STATE v. YODER. public road after being legally warned by P., supervisor, against the peace and dignity of the State,' is insufficient." In State v. Pool, 106 N. C., 698, in which the warrant was held to be fatally defective, various defects are pointed out, among others, the failure to negative the payment of one dollar in lieu of personal service. In State v. Neal, 109 N. C., 859, it was directly held that a warrant against one for refusing to work on the public road was fatally defective, if it failed to negative the payment of one dollar by the defendant in discharge of his liability. The Acts of 1887 (Ch. 73) and of 1889 (Ch. 338) do not affect the case at bar. The principle above stated would be sufficient to determine this appeal. But there is one other question clearly presented in the record, as well as in the briefs of counsel, that I think it better also to discuss. The defendant requested the court substantially to charge that he could not be required to do double road duty by being assigned to two different roads at the same time. This point has been directly decided in State v. Hinton, 131 N. C., 770, where the court says: "We do not think that the law intends to impose upon any one the double burden of working the roads in different districts at the same time." The State contends that this exemption from double duty applies only to roads already laid out, and that "the law imposes this obligation upon him (working on a new road) in common with other residents of the county, in addition to his liability to render service in keeping in repair roads already established." We do not see the distinction. Compulsory working on the roads is in the nature of taxation and should be uniform as far as local conditions will permit. I think that the defendant should have been permitted to show where and when he had worked on the public roads during the current year, in order to get full credit for the time already given to public duty. CONNOR, J., Concurs in the dissenting opinion. STATE v. WILCOX. STATE v. WILCOX. (Filed June 10, 1903.) 1. EXPERTS-Findings of Court-Appeal. The finding of a trial judge that a witness is an expert is final if there is any evidence to sustain the finding. 2. EXPERT EVIDENCE-Opinion Evidence-Physicians and Surgeons— Witnesses-Wounds. A physician may testify as an expert as to the kind of weapon that would produce a wound examined by him. 3. EXPERT EVIDENCE-Opinion Evidence-Physicians and Surgeons— Wounds. A physician may testify as an expert whether the absence of water from the stomach or lungs of a person, taken from water, indicated that such person was killed otherwise than by drowning. 4. EVIDENCE-Drawings-Maps. A person may use a map or drawing to demonstrate the relative positions of places involved in the evidence given by him. 5. EVIDENCE-Flight. Evidence that a prisoner did not escape jail, he having opportunity to do so, is not competent. 6. INSTRUCTIONS- Circumstantial Evidence - Reasonable Doubl The Code, Sec. 413. The trial court is not required to give instructions in the language of the prayers, here relative to circumstantial evidence and reasonable doubt; provided the instructions given are correct and cover the various phases of the testimony. 7. EVIDENCE-Sufficiency of Evidence--Questions for Jury-Homicide. There is sufficient evidence in this case to go to the jury connecting the defendant with the death of the deceased. INDICTMENT against James Wilcox, heard by Judge W. B. Councill and a jury, at March Term, 1903, of the Superior Court of PERQUIMANS County. From a verdict of guilty of murder in the second degree and judgment thereon, the defendant appealed. STATE v. WILCOX. Robert D. Gilmer, Attorney-General, for the State. CONNOR, J. This was an indictment against the defendant for the murder of Nellie Cropsey. The State introduced testimony tending to show that W. H. Cropsey, the father of the deceased, had been living in Elizabeth City since April, 1898; that at the time of the disappearance of deceased and for two years prior thereto his residence was within a short distance of the Pasquotank River. That deceased was at the time of her death nineteen years old; that the defendant met her in June, 1898, and began paying her attention, he being a young unmarried man; that his attentions were marked by frequent visits, as often as three times a week; that he gave her a number of presents, carried her to ride and sailing and to places of amusement. "He gave her a silver dish at one Christmas, a pin at the next, and on her birthday in July a diamond ring. He also gave her small pictures of himself and a parasol." In September, 1901, defendant and deceased had a "kind of falling out." She was heard to say to him about the middle of September, "If you are going to act like this the rest of the season, you can stay at home." About the first of October, 1901, Miss Carrie Cropsey a cousin of deceased, came from Brooklyn to make a visit to the family. About this time there was a series of religious meetings in Elizabeth City. Defendant frequently went with deceased and at other times went for and took her home. She joined the church October 13th. At the time of the Fair, October 22nd, defendant and deceased were friendly. He gave her tickets for herself, sister and cousin. They remained friendly until November 7th; prior to that day he visited her every night, sometimes in the afternoon. On the night of November 7th he was at the home of the deceased. Her sister and cousin were in the parlor with them. When he left, she said "Pull," which meant hurry. Vol. 132-71 She STATE v. WILCOX. went to the door with him and came back immediately. He did not take her remark in fun. He visited the house after that. Deceased never spoke to him after that night, nor did he speak to her. She never went to the door with him after that night. She was seen walking with her cousin and defendant once, her cousin being between them. Deceased was to make a visit to New York, intending to leave on Saturday, November 23rd. This was known to the defendant. On Tuesday afternoon before her disappearance her cousin came home and said she was going to the skating rink with the defendant that night. When he came and rang the bell, deceased declined to let him in. The cousin, Carrie, let him in. When the defendant came in and took a seat, he said to deceased: "I guess your corn is getting better." She turned to her sister, Miss Ollie Cropsey, laughed and said: "A little," in a very low voice. Deceased and her sister were dancing just before defendant came in. Defendant turned to Miss Carrie and said: "I expect it is time you were getting your hat." She went up stairs, leaving Ollie and deceased in the parlor. No words were passed between defendant and deceased. Ollie talked with him. When the defendant and Carrie returned from the rink deceased was writing a letter. They brought some fruit with them, which they put in another room. Defendant did not speak to deceased. After sitting some time deceased said: "I certainly would enjoy a good apple to-night." Carrie turned to defendant and said: "How about the fruit?" He said, "It is yours." Carrie handed the fruit. Deceased said: "No, thanks.” She wouldn't have any apple. Defendant staid a little while, took his hat and left. When he was gone, deceased said: "This is a good joke on Jim." She took an apple and commenced eating it. Defendant left about half past ten or eleven o'clock. On Wednesday afternoon, November 20th, 1901, Carrie and one of the sisters of the deceased went to town and STATE v. WILCOX. came back accompanied by defendant about half past five. Defendant indulged in some pleasantry with Ollie. He left in about half an hour. No words passed between him and deceased. He returned about eight or half past. Carrie let him in. Roy Crawford was at the Cropsey house, visiting Ollie. He was not on good terms with the defendant. Deceased was sitting at table, sewing. She continued sewing until 9:30 o'clock, when she put her sewing up and got some musical instruments. They had some music. Defendant did not speak to her; "just sat there gazing at nothing;" had hardly spoken to anv one. He finally said Miss Burnett was going to be married. The members of the family began to leave the parlor to retire, until deceased, defendant, Ollie and Crawford were the only ones left. Defendant asked if there was any water in the pump. Ollie got up to get a glass. He said: "I don't want your glass, I might poison it." He took his watch out six or seven times. At 11 o'clock he looked "Your clock is just like "Your clock is just like my watch." They at it and said: all stood up. Roy stood by deceased and took hold of her chin, saving: "You are looking mighty sweet tonight." Ollie said: "As if she don't always look so." Defendant rolled up a cigarette and took his hat, saying: "Mamma said I must be in at 11 o'clock tonight." Ollie said: "Jim, you are getting good." He made some slight remark, took his hat from the rocking chair and started out. When he got in the hall, the door was partly open. He walked out and said: "Nell, can I see you out here a minute?" She looked at her sister, said nothing and went into the hall with the defendant. She was never seen alive again by her family. This was the first time she had gone to the door with the defendant since November 7th. He had been there every other night. He had taken Carrie and a sister of deceased sailing. Deceased left the door open. Ollie closed it. Roy Crawford remained in the parlor with Ollie some time and then went |