If the parties went over each item of an account and agreed to all the items, it was immaterial whether the items were ever totaled. 10. TRIAL 252(12)-INSTRUCTIONS. In action against executor on account alleged to have been stated to deceased, requested instruction that, even if deceased went over the account and promised to pay it, plaintiff could not recover for part of the account if that part was the debt of her husband was properly refused as abstract. 11. ACCOUNT STATED 8-INSTRUCTIONS. In action on account alleged to have been stated to deceased, it was immaterial whether the wife of plaintiff, in making entries in a book offered in evidence, knew they were correct, when she testified that deceased, having read them, agreed that they were correct. SAMFORD, J. There are four counts in the complaint: First, on open account; second, on account stated; third, for work and labor done; and fourth, for money had and received. To these counts were interposed the plea of the general issue and the statute of limitations of three years to all of the counts except the second, and to the second, the statute of limitations of six years. The defendant was appointed and qualified as executrix, etc., in August, 1914. The verified account in favor of the plaintiff was duly filed with the executrix on the 5th day of April, 1915, and suit was brought on the 16th day of April, 1915; the last item of the account being dated November 3, 1912. There was evidence tending to show that the plaintiff furnished to the deceased certain goods and merchandise, rendered certain services, and furnished certain cash during a period, as shown by the account, from January 1, 1910, to November 3, 1912. The correctness of this account was testified to by the wife of the plaintiff, and was corroborated in some particulars by the testimony of other witnesses. Mrs. Countess further testified that a part of the account was agreed to by the decedent during the summer of 1910, the testimony for the plaintiff tending to show that the account which had accrued up to that time was gone over between the wife of the plaintiff, who kept the account, and the deceased, and that they agreed to the correctness of same up to that time, and that the deceased at that time instructed Mrs. Countess to continue to keep the account, and stated that she wanted to pay it. The book of original entry was offered in evidence and identified as such, showing an Appeal from Circuit Court, Madison Coun- account made out against Mrs. Sallie Townty; R. C. Brickell, Judge. Action in assumpsit by Thomas J. Countess against Mrs. Arthur H. Nance, as executrix of Sarah L. Townsend, deceased. Judgment for plaintiff, and defendant appeals. Affirmed. Most of the facts and charges sufficiently appear. Charge 19, refused to defendant, is as follows: The court instructs the jury as a matter of law that, even if Sarah L. Townsend went over the account for 1910, in the spring or summer of 1910, and promised to pay the same, they would be not authorized to find for plaintiff for the part of the account for nursing P. S. Townsend, if they find from the evidence that the charges for such nursing were, when the nursing was done, the debt of P. S. Townsend, and not originally the debt of Sarah L. Townsend. (20) Unless the jury are reasonably satisfied from the evidence that Mrs. Countess had knowledge, at the time she made the entries on the book offered in evidence, that same was true and correct, then the entries are not to be considered by the jury as evidence of the correctness of the account sued on. R. E. Smith, of Huntsville, for appellant. Spragins & Speake and Lanier & Price, all of Huntsville, for appellee. send in favor of the plaintiff. The evidence further tended to show that a part of the account was for nursing the husband of the decedent, and further tended to show that such nursing was done by the plaintiff and his wife at the request of the decedent, and that the price had been agreed upon between them. It was further shown that the Townsends and the plaintiff and his wife were good friends, and that during several years plaintiff had received some checks, aggregating $12 or $15, from the decedent during her lifetime, but there is no evidence that the services were not rendered, or that the goods and other items shown by the account were not furnished by the plaintiff to the decedent. As to that part of the account prior to June, 1910, the evidence tended to show that the account had been presented to the decedent by the wife of the plaintiff; that they went over the items in the book together, and agreed upon the amounts, but the items were never added up, or totaled. Appellant (defendant in the court below) assigns 21 grounds as error, 5 of which are to rulings upon the evidence, and the balance For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes to the giving and refusing of written charg- | rendered that there was to be but one bill, es. These assignments will be treated seriatim. and that was to be the bill of the husband. In that case, if the jury believed from the evidence that the services were rendered, the husband could recover, if it was understood that the services were being rendered at the instance of the husband, and the question of the remuneration of the wife would be between the plaintiff and his wife. [6, 7] 7. Under section 4838 of the Code of 1907, the time for the running of the statute of limitations is to be computed from the date of the last item of the open account. Code, § 4838; Northern Ala. Ry. Co. v. Wilson Merc. Co., 9 Ala. App. 269, 63 South. 34. An open account within the meaning of the statute is one in which some term of the [1] 1. The court did not err in sustaining appellee's objection to the question propounded by the appellant to the witness John Patterson, to wit, "Did you ever hear of any claim made on Mrs. Townsend's estate for nursing?" This question clearly called for hearsay testimony, and was not admissible. [2] 2 and 3. The trial court did not err in overruling the defendant's objection to the question propounded to Mrs. Patterson by the plaintiff, to wit, "Did you ever hear Mrs. Townsend say anything about her intention to pay Mr. and Mrs. Countess for their services?" One of the contentions in this case was that the decedent, Mrs. Town-contract is left open and undetermined by the send, had never recognized the debt claimed by the plaintiff, and that on account of the close friendly relations existing between the parties, the services rendered and the goods and cash furnished were voluntary services and gifts. If Mrs. Townsend had made statements contrary to this view, these statements would be relevant as tending to establish one of the contentions in the case. [3] 4. The court did not err in sustaining appellee's objection to appellant's question propounded to the witness Lottie Woodall, as follows: "Did you ever see any property yourself that Mr. and Mrs. Townsend had that you afterwards saw in the possession of Mr. Countess?" This was clearly immaterial, and tended to present an issue not involved in the trial of this case. Even if it had been made to appear that Mr. Countess had such property, it would not have tended to disprove the account which he is here claiming, there being no evidence to show that it was paid on the account, or that he received it in settlement therefor, if at all. [4] 5. The court, at the request of the plaintiff in writing, gave the following charge: "If the jury believe from all the evidence in this case that the account claimed to be a stated account was agreed to by Mrs. Sarah L. Townsend in the spring or summer of 1910, then the plaintiff is entitled to recover such amount as was agreed to be due at that time." parties. Battle v. Reid, 68 Ala. 149; Caruthers & Kinkle v. Mardis, 3 Ala. 599; Mims, Adm'r, v. Sturtevant, 18 Ala. 359; Sheppard v. Wilkins, 1 Ala. 62. It was therefore a question for the jury under the evidence to say whether or not the entire account was an open account. If so, the statute would not begin to run until the date of the last item. Therefore charges predicated upon a theory opposed to this view are bad, and were properly refused. This ruling will apply to assignments of error 8, 12, 13, 14, 15, 16, and 21; besides the charge made the basis of assignment 13 was bad, in that it was not limited to the count claiming for an account stated. [8, 9] 8. Under the evidence in this case, it was a question for the jury as to whether there was an account stated between the parties. The fact that the account as agreed to was never totaled is of no consequence. If it was agreed to so as to become certain, it was sufficient. Battle v. Reid, 68 Ala. 149. 9. There was sufficient evidence to go to the jury on each of the counts, and therefore the affirmative charge as requested on the several counts was properly refused. Pollock v. Gunter & Gunter, 162 Ala. 317, 50 South. 155. [10] 10. The refusal of the charge made the basis of assignment 19 was not error. The charge is abstract. [11] 11. The charge made the basis of as Under the facts in this case, this was a proper charge. The measure of proof requir-signment 20 does not state a correct proposied is correctly stated. Sanders v. Davis, 153 Ala. 375, 44 South. 979; A. S. & W. Co. v. Griffin, 149 Ala. 423, 42 South. 1034; State v. O'Hagan, 38 Iowa, 504. [5] 6. Under the facts in this case, assignments of error 10 and 18 are not well taken. It was a question for the jury to say whether or not it was agreed on and understood when the services claimed in this suit were tion, under the evidence. Whether Mrs. Countess knew of the correctness of the entries or not at the time she made them, she testified that the deceased admitted and agreed to their correctness after they had been made. We find no error in the record, and the judgment is affirmed. Affirmed. 5. CRIMINAL LAW ~517(4) — CONFESSIONS- Confessions are prima facie involuntary, and it must be satisfactorily shown to the court that they are voluntary, and were made when the mind of the accused was free from the influence or hope or fear, before they can be received in evidence. 7. CRIMINAL LAW 406(3) -ADMISSIBILITY. CONFESSIONS The rule of exclusion of confessions not shown to be voluntary applies, not only to confessions, but to inculpatory admissions, directly relating to the facts or circumstances of the agreement and connecting defendant therewith. S. CRIMINAL LAW 406(3)—CONFESSIONSADMISSIBILITY. Inculpatory admissions as to collateral facts, however incriminating, not in the nature of a confession, are not within the rule of exclusion, and are admissible without preliminary proof that they are voluntary. 9. CRIMINAL LAW ~534(2), 537 · CONFESSIONS-DISCOVERY OF FACTS FROM INVOLUNTARY CONFESSION. - conspiracy to engage in the business of bring- - STOLEN PROPERTY INTO STATE OTHER OF- In prosecution for bringing into the state an automobile stolen elsewhere, it was permissible to show that defendant and his confederates stole other automobiles and brought them into the state, as giving character to defendant's acts. Appeal from Circuit Court, Jefferson County; H. P. Heflin, Judge. Chester Whitehead was convicted of bringing stolen goods into the state, and he appeals. Reversed and remanded. Allen, Bell & Sadler and E. N. Hamill, all of Birmingham, for appellant. F. Loyd Tate, Atty. Gen., and David W. Fuller, Asst. Atty. Gen., for the State. BROWN, P. J. The count of the indictment to which the verdict of the jury responded follows the form laid down in the Code for indictments for the offense of "bringing stolen goods into this state," under section 7328 of the Code. Code, § 7161, form 25. This count charges that the defendant "feloniously took and carried away in the state of Illinois one automobile of the value of $750, the personal property of Frank Rose, and brought said automobile into the county of Jefferson, in this state, against the peace," etc. This form first appeared in the Code of 1886, as form 19 (section 4899), under the heading "Bringing Stolen Property into This State," for the offense denounced by section 3793 of that Code, which was in the following language: "Bringing Stolen Property into This State.Any person who brings into this state any personal property which he has stolen elsewhere, must, on conviction. be punished as if he had stolen it in this state." This statute and the form prescribed for indictments thereunder were carried forward into the Code of 1896 without change, but in bringing the statute forward into the present Code, as section 7328, it was revised by the code commissioner so as to read as follows: "Bringing Stolen Property into This State.Any person who fraudulently brings into this state any personal property which he knew was stolen elsewhere, must, on conviction be punished as if he had stolen it in this state. (Form 25 [20].)" Where an involuntary confession or inculpatory admission in the nature thereof leads to the [1, 2] While it cannot be doubted that this discovery of physical facts which establish the truth of the confession, so much of the confes- revision effected a material change of the sion as relates to the facts thus discovered is statute in respect to the elements of the ofadmissible, along with the proof of these facts. fense, and broadened its scope so as to em10. CRIMINAL LAW 552(1) EVIDENCE brace transactions not within the purview CONSPIRACY-CIRCUMSTANTIAL EVIDENCE. of the original statute, it cannot be doubted A conspiracy to engage in an unlawful undertaking or enterprise, like any other material that one who steals property in another state fact, may be shown by circumstantial evidence. and brings the stolen property into this state 11. CRIMINAL LAW 369(5) — BRINGING commits the offense denounced by the statPROPERTY INTO STATE STOLEN ELSEWHERE-ute as amended, and that the averments of EVIDENCE OF CONSPIRACY. In prosecution for bringing into the state the indictment quoted above are tantamount an automobile stolen elsewhere, evidence of a to an averment that the defendant fraudu lently brought the property into this state | Chicago, Ill., on the evening of April 12, knowing that it was stolen. Form 25, which 1916, about 6 o'clock, and locked the garage; is followed by the count of the indictment un- that on going to his garage the next morning der consideration, was brought forward from he found that the car had been taken out the Code of 1896 into the present Code, un- during the night, and that it was so taken der the following heading: "Bringing Stolen out without his knowledge or consent; that Property into This State.-Section 7328 he next saw the car two months later in (5053)." Code 1907, vol. 3, p. 664. The ef- Birmingham, where it had been sold to the fect of bringing this form forward as applica- witness Dr. Moore by L. A. Whitehead, a ble to this section of the Code as revised and brother of the defendant, through one Hodgadopted into the Code of 1907, under the rules, his agent or accomplice; that the serial ing of the Supreme Court, "was a legislative recognition and declaration that the form was sufficient, under the amended statute." Bailey v. State, 99 Ala. 145, 13 South. 566; Coleman v. State, 150 Ala. 64, 43 South. 715; Thomas v. State, 156 Ala. 171, 47 South. 257; Noles v. State, 24 Ala. 672; Wilson v. State, 61 Ala. 151; McCullough v. State, 63 Ala. 75; Smith v. State, 63 Ala. 55; Jones v. State, 136 Ala. 123, 34 South. 236; First Mayf. Dig. p. 422, § 10. The indictment was sufficient to cover any offense denounced by the statute. Weed v. State, 55 Ala. 15, overruling Bryan's Case, 45 Ala. 86, declaring a different rule; Darrington v. State, 162 Ala. 60, 50 South. 396; Arrington v. State, 13 Ala. App. 359, 69 South. 385; Ex parte Arrington, 195 Ala. 694, 70 South. 1012. number on the motor had been changed. This evidence shows the theft of the car, and was sufficient to authorize the inference that it was fraudulently brought into this state by the thief or his accomplices, with a knowledge that it was stolen property, and was sufficient proof of the corpus delicti to authorize the admission of defendant's confession, if the confession was otherwise admissible. Daniels v. State, 12 Ala. App. 119, 68 South. 499; Matthews v. State, 55 Ala. 187; Ryan v. State, 100 Ala. 94, 14 South. 868. [6] It is the settled rule in this state that: "Confessions are prima facie involuntary, and it must be satisfactorily shown to the court that they are voluntary-were made when the mind of the accused was free from the influence of hope or fear-before they can be received in evidence. Any menace, or hope excited by encourably dealt with if he confessed, is sufficient to agement that the prisoner would be more favorexclude them." Banks v. State, 84 Ala. 431, 4 South. 382; Fortner v. State, 12 Ala. App. 180, 67 South. 720; Whatley v. State, 144 Ala. 75, 39 South. 1014; Pearce v. State, 14 Ala. App. 120, 72 South. 213. [3, 4] The demurrers to the indictment were properly overruled. Resolving doubtful intendments arising from the averments in the pleas of former jeopardy against the pleader must be done on demurrer. It appears that the defendant was indicted in the [7] The rule of exclusion applies, not only former case, not for an unlawful conspiracy to confessions, but to inculpatory admissions to steal property in another state and bring in the nature of confessions; that is, diit into this state, but for fraudulently bring-rectly relating to the facts or circumstanc ing into this state an automobile, the prop- es of the crime, and connecting the defenderty of one McKinley, knowing that it was ant therewith. McGehee v. State, 171 Ala. stolen in the state of Illinois. The indict-19, 55 South. 159; Watts v. State, 177 Ala. ment in the instant case is for a like offense 24, 59 South. 270. committed with respect to the property of [8] On the other hand, inculpatory admisFrank Rose. It thus appears that the offense sions as to collateral facts, however incrimithe subject of defendant's pleas was a dif-nating, not in the nature of a confession, are ferent and distinct offense from the one here not within the rule of exclusion, and are adcharged, and the demurrers to the pleas were missible without preliminary proof that they well taken and were sustained without erare voluntary. Macon v. State, 179 Ala. 6, ror. Johns v. State, 13 Ala. App. 283, 69 60 South. 312; Read v. State, 195 Ala. 671, South. 259; Id., 195 Ala. 695, 70 South. 71 South. 96; Love v. State, 124 Ala. 82, 27 1013; Hawkins v. State, 1 Port. 475, 27 Am. South. 217. The reason upon which the rule Dec. 641; Gorden v. State, 71 Ala. 315; excluding involuntary confessions as evidence Foster v. State, 39 Ala. 229; Dominick v. rests is that they are coerced by the menace State, 40 Ala. 680, 91 Am. Dec. 496; Harrison of punishment or the excitement of hope, v. State, 36 Ala. 248; Baysinger v. State, and are presumptively fabricated for the 77 Ala. 60; Gunter v. State, 111 Ala. 23, 20 purpose of obtaining benefit or escaping South. 632, 56 Am. St. Rep. 17; State v. threatened punishment arising from the sitStandifer, 5 Port. 523. uation attending the accused. 1 Greenl. Ev. §§ 219-232. [5] Independent of the evidence showing that the defendant made a confession to the witnesses Groggin and Goldstein, the state offered evidence showing that Rose, the owner of the automobile, the stolen property alleged to have been fraudulently brought into this state from the state of Illinois, with the knowledge that it was stolen, placed his automobile in his garage, at 3816 Rokedy street, [9] Where the reason of the rule is absent, the rule is not applicable. Hence we find this exception: Where an involuntary confession or inculpatory admission in the nature thereof leads to the discovery of physical facts which establish the truth of the confession, so much of the confession as relates to the facts thus discovered is admis sible, along with the proof of these facts. clearly tends to show a conspiracy between Stated otherwise: the defendant, his brother L. A. Whitehead, and others, to engage in the unlawful enterprise of collecting and dealing in stolen automobiles, and the statements of L. A. White the title of the automobile in question, were made in furtherance of this unlawful enterprise, and it was permissible to show this against the defendant. Greenl. Ev. (16th Ed.) § 184A; People v. Trim, 39 Cal. 75; Underhill, Cr. Ev. § 454. "Although confessions obtained by threats or promises are not evidence, yet if they are attended by extraneous facts which show that they are true, and such facts go to prove the existence of the crime of which the defendant is sus-head, made to Dr. Moore with reference to pected, they will be received as testimony; e. g., where the party thus confessing points out or tells where the stolen property is; or when he states where the deceased was buried; or gives a clue to other evidence which proves the case. 1 Wharton, Am. Cr. Law, § 695; 1 Phill. Ev. 412; 1 Greenl. Ev. §§ 231, 232. It is not the entire confession, however, which may be received; it is only so much of it as relates strictly to the material facts discovered that may be given in evidence; for the facts have a reasonable tendency to confirm that part of the confession, and to exclude the idea of fabrication under undue influence." Murphy v. State, 63 Ala. 1; Spicer v. State, 69 Ala. 159; Brister v. State, 26 Ala. 107; Sampson v. State, 54 Ala. 241; Banks v. State, supra; Rowell v. State, 166 Ala. 44, 52 South. 310; Anderson v. State, 104 Ala. 83, 16 South. 108; Griggs v. State, 58 Ala. 430, 29 Am. Rep. 762; 1 Greenl. Ev. $$ 231, 232; note, 53 L. R. A. 403-407; 1 R. C. L. p. 589, § 132. [12] It was also permissible to show that the defendant and his confederates stole automobiles other than the one in question, and brought them into the state, not only as evidence tending to show such conspiracy, but to give character to the act of the defendant with respect to the automobile in question. Underhill, Cr. Ev. § 454; Brown v. State, 72 South. 757; Howle v. State, 72 South. 759. "Direct testimony as to the market value is in the nature of opinion evidence. One need not be an expert or dealer in the article, but may testify as to value, if he has had an opportunity of forming a correct opinion." Code 1907, § 3960. Under this rule, it has been repeatedly held that the owner of property who is familiar with it may testify as to its value without other qualification. Cooney v. Pullman Palace Car Co., 121 Ala. 368, 25 South. 712, 53 L. R. A. 690; Ala. Power Co. v. Keystone Lime Co., 191 Ala. 72, 67 South. 833, Ann. Cas. 1917C, 878, and authorities there cited. By an application of these principles, the rulings of the trial court in respect to the admission of the confessions made by the defendant to the witnesses Goldstein and Groggin may be justified, except the statement of the witness Goldstein made in response to the solicitor's question: "What else did he say? Did he say who changed the numbers in that confession?" "He said he changed some of them, and his brother changed some of them"-and the statement of the witness Groggin in response to the question: "Did he or not tell you he drove Mr. Rose's car from Chicago to Birmingham, Ala.?" "He did❞—and the further statement of Groggin: "He told me that he and his brother-in their refusal. in company with his brother, stole a car at the corner of Wabash avenue and Jackson boulevard, and they drove it to a garage, and later on drove it to Birmingham." In Murphy's Case, cited above, it was said: The charges refused to the defendant were either invasive of the province of the jury, argumentative, or covered by the charges given at his request, and we find no error We find no other errors in the record, but for the errors pointed out the judgment is reversed and the cause is remanded. Reversed and remanded. No. 22736. Limited. (143 La. 207) "It was competent to prove that the prisoner stated, or pointed out, the place where the goods might be found, and that the goods were ARTHUR v. ALEXANDRIA LUMBER CO., at the place indicated by him. That is all of the confession, in such case that is competent; and it becomes so only from the fact that its truth is verified by the discovery of the goods. But, if the prisoner had stated, at the same time, that he had taken the goods from the burning house, and put them there, that would be incompetent; it being a part of an extorted, improper confession," not so verified. 63 Ala. 6, column 1. [10] A conspiracy to engage in an unlawful undertaking or enterprise, like any other material fact, may be shown by circumstantial evidence. Brindley v. State, 193 Ala. 43, 69 South. 536, Ann. Cas. 1916E, 177; Newsom v. State, 72 South. 579. [11] The testimony offered by the state, including so much of the defendant's confessions and inculpatory admissions as were admissible under the principles above stated, (Supreme Court of Louisiana. April 1, 1918.) 1. A widow's petition, for damages for death of her husband in service, which did not allege that the death was by accident arising out of and in the course of the employment, showed no cause of action under the Employers' Liability Act (Act No. 20 of 1914). 2. MASTER AND SERVANT 256(1)-DEATH OF SERVANT-PLEADING. In a widow's suit for her husband's death in service when killed by an electric current, natural or generated, when he went into a frame building on the premises of defendant or was forced to take refuge therein from a rain, the petition, which did not explain why defendant was responsible for the husband's being in the building at the time, though stating that the |