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tal offenses, when the proof is evident or the facts in the case. The court, in its oral presumption great; and that excessive bail shall charge, devoted much time and charged at not in any case be required."

length upon this phase of the case. We have

seldom seen in a record an oral charge on Weight must be given to the finding of this question more clear, and explicit, than facts by the primary court who sees and here appears. Every right of the defendant un. hears the witnesses. Unless error is ap der the law of self-defense was explained parent, his ruling will not be disturbed. and emphasized, and every proposition of

It is our opinion that the ruling of the law set forth in the refused written charges court allowing the petitioner bail is free is fully covered. Some of these charges asfrom error. Ex parte Dykes, 83 Ala. 114, sert correct propositions; but, as every such 3 South. 306; Ex parte Hammock, 78 Ala. charge is fully covered in the oral charge, 414; Ex parte Bryant, 36 Ala. 270.

it will not be necessary to discuss them in Affirmed.

detail

The other insistencies of error are based upon the court's rulings on the admission of

testimony: McGIMPSEY v. STATE. (6 Div. 256.)

[1] 1. Haden, a character witness for de(Court of Appeals of Alabama. April 8, 1924. fendant, while being examined, was asked by Rehearing Denied May 13, 1924.)

the defendant: 1. Witnesses 357—Question to character

"From the number of years you have known witness properly sustained.

defendant, I will ask you to tell the jury Objection to question to character witness whether or not you would believe Mr. McGimpfor defense as to whether from number of sey on oath even though his liberty or his years he had known defendant he would be future welfare was at stake." lieve him on oath, even though his liberty or The court sustained objection to this ques. future welfare was at stake, was properly sus tion, and defendant excepted. Defendant tained; general character or reputation not then offered to prove facts indicated in the being provable by personal or individual knowledge of witness.

question. General character or reputation

cannot be shown by the personal or individ2. Homicide Cam 163(2)-On issue of character ual knowledge of the witness. Stone v. of deceased for peace and quiet, question as State, 208 Ala. 50, 93 South. 706. to general character held properly excluded.

[2] 2. A line of questions by defendant's Where material inquiry in homicide case was as to character of deceased for peace and counsel to character witness on cross-exami. quiet, question, asked on cross-examination of nation is illustrated by the following: Alcharacter witness for state, as to whether he len was being examined by the state as to would consider man of good character who the character of deceased for peace and quiet. would marry common prostitute, was properly On cross-examination this witness excluded; general character of deceased not asked: being pertinent to issue.

“Would you consider a man of good charac

ter who would marry a whore or a common Appeal from Circuit Court, Jefferson Coun- prostitute and take her to the home of his ty; William E. Fort, Judge.

mother and introduce her to his mother, father, Ben McGimpsey was convicted of murder and sisters as his wife?" in the second degree, and appeals. Affirmed.

The court sustained the state's objection to Certiorari denied by Supreme Court in Ex these questions when asked, and defendant parte McGimpsey, 100 South. 629.

excepted. A material inquiry in the case John T. Glover, John W. Altman, J. K. was the character of deceased for peace and Taylor, and W. A. McCall, all of Birming- quiet, as tending to shed light on the actions ham, for appellant.

of both parties at the time of the difficulty. Harwell G. Davis, Atty. Gen., Lamar Field, 8 Mich. Dig. 287 (169). The general charAsst. Atty. Gen., and Jim Davis, Sol., of acter of deceased was not pertinent to the Birmingham, for the State.

issue. The defendant could not be justified

for killing a man of general bad character, SAMFORD, J. The evidence was in direct nor would that fact tend to establish any percontlict on all material points; that for the tinent inquiry touching the issue involved. state tending to establish a case of murder, The cases cited by appellant are not in point. and that for the defendant tending to prove 3. The discussion of the character of deself-defense. The homicide took place in a ceased after his death is not relevant. Charroad house owned and run by the defendant acter or reputation is made in life and death in Jefferson county, Ala.

marks a period. The various written charges requested by 4. The question relative to the reputation defendant and refused by the court relate to of defendant's witness McDaniel is not of the law of self-defense as applied to the sufficient importance to affect the result one

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

was

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(100 So.) way or another.

The defendant's counsel Certiorari denied by Supreme Court in Ex had followed a similar inquiry with refer- parte Glaze, 100 South. 630. ence to this same witness, all of which might

Hooton & Hooton, of Roanoke, and D. W.
have been excluded without prejudice to the Jackson, of Lafayette, for appellant.
defendant.

Harwell G. Davis, Atty Gen., and Lamar
We find no error in the record. Let the Field, Asst. Atty. Gen., for the State.
Judgment be affirmed.
Affirmed.

BRICKEN, P, J. The first count of the indictment, under which this defendant was

convicted, charged that he did distill, make, Ex parte Ben McGIMPSEY. (6 Div, 182.) or manufacture alcoholic, spirituous, malted,

or mixed liquors or beverages, a part of (Supreme Court of Alabama. June 5, 1924.) which was alcohol, contrary to law.

During the trial of this case several objec Certiorari to Court of Appeals.

tions were interposed, but no exceptions were John W. Altman, of Birmingham, for peti reserved to the rulings of the court, except tioner.

in one instance, and that exception is with. Harwell G. Davis, Atty. Gen., opposed.

out merit. PER CURIAM. Petition of Ben McGimp

But one question is presented: The refusal seg for certiorari to the Court of Appeals to of the affirmative charge requested in writing review and revise the judgment and decision by defendant. of said court in the case of McGimpsey V. [1, 2] The undisputed testimony in this State, 100 South. 628.

case shows that the defendant was found by Writ denied.

the state witness alone at a still in ChamANDERSON, C. J., and SAYRE, GARD- | bers county within the time covered by the NER, and MILLER, JJ., concur.

indictment; that in addition to a complete still there was also about 60 gallons of beer, which, in the language of witness J. W. Lane, contained alcohol, the witness stating, "I

would say that the condition of the beer was GLAZE V. STATE. (5 Div. 433.)

ripe. I drank some of it. It had alcohol in

it.” There was testimony showing that the (Court of Appeals of Alabama. April 15, officers were hidden near the still, which had 1924. Rehearing Denied May 13, 1924.)

been discovered by them, and, after waiting

and watching for about two hours, they saw 1. Intoxicating liquors Om 137—Manufacture the defendant go to the still, coming from of beer containing alcohol held violation of the direction of his home. That he carried statute.

to the still a lot of “kindling" in a sack, and Manufacture of beer containing alcohol also some empty containers, and that he was held to violate statute prohibiting distilling, in the act of making a fire under the still making, or manufacturing of alcoholic, spirit- when the officers approached and arrested uous, malted, or mixed liquors or beverages, a him. These facts, together with others of part of which is alcohol.

similar import, we think, made a question for 2. Intoxicating liquors. Can 238(1)-Evidence the determination of the jury, and under held to make case for jury.

these facts the defendant was not entitled to In prosecution under indictment charging the general afirmative charge. If the beer the distilling, making or manufacturing of al- in question contained alcohol, and as to this coholic, spirituous, malted, or mixed liquors proposition the evidence was not in conflict, or beverages, a part of which was alcohol, evi- and if the defendant made that beer, his acts dence held sufficient for submission of case to in so doing came within the terms of the jury.

statute which prohibits the distilling, mak-3. Criminal law Em753 (2)-Defendant not en- ing, or manufacturng any alcoholic, spiritu

titled to directed verdict, where there was ous, malted, or mixed liquors or beverages, some evidence tending to prove him guilty any part of which is alcohol, and the terms under one count.

of this statute are violated, if the liquor or Where there was some testimony showing beverage so made or manufactured contains or tending to show defendant guilty under one alcohol, even though such liquor or beverage count of indictment, court was not authorized

was not made by the process of distilling. to direct a verdict for defendant.

It is sufficient if such liquor or beverage is Samford, J., dissenting.

made or manufactured in any manner, and

the state is not required to show that such Appeal from Circuit Court, Chambers liquor or beverage, a part of which is alcoCounty; Lum Duke, Judge.

hol, was actually distilled into whisky or Troup Glaze was convicted of distilling, other spirituous liquor or beverage. Floyd and he appeals. Affirmed.

v. State, 18 Ala. App. 647, 94 South. 192. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[3] The defendant was present and alone dence could not be convicted of manufacturat the still. There was testimony tending to ing a distilled liquor, and, if guilty, must be show possession or ownership by defendant, proceeded against under the third definition and that he was exercising superintendence as set out in section 1, Acts 1915, p. 1, on a and control thereof. As to whether the tes- charge of fermenting or brewing a liquor or timony introduced upon the trial of this case beverage. was sufficient to meet the burden of proof It was in evidence there was present one always necessary in the trial of a criminal and one-half barrels of beer or mash from case, this was a question for the jury Un- which whisky was distilled, that this conquestionably there was some testimony show-stained alcohol, and the officer even said he ing or tending to show the guilt of the de- ! drank some of it. But there was no evidence fendant as charged in count 1 of the indict- that defendant made it or fermented it, or ment; this being true, the court wouid not that the tuid or liquid was capable of being be authorized to direct the verdict, for the used as a beverage. There was evidence of general rule is that the attirmative charge defendant's possession, but not of manufacshould never be given when there is any evi- I ture, there was no evidence of the stuff being dence, however weak and inconclusive it may a beverage or capable of being used as such. be, tending to make a case against the party Under the evidence the defendant might who asks it. Lee v. State, 18 Ala. App. 560, bave been convicted of possessing a still, but 93 South. 59; Anderson v. State, 18 Ala. of this charge he was acquitted. On another App. 585, 93 South. 279.

trial the evidence may be adduced sufficient No error appearing in any ruling of the to convict the defendant, but it does not apcourt which is presented for our considera- pear in this record. There is not an authortion, and the record being also free from er- ity to be found in all the realm of judicial ror, the judgment of the circuit court of decisions contrary to the rule as stated Chambers county is affirmed.

above. Affirmed.

SAMFORD, J. (dissenting). It seems to me that the majority is in error in this case, in

Ex parte Troup GLAZE. (5 Div. 895.) that they have assumed without sufficient proof that the “beer” or “mash" from which (Supreme Court of Alabama. June 12, 1924.) whisky is distilled is capable of being used

Certiorari to Court of Appeals. for beverage purposes. As used in our statutes defining the term (Acts 1915, p. 1, § 1,

Hooton & Hooton, of Roanoke, for peti

tioner. and Acts 1919, p. 7, § 1), the word liquor is

Harwell G. Davis, Atty. Gen., opposed. not used in that broad sense, which means any fluid or liquid, but is used in conjunction

BOULDIN, J. Petition of Troup Glaze for with the word beverage. Section 1, Acts certiorari to the Court of Appeals to review 1915, begins: The term “prohibited liquors and revise the judgment and decision there and beverages ;” and throughout the entire rendered in the case of Glaze v. State, 100 system of laws enacted in this state the evi- South. 629. dent intent of the Legislature was to pro

Writ denied. hibit the manufacture of liquors capable of ANDERSON, C. J., and SOMERVILLE and being used as a beverage. Extracts of vari- THOMAS, JJ., concur, ous kinds, medicines of many varieties, are in the broader sense liquors, but, not being capable of being used as a beverage, are not affected by the statutes. The foregoing is in line with the great weight of authority. DICKEY et al. v. STATE. (4 Div. 940.) Foster v. State, 36 Ark. 258; People v. Haw- (Court of Appeals_of Alabama. April 15, ley, 3 Mich. 330; Tomkins County v. Taylor,

1924. Rehearing Denied May 13, 1924.) 21 N. Y. 173; Moore v. State, 96 Tenn. 544, 35 S. W. 556; Malone v. State, (Tex. Cr. Intoxicating liquors On 236(19) Evidence App,) 51 S. W. 381; Luther v. State. 83 Neb. held to sustain conviction. 455, 120 N. W. 125, 20 L. R. A. (N. S.) 1146; Evidence held to sustain a conviction of 15 R. C. L. 248 (4). In Pennell v. State, 141 one defendant for possessing a still. Wis. 35, 123 N. W. 115, it was held that the word “liquor" in a statute regulating or for

Appeal from Circuit Court, Pike County; bidding the sale of intoxicants means an al- Arthur E. Gamble, Judge. coholic beverage. In Austin v. Shelton, 122 John and Jim Dickey were convicted of Tenn. 634, 127 S. W. 446, liquor is defined as possessing a still, and appeal. Affirmed as to being confined to beverages when used in pro- Jim Dickey; reversed and remanded as to hibition statutes. To the same effect are the John Dickey. cases of Allen v. Carbonic Co., 170 Fed. 315, Certiorari denied by Supreme Court in Ex 95 C. C. A. 11. The defendant under the evi- | parte Dickey, (Ala. Sup.) 100 South. 631.

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

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(100 So.)
A. G. Seay, of Troy, for appellants. expressed in or gathered from their agreement
Harwell G. Davis, Atty. Gen., and Lamar and the circumstances attending its execution;
Field, Asst. Atty. Gen., for the State.

but, when the rights of third persons who have

dealt with them are involved, a partnership SAMFORD, J. The fact that the still may arise by estoppel without an inquiry into, was found set up and warm on the premises or in direct opposition to, the expressed inof Jim Dickey, 142 yards from the back of tention of the parties. his garden, where was found buried five 2. Partnership w38-Extent of liability for barrels, one of which contained cane beer acts of partner in case of partnership by es. and another cane skimmings, that there toppel, stated. were at this place three empty holes the When persons hold themselves out as partsize of barrels, that two barrels were found ners and thereby induce others to deal with at the cane mill, with dirt on them of the them in that capacity, it is no defense that no same character as that found in the empty partnership as a matter of fact exists, and one holes, that the barrels were about 75 yards amounted to a representation that another was

whose previous declarations or conduct have from the cane mill, that Jim Dickey, the his partner will be liable as such for the acts owner of the place, was working at the cane of the other within the scope of the firm's busimill when the officers arrived, that a path ness, though not consulted and without knowlled from the cane mill to the barrels and edge of the transaction, if one relying on the from the barrels to the still, that there were truth of such representations has been misled fresh tracks in the path leading from the thereby to his prejudice. barrels to the still, that at the still was 3. Partnership cam 56_Evidence held to sustain. found a purse containing a scrap of paper, finding that plaintiff was justified in dealing admittedly recently in the possession of with defendants as partners. Jim Dickey, together with some other cir Evidence held to sustain finding that plaintiff cumstances of a minor nature tending to was justified in dealing with defendants as show a preparation towards distilling liq- partners, as against one defendant's contention uor, was sufficient upon which to base a that they were not partners. verdict of guilt as to Jim Dickey.

HO

4. Detinue ww5_Buyer entitled under bill of As to John Dickey there is no evidence in sale to immediate possession could bring acthis record connecting him either with manu

tion. facturing liquor or possessing a still. As to One to whom a bill of sale for lumber had this defendant the court erred in refusing been executed and to whom it was constructo give the general affirmative charge. tively delivered, giving him the right to imme

The judgment as to Jim Dickey is af- diate possession, could bring action in detinue firmed, and the judgment as to John Dickey

for possession. is reversed, and the cause is remanded. 5. Appeal and error m1011(1)-Findings of Reversed and remanded.

fact on conflicting testimony not disturbed.

Findings of fact on co icting testimony will not be disturbed.

Ex parte Jim DICKEY. (4 Div. 139.) Appeal from Circuit Court, Choctaw Coun(Supreme Court of Alabama. June 12, 1924.) ty; Ben D. Turner, Judge. Certiorari to Court of Appeals.

Action in detinue by Charles McAllister

against L. E. Loftis and Reubin Dicks. A. G. Seay, of Troy, for petitioner.

From a judgment for plaintiff, defendant Harwell G. Davis, Atty. Gen., opposed.

Dicks appeals. Affirmed. SOMERVILLE, J. Petition of Jim Dickey Certiorari denied by Supreme Court in for certiorari to the Court of Appeals to re Ex parte Dicks, 100 South. 632.. view and revise the judgment and decision of said court in the case of Dickey' et al. v. State

R. Percy Roach, of Mobile, for 'appellant. (Ala. App.) 100 South. 630.

Gray & Dansby, of Butler, and John S. Writ denied.

Tilley, of Montgomery, for appellee. ANDERSON, C. J., and THOMAS and

FOSTER, J. Charles McAllister brought BOULDIN, JJ., concur.

suit in detinue in the circuit court of Choctaw county for 108,000 feet of lumber, and

Reubin Dicks defended as bailee for J. T. F. DICKS V. MCALLISTER. (2 Div. 270.)

Hairston. There was a trial before the court

without a jury, and judgment was rendered (Court of Appeals of Alabama. Feb. 19, 1924. in favor of the plaintiff for the lumber, or its Rehearing Denied April 8, 1924.)

alternate value of $485. From this judg. 1. Partnership 17, 34--Rule as to creation ment the defendant appeals to this court. of partnership as affected by intent stated. The facts in this case are substantially

Whether two persons were partners inter as follows: J. T. F. Hairston and L. E. Loftis sese must be determined by their intention as were interested together in cutting timber

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

near Mt. Sterling, in Choctaw county, Ala., | one whose previous declarations or conduct under an agreement by which Hairston was have amounted to a representation that anto furnish the stumpage; Loftis to furnish other was his partner will be liable as such the teams and sawmill and to haul the logs for the acts of the other if within the scope to the mill and manufacture the same into of the firm's business, although he was not lumber. The mill was about five miles from consulted and may not have known of the the Tombigee river, and Hairston was to transaction if one relying on the truth of pay $2 per thousand for hauling the lumber such representation has been misled there to the river. The balance of all expenses by to his prejudice. Alexander v. Handley, were to be borne equally between the parties, Reeves & Co., 96 Ala. 220, 11 South. 390; and they agreed to share the profits equally, Alabama Fertilizer Co. v. Reynolds, 85 though nothing was said about sharing Ala. 19, 4 South. 639; Levy v. Alexander, losses. Another term of the contract was 95 Ala. 101, 10 South. 394; Quarles v. Kendthat Hairston was to furnish money to rick Mercantile Co., 16 Ala. App. 486, 79 handle pay rolls. The plaintiff testified South. 160. that Hairston on one occasion told him he [3] There was evidence upon which the appreciated the way he treated his partner court could find that the plaintiff, a stranger, (Loftis). The business was done under the was justified in dealing with Loftis and name of the “Wahalak Lumber Company." Hairston as partners under the name of The business progressed under the terms of Wahalak Lumber Company. The court this agreement for a time, but Hairston found that there was such partnership. It finally refused to furnish additional money follows that Loftis had the power to execute for pay rolls, and there was evidence that the bill of sale for the lumber in the name he instructed Loftis to get the money where of the Wahalak Lumber Company giving he could. Loftis then procured the money to the plaintiff the legal title thereto and the handle certain pay rolls from the plaintiff right to immediate possession of the lumber. and executed to him a bill of sale for the [4] The plaintiff, having a general and 108.000 feet of lumber in controversy, which special interest in the lumber sued for with lumber was stacked in the millyard and right to the immediate possession, had & pointed out by Loftis to McAllister and con- right to maintain this action. Bank v. structive delivery made to him. Thereafter Barnes, 82 Ala. 607, 2 South, 349. Reubin Dicks, the defendant, acting for [5] This case was tried by the court with. Hairston, moved the lumber after having out the intervention of a jury, there was been warned by McAllister, and plaintiff conflicting testimony, and this court, in harthen levied upon the same by a writ of mony with the decisions cited below, will detinue September 13, 1919; the property not disturb the findings of fact by the lower thereafter being replevied by Reubin Dicks. court. L. E. Mutual Life & Accident Ass'n

[1] Counsel for both plaintiff and defend- v. Hughes, 204 Ala. 492, S6 South. 19; Bickant discuss at length the question of whether ley v. Murdock, 204 Ala. 192, 85 South, 461; the facts of this case show that there was a McSwean v. McSwean, 204 Ala. 663, 86 South. partnership between Loftis and Hairston, 616; Reed V. Banister, 202 Ala. 328, 80 as a result of their agreement. But we think South. 410; Grubbs v. Hawkins, 208 Ala. it is immaterial under the facts of this case 349, 94 South. 484; Wright v. McAbee, 208 whether or not the agreement between Loftis Ala. 404, 91 South. 732. and Hairston constituted them partners inter

The rulings of the court on the evidence sese. Whether they were partners inter were not prejudicial to the rights of the de sese must be determined by their intention fendant. as expressed in or may be gathered from The judgment of the lower court is af. the agreement between them and the cir-firmed. cumstances attending its execution. Brooke

Affirmed. v. Tucker, 149 Ala. 96, 43 South. 141; Couch v. Woodruff, 63 Ala. 466; Bestor v. Barker, 106 Ala. 240, 17 South. 389.

Ex parte Reubin DICKS. (2 Div. 839.) When the rights of third persons, who (Supreme Court of Alabama, June 12, 1924.) have dealt with parties associated in business, are involved, a partnership may arise

Certiorari to Court of Appeals. by operation of law without an inquiry into, R. Percy Roach, of Mobile, for petitioner. or in direct opposition to, the expressed in

Gray & Dansby, of Butler, and John S. Tilley, tention of the parties. This is technically

of Montgomery, opposed. called a partnership by "estoppel." Couch BOULDIN, J. Petition of Reubin Dicks for v. Woodruff, 63 Ala. 466.

certiorari to the Court of Appeals to review [2] It is a well-accepted principle of the and revise the judgment and decision there common law that when persons hold them- rendered in the cause styled Dicks v. McAllister, selves out as partners, and thereby induce

100 South. 631.

Writ denied. others to deal with them in that capacity, it is no defense that no partnership as a ANDERSON, C. J., and SOMERVILLE and matter of fact exists between them. And | THOMAS, JJ., concur.

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