The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1900-05-30

money, you neeu 1t more imam the poor
common school children do and we the
Legislature will not let the plaintiff sue
you Can it be that the Legislature can
in this indirect way destroy the plain
tiff's constitutional right? The defendant
having received money that belongs to
the plaintiff, the law presumes that it
received it for the plaintiff upon an i'm
piled contract, and is liable to be sued
for it upon this implied contract. To say
that to prohibit the plaintiff from suing
the defendant for what 1t owes the plain
tiff, is not to impair the obligation of a
contract and not in violation of the Con-
stitution, would be to close our minds to
all reason and to disregard all precedent.
1--WE do not think that the Statute of
Limitations interferes with the plain
tff's right to recover
Commenting upon the first defence
that the fines belong to the town-the
court quotes Article TX, section 5, of the
State Constitution, as above, and adds:
ct must therefore follow that all the
fines the defendant has collected upon
prosecutions for violations of the criml-
nal laws of the State, whether for viola
ton of it's ordinances made criminal by
section 1920 of The Code, or by other
criminal statutes. such fines belong to
the common school fund of the county. 1t
is thus appropriated by the Constitution,
and it cannot be diverted or Withheld from
this fund without violating the Constitu-
ton This is not SO with regard to pen
allies which the defendant may nave
sued for and collected out OF offenders
violating it's ordinances. These are not
penalties collected for the violation or
law of the State, but of town ordnance.
But wherever there was crime imposed
in a State prosecution for misdemeanor
under section $3.50 of The Code, 1t belongs
to the school fund and, as we have said,
must go to that fund
The Supreme court yesterday declined
to grant a new trial to Tom Smith, the
Johnston county negro who, during Christ
mas 1898, killed white man near Selma
and came near killing another, and who is
now in Jail in this city to prevent lynch
ing.
Smith it will be recalled. was convict
ed of the murder in the first degree of
Chas. l.. Cawthorne at August term
1899, of Johnston Superior court. He APP
pealed and was granted new trial. At
the March term 1900, of Wayne Superior
court, the case having been removed to
that county. he was again convicted.
Again an appeal was taken based solely
upon the refusal Of the judge to instruct
the Jury as follows: I'm no aspect of
the case can the jury find the prisoner
guilty of murder in the first degree. for
the evidence at most amounts TO no more
than scintilla.'
M there
was more than a scintila of evidence
and declines to grant another trial, out
makes it's opinion the basis for petition
for communication of sentence with almost
certainty that it will be granted.
After reviewing the testimony on which
the verdict was found. Judge Montgomery
who writes the opinion of the court, says:
THE whole evidence in the case is cal
culated to enlist the sympathy OF any
person who might read it from an un-
prejudiced standpoint
smith had been the superintendent of
his Sunday school in the town OF Selma
for 16 years On the night after Christ
mas of 1898, he was engaged in distribute
ing gifts to the children from the Christ
mas tree at the Sunday school celebra-
ton. He had been at work all the morn
u
being over he and his wife left for their
home, walking, short distance IN the
country. The father and mother or the
prisoner, an aged couple, riding III an OK
cart, were just behind, returning to their
home also short distance out or town
the prisoner and his wife passed three
persons who wore masks conceallng their
faces They each had a womans skirt.
They had been drinking and had liquor
with them. The three masked persons
were Charles Lewis Cawthorne, Graham
Garner and Thomas Winfrey. During the
day they had been discharging fireworks
in Selma and upon being prohibited by
the town authorities from continuing THIS
sport they left the town. One of them
(Winfrey) had in. his pockets two loaded
pistols.
After the prisoner had reached his
home he heard the parties coming in his
direction shooting off their fireworks ana
firing their pistols. Roman candles were
discharged into the trees of the yard or
the prisoner and near his house, and the
maskers threatened to shoot his dog. In
front of the prisoners gate and in the
public road difficulty occurred between
the prisoner and the revelers. cav
thorne was killed and Winfrey dangerous
ly wounded by the prisoner, the weapon
used being large and dangerous knife.
THE testimony of the prisoner tended
to show justification, certainly not more
than manslaughter; while that of Win
frey and Garner and Ellington tended to
show generalization and deliberation on
the part of the prisoner.
Upon a consideration of all the evil
dence, it seems to us that the greater
weight was in favor of the prisoner But
the jury decided otherwise, and the law
has confided that finding to them.
There was evidence. more than
scintilla, on the part of the State, going
to show generalization and deliberation
on the part of the prisoner, and that is
the only question before US.