eral public had equal facilities of putting it there with the defendant. It is true they did not all have equal facilities for stealing it, but, while that fact might be a circumstance to go to the jury, it is not corroborated by the further fact of the money being found in a public lot two days after the defendant's imprisonment. Circumstantial evidence may be of two kinds, consisting either of a number of consecutive links, each depending upon the other, or a number of independent circumstances all pointing in the same direction. In the former case it is said that each link must be complete in itself, and that the resulting chain cannot be stronger than its weakest link. In the latter case the individual circumstances are compared to the strands in a rope, where no one of them may be sufficient in itself, but all together may be strong enough to prove the guilt of the defendant beyond a reasonable doubt. But it necessarily follows that in either case every individual circumstance must in itself at least tend to prove the defendant's guilt before it can be admitted as evidence. No possible accumulation of irrelevant facts could ever satisfy the minds of the jury beyond a reasonable doubt. His honor properly charged that, "in order to justify the inference of guilt from circumstantial evi dence, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt." In furtherance of this instruction, and as its natural corollary, he should have instructed the jury under the facts of this case that the mere finding of the money in the public lot did not tend to prove the guilt of the defendant, and therefore should not be considered by them. For his failure to do so at the prayer of the defendant, a new trial must be ordered. New trial. SMITH v. RICHARDS et al. (Supreme Court of North Carolina. Nov. 26, 1901.) JUDGMENTS-JOINT DEBTORS-PAYMENT BY PART-SUIT FOR BALANCE. 1. Where plaintiff, having a joint judgment against six defendants, accepts payment from two of one-sixth each, giving each a receipt "to release him in full of" such judgment, and thereafter sues all the defendants to collect the balance unpaid, he cannot recover against the two who have paid, nor jointly against the others, but may have judgment against each of those who had not paid, separately, for onesixth of the original judgment. 2. Where one of six judgment debtors pays one-sixth of the judgment, taking a receipt that it is to release him in full of such judgment, such payment is not in compromise of the whole or any part of the debt, and not affected by Code, § 574, providing that a payment of less than the amount due, made on an agreement to compromise for the amount of such payment, should discharge the whole debt. 3. Under the constitution of 1868 and the Code, the rights of the parties to an action may be administered, whether legal or equitable in their nature, and the rights of defendants, as between themselves, may be adjusted in an action against them. Appeal from superior court, Gaston county; Allen, Judge. Action by John B. Smith against John Richards and others. From a judgment for defendants, plaintiff appeals. Reversed, and judgment for plaintiff. O. F. Mason and J. N. Holding, for appellant. Jones & Tillett, for appellees. FURCHES, C. J. This is an action against several defendants upon a former judgment for seven hundred and odd dollars, being the amount of costs in an action against the plaintiff, in which these defendants (plaintiffs in that action) had failed, and judgment was entered against them and in favor of the plaintiff in this action. Since the rendition of said judgment two of the defendants have paid the plaintiff their aliquot parts, and the plaintiff gave them separate receipts therefor, as follows: "Received of W. S. Richards ninety-two 94/100 dollars for one-sixth the costs in a judgment rendered in the case of J. B. Richards et al. v. J. B. Smith, at spring term of the superior court, March, 1889. This is to release W. S. Richards in full of the costs of suit above mentioned. This 28th day of December, 1896. [Signed] John B. Smith." The other receipt to Fannie Rutledge and husband, J. L. Rutledge, is the same, in substance, as the above. All the parties against whom judgment was rendered in the former action are made defendants in this action, and the defendants W. S. Richards and Fannie Rutledge and her husband, J. L. Rutledge, did not plead, but the other defendants answered, and set up the above-mentioned receipt as a release and discharge of them from any liability on said judgment. This presents the only question in the case. It seems that originally contribution between co-obligors was held to rest upon a moral obligation only, and courts of equity alone could enforce it. Moore v. Isley, 22 N. C. 372. But, at a later date, courts of law in many jurisdictions considered it a joint obligation in the nature of a contract, and actions at law were sustained when they were to recover only an aliquot part. Pars. Cont. (3d Ed.) 34, 35. But, where more than this was demanded on account of insolvency or for other cause, it still remained a matter for the courts of equity, as courts of law could not adjust equities between the parties. But it seems probable that the courts of law in this state still declined to take jurisdiction of matters of contribution, as we find that in 1807 the legislature passed an act authorizing cosureties to bring actions on the case in assumpsit for contribution. Sherrod v. Woodard, 15 N. C. 360, 25 Am. Dec. 714; section 2094, Code. But this act only applied to co sureties, and, it would seem, left the law as to coprincipals as before its passage; and, whether this remained so or not under the divided jurisdiction it is not so now under the constitution of 1868 and the Code. Russell v. Adderton, 64 N. C. 417; Dudley v. Bland, 83 N. C. 220; Craven v. Freeman, 82 N. C. 361. The rights of the parties may now be administered, whether legal or equitable in their nature. Russell v. Adderton and Dudley v. Bland, supra. And the rights of defendants, as between themselves, may be adjusted and settled in an action against them. Carr v. Smith (at this term) 39 S. E. 831. This is not an action for contribution. That right does not arise at law or in equity until the co-obligor has paid the money. And none has been paid in this case by either of the defendants who are contesting the plaintiff's right to recover. But the doctrine of contribution is involved, and it was necessary to consider it in determining the rights of the parties. The defendants contend that the payments of W. S. Richards and Rutledge and wife, and their discharge, was a discharge of them. It was admitted by defendant that the "receipt" was not a release, as it was not under seal. But it was ingeniously argued that the reason that a partial payment and receipt, stating that it was in full, were not a discharge, was because there was no consideration to support it beyond the amount paid, and that it was nudum pactum for all above the amount paid, whereas a similar receipt, under seal, would be a discharge, because the seal imported a consideration; and it was argued that the act of 1874-75 (section 574, Code) supplied the consideration, and a receipt now for a part was as effective as if it was under seal. This is so in cases where the statute applies, but it seems to have no application to this case. The receipt does not seem to have been intended as a compromise of the whole nor of any part of the debt. It was a payment in full of the defendants' aliquot parts of the judgment, and a discharge of the parties paying it from any further liability. And, as these defendants are discharged form paying anything more, it is a discharge of the other four defendants from any liability beyond their aliquot parts,-one-sixth each; for, as plaintiff could recover nothing more out of W. S. Richards and Rutledge and wife, these four defendants could recover nothing more out of them, as their rights depend upon the rights of the plaintiff, Smith, and their right of subrogation. ment in solido against all the defendants, nor is he entitled to such a judgment for the unpaid balance against the four defendants who have paid him nothing on his former judgment, but that he is entitled to a judgment or decree against them separately for their aliquot parts; that is, against John Richards for one-sixth, George Richards for one-sixth, Sarah Summerrow and her husband, H. M. Summerrow, for onesixth, and Elizabeth Jenkins and husband for one-sixth. No right of contribution exists between them upon said judgment, nor is either of these defendants liable to the plaintiff for anything more than his judgment for the said one-sixth of the original debt. There is error, and judgment should be entered as above indicated. Error. STATE v. GARNER. (Supreme Court of North Carolina. Nov. 26, 1901.) ASSAULT TO RAPE-INSTRUCTIONS-EVIDENCE -SUFFICIENCY-QUESTIONS FOR JURY. 1. Where, on a prosecution for assault with intent to commit rape, it appeared that prosecutrix, becoming frightened at accused, who was just ahead of her, turned and ran, and was pursued by him for some distance, when he stopped on nearing a house, it was proper to instruct that, if accused acted so as to put prosecutrix in reasonable fear of him, and caused her to turn from her path, it was an assault, and, if he assaulted her, and intended to catch her, and have intercourse with her by force, against her will, and intended to overcome at all hazards any resistance she might offer, they should find accused guilty. 2. It was proper to instruct that, if an assault was committed by accused, as so defined, and the jury had a reasonable doubt of a felonious purpose to effect an actual sexual intercourse by force against prosecutrix's will, they should find him guilty of simple assault. 3. On a prosecution for assault with intent to rape it is not prejudicial to accused for the court in defining a simple assault to state the punishment. 4. Prosecutrix, with her 8 year old brother, was walking along a railroad, when she observed accused, a colored man, about 20, some distance ahead, going in the same direction. Accused slowed his gait, as did prosecutrix. Accused kept stopping, and looking back, and folding his arms in front of him and opening them, and shook his hat at her. Prosecutrix changed to a dirt road, and accused did likewise, and she, becoming frightened, turned and ran, accused pursuing her until he stopped on coming in sight of a house to which prosecutrix was fleeing. There was a school house, and school in session, about 200 yards from where prosecutrix began to run, and two dwellings in sight, where people lived. Held sufficient. on indictment for assault with intent to rape, to require submission to the jury. Furches, C. J., and Douglas, J., dissenting. Appeal from superior court, Gaston county; Hoke, Judge. We do not feel called upon to enter into a further discussion of the principles governing this case, as they have been so fully discussed in Russell v. Adderton and Craven v. Freeman, supra, and especially in Dudley v. Bland, supra. It therefore follows that the plaintiff, Smith, is not entitled to judg-peals. Walter Garner was convicted of an assault with intent to commit rape, and he apAffirmed. Defendant was tried upon a bill of indictment for an assault with intent to commit rape upon Beulah White. A concise statement of the evidence shows that Beulah White, a white girl, about 14 years old, was walking along the railroad track near Gastonia, accompanied by her little brother, about 8 years old. She saw defendant, a colored man, about 19 or 20 years old, of ordinary and usual size and vigor of a man of that age, walking along the track about 200 yards ahead of her, going in the same direction she was. While so walking, defendant slowed his gait, and she slowed hers. He would stop and look back, and she would stop; and he kept on stopping and looking, and folding his arms in front of him and opening them, and once shook his hat at her while looking back. She would change from the railroad track to the dirt road which ran parallel with it, and he would likewise change and keep in front of her. She continued to change and he continued to change until she had gotten within 30 feet of him, when he turned back, and she became so frightened she turned and ran up a side way leading towards her cousin's house, about 200 yards away, carrying her little brother by the hand. He ran after her about 60 feet, and had gotten within about 15 feet of her, when he stopped. The house at this place where he stopped could not be seen on account of the corn standing in the field. Defendant did not speak, nor did she. When she got to the porch of the house, she looked back, and saw defendant going down the railroad. The house could not be seen from the place where she began to run because of the thick corn standing in the field. There was a school house (and school was being taught therein) about 200 or 300 yards from where she began to run, and in sight, and two dwelling houses in sight, where people lived. This occurred about 3 o'clock in the afternoon. There was also evidence of defendant's flight when approached by the officers that afternoon. Defendant introduced no testimony, and demurred to the evidence of the state upon the ground that it was not sufficient to be submitted to the jury to convict. Demurrer was overruled, and defendant excepted. To the following parts of his honor's charge to the jury the defendant excepted: “(1) That if the jury are satisfied beyond a reasonable doubt that defendant acted in such a manner as to put Beulah White in reasona ble fear of personal violence from him, and caused her to turn from her path, and escape and avoid him, this would be an assault on his part; and if the jury are satisfied beyond a reasonable doubt that he assaulted her, and that he intended to catch her, and then have sexual intercourse with her by force and violence, and against her will, that he intended to overcome at all hazards any resistance she might offer, they would render a verdict of guilty as charged in the bill of indictment. (2) That if the jury are satisfied beyond a reasonable doubt that an assault was committed by defendant as defined and stated above, and have a reasonable doubt of the felonious purpose to effect an actual sexual intercourse by force and violence and against her will, as stated, they would render a verdict of not guilty of the felony, but guilty of simple assault. (3) The jury, after being out some time, returned into court, and requested the court to restate the law on the different phases of the testimony; and the court, in defining the case of simple assault, added (inadvertently) 'in which case the punishment could be a fine of fifty dollars or thirty days on the roads.'" Verdict of "Guilty as charged in the indictment" was rendered, and motion for new trial overruled, sentence imposed, and defendant appealed. A. G. Mangum, for appellant. Brown Shepherd represented the Attorney General for the State. COOK, J. (after stating the case). The first two exceptions to the charge are without merit. As to the third, we do not see that any prejudice was done the defendant by his honor's charge as to the punishment. In passing upon the issues in a criminal action, the jury know that some punishment follows a verdict of guilty. They are entitled to be informed upon the law creating the offense charged, and, as the punishment prescribed is a part thereof, we see no reason why the court should not accurately and correctly inform them as to the same, rather than leave them to rely upon their own information. The difficult question involved in this case is whether the evidence and circumstances set out amount to evidence fit to go to the jury, and upon which they could reasonably find the defendant guilty of committing the assault with the intent charged. The facts are very similar to those stated in State v. Neely, 74 N. C. 425, 21 Am. Rep. 496, and similar to those in State v. Massey, 86 N. C. 658, 41 Am. Rep. 478, but contain evidence of intent and purpose not apparent in those cases. In applying the rule that, "when the act of a person may reasonably be attributed to two or more motives, the one criminal and the other not, the humanity of our law will ascribe it to that which is not criminal," we are not able to find evidence upon which we can attribute his motive to any other than to ravish the prosecuting witness. Neither does the testimony, nor any of the circumstances or surroundings, suggest any other motive. Theft (or robbery) is negatived by the absence of any visible or known property to steal. No grudge or grievance or offense appears upon which to base a suspicion of malice or anger inducive to murder or personal injury. No acquaintance or social relation appears to have existed which would suggest the idea of romp, joke, or play. Nothing suggests that he was in distress, and needed aid or information which could have been obtainable from the prosecuting witness. His conduct while walking in front of the girl indicates a flirtation not warranted by the social or racial relations of the parties. The signs made to her by folding his arms in front of him and opening themsuggestive of hugging her-indicated amorousness, and shaking his hat at her might be considered as soliciting a kindly response. Failing in his strategy to enlist her favorable attention, which became evident to him when she turned and ran as soon as he turned back, carrying by the hand her little brother, he pursued her, and only stopped when nearing the sight of the house to which she was fleeing. For what purpose could he have chased her? Was not such conduct by him evidence fit to go to the jury in determining the intent with which he pursued her? We think it was, and sustain his honor in so ruling. There is no evidence to establish any motive other than to do an unlawful act. None was expressed. He did not speak, nor did she. Every person is presumed to have intended the natural consequences of his acts, and it must follow that he is presumed to have made the attempt to commit it, if the act done would be such as would apparently result, in the natural course of events, in the commission of the crime itself, if not prevented. The intent was locked up in his own breast, and can only be interpreted by his acts and conduct under the circumstances and surroundings. An assault is an intentional attempt by violence to do injury to another. But how is the intention to be ascertained otherwise than by the conduct? Intent is likewise an essential element in larceny, burglary, etc., which can only be ascertained by the conduct and acts and circumstances accompanying the transaction. But it is argued that the commission of the offense charged is negatived by the location, in that there was a school house 200 or 300 yards away, and a dwelling house in sight of the place where she first saw him, and that she was accompanied by her brother, eight years old. But that is only evidence in his behalf, to be considered by the jury in inquiring into his intent and purpose; the contention being that it would be unreasonable for a man to undertake to commit a capital felony so near to a school house where a school was in session, and so near dwelling houses where people lived, when he would probably be caught, and the chances of escape so limited. But the rules of reason are not employed by the criminal. If they were, crime would rarely be committed. Every element of reason is wanting in the commission of the crime which he is charged with having attempted. Even the instinct of brutes, when allowed to roam together in their natural state, forbids such an act, leaving this, the most fiendish of all offenses against nature, within the possibili. ties of the humankind. There is no error. DOUGLAS, J. (dissenting). I cannot concur in the opinion of the court for two reasons. While I am not prepared to say that it is reversible error for the judge to tell the jury what is the punishment of the crime, I cannot agree with the court that the jury are entitled to be informed of the punishment. The jury have nothing to do with the quantum of punishment. Their only province is to determine the guilt or innocence of the accused, leaving the question of punishment to be determined by the court within the limitations of law. In fact, I think the better practice is not to inform the jury of the possible punishment; and this seems to have been the idea of the judge below, who says that he did so "inadvertently." But, to come to the vital point, I do not think that there was sufficient evidence to go to the jury. There is a difference in the measure of evidence in civil and criminal cases, arising equally from reason and necessity. The court cites the cases of State v. Neely, 74 N. C. 425, 21 Am. Rep. 496, and State v. Massey, 86 N. C. 658, 41 Am. Rep. 478. The former, decided by a divided court, is distinctly overruled in the latter case by a unanimous court. I cannot better express my own views than by citing from the opinion in Massey's Case, where this court says, on page 660, 86 N. C., and page 478, 41 Am. Rep.: "In order to convict a defendant on the charge of an assault with intent to commit rape, the evidence should show not only an assault, but that the defendant intended to gratify his passion on the person of the woman; and that he intended to do so at all events, notwithstanding any resistance on her párt [citing authorities]. When the act of a person may reasonably be attributed to two or more motives, the one criminal and the other not, the humanity of our law will ascribe it to that which is not criminal. 'It is neither charity, nor common sense, nor law to infer the worst intent which the facts will admit of. The reverse is the rule of justice and law. If the facts will reasonably admit the inference of an intent, which, though immoral, is not criminal, we are bound to infer that intent' [citing State v. Neely, dissenting opinion]. Every man is presumed to be innocent until the contrary is proved, and it is a well-established rule in criminal cases that, if there is any reasonable hypothesis upon which the circumstances are consistent with the innocence of the party accused, the court should instruct the jury to acquit, for the reason the proof fails to sustain the charge." "There is no evidence in this case, in our opinion, from which a jury might reasonably come to the conclusion that the defendant intended to have carnal knowledge of the person of the prosecutrix at all hazards and against her will. At most the circum- stances only raised a suspicion of his pur- pose, and therefore should not have been left to the consideration of the jury." I have cit- ed thus fully from Massey's Case because it is the leading case upon the subject, being a carefully considered opinion by a unani- mous court of acknowledged learning and sagacity. In the case before us there is no evidence whatever that the defendant ever touched the girl, that he ever spoke to her, or that he made any gesture that was in it- self either lewd or obscene. It appears that he might have caught her if he had wished to, and, if he did not wish to, he was not guilty. In our abhorrence of the crime with which he is charged, we must not lose sight of the fact that to convict an innocent man of such a crime would be in itself a terrible wrong. Such crimes should be promptly and severely punished, but the accused should be fairly tried. I am in favor of punishing criminals, but not of making criminals by as- sumption of fact or construction of law. That the defendant is guilty of a simple as- sault, I do not doubt; but he does not appear to have been guilty of the crime of which he was convicted. What was his motive I do not know. It may have been mere imper- tinence, or a malicious desire to frighten a child, which we see too often in older per- sons. Let it be what it may, I cannot dis- tinguish the underlying principles in this case from those in Massey's Case, and hence I must dissent from the opinion of the court. I may be wrong, but I can never hope to have greater learning than Smith, or a more FURCHES, C. J. I concur in the dissent- STATE v. PETERSON. FORGERY-INDICTMENT-ALLEGATIONS - LOST INSTRUMENT-EVIDENCE OF CONTENTS-IN- STRUCTION — DRUNKENNESS - EXCUSE FOR CRIME-FORGED NOTE-ABSENCE OF REV- 1. Where, on a prosecution for forgery, the instrument claimed to have been forged is lost, only its substance need be charged in the in- dictment, and it is not necessary to allege the 2. On a prosecution for the forgery of a note, the same being shown to be lost, testimony as to the substance of the note was compe- 3. Where it is shown that defendant was in possession of the forged instrument, attempt- ing to utter it, it was proper to submit the case under an instruction not to convict un- less satisfied that the defendant attempted to utter it for personal gain or a fraudulent pur- 4. It was proper to refuse an instruction that drunkenness of defendant when he at- tempted to utter the forged instrument might 5. The fact that the note alleged to have been forged did not bear a revenue stamp would not necessitate a verdict of not guilty. 6. It was proper to instruct that, where one has been found in possession of a forged in- strument, and is endeavoring to obtain money or advances on it, it raises a presumption that forgery, and that, nothing else appearing, he would be presumed to be guilty. Appeal from superior court, Catawba coun- The following is the indictment: jurors," etc., "present that L. R. Peterson," etc., "at and in said county, willfully, felo- niously, did falsely make, forge, and counter- feit, and did cause and procure to be falsely made, forged, and counterfeited, and did wit- tingly act and assist in the false making, for- ging, and counterfeiting, a certain instrument in writing, to wit, a note, which said false, forged, and counterfeited note is in substance as follows, that is to say: 'On the 1st of January, 1901, we promise to pay R. H. Mar- tin one hundred and twelve dollars and fifty cents. Value received. Sept. 13, 1900. B. M. Morrow. [Seal.] W. H. Morrow. [Seal.],'-with intention to defraud the said B. M. and W. H. Morrow; against the form of the statute," etc. "(2) And the jurors aforesaid," etc., "do further present that said L. R. Peterson did afterwards, to wit, on the day and year aforesaid, at and in the coun- ty aforesaid, willfully and feloniously utter and publish as true a certain other false, forged, and counterfeited instrument in writ- false, forged, and counterfeited note as afore- said, then and there well knowing the same to be false, forged, and counterfeited; against the form of the statute," etc. Defendant moved to quash upon the ground that the bill purported to set out the alleged forged paper in substance only. Motion denied, and de- Testimony of state: A. H. Crowell testi- fied: "Am cashier of Newton Bank. De- fendant came to the bank, and wanted me to cash note for $112.50, signed by B. M. Morrow and W. H. Morrow. Told defendant I could not cash note, for the reason that it was not indorsed by the payee, Martin. De- fendant said that Martin was on the jockey ground; that he would hunt him up, and have him indorse the note. Defendant then |