a deputy sheriff, who takes it by virtue of a proper levy made by him after the attempted levy by the constable, since the constable's levy was void. Poor, 20 (4 D. & B.), 384.

Where a person charged with a misdemeanor escapes and flees, and the officer, while pursuing him, threatens to shoot, and does fire his pistol when within thirty feet of the fugitive, the officer is guilty of an assault, whether his intention was to hit the fugitive or to intimidate and induce him to stop. Sigman, 106-728.

A justice's judgment that defendant is guilty of trespass is not void because the warrant fails to state that the trespass was "after being forbidden" or "without license therefor," and is otherwise irregular, when defendant failed to appeal, and defendant can not justify resisting arrest under process issued afterwards to compel him to pay the bill of costs on the ground that such judgment is void. Dula, 100-423.

A magistrate's judgment imposing a fine and costs is not discharged by the fact that defendant was permitted to go at liberty on his agreement to pay in ten days, and on his failure to perform his agreement he may be arrested for the fine and costs. Dula, 100-423.

The prosecutor, under a special deputation, had executed a warrant for bastardy by arresting the defendant therein; and after the hearing the said defendant was committed to the custody of the prosecutor, and attempted to escape. The prosecutor pursued him, and the defendant in this case, without warning, threw out his foot and tripped the prosecutor, causing him to fall: Held, that defendant was guilty of an assault. Hedrick, 95-624.

Where defendant, before being arrested, went before the magistrate and entered into a recognizance to appear at a future time, but failed to appear, the magistrate has no right to reissue the warrant, and the officer acting under such warrant was a trespasser. Queen, 66-615.

The protection afforded by a precept regularly issued to an officer for the arrest of a person charged with crime extends to all who aid in its execution. James, 80-371.

A person who accompanies an officer for the purpose of identifying another person charged with crime is entitled to the benefit of the precept in the hands of the officer. James, 80-371.

An officer is justified in executing a search warrant, though it does not appear to have been issued on oath, if the justice had jurisdiction to issue it. Mann, 27 (5 Ired.), 45.

A person who makes a false affidavit charging another with a crime, and accompanies an officer for the purpose of identifying the person charged with the crime, is entitled to the benefit of the warrant issued upon the false affidavit so as to protect him from indictment for assault and battery in thus having the arrest made under the false charge. James, 80—371.

NO SEAL ON WARRANT BY WHICH DEFENDANT IS ARRESTED.-A seal is essential to a warrant issued by a magistrate for the arrest of a person, and if there be no seal the warrant is void, and the defendant is justified in resisting its execution. Worley, 33 (11 Ired.), 242.

8. EVIDENCE.

Evidence of threats made by defendant against the prosecutor prior to the commission of the offense, is inadmissible, since the guilt or innocence of defendant depends altogether on the facts and circumstances immediately connected with the transaction. Norton, 82-628.

Defendant's hogs having been impounded by the town marshal, he proceeded to liberate them by breaking the pound. The marshal came up and ordered him to desist, and, on defendant's refusal to desist, threatened to

arrest him and flourished a pistol, whereupon defendant assaulted the marshal with a piece of scantling. The officer had no warrant. The defendant set up that the hogs had been taken under an invalid ordinance: Held, that the refusal to admit the town ordinance in evidence for the purpose of showing its invalidity was not error, since the hogs were in the peaceable possession of the officer, and defendant had no right to regain possession by violence. Black, 109-856.

Evidence that the prosecutor's brothers had been convicted of the same offense for which defendant is on trial is irrelevant. Burke, 82-551.

Evidence of previous threats of personal violence against defendant by the prosecutor is inadmissible. Skidmore, 87-509.

Where there was some doubt as to the identify of the defendant as being the person who struck the blow, it was competent for the state to show that shortly before the assault the prosecutor had said in the hearing of the defendant that "no honest man would avail himself of the bankrupt law," and then to prove that defendant's father had been talking about going into bankruptcy. Griffis, 25 (3 Ired.), 504.

A wife is not a competent witness against her husband to prove a battery on her person by him, except in case where a lasting injury is inflicted, or threatened to be inflicted upon her. Hussey, 44 (Busb.), 123.

A husband is a competent witness against his wife on indictment against her for assault and battery in striking the husband with an axe, since the use of such an instrument indicates malice. Davidson, 77–522.

The prosecutrix was assaulted and beaten in the night by a woman disguised as a man, and the state, as a means of identification, was allowed, over defendant's objection, to prove by the prosecutrix that about a week before the assault defendant was at her home disguised as a man, and the prosecutrix there recognized her. Defendant then introduced a witness by whom he proposed to show that he met the prosecutrix and another woman the night after the assault, and that the other woman stated in the presence and hearing of the prosecutrix that the person who committed the assault was unknown Held, that the rejection of this evidence was error. Burton, 94-947.

On indictment for an affray, one defendant may be examined as a witness by the state against the other defendant. Weaver, 93–595.

In such case it is not error for the court to caution the witness before counsel for the other defendant cross-examines him that he need not tell anything to criminate himself. Ib.

Where there is evidence that the correction inflicted by a master upon his apprentice was excessive and cruel, evidence of the bad character of the apprentice, offered to rebut malice, is incompetent. Dickerson, 98-708.

A witness can not be impeached by showing that he made declarations concerning the party against whom he testifies showing ill-will and malice unless the witness has first been interrogated as to the declarations. Ib.

9. LANGUAGE CALCULATED TO BRING ON FIGHT.

LANGUAGE CALCULATED TO BRING ON FIGHT.-Where one person by such abusive language to another as is calculated and intended to bring on a fight, induces that other to strike him, he is guilty, though he may be unable to return the blow. Perry, 50 (5 Jones), 9.

Where defendant calls the prosecutor a d-d son-of-a-bitch, and the proseeutor then advances on him with a knife, and defendant shoots to save himself from death or great bodily harm, he is guilty of having used words calculated to bring on the fight unless he retreats as far as he safely can. Lawhorn, 88-634.

Defendant and another were quarreling in the public road near the dwelling-house of the prosecutrix, the defendant having a pistol in his hand, and

was cursing and using vulgar language in the hearing of the inmates of the house. The son of the prosecutrix came out with an ordinary walking-stick in his hand, and remonstrated with defendant, who still holding his pistol, cursed and denounced him, saying he was in the public road and would do as he pleased. After the interchange of a few words the lie was given by defendant, and the son struck him with his stick, when defendant attempted to use his pistol, but was prevented by those present: Held, that defendant by his acts made himself a trespasser, and having used language calculated to bring on a fight, was guilty of an affray. Davis, 81-351.

If a person by such abusive language, or offensive conduct towards another, as is calculated to bring on a fight, induces that other to strike him, he is guilty, though he does not return the blow. Fanning, 94-940.

One who, by conduct calculated to bring on a breach of the peace, provokes an assault, can not defend on the ground of self-defense. Shields, 110-497. If one man by words or signs instigates another to strike a third he is guilty. Perry, 50-11.

10. INDICTMENT.

Where the indictment charges a rescue and also an assault and battery, and the verdict is general, if the averments as to the rescue are uncertain and bad, thy may be rejected as superfluous and immaterial and the court may pass judgment for the assault and battery. Morrison, 24 (2 Ired.), 1.

An indictment for an assault and battery on a policeman need not aver the official character of the policeman. Belk, 76–10.

An indictment contained two counts, one for assault with a deadly weapon, "with a club, and the other for an assault producing serious damage. On the trial it appeared that no club or deadly weapon was used, that serious injury was inflicted, that the indictment was found within six months after the commission of the offense, and that a justice of the peace had assumed jurisdiction and finally disposed of the case: Held, (1) that the description of the instrumenti n the first count, "a club," ex vi terminini, imputed a deadly weapon; (2) that although the second count was defective in that it did not set out the nature and extent of the injury inflicted, the superior court acquired jurisdiction under the first count; (3) that the trial before the justice was a nullity. Phillips, 104-786.

Where several counts are drawn to meet the different phases of the same transaction, the court will not compel an election. Ib.

The words "assault and strike" in a warrant are sufficient to charge a simple assault, and such a warrant will support a plea of former acquittal. Price, 111-703.

It is not necessary that a warrant for assault should charge that it was issued upon a sworn complaint. Price, 111-703.

Where the indictment in the superior court charges a deadly weapon, but on the trial the court finds that the instrument used was not a deadly weapon, a plea of former conviction or acquittal in a justice's court should be sustained. Price, 111-703.

A description of an instrument used as "an axe," cx ri termini, imports a deadly weapon. Shields, 110-497.

Where an assault is charged to have been committed with a deadly weapon the character of the weapon must be averred. Russell, 91—624.

Where serious damage is alleged the extent of the injury must be averred. Russell, 91-624.

Where an indictment, found in October, 1893, charged that on the first day of July, 1893, defendant made an assault with a deadly weapon, to-wit: a rock, knife and brickbat, want of jurisdiction did not appear, for, time not

being of the essence of the offense, the charge would have been sustained and the jurisdiction maintained by proof of a simple assault more than one and less than two years from the finding of the indictment. Ridley, 114-827. A bill charging that defendants, with pistols, rocks and knives, did assault, beat, wound and ill-treat the prosecutor, is sufficient, and will not be quashed because it contains many charges of intimidation and conspiracy. Bryson,

127-574.

Where serious damage is done the bill must describe the damage. Battle, 130-655.

11. CHARGE.

The evidence was that a serenading crowd of about twenty persons went to defendant's house at 9 o'clock in the night, and went around the house ringing bells and blowing horns; that guns were fired by the crowd a few times; and that as they were going away defendant fired at the prosecutor, inflicting a serious wound on his leg. Defendant testified that his child, who was sleeping near a window, through which the noise and the flash of the firing was seen, came running to him with blood on her face, caused, as he did not then know, but afterwards learned, by her running against a table, and under the impulse of the moment, believing that she had been shot, he got his gun and went to the door, and seeing the flash of pistols, fired, as he supposed, by the retreating crowd, he fired into the crowd: Held, that an instruction which excluded from the jury the consideration as to whether defendant acted under a reasonable belief that himself or family was in immediate danger, was erroneous. Nash, 88-618.

It is error for the court to instruct the jury that if the witness "did strike the defendant, and that defendant drew his pistol in self-defense, although he did not cock it or point it at witness, it would amount to an excessive use of force," since the same act can not be in self-defense and also an excess of force. Jones, 77-520.

Where the error assigned is that the trial judge laid down an abstract prineiple of law which had no connection with the case in a way prejudicial to defendant, but the case on appeal does not show to what the exception relates, the court will refuse to consider it. Gardner, 94-953.

The court has a right to explain to the jury the difference between positive and negative evidence, and an illustration to explain the difference is not prejudicial, when the jury is expressly told that it is given merely as an explanation, and that they must determine the fact according to the weight they see fit to give the evidence. Ib.

It is error for the court to instruct the jury "that in passing on the eredibility of a witness they shall consider that it is a rule of law, a presumption that men testify truly and not falsely." Jones, 77-520.

It is error for the court, on indictment of a police officer for using excessive force in making an arrest, to fail to call the attention of the jury to the good faith in which the officer claims to have acted. MeNinch, 90-695.

12. JAILER WHIPPING PRISONER.

THE RIGHT OF A JAILER TO WHIP PRISONER.-A jailer who whips a prisoner confined in the jail, with a buggy-whip, in such a manner as to cut the blood out of her arms and back, but not so as to disable her, the places healing up in a week or two, is guilty of assault and battery, though he whipped her because she was singing in a loud and boisterous manner, to the great discomfort of his wife who was very sick and living with him in the jail, and refused to desist from her boisterous conduct when remonstrated with. He had a right to subdue and keep her in subordination by reasonable and proper means, but not to inflict such cruel punishment by beating with a horse-whip. Roseman, 108-765.

13. TRESPASSER.

The owner of premises may use sufficient force under all the circumstances to remove a trespasser, though the force must not be excessive. Crook, 133— 672.

Where a trespasser or unwelcome visitor invades the premises of another, armed with a deadly weapon and defiantly stands his ground, the occupant may at once resort to force, and the doctrine of molliter manus does not apply. Taylor, 82-554.

An instruction that if a trespasser refused to leave when directed, the owner of the premises had a right to gently remove him, but if the owner became angered in consequence of what the trespasser said and assaulted him, that is, laid violent hands on him, the owner would be guilty, is erroneous, since the owner, after using gentle means, had a right to use such force as was necessary under the circumstances to remove the trespasser. Crook, 133— 675.

14. EXCESSIVE FORCE.

Whether excessive force was used by the defendant is a question for the jury. Goode, 130-651.

15. REPELLING FIERCE ASSAULT.

While ordinarily a deadly weapon can not be used to repel a simple assault, this principle does not apply when the fierceness of the assault, the position of the parties, or the great difference in the relative sizes or strength of the parties, show that the danger of bodily harm is imminent. Hill, 141-769.

16. PUNISHMENT.

Imprisonment in jail for five years and a recognizance of $500 to keep the peace for five years after the expiration of the term of imprisonment, imposed on a defendant for whipping his wife with such severity as to leave the marks for two or three weeks, is "cruel or unusual punishment," within the prohibition of Const. N. C., art. 1, section 14. Driver, 78-423.

A fine of $100 imposed on a jailer for whipping a prisoner with a buggywhip in such a manner as to cut the blood out of her arms and back, but not to disable her, the places healing up in a week or two, is not excessive, and is clearly within the discretion of the court, since the injury inflicted was serious. Roseman, 108-765.

Where the court adjudges that defendant be fined and imprisoned, and the fine is paid and part of the imprisonment undergone, it can not, even at the same term, recall and suspend the judgment, nor can the court at a subsequent term sentence him again for the same offense. Warren, 92-825.

Imprisonment in jail for six months is excessive and unwarranted punishment of one convicted of a simple assault and battery upon a person who was acting as a special policeman at the time, but whose appointment was unwarranted, there being no evidence that there was any unusual demand for his appointment within the meaning of the act authorizing the mayor to appoint special policemen. Holmes, 118-1201.

A sentence of two years on the roads is not excessive punishment on conviction for an aggravated assault with a deadly weapon. Haynie, 118

1265.