Volume 19 — Alabama Appellate Reports

Locke, Judge. Suit by Dee Griffith against J. B. 1-Ielm. Judgment for plaintiff, and defendant appeals. Brief did not reach the Reporter. Brief did not reach the Reporter.

<p>Appeal from Circuit Co-urt, Houston County ; H. A. Pearce, Judge.</p> <p>Action by A. W. McEachern, administrator, etc., against the Atlantic Coast Line Railroad Company. Prom a judgment for plaintiff, defendant appeals. Affirmed.</p>

County; H. A. Pearce, Judge. Action for damages by H. C. Hodges against the Atlanta & St. Andrews Bay Railway Company. From a judgment for plaintiff, defendant appeals. The giving of the charge, at plaintiff’s request, to the effect that, if the engineer did not reverse his engine and the- failure to reverse was the cause of the killing of the bull, then the plaintiff was entitled to.recover, was reversible error. 153 Ala. 139, 44 South. 963, 14 L. It. A. (N. S.) 261.

Foster, Judge; Action on insurance policy by Charley Hanner against the National Life & Accident Insurance Company. From a judgment for plaintiff, defendant appeals. It was error to refuse the affirmative charge requested by defendant, and to overrule its motion to set aside the verdict.

L. Longshore, Judge. Action by Z. D. McCord against R. L. Rum-sey, J. U. Bridges, and Cleve Hawkins. Prom a judgment granting motion for new trial and rendering judgment for defendants, plaintiff appeals. A bailor may maintain trover against a bailee, where the bailee uses the property for a different purpose'or for a longer time than was authorized by the bailment. 130 Ala. 299, 30 South. 342; 163 Ala. 314, 51 South. 14; 3 Ala.

Brickell, Judge. Motion of L. C. White and others to quash execution issued on forfeited replevy bond in detinue, by G. T. Morring against D. C. White and others. From a judgment overruling the motion, the movants appeal. Replevy bonds, being of statutory creation, are strictly construed, and must follow the substance of the statute authorizing them. Code §§ 3778, 37S0; 5 Ala. 61S; 7 Ala. 593; 97 Ala. 715, 12 South. 166; 99 Ala. 603, 12 South. 917; 57 Ala. 571.

C. B. Gwin, Judge. Action by Sam L. Moore against the Alabama Great Southern Railroad Company. Judgment for plaintiff, and defendant appeals.

P. Heflin, Judge. Coyle Maske was convicted of seduction, and lie appeals. Acts of intercourse by the parties subsequent to a seduction are inadmissible, and it is prejudicial error 'to admit evidence thereof over defendant’s objection. 149 La. 617, 89 South. 866; 78 South. 386; 137 Ala! 56, 34 South. 840; 18 Ala. App. 482, 93 South. 269.

L. Longshore, Judge. Amandh Thomas sues the Atlantic Coast Line Railroad Company for damages for per'sonal injuries. There was judgment for plaintiff, and defendant appeals.

<p>I. Witnesses &wkey;>372(2) — Evidence of amount paid by witness for special prosecuting counsel competent to show interest of witness.</p> <p>In a prosecution for using abusive, insult.ing, or obscene language in the presence or hearing of a woman, where the stepfather of prosecutrix testified that he had employed counsel to prosecute, it was error to exclude on his cross-examination answers to defendant’s question as to how much he agreed to pay counsel, which would evidence the extent of his interest in the prosecution.</p> <p>2. Obscenity <&wkey;>4, 19 — Whether request for kiss was insulting and “obscene” was jury question; “obscene” defined. .</p> <p>In a prosecution for using abusive, insulting, or obscene language in the presence of a woman, under testimony that defendant invited a girl to warm herself in his store, and then gave her a dollar, and said, “If you will let me kiss you I will buy you a pretty. ring,” the question whether the words were insulting was for the jury, and whether they were obscene depended upon their purport in this particular casé; “obscene” being something offensive to chastity; that which is offensive to chastity and modesty.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Obscene —Obscenity.]</p> <p><@=»For other eases see same topic and KEr-KUMBBR in all Key-JN umbered Digests and Indexes</p>

<p>Appeal from Circuit Court,. Washington County; Ben D. Turner, Judge.</p> <p>Jesse Price was convicted <5f grand larceny, and he appeals.</p> <p>No brief reached the Reporter.</p> <p>No brief reached the Reporter.</p>

<p>Criminal law &wkey;>878(2) — General verdict of guilty, referable to either count, not erroneous, if evidence supports one count, though not other.</p> <p>Where an indictment- charged in separate counts two offenses, first, the manufacturing of whisky, and, second, the possession of .a still, and there was a general verdict of guilty, referable to either count, the judgment of conviction is not erroneous, where abundant evidence existed to warrant the jury in finding that accused was in joint possession with others of a still or other apparatus, even if there was a failure of proof as to the other count.</p> <p>«gxssFor other oases see same topic and Klil-M UMBER in all Key-Humbered Digests and Indexes</p>

Martin, Judge. Newt Henderson was convicted of a violation of the prohibition, laws, and lie appeals.

Groyson, Judge. Ed S'h-aw was convicted of violating the prohibition laws, and he appeals. The record shows a certified transcript of the proceedings had in the inferior criminal court of Mobile county; and also shows an appeal bond executed by defendant on appeal from the inferior court to the circuit court, not certified. There appears no complaint on brief statement made by the solicit- or after the cause reached the circuit court.

<p>1. Criminal law <§=3ÍI53(5) — Trial court has .discretion as to whether witness shall be put under the ruie.</p> <p>The trial court has discretion as to whether witnesses shall be put under the rule, and where this discretion is not abused the ruling will not be reviewed.</p> <p>2. intoxicating liquors &wkey;>233(l) — Evidence of trapdoor in room where whisky found immaterial.</p> <p>In a prosecution for possessing prohibited liquors, testimony showing a trapdoor in the floor of the room whore the whisky was found kvas immaterial; no whisky having been found in the receptacle reached by the trapdoor.</p> <p>3. Criminal law <§=693/ 696(5) — Objection •and motion to strike answer to question un-objected to comes too late.</p> <p>In a prosecution for possessing prohibited liquors, where no objection was made to a question calling for an answer that there was a trapdoor in th<>. floor of the room where whis-ky was found, an objection .to the answer and motion to exclude it comes too late.</p> <p>4. Criminal law <&wkey;351 (I) — Evidence of defendant’s statement that key to feed room was lost ivas relevant.</p> <p>In a prosecution for possessing intoxicating liquors, where the whisky was found in a feed room in defendant’s sale stable, the door t.o which was locked, and possession of the key thereto had a direct bearing on who was in possession of the feed room, permitting evidence that defendant tpld an officer making the search that the key to the lock on the feed room door was lost was not error.</p> <p>5. Criminal law <§=3 1044 — Where no motion made to exclude solicitor’s remarks, no question is presented for review.</p> <p>Where, on objection to remarks of solicitor, there was no motion to exclude the remarks, no question is presented for review.</p> <p><@=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

L. Brewer, Tudge. Eley Mahan was convicted of a. violation of the prohibition laws, and he appeals. Counsel insists that the evidence was not sufficient to justify the verdict and judgment, citing 94 South. 134; 92 South. 94. The evidence was in conflict, and presented a question for the jury.

Greene, Judge. Action by Lois T. Brooks, as administra-trix, against tbe Sloss-Sheffield Steel & Iron Company. From a judgment denying a motion to retax costs, defendant appeals. Affirmed. Certiorari denied by Supreme Court in Ex parte Sloss-Sheffield Steel &• Iron Co., 209 Ala. 264, 96 South. 83. Acts 1919, p. 884, is unconstitutional and void. Const, 1901, §§ 68, 104, 281.

Fort, Judge. Ike Parsons was convicted of selling and having in his possession prohibited liquors, and appeals. Certiorari denied by Supreme Court in Ex parte Ike Parsons, 209 Ala. 630, 96 South. 720. Leading questions are improper, and should not be put to a witness. Weatherly v. N., C. & St. L., 166 Ala. 575, ■ 51 South. 959 ; 40 Cyc. 2422; Blunt v. Strong, 60 Ala. 572.

Jones, Judge. Action on promissory note by H. L. Galloway against J. K. Day. Judgment for plain- tiff, and defendant appeals. The facts sufficiently appear in the separate opinions of the court. Payment of the purchase money for land sold under a bond for title cannot be enforced after rescission by the vendor. Frost v. Frost, 11 Me. 235; George v. Stockton, 1 Ala. 137; Winter v. Livingston, 13 Johns. (N. T.) 54; Icely v. Grew, 6 N. & M.' 467; Frazier v. Ryan, 24 Out.

<p>Criminal law <@=3493 — Opinion evidence as to guilt held not to authorize conviction.</p> <p>Witness’ testimony that “I don’t know whether any whisky -was ever manufactured there or not, but I believe it mighty strong,” hold, not to authorize a conviction for manufacturing spirituous liquors.</p> <p><@=>For other cases see same topic and-KEY-N UMBER iñ all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit. Court, Marshall County; W. W. Haralson, Judge.</p> <p>John Seigler was convicted of possessing a still, and he appeals.</p> <p>The evidence was insufficient to convict defendant. IS Ala. App. 245, 90 South. 277; 89 South. 98; 18 Ala. App. 217, 90 South. 16; 18 Ala. App. 116, 90 South. 135; 90 South. 42; 92 South. 94; 18 Ala. App. 470, 92 South. 914; 93 South. 214; 18 Ala. App. 566, 93 South. 59; 89 South. 306.</p> <p>No brief reached the Reporter.</p>

Brickell, Judge. Fred Karthaus was convicted of carrying on business without a license, and he appeals.’ The sale was an executor’s sale, exempt from the payment of license. Acts 1919, p. 396. The statute has reference to regular and legal employment, not to an occasional act. 16 Ala. App. 476, 79 South. 150. When a license to do a general business has been paid, another license cannot be exacted for the doing of a particular act. 143 Ala. 506, 39 South. 297.

<p>1. Indictment and information <&wkey;72 — Indictment for resisting arrest hefd not objectionable because of alternative designation of officer.</p> <p>An indictment charging accused in violation of Code 1907, § 7708, “knowingly and willfully opposed and resisted * * * a deputy or officer of said county in the lawful arrest” of another who was at the time in the actual commission of a public offense, held not. demurra-blé, because of the alternative designation of the officer, it being sufficient to import that he was an officer authorized to make arrests.</p> <p>2. Obstructing justice <&wkey;ll — Requirements of indictment charging offense of resisting officer in arrest of another committing a crime • stated. (</p> <p>An indictment charging the offense of resisting an officer in making the arrest of another, who was engaged in the actual commission of a public offense, with as'much particularity as that used in Code 1907, § 7161, form 92, prescribed/for use where the officer resisted is acting pursuant'to a lawful writ Or process, is sufficient-, under section 7134, stating the requirements of an indictment. _</p> <p>3. Criminal iaw &wkey;s260i( 11) — Appellate court’s . duty as concerns review of evidence after .conviction by court without jury stated.</p> <p>The duty imposed by Acts 1915, .p. 939, § 3, on appellate courts to review convictions of a lower court sitting without a jury, without indulging in any presumption in favor of such lower court, is .not an abrogation of the rule as to the weight to be accorded findings of fact by a trial court, but applies only where the opportunities of the appellate court to consider the evidence are the samé as the trial court had, as in depositions.</p> <p>4. Criminal law <&wkey;564( I) — Venue-held insufficiently established.</p> <p>Under Code 1907, § 7140, proof of venue is jurisdictional, and without it a conviction cannot be sustained, and where it only appears that the offense charged happened “out at I-,” and there is no showing as to the county or the jurisdiction of the court, jurisdiction is-insufficiently shown.</p> <p>5. Criminal law <&wkey;304(6, 9) — Courts judicially know location of incorporated town and charters or special statutes concerning it.</p> <p>Courts judicially know that an incorporated town-is located in its certain county, and will take judicial notice of the charters of municipal corporations and special statutes conferring special powers upon incorporated or chartered municipalities.</p> <p>6. Obstructing justice <&wkey;>Í6 — Showing held insufficient to sustain conviction for resisting officer attempting to arrest another.</p> <p>A showing that one was “cursing” and “cursing pretty loud,” in the absence of any showing that a woman was present so as to make it an offense, under Code 1907, § 6217, and a showing that it was done in the presence of ah officer authorized to- make an arrest, all of which were material and which the state was under the burden of proving, held insufficient to sustain conviction under an indictment charging accused resisted an officer attempting to make a lawful arrest of one in the actual commission of a public offense.</p> <p>fC — .Ti-nr otter cases see sa'me topic and KEY-NUMBER m all Key-Numbered Digests and indexes</p>

G'pldsby, Judge. Charley New was convicted of'manufaetur-ing prohibited liquors, and appeals. Where the evidence is not sufficient to discharge the burden necessary to overcome the presumption of innocence, the general charge should' be given in. favor of the defendant. Mitchell v. State, 18 Ala. App. 119, 89 South. 98; Mills v. State, 17 Ala. App. 493, 85 South. 867; Adams v. State, 18 Ala. App. 143, 90 South. 42; Clark v. State, 18 Ala.

<p>Appeal from Circuit Court, Monroe County; John D. Leigh, Judge.</p> <p>Willis Johnson -was convicted of murder in the second degree, and he appeals.</p> <p>The following charges were requested by and refused to the defendant:</p> <p>“Charge 0. The court charges the jury that in attempting to arrest a person without a warrant, unless the offense is committed in the officer’s presence, it is the duty of the officer attempting the arrest to inform the person attempted to be arrested of his authority and the cause of the arrest.</p> <p>“Charge D. The court charges the jury that, under the facts shown by the evidence in- this case, Gus Hightower was not authorized to arrest or attempt to arrest the defendant without informing defendant of his authority and the cause of the arrest.</p> <p>“Charge E. The court' charges the jury that, under the evidence in this case, the State lias failed to show that Gus Hightower was legally authorized to attempt the arrest of the defendant, and that, in attempting to arrest the defendant, he was committing a trespass, which the defendant had a right to resist, provided such resistance was not greatly disproportionate to his threatened injury.</p> <p>“Charge C — 2. The court charges the jury that under the evidence in this case you are not justified in finding that the defendant knew of the official character of the deceased:”</p> <p>If deceased was a regular deputy, his absence from the state- for over a year rendered his appointment functus 'officio. 22 R. C. L. 560; 29 Cyc. 1404; 19 Ind. 356, 81 Am. Dee.' 403. It was 'error 'to permit the sheriff to testify that he had a deserter’s list, upon which the name of defendant appeared. 114 Ala. 25, 21 South. 127; 89 Ala. 150, 7 South. 824; 3 Ala. App. 318, 57 South. 494 ; 12 Ala. App. 196,' 67 South. 781; 204 Ala. 467, 86 South. 46; 8 Ala. App. 414. 62 South. 997. Charges C, D, E and C-2 were correct and should have been given. 13 Ala. App. 156, 68 South. 578; 75 South. 816.</p> <p>It was permissible to introduce the affidavit and warrant charging defendant -with a felony, in order to show a felony had been committed when the officer killed undertook the arrest. 204 Ala. 476, 85 South. S17. There is no requirement that the appointment of a deputy he in writing. Code 1Ó07, § 5869. The defendant having answered in the negative ,to the question -whether' his name was on a deserter’s list rendered the question harmless. There is no merit in the contention for error in the refusal of charges at defendant’s request. 204 Ala. 476, 85 South. 817.</p>

A. Pearce, Judge. Marion Nalls was convicted of violating the prohibition laws, and he appeals. By special pleas defendant interposed’ the defense that the state had no jurisdiction over the subject-matter of the offense charged, since the adoption of the Eighteenth Amendment to the federal Constitution and passage.by Congress of a National Prohibition Act (41 Stat. 305) had effected to supersede the state laws.

; S.F. Hobbs, Judge. ' Action in detinue and trover by Dabbs & Tannehill against W. E. Qurb. Prom a judgment for plaintiffs, defendant appeals. Certiorari denied by Supreme Court in Es-parte W. ®. Curb, 210 Ala. 45, 97 South. 111.

<p>1. Appeal and error <&wkey;il 078 (3) — Ruling on demurrer, not insisted on in brief, not considered.</p> <p>Assignments of error relating to rulings on demurrers, when not sufficiently insisted on in the brief, are waived and not considered.</p> <p>2. Appeal and error <&wkey;l048(6) — Refusing to require answer on cross-examination not' reversible error, in view of previous statements. :</p> <p>Where plaintiff as a witness stated that, as she approached the railroad crossing where she was run down by an engine, she was moving slowly, and when she came nearly on the track discovered a train approaching some 280 feet down the track, the refusal to require her to answer a question on cross-examination that she may have said to the doctor that when she first saw the train it was about 20 feet away was not reversible error, in view of her previous statement that she did not remember what she stated to the doctor on the occasion inquired about.</p> <p>3. Evidence &wkey;>553(I)— Submitting hypothet- ' ica! question based on evidence not error.</p> <p>In an action for-a crossing accident, where there was ample evidence to support it, there wgs no error in submitting a hypothetical question as to the distance within which an engine and three cars, running 15 ’miles an hour, could be stopped by the application of an emergency brake. . . .</p> <p>4. Trial <&wkey;>9l — Objection to admission of evidence held too late.</p> <p>Motion to exclude testimony of a witness, which was brought out on direct and cross-examination without objection, will be denied.</p> <p>5. Railroads (&wkey;)35l (22) — Charge on discovered peril hfeld erroneous.</p> <p>A charge .which fastens liability on defendant for injury at a crossing, if it did not, on discovery of plaintiff’s perilous position, so regulate the speed of the train as to bring it to a stop, and which ignores the proposition that defendant’s servants must have discovered her perilous position .in time to have avoided the injury, is erroneous.</p> <p>6. Railroads &wkey;>338 — injury avoidable after peril is discovered actionable.</p> <p>■Where the peril of a person on a crossing could, have been diseoyered in time to avoid injury by the exercise of due care on the part of the railroad’s servants, and if the injury was the result of failure to perform defendant’s duty, plaintiff may recover, although guilty of culpable negligence.</p> <p>7. Appeal and error <&wkey;9l6(2) — Trial presumed to have been had on plea of general issue.</p> <p>The record did not disclose that any plea was filed to a count, and judgment entry recited that trial was had on issue joined, it will he presumed that trial was had on the plea of the general issue.</p> <p>8. Negligence <&wkey;H7, 119(3) — Special plea of contributory negligence essential.</p> <p>Under the plea of the general issue, no acts of contributory negligence could be shown, nor could such acts, in the absence of a special plea, defeat recovery, if plaintiff was otherwise entitled thereto.</p> <p>9. Railroads &wkey;a35l(22) — Charge on discovered peril held proper under pleadings.</p> <p>A charge authorizing recovery, if plaintiff was so near the track as to be in danger of being struck by a train,, and this was known to defendant’s servants in time for them to have stopped or slowed down so as to avoid a collision, held proper under pleadings showing negligence after discovery of peril.</p> <p>10. Trial <&wkey;260(l) — No error in refusing charge covered by charges given.</p> <p>Error cannot be predicated on the refusal of charges covered by charges given.</p> <p>11. Trial <$=»251 (8)— Charges on doctrine of stop, look, and listen held properly refused as inapplicable.</p> <p>In an action for injuries at a crossing, where no question of initial negligence was in issue, and the case was tried under- a count charging subsequent negligence, it was proper to refuse -defendant’s instructions on the doctrine of stop, look, and listen.</p> <p>©=»For other cases see samé topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>12. Trial &wkey;s252(l) — Charge not based on facts properly refused, '</p> <p>Where there were no facts in the case jus-, tifying the giving of a requested charge, no error was committed in its refusal.</p> <p>13. Trial <&wkey;251 (8) — Charge on wanton negligence held inapplicable.</p> <p>Where defendant was not charged with willful and wanton negligence, there was no error in refusing a requested charge relating thereto.</p> <p>14. Railroads <@=^350(33) — Negligence as to automobile driver discovered in peril held for jury.</p> <p>Where there was evidence on the part of plaintiff that she was in a perilous position on ¡ defendant’s tracks, which was known by defendant’s servants in time to have avoided injury, and evidence on the part of defendant that plaintiff was suddenly placed in such position by the use of the forward instead of the reverse gear of her automobile, and that such position was attained when the engine was within a few feet of her, the question of liability was for the -jury.,, . , » ¡</p> <p>15. Appeal and erfor <&wkey;1078(1)— Érrors not insisted on in brief not considered.</p> <p>Assignments of error, not insisted on in the brief and argument, will not be considered.</p> <p><§is>For other ’cases see same topic and KB r -N UMBER, in all Key-Numbered Digests and Indexes</p>

<p>Appeal from Circuit Court, Jefferson County; J. Q. Smith, Judge. ■ .</p> <p>E. W. Stanford, having recovered judgment against the Norwood Transportation Company, and levy of execution being had on certain property, the Birmingham Realty Company interposed its claim, and, on the trial of the claim suit, there was judgment for claimant, and plaintiff appeals.</p> <p>This charge, and others to like effect, were requested by and refused to the plaintiff:</p> <p>“I charge you gentlemen of the jury, that; if the jury bélieve that the transportation company was in possession of the property when it was levied on, then you must find for the plaintiff, unless the Birmingham Realty Company has established to your reasonable satisfaction that there was a valid lien for rent owed by the transportation company.”</p> <p>Affirmative charge should not be given, where there is evidence or inferences unfavorable to the party asking it. 190 Ala. 229, 67 South. 513; 171 Ala. 88, 55 South. 135; 2 Ala. App. 531, 56 South. 822; 121 Ala. 471, 25 South. 733; 190 Ala. 157, 67 South. 265; 96 Ala. 406, 11 South. 417; 29 Alá. 240; The legal fiction of corporate existence may be disregarded in a case where a corporation is so organized and' controlled as to make it merely Instrumental, or an adjunct to another corporation. 219 Fed. 827, 135 C. C, A. 497 ; 234 Fed. 41, 148 C. C. A. 57; (C. C.) 139 Fed. 496; 66 Md; 354, 7 Atl. 608; 95 Tex. 51, 65 S.. W. 27, 55 L. R. A. 861; 84 Pa. 321; 202 Pa. 596. 52 Atl. 92; 177 Fed. 825, 101 C. C. A. 39. The doctrine that, where a party has sued and obtained judgment against a corporation, he is thereafter estopped to deny its corporate existence, does not apply to a claim suit, where the claimant comes in as an individual,, and not as a shareholder. 196 Ala, 234,. 72 South. 48;- 109 Ala. 586, 19 South. 845; .80 Ala. 351;' 190 Ala. 683, 67 South. 420 ; 82 Ala. 102, 2 South. 468; 21 O. J. 1059.</p> <p>No brief reached the Reporter.</p>

<p>1.- Burglary t&wkey;9(i/2) — Breaking and entering house essential to conviction.</p> <p>There can be no conviction for burglary unless there was a breaking into and entering of the house in question.</p> <p>2.' Burglary <&wkey;45 — Whether there was a breaking and. entering held for jury.</p> <p>Evidence that witness shut a door leading to a bedroom- just before eating supper, and while she was eating supper she heard a noise like the bolt of that door being turned, and defendant was found under the bed fn that room, held to authorize submission to the .jury of the question whether there was a brehking and entering.</p> <p>3. Burglary &wkey;>45 — Whether defendant entered house with intent to steal held for jury.</p> <p>Whether a defendant found under the bed of prosecuting witness entered the house with intent to steal held for the jury.</p> <p>4. Criminal law <&wkey;763, 764( I) — Requested instruction that defendant did not enter .house with intent to steal held invasive of province of jury. ■,</p> <p>In a prosecution for burglary, a, requested instruction that jury should not find that defendant entered the house with intent to steal held invasive of the province of the jury.</p> <p>5. Criminal law <&wkey;8f4(3) — Request not predicated on evidence refused. ></p> <p>A request not predicated on the evidence will be refused.</p> <p>&wkey;»For other eases see same topic and KEr-NuMRlfiR in ail Key-Numbered Digests and'Indexes</p> <p>6. Burglary <&wkey;46(2) — Requested instruction relating to breaking and entering held misleading.</p> <p>A requested instruction that, if jury are .not convinced beyond all reasonable doubt that a door or window was opened by defendant and he entered the house with intent to steal, the jury cannot convict him, held misleading.</p> <p>cg^sFor other cases see same topic and KEY-N UMBER in all Key-Numbered Digests and Indexes</p>

.Action by William G. Caffey against the Alabama Machinery & Supply Company for damages, rescission of contract, etc. Judgment for plaintiff in an amount less' than prayed for, and he appeals. Certiorari denied, 209 Ala. 466, 96 South. 459. A party who has been wronged should be awarded such damages as will make him whole. 8 B. O. L. 431; 75 Ind. App. Ill, 127 N. ¡E. 813; 76 Va. 372; 54 Pa. Super. Ct. 1; 178 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953; 121 U. S. 264, 7 Sup.

L. Brewer, Judge. • Leslie Whatley' was convicted of seduction, and appeals. The letter, dated September 7, 1920, introduced in evidence by the prosecution, is as follows: “Dear Sybil: I told you if you told I was the daddy of your baby I would kill you, if you come to court against me. I will see you there. “From ' Leslie Whatley.” No conviction may be had on a charge of seduction on the uncorroborated testimony of the woman upon whom the seduction is charged.

C. B. Gwin, Judge. Habeas corpus proceeding by Alex Owens and Ophelia Emons against Cinda Gibbons. From a' judgment or decree for respondent, petitioners appeal’ Counsel argues for error in the judgment, but cites no authorities. In the absence of a bill of exceptions, the appellate court must assume that the conclusion of fact and judgment were sustained by the evidence. I-Iowze v. Powers, 16 Ala. App. 373, 77 South. 985; Hall v. First Nat.

Martin, Judge. Tip Cox was convicted of having carnal-knowledge of a girl under 16' yfears of age; and he appeals. No brief reached the Reporter. No brief reached the Reporter.

Martin, Judge. J. Y. Gustin was convicted of uttering a check with intent to defraud, and appeals.

<p>1. Criminal ¡aw <§=>1086(2) — Record held sufficient to confer jurisdiction for prosecution of. a violation of the liquor law.</p> <p>Where, in a prosecution for a violation of the prohibition law, the record showed the complaint upon which prosecution was commenced in the county court, warrant of arrest, appearance bond, and bond for appeal to the circuit court, reciting that defendant was convicted for violating the prohibition law, and was fined a hum of $100, together with the costs, it was sufficient to confer jurisdiction upon the circuit court, notwithstanding a noneomplianee by the trial judge with Code 1907, § 6726, in that the record did not show the minutes or judgment of the county court.</p> <p>2. Criminal law <&wkey;l032(5) — Plea of misnomer cannot be raised for the first time on appeal.</p> <p>Where a complaint in a liquor prosecution was subject to a plea of misnomer, in that defendant was designated by his initials only, the plea, not having been filed in the lower courts, could not be raised for the first time on appeal.</p> <p>3. Intoxicating liquors &wkey;>238(l) — On undisputed evidence held error to refuse affirmative charge for defendant.</p> <p>In a liquor prosecution, the court erred in refusing the affirmative charge to defendant, where the evidence was undisputed that the whislcy upon which the prosecution’ was based was found in a house in which defendant had no possession or dominion except such as vested in him as landlord.</p> <p>4. Criminal law <&wkey;744 — Where evidence is undisputed, question of law is raised.</p> <p>Where the evidence is without dispute, it becomes a question of law for the court, and not one of fact for the jury. .ttot other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>

W. Haralson, Judge. George Farmer was convicted of violating the prohibition law, and appeals. The mere presence of one where whisky is being made is not evidence of his guilt. Lee v. State, 18 Ala. App. 566, 93 South. 59; Guin v. State, ante, p. 67, 94 South. 788; Moon v. State, ante, p. 176, 95 South. 830; Morris v. State, 18 Ala. App. 456, 93 South/ 61. No brief reached the Reporter.

<p>Homicide <&wkey;189 — Evidence admissible to show general nature and gravity of previous difficulties.</p> <p>In prosecution for assault with intent to murder, where evidence as to which of the parties was the aggressor was sharply conflicting, evidence was admissible to show the general nature and gravity of former difficulties between the parties, though not to show the details and particulars thereof.</p> <p>^=3For other cases see same topic and KEY-NUMBER in ail Key-Numherod Digests and Indexes</p>

W. Haralson, Judge. Adolphus Biddle was convicted of distilling, and appeals. The evidence was not sufficient to justify a conviction. Moon v. State, ante, p. 176, 95 South. 830; Lee v. State, 18 Ala. App. 566, 93 South. 59. No brief reached the Reporter.

C. B. Gwin, Judge. Bob Hardeman was convicted of manslaughter in the first degree, and appeals and petitions for writ of habeas corpus. Petition denied; The court trying this cause is not a constitutional court, and not authorized by law to hold or try this defendant. Acts 1915, pp. 280, 549, 809; Acts 1919, pp. 525, 260, 1039; Local Acts 1919, p. 62. s Habeas corpus capnot be substituted for an appeal. Minto v. State, 9 Ala.

W. Haralson, Judge. George Lee was convicted of violating- the prohibition law, and appeals. There was no evidence tending to show that whisky had been made, and defendant was entitled to the affirmative charge as to count 1. Lee v. State, 18 Ala. App. 566, 93 South. 59; Seigler v. State, ante, p. 135, 95 South. 563; Eillmore v. State, 18 Ala. App. 334, 92 South. 94; Hammons v. State, 18 Ala.

Aline Kirkley was convicted of manslaughter in the first degree, and appeals. Charge 12, refused to defendant, is a substantial copy of charge 34, set out in the report of Black v. State, 5 Ala. App. 8T, 59 South. G92. In a case where self-defense is involved, it is error to refuse to give the charge at defendant’s request designated No. 3.

<p>Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.</p> <p>Tom Horn was convicted of selling prohibited liquors and appeals.</p> <p>“Last fall a year ago” is not sufficient to fix the time of the commission of the offense.</p> <p>If the crime was committed in the fall of 1921, it was committed subsequent to Au- • gust, 1921. Webster’s Int. Diet.</p>

. Appeal from Circuit Court, Covington County; W. L. Parks, Judge. Teen alias Earnie Peoples was convicted of murder in the second degree, and appeals. Affirmed. i ’ C. B. Puller, of Opp, and A. Whaley, of Andalusia, for appellant. Counsel argue questions raised on the trial, but, in view of the opinion, it is not necessary that the brief be Imre set out. In view of the opinion, it is not necessary that brief of counsel be here set out.

<p>Intoxicating liquors @=3226 — Admission of affidavit and warrant charging manufacture of prohibited liquors held reversible error.</p> <p>Admission in evidence, over objection, of an affidavit and Warrant, charging accused and others with manufacturing prohibited liquors, for the purpose of corroborating state’s main witness in a prosecution for manufacturing whisky, held reversible error, in the absence of evidence tending to connect the papers with the pending prosecution.</p> <p><@=>J?or other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes</p>

Gamble, Judge. Walt Dawkins was convicted of violating the Prohibition Law, and appeals. Evidence that defendant was standing near a still, without more, is not sufficient to convict him of distilling. Hanson v. State, ante, p. 249, 96 South. 655; Guin v. State, ante, p. 67, 94 South. 788. The evidence of defendant’s activity at the still was sufficient to go to the jury.

<p>1. Criminal law <@a=693 — Objection after question answered held too late.</p> <p>An objection to a question after th'e question is answered is too late.</p> <p>2. Arson &wkey;*33 — Evidence of discovery of women’s tracks leading to accused’s home held admissible.</p> <p>In a prosecution for arson testimony that women’s tracks were discovered about the burned building, leading to accused’s home held, admissible-</p> <p>3. Criminal law <&wkey;>l 043(3) — Objection to evidence on specific grounds prevents review of other grounds.</p> <p>Where, in a prosecution for arson, testimony that women’s tracks were discovered about the destroyed building was objected to on the ground that many other people had been there and that there was nothing to connect accused therewith, an objection that the statement that tlie*tracks were “women tracks” was a conclusion of the witness could not be considered on appeal, as the assignment of specific grounds waived all others.</p> <p>4. Arson <&wkey;3l — Disputes and threats before offense committed held admissible to show motive.</p> <p>In a prosecution for arson, disputes between accused and injured party as to division of crops, and threats or declarations made before the offense charged, were admissible to show motive.</p> <p>5. Criminal law &wkey;>l090(16) — Motion for new trial, ruling and exception thereto appearing in record proper only, held not reviewable.</p> <p>Under Acts 1915, p. 722, the overruling of a motion for a new trial was not presented for review, where the motion, ruling of the court, and exception thereto appeared in the record proper only.</p> <p>other cases see same topic and KBY-NUMBER. in all Key-Numbered Digests and Indexes</p>

Not being shown to be qualified, it was error to allow plaintiff to testify as to the saving in operating cost of an automobile by use of the appliance, the subject of the shipment. 5 Ency.. Iflv. 530, 569; A. G. S. v. Burgess, 119 Ala. 555, 25 South. 251, 72 Am. St. Rep. 943; 22 O. J. 516; L. & N. v. Lan-ders, 135 Ala. 504, 33 South. 482.

W. Haralson, Judge. Henry Parcus was convicted of violating the prohibition law, and appeals. Affirmed. The mere fact that defendant was discovered some distance from the still, without evidence of his possession, control, or situation of the still upon his lands, is insufficient to convict him- Mitchell v. State, 18 Ala. App. 119, 89 South. 98; Clark v. State, 18 Ala. App. 217, 90 South. 16; Jones v. State, 18 Ala. App. 116, 90 South. 135; Adams v. State, 18 Ala.

<p>Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.</p> <p>Clifford Acker was convicted of grand larceny, and appeals.</p> <p>These charges, requested by defendant, were refused:</p> <p>“No. 3. If the jury believe all the evidence beyond a reasonable doubt, they should find the defendant not guilty.’’</p> <p>“No. 5. If the defendant did not steal the cotton, and said to Walker that he did not get or steal the cotton, and that Walker would get his money if he would not prosecute, and this he said and did through friendship for Anderson, then he should be acquitted.”</p> <p>No brief reached the Reporter.</p> <p>No brief reached the Reporter.</p>

Hail, Judge. Action on common counts by Joseph Stern-berg and another; doing business as the Louisiana Clothing Company, against J. Bon-feld, doing business as J. Bonfeld & Co. From a judgment over for defendant, plaintiffs appeal. Under the circumstances of the case, it was error to render judgment for defendant. Bucking v. Hauselt, 9 Hun, 633; Craig & Co. v. Pierson Co., 179 Ala. 535, 60 South. 838; Barnard v. Irvin, 8 Ala. App. 544, 62 South. 963.

S. Williams, Judge. Hillery Whigham was convicted of grand larceny, and he appeals. No brief reached the Reporter. No brief reached the Reporter.

Fort, Judge. Frank Jones was convicted of violating the prohibition law, and appeals. Although defendant had liquor in his possession, other evidence is required to show him guilty of selling liquor. 17 Ala. App. 12, «1 South. 348; 17 Ala. App. 399; 18 Ala. App. 409, 92 South. 529; 18 Ala. App. 69; 18 Ala. App. 62, 88 South. 375; 18 Ala. App. 28, 89 South. 100. No brief on original hearing reached the Reporter.

<p>Appeal from Circuit Court, Barbour County ; J. S. Williams, Judge.</p> <p>Tom Roman was convicted of possessing a still, and he appeals.</p> <p>Counsel argue for error in the rulings discussed, but without citing authorities.</p> <p>The defendant was without right to require the state to offer the still in evidence. 1 Mayfield’s Dig. p. 320, 37; Acts 1919, p. 12, § 12; Peek v. State, ante, p. 370, 97 South. 374. The confession made before the justice of the peace was admissible. 4 Michie’s Ála. Dig. 237. Where facts are fully proven, the court may so state .in charge to the jury. Miller v. State, 107 Ala. 40,119 South. 37.</p>

<p>Appeal from. Circuit Court, Tallapoosa County; S. L. Brewer, Judge.</p> <p>Bud Hill was convicted of having in his possession prohibited liquors, and appeals.</p> <p>' Certiorari denied by Supreme Court in Ex parte Hill, 100 South. 315.</p> <p>The evidence in'this case was insufficient upon which to base a conviction. Adams v. State, 18 Ala. App. 143, 90N South. 42Jones v. State, 18 Ala. App. 116, 90 South. 135; Hill v. State, 19 Ala. App. 483, 98 South. 317.</p> <p>No brief reached the Reporter.</p>

<p>1. Jury <®=»84 — Statutes under which jurors are selected liberally construed.</p> <p>Statutes under which juries are selected are liberally construed.</p> <p>2. Jury &wkey;>ll6 — Substitution of juror for one drawn not ground for quashing venire.</p> <p>Substitution of a juror for one drawn, summoned, and qualified, is not generally ground for quashing the venire. ’</p> <p>3. Criminal law <&wkey;9l8(3) — Substitution of jurors for those selected by defendant from list entitles him to new trial.</p> <p>Defendant has a right to rely upon correctness of names of jurors furnished him, and where he selects certain jurors by name without fault or neglect on his part, and one or more jurors are substituted for them without authority, without his knowledge or consent, he is entitled to a new trial after conviction.</p> <p>On Rehearing.</p> <p>4. Criminal law &wkey;>l08l — Clerk’s certificate held to perfect defendant’s appeal within statute. . .</p> <p>The certificate of the clerk- that “defendant gave notice in writing of an appeal to the Court of Appeals of Alabama” perfected defendant’s appeal within Gen. Acts 1915, p. 712, § 7, requiring entry of record that defendant appeals, or filing of written statement by defendant or attorney.</p> <p>5. Criminal law <&wkey;l083 — Jurisdiction to hear motion for new trial lost when defendant appeals.</p> <p>Trial court loses jurisdiction to hear a motion for new trial when defendant appeals.</p> <p><§z^For other cases see same topic and Kft'M-N UMBBR in all Key-Numbered Digests and Indexes</p>

Hail, Judge. Action by Woodie Sandefer against Jefferson county to recover fees as deputy sheriff. Judgment for plaintiff, and defendant appeals. The deputy sheriffs of Jefferson county being upon a salary basis, the fees provided by Acts 1915. p. 557, belong to the county. Local Acts 1915, p. 874.

Prosecution by the City of Huntsville ágainst E. P. Miller for doing business without a license. Prom ' a judgment of conviction, defendant appeals. The amended affidavit upon which the trial was had is as follows: “•Before me, Carter H. Rice, clerk of .the circuit court, personally appeáred PI.

<p>Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.</p>

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

<p>Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge. Ollie Fincher was convicted of assault and battery, and he appeals.</p>

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

<p>Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge. Howard Kelly was convicted of receiving or concealing, etc., stolen property, and he appeals. Affirmed.</p>

<p>Appeal from Circuit Court, Mobile County; Joe] IV. Goldsby, Judge.</p>

<p>Appeal from Morgan County Court; W. T. Lowe, Judge.</p>

<p>Appeal from Circuit Court, Madison County; Osceola Kyle, Judge.</p>

<p>Appeal fro.m Circuit Court, Mobile County; Claude A. Grayson, Judge.</p>

<p>Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge. -Harwell G. Davis, Atty. Gen., for the State.</p>

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