RESTITUTION OF PROPERTY-RESTORATION, CITIZENSHIP.

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striking a blow, and evidence that the prosecutor persisted in the fight while the policeman had hold of him is evidence of resistance to the officer. Pugh, 101-737; 7 S. E. 757.

One who obstructs a deputy sheriff in the collection of back taxes, after the term of office of the sheriff has expired, is guilty of resisting an officer, the sheriff having a right to collect arrears of taxes. Alston, 127-519; 37 S. E. 137.

RESTITUTION OF STOLEN PROPERTY.

Sec. 1003 (3153). Stolen property returned to owner.

Upon the conviction of any felon for robbing or stealing any money, goods, chattels, or other estate of any description whatever, the person from whom such goods, money, chattels or other estate were robbed or stolen, shall be entitled to restitution thereof; and the court may award restitution of the articles so robbed or stolen, and make all such orders and issue such writs of restitution or otherwise, as may be necessary for that purpose.

Code, s. 1201; R. C., c. 35, s. 34; 21 Hen. VIII., c. 11.

RESTORATION TO CITIZENSHIP.

See also PARDON.

Sec. 1004 (2675). Petition for.

Any person convicted of an infamous crime, whereby the rights of citizenship are forfeited, desiring to be restored to the same, shall file his petition in the superior court, setting forth his conviction and the punishment inflicted, his place or places of residence, his occupation since his conviction, the meritorious causes which, in his opinion, entitle him to be restored to his forfeited rights, and that he has not before been restored to the lost rights of citizenship.

Code, ss. 2938, 2940; R. C., c. 58, ss. 1, 3; 1840, c. 36, s. 4.

Sec. 1005 (2676). When and where petition for, filed.

At any time after the expiration of four years from the date of conviction, the petition may be filed in the superior court of the county in which the applicant is at the time of filing and has been for five years next preceding a bona fide resident, or in the superior court of the county, at term, where the indictment was found upon which the conviction took place; and in case the petitioner may

have been convicted of an infamous crime more than once, and indictments for the same may have been found in different counties, the petition shall be filed in the superior court of that county where the last indictment was found.

Code, ss. 2940, 2941; 1897, c. 110; R. C., c. 58, ss. 3, 4; 1840, c. 36, s. 3.

Sec. 1006 (2677). Notice given.

Upon filing the petition the clerk of the court shall advertise the substance thereof, at the court-house door of his county, for the space of three months next before the term when the petitioner proposes that the same shall be heard.

Code, s. 2938; R. C., c. 58, s. 1; 1840, c. 36.

Sec. 1007 (2678). Hearing and evidence.

The petition shall be heard by the judge at term, at which hearing the court shall examine all proper testimony which may be offered, either by the petitioner as to the facts set forth in his petition, or by any one who may oppose the grant of his prayer. The petitioner shall also prove by five respectable witnesses, who have been acquainted with the petitioner's character for three years next preceding the filing of his petition, that his character for truth and honesty during that time has been good; but no deposition shall be admissible for this purpose unless the petitioner has resided out of this state for three years next preceding the filing of the petition.

Code, ss. 2938, 2939; 1897, c. 110; 1901, c. 533; R. C., c. 58, ss. 1, 2; 1840, c. 36.

Sec. 1008 (2679). Decree.

At the hearing the court, on being satisfied of the truth of the facts set forth in the petition, and on its being proved that the character of applicant for truth and honesty is good, shall decree his restoration to the lost rights of citizenship, and the petitioner shall accordingly be restored thereto.

Code, s. 2938; R. C., c. 58, s. 1; 1840, c. 36.

Sec. 1009 (2680). Pardon, or suspension of judgment; procedure after.

Any person convicted of any crime, whereby the rights of citizenship are forfeited, and the judgment of the court pronounced does not include imprisonment anywhere, and pardon has been

RESTORATION TO CITIZENSHIP-RES ADJUDICATA,

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granted by the governor, or the court suspended judgment on payment of the costs and the costs have been paid, such person may be restored to such forfeited rights of citizenship upon application, by petition, to the judge presiding at any term of the superior court held for the county in which the conviction was had, one year after such conviction. The petition shall set out the nature of the crime committed, the time of conviction, the judgment of the court, and that pardon has been granted by the governor, and also that said crime was committed without felonious intent, and shall be verified by the oath of the applicant and accompanied by the affidavits of ten reputable citizens of the county, who shall state that they are well acquainted with the applicant and that in their opinion the crime was committed without felonious intent. No notice of the petition in such case shall be necessary, and no advertisement thereof be made, but the same shall be heard by the judge, upon its presentation, during a term of court; and if he is satisfied as to the truth of the matter set out in the petition and affidavits, he shall decree the applicant's restoration to the lost rights of citizenship, and the clerk shall spread the decree upon his minute docket: Provided, that in all cases where the court suspended judgment it shall not be necessary to allege or prove that pardon has been granted by the governor and in such cases the petition may be made and the forfeited rights of citizenship restored at any time after conviction.

1899, cc. 44, 249; 1905, c. 547.

RES ADJUDICATA.

An affirmance of judgment by the supreme court is an adjudication upon every assignment of error in the record, and of any matter which might have been urged, on a motion in arrest of judgment. Perry, 122-1019; 29 S. E. 384.

But where there is a plea in abatement and a new trial is granted on another point, and the exception to the overruling of the plea is not passed upon, the matter does not become res judicata. Perry, 122-1019; 29 S. E. 384.

Where, upon a mistrial, the defendant moves for his discharge, which motion is refused, and he is required to give bail for his appearance at the next term, the judge presiding at the next term has no right to entertain the motion and discharge the defendant. It is res adjudicata. Evans, 74-324.

RIOT.

INDICTMENT. Where the indictment charges a riot in pulling down and destroying a dwelling-house alleged to be in the possession of a woman, and it appears on trial that the woman is married, though her husband was not living with her at the time the offense was committed, the charge is not supported by the proof, since the charge is not for a general riot, but a riot committed in destroying a particular dwelling-house, and the indictment should state properly whose house it was. Martin, 7 (3 Murph.), 533.

An indictment which alleges that defendants did follow and pursue the prosecutor with sticks and stones "for the purpose of assaulting and beating him," to the terror of the prosecutor and the good citizens of the state then and there residing, sufficiently charges a riot, since it is not necessary to substantive indictable offense, but it is sufficient that the facts charged would constitute an attempt to commit an act of violence which if completed would be an indictable offense. York, 70-66.

An indictment for a riot must charge facts which show a breach of the peace or acts directly tending to it, and not a mere civil trespass; hence an indictment for riotously assembling in front of the prosecutor's house and making a great noise and disturbance, which fails to allege that the prosecutor or any member of his family was in the house or present at the time, is fatally defective, and the defect is not supplied by a conclusion that such acts were "to the great damage and terror" of the prosecutor and his wife, since a conclusion can not make an averment. Hathcock, 29 (7 Ired.), 52.

In an indictment for a riot it is necessary to aver and prove a previous unlawful assembly, and, therefore, if the assembly were lawful, the subsequent illegal conduct of the persons so assembled will not make them rioters. Stalcup, 23 (1 Ired.), 30.

VARIANCE. An indictment for a riot is not supported by proof that defendants assembled in consequence of having been summoned by an officer to aid him in executing a state's warrant issued against the prosecutor, and that the riotous acts were committed after so assembling, since the indictment must always aver, and the evidence prove, that the defendants unlawfully assembled. Stalcup, 23 (1 Ired.), 30.

An indictment charging a riot and forcible trespass to the land of one, is not supported by proof that the land belonged to him, but was then in the possession of another as his tenant. Wilson, 23 (1 Ired.), 32.

EVIDENCE.-Parol evidence of the prosecutor's possession is sufficient. Wilson, 23 (1 Ired.), 32.

PROCESSION-CELEBRATION.-"Defendant and others assembled in a certain town to celebrate the emancipation proclamation, and with two drums and fifes marched up and down the streets for two or three hours. Some were mounted, but being told to dismount they got down and hitched their horses. When told by the mayor to desist they at first refused, but being notified by the constable to stop, the defendant Hughes, with the procession, beating the drum, went to the mayor's office to make up a case to be tried before a magistrate to test the mayor's right to forbid the procession. There were no arms in the crowd except sabres used by the officers; no violence in word or deed was offered to any citizen; some of the citizens were disturbed by the noise of the drums, and some of the persons were drinking; the streets were obstructed from time to time during the interval, and one horse hitched in a lot broke loose": Held, that defendants were not guilty of creating a riot, since the assembly was not unlawful. Hughes, 72-25.

BURDEN ON DEFENDANTS IF THEY CLAIM TO BE OFFICERS.-Where the acts of defendants make them guilty of a riot unless they are able to justify by showing that they were acting as public officers the burden is on them to prove their authority. Atkinson, 51-67.

PRESENCE OF SOME PERSON MUST BE ALLEGED.-An indictment for a riot charging that defendants assembled in front of the house of the prosecutor and making a great noise and using abusive and insulting language, without stating that the prosecutor or some of his family were at home, and without alleging the presence of any one, can not be sustained. Hathcock, 29 (7 Ired.), 53.

ROADS.

Sec. 1010 (3779). Failure to work.

If any person liable to work on the roads shall fail to attend and work, as provided by law, when summoned so to do, unless he shall have paid the one dollar as provided, he shall be guilty of a misdemeanor, and fined not less than two dollars nor more than five dollars, or imprisoned not exceeding five days, and if any defendant shall be unable to discharge the judgment and costs that may be recovered against him, the costs shall be paid by the county.

Code, s. 2020; 1885, c. 392; R. C., c. 101, s. 11; 1817, c. 935, s. 2; 1825, c. 1287; 1879, c. 82, s. 6.

WHO LIABLE TO WORK.-Section hands working on our railroads at regular wages are not thereby excused from working our public roads. Cauble, 70-62. A road hand can not excuse himself from aiding to repair a bridge over a ditch across the road on the ground that it is the duty of the person who cut the ditch to make a bridge over it and keep it in repair. James, 75-393.

WHO LIABLE TO WORK.-A man who pursues a vocation in this state for an indefinite period is liable to road duty, although he is a citizen of another state, to which he intends to return when he finishes his present employment. Johnston, 118-1188; 23 S. E. 921.

The fact that defendant had no occasion to use 'the road to which he was assigned to duty is no defense. Gillikin, 114-832; 19 S. E. 152.

ASSIGNMENT OF HANDS.-The assignment of one liable to road duty to any particular road rests with the supervisors of the township. Gillikin, 114-832; 19 S. E. 152.

EXEMPTION FROM WORK.-Section 25, chapter 147, acts of 1852, which exempts the officers, servants and employees of the Fayetteville and Western R. R. Co. (now the C. F. and Y. V. Co.), incorporated thereby, from working on the public roads, is constitutional. Womble, 112-862; 17 S. E. 491.

Such exemption being in a private act is not repealed by section 2017 of The Code, since by section 3873 of The Code it is provided that "no act of a private or local nature shall be construed to be repealed by any section of this code." Ibid.

JUSTICES NOT INDICTABLE.-Justices of the peace àre not indictable for failure to keep the public roads in repair. This is the duty of the overseer. Britt, 118-1255; 24 S. E. 216.