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32, 11 South. 914, as contended by defend- 1 5. Criminal law Om 1056(1)-Exception is nec. ant. The word "not," between the words essary for review of oral charge. "would” and “be” in the phrase "and it An exception is necessary for review of an would not be the duty of the jury to acquit oral charge, though erroneous oral charge is him,” renders the refusal. of this charge given on objection and exception to another harmless to the defendant, and the addition charge given for purpose of curing error ob

jected to. al word "not" renders the charge hurtful rather than beneficial to defendant. More- 6. Criminal law Ow844(1)-Exception merely over, it does not properly state the law. describing 'subject treated by court in oral [5] The principles of law embodied in re

charge is bad. fused charge 14 were fully covered by the An exception merely describing subject court's oral charge and by the given charges. treated by court in oral charge is bad, and exIts refusal was not error, for the statute

ception merely designating beginning parts of (Acts 1915, p. 815) provides:

oral charge excepted to is insufficient. “The refusal of a charge though a correct statement of the law shall not be cause for a County; Chas. P. Almon, Judge.

Appeal from Circuit Court, Lauderdale reversal on appeal if it appears that the same rule of law was substantially and fairly given Willie Forsythe was convicted of distillto the jury in the court's general charge or in ing, and appeals. Affirmed. charges given at the request of parties."

These charges were refused to defendant: The refusal of charge 19 is justified for the “(3) I charge you, gentlemen of the jury, same reasons given as to refused charge 14. that, if you do not believe from the evidence The proposition of law embodied in this beyond all reasonable doubt that defendant charge was substantially and fairly given to aided or abetted in the operation of the still the jury in its general charge.

by carrying water, you must find defendant

not guilty." No error appears in any of the court's

“(4) I charge you, gentlemen of the jury, rulings. The record proper is free also from that, if you do not believe from the evidence

Let the judgment appealed from be beyond all reasonable doubt that defendant opattirmed.

erated or had possession of the still, you must Affirmed.

find the defendant not guilty.”

Bradshaw & Barnett, of Florence, for ap

pellant. FORSYTHE V. STATE. (8 Div. 144.) Harwell G. Davis, Atty. Gen., and Lamar

Field, Asst. Atty. Gen., for the State. (Court of Appeals of Alabama. May 20, 1924.)

BRICKEN, P. J. The verdict of the jury 1. Intoxicating liquors ww239 (1)--Requested found the defendant guilty as charged in the

charge as to reasonable doubt properly re- first count of the indictment. This count fused.

charged that he did distill, make, or manIn prosecution for distilling liquor, court ufacture, alcoholic, spirituous, or malt liproperly refused to charge that, if jury did not quors, etc., contrary to law. believe from evidence beyond all reasonable

No rulings of the court were invoked upon doubt that defendant aided or abetted in oper; the testimony in this case, hence no excepation of still by carrying water, it must find tions were reserved in this connection. defendant not guilty.

[1, 2] Charges 3 and 4 refused to the de2. Intoxicating liquors 239(1)-Charge as fendant were properly refused. to distilling held properly refused.

At the conclusion of the court's oral In prosecution for distilling liquor, court charge, the transcript shows the following: properly refused to charge that, if jury did not

"The defendant excepts to that part of the believe from evidence beyond all reasonable doubt that defendant operated or had posses- charge to each and every word of the charge

giving the definition of ‘aid and abet.'” sion of still, it must find him not guilty. 3. Criminal law Om819-Court may withdraw

Whereupon, through an abundance of cauerroneous statement of law given in oral tion the court stated : charge.

“Gentlemen of the jury, I withdraw the defi. It is right and duty of court to withdraw nition that I gave you to ‘aid and abet,' and any erroneous statement of law given to jury give you this as the law on the question of in oral charge.

aid and abet. The words ‘aid and abet' com

prehend all assistance rendered by act, word, 4. Criminal law Ow823(1)-Erroneous in

encouragement, support, or presence, either struction cured by prompt withdrawal or in actual or constructive, to render assistance struction to disregard.

should it become necessary.Error in oral charge may be cured by prompt withdrawal or retraction, or by in Appellant here complains that this last struction to disregard.

statement is also erroneous, but concedes For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Inderes

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(100 So.) the record fails to disclose that an exception, 3. Witnesses Om 344(1)-Proof that witness was reserved thereto.

ran from still when raided held admissible. [3, 4] The court had the right, in fact it Proof that one of defendant's witnesses ran was its imperative duty, to withdraw any from still when raided held admissible as tenderroneous statement of the law given to the ing to impeach. jury in his oral charge. Whether such state

Appeal from Circuit Court, Lauderdale ment was due to inadvertence, mistake, or

County; Arthur E. Gamble, Judge. otherwise, and error if any may be cured by a prompt withdrawal or retraction of the Mint Carter was convicted of violating the objectionable statement, or by an instruction prohibition law, and appeals. Affirmed. to the jury to disregard such statement. Bradshaw & Barnett, of Florence, for apNull v. State, 16 Ala. App. 542, 79 South. pellant. 678.

Harwell G. Davis, Atty. Gen., and Lamar [5,6] We pretermit the question of the field, Asst. Atty. Gen., for the State. correctness of the final definition of "aid and abet," as given by the court to the jury. SAMFORD, J. [1] It having been shown The question is not presented. An exception that defendant was seen coming from a place is necessary for a review of an oral charge. where the indications were whisky had been Ex parte State ex rel., etc., Montgomery v. recently distilled, that this place was near State, 204 Ala. 389, 85 South. 785. More- defendant's house, that defendant was 25 over, the exception reserved to the first yards from the still place, coming from statement of the court does not appear to towards the still place towards his house, meet the required rule; it was descriptive that he had a glass demijohn, that defendrather than specific. An exception merely ant's house was 50 or 75 yards from the still describing the subject treated by the court | place, it was relevant to prove that defendant in an oral charge is bad, and an exception had the smell of whisky on him. This fact merely designating the beginning parts of tended to connect defendant with the the oral charge excepted to is insufficient. tinished product of the still. This court did The rule requires the reservation of an ex- hold, in a special case, and under a state of ception to a particular, exactly designated facts not here involved, that evidence that statement of the judge. There is no prac

a man's breath smelled of whisky did not contice allowing an exception by description of nect the defendant with its manufacture. a subject treated by the court in an oral Gowen's Case, 18 Ala. App. 542, 93 South. charge to the jury.

281, but in Love's Case (Ala. App.) 97 South. No error appears upon the record proper. 126, the Gowen Case was qualified and The court committed no reversible error in limited. any of its rulings. The judgment appealed [2] It having been shown by the evidence from is therefore affirmed.

that whisky was found at defendant's house Affirmed.

at the time the raid in this case was made, it was competent for a witness who knew to testify that it was corn whisky. The wit

ness Sam Weathers qualified as an expert in CARTER V, STATE. (8 Div. 173.)

stills and whisky making by distillation.

Having so qualified, he could testify that (Court of Appeals of Alabama. May 20, 1924.) | the whisky found was "corn whisky”; that

the slop was "still slop"; that the keg found 1. Intoxicating liquors 233(1)-Proof that

was a "thumper"; that a box found there, defendant smelled of whisky held relevant.

a part of which was copper, was a “thumper After proof that defendant was seen coming box,” and it was also competent for this wit. from a still where whisky had been recently made

, going towards his house carrying glass ness to explain to the jury the purposes for demijohn, it was relevant to prove that he had which these various articles were designed or about him the smell of whisky.

used. Ex parte State ex. rel. Davis, Atty.

Gen., 207 Ala. 453, 93 South. 501. 2. Criminal law w 472--Expert testimony as [3] There was no error in permitting the to liquor and articles of still found held com

state to prove that Will Chandler, a defendpetent.

ant's witness, ran from the still at the time Testimony by expert witness that whisky of the raid, as tending to impeach the testaken in raid was corn whisky, that the slop was “still slop," that a keg found was a

timony of Chandler, "thumper," and a box a “thumper box,” and in

There is no error in the record, and the
explanation of the uses of these various ar- judgment is affirmed.
ticles, held competent.

Affirmed.
For other cases see same tople and KEY-NUMBER in all Key-Numbered Digests and Indexes

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to pay.

[2] Eliminating that part of the instruPLANTERS' CHEMICAL & OIL CO. v. MOR- ment, ineffective by reason of the statute, RIS. (7 Div. 992.)

there is still left the promissory note of (Court of Appeals of Alabama. May 20, 1924.) Morris. Under the common law the execu1. Bills and notes w 54—Failure of execution and we know of no statute changing the rule.

tion of an instrument by mark is sufficient, of note to constitute waiver of exemptions, or mortgage, held not to affect liability on

McGowan v. Collin 154 Ala. 299, 46 South. promise to pay.

228; Penton v. Williams, 150 Ala. 153, 43 Even though the signature on a note by a South. 211; Jackson v. Tribble, 156 Ala. mark without attestation did not bind the mak- 480, 47 South. 310. er as to waiver of exemptions, and was not The judgment is reversed, and the cause valid as a mortgage, the maker was still liable is remanded. on the promise to pay.

Reversed and remanded. 2. Bills and notes 54-Execution of note by mark held sufficient as promise to pay.

Execution of signature on note by mark without attestation held sufficient as to promise

YOUNG V. STATE. (8 Div. 141.)

(Court of Appeals of Alubama. May 13, 1924.) Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

1. Husband and wife cu 3(1) Nervousness Action on promissory note by the Planters'

and excitability of wife held not to justify

her leaving domicile. Chemical & Oil Company against Z. T. Mor

Husband bas right to fix family domicile, ris and J. T. Windsor. From a judgment and nervousness and excitability of wife does for defendant Morris, plaintiff appeals. Re- not justify her in leaving it. versed and remanded.

2. Husband and wife On 304_Offense of va. Motley & Motley, of Gadsden, for appel- grancy not proved; "sufficient means." lant.

Conviction for vagrancy, under Code 1907, J. M. Miller, of Gadsden, for appellee. $ 7843, subd. 8, for abandonment of wife and

family, cannot be sustained where defendant, SAMFORD, J. The complaint was in two a day laborer, had given them clothes, shoes, counts declaring on a promissory note exe- and money on several occasions, at one time cuted on the 4th day of May, 1920, and pay- $65, all within three months' time; “sufficient able on the 1st day of October. The com- means" within statute being relative term and plaint contained an allegation that defendant applying to condition in life. had waived his claim to exemption. There

(Ed. Note.-For other definitions, see Words was a plea of non est factum.

and Phrases, Sufficient Means.) Plaintiff introduced evidence tending to prove the consideration, and witness testi

Appeal from Morgan County Court; W. T. fied, defendant not being able to sign his Lowe, Judge. name, that, at defendant's request, witness Raymond Young was convicted of va. signed defendant's name and defendant made grancy, and appeals. Reversed and his mark. The note was then introduced in manded. evidence, and contained, besides the promise W. H. Long, of Decatur, for appellant. to pay, a waiver of exemptions and a mort

Harwell G. Davis, Atty. Gen., for the gage on certain personal property. This in

State. strument was signed Z. X. T. Morris, and had mark

SAMFORD, J. The prosecution in this no attesting witness. It was shown that Mor-case was under subdivision 8, § 7843, of the ris could neither read nor write, and there Code of 1907. The evidence is without diswas no evidence that the payee or its agent pute that the defendant is a tenant farmer signed the note. The court gave at the request of the one-plow class and a day laborer; of defendant, Morris, the affirmative charge that he is an able-bodied man; that he and as to him and this action is assigned as er- his wife and children (how many does not ap ror.

pear) were living with his father, where de[1] Under the evidence offered by plaintiff, fendant was supporting them; that the wife Morris was primarily liable for the fertilizer was nervous and easily excited; that the for which the note was given, and, even if wife had a quarrel with defendant's father the signing of the note in the manner tes regarding the punishment given one of the tified to did not bind Morris as to the waiv. children; that time, just after the quarrel, er of exemptions and was not valid as a the wife left, taking a part of the children mortgage, he would be liable on the promise and going to her mother's, where she has to pay. Brown v. Bamberger, Bloom & Co., since lived; that the defendant has, several 110 Ala. 342-355, 20 South. 114; Penton v. times, asked the wife to return, and she has Williams, 150 Ala. 153, 43 South. 211. refused to live with him at the father's

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

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(100 So.) bouse, but agreeing to return if the defend-2. Criminal law Om 1056(1), 1091(10)-19ant would establish a domicile elsewhere; struction not reviewed unless exception is rethat the separation took place in May, 1923, served and appears in bill of exceptions. and this trial was had August 14, 1923; that Unless exception to oral charge is reserved during that time and since the separation de on trial and appears in bill of exceptions, no fendant has asked the wife to return, but question for review is presented. she has always refused; that between the 3. Witnesses from 345(2)-Conviction of manu. separation and the trial defendant has con facturing whisky cannot be used to impeach tributed to the support of his wife and chil. reputation.

Conviction of witness for manufacturing clothes and by giving the wife money in sev- whisky does not involve moral turpitude, and eral amounts, at one time as much as $65, hence cannot be used to impeach his reputa

tion. and defendant has with him and is supporting one of the children. It is true the wife 4. Witnesses em 363(1)-Evidence of law violawbile testifying said “both of them told me

tion by witness and similar charges pending to leave," but in view of the other state

against him would not show bias or interest.

Evidence that state's witness, in prosecuments of the wife that, when she had the quarrel with the father and left, the defend- tion for violating prohibition law, had been ant was not present, and her further state. charges similar to that against defendant were

engaged in manufacturing whisky, and that ments that defendant had several times tried then pending against him, would not tend to to get her to return to him and to her mari- show bias or interest in favor of cause or of tal duties, this statement should have little, defendant. if any, weight.

5. Criminal law 1 153(4)-Witnesses [1] The husband has the right to fix the

267-Much latitude allowed in discretion of domicile of the family, and the nervousness

court as to cross-examination; sound disand excitability of the wife does not justify cretion of court as to cross-examination of her in leaving it.

witnesses not reviewed except in extreme [2] What is "sufficient means," within the cases of abuse. meaning of the statute, is a relative term

Much latitude is allowed in cross-examinaand applies to the condition in life of the par- tion of witnesses, within court's sound discreties. True, the mother-in-law expressed the tion, which will not be reviewed except in ex

treme cases of abuse..
opinion in her testimony, to which no excep
tion was taken, that "he has not supported

Appeal from Circuit Court, Fayette Counher and her children since they came to my

ty; R. L. Blanton, Judge.
house." But, under the circumstances of
this case, for a day laborer to have given

Green Webster was convicted of violating

Affirmed. his wife and children clothes, shoes, and the prohibition law, and appeals. money on several occasions, at one time $65,

Certiorari denied by Supreme Court in Ex all within three months' time, does not have parte Webster, 100 South. 202. in it the elements of vagrancy. The law is S. T. Wright, of Fayette, for appellant. reasonable and does not require unreason Harwell G. Davis, Atty. Gen., for the State. able things, and one of them is it does not require a man to contribute to his family SAMFORD, J. There were two counts in beyond his ability. Nor will it permit a the indictment, but, the conviction being unman to stand convicted of vagrancy upon a der the first count, it will not be necessary state of facts as shown by this record. to notice rulings of the court applicable only The motion for a new trial should have to the second count.

[1] The defense was that of an alibi, and The judgment is reversed, and the cause is on this point the court in its oral charge remanded.

said: Reversed and remanded.

“The proof as to the alibi is sufficient whenever, taken in connection with all the evi. dence in the case, it is sufficient to generate in your minds a reasonable doubt as to the guilt

of the defendant." WEBSTER v. STATE. (6 Div, 286.)

This is the rule declared in Caraway. v. (Court of Appeals of Alabama. Jan. 15, 1924. State, 18 Ala. App. 547, 93 South. 376, and to Rebearing Denied Feb. 19, 1924.) which we adhere.

[2] Insistence is made in brief of counsel 1. Criminal law 572-Evidence generating that error was committed by the trial court reasonable doubt of guilt sufficient proof of in another portion of its oral charge, the ex

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Proof of alibi is sufficient if, taken in con- cerpt being quoted in the brief, but no exDection with all evidence, it is sufficient to gen- ception to this excerpt appears in the record. erate in jury's minds a reasonable doubt as Unless exception is reserved on the trial and

appears in the bill of exceptions, no question For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

alibi.

to defendant's guilt.

för review is presented to this court. Bean | 2. Executors and administrators 194(7)— v. State, 18 Ala. App. 281, 91 South. 499. Appeal from decree to set aside exemptions

[3, 4] Upon tbe cross-examination of one of to widow and minor children must be perthe state's witnesses, defendant's counsel

fected within 20 days. sought to prove that witness had been en

Appeals from decrees affecting exemptions gaged in manufacturing whisky, and that to widow and minor children must be perfected charges of a similar nature as the one for within 20 days, under Code 1907, $ 4216, nei

ther section 2855, authorizing appeals from which defendant was then being tried were probate court, nor section 2868, fixing time of then pending against witness. This testi- appeals as within 6 months from decree, being mony was not relevant for any purpose. If applicable. witness had been convicted of manufacturing whisky, such conviction, not involving moral Appeal from Circuit Court, Pike County; turpitude, could not be used to impeach his W. L. Parks, Judge. reputation. Abrams v. State, 17 Ala. App. 379,

Proceeding by Hamp Griffin and others in 84 South. 862. Nor would such evidence have the probate court to set apart a homestead. a tendency to show bias or interest of the wit- From the decree entered George L. Herring ness in favor of the cause or the person on and others, contestants, appealed to the cirtrial.

cuit court, and, from a judgment of the cir. [5] Much latitude is to be allowed in cross-cuit court affirming the decree of the proexamination of witnesses, within the sound bate court, contestants prosecute this appeal. discretion of the trial courts, and this dis

Appeal dismissed. cretion will not be reviewed except in extreme cases of abuse of this discretion. Low

T. L. Borom and John H. Wilkerson, both man v. State, 161 Ala. 47, 50 South. 43. It of Troy, and Black, Harris & Foster, of may be noted that, in the Johnson Case, 199 Birmingham, for appellants. Ala, 255, 74 South. 366, the Supreme Court A. G. Seay, of Troy, for appellees. reaffirmed the above rule, and for that reason refused to permit the judgment to be re

GARDNER, J. We feel constrained to versed.

hold that the motion to dismiss the appeal The foregoing is also applicable to assign- in this cause is well taken, and must be ments 8 and 9. We find no error in the rec

sustained. ord, and the judgment is affirmed.

The question of setting apart exemptions Afirmed.

to the widow and minor children is specifically provided for in article 4 of chapter 86 of our Code. Sections 4205-4230, Code of 1907. Section 4216 provides that, from the decree of the probate court pronounced on

exceptions to the report of the commissionEx parte Green WEBSTER. (6 Div. 115.)

ers, the aggrieved party may appeal to the (Supreme Court of Alabama. April 24, 1924. Supreme Court within 20 days. In McDaniel Rehearing Denied May 22, 1924.)

v. McDaniel, 199 Ala. 467, 74 South. 947, the

appeal taken under the provisions of section Certiorari to Court of Appeals.

4216, was dismissed as not having been perS. T. Wright, of Fayette, for petitioner. fected within 20 days, the court saying, "the Harwell G. Davis, Atty. Gen., opposed. statute authorizing appeals from such decree

requires the appeal to be taken PER CURIAM. Petition of Green Webster within 20 days.” In Jones v. Hubbard, 208 for certiorari to the Court of Appeals, to re- Ala. 269, 94 South. 167, the court, in makview and revise the judgment and decision there rendered in the case of Webster v. State, 100 ing reference to appeals in cases of this South. 201.

character, cites the above-cited authority in Writ denied.

connection with section 4216 of the Code of 1907. See, also, Ingram v. Ingram, 119 Ala. 256, 24 South. 47.

True the decree rendered in the instant

case is a final decree, and doubtless, in the HERRING et al. v. GRIFFIN et al.

absence of any special provision, would come (4 Div. 113.)

within the influence of section 2855, author(Supreme Court of Alabama. May 1, 1924.) izing appeals from final decrees of the pro

bate court to the circuit court or the Su. 1. Statutes em 2251/2-Special provisions relating to specific subjects control over gen- limitations, be governed by the provisions of

preme Court, and, in the absence of other eral.

Special provisions relating to specific sub-section 2868 of the Code, fixing the time as jects control general provisions relating to gen

within 6 months from the rendition of the eral subjects, and things specially treated will decree. be considered as exceptions to general provi

[1] The appellants seem to have assumed sions.

that the appeal in the instant case was gov. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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