viction for such second offense, the prior conviction of the same person and sentence thereon may be shown to the court.

Code, s. 1056; R. C., c. 34, s. 25.

INDICTMENT FOR MANSLAUGHTER.-An indictment for manslaughter in the following words is sufficient: "The jurors for the state on their oaths present that A. B., in the county of E., did feloniously kill and slay C. D." Such form contains "every averment necessary to be proved" as required by section 247. Arnold, 107-861.

The act of 1887 (The North Carolina Criminal Code and Digest, section -), prescribing the form of indictment for murder and manslaughter, is not in conflict with any provision of the constitution of this state. Moore, 104-743.

WHAT CONSTITUTES MANSLAUGHTER. Deceased took hold of a bridle-rein of a horse on which the prisoner was mounted, and held it forcibly for from ten to forty-five minutes, in spite of the efforts of the prisoner to loosen the rein, and the prisoner, at the end of that time, struck the deceased with a gallon jug of molasses, which he casually had in his hands, several violent blows, the first of which knocked the deceased down, and death ensued from these blows: Held to be manslaughter, and not murder. Ramsey, 50 (5 Jones), 195.

The prisoner looking through a crack in his own house, saw deceased with his arms around the neck of the prisoner's wife, and thereupon entered the house when deceased came at him with a knife and the prisoner killed him: Held, that prisoner was guilty only of manslaughter. Harman, 78-515.

While defendant and others were engaged in friendly conversation the deceased, a powerful man, came up on horseback in a gallop, halloing twice and applying an insulting epithet to his horse, which defendant misinterpreted as applicable to himself; a demand for explanation by the defendant was followed by an insult from the deceased, who advanced with threatening aspect and words upon the defendant, who retreated until overtaken and knocked or pushed down by deceased, and while upon the ground, and during the struggle, inflicted nine cuts or stabs with a pocket knife, from which deceased died: Held, that the repeated cutting of deceased, resulting in death, was not murder, since there was no evidence of express malice or of a previous preparation for the fight by the defendant, or that he used the knife after deceased had been taken off his postrate body, but such killing, being the result of passion produced by the fight, was manslaughter at the most. Miller, 112-878.

Intentional killing is manslaughter, where the act is committed under and by reason of a passion caused by provocation which the law deems adequate to excite uncontrollable passion in the mind of a reasonable man. White, 138-705.

The following charge as to manslaughter is correct: "If you should find from the evidence that the prisoner willingly engaged in the fight with the deceased, and that the deceased threw his hand to his hip pocket and advanced upon the prisoner in a threatening manner, and that the prisoner, being willing to fight, seized a pistol and shot the deceased, and the deceased died from the wound, the prisoner would be guilty of manslaughter, provided that you should find from the evidence that the appearance and manner of the deceased were such as to cause the prisoner to believe that the deceased was armed with a deadly weapon, and that the prisoner did believe he was thus armed and was about to harm him with it." Exum, 138-602.

A charge that the defendant would at least be guilty of manslaughter upon his own evidence, if believed, is erroneous where an inference of self-defense may be drawn from the defendant's evidence, taking it in its most favorable aspect. Hough, 138-663.

Deceased was an orphan only eight years of age, and had been living with defendants about six months; when one witness came in and asked how the child was the female defendant simply answered that she was on the bed, but she was then dead; the child had a scar on its breast which looked like a stab and had scratches on the face; the child, when exhumed about a week after it had been buried, was found to be terribly scarred over the whole body, and was almost a skeleton, and had the appearance of having been cruelly whipped: Held, that the evidence was sufficient to go to the jury on the question of manslaughter. Goode, 132–982.

Where contradictory or erroneous charges are given as to manslaughter, but there is no evidence tending to reduce the crime to manslaughter, the error is harmless. Utley, 132–1022.

Where a verdict of murder is not asked, and there is no evidence of selfdefense, and the killing is admitted or proved, an instruction that if the jury believed the evidence they should return a verdict of manslaughter, is proper. Hagan, 131-802.

An instruction that there is no evidence of manslaughter is proper where there had been no fight, no assault by the deceased, no legal provocation, and even if the language used by the deceased could be perverted into legal provocation, then the cruel and excessive violence by the prisoner was out of all proportion to the provocation. Spivey, 132–990.

The superintendent of a convict gang, not known to be an officer, has no right to shoot or kill one who, having committed larceny and having escaped from prison, is running away to avoid arrest. Stancil, 128–606.

The fact that deceased took a rock from his pocket, without attempting to throw it and without the prisoner seeing it, will not reduce the killing to manslaughter. McCourry, 128-594.

Where the prisoner, who had been violently abused and beaten, made his escape, ran to his house about eighty yards, and got a knife, and ran back, and upon meeting deceased, stabbed him, he is guilty only of manslaughter. Norris, 2 (1 Hay.), 430.

Neither the rejection of competent evidence nor the withdrawal of the question of manslaughter from the jury is reversible error, where the entire testimony, including that rejected, and accepting the statements of the prisoners to be true, in no aspect of the case justified a verdict of a lesser crime than murder in the second degree, of which the prisoners were convicted. White, 138-704.

It is not error to refuse to submit to the jury a hypothetical view of manslaughter where there is no element of manslaughter in the case. Hicks, 125— 636.

Where one strikes another a violent blow, with a heavy pole pointed with iron, and a fight ensues in which the assailed uses a deadly weapon with which he knocks down his adversary and disables him, yet follows up his blows with great violence and cruelty and kills him, this is but manslaughter on account of the greatness of the provocation in the first instance, and the passion naturally produced by the conflict. Curry, 46 (1 Jones), 280.

A person who was violently abused and beaten, made his escape, ran to his own house, eighty yards off, got a knife, ran back, and upon meeting with deceased, stabbed him: Held, that he was guilty of manslaughter only. Norris, 2 (1 Hay.), 495.

The wife of the deceased threw water on the prisoner, who was standing just out of the door, and prisoner struck deceased's wife a violent blow, knocking her down and causing her to faint. Deceased, a powerful and violent man, and known to be such by the prisoner, then advanced on the prisoner, who retreated about twenty paces, and just as deceased was trying to catch the muzzle of prisoner's gun, the prisoner shot and killed him: Held, that prisoner was guilty of manslaughter only. Roberts, 8 (1 Hawks), 349.

If, upon the whole testimony, it is manifest that the presumption of malice has been rebutted, and in no aspect of the testimony, if believed as a whole, can the prisoner be guilty of murder in the second degree, the court should so instruct the jury and direct them not to convict of a higher offense than manslaughter. Wilcox, 118-1131.

The evidence, in a trial for homicide occurring before 1893, showed that the defendant had made threats against the life of the deceased, but that thereafter on the day of the killing their relations were friendly and that the immediate provocation to the homicide was the shooting of defendant's brother by the deceased: Held, that the the jury should have been instructed that if they found these facts, defendant could be convicted of manslaughter only, inasmuch as, after the reconciliation, the law would presume the crime to be due to the new and sudden provocation and not to the previous malice. Horn, 116-1037.

As manslaughter may be committed in various ways, and without the use of a deadly weapon, a defendant convicted of manslaughter can not complain of the failure of the court to instruct the jury whether a stick used was a deadly weapon. Ussery, 118-1177.

SPORT.-Where one engaged in an unlawful and dangerous sport kills another by accident it is manslaughter. Vines, 93-493. Shirley, 64-610. Roan, 13 (2 Dev.), 58.

FIGHTING ON EQUAL TERMS AND SUDDEN QUARREL.-If two men fight upon a sudden quarrel, and one kills the other, the chances being equal, this constitutes manslaughter. Massage, 65-480.

DEFENDANT NEED NOT SHOW MITIGATION, WHEN.-Where the killing is established, it is incumbent on the prisoner to show circumstances of mitigation or excuse to the satisfaction of the jury, unless the same arise out of the evidence for the prosecution. Brittain, 89–481.

And if such proof puts the offense of murder out of the way, the law in this state is that it is still incumbent on the prisoner to show, in like manner, the circumstances of justification; and if he fails to do this the offense is manslaughter. Ib.

If two men fight upon sudden quarrel and equal terms, the one upon provocation and the other upon a predetermined intention to kill, the fact that the latter would be guilty of murder if he slew his adversary can not excuse the former if he should be the slayer. Ib.

KILLING BY ACCIDENT THOUGH IN UNLAWFUL SPORT.-Where one engaged in an unlawful and dangerous sport kills another by accident, it is manslaughter; but if the sport is lawful, and not dangerous, it is homicide by misadventure, and the test of responsibility depends upon whether the conduct of the accused was unlawful, or not being so, was so grossly careless or violent as necessarily to imply moral turpitude. Vines, 93-493.

OPINION OF WITNESSES.-The opinion of an eye-witness as to whether the fatal blow was accidental or not is incompetent; that is a fact for the jury to determine upon the consideration of all the circumstances connected with the case. Vines, 93-493.

Where two persons conspire to kill or inflict grave bodily harm on a third person, and in carrying out the purpose one of them fires a pistol at the third person, who immediately pursues and kills the one who did not fire the pistol, it is manslaughter. Gaskins, 93-547.

NO DIFFERENCE WHICH MAKES FIRST ASSAULT.-If two engage in a fight mutually and suddenly, and one kills with a deadly weapon, it is but manslaughter, and ordinarily, it is not material which makes the first assault. Floyd, 51 (6 Jones), 392.

BAIL GIVEN WHEN SENTENCE SUSPENDED.-A person convicted of manslaughter may be bailed when execution of the sentence is suspended. Smith,

NO SPECIAL VENIRE.-Where only a verdict for manslaughter is asked no special venire is necessary, and defendant is entitled to only four challenges. Hunt, 128-584.

ONLY FOUR CHALLENGES.-Where the solicitor states that he will not insist on a higher verdict than second degree or manslaughter only four peremptory challenges are allowed. Caldwell, 129–682.

6. EXCUSABLE HOMICIDE.

To render the act of killing excusable on the ground of self-defense, the prisoner should have reasonable ground to apprehend, and should actually apprehend, that his life is in danger, or that deceased is about to do him some great bodily harm; but it is for the jury, and not for the prisoner, to judge of the reasonableness of such apprehension. Rogers, 93—523.

Though a person may enter into a fight willingly, yet, if in its progress, he be sorely pressed, that is, put to the wall, so that he must be killed or suffer great bodily harm unless he kill his adversary, and under such circumstances he does kill, it is but excusable homicide. Ingold, 49 (4 Jones), 216.

Whenever there is a reasonable ground to believe that there is a design to destroy life, to rob or commit a felony, a killing to arrest such design is justifiable. Harris, 46 (1 Jones), 190.

Deceased, without any provocation, assaulted the prisoner with a deadly weapon, driving prisoner sixty or eighty steps and then knocking him down. While prostrate on the ground, and while being beaten by deceased with a club, the prisoner shot and killed deceased with a pistol: Held, that the killing under such circumstances was not murder in any degree, nor would the killing have been murder if the prisoner had stood his ground in the beginning of the assault upon him and then shot deceased, and it was error in the court not to so instruct the jury. Wilcox, 118-1131.

Where it appeared that, by the explosion of dynamite under a house, two persons sleeping there were killed; that defendant was overseer of a public road and kept dynamite in his possession for use in making the road; that dynamite was also kept and used by other persons in the neighborhood; that the defendant had been employed by the deceased M, who had dismissed him, and that they had quarreled about it; that defendant had been unfriendly with the deceased B, of whose attentions to a widow, to whom defendant had been engaged, he was jealous; that he had said if the deceased and the widow should marry they should never live together in this country; that he and B had "made up," but defendant had said it was only "from the teeth out; that there were some tracks made by an 8 or 9 shoe on the hillside a few hundred yards from the place of the homicide which was the size of shoe defendant wore; that the day after the homicide the defendant looked pale and nervous: Held, that, as the evidence did not exclude every reasonable supposition that it could have been done by some one other than the prisoner, it did not justify the jury in finding a verdict of guilty. Clark and Montgomery, dissenting. Gragg, 122-1082.

PREVENTION OF FELONY.-A well-grounded belief that a known felony is about to be committed, will extenuate a homicide committed in prevention of the felony, but not a homicide committed in pursuit by an individual of his own accord. Rutherford, 8 (1 Hawks), 457.

7. CHARGE.

On a trial for murder, the confessions of the prisoner having been offered in evidence, their reception was objected to as having been induced by fear or hope, but was allowed. Thereupon the prisoner asked the court to instruct the jury that, "whether confessions are admissible at all as evidence is, as in the case of other evidence, solely a question for the judge, but how far

they are to be believed, or whether entitled to credence at all, is a question for the jury." His honor gave the instruction, but added: "But the confessions of the prisoner come before the jury untainted with fear or hope, and are entitled to all the weight to which such evidence is entitled, and the fear or hope which vitiates confessions must be such as to produce an impression that punishment or suffering may be lightened or avoided by confession": Held, that such addition was not objectionable. Rodman and Dick, JJ., dissenting. Davis, 63-578.

It is error for the court, when properly requested, to fail to discriminate between a homicide where the prisoner enters into the fight with a deadly weapon prepared beforehand, and one, where being hotly pressed, uses such a weapon on the impulse of the moment, since to ignore such distinction in a proper case is to confound murder and manslaughter. Barnwell, 80-466.

Where the only evidence relied on by the state to connect the prisoner with the offense is his own confessions and those confessions tend to disclose a case of mutual combat upon sudden provocation between the prisoner and deceased, it is error to exclude that view of the case from the jury, however much it may conflict with opposite theories arising from other portions of the evidence. Jones, 79–630.

The evidence was that the prisoner had escaped from the jail the day previous to the homicide, where he had been confined on a charge of larceny; that the deceased, an acting constable and deputy sheriff, went at night with a posse to arrest him and sat down in the edge of a path near prisoner's house; that the prisoner came along the path and was commanded by defendant to "halt and give an account of yourself," when he fired and killed deceased; that it was a dark night, but the prisoner could have seen the sheriff's posse: Held, that it was error to refuse to charge "that if deceased did not make himself known to prisoner, and prisoner did not know he was an officer, for the defense was manslaughter." Alford, 80-445.

The state offered in evidence the declarations of the prisoner "that he had killed him (the deceased) in self-defense, that he had got a gun at one F's and shot him at C's," and that "he had shot him through and through, and cut his way out; that G (the deceased) and his crowd had waylaid him on the road near Y's, and he had cut his way out": Held, that it was error to charge "that there was no evidence that the deceased and others were banded together at C's for the purpose of taking the life of the prisoner." McKinsey, 80-458.

Where the evidence shows that the prisoner could have escaped the threatened violence of the deceased, but slew him in the difficulty which ensued, an instruction that "if the prisoner was so situated that he could escape, but preferred to shoot rather than escape, he would at least be guilty of manslaughter," is proper. Kennedy, 91-572.

There was some evidence tending to show that deceased, who interfered to prevent the prisoner from killing another, was killed accidentally, and the court instructed the jury that, "if one is about to do an unlawful act, and a third party interferes to prevent it and is killed, it is murder": Held, that this instruction was erroneous, since if the killing was accidental it was not murder. Shirley, 64-610.

It is error for the court, on disagreement of the jury, to charge the jury a second time in the absence of the prisoner. Blackwelder, 61 (Phil. Law), 38. A witness testified that while a fight was going on between two other persons near, deceased passed by witness, and immediately the prisoner passed witness going toward the deceased; that in a short time he saw prisoner leaving deceased, and saw blood running from deceased, and that the prisoner ran; that the deceased had nothing to do with the fight going on between the other two persons; that the prisoner approached deceased coolly and slowly, but the witness did not see prisoner after he passed until he saw him running off: Held, that it was error to charge the jury that, if they believed the witness, the fact of the slaying was proved. Locke, 77–481.