Volume 18 — Alabama Appellate Reports

Kyle, Judge. Dan Watkins was convicted of manslaughter, and appeals.

Action by M. E. Woodward against the Tennessee River Navigation Company for damages for personal injuries, sustained by the falling of a piece of timber while plaintiff was a passenger therein. Judgment for plaintiff in the sum of $800, and the defendants appeal.

<p>1. Criminal law &wkey;l 144(2) — Presumption is that grand jury had sufficient evidence before it on which to find indictment. ,</p> <p>Nothing appearing to the contrary, it will be presumed that the grand jury had legal and sufficient evidence before it upon which to find the indictment.</p> <p>2. Criminal law <&wkey;43 — Prosecution for killing hog could be maintained, despite pendency of owner’s civil suit for statutory penalty.</p> <p>A prosecution, under Code 1907, § 6230, for killing a hog, the property of another, _ could be maintained despite pendency of a civil suit in the same court under section 4245, wherein the owner of the hog was seeking to recover the statutory penalty of five times its value, and the state was not required to elect as to whether it would-continue to prosecute the criminal case or the civil suit.</p> <p>3. Abatement and revival <&wkey;8(l) —Plea of pendency of other action bad unless judgment in first action would conclude parties.</p> <p>The plea of another action pending is bad unless the judgment rendered in the first action would conclude the parties and operate as a bar to the second.</p> <p>4. Criminal law <§=43 — Pendency of civil action for killing hog could not be considered in mitigation of offense.</p> <p>In a prosecution, under Code 1907, § 6230, for killing a hog, the property of another, the owner’s civil suit for damages for the killing of the same hog under section 4245 could not be considered .in mitigation of defendant’s offense or his punishment; if the civil suit was admissible in any event, it was only in mitigation of defendant’s fine.</p> <p>5. Animals <&wkey;45 — Instruction in prosecution for killing hog abstract and involved.</p> <p>In a prosecution, under Code 1907, § 6230, for killing a hog, the property of another, a charge that, if the jury found that the owner of the hog was prosecuting a civil suit against defendant to recover $125 for the same hog mentioned in the indictment, they might consider the fact in making up the verdict, held abstract and involved, as not showing how or to what extent pendency of the civil suit should be considered.</p> <p>6. Criminal law <&wkey;8l4(8, 9) — Instructions in prosecution for killing hog properly refused as abstract.</p> <p>In a prosecution, under Code 1907, § 6230, for killing a hog, the property of another, requested instructions that if the jury found that defendant shot the hog, but when he did so the hog was in his growing crop, inclosed by a lawful fence, the fact might be considered either in mitigation or justification, etc., were properly refused defendant as abstract; there being no proof as to whether defendant’s crops were inclosed by a lawful fence.</p> <p>7. Criminal law <&wkey;>1033 (2) — Defendant should have brought to attention of triqi court as required by rule question of venue.</p> <p>In a prosecution for an offense, if defendant was of the opinion that the venue was not proven, the matter should have been brought to the attention of the trial court as required by circuit court rule 34.</p> <p>8. Criminal law <§=806(1, 3) — Instructions on malice and reasonable doubt need not be repeated.</p> <p>In a prosecution, under Code 1907, § 6230, .for killing a hog, the property of another, where in its oral charge and in given written charges the court charged the jury on the doctrine of reasonable .doubt and on the subject of malice, its refusal to give other written charges to like effect was not error.</p> <p>9. Animals <&wkey;45 — Instructions in prosecution for killing hog properly refused as contrary to statute.</p> <p>In a prosecution, under Code 1907, § 6230, for killing a hog, the property of another, charges, requested by defendant, that if the jury should find him guilty it was not bound to fix a fine of, at least double the value of the hog, were properly refused, as contrary to the provisions of the statute.</p> <p>10. Criminal law <©=829(16) — Oral charge on question of interest of witness not required to be repeated on written request.</p> <p>In a prosecution for an offense, where the court’s oral charge fully covered the question of the interest of any witness testifying in the cáse, the refusal of defendant’s requested written charge to such effect was without error.</p> <p>11. Criminal law &wkey;>814(8, 9) — Requested written charge in prosecution for hog killing abstract.</p> <p>In a prosecution, under Code 1907, § 0230, for killing a hog, the property of another, defendant’s requested written charge that he would not be guilty if another killed the hog was abstract, in the absence of evidence that such other so killed the hog.</p> <p>12. Criminal law <&wkey;972 — Motion in arrest granted only on matters apparent of record.</p> <p>A motion in arrest of judgment is granted only on matters apparent on the record.</p> <p>13. Criminal law &wkey;>l 124(4) — Ruling on motion for new trial not reviewed, where record does not show evidence offered.</p> <p>On appeal from a conviction, ruling on motion for new trial will not be reviewed where the record does not show what, if any, evidence was offered on the motion.</p> <p>14. Criminal law <&wkey;429(2) — Summons and complaint in injured party’s civil action against defendant properly admitted.</p> <p>In a prosecution, under Code 1907, § 6230, for killing of a hog, the property of another, the summons and complaint in the owner’s action against defendant to recover the statutory penalty was properly admitted in evidence.</p> <p>15. Criminal law t&wkey;406(6) — Declaration of defendant, charged with killing hog, admissible as made against interest.</p> <p>In a prosecution, under Code 1907, § 6230, for killing a hog, the prope'rty of another, it was competent for the owner of the hog as a witness .to testify that defendant said he killed a hog; the declaration being against interest.</p> <p>16. Animals <&wkey;45 — Evidence of condition of hog killed admissible to prove corpus delicti.</p> <p>In a prosecution, under Code 1907, § 6230, for killing a hog, the property of another, testimony of such other as a witness that he found wounds on the hog, etc., was admissible, as all the matters testified to were circumstances and facts tending to prove the corpus delicti.</p> <p>17. Criminal law <&wkey;452(l) — Owner of hog killed properly allowed to state value.</p> <p>In a prosecution, under Code 1907, § 6230, for the killing of a hog, the property of another, .the owner of the hog as a witness was properly allowed to state its value.</p> <p>18. Criminal law <&wkey;ll71(l) — Controversies between counsel held not to have affected verdict.</p> <p>In a prosecution, under Code 1907, § 6230, for killing a hog, the property of another, controversies on the part of counsel for the state and for defendant held not of such a character as to have entered into or affected the verdict of the jury.</p> <p>19. Animals t&wkey;45 — Evidence of injury to crops by hog killed held inadmissible.</p> <p>In a prosecution, under Code 1907, § 6230,' for killing a hog, the property of another, in the absence of evidence as to whether the fence inclosing defendant’s field was a lawful fence, or whether the stock law was in force in such area, there was no error in refusing to permit a witness to answer questions as to the amount of corn destroyed by the owner’s hogs, particularly where the testimony was not confined to injury to the crops at the time of killing the hog.</p> <p>20. Witnesses <&wkey;>344'(l) — Character of owner of hog killed not provable by particular acts.</p> <p>In a prosecution, under Code 1907, § 6230, for killing a hog, the property of another, it was incompetent for defendant to show by certain witnesses that they knew of no one in the community where the owner of the hog lived that had not had trouble with him; the owner’s character could not be proved by particular acts.</p> <p>21. Criminal law <&wkey;385 — Defendant not permitted to testify as to whether he heard certain testimony.</p> <p>In a prosecution, under Code 1907, § 6230, for killing a hog, the property of another, where a witness testified that he shot one of the owner’s hogs, and that he, the witness, and defendant had a crop side by side in the same field, there was no error in refusing to permit defendant to testify as to whether he heard the testimony of the witness to such effect.</p> <p>22. Witnesses <&wkey;>389 — Defendant could be questioned as to statements for purpose of impeachment.</p> <p>In a prosecution, under Code 1907, § 6230, for killing a hog, the property of another, questions propounded to defendant relative to certain statements made by him to three witnesses, including the owner of the hog, at named times and places, were proper, where such parties were placed on the stand by the state, and the answers were as to material matters which defendant denied making so that the- state could impeach his testimony.</p> <p>23. Witnesses <&wkey;391 — Where language of questions to witnesses same as predicate for impeachment, they were proper.</p> <p>Where the language of questions put to witnesses as to statements made by defendant to them was substantially the same as the predicate for- impeachment of defendant, no error was committed by the trial court in overruling defendant’s objection and motion to exclude.</p> <p>24. Witnesses tg=^361 (I) — State could show general good character for truth of its witness when attacked.</p> <p>In a prosecution, under Code 1907, § 6230, for killing of a hog, the property of another, there being testimony thpt a state’s witness, the owner of the hog, had a bad reputation in the community where he lived, and certain witnesses for defendant having testified they would not believe him on his oath in a court of justice, the state then had a right to show his general good character for truth and veracity.</p> <p>25. Witnesses <&wkey;>357 — Questions relative to character of owner of hog killed proper.</p> <p>In a prosecution, under Code 1907, § 6230, for killing a hog, the property of another, questions propounded to a witness relative to the character of the owner of the hog, a witness for the state, held, proper.</p>

Kyle, Judge. Arthur Pressjey was convicted of perjury, and he appeals. The official report was the best evidence, and hence the court erred in permitting its contents to be shown by oral testimony. Acts 1915, p. 859. Under the evidence in this case, the affirmative charge, as requested by the defendant, should have been given. 74 Ala. 34; 68 Ala. 551. Counsel discuss other matters of evidence, but without further citation of authority.

<p>1. Witnesses &wkey;>363(2) — Defendant cannot impeach own witness.</p> <p>Where defendant was jointly indicted with another, but, on motion of such other, a severance was granted, and on defendant’s trial he introduced a witness, who testified that he had been a witness against the other, and had testified in such case, and was asked if he had a talk with his own father before testifying, court did not err in refusing to permit defendant’s counsel to show the state of feeling existing between the witness’ father and the defendant, since defendant could not impeach his own witness.</p> <p>2. Witnesses <&wkey;388(5) — Proper to question witness as to testimony in trial of coindictee for purpose of laying predicate of impeachment.</p> <p>It was competent for the solicitor on cross-examination to ask defendant’s witness if he had not, at a former trial of one charged jointly with the defendant with the offense for which defendant was now being charged, testified to certain facts, for the purpose of laying a predicate for impeachment.</p>

<p>Appeal from Circuit Court, Randolph County; Lum Duke, Judge.</p> <p>Pickens Smith was convicted of perjury, and he appeals.</p> <p>Counsel discuss the assignments of error, but without citation of authority.</p> <p>Where the question is not raised below, it cannot be insisted for the first time on appeal that the evidence does not support the judgment. 16 Ala. App. 592, 80 South. 166.</p>

<p>Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.</p> <p>Neil McKinney was convicted of burglary, and appeals.</p>

<p>Statutes &wkey;>255 — Penal statute not providing when taking effect not operative till after 60 days from approval, and conviction void for acts within that time.</p> <p>The act making it an offense to manufacture, sell, give, or possess apparatus to be used in manufacturing prohibited liquors (Laws 1919, p. 1086), not containing any special provision as to when it should take effect, therefore, under Code 1907, § 7805, did not become operative till expiration of 60 days after its approval, and there could be no conviction for acts committed within such period.</p>

W. Harralson, Judge. Oscar Baker was convicted of assault with intent to murder and he appeals. It is alleged by the state that the defendant went to the home of Oyler, and told him that Edwards had cut a drummer’s coat off, and to come on down -town, Oyler being the policeman in the town; that Oyler went in response to the call, and when he reached town the difficulty arose or was in progress, and that the defendant struck Oyler with a brick, injuring him severely.

L. Brewer, Judge. Andrew Craven was convicted for failure to work the public roads and appeals.

J. Garrison, Judge. Jim (alias James) White was convicted of manslaughter, and appeals.

K. McMorris, Judge. Action by L. A. Taunton against the Tallassee Falls Manufacturing Company for damages for personal injuries. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Circuit Court, Jefferson County ; Romaine Boyd, Judge.</p> <p>Action by the M. O. Kiser Company against S. H. Pope for damages for obtaining goods, wares, or merchandise by false or fraudulent misrepresentation. Judgment for defendant, and plaintiff appeals.</p> <p>.The plaintiff sold to D. D. Hammond & Co. a bill of shoes, which bill has never been paid for. S. H. Pope was a member of the firm, and when the goods were ordered a certain statement was handed him by the salesman to be filled out and signed and to accompany the order for the goods. This statement was filled out and signed in the name of the partnership, by S. H. Pope, and many of the questions asked were not answered and many of the blank spaces left unfilled. These statements and the answers to the various questions are made the basis for charges for fraud and misrepresentation.</p> <p>There was no discovery of the fraud until May, 1917, and the statute of limitations did not begin to run until that time. 12 Ala. App. 464, 67 South. 754; 146 Ala. 660, 41 South. 757. Until the plaintiff knew the facts, there could be no election of remedy-. 113 Ala. 489, 21 South. 405; 15 Cyc. 261. The discharge in bankruptcy constitutes no bar to this kind of suit. 228 U. S. 27, 33 Sup. Ct. 505, 57 L. Ed. 718. The failure to answer questions as to amount of mortgage or other indebtedness was an implied representation that there was no such indebtedness. 119 Ala. 429, 24 South. 710; 20 Cyc. 15; (D. C.) 10 Am. Bankr. R. 748, 125 Fed. 562 ; 8 Ga. App. 449, 69 S. E. 576.</p> <p>The case was tried by the court without the intervention of a jury, and every presumption will be indulged as to its correctness. Ante, p. 295, 84 South. 865; 196 Ala. 403, 72 South. 52. The failure to answer the questions did not constitute a fraud. 12 R. C. L. §§ 83, 108, 111, 172; 78 Ala. 331. The action was barred by section 4852, Code 1907.</p>

<p>Criminal law ¡&wkey;l094 — Where record is proper, conviction must be affirmed, in absence of bill of exceptions.</p> <p>Where an appeal from a conviction is taken on the record, without a bill of exceptions, the conviction must be affirmed; the record appearing regular.</p>

<p>1. Intoxicating liquors &wkey;>236(6/2) — Prima facie case held to prove that liquor looked, foamed, smelt, and tasted 'like beer.</p> <p>In prosecution for having in possession prohibited liquor, state made out a prima facie case where witness testified that he had drank beer, that the contents of the bottle in question looked like beer and foamed like beer, that it smelt and tasted like beer, and that the only difference that he had found was that it did not have the kick, in view of Acts 1915, p. 33, § 32%; Acts 1919, p. 6, § 1.</p> <p>2. Intoxicating liquors <&wkey;233(2) — Exclusion of bottle as evidence held proper.</p> <p>Where state made out prima facie case' in prosecution for having in possession prohibited liquor by testimony of witness that he had drank beer, that contents of bottle looked like beer and foamed like beer, and that it smelt and tasted like beer, and that the only difference that he had found was that it did not have the kick, court did not err in excluding a bottle of the liquid claimed to be intoxicating and an original bottle without the contents in which beer was sold and marked during the time its sale was legalized, since the mere dissimilarity in bottles could not have lifted the burden resting on defendant under Acts 1915, p. 33, § 32%; Acts 1919, p. 6, § 1.</p> <p>3. Criminal law &wkey;304(2) — General appearance of heer bottie matter of common knowledge.</p> <p>The general appearance of an original beer bottle is a matter of common knowledge.</p> <p>4. Criminal law &wkey;>31 — Immaterial that officers countenance sale of liquid at other places in state. -</p> <p>In prosecution for having in possession or selling a prohibited liquor or beverage known as “Fehro,” it was immaterial that the law enforcement department of the state had countenanced the sale of Fehro at other places in the state; it not being their duty to construe the law but to enforce it.</p> <p>5. Criminal law &wkey;260(I I) — Findings of facts on contradictory evidence not disturbed on appeal.</p> <p>On appeal from a conviction for having in possession intoxicating liquors, where the trial court had the witnesses before it and was able to observe their manner and demeanor on the stand, appellate court will not disturb the findings of fact.</p>

Clair County; O. A. Steele, Judge. Ed. Brogden was convicted of manufacturing prohibited liquors, and appeals. The indictment was in the usual form. The demurrers raised the question of the unconstitutionality of the act on which the prosecution was based.

<p>!. Criminal law t&wkey;5SI (I)— State has burden of proving guilt beyond a reasonable doubt.</p> <p>The state has the burden of proving defendant’s guilt beyond a reasonable doubt.</p> <p>2. Criminal law <&wkey;260(l 1) — Reasonable presumptions indulged in favor of correctness of judgment.</p> <p>Where a case was prosecuted before a judge, and where all the evidence was given ore tenus and was in sharp conflict, all reasonable presumptions are allowed in favor of the correctness of the judgment.</p>

<p>1. Criminal law <&wkey;lll6 — No review of ruling on demurrer, in absence of showing of ruling.</p> <p>Where the indictment was demurred to, but the judgment failed to show any ruling on demurrer, there is nothing for the appellate court to pass on.</p> <p>2. Criminal law t&wkey;| 144(3)— Overruling motion to quash presumed proper, in absence of motion.</p> <p>Where judgment shows a ruling on a motion to quash the indictment, but no motion to quash appears in the record, the appellate court wiE presume that the court’s action on the motion was without error.</p> <p>3. Criminal law <§=s>364(3) — Statement of defendant when arrested admissible as res gestee.</p> <p>In prosecution for manufacturing liquor, it was not error to admit testimony of witness to statement made by defendant at the still at the time the arrest was made; it being a part of the res gestae.</p> <p>4. Criminal law <@=373 — Crime of manufacturing liquor is continuous in nature, and evidence of other runs is admissible.</p> <p>The crime of manufacturing liquor is continuous in its nature, and when referring to the same still and location, proof of other runs having been made would be competent to establish the offense.</p>

B. Foster, Judge. Lewis Anderson was convicted of violating the Prohibition Law, and he appealed. The finding of the still was improperly admitted in evidence. 196 Ala. 679, 72 South. 310, L. R, A. 1916F, 1018. The court erred in admitting the evidence relative to tracks. 118 Ala. 79, 23 South. 776. There was no error in admitting evidence concerning the still and the defendant’s connection therewith. 14 Ala. App. 44, 70 South. 990; 12 Ala. App. 265, 69 South. 910.

<p>Habeas corpus &wkey;4, 30(3) — Petition for release of minor from probation officer cannot take place of appeal, and writ is not directed to irregularities in judgment of juvenile court.</p> <p>A petition in habeas corpus for release of a delinquent child from control of probation officer is a collateral attack upon the judgment of the juvenile court, given original and exclusive jurisdiction in such eases by Act Feb. 19, 1919 (Acts 1919, pp. 128-144), and exercising chancery jurisdiction and power as to such children, and as habeas corpus cannot be made to do service for an appeal, and as the writ is not directed to error or irregularity but to the question whether the judgment is a mere nullity, an answer setting up a judgment reciting every necessary jurisdictional fact, and valid on its face, is sufficient answer to the petition in view of Code 1907, § 7032, providing that regularity or justice of a judgment cannot be reviewed on habeas corpus.</p>

C. B. Gwin, Judge. Howard Stanley was convicted of robbery, and he appealed. The court should have directed a verdict, since the venue was not proven. 148 Ala. 608, 42 South. 999. The court erred in its charge as to assault and battery. 118 Ala. 115, 24 South. 414. Counsel discuss assignments of error relative to evidence, but without citation of authority.

A. Steele, Judge. Frank Lyles was convicted of violating the prohibition law, and appeals. The court was in error in its oral charge, as well as in refusing the charges requested by the defendant. 31 Cye. 924, and notes.

Greene, Judge. Habeas corpus proceedings by Gladis Harden to secure her discharge from quarantine, in which she was detained by Dr. J. D. Dowling, health officer. From an order discharging the petitioner the City of Birmingham appeals. It was within the authority and was the duty of the health officer to hold the petitioner in 'quarantine.

Greene, Judge. Habeas corpus proceedings by Dora Glass to secure ber discharge from quarantine, in which she was detained by Dr. J. D. Dowling, Health Officer.' From an order discharging the petitioner, the City of Birmingham appeals.

<p>1. Depositions <&wkey;39 — Amendment of commis. sion to take depositions by entering true date proper.</p> <p>Where the date of the commission to take depositions under Act 1911, p. 487, was erroneously entered, it was proper for the court, after being satisfied by proof, to permit the clerk to amend the commission by entering the true date, and it appearing the opposite party had 10 days after notice within which to file cross-interrogatories, other requirements being complied with, the court properly overruled the motion to suppress.</p> <p>2. Appeal and error &wkey;>97l(5) — Leading questions largely in discretion of court.</p> <p>The asking of leading questions, while not approved by the dourts, is largely in the discretion of the trial judge; and, unless the appellate court is convinced that substantial injury was done the objecting party, a judgment, otherwise free from error, will not be reversed. '</p> <p>3. Corporations <&wkey;>657(3) — Contracts of foreign corporations, which have not qualified to do business in state, void.</p> <p>Contracts, made by foreign corporations in Alabama before qualifying to do business in th'e state in accordance with the requirements of its Constitution and statutes, are void.</p> <p>4. Commerce <&wkey;I5 — Money, a medium of exchange not protected by interstate ^commerce statutes; “article of commerce.”</p> <p>Money, being merely a medium of exchange, is not such ■ an article of commerce as is protected from state regulation relative to foreign corporations by the federal Interstate Commerce statutes.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Article.]</p> <p>5. Corporations &wkey;>642(6) — Single transaction of foreign corporation constitutes “doing of business.”</p> <p>One transaction by a foreign corporation within the state will constitute a “doing of business” within the meaning of the statute requiring certain steps before such a corporation is qualified to do business in the state.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Doing Business.]</p> <p>6. Corporations <&wkey;873*-That place where notes to foreign corporation were dated and payable was in Alabama held prima facie evidence that loan was made in state, but subject to rebuttal.</p> <p>In an action by plaintiff foreign corporation to recover on notes representing a loan to defendant by plaintiff, not authorized to do business in the state, the fact that the notes were dated at a city in Alabama and payable at a bank there made a prima facie case that the loan was made in Alabama, but such a presumption is one of fact, as contradistinguished from a presumption of law, and disappears when undisputed evidence rebuts it. ■</p>

<p>Appeal from Circuit Court, Calhoun County ; Hugh D. Merrill, Judge.</p> <p>Dock Harell and Richard Griffith were convicted of violating the prohibition law, and they appeal.</p>

T. Lowe, Judge. John Tapscott was convicted of violating the prohibition law, and he appeals. The court erred in not permitting the questions addressed to the witness Waugh. 108 Ala. 233, 19 South. 309; 133 Ala. 203, 32 South. 268. 3 Ehc. of Evidence, 768-772. Counsel discuss other assignments of error, but without further citation of authority.'

<p>Evidence i&wkey;43(2) — Court of Appeals knows when an order or judgment has been affirmed by it.</p> <p>The Court of Appeals, having affirmed an order or a judgment, is bound to know on a subsequent appeal from such order or judgment that, despite the certificate of the clerk of the circuit court to the contrary, the cause is not pending in the lower court.</p>

<p>Larceny <&wkey;7 — Open taking by defendant of his property held not larceny.</p> <p>Where testimony on part of the state and defendant showed that the pistol taken was the property of defendant, and that the taking was open, and that he asked those present if they thought it would be all right, defendant cannot be convicted of larceny.</p>

W. Harralson, Judge. Sam Roberson was convicted of violating the prohibition law, and he appealed. The indictment is as follows, omitting formal charging parts: Count 1: Sam Roberson sold, offered for sale, kept, or had in possession for sale, bartered, exchanged, gave away, furnished at a public place, or otherwise disposed of prohibited liquors or beverages.

<p>Appeal from Circuit Court, Lauderdale County; C. P. Almon, Judge.</p> <p>Emmett Wooten was convicted of manufacturing prohibited liquors and he appealed.</p> <p>The evidence tended -to show the finding of a still in operation, and that it was being operated by two men, -one of whom was the defendant. Then there was evidence tending to show that the defendant was there, and it was a case of mistaken identity.</p> <p>Charge 5, requested by the defendant, is as follows:</p> <p>(5) If you believe that there were only two men at the still when the officers approached, and one of these men was Harve Wooten, you cannot find the defendant guilty.</p>

W. Harralson, Judge. Homer Johnson was convicted of malicious mischief, and he appeals. The offense charged is not covered by any statute of the state, and indictment was not good as a common-law indictment. 25 Cye. 1673, 1678, and cases cited.

Action by Samuel J. Neuberger against the Preferred Accident Insurance Company of New York upon a policy of insurance covering an automobile risk. The court sustained demurrers to plaintiff’s replication, whereupon plaintiff took a nonsuit and appealed. The demurrers to the replication are 'as fqllows: (1,) The facts, alleged are insufficient to show that the release, signed by the plaintiff, was executed because of duress.

Appeal'from Circuit Court, Lauderdale County; C. P. Almon, Judge. Miller Johnson was convicted of manufacturing prohibited liquors, and he appeals. Charge 3, refused to defendant, is as follows: (3) You cannot convict defendant if you have any doubt in your mind that the officers identified one of the men in the wagon as Miller Johnson.

Action by Ruth Cowan against H. L. Pruitt. Judgment for defendant when demurrers to several counts of the complaint were sustained, and plaintiff appeals.

H. Reval, Judge. Henry Barfoot was indicted for murder, and brought habeas corpus to fix bail, and from an order granting him bail the State appeals.

Petition of the John F. Byers Machine Company for a writ of mandamus, to be directed to Hon. C. B. Smith, as judge of the Tenth Judicial Circuit, requiring him to set aside an order granting a new trial and restoring a case to the docket s.tyled “John F. Byers Machine Company v. Newell Contracting Company.” Under section 1, Practice Act for Jefferson County (Acts 1888-89, p. 797), the court cannot set aside a judgment by default or nil dicit, without the applicant brings…

<p>1. Account stated <&wkey;8 — When proved, precludes contention that indebtedness was due another than plaintiff.</p> <p>In action on account stated, where the evidence shows an account stated between plaintiff and defendant, the defense that the indebtedness which was the subject-matter of the account was in fact due to another than plaintiff cannot be sustained.</p> <p>2. Appeal and error <&wkey;l93(4) — Defect in complaint to be reached by demurrer, and not available for the first time on appeal.</p> <p>The complaint alleged that an account was stated between plaintiff and defendant partnership, that the individual defendant was a mem-' her of the partnership at the time of the creation of the indebtedness, and that the indebtedness remained unpaid. Held, that the question whether the stating of an account between plaintiff and the defendant partnership amounted to a stating between plaintiff and the individual defendant partner arose out of a possible defect in the complaint, available only by appropriate demurrer, and, not having been brought to the trial court’s attention, was not reviewable.</p>

<p>1. Exceptions, bill of <&wkey;55( I) — Method of establishing bill, on trial judge’s refusal to sign, stated.</p> <p>Where trial judge refuses to sign bill of exceptions on the ground that the bill presented is incorrect, the appellant’s remedy is to establish the bill of exceptions by application to the Supreme ■ Court under Code 1907, § 3021, and not by the method provided for the establishment of bills of exceptions where the trial judge dies, resigns, is sick, etc., by Acts 1915, p. 816.</p> <p>2. Exceptions, bill of &wkey;»55(4) — Bill not established in Supreme Court where it did not truly state point of decision and facts.</p> <p>Appellant’s motion to establish bill of exceptions, following judge’s refusal to' sign bill presented because incorrect, will not be granted by the Supreme Court under Code 1967, § 3021, where it affirmatively appears from the indorsements of the trial judge in which he was joined by counsel for appellant and for appellee, and from thq corrections and interlineations in the bill, that the bill of exceptions presented to the trial judge for his signature did not truly state the point of decision and the facts as required by such statute to. entitle appellant to invoke the remedy thereunder.</p>

S. Williams, Judge. Annie Washington was convicted of manslaughter, and she appeals. The party killed was the husband of the defendant, and the explanation of the difficulty was that the husband *had a gun, and she grabbed the stock which he was holding under his arm, and as she pulled it back the gun fired, killing him. Counsel discuss the evidence and the refused charges, but without citation of authority.

Grayson, Judge. Action by Joseph Patt against R. G. Welsch for breach of contract. Judgment for plaintiff in an insufficient amount, and he appealed. The suit was against Welsch as the surety on the breached contract entered into by plaintiff, by Frank and Leo Flinn, for the rent of a two-story building, and claimed the sum of $1,342, together with attorney’s fees. The judgment was for $287.86.

M. Miller, Judge. J. M. Williams was convicted of failing to dip his cattle, and he appealed. Held: under Acts 1919, p. 29, that the complaint was sufficient. 14 Michie’s Ala. Dig, 163. The act was constitutional. 203 Ala. 271, 82 'South. 521. The question was whether or not he dipped, and hence there was no error in the evidence.

Y. Evans, Judge. Action by Mrs. Frances h. Hameker against the Hill Grocery Company for damages for personal injuries sustained while on the premises. Judgment for plaintiff, and the defendant appeals.

W. Harralson, Judge. Bob Lang was convicted of manufacturing prohibited liquor, and appeals. The indictment as to punctuation, etc., is as follows: The grand jury of said county charge that, before the finding of this indictment, Bob Lang distilled, made or manufactured alcoholic, spirituous, malted or mixed liquors or beverages, a part of which was alcoholic, since January 25, 1919, against the peace and dignity of the state of Alabama.

<p>Appeal from Circuit Court, Dale County; J. S. Williams, Judge.</p> <p>Jesse Pettiee, alias Jesse Pettus, was convicted of assault and battery, and he appealed.</p> <p>Wyatt, the man ’alleged to have been assaulted and cut by the defendant, was asked the following questions on cross-examination:</p> <p>“Did not a man by the name of Bowman pay you $25, and did you not accept it as a settlement for that affair, and for the injury done you?”</p> <p>The state’s objection was sustained to this question. The witness was also asked the following question:</p> <p>“And later didn’t Pettiee go to a fellow named Henry Johnson and turn you up’ about that still, and didn’t Johnson go and tell you that you would have to run that still out of there or leave yourself?”</p> <p>Also:</p> <p>“Didn’t Henry Johnson go to you and require you to remove that still away from there?”</p> <p>Also:</p> <p>“Will ask you if this same fellow Bowman, who is here as a state’s witness, didn’t intervene between you and Pettice and make up that difficulty, and then if Pettice didn’t go and turn up the Bowman still.”</p> <p>Also:</p> <p>“Isn’t Bowman being prosecuted now in Coffee county about that still, and isn’t it since that that you and Bowman are coming here against Pettice?”</p> <p>There was no error in the rulings on the evidence. 4 Michie’s Ala. Dig. 571; 16 Ala. App. 501, 79 South. 199. The charge refused was fairly and substantially covered, as well as being improper. 16 Ala. App. 545, 79 South. 804.</p>

T. Lowe, Judge. Fred Brown was convicted of carrying a concealed weapon, and appeals. Brief of counsel did not reach the Reporter. Brief of counsel did not reach the Reporter.

C. B. Gwin, Judge. William E. Stewart was convicted of murder in the second degree, and he appeals. The court erred in excusing the jurors without consent of defendant. Acts 1919, pp. 319, 1041. The condition of the body some time after the killing was improper testimony. 160 Ala. S2, 49 South. 329; 200 Ala. 562, 76 South. 920. No confessions or admissions are proper until after proof of the corpus of the crime. 109 Ala. 50, 19 South. 494; 165 Ala. 99, 51 South. 311.

<p>Appeal from Circuit Court, Dekalb County; W. W. Harralson, Judge.</p> <p>. Walter White was convicted of manslaughr ter for the killing of Pope Horton, and he appeals.</p> <p>The 'following charges were refused the defendant:</p> <p>(12) If there is one single fact proved to the satisfaction of the jury, which is inconsistent with the defendant’s guilt, this is sufficient to raise a reasonable doubt, and the jury should acquit.</p> <p>(13) The defendant had the right to shoot in self-defense to save his life, or to save himself from great bodily harm, provided he was free from fault raj bringing on the difficulty, and provided, further, he had no reasonable mode of escape without increasing his danger.</p> <p>(14) If the defendant was free from fault in bringing on the difficulty and if he had no reasonable mode of escape without increasing his danger, then he had a right to- act in self-defense.</p> <p>(16) If, from the consideration of all the evidence in the case, there is created in the minds of the jury two reasonable theories as to the death of Horton, one theory against the defendant, and the other theory in his favor, then it is the duty of -the jury to accept the theory in favor of the defendant, and to acquit.</p> <p>The details of the telephone conversation were inadmisible. 7 Ala. App. 170, 62 South. 302; 17 Ala. App. 394, 85 South. 830. The court should not have deprived defendant of his right of self-defense because of such conversation. 14 Ala. App. 46, 70 South. 991; 15 Ala. App. 627, 74 South. 740.</p> <p>The telephone conversation is on the same basis as a personal conversation, and was admissible on the theory of freedom from fault and in bringing on the difficulty. 16 Ala. App. 467, 79 South. 141; 140 Ala. 1, 37 South. 90. The written charges were prop? erly refused. 15 Ala. App. 311, 73 South. 200; 197 Ala. 613, 73 South. 340; 17 Ala. App. 149, 82 South. 639; 16 Ala. App. 545, 79 South. 804.</p>

AV. Ilarralson, Judge. Clyde Little was convicted of assault with intent to murder, and he appeals. The court erred in admitting the testimony of the assaulted party as to injury, etc. 17 Ala. App. 394, 85 South. 830. Counsel discuss other assignments, but without further citation of authority.

Brickell, Judge. Wesley Powell was convicted of violating •the prohibition law, and he appeals. Brief of counsel did not reach the Reporter. There is nothing ill the proposition that the state statute is superseded by the Volstead Act and the Eighteenth Amendment. 236 Mass. 281, 128 N. E. 273, 10 A. L. R. 1568; (D. C.) 265 Fed. 950; 144 Minn. 342, 175 N. AV. 0S3; 144 Minn. 337, 175 N. AV. 685; 148 La. 31, 86 South. 602.

<p>Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.</p> <p>Action by L. F. Seyfert’s Sons, Incorporated, against J. F. Donahoo. Judgment for defendant, and plaintiff appeals.</p> <p>The court erred in holding that the terms of the contract were fully agreed on, and therefore that the minds of the parties had met. 35 Ala. 607; 37 Ala. 706; 50 Ala. 448; 56 Ala. 24; 2 South. 892; 9 Cyc. 267.</p> <p>Counsel discuss the facts in the case, with the insistence that the finding of the court was proper; but they cite no authority in support of their contentions.</p>

P. Agee, Judge. Benjamin Crumley was convicted of; manslaughter, and he appeals. The following charges were refused to the defendant: t (6) The court charges the jury that you are not authorized to find a verdict of guilt on the testimony of a single witness, if you have a reasonable doubt of the truth of his statement.

T. Lowe, Judge. Habeas corpus proceeding by D. M. Pixley. Discharge denied, and petitioner appeals. Defendant was entitled, under the facts, to his discharge. 39 Ala. 560; 140 Ala. 177, 37 South. 250; section 7023, Code 1907. The returns make out a prima facie case, and the court properly denied the writ. 17 Ala. App. 405, 85 South. 590; 16 Ala.

W. I-Iarralson, Judge. Albert Wallis was convicted of burglary, and he appeals. The court erred in the admission of evidence relative to the tracks. 105 Ala. 127, 16 South. 801; 122 Miss. 647, 84 South. 700; 157 Ala. 63, 47 South. 176; 12 Ala. App. 160, 68 South. 521. The testimony of the accomplice was not sufficiently corroborated, and should have been excluded. Section 7897, Code 1907; 15 Ala. App. 72, 72 South. 557; 16 O. J. 929; 17 Ala.

T. Lowe, Judge. Assumpsit by the Premier Refining Company against T. E. Drinkard. There was judgment by default, and defendant appeals. The court erred in rendering judgment with proof of the debt. 25 Ala. 451; 128 Ala. 332, 29 South. 10; 38 Ala. 344; 67 Ala. 252; 76 Ala. 373; 163 Ala. 594, 50 South. 1034; 156 Ala. 573, 47 South. 307. .Brief of counsel did not' reach the Reporter.

<p>1. Embezzlement <@=>11 (2) — Larceny <@=I5(3) —Whether fraudulent conversion- of funds constituted larceny or embezzlement depended on whether defendant was trespasser or agent.</p> <p>Where the evidence showed that only one act, the fraudulent misappropriation of money by a public employé, 'was being charged by various counts, the misappropriation was either larceny or embezzlement depending upon whether the taking constituted a trespass or whether it was fraudulent conversion of funds coming into defendant’s hands as an agent.</p> <p>2. Indictment and information <@=>125(41) — Larceny and embezzlement may be charged in same count in alternative.</p> <p>Under Code 1907, § 7151, larceny and embezzlement can be charged in the same count in an indictment in the alternative.</p> <p>3. Criminal law <§=>753(1) — Indictment and information <@=>132(5) — Refusal to’ give peremptory change on larceny under indictment containing counts for embezzlement and larceny not error, and no election required.</p> <p>In a prosecution under an indictment containing counts for larceny and embezzlement, where the evidence showed that only fraudulent misappropriation was being charged, the refusal to give a peremptory charge- on the larceny counts was not error; the state not being compelled to elect under which count it would prosecute, nor the jury forced to elect under which count they would convict.</p> <p>4. Criminal law <@=»1186(4) — Conviction not set aside for error when no substantial injury.</p> <p>In prosecution under an indictment containing 19 counts for grand larceny and' embezzlement, where the facts prove -defendant guilty of embezzlement charged in some of the counts, which necessarily exclude proof of trespass, the refusal to give an affirmative charge as to larceny, while technically erroneous, is without prejudice to defendant, and not a ground for reversal by reason of Code 1907, § 6264, providing that a conviction must not be set aside because of error, when the court is satisfied that no injury resulted therefrom to defendant.</p> <p>5. Embezzlement 30 — Allegation of ownership of money embezzled not necessary.</p> <p>In prosecution under an .'indictment containing counts for larceny and embezzlement, defendant having been appointed by a state employe under Acts 1911, p. 634, to collect license fees, where the arrangement defendant had with the state employs was as an agent of the employé, and the money was paid to him by reason of this agency, when he fraudulently converted such money to his own use, defendant was guilty of embezzlement, and it made no difference in whom the title to the money rested; allegation of ownership not being necessary in an indictment for embezzlement.</p> <p>On Rehearing,</p> <p>6. Criminal law 133 — Filing of brief and certificate of delivery to Attorney General condition precedent to rehearing.</p> <p>Application for rehearing to the Court of Appeals under rule 38 (198 Ala. xiii, 77 South,, vii), will not bo received and filed, unless such application is accompanied by a brief for the appellant and a certificate that a copy of such brief has boon delivered to the opposing counsel within 15 days after the rendition of judgment.</p>

<p>Appeal from Circuit Court, Lauderdale •County; C. P. Almon, Judge.</p> <p>W. B. Smith was convicted .of violating the prohibition law, and he appeals.</p> <p>The evidence of the state tended to show that three girls, passing through an apple orchard near the defendant’s house, found a two-gallon jug and two five-gallon jugs, emptied the contents of the two-gallon jug, and tasted the contents of the two five-gallon jugs, and each jug contained whisky; that the defendant and one Graham came up while they were in the orchard, loitered around, and within about 15 minutes afterwards secured the two five-gallon jugs, placed them in an automobile, and drove rapidly away. The evidence for the defendant tended to show that he went out into the orchard to break up a turkey which was setting, or to prepare potato ground, and that Graham just happened along, and that they knew nothing about the two jugs.</p> <p>Brief of counsel did not reach the Reporter.</p> <p>•Counsel discuss the assignments of error, but without citation of authority.</p>

Wilkinson, Judge. Action by tbe Ingram Land Company against Mrs. Viola G. Tubb for commissions on tbe sale of real, estate. There was judgment for plaintiff, which on motion of defendant was set aside, and new trial ordered, and from this later order plaintiff appeals.

<p>Agriculture <©=>13 — Furnishing supplies to crop producer gives no right to crops superior to execution.</p> <p>Those who furnished money and supplies to a tenant on the land of another did not thereby acquire any title to the crops produced by the tenant or any lien thereon which entitles them to claim the crops as against execution on a judgment against the tenant.</p>

P. Almon, Judge. W. J. Stewart was convicted of violating the prohibition laws, and he appeals. The facts do not support the judgment in this case, and the defendant was entitled to the affirmative charge. 17 Ala. App. 493, 85 South. 867. The facts of this case differentiate it from the case relied on by appellant, and, there being direct conflict in the evidence, the defendant was not entitled to the affirmative charge. 79 South. 802.

F. Koonce, Judge. Petition by David A. Fitzgerald for a writ of habeas corpus on the ground that he was illegally restrained of his liberty by the sheriff of Lauderdale county. From judgment denying the writ, he appeals. Brief of counsel did not reach the Reporter. Brief of counsel did not reach .the Reporter.

P. Almon. Judge. Andrew Jones was .convicted of owning a still, and he appeals. Counsel bases his argument that the affirmative charge should have been given, first, upon the proposition that the evidence was insufficient; and, second, upon the proposition that the federal court alone had jurisdiction, to which last proposition he cites the following cases: 204 Ala. 429, 85 South. 729; 16 Ala. App. 199, 76 South. 505; 223 U. S. 1, 32 Sup.

T. Lowe, Judge. Galvin McMillan was convicted of assault and battery, and he appeals. J. C. Draper was introduced and testified that he was 20 years old, had taken the oath as deputy clerk, and had made a search for the indictment, and that he could not find it. The witness was then asked, “What were the terms of the oath you took?” and questions of similar import, to all of which the state interposed objections, which were sustained.

M. Miller, Judge. Jim Mitchell was convicted of distilling prohibited liquor, and he appeals. The defendant was entitled to a-directed verdict. 65 South. 683; 90 Ala. 630, 8 South. 383, 24 Am. St. Rep. 850; 16 Ala. App. 152, '75 South. 828.

<p>Appeal and error <&wkey;IOIO(l) — Judgment will not be disturbed where supported by ample evidence.</p> <p>Judgment rendered by court after a trial without a jury will not be disturbed on appeal, where there is ample' evidence to support court’s conclusion.</p>

<p>Appeal from Circuit Court, Marshall County; W. W. Harralson, Judge.</p> <p>John Roberson, alias John Robertson, was convicted of violating the prohibition law, and he appealed.</p> <p>The affidavit, omitting formal charging part, alleges that John Roberson, subsequent to January 25, 1919, sold, offered for sale, kept or had in possession for sale, bartered, exchanged, or otherwise disposed of prohibited liquors or beverages, and, second, that John Roberson had in his possession or under his control, subsequent to January 25, 1919, an amount of prohibited liquors or beverages prohibited by law. The complaint filed by the solicitor charges, first, that within 12 months before the commencement of this prosecution John Roberson sold, offered for sale, kept or had in his possession for sale, bartered, exchanged, furnished at a "public place or elsewhere, or otherwise disposed of prohibited liquors or beverages; second, same allegation as above, except that it alleges the acts complained of to have happened within 12 months, and since January 25, 1919; third, that John Roberson, since January 25, 1919, and within 12 months before the commencement of this prosecution, had in his possession a quantity of prohibited liquors or beverages.</p> <p>The following are the charges refused to the defendant:</p> <p>(1) Unless you believe from the evidence that the jug of liquor found was the liquor charged as being the defendant’s, your verdict must be for the defendant.</p> <p>(2) The court charges the jury that the fact that the defendant jumped out of the buggy with a bundle, and unless you believe from the evidence that tbe bundle was the jug found as being the liquor or the defendant, your verdict must be for the defendant.</p> <p>The court erred- in failing to strike the complaint. 165 Ala. 197, 51 South. 357; 16 Ala. App. 138; 16 Ala. App. 508, 79 South. 269; 17 Ala. App. 402, 86 South. 163.</p> <p>The cases cited by the appellant demonstrate the correctness of the ruling of the court.</p>

<p>Criminal law &wkey;> 1083 — Circuit co.urt cannot order appeal withdrawn after certificate of appeal has been filed in appellate court.</p> <p>The circuit court was without jurisdiction to order appeal withdrawn after certificate of appeal had been filed in the appellate court.</p>

Kyle, Judge. Percy Eearn was convicted of receiving stolen property or concealing same, and be appeals. The evidence for the state tended to show that certain automobile tires and tubes were stolen from the place of business of Clarence Wise, and that some of them were sold by the defendant and one Lackey, and that others were concealed by them.

J. Martin, Judge. Action by R. C. Rollins against W. B. Watson and wife. Judgment for plaintiff, and defendants appeal. The following charges are referred to in the opinion: (4) The court charges the jury, if the defendants were in possession of the notes, then the presumption is they are paid.

W. I-Iarralson, Judge. C. E. Nailer was convicted of failing to dip cattle after notice, and he appealed. The court erred in admitting evidence of the contents of the notice to dip. Jones on Ev. §§ 218, 219, 376. The stub was not admissible. 94 Ala. 384, 10 South. 312; 94 Ala. 394, 10 South. 334; 18 Ala. 359; 15 Ala. 112; 103 Ala. 257, 15 South. ,594; 105 Ala. 257, 16 South. 714; 173 Ala. 629, 55 South. 909; 169 Ala. 409, 55 South. 989, Ann. Cas. 1912B, 366.

H. Reynolds, Judge. Habeas Corpus for the custody of an infant child by the parents, T. L. McDonald and Alice McDonald, against the maternal aunt and uncle, H. S. Watkins and Natie Watkins. Judgment awarding the child to the maternal aunt and uncle, and the parents appeal. Under the facts and the authorities the court erred in its judgment awarding the custody of the infant to the maternal aunt and uncle. 29 Cyc. 1612; 2 Ala. App. 113, 56 South. 873; 16 Ala.

A. Pearce, Judge. Detinue by the Motor Sales Company against A. B. McNeil, for the recovery of an Oakland automobile. Judgment for the defendant, and the plaintiff appeals. Acts 1911, p. 115, controls in this case. The court erred in directing a verdict for the' defendant. 67 Ala. 139, 42 Am. Rep. 104; 67 Ala. 112; 169 Ala. 154, 53 South. 1014, 33 L.' R. A. (N. S.) 374; 171 Ala. 420, 55 South. 100.

Leigh, Judge. Donnie May Dees and. Tom Long were convicted of assault and assault with intent to murder, respectively, and they appeal. The defendants were ¿barged with assault with intent to murder one Manford Dees, the husband of one of the defendants. The following are the charges refused to the defendants, necessary to be set out: 10.

J. Garrison, Judge. Curry Morris was convicted of assault with intent to murder, and he appeals. The jury commission had exhausted their powers when they met and filled the jury box, and therefore could not meet again, destroy the jury roll and refill the box. Acts 1909, p. 309; Acts Sp. Sess. 1909, p. 517; 204 Ala. 232, 85 South. 698; 178 Ala. 412, 59 South. 594. The motion cannot be reviewed, as it appears only in the record proper. 1 Ala. App. 140, 55 South. 449; 10 Ala.

<p>1, Evidence &wkey;>!47, 376(1) — Testimony as to system of bookkeeping admissible to corroborate receiving teller as to deposits made on particular date.</p> <p>In action against bank for deposits which bank denied having received, testimony as to system of bookkeeping used by bank in dealing with its customers on the days plaintiff claimed to have made the deposits was admissible, not to prove a negative, but in corroboration of the testimony of the receiving teller that no such deposits were in fact made.</p> <p>2. Evidence <&wkey;>l55(8), 383(8) — When part of bank books are in evidence, bank can introduce other books; passbooks prima facie evidence of bank’s obligations.</p> <p>A passbook is a part of the books of the bank, and in hands of depositor is prima facie evidence of the bank’s obligations as therein shown; and if the depositor, in a suit for deposits, is entitled to introduce in evidence that part of the bank’s books showing his account, in his possession, the bank is entitled to introduce that part of its books relating to the account kept by it and in its possession.</p> <p>3. Witnesses <&wkey;374(2) — Expressions of witness showing bias admissible.</p> <p>It is always competent to prove expressions -used by a witness tending to show feeling or bias toward the party against whom he is testifying.</p> <p>4. Evidence <£r=>480, 568(3) — Witness held qualified to testify that entries were not in plaintiff’s handwriting; weight of evidence being for jury.</p> <p>In action for deposits in which bank denied that plaintiff had made the deposits, and that the bank had made entries in plaintiff’s passbook showing deposits, witness who testified to having seen plaintiff make figures and write handbills could give his opinion the two entries in the passbook were not in plaintiff’s handwriting, the weight and sufficiency of such testimony being for the jury.</p>

L./ Brewer, Judge. Action by Hamp Lawrence against Joseph Bradford and his surety on an attachment bond. Judgment for plaintiff, and defendants appeal.

<p>Habeas corpus <&wkey;26 — One may not, after paying adjudged fine and costs, be taken into custody on account of conditional sentence to work on the road.</p> <p>Where one was adjudged guilty, and sen-' tenced to pay a fine and costs and to 30 days’ work on the streets, with provision, “Sentence suspended on his promise not to go to this house again,” and he then paid the fine and costs, subsequent effort to enforce the part of the sentence as to labor, he being taken into custody by an officer under verbal direction from the court, was without authority of law’, and he is entitled in habeas corpus proceeding to discharge; the sentence to work being in substance on condition, which the court is without authority to provide, and the court being without authority after he has suffered lawful punishment by payment of fine and costs assessed against him to impose further punishment.</p>

W. Harralson, Judge. Sam Roberson was convicted of manufacturing prohibited liquors, and he appeals.

W. Harralson, Judge. Nesbit Adams was convicted of distilling, and he appealed. The evidence tended to show that Adams was at home, in bed, when the officers visited his house; that some whisky was found buried in the garden, and some had been poured out; that a still was found in a ditch near by, -close to the line between Adams’ place and Woodham’s place.

W. Harralson, Judge. William A. Denham was convicted of violating the prohibition law, and he appeals. The affidavit and complaint sufficiently •appear from the opinion. The following charges were refused the defendant: (1-3) There is no evidence that the defendant disposed of any liquor to witness Beard on the night in question.

C. B. Gwynn, Judge. Action by J. L. Wood against the Alabama Great Southern Railroad Company, to recover money paid for parking cars. It is not necessary, and was not necessary, to file any tariff with the Railroad Commission with respect to parking cars. Elliott on Railroads, §§ 642, 1396; section 5522, Code 1907. The railroad was not acting, as a common carrier in renting parking space. 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560; 117 ü. S. 1, 6 Sup.

Greene, Judge. Action by Zack Perolio against the Tennessee Coal, Iron & Railroad Company, for damages for overflowing land.

Action by the Donald-Richard Company against S. P. peel on the common counts and special assumpsit.

<p>Criminal law &wkey;>1094 — Judgment affirmed in absence of bill of exceptions and error appearing in record.</p> <p>Where no error appears in the record and where there is no bill of exceptions and the trial judge has certified that no bill of exceptions has been presented to him and that the time for presenting it has expired, the judgment must be affirmed.</p>

Grayson, Judge. Annie Burke, alias “Derby,” and Jennie Helen, alias Janie Helms, were convicted of robbery, and they appealed. Sonny Boy was also indicted but tbe severance was granted upon motion of tbe state because be bad not been arrested. Tbe order for tbe venire was for 75 persons, including those drawn and summoned on tbe regular jury for tbat week.

Grayson, Judge. Petition by the State of Alabama on the relation of S. M. Adams for writ of man-damns to be directed to George E. Stone, as Treasurer of Mobile County, requiring him to number and register a certain warrant drawn on him by the board of revenue. From an order granting the writ respondent appeals. The act creating the office of board engineer is unconstitutional and void.

<p>Appeal from Circuit Court, Jefferson County; J. C. B. Gwynn, Judge.</p> <p>Claude Brown was convicted of violating the prohibition law, and he appeals.</p>

W. Harralson, Judge. Luke Conway was convicted of violating the prohibition law, and he appeals.

<p>1. Indictment and information &wkey;>190 — Conviction for attempting sustained under indictment (for manufacturing.</p> <p>The offense of attempting to manufacture prohibited liquors is embraced in the greater crime of manufacturing such liquors, and a conviction of attempting to manufacture prohibited liquors may be had under an indictment for manufacturing intoxicating liquors, where the evidence fails to make out the charge in the higher degree, but is sufficient to make out the lesser offense.</p> <p>2. Criminal law <&wkey;44 —What constitutes attempt to commit crime.</p> <p>To constitute the offense of attempt to commit a crime there must be something more than a mere intention or preparation; there must be some act moving directly toward the commission of the offense after the preparation is made and within the time laid in the indictment.</p> <p>3. Intoxicating liquors <&wkey;236( 19) — Evidence insufficient to sustain conviction of attempt to manufacture.</p> <p>In a prosecution for manufacturing prohibited liquor, evidence held insufficient to sustain a conviction of attempting to manufacture prohibited liquors.</p>

<p>Criminal law <&wkey;1094 — Judgment affirmed in absence of bill of exceptions and error appearing in record.</p> <p>Where the record on appeal appears regular, and no error is apparent thereon, and ■where there is no bill of exceptions before the court, and the lower court has certified that no bill of exceptions has been presented, and that time prescribed therefor lias expired, the judgment must be affirmed.</p>

A. Greene, Judge. A. B. Barton brings habeas corpus for discharge from custody and an order from the Governor of Alabama upon requisition issued by the Governor of Louisiana on- a charge of kidnapping in that state, which is asserted to be a felony. From an order denying the writ, petitioner appeals.

<p>Appeal from Circuit Court, Jefferson County; William E. Fort, Judge.</p> <p>Jim Lyons was convicted of violating the prohibition law, and he appeals.</p>

L. Jones, Judge. R. B. Tennison was convicted of disposing of mortgaged property, and he appeals.

A. Pearce, Judge. Hosea Austin was convicted of burglary and grand larceny, and be appeals. The prosecuting witness, S. O. Smith, testified as follows: “Two or three weeks after the store was broken into I had a conversation with defendant about it. I did not offer him any promise or make any threats or tell him it would be better for him to make a statement.

Circuit Court, Madison County; O. Kyle, Judge. Will Ricketts was convicted of violating the prohibition law, and he appeals. The complaint charges the offense practically as set out in the opinion.

<p>1. Habeas corpus <&wkey;!!3(6) — Appeal from denial of bail not perfected without statutory statement.</p> <p>An appeal from judgment adverse to one accused of murder in the first degree in habeas corpus proceedings for bail is not perfected where defendant failed to file a written statement signed by himself or Ms attorney that he appeals from the judgment as required by Acts 1919, p. 86, § 7.</p> <p>2. Habeas corpus <&wkey;H3(9) — Appeal from denial of bail not reviewable without all the evidence.</p> <p>The decision of the trial judge in habeas corpus refusing bail to one accused of murder in the first degree cannot be reversed where the bill of exceptions does not purport to set out all or substantially all of the evidence.</p>

E. Gamble, Judge. The Alabama Machinery & Supply Company brought its action against R. S. Dickson to recover for material furnished and work done in covering a bam belonging to defendant. Defendant interposed pleas of set-off and recoupment claiming damages to tbe barn and its contents because of the manner in which the work was done.

- Appeal from County Court, Morgan County; W. T. Lowe, Judge. Robert Ewing was convicted of violating the prohibition law, and he appeals. It was incumbent to allege that the offense occurred subsequent to February 20, 1919. Section 7347, Code 1907. There is a difference between possession and custody, and temporary custody is not sufficient. 25 S. W. 289. Counsel discuss other assignments, but without further citation of authority.

Action by Ed Ford against the Bullard Investment Company. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Circuit Court, Mobile County; Olaude A. Grayson, Judge.</p> <p>Petition by the State of Alabama, on the relation of Arthur L. McLean, for mandamus to be directed to George E. Stone, as Treasurer of Mobile County, to require him to pay certain warrants issued to said McLean as Road Superintendent of the County of Mobile. From an order denying the writ, the petitioner appeals.</p> <p>The court should have granted the writ, for that Acts 1920, p. 148, is violative of section 45, Const. 1901: First, that it has two separate and distinct subjects, since the word “highway,” if it does not mean public road, must mean city street. 3 May. 960; 89 Ala. 529, 7 South. 666; 108 Ala. 45,18 South. 820, 35 L. R. A. 303; 133 Ala. 472, 32 South. 144, 59 L. R. A. 399, 91 Am. St. Rep. 46; 116 Ala. 51, 23 South. 57; 109 Ala. 66, 19 South. 901; 180 Ala. 499, 61 South. 368; 188 Ala. 620, 65 South. 1006; 189 Ala. 64, 66 South. 597.' Second, the subject is not clearly expressed in the title: 115 Ala. 87, 22 South. 453; 101 Ala. 541, 14 South. 355; 89 Ala. 608, 7 South. 924; 130 Ala. 148, 30 South. 344, 89 Am. St. Rep. 23; 99 Ala. 177, 13 South. 415; 134 Ala. 393, 32 South. 687; 203 Ala. 570, 84 South. 759. At least sections 4 and 6 of the act are unconstitutional. 130 Ala. 148, 30 South. 344, 89 Am. St. Rep: 23. If the act above referred to is valid, it is a general law, and did not repeal Local Acts 1907, p. 727. 108 Ala. 336, 18 South. 816; 203 Ala. 574, 84 South. 816; 143 Al£. 93, 39 South. 366. The board of revenue had the right and power to employ appellant and as he performed the duties lie was entitled to his pay. Local Acts 1907, p. 727; Gen. Acts 1915, p. 573; Loc. Acts 1919, p. 71; ISO Ala. 489, 61 South. 368.</p> <p>Acts 1920, p. 14S, is a general and not a local act. 145 Ala. 132, 40 South. 350. It could therefore repeal the local act without notice by publication. Section 107, Const. 1901. It was not penal, and went into effect at once. Section 7805, Code 1907.</p> <p>Counsel refer to their brief in the case of George E. Stone, as Treasurer, v. State ex rel. S. M. Adams ante, p. 154, S9 South. 304.</p>

<p>Appeal from Circuit Court; Lauderdale County; O. P. Almon, Judge.</p> <p>Hubert Hill was convicted of manufacturing prohibited liquor, and he appealed.</p> <p>The facts on which the opinion is rested sufficiently appear therefrom.</p>

M. Miller, Judge. Eddie McReynolds was convicted,of violating the prohibition law, and he appealed.

<p>1. Criminal law &wkey;>209 — Warrant not supported by oath or affirmation void.</p> <p>Warrant for defendant’s arrest, which was not supported by an oath or affirmation, as required by Const. 1901, § 5, held void.</p> <p>2. Habbas corpus <s==>f 11 (I) — One arrested under void warrant entitled to discharge of custody.</p> <p>Where the warrant for the arrest of a person was void because not supported by an oath or affirmation, as required by Consr. 1901, § 5, the person arrested thereunder was entitled to be discharged from custody.</p>

<p>1. Criminal law <&wkey;8l5(l)— Charge which pretermitted all consideration of venue held erroneous.</p> <p>In prosecution for violation of prohibition law, charge that defendant should be convicted if jury believed beyond a reasonable doubt that defendant on specified date committed specified aet£| held erroneous, in that it pretermitted all consideration of venue.</p> <p>2. Intoxicating liquors t&wkey; 139 — Possession of whisky is unlawful.</p> <p>The possession of whisky is unlawful under Acts 1919, p. 6, making it unlawful to have possession of prohibited liquors notwithstanding section 5 et seq., pp. 8, 10, 15, 17, permitting the possession of pure grain alcohol under certain circumstances.</p> <p>3. Intoxicating liquors c&wkey;224 — The right to possess alcohol found in defendant’s possession is a defense to be proven by defendant.</p> <p>In prosecution for having possession of alcohol, the right "to possess it under Acts 1919, p. 8, § 5 et seq., authorizing the use of pure grain alcohol under certain circumstances and through a prescribed method, is a defense to be proven by the defendant.</p> <p>4. Criminal law ¡&wkey;8!4(l9) — Charge that defendant could not be convicted of possession of liquor found on another’s premises in absence of actuai or constructive connection therewith held properly refused as abstract.</p> <p>In prosecution for having possession of whisky in violation of prohibition laws, charges that defendant could not be convicted if the whisky was found on another’s premises and defendant had had no connection therewith, either actual or constructive, was properly refused, where there was no evidence that the whisky, if found, was found on another’s premises.</p> <p>5. Criminal law <&wkey;395 — Evidence obtained through unlawful search inadmissible.</p> <p>In prosecution for violation of prohibition laws, evidence obtained through an unlawful search is not admissible over timely objection thereto.</p> <p>6. Witnesses &wkey;>245 — 'Whether counsel may examine witness as to matter to which he has already testified, discretionary with court.</p> <p>It was within the discretion of the court as to whether it would permit defendant’s counsel to ask questions of a witness when the same ground had already been gone over and the witness had answered the question without evasion.</p> <p>7. Intoxicating liquors <&wkey;233(2), 238(1)— Testimony that jars with whisky odor were found on roof near defendant’s room admissible, and raised jury question.</p> <p>In prosecution for having possession of whisky, testimony that fruit jars similar to one found in defendant’s room containing whisky, some of which had the odor of the same kind of whisky as that found in defendant’s room, were found on roof of adjoining building near a window of defendant’s room, which opened out onto the roof, held admissible, the jars on roof being in such close proximity to and connected with defendant’s room as to be a part of the locus in quo, and as to make it a question of fact for the jury as to whether or not the jars had'been put on the roof by defendant, or under his direction.</p> <p>8. Criminal law <&wkey;796, 884 — Jury not to be instructed as to punishment at hard labor.</p> <p>In prosecution for violation of prohibition laws, the jury had nothing to do with the-fixing of the punishment at hard labor, and an instruction relative thereto was unnecessary.</p> <p>9. Criminal law <&wkey;866 — Quotient verdict will be set aside.</p> <p>A quotient verdict, when shown by competent evidence, will always be set aside.</p> <p>10. Criminal law <&wkey;957( I) — Jurors cannot impeach own verdicts.</p> <p>Jurors will not be permitted to impeach their own verdicts.</p>

Grayson, Judge. Chris Karackalas was convicted of receiving stolen property, and he appealed. The evidence failed to support the verdict, and motion for new trial should have been granted. Acts 1915, p. 722; 16 Ala. App. 401, 78 South. 317; 203 Ala. 412, 84 South. 272. The court erred in refusing the affirmative charge. 204 Ala. 393, 86 South. 89; 84 South. 396.

P. Almon, Judge. Tom Reed was convicted of violating the prohibition law, and he appeals. Counsel discuss the errors -assigned, but without citation of authority.

I. Jones, Judge. * Action by Wood Jones against P. B. Jar-man, for the, penalty for issuing improperly a marriage license. Judgment for defendant, and plaintiff appeals. The correspondence submitted showed notice to the appellant of the various steps taken in the case from the clerks of the circuit court and the Court of Appeals, and the transcript showed the filing on August 30, 1920, with motion to dismiss filed February 10, 1921.

<p>Criminal law &wkey;>561 (2) — Instruction not requiring belief beyond a reasonable doubt held erroneous.</p> <p>In a prosecution for distilling prohibited liquors, a charge to convict if the jury believe the evidence requires reversal, since to authorize conviction the jury must be convinced from the evidence of the defendant’s guilt beyond a reasonable doubt.</p>

<p>Appeal from Circuit Court, Jefferson County; Wm. E. Fort, Judge.</p> <p>James L. Martin was convicted of forgery, and he appeals.</p>

B. Foster, Judge. George Nichols was convicted of manufacturing prohibited liquors, and he appealed.

A. Graham, Judge. - Petition by Leonard Carter, by habeas corpus, to recover the custody of a minor child, directed to Etta Carter, the mother. From an order denying the petition, petitioner appeals. The father is the head of the family and entitled to the possession of the children. 31 Ala. 425; 134 Ala. 317, 32 South. 659, 92 Am. St. Rep. 35. The primary consideration is the best interest of the child. 166 Ala. 351, 52 South. 310; 2 Ala. 4pp. 461, 56 South. 5S9; 4 Ala.

A. Hammett, Judge. Petition by Lorrie Rice for writ of habeas corpus. From a judgment denying the petition, he appeals. The defendant was not a fugitive from justice, and was entitled to show that he was not. '73 Ala. 503, 49 Am. Rep. 63; 142 Ala. 72, 39 South. 55; 144 Ala. 140, 39 South. 249; 152 Ala. .68, 44 South. 685; 174 'Ala. 1, 56 South. 735; 17 Ala. App. 405, 85 South. 590; 16 Ala. App. 397, 78 South. 313; 19 Cyc.. 94.

P. Heflin, Judge. Ered Dill, Jr., was convicted of seduction and he appealed. While the ease of Herbert v. State, 16 Ala. App. 213, 77 South. 83, holds that the evidence objected to was admissible, this case as to this was overruled by the Supreme Court (201 Ala. 532, 78 South. 886), and the court erred in admitting the testimony (137 Ala('59, 34 South. 840; 100 Ala. 130, 14 South. 472 ; 86 Ala. 54, 5 South. 419; 109 Ala. 45, 19 South. 491; 68 Ala. 599).

A. Steele, Judge. Habeas Corpus proceedings by Arthur Snyder, to procure his discharge from custody on sentence for a violation of the prohibition! laws. From a judgment denying the discharge, petitioner appeals. At the time additional sentence was imposed, the court was without power to make-it. -79 South. 316; 7 May. 826; section 124, Const. 1901; 53 Mich. '260, 18 N. W. 849; 61 Mich. 110, 27 N. W. 869.

<p>Appeal from Circuit Court, Lauderdale County; C. P. Almon, Judge.</p> <p>Assumpsit by J. W. Hatcher against J. B. Thomas. Judgment for the plaintiff, and the defendant appeals.</p> <p>Counsel discuss the appeal on the merits, but in view of the opinion it is not deemed necessary to here set them out.</p>

<p>Appeal from Circuit Court, Covington County; A. B. Foster, Judge.</p> <p>Action by the People’s Bank of Red Level against the First National Bank of Andalusia in assumpsit. Judgment for the plaintiff, and defendant appeals.</p> <p>The court erred in the judgment rendered. Section 5017, Code 1907; 63 Ala. 519; 3 Burrows, 1354; Jojjce, Commercial Paper) § 99; 7 C. J. 695; 21* Idaho, 258, 121 Pac. 544, 39 L. R. A. (N. S.) 1107, Ann. Cas. 1913D, 495; 110 Minn. 263, 125 N. W. 119, 26 L. R. A. (N. S.) 849, 136 Am. St. Rep. 496; 66 W. Va. 545, 66 S. E. 761, 36 L. R. A. (N. S.) 605; 2 Wall. 121, 17 L. Ed. 857; 72 Ala. 585; 79 Ala. 617; 79 Ala. 586; 46 N. X. 77, 7 Am. Rep. 310; 88 Tenn. 299, 12 S. W. 716, 6 L. R. A. 724, 17 Am. St. Rep. 890; 10 Wheat. 333, 6 L. Ed. 334.</p> <p>The court rendered the proper verdict and the only verdict it could have rendered. 202 Ala. 167, 79 South. 651; 203 Ala. 179, 82 South. 429; 7'C. J. 695; 110 Minn. 263, 125 N. W. 119, 26 L. R. A. (N. S.) 849, 136 Am. St. Rep'496; 159 Ky. 141, 166 S. W. 986, L. R. A. 1915A, 77.</p>

Greene, Judge. Action by the State of Alabama, on the relation of Harwell G. Davis, its Attorney General, against the Crane Company, to recover for a deficient franchise tax. From a judgment sustaining demurrers to the complaint, the plaintiff took a nonsuit and' appealed.

Martin, Judge. Noah Sweat was convicted of manufacturing prohibited liquors, and he appeals.

L. Sowell, Judge. George Bryan was convicted of having carnal knowledge of a girl over 12 and under 16 years of age, or abusing in an attempt to have carnal knowledge, and he appeals. The following charges were refused to the defendant: (1) Affirmative charge. (2) Affirmative charges to count 1. (3) Affirmative charges to count 2. (5) You cannot convict the defendant upon the uncorroborated testimony of the state’s witness, Alberta Pranks.

<p>Homicide <&wkey;2l5(4), 216 — Evidence as to conclusion held improperly‘admitted, where no predicate for dying declaration.</p> <p>In prosecution for murder, admission of the testimony of deceased’s wife that shortly before his death deceased had said that the accused had robbed him was erroneous, where no predicate had been laid for a dying declaration, and as being a conclusion and immaterial.</p>

M. Miller, Judge. . Alfred S. Corcoran was convicted of assault and battery with a weapon, and he appealed. The facts upon which the opinion is rested, sufficiently appear therefrom, with the exception that at the conclusion of the state’s evidence the defendant moved to exclude all the evidence because it did not sustain the charge.

B. Foster, Judge. Preston Frazier was convicted of violating the prohibition law, and he appealed. Counsel insist that the affirmative charge for the defendant should have been given, and that therefore the court erred in giving the affirmative charge for the plaintiff, but he cites no authority in support thereof.

<p>Appeal from Circuit Court, Etowah County; W. J. Martin, Judge.</p> <p>Ship Bagley was convicted of violating the prohibition law, and he appeals.</p> <p>The judgment showed that on the 10th day of September, 1920, there was a verdict of guilty and a fine of $500, and on September 11th the court sentenced the defendant for the offense to hard labor for the county for four months, but allowed the defendant to confess for the fine and costs. Tire evidence tended to show that one Ratlidge and another person went to the home of Arthur Snyder and bought from the defendant each a half pint of whisky. While Ben Miller was on the stand, he was asked by the solicitor if he was not • drunk or drinking at the time he said that Ratlidge made the statement that he had never bought a drop of whisky from the defendant in his life. Then follows what appears from the opinion.</p> <p>The defendant was entitled to the affirmative charge. 64 South. 158. The court was in error in permitting the state to impeach its own witness. 4 Ala. App. 112, 58 South. 788; 156 Ala. 500, 47 South. 172. The court was in error in adding the additional punishment. Acts 1915, p. 2; section 7.630, Code 1907.</p>

<p>Aiipeal from Circuit Oourt, Jefferson County; C. B. Smith, Judge.</p> <p>John Brown, a life convict), was injured in the mines of the Montevallo Mining Company while being worked therein as a conviet, and brought his suit for damages for the injuries. When the case was set for trial, his attorneys brought habeas corpus ad testificandum, and from an order directed to the warden genera] to produce John Brown to testify in his case, the State appealed, the defendant in the damage suit joining in the appeal.</p> <p>Tlio Legislature has the power to prescribe the method to be pursued in securing the evidence of convicts. 91 Mo. 228, 4 S. W. 91, 60 Am. Rep. 250; 82 Cal. 456, 22 Pac. 1121. The statute clearly indicates that the method provided by the statute excludes every other method. Sections 6550-6559 and 7890, Code 1907. 36 Cyc. 1122; 25 R. C. L. 981; 145 Ala. 202, 40 South. 108; 55 Ala. 198; The word “may,” as used in section 6559, means “must.” 146 Ala. 449, 42 South. 400; 28 Ala. 28; 9 Port. 390, 33 Am. Dee. 320; 9 Ala. 395, 189 Ala. 395, 66 South. 686.</p> <p>There is ample authority for the issuance of the writ by the circuit court. 166 Fed. 71, 91 C. C. A. 657, Ann. Cas. 1915D, 1025; 100 Ky. 143, 37 S. W. 594; 129 Cal. 258, 61 Pae. 961; 14 Misc. Rep. 31, 35 N. Y. Supp. 237. 72 Ga. 673; 140 Ky. 634, 131 S. W. 521; 4 Wig. 199. There was no power to procure depositions at common law. 15 Ala. 832; 102 N. Y. 597, 8 N. E. 214. All statutes are construed as not infringing upon the common law further than it expressed. 72 Ala. 323; 67 Ala. 237; 182 Ala. 419, 62 South. 712, 47 L. R. A. (N. S.) 607 The remedy by statute is therefore cumulative. 187 111. 480, 58 N. E. 448; 26 Mont. 140, 66 Pac. 759; 161 Pa. 473, 29 Atl. 103, 24 L. R. A. 247, 41 Am. St. Rep. 894; Lewis’ Sutherland, Statutory Construction, §§ 453-455 and 720. John Brown can maintain an action and testify in his own behalf. Section 4008, Code 1907; sections 13 and 19, Const. '1901; 83 Ga. 549, 10 S. E. 435; 23 Pla. 478, 2 South. 851; 18 R. I. 590, 30 Atl. 470, 26 L. R. A. 232 ; 7 Paige, 150; 1 N. J. Law, 315.</p>

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge. *</p> <p>Action by J. Lewis Cobbs, as Treasurer of the City of Montgomery, against the Home. Insurance Company of New York. There was judgment sustaining demurrers to the complaint, and, the plaintiff declining to plead further, judgment was rendered against him, and he appealed.</p> <p>Plaintiff sued as the treasurer of the city of Montgomery for the use and benefit of the board of trustees of the firemen’s pension and relief fund. The suit is brought under the provisions of the Acts of 1915, p. 898, as amended by Acts 1919, p. 111. The defendant demurred setting up that the act as amended was void and of no effect because violative of section 68, section 94, section 98, and sections 106, 107, 108, and 110 of the Constitution of 1901, and also violative of sections 23, 232, and 217, Constitution 1901, and also violative of the Constitution of the United States.</p> <p>Most of the demurrers are general demurrers. Section 5340, Code 1907. The act is not violative of any of the sections of the Constitution referred to. 143 Ala. 617, 39 South. 361; 145 Ala. 132, 40 South. 350; 44 Cent. Dig. § 344; 18 Dec. Dig. § 263. The act is not a special or local act. 145 Ala. 128, 40 South. 1010; 142 Ala. 98, 38 South. 679; 77 Pa. 338. Section 232, Constitution 1901, has no application to this cdse. 192 U. S. 74, 24 Sup. Ct. 181, 48 L. Ed. 346.</p> <p>Both acts are violative of the section 68, Const. 1901, and section 94. 144 Mo. 283, 45 S. W. 1099, 66 Am. St. Rep. 420; 171 N. X. 263, 63 N. E. 1107, 89 Am. St. Rep.. 810. The acts also violate the provisions of sections 97 and 98, Const. 1901. 145 Ky. 242, 140 S. W. 197, 36 L. R. A. (N. S.) 881, Ann. Cas. 1913B, 1078; 163 Ala. 425, 50 South. 929; 13 Ala. App. 212, 68 South. 706; 193 Ala. 677, 69 South. 1018; 113 Ala. 31, 21 South. 378; 11 Ala. App. 578, 66 South. 847; 37 Wash. 657, 80 Pac. 79, 12 L. R. A. (N. S.) 261; (Sup.) 4 N. ,Y. Supp. 355. The act is a local or a special act, and therefore violative of the Constitution. 16 Ala. App. 145, 75 South. 821; 204 Ala. 38, 85 South. 465. The act violates section 23 of the Constitution. 117 Ala. 31, 23 South. 697; 135 Ind. 33, 34 N. E. 565, 20 L. R. A. 827, 41 Am. St. Rep. 410; 78 S. C. 445, 59 South. 148, 13 L. R. A. (N. S.) 1147, 125 Am. St. Rep. 818.</p>

A. Pearce, Judge. Will Clark was convicted of murder in the second degree, and lie appealed. The following are charges refused: B. The court charges the jury that, if you believe the evidence in this case, the defendant was free from fault, in bringing on the difficulty.

L. Brewer, Judge. Clem Murphy was convicted of distilling prohibited liquors, and he appeals. The defendant was entitled to the affirmative charge. 5 Words and Phrases, 4181; 159 Ala. 71, 48 South. 864, 133 Am. St. Rep. 20; 40 Minn. 55, 41 N. W. 299; 16 Ala. App. 240, 77 South. 78; Acts 1919, p. 6. The case is practically on all fours with the case of W. J. Stewart v. State, ante, p. 114, 90 South. 49, and should be affirmed on the authority of that case.

S. Williams, Judge. .Herbert Clark was convicted of violating the prohibition laws, and he appealed. The indictment consisted of five counts, all charging the manufacture of prohibited liquors or having in possession a still, apparatus or appliances for manufacturing prohibited liquors.

J. Martin, Judge. Myrtle Williams was convicted of violating the prohibition law, and she appeals. The witnesses for the state testified that they purchased some whisky in Alabama City upon a certain Saturday night, but did not know whether it was a man or woman who sold it to them, and did not know whose Rouse it was at which they got it.

J. Martin, Judge. Bob Campbell, alias Bob Cameron, was indicted. and convicted of violating the prohibition law, in that he manufactured prohibited liquor, and he appeals. The following charges were refused the defendant: (1) The presumption of good character and the presumption of innocence are both matters of evidence for the consideration of the jury in favor of the defendant, until the jury is satisfied of the guilt of the defendant beyond all reasonable doubt.

<p>Richard, alias Dick, Matthews, was indicted for burglary and grand larceny, convicted of grand larceny, and be appeals.</p> <p>The following is the indictment:</p> <p>“(1) The grand jury of said county charge that before the finding of this indictment that Richard Matthews, alias Dick Matthews, and Will Avery with intent to steal broke into and entered a railroad car upon or connected with the Southern Railway Company, a corporation, in the state of Alabama, and in Colbert comity, in which goods, merchandise, and overalls, valuable things, were kept for use, deposit, or transportation as freight.</p> <p>“(2) Grand jury of said county charge that before the finding of this indictment Richard Matthews, alias Dick Matthews, and Will Avery broke into and entered a railroad car upon or connected with the Southern Railway Company, a corporation, in which goods and merchandise, valuable things, were kept for use, deposit, or transportation as freight.</p> <p>í‘(3) Grand jury of said county further charge that before the finding of this indictment Richard Matthews, alias Dick Matthews, and Will Avery feloniously took and carried away from a railroad ear of the Southern Railway Company, a corporation, which car was used for transportation of freight, about 50 dozen pairs of overalls of the value of $1,500, the personal property of the Southern Railway Company, a corporation.</p> <p>“(4) The grand jury of said county further charge that before the finding of this indictment that Richard Matthews, alias Dick Matthews, and Will Avery feloniously took and carried away from a railroad car of the Southern Railway Company, a corporation, about 50 dozen pairs of overalls of the value of $1,500 which said property was in the possession of the Southern Railway Company, a corporation, and being transported by said Southern Railway Company, a corporation, as freight, against the peace and dignity of the state of Alabama.”</p> <p>The following are the charges refused to the defendant:</p> <p>(3) Affirmative charge as to the third count.</p> <p>(4) Affirmative charge as to the fourth count.</p> <p>“(5) I charge you, gentlemen, that the fact that Dick Matthews, the defendant, was accused of and was arrested for breaking into and stealing from the car testified about, and the fact that the grand jury found an indictment against him in this case, are not facts or circumstances to which you are allowed to look in this case, in considering the case, and I charge you that the indictment is neither a circumstance in law or fact showing or tending to show that the defendant is guilty of the charge, and I further charge you that Dick Matthews, the defendant, is presumed by the law of Alabama not to have broken into or stole from the car, and that presumption goes with him to your verdict unless the evidence convinces you beyond a reasonable doubt and to a moral certainty of the truth of every element necessary to show guilt.”</p> <p>Counsel discuss the various assignments of error, but without citation of authority.</p> <p>Counsel discuss the various assignments of error, but without citation of authority.</p>

<p>1. Criminal law (@=>763, 764(3, 4)^Count as to which there was no evidence properly eliminated.</p> <p>Where there was no evidence to sustain a count charging defendant with distilling, making, or manufacturing liquors, etc., the court properly charged the jury to that effect, thereby eliminating such count from the case.</p> <p>2. Indictment and information ¡@=>87(8) — Indictment for statutory offense insufficient when it does not show year when committed.</p> <p>A count, charging that defendant manufactured, sold, gave away, or had in his possession a still, etc., to be used for manufacturing prohibited liquors or beverages was void for uncertainty, where it alleged merely that the offense was committed subsequent to the 30th day of September without naming the year; the offense being one unknown to the law prior to the passage of Acts 1919, p. 1086.</p> <p>3. Statutes (@=>255 — Act not operative for 60 days after approval in absence of special provision.</p> <p>Under Code 1907, § 7805, though Acts 1919, p. 1086, relative to the manufacture,' sale, or possession of any appliance for manufacturing prohibited liquors or beverages was approved September 30, 1919, it did not become operative until 60 days thereafter; there being no special provision to the contrary in the act itself.</p> <p>4. Indictment and iYiformation (@=>87(8) — Indictment charging offense as committed subsequent to date prior to which act took effect insufficient.</p> <p>An indictment, charging that subsequent to September 30 defendant manufactured, sold, gave away, or had in his possession a still, etc., to be used for manufacturing liquors, etc., would still have been void for uncertainty, even, though it had not omitted the year, 1919, as it covered a period of 60 days during which Acts 1919, p. 1086, on which it was based, was not in effect.</p>

Kyle, Judge. Oliver Thornton was indicted for assault with intent to murder, convicted of assault and battery with a weapon, and he appeals. It was shown by the testimony that the two parties, Turner, the man assaulted, and Thornton, the defendant, had had two difficulties, i>rioi; to the one upon which this prosecution is based, the first difficulty being at the L. & N. shops, about three months before the present trouble.

A. Pearce, Judge. Action by G. A. Hammond against Walker D. Hines, as Director General of Railroads, operating the Central of Georgia Railroad Company, for damages for injury to a hog. Judgment for plaintiff, and defendant appeals. The cause should be reversed because it appears that the accident did not happen in the month alleged. 158 Ala. 622, 48 South. 377; 125 Ala. 544, 27 South. 922.

Application by the State of Alabama, on tbe relation of Clarence A. Strain, for mandamus to compel George'E. Stone; as Treasurer of Mobile County, to pay him certain warrants issued to Mm, as court reporter. From a judgment granting the writ, respondent appeals.

S. Williams, Judge. Action by W. A. Blackman against J. R. Dowling, as treasurer of tlie city bf Ozark, to recover the sum of $3, paid under duress as a special school tax of 30 cents on each $100 'worth of property owned by the plaintiff during the years of 1919 and 1920, which property was situated within two miles of the courthouse of the city of Ozark, but outside of the corporate limits of Ozark. From a judgment for the defendant, plaintiff appeals.

<p>Appeal from Circuit Court, Lauderdale County; C. P. Almon, Judge.</p> <p>Robert Bowling was convicted of murder in the second degree and appeals.</p> <p>Defendant is charged with the killing of one Jim Contoroupis, by cutting him with a knife.</p> <p>The following are the questions propounded to the witness Robinson:</p> <p>“Did you hear this man curse anybody or threaten to do anything to anybody?” and also “Did you see Mr. Bowling at that time? Did you see a man standing in the Plaza Restaurant, at the back door?”</p> <p>The witness had testified previously that he saw a man, but did not know who the man was, but that he saw a man with a rock in each hand and the man was a black-haired, dark-eyed man, and he was standing at the corner of the Darby-King hardware store. The questions to the witness Taylor had reference to a few days before the difficulty occurred, and sought to elicit the fact that the dead man fiad some rocks in his hand, and was talking about the defendant and making threats.</p> <p>The following charges are referred to in the opinion as being refused to the defendant:</p> <p>(11) It is not necessary under the evidence in this case that the defendant should have been actually in danger of death or of great bodily harm at the time he cut the defendant in order for him to have been justified in cutting him, .he had the right to act upon the reasonable appearance of things at the time, taken in connection with the light of all the evidence, and he had the right to interpret the conduct of the deceased in the light of any threats that the evidence shows the deceased had made against the defendant, if the evidence shows that any such threats were made. If the circumstances attending the killing were such as to justify any reasonable man in the belief that he was in danger of death or great bodily harm, and he honestly believed such to be the case, then he had the right to cut the deceased in his own defense, although as a matter of fact, he was in no actual danger, and if the jury believe that the defendant acted under such conditions and such circumstances as above set out the jury should find the defendant not guilty.</p> <p>(28) The law is not vindicated by the conviction of the defendant, unless you believe the defendant is guilty beyond a reasonable doubt and to a moral certainty.</p> <p>(D) The conviction of the defendant, if not proven guilty beyond a reasonable doubt, does not make for the enforcement of the law.</p> <p>The court erred in declining to admit the testimony relative to the pistols of the two parties and where they were left. 138 Ala. 57, 34 South. 993; 16 C. J. 572-576. Declarations just prior to the offense are admissible. 11 Ala. App. 8, 65 South. 422; 16 C. J. 577-579 ; 87 Ala. 211, 6 South. 41, 13 Am. St. Rep. 23; 156 Ala. 577, 47 South. 109; 124 Ala. 14, 26 South. 979; 81 Ala. 2, 1 South. 1791, 60 Am. Rep. 133; 83 Ala. 287, 3 South. 671; 96 Ala. 24, 11 South. 255; 14 Ala. App. 35, 70 South. 979 ; 55 Fla. 77, 46 South. 297; 106 Ala. 32, 17 South. 456. The defendant should have been permitted to show threats made by the deceased. 141 Ala. 51, 37 South. 359; 130 Ala. 35, 30 South. 429; 140 Ala. 1, 37 South. 90; 129 Ala. 71, 30 South. 73. The physical condition and size of the participants was admissible. 146 Ala. 51, 41 South. 621; 111 Ala. 23, 20 South. 632, 56 Am. St. Rep. 17. Counsel discuss other assignments of error, but without further citation of authority.</p>

<p>1. Waters and water courses <§=^203(5) — City turning water into main belonging to consumer can recover for leakage therefrom.</p> <p>Where the city at a consumer’s request turned the water into a main belonging to the consumer to give fire protection to the latter under a contract that the consumer was to pay a fixed turning charge and a stated amount for all water used, the city could recover from the consumer for water which escaped from a leak in the main.</p> <p>2. Waters and water courses <&wkey;>203(l5) — City ordinance regulating use of water held admissible in action for charges.</p> <p>In an action by a city to recover from a consumer for water turned into the consumer’s main and which leaked therefrom, ordinances adopted by the city under its power to regulate the use of meters and the prices charged for water are admissible.</p> <p>3. Appeal and error <&wkey;>l052(8) — Admission of ordinances harmless where plaintiff could recover without them.</p> <p>Whether the city was entitled, under its contract with the consumer, to a directed verdict allowing recovery for water which leaked out from the consumer’s main, the admission in evidence of city ordinances regulating the use of meters and the charges for water, if erroneous, was harmless.</p>

I. Jones, Judge. Pink O. Lowery was convicted of manufacturing prohibited liquors, and from a refusal to grant his motion for new trial he appeals. The defendant had a right to a motion for new trial and to appeal therefrom. Section 2846, Code 1907; Gen. Acts 1915, p. 722. The plea of guilty was obtained under a misapprehension, and constituted a fraud in law, and appeal is his only remedy. 15 Ala. App. 258, 73 South. 137; 23 Cyc. 889; 108 Ala. 258, 19 South. 529, 54 Am. Sf.

W. Harralson, Judge. Walter Couch was convicted of violating the prohibition law, and appeals.

Merrill, Judge. *. Reedy James was convicted of violating the prohibition law, and he appeals. Counsel rely upon the following authorities to show error in the action of the court relative to the pleadings, the reception of and objection to evidence, and the court’s action on the charges. Section 4445, Code 1S86; Acts 1909, p. 315; 89 Ala. 40, 8 South. 78; 154 Ala. 44, 45 South. 666; 152 Ala. 1, 44 South. 587; 172 Ala. 391, 56 South. 232; 8 Ala. App. 374, 62 South. 318.

<p>Appeal from Circuit Court, Limestone County; O. Kyle, Judge.</p> <p>Ozell Scott' was indicted for murder in the first degree, for killing Albert Owens, convicted of murder in the second degree, and she appeals.</p> <p>The following charges were refused to the defendant:</p> <p>(3) If the jury find from the evidence that the conduct of the deceased was such as to reasonably lead the defendant to believe that the deceased was about to inflict some great bodily harm on her person, and that the defendant, acting on such reasonable belief, fired the shot at the deceased, and killed him, then the jury should acquit.</p> <p>(4) Definition of the various degrees included in the charge of murder in the first degree, as defined by the statutes, with this addition: “If the killing was not done, as shown by all the evidence in this case, under such circumstances as to make it murder in the first degree, not murder in the second degree, nor manslaughter in the first degree, as herein defined, then the killing of deceased by defendant was not unlawful, and you cannot convict her of any degree of homicide.”</p> <p>A. If after looking into all the evidence in this case, your minds are left in such state of uncertainty that you cannot say beyond a reasonable doubt whether defendant acted upon the well-grounded and reasonable belief that it was necessary to shoot and take the life of Albert Owen to save herself from great bodily harm, or from death, or that she shot before such impending necessity arose, then this is such a doubt as will entitle the defendant to an acquittal, and you should so find by your verdict.</p> <p>E. If the defendant was free from fault in bringing on the difficulty, and honestly believed at the time she shot the deceased that she was in danger of an assault of a serious nature being inflicted upon her by the deceased, then, under the law, she had the right to shoot, and the jury should acquit.</p> <p>The other facts sufficiently appear from the opinion of the court.</p> <p>The court erred in admitting the evidence of the witnesses Lane and French. 61 Ala. 89; 186 Ala. 5, 65 South. 42; 167 Ala. 20, 52 South. 467. Charges 3 and A should have been given. 26 Ala. 31, 62 Am. Dec. 711; 25 Ala. 30. The other charges should have been given. 96 Ala. 32, 11 South. 478; 92 Ala. 15, 9 South. 407, 25 Am. St. Bep. 17; 110 Ala. 24, 20 South. 119; 114 Ala. 6, 22 South. 112: 176 Ala. 368, 58 South. 266.</p> <p>There was no error in the admission of the evidence complained of. 146 Ala. 51, 41 South. 621; 117 Ala. 36, 23 South. 688. Counsel discuss the assignments of error, but without citation of authority.</p>

A. Steele, Judge. Action by W. Hopper against J. E. Nix. Judgment for plaintiff, and defendant appeals. The Royster Guano Company mortgage was not covered by or included in the blanket clause, and was improperly admitted in evidence. 68 Ala. 389; 92 Ala. 508, 9 South. 315; 82 Ala. 183, 1 South. '77; 74 Ala. 285; 27 Cyc. 1073. The blanket clause covered and included the Royster mortgage. 97 Ala. 615,12 South. 385.

Coum ty; Robert C. Brickell, Judge. John Townsend was convicted of manslaughter in the first degree, and he appeals.

Kyle, Judge. Jake and Ed Morell were indicted for an assault and attempt to murder. The latter was convicted as charged, and the former was convicted of assault and battery, and they appealed. The facts on which the opinion is rested sufficiently appear therefrom. The court erred in its action on the evidence as to the school trouble or the threats there made. Wigmore on Ev. §§ 34, 89, and 238; Jones on E.v. § 171; 35 Ala. 176; 22 Ala. 796; 13 Ala.

W. Harralson, Judge. Action by R. P. Vest against the T. R. Farrow Mercantile Company, for damages for failure to enter satisfaction on the margin of a mortgage record. Judgment for plaintiff, and defendant appeals. The court erred in giving the affirmative charge for the plaintiff and refusing a like charge for the defendant. 2 May. 561; 5 May. 150; 6 May. 104.

J. R. Warren was convicted of manufacturing prohibited liquors, and he appealed. Reversed and remanded. There -was no evidence to'sustain a conviction. 16 Ala. App. 152, 75 South. 828; 85 South. 867; 17 Ala. App. 401, 85 South. 835. The court erred in asking the question it asked of the witness. 16 Ala. App. 38, 75 South. 183; 89 Ala. 34, 8 South. 22, 18 Am. St. Rep. 87; 163 Ala. 348, 50 South. 1008; 139 Ala. 125, 35 South. 995; 87 Ala. 65, 6 South. 378.

E. Fort, Judge. Petition by Ollie Barrett, alias Rose, for habeas corpus. From judgment denying the writ, petitioner appeals.

<p>Taxation'©=>2l9 — Credits arising out of conditional sales contracts are exempt from taxation, as “solvent credits.”</p> <p>Under Acts 1919, p. 283, § 2, exempting “solvent credits” from taxation, credits arising out of conditional sales of goods, title to which is retained by the seller as security for pay- ' ment, are exempt; the purchasers being the owners of the property, subject only to the seller’s option to assert his reserve title.</p>

<p>Criminal law ©=>789(4) — Instruction held not erroneous as failing to require proof beyond reasonable doubt.</p> <p>In prosecution for having intoxicating liquors in possession, an instruction, “If he did have, and you are satisfied beyond a reasonable doubt of that fact, it is your conviction and judgment, based upon the testimony in the case, that he did have such spirituous or alcoholic liquors on that occasion in Ms possession, in that event your verdict would be guilty,” iwlrf not erroneous as authorizing conviction without proof of guilt beyond reasonable doubt.</p>

<p>1. Criminal law <&wkey;l 144(8)— Court presumed ■to have selected impartial jury.</p> <p>It is the duty of the trial judge to see that defendant is tried before a fair and impartial jury, and it will be presumed he performed this duty, unless it clearly appears to the contrary.</p> <p>2. Criminal law &wkey;>l09I(7) — Bill of exceptions to exclusion of questions to jurors held not to show error.</p> <p>A bill of exceptions to the refusal of the trial judge to question prospective jurors as to their relationship with those who defendant charged were in a conspiracy to convict him does not show error, where it does not show 'the expected answer of the jurors, nor that in fact any of them were related to the witnesses.</p> <p>3. Criminal law &wkey;>695(5) — Objection that question was leading waives other objections.</p> <p>Where objection was made to a question on the specific ground that it was leading, all other grounds of objections were waived.</p> <p>4. Witnesses <&wkey;>240(2) — Ruling on objection question was leading is within court’s discretion.</p> <p>The overruling of an objection that a question whether any of witness’ hogs that were marked were stolen because it was leading was within the trial court’s discretion.</p> <p>On Rehearing.</p> <p>5. Criminal law i&wkey;1159(5) — Appellate court only determines whether proof of corpus delicti is sufficient for jury.</p> <p>The appellate court, in ruling on the objection that "the record fails to show proof of the corpus delicti, does not determine whether there was enough proof to establish it, but whether there was sufficient proof to go to the jury upon that question and to sustain a verdict, the jury being the sole judges of what weight will be given the evidence.</p> <p>6. Larceny <&wkey;68(I) — Receiving stolen goods <&wkey;9(l) — Evidence of corpus delicti held sufficient to go to jury.</p> <p>Evidence that hogs peculiarly marked were stolen from prosecuting witness, that defendant was seen leaving the place in company with a man who was carrying a dead animal, and that on that night a freshly killed hog bearing the mark of prosecuting witness was found in defendant’s possession, and that he explained his possession by claiming he purchased it from a stranger, held sufficient proof of corpus delicti to warrant submitting to the jury counts charging both larceny and receiving stolen goods.</p>

I. Jones, Judge. John Ahrahams was convicted of manufacturing prohibited liquors, and he appeals. The indictment is as follows; Before the finding of this indictment John Abrahams distilled, made, or manufactured alcoholic, spirituous, malted, or mixed liquors or beverages, since the 25th day of January, 1919, against the peace and dignity, etc. The indictment will not support a conviction. 17 Ala. App. 464, 86 South. 172; 17 Ala. App. 486, 86 South. 174.

Action by the State of Alabama, on the relation of J. Q. Smith, its Attorney General, against the Elba Bank & Trust Company, to recover the corporation tax for certain years. Judgment for the defendant, on demurrer, and the plaintiff appeals. The acts of the Legislature (Acts 1911, p. 170, and Acts 1915, p. 397) are void and unconstitutional, in so far as the attempts to exempt banks from the payment of franchise.

<p>Appeal from Circuit Court, .Butler County; A. E. Gamble, Judge.</p> <p>Action by the State of Alabama against the Pea River Power Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Circuit Court, Clay County; W. L. Longshore, Judge.</p> <p>Harve Hanners was convicted of manufacturing prohibited liquors, and he appeals.</p> <p>The following authorities clearly demonstrate that the court was in error in its rulings on the testimony. 146 Ala. 55, 41 South. 621; 106 Ala. 13, 17 South. 333; 4 Ala. App. 11, 58 South. 675 ; 205 Ala. 256, 87 South. 330; Elliott on Evidence, §§ 144r-147; 4 Ala. App. 42, 58 South. 996 ; 183 Ala. 74, 63 South. 8; 6 Ala. App. 600, 60 South. 499; 97 Ala. 215, 12 South. 176; 103 Ala. 1, 15 South. 891; 79 Ala. 215; 94 Ala. 14, 10 South. 665; 94 Ala. 76, 10 South. 426. '</p>

<p>I. Criminal law <§=^531 (3) — Evidence held to constitute a proper predicate for admission of a confession.</p> <p>Where it was shown that the only one present with accused was a witness who made</p> <p>no threats, nor offered any inducement or reward, nor told him it would be better for him to make any statement, proper predicate was laid for the admission of a confession.</p> <p>2. Criminal Law <@^>400(9) — Parol evidence as to existence of memorandum held admissible.</p> <p>Where witness testified that she knew the age of a person because her son had a child die the same year the person in question was born, and’ that her son wrote the date of the death on a piece of paper, which was not offered in evidence, the testimony was admissible without accounting for the paper, since it was as to the fact of making the writing, and not as to the contents thereof.</p> <p>3. Criminal law <§=>! 170(1)— Exclusion of evidence as to how much property husband of witness left her and whether she had any at time of trial harmless.</p> <p>The exclusion of evidence as to how much property a witness’ husband had left her, and whether she had any property at time of trial, was not prejudicial error; the matter being immaterial.</p>

T. Lowe, Judge. P. E. Dettra was convicted of having in possession for sale, and of selling, prohibited liquors, and he appeals. The statute u'nder which the conviction is had is void, under sections 35 and 36, Const. 1901, and contrary to the due process of law provision of the Constitution of the United States.

A. Pearce, Judge. Morgan Jackson was convicted of grand larceny, and he appeals.

K. McMorris, Judge. Luther Driver and Enoch Mims were convicted of grand larceny, and they appealed. The defendant was not guilty of grand! larceny under the facts ,of this case, and the court was in error in its oral charge. Section 7324, Code 1907 ; 39 Ala. 680; 99 Ala. 143, 13 South. 566; 201 Ala. 388, 78 South. 450; 193 Ala. 456, 69 South. 545; 186 Ala. 569, 64 South. 960; 70 Ala. 8, 45 Am. Rep. 67. There was no variance. Section 7147, Code 1907; 16 Ala.

A. Pearce, Judge. Hint Lewis was convicted of felonious fornication, and he appealed. Charge 1, refused to the defendant, is as follows; If the jury is not satisfied that the defendant had illicit intercourse With Bess Adams, with the agreement that they would continue such intercourse, then they must acquit the defendant. The charges requested should have been given. 104 Ala. 56, 16 South. 7; 10 Ala.

Jones, Judge. Petition by the State of Alabama, on tbe relation of William Chandler, as sheriff, for mandamus to be directed to H. E. Lee, as State Auditor, requiring him as such officer to audit and issue a warrant to cover feed hill for prisoners for the month of April, 1921. From a decree denying the writ, complainant appeals.

<p>1. Corporations <S&wkey;5l4(l) — Plea of nul tiel corporation to an amended complaint held not good as against demurrers.</p> <p>Where to meet the demand of defendant’s demurrer, a complaint was amended by adding “a corporation” after plaintiff’s name, and to-the amended complaint defendant filed a verified plea, seeking to conform to Code 1907, § 3969, denying that plaintiff was a corporation, it was held, that it was necessary .that the-facts pleaded should be in time corresponding' to that when the action was brought, and that the plea was not good as against demurrers on the ground that it did not aver that plaintiff was not a eorpordtion at the time suit was commenced and did not state sufficient facts to' constitute a plea of nul tiel corporation.</p> <p>2. Pleading 4&wkey;8(2)— Plea, denying plaintiff legally authorized to maintain suit, a conclusion, demurrable. -</p> <p>In an action for goods sold, a plea denying that plaintiff was legally authorized under the state’s laws to maintain the suit was a conclusion and subject to demurrer.</p> <p>3. Pleading <&wkey;194(4) — Sustaining demurrers to pleas on matter admissible under general issue not error.</p> <p>In an action for goods sold, where evidence that the debt was that of another than defendant, which defendant had not agreed in writing to pay, was admissible nndor the general issue. sustaining demurrers to pleas setting up such defense was not error.</p>

L. Longshore, Judge. A. A. Thomas was convicted of murder in the second degree, and he appeals. Counsel discuss the evidence, but without citation' of authority. ¡As to remarks of counsel being improper and highly prejudicial, he cites the following cases: 62 Ala. 164; 66 Ala. 48; 39 South. 370; 11 Ala. App. 644, 66 South. 942; 48 South. 662. Brief of counsel did not reach the Reporter.

Dannie Dillehay was convicted of selling or removing property on which he had given a lien, and he appealed. The prosecuting witness, Bettie Allen, tended to show that the defendant rented from her a certain tract of land for which he agreed to pay her $350, and that he began •haying on May and had cut and removed considerable hay from the land, and that he had paid her only $66.

L. Brewer, Judge. Word White was convicted of manufacturing prohibited liquor, and he appealed. On rehearing counsel insists that under the opinion rendered in Milner v. State, ante, p. 157, 89 South. 306, the evidence could not make out a ease authorizing the conviction for the manufacture of prohibited liquors.

<p>Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.</p> <p>Joe Baxley and Luther Folkes were jointly indicted for the murder of one S. B. Sanders, and Joe Baxley was found guilty of manslaughter and Luther Folkes guilty of assault and battery, and from the judgment Joe Baxley appeals.</p> <p>After testifying as to conditions as he found them at the place of the homicide and as to the position of the body of the deceased, the witness Tatum was asked, “What did you see under the base shelf of the store?” and the witness answered, over the objection of the defendant, “I saw blood where it was spattered up against the wall, and there was a little portion of flesh there.” The witness Etheridge saw the difficulty and was permitted to testify as to what happened between Folkes and Sanders prior thereto. While the witness Alex Starling was being examined, the solicitor said:</p> <p>“Let me refresh your recollection; didn’t you testify in the former trial of this case, and also didn’t you tell me in the room there this morning, in the presence of Mr. Tatum and several others, that at the time the gun fired you could see Folkes very well, and that Folkes was right on Sanders, you might say, down on him, getting off him, and that they were fighting, the best you could see.”</p> <p>Refused charge 8 is as follows:</p> <p>If the state’s evidence in this ease consists in the statement of witnesses of the truth of r which the jury have a reasonable doubt, then I they cannot convict thereon, although they may not believe defendant’s witnesses.</p> <p>The action of the court in qualifying the jury was highly prejudicial to the defendant. 37 Fla. 382, 20 South. 232; 37 Fla. 156, 20 South. 235. The defendant was entitled to have a special jury, notwithstanding he was formerly acquitted of murder in the second degree, as no plea of former acquittal-was filed. 115 Ala. 1, 22 South. 585; 81 Ala. 20, 5 South. 577; 16 Ala. App. 417, 78 South. 411. The details of the former difficulty were clearly not admissible. 135 La. 736, 66 South. 188, and cases'.there cited; 63 Ala. 66; 74 Ala. 9; 191 Ala. 23, 68 South. 57. Counsel discuss other assignments of error, but without citation of authority.</p> <p>There was no error in the action of the court relative to the action of the jury. Section 7280, Code 1907; 168 Ala. 551, 53 South. 213; 10 Ala. App. 39, 65 South. 93; 133 Ala. 112, 32 South. 623 ; 24 Cyc. 312. The transcript did not need to contain the orders, etc., relative to a special venire. 85 South. *T89; 204 Ala. 687, 87 South. 177; Acts 1915, p. 708. The judgment entry shows it complies with rule 30.</p>

Greene, Judge. Motion by Louisville & Nashville Railroad Company, to ret;ax the cost in the case of Pred C. Riley and others, for the use of Jefferson County, against the Louisville & Nashville Railroad Company/ Prom a judgment granting the motion, respondents appeal.

<p>Appeal from Circuit Court, Jackson County; W. W. Harralson, Judge.</p> <p>John C. Bean was convicted of manslaughter in the first degree, and be appealed.</p> <p>Tbe defendant was charged with killing one George Stevens by shooting him with a pistol. The difficulty occurred at the home of the Mullins family and seems to have originated because Bean was acting improperly towards a woman there, and, when Mullins interfered, to prevent further misconduct on Bean’s part, Stevens took hold of Mullins, to prevent any further difficulty, and, after things became somewhat quiet, Stevens released Mullins, approached Bean, in an effort to get him to leave, when one shot whs fired, striking Mullins in the left breast and killing him.</p> <p>The court erred in its action relative to the remarks of the solicitor. 68 Ala. 476; 110 Ala. 53, 20 South. 468; 183 Ala. 273, 61 South. 80, Ann. Cas. 1916A, 543; 199 Ala. 411, 74 South. 454 ; 90 Ala. 596, 8 South. 670.</p>

W. Harralson, Judge. John Vickers was indicted for murder of Joe Bishop, convicted of manslaughter in the first degree, and he appeals. Mrs. Bishop testified, among other things, that Vickers and Joe Bishop had a difficulty “down in a field at our place in Jackson county,” and that in this difficulty the shot was fired that resulted in Joe Bishop’s death.

W. Harralson, Judge. Bode Brown was convicted of violating the? prohibition law, and he appealed. The indictment is insufficient and will not support a conviction. Gen. Acts 1919, p. 16, § 15. Counsel discuss the objections to evidence, and in support thereof cite the followng authorities: 179 Ala. 339, 60 South. 818, Inn. Cas. 1915C, 88S; 194 Ala. 273, 69 South. 027; 163 Ala. 255, 50 South. 1012; 2 Ala. ■Vpp. 524, 57 South. 52.

C. Brickell, Judge. William St. John was convicted of murder in the second degree, and he appeals. The person alleged to have been killed was Walter Lamb. The defendant admitted the killing, but claimed self-defense. L. W. Hopper appears to have been the only witness who was not related to either party who saw the killing.

<p>(. Criminal law <&wkey;351 (3) — Evidence of defendant’s flight held admissible.</p> <p>In a prosecution for violating the prohibition laws, where the state had proved that when the officers entered a room in which defendant and another were present and in which there was a quantity of rum, defendant ran down the railroad track, it was competent for the state to prove that the officers found de-: fendant about a month later at a place away from his home, where he had not been during the intervening time, as tending to show flight.</p> <p>2. Intoxicating liquors <@=3236(5) — Exercise of dominion over rum sustains conviction, even if another was the owner.</p> <p>Evidence that rum was in the room of defendant, and that he was exercising dominion or control over it, either alone or in conjunction with another, is sufficient to sustain a conviction for violating the prohibition laws, even if the other was the owner of the liquor.</p> <p>On Rehearing.</p> <p>3. Criminal law <&wkey;304( 17) — Court of Appeals judicially knows who was coun.ty judge.</p> <p>The Court of Appeals judicially knows who was the judge of the county court of the county in which the offense was committed.</p> <p>4. Criminal law <@=3218(2) — Warrant requiring appearance before person named, known to be county judge, with bond to appear before court, gives jurisdiction.</p> <p>Though the better practice is to make warrants returnable to the county court, a warrant, issued by a justice of the peace made returnable before an individual named therein, who was in fact the county judge, with a bond executed by accused when the warrant was served conditioned for his appearance before the county court to answer the charge stated in the‘warrant, gives the county court jurisdiction to try and determine the cause.</p> <p>5. Criminal law <&wkey;260i(6) — Judgment in county court, reciting appeal and suspension pending appeal, gives circuit court jurisdiction when defendant remains in custody.</p> <p>A judgment entry in the county court, reciting an appeal to the circuit court from a conviction for misdemeanor and the suspension of the judgment awaiting the judgment of the circuit court, was as sufficient to give the circuit court jurisdiction of the cause if defendant remained in .custody as if he had given bond for his appearance in the circuit court under Code 1907, § 6725, authorizing an appeal to the circuit court without bond if defendant remains in custody.</p>

A. Steele, Judge. Fred Hood was convicted of robbery, and appeals. The following charges were refused the defendant: (1) If the money taken was not the property of the prosecutor, and he was not lawfully in possession of it at the time it was removed from his person, you cannot convict the defendant of robbery, or assault with intent to rob.

P. Almon, Judge. Erank Mayhall' was convicted of murder in the second degree, and he appeals.

Greene, Judge. Action by the State of Alabama, on the relation of its Attorney General, against the Crane Company, for franchise tax for the year 1911. Judgment for plaintiff, and defendant appeals. The facts on which the opinion is rested sufficiently appear therefrom. This action is barred by the statute of limitations, and the court erred in sustaining demurrers to the plea. Sections 4830, 4831, and 4832, Code 1907.

Original petition by Kate L. Baltman for mandamus to be addressed to Judge Claude A. Grayson to require bim to hear and determine the rights between petitioner and Palm Oil & Supply Company and render a final judgment in said cause in accordance with the former opinion of the Court of Appeals.

P. Agee, Judge. Action by Mrs. Annie Franklin and others against Robert Williamson ai}d others. Judgment for the defendants, and plaintiffs appeal. D. Franklin testified that he was the husband of Ida Franklin during her lifetime, that she died December, 1918, leaving two children, Anna and Bertha, and was then asked to testify as to certain transactions with his deceased wife, to which the defendant interposed objections.

P. Agee, Judge. Action by P. I. Barnes, against the American Railway Express Company. Judgment for the plaintiff, and the defendant appeals.

Jones, Judge, Petition of Grady Williams for habeas corpus. The conviction pleaded as a bar to the further prosecution was a conviction under the state law, and not for the violation of the municipal ordinance. Section 9, Const. 1901; 188 Ala. 107, 66 South. 147; 155 Ala. 78, 46 South. 491; 71 Ala. 307; 136 Ala. 196, 34 South. 194; 89 Ala. 172, S South. 109; 13 Ala. App. 243, 68 South. 715; 17 Ala.

W. Harralson, Judge. A. O. Lindsey was convicted of violating an ordinance of the Town of Albertville, and he appealed. Counsel insists that “Beef, Iron & Wine” was not an intoxicating bitters or beverage. Acts 1915, p. 9. Counsel discuss other assignments of error, but without further citation of authority. The motion to strike the affidavit and complaint came too late. 4 Ala. App. 264, 58 South. 725.

E. Gamble, Judge. James, alias Jim Savage, was charged with having manufactured prohibited liquors and with having such liquors in his possession, convicted generally, and he appeals. The plea in former jeopardy was good. 155 Ala. 78, 46 South. 491; 71 Ala. 307; 86 Ala. 304,'5 South. 569; 159 Ala. 6, 48 South. 813; 14 Ala. App. 106, 71 South. 983; 72 South. 1019; 91 Ala. 25, 8 South. 560; 10 Ala.

Grayson, Judge. Action by Annie Fuller against the Mobile Light & Railroad Company for damages for personal injuries sustained in a collision. Judgment for plaintiff, and defendant appeals. Medical services are special damages, not to be recovered without special allegation. 202 Ala. 352, 80 South. 434; 150 Ala. 402, 43 South. 574 ; 94 Ala. 226, 10 South. 236; 97 Ala. 635, 12 South. 405; 167 Ala. 216, 52 South. 594; 7 Ala.

S. Williams, Judge. Rich Martin was convicted of assault with intent to murder, and he appeals. Counsel discuss the various assignments of error, but without citation of authority. The charge as to false swearing was properly refused. 16 Ala. App. 539, 79 South. 675. It was -proper for the state to show that the defendant had been convicted of burglary. 17 Ala. App. 379, 84 South. 862; section 4008, Code 1907.

W. Harralson, Judge. Action by Seaborn J. Walls against the Tennessee- River Navigation Company, for damages for failure to transport certain cross-ties. Judgment for plaintiff, and defendant appeals.

Goldsby, Judge. Action by Mollie Fuller against the Mobile Light & Railroad Company for damages for injury to an automobile. Judgment for plaintiff, and defendant appeals.

A. Pearce, Judge. H. H. McNeal was convicted of violating the prohibition laws, and he appeals. The act .under which the defendant is indicted violates the provisions of section 45 of the Constitution, in that section 4 is not relative or cognate to the title of the act. ' 113 Ala. 170, 21 South. 832; 75 Ala. 533; 156 Ala. 645, 47 South. 126; 168 Ala. 175, 52 South. 842; 153 Ala. 113, 45 South. 226; 160 Ala. Ill, 49 South. 809.

The court was in error in its oral charge as to the plea of insanity. 167 Ala. 14, 52 South. 840 ; 81 Ala. 577, 2 South. S54, 60 Am. Rep. 193; 139 Ala. 16, 36 South. 1012. Counsel discuss numerous other assignments of error, but without further citation of authority. On rehearing counsel insists that the issue of not guilty by reason of insanity was an issue in the case. 146 Ala. 259, 40 South. 971; 204 Ala. 547, 86 South. 389; 185 Ala. 597, 64 South. 341.

<p>Appeal from Circuit Court, Marshall County; IV. IV. Harralson, Judge.</p> <p>Action by J. T. Hamrick against R. E. Nail, with claim to the property levied on by M. L. Blumenfeld & Co. Judgment for plaintiff, and claimant appeals.</p> <p>Nothing short of a confession of judgment is a release of error, and the appellant did no more than make a motion of the sort contemplated by section 2891, Code 1907. 11 Ala. 1023; 187 N. Y. 90, 79 N. E. 836, 12 L. R. A. (N. S.) 707; section 2892, Code 1907 ; 3 C. J. 603, 672. The time of an appeal begins from the entrance of an appropriate judgment, and this judgment was not rendered until January, 1921. 3 C. J. 1050, 1058, 1059. The judgment of January, 1920, was wholly inappropriate, and would probably have not supported an appeal. 76 Ala. 308; 76 Ala. 325; 101 Ala. 186, 13 South. 43, 46 Am. St. Rep. 117; 129 Ala. 523, 30 South. 623; 129 Ala. 410, 30 South. 584; sections 6039 and 6042, Code 1907 ; 3 C. J. 597.</p> <p>The appeal was taken too late and should be dismissed. 161 Ala. 536, 50 South. 86.</p>

Lige Burnett was convicted of violating the prohibition laws, and he appeals. The court erred in permitting it to he shown that the defendant had, been convicted in the federal court for violating prohibition law. 64 South. 544; 14 Ala. App. Ill, 72 South. 211; 69 South. 227; 62 South. 322. Counsel discuss other assignments of error, but in view of the opinion it is not deemed necessary to here set them out.

<p>1. Homicide <&wkey;286(2) — Charge that law presumed malice from use of shotgun error.</p> <p>In a trial for murder, a charge that, accused having admitting the killing, the law presumed malice from use of a shotgun, was error, where accused insisted that he had acted in self-defense.</p> <p>2. Homicide <§=(146, 269 — On evidence that killing with deadly weapon was in self-defense, question of malice is for jury; presumption of malice from use of deadly weapon allowable, unless facts rebut presumption.</p> <p>In a trial for murder, there being some evidence that the killing was in self-defense, it was a question for the jury, not for the court, whether it was done with malice; the presumption of malice from use of a deadly weapon being allowed, unless the facts proving the killing rebut the presumption.</p>

L. Longshore, Judge. Ira Hardy was convicted of seduction, and he appeals.

Port, Judge. Ernest Williams was convicted of violating the prohibition law, and he appealed. The evidence was insufficient to sustain a conviction, and the defendant was entitled to a directed verdict. 17 Ala. App. 401, 85 South. 835; 85 South. 867; 17 Ala. App. 444, 85 South. 839; 88 South. 355; ante, p. 62, 88 South. 375. ■

<p>. Appeal from Circuit Court, Jefferson County; William E. Port, Judge.</p> <p>Charley Wade was convicted of mayhem, and he appealed.</p> <p>Prisoner was denied a public trial, 5s defined by section 6 of the Constitution of 1901. Rule 47, Eed. 394; 89 Mich. 276, 50 N. W. 995, 28 Am. St. Rep. 302; 103 Cal. 342, 37 Pac. 406; 75 Ohio St. 255, 79 N. E. 462, 9 L. R. A. (N. S) 277, 116 Am. St. Rep. 734, 9 Ann. Cas. 108; 8 R. O. L. 76; 52 Mont. 205, 156 Pac. 1080, L. R. A. 1916E, 472, Ann. Cas. 1917E, 619; 54 Or. 289, 103 Pac. 62, 20 Ann. Cas. 627; 68 Minn. 381, 71 N. W. 401, 38 L. R. A. 672, 64 Am. St. Rep. 482. The defendant need not have objected, and is not required to show injury. 75 Ohio St. 255, 79 N. E. 462, 9 L. R. A. (N. S.) 277, 116 Am. St. Rep. 734, 9 Ann. Cas. 108; 47 Ala. 659, and authorities supra. Section 169 of the Constitution does not authorize the proceedings in this case. 6 R. C. L. 48, 49; 12 C. J. 699; 154 Ala. 249, 46 South. 268; 12 Wheat. 419, 6 L. Ed. 678; 145 Ala. 385, 40 South.' 293 ; 71 Ala. 73; 19 How. 393, 15 L. Ed. 691; 149 Ky. .847, 150 S. W. 14. Section 1409 of the Code of 1901 is unconstitutional, if it is to be applied to criminal cases. 6 R. C. L. 40; 71 N. W. 491; 5 Ga. App. 59, 62 S. E. 651; 8 R. C. L. 76. The court had no power to exclude the public. 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746 ; 205 Ala. 386, 87 South. 375; Block v. Hirsh, 256 U. S. 135, 41 Sup. Ct. 458, 65 L. Ed. 865, 16 A. L. R. 165. There is no such thing as an implied waiver. Authorities supra.</p> <p>The Court of Appeals found as a fact that defendant had waived a public trial, and this court will not review that finding. 195 ■ Ala. 420, 71 South. 91; 184 Ala. 9, 63 South. 990; 181 Ala. 4, 61 South. 53. The motion for new trial was filed after the appeal was taken, and could not raise or present questions not raised in the trial court. 105 Ala. 200, 16 South. 693; 203 Ala. 205, 82 South. 455. A defendant may Waive his right to a public trial. 16 C. J. 808; 8 R. C. L. 77; 146 Ala. 149, 41 South. 301; 33 Ala. 354; 45 Ala. 21; 193 Ala. 69, 69 South. 10.</p>

Goldsby, Judge. Action by W. T. Thompson against the Pollock Dry Goods Company, Incorporated, for damages for injuries to an automobile as the result of a collision. Prom an insufficient judgment, plaintiff appealed. The court was in error in directing a verdict as he did. 12 Michie, Dig. 387 ; 38 Ala. ■ ¿84; 193 Ala. 664, 69 South. 102; 81 Ala. 343, 1 South. 108; 128 Ala. 523, 29 South. 618.

J. Curtis, Judge. Mandamus by J. D. Acuff, as Solicitor, against Grady Wilson, as Treasurer, to require the payment of solicitor’s fee out of the fine and forfeiture fund of the county. Prom a decree granting the writ, respondent appeals. Mandamus was granted only when there is a clear, specific, legal right. 16 Ala. App. 670, 81 South. 190; 69 Ala. 261; 71 Ala. 427; 123 Ala. 259, 26 South. 482, 45 L. R. A. 772; 36 Ala. 252.

K. MeMorris, Judge. Prosecution by tbe Town of Eclectic against Clover Smith for violating a municipal ordinance. Prom a conviction in the circuit court on appeal from the mayor’s court, .defendant appeals. The following is the indorsement on the book of ordinances, referred to in the opinion: On the flyleaf of the book was written in handwriting the words: “Code of Town of Eclectic. “By-Laws and Ordinances of the Town of Eclectic, Ala.

M. Miller, Judge. Henry Terry was convicted of failing or refusing to pay a license tax on a two-horse wagon, and he appeals. The commissioners’ court of Bibb county, by section 2 of its rules and regulations, fixed the license for two-horse wagon used in hauling logs and lumber, etc., at $10 per year, and by section 9 fixed the penalty for a failure or refusal to pay such license on or before the day fixed as a license period at double the amount of the license tax.

<p>Intoxicating liquors <&wkey;236(5) — Evidence held insufficient to justify conviction.</p> <p>In a prosecution for making, selling, giving away, or having a still for the purpose of manufacturing prohibited beverages, evidence as to finding corn, shorts, sweetening, etc., in defendant’s possession, held insufficient to justify conviction.</p>

Mamie Patrick was convicted of arson, and she appealed. There must be prima facie proof of a conspiracy before other evidence is admissible. 74 Ala. 16. The court erred in not sustaining objection to the remark of counsel for the state. 87 Ala. 14, 6 South. 296; 104 Ala. 472, 16 South. 638; 110 Ala. 48, 20 South. 468.

I. Jones, Judge. Action by the Norwood & Cameron Farm & Stock Company, Inc., against the Alabama, Tennessee & Northern Bailroad Corporation. From a judgment for plaintiff, defendant appeals. The case went to the jury upon the following complaint: Count 1.

Kyle, . Judge. Mandamus by J. W. Lambert, Sheriff, against Fred J. Buchmann, as Judge of Probate, to require respondent, as such Judge of Probate, to draw and issue the county warrant payable to petitioner for certain fees and costs. From a decree granting the writ, respondent appeals.

Kyle, Judge. Action by Mrs. M. C. Barclift against A. H. Peinhardt to recover money paid on the sale of some property. Judgment for defendant, and plaintiff appeals. The money paid is held as money had and received for the use of the owner, and a previous demand is not necessary. 96 Ala. 515; 11 South. 695, 38 Am. St. Rep. 116.

P. Heflin, Judge. Henry Threet was convicted of robbery, and be appeals. Court erred in its oral charge as to defendant’s alibi. 112 Ala. 47, 21 South. 79; 94 Ala. 18, 10 South. 665; 94 Ala. 76, 10 South. 426; 100 Ala. 144, Í4 South. 409; 15 Ala. App. 594, 74 South. 724. Counsel discuss the refused charges and the testimony, but without further citation of authority.

Cleve Barnes was convicted of violating the Prohibition Law, and he appeals. The indictment is as follows: The grand jury of said county charge that, before the finding of this indictment, and after January 25, 1919, Cleve Barnes distilled, made, or manufactured alcoholic, spirituous, malted, or mixed liquors or beverages, a part of which was alcohol.

<p>I. Indictment and information &wkey;o79, 169 — Misspelling of word in indictment held mot to render it demurrable or render evidence inadmissible.</p> <p>That an indictment for larceny of paper ■money misspelled paper “papaper” was a clerical error, and did not render the indictment demurrable, or render evidence that the money stolen was paper money inadmissible.</p> <p>2. Larceny c&wkey;68(l) — Where evidence conflict-' ing, affirmative charge properly refused.</p> <p>Where the evidence on a trial for larceny was in conflict, the affirmative charge was properly refused.</p>

L. Brewer, Judge. John Allen was convicted of violating the prohibition law and he appeals.

T. Lowe, Judge. Action by Joe Jackson against the National Life & Accident Insurance Company on two policies issued on the life of Jesse Jackson. Judgment for plaintiff, and defendant appeals. Count C claimed the sum of $92.50, and sets out the policy and the conditions named therein. Count D claims the sum of $18, and sets out the policy, together with the conditions thereon.

<p>Appeal from Circuit Court, Monroe County ; John D. Leigh, Judge.</p> <p>Action by J. A. Dees and another against S. H. Barnett. Judgment for defendant, and plaintiffs appeal.</p> <p>The court erred in the admission of the evidence, and the motion to strike out came in time. 112 Ala. 337, 20 South. 644; 187 Ala. 610, 65 South. 981; 38 Cyc. 1408.</p>

W. Harralson, Judge. Action in assumpit by Thomas S. Burns against John T. Farrow. Judgment for the plaintiff, and defendant appeals. Th'e pleadings and the facts sufficiently appear from the opinion.

J. Martin, Judge. Steve Wadsworth was convicted of violating the prohibition laws, áñd he appeals. The defendant was entitled to the affirmative charge. 109 Ala. 50, 19 South. 494 ; 90 Ala. 602, 8 South. 858, 24 Am. St. Rep. 844; Acts 1919, p. 11. The confession was improperly admitted. 83 Ala. 1, 3 South. 749, 3 Am. St. Rep. 6S2; 84 Ala. 426, 4 South. 383; 106 Ala. 34, 17 South. 456; 100 Ala. 15, 14 South. 859.

Turner, Judge. Percy Reed was convicted of miscegenation, and he appeals. The defendant was entitled to the affirmative charge, as unquestionably he was not within the purview of the statute. Section 7421, Code 1907; 10 L. R. A. 823;- 18 Ala. 276 ; 5 Words and Phrases, 416; 7 Mass. 88; 18 Ala. 720 ; 88 Ala. 216, 7 South. 261.

P. Heflin, Judge. Jim Rollins was convicted for miscegenation, and he appeals. The state failed to make out a prima facie case, and the defendant was entitled to the affirmative charge. 76 Ala. 42; 55 Ala. 154; 88 Ala. 236, 7 South. 346, 16 Am. St. Rep. 51; 2 O. J. 22-25. The court erred in admitting the alleged confession. 17 Ala. App. 167, 82 South. 657; 76 Ala. 42; 78 Ala. 425, 56 Am. Rep. 40; 203 Ala. 239, 82 South. 489.

<p>Appeal from Circuit Court, Jefferson County; William E. Fort, Judge.</p> <p>L. B. Thomas was convicted of larceny, and he appeals.</p> <p>The following charges were refused to the defendant:</p> <p>(7) I charge you, gentlemen of the jury, that circumstantial evidencp does not warrant a conviction unless to a moral certainty it excludes every reasonable hypothesis than that of guilt, and that, no matter how strong maybe the circumstances, if they can be reconciled with the theory that some other person may be guilty, then the guilt of the accused is not shown by the measure of proof required.</p> <p>(8) I charge you, gentlemen of the jury, that, to justify a conviction on circumstantial evidence, the jury must be so convinced that each of them would venture to act on the decision in matters of the highest concern to himself.</p> <p>(J) I charge you, gentlemen of the jury, that larceny is the wrongful taking and carrying away by any person of the mere personal property of another from any place, with a felonious intent to convert them to his own use and make them his own property, without the consent of the owner. But suspicious circumstances that all the above may be true will not do, but, in order to convict, the state must prove all the above to the entire satisfaction of the jury.</p> <p>(K) I charge you, gentlemen of the jury, that the openness of the conduct of the defendant in taking, keeping, or disposing of the property is a circumstance that you may take into consideration in determining the guilt or innocence of the defendant.</p> <p>Defendant was indicted under an indictment containing two counts. The first count charged grand larceny, and the second, buying or receiving stolen property knowing it to have been stolen. He was convicted under the first count, and from the judgment he appeals.</p> <p>The court erred in refusing charge 7. 134 Ala. 86, 32 South. 703. The court erred in refusing charge 8. 115 Ala. 42, 22 South. 551. The court erred in refusing charges J and It 130 Ala. 57, 30 South. 396; 12 Ala. App. 642, 68 South. 517.</p>

L. Brewer, Judge. Cheatham Reese was convicted for violating the prohibition laws, and he appeals. The indictment failed to contain words constituting all the elements, or constituent elements, of the offense. 45 Ala. 46; 17 Ala. 182; 16 Ala. App. 399, 78 South. 315; 15 Ala. App. 142, 72 South. 611; 203 Ala. 276, 82 South. 526.

<p>Appeal from Circuit Court, Jefferson County; H. P. Heflin, Judge.</p> <p>W. C. Agee was convicted of violating the prohibition law, and he appeals.</p>

B. Heflin, Judge. W. H. Knox, was convicted of assault and battery, and he appeals. The court erred in not admitting in evidence the letter referred to and the newspaper article. Section 6308, Code 1907; 155 Ala. 78, 46 South. 491; 71 Ala. 481, 46 Am. Hep. 342; 103 Ala. 30, 15 South. 892 ; 3 Ala. App. 352, 57 South. 98; 22 C. J. 454; 80 South. 370. It was competent to show Cowen’s animosity to the defendant. 40 Cyc. 2728; Jones on Evidence, 1053; 76 Ala. 8; 15 Ala.

<p>Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster, Judge.</p> <p>J. L. Davis was convicted of failing or refusing to dip tick-infested cattle, and he appeals.</p>

P. Heflin, Judge. Clyde Hodge was convicted; of receiving or concealing stolen property, and he appeals.

<p>Appeal from Circuit Court, Covington County; A. B. Eoster, Judge.</p> <p>Bud Boyett was convicted of manslaughter, and he appeals.</p> <p>The court erred in the admission of the empty shells. 109 Ala. 11, 19 South. 535. The argument of the solicitor was improper and highly prejudicial. 112 Ala. 1, 21 South. 214; 101 Ala. 382, 13 South. 504; 77 Ala. 18;-122 Ala. 26, 26 South. 162.</p> <p>The empty shells were properly admitted. 202 Ala. 24, 79 South. 362; 17 Ala. App. 490, 86 South. 131; 85 South. 819; 112 Ala. 1, 21 South. 214. There was no error in the admission of the other evidence. 197 Alii. 193, 72 South. 316; 183 Ala. 1, 62 South. 780; 12 Ala. App. 97, 68 South. 543. No error was committed, so far as the argument was concerned. 148 Ala. 108, 41 South. 873.</p>

B. Foster, Judge. C. IX Bohannon was convicted of bigamy, .and he appeals. • The certificate referred to contains the application and affidavit for the marriage, the license, and the certificate of the minister who performed the ceremony.

Lincoln Rice was convicted of an assault with intent to rape, and he appeals. The court should have charged- upon the law of the lesser offense. Sections 6311 and 7135, Code 1907; 8 Ala. App. 295, 62 South. 394. Counsel discuss other assignments of error, but without further citation of authority. There was no evidence to justify a verdict for a lesser offense. 195 Ala. 681, 71 South. 452. Counsel requested no special charges on that subject. 173 Ala. 675, 55 South. 1001.

C. B. Gwin, Judge. Otis Gary was convicted of murder in the second degree, and lie appeals. A mistrial should have been entered and a continuance granted because of the separation’ of the jury. 45 Ala. 59. The demurrer to the evidence should have been sustained. 1 Mayfield, 415.

L. Longshore, Judge. Wiley J. Nelson was indicted for murder in the first degree, and convicted of manslaughter in the first degree, and he appeals.

Turner, Judge. Cooper Reed was convicted of murder in the second degree, and he appeals. The person alleged to have been killed was Leslie Wilks, and the instrument used was alleged to he a stick or scantling. The witnesses Lynes and Daugherty each testified to a conversation had with the defendant in the presence of the sheriff, and each testified that the talk was voluntary; no inducements were offered, no hope of reward held out, and no threats made.

A. Steele, Judge. John Ramsey was convicted of larceny, and he appeals. The bill of exceptions should.be stricken. Sections 3019 and 3022, Code 1907. In the absence of the bill of exceptions, the court will not review charges refused. 73 South. 748.

<p>1. Criminal law <&wkey;4l9, 420(10) — Witnesses <&wkey;406 — Evidence as to statements in presence of defendant held admissible to contradict his testimony.</p> <p>In a prosecution for statutory rape, under Code 1907, § 7700, as amended by Acts 1915, p. 137, in which defendant had testified in his own behalf, it was not error to admit testimony by the girl’s father as to statements by a third person in the presence of accused that some one made arrangements for a room, over objection that it was hearsay and that no sufficient predicate had been laid for impeachment of accused, where the testimony contradicted defendant’s testimony and was not offered to impeach him.</p> <p>2. Witnesses <@=»379(l), 388(10) — May be impeached by contradictory statements, and predicate as to time and place must be laid.</p> <p>Witnesses may be impeached by showing contradictory statements, and a proper predicate as to time, place, etc., must be laid.</p> <p>3. Criminal law <&wkey;>l 169(2) — Error in admission of testimony immaterial where same fact is otherwise proven.</p> <p>If there was error in admitting rebuttal testimony of a witness, it was immaterial, where the^, witness had already testified to the same matter upon direct examination without objection.</p> <p>4. Criminal law 4&wkey;753(2) — Refusal of affirmative charge not error where evidence is conflicting.</p> <p>It was not error to refuse defendant’s request for an affirmative charge where the evidence introduced by the state is contradicted, but ample to support a conviction if believed by the jury.</p>

B. Foster, Judge. Grover C. Wilson was convicted of cruelty to animals, and he appeals. The affidavit in the justice court charges that the defendant did unlawfully, wantonly, or cruelly kill a hog, the property of Leon Caldwell. The first count of the complaint charged that the defendant unlawfully, wantonly, or maliciously killed, disabled, disfigured, or injured a hog, the property of Leon Caldwell.

S. Williams, Judge. Mary Banks was convicted of violating the prohibition law, and she appeals. A search made without a proper search warrant is illegal and unauthorized, when made without the consent of the occupant of the premises, and evidence thus obtained is not admissible. Sections 5 and 6, Const. 1901; articles 4 and 5 of Amendments, U. S. Const.; 182 Ala. 475, 62 South. 77, Ann. Cas. 1915D, 436; 34 Ala. 216; 219 U. S. 219, 31 Sup.

<p>Appeal from Circuit Court, Butler County; A. El Gamble, Judge.</p> <p>Jim Lee Burnett was convicted of forgery, and he appealed.</p> <p>The demurrers to the indictment should have been sustained, and the court should have directed a verdict for the defendant. 82 Ala. 44, 2 South. 463; 120 Ala. 360, 25 South! 236; '87 Ala. 36, 6 South. 271; 81 Ala. 61, 1 South. 69; 75 Ala. 1; 53 Ala. 467, 25 Am. Rep. 639; 1 Bay (S. O.) 205.</p>

A. Steele, Judge. Os Kirkpatrick was convicted of violating the prohibition laws, and he appeals. The court erred in permitting the memorandum of the evidence before the grand jury. 181 Ala. 460, 62 South. 12; 158 Ala. 539, 48 South. 553, 132 Am. St. Rep. 38; 156 Ala. 228, 47 South. 210; 102 Ala. 164, 14 South. 895 ; 40 Cye. 2559-2569.

<p>Appeal from Circuit Court, Coffee County; A. B. Foster, Judge.</p> <p>Jim Thomas, alias, was convicted of violating the prohibition law, and he appeals.</p> <p>Counsel discuss evidence, with the insistence that it does not'sustain the conviction, and they cite authorities to support their contention, but in view of the opinion it is not deemed necessary to here set them out.</p>

<p>Appeal from Circuit Court, Clebourne County; A. P. Agee, Judge.</p> <p>William Farrister was convicted of violating the prohibition' law, and he appeals.</p> <p>The indictment was void for failing to allege the time, that the offense was committed, whether before or after the approval <of Act Jan. 25, 1919. 17 Ala. App. 464, 86 South. 172.</p>

<p>1. Intoxicating liquors <S=o202 — Indictment held to sufficiently charge that apparatus was to be used for purpose of manufacturing liquors.</p> <p>While a necessary constituent of the offense charged should be laid positively, and not by way of mere recital or doubtful implication, an indictment under Acts 1919, p. 1086, § 1, charging that defendant did sell, give away, or have in possession a still or apparatus for the purpose of manufacturing prohibited liquors amounted to an allegation that it was to be used for the purpose of manufacturing such liquors, and sufficiently complied with the statute.</p> <p>■ 2. Criminal law <@=>l 182 — Judgment not reversed when error not affirmatively shown.</p> <p>Where an examination of the record shows no error in the admission of evidence of a confession, the judgment will be affirmed.</p>

W. Haralson, Judge. Andrew Gilbert was convicted of violating the prohibition laws, aijd he appeals. The defendant was entitled to the affirmative charge, as the accomplices were not corroborated. Section 7897, Code 1901; 4 Ala. App. 90, 58 South. 685. The court should not have examined the witnesses, as to matters about which the prosecuting attorney could not examine them; Section 43, Const. 1901.

W. Burkett, Judge. Richard (alias Bud) Neal brought habeas corpus for his discharge from custody. Erom an order denying his discharge, he appeals. There was no warrant of law for holding the petition, and the petition should have been granted. 16 Ala. App. 397, 78 South. 313.

<p>Appeal from Circuit Court, Crenshaw County; A. E. Gamble, Judge.</p> <p>Hammond Perdue was convicted of having carnal knowledge of a girl under 16 years of age, and he appeals.</p> <p>The bill of exceptions was not presented within time, and cannot therefore be considered. There is no error in the record.</p>

W. Haralson, Judge. Richard Childers, alias,- was convicted of violating the prohibition law, and he appeals. The state elected the time and place testified to by witness Lyons, and the court committed error in allowing proof of other acts at other times. 52 Ala. 384; 109 Ala. 45, 19 South. 491; 152 Ala. 38, 44 South. 621; 136 Ala. 117, 33 South. 831.

<p>Appeal from Circuit Court, St. Clair County; O. A. Steele, Judge.</p> <p>J. W. Wynn was convicted of nonsupport and desertion of his minor children, and he appeals.</p> <p>The statute is penal and must be strictly, construed. Acts 1915, p. 560; Acts 1919, p. 176; 8 Ala. App. 319, 62 South. 470. The Legislature cannot direct the judiciary how it should interpret the law. 120 Ala. 156, 24 South. 171, 42 L. R. A. 783; 41 Ala. 153. The offense was not a continuing one, and the evidence did not support it. 97 Ala. 27. 12 South. 392; 146 Ala. 145, 41 South. 175; 98 TJ. S. 450, 25 L. Ed. 193. Abandonment is not a crime under all circumstances. 100 Ala. 86, 14 South. 867; 162 Ala. 94, 50 South. 362.</p> <p>The court properly construed and applied the acts cited, although the prosecution fell under the act of 1919, instead of 1915.</p>

P. Agee, Judge. Dewey Laminack was convicted of violating the prohibition law, and he appeals. The indictment is void and will not sus-, tain the judgment. Ante, p. 217, 90 South. 16; 17 Ala. App. 464, 86 South. 172; 16 Ala. App. 534, 79 South. 314; 88 South. 362; 159 Ala. 71, 48 South. 864, 133 Am. St. Rep. 20; 158 Ala. 44, 48 South. 505.

P. Agee, Judge. George and Chester Laminack were convicted of violating the prohibition law anrl they appeal. The indictment was void and subject to the demurrers imposed. Ante, p. 217, 90 South. 16; 88 South. 362; 17 Ala. App. 464, 86 Soutfi. 172; 16 Ala. App. 534, 79 South. 314; 159 Ala. 71, 48 South. 864, 133 Am. St. Rep. 20; 158 Ala. 44, 48 South. 505.

P. Heflin, Judge. E. C. Bradford was convicted for failing or refusing to dip tick-infested cattle, and he appeals. The court erred in overruling demurrers to the affidavit and in refusing the charges requested. 17 Ala. App. 419, 84 South. 883.

B. Foster, Judge. Newt Hampton was convicted of violating the prohibition law, and he appeals. Counsel for appellant said: “I want to except to that part of your honor’s oral charge in which you state that it is a violation of the law to have any quantity of alcoholic liquor in possession under any circumstances.” The court was in error in its oral charge. Acts 1919, p. 7. The attempted exception to the oral charge of the court was abortive. 201 Ala. 55, 77 South. 349.

Martin, Judge. Elmer Cochran was convicted of manufacturing prohibited liquors, and he appeals. The sheriff was examined as a witness for the state, and stated that he had a conversation with the defendant after he was arrested, and he was asked if the defendant said anything to him about who it was that mended the fire before Robinson and Butts were arrested. He replied that he did.

K. McMorris, Judge. Robert Teel was indicted for murder in the first degree, convicted of manslaughter in the first degree, and he appeals. It is alleged that Teel killed Gordon Jones by striking him with a stick. The difficulty occurred in .a tie yard, where both the defendant and the deceased were hauling and banking ties.

<p>Appeal from Circuit Court, Monroe County; John D. Leigh, Judge.</p> <p>■^Vill Hall was convicted of manslaughter, and he appeals.</p> <p>The motion to quash the venire was based on the ground that the trial judge did not draw the names of the jurors from the jury box one by one, as- the law provides, but drew several names of jurors therefrom at the same time. When the juror G. C. Watson was called to be qualified, it was shown that he was a member of a jury commission, and that he claimed his exemption as such, whereupon the court excused said Watson, and directed that his name be stricken from the jury list. It appeared that the court in drawing the jury drew from three to six names at a time, held the list of names in his hands, and handed the slips to the sheriff one at a time.</p> <p>The court erred in excusing the juror Watson, on his statement that he was a jury commissioner. 68 Ala. 469; 85 Ala. 4, 4 South. 679; 22 Ala. 50. The court erred in overruling the motion to quash the venire. 146 Ala. 36, 41 South. 421; 161 Ala. 25, 49 South. 824; 168 Ala. 53, 52 South. 939; 19 O. J. 762; 102 Ala. 24, 16 South. 99. It was competent to show that the witness was indebted to the defendant. 17 Ala. App. 301, 84 South. 777; 13 Ala. App. 61, 69 South. 319; 13 Ala. App. 115, 69 -South. 370. The court erred in excluding the. evidence as to who was overseer over the road at that time. 150 Ala. 97, 43 South. 201. It was competent to show that deceased was in habit of carrying a pistol, coupled with the fact that the defendant knew this. 116 Ala. 463, 23 South. 26; 133 Ala. 128, 32 South. 227; 99 Ala. 146, 13 South. 424; 144 Ala. 32, 40 South. 572; 151 Ala. 41, 44 South. 84. Why the defendant jumped into the road was a part of the res gestte. 4 Ala. App. 7, 58 South. 675; 4 Ala. App. 32, 58 South. 996; 77 Ala. 33. The court erred in its general charge to the jury, and did not cure the error by the method of withdrawal. 102 Ala. 144, 15 South. 278; 140 Ala. 137, 37 South. 223 ; 81 Ala. 343, 1 South. 108; 151 Ala. 41, 44 South. 84. •</p>

<p>1. Criminal law <@=>204 — Appeal from recorder’s court held to constitute waiver of jeopardy.</p> <p>Where defendant was tried and convicted in the recorder’s court for violation of the prohibition laws, and the state then filed a charge in the circuit court for violation of the prohibition laws, the appeal of the original case to the circuit court where it was still pending constituted a waiver of any jeopardy.</p> <p>2. Indictment and information <@=>15(2) — Plea that another charge for the same offense is pending not good in abatement.</p> <p>A plea that there is another charge for the same offense pending against the defendant is not good in abatement, and is subject to demurrer.</p> <p>3. Criminal law <@=>280(3) — Plea in abatement, which does not alleged pendency of cause in another co.urt of competent jurisdiction, is faulty.</p> <p>A plea in abatement on the ground of the pendency of another charge for the same offense is faulty, where it does not allege the pendency of the cause in another court of competent jurisdiction.</p> <p>4. Intoxicating liquors <@=>233(1) — Evidence that drunken people were observed around defendant’s place of business held admissible.</p> <p>In a prosecution for possession of prohibited liquor, it having been shown that a quantity of whisky was found at defendant’s place of business, evidence that drunken people were observed in and around defendant’s place of business about the time the whisky was found held admissible.</p> <p>5. Criminal law <@=>696(2) — Objection to testimony held waived,, where no motion to exclude was made.</p> <p>Objection to an answer of a witness as being illegal and unresponsive is waived, where no motion to exclude the testimony was made.</p> <p>6. Criminal law <@=>725 —Counsel should not make use of discretion of the court in argument.</p> <p>Counsel for defendant should not make use of the discretion of the court as to punishment to be inflicted upon conviction as an argument to the jury to justify any action they might consider just.</p> <p>7. Criminal law <@=>1168(1) — Refusal of charge on count as to which defendant was acquitted held not prejudicial error.</p> <p>The refusal to give the general affirmative charge as to a count of the indictment was nob error, where defendant was acquitted on that count.</p> <p>8. Intoxicating liquors <@=>131— Instruction that if liquor was not kept for illegal purpose the verdict should be for acquittal held properly refused.</p> <p>In a prosecution for possession of prohibited liquor, an instruction that, if defendant did not have the liquor for illegal purposes, the verdict should be for acquittal, held properly refused, as the possession of liquor without more is a violation of the law.</p> <p>9. Intoxicating liquors <@=>167 — Instruction that if liquor wás placed by another in defendant’s room he was not guilty held properly refused.</p> <p>In a prosecution for possession of prohibited liquor, an instruction that, if the liquor was placed in defendant's room aqd he had no other connection with it, the verdict should be for acquittal, held properly refused, because if defendant permitted the whisky to be deposited in his room, he would be equally guilty with the person having possession of the liquor.</p>

ty; H. P. Heflin, Judge. Ida Cartwright was convicted in the recorder’s court of violating a prohibition ordinance of the City of Birmingham. She appealed to the circuit court, where she was again convicted, and she again appeals. Counsel discuss the merits of the appeal and in support thereof cite 255 U. S. 313 and 316, 41 Sup. Ct. 266, 65 L. Ed. 654.

<p>Appeal from Circuit Court, Bibb County; S. F. Hobbs, Judge.</p> <p>Henry Suttle and Luke Hartley were indicted for murder in the first degree for the killing of Alvary Fikes by shooting him with a pistol. Henry Suttle was convicted of murder in the second degree, and he appealed.</p> <p>The following charges were refused to the defendant:</p> <p>(2) I charge you that, if you believe from the evidence that Fikes told the truth when he told Mr. Fair that Luke Hartley shot him, then it will be your duty to acquit the defendant.</p> <p>(3) You can look to the demeanor of each witness while he or she was testifying, in connection with what the witness testified to, and if, from this rule of law I give you, you should believe that the witness Cora Davidson testified willfully false as to any material facts, then it will be your duty to reject her entire evidence.</p> <p>(5) To determine whether or not the defendant was a peacemaker, it will be your duty to consider that the defendants had stopped fighting or quit fighting, in connection with what he did' when the fighting was going on between Fikes and Hartley in the restaurant, in determining from all the evidence whether or not defendant was a peacemaker, and, if you find from all the evidence that he was only a peacemaker, then it will be your duty to acquit him.</p> <p>(6) Henry Suttle and Luke Hartley are indicted jointly in this case for killing Fikes by shooting him with a pistol, and if you believe from all the evidence that Suttle had no motive for shooting Fikes, and Hartley did have motive to shoot Fikes then it, will be your duty under all the evidence in the case to determine which one did the shooting, and if under this rule of law you should conclude from all the evidence that Suttle did not shoot Fikes, then it will be your duty to acquit him.</p> <p>The action of the court amounted to his excusing twelve jurors, which he cannot do. 102 Ala. Ill, 15 South. 810; 86 Ala. 45, 5 South. 432; 83 Ala. 20, 3 South. 547. The court erred in not permitting -Fair to state as to whether the sound was that of a smaller or larger pistol. 75 Ala. 411; 50 Ala. 537; 30 Ala. 432; 27 Ga. 283. The court erred in sustaining objections to the affidavit of Luke Hartley. 100 Ala. 144, 14 South. 409 ; 58 Ala. 349; 72 Ala. 526; 82 Ala. 63, 2 South. 764; 136 Ala. 43, 33 South. 892. CounseL'discuss the charges refused, but without further citation of authority.</p> <p>The court did .not err in declining to let the witness Fair state his opinion as to whether it was a larger or smaller pistol that fired. 194 Ala. 51, 69 South. 125; 143 Ala. 28, 38 South. 919; 22 O. J. 526. Counsel discuss other assignments of error, but without further citation of authority.</p>

W. Tate, Special Judge. Grover Burk was convicted of seduction, and he appeals. There was not sufficient corroborative evidence under the statute to sustain the charge, and the court should have directed a verdict for the defendant. 73 Ala. 51; 73 Ala. 527; 79 Ala. 14; 142 Ala. 33, 39 South. 341; 133 Ala. 198, 32 South.. 56, 91 Am. St. Rep. 25; 90 Ala. 641, 8 South. 821; 93 Va. 815, 22 S. E. 863; 2 Words and Phrases, 1628. The question of corroboration was one of fact.

Clair County; O. A. Steele, Judge. William P. Cooke was convicted of assault with intent to murder, and he appeals.

<p>Appeal from Circuit Court, Blount County; W. J. Martin, Judge.</p> <p>Henry Allen was convicted of violating the prohibition law, and he appeals.</p> <p>Defendant was indicted and convicted by the court, without a jury on a charge of violating the prohibition law, and from the judgment he appeals.</p> <p>Counsel discuss the errors assigned, but without citation of authority.</p>

<p>Appeal from Circuit Court, Jefferson County; H. P. Heflin, Judge.</p> <p>Sam Lynn was convicted for violating the tick eradication law, and he appeals.</p> <p>The following is the affidavit, omitting formal charging part:</p> <p>“Geo. Vanderver, who, being duly sworn, says that Sam Lynn; whose name is otherwise unknown to affiant, within 12 months before making this affidavit, in said county, did have in his possession, or in charge as owner or otherwise, one or more cattle in a tick-infested or quarantined county, or on a tick-infested or quarantined premises, range, farm, or .pasture, that have not been released from state and federal quarantine, and did fail to dip said cattle within the time and at the place designated and required by law, after having been legally notified in writing by a local inspector to do so, against the peace and dignity of the state of Alabama.”</p> <p>This case should be reversed and remanded on the authority of, 17 Ala. App. 419, 84 South 883.</p> <p>The law has been changed since the case referred to by appellant was decided, and the court did not err in overruling the demurrer. Ante, p. 83, 89 South. 97; Bradford v. State, ante, p. 401, 92 South. 17.</p>

E. Gamble, Judge. John Windom was convicted of murder in the second degree, and he appeals.

E. Fort, Judge. John Arnold was convicted of manslaughter in the first degree, and he appeals.

<p>Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge. '</p> <p>Action by W. O. Taylor against Joel L. Baskin upon a judgment rendered in the Tennessee courts. From a judgment setting aside the judgment for defendant and granting plaintiff a new trial, the defendant appeals.</p> <p>The defendant was entitled to a judgment, and the court improperly set the same aside and awarded the plaintiff a new trial. 3 C. J. 310; 186 Ala. 567, 64 South. 960; 173 Ala. 106, 55 South. 632; 126 Tenn. 553, 151 S. W. 58; 95 Ala. 479, 12 South. 577; -27 Ala. 668, 62 Am. Dee. 785.</p> <p>The trial court erred in its judgment for the defendant, and properly set it aside and granted the plaintiff a new trial. 187 Ala. 77, 65 South. 516; 90 Ala. 454, 8 South. 186; 90 Ala. 391, 7 South. S08, 24 Am. St. Rep. 819: 57 Ala. 448 ; 76 Ala. 291; 2 Stew. 124; 23 Cye. 1584.</p>

L.-Brewer, Judge. Frank Griggs was convicted of violating the prohibition laws, and he appeals. The facts on which the opinion is rested sufficiently appear therefrom. Defendant was indicted under two counts. The fix’st count being demurred to and demurrer sustained was eliminated, and defendant was tried on the second count charging possession of a still, etc. From the judgment of conviction he appeals.

A. Steele, Judge. William Williams was convicted of murder in the second degree, and he appeals. The following is charge 7, refused to the defendant: (7) The court charges the jury that it is not necessary_ under the evidence in this case that defendant should have been actually in danger of death or great bodily harm at the time he fired the fatal shot, or that retreat would have really increased his peril, in order for him to have been justified in shooting deceased.

Golesby, Judge. Action by Charles G. Ollinger against the Government Street Lumber Company. From a judgment for plaintiff, defendant appeals.

B. Foster, Judge. Action in assunfpsit by Carlisle & Bastón against J. Rawls to recover broker’s commissions. From a judgment for plaintiffs defendant appeals.

Kyle, Judge. C. E. Barnes was convicted of operating a slot machine in violation of a city ordinance, and he appeals. An affidavit charging an offense under ordinances enacted by municipal corporations must aver the adoption thereof and set forth the ordinance at length or the substance thereof, and it must aver the offense committed with certainty. 168 Ala. 195, 52 South. 742; 16 Ala. App. 389, 78 South. 167; 166 Ala. 612, 52 South. 347; 179 Ala. 97, 59 South. 597; 17 Ala.

W. Haralson, Judge. Action on account by G. E. Stanley against J. P. Davis. From a judgment for plaintiff, defendant appeals. The testimony being at entire variance with the complaint, the defendant was entitled to the affirmative charge. 52 Ala. 528; 163 Ala. 562, 50 South. 1023; 115 Ga. 156, 41 S. E. 686.

L. Brewer, Judge. Walter Eloyd. was convicted of violating the prohibition law, and he appeals.

<p>Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.</p> <p>Action in assumpsit by the J. B. Colt Company against A. J. Beard. Erom a judgment for plaintiff, defendant appeals.</p> <p>When the execution of a written instrument is obtained by misrepresentation of its contents, the party defrauded can avoid the effect of his signature, notwithstanding he may have neglected to read the instrument. 6 Mayf. Dig: 409; 152 Ala. 312, 44 South. 390; 104 Ala. 508, 16 South. 522, 53 Am. St. Rep. 77; 108 Ala. 137, 19 South. 14; 117 Ala, 162, 23 South. 682; 110 Miss. 107, 69 South. 670; 196 Ala. 385, 72 South. 8; 16 Ala. App. 445, 78 South. 643. The plaintiff having taken issue on defendant’s pleas, and said pleas having been fully proven, the defendant was entitled to the general charge. 126 Ala. 319, 28 South. 590; 5 Mayf. Dig. 757; 120 Ala. 547, 24 South. 936, 74 Am. St. Rep. 48; 110 Ala. 342, 20 South. 114; 137 Ala. 277, 33 South. 888; 125 Ala. 544, 27 South. 922.</p> <p>To avoid a contract for fraud, defendant must show that he was' induced by the fraudulent statement of fact to enter into the contract. 6 Ala. App. 197, 60 South. 495; Code 1907, § 4298.</p>

E. Gamble, Judge. . Action by Lucy Watt as administratrix of the estate of C. T. Watt, deceased, against Ludden & Bates, a corporation. From a judgment for plaintiff defendant appeals.

B. Poster, Judge. Action on account by the H. H. Daxxiel Company against H. G. Brown. Prom a judgment for defendaxxt, plaintiff appeals. Where the judgment is contrary to the law and evidence, or contx-ary to the preponderanee of the testimony, the appellate court will reverse and remand the cause, or render such judgment as the court below should have rendered. Acts 1915, p. 824; 196 Ala. 403, 72 South. 52; 17 Ala. App. 25, 81 South. 361; 17 Ala.

<p>Appeal from Circuit Court, Clay County; W. L. Longshore, Judge. Action by S. C. Hoge against the Alabama Northern Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.</p>

<p>Appeal from Circuit Court, Jeiferson County; H. P. Heflin, Judge.</p>

<p>Appeal from Circuit Court, Jefferson County; William E. Fort, Judge.</p>

<p>Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge. Jack Buttram was convicted of violating the prohibition law, and he appeals. ¡Affirmed.</p>

<p>Appeal from Circuit Court, Coffee County; A. B. Foster, Judge.</p>

<p>Appeal from Circuit Court, Lauderdale County; O. P. Almon, Judge. Roy Graham was convicted of violating the prohibition law, and he appealed.</p>

<p>Appeal from Circuit Court, Winston County; J. J. Curtis, Judge. Jim Musgrovo was convicted of distilling alcoholic liquors, and he appeals.</p>

<p>Appeal from Circuit Court, Mobile County; Joel W. Coldsby, Judge.</p>

<p>Appeal from Probate Court, Madison County; Thos. W. Jones, Judge. Petition by D. F. Reed for.habeas corpus. From an order denying the writ, petitioner appeals.</p>

<p>Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.</p>

<p>Appeal from Circuit Court, Jefferson County; Remain Boyd, Judge. J. R. Allison brought habeas corpus to be granted bail. From an order allowing bail, the State appeals.</p>

<p>Appeal from Circuit Court, Jefferson County.</p>

<p>Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.</p>

C. B. Gwin, Judge. Lon Tyler applied for habeas corpus to be admitted to bail. From an order denying the writ, petitioner appeals.

<p>Appeal from Circuit Court, Coffee County; J. A. B. Foster, Judge. Will Wambles was convicted of a violation of the prohibition law, and appeals.</p>

<p>Appeal from Circuit Court, Lee County; Lum Duke, Judge. Felix Veasley was convicted of manslaughter, and appeals.</p>

<p>Appeal from Circuit Court, Jefferson County; William E. Fort,- Judge. Manly Williams, alias Emanuel Williams, was convicted of the larceny of an automobile, and he appeals.</p>