The following excerpt taken from the charge forms the basis of one of the defendant’s exceptive assignments of error :

“As I told you, gentlemen of the jury, it is your duty to convict this man either of rape or of assault with intent to commit rape, as you find the facts to be from the evidence and under the charge of the court, unless you find from the evidence that he did not have sufficient mental capacity to know the difference between right and wrong at the time of the alleged assault. If you find at that time he did not know the difference between right and wrong, you would return a verdict of 'not guilty.’ ”

The jury had been recalled for further instructions and this was the court’s final charge. It is peremptory in character. It seems that the exception is well taken. S. v. Lawson, 209 N. C., 59, 182 S. E., 692; S. v. Singleton, 183 N. C., 738, 110 S. E., 846.

*684 It is true, tbe defendant offered evidence of bis insanity, but be did not admit tbe truth of tbe State’s evidence. His plea of “not guilty” put at issue tbe question of identity as well as that of tbe commission of tbe crime.

It is beld for law witb us tbat tbe trial court may not direct a verdict for tbe prosecution in a criminal action, where there is no admission or presumption calling for explanation or reply on tbe part of tbe defendant. S. v. Ellis, 210 N. C., 166, 185 S. E., 663; S. v. Hill, 141 N. C., 169, 53 S. E., 311; S. v. Riley, 113 N. C., 648, 18 S. E., 168.

Eor error in tbe charge, as indicated, a new trial must be awarded. It is so ordered.

New trial.