페이지 이미지
PDF
ePub
[ocr errors][ocr errors]

et al.

[ocr errors][ocr errors]

(100 So.) reopen the orders and decrees in the case of entire blank page. This order does not apJenkins v. Belt are: (1) The recital in the pear in the final record made by the clerk pro confesso decree that the defendants of the proceeding in the case. It was not "have been cited to appear at the present made an exhibit to the bill, and consequently term of this court, by publication, made was not before the court on the former apaccording to law, and the order of publicą- peal herein. There is no copy of the publication sent by mail to their place of residence tion for the defendants in the case of Jenkin the state of Georgia, as required by law," ins v. Belt in the file thereof, but there is is false and that no legal publication for the therein a proof of publication by the printers defendants was in fact made; (2) that the and a receipt for their fees therefor. balance due Jenkins by Belt on the purchase On December 7, 1870, the clerk of the court of the land was paid by Belt's administra- below made and filed the following affidavit: tris after the rendition of the decree for the "Margaret Jenkins, Adm's, v. Elizabeth T. Belt sale of the land and before the sale thereunder was made; (3) that the same person, D.

"This day personally appeared in open court M. White, clerk of the court, was appointed D. M. White, clerk of this court, who makes both as guardian ad litem of the minor de- oath as required by the rule of this court that fendants and as commissioner to sell the he forwarded by mail as required by law to the land; (4) the sale of the land was in fact defendants in the above cause at their stated made not by White, who was appointed as residence, Augusta, Georgia, the order of pubcommissioner for that purpose, but by his lication taken at rules at the above cause. deputy clerk, Nicholetts; (5) the price

“[Signed, D. M. White. brought by the land at the sale was wholly 7th day of December, 1870.

“Sworn to and subscribed before me this the inadequate; (6) that Mrs. Belt was disquali

“[Signed] J. F. Simmons." fied to purchase the land because she was the executrix of the estate of L. Carlton

The statute in force when this case was Belt of which estate the land was a part,

pending is as follows: In support of the allegation of the bill that publication was not made for the defendants isfaction of the judge, by affidavit or otherwise,

“When it shall be made to appear to the satin the case of Jenkins v. Belt, the minutes that any defendant to a suit in chancery, is out of the court below covering the period during of the state, or a nonresident thereof, or canwhich the cause was pending, most of which not, upon due inquiry, be found therein, an orwere made exhibits to the bill, were intro- der may be made directing such defendant to duced in evidence, and there appears therein appear, and plead, answer or demur, to the in addition to the orders and decrees herein- complainant's bill, at a certain day therein to be before referred to an order in the clerk's named, being a return day of the court, not vacation minutes reading as follows:

less than two por more than six months after

the date of the order, which order shall, within "Order taken at rules, third Monday of Octwenty days thereafter, be personally served tober, 1870, Margaret Jenkins, Administratrix, on such defendant by delivery of a copy there9. Elizabeth T. Belt.

of to him, or be published in one of the public "On opening the bill in this cause it ap- newspapers of this state, designated in such orpearing that the defendants are nonresidents der, for four weeks successively, at least once of this state and are citizens of the state of in each week; and such order shall also be Georgia, and of the city of Augusta, it is there- served, or published, in such other manner as fore ordered that notice be publisbed in the Tal- may be therein directed. Such orders of publahatchie News, a weekly paper published in lication may also be entered at rules to be held the town of Charleston, in Tallahatchie county, in the clerk's office, subject to the control of for four consecutive weeks, to appear at the the court," etc. Rev. Code 1857, c. 62, art. 34. next November term of the chancery court for

An amendment to this statute provides: said county to plead, answer or demur to the said bill of complaint, or same will be taken “That it shall not be necessary to take orders for confessed, and it is further ordered that of publication for absent or nonresident de a copy of this order be sent by mail, according fendants, before the clerks at rules, but the to law, to said defendants, directed to them at same may be taken at any time in the office, besaid city of Augusta, in said state of Georgia." fore the clerk, whether the same be at rules or

not; and the order, when so taken, shall be This order was not signed by the clerk, entered on the minutes by the clerk, subject

to the control of the court;" etc. (Laws 1867, was not confirmed by the court in term time, is in the bandwriting of the complainant's

c. 294.) solicitor in the case of Jenkins v. Belt, and On this evidence the contention of the apthe order preceding it, and the one imme-pellant is that no publication was in fact diately following are both dated during the made, and, if made, was not made pursuant month of September. All of the other vaca- to a valid order therefor, the order purporttion orders of that period appear in the hand- ing to have been made by the clerk therefor writing of the clerk or signed by him, and having been in fact entered on the minutes seem to have been acted on by the court in without authority so to do. term time. The vacation minutes of the Assuming, as was held on the former apclerk contain several blank spaces and one peal, that this is a direct and not a collateral

100 SO.-13

[ocr errors][ocr errors][ocr errors][merged small][ocr errors][ocr errors][ocr errors]

attack on the decree in the case of Jenkins ( true that the relief here sought is both the v. Belt, the recital in the order hereinbefore annulment of the orders and decrees under set out that publication for the defendants which the land was sold and the recovery of in that case had been in fact made is not the possession of the land. But the joinder conclusive, but the burden of showing its of the two in one suit cannot affect the time falsity is on the appellees, the complainants within which a suit to annul the orders and in the court below, and it must be accepted decrees must be brought. Brooks v. Spann, as true unless the evidence to the contrary 63 Miss. 198. is clear and convincing. The absence of the In deciding the question now under conclerk's signature to the order for publication sideration we will leave out of view section is not material as his signature thereto was 1265, Code of 1871, which now appears as not required by the statute, and, while the section 646, Code of 1906 (section 408, Hemfacts hereinbefore set forth may be sufficient ingway's Code), and also the effect, if any, of to arrest attention and cast doubt upon the the failure of the minor defendants to apvalidity of the order, they are wholly insuffi- peal the case of Jenkins v. Belt to this court cient to overthrow it after the lapse of half a within the time allowed them therefor after century and in the face of the solemn ad- attaining their majority by section 2161, judication of the court that the defendants Code of 1871, which now appears as chapter "have been cited to appear at the present 222, Laws of 1916 (Hemingway's Code, $ 2476). term of this court by publication made ac- If either of these statutes apply here, the cording to law and the order of publication appellees cannot of course maintain this sent by mail to their residence." That re-suit. cital not being proven to be false must be While we have no statute specifically preaccepted as true, from which it follows that scribing the time within which a suit to anthe court acquired jurisdiction of the defend- nul a decree must be brought, the court by ants, and consequently the decrees rendered analogy will limit the time therefor to the pursuant thereto must remain in force un time prescribed by the statutes for bills of less they can be set aside on some other review, appeals to this court, and similar ground.

proceedings, The longest period of time Our holding that publication was made within which proceedings to reopen a decree for the defendants in the case of Jenkins can be begun is that provided for a bill of v. Belt disposes of the objection here raised review and is the period that must control to the validity of the decree therein ren- here. Brooks v. Spann, 63 Miss. 198; Metdered for the sale of the land, so that we calfe v. Perry, 66 Miss. 68, 5 South. 232. come now to the objections raised to the That period under the present statute (secvalidity of the subsequent orders and de- tion 3111, Code of 1906; Hemingway's Code, crees therein made.

$ 2475) is two years from the rendition of the On the former appeal herein it was held decree saving to minors a like period after that the other alleged defects in the orders attaining their majority. and decrees in the case of Jenkins v. Belt are [4] Conceding for the sake of the argument not such as would render them void, but that concealed fraud is here charged, the voidable only, 125 Miss. at page 390, 87 rule thereby sought to be invoked, that the South. 666, so that at the threshold of the limitation on the right to bring a suit to appellees' case lie these orders and decrees annul a decree commences only when the which must be set aside before any question fraud on which the suit is predicated is or can arise as to whether or not the appellees ought to have been discovered, cannot apply are otherwise barred from recovering the here, for defendants in the cause in which land. The first question that presents itself the orders and decrees here sought to be in this connection is: Are the appellees bar- annulled were rendered were dead when red by the lapse of time from obtaining a the cause in which the decree here appealed suit to annul these orders and decrees? In from was rendered was tried in the court determining this question the fact that the below, and it does not appear from the evi. appellees' right under the will of L. Carlton dence that they did not know of the matters Belt to the possession of the land may not on which the charge of fraud is predicated. have accrued until the death of Mrs. Eliza- Moreover the rule of concealed fraud canbeth T. Belt in 1917 is of no consequence, not apply to those things that were here for their right to annul these orders and de- openly done or which appear of record. crees is in no wise dependent on their right Thornton v. City of Natchez, 88 Miss. 1, 41 to the possession of the land, or rather upon South. 498; Norris v. Haggin, 136 U. S. 386, the time when that right may have accrued. 10 Sup. Ct. 912, 34 L. Ed. 424. What was said in this connection on the for- This disposes of all of the grounds on mer appeal was there material, for it then which the orders and decrees rendered in appeared from the allegations of the bill that Jenkins v. Belt are sought to be annulled publication for the defendants in Jenkins v. except that when Mrs. Belt purchased the Belt had not been made, which, if true, land at the sale she was the executrix of the would have resulted in all of the orders and will of her husband, L. Carlton Belt, by decrees therein rendered being void. It is which the land was divested as hereinbefore

[ocr errors]

(100 So.) set out. What has just been said applies to Mary O'NEAL V. STATE. (No. 24166.) any right the minors may have had to have the decree confirming the sale of the land (Supreme Court of Mississippi, Division A. set aside because the purchaser thereof was

May 19, 1924.) the executrix of the estate of which the land Appeal from Circuit Court, Lamar County; formed a part, and the only other right they J. Q. Langston, Judge. could have had because of the purchase of "Not to be officially reported." the land by the executrix was to institute

Garraway & Broadus, of Purvis, for appelproceedings within ten years after attaining lant. their majority to have her decreed to hold

F. S. Harmon, Asst. Atty. Gen., for the State. the land in trust for them. Belt v. Adams, 125 Miss. 390, 87 South. 666; section 3125, PER CURIAM. The warrant under which Code of 1906 (Hemingway's Code, & 2489). the appellant's residence was searched is void. In any aspect of the case the appellants City of Jackson v. Howard (Miss.) 99 South.

497. could not now maintain a suit to annul the

Consequently the evidence thereby oborders and decrees under which the land was Miss. 211, 90 South. 845, 24 A. L. R. 1377.

tained is inadmissible. Tucker V. State, 128 sold, even if it had remained in the hands

Reversed and remanded. of the purchaser at the sale. Consequently we have left out of view the fact that the appellant is à subsequent purchaser for value. Reversed and bill dismissed.

Will TURNER V. STATE. (No. 24211.) (Supreme Court of Mississippi, Division A.

May 19, 1924.)

L. E. DAVIS v. L. A. WHITTINGTON et al.

Appeal from Circuit Court, Sunflower Coun(No. 24045.)

ty; S. F. Davis, Judge.

"Not to be officially reported." (Supreme Court of Mississippi, Division A. Everett & Forman, of Indianola, for appelMay 19, 1924.)

lant.

Harry M. Bryan, Asst. Atty. Gen., for the Appeal from Chancery Court, Franklin Coun

State. ty; R. W. Cutrer, Chancellor. Theo. McKnight, of Bude, and Truly & Truly,

HOLDEN, J. The appellant, Will Turner, of Fayette, for appellant.

appeals from a conviction on a charge of murL. A. Whittington, of Natchez, for appellees. der and a sentence to the penitentiary for life.

The only point presented for reversal is that SMITH, C. J. Two errors only appear in the the indictment was insufficient to charge the ofdecree of the court below: (1) The attorney's fense of murder, in that it failed to allege the fee provided in the notes should have been al- time and place, and the malice. We have carelowed; and (2) the appellee should not have fully examined the indictment, and think there been allowed credit for interest on the mort-is no discussable merit in the contention. gage to the Federal Farm Loan Bank.

Therefore the judgment of the lower court is The decree of the court below will be revers- affirmed. ed, and a decree will be rendered here in ac

Affirmed. cordance with this opinion. Reversed and decree here.

BULLOCK V. STATE. (8 Div. 111.)

(Court of Appeals of Alabama. May 20, 1924.) Wash WILLIAMS V. STATE. (No. 23879.) lindictment and information Como 19-Indictment

in Code form held sufficient. (Supreme Court of Mississippi, Division A. May 19, 1924.)

Indictment for forgery in Code form held.

sufficient. Appeal from Circuit Court, Amite County; R. L. Corban, Judge.

Appeal from Circuit Court, Madison Coun"Not to be officially reported."

ty; Jas. E. Horton, Jr., Judge. J. A. Wiltshire, of Magnolia, for appellant.

Ross Bullock was convicted of forgery, and F. S. Harmon, Asst. Atty. Gen., for the State.

appeals. Affirmed. PER CURIAM. The affidavit on which the

The indictment is as follows: search warrant was made is void. Spears v. “The grand jury of said county charge that State (Miss.) 99 South. 361. Consequently before the finding of this indictment Ross Bul. the evidence procured by means of the search lock, with intent to injure or defraud, did falseis inadmissible. Tucker V. State, 128 Miss. ly make, alter, forge or counterfeit an instru211, 90 South. 845, 24 A. L, R. 1377.

ment in writing in words and figures substan. Reversed and remanded.

tially as follows: 'Huntsville, Ala. 12/18/1922, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

No.

Farmers' State Bank of Hunts- Craig & Brown, of Selma, for appellant. ville, Alabama, 61-78. Pay to the order of Harwell G. Davis, Atty. Gen., for the State. W. N. Turner $9.00 nine dollars for halling loge, W. H. Ikard.' Or with intent to injure

SAMFORD, J. or defraud did utter and publish as true the of merit presented by the bill of exceptions,

There are no exceptions said falsely made, altered, forged or counterfeited instrument in writing knowing the same and, no errors of a prejudicial nature apto be so made, altered, forged or counterfeit- pearing in the record, the judgment of coned, against the peace and dignity of the state viction is affirmed. of Alabama."

The judgment in this case is incomplete.

In cases of misdemeanor a complete judg. R. E. Smith, of Huntsville, for appellant.

ment must be rendered, and, when an appeal Harwell G. Davis, Atty. Gen., and Lamar is taken under section 6244 of the Code of Field, Asst. Atty. Gen., for the State.

1907, such judgment is suspended upon a

compliance with either sections 6250 or 6251 BRICKEN, P. J. From the record proper, of the Code, as the case may be. upon which the appeal is predicated, we find Let the judgment of conviction be affirmed, the only question presented for the considera- and the cause be remanded for proper sention of this court is the action of the court tence. in overruling demurrers to the indictment. Affirmed in part, and remanded.

The indictment was in Code form and was not subject to the demurrers interposed. Jennings v. State, 17 Ala. App. 640, 88 South. 187.

BELL' V. STATE. (8 Div. 97.) The record proper is free from error; (Court of Appeals of Alabama. April 8, 1924. therefore the judgment appealed from will Rehearing Denied May 20, 1924.) be affirmed.

1. Criminal law Om778(12)-Homicide 300 Affirmed.

(3)-Instruction as to elements of selfdefense and burden to prove defendant at fault held properly denied.

Instruction that burden on state to prove COOK V. STATE. (2 Div. 283.) defendant, who acted in self-defense, was at (Court of Appeals of Alabama. May 20, 1924.) fault in bringing on difficulty, and instruction

as to essential elements of self-defense, held Criminal law 982–Judgment in prosecution properly denied as in effect submitting question for misdemeanor held insufficient.

of law to jury and not defining self-defense. Judgment reciting impaneling of jury and 2. Homicide Om 308(3)-Where conviction was verdict of guilty, and containing court's adjudi- for manslaughter, denial of charge pertinent cation that defendant was guilty of present. to murder only not error. ing pistol as charged in the indictment, which

Where conviction was for manslaughter, provided no sentence, but recited the taking of charge relating to offense of murder only was an appeal and the suspension of sentence pend- not pertinent, and its denial not error. ing same, held insufficient, under Code 1907, 8 6244; judgment being suspended on compliance 3. Homicide ww300(12) - Requested instrucwith either section 6250 or section 6251.

tion as to defendant's right to shoot in selfdefense held properly denied.

Where testimony was in conflict as to Appeal from Circuit Court, Dallas Coun- whether defendant was wholly free from fault, ty; S. F. Hobbs, Judge.

requested instruction that if deceased apT. E. Cook was convicted of unlawfully proached defendant's door armed with stick, presenting a firearm, and appeals. Judgment such manner that reasonable and prudent man

attempted to enter, threatening defendant in affirmed; remanded for proper sentence.

would have anticipated harm, and that in anThe judgment entry recites:

ticipation of such harm defendant shot de“Thereupon came a jury of twelve good and ceased, he was not guilty, held properly denied. lawful men, who, having been elected, impanel. 4. Homicide Om 341 Requested instruction ed, and duly sworn according to law on their held incorrect law and its denial harmless. oaths, say they find the defendant guilty as

Denial of requested instruction that, if charged by the indictment, and fix his fine at defendant acted in reasonable apprehension of $10.

danger, "the killing would not be wrongful and "It is therefore considered and adjudged by it would not be the duty of jury to acquit him," the court that the defendant is guilty of pre- held harmless; same being prejudicial to desenting a pistol, as charged in the indictment. fendant and incorrect law.

*The defendant in this case having reserved certain questions of law for the consideration 5. Criminal law Emm829(1)-Denial of request. of the Court of Appeals of Alabama, and having

ed instructions covered by others given not prayed for and obtained an appeal to said court, it is ordered by the court that the sentence in Under Acts 1915, p. 815, denial of request. this case be suspended pending such appeal, ed instructions covered by others given is not. and defendant's bond is fixed at $100."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

error.

error.

[ocr errors][ocr errors]

(100 So.) Appeal from Circuit Court, Marshall Coun There were no eyewitnesses to the homity; W. W, Haralson, Judge.

cide, but the physical facts as testified to by Jesse Bell was convicted of manslaughter several witnesses, the location of the wound, in the first degree, and appeals. Affirmed. and the range of the bullet, coupled with the

statement of defendant as to how the killing These requests for instruction were re- occurred, made a question for the deterfused to defendant:

mination of the jury. It certainly cannot be "(4) Where the defendant has shown he seriously insisted that a question of law only was acting in self-defense, the burden of proof was presented and that the court under the is on the state to prove that he was in fault testimony committed error in refusing to in bringing on the difficulty.” “(8) If the jury believe from the evidence and in overruling the motion of defendant

give the affirmative charge for defendant, the defendant did not bring on, provoke, or encourage the difficulty, but was talking to the to exclude the testimony and discharge the deceased in a quiet and peaceful manner, and prisoner. In each of the rulings of the deceased threatened to kill defendant and grab- court in this connection there was no error. bed up a stick and used it in such a threaten The rulings of the court upon the admising manner as to indicate to a reasonable sion of evidence are so clearly free from mind that his purpose was to use it, defendant error we will not discuss them. Suffice it to had a right to shoot, having the right to act say that no ruling of the court upon the evi. upon the reasonable appearance of things."

dence injuriously affected the substantial "(10) If the jury believe from the evidence

rights of the defendant.
that Brown approached the door of the de-
fendant's house armed with a stick, and at-

It appears that the principal insistence of
tempted to enter, threatening the defendant, error relied upon to effect a reversal is the
using the stick in such a manner that the de- refusal, by the court, of several written
fendant, as a reasonable and prudent man, charges requested by defendant.
anticipated great bodily harm to himself, and Charge 1 was the affirmative charge. As
in anticipation of bodily harm he shot to pre- stated, under the evidence and its tenden-
vent it, he is not guilty.
“(11) If the defendant, at the time of the fore there was no error in its refusal.

cies, a jury question was presented; therekilling, entertained a reasonable apprehension of great personal violence, involving imminent

(1) Charges 4 and 17 were properly reperil to life or limb, then the killing would not fused. These charges in effect submit a be wrongful, and it would not be the duty of question of law to the jury. They do not the jury to acquit him, unless the jury fur- define the element of self-defense. Collins ther believe from the evidence that the de- v. State, 17 Ala. App. 186, 84 South. 417. fendant was at fault in bringing on the diffi- The oral charge stated the law of self-deculty,"

fense in all of its phases, and if the charges "(17) The court charges the jury that be- were not bad for the reasons stated, their fore the jury can acquit the defendant on the refusal would have been without error; the ground of self-defense in this case, these essential elements must concur: First, the de propositions of law attempted to be stated fendant must have been free from fault in being fairly and substantially covered. bringing on the difficulty; second, there must [2] The conviction in this case was for have existed at the time, really or apparently manslaughter; refused charge 7, relating to as to lead a reasonable mind to the belief that the offense of murder only, was not perIt actually existed, a present, imperious, im- tinent. pending necessity to shoot in order to save

[ocr errors][ocr errors][merged small]

Charge 8 was fairly and substantially himself from great bodily harm. If, however, after considering the whole evidence, includ- covered by given charge 3, and also by the ing the testimony of the defendant, the jury oral charge of the court. This charge is bave a reasonable doubt as to whether Beii distinguishable from charge 5, in the case of shot Brown in self-defense, or under such cir- Gibson v. State, 91 Ala, 64, 9 South. 171, cumstances as to make him guilty of crime, it relied upon by defendant, in that it does not is their duty to give him the benefit of the hypothesize the use of a deadly or dangerdoubt, and acquit him.”

ous weapon by the deceased.

Refused charge 9, as it appears in this Joe Starnes, of Guntersville, for appel- record, 'is elliptical and unintelligible.

[3] Charge 10 was properly refused. This Harwell G. Davis, Atty. Gen., and Lamar charge, while as contended is analogous to Field, Asst. Atty. Gen., for the State.

the approved charge in the Christian Case,

96 Ala. 89, 11 South. 338, is not applicable BRICKEN, P. J. This defendant ad- to the facts here. In the Christian Case, mitted that he killed Dave Brown, the per- supra, it appears that the testimony showed son named in the indictment, by shooting without conflict that the defendant was him with a pistol, and that said killing oc- wholly free from fault, and in the instant curred within the jurisdiction of the court case, as has been stated, this question was where the case was tried. He relied upon one for the jury. self-defense to justify his act in taking the

[4] Refused charge 11 is not identical with a charge requested in Keith v. State, 97 Ala.

lant,

$14

life of deceased.

« 이전계속 »