Evidence that witness met defendants the day before the witness heard of the safe being broken open is admissible as fixing the time of the occurrence as to which the witness was testifying. Ellsworth, 130—690.

FORMER JEOPARDY.-A conviction for breaking and entering a dwelling with the intent to commit a felony will sustain a plea of former jeopardy on an indictment for burglary based on the same facts. Staton, 133-642.

MAY BE CONVICTED OF LARCENY.-Where the charge is burglariously entering and stealing defendant may be convicted of the larceny and acquitted of the burglary. Grishom, 2 (1 Hay.), 17.

Upon indictment for burglary there may be a conviction for larceny. Grishom, 2 (1 Hay.), 13 (17).

WHETHER ENTRY IN THE NIGHT.-Where defendant admits the breaking with felonious intent, and the evidence is that the breaking was "after daylight down, and that it was "dark, except the light of the moon," the evidence is sufficient to warrant the finding of the jury that the offense was committed in the night time. McKnight, 111-690.

There is no presumption of law arising from any fact that a felonious breaking into a dwelling was committed in the night time rather than the day; and before a defendant can be convicted of burglary this fact must be proved either directly or indirectly. Whit, 49 (4 Jones), 349.

POWER OF THE JURY.-The jury are not vested with the discretionary power as to the degree for which they should convict, but they must find according to the evidence as they believe the facts to be. Alston, 113666.

INDICTMENT. An allegation that the breaking and entering were with intent to steal is supported by proof of an intent to rob, since robbing includes larceny, and on indictment for a robbery, defendant may, if the evidence justifies it, be acquitted of the robbery and convicted of larceny. Cody, 60 (Winst. Law), 197.

An indictment for burglary for breaking into the house of a husband need not charge the house to be the property of the husband and wife jointly on account of the wife's right of dower and homestead, since the wife has no estate in the husband's land during his life. Wincroft, 76-38.

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An allegation that defendant "having so burglariously as aforesaid broken and entered said dwelling-house then and there, on the said S, in the said dwelling-house then and there being, unlawfully, maliciously, secretly and feloniously did make an assault with a deadly weapon and him, the said S, did shoot with intent him, the said S, then and there feloniously, of his malice aforethought to kill and murder," etc., is a good and sufficient count for burglary. Johnson, 119—883.

It is not necessary that the indictment should contain an averment that the offense was committed since the act creating the different degrees, where the proof shows that the offense was subsequent to the act. Following State v. Halford, 104 N. C., 874, and distinguishing State v. Wise, 66 N. Č., 120. Fleming, 107-905.

Where the indictment charges, and the evidence proves, that the burglary was committed "on the 11th day of November, A. D. 1888," it sufficiently appears that the offense was committed before the act was amended (laws 1889, c. 434, ratified March 11, 1889, to enable the court to determine whether the punishment ought to be under the old statute or the statute as amended, and the judgment will not be arrested. Distinguishing State v. Wise, 66 N. C., 120, and State v. Massey, 97 N. C., 465. Halford, 104-874. An averment that the breaking was with intent to commit larceny is supported by proof that the entry was made with a purpose to commit robbery, since to rob implies to steal by force. Ib.

CHARGE.-Where the indictment simply charges the breaking and entering into the house, it is error to instruct the jury "that if they believed the defendants, however they may have got into the house, broke out of it, they were guilty. McPherson, 70-239.

A charge that if the prisoner was found in possession of a stolen watch and chain on Monday after the burglary committed on Saturday night, "the law presumed that he was the thief, and that the prisoner was bound to explain satisfactorily how he came by the stolen goods," is erroneous, since the prisoner might have received the watch and chain after some one else had committed the burglary, which would change the grade of the crime very materially. Graves, 72-482.

HABEAS CORPUS.-Where the indictment charges burglary with intent to commit murder, and defendant consents to a mistrial and then pleads "guilty of larceny," no judgment can be pronounced, since his confession of being guilty of larceny is not a confession of the crime charged against him. Queen, 91-660.

Where judgment is pronounced in such case, sentencing defendant to the penitentiary, he is not entitled to be discharged, but, since the original indictment is still pending against him, he may be taken from the penitentiary by habeas corpus, and held to answer the original charge. Ib.

Sec. 106 (3332). Burglary, breaking out of dwelling-house.

If any person shall enter the dwelling-house of another with intent to commit any felony or other infamous crime therein, or being in such dwelling-house, shall commit any felony or other infamous crime therein, and shall, in either case, break out of the said dwelling-house in the night time, such person shall be guilty of burglary. Code, s. 995; R. C., c. 34, s. 8; 12 Anne, c. 7, s. 3; 7 and 8 Geo. IV., c. 29, s. 11; 24 and 25 Vic., c. 96, s. 51.

Sec. 107 (3333). Breaking into houses otherwise than burglariously.

If any person shall break or enter a dwelling-house of another otherwise than by a burglarious breaking; or shall break and enter a store-house, shop, warehouse, banking-house, counting-house, or other building, where any merchandise, chattel, money valuable security or other personal property shall be; or shall break and enter any uninhabited house, with intent to commit a felony or other infamous crime therein; every such person shall be guilty of a felony, and imprisoned in the state's prison or county jail not less than four months, nor more than ten years.

Code, s. 996; 1874--5, c. 166; 1879, c. 323.

INDICTMENT. An indictment containing but one count, alleging that defendant "unlawfully and wilfully did enter, in the night, a gin-house in which there was cotton, meal and other personal property, with intent to commit the erime of larceny," and that "he was found by night in said house, with intent to commit the crime of larceny," is sufficient, since the crimes created in both sections are of a cognate character, and, though the bill does not set out the crimes in the language of the statutes, sufficient matter appears to enable the court to proceed to judgment. Tytus, 98-705.

The indictment is not defective because it charges an intent to commit more than one offense. Christmas, 101-749.

EVIDENCE. Evidence that defendant entered a dwelling-house in the night time, having no right to be there, and fled on being discovered, is in the absence of any explanation on his part, sufficient to be left to the jury. McBryde, 97-393.

Sec. 108 (3334). Burglary, intent to commit.

If any person shall be found armed with any dangerous or offensive weapon, with the intent to break or enter a dwelling, or other building whatsoever, and to commit a felony or other infamous crime therein; or shall be found having in his possession, without lawful excuse, any pick-lock, key, bit or other implement of house-breaking; or shall be found in any such building, with intent to commit a felony or other infamous crime therein, such person shall be guilty of a felony and punished by fine or imprisonment in the state's prison, or both, in the discretion of the court.

Code, s. 997; 24 and 25 Vic., c. 96, s. 58; 1907, c. 822.

Sec. 109 (3270). Burglary in first degree charged, verdict may be for second.

When the crime charged in the bill of indictment is burglary in the first degree, the jury may render a verdict of guilty of burglary in the second degree if they deem it proper to do so.

1889, c. 434, s. 3.

Sec. 110 (3330). Burglary, how punished.

Any person convicted, according to due course of law, of the crime of burglary in the first degree shall suffer death, and any one so convicted of burglary in the second degree shall suffer imprisonment in the state's prison for life, or for a term of years, in the discretion of the court.

Code, s. 994; 1889, c. 434, s. 2; 1870-1, c. 222.

BURNING WOODS.

Sec. 111 (3346). Notice to be given.

If any person shall set fire to any woods, except it be his own property; or, in that case, without first giving notice in writing to all persons owning lands adjoining to the woodlands intended to be fired, at least two days before the time of firing such woods, and also taking effectual care to extinguish such fire before it shall reach any vacant or patented lands near to or adjoining the lands so fired, he shall, for every such offense forfeit and pay to any person

who shall sue for the same fifty dollars, and be liable to any one injured in an action, and shall moreover be guilty of a misde

meanor.

Code, ss. 52, 53; R. C., c. 16, ss. 1, 2; 1777, c. 123, ss. 1, 2.

Sec. 112 (3347). Woods, from camp fires.

If any wagoner or other person encamping in the open air shall leave his camp without totally extinguishing the camp fires, he shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not exceeding fifty dollars, or imprisoned not exceeding thirty days.

Code, s. 54; 1885, c. 126.

BUTCHERS.

Sec. 113 (3803). Butchers to keep record.

If any butcher shall fail to keep a book or registration and register the ear-mark, brand or flesh-mark of all cattle, sheep, swine or goats, and the name of the parties purchased from in said registration, and the date of said purchase, which registration shall be open to the inspection of all persons, he shall be guilty of a misdemeanor, and upon conviction shall pay a fine of fifty dollars for each offense: Provided, this shall only apply to the counties of Rockingham, Bertie, Edgecombe, Halifax, Martin, Orange, Pitt Wilson, Wayne, Jones, Warren, Johnston, Richmond, Northampton, Franklin, Craven and Chowan; and Warsaw township in D11plin county.

1889, e. 318; 1895, c. 363; 1891, c. 38; 1891, c. 557; 1893, c. 116; 1903, «. 82: 1905, e. 31.

BUYING AND SELLING OFFICES.

Sec. 114 (3571). Buying and selling offices.

If any person shall bargain to sell an office or deputation of an office or any part or parcel thereof, or shall take money, reward, or other profit, directly or indirectly, or shall take any promise, covenant, bond or assurance for money, reward or profit, for an office or the deputation of an office, or any part thereof, which office or any part thereof shall touch or concern the administration or execution of justice, or the receipt, collection, control, or disbursement of the public revenue, or shall concern or touch any clerkship in any court of record wherein justice is administered;

or if any person shall give or pay money, reward or profit, or shall make any promise, agreement, bond or assurance for any of the said offices, or for the deputation of any of them, or for any part of them, the person so offending in any of the cases aforesaid shall be guilty of a misdemeanor, and on conviction thereof shall forfeit all his right, interest and estate in such office, and every part and parcel thereof, and shall be imprisoned and fined at the discretion of the court.

R. C., c. 34, s. 33, 5, 6 Edw. VI., c. 16, ss. 1, 5.

CASTRATION.

Sec. 115 (3627). Castration with malice.

If any person, of malice aforethought, shall unlawfully castrate any other person, or cut off, maim, or disfigure any of the privy members of any person, with intent to murder, maim, disfigure, disable or render impotent such person, the person so offending shall suffer imprisonment in the state's prison for not less than five nor more than sixty years.

Code, s. 999; R. C., c. 34, s. 4; 1831, c. 40, s. 1; 1868-9, c. 167, s. 6.

Sec. 116 (3626). Castration or maiming without malice aforethought.

If any person shall, on purpose and unlawfully, but without malice aforethought, cut or slit the nose, bite or cut off a nose, lip or ear, or disable any limb or member of any other person, or castrate any other person, or cut off, maim, or disfigure any of the privy members of any other person, with intent to kill, maim, disfigure, disable or render impotent such person, the person so offending shall be imprisoned in the county jail or state's prison not less than six months nor more than ten years, and fined, in the discretion of the court.

Code, s. 1000; R. C., c.34, s. 47; 1754, c. 56; 1791, c. 339, ss. 2, 3; 1831, e. 40, s. 2.

CATTLE KILLED IN WOODS.

Sec. 117 (3315). Killing cattle and failing to show hide and ears.

If any person shall kill any neat cattle, sheep or hog in the woods or range, and shall for two days fail to show the hide and ears to the nearest justice or two freeholders, he shall be guilty of a misdemeanor.

Code, s. 2318: R. C., c. 17, s. 2; 1901, c. 546.