25th, when she returned to her husband's home, where she remained until her death on November 15th. It is admitted that she was skillfully treated while in the hospital of the defendant, and the only evidence of negligence is that on two occasions, during a heavy rain, water beat through the window onto the floor of the room where she was. The first of these occasions was about the 1st of September and the plaintiff's witness describes this as follows: "It was during a heavy rainstorm; the wind was blowing. While the rain was still falling and the wind still blowing they wiped it up. It stayed on the floor until we could get it up; don't know how many minutes." And the second by the plaintiff, who says: "That was a heavy rain that day; blew in the window. It wasn't no hard storm. The wind was coming from the northeast; came right against that window." This is an experience common to all householders, and which cannot be averted by the exercise of the greatest care. If, however, there is evidence of negligence, it is purely conjectural that this negligence had anything to do with the death of the plaintiff's wife. The first rain, occurring about the 1st of September, did not injure her, because the plaintiff testifies that the second rain occurred on the 10th of September, and that he went back to see his wife on the 14th of September, and he says: "She was looking all right up until that time that I went there; she wasn't doing so well that day." According to the evidence of both witnesses who testified as to the water on the floor, the pears, however, that the wife who died was his second wife, and that he married her 2 months after his first wife died. It also appears that he married a third wife 4% months after the death of his second wife, and surely her society and services are a full compensation for the loss of the services and society of his second wife. (175 N. C. 767) STATE v. GRIFFIN. (No. 91.) (Supreme Court of North Carolina. Dec. 23, 1917.) 1. SODOMY 1-MODE OF COMMISSION-STATUTE "CRIME AGAINST NATURE.' Defendant, who took the penis of a boy into his mouth, violated Revisal 1905, § 3349, denouncing the crime against nature with man or beast, without defining it, since the "crime against nature" includes all acts of a bestial degraded sexual desires are sought to be graticharacter, like sodomy and buggery, whereby fied. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Crime Against Nature.] 2. SODOMY1 CRIME AGAINST Nature — PUBERTY. In a prosecution for taking the penis of a boy into the mouth, the court properly refused to charge that the defendant's having married in his youth and raised a large family would be evidence in his favor, etc.; the charge assuming facts which were matters in evidence. Appeal from Superior Court, Vance County; Whedbee, Judge. W. L. Griffin was convicted of the crime water did not reach the bed on which his wife was, and it only remained upon the floor aagainst nature, and he appeals. No error. few minutes. The plaintiff testifies that after she went back home she was sometimes better and sometimes worse; that she did not complain of any pain in her chest until about a week before she died; and that he did not call a physician to her until Monday before her death, and this physician was not introduced as a witness. Under these circumstances a jury could do no more than guess as to what caused the death of the plaintiff's wife. T. T. Hicks, of Henderson, for appellant. The Attorney General and R. H. Sykes, Asst. Atty. Gen., for the State. BROWN, J. The evidence for the state tends to prove that defendant offered Jimmie Mustian, a boy nine years of age, $5 to go with him into a neighboring cornfield in the suburbs of Henderson and let defendant have intercourse with the boy by the mouth. The boy went with defendant, who took the boy's penis in his mouth and continued the act for I cannot say that there is no evidence of damage, but it is slight. The plaintiff tes-about five minutes, when he desisted. He tifies: "She was a stout, handy woman: did her washing; her own ironing; kept up all her place; worked her garden; tended to the office some: sold the machines when I'd be away. She did the cooking and housekeeping." This furnishes evidence that the wife was an industrious woman, who did much to maintain the plaintiff; but he is not suing to recover damages for the wrongful death, for the reason that he waited more than a year before the commencement of this action, and he seeks to recover only for the loss of the services and the society of his wife. It ap did not pay the boy, who then complained of the offense. The defendant's evidence tends to prove that he is 52 years of age and has a wife 42 years of age; that they have seven children from 27 to 7 years old; that he has been a man of good character, except for getting drunk, and has never been accused or suspected of such crime before this. The defendant testified: "That he was drunk that afternoon, and the only recollection he had after about 3 o'clock was of lying on the ground in the cornfield in the dark, and of a boy 'peeing' in his face; and that the next thing he knew was on coming! D. 426, 128 N. W. 580. Another case exactto himself in the jail; that he had never done ly on all fours with the one at bar is State such a thing as he was accused of." The defendant at the close of the state's testimony, and again at the close of all the testimony, demurred and asked his honor to hold: (1) That the crime is not complete upon the testimony, since the law contemplates the insertion of the private parts of the defendant into the person of the pathic or other party to make out the crime, and that the insertion of the penis of the boy into the mouth of the defendant does not constitute the crime. (2) That the statute and the nature of the case require that to constitute the crime the party of the second part must be capable of an emission, which a boy of 9 years is not." The motion was denied and the defendant excepted. [1] We think the demurrer was properly overruled. The statute reads as follows: "If any person shall commit the abominable and detestable crime against nature, with mankind or beast, he shall be imprisoned in the state's prison not less than five nor more than sixty years." Revisal of 1905, § 3349. The statute does not define the crime against nature, but it has been done by the courts, and, in declaring what indecent and unnatural acts come within the denunciation of the law, the courts have differed to some extent, as pointed out by Mr. Justice Allen in State v. Fenner, 166 N. C. 248, 80 S. E. 970. In that case it is held that having carnal knowledge of a man by inserting the sexual organ of the defendant in his mouth is an indictable offense under the statute. The only difference in that case and this is that this defendant took the boy's penis in his mouth, and undertook by that unnatural and indecent method to gratify a perverted and depraved sexual instinct. We think the one method is as much a crime against nature as the other. While the crime against nature and sodomy have often been used as synonymous terins, our statute is broad enough to include in the crime against nature other forms of the offense than sodomy and buggery. It includes all kindred acts of a bestial character whereby degraded and perverted sexual desires are sought to be gratified. The method employed in this case is as much against nature, in the sense of being unnatural, indecent, and against the order of nature, as sodomy or any other bestial and unnatural copulation. It is the identical act for which the accused was convicted in Honselman v. People, 168 Ill. 175, 48 N. E. 304, which is cited and approved in Kelly v. People, 192 Ill. 119, 61 N. E. 426, 85 Am. St. Rep. 323. Under a statute similar to ours the Supreme Court of South Dakota declared that the words "crime against nature," not only included the common-law crime of sodomy, but any kind of unnatural copulation by the mouth, or any other kind of unnatural car v. Start, 65 Or. 178, 132 Pac. 512, 46 L. R. A. (N. S.) 266, where the court also holds that both parties, and all who are present aiding and abetting the act, are guilty. State v. Vicknair, 52 La. Ann. 1921, 28 South. 273, holds that the act committed with the mouth is included in the "crime against nature" and that it is immaterial which of the parties committed it. "Whether he was agent or pathic is immaterial. Even those who are present, aiding and abetting the offense, are all principals." Other pertinent cases are: Herring v. State, 119 Ga. 709, 46 S. E. 876; Glover v. State, 179 Ind. 459, 101 N. E. 629, 45 L. R. A. (N. S.) 473; Ausman v. Veal, 10 Ind. 355, 71 Am. Dec. 331; Means v. State, 125 Wis. 650, 104 N. W. 815. [2] The second ground of demurrer is also untenable. It is not necessary that the boy should have attained the age of puberty so as to be capable of an emission. Such a construction of the law would permit such degrading practices to be carried on with impunity with those whose tender years and inexperience render them ignorant of their evil effects. The statute aims to protect the young and innocent as well as to punish the hardened criminal who seduces them into such filthy and detestable conduct. [3] Defendant's counsel contended and argued to the jury, and asked the court to charge, that the crime being a sexual one would naturally appear and be practiced by defendant, if at all, soon after attaining puberty, and in youth and in young manhood; and that one guilty of it would naturally be averse to matrimony and to woman and to the natural relations of the sexes; and that the defendant's having married in his youth and reared a large family would constitute evidence to be considered by them and in defendant's favor and in support of his denial that he had been guilty of the crime charged. This prayer could not well be given. It assumes certain facts and conditions to be true which are matters in evidence and solely for the consideration of the jury. These matters were properly argued to the jury, and the defendant had the full benefit of them. It was for the jury and not the judge to draw the proper inferences from and give the proper weight to them. We regret that the importance of this question, covering as it does a matter wherein the courts of other states are in conflict, renders it necessary to soil the pages of our Reports with the discussion of a subject so disgusting. The learned and humane judge who tried this case seems to have been impressed by the defendant's evidence that he was so drunk that he was unconscious of the act charged against him, for he imposed the minimum sentence of the law. It is to be ment for the defendant's unfortunate wife [ing the same, and some of the circumstances and children, Their sufferings cannot be incident to the inquiry, the findings of the mitigated. court are as follows: No error. (175 N. C. 743) STATE v. LITTLE. (No. 405.) Supreme Court of North Carolina. Dec. 23, 1917.) 1. CONTEMPT ~31 INHERENT POWERS OF COURT-STATUTE. Revisal 1905, §§ 939-945, regulating proceedings "for contempt and as for contempt," purports to confer on the courts all the inherent powers to attach for contempt that were recognized by the common law as essential to the due and orderly exercise of their jurisdiction and functions. 2. CONTEMPT 45-RIGHT TO REMOVAL OF HEARING. In a proceeding for direct contempt, tending directly to interrupt the court proceedings, defendant is not permitted, as a matter of right, to remove the hearing before another judge. 3. JURY 21(4) - RIGHT TO JURY TRIAL CONTEMPT PROCEEDINGS. In a proceeding for direct contempt, tending directly to interrupt the court proceedings, defendant is not entitled as of right to trial by jury. 4. CONTEMPT 66(2)—RIGHT OF APPEAL. In view of Revisal 1905, § 939, as to contempt, a defendant in a liquor selling prosecution, adjudged guilty of direct contempt because of his assault upon a witness against him, could not appeal from the sentence imposed on him; his remedy, if the court was without jurisdiction, being by habeas corpus. "From all the evidence the court finds as a fact that the defendant Little is the person who assaulted Reynolds, who was a witness against him; and the court also finds as a fact that his object and purpose was to defeat or impair and the state in the indictments against him in prejudice and delay the rights and remedies of which Reynolds was a witness against him; and the court finds, also, the fact that his acts and conduct did tend to impede and hinder and interfere with the rights and remedies of the state, and caused the court delay in the transaction of the business at this term of the court, and to impair the respect and authority for the proceedings of this court. That after respondent made the assault on Reynolds, during the term, respondent was tried in two of the cases against him, and was convicted and sentenced in one case and acquitted in one, and two others were tried in one case for retailing also and was continued. His brother, Hector Little, was convicted and sentenced. Reynolds was a witness against both of them. The court finds that the defendant has been guilty of contempt of the court and of its lawful orders, process, and proceedings, and it so adjudges respondent to be in contempt of court, and adjudges that he pay a fine of $100 and that he be imprisoned in the county jail for a period of 30 days." There was ample evidence to support such findings, and we are of opinion that the court correctly adjudged the defendant guilty of direct contempt and administered summary punishment for the offense. [1] It is thus far understood, and has been not infrequently decided, that our statute, Appeal from Superior Court, Richmond Revisal, c. 17, §§ 939-945, inclusive, regulatCounty; Long, Judge. HOKE, J. It appears, from the findings of fact which accompany the case on appeal and are a part of it, that, at the criminal term aforesaid, indictments were pending against defendant for illegal traffic in spirituous liquors, and that a brother of defendant, Hector Little, was also indicted for similar offenses, and that a principal witness against these defendants was one W. E. Reynolds; that on Tuesday night of the term, about 9 p. m., before the trial of the cases, at a café in the town of Rockingham, near the courthouse and near the hotel where the judge was staying, the said witness was violently assaulted and severely injured by the present defendant, as the witness was endeavoring to go from the café to his boarding house; the brother Hector and a young man named Morgan, who was driving the car of defendant, being the only persons present at the time. In ing proceedings "for contempt and as for "That the provisions of section 939 of said 648), were broad enough to extend to and include chapter, subsections 1 and 3 (Code of 1883, § and did include all cases of disorderly conduct, breaches of the peace, noise or other disturbance near enough and designed and reasonably calenthen engaged in the administration of the state's lated to interrupt the proceedings of a court justice and the dispatch of business presently before it." McCown's Case was one where a citizen, angered because he considered a sentence just imposed upon a prisoner convicted of manslaughter was too light, for that reason made an assault on the presiding judge at his hotel during a recess of the court and before adjournment. The judgment, imposing summary punishment for contempt, was upheld, not so much because the assault was made on the person of the judge, but because, on the facts presented, it was a breach of the In regard to the person actually guilty of peace designed and calculated to impede, emthe assault, the purpose and motives prompt-barrass and obstruct the present adminis tration of the state's justice in causes then | tempt," under some special provisions of the pending before the court, and a perusal of statute on that subject, does not impair or that well-considered case, and many of the in any way interfere with the powers of the authorities cited, will show that the position court to deal summarily in cases coming alextends its protection to all officers of the so within the sections appertaining to direct court, jurors, attorneys, and others who in contempt. And the same considerations the line of official duty are assisting the which justify the imposition of summary puncourt in the present dispatch of its business, ishment afford the basis for our decisions to and to all witnesses who are in attendance the effect that, in cases of this character, under subpoenas to give evidence in causes breaches of the peace, noise, or other dispending before it. State v. Moore, 146 N. C. turbance directly tending to interrupt the 653, 61 S. E. 463; In re Gorham, 129 N. C. proceedings of the court, neither an appeal 481, 40 S. E. 311; In re Deaton, 105 N. C. nor trial by jury nor, as a matter of right, 59, 11 S. E. 244; State v. Mott, 49 N. C. a removal of the hearing before another 449; Ex parte Summers, 27 N. C. 149; Com-judge, is permissible. It would present a monwealth v. Dandridge, 2 Va. Cas. 408; | humiliating exhibit of helplessness if a court, Cartwright's Case, 114 Mass. 230; State v. holding a term and engaged in the present Steube, 3 Ohio Cir. Ct. R. 383; In re Healey, 53 Vt. 694, 38 Am. Rep. 713; People v. Wilson, 64 Ill. 195, 16 Am. Rep. 528; Ex parte McLeod (D. C.) 120 Fed. 130; United States v. Anonymous (C. C.) 21 Fed. 761; United States v. Patterson (C. C.) 26 Fed. 509; Ex parte King, 7 Vesey, 315; Ex parte Barrow, 8 Vesey, 535; Williams v. Johns, 2 Dickens, 477. Thus in United States v. Patterson, case of an assault on an attorney, Hammond, Judge, said: "It [this principle] protects parties, jurors, witnesses, the officers of the court, and all engaged in and about the business of the court even from the service of civil process while in attendance, etc." dispensation of the state's justice, could have its attorneys assaulted, its jurors bribed, or its subpoenaed witnesses, intimidated or beaten, and find its orders, made in the effort to protect them and to enforce respect and obedience to its authority, stayed till they could be reviewed on appeal. The statute, Revisal, § 939, recognizes that no appeal shall be allowed in such cases, and our decisions are to like purport. In re Brown, supra; Ex parte McCown; Ex parte Deaton. [2, 3] No more should there be a trial by jury or a removal before another judge as a matter of right. Speaking to this question, in Brown's Case, the court said: "While it is understood with us that, in mere matters of procedure and in courts below the Supreme Court which comes under the influence of a special constitutional provision, the question presented may be to some extent regulated by legislation, it is also held that, both as to direct and constructive contempts, the trial is properly had by the court without the intervention of the jury, and usually by the court against which the offense has been committed. The power in question is conferred to enable a court to command respect and obedience, and it would go far to weaken and, in case of direct contempt, would well-nigh destroy it, if the occasion of its present exercise would have to be referred for decision to some other tribunal or agency." * # And it is in no sense the denial of a con stitutional right that a jury trial is refused in such cases. In Brown's Case, the court said further: And the present Chief Justice, in his concurring opinion in Gorham's Case, said: "The Constitution, art. 4, § 12, provides: "The General Assembly shall have no power to deprive the judicial department of any power of jurisdiction which rightfully pertains to it as a co-ordinate department of the government. If the General Assembly had expressly enacted that such acts as are here found to have been committed by the respondents could not be punished by the courts, it would have been a nullity as an attempt to deprive the judiciary of a power which has belonged to it from the remotest antiquity, and which has never been denied to any other court, and which is an inherent power necessary to the very existence of any authority in the courts. If, the moment a juror passes out of the courtroom, hired lobbyists in the pay of powerful and wealthy suitors can take them in charge, suborn them, bribe them, sleep with them, treat them, and snap their fingers with importunity at the court, then indeed the judiciary is worse than 'exhausted. It will not avail that the parties can be tried for 'embracery' at the next term, if all the judge can do is to make a mistrial. The injuries done, and the contempt of the court is most fully shown by preventing a trial at this term. The And by C. J. Wilmot, in King v. Almon, 8 contempt could not be more direct or palpable State Trials, 53, quoted in McCown's Case, if a band of armed men had followed the jury to the courthouse with threats of violence if their verdict was unfavorable, and had stood just outside the door to execute punishment if disappointed. It is equally a contempt of court whether a man meets a juror just outside the courtroom with a bribe or a bludgeon in his hand. If the court cannot prevent either be cause not done within the courtroom, the administration of justice is no longer free. The independence of the judiciary no longer exists." The fact that several of the North Carolina authorities were in proceedings "as for con of general jurisdiction to punish for contempt "At common law, the power of courts of record and, in certain instances, by summary procedure, has existed time out of mind, as said by Judge Blackstone, 'as far as the annals of the law extend."" supra: "The power which the courts in Westminster Hall have of vindicating their own authority is coeval with their first foundation and institution; it is a necessary incident to every court of justice, whether of record or not, to fine and imprison for a contempt of the court, acted in the face of it (1 Vent. 1), and the issuing of attachments by the Supreme Courts of justice in Westminster Hall, for contempts out of court, ports the whole fabric of the common law; it is stands upon the same immemorial usage as supas much the lex terræ, and within the exception 3. HOMICIDE 269 MANSLAUGHTER BY NEGLIGENCE-DEGREE OF NEGLIGENCE. of Magna Carta, as the issuing any other legal process whatever. I have examined very carefully to see if I could find out any vestiges or Negligence leading to a killing, to render traces of its introduction, but can find none; the negligent party guilty of manslaughter, must it is as ancient as any other part of the common be something more than is required on the trial law; there is no priority or posteriority to be of an issue of negligence in a civil action, but it discovered about it, and therefore it cannot be is sufficient to be submitted to a jury in a crimisaid to invade the common law, but to act in al-nal prosecution if it is likely to produce death liance and friendly conjunction with every other or great bodily harm. provision which the wisdom of our ancestors has established for the general good of society." 4. CRIMINAL LAW 448(2) EVIDENCE OPINION. In a prosecution for manslaughter by killing another while driving a motor truck at a . high speed, the court's ruling withdrawing the opinion of a witness that it was a mistake of judgment of defendant in turning to the right instead of the left was proper, since the matter was a mere inference, and not a statement of fact. 5. HOMICIDE 101 MANSLAUGHTER BY Well might the Massachusetts court, therefore, in Cartwright's Case, supra, say that summary procedure in these cases is in accord with the law of the land, within the meaning of our declaration of rights, and, when a person, as in this instance, is guilty of breach of the peace, noise, or other disturbance, directly tending to interrupt the RECKLESS DRIVING OF MOTOR TRUCK-CONproceedings of a court holding a term for the TRIBUTORY NEGLIGENCE. administration of the law, they may be sum-defense to a criminal prosecution for manslaughContributory negligence of deceased is no marily punished, instantly and without fur- ter by having killed him by reckless driving of ther investigation, if it occurs in the pres- a motor truck, since the doctrine of contribuence and view of the court and, on notice to tory negligence has no place in the law of crime. show cause and proper proof had, if further 6. CRIMINAL LAW evidence is required, and in neither case is MENT OF COUNSEL. an appeal or trial by jury allowed. Ex parte Terry, 128 U. S. p. 289, 9 Sup. Ct. 77, 32 L. Ed. 405. [4] If a defendant, in such case, has reason to believe that a legal right has been denied, and it is made to appear that the court was without jurisdiction of the cause and was manifestly without power to impose the sentence complained of, the same may be inquired into on habeas corpus proceedings, removed to this court if necessary by writ of certiorari. 721(1)—TRIAL-Argu In a prosecution for manslaughter, reference by state's counsel to the fact that defendant did not testify in his own behalf was improper. APPEAL 7. CRIMINAL LAW 730(10) HARMLESS ERROR. WITNESS. In re Holley, 154 N. C. 163, 69 S. E. 872. The defendant having been adjudged guilty of direct contempt and by reason of unlawful conduct tending to "interrupt and hinder the proceedings of the court and to impair the respect due to its authority," no appeal lies from the sentence imposed upon him, and this will be certified that the same may be duly enforced by process issuing from superior court. Appeal dismissed. (175 N. C. 761) Appeal from Superior Court, Buncombe County; Lane, Judge. Peter McIver was convicted of manslaughter, and he appeals. No error. The defendant is charged with manslaughter on account of a collision on Phifer street in Asheville between an auto delivery wagon operated by defendant and a bicycle ridden by deceased. The defendant is a negro boy employed by M. V. Moore & Co., of Asheville, Dec. 23, and was in the performance of his duties with his employer at the time of the accident. The deceased, Percy Norris, was a white boy 11 years old. The collision occurred on June 20, 1917. STATE v. McIVER. (No. 538.) (Supreme Court of North Carolina. 1917.) 1. HOMICIDE 68-KILLING IN VIOLATION OF LAW-ILLEGAL DRIVING OF AUTOMOBILE -STATUTE AND ORDINANCE. Where an auto truck driver approached an intersecting street in a city without slowing down or giving any signal, at the rate of 30 miles an hour, in violation of the law of the state (Laws 1913, c. 107) and an ordinance of the city, and killed a boy on a bicycle, he was guilty of manslaughter. 2. HOMICIDE 68-MANSLAUGHTER-RECKLESS NEGLIGENCE IN DRIVING AUTOMOBILE. Where the driver of an auto truck was guilty of negligence amounting to recklessness by driving at more than 30 miles an hour toward a street intersection, and killed a boy on a bicycle, he was guilty of manslaughter. Ashland avenue runs south from Patton avenue down a heavy grade to Phifer street and across Phifer for a short distance. It is paved north of Phifer, but south of Phifer is not paved "and sort of runs out there" at Phifer. Phifer street is paved its entire length, and there is a good deal of travel with machines on Phifer street. Both of the streets are paved with bitulithic. From Ashland west on Phifer is a grade of 4 or 5 per cent., and from Phifer north on Ashland |