Volume 10 — Alabama Appellate Reports

Heard, before Hon. J. J. Curtis. Clifford Howell was convicted of murder in tbe second degree, ánd be appeals. Tbe plea in abatement set up that tbe grand jurors returning tbe indictment were not drawn by the officers designated by law, and that tbe act under which they were drawn was unconstitutional and void. Tbe propositions of evidence are sufficiently stated in tbe opinion.

Heard before Hon. W. W. Pearson. Randolph Tyus was convicted of murder and he appeals. Evidence as to confessions are not admissible before the proof of the corpus delicti. — Calvert v. State, 51 South. 311.

Heard before Hon. W. W. Haralson. John Keef was convicted of manslaughter in the first degree, and he appeals.

Heard before Hon. M. Sollie. Wayne Tillis was convicted of second degree murder, and appeals.

Heard before Hon. C. P. Almon. Gertrude Wood was convicted of manslaughter in tbe first degree, and sbe appeals. The charges referred to are as follows: “(2) I charge you that defendant in this case did not provoke or bring on the fatal difficulty according to the evidence in this case.

Heard before Hon. S. E. Greene. Will Hale was convicted of murder in the second degree, and appeals. Motion to quash the indictment was based on the ground that the grand jury which returned the indictment was not drawn in the manner required by law, the motion pointing out the objections, and also on the ground that the law under which the grand jury was drawn and impaneled is unconstitutional and void.

Heard before Hon. S. L. Brewer. Sim Lewis was adjudged guilty of murder in tbe first degree, and be appeals. Tbe original judgment showed a finding by tbe jury of guilty of murder in tbe first degree, and fixing of a punishment of imprisonment in tbe penitentiary for a term of 20 years. This judgment seems to have been rendered on tbe 24th day of October, 1912.

Heard before Hon. John T. Lackland. Jasper Finney was convicted of murder in the second degree and he appeals. The court was in error in permitting the witness to state that tracks were found near the body, and were such as would be made by a No. 8 shoe. — Busby v. State, 77 Ala. 66. The entire evidence of Randy Dobbs should have been excluded. — Whittaker v. State, 106 Ala. 30; Gassenheimer’s Case, 52 Ala. 313; McCormick’s Case, 102 Ala. 161; Curtis v. State, 118 Ala. 125.

Heard before Hon. M. Sollie. Evaline Tiller was convicted of manslaughter and she appeals. The judgment entry fails to show the presence of defendant at the arraignment and order setting day for trial. — Sylvester v. State, 71 Ala. 17; Burton v. State, 115 Ala. 1; Hurd v. Slate, 116 Ala. 440; Bowen v. State, 119 Ala. 7. Counsel discuss other assignments of error, but without citation of authority.

Appeal .from Dale Circuit Court. Heard before Hon. M. Sollie. Will Hubbard was convicted of manslaughter in the first degree, and he appeals. Hubbard ivas convicted of killing Henry Kemp by shooting him with a gun. It appears from the testimony that the shooting took place in a garden, and followed a dispute between the wives of the two men as to the right of Mrs. Kemp to chop the briars and bushes off a hedgerow.

Heard before Hon. H. A. Pearce. John Parker was convicted of murder in the second degree, and appeals. The dying declarations were not based on sufficient predicate to authorize their admission. — Titus v. State, 117 Ala. 16; Nordan v. State, 143 Ala. 15; Justice v. State, 99 Aia. 180; Kilgore v. State, 74 Ala. 1. Relationship of witnesses is material on the question of credibility. — Ludlow v. State, 156 Ala. 58.

Heard before Hon. A. H. Alston. John Linggold, Jr., alias, etc., was convicted of murder in tbe second degree and he appeals. The motion to quash the venire should have been sustained. — Acts 1909, p. 318. Counsel discuss other matters assigned, but without further citation of authority.

Heard before Hon. H. A. Pearce. James D. Vinson was convicted of murder and lie appeals. Having permitted a part of the conversation had at the time of the killing to • be brought out by the state, defendant was entitled to have the other party, and the court erred in refusing to submit the defendant to show such conversation.

Heard before Hon. H. A. Pearce. Man Frazier was convicted of murder in the second degree and he appeals. The record fails to show any order for a special venire to try the defendant charged with a capital felony.— Sec. 32, Acts 1909, p. 315. The provisions of this section are mandatory, and upon a failure of. the record to set out the proper orders, the judgment will be reversed. — Jackson v. tétate, 171 Ala. 38; Welsh v. tétale, 1 Ala. App. 111.

Heard before Hon. William E. Fort. Henry Anderson was convicted of murder' and he appeals. The record contains no bill of exceptions, and the motion to quash the venire is not reviewable. — McCain Bros. v. Street, 136 Ala. 25.

Heard before Hon. W. W. Pearson. Leander Price was convicted of murder in the second degree, and he appeals. The person killed was Major Posey, and the witness . referred to was the wife of deceased and sister of defendant.

<p>Appeal from Anniston City Court.</p> <p>Heard before Hon. Thomas W. ColeMan, Jr.</p> <p>Robert Belli was convicted of assault with intent to murder and he appeals.</p>

Heard before Hon. D. W. Speake. Ed Lovett was charged with assault with intent to murder, and convicted of assault with a weapon, and he appeals.

Heard before Hon. Gaston Gunter. Robert L. Sears was convicted of an assault with intent to murder, and he appeals. Counsel discusses assignments of error, as to the court’s rulings on the evidence with citation of authority in support thereof, but in view of the opinion it is not deemed necessary to set them out.

Heard before Hon. Bernard Harwood. John Knott was convicted of assault with intent to murder and he appeals. Counsel discuss the evidence and insist that the court was in error in permitting the wife of the assaulted party to testify whether the defendant had ever been over there before to see her, but cite no authority in support of their contention.

<p> Assault and Battery. </p> <p>1. Appeal and Error; Record; Conflict. — Where a statement in a bill of exceptions conflicts with matter properly a part of, and shown by, the record proper, the recitals of the record will control.</p> <p>2. Same; Revieio; Presumption. — In favor of the court’s ruling allowing a witness to testify as to the good character of the party assaulted it will be presumed that the witness testified to facts showing a knowledge thereof, and justifying the refusal to grant the motion to exclude the evidence for which no ground was stated.</p> <p>3. Criminal La/io; Verdict; Recital in Judgment. — The verdict recited in the judgment was prima facie correct, although varying somewhat from the written verdict found in the papers, as regular judgment recitals import verity and are conclusive.</p> <p>4. Same; Surplusage. — The addition of the words “and costs” in a verdict assessing a fine is mere surplusage, not rendering the verdict invalid.</p> <p>5. Eeir Trial; Criminal Case. — The action of the court in overruling a motion for new trial in a criminal case will not he reviewed on appeal.</p> <p>6. Assault and Battery; Evidence; Threats. — Evidence of threats or declarations of hostility made by defendant against the assaulted party about an hour and a half before the assault is admissible to show criminal intent; and also as shedding light as to- who was at fault in provoking the quarrel or bringing on the difficulty.</p> <p>7. Trial; Objections to Evidence; Time. — The litigant cannot speculate on a favorable answer by not objecting to a question, and then move to exclude a responsive answer.</p> <p>_8. Oharge of Court; Directing Verdict. — Where the evidence is conflicting it becomes a question for the jury, and the court cannot properly direct a verdict.</p> <p>Appeal from Morgan Law and Equity Court.</p> <p>Heard before Hon. Thomas W. Wert.</p> <p>Doc McDaniel was convicted of an assault with a weapon and he appeals.</p>

Heard before Hon. W. W. Pearson. . Bartley Crane was convicted of assault and battery, and he appeals. Motion to establish bill of exceptions denied, and the judgment of the lower court affirmed. The court erred in the portion of the oral charge excepted to, such charge being upon the effect of evidence. — Sec. 5362, Code 1907, 62 South. 996; 106 Ala. 23; 64 Ala. 240. Counsel discuss motion to establish bill of exceptions, but without citation of authority.

Heard before Hon. Samuel E. Greene. Robert Payne was charged with murder in the sec: ond degree, and convicted of assault and battery with a weapon, and he appeals.

Heard before Hon. A. E. Gamble. William Beiser was convicted under an indictment charging rape in the first count, arid carnal knowledge of, or abuse in attempting to carnally know, Gertrude Maharko, a girl under the age of 12 years, and he appeals. The facts and exceptions to evidence sufficiently appear from the opinion of the court.

<p>David Pope was convicted of an assault with intent to commit rape, and he appeals.</p> <p>The state failed to make out a case under the indictment. — Jones v. The State, 90 Ala. 628; Sacller v. The State, 12 Tex. Ap. 194. The evidence must show a felonious intent. — Toulet v. The State, 100 Ala.' 72; 32 Eng. Crim. L. E. 524; Pumpliry v. State, 156 Ala. 106. Counsel discusses errors assigned as to rulings on the evidence, hut without further citation of authorities.</p>

Heard before Hon. E. S. Lyman. Louisa Branch was convicted of adultery and she appeals. Charge A' is as follows: The court charges the jury that if any of the state’s witnesses have exhibited prejudice or anger against the defendant, and satisfied you that they have not testified truly, and are not worthy of belief, and you think their testimony should be disre- ' garded you may disregard it altogether.

Heard before Hon. T. L. Sowell. Steve Woods, alias Andrew Jackson, was convicted of an attempt to carnally know a boy, and he appeals. Affirmed in part, and in part reversed and remanded.

Heard before Hon. W. W. Haralson. Dick Boice, alias, etc., was convicted of living in adul- tery, and he appeals. The facts failed to show a living together in such a sense as to constitute adultery. — 1 Mayfield, 21. The court erred in refusing-charge F. — Hall v. The Slate, 88 Ala. 236; 3 Wharton, 2239. Charge G- should have been given. — 1 May., 21.

<p>Appeal from Lee Count y Law and Equity Court.</p> <p>Heard before Hon. Lum Duke.</p> <p>HenryBuchanan was convicted of petit larceny and he appeals.</p>

Heard before Hon. E. S. Lyman. James Murphey was convicted of stealing an anvil, and he appeals. The evidence sufficiently appears. The charge requested was as follows: “Unless the jury believe from tlie evidence defendant was in possssion of.

Heard before Hon. T. L. Boiujm. Mitchell Truett was convicted of petit larceny, and he appeals. The witness Alex Johnson testified: ' That certain articles of jewelry were taken from his house about December 26, 1911, among them a gold shirt button, valued at abot $2.

Heard before Hon.. E. S. Lyman. Furman Stinson was convicted of petit larceny, and appeals.

Heard before Hon. Armstead Brown. Otto T. Barr was convicted of embezzlement and he appeals. There was a material variance between the indictment and the proof in that the indictment charged the offense denounced by section 6828, Code 1907, while the evidence showed, if it showed any offense at all, the offense denounced by section 6831, Code 1907. — Pulliam v. State, 78 Ala. 31; Watson v. State, 70 Ala. 13; Willis v. State, 134 Ala. 429; Walicer v. State, 117 Ala. 42.

Heard before Hon. S. L. Brewer. Perry Freeman was convicted of embezzlement, and he appeals. As to the three essential elements constituting embezzlement see Pullam v. State, 78 Ala. 31.

Heard before Hon. C. P. Almon. Walter Newsum was convicted of forgery, and he appeals.

Heard before Hon. Armstead Brown. Joe ft. Dudley, Jr., and others were convicted of forgery of an application for insurance on the life of a third person and they appeal.

Pike Circuit Court. Heard before Hon. H. A. Pearce. Ed Cheshire was convicted of obtaining money under false pretences, and he appeals. Charge 1 is the general affirmative charge.

Heard before Hon. A. H. Alston. Marion Courtney was convicted of selling, removing or disposing of certain crops with intent to binder, delay or defraud a prior mortgagee, and be appeals.

Heard before Hon. W. W. Peakson. George Jones was convicted of knowingly selling or exchanging a mule subject to the disease of choking, and he appeals. The demurrer to the indictment should have been sustained. — Wester v. State, 147 Ala. 122; Sec. 6239, Code 1907. The indictment should -allege all the elements of the offense.— Giles v. State, 89 Ala. 50; Bloch v. State, 66 Ala. 493.

Heard before Hon. E. T. Albritton. P. O. Wilson was convicted of violating the prohibition law, and he appeals. The lower court erred in refusing to grant defendant a trial by jury. — Sec. 5, art. 1, sec. 11, art. 1, sec. 45, art. 4, Constitution; 12 Enc. P. & P. 241; Local Acts 1911, 327, sec. 12. On these same authorities the court erred in finding that the jury had been waived.

<p>Appeal from Andalusia City Court.</p> <p>Heard before Hon. E. T. Albkitton.</p> <p>P. O. Wilson was convicted of violating the prohibition law, and he appeals.</p> <p>The special findings of fact made by the court was that defendant, P. O. Wilson, at a time during the latter part of the year 1912, the indictment being filed February 13, 1913, sold to J. G. Foxworth a half pint of whisky for which Foxworth paid him the sum of 50 cents, and that such sale occurred in Covington county, and within 12 months next before the finding of the indictment, and that the general character of defendant in the community was good.</p> <p>The lower court erred in refusing to grant defendant a trial by jury. — Sec. 5, art. 1; sec. 11, art. 1; sec. 45, art. 4, Constitution; 12 Ene. P.- & P. 241; Local Acts 1911, p. 327, sec. 12. On these same authorities the court erred in finding that the jury had been waived. The Fuller Bill does not embrace in its title the matter of trial by jury as to its criminal features, and is therefore violative of section 45, Constitution 1911.</p> <p>Appellant was indicted for an offense unknown to the common and statutory laws existing at.the time of the adoption of the Constitution of 1901, and hence, was not entitled to call to his aid section 11 of such Constitution.^ — Tims v. State, 26 Ala. 165; Boring v. Williams, 17 Ala. 510; Thomas v. Bibb, 44 Ala. 721. Unless a jury is demanded within five days it is waived. — Sec. 32, Acts 1909, p. 327. The court has declared the Fuller Bill constitutional. — Alford v. State, ex rel., 170 Ala. 178.</p>

Heard before Hon. S. L. Brewer. Tom Willingham was convicted of violating the prohibition law and he appeals. The court was not in error in requiring defendant on cross-examination to answer as to his prior conviction for violating the prohibition law, as it tended to show the character of the sale charged. — Pearce v. State, 40 Ala. 720. It was also admissible to show intent.- — Ingram v. State, 89 Ala. 249 ; Pike v. State, 51 S. W. 395.

<p> Violating Prohibition Lem. </p> <p>1. Witnesses; Bias; Examination. — Where the witness was the complaining' party and a witness against the defendant, defendant was entitled to show that after he had the witness prosecuted for disturbing religious worship, witness had defendant arrested in this case, as such matter tended to show bias against the defendant.</p> <p>2. Same. — It was competent on cross-examination of the state’s witness to show that defendant had protested against his daughter living in the same house with the witness, and that for this reason, the witness entertained had feelings towards accused.</p> <p>S. Same. — In a criminal case any fact may he elicited on the cross-examination which tends to show a witness’s hostility towards the party against whom he testifies.</p>

Heard before Hon. A. E. Gamble. Plum Coleman was convicted of violating the prohibition laws, and he appeals. A careful reading of the case of State ex rel. Wild v. Coleman, 61 South. 20, will disclose that defendant was clearly entitled to have given for 'him the general affirmative charge. The claim affidavit was clearly admissible as any other written statement would have been admissible if against interest. — Oakley v. State, 33 South. 23.

Heard before Hon. M. Sollie. Sarah Captain was convicted of violating the prohibition law and she appeals. No statement was filed by the solicitor of the cause of complaint, and there was no waiver of filing thereof. — Moss v. State, 42 Ala. 546; Spicer v. State, 69 Ala. 163; McGhee v. State, 22 South. 113; sec. 6730, Code 1907; Haynes v. State, 5 Ala. App. 167. Counsel discusses other assignments of error, but Avithout citation of authority.

Heard before Hon. A. H. Alston. Will Cravey was convicted of violating the prohibition laws and he appeals. The state having failed to connect the defendant with the beer, and having failed to show that the defendant had any connection with or control over the building in which it was found, the court erred in permitting the sheriff to testify that he found beer there, and in what quantities. Patterson v. The State, 62 South. 1023.

Heard before Hon. A. H. Alston. John D. Grider was convicted of violating tbe prohibition laws and be appeals. Tbe state having failed to connect tbe defendant with tbe beer, and. having failed to show that tbe defendant bad any connection with or .control over tbe building in which it was found, tbe court erred in permitting tbe sheriff to testify that be found beer there, and in what quantities. Patterson v. The State, 62 South. 1023.

Heard before Hon. Thomas W. Wert. J. Y. Gustin was convicted of violating the prohibition law, and he appeals.

Heard before Hon. M. Sollie. Will Malone was convicted of violating the prohibition law, and he appeals. Defendant was entitled'to have his absent witnesses, and the court erred in putting him to trial without them, over his seasonable objection. — Sec. 6, Constitution 1901.

Heard before Hon. B. M. Miller. Gus Moore was convicted of violating the prohibition law and he appeals. No brief reached the Reporter. The court cannot pass upon the question asked the witness Latmore, as the answer does not appear. Counsel discusses other assignments of error, but without citation of authority.

Heard before Hon. T. L. Sowell. Leroy Busby was convicted of violating the prohibition law, and appeals.

Heard before Hon. J. C. Kumpe, Special Judge. Street Slaten was convicted of violating the prohibition law, and he appeals. The facts are sufficiently indicated in the opinion.

Heard before Hon. M. Sollie. Anna Lee was convicted of unlawfully storing or having in her possession intoxicating liquors or beverages, contrary to law, and she appeals. No statement was filed by the solicitor of the cause of complaint, and there was no waiver of a filing thereof. — Moss v. State, 42 Ala. 546; Spicer v. State, 69 Ala. 163; McGhee v. State, 22 South. 113; sec. 6730, Code 1907; Haynes v. State, 5 Ala. App. 167.

Heard before Hon. D. W. Speaks. Ed. M. Spelce was convicted of violating tbe prohibition law, and be appeals. . Tbe court met in regular term on tbe third Monday in November, 1913.

Heard before Hon. H. A. Pearce. J. T. Walker was convicted of violating the prohibition law, and he appeals. Counsel discuss the matters assigned as error, but without citation of authority. A predicate must be laid to show contradictory statements of witness. — McDaniel v. State, 166 Ala. 7. No abuse of discretion is shoivn in the cross-examination of the witness Watts. — Thompson v. State, 100 Alá. 70; Amos v. State, 96 Ala. 120.

Heard before Hon. W. W. Pearson. Bob Conner was convicted of violating the prohibition law, and he appeals. Reversed and remanded. The indictment charges that defendant offered for sale, kept for sale, or otherwise disposed of, spirituous, or malt liquors, contrary to law. The state introduced four or more witnesses. Charge 6 appears in the dissenting opinion.

Heard before Hon. H. A. Pearce. Joseph E. Thames was convicted of violating the prohibition law and he appeals. The court was in error in the admission of evidence both as to the stolen chickens, and the fact that they were carried to defendants in exchange for whisky, especially in view of the fact that it was shown that on another occasion one of the witnesses bought a quart of whisky and paid money for it.; — Askew v. State, 60 South. 455.

Heard before Hon. W. W. Pearson. Mike Lorena was convicted of violating the prohibition law, and he appeals. The evidence tended to show that, in the depot of McArthur Bros., six barrels containing liquid testified by some to be whisky was found consigned to Mike Lorena; that the sheriff went np with a search warrant, seized the barrels, and arrested defendant; and that defendant made no claim to the barrels.

Heard before Hon. H. A. Pearce. Pomp Burton was convicted of violating the prohibition law and he appeals.

Heard before Hon. Thomas W. Wekt. Jim Kirk was convicted of keeping an unlawful drinking place, and be appeals. Tbe prosecution was commenced by affidavit made by one H. H. Wrigbt on February 6, 1913, charging the commission of the offense of maintaining an unlawful drinking place by one Jim Kirk, alias Scrap.

Heard before Hon. M. Sollie. Willis Toney was convicted of violating the prohibition laws, and he appeals. The defendant set np by proper plea that he had been convicted in the municipal court of the town of Clayton on charges preferred against him by said town for violating the prohibition laws, and that the violation for which he was convicted before the recorder of said town is the same identical act for which the state is now charging him.

<p>Appeal from Morgan Law and Equity Court.</p> <p>Heard before Hon. Thomas W. Wert.</p> <p>Will Lynn was convicted of violating the prohibition law, and he appeals.</p>

Heard before Hon. Thomas W. Wert. Henry Pappenberg was convicted of transporting prohibited liquors along the public highway for another, and he appeals. The demurrer to the affidavit or complaint should have been sustained.— Comer v. State, 62 Ala. 320; Dickey v. State, 68 Ala-508 ; Napier v. State, 50 Ala. 169; Glass v. State, 30 Ala, 529; Mills v. State, 20 Ala. 86; 7 Words & Phrases, 6684; 38 Am. Rep. 282; 2 Am.

Heard before Hon. Hugh D. Merrill. Newt Angle was convicted of appearing in a public place while intoxicated, and he appeals. The indictment charges in the first count that Newt Angle, while intoxicated or drunk, did appear in a public place, to wit, within the curtilage of the private residence of Marcellus Payne, where one or more persons were present, and manifested his drunken condition by boisterous and indecent conduct, or loud and profane discourse.

Heard before Hou. W. W. Pearson. Dan Golden was convicted for failure to worlc the public roads, and he appeals.

Heard before Hon. M. Sollie. Will Holland was convicted of arson and he appeals. Counsel discuss the appeal and the assignments of error based thereon, together with citation of authority, but in view of the opinion it is not deemed necessary to here set them out. Counsel insist that on the record there is nothing to support the appeal, and that it should be dismissed.

Heard before Hon. William E. Fort. Louis Brandes was convicted of keeping a gaming table, and he appeals.

Heard before Hon. Armistead Brown. Joe F. MeDade was convicted of maliciously or wantonly killing a horse, and he appeals.

Heard before Hon. W. W. Pearson. George McQueen was convicted of trespass to realty and lie appeals. .

. Heard before Hon. Thomas'W. Wert. Vest Wile'y was convicted of using abusive, insulting, or obscene language in the presence, or within the hearings Tl^record shows a demurrer sustained to the affidavit' but does not show either the affidavit or the demurrer. The record further shows an amended affidavit; the amendment being made before the judge of the law and equity court.

Heard, before Hou. A. E. Gamble. Jule Ellis Avas convicted of disturbing religious wor- ' ship, and he appeals. A summary of the evidence appears in the opinion.

Heard before Hon. W. W. Haralson. Jim Dodson was convicted of disturbing religious worship, and he appeals. The witness Stearnes was permitted to testify that he heard some talking in the church, on the right-hand side as you go in, and that “I think it was right there at him.” The defendant moved to exclude the part quoted.

’ Heard before Hon. Gaston Gunter. Aaron Howard was convicted of a felony, and applied by habeas corpus for bail. From an order granting bail the state appeals.

Heard before Hon. C. B. Smith. Action by Ida Bonham against the J. T. Camp Transfer & Warehouse Company for damages for conversion. From a judgment for plaintiff, defendant appeals. Affirmed.

Heard before Hon. John H. Miller. Action by Mrs. Eula V. Comer against the Birmingham Railway, Light & Power Company, for damages to her as a passenger. Judgment for plaintiff in the sum of $500 and defendant appeals. A remittitur of $300 from said amount is ordered by the court, and the cause is affirmed, otherwise it was reversed and remanded.

Heard before Hon. J. C. B. Gwin. Action by Thomas E. Mason against the Louisville & Nashville Railroad Company for damages for ejection. Judgment for plaintiff, and defendant appeals. Affirmed.

Heard before Hon. J. H. Miller. Action by R. C. Pratt and another against the Birmingham Railway, Light & Power Company for failure to furnish gas. Judgment for plaintiff, and defendant appeals.

Heard before Hon. E. C. Ckowe. Action by Hester Williams, individually, and as next friend to Mamie and Luke Williams, against tbe Birmingham Railway, Light & Power Company, for'damages for carrying them as passengers beyond their destination. Judgment for plaintiff, and defendant appeals.

Heard before Hon. H. A. Pearce. Action by C. G. Campbell against the Central' of Georgia Railway Company for damages for injury while a passenger. Judgment for plaintiff, and defendant appeals.

Heard before Hon. J. C. Gwin. Action by J. T. Crawford against the Alabama Terminal Railroad Company for damages for maintaining a structure on the block and across the street on which his residence was situated. Judgment for plaintiff and defendant appeals.

Clair Circuit Court. Heard before Hon. J. E. Blackwood. Action by A. D. Hudgins against the Seaboard Air Line Railway Company for damages for injury to person and property suffered by a collision at a crossing. Judgment for plaintiff and defendant appeals. Defendant was entitled to the affirmative charge on count 2. — Peters v. 8a. By., 135 Ala. 503; C. of Ga. v. Foshee, 125 Ala. 199; G. of Ga. v. Barnett, 151 Ala. 407.

. Heard before Hon. J. C. B. Gwin. Action by William Burns against the Jefferson Fertilizer Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Heard before Hon. Hitgii D. Merrill. Action by Jesse Brazier against the Western Union Telegraph Company, for damages for delay in delivery of a telegram. Judgment for plaintiff and defendant appeals. The reasonableness of the provision set out in plea 5, has been passed on affirmatively time and again by this court.— Henderson v. W. ü. T. Go., 89 Ala. 510; Harris v. W. U. T. Go., 121 Ala. 519; McGhee v. Wes. Union, 53 South. 205.

Heard before Hon. W. W. Haralson. Action by T. E. Parkes against the Southern Railway Company for damages for killing a hog. Judgment for plaintiff and defendant appeals. The defendant was' entitled to the general charge on account of the variance. — Ashman v. State, 63 South. 754'; G. of Ga. v. Simmons, 43 South. 731.

Heard before Hon. John T. Lackland. Action by TV. J. Morris against the Tombigbee Valley Railroad Company, for damages for killing a mare. Judgment for plaintiff and defendant appeals.

Heard before Hon. James E. Blackwood. Action by J. L. Cbambless and another against the Southern Railway Company for killing a horse. Judgment for plaintiffs and defendant appeals. No brief reached the Reporter. No brief reached the Reporter.

Heard before Hou. J. J. Curtis. Action by B. A. Shumate against J. A. Ballanger for damage to plaintiff’s person and buggy in a collision with defendant’s carriage. Judgment for plaintiff and defendant appeals. The demurrers to count A should have been sustained. Counsel discusses other assignments of error, but without citation of authority. Count A was withdrawn from the jury, and therefore, any error Avas rendered harmless to appellant.

Heard, before Hon. William M. Walker. Action by Mrs. Lillie Boocldioldt against Orr & Lanning. From a judgment for plaintiff, defendants appeal. The third count was as follows: Plaintiff claims of defendant the sum of $500 as damages, for that, to wit, heretofore, on, to wit, the 17th day of October, 1911, plaintiff was riding along a public highway below Powderly, in Jefferson county, Alabama, going to the funeral of, to wit, one Mrs. Fries.

Heard before Hon. C. B. Smith. Action by J. J. Patrick against the Seaboard Air Line Railway Company, for damages for failure to transport him as a passenger. Judgment for plaintiff and defendant appeals. The facts sufficiently appear from the opinion.

Heard before Hon. E. C. Crowe. Action by Julius Milbrat against the Continental Gin Company. From a judgment for plaintiff, defendant appeals. The pleadings and evidence sufficiently appear from the opinion of the court. The following charges tvere refused to defendant: (3) Affirmative charge as to the fifth count.

Heard before 1-Ion. C. B. Smith. Action by Mrs. Maud Peyton against Dr. F. P. Lewis. Judgment for plaintiff, and from an order granting a new trial and setting aside the verdict, plaintiff appeals. The specifications of grounds in a motion for new trial is a waiver of others. ■ — McCarver v. Jiersberg, 135 Ala. 549; Bank of Dothan v. Wilks, 132 Ala. 573; 26 Cyc. 949.

■ Appeal from Coosa Circuit Court. Heard before Hon. S. L. Brewer. Detinue by Tom Burke against Jenks Davis to recover a gray mare.

Heard before Hon. H. A. Sharpe. Certiorari by Von. L. Thompson against A. C. Foster. Judgment for the petitioner, and defendant appeals.

Heard before Hon. Ed. T. Albritton. Complaint by tbe city of Florala against Mrs. T. J. . Roney for violating a municipal ordinance. From a judgment of conviction tbe defendant appeals. The court does not take judicial knowledge of tbe substance or terms of tbe ordinance referred to in tbe complaint. — Goldthwaite v. Montgomery, 50 Ala. 86; Brown v. Mayer, 23 Ala. 722.

Heard before Hon. J. C. B. Gwin. Action by Henry Perry against the Tennessee, Coal, Iron & Railroad Company, to recover wages under an alleged contract. Judgment for plaintiff and defendant appeals. Counsel discuss the casé on its merits, with citation of authority, but in view of the opinion it is not deemed necessary to here set them out.

Heard before Hou. Bernard Harwood. Action by Pickens county against L. C. Hudgins, judge of probate, and his bondsmen for taxes, alleged to have been collected by the judge of probate upon mortgages and not paid into the county treasury.

Appear from Birmingham City Court. Heard before Hon. H. A. Sharpe. Action by Nora Barnett against the United Brothers of Friendship and Sisters of Mysterious Ten, to recover the beneficial interest in an insurance policy. Judgment- for defendant and plaintiff appeals. Want of insurable interest in the life of another renders the policy void.— U. O. O. F. v. Hill, 57 South. 142; Troy v. London, 39 South. 713; Culver v. Dryer, 129 Ala. 602; Spier v. Sykes, 112 Ala. 584; Ala.

Heard, before Hon. John T. Lackland. Action by the Planters Chemical & Oil Company against G. W. Costillow and others, on a note for the price of fertilizer. Judgment for defendant and plaintiff appeals. ' The court erred in refusing to permit the certificate of the commission showing license issued to plaintiff to be admitted in evidence. — Sec. 26, Code 1907.

Heard before Hon. J. E. Blackwood. Assumpsit by Annie E. Bass against Eliza C. Vaughn. Judgment for plaintiff and defendant appeals. The appellant was not liable to the plaintiff except for the $3 due her individually, and the note executed for the balance of the account which ivas due husband of plaintiff from husband of appellant was without consideration as to appellant. — Vaughn v. Maul, 45 Ala. 134; Healherington v. Mixon, 46 Ala. 297.

Heard before Hon. D. W. Speake. . Assumpsit by S. W. Irwin against the Louisville & Nashville Railroad Company on a written order or assignment of the wages of one Willie Bankston. The railroad company deposited the amount due Bankston in court, and suggested S.. M. Winton as the claimant of the fund, who was substituted as party defendant upon his claiming said fund. Judgment for plaintiff against substituted defendant, and he appeals.

Heard before Hon. James E. Blackwood. Action by the Arabian Toilet Goods Company against the Aachen & Munich F. I. Company, on a fire policy. Judgment for plaintiff and defendant 'appeals. The demurrers attempt to set up matter in reply to the pleas which could properly come only by way of replication. — Trustees v. Winston, 5 S. & P. 17. Counsel discuss the assignments of error relative to evidence, but without citation of authority.

Heard before Hon. C. B. Smith. Assumpsit by tbe B. F. Barbour Plumbing & Electric Company against Fannie Marx and another. There was judgment of dismissal for want of prosecution, and on motion such judgment was set aside, and the cause restored to the docket for trial, and defendants appeal.

Heard before Hon. H. A. Si-iarpe. Action by H. Tv. Robertson as administrator against District Grand Lodge No. 23, upon a benefit insurance certificate. Demurrers were overruled to certain pleas, and plaintiff took a nonsuit with bill of exceptions and appeals. The agreement was a nudum pactum, and the payment of $10 on the trust voucher cannot be regarded as a profitable consideration. — Head v. Baldwin, 83 Ala. 134; Rutledge v. Townsen, 38 Ala. 706.

Heard.before Hon. C. C. Nesmith. C. D. Ebersole had judgment against the Standard Grocery Company and garnishment thereon against W. H. Fruitticher. From a judgment against garnishee for failure to answer, he appeals. It is error to render a conditional judgment against garnishee wlio has a written answer on file.— Sun I. Go. v. Doster-Northington Drug Go., 164 Ala. 572.

Heard before Hon. Gaston Gunter. Action in assumpsit by T. J. Thrower against the Monogram Hardwood Company. From a judgment for plaintiff, defendant appeals. The witness Wilkinson testified as to hearing the conversation between Mr. Thrower and Mr. May, and that Mr'. Davidson was also present, both being representatives of the defendant. Witness was then asked to state the conversation with reference to this car (the suit being over the price of a car load of ash timber).

Heard before Hon. J. C. B. Gwin. Assumpsit by H. M. Cash against J. J. Smith-Judgment- for defendant, and the court declining to set. aside the verdict and judgment, plaintiff appeals'- In face of the oral chrage of the court that if they believed from the evidence that defendant signed the note sued on, they should find for plaintiff, it was the duty of the court to set aside the verdict rendered by the jury for defendant. — Cobb v. Malone, 92 Ala. 630; Shepherd & Co v.…

Heard before Hon. M. Sollie. Assumpsit by Lizzie Reynolds against C. G. Reynolds. Judgment for plaintiff and defendant appeals.

Heard before Hon. C. P. Almon. Action by the Chattanooga Brewing Company against J. A. Crosswhite in account and account stated. Judgment for plaintiff and defendant appeals. The purported exhibits under the circumstances could not properly be regarded as a part of the depositions and were not admissible in evidence for any purpose. — Apfel v. Grane, 83 Ala. 312.

Heard before Hon. H. A. Sharpe. Action by J. W. Stephenson doing business, etc.,, against the Jebeles & Colias Confectionery Company,, for breach of contract for the sale of flour. From a judgment awarding insufficient damages, plaintiff appeals. The proper measure of damages was set up in the complaint as amended, and established by the testimony. — Jebeles, etc., v. Stephenson, 6 Ala. App. 103.

Heard before Hon. Thomas W. Wert. Assumpsit by B. Crawford against L. E. Easter. Judgment by default for plaintiff, and the court having-denied defendant’s motion to set aside such judgment, defendant appeals.

Heard before Hon. Bernard Harwood. Assumpsit by B. T. Clark against J. E. Morton and others. From a judgment for plaintiff, defendants appeal.

Heard before Hon. Gaston Gunter. Action by Nancy E. Goodman against the Metropolitan Life Insurance Company on a policy issued by it on the life of Lewis M. Goodman in which she was named as beneficiary. Judgment for plaintiff and defendant appeals.

Heard before Hon. C. P. Almon. Assumpsit by tbe Florence Machine & Railroad Supply Company against the International Agricultural Corporation. Judgment for defendant, and plaintiff appeals.

Heard before Hon. H. A. Sharpe. Action by J. B. Moor against the Harris Transfer & Warehouse Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Cecil Browne. Action by G. T. MeElderry against T. W. Reid' in assumpsit, which was tried with an assumpsit action by Reid against MeElderry by' agreement and so submitted here. From a judgment for MeElderry Reid appeals. Plea No. 3, upon which issue was joined is in the nature of a plea of set-off, and was proper in this action, as there was mutuality of debts or demands. — Drennen v. Gilmore, 132 Ala. 248.

Heard before Hon. H. A. Pearce. Assumpsit by J. A. Glover against the Town of Coffee Springs and others. From a judgment for plaintiff, defendants appeal. The suit is against J. C. Nelms and others named and the town of Coffee Springs, a municipal corporation, for the balance due plaintiff under a contract to teach school.

Heard before Hon. J. H. Ballentine. Assumpsit by the Huntsville Grocery Company against Y. M. Johnson, with garnishment in aid thereof to the Henderson National Bank. From a judgment condemning the money there.on deposit, the defendant appeals. The inventory was sufficient. — Secs. 4186, 4178, Code 1907. The motion did not even approach the dignity of a pleading.- — Meyer v. Bloch, 139 Ala.. 178.

Heard before Hon. E. S. Lyman. Assumpsit by Goldberg & Lewis against J. H. Stone. Judgment for defendant and plaintiff appeals. The question presented is whether or not the payee of a negotiable instrument can be a holder in due course as against the surety.

Heard before Hon. Jopin H. Miller. Action by E. L. Higdon, as sheriff, against the warrant Warehouse Company. Judgment for defendant, and plaintiff appeals.

C. W. Ferguson. Action by ¡Rufus P. Bryant against the Avondale Mills. From a judgment for plaintiff for f1,000, defendant appeals.

Clair Circuit Court. Heard before Hon. James E. Blackwood. Action by Rosa Norris against J. H. Walker & Co. and another. From a judgment for plaintiff, defendants appeal. The judgment entry and addition is as follows: “On this, the 22d day of November, 1911, come the parties by attorneys.

Extension to original opinion and For original opinion, see 8 Ala. App. 610, 62 South. 459. The cases cited by appellee’s counsel, referred to in opinion, are the following: L. & N. R. R. (Jo. v. Banks, 132 Ala. 471, 31 South. 573; So. Railway v. Bunt, 131 Ala. 594, 595, 32 South. 507; Ala.

Heard before Hon. C. B. Bmiti-i. Action by Alfred Buchanan against the Birmingham Ledger Company for damages for unlawful imprisonment. Judgment for plaintiff, and defendant appeals. • The facts sufficiently appear from the opinion.

Heard before Hon. C. P. Almon. Action by Granville R. Lawler against George W. Grissom, for malicious prosecution. Judgment for plaintiff and defendant appeals. The affidavit was not admissible in evidence, nor was the warrant —Secs. 6285, 6704 and 7588, Code 1907; Brown v. Btate, 109 Ala. 86. The complaint did not claim attorney’s fees as special damages, and hence, they were not recoverable. — Hawkins v. Gollins, 5 Ala. App. 522; Tutwiler G. & G. Go. v. Tuvin, 158 Ala. 657.

Heard before Hon. Charles A. Senn. Action by Vivian C. Lewis against F. B. Fowlkes for malicious prosecution and false imprisonment. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Heard before Hon. C. P. Almon. Action- by J. C. Williams against C. B. Hyde for damages for deceit in tbe sale of a borse. Judgment for defendant and plaintiff appeals. This is an action of tort, and was properly brought in Red Bay beat in Franklin county where the tort ivas committed. Secs. 4648 and 6110, Code 1907; Boge v. Iiersberg, 141 Ala. 489.

Bessemer City Court. Heard before Hon. J. C. B. Gwin. Action by Mrs. S. J. Whaley against the city of Bessemer for damages for injuries received because of a defect in a sidewalk. Judgment for. plaintiff and defendant appeals. Reversed and remanded.

Heard, before Hon. John T. Lackland. Action by J. N. Cooper against the Southern RailAvay, for failure to deliver freight. Judgment for plaintiff and defendant appeals. Reversed and remanded. The burden was on defendant to prove its plea of set off, and it should have been, permitted to introduce evidence to support it. — Brigham v. Carlisle, 78 Ala. 247; McWilliams v. Phillips, 71 Ala. 82. Plaintiff is entitled to indemnity and nothing more. — Rose v. Bozeman, 41 Ala. 678.

' Hea.rd before Hon. J. C. B. Gwin. Action by Alfred Cockrell against the Birmingham Railway, Light & Power Company, for damages for injury while a passenger. Judgment for plaintiff and defendant appeals. The common carrier of passengers does not owe to its passengers the duty to exercise the highest degree of care. — Gadsden & Attalla U. Ry. v. Gausler, 97 Ala. 235; B. R. L. S P. Go. v. Barrett, 58 South. 760; B. R. L. & P. Go. v: Barrett, 60 South. 262; Sou. Ry.

Heard before Hon. M. Sollie. Action by T. M. Courson against the Central of Georgia Railway Company for damages for loss of baggage. Judgment for plaintiff and defendant appeals. The court erred in refusing charge 1. — C. of G-. v. Foster, 175 Ala. 313; 10 Cush. 506 ; 33 A. & E. R. R. cases, 247; 34 Am. Rep. 379; 60 L. R. A. 386; Dec. Dig. sec. 39(1392. On these authorities the court below erred in refusing to give charges 3, 4, 5 and 8. NO' brief reached the Reporter.

Clair Circuit Court. Heard before Hon. J. E. Blackwood. Action by A. E. Hudgins against the Seaboard Air Line Railway Coippany for damages for injury at a crossing. Judgment for plaintiff and defendant appeals. The court should have given the affirmative charge as to the second count as it was completely answered by defendant’s second and third plea. — Peters v. Sou. Ry. Co., 135 Ala. 533; G. of Ca Ry. Co. v. Foshee, 123 Ala. 199; C. of C. Ry. Co. v. Barnett, 151 Ala. 407.

Heard, before Hon. W. W. Pearson. Action by James L. Harwell against the Atlantic Coast Line Railroad Company, for damages for maintaining a private nuisance. From a judgment for plaintiff, defendant appeals.

Heard before Hon. Saffold Berney. Action by C. H. Minge & Co. against Barrett Brothers Shipping Company in detinue for a barge. Judgment for defendarit, and plaintiff appeals.

Heard before Hon. W. W. Pearson. Action by G-. P. Nolen against E. M. Peters in Detinue and Assumpsit. Judgment for plaintiff and from an order denying a motion to amend the judgment nunc pro tunc the defendant appeals.

Heard before Hon. J. C. B. Gwin. Detinue by Sam Romano against Taylor Stevens and another. Judgment for plaintiff, and defendants ap- peals. The mortgage to the bank was a prior lien and entitled to be satisfied first. — Williams v. White, 51 South. 559. The second mortgagee had only an equitable title. — Draper v. Walker, 13 South. 995. The payment to the bank satisfied its mortgage and such payment is a defense here.— Vortei' v. Monarch, 27 L. R. A. (N. S.) 111.

Heard before Hon. Htjgi-i D. Merrill. U. S. Ineichen was convicted of violating a municipal ordinance of the city of Anniston and he appeals. Under the evidence in this case the defendant was protected by the interstate commerce law and was not subject to license. —In re A.gnew, Am. Anno. Cases, 1912, see page 76; State v. Echenrode, 148 Iowa, 173; 131 N. W. 817; 170 Fed. 449; 104 Am. St. Rep. 283; 181 Fed. 551; 61 N. W. 1001.

Heard before Hon. James A. Bilbro. Ross Cooper was convicted of violating a prohibition ordinance of the city of Gadsden and he appeals.

Heard before Hon. H. A. Pearce. Assumpsit by J. E. Adams against the Choctawhatchie Hardwood Lumber Company, begun by attachment which was levied October 23, 1912, upon certain property therein described. On the same day the defendant in attachment executed bond for the forthcoming of the property levied on and it was released to him. On April 2, 1913, judgment by default was rendered and the property adjudged subject to the writ from which judgment the defendant appeals.

Gaston Gunter. Action by the Pittsburg Life & Trust Company against Cyrus B. Brown, as Insurance Commissioner, to recover certain money paid under protest. Judgment for plaintiff and defendant appeals.

Heard before Hon. John H. Disque. Claim suit between J. B. McCormack and Mrs. T. C. Malone. From a judgment dismissing claimants certiorari and taxing him with the costs she appealed. Appeal may be taken from judgment on motion to retax costs. Section 3684 Code 1907 as amended; Acts 1911, page 9.

Heard before Hon. W. W. Pearson. Assumpsit by Guy Higgins against B. E. Jones and another. Judgment for plaintiff and defendant appeals. Submitted on motion to dismiss the appeal, motion to establish a bill of exceptions and on the merits. Counsel Discuss the merits of the case and insist that under the evidence there was no middle ground and the complainants were either entitled to all that they sued for or the defendants were entitled to a judgment.

S. L. Brewer. Action by Elmore & Brame doing business, etc., against the Louisville & Nashville Railroad Company to recover interest on a claim which had been paid. Judgment for plaintiff and defendant appeals. A brief statement of facts is as follows: On December 8, 1911, the plaintiffs were the owners of thirty bales of cotton which were entrusted to the Louisville & Nashville Rairoad Company for shipment and on said date the cotton was burned.

Heard before Hon. W. W. Haralson. Assumpsit by the Lyles-Black Company against L. C. Alldredge. Judgment for defendant, and plaintiff appeals. There was no dispute as to any items of the counts or credits except the last payment of $250, which defendant claimed to have paid to the salesman of plaintiff; defendant contending that it was paid to Mays, the salesman, and no receipt taken. The other items seem to have been settled by checks or by notes and paid through the bank.

Heard before Hon. D. W. Speaks. Assumpsit by T. S. Stroup against J. W. Bynum. Judgment for defendant and defendant appeals.

Heard before Hon. Hugh D. Merrill. Action by J. L. Isbell, clerk of the circuit court, against Shelby county, to collect fees for éx officio services, as such clerk. Judgment for defendant and plaintiff appeals. The clerk was entitled to ex officio services under the local acts 1901, page 2024, unless said act was repealed impliedly by acts 1907, page 583, now section 3715, Code 1907.

Heard before Hon. H. A. Si-iarpe. Action by Beatrice Curry against the Prudential Casualty Co. upon an accident insurance certificate. Judgment for plaintiff and defendant appeals. There is but one question presented by this appeal, and that is did Mc-Elreath, the insured come to his death by accident, or violent and accidental means.

Heard before Hou. W. W. Haralson. Assumpsit by the Georgia Fire Insurance Company against J. W. Warren and M. L. Hale. From a judgment for plaintiff defendant Warren appeals. Counsel discuss the appeal on its merits, but in view of the opinion it is not deemed necessary to set out the discussion and authorities.

Heard before Hon. C. P. Almon. John Grimes was convicted of violating an ordinance of the city of Florence, and he appeals. The court improperly limited the cross-examination of the witness for the city, and should have permitted the questions to which objection was sustained. — 2 Wigmore sec. 969, 943 and 948.

Heard before Hon. T. L. Sowell. The state seized certain liquors, to which the Southern Express Company propounded its claim. From a judgment denying the claim and condemning the liquors the Southern Express Company appeals. No brief' reached the Reporter.

Heard before Hon. J. H. Ballentine. Action by Willie F. Armstrong against Ed. Ikard, . for the penalty for failure to satisfy the record of a mortgage. Judgment for plaintiff and defendant appeals. There was no ac cord and satisfaction shown, and without it there was no payment of the mortgage debt, and the court erred in failing to so instruct the jury. — Scott v. Rawls, 159 Ala. 399; Rand Lumber Go. v. Rail, 147 Ala. 561; Rodges v. Tenn. Imp.