STATE v. PERRY.

such an agent should, for the purpose of this Statute, be regarded as the owner. I do not think that railroad superintendents and directors have a right to carry concealed weapons at will over the entire right of way of the company, but I do think that a conductor or express messenger, in charge of a train or a particular car, has the right to carry weapons in the manner most convenient for the protection of the lives and property directly committed to his care. In Britton v. Railroad, 88 N. C., on p. 544, this court has held that "the carrier owes to the passenger the duty of protecting him from the violence and assaults of his fellow passengers or intruders, and will be held responsible for his own or his servants neglect in this particular, when by the exercise of proper care the acts of violence might have been foreseen and prevented, and while not required to furnish a police force sufficient to overcome all force when unexpectedly and suddenly offered, it is his duty to provide ready help sufficient to protect the passenger against assaults from every quarter which might reasonably be expected to occur under the circumstances of the case and the condition of the parties"-citing Railroad Co. v. Burke, 53 Miss., 200; Railroad Co. v Hinds, 53 Pa. St., 512; Railroad Co. v. Pillow, 76 Pa. St., 510; Flint v. Transportation Co., 34 Conn., 554; Thompson on Carriers, 303.

If a railroad company or any other carrier is held to such a high degree of care, it should have all the powers necessary and proper to fulfill this obligation. As the maxim respondeat superior is rigidly applied, the agent must have the powers and authority of the owner in the protection of its property and the performance of its duties The same rule would apply to express messengers, but under this rule the messenger would not be allowed to carry his concealed weapon outside of his car, or the conductor beyond the

STATE v. ASHFORD.

limits of his train or the platform immediately adjacent thereto. Mail agents are, apparently, protected by the very terms of the Act, being "civil officers of the United States in the discharge of their official duties." For these reasons I think that a verdict of not guilty should be ordered.

STATE v. FRANK ASHFORD.

Indictment for Obtaining Money Under False Pretences— Variance-Appeal-Error in Record.

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1. Section 957 of The Code authorizing this court to give such judgment as it shall appear, on an inspection of the whole record," ought to be rendered, refers to such matters only as are necessarily of the record, as the pleadings, verdict and judgment; hence, where there were no exceptions on the trial, the fact that the indictment charged the defendant with obtaining " under false premoney tences, while the proof was that he obtained "goods," is not ground for reversal by this court of the judgment against the defendant.

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2. A general exception, without specifying error, will not be considered by this court.

INDICTMENT for obtaining money under false representations, tried before Coble, J., and a jury, at Spring Term, 1897, of ANSON Superior Court. The defendant was convicted and appealed.

Mr. Attorney General Zeb V. Walser, for State.
Mr. H. E. Faison, for defendant (appellant).

FAIRCLOTH, C. J.: The defendant was indicted for obtaining "money" under a false representation and the proof was that he obtained "goods and merchandise" under

such representation.

STATE v. ASHFORD.

There were no exceptions, at the trial. After verdict the defendant moved in arrest of judgment. On the argument here it was insisted that the court, by looking through the whole record, would see that the judgment was such as should not in law be rendered under The Code, Section 957. No error was pointed out to the court by the defendant. The point made is that money was charged in the indictment and goods and merchandise only were shown by the proof. The above Section refers only to such matters as are necessarily of the record, as the pleadings, verdict and judgment. If error in these matters is apparent, the court ex mero motu will arrest the judgment. When other matters are relied upon, they must be pointed by an exception on the trial or in the case on appeal. State v. Cowan, 29 N. C., 239; State v. Potter, 61 N. C., 338; State v. Jones, 69 N. C., 16; State v. Craige, 89 N. C., 475. A general exception, without specifying error, will not be considered in this court. Grant v. Hunsucker, 34 N. C., 254; Thornton v. Brady, 100 N. C., 38; McKinnon v. Morrison, 104 N. C., 354, and numerous cases cited.

Affirmed.

STATE v. BOGGAN.

STATE v. THOMAS BOGGAN.

Indictment for Carrying Concealed Weapons-Practice-Evidence-Election.

1. While the rule is that where the State charges one offence and proves other offences of the same kind, the defendant may require an election at the close of the State's evidence as to which it will rely upon, yet where the same offence is proved at different intervals by different witnesses, he is not entitled to demand an election on the part of the State; hence,

2. On a trial for carrying concealed weapons the State may show that defendant was seen at different places, by different witnesses, at short distances apart.

INDICTMENT for carrying concealed weapons, tried before Coble, J., and a jury, at Spring Term, 1897, of ANSON Superior Court. The defendant was convicted and appealed.

Mr. Attorney General Zeb V. Walser, for the State.
Mr. R. T. Bennett, for defendant (appellant).

FAIRCLOTH, C. J.: The defendant, being indicted for carrying a concealed weapon on his person, was seen with the pistol at three different places on the railroad track by at least three different witnesses at short distances apart. At the close of the State's evidence, the defendant made a motion that the State be required to elect on which of these charges it relied. This was refused and the defendant excepted.

The rule is that where

The exception is not available. the State charges an offence and proves other offences of the same kind the defendant may require an election at the close of the State's evidence, but where the same offence is proved at different intervals by different witnesses, he is not entitled to an election on the part of the State. This

STATE v. MELTON.

would be an election of evidence and not of different offences. If that was allowed the defendant might be prosecuted for the several offences, when he had committed only one. State v. Williams, 117 N. C., 753; State v. Parish, 104 N. C., 679.

No Error.

STATE v. ALLEN MELTON.

Indictment for Bigamy-Bigamy-Evidence- Wife Competent Witness to Prove Marriage-Record of Marriage—Admissions-Witness-Slave Marriages-Exception.

1. In an indictment for bigamy the first wife of the defendant is a competent witness to prove the marriage, public cohabitation as man and wife being public acknowledgments of the relation and not coming within the nature of the confidential relations which the policy of the law forbids either to give in evidence.

2. The record book of marriages for the county is admissible to prove a marriage.

3. The original marriage license signed by the justice solemnizing the marriage is admissible to prove a marriage, though neither the justice nor the witnesses attesting the certificate as being present at the marriage are present in court.

4. In the trial of an indictment for bigamy, the admission by defendant of his former marriage is competent evidence against him, though such statement may have referred to the relations which he and his former wife sustained to each other, as man and wife, in slavery times.

5. Where a defendant charged with bigamy, upon the preliminary examination before a justice of the peace, and after being cautioned that his statements could be used against him, stated that he had been married to his former wife while a slave in South Carolina, had children by her and was subsequently married in North Carolina to his present wife, such admissions were competent to go to the jury, on his trial in the Superior Court, as to his guilt.