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BRICKEN, P. J. The prosecution against | 2. Criminal law Om 829(1)-Refusal to give this appellant originated in the county court charge covered by charges given not error, of Clay county, and the affidavit or complaint Refusal to give a requested charge, which charged the offense of assault and battery was covered by charges given, held not error. with a stick upon one J. F. Bradford.

3. Criminal law Ow782(13)-Charge authoriz. [1, 2] The appeal here purports to be from ing acquittal, if facts reconcilable with guilt a judgment of conviction in the circuit court of another, held properly refused, as mislead. but, as insisted by appellant, there is noth- ing, under evidence. ing in this record to show how the circuit Requested charge that if the facts, no matcourt acquired jurisdiction of this case. Sec- ter how strong, could be reconciled with guilt tion 6726 of the Code of 1907 provides the of some other person, then aceused's guilt was statutory method and process necessary, on not shown sufficiently, held properly refused, as appeal from county court, to transfer a case misleading under the evidence; such charge and to give to the circuit court jurisdiction being proper only when the evidence is circum

stantial, with tendencies pointing to another thereof; and in the case of Hall v. State as the guilty party, to the exclusion of ac(Ala. App.) 95 South, 905, this court, follow-cused. ing said statute, stated in detail what were

4. Criminal law 778(4)-Charge as to relatho ht to be the necessary requirements to

tive weight of presumptions held properly rethis end. And in McLosky v. State, 98 South.

fused as argumentative. 706 (on rehearing), this court followed the

A requested charge that the presumption of Hall Case on this question. But in Ex parte innocence of accused was stronger than the State ex rel. Attorney General, re McLosky presumption of possession by reason of whisky v. State, 98 South 708, the statute in question being found in the pasture, held properly re(section 6726) was in effect emasculated and fused as argumentative. held to mean nothing, and it was held that the recitals in an appeal bond suffice to give

On Rehearing. the circuit court jurisdiction, notwithstand- 5. Criminal law may 1087(1)-Absence of suffiing a failure of the county judge to make cient appeal bond, or transcript, held to rethe statement as required by the statute. quire reversal. The following excerpt of that opinion is not Absence from the record of a sufficient apquite clear to the writer:

peal bond, or transcript, of the proceedings in

the county court where the prosecution orig. "We recognize that the circuit court does not

inated, held to require a reversal. acquire jurisdiction by the execution of an appeal bond, for such bond is not a condition precedent to an appeal; but the recitals of the

Appeal from Circuit Court, Winston Counappeal bond suffice to show the trial and con- ty; R. L. Blanton, Judge. viction of the defendant in the county court, Jack Nix was convicted of violating the and his appeal from a conviction to the circuit prohibition law, and appeals. Reversed and court, thereby giving to the latter jurisdiction

remanded on rehearing. of the cause.'

These charges were refused to defendant: The conclusion, however, is clear, and under the statute (Acts 1911, p. 95, $ 10), this

“(8) The humane provision of the law is:

That there should not be a conviction upon court must conform its holding thereto. However, in the instant case, the record excludes every other reasonable hypothesis

the evidence, unless to a moral certainty it contains no transcript by the county judge, than that of the guilt of the accused. No mat. and the clerk certifies that none was made. ter how strong may be the facts, if they can Nor does the record contain an appeal bond. be reconciled with the theory that some other This results, of course, that no jurisdiction person may have done the act, then the guilt was conferred upon the circuit court from of the accused is not shown by that full measany source. The appearance bond contained ure of proof which the law requires." in the record has no recitals of any trial or

"(11) The court charges the jury that the conviction in the county court, and makes presumption of innocence which surrounds the

defendant is stronger than the presumption no reference to any appeal having been taken of possession by reason of the whisky being in this case.

found in an open cow pasture." The cause is reversed and remanded. Reversed and remanded.

Curtis, Pennington & Pou, of Jasper, for appellant.

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

NIX V. STATE. (6 Div. 506.)

SAMFORD, J. [1] Prior to the prosecu(Court of Appeals of Alabama. June 10, 1924. tion, and within the statutes of limitation, On Rehearing, June 24, 1924.)

and in the county of Winston, there was 1. Intoxicating liquors w238(1) Evidence

found buried in defendant's pasture, and in held sufficient for jury on question of posses. 75 yards of his residence, 18 gallons of whission.

ky. The place where the wbisky was found Evidence held sufficient to go to jury on

was in plain view of defendant's house, near question of possession of probibited liquors. defendant's cow barn, and the place where

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case.

(100 So.) the whisky was buried was covered with liquor, that "he was going to stop it if it took brush. The whisky appeared to have been a killing to do it,” held hearsay, and inadmisburied four or five months, and when it was sible as introducing an immaterial issue prejufound by the officers the defendant was pres- dicial to defendant's case, and having no tenent. He then and there said to the officers: dency to show a threat toward deceased. “What would you take to settle this right 3. Criminal law Om 1169(1)-Testimony as to here?" He further said: "I've got the mon movements of defendant's witness held not ey." He then asked the officers for a drink prejudicial. of the whisky, and, on being refused, asked In homicide case, admission of irrelevant for the jugs.

testimony that defendant's witness had come [2, 3] Charge 8 refused to defendant is cov to place involved a week or so prior to trial, ered by given charge 2 and charge unnum- with other people, in “cars," not shown in any bered, which, we mark 442. But this charge way connected with defendant, held not preju

dicial, as applied to the facts of this case is misleading. For this charge to be proper in any 4. Witnesses On 317(4)-That state's witness case the evidence must be circumstantial, was gambling elsewhere at time of shooting with tendencies pointing to another as the

was material to discredit him, guilty party to the exclusion of defendant. That state's witness, who testified he was Ex parte Bud Hill (Ala. Sup.) 100 South. present, was elsewhere when the shooting oc315.

curred, and engaged in gambling, was material

to discredit his testimony as to number of shots [4] Charge 11 is an argument. The true

fired. rule sought to be invoked by charge 11 will be found in Oldacre's Case, 16 Ala. App. 151, 5. Homicide new 188(1)-Proof of deceased's 75 South. 827; Maisel's Case, 17 Ala. App.

reputation as "overbearing” held admissible. 12, 81 South. 348.

Proof of deceased's general reputation as The facts, as testified to by the state's wit- an "overbearing" man held admissible to illusnesses, were sufficient to make this a jury trate the circumstances of the killing and We find no error in the record, and qualify and give point to uncommunicated

threats, as also deceased's conduct at time of the judgment is affirmed.

killing, and its exclusion was not cured by Affirmed.

court's question whether witness knew deOn Rehearing.

ceased's reputation as being peaceable and

quiet, or violent and dangerous, etc., omitting [5] It is now called to our attention that "overbearing.” the record contains no sufficient appeal bond, or transcript of the proceedings in the coun- 6. Homicide Omal92–Testimony of company ty court, where this prosecution originated.

manager that he had instructed deceased to It follows that the rehearing must be grant

co-operate with defendant, a deputy sheriff,

held admissible.
ed. Ford v. State (7 Div. 946; Ala. App.)
100 South, 917.

In prosecution against a deputy sheriff of a

mining company for shooting superintendent Rehearing granted. The judgment is re- after refusal to leave a negro dance hall, testiversed, and the cause is remanded.

mony of the company's manager that he had instructed deceased to co-operate with defendant in keeping white men away from the hall, and told him that he had so instructed defend

ant, held admissible to show relation of the parSAVAGE V. STATE. (6 Div. 365.)

ties, and which provoked the difficulty. (Court of Appeals of Alabama. June 10, 1924. 7. Homicide ww163 (1)-Whether deceased had Rehearing Denied June 24, 1924.)

had previous difficulty held irrelevant.

In homicide prosecution, whether deceased 1. Homicide Om276—Questions as to fault, had ever had previous trouble held irrelevant.

possibility of retreat, and necessity to shoot,
held for jury.

8. Witnesses mo 277(2)-Cross-question whethIn homicide case, where testimony as to

er defendant deputy sheriff had reported dewhether deceased or defendant provoked the

ceased's violation of prohibition law testified

to held proper, shooting was conflicting, question of who was at fault, whether defendant could have re In homicide case, when defendant, a deputreated without increasing his danger, and ty sheriff, testified that he had found deceased, whether it was necessary to fire when he did, on former occasion, violating the prohibition held for the jury.

law, cross-question whether he had reported it

to the sheriff was proper.
2. Criminal law 419, 420(1)-Homicide Om

158(1)-Statements of defendant held inad- 9. Criminal law Ow720(5)—State's attorney's
missible as hearsay, and as not showing statement held not reversible error.
threat.

State's attorney's statement in argument In homicide case, remarks of defendant, that “one could go down the road and get a who was deputy sheriff for a mining company, petition that a man's character is good, when 40 minutes before the shooting, concerning de- his soul is as black as Hades,” while not arguceased's failure to help to stop handling of I ment, held not reversible error.

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10. Homicide Om77—"Manslaughter in first de- | defendant coming from the well, defendant gree" defined.

stopped, and he and witness talked about "Manslaughter in first degree" is unlawful some boys doing some shooting at the barber killing of a human being, but without malice, shop, and defendant said he was going to either express or implied.

stop it. Upon being pressed to state the ex[Ed. Note.-For other definitions, see Words act language used by defendant he answered: and Phrases, First and Second Series, Man. "He said they had the wrong

Gdslaughter in First Degree.)

man running it, and he was going to stop it Appeal from Circuit Court, Walker Coun- made to exclude this answer, which was over.

if it took a killing to do it.” Motion was ty; R. L. Blanton, Judge.

ruled and exception reserved. Continuing Freeman Savage was convicted of man- witness stated, “In the afternoon there had slaughter in the first degree, and appeals. been a shooting in the barber shop." WitReversed and remanded.

ness was then asked by the solicitor to tell In the oral charge, the court instructed what he (defendant) said. There were obin part as follows:

jection and exception to this question and rul"Manslaughter in the first degree is the un- ing thereon. Witness, continuing, said: "He lawful killing of a human being, but without went on to tell about Mr. Davidson wouldn't malice, either expressed or implied. The un- help him do anything or stop any of the lawful killing of a human being--no malice." liquor that the boys was drinking around

there." W. C. Davis, of Jasper, for appellant.

At this point the court began to

ask questions of the witness, to which he reHarwell G. Davis, Atty. Gen., Lamar Field, plied: “Well, he just said Mr. Davidson Asst. Atty. Gen., and Curtis, Pennington & wouldn't help him do anything with the Pou, of Jasper, for appellee.

liquor, and he said he was going to stop it if

it took a killing to do it. He didn't state for SAMFORD, J. Both the defendant and sure what it was. When he used these rethe deceased were employed by the Corona marks he was talking about Mr. Davidson Coal Company, the deceased serving that and the whisky-about some one handling company in the capacity of superintendent, liquor around there. The boys, I reckon, that and the defendant being deputized as a dep- had been drinking and shooting in the barber uty sheriff for the purpose of rendering any shop. He said Mr. Davidson was good about service which might be necessary around everything except liquor, and he wouldn't the mining camp along the line of duties take no hand in it, and he was going to stop ordinarily performed by such officers.

it if it took a killing to do it, and they had [1] On Saturday night of the killing the the wrong Gd- man running it." deceased superintendent, a party by the name There were proper objections to the quesof Troy Hall, who was with the deceased and tions, motions to exclude the answers, and several others, went to a negro dance hall on exceptions in each instance, duly and legally the property of the coal company, and, after reserved. The foregoing testimony is hearthey reached there the defendant came up, or- say and inadmissible. There is no tendency dered them to leave, and an argument en- of a threat towards deceased; it sheds no sued between the defendant and the deceased light on the issues involved in this case. Its about the presence of Troy Hall at the dance only effect would be to prejudice the defendhall. The deceased stated that Hall came ant's case before the jury by the introducthere with him, and the defendant took the tion of an immaterial issue, in no way related position that it made no difference whom to the homicide here charged. Stokes Y. he was with nor whom he came with, that State, 17 Ala. App. 27, 81 South. 363; George all of them would have to leave. During the v. State, 145 Ala. 41, 40 South, 961, 117 Am. course of this argument the shooting took St. Rep. 17. place, and, according to the testimony of the The statement of the language said to state's witnesses, the defendant provoked have been used by defendant to Corneleus a difficulty and fired upon the deceased with is not susceptible of being construed into a out any overt act on the part of the deceased, threat against Davidson, the deceased. The while the testimony of the defendant is di- court was in error in its several rulings rectly to the contrary. It was therefore a and on this question. case in which the jury had to determine who A proper predicate was laid for a dying was at fault in provoking the difficulty, and declaration, and, therefore, if one was made, whether the defendant could have retreated it was admissible as evidence, provided the without increasing his danger, and whether statement itself was relevant. There was no it was necessary for him to fire upon the motion to exclude that part of the dying deceased when he did.

declaration, which, under some of our deci. [2] During the examination of Corneleus, a sions, would doubtless have been excluded witness for the state, he testified that about on motions. 40 minutes before the fatal shooting he saw [3] Whether Tom Lipscomb, a defendant's.

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(100 So.) witness, had come to Jasper "a week or so", ing white people away from this negro dance before the trial in company with other peo- hall, at the same time telling deceased that ple, in "cars," not shown in any way con- he had so instructed defendant. The court nected with defendant, while irrelevant, is refused to permit this evidence, and defendnot error of such nature as would authorize ant excepted. This evidence would have a reversal.

shown a modification of the authority of de[4] The fact that Tom Lipscomb, a state's ceased as superintendent of the mines, and witness, was at another place than that testi- certainly was relevant to show the relative fied to by him at the time of the shooting, positions of the parties, at the time of the and at such place was engaged in gambling, fatal difficulty, as related to the question of would be material as tending to discredit the who provoked the difficulty. If at the testimony given by Lipscomb as to the num- time of the difficulty defendant was in ber of shots fired, he having testified that he superior, control as to whether white men was in the dance hall at the time of the should remain at a negro dance, it was the shooting.

duty of deceased not to interfere with him in [5] The defendant sought to prove the gen- the discharge of that duty. This evidence eral reputation of the deceased, “as to wheth- might have much weight with the jury in er he was a peaceful or overbearing man." determining one of the main issues in the This the court refused to allow. In Roberts case, to wit, who was at fault in bringing on v. State, 68 Ala. 156, such evidence is held the difficulty. always to be admissible where uncommuni [7] Whether deceased had ever had any cated threats are received, and for the like trouble before this difficulty was not relevant purpose of illustrating the circumstances of to any issue in this case. the killing, and of qualifying and giving Questions asked defendant's witness Powpoint to such threats, as also the conduct ell on cross-examination were properly al. of the deceased at the time of the killing. | lowed. Much latitude is allowed on crossRoberts Case, supra; Eiland v. State, 52 Ala. examination, and in this instance were well 323; Bowles v. State, 58 Ala. 335; Fields within the bounds. V. State, 47 Ala. 603, 11 Am. Rep. 771. The The details of the conversation between the court sought to correct this error by himself, defendant's witness Lollar and deceased were asking the witness the question, if he, the not admissible, and were properly excluded. witness, knew the reputation of deceased 1 Mayfield Dig. 331 (16). as being a peaceable, quiet man, or whether [8] On cross-examination of defendant, afthe was violent, dangerous, or bloodthirsty. er defendant had testified that he had on forThis question omitted the quality of “over- mer occasion found deceased violating the probearing” included in the definition in the hibition law, it was within the bounds of fair Roberts Case, supra, and to which defend-cross-examination for the solicitor to ask ant was entitled. The Roberts Case has him if he reported this to the sheriff. never been overruled or modified so far as [9] The statement of the solicitor in his we know, and the Attorney General, cites argument that, "one could go down the road us no authority to the contrary. As to this and get a petition that a man's character proposition the trial court was in error. is good when his soul is as black as Hades,"

[6] The dance hall at which this homicide while not argument, is not reversible error. took place was located in the camp of the Bridgeforth v. State, 16 Ala. App. 584, 80 Corona Coal Company, located at Patton, of South. 158. which the deceased was the local superinten The question of malice is not involved in dent, and defendant was a deputy sheriff, the judgment appealed from, hence we do holding a regular commission, whose special not pass on the several charges involving duties, so far as the Corona Coal Company, malice. was concerned, were to preserve law and or [10] The court's definition of manslaughter der in the camp. The general manager of the is sustained by authority. Ragland v. State, company, and superior in authority to both 125 Ala. 30, 27 South, 983; Langston v. State, deceased and defendant, was G. M. Powell, 16 Ala. App. 123, 75 South. 715; Thomas v. who fixed by his orders the general and spe- State, 139 Ala. 83, 36 South, 734. cial duties both as to deceased and defend Other questions presented will not likely ant. · Powell was being examined as a wit- arise on another trial. ness by defendant, who sought to prove by For the errors pointed out, let the judghim that he, as manager, had instructed de- ment be reversed and the cause remanded. ceased to co-operate with defendant in keep Reversed and remanded,

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his possession of, any part of the still is BERRY V. STATE. (7 Div. 16.) prima facie evidence that he is in possession

of the whole still. A defendant may not be (Court of Appeals of Alabama. June 24, 1924.) convicted for possessing a still worm, or a 1. Intoxicating liquors Om236(1)-Liquor cas. still cap, or a thumper keg, but if he is found es tried upon same rules of evidence and to be in possession of either the one or the law as other crimes.

other and that, when connected, it is suitCases involving violations of prohibition able for making whisky, such fact, when statutes are tried upon the same rules of evi- proven beyond a reasonable doubt, is prima dence and rules of law as obtain in other crim- facie evidence that he is in possession of the inal statutes.

completed outfit, the possession of which is 2. Criminal law Oml 159(2)-Verdict not dis. condemned by section 1 of the same act.

turbed, where evidence justifies finding of Edwards v. State (Ala. App.) 95 South. 560; guilt.

Reeves v. State (Ala. App.) 95 South. 203; Where there is evidence from which an Gamble v. State (Ala. App.) 95 South. 202. inference of guilt can be fairly drawn, and ju- [4] If a still is found, whether on defendry so finds, the verdict will not be disturbed.

ant's premises or not, and it is proven be3. Intoxicating liquors On 236(19)-Possession yond a reasonable doubt that the defendant

of part of still is prima facie evidence of pos- was present, exercising acts of dominion session of whole.

over it, the jury is warranted in the inferWhile conyiction for unlawful 'possession ence that he had the possession. of a still may not be had, unless defendant is

We find no error in the record, and the in possession of a complete still, his posses- judgment is affirmed. sion of a still worm, cap, or thumper keg, etc.,

Affirmed, is prima facie evidence of possession of the whole, within Gen. Acts 1919, p. 1086, § 2. 4. Intoxicating liquors Om236(19)-Finding of

still, and defendant exercising dominion over MEMORANDUM DECISIONS. it, justifies finding of possession.

Proof that a still was found, whether on defendant's premises or not, and, beyond reasonable doubt, that defendant was present exer

AMERICAN INS. CO. v. Maye NEWBERcising acts of dominion over it, justifies jury RY. (3 Div. 666.) (Supreme Court of Alafinding that defendant had possession within bama. May 29, 1924. Rehearing Denied June Gen. Acts 1919, p. 1086.

30, 1924.) Appeal from Circuit Court, Mont

gomery County; Leon McCord, Judge. RushAppeal from Circuit Court, De Kalb Coun- ton, Crenshaw & Rushton, of Montgomery, for ty; W. W. Haralson, Judge.

appellant. Hill, Hill, Whiting, Thomas & Rives,

of Montgomery, for appellee. Dolph Berry was indicted under two

PER CURIAM. All justices concur in the counts, charging the manufacture of prohibit- conclusion that the trial court properly refused ed liquors and the possession of a still. the general charge requested by the defendant. From a general verdict of guilty, he appeals. A majority of the court, however, composed of Affirmed,

SAYRE, GARDNER, MILLER, and BOUL J. V. Curtis, of Ft. Payne, for appellant.

DIN, JJ., hold that the trial court erred in not Harwell G. Davis, Atty. Gen., for the granting the plaintiff a new trial because the

verdict was contrary to the great weight of State.

the evidence, and the judgment of the circuit

court is reversed, and the cause is remanded. SAMFORD, J. [1, 2] It is the law, as Reversed and remanded. stated in Moon's Case, 95 South. 830, and

ANI)ERSON, C. J., and SOMERVILLE and many other adjudications by this court, that THOMAS, JJ., dissent. cases involving a violation of prohibition statutes are to be tried upon the same rules of evidence as obtain in other criminal stat- BANK OF LUVERNE V. J. Claude REDutes. This rule obtains also with reference DOCH et al. (4 Div. 94.) (Supreme Court of to other rules of law governing criminal Alabama. May 22, 1924.) Appeal from Cir. trials. One of these is, where there is evi- cuit Court, Crenshaw County; Arthur E. Gamdence from which an inference can fairly ble, Judge. Frank B. Bricken, of Luverne, be drawn that the defendant is guilty, and and Powell & Hamilton, of Greenville, for apthe jury so finds, the verdict will not be dis

pellant. James J. Mayfield, of Montgomery,

for appellees. turbed on appeal. Gidley v. State (Ala. App.)

PER CURIAM. This is the second appeal in 97 South. 170. [3] Another rule of law which this court was taken conformed to the opinion of the court

this case, and the decree from which this appeal has often stated is that section 2, Acts 1919, 207 Ala. 297, 92 South. 848, 25 A, L. R. 381. p. 1086, establishes a rule of evidence, and, This appeal, therefore, involves the soundness while a conviction may not be had unless the of said opinion, and is in the nature of a second defendant is in possession of a complete still, application for rehearing. The former appeal

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