The defendant is indicted, as Principal Clerk of the House of Representatives of the General Assembly, for causing and permitting to be delivered to the Enrolling Clerk a certain pretended act of Assembly for enrollment. The Assembly was about to adjourn, and on 13 March, 1895, 361 bills were signed by the Speaker, including this bill, No. 1018. The defendant was custodian of all bills and kept them in his office, not far from the Speaker's desk, and he had to leave his office frequently and attend to his duties in front of the Speaker. It appeared also that the defendant necessarily had four or five assistant clerks, and that the members and other persons had access to the office; that on that day there was much crowd and confusion. It appears that the bill was tabled on the preceding evening, and so marked (560) on the back of it; and one witness testified that said bill and others, after the stamp, "Tabled," was on it, were seen in the hands of the defendant. On the same day a lady copyist for the Enrolling Clerk copied said bill and returned it to her principal. She testified that the defendant did not give her the bill and never spoke to her about it, and that she did not notice the back of the bill. The bill was soon afterwards found on the statute book.
We have referred to this much of the evidence merely to show the situation, and the strongest aspect of it for the State. One witness testified that one of the assistant clerks had charge of all bills after they were "sorted" and placed in pigeon-holes in the desk of the office; that said assistant had the key to this desk where all bills were kept, and that he had custody of the bills. The defendant testified that he had no knowledge or information how the Enrolling Clerk came in possession of said *Page 416 bill. There were ten or twelve witnesses examined, and we have carefully read the whole evidence, and we are of opinion that the defendant's motion in arrest ought to have been granted.
The duty of drawing the line between a scintilla and evidence fit for the jury is sometimes difficult and delicate, but it is important, and the court must assume the responsibility. It is a preliminary question for the court, who must find, not that there is absolutely no evidence, but that the evidence is such as would justify the jury in proceeding to a verdict — such evidence as will reasonably satisfy an impartial mind. Comrs.v. Clark, 94 U.S. 278; Wittkowsky v. Wasson, 71 N.C. 451; Young v. R.R., 116 N.C. 932; S. v. Chancy, 110 N.C. 507.
Error.