The news & observer., 1905-09-20

slaughter and to that portion Of the
.Icharge as quoted the defendant ex-
cepted. There were also subsequent
instructions given at request of the
iury that 1.-The defendant introduces
a large number of witnesses. l dc
not remember how many-16 | think
land they said they saw a scuft1e
and the pistol was i'm the hands OF
Joe and Bob Murray; that they dc
| not know who had the pistol when
| this last shot was fired. Now the
| court is of opinion that the main ques-
ton is as to where the pistol was when
it was fired the last time and the
court charged you before, and reiter-
ates now, that if the pistol was taken
away from Mr.. Joe Murray by Mr..
Bob Murray, and you find that to be
| a fact beyond a reasonable doubt,
and he pulled the trigger and fired
the shot that killed Joe Murray then
as the court charged you before he is
guilty either of murder in the second
degree or manSlaughter. To this
charge the defendant excepted as
amounting to a statement, taken with
| the charge before delivered, that the
testimony of the State was positive
and that of the defendant negative.
Held. L. That the rule laid down
| as to the difference between positive
and negative testimony and that the
positive is entitled to the greater
weight is not only a legal maxim but
| founded on truth and Justice; and the
amount of such difference, depending
upon a variety of collateral facts and
circumstances, is a question for the
jury and not for the court
2. The statement of the court in
stating the contentious of the parties
dc ho+ n n
produced nine witnesses who testified
positively as it claims, that the pris-
oner fired the fatal shot and they
were not contradicted," coupled with
the subsequent statement that the
defendant introduced large num-
ber of witnesses don't remember
sixteen / think-and they said they
saw a scuffie that they did not
see the pistol when this last shot was
fired" is not tantamount to charge
by the court that the testimony OF
the States witnesses was positive ana
the testimony of the defendant VIII
nesses was negative.
3. While testimony of defendant S
witness that he did not know who
fired the pistol but that he "only saw
two hands grabbing the pistol, that
both had the pistol" is not OF char-
acter to contradict the charge OF the
court that they did not see the piston
when the last shot was fired, such
inadVertence was in any. event one ol
fact and not of law and cured by
failure of counsel to call the same TO
the attention of the court and nave
il then and there corrected.
State. appellant. VS.. JORDAN Davis
from Pitt. Attorney General for the
State: skinner and Whedbee, for the
defendant. HOl<e. J. No error.
Held: That an indictment for caves
dropping. which fails to charge that
the conduct described was habitual or
facts from which such habit could be
inferred and also fails to charge thal
it was repeated in the hearing OF
divers persons, is fatally defective.
jackson VandifOrd and wife. appel
liant. VS.. j. C. Humphrey and wife,
from Pitt. +. c. Harding and Jarvis
and Blow. for appellants; L. L.
Moore. for appellee. Connor, d.
Affirmed.
Action for cancellation of deed
TO separate estate executed Dy leIle
pIaintiff to defendants. The validity
of the deed was attacked for that
Cd plaintiff was a feme covert
at execution; CD that execution was
obtained by fraud and undue influence,
(3) that the feme plaintift was OF
unsound mind and incapable or exc
cuting a valid conveyance. the de-
PENDANTS admitted coverture but al
legged that at the time of the execu-
ton of the deed the feme plalntllf
had been abandoned by her husband.
The iury found against the plaintiff on
the issues of fraud and mental incaoa-
city. There was evidence tending TO
show that the husband had taken his
belongings, left the house of the wife
and announced that he had gone for
good" From the charge of the court
that if the jury found from the great
er weight of the evidence that at the
time of the execution of the deed the
husband of the feme plaintiff had
voluntarily left his wife and deserted
her with the intention of forsaking
her entirely and never to return. they
should answer the first issue yes,
the plaintiffs excepted and appealed
Held: J. That Code Section 1882
permitting an abandoned wife to
contract and deal with her separate
estate as a free trader) becomes oper-
ative unon abandonment with the IN
tention not to return. and does not de-
pend upon the husband having left the
jurisdiction oc the court.
g While the power of wife to
contract as to her separate property
as a free trader is to be tested by her
right to maintain an action for divorce
for like cause. the six months re-
quired to elapSe before she may bring
an action is for the purpose of possi-
BILE reconciliation and cannot be en-
forced to prevent the conveyance of a
separate estate.
3. Testimony that she left and said
he was not coming back any more.
He carried his things and his tools.
buggy and harness. bed and bedding,
and that he said that he had left
her for good this time" was proper
ly submitted to the jury as evidence
of abandonment.
Nj. q. Tyson vs. j, ". JOyner ct al,
appellant, from Pitt. Skinner and
Whedbee for appellants: Fleming
and Moore for appellee Walker, j.
New Tri..I
Action on bond. A made a bond
payable to b. or order and b. as
commodation endorser assigned same
to c., who paid the facs. less discount,
to A. Later ID. sued upon the note
which bears the reputed Endorsement
Of c., resting the case upon the pro-
duction of the note. The defendant
objected to the bare production of
the note as evidence of endorsement.
I'M II.