CORN AND CORN MEAL.

Sec. 158 (3810). Corn meal.

If any person shall pack for sale, sell or offer for sale in this state any corn meal except in bags or packages containing by standard weight two bushels or one bushel or one-half bushel or onefourth bushel or one-eighth bushel, respectively, each bag or package of corn meal shall have plainly printed or marked thereon whether the meal is "bolted" or "unbolted," the amount it contains in bushels or fraction of a bushel, and the weight, he shall be guilty of a misdemeanor and fined not exceeding fifty dollars, or imprisoned not exceeding thirty days: Provided, the provisions of this section shall not apply to the retailing of meal direct to customers from bulk stock when priced and delivered by actual weight or

measure.

1905, c. 126, ss. 2, 3.

Sec. 159 (3809). Corn, in certain counties.

If any person shall buy, sell, deliver, or receive for a price or for any reward whatever, any corn in the ear or shelled of a less amount than five bushels, between the hours of sunset and sunrise, he shall be guilty of a misdemeanor, and upon conviction be punished by a fine not exceeding fifty dollars or imprisoned not exceeding thirty days. In all prosecutions under this section it shall only be necessary for the state to allege and prove that the defendant bought or received the corn as charged, and the burden shall be upon the defendant to show that the provisions of this section have been complied with: Provided, this section shall only apply to the counties of Beaufort, Hyde, Martin, Tyrrell, Washington, Pamlico, Halifax and Edgecombe.

1889, c. 90; 1891, c. 6; 1891, c. 8.

CORPORATIONS.

Sec. 160 (440). Served by copy; how indicted.

The summons shall be served by delivering a copy thereof in the following cases:

1. If the action be against a corporation, to the president or other head of the corporation, secretary, cashier, treasurer, director, managing or local agent thereof: Provided, that any person receiving or collecting moneys within this state for, or on behalf of, any corporation of this or any other state or government, shall be deemed a local agent for the purpose of this section; but such ser

vice can be made in respect to a foreign corporation only when it has property within this state, or the cause of action arose therein, or when the plaintiff resides in the state, or when such service can be made within the state, personally upon the president, treasurer or secretary thereof.

Note. For service on foreign corporations by service on local process agent, see Corporations, Revisal of 1905, s. 1243, and Insurance.

For service on corporation for forfeiture of charter, see Corporations, Revisal 1905, s. 1199.

HOW CORPORATION INDICTED.-This section applies to criminal actions as well as to civil, and the proper mode of bringing into court a corporation charged with a criminal offense is by issuing a summons and serving a copy on one of its officers or agents. Western N. C. R. R. Co., 89-584.

A copy of the charter of a foreign corporation, certified by the secretary of state where it was incorporated, under his official signature and the state seal, is admissible in North Carolina to prove the fact of incorporation. Turner, 119-841.

Where an indictment alleges the ownership of property by a corporation, it is sufficient to show that the corporation carried on business under the corporate name set out in the indictment without producing the certificate of incorporation, or a copy thereof. Turner, 119–841.

Sec. 161 (3690). Corporations, agents of, refusing certain demands by officer with execution for service.

If any agent or person having charge or control of any property of a corporation, or any clerk, cashier, or other officer of a corporation, who has at the time the custody of the books of the company,

if any agent or person having custody of any evidence of debt due to a corporation, shall, on request of a public officer having in his hands for service an execution against the said corporation, willfully refuse to give to such officer the names of the directors and officers thereof, and a schedule of all its property, including debts due or to become due, or shall willfully refuse to give to such officer a certificate of the number of shares, or amount of interest held by such corporation in any other corporation, or shall willfully refuse to deliver to such officer any evidences of indebtedness due or to become due to such corporation, he shall be guilty of a mi demeanor.

1901, c. 2, ss. 67, 68, 70.

Sec. 162 (3786). Agent of corporations failing to pay taxes.

If any agent or officer of a corporation, after having been notified by the sheriff or tax-collector that the taxes assessed against such corporation are delinquent, shall fail or refuse to pay over to the sheriff or tax-collector all moneys in his hands, or which may afterwards come into his hands, belonging to such corporation, not

exceeding the amount of the taxes due, he shall be guilty of a misdemeanor, and fined not less than fifty nor more than five hundred dollars.

1901, c. 558, s. 29.

CORPUS DELICTI.

While presumptive evidence may form the basis of the corpus delicti in all cases, such evidence ought to be strong and cogent. Williams, 52—454. Where, in cases of homicide, the dead body has been destroyed, the corpus delicti must be shown by evidence, either direct or presumptive, that a crime has been committed and the existence of criminal agency as the cause of the crime. Williams, 52-453.

The corpus delicti may be proved by presumptive or circumstantial evidence. Williams, 52-453.

A person may be convicted of larceny upon evidence connecting him with the theft, though the articles stolen may not be identified or found. Kent, 65-311.

COSTS.

Sec. 163 (1295). Who is prosecutor; when pays costs.

In all criminal actions, if the defendant be acquitted, nolle prosequi entered, judgment against him arrested, or if the defendant shall be discharged from arrest for want of probable cause, the costs, including the fees of all witnesses summoned for the accused, whom the judge, court or justice of the peace before whom the trial took place shall certify to have been proper for the defense, shall be paid by the prosecutor, whether marked on the bill or warrant or not, whenever the judge, court or justice shall be of opinion that there was not reasonable ground for the prosecution, or that it was not required by the public interest. And every judge, court or justice is hereby fully authorized to determine who the prosecutor is at any stage of a criminal proceeding, whether before or after the bill of indictment shall have been found, or the defendant acquitted: Provided, that no person shall be made a prosecutor after the finding of the bill, unless he shall have been notified to show cause why he should not be made the prosecutor of record.

Code, s. 737; 1889, c. 34; R. C., c. 35, s. 37; 1799, c. 4, s. 19; 1800, c. 558; 1868-9, c. 277; 1874-5, c. 151; 1879, c. 49.

NOTICE OF MOTION.-An announcement in open court, upon the calling and continuance of a case, that a motion would be made at next term to mark a witness as prosecutor, the witness being present, is sufficient notice of the motion. Norwood, 84-794.

A notice given by defendant alone to have the prosecutor marked as such and adjudged to pay the costs, is sufficient, and the solicitor may make the motion without further notice. Hughes, 83-665.

Where the prosecutor testifies in court in the investigation of facts upon the motion to mark him as prosecutor and tax him with the costs, he has sufficient notice of the motion. Hamilton, 106–660.

The court has no power to mark one as prosecutor without his consent and without notice to show cause. Crosset, 81-579.

The presence of a prosecutor to convict the defendant is, in law, a presence to answer the latter in costs for the false clamor if the prosecution is adjudged frivolous, and a judgment against the prosecutor for such costs is valid, though rendered in his absence and without notice. Spencer, 81-519.

One marked as prosecutor on a bill of indictment is charged with knowledge of all subsequent proceedings in the case, and a motion to set aside an irregular judgment taxing him with the costs of the prosecution can not be made more than a year after the rendition of the judgment. Horton, 89-581.

An erroneous judgment can not be set aside at a subsequent term of the court, and the only remedy is by appeal. Ib.

PROSECUTOR MAY APPEAL.-A prosecutor may appeal from a judgment taxing him with costs. Byrd, 93-624.

APPEAL BOND COVERS WHAT COSTS.-On appeal to the supreme court the appeal bond covers costs, both of the supreme court and the superior court. Patterson, 27 (5 Ired.), 89.

PROSECUTOR'S NAME MUST BE MARKED ON INDICTMENT.—No person is to be regarded as a prosecutor within the meaning of the statute making him liable to pay costs unless his name is marked as such on the bill of indictment. Lupton, 63-483.

ORDER MADE EX MERO MOTU.-The court ex mero motu may order that a prosecutor be taxed with the costs. Adams, 85-560.

PROSECUTOR'S MOTIVE IMMATERIAL. If the prosecutor had good cause, though his motives be of the worst kind, he ought not to pay costs. Forsyth, 1 Tay. Rep.), 16.

No APPEAL WHERE EVIDENCE SUPPORTS JUDGMENT.-Where there is evidence to support the order taxing the prosecutor with the costs on the ground that the prosecution was frivolous or malicious the judgment will not be reviewed by the supreme court. Whitley, 123–728.

MAY APPEAL FROM JUSTICE.—An appeal lies from the judgment of a justice of the peace taxing the prosecutor with the costs, such taxing being in the nature of a civil judgment. Morgan, 120-563.

FINDINGS BY JUSTICE REVIEWABLE.-The findings of fact of a justice of the peace in taxing the costs against the prosecutor are reviewable in the Superior court. Morgan, 120-563.

FINDINGS OF SUPERIOR COURT NOT REVIEWABLE.-The findings of fact by the superior court, on a motion to tax the prosecutor with the costs are not reviewable in the supreme court. Such findings by a justice are reviewable in the superior court. The reason for this distinction is given in In re Deaton, 105-62; Morgan, 120-563.

STATE CAN NOT APPEAL.-The state can not appeal from the judgment of the superior court declining to tax a prosecutor with the costs of an action tried in a justice's court. Morgan, 120-563.

No appeal lies in behalf of the state from a judge's finding of fact that the person taxed by a justice of the peace as prosecutor was not in fact such. Morgan, 120-563.

APPEAL PREMATURE, WHERE.-An appeal from an order remanding a case to the justice who tried the case to find the facts relative to taxing a person with the costs is premature. Butts, 134-607.

MOTIVE IMMATERIAL IF CAUSE.-Where there was probable cause the prosecutor ought not to be adjudged to pay costs, though his motives may have been of the worst kind. Forsyth, 3-16.

DEFENDANT'S WITNESSES-FINDING OF FACT.-The finding that the witnesses were necessary for the defense must be made before the prosecutor can be taxed with the fees of such witnesses. Jones, 117-768.

PROSECUTOR MARKED ON BILL BEFORE GRAND JURY.-A person marked as prosecutor on a bill before it was acted on by the grand jury is properly adjudged to pay the costs where the prosecution is found not to be required by the public interest. Baker, 114-812.

FINDING SUFFICIENT.-A finding by the judge that the prosecution "was not for the public interest," is equivalent to a finding that it "was not required by the public interest." Baker, 114-812.

PAYMENT OF DEFENDANT'S WITNESSES BY COUNTY.-Where no prosecutor is marked it is in the discretion of the judge to make an order for the payment of defendant's witnesses by the county, and the exercise of such discretion is not reviewable. Ray, 122-1095.

It is discretionary with the trial judge to refuse to order the witnesses of the defendant paid by the county. Hicks, 124–829.

SUCCEEDING JUDGE MAY HEAR MOTION.-Upon motion and notice to show cause the prosecution may be adjudged frivolous by another judge at a subsequent term. Sanders, 111-700.

FINDING OF FACTS NECESSARY.-It is error to tax a prosecutor with the costs without a previous finding of facts by the court. Roberts, 106-662.

BILL IGNORED BY THE GRAND JURY.—A prosecutor can not be taxed with the costs of the prosecution when the grand jury returns the indictment "not a true bill. Following State v. Cockerham, 1 Ired., 381. Horton, 89-581. The prosecutor can not be taxed with the costs when the bill is ignored by the grand jury. Gates, 107-832.

SOLICITOR'S FEE CAN NOT BE TAXED.-Where the prosecutor is adjudged to pay the costs on the ground that the prosecution was frivolous or malicious, the solicitor's fee can not be taxed against him. Dunn, 95–698.

NO APPEAL.-No appeal lies from a judgment taxing a prosecutor with the costs because the prosecution was "frivolous and not required by the public interest." The finding of fact is not reviewable. Hamilton, 106-660.

Sec. 164 (1297). When imprisoned for.

Every such prosecutor may be adjudged not only to pay the costs, but he shall also be imprisoned for the non-payment thereof, when the judge, court, or justice of the peace before whom the case was tried shall adjudge that the prosecution was frivolous or ma licious.

Code, s. 738; R. C., c. 35, s. 37; 1800, c. 558; 1879, c. 49; 1881, e. 176.

Sec. 165 (1296). Pay of witnesses in criminal cases.

All witnesses summoned or recognized in behalf of the state shall be allowed the same pay for their daily attendance, ferriage and mileage as is allowed to witnesses attending in civil suits; and such fees for attendance shall be paid by the defendant, only upon conviction, confession or submission and if the defendant baequitted on any charge of an inferior nature, or a nolle prosequi be entered thereto, the court shall order the prosecutor to pay the costs, if such prosecution shall appear to have been frivolous or