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plaint, and admitted in the answer as fol- sengers of the train that no drinking would lows:

be allowed on the train by passengers on (c) Section 3905: "General Rule.-Damages the return trip. His honor refused to allow are given as compensation for the injury the defendant to prove this alleged fact." We done and generally this is the measure when think the testimony was admissible as a prothe injury is of a character capable of being mulgation of the regulation of the defendant estimated in money." company as to the excursion train, made un(d) Section 3906: "Aggravation.-In every | der circumstances from which it might be tort there may be aggravating circumstances, inferred that it came to the notice of plaineither in the act or in the intention, and in tiff. While it was incumbent upon defendthat event the jury may give additional dam-ant to bring notice of the regulation home ages, either to deter the wrongdoer from to the plaintiff, and while it is true that repeating the trespass or as compensation plaintiff testified that he heard no such anfor the wounded feelings of the plaintiff."

(e) Section 3907: "Vindictive Damages.In some torts the entire injury is to the peace, happiness or feelings of the plaintiff; in such cases no measure of damages can be prescribed, except the enlightened conscience of impartial jurors. The worldly circumstances of the parties, the amount of bad faith in the transaction and all of the attending facts should be weighed. The verdict of a jury in such a case should not be disturbed, unless the court should suspect bias or prejudice from its excess or inadequacy."

(f) Section 3908: "Necessary Expenses.In all cases necessary expenses, consequent upon the injury done, are a legitimate idea in the estimate of damages."

nouncement, still the statement in the record is that public announcement was made to the passengers on the train, and this would have been sufficient to raise an issue as to whether plaintiff had notice of the announcement.

The testimony was not irrelevant, and was material in view of the Georgia statute giving the carrier right to eject a passenger for refusing to comply with reasonable regulations, and in view of the defense that plaintiff was behaving himself in an unseemly manner, and in violation of the law of Georgia when ejected.

The judgment of the circuit court is reversed, and the case remanded for a new trial.

STATE v. GREENE.

(g) Section 3913: "How to Ascertain.Damages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be re- (Supreme Court of North Carolina. Dec. 23, coverable."

(h) "Punitive damages are recoverable in an action against a railroad company by a passenger when the evidence shows that he was, without justification or excuse, forcibly expelled from its train by the conductor or other employé in charge thereof." Seaboard A. L. Ry. v. O'Quin (Supreme Court, Ga., Nov. 20, 1905) 124 Ga. 357, 52 S. E. 427, 2 L. R. A. (N. S.) 472.

There are other exceptions to the charge, but we deem the foregoing to be sufficient to dispose of the appeal based upon alleged errors in the charge.

1909.)

1. INDICTMENT AND INFORMATION (§ 71*) REQUISITES-CERTAINTY.

must be so stated as to show that a crime has In every criminal prosecution, the charge been committed, and the crime must be described with sufficient certainty to inform the defendant of the nature of the accusation against him and to enable the court to proceed to judgment in case of conviction.

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 193, 194; Dec. Dig. § 71.*]

2. HIGHWAYS (§ 151*) I WORK ON ROADS SUFFICIENCY OF INDICTMENT.

A warrant in a criminal prosecution for failure to work the public roads is fatally defective, where it fails to allege that defendant was assigned to work the road described and failed to negative the payment of the $1 allowed by the law in lieu of service.

[Ed. Note.-For other cases, see Highways, Cent. Dig. § 416; Dec. Dig. § 151.*]

Appeal from Superior Court, Franklin County; Cooke, Judge.

George Greene was convicted for failure to work the public roads, and he appeals.

One of appellant's exceptions assigns error in refusing to allow defendant's witness Newman to state that he made a public announcement to the passengers on the train going to Atlanta that no drinking would be allowed on the return trip. The question propounded to the witness was: "Will you state whether you made any announcement on that train going to Atlanta as to the conduct of these people?" Objection to this question was sustained. The brief contains this further statement: "When defendant Criminal prosecution for failure to work sought to show by the witness Newman the the public roads, heard on appeal from a announcement made on the train going to justice's court before his honor, C. M. Cooke, Atlanta, defendant's counsel stated to the J., and a jury, at January term, 1909, of the court that it was intended to show that de- superior court of Franklin county. Defendfendant had publicly announced to the pas-ant was convicted. Motion in arrest of judg

Reversed.

ment overruled. Judgment, and defendant, license. From a judgment dismissing the excepted and appealed. petition, plaintiff appeals. Reversed.

The Attorney General and Geo. L. Jones, for the State.

On September 10, 1909, plaintiff tendered to defendant the sum of $40 and demanded that the defendant, as sheriff, and in behalf of the state of North Carolina, and the county of Union, issue to plaintiff license to en

HOKE, J. We have recently held, in State v. Lunsford, 150 N. C. 862, 64 S. E. 765, that in every criminal prosecution, whether by in-gage in the sale of malt, beerine, near-beer, dictment or warrant, or warrant taken in connection with the affidavit, the charge must be so stated as to show that a crime has been committed, and same must be described with sufficient certainty to inform the defendant of the nature of the accusation against him, and to enable the court to, proceed to judgment in case of conviction.

In the present case, and under several decisions of the court, the warrant is fatally defective in failing to allege that defendant was assigned to work the road described and failing to negative the payment of the $1 allowed by the law in lieu of service. State v. Neal, 109 N. C. 859, 13 S. E. 784; State v. Baker, 106 N. C. 758, 11 S. E. 360; State v. Pool, 106 N. C. 698, 10 S. E. 1033; State v. Smith, 98 N. C. 747, 4 S. E. 517. The motion of defendant therefore must be allowed, and judgment against him arrested.

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TIONS.

and other nonintoxicating drinks, in said county and state for the period from June 1, 1909, to May 31, 1910. This defendant refused to do, alleging that he did not believe that said drinks could lawfully be sold in Union county. Plaintiff thereupon instituted this action petitioning for a writ of mandamus to compel defendant to accept the $40 tendered and issue to plaintiff the license demanded. From the judgment of the judge below dismissing plaintiff's petition, plaintiff in due time excepted and appealed.

David Stern and J. J. Parker, for appellant. A. M. Stack, for appellee.

BROWN, J. There is only one question presented by this appeal: Can malt, beerine, near-beer, and other nonintoxicating drinks, containing one-half of 1 per cent. alcohol, or more, be sold in Union county lawfully by one who has paid the license tax and obtained a license under Pub. Laws 1909, pp. 663, 676, c. 438, Schedule B, §§ 26, 63, and the resolution of the board of commissioners of Union county of July 7th, above referred to? This court has recently held that, in consequence of the legislation of 1909, near-beer and kindred nonintoxicating beverages mentioned in the act are now recognized articles of commerce and may be lawfully dealt in within this state notwithstanding the general prohibition law. State v. Dannenberg (at this term) 66 S. E. 301. This ruling is based upon well-considered adjudications in other states where prohibition laws similar to ours are

2. INTOXICATING LIQUORS (§ 11*)-REGULASince the General Assembly, by the "near-in force. We know of nothing which exempts beer" tax act (Pub. Laws 1909, pp. 663, 676, c. 438, §§ 26, 63), has expressed the general policy of permitting its sale, the counties may not prohibit it, and municipalities may only regulate, but not forbid, its sale or destroy the business by unreasonable taxation.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 13; Dec. Dig. § 11.*] 3. INTOXICATING LIQUORS (8 74*)-LICENSEISSUANCE-MANDAMUS.

The issuing of a license provided for by the "near-beer" tax act (Pub. Laws 1909, pp. 663, 676, c. 438, §§ 26, 63) is a mere ministerial act, and the sheriff has no discretion in the matter, and hence mandamus lies to compel its issuance.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 74, 75; Dec. Dig. § 74.*] Appeal from Superior Court, Union County; W. J. Adams, Judge.

Petition by J. D. Parker for a writ of mandamus against John W. Griffith, Sheriff of Union County, to compel the issuance of a

the county of Union from the effect and operation of the act of the General Assembly of 1909, which is an act to raise revenue and operates throughout the state. Of course, it does not repeal the general prohibition law, which prohibits only the sale of intoxicating drinks. In obedience to the act of 1909, the commissioners of Union county have levied the tax on such beverages provided therein for counties as well as for the state, as it was their duty to do. Since the General Assembly by the near-beer tax act has expressed the general policy of permitting its sale, the counties may not prohibit it, and incorporated cities and towns may only regulate but not forbid, its sale or destroy the business by unreasonable and prohibitive taxation. Campbell v. City of Thomasville (Ga. App.) 64 S. E. 821; State v. Dannenberg, supra. There are no exceptions in the act of

1909 which exempts Union or any other coun- | to convey a good title. Defendant having ty from its operation. The decision of this court in State v. Parker, 139 N. C. 586, 51 S. E. 1028, was rendered in 1905, and was a construction of the public local acts prohibiting the sale of intoxicating and alcoholic drinks in that county. The defendant was indicted under Pub. Acts 1903, p. 749, c. 434. After he was convicted, he moved in arrest of judgment, because since his conviction Pub. Acts 1905, p. 492, c. 497, had been enacted, which purported to make certain changes in the "Union county liquor laws." We declined to arrest the judgment, holding that the act of 1905 operated prospectively and did not so unqualifiedly repeal the act of 1903 as to prevent the imposition of the punishment imposed by the last-named act. This decision was followed by State v. Perkins, 141 N. C. 797, 53 S. E. 735, 9 L. R. A. (N. S.) 165, and State v. Scott, 142 N. C. 602, 55 S. E. 270. The issuing of a license provided for by the revenue act is a mere ministerial act. No discretion is vested in the sheriff to grant or refuse the license. Hence the writ of mandamus will lie to compel the sheriff to issue same. 25 Cyc. 623; 26 Cyc. 160. Nothing in this opinion is to be construed as denying incorporated cities and towns the right to adopt reasonable regulations for the sale of near-beer as recognized and defined in State v. Dannenberg, supra.

Let the writ of mandamus issue requiring the sheriff to accept the license tax imposed by law.

Reversed.

DAWSON v. ENNETT.

failed to pay, the present action was insti-
tuted to recover the purchase price, and
defendant resisted recovery, assigning for
cause that the title offered was not a good
one. The title of plaintiff was averred to
depend upon the estate and interest taken by
Marietta O'Leary, as devisee, under the will
of Wm. Daniel O'Leary, deceased; and the
contents of the will, and the facts relevant to
the question presented, are stated in the
complaint as follows: "(1) 'I loan to my be-
loved wife, Sarah Ann O'Leary, at my death
all my real estate during her natural life.'
(2) 'After the death of the said Sarah Ann
O'Leary and at my death, I give and be-
queath to my grandchild, Marietta O'Leary,
all of the real estate and one-half of the
personal estate loaned to the said Sarah
Ann O'Leary during her natural life, be-
longing to me at my death, both real and
personal, to be held by her, her heirs, exec-
utors, administrators or assigns forever.' (3)
'But if the within mentioned grandchild,
Marietta O'Leary, die without an issue, in
that case I give and bequeath to my nephew,
Francis Castex, all my real estate at my death
and at the death of my wife, Sarah Ann
O'Leary, to the said Francis Castex, to be
held by him, his heirs, executors, administra-
tors or assigns forever.' (4) Said Wm. D.
O'Leary died in 1865, said Sarah Ann O'Lea-
ry died shortly after, and said Marietta
O'Leary is still living. Said Marietta
O'Leary was the mother of one child, long
since deceased, and said Marietta O'Leary
has no living descendants."

Upon these facts, our authorities are to the effect that, under the will of Wm. Daniel O'Leary, the devisee Marietta took an

(Supreme Court of North Carolina. Dec. 23, estate in fee simple defeasible on her dying

1909.)

WILLS (§ 602*)-ESTATE CONVEYED-DEFEASI-
BLE FEE.

A will loaned all of testator's realty to his wife during her life, and after her death gave it to his grandchild to be held by her, her heirs, etc., forever, but provided that if she die without issue it should go to his nephew. Held, that upon the wife's death the grandchild took a fee, defeasible upon her dying without living issue, when the land would pass to the nephew. [Ed. Note.-For other cases, see Wills, Cent. Díg. § 1354; Dec. Dig. § 602.*]

Appeal from Superior Court, Craven County; Guion, Judge.

without issue living at the time of her death. Harrell v. Hagan, 147 N. C. 111, 60 S. E. 909, 125 Am. St. Rep. 539; Sessoms v. Sessoms, 144 N. C. 121, 56 S. E. 687; Whitfield v. Garris, 134 N. C. 24, 45 S. E. 904; Wright v. Brown, 116 N. C. 26, 22 S. E. 313; Buchanan v. Buchanan, 99 N. C. 308, 5 S. E. 430; Smith et ux. v. Brisson et ux., 90 N. C. 284; Gibson v. Gibson, 49 N. C. 425. In the more recent case of Harrell v. Hagan, supra, speaking of the time to which the determination of a contingent estate of this character should ordinarily be referred, the court said: "Under several of the more recent decisions of the court, the event by which the

Action by N. B. Dawson against G. N. Ennett. From a judgment sustaining demurrer to the complaint, plaintiff appeals. Af-interest of each is to be determined must be firmed.

referred, not to the death of the devisor,

T. D. Warren, for appellant. Simmons, but to that of the several takers of the esWard & Allen, for appellee.

tate in remainder, respectively, without leav ing a lawful heir"-citing Kornegay v. MorHOKE, J. The plaintiff, having acquired ris, 122 N. C. 199, 29 S. E. 875; Williams and holding the estate and interest of Mar- v. Lewis, 100 N. C. 142, 5 S. E. 435, 6 Am. ietta O'Leary in a certain piece of land in | St. Rep. 574; Buchanan v. Buchanan, 99 N. said county, bargained the same to defend- C. 308, 5 S. E. 430; and the authorities reant at the contract price of $400, and agreed ferred to fully support this statement. Ap

plying the doctrine, the title offered by plain- | in self-defense, they should convict him of mantiff, being that taken by Marietta O'Leary slaughter, was not misleading. as devisee under the will, is defective, in

that, on her death without issue then living, the estate would pass under the will to Francis Castex or his heirs or assigns. In the case of Hathaway v. Harris, 84 N. C. 96, cited by counsel for the appellant, the devisee had issue living at the time of his death, and the question now presented did not appear.

There is no error, and the judgment of his honor sustaining the demurrer must be affirmed.

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PRE

1. HOMICIDE (§ 152*) "MANSLAUGHTER" "MURDER IN THE SECOND DEGREE" SUMPTIONS.

Where the killing with a deadly weapon was established, or admitted, and the plea was self-defense, the two presumptions that the killing was unlawful and that it was done with malice arose, and, where accused merely rebutted the presumption of malice, the presumption that the killing was unlawful stood, justifying a conviction of "manslaughter," which is an unlawful killing, which becomes "murder in the second degree" when it has the added element

of malice.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 279, 280; Dec. Dig. § 152.*

For other definitions, see Words and Phrases, vol. 5, pp. 4338-4342; vol. 8. p. 7715; vol. 5, pp. 4641, 4642; vol. 8, p. 7727.]

2 CRIMINAL LAW (§ 1175*)-APPEAL AND ERBOR-HARMLESS ERROR-VERDICT.

One convicted of manslaughter cannot complain that the jury, on discarding his plea of self-defense, should have convicted of murder in the second degree.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 3188; Dec. Dig. § 1175.*] 3. HOMICIDE (§ 244*) - INSTRUCTIONS - SELFDEFENSE.

-

An instruction that, if the jury were "left in doubt" whether accused slew in self-defense, they should convict of manslaughter, was er

roneous.

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[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1990; Dec. Dig. § 822.*] 5. HOMICIDE (§ 300*)-INSTRUCTIONS-SELFDEFENSE-SUFFICIENCY.

Cent. Dig. § 619; Dec. Dig. § 300.*]

[Ed. Note.-For other cases, see Homicide,

Appeal from Superior Court, Polk County; Justice, Judge.

Joe Fowler was convicted of manslaughter, and he appeals. Affirmed.

Shipman & Williams, for appellant. The Attorney General and Geo. L. Jones, for the State.

BROWN, J. This appeal presents two assignments of error:

1. Did the judge err in submitting to the jury the question of manslaughter? Under State v. Quick, 150 N. C. 820, 64 S. E. 168, such an error is without prejudice to the defendant, and he cannot complain. When, as in this case, the plea is self-defense, and the killing with a deadly weapon is established or admitted, two presumptions arise: (1) That the killing was unlawful; (2) that it was done with malice. An unlawful killing is manslaughter, and, when there is the added element of malice, it is murder in the second degree. When the defendant takes up the laboring oar, he must rebut both presumptions-the presumption that the killing was unlawful, and the presumption that it was done with malice. If he stops when he has rebutted the presumption of malice, the presumption that the killing was unlawful still stands, and, unless rebutted, the defendant is guilty of manslaughter. This is a fair deduction from the cases in this state. State v. Hagan, 131 N. C. 802, 42 S. E. 901; State v. Brittain, 89 N. C. 501, 502. At the request of defendant, the judge charged the jury very explicitly that, if they should find from the evidence offered by the defendant that the killing occurred under circumstances claimed by him and testified to by his witnesses, they should return a verdict of not guilty. The jury discarded defendant's plea, and if, as now argued by him, there was nothing in the evidence to warrant a verdict of manslaughter, it was the duty of the jury to convict of murder in second degree. It necessarily follows that, under such circumstances, the defendant cannot complain of a verdict for manslaughter, a lesser degree of homicide. An error on the side of mercy is not reversible; but we think there is in this case, as in State v. Quick, evi

dence upon which a verdict of manslaughter may be supported.

2. His honor stated to the jury in one part of his charge that, if they were "left in doubt" as to whether the defendant slew in

Where the court charged that accused was self-defense, they should return a verdict of not required to rebut the presumption of malice, arising from the killing with a deadly weapon, manslaughter. This was erroneous, and if beyond a reasonable doubt, but to the satis- the objectionable words stood alone, as in faction of the jury, and that the plea of self- State v. Clark, 134 N. C. 698, 47 S. E. 36, defense must be sustained only to the satisfaction of the jury, a charge that, if the jury we would award a new trial. In the case at were left in doubt as to whether accused slew bar, taking the charge as a whole, it is a

very clear and luminous exposition of the law of homicide. A charge is not to be interpreted by picking out an expression here and there. "It is to be considered as a whole in the same connection 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 to the jury, it will afford no ground for reversing the judgment, though some of the expressions, when standing alone, might be regarded as erroneous." 2 Thompson on Trials, § 2407; State v. Exum, 138 N. C. 602, 50 S. E. 283; Everett v. Spencer, 122 N. C. 1010, 30 S. E. 334; Westbrook v. Wilson, 135 N. C. 402, 47 S. E. 467. His honor gave this prayer in the words in which it was expressed: "That the prisoner is not required to rebut the presumption of malice arising from the killing with a deadly weapon beyond a reasonable doubt, but to the satisfaction of the jury." The instruction that the plea of self-defense must be sustained only to the satisfaction of the jury was repeated so often and made so plain in the charge that we cannot think that the jurors were misled. No error.

WALKER, J., concurs in result.

STATE v. McCLOUD.

(Supreme Court of North Carolina. Dec. 23, 1909.)

CRIMINAL LAW (§ 882*)-TRIAL-SPECIAL VER

DICT.

In a prosecution under Revisal 1908, 8 3432, making it an offense to obtain by false pretense anything of value, or any order for the payment of money or for the delivery of specific articles, with intent to cheat or defraud any person or corporation of the same, the jury returned a special verdict finding: That a corporation engaged in mercantile business issued aluminum checks to employés of a lumber company good for the amount of the goods named in the check; that B. was a laborer for said lumber company, and his name had been furnished by the lumber company as its laborer to said corporation; that defendant applied to said corporation for a $1 check and told the clerk that his name was B.; that the clerk furnished him a check good for $1; that no goods were furnished on the check; that defendant's name was not B., and B. had not authorized him to call for his check. Held, that the special verdict was too defective to warrant judgment thereon, in not finding the intent with which defendant made the statements, and in not finding under what agreement the corporation issued its checks to laborers of the lumber company; as, in determining the guilt of defendant on a special verdict, the court is confined to the facts found, and can infer nothing not directly found.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2092; Dec. Dig. § 882.*] Appeal from Superior Court, Beaufort County; Peebles, Judge.

Richard McCloud was convicted of cheating by means of false pretenses, and appeals. Reversed.

This was an indictment under section 3432, Revisal 1908. The jury returned the following special verdict: "The Clarke-Smith Company was a corporation engaged in mercantile business at Belhaven. It issued aluminum checks to employés of the Roper Lumber Company, representing goods and good for amount in goods named in check. Henry Boyd was a laborer for said Roper Lumber Company, and his name had been furnished by said Roper Lumber Company, as its laborer, to said Clarke-Smith Company. Defendant applied to said Clarke-Smith Company for a $1 check. The clerk asked the defendant his name. He told him it was Henry Boyd. Thereupon the clerk furnished him a check good for $1, and representing $1 in goods. The clerk said he thought defendant's conduct suspicious. The next day the defendant came back and asked for another $1 check. Clerk refused in consequence of the fact that Boyd had been in in the meantime. No goods were furnished on the check. Defendant's name was not Henry Boyd, and Boyd had not authorized him to call for his check. If, upon this finding, the court is of the opinion that defendant is guilty, the jury find him guilty. If the court is of the opinion that he is not guilty, we find him not guilty." Whereupon the court adjudged the defendant not guilty, and the solicitor appealed.

Attorney General Bickett and G. L. Jones, for the State.

MANNING, J. The special verdict found in this case is defective, and the facts found by the jury are not sufficient to warrant any judgment thereon. In determining the guilt or innocence of a defendant upon a special verdict, the court is confined to the facts found, and is not at liberty to infer anything not directly found. State v. Custer, 65 N. C. 339; State v. Hanner, 143 N. C. 632, 57

S. E. 154, and cases cited. The special verdict does not find the intent with which the defendant made the statements. "The intent to cheat and defraud the prosecutor is an essential ingredient in the crime of false pretense. The verdict should have found that fact distinctly, the one way or the other; either that the defendant made the false representation with intent to cheat, or that he made the statement under an honest conviction of its truth." State v. Blue, 84 N. C. 807; State v. Oakley, 103 N. C. 408, 9 S. E. 575. In the absence of such definite finding, the uniform practice is to grant a new trial. State v. Bray, 89 N. C. 480; State v. Blue, supra; State v. Oakley, supra; State v. Hanner, supra. Nor is there a finding showing under what agreement or arrangement the Clarke-Smith Company issued its aluminum checks to the laborers of the Roper Lumber Company. The aluminum check was the promise to pay of the Clarke-Smith Compa

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