(100 So.) the court prior to the beginning of the term of court. Acts 1909, § 15, p. 310. In Harris v. State, 172 Ala. 413, 55 South. 609, we pointed out the impracticability of complying with these provisions of the statute when capital cases are set for a later week of the term. The act of 1919, supra, struck out the word "summoned," thus making the regular jurors "drawn" for the week of the trial a part of the venire for the capital case. The effect was to make practicable the drawing of the regular jury and the special venire on the same day. The other provisions of the original statute remain, and the amended statute must be construed in connection therewith. Section 29, Acts of 1909, p. 317, reads: "It is hereby expressly declared to be the intent of the Legislature in the enactment of this law, to make the provisions hereof in the relation to the selection, drawing, summoning or impaneling of jurors directory merely and not mandatory. The jurors selected, drawn, summoned and impaneled under the provisions of this act, whether at an earlier or later day than required by this act, must and shall in all respects be deemed legal, and to possess in full, in every respect, power to perform all of the duties belonging to grand and petit jurors. And no objection can be taken to any venire of jurors except for fraud in drawing or summoning the jurors." The requirement that jurors in capital cases be drawn the first day of the term evinces a legislative purpose for a prompt trial of these grave offenses. Behind it is the thought that swift and sure punishment makes the law a greater terror to evildoers, and that the law's delay encourages crime. The accused has also the constitutional right to a "speedy, public trial, by an impartial jury of the county or district in which the offense was committed." Const. 1901, § 6. The right of the state or the defendant to move the court to set down the cause and draw the jury at the earliest practical date, and the remedy for abuse of discretion in failing so to do, are not questions now before us. It is safe to say the statute does not contemplate that such delay shall be ground for quashing a venire or continuing the cause, thus entailing further delay which the statute aims to avoid. of the indictment were not served on the defendant "forthwith," as required by the statute. Acts 1919, p. 1041. The list of jurors and copy of indictment were served four days after they were drawn and five days before the day set for trial. The court "must cause" the list of jurors and copy of indictment to be "forthwith served." It does not appear that any motion was made or the court's attention otherwise called to the delay until presented by motions to continue and to quash the venire. This was no ground to quash the venire. The court did not abuse his discretion in refusing a postponement or continuance. Harris v. State, 203 Ala. 200, 82 South. 450; Savage v. State, 174 Ala. 94, 57 South. 469; Cain v. State, 16 Ala. App. 303, 77 South. 453. [5] State witness Cunningham, a deputy sheriff, testified to a conversation with defendant in jail. As a predicate, the witness said: "I did not offer him any violence or hope of reward, and did not tell him it would be better for him if he made a statement or worse if he did not make a statement, and no one in my presence or hearing did-any of these things." That nobody threatened him or offered him violence or abuse in any way. He then testified: "I asked him why he shot Mary, and he said he didn't know unless it was the devil in him." The court did not err in admitting this evidence as a voluntary confession. McQueen v. State, 94 Ala. 50, 10 South. 433; White v. State, 133 Ala, 122, 32 South. 139; Hamilton v. State, 147 Ala. 110, 41 South. 940; Burton v. State, 107 Ala. 108, 18 South. 284; Crain v. State, 166 Ala. 1, 52 South. 31. [6] When a confession is admitted in evidence by the court, it is not within the province of the jury to inquire into its competency. Their only duty is to determine its credibility and effect. They cannot reject it as inadmissible. Charge 22, requested for defendant, was therefore properly refused. Washington v. State, 53 Ala. 29; Curry v. State, 203 Ala. 239, 82 South. 489; 4 Michie's Dig. p. 326, § 490 (2); 16 C. J. 1003, § 2421. [7] The good character of defendant can"As soon as practicable thereafter" must, not be proven by specific acts of merit, nor in the nature of things, be determined by the by evidence that he has never been convicted trial judge, as a matter of judicial discre- of crime. Patton v. State, 197 Ala. 180, 72 tion. It appears in the case at bar that the South. 401; James v. State, 14 Ala. App. 652, presiding judge of the tenth circuit had or-72 South. 299; Cauley v. State, 92 Ala. 71, 9 dered no capital causes set for trial prior to South. 456; 4 Michie's Dig. p. 157, § 230; October 2d, because of a vast number of ap- note, 14 L. R. A. (N. S.) 691; Underhill on pealed cases and jail cases. Conditions may Crim. Ev. § 245. be such that the judges, seeking to administer the law in the most effective way, find it best to deal with conditions which may lead to the commission of the graver crimes. [3, 4] Like motions were made on the ground that a list of the jurors and a copy [8] The purpose and probative effect of proof of good character of defendant was properly defined in the court's oral charge. Armor v. State, 63 Ala. 173; Hussey v. State, 87 Ala. 121, 6 South. 420; note, 20 L. R. A. 614. tion for expense of deviation from contract held properly disallowed to contractor. Where extra profit from installation of single sanitary boxes for city instead of half as many double boxes more than compensated contractor for extra cost of cutting boxes into single boxes, court properly disallowed claim for such cost. [9] "Any person who is guilty of murder | 2. Municipal corporations 250-Compensain the second degree must, on conviction, be imprisoned in the penitentiary for not less than ten years, at the discretion of the jury." The discretion of the jury as to the term of imprisonment is subject to no other limitation than that it shall be not less than ten years. They may, when in their opinion the facts require it, fix the punishment on a conviction of murder in the second degree at imprisonment for life. The court's oral charge to that effect was free from error. Miller v. State, 54 Ala. 155; Paine v. State, 89 Ala. 27, 8 South. 133. [10] The rule for the consideration of the testimony of a witness whose testimony is found to be willfully and corruptly false on a material issue was correctly defined in the oral charge of the court. Cunningham v. State, 14 Ala. App. 1, 69 South. 982. [11] The intentional firing of a pistol at the person of another, whereby death ensues, may be murder or manslaughter in the first degree, although there was no intent to kill, but merely to frighten the deceased. The intentional doing of an act so greatly dangerous to human life may supply all the legal elements of intent, however free the action may be from actual purpose to kill. Charge No. 4 was properly refused. Bailey v. State, 133 Ala. 155, 32 South. 57; Fowler v. State, 161 Ala. 1, 49 South. 788; Lewis v. State, 96 Ala. 6, 11 South, 259, 38 Am. St. Rep. 75; Lawson v. State, 155 Ala. 44, 46 South. 259; 29 C. J. p. 1295, § 69, page 1119, § 106, page 1128, § 116. The court's oral charge correctly and fully stated the law on all phases of the case. We have examined other refused charges, and find that, so far as they are correct statements of the law of the case, they were covered by the oral charge or given charges. A detailed discussion is not deemed helpful. We find no reversible error in other rulings upon evidence. Affirmed. 3. Municipal corporations 250-Contractor held not entitled to recover for extra work and materials furnished after expiration of contract. One contracting in writing with city to install stated number of sanitary boxes held not entitled to recover for installation of additional boxes, after date fixed for expiration of contract, under verbal direction of single commissioner, though original contract provided for additional boxes if so ordered. Appeal from Circuit Court, Montgomery County; Leon McCord, Judge. Action on the common counts and for breach of contract by C. Y. Bogacki against the City of Montgomery. Judgment for plaintiff, and both parties appeal. Reversed and rendered. Steiner, Crum & Weil, of Montgomery, for plaintiff. Arthur B. Chilton and Ludlow Elmore, both of Montgomery, for defendant. GARDNER, J. This is a suit by C. Y. Bogacki against the city of Montgomery upon common counts for work and labor done and material furnished, and also special counts claiming damages for breach of contract between the parties, entered into on February 4, 1918. The cause was tried before the court without a jury, and from a judgment rendered in favor of the plaintiff for $1,273.29, both plaintiff and defendant have prosecuted an appeal. [1] There was a special finding of fact by. the court pursuant to request of the parties. Under our statute, as it now exists (section 5361, Code 1907), the special finding of fact ANDERSON, C. J., and SOMERVILLE is here subject to review. Jones v. Hines, and THOMAS, JJ., concur. 205 Ala. 145, 87 South..531; Cons. Motor Co. v. Malik, 207 Ala. 120, 92 South. 262. [2] The contract of February 4, 1918, was in writing, and executed in full compliance with all statutory requirements. Section 1183, Code 1907; City of Mobile v. Mobile Elec. Co., 203 Ala. 574, 84 South. 816. By BOGACKI v. CITY OF MONTGOMERY, and this contract the plaintiff agreed to furnish, cross-appeal. (3 Div. 596, 596a.) I and the defendant city agreed to accept, 6,000 or more sanitary boxes installed at an agreed price and upon conditions therein stated. It is well established by the proof, and, indeed, conceded by the plaintiff, as we read the evidence, that the 6,000 boxes were furnished and paid for. As to the original 6,000 boxes, however, the plaintiff insists that under the direction of the city he was re (Supreme Court of Alabama. Feb. 14, 1924. Rehearing Denied May 22, 1924.) 1. Appeal and error 850(1)-Special finding of fact subject to review by Supreme Court. Under Code 1907, § 5361, special finding of fact by court at parties' request is subject to review by Supreme Court. Ala.) (100 So.) We therefore do not find ourselves in accord with the finding of fact by the court below, to the effect that all the work done and material furnished was under the contract of February 4, 1918. We have previously expressed our opinion that the plaintiff has shown no right to recover upon the original written contract, which had been fully performed in the year as therein provided, and the only change made therein resulted in a benefit rather than a detriment to the plaintiff. quired to cut 1,900 double boxes into single (limit. The language as to the life of the conboxes at a cost of 50 cents extra, which con- tract is plain and unambiguous. stitutes one item in his claim of damages. The trial court disallowed this claim, and The evidence of the we think properly so. plaintiff himself discloses that the extra profit realized from the installation of the two single boxes, instead of one double box, more than compensated him for the 50 cents extra cost per box for the change, and it clearly appears that upon this transaction he made a profit, rather than suffered a loss. It is evident that no recovery was allowed by the court below as to any matter growing out of the 6,000 boxes provided for in the original written contract. [3] The contract contains the following provision: "This contract shall become void one year from the date of its award." By virtue of this provision, therefore, this contract became of no binding force subsequent to February 4, 1919. Subsequent to that date the plaintiff was directed by one of the commissioners to furnish some additional boxes to be installed outside of the city limits, but within the police jurisdiction of the city. Some of these were so installed, and it is evident that the damages awarded to the plaintiff by the court below rested upon an alleged breach of the contract for additional boxes. This "second contract," as it is termed by the plaintiff, was entered into in the spring of 1919; the plaintiff testifying that it must have been in April or May of that year. As to this "second contract" the plaintiff acted solely under the verbal direction of one no ordiof the commissioners; there was nance, no meeting of the commissioners, and no written contract, and, indeed, no contract of any character, with the city commission, but a mere verbal direction of one commissioner, as above indicated, and no subsequent ratification thereof by the city commission. Under these circumstances, we are of the opinion the case of Coleman v. Town of Hartford, 157 Ala. 550, 47 South. 594, is decisive adversely to plaintiff's recovery. The order for these additional boxes cannot be rested upon the original contract of February 4, 1918, although such contract provides for boxes additional to the 6,000, if so ordered; this for the reason that the formal written contract expressly provided that it should be void after the expiration of one year from its date. The verbal order by the commissioner, therefore, a few months after the expiration of this time, could no more be rested upon the written contract than had it been several years thereafter. The provisions in the formal written contract for additional boxes must be construed in connection with the language as to the limitation of the life of such contract, and cannot be construed to extend beyond that It results, therefore, in our opinion, the plaintiff was not entitled to recover, and the court below committed error in rendering judgment in his favor. The judgment of the court below will be reversed, and, the cause having been submitted to the court without a jury, a judgment will be here rendered in favor of the city. Reversed and rendered. ANDERSON, C. J., and SAYRE and MILLER, JJ., concur. SOUTHERN RY. CO. v. BLACKWELL. (6 Div. 110.) (Supreme Court of Alabama. May 1, 1924.) 1. Carriers 256-Carrier may exact extra charge for passenger's failure to purchase ticket. A carrier may exact an extra charge for passenger's failure to purchase a ticket if it affords passenger a reasonable opportunity to do so. 2. Appeal and error 1033 (3)-Defendant cannot complain of allegation requiring plaintiff to assume unnecessary burden of proof. Defendant could not complain in a passenger's action for damages for ejection of an alunnecessary burden of proof. legation which required plaintiff to assume an 3. Carriers 381(4)-Evidence held not to show reasonable opportunity afforded passenger to buy ticket. In passenger's action for ejection for rechase ticket, it appearing that plaintiff's atfusing to pay excess fare on failure to purtempt to buy ticket was foiled by other passengers ahead of him, and it not appearing that had plaintiff seasonably presented himself he would have been able to purchase ticket, carrier failed to show that plaintiff had reasonable opportunity to purchase ticket. 4. Carriers 381(1)-Carrier has burden of showing that it afforded passenger reasonable opportunity to purchase ticket to justify extra charge. In order to justify its exaction of an extra charge for failure to purchase ticket carrier has burden of showing that it afforded a pros For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes pective passenger a reasonable opportunity to the allegation shown he assumed an unnecespurchase a ticket. 5. Carriers 357-Demand of excess fare held not justified by conductor's ignorance of lack of opportunity to purchase ticket. Where passenger without ticket was ejected for refusal to pay excess fare, conductor could not excuse himself on ground that he was ignorant that passenger did not have reasonable opportunity to purchase ticket. 6. New trial 155-Court held to have no power to deal with motion filed within less than but not submitted for hearing until after 30 days after judgment. Court lost its power to deal with motion for new trial filed on April 16, 1923, less than 30 days after judgment, where no order was made as to future date of hearing, and without intervening order motion was submitted on May 18, 1923. sary burden of proof, and of this appellant is not in a position to complain. [3-5] Appellant's further contention along the same line is that on the evidence appellee failed to make a seasonable effort to purchase a ticket within the reasonable time afforded for that purpose on the occasion in question. The substance of the evidence was that appellee attempted during 7 or 8 minutes before defendant's train pulled away from the station to buy a ticket, but that, owing to the crowd of prospective passengers ahead of him awaiting their turn at the ticket window, he was unable to get a ticket. How long the window had been open for the sale of tickets does not appear; it does not appear, therefore, that had appellee presented himself seasonably at the window he would have been able to purchase a ticket, Appeal from Circuit Court, Walker Coun- or, to state the proposition in another form, ty; Ernest Lacy, Judge. Action for damages by Hobart Blackwell against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed. Bankhead & Bankhead, of Jasper, for appellant. it was not made to appear that, had the ticket window been open for a reasonable time for the sale of tickets, the crowd ahead of appellee would not have been out of the way. In order to justify its exaction of the extra charge the burden was on appellant to show that it afforded prospective passengers a reasonable opportunity to purchase tickets. This it failed to show. Nor can the conduc Curtis, Pennington & Pou, of Jasper, for tor be excused-and so, through him, appelappellee. SAYRE, J. Appellee recovered judgment against appellant for that appellant's conductor ejected appellee from a train. Appellee had no ticket, though he boarded the train at a station where a ticket office was maintained, and was ejected because he refused to pay an excess charge of 15 cents authorized and required by the rules of appellant in case the passenger fails to present a ticket. Appellee's complaint, alleging all other circumstances of his case in great detail, alleged that at Parrish, the station at which he boarded the train, he was not "afforded an opportunity to buy a ticket," and the ground of demurrer now insisted upon is that the allegation should have been that he was not afforded a "reasonable opportunity." lant on the ground that he was ignorant whether appellee had had reasonable opportunity to purchase a ticket. For the purpose in hand the conductor was appellant's alter ego, bound to know whatever appellant through its other agents knew. L. & N. R. Co. v. Harper, supra. The general affirmative charge requested by appellant was therefore well refused. [6] In its motion for a new trial appellant assigned as ground, among other things, that the damages assessed were excessive. This motion was filed April 16, 1923, less than 30 days after judgment. But at that time no order was made as to the future date of its hearing, and without intervening order it was submitted to the, court and overruled May 18, 1923. By this hiatus of 30 days the court lost its power to deal with the motion. Ex parte Margart, 207 Ala. 604, 93 South. 505; Mt. Vernon Mills v. Judges, 200 Ala. 168, 75 South. 916. We find no error. Affirmed. [1, 2] Appellant had the right to adopt and enforce a regulation exacting an extra charge in case of the passenger's failure to purchase a ticket, provided it afforded the pas senger a reasonable opportunity to purchase a ticket. L. & N. R. Co. v. Harper, 203 Ala. 400, 83 South. 142. Construing his complaint ANDERSON, C. J., and GARDNER and against appellee (plaintiff) on demurrer, by | MILLER, JJ., concur. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (100 So.) delivered f. o. b. cars Mobile; these staves J. H. HAMLEN & SON, Inc., v. ROSEN- when shipped to be dotted with two red dots, GRANT. (I Div. 320.) (Supreme Court of Alabama. April 24, 1924.) 1. Evidence 16-Court judicially knows meaning of "f. o. b. cars." Court judicially knows that seller's agreement to deliver "f. o. b. cars at Mobile" means delivery on cars at Mobile without expense to buyer. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, F. 0. B.] 2. Sales 83-Seller held under no duty to ship unless buyer furnished shipping instruc tions and cars. Though ordinarily seller's agreement to deliver "f. o. b. cars" puts burden of procuring cars on seller, where no time was fixed for delivery, but correspondence showed that seller was to ship on buyer's shipping instructions, as buyer could from time to time procure cars, held, that seller was under no obligation to act until buyer gave instructions and procured cars. 3. Sales 418(4)-Buyer held entitled to nominal damages only where goods have no market value. Where goods have no market value, buyer is not entitled to more than nominal damages for seller's breach, burden being on buyer to prove damages. 4. Sales 418(2)—In absence of shipping instructions from buyer, etc., seller held not in default. Where shipment was to be made when buy er furnished shipping instructions and cars, held that, in absence of arrangements for cars and instructions, seller could not be put in default so as to fix time for measuring damages by failure to answer buyer's demand for ship ment. Appeal from Circuit Court, Mobile ty; Claude A. Grayson, Judge. and bundled, we paying for the expense of "J. H. Hamlen & Son, The complaint alleges the reduction of the number of staves to 50,000. Harry T. Smith & Caffey, of Mobile, for appellant. R. H. & R. M. Smith, of Mobile, for appellee. SAYRE, J. Plaintiff, appellant, declared as for a breach of contract whereby, in substance, defendant agreed to sell and plaintiff to buy 50,000 claret staves at $130 per thousand pieces, f. o. b. cars at Mobile. Of these 12,000 were delivered and paid for. Plaintiff sought damages for a failure to deliver the rest, 38,000. Under the court's instruction there was a verdict for plaintiff, and its damages were assessed at 1 cent. Plaintiff appeals. Plaintiff did business at Portland, Me.; defendant at Mobile, in this state. The parties reached agreement after an interchange of letters and telegrams too numerous to be repeated. Plaintiff's understanding and statement of the contract appears in its letCounter of October 2, 1917. The requirement as to bundling the staves as afterwards modified, and is now of no importance. Action by J. H. Hamlen & Son, Incorpo[1, 2] It will be noted that the staves were rated, against George M. Rosengrant, for to be delivered "f. o. b. cars at Mobile." The damages for breach of contract. From a court knows judicially that the quoted stipujudgment awarding nominal damages, plain- lation meant that the staves were to be detiff appeals. Transferred from Court of Ap-livered on cars at Mobile without expense peals under Acts 1911, p. 449, § 6. Affirmed. to plaintiff. Sheffield Furnace Co. v. Hull The letter of plaintiff to defendant, dated | Coal & Coke Co., 101 Ala. 446, 14 South. 672. October 2, 1917, is as follows: And, ordinarily, it may be conceded, this stipulation puts upon the seller the burden of procuring the cars in which to make shipment. Elliott v. Howison, 146 Ala. 590, 40 South. 1018. But this obligation rests upon an implication common to all contracts in the absence of express stipulation to the contrary. The reason for this implication is thus stated in John O'Brien Lumber Co. v. Wilkinson, 117 Wis. 468, 94 N. W. 337: "Portland, Maine, October 2, 1917. "Mr. G. M. Rosengrant, Mobile, AlabamaDear Sir: We are in receipt of your two messages, one of September 29, and the other of October 1, (see inclosed copies), and we have wired you this morning in answer: 'Will take staves per correspondence accepting your regular standard French claret inspection.' We now understand that we have definitely closed with you for 100,000 36" French White Oak claret staves, of your usual inspection for "The general rule is that one who undertakes French claret staves, but at least 70% shall be to accomplish a certain result, by necessary prime staves, and 30% good, merchantable sec-implication agrees to supply all means necesonds, at the price of $130 per thousand pieces, sary to such result," For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |