STATE. HALL. homicides; else why have a costly administration of justice at all? It is certain that under our present procedure in capital cases, and the construction placed by the court on the act dividing murder into two degrees, that punishment in such cases is very far from certain. Men do not fear the law enough to refrain from gratifying their evil passions. These things should be plainly said, and, if the only relief is in legislation, law-abiding citizens should know it, that a sound public opinion may apply the remedy. STATE v. HALL. (Filed June 2, 1903.) 1. EVIDENCE-Homicide-Intent-Manslaughter. In an indictment for murder, evidence tending to show that the ac cused had no unlawful purpose in going to the place of the killing is competent, if their guilt is by the charge of the court made to depend in some measure upon their purpose in going. 2. EVIDENCE-Homicide-Intent-Murder. In an indictment for murder a conversation between two persons is competent to contradict one of the persons, he having testified to a different state of facts from those used in the conversation. 3. IMPEACHMENT OF WITNESSES— Witnesses— Evidence. A witness may be asked on cross-examination whether many things relative to the case are not slipping from his memory, for the purpose of showing that his memory is weakening. 4. ARGUMENT OF COUNSEL-Nolle Pros.-Discharge of Prisoner. The discharge of one of three defendants and the entry of a verdict of not guilty as to another are proper subjects of comment by counsel in the trial of the other defendant. 5. HOMICIDE-Manslaughter-Intent. Where a person is killed by the accidental discharge of a gun, in an attempt by another person to execute an unlawful purpose, the person making the attempt is guilty of manslaughter. STATE v. HALL. 6. EXCEPTIONS AND OBJECTIONS—Instructions—Appeal. A general objection to the entire charge, or any part thereof which contains several distinct propositions, will not be considered on appeal. INDICTMENT against John Hall, Pink Woods, Ed. Chavis, Pink Chavis, and Peck Locklear, heard by Judge C. M. Cooke and a jury, at February Term, 1903, of the Superior Court of ROBESON County. The defendants, with Peck Locklear, were indicted in the court below for the murder of Philip Barton. At the trial and after the evidence was concluded, the State consented to a verdict of not guilty as to Peck Locklear, the court having intimated that there was no evidence against him, and the other defendants were convicted of manslaughter. It appears from the case that on Christmas day, 1902, the defendants, John Hall, Pink Woods, and Peck Locklear went to the house of Elizabeth Barton, where Nep Barton, her son, lived. No one was there at the time but Kitty Barton and a small boy named Porter Barton. They left the house after a short stay, and the defendants, John Hall and Peck Locklear returned later in the day, John Hall having with him a gun, and found Rual Barton and Nep Barton at the house. They remained at the house a short while and then left, and late in the afternoon of the same day the defendants and Peck Locklear were again at the Barton place. While they were there Philip Barton was killed. There was some discrepancy in the evidence as to whether the defendant Pink Woods, was with Hall and Locklear when they went to the house the second time, but in the view we take of the case it is immaterial whether he was with them or not. The evidence is very conflicting as to the material facts of the case, and the exceptions of the defendants, we think, can be best understood by stating the contentions of the State and STATE v. HALL defendants, there having been evidence to support each of said contentions. The State insisted that upon the evidence the defendants, John Hall, Pink Woods and Peck Locklear, had gone to the Barton house twice before the homicide occurred, and that on the occasion of the second visit John Hall had an altercation with Rual and Nep Barton. That John Hall jumped into the door of the house with a gun in his hands and said to Rual Barton, "I hear you accuse me of selling your dog, and anybody who said so is a liar;" that during this visit Rual Barton snatched the gun from the defendant John Hall, and the said defendants left the premises, threatening at the time to get a crowd and come back and retake the gun by force. Shortly afterwards, but late in the afternoon, the defendants Hall and Woods, and Peck Locklear, accompanied by Ned Chavis and Enoch Chavis and one Utley Locklear, returned and made an assault upon Rual Barton, who was trying to drive the defendants away. In the fight which ensued the defendant Hall snatched the gun from Rual Barton, all of the defendants taking part in the fight, and, immediately upon Hall's gaining possession of the gun, he fired the same and shot the deceased Philip Barton, who was standing about five or six feet behind Nep Barton and Rual Barton, and who had not engaged in the fight. The defendants contended that on the said day John Hall and Pink Woods and Peck Locklear, being intimate with and on friendly terms with the Barton family, visited the home of the Bartons for the purpose of paying attention to two of the Barton girls who were grand-daughters of Elizabeth Barton, and who at the time, made their home with her; that just prior to their first visit the defendants Hall and Woods, and Peck Locklear, met Rhoda Barton near her home, and the defendant Hall made an engagement to meet her later in the day, after which they went on to the home of Eliza STATE . HALL beth Barton, and there saw Kitty Barton alone, when the defendant Woods made an engagement to meet her later in the day; that having been disappointed in seeing the girls in accordance with their engagements, the defendant Hall, and Peck Locklear, went to the home of Elizabeth Barton, on the occasion of the second visit, expecting to see the girls and find out the cause of the failure to keep the engagements, when they met Rual and Nep Barton, both of whom were drinking and boisterous. Nep Barton cursed the defendant Hall, and Rual Barton took from the defendant Hall his gun, and rather than have any difficulty the defendant Hall, and Peck Locklear, left; all this taking place prior to the visit during which the homicide occurred; that being joined by defendant Woods, who was waiting for them, they all went home; that at the home of their father, the defendants Hall and Woods met the two Chavis boys, who were their cousins, and after having eaten dinner were joined by them, and all started to the home of one John Archie Locklear. On the way, they were joined by Peck Locklear. In going to John Archie Locklear's they took the nearest road, which leads by the house of Elizabeth Barton, the road and her yard adjoining and there being no fence between them. Just before getting to the Barton's they were met and joined by Utley Locklear, who went along with them on the way to John Archie Locklear's, and just as they approached the house of Elizabeth Barton, Rual Barton and Nep Barton, Rual armed with a gun and Nep with a knife, rushed out to meet the defendants-Philip Barton, the deceased following them. Rual Barton, when the defendants were only a step or so from him, raised the gun and began threatening to shoot. Nep rushed at the defendants, and Rual, telling him to get out of the way, started to shoot, when the defendants advanced upon him to prevent his shooting and to protect themselves. Rual Barton tried to strike with the gun, and as STATE v. HALL. he struck the defendant Chavis the gun fired, killing the deceased, who was at the time about five or six steps behind him. While Rual was scuffling and trying to get the gun in position to shoot, Nep Barton was using his knife, and one of the defendants (Chavis) exhibited at the trial long gashes across his back, which he claimed were made by Nep Barton during the scuffle. Nep, who was a witness for the State, denied having the knife, and all of the Bartons testified that Nep did not cut the defendant. The defendants further contended that they did not succeed in getting the gun away from Rual Barton until after it had been fired and was broken while Rual was striking at the defendants with it. The gun, according to all the testimony, had but one barrel. The State insisted that the defendants were guilty of murder in the first degree, and the defendants, on the other hand, contended that no one of them discharged the gun, but that it was discharged in the hands of Rual Barton while he was assaulting the defendants; that the Bartons were the aggressors and the defendants acted strictly in self-defense. At the trial the defendants proposed to ask Peck Locklear, one of the defendants, who was introduced as a witness, what was the purpose of the defendants in going to the Barton house, which was excluded on objection by the State. They also proposed to ask a defendant's witness, Oakley McMillan, the following question: "What was said between Kitty and Nep Barton as to why the boys were there?" which was also excluded by the court. The defendants proposed to ask Rual Barton, a witness for the State, the following question: “A good many things are slipping from your memory to-day in reference to this transaction, are they not?" This was stated at the time the question was asked to be for the purpose of testing the witness' recollection, and ascertaining whether or not he claimed to recollect all about what took place at the time the homicide occurred, and as to what took place at the |