See also LICENSE TAX.

DRUMMERS.

ACT VOID AS TO NON-RESIDENT DRUMMERS.-Laws 1887, c. 135, section 25, making it indictable for a drummer to sell goods in this state without a license, is unconstitutional and void, as far as it applies to non-resident drummers. Bracco, 103-349.

WHO IS A DRUMMER.-A drummer, within the meaning of laws 1885, c. 175, section 28, is one who, for himself or as agent for a resident or non-resident or non-resident merchant, travels and sells or offers to sell, with or without sample, goods, wares or merchandise which are afterwards to be sent to the purchaser. Miller, 93-511.

VARIANCE. Where the indictment charges the sale to have been to two as partners, and the proof shows a sale to one only, the variance is fatal. Miller, 93-511.

MUST BE IN ACTUAL POSSESSION OF LICENSE.—A drummer in order to protect himself from the penalty must be in the actual possession of his license at the time he makes the sale. Smith, 93-516.

TAX NOT UNCONSTITUTIONAL.-The drummer's license tax imposed by laws N. C., 1885, c. 175, section 28, is not in conflict with the constitution of the United States. Long, 95-582.

The rebate allowed merchants paying a purchase tax by section 25 of the said act does not discriminate against non-residents, since all persons, irrespective of residence, engaged in the business therein designated are entitled to its benefits. Long, 95-582.

DRUNKENNESS.

While drunkenness is no excuse for crime, yet when it is carried so far as to produce delirium tremens, any act perpetrated under the delirium is excused, since the law looks only to the state of the mind, and not to the cause producing it. Sewell, 48-245.

Voluntary drunkenness will not excuse crime committed by a man otherwise sane. Wilson, 104-868. Keath, 83-626. Potts, 100-457. John, 8 Ire., 330.

Delirium tremens is recognized as a species of insanity; but "dispsomania" and "moral insanity" are not recognized as defenses. Potts, 100-457.

Delirium tremens being but a temporary madness, generally of short duration, he who sets it up as a defense must show that at the time the act was done he was in a paroxysm of that disorder. There is no presumption of its existence from antecedent fits which had been cured. Sewell, 48 (3 Jones), 245.

Voluntary drunkenness is never an excuse for crime. Peterson, 129-556.

DUELING.

Sec. 243 (3628). Dueling; sending, accepting, bearing challenge.

If any person shall send, accept or bear a challenge to fight a duel, though no death ensue, he, and all such as counsel, aid and abet him, shall be guilty of a misdemeanor, and, moreover, be

ineligible to any office of trust, honor or profit in the state, any pardon or reprieve notwithstanding.

Code, s. 1012; R. C., c. 34, s. 48; 1802, c. 608, s. 1.

Sec. 244 (3629). Duel, death in; murder.

If any person fight a duel in consequence of a challenge sent or received, and either of the parties shall be killed, then the survivor, on conviction thereof, shall suffer death; and all their aiders or abettors shall be considered accessories before the fact.

Code, s. 1013; R. C, c. 34, s. 3; 1802, c. 608, s. 2.

INDICTMENT-COPY OF CHALLENGE.-An indictment for sending a challenge need not set out a copy of the challenge. Farrier, 8 (1 Hawks), 487.

A person indicted for dueling may be convicted of an assault. Fritz, 133-725.

CHALLENGE TO FIGHT OUTSIDE THE STATE.-A challenge to fight a duel out of the state is indictable, since its tendency is to rouse the passions and produce an immediate breach of the peace. Farrier, 8 (1 Hawks), 487.

A duel is a combat between two persons by agreement and with deadly weapons. Fritz, 133-727.

Or at least the combat must be upon such mutual agreement as permits one combatant to take the life of the other. Fritz, 133-727.

A challenge to fight a fair fight without the use of a deadly weapon is not dueling. Fritz, 133-725.

DYNAMITE AND OTHER EXPLOSIVES.

Sec. 245 (3817). Dynamite; selling, without a license.

If any dealer or other person shall sell, or keep for sale any dynamite cartridges, bombs, or other combustibles of a like kind, without first having obtained from the board of commissioners of the county where such person or dealer resides a license for that pur pose, he shall be guilty of a misdemeanor.

1887, c. 364, ss. 1, 4.

Sec. 246 (3794). Dynamite cartridges, exploding.

If any person shall fire off, explode, or cause to be fired off or exploded, except for mechanical purposes in a legitimate business, any dynamite cartridge, bomb, or other explosive of a like nature, he shall be guilty of a misdemeanor.

1887, c. 364, s. 3.

Sec. 247 (2466). Use of dynamite for killing fish.

If any person shall use any dynamite or any other explosive agent whatever for killing fish, or shall explode any dynamite or other explosive agent in the public waters of the state where fish are

found, except for mechanical or manufacturing purposes, he shall be guilty of a misdemeanor and fined not more than fifty dollars or imprisoned not more than thirty days. The possession of fish killed by explosive agencies shall be prima facie evidence that explosives were used for the purpose of killing fish.

Code, s. 3405; 1889, c. 312.

EATING-HOUSE.

The lessee of a stall in a market-house who furnishes meats to the pubplie does not keep an "eating-house" within the meaning of the revenue act requiring such persons to pay a license-tax. Hall, 73-252.

EAVESDROPPING.

An eavesdropper is one who listens under walls, windows or eaves of houses to hearken after discourse and thereupon proclaim slanderous and mischievous tales. Davis, 139-547.

An indictment for eavesdropping was defective which failed to charge that the conduct described was habitual, or facts from which such habit could be inferred, and also failed to allege that anything so heard was repeated in the hearing of divers persons. Davis, 139–547.

ELECTION.

Where there are two counts and evidence of two corresponding offenses proved, the court will not order the solicitor to select one of the offenses and abandon the other. March, 46 (1 Jones), 526.

Separate indictments, and at different terms, may be treated as different counts in the same bill, if germane. Robbins, 123-730.

Where different felonies of the same nature are embraced in different counts in the same bill, the judge, in his discretion, may either quash the bill or compel the solicitor to elect. McNeill, 93-552.

Where there are several counts, each covering separate transactions punishable in the same way, or only one count, but testimony as to two or more transactions falling under the charge, the judge may, in his discretion, refuse or allow a motion to force the prosecutor to elect, and may determine the time when the election is to be made, if at all. Parish, 104-679.

In the exercise of this discretionary power the courts have generally held that the prosecutor, especially on the trial of felonies or offenses punishable with infamous punishment, should be compelled to elect at the close of the testimony for the state, except in cases where the evidence of each one of the transactions is so mixed with and dependent on the testimony as to the others, with their attendant circumstances, that the court does not deem it practicable to confine the prosecutor to one transaction without destroying what seems to be a prima facie case of guilt against the defendant. Parish, 104-679.

It has never been deemed so important to enforce an election on the part of the prosecuting officer on the trial of misdemeanors punishable at the discretion of the court. Parish, 104-679.

Where there are several counts in an indictment drawn merely to meet the different phases of facts that will probably be proven, the judge will neither quash nor require an election. Parish, 104-679.

It is in the discretion of the court to quash an indictment or compel the prosecutor to elect on which count. he will proceed when the counts charge offenses actually distinct and separate. This discretion is generally exercised lest the defendant should be confounded in his defense, or be prejudiced in his challenges to the jury, for he might object to a juryman trying one of the offenses, when he would have no objection to his trying the other. Haney, 19 (2 D. & B.), 390.

Where an indictment for the larceny of some wheat contains two counts, one for the larceny and the other for receiving the same wheat, knowing it to have been stolen, an exception to the refusal of the court to require an election can not be sustained. Morrison, 85-561.

An indictment which contains several counts charging different felonies of the same grade and subject to the same punishment, may be quashed on motion made in apt time, or the solicitor may be required to elect on which count he will proceed. But in such case it is not error to refuse a motion to arrest the judgment after conviction; so where an indictment for larceny contained two counts, one charging the larceny of an ox and the other the larceny of one pound of beef, and there was a general verdict of guilty, a motion in arrest of judgment was properly overruled. Reel, 80-442.

A motion to quash on the ground that a bill for the same offense had been found at a former term, and having become mutilated, a second bill had been prepared and conveyed to the door of the grand jury room and handed to the foreman by an attorney employed to aid in the prosecution, and returned a true bill, and that, upon objection for this irregularity, a third bill was sent upon which the solicitor now proposed to try, is properly denied. The solicitor is not restricted to the first bill found, but may send another and require the accused to answer that at the election of the state. Hastings, 86-596.

The solicitor may send another bill at any time before entering on the trial. Dixon, 78-558.

Where there are two indictments relating to the same transaction, they may be treated as one bill with two counts, and may be joined wherever a joinder of counts would be authorized. If the counts are inconsistent, it is ground for motion to quash, or the state may be required to elect upon which the trial shall be had. Watts, 82-656. Johnson, 50 (5 Jones), 221.

Distinct felonies of the same nature may be charged in different counts, or two indictments for the same offense may be treated as one containing different counts, subject to the right of the defendant to move to quash in case of inconsistent counts and the power of the court to require an election as to which count or indictment the state will insist. McNeill, 93-552.

While the rule is that where the state charges one offense and proves other offenses of the same kind, the defendant may require an election at the close of the state's evidence as to which it will reply upon, yet where the same offense is proved at different intervals by different witnesses he is not entitled to demand an election. Boggan, 120-590.

It is competent for the state to prove any number of offenses of the kind charged in the indictment, in which case the defendant's remedy is, at the close of the evidence, to ask the court to require the solicitor to elect on which offense he relies, and where no such request is made and refused, the conviction will not be disturbed. Williams, 117-753.

If an indictment contain charges distinct in themselves and growing out of separate transactions the prosecutor may be required to elect, or the court may quash. Morrison, 85-562.

ELECTIONS.

Sec. 248 (3385). Breaking up; disturbing officers.

If any person by force and violence shall break up or stay any election, by assaulting the officers thereof, or depriving them of the ballot-boxes, or by any other means, he and his aiders and abettors shall be guilty of a misdemeanor and imprisoned not more than three months, and shall pay such fine as the court shall adjudge, not exceeding one hundred dollars. If any person shall interrupt or disturb the registrar while actually engaged in the registration of voters, or the registrar or judges of election while engaged in holding the election, or in counting and adding up the result thereof; or the board of county canvassers, or the state board of canvassers, while engaged in the discharge of their official duties, or behave in a disorderly or boisterous manner in the presence of said officers while so engaged in the discharge of their official duties, or obstruct such officers in the legal discharge of the duties of their several positions, he shall be guilty of a misdemeanor, and upon conviction shall be fined not more than fifty dollars or imprisoned not more than thirty days.

1901, c. 89, s. 51.

Sec. 249 (3386). Bribery of voters.

If any person shall at any time before or after an election, give or promise to give any money, property, or reward to any elector in order to secure his vote, he shall be guilty of a misdemeanor; and any person who shall receive or agree to receive any such bribe shall also be guilty of a misdemeanor.

1901, c. 89, s. 54.

Sec. 250 (3387). Discharging employee on account of vote.

If any person shall discharge from employment, or otherwise injure, threaten, oppress or attempt to intimidate any qualified voter of this state because of the vote such voter may or may not have cast in any election, he shall be guilty of a misdemeanor.

1901, c. 89, s. 53.

A person who is expelled from the church because he voted the ticket of a certain political party is not injured, oppressed or intimidated within the meaning of the statute making it indictable to injure, oppress or intimidate a voter because of his vote. Rogers, 128-576.

REFUSING TO ALLOW A VOTER TO REGISTER.-A registrar of an election who refuses to allow a voter to register, on the ground that the town charter under which such registrar is acting requires the payment of all taxes due the city as a qualification for voters, and that such voter has not paid his