#### STATE v. INA KING.

(Filed 19 September, 1928.)

Homicide — Manslaughter—Evidence Sufficient to Take Case to Jury.

Evidence tending to show that the defendant knocked the deceased down, jumped on her with both knees in her stomach, and choked her, resulting in peritonitis which caused death, is held sufficient, in an action of homicide, to deny defendant’s motion as of nonsuit, and to sustain the jury’s verdict of manslaughter. S. v. Everett, 194 N. C., 442, cited and distinguished.

Appeal by defendant from Daniels, J., at April Term, 1928, of HERTFORD.

Criminal prosecution tried upon an indictment charging the defendant with the murder of Mary Flossie "Williams.

There is evidence on the record tending to show that on 8 March, 1928, Mary Flossie Williams, a negro girl about 9 or 10 years old, who lived with her grandfather in Hertford County, where the defendant, her aunt in law, also lived, was writing or drawing figures on a piece of paper, when she dropped the same upon the floor, and the defendant’s small boy picked it up, and, in obedience to his mother’s command, gave it to the defendant; whereupon Mary Flossie Williams, according to some of the witnesses, struck the defendant (presumably with her hand), while others say she struck the boy, and the defendant in turn hit the deceased, knocked her down, jumped on her with both knees in her *51stomaeb, and choked her. Peritonitis set in from tbe injury caused to tbe little girl’s stomaeb, and, as a result thereof, she died on 5 April following.

Upon this evidence tbe case was submitted to tbe jury, and from an adverse verdict of manslaughter, and judgment pronounced thereon, tbe defendant appeals, relying chiefly upon tbe court’s refusal to dismiss tbe action as in case of nonsuit.

Attorney-General Brummitt and Assistant Attorney-General Nash for the State.

Bridger & Eley for defenda/nt.

Stacy, C. J.,

after stating tbe case: Considering tbe evidence in its most favorable light for tbe State, tbe accepted position on a demurrer or motion to nonsuit, we think tbe trial court properly submitted tbe case to tbe jury. S. v. Sigmon, 190 N. C., 684, 130 S. E., 854; S. v. Rountree, 181 N. C., 535, 106 S. E., 669; S. v, Carlson, 171 N. C., 818, 89 S. E., 30; S. v. Oakley, 176 N. C., 755, 97 S. E., 616. Tbe function of tbe court when considering a motion of this kind is, not to pass upon tbe weight of tbe evidence, but to determine its sufficiency to support a verdict. S. v. Utley, 126 N. C., 997, 35 S. E., 428; S. v. Hart, 116 N. C., 976, 20 S. E., 1014.

Tbe jury was fully warranted in finding that Mary Flossie Williams came to her death as a direct result of tbe injury inflicted by tbe defendant. Tbe case is not like S. v. Everett, 194 N. C., 442, 140 S. E., 22, strongly relied upon by defendant, for in tbe Everett case there was no sufficient evidence of tbe corpus delicti or to show that a crime bad been committed.

A careful perusal of tbe record leaves us with tbe impression that no error -was committed on tbe trial. Tbe verdict and judgment will be upheld.

No error.