(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 Refused charges 15, 16, and 17, in so far commonly and frequently used as a prophecy as they invoked the principles of self-defense, or a threat of punishment, and it was for the were fully, fairly, and correctly covered by jury to say what defendant meant by its use the oral charge. on this occasion, in the light of the evidence [13] Refused charge 18, on the mode of before them. We think the statement was considering dying declarations, was an arguproperly admitted.

ment based on selected and partial facts, Complaint is made of other rulings on the properly to be made by counsel, and not by evidence. We have examined all of them, the trial judge. and find no prejudicial error.

(14, 15] Refused charge 19, that "the law [6] Refused charge 3 sought to exclude a requires dying declarations to be considered conviction of murder without excluding the with great caution,” is not a proper instrucexistence of malice, and was also argumen- tion, as was expressly held in Brown v. tative.

State, 150 Ala. 25, 43 South. 194. The same [7] Refused charges 5 and 12 correctly ruling has been made as to the consideration distinguished between murder and man- of admissions by a defendant. Carwile v. slaughter in the first degree, but they were State, 148 Ala. 576 (B), 39 South. 220. This specifically covered by given charge 5, and does not deny the existence of the factors also by the oral charge.

which weaken the reliability of dying decRefused charge 6 was fully covered by the larations, and impair their value as evidence, oral instructions.

and which have been often pointed out by [8, 9] Refused charges 8, 9, and 11, are courts and text-writers. See, especially, based on the theory that deceased made a Shell v. State, 88 Ala. 14, 17, 7 South. 40; 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, defend- It is to be observed, however, that the prinant could have required its production by a ciple invoked was in fact given to the jury rule of the court if he thought it was favor- in charge 20, viz. "that dying declarations able to him.

are admitted in evidence out of necessity, [10] Refused charge 10 was purely argu. but should be admitted and considered with mentative.

real caution in connection with all the eviRefused charge 14 was faulty in several

dence." details, but its entire substance and principle

For the reasons stated, all of the charges were fully and fairly covered by the oral

above reviewed were refused without error. charge.

We find no prejudicial error in the record, (11) Refused charge 15, on the law of selfdefense, omits the predicate of a necessity, and the judgment will be affirmed.

Affirmed. apparent or real, for the killing, and assumes the existence of peril.

[12] Refused charge 16, on self-defense, in- ANDERSON, C. J., and THOMAS and structs that the matter “is entirely with the MILLER, JI., concur.

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

ant in and about the carriage of plaintiff (Supreme Court of Alabama. May 15, 1924.)

as a passenger on one of its street cars, re

sulting in personal injury to plaintiff. 1. Evidence 471 (13)-Witness' statement

It appears from the evidence that plaintiff that wife was nervous wreck held not opino was a passenger on one of the street cars ion.

of the defendant; that when she started In personal injury action, husband's statement as to wife's condition, that you might down the steps, her heel caught on a “defec. call her a nervous wreck,” held not to be for- tive part of the iron on the car,” and she bidden opinion or conclusion, but restatement was thrown to a sitting position on the edge that she had been very nervous.

of the car.

On cross-examination by plaintiff of the 2. Trial @95—Motion to exclude testimony conductor in charge of the car at the time !

that wife was nervous wreck held not error,
though additional part of answer was im- the accident, this witness testified that when
proper.

Mrs. Dabner, a passenger, left the car, he
In personal injury action where husband, and she did not examine the metal in the
testifying as to wife's condition since injury, floor of the car; that he did not talk to her;
stated that "you might call her a nervous and that he did not tell her the “thing would
wreck from it," notwithstanding added words cause anybody to fall" and he was going to
“from it” invaded jury's province as to issue, have it fixed right away.
where motion to exclude included only "the

Mrs. Dabner, being called by the plaintiff, nervous wreck" part, there was no error in

was asked whether she and the conductor failing to sustain it.

examined the floor of the car and the "jagged 3. Carriers 317(5)-Excluding irrelevant place of metal,” and was asked what the

report of car inspectors as to condition of conductor said to her when they made the car step not error.

examination. Counsel for defendant objectWhere injury was alleged to have been ied, counsel for plaintiff stated the testimony caused by defect in floor of street car and not was offered for the purpose of impeachment in the step, excluding report of car inspectors only, the court overruled the objection, de made a week after injury was not error.

fendant excepted, and the witness answered: 4. Evidence Cw359(1)-Excluding irrelevant

"We got down on the ground together and photographs of condition of car step not er

examined it, and

he said, 'No wonder.' ror.

He said, 'It would trip anybody,' and says, 'I When plaintiff's shoe was caught by a place will have it attended to.'" in the floor of a street car and not by the step, excluding photographs offered solely to show Defendant's motion to exclude this answer condition of the step at time of the accident was overruled. was not error.

Tillman, Bradley & Baldwin, A. Key Fos5. Evidence ww359(3) - Photographs inad- ter, and T. A. McFarland, all of Birming

missible in absence of proof of identity of ham, for appellants. conditions at time of accident and at time

Black, Harris & Foster, of Birmingham, when they were taken.

for appellee. In personal injury action where defendant failed to establish identity of condition at the

ANDERSON, C. J. [1, 2] The husband of time accident occurred and when photographs were made several weeks thereafter, excluding the plaintiff was asked while a witness: photographs was justified.

“What has been her nervous condition since

the injury? A. She has been very nervous. 6. Evidence C244(15)-Witnesses 379(1) You might call her a nervous wreck from it.” -Conductor's admissions not admissible as original evidence, but admissible to impeach Counsel for the defendant moved to exhim.

clude “the nervous wreck part.” The court Admissions or declarations of street car overruled the “objection” and noted an exconductor after accident, and not part of res ception, though the record does not disclose gestæ, were inadmissible as independent evidence, but, being contradictory of his evidence ruled on an "objection" which was not made

an exception by counsel. While the court
as witness, were admissible after predicate was
laid to impeach or contradict him.

instead of a “motion" which was made and
noted an exception, which the record does

not affirmatively show was made by counAppeal from Circuit Court, Jefferson

sel, we may concede that the ruling had County; Romaine Boyd, Judge.

reference to the motion to exclude and that Action for damages hy Edith Lewis' there wa an exception to the ruling. The against Lee C. Bradley and J. S. Perear, 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, and defendants appeal. Affirmed.

i course, error for the witness to have added

of

(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 fail. this 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 gesta, 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 We cannot put the trial court in error for was not a forbidden opinion or conclusion. refusing the motion for a new trial under In fact, to speak of persons who are extreme- the long recognized and often followed rule ly nervous as a "nervous wreck” is of or- laid down in the case of Cobb v. Malone, 92 dinary or common parlance, indicative of a Ala, 630, 9 South. 738. highly nervous or excitable condition, and The judgment of the circuit court is afwe do not think that the trial court erred in firmed. failing to sustain the motion to exclude in Affirmed. the form in which it was made.

[3] The trial court cannot be put in error SOMERVILLE, GARDNER, and THOMfor excluding the report of the car inspec- AS, JJ., concur. tors 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 inspec

CHILDREN'S AID SOC. V. DAVIS et ux. tion competent evidence, or whether or not

(3 Div. 638.) the report had been so identified and verified (Supreme Court of Alabama. Jan. 31, 1924. by witness Pitts as to make it an admissible

Rehearing Denied May 29, 1924.) memorandum in connection with his testimony; but we prefer to justify the action of 1. Parent and child m2(3)-Right of parents the court upon a broader and more meritori- to custody of infant children based on inous ground. The plaintiff's evidence shows

terests of children and good of public. that she lost her shoe heel and fell before The law devolves the custody and care of indescending to the step; that the shoe heel fant children upon their parents, not so much got caught by a “jagged or snagged" place on the ground of natural right, but because the in the floor of the car, and not the step or public will generally be promoted thereby.

interests of the children and the good of the steps. In other words, the only defect shown was in the floor of the car and not 2. Parent and child m2(3)-Parents who left the step. Indeed, the plaintiff testified that child on doorstep of strange household held she did not see anything wrong with the not entitled to custody thereof as against perstep, and Mrs. Dabner testified that the shoe

sons who had taken and cared for child. heel was caught under a jagged piece of Parents who left child born between four metal on the floor of the car. Therefore the and five months after marriage on doorstep of condition of the step when the inspection strange household, and who did not claim child

until parenthood had been discovered, though was made a week later was not relevant.

they knew or could have ascertained where [4, 5] For the same reason, the trial court child had been placed, held not entitled to its did not err in excluding the photographs custody, under Acts Sp. Sess. 1920, p. 90, as when offered solely to show the condition of against husband and wife who had taken and the steps at the time of the accident. Nor cared for the child and were in position to give was there error in excluding them when of it a good home. fered for the purpose of showing both the

Gardner, J., dissenting. condition of the step and the “immediate floor where it is claimed the accident oc

Appeal from Circuit Court, Montgomery curred.” It being irrevelant as to the step County; Leon McCord, Judge. this should have been disconnected from the Petition of the Children's Aid Society, and other, especially in view of the fact that the cross-petition by O. S. Davis and wife, for court offered to admit the photographs to custody of a child. Decree for cross-petishow the general construction of the car and tioners, and the petitioner appeals. Afirmed.

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事

W. T. Seibels and W. A. Jordan, both of tion as to the interest of society and the welMontgomery, and Tate & Reneau, of Wetump- fare of the child. The law, for reasons ka, for appellant.

founded in the nature of the relation, deHill, Hill, Whiting & Thomas, of Montgom- volves the custody and care of infant children ery, for appellees.

upon their parents, “not so much upon the

ground of natural right in the latter, as beSAYRE, J. This is a controversy concern- cause the interests of the children, and the ing the custody of a male child now some good of the public, will, as a general rule, be thing more than one year of age. This thereby promoted." To pursue the quotation child, when about two months old, was left from Striplin v. Ware, supra: by its father on the doorstep of a stranger household in the city of Montgomery.

"So strong is the presumption, that 'the care Through the kind offices of a physician, and which is prompted by the parental instinct, and with the approval of an agent of the Aid responded to by filial affection, is most valua

ble of all.'

that the parental auSociety, the child was placed in the custody thority will not be interfered with, except in of appellees, who were told that the Aid Soci- case of gross misconduct, or where, from some ety would control its future placement, but at other cause,

it plainly appears that the same time were confidently, but not of the interests of the child require it to be set

aside." ficially, assured that they would be allowed to keep the child. At that time and for some time subsequent the parentage of the child It is in pursuance of these general prinwas unknown. In May-and, it seems, after ciples that the statute (Acts Special Session investigation had discovered the parents—the 1920, p. 90) commands the court “to render Aid Society petitioned the juvenile court pray- such judgment as to it shall seem just, and ing that the child be declared a ward of the to be for the best interest of society and state, and dealt with accordingly. Appellees for the welfare of such child"-such interest filed their cross-petition, praying that the and welfare, according to our conception, care and custody of the child be left with being one and the same thing. Necessarily them. . June 27th, the juvenile court did de- the judgment to be rendered must rest in incree the child to be a ward of the state, and ference, to be drawn from the facts in eviordered that it be committed to the custody dence, and we proceed to a statement, as and care of the Children's Aid Society until brief as may be, of the salient facts of the the further order of the court. Appellees case. took an appeal to the circuit court, where, The parents, a young couple, live with the August 4, 1923, after hearing the evidence, wife's father in the neighborhood of Tallasthe court was of opinion that it was for the The father of this child for some best interests of society and of the child that months before the trial in the circuit court he be committed to the custody and control of earned good wages as a carpenter, but his accross-petitioners, C. S. and Laura G. Davis, cumulated possessions amounted to bis wearand it was accordingly so ordered. The Chil- ing apparel and a Ford car not paid for in dren's Aid Society appeals.

full. Appellees, on the other hand, are well. [1] The evidence abundantly and beyond to-do people living in the city of Montgomery. peradventure sustains the conclusion that But, let it be understood, this difference in this child is now fortunately placed, that the circumstances of the parties, while it may it has found a deep place in the affections of signify much in the future life of the child, its foster parents, and that no public insti- is by no means conclusive of the question tution could afford the same measure of pru- here at issue, for, if these parents are to dent, capable, and affectionate care. The be deprived of the custody of their child, only debatable question is whether the child it must be for some weightier reason than had better be committed to its natural par- that just suggested. We think such reason ents, for it appears to have been admitted is to be found in the story of this child's at the hearing that, in the event of a decree birth and its life up to date. When it was in favor of the Aid Society, the child would discovered by the mother's family that she be placed with its parents. As expressed by was gravid with this child, the prospective the supervising agent of the society at the father and mother-to whom for convenience hearing, its purpose is to "try the child out we may refer as appellants—went to Tuske. with its parents." There are, it must be con- gee, in company with the mother and brother ceded, no sure grounds of decision, and so of this mother, where appellants intermarried much of human interest is involved that the according to law. Then, evidently to conceal making of a decree is a matter of extreme their folly, they went to Georgia, where this delicacy, and of no inconsiderable embarrass- child was born between four and five months ment and responsibility. Striplin v. Ware, later. Two months afterwards, while in 36 Ala. 87. The statute does not contemplate Montgomery, on their way back to Tallassee, that the humanity of the relation between this child was disposed of as we stated in parent and child should be disregarded, for the outset. Thereby appellants sinned away

see.

1

(100 So.) [2] Appellants have their excuses, but they in their community, and to conceal it they only make the matter worse. It is clear that added greatly to their sin; but much has their main purpose was to hide the evidence been excused and condoned because of what of their indiscretion, and it may be conceded more mature minds term the "folly of youth.” that otherwise they would have kept and car- All of the facts considered, I am not convinced for the child. That choice needs no com- ed these parents have forfeited their rights to ment. The mother deposed that she did not their child, and therefore respectfully disconsent to the disposition made of the child; sent. 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

(6 Div. 168.) take the child in, and did nothing. Next (Supreme Court of Alabama. May 15, 1924.) day these parents knew the child was at an infirmary, but said nothing. They testify Counties Cm 107-Board of revenue had authat they were unable to trace the child fur- thority to lease courthouse and jail no longther; but they confess that they did not er used for county purposes. inquire at the Welfare Department, although Under Code 1907, $ 130, giving court of they knew an agent of that department had county commissioners control of county prophad something to do with the child's disposal, erty, the board of revenue of a county had au

thority to lease courthouse and jail no longer nor did they ever exhibit the least interest used for county purposes until such time as in this child until late in March, when they they deemed conditions such as to warrant adwere 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

Bill for injunction by Fred M. Jackson while they knew where the child was, and against D. C. Ball and others, as members were entirely willing that it remain there, of the Board of Revenue of Jefferson County. thus, without too great a strain upon con- From the decree, complainant appeals. Afscience, relieving themselves of the burden of firmed. its care and the cold shoulder of their ac

Robert G. Tate, of Birmingham, for appel. quaintances. Our judgment is that the pur

lant. pose of the statute will be served best by a

Matthews & Morrow, of Birmingham, for decree leaving the present status of the child

appellees. undisturbed for a time at least. In reaching this conclusion we lean in a measure upon

ANDERSON, C. J. The bill and answer the ruling of the trial judge, for, in addition to the facts as we have briefly stated them, show that the board of revenue contemplathe heard and saw all these people, and there ed the abandonment of the present courtin had an advantage which must be of pe- tended to mortgage or lease the old or aban

house and jail of Jefferson county and inculiar value in a case like this.

doned buildings. The appellant, Jackson, Affirmed.

filed a bill to enjoin leasing or mortgaging All the Justices concur, except

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 author. reality 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 posal of same means a complete and absolute youth of this couple should be considered osition such as a sale, and does not in weighing their conduct. The mother was carry with it the right to mortgage or lease. but 17, and the father 21. It is clear they We think, however, and so hold, that the were very anxious that the early birth after general control is broad enough to cover the marriage. of this child should not be known right to rent or lease the same, within the

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