Volume 216 — Mississippi Reports

<bold>1. Criminal procedure — homicide — defense not asserted or</bold> <bold>relied on.</bold> When in a homicide case there were no witnesses who saw the entire affray wherein the homicide occurred and the accused did not testify, neither the jury nor the Court on appeal may attribute to the accused a defense or justification which he does not assert or rest upon. <bold>2. Homicide — manslaughter.</bold> When under the evidence the jury was warranted in finding either that the use of a deadly weapon was an exercise of unnecessary force, or that the homicide while not premeditated, was, under the circumstances, unjustified, a conviction of manslaughter will be upheld. Headnotes as approved by Roberds, J.<page_number>Page 113</page_number>

<bold>1. Equity procedure — motion to exclude complainant's evidence —</bold> <bold>effect of.</bold> On a motion to exclude the evidence for the complainant all the facts which complainant's evidence fairly tends to establish together with all the reasonable inferences to be deduced therefrom plus the admissions made of record by the parties and pleadings should be assumed to be true. <bold>2. Tax deeds — description — parol testimony.</bold> Where the description in a tax deed is good on its face, parol testimony is competent in applying the description to a particular tract of land. <bold>3. Tax deeds — maps of survey of town lots and copy thereof —</bold> <bold>when admissible.</bold> Where a town lot had been sold at a tax sale, and the tax deed made, according to a map in the office of the clerk of the town, which was legible at the time of the sale and was then in general use, and from which a copy had been made while still legible and the copy had been used by various people to check lots, both the original map, although faded, and the copy were admissible for whatever they were worth. <bold>4. Tax title — confirmation — admissions in defendant's answer.</bold> In a suit to confirm a tax title defended on the ground that the description in the tax deed was insufficient, admissions in the defendant's answer which served to definitely locate the town lot in controversy as the same lot sold for taxes and conveyed by the tax deed, would be considered as conclusive of any doubt. <bold>5. Tax sales — trustee in bankruptcy.</bold> The trustee in bankruptcy may elect to pay the ad valorem taxes on land of the bankrupt or instead he may sell it subject to the taxes. Headnotes as approved by Arrington, J.

<bold>1. Drainage districts — counties — taxation.</bold> It is within the discretion of the board of supervisors whether to pay a drainage district tax assessed against land owned by the county and used as a county penal farm. <bold>2. Drainage districts — schools — taxation.</bold> A school district which does not own as many as 640 acres of land is not liable for drainage district taxes assessed against its land used for school purposes. Headnotes as approved by Hall, J.

<bold>1. Criminal procedure — evidence illegally obtained not</bold> <bold>admissible.</bold> Evidence obtained by an illegal search and seizure, without a warrant for arrest when no misdemeanor was being committed in the officer's presence, is inadmissible.<page_number>Page 264</page_number> <bold>2. Intoxicating liquors — searching and seizures — unlawful</bold> <bold>arrest of third party.</bold> Where officers were acting under a search warrant to search the store, and the premises thereabout, of the store owner named in the warrant, they were not authorized to search the person and possession of a third party who happened to be on the premises near the store, and when the said third party, although committing no offense in the presence of the officers, ran from the scene and was immediately chased by the officers and at the end of the chase they found that the party was then in the possession of a suitcase containing intoxicating liquor, the arrest of the third party without a warrant therefor was unlawful and the evidence obtained thereby was inadmissible against said party. Headnotes as revised by Ethridge, J.

<bold>1. Criminal procedure — motion for a new trial — newly</bold> <bold>discovered evidence — support on oath required.</bold> To maintain a motion for a new trial based on ground of newly discovered evidence both the accused and his attorneys must make affidavit that during the trial they were ignorant of the newly discovered facts or must testify on oath to that effect. <bold>2. Criminal procedure — motion for new trial — newly discovered</bold> <bold>evidence — insufficient, when.</bold> A motion for a new trial based on ground of newly discovered evidence will be overruled when the facts alleged to have been newly discovered would not have induced a different verdict. <bold>3. Homicide — uncontradicted testimony of eyewitnesses —</bold> <bold>identity of accused.</bold> The undisputed testimony of a single eyewitness who identified the accused as the person whom he saw shoot the deceased is sufficient to sustain a conviction. <bold>4. Trial — homicide — testimony heard by court but not by jury.</bold> Testimony heard by the court, but not by the jury, of conflicting statements made by accused presents no ground of error. Headnotes as approved by Arrington, J.

<bold>1. Animals — highway — permitting to run at large on.</bold> Under the statute which makes it unlawful for any person owning or having under control any livestock to permit such stock to run at large on certain highways, it is not enough to impose liability to show simply that the stock was upon the highway but it must be further shown that the owner or person in control negligently or knowingly permitted the animals to run at large. Chap. 200 Laws 1948, Sec. 4876-5, Code 1942. <bold>2. Animals — enclosure within adequate fence.</bold> In an action for damages to automobile which collided with mules on the highway at night, when the owner showed by undisputed evidence that he had placed the stock in a pasture enclosed by a good wire fence, and that without his knowledge the animals had broken out and strayed upon the highway, the owner was entitled to a peremptory charge of no liability. Headnotes as approved by McGehee, C.J.

<bold>1. Criminal law — attempt to rape — overt act.</bold> In a prosecution for attempt to rape, an overt act toward the commission of the offense must be sufficiently shown. Sec. 2017, Code 1942. Headnote as approved by Arrington, J.

<bold>1. Insurance — acceptance of premium after loss.</bold> Where the owner of property insured it against fire and paid in cash all the premium except a small part and for that gave his note to a bank, which upon its endorsement by the insurance agent, the bank paid the amount thereof to the agent who immediately distributed the proceeds along with the cash paid portion of the premium, the fact that after the fire the note was paid by the agent through funds supplied by or for the insured did not bind the insurer on the alleged ground that it had accepted the final part of the premium after knowledge of the loss.<page_number>Page 577</page_number> <bold>2. Insurance — assignment of policy — waiver — authority of</bold> <bold>issuing agent.</bold> The provision in a policy of fire insurance that an assignment of it shall not be valid except by the written consent of the insurance company is for the benefit of the insurer and may be waived by it and the agent who issued the policy has the authority to consent to the waiver. <bold>3. Insurance — waiver in behalf of purchaser of insured</bold> <bold>property.</bold> Where the insured property had been sold by the owner but no formal transfer of the policy was made to the purchaser but the latter before the fire went to the issuing agent of the insurer and requested a transfer of the policy to him as the substituted owner and the agent assured the new owner that this would be done and that the latter would be protected, the conduct of the agent was as effectual to transfer the policy to the new owner as if such a transfer had been formally made by the company itself. Sec. 5706, Code 1942. <bold>4. Insurance — retention of premium after knowledge of change of</bold> <bold>ownership.</bold> The fact of the change of ownership made known to the issuing agent as aforestated, became at the same time the knowledge of the insurer and the further fact that the insurer did not return or offer to return the unearned portion of the premium until after suit was filed was a relevant fact for the consideration of the jury as to whether or not the agent understood that the plaintiff, the new owner, was to have the benefit of the unexpired term of the insurance and was to be protected during such unexpired term under the policy. Headnotes as approved by McGehee, C.J.

<bold>1. Sixteenth sections — tax titles — unexpired 99-year lease.</bold> Where sixteenth section lands are under 99-year unexpired leases, and no showing is made that fee simple titles thereto were granted during the only period when such titles to sixteenth section lands could be conveyed, tax sales and private grants made during the existence of the leases, unexpired, had no effect except for and during the unexpired periods. <bold>2. Sixteenth sections — unexpired 99-year leases — adverse</bold> <bold>possession.</bold> While and during the period when sixteenth section lands are held under unexpired 99-year leases, the twenty-five years adverse possession is not applicable presumptively or otherwise so as to confer any rights upon the occupants beyond and until the termination of the leases. Sec. 6596, Code 1942. Headnotes as approved by Ethridge, J.

<bold>1. Intoxicating liquors — witnesses — sheriff, when not required</bold> <bold>to reveal name of his informant.</bold> Although the sheriff had been informed that a load of whiskey would be delivered that night at a certain place and on this information he proceeded to a concealed position nearby in the public highway and from this position learned through his senses of sight and smell that the accused was delivering whiskey and thereupon arrested him, the sheriff would not as a prosecuting witness be required to name his informant inasmuch as the arrest was made by the sheriff on his own knowledge. <bold>2. Arrest — misdemeanor committed in presence of officer.</bold> A misdemeanor is being committed in the presence of an officer when he acquires knowledge thereof through his senses.<page_number>Page 896</page_number> <bold>3. Searches and seizures — objection not available to person who</bold> <bold>has no interest in the premises.</bold> One who had no interest in the premises is not in position to invoke objection that the officer went thereon without a search warrant. Headnotes as approved by Roberds, P.J.