He assigns as error the court’s charge on an alibi, which in effect placed the burden of proving an alibi on defendant. The assignment of error is good. S. v. Allison, 256 N.C. 240, 123 S.E. 2d 465; S. v. Spencer, 256 N.C. 487, 124 S.E. 2d 175; S. v. Walston, 259 N.C. 385, 130 S.E. 2d 636.

Defendant assigns ¡as error the verdict as rendered, upon which the judgment is based, on the ground that the trial judge told them in effect what their verdict shall be. In S. v. Gatlin, 241 N.C. 175, 84 S.E. 2d 880, the Court quoted with approval from Edwards v. Motor Co., 235 N.C. 269, 69 S.E. 2d 550, ais follows: “ ‘Where the findings are indefinite or inconsistent, the presiding judge may give additional instructions and direct the jury to retire again .and bring in a proper verdict, but >he may not tell them what their verdict shall be’.” The assignment of error is good. The Attorney General in his brief states:

“Certainly, it would have been proper for the judge to have re-instructed the jury at this time as to the proper possible verdicts ■and directed the jury to retire for further consideration. However, in inquiring of the jury .as to whether the intended verdict was not that of .being guilty of the most serious offense charged, the judge created a situation which the State has difficulty in distinguishing from that in State v. Gatlin, supra, in which case the Court ordered a new trial.”

The verdict .and judgment are vacated, and a new trial is ordered.

New trial.