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[Ex Parte Pappenburg in re. Pappenburg v. The State.)

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hot-house or conservatory.”—Endlich, Int. Stat. 568570.

Mr. Sutherland, in his work on Statutory Construction, announces the same rule. He gives the following examples: "It was held that a bull was not included under the words or other cattle' as used in a statute which made it indictable for any person to wantonly or cruelly beat, abuse, and ill treat any horse, mare, gelding, mule, ass, ox, cow, heifer, steer, sheep, or other cattle. Bayley, J., said: "Horse, mare, gelding, are one class; ox, cow, heifer, and steer are another; and in my opinion the bull is not included in this act.' A Michigan statute gave every wife, child, parents, guardian, husband or other person' a right of action against a liquor seller for injury done to the plaintiff by reason of the intoxication of any person. On the ground and principle under consideration, it was held that the intoxicated person himself was not within the statute.”— 2 Lewis' Sutherland, Stat. Con. 816-818.

There is another rule of construction in this connection which tends to show that "highway" as used in this statute does not include the Tennessee river. That rule is that general words following particular words, as "highway” following “streets,” will not be held to include any of a superior class to that to which the particular words belong.

An English statute forbade salmon fishing in the waters of cert:in enumerated streams and “all other waters from which salmon are taken"; and this was held to include only rivers inferior to those enumerated.

These rules, however, are but rules of construction, intended only as aids to the court in ascertaining the meaning intended by the Legislature, and not to defeat that will by giving the words a more restricted meaning than the Legislature intended. The doctrine of ejusdem

[Spicer v. The State.)

generis must not be carried to the extreme of depriving general terms of all meaning or scope for operation and effect. If the intention of the Legislature is apparent, then there is no room for rules of construction; they would tend to confuse rather than aid.-Foster v. Blount, 18 Ala. 687.

We think, however, that the doctrine of ejusdem generis does aid and apply in this case, and shows that the Tennessee river or other navigable waterways were not included within the meaning of the word "highway" as used in the section of the act in question. In fact, to hold that such rivers are included would render useless other provisions of the act as to common carriers. To restrict the words, as contended by the petitioner, would give effect to all parts of the act; but to include within them the navigable rivers, railroads, and all highways would make other parts of the act useless.

Spicer v. The State.

Murder.

(Decided June 11, 1914.

6.) South. 972.)

1. Homicide; Evidence; Motire.--Evidence that defendant had procured insurance upon the life of his wife, payable to himself in the sum of $17,000.00, was admissible as tending to show motive, the prosecution being for wife murder.

2. Same-Where the state claimed that defendant killed his wife in order to collect insurance on her life, the details of the procuring and collecting the insurance, and conversations relative thereto not tending to show guilt or innocence, nor to corroborate or contradict any relevant evidence, is inadmissible.

3. Same.-Where it did appear that defendant said that he would fix up his house with the insurance money, it was not competent to introduce statements made by defendant subsequent to the killing of his wife relative to what he would do as to fixing up his house.

(Spicer v. The State.]

4. Same; Relations Between Defendant and Deceased. Where a defendant was charged with killing his wife, evidence as to actual cruelty on the part of defendant towards his wife is admissible.

5. Same.- Where defendant was charged with killing his wife, evidence as to his association and relation with other women, or even the desire of such relation, is admissible, if it appears that the wife stood in the way of his gratifying these desires; but words and acts to or towards other women are not admissible, unless they have a certain tendency to show motive.

6. Same.-Relations between defendant and other women are not admissible for the purpose of proving the corpus delicti, the charge being wife murder, but are admissible only where there is other evidence to establish the corpus delicti to repel the presumption of innocence arising from the relationship existing between man and wife.

7. Same.- Where defendant was being tried for murder of his wife evidence that on one occasion, defendant said to a witness who was walking into church with a young lady unknown to defendant, that if his wife was not there he would take the girl away from the witness; that he advised another witness not to get married, and said that he would not marry any woman the sun ever shone upon; that on another occasion he said, in a laughing way, that if he was not married he would not be, was not admissible in the absence of evidence of a direct nature, to show infelicity between defendant and his wife, or that he was cruel and unkind to her.

8. Same; Statements by Deccased.-Evidence as to a statement made by deceased after she had received a mortal wound, which was not a part of the res gesta of the killing, nor of a dying declaration admitted in evidence, and which did not tend to contradict the dying declarations, was not admissible.

9. Same; Threats by Third Person.-Where defendant was on trial for wife murder, and there was evidence tending to show that the wife was shot by a negro boy, and that such boy intended to shoot defendant instead, it was competent for defendant to introduce in evidence threats made by the negro boy towards him.

10. Same.-Where the state had introduced evidence tending to show intimate if not criminal relations hetween defendant and a young woman, and that they were together in an automobile and registered at various hotels, it was competent for defendant to introduce evidence that a brother of defendant and such young woman had had some trouble, and that defendant's brother had procured defendant to carry her away, and that he was doing so when they were seen together, but the details of the trouble between the brother and the young women were not admissible.

11. Same - Where the state asserted as a motive for the killing the obtaining by defendant of the insurance on the life of his wife, evidence that defendant made proof of his wife's death to the insurance company soon after the killing, was properly admitted.

12. Same.-The fact that defendant stated at the time that he was making such proof that he was in no hurry to do so, was properly excluded as a self-serving declaration.

13. Same.--The details of purchases and exchanges of automobiles by defendant soon after the death of his wife, and what was said

[Spicer v. The State.]

relative to such exchanges and purchases, were not admissible, and was not rendered admissible by a remark of defendant that a particular machine was just right for carrying ladies to ride, or for carrying his children.

14. Same.-Where witness did not identify the accused as the man in question, and it was not shown to have had any connection with or relation to the death of the wife, the fact that a man of the same name as defendant was in the house of a certain woman, was improperly admitted.

15. Same.--Where defendant was on trial for murdering his wife, and the state had introduced letters written by defendant while in jail, stating that he expected to tell the truth if it broke his neck, defendant should have been permitted to show that at that time he was not charged with killing his wife, but with killing a third person who he had asserted was the murderer of the wife.

16. Evidence; Motive.--Motive is an inducement or that which leads or tempts the mind to do or commit the crime charged.

17. Same.—The motive for a crime cannot be speculated upon or imagined, and the motive attributed to defendant must have some legal or logical relation to the act charged according to known rules and principles of human conduct; otherwise, it cannot be considered a legitimate part of the proof.

18. Same; Best and Secondary.The warrants and capiases under which defendant was detained in jail at the time he wrote a certain letter, were the best evidence that he had not then been charged with or arrested for the killing of his wife, for whose murder he was then on trial, but that he was being charged with the murder of a third person.

19. Appeal and Error; Harmless Error; Evidence.—The fact that accused was permitted to testify to facts which other witnesses were called to prove did not render the exclusion of the testimony of such witness harmless to defendant, since a defendant cannot be compelled to testify, nor to prove his own defense by his evidence alone..

20. Trial; Inspection of Papers.—It was not error for the court to refuse to require the state's counsel to turn over to counsel for defendant a slip of paper in the possession of the state's counsel on which defendant had written his name, but which was not sought to be introduced in evidence.

21. Charge of Court; Covered by Those Given.—It is not error to refuse charges substantially covered by written charges given.

22. Jury; Competency; Rejection by Court.-Under Acts 1909, p. 305, the court cannot properly decline to place upon the lists the names of persons appearing as a part of the venire as to whom no statutory ground of disqualification exists, and who are not excused for some reason personal to the juror, such as sickness.

23. Same.-It was not error for the court to excuse of its own motion jurors who were opposed to capital punishment, or who had a fixed opinion.

24. Same; Qualification ; Reading English.-Inability to read the English language does not disqualify the juror who is possessed of all

[Spicer v. The State.]

the other qualifications prescriled, and is a freelolder or householder (Acts 1909, p. 305).

APPEAL from Covington Circuit Court.
Heard before Hon. A. H. ALSTON. .

Sam Spicer, Jr., was convicted of the murder of his wife, sentenced to the penitentiary for life, and from such judgment he appeals. Reversed and remanded.

HENRY OPP and POWELL & ALBRITTON, for appellant. The court erred in excusing the jurors, for', notwithstanding their answers disclosed cause for challenge, the state may waive its right to challenge, and the court should not have excused them of its own motion. Bell V. State, 115 Ala. 37; Lyman v. State, 45 Ala. 78; Junphy v. State, 37 Ala. 142; SS 7276, and 7278, Code 1907. Neither of the Carters were disqualified as jurors.-S 11, Acts 1909, p. 305. Counsel discuss the evidence relative to insurance policies and the statements connected therewith with the insistence that serious error intervened, and they cite 72 Pa. St. 60; 6 Enc. of Evid. 6812; Johnson v. State, 17 Ala. 625; Duncan v. State, 34 Ala. Liles v. State, 30 Ala. 24; Smith v. State, 9 Ala. 990. These same authorities are cited in support of the contention that the court erred in admitting evidence as to defendant's relations with other women. They insist that the threats made by the negro boy against defendant were admissible in this case, and they cite 6 Enc. of Evid. 751; 30 S. W. 804; 10 Tex. App. 230; Clark v. State, 78 Ala. 474. The statement made by deceased was improperly admitted.—Coles v. State, 105 Ala. 76.

R. C. BRICKELL, Attorney General, W. L. MARTIN, As. sistant Attorney General, and W. L. PARKS, for the State. No error attended the action of the court in excusing the juror.-State v. Marshall, 8 Ala. 302; Tatum

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