
    STATE v. HERBERT MURPHREY.
    (Filed 26 September, 1923.)
    1. Criminal Raw — Pleas—Presumptions—Evidence—Questions for Jury— Trials.
    Tbe plea of not guilty raises a presumption of innocence of tbe defendant, disputes tbe credibility of tbe State’s evidence, and raises tbe question of bis guilt for tbe jury to determine.
    S. Spirituous Liquor — Evidence—Instructions—-Verdict Directing — Appeal and Error.
    In an action for tbe unlawful sale of liquor tbe evidence tended to show that the witness, a physician, obtained tbe liquor from the defendant for a patient, for which tbe defendant received money offered by tbe witness: Held, tbe transaction was an unlawful sale, coming within tbe inhibition of tbe statute, and an instruction by tbe court for tbe jury to find a verdict of guilty, if found to be true, was correct, there being no other evidence in the case.
    
      OeimiNal action, tried before Grady, J., and a jury, at February Term, 1923, of Greene.
    The defendant was indicted for tbe unlawful sale of spirituous liquor. Dr. W.' E. Dawson, -who was tbe only witness, testified for tbe State as follows: “I was on my way to see a patient suffering witb influenza, wben I met Herbert and asked bim if be bad any whiskey, and be said tbat be could let me have a quart. I said, ‘Shoot it over/ and gave him two one-dollar bills, and be gave me one quart of whiskey. He did not make any charges. I simply gave bim two dollars and asked bim if tbat was all right, and drove on. I have purchased whiskey from others and used it in treating my patients suffering with influenza.”
    His Honor instructed tbe jury as follows: “I charge you, gentlemen, if you believe tbe evidence in this case, you will return a verdict of guilty. You may retire and make up your verdict, or you may sit where you are.” Tbe defendant excepted. The jury returned a verdict of guilty, upon which judgment was pronounced, and tbe defendant appealed.
    
      Attorney-General and Assistant Attorney-General for the State.
    
    
      Richard T. Martin and Walter G. Sheppard for defendant.
    
   Adams, J.

Tbe defendant entered a plea of not guilty and thereby put in issue not only bis guilt, but tbe credibility of tbe State’s evidence; for evidence tending to she-./ guilt is disputed even wben uncontradicted, there being a presumption of innocence which can be overcome only by tbe verdict of a jury. S. v. Hill, 141 N. C., 770. Tbe State introduced only one witness, and tbe defendant offered no evidence. To establish guilt under these circumstances, it was incumbent on tbe State to show tbat Dawson’s testimony, if accepted by tbe jury, was sufficient to show a breach of tbe statute. Tbe substance of bis testimony Was this: He inquired whether tbe defendant bad any whiskey; tbe defendant said be could let bim have a quart; be gave tbe defendant two dollars, and tbe defendant delivered tbe liquor.

True, tbe witness said tbe defendant made no charges, but tbe testimony, if believed, clearly shows tbat tbe defendant received tbe money as a consideration for tbe transfer of bis title to tbe whiskey. This transaction constituted a sale (S. v. Colonial Club, 154 N. C., 177), and tbe credibility of tbe testimony was submitted to and determined by tbe jury.

His Honor’s instruction is sustained by several decisions. In S. v. Vines, 93 N. C., 493, there was only one witness, and tbe court charged tbe jury, if they believed tbe testimony, tbe prisoner was guilty of manslaughter. Discussing tbe prisoner’s exception, Merrimon, J., said: “It was insisted on tbe argument bere tbat tbe judge invaded tbe province of tbe jury in instructing tbem tbat, ‘if tbey believed tbe testimony of tbe witness, tbe prisoner was guilty of manslaughter.’ We do not think so; tbis contention bas not tbe slightest foundation. Tbe judge did not intimate in tbe least degree, in terms or by implication, that be did or did not believe tbe evidence to be true, nor did be tell tbe jury tbat tbey should believe it, or any part of it; be, in effect, told tbem tbat, in any possible view of tbe evidence (and taking it most favorably for tbe prisoner), if tbey believed it to be true, then, as a conclusion of law, be was guilty of manslaughter. Tbis was unobjectionable in tbis case. There was but one witness; there was no conflict of testimony; there were no alternative aspects of it to be submitted. Tbe credit of tbe witness and tbe sufficiency of bis testimony to produce conviction upon their minds was broadly and without qualification left to tbe jury. S. v. Walker, 4 N. C., 662; S. v. Hildreth, 31 N. C., 429; S. v. Ellick, 60 N. C., 450; S. v. Baker, 63 N. C., 276; S. v. Elwood, 73 N. C., 189; S. v. Burke, 82 N. C., 551.”

In S. v. Riley, 113 N. C., 648, Clark, J., observed: “Tbe evidence for the State being uncontradicted, tbe court told tbe jury, if tbey believed tbe evidence, to return a verdict of guilty. Tbis was correct, upon tbe evidence set out, and if tbe jury bad returned a' verdict, there would be no ground for exception”; and in S. v. Hill, 141 N. C., 769, Hoke, J., concluded tbat where, in any aspect of tbe testimony, tbe defendant’s guilt is manifest, tbe judge may tell tbe jury, “ ‘if tbey believe tbe evidence,’ or ‘if tbey find tbe facts to be as testified,’ tbey will return a verdict,” etc. S. v. Woolard, 119 N. C., 779; S. v. Winchester, 113 N. C., 641.

Our conclusion is not at variance with tbe decision in S. v. Singleton, 183 N. C., 738, or S. v. Hetes, 185 N. C., 752, for in each of these cases it was held tbat tbe evidence, if true, did not necessarily establish tbe guilt of tbe defendant, and tbat under a proper charge tbe matters in controversy should have been submitted to tbe jury.

We have directed attention to tbe fact tbat tbe testimony in tbe case at bar is uncontradicted; but even in instances of tbis character it would be more satisfactory if tbe court’s instruction to the jury followed tbe usual formula on tbe question of “reasonable doubt.”

We find no sufficient cause for a new trial.

No error.  