CRIMINAL LAW.

See, also, Grand Jury; Habeas Corpus; Indict-
ment and Information; Pardon; Witness.
Costs in criminal cases, see Costs, 11-13.
Criminal libel, etc., see Libel and Slander, 3, 4.
Illegal liquor selling, see Intoxicating Liquors,
7-17.

Particular crimes, see Assault and Battery; Bas-
tardy; Bigamy; Burglary; Disorderly House;
Embezzlement; Escape; Fornication; Gaming;
Homicide; Larceny; Obstructing Justice; Per-
jury; Rape; Rescue; Robbery.

Prosecution for enticing servant away, see Master
and Servant, 5–7.

nuisance, see Nuisance, 1, 2.
unlawfully removing crops, see Landlord and
Tenant, 22-25.

Sale of mortgaged property, see Chattel Mort-
gages, 9.
Jurisdiction.

1. Where a justice of the peace, having orig-
inal jurisdiction of an offense, transfers it improp-
erly to the superior court, which could take cogni-
zance of it only on appeal, the latter court on motion
will remand the cause.-State v. Sykes, (N. C.) 10

S. E. 158.

2. The city court of Clark county, having no
Jurisdiction to try felonies, has no jurisdiction to
try a person charged with receiving stolen goods,
where the evidence shows that the article stolen
and received was a bale of cotton, to steal which
is made a felony by Code Ga. § 4419a.-Morris v.
State, (Ga.) 10 S. E. 368.

3. A presentment in the superior court was
made within six months after the commission of an
offense, which was for that period within the ex-
clusive jurisdiction of a justice of the peace. Held,
that the presentment was void, and did not affect
the validity of a subsequent indictment and con-
viction in the superior court.-State v. Cooper, (N.
C.) 10 S. E. 510.

4. Under Code N. C. § 926, requiring the sheriff
to adjourn court from day to day till the fourth
day of the term, if the judge is absent, where the
record shows that the court was opened on the
third, it will be presumed that the sheriff did so
adjourn, and jurisdiction will not be lost.-State v.
Weaver, (N. C.) 10 S. E. 486.

Principal and accessory.

5. On indictment for assault with intent to kill,
it appeared that defendant J. went to the house of

defendant E., before daylight, and told him that
the assaulted persons were tearing down a fence,
and taking his gun followed E., who opened fire
from some bushes. The state's evidence tended
to show that J. joined in the attack, but he testi-
fied that he did not shoot, but stopped 150 yards be-
hind, until the balls caused his retreat. Held, that
the court properly charged that if J. was 150 yards
in the rear, armed with his rifle, knowing that E.
was lying in wait, with intent to kill, ånd his pur-
pose was to aid E., he was aiding and abetting,
and would be guilty as principal.-State v. Chas-
tain, (N. C.) 10 S. E. 519.

Preliminary hearing.

6. Though, at the time of the commission of a
crime, Acts Va. 1885-86, p. 522, required that the
accused, when indicted, should be sent before a
justice for examination, vet as at the time of trial
and the preliminary proceedings Code Va. 1887,
$4003, omitting this requirement, provided that
on an indictment the court should issue a capias
against the accused, it was proper to follow the
Code, as the change in no way affected the vested
rights of the accused, but concerned only the
form of procedure. Jones v. Commonwealth,
(Va.) 10 S. E. 1005; Wilson v. Commonwealth,
Id. 1007.

8. Under Code Va. 1887, § 4016, providing that
a person to be tried for any felony for which he
might be punished with death may, on his arraign-
ment in the county court, demand to be tried in the
circuit court, it is a sufficient arraignment of the
prisoner, where he has been brought to the bar of
the court to answer the allegation contained in the
indictment, and the record so shows.-Stoneham v.
Commonwealth, (Va.) 10 S. E. 238.
Pleas.

9. A plea in abatement to an indictment which
avers that the prosecuting attorney, of his own mo-
tion, without authority of law, went into the room
where the grand jury were sitting, and, in their
whose testimony the indictment was found, and
presence, examined certain named witnesses, upon
talked in the presence of the grand jury about the
testimony of the witnesses, and thus unlawfully
conspired against defendant to have and procure
the grand jury to find the indictment, does not pre-
sent cause for abating the indictment, and was prop-
erly rejected.-State v. Baker, (W. Va.) 10 S. E. 639.

10. A plea to an indictment setting forth that a
third person, not the commonwealth's attorney or
an officer of the court, was sent before the grand
jury, during its deliberations, and that he assisted
in the examination of "other witnesses," is prop-
erly rejected, as it does not allege that the person
was not a witness, but inferentially that he was.-
Lawrence v. Commonwealth, (Va.) 10 S. E. 840.

11. A special plea, which is equivalent to the
general issue of "not guilty," may be rejected by
the court in a criminal case without error.-State
v. Evans, (W. Va.) 10 S. E. 792.
Former jeopardy.

12. The court should sustain a demurrer to a
plea of autrefois acquit, when the plea shows on
its face that the offense for which defendant was
formerly tried is separate and distinct from that
for which he stands indicted.-State v. Evans, (W.
Va.) 10 S. E. 792.

13. A conviction by a justice of the peace not
having jurisdiction of the offense is no bar to a sub-
sequent trial in a court which has jurisdiction.—
State v. Phillips, (N. C.) 10 S. E. 463.

17. A continuance on account of the absence of
defendant's witness is properly refused, where it
appears that he was residing either in Georgia or
Florida; that his attendance at the trial in Georgia
might have been procured by the exercise of dili-
gence, but that the only effort made by defendant's
attorney was to place a subpoena in the hands of
the sheriff; and that the facts intended to be estab-
lished by him might have been proved through
other witnesses.-Wiggins v. State, (Ga.) 10 S. E.
1089.

18. One under indictment should not be granted
a continuance on the ground that he was a juror
during the week, for which the case is called for
trial, where it is not shown that he is the less pre-
pared to go to trial than he would have been had
he not been a juror.-Johnson v. State, (Ga.) 10 S.

E. 207.

24. Code Ga. § 4648, provides that any person
against whom an indictment is found, for an of-
fense not affecting his life, may demand a trial at
the term when the indictment is found, or at the
next succeeding term thereafter, or at any subse-
quent term, and, if such person shall not be tried
at the term when the demand is made, or at the
next succeeding term thereafter, then he shall be
absolutely discharged. Defendant was indicted
for a misdemeanor, at the October term, 1887. At
trial, in accordance with the above provision. At
the April term, 1888, of said court, he demanded
found guilty. During said term, he obtained a
the October term, 1888, he was tried, and was
new trial. Nothing more was done until the April
term, 1889, when he moved the court to be dis-
charged, upon the ground that he was not tried at
the October term, 1888. Held, that the motion
was properly refused.-Silvey v. State, (Ga.) 10 S.
E. 591.

Conduct of trial.

25. The granting of an order that the jury leave
the room in charge of a duly sworn officer, until
defendant's counsel can explain to the court the
evidence he desires to elicit by a question objected
to, is discretionary with the court.-State v. Moore,
(N. C.) 10 S. E. 183.

Remarks of judge.

26. A remark of the judge, made before trial
begun, that the jailer had informed him the pris-
oner "would escape if he had the opportunity," is
not an expression of opinion, upon the facts pro-
hibited by Code N. C. § 413.-State v. Jacobs, (N.
C.) 10 S. E. 1031.

Reception of evidence.

court after the evidence has been taken, and the
27. Where a witness for defendant appears in
commonwealth has made its opening argument,
and defendant offers to prove facts by the witness
which would bar the prosecution, and shows that
the witness was prevented from attending at the
proper time by the death of his wife, it is error
v. Commonwealth, (Va.) 10 S. E. 713.
to refuse to receive the testimony.-Schonberger

20. Where a defendant indicted for murder
causes a subpoena to be issued for a witness living
within the jurisdiction of the court, but temporari-
ly in another state, by whom he expects to prove
that deceased fired the first shot, and was killed by
a person other than defendant, and makes affidavit
that the absence of said witness is without his pro-
curement or consent, and that he expects to pro-
cure his attendance at the next term, it is error to
refuse a continuance on a counter-showing that the
witness had said, when informed that a subpoena
would probably be out for him, that his testimony
would do defendant no good.-Pyburn v. State,
(Ga.) 10 S. E. 733.

21. Where a trial has been repeatedly continued
on motion of defendant, there is no error in refus-
ing his motion for a further continuance on the
ground that a witness was prevented from attend-
ing by the death of his wife; it appearing that he
had never been summoned, and that the motion
was not supported by affidavit to the materiality
and indispensability of the witness, though de-
fendant stated what he expected to prove by him.
-Schonberger v. Commonwealth, (Va.) 10 S. E. 713.
22. Where defendant shows that a material wit-
ness for him, who has been subpoenaed, is absent;
that he expects to have him present at the next
term; and that the motion is not made for delay
only, a continuance should be granted.-Andrews
v. State, (Ga.) 10 S. E. 503.

23. A continuance in a criminal case for absence
of a witness is within the discretion of the trial

Arguments of counsel.

29. It is not in the province of the court to in-
terpose because counsel draw illogical deductions
from the testimony.-Taylor v. State, (Ga.) 10 S.
E. 442.

Evidence.

30. The conduct of a prisoner, when arrested,
is competent to be shown in evidence.-State v.
Jacobs, (N. C.) 10 S. E. 1031.

31. Where it does not appear that a defendant
was sworn, or that he made any statement for rec-
ord on the preliminary hearing, parol evidence
may be given of a denial of the charge by him at
the preliminary hearing.-State v. Howard, (S. C.)
10 S. E. 831.

32. A sheriff, having a prisoner in his jail
charged with murder, requested him to deliver his
pantaloons to him, not informing him of the pur-
pose for which he desired them, which the prisoner
did without any objection. They were subjected
to investigation to discover the presence or absence
of blood spots on the pantaloons. The state, against
the prisoner's objection, introduced the pantaloons,
with evidence that such investigation revealed
blood spots on the pantaloons. Held no error.-
State v. Baker, (W. Va.) 10 S. E. 639.

33. The court did not err in admitting the an-
swer of defendant's witness, who of his own mo-
tion answered that he had served time in the
penitentiary, though defendant's counsel had ob-

there were other liens on it.-Reavis v. Orenshaw,
(N. C.) 10 S. E. 907.
Injuries to property.

2. In an action to recover for injuries to a
mule, evidence as to the expense of feeding and
doctoring the animal while it could not work is
admissible on the question of damages.-Central
R. Co. v. Warren, (Ga.) 10 S. E. 918.

3. Where plaintiff's cow was negligently killed
by defendant, and the only proof as to the value of
the carcass is that plaintiff received $1.50 for the
skin, an instruction that the measure of damages

was the value of the cow less $1.50, is correct.-
Godwin v. Wilmington & W. R. Co., (N. C.) 10 S.

E. 136.

4 Where, in an action for damages caused by
a fire set by a locomotive, plaintiff claims damages
for the destruction of 500 rails and about one mile
of board fence, some wood upon his land, and a lot
of growing timber, he will not be permitted to
prove general damages done to his farm, but he
will be confined to the specific items of damage
alleged in his complaint.-Stewart v. Baltimore &
O. R. Co., (W. Va.) 10 S. E. 26.

Personal injuries.

5. There is no fixed rule for estimating damages
resulting from permanent injury.-Georgia Pac. R.
Co. v. Freeman, (Ga.) 10 S. E. 277

6. Where there is evidence that plaintiff was
permanently injured, mortuary tables are admissi-
ble to show his expectancy of life.-Northeastern
R. Co. v. Chandler, (Ga.) 10 S. E. 586.

7. In an action for personal injuries, evidence
as to plaintiff's net earnings in his trade is ad-
missible. Wallace v. Western N. C. R. Co., (N. C.)

10 S. E. 552.

8. The court instructed the jury as follows:
"In this class of cases the plaintiff is entitled to
recover as damages one compensation for all in-
juries, past and prospective, in consequence of de-
fendant's wrongful or negligent acts. These are
understood to embrace indemnity for actual nurs-
ing and medical expenses and loss of time, or from
inability to perform ordinary labor, or capacity to
earn money. Plaintiff is to have a reasonable sat-
isfaction (if he is entitled to recover) for loss of
both bodily and mental powers, or for actual suf-
fering both of the body and mind, which are the
immediate and necessary consequences of the in-
jury. Held a proper charge.-Wallace v. West-
ern N. C. R. Co., (N. C.) 10 S. E. 552.

9. Though there was no allegation of mental
suffering, error cannot be predicated on a charge
that plaintiff, if entitled to recover, would be enti-
tled to compensation for mental and physical suf-
fering, where there was an allegation that he was
deformed by reason of the injury. -Central R. Co.
v. Lanier, (Ga.) 10 S. E. 279.

10. In an action for personal injuries, though it
is the duty of the judge to charge that plaintiff's
declining years and the apparent decrease of his
capacity to labor should be considered in estimat-
ing damages, a judgment will not be reversed for
the omission so to charge, if under the facts in the
case the jury could not rightfully have found a
smaller verdict.-City of Griffin v. Johnson, (Ga.)

10 S. E. 719.

11. In an action for personal injuries to a child
of nine years, where the damages found are ex-
treme, an instruction that the jury, in considering
the question of damages, may consider habits, av-
ocation, money made by labor, prospect of in-
creased earnings, prospect of obtaining steady and
remunerative employment, etc., is ground for a
new trial, there being no evidence on which to base
such an instruction. Western & A. R. Co. v.
Young, (Ga.) 10 S. E. 197.
Excessive.

12. Where plaintiff receives in his side, just
above the hip, a gaping wound, two inches long
and three or four inches deep, which causes him
great suffering for six years, and physicians say
that the injury is permanent, and his health de-
stroyed, a verdict for $9,000 does not show bias or
prejudice on the part of the jury.-Western & A.
R. Co. v. Lewis, (Ga.) 10 S. E. 736.

13. By a fall from a defective bridge plaintiff
had two of his front teeth knocked out; was in-
jured internally; had the ligaments of his ankle
fied was permanent; had his arm broken, and kept
joints lacerated, which injury the physicians testi-
in a sling for nearly a year; and at the time of the
trial, more than three years after, he still suffered
great pain in both his arm and his ankles. Before
his fall he earned from $600 to $700 a year. Held,
that a verdict for $1,500 was not excessive.-City of
Griffin v. Johnson, (Ga.) 10 S. E. $19.

personal injuries, a verdict of $2,000 in plaintiff's
14. In an action against a railroad company for
favor will not be set aside as excessive where it
appears that, before the accident, plaintiff, whose
business was farming, was a strong man, 24 years
old; that he could then make about $300 per year
that by the accident his arm was broken in two
places; that he suffered and still suffers in the
arm, breast, back, and kidneys; that he had not
been able to do any work for six months thereaft-
er; and that his capacity to work had been perma
nently reduced 50 or 75 per cent.-Northeastern R
Co. v. Chandler, (Ga.) 10 S. E. 586.
Punitive damages.

15. In order for the jury to assess punitive dam-
ages in an action for a tort, it is not necessary that
they shall be claimed co nomine in the declaration.
It is enough that the facts alleged and proved be
such as to warrant the assessment.-Savannah, F.
& W. Ry. Co. v. Holland, (Ga.) 10 S. E. 200.

DEATH BY WRONGFUL ACT.
Time of bringing action.

1. Code N. C. § 1498, provides that, where the
death of a person is caused by a wrongful act, 20
action for damages may be brought within one
year after such death by the executor, adminis-
trator, or collector of the decedent. Held, that
an action under the statute, brought more than a
year after the death of an intestate, is barred,
though no administrator was appointed during that
time.-Best v. Town of Kinston, (N. C.) 10 S. E.
997.

Parties.

2. Under the amendment of October 27, 1887,
to Code Ga. 1882, § 2971, relating to the recovery
of damages for homicide, extending the right to
recovery to a mother or father for the homicide of
a child on whom she or he is dependent, or who
contributes to his or her support, the child leaving
neither wife, husband, nor child, a mother cannot
recover for the homicide of a child who contribut-
ed to her support, without showing that she is de-
pendent on him.-Clay v. Central Railroad &
Banking Co., (Ga.) 10 S. E. 967.
Pleading.

3. Gen. St. S. C. § 2184, limits the parties for
whose benefit an action can be maintained for the
killing of a person, to the wife, husband, parent,
and children of the deceased. Held, that a com-
plaint which failed to show that deceased left sur-
viving him any persons bearing such relation,
though it alleged that "plaintiff and children'
Charlotte, C. & A. R. Co., (S. C.) 10 S. E. 932.
were dependent on him, was defective.-Lilly v.

4. In such case, plaintiff was properly refused
permission to amend at the trial by alleging that
she was the widow of deceased, and that she sued
for the benefit of herself and his children, espe-
cially where the time within which to bring such
action had elapsed, as it would have entirely
changed the nature of the action, contrary to the
provisions of Code S. C. § 194.-Lilly v. Char-
lotte, C. & A. R. Co., (S. C.) 10 S. E. 932.

5. Where, in an action by a mother against a
railroad company for causing the death of her
minor son, the declaration counts on the homicide,
and not on the loss of service, and there is no claim
of right in the mother to the son's service or to re-
cover hire for the same, the court properly refused
to allow the declaration to be amended, and dis-
missed the action.-Smith v. East & West R. Co.,
(Ga.) 10 S. E. 602.