The sole question presented upon the appeal is whether the Court was correct in instructing the jury that in any phase of the defendant’s testimony he was guilty. This excludes from our consideration the testimony in behalf of the State. We are of the opinion that the case should have been submitted to the jury with proper instructions, to the end that the jury should say what portion of the defendant’s testimony was true and what portion of it was untrue. His testimony, taken in one aspect, certainly establishes his guilt; it is equally true that taken in another *660aspect he was not guilty. It is the province of the jury to say what portion of the testimony they will believe and what portion they will reject. Taking his testimony alone, there is nothing to show that he went there for the purpose of provoking or engaging in a difficulty with the State’s witness. As he states the transaction, Flowers hit Hudson, Hudson threw a missile at him, and he was advancing on him, when he struck Hudson with the bottle. He says, “I had to strike him to keep him from striking me. lie was advancing on me when I struck him, but had nothing in his hands.” It is true that he says that he threw the bottle because Hudson threw the pot at him. It was the province of the jury to reconcile these statements, or reject that which they find untrue. If the jury shall find this to be a correct statement of the transaction, and shall further find that he had reasonable ground to apprehend that he would be stricken, that the witness was advancing upon him, and that he used no more force than was necessary, or reasonably appeared to be necessary under the circumstances, to prevent the assault, he would not be guilty. State v. Davis, 23 N. C., 125, 35 Am. Dec., 135. If, on the other hand, the jury should find that he threw the bottle at the witness because he threw the pot at him, he would undoubtedly be guilty; or, if they should find that he did not have reasonable ground to apprehend that he would be stricken, or having such reasonable ground he used excessive force, that is, more force than Avas necessary, or reasonably appeared to be necessary, he would be guilty. These are questions for the jury and not for the Court to decide.
If the jury find the transaction to be as testified by the State’s Avitness, he would undoubtedly be guilty; but, for the purpose of passing upon the defendant’s exception, we must take his testimony as being true, and exclude the consideration of the State’s evidence. AVe would suggest that *661this Court has held that the formula used by his Honor to the jury, that “if they believed the evidence they should convict the defendant,” is open to criticism. State v. Barrett, 123 N. C., 753; Sossamon v. Cruse, 133 N. C., 470.
Section 413 of The Code prescribes the duty of the Judge in charging the jury: “Pie shall state in a plain and correct manner the evidence given in the case, and declare and explain the law arising thereon.” We feel sure that the error of the learned and careful Judge who tried this case was an inadvertence. The testimony strongly tended to show the defendant’s guilt, and doubtless so impressed his Honor.
In the administration of the criminal law, it is wise to observe the “landmarks,” and preserve the well-defined rights and duties of the Court and jury.
The defendant’s exception to his Honor’s charge must be sustained, and for the errors complained of he is entitled to a
New Trial.