The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-04-26


husband and preceding the funeral the
absence being caused by failure TO de-
liver the telegram, the law does not pre-
sumo mental anguish. But when in such
case mental anguish does result from
failure to deliver the telegram, the fact
may be shown and damages recovered, al
though no relation by blood existed be
tween the sender and sendee.
The law does not regard so much the
technical relation between the sender and
sendee as it does the actual relation that
exists and the state of feeling between
them.
Where telegraph company undertook
to deliver telegram outside of it's
regular office hours, it was held to have
waived regulations as to office hours,
and cannot plead them in excuse of its
failure to deliver the message in time.
WILLEFORD V. BAILEY, appellant
From Union. Affirmed.
Objections to dispositions must be made
in writing and offered before the trial
begins, and Irregularities in the taking
of deposition are deemed to have been
waived where the party Directing was
present before the taking of the depos-
ton and cross examined witnesses and
took no exception to the regularity of
the commission.
The wrong done in seducing a daughter
is a wrong done to her father. An ac-
ton by a father for the seduction of his
daughter is really for the humiliation and
mental suffering inflicted by the seducer,
and the allegation by the father in such
case of loss of service. and personal in
jury, is an "outworn fiction"
Objections TO detached portions of
charge of the court Will not be sustained
where the alleged error is cured by the
context Thus the charge upon the trial
of an action for seduction that if the
jury found that the plaintiffs daughter
was an innocent and virtuous woman and
that the defendant seduced here, and that
the defendant was a man of considerable
wealth. the jury might award punitive
damages and mo verdict they could rem
der would be excessive" is unobjection-
able where the judge also charged in the
same connection that "the amount of ex-
emplary damages should be regulated by
all the evidence and circumstances in
the case and should be based on the
character and conduct of the parties to
the action; that 'the law left the whole
question of the amount of damages to
their discretion, but that they should ex-
ercise that discretion 3ntelligently and
not arbitrarily and that they should
not "act from prejudice or other i'm
proper motive"
About II o'clock at night the judge,
upon being informed that the jury had
not agreed, went to the jury room and
stated that he had been informed that
they had not agreed that the term had
been continued for the trial of the case
and that the term of Arson court should
have opened that morning, and if it was
probable that the jury would agree on a
verdict that night the judge would not
retire, but otherwise he would retire for
the night and continue the term, but
that he would like to know whether it
was probable that the jury would agree
soon. This was done in the absence of
counsel of plaintiff and defendant; Held
not error. although it would have been
better practice to have sent an officer
to make the inquiry.
STATE V. UTLEY. appellant From
Cumberland. No error.
The killing with a deadly weapon be-
ing found by the jury the law implies
malice, and unexplained, it is murder in
the second degree.
In such casef it is incumbent on the
prisoner to prove facts which reduce the
crime below murder in the second degree,
not beyond reasonable doubt, but to
the satisfaction of the jury But it is
harmless error to charge the jury that
such facts must be proved beyond a
reasonable doubt where the evidence
does not tend to reduce the degree of the
crime.
The prisoners evidence was to the eff
feet that on the night of the homicide he
had been drinking and about one hour
before the homicide he had been shooting
his pistol in the office of a hotel ant
just before the homicide in a good hu.
NOR, he showed the night porter che
ball holes in the wall, which he haC
| made; he told the porter he was goine
to have the deceased, who was night clerl
at the hotel turned off in the morning
| he went across the room towards
| the deceased cursng him, call
| ing him vile names and telling him
that he intended to turn him off in thu
morning, to which the deceased replied
don't care If you have me turned off, ant
| the prisoner pointed at him with th'
| finger of his right hand. having his lef
in one of his pockets, but without draw
| ing his pistol and the deceased when tn,
prisoner was eleven feet from him drew
and aimed his pistol at him and there
upon the prisoner drew his pistol and
fired the fatal shot. (This was the pris
oner's evidence.)
| The State offered evidence to show tina
the prisoner had one hour before tn,
! killing, asked the deceased to cash
check for him for five dollars and tn,
deceased said he could not get to TIL
money (Which was locked up in a safe
and thereupon the prisoner cursed him
saying, Il will have it," and at the same
time pulled out his pistol adding, 6.
will nave Mac to fire you in the
morning" and he then shot his pisto
over the deceaseds head. and said imme
diately thereafter that he had not sho
at him, but over him to scare him; pris-
| oner then went up stairs to his room,
where he had some whiskey, and reloaded
his pistol, and asked a companion if he