Volume 220 — Mississippi Reports

<bold>1. Automobiles — collision — evidence — sustained verdict for</bold> <bold>defendant.</bold> In action for damages arising out of motor vehicle collision, evidence was sufficient to sustain verdict for defendant. <bold>2. Automobiles — statement of plaintiff's driver — properly</bold> <bold>admitted.</bold> In such action, wherein evidence as to physical and mental condition of plaintiff and driver of his pick-up, while they were in hospital, was conflicting, driver's statement in presence of plaintiff that he was driving 50 miles an hour, was properly admitted for consideration of jury. <bold>3. Automobiles — instructions — excessive speed of plaintiff's</bold> <bold>truck.</bold> In such case, defense instructions in regard to excessive speed of plaintiff's truck were warranted by the evidence. Headnotes as approved by Lee, J.

<bold>1. Criminal law — indictment — amendment of — description of</bold> <bold>property stolen.</bold> In prosecution for burglary wherein accused was charged in indictment with stealing seven spools of "J L" barbed wire of value of ten dollars per spool, allowance of amendment to indictment by inserting therein "USS Lyman" as part of description instead of "J L" was not prejudicial as accused knew that the property he was charged with stealing was spooled barbed wire. Sec. 2532, Code 1942. <bold>2. Criminal law — indictment — amendment of — to show true</bold> <bold>possessor of property burglarized.</bold> In such case, allowance of amendment to indictment to show that possessor and operator of warehouse burglarized was in fact mother of person named in indictment, was not prejudicial to accused, but was in fact a protection against another prosecution for the same crime. Sec. 2532, Code 1942. <bold>3. Criminal law — instructions — confessions.</bold> Instruction that it is the duty of jury to decide on law and facts of a claimed confession was properly refused as an incorrect statement of law, since admissibility of confession is for the determination of trial judge, and, when admitted, jury considers confession in the light of evidence by which it was obtained and gives it such weight and credibility as they think it is entitled. <bold>4. Criminal law — instructions — presumption of innocence as a</bold> <bold>witness — properly refused.</bold> Refusal of instruction on presumption of innocence concluding with statement that presumption of innocence has power and strength of witness in Court, corroborating everything leading to defendant's innocence and denying everything tending to show guilt of defendant, was not error, since trial judge has no right to instruct on weight of evidence or on strength of a presumption. <bold>5. Criminal law — instructions — confessions.</bold> Refusal of instruction that no matter what had been testified as to words spoken by defendant, no such words form basis of a conviction,<page_number>Page 29</page_number> but State was required to show guilt beyond and above his words before conviction was justified was not error as such instruction was misleading and incorrect in that confession may be considered by jury along with other testimony in determining guilt of defendant. Headnotes as approved by Roberds, P.J.

<bold>1. Equity — evidence — deed procured by fraud — set aside.</bold> In action by aged grantor to set aside deed to close friend alleging fraud in its procurement, fiduciary relation, mistake and mental weakness of grantor, where testimony was conflicting, evidence sustained finding that deed was procured by fraud. Headnote as approved by Ethridge, J.

<bold>1. Divorce — cruel and inhuman treatment — alimony — attorney's</bold> <bold>fee — granted.</bold> In wifes' successful action for divorce evidence sustained finding that husband had been guilty of habitual cruel and inhuman treatment, that wife was without sufficient means to support herself and to pay her own solicitor, and that husband was able to pay alimony and wife's solicitor's fee.<page_number>Page 117</page_number> <bold>2. Appeal — attorney's fee on — divorce.</bold> Supreme Court would allow solicitor for wife one-half of fee which was allowed for his services by trial court for defending husband's appeal from decree in divorce action. Headnotes as approved by McGehee, C.J.

<bold>1. Appeal — continuance — granting or refusal.</bold> Trial judge has a broad discretion in the granting or refusal of continuances unless is appears that he has clearly abused his discretion. <bold>2. Continuance — absent witness — refusal not abuse of</bold> <bold>discretion.</bold> In prosecution for assault and battery with intent to kill, where attempt to subpoena witnesses, who were long time residents and present in jurisdiction when Court convened, was not made until two days before trial, refusal of trial court to grant motion based upon absence of such witnesses was not abuse of Court's discretion. <bold>3. Appeal — statements in brief — not part of record — will not</bold> <bold>be considered by Supreme Court.</bold> Statements in brief of counsel ascribed to trial judge and forming basis of contention that accused was denied a fair and impartial trial because of trial judge's prejudice cannot be considered on appeal where not a part of record made in trial court. Headnotes as approved by Holmes, J.

<bold>1. Contracts — defective plans and specifications — construction</bold> <bold>contractor — not liable for defects caused by.</bold> A construction contractor who has followed plans and specifications furnished by the owner, architect, or engineer, and which have proved to be defective or insufficient, will not be responsible to the owner for loss or damage which result after the work has been completed, solely from the defective plans and specifications, in absence of any negligence on the part of the contractor or any express warranty by him as to the plans and specifications being free from defects. <bold>2. Counties — construction contract — verdict against law and</bold> <bold>evidence.</bold> In suit by County against contractor and surety, for failure to perform contract to construct classrooms and gymnasium in accordance with plans and specifications, for cost of refinishing gymnasium floor which buckled up within one year guarantee period contained in contract, verdict for County was against law and evidence, where evidence failed to prove wherein contractor failed to follow plans and specifications prepared by County's architect, or that alleged defects were result of faulty workmanship, or use of defective materials; or that defects in building resulted from<page_number>Page 360</page_number> insufficient plans and specifications, or from contractor's failure to follow them. Headnotes as approved by Gillespie, J.

<bold>1. Criminal law — evidence — obtained under void search warrant</bold> <bold>— objection on appeal — came too late.</bold> Where no objection was made by defendant to introduction of evidence offered by State as result of search under a search warrant void because returnable to a past date, defendant's objection to such testimony could not be made for the first time on appeal. <bold>2. Criminal law — trial — voluntary absence of defendant —</bold> <bold>waiver of certain rights.</bold> Where defendant voluntarily absented himself from trial in liquor prosecution case, he was in no position to complain that he had no opportunity to object to the introduction of evidence obtained under a void search warrant. Headnotes as approved by Holmes, J.

<bold>1. Automobiles — injury to pedestrian — evidence supported</bold> <bold>verdict for.</bold> In suit by pedestrian against motorist for injuries sustained when struck by automobile driven by motorist, evidence supported verdict for pedestrian. <bold>2. Appeal — trial — improper reference to liability insurance —</bold> <bold>by plaintiff — by defendant.</bold> As a general rule, reference by plaintiff or plaintiff's attorney during trial that defendant's liability is covered by insurance is highly prejudicial and constitutes sufficient cause for trial court to declare a mistrial, or for Supreme Court to reverse case on appeal but where defendant, in cross-examination, informed jury that she had insurance covering accident upon which suit is brought, she was not in a position to complain concerning action of trial judge in refusing to grant mistrial because of plaintiff's improper reference to insurance agent's visit to plaintiff while in hospital. <bold>3. Appeal — trial — instructions — refusal of not error.</bold> In such case, no error was committed by trial court in refusing certain instructions for defendant.<page_number>Page 546</page_number> <bold>4. Appeal — trial — rule invoked — witness violating rule —</bold> <bold>permitted to testify when.</bold> Matter of permitting witness, who had remained in courtroom after rule had been invoked and who had heard part of testimony of other witnesses, to testify rested largely in discretion of the trial judge, and Supreme Court would not reverse case because of ruling of trial judge on such questions where it appeared there had been no abuse of discretion. <bold>5. Negligence — damages — award not excessive.</bold> In such case, an award of $3,000 was not excessive. Headnotes as approved by Kyle, J.

<bold>1. Appeal — suspends time or performance of judgment — when</bold> <bold>judgment becomes effective.</bold> The general rule is that an appeal suspends the time allowed by the judgment or order appealed from for the performance of a condition affecting a substantive right or obligation, so that the<page_number>Page 705</page_number> party who is to perform the condition has, for its performance, the specified time commencing from the time that the judgment or order of the appellate court becomes effective. <bold>2. Appeal — same — same — affirmance by Supreme Court —</bold> <bold>suggestion of error — effect of.</bold> After rendition of judgment of affirmance by Supreme Court on appeal, the filing of a suggestion of error had effect of suspending such judgment of affirmance, so that parties, who had three months for performance of condition of judgment, had three months after disposal of suggestion of error by Supreme Court to perform such condition. Sec. 1990, Code 1942; Rule 14, Rules of Supreme Court. Headnotes as approved by Kyle, J.

<bold>1. Automobiles — instructions — referring jury to declaration —</bold> <bold>to ascertain issues — not reversible error — where other</bold> <bold>instructions presented decisive issue.</bold> In suit for injuries sustained when defendant's overtaking automobile struck plaintiff's motorbike while making a left turn, instruction to the effect that plaintiff was required to prove all material allegations in his declaration, was erroneous in that it referred the jury to the declaration in order to ascertain the issues, but such error did not warrant a reversal in view of other instructions which clearly submitted the decisive issue. <bold>2. Automobiles — instructions — negligence — proximately caused</bold> <bold>collision — considered as a whole.</bold> Instruction that plaintiff was required to prove that defendant's alleged negligence proximately caused the collision was erroneous in that it failed to require finding that such negligence proximately caused or contributed to collision, but such error did not work a reversal where all instructions considered together removed any basis for misunderstanding caused by the omission. <bold>3. Automobiles — motorbike collision — evidence — supported</bold> <bold>verdict for defendant.</bold> In such suit, evidence supported finding that plaintiff had failed to give the required signal before turning to left, and the resultant verdict for defendant. Headnotes as approved by Lee, J.

<bold>1. Criminal law — evidence — res gestae — inadmissible hearsay —</bold> <bold>reversible error.</bold> In arson prosecution, evidence of a witness that another told him the night of the fire that defendant was going to give him $200 to burn the building involved and that she wanted the place burned, was not part of the res gestae, but was inadmissible as hearsay, and where it was the only evidence tending to connect defendant with the crime, its admission was reversible error. <bold>2. Criminal law — evidence — res gestae — exception to hearsay</bold> <bold>rule.</bold> Evidence designated as an exception to the hearsay rule under the rule of res gestae, includes acts and words which are so closely connected with the crime or facts in issue, as to constitute a part of the transaction itself, and they must be spontaneous and so closely related in time to the occurrence as reasonably to appear to be evoked and prompted by it. <bold>3. Criminal law — arson — evidence — insufficient to sustain</bold> <bold>conviction.</bold> In arson case, where State's evidence, excluding inadmissible hearsay testimony connecting defendant with the burning of the building, was wholly circumstantial and insufficient to go to the jury on the issue of guilt vel non, defendant was entitled to her requested peremptory instruction and case would be reversed and defendant discharged. Headnotes as approved by Ethridge, J.

<bold>1. Corporations — attachment in chancery — discovery — evidence</bold> <bold>— sustained decree against manager for excess salary.</bold> In suit by Hotel Corporation begun as an attachment in chancery for an accounting and for discovery and recovery of all amounts due Corporation, including overpayments of salary, which defendant as manager of Corporation paid herself out of corporate funds, covering period of about six years, evidence supported decree against defendant for excess salary and impressing a lien on assets in hands of defendant garnishee to satisfy same. Headnote as approved by Hall, J.