tal offenses, when the proof is evident or the presumption great; and that excessive bail shall not in any case be required."

Weight must be given to the finding of facts by the primary court who sees and hears the witnesses. Unless error is ap parent, his ruling will not be disturbed. It is our opinion that the ruling of the court allowing the petitioner bail is free from error. Ex parte Dykes, 83 Ala. 114, 3 South, 306; Ex parte Hammock, 78 Ala. 414; Ex parte Bryant, 36 Ala. 270. Affirmed.

MCGIMPSEY v. STATE. (6 Div. 256.) (Court of Appeals of Alabama. April 8, 1924. Rehearing Denied May 13, 1924.)

1. Witnesses 357-Question to character witness properly sustained.

facts in the case. The court, in its oral charge, devoted much time and charged at length upon this phase of the case. We have seldom seen in a record an oral charge on this question more clear, and explicit, than here appears. Every right of the defendant under the law of self-defense was explained and emphasized, and every proposition of law set forth in the refused written charges is fully covered. Some of these charges assert correct propositions; but, as every such charge is fully covered in the oral charge, it will not be necessary to discuss them in detail.

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

[1] 1. Haden, a character witness for defendant, while being examined, was asked by the defendant:

"From the number of years you have known defendant, I will ask you to tell the jury whether or not you would believe Mr. McGimpsey on oath even though his liberty or his future welfare was at stake."

Objection to question to character witness for defense as to whether from number of years he had known defendant he would believe him on oath, even though his liberty or The court sustained objection to this ques. future welfare was at stake, was properly sustion, and defendant excepted. Defendant tained; general character or reputation not then offered to prove facts indicated in the being provable by personal or individual knowlquestion. General character or reputation edge of witness. cannot be shown by the personal or individual knowledge of the witness. Stone v. State, 208 Ala. 50, 93 South. 706.

2. Homicide 163(2)-On issue of character of deceased for peace and quiet, question as to general character held properly excluded. Where material inquiry in homicide case was as to character of deceased for peace and quiet, question, asked on cross-examination of character witness for state, as to whether he would consider man of good character who would marry common prostitute, was properly excluded; general character of deceased not being pertinent to issue.

Appeal from Circuit Court, Jefferson County; William E. Fort, Judge.

Ben McGimpsey was convicted of murder in the second degree, and appeals. Affirmed. Certiorari denied by Supreme Court in Ex parte McGimpsey, 100 South. 629.

John T. Glover, John W. Altman, J. K. Taylor, and W. A. McCall, all of Birmingham, for appellant.

Harwell G. Davis, Atty. Gen., Lamar Field, Asst. Atty. Gen., and Jim Davis, Sol., of Birmingham, for the State.

SAMFORD, J. The evidence was in direct conflict on all material points; that for the state tending to establish a case of murder, and that for the defendant tending to prove self-defense. The homicide took place in a road house owned and run by the defendant in Jefferson county, Ala.

The various written charges requested by defendant and refused by the court relate to the law of self-defense as applied to the

[2] 2. A line of questions by defendant's counsel to character witness on cross-examination is illustrated by the following: Allen was being examined by the state as to the character of deceased for peace and quiet. On cross-examination this witness asked:

was

"Would you consider a man of good character who would marry a whore or a common prostitute and take her to the home of his mother and introduce her to his mother, father, and sisters as his wife?"

The court sustained the state's objection to these questions when asked, and defendant excepted. A material inquiry in the case was the character of deceased for peace and quiet, as tending to shed light on the actions of both parties at the time of the difficulty. 8 Mich. Dig. 287 (169). The general character of deceased was not pertinent to the issue. The defendant could not be justified for killing a man of general bad character, nor would that fact tend to establish any pertinent inquiry touching the issue involved. The cases cited by appellant are not in point.

3. The discussion of the character of deceased after his death is not relevant. Character or reputation is made in life and death marks a period.

4. The question relative to the reputation of defendant's witness McDaniel is not of sufficient importance to affect the result one

Ex parte Ben McGIMPSEY. (6 Div. 182.) (Supreme Court of Alabama. June 5, 1924.)

Certiorari to Court of Appeals.

Certiorari denied by Supreme Court in Ex parte Glaze, 100 South. 630.

Hooton & Hooton, of Roanoke, and D. W. Jackson, of Lafayette, for appellant.

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

BRICKEN, P. J. The first count of the indictment, under which this defendant was convicted, charged that he did distill, make, or mixed liquors or beverages, a part of or manufacture alcoholic, spirituous, malted, which was alcohol, contrary to law.

During the trial of this case several objections were interposed, but no exceptions were

John W. Altman, of Birmingham, for peti- reserved to the rulings of the court, except tioner.

Harwell G. Davis, Atty. Gen., opposed.

PER CURIAM. Petition of Ben McGimpsey for certiorari to the Court of Appeals to review and revise the judgment and decision of said court in the case of McGimpsey v. State, 100 South. 628.

Writ denied.

ANDERSON, C. J., and SAYRE, NER, and MILLER, JJ., concur.

GLAZE v. STATE. (5 Div. 433.)

(Court of Appeals of Alabama. April 15, 1924. Rehearing Denied May 13, 1924.)

1. Intoxicating liquors

of beer containing alcohol held violation of statute.

Manufacture of beer containing alcohol held to violate statute prohibiting distilling, making, or manufacturing of alcoholic, spirituous, malted, or mixed liquors or beverages, a part of which is alcohol. 2. Intoxicating liquors.

held to make case for jury.

in one instance, and that exception is without merit.

But one question is presented: The refusal of the affirmative charge requested in writing by defendant.

[1, 2] The undisputed testimony in this case shows that the defendant was found by the state witness alone at a still in ChamGARD-bers county within the time covered by the 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 ripe. I drank some of it. It had alcohol in it." There was testimony showing that the officers were hidden near the still, which had been discovered by them, and, after waiting and watching for about two hours, they saw 137-Manufacture the defendant go to the still, coming from the direction of his home. That he carried to the still a lot of "kindling" in a sack, and also some empty containers, and that he was in the act of making a fire under the still when the officers approached and arrested him. These facts, together with others of similar import, we think, made a question for the determination of the jury, and under these facts the defendant was not entitled to the general affirmative charge. If the beer in question contained alcohol, and as to this proposition the evidence was not in conflict, and if the defendant made that beer, his acts in so doing came within the terms of the statute which prohibits the distilling, making, or manufacturng any alcoholic, spirituous, malted, or mixed liquors or beverages, any part of which is alcohol, and the terms of this statute are violated, if the liquor or beverage so made or manufactured contains alcohol, even though such liquor or beverage was not made by the process of distilling. It is sufficient if such liquor or beverage is made or manufactured in any manner, and the state is not required to show that such liquor or beverage, a part of which is alcohol, was actually distilled into whisky or other spirituous liquor or beverage. Floyd v. State, 18 Ala. App. 647, 94 South. 192.

238(1)—Evidence

In prosecution under indictment charging the distilling, making or manufacturing of alcoholic, spirituous, malted, or mixed liquors or beverages, a part of which was alcohol, evidefice held sufficient for submission of case to jury.

3. Criminal law 753 (2)-Defendant not entitled to directed verdict, where there was some evidence tending to prove him guilty under one count.

Where there was some testimony showing or tending to show defendant guilty under one count of indictment, court was not authorized to direct a verdict for defendant.

Samford, J., dissenting.

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

Troup Glaze was convicted of distilling, and he appeals. Affirmed.

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

dence could not be convicted of manufacturing a distilled liquor, and, if guilty, must be proceeded against under the third definition as set out in section 1, Acts 1915, p. 1, on a charge of fermenting or brewing a liquor or beverage.

[3] The defendant was present and alone at the still. There was testimony tending to show possession or ownership by defendant, and that he was exercising superintendence and control thereof. As to whether the testimony introduced upon the trial of this case 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- tained 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 would not that the fluid 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 manufac should never be given when there is any evi- 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 who asks it. Lee v. State, 18 Ala. App. 566, 93 South. 59; Anderson v. State, 18 Ala. App. 585, 93 South. 279.

Under the evidence the defendant might have been convicted of possessing a still, but of this charge he was acquitted. On another 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,

Ex parte Troup GLAZE. (5 Div. 895.) (Supreme Court of Alabama. June 12, 1924.) Certiorari to Court of Appeals.

Hooton & Hooton, of Roanoke, for petitioner.

Harwell G. Davis, Atty. Gen., opposed.

BOULDIN, J. Petition of Troup Glaze for certiorari to the Court of Appeals to review and revise the judgment and decision there rendered in the case of Glaze v. State, 100 South. 629.

Writ denied.

SAMFORD, J. (dissenting). It seems to me that the majority is in error in this case, in that they have assumed without sufficient proof that the "beer" or "mash" from which whisky is distilled is capable of being used for beverage purposes. As used in our statutes defining the term (Acts 1915, p. 1, § 1, and Acts 1919, p. 7, § 1), the word liquor is not used in that broad sense, which means any fluid or liquid, but is used in conjunction with the word beverage. Section 1, Acts 1915, begins: The term "prohibited liquors and beverages;" and throughout the entire system of laws enacted in this state the evident intent of the Legislature was to prohibit the manufacture of liquors capable of being used as a beverage. Extracts of various 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. Foster v. State, 36 Ark. 258; People v. Hawley, 3 Mich. 330; Tomkins County v. Taylor, 21 N. Y. 173; Moore v. State, 96 Tenn. 544, 35 S. W. 556; Malone v. State, (Tex. Cr. App,) 51 S. W. 381; Luther v. State. 83 Neb. 455, 120 N. W. 125, 20 L. R. A. (N. S.) 1146; 15 R. C. L. 248 (4). In Pennell v. State, 141 Wis. 35, 123 N. W. 115, it was held that the word "liquor" in a statute regulating or forbidding the sale of intoxicants means an alcoholic beverage. In Austin v. Shelton, 122 Tenn. 634, 127 S. W. 446, liquor is defined as being confined to beverages when used in prohibition statutes. To the same effect are the cases of Allen v. Carbonic Co., 170 Fed. 315, 95 C. C. A. 11. The defendant under the evi

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur,

DICKEY et al. v. STATE. (4 Div. 940.)

Evidence

(Court of Appeals of Alabama. April 15,
1924. Rehearing Denied May 13, 1924.)
Intoxicating liquors 236(19)
held to sustain conviction.
Evidence held to sustain a conviction of
one defendant for possessing a still.

Appeal from Circuit Court, Pike County; Arthur E. Gamble, Judge.

John and Jim Dickey were convicted of possessing a still, and appeal. Affirmed as to Jim Dickey; reversed and remanded as to John Dickey.

Certiorari denied by Supreme Court in Ex parte Dickey, (Ala. Sup.) 100 South. 631.

(100 So.)

FOSTER, J. Charles McAllister brought 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. Hairston. There was a trial before the court without a jury, and judgment was rendered in favor of the plaintiff for the lumber, or its alternate value of $485. From this judg ment the defendant appeals to this court.

The facts in this case are substantially as follows: J. T. F. Hairston and L. E. Loftis were interested together in cutting timber

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

other was his partner will be liable as such for the acts of the other if within the scope of the firm's business, although he was not consulted and may not have known of the transaction if one relying on the truth of such representation has been misled thereby to his prejudice. Alexander v. Handley, Reeves & Co., 96 Ala. 220, 11 South. 390; Alabama Fertilizer Co. v. Reynolds, 85 Ala. 19, 4 South. 639; Levy v. Alexander, 95 Ala. 101, 10 South. 394; Quarles v. Kendrick Mercantile Co., 16 Ala. App. 486, 79 South. 160.

[3] There was evidence upon which the court could find that the plaintiff, a stranger, was justified in dealing with Loftis and Hairston as partners under the name of Wahalak Lumber Company. The court found that there was such partnership. It follows that Loftis had the power to execute the bill of sale for the lumber in the name of the Wahalak Lumber Company giving the plaintiff the legal title thereto and the right to immediate possession of the lumber.

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 the teams and sawmill and to haul the logs to the mill and manufacture the same into lumber. The mill was about five miles from the Tombigee river, and Hairston was to pay $2 per thousand for hauling the lumber to the river. The balance of all expenses were to be borne equally between the parties, and they agreed to share the profits equally, though nothing was said about sharing losses. Another term of the contract was that Hairston was to furnish money to handle pay rolls. The plaintiff testified that Hairston on one occasion told him he appreciated the way he treated his partner (Loftis). The business was done under the name of the "Wahalak Lumber Company." The business progressed under the terms of this agreement for a time, but Hairston finally refused to furnish additional money for pay rolls, and there was evidence that he instructed Loftis to get the money where he could. Loftis then procured the money to handle certain pay rolls from the plaintiff and executed to him a bill of sale for the 108,000 feet of lumber in controversy, which lumber was stacked in the millyard and pointed out by Loftis to McAllister and constructive delivery made to him. Thereafter Reubin Dicks, the defendant, acting for Hairston, moved the lumber after having been warned by McAllister, and plaintiff then levied upon the same by a writ of detinue September 13, 1919; the property thereafter being replevied by Reubin Dicks. [1] Counsel for both plaintiff and defendant discuss at length the question of whether the facts of this case show that there was a partnership between Loftis and Hairston as a result of their agreement. But we think it is immaterial under the facts of this case whether or not the agreement between Loftis and Hairston constituted them partners inter sese. Whether they were partners inter sese must be determined by their intention as expressed in or may be gathered from the agreement between them and the circumstances attending its execution. Brooke v. Tucker, 149 Ala. 96, 43 South. 141; Couch v. Woodruff, 63 Ala. 466; Bestor v. Barker, 106 Ala. 240, 17 South. 389.

When the rights of third persons, who have dealt with parties associated in business, are involved, a partnership may arise by operation of law without an inquiry into, or in direct opposition to, the expressed intention of the parties. This is technically called a partnership by "estoppel." Couch v. Woodruff, 63 Ala. 466.

[4] The plaintiff, having a general and special interest in the lumber sued for with right to the immediate possession, had a right to maintain this action. Bank v. Barnes, 82 Ala. 607, 2 South, 349.

[5] This case was tried by the court without the intervention of a jury, there was conflicting testimony, and this court, in harmony with the decisions cited below, will not disturb the findings of fact by the lower court. L. E. Mutual Life & Accident Ass'n v. Hughes, 204 Ala. 492, 86 South. 19; Bickley v. Murdock, 204 Ala. 192, 85 South. 461; McSwean v. McSwean, 204 Ala. 663, 86 South. 646; Reed v. Banister, 202 Ala. 328, 80 South. 410; Grubbs v. Hawkins, 208 Ala. 349, 94 South. 484; Wright v. McAbee, 208 Ala. 404, 94 South. 732.

The rulings of the court on the evidence were not prejudicial to the rights of the defendant.

The judgment of the lower court is affirmed.

Affirmed.

Ex parte Reubin DICKS. (2 Div. 839.) (Supreme Court of Alabama, June 12, 1924.) Certiorari to Court of Appeals.

R. Percy Roach, of Mobile, for petitioner. Gray & Dansby, of Butler, and John S. Tilley, of Montgomery, opposed.

BOULDIN, J. Petition of Reubin Dicks for 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, 100 South. 631. selves out as partners, and thereby induce 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