defendant is a nullity, and the defendant can again be put on trial for the same offence. Swepson, 79-632.

VERDICT OF NOT GUILTY CAN NOT BE CHANGED.-Where, on indictment for horse-stealing, the jury return as their verdict that the defendant is "not guilty of the felony and horse-stealing, but guilty of a trespass," and the court directs them to reconsider their verdict and say guilty or not guilty, and no more, and the jury then return a general verdict of guilty, it is proper to still have the first verdict recorded and the defendant discharged. Arrington, 7 (3 Murph.), 571.

INFORMAL OR INSENSIBLE VERDICT.-Where the jury return an informal or insensible verdict, or one that is not responsive to the issues involved, they may be directed by the court to reconsider it. Arrington, 7 (3 Murph.), 571.

VERDICT FOR MINOR OFFENCE.-On indictment for a felony, the jury can not return a verdict of guilty of a minor offence included in the felony, if such minor offence be a misdemeanor, as an acquittal of a felony is no bar to another indictment for the same act changing it to a misdemeanor. Durham, 72-447.

WHEN VERDICT RECONSIDERED.-It is the duty of the court to look after the form and substance of a verdict, and if it be informal or insensible to direct the jury to reconsider it. Whitaker, 89-472.

Where an informal or insensible verdict is returned, or one that is not responsive to the issues submitted to the jury, the proper practice is for the court to set the verdict aside and order a venire de novo. Edmund, 15 (4 Dev.), 340. Whitaker, 89-472.

PROPER FORM MAY BE SUBSTITUTED.—While the verdict of a jury must be recorded substantially as rendered, it is the duty of the judge to see it put in proper form; and, therefore, a new trial will not be granted because the clerk, on the return of a general verdict of guilty on an indictment for burglary, recorded the verdict not in the words of the jury, but in the form given in a form-book, when the verdict as recorded was read to the jury and assented to as their verdict. Wincroft, 76-38.

ARREST OF JUDGMENT ON IRRESPONSIVE VERDICT.-An absurd and irresponsive verdict should never be recorded, but the jury should be directed to correct it so as to be in conformity to law and to present an intelligent record. Where, on indictment for assault and battery in the usual form, the jury returned a verdict of "guilty of shooting," the judgment was ordered arrested. Hudson, 74-246.

VERDICT RENDERED IN DEFENDANT'S ABSENCE.-A verdict of guilty rendered, in the absence of the defendant and his counsel, to a judge at his chambers, and entered on the record next day in the absence of the jury and the defendant, can not be sustained. Bray, 67-283.

Where the verdict, on indictment for larceny, is rendered to the clerk during the recess of the court, in the absence of the defendant and without his consent, and without any instruction from the court, judgment may be arrested, or the court even, er mero motu, may set the verdict aside. Epps, 76-55.

Sec. 654 (3085). misdemeanor.

VESSELS AND BUOYS.

Unlawful to moor vessel to buoy, etc., or to damage, etc.; 1858-'9, c. 58. ss. 2, 3. 1883, c. 165, s. 1.

Any person who shall moor any vessel of any kind or name whatsoever, or any raft or any part of a raft, to any buoy, beacon or day mark, placed in the waters of North Carolina by the authority of the United States light-house board, or shall in any manner hang on with any vessel or raft, or part of a raft, to any such buoy, beacon or day mark, or shall wilfully remove, damage or destroy any such buoy, beacon or day mark, or shall cut down, remove, damage or destroy any beacon erected on land in this state by the authority of the United States light-house board, or through unavoidable accident run down, drag from its position or in any way injure any buoy, beacon or day mark, as aforesaid, and shall fail to give notice as soon as practicable of having done so, to the lighthouse inspector of the district in which said buoy, beacon or day mark may be located, or to the collector of the port, or if in charge of a pilot, to the collector of the port from which he comes, shall for every such offence be guilty of a misdemeanor and punishable by a fine not exceeding two hundred dollars or imprisoned not to exceed three months, or both, at the discretion of the court.

Sec. 655 (3086). Unlawful for vessels to anchor in range line of lights, etc.; misdemeanor. 1883, c. 165, s. 2.

It shall be unlawful for any vessel to anchor on the range line of any range of lights established by the United States light-house board, unless such anchorage is unavoidable, and the master of any vessel so anchoring shall be guilty of a misdemeanor, and punished by a fine not to exceed fifty dollars.

Sec. 656 (3087). Due diligence to be exercised in passing buoys, etc.; misdemeanor. 1883, c. 165, s. 3.

Any person having charge of any raft passing any buoy, beacon or day mark, who shall not exercise due diligence in keeping clear of it, or in unavoidably fouling it, shall not exercise due diligence in clearing it, without dragging from its position such buoy, beacon or day mark, shall be guilty of a misdemeanor, and punished by fine not to exceed fifty dollars.

VOTING.

See ILLEGAL VOTING-REGISTRATION OF VOTERS.

WANTON-DEFINITION OF.

The illegal act is wanton when it is needless for any rightful purpose, without adequate legal provocation, and manifests a reckless indifference to the interests and rights of others. Brigman, 94-888.

WATERCOURSES.

Sec. 657 (1123). Watercourses, obstruction of, penalty. ss. 1, 2.

1872-'3, c. 107,

If any person shall wilfully fell any tree, or wilfully put any cbstruction, except for the purposes of utilizing water as a motive power, in any branch, creek, or other natural passage for water, whereby the natural flow of water through such passage is lessened or retarded, and whereby the navigation of such stream by any raft or flat may be impeded, delayed or prevented, the person so offending shall be guilty of a misdemeanor, and fined not to exceed fifty dollars, or imprisoned not to exceed thirty days. Nothing in this section shall prevent the erection of fish dams or hedges which do not extend across more than two-thirds of the width of any stream where erected, but if extending over more than two-thirds of the width of any stream, the said penalties shall attach.

WATERWAY ACROSS STREET.-The mere obstruction of a waterway across a street does not per se constitute a nuisance, and a judgment quashing a warrant for the violation of a town ordinance prohibiting the obstruction of a waterway across a street on the ground that the ordinance is invalid because the offence of creating a nuisance is cognizable under the general law of the state, is erroneous when the allegation is simply that defendant "did dam up and obstruct the waterway," since it does not appear but that the obstruction is too slight, occasional and temporary to constitute a nuisance. Wilson, 106-718.

NAVIGABLE WATERS.-The public has an easement of navigation in all navigable waters, though the bed of the lake or watercourse may be private property, and the owner of the soil is indictable for obstructing them. Distinguishing State v. Glenn, 7 Jones, 321, where the river was ascertained to be unnavigable. Narrows Island Club, 100-477.

INDICTMENT.-The indictment under this section should aver that the obstruction charged was not or the purpose of utilizing the water as a motive power." Narrows Island Club, 100-477.

An indictment must negative the fact that the obstructions were placed in the stream "for the purpose of utilizing the water as a motive power." Tomlinson, 77-528.

RECITING STATUTE IN INDICTMENT.-An act making it indictable to fell . timber in the channel of a particular creek in a particular county is a

public law, and need not be recited in an indictment under it. Cobb, 18 (1 D. & B.), 115.

TEST OF NAVIGABILITY.-The test of the navigability of a stream is whether it is navigable for sea-going vessels, and not whether it is subject to the ebb and flow of the tides. Eason, 114-787.

See MILLS.

WEIGHTS AND MEASURES.

WILFUL-MEANING OF.

The word "wilful" when used in a statute creating an offence implies the doing of the act purposely and deliberately in violation of law. Whitener, 93-590.

See TRESPASS.

WILFUL TRESPASS.

WIRE FENCES.

See also INJURY TO PROPERTY-STOCK LAW AND FENCES.

Sec. 658. Misdemeanor to injure wire fence on the lands of another. 1889, c. 516.

Any person who shall wilfully destroy, cut or injure any part of a wire fence, situated on the land of another, shall be guilty of a misdemeanor, and upon conviction thereof shall be imprisoned not exceeding thirty days or fined not exceeding fifty dollars. A fence composed partly of wire and partly of wood shall, for the purpose of this act, be deemed and taken to be a wire fence.

INDICTMENT.-An indictment under this section need not aver that the fence surrounded or enclosed any field or other premises. Biggers, 108

JURISDICTION.-The indictment charged that defendant did cut and destroy "a wire fence enclosing a pasture," and it appeared that the offence was committed in May, 1889, and the indictment was found at fall term 1889: Held, that the superior court had jurisdiction of the offence under section 268 (The Code, sec. 1062), since the indictment charged the injuring of a wire fence “enclosing a pasture.” and the state was bound to prove that the fence did enclose a pasture, while under this section no such averment is necessary, though an inuictment under it would lie in a case where the wire fence in fact surrounded a field or pasture. The two statutes not being in conflict it was not necessary that the indictment should refer to the statute under which it was found so as to show jurisdiction. Biggers, 108-760.

THIS STATUTE DOES NOT REPEAL SECTION 268.-There is no conflict between this section and section 273 (The Code, sec. 1062), and an indictment for cutting and destroying "a wire fence enclosing a pasture" may be sustained under section 273. Biggers, 108-760.

WITNESSES.

Sec. 659 (739). Witnesses and officials to be paid half fees in certain cases, exception, R. C., c. 26, s. 8. R. S., c. 28, s. 12. C. C. P., s. 561. 1874-25, c. 247, s. I.

If there be no prosecutor in a criminal action, and the defendant shall be acquitted, or convicted and unable to pay the costs, or a nolle prosequi be entered or judgment arrested, the county shall pay the clerks, sheriffs, constables, justices and witnesses one-half their lawful fees only; except in capital felonies and in prosecutions for forgery, perjury and conspiracy, when they shall receive full fees. Sec. 660 (740). Witnesses for state when paid by county. R. C., c. 28, s. 9. 1804, c. 665. ss. 1, 2, 3. 1819, c. 1008. 1824, c. 1253.

Witnesses summoned or recognized on behalf of the state to attend on any criminal prosecution in the superior, inferior, or criminal courts where the defendant is insolvent, or by law shall not be bound to pay the same, and the court does not order them to be paid by the prosecutor, shall be paid by the county in which the prosecution was commenced. And in all cases wherein witnesses may be summoned or recognized to attend any such court to give evidence in behalf of the state, and the defendant shall be discharged, and in cases where the defendant shall break jail and shall not afterwards be retaken, the court shall order the witnesses to be paid.