State v. Isaac Mooney.

THE STATE v. ISAAC MOONEY.

A mere threat unaccompanied by an offer or attempt to strike, is not an assault.

ASSAULT, tried before Little, J., at Fall Term 1867 of the Superior Court of WILKES.

The prosecutor, with some other persons, had gone to Mooney's house, and, after some conversation, a quarrel arose, in the course of which insulting language was used by both parties. Thereupon the defendant ordered the others to leave his house. At or about the same time he seized his gun; the witnesses differing as to whether he did this immediately, or after finding that the prosecutor and his party did not leave. A scuffle for the gun ensued between the defendant and some members of his own family, and the latter finally got possession of it. The defendant did not present it or attempt to make use of it. As the prosecutor and his friends were leaving the premises the defendant followed them and seized an axe, getting near enough to throw it, but the witnesses differed as to whether he was near enough to strike with it. He did not attempt to use it. Subsequently, upon being dared to come out, he advanced again with the axe but did not get nearer to them than twenty-five or thirty yards.

The court charged the jury that in any view of the testimony an assault had been committed by the defendant with both the gun and the axe.

Verdict, guilty; Rule for a New Trial discharged; Judgment, and Appeal.

No counsel for the appellant.
Attorney General, contra.

Den v. Love.

READE, J. His Honor's charge "that in any view of the case, the defendant was guilty," is so broad as to entitle the defendant to a new trial, if there is any view consistent with his innocence.

PER CURIAM.

After a careful consideration of the testimony, we are obliged to say that in no view of the case is the defendant guilty.

When the defendant ordered the prosecutor and his crowd to leave his house, as he had a right to do, it may have been rude behavior to seize his gun at the same time; but as he did not point his gun, or in any way offer or attempt to use it, there was certainly no assault, which is an offer or attempt, and not a mere threat, to commit violence. And so the picking up of the axe within some twenty-five yards of the prosecutor, without an offer or attempt to use it, was not an assault. There is error. This opinion will be certified.

JOHN DEN v. JAMES R. LOVE.

New trial.

The Ordinance of the 23d June 1866 which changed the jurisdiction of the courts, prevented an action from abating before or at Fall Term 1866 by the death of a defendant in 1864, after the Fall Term of that year.

(Doe v. Avery, ante, 238, cited and approved.)

TRESPASS, Q. C. F., before Mitchell, J., at Fall Term 1866 of the Superior Court of McDoWELL.

A motion having been made for notices to issue to the executors of the defendant, upon a suggestion that he was

Den v. Love.

dead; on its appearing to the court that he had die in the Fall of 1864, after the Fall Term of the court, the motion was refused, and the suit adjudged to have abated. From this judgment the plaintiff appealed.

No counsel for the appellant.
Merrimon, contra.

READE, J. Before the Ordinance to change the jurisdiction of the Courts, &c., (23d June, 1866,) this suit would have abated by reason that two terms had elapsed after the defendant's death without making his executor a party. But that ordinance provides that the time elapsed since 1st Sept. 1861, barring actions and suits, or presuming the satisfaction or abandonment of rights, shall not be counted. That ordinance prevented this suit from abating. We so held in Morris v. Avery, ante, 238. His Honor's ruling in this case was before that decision.

There is error. Let this be certified, &c.

State v. Dula.

THE STATE v. THOMAS DULA.

Where there is any evidence of an agreement between two or more to compass the death of a third person, the decision of the court below that such evidence is sufficient to establish the agreement, (preliminary to the admission of the acts, &c., of one of such persons as evidence against the other) cannot be reviewed in the Supreme Court.

Although in investigating the preliminary question as to the agreement, evidence of the naked declarations of one of the parties is not competent: yet if such declarations make part of the act charged in the indictment, it is otherwise.

In order to support an exception to the exclusion of certain testimony,

such testimony must appear to have been relevant.

What one says in via, as to the place to which he is going, is competent evidence to establish the truth of what he says.

It is no ground for an arrest of judgment that the name of the State is omitted in the body of the indictment; or that the memorandum of the pleas of two defendants is prefaced by the word "saith." (State v. Dula, ante 211, and State v. Lane, 4 Ire. 113, cited and approved.)

MURDER, tried at a Court of Oyer and Terminer for IREDELL, upon the third Monday of January 1868, before Shipp, J.

The prisoner was charged as principal in the murder of one Laura Foster, in Wilkes County, in January 1866; one Ann Melton being charged in the same indictment as accessory before the fact, but not being upon trial, in consequence of an affidavit made by the prisoner.

The State relied upon circumstantial testimony, and upon the acts and declarations of Ann Melton in furtherance of an alleged agreement between her and the prisoner to commit the homicide. To establish the agreement evidence was given to the court that the deceased. was at home, at her father's, on Thursday night the 24th of January, but on the next morning was gone, as was also a mare that had been tied in the yard. Early on Friday she was seen upon the mare, about a mile from home, going in

State v. Dula.

the direction of "the Bates place." She was not seen alive after that, but subsequently her body was found rudely buried in a laurel thicket near that place, and there was a wound upon her left side piercing the cavity of the body. There was evidence that the prisoner was in the habit of criminal intercourse with both the deceased and Ann Melton; that some short while before he had contracted a disease from the deceased and had communicated it to Ann Melton; that he had threatened to "put through" whoever had given it to him; that he had been with the deceased at her home on the Sunday and Monday before she disappeared, and there had private conversations with her; that on Thursday and Friday he had had private interviews with Ann Melton at her home, and on a ridge near her home; that he had sent for liquor in a canteen when at her house on Thursday, which was brought there in his absence: whereupon, Ann Melton had sent for him by a little girl, in a secret and singular manner, to come and get it, but her messenger did not find him; that afterwards he had come to her mother's house, and after a private conversation between them, he and Ann went off in opposite directions; that during the same day he had been at Ann Melton's house, saying, he had met her upon a ridge near by, and that she had told him where to get the canteen and some alum; that he had borrowed a mattock during the day from her mother and was seen with it near "the Bates place;" that on Friday morning he was seen travelling in the direction of "the Bates place," by a road which ran parallel with that by which Laura Foster was seen going: that Ann Melton, after leaving her mother's, did not return to her own house until Friday morning, when her shoes and dress were wet, and she retired to bed remaining there most of the day; after she had gone to bed

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