suddenly assaulted in the manner testified to by the witnesses, and they used such force as was or reasonably appeared to them to be necessary, the jury taking into consideration the character of the deceased, the frame of mind in which they had been and were at the time, the threats of one of them, and all the other testimony, we think the defendants were entitled to an instruction that it was excusable homicide. Of course, if the jury should find that the defendants Castle and Garland went there for the purpose of provoking a difficulty, and not for the bona fide purpose of discharging their duty, and in the prosecution of such purpose they killed the deceased, they would be guilty of manslaughter, at least; and, if the jury should further find that the deceased made no assault upon them, they would be guilty of murder, at least in the second degree.

Un

The defendants further except to his honor's charge for that he repeatedly said to the jury that the burden was upon them to prove to their satisfaction the existence of the facts necessary to reduce the grade of the offense, or to mitigate or excuse the homicide. doubtedly the general rule as stated by his honor is correct, but we think that he should have gone further, and said to the jury that, if the facts and circumstances accompanying the homicide were given in evidence by the state's witnesses, the defendants were not called upon to introduce other testimony, but could rely upon the state's evidence for mitigation of the grade of the homicide or for an acquittal. See State v. Willis, 63 N. C. 26.

His honor said to the jury in conclusion: "But it is incumbent upon the defendants to satisfy you that these circumstances and state of facts have been shown to your satisfaction." We think that this was calculated to leave the impression upon the minds of the jury that the defendants were required to introduce independent evidence to mitigate or excuse the homicide. As we have seen, if there was any evidence in the state's testimony which tended to establish the defense, it was the duty of the jury to consider it, as tending to sustain the plea of self-defense.

The testimony in this case shows a course of conduct on the part of the deceased which placed the defendant Castle, with the responsibilities resting upon him, and his duties not only to his employer but to the large number of men under his charge, in an exceedingly embarrassing position. He was in charge of a lumber camp of some 50 or 60 men. It was absolutely necessary to a discharge of his duty both to his employer and the men that such conduct as is testified to by the state's witnesses on the part of the deceased should be suppressed, and that persons conducting themselves as did the deceased should be discharged; and if the jury found (and we think they would have been fully justified in finding) that he was endeavoring to discharge his duty, and in doing so

the conduct of the deceased was such as to create in his mind a reasonable apprehension that they would execute their threats and continue in their course of conduct, he was not only justified, but it was his duty, to use such means as were necessary to rid the camp of such persons. It certainly was his duty to discharge them, and, to do so promptly, he had a right to go to their room for that purpose; and in view of what had occurred, and the conduct of the deceased in the dining room and after they had gone to their room, it was but common prudence for him to carry a sufficient number of men to prevent or repress any further violence. His language upon entering the room, "Boys, here is your time," is entirely consistent with the lawful purpose on his part. In the deadly encounter which immediately followed, and in which the homicide was committed, we think that the defendants were entitled to the instructions asked by their counsel, and that the modification of them was calculated to prejudice them.

Upon the whole record, we think the defendants are entitled to a new trial.

1. Where the court sustains a plea of former conviction after the jury has returned a verdict of guilty, the proper practice is to strike out the verdict and sustain the plea as upon a demurrer by the state; and to enter a judgment of not guilty on the verdict as rendered is improper.

2. A conviction of violating a city ordinance punishing the disturbance of the good order and quiet of the town by fighting, etc., is not a bar to a prosecution by the state for an assault.

3. Where the trial court sustains a plea of former conviction and enters a judgment of not, guilty, without striking out the jury's verdict of guilty, it may, on reversal, proceed to enter judgment of conviction.

Appeal from Superior Court, Edgecombe County; Ferguson, Judge.

J. M. Taylor was prosecuted for an assault with a deadly weapon, and from the judgRement of acquittal the state appeals. versed.

The Attorney General, for the State.

CONNOR, J. The defendant was indicted at the September term, 1903, of the superior court of Edgecombe county, for an assault with a deadly weapon. The record states that he pleaded "Not guilty." The case on appeal states that the defendant "admits the assault, but contends and introduces evidence

tending to prove that no deadly weapon was

2. See Criminal Law, vol. 14, Cent. Dig. § 404.

used. The defendant pleads former conviction, and offers in evidence the record of the mayor's court of the town of Tarboro, which shows that in August, 1902, a warrant was issued by the mayor against the defendant charging that he 'did unlawfully violate an ordinance of the town of Tarboro, to wit, Ordinance No. 10, section 1, by fighting and disturbing the peace, contrary to said ordinance, against the statute in such cases made and provided, and against the peace and dignity of the state.'" The defendant was arrested upon said warrant, and judgment rendered as follows: "After hearing the evidence, and it appearing to the court that the defendant pleads guilty, it is considered and adjudged that the defendant pay costs, $2.85."

Ordinance No. 10 is in the following words: "No person or persons shall be permitted to disturb the good order and quiet of the town by fighting, making loud noises, using profane, boisterous and indecent language or in any other manner, under a penalty of twenty five dollars." The mayor testified, "I issued this warrant under Ordinance No. 10, and tried the defendant for disturbing the peace of the town by fighting, exactly as set out in the warrant. There was no evidence of any disturbance by making loud noises or using profane, boisterous, or indecent language. The evidence disclosed no disturbance or noise except the act of striking the said Will Pope. * * The warrant shows what I tried Taylor for." At the close of the evidence the defendant asks the court to charge the jury "that upon the record on evidence the defendant has been tried and convicted of a simple assault for the offense under investigation." The court declined to give the charge asked, but reserved its opinion.

*

The jury returned a verdict of guilty of a simple assault. The solicitor prayed the judgment of the court. The court announced that, having reserved its opinion as to whether the plea of the defendant of former conviction is good upon the record of the mayor's 'court introduced in evidence, he adjudges said record is sufficient to sustain the plea of former conviction, and therefore directed the clerk to enter a judgment of "Not guilty," and directed that the defendant be discharged. The state appealed.

The record proper, which controls when conflicting with the case on appeal, states: "The jury upon their oath say that the said J. M. Taylor is not guilty, in manner and form as charged in the bill of indictment, of an assault with a deadly weapon, but is guilty of a simple assault, and thereupon it is ordered by the court that the said J. M. Taylor go without day" (the court holding the plea of former conviction as set out in the case on appeal to be good).

The record presents a singular condition of the case. There is a verdict of guilty of an offense of which, by reason of the form of the indictment, the court has jurisdiction. State v. Fesperman, 108 N. C. 770, 13 S. E.

14, and cases there cited. The verdict is left standing as rendered with a judgment of "Not guilty." His honor, having, upon consideration of the question of the sufficiency of the evidence to sustain the plea, decided against the state, should have stricken out the verdict and sustained the plea as upon a demurrer by the state, from which an appeal could be taken. The confusion in the record arises from the failure to observe the procedure pointed out by this court in several cases. Smith, C. J., in State v. Pollard, 83 N. C. 597, discusses the authorities, and says: "It is true, double pleading is allowed only in civil cases under the statute of Anne, as was said by Pearson, C. J., in State v. Potter, 61 N. C. 338, and the jury could not be impaneled to try at one time more than the issue of a single plea; but the difficulty is obviated by allowing the second plea, and a jury trial on it, after the verdict on a preceding plea, and the reasonableness of this practice commends itself to our approval.” The court in State v. Respass, 85 N. C. 535, 45 Am. Rep. 700, approves the practice pointed out in Pollard's Case. State v. Washington, 89 N. C. 535, 45 Am. Rep. 700: "Regularly, the two pleas of former conviction and not guilty should be tried separately, since the plea of former conviction implies an admission of the criminal act and is inconsistent with an absolute denial. But the practice of trying them together has become not unusual, and is often convenient." State v. Winchester, 113 N. C. 641, 18 S. E. 657.

For the purpose of disposing of this appeal we assume that the solicitor demurred to the evidence offered to sustain the plea, and that the court overruled his demurrer. Thus viewing the case, we think that his honor was in error. It is well settled that a town ordinance cannot make criminal or prescribe a punishment for acts which are indictable at common law or by statute. State v. Austin, 114 N. C. 855, 19 S. E. 919, 25 L. R. A. 283, 41 Am. St. Rep. 817; State v. Stevens, 114 N. C. 873, 19 S. E. 861. It is equally well settled that they may pass ordinances prohibiting disorderly conduct, and impose a penalty for their violation, etc., and that Ordinance No. 10 of the town of Tarboro is valid. It is substantially like the one set out in State v. Cainan, 94 N. C. 880. Merrimon, J., says: "The ordinance mentioned in the warrant has reference to and forbids such acts and conduct of persons as are offensive and deleterious to society, particularly in dense populations, as in cities and towns, but do not per se constitute criminal offenses under the general law of the state. The purpose of the ordinance is to promote good morals, the decencies and proprieties of society, and prevent nuisances and other criminal offenses which might result from the acts and conduct prohibited." In State v. McNinch, 87 N. C. 567, Ashe, J., says: "His honor seems to have had in his mind the crime of nuisance at common law, but the

It

ordinance of the city was evidently intended to create different offenses from that. was a police regulation, adopted not merely to secure the citizens of the city against annoyance, but to prevent the evil example of such immoral conduct."

By section 3820 of the Code the violation of a town ordinance is made a misdemeanor, jurisdiction whereof is vested in a justice of the peace. Section 3818 confers upon the mayor the jurisdiction of a justice of the peace "in all criminal matters arising under the laws of the state or under the ordinances of said city or town." The warrant issued by the mayor was sufficiently definite. State v. Merritt, 83 N. C. 677. "A justice of the peace, and as well the mayor, has jurisdiction of a violation of a town ordinance because it is a misdemeanor, and the punishment thereof cannot exceed a fine of $50 or imprisonment for thirty days." State v. Cainan, supra.

The offense for which the defendant is indicted in the superior court is a violation of the law of the state-an assault with a deadly weapon. This brings us to the question whether the two prosecutions were for the same offense. Ruffin, J., in State v. Nash, 86 N. C. 651, 41 Am. Rep. 472, thus states the law: "To support a plea of former acquittal, it is not sufficient that the two prosecutions should grow out of the same transaction, but they must be for the same offensethe same both in law and in fact." "A single act may be an offense against two statutes, and, if each requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." State v. Stevens, supra; State v. Robinson, 116 N. C. 1046, 21 S. E. 701. Disorderly conduct, of which it is the duty and province of municipal authorities to take cognizance, may not, and often does not, involve an assault. When it does so, the ordinance is directed against the disorderly conduct, and the law of the state is directed against the breach of the peace. Bleckley, C. J., in McRae v. The Mayor, etc., 59 Ga. 168, 27 Am. Rep. 390, says: "Many transactions which are made penal by the general law of the state may at the same time afford material for a proper police ordinance. The state may Ideal only with the central element of the transaction, which is fringed all around with adjuncts that ought to be prohibited by ordinances, as highly mischievous to the quiet of municipal society. In the country such adjuncts might not need repression, for there they might be comparatively harmless. In a city we think a man may fight in a way to violate an ordinance without being guilty of an assault and battery."

The defendant was tried before the mayor for a misdemeanor in violating the ordinance. It may be that he was not guilty upon the evidence. However this may be, the offense

of which he was convicted was different from an assault, for which he is indicted. Robbins v. People, 95 Ill. 175. The demurrer of the solicitor should have been sustained. As the verdict upon the plea of not guilty has not been set aside, we see no reason why the court may not proceed to judgment. State v. Battle, 130 N. C. 655, 41 S. E. 66. Error.

GRIFFIN v. ATLANTIC COAST LINE R. CO.

(Supreme Court of North Carolina. Dec. 18, 1903.)

CARRIERS INJURIES TO PASSENGERS COMPLAINT INCONSISTENT CAUSES OF ACTIONSUBMISSION TO JURY-ISSUES.

1. Plaintiff alleged that he was a passenger on defendant's train, and that he was injured by the premature starting of the train while he was attempting to alight. In an amendment to his complaint, he charged, in addition, that the injury resulted from the negligence of the porter of the train in commanding plaintiff to alight before the train had stopped, etc. Held, that such causes of action were inconsistent, and necessarily could not both be true, and hence it was error for the court to submit the case on the single issue as to whether plaintiff was injured by defendant's negligence as alleged in the complaint, without requiring a finding as to which version of the accident alleged was true.

Clark, C. J., dissenting.

Appeal from Superior Court, Halifax County; Moore, Judge.

Action by Hiram Griffin against the Atlantic Coast Line Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Thos. N. Hill, Day & Bell, and Geo. B. Elliott, for appellant. Walter E. Daniel, E. L. Travis, and Claude Kitchin, for appellee.

CONNOR, J. This action was prosecuted by the plaintiff for the recovery of damages alleged to have been sustained while in the act of alighting from the defendant's train. The plaintiff, at the appearance term, filed his complaint, alleging that on the day therein named he purchased a ticket of defendent's agent at Kelford to Palmyra-both stations being on defendant's road-and boarded the train, delivering his ticket to the conductor; that, when the train stopped at Palmyra, plaintiff proceeded to get off, and, while in the act of stepping off, without notice or warning to him, the engineer carelessly, negligently, and wantonly moved the train suddenly, giving a jerk to the cars, by which the plaintiff was thrown to the ground, breaking his wrist and otherwise injuring him; that the defendant's agent in charge of the train negligently and carelessly failed to give him a reasonable time in which to get off the train; and that by reason of his injuries he sustained damage. The defendant denied the material allegations of the complaint, and, for a further defense, said that when the train was ap

proaching the station at Palmyra, and before it had stopped, the plaintiff negligently jumped and alighted from the train, and in doing so fell and was injured, while the train was still in motion, and before it stopped, and that he thereby assumed the risk of being injured, and his negligence was the proximate cause of his injury. The defendant also set up contributory negligence. At November term, 1902, the plaintiff, by leave of the court, amended his complaint, and alleged that when the train got near Palmyra the porter called said station, and, as the train drew near thereto and slowed down, the plaintiff got up from his seat, and went to the door of the car, to be ready to get off when it stopped; that when the train got to the station, and was moving very slowly, having nearly stopped-the plaintiff believing it had stopped-the porter, who had also come to the door, and was standing on the platform, told the plaintiff to get off, and that, in obedience to the direction of the porter, and believing by reason thereof that it was the time and place to do so, he stepped off the train, and was violently thrown to the ground, sustaining the injuries set forth. The defendant denied the material allegations of the amended complaint.

Without objection, his honor submitted the following issues: Was the plaintiff injured by the negligence of the defendant as alleged in the complaint? Did the plaintiff contribute to his injury? And an inquiry as to damages.

* * *

As said by Mr. Justice Douglas in Tucker v. Satterthwaite, 120 N. C. 1, 118, 27 S. E. 45: "We are not inadvertent to the long line of decisions laying down the rule that the refusal of the court to submit an issue tendered by either party cannot be reviewed by this court unless exception is taken in apt time, nor do we wish to be understood as reversing or modifying it. What we now say is that section 395 of the Code is mandatory-binding equally upon the court and upon counsel; that it is the duty of the judge, either of his own motion or at the suggestion of counsel, to submit such issues as are necessary to settle the material controversies arising in the pleadings; and that in the absence of such issues, or admissions of record equivalent thereto, sufficient to reasonably justify, directly or by clear implication, the judgment rendered therein, this court will remand the case for a new trial." In Pearce v. Fisher (at this term) 45 S. E. 638, two defendants were sued for injury alleged to have been sustained, one as landlord, and the other as a tenant, of a part of the hotel in which the plaintiff's goods were stored. The following issue was submitted: "Was the plaintiff injured by the defendants, or either of them, as alleged in the complaint?" The jury answered the issue: "Yes." Mr. Justice Walker says: "How can this court decide, from the verdict as thus rendered, whether the jury intended to say

that the plaintiff was injured by both of the defendants, or only by one of them? To construe the verdict either way would be the merest conjecture. The answer of the jury to the issue would be just as appropriate if only one of the defendants had caused the injury as it would be if by joint action they had caused it. * * * Issues should not be submitted in such a way that when they are answered it will be left doubtful as to what the jury have found with respect to the liability of the parties." It is true, in the case cited the defendant excepted to the issue. In this case it will be seen that the allegations in the original complaint and the amended complaint are based upon entirely different, if not contradictory, statements of the plaintiff's cause of action. The first says that as he was proceeding to alight from the train the engineer gave a sudden jerk, which threw him violently to the ground, etc. If the jury found this to be true, he was clearly entitled to recover. The authorities in this court are uniform to that effect. The other cause of action consists of the allegation that as the train approached Palmyra he was told by the porter to alight; that the train had slowed down, and was moving slowly, having nearly stopped-he believing that it had stopped-and that the porter, standing on the platform, directed him to get off; that in obedience thereto he did step off, and, because of the fact that the train was moving more rapidly than he had supposed, he was thrown to the ground and injured. Now, certainly, both of these allegations cannot be true, nor is it so contended. In one view of the case, the plaintiff was injured by the negligence of the engineer, the porter taking no part in the transaction. In the other view, he was injured by the negligence of the porter, the engineer being entirely free from blame. We have held that the two causes of action may be joined in the complaint, and appropriate issues submitted to the jury presenting each phase of the controversy. Simpson v. Lumber Co. (at this term) 45 S. E. 469, and cases therein cited. The exception of the defendant to the amendment must therefore be overruled.

We do not deem it necessary to discuss the exceptions to the charge, because, if the issues had presented each cause of action separately, many of the exceptions to the charge would not have arisen. Such error as may have crept into the charge is attributable to an effort to present the case to the jury in two contradictory aspects under one issue. The principles governing the rights and duties of passengers on railway trains have been so frequently and recently decided by this court that it would seem unnecessary to repeat them. If the jury found from the evidence that the facts alleged in the original complaint were true, and further found that there was no contributory negligence, the plaintiff would be entitled to recover. The same may be said

in respect to the second cause of action. But surely they could not answer both issues affirmatively.

The plaintiff testifies as follows: "I was sitting in the car, and the porter came through and called out, 'Palmyra Station.' I got up and walked to the door just as it got to the station. I stood in the door until it about hit the station, and it ran by the station, and temporarily stopped. As it ran by the station, the porter, who was standing on the platform of the car on the other side of me, came back and told me to get off. To the best of my belief, the train had stopped. As I was in the act of stepping off the second step from the bottom, it jerked and threw me out." This testimony, if true, entitles the plaintiff to recover. But it does not correspond with the allegation in the original complaint, in which no suggestion is made that he alighted from the train at the direction of the porter. The gravamen of that allegation is that the defendant's agent carelessly failed to give him a reasonable time in which to get off the train, and that almost immediately after stopping, before the plaintiff could possibly alight, he carelessly and negligently started the train. Nor does the testimony correspond with the allegation in the amended complaint, the gravamen of which is that the porter carelessly and negligently told him to get off the train, and that by reason thereof he believed that it was the time and place to get off, and that he could safely do so. He stepped off, and was violently thrown to the ground. The inference which we draw from this allegation is that, at the time the porter told him to alight, the train was moving too rapidly for him to do so safely, but that he relied upon the porter's judgment, and, believing that he could safely alight, was thrown from the train. While we recognize the well-settled principle that pleadings are to be construed liberally, with a view to substantial justice between the parties, it is equally well settled that the proof must conform substantially to the allegation. As was said by this court in Parsley v. Nicholson, 65 N. C. 209: "The rules of pleadings at common law have not been abrogated by the Code of Civil Procedure. The essential principles still remain, and have only been modified as to technicalities and matters of form. The object of pleading, both in the old and the new system, is to produce proper issues of law and fact, so that justice may be administered between the parties litigant with regularity and certainty." The cause of action stated in Simpson v. Lumber Co., supra, was the negligent conduct of the defendant in the discharge of its contractual duty to the plaintiff. It is allowable for the plaintiff to allege different acts of negligence, or that the negligence was committed in different ways. "It makes no difference, with respect to the plaintiff's right to recover, whether the burning was caused by a defective engine, or by setting on fire combustible material carelessly left by the defendant on

its right of way." So in this case the same legal result would follow with respect to the plaintiff's right to recover, and the measure of damages, whether the injury was caused by the negligence of the engineer or of the porter. But as we have said, it could not be, in view of the allegations, the negligence of both. The issues should have been so submitted that the attention of the jury would have been directed to the testimony in both aspects of the case, so that, under proper instructions from the court, they would have answered the issues accordingly as they believed the evidence. If they had answered the first issue, in respect to the defendant's negligence, "Yes," and the second issue, in respect to contributory negligence, "No," that would have ended the controversy. If, however, they had answered the issues in respect to the first allegation in the negative, they would then have proceeded to consider the issues directed to the second allegation.

To the end that the cause may be submitted to a jury with issues drawn in accordance with this opinion, a new trial must be had. New trial.

the view of the court that "the same legal result would follow with respect to the plaintiff's right to recover and the measure of damages, whether the injury was caused by the negligence of the engineer or of the porter," it seems to me that it is immaterial which it was, and no detriment was caused by the jury not finding specifically which servant of the company was to blame. The defendant was to blame in either case, and that is all the plaintiff is called upon to prove. The jury have found the fact on which the plaintiff's right to recover depends, to wit, that he was injured by the negligence of the defendant in alighting from its cars at Palmyra at the time mentioned, and being thrown to the ground. The plaintiff could state the circumstances in his complaint in the different phases to meet the proof that might be offered. Simpson v. Lumber Co. (at this term) 45 S. E. 469. But that does not require an issue as to each, but the one issue "whether the plaintiff was injured by the negligence of the defendant as alleged in the complaint" should be sufficient, especially since the defendant did not ask for another issue, nor except to those submitted. Had the party been killed, and his personal representative had alleged, from uncertainty of evidence, the different phases besides the two in this complaint that he got off on the right-hand side of the car, and on the left-hand side, off the front end of the car, and off the rear end, and several other variant circumstances, must there be an issue on each? It seems there is but one issuable fact-the injury, by the negligence of the defendant, at the time and place-and the difference in statement of the attendant circumstances is merely evidential matter. I think there was no error committed by the judge below.