Where there is a conflict of testimony, which leaves a case in doubt before a jury, and the judge, in his instructions, uses language which may be subject to misapprehension, and is calculated to mislead, this Court will order a venire de novo.
PEARSON, C. J.
The evidence in this case leaves the matter so nearly on a balance as to require very great consideration on the part of the jury in order to determine on which side the truth preponderates. When that is the case, it is of the utmost importance that the words used by the judge in giving his charge should be precise and accurate and not susceptible of a meaning which would be calculated to mislead the jury. His Honor puts the case on the credit of the prosecutor, Jones, and instructs the jury that it was their duty to reconcile the testimony, if possible, and then suggests that a "collision" between the witnesses Jones and Bailey, the witness for the defendant, might be avoided on the supposition that Jones was mistaken as to the date of the supposed (141) trading with the slave. It is a rule of law, based on the principle that no witness, either on the side of the prosecutor or the defense, shall be presumed to have committed perjury; that the witnesses should not be put in collision, and a perjury on the one side or the other made inevitable, if the collision can be avoided by any other fair and reasonable view of the case as presented by the whole of the evidence. We presume his Honor intended so to be understood; but his words are much stronger, and were calculated to mislead.
His Honor also instructs the jury that in regard to the alleged contradiction of the witness Jones, in that he had said in conversation before the trial that all he knew of the negro's having taken the meat and trading it to the defendant was from what the negro had told him, whereas, on his oath, he stated that he had detected the negro in the very act of taking the meat, and had gone with him, and was present when the defendant committed the very act of trading with the slave, so that he had caught the defendant in the act, that this contradiction of the witness Jones was an immaterial matter, and went to his credit, if the jury believed it. There had been no objection to the competency of the witness Jones, so that we do not clearly understand what his Honor means by the words "went to his credit," in the connection in which they were used. Of course, this contradiction went to his credit, for it bore on the very fact, and ought to have had a very decided weight with the jury, if they believed it, in estimating the credit to which the testimony of the witness Jones was entitled. There is
PER CURIAM. Error.
Cited: S. v. Rogers, 93 N.C. 532; Withers v. Lane, 144 N.C. 190; Speed v. Perry, 167 N.C. 127.
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