A witness may give his opinion as to whether certain tracks were made by the defendant just as he may testify to handwriting. Reitz, 83–636.

A statement by a witness that it was light enough for the prisoner to have seen the deceased and to have known who he was, is not inadmissible as an expression of an opinion by the witness. McDowell, 129–524.

The bare opinion of a witness as to the identity of tracks should have no weight with the jury, but when reasons for the opinion are given it is for the jury to say whether the grounds of the opinion are reasonable and satisfactory. Reitz, 83-636.

A witness called to impeach another can not give his conclusions merely that former statements made by the witness impeached were inconsistent and contradictory. Wright, 75-441.

28. GRAND JUROR AS WITNESS.

GRAND JUROR AS A WITNESS ON THE TRIAL.-A grand juror, on the trial of an indictment, may be compelled to disclose what was given in evidence by a witness before the grand jury. Broughton, 29 (7 Ired.), 96.

The fact that a witness was foreman of the grand jury which found the bill does not render him incompetent to testify, especially when he did not vote for the bill. McDonald, 73-346.

29. IDENTITY OF ACCUSED.

A witness may properly be asked to look around the room and point out the person who committed the offense. This is not making the defendant give evidence against himself. Johnson, 67–55.

Where therein more than a scintilla of evidence as to the identity of defendant it must be left to the jury. Costner, 127–566.

30. INSUFFICIENT EVIDENCE.

The granting or refusing a new trial is not reviewable, whether the motion is made because the verdict is against the weight of the evidence, or that the evidence was insufficient to convict. Kiger, 115-746.

Where there is no evidence sufficient to go to the jury the judge may withdraw the case from the jury, but if the evidence is merely weak, and such as would not induce the judge, if a juror, to convict, he has no authority to withdraw the case. Kiger, 115-746.

An objection that there was no evidence sufficient to go to the jury can not to be taken for the first time in the supreme court. Kiger, 115-746. It is too late after verdict to raise the point that there was no evidence to go to the jury sufficient to convict. Kiger, 115–746.

Where there is an assignment of error that the evidence did not justify the verdict the supreme court will consider only the evidence offered by the state. Hart, 116-976.

It is only where the evidence, in no aspect of it, would reasonably warrant the jury in drawing their inference that the defendant is guilty that the trial judge should withdraw the case from the consideration of the jury. Green, 117-695.

Exceptions to the sufficiency of the evidence must be taken before verdict. Furr, 121-606.

Whether the evidence is such as to justify the jury in rendering a verdict is a preliminary question for the supreme court on appeal. Satterfield, 121– 558.

NEED NOT GIVE REASON FOR OBJECTION TO EVIDENCE.-Counsel for the prisoner is not bound to tell the solicitor his reasons for objecting to the introduction of the testimony, to-wit, that there was no proof that the examination had not been reduced to writing, and may make that objection in the supreme court. Parish, 44 (Bus.), 239.

31. JUDGMENT OF COURT OF ANOTHER STATE.

A certified judgment of a court of another state unaccompanied by the whole record is not in compliance with the act of congress (The Rev., vol. 1, page 631), and is inadmissible. Missenheimer, 123-758.

32. LAWS OF OTHER STATES AND COUNTRIES.

The existence of a foreign law is a question for the jury, but that fact being ascertained its construction and effect are, questions for the court. Jackson, 13 (2 Dev.), 563.

A person who claims to know the provisions of the common or unwritten law of a foreign country may, under section 1338 of The Code, testify to and explain them. Behrman, 114-797.

The existence of a foreign law is a question for the jury, but that fact being established, its construction and effect are questions for the court. Jackson, 13 (2 Dev.), 564.

The certificate of the secretary of state in relation to the statutes of another state is evidence in criminal as well as civil cases. Patterson, 24 (2 Ired.), 346.

The printed statute book of another state is not evidence to show what the law of that state is; it can only be shown by a copy authenticated by the seal of the state which enacted it. Twitty, 9 (2 Hawks), 441.

33. MAP.

A witness may use a map or drawing to demonstrate the relative positions places involved in the evidence given by him. Wilcox, 132-1120.

34. MENTAL OR BODILY FEELINGS.

Defendant was indicted for stealing a mare which was found in another state in the possession of B, who testified that he obtained the mare from defendant. Defendant denied that the mare he traded to B was the property of the prosecutor, and the state, as tending to establish the identity of the mare, was allowed to prove, under objection, that the owner's son exclaimed on finding the mare, "That's father's mare!" Held, that such exclamation was inadmissible. It is only when the bodily or mental feelings or conditions of an individual are material to be proved that the usual expressions of such feelings are admissible. Distinguishing State v. Harris, 63 N. C., 1. Hargrave,

97-457.

35. NOTICE TO PRODUCE PAPERS.

Four days' notice to a prisoner in close custody to produce a paper traced to his possession, his residence being only about four miles distant, is sufficient to authorize the admission of secondary proof. Hester, 47 (2 Jones), 83. The object of a notice to produce papers is not to compel the production of such papers, but to enable the defendant, by having them ready, to protect himself against the possible falsity of secondary evidence. The court has no right to compel a defendant to produce papers. Hester, 47 (2 Jnnes), 83. Where defendant, after notice to produce papers, objects to their production, the state has a right to prove their contents by secondary evidence. The rule that no man is bound to criminate himself only protects the accused in the possession of the originals. Kimbrough, 13 (2 Dev.), 431.

36. PAROL EVIDENCE.

The general rule is that where an agreement is reduced to writing and intended by the parties to contain and be evidence of such agreement, or whenever there exists a written document, which by the policy of the law is considered to contain the evidence of certain facts, such instrument is regarded and treated as the best evidence of the agreement or facts recorded; and unless it be in the possession of the opposite party, and notice be given him to produce it, or unless it be proved to be lost or destroyed, secondary evidence of its contents is not admissible. Credle, 91-640.

A paper-writing containing matter purely collateral to the issue, which recites no agreement and does not purport to be evidence of any contract, and which defendant did not sign, but which is simply a loose, casual paper intended to serve only a temporary purpose, may be proved by parol, without notice and without proving its loss or destruction. Credle, 91—640.

The rule which requires the production of written instruments to prove their contents does not apply to cases where the writing comes up on a collateral inquiry and a party is not expected to be prepared to produce it. Wilkerson, 98-696.

A notice forbidding all persons trading for or buying the prosecutor's cattlei s purely collateral to the issue on indictment for injury to the cattle, and its contents may be shown by parol. Credle, 91-640.

On indictment for false pretense in obtaining a written order from county commissioners for the support of a pauper, when in fact such pauper was dead, the contents of such order may be proved by parol, the essence of the charge being the fraudulent practices and pretenses and the order itself being collateral. Wilkerson, 98-696.

On indictment for seduction parol evidence of the contents of a note written by the prosecutrix appointing an assignation with a third person is competent for the purpose of attacking the character of the prosecutrix, since the contents of the note are purely collateral. Ferguson, 107-841.

Where the book of records of a board of township trustees is shown to have been destroyed, the making of an order discontinuing a certain road can be proved by one of the trustees. Durham, 121-546.

Before parol evidence of a prisoner's confessions made before the committing magistrate can be admitted, it must appear that the magistrate did not take the examination in writing, or that the same is lose. Parish, 44 (Busb.), 239.

Where parol evidence of a prisoner's confessions before the committing magistrate is objected to in general terms, and the solicitor, supposing the ground of objection to be that they were not voluntary, proceeds to remove that objection, and the confessions are received, the prisoner is not precluded from insisting in the supreme court that there was no evidence that the prisoner's examination was not reduced to writing, or that the same was lost. Parish, 44 (Bush), 239.

The written notice given by a road-overseer warning a hand to work the road need not be produced on the trial of an indictment for failure to work according to the notice, since the original is left with the defendant, and besides the issue is not as to the contents of the notice, but the collateral fact that it has been served. Sharp, 125-631.

37. PRIMA FACIE EVIDENCE.

Prima facie evidence is that which is received or continues until the contrary is shown. Mitchell, 119-784.

The term prima facie is synomymous with the word "presumptive." Mitchell, 119-784.

The legislature has the power to change the rules of evidence, and to declare that certain facts when shown to exist shall constitute prima facie evidence of guilt. Barrett, 138-630.

It is competent for the legislature, in the exercise of the police power, to prescribe when and under what circumstances and as to what offenses a certain act shall be prima facie evidence. McGinnis, 138-724.

38. RECORDS.

The contents of a public record may be proved in any court by the original record itself. The rule allowing a properly certified copy of such record to be admitted in evidence is grounded on the inconvenience of obtaining the original. Voight, 90—741.

RECORD OF CASE, HOW PROVED.-The original record of a case in another court is competent when present, though the proper mode of proving it is by a duly authenticated copy under the seal of the court. Hunter, 94-829. RECORDS OF GOVERNMENT.-A pamphlet purporting to contain the regula tions of the United States Department of Agriculture, which was not certified by any officer of the department and had no seal attached and did not purport to have been issued or published by authority of the department, was not properly authenticated, nor otherwise competent, for admission as testimony. Railroad, 141-847.

The regulations of the state board of agriculture, certified under the hand of the secretary with the seal of the department, are properly proved, as provided by Revisal, sections 1616-7. Railroad, 141-847.

FOREIGN CORPORATION.-Where it is sought to show the existence of a foreign corporation a certified copy of an act of such other state reciting the title of another act creating the corporation is not sufficient. Welsh, 10 (3 Hawks), 404.

ORIGINAL.-When the original record is offered in evidence in the court to which it belongs it should be received, but in another court the proper mode of proving it is by a duly authenticated copy, under seal of the court. Yet the original, when present, is admissible if otherwise competent.

94-829.

39. REFRESHING MEMORY.

Hunter,

REFRESHING MEMORY.-A witness may refresh his memory by looking at a book of entries kept by himself without producing the book on trial. Cheek, 35 13 Ired.), 114.

40. RELATIONS.

While the rule is that the law looks with suspicion upon the evidence of elose relations and interested parties, and it must be received with some degree of allowance, yet the rule does not reject or necessarily impeach it, and if, from the testimony, or from it and the other facts and circumstances in the case, the jury believe that such witnesses have sworn the truth, then they are entitled to as full credit as any other witness. Lee, 121-544. TESTIMONY OF RELATIONS REGARDED WITH SUSPICION.-It is not error to instruct the jury that the law regards with suspicion the testimony of near relations when testifying for each other. Nash, 30 (8 Ired.), 35.

The credit of a witness related to the party for whom he testifies is thereby affected, and his evidence must be received with some degree of allowance. Boon, 82-637.

Where a wife testifies for her defendant husband it is error to instruct the jury that they should scrutinize her testimony carefully and receive it with grains of allowance, without adding that if the jury believed the testimony It was entitled to full credit, notwithstanding the relationship. Collins, 118-1203.

41. RES GESTAE.

To constitute res gesta there must be an act which may be explained by contemporaneous declarations. Anderson, 92-732.

Declarations of a prisoner made to the officer on being arrested for the alleged offense are not admissible as a part of the res gesta. McNair, 93—

628.

A statement by one of two defendants to the deceased and his companion, "We will whip you in a minute," made at the time of the attack and while the two defendants were together and both were running down the road toward the deceased and his companion with the evident purpose and design of making an attack on them, was competent, as a part of the res gestæ and as evidence of the common purpose on the part of both to attack the deceased and his companion. Jarrell, 141-722.

On indictment for forcible trespass what the defendant said on his way to the prosecutor's house is not part of the res gesta. Williford, 91-529. What the prisoner said to a witness on the day of the night of the homicide, giving the reasons why he had gone to the house of the deceased that morning, is not admissible in evidence. Howard, 82-627.

To constitute res gesta there must be a thing done; some act which may be explained by declarations made while the thing or act is being done. Anderson, 92-752.

What the defendant said when he showed cotton alleged to have been stolen to the person who claimed it and charged that it had been stolen, is a part of the res gesta and admissible in evidence. Worthington, 64–595.

Declarations in the immediate presence of the prisoner, at the instant the fatal blow is given, charging him with having given it, are competent as part of the res gesta. McCurry, 128-594.

42. SPIES.

It is proper to charge the jury that the testimony of a spy should be scrutinized; but that, after doing so, if they believe his testimony to be true, his motive is not to be considered. Black, 121-578.

43. STATUS OF DEFENDANT.

A status, as age, marriage, and the like, is a defense in the nature of a confession and avoidance which must be shown by the defendant. Blackley, 138-622.

44. THREATS.

Evidence of threats made in January, February and July prior to the homicide in September is competent. Exum, 138–599.

Evidence that some time before the deceased was killed a third party went in the direction of the house of the deceased threatening to kill him with a deadly weapon, is inadmissible. Davis, 77-483.

Evidence that a third party had malice toward deceased and had threatened to kill him, is inadmissible. Davis, 77-483.

Threats not connected with the deceased are incompetent. Lambert, 93— 618 Barfield, 29–299.

Threats made in a thoughtless, bragging manner should not receive too much attention from the jury, but they should be received and submitted under proper instructions. Horn, 116-1037.

Evidence of threats is inadmissible in an affray. Harrell, 107-944.