declaration, but there was evidence that he was a desperate and dangerous man: Held, that there was evidence sufficient to go to the jury of the intent to ravish the prosecutrix. Powell, 94-965.

Defendant was pursued by armed men, fired at several times and arrested, and in reply to a question then asked confessed the alleged crime of burglary. On the following day the prosecutor and others had an interview with him while he was fettered and in prison, when he told how he broke into the dwelling-house and stole the goods, and what he did with the goods, no threat or promise being made to him: Held, that his confession made on the second day, being presumed to proceed from the influence of the ear excited the day before, was inadmissible, but that what he said on the second day as to his disposition of the stolen property was admissible. Drake, 82--592.

CHARGE. Where the indictment simply charges the breaking and entering into the house, it is error to instruct the jury "that if they believed the defendants, however they may have got into the house, broke out of it, they were guilty." McPherson, 70--239.

A charge that if the prisoner was found in possession of a stolen watch and chain on Monday after the burglary committed on Saturday night, "the law presumed that he was the thief, and that the prisoner was bound to explain satisfactorily how he came by the stolen goods," is erroneous, since the prisoner might have received the watch and chain after some one else had committed the burglary, which would change the grade of the crime very materially. Graves, 72-482.

HABEAS CORPUS.-Where the indictment charges burglary with intent to commit murder, and defendant consents to a mistrial and then pleads "guilty of larceny," no judgment can be pronounced, since his confession of being guilty of larceny is not a confession of the crime charged against him. Queen, 91-660.

Where judgment is pronounced in such case, sentencing defendant to the penitentiary, he is not entitled to be discharged, but, since the original indictment is still pending against him, he may be taken from the penitentiary by habeas corpus, and held to answer the original charge. Ib.

Sec. 74 (995). Burglary; breaking out of dwelling-house in the night time. R. C., c. 34, s. 8. 12 Anne, c. 7, s. 3. 78 Geo. IV., c. 29, s. 11. 24, 25 Vict., c. 96, s. 51. 1889, c. 434.

If any person shall enter the dwelling-house of another with intent to commit any felony or other infamous crime therein, or being in such dwelling-house, shall commit any felony or other infamous crime therein, and shall, in either case, break out of the said dwelling-house, in the night-time, such person shall be guilty of burglary.

Sec. 75 (996). Burglary; breaking into certain houses or buildings, a misdemeanor. 1874-'75, c. 166. 1879, c. 323.

If any person shall break or enter a dwelling-house of another otherwise than by a burglarious breaking; or shall break and enter a storehouse, shop, warehouse, banking-house, counting-house, or other building, where any merchandise, chattel, money, valuable security, or other personal property shall be; or shall break and enter any uninhabited house, with intent to commit a felony or

other infamous crime therein; every such person shall be guilty of an infamous crime, and imprisoned in the penitentiary or county jail, not less than four months, nor more than ten years.

INDICTMENT. An indictment under sections 73 and 74 (Code, sections 996 and 997), containing but one count, alleging that defendant "unlawfully and wilfully did enter, in the night time, a gin-house in which there was cotton, meal and other personal property, with intent to commit the crime of larceny," and that "he was found by night in said house, with intent to commit the crime of larceny," is sufficient, since the crimes created in both sections are of a cognate character, and, though the bill does not set out the crimes in the language of the statutes, sufficient matter appears to enable the court to proceed to judgment. Tytus, 98-705. The indictment is not defective because it charges an intent to commit more than one offence. Christmas, 101-749.

EVIDENCE. Evidence that defendant entered a dwelling-house in the night time, having no right to be there, and fled on being discovered, is, in the absence of any explanation on his part, sufficient to be left to the jury. McBryde, 97-393.

Sec. 76 (997). Burglary or other felony; the intent to commit, an infamous crime. 24, 25 Vict., c. 96, s. 58.

If any person shall be found by night, armed with any dangerous or offensive weapon, with the intent to break or enter a dwelling, or other building whatsoever, and to commit a felony or other infamous crime therein; or shall be found by night, having in his possession, without lawful excuse, any pick-lock, key, bit or other implement of house-breaking, or shall be found by night in any such building, with intent to commit a felony or other infamous crime therein, such person shall be guilty of an infamous crime, and punished by fine or imprisonment, or both, in the discretion of the court.

BURNING WOODS.

Sec. 77 (52). No person to fire woods except his own, and notice thereof to be given. R. C., c. 16, s. 1. 1777, c. 123, s. 2.

No person shall set fire to any woods, except it be his own property; nor in that case, without first giving notice in writing to all persons owning lands adjoining to the woodlands intended to be fired, at least two days before the time of firing such woods, and also taking effectual care to extinguish such fire before it shall reach any vacant or patented lands near to or adjoining the lands so fired.

Sec. 78 (53). Penalty fifty dollars; guilty of a misdemeanor. R. C., c. 16, 8. 2. 1777, c. 123, s. 1.

Every person wifully offending against the preceding section shall, for every such offence, forfeit and pay to any person who will sue for the same fifty dollars, and be liable to any one injured. in an action, and shall moreover be guilty of a misdemeanor.

See NOLLE PROSEQUI.

CAPLAS.

CASTRATION.

See also MAIM.

Sec. 79 (999). Castration with malice aforethought. R. C., c. 34, s. 4. 1831, c. 40, s. 1. 1868-'9, c. 167, s. 6.

If any person, of malice aforethought, shall unlawfully castrate any other person, or cut off, maim, or disfigure any of the privy members of any person, with intent to murder, maim, disfigure, disable or render impotent such person, the person so offending shall suffer imprisonment in the penitentiary for not less than five nor more than sixty years.

Sec. 80 (1000). Castration or maiming without malice aforethought. R. C., c. 34, s. 47. 1754, c. 56. 1791, c. 339, ss. 2, 3. 1831, c. 40, s. 2.

If any person shall, on purpose and unlawfully, but without malice aforethought, cut or slit the nose, bite or cut off a nose, lip or ear, or disable any limb or member of any other person, or castrate any other person, or cut off, maim, or disfigure any of the privy members of any other person, with intent to kill, maim, disfigure, disable or render impotent such person; the person so offending shall be imprisoned in the county jail or penitentiary not less than six months nor more than ten years, and fined, in the discretion of the court.

WHAT DEGREE OF DISFIGUREMENT SUFFICIENT.-Where the maim consisted in biting off an ear, it is not necessary that the whole ear should have been bitten off, but it is sufficient if enough is taken off to alter and

impair the natural personal appearance, and render the person less comely to ordinary observation. Gerkin, 23 (1 Ired.), 121.

INDICTMENT.-On indictment for biting off an ear, it is not necessary to state whether it was the right or left ear. Green, 29 (7 Ired.), 39.

BURDEN ON DEFENDANT TO SHOW THAT THE ACT WAS IN SELF-DEFENCE.-Where defendant in a fight bit off the prosecutor's ear, it is incumbent on him to satisfy the jury that the act was done in self-defence, and though the jury should believe that the severance was the result of the violent manner in which the combatants were separated, yet if the biting was intentional, the maiming is still presumed to be "on purpose" unless defendant satisfies the jury that it was an act of self-defence. Skidmore, 87-509.

See INJURY TO STOCK.

CATTLE.

CERTIORARI AND RECORDARI.

See also APPEAL.

Sec. 81 (545). Writs of certiorari, recordari, and supersedeas, 1874-'5, C. 109.

Writs of certiorari, recordari and supersedeas are hereby authorized as heretofore in use. The writs of certiorari and recordari, when used as substitutes for an appeal, may issue when ordered upon the applicant filing a written undertaking for the costs only; but the supersedeas, to suspend execution, shall not issue until an undertaking is filed, or a deposit made to secure the judgment sought to be vacated, as in cases of appeal where the exccution is stayed.

PRAYER FOR INSTRUCTION OMITTED BY JUDGE IN CASE SETTLED.-An application for a certiorari which avers that a special prayer for instruction was asked in writing and in proper time, and was refused and exception noted, will be denied when it is not alleged that such exception was set out in the appellant's case on appeal, since if appellant did not set it out as an exception in his case on appeal, he can not complain that the judge did not incorporate it in the "case settled" by him. Had the exception been set out in the appellant's statement of the case, and the judge had omitted such prayer and the exception for its refusal from the "case settled," a certiorari would lie to have them incorporated. Black, 109-.

CLERK REFUSING TO SEND TRANSCRIPT UNTIL COST PAID.-Where the clerk refuses to send up the case on appeal until the cost of the transcript is paid, a certiorari will be issued to bring up the transcript, since the clerk is not entitled to his cost for the transcript in advance in criminal actions. Nash, 109-822.

WHEN MOTION TO DISCHARGE PRISONER IS DENIED.-Where a motion to discharge a prisoner after a mistrial is denied, the proper method to have the alleged errors in ordering the mistrial reviewed is by a petition for a certiorari in due form, setting forth the grounds of the application. Locke, 86-647.

OMISSIONS BY JUDGE IN CASE SETTLED NOT MADE BY OVERSIGHT.-A certiorari to correct a case on appeal will not be granted when it appears that the omissions complained of were not made by the judge by inadvertence or oversight, and there is no reason to believe that he would amend the case if given opportunity. Sloan, 97-499.

AVERMENTS IN APPLICATION CONTRADICTING CASE SETTLED.-Where the case on appeal is settled by the judge after a full hearing has been accorded, and the action of the court has been careful and considerate, no occasion for interference is presented, and the court can not listen to averments that contradict the statement of the court. Gooch, 94-982.

APPELLEE'S OBJECTIONS IN FORM OF COUNTER-CASE.-It is no objection to the objections filed by the appellee to the appellant's case that it is in the form of a counter-case, and not of specific objections. Gooch, 95-982.

RECORDARI TO HAVE CASE DOCKETED.-A warrant for bastardy was returnable at 10 a. m., but the justice, of his own motion, and without notice to prosecutrix, changed the place of trial to a place eight miles distant and in another township, and the hour of hearing to 1 p. m. It was raining, the roads were "in a wretched condition," and prosecutrix protested because she had no means of riding to the place of trial. The justice tried the case in the absence of prosecutrix and the state's witnesses, and discharged defendant. The prosecutrix gave notice of appeal, and the justice promised to send up the papers, but failed to do so, assigning as a reason the non-payment of his fees: Held, that on the case being brought up by recordari, a motion to docket the case was properly granted. Warren, 100-489.

WHEN AVERMENT OF MERITS IN APPLICATION UNNECESSARY.-In such case the appeal having been lost by the conduct of the justice, an averment of merits in the application for the recordari was unnecessary. Warren, 100-489.

WHEN WRIT GRANTED WITHOUT SECURITY. A recordari may be granted without giving security when no execution is stayed and no default is imputable to the relator. Warren, 100-489.

WRIT GRANTED IN FORMA PAUPERIS.~A writ of recordari may be granted in forma pauperis. Warren, 100-489.

NO APPEAL FROM ORDER DOCKETING A CASE.-An appeal from an order docketing a case brought up on recordari is premature and may be dismissed. Warren, 100-489.

APPLICATION DENIED.-As a matter of practice the supreme court will not send down a certiorari unless sufficient excuse is made to appear, but will on motion of the attorney-general, or adverse party, dismiss the appeal. Frizell, 111--722.

Where appellant, without whose default the appeal was not settled by the judge, fails to docket at the next succeeding term, an application for a certiorari at such term will not be allowed. Freeman, 114-872.

Where an insufficient record is sent to the supreme court the appeal will be dismissed unless it appears that the appellant is guilty of no laches, or unless a serious question is presented. May, 118-1204.