(100 So.) in uno, falsus in omnibus," it must appear, ers in Birmingham and turn them over to the from the evidence that the witness has will-local tradesman designated by plaintiff and fully sworn falsely to a material fact in the with whom it has a contract for the exclusive sale of the product in that territory. This There is no error in the record, and the local dealer fills the order, and the purchase judgment is affirmed. case. Affirmed. CITY OF BIRMINGHAM v. HOOVER SUC. Rehearing Denied May 13, 1924.) Commerce 40(1), 69-Foreign corporation's sale to retailer interstate commerce, but assisting retailer to resell goods domestic commerce, subject to municipal license tax. Where a foreign corporation sold machines to retail dealers, and employed salesmen who, pursuant to a contract between corporation and dealer, rendered service to the dealer, in making sales, held that, though the sale to the dealer was interstate commerce, the resale was domestic commerce, as to which the corporation was subject to a municipal license tax. Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge. price is paid to him by the purchaser. The salesman is not the employé of the dealer, although selling machines for him, but is the employé of plaintiff, rendering service to the dealer and selling goods for him as stipulated in the contract between the plaintiff and the dealer. As was said in the N. W. Consolidated Milling Company Case, supra: "Of course this is a domestic business-inducing one local merchant [customer] to buy a particular class of goods from another-and may be taxed by the state [city], regardless of the motive with which it is conducted." See Dalton Add. Machine Co. v. Va., 246 U. S. 498, 38 Sup. Ct. 361, 62 L. Ed. 854; Watters v. Michigan, 248 U. S. 65, 39 Sup. Ct. 29, 63 L. Ed. 129. The questions involved in this appeal do not turn upon the bona fides of the contract between plaintiff and the B. R., L. & P. Co., the local dealer, nor as to the title. Action by the Hoover Suction Sweeper local dealer. Neither is the question of the to the goods while in the possession of the Company against the City of Birmingham,number of sales involved. Under the evito recover license paid under protest. Judg-dence the plaintiff contracted with the local ment for plaintiff, and defendant appeals. dealer and rendered a local service in the sale of the plaintiff's products which, in the Reversed and rendered. W. J. Wynn and W. A. Jenkins, both of hands of the B. R., L. & P. Co., were not proBirmingham, for appellant. tected by the interstate commerce laws of the Tillman, Bradley & Baldwin, of Birming- United States. ham, for appellee. Under the evidence in this case the "Hoover salesmen," as they are called, were emSAMFORD, J. To our mind, the principles ployed and supervised by the plaintiff's "dis、 involved are not distinguishable from those trict manager of sales," they were paid for announced in Cheney Bros. Co. et al. v. Com. their services by plaintiff, were not a part of of Mass., 246 U. S. 147, 38 Sup. Ct. 295, 62 the organization of the B. R., L. & P. Co., L. Ed. 632, in the specific case of N. W. Con- their only duty being to resell for the B. R., solidated Milling, 246 U. S. 155, 38 Sup. Ct. L. & P. Co., plaintiff's dealer in Birmingham, 297, 62 L. Ed. 637. The plaintiff in the case all machines and attachments sold by plainat bar has its home office and operates a tiff to the B. R., L. & P. Co. as was the factory for the manufacture of its cleaning plaintiff's obligation under section 7 of its machines at Canton in the state of Ohio, contract. The sale of the machines to the and sells the product to retail dealers B. R., L. & P. Co. was interstate commerce. throughout the country. It has an office in Their resale by plaintiff through the "Hoover Birmingham, Ala., where it employs several salesmen" was domestic. It is manifest that salesmen for the purpose of inducing local if the right here insisted upon by counsel customers to purchase and use its machines. for appellee should obtain, "all lines of deThese salesmen were employed by and work- marcation between national and state aued under the direct supervision of plaintiff's thority would become obliterated." Browndistrict manager, whose office was in Bir-ing v. Waycross, 233 U. S. 16, 34 Sup. Ct. mingham, and the compensation for their 578, 58 L. Ed. 828. services was paid directly by plaintiff, although plaintiff recouped itself for such payment by a corresponding increase in the sales price of the machine to the dealer. The salesmen solicit and take orders from custom The court erred in its judgment. The judgment is reversed, and a judgment will here be rendered in favor of the defendant in the court below. Reversed and rendered. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes GREEN v. NuGRAPE CO. (6 Div. 368.) (Court of Appeals of Alabama. April 8, 1924. Rehearing Denied May 13, 1924.) 1. Appeal and error stated in the plea, moved that service be quashed. This motion was, on motion of plaintiff, stricken from the files. Whereupon Huey & Welch, as amicus curiæ, filed a motion to quash the service on Papas as agent, 920(1)-Appellate court etc., and for the withdrawal of the appearpresumes, where judgment rendered by de-ance of Saulsbury and for the withdrawal of fault, that trial court correctly ruled on pre- all pleadings filed by Saulsbury or themselliminary motions. ves on behalf of the NuGrape Company, and as grounds for said motion alleged a lack of authority on the part of Papas as agent, a mistaken employment of Saulsbury, and themselves as attorneys for NuGrape Company by Papas. Upon the hearing of this motion, as is recited in the judgment entry, the motion to quash service was overruled, Under Acts 1915, p. 607, when an officer and permission to withdraw appearance and executing service makes return that person to pleadings was granted, and by leave of the whom process is delivered is defendant corpo- court Huey & Welch were allowed to withration's agent, such return becomes prima facie draw all appearances, pleas, motion pleadevidence sufficient to sustain a default juag-ings and interrogatories. The judgment then The appellate court will presume to the point of entering judgment by default, in absence of evidence to contrary, that trial court correctly ruled on various preliminary motions. 2. Judgment 17(10)-Return under statute is prima facie evidence of service sufficient to sustain judgment by default. ment. 3. Appearance 27-Where appearance and pleadings have been filed under misapprehension, court may permit their withdrawal. Where it was disclosed to court that appearance and pleadings had been made and filed under a misapprehension, and without authority from defendant, court could permit their withdrawal. 4. Judgment 103-Judgment by default is proper against defendant in court by legal service but without appearance. A judgment by default is proper against a defendant in court by legal service but without appearance or other plea. 5. Judgment 150-Default judgment held set aside on plaintiff's motion for nonsuit. Where, on motion of plaintiff, a nonsuit was entered and judgment rendered discharging defendant after rendition of a default judgment against him, such action set aside the default judgment, and plaintiff was bound by it. recites: "On motion of plaintiff it is ordered and adjudged by the court that a judgment by default be rendered in favor of the plaintiff and against the defendant with leave to hereafter execute the writ of inquiry." To the point of entering judgment by default, we must presume, in the absence of evidence to the contrary, and none appears in the bill of exceptions, that the court correctly ruled on the various motions. As to the default judgment, prior to the act of the Legislature approved September 17, 1915, Acts 1915, p. 607, in order to sustain a judgment by default against a defendant corporation, it was necessary for the record to affirmatively show that proof was made to the court that the person on whom the process was served was at the time of the service such an officer or agent of defendant, as was by law authorized to receive service for and on behalf of defendant. Hoffman & Co. v. Ala. Distillery & Feeding Co., 124 Ala. 542, 27 South. 485. But, the act of the Legislature, supra, has changed that rule, and, when, as in this case, the officer executing the service makes return that the person to whom the process is delivered is the agent of defendant, such return becomes prima facie evidence sufficient to sustain a judgment by Farmers' State Bank, etc., v. Inman, 208 Ala. 281, 94 South. 105. Huey & Welch, of Bessemer, amicus curiæ. default. SAMFORD, J. [1, 2] In some respects this [3, 4] Upon it having been disclosed to the record presents a most novel situation. court that the appearance and pleadings had Plaintiff filed suit against the NuGrape Com- been made and filed under a misapprehenpany, a corporation, and service was had sion by the attorneys, Huey & Welch, and upon one Papas, as agent of the company. without authority from defendant, the court Within the time allowed by law demurrers had the undoubted authority to permit their were filed by Saulsbury as attorney for de- withdrawal. Summerlin v. Dowdle, 24 Ala. fendant. Subsequently Huey & Welch, as at-428. This left the defendant in court by letorneys for Papas, filed a special plea deny- gal service, but without appearance or other ing for Papas all connection with the Nu- plea. The practice in such case is a judgGrape Company, at the time of service and at ment by default and not nil dicit. 9 Mich. the time of trial, and, on the grounds as Dig. p. 54, IV. (100 So.) [5] Subsequent to the rendition of the title to the bonds in question, and therefore, judgment by default, on motion of plaintiff, if convicted at all, defendant should have a nonsuit was entered, and judgment render- been convicted of stealing $3,600 as charged ed discharging the defendant. This action of in another count of the indictment. If dethe court, having been taken at the instance fendant or his confederates sold and deliverof plaintiff, has the effect of setting aside the ed the bonds to Sanchez and afterwards judgment by default, and the plaintiff is they, or either of them, acting in concert or bound by it. as a part of a scheme, surreptitiously ex We find no reversible error in the record, changed worthless paper for the bonds, and and the judgment is affirmed. Affirmed. (6 Div. 204.) ECONOMU v. STATE. (Court of Appeals of Alabama. Jan. 15, 1924. Rehearing Denied Feb. 5, 1924.) Larceny 14(1)—Surreptitious exchange of worthless paper for bonds, sold and delivered to complaining witness, held to constitute "larceny." If defendant, or his confederates, acting in concert, or as part of scheme, surreptitiously exchanged worthless paper for United States bonds, previously sold and delivered by them to complaining witness, and took and carried the bonds away, depriving the owner of their use, each participant was guilty of larceny of the bonds; "larceny" being the felonious taking and carrying away of valuable personal property belonging to another. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Larceny.] Appeal from Circuit Court, Jefferson County; H. P. Heflin, Judge. George Economu was convicted of grand larceny, and appeals. Affirmed. Certiorari denied by Supreme Court in the case of Ex parte Economu, 100 South. 85. Black, Harris & Foster, and Nesmith & Garrison, all of Birmingham, for appellant. Harwell, G. Davis, Atty. Gen., and O. B. Cornelius, Asst. Atty. Gen., for the State. SAMFORD, J. There were five counts in the indictment, but all of these counts, except count 3, charging the larceny of 37 $100 United States bonds and 2 $50 United States bonds, were eliminated either by charges of the court or the verdict of the jury, which found the defendant guilty under count 3. There is but one question involved in this appeal: Was the defendant entitled to the general charge as to count 3? by this means took and carried the bonds away, depriving the owner of their use, this would be larceny and each participant in the scheme would be guilty. According to the evidence for the state the title to the bonds and the possession had passed to Sanchez; there was enough evidence from which the jury could fix a value, and the evidence, as to the guilt of defendant, was sufficient upon which to base a verdict. All the questions involved were properly presented to the jury. We find no error in the record, and the judgment is affirmed. Affirmed. Ex parte ECONOMU. (6 Div. 113.)、 (Supreme Court of Alabama. April 10, 1924. Rehearing Denied May 15, 1924.) 1. Criminal law 304(2) Court bound to know that par value of United States bonds sufficient to sustain grand larceny conviction. While courts will not judicially notice the exact market value of United States Victory loan bonds, when stolen they are bound to know that they are worth very close to their par value, and that such bonds, amounting to $3,800 par value, were worth more than enough to sustain conviction for grand larceny. One buying United States Victory bonds for his wife, with her money, was "bailee" so long as he retained custody, and in a prosecution for larceny ownership was properly laid in him. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Bailee.] Certiorari to Court of Appeals. Petition of George Economu for certiorari to the Court of Appeals to review and revise the judgment and decision of said court in the case of Economu v. State, 100 South. 85. Writ denied. Black, Harris & Foster and Nesmith & Garrison, all of Birmingham, for petitioner. Harwell G. Davis, Atty. Gen., opposed. Larceny is the felonious taking and carrying away personal property of value belonging to another. Were the 39 bonds, at the time they were taken by defendant and SOMERVILLE, J. The first count of the his confederates, the property of Sanchez? indictment charged the defendant with the Counsel for appellant cites many authorities larceny of $3,600 of money, and the third and draws some fine distinctions in order to count charged him with the larceny of $3,700 demonstrate that Sanchez never acquired par value of United States government bonds. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The evidence for the state tended to show that the defendant and two other men went to the store of Sanchez, the prosecutor, and there sold and delivered to him 37 $100 bonds of the description charged, and received from him $3,600 in money in payment therefor; that the package of bonds was thereafter at the same time and place-handled by defendant and one of the others severally; and that when they were about to go Sanchez called for the bonds, and one of the three handed him a package out of a grip, which when opened later contained nothing but worthless paper. The trial judge instructed the jury that they could not convict the defendant under both counts, and that his offense, if guilty at all, would depend on whether the transac tion was completed or not; that is, whether there was a delivery of the money to the defendant, or one of his associates, and a delivery of the bonds to Sanchez. The jury convicted the defendant under the third count-for larceny of the bonds, and on appeal the Court of Appeals held that under the evidence the conviction was proper, and that the general affirmative charge for defendant was properly refused. Defendant invokes this well-settled principle of law, viz.: "If a person, with a preconceived design to appropriate property to his own use, obtains possession of it by means of fraud or trickery, the taking under such circumstances amounts to larceny, because in such cases the fraud vitiates the transaction, and the owner is still deemed to retain a constructive possession of the property, and the conversion of it is a sufficient trespass, or, as is sometimes said, the fraud or trick practiced on the owner is equivalent to a trespass." 17 R. C. L. 13, The latter paragraph from Ruling Case Law states the principle which is clearly applicable here. If the case were that defendant had represented to Sanchez that he knew of bonds that could be bought at a discount, and, fraudulently designing to get from him the money for their ostensible purchase, had received the money for that purpose, and then intentionally converted it, as preconceived, to his own use, the principle invoked by counsel would be applicable. [1] The bonds in question were of the war issue known as Victory loan bonds, and, while courts will not take judicial notice of the exact market value of such bonds, they are bound to know, and do know, that they are worth very close to their par value; and that such bonds, amounting to $3,800 par value, were worth more than enough to sustain a conviction for grand larceny. [2] Sanchez, though not the owner of the bonds-having bought them with his wife's money, for her, was nevertheless a bailee or them so long as he retained their custody, and their ownership was properly laid in him. Viberg v. State, 138 Ala. 100, 107, 35 South. 53, 100 Am. St. Rep. 22; Fowler v. State, 100 Ala. 96, 14 South. 860. We find no error in the judgment of the Court of Appeals, and the writ will be denied. Writ denied. ANDERSON, O. J., and THOMAS and BOULDIN, JJ., concur. SWINEA V, STATE. (8 Div. 126.) 8 13, citing Frazier v. State, 85 Ala. 17, 4 (Court of Appeals of Alabama. April 8, 1924.) South. 691, 7 Am. St. Rep. 21; People v. Miller, 169 N. Y. 339, 62 N. E. 418, 88 Am. St. Rep. 546; Grunson v. State, 89 Ind. 533, 46 Am. Rep. 178, and many other cases. The bearing of that principle, however, is only upon the possession, where that is obtained by fraud. For "It is an established rule of the common law that, if the owner of goods alleged to have been stolen voluntarily parts with both the possession and the title to the alleged thief, not expecting the goods to be returned to him or to be disposed of in accordance with his directions, then neither the taking nor the conversion amounts to larceny, for in such a case there is an absence of the necessary trespass in the taking. This rule applies even where the owner is induced to part with the title through the fraud and misrepresentation of the alleged thief. In such cases the crime committed may be obtaining property by false pretenses." 17 R. C. L. 14, § 14, citing People v. Tompkins, 186 N. Y. 413, 79 N. E. 326, 12 L. R. A. (N. S.) 1081; Williams v. State, 165 Ind. 472, 75 N. E. 875, 2 L. R. A. (N. S.) 248, and many Appeal from Circuit Court, Lauderdale County; Chas. P. Almon, Judge. G. W. Swinea was convicted of possessing a still, and appeals. Affirmed. Petition for certiorari dismissed by Supreme Court in Ex parte Swinea, 100 South. 87. Simpson & Simpson, of Florence, for appellant. Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State. SAMFORD, J. It would serve no good purpose to set out the evidence in this case. Suffice it to say we have considered the evidence en banc and reach the conclusion that there was sufficient evidence upon which to base a verdict of guilt. The proposition of law embraced in charge A1, was covered by charge A2. Moreover the charge is argumentative. Charge H is, to say the least, confusing. Whether this is so or not the refusal of this charge alone, even if error, would not justify a reversal. The defendants had the benefit of a full charge from the court covering the law in (100 So.) some of which, in other phraseology, stated the | 3. Criminal law ✪~822(1)—Court's oral charge principle involved in this charge. There is no reversible error in the record. Let the judgment be affirmed. Affirmed. Ex parte SWINEA. SWINEA v. STATE. (8 Div. 663.) (Supreme Court of Alabama. May 1, 1924.) Criminal law 1071-Petition for certiorari must show application for, and denial of, motion for rehearing in Court of Appeals. Under Supreme Court rule 42 (198 Ala. xiv), petition for writ of certiorari to review decision of Court of Appeals must show that application for rehearing was made to, and denied by, such court. Certiorari to Court of Appeals. G. W. Swinea petitions for certiorari to the Court of Appeals to review and revise the judgment and decision there rendered in the case styled Swinea v. State, 100 South. 86. Petition dismissed. taken as whole. Court's oral charge must be taken as a whole. 4. Criminal law 789 (9)-Oral charge on reasonable doubt held not error; "fixed"; "conviction"; "fixed conviction of guilt arising out of evidence." Court's oral charge, as restated after exception, that if jury, after considering all the evidence, had fixed conviction of defendant's guilt arising out of evidence, there was no reasonable doubt, held not error; "fixed" meaning "of established, unchanging, permanent character, settled, lasting," and "conviction" meaning "state of being convinced, firm belief founded on evidence," so that "fixed conviction of guilt arising out of evidence" is established, unchanging belief founded on evidence and equivalent of belief from evidence beyond reasonable doubt of defendant's guilt. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Convicted-Conviction; Fixed.] Appeal from Circuit Court, Fayette County; R. L. Blanton, Judge. Louis Youngblood was convicted of violating the Prohibition Law, and appeals. Simpson & Simpson, of Florence, for peti- Affirmed. tioner. Harwell G. Davis, Atty. Gen., opposed. GARDNER, J. Petition for writ of certiorari to review the decision of the Court of Appeals in the case of G. W. Swinea v. State, 100 South. 86. The petition does not disclose that an application for rehearing had been made to said Court of Appeals and such application denied. This is required as a condition precedent to a consideration of the petition here under the provisions of Supreme Court Rule 42, as amended and as set out in 198 Ala. xiv. The petition is dismissed. ANDERSON, C. J., and SAYRE and MILLER, JJ., concur. YOUNGBLOOD v. STATE. (6 Div. 287.) (Court of Appeals of Alabama. Jan. 22, 1924. Rehearing Denied Feb. 5, 1924.) 1. Witnesses 240 (2)-Permission of leading questions in sound discretion of judge. Permission of leading questions is in sound discretion of trial judge. 2. Criminal law 561 (1)—“Reasonable doubt" defined. Certiorari denied by Supreme Court in Ex parte Youngblood, 100 South. 88. S. T. Wright and J. M. Hawkins, both of FOSTER, J. The appellant was convicted for manufacturing prohibited liquors. [1] It was not error for the court to permit the solicitor for the state to ask the state's witness White, "Are you absolutely positive that you saw Louis Youngblood there [at the still]?" The permission of leading questions is in the sound discretion of the trial judge. [2] Exception was reserved to the following portion of the court's oral charge: "A reasonable doubt, gentlemen, is what that term implies, a doubt for which there exists a reason to be found in the evidence, or due to the lack of sufficient evidence to satisfy you beyond a reasonable doubt. It is not a mere speculative doubt, or a mere possible doubt, but it is a substantial doubt-a reasonable doubt." In In Ray v. State, 50 Ala. 104, the definition of a "reasonable doubt" as one "for which a reason can be given" was held to be calculated to confuse and mislead the jury, and it was held that a charge thus defining a reasonable doubt was properly refused. Cohen v. State, 50 Ala. 108, the court held that a similar charge asserts a correct legal proposition, and its refusal was error. In Avery v. State, 124 Ala. 20, 27 South. 505, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "Reasonable doubt" is doubt for which there is reason found in evidence. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Reasonable Doubt.] |