Upon the trial in Superior Court the court, in charging the jury, read the provisions of the statute, O. S., 4200, that “A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed to be murder in the first degree and shall be punishable by death,” and stated that where the killing is by any of the means defined in this statute the element of premeditation and deliberation is presumed. Then the court proceeded to give the following instructions which defendant assigns for error:
“Now, in this case, gentlemen, and I want you to listen at me carefully, in this case the defendant, the prisoner at the bar has gone upon the stand, and he has admitted that the deceased, Anderson Clark, was sitting in a room in a house which was his home; that two or three other people were in the room; that Anderson Clark was sitting in a rocking chair with both of his hands thrust in the jacket of his overalls; that at that particular time he was not doing anything at all in aggravation, or anything at all which would have caused the defendant to think that *615be was going to barm bim; tbat be went out into tbe kitchen and took down a sbot gun and inserted in tbat sbot gun a cartridge, wbicb be bad bought a few days prior thereto; tbat be then went around tbe bouse to a window where one of tbe sash, where one of tbe lights bad been knocked out and where a piece of card board bad been substituted in tbe place of tbe light; tbat be removed tbat card board, placed bis gun through tbe sash, and blew this man’s brains out, killing bim instantly.” Exception No. 12.
“I charge you, gentlemen, upon tbat statement from tbe defendant, nothing else appearing, be is guilty of murder in tbe first degree, because tbe method of tbe killing admitted by bim, comes directly and exactly within tbe purview of tbe statute wbicb I have just read to you.” Exception No. 13.
“Now, there is no need of my referring to the testimony of other witnesses, because tbe defendant himself has admitted every single element wbicb goes to make up tbe crime of murder in tbe first degree except one, and tbat is, gentlemen, be contends, and bis only defense as argued to you through counsel, is tbat at tbe time of tbe killing be did not have mental capacity sufficient to premeditate and deliberate, and tbat at most you can only convict bim of murder in tbe second degree.” Exception No. 14.
Defendant contends tbat tbe charge as thus given by tbe court is violative of tbe provision of tbe statute, C. S., 564, wbicb provides that: “No judge, in giving a charge to tbe petit jury, either in a civil or criminal action, shall give an opinion whether a fact is fully or sufficiently proven, tbat being tbe true office and province of tbe jury . . .” C. S., 564. With this contention we agree. See S. v. Dixon, 75 N. C., 275; S. v. Riley, 113 N. C., 648, 18 S. E., 690; S. v. Green, 134 N. C., 658, 46 S. E., 761; S. v. Hill, 141 N. C., 769, 53 S. E., 311; S. v. Langley, 204 N. C., 687, 169 S. E., 705; S. v. Maxwell, 215 N. C., 32, 1 S. E. (2d), 125.
Speaking thereto in tbe case of S. v. Dixon, supra, tbe Court said: “This statute is but an affirmance of tbe Constitution, Art. I, sections 13-17, and tbe well settled principles of tbe common law, as set forth in Magna Charta. Tbe jury must not only unanimously concur in tbe verdict, but must be left free to act according to tbe dictates of their own judgment. Tbe final decision upon tbe facts rests with them, and any inference by tbe court tending to influence them into a verdict against their convictions is irregular and without tbe warrant of law. Tbe judge is not justified in expressing to tbe jury bis opinion tbat tbe defendant is guilty upon tbe evidence adduced ... If, in tbe case before us, tbe evidence bad made a clear case of guilt against the prisoner, still its credibility was for tbe jury, and it should have been so submitted *616to them by tbe court, for they must say whether they believe or disbelieve it.” S. v. Mill, supra.
Again, in the Hill case, supra, Móke, J., writing for the Court, states: “When a plea of not guilty has been entered and stands on the record undetermined, it puts in issue not only the guilt, but the credibility of the evidence. As is said in S. v. Riley, 113 N. C., 648, 'The plea of not guilty disputes the credibility of the evidence, even when uncontradicted, since there is a presumption of innocence which can only be overcome by a verdict of a jury’ . . . And this has been held to be the correct doctrine, though guilt may be inferred from the defendant’s own testimony as in S. v. Green, 134 N. C., 658.”
In 8. v. Langley, supra, it is stated that the credibility and probative force of the evidence is for the jury. And in 8. v. Maxwell, supra, Schenclc, J., writing for the Court, uses this language: “The defendant had pleaded not guilty and the presumption of innocence followed him until removed by the verdict of the jury . . . the credibility of the testimony being for the jury to determine.” And, further, “Under our system of trial the judge is prohibited from expressing an opinion as to defendant’s guilt,” citing and quoting from S. v. Dixon, supra.
Moreover, in this State a defendant will not be permitted to plead guilty to murder in the first degree. It is provided in C. S., 4642, that “the jury before whom the offender is tried shall determine in their verdict whether the crime is murder in the first or second degree.” In S. v. Matthews, 142 N. C., 621, 55 S. E., 342, the Court states that this section applies equally to all indictments for murder, whether perpetrated by means of poison, lying in wait, imprisonment, starving, torture or otherwise.” C. S., 4200. See, also, S. v. Bazemore, 193 N. C., 336, 137 S. E., 172.
Applying these principles to the facts in the present case, it is manifest that the portions of the charge to which the exceptive assignments relate are contrary to the law as declared in this State, and infringe upon substantive rights of the defendant. The court, instead of leaving it to the jury to pass upon the credibility of the evidence and to find from the evidence beyond a reasonable doubt all of the elements necessary to constitute the crime of murder in the first degree, in effect passes upon the credibility, and finds or assumes the facts to be as testified by defendant, and rules that the statement of defendant constitutes an admission of “every single element which goes to make up the crime of murder in the first degree, except one,” that is, “that at the time of the killing he did not have mental capacity sufficient to premeditate and deliberate.” Thus the jury is told that in order to convict defendant of murder in the first degree the only factual element left for it to find is that defendant *617bad mental capacity sufficient to premeditate and deliberate. This is contrary to law in the State, and is error, for which defendant is entitled to a
New trial.