Court of Appeals under Act of 1911, p. 449, 81 reason of the construction of said road, I here6. Reversed and remanded. Counts 1 and 3, as amended, are as follows: "(1) The plaintiffs claim of the defendant the sum of $10,000 damages for trespass by defendant on the following tract of land, viz.: 'Begin at a point where the west boundary line of the S. E. 4 of the N. E. 4 intersects the north line of the right of way of the public road; thence run northerly along said west boundary line 227 feet more or less to the southwest corner, the land of Mrs. Ella Cole; thence east along the south line of said Mrs. Cole land 155 feet then south and parallel to the west boundary line 68 feet more or less to the north side of the public road; thence southwesterly along said road 200 feet more or less to the beginning'-belonging to the plaintiffs and for placing poles and wires over and along said property. And plaintiffs further allege that the poles and wires so placed by defendant interfered with and impeded plaintiffs' ingress and egress to and from said property, the wires so placed by defendant were charged by it with electric current of a voltage making them dangerous to the life of human beings and other living, creatures and endangered the lives of plaintiffs and their horses, cows, and other stock, and said wires were not insulated but were left uninsulated so that any contact therewith by persons or animals would subject them to the force of said electric current, all proximately decreasing the value of the use and occupation of said property and the value of said property was proximately decreased thereby, all to plaintiffs' damages as aforesaid, hence this suit." "(3) For this count plaintiffs adopt all of count 1 as amended and add thereto the following additional averments: Plaintiffs further allege that said trespass was willfully done and committed and willfully continued by defendant after the plaintiffs had warned the defendant not to do and commit the same, and the defendant acted in gross, reckless, and willful disregard of plaintiffs' rights in and to the said property, and in addition to actual damages plaintiffs claim of defendant punitive damages." Defendant offered in evidence the following deed conveying the land involved to Jefferson county: "State of Alabama, Jefferson County. "Know all men by these presents that we, the undersigned, of the county and state aforesaid, in and for the consideration of the benefits to us and to the public of said road, do hereby grant, bargain, sell, and convey into Jefferson county, its successors or assigns, a right of way hereinafter described, over and across the lands of the undersigned for a public road; which right of way shall be 50 feet in width or 25 feet in width on each side of the center line of the said road as it is now located and staked out by the county engineers across the said lands, which are located and described as follows, to wit: As per map on file in the county highway engineer's office. If any fencing is to be moved the county will do so at their expense. And for and in consideration of the benefit to my property by by release the county from all consequential damages, present or prospective, to my property arising out of the construction, maintenance, or repair of said road, and that said road is a benefit to my said property is hereby admitted and acknowledged. "In witness whereof, we, the parties hereto, have set our hands and seal this 26th day of December, 1919. W. F. Cornelius. "N. A. Cornelius. "Witness: W. E. Moore, by W. F. C." The court sustained plaintiffs' objection to its introduction, and instructed the jury not to consider it. Martin, Thompson & Turner and Hobart A. McWhorter, all of Birmingham, for appellant. Black, Harris & Foster, of Birmingham, for appellees. ANDERSON, C. J. [1] The counts upon which this case was tried, amended counts 1 and 3, were in trespass, and the things complained of and damages claimed constituted a single and continuous trespass and injuries proximately resulting therefrom and were not subject to the defendant's demurrer. The cases relied upon by appellant's counsel are unlike this one. The case of Sudduth v. Central of Georgia R. R., 197 Ala. 393, 73 South. 28, involved a complaint which charged in the same count trespass and case; that is, trespass in entering and laying the tract and an independent wrong as to the operation of trains. In the case of So. R. R. v. McIntyre, 152 Ala. 223, 44 South. 624, the count condemned charges trespass on the plaintiff's premises and in addition thereto that defendant created an obstruction, not on the plaintiff's land, but elsewhere, which interfered with the ingress and egress of the plaintiff. [2-5] As we understand, the theory upon which this case was tried was that the poles were placed and the wires were strung within the 50 feet of what purported to be a public highway, and not on the plaintiffs' land exclusive of said 50 feet; the defendant therefore contending that it committed no trespass, as the plaintiffs did not have the ownership and possession of said strip, and that it was owned and possessed by Jefferson county for the benefit of the public. The plaintiffs' contention was that, nothwithstanding it was within the limits of what purported to be the highway, said highway was located on their land which had never been legally conveyed or dedicated; that the strip in question was a part of the homestead, nothwithstanding it was owned by the plaintiffs jointly, and, being a part of the homestead, there could have been no dedication except by a conveyance and separate acknowledgment by the wife. It may be conceded that the contention is correct if (100 So.) For the error above mentioned, the judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded. SOMERVILLE, THOMAS, and BOULDIN, JJ., concur. RICHARDSON v. STINSON. (7 Div. 469.) (Supreme Court of Alabama. April 17, 1924. Rehearing Denied May 15, 1924.) 1. Trial 169-As against requested general charge complaint held to state cause of action. 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 by parol or in writing without the statutory formalities essential to the conveyance of the homestead. Hill v. Houk, 155 Ala. 448, 46 South. 562; East Birmingham v. Birmingham Machine Co., 160 Ala. 461, 49 South. 448; West End v. Eaves, 152 Ala. 334, 44 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? The undisputed evidence shows that the place was worth $3,000 at the time of the conveyance by W. F. Cornelius to Jefferson county, and the trial court erred in excluding said deed in so far as the same went to his interest in the land. True, as suggested in brief of counsel for appellee, a tenant in common is entitled to a homestead exemption to the land held in common, but this does not give each owner the right to claim the full exemption to the joint property. The homestead is not increased on account of their fractional interests in the land, so as to make up in quantity what is wanting in extent of ownership. Snedecor v. Freeman, 71 Ala. 140; Campbell v. Noble, 145 Ala. 233, 41 South. 745. The result is each of these plaintiffs would be entitled to an exemption not in excess of $1,000 in value each, and not to the extent of $2,000 each. The homestead being greater in value than $2,000, the sale or dedication of the excess by the owner operates as a selection of the remainder as the homestead to the exclusion of the alienated tract. Williams v. Kilpatrick, 195 Ala. 563, 70 South. 742. The plaintiffs' proof shows that the place was worth $3,000, and there was no proof offered that the disposition of the strip in question reduced the value of the remainder below $2,000. [6, 7] As to the interest of Mrs. Cornelius, while there was proof that she consented to building the road, she did not convey her interest in the land as the statute requires, which was essential to a valid dedication. Vansandt v. Weir, 109 Ala. 104, 19 South. 424, 32 L. R. A. 201. The evidence shows that the deed made by the husband included her signature, which was placed there by him without her knowledge or consent. Whether this was or was not a fraud on his part, she cannot be charged with same by way of an equitable estoppel as the proof shows that she was ignorant of said deed when the road was constructed. Whether or not there is a liability to W. F. Cornelius, who dedicated his interest as for an additional burden or servitude upon the highway upon which he is an adjacent owner, we do not determine, as neither counts 1 or 3 Complaint charging that plaintiff had lien it, received and disposed of the cotton, and has on cotton, that defendant, with knowledge of failed and refused after demand to account to plaintiff for proceeds, whether deemed in case or assumpsit, held to state cause of action, as against defendant's request for general charge, on ground that it failed to do so. 2. Trial 169-Defendant not entitled to general charge because of one count in consolidated case not stating cause of action. Even if complaint in one of three cases, involving the same law and facts and between the same parties, fails to state a cause of action, defendant is not on this ground, after the counts in the other cases, which are unquescases have been consolidated, whereby the tioned, have become part of the consolidated case, entitled to the general charge, instructing a finding against plaintiff as to the entire case. 3. Evidence 595-Demand and refusal may be inferred, and need not be proved in exact words. Demand and refusal need not be proved in exact words, but it is enough that there is ample evidence from which the jury can infer them. 4. Evidence 374(2)—Execution prima facie proven by subscribing witness. It is sufficient proof of the execution of a cotton crop mortgage by P., to render it prima facie admissible, that the subscribing witness testified that P. could not write, and told H. to sign for P., which H. did, and that P. made his mark. 5. Witnesses 275 (2)-Sustaining objection to cross-examination of plaintiff as to former business practice held not error. Sustaining objection to questions on crossexamination of plaintiff as to his former practice of slipping notes over a man to catch him, or of what he told K. when he took a note from him like the one in question, held not er ror. use common 6. Trial 311-Jury could The jury was not conclusively bound by defendant'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 SO.-14 in question, as they must have had some common knowledge of what cotton was worth, when defendant received it, a few months before trial. On Rehearing. 7. Judgment ~237 (4)—Held in effect for defendant struck out by amendment of complaint. were consolidated and tried as one case; two of the suits having started in the justice of the peace court and appealed to the circuit court. It is insisted that the defendant's requested charges 1 and 2, the general charge, should have been given, for the reason that the complaint in the third case, that is, the 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 complaint was amended by striking it out as defendant, leaving only an individual defendant, and judgment rendered being against him alone. 8. Costs 90-Should be allowed defendant stricken as party by amendment of complaint. Judgment for costs incurred by defendant struck out, as a party by amendment of complaint should have been rendered by trial court. 9. Appeal and error 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. Omission to render judgment for costs for defendant struck out as party by amendment of complaint should not be raised for first time in appellate court, and that too by brief merely, without assignment of error. 10. Appeal and error 1149-Appellate court, If having proper data, could amend judgment to allow costs to party struck out. Appellate court could, if having proper data, correct judgment to allow costs to a party struck out by amendment of complaint. Appeal from Circuit Court, Cherokee County; W. W. Haralson, Judge. may be subject to demurrer, but which was not interposed, we do not think it fails to state a cause of action whether it be deemed in case or assumpsit. It charges that plaintiff had a lien on the cotton; that defendant, with knowledge of said lien, received and disposed of said cotton, and has failed and refused, after demand, to account to the plaintiff for the proceeds of said sale. More the general charge as to the counts in the other cases, which became a part of the consolidated case, and which are unquestioned, and said charges instruct a finding against the plaintiff as to the entire case. [3] Nor do we think that the defendant was entitled to the general charge because the plaintiff failed to prove a demand and refusal as averred in the complaint. True, the plaintiff did not prove in exact words an express demand and refusal, but there was ample evidence from which the jury could have inferred a demand and refusal. The plaintiff testified as to seeing the defendant and claiming the cotton, and that the sale and the defendant's witness Pope testified that defendant told him after the first bale Action by S. L. Stinson against J. K. Rich-price was furnished him by said defendant. ardson for destruction of mortgage liens. Judgment for plaintiff, and defendant ap peals. Transferred from the Court of Ap peals under Acts 1911, p. 449, section 6. Affirmed. The complaint alleges that the plaintiff is the holder of a mortgage executed to him by one J. J. Pope to secure an indebtedness which remains unpaid, and conveyed to plaintiff the equitable title to all crops of cotton raised or caused to be raised by Pope during the year 1922; that Pope raised cotton subject to plaintiff's mortgage, and the defendant, with knowledge, did buy or receive a bale of cotton, of the value stated, and sold or removed the same beyond plaintiff's reach, destroying his lien, etc. On examination of plaintiff's witness Howell he was shown the mortgage, the basis of plaintiff's claim, and testified that he had signed the same for Pope, who could not write; that Pope made his mark, and he witnessed it. Hugh Reed, of Center, for appellant. ANDERSON, C. J. [1, 2] This record presents three cases which involve the same law and facts between the same parties and had been sold that plaintiff had claimed the cotton. [4] There was sufficient proof of the execu• tion of the mortgage by Pope to render it prima facie admissible as evidence. The subscribing witness, Howell, testified that Pope could not write, and told him to sign for him, which he did, and Pope made his mark. [5] There was no error in sustaining the objection to the questions to the plaintiff on cross-examination as to his former practice or custom of slipping notes over a man to catch him or of what he told one Kilgore when he took a note from him like the one in question. [6] We cannot say that the trial court erred in refusing the motion for a new trial because the verdict was excessive. True, the verdict about equals the value of the cotton as stated to the plaintiff by the defendant, but the jury could have inferred that the rent, one-fourth, had been excluded by defendant. Moreover, the jury was not con. clusively bound by the statement of the defendant as to the value of the cotton, as they must have had some common knowledge of what cotton was worth, at the time the de (100 So.) fendant received same, just a few months before the trial. that delay in drawing special venire shall be a ground for quashing venire, or for continuThe judgment of the circuit court is af- ance, "as soon as practicable" being determin firmed. Affirmed. SOMERVILLE, THOMAS, and MILLER, JJ., concur. On Rehearing. ed by trial judge in his discretion. 3. Criminal law 589(1) - Discretion not abused by denying continuance for delay in serving copy of indictment and list of ju rors. Court did not abuse its discretion in denying a continuance in a murder prosecution for delay in serving defendant with a list of jurors and a copy of indictment under Acts 1919, p. 1041, where no motion was made or court's attention called to delay until presented by motions to continue and to quash venire. murder prosecution with copy of indictment and list of jurors "forthwith" no ground for quashing venire. Failure to serve defendant in a murder prosecution with a copy of indictment and a list of jurors "forthwith," as required by Acts 1919, p. 1041, constituted no grounds for quashing venire. ANDERSON, C. J. It is urged that the court did not consider or treat the seventh assignment of error, and which is as follows: "The court erred in failing to render a judgment in favor of defendant Farmers' & Mer-4. Jury 116-Failure to serve defendant in chants' Bank." The judgment entry shows that the complaint was amended by striking out the bank as party defendant, and this left only the appellant as party defendant, and the judgment rendered was against him alone and not the bank, and was in effect a judgment in favor of the bank. Handly Reeves & Co. v. Lawley & Co., 90 Ala. 527, 8 South. 101. True, the trial court should have rendered judgment for the bank for cost incurred by it, but this omission is not assigned as error, and should have been brought to the attention of the trial court at the time of the amendment, the rendition of the judgment or by motion to retax, and not for the first time in this court by brief and without an assignment of error. True, this court would no doubt have the power to correct if it had the proper data (Long v. Gwin, 188 Ala. 196, 66 South. 88; Neff v. Edwards, 81 Ala. 246, 2 South. 88), but we do not feel called upon to do so upon the present condition of the record. Rehearing denied. SCOTT v. STATE. (6 Div. 903.) (Supreme Court of Alabama. April 10, 1924. Rehearing Denied May 15, 1924.) 1. Indictment and Information 128-Indictment for murder not subject to demurrer for designating decedent by different names in each count. An indictment for murder was not subject to demurrer for misjoinder, though deceased was designated by different names in each count, without an allegation that her name was otherwise unknown. 2. Criminal law 589(1)-Jury 116-Delay in drawing special venire held not grounds for quashing venire or for continu ance. Acts 1919, p. 1039, amending Acts 1909, p. 319, § 32, as to drawing of special venire in capital cases, construed with Acts 1909, p. 317, § 29, and Const. 1901, § 6, entitling accused to speedy trial, does not contemplate 5. Criminal law 531 (3)—Defendant's statement as to reason for killing decedent held admissible as voluntary confession. Defendant's statement that he did not know why he shot deceased, unless it was the devil in him, was admissible as a voluntary confession, where deputy sheriff testified that it was made to him without threats or violence to defendant. 6. Criminal law 736(2)-Jury cannot inquire into competency of confession admitted in evidence by court. Defendant's requested charge that jury should disregard his confession if it was made involuntarily was properly refused, since jury cannot inquire into competency of a confession admitted in evidence; their only duty being to determine its credibility and effect. 7. Criminal law 380-Defendant's good character not provable by specific acts or absence of convictions of crime. Defendant's good character cannot be proven by specific acts of merit nor by evidence that he has never been convicted of crime. In a murder prosecution, court's charge that defendant had right to offer testimony of good general reputation for peace and quiet, that such evidence was entitled to such weight as jury thought it ought to receive in connection with other evidence, but that good character alone was not a defense, properly defined purpose and probative effect of proof of good character. 9. Homicide 354-Discretion of jury in fixing punishment for second degree stated. Jury's discretion as to imprisonment for murder in the second degree is subject to no other limitation than that it shall be not less than ten years, and they may fix punishment at imprisonment for life. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 10. Witnesses 317(2)-Rule stated for consideration of witness' testimony found to be willfully and corruptly false on a material issue. If any witness willfully or intentionally or with corrupt motive or malicious intent testifies falsely as to any material issue, jury may disregard any or all of his testimony; but law does not authorize jury to disregard all of witness' testimony, because he has inadvertently testified untruly on account of mistake or oversight. 11. Homicide 286(1)-Requested charge that defendant could not be convicted if no intent to kill decedent held properly refused. In a murder prosecution, defendant's requested charge that if he had no intent to kill deceased he could not be convicted of murder or manslaughter in first degree was properly refused, since intentional firing of pistol at another may supply all legal elements of intent, however free action may be from actual purpose to kill. Appeal from Circuit Court, Jefferson ty; William E. Fort, Judge. the jury would have the right to disregard any part or all of such witness' testimony, as they deem proper. Observe, however, that the law does not say you may disregard all of the witness' testimony because that witness has inadvertently testified untruly on account of mistake or oversight, but it uses the word 'willfully,' 'intentionally.'" "If a witness intentionally testifies falsely or with malicious motive or corrupt motive in regard to any material issue in the case, then, of course, that witness' testimony may be discarded in whole or in part, as the jury may deem consistent with the truth. That is true as to any and every witness in the case." "If you find the defendant guilty of murder in the second degree, you would say, 'We, the jury, find the defendant guilty of murder in the second degree as charged in the second count of the indictment, and fix his punishment in the penitentiary for not less than ten years,' or it may be any greater number of years which the jury may, in their sound discretion, fix, or it may be life imprisonment in the penitentiary. You see there a wide range of punCoun-ishment, the lowest being ten years in the penitentiary, the highest being life imprisonment. That wide range of punishment is left to the sound discretion of the jury within the limits the law lays down. Any punishment, therefore, not less than ten years in the penitenit is left to the sound discretion of the jury." tiary, which you may deem proper to impose, Sam Scott was convicted of murder in the second degree, and appeals. Affirmed. The indictment charges defendant with the killing, in the first count, of Mary Barnett, in the second, of Mary Burnett, and in the third of Mary Reynolds by shooting her with a pistol. The verdict fixed the penalty at, and the court sentenced defendant to serve, 30 years in the penitentiary. Requested charges 4 and 22, refused to the defendant, are as follows: "(4) If you believe from the evidence that the defendant had no intent to kill the deceased at the time she was shot, he could not be convicted of murder in either degree, nor of manslaughter in the first degree." "(22) I charge you, gentlemen of the jury, that there is a confliction as to whether the confession adduced in the evidence was voluntary, and if you believe that the confession was made involuntarily you must disregard it." Defendant excepted to these portions of the court's oral charge: "Now, the defendant, on his behalf, has the right to offer testimony tending to show that previous to the homicide with which he is charged he bore a good general reputation in the community where he lived or worked, and also that he bore a good general reputation in that community for peace and quiet. Such evidence is competent legal evidence, and entitled to be given such weight as the jury think it ought to receive, in connection with the other evidence, in the question of determining the guilt or innocence of the accused. Of course, the law does not intend and does not mean that a man, even of previous good character, could be shielded by that good character alone, considered separate and apart from the other evidence in the case." "If any witness in the case has willfully, or with corrupt motive or malicious intent, testified falsely as to any material issue in the case, Kenneth C. Charlton, of Birmingham, for appellant. Harwell G. Davis, Atty. Gen., and O. B. Cornelius, Asst. Atty. Gen., for the State. BOULDIN, J. [1] An indictment for murder may identify the deceased by different names in separate counts, without an allegation that the name is otherwise unknown. Such indictment is not subject to demurrer 73 South. 35; Lowe v. State, 134 Ala. 154, for misjoinder. Ex parte State, 197 Ala. 419, 32 South. 273; Wooster v. State, 55 Ala. 217. [2] The order setting day for trial and for the special venire was inade on September 23d. The trial was set for October 2d. Motions to quash the venire and for a continuance of the cause made the point that the order was not made on the first day of the term of the court, nor as soon thereafter as practicable. The statute says: "Whenever any person or persons stand indicted for a capital felony, the court must on the first day of the term, or as soon as practicable thereafter make an order commanding the sheriff to summon," etc. Acts 1919, pp. 1039, 1041. This act is amendatory of section 32, Acts 1909, p. 319, which contained the above-quoted provision. The original act provided that the venire for the trial of the cause should include the jurors "drawn and summoned" for the week of the court the trial was set. The same statute provided for drawing of the regular jury only for the first week of |