after stating the case: The offence created by the statute in question consists in the running of trains on Sunday by permission of the railway company. The statute is not so worded as to withdraw from its operation, by exception or proviso, trains which are run without the consent of the railway company, but the permission of the company is made an essential ingredient of the offence, and under well-settled rules of criminal pleading the State is' called upon to show the permission in order to convict the defendant. This is not imposing upon the State a burden of proof which it is impossible to carry or requiring it to prove a fact, the existence of which can be more easily established by the defendant, for the plain reason that when the State has shown that the train was actually run on a Sunday, it has adduced evidence sufficient to warrant the jury to infer that it was done with the defendant’s permission. It is a' circumstance sufficient, ai least, to support a conviction. It cannot be said, though, that the defendant is guilty simply because the train was drawn by one of the defendant’s locomotives, for this would be talcing evidence of .the fact that it was run with the permission of the defendant for the fact itself. Instead of charging the jury as he did", the Judge should have instructed them, not that the burden was on the *473defendant to show that the train was run without its permis-sion, which was telling them practically that the burden was on the defendant to acquit itself of the charge, but he should have charged that they should consider all of the testimony and find as a fact beyond a reasonable doubt that the defendant had permitted the train to be run on Sunday, before they could convict. The permission of the defendant is as necessary to the completeness of the offence, as- the running of the train itself. It is of the very substance of the crime. Instead of thus charging the jury, the Court excluded the doctrine of reasonable doubt from their consideration, by making the verdict of guilty depend upon the finding of a single evidentiary fact, and placing the burden of disproving the leading constituent element of the crime upon the defendant. The Court, under this statute, misplaced the burden of proof. It was upon the State and did not shift during the trial. The distinction is between a fact which is made an essential element of the crime by the statute, and one which, by virtue of a proviso or otherwise, merely withdraws the particular case from its operation, or excludes it from the prohibited class. Many illustrations of it are to be found in our decisions.
The first instruction in this case is not substantially different from the one given in State v. R. R., 145 N. C., 570. If the Judge had submitted the case to the jury upon the entire evidence, giving the defendant the benefit of the doctrine of reasonable doubt, and then told them that if they found the two essential facts, that the train was run on Sunday and with the permission of the defendant, the charge would have been in accordance with our ruling in that ca.se. That was not done, but the defendant was erroneously placed at a disadvantage by being required virtually to disprove the fact of permission. The jury must find the fact of guilt; the Judge only declares the law.
In State v. Simmons, 143 N. C., 618, 619, we said: “The *474jury are the constitutional judges, not only of the truth of testimony, but of the conclusions of fact resulting therefrom. The evidence may, in the opinion of the Court, have been ever so strong against the defendant, yet it was for the jury to find the ultimate fact of guilt, without any suggestion from the Court, direct or indirect, as to what that finding should be. (State v. Lilly, 116 N. C., 1049). The presumption of innocence and the doctrine of reasonable doubt (alike) require that method to be pursued, and it is clearly enjoined by the statute we have cited (Revisal, sec. 535), the restraining words of which define clearly the respective functions of Court and jury in the trial of causes.”
Upon the other question, as to the burden of proof, we need only refer to a few recent cases decided by this Court. “The general rule most undoubtedly is that the truth of every averment, whether it be affirmative or negative, which-is necessary to constitute the offence charged must be established by the prosecutor. The rule itself is but another form of stating the proposition that every man charged with a criminal violation of the law is presumed to be innocent until shown to be guilty, and it is founded, it is said, upon principles of natural justice, and so forcibly has it commended itself by its wisdom and humanity to the consideration of this Court, that it has never felt willing, whatever circumstances of difficulty might attend any given case, to disregard it.” State v. Wilbourne, 87 N. C., 532. That case was approved in State v. Connor, 142 N. C., 700. Even if the burden of proving that there was no permission to run the train was upon the defendant, the charge is still erroneous, because the ultimate fact of guilt was for the jury to find from all the evidence, and not for the court to declare. State v. Woodly, 47 N. C., 276; State v. Evans, 50 N. C., 250; State v. McDaniel, 84 N. C., 803. The last three cases are cited with approval in State v. Wilbourne, supra.
It is suggested that the Court should have charged the *475jury that, if they believed the evidence, they should convict the defendant. The Court could not well have instructed the jury to this effect, without disregarding material evidence in the case which tended to show the defendant’s innocence. It is quite true that there was evidence of the defendant’s guilt, but it was for the jury to say, at last, whether they were convinced of the defendant’s guilt by that evidence, when weighed with the other evidence in the case. We are not permitted to refer to matters not stated in the record, nor could the Court below or the jury consider them.
The statute under which the indictment was found is a very wise and wholesome one, and should be obeyed by the railway companies and enforced by the Courts, but a defend- . ant is entitled to have the question of its violation determined by the well-settled rules of law and, in any view we can take of the proceedings in the Court below, we think this was not done, and hence there was error.