Volume 11 — Alabama Appellate Reports

Heard before Hon. L>. W. Speaks. Tol Turner was convicted of murder in the second , degree, and he appeals. The exceptions to evidence sufficiently appear in the opinion.

Heard before Hon. John T. Lackland. James R. Bailey was convicted of manslaughter in the first degree, and appeals. The person killed was John Johnson. The exceptions to evidence sufficiently appear in the opinion.

Houston Circuit Court. Heard before Hon. H. A. Pearce. William Phillips was convicted of manslaughter in the first degree, and he appeals. The following charges were refused to defendant: (2) It is the duty of each juror to decide the issue for himself, and, if there is any juror who has a reasonable doubt of the guilt of defendant, it is his duty to stand by his convictions, and he should not yield simply because every other juror may disagree with him.

Heard before Hon. D. W. Speaks. Joe Norwood was convicted of murder in the second degree and he appeals. The fact that deceased said “he was going to die” alone is not sufficient predicate for the admission of dying declarations. — Titus v. State, 117 Ala. 16; Justice v. State, 99 Ala. 180; Ward v. State, 78 Ala. .448. Dying declarations are substitutes for sworn testimony and must yield to the general rules governing the admissibility of evidence. — 21 Cyc. 987.

Heard before Hon. Thomas W. Wert. Lonise Bolin was convicted of manslaughter and she-appeals. The Supreme Court entertained and passed on motion for a new trial in a. criminal case in the case of Lowery v. State, 98 Ala. 45. The verdict should be set aside on account of the relationship of a juror. — Sowell v. Brewton, 119 Ala. 93. The preponderance of the evidence was decidedly against the verdict. — Bir. Nat. Bank v. Bradley, 116-Ala. 142.

Heard before Hon. Armstead Brown. Joe Henderson was convicted of murder in the second degree, and appeals. The facts sufficiently appear from the opinion of the court.

Heard before Hon. Mike Sollie. Wayman Coon was convicted of murder in tbe second degree, and appeals. Motive must be proved as a fact and not as hearsay, and any question or evidence admitted by the court as to the relations of deceased and Cora Coon, was error. — Fair v. State, 58 Ala. 79. Each of the charges refused to defendant should have been given. — Oliver v..

A peal from Wilcox Circuit Court. Heard before Hon. B. M. Miller. Joe Maxwell was convicted of manslaughter in the first degree on an indictment for murder in the second degree, and he appeals. The person alleged to have been killed was Turner Blackmon. The other facts sufficiently appear from the opinion.

Heard before Hon. B. M. Miller. John Wesley Smiley was convicted of murder in the second degree and he appeals. The variance'was a material variance, and the court properly set aside the original service. — Nutt v. State, 63 Ala. 180. The subsequent service was not a compliance with the order of the court as originally made, nor with any other order, and was consequently void. — Acts 1909, p. 317; Nutt v. State, supra; Haisten v. State, 5 Ala. App. 1; Welsh v. State, 1 Ala.

Heard before Hou. E. P. Goodwin. Jobu Franks was held under a charge of murder in the first degree, and brought habeas corpus to be admitted to bail. From an order denying bail, he appeals. The requisites essential to constitute murder in the first degree have been often passed upon by this court.- — Long v. State, 84 Ala. 1; Hamil v. State, 90 Ala. 582; Hornsby v. State, 94 Ala. 55.

Heard before Hon. H. A. Pearce. Will Wise was convicted of murder in the second degree, and be appeals. The witness Brunson testified that as mayor he held an inquest that night, and that the defendant was present and sworn and testified at the inquest.

Heard before Hon. O. P. Almon. Pbil Thomas was convicted of murder in the second degree, and he appeals. The exceptions to evidence are sufficiently stated in the opinion. The following charges were refused to defendant: (1) If you have a reasonable doubt as to whether or not defendant was at Blankenship’s saloon at the time Henry Freeman was killed, your verdict should be not guilty.

Heard before Hon. T. L. Sowell. John Hall was convicted of an assault with intent to murder Fred Camack, and appeals The exceptions to evidence sufficiently appear from the opinion. The following charges were refused to defendant : (1) If you believe from the evidence that defendant was free from fault in bringing on the difficulty, and retreated as far as was reasonably safe under the circumstances as shown by the evidence before the firing, you should acquit.

Heard before Hon. A. H. Alston. Homer Cowart was convicted of an assault with intent to murder, and he appeals. The defense was that defendant struck or shot in the defense of his father at a time when the party assaulted was attempting to assault his father with a knife. The oral charge of the court sufficiently appears.

Heard before Hon. M. Sollie. (This case was reversed and remanded by the Supreme Court in the case of Ex parte Ratley,• 66 South. 147.) Raymond Ratley was convicted of assault with intent to murder, and he appeals. The plea of former jeopardy set up all the proceedings in the mayor’s court of Ozark showing the arrest and conviction of defendant in said municipal court of section 215, defining and punishing an assault, or an assault and battery.

Heard before Hon. Armstead Brown. J. F. Murkison was convicted of an assault with a Aveapon, and appeals. The folloAving charges Avere refused to defendant: (10) The jury should not convict defendant Avithout a reasonable belief of his guilt, and even such reasonable belief might not be sufficiently shoAvn to exclude a rea-' sonable doubt to the contrary.

Clair Circuit Court. Heard before Hon. James E. Blackwood. Thomas D. Graham was convicted of assault and battery and he appeals.

Heard before Hon. Thomas W. Coleman, Jr. Elbert Hudson was convicted of an assault with intent to murder and he appeals. Charge 3 should have been given. — Myers v. State, 62 Ala. 599; Orr v. State, 117 Ala. 72. The court erred in refusing the other two charges requested by defendant. — Sec. 6306, Code 1907, and authorities supra. Counsel discuss the errors assigned, but without citation of authority.

Clair Circuit Court. Heard before Hou. James E. Blackwood. George Barber was convicted of assault with intent to murder, and he appeals. The objections to evidence sufficiently appear.

Clair Circuit Court. Heard before Hon. James E. Blackwood. Guss Webb was indicted for assault with intent to murder Tom Cole, and was convicted of assault, and he appeals. Charge 2 is as follows: To justify a conviction, circumstantial evidence ought to exclude a rational probability of innocence; and a-conviction ought not to be had on circumstantial evidence when direct and positive evidence are obtainable.

Heard before Hon. Thomas W. Wekt. Roscoe Blankenship was convicted of assault and battery, and he appeals. The criticism of the charges given for defendant sufficiently indicate the grounds of their refusal. The following charge is charge A, given for the state: Before the burden is cast upon the state to show that he was the aggressor, defendant must reasonably satisfy the jury of his inability to have safely retreated, and of the other elements of self-defense.

Limestone Circuit Court. Heard before Hou. D. W. Speaks. Hughey Holland ivas convicted of seduction, and be appeals. If indictment found on uncorroborated statement of prosecutrix it should be quashed on motion. — Allen v. State, 162 Ala. 74. Defendant is entitled to prove by the grand jurors that there was no evidence before them • corroboratory of prosecutrix. — Allen v. State, 162 Ala. 74; Hart’s Case, 117 Ala. 183.

Heard before Hou. W. W. Pearson. Andrew Stone was convicted of adultery, and he appeals. Paul Tatum was shown a letter, and the envelope with it, and testified that he received the letter in the envelope in due course of mail, that the letter was unsigned, but the envelope bore in the left-hand upper corner, “After __ days return to J. A. Stone, Calera, Ala., R. F. D.,” and that the letter came to him sealed and stamped in that envelope.

Heard before Hon. John .T. Lackland. Charlie Brantley ivas found guilty of bastardy, and he appeals. The following charges were refused to the defendant: (15) The court charges the jury that an offer of compromise is not an admission of guilt of the defendant in this case.

Heard before Hon. A. E. Gamble. Pete Smith was indicted for robbery, convicted of assault with intent to rob, and he appeals. The following charges were refused to defendant: (1) Defendant cannot he convicted of assault and battery if you believe the evidence. (2) Defendant cannot be convicted of an assault with intent to rob, if you believe the evidence.

Heard before Hon. William E. Fort. L. D. Ireland, alias, etc., was convicted of petty larceny, and he appeals. The act establishing the Jefferson Criminal Court wherein it provides that the failure of a misdemeanant to demand a trial by jury within a certain time, is a waiver of the right of trial by jury, violates section 6, Constitution 1901. — Ex parte Knight, 61 Ala. 485; 26 Gyc. 150; Sanders v. State; 55 Ala. 45; Story’s Const. Law, 697 and 713.

Heard before Hon. William E. Fort. Louis Newton was convicted of burglary and grand larceny and be appeals. The court erred in refusing tbe charge requested by defendant. — Cook v. State, 35 South. 665; Mitchell v. State, 30 South. 348; Turner v. State, 25 South. 272; B. R. L. & P. Go. v; Goldstein, 61 South. 281.

Clair Circuit Court. Heard, before Hou. James E. Blackwood. . A. J. Yorty was convicted of grand larceny, and be appeals. Defendant was convicted of stealing a cow of the value of $10. The following charges were, refused, to defendant: (1) The court charges the jury that, if after a full consideration of all the evidence the guilt of defendant is not proven, to a moral certainty, then the jury must find defendant not guilty.

Heard before Hon. M. Sollie. Will Holland was convicted of arson in the second degree for attempting to burn a buggy house within the curtilage of the dwelling of one J. W. Helms, and he appeals. The appeal was taken within twelve months, and defendant is entitled to have the merits passed upon.- — Porter v. State, 146 Ala. 36; Rule 42, Sup. Ct. Pr.

Heard before Hon. H. A. Pearce. Julian Phillips was convicted of arson and he appeals. Declarations of a conspirator made after the accomplishment of the object for which the conspiracy was formed, are not admissible against a co-conspirator when made in his absence. — Everage v. The State, 21 South. (Ala.) 404; Williams v. The State, 1 South. (Ala.) 179; at p. 183; Lowman v. The State, 50 South. (Ala.) 43 at p. 44.

Heard before Hon. Ed T. Albritton. Charley Banks Was convicted of using obscene or insulting language in the presence of a female, and he appeals.

Heard before Hon. E. S. Lyman. W. Clinton Cast was convicted of using abusive or insulting language, and demurrer having been sustained to bis plea of former jeopardy, be appeals. The plea was in Code form, and set up a perfect defense to the action, and hence, the demurrers thereto were improperly sustained. —Secs. 1221-2, and 7574, Code 1907; Culpepper v. Adams, 1 Ala. App. 536.

Heard before Hon. Ed. T. Albritton. Shell Fletcher was convicted of violating the prohibition law, and he appeals. This case was reversed and remanded by the Supreme Court, July 25, 1914, in the case of Ex parte Fletcher, 66 South. 148. The provisions of General Acts 1909, p. 63, so far as the City Court of Andalusia is concerned relative to a trial by jury was repealed by Local Acts 1911, p. 327. — 22 Mich. 322; 109 U, S. 504; Endlich on Interpretation of Statutes, sec. 206.

Heard before Hon. M. Sollie. Henderson Wynn was convicted of violating the prohibition law, and he appeals. Counsel insists that although the act shown was prima facie evidence of a wrongful keeping and sale, that the evidence of defendant and of the person getting the whisky nullified as a matter of law the prima- facie presumption, and defendant was entitled to the affirmative charge.

<p>Appeal from Andalusia City Court.</p> <p>Heard before Hon. E. T. Albritton.</p> <p>Tom Hodge was convicted of violating the prohibition law and he appeals.</p>

Heard before Hon. Armstead Brown. James L. Harwell was convicted of violating the prohibition law, and he appeals. Defendant was entitled to know what the witness was paid for his services.' — Gnmford v. State, 4 Ala. App. 1. Defendant was entitled to have the state elect as to which sale he would proceed for. — Shivers v. State, 7 Ala. App. 110; Loudermilk v. State, 4 Ala. 167; Askew v. State, 6 Ala. 41; Morse v. State, 3 Ala. App. 189.

Heard before Hon. M. Sollxe. Will Jackson was convicted of violating the prohibition laws, and he appeals. There was nothing in the evidence authorizing a submission to the jury as to whether it was whisky or not that defendant received. — Jeffries v. State, 62 South. 270; Wright v. State, 5 Ala. App. 150; Oldaere v. State, 5 Ala. A'pp. 187; Glarh v. State, 64 South. 158; Jones v. State, 90 Ala. 630.

Heard before Hon. M. Sollie. Ed. Perry was convicted of selling, offering for sale or keeping for sale prohibited liquors, and he appeals. The defendant was entitled to the affirmative charge under the evidence. — Oldacre v. State, 5 Ala. App. 167; Sta/rkes v. State, 64 South. 158; Jones v. State,.90 Ala. 680; Jeffries v. State, 62 South. 270.

Heard before Hon. S. L. Brewer. Sam Walker was convicted of violating the prohibition laws, and he appeals. The specific charge was manufacturing prohibited liquors. The defendant’s plea was the pendency in the county court of Randolph county of a similar prosecution against him, commenced by warrant and affidavit, to answer which defendant had given bond.

Heard before Hon. M. Sollie. Asa Watson was convicted of violating the prohibition law, and he appeals. Counsel discuss the errors assigned both as to the evidence and refused charges, but without citation of authority.

Heard before Hon. M. Sollie. John Herring was convicted of violating tbe probibi-. tion law, and be appeals. Beasley was introduced as a witness, and testified that all during the year be bad been in the service of the Southern Express Company and the Central of Georgia Railway Company, at their office in Louisville, Barbour county, Ala.

Walker Law and Equity Court. Heard before Hon. T. L. Sowell. Harmon Willingham was convicted for keeping intoxicating liquors for sale, and he appeals. The court properly permitted the affidavit to be amended. The evidence was sufficient to make) out a prima facie case under section 4, Acts 1909, p. 64. The oral charge of the court was correct. — McNeal v. State, 122 Ala. 121.

Heard before Hon. M. Sollie. Peter Hendrix was convicted of violating the prohibition law, and he appeals. No time ’was shown as to when the offense was committed, this was a material matter, and entitled defendant to the affirmative charge. — Holly v. State, 63 S’outh. 738; Doss v. State, 61 South. 478. Although the Supreme Court has power to make rules, it cannot do so contrary to the statutes. The rule relative to time and venue is found in sections 7139-40, Code 1907.

Heard before Hon. M. Sodlie. John Carmichael was convicted of violating the prohibition law, and appeals.

Heard before Hon. S. L. Brewer. Cicero Gravett was convicted of violating the prohibition law in that he manufactured or aided in manufacturing intoxicating liquors, and he appeals. The objections to evidence were not sufficient to authorize a court to review it. — Thornton v. State, 113 Ala. 43; Jenhins v. State, 82 Ala. 28. The court properly refused the-charges requested. — Collins v. State, 152 Ala. 90; Fielding v. State, 135 Ala. 56; Barker v. State, 126' Ala. 33.

Heard before Hon. M. S'oldie. Fred Bell was convicted of carrying concealed weapons, and he appeals. ■ Charge B is as follows: The burden of proof is- on the state to prove to you beyond a reasonable doubt from the evidence that at the. time Bell had the pistol he was upon the property of the railroad, and, if you have a reasonable doubt as to this from the evidence, you will acquit. Charge A is the general affirmative charge.

Heard before Hon. M. Sollie. Albert Norton was convicted of unlawfully carrying a pistol, and he appeals. The way over which the pistol was carried was dedicated to the public, and defendant had a right to be there with his pistol unconcealed. — 12 Ga. 239; 4 Fed; 161; 30 Kan. 620, and defendant was therefore entitled to have a verdict directed for him.

Heard before Hon. E. S. Lyman. Wiley J. Nelson was convicted for the unlawful carrying of a pistol, and he appeals. It is permissible to prove a state’s witness’s hostility to a defendant, even though the witnesses admit bad feeling. — Fincher v. State, 58 Ala. 215; Compton v. State, 96 Ala. 31; Lodge v. State, 122 Ala. 97; Polhv. State, 62 Ala. 237.

St. Clair Circuit Court. Heard before Hon. James E. Blackwood. W. O. Merrill was convicted of unlawfully or maliciously killing a hog, and he appeals. Omitting formal charging part, the indictment is as follows: W. O. Merrill, whose name is otherwise unknown to the grand jury, did unlawfully, or wantonly, or maliciously kill a hog, the property of William Minick. The demurrers do not appear from the record.

Heard before Hon. Bernard Harwood. George Madison was convicted of violating the stock law, and he appeals. The indictment was subject to the demurrers interposed. — Robinson v. State, 100 Ala. 123'; Hill v. State, 120 Ala. 392; Mayo v. State, 89 Ala. 38; 7 Mo. 301; 77 Ky. 161; 83 Ind. 512; 23 Cyc. 216.

Heard before Hon. John C. Pugh. From an order admitting Sol Franklin to bail upon his application by habeas corpus, the State appeals. This court will not review or reverse an order admitting to bail unless it clearly appears that the trial court erred therein. The evidence in this case clearly establishes defendant’s right to bail. — Bos parte Hammock & Elrod, 78 Ala. 414; Butler v. State, 1 Ala. App. 265; State v. Oole, 59 South. 681.

Heard before Hon. C. C. Nesmith. Action by D. Reid against Lige Loy for breach of contract in embalming the body of plaintiff’s dead child. Judgment for plaintiff and defendant appeals. The court erred in overruling demurrers to counts 1 and 2 as amended. There was total failure of proof as to some of the allegation of damages in said counts, and consequently a variance.

Heard before Hou. W. O. Mulicey, Special Judge. Action by A. S. Clark against J. D. Holman. From a judgment overruling a motion to abate tbe suit, tbe defendant appeals. The court should bave granted the motion to- abate the suit under the facts shown in this suit. — Sec. 2499, Code 1907; Phoenix I. Go-, v. Moog, 81 Ala. 338; Evans v. Welch, 63 Ala. 254. The court should bave granted the motion to strike the cause from the docket.- — Ex párete Sayre, 69 Ala. 184.

Heard before Hon. D. W. Speake. Action by T. S. Lawler against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. The facts sufficiently appear from the opinion of the court. The following are the charges refused to defendant: (3) Failure of plaintiff’s driver to stop, look, and listen at a point where, had he looked, he could have seen the approaching train is contributory negligence such as would bar plaintiff’s recovery in this case.

Heard before Hon. C. B. Smith. Action by P. A. Crane against the Central of Georgia Railway Co., for damages for carrying him beyond the station of his destination. Judgment for plaintiff and defendant appeals. The court erred in refusing the charges requested by defendant. — Smith v. Ga. Pac. Ry. Go., 88 Ala. 588; 54 S. W. 1090; 16 Cyc. 876; 2 Hutchison on Carriers, sec. 1121.

Heard before Hon. D. W. Speaks. Action by Coleman S. Fox against tbe Louisville & Nashville Railroad Company for damages for killing animals. Judgment for plaintiff, and defendant appeals. The charge refused to defendant was the affirmative charge, and that given for plaintiff was the affirmative charge to find for plaintiff. The defendant was entitled to the general affirmative charge.

Circuit Court. Heard before Hon. Hugh D. Merrill. Trover and conversion by S. L. Lewis against John H. Wilson, for the conversion of a saw-mill outfit. Judgment for plaintiff and defendant appeals.

<p>Appeal from Andalusia City Court.</p> <p>Heard before Hon. Ed. T. Albritton.</p>

<p>Appeal from Andalusia City Court.</p> <p>Heard before Hon. Ed. T. Albritton.</p>

Heard before Hon. P. B. Jarman. Jim Frazier was convicted of violating the prohibition law and he appeals. Section 32 of the Acts of 1909, p. 92, does not make any change except as to the time in which a demand for a jury can be made, and does not repeal the provisions of the local Act creating the county court. — Wilson v. State, 64 South. 510, and authorities cited.

Heard before Hon. T. L. Sowell. . Rich Glover was convicted of violating tbe prohibition law, and he appeals.

Heard, before Hon. C. P. Admon. Arthur Hicks .was convicted of violating the prohibition law, and he appeals. Counsel discuss the errors assigned relative to the admission of evidence, but without citation of authority. They insist that the appeal was properly taken, and that rule 44 is without application, but they cite no authority. Counsel discuss the matters complained of on the appeal, but without citation of authority.

Heard before Hon. A. E. Gamble. Clem Askew was convicted of violating the prohibition law, and appeals. The prosecution was begun by affidavit, and alleged that defendant sold, offered for sale, kept for sale, or otherwise disposed of prohibited liquors.

Heard before Hon. W. W. Pearson. Ben Spigener was convicted of violating the prohibition law, and he appeals. Counsel discusses each assignment and insists that there was error, but cites no authority in support of his contention. There is no error in the record. — Allison v. State, 1 Ala. App. 206.

<p> Violating Prohibition Law. </p> <p>Criminal Law; Sentence; Surplusage. — -A sentence to hard labor for the county for thirty days to pay the fine, and an additional term of fifty-seven days at a specified rate per day for the payment of the costs, is not rendered invalid by the addition of “and the said hard labor to end and terminate on the 27th day of November, 1914,” nor was such addenda necessary to the validity of the sentence, since the statute does not contemplate that the court shall fix the termination of the sentence; hence, the quoted words should be treated as surplusage.</p>

Heard before Hon. M. Sollie. Golden Johnson was convicted of carrying a weapon on premises not his own, and he appeals. On the authority of 'Nidhols v. State, á Ala. 115, the court erred in giving the general charge for the state. Under the evidence defendant was guilty of violating the provisions of Acts 1909, p. 258, and the court properly directed the verdict.

Heard before Hon. T. L, Sowell. Charley Jackson was convicted of assault with intent to murder and he appeals. The court properly permitted it to be shown that defendant attempted to evade arrest. — Bowles v. Stale, 58 Ala.' 335] Elmore v. State, 98 Ála. 12; White v. State, 111 Ala. 92 ; Sweatb v. State, 156 Ala. 85. The objection to the argument of counsel was properly overruled. — B. R. L. & P. Co. v. Gonzalez, 51 South. 81.

Heard before Hon. W. W. Pearson. Morris Franklin was convicted of an assault with a ' weapon and he appeals. The indictment, judgment and sentence were regular, and sufficient. — Smith v. State, 4 Ala. App. 212. There is no bill of exceptions and nothing to be reviewed.

Heard before Hon. S. E.'Greene. Bud Webb was convicted of robbery and he appeals. The record is sufficient to sustain the conviction, and there is no hill of exceptions. Hence, there is nothing to review.

Heard before Hon. O. J. Semmes. Walter Hughes was convicted of burglary and he appeals. What purports to be a bill of exceptions contains no exceptions, and hence, cannot be considered.

Heard before Hon. O. J. Semmes. Jobnnie Owens was convicted of grand larceny and he appeals. The bill of exceptions violates rule 32 Circuit Court Practice, and should be stricken. It should be stricken also because not filed within 90 days.- — -Sec. 3019, Code 1907.

Heard before Hon. O. J. Semmes. Mary Upshaw was convicted of embezzlement and she appeals. Counsel discuss the matters assigned as error, but in view of . the opinion, it is not deemed necessary to here set them out. The appeal has been discontinued for a failure to comply with rule 43 Sup. Ct. Pr., and should be dismissed.

Heard before Hon. William E. Fort. Love Harris was convicted of burglary, and he appeals.

Heard before Hon. William E. Fort. Rena Mazett was convicted of receiving stolen goods, and she appeals. The appeal should be dismissed. — Upshaw v. State, infra; 66 South. 821.

Appear from Mobile City Court. Heard before Hon. O. J. Semmes. William Brown was convicted of murder in the second degree, and he appeals. The court was in error in permitting it- to be shown that one could see through that door from where Brown was sitting one coming along the streets. — Miller’s Case, 107 Ala. 40; Evans’ Case, 109 Ala. 11; A. G. S. v. Burgess, 114 Ala. 587.

Heard before Hon. John T. Lackland. Mose Bradley was convicted of manslaughter in the first degree, and he appeals. There was evidence tending to support • the state’s theory, and the court properly refused the affirmative charges. The action of the court on motion for new trial in criminal cases is not reviewable on appeal.

Heard before Hon. Bernard Harwood. Jim Rector was convicted of manslaughter, and he appeals. Defendant was indicted for unlawfully and with malice aforethought killing Jim Wright by cutting him with a knife, but without premeditation or deliberation.

Heard before Hon. A. E. Gamble. Detinue by the Cody-Henderson Company against J. C. Tate, in which W. H. Tate intervenes as claimant. Judgment for plaintiff and claimant appeals. Under the issues the burden was on plaintiff to prove that the title to the property was in plaintiff, and that plaintiff was entitled to immediate possession. — Hensley v. Orendorf, 152 Ala. 604; Shows v. Brantley, 127 Ala. 354; Kyser v. Maas, 111 Ala. 394; sec. 3792, Code 1907.

Heard before Hon. Ed. T. Albritton. . Detinue by the Bank of Florala against J. H. Smith. Judgment for defendant and plaintiff appeals. The instrument under which appellant claims title to the property is a legal mortgage, and sufficient to support detinue. — Mervin v. White, 50 Ala. 388; Ellington v. Charleston, 51 Ala. 166; Clover v. MoCilvary, 63 Ala. 508; 1 Jones on Mortgages, p. 3.

Heard bfeore Hon. Armstead Brown. Detinue by T. G-. Johnson against D. F. Odom, for the recovery of a cow. Judgment for defendant, and plaintiff appeals.

Heard before Hon. Samuel B. Browne. Detinue by the Gulfport Fertilizer Company against H. W. Padgett. Judgment for plaintiff and defendant appeals. The court erred in sustaining demurrers to pleas 2, 3, 4, 5, 7, 8, 9, 14 and 19. — American A. Co. v. East L. C. C'o., 56 South. 961; Banchey v. So. B. & L. Assn., 140 Ala. 245; Ala. W. R. R. Co. v. Talley-Bates Go., 162 Ala. 402; State v. Bristol Sav.

Heard before Hon. C. B. Smith. Detinue by W. A. Falkner against W. J. Chappell and others. Judgment for plaintiff and defendants appeal.

Heard before Hon. J. J. Curtis. Detinue by L. F. Prince against Robert McCoy. From a judgment for plaintiff, defendant appeals. The facts sufficiently appear in the opinion.

Original petition in Court of Appeals. Application by the State on the relation of the Attorney General for a writ of mandamus directed to the Honorable Gaston Gunter as Judge of the City Court of Montgomery, inquiring him to resentence a prisoner who had been discharged on habeas corpus.

Heard before Hon. S. L. Brewer. Attachment to enforce a landlord’s lien sued out by T. L. Wright and others, against one Mooney, with a claim to the'property interposed by Landrum & Company under a mortgage executed by Mooney. Judgment for plaintiffs and defendants appeal.

Heard before Hon. C. P. Almon. H. H. Horton recovered a judgment against .George F. McAllister, had execution thereon which was levied upon the equity of redemption of said McAllister, in two mules, it being further shown by the execution that the mules were in possession of defendant, and on which Jesse Hovater claimed to hold a mortgage.

Heard before Hon. A. E. Gamble. Assumpsit by Scheuer, Wise & Company against W. T. Boatwright. Judgment for plaintiff and defendant appeals. The defendant could impeach by parol evidence the consideration expressed in the note. — Hart v. Life Assn., 54 Ala. 498; Ragsdale v. Gresham, 148 Ala. 308.

Heard before Hon. E. C. Crowe. Mrs. L. T. Edwards appeals from tbe action-of the circuit court, dismissing her appeal to that court, from the justice court wherein T. A. Davenport obtained a judgment against her. The appellant should have been allowed to make a new bond. — Sec. 4719, Code 1907; Ex parte Webb, 58 Ala. 109, and authorities there cited; Orr v. Spqrlcman, 23 South. 829; Commissioners Court v. Wilborn, 155 Ala. 192.

Heard before Hon. J. N. Ham. . Assumpsit by A. G. Fuller against Wise, Boles & Bowdoin. Judgment for plaintiff, and defendants appeal. The objections and exceptions to evidence sufficiently appear from tbe opinion.

Heard before Hon. H. A. Pearce. Action by Bessie B. Jones against the Sovereign Camp W. O. W., upon a fraternal benefit certificate. Judgment for plaintiff and defendant appeals. There was no evidence of a. waiver by Yates, and the affirmativé and other charges requested by defendant should have been given. — Mobile L. I. Go. v. Pruett, 74 Ala. 477; United 0. G. G. v. Hooser, 49 South. 354; Sup.

Heard before Hon. John C. Pugi-i. Kitty Ellison has judgment against the District Grand Lodge 23, United Order of Odd Fellows, with garnishment against a bank in aid of said judgment. From a judgment holding funds so garnished not liable for plaintiff’s claim, she appeals.

Heard before Hon. Bernard Harwood. Assumpsit by the Park-Robertson Hardware Company against Marvin Copeland. Judgment for defendant, and plaintiff appeals. The complaint contained the common counts and counts claiming for goods, wares and merchandise sold by plaintiff to Andrew Johnson at the request of defendant, and on defendant’s credit alone; such counts stating the facts as shown by the facts set out in the opinion.

Heard before Hon. E. J. Garrison. Assumpsit by the Outcault Advertising Company against J. W. Hooten & Co. Judgment for defendants, and plaintiffs appeal. Count 2 sets up the following contract: Order No. 213. Aug. 26, 1911. Ship us at our expense as per sample shown your all wool ad service to cover a period of one year beginning Sept. 15, 1911. This service to consist of 52 all wool cuts. Card, right reserved.

Heard before Hon. Hugh D. Merrill. Action by T. L. Carson against W. P. Pointer for • rent. Judgment for defendant, and on order denying new trial -plaintiff appeals. It is essential that a juror should be a citizen of the county in which the trial is had. — Acts 1909, 309; Collins v. State, 88 Ala. 212; 24 Cyc. 175, 98 and notes; Amos v. State, 96 Ala. 120.

Heard before Hon. J. E. Blackwood. Assumpsit by J. W. Tucker, and T. W. Morrow against G. W. Potter. Judgment for plaintiff and defendant appeals. Tbe complaint was not sufficient to support a cause of action in that it failed to state tbe day, month and year of tbe notes. —Central L. Co. v. McClure L. Co., 61 South. 821; Sloss-Shefield v. Sampson, 158 Ala. 590.

Heard before Hon. Thomas W. Wert. Assumpsit by Luther Adcock against D. W. Day. Judgment for plaintiff and defendant appeals. Refusal of the court to give the several affirmative charges requested by appellant was error. — Webb v. Hawkins L. Go., 101 Ala. 630; Fuller v. Gray, 116 Ala. 238; Gaoneron v. Haas Bros. P. Go., 57 South. 388; subd. 3, sec. 4289, Codb 1907. On these authorities it is insisted that the other rulings of the court complained of were error.

Heard before Hon. H. A. Sharpe. Action by Wilson I. Burgin against the Gf. T. Wofford Oil Company to recover fees for inspecting oils. Judgment for plaintiff and defendant appeals. The act of 1911, does not offend section 77 of the Constitution. — State v. McGough, 118 Ala. 159; State v. Garter, 174 Ala. 266.

Heard before Hon. J. H. Disque. The Southern Wesco Supply Company had judgment against the Monarch Heating & Supply Company and W. G. Gallespie, and had garnishment issued to the Interstate Constitution Company, with notice to defendants. The garnishees answered suggesting J. W. Hammond as claimant to the fund garnished, and the claimant came in and propounded his claim to the fund garnished, under the circumstances as set forth in the opinion.

Heard before Hon. John H. Miller. Action by J. A. Burke, an engineer in the employ of the Birmingham Southern Railway Company, against the Louisville & Nashville Railroad Company for injuries received in a collision caused by backing an L. & N. Railroad train into plaintiff’s engine. Judgment for plaintiff and defendant appeals.

Heard before Hon.- E. S. Lyman. Action by Rufus Lester, revived in the name of his executor, against Max Lefkovitz and others for the conversion of certain property. Judgment for plaintiff, and defendants appeal. The facts sufficiently appear from the opinion.

Heard before Hon. A. H. Alston. Action by Lena Holland against the Western Union Telegraph Company for damages for delay in delivery of telegram. Judgment for plaintiff, and defendant appeals. The following charges were refused to defendant: (1 and 2) Affirmative charge with hypothesis. (B) No more than nominal damages. (4) Recovery cannot exceed 25 dents, the amount paid for the telegram.

Heard before Hon. E. S. Lyman. R. A. Carden sued the L. & N. Rialroad Company in a justice court for damages for killing stock, and recovered judgment for $35, the amount which had been tendered him by defendant, he appealed to the circuit court where he had verdict and judgment for the same amount, and the court taxed him with the costs, and from a denial of the motion to tax defendant with the cost, plaintiff appeals.

Heard before Hon. H. A. Pearce. Action by Jeff D. Bradley against E. A. Bowdoin. Prom a judgment for plaintiff, defendant appeals. The following charges were refused to defendant: (1) If the jury believe the evidence, they cannot find for plainitff as to the seed cotton in the house. (2) Before the jury can find for plaintiff, the proof must be clear and strong that defendant burned the cotton house.

Birmingham City Court. Heard before Hon. John H. Miller. Action by Robert Lawler against the Birmingham Stove & Range Company for damages for injuries suffered while in its employment. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Saffold Berney. Action by C. M. Blalack and others against J. J. Blacksher, for damages for injury by an automobile. Judgment for defendants and plaintiff appeals. The answers to interrogatories are in the exclusive control of the party taking them, and the court was in error in permitting inquiry by defendant as to interrogatories propounded by plaintiff, as the answers, were the best evidence. — Sec. 4053, Code 1907; So.

Heard before Hon. Thomas W. Coleman, Jr. Action by M. N. Anderson against the Anniston Electric & Gas Company, for damages to him as a passenger by carrying him beyond his destination. Judgment for plaintiff and defendant appeals. The facts sufficiently appear from the opinion.

Heard before Hon. Thomas W. Coleman, Jr. Action by M. N. Anderson against the Anniston Electric & Gas Company, for injuries to him as a passen-. ger. Judgment for defendant, and plaintiff’s motion for new trial being overruled, he appeals.

Heard before Hon. Samuel B. Bkowne. Action by Wm. H. Louissell against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Saeeold Bebney. ■Action by the New York & Mexican Whiting Company against the Mobile Towing & Wrecking Company, and O. B. Lyons, and the American Bonding Company of Baltimore City. Judgment by default, and Lyons and the Bonding Company appeal.

Heard before Hon. Saffold Berney. Action by Andrew Drooks against the Mobile Light & Ráilroad Company, for injuries from being struck by a street car. Judgment for.plaintiff and defendant appeals. The court erred in overruling demurrers to the replication to defendant’s plea. — So. Ry. v. Stewart, 153 Ala. 137; Johnson v. B. R. L. & P. Go., 149 Ala. 534; Weatherly v. N. G. & St. L. 166 Ala. 583.

Heard before Hon. S. L. Brewer. Action by Miss A. M. Hilley against the Central of Georgia Bailway Company, for the damages for setting her down short of her destination. From a judgment for plaintiff granting insufficient relief, she appeals.

Heard before Hon. E. C. Crowe. Action by S. E. Willoughby against the Birmingham Railway, Light & Power Company for damages for ejection and assault and battery. Judgment for defendant, and plaintiff appeals. This action is for the alleged wrongful ejection of plaintiff, who is appellant here, from one of the defendant’s street cars, and for an assault and battery alleged to have been committed on him.

Heard before Hon. Citarles W. Ferguson. Action by J. W. Dawson against the Louisville & Nashville Railroad Company, for damages for injuries. for being wrongfully ejected from one of its passenger trains. Judgment for plaintiff and defendant appeals. The court erred in overruling demurrers to the first count of the complaint as amended. — ■ Fidelity Oo. v. Walker, 158 Ala. 142; Daniels v. Carney, 148 Ala. 81; A. G. 8. v. Cardwell, 171 Ala. 274.

Heard befor Hon. Hugh D. Merrill. Action by Newton J. Jarvis against the Southern Raihvay Company, for damages resulting to him from blocking a public road. Judgment for plaintiff, and defendant appeals.

Heard before Hou. Hugh D. Merrill. Action by Joe Benenante against tbe Alabama Fuel & Iron Company. Judgment for plaintiff, and defendant appeals. The first count, after setting out tbe relationship and tbe fact that plaintiff was injured by a large rock falling on bim while in tbe pursuit of bis employment in tbe coal mine, avers tbe negligence to consist in tbe failure of tbe defendant to provide plaintiff with a safe place in which to work.

Heard before Hon. J. E. Blackwood. Action by D. W. Phillips against tbe Lookout Fuel Company. From a judgment for plaintiff, defendant appeals. Tbe complaint sufficiently appears from tbe opinion.

Heard before Hon. D. W. Speake. Action by Wm. H. Winton against J. H. Hockensmitk for deceit. Judgment- for plaintiff, and defendant appeals.

<p>Original petition in the Court of Appeals.</p>