Volume 211 — Mississippi Reports

1. <bold>Criminal procedure — accused only eyewitness.</bold> The rule that when the accused is the only eyewitness to the homicide, his or her exculpatory testimony must be accepted as true is not applicable when that testimony is substantially contradicted in material particulars by credible witnesses, physical facts or facts of common knowledge. 2. <bold>Criminal procedure — contradictions of only eyewitness to</bold> <bold>homicide.</bold> When the version of the accused as the only eyewitness in a homicide prosecution was that she was struck on the side of the head by the deceased with a stick of stove wood and that she cut him to protect herself from further attacks, was materially contradicted by the dying declaration of the deceased made under a sense of impending death and was further contradicted by the absence of any visible effects of a serious blow on the head and by the absence of any blood where the accused asserted that the cutting took place, the jury was authorized to consider these contradictions on the issue of the truth or falsity of defendant's version. 3. <bold>Trial — view of scene of homicide — discretion of trial</bold> <bold>court.</bold> A view of the scene by the jury in a homicide case is within the discretion of the trial court to grant or refuse, and there was<page_number>Page 101</page_number> no abuse of that discretion in refusing such a request made more than a month after the homicide and there was nothing to show that the conditions at the scene had remained the same. 4. <bold>Criminal procedure — circumstantial evidence — instruction</bold> <bold>based on — when not proper.</bold> When all the facts of a homicide have been covered by the direct testimony of an eyewitness, and the issue is whether that testimony is true or untrue, the case is not one founded on circumstantial evidence and an instruction based upon circumstantial evidence is properly refused. 5. <bold>Trial — instructions — on weight of evidence and assuming</bold> <bold>facts not in evidence.</bold> An instruction which would have told the jury that in considering the testimony of two named witnesses their testimony should be weighed carefully "taking under consideration their bias, prejudice and interest in the case, if any", was properly refused because (1) it was on the weight of the evidence and (2) it assumed bias, prejudice and interest on the part of the named witnesses when no such evidence was before the jury. Headnotes as approved by Holmes, J.

1. <bold>Taxation — contractors drilling oil wells — payment under</bold> <bold>protest.</bold> In order to recover a tax paid to the state tax commission by a contractor for drilling oil wells, when no such tax was due, it is not necessary that the payment shall have been made under protest. Secs. 10110, 10112 Code 1942. 2. <bold>Taxation — indemnities paid to driller of dry well — not</bold> <bold>taxable.</bold> Where in order to induce a driller of oil wells to drill a test well or wells in a prescribed area on his own lands or leases, the owners of adjacent lands or leases agree to contribute a part<page_number>Page 200</page_number> of the expenses or costs thereof in case the drilling results in a dry hole or holes, the contributions so made after such a result are not taxable under the statute levying taxes on contractors who drill oil wells for a fixed price or compensation, such contributions being in the nature of indemnities rather than compensation. The tax is not due by the contractor unless the work is done for another person and when the finished well whether dry or a producer belongs to such other who pays the price or compensation leaving aside the case not involved of a subcontractor. Sec. 10110 Code 1942. Headnotes as approved by McGehee, C.J.

1. <bold>Trusts — statute of limitations.</bold> Where without any agreement between the two, the purchaser of property buys it with the money of another the trust thereby created in favor of the party whose money is thus used is an implied, and not an express, trust and is subject to the statute of limitations, Sec. 746, Code 1942. 2. <bold>Guardian and ward — trusts — statute of limitations.</bold> Where the guardian of a non compos mentis ward procured an order of court for the sale of the ward's property and thereafter took the money derived from the sale and purchased land in her own name and for her own use and benefit, she acquired the land subject to a constructive trust in favor of the ward, as to which, however, she did not become a trustee in the proper and technical sense of the term, but became liable to be made a trustee by a decree in equity, and such liability arose upon the instant of the transaction and at the same instant the statute began to run in her favor and after 31 years became a bar. Sec. 746 Code 1942. Headnotes as approved by Kyle, J.

1. <bold>Materialmen's liens — creature of statute.</bold> The lien under the statute for the protection of subcontractors, materialmen and laborers is purely a creature of that statute, did not exist at common law, and in its absence materialmen and laborers would be only general creditors of the contractor. Sec. 372 Code 1942. 2. <bold>Materialmen's liens — necessity of stop notice to owner.</bold> Although the statute for the protection of subcontractors, materialmen and laborers should be liberally construed to effectuate its purposes, the persons mentioned have no lien on the money owed by the owner to the contractor until they give the statutory stop notice to the owner. Sec. 372 Code 1942. 3. <bold>Materialmen's liens — subrogation to rights of principal</bold> <bold>contractor.</bold> Under the statute aforementioned, the materialmen or laborers are entitled to a lien only when the contractor is entitled to one, and there is something due or to become due to the principal contractor from the owners. 4. <bold>Materialmen's liens — debt due solely by contractor.</bold> When the materialmen and laborers have dealt solely with contractor and looked only to him for their pay, and the only contract by the owner was with the contractor who was to do a completed job of contruction for a fixed contract price, and the claims of the materialmen and laborers are based therefore upon the aforementioned statute, their claims could be enforced<page_number>Page 591</page_number> against the owner only as to such rights as the contractor had against the owner when the stop notices were served on him. 5. <bold>Contracts — building contracts — amendment as to method of</bold> <bold>payment and payment.</bold> Where a building contract provided for a completed job at a fixed price, and provided the times and methods of payments, the owner and the contractor may amend the contract and when the owner borrowed from the bank on his promissory note, and on his sole credit during the course of construction, a sum largely in excess of what he had originally contracted to pay at the time and this sum was deposited to the credit of and was used by the contractor, the owner was entitled to credit for the amount so paid, as against stop notice subsequently served upon him. 6. <bold>Materialmen's liens — payment to principal contractor.</bold> In the absence of a statutory provision to the contrary, the owner may make payment to his principal contractor in any method and at any time, including payments by promissory note held by third parties and even though the note had not been paid until after stop notice had been given to the owner. 7. <bold>Materialmen's liens — payment to contractor on other debts</bold> <bold>than the contract.</bold> Payments made by owner to contractor for work other than on the contract against which materialmen's liens would exist are not to be credited on the contract to the prejudice of the lien claimants, nor are they to be prejudiced by the failure of the contractor to plead or claim that the payments were made on items other than that covered by the contract price. 8. <bold>Evidence — receipt — extrinsic evidence.</bold> A receipt can be explained by extrinsic evidence. 9. <bold>Materialmen's liens — payments by owner on contract price —</bold> <bold>when interest allowable.</bold> Where the contract between the owner and the building contractor has been amended by an agreement that the owner upon his own credit would borrow and pay to the contractor a substantial sum in advance of the date of payment under the original contract, and that the contractor would pay interest on the sum so advanced, the owner is entitled to credit for the amount of the interest as against claimants of statutory liens.<page_number>Page 592</page_number> 10. <bold>Materialmen's liens — amount of balance due by owner —</bold> <bold>claimants may show.</bold> Claimants of statutory liens against the balance due by the owner to the building contractor may show that the actual amount due is more than that which the contractor avers is the correct amount. Headnotes as approved by Ethridge, C.