NO EVIDENCE-REFUSAL TO CHARGE.-It is not error to refuse a charge, however correct in law, where there is no evidence to support. Hicks, 130705.

POWERFUL "SUMMING UP" FOR STATE.-Where the court gives "every reasonable contention of the state" it is erroneous to give special instructions asked by the state and containing "a powerful summing up" for the state. McDowell, 129–523.

ASSUMING FACTS.-A charge containing statements of facts assumed to be true and prejudicial to the prisoner is erroneous. McDowell, 129–523.

COMPLIMENTARY WITNESS BEFORE TRIAL.-A complimentary remark as to the character of a witness, made before the jury is empaneled, is not forbidden by the common law nor the statute. Howard, 129-584.

CALLING ATTENTION TO PUNISHMENT. It is not erroneous for the judge to tell the jury the punishment prescribed by law for the crime for which the defendant is being tried. Garner, 129–536.

MOTIVE-ASCRIBING ACT TO.-It is a rule of law that "where the act or language of a person may be attributed to two motives, one criminal, the other not, the law will ascribe it to that which is innocent," but it is not error to add thereto: "This is a general rule, and applies in this case, unless the testimony convinces the jury the criminal motive is the true one." Jackson, 129–558.

EVIDENCE NOT ALL SENT UP.-Where the record is that "the judge charged among other things," it will be presumed that all the charge was not sent up, and an exception for failure to recapitulate the evidence can not be sustained. Kinsauls, 126-1097.

MOTIVE NOT SHOWN BY EVIDENCE.-A charge which directs the attention of the jury to a motive for the crime which the testimony does not tend to prove is erroneous. Smith, 125-615. ·

ASSUMPTION OF UNPREJUDICED FACT.-An assumption by the judge in his charge that a fact deposed to is true, but which, if true, could not prejudice the defendant, is not erroneous. Miller, 18 (1 D. & B.), 501.

ALL THE TESTIMONY NOT REPEATED.-Where the judge did not repeat all the testimony, but only such parts as he thought would aid the jury, there is no error. Lipsey, 14 (3 Dev.), 485.

CHARGING THAT PROSECUTOR NOT MISTAKEN.-It is error to charge that from the nature of the prosecutor's testimony it was not possible for him to have been mistaken. Presley, 35 (13 Ired.), 494.

BELIEF OF WITNESS-CHARGE AS TO.-A witness, in answer to the solicitor, stated that he believed certain tracks were those of the defendant, whereupon counsel for defendant made the witness admit that he had never measured the foot or shoe of defendant, and had never even seen him until his arrest. The solicitor then asked the witness to state why he thought defendant made the tracks, but this evidence was excluded on objection, the court, however, saying that defendant might call for the reasons of the witness for his opinion, which was declined. In the argument counsel for defendant asserted that the witness had given his opinion, but could not assign a single reason in support of it: Held, it was not error for the court, in charging the jury, to state that he had given defendant's counsel permission to call for the reasons for witness's belief and that they had declined to do so. Whit, 50-228.

CHARGING ONE SIDE OR OTHER GUILTY OF PERJURY.-A charge which puts the witnesses on each side in collision and makes perjury on the one side or the other inevitable, ought not to be given, if possible to avoid it. Bailey, 60-141.

ERROR IN RECITING EVIDENCE.-An error in reciting the evidence is cured by the failure of counsel to call it then and there to the attention of the court and have it corrected. Murray, 139-540.

CALLING ATTENTION TO POSITIVE AND NEGATIVE TESTIMONY.-Where it was material for the state to show that the prisoner fired the fatal shot, and several witnesses were introduced who swore positively that when the fourth shot was fired the weapon was in the hands of the prisoner, while other witnesses testified that they did not see the pistol, and did not know in whose hands it was when the fourth shot was fired, an instruction that it was the jury's duty to give to positive testimony greater weight than they give to negative testimony, and that the testimony of the former witnesses was what the law terms positive, and that the testimony of the latter was negative, was proper, where the judge followed it up by an instruction that left the credibility of the witnesses to the jury. Murray, 139–540.

NO REQUEST FOR INSTRUCTIONS.-Where a defendant did not ask for any additional instructions, he can not complain that the court did not present to the jury his contentions. Bohanon, 142-596.

SUBSTANTIALLY CORRECT.-If the charge substantially embraces the prayers of the appellant so far as they are correct, it is sufficient. It is not necessary to give them verbatim. Burnett, 142-578.

PRESUMPTION.-The presumption is that the trial court charged the jury fully and correctly, and that the jury found all the facts necessary to constitute the crime. Martin, 141-832.

Sec. 527 (536). Instructions in writing, when.

Every judge, at the request of any party to an action on trial, made at or before the close of the evidence, before instructing the jury on the law, shall put his instructions in writing, and read them to the jury; he shall then sign and file them with the clerk as a part of the record of the action.

Code, s. 414; C. C. P., s. 238.

Sec. 528 (537). Written instructions in jury room, when.

Whenever a judge shall put his instructions to the jury in writing either of his own will or at the request of any party to an action on trial, he shall, at the request of either party to the action, allow the jury to take his instructions with them on their retirement, and the jury shall return said instructions with their verdict to the court.

1885, c. 137.

Sec. 529 (538). Requests for instructions.

Counsel praying of the judge instructions to the jury, shall put their request in writing entitled of the cause, and sign them; otherwise the judge may disregard them. They shall be filed with the clerk as a part of the record.

Code, s. 415; C. C. P., s. 239.

The word "instructions" relates to principles of law applicable to the case, and which would influence the jury, after finding the facts, in shaping their responses to the issues. Dewey, 139-557.

Oral remarks to the jury, upon their return into court with the statement that they could not agree, that "it was the duty of a jury to reconcile the testimony, where there was a conflict, and if they could not reconcile the testimony, then it became their duty to adopt the most plausible theory of the evidence in arriving at a verdict," do not amount to "instructions" within the meaning of this section. Dewey, 139–557.

It is not a violation of this section for the judge, before reading the written charge, to state orally to the jury that the case was one of importance, and that they must not be governed or swayed by sympathy, prejudice or passion, but should render such verdict as is warranted by the evidence. Dewey, 139-557.

At the request of counsel, made in apt time, the court must put its entire charge in writing, and it is error to charge them orally upon any point even when they return into court for further instructions. Young, 111-715.

After the judge has handed his written instructions to the jury, he may, upon request of the jury after they have retired, send a written memorandum of certain dates necessary to be remembered in order to enable them to reach a conclusion. Cagle, 114-835.

The rule that the charge shall be in writing when requested does not forbid any and all oral expressions from the judge. Hence, where, by an expression to the jury, the defendant got the benefit of a prayer for instructions, he can not complain that it was not put in writing. Crowell, 116–1052.

JUDICIAL NOTICE.

The courts will take judicial notice of the political subdivisions of the state, the boundary lines of counties therein, when fixed and declared by public statutes, the geographical positions of cities and towns within the limits of their jurisdiction, and prominent water-courses within such limits when referred to in public statutes. Railroad, 141-846; Ray, 97-510; Snow, 117-774.

JURISDICTION.

JUSTICE OF THE PEACE.

Sec. 530 (1427). Jurisdiction in criminal actions.

Justices of the peace shall have exclusive original jurisdiction. of all assaults, assaults and batteries, and affrays, where no deadly weapon is used and no serious damage is done, and of all criminal matters arising within their counties, where the punishment prescribed by law shall not exceed a fine of fifty dollars, or imprisonment for thirty days: Provided, that justices of the peace shall have no jurisdiction over assaults with intent to kill, or assaults with intent to commit rape, except as committing magistrates: Provided further, that nothing in this section shall prevent the superior or criminal courts from finally hearing and determining such affrays as shall be committed within one mile of the place

where and during the time such court is being held; nor shall this section be construed to prevent said courts from assuming jurisdiction of all offenses whereof exclusive original jurisdiction is given to justices of the peace if some justice of the peace, within twelve months after the commission of the offense, shall not have proceeded to take official cognizance of the same.

Const., Art. IV, s. 27; Code, s. 892; 1889, c. 504, s. 2.

POWERS OF MAGISTRATES.-A justice of the peace can only exercise such powers as are conferred upon him by the constitution, art. 4, sec. 27, and the statutes in harmony therewith. His jurisdiction is special, not general, and his authority is not to be enlarged by principles of law applicable to courts of general jurisdiction; nor can he adopt methods of procedure not strictly allowed by law. Jones, 100-438.

BURDEN AS TO TIME.-Where a justice has original jurisdiction the burden is on defendant to show that twelve months have not elapsed. Carpenter, 111-706.

JUSTICE HAS CONCURRENT JURISDICTION AFTER TWELVE MONTHS.-A justice of the peace, after the expiration of the twelve months, has concurrent jurisdiction with the superior court of offenses of which he has exclusive original jurisdiction. Roberts, 98-756.

AMENDMENT OF 1891 VOID.-The act of 1891, which amended the above section by striking out in line 3 between the word "where" and the word "no" the words "no deadly weapon is used and," leaving section 31 (The Code, sec. 987), which still prescribes that assaults with a deadly weapon may be punished by a fine or imprisonment in the discretion of the court, unamended, does not confer jurisdiction on justices of the peace in cases where a deadly weapon was used but no serious damage was inflicted. Though the statute now in terms confers jurisdiction on justices of the peace, the punishment being still prescribed by section 31, the amendment is inoperative and of no effect. Fesperman, 108-770.

JAILER WHIPPING PRISONER WITH BUGGY WHIP.-An indictment charged that defendant made an assault upon the prosecutrix with a "deadly weapon, to-wit, a club," and on the trial it appeared that the defendant was the keeper of the jail and resided therein with his family; that his wife was seriously ill; that prosecutrix was imprisoned in the jail and was conducting herself in a loud, boisterous and disorderly manner, and refused to desist when ordered by defendant; that thereupon he took her to another apartment and gave her a severe whipping with a buggy whip, cutting the flesh on her back and arms, but she was not disabled and the places healed up in a week or two: Held, that the superior court had jurisdiction. Roseman, 108-765.

SUFFICIENT TO CHARGE ASSAULT WITH DEADLY WEAPON.-Where the indictment charges an assault with a deadly weapon the superior court has jurisdiction, though it is shown that the offense was only a simple assault, and was committed within less than twelve months from the finding of the bill. Fesperan, 108-770.

DEFENDANT MUST PROVE OFFENSE COMMITTED WITHIN SIX MONTHS.— Where the indictment charges an assault with a deadly weapon without stating the character of the weapon used, and it does not appear that the offense was committed within six months from the finding of the bill, the indictment will be sustained for a simple assault and battery, and the superior court retains jurisdiction. Russell, 91-624.

INDICTMENT MUST NAME THE WEAPON AND GIVE ITS CHARACTER.-Where the indictment alleges that the offense was committed with a deadly weapon, but fails to name the weapon or set forth its character, or where the bill

alleges that serious damage was done, but fails to set forth the nature and extent of the injury, the superior court has no jurisdiction until after six months from the commission of the offense. Cunningham, 94-824.

SUBMISSION FOR SIMPLE ASSAULT ON INDICTMENT FOR RAPE.-Where the indictment charges an assault with intent to commit rape, and defendant submits for a simple assault, the superior court, having obtained jurisdiction, may proceed to judgment. Johnson, 94-863.

INDICTMENT FOR SIMPLE ASSAULT BEFORE SIX MONTHS ELAPSE.-Where the indictment is for a simple assault, and it appears that the offense was committed within six months next before the finding of the bill, the superior court has no jurisdiction. Berry, 83-603.

DEFENDANT BOUND WHEN JUSTICE HAD JURISDICTION.-A warrant was issued by a justice for an offense of which he had exclusive jurisdiction, but the record showed that defendant waived a trial and was bound for his appearance at the next term of the superior court, and the record of the superior court shows that "upon the foregoing warrant and appeal the case came on to be tried:" Held, that there having been no trial before the justice, the superior court did not acquire jurisdiction, and the judgment must be arrested. Lachman, 98-763.

INDICTMENT WITHIN SIX MONTHS ALLEGING DEADLY WEAPON.-Where the indictment charges an assault "with a certain deadly weapon, to-wit, a chair, knife and pistol," the superior court has jurisdiction, though it appears that no deadly weapon was used, no serious damage done, and that the prosecution was begun less than six months since the commission of the offense. Ray, 89–587.

VERDICT OF GUILTY ON SECOND COUNT CHARGING ASSAULT AND BATTERY.Where the indictment contains two counts, one charging an assault with a deadly weapon and the other an assault and battery, and the verdict is "not guilty" on the first count but "guilty" on the second, the inferior court having once acquired jurisdiction, may proceed to judgment. Speller, 91—

526.

INDICTMENT MUST STATE NATURE AND EXTENT OF INJURY.-Where the indictment simply charges that the prosecutor was "seriously injured," or that "serious damage" was done, without setting out the nature or extent of the injury, and the evidence shows that the offense was committed within six months, and that "an indecent assault" was made on the person of the prosecutrix, the court should direct a verdict of not guilty. Earnest, 58-740. SERIOUS DAMAGE.--Defendant assaulted the prosecutor with his fist, knocked him down, jumped on him and beat him in a cruel manner, stunning him and badly injuring his eyes, but the injuries were not permanent: Held, that there was serious damage, and a justice had no jurisdiction. Shelly, 98-673.

BURDEN ON DEFENDANT TO SHOW THAT SIX MONTHS HAD NOT ELAPSED.If the offense has been committed within six months from the finding of the bill, the burden is on the defendant to show it, but the bill must allege that the assault was made with a deadly weapon and describe it, or that serious damage was done, and set out its extent and nature. Shelly, 98-673.

INDICTMENT MUST SHOW CHARACTER OF WEAPON.-Where the indictment charges an assault and battery "with a deadly weapon, to-wit, a certain stick," but fails to give the dimensions of the stick, or state the damage done, and it appears that the offense was committed within less than six months before the finding of the bill, the superior court does not have jurisdiction. Porter, 101-713.

AFFRAYS COMMITTED WITHIN ONE MILE OF COURT-HOUSE.-Under this statute the superior courts have only concurrent jurisdiction with justices of the peace of affrays committed within one mile of the place where court is being held. Bowers, 94-910.