The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-05-31


If the character of a common carrier
Kenny V. Railroad 80 n. c. Az.
Where. in an action by the carrier to
recover such indemnity, the defendant b.
demurrer admits the liability of the car
rier for injury to its employee-the com
plant having alleged the justice OF the
demand for damages, and payment by the
carrier-the defendants contention that
the carriers liability should have been first
adjudicated by court of competent ju-
risdction cannot be sustained
Expenses for feeding horses attached
should not have been joined in the acton
on the contract of indemnity, but the dc
PENDANT was not prejudiced by the over
ruling of his demurrer on that ground, IS
the amount of the claim must be taxed IN
the costs. Clark's Code g Ed Sec 466.
STATE V. COLE. appellant. From
Vance New trial
Section of Chapter So, Acts 1898, pro-
viding that the jury shall determine from
the evidence whether the crime is muir
der in the first or second degree is not
in conflict with section II of Article l
Of the Constitution. which ordains that
in criminal prosecutions the accused has
the right to be first informed of the ac-
cusation.
To constitute murder in the first de-
gree the same elements are requisite as
existed prior to the Act of 1893, but since
said act generalization and dehberation
are also necessary elements of the crime.
The law implies malice from the use of
a deadly weapon, and the burden is upon
the prisoner to show matter in excuse,
justification or mitigation. But premedi-
tation and deliberation are not implied
tom the use of a deadly weapon, and
must be proved by the State if it asks for
verdict Of murder in the first degree.
While no particular length of time is
necessary to constitute generalization. and
the court will not undertake to prescribe
any arbitrary rule defining the length of
inc. yet the term itself necessarily i'm
plies that there must be some time, how
ever short, between the first conscious
conception and the completion of the pur-
pose or determination.
The evidence in effect was that the
prisoner in company with his son and
several other negroes, all being more or
less under the influence of whiskey, had
entered railroad car reserved for white
people, and upon being notified by the
conductor that they must 90 to the car
reserved for negroes. the prisoners son re-
piled that they would go when they got
ready, but they party finally left the car
after the conductor had gone out; that
the prisoners son caught hold of the con-
ductor and demanded to know why il
was that they were driven around in
this way" when they had bought first
class tickets, and just after the conductor
had explained that it was due solely to a
state law. the prisoner entered and upon
showing a disposition to resent the con-
duptor's action in ordering the parties
from the white car. the colored porter OF
the train touched the prisoner on the
shoulder and said Let Captain explain
whereupon the prisoner struck at the con
ductor with his fists, and upon being
struck by the porter, drew his pistol and
the porter then showed him to the corner
of the car; that the prisoners son and
another party, then pushed the conductor
into the next compartment, and upon The