service rendered or to be rendered in the transportation of passengers or property subject to the provisions of law than it charges, demands or collects or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions; or shall make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation or locality, or any particular description of traffic in any respect whatsoever, or shall subject any particular person, company, firm, corporation or locality or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever, such person or corporation shall be upon conviction thereof fined not less than one thousand nor more than five thousand dollars for each and every offense.

1899, c. 164, s. 13.

DISCRIMINATION-FREE PASSES.-Section 4 of chapter 320 of the acts of 1891 (Railroad Commission Act), which prohibits the making of a greater charge against one person than against another for like contemporaneous service under substantially similar circumstances and conditions, applies to the carriage of both persons and property without regard to the social, political or business influence or distinction of the person served. Railway, 1221052.

The transportation of any person, except the classes specified in section 23 of the Railroad Commission Act, without charge is unlawful under section 4, the offense being the free transportation and not the issuance of the free pass. Ibid.

The construction placed upon the statute by common carriers and by private individuals and officials will not be considered. Ibid.

It is not necessary to show that there were other persons who paid their fare on the same train with the person who rode on a free pass. Railway, 125-672.

NOT INDICTABLE.-A railroad company is not indictable for charging excessive passenger rates, since the penalty prescribed for such act precludes an indictment. Railroad, 145—.

Sec. 865 (3750). Discriminating against Atlantic and North Carolina Railroad.

If any railroad in North Carolina shall discriminate against the freights received from the Atlantic and North Carolina Railroad, or shall make rates by which, either directly or indirectly, by rebates or otherwise, freights may be delivered at less rate when received from other points than from points along the Atlantic and North Carolina Railroad in proportion to distance hauled, it shall be guilty of a misdemeanor, and shall be punished by a fine of not

less than one hundred dollars for each and every violation thereof. An indictment for the misdemeanor may be found and tried either in the courts where the goods were shipped or delivered, but the court in which the indictment for the offense is first found shall have exclusive jurisdiction.

1889, 3. 358.

Sec. 866 (3844). Running trains on Sunday.

If any railroad company shall permit the loading or unloading of any freight car on Sunday, or shall permit any car, train of cars, or locomotive to be run on Sunday on any railroad, except such as may be run for the purpose of transporting the United States mails, and passengers with their baggage, and ordinary express freight in an express car exclusively, and such as may be run by law, such railroad company shall be guilty of a misdemeanor in each county in which such car, train of cars or locomotive shall run, or in which any such freight car shall be loaded or unloaded, and upon conviction shall be fined not less than five hundred dollars for each offense: Provided, that the word Sunday in this section shall be construed to embrace only that portion of the day between sunrise and sunset; and that trains in transitu, having started on Saturday, may, in order to reach the terminus or shops, run until nine o'clock a. m. on Sunday, but no later, nor for any other purpose than to reach the terminus or shops.

Code, s. 1973; 1897, c. 126; 1879, cc. 97, 203.

This statute contains nothing in its provisions suggestive of a purpose to interfere with interstate traffic, or indicative of any intent other than to prescribe a rule of civil conduct for persons in the territorial jurisdiction of the legislature; and, although to some extent and indirectly affecting interstate commerce, so far as it relates to traïns engaged in carrying freight from one state to another on Sunday, it is not unconstitutional. Southern Railway, 119-814.

The provision that trains shall not run later than 9 o'clock Sunday morning was violated prima facie when defendant's train arrived at Greensboro at 10:25 o'clock a. m. on Sunday, and, if the defense relied upon to an indietment for running trains on Sunday, was that it was necessary to run later than the hour fixed by the statute in order to preserve the health or save the lives of the crew, it was incumbent upon the defendant to prove that the unlawful act was done under the stress of such necessity. Southern Railway, 119-814.

Where the only evidence offered in support of such defense was that water could not be obtained from a tank at a station passed by the train before reaching Greensboro, and that it could not have been obtained by pumping, the well being empty, and it appeared that food and water could have been obtained at any other station passed by the train: Held, that such evidence was insufficient, and the authorities of the railway company should have ordered the train to a siding at a time early enough to preclude all possibility of a necessity for violating the statute. Ibid.

While the state may not interfere with transportation into or through its territory "beyond what is absolutely necessary for self-protection," it is authorized, in the exercise of police power, to provide for maintaining domestic order and for protecting the morals of its people. Southern Railway,

119-814.

Sec. 867 (3675). Live stock, shipping, on Scuppernong river.

If any transportation company or common carrier shall recieve live stock for shipment at any of the landings or shipping points on Scuppernong river, Columbia excepted, between the hours of sunset and sunrise, or shall during the time any live stock may be held for shipment at any landing or shipping point on said river, Columbia excepted, fail to keep the same in a covered pound or inclosure, supplied with necessary food and drinking water, and at all times in full view of the public, such transportation company, common carrier, or the agent of either shall be guilty of a misdemeanor and upon conviction shall be fined or imprisoned, or both, at the discretion of the court.

1903, c. 283.

The regulations of the state board of agriculture as to the transportation of cattle, authorized by laws 1901, chapter 479, are not repealed by prior and subsequent statutes requiring railroads to receive and ship freight, under severe penalties in case of willful failure, as these statutes should be construed as only requiring railroads to receive and ship freight when not forbidden by this or other valid interfering regulations. Railroad, 141-846.

RAILROAD BRASSES.

Sec. 868. Register of purchases; larceny.

Every person, firm, or corporation buying railroad brasses, or any composition metal specially used in the operation of trains, shall keep a register and shall keep therein a true and accurate record of each purchase, showing the name of the person from whom purchased, the amount paid for the same, the date thereof, and also any and all marks or brands upon said metal. The said register shall be at all times open to the inspection of the public; and any person or dealer buying or selling such metals without complying with this statute shall be guilty of a misdemeanor; and any person making any false entry therein shall be guilty of a misdemeanor.

SEC. 2. Every person, firm or corporation, who shall buy or receive any such metals from persons under twenty-one years of age, or who shall buy or receive any such metals after the same

have been broken up and the marks or brands obliterated, shall be guilty of a misdemeanor, and every person buying, receiving or selling, or offering for sale metals broken into small pieces, or so broken as to obliterate the marks or brands, shall be prima facie presumed to have received the same knowing the same to have been stolen.

The omission of the word "forcibly" is not fatal to the indictment when it is charged that the assault was violent and felonious, and that the ravishing was felonious and “against her will." Johnson, 67-55.

An indictment for assault with intent to commit rape, which charges that defendant "feloniously did make an assault, and her the said S then and there did beat, wound and ill-treat, with intent her the said S feloniously and unlawfully carnally to know and abuse," is fatally defective for failure to use words indicating that the intent was to be executed violently and against the will of the prosecutrix. Powell, 106–635.

It is no ground of objection that the name of the person ravished is charged in the indictment as Susan, while her real name is Susannah, when she is generally called Susan. Johnson, 67-55.

Where the indictment sets out the name of the prosecutrix in full, and charges that the prisoner did make an assault and "her" the said prosecutrix then and there violently and against "her" will feloniously did ravish and carnally know, the use of the word "her" discloses with sufficient certainty that the prosecutrix is a female. Farmer, 26 (4 Ired.), 224.

It is not necessary that the indictment should allege that the female ravished was over the age of ten years. Farmer, 26 (4 Ired.), 224.

TWO JOINTLY INDICTED.-Two or more persons may be guilty of the single crime of rape and may be jointly indicted therefor. Jordan, 110-491.

ELECTION. There was evidence tending to show that the prisoner had had carnal intercourse with his daughter, a girl about twelve years old, forcibly and against her will, at various times for nearly two years prior to the finding of the indictment: Held, that it was not error to refuse to compel the prosecution to elect between the different transactions till the close of the state's evidence. Parish, 104-679.

Where there are several counts, each covering separate transactions, punishable in the same way, or only one count, but testimony as to two or more transactions, the judge may, in his discretion, refuse or allow a motion to compel the prosecution to elect, and may determine when the election shall be made, if at all. Ibid.

Where there are several counts in the indictment, drawn merely to meet the different phases of facts that will probably be proven, the court will neither quash nor require an election. Ibid.

An indictment for rape must allege that the act was done forcibly and against the will of the prosecutrix, or words equivalent thereto. Marsh, 132-1000.

Evidence that the prosecutrix had been delivered of a bastard child is competent. Murray, 63-31.

Evidence of the prosecutrix that the prisoner seized her by the throat and threw her down, and "acted with her as a man acts with his wife and had full connection" with her, is sufficiently specific as to the fact of penetration. Hodges, 61 (Phil. Law), 231.

The fact that the prosecutrix had made an indecent exposure of her person to others, the prisoner not having been informed of it, is irrelevant. Henry, 50 (5 Jones), 65.

While a witness as to character may, of his own motion, say in what respect the character of the person asked about is good or bad, the party introducing him can only interrogate him as to the general character of such person; hence defendants charged with rape can not prove by their witness as to character of the prosecutrix that such character was bad for virtue. Hairston, 121-579.

Evidence that the prosecutrix had been the prisoner's concubine, or that he had been suffered to take indecent liberties with her, is not competent merely upon the prisoner's own declaration of such facts. Jefferson, 28 (6 Ired.), 305.

Evidence that the prosecutrix is a strumpet, or that she had had illicit intercourse with other men, if her reputation for such conduct is general, is competent to discredit her, and as tending to disprove the probability of the use of force or fear by the prisoner. Jefferson, 28 (6 Ired.), 305.

Evidence of an offer of the husband of the prosecutrix to compound the prosecution is inadmissible, though the offer is made in the presence of the prosecutrix, since she had no right to interfere in the matter and her assent or dissent could avail nothing. Jefferson, 28 (6 Ired.), 305.

Where the prosecutrix is impeached on cross-examination, it is competent to prove by her brother that the prisoner took her out of bed when she was sleeping with witness, at a time when she had testified that the prisoner ravished her, and that he heard what she told their mother on that occasion, to corroborate her, and also that his mother ordered that the prosecutrix be removed to another bed, as a part of the res gesta. Parish, 104–679.

Evidence that the prisoner and his wife lived amicably together after such intercourse with the daughter did not tend to contradict the prosecutrix, and was incompetent. Ib.

After the solicitor had elected to rely upon a particular transaction when her father, the prisoner, penetrated her person, it was not error to instruct the jury that they could not convict of an assault with intent to commit rape, though the testimony and other transactions tended to prove only that offense. Ib.

The testimony of the mother of prosecutrix in a case of rape, that prosecutrix's brother told her that he saw defendant on top of his sister with his hand over her mouth, and that she was trying to get up, is admissible in corroboration of the testimony of prosecutrix and her brother, they having previously testified to the same thing. Powell, 106-635.

In such case it is the duty of the court to instruct the jury that they could consider such testimony only as in corroboration of that of prosecutrix and her brother, but where the record fails to show whether this was done, it will be presumed that the court gave the proper instructions. Ibid.