(After stating the case.) Several exceptions *460are taken to the charge of the court, but only one of them, to which the foregoing confessions apply, will be considered.
The ninth instruction given to the jury is in these words : “ There is no evidence in this cause that the deceased, George Goode, Elijah Knight and Joseph Nelson were banded together at Mrs. Crutchfield’s for the purpose of taking the life of the prisoner at the bar.” This instruction, we understand to refer to the prisoner’s account of the transaction as given to the witness, Clark, and to exclude it from the consideration of the jury in determining the facts of the homicide, for the reason that a conspiracy alleged to exist on the road near George Young’s is no evidence of any conspiracy at Mrs. Crutchfield’s house, where the deceased received his mortal wounds. A strict and literal interpretation of the prisoner’s words would seem to warrant and sustain the charge. But in fairness to the prisoner, we do not think his language ought to be thus restricted. It is manifest he refers to the time and place where the fatal shot was fired, and professes to describe the transaction itself, and to give his reasons for taking the life of the deceased. The confessions are drawn from the witness for this purpose only. Moreover, the prisoner said to the other witness that he did the act in self-defence. However slight the evidence may be, when confronting the concurring testimony of the witnesses who were present and saw what was done, the judge had no right- to withdraw it from the jury and to tell them there was no evidence of the conspiracy and waylaying as stated by the prisoner. It was the exclusive province of the jury to consider and give such weight to the prisoner’s self-excusatory account of the transaction as in their judgment it was entitled to in making up their verdict; for his declaration is some evidence of the truth of the fact declared.
“ When there is a defect or entire absence of evidence,” says PeaesoN, J., in State v. Allen, 3 Jones, 257, which was *461a case of murder, “ it is bis duty so to instruct the jury but if there be any competent evidence relevant and tending to prove the matter in issue, “ it is the true office and province of the jury ” to pass upon it; although the evidence may be so slight that any one will exclaim, “ certainly no. jury will find the fact upon such insufficient evidence I” See also the cases Wells v. Clements, 3 Jones, 168, and Wittkowsky v. Wasson, 71 N. C., 451.
For the reasons given the prisoner is entitled to have his ease passed on by another jury. There is error and a venire de novo is awarded.
Per Curiam. Venire de novo.