The rules and regulations adopted by the State Highway and Public Works Commission for the control and discipline of prisoners committed to its custody and intended for the guidance of those who have their immediate control cannot confer upon the latter immunity for disciplinary acts which would otherwise be offensive to the criminal law, unless the particular regulation, per se, is within the authority of the statute relied upon, and the statute itself not violative of the provisions of the Constitution. Section 148-11 of the General Statutes, on which the appellant claims authority for the disciplinary measures taken, reads as follows:
“The state highway and public works commission may adopt such rules and regulations for enforcing discipline as their judgment may indicate, not inconsistent with the constitution and laws of the state. They shall print and post these regulations in the cells of the con-victsj and the same shall be read to every convict in the state prison when received.”
This statute is supplemented in appellant’s brief by G.S. 148-20, reading as follows:
“It is unlawful for the state highway and public works commission to whip or flog, or have whipped or flogged, any prisoner committed to their charge until twenty-four hours after the report of the offense or disobedience, and only then in the presence of the prison physician or prison chaplain; and no prisoner other than those of the third class as defined in this article shall be whipped or flogged at any time.”
S. v. Nipper, 166 N.C. 272, 81 S.E. 164, furnishes a complete background of the law as it stands at present, (G.S. 148-20). The constitutionality of the statute (G.S. 148-11) was upheld in S. v. Revis, 193 N.C. 192, 136 S.E. 346, in an opinion by Chief Justice Stacy which touches *239practically every phase of the question now before us. But to render lawful any corporal punishment directly provided for in the act or by analogy supposed to be within the authority of the rules and regulations provided for in the preceding section, Gr.S. 148-11, that sort of discipline must be within the rule of reason contemplated by the statute; and excessive punishment may deprive the perpetrator of its protection. S. v. Mincher, 172 N.C. 895, 90 S.E. 429.
It should be made clear that if the Commission has, under the supposed authority of the statute, adopted rules for discipline of prisoners by punishment or corrective measures not within its purview, the principle of regard for administrative interpretation evidenced by practice will not control; and the fact that the defendant may have supposed himself to be-within the performance of a regimented duty is not a defense.
In a fair consideration of this case we must take note of the fact that prison discipline in this country has been developed in an atmosphere of sterner justice through the courts than that which now prevails, and has taken on that flavor. But during the years both the courts and the executive administration of its edicts have been greatly mollified by more modern, if not more effectual philosophy respecting crime and its punishment; and we have finally come to the point where it has become a question for the humanitarians, (and we all wishfully, at least, belong to that class), the criminologists, and experienced officials working in the field of prison control as to what manner and degree of discipline is best suited for the purposes of the criminal law, and may with propriety and observance of the humanities be applied. The passage between Scylla and Charybdis has not been free from conflicting storms of acrimonious criticism.
We certainly have not time or space in this opinion for any dissertation on the ultimate purpose of enforcing the criminal law, — whether for the punishment of the crime or the reform of the prisoner. Conceding it to be. both, it is obvious, we think, that neither philosophy would he best served by permitting open rebellion or insolence, or such disobedience to the custodial will as would nullify the mandate of the Court, breed disrespect for the law and contempt for those who must enforce it.
With the Court itself which tries the accused and determines his guilt and attempts to measure the debt which he owes to society, as well as whether the debtor may, in some respects, be salvaged from his antisocial behavior, the task is more practical than theoretical. Humanitarian considerations, as far as the Court may consider them, (and there is no other phase of the judge’s duty that is so difficult and usually so conscientiously faced), these are reflected in the judgment rendered, often leading to probation, many judges no doubt properly thinking the penitentiary or prison is a poor college from which to graduate the subsequent *240citizen. Tte duty of the Court, however, ends with the judgment; and we come to the very practical question which boils up to the top of the pot in cases like these: What rights does a prisoner of the law retain when the sentence of the Court is announced and he is inducted into hiá new station or status; and what rights has he surrendered to society ?
In the first place it is clear that his status is not expressly fixed by the judgment of the Court, — that does not reach forward and minutely detail his treatment in his new station; there is something over when the sentence is imprisonment, or imprisonment “at hard labor.” Human elements are to be dealt with, — the things which custodians may or may not do to him. Some of them are necessarily implied in the sentence and incident thereto; and some of them must be in accord, to some extent, with the prevailing mores of the people who stand back of the law.
We observe in the first place that as a matter of conclusive inference, the prisoner has, with the temporary surrender of his corporal freedom, also parted with some of those rights and liberties that are pertinent to the free civilian in exercising his will as he may desire. The sentence to imprisonment at hard labor carries with it more than a mere willingness on the part of the prisoner to comply with these conditions. A want of willingness must be supplied by reasonable encouragement, or corrective measures. All of them are imposed upon him in invitum; and he has surrendered those rights of free choice and action which must of necessity be abridged in order that the mandate of the Court may be carried out effectively.
In the second place he has forfeited his free choice of conduct, of engaging in practices calculated to destroy the order and effectiveness of the institution to which he has been committed. We all agree to this.
But, in all cases where the rule of reason is the important factor or coefficient of action, there is an extensive area in which there are no sharply drawn lines leading to easy definition; instead a twilight zone, on One side of which conduct may not be challenged as other than lawful or innocent, and on the other is clearly nocuous. Even the discretionary power of the judge, ordinarily unreviewable, may come within appellate correction because of its abuse.
We cannot, therefore, accept the theory suggested by the defense that because the mode of punishment meted out to the prisoner was specified in the regulations, it was, therefore, necessarily lawful. The manner of its application as testified to by the prisoner, the extent to which it was carried, the period during which it continued, the want of attention during that time, taken in connection with the lack of food and water, and rest from a position intended to inflict discomfort, and which unreasonably protracted was calculated to produce serious injury,- — we cannot say that these did not go beyond the rule of reason and render its *241perpetrator liable to the law. Fifty or sixty hours of such treatment in the manner disclosed by the State’s evidence might well raise the question whether the Creator has fashioned the human frame to withstand serious consequences to bone and sinew, not to mention that central nervous complex at the receiving end of pain ahd misery.
We express no approval of the regulation immediately concerned or the mode of its enforcement, and we think the conception of the treatment given the prisoner as not being “corporal punishment” is neither dictionary-wise nor penologically-sound. Why an ex post facto approval of the punishment inflicted should be required, or what effect it is supposed to accomplish does not appear. In so far as the disciplinee is concerned it is Lydford law.
It is unfortunate that the defense of the superintendent charged with the violation of the law resolves itself into a defense of the system, of the regulations and administrational practices which it is contended justify in law the excesses exemplified in the punishment inflicted on the Prisoner Lett as detailed in the State’s evidence. Since these rules and regulations have been put in evidence as exculpatory of the defendant, and evidence of official character offered to show that practices similar to that with which we are now dealing are common in prison camps throughout the State, it becomes necessary for us to say that however these disclosures may be received in nonjudicial circles, we find them so inconsistent with the rule of reason contemplated in the statute and so repugnant to natural justice that we cannot regard them as conferring any immunity on the defendant in the instant case.
The original warrant on which the defendant was tried in the recorder’s court charged an “assault attended with cruel and unusual punishment.” In the Superior Court from which this appeal-comes, the Solicitor moved to amend the warrant to have the charge read “inflicting serious injury.” This was allowed over the defendant’s objection and exception. Conceding that an amendment to the warrant completely changing the offense with which the defendant was charged could not be made, the nature of the amendment does not present a violation of the rule. The descriptive matter supplied is merely in aggravation of the assault. That might in certain instances have a jurisdictional bearing; but not here. The Special County Court of Eichmond County was created under the general law, now G.S. 7-405, et seq.j and by G.S. 7-435 all criminal offenses under the grade of felonies have been declared petty misdemeanors respecting the jurisdiction of the courts. G.S. 7-435; S. v. Shine, 222 N.C. 237, 22 S.E. 2d 447; S. v. Camby, 209 N.C. 50, 182 S.E. 715; S. v. Hyman, 164 N.C. 411, 79 S.E. 284. The amendment, permissible in the County Court, was properly made in the Superior Court. G.S. 7-149, Rule 12; *242 S. v. Brown, 225 N.C. 22, 23 S.E. 2d 121; S. v. Wilson, 221 N.C. 365, 20 S.E. 2d 273; S. v. Holt, 195 N.C. 240, 141 S.E. 585.
It follows that tbe motion to quasb the warrant and the motion for arrest of judgment are without merit. Demurrers to the evidence were properly overruled.
But we think that while the trial judge was justified in submitting the evidence to the jury, she suffered a casualty in giving to the jury the following instruction:
“If you do not believe the evidence of the defendant beyond a reasonable doubt, then in that event only, would you return a verdict of not guilty.”
The instruction is doubtless based on the theory that the defendant, as witness in his own behalf, had made such admissions as would have to be discounted, or unbelieved, before his acquittal could be had.
However this process may enter into and direct our thinking, the Court has never, we believe, approved the formula or passed favorably on an emphasis of this sort on the evidence of the defendant alone, or even the testimony of the defendant himself, as bearing so critically on the single issue verdict of guilt or innocence. The negative manner of the statement was calculated to confuse the jury on the necessity of conviction beyond a reasonable doubt on consideration of the whole evidence before they could find the accused guilty, and must be held for error.
We do not wish it understood that the Court approves all the instructions to which the appellant has directed exceptions. We do not find it necessary to enter into a maze of discussion which may not be helpful on a new trial, and do not find it necessary to decision to consider other exceptions in the record.
For the error indicated the defendant is entitled to a new trial. It is so ordered.
Error. New trial.