The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-03-27
LIANT, From Jones. No error.


mandatory.
Where persons drawn to serve as grand
jurors are not disqualified, motion to
quash an indictment found by them upon
the ground of irregularities IN the manner
of their selection, will not be sustained.
The court does not approve the fail
ure to make the payment a prerequisite
to service on the grand jury. but when
it is found. before the jurors are sworn,
that they are qualified in that respect, Il
motion to quash for failure to observe
the strict letter Of the law. will not be
entertained.
On trial of an Indictment for murder
there was a motion to quash for that
the list from which the grand jury were
drawn was revised with unjust discrlmina-
ton against competent persons of the ne
gro race, to which the prisoner belonged,
whereby he was alleged to have been de-
prlved of an impartial trial as guaran-
tecd by the State Constitution and the
18th and 14th Amendments to the United
States Constitution. Suppoenas duces
tecum were issued to the chairman of the
board of commissioners, register of deeds
and sheriff, and after hearing the testi-
mOny the court found that the jury box
contained the names of 430 persons, but it
did not appear. and the court was una
bic TO find, whether any of said persons
were negroes; that there were 528 colOred
males Of age in the county who had paid
their taxes, and there were as many
white males of age in the county whose
names were not in the jury box: that
the jury boxes were revised In June be-
fore the finding of the indictment in Sep
tember-the commissioners selecting from
the tax books, without regard to race
or color. the names of such persons as
they thought were competent; that they
did not make the payment OF taxes pre-
requisite and discussed the qualifications
Of various negroes and white men. and
rejected them because they were regarded
as incompetent; that the SO names drawn
regularly from the box to serve as grand
jurors were all white persons. and that
it appeared before the jury were en-
panelled that each juror had paid his
taxes for 1902; Held. no error i'll over
ruling the motion to quash.
The prisoner (who is colored mani,
while in custody of the sheriff on his
way to the Jail and Just after leaving
the trail, appeared to be frightened by
large crowd of colored people assembled
to attend a "camp meeting" and after
having gone some distance from the crowd
and after the sheriff had assured the pris-
oner Of his protection. the prisoner vol
unfairly made q statement to the effect
that he had killed the deceased in self
defense: Held, that the statement was
admissible.
Evidence in reference to foot tracts is
of little value, unless it is shown that the
person charged with the crime made
tracks at the time similar to those found
at or near the place of the crime. They
are competent. however. in connection
with other testimony and entitled to such
weight as the jury may give.
RILEY ct al, appellants, VS.. PELLETIER.
From Lenoir. Error.
Where, in an action to recover for
wrongful conversion Of rent cotton, it
appeared from the complaint that the
plaintiff was the authorized agent of the
landlord to rent the land the plaintiff
was prima facie proper party, and being
a resident of the county where the land
was situated it was error to remove the
cause to the county where defendant re-
sided. Code. secs. III. 179.
The court in ITS discretion may re-
move the trial "when the convenience of
witnesses and the ends of Justice would
be promoted by the change" and such mo-
ton may be made at any time in the
progress of the cause. The restriction
that the motion to remove must be made
before time Of answering expires, ap-
plies only when the county designated in
the summons and complaint is not the
proper county, and the defendant seeks
to remove as a matter of right. Motion
before the clerk to remove is invalid 1t
must be made before the Judge and no
tice given. 122 n. c., 144.
The requirement that the motion to
remove shall be made before the time
of answering expires has reference to
the time at which the answer should be
filed under the statute or the general rules
of court. and not the special order grant
ing extension of time TO answer. which
is of itself, if asked or accepted by the
defendants, an acceptance of the jurlsdic-
ton and therefore a waiver of the right
70 remove. Shaver V. Huntley, 107 N. c.,
s23, distinguished.
OUTLAND VS.. S. A. L. RAILWAY ap-
pelant. From Northampton. No error
Action for damages for alleged breach
of contract. In October, 1901, the PLAIN
tiff wrote to the General Freight Agent
and to the Division superintendent of
the defendant company, stating that
plaintiff was cutting lumber and would
cut fifty car loads, and requesting them
to furnish him train on the main line
20 load it. The General Freight Agen re-
piled on the 18th of November that he
was prepared to comply with the pialntlfrs
request, subject to rules OF the company
in reference to loading trains on the main
line, and requesting that plalntlh should
state when the train was desired and that
the freight agent would take the matter
up with" the division superintendent.
The plaintiff had cut large quantity OF
lumber prior to November u when the
General Freight Agent notit1ed the
plaintiff that he feared the tram could
not be furnished if the plantlff wished
to ship to points in Pennsylvania ana
there was no offer to furnish tne tralh
until the following February: Held:
Cd That the correspondence cofstltu-
ted a contract on the part OF tie ueIeha
ant to furnish plaintiff the traii. ana
that the statement, in the lettef lroil
defendants General Freight agent tnaC
he would take the matter Up "'Ch the
Division Superintendent when the plain
ARflf sarat