Volume 222 — Mississippi Reports

<bold>1. Sunday — note dated and received on secular day — signed on</bold> <bold>Sunday.</bold> Where note was dated on a secular day, and payee received it on secular day, that endorsers had, unknown to payee, signed on a Sunday did not relieve them of liability. Headnote as approved by Hall, J.

<bold>1. Criminal law — Mayor's Court — jurisdiction — affidavit</bold> <bold>prerequisite.</bold> Where motorist was convicted in Mayor's Court on charge of drunken driving, and it appeared that affidavit charging offense was not signed until day following conviction, Mayor's Court did not have jurisdiction, and, on appeal to Circuit Court, no jurisdiction was acquired. <bold>2. Criminal law — same — same — same.</bold> An affidavit is a prerequisite to prosecution in Mayor's Court for misdemeanor, and Mayor's Court has no jurisdiction without an affidavit. Headnotes as approved by McGehee, C.J.<page_number>Page 132</page_number>

<bold>1. Criminal law — evidence — conflicting — unreasonable —</bold> <bold>contradictory — accused only eyewitness.</bold> In homicide prosecution, testimony of defendant was conflicting and unreasonable, and contradicted testimony of all other witnesses as to events immediately prior to killing, and, therefore, it was not required that it be accepted as true even though defendant may have been sole surviving eyewitness to the killing. <bold>2. Homicide — evidence — sustained manslaughter conviction.</bold> Evidence sustained conviction for manslaughter. Headnotes as approved by Arrington, J.

<bold>1. Bills and notes — settlement of claim — sufficient</bold> <bold>consideration — directed verdict proper.</bold> In action on promissory note, where plaintiff-promisee, at time of execution thereof, has had a valid claim against defendant-promisor for breach of contract, and note had been given in settlement of such claim for less than full amount of claim, there was sufficient consideration for note, note was enforceable, and plaintiff was entitled to a directed verdict. Headnote as revised by Roberds, P.J.

<bold>1. Witnesses — eight year old child — competent witness.</bold> In prosecution for manslaughter, victim's son, who was eight years old and in third grade when killing occurred, and nine years of age and in the fourth grade at time of trial, attended Sunday School, and whose narrative of the circumstances in connection with the killing was clear, straightforward and coherent, which showed a possession of a capacity and ability to observe events and to recollect and communicate them, to understand questions and to frame and make intelligent answers, with a consciousness of the duty to speak the truth, was a competent witness. <bold>2. Homicide — dying declaration — admissible.</bold> Where police officer testified that on questioning victim in hospital emergency room, she had said she was dying and was going to die, and further testified that victim's narrative as to material facts<page_number>Page 489</page_number> of stabbing was complete, that she was at the time without blame and had no means to defend herself, established identity of killer and related attendant circumstances, was clear and concise and showed she knew what she was saying, such statements were sufficient to show that victim realized that she would soon die, and admissible as a dying declaration, even though the officer testified the victim had died before she could finish her statement. <bold>3. Homicide — self-defense — evidence — sustained manslaughter</bold> <bold>conviction.</bold> Issue of defendant's having acted in self-defense was for jury, and evidence amply sustained conviction for manslaughter. Headnotes as approved by Lee, J.

<bold>1. Criminal law — manslaughter — culpable negligence — operation</bold> <bold>of automobile.</bold> Evidence sustained conviction of manslaughter as result of the killing of the deceased by the defendant as the result of his culpable negligence in the reckless operation of an automobile. Headnote as approved by Roberds, P.J.

<bold>1. Larceny — evidence — juries — essentials of crime committed —</bold> <bold>accomplice.</bold> In prosecution for grand larceny, State's evidence warranted jury believing, beyond a reasonable doubt, that defendant and his co-indictee had feloniously taken, stolen, and carried away 139 bushels of soybeans, the property of third party. <bold>2. Criminal law — larceny — corpus delicti established — aliunde</bold> <bold>confessions.</bold> In such prosecution, corpus delicti was fully established prior to introduction of confessions. <bold>3. Criminal law — larceny — caretaker — taking from employer</bold> <bold>constituted.</bold> Where co-indictee, who was employee of third party, had key to employer's commissary, where beans were stored, employee did not have possession of beans, but was a mere caretaker and his taking and conversion of beans constituted larceny and same would be true as to his accomplice. <bold>4. Criminal law — instructions — assuming defendant's guilt —</bold> <bold>erroneous.</bold> Instruction assuming guilt of defendant was erroneous, for it is basic that instructions must not assume the guilt of the defendant, neither may they assume the existence or nonexistence of controverted facts, which are material. Headnotes as approved by Lee, J.

<bold>1. Criminal law — larceny of sacks of tung nuts — evidence —</bold> <bold>sacks admissible.</bold> In prosecution for larceny of sixty-seven sacks of tung nuts, admission in evidence of two sacks bearing identification marks same as marks put on sacks used by complaining witness' employers taken from pile at mill where accused dumped a truck load of sacks of nuts, under facts of case, was not error, although there was evidence that other persons had sacks with such markings in their possession. <bold>2. Larceny — proof — ownership — as laid in indictment.</bold> In prosecution for larceny, the State must prove ownership of stolen property as alleged in the indictment beyond a reasonable doubt.<page_number>Page 707</page_number> <bold>3. Larceny — ownership — proof of — instructions.</bold> In prosecution for larceny, where ownership of stolen property is laid in a person named, the jury must be instructed that the ownership of the property must be proved as laid. <bold>4. Larceny — instructions — ownership of named person.</bold> Instruction complained of, which described property allegedly stolen as "the personal property" of a named person, meant that jury could not convict unless the evidence showed beyond every reasonable doubt each of the elements of the crime, including the ownership of the property by the named person. <bold>5. Criminal law — instructions — circumstantial evidence.</bold> There is no justification for a charge that circumstantial evidence is legal and competent, since its competency is for the Court, and all admitted testimony must be taken to be competent. <bold>6. Criminal law — instructions — circumstantial evidence.</bold> Instruction to the effect that "circumstantial evidence is competent and legal in a criminal case" was not in proper form, but where remaining part of instruction made it clear that jury must believe from evidence beyond every reasonable doubt that accused was guilty of crime charged before they could convict him, giving instruction did not constitute prejudicial error. Headnotes as approved by Kyle, J.

<bold>1. Contracts — evidence — claims properly denied.</bold> In suit by plaintiff against his brother to recover amount allegedly due as result of business transactions between parties, evidence sustained Chancellor's findings that claims were without merit. Headnote as approved by Roberds, P.J.

<bold>1. Clouds on title — tenants in common — purchase of lands in</bold> <bold>common estate — by Administratrix — from purchaser at</bold> <bold>judicially confirmed sale — no breach of trust shown.</bold> In suit by heirs to cancel as clouds on their title Administratrix-heir's claims to land in decedent's estate acquired by her from interim grantee of third party purchaser at judicially confirmed<page_number>Page 879</page_number> sale, evidence, on various issues, including issue as to applicability of statutory inhibitions against Administratrix's acquisition of estate property and cotenant's acquiring adverse title to common property, sustained finding that there had been no breach of trust, that property was purchased by third party at judicial sale in good faith for a valuable consideration and without collusion, and that such purchaser at sale and interim grantee had not acted as agents for Administratrix. Sec. 619, Code 1942. <bold>2. Clouds on title — same — same — same — statutory inhibition —</bold> <bold>not applicable.</bold> Under facts of case, which showed that at time Administratrix-heir acquired property decedent's estate had wholly parted with title thereto and property no longer constituted property of decedent's estate, the statutory inhibition against the direct or indirect acquisition by an administrator of property of the estate of the decedent had no application. Sec. 619, Code 1942. <bold>3. Clouds on title — same — same — same — statutory inhibition —</bold> <bold>not applicable.</bold> Under facts of case, which showed that at time Administratrix-heir acquired common property the cotenancy that had existed had been terminated by the judicially confirmed sale, the rule which prevents a cotenant from acquiring the full title to the common property to exclusion of other cotenants had no application. <bold>4. Executors and administrators — purchase of lands in common</bold> <bold>estate — in good faith — by Administratrix — from purchaser at</bold> <bold>judicially confirmed sale — title as against heirs.</bold> Where estate property was purchased by third party at judicial sale in good faith and without collusion, Administratrix-heir thereafter acquiring property took good title as against other heirs. Sec. 619, Code 1942. <bold>5. Witnesses — dead man's statute — direct claim against estate</bold> <bold>— indirect claim.</bold> Provisions of statute prohibiting persons from testifying to establish own claim against estate of deceased person, originating in lifetime of deceased, applies only to direct claim of witness and not to an indirect one. Sec. 1690, Code 1942. <bold>6. Appeal — witnesses — findings of fact — review.</bold> Where findings were amply supported by testimony of other witnesses whose competency was not challenged, error, if any, in permitting to testify witnesses whose competency was challenged, would not require reversal. Sec. 1690, Code 1942. Headnotes as approved by Holmes, J.<page_number>Page 880</page_number>