ÆäÀÌÁö À̹ÌÁö
PDF
ePub

(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 the bond executed in their favor, the surety will not be permitted to escape liability upon the ground that there has been a substantial change in the contract as between the owner and the contractor. The obligation of the surety to the laborers and materialmen is statutory, and is as distinct from the conventional obligation to the owner for the faithful performance of the building contract as if contained in a separate agreement. Victoria Lbr. Co. v. Wells, 139 La. 503, 71 South. 781, L. R. A. 1916E, 1110, Ann. Cas. 1917E, 1083; U. S. F. & G. Co. v. D'Angelo, 150 La. 188, 90 South. 564; Shreveport Bldg. Ass'n v. Whittington (on rehearing) 141 La. 47, 74 South. 591.

Plaintiff, therefore, is merely a nominal party to the suit, and the mass of testimony in the record, admitted over plaintiff's objection, adduced for the purpose of showing the alleged changes and alterations in the original contract, is without effect upon the claims of the lienors, the real parties in

interest.

Defendants advance the further contention that the lienors cannot recover for the reason that they have not established that their labor and materials were used in or on the work. Neither in argument nor in brief submitted on behalf of defendants has it been shown which of the lienors have failed in this respect. The particular items have not

been pointed out, nor the details given. The

court below allowed the claims in full. Such examination as we have been able to make of this voluminous record has not disclosed any error in the court's award.

[2] The defense offered by the indemnitors to the claim of the surety against them is identical with that urged by the surety against the demands made upon it. The obligations of the indemnitors to the surety are the same as the obligations of the surety to its indemnitees. Since the surety is liable on its bond, it follows that the indemnitors

are responsible under their contract of indemnity.

[3] The surety and its indemnitors, by way of reconvention, prayed for judgment against the plaintiff bank, as owner of the building, for the amount of such judgment or judgments as might be rendered against them. The court below, and we think correctly, dismissed these demands.

cause of action in favor of the surety against the owner. The respective obligations of the owner and surety were fixed by the bond itself. The provisions of the bond affecting the laborers and materialmen were independent of the stipulations affecting the owner. The surety's engagement to the owner was to secure the faithful performance of the contract by the contractor. This obligation was in favor of the owner and against the surety and not in favor of the surety and against the owner.

In a case involving the identical issue, this court has said:

"The suretyship contract was a contract in favor of the owner. Hence the violation of it by this owner could not give rise to a cause of action against the owner. The building contract was one between the owner and the contractor. The violation of it could not give rise to a cause of action in favor of the surety. The debts to the materialmen are due by the contractor. The payment of them could not give rise to a cause of action against the owner, who does not owe them." United States Fidelity & Guaranty Company v. D'Angelo, 150 La. 188, 90 South. 564.

See, also, Victoria Lbr. Co. v. Wells, 139 La. 503, 71 South. 781, L. R. A. 1916E, 1110, Ann. Cas. 1917E, 1083.

The lienors, by supplemental answers, prayed for judgment for 10 per cent. of the amounts of their respective claims, as at

torney's fees. This demand was made by

virtue of the provisions of Act 225 of 1918.

The surety company, under the terms of its indemnity contract, likewise elaimed attorney's fees from its indemnitors in a sum to be fixed by the court.

These claims for attorney's fees were rejected by the court below. They are insisted on in the briefs filed in this court on behalf of the parties.

[4] Inasmuch as the appeals of the lienors were taken and perfected out of an abundance of caution against the judgment dismissing their claims against the owner, and not from the judgment in their favor against the surety company, and, inasmuch as the appeal of the surety company was taken and perfected against the judgment rendered against it in favor of the lienors and not from the judgment in its favor against its indemnitors, we are unable to consider and act upon their demands for attorney's fees. Judgment affirmed.

Under the statute, the owner was relieved of all liability to the laborers, and materialmen when it furnished the bond securing the payment of their claims. The judgment against the surety in favor of the furnishers of DAWKINS, LAND, and LECHE, JJ.

O'NIELL, C. J., concurs in the decree.
Rehearing refused by Division B, composed

(156 La.)

No. 26397.

STATE v. SHARP.

The act under which defendant was convicted authorizes the imposition of a fine not exceeding $500, or incarceration in the parish 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

(Syllabus by Editorial Staff.)

Fines 11-Sentence imposing fine and imprisonment and additional imprisonment for failure to pay fine held authorized.

Under Act No. 39 of Extra Sess. 1921, § 3, authorizing fine of $500 and imprisonment for 60 days, or both, for offense of unlawfully transporting intoxicating liquor, and Rev. St., § 980, authorizing imprisonment for one year for default in payment of a fine, defendant convicted of unlawfully transporting intoxicating liquor held properly sentenced to 60 days' imprisonment, and fine of $500, and in default of payment of fine to one year's additional imprisonment.

Appeal from Twenty-Fifth Judicial District Court, Parish of Tangipahoa; Robert S. Ellis, Judge.

Levi Sharp was convicted of unlawfully transporting intoxicating liquor, and he appeals. Affirmed.

Ponder & Ponder, of Amite, for appellant. A. V. Coco, Atty. Gen., and M. J. Allen, Dist. Atty., of Amite (T. S. Walmsley, of New Orleans, and A. J. Bordelon, of Marksville, of counsel), for the State.

By Division C, composed of OVERTON, ST. PAUL, and THOMPSON, JJ.

OVERTON, J. Defendant was indicted for unlawfully transporting intoxicating liquors for beverage purposes, was tried, found guilty, and sentenced to 60 days in jail; to pay a fine of $500, and, in default of paying the fine, to one year additional in the parish jail.

Defendant complains in this court that Act. 39, Extra Session of 1921-the act under which he was convicted-does not authorize the sentence imposed. His position is that the act does not sanction the imposition of a jail sentence exceeding 60 days for the offense for which he has been convicted, when the conviction is, as is the case here, for the first transgression of the statute.

toxicating liquor for beverage purposes; this being, as we have said, the offense for which the sentence was imposed. Section 3 of Act 39 of Extra Session of 1921.

As the trial judge has imposed in this case all of the fine and all of the imprisonment authorized by the statute as the punishment for the offense for which the de fendant was convicted, it is obvious that, if defendant should default in the payment of the fine, or if the fine should not be recovered out of his estate, then its imposition would amount to nothing. The law does not contemplate, however, that the imposition of a fine may be ignored by the one against whom it is imposed. Therefore it has provided that

"Every person being adjudged to pay a fine, shall, in default of payment or recovery thereof, be sentenced to be imprisoned for a period not exceeding one year." Revised Statutes, § 980.

The purpose of this section is to provide a means for the enforcement of payment of a fine, in a case where the statute authorizing its imposition does not provide such means. As was said in State v. Jumel, 13 La. Ann. 399, the purpose of the section is not to punish the one convicted for the offense for which he was convicted, but to compel him to execute the sentence of the court by paying the fine.

Since, in the case at bar, the trial judge imposed a fine, as authorized by the statute under which defendant was convicted, and as that statute does not provide the means for enforcing payment of the fine, the judge had a right to resort to section 980 of the Revised Statutes to obtain such means, and therefore to pronounce the sentence imposed of one year additional imprisonment in default of the payment of the fine. State v. Payne, 134 La. 269, 63 South. 899; State v. Doras Hebert (No. 26165) 101 South. -, not yet officially reported.

For the reasons assigned, the sentence appealed from is affirmed.

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

ROCK v. STATE. (6 Div. 224.)

(100 So.)

(Court of Appeals of Alabama. June 3, 1924.) 1. Criminal law1160-Denial of motion for new trial not reversed in absence of bias.

In absence of bias on part of county or circuit court, in both of which defendant was convicted, appellate court cannot reverse circuit judge's denial of defendant's motion for new trial.

2. Criminal law 807(1) -Charge held properly refused as merely argumentative.

Charge that it is not enforcement of law to convict only, but it is to find a true and correct verdict from testimony and law as given by court, held properly refused as merely argumentative.

3. Intoxicating liquors235-Evidence of buyer's possession of other whisky than that purchased from defendant held properly excluded.

Evidence that one purchasing whisky from defendant had other whisky held properly excluded as immaterial and irrelevant.

Appeal from Circuit Court, Blount County; Woodson J. Martin, Judge.

Bun Rock was convicted of violating the prohibition law, and appeals. Affirmed.

objection to defendant's question, undertaking to prove that fact.

We find no error in the record, and the judgment is affirmed. Affirmed.

MYRICK v. STATE. (8 Div. 131.)

(Court of Appeals of Alabama. June 3, 1924.)

1. Indictment and information 110(31) Indictment in statutory language for manufacturing prohibited liquors and possessing still sufficient.

Indictment, in language of statute, for manufacturing prohibited liquors and possessing still is sufficient.

130-Differ

2. Indictment and Information
ent offenses of same nature may be charged
in separate counts,

Two or more offenses of same nature and family of crime, having same mode of trial and nature of punishment, may be charged in separate counts.

3. Indictment and information 129 (1) Charges of distilling and possessing still may be joined in separate counts.

Charges of distilling and possessing still

Charge 8, refused to defendant, is as fol- may be joined in separate counts.

lows:

"(8) The court charges the jury that it is not an enforcement of the law to convict only, but it is to find a true and correct verdict from the testimony and the law as given to you by the court."

A. A. Griffith, of Cullman, and P. A. Nash, of Oneonta, for appellant.

4. Criminal law 878(2)-General verdict of guilty as charged not error, if sentence is no greater than punishment prescribed for one offense.

General verdict of guilty as charged in indictment, charging manufacture of prohibited liquors and possession of still in separate counts, will support conviction, and is not 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.

SAMFORD, J. [1] The evidence is in conflict. The case was first tried in the county court, and a judgment of guilt was there pronounced. On appeal the cause was submitted to a jury under a fair and impartial charge of the court and a verdict of guilt returned. On motion for new trial the judge trying the case overruled the motion. There is nothing in this record to convince us of a bias on the part of either tribunal passing upon this case, and under the law as it is we must hold that this court would be unwarranted in reversing the trial judge in his ruling denying the motion for a new trial. Miller v. Southern Bell Telephone & Telegraph Co., 195 Ala. 413, 70 South. 730.

[2] Charge 8, refused to defendant, is merely an argument and was properly re

fused.

[3] The fact that Clyde Smith had possession of other whisky than that bought by him from defendant would be immaterial and irrelevant, and the court properly sustained

is prescribed for one offense.

Appeal from Circuit Court, Lauderdale County; Chas. P. Almon, Judge.

Jim Myrick was convicted of violating the prohibition law, and appeals. Affirmed.

Mitchell & Hughston, of Florence, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

1

FOSTER, J. The first count in the indictment charged the manufacture of prohibited liquors, and the second count charged the possession of a still. There was a general verdict of guilty as charged in the indictment. There was ample evidence to support the verdict of the jury.

The defendant filed a motion for a new trial on the grounds:

"(1) That the verdict in said cause charges two separate and distinct offenses, one of which charged that the defendant manufactured spirituous, alcoholic or malt liquors contrary to

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

on oral testimony in trial without jury not disturbed, unless plainly wrong.

law, and the other offense charged that the 12. Criminal law1158(1)-Court's conclusion defendant had in his possession a still or apparatus for the purpose of manufacturing spirituous, alcoholic or malt liquors contrary to law, and the verdict in this cause found the defendant guilty as charged in the indictment, which verdict is vague, indefinite and uncertain and insufficient to support a conviction under the indictment.

"(2) That said verdict is defective, for the reason that it cannot be ascertained for what offense the defendant was convicted.

"(3) That the verdict in this case is contrary to the great weight of the evidence.

"(4) That the indictment in this case charges no offense known to the law, and in its present form will not support a verdict of conviction."

[1] The indictment followed the language of the statute, and was sufficient. Johnson v. State, 152 Ala. 46, 44 South. 670; Kimbell v. State, 165 Ala. 118, 51 South. 16; Jordan v. State, 5 Ala. App. 229, 59 South. 710; 8 Michie's Dig. p. 629, § 57.

[2] Two or more offenses may be charged in separate counts of an indictment, if the offenses are of the same nature, belong to the same family of crime, have the same mode of trial and nature of punishment. Lowe v. State, 134 Ala. 154, 32 South. 273; Thomas v. State, 111 Ala. 51, 20 South. 617.

[3] The charges of distilling and possess ing a still may be joined in separate counts of an indictment. Casey v. State (Ala. App.) 97 South. 165; Nichols v. State, 18 Ala. App. 184, 89 South. 847.

Conclusion of court sitting without jury, if based on oral testimony, must be given force and effect of jury's verdict on appeal, and cannot be disturbed unless plainly wrong.

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Shelton Summers was convicted of assault and battery, and appeals. Affirmed.

The statement of the trial judge recites:

"[I] saw no place that the evidence offered on the trial indicated was the place where the assault and battery occurred. * In going from North Second street at Canterberry Station to the mill I followed as best I could the route mapped out by the testimony offered in this case. I did this for the purpose of enabling myself to understand the testimony offered both by the state and the defense in this case."

Affidavits offered in support of the motion for new trial, are made by the defendant and his attorneys, and affirm that affiants were not invited to view the locus with the trial judge, and had no notice of his purpose to do so.

J. M. Miller and E. O. McCord & Son, all of Gadsden, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN, P. J. The undisputed testimony in this case shows that on or about

[4] A general verdict of "guilty as charged 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 injur

hibited liquors and a count charging the possession of a still, will support a conviction under the indictment, and is no ground for arrest of judgment or of error, when the sentence pronounced does not impose a greater punishment than is prescribed for one of fense. Sampson v. State, 107 Ala. 76, 18 South. 207; Johnson v. State, 50 Ala. 456.

The motion for a new trial was properly

overruled.

There is no error in the record. The judgment of the circuit court is affirmed. Affirmed.

SUMMERS v. STATE. (7 Div. 952.) (Court of Appeals of Alabama. June 3, 1924.)

1. Criminal law918(1)-Overruling motion for new trial because of trial judge's view without notice to defendant held not error.

Overruling motion for new trial on ground that trial judge viewed locus in quo of alleged

assault without notice to defendant and his attorneys held not error, especially where defendant interposed alibi; his substantial rights not being injuriously affected.

ed, was working for the Gadsden Car Works during a strike. That above 5:30 o'clock on the afternoon in question he (Dumas) was forcibly jerked from a bus at Canterberry station by several men and carried about a mile and a half to Black's creek, where he was severely beaten and bruised and thrown in the creek by these men, and was called a Gd scab, etc. The defendant denied all connection with the beating of Dumas, and testified that he was not present at the

time Dumas was injured, but was at another and different place. The injured party identified this defendant as one of his assailants, and there was other testimony of like import adduced by the state on this trial. In addition to the defendant's own testimony he offered other evidence corroborative of his insistence that he was not present when the offense complained of was committed.

The offense complained of in the indictment, that is, the corpus delicti, having been proven without conflict, the material ques

tion presented upon this trial was whether or not this defendant was one of the parties who committed the offense. This question was decided adversely to the defendant

(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.

to support conviction for keeping gaming table,

No brief has been filed in behalf of appel-Gaming 98(4) -Evidence held insufficient lant; however, the whole evidence has had our attentive consideration, and in our opinion the court properly convicted this defendant, as the evidence was ample upon which to predicate the judgment rendered.

[1] The rulings of the court upon the admission of testimony were clearly free from error, and need no discussion. Nor was there any error in overruling defendant's motion for a new trial. The principal ground of the motion was predicated upon the alleged fact that the trial judge viewed the locus in quo. The voluntary statement of the trial judge as to his having gone out in the neighborhood where the offense is said to have been committed pending the trial has been carefully considered. We find nothing therein upon which to impute any wrong doing upon his part, or that could be designated as improper conduct. We will not put the court to error in this connection upon the testimony offered upon the motion, as nothing is shown which could have injuriously affected the substantial rights of the defendant. Especially is this true as the defense interposed was an alibi and that the defendant did not participate in any manner in the assault upon Dumas, the injured party.

[2] As stated this trial was had before the Judge without a jury, and the rule in this state is that the conclusion of a court sitting without a jury, if based upon the oral testimony of witnesses, must on appeal be given the force and effect of a verdict of a jury, and, unless plainly wrong, cannot be disturbed. Millner v. State, 150 Ala. 95, 43 South.

194.

The judgment appealed from is affirmed.
Affirmed.

WINDHAM v. STATE. (5 Div. 452.) (Court of Appeals of Alabama. June 3, 1924.)

1. Criminal law 369(1)-Admission of proof of commission of other offense, and refusal to exclude same, held reversible error.

In a prosecution for keeping a gaming table, in violation of Code 1907, § 6985, allowing state, over, objections, to prove a violation by accused of the prohibition law, and overruling motion to exclude such evidence, held reversible error, in view of Const. 1901, § 6.

2. Criminal law308-Presumption of innocence prevails until proof establishes guilt beyond all reasonable doubt and to moral certainty.

Burden resting on state required that guilt of accused be established beyond all reasonable doubt and to a moral certainty, and until such evidence was adduced the presumption of in

Evidence held not to show beyond a reasonable doubt that accused kept, exhibited, or was interested or concerned in keeping or exhibiting, a table for gaming in violation of Code 1907, § 6985.

Appeal from Circuit Court, Russell County; Lum Duke, Judge.

Charlie Windham was convicted of keeping a gaming table, and appeals. Reversed and remanded.

Harwell G. Davis, Atty. Gen., for the State.

BRICKEN, P. J. [1] The defendant was indicted for the violation of section 6985 of the Code 1907-keeping a gaming table. Upon the trial of this case in the court below, the court, over the seasonable and insistent objections of defendant, allowed the state to prove a separate and distinct offense against defendant, that of violating the prohibition law, and overruled a motion to exclude this testimony. The exceptions reserved to the court's rulings in this connection are well taken, for in each of these rulings the court committed prejudicial error, necessitating a reversal of the judgment appealed from. A defendant, charged with a criminal offense, whether by complaint or indictment, is required to answer only the specific charge contained in the accusation against him, and none other. The rulings of the court, here complained of, appear to be in the teeth of the constitutional provision, which provides that in all criminal prosecutions the accused has a right to be heard by himself or 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:

"No man shall be twice put in jeopardy for the same offense, and of the nature and cause of the accusation made against him he shall be fully informed before he is called to trial, is the paramount law of the land. Than that accusation he cannot be supposed to stand prepared to answer."

See, also, Dennison v. State, 17 Ala. App. 674, 88 South. 211, upon which authority a reversal of the judgment in this case could properly be predicated. As said in the Dennison Case, supra:

"The justice, fairness, and reason for the rule is apparent, and * * 'a strict adherence to it is necessary to prevent criminal prosecutions from becoming instruments of oppression and injustice," "

The evidence thus erroneously allowed and the fact proven thereby was in no sense an

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

« ÀÌÀü°è¼Ó »