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(102 So.) pellee. 'Res ipsa loquitor.' There being no reference to all children. When the jury learn. explanation of this fact, other than that shown ed from the evidence that he had suffered a seby the evidence introduced by plaintiff, which rious injury, by his foot being caught between was to the effect that the plant of the city was the fixed rail of the road-bed and the turning out of repair, appellant was entitled to recover, rail of the table, they were justified in believing unless the jury believed that he was guilty of, that there was a probability of the occurrence and chargeable with, contributory negligence." of such accidents.”

At the present time by statute of this state contributory negligence is not a defense, but

It was the electricity in the feed wire that only goes to minimize the recovery. The in- attracted the curiosity of the boys. It was jured boy in that case was 10 or 12 years old this current of electricity exposed to the when he received the injury, and the court ptouch and situated as it was in trees, which held that the plaintiff should have been pre- boys would naturally be expected to climb, sumed incapable of contributory negligence, and of whose propensities or habits persons unless the presumption were rebutted by evi- of ordinary intelligence would have knowldence; he should not be held to the same de- edge, that prompted these boys to attach the gree of care required of adults under like cir- wire thereto for the purpose of conveying this cumstances, but only to such care as he was electric current so negligently exposed and capable of exercising considering his age, ex- situated to the plaintiff in this case who was perience, knowledge, and intelligence, and injured. These children did not have knowlevidence to rebut the presumption presents a edge of the dangers of electricity and of the question of fact for the jury.

use of it which would enable them to appreIn McTighe, etc., v. Johnson, 114 Miss. 862, ciate and understand its harmful effects. 75 So. 600, which was a suit for damages for The defendant however knew, or should have an injury caused by the explosion of dyna-known, that it was likely to cause injury mite in which a child of tender years was when thus situated and exposed. It was the injured, the court held that a person using electricity in the wire, and not the wire itdynamite has to use the highest degree of self, that constituted the danger, and it was care and that the defendant in that case was this electricity which the boys sought to con. liable for an injury caused to a child who vey from the feed wire to the plaintiff for found dynamite caps left in an outhouse by the purpose of shocking the plaintiff. The the servants of the defendant which the child deadly agent of electricity was at the place finding the said caps turned over to his sis- where the injury occurred partly through the ter, who was injured and who caused the ex- negligence of the defendant. Its negligent plosion by manipulating the cap with a hair transmission under the circumstances was a pin. In that case it was held that a person contributing cause of the injury. The act leaving dynamite unguarded in a vacant of the boys who attached the wire was not house should anticipate that the house would the sole cause of the injury. It is true that be reoccupied by some one, and if reoccupied this particular injury would not have happenthat small children would be there to play ed had the boys not attached the wire to the in and about the premises and that such feed wire, but it is also true that the injury dynamite might result in injuring them.

would not have happened but for the negli[2] Applying these principles laid down in gence of the defendant in having an uninthese cases, we think that the defendant sulated exposed wire situated like the one could have anticipated that an injury would here involved was. So in our opinion the act have occurred from such exposed wire carry of the boys was not an independent, efficient, ing a large voltage of electricity passing intervening cause. The boys here were below through trees near the playground of the the age of 14 years, and incapable of fully apschool building. It is not necessary that preciating the dangers of the wire and of the particular injury should be anticipated, playing with it. But the defendant knew, or but that some injury would reasonably be an- ought to have known, of such danger, and ticipated, and, if the negligence of the de- ought to have guarded against it either by fendant was a continuing and contributing removing the trees from proximity to the cause of the injury, the defendant is liable. wires, or by insulating the wire, or by both. In Sioux City & Pacific R. R. Co. v. Stout,

We think there is not sufficient merit in 17 Wall. 657-665 (21 L. Ed. 745), the Supreme the other assignments of error to warrant a Court of the United States, in one of the turn- discussion of them in view of the settled law table cases, discussing the question as to of the state and of the instructions given the whether the defendant could anticipate an defendant, except we will briefly discuss the injury resulting from its negligence there in assignment that the verdict is excessive. volved, said:

[3] The injured boy is about 11 years of “That the turntable was a dangerous machine, injury to his right hand is permanent and

age and suffered considerable pain, and the which would be likely to cause injury to children who resorted to it, might fairly be infer will impair his usefulness through life. It red from the injury which actually occurred to is peculiarly a matter for the jury to deterthe plaintiff. There was the same liability to mine the proper compensation for injuries of injury to him, and no greater, that existed with this kind, and unless there is something in

the record which shows that the jury was, warrant founded upon an affidavit in which biased, partial, or prejudiced in the case, and affidavit it was alleged that the affiant "bas where the amount is not so large'as to shock reason to believe and does believe that vi. the conscience of fair and intelligent men, we nous, malt, alcoholic, intoxicating and spiritwill not disturb its finding. At the time of uous liquors are being kept and offered for the injury the purchasing power of a dollar sale and barter, and are sold and bartered is one element that may be properly consid- (or are being kept to give away and are beered in determining the number of dollars it ing given away to induce trade) in violation requires to compensate for an injury. Look- of law in a residence occupied by Curtis ing carefully through the record, sensible of Pickle, in the county of Leake, state of Misour obligations to administer the law and se- sissippi, and this suspicion is not feigned cure the litigants fair trial, we are unable to of malice to said Curtis Pickle, but is foundsay in this case that the verdict is excessive. ed on credible information, which he believes The verdict is therefore affirmed.

to be true," and prays for the issuance of a Affirmed.

search warrant. The warrant describes the

premises to be searched as “in a building ocANDERSON, J., dissenting.

cupied by Curtis Pickle, or in a certain vehicle, to wit, on premises or on the person of Curtis Pickle in the county of Leake, state

of Mississippi," and commands the officer to PICKLE V. STATE. " (No. 24321:)

make the search and enter the rooms, out(Supreme Court of Mississippi, Division B. buildings, or premises by breaking if necesDec. 8, 1924.)

sary, etc. Search was made and no liquors

were found in the house or room occupied by (Syllabus by the Court.)

Curtis Pickle. A store building was searched 1. Criminal law Om 1032(7)-Indictment and as well as the residence, and no liquor being

information om 166_Venue must be proven found in them, the officer proceeded to search as laid in indictment or affidavit; absence of other parts of the place owned by Curtis proof of venue as laid in indictment or affidavit may be raised in Supreme Court for Pickle, going outside of the yard and into a first time.

barn and lot and into the woods near the In a criminal case the venue is jurisdic- barn. While searching in the barn the feed tional and must be proven as laid in the in- trough was removed and a jug was found dictment or affidavit, and the absence of this buried under the trough containing about a proof may be raised in the Supreme Court for quart of "moonshine" whisky. the first time.

[1,2] On the trial in the circuit court the 2. Criminal law m564(1)-Evidence of affi- state failed to prove that the liquor was

davit and search warrant does not establish found in Mississippi and failure to prove venue; only efficacy of affidavit and search venue is assigned for error. The Attorney warrant as evidence is to establish rightful. General confesses that under former deci. ness of search and seizure.

sions of this court he proving of venue is In a prosecution for a criminal offense essential to a conviction, but he urges that predicated upon evidence found by means of the affidavit and search warrant were inan affidavit and search warrant, which affidavit and search warrant are introduced by the state, troduced in evidence and that they described the introduction in evidence of the affidavit the premises of Curtis Pickle as being in and search warrant does not establish venue. Leake county, Miss., and in district 2 of that The only efficacy of such affidavit and search county. He concedes that the variance bewarrant as evidence is to establish the right-tween the affidavit and the search warrant fulness of the search and seizure, and the re

was fatal to their validity, but contends that citals of these do not prove venue or other Pickle admitted that the liquor was found by element of the crime charged.

the officer in the barn on his premises, and Appeal from Circuit Court, Leake Coun- that under previous decisions the validity of ty; G. E. Wilson, Judge.

the search warrant and affidavit become im

material. Curtis Pickle was convicted of the unlaw

In our view of the case the introduction ful possession of intoxicating liquors, and he of the search warrant and the affidavit upappeals. Reversed and remanded for new

on which it was founded have no tendency trial.

to prove venue. The only evidential value Jas. T. Crawley, of Kosciusko, and W. T. they would have would be to justify a search Triplett, of Carthage, for appellant.

and make legal evidence obtained by means E. C. Sharp, Asst. Atty. Gen., for the State. of a search. At most, it is a mere charge and

has no efficacy in establishing the venue of ETHRIDGE, J. Curtis Pickle was convict- the case, and by reason of the failure of the ed in the circuit court of Leake county for state to prove venue the judgment must be having intoxicating liquors in his possession reversed and the cause remanded for a new in district 2 of said county. The prosecu- trial. tion came about by the issuance of a search Reversed and remanded.

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

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Wm. HARDEN et al. v. STATE. (No. 24284.)* Clarence KAISER V. STATE. (No. 24467.) *

(Supreme Court of Mississippi, Division A. (Supreme Court of Mississippi, Division A.

Dec. 1, 1924.)
Dec. 1, 1924.)

Appeal from Circuit Court, Adams County; Appeal from Circuit Court, Warren County;

R. L. Corban, Judge. E. L. Brien, Judge.

Engle & Laub and W. A. Geisenberger, all Anderson, Vollor & Kelly, of Vicksburg, for of Natchez, for appellants. appellant.

F. S. Harmon, Asst. Atty. Gen., for the F. 3. Harmon, Asst. Atty. Gen.; for the State. State.

PER CURIAM. Conviction in lower court PER CURIAM. Conviction in lower court of having still in possession, with sentence to of unlawful retailing, with sentence to pay pay fine of $300. Affirmed. fine of $250 and to three months' imprisonment. Affirmed.

B. R, SHIPP v. STATE and City of Water PEARL RIVER COUNTY V. J. W. Valley. (No. 24399.)

BLODGETT. (No. 24498.) (Supreme Court of Mississippi, Division A. (Supreme Court of Mississippi, Division A. Dec. 1, 1924.)

Dec. 1, 1924.) Appeal from Circuit Court, Yalobusha Coun Appeal from Circuit Court, Pearl River ty; Greek L. Rice, Judge.

County; J. Q. Langston, Judge. Creekmore & Creekmore, of Water Valley,

See, also, 98 So. 227. for appellant.

Parker & Shivers, of Poplarville, for appelHarry M. Bryan, Asst. Atty. Gen., for appel- lant. lees.

D. E. & C. W. Sullivan, of Hattiesburg, for

appellee. PER CURIAM. Conviction in lower court of having liquor in possession, with sentence PER CURIAM. Affirmed on direct and to pay fine of $100 in two cases. Affirmed. cross appeals. *Suggestion of error overruled January 19, 1925. † Suggestion of error overruled December 22, 1924.

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B. N. Knox, of New Albany, for appellant. Alva BRENT V. STATE. (No. 24305.) Harry M. Bryan, Asst. Atty. Gen., for the

State. (Supreme Court of Mississippi, Division A. Dec. 1, 1924.). .

PER CURIAM. Conviction in lower court Appeal from Circuit Court, Pike County; of attempt to manufacture liquor, with senE. J. Simmons, Judge.

tence to three years in penitentiary. Affirmed. J. A. Wiltshire, of Magnolia, for appellant. E. C, Sharp, Asst. Atty. Gen., for the State. HOLDEN, J.

Horace BEASLEY V. STATE. (No. 24439.) The appellant, Alva Brent, was tried on a charge of murder, and convict (Supreme Court of Mississippi, Division A. ed of manslaughter, and sentenced to 15 years

Dec. 1, 1924.). in the penitentiary; hence this appeal.

We have carefully examined all of the Appeal from Circuit Court, Greene County; grounds urged for reversal by counsel for the C. C. Miller, Judge. appellant, and we find no reversible error in

A. T. L. Watkins, of New Augusta, for appelthe record.

lant. The main point presented for reversal is

E. C. Sharp, Asst. Atty. Gen., for the State. that the lower court erred in refusing a continuance of the case, on account of the absence

PER CURIAM. Conviction in lower court of an important witness. We have examined the action of the lower court with reference to of having whisky in possession, with sentence this matter, and, without discussing the de- to pay fine of $100 and two months' impris. tails of the procedure followed by the circuit onment. Affirmed. judge, we do not think the court erred in refusing to continue the case, nor in refusing to granť a new trial on this ground. Therefore W. T. BARNETT, Adm'r, v. W. J. BOLTON the judgment of the lower court is affirmed.

et al. (No. 24518.) Affirmed.

(Supreme Court of Mississippi, Division A.

Dec. 1, 1924.) Griffin WEBB V. STATE. (No. 24511.)

Appeal from Chancery Court, Prentiss Coun(Supreme Court of Mississippi, Division A. ty; Allen Cox, Chancellor. Dec. 1, 1924. Suggestion of Error Over

J. E. Berry, of Boonville, for appellant. ruled Dec. 15, 1924.)

W. C. Sweat, of Corinth, for appellees.
Appeal from Circuit Court, Jackson County;
D. M. Graham, Judge.

PER CURIAM. Affirmed.
Garraway & Broadus, of Purvis, for appel-
lant.
E. C. Sharp, Asst. Atty. Gen., for appellee.

C. A. WILKINS v. 0. S. CANTWELL, Trus. PER CURIAM. Conviction in lower court of

tee, et al. (No. 24332.) having liquor in possession, with sentence to pay fine of $500 and to 30 days’ imprisonment.

(Supreme Court of Mississippi, Division A. Affirmed.

Dec. 1, 1924.)
Appeal from Chancery Court, Lefiore Coun.

ty; C. L. Lomax, Chancellor.
John H. SMART et al. v. E. N. THOMAS.
(No. 23946.)

Gardner, Odom & Gardner, of Greenwood,

for appellant. (Supreme Court of Mississippi, Division A. E. L. Mounger, W. M. Whittington, and Os. Dec. 1, 1924.)

born & Witty, all of Greenwood, and B. B. Al

len, of Moorhead, for appellees.
Appeal from Chancery Court, Washington
County; J. G. McGowan, Special Chancellor.

PER CURIAM. Affirmed.
T. S. Bratton and D. C. Enochs, both of
Jackson, for appellants.

A. A. Armistead, of Vicksburg, for appellee.
PER CURIAM. Affirmed.

Dock BUCHANAN v. John NORTON.

(No. 24424.)
(Supreme Court of Mississippi, Division A.

Dec. 1, 1924.)
MANSELL PANNELL V. STATE.
(No: 24590.)

Appeal from Chancery Court, Chickasaw

County; Allen Cox, Chancellor. (Supreme Court of Mississippi, Division A. Dec. 1, 1924.)

J. H. Ford, of Houston, for appellant,

R. H. Knox, of Jackson, for appellee.
Appeal from Circuit Court, Union County;
Thos. E. Pegram, Judge.

PER CURIAM. Affirmed. *Suggestion of error overruled January 12, 1925.

(102 So.)

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Charlie CLARK V. STATE. (No. 24334.) * SCHAEFER et al. v. VOYLE et al. (Supreme Court of Mississippi, Division A. (Supreme Court of Florida, Division B. Aug. Dec. 1, 1924.)

1, 1924. Rehearing Denied Oct. 2, 1924.) Appeal from Circuit Court, Warren County; E. L. Brien, Judge.

(Syllabus by the Court.) 1. Evidence Om63-Insane

persons Harry K. Murray, of Vicksburg, for appellant.

Every person presumed sane until contrary E. C. Sharp, Asst. Atty. Gen., for the State.

appears; burden of proof of insanity in civil actions on party alleging it.

Every person is presumed to be sane until PER CURIAM. Conviction in lower court the contrary appears, and in civil actions the of grand larceny, with sentence to five years in burden of proof of insanity rests upon him who penitentiary. Affirmed.

alleges it.
2. Appeal and error 931(1), 1009(2)-Chan-

cellor's finding on conflicting evidence pre-
sumed correct; chancellor's decree supported

by legal evidence not reversed unless clearly GULF & SHIP ISLAND R. CO. v. Belle RUT. erroneous. LAND. (No. 24516.)

The finding of a chancellor on conflicting

evidence is presumptively correct, and where (Supreme Court of Mississippi, Division A.

there is legal evidence to support it the decree Dec. 1, 1924.)

will not be reversed unless it clearly appears to

be erroneous. Appeal from Circuit Court, Covington County; W. L. Cranford, Judge.

3. Wills On 290—Where testator shown in B. E. Eaton, of Gulfport, and T. J. Wills, of custody of will which cannot be found after Hattiesburg, for appellant.

death, destruction with intention to revoke E. L. Dent, of Collins, for appellee.

presumed.

Where it is shown that a testator had his PER CURIAM. Affirmed.

will in his custody and it cannot be found after
his death, it is presumed, in the absence of oth-
er evidence, that he destroyed it with intention
to revoke.
4. Wills Om 481-Generally ambulatory and

have no operation until testator's death. BANK OF PONTOTOC v. Mrs. R. C. ANDERSON, Ex'r. (No. 24496.)

Generally wills are ambulatory and have no

operation until the death of the testator. (Supreme Court of Mississippi, Division A. Dec. 1, 1924.)

5. Wills om 179—Execution of second will aft.

erwards destroyed by testator does not affect Appeal from Circuit Court, Pontotoc Coun validity of prior will. ty; C. P. Long, Judge.

The execution of a second will, which is Fontaine & Fontaine, of Pontotoc, for apo affect the validity of a will previously ex

afterwards destroyed by the testator, does not pellant. Marshall T. Adams, of Pontotoc, for appellee. ecuted by him.

6. Wills 198-Destruction of will containing PER CURIAM. Affirmed.

revoking clause may revive, in absence of showing of contrary intent, prior will existing at testator's death,

In the absence of a showing of contrary intent, the destruction by the testator of a will

executed by him which contained a provision Bud DUKES V, STATE. (No. 24648.) revoking former wills, may revive a will pre

viously made by the testator and in existence (Supreme Court of Mississippi, Division A. at the date of his death.

Dec. 1, 1924.) Appeal from Circuit Court, Perry County; Appeal from Circuit Court, Hernando R. S. Hall, Judge.

County; W. S. Bullock, Judge. A. T. L. Watkins, of New Augusta, for ap

Proceeding by Amelia K. Schaefer and pellant. Harry M. Bryan, Asst. Atty. Gen., for the others against Charles C. Voyle and another,

as executors of the last will and testament State.

of Lizzie A. Butterweck, deceased, and othPER CURIAM. Conviction in lower court ers, for revocation of order probating will. of having liquor in possession, with sentence From an order and judgment confirming to pay fine of $500 and to 90 days' imprison- the probate of the will, plaintiffs appeal. ment. Affirmed.

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

*Suggestion of error overruled December 22, 1924.

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