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(100 So.) pelling payment by the surety of the laborers, of labor and material did not give rise to a and materialmen under the provisions of cause of action in favor of the surety against the bond executed in their favor, the surety the owner. The respective obligations oť will not be permitted to escape liability up- the owner and surety were fixed by the on the ground that there has been a sub- bond itself. The provisions of the bond afstantial change in the contract as between fecting the laborers and materialmen were the owner and the contractor. The obliga- independent of the stipulations affecting the tion of the surety to the laborers and mate-owner. The surety's engagement to the rialmen is statutory, and is as distinct from owner was to secure the faithful performthe conventional obligation to the owner for ance of the contract by the contractor. This the faithful performance of the building con- obligation was in favor of the owner and tract as if contained in a separate agree- against the surety and not in favor of the ment. Victoria. Lbr. Co. v. Wells, 139 La. surety and against the owner. 503, 71 South. 781, L. R. A. 1916E, 1110, In a case involving the identical issue, Ann, Cas. 1917E, 1083; U. S. F. & G. Co. this court has said: 5. D'Angelo, 150 La. 188, 90 South. 564;

"The suretyship contract was a contract in Shreveport Bldg. Ass'n v. Whittington (on favor of the owner. Hence the violation of it rebearing) 141 La. 47, 74 South. 591.

by this owner could not give rise to a cause of Plaintiff, therefore, is merely a nominal action against the owner. The building contract party to the suit, and the mass of testimony was one between the owner and the contractor. in the record, admitted over plaintiff's objec- The violation of it could not give rise to a tion, adduced for the purpose of showing the cause of action in favor of the surety. The alleged changes and alterations in the orig- debts to the materialmen are due by the coninal contract, is without effect upon the rise to a cause of action against the owner,

tractor. The payment of them could not give claims of the lienors, the real parties in who does not owe them.” United States Fi. interest.

delity & Guaranty Company v. D'Angelo, 150 Defendants advance the further contention La. 188, 90 South. 564. that the lienors cannot recover for the reason that they have not established that their

See, also, Victoria Lbr. Co. v. Wells, 139 labor and materials were used in or on the La. 503, 71 South. 781, L. R. A. 1916E, 1110, work. Neither in argument nor in brief sub- Ann. Cas. 1917E, 1083. mitted on behalf of defendants has it been

The lienors, by supplemental answers, shown which of the lienors have failed in prayed for judgment for 10 per cent. of the this respect. The particular items have not amounts of their respective claims, as atbeen pointed out, nor the details given. The torney's fees. This demand was made by court below allowed the claims in full. Such virtue of the provisions of Act 225 of 1918. examination as we have been able to make

The surety company, under the terms of of this voluminous record has not disclosed its indemnity contract, likewise claimed at. any error in the court's award.

torney's fees from its indemnitors in a sum [2] The defense offered by the indemnitors to be fixed by the court. to the claim of the surety against them is

These claims for attorney's fees were reidentical with that urged by the surety jected by the court below. They are insisted against the demands made upon it. The ob- on in the briefs filed in this court on behalf ligations of the indemnitors to the surety

of the parties. are the same as the obligations of the surety

[4] Inasmuch as the appeals of the lienors to its indemnitees. Since the surety is liable were taken and perfected out of an abunon its bond, it follows that the indemnitors dance of caution against the judgment disare responsible under their contract of in- missing their claims against the owner, and

not from the judgment in their favor against [3] The surety and its indemnitors, by the surety company, and, inasmuch as the way of reconvention, prayed for judgment appeal of the surety company was taken against the plaintiff bank, as owner of the and perfected against the judgment rendered building, for the amount of such judgment or against it in favor of the lienors and not Judgments as might be rendered against from the judgment in its favor against its them. The court below, and we think cor- indemnitors, we are unable to consider and rectly, dismissed these demands.

act upon their demands for attorney's fees. Under the statute, the owner was relieved

Judgment affirmed.
of all liability to the laborers, and material-
men when it furnished the bond securing the

O'NIELL, C. J., concurs in the decree. payment of their claims. The judgment Rehearing refused by Division B, composed against the surety in favor of the furnishers of DAWKINS, LAND, and LECHE, JJ.

demnity.

Pro

12

(156 La.)

The act under which defendant was conNo. 26397.

victed authorizes the imposition of a fine not

exceeding $500, or incarceration in the parish STATE V. SHARP.

jail for a period not exceeding 60 days, or

both, in the discretion of the court, for the (Supreme Court of Louisiana. May 5, 1924.) first offense of unlawfully transporting in

toxicating liquor for beverage purposes; this (Syllabus by Editorial Staff.)

being, as we have said, the offense for which Fines moll-Sentence imposing fine and im- the sentence was imposed. Section 3 of Act

prisonment and additional imprisonment for 39 of Extra Session of 1921. failure to pay ine held authorized.

As the trial judge has imposed in this Under Act No. 39 of Extra Sess. 1921, case all of the fine and all of the imprison$ 3, authorizing fine of $500 and imprisonment ment authorized by the statute as the pun. for 60 days, or both, for offense of unlawfully ishment for the offense for which the de transporting intoxicating liquor, and Rev. St., fendant was convicted, it is obvious that, if $ 980, authorizing imprisonment for one year for default in payment of a fine, defendant defendant should default in the payment of convicted of unlawfully transporting intoxicat- the fine, or if the fine should not be recover. ing liquor held properly sentenced to 60 days' ed oụt of his estate, then its imposition imprisonment, and fine of $500, and in de would amount to nothing. The law does not fault of payment of fine to one year's addition contemplate, however, that the imposition of al imprisonment.

a fine may be ignored by the one against

whom it is imposed. Therefore it has proAppeal from Twenty-Fifth Judicial Dis- vided thattrict Court, Parish of Tangipahoa; Robert

"Every person being adjudged to pay a fine, S. Ellis, Judge.

shall, in default of payment or recovery thereLevi Sharp was convicted of unlawfully of, be sentenced to be imprisoned for a period transporting intoxicating liquor, and he ap

not exceeding one year.” Revised Statutes, $

980. peals. Affirmed.

Ponder & Ponder, of Amite, for appellant. The purpose of this section is to provide

A. V. Coco, Atty. Gen., and M. J. Allen, a means for the enforcement of payment of Dist. Atty., of Amite (T. S. Walmsley, of New a fine, in a case where the statute authorizOrleans, and A. J. Bordelon, of Marksville, of ing its imposition does not provide such counsel), for the State.

means. As was said in State v. Jumel, 13 La. By Division C, composed of OVERTON, to punish the one convicted for the offense

Ann. 399, the purpose of the section is not ST. PAUL, and THOMPSON, JJ.

for which he was convicted, but to compel

him to execute the sentence of the court by OVERTON, J. Defendant was indicted for paying the fine. unlawfully transporting intoxicating liq- Since, in the case at bar, the trial judge uors for beverage purposes, was tried, found imposed a fine, as authorized by the statute guilty, and sentenced to 60 days in jail; to under which defendant was convicted, and pay a fine of $300, and, in default of paying as that statute does not provide the means the fine, to one year additional in the parish for enforcing payment of the fine, the judge jail.

had a right to resort to section 980 of the Defendant complains in this court that Act Revised Statutes to obtain such means, and 39, Extra Session of 1921—the act under therefore to pronounce the sentence imposed which he was convicted-does not authorize of one year additional imprisonment in dethe sentence imposed. His position is that fault of the payment of the fine. State v. the act does not sanction the imposition of Payne, 134 La. 269, 63 South. 899; State v. a jail sentence exceeding 60 days for the of- Doras Hebert (No. 26165) 101 South. fense for which he has been convicted, when yet officially reported. the conviction is, as is the case here, for the For the reasons assigned, the sentence ap first transgression of the statute.

pealed from is affirmed.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexeg

not

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V.

(100 So.

objection to defendant's question, undertak. ROCK V. STATE. (6 Div. 224.) ing to prove that fact.

We find no error in the record, and the (Court of Appeals of Alabama. June 3, 1924.)

judgment is affirmed.
1. Criminal law Om 1160–Denial of motion for Affirmed.
new trial not reversed in absence of bias.

In absence of bias on part of county or cir-
cuit court, in both of which defendant was con-
victed, appellate court cannot reverse circuit

MYRICK V. STATE, (8 Div. 131.) judge's denial of defendant's motion for new trial.

(Court of Appeals of Alabama. June 3, 1924.) 2. Criminal law m807(1)-Charge held properly refused as merely argumentative.

1. Indictment and information en 110(31) Charge that it is not enforcement of law to

Indictment in statutory language for manyconvict only, but it is to find a true and cor

facturing prohibited liquors and possessing rect verdict from testimony and law as given by

still sufficient. court, held properly refused as merely argu

Indictment, in language of statute, for mentative,

manufacturing prohibited liquors and possess

ing still is sufficient. 3. Intoxicating liquors Om235-Evidence of buyer's possession of other whisky than that 2, Indictment and Information om 130_Differ. purchased from defendant held properly ex ent offenses of same nature may be charged cluded.

in separate counts,

Two or more offenses of same nature and defendant had other whisky held properly ex- family of crime, having same mode of trial and cluded as immaterial and irrelevant.

nature of punishment, may be charged in sepa

rate counts. Appeal from. Circuit Court, Blount County ; 3. Indictment and information w129(1) – Woodson J. Martin, Judge.

Charges of distilling and possessing still may Bun Rock was convicted of violating the be joined in separate counts. prohibition law, and appeals. Affirmed.

Charges of distilling and possessing still Charge 8, refused to defendant, is as fol. may be joined in separate counts. lows:

4. Criminal law Om878(2)-General verdict of “(8) The court charges the jury that it is guilty as charged not error, if sentence is no not an enforcement of the law to convict only,

greater than punishment prescribed for one but it is to find a true and correct verdict from

offense. the testimony and the law as given to you by

General verdict of guilty as charged in inthe court."

dictment, charging manufacture of prohibited A. A. Griffith, of Cullman, and P. A. Nash, liquors and possession of still in separate

counts, will support conviction, and is not of Oneonta, for appellant.

ground for arrest of judgment or error, when Harwell G. Davis, Atty. Gen., and Lamar sentence imposes no greater punishment than Field, Asst. Atty. Gen., for the State.

is prescribed for one offense.

Mesidence that one purchasing whisky from

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SAMFORD, J. [1] The evidence is in con

Appeal from Circuit Court, Lauderdale fict. The case was first tried in the county County; Chas. P. Almon, Judge. court, and a judgment of guilt was there pronounced. On appeal the cause was submitted

Jim Myrick was convicted of violating

the to a jury under a fair and impartial charge prohibition law, and appeals. Affirmed. of the court and a verdict of guilt returned. Mitchell & Hughston, of Florence, for apOn motion for new trial the judge trying the pellant. case overruled the motion. There is nothing

Harwell G. Davis, Atty. Gen., for the in this record to convince us of a bias on the State. part of either tribunal passing upon this case, and under the law as it is we must hold

FOSTER, J. The first count in the indictthat this court would be unwarranted in re- ment charged the manufacture of prohibited versing the trial judge in his ruling denying liquors, and the second count charged the posthe motion for a new trial. Miller v. South- session of a still. There was a general verern Bell Telephone & Telegraph Co., 195 Ala. dict of guilty as charged in the indictment. 413, 70 South. 730.

There was ample evidence to support the [2] Charge 8, refused to defendant, is verdict of the jury. merely an argument and was properly re

The defendant filed a motion for a new

trial on the grounds: [3] The fact that Clyde Smith had posses “(1) That the verdict in said cause charges sion of other whisky than that bought by him two separate and distinct offenses, one of which from defendant would be immaterial and ir- charged that the defendant manufactured spir. relevant, and the court properly sustained ituous, alcoholic or malt liquors contrary to

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

fused.

In goo

law, and the other offense charged that the 2. Criminal law eww1158(1)-Court's conclusion defendant had in his possession a still or ap- on oral testimony In trial without jury not paratus for the purpose of manufacturing disturbed, unless plainly wrong. spirituous, alcoholic or malt liquors contrary Conclusion of court sitting without jury, to law, and the verdict in this cause found the if based on oral testimony, must be given force defendant guilty as charged in the indictment, and effect of jury's verdict on appeal, and canwhich verdict is vague, indefinite and uncer- not be disturbed unless plainly wrong. tain and insufficient to support a conviction under the indictment.

Appeal from Circuit Court, Etowah Coun(2) That said verdict is defective, for the ty; O. A. Steele, Judge. reason that it cannot be ascertained for what

Shelton Summers was convicted of assault offense the defendant was convicted.

"(3) That the verdict in this case is contrary and battery, and appeals. Affirmed. to the great weight of the evidence.

The statement of the trial judge recites: "(4) That the indictment in this case charges no offense known to the law, and in its pres

“[I] saw no place that the evidence offered ent form will not support a verdict of convic

on the trial indicated was the place where the tion."

assault and battery occurred.

ing from North Second street at Canterberry [1] The indictment followed the language Station to the mill I followed as best I could of the statute, and was sufficient. Johnson the route mapped out by the testimony offered V. State, 152 Ala. 46, 44 South. 670; Kim- abling myself to understand the testimony of

in this case. I did this for the purpose of enbell v. State, 165 Ala. 118, 51 South. 16; fered both by the state and the defense in this Jordan v. State, 5 Ala. App. 229, 59 South.

case.” 710; 8 Michie's Dig. p. 629, § 57.

[2] Two or more offenses may be charged Affidavits offered in support of the motion in separate counts of an indictment, if the for new trial, are made by the defendant offenses are of the same nature, belong to and his attorneys, and affirm that affiants the same family of crime, have the same were not invited to view the locus with the mode of trial and nature of punishment. trial judge, and had no notice of his purLowe v. State, 134 Ala. 154, 32 South. 273; pose to do so. Thomas v. State, 111 Ala. 51, 20 South. 617.

J. M. Miller and E. O, McCord & Son, all [3] The charges of distilling and possess of Gadsden, for appellant. ing a still may be joined in separate counts

Harwell G. Davis, Atty. Gen., and Lamar of an indictment. Casey v. State (Ala. App.) Field, Asst. Atty. Gen., for the State. 97 South. 165; Nichols v. State, 18 Ala. App. 184, 89 South. 847.

BRICKEN, P. J. The undisputed testi. [4] A general verdict of “guilty as charged mony in this case shows that on or about in the indictment," the indictment containing September 5, 1923, Charles Dumas, the party a count charging the manufacture of pro- alleged in the indictment to have been injurhibited liquors and a count charging the pos- ed, was working for the Gadsden Car Works session of a still, will support a conviction during a strike. That above 5:30 o'clock on under the indictment, and is no ground for the afternoon in question he (Dumas) was arrest of judgment or of error, when the forcibly jerked from a bus at Canterberry sentence pronounced does not impose a great station by several men and carried about a er punishment than is prescribed for one of- mile and a half to Black's creek, where he fense. Sampson v. State, 107 Ala. 76, 18 was severely beaten and bruised and thrown South. 207; Johnson v. State, 50 Ala. 456.

in the creek by these men, and was called a The motion for a new trial was properly - scab, etc. The defendant denied overruled.

all connection with the beating of Dumas, There is no error in the record. The judg- and testified that he was not present at the ment of the circuit court is affirmed.

time Dumas was injured, but was at another Affirmed.

and different place. The injured party identified this defendant as one of his assailants,

and there was other testimony of like import SUMMERS V. STATE. (7 Div. 952.) adduced by the state on this trial. In addi

tion to the defendant's own testimony he (Court of Appeals of Alabama. June 3, 1924.) offered other evidence corroborative of his

insistence that he was not present when the 1. Criminal law Ow918(1)-Overruling motion offense complained of was committed. for new trial because of trial judge's view

The offense complained of in the indictwithout notice to defendant held not error.

ment, that is, the corpus delicti, having been Overruling motion for new trial on ground that trial judge viewed locus in quo of alleged proven without conflict, the material quesassault without notice to defendant and his at- tion presented upon this trial was whether torneys held not error, especially where de- or not this defendant was one of the parfendant interposed alibi; his substantial rights ties who committed the offense. This quesnot being injuriously affected.

tion was decided adversely to the defendant For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(100 So.)
by the trial Judge who heard and determined , nocence which attended accused on the trial
this case without the intervention of a jury. prevailed.

No brief has been filed in behalf of appel- 3. Gaming Omw98(4)-Evidence held insufficient
lant; however, the whole evidence has had to support conviction for keeping gaming
our attentive consideration, and in our opin table,
ion the court properly convicted this defend Evidence held not to show beyond a rea-
ant, as the evidence was ample upon which sonable doubt that accused kept, exhibited, or
to predicate the judgment rendered.

was interested or concerned in keeping or ex[1] The rulings of the court upon the ad. hibiting, a table for gaming in violation of

Code 1907, 8 6985.
mission of testimony were clearly free from
error, and need no discussion. Nor was

Appeal from Circuit Court, Russell Counthere any error in overruling defendant's

ty; Lum Duke, Judge,
motion for a new trial. The principal ground
of the motion was predicated upon the al.

Charlie Windham was convicted of keep
leged fact that the trial judge viewed the ing a gaming table, and appeals. Reversed
locus in quo. The voluntary statement of the and remanded.
trial judge as to his having gone out in the Harwell G. Davis, Atty. Gen., for the State.
neighborhood where the offense is said to
have been committed pending the trial has BRICKEN, P. J. [1] The defendant was
been carefully considered. We find nothing indicted for the violation of section 6985 of
therein upon which to impute any wrong do- the Code 1907-keeping a gaming table. Up
ing upon his part, or that could be designated on the trial of this case in the court below,
as improper conduct. We will not put the the court, over the seasonable and insistent
court to error in this connection upon the objections of defendant, allowed the state to
testimony offered upon the motion, as noth- prove a separate and distinct offense against
ing is shown which could have injuriously defendant, that of violating the prohibition
affected the substantial rights of the defend- law, and overruled a motion to exclude this
ant. Especially is this true as the defense testimony. The exceptions reserved to the
interposed was an alibi and that the defend- court's rulings in this connection are well
ant did not participate in any manner in the taken, for in each of these rulings the court
assault upon Dumas, the injured party. committed prejudicial error, necessitating a

[2] As stated this trial was had before the reversal of the judgment appealed from. A Judge without a jury, and the rule in this defendant, charged with a criminal offense, state is that the conclusion of a court sitting whether by complaint or indictment, is re without a jury, if based upon the oral testi- quired to answer only the specific charge con. mony of witnesses, must on appeal be given tained in the accusation against him, and the force and effect of a verdict of a jury, none other. The rulings of the court, here and, unless plainly wrong, cannot be disturbo complained of, appear to be in the teeth of ed. Millner v. State, 150 Ala, 95, 43 South. the constitutional provision, which provides 194.

that in all criminal prosecutions the accus. The judgment appealed from is affirmed. ed has a right to be heard by himself or Affirmed.

counsel, or either, to demand the nature and cause of the accusation, etc. Const. 1901, § 6. In Gassenheimer v. State, 52 Ala. 313,

the Supreme Court said: WINDHAM v. STATE. (5 Div. 452.) “No man shall be twice put in jeopardy for

the same offense, and of the nature and cause (Court of Appeals of Alabama. June 3, 1924.) of the accusation made against him he shall

be fully informed before he is called to trial, 1. Criminal law e369(1)-Admission of proof is the paramount law of the land. Than that of commission of other offense, and refusal to accusation he cannot be supposed to stand preexclude same, held reversible error.

pared to answer." In a prosecution for keeping a gaming table, in violation of Code 1907, § 6985, allowing See, also, Dennison v. State, 17 Ala. App. state, over, objections, to prove a violation by 674, 88 South. 211, upon which authority a accused of the prohibition law, and overruling reversal of the judgment in this case could motion to exclude such evidence, held reversible properly. be predicated. As said in the Denerror, in view of Const. 1901, § 6.

nison Case, supra : 2. Criminal law e308—Presumption of inno "The justice, fairness, and reason for the cence prevails until proof establishes guilt rule is apparent, and

a strict adherbeyond all reasonable doubt and to moral cer. ence to it is necessary to prevent criminal

prosecutions from becoming instruments of Burden resting on state required that guilt oppression and injustice.'” of accused be established beyond all reasonable doubt and to a moral certainty, and until such

The evidence thus erroneously allowed and evidence was adduced the presumption of in the fact proven thereby was in no sense ap

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

tainty.

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