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a premeditated design to effect death, as well | but I know he beat there a pretty good while. as its formation, are operations of the mind,

After Thomas struck him with the as to which direct testimony cannot always piping and fence rail, he searched him. He be obtained; consequently, the law recog- found two pocketbooks, a red one and a nizes that it may be proven by circumstantial black one, and a razor blade knife, and he evidence. It will be sufficient proof of such took his cap, a snuff-colored cap—a brown premeditated design if the circumstances cap. He taken the black pocketbook, and proven to exist relate to the acts, declaration, tore it up, and throwed it down side the road. and conduct of the accused, the circumstan- He said the red one was a good one, and put ces attending the homicide, if a homicide was it in his pocket, and put the cap on. He committed, and other circumstances proven kept the pocket knife. There was no money by the evidence bearing upon the question, in the pocketbook. He opened it before me. convince the jury beyond a reasonable doubt* Wilson, he did not have any weapand to a moral certainty of the existence of on, or attempt to use one, on Duke at this such design 'at the time of the homicide, if time. He had nothing but a pocket knife on a homicide was committed, and that such his person. He did not offer to shoot him, or homicide was committed in pursuance of such to strike him, or anything else.

He design."

didn't attempt to do anything before he killed In the motion for new trial, objection him.

No one else was present at taken to the last sentence of that part of the the time of the killing but myself, Wilson, court's charge quoted above; but we find no and Duke Thomas. The first time Thomas error there.

hit Wilson right there (illustrating in his The defendant contends that the verdict head). He hit him on the forehead. The is contrary to the evidence, the law, and the second time he hit him right along there (ilcharge of the court, and that the evidence is lustrating). He hit him both times with the insufficient to sustain the verdict.

pipe. The next time he hit him in the mouth We have read and considered the evidence with a piece of burnt rail.” with the care it deserves in view of the death

W. A. Lewis testified as to the defendant's sentence imposed. The defendant testified in behalf of him. killed him with that piece of piping.

confession in part as follows: "He said he self: "I remember the killing that occurred He said, while the nigger was getting out the at Cypress. The day it occurred Cleveland cards, he hit him with this piece of pipe. He Holmes and I and Wilson had been gambling, said: 'You see this cap? That is this nigall of us. It first began Friday night, and

ger's cap. I hit him across the head with I broke them all, and that is how it was. I had a fuss with Wilson on Friday night, and hole? I bursted his head. He said that he

this, and bursted his head. You see that he tried to cut my throat. On Sunday morning, I saw him again.

He came to got a piece of fence rail and beat him over the head with the rail.

He said the shanty where we were.

He said: “Let us go off and gamble some.'

something about the nigger Holmes—asked I went off to gamble.

At the time us if we had Holmes in jail. I told him, of the killing Wilson was facing me.

'Yes.' He said: 'Well, you might just as well We were playing the game. Holmes was

turn that nigger out. He never had anything

to do with it.

After all gambling, too, like the rest of us.

He said his life is sweet to the money was out, I said: 'Let us stop.

him.'

He said: 'I want the judge to bang You have no more money, nohow. I want me now.' He said: 'If I knew then what I to stop.' He said: 'You ain't going to leave know now, you all would have to shoot me. here with all that money.'

He said

I would have run to make you shoot me and for me to give up the money which I had kill me; but I was afraid you would shoot

Duke won from him. I told him that I would die me up and make me suffer.' before I would give it up.”

claimed that the negro Cleveland Holmes had The defendant stated, further, to the jury nothing to do with it; but, when Duke got that he struck the deceased with the fence to Marianna, he said that Cleveland went rail. The defendant claimed he struck de- and got the rail.

He did not say: ceased in self-defense, that deceased drew | 'I will take all the blame on myself.' Не his knife and tried to cut defendant, and said: 'You had just as well turn him loose, that Cleveland struck deceased twice with if you have him in jail.' He acknowledged the iron piping, and defendant was trying to it at first, and, then when we got him near get loose from deceased, who had defend-town he said the other negro went and got ant by the neck and his knife on him. But the rail.” Cleveland denied this, and testified that the The jury believed the evidence for the defendant struck deceased with a piece of state, and we see no reason why they should piping and a fence rail. “He hit him with not have done so, and we think it sufficient that piece of pipe, hit him there (illustrating). to support the verdict. Wilson fell over.

He got a piece of Finding no error, the judgment is affirmed. burnt rail, and wore him out with that about all concur, except TAYLOR, J., absent on ac.

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(164 Ala. 572)

Code of 1907) provides for a conditional SUN INS. CO. OF NEW ORLEANS v. DOS- judgment only to be rendered against him,

TER-NORTHINGTON DRUG CO. and for notice to be served on him requir(Supreme Court of Alabama. Dec. 16, 1909.) ing him to answer within the first three days 1. GABNISHMENT ($ 178*) — JUDGMENT - DE- of the next term of the court, and if he fails FAULT JUDGMENT.

after notice, etc., the conditional judgment Code 1907, § 4324, provides for a condi- is made final. In case the garnishee antional judgment against the garnishee if he does not appear and answer, which shall be swers indebted, the statute provides for come final if he does not do so after notice is judgment on such answer. Code 1907, 8 4320 served requiring him to answer within the first et seq. The statute also provides for the three days of the next term. Section 4320 and plaintiff or defendant in the main suit to the following sections provide for judgment on an answer of indebtedness. Section 4325 and contest the answer of the garnishee (Code the following sections provide for the contest 1907, § 4325 et seq.), and provides for judgof the garnishee's answer by plaintiff or defend- ment on such contest. Code 1907, § 4327. ant, and section 4327 provides for judgment on such contest. Held that, where the garnish- The statutes do not provide for judgment by ee answered, denying the indebtedness, a default default, such as was rendered against the judgment could not be entered against him be- garnishee in this case. fore an issue was made on the denial of the indebtedness.

The garnishee having

answered, [Ed. Note.-For other cases, see Garnishment, denying all indebtedness or liability to the Cent. Dig. 88 329–334; Dec. Dig. 178.*] defendant, and the plaintiff having contro 2. GARNISHMENT (162*)-BURDEN OF PROOF verted the answer of the garnishee, by mak-INDEBTEDNESS OF GARNISHEE.

ing oath that "he believes it to be untrue," On a contest of garnishee's answer, denying as provided by section 4325 of the Code, an indebtedness to defendant, the burden is upon issue should have been made up under the plaintiff to show such indebtedness.

[Ed. Note.-For other cases, see Garnishment, direction of the court, in which the plaintiff Cent. Dig. $ 300; Dec. Dig. $ 102.*]

alleged in what respect the answer was un3. GARNISHMENT ($ 178*) — JUDGMENT-DE-true; and if required by either party a jury FAULT JUDGMENT.

Garnishment being a proceeding by which may be impaneled to try such issue. If the funds due a debtor are made liable to his debts, issue is thus made up under the direction of an ordinary default judgment against the gar- the court, and the plaintiff alleges in what nishee and writ of inquiry executed are not respect the answer is untrue, and the garadapted to the proceedings. [Ed. Note.--For other cases, see Garnishment, ter into or proceed with the contest, a judg.

nishee should, after proper notice, fail to enCent. Dig. 88 329-334; Dec. Dig. 178.*]

ment nil dicit could probably be rendered Appeal from City Court of Gadsden; John against him; but certainly a judgment by H. Disque, Judge.

default should not be rendered against him, Assumpsit by the Doster-Northington Drug before an issue is made up and without the Company against 0. H. Saxon, in which the plaintiff's alleging in what respect the an. Sun Insurance Company of New Orleans swer is untrue, because the statute requires was made garnishee. Judgment by default this much to be done before any judgment in was taken against Saxon, and, the answer of such case can be rendered. In a case like the Sun Insurance Company denying the in- this, on a contest of the answer which dedebtedness being contested, a judgment nies all indebtedness or liability, the burden against the garnishee by default was render- of proof is upon the plaintiff to show a debt ed, which recited that the garnishee failed or liability due from the garnishee to the deto appear and answer the contest of the an- fendant. Curtis v. Parker, 136 Ala. 221, 33 swer of said garnishee. The garnishee ap-South. 935. peals. Reversed and remanded.

When the answer of the garnishee is conCulli & Martin, for appellant. George D. tested by plaintiff, he must tender an issue, Motley, for appellee.

and until that issue is tendered he cannot

claim a judgment by default. The answer MAYFIELD, J. A judgment by default denying all liability or indebtedness, of course cannot be rendered against a garnishee who no judgment could be rendered on it against has fully answered and denied all indebted- | the garnishee for any amount. The mere ness or liability. Garnishment is purely a

fact that it was controverted only authoriz. statutory proceeding, and judgment by deed a contest, not a judgment by default. fault against the garnishee is not provided The plaintiff is then in no better condition for in our statutory proceedings; and cer- against the garnishee than he would be tainly such judgment is unwarranted, after against a defendant whom he had brought the garnishee has answered fully, as requir- | into court, but against whom he had filed ed by the statute and as directed by the no declaration or complaint. As was well writ, and in such answer has denied all in- said by Chief Justice Stone, in the case of debtedness and all possible liability to the Lehman-Durr Co. v. Hudmon Bros., 79 Ala. defendant. If the garnishee fails to appear 535: “Garnishment is a suit, but not for the and answer, the statute (section 4324 of the collection of a debt due from the garnishee

to the plaintiff.” It asserts no such claim. I to show that during the time defendant pass It is a proceeding by which a debtor's dues ed a bottle to Elder, Elder handed a dollar to are attached and made liable to his debts. defendant, and defendant returned a 25-cent Ordinary judgment by default and writ of piece to Elder. This occurred after night, so inquiry executed are not adapted to its ad- that the witnesses' observation of the transministration.

action was more or less obscured. ContinuIt is unnecessary to pass upon the other ing, the witnesses deposed that, immediately questions. They have in each case been upon the return of defendant and Elder into waived, or are unnecessary to a decision the pool room, witnesses, who were officers, The judgment is reversed, and the cause re- went into the pool room and arrested them. manded, on the authority of Lebman-Durr Defendant and Elder were carried straightCo. v. Hudmon Bros., supra, and Elmore v. way to police headquarters, where they were Simon, 67 Ala. 526.

searched in the presence of the prosecuting Reversed and remanded.

witnesses. Over the objection and exception

of defendant, interposed to the statement of DOWDELL, O. J., and SIMPSON and Mc-each fact as it was stated, these witnesses CLELLAN, JJ., concur.

were permitted by the court to testify that

when Elder was searched whisky was found (164 Ala 631)

on him; that two bottles of whisky, both full KELLY V. CITY OF ANNISTON. and alike, were found upon the person of the (Supreme Court of Alabama. Jan. 13, 1910.) defendant; that the bottles contained whisky. 1. INTOXICATING LIQUORS ($ 233*)-EVIDENCE

We think that nothing more than the statement -RELEVANCY-MATERIALITY.

of the facts which we have made is needful In a prosecution for selling, whisky con: to demonstrate the relevancy and materiality trary to a city ordinance, where defendant and of the testimony, and the propriety of the the buyer, shortly after the alleged sale, were arrested and straightway taken to police head- several rulings made by the trial court. quarters and searched, evidence that, when the There was no error in that other ruling of buyer was searched, whisky was found on him, the court, to which exception was reserved, and that two bottles of whisky, both full and by which defendant was denied the right to alike, were found upon defendant, was relevant and material.

have an answer to his question to the wit[Ed. Note.-For other cases, see Intoxicating ness McClellan: "Did Elder tell you where Liquors, Cent. Dig. 88 293–297; Dec. Dig. 8 he was going when he left the house?” That 233.*]

was two to three hours before the transaction 2. CRIMINAL LAW (8 368*)— EVIDENCE-PABT deposed to by the witnesses for the prosecuOF TRANSACTION.

In a prosecution for selling whisky contra- tion, and was in no sense a part of that transry to a city ordinance, it was not error to re-action. What Elder said could have been in. fuse to allow a witness to testify as to where dicative of his purpose only. He, in common the buyer said he was going when he left the with the defendant and all the other withouse; it appearing that it was two or three hours before the sale and in no sense part of nesses, testified that he was present at the that transaction.

time and place in question. We are unable [Ed. Yote.-For other cases, see Criminal Law, Cent. Dig. 8806, 812, 815, 821; Dec. to discern how Elder's statement, made two Dig. & 368.*]

or three hours previously, that he was going 3. CRIMINAL LAW (8 1158*)-APPEAL-Evi- elsewhere, as we will assume, could shed light DENCE-CREDIBILITY.

upon the inquiry whether Kelly had sold him Where the evidence was ample to support whisky. a conviction, its credibility was for the trial court, and the court on appeal cannot interfere.

As for the other contention, that the great (Ed. Note.--For other cases, see Criminal weight of the evidence favored the innocence Law, Cent. Dig. $ 3074; Dec. Dig. $ 1158.*] of the defendant, it must be said that there

Appeal from City Court of Anniston; was ample evidence upon which to found the Thomas W. Coleman, Jr., Judge.

judgment of guilt, its credibility was for the W. O. Kelly was convicted of selling whisky trial court, and we cannot interfere with the

result. contrary to a city ordinance, and he appeals.

Affirmed.
Affirmed.
Tate & Walker, for appellant. O. H. Young,

DOWDELL, C. J., and ANDERSON and for appellee.

EVANS, JJ., concur.

SAYRE, J. Appellant was convicted of selling whisky contrary to the ordinance of

(165 Ala. 71) the city of Anniston. Witnesses for the prose

STREETY V. STATE. cution testified that, while they were look- (Supreme Court of Alabama. June 30, 1909. ing through cracks in a fence into an alley

Rehearing Denied Dec. 16, 1909.) in the rear of a pool room in the city of An- 1. HOMICIDE ($ 166*)-EVIDENCE — ADMISSIniston, they saw defendant and one Elder

BILITY - CIRCUMSTANTIAL EVIDENCE – - Mo

TIVE. emerge from the pool room and stand to

In a prosecution for murder of defendant's gether in conversation. Their testimony went' wife, where the evidence with regard to the

killing was entirely circumstantial, evidence, error in this. The evidence with regard to that defendant told witness, about a week be the killing was entirely circumstantial, and, fore the death of his wife, that she was going to give birth to a child ; that times were bard in forming a chain of circumstantial evidence, and work cheap; and 'that he did not know many circumstances, whose probative force is how he was going to get along- was admissibie, very slight, must be allowed. Although the since, in forming a chain of circumstantial era probative force of this testimony was slight, dence, many circumstances whose probative force is very slight must be allowed, and this yet, in connection with other facts, it might testimony, in connection with other facts, might have a bearing on the question of motive, have a bearing on the question of motive.

and was properly admitted. Sanders v. State, [Ed. Note.-For other cases. see Homicide, 134 Ala. 83, 32 South. 654; Kelsoe v. State, Cent. Dig. SS 320, 326; Dec. Dig. 8 166.*]

47 Ala. 573, 598; Overstreet v. State, 46 2. HOMICIDE ($ 338*)-APPEAL-ADMISSION OF EVIDENCE-HARMLESS ERROR.

Ala. 30, 34, In a prosecution for wife murder, any er While the question asked to the witness rors in allowing questions whether defendant Richardson as to whether the defendant went went to sleep, after they had searched for his wife until 3 o'clock in the morning and were to sleep (after they had searched for his wife all resting on the porch, whether, during the until 3 o'clock in the morning and were all search, he said what he thought had become of resting on the porch), and the answer therehis wife, and the answer, “No, he did not,” and to, do not seem to have any bearing on the whether he made any suggestion about where to search, and the answer that he did not, were

case, yet we cannot see, on the other hand, harmless.

how it could work any injury to the defend[Ed. Note.-For other cases, see Homicide, ant. Consequently the court cannot be put Cent. Dig. $8 709–713; Dec. Dig. $ 338.*]

in error for overruling the objection, 3. HOMICIDE ($ 174*) — ADMISSION OF Evi The same is true with regard to the quesDENCE-CIRCUMSTANTIAL EVIDENCE.

Evidence that defendant exclaimed, “Oh! tion to the same witness as to whether, durshe is shot!" and that he said nothing when it ing the search, the defendant said what he was proposed to send for dogs, and that he did thought had become of his wife, and the renot offer to contribute any money to send for ply, "No, he did not.” Also with regard to them, was admissible, as being slight circumstances forming the chain of circumstantial evi- the question to the witness Pope as to whethdence.

er the defendant made any suggestion about [Ed. Note.-For other cases, see Homicide, where to search, and the answer that he did Cent. Dig. 88 359, 367-369; Dec. Dig. $ 174.*] not. As to the refusal to exclude from the 4. HOMICIDE (8 338*)-APPEAL-ADMISSION OF jury the exclamation of the defendant, “Oh! EVIDENCE-HARMLESS ERROR.

The admission of evidence that defendant she is shot!” while it was a slight circumtold the witness that he never expected to go stance, yet, in accordance with what has been with anotber girl, when he was drunk, several said about circumstantial evidence, it was addays after his wife's death, was harmless error. missible, as was also the fact that the defend

[Ed. Note. For other cases, see Homicide, ant said nothing when it was proposed to Cent. Dig. 88 703, 710; Dec. Dig. $ 338.*] 5. CRIMINAL LAW ($ 1169*)--APPEAL-HARM to contribute any money to send for the dogs.

send for the dogs, and that he did not offer LESS ERROR-EVIDENCE.

Any error in asking a witness whether he The remark by defendant to the witness told another, on the day of the preliminary Barber that he never expected to go with antrial, as to what another witness would swear, other girl, when he was drunk, made several was harmless. [Ed. Note.-For other cases, see Criminal

days after his wife's death, was harmless, Law, Cent. Dig. $ 3137; Dec. Dig. $ 1169.*]

and there was no error in the refusal to ex

clude it. The same is true as to the question Appeal from Circuit Court, St Clair Coun- to the witness Barber as to whether he had ty; John W. Inzer, Judge.

told Mr. Starner on the day of the prelimWalter Streety was convicted of murder in inary trial as to what Tom Roberts would the first degree, and he appeals. Affirmed.

Howard & Hunt, for appellant. Alexander There being no error apparent on the recM. Garber, Atty. Gen., for the State.

ord, the judgment of the court is affirmed.

Affirmed. SIMPSON, J. The appellant was convicted of the crime of murder in the first degree, DOWDELL, C. J., and ANDERSON and and his punishment fixed at imprisonment MAYFIELD, JJ., concur. in the penitentiary for life.

The person murdered was the defendant's wife, and the witness Bland was allowed to

(164 Ala, 294) testify that the defendant had said to him,

GRAY V. D. P. HAYNES & BRO. about a week before the death of his wife,

Dec. 16, 1909.) that she was going to give birth to a child, (Supreme Court of Alabama. that times were hard and work cheap, and 1. CHATTEL MORTGAGES (8 170*)-ACTION BY

MORTGAGEE-EVIDENCE. he (the defendant) did not know how he was going to get along. This was objected to, mortgagor in a designated county during a

A mortgagee of an entire crop raised by the and the objection overruled. There was no 1 year must, to maintain trover for the conversion

Swear.

see

of bales of cotton, show that the cotton was rest their rights in the premises upon two grown by the mortgagor in the county.

mortgages executed by M. W. Johnson to [Ed. Yote.-For other cases, Chattel them. These mortgages, it seems to be conMortgages, Cent. Dig. $ 305; Dec. Dig. $ 170;* Trover and Conversion, Cent. Dig. § 140.)

ceded, covered agricultural products, raised

as described therein, grown “in Calhoun coun2. APPEAL AND ERROR (8 904*)-PRESUMPTION -BILL OF EXCEPTIONS_RECITAL-EFFECT. | ty, Ala.," and not elsewhere. It is recited

A recital in a bill of exceptions that all the in the bill of exceptions that all of the evievidence and all that the evidence tended to dence, and all that the evidence tended to show was set out therein excluded the inference that evidence not set out in the bill of ex- show, is set out therein. There is nothing ceptions, but essential to sustain the judgment, in the bill tending in any sense to show was given, and the judgment must be reversed. that the cotton in question was grown in

[Ed. Note.--For other cases, see Appeal and Calhoun county, or, for that matter, where Error, Cent. Dig. $ 3671 ; Dec. Dig. $ 904.*]

it was grown. As appears from the opinion 3. SALES ($ 263*)-WARRANTY OF TITLE.

on former appeal, there was testimony tendIn the absence of anything to the contrary, a sale of a chattel carries the implication of ing to establish that essential fact, in order & warranty of title thereto.

to show that title in, and right to the posses[Ed. Note. For other cases, see Sales, Cent. sion of, the cotton necessary to plaintiffs' Dig. $ 749; Dec. Dig. & 263.*]

maintenance of the action. But, though the 4. SALES (§ 232*)—RIGHTS OF BUYER AS TO fact was as indicated, we cannot ignore

THIRD PERSONS LIENS ON PROPERTY- the stated affirmative recital of the bill of BREACH OF WARRANTY-CONVERSION.

Where a debtor delivered to his creditor exceptions, which excludes any inference or an animal on which there was a mortgage assumption that the evidence tended to es. and obtained a credit therefor, the act of the tablish the fact that the cotton was grown creditor in subsequently procuring an assign-in Calhoun county. In the absence of eviment of the mortgage by paying the mortgagee the amount of his debt operated to toll the dence in support of the stated fact, the judgcredit to the extent of the amount due on the ment cannot stand, since without some tendmortgage, and, where the debtor insisted on the ency in the proof of that fact the plaintiffs creditor taking up the mortgage, one who converted the property could not complain of the had no such title and right to the cotton as seller's breach of warranty of title.

would, under familiar law, support an action [Ed. Note.- For other cases, see Sales, Cent. by them for the alleged conversion. Dig. 8 652; Dec. Dig. $ 232.*]

There is no merit in the errors assigned Appeal from City Court of Anniston; T. as upon testimony admitted in respect of the W. Coleman, Jr., Judge.

Frye mortgage, given by Johnson upon the Action by D. P. Haynes & Bro. against animal and incumbering it when plaintiffs W. C. Gray for conversion. From a judg- accepted it and credited Johnson's indebtedment for plaintiffs, defendant appeals. Re

ness to them with the agreed value, namely, versed and remanded.

$100. In the absence of anything to the

contrary, and that was the state of the case The plaintiffs relied upon two mortgages in this instance, the sale of a chattel carries executed by M. W. Johnson to them, convey the implication of a warranty of title thereing the entire agricultural crop grown or to. Williamson V. Sammons, 34 Ala. 691 ; raised by him or his tenants in Calhoun Ricks v. Dillahunty, 8 Port. (Ala.) 134. The county, Ala., during the year 1903. It fur- breach of that warranty was here present, ther appears from the evidence that the ac- and the practical effect of the warrantee's count was nearly paid, and that in the pay act in procuring the assignment for the value ment of the account a mule was delivered of the Frye mortgage, the existence of which to plaintiffs by Johnson, for which he receiv- wrought the breach, was to toll the credit to ed a credit of $100. It afterwards developed the extent of the amount due on the outthat one Frye had a mortgage on this mule standing mortgage. Furthermore, the testifor a balance due of $79.99, and on learning mony shows that Johnson insisted on plainthis plaintiffs paid Frye this amount, and tiffs taking up the Frye mortgage. Cerhad the mortgage transferred to them, and tainly, if Johnson, in good faith that does charged this amount to Johnson's account. not appear to be doubted, was willing to This mortgage transferred was offered in save loss to the plaintiffs from his breach evidence and objected to.

of warranty, the alleged tort-feasor cannot Matthews & Matthews, for appellant. Knox, complain. Acker, Dixon & Blackmon, for appellees. The judgment is reversed on the sole

ground indicated before. The cause is re MCCLELLAN, J. While not officially re- manded, as right demands, in this instance, ported, the conclusions reached on former should be done. appeal of this case may be found in 41 South. Reversed and remanded. 615.

The action is trover, for the conversion of DOWDELL, C. J., and SIMPSON and a number of bales of cotton. The plaintiffs | MAYFIELD, JJ., concur. •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

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