An intent to commit a felonious act, where the intent is only a misdemeanor, merges in the felony, if the act be committed; but not if the intent alone is a felony of the same grade with the act itself; and the defendant may be convicted of either upon evidence of the particular offense charged. Jesse, 20 (3 D. & B.), 98.

Intent, in cases where it is material, is for the jury alone, and is never a question for the court. Deberry, 123-704.

Where the intent is essential it must be established beyond a reasonable doubt. Deberry, 123-704.

Where an outrageous act is committed the law presumes it was intentionally done. Evans, 2-282.

Intent is to be ascertained by conduct. Garner, 129-540.

It is no defense to an indictment for selling liquor that the defendant did not intend to do wrong. Piner, 141-760.

INTENTION.

An indictment charging an intention to do a criminal act without alleging any culpable act by which the intention is manifested can not be sustained. Penny, 1-130.

INTIMIDATING WITNESS OR JUROR.

Sec. 525 (3696). Jurors and witnesses, intimidating,

If any person shall by threats, menaces, or in any other manner, intimidate or attempt to intimidate any person who is summoned or acting as a juror or witness in any of the courts of this state, or prevent, deter, or attempt to prevent or deter any person summoned or acting as such juror or witness from attendance upon such court, he shall be guilty of a misdemeanor, and upon conviction shall be fined or imprisoned in the discretion of the

court.

1891, c. 87.

JUDGE'S CHARGE.

Sec. 526 (535). Judge to explain law; express no opinion on facts. No judge, in giving a charge to the petit jury, either in a civil or a criminal action, shall give an opinion whether a fact is fully or sufficiently proven, such matter being the true office and province of the jury; but he shall state in a plain and correct manner the evidence given in the case and declare and explain the law arising thereon.

Code, s. 413; C. C. P., s. 237; R. C., c. 31, s. 130; 1796, c. 452.

REFUSAL TO CHARGE THAT THE EVIDENCE IS NOT SUFFICIENT.-Where the evidence is not sufficient to prove the offense charged in the indictment, the refusal of the judge to so instruct the jury is good ground for exception. Massey, 86-658.

OPINION MUST BE PREJUDICIAL.-The statute only prohibits the trial judge from expressing an opinion upon those facts respecting which the parties take issue or dispute, and, in order to constitute a violation of the statute, remarks complained of must be shown to have been an expression of opinion on the facts and prejudicial to the party complaining of the same. Robertson, 121551.

COLLATERAL EVIDENCE.-The trial judge is not required to repeat to the jury collateral evidence. Caveness, 78-484.

COMPLIANCE WITH STATUTE.-The court is not required to give instructions in the very words asked when unobjectionable. A substantial compliance is sufficient. Booker, 123–713.

PROPER EXPRESSION.-A proper expression in charging the jury is, “if you find from the evidence," instead of "if you believe such a fact or facts." Barrett, 123-753.

STATING THE EVIDENCE AND DECLARING LAW.-A failure to "state in a plain and correct manner the evidence given in the case and declare and explain the law arising thereon," is not error when the court is not requested to do so, especially when the evidence is neither complicated nor peculiar in its bearings, and when the court expressly directs attention to the evidence in defendant's behalf. Distinguishing State v. Boyle, 104 N. C., 800. Pritchett, 106-667.

DECLARATIONS OF ONE PRISONER AGAINST ANOTHER.-A general charge that the jury should not consider any admission or declaration of one prisoner against the others on trial, unless they were present when made, is not a sufficient compliance with the law, which excludes evidence of the declarations of one of the prisoners as against the others unless they were made in the presence of the others. Oxendine, 107-783.

JURY NOT THE JUDGES OF THE LAW.-It is not error to refuse to tell the jury that they are the judges of the law as well as of the facts. Peace, 46 (1 Jones), 251.

GOOD CHARACTER IN PLAIN CASE. It is error to charge the jury that "in a plain case a good character would not help the prisoner, but in a doubtful case, he had a right to have it cast into the scales and weighed in his behalf;" the true rule being that in all cases a good character is to be considered. Henry, 50 (5 Jones), 65.

MAJORITY OF JURY YIELDING TO ONE.-It is not error for the court to refuse to charge that in case one of the jury had a doubt as to the guilt of the prisoner, the other jurors should yield to him. Bowman, 80-432.

CAUTION BEFORE ADJOURNMENT.-A failure of the judge to instruct the jury before a short adjournment pending the trial of a capital case that they should not discuss the case among themselves or with third parties during the recess, is not sufficient cause for a new trial where it does not appear that an improper verdict resulted from such omission, or that the jury were tampered with. Edwards, 79–648.

JURY NOT BOUND TO BELIEVE UNIMPEACHED WITNESS.-It is error to charge the jury they are bound to believe a witness unless he is impeached. Smallwood, 75-104.

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 testimony 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.

CASE RELIED ON BY DEFENSE.-A charge that a certain case relied on by the defense was the law in North Carolina, "but it was the extreme verge of the law," is no ground for a new trial. Harrison, 69-264.

SINGLING OUT WITNESSES.-While the court may not single out a witness or witnesses and charge the jury that they must find in a designated way if they believe such witnesses; yet, if the opposite state of facts and the law applicable thereto have been called to the attention of the jury, it may properly tell the jury that if they believe a certain state of facts as deposed to by certain witnesses, then the law applicable is so and so, for thus the attention of the jury is directed not to the credibility of the witnesses, but to a certain state of facts or hypothesis. Rollins, 113-722.

UNPREJUDICIAL INSTRUCTION.-The defendants can not complain of an erroneous instruction which was not prejudicial to them, but in their favor. Freeman, 122–1013.

NO EXPRESSION OF OPINION.-A charge that perjury is very much a matter of intent, and that as to that the jury must be satisfied beyond a reasonable doubt upon "all the facts and circumstances of the case deposed to by the witnesses" contains no expression of opinion by the judge. Journigan, 120-568. Where, on the trial of an indictment for seduction, the prosecutrix in reply to a question tearfully and energetically denied that she ever had carnal intercourse with any one but the defendant, and the crowd of bystanders laughed boisterously, and thereupon the trial judge, in attempting to quell the disturbance, remarked, “If I could discover the infernal fiends who laugh in such a manner, I would send them to jail for contempt," such remarks are not an expression of opinion on the facts involved in the prosecution. Robertson, 121-551.

READING NOTES WAIVED-EFFECT.-The consent of the defendant that the judge need not read over his notes of the testimony is not a waiver of his right to have the law applied to the facts in the case as the law requires. Groves, 121-563.

PRAYER CORRECT ONLY IN PART.—Where an instruction prayed for is correct in part and incorrect as an entirety, the court is not called upon to dissect it and give so much of it as is good. Neal, 120-613.

DEFENDANT GUILTY ON OWN EVIDENCE.-When justified by the evidence the judge may charge the jury that if they believe the testimony of the defendant who testifies in his own behalf, they should find him guilty. Woolard, 119-779.

GENERAL PRINCIPLES MUST BE STATED.-The rule that in the absence of a request no exception can be maintained for a failure to charge on any particu lar phase of the case does not exclude the duty of the court to instruct the jury as to the nature of the offense and the general principles of law essential to their verdict. Fulford, 124–798.

EXCEPTION WHEN MADE.-An exception for omission to charge must be made before verdict. Harris, 120-577.

CONSENT TO VERDICT OF MANSLAUGHTER OF ONE PRISONER-OPINION.— Where two are on trial for murder, the fact that the court permits the solicitor to consent to a verdict of manslaughter as to one, is no expression as to the grade of the other's offense. Pratt, 88-639.

HARMLESS REMARK.-Where the judge in charging the jury remarks that the prisoner is charged with a "dastardly crime," but it does not appear that the remark was made in a spirit or tone unfriendly or hostile to the prisoner, nor that it tended to prejudice him before the jury, an exception to the remark can not be sustained. McCarter, 98-637.

JURY NOT BOUND TO BELIEVE UNCONTRADICTED WITNESS.-It is error for the court in referring to a witness to charge that "If her character is of ordinary respectability, you will take her testimony to be true, unless she is fully and thoroughly contradicted." Parker, 66–624.

INSTRUCTIONS NEED NOT BE IN VERY WORDS ASKED.-The trial judge is not required to give a prayer for instructions in the very words in which it is asked, nor to give impertinent instructions, nor to recite the testimony of each witness in the order in which he was examined. Jones, 97-469.

GIVING PROMINENCE TO TESTIMONY OF ONE WITNESS.-Where the evidence is conflicting, it is erroneous to separate and give prominence to the testimony of one witness, who is in conflict with the others, but if the conflicting statements are put side by side, and the jury directed, as they might find the facts to be, to convict if they found the facts as testified to by one witness, but to acquit if they should find the contrary, but that all the evidence should be considered, and if not satisfied appellant fought willingly they should acquit, there is no error. Weathers, 98-685.

PREJUDICIAL REMARK CONCERNING DEFENDANT'S COUNSEL.-On disagreement of counsel as to the testimony of a witness, the court stated that both the counsel were wrong, but that he would so recapitulate the testimony that "it would be moral perjury for a juror to accept the statement of defendant's counsel:" Held, that such remark was an invasion of the province of the jury, and entitled the defendant to a new trial. Sykes, 80-618.

CHARGING ABSTRACT PROPOSITION OF LAW.-A charge in which the court deals in generalities and abstract propositions of law, merely reading "head notes" of reported cases, without making any application of them to the facts of the case, does not meet the requirements of the statute. Jones, 87-547.

EXPRESSION OF OPINION AS TO CREDIT OF WITNESS.-An instruction that from the testimony of the prosecutor, and from the nature of his testimony otherwise, it was not possible for him to be in error, is erroneous, since it takes from the jury the degree of credit to be given his testimony. Presley, 35 (13 Ired.), 494.

CHARGE MUST BE COMPLETE.-On the trial of defendant for perjury it appeared that on a former trial for forcible entry, defendant, who was then the prosecutor, swore that he was present and forbade the trespass. The evidence was that some of the trespassers had entered before defendant reached the place that others were in the act of entering, and that he was fifty or seventyfive yards distant when he forbade them, and that they persisted notwithstanding his forbidding: Held, that the fact that defendant was not on the very spot when he forbade the entry, and that the trespass had been commenced but not completed before the forbidding, were immaterial, and that a charge that defendant's guilt depended on the fact of his presence, without further instructions was not a compliance with the statute. Lawson, 98— 759.

EXPRESSION OF OPINION.-A remark of the judge, made before the trial began, that the jailer had said that the prisoner "would escape if he had the opportunity," is not an expression of opinion. Jacobs, 106-695.

TESTIMONY OF A DEFENDANT AFTER SEVERANCE.-Where there is a severance on the trial of defendants, and another party charged in the bill testifies in behalf of the accused, it is error, as indicating an opinion on the facts, to charge that the very fact that the witness is included in the same indictment will impair his testimony, and that his testimony should not be placed on the same plane or footing with that of a witness of undoubted character who is disinterested. Jenkins, 85-544.

REMARK AS TO WEIGHT OF INCOMPETENT EVIDENCE.-An erroneous remark of a judge upon the weight of evidence that ought not to have been admitted at all, is not ground for disturbing a verdict. Neville, 51 (6 Jones), 423.

EMPHASIS EQUIVALENT TO DENIAL THAT THERE IS EVIDENCE.-Where the judge in his charge asks with emphasis, and in an animated tone, Where is the evidence to establish a particular fact? it will be taken that he meant to deny that there was any such evidence. Simmons, 51 (6 Jones), 21.

CHARGE MUST BE TAKEN AS A WHOLE.-A charge to the jury must be considered as a whole in the same connected way in which it was given, and upon the presumption that the jury did not overlook any portion of it. If, when so construed, it presents the law fairly and correctly, it will afford no ground for reversing the judgment, though some of the expressions, when standing alone, might be regarded as erroneous. Exum, 138-602.

NATURE OF THE OFFENSE MUST BE GIVEN.-The rule that, in the absence of a special request, no exception for failure to charge as to any particular phase of the case will be considered does not apply where there is a failure to charge as to the nature of the offense and the general principles of law essential to a verdict. Fulford, 124-800.

ERROR NOT CURED.-Error in giving an instruction is not cured by subsequently stating the law correctly. Morgan, 136—628.

RECITALS NOT IN EVIDENCE-SPECIAL INSTRUCTIONS.-Special instructions containing recitals not found in the evidence should not be given. Davis, 134-633.

DIRECTION TO JURY NOT TO CONSIDER CASE UNTIL MORNING. A recommendation of the judge to the jury not to consider the case until next morning is not error. Davis, 134-633.

DEFENDANT'S EVIDENCE-TWO VIEWS OF.-Where defendant's own testimony, taken in one aspect, establishes his guilt, but taken in another aspect makes him not guilty, the case must be submitted to the jury. Green, 134-659.

SCRUTINY OF.-It is error to charge that the jury should carefully scrutinize the evidence of the defendant without adding that if the jury believe the evidence it should have the same weight as if the witness was not interested. Graham, 133–645.

IMPEACHING EVIDENCE-INSTRUCTION.—Where evidence is competent only as impeaching the trial judge should so instruct. Austin, 132–1037.

OPINION. An expression by the judge that a witness had fully explained for an hour to the jury and to the satisfaction of the court certain facts is erroneous. Davis, 136-568.

For the judge to say of a female witness for defendant, after delivering a high eulogium upon her personal appearance, "that for himself he could but lament that she had not received a religious education, so as to have made her an ornament to her sex, instead of the humble individual she appeared before them," is not such an expression of opinion as entitles the defendant to a new trial. Harris, 46-193.

The judge, in charging the jury, after summing up the evidence for the state, stated that those were the facts upon which the state relied for a verdict: Held, that the use of the word "facts" was not in violation of the statute forbidding the judge to express an opinion, Jones, 67-285.

Where defendant asked that the court instruct the jury that there was no evidence that the offense was committed inside the corporate limits of a town, and the court, on reaching evidence of that fact in rehearing the testimony, tells the jury that there is evidence that the offense was committed in the town and that he will call their attention to other evidence of it shortly, this is not an expression of opinion. Edwards, 126–1053.

INSTRUCTIONS NOT IN WORDS ASKED.-A judge is not required to give instructions in the very words in which they are requested. Mehaffey, 132—