Volume 1 — Alabama Appellate Reports

<p>Appeal from Shelby Circuit Court.</p> <p>Heard before Hon. John Pelham.</p> <p>Roy Cardwell was convicted of homicide and he appeals.</p> <p>It is not sufficiently shown that defendant was present when the verdict was returned. — Wells v. The State, 147 Ala. 140. The court erred in permitting a witness for the prosecution to attend the sick juror and converse with him pending the progress of the trial. — Redd v. The State, 7 Port. 187; Go oh v. The State, 60 Ala. 39; Rains v. The State, 107 Ala. 1.; Wells v. The State, supra.</p>

Heard before Hon. W. W. Pearson. Largus Lett was convicted of murder in the second degree and appeals. The court erred in declining to instruct the jury as to manslaughter in the first degree. — Compton v-. The State, 110 Ala. 35; 109 Ala. 70. The evidence authorizes the jury to find for that degree. — 58 Ala. 406; 78 Ala. 436; 46 Ala. 703; 65 Ala. 446; 73 Ala. 57; 139 Ala. 80.

<p> Murder. </p> <p>1. Appeal 07ul Error; Record; Presumption. — Where the record does not contain the evidence on which the court acted in quashing a grand jury venire drawn by the jury commissioners, it will be presumed on appeal that the evidence justified the ruling.</p> <p>2. Grand Jury; Quashing; Summoning; Special Jury; Statutes.— Where the court quashes a grand jury venire drawn by the jury commissioners, its authority to order a special grand jury is found in-section 7258, Code 1907, and not section 7257, Code 1907.</p> <p>3. Indictment and Information; Quashing; Defects in DranomgGrand Jwry. — Where the grand jury is drawn by the court under section 7258, upon quashing the grand jury venire drawn by the jury commission, the indictment returned by such special grand jury is not subject to motion to quash because not drawn in the presence of' officers designated by law, since it is saved by the provisions of section 7572, Code 1907.</p> <p>4. Same; Abatement; Defects in Gi-and Jury.- — A plea in abatement is not the proper way to raise the questions going to the legal existence of the indictment based on the failure to properly draw the-grand jury returning the indictment.</p> <p>5. Criminal Law; Former Jeopardy; Reversal; Effect. — Where a defendant is convicted of murder in the second degree and procures a reversal of his conviction on the ground of the invalidity of the jury law, under which the jury trying his case had been selected, he estops himself from pleading former jeopardy on account of anything growing out of that trial.</p> <p>6. Same; Unauthoi'ized Discharge of Jury; .Plea; Sufficiency.— Where the unauthorized discharge of a jury on a former trial is relied on in a plea of former jeopardy, the plea should set out the order of discharge or aver that no order was entered upon the minutes, and failing to do so is demurrable.</p> <p>7. Same; Issues; Trial. — Where the defendant pleads former jeopardy and the state replies and demurrer to such replicant is overruled, the court should submit to the jury the issues made by the replication and plea before entering upon the trial on its merits.</p> <p>8. Jury; Venire; Order Fixing; Statutes. — Under the provisions of Acts 1909, p. 319, section 32, where the court fixed the number to constitute the venire at eighty, and ordered thirty names to be drawn to complete the special venire, and only forty-two of the fifty persons drawn to constitute the regular venire were summoned, the special venire was thereby made to consist of a less number of names than that fixed by the court, and the venire was not a legal one.</p>

<p>Appeal from Bessemer City Court.</p> <p>Heard before Hon. William Jackson.</p> <p>Wyatt Lantern was convicted of manslaughter in the first degree, and he appeals.</p> <p>The charge on flight assumed that there was a flight, and its giving was erroneous. — 71 Ala. 17. The court erred in refusing charge A. — Famtroy v. The State, 51 So. 981. A careful examination of the record fails to disclose any proof of venue. — Childs v. The State, 55 Ala. 30. The record purports to contain all the evidence, and for want of proof of venue the defendant is entitled to the affirmative charge as requested in writing by him. — Childs v. The State, supra; Broum v. The State, 27 Ala. 47; Huffman v. The State, 28 Ala. 48 ; 70 Ala. 33.</p> <p>There wa.s no error in permitting the witness’s memory to be refreshed. — Thompson v. The State, 93 Ala. 173. Charge A was properly refused. — Whatley v. The State, 91 Ala. 111. There was sufficient evidence to authorize the jury to find the venue of the offense.— Huggins v. The State, 41 Ala. 393. The bill of exceptions states that it contains substantially all the evidence, and the court will presume under such a state of facts that there was evidence of venue. — Herbert v. The State, 72 Ala. 164.</p>

Heard before Hon. James A. Bilbao. Cleveland Coates was convicted of murder and be appeals. Tbe order fixed tbe venire at fifty names, and fifteen additional names were drawn, but only fourteen summoned, and hence, the venire was in violation of section 32. — Acts 1909, p. 319; Bailey v. The State, in MS. There was a mistake in the names of two of the jurors and these should have been discarded and others summoned. — Section 7267, Code 1907.

Heard before Hon. O. J. Sbmmes. Madison Wingate was convicted of manslaughter in the first degree, and he appeals.

Heard before Hon. J. C. B. Gwin. Griffin Weaver was indicted and convicted of murder in the second degree, and he appeals.

Clair Circuit Court. Heard before Hon. John W. Inzer. Dicarlo Vincenzo was convicted of murder, and he appeals. The exceptions to the venire and the grounds of the motion to quash sufficiently appear from the opinion.

Heard before Hon. D. W. Speake. Lula Bussell ivas convicted of murder in the second degree and she appeals. The court should have sustained the motion to quash the venire. — Jaehson v. The State, 55 S'o. 118, and cases cited. Counsel discuss other assignments of error, with citation of authority, hut it is not deemed necessary to here set them out.

Heard before Hon. T. L. Sowell. Rhea Odom was convicted of murder and he appeals. The defendant’s plea in abatement to the indictment for error in the drawing of the grand jury was not subject to demurrer and the court erred in sustaining the same. It is shown that the grand jury was drawn by the court and not by the judge. — Soott v. The State, 141 Ala. 39.

Heard before Hon. Samuel B. Beowne. William Bilbo was convicted of manslaughter and he appeals. (Maria Bilbo was convicted at the same time and she appeals also, and her case is reversed and remanded.

Heard before Hon. M. Sollie. Hardy Mills was convicted of second degree murder, and he appeals.

Heard before Hon. S. L. Weaver. George Dewyre was convicted of murder and he appeals. The defendant was not present in court when the preliminary proceedings in making the showings, etc., were had, and as soon as he was brought into court against his objection and exception the court proceeded to the selection of the jury. — Sylvester’s Case, 71 Ala. 17; Slocovitch v. The State, 46 Ala. 227.

Heard before Hon. S. L. Brewer. From a conviction of manslaughter Sam Trammell appeals. Counsel discusses the action of the court in the organization of the jury and insist that the court was in error in not placing certain names upon the venire from which the jury was selected, but cites no authority in support thereof.

Heard before Hon. John T. Lackland. Walter Sample was convicted of murder and he appeals. All confessions are prima facie involuntary and inadmissible. — Redd v. The State, 69 Ala. 225; Young v. The State, 68 Ala, 569. The confessions were improperly admitted as sufficient predicate was not laid. — Redd’s Case, supra; Kelly’s Case, 72 Ala. 244; Jackson’s Case, 88 Ala. 76; Burton’s Case, 107 Ala. 125; McAlpine’s Case, 117 Ala. 93; Huffman’s Case, 130 Ala. 92.

<p> Murder. </p> <p>X. Homicide; Evidence; Bes Gestae.- — A eonversatiou just previous to the difficulty between deceased and defendant, in which deceased accused defendant of being too intimate with his daughter and threatened to kill him was admissible as part of the res gestae, and as shedding light upon who was the aggressor.</p> <p>2. Same; Threats. — Threats made by deceased to kill the defendant, made shortly before the difficulty and communicated to the defendant are admissible as throwing light on who was the aggressor, and on the question of whether defendant acted under a reasonable belief that it was necessary to kill in order to save his own life.</p> <p>3. Same; Evidence. — Where it appeared in the evidence that the deceased had accused defendant with being too intimate with deceased’s daughter, the age of the daughter was immaterial in a prosecution for the homicide.</p> <p>4. Trial; Argument of Counsel. — If it be a fact that defendant had improper relation with a daughter of the deceased, this did not deprive him of the right of self-defense, or to claim freedom from fault, and a statement in argument by the solicitor that if defendant’s conduct was improper and that was the cause of the killing, then the defendant cannot say that he was free from fault, was improper.</p> <p>5. Charge of Court; Argumentative. — Charges intended only as answers to argument of counsel are properly refused.</p> <p>6. Appeal and Error; Harmless Error; Presumptions as to Effect. —Where error is shown to have been committed in the admission of evidence, it is presumed, unless repelled by the record, that injury resulted to the party against whom such evidence was admitted.</p>

Heard before Hon. B. M. Miller. Easter Johnson was convicted of assault with intent to murder, and she appeals.

Heard before Hon. O. J. Semmes. Heustis Moseley was convicted of an assault with intent to murder, and appeals. Counsel discusses the Juvenile Delinquent Act for Mobile county, and the constitutionality of the act, as bearing- on the question at issue, but without citation of authority.

Heard before Hon. W. W. Haralson. John Jobe was convicted of assault with intent to murder, and he appeals. The language of the statute is clear and specific, and it is only when the language is susceptible to two or more meanings that the conrts are justified in adopting one meaning rather than another. — Maxwell v. The State, 89 Ala. 161; 36 Cyc. 1111, 1114, and notes; 1 Kan. 285; 28 Mass. 487; 168 U. S. 95; 28 A. & E. Enc. of Law, 596-601.

Heard before Hon. Thomas W. Coleman, Jr. Early Quinn was tried for an assault witb intent to mnrder and convicted of an assault witb a weapon, and be appeals.

Heard before Hon. John T. Lackland. Sidney Poellnitz was convicted of an assault with intent to murder Belle Banks, and he appeals. Counsel discusses assignments of error relative to evidence, hut without citation of authority.

Apptmt, from Walker Law and. Equity Court. Heard before Hon. T. L. Sowedl. Cebe Wright was convicted of assault and battery and he appeals. Counsel discuss assignments of error as to evidence, but without citation of authority. They insist that the court erred in refusing written charge 3, and cite DeArman v. The State, 71 Ala. 356; Jackson v. The State, 77 Ala. 18.

■ Appeal from Morgan Law and Equity Court. Heard before Hon. Thomas W. Wert. Delza Lang and another was convicted of rape.and they appeal. Good or bad character for chastity or for veracity must be established only by evidence of general reputation. — Jackson v. The State, 41 South. 178; Jackson v. The State, 106 Ala. 12; Jackson v. The State, 78 Ala. 471; Holmes v. The, State, 88 Ala. 26; Moore v. The State, 36 Ala. 211; Man-tin p. Martin, 25 Ala. 201; 3-Enc. of Ev. 33-40.

<p> Assault With Intent to Rape. </p> <p>1. Trial; Province of Court and Jury. — Where there was no evidence from which the jury could reach a different conclusion, it becomes a question of law for the court; but where different conclusions can he drawn from the evidence a jury question then arises.</p> <p>2. Rape; Assault with Intent. — The evidence examined and held sufficient to sustain a conviction for assault with intent to ravish.</p>

Morgan Law and Equity Court. Heard before Hon. Thomas W. Wert. John Goodwin was convicted of having carnal knowledge of a girl under age of consent, and be appeals. Everything necessary to make out a case against the defendant beyond a reasonable doubt must be shown by the state. — Wharton v. The State, 73 Ala. 366; Horton v. The State, 73 Ala. 255; Martin’s Case, 19 Ala. 1.

<p> Robbery. </p> <p>1. Jury; Venire; Excessive Number; Harmless Error. — Where the court ordered seventy names as a special venire to try defendant and drew from the jury box thirty names to complete same and it appeared from the record that fifty names were drawn for the venires for the week, forty-eight of whom were summoned, thus constituting a venire of seventy-eight instead of seventy, no error prejudicial to the defendant occurred.</p> <p>2. Same; Drawing; Objection; Waiver. — Where the defendant participated in reducing the venire to the number ordered he waived his right to complain because of the excess in the original drawing.</p> <p>3. Same; Quashing; Motion; Review.- — The court will not review the action of the trial court in denying the defendant’s motion to quash a venire on grounds de hors the record where it is not shown by the bill of exceptions.</p> <p>4. Robbery; Indictment and Information; Description of Property. —An indictment for robbery otherwise sufficient which charges that the defendant feloniously took one twenty-five cent piece of the silver coin of the United States of America, and sixty-five cents lawful money of the United States of America, the particular description of which is otherwise to the grand jury unknown, is not defective for failure to allege a sufficient' description of the property or for indefiniteness or for failure to charge that the twenty-five cent piece was lawful money of the United States, etc.</p>

Heard before Hon. A. H. Alston. Bob Welch was convicted of robbery and. he appeals. No brief came to the Reporter. Counsel insist that under the statute as now framed service upon the attorney was sufficient, as otherwise a defendant charged with a capital felony and on bail might never be brought to trial.

Heard before Hon. John Pelham. Bob Johnson was convicted of Arson and he appeals. The defendants were entitled to the affirmative charge on account of a variance between the allegation and proof as to ownership. — Adams v. The State, 62 Ala. 177; 85 Ala. 114; Thomas v. The State, 97 Ala. 3; Fornler v. The State, 100 Ala. 96; Hill v. The State, 104 Ala. 64. Counsel discuss other assignments of error, not necessary to bo here set out.

Heard before Hon. John Pelham. Bob Johnson was convicted of Arson and he appeals. The court erred in overruling the motion to quash the indictment. — Sec. 6296, Code 1907; Horton v. The State, 60 Ala. 72; Noble v. The State, 59 Ala. 73. On these authorities it is insisted that the demurrers to the indictment were improperly overruled.

Heard before Hon. S. L. Weaver. Will Henderson was convicted of burglary and he appeals. Counsel insists that the court will not take judicial knowledge that Birmingham was in Jefferson county, and that the venue was not otherwise proven, and hence, the defendant was entitled to the affirmative charge. There was sufficient evidence from which it could be inferred that the crime alleged was committed in Jefferson county. — Ciarle v. State, 78 Ala. 474.

<p>Appeal from Lauderdale Circuit Court.</p> <p>Heard before Hon. C. P. Almon.</p> <p>From a conviction of burglary Monroe Hampton appeals.</p> <p>No brief came to the Reporter.</p>

Larceny. Appeal from Jefferson Criminal Court. Heard before Hon. S. L. Weaver. Council Stephens was convicted of grand larceny, and he appeals. The charge was the felonious taking and carrying away of one automobile tire, the property of Sam W. Fowlkes, of the value of $37.60.

Heard before Hon. William E. Fort. Cornelius Black was convicted of larceny, and he appeals.

Appeal, from Jackson Circuit Court. Heard before Hon. W. W. Haralson. Thomas W. Higdon was convicted of grand larceny, and he appeals. The tendencies of the evidence are sufficiently set out in the opinion.

Heard before Hon. J. W. Mabry. Elijah Boswell was convicted of grand larceny, and he appeals. • The evidence tended to show that prosecuting witness lost about $75 in a. confidence game, in which he, the defendant, and one Fitten were engaged; that defendant picked up a pocketbook in the streets, and that Fitten accosted the prosecuting witness, calling his attention to the fact that Boswell had picked up a pocketbook, and calling Boswell back to tell him that they saw him,…

Heard before Hon. Thomas W. Coleman. Jk. O. B. Earle was convicted of grand larceny and be appeals. The court erred in denying defendant the right to. ask the prosecuting witness if it was not against the rules of his employer to gamble. — Pace v. L. & IV., 52 South. 57.

Heard before Hon. C. P. Almon. Emmet Mangrall was convicted of disposing of property on which another had a lien, and he appeals. The first count in the indictment charged the removing or selling of personal property, to-wit, one black mule, with the purpose to hinder, delay, or defraud one who had a lawful and valid claim thereto; the defendant having at the time a knowledge of the existence of such claim.

Heard before Hon. Milo B. Abercrombie. Tom S. Fort was convicted of selling or conveying mortgaged property and be appeals. The execution of a subsequent mortgage on the same property previously conveyed by mortgage is not a violation of section 7423, Code 1907. — Allison v. The Stale, 69 Ala. 1; Cobb v. The State, 100 Ala. 19; Lipman v. The State, 104 Ala. 61; see also 67 L. R. A. 461 and 7 Cyc. 62.

Heard before Hon. O. J. Semmes. Wallace McIntyre Avas convicted of obtaining money by false pretenses, and appeals.' Tbe indictment charged that defendant, Avith intent to defraud, did falsely pretend that he had one sorrel horse, named Charlie, seven years old, and one black mare mule, named Maud, six years old.

Heard before Hon. William: E. Fort. Phillip Lauzaza was convicted of violating the prohibition law, and appeals. The affidavit charged the selling, or aiding, abetting, and counseling the unlawful sale, of spirituous, vinous, or malt liquors, and was made before I. H. Benners, judge of the inferior court of Birmingham, and a warrant issued thereon was made returnable before the judge of the criminal court of Jefferson county.

Heard before Hon. S. L. Weaver. B. H. Allison was convicted of having sold, offered for sale, kept for sale, or otherwise disposed of, intoxicating liquors contrary to law, and he appeals. Evidence of a distinct substantive offense is not to be received in support of another offense, although similar, nor can evidence of offenses subsequent to the time of the offense charged or the issuance of the indictment be given. — Gassenheimer v. The State, 52 Ala. 313.

Heard before Hon. Thomas W. Coleman, Jr. William Grace was convicted of violating the prohibition law, and he appeals. The part of the oral charge excepted to is as follows: “It wouldn’t make any difference whether it was his whisky, or whether he got it from somebody else. If he furnished it, it wouldn’t make any difference about the money consideration.

Heard before Hon. T. L. Sowell. Harry Bradley was convicted of violating the prohibition law and he appeals. No brief came to the Reporter. There was sufficient evidence of sale to support the verdict of guilt, and the action of the court in denying the motion for new trial is not here revisable. — Burridge v. The State, 113 Ala. 108; Dorsey v. The State, 107 Ala. 157; Fountain v. The State, 98 Ala. 40.

Heard before Hon. B. M. Miller. Albert Martin was convicted of violating the prohibition law, and he appeals. The original affidavit was sworn to by J. G. Brown and made before A. H. Gentry, a justice of the peace, dated May 9, 1910, and alleged that the crime was committed within 60 days before the making of the affidavit.

Heard before Hon. W. W. Pearson. Elbert Gresham was convicted of violating the prohibition law, and he appeals.

Heard before Hon. T. L. Sowell. From a conviction for violating tbe prohibition law William Cook appeals. The court should have sustained defendant’s demurrer to the indictment. — Marks v. The State, 48 So. 864. Counsel discuss assignments of error relative to evidence, but without citation of authority. They insist that under the evidence the defendant was entitled to the affirmative charge, but cite no authority in support of their contention. No brief came to the Beporter.

Heard before Hon. Thomas W. Coleman, Jr. Simpson Yancey was convicted of violating the prohibition law, and he appeals.

Heard'before Hon. John H. Disque. James T. Howie was convicted of violating the prohibition law and he appeals. No venne was shown, and hence, defendant was entitled to the affirmative charge. — Smith v. The State, 118 Ala. 121; Dentler v. The State, 112 Ala. 70; Randolph v. The State, 100 Ala. 141.

Heard before Hon. W. W. Haralson. S. Newton Harper was convicted of violating the prohibition law, and he appeals.

Heard before Hon. Thomas W. Coleman, Jr. Tom Hurst was convicted of forging and uttering a cotton receipt, and he appeals.

<p> Adultery. </p> <p>1. Adultery; Evidence; Bes Gestae.- — Where the evidence tended to show adultery between defendant and a married man, at a house where defendant, the man and his wife lived, it was competent for the state to introduce evidence tending to show that the defendant and the man co-operated in driving the wife away from the house, and that the defendant used abusive language to the wife.</p> <p>2. Same. — Where it appeared that the mother of the man with whom defendant was accused of living in adultery rented the house in which the parties lived, and this was not controverted by the state, the question as to who paid the rent was irrelevant to any issue presented.</p> <p>3. Appeal and Error; Review; Presumptions. — Where the record fails to disclose what the evidence was which was sought to be rebutted, it will not be presumed on appeal that the evidence offered by the state was not admissible in rebuttal.</p> <p>4. Witnesses; Examination; Gross. — Where the wife of the man with whom defendant was alleged to have lived in adultery testified that she and defendant came from a certain place about a month before the defendant came, it was immaterial whether the woman’s husband and children were with her when she came, and the court properly refused to permit cross-examination as to that matter.</p> <p>5. Same; Impeachment. — Where a witness, on direct examination, testified to a conversation, it was competent for the state to ask her on cross examination, if she had made certain statements in that conversation, and upon a denial that she had, could show in rebuttal that the statement had been made by the witness.</p>

Heard before Hon. E. S. Lyman. Paul Rich was convicted of living in adultery and he appeals. No brief came to the Reporter. The questions raised by the demurrers to the affidavit have been decided adversely to the appellant in McLeod v. The State, 35 Ala. 395. No other questions are presented.

Heard before Hon. I. B. Slaughter. Jim Parker was convicted under an indictment charging him with unlawfully engaging in horse racing on a public highway, and he appeals.

Clair Circuit Court. Heard before Hou. J. E. Blackwood. Robert J. Dodd was convicted for hauling logs over a public road in St. Clair county without license, and he appeals.

Jefferson Criminal Court. Heard before Hon. William Jackson. John Perry was convicted of violating a municipal ordinance and he appeals. Counsel insist that as this is a quasi-criminal case merely, errors should have been assigned upon the' record, and in the absence of such an assignment, the cause should be affirmed.

Heard before Hon. T. L. Borum. Glarence Bostick was convicted of vagrancy in that he abandoned his wife without just cause, and he appeals. The marriage being accomplished by duress was open to annullment, and not having been ratified, the fact of duress should have been permitted in evidence. — Marsh v. Whittington, 50 South. 326; Kennedy v. Roberts, 75 N. W. 363; Kensinger v. Dyer, 48 S. W. 912.

Heard before Hon. William Jackson. H. J. Thompkins was convicted of malicious injury to animals, and he appeals. The court erred in overruling demurrers to the complaint. — 66 Ala. 465; TO Ala. 12; 77 Ala. 66. There can be no conviction without proof of guilty intent where it is the essence of a crime. — 2 Bish. Orim.

Heard before Hon. E. J. Garrison. Will Gray was convicted of carrying a pistol, and he appeals. The affidavit ivas made before J. W. Miller, a justice of the peace, and charged the carrying of a pistol concealed by the person. The warrant thereon was made returnable before the judge of the county court of Clay county on the 1st day of July, 1909, next.

Heard before Hon. J. N. Ham. Luke Flowers was convicted of permitting stock to run at large, and be appeals.

Appel from Crenshaw PTobate Court. Heard before Hon. F. M. T. Tankersly. Green Butler and others were indicted for murder in the first degree, and being confined in jail under a mittimus issued on such indictment, they brought habeas corpus for discharge on bail, and from an order denying the writ they appeal.

Heard before Hon. M. Sollie. Action by Algy Thomas against the Central of Georgia Railway Company for damage to stock. Judgment for plaintiff and defendant appeals. The negligence is attributed to the defendant corporation, and there was no proof of its participation in the damnifying act and the defendant was entitled to the affirmative charge on this theory. — O. of G. v. Freeman, 140 Ala. 581.

<p>Appeal from the Birmingham City Court.</p> <p>Heard before Hon. C. C. Nesmith.</p> <p>Action by the Greek-American Produce Company against the L. & N. R. R. Co. for damages to freight while in transit or before delivery. Judgment for plaintiff and defendant appeals.</p> <p>There being no bill of lading in this case the common law governs the liability of the defendant and will be found stated in the following cases: A. G. 8. v. Little, 71 Ala. 611; M. & W. P. Co. v. Moore, 51 Ala. 394; 8. & N. Ala. R. Pi. Go. v. Heinlein, 52 Ala. 606; McCarthy v. R. R. Go., 102 Ala. 193; 8teele v. Townsend, 37 Ala. 247. Where there is no proof to the contrary the law presumes that the goods were in good condition when delivered to the initial carrier and were in like condition when delivered to the connecting carrier. —M. & W. P. Go. v. Moore, supra; So•. Ex. Co. v. Hess, 53 Ala. 19; L. & N. R. R. Go. v. Cowherd, 120 Ala. 58; 83 Am. St. Rep. 675; 6 Cyc. 491; 23 S'. W. 801 The burden of proof is always on the carrier to show facts exculpating it from liability. — Authorities supra; Walters v. A. G. 8'., 39 So. 87. The presumption that the defendant received the goods in good condition is not affected by the fact that the car was sealed when it came to the defendant and that its agents could not see the condition of the contents. — 15 N. W. 872; 30 Am. St. Rep. 577. The defendant was not relieved of its duty to ventilate by the custom attempted to be shown. — W. Ry. of Ala. v. Hart, 49 So. 371.</p> <p>Counsel insist that no exception was reserved to the finding of the trial court- on the facts and the judgment rendered thereon and that as this is an appeal from an order granting a motion for a new trial, this court cannot review those things which could he properly presented only by exceptions reserved during the course of the trial. They discuss other matters referred to in brief of counsel for the appellant and insist that they have no particular bearing on the case in hand.</p>

Heard before Hon. W. W. Haralson. Action by Rena Hardin against the Southern Railway Company, for injury to her while a passenger. Judgment for plaintiff and defendant appeals. The court erred in admitting the evidence objected to as the answer made no reference to any suffering but was a statement to a third person about what happened at the time of the injury. — R. & D. R. R. Go. v; Hammond, 93 Ala. 181.

Heard before Hon. William H. Thomas. Appeal from Montgomery City Court. Action by Thomas N. Butler against the Louisville & Nashville Bailroad Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. Charles A. Senn. Action by J. L. Beck against the Birmingham Ry., Light & Power Company, for damages on account of injury alleged to have been inflicted upon his wife by the defendant carrier while she was a passenger thereon. Judgment for plaintiff and defendant appeals. The court erred in admitting evidence that the doctor suggested that plaintiff’s wife go to the hospital. — B. R. M. Go. v. Rochhold, 143 Ala. 115.

Heard before Hon. A. O. Lane. Action by N. H. Fancher against the St. Louis & San Francisco Bailroad Company for injuries occurring while in its employment. Judgment for plaintiff and the defendant appeals. The general charge with hypothesis should have been given for the defendant. — L. & N. v. Mother shed, 97 Ala. 261; A. G. 8. v. Roach, 110 Ala. 266; 69 la. 154; 88 Ya. 512; 102 la. 507; 26 Cyc. 1267; 1 Lab. sec. 356, and cases cited.

Heard before Hon. C. P. Almon. Action by T. H. Bottoms against the Illinois Central Railroad Company for damages for killing a mule. Judgment for plaintiff, and defendant appeals.

Heard before I-Ion. R. T. Simpson, Jr., Special Judge. Action by John Wilson against the Alabama Western Railroad Company, for damages to his land. From a judgment for plaintiff defendant appeals. The plea in abatement was good under section 6112, Code 1907, unless the action was in tort.- — Sullivan v. Sullivan T. Co.} 103 Ala. 371.

Damages for Delay in Delivering Baggage. Appeal from Jefferson Circuit Court. Heard before Hon. A. O. Lane. Action by G-. C. Lilly against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals.

Heard, before Hon. C. W. Ferguson. Action by Joe Craig against the Birmingham Southern Railroad Company, for damages for injury to him while in'its employment. Judgment for plaintiff and defendant appeals. Counsel discuss the portion of the court’s oral charge to which exception was reserved and insist that it was error, but cite no authority in support thereof.

Heard before Hon. C. P. Alm'on. Action by A. J. Feldman against the Northern Alabama Railway Company, for damages for loss of goods. Judgment for plaintiff and defendant appeals. The 6th and 7th ground of demurrer to the complaint should have been sustained as the complaint nowhere shows that the negligence alleged resulted in the loss of the goods.

Heard before Hon. Safford Berney. Action by Frank Davis against the Mobile Light & Railway Company, for damages for killing horse. Judgment for plaintiff and defendant appeals. The complaint specifies the particular acts of negligence relied on, and the presumption arising from the statute extends only to the particular negligence alleged. — 33 Cyc. 1275; 120 Ga. 475.

I-Iearcl before Hon. W. W. Haralson. Action by A. B. Casey, as administrator of Hetty Casey against the Nashville, Chattanooga & St. Louis Railway Company, for damages for injury to Hetty Casey while a passenger. Judgment for plaintiff and defendant appeals. The law does not impose upon the conductor the duty of seeing and knowing that all passengers have alighted who intended to do so.

Heard before Hon. W. W. Haralson. Action by D. P. Barclay against the Southern Railway Company for damages to freight by rain. Judgment for plaintiff and defendant appeals. There is but one legal question in this case, and that is whether the liability of the carrier ceased when the car was detached from the train, and left at the siding, its destination and was partially unloaded by the shipper.

Heard before Hon. O. W. Ferguson. Action by Ernest E. Drake against the Birmingham Belt Railroad Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Thomas W. Wert. Action by Jobn B. Bentley by bis next friend against tlie Southern Bailway Company. From a judgment for plaintiff, defendant appeals. The complaint was as follows: “Plaintiff, who was under 21 years of age, sues the defendant, the Southern Bailway Company, a corporation, to recover $2,000 as damages for injury received by him on, to wit, the 11th day of September, 1907.

Apppeal from Colbert Circuit Court. Heard before Hon. C. P. Almon. Action by Orlando Goins by next friend against tbe Southern Railway Company, for injuries received while engaged in its employment. Judgment for plaintiff, and defendant appeals. Counsel discuss the assignments of error relative to pleading, but without citation of authority.

Heard before Hon. J. O. Richardson. Action by W. L. Perkins, as administrator of the estate of Isaac R. Dykes, deceased, against the Louisville & Nashville Railroad Company. Judgment for plaintiff in the court below, and defendant’s motion in that court to set off against plaintiff’s final judgment the judgments for costs rendered in its favor against plaintiff on appeals taken to the Supreme Court during the litigation was denied, and defendant appeals.

Heard before Hon. W. W. Haralson. Action by Rebecca Arrington against the Alabama Great Southern Railway Company, for damages for putting her off at the wrong station. Judgment for plaintiff and defendant appeals.

Heard before Hon. E. C. Crowe. Trover by tbe Jaffe Jewelry Company against J. C. Vines for a diamond ring. Judgment for plaintiff, and defendant appeals. Each of the pleas were in estoppel and were good. — 16 Cyc. 697; lb. 809.

Heard before Hon. C. C. Nesmith. Action by the Huttig Manufacturing Company against the People’s Savings Bank & Trust Company for conversion. Judgment for plaintiff, and defendant appeals. The complaint is the same as that set out in the case of Traders’ National Bank v. Huttig Manufacturing Oompcmy, infra, 55 South. 928.

Heard before Hon. John W. Inzer. Action by J. E. Holland against J. J. Henderson in trover and trespass for a bale of cotton. Judgment for plaintiff, and defendant appeals.

J. C. Richardson. Action by Henderson & Hill against J. W. McNeill. From a judgment for plaintiffs, defendant appeals. Plaintiffs claim under crop mortgages executed to them by one Neal Turner on December 7, 1905, and on January 27, 1907, respectively. The defendant claimed under a crop mortgage from Neal Turner executed January 11, 1907.

Heard before Hon. C. P. Almon. Trover by J. H. McIntosh against Farmers’ Union Warehouse Company. Judgment for plaintiff and defendant appeals. The act of the legislature provided for this term of the court is unconstitutional because it was not incorporated in the Governor’s call for the special session, and received but fifty-five votes in the house which is composed of 105 members, requiring a vote of seventy for its passage.— Section 36, Constitution 1901.

Heard before ITon. \Y. \V. Pearson. Action in trover for tlxe conversion of two bales of cotton brought by A. M. Wadsworth, against Sellers & Orum Company. Judgment for defendant- and plaintiff appeals. The plaintiff made out his case. — Boutwell v. Parker, 124 Ala. 341; Milner v. DeLoach M. Go., 139 Ala. 654.

Heard before Hon. S. L. Brewer. Action by J. W. Harper against W. W. Wood. Judgment for plaintiff, and defendant appeals. So far as can be gathered from the record, the action was begun in the justice court, and ivas for the conversion of a horse.

Heard before Hon. E. C. Crowe, Action by Arthur W. Massey against J. W. Fain in trover, for the conversion of a horse. Judgment for defendant and plaintiff appeals. Counsel insists that the court erred in excluding the value of the horse. —Bout-well v. Parker, 124 Ala. 341. There was no question as to the time of the conversion. — Wood v. Bose & Co., 135 Ala. 297.

Heard before Hou. D. W. Speaks. Trover by S. Roman as trustee against the Dreher Mfg. Co., and others. Pending the trial the complaint was amended by striking out the name of the other defendants except Emmett Lloyd, and the court rendered judgment for him, and plaintiff appeals.

Heard before Hon. John H. Disque. Action by Herman Wright against F. N. Hudson. From a judgment for plaintiff, defendant appeals. The complaint contained counts in trover and other counts for the destruction of a lien.

Heard before ITon. John T. Lackland. Action by Will King against William Sawyer and the sureties on libs official bond; for damages for the wrongful issue of a writ of restitution in an unlawful detainer suit after the filing of the supersedeas and appeal bond. From a judgment sustaining demurrers to the complaint, plaintiff appeals. The inquiry is whether or not the act was an exercise of the jurisdiction -or authority conferred by law. — Coleman v. Roberts, 21 So. 429.

Heard before Hon. A. O. Lane. Action by Jennie Murray against tlie Birmingham Water Works Company, for damages for suspending service paid for. Judgment for plaintiff and defendant appeal. The court erred in its charge that a recovery could be had for wantonness and in refusing charge 2 requested by the defendant.— R. R. Go. v. Foster, 134 Ala. 244; Swope’s Gase, 155 Ala. 287; Ga. Pac. v. Lee, 92 Ala. 262; Anmiston P. W. v. Dickey, 93 Ala. 421; Mont. St. Ry.

Heard before Hon. Thomas W. Coleman, Jr. Action by Moat. Tarrant against Donahoo & Matthews for damages for breach of warranty in the sale of a mule. Judgment for plaintiff and defendant appeals. Counsel discuss assignments of error relative to the evidence and the charges and cite authorities in support thereof, but do not discuss the points decided.

Montgomery Circuit Court. Heard before Hon. W. W. Pearson. Action by H'ettie Earp against J. P. Stephens and his official bond for damages for the wrongful issuance of a writ of attachment. From a. judgment sustaining demurrer to the complaint plaintiff appeals.

Heard before Hon. C. C. Nesmith. Action by the Huttig Manufacturing Company against the Traders’ National Bank for conversion. Judgment for plaintiff, and defendant appeals.

Heard before Hon. S. L. Brewer. Detinue by C. Y. Conner against Dudley Du Bose. Judgment for plaintiff, and defendant appeals.

Heard before Hoa. B. M. Miller. Detiaue by Alabama Macbiaery & Supply Company against tbe Bank of Camden for a planer and matcher. Judgment for defendant, and plaintiff appeals. The plaintiff claimed the title to the property through a contract of sale retaining title to the property executed by T. J. Jones & Co., and the bank claimed through a mortgage executed on said property by the individuals composing the firm of T. J. Jones & Co. and by the firm.

Heard before Hon. A. A. Coleman. Action by Jaffe Jewelry Company against Bessie Ellsworth in detinue for a piano. Judgment for defendant, and plaintiff appeals.

Heard before Hon. E. S. Lyman. Action by H. M. Judge & Co., a partnership, against the Washburn-i Tosby Milling Company. Judgment for defendant, and plaintiffs appeal. The first count claimed for a breach of warranty in the sale of 100 barrels of flour, which was warranted to be regular and good quality of Gold Medal brand. The second count was for deceit in the sale of said flour.

Heard before Hon. T. L. Sowell, Action by Mrs. Millie Barton against the City of Jasper. Judgment for plaintiff, and defendant appeals. The complaint is as follows: “Plaintiff claims of defendant $200 as damages, for that tbe defendant is a municipal corporation charged with the duty of repairing and keeping in repair the streets of the city of Jasper, and of not injuring the plaintiff or her property in so doing.

Heard before Hon. C. W. Ferguson. Action by Thea Darden against the town of East Lake for damages for maintaining a nuisance. Pending the trial the limits of the city of Birmingham, were so extended as to include the town of East Lake, and by amendment the city of Birmingham was substituted as the sole defendant. Judgment for plaintiff and defendant appeals.

Heard before Hon. T. L. Borum. Action by the Singer Sewing Machine Company against J. M. Henderson on detinue bond. Judgment for defendant, and plaintiff appeals.

Heard before Hon. H. A. Pearce. Action by W. C. Murphy against H. N. Williams for false imprisonment. Judgment for defendant, and plaintiff appeals. The complaint was in statutory form, and grew out of an arrest of plaintiff and a commitment for a contempt of court.

Heard before Hon. IT. A. Peakce. Action by the C. D. Chapman & Co. against H. O. Teat for the destruction of a lien. From a judgment for plaintiff, defendant appeals.

Heard before Hon. B. M. Miller. Detinue by H. C. & W. B. Reynolds against David Seim an, in which the E. E. Forbes Piano Company was substituted as claimant. Judgment for plaintiffs, and claimant appeals. The facts sufficiently appear in the opinion of the court.

Heard before Hon. H. A. Pearce. Arch Dowling was convicted of a violation of a municipal ordinance of tbe city of Troy, and he appeals. There was conviction in the mayor’s court for a violation of the prohibition law, and the defendant was sentenced to pay a fine of $100 and $2 costs. On appeal to the circuit court there was a vedict of guilty, and a fine of $50 attached.

Heard before. Hon. William: H. Thomas. Action by J. P. Barefield against the city of Montgomery to ljecover street tax paid under protest. Judgment for plaintiff, and defendant appeals. The complaint is as follows: Count 2: “Plaintiff claims of defendant $8, for that heretofore, on, to wit, December 8, 1908, said city of Montgomery adopted an ordinance providing for a street tax in the city of Montgomery, which ordinance was approved by the mayor on, to wit, January 4, 1909.

Heard before Hon. Armstead Brown. M. N. Gilmer was convicted in the recorder’s court of the city of Montgomery for a violation of the street tax ordinance and appeals to the city court of Montgomery where a judgment was entered acquitting him of the charge and the city appeals. Counsel uses the same argument and cites the same authority as is cited in his brief in the case of Gity of Montgomery v. Bare-field, next above.

H. A. Sharpe. Application for habeas corpus by L. J. ITaley, for and on behalf of Sherry McWilliams, alleged to be unlawfully restrained. From an order granting the petition the state appeals.

• Appeal from. Birmingham City Court. Heard before Hon. H. A. Sharpe. Application for habeas corpus by L. M. Smith, for the benefit of George Lee. From an order denying the petition, petitioner appeals. The court exceeded its jurisdiction in sentencing the prisoner for a time to pay costs at the rate of 40 cents per day, and the entire sentence of costs was therefore void. — Ex parte Long, 87 Ala. 46;.

Heard before Hon. Alex. C. Edmundson. Hill Adams was convicted in the recorder’s court of the city of Troy and sentenced to two hundred and eight days to pay fine and costs. He applied for habeas corpus to be discharged, making the hard labor agent of the city of Troy respondent. From an order discharging petitioner, the city of Troy and its hard labor agent appeals.

Heard before Hon. H. A. Pearce. Petition for certiorari by Hill Adams against the city of Troy. From an order denying the petition, he appeals.

H. W. Speaks. Assumpsit by F. R. Engelbert against Ella Taylor and others. Judgment for defendants and plaintiffs appeal. It is tlie duty of the court to set aside the verdict where there is no evidence to support it. — Gobb v. Malone, 92 Ala. 630. Release of a debt must be based on a valuable consideration.— 8charf v. Moore, 102 Ala. 468; M. & M. By. Go. v. Oicen, 121 Ala. 505.

Heard before Hon. Saffold Berney. Action by Terry L. Moore against Mrs. Mary E. Min-to. Judgment for plaintiff, and defendant appeals. Action to recover broker’s commission in the sale of real estate. The first and second counts were on account and for work and labor done. The other counts .allege‘a breach of agreement entered into between Terry L. Moore & Co., a partnership consisting of Terry L. Moore and Theo.

Heard before Hon. William Jackson. Action by J. W. Barden against W. H. Salter for balance due on note. Judgment for defendant and plaintiff appeals. The court erred in overruling demurrers to the 2nd plea. — Cowan v. Campbell, 31 So. 439. The court erred in sustaining demurrers to plaintiff’s replication numbered 2, 5 and 6.— Secs. 3321 and 3328, Code 1907.

Heard before Hon. John H. Disque. Action by E. C. Wallace against G. H. Myrick for work and labor done. Judgment for defendant and plaintiff appeals.

Heard before Hon. C. P. Alm'on. Assumpsit by C. L. Haley against J. D. Frierson. Judgment for plaintiff, and defendant appeals. Counsel discuss the errors assigned but does not discuss the questions here decided. Counsel appear specially for the purpose of moving the dismissal of the appeal for want of issuance and service of citation upon the appellee or their counsel, and in support of their motion they cite Sec. 2881, Code 1907.

Heard before Hon. S. L. Brewer. Action for use and occupation of a house, begun by attachment in the justice court by R. O. Mooty against David Doyle and carried by appeal to the circuit court where there ivas judgment for the defendants and plaintiff appeals.

Clair Circuit Court. Heard before Hon. J. A. W. Smith, Special Judge. From an order vacating and annulling an order granting to the defendant a new trial, made at a term of the court subsequent to the last order, the defendant appeals and applies for mandamus to compel a vacation of the last order. Tlie cause was not discontinued. — Ex parte Remsen, 31 Ala. 270; Ex parte Rivers, 40 Ala. 712; Ex parte State ex rel. Attorney General, 22 So. 556.

Heard, before Hon. C. O. Nesmith. Assumpsit by City Loan & Banking Company against E. B. Byers. Judgment for defendant and plaintiff appeals. The case in the inferior court was not pending. — Ex parte Humes, 130 Ala. 201; 14 Cyc. 392. The suits were not the same. — Gil-breath v. Jones, 66 Ala. 132; 23 Cyc. 1165. An action of deceit is not based upon the contract, but upon the tort. — 20 Cyc. 86.

Heard before Hou. A. H. Alston. Action by E. B. DeJernett by W. G. Collier, for breach of contract. Judgment for plaintiff and defendant appeals. No brief came to the Reporter. No brief came to the Reporter.

Heard before Hon. E. C. Cr'owe. Assumpsit by Br,ewer & Jones against P. H. O’Brien. Judgment for plaintiff and from an order overruling motion for a new trial, defendant appeals. The court should have permitted the motion to be amended. — Ex parte E. A. & B. B. R. Co., 17 So. 182; Secs. 5366-7, Code 1907. The. court erred in overruling appellant’s motion to set aside the judgment nil dicit. — Ex parte E. A. & B. R. R. Go., supra; Sec. 5372, Code 1907.

Hearyl before Hon. S. L. Brewer. Assumpsit by White ■& Awbrey against W. G. Taylor. Judgment for plaintiffs and defendant appeals. The court erred in admitting evidence that the defendant said to the plaintiffs before making the contract sued on that he was twenty-one years old, as the defendant could not be boun d by any declaration made while a minor. — 59 Ala. 441; 51 Ala. 377; 86 Ala. 442; 71 Ala. 248; 124 Ala. 574.

Heard before Hon. James J. Bay. Action by N. W. Davis against the Barney Coal Company. From a judgment for, plaintiff, defendant appeals.

Heard before Hon. A. E. Gamble. Action by Jeff Millsapp against O. M. Woolf on bill of exchange or, bank check. Judgment fob defendant and plaintiff appeals. The first count was upon a bill of exchange, the second count was on a bank check alleged to' have been countermanded by the defendant, and the third count was upon an account stated. The pleas were as follows r The general issue.

Heard before Hon. Saeeold Berney. Assumpsit by the McIntyre Lumber & Export Company for the price of lumber sold. Judgment for plaintiff and defendant appeals. The only errors insisted upon ar,e the overruling of objections to questions as to transactions between appellee and a third party, and it is insisted that these transactions were entirely irrelevant and immaterial to any issue in the case. — Wigmore on Evi. p. 90-91.

Heard before Hon. Charles A. Senn. Action by N. J. Harden against the Birmingham Trust & Savings Bank in case for failure to pay check. The action was begun prior to the going into effect of the Code of 1907, and after the Code went into effect the complaint was amended by adding a count in assumpsit. Judgment for defendant and plaintiff appeals.

Heard before Hon. Wiiliam Jackson. Assumpsit by tbe Western Newspaper Union against W. H. H. Judson. Judgment for defendant and plaintiff appeals. Tbe court erred in declining to permit the complaint to be amended by the addition of a statement that it was upon an itemized, verified account. — Secs. 3970 and 5467, Code-1907. The court should have stricken the plea of non est factum, as it was not verified. — Sec. 5333, Code-1907.

Heard before Hon. William Jackson. Action by A. J. Letson against J. W. Hall, as surviving partner, Judgment for defendant and plaintiff appeals. The court erred in overruling demurrers to the 2nd plea. — Sec. 3969, Code 1907; 4 Mayf. Dig. 386. The demurrers to the 4th plea as an answer to the 3rd count of the complaint should have been sustained. — Form 33, p. 1201, Code 1907.

Heard before Hon. A. A. Coleman. Assumpsit by tbe Birmingham Water Works Company against F. Alosi. Judgment for plaintiff and defendant appeals. The preponderance of evidence shows that the ordinances of the city of Birmingham were not complied with relative to furnishing an itemized statement of the water used, and the court had the right to examine the evidence and review the findings of the court on it without an exception. — Sec. 5861, Code 1907.

Appear from Coffee Circuit Court. Heard before Hon. H. A. Pearce. Assumpsit by E. H. Arrington against S. N. Rowe. Judgment for plaintiff and defendant appeals. Counsel insist that under the facts in this case the court erred in giving the affirmative charge for the plaintiff, and in declining to give a like charge for defendant. — 23 Cyc. 835; 1 Mayf. p. 607.

Heard before Hon. E. C. Ckowe. Action by the Ben F. Barbour Plumbing & Electric Company against O. W. King on the common counts. From a judgment for plaintiff, defendant appeals. The complaint contains the common counts, and also a count seeking to enforce a lien for work and labor clone and materials furnished in the erection, improvement, and beautification of a certain lot and residence thereon; the lien having been theretofore properly filed.

Birmingham City Court. Heard before Hon. C. C. Nesmith. Assumpsit by S. L. Hoy against C. D. Ritter and others. Judgment by default for the plaintiff and the defendant appeals.

Heard before Hon. D. W. Speake. Edmundson & Co. had execution levied upon certain property to which John E. Freeman' imposed a claim. There was verdict and judgment for the plaintiff, whereupon claimant entered motion for new trial which was refused. There was no evidence to support the verdict, and the court should have ■granted a new trial. — White v. Blair, 95 Ala. 147; Cobb v. Malone, 92 Ala. 630; Shepherd v. Dowling, 103 Ala. 563.

Heard before Hon. W. W. Haralson. Action by Charles Fricke against W. P. Marsh. From a judgment for plaintiff, defendant appeals. The following charges were refused to the appellant: (1) The general affirmative charge. (2) “The court charges the jury that there is no evidence that Marsh’s title to the timber was not good.” (3) Affirmative charge as to the fourth count. (4) Affirmative charge as to the fifth count.

Hear,d before Hon. E. J. Garrison. Action by T. B. Gravette against Tbe Allen Graphite Company, for breach of contract. From a judgment for defendant on bis plea in abatement, plaintiff appeals. Tbe court erred in rendering judgment on tbe plea in abatement in favor of tbe defendant.

Heard before Hon. A. H. Alston. Assumpsit by John A. Darden against J. L. Holloway. Judgment for defendant, and plaintiff appeals. A plaintiff has a right to voluntary non suit at any- time before the jury retires. — Sec. 5353, Code 1907. It cannot be said that the refusal worjrs no injury to the plaintiff because a non suit is not a bar to a subsequent action while a judgment such as here rendered is.

Heard before Hon. A. A. Coleman. Assumpsit by the Clauss Shear Company against the Alabama Barber Supply Company. Judgment for defendant and plaintiff appeals.

Heard before Hou. A. H. Alston. Action by John T. Graden against J. W. Buford. From a judgment for defendant, plaintiff appeals.