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1. CRIMINAL LAW 755(1) — TRIAL -INSTRUCTION-STATING CONTENTION OF STATE AS TO WITNESS.

In a prosecution for selling liquor, the judge's reference to the expression that "birds of a feather flock together," and statement that the person to whom defendant was charged with selling liquor, having been convicted of unlawful sales previously, would be likely to know who sells liquor in violation of the law, thus merely stating the contention of the state in its own language, and laying no improper emphasis on the contention, were not erroneous.

Appeal from Superior Court, Richmond County; Long, Judge.

Hector Little was convicted of selling liquor, and he appeals. No error.

Fred W. Bynum and Ozmer L. Henry, both of Rockingham, for appellant. James S. Manning, Atty. Gen., and Robert H. Sykes, Asst. Atty. Gen., for the State.

WALKER, J. The charge against the defendant was that he had sold one quart of whisky to W. E. Reynolds, and the principal exceptions were taken to the remarks of the

2. CRIMINAL LAW 1035(3)-APPEAL-RES-judge, in his charge, in regard to the latter,
ERVATION OF GROUNDS OF REVIEW-OBJEC- Who was the state's chief witness.
TIONS TO STATEMENT OF CONTENTION
JUDGE.

Objections to statement by the judge of the contentions of a party should be made to him at the time, so that he may have an opportunity for correction if it is erroneous. 3. CRIMINAL LAW 7552-TRIAL INSTRUCTION-STATING CONTENTION OF STATE AS TO WITNESS.

BY [1, 2] 1. We do not see any merit in the exceptions. When the judge referred to the expression that "birds of a feather will flock together" and "that Reynolds, having been convicted of unlawful sales of whisky before this trial, would be likely to know who sells liquor in violation of the law," he was merely stating what the contention of the state was, in its own language, and laid no improper emphasis on the contention. It was the legitimate argument of the state, in its effort to bolster the testimony of Reynolds, whom it thought needed some propping on 4. CRIMINAL LAW 757(3)-TRIAL-INSTRUC-account of his previous bad record. It was

In a prosecution for selling liquor, the court did not err in stating to the jury what the state had contended in the solicitor's address to the jury, that the chief of police who had testified did not say that the money was handed to defendant by the person to whom he was charged to have sold, etc.

TION STATING DEFENDANT'S CONTENTION.

contended by the solicitor that the state was compelled, in many cases, to resort to such men as witnesses, in order to detect and convict the guilty, as they were apt to know more about such violations of the law than any one else, and for this reason Reynolds was entitled to credence. Objections to the

The court did not err in stating to the jury defendant's contention that the witness to whom defendant was charged to have sold the liquor was discredited by the fact of his admission that he was to be paid for his services as a detective, and so was interested in the verdict. 5. CRIMINAL LAW 553-RIGHT TO WEIGH TESTIMONY-BELIEF OR DISBELIEF OF WITA jury in a criminal case may believe a wit-statement by the judge of the contentions of ness of bad character whom they think is telling the truth, and disbelieve one of good character, if they think he is not stating the truth, since it is the jury's province to weigh the testimony and to sift the true from the false. 6. CRIMINAL LAW 1163(1) — APPEAL PRESUMPTION FAVORING TRIAL

NESS.

VIEW

COURT.

a party should be made to him at the time, so that he may have an opportunity for correction, if it is erroneous. This is settled by the following cases: State v. Foster, 172 N. RE- C. 960, 90 S. E. 785; State v. Merrick, 172 N. C. 870, 90 S. E. 257; State v. Johnson, 172 N. C. 920, 90 S. E. 426; State v. Burton, 172 N. C. 939, 90 S. E. 561; McMillan v. Railroad Co., 172 N. C. 853, 90 S. E. 683.

On appeal from a conviction of crime, where no prejudice to defendant appears from the discharge of certain jurors in another case the day before, the presumption is that such prejudice does not exist.

7. JURY 142-CHALLENGES-RIGHT OF DEFENDANT CHARGED WITH CRIME.

The right of an accused with respect to jurors is one to reject and not to select.

[3] 2. The objection embodied in the second exception is of the same character as the one just considered. The court was only stating what the state had contended in the solicitor's address to the jury, viz.. that the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

chief of police, who had testified, did not say that the money was handed by Reynolds to the defendant, who delivered the bottle of whisky to Reynolds, but the contention of the state was that the circumstances, as shown by the chief of police, corroborated the testimony of Reynolds that he bought the liquor from the defendant with the money given to him by the chief of police. That Baldwin corroborated Reynolds was stated by the court as a part of the contention.

[4] 3. The same may be said of the next objection, except that it is taken to a statement by the judge of the defendant's contention, viz., that Reynolds' own testimony was discredited by the fact of his admission that he was to be paid for his services as a detective, and therefore he was interested

in the verdict.

[5] The court charged that a jury may believe a witness of bad character, who they think is telling the truth, and disbelieve one of good character, if they think that he is not stating the truth. We can find no fault in this instruction. It would seem to be plainly correct. It is the province of the jury to weigh the testimony and to sift the true from the false. State v. Spencer, 64 N. C. 316; State v. Gay, 94 N. C. 814. As to the exception relating to the discharge of certain jurors in another case the day before, we do not perceive how this prejudiced

the defendant.

court, summon, from day to day, of the bystanders, other jurors, or the judge may, in his discretion, at the beginning of the term, direct tales jurors to be drawn from the jury box and summoned, and that on any day the court may discharge those who have served the preceding day, where the regular jury had been discharged under the impression that the court's business was over before defendant's case came up, the court in the exercise of its discretion properly directed tales jurors to be summoned, though one member of the regular panel had not been retained to "build to" pursuant to the former practice. 3. JURY 118-CHALLENGE TO ARRAY-SUF

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JURORS-SELECTION.

Under Revisal 1905, § 1967, as amended by Laws 1911, c. 15, and Laws 1915, c. 210, whether additional jurors should be summoned from the bystanders or by drawing the names from the jury box, assuming that the court had power to do this except "at the beginning of the term," was within the sound discretion of the presiding judge.

Appeal from Superior Court, Richmond County; Webb, Judge.

R. A. Manship was convicted of retailing spirituous liquors, and he appeals. Affirmed. W. R. Jones, of Rockingham, for appelThe Attorney General and R. H. Sykes, Asst. Atty. Gen., for the State.

[6] No prejudice appears, and what does lant. not appear is supposed not to exist.

[7] The right of the accused, with respect to jurors, is one to reject and not to select. State v. Gooch, 94 N. C. 987; State v. Hensley, 94 N. C. 1021; State v. Green, 95 N. C. 613; State v. Jones, 97 N. C. 469, 1 S. E. 680; State v. McDowell, 123 N. C. 764, 31 S. E. 839; State v. Barber, 113 N. C. 712, 18 S. E. 515. The defendant had an unobjectionable jury to try the case, and a fair oppor

CLARK, C. J. The defendant was indicted for retailing spirituous liquors, in six counts, and was convicted on all six.

[1] Exceptions 2 and 3 were to the admission of the testimony of the sheriff that he found, just outside of the defendant's store,

a box of bottles and also a sack full of bot

tunity to acquit himself, and he cannot justly tles, both of which were placed before the

ask for more.

The other objections are merely formal. No error.

(174 N. C. 798)

STATE v. MANSHIP. (No. 402.) (Supreme Court of North Carolina. Nov. 14, 1917.)

1. INTOXICATING LIQUORS 233(2)—ADMISSIBILITY OF EVIDENCE-POSSESSION OF BOT

TLES.

On a trial for retailing spirituous liquors, the testimony of the sheriff that just outside de fendant's store he found a box of bottles and a sack full of bottles, both of which were placed before the jury, and which he testified corresponded in appearance and labels with the bottles which the prosecuting witness testified he purchased from defendant, was admissible.

2. JURY 72(1)-TALESMEN OR ADDITIONAL JURORS-AUTHORITY TO SUMMON.

Under Revisal 1905, § 1967, as amended by Laws 1911, c. 15, and Laws 1915, c. 210, providing that in order that there may not be a defect of jurors, the sheriff shall, by order of

jury, which he testified corresponded in appearance and labels with the bottles which the prosecuting witness testified he purchased from the defendant, which were also before the jury. We can see no objection to this testimony.

[2] The indictments against the defendant were combined, and the jury rendered a verdict of guilty on each count. The court had discharged the regular jury, but, this case coming up, directed the sheriff to sunmon tales jurors as authorized by Revisal, § 1967, amended by chapter 15, Laws 1911, and chapter 210, Laws 1915, which reads, as amended:

"That there may not be a defect of jurors, the sheriff shall by order of court summon, from day to day, of the bystanders, other jurors, being freeholders, within the county where the court is held, or the judge may, in his discretion, at the beginning of the term, direct the tales jurors to be drawn from the jury box used in drawing the petit jury for the term, in

the presence of the court; such tales jurors so drawn to be summoned by the sheriff and to serve on the petit jury, and on any day the court may discharge those who have served the preceding day: Provided, that the judge may, upon his own motion, or upon request of counsel for either plaintiff or defendant, instruct the sheriff to summon such jurors outside of the courthouse. It shall be a disqualification and ground of challenge to any tales juror that such juror has acted in the same court as grand, petit, or tales juror within two years next preceding such term of the court."

It has never been controverted that the judge in his discretion has the power to excuse any juror and to discharge any jury that he thinks proper. It seems that in this case the regular jury had been discharged under the impression that the business of the court was over. This case coming up, the defendant asked for a continuance. But there being no other ground suggested therefor, the court, in the exercise of its discretion, directed tales jurors to be summoned under the above statute, which was passed for this very purpose that "there may not be a defect of jurors." There was long a practice, under the former statute, that the judge should reserve one juror of the regular panel to "build to," based upon the technical idea that the tales jurors should be other jurors, as if they would not be "other" jurors even if that one juror had also been discharged. It was no prejudice to this defendant that one regular juror was not retained. Twelve jurors, freeholders, to whom he entered no exception, sat upon his case and he was duly convicted.

[3, 4] The record states:

"On Thursday evening the court had discharged the regular jury summoned for the week, and on convening of court on Friday morning the defendant moved for a continuance of his case. The defendant's motion for continuance was denied, and, on being forced into trial with a jury, called in and chosen by the sheriff, defendant duly excepted."

This is not a challenge to the array, but we have treated it as such, and find no error. When, for any reason, there is a defect of jurors, the judge is authorized to direct the sheriff to summon "other jurors, being freeholders within the county where the court was held," and "on any day the court may discharge those who have the preceding day." Such matters are properly within the sound discretion of the presiding judge. There is no indication in this record of any abuse of discretion by the judge in the discharge of the regular jury nor in the manner of summoning the tales jurors. The above statute gave him the discretion "at the beginning of the term to direct tales jurors to be drawn from the jury box in the presence of the court." Which method he should resort to rested with the judge. This was not "at the beginning of the term," but, even treating those words as directory only, and not a

restriction on the power of the court, it would have been extremely inconvenient, and would have delayed the court, to have drawn the jurors from the jury box, for they would have come from all parts of the county, to the interruption of their business. The statute gave the court the alternative of summoning the bystanders, either within or without the courthouse.

There is no exception to the charge of the court, and nothing in the record tending to show partiality by the sheriff in summoning the jurors, or any other prejudice sustained by the defendant, and no exception on that ground.

No error.

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203(3)-D18

WATERS AND WATER COURSES
CRIMINATION IN WATER RATES.
ters will be used wherever and whenever in the
A city ordinance, providing that "water me-
judgment of the board they should be attached,"
in the absence of any charge that the meter rate
discrimination because meter rates are charged
is unreasonable, will not be held unreasonable as
against certain consumers and flat rates against
other consumers of the same class, nor because
small consumers are charged by the room and
ter used.
large consumers according to the quantity of wa-

Appeal from Superior Court, Guilford
County; Harding, Judge.

Proceeding by H. S. Richardson to compel the City of Greensboro and others to furnish plaintiff water at a flat rate. From a judgment for plaintiff, defendants appeal. Reversed.

Charles A. Hines, of Greensboro, for appellants. A. S. Wyllie, of Greensboro, for appellee.

BROWN, J. The purpose of this proceeding is to compel the defendants to furnish plaintiff water and sewerage service on what is known as the "flat rate." From the facts agreed it appears that the defendant city is and sewerage system. No separate charge the owner of and operates a municipal water is made for sewerage, as that is a part of the water service system. The rates for water service are computed according to one or the other of two methods, one called the flat and the other the meter rate.

By the flat rate, a consumer's water rent is computed solely according to the number, nature, and character of the faucets or openings in or about his premises, and is a fixed sum, payable quarterly in advance. On the meter rate, a consumer's water rent is based solely on the actual amount of water used at so much per thousand gallons, and is pay able at the end of each and every month.

Upon the failure of a consumer to pay his water rent when due, or within 10 days thereafter, his water supply is cut off and his service discontinued. The greater number of residences in the city of Greensboro are now being furnished water at the flat rate, while about 500 of such residences are being supplied at the meter rate, without respect, however, to any classification.

In December, 1916, plaintiff, a citizen of Greensboro requested defendants to install a meter on his premises, as he preferred to pay for only water actually consumed. This was done at expense of defendants. In May, 1917, plaintiff requested defendants to take out the meter and put him on the flat rate. The defendants refused, informing plaintiff that when a consumer gave up the flat rate and required a meter to be put in, it was the policy of the city authorities to continue such consumer on the meter rate. Plaintiff

contends that such refusal is an unlawful discrimination against him. An ordinance of the city provides that "water meters will be used wherever and whenever in the judgment of the board they should be attached." We see no force in the contention that this ordinance is unreasonable and void. On contrary, it appears to be a very wholesome check upon the flat-rate consumer to prevent the wasteful and extravagant use of water. We think there is nothing unreasonable in requiring a citizen, who has voluntarily given up the flat rate and compelled the defendants to put in a meter, to adhere to the water rate. If he were permitted to change his mind every month, the city could be put to much inconvenience and expense.

There is no claim that the charge for water as measured by a meter is unreasonable, and that method is certainly as fair as can be devised, for under it a customer pays only for what he consumes. If he is wasteful and extravagant in the use of water the loss falls on him, whereas under the flat rate it falls on the city.

Unless the city authorities are permitted to exercise some reasonable control over those who use the flat rate, that system may be grossly abused. These matters are purely administrative, and must of necessity be left to the sound discretion of the municipal authorities.

It is well settled that there is not necessarily any discrimination because meter rates are charged against certain consumers and flat rates against other consumers of the same class, nor because small consumers are charged by the room and large consumers according to the quantity of water used. 4 McQuillin on Mun. Corp. p. 3591.

Co., 153 N. C. p. 535, 69 S. E. 607, 138 Am. St. Rep. 681.

The last case is on all fours with the case at bar, and we can add nothing to what is said in the opinion. Reversed.

(174 N. C. 549) (No. 355.)

CARTER v. KING. (Supreme Court of North Carolina. Nov. 14, 1917.)

1. APPEAL AND ERROR ~233(1)-REVIEWCHALLENGE OF JUROR FOR CAUSE.

to a juror, requiring the party to exercise a For review of denial of challenge for cause peremptory challenge to such juror, he should exercise a peremptory challenge after the peremptory challenges are exhausted, and except, on the ground that they are not legally exhausted, to refuse to allow it. 2. APPEAL AND ERROR 978(1)-NEW TRIAL 42(4)-REVIEW-DENIAL OF NEW TRIAL

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-RIGHT TO SUE.

21-LIBEL OF JURY

For words tending to impeach the integrity and conduct of all the jurors, without specific reference to them individually, who voted a certain way, in a case in which there was a disagreement, one of them may maintain action. 5. LIBEL AND SLANDER 59-MITIGATION OF DAMAGES.

That plaintiff in libel knew the answer disavowed any personal reference to him in the libelous article does not mitigate damages.

Appeal from Superior Court, Rockingham County; Harding, Judge.

Action by J. D. Carter against D. F. King. Judgment for plaintiff, and defendant appeals. Affirmed.

Civil action tried on these issues:

(1) Did the defendant publish of and concerning the plaintiff in a letter to A. L. Brooks, Esq., the words set out in the plaintiff's second cause of action? Answer: Yes.

(2) If so, did the defendant thereby charge the plaintiff with corruption or bribery in the discharge of his duties as a juror? Answer: Yes. (3) What damages, if any, is the plaintiff enAnswer: titled to recover of the defendant? $1,500.

From the judgment rendered, defendant appealed.

A. W. Dunn, of Leaksville, J. R. Joyce, of Reidsville, and Manning & Kitchin, of Raleigh, for appellant. W. R. Dalton and P. W. Glidewell, both of Reidsville, and W. M. Hendren, of Winston-Salem, for appellee.

This subject is fully discussed in Powell BROWN, J. [1] 1. During the selection v. Duluth, 91 Minn. 53, 97 N. W. 450; Shew- of the jury the defendant challenged Juror ard v. Water Co., 90 Cal. 635, 27 Pac. 439; | R. C. Comer on the ground of kinship to the Bldg. Co. v. Water Co., 90 Va. 83, 17 S. E. plaintiff, the juror stating that he was fifth 789, and by this court in Horner v. Electric cousin to the plaintiff. The court held that

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