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(100 So.)

or computing; but it is also used figurative- jury under the law as the court has given ly in the sense of an "adjustment of reward it to you." It omits a consideration of the or penalty on the basis of merit." New evidence. Standard Dictionary. In the latter sense it is commonly and frequently used as a prophecy or a threat of punishment, and it was for the jury to say what defendant meant by its use on this occasion, in the light of the evidence before them. We think the statement was properly admitted.

Complaint is made of other rulings on the evidence. We have examined all of them, and find no prejudicial error.

[6] Refused charge 3 sought to exclude a conviction of murder without excluding the existence of malice, and was also argumentative.

[7] Refused charges 5 and 12 correctly distinguished between murder and manslaughter in the first degree, but they were specifically covered by given charge 5, and also by the oral charge.

Refused charge 6 was fully covered by the oral instructions.

Refused charges 15, 16, and 17, in so far as they invoked the principles of self-defense, were fully, fairly, and correctly covered by the oral charge.

[13] Refused charge 18, on the mode of considering dying declarations, was an argument based on selected and partial facts, properly to be made by counsel, and not by the trial judge.

[14, 15] Refused charge 19, that "the law requires dying declarations to be considered with great caution," is not a proper instruction, as was expressly held in Brown v. State, 150 Ala. 25, 43 South. 194. The same ruling has been made as to the consideration of admissions by a defendant. Carwile v. State, 148 Ala. 576 (B), 39 South. 220. This does not deny the existence of the factors which weaken the reliability of dying declarations, and impair their value as evidence, and which have been often pointed out by courts and text-writers. See, especially, Shell v. State, 88 Ala. 14, 17, 7 South. 40;

[8, 9] Refused charges 8, 9, and 11, are based on the theory that deceased made a second dying declaration in writing which|1 Greenl. on Ev. (16th Ed.) 253,. § 162; 30 was in the possession of the prosecution, and Corp. Jur. 261, § 503; Id. 279, 280, § 521. sought to instruct the jury that the failure And it has often been said that dying decof the prosecution to offer that statement larations should be received and weighed in evidence authorized them to presume that with caution. Shell v. State, supra; Kenit was less favorable to the state than the nedy v. State, 85 Ala. 326, 331, 5 South. dying declaration in evidence. There was 300; Justice v. State, 99 Ala. 180, 181, 13 no evidence, however, that the solicitor had South. 658; Parker v. State, 165 Ala. 1, 10, any such statement in his possession, or 51 South. 260. The jury should, of course, had ever even heard of its existence, or, be instructed that a dying declaration should indeed, that it was made in writing. One be considered in the light of the circumwitness stated merely that "an officer came stances under which it was made, and should to the hospital and took his [deceased's] tes-be given such credence as in their judgment timony in regard to the matter while we it is entitled to receive; but the impeachment were preparing for the operation." Who the of its credibility and the impairment of its officer was, or what kind of an officer, or at weight are matters for argument by counsel, whose instance he came, does not appear. and not for instruction by the trial judge. Under such circumstances no presumption The objection to the instruction under concould arise as to the character of the state-sideration is that it singles out particular ment referred to. Jackson v. State, 77 Ala. evidence for suspicion, and its tendency is 18 (4). Moreover, if the solicitor had had to mislead the jury. such a statement in his possession, defendant could have required its production by a rule of the court if he thought it was favor able to him.

[10] Refused charge 10 was purely argumentative.

Refused charge 14 was faulty in several details, but its entire substance and principle were fully and fairly covered by the oral charge.

[11] Refused charge 15, on the law of selfdefense, omits the predicate of a necessity, apparent or real, for the killing, and assumes the existence of peril.

It is to be observed, however, that the principle invoked was in fact given to the jury in charge 20, viz. "that dying declarations are admitted in evidence out of necessity, but should be admitted and considered with real caution in connection with all the evidence."

For the reasons stated, all of the charges above reviewed were refused without error. We find no prejudicial error in the record, and the judgment will be affirmed.

Affirmed.

ANDERSON, C. J., and THOMAS and

[12] Refused charge 16, on self-defense, instructs that the matter "is entirely with the MILLER, JJ., concur.

The case was tried upon count 1, chargBRADLEY et al. v. LEWIS. (6 Div. 137.) ing simple negligence on the part of defend

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proper.

In personal injury action where husband, testifying as to wife's condition since injury, stated that "you might call her a nervous wreck from it," notwithstanding added words "from it" invaded jury's province as to issue, where motion to exclude included only "the nervous wreck" part, there was no error in failing to sustain it.

3. Carriers 317(5)-Excluding irrelevant report of car inspectors as to condition of car step not error.

Where injury was alleged to have been caused by defect in floor of street car and not in the step, excluding report of car inspectors made a week after injury was not error.

4. Evidence 359(1)-Excluding irrelevant photographs of condition of car step not er

гог.

When plaintiff's shoe was caught by a place in the floor of a street car and not by the step, excluding photographs offered solely to show condition of the step at time of the accident was not error.

5. Evidence 359(3) Photographs inadmissible in absence of proof of identity of conditions at time of accident and at time when they were taken.

In personal injury action where defendant failed to establish identity of condition at the time accident occurred and when photographs were made several weeks thereafter, excluding photographs was justified. 6. Evidence

244 (15)-Witnesses 379(1) -Conductor's admissions not admissible as original evidence, but admissible to impeach him.

Admissions or declarations of street car conductor after accident, and not part of res gestæ, were inadmissible as independent evidence, but, being contradictory of his evidence as witness, were admissible after predicate was laid to impeach or contradict him.

ant in and about the carriage of plaintiff as a passenger on one of its street cars, resulting in personal injury to plaintiff.

It appears from the evidence that plaintiff was a passenger on one of the street cars of the defendant; that when she started down the steps, her heel caught on a “defective part of the iron on the car," and she was thrown to a sitting position on the edge of the car.

conductor in charge of the car at the time of On cross-examination by plaintiff of the the accident, this witness testified that when Mrs. Dabner, a passenger, left the car, he and she did not examine the metal in the floor of the car; that he did not talk to her; and that he did not tell her the "thing would cause anybody to fall" and he was going to have it fixed right away.

Mrs. Dabner, being called by the plaintiff, was asked whether she and the conductor examined the floor of the car and the "jagged place of metal," and was asked what the conductor said to her when they made the examination. Counsel for defendant objected, counsel for plaintiff stated the testimony was offered for the purpose of impeachment. only, the court overruled the objection, defendant excepted, and the witness answered: "We got down on the ground together and examined it, and * he said, 'No wonder.' He said, 'It would trip anybody,' and says, 'I will have it attended to."

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Defendant's motion to exclude this answer was overruled.

Tillman, Bradley & Baldwin, A. Key Foster, and T. A. McFarland, all of Birmingham, for appellants.

Black, Harris & Foster, of Birmingham, for appellee.

ANDERSON, C. J. [1, 2] The husband of the plaintiff was asked while a witness:

"What has been her nervous condition since the injury? A. She has been very nervous. You might call her a nervous wreck from it."

Counsel for the defendant moved to exclude "the nervous wreck part." The court overruled the "objection" and noted an exception, though the record does not disclose an exception by counsel. While the court ruled on an "objection" which was not made instead of a "motion" which was made and noted an exception, which the record does not affirmatively show was made by counsel, we may concede that the ruling had reference to the motion to exclude and that . Action for damages by Edith Lewis there was an exception to the ruling. The against Lee C. Bradley and J. S. Pevear, co-motion to exclude went only to "the nervous receivers of the Birmingham Tidewater wreck part" of the reply, not to the first or Railway Company. Judgment for plaintiff, last portion of the answer. It was, of and defendants appeal. Affirmed. course, error for the witness to have added

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

(100 So.)

the words "from it," as that invaded the prov-defendants' counsel preferred offering them ince of the jury as to the issue in the case; for a limited or restrictive purpose.. Morebut the motion to exclude stated only "the over, we think the exclusion of the photonervous wreck part," and did not point out graphs can be justified because of the failthis part of the answer, which the trial ure of the defendant to establish an identity court would no doubt have excluded, as the of conditions at the time the accident ocrecord recites that the trial judge did not curred and when the photograph was made hear the words "from it" and which were several weeks afterwards. not mentioned or included in the motion to [6] The admissions or declarations of the exclude. This, therefore, brings us to the conductor after the accident, and not a part determination of whether or not it was error of the res gestæ, were, of course, not adfor not excluding "you might call her a missible as original or independent evinervous wreck." Witness had just stated dence; but, being contradictory of the evi"she was very nervous," and we think that dence given by him as a witness, were adthe further statement that she might be call-missible after a predicate had been laid for ed a nervous wreck was, in effect, a restate- the purpose of impeachment or contradiction. ment or emphasis of the first statement and was not a forbidden opinion or conclusion. In fact, to speak of persons who are extremely nervous as a "nervous wreck" is of ordinary or common parlance, indicative of a highly nervous or excitable condition, and we do not think that the trial court erred in failing to sustain the motion to exclude in the form in which it was made.

[3] The trial court cannot be put in error for excluding the report of the car inspectors of June 15th as to the condition of the step. It may be questionable as to whether conditions were so identical when the inspection was made and when the injury occurred as to make the result of said inspection competent evidence, or whether or not the report had been so identified and verified by witness Pitts as to make it an admissible memorandum in connection with his testimony; but we prefer to justify the action of the court upon a broader and more meritorious ground. The plaintiff's evidence shows that she lost her shoe heel and fell before descending to the step; that the shoe heel got caught by a “jagged or snagged" place in the floor of the car, and not the step or steps. In other words, the only defect shown was in the floor of the car and not the step. Indeed, the plaintiff testified that she did not see anything wrong with the step, and Mrs. Dabner testified that the shoe heel was caught under a jagged piece of metal on the floor of the car. Therefore the condition of the step when the inspection

was made a week later was not relevant.

[4, 5] For the same reason, the trial court did not err in excluding the photographs when offered solely to show the condition of the steps at the time of the accident. Nor was there error in excluding them when offered for the purpose of showing both the condition of the step and the "immediate floor where it is claimed the accident occurred." It being irrevelant as to the step this should have been disconnected from the other, especially in view of the fact that the court offered to admit the photographs to show the general construction of the car and

We cannot put the trial court in error for refusing the motion for a new trial under the long recognized and often followed rule laid down in the case of Cobb v. Malone, 92 Ala. 630, 9 South, 738.

The judgment of the circuit court is affirmed.

Affirmed.

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1. Parent and child 2(3)-Right of parents to custody of infant children based on interests of children and good of public.

The law devolves the custody and care of infant children upon their parents, not so much on the ground of natural right, but because the public will generally be promoted thereby. interests of the children and the good of the

2. Parent and child 2 (3)-Parents who left child on doorstep of strange household held not entitled to custody thereof as against persons who had taken and cared for child.

Parents who left child born between four and five months after marriage on doorstep of strange household, and who did not claim child until parenthood had been discovered, though they knew or could have ascertained where child had been placed, held not entitled to its custody, under Acts Sp. Sess. 1920, p. 90, as against husband and wife who had taken and cared for the child and were in position to give it a good home.

Gardner, J., dissenting.

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Petition of the Children's Aid Society, and cross-petition by C. S. Davis and wife, for custody of a child. Decree for cross-petitioners, and the petitioner appeals. Affirmed.

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

W. T. Seibels and W. A. Jordan, both of Montgomery, and Tate & Reneau, of Wetumpka, for appellant.

tion as to the interest of society and the welfare of the child. The law, for reasons founded in the nature of the relation, de

Hill, Hill, Whiting & Thomas, of Montgom- volves the custody and care of infant children ery, for appellees.

SAYRE, J. This is a controversy concerning the custody of a male child now something more than one year of age. This child, when about two months old, was left by its father on the doorstep of a stranger household in the city of Montgomery.

Through the kind offices of a physician, and with the approval of an agent of the Aid Society, the child was placed in the custody of appellees, who were told that the Aid Society would control its future placement, but at the same time were confidently, but not officially, assured that they would be allowed to keep the child. At that time and for some time subsequent the parentage of the child was unknown. In May-and, it seems, after investigation had discovered the parents-the Aid Society petitioned the juvenile court praying that the child be declared a ward of the state, and dealt with accordingly. Appellees filed their cross-petition, praying that the care and custody of the child be left with them. June 27th, the juvenile court did decree the child to be a ward of the state, and ordered that it be committed to the custody and care of the Children's Aid Society until the further order of the court. Appellees took an appeal to the circuit court, where, August 4, 1923, after hearing the evidence, the court was of opinion that it was for the best interests of society and of the child that he be committed to the custody and control of cross-petitioners, C. S. and Laura G. Davis, and it was accordingly so ordered. The Children's Aid Society appeals.

upon their parents, "not so much upon the ground of natural right in the latter, as because the interests of the children, and the good of the public, will, as a general rule, be thereby promoted." To pursue the quotation from Striplin v. Ware, supra:

"So strong is the presumption, that 'the care which is prompted by the parental instinct, and responded to by filial affection, is most valuable of all,' * * * that the parental authority will not be interfered with, except in case of gross misconduct, or where, from some other cause, it plainly appears that the interests of the child require it to be set aside."

* **

It is in pursuance of these general principles that the statute (Acts Special Session 1920, p. 90) commands the court "to render such judgment as to it shall seem just, and to be for the best interest of society and for the welfare of such child"-such interest and welfare, according to our conception. being one and the same thing. Necessarily the judgment to be rendered must rest in inference, to be drawn from the facts in evidence, and we proceed to a statement, as brief as may be, of the salient facts of the case.

The parents, a young couple, live with the wife's father in the neighborhood of Tallassee. The father of this child for some months before the trial in the circuit court earned good wages as a carpenter, but his accumulated possessions amounted to his wearing apparel and a Ford car not paid for in full. Appellees, on the other hand, are wellto-do people living in the city of Montgomery. But, let it be understood, this difference in the circumstances of the parties, while it may signify much in the future life of the child, is by no means conclusive of the question here at issue, for, if these parents are to

[1] The evidence abundantly and beyond peradventure sustains the conclusion that this child is now fortunately placed, that it has found a deep place in the affections of its foster parents, and that no public institution could afford the same measure of prudent, capable, and affectionate care. The be deprived of the custody of their child, only debatable question is whether the child had better be committed to its natural parents, for it appears to have been admitted at the hearing that, in the event of a decree in favor of the Aid Society, the child would be placed with its parents. As expressed by the supervising agent of the society at the hearing, its purpose is to "try the child out with its parents." There are, it must be conceded, no sure grounds of decision, and so much of human interest is involved that the making of a decree is a matter of extreme delicacy, and of no inconsiderable embarrassment and responsibility. Striplin v. Ware, 36 Ala. 87. The statute does not contemplate that the humanity of the relation between parent and child should be disregarded, for

it must be for some weightier reason than that just suggested. We think such reason is to be found in the story of this child's birth and its life up to date. When it was discovered by the mother's family that she was gravid with this child, the prospective father and mother-to whom for convenience we may refer as appellants-went to Tuskegee, in company with the mother and brother of this mother, where appellants intermarried according to law. Then, evidently to conceal their folly, they went to Georgia, where this child was born between four and five months later. Two months afterwards, while in Montgomery, on their way back to Tallassee, this child was disposed of as we stated in the outset. Thereby appellants sinned away

(100 So.)

in their community, and to conceal it they added greatly to their sin; but much has been excused and condoned because of what more mature minds term the "folly of youth." All of the facts considered, I am not convinced these parents have forfeited their rights to their child, and therefore respectfully dissent.

(6 Div. 168.)

(Supreme Court of Alabama. May 15, 1924.) Counties 107-Board of revenue had ap thority to lease courthouse and jail no longer used for county purposes.

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Under Code 1907, § 130, giving court of county commissioners control of county property, the board of revenue of a county had authority to lease courthouse and jail no longer used for county purposes until such time as they deemed conditions such as to warrant ad

[2] Appellants have their excuses, but they only make the matter worse. It is clear that their main purpose was to hide the evidence of their indiscretion, and it may be conceded that otherwise they would have kept and cared for the child. That choice needs no comment. The mother deposed that she did not consent to the disposition made of the child; but, evidently, her dissent was feebly expressed, for otherwise she would have clung to the child. The father deposed that he intended to leave the child with a friend, but he dis- JACKSON v. BALL et al., Board of Revenue. covered his mistake when he saw a stranger take the child in, and did nothing. Next day these parents knew the child was at an infirmary, but said nothing. They testify that they were unable to trace the child further; but they confess that they did not inquire at the Welfare Department, although they knew an agent of that department had had something to do with the child's disposal, nor did they ever exhibit the least interest in this child until late in March, when they were made aware of the fact that their parent-vantageous sale. age had been discovered-that they would be exposed, and in some way held to account Appeal from Circuit Court, Jefferson Counfor what they had done. Considering the ty; William M. Walker, Judge. whole evidence, our opinion is that all the while they knew where the child was, and were entirely willing that it remain there, thus, without too great a strain upon conscience, relieving themselves of the burden of its care and the cold shoulder of their acquaintances. Our judgment is that the purpose of the statute will be served best by a decree leaving the present status of the child undisturbed for a time at least. In reaching this conclusion we lean in a measure upon the ruling of the trial judge, for, in addition to the facts as we have briefly stated them, he heard and saw all these people, and therein had an advantage which must be of pe

culiar value in a case like this.

Affirmed.

All the Justices concur, except

Bill for injunction by Fred M. Jackson against D. C. Ball and others, as members of the Board of Revenue of Jefferson County. From the decree, complainant appeals. Affirmed.

Robert G. Tate, of Birmingham, for appellant.

Matthews & Morrow, of Birmingham, for appellees.

ANDERSON, C. J. The bill and answer show that the board of revenue contemplat

ed the abandonment of the present courttended to mortgage or lease the old or abanhouse and jail of Jefferson county and indoned buildings. The appellant, Jackson, filed a bill to enjoin leasing or mortgaging said property, and the trial court ruled that the board of revenue had no legal authority GARDNER, J. (dissenting). This case is in to mortgage said property, but was authorreality a contest between the natural parents ized to lease the same. The board of reveof the child and a stranger for its custody, nue is not complaining of the ruling as to and is so considered and treated by the court. the right to mortgage, and this appellant is The ruling of the majority rests upon the only complaining of the decree in so far as theory that these parents had in fact aban-it held that said board had the right to doned the child and "sinned away their lease said property after the use of same rights" to its care and custody. The parents as a courthouse and jail had ceased. Secinsist what they did was meant as a tem- tion 130 of the Code of 1907 gives the court porary expedient to hide their shame, and of county commissioners control of the counit was their purpose to afterward repossess ty property, and also authorizes them to disthemselves of their child. The mother tes-pose of same under the conditions there pretified that what was done by the husband scribed. It may be conceded that the diswas over her protest. I am persuaded the youth of this couple should be considered in weighing their conduct. The mother was but 17, and the father 21. It is clear they were very anxious that the early birth after marriage. of this child should not be known

posal of same means a complete and absolute disposition such as a sale, and does not carry with it the right to mortgage or lease. We think, however, and so hold, that the general control is broad enough to cover the right to rent or lease the same, within the

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