other water-course which passes beyond the premises of the owner of such swine, he shall be guilty of a misdemeanor, and upon conviction shall be fined not exceeding fifty dollars or imprisoned not exceeding thirty days.

1889, c. 173, s. 1; 1891, c. 67, ss. 1, 3; 1903, c. 106; 1899, c. 47.

Sec. 428 (3298). Contagious diseases; hogs dying with, buried or burned. If any hog or other animal shall die with the hog cholera or other infectious disease, and the owner thereof shall fail to burn or to so bury the same as to secure it from the reach or contact with other hogs or other domestic animals of value, or if he shall throw or place such hog or other animal in any ditch, canal, branch, creek, river or other water-course passing beyond his own premises, he shall be guilty of a misdemeanor and upon conviction shall be fined not more than fifty dollars or imprisoned not more than thirty days.

1889, c. 173, s. 2; 1891, c. 67, ss. 2, 3; 1899, c. 47; 1903, c. 106.

HOLIDAYS.

COURT MAY SIT DURING HOLIDAYS.-Code N. C., sections 3782-3784, declaring certain days public holidays, do not prevent the courts from proceeding with the usual business before them. Moore, 104-743.

HOMESTEAD.

Sec. 429 (3586). Homestead; officers, appraisers and creditors conspiring. If any officer, appraiser or assessor shall willfully or corruptly conspire with any judgment creditor, or other appraiser or assessor, to overvalue the homestead or personal property exemption of any debtor or applicant, or shall assign false metes and boundaries, or make, or procure to be made, false and fraudulent return thereof, he shall be guilty of a misdemeanor.

Code, s. 518; 1868-9, c. 137, s. 19.

Sec. 430 (3584). Failure to allot.

If any officer making a levy under an execution shall refuse or neglect to summon and qualify appraisers to allot a homestead, or a personal property exemption, when demanded, or shall unlawfully levy upon the homestead set apart by appraisers, or shall fail to make due return of his proceedings, he shall be guilty of a misdemeanor.

Code, s. 516; 1868-9, c. 137, s. 17.

Sec. 431 (3585). Officers, debtor and appraisers conspiring.

Any officer, appraiser or assessor who shall willfully or corruptly conspire with any judgment debtor or other appraiser or assessor to undervalue the homestead or personal property exemption of such debtor, or shall assign false metes and bounds, or make or procure to be made a false and fraudulent return thereof, shall be guilty of a misdemeanor.

Sec. 432 (3631). Homicide; murder in the first degree, second degree. A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death. All other kinds

of murder shall be deemed murder in the second degree, and shall be punished with imprisonment of not less than two nor more than thirty years in the state's prison.

1893, c. 85; 1893, c. 281.

Sec. 433 (3271). Verdict for murder in the second degree on bill for first. Nothing contained in the statute law dividing murder into degrees shall be construed to require any alteration or modification of the existing form of indictment for murder, but the jury before whom the offender is tried shall determine in their verdict whether the crime is murder in the first or second degree.

1893, c. 85, s. 3.

1. MURDER IN FIRST DEGREE.

Where the prisoner weighs the purpose of killing long enough to form a fixed design to kill, and at a subsequent time, no matter how soon or how remote, puts it into execution, there is sufficient premeditation and deliberation to warrant a verdict of guilty of murder in the first degree. Dowden, 118-1145.

The rule that where the killing with a deadly weapon is admitted or proven malice is presumed, and it devolves upon the prisoner to show facts in extenuation, mitigation or excuse, applies to murder in the second degree but not in the first. Locklear, 118-1154.

It was admitted that one J killed the deceased, and it appeared in evidence that, just prior to the killing, the defendants went with J to the house of the deceased where J, in the presence and hearing of the defendants, cursed and threatened the life of the deceased's wife; that then J went into the house, got two guns of the deceased, carried them to the kitchen, met the deceased at the gate and in the sight and hearing of the defendants shot and killed the deceased as the latter approached the gate; that the defendants made no attempt, by word or act, to prevent the killing, made no outery, but, without saying anything, walked away with J; that a short time before the killing a witness had a conversation with the defendants, and one of them said that J had sent for deceased to come over and compromise a difficulty between the latter and J and that J had loaded his gun and was going to shoot deceased if he did not settle; that one of the defendants asked witness for cartridges for his pistol, saying, "I am afraid we are going to have trouble with J today;" that on the day of the killing J came to the house of defendant F without a gun, and the two men went away together, and in twenty minutes witness heard two guns fired at deceased's house, and when they came back J said he had killed deceased and witness remarked, "If deceased is killed it will go hard with all of you": Held, that the evidence was not only suflicient to sustain a verdict for murder in the second degree, but in the first degree, as the jury might have been justified in finding that defendants were present aiding and abetting J. Freeman, 122–1013.

The deceased, hearing a quarrel between one of his employees and the prisoner, in the night time, went to where they were, when the prisoner stopped and went off a few feet. Deceased approached the prisoner and asked him if he was the man who had been quarreling with the employee, to which the prisoner made no reply. Deceased then placed his hand on the prisoner's shoulder and asked him to come to the light and tell what the trouble was about, when the prisoner immediately stabbed deceased, and jumped back, crying "Hands off": Held, that the evidence was not sufficient to be submitted to the jury on the question of murder in the first degree. Rhyne, 124-847.

The evidence was that the accused and deceased had quarreled and that the latter had made threats, and the only evidence as to the manner of killing was that the accused had concealed himself and waylaid the deceased, striking him as he passed on the head with an axe killing him instantly. The court charged that the crime was murder or nothing, and the jury found the accused guilty of the felony and murder in the manner and form charged in the indictment. The indictment was in the form authorized by the act of 1887: Held, that, upon the evidence, only a verdict of guilty in the first degree was warranted, and the general verdict was in response to the charge of murder in the first degree and determined the degree in accordance with the act of 1893. Gilchrist, 113-673.

The prisoner, coming home late at night, called for something to eat, and, on being given a piece of meat by his wife, threw it at her, when she threw it back at him, causing some grease to get on his face; the wife then went into an adjoining room, and prisoner followed her; loud talking between them was followed by the report of a pistol fired several times; one shot entered

one ear of the wife and came out the other, another entered the back of her head, and another went through her hand; the prisoner was the only person in the room with deceased; one witness testified that when she looked in the room she saw the deceased sitting by the fire and the prisoner at her left side, and that she then saw the prisoner hold the pistol to the left ear of deceased, and then this witness ran; after the shooting was over the prisoner came out of the room with a pistol in his hand: Held, that the evidence was sufficient to sustain a verdict of murder in the first degree. Jones, 145-.

Exceptions to the admission of evidence tending to prove premeditation will not be considered where the record shows there was no conviction of murder in the first degree. Worley, 141-764.

Where the bill charges murder in the first degree, it being in the power of the jury to convict of murder in the first or second degree or of manslaughter, it is as if there were three counts in the bill, and it is settled that, where there are various counts in an indictment, and testimony is offered as to one count only, and there is a general verdict of guilty, the verdict will be presumed to have been rendered upon the count to which the evidence was applicable. Gilchrist, 113-673.

The failure of the judge to explain to the jury the application of the testimony to the theory of murder in the second degree is error. Thomas, 118-1113.

It appeared that the defendant had gone to the house of the deceased in the evening, armed; that he had, in conversation with the deceased, shown two pistols, had remained until 2 o'clock, when the deceased was shot That there was no quarrel immediately before the shooting. That when he fired he said, "I guess that will do you"; laid one of his pistols beside deceased, and remarked, "I reckon you will let me alone now": Held, it was not error to submit the question of defendant's guilt of murder in the first degree to the jury. McCormac, 116-1033.

The pushing of a pin down an infant's throat, whereby death ensues, is killing with a deadly weapon, and if done deliberately and with the purpose of killing is murder in the first degree. Norwood, 115-789.

Revisal, sec. 3631, does not give a new definition of murder, but classifies its different kinds as they existed at common law, theretofore included in one and the same degree; to constitute malice required by the statute to make out a case of murder in the first degree, it is unnecessary to show personal ill-will or grudge between the parties, and it is sufficiently shown when there has been a wrongful and intentional killing of another without lawful excuse or mitigating circumstances. Banks, 143-652.

No particular time is necessary to constitute premeditation and deliberation for the conviction of murder in the first degree under the statute, and if the purpose to kill has been deliberately formed, the interval which elapses before its execution is immaterial. Banks, 143-652.

Evidence is sufficient for a conviction of murder in the first degree under the statute as willful, deliberate and premeditated, which tends to show: That the defendant had threatened to kill deceased in upholding his son in not paying him some money; thereafter they disputed about the amount owed, and defendant threatened the deceased with a pistol; deceased was with his son and the defendant followed the son, struck at him; deceased caught him around the neck and defendant fired upon him several times; then detendant cursed and said he would kill him, and fired again; deceased offered no resistance, and had a gun under his left arm; deceased was fired upon twice, and between the first and second firing walked away from the defendant some twenty steps, and was followed and again fired upon. Banks, 143-

Where there is a conviction of murder in the first degree a failure to charge the jury on the question of manslaughter was not prejudicial to the prisoner. Teachy, 138-588.

When upon the trial under an indictment for murder there is an absence of any evidence tending to establish the crime of manslaughter, and the defendant has been convicted of murder, a mistake in the charge of the court as to manslaughter is harmless error, and the verdict of the jury will not be disturbed on that account. Kendall, 143-659.

Revisal, sec. 3269, authorizing a jury to return a verdict for a lesser degree of any offense on an indictment for a greater, and sec. 3271, empowering a jury to determine in their verdict whether the prisoner is guilty of murder in the first or second degree, apply equally to all indictments for murder, whether perpetrated by means of poisoning, lying in wait, imprisonment, starving, torture, or otherwise. Matthews, 142-621.

In an indictment for murder, where the homicide is shown or admitted to have been intentionally committed by lying in wait, poisoning, starvation, imprisonment, or torture, the law raises the presumption of murder in the first degree, but none the less if the jury convict of a less offense, it is within their power so to do under the statute, and the prisoner has no cause to complain that he was not convicted of the higher offense. Matthews, 142622.

Intentional homicide by poisoning is not always necessarily murder in the first degree. The presumption may be rebutted. Matthews, 142-622.

There was evidence that the prisoner had strong enmity toward the deceased, and that he had several times threatened to kill him; that when they were in the same room the prisoner withdrew, but, on hearing an opprobious epithet, immediately returned, and, after asking whom the deceased meant, seized his pistol and advanced on the deceased who was unarmed and in a reclining attitude, and as the deceased was endeavoring to escape shot him, and as his victim fell helpless before him, he fired another shot, causing instant death, and then pushed aside the interposing arm of his wife, the mother of the deceased: Held, that the evidence was sufficient to warrant a verdict of murder in the first degree. Exum, 138-601.

There was evidence that the prisoner was seen at the corner of the house of the deceased on the day of the homicide; that four hours later he was seen secreting himself under some bushes near the public road a half mile from the house; the tracks leading from the house and to and from the dead body, which was found in a field about a hundred yards from the house, were described by one witness as being those of a number eleven shoe, and that the man who made the tracks was "slew-footed"-that is that he walked with his feet set out in a right and left angle-and the witness said that the tracks of the prisoner were identical with those around the house and near the dead body, and that the prisoner walked with his feet at right angles, and the prisoner made contracdictory statements as to his whereabouts on the day of the homicide: Held, that the evidence was sufficient to be submitted

to the jury. Adams, 136-617.

Where the prisoner has been convicted of murder in the first degree under proper instructions and sufficient evidence as to that degree of crime, an error in the charge as to mitigation from murder in the second degree is harmless. Munn, 134-680

While the jury are required to fix the degree they can not do so arbitrarily, but their verdict must be based upon competent evidence under a fixed rule of law. Cole, 132-1078.

The prisoner, after a slight quarrel with deceased, grabbed deceased with his left hand and made a pass at him with his right, and deceased threw up his hands and hollered to others not to let the prisoner kill him. Deceased then ran and the prisoner ran after him, running about fifteen steps when