The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-12-15
Supreme Court Opinions

(Reported iby Jos. L Seawell)
STATE v. JOS. SMITH, Appellant. (From
Burke.)
Criminal Practice Mol Pros.
Where a 'nolle prosequi with leave"
is entered it is in accordance with the
practice in this State for the solicitor to
thereafter direct the clerk to issue a
capias where the courts authority to do
so was given at the time of the entry.
STATE VS.. J. f. AUSTIN, Appellant.
(From Rowan.)
Larceny. Evidence.
Where, upon the trial of an indict-
ment for larceny of money, it appeared
in evidence that the second day after
defendants Imprisonment bag contain
ing $25 in money was found lying ex-
posed in a public lot, and there was no
evidence that defendant had put the
money there, it was error in the trial to
refuse to charge that the finding of the
money was not circumstance against
defendant.
STATE v. L. R. PETERSON, Appellant.
(From Catawba)
Forgery Indictment. Loss of Forged
Instrument. Evidence. Drunkenness as
an excuse for crime.
An Indictment for forgery need not
allege the loss of the forged instrument,
and in the absence of the instrument
only it's substance need be charged.
Where, upon the trial of an indictment
for forgery it is shown that the forged
instrument has been lost, it is compe-
tent for a witness to give it's substance
from memory.
that defendant was in possession of a
forged note attempting to have it cashed,
the judge properly refused to charge
that there was no evidence to go to the
jury upon the question of defendants
guilt.
Voluntary drunkenness is never an ex-
cuse for crime
The absence of revenue stamp upon
a forged note has no bearing upon the
question of defendants guilt.
Where one is found in possession of
forged instrument endeavoring to have
it cashed there is presumption that
he either forged or consented to the
forging of the instrument and nothing
else appearing he is presumed to he
guilty.
MAMIE FULLER VS.. KNIGHTS OF
PYTHIAS, Appellant. (From Robeson.)
Physician and Patient. Evidence.
Waiver. Practice.
A patient may waive his right to ex-
clude the evidence of his physician con-
corning information acquired by the ply
stefan while attending the patient and
in such event the patient is compelled
to testify.
The practice of admitting evidence out
of it's order and ruling upon evidence
on the assumption that other evidence
had been introduced or would be in
troduced afterwards, is disapproved.
HENRY r. SETTER VS.. l.. A. SETTER,
Appellant. Qfrom Catawba.)
Rehearing. Exception. Divorce. Judg-
ment. Custody of Child.
Defendant appealed from the granting
of plaintiffs motion for divorce q vim
cule upon certificate of opinion of SUI
preme court at February term, 1901, 02S
N. c. 100; Held that the case can be
again conidered only upon petition to re-
hear.
Exceptions not taken upon the trial OF
the cause in the Superior Court and not
embraced in the case on appeal cannot be
raised in the Superior court in rendering
Judgment according to the mandate from
Supreme court.
In divorce proceedings the custody and
maintenance of the child are within the
discretion of the judge.
STATE, APPELLANT, v. LAWSON HAIR
WELL. (From Catawba).
SANDER of Innocent Woman-Indict-
ment.
An indictment Under Section lib of
ho Co5a c1o
man, which charges that the defendant
'unlawfully, willfully and feloniously did
attempt to destroy the reputation" of the
prosecutrix "she being an innocent and
virtuous woman, by calling her damned
bitch and have quarter for you, mean
ing thereby that she was monument this
being said in the presence of third par
ties is fatally defective for failure to
allege that the act was committed in a
"wanton and malicious manner" and the
words uttered are not per Sc criminal I'M
der the statute.
While indictments for statutory Of
fences need not follow the exact Ian
guage of the stafitute the words used in
the indictment must be equivalent to the
words in the statute.
State V. Colvert, IS N. C. 1858 over
ruled.
GEO. H. BROWN EFT AL, APPELLANT,
V. R. G. PLOTT. (From IredelD.
Practice. Appeal. Term Time"
Laches. Waiver.
An appeal under Section 2O39 of The
Code from an order of county commits
sioners granting a change in a public
road, is subject to the same rule in ref