Volume 13 — Alabama Appellate Reports

<p>1. Homicide; Self-Defense; Provocation. — Where defendant’s own evidence showed that he went up to deceased, who was quietly standing in a house where a dance was in progress, and asked him if he meant what he said — defendant having heard that deceased had threatened to kill him — whereupon the fatal encounter immediately ensued, the defendant provoked the difficulty, and cannot invoke the right of self-defense.</p> <p>2. Same; Instructions. — Where the evidence shows without conflict that defendant could not invoke the defense of self-defense, any error in charges as to the elements of self-defense is harmless.</p> <p>3. Appeal and Error; Review; Bill of Exceptions. — Where the bill of exceptions did not set out the charge, a statement therein, relative to such charge, that the court defined and explained to the jury the law of self-defense, must be taken to mean that the court correctly defined and explained the law.</p> <p>4. Charge of Court; Inapt. — Where in one part of the charge the court correctly stated the law of self-defense, error in the charge that defendant must avoid the difficulty if possible and retreat if possible, without any qualification of the word “possible” would not require a reversal, since it rendered the charge misleading at most, and the duty was on defendant to correct any misleading tendency by requesting counter instructions.</p>

Murder. Appeal from Cullman Circuit Court. Heard before Hon. D. W. Speake. Willis Bone was convicted of manslaughter in the first degree, and he appeals. Defendant was charged with killing Joe Walker by shooting him with a gun.

Murder. Appeal from Geneva Circuit Court. Heard before Hon. H. A. Pearce. Rudolph Jones, alias, etc., was convicted of murder in the second degree, and he appeals.

<p>1. Et.omicide; Evidence;.Former Difficulty. — Where defendant admitted the killing, but claimed self-defense, he should have been permitted-to testify whether.deceased shot at him on the day before the killing, and whether some time prior thereto deceased had drawn a gun on him and threatened to kill him, in the presence of certain persons; it being competent under such circumstances to show such previous difficulties, and to state their general character so as to show whether they were grave or trivial.</p> <p>2. Same. — Where the court stated that defendant could show prior-threats, but not acts and details of the former difficulty, the error in excluding such testimony was not cured by the faet that some of the matters were elicited on the subsequent examination of defendant. • ■ - .</p> <p>3. Appeal and Error; Harmless Error; Evidence. — If it was error to refuse to admit in evidence certain warrants sworn out by defendant against deceased, such error was-cured by- subsequently admitting the warrant.</p>

<p>1. Evidence; Judicial Notice; Term of Court. — Where the caption of the record showing' the organization of the court, at which this trial was had was in the approved form, except that it stated that it was at a regular, special or adjourned term of the court, in the alternative, and the' judgment entry fixed the date' of the trial, the court could determine that the trial was had at a regular term as it takes judicial notice of the time prescribed by law for the regular term of the circuit and city courts.</p> <p>2. Homicide; Evidence;'Threats.- — Where it appeared that defendant had told deceased that he would whip his son, and deceased had stated that he would have to whip him first, evidence was admissible from the son that shortly after his father had made such remark,-the defendant stated to the son that he' was going home and coming back, and that the son would regret what he had done, the deceased being still present and hearing the threat; the threat being admissible as a declaration of hostility against deceased in'view of the statement by deceased that he would protect his son, and as explanatory of the purpose of defendant in returning later with the gun.</p> <p>’’3. Witnesses; Examination; Answer. — Where character witnesses for defendant were asked by' the state if the defendant did not have the general reputation of a drunkard, and they answered, “Yes, sir, he gets drunk,” such answer was unresponsive to the question, and upon-proper motion the latter part 'of the said answer'should and would have been excluded.</p> <p>4. Evidence; Character; Particular Acts. — -Where a character witness for-defendant on being asked whether defendant did-not'have the reputation of a drunkard, answered, “Yes sir, he gets drunk,”* such answer was improper as a statement of a particular fact, and not of reputation; since-evidence that defendant occasionally gets intoxicated is not evidence that his character is bad, and so does not impeach the testimony of the witness, that his character is good!</p> <p>5. Same; Judicial Notice; Drunlcermess. — The- courts take judicial notice, as a matter of common knowledge, that habitual drunkenness tends to dethrone character and to destroy the moral fibre and makeup of a man, and that it-will do so if persisted in.</p> <p>6. Same; Character; Drunlcard. — Where defendant’s character witnesses had' testified to defendant’s good character, it was competent for the state to show by them that defendant’s general reputation was that of a drunkard; not one who occasionally gets drunk, but one who habitually drinks strong liquors immoderately — a toper,' a sot.</p> <p>7. Same; Particular Acts. — A character witness on cross-examination may be asked whether he has not heard of certain acts of the party, tending to show that his character is not good, and so long as the questions and answers in that regard are confined to reputation or rumors as to such matters, and are not extended to involve a statement by the witness of his personal knowledge of the truth of the act, such examination is proper.</p> <p>8. Appeal and Error; Review; Reservation of Ground. — A party objecting to evidence must assign grounds therefor, and a general exception taken to a partially defective answer, cannot be made the predicate for error.</p> <p>9. Same. — Where it was properly shown that defendant had the general reputation of being a- drunkard, the admission of the improper answer on .cross-examination of a character witness for such defendant, that defendant got drunk, was not error justifying a reversal under rule 45, Supreme Court Practice, as it did not probably affect defendant’s ease injuriously. • ■ -</p> <p>(This case was reviewed by tbe Supreme Court on certiorari to tbe Court of Appeals, and tbe writ was denied. See 193 Ala. 677, 69 South. 1018. — Reporter.)</p>

Assault With Intent to Murder. Appeal from Chambers Circuit Court. Heard before Hon. S. L. Brewer. Aléx Kelly was convicted of assault with intent to murder, and he appeals. The following charges were refused to defendant: (1) If you believe from all the evidence in this case that defendant fired the shot to scare Eugene Robinson, and not with the intent to. take his life, then you cannot convict defendant of assault with intent to murder as charged in the indictment.

Murder. Appeal from Marengo Law and Equity Court. Heard before Hon. Edward J. Gilder. William Banks was convicted of murder in the second, degree and lie appeals.

Murder. Appeal from Bibib Circuit Court. Heard before Hon. B. M. Miller. Jim Boy Moton was convicted of manslaughter in the first degree, and he appeals. The evidence tends to show that the defendant killed Amos Meredith by shooting him with a pistol; the killing occurring at the Louisville & Nashville station at Bloc-ton, in Bibb county, soon after the defendant and the deceased had gotten off an excursion train at that point.

<p> Murder. </p> <p>Appeal from Jacksou 'Circuit Court.</p> <p>Heard before Hon. W. W. Haralson.</p> <p>Furman Harper was convicted of murder and lie appeals.</p>

Murder. Appeal from Geneva Circuit Court. Heard before Hon. H. A. Peap.ce. Henry Thomas was convicted of manslaughter and he appeals. The facts sufficiently appear from the opinion. The following charges Avere refused the defendant: (1) If at the time in question the defendant Avas a guest or visitor in the home of Mary Ann S'cott, he was under no duty to retreat, if deceased undertook to shoot him, provided defendant was free from fault in bringing on the difficulty.

<p> Murder. </p> <p>Appeal from Shelby Circuit Court.</p> <p>Heard, before Hou. Hugh D. Merrill.</p> <p>Bill Wilson was convicted of murder in the second degree and he appeals.</p>

Murder. Appeal from Franklin Circuit Court. Heard before Hon. C. P. Alm'on. William Bullington was convicted of manslaughter, and he appeals.

Murder. Appeal from Chambers Circuit Court. Heard before Hon. S. L. Brewer. Raymond Campbell was convicted of manslaughter in the first degree, and he appeals. The facts sufficiently appear. The following charges were refused the defendant: (1) If, after considering the evidence in this case, the jury have a reasonable doubt as to whether the killing of Corley was the result of an accident, you should find the defendant not guilty.

<p>1. Atipeal and Error; Harmless Error; Evidence. — Where a witness without objection subsequently answered the question, the previous sustaining of an objection to the question was rendered harmless.</p> <p>2. Evidence; Opinion. — The witness could only state the facts, and could not give his conclusion as to whether a defendant could have turned and got away from deceased without getting cut; it being for the jury to draw the conclusion.</p> <p>3. Same.- — Whether or not a defendant did or said anything to bring on the difficulty was a question seeking the witness’s opinion.</p> <p>. 4. Trial; Reception of Evidence; Showing Relevancy. — To make the exclusion of evidence on its face erroneous, the relevancy must be shown to the court.</p> <p>5. Same; Reception of Evidence; Repetition.- — The court may properly sustain objection to a question which merely calls for a repetition of what the witness had just stated.</p> <p>6. Evidence; Flight. — The flight of defendant may be shown as an incriminating circumstance; and it may properly be shown that defendant had left the state as well as the community.</p> <p>7. Same. — Any conduct of a defendant tending to show flight as a consciousness of guilt, is admissible, however weak and inconclusive; its probative value being for the jury.</p> <p>8. Defendant; Cross-Examination.- — -Where defendant offered himself as a witness, it was proper to show by him on the cross that he carried a pistol to the scene of the difficulty, where he-went confessedly looking for deceased to demand the repayment of a loan in dispute.</p> <p>9.' Same; Impeachment; General Character. — Where a defendant offers himself as a witness in his own behalf, the state may offer evidence of his general character in the community in which he lived, as affecting his credibility.</p> <p>10. Appeal and Error; Review; Showing Error. — Before a defendant can complain of the overruling of an objection to a question, it must be shown that the question was answered.</p> <p>■ 11. Homicide; Instructions. — Malice not being a necessary ingredient of all the offenses comprehended in an indictment for murder, a charge making the finding of malice necessary to a conviction, is bad.</p> <p>12. Same; Degree of Proof; Malice. — To justify a conviction, the jury need not have an absolute, unqualified belief of defendant’s malice, but only a belief beyond a reasonable doubt.</p>

<p> Murder. </p> <p>Appeal from Crenshaw Circuit Court.</p> <p>Heard before Hon. A. H. Alston.</p> <p>Dozier Sexton was convicted of manslaughter in the first degree, and he appeals.</p>

<p> Murder, </p> <p>Appeal from Limestone Circuit Court.</p> <p>Heard before Hon. D. W. Speaks.</p> <p>Ed Harris Aims convicted of manslaughter and he appeals.</p>

Murder. Appeal from Tuscaloosa County Court. Heard before Hon. Bernard Harwood. Tossie King was convicted of manslaughter, and he appeals. The facts sufficiently appear. The following charge was given for the state: (3) The court charges the jury that, to make the plea of self-defense available, the defendant must be Avithout fault.

<p>Appeal and Error; Escape; Dismissal. — Where defendant pending the appeal escapes from custody and becomes a fugitive from justice, his appeal will not be entertained.</p>

Murder. Appeal from Marshall Circuit Court. Heard before Hon. W. W. Haralson. Buck Roden was convicted of manslaughter, and he appeals. The facts sufficiently appear from the opinion.

Murder. Appeal from Houston Circuit Court. Heard before Hon. H. A. Pearce. Peyton Terry was convicted of manslaughter in the first degree, and he appeals. The facts sufficiently appear. In its oral charge to the jury the court says: “Now as I said in my first instruction to you, the question to you is, What are my convictions, based upon the testimony in the case? Is it my judgment, after weighing and considering all of the testimony in case, that the defendant is guilty?

Assault With Intent to Murder. Appeal from. Elmore Circuit Court. Heard before Hon. W. W. Pearson. Sid Williams was convicted of an assault with intent to murder one Boddie, and be appeals. Tbe facts sufficiently appear.

Murder. Appeal from Winston Circuit Court. Heard before Hon. C. P. Almon. Lutber Johnson was convicted of murder, and he appeals. (This case was reviewed by the Supreme Court on certiorari-and the writ denied. See 193 Ala. 678, 69 South. 1020. — Reporter.) The facts sufficiently appear.

Murder. Appeal from Houston Circuit Court. Heard before Hon. H. A. Pearce. Malcolm Ingram was convicted of manslaughter in the first degree, and he appeals. The charge was the killing of Zollie Bryson by shooting him with a gun. The state asked the witness Powell if Ingram made any threats at that time, and the witness answered, “Why, Bryson was cussing at him.” This answer, on motion of the state, was excluded.

Assault and Battery. Appeal from Franklin Circuit Court. Heard before Hon. C. P. Almon. Oce Ezzell was convicted'of assault and battery, and he appeals.

<p> Assault With Intent. </p> <p>Appeal from Crenshaw Circuit Court.</p> <p>Heard before Hon. A. E. Gamble.</p> <p>Frank Robbins was convicted of an assault, and he appeals.</p>

Assault and Battery. Appeal from. Cberokee Circuit Court. Heard before Hon. W. W. Haralson. Bill John Smith was convicted of assault, and he appeals.

<p> Assault and Battery. </p> <p>Appeal from Anniston City Court.</p> <p>Heard before Hon. T. W. Coleman, Jr.</p> <p>Dock Murray, was convicted of an assault and battery Avitb a weapon, and he appeals.</p> <p>The facts sufficiently appear. The first two charges are the affirmative charges. The third charge in the record is as follows: A “reasonable doubt” is a doubt for which a reason can be given and if any part of the evidence in the case, considered in connection with all the evidence, convinces you that the defendant was justified in striking when and as he did, this would raise a reasonable doubt, as to' his guilt, and he would be entitled.</p> <p>(4) If you believe from the evidence that it was necessary, or apparently necessary, for the defendant to use his knife in the manner that he did to protect himself against bodily injury, that he could not retreat without apparently increasing his danger, and that he used only such force as was necessary under the circumstances, then you should acquit.</p> <p>(5) The law does not require that a man be beat up or struck down, and where a man is free from bringing on a difficulty, and it is necessáry, or apparently necessary, to strike in order to protect himself against bodily harm, and he uses only such force as is necessary under the circumstances, he is not guilty of any offense under the law.</p> <p>(6) Where a man is free from fault in bringing on the difficulty, he is justified in using such violence as is necessary to protect himself against bodily harm, and if you believe that in this instance defendant Murray was free from bringing on the difficulty, and that he used only such evidence as was reasonably necessary to protect himself against bodily harm, then you should acquit him.</p> <p>(7) You may in weighing the evidence take into consideration the fact that ivitnesses Barton and Mrs. Buchannon are closely related.</p>

Assault and Battery. Appeal from Coosa Circuit Court. Heard before Hon. S. L. Brewer. Lee Pearson was convicted of an assault with a weapon, and he appeals. The defendant was charged with having assaulted Hilliard Palmer with intent to murder him. The weapon used was a piece of scantling about three inches wide, two inches thick, and about three feet long.

<p>1. Trial; Objections to Evidence; Time. — Objections to testimony not made until after the witness has answered comes too late.</p> <p>2. Same; Sufficiency. — A general objection to a question may be overruled under rule 33, Supreme Court Practice, without error.</p> <p>3. Animals; Unlawful Killing; Evidence. — Where there was evidence that the hog was found dead in defendant’s field, and that he furnished a gun to a third person and told such third person to kill the hog, and - he did so, the fact that defendant shook down some peaches in the field where the hog was killed about the time he sent such third person with the gun, was admissible not only to show wantonness, but also to show defendant’s connection with the killing.</p> <p>4. Witnesses; Cross-Examination; Knoioledge. — The statement of a witness in response to a question on cross-examination, that he did not know a fact except from hearsay, is properly received in evidence.</p> <p>5. New Trial; Denial; Criminal Case. — At the time of the trial of this cause rulings on motion for new trial in a criminal case was not reviewable on appeal.</p> <p>6. Same; Grounds.- — The defense provided in section 6231, Code 1907, that defendant may show in justification or mitigation that the animal was trespassing, is confined to the original trial, and cannot be set up as ground for motion for new trial.</p>

Abusive or Insulting Language. Appeal from Clay County Court. Heard before Hon. E. J. Garrison. John Jordan was convicted of using insulting, obscene or abusive language in the presence or hearing of-females, and he appeals.

Violating Prohibition Law. Appeal from Winston County Court. Heard before Hon. John S. Curtis. Henry Kimbrough was convicted of violating the prohibition law, and he appeals. Charge 2 is as follows: I charge you that, under the evidence in this case, you are authorized to acquit defendant.

<p>1. Intoxicating Liquors; Evidence. — Where the prosecution was for selling liquors, and not for keeping it for sale, and the evidence was positive, two witnesses testifying to it, the testimony of one of them that he saw liquors unloaded at defendant’s place a few days before the sale, was immaterial, and uselessly multiplied the issues to the detriment of defendant.</p> <p>2. Same. — Where the affidavit charged the selling of liquor only, and the witnesses had testified positively to a sale on a certain day, the evidence of a sale on another day was not admissible.</p> <p>3. Witnesses; ImpeacJiment; Immaterial Matter. — A witness may uot be impeached as to an immaterial matter.</p>

<p>Evidence; Accomplice; Corroboration. — Where an accomplice testified to the theft of the animals, and a sale of them to a third, person, and the defendant, when told that the accomplice had stated that defendant had sold the animals to a third person, offered to pay the third person for the animals if he said that defendant had sold .him the animals, and such third person and defendant went to see the accomplice, .who stated that he and defendant had taken another animal and defendant then offered to pay in case such person said that he had sold the animal, and the accomplice refused to go, and defendant then said he would go alone, there was a sufficient corroboration of the accomplice to sustain a conviction under section 7897, Code 1907.</p> <p>(Thomas, J., dissents.)</p>

<p> Violating Prohibition Lam. </p> <p>Appeal from Tuscalooosa County Court.</p> <p>Heard before Hon. H. B. Foster.</p> <p>John Harkey was convicted of violating the prohibition law, and he appeals.</p>

<p> Violating Prohibition Law. </p> <p>Appeal from Tuscalooosa County Court.</p> <p>Heard before Hon. H. B. Foster.</p> <p>John Harkey was convicted of violating the prohibition law, and he appeals.</p>

<p> Violating Prohibition Law. </p> <p>Appeal from Walker Law and Equity Court.</p> <p>Heard before Hon. T. L. Sowell.</p> <p>Sandy Ogden was convicted of violating the prohibition law, and he appeals.</p>

Keeping Gaming Table. Appeal from Jefferson Criminal Court. Heard before Hon. S. E. Greene. R. Leonard Bryant was convicted of keeping a gaming table, and be appeals. (This cause was reviewed by the Supreme Court on certiorari to the Court of Appeals, and a writ was denied.

Habeas Corpus. Appeal from Lamar Probate Court. Heard before Hon'. R. L. Bradley. J. C. Hazelton brought habeas corpus to be discharged from certain prosecution pending before the county-court, and from any order denying his discharge he appeals.

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

<p>1. Larceny; Facts Constituting. — The felonious taking and carrying away of the personal property of another with the intent to convert it to the use of the taker, or to deprive the owner thereof, is larceny.</p> <p>2. Same; Evidence. — Where defendant told the owner that he had seen the owner’s animal over in the flatwoods, and in company with another, the owner drove the animal to defendant’s place, and put it in defendant’s lot, there was no taking by defendant of the animal, and he was entitled to a directed verdict.</p>

<p> Violating Oyster Law. </p> <p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. William E. Fort.</p> <p>Solomon Balsam was convicted of violating tbe Oyster Commission Law, and he appeals.</p>

<p>1. name; Middle name; Indictment. — In an indictment, the middle name oí defendant is treated as surplusage, and may be ignored.</p> <p>2. Same; Contraction. — Where the indictment was against Willie Walling, the name ‘“Willie” was one and the same with “William,” and such indictment was good against Willie Thomas Walling, ignoring the middle name.</p> <p>3. Evidence; Judicial Knowledge; name. — When the name Willie is applied to a male, the court judicially knows it to be used as a corruption for William.</p>

Imputing Want of Chastity. Appeal from Blount Circuit Court. Heard before Hon. J. É. Blackwood. James C. Murphree was convicted of imputing to a woman a want of chastity, and he appeals.

Violating Prohibition Law. Appeal from Coffee Circuit Court. Heard before Hoú. H. A. Pearce. Bige Shiver was convicted of violating the prohibition law, and he appeals.

<p> Violating Prohibition Law. </p> <p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Horn William E. Fort.</p> <p>Wash Rash was convicted of selling spirituous, vinous or malt liquors, and he appeals.</p>

<p>1. Witnesses; Examination; Motive. — Where it was not disputed that a state’s witness was in the employment of the sheriff at $25 per week as a detective, to turn up tigers, the court properly sustained an objection to a question by the defendant on the cross, as to whether the witness was in the business from patriotic or money motives, or if he reported tigers for what he got for it.</p> <p>2. Same; Knoivleclge. — -Where a witness had testified to the good character of defendant, it was competent, on cross-examination, to ask the witness if he had not heard that defendant had been up before the mayor’s court for a similar offense; thus tending to show the knowledge of the witness, the data upon which it was based, and its soundness.</p>

Embezzlement. Appeal from Montgomery City Court. Heard before Hon. Armstead Brown. Theo Lacy, alias, was convicted of embezzlement, and he appeals. The facts and the pleadings sufficiently appear in the case of Lacy v. The State, infra.

<p> Larceny. </p> <p>Appeal from Gadsden City Court.</p> <p>Heard before Hon. James A. Bilbro.</p> <p>Marion Bails was convicted of larceny, and be ap- ^ peals.</p>

Violating Prohibition Law. Appeal from Jefferson Criminal Court. Heard before Hon. William E. Fort. O. E. Stadt was convicted of violating the prohibition law, and he appeals.

<p>Appeal and Error; Dismissal; Bill of Exceptions. — Where the time allowed by law for presenting the ■ bill of exceptions to the trial judge aud his approval and signing thereof had expired before the call of the division to which the cause was returnable, and no excuses was shown for a failure to prosecute the appeal properly, the appeal will be dismissed.</p>

Larceny. Appeal from Geneva County Court. Heard before Hon. John A. Campbell. Cliff Ludlum was convicted of larceny, and he appeals. The bill of exception recites that Cliff Ludlum sent or carried two pairs of pants to the pressing shop of one E. L. Curenton, and came back on Saturday afternoon for them.

<p> Violating Prohibition Lam. </p> <p>Appeal from Pike Circuit Court.</p> <p>Heard before Hon. H. A. Pearce.</p> <p>Sberman Joins was convicted of violating the prohibition law, and he appeals.</p>

Violating Criminal Contract. Appeal from Elmore Circuit Court. Heard before Hon. W. W. Pearson. Robert Lambert Avas convicted of knoAvingly interfering with, hiring, or enticing Henry Jones, a laborer or servant, who had contracted in Avriting tó serve one W. R. McCarter, and he appeals. The facts sufficiently appear.

<p>1. Witnesses; Refreshing Recollection; Memorandum. — .Where a permanent record kept by an express company in its regular course of business contained the character of the goods embraced in shipments, the names of the consignee' the weight of. the parcels, dates of delivery, and the names of the persons to whom delivery was made, and the record was made in part from way bills which accompanied the shipments, and when shipment was delivered to the consignee, the agent of the express company making the delivery indicated thereon that he made the delivery, and it wag customary for the consignee to sign his name, although in some instances the employee of the company signed the name, witnesses could-refer to the respective memoranda made by them to refresh their recollection as to the transaction of delivery.</p> <p>2. Same. — A witness may use entries in a book made by him or by defendant in his presence to refresh his recollection as to the transactions evidenced by the entries.</p> <p>3. Appeal and Error; Harmless Error; Evidence. — If the court committed error in allowing a witness to refer to a memoranda in a book made by a third person, indicating as to the deliveries of goods to defendant of which witness had no personal knowledge, such error was cured by the action of the court in suspending the trial, and allowing the production of witnesses who made the deliveries disclosed by the memoranda, and who testified as to such delivery.</p> <p>4. Trial; Suspending; Discretion. — It is within the discretion of the trial court to suspend a trial for the purpose of producing witnesses for the state, as to certain matters, and the court’s action is not reviewable except for gross abuse.</p> <p>5. Trial; Reception of Evidence; Objection. — A general objection to testimony that is not patently immaterial is not'availing as á basis of error on appeal.</p> <p>6. Witnesses; Contradiction; Stenographic Report. — In the absence of a predicate laid for the impeachment of a witness whose testimony had been given in the presence of the jury, it was not erroneous to decline to permit the reading to the jury of the stenographic report of the testimony of the witness.</p>

<p> Violating Prohibition Law. </p> <p>Apppeal from Covington Circuit Court.</p> <p>Heard before Hon. H. A. Pearce.</p> <p>Chester Weyms, alias Chester Wiems, was convicted of violating the prohibition law, and he appeals.</p>

Perjury. Appeal from Cullman Circuit Court. Heard before Hon. D. W. Speake. Will Todd-was convicted of perjury, and he appeals. The facts sufficiently appear. The following charges were refused the defendant: (2) Under the evidence in this case, the jury cannot convict the defendant under count 2 of the indictment.

<p> Crime. </p> <p>Appeal from St. Clair Circuit Court.</p> <p>Heard before Hon. J. E. Blackwood.</p> <p>Tom Davis was convicted of crime, and he appeals</p>

Abusive Language. Appeal from Limestone Circuit Court. Heard before Hon. R. C. Brickell. Annie Daley was convicted of using abusive, insulting or obscene language in tbe presence or bearing of a female, and sbe appeals.

Carrying Concealed Weapons. Enoch Smith was convicted of carrying concealed weapons, and he appeals. The facts sufficiently appear from the opinion. Charge 2 is as follows: If the evidence only establishes the fact that the defendant threw the pistol out of the window, you cannot convict him.

<p>1. Larceny; Indictment; Variance. — Where the indictment alleged that the pistol was stolen from a warehouse belonging to a certain corporation, and the evidence showed that it was stolen from an office under the same roof as the warehouse, and directly connected with it by a door, there was no variance; such office being part of the warehouse within the meaning -of section 7324, Code 1907.</p> <p>2. Indictment and Information; Clerical Error; Name. — An indictment for larceny from the warehouse of a certain fertilizer company was not defective fatally because the name of the fertilizer company was stated as “Fertilize Company”; such error being a self-correcting clerical error.</p>

<p>1. Perjury; Nature. — One who swears falsely to immaterial or irrelevant matter cannot be convicted of perjury under sections 7541-3, Code 1907.</p> <p>2. Same; Indictment. — Under Form 81, an indictment for perjury which follows the form, is sufficient if it avers that the alleged false testimony was material, although it does not show wherein it was material.</p> <p>3. Same; Evidence. — In a prosecution for burglary it was material for the state to show that defendant was armed and ready to use a pistol at the time he left the scene of the burglary; hence, his false swearing on that point is perjury.</p> <p>4. Same. — Where the circumstances afforded a basis for a reasonable inference that defendant’s testimony, if false, was willfully and corruptly so, defendant is not entitled to an affirmative charge on the theory of an absence in the evidence of anything to show wilfulness and corruptness in false swearing.</p> <p>5. Same; Evidence; Sufficiency. — Á person cannot be convicted of perjury on the uncorroborated evidence of a single witness.</p> <p>6. Same; Jury Question. — Where defendant tools the stand in his own behalf, and there was some corroborating evidence, the question whether there was sufficient corroboration is for the jury, and their determination thereof will not be reviewed.</p> <p>7. Same. — Although defendant was acquitted of the charge of burglary, yet he may be convicted of a perjury in that he swore falsely that he was unarmed when arrested, upon his leaving the house he was accused of burglarizing; the acquittal, of burglary not being a finding as to that collateral matter.</p> <p>(Tbis cause Was" reviewed by tbe SupTeme Court on certiorari to Court of Appeals, and writ ponied. See 193 Ala. 678, 69 South. 351.—Reporter.)</p>

Bigamy and Unlawful Cohabitation. Appeal from Randolph Circuit Court. Heard before Hon. S. L. Brewer. Alf. Phillips was convicted of living with a second wife while his first wife was still living and undivorced, and he appeals.

Burglary. Appeal from. Montgomery City Court. Heard before Hon. C. P. McIntyke. Kelly Adams was convicted of burglary, and he appeals. Omitting formal charging part, the indictment is as follows: (1) Kelly Adams, with intent to steal, broke into and entered the' office of W. H. Sanders, a shop, store, warehouse, or other building, structure, or inclosure, in which goods, merchandise, or books, things of value were kept for sale or deposit.

<p> Bwrgla/ry. </p> <p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. C. P. McIntybe:</p> <p>Geo-rge R. Norman was convicted of burglary, and he appeals.</p>

Violating Prohibition Law. Appeal from Jefferson Criminal Court. Heard before Hon. William E. Fort. Rich Oliveri was convicted of violating the prohibition law, and he appeals.

<p> Violating Prohibition Lem. </p> <p>Appeal from Coffee Circuit Court.</p> <p>Heard before Hon. H. A. Pearce.</p> <p>Bud Harrison was convicted of violating tbe prohibition law, and he appeals.</p>

<p> Violating Prohibition Lam. </p> <p>Appeal from Coffee Circuit Court.</p> <p>Heard before Hon. H. A. Pearce.</p> <p>Harper C. Whaley was convicted of violating tbe prohibition law, and he appeals.</p>

<p>1..Intoxicating Liquors; Indictment; Sufficiency. — An indictment in the form prescribed by section 29%, Acts 1909, p. 90, is broad enough to charge the offense denounced by section 24 of said -act.</p> <p>2. Same; Offenses; Sale. — Where it appeared that about twenty •different deliveries of liquor within eight months aggregating about 107 gallons was made to defendant, and that the liquors was shipped and billed to defendant, and defendant testified that several persons gave him money to which he added some of his own, and that he ordered the liquor from another state shipped to him in this state, and there received it and transported it to his home, and then distributed it among those contributing to the fund, the legal title of the liquor when received from the express company was in defendant, and his act in transporting and delivering to other persons contributing to the fund, was in the nature of a sale within Acts 1909, p. 90.</p> <p>3. Same; Evidence. — The evidence examined and held sufficient to require a submission to the jury of the question of defendant’s guilt of violating the prohibition statutes.</p>

Larceny. Appeal from. Clarke Circuit Court. Heard before Hou. John T. Lackland. Chris Rivers and another were convicted of the larceny of a cow, and they appeal. The case was submitted on a motion to establish the bill of exceptions, to dismiss the appeal, and on the merits.

Seduction. Appeal from Marshall Circuit Court. Heard before Hon. W. W. Haralson. Dutch Brand was convicted of seduction, and he appeals.

Seduction. Wade Smith was convicted of seduction, and be appeals. (This case was reviewed by the Supreme Court on certiorari, and the writ clenied.

Bastardy. Appeal from Gadsden City Oonrt. Heard before Hon. James A. Bilbro. Wade Smith was convicted of bastardy, and he appeals. The following charges were refused the defendant: (2) The fact that Wade Smith went to- Georgia is no evidence of guilt. (3) You cannot consider any evidence of flight in this case.

Perjury. Appeal from Gadsden City Court. Heard before Hon. Joh H. Disque. Jeff Tbomas was convicted of perjury, and be appeals.

<p>1. Constitutional Law; Master and Servant; Contract; Personal Right. — The purpose of Acts 1911, p. 93, is to punish those who are guilty of obtaining money or property by false misrepresentation or false pretense, and the act is not invalid as permitting involuntary servitude in violation of section 1, Amendment 13, of the Federal Constitution.</p> <p>2. Master and Servant; Contract; Violation; Statute. — -The fact that defendant was a minor and could not make a legally binding contract was no defense to a prosecution for a violation of Acts 1911, p. 93.</p> <p>(Thomas, J., dissents.)</p>

<p>1. Appeal and Error; Harmless Error; Pleading. — Where defendant had the full benefit of the issue under another plea' to which no demurrer was sustained, he cannot complain of the sustaining of a demurrer to a plea raising a similar issue.</p> <p>2. Principal and Agent; Compensation; Impossibility of Performance. — Where one contracts to pay a commission to another for procuring a sale of certain roofing material, he .cannot deny his liability, after the contract of sale has been made, because no such roofing was in existence or being manufactured.</p> <p>3. Same; Substituted Contract. — Where an agent effected a contract of sale for his principal of a specified kind of roofing, which was not then in existence, and without the agent’s authority the principal agreed to furnish the buyer a different roofing and collected the price therefor, the agent is entitled to his compensation.</p> <p>4. Same. — Unless an agent does so with the knowledge and consent of both parties, he cannot act as agent for both parties to the transaction without forfeiting his right to compensation.</p> <p>5. Courts; Decision; Revieio. — Although the finding of a city court may be reviewed without any presumption in its favor, under the statute creating them, yet the appellate courts will not disregard the fact that such court had better opportunity to determine the weight and credibility of the testimony because it had the witnesses before it.</p> <p>G. Principal and Agent; Compensation; Settlement. — Where the contract was that the agent’s commissions should be paid as soon as the principal recevied full payment, and without consulting the agent, the principal gave the buyer a receipt in full in consideration of an assignment by him of his property in trust for his creditors, such agent is entitled to his compensation, although the principal failed to realize the full amount of his claim out of the property.</p> <p>7. Interest; Accrual of De~bt. — Where the agreement was that the agent was to receive his compensation when the principal received payment for the goods, the agent was entitled to interest only from the date of the settlement of the principal with the buyer.</p> <p>(Tbe judgment in this case was reviewed by tbe Supreme Court on certiorari to tbe Court of Appeals, and tbe writ was denied. 193 Ala. 678.—Reporter.)</p>

Assumpsit. Appeal from Monroe Law and Equity Court. Heard before Hon. W. G. McCorvey. . Assumpsit by tbe Cincinnati, New Orleans & Texas Pacific Railway Company against tbe Yredenburgb Sawmill Company. From a judgment for defendant, plaintiff appeals.

Assumpsit. Appeal from Birmingham City Court. Heard before Hon. H. A. Sharpe. Action by Harry Kitzenger & Company against O. W. James and another as sureties on an appeal bond. Judgment for plaintiff, and defendants appeal.

Assumpsit. Appeal from Marshall Circuit Court. Heard before Hon. W. W. Haralson. Assumpsit by W. O. McCormack and another against the H. H. Hitt Lumber Company. Judgment for plaintiffs, and defendant appeals. The count declares as for breach of an agreement, by which plaintiffs and defendant mutually agreed that plaintiff would cut all the merchantable timber aboye 13 inches at the small end on the W. F. Beard and G-.

<p> Assumpsit. </p> <p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. John H. Miller.</p> <p>• Action by Bernheim Distilling Company against George Caravella. Judgment by default for plaintiff, and defendant appeals.</p>

Assumpsit. Appeal from Cherokee Circuit Court. Heard before Hon. W. W. Haralson. Assumpsit by J. H. Arnold & Co. against the Bank of Menlo. Judgment for plaintiff, and defendant appeals. The bank being a nonresident, the action was begun by attachment, and was served by garnishing a number of parties.

Assumpsit. Appeal from Lauderdale Circuit Court. Heard before Hon. H. A. Bradshaw, Special Judge. Assumpsit by J ames Burtwell against J. N. Crow and another. From a judgment for plaintiff, defendants appeal.

Assumpsit. Appeal from Birmingham City Court. Heard before Hon. C. W. Ferguson. Action by N. J. Benton against O. B. Moon and others. Judgment for the plaintiff, and defendant Moon appeals. On the submission there was severance and separate assignment of error. The substance of the complaint is sufficiently disclosed by the opinion. The following charges were refused to defendant: (4) Affirmative charge as to count 2. (1 and 2) General affirmative charge.

Assumpsit. Appeal from Mobile Law and Equity Court. Heard before Hon. Saffold Berney. Assumpsit by W. S. Hedden against H. H. Wefel, Jr. Plaintiff took a voluntary nonsuit with bill of exceptions because of adverse rulings on the- evidence, and brings this appeal.

Assumpsit. Appeal from Marshall Circuit Court. Heard before Hon. W. W. Haralson. Assumpsit by the Huntsville Grocery Company against F.. M. Johnson. Judgment for defendant, and plaintiff appeals. The complaint was filed February 16, 1915, and service perfected February 18, 1915.

<p> Assumpsit. </p> <p>Appeal from Lawrence Circuit Court.</p> <p>Heard before Hon. D. W. Speaks.</p> <p>Assumpsit by Molly Downing against G-. W. Rhodes. Judgment for plaintiff, and defendant appeals.</p>

Assumpsit. Appeal from Marengo Law and Equity Court. Heard before Hon. E.'J. Gilder. Law Lamar and another brought suit against O. A. Floyd & Co. and the individual members of the firm for breach of contract for the sale of cotton. Judgments for plaintiffs, and defendants appeals. Summons was executed on both of the defendants on June 21, 1911, and on July 8, 1911, the defendants filed their demurrer to- the complaint, and on the filing demanded a trial by jury.

Tm Assessment. Appeal from Montgomery Circuit Court. Heard before Hon. W. W. Pearson. Action by the State of Alabama against S. Gassenheimer & Co. to collect taxes on solvent credits. From a judgment for plaintiff, defendants appeal.

Assumpsit. Appeal from Tallapoosa Circuit Court. Heard before Hon. S. L. Brewer. Action by A. J. Salmon against F. A. Salmon and others, on an injunction bond. Judgment for plaintiff, and defendants appeal. Affirmed.

Assumpsit. Appeal from Morgan Law and Equity Court. Heard before Hon. Thomas W. Wert. Action by Connie Hunter against Austin & Sons, and others, on a garnishment bond. Judgment for plaintiff, and defendants appeal..

<p>1. Husband and Wife; Liability of Husband; necessaries. — Medical services are necessaries within the rule making the husband liable for necessaries furnished his wife, although the husband did not call in the physician, and notwithstanding the call was against his consent and over his objection.</p> <p>2. Same; Abandomnent. — If the wife abandons his home and refuses to live with him through no fault of the husband, the husband is not responsible for her necessaries on any theory of an implied reguest, or of implied agency of the wife to bind the husband.</p> <p>3. Same; Implied Authority of Wife. — The mere fact that a wife is living apart from her husband is sufficient notice to those dealing with the wife to put them on inquiry and advise them that they credit the wife at their peril insofar as the liability of the husband is concerned, in cases of separation the presumption being that the husband is not liable for necessaries furnished to the wife, thus placing the burden of proof on the parties furnishing such necessaries to show that' such separation is due to the fault or misconduct of the husband.</p> <p>4. Same. — Where, without his consent, and without fault on his part, a wife voluntarily abandons her husband, and went to live with her father, and within three and a half months thereafter, was in' need of a physician, the physician being called in to attend her without the consent of the husband, and without his authority, the husband was not liable for the reasonable value of the physician’s charges on the theory that under the-circumstances they were not rendered exclusively for the wife’s benefit, but for the preservation of the life of defendant’s child, since a husband is not liable for the support of his minor children, where the wife leaves him without cause, taking the children with her. .</p>

<p> Assumpsit. </p> <p>Appeal from Coosa Circuit Court.</p> <p>Heard before Hon. S. L. Brewer.</p> <p>Action by J. W. Tankersley against Fenners’ Mutual Insurance Association of Alabama, upon a fire policy. Judgment for plaintiff, and defendant appeals.</p>

Assumpsit. Appeal from Jefferson Circuit Court. Heard before Hon. E. C. Crow. Action by the- Central of Georgia Railroad Company against S. F. Cornelius & Co., to recover undercharge for freight. Judgment for the plaintiff, and the defendant appeals.

<p> Assumpsit. </p> <p>Appeal from Morgan Law and Equity Court-</p> <p>Heard before Hon. Thomas W. Wert.</p> <p>Assumpsit by S. E. Stewart against Mrs. L. Orr and others. Judgment for plaintiff, and defendants appeal.</p>

Assumpsit. Appeal from Crenshaw Circuit Court. Heard before Hon. A. E. Gamble. Action by Oliver. Enzor as administrator, against M. W. Rushton, as administrator cum testamento annexo. Plaintiff took a nonsuit with bill of exceptions because of certain rulings on the evidence, and appeals.

Assumpsit. Appeal from Walker Law and Equity Court. Heard before Hon. T. L. Sowell. Action by tbe Citizens’ Bank against Weinstein Bros, and others trading-under tbe firm name. Judgment for plaintiff, and defendants appeal. The complaint describes the notes as executed on May 14, 1911, and payable to the American Manufacturing Company, at Lexington, Tenn., in installments of $50 each, till paid (giving the respective dates).

Assumpsit. Appeal from Montgomery City Court. Heard before Hon. Gaston Gunter. Action,by the State against W. H. Stoddard as Captain, and the sureties on his official bond. From an insufficient judgment for-plaintiff it appeals.

Violating Municipal Ordinmice. Appeal from Calhoun Chancery Court. Heard before Hon. W. W. Whiteside. George Lee was convicted of violating a city ordinance, and he applied for habeas corpus, and from an order granting the writ, the city appeals.

Violating Municipal Ordinance. Appeal from Jefferson Circuit Court. Heard before Hon. C. B. Smith. D. J. O’Connell was convicted in the recorder’s court of the city of Birmingham of a violation of the municipal license tax on waterworks, and appealed to the circn.it court, where he was discharged. From the order discharging him the city appeals.

Street Assessment. Action by Otto Goodenratli. against the City of Huntsville. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Violating Municipal Ordinaoice. Appeal from Tuscaloosa County Court. Heard before Hon. H. B. Foster. Mandy Washington was convicted for violating an ordinance of the city of Tuscaloosa, the trial being had before one Traweek, temporarily appointed recorder of the .city, and she brings habeas corpus alleging want of authority in said Traweek to render the judgment of conviction and impose the sentence. From an order declining to discharge her-, she appeals.

Detinue. Appeal from Marshall Circuit Court. Heard before Hon. W. W. Haralson. Detinue by Henry Davidson against the T. L. Farrow Mercantile Company. Judgment for defendant, and plaintiff appeals. The facts sufficiently appear.

<p>1. Appeal and Error; Revieto; Rinding by the Court. — In an action tried by the court without a jury the sufficiency of a special finding of the facts made by the court on its own motion, to support the judgment rendered, will be reviewed when reserved and presented by bill of exceptions.</p> <p>2. Same. — In such a case, the only question open for consideration and review is whether the facts so found by the court support the judgment rendered.</p> <p>3. Same. — In such a case a judgment on a special finding cannot be sustained unless the court directly and affirmatively finds every fact in issue essential to support the right of recovery.</p> <p>4. Landlord and Tenant; Relationship; Contract of Hire. — An agreement that M. was to furnish land and a mule to cultivate a crop thereon, and that B. was to furnish the labor to cultivate the crop, the crop to be divided, did not of itself, make the contract one of hire within section 4743, Code 1907.</p> <p>5. Same. — Where the agreement was that M. should furnish the land and the mule to cultivate a crop thereon, and B. was to furnish the labor, the crop to be equally divided, and each subsequently agreed to use fertilizer to be furnished by M. to be paid for out of the proceeds of the crop at the equal expense of both parties, they then became joint owners of the crop, and the contract was not one of hire. (Section 4792, Code 1907.)</p>

Tax Assessment. Appeal from Elmore Circuit Court. Heard before Hon. W. W. Pearson. Proceedings by tbe county of Elmore in tbe name of tbe State to assess tbe property of tbe Tallassee Falls Manufacturing Company as being partly witbin tbe county of Elmore. From a judgment sustaining the assessment the Tallassee Falls Manufacturing Company appealed.

Motion to Retax Costs. Appeal from Birmingham City Court. Heard before Hon. John H. Millee. Leanna Porter sued the Tennessee Coal, Iron & Railway Company, and had judgment, whereupon defendant moved for a retaxation of costs ás to a number of witnesses summoned by plaintiff. The court granted the motion as to a part of the witnesses, and plaintiff appeals.

Violating Municipal Ordinance. Appeal from Montgomery City Court. Heard before Hon. Armstead Brown. F. A. Bivins was convicted of violating the ordinance against doing a telegraph business without license, and he appeals.

Violating Municipal Ordinance. Appeal from Autauga Circuit Court. Heard before lion. W. W. Pearson. J. W. Hill was convicted of violating an ordinance of tbe city of Prattville, and on appeal to tbe circuit court was again convicted, and appeals.

Detinue. Action by Dunaway & Lambert and others against Joseph B. Stickney. Judgment for defendant, and plaintiffs appeal. Plaintiffs claim the mule under purchase from one Will Hinton, and the defendant claims under a mortgage covering a sorrel mule colt named Traveller. The contention was one of fact as to the identity of the mule purchased with that mortgaged.

Motion to Quash Execution. Appeal from Coffee Circuit Court. Heard before Hon. H. A. Pearce. Mandamus by the State on the relation of Joe Jernigan against J. N. Ham to- require him to enter a motion quashing an execution. From a judgment denying the writ, relator appeals.

Violating Municipal Ordinance. Appeal from Tuscaloosa County Court. Heard before Hon. H. B. Foster. Lula Merriwether ivas convicted of violating an ordinance of the city of Tuscaloosa, prohibiting the keeping for sale or selling intoxicating liquors, and she appeals.

Violating Municipal OrciwiaAvce. Appeal from Jefferson Criminal Court. Heard before Hon. Samuel E. Greene. Jerome S. Brown was prosecuted before the recorder of the city of Birmingham for violating a city ordinance, and on conviction there appealed to the criminal court, where judgment was had quashing the complaint and discharging defendant. The city appeals.

<p>Appeal from Covington Circuit Court.</p> <p>Heard before Hon. H. A. P!earoe.</p>

<p>Appeal from Cleburne Circuit Court.</p> <p>Heard before Hon. Hugh D. Merrill.</p>

<p>Appeal from Elmore Circuit Court.</p> <p>Heard before Hon. W. W. Pearson.</p>