contracts, which usually contain special excep- | authorities, that such a contingency was not tions.' Again: "The fair and just interpreta- within the contract of insurance, and formed tion of a contract of life insurance, made with

the assured, is that the risk is of death proceed-no part thereof, and such stipulation would ing from other causes than the voluntary act have been absolutely void had it been in of the assured, producing or intended to produce plain language written in the policy itself. it' and that 'the extinction of life by disease, To hold that the incontestable clause

or by accident, not suicide, voluntary and in-embraces this defense is, in my humble judgtentional, by the assured, while in his senses, is the risk intended; and it is not intended ment, to permit that to be done indirectly that, without hazard of loss, the assured may which under our own decisions, based upon safely commit crime.' sound public policy and good morals, could not be done directly. Based upon any line of reasoning, it results after all that the solemn judgment of a court is rested upon a foundation of crime, as said by the Supreme Court of the United States in the Ritter Case, supra:

The Ritter Case was subsequently reaffirmed in Northwestern Life Ins. Co. v. McCue, the court concluding the discussion of this question by the use of the following language:

"These cases must be accepted as expressing the views of this court as to the public policy which must determine the validity of insurance policies, and which they cannot transcend even by explicit declaration, much less be held to transcend by omissions or implications."

In the case of Scarborough v. American National Ins. Co., 171 N. C. 353, 88 S. E. 482, Ann. Cas. 1917D, 1181, special reference is made to the Ainsworth Case, and quotation taken therefrom.

A review of these cases, therefore, disclose that the Ainsworth Case has been accepted by the courts of other jurisdictions, as declaring the public policy of this state, which, in my opinion, is sound and based upon good morals and should not now be in effect repudiated. These authorities are based upon the proposition that it would be against public policy and good morals for parties to contract for the payment of an insurance policy when the insured came to his death by his own voluntary act, when of sound mind. The Ainsworth Case as well as the Ritter Case expressly declare that such a clause of insurance would be absolutely void as against public policy. As said by this court in the Ainsworth Case:

"An express contract to pay the insurance money to the insured, in the event he committed suicide, an increased premium being paid because of the risk, there could be but little, if any, hesitancy in repudiating as offensive to law and good morals.'

Again, in Burt v. Union Central Life Ins. Co., 187 U. S. 362, 23 Sup. Ct. 139, 47 L. Ed. 216, the court said:

"Public policy forbids the insertion in a contract of a condition which would tend to induce crime, and as it forbids the introduction of such a stipulation, it also forbids the enforcement of a contract under circumstances which cannot be lawfully stipulated for."

Conviction of defendant, a negress, under Code 1907, § 7421, is not authorized, there being no evidence that the man was white, or that they had lived together in the state of adultery or fornication.

Appeal from Circuit Court, Marion County; C. P. Almon, Judge.

Ophelia Metcalf was convicted under Code 1907, § 7421, and appeals. Reversed and remanded.

C. E. Mitchell, of Hamilton, for appellant. F. Loyd Tate, Atty. Gen., and Emmett S. Thigpen, Asst. Atty. Gen., for the State.

BROWN, P. J. [1, 2] The appellant was convicted of the offense denounced by section 7421 of the Code of 1907. On the trial, she testified as a witness in her own behalf, and was in the presence of the court and jury, and this was sufficient to authorize the finding that she was of the negro race. However, there was no evidence that Simmons was a white man, nor was there any evidence showing or tending to show that the appellant and Simmons had lived together in the state of adultery or fornication.

The majority opinion of the court, written in response to the application for rehearing, does not take issue with this proposition. Indeed, it is manifestly sound, but the opinion proceeds upon the idea that by the incontestable clause the company has agreed not to interpose this defense. As reviewed in the Ainsworth Case, and the other authorities above cited, this clause could have no effect where the insured came to his death by bis The court, on the evidence, erred in not own voluntary act, while of sound mind, for directing a verdict for the defendant, on the simple reason, as pointed out by these her request for the affirmative charge. Eman

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

uel Dean v. State, 77 South. 979. For this error, the judgment is reversed, and the cause remanded.

Reversed and remanded.

(16 Ala. App. 390)

SIMMONS v. STATE. (6 Div. 445.) (Court of Appeals of Alabama. March 12, 1918.)

Appeal from Circuit Court, Marion County; C. P. Almon, Judge.

Jim Simmons was indicted, tried, and convicted of felonious adultery, and from the judgment appeals. Reversed and remanded.

3. CRIMINAL LAW
FESSIONS.

531(4)--EVIDENCE-CON

It is the right of accused before a confession is received to rebut evidence that it was voluntary, and in determining competency of the confession, the court should consider, not only evidence offered by the prosecution, but also evidence elicited by the accused, and it is reversible error to refuse accused the right to show that it was involuntary.

4. CRIMINAL LAW 1158(4)-REVIEW-EVIDENCE-CONFESSIONS.

Where the evidence is conflicting, and the court adjudges a confession voluntary and admissible, its finding is entitled to great weight, and will not be disturbed, unless palpably contrary to the weight of evidence.

E. B. & K. V. Fite, of Hamilton, for appel-5. lant. F. Loyd Tate, Atty. Gen., and Emmett S. Thigpen, Asst. Atty. Gen., for the State.

SAMFORD, J. There is not sufficient evidence disclosed by the bill of exceptions to warrant the submission of this case to the jury, and on authority of Metcalf v. State, 78 South. 305, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

(16 Ala. App. 390)

BELMONT v. STATE. (7 Div. 527.) Court of Appeals of Alabama. March 12, 1918.)

CRIMINAL LAW ~1131(5)—APPEAL AND ER

BOR-DISMISSAL OF APPEAL.

CRIMINAL LAW 531(2)—EVIDENCE-CON

FESSIONS.

If a confession is admitted, accused is entitled to have the jury consider all the evidence of circumstances under which it was made, to aid them in determining what credence and weight should be given to it, along with other evidence. EVIDENCE 6. CRIMINAL LAW 531(1) CONFESSIONS.

In absence of evidence that influence rendering a prior confession involuntary had ceased or been dispelled, the court must assume that a subsequent confession, made in presence of persons shown to have induced the prior confession by threats and abuse, was impelled by the same influence, and exclude it as also involuntary.

Appeal from Circuit Court, Walker County; T. L. Sowell, Judge.

Sefe Cook, alias, etc., was convicted of burglary and grand larceny, and he appeals. Re

Where the accused escapes jail and becomes a fugitive from justice after he appeals, his ap-versed and remanded. peal will be dismissed.

Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.

Reginald Belmont was convicted of assault with intent to rape, and he appeals. Appeal dismissed.

P. F. Wharton and S. W. Tate, both of Anniston, for appellant. F. Loyd Tate, Atty. Gen., and Emmett S. Thigpen, Asst. Atty. Gen., for the State.

Leith & Powell, of Jasper, for appellant. F. Loyd Tate, Atty. Gen., and Emmett S. Thigpen, Asst. Atty. Gen., for the State.

BROWN, P. J. The state offered evidence showing that on the night of October 6, 1916, the building occupied and used by Clyde Thompson and Jerry Maxey as a shop for cleaning and pressing clothes, and in which clothes were kept for such purpose, was broken into and entered, and that clothes of the value of $175 were taken therefrom. The breaking and entry was through the back door, which the undisputed evidence shows was closed and barred by the witness Maxey, on the night of the burglary, and the next morning the door was standing open, and several suits of clothes and one or more dresses were missing. The state also offered evidence tending to connect the defendant and one Pete Moore with the offense, and to show that they were confederates in the crime. The court allowed the state, over the timely objection of the defendant, to offer evidence of a confession made by Moore in the presence of the defendant to the witness Guttery while Williams, the sheriff of Conecuh county, Kendall, his deputy, and another were The only predicate on which the present. confession was admitted was the testimony of Guttery to the effect that he offered Moore no inducements and made him no promises, Before and made against him no threats. the testimony of the confession was given, the

defendant objected to its admission, and pro- [3] It is the right of the accused, before posed to show that a week or ten days before the confession is received, to rebut the evithis alleged confession was made Williams dence offered by the prosecution to show that and Kendall and the other person present, by the confession was voluntary, and it is the abuse and threats, coerced from Moore in duty of the court in determining the compedefendant's presence a like confession. The tency of the confession, not only to consider court refused to hear this testimony, over- the evidence offered by the prosecution, but ruled the defendant's objection, and permit- the evidence elicited by the accused, and for ted the state to offer proof of the confession. the court to refuse to the accused the right After the state offered all its evidence in chief to show that the confession was involuntary and had closed, the defendant testified as a is reversible error. Underhill Cr. Ev. § witness and gave testimony to the effect that 127; Commonwealth v. Culver, 126 Mass. Williams, Kendall, and the other person pres- 464; People v. Rogers, 192 N. Y. 345, 85 N. ent, when Moore made the confession to Gut- E. 135, 15 Ann. Cas. 177; Biscoe v. State, tery, a few days before Guttery came to Ev- 67 Md. 8, 8 Atl. 571; Rufer v. State, 25 Ohio ergreen and while the defendant and Moore St. 464, 18 L. R. A. (N. S.) 777, note. were confined in the county jail of Conecuh [4] Where the evidence is conflicting, and county, under the charge for which the de- the court adjudges that the confession was fendant was tried, in the presence and hear- voluntary and admissible, on review the finding of defendant, put a rope around Moore's ing of the court is entitled to great weight, neck and pulled him up as if they were going and will not be disturbed unless it is palpably to hang him, and threatened to kill him un- contrary to the weight of the evidence. See less he confessed to the crime, and threatened Harwell v. State, 12 Ala. App. 265, 68 South. the defendant if he disputed Moore's confes- 500; Pope v. State, 183 Ala. 61, 63 South. 71. sion, and in this way obtained a confession [5] If the confession is admitted, the acfrom Moore. The testimony given by defend-cused is entitled to have the jury consider all ant in rebuttal of the predicate on which the the evidence touching the circumstances unconfession was made was undisputed, and at der which it was made, to aid them in deterthe conclusion of all the testimony in the case mining what credence and weight should be the defendant made a motion to exclude the given to it, along with the otuer evidence in testimony given by Guttery relative to the confession, and this motion was overruled.

[1] The rule. in this state is that extrajudicial confessions of guilt by one accused of crime are prima facie involuntary, and the burden rests upon the state to overcome the prima facie infirmity by evidence satisfac tory to the court, showing that the confession was voluntarily made. Fortner v. State, 12 Ala. App. 181, 67 South. 720: Price v. State, 117 Ala. 113, 23 South. 691: Whatley v. State, 144 Ala. 68, 39 South. 1014; Beckham v. State, 100 Ala. 15, 14 South. 859; Redd v. State, 69 Ala. 255; Young v. State, 68 Ala.

"It is the duty of the trial court, in all cases, before permitting such confessions to be_shown, to ascertain that they are voluntary." Fortner v. State, supra; Whatley v. State, supra.

"The province and duty of the court and of the jury are essentially separate and distinct, and neither can assume the duty or invade the province of the other. The court adjudged the confessions were prima facie voluntary, and therefore competent and admissible evidence. As competent the jury were bound to receive them" (Young v. State, 68 Ala. 580), but as to what weight the confession is entitled to in solving the issues is a matter exclusively within the province of the jury.

"So when a confession has been once obtained through the influence of hope or fear, confessions of a similar character, subsequently made, as is uniformly held, may be inferred to have originated from the same motive, and, in the absence of evidence to the contrary, showing that the original influence had ceased. or been dispelled, they are inadmissible." Redd v. State,

the case.

[6] We are of the opinion, therefore, that the court committed reversible error in this

case in refusing to hear the defendant's pro-
posed evidence touching the predicate for al-
lowing the confession, and also in overruling
the motion to exclude the alleged confession.
As we have said, the defendant's testimony
duced by threats and abuse, under circum-
as to the fact of the first confession being in-
stances showing conclusively that it was not
voluntary, and by those present when the
confession was made to the witness Guttery,
and there was no evidence showing that the
influence under which the first confession was
made had ceased or been dispelled, the court
must assume, in the absence of such evi-
dence, that the subsequent confession was im-
pelled by the same influence.
Reversed and remanded.

Leith & Powell, of Jasper, for appellant. F. Loyd Tate, Atty. Gen., and David W. W. Fuller, Asst. Atty. Gen., for the State.

BRICKEN, J. This defendant was indicted, tried, and convicted for the offense of burglary and grand larceny. The material questions in

decided by this court in the case of Cook v. [ treating disease as a profession and for a State, 78 South. 306, present term.

Under authority of that case, the judgment of conviction in the lower court is reversed, and the

cause remanded.

Reversed and remanded.

1918.)
PHYSICIANS AND SURGEONS ~6(1⁄2)—CHIRO-
PRACTOR-CERTIFICATE OF QUALIFICATION-
NECESSITY OF OBTAINING.

livelihood is a police regulation designed to protect the public from the ignorant and incompetent, and it is a matter clearly within legislative competency to prescribe a test by which qualification may be determined, and to confer authority on a designated board to conduct the proper examination through which the test may be applied. This the Legislature has done. Code 1907, §§ 16261645; Whitehead v. Coker, 76 South. 484, reviewed and affirmed 76 South. 999.

There being no discrimination against the Requiring a certificate of qualification from appellant or his school of practice, there is persons proposing to engage in the practice of no reason why he should be excepted from treating diseases as a profession and for a live-the operation of this police regulation. lihood is a police regulation designed to protect Smith v. State, 8 Ala. App. 352, 63 South. the public from the ignorant and incompetent, and the Legislature may prescribe a test to de- 28, 183 Ala. 116, 63 South. 70; Fealy v. Birtermine qualification, and confer authority on a mingham, 73 South. 296; State v. Johnson, designated board to conduct the proper exami- 84 Kan. 411, 114 Pac. 390, 41 L. R. A. (N. S.) nation through which the test many be applied, 539; Germany v. State, 62 Tex. Cr. App. 276, as is done by Code 1907, §§ 1626-1645, denying the privilege to such persons without a certifi- 137 S. W. 130, Ann. Cas. 1913C, 477, and note cate from the "state board of medical examin- | 484. ers," and a chiropractor not excluded or discriminated against, and having equal right to apply for a certificate, and not denied the right to practice, is not exempt from the operation of such regulation.

Appeal from Circuit Court, Jefferson County; H. P. Heflin, Judge.

Dr. A. N. Williamson was convicted of the offense of treating diseases of human beings by a system of treatment known and called "Chiropractic" without having obtained a certificate of qualification from the State Board of Medical Examiners, and he appeals. Affirmed.

Harsh, Harsh & Harsh and Z. T. Rudolph, all of Birmingham, for appellant. F. Loyd Tate, Atty. Gen., and W. S. Welch, of Bessemer, for the State.

On the admitted facts, the court could well have directed a verdict for the state, and there is nothing in the record of which appellant can complain. Affirmed.

(16 Ala. App. 392) CHILDS v. STATE. (4 Div. 529.) (Court of Appeals of Alabama. March 12, 1918.)

CRIMINAL LAW

304(17)—JUDICIAL NOTICE -RULES AND REGULATIONS OF LIVE STOCK SANITARY BOARD.

The rules and regulations authorized to be enacted by the state live stock sanitary board, when adopted, are in the nature of ordinances, and as such must be pleaded and proved before the courts will permit them to become the basis for a criminal prosecution for failure to comply therewith.

Appeal from Circuit Court, Pike County; A. B. Foster, Judge.

W. A. Childs was convicted of failing to dip cattle, and appeals. Reversed and re

BROWN, P. J. Since the ruling in Bragg's Case, 134 Ala. 170, 32 South. 767, 58 L. R. A. 925, the statutes have been amended so as to deny to all persons the privilege of engaging in the calling or profession of treating or of-manded. fering to treat diseases of human beings by The conviction of defendant was on an any system of treatment whatsoever who affidavit made before a justice of the peace, have not obtained a certificate of qualifica- charging that "he did unlawfully and will

tion from the "state board of medical ex

after being notified to do so by said inspector, in violation of the rules and regulations of the said board, against the peace," etc.

aminers." Compare Code 1896, §§ 3261-3264, fully fail or refuse to dip all cattle owned and 5333, with Code 1907, §§ 1627-1646, 7564. by him or in his charge at the time and The authority of the board to issue certifsioned by the state live stock sanitary board place designated by an inspector commisicates of qualification is not limited to those who desire to enter the profession as homeopathic doctors, but extends to all schools or systems of treatment. Code 1907, § 1627. The chiropractor is not excluded or discriminated against, and has the same right to apply for a certificate of qualification as does the homeopath or osteopath, and, if granted a certificate of qualification, there is nothing in the law that denies him the right to pursue his method of treatment.

J. L. R. Boyd, of Troy, for appellant. F. Loyd Tate, Atty. Gen., and Emmett S. Thigpen, Asst. Atty. Gen., for the State.

SAMFORD, J. The rules and regulations authorized to be enacted by the state live The statutory provision requiring persons stock sanitary board, when adopted, are in who propose to engage in the practice of the nature of ordinances, and as such must

be pleaded and proved before the courts will [ are subject to the criticisms insisted upon permit them to become the basis for a criminal prosecution. We tried to give the correct rule in Powell v. State, 75 South. 269, and while that part of the opinion was dictum in that case, we adhere to it here. The demurrer should have been sustained.