Volume 14 — Alabama Appellate Reports

Heard before-Hon. James A. Bilbro. Mark Cunningham was convicted of arson, and he appeals. The objections to evidence, together with the tendencies of the evidence, sufficiently appear from the opinion.

<p>Appeal from Marshall Circuit Court.</p> <p>Heard before Hon. W. W. Haralson.</p> <p>Bud, alias, Talley Noble was convicted of murder, and he appeals.</p>

<p>Violating Prohibition Law.</p> <p>Intoxicating Liquors; Offense; Attempt to Manufacture. — The evidence in this case examined and held to show only an attempt to manufacture prohibited liquors which is not an offense under Acts 1915, p. 3.</p>

<p>Crime.</p> <p>Criminal Law; Appeal; Failure to Perfect. — Where the certificate filed on appeal from a conviction showed rendition of judgment and notice of appeal in January, 1915, but no further steps were taken to perfect the appeal, the appeal was subject to dismissal on motion at the regular call of the division to which the appeal was returnable in January, 1916.</p>

<p>Appeal from Houston Circuit Court.</p> <p>Heard before Hon. H. A. Pearce.</p> <p>Sterling Taylor was convicted of crime, and he appeals.</p>

Heard before Hon. Wm. E. Fort. Reuben J. Keife was convicted of keeping a gaming table, and he appeals. It appears from the evidence that the playing was done at the Beavers’ Club, and that the game played was poker, and that defendant on several occasions would deal the cards and take out money for the benefit of the house, as he was a member of the club.

Appeal before Mobile City Court. Heard before Hon. O. J. Semmes. Charles D. Summers was indicted for larceny and for receiving stolen goods, and from a conviction of the latter offense he appeals.

Heard before Hon. H. P.. Heflin. Jennie Rowlan, alias, etc., was convicted of an assault with intent to murder one Levi F. Clayton, and she appeals. When the witness Screws was being examined, the state asked him if Jennie Rowlan said anything to Mr. Clayton when she came out of the house during the shooting.

<p>Appeal from Henry Circuit Court.</p> <p>Heard before Hon. M. Sollie.</p> <p>Dump Kennedy was convicted of crime, and he appeals.</p>

<p>Crime.</p> <p>Witnesses; Impeachment; Conviction of Crime; Oral Evidence. — Under §§ 4008-9, where a witness had denied that he had pleaded guilty to larceny, it was not error to exclude oral evidence as to his conviction, for the purpose of contradicting him, as the record of the conviction was the only •competent evidence.</p>

Heard before Hon. A. E. Gamble. John T. Robinson was convicted of larceny, and he appeals. The facts sufficiently appear in the opinion.

- Heard before Hon. J. C. B. GwiN. Bob Hardaman was indicted for murder in the first degree, and convicted of murder in the second degree, and he appeals.

H. P. Heflin. R. Leonard Bryant was convicted of keeping a gaming table, and on appeal from this conviction the cause was affirmed except as to the sentence, and remanded for proper sentence. From the judgment of sentence imposed, defendant appeals.

<p>Appeal from Walker Circuit Court.</p> <p>Heard before Hon. J. J. Curtis.</p> <p>Will Turner was convicted of violating the prohibition law, and he appeals.</p>

Heard before Hon. S. L. Brewer. Emmet Keeble was convicted of an assault with intent to murder, and appeals. The facts sufficiently appear from the opinion.

Heard before Hon. J. E. Blackwood. John Studdard was convicted of violating the prohibition law, and he appeals. The evidence tended to show several sales of whisky by the defendant at different times during the months of December and January, 1914 and 1915. On the cross-examination of the state’s witness the defendant asked many questions concerning a game of cards in which the witness and others were engaged at the time it is said some of the whisky was bought.

Heard before Hon. W. E. Fort. Will Hardeman was convicted of robbery, and he appeals. The offense is alleged to have been committed upon one Crawford Sanders The facts sufficiently appear in the opinion.

<p>Larceny,</p> <p>Larceny; Evidence; Jury Question. — Under the evidence in this case it was for the jury to determine whether or not defendant was guilty of the larceny of the suit of clothes.</p>

Heard before Hon. Wm. E. Fort. Murry Lane, alias Harry Lane, was convicted of larceny from the person, and he appeals. The evidence for the state tended to show that, as Chambers and his party were boarding a street car, there was a commotion and some shoving, and that defendant and two other men were present, and that defendant assisted in the shoving' and scuffling, when some one reached into the pocket of Chambers and got his pocketbook.

Heard before Hon. T. L. Sowell. Wallace Kirk was convicted of violating the prohibition law, and he appeals.

Heard before Hon. B. M. Miller. John Mitchell was convicted of killing Columbus Gentry, and appeals. The ¡juror, as appearing from the list served on defendant, was E. Ben Perry, but the person answering gave his name as Ben Edmond Perry, and the court required defendant to strike from the list containing the name of E. Ben Perry.

.Appeal from Tuscaloosa County Court.' Heard before Hon. H. B. Foster. Lulu Merriweather was convicted of having in her possession more than two quarts of whisky, and she appeals.

Heard before Hon. Wm. E. Fort. Andrew Collins was convicted of larceny from the person of •Joseph Catringris, and he appeals. The demurrers raise the question as to the proper description of the money alleged to have been stolen, a description of ■which appears from the opinion. The following charges were refused to defendant: (2) If defendant has proved an alibi, you should acquit him.

<p>Abusive Language.</p> <p>1. Courts; Jurisdiction; Concurrent. — Where two courts have concurrent jurisdiction, that court which first takes cognizance of the cause may retain it to the exclusion of the other court, and no other court can interfere.</p> <p>2. Same; Elements, — Jurisdiction of the offense and of the person must concur to authorize- a court of competent jurisdiction to proceed to final' judgment in a criminal prosecution.</p> <p>3. Indictment and Information; Jurisdiction; Prerequisite. — A formal accusation sufficient to apprise defendant of the nature and cause of accusation against him is a prerequisite to jurisdiction of the offense, under § 6, Const. 1901,</p> <p>4. Same; Objection; Waiver. — A formal accusation is essential to complete jurisdiction, and cannot be waived, although irregularities in obtaining jurisdiction of the person may be.</p> <p>5. Courts; Jurisdiction; Elements. — Where complaint was lodged against accused and a warrant of arrest issued thereon, and the defendant was arrested and admitted to bail, and the warrant and accusation returned to the-city court, its jurisdiction over the person and the offense was complete, under § 7350, Code 1907.</p> <p>6. Same; Priority; Burden of Proof. — Where complete jurisdiction appears in the city court, if the defendant seeks to oust it, the burden is then-on him to show the jurisdiction of the offense in another court prior to the-attaching of jurisdiction of the city court.</p> <p>7. Same; Evidence. — Where the pleas interposed by the defendant in the-city court show that no formal complaint or charge was made in the recorder’s court, and that he was not called to appear, nor to plead until after he-had been arrested and admitted to bail in the city court, they fail to show jurisdiction in the recorder’s court, and his remedy was to plead in the recorder’s court the pendency of the prosecution in the city court.</p> <p>8. Same; Exercise of, — The fact that city police officers are authorized to arrest offenders and commit them to jail without warrant, whether by statute or ordinance, does not, in the absence of a formal accusation, constitute an exercise of jurisdiction of the recorder’s court over the offense prior to the appearance and pleading of the defendant, whether the offense be denounced by statute or by ordinance.</p> <p>9. Indictment and Information; Municipal Ordinance; Waiver of Defense. —Where the offense is one denounced by a municipal ordinance, formal accusation cannot be said to be waived in the recorder’s court until the accused pleads to the charge without demanding the nature and cause of the accusation.</p> <p>10. Arrest; Authority; Without Warrant. — The charter authority of the city of Bessemer merely authorizes passage of an ordinance granting authority to arrest without a warrant, hut not authority to arrest without warrant.</p> <p>11. Evidence; Judicial Knowledge; Municipal Ordinances. — In the absence of proper averment and proof, the courts will not take judicial knowledge of municipal ordinances.</p> <p>12. Courts; Jurisdiction; Priority. — In the absence of proof of the filing of formal accusation in the recorder’s court against a defendant, the fact that the defendant had been arrested by the city police and had given bond for his appearance before the recorder, prior to his arrest under process from the city court, does not deprive the city court of its jurisdiction.</p> <p>13. Appeal and Error; Harmless Error; Rule 45. — The fact that a plea was erroneously disposed of on motion to strike, rather than on demurrer, is not sufficient, under Supreme Court Rule 45, to require a reversal, no substantial rights of the party complaining having been affected thereby.</p> <p>14. Abusive Language; Evidence. — The evidence examined and held to require a submission to the jury of the guilt or innocence of the defendant, an'd therefore that the court properly denied the defendant the affirmative charge.</p> <p>15. Appeal and Error; Review; New Trial in Criminal Cases. — Where the appeal was taken and bill of exceptions signed prior to the statute permitting appeals from ruling on motion for new trial in criminal cases, the appeal is governed by the pre-existing rule, and the motion for new trial and rulings thereon will not he reviewed.</p>

John Johnson was convicted of violating the prohibition law, and he appeals. The evidence for the state tended to show: That just before Christmas the witness Roden met defendant in the road and asked him if he did not have some whisky. The defendant replied, “No.” That the witness saw the whisky in Johnson’s buggy, took the package out, wrapped in thin wrapping paper as used in stores, and pitched $1 in defendant’s buggy.

Heard before Hon. Wm. E. Fort. W. E. Daniel was convicted of manslaughter in the first degree, and he appeals. The killing is alleged to have been done by stabbing or cutting with a knife, and the person killed was one William Gunnaway. The tendency of the evidence sufficiently appears.

Heard before Hon. Wm. E. Fort. Henry Bufford, alias Burfford, was convicted of grand larceny, and appeals. Witness Arwood, testifying, stated that he had seen defendant write a number of letters and notes, and was familiar with his handwriting. “I had written him a letter before receiving-this letter, and he had written me a letter before that (witness being shown a letter).”

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

Heard before Hon. H. A. Pearce. George Lewis was convicted of the larceny of a cow, and he appeals. The facts sufficiently appear from the opinion. The following charges were refused to defendant: 1. If the jury have a reasonable doubt as to defendant’s guilt arising out of any part of the evidence, they must find defendant not guilty. 2.

<p>Appeal from Clarke Circuit Court.</p> <p>Heard before Hon. Ben G. Turner.</p> <p>Grady Spinks was convicted of the larceny of an ox, and he appeals.</p>

Heard before Hon. Thomas W. Wert. Jim Murphy was convicted of murder in the second degree under an indictment charging first degree murder, and appeals- The charges requested for the state and given are as follows:: (4) If the wounds inflicted by defendant on Skidmore, and: that by reasons of said wounds, and as a result thereof, the deceased was caused to have some other disease from which he died, then defendant would be responsible for ■ inflicting said wounds unless he…

Heard before Hon. M. B. Abercrombie. Houston Wilson was convicted of having sold certain cotton seed upon which there was a mortgage or lien without ther consent of the lienor, and he appeals.

<p>Appeal from Mobile City Court.</p> <p>Heard before Hon. O. J. Semmes.</p> <p>George Price was convicted of robbery, and he appeals.</p>

Heard before Hon. T. L. Sowell. Ben Hancock was convicted of violating the prohibition law, and he appeals.

Heard before Hon.-H. A. Pearce. Will Herring was convicted of seduction, and he appeals. The facts sufficiently appear in the opinion, except that the defendant proposed to show that about a week or more after the alleged act of intercourse the prosecutrix went before a justice of the peace and swore iout a warrant for bastardy against the defendant, and to follow this up by proof that she was never, in fact, pregnant.

<p>Appeal from Hale County Law and Equity Court.</p> <p>Heard befor.e Hon. Charles E. Waller.</p> <p>Add Danal, alias, etc., was convicted of unlawfully carrying a pistol, and he appeals.</p>

Heard before Hon. John H. Miller. John Jackson was convicted of petit larceny, and he appeals.

<p>Appeal from Conecuh Circuit Court.</p> <p>Heard before Hon. A. E. Gamble.</p> <p>George Simmons was convicted of violating the prohibition law, and he appeals.</p>

<p>Crime.</p> <p>Criminal Law; Sentence; Cost. — Under §§ 7620, 7635, it was proper to sentence to hard labor for the county where the punishment imposed did not exceed two years, notwithstanding an additional sentence to hard labor was imposed for the payment of costs.</p>

<p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. T. P. Heflin.</p> <p>Sis Mitchell, alias, was convicted of crime, and he appeals.</p>

Heard before Hon. H. A. Pearce. Cleve Everage was convicted of forgery, and he appeals.

<p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. Wm. E. Fort.</p> <p>B. B. Dorough was convicted of crime and he appeals,</p>

<p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. Wm. E. Fort.</p> <p>E. M. Gibson was convicted of violating the prohibition law, and he appeals.</p>

Heard before Hon. Wm. E. Fort. O. E. Stadt was convicted of violating the prohibition law, and he appeals.

<p>Appeal from Randolph Circuit Court.</p> <p>Heard before Hon. S. L. Brewer.</p> <p>Joe Willingham was convicted of manslaughter and he appeals.</p>

Heard before Hon. Oscar S. Lewis. Ike D. Chancey was charged with murder and was admitted to bail on an application for habeas corpus, and the State of Alabama appeals.

<p>Appeal from Coffee Circuit Court.</p> <p>Heard before Hon. A. B. Foster.</p> <p>Ewell Pearce was convicted of manslaughter and he appeals.</p>

<p>Manslaughter.</p> <p>1. Appeal and Error; Review; Presentation Below. — Where the question asked contained nothing to indicate that the answer would be objectionable ’ or inadmissible as hearsay, the state, by not objecting to the question, was not precluded from moving to exclude the merely hearsay answer that the weight inquired about was turned over to witness by some one who said he had picked it up there.</p> <p>2. Witnesses; Examination; Leading Question. — Questions to a defendant’s witness as to whether deceased looked like he was looking for someone, and whether deceased had the appearance of waiting for someone, were-leading and improper.</p> <p>' 3. Evidence; Non Expert. — If not leading and suggestive, questions to a witness as to whether decedent looked as if he were looking for someone, were within the rule of necessity permitting a witness to testify to conclusions and opinions which are but shorthand rendering of facts.</p> <p>4. Appeal and Error; Showing Error; Necessity. — The party appealing must affirmatively show error as to the rejection of evidence complained of in order to bring about a reversal, hence, a judgment of conviction will not be reversed because of the refusal of the court to permit a defendant’s witness to answer questions where it is not shown what answer was expected,, and whether it would be material.</p> <p>5. Same; Harmless Error; Charges. — The court will not be reversed for-refusing a correct written charge where, in the oral charge, the court corectly stated each of the propositions set out in the refused charge, and’ which was substantially covered by written charges given.</p>

<p>Violating Prohibition Law.</p> <p>1. Intoxicating Liquors; Statutes. — The offense of unlawfully transporting prohibited liquors is comprehended under the statutory affidavit prescribed by § 29%, Acts 1915, p. 30.</p> <p>2. Same; Jury Question. — Under the evidence in this case it was for the-jury to determine whether defendant was guilty of unlawfully transporting liquors, defendant claiming that he was a cabdriver, and merely hauled the owner of the liquor, who escaped, but knew nothing as to the contents of packages in his cab belonging to his passenger.</p>

■ Heard before Hon. H. A. Pearce. Otis Storey was indicted and convicted of the offense of perjury, and he appeals.

Heard before Hon. Ben G. Turner. Pink Wade and Spencer Overstreet were convicted of crime, and they appeal. The evidence for the state tended to show that the warehouse of one Ivy Pittman had been broken into, and that there was a box in the warehouse which was broken open and there was a good big hole in the box, and a vacant space in the box that looked like where the goods had been taken out.

Heard before Hon. H. A. Pearce. Demus Cauley was convicted of the larceny of a cow, and he appeals. Witness Lee testified that he lost a light red cow with horns, unmarked, from his barn in Houston county, on a certain Tuesday night, and, on the Saturday following, found a hide at Clendenning’s hoúse which came off of his cow.

Heard before Hon. J. J. Curtis. Action by James Stocks against the Birmingham Fuel Company for damages for injury while in its employ. Judgment for plaintiff, and defendant appeals.

Heard before Hon. J. C. B. GwiN. Action by Jim Hubbard against the Sloss-Sheffield Steel & Iron Company for damages for injuries sustained while working in its mine. Judgment for plaintiff, and defendant appeals.

Heard before Hon. C: W. Ferguson. Action by A. M. Wood against the Empire Laundry Company for an assault and battery. Judgment for plaintiff, which on motion of defendant was set aside, and new trial ordered, from which order plaintiff appeals.

Heard before Hon. C. B. Smith. Action by Carlos Veitch against the Illinois Central Railroad Company and others. There was a judgment for defendants, and plaintiff appeals.

Heard before Hon. Bernard Harwood. Action by Fred Clark against J. E. Baker, revived in the name of Carrie A. Baker, as administratrix. Judgment for the plaintiff, and defendant’s administratrix appeals. All the counts, except 4, 6, and 7, as amended, were withdrawn, and trial was had upon the same.

Heard before Hon. John H. Miller. Action by John B. Donaldson against the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals. The following is the complaint; Count 1.

Heard before Hon. Thomas W. Coleman, Jr. Action by J. E. Johnson and others, against James McFry in trover and. conversion. Judgment for defendant, and plaintiffs appeal.

Heard before Hon. C. W. Ferguson. Action by A. J. Cheatwood against the Louisville & Nashville Railroad Company for damages for failure to deliver, and for delay in delivering household goods. Judgment for plaintiff, and defendant appeals.

Heard before Hon. J. J. Curtis. Action by C. W. Harris against the Stith Coal Company for personal injuries. Judgment for plaintiff, and defendant appeals.

Heard before Hon. A. E. Gamble. Action by Frank B. Bricken against Short Sikes in assumpsit, and in tort, for the destruction of a horse and vehicle committed to his care for hire as a liveryman. Judgment for defendant, and plaintiff appeals.

Heard before Hon. C. B. Smith. Action by A. F. Morton against the Pratt Consolidated Coal Company for damages to his land, and property resulting from the maintenance of a private nuisance. Judgment for plaintiff , and defendant appeals.

Heard before Hon. W. W. Pearson. Action by W. A. Davis against the Louisville & Nashville Railroad Company for damages to goods in transit. From a ruling of the court not shown plaintiff took a nonsuit with bill of exceptions, and appeals.

Heard before Hon. Gaston Gunter. Action by J. D. Roy against the Seaboard Air Line Railroad Company for damages for killing a mule. Judgment for defendant, which on motion of plaintiff, was set aside and new trial ordered, from which order defendant appeals.

Heard before Hon. J. C. B. GwiN. Action by Fritz Risenstein against the Louisville & Nashville Railroad Company for a failure to deliver, and for injury to household goods. Judgment for plaintiff and defendant appeals.

Heard before Hon. J. W. Mabry. Action by J. M. Baker, as administrator, against the Western Union Telegraph Company, for damages for failure to deliver a telegram. Judgment for the plaintiff, and the defendant appeals.

Heard before Hon. C. W. Ferguson. Action by Georgia Ann Alexander against the Union Cemetery Company and others for damages for a denial of the right of sepulture. Judgment for plaintiff in the sum of $400, and defendant appeals.

Heard before Hon. Ed T. Albritton. Action by J. M. Head against J. L. Knox & Co. on the common counts and for damages for the conversion of the entire crop raised by F. H. Sandley and John Sandley during the year 1913. Judgment for defendants, and plaintiff appeals. Head claimed under a mortgage executed by the two Sandleys on January 16, 1913, covering their live stock and the entire crops to be raised by them during the years 1913, 1914, and 1915 in Covington county.

Heard before Hon. S. L. Brewer. Action by Lauderdale & Worthy against D. W. Baker and others, in trover and case. Judgment for plaintiff and defendants appeal.

Heard before Hon. C. P. AlmoN. Action by Uriah White, Jr., against the Northern Alabama Railway Company for damages for killing a mule. Judgment for plaintiff and defendant appeals.

Heard before Hon. W. W. Haralson. Trover by W. I. Scott as guardian of Mabel Ricketts and others, against John Martin for the conversion of certain crops. Judgment for plaintiff and defendant appeals.

Heard before Hon. J. J. Curtis. Action by Emmett Westbrook against the Sloss-Sheffield Steel & Iron Company, for injuries sustained while in its employment. Judgment for plaintiff and defendant appeals.

Heard before Hon. John H. Miller. Action by Mrs. S. E. Wilson against the Birmingham, Ensley & Bessemer Railroad Company, for damages for injury while a passenger. Judgment for plaintiff and defendant appeals.

Heard before Hon. D. W. Speake. Suit by E. L. Kendall & Co. against the Southern Railway Company, for damages for the destruction of certain cedar poles alleged to have been burned by fire set out from a locomotive of defendant. Judgment for plaintiff, and defendant appeals. There were five counts in the complaint, but only four went to the jury, as the first count was stricken on demurrer. The facts sufficiently appear. The following charges were refused the defendant.

Heard before Hon. H. B. Foster. Action by Mrs. Evie Emerson and others against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals. As originally instituted the suit was by Mrs. Evie Emerson alone, and counted on a failure to deliver the following telegraphic messages, delivered to it at Colling, Ala., to be transmitted at Cotton Dale, Ala.: “Colling, Ala., March 8th, 1911 to M. C. Fitts Cotton Dale, Ala. Mrs. Slayton very low.

Heard before Hon. John C. Pugh. Action by Mrs. Elva Hoskins against the Birmingham, Ensley & Bessemer Railroad Company. From a judgment for plaintiff, defendant appeals.

Heard before Hon. S. L. Brewer. Action by the Goodwater Manufacturing Company against the Central of Georgia Railway Company, for damages for failure to deliver goods. Judgment for plaintiff and defendant appeals.

Heard before Hon. B. M. Miller. Action by A. L. Blankenship against the Southern Railway Company, for damages for killing a cow. Judgment for plaintiff and defendant appeals.

Heard before Hon. E. C. Crow. Action by L. P. Smith against the Birmingham Railway, Light & Power Company, for damages for being ejected from one of its cars. Judgment for plaintiff and defendant appeals.

Heard before Hon. C. B. Smith. Action by Pearl Frazier against the Birmingham Railway, Light & Power Company for damages for injuries while a passenger. Judgment for plaintiff and defendant appeals. The pleadings sufficiently appears, as do the questions of the court’s oral charge.

Heard before Hon. H. A. Pearce. Action by T. J. Dawson against the Louisville & Nashville Railroad Company, for damages for injuries sustained while a passenger. Judgment for plaintiff and defendant appeals.

Heard before Hon. W. W. Pearson. Action by J. B. Stephens against the City of Montgomery, for negligently maintaining a ditch. Judgment for plaintiff, and defendant appeals. The cause went to the jury on counts 9, 10, 11, 12, 15, 16, 17, and 18.

Heard before Hon. John. H. Disque. Action by Noah Chaviers against O. H. Bartlett. Judgment for plaintiff, and defendant appeals. The complaint is as follows: (1) Plaintiff claims of defendant $1,000 damages for the wrongful taking of the following goods and chattels, the property of plaintiff, to-wit, one mule.

Heard before Hon. W. W. PEARSON. Action by the Dixie Fertilizer Company against C. B. Teasley, for the conversion of a bale of cotton. Judgment for defendant and plaintiff appeals.

Heard before Hon. W. W. Pearson. Action by J. E. Laney against the Louisville & Nashville Railroad Company for damages for injury to him while a passenger. Judgment for plaintiff, and defendant appeals.

Heard before Hon. John H. Miller. Action by Weaver Hawkins against the Western Union Telegraph Company. Judgment-for plaintiff, and defendant appeals. Count 2 is as follows: Plaintiff claims of the defendant the further sum of $1,500 as damages for that, heretofore, on, to-wit, January 3, 1913, the defendant was a corporation engaged in the business of transmitting messages for hire by means of telegraph from Social Circle, Ga., to Birmingham, Ala.

Heard before Hon. J. C. B. GwiN. Action by Amelia Myers against the Louisville & Nashville Railroad Company, for damages for setting her down at the wrong-station. Judgment for plaintiff and defendant appeals.

Heard before Hon. John C. PUGH. Action by Miss E. M. Shepherd against the Birmingham Candy Company, for damages for injuries while attempting to remove an obstruction from a candy mixer. Judgment for plaintiff and defendant appeals.

Heard before Hon. J. C. B. Gwin. Action by Mary A. Torpy against the Birmingham Railway, Light .& Power Company, for damages for injury for being carried beyond her destination. Judgment for plaintiff in the sum of $400.00, and defendant appeals.

Heard before Hon. John H. Miller. Action by Sarah E. Clark against John M. Morrison and others for damages for being struck by an automobile. Judgment for plaintiff, and defendants appeal.

Heard before Hon. John H. Disque. Action by W. N. Jones against Loui Hart and the Bellevue Highlands Company for an assault and battery. Judgment for plaintiff, and defendants appeal. Counts 1 and 2 were for simple assault and battery. Count 3 was for wanton, willful, or intentional assault and battery.

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. E. C. Crow.</p> <p>Action by Mrs. Eva H. Cohdon. against J. E. Hill, for damages to. an automobile. Judgment for plaintiff ¿nd defendant appeals.</p>

Heard before Hon. Charles W. Ferguson. Action by Henry Edwards against the Sloss-Sheffield Steel & Iron Company, for damages suffered while in its mine. Judgment for plaintiff, and defendant appeals.

Heard before Hon. E. C. Crow. Action by Nathan B. Camp against Charles M. Allen for damages for killing a dog. Judgment for plaintiff and defendant appeals.

Heard before Hon. John H. Miller. Action by Rader Pilgrim, a minor, against the Sloss-Sheffield Steel & Iron Company, for damages for injuries suffered while in its employment. Judgment for plaintiff and defendant appeals.

Heard before Hon. C. B. Smith. Action by Mrs. Charles Barnitz against the Central of Georgia Railway Company, for damages for injury for being carried beyond her destination. Judgment for plaintiff and defendant appeals.

Heard before Hon. Saffold Berney. Action by Dan Brooks against the Pensacola, St. Andrews & Gulf Steamship Company. Judgment for plaintiff, and defendant appeals. The following allegations are common, and form a part of each count of the complaint: During the entire month of June, 1913, plaintiff was employed by defendant as a roust-about on defendant’s steamship Tarpon, and one John Kane was employed by defendant as first mate on or of said steamship.

Heard before Hon. John H. Miller. Action by W. S. Shepherd against the Postal Telegraph-Cable Company. From a judgment for plaintiff, defendant appeals. The following is count 4: “Plaintiff claims of defendant the sum of * * * as damages, for that * * * the defendant was engaged in the business of transmitting messages by-wire between, to-wit, the cities of Birmingham, Ala., and Los Angeles, Cal., for a reward, and was a common carrier of telegraphic messages.

Heard before Hon. Thomas W. Wert. Action by Newton R. Carroll against the Southern Railway Company for damages for injury while a passenger. Judgment for plaintiff, and defendant appeals. The complaint is as follows: “Plaintiff claims of defendant * * * as damages for that on, to-wit, * * * the defendant owned or maintained railroad tracks * * * over and along which it propelled trains of cars and was engaged in transporting thereon passengers for a reward.

<p>Trover.</p> <p>1. Trover; Action by Mortgagee; Estoppel. — Where a mortgagee had held mortgages upon the crops of the same mortgagor for about eight years, and during that time the mortgagor had sold the cotton when' and to whom he saw fit without consulting the mortgagee, and had paid the proceeds to the mortgagee, but the mortgagee had never authorized the sale of the bale of cotton in suit, nor received its proceeds, and there was a balance due on the mortgage from the mortgagee to him, he was not estopped from suing the purchaser for a conversion.</p> <p>2. Sale; Bona Fide Purchaser; Notice. — The registration of a chattel mortgage in the probate office of the county in which the property mortgaged is situated was notice to all the world, including subpurchasers, under §§ 3373, 3386, Code 1907.</p>

Heard before Hon. D. W. Speake. Action by Farell & Braley against the Nashville, Chattanooga & St. Louis Railway for damages for injuries to stock in transit. Judgment for plaintiffs and defendants appeal.

Heard before Hon. Thomas W. Wert. Trover by E. W. Bussey against the Hughes & Tidwell Supply Company for the conversion of a bale of cotton. Judgment for plaintiff and defendants appeal.

Heard before Hon. E. C. Crow. Action by Mrs. Leila Minderhout against the Postal Telegraph-Cable Company for damages for injury received in a collision with one of its messenger boys. Judgment for plaintiff and defendant appeals. ’

Heard before Hon. M. Sollie. Action by John A. Johnson and another against Lee Wise and another, to enforce an award. Judgment for plaintiff and defendants appeal.

Heard before Hon. H. A. Sharpe. Action by Sol. Moman against the Atlas Life Assurance Company. Judgment for plaintiff, and defendant appeals. The action was upon a policy issued on the life of Lizzie Moman September 23, 1913, the said Lizzie dying October 14, 1913, after having paid two weekly premiums, and the premiums having been paid beyond the date on which said Lizzie died.

<p>Assumpsit.</p> <p>1. Principal and Agent; Authority; Traveling Salesman. — As a general rule traveling salesmen have no authority to receive payment for goods sold on time, binding on the principal.</p> <p>2. Sales; Action for Price; Evidence. — Where the books of defendant were in such a condition that the jury might infer that the accounts showing payment had been falsified, the admission of the fact in evidence that defendant had not taken a business course, was prejudicial error.</p> <p>3. Same; Materiality. — Where the action was for goods sold and the defense was payment, evidence as to the retail price of certain articles in the account was immaterial.</p>

Heard before Hon. Saffold Berney. Proceedings for rent begun by attachment by Ernest F. Ladd against Eugene H. Rencher, with claim interposed to certain of the goods by the Parker-Blake Company, Limited. Judgment for plaintiff as against the claimant, and claimant appeals.

Heard before Hon. J. C. B. Gwin. Action by Josie Moore against the American National Insurance Company on a policy issued on the life of Minnie Marshall. Judgment for plaintiff and defendant appeals.

Heard before Hon. S. L. Brewer. Action by the Town of Dadeville and others against W. H. Wynn and others on an injunction bond. Judgment for defendants and plaintiffs appeal.

Heard before Hon. H. A. Sharpe. Action by J. W. Barclay against John W, Sibley for breach of contract. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear. The following charges were refused to defendant: (3) The court charges the jury that if they believe from the evidence that the market value of the stock was par in December, 1911, then plaintiff cannot recover more than nominal damages of defendant in this ease.

Heard before Hon. W. W. Haralson. Action by the Cox Hat Company against W. N. Adams, in which garnishment was levied on Lon H, Goodwin, who answered, suggested that Charges McNaron claimed the money in his hands. From a judgment for claimant, plaintiff appeals.

Heard before Hon. W. W. HARALSON. Action by E. E. Matthews against J. B. Brown & Co. and others, for damages for breach of warranty in the sale of stock. Judgment for plaintiff, and defendants appeal. The facts sufficiently appear from the opinion. The following charges were refused to defendant: (2) Under the evidence a warranty of the soundness of the mare given by Hubbard would not be binding on either Brown or Gilbreath.

Heard before Hon. E. S. Lyman. Assumpsit by Walter H. Moss against the Bowden Lime Works and the individuals composing the firm. Judgment for plaintiff, and defendants appeal.

Heard before Hon. Saffold Berney. Assumpsit by Kaleel Broadwell against I. W. Imms. Judgment for defendant and plaintiff appeals.

Heard before Hon. C. P. Almon. Assumpsit by W. A. McRight and another against A. Famed. Judgment for defendant on demurrers to pleas, plaintiff taking nonsuit with bill of exceptions. Plaintiffs appeal.

Heard before Hon. Thomas W. Wert. Action by Agee & Co. against J. M. Steverson. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Bessemer City Court.</p> <p>Heard before Hon. J. C. B. Gwin.</p> <p>Assumpsit by S. M. Lowery against Pink Cornelius. Judgment for plaintiff and defendant appeals.</p>

Heard before Hon. W. W. Haralson. Assumpsit by R. E- Herring against John F. Hooper. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Hugh D. Merrill. Action by Elbert G. Morris against the Southern Woodmen, on a benefit certificate. Judgment for plaintiff and defendant appeals.

Heard before Hon. H. A. Pearce. Assumpsit by the Owens Horse & Mule Company against W. S. Wilson. Judgment for plaintiff, and defendant appeals. The pleas set up: First, the general issue; second, failure of consideration; and, third, breach of warranty in the condition of the mule. Demurrers were sustained to the pleas, and after trial there was judgment for the plaintiff, and an appeal, without bill of exceptions.

Heard before Hon. Saffold Berney. Assumpsit by the Barrett Brothers Shipping Company against C. H. Minge & Company, the defense being set-off. Judgment for plaintiff and defendant appeals.

Heard before Hon. Gaston Gunter. Action by John James against the American Workmen on a policy issued on the life of Corrie James. From a judgment for plaintiff, defendant appeals.

Heard before Hon. C. B. Smith. Action by Charles F. White as Secretary of the Birmingham Bar Association, against Cleon B. Rogers, as Treasurer of Jefferson County, to recover the amount designated by the Local Act for the support of the Jefferson County Law Library. Judgment for plaintiff and defendant appeals.

Heard before Hon. T. L. Sowell. S. Hamilton had judgment against J. P; Myers, and after judgment had garnishment issued in aid thereof, and served upon J. M. Stovall. From a judgment against the garnishee he ap. peals.

Heard, before Hon. W. W. Haralson. Action by William P. Gillespie against the Knights of Modern Maccabees on a mutual benefit certificate for partial disability. Judgment for plaintiff and defendant appeals..

Heard before Hon. D. W. Speake. Action by J. H. Roden against A. M. Dunaway. From a judgment for plaintiff, defendant appeals. The facts sufficiently appear from the opinion. The following charges were refused to defendant: (6) If you find from the evidence that there was an entire contract to bore the well, and that plaintiff did not perform the contract in full, but only in part, then your verdict should be for defendant.

Heard before Hon. D. W. Speake. Assumpsit by the Citizens’ National Bank against G. F. Buckheit. Judgment for defendant, and plaintiff appeals. The complaint alleges that the four notes were made payable to the Lipps Bottle Washer Company, Chattanooga, Tenn., and that before maturity of each of said notes plaintiff became the owner of same for a valuable consideration, and is now the holder and owner of said notes.

<p>Assumpsit..</p> <p>1. Principal and Agent; Restriction of Authority; Notice. — Where third persons relied upon the implied authority of a general agent, restrictions-upon his authority with respect to the necessary or appropriate or usual incidents of the business entrusted to him are not admissible in evidence against such person without notice thereof.</p> <p>2. Same; Territorial Restriction. — Territorial restrictions upon even a general agent’s authority are effectual as to uninformed third persons.</p> <p>3. Insurance; Agent; Implied Authority; Limitations; Evidence. — Where it was admitted that an insurance agent’s authority was limited to one county, and that on a trip into another county he solicited insurance generally, and wrote a policy which was accepted by the company without knowledge of the fact of the trip into the other county, they not holding him out as their agent in that county, the company was not liable for the retention by the agent of the premium paid for the policy applied for in such other county.</p>

Heard before Hon. W. W. Haralson. Action by Oliver Riggins against T. L. Farrow Mercantile Company for damages for breach of contract of rent. Judgment for plaintiff and defendant appeals.

Heard before Hon. A. H. Alston. Action by J. W. Kerr against the Prudential Casualty Company. From a judgment for plaintiff,' defendant appeals. Judgment by default was rendered on May 3, 1915.

Heard before Hon. Henry B. Foster. Assessment proceedings by the City of Tuscaloosa against Mrs. Alonzo Hill. Judgment for contestant, and the City appeals. The facts sufficiently appear from the opinion. The following are the charges referred to in the opinion: (1) If the fair market value of the property of the contestant was not increased by laying the pavement in front of the same, then your verdict should be for the contestant.

Heard before Hon. H. A. Sharpe. Action by L. L. Townley as administrator against J. B. Bur-gin, in which plaintiff’s suit was dismissed for a failure to revive against the administrator of deceased defendant, and plaintiff appeals.

Heard before Hon. W. W. Haralson. Action by Fannie Johnson against the Alabama Great Southern Railroad Company, for damages for injury while a passenger. Judgment for plaintiff and defendant appeals.

Heard before Hon. H. A. Pearce. Detinue by E. R. Porter Company against E. J. Godfrey and others, with affidavit by defendants of claim by R. L. Hunter. Judgment against plaintiff for costs, after judgment for plaintiff against claimant and claimant’s removal by statutory certiorari, and plaintiff appeals.

Clair Circuit Court. Heard before Hon. J. E. Blackwood. Action instituted by W. P. Hardwick against I. V. McLaughlin, to ascertain the damages and costs for taking up and caring for cattle running at large. Judgment for plaintiff, and defendant appeals.

Heard before Hon. John H. Disque. Detinue by Eugene I. Weil, doing business, etc., against V. L. Teabo and another for certain household goods. From a judgment for defendants, plaintiff appeals.

Heard before Hon. Saffold Berney. Proceeding by the State against the Blacksher Company. From an order sustaining a demurrer to the defendant’s plea, the defendant appeals. In August, 1914, the county tax commissioner of Mobile county assessed as an escape the solvent credits of appellant for each of the 5 years from 1909 to 1914, inclusive, at $300 per year.

Original petition in the Court of Appeals. Application by L. L. Townley, as administrator, etc., on the relation of the state of Alabama, against John C. Pügh as judge, for writ of mandamus to compel the allowance of a revivor.

Heard before Hon. John C. Pugh. Petition by Myrtle S. Wililams for new trial in the case of W. G. Tyler v. Myrtle S. Williams, in which… Held: is a large city, containing upwards of 175,000 population; that the said city court of Birmingham has four judges, each of whom hold court separately one from the other, and are in session from the first Monday in October to the last day in June, less some short legal vacations; that the dockets of said city court of Birmingham…

Heard before Hon. Hugh D. Merrill. Detinue by J. T. Stedham against G. W. Robertson. Judgment for defendant, and plaintiff appeals. The plaintiff sued for one light bay horse mule and one 2% wagon.

Heard before Hon. W. W. Pearson. John Glenn was convicted of violating an ordinance of the city of Prattville, prohibiting the sale of liquors, and, on appeal to the circuit court, was again convicted, and he appeals.

<p>Detinue.</p> <p>1. Mortgages; Delivery and Acceptance. — The delivery and acceptance of a chattel mortgage are essential to its validity.</p> <p>2. Same; Contemporaneous Instrument; Construction. — Where the mortgagee, upon delivery of a chattel mortgage, gave the mortgagor a receipt, which was accepted by the mortgagor, reading “Received of Luke Hill one mortgage for $157.49 to cover account due, payable $10 each month, failure to pay any monthly installment will make the whole amount fall due, payable on demand,” the two instruments together constituted a single transaction^ and evidenced the agreement of the parties, and the receipt was admissible in evidence; the two papers being entitled to be construed together.</p> <p>3. Same; Defenses. — Where there was no objection to the issues raised by the plea of the general issue with leave to give in evidence other matters which would constitute a good defense, the mortgagor was entitled to prove that the mortgage debt was not due, as well as to prove payment as a complete defense, and put in issue the amount due on the debt, and prove a set off or counter claim. Also proof of tender of an installment of a mortgage debt, which was_ payable in installments, made after suit brought, was admissible as tending to show a reduction of the amount due on the debt. (Considering together §§ 3789, 3791 and 4899, Code 1907.)</p> <p>4. Same; Tender; Keeping Good. — In detinue by a chattel mortgagee against the mortgagor where a tender was made, the mortgagor must keep his tender good by delivering the money, tendered as an installment, to the clerk of the court, under § 5334, Code 1907.</p> <p>5. Appeal and Error; Harmless Error; Evidence. — Error in refusing to permit defendant mortgagor to be asked concerning the custom of the mortgagee’s trade, which could not have affected the result of the litigation, was harmless, the action being detinue by the mortgagee.</p> <p>6. Same. — In such a case where the record did not show that more than one week’s payment was advanced, or that any bags were purchased by the mortgagor under an agreement introduced in evidence, by the terms of which the mortgagee was to advance to the mortgagor $25 a week to be used in purchasing bags, such as were kept and sold in the mortgagee’s business, any error in admitting such agreement was harmless.</p>

Original petition in Court of Appeals. Petition by the State of Alabama on the relation of H.‘ B. King and others, for mandamus to require revival of a suit in the names of relators as heirs at law of W. C. King, deceased, who was the original plaintiff.

Heard before Hon. Wm. E. Fort. H. E. Craig was convicted of violating a municipal ordinance in the city of Birmingham, and he appeals, but assigns no errors on the record. Appellee moves for an affirmance upon that ground.

<p>Violating Municipal Ordinance.</p> <p>1. Municipal Corporation; Violating Ordinance; Evidence. — Where the prosecution was for violating a municipal ordinance by wilfully hindering a marshal from making an arrest, testimony that when a party who had been engaged in a fight, and whom defendant was holding, was struggling to get loose, he was saying, “Just turn me loose. I will give you $50 to let me get to him,” was admissible as part of the res gestae, and material as shedding light on the motive of defendant in holding the party whom the marshal was seeking to arrest.</p> <p>2. Same. — Where defendant’s purpose in holding a party who had been engaged in a fight, and in not turning such party over to the marshal, was not to prevent or hinder the latter in making an arrest, but was a bona fide effort on the part of defendant to stop the fight or prevent such party from fighting further, defendant was not guilty of violating an ordinance of the town, making it an offense for any person to hinder a marshal in making an arrest, unless defendant subsequently also assaulted the marshal.</p>

Heard before Hon. H. A. Pearce. Josiah Clark was convicted of false pretense, and he appeals.

<p>Appeal from Wilcox Circuit Court.</p> <p>Heard before Hon. B. M. Miller.</p> <p>Eugene English was convicted of the larceny of a cow and he appeals.</p>

Heard before Hon. M. Sollie. Luther Barefield was convicted of a liquor violation, and appeals.

Heard before Hon. T. L. SOWELL. Bob Thornhill was convicted of gaming, and he appeals.

Heard before Hon. A. H. Alston. Jerry James was convicted of murder in the second degree, and he appeals.

<p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. H. P. Heflin.</p>

<p>Appeal from Coffee Circuit Court.</p> <p>Heard before Hon. H. A. Pearce.</p>

<p>Appeal from Houston Circuit Court.</p> <p>Heard before Hon. H. A. Pearce.</p>

<p>Appeal from Bessemer City Court.</p> <p>Heard before Hon. J. C. B. GwiN.</p>

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. E. C. Crow.</p>

<p>Appeal from Fayette Circuit Court.</p> <p>Heard before Hon. Bernard Harwood.</p>

<p>Appeal from Tallapoosa Chancery Court.</p> <p>Heard before Hon. W. W. Whiteside.</p>