COVENANT. See AMENDMENT. CRIMINAL JURISDICTION. See BASTARDY. JURISDICTION, 4. CRIMINAL LAW. See CRIMINAL PLEADING. EVIDENCE, 9, 10. INDICTMENT. INSTRUCTIONS, 1. Former jeopardy. Where a defendant is tried and convicted of a criminal offense, and a 2. Former acquittal by implication. 31 Where the defendant was indicted for murder in the first degree, tried 3. Same. If, by section 1972 of Gantt's Digest, it was intended to establish a dif. 4. Obstructing highway. Ibid. Ch. 149, Gould's Dig., declaring it an indictable offense to obstruct a 5. Rape. 58 It is not the persistence with which the party accused intended to pros- to instruct the jury that they must find that the accused intended to effect his purpose forcibly and at all events. Dawson v. The State, 116 6. Rape may be committed on a female under the age of puberty, or one so young as not to be capable of giving her consent. Ibid. 7. Self defense. In order to justify the taking of life in self defense, the party must em. ploy all means within his power, and consistent with his safety, to avoid the danger and avert the necessity. McPherson v. The State, 8. Intent necessary to constitute the crime of murder. 225 It is not the intention to use a deadly weapon, but the intention to kill, of which the use of the weapon is evidence, that constitutes the crime of murder; and this distinction should be made clear to the jury in the instruction on this point. Palmore v. The State, 9. Malicious killing. 248 A milicious killing is not necessarily murder in the first degree; it must also be willful, deliberate and premeditated, or committed in the attempt to commit some one of the felonies described in the statute. 10. Reasonable doubt defined and explained. Ibid. By a reasonable doubt it is not intended to exclude every mere possible doubt. Where the jury, after consideration and comparison of all the evidence, are satisfied to a moral certainty, of the truth of the charge, they may convict. 11. Self defense. Ibid. To excuse homicide, it must appear that the danger is not only im. pending, but so pressing and urgent as to render the killing necessary, and that the slayer really acted under the influence of such fears as a reasonable person might entertain, and not in a spirit of revenge. The circumstances of the rencontre, the situation of the parties at the time, their threats and their relative strength, should be considered by the jury. Ibid. 12. Same. Instruction upon. An instruction, that if the deceased by his manner and words manifested an intent, coupled with acts, to kill or inflict bodily harm upon the defendant, and immediately sought to carry the purpose into effect, the defendant, if in the reasonable fear of such consequences, was justified in taking life: Held, too general and un. qualified. Ibid. 13. Burden of proof, instruction, etc. Where the killing is proved, the burden of proving circumstances that justify or excuse the homicide devolves upon the accused, unless they are developed by the proof on the part of the state, or it is manifest that the offense only amounted to manslaughter. An instruction to this effect, however, should be accompanied by a definition of the degrees of homicide. Ibid. 14. Compounding a felony. Compounding a felony consists of taking a reward for forbearing to prosecute a felony. Watson v. The State, 15. Bribery. 299 Bribery is the taking or offering a reward to influence the official con duct of a judge or other person concerned in the administration of justice. Ibid. CRIMINAL PLEADING. See DEMURRER, 1. INDICTMENT. VERDICT, 3. When a defective plea will be aided by the record. When matter of defense, consisting of steps previously taken in the same cause, is defectively pleaded, the court will take judicial cognizance of the facts, and the plea will be aided by the record. Johnson v. The State, 31 CRIMINAL PRACTICE. See APPEAL, 6. 1. Copy of indictment and jury list, service of. Under our statute, service of a copy of the indictment on the accused 1 while he is in prison, and in the absence of his counsel, is sufficient, and the same is true as to the jury list, if, under the code practice, he is entitled to the latter. Hurley v. The State, 2. Jurors, rejection of, etc. 17 The erroneous rejection of a talesman is not a ground for new trial; it is in the discretion of the court to excuse a talesman for any ground deemed sufficient, without prejudice to the accused. Ibid. 3. Objection to the panel should be taken by motion to set it aside. Ibid. 4. To what papers the jury entitled. Upon retiring for deliberation, the jury may take with them, and read, all papers that have been received in evidence in the cause, and it is in the discretion of the court to permit them to take the instructions. 5. Disposition of a defective plea. Ibid. It is the more regular practice for the court to dispose of a defective plea on demurrer, than to overrule it on its own motion; but such an irregularity is no cause of reversal. Johnson v. The State, 31 6. Copy of indictment, when service of unnecessary. A defendant, who is at large on bail, is not entitled to service of a copy of the indictment under the provisions of Gantt's Dig., sec. 1825 Dawson v. The State, 7. Copy of venire, service of, how waived. 116 A failure to furnish the defendant or his counsel with a copy of the venire before trial is no ground for a new trial, where the objection was not raised at the time. Ibid. DAMAGES. See CHANCERY JURISDICTION, 2. PRACTICE, 7. TENDER, 3. TRESPASS, 1. 1. When punitive damages not warranted. Where a trespass is committed through a mutual mistake of the rights of the parties, it will not warrant punitive damages- Walker v. Fuller, 2. Remittitur of excessive damages, how entered. 448 The proper practice, where the verdict is excessive, is to enter a remittitur on the verdict, and take judgment for the balance. 3. Measure of, in trespass. Ibid. When one, against whom an execution is illegally issued, voluntarily disposes of his property at a reduced price, in order to apply the proceeds to the execution, the price received for the property is the measure of damages, and not the actual value, or speculative prices that he might otherwise have received. Ibid. DECREE. See ASSIGNMENT, 1,3. For distribution, certainty in. A decree for the distribution of an estate should set out specifically the property to be distributed. Jones et al. v. Minogue et al. 637 1. ACKNOWLEDGMENT: ment must show. DEEDS. What the certificate of the wife's acknowledg It is not sufficient that the wife executes and delivers a deed, but to make it her act, she must do so without the undue influence of her husband, and must so declare upon privy examination in his absence, and this fact must be shown by the certificate of acknowledgment. Stillwell and wife v. Adams et al. 346 2. SAME: Effect of defect in the certificate of acknowledgment. Where the certificate failed to show the foregoing facts, the court had no evidence whatever upon which to render a decree against the wife. Ibid. 3. Effect of, on unacknowledged and unattested deed. An instruction that the jury must disregard a deed under which the defendant was placed in possession and claimed title, unless they were satisfied that it had been executed in the presence of two witnesses, or acknowledged before witnesses or a competent officer, was erroneous, for if the deed conveyed no legal title it conferred an equitable interest under which he was entitled to hold the possession. Stirman et al. v. Cravens et al. 548 DEMURRER. See EXHIBITS, 1. PLEADING, 1, 10. 1. To indictment. When it will not lie. Matters of defense, not appearing on the face of the indictment, are no ground of demurrer, but must be taken advantage of at the trial. Bass v. The State. 142 |