VOLUME I.
RALEIGH, THURSDAY,. FEBBTJARY 21, 1878.
NUMBER 44.
rpiA "TITVrkl7-lxr Porviafni I
' I
The case of Potts who was nominated
.for Postmaster of Petersburg has been
postponed another week.
v ... ' I I
Russia, snubs JEnglandj by informing its
representative at the court of :St. jPeters
lmrarh, in substance that the war in Tur
keyvnnd the advance of the Russian army
upon Constantinople, "is a question which
peculiarly interests the belligerents." Inn
other words, the British Lion ( will -please
keep its nose out of this little affair.; i
THE EUROPEAN STRUGGLE.
.Thelatest intelligence from Europe is
of a serious character. The Porto having
refused its consent that the English fleet
shouljl ; approach Constantinople,' ., it is
understood that orders have been issued
to the British admiral to force an entrance
into the Dardanelles. Russia has given
notice, that, in such iari event, the impe
rial forces -will occupy 'i the Turkish Capi
tal. ,Erery th ing satiy turn on ,the charac
ter of the Russian, occupation.' Should
the Turkish forts open Are on the British
Iron clads, then the result may be the
destruction of Constantinople, which, if it
should be", manned by Russian soldiers
will, without doubt, open the. ball, and
war will actually exist between the two
mightiest powers on earth.
Meanwhile, we are reclining happily
under our "own vines and fig-trees," with
none to molest or make us afraid.
Who wouldn't be an American citizen,
even if money is not as plentiful as some
folks wish ? f ; . r
271 E DIFFERENCE.
It is reported, that Ex-Governor Wal
ker, of Virginiaj expects to remove to
California after his term of service in
Congress expires. Walker is a Northern
man, who took up his abode in Virginia
at the close of the war and turned Dem
oerat, thereby getting into the good
graces of the; descendants of Poeahontris.
He was made Governor, and afterwards
elected to Congress from the Richmond
district. Haying weeded his' row he
now proposes to try a new field of action.
If Walker was a Republican, the
"magnificent Virginia Press" would be
howling over this desertion, ( and such
epithets as "carpet-bag scoundrel," would
be freely indulged in. In personal ap
pearance Walker resembles "Zeb," but
no more like "our Zeb," in many respects,
tlian the counterfeit picture of Hamlet's
father, or, to use a popular phrase, than
"chalk is like cheese." Walker is what
they used o tterm in the days of Van
Buren a Northern man with Southern
principles," while "Zeb" is "Buncombe"
to the bottom. ' r
Digest of Supreme Court Decisions.
' From the Daily Observer.
By Messrs. Gray fc Stamps, Attorneys at Law.
By Smith, CL J : , , . j
" Clark vs. Wagoner, et al., f rom Iredell
Motion denied. ' T '
The facts in this case are stated in 74th
N. C. Reports, p. 791 and again in76th
N. C, p. 463. The question before the
Court at this term is on a motion by the
plaintiff, to have the "judgment corrected
by taxing the costs against the defendants
on the ground that he has recovered' a
small part of the land in dispute, although
there has been no proof that the def cn
dants have had possession of that part or
withheld possessio.ndfrom the plantiff, or
committed any acts of trespass thereon..
Held, that: the plaintiff is not entitled
to the motion. In his complaint . he al
leged title, and that the defendants" with
held possession from - him. - The verdict
established his title to a small part j but to
recover damages or ; costs he must show
some wrongful act of defendants done on
that part to which he has 'shown title,
The defendants were not guilty-of a tort
in retaining possession of their own land
although they erroneously 4 claimed land
belonging to the plaintiff, and costs will
not be taxed against them. A
State vs, JNeedhamV from Randolph.
Judgment affirmed.- Evidence Confcs
Bions by prisoner. . ' t ", .'
Indictment for larceny and receiving
-oien goods. On the trial the Judge ex
eluded certain admissions made by the do
ant on the preliminary examination'
heft
tore the Mcriti?af
y not been instructed and put on his
b ru as required byctions 22 and 23,
-.ur battle's RcvisaL -A, witness,
o bad been present at the examination
before the Magistrate, testified that he
haH hnnrrl nr innnnnmnnk holl nut r
had heard no inducements held out to the
prisoner to confess. The State then offer
ed to prove eertain voluntary confessions
which were made by the defendant at in
terviews which the witness had with him
at his request. The defendant objected
to this' evidence on the ground that it was
to be presumed that the stone influence
which prompted, the confession before the
Magistrate continued to operate on his
mind, and that to render the evidence
competent it must be shown that he had
been previously informed that the state 1
ments he had made before the Magistrate
could not be used against him, and the
influence that induced them thus remov
ed. The Court admitted the testimony
arid the defendant 'expected, and after a
verdict of guilty and judgment, appealed
to this Court. .
Held, That the evidence' was properly
received, a the confession was proved to
be voluntary and made without the exer
cise of any influence appealing either tq
the hopes or fears of the prisoner. This!
case does noi fall under the rule laid
down in State vs. Gregory, 5 Iredell 315,
and State vs." Scales, lh. 420. State- vs.
Jefferson, Iredell, is cited and approved.
3 : -' f ii
By Reader J.:
, State vs. Harihan, f rom Watauga.
Error. Yeniie de vono . Murderman
slaughter. , '
; Tiis was an 'indictment for murder,
tried at Fall Term of Watauga Superior
Court. The facts are these: .The pris
oner, on coming to his house, looked
through a crack and saw the deceased,
whom he had previously suspected, with
his arm around his wife's neck, and other
acts enoughto satisfy him, and ran around
to the door and into his house, when the
deceased came at him with a knife, and
he killed him :
Held, Tliat though the situation was
not the very act, it was severely approxi
mate, and the killing was only Manslaugh
ter. - "
Held also. That, leaving adultery out
of the case, the fact that deceased was in
the prisoner's house in a hostile attitude,
and, upon the prisoner's entrance, coming
at him with a knife, and the prisoner,
from the necessity of - saving himself, kill
ing him, made the act but manslaughter
at most, and the prisoner needed not to
stand entirely on the defensive. On the
defensive simpljT, it was excusable homi
cide. The State offered in evidence the declar-
ations of the prisoner relating facts as set
forth : i i
Held, That he had a right to hhre the
law declared upon the hypothesis that
a w a
they were as stated.
; State vs. Smith, from Craven. Error.
Ventre de novo. FonrerY.-Variance.-Witness.
:
This was an indictment for forging an
order for $60.07, tried at Fall Term of
Craven Superior Court. There was no
evidence, as appeared by the record in
this eeurt, tending to show that the de
fendantHuad forged the order set out in
the indictment. The only evidence intro
duced related to two other orders for dif
ferent amounts than that named in the
bill. -
" i
x . ;
Held, Of course he ought' not to have
beeif convicted.
;:. Held, also, That it was error to allow a
witness, for the State to testify without be
ing sworn, th edefendant objecting.
By RoDMAjf. J.:-
Phillips vs. Holland, from Davidson.
Error., - ; , v-.
, . .
In 1872 the plaintiff commenced in the
Superior Court of Davie county an action
of .claim and delivery fo the possession of
two mules, alleged to be unlawfully de
tained, from him by the defendant. The
summons and requisition were issued to
Davidson and put in the hands of Jacob
Sowers, Sheriff of Davidson county, but
were not served. His Deputy went with
the plaintiff to th6 Clerk of DavieCourt
and stating that he had learned that the
mules were in Forsyth county, had the
Clerk to alter the requisition by striking
out "Davidson" and inserting "Forsyth."
The summons was subsequently altered in
the same way by the Deputy Sheriff. No.
written return was made on the summons
or requisition, but the original riapers thus
altered were sent to the Sheriff .of lor
syth. Tfie mules were not taken to For
sytlf but were sent by Holland in another
direction and sod. An action was snbse-
qnently begiih - by the plaintiff against
Sowers, the Sheriff of Davidson,-4 for
dammages sistained by his failure to serve
the process and seize tlie mules as required
in the order. During the . trial of the
cause of Phillips vs. Sowers, a motion was
made to have the process in Phillips "ys.
Holland restored to its oiginal form so as
to read as it did before it was altered and
when it was placed in the hands of Sheriff
Sowers. Judge Kerr granted the amend-J
raent and e defendant appealed.
Held. That - when the summons arifl
requisition were altered by being directed
to the sheriff of Forsyth by the Clerk and
at the instance of the i plaintiff, they be
came new and original process of the same
force and effect as if they had been origi
nally written as they then stood. If the
sheriff of Forsyth acbd on them he is
clearly .entitled that they shall remain in
his hands for his protection and as proof
of his authority. Even if he did not act
under them, he and th6 defendant and the
Sheriff of Davidson acquired a right that
they should remain as they were in the
hands of the sheriff of Forsyth, as evidence
of the fact that thej had been in his hands
and such a suit had been begun. Process
may be amended but not when third per
sons have acquired rights and the amend
ment is in such a matter that their rights
may be prejudiced by it. Bank of Cape
Fear vs. Williamson, 2 Tred. 147. and
Smith vs. Low, lb. 457.
The interest of the Sheriff of Davidson
that the process should reniain as it was
before the proposed amendment was made,
is like in effect and, for aught that ap
pears, equals in degree with that of the
plaintiff. The amendment asked for here
would certainly shift the burden of proof
of a material fact from the plaintiff and
throw it on the Sheriff, to the benefit of
which this Court does not see that the
plaintiff has made out any superior claim.
There was nothing .'irregular in the sus
pension of the trialin t&euiasc of Phillips
vs. Sowers to consider this motion to
amend. The order of procedure in a
Court must almost entirely be in the dis
cretion of the presiding; Judge, and it does
not appear that there was any abuse of
that discretion. There was error in allow-
Lans the amendment.
State vs. Matthews; and Humphreys.
Error. Venire de'novp.
The defendants were indicted at the
Fall Term of Yadkin Superior Court for
the killing of Coston Butner in June and
were tried at the Fall Term of Forsyth
Superior Court before Cox, Judge. The
facts in evidence as they relate to Mat
thews, stated generally, are these : But
ner, the deceased, and i the two defend
ants and some others were in a public road.
Humphreys charged Butner with having
sworn to lies acrainst I him and said he
could prove it by Matthews. According
to one witness ho said to Butner : "D -n
you, I will shoot you, you swore d d
lies against me and I can prove it. Come
up here, Sid Matthews." This witness
stated that Matthews then stepped up ;
deceased advanced three steps and struck
Matthews ar backhanded lick, knocked
him on his knees and j stamped at him.
When Matthews was down he was partly
on his side and the stamping was about
legs and then his body.; Another witness
testified substantially a above, except he
did not say that the djeceased r advanced
upon Matthews. He said that as M.
stepped up, deceased struck hitn and he
fell 'partly on his hands, when the deceas
ed kicked him, etc. Matthews rose and
about that time deceased commenced fall
ing backward, rose a second time,, stag
gered and fell and died in a short time.
No witness saw any blow with a knife
sriven. Another witness said that when
Matthews rose to his feet he saw him and
the deceased standingj confronting each
other with knives in there hands ; deceas
ed soorTfell and in a few minutes jdie3.
He died from a wound in his thigh abotjt
six inches below the groin. It was eyi
dent from the testimony that Matthews
gave the wound while he was on liis
knees or otherwise prostrate on the ground.
The Judge allowed it io be given in eyi-
denco that Matthews was small, crippled
and onobyed, and that the deceased was a
strong man, but refused to allow tho db
f endants to prove his character for violence,
to! which refusal they exepted. The de
fendants prayed for certain instructions
which the Judge read to the jury and
stated that "while they embodied correct
principles of law yet he would lay down
the following rules for their guidance in
this case," tfce. The jury rendered" a ver
dict of manslaughter, and the defendants
after sentence -to imprisonment in the
penitentiary, Matthews for five years and
Humphreys for ten years, appealed, :
Held, That the Judge erred in exclud
ing evidence as to the violent character
of the deceased, as it comes ; within the
exception to the general rule against
such evidence as laid down, in Turpin's
case, 77 N, 0.473.
-1st.- As to- Matthews : The virtual re
fusal of the Judge to give ; the instructions
as prayed for was proper since they were
less favorable to the defendants than they
were entitled to have. In instructing the
jury, the Judge, after correctly defining
murder, manslaughter and excusable homi
cide, in substance said : f"that when a
homicide is proved the law presumes mal
ice, but the presumption may be rebutted ;
by circumstances appearing in evidence
whether put in .on the part of the State
or the defendants." To this there can be
no exception ; the error in this part of the
charge was of omission only. He ought
to have gone further and informed the
jury that, if they believeb! the witnesses
who were uncontradicted, the circum
stances did rebut the presumption of
malice. As malice is a presumption which
the law makes from the fact of killing, it
must necessarily be a matter of law what
circumstances will rebut the presumption.
The jury must pass upon the existence of
the facts which constitute the circum
stances, but the Judge should instruct
them as matter of law that if certain
facts have been proved the presumption
is rebutted and they must acquit the de
fendant of murder. Whether the pre
sumption has been rebnt'ed or not is a
question of law just as legal provocation,
sufficient cooling time, deadly weapon,
reasonable time, negligence, fcc. State
vs. nUdreth,9th Iredell 429, cited and
approved.
The Judge in this case left the ucs:
tion of murder an open one for the jury,
and without disregarding his instructions,
they might have found the defendant
guilty of that crime although there was
no evidence of express malice, and the
legal presumption was rebutted by the
testimony of every witness, as to the sud
den and unexpected beginning of the af
fray. It cannot be said that because the
jury found the defendant guilty of man
slaughter only, he was not prejudiced by
the 'omission o the Judge. The true
question was between manslaughter and
homicide in self-defence. The attention
of the jury was distracted from that by
their being required to pass on the ques
tion of murder which wfis contradicted
by all the evidence, and: the defendant
was obliged to present his case to them
burdened by a weight of accusation from
which he ougt to have been relieved by
the instructions of the Judge.
The Judge also said : "If it appears
from the circumstances that Matthews had
reasonable grounds to apprehend that his
life was in imminent danger, he was justi
fied in taking the life of his assailant, but
there must be a necessity for taking life
from the fierceness of the assault before
he could be excused on the ground of
self defence." His Honor, omitted to say
that Matthews must have believed in the
reality of the tlanger ; what is more im
portant, he omitted to say. that if a man
who is assailed hlas reason; to believe that
although his assailant may not intend to
take his life, yet he does intend to and is
about to do him som enormous bodily
harm, and under this reasonable belief he
kills his assailant, it is homicide se def en
dendo and excusable. It will .suffice if
the' assault is felonious. The omission of
this qualification of the rule by the Judge
was no doubt simply inadvertent.
As to Humphreys : the Judge told the
jury that if he was present ;and did or said
anything calculated and intended to make
known to Matthews that he would help if
need be, by taking part in the fight or keep
ing others off, or egged him on, he would be
guilty of aiding and abetting and equally
guilty with Matthews." This, while per
haps, correct, was to a general, and did not
with sufficient particularity furnish thojury
with a rule which they could apply to the
facts. When first seen by: the witness,
Humphreys was cursing f deceased : when
deceased knocked Matthews down, Hum
phreys pit his hand in his pocket and said
he woukl dhoot the d d rasca1, when his
wife seized and held him until deceased fell
Another witness said that when Matthews
was down, H. said "stand back, I am going
to shoot the : '-i1'-' when his wife seized
him &c. He did not shcot. . , ' .
The Judge 'erred in leaving it an open
question to the Jury whether or not this
defendant :was guilty of murder. As he did
not commit homicide, there was no pre
sumption of malice ' In him to be rebutted-
To make him guilty .of murder ther must
have been a concert . between him and Mat
thews to kill the deceased, i
Although Humphreys had challenged the
deceased to fight with himt there was no evi
dence tending to prove that ha expected the
fight which took place, the one between
Matthews I and the deceased' If Matthews
acted i a self-defence, Humphreys was guil
ty of no crime. What H. said before the
fight must be excluded from consideration
because it was not intended or calculated to
provoke a fight between Matthews and the
df ceased. I What be said after the fatal
wound was given must also be excluded
because it could not aid or abet Matthews to
give it. What H. said during the fight wf
calculated to encourage Matthews and the
ury may have found that Humphreys was I
a pxiuciptu iu iub ujauoiauguMJf , uui viurjf i
alight also have found that he reasonably
believed that M. was about to be feloniously
killed and interfered to the extent be did to
prevent ai felony. The r-errorof the Judge
was id his failing to present particularly to
the jury the law applicable to these hypoth
etical cases, and in leaving it to them in a I
general way and without any particular in-
struetion to find whether H. ;dld or did not I
aid or encourage Matthews, i I
Shocking Murder. t j
A most horrible murder was commit-1
ed a few days since, in the farm of Wm.
1? . Atkinson in W ayne county, ten miles
west of Ooldsboro. The victims were a
man named Worley and bis wife. The
pair occupied a log cabin together with
three children all girls, the eldest five, the
next three and the youngest eighteen
months old. ,
The husband was found lying about ten
Feet from his log cabin door, with his
ieaa cur ; io pices wicn an axe. xiis wire
was lying just out of the back door. She
was evidently choked to death, though
her head, was badly 'hrtnsed from blows
with an axe. There were pools of blood
around each, presenting one of the most
horrible scenes ever witnessed, lne old-
est childr when asked "wno struck youif
papa ?"t said: "Uncle Noah meaning
Noah Cherry, an old negro man who
was engaged getting staves near by. ,i
1 . . . . .
Worley: was a tenant on Atkinson's
w ui, jvvau
The evidence, though somewhat cocflic-
ting, shows conclusively that Jfoah Cher-
ry comm-ucea ine awriu crime.
i me oiaesi aaugnter gives a piam state-
menc or ine anrair. one says : ,
r ii rr 01
"rapa was lying down in front of the
nre. jaotner was suting ui me cnair, ai
WorK ou h qiuiu uucie Mutii cau "
t rr i . i I
and said to Worley : "I am going to kill
you. ne men strucK mm. rapa rose
up, and went out, calling for help." j j
The dbg gavd Cherry trouble, but final-
-
y unerry killed woney, ana men ai-
acked the wife. The child says that he
ried to tie her mother, choked her and
i -' . i ' mi :: . .t 1 I
nen commiuea rape, xnis is snown oy a
caretni examination or pnysicians.
Other! facts show that Httle Tildie
Worley's story is true. The clothes of
the guilty wretcli were exhibited, which
wero covered with blood.
Noah ; Cherry is in jail. The excite
ment in the county is intense.
BY ALL MEANS BEAN EDITOR.
An editor, is the happiest being on
eartn. lie nas mxie .ori nouung 10 qo,
.1 TT I . Ti.il ' .. .it ! .. J . J .
anamspay uauuui eart 0 8i
t i !. . I i j .1 ?
His sanctum, with its Persian rugs and
Turkish icarpets, its costly furniture, its
magnmcem mirrors, us ueauuiiupicLurcs,
its complete library or splendidly-bound
books, its silver bell to summon tan at-
tendaiit,;ana,in snort, witn 1 its every tmng
....... ., ... i , -, . "-
that human ingenuity can ; devise, for his
comfort and pleasure,; ig aj perfect little
paradise, where he sits, or, lounges and
reigns ayoung. lord, with: the world of
lasmuu aim pii,ui , aw iiw wu, auu
-1 1 t r-i lJ
tnen anyoW can oe an eaitorno study,
no prcparauou, uu uruins, noining out a
Uttlcinoaey to start.witn, , and once star-
lcu ; 4 F" Jvu
steady stream, and the chief labor of your
Wire is to spenti it. s - icr.iue laoor oz
editing a newspaper, that ; is all . moon ,
shine. ' !A mere glace at tlie columns of
a newspaper is cnougn to convince you
that it requires no labor to edit .it, and
less brains. It is certainly a glorious life,
that of an editor; a life of luxurious ease
and of elegant leisure a life filled, like
that of the young lover in his first dream
and moonbeams. " lliat U jneiisare t
editors is one of the-strangest tilings be
neath the stars. True, there, must be
doctors arid lawyers and merchants and
shoemakers and peanut dealers - and the 1
like, and jail these callings must be filled
by somebody,-7 but there r are enough to
fill them, and why they don't become
editors and lead tho . life of opulen , prin
ces is a thing that staggers us.-But after
all," it may be that it is a mere matter of
taste. It may, be repugnant to some
natures jto become editors'.- The life of
ease and elegance and luxury, and exemp
tion from all care, and toils and debts and
dims, would soon become a bore to. him,
and ho would spend his nights in dream
ing of ploughs and pitchforks and reaping
machines, and squander his. days in devis
ing some plan for swapping places with
a blacksmith 8 apprentice or a s.treet-car
ariver. -l.OUlSVlUe JOUrtr-tfOurtlOJ,
CAN TUIS $E T&UEt
HIDIKO UISSHAFXir BOW FROU BIS BIRTH
UNTIL HE IB TWEMTY-SEVEtf. i
One of the most remarkable instances
dn record of parental devotion , and of
success in keeping secret a family afflic-
tion may be found, in the family of a citi
zen who is keeping a drinking saloon in
the western part of the city. Twenty
years asro he kept a house on Wes
fem About that time a number of
I houses in the vicinity Were destroyed by
1 fire the night, including his residence,
I wjfc jn a delicate condition, suffered
1 mncn from fright, and consequently gave
birth to a monstrosityf-an offspring with-
out any of the better senses of a living
creature, except that of sight without
toes or finerers : deaf . t sneechless. without
i . cj ' ' a '
the least spark of intellect or instinct.
I Twenty-seven years have passed, and the
j family have kept this creature in the
household, secreted in a room, and only a
few 0f tho neighbors besides, who are on
the most intimate - relationhavtr known ,
0f its existence. It 'eats 'when food is
placed to its mouth, and is kept in a clean-
ly conditionby the most constant care.
a long beard has grown on its face. It
L about three feet in length. It crawls
I aDOat some." but moves with srreat difficul-
1 ;
tYt hat such a creature has lived so
w is sioMlar. That a family instead
0t niacins it in some asylum. Has en-
dured its presence in Uieir midst, and
nurtured it in assiduous privacy j through
aU ef these years is a strange and afllic-
tm intident 0f paternal devotion. Oin-
r t
nini
tvu: v i; i..t
th tender solicitude Jwhich the oowers of
Europe unite in expressing for the Chris-
of Constantinonle. Great Britain.
1 VA& WW ' MA W VUUV1 V VJk Wli VV W Ck7
not chan 4 it8 intention" to protect
these unfo rtunatea with at least five of
her heaviest iron clads, ; Austria, also.
proposes to come to thoir rescue with a
flfifit n thli Dardanftllns. And nnw. Prinr-e
Gortschakoff announces that this singular
attack of Christian zeal awakens a response
m the breast of EusW, and that rather
than be outdone by her rivals in this new
crusade, the Rnssian Army shall immedi-
ately occupy the works about the city
and surround the! much-protected Chrit-
ti&ns with its benevolent Cossacks , and
cannon, it is only tne hard-hearted
TT . WTm . m ,
xrk ,, by refufiinff firman- ,a tll.
' ' " " : O " T: !' !'
Enliah AnstrW allowing tliPiV An
I. i o I
pr0ach to the vicinltv of the ohiW nF
their unselfish affection, "interferes witli
beautiful display of humanity. Mean-
wllile tho "Christians" have not been
I heard from
N. Y. Times.
Thkric Must Be Paht TTntil thn
meUeuium comes parties must exist. They
W neces8ity; The men are theorists
and dreamers who insist that an adminis-
I tration is a mere detective asency to col-
. - . .. w -
lect the revenues 4nd prosecute for crimes ;
uhat it ncedg no lW
i pr0pagandism, po .earewhetrier or n6t
ajnai-orit7, of the country shalLrallv to.
I its : support throu2U, party oreanuation
givlng it majorities in Congress to put its
idcas into jaw8., This.is. all chimerical
and! f oobsh. ' Ah .administration should
he concerned in matters of statesmanship,
and it ought to use its power ,to mairnify
and establish the .ideas that the people
endorsed at the election. This can bo ,
jdone only through the human . agencies
I that ."politics" !sei in ; motion. " Thus far
it is the business of the President tobo a