Volume 15 — Alabama Appellate Reports

<p>Appeal from Coffee Circuit Court.</p> <p>Heard before Hon. A. B. Foster.</p> <p>John Henderson was convicted of an assault and battery, and he appeals.</p>

Heard before Hon. T. L. Sowell. Oscar Miller was convicted of assault and battery, and appeals. The charge referred to is as follows: The court charges you, gentlemen of the jury, if there is a reasonable doubt of the defendant’s innocence, then should find this defendant not guilty, after conceding all the evidence.

<p>Larceny.</p> <p>1. Appeal and Error; Review; Reserving Ground. — Where the question calling for a confession, after the confession’s voluntary character had been established, was apparently abandoned upon objection, but it was received later without objection, except an objection made after its admission which did not specify any ground, its admissibility was not raised by a timely objection or exception.</p> <p>2. Evidence; Confession; Corpus Delicti. — Where the owner testified that he saw the stolen tobacco at night, that it was gone next morning, and had been stolen in the interval, this was sufficient proof of the corpus delicti to warrant the introduction of the confessions of defendant.</p>

Heard before Hon. H. P. Heflin. Ida Smith, alias Stephens, was convicted of selling prohibited liquors on election day, and she appeals.

<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> <p>The first count charges Sandy Ogden sold, offered for sale, or otherwise disposed of, spirituous, vinous, or malt liquors, contrary to law. The second count charges the same thing as to prohibited liquors and beverages. The third count, in addition, charges that he kept or had in possession for sale, bartered or exchanged spirituous, vinous, or malt liquors contrary to law. The fourth count charges that he engaged in the business of a retailer contrary to law. The fifth count charges that defendant maintained an unlawful drinking place contrary to law. The sixth count charges that he carried on the business of a manufacturer or a distiller of spirituous liquors contrary to law, and the-seventh count charges that he accepted from another for shipment, transportation, or delivery, or to ship, transport, or deliver to another said prohibited liquors or beverages, or any of them. The witness Sutton was permitted to state, after stating that he used no threats or intimidations and made defendant no promises, that defendant asked witness if he thought witness could. get Mr. Sparks to help him, and witness told him that Mr. Sparks was mighty against whisky, and defendant asked the witness what he thought about defendant carrying the whisky to Bob Hambrick, and defendant said maybe he could help him. It was also stated that defendant said it was whisky that he had.</p>

Heard before Hon. J. J. Curtis. E. M. Gibson was convicted of violating the prohibition law, and he appeals. Charge 3 is as follows: The mere having of a liquor license in one’s possession or custody where no liquors are found is not a prima facie case.

<p>Appeal from Barbour Circuit Court.</p> <p>Heard before Hon. M. Sollie. ,</p> <p>William Toney was convicted of violating the prohibition law, and. he appeals.</p>

<p>Appeal from Montgomery Court of Common Pleas.</p> <p>Heard before Hon. M. H. SCREWS.</p> <p>W. O. O’Rear was convicted of having in his possession an unlawful amount of intoxicating liquors, and he appeals.</p>

Heard before Hon.- Henry B. Foster. J. O. Turner was convicted of forgery in the second degree, and he appeals. The juror Rice admitted that he was a brother of the prosecuting officer, James Rice, and the defendant sought to challenge for cause upon that ground, and also moved to strike the name from the jury list from which the jury was to be drawn.

Heard before Hon. Armstead Brown. Howard McLain was convicted of violating the sanitary live stock regulations, and he appeals.

Heard before Hon. G. J. Sorrell. Heard Reeves was indicted for murder in the first degree, and on application for bail was granted same, and the State appeals.

Heard before Hon. Henry B. Foster.. Ada Lane was convicted of violating the prohibition ordinances of the city of Tuscaloosa, and she appeals. The question to the witness Sullivan was as follows: Isn’t it a fact, Mr. Sullivan, that the city has had so many prohibition cases against Charley Lane that you might have become confused as to which case it was stated that the money was given to Charley, and which to Ada? The court overruled defendant’s motion to exclude the answer.

<p>Vagrancy.</p> <p>1. Vagrancy; Evidence; Associates. — Where the prosecution was for vagrancy, as being a prostitute, evidence that the defendant was visited by persons of lewd reputation, that she associated with persons of ill repute, and that she had been seen at places frequented by prostitutes and places of ill repute, is admissible, as having a tendency to compromise her claim of innocence of the offense, notwithstanding these circumstances of themselves might be considered weak and inconclusive.</p> <p>2. Same; Loitering. — In such a prosecution, it was competent to introduce evidence that the defendant had been seen loitering around certain places where prostitutes commonly resorted, since loitering is a term having a well defined meaning in ordinary use, the collective acts constituting it being familiar to all persons.</p> <p>3. Appeal and Error; Finding of Court and Jury; Review. — The rule that the finding of the court or jury, based upon evidence, given ore tenus, is not reviewable on written records, applies to the Pike law court, notwithstanding the act creating said court provides that the reviewing court shall indulge no prsumptions in favor of the finding of the trial court.</p>

<p>Appeal from Morgan Law and Equity Court.</p> <p>Heard before Hon. Thomas W. Wert.</p> <p>Kate Lackner was convicted for vagrancy for keeping a disorderly house, and she appeals.</p>

Heard before Hon. H. A. Pearce. Revenell Diamond was convicted of manslaughter and he appeals. The case was one of a fight in which defendant cut to death his cousin, the defendant being a boy of about 16 years, and the deceased a man about 35. The evidence for the state tended to show an unjustifiable homicide, and that for the defendant tended to show self-defense.

Heard before Hon. Ben D. Turner. Ed Watson was convicted of manslaughter in the first degree, and he appeals. Ed Kelly was shown to be the cousin of the defendant, and the court of its own motion excused him as a juror. Sturdivant, upon his examination as a juror, expressed a doubt as to his willingness to convict upon circumstantial evidence, and was excused by the court of its own motion; the solicitor also excused the juror Sturdivant.

Heard before Hon. Thomas W. Wert. (Ed. Note — This case was reviewed by the Supreme Court, and the decision affirmed. See Ex parte Newsom, 73 South. 1001.) T. J. Newsom was convicted of murder in the second degree, and he appeals. Most of the exceptions to rulings on the evidence sufficiently appear from the opinion.

Heard before Hon. C. P. Almon. Joe Harbin was convicted Of murder in the second degree, and he appeals. Some of the exceptions to evidence sufficiently appear.

<p>Appeal from Houston Circuit Court.</p> <p>Heard before Hon. H. A. Pearce.</p> <p>Ben Haydon was convicted of an assault and battery, and he appeals.</p>

Heard before Hon. S. L. Brewer. Alex Kelly was convicted of an assault with a weapon, and hie appeals. The facts sufficiently appear. The following charges were ref used to defendant; (1) General affirmative charge; (2) affirmative charge as to assault with intent to murder; (3) affirmative charge as to assault and battery; (4) affirmative charge as to an assault.

<p>Appeal from Autauga Circuit Court.</p> <p>Heard before Hon. W. W. Pearson.</p> <p>Henry Elmore was convicted of the larceny of a bale of cotton, and he appeals.</p>

Heard before Hon. W. G. McCorvey. James King was convicted of larceny, and appeals. The facts sufficiently appear.

<p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. A. H. Alston.</p> <p>Robert Taylor was convicted of burglary and he appeals.</p>

<p>Appeal from Walker Law and Equity Court.</p> <p>Heard before Hon. T. L. SOWELL.</p> <p>G. O. Johnson was convicted of violating the prohibition law, and he appeals.</p>

Heard before Hon. A. H. Alston. Richard Wray was convicted of violating the prohibition law, and he appeals. The first count charges the manufacturing, selling, offering for sale, keeping for sale, of prohibited liquors or beverages subsequent to June 30, 1915.

<p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. William E. Fort.</p> <p>James Corbin was convicted of crime and he appeals. •</p>

Heard before Hon. W. W. Pearson. W. L. Dennison was convicted of perjury, and appeals.

Heard before Hon. J. J. Cubtis. John Cowan was convicted of perjury, and appeals.

Heard before Hon. M. B. Abercrombie. Bunk, alias Buster James was convicted for failure to work public road after warning, and he appeals.

<p>Murder.</p> <p>1. Jury; Special Venire; Number. — Where there were 48 regular jurors which, with seven additional ones, were ordered to constitute the special venire, but one juror was not served, and nine failed to answer, and six were excused, the venire was not sufficient under § 32, Acts 1909, p. 319, since the venire in capital cases must consist of not less than 50 jurors.</p> <p>2. Criminal Law; Evidence. — Whether a witness assisted the solicitor to strike juries in all cases in which he made arrests, was immaterial and irrelevant, his custom or interest in other cases being entirely immaterial.</p> <p>3. Same; Motive; Declaration. — As such evidence tended to shed light on the motive and intent of defendant, it was not error to permit the question to a witness as to whether defendant had told him that deceased stole a suit of clothes and a pistol from him.</p> <p>4. Homicide; Evidence; Motive'. — The testimony of a deputy sheriff that he held warrants sworn out by defendant against deceased, was admissible upon the question of motive and intent.</p> <p>5. Evidence; Contents of Written Instruments. — A statement that a warrant a witness had against deceased, charged him with a certain offense, was not proof of contents of the written instrument, but merely evidence of a collateral fact.</p> <p>6. Same; Conclusions. — Questions as to whether a witness noticed any indications of a struggle, and whether the place indicated that deceased had moved around, being descriptive matter, were not objectionable as calling for a conclusion.</p> <p>7. Homicide; Evidence. — The exclusion of evidence that certain witnesses were friendly with certain persons, who in turn were supposed to be friendly to deceased, was not error, as it was evidence of a collateral matter too remote to be material.</p> <p>8. Witnesses; Impeachment; Bias. — While it is always competent to show bias, favor or hostility of a witness to one of the parties, the discretion of the trial court as to cross examination on collateral matters tending to show the credibility of the witness, will not be reviewed unless abused.</p> <p>9. Evidence; Irrelevancy. — Whether a witness heard a party other than deceased or defendant make any statement as to where he was going, was irrelevant to any issue.</p> <p>10. Trial; Remark of Prosecutor. — A statement by the prosecutor that the jury might rest assured that if they convicted defendant, and it was shown to the court that the verdict was not sustained by the law and the evidence, it would be the duty of the court to set it aside, and the court would do so, cannot be said to be improper or prejudicial.</p> <p>11. Homicide; Instruction; Degree. — Where there was nothing in the evidence to support the theory of manslaughter in the 2nd degree, the court will not be put in error for a failure to charge on that degree of manslaughter, as the charge would be abstract.</p> <p>12. Same, — Charges that if there was reasonable ground to believe from the evidence that another than defendant could have killed deceased, then defendant should not be found guilty, was too broad, and pretermitted consideration of defendant’s connection with.the crime, and was abstract, speculative and argumentative.</p>

Heard before Hon. H. P. Heflin. Ben Hutchinson was convicted of murder in the second degree, and appeals. The following charges were refused to defendant: (1) If the jury would be.willing to act on the evidence in this case as if it were in relation to matters of the most solemn importance to their own interest, they must acquit defendant.

<p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. A. H. Alston.</p> <p>Albert Ellis was convicted of an assault with intent to murder and he appeals.</p>

<p>Larceny.</p> <p>Criminal Law; Statute of Limitation; Directing Verdict. — Where it appears affirmatively that the misdemeanor charged was committed more than 12 months before the finding of the indictment, defendant is entitled to a directed verdict; circuit court rule 35 not applying.</p>

<p>Carrying Concealed Weapon.</p> <p>1. Appeal and Error; Review; Objection Below. — In the absence of a bill of exceptions showing that an objection and exception was made and taken to the action of the trial court in permitting the state to amend an affidavit charging defendant with carrying concealed weapons, etc., such action cannot be reviewed on appeal.</p> <p>2. Affidavit; Amendment. — Since, under § 6723, Code 1907, all amendable errors are regarded as amended upon appeal, and since the amendment allowed eliminated one of the offenses charged, the defendant was not prejudiced by the state’s striking from the record the second alternative of the affidavit, charging defendant with carrying a concealed weapon.</p> <p>3. Same; Re-verification. — Where an affidavit charges two offenses in the alternative, and the second alternative is stricken by leave of the court, a re-verification is unnecessary.</p> <p>4. Appeal and Error; Harmless Error; Pleading. — Where no objection was interposed to the amended affidavit because not reverified, any defect will be considered cured under the provisions of § 6723, Code 1907.</p> <p>5. Affidavit; Amendment; Re-verification. — Where an affidavit charges two offenses in the alternative, the striking of one of the alternatives was not the institution of a new prosecution in such a sense as to require a re-verification of the amended affidavit.</p> <p>(Ed. Note' — This cause was reviewed by the Supreme Court, and the writ denied. See Ex Parte Nelson, 198 Ala., 73 South. 1001.)</p>

<p>Violating Prohibition Law.</p> <p>1. Pleading; Abatement; Waiver. — Ordinarily a plea in abatement is waived by the filing of a plea in bar.</p> <p>_ 2. Criminal Law; Verdict; Responsiveness. — Where defendant pleaded a misnomer and not guilty, and issue was joined on both pleas, and by consent they were submitted and tried together upon an instruction to consider the merits of the case if the jury found against the plea of misnomer, a verdict of guilty was not responsive to the issue of misnomer pleaded in abatement.</p> <p>3. Criminal Law; Abatement; Trial on the Merits. — The sustaining of a plea in abatement alleging a misnomer is not a bar to a trial upon the merits upon a proper indictment or affidavit charging defendant by his correct name.</p>

<p>Appeal from Shelby County Court.</p> <p>Heard before Hon. E. S. Lyman.</p> <p>Max Strother was convicted of violating the prohibition law and he appeals.</p>

<p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. H. P. Heflin.</p> <p>Henry Mitchell was convicted of violating the prohibition law, and he appeals.</p>

<p>Appeal from Morgan Law and Equity Court.</p> <p>Heard before Hon. Thomas W. Wert.</p> <p>Jim Ogles was convicted of violating the prohibition law, and he appeals.</p> <p>The following are the charges refused to defendant;</p> <p>1 and 2. General affirmative charge.</p> <p>(3) I charge you that the material or beer found in the barrels and box was not one of the liquors or beverages prohibited by law.</p>

<p>Appeal from Butler Circuit Court.</p> <p>Heard before Hon. A. E. Gamble.</p> <p>W. E. Foshee was prosecuted for a failure to obtain an automobile license, and on conviction he appeals.</p> <p>(This cause was reviewed by the Supreme Court upon application of defendant for certiorari, and the certiorari was denied. See Foshee v. State, 198 Ala..........; 72 South. 999.)</p>

<p>Assault.</p> <p>1. Criminal Law; Trial; Appointing a Stenographer. — Although a stenographer appointed in the place of and during the illness of the official stenographer was from the office of an attorney assisting in the prosecution, yet_ where the bill of exceptions was complete, and there was nothing to indicate that defendant was injured by the substitution, the appointment was proper, and authorized under Acts 1909, p. 265.</p> <p>2. Charge of Court; Assuming Facts. — A charge which assumes the credibility of testimony, or is predicated upon testimony that is in conflict, assuming its truthfulness, was properly refused.</p> <p>3. Same; Submitting Law Question. — Charges which submit to the jury the issue as to what constitutes self defense submits a question of law, and are bad.</p>

Heard before Hon. J. S. Williams. (On application of the state this cause was reviewed by the Supreme Court, and was affirmed. See Ex parte State in re. Brooms, 197 Ala. 419, 73 South. 35.) Hugh Brooms was convicted of violating the prohibition law and he appeals.

<p>Petit Larceny.</p> <p>1. Criminal Law; Jurisdiction. — The jurisdiction of the circuit court attaches in petit larceny cases only by indictment preferred by a grand jury empaneled in that court, or on appeal from some court having jurisdiction of the offense, and over which the circuit court exercises appellate jurisdiction.</p> <p>2. Same; Appeal; Record. — Where the record on appeal from the circuit court contained what purported to be a certified copy of a judgment of a mayor’s court similarly entitled, but contained no certificate of appeal from such court, and no appeal bond, such record showed no appeal originally from the mayor’s court.</p> <p>3. Same; Dismissal. — Where the judgment of the circuit court showing a conviction for petit larceny was not based upon an indictment originating in that court, nor on an appeal from a lower court, the judgment is not void, and will support an appeal, since the offense is one over which that court is given original jurisdiction.</p> <p>4. Same. — Such judgment, however, is erroneous and will be reversed if not based on an indictment or on an appeal from the lower court.</p> <p>5. Same; Motion and Arrest of Judgment. — A motion to arrest a judgment in the circuit court because not based upon an indictment, or upon an appeal from a lower court should be granted.</p>

<p>Appeal from Marion Circuit Court.</p> <p>Heard before Hon. C. P. Almon.</p> <p>Frank Allsup, alias, was convicted of murder in the second degree, and he appeals.</p>

Heard before Hon. H. A. Pearce. DeWitt Worrell was under indictment, and the state offered, before proceeding to trial, to substitute a part of the record. The court granted the motion and defendant appeals.

<p>Appeal from St. Clair Circuit Court.</p> <p>.Heard before Hon. J. E. Blackwood.</p> <p>Wm. C. Keith was convicted of murder in the second degree, and he appeals.</p> <p>Deceased was one Thomas Willingham. The objections to evidence sufficiently appear. The following charges were refused to defendant: (1) The jury must be satisfied clearly, fully, and conclusively, and to a moral certainty, of defendant’s guilt before they can convict him.</p> <p>(2) Before you can convict defendant you must be satisfied to a moral certainty, not only that the proof is consistent with defendant’s guilt, but that it is wholly inconsistent, etc.</p> <p>(4) Same as 2.</p> <p>(5) If accused, with no intention of bringing on the difficulty, approached deceased in a peaceful manner, and deceased made the first hostile demonstration by threat, or by throwing rocks at defendant, or by appearing to do so at the time defendant was in such proximity to deceased as rendered it dangerous to attempt flight, and if you believe that rocks, if thrown, would have produced death or great bodily harm, then defendant is under no duty to retreat, and you cannot convict defendant.</p> <p>(7) If you believe defendant was free from fault in bringing on the difficulty, and approached deceased in a peaceful and orderly manner, and deceased replied angrily and insultingly, ;and advanced towards defendant with a drawn rock in his hand in such manner as to indicate to a reasonable mind that his purpose was to kill defendant, then defendant was authorized to anticipate and fire first.</p> <p>. (6) If defendant did not provoke or bring on the difficulty, and you further believe that he was on his own ground at the time he shot deceased defendant was under no duty to retreat, and he could repel force by force to the extent of taking the life of his adversary.</p>

<p>Appeal from Marshall Circuit Court.</p> <p>Heard before Hon. W. W. Haralson.</p> <p>Buck Roden was convicted of homicide and he appeals.</p>

<p>Appeal from Madison Law and Equity Court.</p> <p>Heard before Hon. J. H, Ballentine.</p> <p>(This cause was reviewed by the Supreme Court, and the writ denied. See Dickey v. State, 197 Ala. 610, 73 South. 72.)</p> <p>Cecil Dickey was convicted of an assault with intent to murder one Stokely Milner, and he appeals.</p> <p>The exceptions to evidence sufficiently appear from the opinion, as do the tendencies of the evidence. The following is the charge given for the state:</p> <p>If you believe from all the evidence in this case beyond a reasonable doubt that the defendant is guilty, although you may believe it is possible that he is not guilty, you must convict him.</p> <p>The following are the charges referred to as refused to the defendant:</p> <p>(1) The court charges the jury that under the evidence in this case Milner did not have any lawful authority to seize liquors without a warrant, simply because it was in or at the mill, whether he was marshal or not.</p> <p>(2) The court charges the jury that the town marshal of New Hope had no authority to search and enter the mill and seize liquor at the mill without a warrant.</p> <p>(5) To reduce the offense to an assault and battery it is not necessary that the defendant, at the time he struck the blow, should have been unconscious of what he was doing, but if there was sufficient provocation to excite sudden passion, and defendant acted under such passion, then the presumption is that passion disturbed the sway of reason, and made him regardless of his act, and if the jury believe this from the evidence, then they may find him guilty of an assault and battery merely.</p> <p>(6) The court charges the jury that if the defendant, on seeing his father dead or dying, bleeding and gasping for breath, under such circumstances as would cause an ordinary man and reasonable man to act upon them through an overpowering feeling of resentment, rendering his mind incapable of cool reflection, and that the defendant was acting under such impulse of resentment and without reflection and not from malice, his act was not in law a malicious act, and he would not be guilty of an assault with intent to murder, and you should not convict him of more than an assault and battery.</p> <p>(11) If the jury believe the evidence in this case, there was not the lapse of sufficient time after defendant saw his father dead or dying until the shooting by the defendant in this case for what the law terms “cooling time.”</p> <p>(14) If the father of defendant was authorized by Owens, the justice of the peace, in writing to arrest Milner under a warrant for him, and he undertook to arrest him, and Milner resisted and killed him, this was unlawful and unjustifiable.</p>

Heard before Hon. John H. Miller. (On application of the state the Supreme Court reviewed the decision in this case, and denied the writ. See Ex parte State v. Noah, 197 Ala. 701, 72 South. 618.) Tom Noah was convicted of burglary and he appeals,

<p>Appeal from Bullock Circuit Court.</p> <p>Heard before Hon. J. S. Williams.</p> <p>Dave Thomas, alias, was convicted of larceny and he appeals.</p>

Heard before Hon. B. M. Miller. (This case was reviewed by the Supreme Court on certiorari, and the writ denied. See Rogers v. State, ex parte, 198 Ala. 73 South. 1001.) John Rogers was convicted of manslaughter in the first degree and he appeals. The pleas referred to here present the same matter as that presented by the appeal in Ex parte Rogers, 190 Ala. 627, 67 South. 253.

<p>Appeal from Macon Circuit Court.</p> <p>Heard before Hon. S. L. Brewer.</p> <p>Maulty Pickett was convicted of the larceny of a heifer and. he appeals.</p>

<p>Larceny.</p> <p>1. Evidence; Testimony of Accomplices. — Under § 7897, Code 1907, a conviction for a felony cannot be had on the testimony of an accomplice unless such testimony is corroborated by other evidence tending to connect defendant with the offense.</p> <p>2. Same. — Before the prohibition contained in § 7897, Code 1907, can be invoked in favor of a defendant it must clearly appear that the witness giving such testimony is an accomplice.</p> <p>3. Same. — The fact that a witness is jointly indicted with defendant does not per se raise a presumption against the state that he is an accomplice, and his evidence may be used subject to proof as to whether or not he was an accomplice.</p> <p>4. Charge of Court; Directing Verdict. — Where the only evidence connecting defendant with the offense was given by an. alleged accomplice, the affirmative charge was properly refused unless it clearly appears ~that the witness was an accomplice.</p> <p>5. Same; Invading Jury’s Province. — If based on the fact of complicity, a charge instructing that the jury must believe a certain witness alleged to be an accomplice before the jury could convict, was properly refused as invasive of the province of the jury; and if not based on the fact of complicity it was properly refused as singling out the testimony of one witness as well as being misleading.</p>

<p>Violating Prohibition Law.</p> <p>Appeal and Error; New Trial; Ground. — Section 2846, Code 1907, as amended by Acts 1911, p. 198, did not authorize appeals in criminal cases from judgment overruling motions for new trial, and where the appeal was perfected before the enactment' of Acts 1915, p. 722, the court will not review an appeal where the record contained the bill of exceptions only as to denial of a new trial, and the record showed no error.</p>

Heard before Hon. F. M. T. Tankersly. Thomas Hudgens, being arrested on warrants charging violation of Loe; Acts 1915, p'. 85, petitioned the probate court for writ of habeas corpus, and from the judgment denying the petition, he appeals.

<p>Appeal from Mobile City Court.</p> <p>Heard before Hon. O. J. Semmes.</p> <p>Henry Goodman was convicted of murder in the second degree, and appeals.</p> <p>The matters sufficiently appear as to charges A; B, and C. The other charges refused defendant are as follows:</p> <p>(8) I charge you, gentlemen of the jury, that it is for you to determine from the facts whether the killing is deliberate or premeditated, and it is not a presumption of law from the use of a deadly weapon.</p> <p>(10) If the evidence in this case is such as to raise in your minds a reasonable doubt that at the time the fatal shot was fired the defendant did not fire it with the intention of depriving Geneva Goodman, or her mother, of life, then you cannot find the defendant guilty of manslaughter in the first degree.</p>

<p>Larceny.</p> <p>1. Larceny; Evidence. — Where there was evidence that the goods recently in possession of defendant were stolen by some unknown person, the defendant’s failure to make reasonable explanation of his recent possession of the goods, raises a presumption of guilt.</p> <p>2. Charge of Court; Directing Verdict. — Where the evidence not only carried inferences of his guilt but was strong enough to carry conviction to the minds of the jury, defendant was not entitled to the affirmative charge.</p> <p>3. Larceny; Instructions. — A charge that the mere unexplained possession of stolen property is not evidence of guilt, if referring to recent possession, is an incorrect statement, and if not, is abstract, and calculated to mislead.</p> <p>4. Charge of Court; Covered by Those Given. — The court will not be put in error for refusing duplicate charges, or for refusing to give charges substantially covered by the oral charge, or written charges given.</p> <p>5. Larceny; Instructions. — Where there was evidence under which defendant might be convicted as particeps criminis for complicity in the taking, it was proper to refuse an instruction predicated upon a felonious asportation by defendant.</p>

<p>Assault With Intent to Murder.</p> <p>1. Assault with Intent; Evidence; Self Defense. — Where the witness for the state testified that he did not know, and could not tell whether the assaulted party was trying- to draw a gun, he should not have been allowed to state to the jury what his judgment on that subject was, as his statement would be purely speculative, and invasive of the province of the jury.</p> <p>2. Evidence; Impressions. — A witness may testify as to his impressions drawn from collective facts, since in so doing he is deposing to facts as contradistinguished from mere opinions, and is giving but a shorthand rendering of a composite fact.</p> <p>3. Assault with Intent; Dangerous Character; Specific Acts. — A defendant should not be permitted to show by specific acts, such as a previous difficulty witih another, that his antagonist was a dangerous and blood-thirsty man.</p> <p>4. Same; Intoxication. — The fact that the person assaulted had been drinking the day before the difficulty, was too remote to show his condition mentally at the time of the assault.</p> <p>5. Same. — Evidence as to whether defendant worked for a certain person, was irrelevant and -immaterial, and if relevant, its exclusion was not prejudicial, where defendant afterwards testified to the same fact without objection.</p> <p>6. Same; Defenses. — The fact that a shot fired did not hit the assaulted party, would not relieve defendant from liability to a conviction for assault with intent to murder.</p>

<p>Larceny.</p> <p>1..Larceny; Element; Intent. — A felonious taking is an. essential ingredient of the offense of larceny.</p> <p>2. Same; Jury Question. — Under the evidence in this case it is a question for the jury, whether or not the larceny of the mule was innocent and not felonious.</p> <p>3. Same. — The fact that a defendant acquired possession through a loan of the mule in furtherance of a fraud, intending to steal it, would constitute larceny, and his holding would be tortious, and he would be a trespasser ah initio, instead of having a temporary possessory right as a gratuitous bailee.</p> <p>4. Criminal Law; Insanity; Necessity of Pleadings. — Section 7176, Code 1907, requires insanity to be specially pleaded, and in the absence of such a plea, it was proper to exclude the question put to a physician as to defendant’s mental condition.</p> <p>5. Larceny; Instructions. — Defendant was not entitled to the affirmative charge, where there was a conflict in the evidence as to whether the original taking was with a felonious intent.</p> <p>6. Same. — Larceny of a mule being a felony irrespective of value a charge hypothesizing an acquittal upon failure to prove the value of the mule, was properly refused.</p> <p>7. Same. — A charge that unless the jury believe beyond a reasonable doubt that defendant did not intend to steal the mule at the time W. let him have it, then they should acquit, is not only involved and misleading, but properly refused as hypothesizing an acquittal upon a reasonable doubt of defendant’s innocence instead of his guilt.</p>

Heard before Hon. W. G. McCorvey. Lucean Andress was convicted of an assault with a weapon, and he appeals. The witness Riley Eddins, a nephew of the man alleged to Lave been assaulted, after testifying to the particulars of the difficulty, was asked if he saw the assaulted person armed. He replied that about 20 minutes after the difficulty, and after his uncle had gone home, he passed there and saw him. Objection was sustained.

<p>Appeal from Houston Circuit Court.</p> <p>Heard before Hon. H. A. Pearce.</p> <p>Cliff Ward was convicted of an assault and battery and he appeals.</p>

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

<p>Appeal from Gadsden City Court.</p> <p>Heard before Hon. James A. Bilbro.</p> <p>Lin Gobel, alias Lin Goble, etc., was convicted of vagrancy, and he.appeals.</p> <p>The facts sufficiently appear. Charge B refused to defendant is as follows:</p> <p>(B) If you find from the evidence in this case that after defendant married his wife, and while they were living together, that the wife of the defendant committed an act of adultery, and that the defendant abandoned her after said act of adultery and because of such conduct on her part, then you cannot find the defendant guilty.</p> <p>(C) If the jury find from the evidence in this case, after considering all the evidence, that the defendant abandoned his wife because she slept with Charley Duncan, or because of her conduct with any other person, then you cannot find the defendant guilty under this indictment.</p>

<p>Levying Blackmail.</p> <p>1. Criminal Law; Verdict; Several Counts. — A verdict responding to only-one count of several in the indictment operates as an acquittal as to the other counts.</p> <p>2. Threats; Blackmail; Indictment. — Under § 6391, Code 1907, an indictment charging that defendant levied blackmail on a certain named person by threatening to make disclosures injurious to his character by publication, for the purpose of getting money from him, or other benefits contrary to law, etc., substantially follows the language of the statute, and is sufficient.</p> <p>3. Same; Evidence; Other Transactions. — Where the state claimed a conspiracy between the two defendants to levy blackmail, and defendant admitted the receipt of money to be deliverd to the co-defendant, but claimed that it was for the expense of changing the type in a proposed newspaper article, it was competent to introduce evidence of similar transactions between defendant and others, as tending to give character to the act herein questioned, and the intent with which defendant acted.</p> <p>4. Charge of Court; Directing Verdict. — Where the evidence affords reasonable inferences in support of the charge, a defendant is not entitled to have the verdict directed.</p> <p>5. Threats; Blackmail; Instruction. — Where the evidence tended to show that defendant and another were acting together in a general scheme of blackmail, defendant was not entitled to an instruction to find him not guilty unless the jury believed beyond a reasonable doubt that the money was paid to defendant as the result of his threat of publication of the newspaper article.</p> <p>6. Same. — A charge that defendant could not be convicted on evidence that his alleged co-conspiracy admitted that he telephoned the victim and threatened him with publication of the proposed article, was properly refused as ignoring evidence of the conspiracy, as well as giving undue prominence to certain other evidence.</p> <p>7. Same. — A charge predicating defendant’s guilt upon his connection with the.paper in which it was proposed to publish the blackmailing article, was properly refused.</p> <p>(Ed. Note — This case was reviewed by Supreme Court upon certiorari, and the writ denied. See Brown v. State, 198 Ala. 700, 73 South. 999.)</p>

<p>Levying Blackmail.</p> <p>Threats; Blackmail; Evidence. — In view of the provisions of . § 6219, Code 1907, in a prosecution for levying blackmail, where defendant is shown to have conspired with another in the commission of the offense, evidence of other similar transactions by the co-conspirator of defendant are admissible as tending to show the character and conduct of the -business in which defendant became a partner, notwithstanding defendant was not connected directly with such similar transactions.</p> <p>(Ed. Note — This cause was reviewed by Supreme Court upon certiorari and the writ denied. See Howie v. State, 198 Ala. 701, 73 South. 1000.)</p>

Heard before Hon. Thomas W. Wert. Charlie Ross was convicted of a violation of the prohibition laws, and appeals. The trial was had before the court without the intervention of a jury, and resulted as stated. The evidence tended to show the finding of certain pints and parts of pints of whisky in a box in a room connected with a barber shop, and that there were poker chips and cards also in the box. The evidence was in dispute as to who was the owner or manager of the shop.

Heard before Hon. M. Sollie. Cosco Huguley, alias Coscoe Huguley, was convicted of murder in the second degree, and he appeals. The matters concerning which the opinion treats sufficiently appear therefrom. As a sample of the refused charges concerning the right of dwelling or curtilage, charge 3 is as follows: (3) The court charges the jury that there is no evidence in this case which as a matter of law makes the defendant at fault in bringing on the difficulty.

<p>Appeal from 'Colbert Circuit Court.</p> <p>Heard before Hon. C. P. AlMon.</p> <p>Oscar Johnson was convicted of homicide and he appeals.</p>

Heard before Hon. Thomas W. Wert. Yandy White was convicted of uttering a forged instrument, and he appeals. The motions and objections noted went to the formation of the grand jury returning the indictment, and fully appear in the cases cited.

<p>Assault With Intent to Murder.</p> <p>1. Assault with Intent; Evidence; Res Gestae. — Where the prosecution was for an assault with intent to murder, testimony that defendant, during or just after the difficulty, called to his wife to bring him a gun, that he had killed one man and was going to kill another, was admissible as a part of the res gestae, being part of and explanatory of the circumstances attending defendant’s pursuit of the assaulted party at the termination of the main difficulty in which the cutting took place.</p> <p>2. Same. — Such evidence was also admissible as tending to show defendant’s hostility towards the assaulted party.</p> <p>3. Appeal anad Error; Harmless Error; Evidence. — The admission of acts of defendant in seeking to get witnesses to testify in his favor were harmless, where his statements to them were not capable of being construed as an effort on his part to suppress the truth.</p> <p>4. Evidence; Declarations of Defendant. — The statements of a defendant during his efforts to procure witnesses, capable of being construed as an effort on his part to suppress the truth, were admissible to be considered in connection with any explanation he might offer of an innocent meaning or intention on his part.</p> <p>5. 'Appeal anad Error; Review; Record. — Acts 1915, p. 815, require certain proceedings in the lower court, such as the general and refused and given charges, to be made a part of the record proper, and such proceedings are not réviewable where they appear only in the bill of exceptions.</p> <p>6. Assault with Intent to Murder; Evidence. — While not every assault which would be murder if it resulted in death, is an assault with intent to murder, yet when such an assault is made upon a particular person, the inquiry may he properly confined to the question whether the crime would have been murder, if the assault had resulted fatally.</p> <p>7. Charge of Court; Construction. — The oral charge of the court must be considered in its entirety.</p> <p>8. Assault with Intent to Kill; Malice; Presumption. — Where a deadly weapon is used to take life, the law presumes malice from its use unless the evidence which shows the killing refutes that presumption.</p> <p>9. Same; Attempt. — A charge that no blow, cut or other action could amount to an assault with intent to murder unless defendant thought he had the means with which to take life, and was making an effort to use such means on the assaulted party, was misleading and calculated to impress the jury that defendant must have a specific or positive intent to take life before being guilty of the offense.</p> <p>10. Same. — If the means chosen be not adapted to the end, this furnishes a strong, though not conclusive, inference that there was no intent to kill; intention being a state of mind not susceptible of direct or positive proof.</p> <p>11. Same; Provocation. — A charge asserting that defendant could not be found guilty unless he was at fault in bringing on the difficulty with the person assaulted, ignores the duty to retreat and the proposition of imminent peril.</p> <p>12. Same; Fault. — A defendant may be at fault in bringing on the difficulty by provoking the other party to readily enter into the combat at the time with him by some act or word of his.</p> <p>13. New Trial; Criminal Case; Discretion. — Where it did not appear that any action of the trial court was invoked because of the applause of spectators before entering upon the trial, and where defendant did not move for a continuance upon that ground or ask any other ruling presenting anything more than the matter of the discretion of the court, the denial of his motion for a new trial cannot be said to be an abuse of discretion.</p> <p>14. Same; Newly Discovered Evidence. — Where the motion is based on newly discovered evidence, due diligence on the part of defendant is essential to favorable action on his motion for new trial.</p> <p>15. Same. — In considering the evidence alleged to have been discovered after the trial, and made the basis for a motion for new trial, the court properly considered it together with the evidence on the trial which was in the breast of the court for that purpose.</p>

<p>Violating Prohibition Law.</p> <p>1. Appeal and Error; Review; Finding by the Court. — Where the trial is had by the court -without the intervention of the jury, and the testimony is given ore tenus, the findings of the court on the facts will not be disturbed on appeal, unless plainly contrary to the weight of the evidence and this is true although the act creating the court provides that on appeal such judgment must be reviewed without any presumption in favor of the finding of the trial court.</p> <p>2. Intoxicating Liquors; Penalty; Statute. — Where a conviction is had for violating the provisions of Acts 1909, p. 8, the penalty therefor is prescribed by § 3 of that act, and authorizes the court, in addition to the fine assessed, to add imprisonment in the county jail, or confinement to hard labor for the county for not more than six months; § 35, Acts 1909, p. 95, applies only to offenses denounced by the act of which it is a part.</p> <p>3. Appeal and Error; Erroneous Sentence; Reversal. — Where the conviction is regular, but the sentence is erroneous, the conviction will not be reversed, but the sentence will be set aside and the cause remanded for proper sentence.</p> <p>(Ed. Note — This case was reviewed by the Supreme Court on application for certiorari, and the writ denied. See Mulligan v. The State, 198 Ala., 73 South. 1001.)</p>

Heard before Hon. Thomas W. Wert. Tobe Stout was convicted of violating the prohibition law and he appeals. The matters of evidence referred to in the opinion sufficiently appear.

Heard before Hon. James E. Horton, Jr. E. M. Brown brought habeas corpus to secure his release from custody after a conviction for crime. The writ was denied and petitioner remanded to custody, and he appeals.

<p>Burglary.</p> <p>1. Evidence; Accomplices; Corroboration. — Where there is doubt whether a witness is in fact an accomplice, and the testimony is susceptible of different inferences on that point, that question is for the jury and not for the court.</p> <p>2. Same. — Before the provisions of § 7897, Code 1907, can be invoked, the-jury must be reasonably convinced that a witness was an accomplice.</p> <p>3. Same. — When a witness is an accomplice, § 7897, Code 1907, merely requires other evidence in corroboration tending to connect defendant with, the commission of the offense, and it need not be of any specific fact.</p> <p>4. Same. — The burden of proving that a witness is an accomplice is upon, defendant who so alleges it for the purpose of invoking the rule requiring-corroboration.</p> <p>5. Same. — The sufficiency of the evidence tending to connect defendant, with the offense to corroborate his accomplice is for the jury.</p> <p>3. Same. — Where the father of defendant testified that defendant with, the witness and another boy, went in the direction of the burglarized premises on the night of the burglary, the 'question whether the witness, as an accomplice, was corroborated, was for the jury, although such evidence was-, slight.</p>

<p>Violating Prohibition Law.</p> <p>1. Intoxicating Liquors; Judgment; Offense. — Under § 29%, Acts 1909, p. 90, and § 7151, Code 1907, where the complaint charged the keeping of liquor for sale, and the judgment entry adjudged defendant guilty of selling, such judgment is void and not merely an erroneous sentence, and hence the conviction will be set aside and the cause reversed.</p> <p>2. Appeal .and Error; Review; Necessity of Bill. — Where there is no bill of exceptions, the rulings of the court on the motion of the state to strike a special plea of defendant is not reserved and cannot be considered.</p> <p>3. Intoxicating* Liquors; Statutes. — Although the sale of intoxicating liquors is authorized in a city in the county under Acts 1911, p. 96, and p. 249, yet the provisions of Acts 1909, pp. 8 and 63, remain in force in the territory of the county outside of such city, and the sale of liquor in such territory is forbidden.</p> <p>4. Same; Indictment. — A complaint for keeping intoxicating liquors for sale need not allege that the sale was not made in the city in the county in • which such sale was lawful under the Smith and Parks bills.</p>

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

<p>Appeal from Pike Law Court.</p> <p>Heard before Hon. T. L. Borum.</p> <p>John Flowers was convicted of violating the prohibition law and he appeals.</p>

<p>Murder.</p> <p>1. Criminal Law; Venue; Proof. — It is not necessary to prove venue by direct testimony, but it may be proven as other facts by circumstances from which the inference may be drawn by the jury.</p> <p>2. Same. — Under Rule 35, Circuit Court Practice, where it was not shown that the attention of the trial court was directed to the fact that the general charge was requested upon the ground of failure of proof of venue, the court will not be put in error for refusal of the general charge predicated on that ground.</p> <p>3. Charge of Court; Degree of Proof. — A charge that the evidence must be so convincing as to lead the minds of the jury to the conclusion that a defendant could not be guiltless before they can find him guilty, exacted a too high degree of proof of guilt.</p> <p>4. Same; Assuming Facts. — A charge that if the jury believe from the evidence that defendant was free from fault at the time he struck deceased, and that deceased was in the act of drawing a pistol in such manner as to produce in the mind of a reasonable man that it was necessary to strike to prevent the taking of life or great bodily harm to defendant, and that defendant believed such necessity existed, then defendant was to be found not guilty unless the jury believe beyond a reasonable doubt that defendant could have escaped or retreated at the time of the assault without increasing his danger, assumed facts, the truth of which the jury might not believe.</p> <p>5. Homicide; Self Defense; Burden of Proof. — The burden is on defendant under the plea of self defense, and unless the jury is satisfied from the evidence that the plea is sustained, then there is a failure of evidence.</p> <p>6. Trial; Undue Prominence. — The court is under no duty to give charges which instruct the jury that they may look to certain evidence or may consider certain facts.</p> <p>7. Same. — Charges that if, after considering all the evidence or any part of it, the jury believe there is a probability of defendant’s innocence, it was their duty to acquit, are properly refused because erroneous in stating in the alternative that the jury would be justified in acquitting defendant, based on a probability of his innocence on a consideration of a part only of the evidence.</p> <p>8. Same; Submitting Legal Question to the Jury. — A charge that if the jury have a reasonable doubt generated by all the evidence in the case as to whether defendant acted in seif defense, then they should acquit, was properly refused as submitting a question of law to the jury.</p> <p>9. Same; Covered by Those Given. — Although a charge states a correct proposition of law, the refusal to give it was not erroneous if it has been-substantially given in other charges.</p>

Circuit Court: Heard before Hon. S. L. Brewer. Eugene Chappell was convicted of manslaughter, and he appeals. Defendant was charged with having killed McCoy by cutting him with a knife, a stab wound in the lung from which he died about a month later. The doctor testified that the wound was fatal.

<p>Appeal from Lee Law and Equity Court.</p> <p>Heard before Hon. Lum Duke.</p> <p>Action by Clyde S. McLendon against the Western Union Telegraph Company, for damages for delay in delivering a message. Judgment for defendant and plaintiff appeals.</p>

<p>Appeal from Chilton Circuit Court.</p> <p>Heard before Hon. W. W. Pearson.</p> <p>J. M. DuBose was convicted of a misdemeanor and he appeals.</p>

<p>Appeal from Coosa Circuit Court.</p> <p>Heard before Hon. S. L. Brewer.</p> <p>Assumpsit by D. W. Baker against J. C. Pate. Judgment for plaintiff and defendant appeals.</p>

Heard before Hon. S. B. Browne. Action by the Mobile Light & Railroad Company against S. D. Copeland & Son, and the individuals composing the firm. From a judgment for defendants, plaintiffs appeal.

<p>Assumpsit.</p> <p>1. Appeal and Er-ror; Harmless Error; Pleading; Instruction. — Where the action was for rent and the parties tried the case on the theory that It was an issue whether the rent was reduced in lieu of plaintiff’s obligation to repair, and an instruction was given on that point, plaintiff could not complain that the issue was eliminated by the ruling of the court on demurrer, as any error in such ruling is cured by the charge.</p> <p>2. Evidence; Parol to Vary Writing; Circumstances. — Where the evidence tended to show that, contemporaneously with the execution and delivery of the lease, the landlord made an agreement to repair, the lease and the agreement being delivered at the same time, parol evidence was admissible to show the circumstances under which the contract was made, and the subject matter to which the parties referred, as the question of the merger of a prior agreement, and the one subsequently made between the same parties and covering the same subject matter was not presented.</p> <p>3. Same. — In cross examining plaintiff, it was permissible for the tenant to prove the execution of plaintiff’s agreement to repair made and delivered contemporaneously with the lease.</p> <p>4. Same. — A paper signed by the landlord, after proof of its execution, was properly admitted as evidence of his agreement to repair.</p> <p>5. Same; Conclusion.. — Where the action was for rent, and defendant set up a breach of agreement to repair, a question to a witness, “What caused its trouble?” (referring to the rusty condition of defendant’s cook stove) did not call for the conclusion of the witness.</p> <p>6. Landlord and Tenant; Damages; Breach of Agreement, to Repair.— Under evidence in this case it was a question for the jury as to what damages defendant had sustained, the action being for rent, to which defendant set up the breach of agreement to repair.</p> <p>7. Damages; Household Goods. — Where no market value is shown for second-hand goods, the actual value of such goods to the owner, excluding fanciful or sentimental value, furnishes the rule for the measure of damages.</p> <p>8. Charge of Court; Directing Verdict. — Where there was evidence tending to support plaintiff’s claim and other evidence tending to support defendant’s special pleas, there was no room for the affirmative charge.</p>

Heard before Hon. H. A. Pearce. John Mathis was convicted of murder in the second degree, and he appeals. Most of the facts sufficiently appear.

<p>Appeal from Mobile City Court.</p> <p>Heard before Hon. O. J. Semmes.</p> <p>Roscoe Woods was convicted of injuring the property of another by the operation of a motor vehicle and failing to stop and give his number, etc., and he appeals.</p> <p>The complaint charges that defendant, while operating a motor vehicle, and knowing that injury had been caused to an automobile, the property of G. L. Smith, by such vehicle while being so operated, due to the culpability of Roscoe Woods, or to accident,- left the place of said injury or accident without stopping and giving his name and residence and operator’s license number to the party whose property had been injured, or to some officer or some person in the vicinity thereof. Defendant filed the following plea:</p> <p>Defendant was tried in the recorder’s court of the city of Mobile on the charge of violating section 929 as amended of the ordinances of the city of Mobile, which said section is as follows : “Reckless or Negligent Operation of Motor Vehicles, of Reckless or Negligent Riding or Driving in the Streets, Penalty for. — Whoever shall, in the streets or- roads, within the police jurisdiction of the city of Mobile, operate a motor vehicle or ride or drive any beast of burden, bicycle or vehicle of any kind or character, recklessly or so as to endanger property, or the life or limb of any person, shall be -guilty of an offense, and for the first offense be punishable by fine not exceeding $25, as the recorder may impose, and for any subsequent offense, not exceeding $100.” The defendant further avers that on said April 5, 1915, he was put upon trial by said recorder’s court for said offense, and was duly convicted by said court of said offense charged, and this defendant alleges that the said offense of which he was convicted in the recorder’s court, and the offense with which he was charged in this court, are based upon the same transaction; wherefore, defendant says he should be discharged as to the present complaint.</p> <p>The following charges were refused to defendant:</p> <p>Charges 1 and 2 were the affirmative charges.</p> <p>(6) Unless you believe beyond a reasonable doubt that defendant knew that the said automobile of G. L. Smith had- been injured, you must acquit defendant.</p> <p>(7) Same as 6, except that it requires a belief by each and every one of the jury.</p>

<p>Perjury.</p> <p>1. Witnesses; Husband and Wife; Criminal Case. — Since the approval on Sept. 28, 1915, of Acts 1915, _p. 942, the husband and wife are competent witnesses to testify for or against one another in criminal cases.</p> <p>2. Judgment; Res Judicata; Criminal Law. — While the principles of res judicata apply to criminal as well as civil cases, a judgment in a civil case is not res judicata in a criminal case, or vice versa; there being no mutuality of parties, and a different degree of proof being required.</p> <p>3. Same; Former Jeopardy. — Civil res judicata finds its counterpart in criminal law in the constitutional safeguard of former jeopardy; in the case of jeopardy, there must be an identity of offenses both in law and in fact before the bar will operate, while in res judicata any fact that was adjudicated and determined upon its merits, and not merely collateral, and which was within the issues framed is forever foreclosed and barred in any future litigation involving that adjudicated fact between the same parties.</p> <p>3. Judgment; Collateral Attack; Conclusiveness. — Where the trial court had jurisdiction of defendant and the subject matter of the prosecution, its judgment is conclusive and not subject to collateral attack although obtained by fraud and perjury.</p> <p>5. Perjury; Res Judicata. — Where one was accused of crime, and testified as to the material matters therein litigated, and was acquitted, such judgment of acquittal was not res judicata of his alleged perjury in giving such testimony, but on the trial for perjury the inquiry whether he had sworn falsely was necessary and pivotal.</p> <p>6. Judgment; Res Judicata; Extrinsic Evidence. — Where it does not appear from the record whether certain material facts were presented and determined, evidence de hors the record may be adduced to prove the presentation and litigation of such facts, to sustain the plea of res judicata.</p> <p>(Ed. Note — This cause was reviewed on the main question by the Supreme Court on application for certiorari filed by defendant and the writ denied. See Jay v. State, 198 Ala., 73 South. 1000.)</p>

<p>Appeal from Geneva Circuit Court.</p> <p>Heard before Hon. H. A. Pearce.</p> <p>Jesse Palmer was convicted of manslaughter in the first degree and he appeals.</p>

<p>Appeal from Mobile Circuit Court.</p> <p>Heard before Hon. Samuel B. Browne.</p> <p>Assumpsit by the Gulfport Fertilizer Company against Burke</p> <p>Jones, Sr. Judgment for defendant and plaintiff appeals.</p>

<p>Appeal from DeKalb Circuit Court.</p> <p>Heard before Hon. W. W. Haralson.</p> <p>Wallace Scott was convicted of an assault with intent to murder, and he appeals.</p>

Heard before Hon. H. A. SHARPE. Assumpsit by the Birmingham Railway, Light & Power Company against the Steele-Smith Dry Goods Company to recover the difference between the amount paid it for electric lights, and the amount it claimed to be due for the months of April, May, June, July, and August, 1918. Judgment for plaintiff, and defendant appeals.

Heard before Hon. A. B. Foster. (This cause was reviewed by the Supreme Court on application for certiorari to the Court of Appeals, and writ denied. See Ex parte Walling, 198 Ala. 702, 73 South. 103.) William T. Walling was convicted of murder in the second degree, and he appeals. The facts sufficiently appear.

Heard before Hon. Samuel B. Browne. Action by the Gulfport Fertilizer Company against Burke Jones, Jr. Judgment for defendant, and plaintiff appeals.

Heard before Hon. J. J. Curtis. Assumpsit by the Southern States Company against T. L. Long, doing business as the Cash Grain Company. Judgment for defendant, and plaintiff appeals.

Heard before Hon. H. A. Sharpe. Action by C. R. Stowe against the Mutual Loan Society, Incorporated, in assumpsit. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Thomas W. Wert. (This cause was reviewed by the Supreme Court on certiorari, ' and the writ denied. See Ex parte Johnson, 198 Ala. 700, 73 South. 1000.) William Johnson was convicted of murder in the second degree, and he appeals. Defendant was charged with having killed Lewis Brown by shooting him with a gun.

<p>Appeal from Baldwin Circuit Court.</p> <p>Heard before Hon. A. E. GAMBLE.</p> <p>Millard Mayo, alias, was convicted of a capital felony under § 7699, Code 1907, and he appeals.</p>

Heard before Hon. Bernard Harwood. Kelley Tittle was convicted of manslaughter, and he appeals. The deceased was Gean Whitley, and the difficulty in which he met his death occurred at a country schoolhouse, where an entertainment was being held for the purpose of raising funds for the improvement of the schoolhouse and grounds, and the evidence is in sharp conflict as to who started the difficulty and who was engaged in it.

Heard before Hon. William E. Fort. Tom Harvey was convicted of manslaughter, and he appeals. The following argument of the solicitor was objected to; Gentlemen of the jury, you cannot always rely upon proof of good character in determining the guilt of defendant charged with a crime.

Heard before Hon. C. W.. Ferguson. Action by Charles Baladoni against the Alabama Fuel & Iron Company. From judgment for plaintiff, defendant appeals. The facts sufficiently appear.

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

<p>Violating Prohibition Law.</p> <p>1. Affidavit; Amendment. — Where the amendment to the affidavit allowed by the court did not appear in the record proper, but only by bill of exceptions, the action of the court in allowing the amendment will not be reviewed on appeal.</p> <p>2. Same. — It was not error to allow the amendment of an affidavit by adding the words '“alias” after defendant’s name where the amended affidavit was verified by the person who verified the original.</p> <p>3. Conspiracy; Acts and Declarations, — Where two or more persons enter into a conspiracy to commit or accomplish some unlawful act, any act done by any one of them in pursuance of the original conspiracy is the act of all in contemplation of law.</p> <p>4. Same; Parties Liable. — Where two or more persons conspire to commit an unlawful act, each is criminally responsible for the acts of his co-conspirator committed in the prosecution of the common design, and where an unknown person was prima facie guilty under the statute of having prohibited liquors in his possession for sale, etc., persons entering into such common design were guilty of the offense, whether an overt act is done by them or not.</p> <p>5. Intoxicating Liquors; Offense. — Where an unknown party with whom defendant was seen, had possession of liquor, which possession, under Acts 1915, p. 45, was prima facie evidence that he had it for sale or other unlawful purpose, under the evidence in this case, it was a question for the jury whether defendant was present, aiding or abetting such unlawful act.</p> <p>•6. Same. — The offense of keeping liquors for sale in violation of the prohibition law is a misdemeanor, and all concerned in its commission are principals.</p>

<p>Receiving Stolen Property.</p> <p>1. Receiving Stolen Goods; Evidence. — Where the prosecution was for receiving stolen goods, and defendant admitted that he was in the habit of having his goods cleaned at his brother’s place, the testimony of a witness that he there found other articles of clothing stolen at the same time, which he did not know he had lost, was admissible.</p> <p>2. Same; Value of Goods. — Where the only matter at issue was the value of the suit when stolen from the witness, it was proper to sustain an objection to the question propounded to such witness as to what the suit would be worth, if owned by one person, worn by another, and the witness wanted to buy it.</p> <p>3. Appeal and Error; Review; Reservation of Ground. — Where no objection was shown to have been interposed to the question eliciting the evidence, objections reserved to the action of the trial court in refusing to exclude such evidence are not reviewable.</p> <p>4. Receiving Stolen Goods; Evidence. — Where the prosecution was for receiving stolen clothes, the court properly permitted a witness to testify with regard to the conduct of an employee of defendant in going from defendant’s place of business and meeting a person whom the evidence indicated as having entered the house and stolen the suit, although no testimony was introduced showing a conspiracy between such person and the employee of defendant to commit the larceny, or that defendant employee was in any way connected with it.</p> <p>5. Burglary; Offense. — A defendant cannot be convicted of the burglary of a dwelling house unless it be shown that he broke into the house; or had entered into a conspiracy for that purpose.</p> <p>6. Receiving Stolen Goods; Evidence. — The testimony of a police officer of the city as to what he had advised as to defendant’s arrest was not admissible in the prosecution for receiving stolen goods.</p> <p>7. Witnesses; Examination and Cross. — Where a witness had already stated that he could not say what the market value of some of his stolen articles found in defendant’s possession was, and that he did not know very much about it, it was not an abuse of discretion to sustain objection to further questioning on that point.</p> <p>8.. Same; Defendant Before Grand Jury. — Where a defendant was examined before a grand jury as a witness against someone else charged with the commission of the crime, previous to the finding of the indictment against defendant, and his testimony was voluntarily given, any incriminating testimony given by him, or any admissions made by him could be used against him when charged himself with the offense.</p> <p>9. Words and Phrases; Accusation; Accused. — An accusation of crime is when a party is charged in due form of law before an officer or tribunal competent to try and award punishment for an offense; the term “accused” in law meaning to charge with an offense judicially, or by public process.</p> <p>• 10. Appeal and Error; Harmless Error; Evidence. — If of an undisputed fact, the admission of incompetent evidence is harmless.</p> <p>11. Same, — Where defendant himself testified as to the same fact, he cannot complain of the admission of improper evidence relative thereto.</p> <p>12. Evidence; Testimony Before Grand Jury. — Defendant’s evidence before the grand jury as to a collateral matter not in any sense a confession of guilt, is admissible without first showing that it was voluntarily made.</p> <p>13. Witnesses; Opinion. — Question to a witness “You are indicted about this, aren’t you?” and “Are you indicted for the same thing, under charge for this same offense?” are proper, since the matters inquired about were of the concrete fact about which the witness could answer if he knew.</p> <p>14. Appeal and Error; Review; Reservation of Ground. — In the absence of an exception taken to the remarks of the court, or of the solicitor, about an absent witness, nothing is presented for review as to such matters.</p> <p>15. Charge of Court; Weight of Evidence. — A charge asserting that the jury must give the same weight to the evidence of one person as it gives to that of another witness, was improper as a charge on the weight of the evidence.</p> <p>16. Same; Covered by Those Given. — Charges substantially covered by instructions given may be refused without error.</p> <p>17. Same; Singling Out Testimony. — Charges which single out particular phases of the testimony are bad.</p>

Heard before Hon. D. W. Speake. Action by the Holmes Furniture & Vehicle Company against W. P. Dillworth and another. Judgment for plaintiff against defendant Dillworth, and he appeals. The plaintiff sued W. P. Dillworth and D. C. Finney. Judgment for the plaintiff against W. P. Dillworth. who appeals.

<p>Original application in Court of Appeals.</p> <p>Motion by Clark Howell, as administrator of the estate of Lizzie G. Howell, to set aside and vacate the order and judgment of this court reversing and remanding the cause of Roll v. Howard and taxing appellee with the costs of the court.</p> <p>The grounds alleged are as follows: That the judgment from which the appeal in this cause was prosecuted was rendered on, to wit, May 20, 1912. That said appeal was taken and supersedeas bond approved July 2, 1912, during- the usual office hours of the clerk, to wit, 7 a. m. to 6 p. m. That on, to wit, July 2, 1912, the said appellee, Lizzie G. Howell, died in Atlanta, Ga., at the hour of 4 o’clock in the morning. That appellee was a nonresident of the state of Alabama the entire time from the com-, mencement of her said suit until her death. That the transcript of said cause was filed in the court on November 25, 1912, and was submitted on briefs on November 27, 1912, and said cause was reversed and remanded by this court on May 13, 1913, as appears from the minutes of this court: “It is also considered that the appellee pay the costs of appeal of this court and of the circuit court.” And movant shows, therefore, that the said judgment and order of this court is null and void for the reason this court was without jurisdiction of the parties to the suit, to wit, the personal representative of appellee, and the said movant prays an order of this court that he be allowed to intervene in said cause as the administrator in said cause of the estate of Lizzie.G. Howell, deceased, for the purpose of informing the court of the facts herein set out and of making this motion.</p>

Heard before Hon. W. G. McCorvey. Action by Lizzie Cook against Riley Kelly for the conversion of three bales of cotton. Judgment for plaintiff, and defendant appeals. After'defendant had closed its case, defendant having introduced and examined one McKinley, plaintiff, in rebuttal was asked this question by her attorney, relative to said McKinley: “Now, Mrs. Cook, has he ever done anything, in any way, to show that he had bad feelings towards, or felt good towards you ?

Heard before Hon. J. J. Curtis.- Action for slander by Mrs. Susan Roberson against Jeff Donaldson. From a judgment for plaintiff, defendant appeals. The amended counts were as follows: (1) Plaintiff claims of defendant * * * for falsely and maliciously charging the plaintiff with being immoral, by speaking of and concerning her in the presence of divers persons, in substance as follows: “Will Sisson is keeping Mrs. Roberson and having intercourse with her.

Heard before Hon. E. C. CROW. The Robertson Tire & Auto Company procured certiorari from the judge of probate to bring up to the circuit court the cause pending between it and R. E. Osborn. Osborn interposed a motion to dismiss the petition and writ of certiorari, which motion the court overruled, and Osborn appealed.

Heard before Hon. Bernard Harwood. Action by C. M. Gravlee and another against the Baskett Lumber & Manufacturing Company, for breach of a guaranty. Judgment for plaintiffs and defendant appeals.

Heard before Hon. E. C. Crow. L. A. Fealy was convicted of practicing medicine without a license, contrary to an ordinance of the city of Birmingham, and he appeals.

Heard before Hon. H. A. Pearce. Dave Culliver was convicted of manslaughter, and he appeals. On Rehearing. The following is the excerpt from the general charge: I charge you, gentlemen of the jury, that an assault on the part of deceased upon defendant would not justify or excuse defendant in the use of a deadly weapon in resisting or defending himself against such an assault on the part of deceased.

<p>Crime.</p> <p>1. Appeal and Error; Review; Charges. — Where the transcript contains no bill of exceptions, the appellate court is without information which will authorize it to review the written charges requested by defendant, and refused.</p> <p>2. Same; Presumption. — Where there is nothing in the record to show when a motion in arrest of judgment was made, or what disposition the court made of such motion, the presumption will be indulged that the court ruled correctly, since error must be affirmatively shown.</p> <p>3. Same; Record; Motion in Arrest. — A motion in arrest of judgment reaches only errors apparent on the face of the record, but the record should show some order or judgment on the motion in order to have it reviewed.</p> <p>4. Same; Review. — While Acts 1915, p. 598, automatically gives an appellant an exception to the court’s adverse ruling upon a written motion, it also requires the ruling to be made a part of the record.</p>

<p>Larceny.</p> <p>Charge of Court; Cured by Withdrawal. — While it was error for the court to instruct that there was no direct evidence that a certain person was connoted with the crime, such error was cured by the court retracting instructions, and adding that it was for the jury to determine whether there was evidence connecting such other person with the offense, and by its specific directions to them not to pay any attention to the prior remarks of the court.</p>

<p>Crime.</p> <p>1. Appeal and Error; Record; Arrest of Judgment. — While the filing in writing of the motion in arrest of judgment automatically gives appellant an exception to the court’s adverse ruling thereon, the ruling of the court should also be made to appear by the record proper.</p> <p>2. New Trial; Criminal Case; Review. — Where there is no bill of exceptions setting forth the substance of the evidence, the appellate courts are without data upon which to review a motion made by a defendant for new trial in a criminal case, as authorized by Acts 1915, p. 722.</p>

Heard before Hon. C. P. McIntyre. (This cause was reviewed by the Supreme Court on certiorari, and the writ denied. See Evans v. The State, 198.Ala. 704, 73 ' South. 999.) Taylor Evans was convicted of the larceny of two yearlings, and he appeals.

Heard before Hon. J. B. Evans. Proceeding by the State of Alabama, against Israel Roden. From an order discharging Roden the state appealed to the Court of Appeals, which certified the question of the constitutionality of Acts 1915, p. 436, to the Supreme Court.

Heard before Hon. A. H. Alston. Mack Thomas was convicted of assault with intent to murder, and he appeals. The bill of exception shows the absence of Nettie Longstreet, a witness for defendant, who had been served with subpoena to appear at the trial, and that defendant moved the court not to place him upon trial, and to cause an attachment to issue for said witness.

Heard before Hon. J. J. CURTIS. Tom Howard was convicted of violating the prohibition law, and he appeals. Omitting formal charging part, the affidavit is as follows: That within twelve months before the making of this affidavit Tom Howard sold, offered for sale, or kept for sale, or otherwise disposed of, spirituous, vinous, or malt liquors, contrary to law.

<p>Detinue.</p> <p>1. Husband and Wife; Ownership of Property. — The evidence examined and held to show the property sued for belonged to plaintiff, the wife, that she did not sign a mortgage covering the property given by her husband to defendant, and that defendant acquired no title thereto.</p> <p>2. Same; Evidence. — The mere fact that the husband used the wagon belonging to his wife would not impair her title,- or afford any inference that the husband owned it, and the possession will be referred to the title.</p> <p>3. Trial; Argument of Counsel. — Where the attorny in his argument to the jury said that defendant was' a reputable white man and that plaintiff was a negro woman, the argument was improper, and should have been excluded.</p>

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. Gaston Gunter..</p> <p>Minnie Golson was convicted of crime and she appeals.</p>

Heard before Hon. W. E. Rushing. Being under a charge of murder and committed to jail by virtue of a warrant issued by a justice of the peace, Jesse Mancill made application by habeas corpus for bail. From an order denying the writ he appeals.

<p>Murder.</p> <p>Appeal and Error; Review; Instructions. — In the absence of a bill of exceptions, a court cannot intelligently review charges given or refused, and hence will not review the refused charged, although they are set out in the record.</p>

Heard before Hon. A. E. Gamble. (This cause was reviewed by the Supreme Court on certiorari to the Court of Appeals, and the writ was denied. See Ex parte L. & N. R. R. Co. v. Dickson, et al., 74 South. 1005.) Action by R. S. Dickson and another against the Louisville & Nashville Railroad Company, for damages for the death of cer- tain doys. Judgment for plaintiffs, and defendant appeals.

Heard before Hon. H. A. Sharpe. Assumpsit by the Commercial State Bank against J. R. McDonough. Judgment for plaintiff, and defendant appeals. Affirmed. The second plea was the statute of limitation for three years filed to the complaint, which counted for money loaned and upon an account stated.

<p>Appeal from Monroe Law and Equity Court.</p> <p>Heard before Hon. W. G. McCorvey.</p> <p>Assumpsit by T. C. Baumhauer against J. I. McGill. Judgment for defendant and plaintiff appeals.</p>

<p>Appeal from Coosa Circuit Court.</p> <p>Heard before Hon. S. L. Brewer.</p> <p>Assumpsit by D. W. Baker against M. J. Wrenn. Judgment for plaintiff and defendant appeals.</p>

<p>Crime.</p> <p>Appeal and Error; Review; Instructions, — In the absence of a bill of exceptions and the oral charge of the court, the appellant court will not review charges refused to defendant, although they are set out in the record.</p>

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. John S. Miller.</p> <p>Action by Lookout Refining Company against the Miller Grain & Commission Company, incorporated. Judgment for plaintiff and defendant appeals.</p>

Heard before Hon. Thomas W. Coleman, Jr. Action by A. P. Black against the Provident Life & Accident Insurance Company of Chattanooga, Tenn., to recover upon an indemnity policy. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. H. P. Heflin.</p> <p>Ellis Hollis, alias, etc., was convicted of crime and he appeals.</p>

<p>Appeal from Blount Circuit Court.</p> <p>Heard before Hon. J. E. Blackwood.</p> <p>Assumpsit by the Oneonta Trust & Banking Company against L. Q. Box. Judgment for defendant and plaintiff appeals.</p>

<p>Appeal from Mobile City Court.</p> <p>Heard before Hon. O. J. SEMMES.</p> <p>Action by Joseph Espalla, Jr., against the County of Mobile, to recover per diem compensation for sitting at a special session. Demurrer was sustained to the complaint, and plaintiff appeals.</p>

Heard before Hon. Gaston Gunter. Action by J. H. Cook against the Standard Oil Company for damages for a collision. Judgment for defendant, and plaintiff appeals.

Heard before Hon. A. H. Alston. J. M. Frazier was convicted of violating the prohibition law; and he appeals.

<p>Appeal from Bessemer City Court.</p> <p>Heard before Hon. J. C. B. Gwin.</p> <p>Cleve Clements was convicted of violating the prohibition law and he appeals.</p>

<p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. Wm. E. Fort.</p> <p>Walter Waits was convicted of a crime and he appeals.</p>

<p>Appeal from Morgan Law and Equity Court.</p> <p>Heard before Hon. Thomas W. Wert.</p> <p>Jim Willis was convicted of burglary and grand larceny and he appeals.</p>

<p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. H. P. Heflin.</p> <p>George Burks was convicted of robbery and he appeals.</p>

<p>Crime.</p> <p>1. Appeal and Error; Review; Matters Presented. — In the absence of any ruling of the trial court on demurrers to the indictment, no judgment of the trial court thereon being shown, no question is presented for review.</p> <p>2. Same; Bill of Exceptions. — In the absence of the bill of exceptions the appellate court cannot review intelligibly charges requested by and refused to defendant.</p>

<p>Perjury.</p> <p>1. Evidence; Stenographer’s Transcript. — No constitutional right of defendant is violated by admitting in evidence the certified transcript of the official stenographer of the evidence given by defendant as a witness on a former trial.</p> <p>2. Same; Objection. — The certified transcript of the evidence given by defendant on a former trial, as made up and certified to by the official stenographer, being competent, an objection to the transcript as a whole was properly overruled.</p> <p>3. Appeal and Error; Harmless Error; Evidence. — Where defendant admitted having sworn on the former trial to the matters averred to be false in the count of the indictment upon which he was convicted, and sought to establish the truth of the admitted statements as a .defense to the charge of their falsity, any error in admitting the official stenographer’s certified transcript of the evidence given by defendant on a former trial, was harmless.</p> <p>4. Same. — Where the only issue was whether statements made on the former trial by defendant, and admitted by him to have been made, were true or false, rulings on the evidence not affecting this issue were not sufficiently prejudicial to the substantial rights of defendant to require a reversal.</p>

<p>Appeal from DeKalb Circuit Court.</p> <p>Heard before Hon. W. W. Haralson.</p> <p>Detinue by A. P. Hampton against W. H. Tant. Judgment for defendant and plaintiff appeals.</p> <p>Affirmed.</p>

<p>Setting Out Fire.</p> <p>1. Railroads; Setting Out Fire; Pleading. — Where the action was against a railroad for negligence in setting out fire, an allegation that said fire was communicated from said engine or locomotive to said property through the negligence of the defendant, its servants or agents, is sustained by showing negligence either in the construction, equipment or operation of the locomotive, or in not keeping the roadbed free from inflammable substances liable to be ignited by passing engines.</p> <p>2. Same; Evidence. — The evidence examined and held to afford an inference that the grass was ignited from sparks from the locomotive.</p> <p>3. Same; Pleading. — A complaint averring that the fire was communicated to the property destroyed by sparks “emitted” from the engine covers a case where sparks are thrown off or given out by the engine from the fire box, as the word “emit” carries, among others, the meaning to throw off or give out, discharge.</p>

Heard before Hon. JOHN H. DlSQUE. Action by C. P. Beard against the Nashville, Chattanooga & St. Louis Railway, for damages for overflowing land. Judgment for plaintiff and defendant appeals.

<p>Damage for Destroying Lien.</p> <p>1. Mortgages; Crops; Mortgagor’s Title to Land. — One in possession of land for ten years, cultivating it and paying taxes thereon, has such an interest in the land as authorized him to mortgage crops to be grown on the land by him in the future.</p> <p>2. Same; Destroying Lien. — Where the action was for destroying a lien on mortgaged cotton an inquiry as to who, at the time the mortgage was executed and delivered to plaintiff, held the legal title to the land on which the cotton was to be grown, was not material, and plaintiff’s objection thereto should have been sustained.</p> <p>3. Tenancy in Common; Contract; Crops. — Where a tenant of land had an agreement with his daughter that she should have a crop on the place, and under the agreement they worked through and through the entire crop, he furnishing the teams and doing the plowing, and the daughter, with his children, doing the hoeing and assisting in gathering the crop, such tenant and his daughter were tenants in common of the entire crop.</p> <p>4. Mortgages; Priority; Crop. — If, under the agreement between the tenant and the daughter, they were tenants in common, and if the daughter had knowledge or notice that the father had executed a prior chattel mortgage on crops to be raised by him when she entered into the agreement, her rights were subordinate to the lien of the chattel mortgage.</p> <p>5. Same; Recording. — The recording of a chattel mortgage in the county of the mortgagor’s residence, operates as notice to all persons of its contents, and of the lien or title of the mortgagee thereunder.</p>

<p>Appeal from Cherokee Circuit Court.</p> <p>Heard before Hon. W. W. Haralson.</p> <p>Action by J. B. Wilder against S. C. Tatum for breach of warranty. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Jefferson Criminal Court.</p> <p>Heard before Hon. A. H. Alston.</p> <p>Amos Smith was convicted of train wrecking and he appeals.</p>

<p>Murder.</p> <p>1. Appeal and Error; Review; Motion to Quash. — It being within the discretion of the trial court whether it will put a defendant to his demurrer or plea in abatement to an indictment, any error in overruling a motion to quash is not reviewable, unless an abuse of discretion is shown.</p> <p>2. Same; Bill of Exceptions; Necessity. — The court cannot review charges requested by and refused to a defendant in a criminal case in the absence of a bill of exceptions,, and where the court’s oral charge is not set out.</p>

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

Original petition in Court of Appeals. W. J. Mooneyham was convicted of petit larceny and petitions this court for a writ of error to review the finding of the trial court. The affidavit as originally filed is as follows: Personally appeared R. S. D. Robertson, who, being duly sworn, deposes, and says that on February 12, 1916, in said county, the offense of petty larceny was in the opinion of complainant committed, and W. J. Mooneyham was guilty thereof.

<p>Violating Prohibition Law.</p> <p>1. Intoxicating Liquors; Indictment. — An indictment charging that defendant sold, offered for sale, kept for sale, or otherwise disposed of prohibited liquors, is sufficiently broad to charge the- offense denounced by § 33, Acts 1915, p. 34.</p> <p>2. Charge of Court; Directing Verdict. — Where the undisputed and direct evidence, as well as defendant’s own admission, shows that he is guilty of the offense charged, the court will not be put in error for giving the general charge with proper hypothesis as requested by the state.</p> <p>3. Criminal Law; Election; Necessity. — Where the indictment charged that defendant sold, offered for sale, kept for sale, or otherwise disposed of prohibited liquors, but the evidence showed only one transaction and one offense, there was no occasion for an election.</p>

Heard before Hon. H. P. Heflin. (This cause was reviewed by the Supreme Court on certiorari to the Court of Appeals, and the writ was denied. See Ex parte Trent, 198 Ala. 701, 73 South. 1002. Mrs. A. C. Trent was convicted of administering drugs or using instruments for the producing of an abortion, and she appeals.

Heard before Hon. H. A. Pearce. Assumpsit by the Southern Cotton Oil Company against N. T. Eldridge and another. From a judgment for plaintiff, defendant Peterman appeals.

. Heard before Hon. A. E. Ga'mble. Assumpsit by T. W. Shows against James Thomas. Judgment for plaintiff, and defendant appeals. It appears that one Thomas Thomas was the owner of a team consisting of a mule and horse, and was farming upon James Thomas’ place, and that he swapped this team to Shows for two mules, and a difference of $190, to be paid to Shows.

Heard before Hon. W. W. Haralson. Detinue by the Bank of Albertville against J. E. Smalley. Judgment for plaintiff, and defendant appeals. The amendment sufficiently appears. The complaint was further amended by adding the counts in assumpsit. The pleas were payment, and the suggestion that the detinue suit was founded upon the mortgage, with the request that the amount due thereon be ascertained.

<p>Appeal, from Colbert Circuit Court.</p> <p>Heard before Hon. C. P. Almon.</p> <p>John Rikard, alias John Rickard, was convicted of murder in the second degree, and appeals.</p> <p>J. B. Casey, who lived on a mountain chain, about ten miles; west of Tuscumbia in a sparsely settled, wooden region, was; found dead, and his body partly decomposed, in a shallow grave,, about a quarter of a mile from his home. He lived alone, had but few neighbors, and owned five head of cattle, which were sheltered in one of the rooms of his house; Casey living in the other. Defendant was engaged in the cross-tie business, and was constantly in the woods with his gun taking up cross-ties, and otherwise attending to his cross-tie business. Between the time of Casey’s disappearance and the finding of his body, defendant was seen on the road driving Casey’s five head of cattle and claiming that he had bought them of Casey, paying him $100 therefor. The exceptions to the evidence sufficiently appear.</p> <p>Dr. W. H. Green testified that he was a practicing physician, had practiced medicine for 16 years, and, on being questioned as to the cause of the death, he was asked with reference to the skull: “In your judgment, which way did the shot enter?” And witness answered:</p> <p>“It entered from the outside, because the hole is there on the outside on the skull. In the natural course, a shot penetrating the skulL at the point where the hole is would have entered the brain. From the force it seemed to have had, I think it would have knocked it off and produced death. The bone you exhibited to me is a lower part of the human jawbone.”</p> <p>The testimony of Malone was that he met Rikard on October 25, 1914, coming from up to Jackson Creek, a mile and a half from where Casey lived. Rikard was going away, not toward, Casey’s place, riding a mule, and then detailed the conversation he had with him. Practically the same testimony was given by Sexton.</p> <p>Assignments of error referred to are as follows:</p> <p>(7) The court erred in overruling the motion of defendant to exclude the answer of the witness Hester: “I do not remember the day of the month. I remember the day they said it was.”</p> <p>(8) The court erred in overruling a motion to exclude the statement of the witness Inman: “This is how come him to make the deal.” This in connection with the testimony that Rikard had told him that Casey had gotten into a little trouble, and he 'had gotten into a deal with him, as Casey had hacked some ties across the line, and he was going away.</p> <p>Alex Gibbs testified that he went over to Barton to Rikard’s barn on October 28th, and offered Rikard $125 for some cattle that were in the barn, but he said he would not take it.</p>

Heard before Hon. Thomas W. Wert. (This case was reviewed by the Supreme Court on certiorari to the Court of Appeals, and the writ denied. See Ex parteBridgeforth v. The -State, 198 Ala., 74 South. 1005.) Robert Bridgeforth, Junior, was convicted of violating the prohibition law and he appeals.

Heard before Hon. John C. Pugh. (This case was reviewed by the Supreme Court on certiorari to the Court of Appeals, and the writ denied. See Ex parte Davenport, 198 Ala., 74 South. 1005.) Action by Hattie Davenport against the J. T. Camp Transfer Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. W. W. HARALSON. Action by W. E. Snead against J. R. Groover and another. Judgment for defendants, and plaintiff appeals. The facts sufficiently appear.

Heard before Hon. John H. Miller. Action by J. L. Walsh against the Greenwood Cafe. From a judgment for plaintiff, defendant appeals. Charge B refused to defendant was as follows: If, upon consideration of the whole evidence, the jury is reasonably satisfied from the evidence that plaintiff entered willingly into a fight with defendant, then, in that event, plaintiff cannot recover.

Heard before Hon. S. L. Brewer. Tommy Brooks was convicted of manslaughter, and he appeals. The facts sufficiently appear.

<p>Appeal from Winston County Court.</p> <p>Heard before Hon. John S. Cuetis.</p> <p>Susie Doublin was convicted of violating the prohibition laws, and she appeals.</p>

Heard before Hon. M. Sollie. Action by the Bank of Fort Gaines against the Covey Cotton Oil Company for conversion. Judgment for plaintiff and defendant appeals. (This cause was reviewed by the Supreme Court on certiorari to the Court of Appeals and the writ denied. See Covey Cot. O. Co. v. Bank of Ft. Gaines, 75 South. 1003.)

Heard before Hon. B. M. Miller. Action by N. M. Morrison against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. W. W. Pearson. Action by J. O. Royal against the Western Union Telegraph Company for damages for delay in the delivery of a telegram. Judgment for the plaintiff, and defendant appeals. A telegram dated at Sprague, Ala., and addressed to A. B. Perdue at Hartford, Ala., “Will leave here in the morning for Hartford,” was not delivered in a reasonable time.

Heard before Hon. W. W. Haralson. Detinue by Z. D. Rogers and wife against Joe Whittle for the recovery of certain personal property, restaurant fixtures. Judgment for- defendant, and plaintiffs appeal. The testimony of Rogers was that he rented the fixtures to Whittle at a rate of $3 per month for the first month, and that Whittle was to pay $5 the succeeding months.

<p>Assumpsit.</p> <p>1. Appeal and Error; Waiver. — If the cause is submitted without objection the irregularity of not issuing summons to defendant who does not appeal, the judgment being against two defendants, is waived. (Code, § 2884, as amended, Acts 1911, p. 589.)</p> <p>2. Husband and Wife; Actions Against; Jury Question.' — Where the action is upon a note against a husband and a wife and the defense was that the wife signed as surety for her husband under § 4497, Code 1907, and the evidence was in conflict as to whether the debt was that of the husband or of defendant wife, the question was one for the jury.</p> <p>3. Husband and Wife; Agency of Husband; Ratification. — If the wife ratifies a purchase of goods by her husband as her agent by giving a note, the wife is liable on the note, whether the husband was originally authorized to act for her or not.</p> <p>4. Charge of Court; Specific. — The giving of an instruction for plaintiff omitting to hypothesize knowledge of the facts as essential to a ratification could have been corrected by a proper explanatory charge which it was the duty of defendant to have requested.</p>

Heard before Hon. C. P. Almon. George Minor was convicted of manslaughter, and he appeals.

<p>Appeal from Lowndes Circuit Court.</p> <p>Heard before Hon. A. E. Gamble.</p> <p>Charlie Norris was convicted of crime and he appeals.</p>

<p>Violating Prohibition Law.</p> <p>1. Criminal Law; Charge of Court; Evidence. — Construing §§ 5362, and 5364, Code 1907, it is held that an oral, general affirmative charge given on behalf of the state on oral request was a charge on the effect of the evidence and erroneous.</p> <p>2. Trial; Province of Court and Jury. — Where the evidence of defendant and another witness for defendant made a material conflict in the evidence, the general affirmative charge could not be given, as it is for the jury to determine the weight of the evidence.</p>

<p>Receiving Stolen Goods.</p> <p>1. Receiving Stolen Goods; Evidence. — In order to sustain a prosecution for receiving stolen goods, state must show beyond a reasonable doubt that the property in question had been feloniously taken and carried away, and that defendant did buy, receive, conceal or aid in concealing the identical property, knowing that it had been stolen.</p> <p>2. Same. — The evidence examined and held insufficient to sustain a conviction for receiving stolen goods.</p> <p>3. Same. — Where there was no evidence of the corpus delicti in a prosecution for receiving stolen goods, defendant should have been given the affirmative charge as requested.</p>

Heard before Hon. Thomas H. Smith. Petition by W. F. McMillan and others for habeas corpus to procure a discharge from Company M, First Regiment, Alabama National Guard. From a decree of the Chancellor dismissing the .petition, petitioners appeal.

<p>Appeal from Geneva County Court.</p> <p>Heard before Hon. A. A. Campbell.</p> <p>Assumpsit by Dr. Williamson & Young, a partnership, against A. B. Black. Default judgment for plaintiff and defendant appeals.</p>

Heard before Hon. Ben D. Turner. Matthew Autrey was convicted of larceny, and appeals. The evidence tended to show that Matthew Autrey, Frank Smith, and others were engaged in a game of “skin,” and that Matthew Autrey became broke, and, drawing his pistol, pointed it at Smith’s head and forced him to lay down on the bench near by $4 in silver, which defendant took and carried away.

<p>Assault with Intent to Murder.</p> <p>1. Assault with Intent to Murder; Evidence. — Where the prosecution was for an assault with intent to murder, it was not error to sustain objection to questions to the party assaulted, as to what certain witnesses had sworn upon another trial in a case before a justice of the peace, which had no connection with the prosecution; the rule being that facts and circumstances, which, when proven, are incapable of affording any reasonable presumption or inference in regard to the material facts, are not admissible in evidence.</p> <p>2. Same; Jury Question. — Where it appeared that when the difficulty started, defendant was in a buggy on a public road several miles distant from his home, a charge on self defense explaining the duty of retreating is proper, and applicable to the evidence.</p> <p>S. Charge of Court; Manner of Presenting. — The court having read to the jury all of the written charges asked by defendant, it was not improper as a qualification of the written charges for the court to state that they were not to be taken to explain, vary or contradict the general charge, but to be taken in connection therewith.</p>

<p>Appeal from Cleburne Circuit Court.</p> <p>Heard before Hon. Hugh D. Merrill.</p> <p>Charlie Green was convicted of burglary and he appeals.</p>

<p>Violating Prohibition Law.</p> <p>, Charge of Court; Argumentative. — A charge asserting that it is a principle of law that justice should he tempered with mercy, is not only argumentative, but asserts no proposition of law.</p>

<p>Murder.</p> <p>1. New Trial; Criminal Law; Review. — Before the passage of Acts 1915, p. 722, the granting or refusing of a motion for new trial in a criminal case was a matter resting in the discretion of the trial court.</p> <p>2. Evidence; Conclusion. — A question to a witness as to whether the conduct of a certain person was objectionable, was improper as seeking to elicit the witness’s conclusion as to what constituted objectionable conduct; nor was it admissible under the rule allowing a witness to testify to a collective fact.</p> <p>3. Charge of Court; Directing Verdict. — Where the evidence is in conflict as to material facts, the court cannot properly direct a verdict.</p> <p>4. Same; Reasonable Doubt. — A charge asserting that if one fact inconsistent with the guilt of the accused has been proven to the reasonable satisfaction of the jury they could not convict, is properly refused.</p> <p>5. Same; Covered by Those Given. — It is not error to refuse charges substantially covered by the oral charges of the court, or by written instruc- • tions given.</p>

Heard before Hon. Ben D. Turner. Daniel F. Britton was convicted of the larceny of a steer, and he appeals.

<p>Appeal from DeKalb Circuit Court.</p> <p>Heard before Hon. W. W. Haralson.</p> <p>William S. Gilbreath was convicted of arson and he appeals.</p>

Heard before Hon. A. H. Alston. Will Doby was convicted of highway robbery, and he appeals. The facts sufficiently appear. The following portions of the oral charge noted in the opinion are as follows: E. Now, gentlemen, the question that is in this case, the pivotal point in it, I might say, is the identity of this man by Mr. Taylor, as being one of the two who robbed him upon the night that he said he was robbed.

<p>Appeal from Colbert Circuit Court.</p> <p>Heard before Hon. C. P. Almon.</p> <p>E. D. Abernathy was convicted of violating the prohibition law, and he appeals.</p>

Heard before Hon. Hugh D. Merrill. Steve Garrison was convicted of decoying from the custody of the father his three minor girls, and he appeals.

<p>Appeal from Elmore County Court.</p> <p>Heard before Hon. Gaston Gunter.</p> <p>Coy Waddell was convicted of assault with intent to murder and he appeals.</p>

Heard before Hon. J. N. Stanford. Isaac S. Ward, alias, was convicted of violating the quarantine laws of the State Live Stock Sanitary Board, and he appeals.

Heard before Hon. A. H. Alston. Cap Stramler was convicted of conducting an unlawful drinking place, and he appeals. While the case was in preparation for trial and before any witnesses had been examined, the court of its own motion asked the jury this question: “Are you, or any of you, opposed to a conviction for selling liquor? If so, stand up.” The other facts sufficiently appear.

<p>Appeal from Limestone Circuit Court.</p> <p>Heard before Hon. W. W. HARALSON.</p> <p>Joe Norwood was convicted of an offense and he appeals.</p>

<p>Embezzlement.</p> <p>1. Indictment and Information; Demurrer; Questions Raised. — Under the indictment in this case the question whether defendant was a notary public or' a notary public and ex officio justice of the peace, was one of proof, and could not be raised by demurrer to the indictment.</p> <p>2. Embezzlement; Justice of the Peace; Statute. — The provisions of § 7488, are not a bar to a prosecution for embezzlement under § 6838, Code 1907, as the former statute merely penalizes for neglect, oversight, ignorance, etc., while the latter penalizes corruption and dishonesty.</p> <p>8. Same. — Under § 6838, Code 1907, before a justice of the peace can be convicted of embezzlement, it must be alleged and proven that he was such officer, that he received money in his official capacity, that he knowingly converted it, and that the conversion was unlawful.</p> <p>4. Evidence; Judicial Knowledge; Officers. — The court takes judicial notice of the fact that a certain person was a notary public and ex officio justice of the peace. •</p> <p>5. Justices of the Peace; Compensation; Statute. — While § 7488, Code 1907, does not expressly authorize justices of the peace to apply fines collected by them to the payment of fees in cases in which the state fails to convict, this has been the practice since 1875, thus implying approval of this interpretation, and it will be adopted and the statute so construed.</p> <p>6. Embezzlement; Justice of the Peace; Evidence. — Where a justice of the peace was prosecuted for embezzling fines collected, by him, he could show that fees were due him in cases where the state had failed 'to convict equal to the amount of fines appropriated by him, and that he had so applied the money.</p> <p>7. Same. — While a strong circumstance upon the question of his guilt that the justice did not make settlement as required by law, yet it was a matter for the jury to determine.</p>

Heard before Hon. Gaston Gunter. Arthur Davis was convicted in the Recorder’s Court of a violation of the prohibition laws,, and on appeal to the city court of Montgomery he was discharged, and the city appeals.

Heard before Hon. Wm. E. Fort. Mary Hall, alias, etc., was indicted for the killing of Dalia Turner, convicted of manslaughter, and she appeals.

<p>Carnal Knowledge.</p> <p>1. Appeal and Error; Review; Transmitting Original Papers. — The trial court may transmit to the reviewing court an original indictment for inspection by the reviewing court, under Rule 24, Supreme Court Practice.</p> <p>2. Indictment and Information; Sufficiency.. — An indictment is not rendered defective because of the misspelling of a word; hence, an indictment charging that one “cornally” 'knew another contrary to the order of nature is not faulty.</p> <p>3. Charge of Court; Reasonable Doubt. — Where the preceding portion of the charge sets out the fact that a reasonable doubt was not a whimsical, possible or speculative doubt, it was not error to further instruct that a reasonable doubt is one based upon a reasonable foundation.</p>

<p>Appeal from Wilcox Circuit Court.</p> <p>Heard before Hon. B. M. Miller.</p> <p>Lee Ward was convicted of murder and he-appeals.</p>

Heard before Hon. J. S. Curtis. Marshall Lovelady was convicted of carrying concealed about his person a pair of brass or metal knucks, and he appeals. Affirmed.

Heard before Hon. H: A. Pearce. Joe Jernigan sued D. C. Cox in detinue for the recovery of two- mules. Judgment for plaintiff and defendant appeals.

Clair Circuit Court. Heard before Hon. J. E. Blackwood. Frank Woods was convicted of aiding or abetting the violation of the prohibition law and he appeals.

<p>Appeal from Marshall Circuit Court.</p> <p>Heard before Hon. W. W. Haralson.</p> <p>Action by Maggie Hayes against J. Berry Hayes and others, for damages for assault and battery. Judgment for plaintiff and defendant appeals.</p>

Heard before Hon. M. Sollie. Detinue by Delphie Warren against W. M. Mitchell for a bale of cotton and certain cotton seed. Defendant Mitchell interposed a sworn affidavit denying any claim to the property, and setting up that it was owned and claimed by the Consolidated Mercantile Company. During the progress of the cause Mrs. Delphie Warren died, and the cause was revived in the name of R. L. Warren as administrator. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Lauderdale Circuit Court.</p> <p>Heard before Hon. C. P. Almon.</p> <p>Charlie Hawkins was convicted of the larceny of a cow and he appeals.-</p> <p>The contention of the appellant is that the indictment read “Jim Yank,” instead of “Jim Tank,” in laying the possession of the property to be that of Jim Tank. The defense was that defendant had won the cow from another party in a gambling game, and did not steal the cow from the prosecuting witness.</p>

Heard before Hon. H. A. Pearce. Will C. Consford and Gertrude Consford were prosecuted for murder. Gertrude Consford was acquitted, and Will C. Consford was convicted and appeals.

Heard before Hon. H. P. Heflin. C. Evans Quinn was convicted of violating the prohibition law, and he appeals. The facts sufficiently appear. The following charges were refused to defendant: •(1) Under the law and evidence in this case if you believe it, you will acquit. . (2) I charge you that you must believe beyond a reasonable doubt, all of the evidence in this case before you can convict the defendant.

<p>Assumpsit.</p> <p>1. Appeal and Error; Perfecting; Time. — The court is without jurisdiction other than to dismiss an appeal taken 11 months and 29 days after the date of the judgment, since § 2868, Code 1907, and Acts 1915, p. 711, require that an appeal he taken within six months.</p> <p>2. Same. — Construing § 2868, Code 1907, Acts 1909, p. 165, and Acts 1915, p. 711, which became effective Sept. 22, 1915, it is held that an appeal from a judgment which was rendered Sept. 21, 1915, which was not taken until Sept. 20, 1916, was not taken in time, and must be dismissed, Acts 1915, p. 711, having no saving clause.</p>

Heard before Hon. C. B. Smith. R. Leonard Bryant petitions for habeas corpus to be discharged because of the irregularity of the judgment of conviction and sentence. The court sustained demurrers to the petition and denied the writ, and petitioner appeals.

Heard before Hon. James A. Bilbro. Arthur Cunningham was convicted of violating the prohibition law, and he appeals. The facts sufficiently appear. Charge 5 is as follows: If you find from this evidence that defendant received the whisky prior to January 27, 1915, you will find defendant not guilty.

Heard before Hon. THOMAS W. WERT. Action by the A. Z. Bailey Grocery Company begun against the Commercial Savings Bank & Trust Company, with affidavit on the part of defendant and payment of money into court, showing that the money was claimed by the H. C. Schrader Company, and the Heard National Bank of Jacksonville. Judgment for plaintiff as against the substituted defendants, and one of them appeals.

<p>Appeal from Monroe Law and Equity Court.</p> <p>Heard before Hon. W. G. McCorvey.</p> <p>Andrew Floyd was convicted of a failure to work the public roads, and he appeals.</p>

<p>Criminal Libel.</p> <p>1. Libel and Slander; Indictment; Unchaste. — The indictment in this case stated, and held to sufficiently charge the offense denounced by Sec. 7340, Code 1907.</p> <p>2. Same; Variance. — The averment that the language was uttered in the presence of three named persons was descriptive of the crime, and the proof of the utterances in the presence of two of these persons on divers occasions was inadmissible as a variance, and did not sustain the charge as laid.</p> <p>3. Constitutional Law; Indictment; Accusation. — Constitutional right of a defendant to demand the nature and cause of his accusation is not a technical right, but is essential to the guaranty that no person shall be deprived of his liberty except by due process, or be twice put in jeopardy for the same offense.</p> <p>4. Libel and Slander; Evidence. — The fact that defendant and his wife, previous to the trial were heard fussing over the woman named, was not admissible as it had no tendency to show that defendant uttered the defamatory word.</p> <p>5. Same; Malice. — Malice is not an ingredient of the offense denounced-by Sec. 7340, Code 1907, and the intent or animus of defendant in uttering the words was immaterial.</p> <p>6. Same; Other Offenses. — Where the prosecution was for defaming a woman at a fixed time, evidence that defendant had been guilty of other defamations uttered at different times is inadmissible, under the general rule that evidence of another offense than that for which defendant is being tried is not admissible; nor does it fall within the discretion allowing such evidence where the two crimes are so intermingled as to constitute one transaction, or where the question of intent or animus is. involved, or where there is a conflict in the evidence as to whether defendant or some one else committed the crime, or whether the crime was committed by some peculiar, extraordinary or novel means.</p> <p>7. Same. — Evidence of other distinctly defamatory utterance is not admissible in aggravation of the fine in a prosecution under Sec. 7340.</p>

Heard before Hon. W. W. Pearson. One Conner was convicted of. crime, and he appeals. The Judgment was affirmed on certificate and on motion of appellant, the certificate was recalled and the case resubmitted on briefs. Cause stricken from the docket and certificate of affirmance issue. See Conner v. State, 14 Ala. App. 675, 70 South. 1015.

<p>Appeal from Barbour Circuit Court.</p> <p>Heard before Hon. J. S. Williams.</p> <p>Jesse McCullough was convicted of selling mortgaged property, and he appeals.</p> <p>The evidence tended to show that defendant was indebted to one W. T. Middlebrooks, and in order to secure said indebtedness mortgaged to Middlebrooks two cows and a calf, together with other property, that when he left Middlebrooks’ place he turned over all the property except one cow to one Hartsogg, who was agent for Middlebrooks, and that he told Middlebrooks the other cow had been sold to Mr. Stephens at Clio, Stephens testifying that be bought the cow from defendant’s wife, and not defendant. Stephens further testified that defendant owed him an account, and that he went to defendant about it, and saw some cows in the pasture, and asked defendant about selling him one, and he told him that he could not sell him the cow as they belonged to his wife, but that, if his wife would sell him the cow, it would be all right.</p>

Heard before Hon. W. W. Haralson. Milton Smith was convicted of manslaughter, and he appeals. The defendant and Delbert Sisk were shooting craps in an outhouse used as a cotton bin, and a dispute arose as to whether defendant had won his point, and an altercation ensued in which Smith shot and killed Sisk with a pistol.

<p>Murder.</p> <p>1. Homicide; Evidence; Motive.- — -Where there was no evidence showing that the motive for killing was to prevent the attentions of deceased to “the McClanahan woman,” the evidence relative thereto was not admissible.</p> <p>2. Evidence; Character; Personal Knowledge. — The mere opinion of witnesses as to the character of defendant for peace and quiet, based upon their personal knowledge, is not admissible for any purpose, it not being evidence of defendant’s general character.</p> <p>3. Same. — Where witnesses testified on direct examination as to their personal knowledge of defendant’s character, this could not be made a predicate for showing on cross examination defendant’s reputation for lewdness, as this specific trait is not admissible to impeach character for truth and veracity.</p> <p>4. Same. — In order to impeach defendant’s testimony, the impeaching evidence must relate to his general reputation or character in the community, or general reputation for truth and veracity, and it is not permissible to inquire as to any specific trait.</p> <p>.5. Homicide; Self Defense; Retreat. — Where both defendant and the deceased were rightfully at a public ferry, this did not relieve defendant of the duty of retreating in order to avoid a difficulty before taking the life of deceased.</p> <p>6. Same; Freedom from Fault. — The question as to whether defendant was free from fault in bringing about the difficulty was a question for the jury.</p> <p>7. Same; Provoking Combat. — The-mere fact that defendant armed himself after deceased arrived and began to abuse him, might have had a tendency to provoke deadly combat, in which case the doctrine of self defense could not apply.</p>

Heard before Hon. W. W. Haralson. Wesley Samples was convicted of bastardy, and he appeals. Referring to the fact that the witness Wilson was present at the preliminary trial as a witness, and was not examined, the solicitor said: “They knew these facts then, as they know them now. Why didn’t they dispose of the case down there without bringing it to the courthouse.

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. Gaston Gunter.</p> <p>Ned Matthews and Will Matthews were convicted of larceny, and they appeal.</p>

<p>Appeal from Houston Circuit Court.</p> <p>Heard before Hon. H. A. Pearce.</p> <p>Action by T. R. Jones against W. F. Martin on a promissory note. Judgment for defendant, and plaintiff appeals.</p> <p>The note sued on was executed by Martin to one Hendricks, and by Hendricks assigned to Jones. Defendant filed five pleas: First, the general issue; second, that the consideration for the note sued on was for the purchase of stock of a foreign corporation, and that said corporation by its agent came into Alabama and sold the stock to Martin, for which the note was executed as the purchase price, and that this constituted the doing of business in the state of Alabama, and that the foreign corporation did not have a known place of business, and a designated agent in this state. The third plea set up the same facts as established, and alleged that at the time of the sale said corporation did not have a permit to do business in the state of Alabama. The fourth plea set up that the execution of the note was obtained by false pretense and false representation. The fifth plea was for want of consideration.</p>

<p>Assumpsit.</p> <p>1. Lotteries; Punch Board. — One who sells a punch board consisting of a board with holes in which blank slips and slips calling for prizes are inserted, the price for punching a hole being ten cents, and the purchaser receiving either nothing or a fixed prize, is concerned in setting up a lottery within § 6997, Code 1907.</p> <p>2. Same; Contract. — The contract for the sale of such a device although made in another state, but prepared by plaintiff and sold to be operated in this state under written directions furnished by plaintiff, is violative of public policy and unenforceable.</p> <p>3. Same. — In such a contract for the sale of such a device where the sale was completed in Chicago, it is not necessary that the seller should have beep personally present and actually assisting in operating the board in Alabama, to render the contract unenforceable as against public policy.</p>

<p>Shooting Into Dwelling.</p> <p>1. Indictment; Shooting Into Dwelling House.. — An indictment under § 6897, Code 1907, should allege that the shooting was unlawful, and failing to do so is fatally defective.</p> <p>2. Same; Ownership; Negativing; — An indictment drawn under § 6897, Code 1907, should negative the ownership of defendant of the house fired upon under the provisions of § 7147, Code 1907.</p> <p>3. Evidence; Admissibility. — The testimony of an officer that he had a warrant for, and had searched for a witness of defendant was not admissible, since it was irrelevant and calculated to discredit the witness.</p> <p>4. Weapons; Shooting into Dwelling. — The provisions of § 6897, Code 1907, may be violated by two or more persons conspiring together.</p> <p>5. Conspiracy; Evidence. — A conspiracy need not be established by positive testimony, nor need a prearrangement to do a specific wrong be shown.</p> <p>6. Same; Charge of Court; Modification. — A special requested charge which needs qualification, modification or restriction, should be refused.</p> <p>7. Same. — Where a court gives a charge as requested, it is an error to qualify or modify it.</p>

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

<p>Appeal from Winston Circuit Court.</p> <p>Heard before Hon. J. J. Curtis.</p>

<p>Appeal from Coosa Chancery Court.</p> <p>Heard before Hon. W. W. Wi-iiteside.</p>