Tbe first assignment of error to be considered is based on. tbe exception to tbe refusal of bis Honor to sustain tbe defendants’ motion for judgment as of nonsuit. Tbe ruling of tbe court below in tbis respect as to tbe defendant Brown, will be upheld. However, we do not think tbe evidence as disclosed by tbe record is sufficient to sustain a verdict of guilty as to tbe defendant Warren.
There is no evidence tending to establish tbe guilt of tbe defendant Warren other than bis presence with Broyhill and Brown on tbe night of 15 July, 1946, unless tbe conversation which took place in tbe jail between tbe witness Sprinkle and Warren may be interpreted as a confession of guilt. We do not think tbis conversation should be so construed. Tbis view is supported by Sprinkle’s testimony on cross-examination. Sprinkle informed Warren that all be would have to do to get out of trouble would be to give Broyhill so much money. It cannot be fairly inferred as a confession of guilt when such a proposal was made for bim to reply “Go get my Daddy and Broyhill.” Tbe motion for judgment as of nonsuit should have been allowed as to tbe defendant Warren.
Tbe defendant Brown assigns as error tbe admission of evidence tending to show that one of tbe shoes worn by bim when be was arrested bad a sole worn down to tbe canvass, that tbe shoe made a peculiar mark on tbe ground, and that tbis shoe fit perfectly into tracks found in tbe cornfield where Broyhill slept on tbe night of 15 July, 1946. Tbis evidence was competent and tbe assignment of error cannot be sustained. S. v. Walker, 226 N. C., 458, 38 S. E. (2d), 531; S. v. Mays, 225 N. C., 486, 35 S. E. (2d), 494; S. v. McLeod, 198 N. C., 649, 152 S. E., 895.
Tbis defendant also assigns as error tbe failure of tbe trial Judge to define circumstantial evidence and to instruct tbe jury bow to appraise or evaluate such testimony. In tbe absence of a request to do so, tbe failure of tbe court to instruct 'the jury regarding circumstantial evidence, or as to what such evidence should show, will not be held for reversible error, if tbe charge is correct in all other respects as to tbe burden and measure of proof. S. v. Shook, 224 N. C., 728, 32 S. E. (2d), 392. However, when tbe trial Judge does charge tbe jury regarding *25circumstantial evidence no set formula is required, but an instruction substantially as given in S. v. Stiwinter, 211 N. C., 278, 189 S. E., 868, and approved in S. v. Miller, 220 N. C., 660, 18 S. E. (2d), 143, is required. There tbe Court said: “When tbe State relies upon circumstantial evidence for a conviction, tbe circumstances and evidence must be sucb as to produce in tbe mind of tbe jurors a moral certainty of tbe defendant’s guilt, and exclude any other reasonable hypothesis. . . . See, also, S. v. Madden, 212 N. C., 56, 192 S. E., 859, where’ Barnhill, J., fully-discusses tbe subject. See, also, 23 C. J., 149, 150, 153.”
It makes no difference whether tbe State is relying on circumstantial or direct evidence, or both, tbe evidence must produce in tbe mind of tbe jurors a moral certainty of tbe defendant’s guilt, otherwise tbe State has not proven bis guilt beyond a. reasonable doubt.
Tbe charge of bis Honor in tbe trial below is free from prejudicial error.
We have examined tbe other assignments of error and they are without merit.
We find no error in tbe trial below as. to tbe defendant Odell Brown.
Tbe judgment as to Eugene Warren is reversed.
On Brown’s appeal — No error.
On Warren’s appeal — Reversed.