STATE v. SWINK. "the proclamation by the Governor shall have the effect to determine the result of said election." All authorities hold that the courts take judicial notice of the proclamations of the executive. 16 Cyc., 904; Wigmore, sec. 2577. 2. The position that the punishment is limited to a fine of $50 or imprisonment for thirty days, as provided in the charter of the city of Asheville, is untenable. The city charter has reference only to a sale of liquor without license. The defendant is not indicted for such a sale, but simply for the sale of liquor contrary to the State prohibition law. To limit the punishment for a violation of the law to a fine of $50 or imprisonment for thirty days would be in direct conflict with the provisions of the prohibition act, and the act declares that all laws in conflict with it are expressly repealed. 3. It appears from the record that, during the progress of the trial, in the presence of the jury, and while Forest Phillips was on the stand as a witness for defendant, "the demeanor of the said Forest Phillips was bad and almost contemptuous, and it appearing to the court that some proceedings ought to be taken against him on account of his testimony, as well as his manner and obstinacy, the court, at the conclusion of the testimony, directed the sheriff to take charge of him, and also directed the solicitor to take such steps as were necessary." Defendant excepted. In this we think the able and just judge who presided inadvertently committed an error, which fairly entitles the defendant to another trial. The right of a nisi prius judge to order a witness or anyone else into immediate custody for a contempt committed in the presence of the court in session is unquestioned. But the committing of a witness, in either a criminal or a civil action, into immediate custody for perjury in the presence of the jury is almost universally held to be an invasion of the rights of the party offering the witness, and an intimation of opinion upon the part of the judge, prohibited by the statute. State v. Owenby, 146 N. C., 677; State v. Dick, 60 N. C., 440; 21 Enc. Pldg. & Prac., 998 et seq.; Burke v. State, 66 Ga., 157; Taylor v. State, 42 S. W., 384; Golden v. State, 75 Miss., 130; Brandon v. State, 75 Miss., 904; Kitner v. State, 45 Ind., 177; Davidson v. Herring, 48 N. Y. Sup., and 28 N. Y. Appel. Div., 402. The right to punish summarily a contempt committed in the immediate presence of the court is necessary to maintain its dignity, but the necessity does not exist always for immediate commitment for perjury. If, in the judge's opinion, there is such necessity, injury to the STATE v. GREEN. party offering the witness can be avoided by sending the jurors out and keeping the action of the court from them. New trial. STATE v. GEORGE GREEN. (Filed 23 December, 1909.) Indictment-Definiteness-Failure to Work Road-Proof-Motion in Arrest. In this case the motion in arrest of judgment should have been allowed, the warrant being fatally defective in failing to allege that defendant was assigned to work the road, for the failure of which he was tried and convicted, and the prosecution failing to negative the payment of one dollar allowed by law in lieu of service. State v. Lunsford, 150 N. C., 862; State v. Neal, 109 N. C., 858, cited and approved. APPEAL from Cooke, J., January Term, 1909, of FRANKLIN. Criminal prosecution for failure to work the public roads, heard on appeal from a justice's court. The facts are stated in the opinion. Attorney-General and George L. Jones for the State. HOKE, J. We have recently held, in State v. Lunsford, 150 N. C., 862, that in every criminal prosecution, whether by indictment or warrant, or warrant taken in connection with the affidavit, the charge must be so stated as to show that a crime has been committed, and same must be described with sufficient certainty to inform the defendant of the nature of the accusation against him, and to enable the court to proceed to judgment in case of conviction. In the present case, and under several decisions of the Court, the warrant is fatally defective in failing to allege that defendant was assigned to work the road described and failing to negative the payment of the one dollar allowed by the law in lieu of service. State v. Neal, 109 N. C., 859; State v. Baker, 106 N. C., 758; State v. Pool, 106 N. C., 698; State v. Smith, 98 N. C., 747. The motion of defendant, therefore, must be allowed and judgment against him arrested. Let this be certified. Error. STATE v. MCCLOUD. STATE v. RICHARD MCCLOUD. (Filed 23 December, 1909.) False Pretense Special Verdict Intent - Verdict Defective — Appeal and Error-New Trial. Defendant being indicted under Revisal, 3432, the jury found, by special verdict, that a certain mercantile company issued aluminum checks, redeemable in merchandise, to the laborers of a certain lumber company whose names were furnished it by the latter company, and that defendant obtained one of these checks upon his false statement that he was one B., a laborer whose name had thus been furnished, and that he obtained no goods on the check. Held, no judgment on the verdict can be rendered, and a new trial ordered; the court is confined to the facts found, and there was a failure of the jury to find defendant's intent to defraud, and also to find the facts of the agreement or arrangements existing between the mercantile and lumber companies respecting the issuance by the former of these checks. APPEAL from Peebles, J., May Term, 1909, of BEAUFORT. This was an indictment under section 3432, Revisal. The jury returned the following special verdict: "The ClarkeSmith Company was a corporation, engaged in mercantile business at Belhaven. It issued aluminum checks to employees of the Roper Lumber Company, representing goods, and good for amount in goods named in check. Henry Boyd was a laborer for said Roper Lumber Company, and his name had been furnished by said Roper Lumber Company, as its laborer, to said ClarkeSmith Company. Defendant applied to said Clarke-Smith Company for a one-dollar check. The clerk asked the defendant his name. He told him it was Henry Boyd; thereupon the clerk furnished him a check good for one dollar and representing one dollar in goods. The clerk said he thought defendant's conduct suspicious. The next day the defendant came back and asked for another dollar check. Clerk refused, in consequence of the fact that Boyd had been in in the meantime. No goods were furnished on the check. Defendant's name was not Henry Boyd, and Boyd had not authorized him to call for his check. If, upon this finding, the court is of the opinion that defendant is guilty, the jury find him guilty. If the court is of the opinion that he is not guilty, we find him not guilty." Whereupon the court adjudged the defendant not guilty, and the solicitor appealed. Attorney-General and G. L. Jones for the State. MANNING, J., after stating the case: The special verdict found in this case is defective, and the facts found by the jury are not STATE v. FOWLER. sufficient to warrant any judgment thereon. In determining the guilt or innocence of a defendant upon a special verdict, the court is confined to the facts found, and is not at liberty to infer anything not directly found. State v. Custer, 65 N. C., 339; State v. Hanner, 143 N. C., 632, and cases cited. The special verdict does not find the intent with which the defendant made the statements. "The intent to cheat and defraud the prosecutor is an essential ingredient in the crime of false pretense. The verdict should have found that fact distinctly, the one way or the other; either that the defendant made the false representation with intent to cheat, or that he made the statement under an honest conviction of its truth." State v. Blue, 84 N. C., 807; State v. Oakley, 103 N. C., 408. In the absence of such definite finding, the uniform practice is to grant a new trial. State v. Bray, 89 N. C., 480; State v. Blue, supra; State v. Oakley, supra; State v. Hanner, supra. Nor is there a finding showing under what agreement or arrangement the Clarke-Smith Company issued its aluminum checks to the laborers of the Roper Lumber Company. The aluminum check was the promise to pay of the Clarke-Smith Company, payable or redeemable in goods, as we interpret the verdict. We are therefore of the opinion that the judgment should be reversed, the special verdict set aside and a new trial had. Error. New trial. STATE v. JOE FOWLER. (Filed 23 December, 1909.) 1. Murder-Manslaughter-Deadly Weapon-Unlawful KillingMalice-Presumption. When the killing with a deadly weapon is established or admitted, and the plea is self-defense, two presumptions arise: (1) that the killing was unlawful; and (2) that it was done with malice. 2. Murder-Manslaughter-Unlawful Killing-Malice. An unlawful killing is manslaughter, and when it is done with malice, it is at least murder in the second degree. 3. Same-Self-Defense-Presumption-Burden of Proof. When the killing with a deadly weapon is established or admitted, and the defendant's plea is self-defense, it is for him to rebut the presumption that it was unlawful or done with malice, and upon his rebutting only the presumption of malice, the presumption that it was unlawfully done yet stands, making him guilty of manslaughter. STATE v. FOWLER. 4. Same-Instructions-Without Prejudice-Harmless Error. When the killing with a deadly weapon is shown, and the plea is self-defense, it is not error to defendant's prejudice for the court to refuse to charge that there was no evidence to warrant a verdict of manslaughter, the jury having rejected defendant's evidence of self-defense and found him guilty of manslaughter, as otherwise it would have been their duty to convict of murder in the second degree. 5. Murder-Manslaughter-Instructions-Construed as a Whole Harmless Error. A charge to the jury is not solely to be interpreted by picking out therefrom certain expressions; and when, upon a trial for the unlawful killing of another, it is upon the defendant, under the plea of self-defense, to rebut the presumption that the killing was unlawful and with malice, and the charge is correct when construed as a whole, the expression, that if the jury were "left in doubt" as to whether defendant slew in self-defense they should return a verdict of manslaughter, is not of itself reversible error. WALKER, J., concurs in result. APPEAL from Justice, J., October Term, 1909, of POLK. Indictment for murder in second degree. The defendant was convicted of manslaughter, and from the judgment pronounced, appealed. Attorney-General and George L. Jones for the State. BROWN, J. This appeal presents two assignments of error. 1. Did the judge err in submitting to the jury the question of manslaughter? Under State v. Quick, 150 N. C., 820, such an error is without prejudice to the defendant, and he cannot complain. When, as in this case, the plea is self-defense and the killing with a deadly weapon is established or admitted, two presumptions arise-(1) that the killing was unlawful; (2) that it was done with malice. An unlawful killing is manslaughter, and when there is the added element of malice it is murder in the second degree. When the defendant takes up the laboring oar he must rebut both presumptions the presumption that the killing was unlawful and the presumption that it was done with malice. If he stops when he has rebutted the presumption of malice, the presumption that the killing was unlawful still stands, and, unless rebutted, the defendant is guilty of manslaughter. This is a fair deduction from the cases in this State. State v. Hagan, 131 N. C., 802; State v. Brittain, 89 N. C., 501, 502. At the request of defendant, the judge charged the jury very explicitly that if they should find from the evidence offered by |