old boy weighing only eighty pounds, who held it by the small end and struck with its edge the leg and back of a grown man of average size who was being held by two other men. Sinclair, 120-603.

The question whether an instrument with which a personal injury has been inflicted is a deadly weapon often depends more on the manner of its use than upon the intrinsic character of the instrument itself. Norwood, 115— 789.

Whether an instrument used in an assault is a deadly weapon is a question of law where there is no dispute about the facts, and as the jurisdiction of the court depends upon the determination of the question, it is proper for the judge to determine such matter when necessary. Sinclair, 120-603.

In determining whether a weapon used in an assault is a deadly weapon, it is necessary to take into consideration the size and nature of the weapon, the manner in which it is used, the size and strength of the assailant and the assailed. Sinclair, 120—603.

Whether an instrument is a deadly weapon is generally a question for the court. West, 51-505.

In determining whether an instrument is a deadly weapon the usual effect produced by it may be considered. West, 51-505.

An instrument may be deadly or not according to the mode of using it or the subject on which it is used. West, 51–505.

DEAF CHILDREN.

Sec. 205. Deaf children to attend school.

SECTION 1. That every deaf child of sound mind in North Carolina shall attend a school for the deaf at least five school terms of nine months each, between the ages of eight years and fifteen years. SEC. 2. That parents, guardians or custodians of a deaf child or deaf children between the ages of eight and fifteen years shall send said child or children or cause to be sent to some school for the instruction of the deaf at least five terms or sessions of nine months each, between the ages of eight years and fifteen years.

SEC. 3. That parents, guardians or custodians of any deaf children between the ages provided in section two of this act, failing to send said deaf child or deaf children to some school for instruction as provided in this act, shall be guilty of a misdemeanor, and upon conviction shall be fined or imprisoned at the discretion of the court for each year said deaf child is kept out of school between the ages herein provided: Provided, that said parents, guardians or custodians may elect two years between said ages of eight and fifteen years that a deaf child or deaf children may remain out of school: Provided further, that this section shall not apply to or be enforced against the parent, guardian or custodian of any deaf child until such time as the superintendent of any school for the instruction of the deaf, by and with the approval of the executive

committee of such institution, shall in his and their discretion, serve written notice on such parent, guardian or custodian directing that such child be sent to the institution whereof they have charge.

SEC. 4. That it shall be the duty of the school census-taker to report name, age and sex of each deaf child in his district, and name of parents, guardian or custodian, and their post-office address, to the county superintendent of education, who shall send said report of names and addresses to the superintendent of the North Carolina School for the Deaf and Dumb, located at Morganton, N. C. That said consus-taker or county superintendent failing to make reports as provided in this act shall be fined five dollors ($5) for each white deaf child not so reported.

SEC. 5. That said fine as provided in section three (3) of this act, and said fine of five dollars ($5) provided in section four (4) of this act, when collected, shall be paid to the public school fund of the county in which such child lives.

SEC. 6. That this act shall take effect the first day of September, one thousand nine hundred and seven.

1907, c. 1007.

DEAF AND DUMB PERSON.

Where a deaf and dumb prisoner is arraigned in this state there is no need of an issue to inquire first whether he stands mute of malice or by visitation of God, since under our statute the plea of not guilty is entered for him. Harris, 53 (8 Jones), 136.

On the arraignment of one for murder, it was suggested that the accused was a deaf mute and incapable of understanding the nature of a trial and its incidents and his rights under it: Held, proper for the court to have a jury empaneled to try the truth of these suggestions, and upon a finding in the affirmative, for une court to decline putting the prisoner on his trial. Harris, 53 (8 Jones), 136.

DEATH PENALTY.

Sec. 206 (3284). Governor to issue warrant for execution of death penalty. In all cases of affirmance of a sentence for a capital felony the clerk of the supreme court, at the same time that the decision of the supreme court is certified down to the superior court, shall send a duplicate thereof to the governor, who shall immediately issue his warrant under the great seal of the state to the sheriff of the county in which the appellant was sentenced, directing him to execute the death penalty on a day specified in said warrant, not less than

thirty days from the date of said warrant; but this shall not deprive the governor of the power to pardon or reprieve the defendant or to commute the sentence.

1887, c. 192, s. 3.

Sec. 207 (3285). Capital executions private.

As the ends of justice, public morals and the preservation of order demand that the execution of all capital offenders should be made private and invested with the solemnity appropriate to the final act of penal law, any sheriff on whom shall devolve the execution of a sentence of death on a public offender shall be required to provide for the execution of such criminal within the jail-yard inclosure, and as much removed from public view as the means within his control will allow.

Code, s. 1243; 1901, c. 215; 1868-9, c. 21, ss. 1, 2; 1879, c. 221.

Sec. 208 (3286). Witnesses and necessary assistants to be present at execution.

The sheriff, after having provided for the private execution of the criminal, may admit by ticket, in addition to the required guard, two physicians and necessary assistants, not more than thirty-six nor less than eighteen respectable citizens, to witness for the state the due observance of the law. The board of commissioners of Cumberland county shall have the power, in their discretion, to prescribe the place within said county for the execution of criminals in capital cases: Provided, that no such execution shall be public.

Code, s. 1244; 1868-9, c. 21, s. 3; 1905, c. 450.

DEFINITION OF CRIMINAL ACTION.

Sec. 209 (350). Criminal action.

A criminal action is

1. An action prosecuted by the state as a party, against a person charged with a public offense, for the punishment thereof.

2. An action prosecuted by the state, at the instance of an individual, to prevent an apprehended crime against his person or property.

Code, s. 129; C. C. P., s. 5; Const., Art. IV, s. 1.

DEMURRER TO EVIDENCE.

See also EVIDENCE.

PRACTICE WHERE DEMURRER OVERRULED.-Where a demurrer to evidence is overruled the defendant should not introduce evidence; if he has evidence which he intends to introduce he should take advantage of the failure of the state to make out a case by a prayer to instruct the jury. Adams, 115—775. Where, at the conclusion of the prosecutor's case, the defendant demurs to the evidence, it is proper for the court, upon overruling the demurrer, to refuse permission to the defendant to offer any testimony, and to charge the jury upon the state of facts admitted by the demurrer. Graves, 119–822.

Where the whole evidence is sent up, and the attorney-general does not object a demurrer to the evidence may be entered in the supreme court. Wilcox,

118-1131.

Where the defendant introduces no evidence and does not except to evidence introduced by the state nor to any ruling of the court, it is too late after verdict to move for a new trial on the ground that the testimony did not warrant the verdict. Leach, 119-828.

EFFECT OF DEMURRER SUSTAINED.-Where a demurrer to evidence is sustained on appeal, or an exception that there is no evidence to go to the jury, the case is not necessarily disposed of, because the state may produce more evidence on the next trial. Adams, 115-775.

The objection that there is no evidence that the offense was committed in the State can not be made by demurrer to the evidence. Burton, 138–578.

A demurrer to the evidence on the ground that there was no evidence that the offense was committed in the county as laid, can not be sustained. The proper practice is by plea in abatement. Burton, 138-578.

A defendant can not raise by demurrer to the evidence the objection that the crime, if proved, was not committed in this state. but this a matter of defense to be affirmatively shown by the defendant. Blackley, 138-620.

DENTISTS.

Sec. 210 (3642). Dentistry; practicing, without license.

If any person shall practice dentistry, except extracting teeth, without having first passed the examination and obtained the certificate provided by law, he shall be guilty of a misdemeanor, and fined twenty-five dollars: Provided, that if any person shall, after having been once convicted of practicing dentistry contrary to the provisions of said section three thousand six hundred and forty-two, practice dentistry in violation of the provisions of said section three thousand six hundred and forty-two, upon conviction thereof, for the second offense, and each succeeding offense, he shall be guilty of a misdemeanor and shall be fined and imprisoned, in the discretion of the court: Provided, any person so convicted shall not be entitled to sue for or recover any fee or charge for dental

service in any court, and any sum of money paid to a person so convicted for dental services rendered may be recovered by the person so paying the same, or his legal representative: Provided further, no one applying for a license to practice dentistry shall be denied such license on account of race, color or previous condition of servitude.

Code, ss. 3154, 3156; 1879, c. 139, ss. 7, 9; 1907, c. 431.

Sec. 211 (3643). Dentistry; falsely claiming to hold license.

If any person shall knowingly and falsely claim or pretend to have or hold a certificate of proficiency granted by the board of examiners of the North Carolina Dental Society, he shall be guilty of a misdemeanor, and upon conviction shall be fined not more than fifty dollars nor less than twenty-five dollars for each offense.

1887, c. 178, s. 4.

Time for filing the statement to practice dentistry under section 4470, Revisal, is not of the essence of the enactment; by a present compliance therewith the defendant will be entitled to a certificate to be registered under Revisal, section 4468, and thus become lawfully qualified to continue the practice of his profession. Hicks, 143-689.

The defendant, under an indictment for having practiced dentistry without complying with the statute, is not excused because the designated officers had not furnished, as required of them, blanks upon which to make the statement under Revisal, section 4470, if he has not substantially complied with the provisions of the statute in making his statement without having the blanks. Hicks, 143-689.

While Revisal, sections 4468, 4470 and 3642, are of a penal nature and strictly construed, they will receive a reasonable interpretation to discover their intent; the burden of proof is on the defendant to show he came under provision of the Revisal, section 4470, and in absence of evidence that he practiced dentistry in the state before the specified time, or had filed the required statement, having admitted that he had not passed the requisite examination or received the certificate, a motion to quash the indictment is properly refused. Hicks, 143–689.

The legislature has constitutional auhority to regulate the practice of dentistry under Revisal, section 4468, forbidding any person to practice who has not graduated at a reputable dental school and received a certificate of proficiency or qualification from the board of dental examiners, etc.; under section 4470, making the requirements inapplicable to any person who was a dental practitioner in this State before 7th of March, 1879, if on or before February 25, 1890, he should file a verified statement with the board of dental examiners showing his name, residence, date of diploma or license, and date of commencing practice here; under section 3642, making it a misdemeanor to practice dentistry without first having passed the required examination and received the certificate. Hicks, 143-689.