Volume 12 — Alabama Appellate Reports

Murder. Appeal from Jefferson Criminal Court. Heard before Hon. William E. Fort. William W. Ragsdale was convicted of manslaughter in the first degree, and he appeals. The indictment charged the killing of James W. Mc-Cauley, by shooting him with a, pistol, but without premeditation or deliberation. The witness McCauley was a second witness offered by the state.

Murder. Appeal from Tallapoosa Circuit Court. Heard before Hon. S. L. Brewer. Burley James was convicted of manslaughter in the first degree, and he appeals. The facts sufficiently appear from the opinion. The following charges were refused defendant: (2) If the jury believe from all the evidence that the shooting was accidental, you will find defendant not guilty.

Murder. Appeal from Coffee Circuit Court. Heard before Hon. H. A. Pearce. Osband Hickman was convicted of manslaughter in the first degree, and he appeals. The defendant was indicted for murder in the second degree for killing Asbury Rushing by shooting him with a gun, and was convicted of manslaughter in the first degree.

Murder. Appeal from Covington Circuit Court. Heard before Hon. A. H. Alston. Revenell Diamond was convicted of manslaughter under an indictment charging murder in the first degree, and motion to quash the venire for the reasons stated in the opinion having been overruled by the trial court, defendant appeals.

Murder. Appeal from Houston Circuit Court. Heard before Hon. H. A. Pearce. Peter Bouie was convicted of manslaughter in the first degree, and he appeals. The following charges were refused defendant: (1) The court charges the jury that, if they believe that Mallie Willis swore falsely to' material facts on a former trial of this case, they may disregard his evidence in the present trial. (2, 3) Same as 1 as to other witnesses named.

<p>1. Charge of Court; Reasonable Doubt. — The probability of innocence which will justify an acquittal, must be a reasonable probability arising involuntarily out of the evidence, or some part thereof after the jury’s consideration of the whole evidence.</p> <p>2. Sams. — A charge authorizing an acquittal if any one of the jurors entertained a reasonable doubt of guilt, is properly refused.</p> <p>3. Same; Covered by Those Given. — íhe court will not be put in error for refusing instructions substantially covered by requested instructions given.</p> <p>4. Homicide; Self-Defense. — Charges on self-defense which ignore the doctrine of freedom from fault are properly refused.</p>

Murder. Appeal from Montgomery City Court. Heard before Armstead Brown. Louis Bentley was indicted and convicted of man slaughter in the second degree, and be appeals. The court erred in admitting the evidence as to bow long Moore lay there until be was carried away, and as to bis cries and prayers while there. — 16 Cyc. 1115. The hypothetical question was altogether too general. — 17 Cyc. 232.

Murder. Appeal from Macon Circuit Court. Heard before Hon. S. L. Brewer. George Hall was convicted of manslaughter in the first degree under the circumstances as stated in the opinion, and appeals. A sufficient predicate was laid for the admission of dying declarations. — Hussey v. State, 87 Ala. 121.

Murder. Appeal from Conecuh Circuit Court. Heard before Hon. A. E. Gamble. Charlie Langham was convicted of manslaughter, and he appeals. The facts sufficiently appear.

Murder. Appeal from Coffee Circuit Court. Heard before Hon. H. A. Peakce. Joe Donald was convicted of murder in the second degree, and be appeals. Defendant was charged with killing John Jones by shooting him with a pistol. Defendant introduced one Gf. H. McRitchie and asked him if the defendant ever came up there to take out peace proceedings against Jones after that. Objection was sustained on motion of solicitor.

Murder. Appeal from Jefferson Criminal Court. Heard before Hon. William E. Foet. Jesse Nail was convicted of murder in the second degree, and be appeals. The facts sufficiently appear in the opinion. The following charges were refused defendant: (2) If there is one single fact proven to the satisfaction of the jury which is inconsistent with defendant’s guilt, this is sufficient to raise a reasonable doubt, and the jury should acquit.

Murder. Appeal from Morgan Law and Equity Court. Heard before Hon. Thomas W. Wert. ' Tom Carroll was convicted of manslaughter in the first degree, and he appeals. The following is the charge given for the state: If defendant had a reasonable mode of escape without danger to himself, and could have avoided killing deceased by such mode, be was not justified in killing Floyd Roberts.

<p> Murder. </p> <p>Appeal from Jackson Circuit Court.</p> <p>Heard before Hon. W. W. Haralson.</p> <p>Oscar Rudder was convicted of manslaughter in the first degree and he appeals.</p>

Murder. Appeal from Escambia Circuit Court. Heard before Hon. A. E. Gamble. Charlie Harold, alias, was convicted of murder in the second degree, and he appeals. The evidence sufficiently appears from the opinion of the court.

Murder. Appeal from Hale Law and Equity Court. ' Heard before Hon. Charles E.. Waller. (On June 30th, this cause ivas reversed and remanded by the Court of Appeals, in response to a holding by the Supreme Court that charge 17 should have been given. See Ex parte. Pollard, In Re Pollard v. State, in MSS. Reporter.) Ben Pollard was convicted of manslaughter and he appeals.

Assault With Intent to Murder.. Appeal from Jefferson Criminal Court. . Heard before Hon. William E. Foet. Tom McWilliams was convicted of assault with intent to murder, and he appeals. •The indictment -charged that defendant unlawfully and with malice aforethought killed'Bobert C. De Wees by shooting him with a pistol.

Assault With Intent to Murder. Appeal from Limestone Circuit Court. - Heard before Hon. D. W. Speake. Carl Wilson was convicted of an assault with intent to murder, and he appeals. The facts but not the details of a former difficulty are admissible. — Patterson v. State, 156 Ala. 52; MeAnally v State} 74 Ala, 9; Gray v. State, 63 Ala. 66.

<p> Assault and Battery. </p> <p>Appeal from Houston Circuit Court.</p> <p>Heard before Hon. H. A. Pearce.</p> <p>Alto Wilkerson was convicted of an assault and battery upon Cora Knight, and he appeals.</p>

Bobbery. Appeal from Jefferson Criminal Court. Heard before Hon. William E. Fort. Thompson Ware was convicted of robbery, sentenced to 15 years imprisonment, and he appeals. The facts sufficiently appear. The oral charge of the court set out on page 60 of the record is as follows: Evidence may be offered tending to show flight of a defendant, and, when it is offered by the state, it may be considered by the jury in connection with the other evidence in the case.

Arson. Appeal from Wilcox Circuit Court. Heard before Hon. B. M. Miller. Wrigbt Savage was convicted of arson, and be appeals.

Arson. Appeal from Marengo Law and Equity Court. Heard before Hon. Edward J. Gilder. Buster Daniels was convicted of arson, and be appeals.

Larceny. Appeal from Montgomery City Court. Heard before Hon. Abmstead Brown. R. E. Farrier was convicted of the larceny of a. cow, and he appeals. No brief reached the Reporter. On the question of comparison by the witness Clark of the check introduced in evidence with an extraneous one, see Moon v. Crowder, 72 Ala. 79; Griffin v. State, 90 Ala. 596; Glover v. Gentry, 104 Ala. 222; Curtis v. State, 118 Ala. 125; Tally v..

Larceny. Appeal from Montgomery City Court. Heai’d before Hon. Armstead Brown. Mabel Moye was convicted of grand larceny, and she appeals.

Embezzlement. Appeal from Walker Law and Equity Court. Heard before Hon. T. L. Sowell. Isaac Peters was convicted of embezzlement, and be appeals. Tbe indictment appears in tbe opinion, and tbe points raised by demurrer also sufficiently appear. Tbe' following charges were refused to defendant: 2.

<p> Burglary. </p> <p>Appeal from. Clay County Court.</p> <p>Heard before Hon. E. J. G-arrison.</p> <p>Elbert Hickey was convicted of burglary and be appeals.</p> <p>No brief reached the Reporter.</p>

<p>1. Larceny; Indictment; Description of Property. — An indictment describing the property as lawful money of the United States, of certain denominations, is sufficient to enable the jury to determine from the proof if the money taken from the person of the prosecutor, was the same as that which was described in the indictment.</p> <p>2. Indictment and Information; Averment of Facts Judicially Knoion. — The value of money described as lawful money of the United States of specific denomination is a matter of judicial knowledge, and does not acquire averment or proof.</p>

Larceny. Appeal from Montgomery City Court. Heard before Hon. Armstead Brown. Clem Benjamin was convicted of grand larceny, and be appeals. The facts sufficiently appear. The following is charge 9: The jury should not convict defendant without a reasonable belief of his guilt, and even such reasonable belief might not be sufficiently strong to exclude a reasonable doubt to the contrary.

Burglary. Appeal from Shelby Circuit Court. Heard before Hon. Hugh D. Merrill. John Boyd was convicted of burglary from a railroad car and he appeals. The grand jury was drawn more than twenty days before the beginning of the court to which the indictment was returned, and the plea in abatement should have been sustained.— Richter v. The State, 47 South. 163; Thrower v. Brandon, 7 South. 442.

Larceny. Appeal from Wilcox Circuit Court. Heard before Hou. B. 'M. Miller. Tom McKinney was convicted of the larceny of an óx and be appeals. The facts as proven do not constitute larceny. — Butler v. The State, 91 Ala. 87; Bollmg v. The State, 98 Ala. 83; Watson v. The State, 70 Ala. 13.

Larceny. Appeal from Clark Circuit Court. Heard before Hon. John T. Lackland. Ernest White was convicted of larceny and he appeals. The case was submitted on motion of the attorney general to dismiss the appeal, and on the merits. The proof did not correspond with the allegation as to the ownership of the property. — Fowler v. The State, 100 Ala. 90.

Burglary. Appeal from Dallas Circuit Court. Heard before Hon. B. M. Millek. Joe Darden and W. H. Daniels were convicted of burglary, and they appeal.

Adultery. Appeal from Pike Laiv and Equity Court. Heard before Hon. T. L. Borum. Olin Copeland was convicted of living in a state of adultery or fornication, and be appeals. Tbe evidence did not warrant a conviction, the special finding did not sustain the verdict and the court ivas in error in rendering the judgment. — Pell City v. Gasper, 55 Ala. 214.

Sodomy. Appeal from Dallas Circuit Court. Heard before Hon. B. M. Miller. Frank Tarrant was convicted of sodomy, and he appeals. The court erred in sustaining the general objection to the question propounded to witness Goldsby, as it was not patently illegal. — Pool v. Dams, 3G Ala. 672; Richards v. Best or, 90 Ala. 352. The witness was qualified to answer and should have been permitted to give his opinion. — 17 Cyc. 188, 294.

Adultery. Appeal from Cleburne Circuit Court. Heard before Hon. Hugh D. Merrill. Tom Fortner, alias, etc., was convicted of living in adultery, and be appeals. Tbe court erred in refusing charge 1. — Bodiford v. The State, 86 Ala. 67. Also in refusing charge 2. — Letcher v. The State, 159 Ála. 59. Also in refusing charges 3 and 6. — McDonald v. The State, 165 Ala. 85, and authorities, supra.

Seduction. Appeal from Cullman Circuit Court. Heard before Hon. I). W. Speake. Asbery Black ivas convicted of seduction, and pending Ms appeal be unlawfully escaped from custody. The defendant is an escaped felon, and his appeal should be dismissed.

Selling Property on Which Another. Has a Valid Lien. Appeal from Morgan Law and Equity Court. Heard before Hon. Thomas W. Wert.

Keeping Gaming Table. Appeal from Jefferson Criminal Court. Heard before Hon. S. E. Greene. Jim Brannon was convicted of vagrancy, in that he kept a gambling house, and he appeals.

Throwing Missile cut Train. Appeal from Cleburne Circuit Court. Heard before Hon. Hugh D. Merrill. Tom Posey was convicted of throwing missiles at a train, and he appeals.

Gaming. Appeal from BeKalb Circuit Court. Heard before Hou. W. W. Haralson. Bock Rogers was convicted of gaming, and be appeals. The original affidavit, omitting formal charging part, is that within 12 months before making this affidavit Bock Rogers bet at a game played with cards or dice or some device or substitute for cards or dice.

Gaming. Appeal from Tallapoosa Circuit Court. Heard before Hon. S. L. Brewek. Will Whatley was convicted of gaming or permitting games to be played by minors, and be appeals. • Counsel insists that the indictment does not charge any offense, and that there was no evidence to sustain the first count of the indictment, and hence there was nothing to sustain the judgment of conviction, but he cites no authority in support of his contention.

Gaming. Appeal from Dallas Circuit Court. Heard before Hou. B. M. Miller. Bry Kirkland was convicted of retailing and he appeals. No brief reached the Reporter. The only error is in the failure of the judgment to set out the amount of the cost and ascertain the number of days to work it out at 75c per day.

'Perjury. Appeal from Colbert Circuit Court. Heard before Hon. C. P. Almon. John Mullen was convicted of perjury, and be appeals. Counsel discuss the errors assigned as to the admission of evidence, but without citation of authority. They insist that the court erred in refusing charge “DD” § 7543, Code 1907, and authority there cited. The court also erred in refusing charge 100. —Carroll v. The State, 130 Ala. 99; Bell v. The State, 115 Ala. 25.

Violating Prohibition Law. Appeal from Coffee Circuit Court. Heard before Hon. H. A. Pearce. Jim Arrington was convicted of violating the prohibition law, and he appeals. Counsel discuss the errors assigned, with the insistence that a reversal should ' follow, but cites no authority. There is no judgmnt of conviction in the record, and therefore nothing on which to base an appeal. — A lien v. The State, 141 Ala. 35.

Violating Prohibition Law. Appeal from Autauga Circuit Court- Heard before Hon. W. W. Pearson.

Violating Prohibition Laws. Appeal from Anniston City Court. Heard before Hon. Thomas W. Coleman, Je. John Maxwell was convicted of violating the prohibition law, and he appeals.

Violating Prohibition Law. Appeal from Covington Circuit Court. Heard before Hon. H. A. Pearce. Ed. Fletcher was convicted of violating the prohibition laws and he appeals. Counsel discuss the errors assigned, but Avithout citation of authority.

Certiorari. Original petition in Court Appeals. Garfield Rodgers was convicted in tbe recorder’s court, and on appeal to tbe circuit court was also convicted and a sentence imposed, for violation of tbe prohibition law. He brings certiorari to quasb tbe judgment and sentence of tbe circuit court.

Violating Prohibition Lato. Appeal from Andalusia City Court. Heard before Hon. Ed. T. Albritton. King Mason was convicted of violating tlie prohibition laws and be appeals. The judge’s failure to instruct the jury to disregard testimony of the witness Ward as to seeing the defendant with whiskey after the warrant ivas issued, was prejudicial error.— Green v. The State, 96 Ala. 33. The charge requested should have been given. — L. & N. R. R. Go. v. Seale, 49 Sonth. 328.

Habeas Corpus. Appeal from Andalusia City Court. Heard before Hon. .Ed. T. Albeitton. Habeas corpus by Jim T. Ward to be discharged from custody. From a judgment denying the writ he appeals. There is no judgment of guilt, but simply a verdict and a sentence, and the judgment is void. — Moss v. The State, 140 Ala. 199; Wright v. The State, 103 Ala. 95; Ayers v. The State, 71 Ala. 11; Cray v. The State, 55 Ala. 86.

Habeas Corpus. Appeal from Tuscaloosa County Court. ' Heard before Hon. H. B. Foster. Charlie Lane was convicted of the violation of a city ordinance, and brings habeas corpus to procure his discharge. From an order denying his petition he appeals.

<p> Violating Prohibition Loup. </p> <p>Appeal from Bullock Circuit Court.</p> <p>Heard before Hon. Mike Sollie.</p> <p>George Finnett was convicted of violating the prohibition law and he appeals.</p>

Violating Prohibition Lato. Appeal from Anniston City Court. Heard before Hon. Thomas W. Coleman, Jr. John Maxwell Avas convicted of violating tfie prohibition laiv, and fie appeals. It appears from tfie testimony that Abbott, tfie principal Avitness for tfie sate, Stone, and other witnesses. were employed in tbe Profile Cotton Mills, and that tbe officers of tbe mill were endeavoring to break np tigers about it.

Violating Prohibition Law. Appeal from Montgomery City Court. Heard before Hon. Armstead Brown. Gus Moore was convicted of violating the prohibition laws and be appeals. Counsel discuss the errors noted, with the insistence that prejudicial error intervened, but they cite no authorities in support thereof.

Violating Prohibition Law. Appeal from Walker Law and Equity Court. Heard before Hon. T. L. Sowell. Alf Wrigbt was convicted of crime, and on appeal tbe judgment was reversed with a mandate to tbe court below to reseiatence the defendant in accordance with law. From a sentence to hard labor pronounced in pursuance to the mandate. (See 9 Ala. App. 79, 64 South. 173) the defendant appeals.

Violating Prohibition Law. Appeal from Morgan Law and Equity Court. Heard before Hon. Thomas W. Wekt. Jim Gorden, etc., was convicted of violating the prohibition law, and he appeals.

Violating Prohibition Law. Appeal from Shelby County Court. Heard before Hon. E. S. Lyman. Tom Bush was convicted of violating the prohibition law, and he appeals.

Violating Prohibition Lam. Appeal from Montgomery City Court. Heard before Hon. Armstead Brown. James L. Harwell was convicted of violating tbe prohibition law, and he appeals. The facts sufficiently appear from the opinion.

Violating Prohibition Law. Appeal from Coffee Circuit Court. Heard before Hon. H. A. Pearce. Will Thomas was convicted of violating the prohibition law, and he appeals. The judgment is void, and the appeal should be dismissed, and the defendant discharged. — Moss v. The State, 140 Ala. 199. Counsel discuss other assignments of error, but they cite not authority in support thereof.

Violating Prohibition Law. Appeal from Shelby Circuit Court. Heard before Hon. Hugh D. Merrill. Frank Harrison, Jr., was convicted of violating the prohibition laws, and he appeals.

Violating Prohibition Law. Appeal from Shelby Circuit Court Heard before Hon. Hugh B. Merrill. Frank Harrison, Jr., was convicted of violating the prohibition law, and he appeals. The court should have given the charges requested by the defendant, as only one .witness testified against him . — Adams v. The. State, 57 South. 591; Jackson v. The State, 57-South. 596; Naugher v. The Stale, 60 South. 459.

Viola-ting Prohibition Load. Appeal from Lauderdale Circuit Court. Heard before Hon. A. H. Alston. Aubry Chandler was convicted of violating the prohibition laws, and he appeals. The following charges were refused to defendant: (1) General affirmative charge. .(2) Affirmative charge as to an offer to sell. (3) Affirmative charge as to selling. (4) Affirmative charge as to aiding and abetting or acting as assisting friend.

<p>1. IntocsicaMng Liquors; JSvklence; Sufficiency. — Where the evidence was sufficient to afford a basis for an inference that the defendant was guilty of violating the prohibition law, the defendant was not entitled to have all the evidence excluded, as its sufficiency to sustain a conviction was for the jury.</p> <p>2. Same. — Where there was evidence that the prohibited liquor was kept in a store or shop, the court properly instructed the jury that proof beyond a reasonable doubt, and to a moral certainty that defendant bad the prohibited -liquor on bis premises, and that such premises were not used exclusively as a dwelling, would be prima -facie evidence that he kept the liquor for sale, or with intent to sell the same contrary to law, under section 4, Acts 1909, p. 64.</p> <p>3. Same; Instruction. — The charge asserting that if defendant’s only connection with the prohibited liquor consisted in depositing a package behind a counter, without knowledge or notice of its contents, and in changing a dollar for the negro who sold- it, and that, if he in no way aided in the sale or delivery of the liquor, the jury should find for the defendant, should have been given.</p> <p>4. Charge of Court; Want of Bvidence. — There is no obligation resting upon a trial court to instruct that there is or is not evidence of certain facts.</p>

Violating Prohibition Law. Appeal from Morgan Law and Equity Court. Heard before Hon. Thomas W. Wert. John Swope was convicted of violating the prohibition law, and he appeals. The witness against the defendant was himself an accomplice and defendant could not be convicted on his uncorroborated testimony. —Clark’s Criminal Law, 99; Encyc. of Evi. 98; Marler v. The Plate, 67 Ala. S. C. 68 Ala. 580.

Habeas Corpus. Appeal from Tuscaloosa County Court. Heard before Hon. H. B. Foster. Porter Crews was sentenced to the penitentiary for a term of three years and brought habeas corpus to be discharged on the theory that the time he was out on bail, pending an appeal, should be deducted from the term of his sentence. From an order discharging petitioner from custody, the state appeals.

Habeas Corpus. Appeal from Andalusia City Court. Heard before Hon. Ed. T. Albritton. Joe F. Thames petitioned for bis discharge from custody, on habeas corpas, and from an order denying the writ, he appeals. It is a well known rule that a mere recital of the verdict of guilt and a confession of judgment is not sufficient.

Habeas Corpus. Appeal from Houston Probate Court. Heard before Hon. A. C. Crawford. C. C. Bush brings babeas corpus for bis discharge, and, decree being entered discharging him, the State appeals.

Abusive or Insulting Language. Appeal from Jackson Circuit Court. Heard before Hon. W. W. Haralson. Budd Talley was convicted of using abusive, insulting or obscene language in tbe presence or bearing of a woman, and be appeals. When tbe intent is tbe material issue in tbe case, a party may be asked tbe direct question as to wbat was bis intent at tbe particular time. — 115 Ill. App. 549; 63 Md. 239; 69 N. Y. 101; 62 Wis. 251; 8 Fed. 231; 153 Mass. 148.

Failure to Deliver Telegram. Appeal from Gadsden City Court. Heard before Hon. John H. Hisquh. Action by E. Nail against tbe Postal Telegraph-Cable Company, for damages for failure to deliver telegram. Judgment for plaintiff, and defendant appeals. The facts and pleading sufficiently appear in the opinion.

Automobile Accident. Appeal from Jefferson Circuit Court. Heard before Hon. C. B. Smith. Action by Tom Milligan against W. G. Patterson for injuries suffered in an automobile accident. Judgment for plaintiff and defendant appeals. Negligence of a plaintiff wbicb proximately contributes to bis injury bars bis right of recovery. — Ala. S. & W. Go. v. Tallant, 165 Ala. 521; 29 Cyc. 507; So. Ry. v. Morgan, 54 South. 626.

Failure to Deliver Freight. Appeal from Selma City Court. Heard before Hon. J. W. Mabry. Action by T. U. Jones against the Louisville & Nashville Railroad .Company. Judgment for plaintiff for |242.60, and defendant appeals. The amount claimed in the complaint was $1,100. There was verdict and judgment for $242.60.

Delay in Delivery of Freight. Appeal from Birmingham Ctiy Court, Heard before Hon. John H. Miller. Action by I. S. Brothers against The Illinois Cent. R. R. Co. for damages for failure to promptly deliver freight. Judgment for plaintiff and defendant appeals.

Damages for Delay in Delivery of Goods. Appeal from Walker Circuit Court. Heard before Hon. J. J. Curtis. Action by J. R. Kilgore & Son against tbe Illinois Central Railroad Company, for damages for failure to deliver and for delay in delivering certain live ¡stock. Judgment for plaintiff, and defendant appeals. The complaint and the pleas sufficiently appear from the opinion of the court.

Damage for Failure to Deliver Goods. Appeal from Russell Circuit Court. Heard before Hon. Mike Sollie. Action by E. M. Patterson against tbe Central of Georgia Railway- Company for failure to deliver goods. Judgment for plaintiff, and defendant appeals.

Damage to Passenger. Appeal from Autauga Circuit Court. Heard before Hon. W. W. Pearson. V. A. Spenny sues the Mobile & Ohio R. R. Co. for damages for ejecting him while a passenger, under ther circumstances as set out in the opinion. Judgment for plaintiff and defendant appeals. (This cause was taken by certiorari to the Supreme Court where the majority opinion was affirmed. — Spen-ny v. Mobile & 0. R. Go., 68 South. 780.

Injury to Passenger. Appeal from. Walker Circuit Court. Heard before Hon. J. J. Curtis. Action by Mary Herron, by next friend against The Southern Ry. Co. for injuries received as a passenger. Judgment for plaintiff and defendant appeals. Under the. evidence in this case, the court should have directed a verdict for the defendant, and failing therein, to have set aside the verdict that was rendered by the jury.— Southern Ry. Go. v. Herron, in MSS. Sup. Court.

Injury to Servant. Appeal from Montgomery Circuit Court. Heard before Hon. W. W. Pearson. Action by Will Jones against The Atlantic Coast Linet Railroad Co. for damages for injury to plaintiff while employed by the defendant. Judgment for plaintiff and defendant appeals. See brief on former report of this case. See brief on former report of this case.

Injury to Person on Trade. Appeal from Mobile Law and Equity Court. Heard before Hon. Saffold Berney. Action by Walter Burch against the Mobile Light & Railroad Company, for damages for personal injuries. Judgment for plaintiff, and defendant appeals.

Damages for Polluting Stream. Appeal from Tuscaloosa Circuit Court. Heard before Hon. Beenaed Haewood. Action by R. P. Pierce against the Yolande Coal & Coke Company for pollution of a stream. From a judgment for plaintiff, defendant appeals. The substance of complaint sufficiently appears from the opinion, as do sufficient facts for a proper understanding of same.

Trover and Conversion. Appeal from Coosa Circuit Court. Heard before Hon. S. L. Biiewer Action by the Sylacauga Mercantile Company against Robert Argo. Judgment for plaintiff, and defendant appeals. The complaint contained two counts, both of which claim for the conversion of a red mule.

Trover. Appeal from Marshall Circuit Court. Heard before Hon. W. W. Haralson. Trover and case by C. L. Haley against Joe Lowery. Judgment for plaintiff and defendant appeals. It does not appear that the mortgagor had his abode and kept the property mortgaged in the county where the mortgage was recorded, and this proof is essential to make such recordation constructive notice to purchasers for value. Section 3376, Code 1907, and authorities there cited.

Trespass and Trover. Appeal from Gadsden City Court. Heard before Hon. John H. Disque. Trespass' and trover by Pearl Bland against W. J. Mitchel. Judgment for plaintiff and defendant appeals. A general objection is sufficient where the evidence offered is illegal or irrelevant upon its face. — Pool v. Devers, 30 Ala. 672; Richards v. Bestor, 90 Ala. 352.

Trover. Appeal from DeKalb Circuit Court. Heard before Hon. W. W. Haralson. Trover by John Smith against E. T. Davenport and another, doing business as E. T. Davenport & Company. From judgment for defendant, plaintiff appeals.

Malicious Prosecution. Appeal from Anniston City Court. Heard before Hon. Thomas W. Coleman, Jr. Jessie Hand, by next friend, brought suit against Calvin Cobb for damages for a malicious prosecution, which suit was revived in the name of J. W. Hand, as administrator. From a judgment for plaintiff, defendant appeals.

Deceit. Appeal from Anniston City- Court. Heard before Hon. Thomas W. Coleman,, Jr. Action of deceit by D. B. Lacy & Son against the Kil-by Locomotive & Machine Works. From a judgment for plaintiff, defendant appeals. The pleadings and facts sufficiently appear from the opinion, as does the oral charge of the court excepted to.

Damages for Gutting Off Water Supply. Appeal from Jefferson Circuit Court. Heard before Hon. Thomas W. Wert. Action by K. K. Kirkland against The Birmingham Water Works Co., for damages for cutting off his water supply. Judgment for plaintiff and defendant appeals. The Supreme Court has recently construed the contract under which recovery is sought and held against the views taken by the trial court.

Death Action. Appeal from Birmingham City Court. -Heard before Hon. Chas. W. Ferguson. Action by J. T. Jones, as administrator, against the Birmingham. Railway Light & Power Co. for damages for the death of his intestate, a child, by being run over by a street car of the defendant. From a judgment for plaintiff granting insufficient' relief, plaintiff appeals.

Killing Animals'.- Appear from Jackson Circuit Court. Heard before Hon. W. W. Haralson. Action by J. W. Hartman against The Southern Railway Company for damages for killing animals. Judgment for plaintiff and defendant appeals. The court erred in charging that the burden of proof was on the defendant to show that there was no negligence. — L. & N. R. R. Oo. v. Christian Co., 150 Ala. 390; Same v. Mertz & Co., 149 Ala. 561; B. R, L. & P. Co. v. Landrum, 158 Ala. 192.

Damages foriKUlmg_ Dog. Appeal from DeKalb Circuit Court. i Heard before Hon. W. W. Haralson. \ Action by G-. 0. Kershaw against J. S. McKown for1' damages'for killing a dog. Judgment for defendant and plaintiff appeals. The court was in error in overruling demurrers to defendant’s plea. — Means v. MorgaAV, 2 Ala. App. 547; 53 N. C. 35, 65 N. C. 416; 7 Ill. App. 354; 2 Cyc. 416. No brief reached the reporter.

Divulging Contents of Telegrams. Appeal from Morgan Law and Equity Court. Heard before Hon. Thomas W. Wert. Action by R. L. Worley against Tbe Western Union Tel Co-, for divulging tbe contents of a message willfully or wantonly. Judgment for plaintiff and defendant appeals. Tbe complaint was not proven and tbe court should have directed a verdict for tbe defendant. — W. U. Tel. Co. v. Tris sal, 98 Ind 566; 3 South. 566.

Assumpsit. Appeal from Montgomery City Court. Heard before Hon. Armstead Brown. Assumpsit by Irene Davis against the Capital Security Company, to . recover the amount paid upon a contract, on the grounds of false and fraudulent repre-. sentatións made by the agent, as to the terms of the contract. Judgment for plaintiff and defendant appeals.

Forfeited Bail Bond. Appeal from Autauga Circuit Court. Heard before Hon. W. W. Pearson. Scire facias on a forfeited bail bond by the State of Alabama, against P. H. Graham and others. From the judgment rendered the sureties appeal. The judgment was more than the face of the bond, and the sureties aré liable for no more than the face of their undertaking. —State v. Elrod, 31 Ala. 395.

Assumpsit. Appeal from Cullman Circuit Court. Heard before Hon. D. W. Speake. Assumpsit by John Gibbs against W. L. King and otters, on a promissory note. For a judgment dismissing as to King, but rendered against the other defendants, they appeal.

Assumpsit. Appeal from Birmingham City Court. Heard before Hon. C. C. Nesmith. Joseph Paffe sued R. L. McEntire and another and recovered judgment on October 30th, 1912, rather verdict was rendered on that date.

Assumpsit. Appeal from Montgomery City Court. Heard before Hon. Gaston Gtjntee. Action by the Commercial Germania Trust & Savings Bank of New Orleans against Horace Hood, as sheriff, and others. Judgment for plaintiff and defendants appeal. Only a special property in the goods passed to the plaintiff in this case, subject to be divested by the acceptance and payment of the draft. — American Nat.

Assumpsit. Appeal ‘from Dallas Circuit Court. Heard before Hon. B. M. Miller. Action by S. H. Watts against The American Automobile Ins. Co., upon a fire insurance policy covering an automobile, which was burned. Judgment for plaintiff and defendant appeals. Contracts of insurance are construed according to the sense and meaning of the terms employed by the parties. — Bay v. Some Ins. Go., 58 South. 549; Continental Casualty Co. v. Oggurn, 57 South. 852.

Assumpsit. Appeal from Montgomery Circuit Court. Heard before Hon. W. W. Pearson. Assumpsit by the Albany Warehouse Company against the F. B. Fisk Cotton Company. Judgment for defendant on demurrer, and plaintiff appeals.

Assumpsit. Appeal from Coosa Circuit Court. Heard before Hon. A. H. Alston. Assumpsit by Tbe Lowe & Samford Groe. Co. against A. Y. Adamson and G. L. Adamson.

Assumpsit. Appeal from Jefferson Circuit Court. Heard before Hon. E. C. Crow.- Assumpsit by The Phillips-Buttorff Mfg. Co. against J. B. Hanby. There was judgment by default with writ of inquiry, and defendant’s motion to set aside said judgment and reopen tbe case, being denied, be appeals. Tbe complaint was not sufficient to support a judgment by default. — Section 4143, Code 1907, and cases cited. Tbe excuse offered was good. — 23 Cyc. 946.

Assumpsit. Appeal from St. Clair Circuit Court. Heard before Hon. J. E. Blackwood. G. E. O’Barr sued one Turner in attachment, with garnishment to the Mitchell Mountain Coal & Iron Co., and the American Trust & Saying Bank, assignee of Turner, claimed the fund. There was judgment for plaintiff and the claimant appeals.

Assumpsit. Appeal from Mobile Law and Equity Court. Heard before Hon. Saffold Berney. Action by John M. Clancy against James P. Taylor and others. Judgment for defendants, and plaintiff appeals.

Assumpsit. Appeal from Montgomery Circuit Court, Heard before Hou. W. W. Pearson. Action by Hartwell Douglass, as agent against Bethea Starr Packing & Shipping Company, for rent, in which the defendant sought to set off certain damages, because of leaks. There was judgment for plaintiff and defendant appeals. A subsequent promise by one party will support a new promise to comply with the terms of the old contract. —Turlington v. Slaughter, 54 Ala. 195.

Assumpsit. Appeal from Coffee Circuit Court. Heard before Hon. H. A. Pearce. Assumpsit by H. L. Martin against J. E. Henderson to recover for the value of services rendered as an at' torney. Judgment for defendant and plaintiff appeals.

Assumpsit. Appeal from Houston Circuit Court. Heard before Hon. H. A. Pearce. Blackman & Co., had garnishment issued do reach funds in the hands of one Newton, and R. E. Collier intervened as claimant of said fund. From a judgment for claimant, the plaintiff appeals.

Assumpsit. Appeal from Mobile Law and Equity Court. Heard before Hon. Saeeold Berney. Assumpsit by B. F. Hardeman against J. W. Chandler. Judgment for plaintiff and defendant appeals. No one can be sued outside of the precinct of his residence, or in that in which the debt ivas created, or the cause of action arose. —-Section 4608, Code 1907; Glose v. Blalce, 56 Ala. 387; Western Railway Go. v. Laserous, 88 Ala. 458.

Assumpsit. Appeal from Houston Circuit Court. Heard before Hon. H. A. Pearce. Assumpsit by tbe Dickerson & Baker Lumber Co. against C. H. Moreland. Judgment for plaintiff and defendant appeals.

Assumpsit. Appeal from Pike Circuit Court. Heard before Hon. H. A. Pearce. Action by A. S. Douglass against J. M. Davis to recover the value of cotton alleged to be due as rent. Judgment for plaintiff and defendant appeals. Under the facts in this case, the debt was payable in cash. — Ramil v. Flowers, 63 South. 994.

Assumpsit. Appeal from Tallapoosa Circuit Court. Heard before Hon. S. L. Brewer. Action by F. A. Salmon against the Tallapoosa County Bank to recover a general deposit, made in the name of a firm. Judgment for plaintiff, and defendant appeals. A partnership is an entity, and the legal title to its property resides in the partnership and not in the individuals composing the firm.- — Gossett v. Morrow, 58 South. 799; Salmon v. Salmon, 60 South. 887.

Assumpsit. Appeal from Madison Circuit Court. Heard before Hon. D. W. Speake. Action by W. M. Watkins against George A. Neal, and others, in assumpsit, and for deceit. There was judgment for plaintiff by default, and the court proceeded to award the damages, without the intervention of a jury. From such judgment the defendants appeal.

Assumpsit. Appeal from Blount Circuit Court. Heard before Hon. J. E. Blackwood. Assumpsit by W. S. Wiles against A. M. Hines to recover a payment voluntarily made. Judgment for plaintiff and defendant appeals.

<p>1. Evidence; Presumptions. — A thing proven to have existed is presumed to have continued until the contrary is shown; hence, it is unnecessary to show that an ordinance remained in effect, since under section 1258, the ordinance took effect from and after its publication.</p> <p>2. Municipal Corporations; Ordmamces; Violation. — In a prosecu- • tion for violating a municipal ordinance prohibiting the selling or keeping of liquors, evidence that liquors in unusual quantities and in packages convenient for sale were found concealed in defendant’s house, together with evidence that he had made a sale at his home a short time previous, was sufficient on which to submit the case to the jury.</p> <p>3. Same; Enactment; Ordaining Clause. — Whether or not the provisions of section 1252 are merely directory, yet under section 1259, Code 1907, the book of ordinances was prima facie proof of the validity of the ordinance and the burdén was on the defendant to rebut the presumption afforded by the statute, and to show that the ordinance was not properly enacted.</p> <p>4. Same; Other Offenses. — On a charge of keeping or selling liquor in violation of a municipal ordinance, evidence of a previous sale, in connection with other evidence tending to show a keeping, was admissible to show the purpose of the keeping,.and to rebut the presumption that they were kept for private use.</p>

Violating Municipal Ordinance. Appeal from Tuscaloosa County Court. Heard before Hon. Henry B. Foster. Will Lane was convicted of violating an ordinance of the city of Tuscaloosa, prohibiting the keeping or selling of intoxicating liquors. On his appeal to the .county court he was again convicted, and brings the case here. The same contentions are made, and the same authority cited as in the case of Gharlie Lane v. The Gity of Tuscaloosa, infra.

Violating Municipal Ordinance. Appeal from Autauga Circuit Court. Heard before Hou.' W. W. Pearson. J. W. Hill was convicted in the circuit court for a violation of an ordinance of the city of Prattville, and he appeals. Counsel discuss the errors assigned with citation of authorities in support of his contention that a reversal should follow.

Violating Mwnidpal Ordinance. Appeal from Tuscaloosa County Court. Heard before’ Hon. Henry B. Foster. Will Brown was convicted of violating an ordinance of the city of Tuscaloosa prohibiting the selling or keeping of intoxicating liquors, and he appeals.

<p> Violating Municipal Ordinance. </p> <p>Appeal from Autauga Circuit Court.</p> <p>Heard before Hon. W. W. Pearson.</p> <p>From a conviction in the recorder’s court of the violation of the municipal ordinance prohibiting the sale, etc., of intoxicating liquors, John Glenn appealed 'to the circuit court, where he was again convicted and he brings the appeal here.</p> <p>The court was in error in his charge to the jury wherein he stated the jury were authorized to convict if they were reasonably satisfied of his guilt. — Barron v. City of Anniston, 157 Ala. 399; White v. City of Anniston, 161' Ala. 662.</p> <p>No brief reached the Reporter.</p>

Violating Municipal Ordinance. Appeal from Andalusia City Court. Heard before Hon. Ed. T. Albritton. Tim Feagin was convicted in the City Court of Andalusia of violating an ordinance of said city, prohibiting the sale of intoxicating liquors, he having brought the case there by appeal from the recorder’s court, and he appeals here.

Violating Municipal Ordinance. Appeal from Tuscaloosa County Court. Heard before Hon. Fred Fite, Special Judge. Andrew Roe was convicted of violating a city ordinance, and be appeals.

Violating Municipal Ordinance. Appeal from. Tuscaloosa County Court. Heard before Hon. Henry B. Foster. Alice Taggett was convicted in tbe recorder’s court for violating a municipal ordinance of tbe city of Tuscaloosa, and sbe appealed to tbe county court where sbe was again convicted and brings her appeal here. Tbe same insistence on tbe same authorities are made here as are made by counsel in tbe case of Charlie Lane v. City of Tuscaloosa, infra.

<p>Habeas Corpus; Rearrest; Forfeiture of Appeal Bond from Recorder’s Court. — Construing sections 1218, 1451, 6287, 6728, and 6744, Code 1907, it is held that the circuit court, or courts of like jurisdiction, may award a writ of arrest for one appealing thereto from a conviction in the recorder’s court for violation of the city ordinance, after forfeiture of his appeal bond, and the entry of forfeiture against him and his bondsmen; and that such a defendant was not entitled to habeas corpus for his discharge from such rearrest. ! II . u)</p>

Violating Municipal Ordinance. Appeal from Mobile City Court. Heard before Hon. O. J. Semmes. W. M. Dole was convicted for violating an ordinance of the city of Mobile, and he appeals. Counsel discusses the errors assigned, with citation of authority, but in view of the opinion it is not deemed necessary to here set it out.

Taxation. Appeal from Anniston City Court. Heard before Hon. Thomas W. Coleman, Jr. Proceedings by the State of Alabama to collect certain license taxes from the Anniston Electric & Gas Co. Judgment for the state and the defendant appeals.

Taxation. Appeal from Montgomery Circuit Court. Heard before Hon. W. W. Pearson. Proceedings by the state to collect certain license from T. E. Lovejoy. Judgment for defendant and the state appeals. No brief reached the reporter. No brief reached the reporter.

Mandamus. Original petition in Court of Appeals. The state on the relation of the city of Birmingham applies for a mandamus or a writ of procedendo to issue to Hon. William E. Fort, Judge of the Criminal Court of Jefferson county, to require him to- return or certify back to the recorder’s court for enforcement a judgment there rendered, from which the defendant appealed and forfeited his appeal bond by a failure to appear and answer the charges, on which a final forfeiture…

Mandamus. Original petition in Court of Appeals. Petition by tbe state on tbe relation of Samuel Wilder, for mandamus to compel tbe Hon. C. B. Smith, as Judge, to reinstate a cause dismissed, and to enter an order of revivor against a personal representative.

New Trial. Appeal from Hale Law and Equity Court. Heard before Hon. Charles E. Waller. Windham' & Co. sued Stewart Veneer Co., and obtained a judgment, and on motion for a new trial, tbe court determined that tbe defendant ivas not entitled to have tbe verdict set aside, and tbe defendant appeals.

Detinue. Appeal from DeKalb Circuit Court. Heard before Hon. W. W. Haralson. Detinue by J. O. Blackburn and another against W. J. Carroll. Judgment for plaintiffs, and defendant appeals. The action was for an engine, boiler, and sawmill, and for tbe value of the hire and use thereof. The jury found by their verdict: We, the jury, find the issue in favor of plaintiffs- for the property sued for, and we find the amount due plaintiffs on the conditional sale to be $58.80.

Action for Penalty. Appeal from Autauga Circuit Court. Heard before Hon. W. W. Pearson. Proceeding's by J. M. Sorrell against V. A. Spenney, sheriff for the penalty for failure to make return of an execution. Judgment for plaintiff and the defendant appeals. Acceptance of payment by a plaintiff is a discharge of the sheriff for a breach of duty growing out of an execution in favor of the plaintiff. — Governor v. Powell, 10 Ala. 544.

Detinue and Trover. Appeal from Jefferson Circuit Court. Heard before Hon. E. C. Crow. Detinue by G. W. Robinette against D. B. Tidwell. Judgment for plaintiff, and defendant appeals. The original action was in detinue, and the claim was for the recovery of a cow, together with the hire and use thereof. To this was added the count in trover for $100 over the objection of defendant.

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. Gaston Gunter.</p>

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. Armstead Brown.</p>