influence brought to bear on the jury because there was opportunity; but, where the fact appears that undue influence was brought to bear on the jury, or that they heard other evidence than that offered on the trial, the supreme court will, as a matter of law, grant a new trial whether the defendant be convicted or acquitted, since there has been no trial in contemplation of law. Perry, 121-533.

Where the jury, after the close of the evidence, visited the scene of the alleged crime and made inquiry of a passer-by as to the identity of a certain house whose distance from the alleged locus was material, their conduct in thus eliciting other evidence than that offered on the trial is ground for a new trial whether their visit to the spot was by or without leave of the court. Perry, 121-533.

The fact that the jury partook of refreshments after retiring is not sufficient for a new trial unless it appear that such refreshments were furnished by the party in whose favor they have rendered their verdict. Sparrow, 7 (3 Murph.), 487.

It was error to refuse a new trial because several of the jurors made affidavit that they were induced to join in the verdict of guilty in the belief that the recommendation of mercy accompanying their verdict would prevent the infliction of the death penalty. Best, 111—638.

Where a motion for a new trial is based on affidavits the supreme court will not look into them; the court below must find the facts and spread them upon the record. Best, 111-638.

APPLAUSE BY AUDIENCE.-A new trial will not be granted because a large part of the crowd applauded when the state's counsel made a sharp retort on being interrupted by defendant's counsel to correct a statement, the court having promptly rebuked the audience and imprisoned one man for the disturbance, and having charged the jury that they would be unworthy to sit in the jury box if they permitted applause or sentiment to influence their verdict. Harrison, 145—.

MERITS OF CASE-CONSIDERED ON GRANTING NEW TRIAL.-In an appeal from a conviction in criminal cases it is not only proper, but the duty of the supreme court, when a new trial is granted, to decide upon the legal merits of the case, if it appears that the state can not ultimately succeed in the prosecution. Robinson, 143-620.

NO POWER.-In criminal cases the supreme court has no power under the constitution nor at common law to entertain a motion for a new trial on the ground of newly discovered evidence. Turner, 143-641.

ACT OF GOD SICKNESS OF The Judge.—When, owing to the illness of the trial judge, the cause could not proceed to judgment, and when, without default or laches on the part of defendant, she had her motion continued and moved for a new trial upon exception reserved at the next term, when judgment was pronounced against her, from which she appealed, the appeal was lost under Revisal, sec. 534, but a new trial will be granted, as the loss resulted from an act of God, which she could not foresee, and the consequences of which she could not avoid. Robinson, 143-620.

NON-RESIDENT JUROR.-The fact that a juror is not a resident of the county in which the indictment is tried is a good ground for challenge, but not for a new trial after verdict is rendered. White, 68-158.

TRIAL DE NOVO ON WHOLE CASE, THOUGH DEFENDANT ACQUITTED ON ONE COUNT. Where there is an acquittal on one count in an indictment and a conviction on another, and the defendant appeals, if a venire de novo is awarded it must be to re-try the whole case. Stanton, 23 (1 Ired.), 424.

MOTION TO SET ASIDE JUDGMENT TAXING PROSECUTOR WITH COSTS.-A motion to set aside an irregular judgment taxing prosecutor with the costs of the prosecution can not be made more than a year after the rendition of the judgment. Horton, 89-581.

REMEDY WHERE PROSECUTOR IS ERRONEOUSLY TAXED WITH COSTS AND FAILS TO APPEAL.-Where a prosecutor is taxed with the costs of the prosecution by an erroneous judgment, such judgment can not be set aside at a subsequent term of the court because of such rulings as render it simply erroneous; but where, in such case, he fails to appeal and sufficient excuse exists for his failure, his remedy is to apply for the writ of certiorari. Horton, 89— 581.

ON INDICTMENT FOR FALSE PRETENSE A SPECIAL VERDICT MUST FIND A CRIMINAL INTENT.-Where, on indictment for false pretense, a special verdict is rendered which fails to find a criminal intent, the verdict will be set aside and a new trial granted. Blue, 84-807.

REHEARING IN SUPREME COURT.-The supreme court has no power to rehear a criminal action. Jones, 69-16.

COURT CAN NOT SET ASIDE A VERDICT OF NOT GUILTY.-The judge has no right to set aside a verdict of not guilty, nor to grant a new trial after verdict of not guilty, on the motion of the state on the ground that one of the jurors had been improperly sworn. Freeman, 66-647.

FACTS MUST BE FOUND.—Where the facts are not found by the trial judge and spread upon the record, affidavits of grounds for a new trial can not be considered in the supreme court in reviewing the refusal of the motion. DeGraff, 113-688.

DISCRETION-MISTAKEN OPINION.-Where the trial judge rests his refusal to exercise his discretion upon the mistaken opinion either that it is not vested in him or that the facts are not such as to call for its exercise, it is error. Fuller, 114-885.

DISCRETION-WANT OF POWER.-A juror upon his voir dire swore that he had neither formed nor expressed an opinion as to the guilt of the prisoner and was accepted, and, after verdict and upon motion for a new trial, it appeared from affidavit that such juror had declared that, if summoned on the jury, he would hang the prisoner. The trial judge refused the motion because "the affidavits were not sufficiently strong": Held, that this was a refusal to exercise the court's discretion on the ground of a lack of power, and was therefore, erroneous. Fuller, 114-885.

INSANITY OF JUROR.-Where insanity of a juror is alleged as ground for a new trial it must be proved by clear and full evidence. Scott, 8 (1 Hawks), 25.

A motion for a new trial on the ground that one of the jurors became insane shortly after the rendition of the verdict, and might be supposed to have been insane while on the jury, may be denied in the discretion of the court, in the absence of any evidence that the juror was insane while acting as a juror. Rogers, 94-860.

NOLLE PROSEQUI.

Sec. 728 (3273). Nol. pros. after two terms; when capias and subpoenas to issue.

A nolle prosequi "with leave" shall be entered in all criminal actions in which the indictment has been pending for two terms of court and the defendant has not been apprehended and in which a nolle prosequi has not been entered, unless the judge for good cause shown shall order otherwise. The clerk of the superior court shall issue a capias for the arrest of any defendant named in any

criminal action in which a nolle prosequi has been entered when he has reasonable ground for believing that such defendant may be arrested or upon the application of the solicitor of the district. When any defendant shall be arrested it shall be the duty of the clerk to issue a subpoena for the witness for the state endorsed on the indictment.

1905, c. 360, ss. 1, 3, 4.

EFFECT OF NOL. PROS.-A nolle prosequi does not amount to an acquittal of the defendant, but he may again be prosecuted for the same offense, or fresh process may be issued to try him on the same indictment at the discretion of the prosecuting officer. Defendant, however, is not required to give bond for his appearance at any other time. Thornton 35, (13 Ired.), 256.

How CAPIAS ISSUED AFTER NOL. PROS.-A capias, after a nol. pros., does not issue as a matter of course at the will of the prosecuting officer, but leave of the court must be first obtained. Thornton, 35 (13 Ired.), 256.

SUBMISSION.-Where there are more than one count in the indictment a submission can not be made on one unless a nol. pros. is entered as to the others. Roberts, 2 (1 Hay.), 176 (201).

NOL. PROS. OF DEFECTIVE COUNT AFTER MOTION TO QUASH.-After a motion to quash an indictment containing two counts, one of which is defective, the solicitor may enter a nol. pros. as to the defective count, and try on the other. Buchanan, 23 (1 Ired.), 59.

AMOUNTS TO A DISCHARGE.-A nolle prosequi is a discharge of the defendant, but not an acquittal. It is the end of the prosecution unless it be with leave of the court, and neither the solicitor nor the clerk can authorize a capias to issue without such leave. Smith, 129-547.

WITH LEAVE.—The court may grant leave to issue a capias at the time a nolle prosequi is entered, and the simple entry of "nolle prosequi with leave" is in accordance with the practice in our courts. Smith, 129-547.

Where a nol. pros. “with leave" is entered, the solicitor may issue a capias without further leave of the court. Smith, 129-546.

SOLICITOR CONTROLS.-The solicitor has discretionary power to enter a nol. pros., and ordinarily he alone is responsible for the exercise of this power. Thompson, 10 (3 Hawks), 613.

Where the prosecuting officer directed a nolle prosequi upon the calling of a case for trial, without assigning any reason therefor, and after it was entered moved for a capias returnable to next term, it was held error for the court to refuse to order the capias, and this though the defendant was present urging a trial when the case was called. Thompson, 10 (3 Hawks), 613.

Sec. 729 (915). Books to be kept.

Each clerk shall keep the following books, which shall be open to the inspection of the public during regular office hours:

NOL. PROS. WITH LEAVE RECORD, which shall contain a record of all cases in which a nolle prosequi with leave is entered in criminal actions, with the term of court at which the order is made, and which shall be cross-indexed.

Code, ss. 83, 95, 96, 97, 112, 1789; 1893, c. 52; 1899, c. 110; 1903, c. 51; 1901, c. 2, s. 9; 1899, c. 82; 1889, c. 181, s. 4; 1887, c. 178, s. 2, 1903, c. 359, s. 6; 1901, c. 550, s. 3; 1901, c. 89, s. 13; 1899, c. 1, s. 17; 1905, c. 360, s. 2.

NON-TRANSFERABLE SCRIPT.

Sec. 730 (3730). Non-transferable script to laborers.

If any person who employs laborers by the day, week or month, shall issue in payment for such labor any ticket or tickets, certificate or other script bearing upon their face the word "non-transferable," or shall issue tickets, certificates or script in any form that would render them void by transfer from the person to whom issued; or shall refuse to pay to the person holding the same their face value, he shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not less than ten dollars nor more than fifty dollars for each offense, or imprisoned not more than thirty days.

1889, c. 280; 1891, c. 78; 1891, c. 456; 1891, c. 46; 1891, cc. 167, 370; 1895, c. 127; 1891, cc. 167, 456.

NUISANCE.

Sec. 731 (3446). Nuisance, failure to abate.

If any person, after having received a notification in writing from the county superintendent of health of any nuisance on the premises occupied by him, or any unoccupied premises belonging to him which is dangerous to public health, shall fail to abate the same for twenty-four hours after such notice is received he shall be guilty of a misdemeanor and shall be fined one dollar a day so long as said nuisance remains.

1893, c. 214, s. 22.

INDICTMENT PROFANITY.-An indictment charging the use of profane and vulgar language on a certain day and on divers other days in a public street, and in the hearing and presence of divers persons then and there assembled, and then and there repeating the same to the evil example and common nuisance of all good citizens then and there assembled, is sufficient. Brewington, 84-783.

An indictment for a nuisance by profanely swearing in a public place must set out the profane words, so that the court may decide as to their quality, and must also state that the offense was committed "in the presence and hearing of divers persons then and there assembled," and that "the acts were so repeated in public as to have become an annoyance and inconvenience to the public." Barham, 79-646.

An indictment which charges that defendant, in a public street, "did profanely curse and swear and take the name of Almighty God in vain,” to the common nuisance of the good people of the state then and there assembled, without stating how loud or how long he swore, or whether he was heard by any one or many, is insufficient. Powell, 70-67.

An indictment for swearing and taking the name of God in vain "for the space of two hours to the common nuisance of all the citizens of the state,"

is defective for failure to charge that the acts were so repeated and so public as to become an annoyance and inconvenience to the public, and that the swearing was in the hearing of persons then and there assembled. Jones, 31 (9 Ired.), 38.

The indictment must charge that the profanity was uttered in the hearing of divers persons, and an averment that it was "to the common nuisance of all the good citizens of the state then and there assembled" does not supply the omission. Pepper, 68-259.

An indictment charging that defendant "did publicly curse and swear and take the name of Almighty God in vain for a long time, to-wit: for the space of two hours, to the common nuisance of all the citizens of the state," can not be sustained, since there is no allegation that defendant is a common and notorious profane swearer, nor does it necessarily appear that the swearing was in the hearing of any person. Jones, 31 (9 red.), 38.

VERDICT.-Beating the drum and blowing the fife do not per se constitute a nuisance, and a special verdict finding that “some of the citizens were disturbed by the noise of the drums made by a procession celebrating emancipation day, without stating how many, or that the noise became so inconvenient and troublesome as to annoy the whole community, is not sufficient to warrant a judgment of guilty. Hughes, 72-25.

MILL-DAM. To render a mill-dam and pond a nuisance, and those who maintain it indictable therefor, it must be made apparent that the whole community, not every individual, but the community generally, is injuriously affected thereby. Holman, 104-861.

If the dam and pond are the proximate cause of the nuisance, those who maintain it are guilty, though such nuisance is aggravated by other causes which the owners did not produce, and over which they had no control. Ib.

If the nuisance is entirely the result of agencies and causes for which the owners are not responsible, operating upon the dam and pond and infecting them with pernicious qualities, those who maintain them are not liable criminally. Ib.

Evidence of the condition of the pond and adjacent lands prior to the indictment is competent. Ib.

The mere erection of the frame of a dam which, when completed by further work thereon, will pond water back and create a nuisance, does not of itself constitute a nuisance before injury ensues. Suttle, 115-784.

RIBALD SONG.—Where a ribald song is sung in a loud and boisterous manner on the public streets, in the presence of divers persons then and there present, and such singing continues for the space of ten minutes, this is a nuisance, though the special words charged may not have been repeated. Toole, 106— 736.

DRUNKENNESS.-Private drunkenness is not an offense, but public drunkenness may become a nuisance, and, therefore, an indictment which simply charges that defendant was a common, gross, and notorious drunkard, and that he, on divers days and times, got grossly drunk, is insufficient. Waller, 6 (2 Murph.), 230.

DRUNKENNESS AND PROFANITY.-Getting drunk on a single occasion and using loud and profane language "on or near the edge of one of the public streets" of a town is not indictable for a nuisance, if the persons assembled were not thereby annoyed or disturbed. DeBerry, 27 (5 Ired.), 371.

SWEARING. The continued and public use of profane oaths, frequently and boisterously repeated, though on a single occasion and but for the space of five minutes, is indictable as a public nuisance. Chrisp, 85-528.

Profane swearing, independent of the disturbance which it produces to those who hear it, is not indictable. Kirby, 5 (1 Murph.), 254.