the witness; testimony on cross-examination in reference to an official survey of the state line did not justify the court in ignoring his positive statement. Barrington, 141–820.

The fact that an offense charged was committed in another state is available under the plea of not guilty, and such fact being a matter of defense, the burden of proving it is on the defendant. Barrington, 141–820.

Where the contract by which defendant came into possession of property was made in one county, and he was to return it to the prosecutor in that county, or to account and pay over the proceeds to the prosecutor in that county, he may be indicted for embezzlement of the property, or its proceeds, in such county, though the property or its proceeds was embezzled by defendant in another county. Carter, 126-1013.

The presumption is in favor of the county charged, but may be rebutted by plea and evidence. Carter, 126—1011.

VERDICT.

VERDICT DIRECTED BY THE COURT.-On a trial for murder the judge, at the close of the evidence, asked counsel for the prisoner what they had to say, to which the counsel replied, "We shall take the ground that it was in selfdefense." The judge answered, "It is manslaughter in any phase, with many elements of murder. I shall tell the jury to return a verdict of manslaughter"; 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 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 trial 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 evidence for the state was uncontradicted, and the court instructed the jury that if they believed the evidence to return a verdict of guilty; and after pausing a moment or two, and the jury manifesting no disposition to retire, the court directed the clerk to enter the verdict of guilty: Held, that while it was not necessary that the jury should retire, yet it was indispensable that they should agree and render the verdict. Riley, 113–648.

The judge can not direct a verdict on the testimony, for the jury must pass upon the credibility of the testimony offered. Winchester, 113–641.

SPECIAL VERDICT.-Where a special verdict is rendered, 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 would be sufficient. Following State v. Moore, 29 (7 Ired.), 228. Ewing, 108-755.

A special verdict is in itself a verdict of guilty or not guilty, as the facts found in it do or do not constitute in law the offense charged; and there is nothing to do on it but to write a judgment thereon for or against the accused. Moore, 29 (7 Ired.), 228.

Upon the finding of fact as returned, the court should instruct the jury to render a verdict of guilty or not guilty, according to the view he entertains of the law applicable to such state of facts. To assume to pass judgment without directing a verdict to be entered up in accordance with its opinion on the law is error. Neis, 107-820.

A formal verdict in accordance with the opinion of the court must be entered upon a special verdict before judgment can be pronounced. Morris, 104-837.

A jury trial can not be waived in a criminal action and the court allowed to find the facts and declare the law by consent. Such action is in violation of the constitution and in subversion of a fundamental principle of the common law. Stewart, 89-563.

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, will not warrant a judgment thereon. "No person shall be convicted of any crime but by the unanimous verdict of a jury." Const. N. C., art. 1, sec. 13. Holt, 90-749.

Where the jury return a special verdict finding all the facts necessary to constitute the offense charged, the fact that the court, upon the special findings of fact, adjudges the defendant not guilty and orders "a verdict of not guilty to be entered," does not deprive the state of an appeal, as where a verdict of not guilty is returned by the jury. The entry of the verdict of "not guilty" is not the verdict of the jury, and such order of the court is unnecessary. Ewing, 108-755.

A judgment on a special verdict leaves the matter distinctly open to review in a higher court, and the reason for allowing such verdicts in criminal cases is to give the state, as well as the prisoner, the right to have the question of law solemnly decided. Moore, 29 (7 Ired.), 228.

A special verdict in which, after setting out the facts, the jury say: “If upon these facts the court be of opinion that the defendant is guilty, the jury so find, otherwise not guilty," is sufficient as following approved precedents. Gillikin, 114-832.

Where, in a bastardy proceeding, the justice found that, as the result of illicit intercourse between the defendant and the prosecutrix, the latter was delivered of a child eight months after such intercourse, which was living at the time of the trial, and that he, the trial justice, did not believe that an eight-months child could live, and on these findings adjudged the defendant not guilty: Held, that such findings do not constitute a special verdict. Bruce, 122-1040.

It is not necessary to enter a formal verdict in accordance with the opinion of the court on a special verdict. Spray, 113—686.

Where the court sets aside a special verdict, it can not then order a general verdict of guilty or not guilty to be entered; the effect is to make a mistrial. Moore, 29 (7 Ired.), 228.

A special verdict which simply finds a certain state of facts, without a formal verdict of guilty or not guilty in accordance with the opinion of the court upon the facts found, is incomplete, and will not support a judgment. Moore, 107-770. Monger, 107-771.

Where a special verdict is returned which is so defective that no judgment can be pronounced upon it, the supreme court will order a new trial. Lowry, 74-121.

A mistake in the verdict of a jury may be corrected before it is recorded and the jury discharged. Shelly, 98-673.

A special verdict must find all the facts necessary to constitute the offense charged, and such facts should be fully and explicitly stated to warrant the court in pronouncing judgment upon the verdict. Bloodworth, 94–918.

SEPARATE VERDICT ON EACH COUNT.-Where there are several counts in an indictment, a defendant has the right to require a separate verdict to be rendered on each count; but this is a privilege, and if he does not ask to have this done in apt time he can not afterwards be heard to complain. Toole, 106-736.

While a defendant has the right to require a separate verdict on each count, yet he waives the right to insist on such verdict if not asked for in apt time; and where some of the counts are defective, if he fails to ask for a separate verdict, a general verdict of guilty will support the judgment, though he has pointed out errors of the judge, to which he excepted in apt time, either in the refusal to admit competent testimony offered, or the admission of incompetent testimony objected to bearing on the good counts, or in giving objectionable instructions as to the good counts. Avery and Shepherd, JJ., dissenting. Toole, 106-736.

Where there is a general verdict of guilty on an indictment containing several counts, and only one sentence is imposed, if some of the counts are defective the judgment will be supported by the good count. Toole, 106-736.

Where there are two counts in an indictment, one good and the other defective, and there is a general verdict against the defendants, the judgment will be presumed to have been upon the good count alone; but where both counts are good and the court gives erroneous instructions to the jury as to one of the counts, it is presumed that the judgment was given upon both counts, and a venire de novo will be awarded. McCanless, 31 (9 Ired.), 375. Where there is a general verdict of guilty or an indictment containing several counts, and some of the counts are defective, if the verdict as to any of the counts is subject to objection for the admission of improper testimony or erroneous instruction, the sentence will be supported by the verdict on the other counts, unless the error was such as might or could have affected the verdict on the good counts. Overruling State v. McCanless, 31 (9 Ired.), 375. Avery and Shepherd, JJ., dissenting. Toole, 106—736.

JURY'S OPINION OF THE LAW IN SPECIAL VERDICT.-Where in a special verdict the jury stated the facts essential to the defendant's conviction, and upon them found him guilty, adding that "upon their opinion of the law, of which they were ignorant, they rendered a verdict of not guilty," this the judge properly ignored as surplusage, or at least erroneous, and adjudged the defendant guilty upon the facts. Scott, 142–602.

SEVERAL COUNTS.—A verdict of guilty on an indictment containing several counts charging offenses of the same grade and punishable alike, is a verdict of guilty on each and every count; and if the verdict on either count is free from valid objection, there being evidence tending to support it, the conviction and sentence for that offense will be upheld. Sheppard, 142—586.

PRACTICE ON APPEAL.-The supreme court will not look into affidavits in support of a motion to set aside a verdict for misconduct of the jury, but will look only to the record presented, and when such motion is designed to be submitted to their revision, the facts must be ascertained by the court and spread upon the record. Godwin, 27 (5 Ired.), 401. Smallwood, 78-560.

IMPEACHING THE VERDICT.--A juror is incompetent as a witness to impeach the verdict of the jury of which he was a member. Brittain, 89–481.

A verdict can not be impeached for misconduct of the jury by evidence proceeding from members of the body. Best, 111-638.

The verdict of a jury can not be impeached by one of its members. Royall, 90-755. Smallwood, 78-560. Brittain, 89-481.

VERDICT OF GUILTY MAY BE SET ASIDE.-The court may set aside a verdict of guilty where it is against the weight of evidence, or where there is no evidence to support it. Atkinson, 93-519.

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

SUNDAY.-A verdict may be rendered on Sunday. Penley, 107—808.

VERDICT OF NOT GUILTY CAN NOT BE SET ASIDE.-The judge can not set aside a verdict of not guilty, nor grant a new trial after such verdict on the motion of the state, on the ground that one of the jurors had been improperly sworn. Freeman, 66-647.

NON-RESIDENT JUROR.-The fact that one of the jurors was a non-resident of the county is no ground for a new trial after the verdict is rendered. White, 68-158.

VERDICT OF ACQUITTAL BY FRAUD A NULLITY.-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.

VERDICT OF NOT GUILTY CAN NOT BE CHANGED.-Where, on indictment for horse-stealing, the jury return as their verdict that the defendant is "not guilty of the felony and horse-stealing, but guilty of a trespass," and the court directs them to reconsider their verdict and say guilty or not guilty, and no more, and the jury then return a general verdict of guilty, it is proper to still have the first verdict recorded and the defendant discharged. Arrington, 7 (3 Murph.), 571.

INFORMAL OR INSENSIBLE VERDICT.-Where the jury return an informal or insensible verdict, or one that is not responsive to the issues involved, they may be directed by the court to reconsider it. Arrington, 7 (3 Murph.), 571.

VERDICT FOR MINOR OFFENSE.-On indictment for a felony, the jury can not return a verdict of guilty of a minor offense included in the felony, if such minor offense be a misdemeanor, as an acquittal of a felony is no bar to another indictment for the same act changing it to a misdemeanor. Durham, 72-447.

WHEN VERDICT RECONSIDERED.-It is the duty of the court to look after the form and substance of a verdict, and if it be informal or insensible to direct the jury to reconsider it. Whitaker, 89-472.

Where an informal or insensible verdict is returned, or one that is not responsive to the issues submitted to the jury, the proper practice is for the court to set the verdict aside and order a venire de novo. Edmund, 15 (4) Dev.), 340. Whitaker, 89-472.

PROPER FORM MAY BE SUBSTITUTED.—While the verdict of a jury must be recorded substantially as rendered, it is the duty of the judge to see it put in proper form; and, therefore, a new trial will not be granted because the clerk, on the return of a general verdict of guilty on an indictment for burglary, recorded the verdict not in the words of the jury, but in the form given in a form-book, when the verdict as recorded was read to the jury and assented to as their verdict. Wincroft, 76–38.

ARREST OF JUDGMENT ON IRRESPONSIVE VERDICT.-An absurd and irresponsive verdict should never be recorded, but the jury should be directed to correct it so as to be in conformity to law and to present an intelligent record. Where, on indictment for assault and battery in the usual form, the jury returned a verdict of "guilty of shooting," the judgment was ordered arrested. Hudson, 74-246.

VERDICT RENDered in DefendANT'S ABSENCE.—A verdict of guilty rendered, in the absence of the defendant and his counsel, to a judge at his chambers, and entered on the record next day in the absence of the jury and the defendant, can not be sustained. Bray, 67-283.

Where the verdict, on indictment for larceny, is rendered to the clerk during the recess of the court, in the absence of the defendant and without his consent, and without any instruction from the court, judgment may be arrested, or the court even, ex mero motu, may set the verdict aside. Epps, 76-55.

VERDICT MUST BE ACCEPTED.-A verdict is not complete until it is accepted by the court. Godwin, 138-583.

JUDGE MUST LOOK AFTER FORM.-It is the duty of the judge to look after the form and substance of a verdict, and to see that no doubtful or insufficient finding passes into the records. Godwin, 138–583.

Where an informal, insensible, repugnant, or irresponsive verdict is returned, it is the duty of the judge to direct the jury to retire and reconsider and bring in a proper verdict. Godwin, 138–583.

JUDGE CAN NOT SUGGEST.-The judge can not suggest the alteration of a verdict in substance. Godwin, 138-583.

VERDICT "GUILTY, BUT INNOCENTLY."-The jury, in response to the question of the clerk, answered, “Yes, guilty, but innocently." The court directed the jury to retire and consider the evidence and return a verdict of guilty or not guilty, as they should find from the evidence and the law as given by the court; and the jury, after consultation, returned a verdict of guilty: Held, that the defendant was not entitled to his discharge on the ground that the first verdict was the true one and equivalent to a verdict of not guilty. Godwin, 138-583.

AGAINST EVIDENCE.-An exception that the verdict is contrary to the weight of the evidence is a matter for the trial judge and is not reviewable. Young, 138-571.

RELATIONSHIP OF PROSECUTOR AND JUROR.-Refusal to set aside a verdict on account of relationship of prosecuting witness and a juror is not reviewable. Maultsby, 130–664.

AMENDED NEXT DAY.-A verdict may be amended next day by adding the words "in manner and form as charged in the bill of indictment." Kinsauls, 126-1097.

MOTION TO SET ASIDE TOO LATE.-A motion to set aside a verdict for misconduct of the jury made a month after the trial can not be entertained. Kinsauls, 126–1097.

ORDER SETTING ASIDE STRICKEN OUT.-Where a verdict of guilty is set aside and a new trial ordered in the superior court, the order setting aside the verdict may be stricken out during the term. Chesnutt, 126–1121.

GENERAL VERDICT.-Where a general verdict of guilty is returned, the judge may either pronounce judgment or grant a new trial. He can not set the verdict aside and direct an acquittal to be entered. Curtis, 28 (6 Ired.), 248.

INFORMAL SET ASIDE.-Where an informal or insensible verdict is rendered, the proper practice is to set the verdict aside and order a new trial. Whitaker, 89-474.

CAN NOT DIRECT.-In no event in a criminal case is the judge permitted to direct a verdict against the defendant. Kill, 141–769.

FACTS TO BE FOUND.-Juries should not only find the facts, but they should draw their own conclusions therefrom uninfluenced by the acts or language of the court; and the language of a charge, "if you believe the evidence, the defendant is guilty, and you will return a verdict of guilty," is improper, though, standing alone, not reversible error. Simmons, 143-613.

The finding of a special verdict on an indictment for selling liquor without a license must be sufficient for the court, as a matter of law, to determine the innocence or guilt of the defendant; when the verdict leaves open the inference of innocence or guilt as one of fact, it is defective, and a new trial will be ordered. Hanner, 143-632.