The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-05-08

cation nor of any fact which could
be considered in mitigation, excuse or
justification. The court told the jury
that the prisoner having admitted that
he killed deceased with deadly weap-
on, there were not in evidence any
facts or circumstances to rebut the
presumption of malice and prisoner
was guilty of at least murder in the
second degree; Held no error.
Prisoner cannot challenge a juror.
VIII has been selected and sworn, eX-
cept by consent of the State, unless
the cause of challenge arose after the
juror was sworn. The refusal in this
case to set aside the verdict because
one of the jurors was not twenty-one
years old is not reversible error, as
the objection came too late.
State VS.. Clark, appellant. From Ashe.
New trial.
Where upon trial of an indictment
for murder the evidence was that
while the deceased and M. were drunk
and fighting, the deceased threw M to
the ground and held knife over him
and threatened to cut his throat, ana
while in this position the prisoner IN
terferred to save NJ whereupon the
deceased advanced on prisoner with
his knife, prisoner 'retreating, ana
when deceased attempted crap prls-
him with the other in which he held
the knife, the prisner shot deceased
and he died in about one month from
the wound inflicted; that deceased al
thugh drunk was not inert.
Held, error to instruct the jury that
if they were satisfied beyond rea-
sonable doubt that prisoner slew de-
ceased with a deadly weapon and are
in doubt as to the circumstances OF
mitigation of excuse offered by pris-
oner or derived from the States evil
dence. and from the whole evidence
were in doubt whether the deceased
when he was slain was making felo
NOUS assault upon the prisoner, and
whether the prisoner had reasonable
ground to believe that deceased was
making a felonious assault upon him,
prisoner was guilty of murder in the
second degree.
The instruction that if the manner
of tn deceased was such as to cause
the prisoner to reasonably believe that
he was about to be slain or receive
enormous bodily harm, the prisoner
had the right to stand his ground ana
if necessary to kill the deceased, with
out retreating provided the assault
on prisoner was felonious or with fe-
lonious intent, was erroneous. 1t was
not necessary that the assault should
have been felonious.
In such case if the purpose OF the
deceased was to inflict great bodily
harm or even if the PRISON. reasona-
| bly, believed that such was the pur-
pose of tn deceased, the prisner aad
the right to defend himself.
Clark, c. j., dissenting.
JcllicO Coal Co. vs.. AShcvillc Ice ana
Coal Co. appellant. From Bum
| cOmbc. New trial.
The rule of full performance of a
| contract before recovery, as where the
promises are dependent and one is a
| condition precedent to the other, does
| not apply where there has been fail
ure of one of the parties to comply
| strictly with his promise, but the oth-
| er party has derived benefit from the
| extent to which the defaulting party
cmplied, and where full performance
is not made a condition precedent to
| payment. In the case of such partial
performance the law implies prom
Use of the party benefited to pay for
what he has received, and allows him
| to recover any damages sustained by
the breach. hamblee VS.. Baker, 95 n.
IC., 90; Simpson VS.. Railroad, III n.
c.. 701; Germany. Bellamy, 80 n. c.,
496.
Plaintiff shipped coal to defendant
under a contract between them where
by the plaintiff agreed TO sell to the
defendant at a certain price, all the
coal that might be required by the
defendant between April IL, 1898, and
May 1, 1899, 1.-The shipments to be
made promptly when ordered unless
prevented by strikes or other causes
beyond the control of the plaintiff
payments to be due succeeding each
months shipment, and the defendant
agreed to handle no other first-class
coal except that purchased from the
plaintiff; Held, in an action to recover
the price of the coal shipped:
l. That the plaintiffs failure tt
| comply strictly with it's promise as
to shipments did not preclud it's righ
to recover the amount due for snip
ments. made especially in view OF the
provision that payments were to be
due each month for shipments dur
ing the month preceding, and that th'
defendant was entitled to damages ac
cruing from plaintiffs failure to shll
as agreed.
| 2 The contract being to furnish {
stipulated quantity of coal at hXei
lprice without reference to other con
tracts made or to be made by plalnulf
land subject only to failure from cause
lbeyond plaintiffs control, the PLATA
tiff is not exempted from damage 10
failure to ship as agreed by reason
lcontracts with other purchasers