LETTERS AND TELEGRAMS.

Sec. 623 (3728). Letters and telegrams; wrongfully opening or reading. If any person shall willfully, and without authority, open or read, or cause to be opened or read, a sealed letter or telegram, or shall publish the whole or any portion of such letter or telegram, knowing it to have been opened or read without authority, he shall be guilty of a misdemeanor.

1889, c. 41, s. 2.

INDICTMENT.—An indictment which fails to charge that the letter or telegram was sealed, or that it was published with knowledge that it had been opened and read without authority can not be supported. Bagwell, 107— 859.

LEWD WOMEN.

Sec. 624 (3353). Lewd women within three miles of college.

If any loose woman or women of ill-fame shall commit any act of lewdness with or in the presence of any student, who is under twenty-one years old, of any boarding-school or college, within three miles of such school or college, she shall be guilty of a misdemeanor, and upon conviction shall be fined not exceeding fifty dollars or imprisoned not exceeding thirty days. Upon the trial of any such case students may be competent but not compellable to give evidence. But no prosecution shall be had in such cases after the lapse of six months.

1889, c. 523.

LIBEL.

Sec. 625 (3635). Libel, communicating, to newspaper.

If any person shall state, deliver or transmit by any means whatever, to the manager, editor, publisher or reporter of any newspaper or periodical for publication therein any false and libelous statement concerning any person or corporation, and thereby secure the publication of the same, he shall be guilty of a misdemeanor.

1901, c. 557, ss. 2, 3.

GENERAL REPORT OR RUMOR NO DEFENSE.-Where the indictment charges the publication of an article in which it was alleged that the prosecutor "is called a murderer and forsworn." defendant can not justify by proving that there has been a rumor and general report in the neighborhood that the prosecutor was a murderer and forsworn. Proving a rumor is not proving the truth of the facts alleged. White, 29 (7 Ired.), 180.

EVIDENCE.—Where the indictment alleges the publication of a libelous article charging the prosecutor, a magistrate, with malversation and corruption in office, evidence of other acts of official misconduct by the prosecutor is incompetent. Lyon, 89-568.

In such case the official character of the magistrate may be proved by parol. Ib.

A witness, in such case, may be allowed to refresh his memory by reading the paper containing the libelous article, and may then say that he saw the article in that paper soon after its publication, though he has no recollection of the article apart from the paper. 1b.

INDICTMENT.—If the libelous matter in a production be not direct, but only libelous by allusion or reference, the fact understood must be stated by introduction, and must be pointed at by explanatory innuendoes. Neese, 4 (Taylor's Term Rep.), 691.

VARIANCE. Defendant published a card concerning the prosecutor charg ing him with giving false testimony in order to manufacture public sentiment in his favor, which concluded by saying that that which made the prosecutor depose falsely on the witness stand "is the cause of all this muss.' The indictment omitted the word "all" preceding the words "this muss": Held, that the variance was fatal. Townsend, 86-676.

Where the indictment alleges the setting up in public of a board on which was a painting or picture of a human head, with a nail driven through the ear and a pair of shears hung on the nail, and the proof is that a human head, showing a side face with an ear, a nail driven through the ear and a pair of shears hung on the nail, was inscribed or cut in the board by means of some instrument, but was not painted, the variance is fatal. Powers, 34 (12 Ired.), 5.

CHARGE. Where the indictment sets forth the publication to the effect that defendant published a card in which he stated that he went on the prosecutor's premises for the purpose of searching for stolen property, and that he found it in one of the prosecutor's houses, without averring that defendant thereby intended to charge the prosecutor with stealing his property, it is error to leave it to the jury to say whether such an interpretation should be given to the publication as that it charged a larceny of the property against the prosecutor. White, 28 (6 Ired.), 418.

EVIDENCE-CORROBORATION.-On the trial of a defendant for libel in charging that the prosecutor was a negro living in adultery with a white woman as his wife, testimony that the prosecutor had associated with white men as a white man was competent to prove that he was a white man, either as corroborative or substantive evidence. Sherman, 115—773.

PUBLICATION-WHAT IS.-A libelous letter written by one in this state, who procures another in this state to copy, read and mail it to the prosecutor in another state, is published in this state. McIntire, 115–769.

CONTEMPT.—If parties concerned in a cause are libeled this amounts to a contempt of court. Yancy, 1–133.

Sec. 626 (2012). Notice to newspaper before action.

Before any action, either civil or criminal, shall be brought for the publication, in a newspaper or periodical, of a libel, the plaintiff or prosecutor shall at least five days before instituting such action serve notice in writing on the defendant specifying the article and the statements therein which he alleges to be false and defamatory.

1901, c. 557.

Sec. 627 (2013). Good faith and correction, actual damages recovered; nominal fine.

If it shall appear upon the trial that said article was published in good faith, that its falsity was due to an honest mistake of the facts, and that there were reasonable grounds for believing that the statements in said article were true, and that within ten days after the service of said notice a full and fair correction, apology and retraction was published in the same editions or corresponding issues of the newspaper or periodical in which said article appeared, and in as conspicuous place and type as was said original article, then the plaintiff in such case, if a civil action, shall recover only actual damages, and if, in a criminal proceeding, a verdict of "guilty" shall be rendered on such a state of facts, the defendant shall be fined a penny and the costs, and no more: Provided, that this chapter shall not apply to actions pending on the thirteenth day of March, one thousand nine hundred and

one.

1901, c. 557.

Sec. 628 (2014). Anonymous communications.

The two preceding sections shall not apply to anonymous communications and publications.

1901, c. 557, s. 3.

Sec. 629 (3267). Libel, defense to.

Every defendant who shall be charged by indictment with the publication of a libel may prove on the trial for the same the truth of the facts alleged in the indictment; and if it shall appear to the satisfaction of the jury that the facts are true, the defendant shall be acquitted of the charge.

Code, s. 1195; R. C., c. 35, s. 26.

LICENSE TAX.

Sec. 630 (3787). License tax, failure to pay.

If any person liable for any license tax fail or refuse to pay such tax when demanded by the sheriff, he shall be guilty of a misdemeanor, and punished by fine or imprisonment, at the discretion of the court.

1903, c. 247, s. 87.

MANUFACTURER OF LUMBER.-One who carries on the business of buying timber and converting it into lumber for sale is a manufacturer, and not a trader, within the meaning of the above section, nor within the meaning of the

revenue act requiring merchants and "other traders" to pay a privilege or purchase tax. A trader is one who sells goods substantially in the form in which they are bought, and who has not converted them into another form of property by his skill and labor. Chadbourn, 80-479.

JURISDICTION.—The punishment for violation of the above section is limited to a fine not to exceed twenty dollars, or imprisonment not to exceed thirty days, and the offense created by the statute is therefore cognizable before a justice of the peace. Clarke, 85—555.

THE PENALTY. In addition to the punishnemt by fine or imprisonment the person violating this section is liable to a penalty not to exceed twenty dollars for every day the trade or profession shall be practiced, to be recovered before a justice of the peace in an action to be brought by the sheriff. Clarke, 85-555.

JUSTICE CAN NOT IMPOSE PUNISHMENT OF IMPRISONMENT IN AN ACTION FOR THE PENALTY.-Where the sheriff institutes an action for the penalty before a justice of the peace, the justice can not, in the same action, pronounce a judgment of imprisonment, since imprisonment for debt is abolished in this state except in cases of fraud. Clarke, 85-555.

INDICTMENT. It is not necessary that an indictment for a violation of the above section should allege that the offense was committed more than twelve months before the finding of the bill, since this is a matter of defense to be proved on the plea of not guilty. Clarke, 85-555.

The fact that such trade or occupation exercised in this state is carried on in goods, wares or merchandise which had their origin out of the state can not make it "interstate commerce." French, 109-722.

The exception in the revenue act of 1891 as to "purchases of farm products from the producer" does not discriminate against products brought from other states, but simply exempts purchases of farm products from the producer, wherever raised, from being taken into account in ascertaining the basis upon which the license tax is graduated. Stevenson, 109-730.

The fact that the license tax is graduated by the amount of the merchant's purchases of a certain class of goods, that is, goods not the products of the farm purchased from the producer, and not by the amount of his total purchases, is not imposing unequal taxes on the goods in violation of Const. N. C., art. 5, sections 5, 6, which require uniformity of taxation. Stevenson, 109-730.

One who buys farm products in this state, but not from the producer, and sells the same in this state without paying the license tax required is guilty of a violation of the act. Stevenson, 109-730.

DEALERS IN SEWING MACHINES-CONSTITUTION.-One who sells sewing machines in this state without first having obtained a license therefor, and without having paid the license tax required for the privilege of exercising such occupation, such machines having been manufactured in another state and shipped to the seller on his own account, is guilty of a violation of the revenue act of 1889 (Laws 1889, c. 216, sec. 25), requiring dealers in sewing machines to pay a tax of $250 and obtain a license before engaging in such business. Wessell, 109-735.

The revenue act of 1889 imposing a license tax on dealers in sewing machines is not unconstitutional as in violation of the constitution of the United States providing that congress has power to "regulate commerce among the states." There is no tax laid on the dealings between the foreign manufacturer and the defendant; but the tax is laid on the occupation the defendant is engaged in of selling sewing machines to parties in this state, and it makes no difference whether he has previously obtained the machines from a manufacturer within the state or out of it. Wessell, 109-735.

INTERSTATE COMMERCE.-Where an indictment in the first count charges the defendant with unlawfully carrying on the business of putting up lightning

rods, without license, etc., and in the second count with unlawfully carrying on the business of selling lightning-rods under like circumstances, and there was ample evidence to support on the first count, which is an intrastate, and the charge shows that the conviction was had for the offense, a general verdict of guilty will be sustained, even though a conviction on the second count could not be upheld by reason of the interstate commerce clause of the Federal Constitution. Sheppard, 142-586.

In an indictment for selling patent medicine, etc., without license contrary to Rev., secs. 5150-1, where the jury by a special verdict found that certain citizens of this state gave orders for the medicines on a drug company in another state, which were forwarded to, received, and accepted by the company in that state, and the goods shipped from that state to the defendant, the drug company's agent in this state; that each package was wrapped in a separate parcel with the name of the shipper marked thereon and then packed in one crate and shipped to defendant, who distributed same in original form to the purchaser: Held, that the defendant was not guilty, as he was at the time engaged in interstate commerce. Trotman, 142–662.

WHO IS A MANUFACTURER.—One who carries on the business of buying timber and converting it into lumber for sale, is a manufacturer, and not a trader within the meaning of the revenue act requiring merchants and traders to pay a privilege tax. Chadbourn, 80-479.

TAX ON LIVERY-STABLES.-A tax imposed by municipal government on keepers of livery-stables is not a tax on property, but a tax on occupations or vocations, and is not unconstitutional as being in disregard of the principle of uniformity. Powell, 100-525.

LICENSE TAX IMPOSED BY TOWNS AND CITIES.-The power conferred in a town charter to license persons for the privilege of carrying on trades and to require a price therefor is a police power, but does not give the right to use the license as a mode of taxation for revenue in the absence of a clear intent in the charter. Bean, 91-554.

MERCHANT'S PURCHASE TAX-CONSTITUTION.-There was a special verdict finding that defendants, who were merchants residing in this state, purchased goods and merchandise in other states, which were not farm products, and brought the same into this state and there sold large quantities of such goods and merchandise; that defendants made no purchases of goods, wares or merchandise of any kind within this state; that all of the purchases so made by them out of the state were of articles not specially taxed by the revenue act of 1891, and that defendants did not make any statement of the amount of their purchases out of the state as required by the revenue act: Held, that defendants were guilty under Laws of N. C., 1891, c. 323, sec. 22, requiring merchants who buy and sell goods and merchandise not specially taxed to pay, in addition to the ad valorem tax upon their stock, a license tax of onetenth of one percentum on the total amount of their purchases in or out of the state, except purchase of farm products from the producer. French, 109-.

Such tax is not a property tax, but is a license tax for the privilege of carrying on the business specified, and is expressly authorized by Const. N. C., art. 5, sec. 3, providing that the general assembly may tax trades, professions, franchises and incomes. French, 109-722.

Nor is this mode of taxation forbidden by the fourteenth amendment of the constitution of the United States, which guarantees to all persons the equal protection of the laws. This amendment does not affect the right of a state to adjust its system of taxation in accordance with its own constitution. French, 109—.

Such license tax is not void as being in violation of the Federal Constitution, art. 1, sec. 8, which gives to congress the power "to regulate commerce with foreign nations and among the several states." Interstate commerce is