The right to vote at an election is not perfected and does not arise in its completeness until the voter, otherwise eligible, has been registered as the law requires. Registration is essential. The constitution (art. 6, § 2) so expressly provides, and this court has so repeatedly decided. Southerland v. Goldsboro, 96 N. C. 49, 1 S. E. Rep. 760; Rigsbee v. Durham, 98 N. C. 81, 3 S. E. Rep. 749, and the cases there cited. Registration is evidence-prima facie evidence of the voter's right to vote, but it is not conclusive. His right may be challenged before the judges of the election, where he claims the right to vote, and the registrar, before the election and at any time before and at the election, as allowed by the statute, (Code, § 2677,) and his right may be afterwards questioned in any proper connection and way, in an action or other judicial proceeding. The registration book should be present and used for the purposes and as prescribed by law at the voting place while the election is in progress, and until all the votes are received. It should not, cannot, be dispensed with in any case, if it can be produced. But if it is lost, destroyed by accident, or made way with by fraud or for fraudulent purposes, the mere fact that, by reason of such causes, it is not present at the election as it should be, cannot deprive a registered voter of his right to vote. He had registered,--had perfected his right to vote by registration; he was a registered voter as much as if the registration book were present; and while this book is the proper and the better evidence of the fact, it is not the only evidence. He may offer evidence of the fact, if need be, by his own testimony, that of the registrar, and of such person or persons as were present and saw him registered. If, in such case, the judges of the election should not be satisfied that he was then properly registered, he should be allowed to vote; and he should be, although it might turn out that the absence of the registration book might in some way, and for some cause arising, destroy the validity of the election at that voting place. This is so because it might be, as in this case, that all the registered voters voted or had opportunity to vote. The law favors the right to vote, and entourages the just exercise of that right. The spirit of the political institutions of this country is that the government shall be controlled and administered by officers and agencies elected from time to time by the free voice of the people, expressed by the lawful electors at the ballot-box. is admitted that if the vote cast at the election in question held at Lewis' store was valid, then the relator was elected as he alleges. It appears that the regular registration book of that place, containing a list of the names of the registered voters there, had been lost some time before that election, and it was hence not present and used at it. It is admitted, however, that all the voters who voted there had been duly registered, either in the lost registration book or in the new one used by the regis

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to vote, and that no one entitled to vote was excluded. It is not suggested that the absence of the lost book in any way facilitated unlawful or fraudulent voting, or prevented legal voters from voting, or in any respect prevented a fair election; it is simply contended for the defendant that the absence of the lost book and the fact of its loss rendered the election illegal and void. For reasons already stated we think this contention is unfounded. The statute does not provide that the election shall be void at all events, if the registration book is not present at the election. Its presence is required for the purpose of facilitating the election; to promote honest voting and prevent dishonest voting, by its use in the way prescribed. It is intended to serve the purpose of a valuable and important help to the officers holding the election, and should and must be present when it may be. But if, for any cause, those who ought to produce it cannot, and the election is nevertheless held fairly and honestly,-all lawful voters vote, or have fair opportunity to do so, the election is not void, but valid, and the vote so cast should be counted. It appears that the registrar was furnished with a new registration book. On this book he entered a list of the voters registered in the lost book, so far as he could remember them, and likewise the names of such as were qualified and entitled to be registered, but had not been registered before that time. This was not unlawful, but certainly as to the newly-registered voters a substantial compliance with the statute. Code, § 2675. The relator was therefore elected as he claims to have been. The county commissioners could not destroy or impair his right to be inducted into the office to which he was so elected, by appointing the defendant to be sheriff. They had no authority to declare that he was or was not elected. When he presented to them his proper certificate of election, and showed to them that he had accounted as the former sheriff for public moneys wherewith he was charged as required by law, it at once became their duty to induct him into office according to law. Roberts v. Calvert, 98 N. C. 581, 4 S. E. Rep. 127; Hannon v. Grizzard, 96 N. C. 293, 2 S. E. Rep. 600.

It was further contended that the relator was the former sheriff of the county, and had failed to pay the proper officers the taxes due from him as required by the statute, (Code, § 2068,) and that he was therefore ineligible to be sheriff. This was not made the ground of the refusal of the county commissioners to induct him into office; they did not offer him opportunity to show that he had paid such taxes, as he alleged he had done; they appointed the defendant to be sheriff on the ground that the relator had not been elected as he claimed. But, in that view, there was no merit in such objection, because the evidence was competent, and the court below properly found as a fact that the relator had, at "the date of said election, settled and fully paid up to every officer the taxes which were due from him." There is no error, and the judgment must be affirmed. Judgment affirmed.

(104 N. C. 800)

STATE V. BOYLE.

(Supreme Court of North Carolina. Jan. 16, 1890.)

INSTRUCTIONS-STATEMENT OF EVIDENCE.

Code N. C. § 413, requiring the court in charging the jury to "state, in a plain and correct manner, the evidence given in the case, and declare and explain the law arising thereon," is not complied with where the court reads to the jury full notes of all the testimony in the cause, and tells them that he does this to refresh, and not to control, their recollection of the testimony, that it is their duty to remember the testimony, and that they ought to rely in the last resort on their own recollection.

Appeal from superior court, Wake county; ARMFIELD, Judge.

Indictment for rape. Verdict of guilty, and appeal by prisoner from the judgment pronounced.

Fuller & Snow and Battle & Mordecai, for appellant. The Attorney General and Devereux & Wilder, for the State.

MERRIMON, C. J. In this state it has ever been the duty of the judge presiding in courts over jury trials to give the jury appropriate instructions as to the law applicable to the issues on trial. He is not allowed to "give an opinion whether a fact is fully or sufficiently proven, such matters being the true office and province of the jury;" but he is expressly required by the the statute (Code, § 413) to "state in a plain and correct manner the evidence given in the case, and declare and explain the law arising thereon." This statutory requirement, enacted first substantially as it now appears in 1796, has always since then been regarded as imposing on the judges to whom it applied a very important, necessary, and, in many cases, difficult duty to discharge properly. The purpose of it is to have the law made intelligible to the jury; to have them on such trials instructed by the court clearly, explicitly, and correctly as to the law bearing upon the evidence submitted to them as a whole, and upon every material aspect of it, whether there be many or few such aspects; and likewise to have the court, while it carefully abstains from the slightest expression of any opinion as to the weight of the evidence, or that a factis or is not fully or sufficiently proven, help the jury, by a "plain, and correct statement of the evidence to apprehend, comprehend, appreciate, apply and determine the weight of it properly.' Such statement of the evidence should embrace an explanation of its nature, purpose, bearings, and groupings, and freeing it from possible misapprehension, occasioned by inadvertence, mistake, or the undue zeal of counsel in their argument to the jury or otherwise. The office of the judge in such connection is to help the jury to see the evidence bearing on the issue, and the law arising thereon, clearly, stripped of redundant, improper, and merely confusing matters and things, whether of evidence, argument, of counsel, or law. Jurors are generally plain, honest, sensible men, unskilled in the law, and not much accustomed to nice discriminations and distinctions in matters of evidence and fact. They need and require the superintending, guidance, and help of a

learned and just judge in reaching correct conclusions. Indeed, experience has shown that without them jurors seldom render intelligent and satisfactory verdicts. Hence the duty of the court on jury trials, particularly where there is much evidence, more or less conflicting, presenting several aspects of it, and it is peculiar or unusual in its nature, purpose, and application, is matter of serious moment, and not to be neglected or ignored. This is especially so in cases involving human life. There can be no intelligent or satisfactory trial by jury in cases of importance without a faithful discharge of such duty on the part of the court; and, when it appears that the party complaining may have been prejudiced by a neglect of it in whole or in part, this will be ground for a new trial. An erroneous impression seems to prevail to some extent that it is discretionary with the court whether it will or will not in any case state the evidence to the jury, and explain the law arising thereon.

This court seems to say so to some extent in State v. Morris, 3 Hawks, 388, and perhaps there are like intimations in other cases. But such cases, properly interpreted, apply only to plain cases that do not require such statement of the evidence and explanation of the law. Otherwise, they are not in harmony with a multitude of other decisions of this court to the contrary, nor are they consistent with the plain words of the statute cited above.

In State v. Moses, 2 Dev. 452, the court, after saying that the statute "restrains the judge from giving an opinion whether a fact is fully or sufficiently proven," adds: "At the same time it imposes another duty, which is to state in a full and explicit manner the facts given in evidence, and declare and explain the law arising thereon.

The act must be so construed as to leave the two duties compatible with each other; for neither clause must overrule the other. The full and explicit statement of the facts required from the judge cannot mean a mere repetition from his notes of the testimony in the order in which it was delivered. That would be a vain and empty .ceremony, consuming time without conveying instruction. If the judge is to say anything, and not to be a mere automaton, his statement must be such as to exhibit to the jury the nature of the plaintiff's cause of action and of the defense in point of law, the matters of fact in issue in the record, and also those in dispute between the parties upon the testimony actually given, tending to maintain, on either side, the main fact contained in the issue. To do this with the least prospect of affording aid to the jury, the judge is obliged to present the evidence in such a light as will divest it of all those immaterial parts that necessarily more or less incumber every trial, and to collate the residue so as to bring it to bear with the strength of combination on the points in controversy. He is so to present each fact, that it may have its fullest legitimate operation on the conclusion sought for; and, if on each side the evidence is thus exhibited, it cannot but ease the labors of the jury, lead them, through the convictions of their understanding, to a just de

termination, and give certainty and digni- | ty to the course of justice."

In Bailey v. Poole, 13 Ired. 404, the court said: “We do not consider a judge, under | the act of 1794, in delivering his charge on the facts of a case, to be a mere machine to detail to the jury the evidence just as it occurred and in the order it occurred; but It is his duty, when he does charge upon it, to collate it, and bring it together in one view, on each side, with such remarks and illustrations as may properly direct their attention."

In State v. Dunlop, 65 N. C. 288, the court again said: "We concur with the counsel for the prisoner in his view of the charge of the judge. We think it did not give that distinct and plain response to the questions raised which the statute requires. On this point, the statute is only declaratory of the common law. It is impossible to frame any general formula which can supersede the distinct application of the law to the particular alleged state of facts, or dispense on the part of the judge with the active exercise of his intelligence. This duty is the special duty of the judge; for this mainly is he required to possess ability and learning; and to evade or slight it is to renounce the most difficult, but also the most useful and honorable, duty of his office. All lawyers know that to eliminate facts, to put those which are material in their proper order, and to apply the law to them, as a whole, taxes many times the strongest intellect, and always requires an amount of learning and practiced ability which a jury is not supposed to possess, and which it is evident they cannot acquire through the hearing of any general dissertation of the law, however clearly it may be expressed. For these reasons we think the prisoner entitled to a new trial.

In State v. Matthews, 78 N. C. 523, it is also said: "It will be seen, from the manner in which we have reviewed the instructions of the able and learned judge who presided at this trial, that, in our opinion, a judge who presides at a trial in which human life is at stake does not fully perform the duties which his office imposes on him, by stating to the jury, however correctly, principles of law which bear more or less directly but not with absolute directness, upon the issues made by the evidence in the case. To do that only, is easy, and almost mechanical. We think he is required, in the interests of human life and liberty, to state clearly and distinctly the particular issues arising on the evidence, and on which the jury are to pass, and to instruct them as to the law applicable to every state of the facts which upon the evidence they may reasonably find to be the true one. To do otherwise, is to fail to 'declare and explain the law arising on the evidence.'"

In State v. Jones, 87 N. C. 547, the court declined to "inquire whether there is any error in the principles of law laid down," and grant a new trial, simply on the ground that the court had not stated the evidence, and explained the law arising thereon. The court say that, "in his honor's main charge to the jury, there is no pretense of an array of the facts, and therefore no application of the propositions of

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law laid down to the different state of facts. Numerous cases, and particularly State v. Rogers, 93 N. C. 523, and Holly v. Holly, 94 N. C. 96, are directly and strongly to the same effect. Also State v. Rippy, ante, 259, (decided at this term.)

We thus cite and quote largely from several cases to show that it is the indispensable duty of the judges to observe carefully the statute cited, and that it is as well very important that they should do so; and that a failure in such respect is ground for a new trial, when it appears that a complaining party may have suffered prejudice by such failure. This is too well settled in this state to be questioned, and we may add that such observance of duty is essential to just trial by jury in most cases. To discharge successfully such duty on the part of the presiding judge, in many cases, requires the exercise of a high order of ability, much and accurate knowledge of the law and its application, of the rules of evidence, of the nature and purpose of evidence, and its bearing and application on the trial of issues. In the discharge of scarcely any of his high duties is he called upon to display greater talent and judicial skill than in his instructions to juries upon the law and evidence. Such duty is the more difficult because he cannot be governed in respect to it by any definite plan or formula. He must be governed by the nature, circumstances, and evidence of each case before him. This court has repeatedly, in the cases cited and others not cited, pointed out as definitely as practicable the nature and compass of the duty, and how it should be discharged. Discussing it in State v. Moses, supra, Judge RUFFIN said: "If I were to lay down a rule as growing out of this act of assembly, I would say that it was in general this: that the weight of the evidence is for the jury; they hold the scales for that. But the nature, relevancy, and tendency of the evidence it is competent for the judge and his duty to explain. He is not only to recapitulate the testimony, but to show what it tends to prove, and he may recapitulate it in such order and connection as to give it the effect of proving the facts sought for, if in itself it be sufficient for that purpose. Whether it be sufficient, it is the province of the jury to determine, and by this statute it is their exclusive province; and the judge cannot give his opinion, in aid of theirs, that it is or is not sufficient. But if he is to speak at all (and this act makes it his duty to speak) it is not to be supposed that his interposition is for the sake of increasing the doubts of the jury, or leaving them as they were, but his discussion of the case, fair, grave, sensible, and impartial, may enable the jury better to decide upon the sufficiency of the proof, though deprived of the advantage of his opinion on that point." There can therefore be no doubt as to the imperative duty of the court in the respect mentioned on jury trial, its nature and purpose, and the manner of its proper discharge.

Now, turning to the case before us, without scrutinizing the statement of the law of rape made by him, we feel constrained to say that, in our judgment, the learned judge who presided at the trial, failed to

The prisoner's counsel, in apt time, requested the court to direct the attention of the jury to specific parts of the evidence tending to discredit the evidence of the prosecutrix, and instruct them as to its nature, bearing and application. The court declined to do so, "because he considered them unnecessary and substantially embraced in the charge he gave." The prisoner excepted, and afterwards assigned as error that the court "did not in charging the jury eliminate the material facts of the case, array the state of facts on both sides, and apply the principles of law to them, so that the jury might decide the case according to the credibility of the witnesses and the weight of the evidence." Thus the exception is broad and comprehensive.

Numerous witnesses were examined, both for the state and the prisoner. The evidence was voluminous, and in very material respects, directly and strongly in conflict. This was particularly so as to the evidence of the prosecutrix and the prisoner. There was evidence tending to corroborate that of the former, and other evidence that of the latter, and likewise other evidence tending to discredit that of both the prosecutrix and the prisoner. Much of the evidence was peculiar to the crime of rape, and required explanation as to its nature and application. A clear and lucid statement of the evidence both for the prosecution and for the defense, and an explanation of its bearings and the law applicable in that connection, was necessary to enable the jury to settle and find material disputed facts of the evidence to be applied in reaching a just conclusion as to the issue submitted. Hence the jury especially needed the important aid of the able judge who presided at the trial, not to tell or intimate to them that a fact was or was not proven, nor to express an opinion as to the weight of the evidence,-but to superintend and direct their inquiries by appropriate statements of the evidence, explanations, and instructions. Having stated the law of rape applicable, and explained the issue submitted, he should have stated in an orderly manner the contentions and evidence of the prosecution,-the principal evidence, -all the material points of it, and the corroborating evidence of whatever kind, and the law arising upon the same. The bearings of one part of the evidence upon another-its relations and purposes-should have been pointed out. The jury could not, and did not, do this satisfactorily. No one but the learned judge could have done it, and the law charged him to do it. That done, the jury would have seen clearly, as the law contemplates they should do, the whole force and strength of the case for the state. Then the court should in like manner have stated the contentions and evidence of and favorable to the prisoner, the principal evidence,-and all the corroborating evidence, of whatever kind, and the law arising thereon. In this connec

tion, the court, as requested to do, should, for proper purposes, have called the attention of the jury to the evidence as to the time, the public location of the house, and the chamber in the house where the alleged rape was committed; the presence of persons in, about, and near the house who could have heard, but did not hear, any outcry of the prosecutrix; that after the alleged rape she washed her face and arranged her hair in the prisoner's chamber, and at once joined her companions in the yard of the house, and went a considerable distance with them, stopping on the way, without telling them that she had been outraged. The court should have explained the nature and purpose of this evidence, and told them that, if it were true, the law made such facts and circumstances evidence-strong evidence-to the discredit of the prosecutrix; its weight, in view of all the other evidence, to be determined by them. Of course, it should likewise, in the proper connection, have stated the evidence intended to be explanatory and countervailing of the prosecutrix in such respects, and explained its bearings.

It appears that in the course of its charge -near its close-the court "read to the jury full notes of all the testimony in the cause, and told them that he did this to refresh, and not control, their recollection of the testimony; that it was their duty to remember the testimony, and they ought to rely in the last resort on their own recollection." It has been repeatedly decided that this is not a compliance with the statute, nor does it serve the important and necessary purpose intended by it. Nor did the very general remark of the court that the evidence, other than that of the prosecutrix and the prisoner, was "only used by them as bearing on the question whether this admitted carnal intercourse took place with the consent of the prosecutrix, or whether it was had by force, or such fear as he had before described, and against her will." The jury were substantially left to digest, classify, and apply the voluminous, conflicting evidence, much of it peculiar in its nature and force, without the valuable, necessary, superintending, and directing aid of the court in stating it in an orderly manner, pointing out its nature, purpose, bearings, and application. There could scarcely be a case in which such aid would be more important. We know, from our knowledge of trial by jury, our experience and observation, that in such cases as the present one, without the aid of the court as we have indicated, the verdict of the jury, however honest their purpose, is too often the result of a lack of intelligent comprehension and application of the evidence, because of their want of knowledge of the law and experience in the application of evidence. Trial by jury is worthy of all commendation as a method for the ascertainment of truth, but to make it effective, and what the law contemplates it should be, requires the superintending and directing aid of the court. We do not deem it necessary to advert to numerous other exceptions, most of which are with out merit. One or two of them raise interesting questions, that will hardly arise again. There is error. The prisoner is en

titled to a new trial, and we so adjudge. To that end, let this opinion be certified to the superior court. It is so ordered.

(104 N. C. 638)

POLLOCK V. WARWICK. (Supreme Court of North Carolina. Jan. 15, 1890.) PAROL EVIDENCE-MISTAKE-APPEAL-COSTS.

1. Plaintiff, who held chattel mortgages against defendant, took from him new mortgages, which according to their agreement were to take the place of and satisfy the old ones, and after they were executed he left them with defendant to be registered, with the understanding that on their return to him he was to surrender the old mortgages. On receipt of the new mortgages he discovered a mistake in one of them, of which he notified defendant, but he did not return the mortgage. Plaintiff then seized the mortgaged property, and took for its delivery a forthcoming bond. Held that plaintiff, having treated the new mortgages as an executed contract, cannot have their terms varied, except on proof of fraud or mutual mistake, and the burden is on him.

2. A mere preponderance of evidence is not sufficient to show mistake in a mortgage, but there must be clear and convincing proof.

3. It is the duty of counsel to assign errors in the charge of the court when making out the case on appeal, and not wait to take exception for the first time before the appellate court. Following McKinnon v. Morrison, ante, 513.

4. Where plaintiff recovers no more than the amount tendered him by defendant before suit was brought, and, on his refusal to accept it, paid into court, he should be taxed with costs.

Appeal from superior court, Mecklenburg county; E. T. BOYKIN, Judge.

Action for damages for the breach of the conditions of a forthcoming bond given by defendant for the delivery of property embraced in a chattel mortgage executed by him to plaintiff. Plaintiff held mortgages on defendant's stock of goods, and afterwards they had a settlement, plaintiff taking new mortgages from defendant in satisfaction of the old ones. The new mortgages were left with defendant to be registered, and on their return to plaintiff he was to surrender the old ones. When they were registered and sent to plaintiff, he discovered that the amount in one of them was wrong, and he notified defendant, but retained the mortgage. Afterwards he seized the property embraced in it, and took from defendant a forthcoming bond for its delivery. In a suit on the bond there was judgment for plaintiff for less than the amount claimed by him, and he appeals. Burwell & Walker, for appellant. ington & Adams, for appellee.

Cov

CLARK, J. The plaintiff contends that, as he had the legal title to the property under the mortgages of 1884, if the mortgages of 1885 were given in the satisfaction of those of 1884, the burden was on defendant to show it. This would be true, but plaintiff's own evidence is to the effect that the new mortgages were "to take place of and go in full satisfaction" of those of 1884; that they were "executed to him," (which includes a delivery to him;) that he then left them with defendant to be registered, and on their return, when registered, he was to surrender up the mortgages of 1884; that on their receipt he discovered a mistake of $200 in one of the new mortgages, and notified defendant, but did not return him the new mortgages; that he

seized the property covered by the new mortgages, some of which was not embraced in the antecedent mortages, and the bond sued on was given for the forthcoming of the property covered by the new mortgages. As there is no claim that the new mortgages were given as additional security, but "in full satisfaction" of the former ones, such conduct would seem to show that plaintiff was resting his claim on the mortgages of 1885, probably by reason of the additional property embraced in them. If at the trial, however, he wished to present for decision, as he now does, an issue of fact as to "what was the oral agreement of the parties as to the surrender of the mortgages of 1884,"-whether it was conditional or absolute, executed or executory, he should have done so by tender of an issue or prayer for appropriate instructions. On the contrary, he treated the exchange as an executed agreement, and relied upon the alleged mistake as to the amount. The case on appeal states: "After the close of the evidence and the argument of counsel, the court remarked that the whole matter seemed to depend upon whether or not there had been a mistake made in the execution of the $25 mortgage as to the amount. To this the counsel on both sides assented." This is not an admission of law, but of fact. Treating the new mortgages, therefore, as an executed contract, as plaintiff had done by seizing property embraced in them, (and not in the old mortgages,) by taking the forthcoming bond sued on for such, and by his conduct at the trial, its terms could not be varied or altered as to amounts or other

wise, except upon proof of fraud or "mutual mistake." The burden to prove such is on the plaintiff. By the solemn agreement of the parties, the written agreement is strong and high proof of the true contract between the parties.

The quantum of proof required to show mistake was correctly charged by the court. A mere preponderance of the evidence would not be sufficient. There must be clear and convincing proof. Jones v. Perkins, 1 Jones, Eq. 337; Ely v. Early, 94 N. C.1; Harding v. Long, 103 N. C. 1,9 S. E. Rep. 445. The mistake to support an equity must be a mutual mistake. Kornegay v. Everett, 99 N. C..30, 5 S. E. Rep. 418; McMinn v. Patton, 92 N. C. 371. There is no evidence tending to show fraud or advantage taken of one party by the other. The point made by plaintiff in this court, that the quantum of proof charged by the court as requisite to correct a mistake applies only when both pleadings and proof are in a case strictly equitable, comes singularly enough from him. When by his admission on the trial, supra, that the issue or controversy was as to whether there vas a mistake in the mortgage, as he had pleaded no mistake he was bound by the terms and amount of the mortgage under which he had seized the property (part of it not being embraced in the former mortgages) for which the forthcoming bond sued on was given. He cannot complain that he was allowed, upon proper quantum of proof, to show a mistake when he had not entitled himself by properly pleading it to do so.