Where the jury returns a verdict finding the prisoner at the bar guilty, and the clerk records the verdict as against the prisoner at the bar, the record sufficiently shows the presence of the prisoner in court when the verdict was rendered. Collins, 30 (8 Ired.), 407.

Where the record shows that the prisoner was brought to the bar in custody of the sheriff, and then, after setting out the drawing of the jury, and their verdict, contains an entry that "the prisoner is remanded," the presence of the prisoner during the whole trial appears with judicial certainty. Langford, 44 (Busb.), 436.

RES GESTAE.-No declarations of a prisoner, made after the commission of the homicide, as to the manner of the transaction, that are not part of the res gesta, are admissible for him. Brandon, 53 (8 Jones), 463.

EVIDENCE-BUrden of ShowiNG MATTERS IN MITIGATION.—The killing with a deadly weapon being admitted or proved, the burden of showing any matter in mitigation, excuse or justification is thrown on the prisoner, and it is incumbent on him to establish such matter, not beyond a reasonable doubt, nor by a preponderance of the testimony, but to the satisfaction of the jury. Willis, 63-26.

Facts offered by the accused in mitigation or excuse need not be proved beyond a reasonable doubt, but only to the satisfaction of the jury. Byrd, 121— 684.

Where the willful killing has been admitted or proved beyond a reasonable doubt, the burden rests upon the prisoner of showing such facts as he relies upon in mitigation or excuse, and for such purpose he has the equal benefit of all the evidence in the case whether introduced by himself or by the state; but, though such mitigating facts be shown as will reduce the crime to manslaughter, the burden is still on him to show such further facts as will excuse the homicide before he can be entitled to an acquittal. Byrd, 121-684.

VERDICT-DISCREPANCY BETWEEN RECORD AND CASE.-Where there is a discrepancy between the record and statement of case on appeal the record will govern, and therefore where the statement of case says there was a verdict of murder in the first degree, and the record simply says there was a verdict of guilty of felony and murder in manner and form as charged in the indictment, a new trial will be awarded. Truesdale, 125-696.

VARIANCE. Where the indictment charges the killing to have been done with a piece of plank, and the proof is that it was done with a piece of iron, the variance is not fatal. Weddington, 103—364.

Where the indictment charges that the mortal wound was inflicted with a rock, and the proof is that the instrument used was a stick, there is no variance. Gould, 90—658.

Though it is necessary to allege the day of the stroke as well as that of the death, in order to show that the death occurred within a year and a day after the stroke, yet where the indictment alleges that the blow was given on a certain day, and that deceased then and there instantly died, and the evidence is that he lived for twenty days after receiving the blow, there is no variance. Baker, 46 (1 Jones), 267.

Where the indictment charged the killing to have taken place on December 5, 1896, and the evidence showed that, while the deceased was wounded on that day, he died three days thereafter and before the bill was found, the variance was not fatal. Pate, 121-659.

ARREST OF JUDGMENT.-The prisoner was indicted at one term and tried and convicted at a succeeding term, both being held by the same judge. He moved for a new trial and in arrest of judgment, which being refused and judgment pronounced, he appealed to the supreme court, where the judgment was affirmed. When brought before the superior court for re-sentence, he again moved in arrest of judgment on the ground that the judge who presided

at the trial also presided at the preceding term, when the bill was found, in violation of Const. N. C., art 4, sec. 11: Held, (1) that the judgment of the superior court was conclusive of all ground which was or might have been insisted on to arrest judgment. (2) That if the prisoner was entitled to relief at all on such grounds, his proper remedy was not by motion in arrest of the judgment, but by a proper application for a discharge. (3) The constitutional prohibition does not apply to the several terms of the court in any one county embraced in a "circuit," but only to the series of courts held in the various counties constituting such circuit as a whole. (4) The judge was at least în officer de facto, and, so far as third parties are concerned, his acts were as binding as if he were an officer de jure. Speaks, 95-689.

It is no cause for arrest of judgment that the record states that the prisoner, upon arraignment "for his trial puts himself on his country," instead of saying that he would "be tried by God and the country." Reeves, 30 (8 Ired.), 19.

It is no ground for the arrest of judgment because, on the removal of a case, two transcripts are sent, although the first is defective, and the clerk sends the second without a certiorari, since the clerk can do so of his own motion. Anderson, 92-732.

JURY MUST FIX DEGREE.-A verdict of guilty of murder as charged in the indictment is insufficient, since the indictment is the same for both degrees of murder, and the statute provides that the jury shall deermine in their verdict the degree of the crime.-Jefferson, 125-717.

ARREST OF JUDGMENT.-Nor can judgment be arrested because the bill does not charge that deceased "was in the peace of God" as well as in the peace of the state. Gee, 92-756.

An allegation that deceased "then and there instantly died," is a sufficient averment that he died within a year and a day. Howard, 92-772.

The fact that the record used the past tense instead of the present is no cause for arrest of judgment. Reeves, 30 (8 Ired.), 19.

CHALLENGE.-The usual question asked a juror on his voir dire, "have you formed and expressed the opinion that the prisoner at the bar is guilty," refers to every grade of unlawful homicide, and it is not error to refuse to allow the juror to be asked whether he had formed and expressed the opinion that the prisoner is "guilty of either murder or manslaughter." Matthews, 80-417.

DEADLY WEAPON.-Whether the weapon used is a deadly weapon, is a question entirely for the court. Collins, 30 (8 Ired.), 407.

The question as to whether an instrument is a deadly weapon is, generally speaking, one for the court. West, 51 (6 Jones), 505.

HEREDITARY INSANITY.-Where hereditary insanity is offered as an excus? for crime, it must appear that the kind of insanity proposed to be proven as existing in the prisoner is no temporary malady, but that it is notorious, and of the same species with which other members of the family have been afflicted. Christmas, 51 (6 Jones), 471.

ACCOMPLICE.-Where one person employs another to commit a robbery, and the one employed kills the person robbed to conceal the offense, the one who employs him is guilty of murder as accessory before the fact. Davis, 87-514.

PREPARED WEAPON USED ON PROVOCATION.-Though legal provocation be given defendant, yet if it be shown that he previously procured a weapon for the express purpose of using it, if he should get into a fight with deceased at a particular time or place, or on a certain contingency, and at the appointed time or place, or on the happening of the contingency, the accused slay the deceased with the weapon, the offense would ordinarily be murder. Miller, 112-878. Hogue, 51 (6 Jones), 381.

KILLING PERSON ORDERED OFF.-Where one goes to the house of another in a peaceable manner, without offering or threatening violence to his person or dwelling, and upon being ordered off and not going immediately, is killed by the owner of the premises, the slayer is guilty of murder, although he had previously forbidden the deceased from coming on his premises. Smith, 20 (3 D. & B.), 118.

SEPARATION OF JURY.-If the jury be allowed to separate without agreeing upon a verdict the defendant must be discharged. Garrigues, 2-241.

DISCHARGE OF JURY BEFORE VERDICT.—The jury can not be discharged before rendering verdict in the discretion of the court, without the prisoner's consent. Ephraim, 19 (2 D. & B.), 163.

CONVICTION FOR ANY DEGREE OF THE CRIME. The defendant, under an indictment for murder, may be convicted of murder in the first degree, second degree, manslaughter, assault with deadly weapon, or simple assault. Hunt, 128-586.

WITHDRAWAL OF ENTRY NOT TO TRY FOR FIrst Degree.-Where an entry is made that a verdict of murder in the first degree will not be asked, and, on appeal of defendant from a conviction for a lesser offense, a new trial is granted, the solicitor may withdraw the notice on the next trial and try for murder in the first degree. Caldwell, 129-685.

NOL. PROS. AS TO FIRST DEGREE.-The solicitor may take a nol. pros. as to murder in the first degree and try on the indictment for second degree or manslaughter. Caldwell, 129-682.

INSANITY MUST BE PLEADED.-If there is no allegations that the prisoner was insane at the time of the trial no issue as to insanity need be submitted. Spivey, 132-989.

FACTS IN MITIGATION, HOW SHOWN.-The prisoner is required only to "satisfy" the jury of facts sufficient to reduce the killing to manslaughter to establish a plea of self-defense, and not to satisfy them by "stronger proof" or greater proof." Barrett, 132-1005.

KILLING BY EITHER OF TWO PERSONS.-Where two persons are charged with killing another, but not with conspiracy, the jury should acquit if they have a reasonable doubt as to which one inflicted the injury. Goode, 132-982.

CONVICTION FOR ASSAULT ONLY.-Upon indictment for murder the prisoner may be convicted for assault and acquitted of the felony. Fritz, 133-728. ACCOMPLICE.—A jury may convict on the unsupported testimony of an ac. complice, though they should be cautioned not to do so. Register, 133-747. ACCESSORY BEFORE THE FACT.-An accessory before the fact may be tried with the principal by a special venire. Register, 133-751.

JURY VIEWING SCENE.-An alley, which was the scene of the homicide, was on the side of the hotel where the jury were quartered during the trial; on two occasions the jury were taken through the alley by the officers for necessary purposes; the jury could see the alley from the hotel window, and cach time they passed by it, and could see the electric light and to what extent it lighted the street and alley, but no remarks were made by any of the jury, or by any other person to them, as to the condition of the alley or the light. Held, that there was no error in refusing a new trial. Boggan, 133-761.

NEW TRIAL FOR FULL CHARGE.-Upon appeal from a conviction for a lesser offense than that charged in the indictment, a new trial, if granted, must be upon the full charge of the bill. Matthews, 142-621.

DYING DECLARATION.-Where a request to charge "that the dying declarations of the deceased should be received with caution and care," is nodified by substituting "should be carefully weighed and considered," there is no error. Davis, 134-634.

The deceased, on Monday morning about 3:30, stated to his brother, in answer to inquiries, that he was in a bad fix; that he was going to leave them all, and hated to leave his children. To another witness he stated on Monday afternoon that he was getting weaker, and believed he was going to die, and that the doctors thought he could not possibly get well. He died the next day. Held, that the dying declarations were competent. Boggan, 133–763.

The credibility of medical witnesses in testifying to the condition of the deceased at the time of making dying declarations is a question for the jury. Davis, 134-633.

WHEN CHALLENGE MADE.-A challenge propter defectum must be made when the juror comes to the book to be sworn and before he is sworn or the right to challenge will be waived. Lipscomb, 134–697.

MITIGATION. Facts and circumstances in mitigation or excuse need be shown only to the satisfaction of the jury. Clark, 134–698.

HOSPITALS.

Sec. 437 (4569). Superintendent may appoint employees as policemen, who may arrest without warrant.

The superintendent of each hospital and the superintendent of the North Carolina school for the deaf and dumb is each hereby empowered to appoint such number of discreet employees of his hospital or school as he may think proper, special policemen, and within the grounds of such hospital or school the said employees so appointed policemen shall have all the powers of policemen of incorporated towns. They shall have the right to arrest without warrant persons committing violations of the state law or the ordinances of that hospital or school, in their presence, and within the grounds of their hospital or school, and carry the offenders before some justice of the peace for trial. The justice of the peace shall issue a warrant and proceed as in other criminal cases before him. 1899, c. 1, s. 55; 1901, c. 627.

Sec. 438 (4570). Special policemen to take oath; filed with board of directors.

Before exercising the duties of a special policeman, the employees appointed, as in the preceding section, shall take an oath of office before some justice of the peace of the county, or other officer empowered to administer oaths, and the same shall be filed with the records of the board of directors. The oath of office shall be as follows:

I, ........, do solemnly swear (or affirm) that I will well and truly execute the duties of office of special policeman in and for the state hospital at according to the best of my skill and ability and according to law; and that I will use my best endeavors to enforce all the ordinances of said hospital, and to suppress nuisances, and to suppress and prevent disorderly conduct within said grounds. So help me, God.

.......

Sworn and subscribed before me, this .... day of .... A. D. 1899, c. 1, s. 56; 1901, c. 627.

HOTELS AND BOARDING-HOUSES.

Sec. 439. Protection of keepers of public houses.

SECTION 1. A person who obtains any lodging, food or accommodation at an inn, boarding-house or lodging-house without paying therefor, with intent to defraud the proprietor or manager thereof, or who obtains credit at such an inn, boarding-house or lodginghouse by the use of any false pretense, or who, after obtaining credit or accommodation at such an inn, boarding-house or lodginghouse, absconds and surreptitiously removes his baggage therefrom without paying for his food, accommodation or lodging, shall be guilty of a misdemeanor, and shall upon conviction be fined or imprisoned at the discretion of the Court.

1907, c. 816.

HUNTING.

Sec. 440 (3459). Before daylight and after sunset.

'If any person shall hunt or shoot any wild fowl, or game bird, on any day after the hour of sunset, or before the hour of daylight, or shall use any gun other than can be fired from the shoulder, or shall hunt or shoot wild fowl, birds or game of any kind on Sunday, he shall be guilty of a misdemeanor: Provided, that wild fowl may be hunted after sunset and before daylight and by firelight in that part of Bogue sound in Carteret county, west of Sally Bell's shoal.

Code, s. 2837; 1903, c. 346.

Sec. 441 (3470). Packages of game to be marked.

If any person shall deliver or knowingly receive for transportation any receptacle or package containing birds or game, unless the same shall be labeled on the address side in plain letters with the name and address of the owner and consignor, and with the kind or kinds of birds which the said package or receptacle contains, or shall falsely label the same he shall be guilty of a misdemeanor. 1903 (Pr.), c. 337, s. 7; code, s. 2835.

Sec. 442 (3471). Shipping certain birds.

If any person shall knowingly receive for transportation, or shall transport or cause to be transported, or have in his possession with the intent to transport, or to secure the transportation of, or shall in any manner carry or convey, beyond the limits of this state, except for purposes of propagation under permits issued by the Audubon Society of North Carolina, any partridge, pheasant,