Tbe defendant in North Carolina

1939S. v. Mills, 91 N. C., 581 , 594.” For tbe sake of completeness, although not important in tbe case at bar, we might add to this a fourth condition that the declarant, if living, would have been a competent witness to testify as to the matter.

1935At tbe time they (tbe dying declarations) were made, tbe declarant should have been in actual danger of death, (2) that be should have a full apprehension of bis danger, and (3) that death should have ensued.” S. v. Mills, 91 N. C., 581 (594).

1955S. v. Dills, 210 N.C. 178 , 185 S.E. 677 ; S. v. Nash, 86 N.C. 650 ; S. v. Gibson, 170 N.C. 697 , 86 S.E. 774 .

1943S. v. Hankins, 136 N. C., 621 , 48 S. E., 593 ; S. v. Taylor, 133 N. C., 755 , 46 S. E., 5 ; S. v. Nash, 86 N. C., 650 .

1954See S. v. Jenkins, 195 N.C. 747 , 143 S.E. 538 ; S. v. Camphell, 182 N.C. 911 , 110 S.E. 86 ; Sigmon v. Shell, 165 N.C. 582 , 81 S.E. 739 .” To tbe disapproval of this statement of law, firmly embodied in our decisions, I do not agree.

1954See S. v. Jenkins, 195 N.C. 747 , 143 S.E. 538 ; S. v. Camphell, 182 N.C. 911 , 110 S.E. 86 ; Sigmon v. Shell, 165 N.C. 582 , 81 S.E. 739 .” To tbe disapproval of this statement of law, firmly embodied in our decisions, I do not agree.

1954See S. v. Jenkins, 195 N.C. 747 , 143 S.E. 538 ; S. v. Camphell, 182 N.C. 911 , 110 S.E. 86 ; Sigmon v. Shell, 165 N.C. 582 , 81 S.E. 739 .” To tbe disapproval of this statement of law, firmly embodied in our decisions, I do not agree.

1922Tbe defendants, having lost before tbe jury, doubtless appealed “to see bow it might strike tbe Court.” Tbe remaining exceptions, calling in question tbe validity of our State statutes since tbe adoption of tbe XVIII Amendment to tbe Constitution of tbe United States, must Fe overruled on authority of S. v. Campbell, 182 N. C., 911 , and cases there cited.

1952S. v. Morgan, 226 N.C. 414 , 38 S.E. 2d 166 .

1952S. v. Morgan, 226 N.C. 414 , 38 S.E. 2d 166 .

1950If tbe act is intentional, and violates tbe order, tbe penalty is incurred, whether an indignity to tbe Court or a contempt of its authority, was or was not tbe motive for doing it.” Green v. Griffin, 95 N.C. 50 ; Nobles v. Roberson, 212 N.C. 334 .

1914Combes v. Adams, 152 N. C., pp. 64-70; Greene v. Griffin, 95 N. C., 50 ; McRae v. Comrs., 74 N. C., 415 ; Bank v. Stilling, 32 S. C., 102.

1949As far back as S. v. Butts, 91 N.C. 524 , all tbe requisites of tbe transcript were pointed out, and in S. v. Frizzell, 111 N.C. 722 , the Court said: ‘It is tbe appellant’s duty to see that tbe record is properly and sufficiently made up and transmitted.

1932As far back as S. v. Butts, 91 N. C., 524 , tbe requisites of tbe transcript were pointed out, and in S. v. Frizell, 111 N. C., 725 , tbe Court said: 'An appellant does not do bis duty by simply taking an appeal and leaving it to tbe clerk to send up what be may deem necessary.

1947Tbe defendant also complains at the court’s definition of “involuntary manslaughter,” but this was taken almost verbatim from S. v. Stansell, 203 N. C., 69 , 164 S. E., 580 , and is unexceptionable.

1947Tbe defendant also complains at the court’s definition of “involuntary manslaughter,” but this was taken almost verbatim from S. v. Stansell, 203 N. C., 69 , 164 S. E., 580 , and is unexceptionable.

1947Cf. S. v. Keaton, 206 N. C., 682 , and S. v. Capps, 134 N. C., 622 , 40 S. E., 730 . *411 Tbe rule is, that when it is permissible under the bill to convict the defendant of “a less degree of the same crime,” and there is evidence to support a milder verdict, the defendant is entitled to have the different views presented to the jury under proper instructions, and an error in this respect is not cured by a verdict finding the defendant guilty of a higher offense, for in such case, it cannot be known whether the jury would have convicted of a less degree of the same crime if the different views

1934S. v. Keaton, supra. Nor was tbe error cured by tbe verdict.

1946S. v. Stancill, 178 N. C., 683 , 100 S. E., 241 .

1926Tbe exception to tbe rule has been fully discussed by Walker, J., in S. v. Stancill, 178 N. C., 683 , and in a valuable note to tbe case of People v. Moleneux, 168 N. Y., 264 , as reported in 62 L.

1946S. v. Hairston, 222 N. C., 455 , 23 S. E. (2d), 885 ; S. v. Potts, 100 N. C., 457 , 6 S. E., 657 .

1946S. v. Hairston, 222 N. C., 455 , 23 S. E. (2d), 885 ; S. v. Potts, 100 N. C., 457 , 6 S. E., 657 .

1945S. v. Brown, 218 N. C., 415 , 11 S. E. (2d), 545 ; S. v. Hammonds, 216 N. C., 67 , 3 S. E. (2d), 439 ; S. v. Burney, 215 N. C., 598 , 3 S. E. (2d), 24 ; S. v. Bowser, 214 N. C., 249 , 199 S. E., 31 ; S. v. Hawhins, 214 N. C., 326 , 199 S. E., 31 ; S. v. Evans, 198 N. C., 82 , 150 S. E., 678 ; S. v. Steele, supra; S. v. Dowden, 118 N. C., 1145 , 24 S. E., 722 . *112 Tbe defendant was only fifteen years of age at tbe time be killed tbe deceased.

1945S. v. Brown, 218 N. C., 415 , 11 S. E. (2d), 545 ; S. v. Hammonds, 216 N. C., 67 , 3 S. E. (2d), 439 ; S. v. Burney, 215 N. C., 598 , 3 S. E. (2d), 24 ; S. v. Bowser, 214 N. C., 249 , 199 S. E., 31 ; S. v. Hawhins, 214 N. C., 326 , 199 S. E., 31 ; S. v. Evans, 198 N. C., 82 , 150 S. E., 678 ; S. v. Steele, supra; S. v. Dowden, 118 N. C., 1145 , 24 S. E., 722 . *112 Tbe defendant was only fifteen years of age at tbe time be killed tbe deceased.

1945Henry v. Hilliard, 155 N. C., 372 , 71 S. E., 439 , and eases there cited.

1917A like order was made in Ford v. Lumber Co., 155 N. C., 352 , and tbe Court said, in commenting on a motion to remove tbe cause to tbe Federal Court: “Tbe summons was returnable to September Term, 1910, at which term an order was made in this cause as follows: ‘Plaintiff allowed 40 days to file complaint; defendant has 40 days to file answer.’ Tbe defendant did not except to this order and did not move to dismiss tbe action for failure to file complaint, as it bad a right to do.

1943S. v. Ross, 193 N. C., 25 , 136 S. E., 193 ; S. v. Hartsfield, 188 N. C., 357 , 124 S. E., 629 ; S. v. Gamer, 203 N. C., 361 , 166 S. E., 180 ; S. v. Hightower, 187 N. C., 300 , 121 S. E., 616 ; S. v. Hardy, 189 N. C., 799 , 128 S. E., 152 .” S. v. Whitfield, supra; Anno. 84 A. L.

1940It does not mean a doubt founded upon something that you might imagine, but it means a doubt founded upon some substantial reason growing-out of tbe evidence itself which you have beard, so in order to convict these men or any of them, it will be necessary for you to be satisfied from all tbe evidence beyond a reasonable doubt that they are guilty.” Tbe defendants rely on S. v. Hardy, 189 N. C., 799 (805).

1943We think tbe exception well taken,, although tbe language to which tbe exception is addressed is a quotation from tbe case of Balcum v. Johnson, 177 N. C., 213 , 98 S. E., 532 ; S. v. McFalls, 221 N. C., 22 , 18 S. E. (2d), 700 ; Light Co. v. Moss, 220 N. C., 200 , 17 S. E. (2d), 10 .

1925Tbe test is set out in Balcum v. Johnson, supra; Harton v. Telephone Co., 141 N. C., 455 .

1942S. v. Schoolfield, 184 N. C., 721 , 114 S. E., 466 ; Williams v. B. & L.

1940Tbe excerpt objected to reads: “Tbe defendant is presumed to be innocent, and this presumption goes with him throughout tbe entire trial and until tbe jury is satisfied beyond reasonable doubt of bis guilt; not satisfied beyond any doubt, or all doubt, or a vain or fanciful doubt, but rather what tbat term implies, a reasonable doubt, one based upon common sense and reason, generated by insufficiency of proof.” This is in substantial compliance with tbe decisions of this Court, S. v. Schoolfield, 184 N. C., 721 ; S. v. Hege, supra, and in tbe absence of a request for more specific and more ela

1941See Walker v. Walker, 201 N. C., 183 (184); Puckett v. Dyer, 203 N. C., 684 (690); Maxwell v. Distributing Co., 204 N. C., 309 (316).” John G-.

1940See Walker v. Walker, 201 N. C., 183 (184) ; Puckett v. Dyer, 203 N. C., 684 (690); Maxwell v. Distributing Co., 204 N. C., 309 (316).” Tbe charge of plaintiffs against defendant was to tbe effect that defendant’s driver permanently injured them in tbe course of bis employment by defendant.

1941See Walker v. Walker, 201 N. C., 183 (184); Puckett v. Dyer, 203 N. C., 684 (690); Maxwell v. Distributing Co., 204 N. C., 309 (316).” John G-.

1940See Walker v. Walker, 201 N. C., 183 (184) ; Puckett v. Dyer, 203 N. C., 684 (690); Maxwell v. Distributing Co., 204 N. C., 309 (316).” Tbe charge of plaintiffs against defendant was to tbe effect that defendant’s driver permanently injured them in tbe course of bis employment by defendant.

1941In In re Hinton, 180 N. C., 206 (213), Walker, J., said: “Evidence of tbis kind was competent for tbe jury to consider, for when one can easily disprove a charge by testimony within bis control, and which be can then produce, and fails to do it, it is some proof tbat be cannot refute tbe charge.” In York v. York, 212 N. C., 695 (702), tbe above is quoted and it is there said: “Tbe rule of tbe Hinton case, supra, has been repeatedly approved and followed in recent cases decided by tbis Court.

1940Where tbe employer permits tbe driver to use tbe machine to and from bis home in order that tbe driver may reach bis work earlier, it has been held that tbe relation of master and servant continues during such trips.” In In re Hinton, 180 N. C., 206 (213), Walker, J., said: “Evidence of this kind was competent for tbe jury to consider, for when one can easily disprove a charge by testimony within bis control, and which be can then produce, and fails to do it, it is some proof that be cannot refute tbe charge.” In York v. York, 212 N. C., 695 (702), tbe above-is quoted and it is there said: “Tb

1941In In re Hinton, 180 N. C., 206 (213), Walker, J., said: “Evidence of tbis kind was competent for tbe jury to consider, for when one can easily disprove a charge by testimony within bis control, and which be can then produce, and fails to do it, it is some proof tbat be cannot refute tbe charge.” In York v. York, 212 N. C., 695 (702), tbe above is quoted and it is there said: “Tbe rule of tbe Hinton case, supra, has been repeatedly approved and followed in recent cases decided by tbis Court.

1940Where tbe employer permits tbe driver to use tbe machine to and from bis home in order that tbe driver may reach bis work earlier, it has been held that tbe relation of master and servant continues during such trips.” In In re Hinton, 180 N. C., 206 (213), Walker, J., said: “Evidence of this kind was competent for tbe jury to consider, for when one can easily disprove a charge by testimony within bis control, and which be can then produce, and fails to do it, it is some proof that be cannot refute tbe charge.” In York v. York, 212 N. C., 695 (702), tbe above-is quoted and it is there said: “Tb

1940Plaintiff introduced tbe written “warranty and agreement” and in bis testimony stated on cross-examination: “I sold bim tbe tractor for use in logging operations and understood be was going to use it in logging.” In Willis v. New Bern, 191 N. C., 507 (514), is tbe following: “Tbe rule is tbat if evidence offered by one party is objected to by tbe adverse party and thereafter tbe objecting party elicits tbe same evidence, tbe benefit of tbe objection is lost, and further, if on cross-examination evidence is developed without objection, tbe adverse party can offer evidence in reply relating to t

1933The governing principle was written in Willis v. New Bern, 191 N. C., 507 , 132 S. E., 286 , in these words: “In other words, the rule is, that if evidence offered by one party is objected to by the adverse party and thereafter the objecting party elicits the same evidence, the benefit of the objection is lost,” etc. Complaint is also made that the issues were not submitted to a jury.

1939S. v. Everitt, 164 N. C., 399 , 79 S. E., 274 .

1939S. v. Everitt, 164 N. C., 399 , 79 S. E., 274 .

1938Rollins v. Henry, 78 N. C., 342 .

1915We bave discussed this question somewhat already, but we may add tbat if Rollins v. Henry, supra,, is examined, it will be found tbat tbe judgment in tbat case consisted 'merely of memoranda and was not as definite and complete as those in question here, and it was beld to be valid and sufficient; and in Bond v. Wool, supra, tbe entry, “Judgment as per transcript filed,” was considered as sufficient to show a regular judgment of tbe court.

1938In S. v. Marshall, 208 N. C., 127 , 179 S. E., 427 , tbe principle is clearly stated: “The decisions are to this effect: “1.

1938In S. v. Marshall, 208 N. C., 127 , 179 S. E., 427 , tbe principle is clearly stated: “The decisions are to this effect: “1.

1937Buncombe County v. Penland, 206 N. C., 299 , 173 S. E., 609 ; Smith v. Haughion, ibid., 587, 174 S. .E., 506; McCollum v. Stack, 188 N. C., 462 , 124 S. E., 864 ; Motor Co. v. Reaves, 184 N. C., 260 , 114 S. E., 175 ; Jenette v. Hovey, 182 N. C., 30 , 108 S. E., 301 ; Brown v. Taylor, 174 N. C., 423 , 93 S. E., 982 ; School v. Peirce, 163 N. C., 424 , 79 S. E., 687 ; Grant v. Grant, 159 N. C., 528 , 75 S. E., 734 ; Warlick v. Reynolds, 151 N. C., 606 , 66 S. E., 657 ; Vick v. Flournoy, 147 N. C., 209 , 60 S. E., 978 ; Scott v. Life Assn., 137 N. C., 515 , 50 S. E., 221 ; Cooper v. Wyman, 122 N

1911Scott v. Life Association, 137 N. C., 515 .

1934Tbe defendant relies upon tbe decision in Peeler v. Casualty Co., 197 N. C., 286 , 148 S. E., 261 .

1934Tbe defendant relies upon tbe decision in Peeler v. Casualty Co., 197 N. C., 286 , 148 S. E., 261 .

1934Lumber Co. v. Pemberton, 188 N. C., 532 .

1934Lumber Co. v. Pemberton, 188 N. C., 532 .

1933S. v. Smith, 164 N. C., 475 , 79 S. E., 979 , is not an authority to tbe contrary.

1916“Tbe motion should be meritorious and not frivolous.” S. v. Smith, 164 N. C., 475 -480.

1930Mere liability to injury is not tbe test, as injuries may result in any kind of work where it is carelessly done, although with proper care it is not specially hazardous.” Vogh v. Geer, 171 N. C., 672 , 23 A. L.

1916Mere liability to injury is not tbe test, as injuries may result in any kind of work where it is carelessly done, although with proper care it is not specially hazardous.” Vogh v. Geer, 171 N. C., 672 .