going to headquarters, and see if he could interfere with me in that way. Then he said: 'What are you going to do that for? I can make that all right-fix it all right.' I asked if $50 would do it. He said: 'No, make it $100. Then I said I would see him next day. I left Burns at Fulton street, and started to go to headquarters. I met somebody on the way. I can't remember now who it was. I had a conversation with him with reference to the conversation I had had down town. Next day I met Burns. Then I gave him $50. I paid him two sums of $50. After that there were no further complaints." All this evidence was taken subject to the defendant's objection and exception.

On the cross-examination, the witness testified: "I do not mean that Captain McLaughlin made any demand on me for any money; nothing of the kind from him; no intimation of anything of the kind. The captain said merchants had been finding fault; that I was not to be allowed to scatter dirt upon the streets from my carts. I know it is a rule or ordinance here that carts are not permitted to drop dirt in the streets. I guess the captain meant to require me to obey the laws and ordinances in that respect. I did not see or observe anything showing that the captain had any knowledge of this demand that Burns made upon me. Burns did not ask me to pay anything for Captain McLaughlin. He did not mention his name in connection with it."

At the close of the people's case, the defendant moved to strike out this testimony. The motion was denied, and the defendant excepted. This evidence was also submitted to the jury as evidence bearing upon the question of a conspiracy or joint action between the defendant and Burns, and to show that, under section 29 of the Penal Code, the defendant was guilty of the crime charged in the indictment, although the money was not paid to him, but to Burns. The charge in that respect was excepted to, and there were many other exceptions to the admission of the evidence, and to the language employed by the judge in charging the jury upon this subject, which cannot be examined in detail within the proper limits of this opinion. It will be seen from an examination of the evidence set forth that the people was permitted, not only to show Burns' participation in these transactions, but also to prove other transactions between Seagrist and the defendant personally, all of which was admitted under the defendant's objections and exceptions.

The charge of the learned trial judge seems to indicate that he entertained the opinion that what he denominated "criminal agency" could be established in the same way, and by the same species of evidence, as may be employed in a civil action to establish the relation of principal and agent in favor of third persons. We think no such rule exists. We find no principle of criminal law which recognizes the relation of principal and agent in the sense in which the term is used in reference to business or commercial transactions. It is true that in civil actions upon contract the course of dealing between parties may be proved to establish a general agency, but that principle has no place in criminal jurisprudence. From such evidence in civil actions a presumption is rais-.

ed that the relation shown to exist in other transactions continues, or an estoppel is created which prevents the principal from denying the agency, and hence is presumptive or conclusive evidence of that fact. No such presumption or estoppel arises in a criminal case. There the presumption is of innocence, and the doctrine of estoppel has no application. Manifestly, this evidence was not admitted to prove guilty knowledge, intent, motive, or notice; nor did the transactions thus proved have any relation to or connection with the transaction upon which the indictment was based. They were entirely distinct and separate, had with other persons, at other times, under different circumstances, and constituted different crimes. They formed no link in the chain of circumstances or facts which led up to the transaction involved, and were no part of it. We think this evidence did not fall within any exception to the general rule, and was therefore improperly received. Without further discussion of this question, we are of the opinion that the evidence as to other transactions in the instances to which we have specially referred was improper, and that the court erred in admitting it, and charging the jury that it might take it into consideration in determining the guilt or innocence of the defendant.

VIII. Telephone Conversations

WESTERN UNION TELEGRAPH CO. v. SAUNDERS. (Supreme Court of Alabama, 1909.

164 Ala. 234, 51 South. 176, 137 Am. St. Rep. 35.)

Complaint was as follows: "Plaintiff claims of defendant $1,999.99 as damages, for that heretofore, to wit, on the 12th day of September, 1905, defendant was in the business of transmitting by wire from Birmingham, Alabama, to Ft. Payne, Alabama, and there delivering, telegraphic messages; that on said date plaintiff delivered to the defendant, at said Birmingham, a message addressed to Mrs. G. B. Cross, which message defendant received at said Birmingham, and for hire and reward paid by plaintiff agreed to use due diligence to promptly transmit and deliver said telegraphic message to Mrs. Cross at Ft. Payne, Alabama, which message read as follows: 'Baby worse, come at once; that it became and was the duty of defendant to use due diligence to promptly transmit and deliver said message to said Mrs. Cross, but, notwithstanding said duty, defendant so negligently conducted itself in that regard that said message was not delivered for a long time, to wit, for several hours, and as a proximate consequence thereof said Mrs. Cross, who was the mother of plaintiff's wife, and the grandmother of plaintiff's baby mentioned in said message, failed to come to Birmingham for a long time thereafter, and failed to be with

plaintiff and his family for a long time during the serious sickness of said baby, and plaintiff's said baby being very sick, and himself and wife greatly worried and anxious about said baby, plaintiff suffered great mental pain and anxiety on account of the absence of said Mrs. Cross and lost the sum of money, to wit, 25 cents, paid to the defendant for the transmission and delivery of said telegram, all to plaintiff's damage," etc.

EVANS, J.15

The evidence tended to show that K. D. Saunders, the plaintiff in the case, was on the 12th day of September, 1905, and had been for some time prior thereto, living in the city of Birmingham, Ala. At said date and for some time prior thereto his mother-in-law, Mrs. G. T. Cross, was living in Ft. Payne, Ala. At said date the said Saunders had a child about 10 months old, who for some time had been sick with typhoid pneumonia. The said Saunders was the father of the child, and the said Mrs. Cross was its grandmother. At some time prior to said 12th of September, plaintiff had communicated with his said mother-in-law by letter about coming to see the baby on receipt of a telegraphic message, if one was sent. On said morning of September 12th the said Mrs. Cross, in anticipation of such a message, had closed up her house and was sitting on the door- · steps, ready to go at a moment's notice. At 6:10 a. m. on September 12th, the baby having grown suddenly worse, the plaintiff went into the office of the paymaster of the Birmingham Pipe & Casting Company, of the city of Birmingham, and paid Mr. Stillwell, the paymaster in said office, the sum of 25 cents, and asked him to telephone to the defendant, the Western Union Telegraph Company, the following message to be transmitted and delivered to the said Mrs. G. T. Cross at Ft. Payne, Ala.: "Baby worse, come at once." The said Mr. Stillwell thereupon picked up the receiver of the telephone, and called a certain number, which witness, the plaintiff, did not know was the office number of defendant, and spoke into the phone the message to be transmitted and delivered to Mrs. G. T. Cross at Ft. Payne, Ala.: "Baby worse, come at once."

At 8:30 o'clock on the morning of September 12, 1905, the agent at Ft. Payne, Ala., received a message for Mrs. G. T. Cross and delivered the same to her son, who came for it, somewhere from 9:03 to 9:30 o'clock of said morning. The evidence further tended to show that by reason of the delay in transmitting and delivering said telegram Mrs. Cross missed the train on said morning and was delayed 14 or 16 hours in reaching the bedside of her grandchild. This telegram was introduced in evidence, but the bill of exceptions fails to state its contents. We will therefore presume that it was identical as to verbiage with the words spoken by Mr. Stillwell into the phone. It was shown that said telegram had the following written upon it: "1 B. M.; also, "Sent by K.," also, "received by R. A.;" also "5 pd."

15 A portion of the opinion is omitted.

These were explained by witness as follows: ""1 B. M.' was the call of office. 'Sent by K.,' that was a fellow by the name of Whitfield. ‘Received by R. A.,' Mr. Rippy, defendant's agent at Ft. Payne, signs 'R. A.' He is now sitting in the court room with defendant's counsel. 5 pd' means that the message contained five words and was paid-not to be collected for at the Ft. Payne office of defendant."

The first question to be considered is: Should the plaintiff, against the objection of defendant, have been allowed to testify, in his own behalf, as to what Mr. Stillwell did about telephoning for plaintiff; and should not that part of the evidence of plaintiff have been ruled out on motion of defendant? After a careful consideration of the proposition, a majority of the court are of opinion, and so decide, that the subsequent evidence of the delivery to the sendee of a message like the one said to have been spoken into the telephone by Mr. Stillwell made the said evidence of plaintiff admissible, and that the court below did not err in admitting the same, or refusing to rule it

CHARACTER

1

I. General Rule as to Exclusion of Character Evidence 1

NORRIS v. STEWART'S HEIRS.

(Supreme Court of North Carolina, 1890.

105 N. C. 455, 10 S. E. 912, 18 Am. St. Rep. 917.)

Action by W. B. Norris against N. S. Stewart, and, after his death pending suit, against his heirs and administrator, to set aside a deed as procured by fraud and undue influence. Judgment for plaintifï, and Norris' administrator appeals.

SHEPHERD, J.2 **2. The exception to the refusal of his honor to admit the testimony as to the good character of Stewart is likewise without merit. The action is brought by the heir at law of Amos Johnson for the purpose of setting aside a deed executed by him to Neill S. Stewart, the ancestor of the defendants, on the ground that said Stewart obtained the execution of the said conveyance by fraud and undue influence. There was testimony tending to sustain the allegations of the plaintiff; and the testimony as to character was offered to contradict such testimony, and for "general purposes." As a general rule, evidence of good general character is inadmissible by way of defense in civil actions, in which a party is charged with a specific fraud, because the character of every transaction must be ascertained from its own circumstances, and not from the character of the parties. Fowler v. Insurance Co., 6 Cow. 673, 16 Am. Dec. 460.

Such evidence is not admitted in civil actions unless the nature of the action involves the general character of the party, or goes directly to affect it. 1 Greenl. Ev. § 54; 1 Phil. Ev. (10th Ed.) 757; Church v. Drummond, 7 Ind. 17; Gutzwiller v. Lackman, 23 Mo. 168; Porter v. Seiler, 23 Pa. 424, 62 Am. Dec. 341; Ward v. Herndon, 5 Port. (Ala.) 382. In such a case, no matter how serious a moral delinquency may be involved in a fact, and how much the establishment of that fact may affect a party's reputation, he cannot invoke the aid of his previous reputation to disprove the fact, Smets v. Plunket, 1 Strob. 372. In civil cases, where the question of character is directly in issue, and material as to the amount of damages, as in seduction or slander, evidence of character is admitted. Wright v. McKee, 37 Vt. 161. The foregoing authorities, taken from the able and discriminating note of Mr. Freeman to the case of O'Bryan

1 For a discussion of principles, see McKelvey on Evidence (3d Ed.) § 121. 2 A portion of the opinion is omitted.