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Court of Appeals under Act of 1911, p. 449, 81 reason of the construction of said road, I here6. Reversed and remanded.

by release the county from all consequential Counts 1 and 3, as amended, are as fol- erty arising out of the construction, mainte

damages, present or prospective, to my proplows:

nance, or repair of said road, and that said "(1) The plaintiffs claim of the defendant road is a benefit to my said property is herethe sum of $10,000 damages for trespass by by admitted and acknowledged. defendant on the following tract of land, viz.:

"In witness whereof, we, the parties hereto, Begin at a point where the west boundary have set our hands and seal this 26th day line of the S. E. 14 of the N. E. 14 intersects

of December, 1919. W. F. Cornelius. the north line of the right of way of the pub

“N, A. Cornelius. lic road; run northerly along said

"Witness: W. E. Moore, by W. F. C.west boundary line 227 feet more or less to

The court sustained plaintiffs' objection to the southwest corner, the land of Mrs. Ella Cole; thence east along the south line of said its introduction, and instructed the jury not Mrs. Cole land 155 feet then south and parallel to consider it. to the west boundary line 68 feet more or less Martin, Thompson & Turner and Hobart to the north side of the public road; thence A. McWhorter, all of Birmingham, for apsouthwesterly along said road 200 feet more pellant. or less to the beginning-belonging to the

Black, Harris & Foster, of Birmingham, plaintiffs and for placing poles and wires over for appellees. and along said property. And plaintiffs further allege that the poles and wires so placed by defendant interfered with and impeded ANDERSON, C. J. [1] The counts upon plaintiffs' ingress and egress to and from said which this case was tried, amended counts property, the wires so placed by defendant were charged by it with electric current of a

1 and 3, were in trespass, and the things voltage making them dangerous to the life of complained of and damages claimed constihuman beings and other living creatures and tuted a single and continuous trespass and endangered the lives of plaintiffs and their injuries proximately resulting therefrom and horses, cows, and other stock, and said wires were not subject to the defendant's demur. were not insulated but were left uninsulated

The cases relied upon by appellant's so that any contact therewith by persons or counsel are unlike this one. The case of animals would subject them to the force of said electric current, all proximately decreasing Sudduth v. Central of Georgia R. R., 197 the value of the use and occupation of said Ala. 393, 73 South. 28, involved a complaint property and the value of said property was which charged in the same count trespass proximately decreased thereby, all to plain and case; that is, trespass in entering and tiffs' damages as aforesaid, hence this suit.”

“(3) For this count plaintiff's adopt all of laying the tract and an independent wrong count 1 as amended and add thereto the fol- as to the operation of trains. In the case of lowing additional averments: Plaintiffs further So. R. R. v. McIntyre, 152 Ala. 223, 44 South. allege that said trespass was willfully done 624, the count condemned charges trespass and committed and willfully continued by de- on the plaintiff's premises and in addition fendant after the plaintiffs bad warned the thereto that defendant created an obstrucdefendant not to do and commit the same, and tion, not on the plaintiff's land, but elsethe defendant acted in gross, reckless, and where, which interfered with the ingress and willful disregard of plaintiffs' rights in and to the said property, and in addition to ac- egress of the plaintiff. tual damages plaintiffs claim of defendant [2-5] As we understand, the theory upon punitive damages."

which this case was tried was that the poles

were placed and the wires were strung withDefendant offered in evidence the follow- in the 50 feet of what purported to be a ing deed conveying the land involved to Jef- public highway, and not on the plaintiffs' ferson county:

land exclusive of said 50 feet; the defendant “State of Alabama, Jefferson County.

therefore contending that it committed no “Know all men by these presents that we, trespass, as the plaintiffs did not have the the undersigned, of the county and state ownership and possession of said strip, and aforesaid, in and for the consideration of the that it was owned and possessed by Jefferbenefits to us and to the public of said road, son county for the benefit of the public. The do hereby grant, bargain, sell, and convey into

plaintiffs' contention was that, nothwithJefferson county, its successors or assigns, a right of way hereinafter described, over and standing it was within the limits of what across the lands of the undersigned for a pub purported to be the highway, said highway lic road; which right of way shall be 50 feet was located on their land which had never in width or 25 feet in width on each side of been legally conveyed or dedicated; that the the center line of the said road as it is now strip in question was a part of the homelocated and staked out by the county engi- stead, nothwithstanding it was owned by neers across the said lands, which are located the plaintiffs jointly, and, being a part of and described as follows, to wit: As per map the homestead, there could have been no on file in the county highway engineer's office. If any fencing is to be moved the county will dedication except by a conveyance and sepdo so at their expense. And for and in con- arate acknowledgment by the wife. It may sideration of the benefit to my property by be conceded that the contention is correct if

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(100 So.) the land involved was a part of the home-, proceed upon this theory, and count 2 was stead at the time of the attempted dedica- eliminated. tion, but, if it was not, it can be dedicated For the error above mentioned, the judge by parol or in writing without the statutory ment of the circuit court is reversed, and the formalities essential to the conveyance of cause is remanded. the homestead. Hill v. Houk, 155 Ala. 448, Reversed and remanded. 46 South. 562; East Birmingham v. Birmingham Machine Co., 160 Ala. 461, 49 South. SOMERVILLE, THOMAS, and BOULDIN, 448; West End y. Eaves, 152 Ala. 334, 44 JJ., concur. South. 588. The question therefore arises, Was the strip in question such a part of the homestead as to require the legal formalities essential to the conveyance of the homestead? RICHARDSON V. STINSON. (7 Div. 469.) The undisputed evidence shows that the

April 17, 1924. place was worth $3,000 at the time of the (Supreme Court of Alabama.

Rehearing Denied May 15, 1924.) conveyance by W. F. Cornelius to Jefferson county, and the trial court erred in exclud. 1. Trial Ow169—As against requested gening said deed in so far as the same went to

eral charge complaint held to state cause of

action.
his interest in the land. True, as suggested
in brief of counsel for appellee, a tenant in

Complaint charging that plaintiff had lien common is entitled to a homestead exemp- on cotton, that defendant, with knowledge of tion to the land held in common, but this it, received and disposed of the cotton, and has

failed and refused after demand to account to does not give each owner the right to claim plaintiff for proceeds, whether deemed in case the full exemption to the joint property. or assumpsit, held to state cause of action, as The homestead is not increased on account against defendant's request for general charge, of their fractional interests in the land, so on ground that it failed to do so. as to make up in quantity what is wanting 2. Trial Om 169–Defendant not entitled to in extent of ownership. Snedecor V. Free general charge because of one count in conman, 71 Ala. 140; Campbell v. Noble, 145 solidated case not stating cause of action. Ala. 233, 41 South. 745. The result is each Even if complaint in one of three cases, of these plaintiffs would be entitled to an involving the same law and facts and between exemption not in excess of $1,000 in value the same parties, fails to state a cause of aceach, and not to the extent of $2,000 each. tion, defendant is not on this ground, after the

cases have been consolidated, whereby the The homestead being greater in value than counts in the other cases, which are unques$2,000, the sale or dedication of the excess tioned, have become part of the consolidated by the owner operates as a selection of the case, entitled to the general charge, instructing remainder as the homestead to the exclusion a finding against plaintiff as to the entire case. of the alienated tract. Williams v. Kilpat- | 3. Evidence 595-Demand and refusal may rick, 195 Ala. 563, 70 South. 742. The plain bo inferred, and need not be proved in exact tiffs' proof shows that the place was worth words. $3.000, and there was no proof offered that Demand and refusal need not be proved in the disposition of the strip in question re exact words, but it is enough that there is amduced the value of the remainder below ple evidence from which the jury can infer $2.000.

them. (6, 7] As to the interest of Mrs. Cornelius, 4. Evidence Cm 374(2)-Execution prima facie while there was proof that she consented proven by subscribing witness. to building the road, she did not convey her

It is sufficient proof of the execution of a interest in the land as the statute requires, cotton crop mortgage by P., to render it prima which was essential to a valid dedication. facie admissible, that the subscribing witness Tansandt v: Weir, 109 Ala. 104, 19 South. testified that P: could not write, and told H. to

sign for P., which H. did, and that P. made his 424, 32 L. R. A. 201. The evidence shows mark. that the deed made by the husband included

5. Witnesses Saw 275(2)-Sustaining objection her signature, which was placed there by to cross-examination of plaintiff as to former him without her knowledge or

consent.

business practice held not error. Whether this was or was not a fraud on his Sustaining objection to questions on crosspart, she cannot be charged with same by examination of plaintiff as to his former pracway of an equitable estoppel as the proof tice of slipping notes over a man to catch him, shows that she was ignorant of said deed or of what he told K. when he took a note

from him like the one in question, held not erwhen the road was constructed. Whether or Dot there is a liability to W. F. Cornelius, who dedicated his interest as for an addi

6. Trial 0311 - Jury could common tional burden or servitude upon the high

knowledge notwithstanding testimony of re.

cent value of cotton. way upon which he is an adjacent owner, we The jury was not conclusively bound by dedo not determine, as neither counts 1 or 3 í fendant's statement as to the value of cotton

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 100 $0.-14

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in question, as they must have had some com- were consolidated and tried as one case; mon knowledge of what cotton was worth, two of the suits having started in the justice when defendant received it, a few months be- of the peace court and appealed to the circuit fore trial.

court. It is insisted that the defendant's On Rehearing.

requested charges 1 and 2, the general charge, 7. Judgment em237(4)-Held in effect for de- should have been given, for the reason that

fendant struck out by amendment of com- the complaint in the third case, that is, the plaint.

one originally filed in the circuit court, does There was in effect a judgment for defend- not state a cause of action. While this count ant bank, the judgment entry showing com- may be subject to demurrer, but which was plaint was amended by striking it out as de not interposed, we do not think it fails to fendant, leaving only an individual defendant, state a cause of action whether it be deemed and judgment rendered being against him alone. in case or assumpsit. It charges that plain8. Costs wm90—Should be allowed defendant tiff had a lien on the cotton; that defendstricken as party by amendment of complaint. ant, with knowledge of said lien, received and

Judgment for costs incurred by defendant disposed of said cotton, and has failed and struck out, as a party by amendment of com- refused, after demand, to account to the plaint should have been rendered by trial court. plaintiff for the proceeds of said sale. More. 9. Appeal and error em 226(1), 719(10)-Fail-over, if this complaint did not state a cause

ure to render judgment for costs not to be of action, the defendant was not entitled to raised for first time in appellate court. the general charge as to the counts in the

Omission to render judgment for costs for other cases, which became a part of the condefendant struck out as party by amendment solidated case, and which are unquestioned, of complaint should not be raised for first time and said charges instruct a finding against in appellate court, and that too by brief mere- the plaintiff as to the entire case. ly, without assignment of error.

[3] Nor do we think that the defendant was 10. Appeal and error cm 1149-Appellate court, entitled to the general charge because the

If having proper data, could amend judgment plaintiff failed to prove a demand and reto allow costs to party struck out.

fusal as averred in the complaint. True, the Appellate court could, if having proper plaintiff did not prove in exact words an data, correct judgment to allow costs to a express demand and refusal, but there was party struck out by amendment of complaint. ample evidence from which the jury could

have inferred a demand and refusal. The Appeal from Circuit Court, Cherokee Coun- plaintiff testified as to seeing the defendant ty; W. W. Haralson, Judge.

and claiming the cotton, and that the sale Action by S. L. Stinson against J. K. Rich- price was furnished him by said defendant, ardson for destruction of mortgage liens. and the defendant's witness Pope testified Judgment for plaintiff, and defendant ap had been sold that plaintiff had claimed the

that defendant told him after the first bale peals. Transferred from the Court of Ap

cotton. peals under Acts 1911, p. 449, section 6. Affirmed.

[4] There was sufficient proof of the execu.

tion of the mortgage by Pope to render it The complaint alleges that the plaintiff is prima facie admissible as evidence. The the holder of a mortgage executed to him by subscribing witness, Howell, testified that one J. J. Pope to secure an indebtedness Pope could not write, and told him to sign which remains unpaid, and conveyed to for him, which he did, and Pope made his plaintiff the equitable title to all crops of mark. cotton raised or caused to be raised by Pope [5] There was no error in sustaining the during the year 1922; that Pope raised cot-objection to the questions to the plaintiff on ton subject to plaintiff's mortgage, and the cross-examination as to his former practice defendant, with knowledge, did buy or re- or custom of slipping notes over a man to ceive a bale of cotton, of the value stated, catch him or of what he told one Kilgore and sold or removed the same beyond plain when he took a note from him like the one in tiff's reach, destroying his lien, etc.

question. On examination of plaintiff's witness How- [6] We cannot say that the trial court ell he was shown the mortgage, the basis erred in refusing the motion for a new trial of plaintiff's claim, and testified that he had because the verdict was excessive. True, the signed the same for Pope, who could not verdict about equals the value of the cotton write; that Pope made his mark, and he as stated to the plaintiff by the defendant, witnessed it.

but the jury could have inferred that the Hugh Reed, of Center, for appellant. rent, one-fourth, had been excluded by de. C. B. Sims, of Center, for appellee.

fendant. Moreover, the jury was not con.

clusively bound by the statement of the deANDERSON, C. J. [1, 2] This record pre- fendant as to the value of the cotton, as they sents three cases which involve the same must have had some common knowledge of law and facts between the same parties and what cotton was worth, at the time the de

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

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(100 So.) fendant received same, just a few months that delay in drawing special venire shall be before the trial.

a ground for quashing venire, or for continuThe judgment of the circuit court is af- ance, “as soon as practicable" being determinfirmed.

ed by trial judge in his discretion. Affirmed.

3. Criminal law mw 589(1) - Discretion not

abused by denying continuance for delay in SOMERVILLE, THOMAS, and MILLER,

serving copy of indictment and list of ju. JI., concur.

rors.

Court did not abuse its discretion in denyOn Rehearing.

ing a continuance in a murder prosecution for

delay in serving defendant with a list of jurors ANDERSON, C. J. It is urged that the and a copy of indictment under Acts 1919, p. court did not consider or treat the seventh 1041, where no motion was made or court's atassignment of error, and which is as follows: tention called to delay until presented by mo"The court erred in failing to render a judg- tions to continue and to quash venire. ment in favor of defendant Farmers' & Mer-4. Jury Cw116-Failure to serve defendant in chants Bank.” The judgment entry shows

murder prosecution with copy of indictment that the complaint was amended by striking and list of jurors "forth with” no ground for out the bank as party defendant, and this quashing venire. left only the appellant as party defendant, Failure to serve defendant in a murder and the judgment rendered was against him | prosecution with a copy of indictment and a alone and not the bank, and was in effect a list of jurors “forthwith," as required by Acts judgment in favor of the bank. Handly 1919, p. 1041, constituted no grounds for Reeves & Co. v. Lawley & Co., 90 Ala, 527, quashing venire. 8 South, 101. True, the trial court should 5. Criminal law m531(3)-Defendant's state. have rendered judgment for the bank for cost

ment as to reason for killing decedent held incurred by it, but this omission is not as admissible as voluntary confession. signed as error, and should have been brought Defendant's statement that he did not to the attention of the trial court at the time know why he shot deceased, unless it was the of the amendment, the rendition of the judg- devil in him, was admissible as a voluntary ment or by motion to retax, and not for the confession, where deputy sheriff testified that first time in this court by brief and without it was made to him without threats or vioan assignment of error, True, this court lence to defendant. would no doubt have the power to correct if 6. Criminal law Om736(2)-Jury cannot in. it had the proper data (Long v. Gwin, 188 quire into competency of confession admit. Ala. 196, 66 South. 88; Neff v. Edwards, 81 ted in evidence by court. Ala. 246, 2 South. 88), but we do not feel Defendant's requested charge that jury called upon to do so upon the present condi- should disregard his confession if it was made tion of the record.

involuntarily was properly refused, since jury Rehearing denied.

cannot inquire into competency of a confes.
sion admitted in evidence; their only duty be-
ing to determine its credibility and effect.
7. Criminal law m380-Defendant's good

character not provable by specific acts or

absence of convictions of crime. SCOTT V. STATE. (6 Div. 903.)

Defendant's good character cannot be prope (Supreme Court of Alabama. April 10, 1924. en by specific acts of merit nor by evidence Rehearing Denied May 15, 1924.)

that he has never been convicted of crime.

8. Criminal law On 776(2)-Charge held to 1. Indictment and Information mw 128 — In

properly define purpose and probative effect dictment for murder not subject to demur. of proof of good character. rer for designating decedent by different In a murder prosecution, court's charge names in each count.

that defendant had right to offer testimony of An indictment for murder was not subject good general reputation for peace and quiet, to demurrer for misjoinder, though deceased that such evidence was entitled to such weight was designated by different names in each as jury thought it ought to receive in conneccount, without an allegation that her name was tion with other evidence, but that good char. otherwise unknown.

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acter alone was not a defense, properly de

fined purpose and probative effect of proof of 2. Criminal law eww589(1)-Jury Cw116-De- good character. lay in drawing special venire held not grounds for guashing venire or for continu. 9. Homicide 354—Discretion of jury in fix. ance.

ing punishment for second degree stated. Acts 1919, p. 1039, amending Acts 1909, p. Jury's discretion as to imprisonment for 319, { 32, as to drawing of special venire in murder in the second degree is subject to no capital cases, construed with Acts 1909, p. other limitation than that it shall be not less 317, $ 29, and Const. 1901, § 6, entitling ac than ten years, and they may fix punishment ensed to speedy trial, does not contemplate I at imprisonment for life.

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

0

10. Witnesses 317(2)-Rule stated for con- the jury would have the right to disregard

sideration of witness' testimony found to be any part or all of such witness' testimony, as willfully and corruptly false on a material they deem proper. Observe, however, that the issue.

law does not say you may disregard all of the If any witness willfully or intentionally or witness' testimony because that witness has with corrupt motive or malicious intent tes inadvertently testified untruly on account of tifies falsely as to any material issue, jury mistake or oversight, but it uses the word may disregard any or all of his testimony; 'willfully,' 'intentionally.'" but law does not authorize jury to disregard "If a witness intentionally testifies falsely or all of witness' testimony, because he has in- with malicious motive or corrupt motive in readvertently testified untruly on account of mis- gard to any material issue in the case, then, take or oversight.

of course, that witness' testimony may be dis

carded in whole or in part, as the jury may 11. Homicide 286(1)-Requested charge deem consistent with the truth. That is true that defendant could not be convicted if no

as to any and every witness in the case." intent to kill decedent held properly refused.

If you find the defendant guilty of murder In a murder prosecution, defendant's re- in the second degree, you would say, 'We, the quested charge that if he had no intent to kill jury, find the defendant guilty of murder in the deceased he could not be convicted of murder second degree as charged in the second count or manslaug in first degree was properly of the indictment, and fix his punishment in refused, since intentional firing of pistol at the penitentiary for not less than ten years,' another may supply all legal elements of in- or it may be any greater number of years tent, however free action may be from actual which the jury may, in their sound discretion, purpose to kill.

fix, or it may be life imprisonment in the peni

tentiary. You see there a wide range of pun. Appeal from Circuit Court, Jefferson Coun-ishment, the lowest being ten years in the pen. ty; William E. Forţ, Judge.

itentiary, the highest being life imprisonment.

That wide range of punishment is left to the Sam Scott was convicted of murder in the sound discretion of the jury within the limits second degree, and appeals. Affirmed. the law lays down. Any punishment, there

The indictment charges defendant with the fore, not less than ten years in the penitenkilling, in the first count, of Mary Barnett, it is left to the sound discretion of the jury."

tiary, which you may deem proper to impose, in the second, of Mary Burnett, and in the third of Mary Reynolds by shooting her with Kenneth C. Charlton, of Birmingham, for a pistol. The verdict fixed the penalty at, appellant. and the court sentenced defendant to serve,

Harwell G. Davis, Atty. Gen., and 0. B. 30 years in the penitentiary.

Cornelius, Asst. Atty. Gen., for the State. Requested charges 4 and 22, refused to the defendant, are as follows:

BOULDIN, J. (1) An indictment for mur"(4) If you believe from the evidence that der may identify the deceased by different the defendant had no intent to kill the deceased names in separate counts, without an alle at the time she was shot, he could not be con- gation that the name is otherwise unknown. victed of murder in either degree, nor of man- Such indictment is not subject to demurrer slaughter in the first degree." **(22) I charge you, gentlemen of the jury, 73 South. 35; Lowe v. State, 134 Ala. 154,

for misjoinder. Ex parte State, 197 Ala. 419, that there is a confliction as to whether the confession adduced in the evidence was vol 32 South. 273; Wooster v. State, 55 Ala. 217. untary, and if you believe that the confession

[2] The order setting day for trial and for was made involuntarily you must disregard it.” | the special venire was inade on September

23d. The trial was set for October 2d. MoDefendant excepted to these portions of tions to quash the venire and for a continuthe court's oral charge:

ance of the cause made the point that the “Now, the defendant, on his behalf, has the order was not made on the first day of the right to offer testimony tending to show that term of the court, nor as soon thereafter as previous to the homicide with which he is practicable. The statute says: charged he bore a good general reputation in the community where he lived or worked, and

“Whenever any person or persons stand inalso that he bore a good general reputation in dicted for a capital felony, the court must on that community for peace and quiet. Such the first day of the term, or as soon as pracevidence is competent legal evidence, and enti- ticable thereafter make an order commanding tled to be given such weight as the jury think the sheriff to summon,” etc. Acts 1919, pp. it ought to receive, in connection with the oth- | 1039, 1041. er evidence, in the question of determining the guilt or innocence of the accused. Of course, This act is amendatory of section 32, Acts the law does not intend and does not mean 1909, p. 319, which contained the above-quotthat a man, even of previous good character, ed provision. The original act provided that could be shielded by that good character alone, the venire for the trial of the cause should considered separate and apart from the other include the jurors "drawn and summoned" evidence in the case." "If any witness in the case has willfully, or

for the week of the court the trial was set. with corrupt motive or malicious intent, testi- The same statute provided for drawing of fied falsely as to any material issue in the case, the regular jury only for the first week of

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