PUNISHMENT ON CONVICTION FOR SIMPLE ASSAULT WHEN NO BODILY INJURY RESULTS.-Where, on indictment for assault with intent to commit rape. the conviction is for a simple assault, and there is no evidence that the prosecutrix suffered any bodily pain, the punishment can not exceed a fine of $50 or imprisonment for thirty days. Nash, 109-.

PRESENTMENT WHILE JUSTICE HAS EXCLUSIVE COGNIZANCE VOID.-Where a presentment for disturbing a school is made in the superior court within six months from the commission of the offence, but the indictment is found after the expiration of six months, the superior court has jurisdiction to try the offence, since the presentment, having been made while the offence was exclusively cognizable in a justice's court, is void, and can not affect the validity of the prosecution subsequently instituted. Cooper, 104-891.

TOWN ORDINANCE.-The superior court has no jurisdiction of an indictment for violation of a town ordinance which affixes a penalty of ten dollars or ten days' imprisonment. Threadgill, 76-17.

INFERIOR COURT.

Sec. 304 (808). Jurisdiction of inferior court. 1876-'7, c. 154, s. 7. 1879, c. 92, s. 11. 1881, c. 210.

Said inferior courts shall have jurisdiction to enquire of, try, hear and determine all crimes and misdemeanors, except those whereof exclusive original jurisdiction is given to courts of justices of the peace, and except the crimes of murder, manslaughter, arson, rape, assault with intent to commit rape, burglary, horse stealing, libel, perjury, forgery and highway robbery. Said inferior courts shall also have jurisdiction of all such affrays as shall be committed within one mile of the place where and during the time such courts are being held, and of all offences whereof exclusive original jurisdiction is given to justices of the peace, if some justice of the peace shall not, within six months after the commission of the offence, proceed to take official cognizance thereof.

JURORS.

Sec. 305 (1722). Jurors shall be selected. 1868, c. 9, s. 2. 1889, c. 559. 1897, c. 117. 1899, c. 729.

The board of county commissioners for the several counties at their regular meeting on the first Monday of June, in the year eighteen hundred and ninety-nine (1899) and every two years thereafter, shall cause their clerks to lay before them the tax returns of the preceding year for their county, from which they shall ¡roceed to select the names of such persons only as have paid all the taxes assessed against them for the preceding year and are of good moral character and of sufficient intelligence.

STATUTE DIRECTORY.-An objection that the jury list from which the grand jury is drawn does not contain the names of all the persons in the county qualified to sit as jurors, can not be sustained, since the statute prescribing how the jury lists shall be prepared is merely directory. Haywood, 73-437.

The regulations contained in sections 1722 and 1728 of The Code are directory only, and a failure to observe them does not vitiate the venire in the absence of fraud or corruption on the part of the commissioners. Perry, 122-1018.

It is not sufficient ground to quash an indictment that the commissioners failed to comply with this section in that they selected for jurors such as had not paid their taxes. The statute is directory, and a challenge to grand jurors on this account, unless some actual corruption is shown, will not be sustained. Fertilizer Co., 111-658.

Sec. 306 (1723). List of names to be made out. 1868, c. 9, s. 2.

A list of the names thus selected shall be made out by the clerk of the board of commissioners, and shall constitute the jury list: Provided, that no practicing physician, regular minister of the gospel, Feepers of public grist mills, or regularly licensed pilots, members of fire companies and of the state guard, shall be requir: d to serve as jurors.

Sec. 307 (1724). Commissioners to insert names in jury lists. 1868, c. 9, s. 3. If the list so made out does not contain the names of all the inhabitants who are qualified as provided to serve as jurors, the commissioners shall insert the names of such inhabitants in the jury list.

Sec. 308 (1725). Commissioners to examine jury lists, and may examine any person on oath. 1868, c. 9, s. 4. 1889, c. 559.

After the jury lists have been made out in accordance with sees. 1723 and 1724, the commissioners shall carefully examine the jury lists, compare the same with the tax returns, and diligently inquire whether any persons qualified to be jurors as provided are omitted, and whether any persons not qualified to be jurors, as therein provided, have been inserted, and if any have been inserted not possessing the requisite qualifications, they shall strike such names from the jury lists, and in order to obtain full information on the subject the commissioners may examine on oath any person they may think proper.

Sec. 309 (1726). Names to be put in box. 1868, c. 9, s. 5. 1889, c. 559. 1897, c. 539.

The commissioners shall cause the names on their jury list to be written on small scrolls of paper of equal size and put into a Dox procured for that purpose, which must have two divisions

marked Nos. 1 and 2, and two locks, the key of one to be kept by the sheriff of the county, the other by the chairman of the board of commissioners, and the box by the clerk of the board.

Sec. 310 (1727). How jury sball be drawn. 1868, c. 9, s. 6. 1868-'9, c. 175. 1889, c. 559. 1897, c. 539.

At least twenty days before the regular fall and spring term of the superior ecurt in each year, the commissioners shall cause to be drawn from the jury box out of the partition marked No. 1, by a child not more than ten years of age, thirty-six scrolls, and the persons whose names are inscribed on said scrolls shall serve as jurors at the fall and spring terms of the superior court to be held for the county respectively ensuing such drawing, and the scrolls so drawn to make the jury shall be put into the partition marked No. 2. The said commissioners shall at the same time and in the same manner draw the names of eighteen persons who shall be summoned to appear and serve during the second week of the term of said court, unless the judge thereof shall sooner discharge all jurors from further service; and the trial jury which has served during the first week, shall be discharged by the judge at the close of said week, unless the said jury shall be then actually engaged in the trial of a case, and then they shall not be discharged until the trial is determined.

NUMBER OF GRAND JURORS.-A motion to quash on the ground that fortyfour instead of thirty-six jurors were drawn may be properly refused, since the provision that only thirty-six should be drawn is only directory. Watson, 104-735.

Sec. 311 (1728). Jurors having suits pending. 1868, c. 9, s. 7.

If any of the jurors drawn have a suit pending and at issue in the superior court, the scrolls with their names must be returned into partition No. 1 of the jury box.

Sec. 312 (1729). Case of death or removal from the county. 1868, c. 9, s. 8. 1889, c. 559. 1897, c. 539.

If any of the persons drawn to serve as jurors be dead, removed out of the county the scrolls with the names of such persons must be destroyed, and in such cases other persons shall be drawn in their stead.

Sec. 313 (1730). How drawing of jury to continue. 1868, c. 9, s. 9.

The drawing out of partition marked No. 1 and putting the scrolls drawn into partition No. 2, shall continue until all the scrolls in partition No. 1 are drawn out, when all the scrolls shall be returned into partition No. 1 and drawn out again as herein directed.

How BOXES NUMBERED. The partitions of the jury box were marked "jurors drawn" and "jurors not drawn," instead of "No. 1" and "No. 2," and the key, which unlocked both boxes, was deposited with the register of deeds: Held, that a special venire drawn from the box marked "jurors not drawn," was legal. Potts, 100-457.

Sec. 314 (1731). In case of a special term. 1868, c. 9, s. 10.

Whenever a special term of the superior court is ordered for the county, the commissioners, fifteen days before the holding of such special term, shall drawn eighteen jurors to attend said court as herein provided for drawing jurors of the regular terms thereof.

Sec. 315 (1732). When commissioners fail to draw a jury. 1868, c. 9, s. 11. If the commissioners for any cause fail to draw a jury for any term of the superior court, regular or special, the sheriff of the county and the clerk of the commissioners in the presence of, and assisted by two justices of the peace of the county, shall draw such jury in the manner above described, and if a special term shall continue for more than two weeks, then for the weeks exceeding two a jury or juries may be drawn as in this section provided.

Sec. 316 (1733). Jurors to be summoned, and to attend until discharged by court; tales jurors, how summoned, and qualifications. R. C., c. 31, s. 29. 1779, c. 156, ss. 6, 9. 1806, c. 694, s. 1. 1830, c. 42. 1868, c. 9, s. 12. 1879, c. 200. 1881, c. 226.

The clerk of the board of county commissioners shall, within five days from the drawing, deliver the list of the jurors drawn for the superior court to the sheriff of the county, who shall summon the persons therein named to attend as jurors at such court which summons shall be served, personally, or by leaving a copy thereof at the house of the juror, at least five days before the sitting of the court to which he may be summoned; and jurors shall appear and give their attendance until duly discharged; and, 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, to serve on the petit jury, and on any day the court may discharge those who have served the preceding day: Provided, that 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 terms of the court.

JUROR MUST ACT TO BE DISQUALIFIED.-To render a juror disqualified because he has served on the jury within two years past it must appear not only that he has been summoned, but that he has acted within that time. Whitfield, 92-831.

Sec. 317 (1741). Exceptions to jurors, when to be taken.

All exceptions to grand jurors for and on account of their disqualification shall be taken before the jury is sworn and impaneled to try the issue, by motion to quash the indictment, and if not so taken the same shall be deemed to have been waived.

HAVING SUIT WHEN BILL FOUND.-The fact that a grand juror had a suit pending and at issue when the bill was found, is sufficient ground for quasning the indictment if the motion is made in apt time. Gardner, 104— 739.

CONSTITUTION.-An act of the legislature making the concurrence of nine members of the grand jury sufficient, is unconstitutional. Barker, 107-913.

ACTUAL PRESENCE OF GRAND JUROR WHEN BILL FOUND.-Defendant is not required to show affirmatively that a grand juror who was disqualified by having a suit on the docket was actually present and participated in the deliberations of the grand jury when the bill was found. Smith, 80410.

Sec. 318 (1742). Foreman of grand jury to administer oaths. 1879, c. 12.

The foreman of every grand jury duly sworn and impaneled in any of the courts shall have power to administer oaths and affirmations to persons to be examined before it as witneses: Provided, that the said foreman shall not administer such oath or affirmation to any persons except those whose names are endorsed on the bill of indictment by the officer prosecuting in behalf of the state, or by direction of the court: Provided further, that the foreman of the grand jury shall mark on the bill the names of the witnesses sworn and examined before the jury.

FAILURE TO MARK NAMES OF WITNESSES.-The above section is merely directory, and the omission of the foreman to mark on the bill the names of the witnesses sworn and examined is no ground for quashing the bill or arresting the judgment. Following State v. Sheppard, 97-401. Hollingsworth, 100–535.

The omission of the foreman of the grand jury to put a X before the name of the witnesses is not ground for the arrest of judgment, since such endorsements form no part of the record. A motion to quash on such ground made after pleading to the indictment may be overruled in the discretion of the court, since defendant might have pleaded in abatement and shown, if such was the fact, that the witnesses had not been sworn. Sheppard, 97-401.

The failure of the foreman to sign the endorsement on the back of a bill underneath the words those marked thus X sworn and sent," is not sufficient ground to sustain a motion to quash, or in arrest of judgment. Lanier, 90-714.

It is not necessary that it should appear that the state's witnesses were sent before the grand jury. Frizell, 111-722.

DRAWING AND SWEARING GRAND JURY.-The record stated that the persons impaneled as grand jurors, among whom was the one appointed foreman, were "duly drawn, sworn, and the court having appointed JP foreman are charged": Held, that it sufficiently appeared that the foreman had been properly drawn and sworn. Weaver, 104-758.