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In an indictment for murder, where the court upon motion of the prisoner's counsel made an order that all the witnesses should be sent out of the court room and separated, the refusal to allow a witness for the prisoner to testify, who was kept in the court room contrary to the order of the court and without its knowledge, is not ground for a new trial, where counsel merely stated that the witness's testimony was material but did not state to the court below nor to this court in what particular it was material, or what he expected to prove by the witness. Hodge, 142-677.

Both the state and defendant have the right to demand that the witnesses be sent out of the hearing of the court. Sparrow, 7 (3 Mur.), 487.

SEVERANCE.

A severance is a matter of discretion, the exercise of which will not be reviewed in the absence of abuse of such discretion. Finley, 118-1161.

Whether or not a severance will be allowed and the prisoners allowed a separate trial, is a matter of discretion in the trial judge, and its refusal can not be assigned as error. Gooch, 94-987. Collins, 70-241.

A motion for a severance is submitted to the discretion of the trial judge, and his action is not reviewable except in case of gross abuse. Oxendine, 107-783. Underwood, 77–502.

The fact that the court refused a separate trial to a white prisoner who was jointly indicted with two colored prisoners is not assignable as error, since persons jointly indicted can not claim separate trials as a matter of right, and the refusal of such motion is a matter of discretion. Collins, 70-241.

The refusal to grant a severance is a matter of discretion, and not reviewable. Moore, 120-570.

Defendants indicted in a joint bill for an offense have no legal right to a separate trial. The granting of such a motion is a matter in the sound discretion of the trial judge, which is unreviewable. Barrett, 142—565.

The refusal of the court to grant a severance in a criminal case is not reviewable except in cases of gross abuse. Canawan, 142-575.

See also OFFICERS.

SHERIFFS.

Sec. 943 (3790). Sheriff failing to attend tax sale; selling property not liable.

If any sheriff shall fail to attend any sale of lands as required by law in regard to tax sales, either in person or by competent deputy, he shall be guilty of a misdemeanor and liable to a penalty of three hundred dollars, to be recovered by an action in the superior court against the sheriff and his bondsmen. And if such officer or deputy shall sell or assist in selling any real property, knowing the same not to be subject to taxation, or that the taxes for

which the same is sold have been paid, or shall knowingly and willingly sell or assist in selling any real property for payment of taxes to defraud the owner of such real property, or shall knowingly or willingly execute a deed for property so sold, he shall be guilty of a misdemeanor, and be liable to a fine of not less than one thousand nor more than three thousand dollars, or to imprisonment not exceeding one year, or to both fine and imprisonment, and to pay to the injured party all damages sustained by such wrongful act, and all such sales shall be void.

1901, c. 558, s. 6.

Sec. 944 (2811). Vacancy in, how filled; guilty of a misdemeanor.

If any sheriff shall be convicted of a misdemeanor in office, the court may at its discretion, as a part of his punishment, remove him from office; and on any vacancy in the office, created by this or any other means, the coroner of the county shall execute all process directed to the sheriff, until the first meeting of the county commissioners next succeeding such vacancy, when the board shall elect a sheriff to supply the vacancy for the residue of the term, who shall possess the same qualifications, enter into the same bonds, and be subject to removal, as the sheriff regularly elected; and should the board fail to fill such vacancy, the coroner shall continue to discharge the duties of sheriff until it shall be filled.

Code, s. 2071; R. C., c. 105, s. 11; 1829, c. 5, s. 8.

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Sec. 945 (2824). Have custody of jail.

The sheriff shall have the care and custody of the jail in his county; and shall be, or appoint, the keeper thereof.

Code, s. 2085; R. C., c. 105, s. 22.

Sec. 946 (2825). Prevent jail breaking for lynching.

When the sheriff of any county has good reason to believe that the jail of his county is in danger of being broken or entered for the purpose of killing or injuring a prisoner placed by the law in his custody, it shall be his duty at once to call on the commissioners of the county, or some one of them, for a sufficient guard for the jail, and in such case, if the commissioner or commissioners fail to authorize the employment of necessary guards to protect the jail, and by reason of such failure the jail is entered and a prisoner killed, the county wherein whose jail the prisoner is confined shall be responsible in damages, to be recovered by the personal repre

sentatives of the prisoner thus killed, by action begun and prosecuted before the superior court of any county in this state.

1893, c. 461, s. 7.

Sec. 947 (2827). Furnish list of liquor dealers to grand jury.

The sheriff shall lay before the grand jury of his county, at each court, as soon as the grand jury shall be assembled, a list of all persons who may have obtained license to retail spirituous liquors by small measure, within two years previous to said court; which list the foreman of the grand jury, at the close of its session, shall deliver to the clerk for safe-keeping; and any sheriff failing to perform the duty aforesaid shall forfeit and pay to the state ten dollars, to be recovered by the prosecuting officer, in the same manner as the penalties against sheriffs for not returning process.

Code, s. 2087; R. C., c. 105, s. 24; 1825, c. 1272, s. 4; 1850, c. 185.

Sec. 948 (3587). Insolvent taxpayers, failure to publish list of.

If any sheriff or tax collector shall fail to publish a list of delinquent taxpayers in his county as required by law, he shall be guilty of a misdemeanor and fined not less than ten nor more than one hundred dollars.

Code, s. 2092; 1876-7, c. 78, ss. 1, 3.

Sec. 949 (3603). Sheriff or jailer failing to obey commitment from adjoining county.

If any sheriff or jailer shall refuse to obey any order of commitment made by a justice of the peace or other proper officer of an adjoining county in which there is no jail, or an unfit or insecure jail, he shall be guilty of a misdemeanor.

Code, ss. 3457, 3458; R. C., c. 87, ss. 2, 3; 1835, c. 2, ss. 1, 2.

Sec. 950 (3604). Sheriff or other officer failing to return process.

If any sheriff, constable, or other officer, whether state or municipal, or any person who shall presume to act as any such officer, not being by law authorized so to do, refuse or neglect to return any precept, notice, or process, to him tendered or delivered, which it is his duty to execute, or make a false return thereon, he shall forfeit and pay to any one who will sue for the same one hundred dollars, and shall moreover be guilty of a misdemeanor.

Code, s. 1112; R. C., c. 34, s. 118; 1818, c. 980, s. 3; 1827, c. 20, s. 4.

MAILING PROCESS.-Proof that a writ was directed by the clerk to the sheriff of another county, and mailed in due time to reach him in the regular course of the mail, is sufficient to authorize the entering of a judgment for an amercement, nisi, if there be no return of the process. Latham, 51 (6 Jones), 233.

FAILURE TO EXECUTE.-A constable who neglects or refuses to execute criminal process lawfully issued and placed in his hands is indictable. Ferguson, 76-197.

RETURN MADE BY DEPUTY.—A sheriff may be indicted for a false return made by his deputy. Johnston, 2 (1 Hay.), 338.

ONLY ONE BIDDER AT SALE. On indictment of a sheriff for false return to an execution in returning no sale for want of bidders, it appeared that only one person bid at the sale, and the sheriff had been advised that he could not legally sell unless there were two bidders at least: Held, that defendant was guilty, since if more than one bid was necessary the defendant in the execution could always prevent satisfaction by simply having a friend to bid more than the property was worth at the first bid. Johnston, 2 (1 Hay.), 338; Joyce, 2 (1 Hay.), 54.

Sec. 951 (3602). Sheriff failing to return venire facias.

If any sheriff shall fail to duly execute and return any writ of venire facias he shall be fined by the court not exceeding one hundred dollars.

Code, s. 1740; R. C., c. 35, s. 31; 1830, c. 27, s. 2.

Sec. 952 (3788). Officer failing to surrender tax list.

If any sheriff or tax collector shall refuse or fail to surrender his tax list for inspection or correction upon demand by the authorities imposing the tax, or their successors in office, he shall be guilty of a misdemeanor, and imprisoned not more than five years, and fined not exceeding one thousand dollars, at the discretion of the court.

Code, s. 3823; 1870-1, c. 177, s. 2.

Sec. 953 (5253). Penalty on sheriff failing to account with county.

In case the sheriff of a county shall fail, neglect or refuse to account with the county treasurer and assistant committee as above required, or to pay what may rightfully be found due in such accounts, he shall forfeit and pay to the state for the use of the county a penalty of twenty-five hundred dollars. It shall be the duty of the county treasurer, and if he neglect or refuse to perform it, it shall be the duty of the chairman of the board of commissioners to cause an action to be brought in the superior court of the county on the bond of the sheriff against him and his sureties to recover the amount owing by him and the penalty aforesaid. If the sheriff shall fraudulently and corruptly fail to account as aforesaid, he shall be criminally liable thereupon in like manner and with same penalties imposed for such criminal defalcation in section five thousand two hundred and forty-nine.

1905, c. 590, s. 99.

SHIPPING OR SELLING BIRDS.

Sec. 954 (3472). Shipping or selling birds in certain counties.

If any person shall sell or offer for sale, or have in his possession any quail in Forsyth county, during the close season; or shall sell, or offer to sell, or in any way dispose of any quail in Catawba or Iredell counties, which were not killed by hunting and shooting during the open season in those counties; or shall sell or offer for sale, or have in his possession for sale in Buncombe county, any quail, partridge, pheasant, grouse, wild turkey or dove killed in said county, except during the open season, or shall in said county kill more than twenty-five of such birds in one day; or shall sell, offer to sell or buy any pheasant during the close season in Randolph county, unless such pheasant shall have been propagated in an enclosure and killed for his private use; or shall ship or transport or convey any quail or partridge out of Surry, Catawba, Iredell or Alexander counties, or any live quail or partridge out of Swain county; or shall take or destroy any quail or partridge in Catawba or Iredell counties, except by hunting and shooting during the open season, on his own land, he shall be guilty of a misde meanor. The violation of this section shall be punished as follows: Buncombe and Forsyth counties, by a fine not exceeding fifty dollars, or imprisonment not exceeding thirty days. Catawba, Iredell, Swain, Surry and Alexander counties in the discretion of the court.

1905, cc. 305, 173, 343, 251, 334; 1907, c. 626.

SHOOTING ACROSS CURRITUCK SOUND.

Sec. 955 (3784). Shooting rifles across Currituck sound and waters of Dare county.

If any person shall shoot a rifle across or over the waters of Currituck sound, or the waters of Dare county, except in East Lake township, he shall be guilty of a misdemeanor and be fined not less than ten dollars nor more than fifty dollars, or imprisoned not less than ten days nor more than thirty days.

1889, c. 21, ss. 1, 2; 1903, c. 617.

SILENCE OF ACCUSED.

When a man who is at full liberty to speak, and not in the course of a judicial inquiry, is charged with crime and remains silent, that is, makes no denial by word or gesture, his silence is a circumstance to be considered by the jury. Swink, 19 (2 D. & B.), 9.

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