VARIANCE.

See each particular subject for instances occurring applicable to such subject.

What amounts to a variance is a question of law, admitted or proven, must be determined by the court.

and the facts being Green, 100-419.

When the determination of the question as to whether there is a variance depends upon an issue of fact it must be passed on by the jury, with instructions from the court as to the law. Green, 100-419.

VENUE.

Sec. 650 (1193). Crimes committed on waters dividing counties, where tried. R. C., c. 35, s. 24.

When any offence shall be committed on any water, or watercourse, whether at high or low water, which said water or watercourse, or the sides or shores thereof, shall divide counties, such offence may be dealt with, inquired of, tried and determined, and punished at the discretion of the court, in either of the two counties which may be nearest to the place where the offence was committed. Sec. 651 (1194). Improper venue to be taken advantage of by plea in abatement; on issue joined, what judgment rendered in misdemeanors, what in felonies. R. C., c. 35, s. 25.

And because the boundaries of many counties are either undetermined, or unknown, by reason whereof high offences go unpunished; therefore, for the more effectual prosecution of offences committed on land, near the boundaries of counties, in the prosecution of all offences it shall be deemed and taken as true, that the offence was committed in the county, in which by the indictment it is alleged to have taken place, unless the defendant shall deny the same by a plea in abatement, the truth whereof shall be duly verified on oath, or otherwise, both as to substance and fact, wherein shall be set forth the proper county in which the supposed offence, if any, was committed; whereupon the court may, on motion of the state, commit the defendant, who may enter into recognizance, as in other cases, to answer the offence in the county averred by his plea to be the proper county; and, on his prosecution in that county, it shall be deemed, conclusively, to be the proper county. But if

the state, upon the plea aforesaid, will join issue, and the matter be found for the defendant, he shall be required to enter into recognizance as in other cases to answer the offence in the county averred by his plea to be the proper county, provided the offence be bailable; and, if not bailable, he shall be committed for trial in the county; and, if it be found for the state, the court in all offences and misdemeanors shall proceed to pronounce judgment against the defendant, as upon conviction; and, in all cases of felony, the defendant shall be at liberty to plead to the indictment, and be tried on his plea of not guilty.

PLEA WHEN OFFENCE COMMITTED IN ANOTHER STATE.—The special plea in abatement required by this section only applies to offences committed within this state but in a county other than that alleged in the bill, and where the offence charged has been committed in another state that fact can be proved under a plea of not guilty. Mitchell, 83-674.

NOT NECESSARY FOR STATE TO PROVE VENUE.-The allegation, on indictment for murder, that the killing took place in the county where the indictment is found need not be proven by the state, since it is to be taken as true unless the prisoner denies it by plea in abatement. Outerbridge, 82-617.

IMPROPER VENUE.-The failure to lay the venue properly is not fatal to an indictment. Williamson, 81-540.

Sec. 652 (1196). In cases where an assault followed by death in another county, indictment to be found in the county where assault was made. R. C., c. 35, s. 27. 1831, c. 22, s. 1.

In all cases of felonious homicide, when the assault shall have been made in one county within the state, and the person assaulted shall die in any other county thereof, the offender shall be indicted and punished for the crime in the county wherein the assault was made.

Sec 653 (1197). Assault in this state and death out of it, trial to be held in this state R. C., c. 35, s. 28. 1831, c. 22, s. 2. 1891, c. 68.

In all cases of felonious homicide, when the assault shall have been made within this state, and the person assaulted shall die without the limits thereof, the offender shall be indicted and punished for the crime in the county where the assault was made, in the same manner, to all intents and purposes as if the person assaulted had died within the limits of the state, and if a mortal wound is given or other violence or injury inflicted, or poison is administered on the high seas or land, either within or without the limits of this state, by means whereof death ensues in any county thereof, said offence may be prosecuted and punished in the county where the death happens.

This act is constitutional, and applies to foreigners as well as citizens of this state who have inflicted mortal wounds elsewhere. Caldwell, 115794.

The term "assault" as used in this statute means not a mere attempt, but an injury inflicted in this state and resulting in death in another state. Hall, 114-909.

VERDICT.

VERDICT DIRECTED BY THE COURT. -On a trial for murder the judge, at the close of the evidence, asked counsel for the prisoner what they had to say, to which the counsel replied, "We shall take the ground that it was in self-defence." The judge answered, "It is manslaughter in any phase, with many elements of murder. I shall tell the jury to return a verdict of manslaughter": and he so directed, and the verdict was recorded: Held, that such a charge was erroneous. The evidence must be submitted to the jury for them to say whether they believe it, even in a clear case of guilt. Dixon, 75-275.

Where there is no conflict of testimony and no alternative aspects of it to be submitted, it is not error for the trial judge to tell the jury that if they believe the evidence the prisoner is guilty of manslaughter. tinguishing State v. Dixon, 75-275. Vines, 93-493.

Dis

The evidence for the state was uncontradicted, and the court instructed the jury that if they believed the evidence to return a verdict of guilty; and after pausing a moment or two, and the jury manifesting no disposition to retire, the court directed the clerk to enter the verdict of guilty: Held, that while it was not necessary that the jury should retire, yet it was indispensable that they should agree and render the verdict. Riley, 113-648.

The judge can not direct a verdict on the testimony for the jury must pass upon the credibility of the testimony offered. Winchester, 113-641. SPECIAL VERDICT.-Where a special verdict is rendered, the court should simply declare its opinion that the defendant is guilty or not guilty and enter judgment accordingly; or the simple entry of judgment in favor of or against the defendant would be sufficient. Following State v. Moore, 29 (7 Ired.), 228. Ewing, 108-755.

A special verdict is in itself a verdict of guilty or not guilty, as the facts found in it do or do not constitute in law the offence charged; and there is nothing to do on it but to write a judgment thereon for or against the accused. Moore, 29 (7 Ired.), 228.

Upon the finding of fact as returned, the court should instruct the jury to render a verdict of guilty or not guilty, according to the view he enter tains of the law applicable to such state of facts. To assume to pass judgment without directing a verdict to be entered up in accordance with its opinion on the law is error. Neis, 107-820.

A formal verdict in accordance with the opinion of the court must be entered upon a special verdict before judgment can be pronounced. Morris, 104-837.

A jury trial can not be waived in a criminal action and the court allowed to find the facts and declare the law by consent. Such action is

in violation of the constitution and in subversion of a fundamental principle of the common law. Stewart, 89-563.

A statement of facts agreed upon by the state and the accused and submitted to the judge for his decision, such statement not being submitted in the shape of a special verdict, will not warrant a judgment thereon. "No person shall be convicted of any crime but by the unanimous verdict of a jury." Const. N. C., art. 1, sec. 13. Holt, 90-749.

Where the jury return a special verdict finding all the facts necessary to constitute the offence charged, the fact that the court, upon the special findings of fact, adjudges the defendant not guilty and orders "a verdict of not guilty to be entered," does not deprive the state of an appeal, as where a verdict of not guilty is returned by the jury. The entry of the verdict of "not guilty" is not the verdict of the jury, and such order of the court is unnecessary. Ewing, 108-755.

A judgment on a special verdict leaves the matter distinctly open to review in a higher court, and the reason for allowing such verdicts in criminal cases is to give the state, as well as the prisoner, the right to have the question of law solemnly decided. Moore, 29 (7 Ired.), 228.

A special verdict in which, after setting out the facts, the jury say: “If upon these facts the court be of opinion that the defendant is guilty, the jury so find, otherwise not guilty." is sufficient as following approved precedents. Gillikin, 114-832.

Where, in a bastardy proceeding, the justice found that, as the result of illicit intercourse between the defendant and the prosecutrix, the latter was delivered of a child eight months after such intercourse, which was living at the time of the trial, and that he, the trial justice, did not believe that an eight months child could live, and on these findings adjudged the defendant not guilty: Held, that such findings do not constitute a special verdict. Bruce, 122-1040.

It is not necessary to enter a formal verdict in accordance with the opinion of the court on a special verdict. Spray, 113-686.

Where the court sets aside a special verdict, it can not then order a general verdict of guilty or not guilty to be entered; the effect is to make a mistrial. Moore, 29 (7 Ired.), 228.

A special verdict which simply finds a certain state of facts, without a formal verdict of guilty or not guilty in accordance with the opinion of the court upon the facts found, is incomplete, and will not support a judgment. Moore, 107-770. Monger, 107-771.

Where a special verdict is returned which is so defective that no judg ment can be pronounced upon it, the supreme court will order a new trial. Lowry, 74-121.

A mistake in the verdict of a jury may be corrected before it is recorded and the jury discharged. Shelly, 98-673.

A special verdict must find all the facts necessary to constitute the offence charged, and such facts should be fully and explicitly stated to warrant the court in pronouncing judgment upon the verdict. Bloodworth, 94-918.

SEPARATE VERDICT ON EACH COUNT.-Where there are several counts in an indictment, a defendant has the right to require a separate verdict to be rendered on each count; but this is a privilege, and if he does not ask to have this done in apt time he can not afterwards be heard to complain. Toole, 106-736.

While a defendant has the right to require a separate verdict on each count, yet he waives the right to insist on such verdict if not asked for in

apt time; and where some of the counts are defective, if he fails to ask for a separate verdict, a general verdict of guilty will support the judgment, though he has pointed out errors of the judge, to which he excepted in apt time, either in the refusal to admit competent testimony offered, or the admission of incompetent testimony objected to bearing on the good counts, or in giving objectionable instructions as to the good counts. Avery and Shepherd, JJ., dissenting. Toole, 106-736.

Where there is a general verdict of guilty on an indictment containing several counts, and only one sentence is imposed, if some of the counts are defective the judgment will be supported by the good count. Toole, 106736.

Where there are two counts in an indictment, one good and the other defective, and there is a general verdict against the defendants, the judgment will be presumed to have been upon the good count alone; but where both counts are good and the court gives erroneous instructions to the jury as to one of the counts, it is presumed that the judgment was given upon both counts, and a venire de novo will be awarded. McCauless, 31 (9 Ired.), 375.

Where there is a general verdict of guilty on an indictment containing several counts, and some of the counts are defective, if the verdict as to any of the counts is subject to objection for the admission of improper testimony or erroneous instruction, the sentence will be supported by the verdict on the other counts, unless the error was such as might or could have affected the verdict on the good counts. Overruling State v. McCauless, 31 (9 Ired.), 375. Avery and Shepherd, JJ., dissenting. Toole, 106-736.

PRACTICE ON APPEAL.-The supreme court will not look into affidavits in support of a motion to set aside a verdict for misconduct of the jury, but will look only to the record presented, and when such motion is designed to be submitted to their revision, the facts must be ascertained by the court and spread upon the record. Godwin, 27 (5 Ired.), 401. Smallwood, 78-560.

IMPEACHING THE VERDICT.-A juror is incompetent as a witness to impeach the verdict of the jury of which he was a member. Brittain, 89— 481.

A verdict can not be impeached for misconduct of the jury by evidence proceeding from members of the body. Best, 111-638.

The verdict of a jury can not be impeached by one of its members. Royall, 90-755. Smallwood, 78-560. Brittain, 89-481.

VERDICT OF GUILTY MAY BE SET ASIDE.-The court may set aside a verdict of guilty where it is against the weight of evidence, or where there is no -evidence to support it. Atkinson, 93-519.

If the evidence is so slight and inconclusive as that, in no view of it, the jury ought reasonably to find a verdict of guilty, then there is no evidence which should be submitted. Ibid.

SUNDAY.-A verdict may be rendered on Sunday. Penley, 107-808.

VERDICT OF NOT GUILTY CAN NOT BE SET ASIDE.-The judge can not set aside a verdict of not guilty, nor grant a new trial after such verdict on the motion of the state, on the ground that one of the jurors had been improperly sworn. Freeman, 66-647.

NON-RESIDENT JUROR.-1 he fact that one of the jurors was a non-resident of the county is no ground for a new trial after the verdict is rendered. White, 68-158.

VERDICT OF ACQUITTAL BY FRAUD A NULLITY.-A verdict of acquittal on an indictment for a misdemeanor procured by the trick or fraud of the