WHEN OBJECTION TO SUFFICIENCY OF EVIDENCE MADE.-An objection to the sufficiency of the evidence to warrant a verdict must be made in proper manner before verdict, though the court in its discretion may grant a new trial if it has reason to believe injustice has been done, but from its refusal to do so there is no appeal. Bradley, 104–737.

FACTS SHOWING IMPROPER CONDUCT OF JURORS MUST BE SET OUT.—Where a motion is made to set aside a verdict on the ground of improper conduct in the jurors, the facts must be ascertained by the court below and spread on the record; the supreme court will not look into affidavits filed in support of the motion. Godwin, 27 (5 Ired.), 401.

VERDICT RENDERED ON SUNDAY.—A verdict rendered on Sunday is not invalid. Penley, 107-808.

CONFESSION OF ANOTHER'S GUILT.-Where two persons are jointly indicted for larceny, one of them may introduce witnesses to prove the confessions of the other that he alone is guilty. Brite, 73–26.

SPECIAL VERDICT.-The court must instruct the jury to render a verdict of guilty or not guilty according to the view entertained of the law applicable to the facts found, and then pronounce judgment. Nies, 107-820.

The fact that the jury specially found the facts and submitted them to the court for an opinion as to whether they should acquit or convict, and the court being of opinion that the defendants were not guilty thereon, so adjudged and directed a verdict of not guilty to be entered, does not constitute a general verdict of not guilty, but amounts to a special verdict, and from the judgment thereon the state can appeal. Ewing, 108—755.

Where a special verdict is taken the court should simply declare its opinion that the defendant is guilty or not guilty, and enter judgment accordingly; or the simple entry of judgment in favor of or against the defendant is sufficient. Ewing, 108-760.

RE-EXAMINATION OF WITNESS.-Upon disagreement of counsel as to facts testified to by a witness, it is not error in the court to have the witness re-examined. Boon, 82-637.

The judge, in his discretion, may permit a witness to be recalled after the party has rested his case, or even after all the evidence has closed. Groves, 119-822.

VERDICT OF ACQUITTAL THROUGH FRAUD.-A verdict of acquittal on an indictment for a misdemeanor procured by the trick or fraud of the defendant is a nullity, and the defendant can again be put on trial for the same offense. Swepson, 79-632.

EFFECT OF CERTIORARI WHERE DEFENDANT IS ILLEGALLY SENTENCED-PRACTICE. The granting of a writ of certiorari to bring up a case in which an illegal sentence has been pronounced against a defendant does not entitle him to his discharge on the ground that the effect of the certiorari is to give him a new trial, and no person can be put twice in jeopardy of life or limb; but the practice in this state is to send the case back for such judgment as the law allows. Lawrence, 81–522.

HABEAS CORPUS AD SUBJICIENDUM.-Where a prisoner is in the penitentiary under an illegal sentence and his case is brought to the supreme court by certiorari, or otherwise, and the judgment corrected, the prisoner may be brought before the proper court below upon a writ of habeas corpus ad subjiciendum to the end that the proper judgment may be pronounced upon him according to law. Lawrence, 81-522.

REFUSAL OF WITNESS TO ANSWER DISPARAGING QUESTIONS.-Where the trial judge refuses to compel a witness to answer questions which tend to disparage or disgrace the witness, it being apparent that such questions are asked merely for the purpose of annoying and harrassing him, the refusal of the witness to answer such questions is a legitimate subject of comment before the jury. Gay, 94-814.

WHEN DEFENDANT MAY BE AGAIN TRIED AFTER VERDICT OF ACQUITTAL.Where a defendant indicted for a misdemeanor procures a verdict of acquittal by a trick or fraud, the verdict is a nullity, and he may be again put on trial for the same offense. Swepson, 79-632.

PUNISHMENT OF ONE, THOUGH OTHERS NOT TAKEN.-Where, on indictment for a riot, one of several defendants is convicted, he may be punished though the others are not yet taken, for though the others may be acquitted, yet he is estopped by the verdict to deny his guilt. Pugh, 3 (2 Hay.), 55 (218). REFUSING COMPENSATION TO WITNESS.-The action of the court in refusing to allow any compensation to witnesses is not reviewable. Massey, 104–877. DISCHARGE OF JURY BEFORE VERDICT.-In misdemeanors and in all felonies not capital, the presiding judge has the discretion to discharge a jury before verdict without the consent of the accused, and it is not necessary for him to find facts constituting the necessity for such discharge. Bass, 82-570.

CIRCUMSTANTIAL EVIDENCE.-Where the evidence is circumstantial, the accused is not entitled to a charge that it must be as conclusive as if an eyewitness had testified to the fact. Allen, 103–433.

DIRECTING THE VERDICT.--After the conclusion of the evidence in a trial for murder, the judge asked the counsel for the prisoner what they had to say, to which counsel replied, "We shall take the ground that it was self-defense." The judge answered, "It is manslaughter in any phase, with many elements of murder. I shall tell the jury to return a verdict of manslaughster"; and he so directed, and the verdict was recorded: Held, that such a charge was erroneous. The evidence must be submitted to the jury for them to say whether they believe or disbelieve it, even in a clear case of guilt. Dixon, 75-275.

Where there is no conflict of testimony and no alternative aspects of it to be submitted, it is not error for the judge to tell the jury that if they believe the evidence the prisoner is guilty of manslaughter. Distinguishing State v. Dixon, 75-275. Vines, 93-493.

THE COURT MAY SET A VERDICT OF GUILTY ASIDE. The court has the power to set aside a verdict of guilty when it is against the weight of evidence, or when there is no evidence. Atkinson, 93-519.

If the evidence produced is so slight and inconclusive as that, in no view of it, ought the jury reasonably to find a verdict of guilty, then there is no evidence which should be submitted to them. Ib.

WHERE NO EXCEPTION TO THE ADMISSION OF INCOMPETENT EVIDENCE NECESSARY.-Where certain evidence is made incompetent by statute, no exception to the admission of such evidence is necessary on the trial, but its admission is assignable for error though no objection was made; it is the duty of the judge, on his own motion, to disallow the evidence. Ballard, 79-627.

MISTAKE IN MAKING INDICTMENT "A TRUE BILL," How SHOWN.-If a bill of indictment be endorsed "a true bill" by mistake, when the grand jury had directed their clerk to endorse it "not a true bill," the defendant may show that fact by affidavit or otherwise, either upon a motion to quash or plea in abatement, and thereupon the indictment shall be quashed. Horton, 63-595.

VERDICT OF GUILTY CAN NOT BE SET ASIDE.-The court can not set aside a verdict of guilty and direct a judgment of acquittal, but must either pronounce judgment on the verdict as returned or grant a new trial. Curtis, 28 (6 Ired.), 247.

VERDICT MAY BE CORRECTED.-Where, on the rendition of a verdict, and before it is recorded, it is seen that there was a mistake and misapprehension of the jury, it is proper for the court to explain to them their duties in regard to their verdict, and have them to return to correct it. Shelly, 98-673

RES ADJUDICATA.-Where, upon a mistrial, the defendant moves for his discharge, which motion is refused, and he is required to give bail for his appearance at the next term, the judge presiding at next term has no right to entertain the motion and discharge the defendant. It is res adjudicata. Evans, 75-324.

WHEN OPINION CERTIFIED.-The supreme court may direct an opinion to be certified down in advance of the statutory time. Herndon, 107-934.

ORDER MADE AFTER EXPIRATION OF TERM.-A judge has no power to make any order in a criminal action after the expiration of the term. 81-566.

Alphin.

SENTENCE, WHEN IT TAKES EFFECT.-One who is sentenced to imprisonment for two months "from and after the first day of November next,” may, after the expiration of that time and at a subsequent term of the court, the sentence not having been complied with, be ordered to prison for two months from that time, since the time when a sentence shall be carried into execution forms no part of the judgment of the court. Cockerham, 24 (2 Ired.), 204.

GENERAL VERDICT WHEN ERROR AS TO ONE COUNT.-Where there are two counts and a general verdict of guilty, the judgment will be sustained even though there was error in the instructions as to one, provided the other was unexceptionable. Robbins, 123–730.

COMMITMENT OF DEFENDANT.-An order that a defendant be placed in custody of the sheriff until the fine and costs are paid is a commitment until the fine and costs are paid, or, with the sanction of the court, secured. Burton, 113–655.

AGAINST WEIGHT.-Where there is some evidence to support the verdict, if the jury decide contrary to its weight, the remedy of the defendant is an application to the judge to set the verdict aside. Martin, 141-832.

TRIAL WITH ANOTHER. In an indictment for a misdemeanor there is no error prejudicial to the defendant, by reason of the fact that a person against whom the grand jury returned "not a true bill" was nevertheless put on trial with the defendant. Martin, 141-832.

INDICTMENT Tried at Term FOUND.—An indictment found at a special term may be tried during that term. Register, 133–746.

There is no rule of law or practice that where a bill of indictment is found at one term the trial can not be had until the next. Whether the case should be tried at that term or go over to the next term is a matter necessarily in the discretion of the trial judge, and not reviewable, certainly in the absence of gross abuse. Sultan, 142-569.

There was no abuse of discretion in refusing a continuance because the defendant was put on trial in four hours after an indictment for illegal sale of liquor was returned, where the defendant had been arrested six months before on the same charge and had paid the prosecuting witness to leave the state, and the offense was committed in the town in which the court was held, and it does not appear that any material witness was absent nor that the defendant was prejudiced, and the trial closed two days after the bill was found, and he was represented by the same counsel who represented him before the magistrate, and three other counsel. Sultan, 142–569.

DEMONSTRATION BY CROWD.-Where, on the trial of a person for murder, during the closing argument for the prisoner, about one hundred persons leave the court-room and an alarm of fire is given, the trial judge finding as a fact that these demonstrations were made for the purpose of breaking the force of the argument of counsel, a new trial will be awarded. Wilcox, 131-707.

DEMURRER WAIVED BY SUPPLYING EVIDENCE.-Where defendant demurs to the evidence, and afterwards introduces testimony which supplies a defect in the evidence, his right to assign the overruling of the demurrer as error is waived. Hogan, 131-802.

JURY VIEWING GUN.-The fact

that the jury had in full view the gun with which the killing was alleged to have been done, and the court docket, is not error, in the absence of a finding by the court that the prisoner was prejudiced thereby. Dixon, 131-809.

APPEAL DISMISSED ON ESCAPE.-In a capital case, if a prisoner escape, the court may in its discretion either dismiss the appeal or determine or continue the case. Dixon, 131-809.

PRAYER FOR JUDGMENT NOT NECESSARY.-Prayer for judgment is purely a formal matter, and the judge can pass sentence without it. Conley, 130–683. INCOMPETENT EVIDENCE WITHDRAWN.-The admission of improper evidence may be corrected by withdrawing it from the jury. Flemming, 130-688.

PLEA OF GUILTY TO VOID WARRANT.-Where there is a plea of guilty before a justice of the peace under a warrant charging no offense, and on appeal the warrant is amended in the superior court, it is error to refuse to allow the defendant to change his plea to not guilty. Howie, 130–677.

A plea of guilty confesses guilt in manner and form charged in the indictment, and if the bill charges no offense a motion in arrest of judgment will still lie. Howie, 130-679.

VERDICT AGAINST EVIDENCE.-Refusal to set aside a verdict as contrary to or against the weight of the evidence is not reviewable. Maultsby, 130–664. RECALLING WITNESS.--Whether a witness shall be recalled and re-examined after the close of the evidence is a matter of discretion of the judge. Weaver, 35 (3 Ired.), 491.

SUBMISSION AS TO ONE COUNT.-Where there are several counts and the court has no jurisdiction as to one, a submission should not be made as to one good count without first entering a nol. pros. as to the other counts. Roberts, 2 (1 Hay.), 176.

EVIDENCE OF STATE IN REPLY.-After the defendant has introduced his evidence the state is restricted to evidence in reply by way of rebuttal and to strengthen and support that offered at first, though either party may intro duce new evidence at any time in the discretion of the court. Lemon, 92-792. AMENDMENT OF RECORD.-Where the record in the trial of an action on an appearance bond did not show that a judgment nisi had been entered against the principal in the superior court, it was not error for the court, on ascertaining that such judgment had been taken, to require the record to be amended so as to show that fact. Jenkins, 121-637.

Where defendant, who was under bond to appear before a justice of the peace, failed to appear, and the justice caused him to be called and entered the default on the docket, but failed to enter it on the bond as required by chapter 133, laws of 1889, it was not error, in the trial of an action on the bond, for the court to require the justice, who was present, to make the proper entry on the bond of defendant's default, such direction being merely for the purpose of perfecting the record. Jenkins, 121-637.

ERROR MUST BE POINTED OUT.-An exception to the whole charge that it presented the case in a manner to prejudice the defendant should have pointed out in what particular harm was done. Varner, 115—744.

An assignment of error that the court refused to charge as requested will not be considered where the record does not show that any instructions were asked. Hart, 116-976.

TRIAL BY JURY.

JURY TRIAL CAN NOT BE WAIVED.-A jury trial can not be waived in a criminal action, and where the facts are agreed upon by the state and the accused and submitted to the judge for his decision, there is no conviction, though the judge finds defendant guilty on the facts. Holt, 90-749.

A trial by jury in a criminal action can not be waived by the accused and the court allowed to find the facts. Such action is in violation of Const. N. C., art 1, sec. 13, which provides that "no person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court." Stewart, 89-563.

WHEN JURY REQUIRED.-When the determination of the question as to whether there is a variance depends upon an issue of fact, it must be passed on by the jury, with instructions from the court as to the law. Green, 100-419.

CASE AGREED.-The court has no right to hear and decide a criminal action upon a statement of facts agreed upon by the state and the accused and submitted to the judge for his decision, such statement not being submitted in the shape of a special verdict. Holt, 90-749.

MUST BE TWELVE JURORS-NO WAIVER.-A less number than twelve is not a lawful jury, and a trial by jury in a criminal action can not be waived by the accused. Scruggs, 115–805.

Where, after empaneling the jury and the beginning of the testimony, a juror became too ill to continue as such, and the defendant offered to proceed with eleven men, or to select another juror either from the special venire, which had not been exhausted but had been discharged, or from the bystanders, and the solicitor declined all the suggestions, it was the duty of the judge to direct a mistrial and hold the prisoner. Scruggs, 115–805.

TRIAL BY JURY-CONSTITUTION.-The guaranty of a trial by jury in the sixth and seventh amendments to the constitution of the United States applies only to the federal courts, and is not a restriction on the states, which may provide for the trial of criminal and civil cases in their own courts, with or without jury, as authorized by the state constitution. Whitaker, 114-818.

Under article 1, section 13, of the constitution of this state the legislature may provide for the trial of petty misdemeanors in inferior courts without a jury, provided the right of appeal is preserved. Whitaker, 114-819.

Under article 1, section 13 of the constitution, indictment by grand jury is dispensed with in petty misdemeanors. Lytle, 138–738.

The constitutional guaranty of a trial by jury is met by the right of appeal. Lytle, 138-738.

If a defendant desires a special instruction upon a particular feature of the case, he must ask for it. Martin, 141, 832.

QUAERE. Whether the principle that on indictments originating in the superior court trials by jury can not be waived by the accused, applies to appeals in criminal actions of which justices of the peace have final jurisdietion. Wells, 142-591.

TRUSTS AND MONOPOLIES.

Sec. 1045 (3739). Trusts and monopolies.

If any person in any way violate any of the provisions of the law against trusts and monopolies, he shall be guilty of a misdemeanor and shall be fined or imprisoned, or both, in the discretion of the court, and each day such violation exists after conviction and final judgment in the first trial, shall constitute a separate offense.

1901, c. 586, s. 12.