Volume 99 — Mississippi Reports

Hon. J. Q. Robbins, Chancellor. Bill by state of Mississippi oi} the relation of the attorney-general against the’ Cumberland Telegraph & Telephone Company, to enjoin it from doing business in alleged violation of the anti-trust law and to recover penalties. Demurrer overruled and defendant appeals.

Hon. B. L. Bullard, Judge. In this case, Threefoot Bros. & Co., had execution levied on property claimed by Mrs. Myrtle Stone. From a judgment denying the claim, Mrs. Myrtle Stone appeals. The facts are fully stated in the opinion of the court. The execution ought to have been quashed, and the claimant’s motion to that effect ought to have been sustained. This enrolled, judgment was in favor of Three-foot Brothers & Company against the City News Company, composed of L. Gr.

Hon. A. E-. Weathersby, Judge. Suit by the Pole Stock Lumber Company against the Oakdale Lumber Company on notes for the purphase money of land. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. We come now to consider the real defense offered by the defendant to the payment of the notes sued on, under its plea of fraud, and what we conceive to be palpable error on the part of the trial court.

Hon. J. L. Buckley, Judge. Dorcas King was convicted of unlawful retailing and appeals. The facts are fully stated in the opinion of the court. Appellant should have been permitted to present her special plea of autrefois acquit to the jury at the beginning of the trial when the issues in the case were being presented to the jury. American and English Encyclopedia of Pleading and Practice, page 629', section 5.

EOon. Sam Whitman, Jr., Chancellor. Bill by Mary Simmons against John H. Turner. From a decree overruling a demurrer to the bill, defendant appeals. The facts are fully stated in the opinion of the court.

<p>Appeal from the circuit court of Tallahatchie county.</p> <p>Sam C. Cook, Judge.</p> <p>The opinion in this case is rendered on a suggestion of error. The case on original hearing being reported in 53 South. 626'.</p>

Hon. Paul B. Johnson, Judge. Suit by O. Y. Barlow against D. J. Wade et al. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of tbe court. Appellee is wholly without standing in court. Sbe sues, on the deed of 1900', but the proof shows there was no consideration for this deed. If she had sued on the deed of 1003, for which and when the consideration was paid, the suit would have shown on its face that it was barred.

Hon. W. H. Hardy, Judge.' Suit by Jas. J. Byers et al. against W. E. McDonald. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court. We respectfully submit and insist that the grounds set out by appellee in his motion for the peremptory instruction granted in this case, are wholly insufficient to support said motion under the law controlling this case.

Hon. Paul B. Johnson, Judge. Thelma Collins was convicted of unlawful retailing and appeals. The facts are fully stated in the opinion of the court. Search, I think, will hardly disclose a more glaringly oppressive deprivation of one’s right to a fair and impartial trial.

Hon. Paul B. Johnson, Judge. Thelma Collins was convicted of the illegal sale of liquors and appeals. The facts are fully stated in the opinion of the court. The district attorney in his argument referred to the house of the defendant as a low dive where whiskey and beer are kept, where girls stayed and where men visited, and added “You know what the means.” Means what? That it has any tendency to prove that she sold Charles Jacobson whiskey?

Host. J. S. Hicks, Chancellor. The facts are fully stated in the opinion of the court. It seems clear to us that the question of complainant’s alienage cannot be raised in a case like this, by individuals.

Hon. W. H. Potter, Judge. Oscar Page was convicted of carrying concealed weapons and appeals. The facts are fully stated in the opinion of the court.

Hon. H. Cassidy, Special Judge. Shit hy R'. N. Miller against S. L, Allen et al. ' From a judgment overruling a demurrer to the bill defendant, Allen, appeals. It is well settled in this state that the covenantee may purchase a paramount title which is being asserted against him, and under which he must ultimately be evicted. This amounts to a constructive eviction and he may sue upon the covenant.

Hon. B. E. Sheehy,.Chancellor. . The chancery court adjudged H. C. Magee and Bich Magee guilty of contempt and they appeal. The facts are fully stated in the opinion of the court.

Hon. H. M. Wilkinson, Judge. Suit by C. M. Brown against the Yazoo & Mississippi Valley Railroad Company. Held: quoting from the syllabus, that “Where a stream running across defendant’s land and thence upon the,plaintiff’s land, during a flood broke through its bank making an opening sufficient to carry all the water ordinarily' running, and through this; new channel the water would have continued to run, if not prevented; held that the…

Appear from the chancery court of Pike county. Hon. J. S. Hicks, Chancellor. Suit by C. V. Ratcliff, administrator, against Lena White et al. Prom a decree directing the money in the insurance policy to lie paid to the father of the insured^ defendants appeal. The facts are fully stated in the opinion of the court. The question is, was this a valid assignment of .the policy or was it an ineffectual attempt to make a will?

Hon. D. M. Miller, Judge. Suit hy Mrs. Eoberta Willoughby against the Mutual Benefit Life Insurance Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the,opinion of the court. A life insurance policy is a mere chose in action, and may he pledged, transferred or assigned just as any other chose in action.

Hon. W. H. Wilkinson, Judge. - Beplevin by B'. H. Huff against D. F. Vaughn et al. From a judgment for plaintiff, defendant appeals. The facts are stated in the opinion of the court.

Hon. D. M. Miller, Judge. Suit by J. I. Godbold against A. C. Seavey and Sons et al. Prom a judgment for plaintiff defendant appeals. The facts as shown by the record are: That one Joe Keene rented land from appellee, Godbold, for the sum of one hundred dollars. It seems that he brought four bales of cotton to market, two of which were claimed to have been raised by his son, Luther Keene, on the land rented from appellee.

Hon. G. G. Lyell, Chancellor. Suit by Hugh Branton et al. against B. B. Buckley et al. From a decree dismissing the bill, complainants appeal. The facts are fully stated in the opinion of the court. We submit that the question to be determined by this court is the same as that we have stated was determined by the chancellor in deciding the demurrer in this case.

Hon. D. M. Miller, Judge. Suit by Mattie Holden against the Mississippi Central Railroad Company. From a judgment for plaintiff, defendant appeals. This is an action for damages brought by the' appellee against appellant railroad company for injury to appellee’s property by obstructing the ingress and egress to and from said property by the construction of a line of railway along a certain street in the city of Brook-haven, known as Flora street.

Hon. C. S. Thomas, Special Judge. Shit by mayor and board of aldermen of the city of Vicksburg against the Vicksburg Water Works Company 'et al. From a… Held: That the city of Biloxi having regularly retained counsel, paid a fixed salary, was not entitled to damages by way of attorney’s fees on the dissolution of an injunction where all the services rendered in procuring the dissolution had been by such counsel. Wilson v. Wilber, 3 111. App. 125, affirmed in 96 111. 454. 3.

Hon. John M. Mitchell, Judge. Suit by Mrs. Ida Sanderson and others against the St. Louis & San Francisco Railroad Company et al. From a judgment for plaintiff against… Held: and it is especially unnecessary in proving a relation under the circumstances of this case where the evidence shows that everybody was allowed to ride without the payment - of fare. Railroad v. Beardsley, 79 Miss. 417, 30 South. 660; Kurt v. Railroad Go., 40 Miss. 391; note, Railway v. O’Keefe, 61 Am.

Hon. W. A. Roane, Judge. William Miles was convicted of an assault and appeals. The facts are fully stated in the opinion of the court. We say that this record shows that it is uncertain as to who was'the agg’ressor in the difficulty. If we are correct as to this, the court should have admitted the testimony offered to he proven by the appellant and Henry Lyon.

Hon. Paul B. Johnson, Judge. Rosa Pederre was convicted of unlawful retailing and appeals. The facts are fully stated in the opinion of the court.

Hon. W. A. Roane, Judge. O. 0. Hampton was convicted of embezzlement and appeals. Tbe facts-are fully stated in the opinion of the court. Held: as is correctly stated in the syllabus, that “where an indictment is amended without the entry of the authorizing order on the court’s minutes as required by Code of 1906, section 1509, the court, on objection being made, even as late as a motion for a new trial, is authorized to make the entry nunc pro tunc.” In the case of Peebles…

Hon. Samuel Whitman, Jr., Chancellor. Bill by A. J. Lyon & Company against the Southern Pacific Eailroad Company. Demurrer to bill overruled and defendant appeals.

Hon. J. F. McCool, Chancellor. Suit by W. T. Rideout, as administrator of J. H. Rideout, deceased, against W. H. Mars, to recover the balance of first insurance premium on life insurance policy, written by deceased as agent, for the Union Central Life Insurance Company. From a decree for defendant, complainants appeal. The facts are fully stated in the opinion of the court.

Hon. G. A. McLean, Judge. George L. Carter was convicted of seduction, and appeals. The facts are fully stated in the opinion of the court. filed an elaborate brief dealing with the facts and citing the following authorities: Norton v. State, 72 Miss.'128; Ferguson v. State,' 71 Miss. 805; Stewart v. Graham, 93 Miss. 251; I. C. R. R. Co. v. McGowan, 92 Miss. 663.

Hon. Samuel Whitman, Jr., Chancellor. Suit by W. H. Gallaspy’s Sons Company against Mrs. T. A. Massey, who filed a cross bill. Prom a decree granting the prayer of the cross bill, complainant appeals. The facts are fully stated in the opinion of the court. That a claim made for alimony is personal and that property of the defendant cannot be tied up by describing it in the bill and by a lis pendens notice, see Houston v. Timmerman (Or. 1889), 11 Am. St. Eep. 484.

Hon. W. A. Eoane, Judge. Elbert Gables was convicted of malicious 'mischief and appeals. ....

Hon. Paul B. Johnson, Judge. Bob Harding was convicted of unlawful retailing and appeals. The facts are fully stated in the opinion of the court. The district attorney realized that it was doubtful that the jury would believe an unsupported witness who confessed that he was actuated by motives of revenge or gain rather than the defendant, and to induce them to do so he proceeded to furnish them the reason, or rather motive, that would most likely accomplish this result.

Hon. G. A. McLean, Judg’e. Georg’e Miller was convicted of larceny and appeals. The facts as shown by the record are that accused and two others were indicted for grand larceny. The'jury acquitted the codefendants. The evidence was entirely circumstantial.

Hon. C. L. Dobbs, Judge. Suit by Newton Lumber & Manufacturing Company against H. W. Hoye. From a judgment for plaintiff, defendant appeals. This suit is based upon various items of lumber sold by the plaintiff to the defendant and an itemized account is sworn to; the trial having been commenced in the court of a justice of the peace. There was a counter affidavit denying liability, and setting up certain erroneous items and overcharges..

Hon. Paul B. Johnson, Judge. Hettie Grimes was convicted of an assault and appeals. The facts are fully stated in the opinion of the court. ■ There conld not possibly have been any simple assault under the evidence, committed by appellant.. Particular attention of the court is called to the decision of this court in the case of Bailey v. State, 93 Miss. 79.

Hon. Sam Whitman, Jr., Chancellor. The facts are fully stated in thé opinion of the court. Appellants submit the following authorities in support of their contention that they were entitled to the relief prayed for. ■ (1) Fraud vitiates everything which it touches.

Hon. W. H. Cook, Judge. Ejectment by T. A. Littelle against Creek Lumber Company. From a judgment for defendant, the plaintiff appeals. The appellee sold a lot to one Steadman, who after-wards conveyed to appellant, Littelle. Appellant claiming certain tenement houses on the land, which appellee asserts were to be reserved, an action of ejectment was instituted by appellant against appellee.

Hon. W. A. Henry, Judge. Katie Johnson was charged with sending a threatening letter. She demurred to the affidavit and her demurrer being sustained, the state appeals.

Hon. T. H, Barrett, Judge. G. E. Wilson was convicted of failing to work tke streets of the town of Handsboro and appeals. This is an appeal from a conviction for the failure to work the streets of a municipality. The .case on former appeal is reported in 50 South. 982. It is contended on this appeal that the court below should have sustained the motion to discharge defendant, because no replication had been filed to the plea of former jeopardy.

Hon. Paul B. Johnson, Judge. Ed Myers was convicted of manslaughter and appeals. The facts are stated in the opinion of the court.

Hon. W. A. Henry, Judge. Suit by B. F. Leggitt against N. B. Langford. From a judgment for plaintiff, defendant appeals. The facts are' fully stated in the opinion of the court. Does the lien of the statute attach for the wages not actually earned; for the wages not actually due for actual labor? . This lien did not exist at common law, and as it is derogatory of the common law, an employee to obtain its protection must come within its express terms.

Hon. W. H. Hughes, Judge. John Williams was convicted of the crime of rape and appeals. The facts are fully stated in the opinion of the court. Counsel on both sides filed elaborate briefs dealing only with the facts in the case.

Hon. A. E. Weatheesby, Judge. Lucius Ratcliff was tried and convicted of arson and appeals. The facts of the case are substantially as follows: In April, 1909, the dwelling house of. Elijah Boone was burned in the night time; the fire originated in the smoke house located about six feet from the dwelling house. Lucius Ratcliff was charged with the burning of this house.

Hon. Gr. A. McLean, Judge. Suit- by W. N. Cartledge, sheriff and tax collector, against C. C. Crow. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. Our construction of section 3855 of 1906, is supported by the construction which the legislature has itself given this same act in the laws of 1910.

Hon. J. Q. Robbins, Chancellor. In the matter of the estate of J. T. Gibbs, deceased. Prom an order allowing a claim of the John Deere Plow Company against said estate, E. B. Marshall the administrator appeals.

Hon. E. N. Thomas, Chancellor. -This was a proceeding by the state of Mississippi on the relation of E. H. Nall, land commissioner, against J.… Held: either in possession or in right, at the time of his death, real or personal property, or money or choses in action, in this state, whether such person was a citizen of the state or not, and leave no heir capable of inheriting, or taking the same, all such property, real and personal shall escheat to the state of Mississippi.

Hon. John Mitchell, Judge. This was a suit brought by A. & M. Drusin of New York City, New York, in the justice court of Lee county, Mississippi, against Hinds Brothers & Company, of Tupelo, Mississippi, on an account amounting to sixty-three dollars for goods sold and delivered by appellant to appellee.

Hon. R. L. Bullard, Judge. Suit by Mrs. M. A. Lambert against the Natchez, Columbia & Mobile Railroad Company. From a judgment for plaintiff, defendant appeals. The appellee took passage on a train of the appellant from Topeka, Mississippi, to- Norfield, Mississippi, a junction point with the Illinois Central Railroad Company; it being her intention to connect at the latter point with the Illinois Central train, due about four hours after the arrival of the appellant’s train.

Hon. G-eorge S. Dodds, Special Judge. Suit by Henrietta Woodham et al. against the Cumberland Telephone & Telegraph Company et al., for the death of her husband. From a judgment for plaintiff for twenty thousand dollars defendant appeals. The facts are fully stated in the opinion of the court.

Hon. J. Q. Robbins, Chancellor. This is a bill by Mrs. Pearl Cole against A. J. Cole asking the enforcement of a prenuptial agreement in regard to the conveyance of land. From a decree dismissing the bill plaintiff appeals. The facts are fully stated in the opinion of the court.

Hon. I. T. Blount, Chancellor. Suit by Alvin Lake against J. C. Perry.- Prom a decree in favor of appellee, appellant appeals. The facts are: Appellant filed a hill in chancery to set aside a voidable deed to appellee, made during appellant’s minority, and praying an accounting. This case was appealed at a former term of the court from a decree dismissing the hill, and was reversed. 95 Miss. 550, 49 South. 569.

Hon. Gr. Gr. Lyell, Chancellor. Suit for damages hy Mrs. T. A. Steitenroth et al. against the city of J acts on in the circuit court which was removed to chancery court by injunction. From a decree perpetually enjoining the suit, complainant appeals.

Hon. Sam; C. Cook, Judge. Suit by Emma C. McCandless against Albert Coop-wood, executor. From a judgment for plaintiff, defendant appeals.

Hon. D. M. Miller, Judge. Lee Wiltcher was convicted of murder and appeals. The facts are fully stated in the opinion of the court. It was manifest error, and highly prejudicial to appellant to permit the witness, Bettie Price, to testify over objection that one month before the murder of deceased, that Mrs.- Wiltcher told her that she was going to have her husband killed, and failing in this, she would kill him herself.

TIon. M. E. Denton, Chancellor. Suit by Mrs. Annie E. Irwin and others against the Yazoo & Mississippi Valley Railroad Company. From a judgment dissolving the injunction, and dismissing the hill the complainant appeals. The facts are as follows: The land on which the town of Tunica is located was formerly owned by one Harris.

Hon. W. H. Cook, Judge. Suit by Allen Walker ag’ainst the General Accident, Fire and Life Assurance Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in'the opinion of the court. The provision for notice of injury within ten days from the date of injury is valid and binding. The authorities are multitudinous and harmonious on this point. See Cyl., vol. 1, page 274, paragraph “A” and citations there given. Am. and Eng. Ency.

Hon. N. A. Taylor, Judge. C. W. Osborne was convicted of burning a stock of goods with intent to defraud an insurance company, and appeals. The facts are fully stated in the opinion of the court. The rule with reference to the admissibility of statements and admissions of one conspirator against his fellows is, that after prima facie proof of the existence of' a conspiracy is made, that such statements or admissions, may be heard which were made before the crime was complete.

Hon. Gr. A. McLain, Judge. Suit by S. D. Alexander against L. W. Herring, administrator of tbe estate of C. M. Vaiden, deceased. From a judgment sustaining a demurrer to plaintiff’s declaration, be appeals. The facts are as follows: This is a suit by appellant against appellee, administrator of the estate of C. M. Yaiden, for damages for breach of contract entered into between appellant and appellee, whereby appellant was to operate a sawmill on the estate of said decedent.

Hon. Jno. H. Mitchell, Judge. John T. Carter was charged with murder and convicted of manslaughter and appeals. The facts are fully stated in the opinion of the court.

Hon. H. C. Mounger, Judge. Suit by Barton J. Robinson against the City of Vicksburg. From a judgment for plaintiff he appeals and the city prosecutes a cross appeal. The facts are fully stated in the opinion of the court. The court refused appellant instruction No. 13 directing the jury to find for the plaintiff, and submitted the question of liability to the jury. We submit that this was error under the facts in this case.

<p>Appeal from the circuit court of Winston county.</p> <p>Hon. Gr. A. McLain, Judge.</p> <p>Swinton Permenter was convicted of murder and appeals.</p> <p>The facts are as follows:</p> <p>The appellant was convicted of murder and sentenced to death. He is charged with murdering a young lady, Miss Sharp, a daughter of a neighbor. Appellant and Miss Sharp were near the same age, both minors, and were well acquainted; appellant being a frequent visitor to the Sharp home, and according to some of the evidence attentive to the young lady. One afternoon, shortly after dinner, the young lady left her home, going along the country road to a store, where she made a few purchases, and left there with the intention of going by a neighboring house to use the telephone. After leaving the store she was never seen alive again. About dark, when she had not put in an appearance at home, the neighbors were aroused, and a search was instituted, in which all the neighbors joined. During the early part of the night the appellant was not seen with the searching party, and he became the object of suspicion. It seems from the record he was not looked upon with favor by the father of the young lady, and had been heard to remark that he would get even with the Sharps and other similar remarks. Later in the night he did join the searching-party, and the search continued until daylight, when the body of the young lady was found in a ravine, a short distance from the road. Her skull had been crushed by a heavy instrument of some sort, and her throat had been cut. The crowd was kept back from the body, and during the day, about noon, hounds were put on the trail, and led the searching party to the home of appellant. A question is raised as to the value of the testimony of these hounds, because they were shown to be young, and because of the additional fact that it was at least twenty hours after the homicide before they were put upon the trail. The testimony was admitted, however, over the objection of appellant. In appellant’s pocket was found a handkerchief, which was identified by the members of the young lady’s family as being the one she carried with her the afternoon before. Appellant’s brother says the handkerchief was found at a picnic. The evidence against appellant was entirely circumstantial. He did not testify in his own behalf, nor did his parents testify for him; but an alibi was sought to be proven by various parties who testified that they- saw him about the time, or perhaps shortly before the time, the crime is supposed to have been committed. The trial resulted in a conviction, and an appeal is taken. Among other errors assigned is the giving of the instruction referred to in the opinion.</p> <p>Instruction number 2 given for the state is fatally erroneous. It instructs the jury that they may convict</p> <p>the defendant if circumstantial evidence generates full conviction in their mind beyond every reasonable doubt.</p> <p>In the case of Lipscomb v. State, 75 Miss. 577, the court disapproved this language in an instruction, using the following language:</p> <p>“Pull conviction is not the criterion or degree of proof necessary to convict. It is a loose phrase. There is but one rule in law in this state as to the measure and sufficiency of proof which will warrant conviction. It is that the evidence must engender a certainty of belief beyond a reasonable doubt.”</p> <p>In other words, if the court please, the circumstances must be sufficiently strong not to engender full conviction beyond every reasonable doubt, but certainty of belief, excluding every other hypothesis than that of the guilt of the defendant.</p> <p>An instruction similar to this one was given in Gibson v. State, 76 Miss. 137, but the instruction cured the error pointed out in Lipscomb v. State, and Judge Whitfield approves the instruction, because he says:</p> <p>“It adds to the clause ‘full conviction’ the highest degree of moral certainty and to the exclusion of every reasonable doubt.”</p> <p>In other words, the instruction in the Gibson case informed the jury that circumstantial evidence should be weighed with great caution, and, in effect, that it must exclude every theory except that of the guilt of the defendant. Instruction number two for the state in this case does not do so.</p> <p>The effect of the case of Haywood v. State, 90 Miss. 465, is to hold that a similar instruction to the one now under criticism was not good, because it did not inform the jury that a conviction could not rest on circumstantial evidence, unless every circumstance necessary to convict the defendant was shown beyond every reasonable doubt. The instruction in question is condemned by the Haywood case, because it substituted full conviction for certainty of belief beyond every reasonable doubt, and because it failed to inform the jury that the belief of every necessary fact should be so strong as to exclude every other hypothesis.</p> <p>In the ease of State v. Cohen, 75 Am. St. Rep. 212, an instruction was held erroneous which authorized a jury to convict on circumstantial. evidence unless the state shall prove, beyond every reasonable doubt every link necessary to establish the guilt of the accused.</p> <p>In the case of State v. Trial, 53 S. E. 17, and in the case of Schwantst v. State, 106 N. W. 237, it is held that all the facts and circumstances necessary to convict the defendant must be proved to the same extent as if the whole issue had rested on the proof of each individual circumstance, in cases where it is sought to convict an accused on purely circumstantial evidence.</p> <p>And we wish to call the attention of the court to the .fact that instruction number two given by the state, which we are now criticising, was practically the same instruction condemned in Haywood v. State, 90 Miss. 467, except it eliminated the words that circumstantial evidence was as good as any other kind, and substituted there that it had been used in every age of the common law.</p> <p>In the case of State v. Johnson, 103 N. W. 565, it is held that an instruction is erroneous which informs the jury that it need not be satisfied beyond all reasonable doubt as to each link in a chain of circumstances relied on to convict.</p> <p>The same thing is held in the case of State v. Young, 82 N. W. 420.</p> <p>An instruction is erroneous, it is said, in the case of State v. Sassen,-75 Mo. App. 197, which informs a jury that guilt may be established by circumstantial evidence unless the jury is also informed that evidence must be of sufficient strength to exclude to all moral certainty every other reasonable hypothesis.</p> <p>The same is held in Cunningham v. State, 77 N. W. 60, and in State v. Hudson, 97 Am. St. Rep. 768.</p> <p>We contend that the language used in instruction 2 .that the circumstances should generate full conviction, was not a correct statement of the law; that the jury should have been instructed that the evidence should have been of sufficient strength to exclude every other hypothesis than that of the guilt of the defendant, and that beyond all reasonable doubt. In other words, that every fact necessary to make.the state’s chain should have been proved beyond every reasonable doubt, and it was not sufficient merely to generate full conviction from all the facts and circumstances even beyond every reasonable doubt.</p> <p>The court excluded instruction number 4 asked for the appellant. This instruction was intended to inform the jury, and would have informed them, that circumstantial evidence should be weighed with great caution. It was refused and no other instruction like it was given, and the jury were not instructed upon that important point. The refusal of this instruction was erroneous. Webb v. State, 73 Miss. 461; Pitts v. State, 43 Miss. 486; Nelms v. State, 58 Miss. 362.</p> <p>We do not know upon what theory this instruction was refused.</p> <p>The court also refused instruction number 11 asked by the defendant. This instruction would have informed the jury that if there was any fact proven to their satisfaction which was inconsistent with the defendant’s guilt, that this raised a reasonable doubt, and that they should acquit the defendant. This instruction was in keeping with well-settled law, that the state should make the evidence' so strong as to exclude every hypothesis or every theory other than that of the guilt of the defendant. Therefore, if there was single fact proven and which the jury believed to be a fact, which was inconsistent with the defendant’s guilt, why that raised a reasonable doubt, and the defendant should have been acquitted.</p> <p>In the case of Bowen v. State, 37 So. 233, it is held that the test of the sufficiency of circumstantial evidence in a criminal case is whether the circumstances as proven are capable of explanation upon any reasonable hypothesis consistent with the defendant’s innocence, and if they are capable of such explanation, then the defendant should be acquitted.</p> <p>In Gambrell v. State, 92 Miss. 728, it is held that where there is doubt about the advisability of an instruction being given, the doubt should be solved in favor of the defendant.</p> <p>If there is a probability of the innocence of the defendant, he should be acquitted. Nelms v. State, 58 Miss. 362.</p> <p>Before an accused can be convicted by circumstantial evidence, all the facts must be inconsistent with his innocence. Horn v. State, 81 Am. Dec. 500.</p> <p>The burden of proof rests upon the state to establish the truth of every link in its testimony beyond every reasonable doubt, and the jury should be so instructed. People v. Aihen, 11 Am. St. Rep. 512.</p> <p>Circumstantial evidence should be so strong as to exclude every hypothesis inconsistent with the defendant’s innocence. Sumner v. State, 36 Am. Dec. 561.</p> <p>We respectfully submit that taking the entire record in this case, it does not warrant the verdict rendered.</p> <p>This is a case based upon circumstantial evidence on which the state relies to convict the appellant of the crime charged, and which evidence is absolutely insufficient to establish the guilt of the appellant. While it is true circumstantial evidence may be relied upon to -establish guilt, yet in this case, the proof as shown by the record fails to create a decent suspicion against the defendant, and utterly fails to exclude the hypothesis that another person might have committed the offense, for these and many other reasons the cause should he reversed. Algheri v. State, 25 Miss. 588; Whetson v. State, 12 So. Eep. 661.</p> <p>In the brief of Messrs. Watkins & Watkins for the appellant, it is urged seriously that it was error to grant instruction'No. 2, a careful reading of which I again invite. Comparing it with the instruction given in the Lipscomb case, 75 Miss. 577, it will be observed that in the Lipscomb case .the jury are told that circumstantial evidence must rise so high in the scale of belief, beyond a reasonable doubt, of guilt to generate full conviction. The objection there does not occur in the case at bar.</p> <p>In the Gibson case, 76 Miss. 136, which was affirmed by the court, the very error complained of in the Lipscomb case is cured. See the opinion of Justice Whitfield. The instruction in the instant case, likewise, cures the defect by'use of the last sentence of the instruction.</p> <p>In the Haywood case, 90 Miss. 465, the jury are told that circumstantial evidence is as good as any other kind of evidence .... and that the jury should act upon such evidence as readily as they would on any other kind of evidence. In the instant case, the jury are instructed that they must view circumstantial evidence with the greatest caution. In the second instruction (the one complained of) the jury are told that circumstantial evidence may rise so high in the scale of belief, etc., and “when it does rise so high in the scale of belief as to generate full conviction in the minds of the jury of the defendant’s guilt beyond a reasonable doubt, then they are authorized to act upon it and convict the defendant of the crime charged.” The court will readily draw the distinction between this instruction and the one in the Haywood, case. In the latter case the jury are told that they* should act upon it as readily as upon any other kind of evidence, and that it is as good.as any other kind of evidence. That is the objectionable part of the instruction, and the one given in the case at bar contains no such objectionable wording.</p> <p>In Cook v. State, 28 So. 833,1 call attention to the opinion of Judge Calhoun on page 834, in which he says: “It is not the law that circumstantial evidence is inferior to direct and positive proof. It is of equal dignity, and in weight and probative force and may, and should in many instances, surpass the other in effect upon the jury. The only restriction attached to it is that it should be received with care and caution.” Here the jury are so cautioned; here they are only told that it may rise to sufficient dignity to warrant full conviction of guilt beyond a reasonable doubt. The instruction is manifestly correct.</p> <p>In the case of Williams v. State, 95 Miss. 671, it will be observed that the instruction asked by the state, and condemned by Justice Smith, does not advise the jury that they must believe defendant guilty beyond every reasonable doubt, as is the case in the instruction complained of in the instant case. Even in the Williams case, however, the court declined to reverse for the reason that the instructions must be taken together and could not be held up separately and objected to, and that if it was manifest that the jury were not misled by any instruction, the case should not be reversed. See, also, Railroad v. Hardy, 88 Miss. 745; Railroad Go. v. Williams, 87 Miss. 344; Harper v. State, 83 Miss. 35.</p> <p>I submit that the instructions taken as a whole, which I am sure your Honors will carefully review, correctly announces the law in the case.</p>

Hon. Sam C. Cook, Judge. Suit by Will Hollingshed against'the Yazoo & Mississippi Valley Railroad Company. From a judgment for a small amount for the plaintiff, he appeals. The facts are fully stated in the opinion of the court.

Hon. W. A. Henry, Judge. Suit by Walter'Laid-et al. against the city of Jackson. From a judgment for plaintiff the defendant appeals. Held: “If digging a well on the dedicator’s land is an acceptance of the land for street purposes, much more so would it be acceptance when two-thirds or perhaps more of the land is at once opened up as a street.

LIon. Paul B. Johnson,-Judge. Lettie Corbin was tried in her absence and convicted of the unlawful sale of intoxicating liquor and appeals. Tbe facts are fully stated in tbe opinion of the court.

Hon. W. A. Henry, Judge. ' Suit hy Kate Nunn against the Palatine Insurance Company Limited. Held: “The power to establish fire limits in the town of Greenville, and to prohibit the erection of wooden buildings therein, although not given by express terms, is by fair implication conferred on the town counsel by the charter. 1 Dillon on Municipal Corporations sec. 338. ’ ’ If the building could have been repaired and was not as…

Hon. Jno. H. Mitchell, Judge. Suit by tbe Virginia-Carolina Chemical Company against W. T. Steen. Prom a judgment for defendant, plaintiff appeals. Tbe facts are fully stated in tbe opinion of tbe court. We contend that tbe Tishomingo Savings Institution was tbe agent of Steen. It is contended with equally as much force by appellee that the bank was the agent of appellant.

Hon. M. E. Denton, Chancellor. Proceedings to establish by L. L. Bankston, a claim against the estate of T. D. Coopwood, deceased. • Prom a judgment in favor of Albert Coopwood, executor, claimant appeals. The facts are fuly stated in the opinion of the court. The single question presented by this appeal is whether the omission of Dr. L. L. Bankston to sign the account would invalidate and preclude recovery of the debt.

Hon. Sam C. Cook, Judge. Suit by Jake Weinstein against the Illinois Central Bailroad Company. From a judgment for plaintiff, defendant appeals.

Hon. C. A. McLean, Judge. Suit by S. A. Floyd against the Sorthern' Bailway Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. Contributory negligence is so clearly made out that the court ought to have instructed the jury to find for the appellant. In Corcoran v. St. Louis, 1.

Hon. J. T. Blount, Chancellor. Proceeding by the Yazoo & Mississippi Valley Railroad Company to revoke letters of administration of Mrs. Mary Jeffries on the estate of R. W. Jeffries, deceased. Prom a decree in favor of the administratrix, the railroad appeals. The facts are sufficiently stated in the opinion of the court.

Hon. Jno. H. Mitchell, Judge. Suit by Mrs. Emma Ganong against the Southern Railway Company. From a judgment for plaintiff defendant appeals. . The facts are stated in the opinion of the court.

Hon. John L. Buckley, Judge. Miller Webb was convicted of robbery and appeals. The facts are fully stated in the opinion of the court.

Hon.- W. A. Roane, Judge. Suit by R. J. McLin & Company against J. T. Worden. Prom a judgment for- defendant, plaintiff appeals. The facts are as follows: This suit was based upon a foreign judgment obtained by appellants against appellee in Wolfe county, Ky. The suit was begun by attachment in the justice court upon a certified copy of said judgment. Alias writs of attachment and garnishment were issued and process served upon the defendant.

Hon. M. E. Denton, Chancellor. Suit by M. E. Haley against the Drainage Commissioners of Leflore county. , Decree dismissing the bill and plaintiff appeals. The facts are stated in the opinion of the court.

Hon. W. H. Hughes, Judge. Carl Mitchell was convicted of carrying concealed weapons and appeals. The facts are stated in the opinion of the court. The evidence shows conclusively that the pistol carried by appellant had no hammer nor mainspring, both of which are necessary to make ■ it a deadly weapon. The carrying a piece or a part of a pistol, concealed in whole or in part, is not an indictable offense.

Hon. A. E. Weatheesby, Judge. Suit by the Slidell Liquor Company against Hayes et al. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. I. T. Blount, Chancellor. Suit by the village of Hickory Flat against A. R. Mebane et al. From a judgment for plaintiff, defendant appeals. The facts are sufficiently stated in the opinion of the court.

Hon. M. E. Denton, Chancellor. Suit by Mrs. M. V. Jones against D. S. Jones, executor of the estate of B. L. Jones, deceased et al. From a judgment overruling a demurrer to the bill, defendant appeals. The facts are as follows: This suit was begun by the appellee, who was complainant in the court below, against the appellant, the executor of the estate of complainants deceased husband.

Hon. John L. Buckley, Judge. Suit by the Masonic Benefit Association of Stringer G-rand Lodge against the First State Bank of Columbus. From a judgment for defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

TIon. W. H. Cook, Judge. Suit by S. E. Eees against the Town of Purvis. Prom a judgment in the circuit court, dismissing an appeal from thé justice court, defendant appeals. The facts are fully stated in the opinion of the court. It is true that the justice of the peace as a witness swore, over the objection by the town, present appellant, that he did not receive a petition for an appeal until November 16th, 1908.

Hon. Paul B. Johnson, Judge. Jack Rodgers was convicted of violating an ordinance of the City of Hattiesburg and appeals. Held: in the case of Calhoun v. State, 86 Miss., quoting from the syllabus: “A defendant who has been tried and convicted of a misdemeanor in the circuit court, on his appeal from the judgment of justice of the peace, cannot complain of the absence of a duly certified copy of the proceedings of the justice of the peace, if there be on file…

<p>1. Criminal Law. Appeal. Bearing in supreme court. Rules of court.</p> <p>Rule 23 of the supreme court provides that “the docket of criminal cases for the whole state shall be taken up’ on the second Monday after the Monday fixed by law for calling the docket for each district. Under this rule where a case was not on the docket for trial when the final call of the criminal docket for the session ended, it cannot be placed there, but will be continued until the court returns to the criminal docket for another trial of same.</p> <p>2. Same.</p> <p>This rule is not in violation of section 72, Code 1906, which provides that “the return day in the supreme court for all criminal cases no matter from what court or county or district appealed, is the Monday of any term first after the expiration of twenty days from the date of taking the appeal, “the court having the right to make rules for the efficient, orderly and ■ systematic conduct of the business of the court.</p>

Hon. W. H. Hughes, Judge. Ida Fife was acquitted in the circuit court on the charge of carrying concealed weapons on her appeal from a conviction in the city court of Collins and the city appeals from the judgment in the circuit court. The facts are stated in the opinion of the court.

Hon.. Gr. A. McLean, Judge. Suit by Mrs. Alice White against the Illinois Central Eailroad Company. From a judgment for defendant, plaintiff appeals. The facts are sufficiently stated in the opinion of the court. When appellant had concluded her evidence in the court below, appellee made a motion for a peremptory instruction, which was granted by the court.

Hon. J. Q. Robbins, Chancellor. Suit by J. E. Carothers et al. against T. M. Moseley et al. From a judgment for defendant, plaintiff appeals. The facts are sufficiently stated in the opinion of the court.

Hon. W. A. Boane, Judge. Suit by Hitt & Butherford against the M. J. & K. C. B. B. Co. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court.

Hon. L. F. Rainwater, Judge. Will Henry Echols was convicted of murder and appeals. The facts are fully stated in the opinion of the court. The court erred in refusing instruction “No. 1 refused” as requested by appellant.

Hon. M. H. Wilkinson, Judge.- Suits by John E. Crawford against the Natchez & Southern Railroad Company. ■ From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. We contend, first, that this statute is violative of the fourteenth amendment of the Constitution of the United States for two reasons: (a) That it deprives a citizen of his property without due process of law.

Hon. Jno. H. Mitchell, Judge. Albert Brown was convicted of manslaughter and appeals. The facts are fully stated in the opinion of the court. It was error for the court to exclude the testimony of O. T. Trapp, sheriff, and Norbin Jones, chancery clerk of Lee county, to whom Henry Brown had confessed that he was the guilty party and not the appellant. The confession and the testimony of the sheriff is in the record, but was not given in the presence of the jury.

Hon. D. M. Miller, Judge. Suit by L. L. Connerly against Lincoln county for the allowance of a claim for fees, etc. From a judgment of the circuit court, affirming the order of the hoard of supervisors disallowing the claim, he appeals. The facts are stated in the opinion of the court.

Hon. James F. McCool, Chancellor. This is an appeal from the vacation decree of the Chancellor rendered in pursuance of the provisions of chapter 39 of Code 1906, relative to drainage districts, by which decree the assessment of the commissioners for the district of benefits received by landowners in the district was approved.

Hon. W. H. Hughes, Judge. . Suit by W. D. Shivers against the Farmers Mutual Fire Insurance Company. From a judgment sustaining a demurrer to the declaration, plaintiff appeals. The facts are stated in the opinion of the court.

Hon. John H. Mitchell, Judge. Charles. F. Wofford was convicted of manslaughter and 'appeals. Held: that an instruction on the doctrine of “falsüs in 'uno, falsus in omnibus” should contain the words here omitted. The Waldrop case, 54 So. Eep. 66, may save this instruction. I submit the question to the court.

county. Hon. John L. Buckley, Judge. The facts are-sufficiently stated in the opinion of the court. Held: that it was a stipulation for the benefit of the seller only and to prevent his having to pay charges, and it was not a condition precedent. This case was affirmed in the. Exchequer Chamber (1 Com. PI. [L. R.] 685).

Hon. M. H. Wilkinson, Judge. T. C. Buford was convicted of obtaining money under false pretenses and appeals. As to the third instruction we can only, say that we were amazed at its refusal. This instruction asked the court to charge the jury that the discharge of subordinate agent by a superior agent,'who had the right to discharge him, could not be proved in this case by the written report of the superior agent to the principal.

Hon. J. C. Ward, Special Judge. John Hubanks and others were indicted for obtaining money under false pretenses. From a judgment sustaining a demurrer to the indictment the state appeals.

Hon. W. A. Boane, Judge. James Brandon was convicted of manslaughter and appeals. The facts are as follows: On the trial what purported to be the dying declaration of the deceased was admitted as evidence aver the objection of the defendant. The deceased was shot on Saturday night. Two days later he made a statement to the sheriff about the killing.

Hon. C. L. Dobbs, Judge. Proceeding by J. J. Ashley et al. for a repeal of an existing stock law. Prom a decision of the circuit court adverse to the board of supervisors, the board appeals. The facts are as follows: Proceedings by J. J. Ashley and others for a repeal of the stock law existing in described territory.

Hon. W. A. Eoane, Judge. Suit by J. J. Kiney against the Mobile, Jackson & Kansas City Eailroad Company. From a judgment for ■defendant plaintiff appeals. The facts are as follows: The appellant, who was plaintiff in the court below, filed a declaration against the defendant railroad company, seeking to recover damages for personal injuries. The defendant filed a plea of general issue, and also special plea setting up contributory negligence on the part of the plaintiff.

Hon. T. A. Wood, Chancellor. Proceedings by E. B. George against Mrs. Maline Lehman et al. for the allowance of a claim against a decedent’s insolvent estate. Held: as we understand it, that the former proof was insufficient to apprise those interested as to the nature of the claim, and therefore failed to meet the requirements of the statute. The claim, as we view it, as it now stands under the probation of.

Hon. John L. Buckley, Judge. . C. W. Poythress was convicted of making a false entry on the.public records and appeals. The facts are as follows: The appellant was indicted under section 1177 of the Code of 1906 for making a false and fraudulent entry on the public records of Lauderdale county.

Hon. I. T. Blount, Chancellor. Suit by Ann Hoskins against the Masonic Benefit Association. Decree for plaintiff and defendant appeals. The facts are as follows: One Morris Hoskins, the husband of appellee, procured a benefit certificate in the appellant association in the year 1895, which entitled his window, or his legal representatives, in the event of his death, to the sum of money here sued for.

Hon.- Samuel Whitman, Jr., Chancellor. Suit by H. Mclnnis et al. against A. D. Anderson. From a decree amending a final decree rendered in vacation, defendant appeals. The facts are as follows: The case was heard by agreement in vacation, and the chancellor outlined his opinion to counsel, who prepared a decree and sent it to the chancellor for signature. It was duly signed by the chancellor and placed of record by the clerk in the minutes of the court.

Hon. W. A. Eoane, Judge. H. E. Tabor was convicted of manslaughter and appeals. The facts are as follows: The state’s theory, on the trial, was that accused lay in waite on the roadside for deceased and killed him. He testified that deceased came along on. his horse and attempted to draw a pistol on him, when accused fired.

Hon. J. S. Hicks, Chancellor. Suit by William Junkin against Mrs. Jane Field et al. From the overruling of a motion to set aside a decree pro confesso, defendant appeals. The facts are as follows: The appellant, Mrs. Jane Field, and the appellee, Wm. Junkin, were tenanats in common of a certain tract of land described in pleadings. Mrs. Field sold her interest in the timber on the land to Messrs. Wilcox and Burkley, who afterwards began to deaden and cut the timber.

Hon. Gr. Gr. Lyell, Chancellor. Bill in chancery by R. J. & H. B. Davis against Luciná Bellows. From a decree dismissing the bill plaintiff appeals. The facts are as follows: The appellants and appellee entered into an agreement, which is in substance as follows: (1) By and between R. J. Davis and H. B. Davis, hereinafter designated as parties of the first part, and Lucina Gr.

Hon. Paul B. Johnson, Judge. Emma Plaggett was convicted of unlawful retailing and appeals. The facts are as follows: When the case was called for trial in the circuit court, accused did not appear; but her attorney filed an application for a continuance, supported by affidavit setting out the fact that she was too side for trial and under treatment of a physician, who also testified as to her condition.

Hon. T. H. Barrett, Judge. Petition by Mobile & Ohio Railroad Company against the board of supervisors of Wayne county. Prom a judgment in favor of the railroad company, the board of supervisors appeals. The facts are as follows: The appellees filed a petition before the board of supervisors of Wayne county asking a reduction of their assessment.

Hon. I. T. Blount, Chancellor. Petition by Thos. A. Caffey et al. against Henry Tindall et al. for the probate of a nuncupative will. Prom a decree dismissing the petition proponents appeal.' The facts are as follows: One W. M. Caffey, a single man, died without living parents, brothers, or sisters, or children of brothers or sisters. At the time of his death, his nearest relatives, according to the law of descent and distribution, -were his mother’s brothers and sisters.

Hon. W. A. Henry, Judge. Suit by the state on the relation of M. S. McNeil, district attorney, against E. J. Smith, state auditor. Held: the notes were to be taken at par. Of course. Does that throw any light on this case? State v. Simmons, 70 Miss., presents no such question as is involved in this case. The' reference to former statutes of this state for sale of bonds throws no light on the Act of .1910, which must be interpreted by its own terms.

Hon. T. H. Barrett, Judge. Suit by Horrace Knox against the Exporters’ Cotton Oil Company. Held: that he was not guilty of contributory negligence, and did not assume the risk, and verdict in his favor was affirmed. To the same effect is the case of Hansen v. Seattle Libmber Co., 19 Am. Neg. Eep., Current Series, 592, a Washington case decided in 1906 ; also, Cobb Chocolate Co. v. Knudson, 17th Am. Neg.

Hpn. J. Q. Bobbins, Chancellor. Suit by G. W. Long against Eaves & Co. Erom a decree dismissing the bill, plaintiff appeals. The facts are as follows: Appellant entered into the following contract with appellees: “Tupelo, Miss., Nov. 2, 1907.

Hon. W. H. Hughes, Judge. Will Corley was convicted of assault with intent to rape and appeals. The facts are sufficiently stated in the opinion of the court. The third instruction for the state is vicious, and a reversible error.