or custody of the child or children so brought before it either to the husband or to the wife, for such time, under such regulations and restrictions, and with such provisions and directions as will, in the opinion of the court or judge, best promote the interest and welfare of the children. At any time after the making of such orders the court or judge may, on good cause shown, annul, vary or modify the same.

Sec. 240 (1662). When custody of children contested, either party may appeal. 1858-'9, c. 53, s. 2.

In all cases of habeas corpus, where a contest shall arise in respect to the custody of minor chidren, either party may appeal to the supreme court from the final judgment.

Sec. 241 (1663). Habeas corpus ad testificandum. 1868-'9, c. 116, s. 37.

Every court of record shall have power, upon the application of any party to any suit or proceeding, civil or criminal, pending in such court, to issue a writ of habeas corpus, for the purpose of bringing before the said court any prisoner, who may be detained in any jail or prison within the state, for any cause, except such prisoner be under sentence for a felony, to be examined as a witness in such suit or proceeding, in behalf of the party making the application.

Sec. 242 (1664). Justices of the peace and superior court clerks. 1868-'9, c. 116, s. 38.

Such writ of habeas corpus may be issued by any justice of the peace or clerk of the superior court upon application as provided in the preceding section, to bring any person confined in the jail or prison of the same county where such justice or clerk may reside, to be examined as a witness before such justice or clerk. And in cases where the testimony of any prisoner is needed in a proceeding before a justice of the peace, or a clerk, and such person be confined in a county in which such justice or clerk does not reside, application for a habeas corpus to testify may be made to any judge of the supreme or superior court.

Sec. 243 (1665). Application, what to contain. 1868-'9, c. 116, s. 39.

The application for the writ shall be made by the party to the suit or proceeding in which the writ is required, or by his agent or attorney. It must be verified by the applicant, and shall state:

(1) The title and nature of the suit or proceeding in regard to which the testimony of such prisoner is desired;

(2) That the testimony of such prisoner is material and necessary to such party on the trial or hearing of such suit or proceeding, as he is advised by counsel and verily believes.

Sec. 244 (1666). Writ, how and by whom served. 1868-'9, c. 116, s. 40.

The writ of habeas corpus to testify shall be served by the same person, and in like manner in all respects, and enforced by the court or officer issuing the same as prescribed in this chapter for the service and enforcement of the writ of habeas corpus cum causa.

Sec. 245 (1667). Fees and bond on service. 1868-'9, c. 116, s. 41.

The service of the writ shall not be complete, however, unless the applicant for the same shall tender to the person in whose custody the prisoner may be, if such person be a sheriff, coroner, constable or marshal, the fees and expenses allowed by law for bringing such prisoner, nor unless he shall also give bond, with sufficient security, to such sheriff, coroner, constable or marshal, as the case may be, conditioned that such applicant will pay the charges of carrying back such prisoner.

Sec. 246 (1668). Duty of officers. 1868-19, c. 116, s. 42.

It shall be the duty of the officer to whom the writ is delivered or upon whom it is served, whether such writ be directed to him or not, upon payment or tender of the charges allowed by law, and the delivery or tender of the bond herein prescribed, to obey and return such writ according to the exigency thereof upon pain, on refusal or neglect, to forfeit to the party on whose application the same shall have been issued the sum of five hundred dollars.

Sec. 247 (1669). Prisoner to be remanded. 1868-'9, c. 116, s. 43.

After having testified the prisoner shall be remanded to the prison from which he was taken.

See ROADS.

HIGHWAYS.

HOGS.

Sec. 248. Hogs having cholera not to run at large. 1889, c. 173. 1891, C. 67.

Any person having swine affected with the disease known as hog cholera, and discovering the same, or to whom notice of the fact shall be given, shall immediately secure the diseased swine from the approach or contact with other hogs not so affected, by penning or otherwise securing and effectually isolating them.

When any hog or other animal shall die with the hog cholera or other infectious disease, it shall be the duty of the owner thereof to so bury the same as to secure it from the reach or contact with other hogs or other domestic animals of value, and he shall not throw or place such hog or other animal in any ditch, canal, branch, creek, river or other water-course passing beyond his own premises.

Any person violating the provisions of this act or neglecting for five days after it shall come to his or their notice that the swine are affected, and failing to comply with this act, shall be guilty of a misdemeanor and fined not exceeding five dollars or imprisoned not more than ten days, and such swine shall be so penned or confined that they shall not have any access to any ditch, canal, branch, creek, river or other water-course which passes beyond the premises of the owners of such swine.

HOLIDAYS.

COURT MAY SIT DURING HOIDAYS.-Code N. C., sections 3782-3784, declaring certain days public holidays, do not prevent the courts from proceeding with the usual business before them. Moore, 104-743.

Sec. 249. Murder divided into two degrees and defined. 1893, c. 85. 1893, c. 281.

SECTION 1. All murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death.

SEC. 2. All other kinds of murder shall be deemed murder in the second degree, and shall be punished with imprisonment of not less than two nor more than thirty years in the penitentiary.

SEC. 3. Nothing herein contained shall be construed to require any alteration or modification of the existing form of indictment for murder, but the jury before whom the offender is tried shall determine in their verdict whether the crime is murder in the first or second degree.

SEC. 4. The provisions of this act shall not apply to any crime which shall have been committed prior to the ratification of this act, and shall not affect the existing distinction between murder and manslaughter nor the punishment for manslaughter as now provided by law.

Sec. 250 (1057). Homicide, murder, its punishment. 1868-'9, c. 167, s. 1. R. C., c. 34, s. 2. I Edw. VI., c. 12, s. 10. 23 Hen. VIII., c. 1, s. 3. 25 Hen. VIII., c. 3. 8 Eliz., c. 4. 18 Eliz., c. 7, s. 1.

Every person who is convicted, in due course of law, of any wilful murder of malice prepense, shall suffer death.

1. MURDER IN FIRST DEGREE.

Where the prisoner weighs the purpose of killing long enough to form a fixed design to kill, and at a subsequent time, no matter how soon or how

remote, puts it into execution, there is sufficient premeditation and deliberation to warrant a verdict of guilty of murder in the first degree. Dowden, 118-1145.

The rule that where the killing with a deadly weapon is admitted or proven malice is presumed, and it devolves upon the prisoner to show facts in extenuation, mitigation or excuse, applies to murder in the second degree but not in the first. Locklear, 118-1154.

It was admitted that one J killed the deceased, and it appeared in evidence that, just prior to the killing, the defendants went with J to the house of the deceased where J, in the presence and hearing of the defendants, cursed and threatened the life of the deceased's wife; that then J went into the house, got two guns of the deceased, carried them to the kitchen, met the deceased at the gate and in the sight and hearing of the defendants shot and killed the deceased as the latter approached the gate; that the defendants made no attempt, by word or act, to prevent the killing, made no outcry, but, without saying anything, walked away with J; that a short time before the killing a witness had a conversation with the defendants, and one of them said that J had sent for deceased to come over and compromise a difficulty between the latter and J and that J had loaded his gun and was going to shoot deceased if he did not settle; that one of the defendants asked witness for cartridges for his pistol, saying, "I am afraid we are going to have trouble with J to-day;" that on the day of the killing J came to the house of defendant F without a gun, and the two men went away together, and in twenty minutes witness heard two guns fired at deceased's house, and when they came back J said he had killed deceased and witness remarked, "If deceased is killed it will go hard with all of you": Held, that the evidence was not only sufficient to sustain a verdict for murder in the second degree, but in the first degree, as the jury might have been justified in finding that defendants were present aiding and abetting J. Freeman, 122-1013.

The deceased, hearing a quarrel between one of his employes and the prisoner, in the night time, went to where they were, when the prisoner stopped and went off a few feet. Deceased approached the prisoner and asked him if he was the man who had been quarrelling with the employe, to which the prisoner made no reply. Deceased then placed his hand on the prisoner's shoulder and asked him to come to the light and tell what the trouble was about, when the prisoner immediately stabbed deceased, and jumped back, crying "Hands off": Held, that the evidence was not sufficient to be submitted to the jury on the question of murder in the first degree. Rhyne, 124-.

The evidence was that the accused and deceased had quarreled and that the latter had made threats, and the only evidence as to the manner of killing was that the accused had concealed himself and waylaid the deceased, striking him as he passed on the head with an axe killing him instantly. The court charged that the crime was murder or nothing, and the jury found the accused guilty of the felony and murder in the manner and form charged in the indictment. The indictment was in the form authorized by the act of 1887: Held, that, upon the evidence, only a verdict of guilty in the first degree was warranted, and the general verdict was in response to the charge of murder in the first degree and determined the degree in ac cordance with the act of 1893. Gilchrist, 113-673.

Where the bill charges murder in the first degree, it being in the power of the jury to convict of murder in the first or second degree or of manslaughter, it is as if there were three' counts in the bill, and it is settled that, where there are various counts in an indictment, and testimony is offered as to one count only, and there is a general verdict of guilty, the verdict will be presumed to have been rendered upon the count to which the evidence was applicable. Gilchrist, 113-673.