* *

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. * 串 * He design." didn't attempt to do anything before he killed him. * * * No one else was present at the time of the killing but myself, Wilson, and Duke Thomas. The first time Thomas hit Wilson right there (illustrating in his head). He hit him on the forehead. The second time he hit him right along there (illustrating). He hit him both times with the pipe. The next time he hit him in the mouth with a piece of burnt rail."

In the motion for new trial, objection is taken to the last sentence of that part of the court's charge quoted above; but we find no error there.

The defendant contends that the verdict is contrary to the evidence, the law, and the charge of the court, and that the evidence is

insufficient to sustain the verdict.

We have read and considered the evidence

with the care it deserves in view of the death sentence imposed.

The defendant testified in behalf of himself: "I remember the killing that occurred at Cypress. The day it occurred Cleveland Holmes and I and Wilson had been gambling, all of us. It first began Friday night, and I broke them all, and that is how it was. I

had a fuss with Wilson on

Friday night, and

On Sunday morn-
* He came to

he tried to cut my throat.
ing, I saw him again.
the shanty where we were.
said: "Let us go off and gamble some.'

* He

*

W. A. Lewis testified as to the defendant's killed him with that piece of piping. confession in part as follows: "He said he He said, while the nigger was getting out the cards, he hit him with this piece of pipe. He said: 'You see this cap? That is this nigger's cap. I hit him across the head with hole? I bursted his head.' He said that he this, and bursted his head. You see that got a piece of fence rail and beat him over the head with the rail. * * He said 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. *
We were playing the game. Holmes was
gambling, too, like the rest of us. After all
the money was out, I said: 'Let us stop.
You have no more money, nohow. I want
to stop.' He said: 'You ain't going to leave
here with all that money.'

He said

for me to give up the money which I had won from him. I told him that I would die before I would give it up."

The defendant stated, further, to the jury that he struck the deceased with the fence rail. The defendant claimed he struck deceased in self-defense, that deceased drew his knife and tried to cut defendant, and that Cleveland struck deceased twice with the iron piping, and defendant was trying to get loose from deceased, who had defendant by the neck and his knife on him. But Cleveland denied this, and testified that the defendant struck deceased with a piece of piping and a fence rail. "He hit him with that piece of pipe, hit him there (illustrating). Wilson fell over. * * * He got a piece of burnt rail, and wore him out with that about

'Yes.' He said: 'Well, you might just as well
turn that nigger out. He never had anything
He said his life is sweet to
to do with it.
him.' He said: 'I want the judge to hang
me now.' He said: 'If I knew then what I

know now, you all would have to shoot me.
I would have run to make you shoot me and
kill me; but I was afraid you would shoot
* * Duke
me up and make me suffer.'
claimed that the negro Cleveland Holmes had
nothing to do with it; but, when Duke got
to Marianna, he said that Cleveland went
* He did not say:
and got the rail.
'I will take all the blame on myself.' He
said: 'You had just as well turn him loose,
if you have him in jail.' He acknowledged
it at first, and, then when we got him near
town he said the other negro went and got
the rail."

*

The jury believed the evidence for the state, and we see no reason why they should not have done so, and we think it sufficient to support the verdict.

Finding no error, the judgment is affirmed. All concur, except TAYLOR, J., absent on ac.

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.

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

to the plaintiff." It asserts no such claim. | to show that during the time defendant passIt 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. Continuing, the witnesses deposed that, immediately upon the return of defendant and Elder into the pool room, witnesses, who were officers, went into the pool room and arrested them.

It is unnecessary to pass upon the other questions. They have in each case been waived, or are unnecessary to a decision The judgment is reversed, and the cause remanded, on the authority of Lehman-Durr | Defendant and Elder were carried straightCo. v. Hudmon Bros., supra, and Elmore v. Simon, 67 Ala. 526.

Reversed and remanded.

way to police headquarters, where they were searched in the presence of the prosecuting witnesses. Over the objection and exception of defendant, interposed to the statement of DOWDELL, C. J., and SIMPSON and Mc- each fact as it was stated, these witnesses CLELLAN, JJ., concur.

(164 Ala. 631)

KELLY v. CITY OF ANNISTON. (Supreme Court of Alabama.

Jan. 13, 1910.) 1. INTOXICATING LIQUORS (§ 233*)-EVIDENCE

-RELEVANCY-MATERIALITY.

In a prosecution for selling whisky contrary to a city ordinance, where defendant and the buyer, shortly after the alleged sale, were arrested and straightway taken to police' headquarters and searched, evidence that, when the buyer was searched, whisky was found on him, and that two bottles of whisky, both full and alike, were found upon defendant, was relevant and material.

[Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. 88 293-297; Dec. Dig. 8 233.*]

2. CRIMINAL LAW (§ 368*)-EVIDENCE-PART

OF TRANSACTION.

were permitted by the court to testify that when Elder was searched whisky was found on him; that two bottles of whisky, both full and alike, were found upon the person of the defendant; that the bottles contained whisky. We think that nothing more than the statement of the facts which we have made is needful to demonstrate the relevancy and materiality of the testimony, and the propriety of the several rulings made by the trial court.

There was no error in that other ruling of the court, to which exception was reserved, by which defendant was denied the right to

have an answer to his question to the witness McClellan: "Did Elder tell you where he was going when he left the house?" That was two to three hours before the transaction

deposed to by the witnesses for the prosecuIn 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 infuse to allow a witness to testify as to where the buyer said he was going when he left the house; it appearing that it was two or three hours before the sale and in no sense part of that transaction.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 806, 812, 815, 821; Dec. Dig. 368.*]

3. CRIMINAL LAW (§ 1158*)-APPEAL-EVIDENCE-CREDIBILITY.

see

Where the evidence was ample to support a conviction, its credibility was for the trial court, and the court on appeal cannot interfere. [Ed. Note. For other cases, Criminal Law, Cent. Dig. § 3074; Dec. Dig. § 1158.*] Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

W. O. Kelly was convicted of selling whisky contrary to a city ordinance, and he appeals. Affirmed.

Tate & Walker, for appellant. C. H. Young, for appellee.

dicative of his purpose only. He, in common with the defendant and all the other witnesses, testified that he was present at the time and place in question. We are unable to discern how Elder's statement, made two or three hours previously, that he was going elsewhere, as we will assume, could shed light upon the inquiry whether Kelly had sold him whisky.

As for the other contention, that the great weight of the evidence favored the innocence of the defendant, it must be said that there was ample evidence upon which to found the judgment of guilt, its credibility was for the trial court, and we cannot interfere with the

result.

Affirmed.

DOWDELL, C. J., and ANDERSON and EVANS, JJ., concur.

(165 Ala. 71)

STREETY v. STATE.
June 30, 1909.
(Supreme Court of Alabama.
Rehearing Denied Dec. 16, 1909.)

SAYRE, J. Appellant was convicted of selling whisky contrary to the ordinance of the city of Anniston. Witnesses for the prosecution testified that, while they were looking through cracks in a fence into an alley in the rear of a pool room in the city of An- 1. HOMICIDE (§ 166*)-EVIDENCE-ADMISSIniston, they saw defendant and one Elder emerge from the pool room and stand together in conversation. Their testimony went

BILITY CIRCUMSTANTIAL EVIDENCE- Mo

TIVE.

In a prosecution for murder of defendant's wife, where the evidence with regard to the

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 359, 367-369; Dec. Dig. § 174.*] 4. HOMICIDE (§ 338*)-APPEAL-ADMISSION OF EVIDENCE-HARMLESS ERROR.

The admission of evidence that defendant told the witness that he never expected to go with another girl, when he was drunk, several days after his wife's death, was harmless error. [Ed. Note. For other cases, see Homicide, Cent. Dig. 88 709, 710; Dec. Dig. § 338.*] 5. CRIMINAL LAW (§ 1169*)-APPEAL-HARM

LESS ERROR-EVIDENCE.

Any error in asking a witness whether he told another, on the day of the preliminary trial, as to what another witness would swear, was harmless.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 3137; Dec. Dig. § 1169.*]

Appeal from Circuit Court, St Clair County; John W. Inzer, Judge.

Walter Streety was convicted of murder in the first degree, and he appeals. Affirmed.

Howard & Hunt, for appellant. Alexander M. Garber, Atty. Gen., for the State.

SIMPSON, J. The appellant was convicted of the crime of murder in the first degree, and his punishment fixed at imprisonment in the penitentiary for life.

The person murdered was the defendant's wife, and the witness Bland was allowed to testify that the defendant had said to him, about a week before the death of his wife, that she was going to give birth to a child, that times were hard and work cheap, and he (the defendant) did not know how he was going to get along. This was objected to, and the objection overruled. There was no

of bales of cotton, show that the cotton was grown by the mortgagor in the county.

[Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. § 305; Dec. Dig. § 170;* Trover and Conversion, Cent. Dig. § 140.]

rest their rights in the premises upon two mortgages executed by M. W. Johnson to them. These mortgages, it seems to be conceded, covered agricultural products, raised as described therein, grown "in Calhoun coun2. APPEAL AND ERROR (§ 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, was given, and the judgment must be reversed. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3671; Dec. Dig. § 904.*] 3. SALES (8 263*)-WARRANTY OF TITLE. In the absence of anything to the contrary. a sale of a chattel carries the implication of a warranty of title thereto.

[Ed. Note. For other cases, see Sales, Cent. Dig. 749; Dec. Dig. § 263.*]

in the bill tending in any sense to show that the cotton in question was grown in Calhoun county, or, for that matter, where it was grown. As appears from the opinion on former appeal, there was testimony tending to establish that essential fact, in order to show that title in, and right to the possession of, the cotton necessary to plaintiffs' 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 esI 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 credit to the extent of the amount due on the mortgage, and, where the debtor insisted on the creditor taking up the mortgage, one who converted the property could not complain of the seller's breach of warranty of title.

[Ed. Note.-For other cases, see Sales, Cent. Dig. § 652; Dec. Dig. § 232.*]

Appeal from City Court of Anniston; T. W. Coleman, Jr., Judge.

Action by D. P. Haynes & Bro. against W. C. Gray for conversion. From a judgment for plaintiffs, defendant appeals.

versed and remanded.

dence in support of the stated fact, the judgment cannot stand, since without some tendency in the proof of that fact the plaintiffs had no such title and right to the cotton as would, under familiar law, support an action by them for the alleged conversion.

There is no merit in the errors assigned as upon testimony admitted in respect of the Frye mortgage, given by Johnson upon the animal and incumbering it when plaintiffs accepted it and credited Johnson's indebtedRe-ness to them with the agreed value, namely, $100. In the absence of anything to the contrary, and that was the state of the case in this instance, the sale of a chattel carries the implication of a warranty of title thereto. Williamson v. Sammons, 34 Ala. 691; Ricks v. Dillahunty, 8 Port. (Ala.) 134. The breach of that warranty was here present, and the practical effect of the warrantee's

The plaintiffs relied upon two mortgages executed by M. W. Johnson to them, conveying the entire agricultural crop grown or raised by him or his tenants in Calhoun county, Ala., during the year 1903. It further appears from the evidence that the account was nearly paid, and that in the pay-act in procuring the assignment for the value ment of the account a mule was delivered to plaintiffs by Johnson, for which he received a credit of $100. It afterwards developed that one Frye had a mortgage on this mule for a balance due of $79.99, and on learning this plaintiffs paid Frye this amount, and had the mortgage transferred to them, and charged this amount to Johnson's account. This mortgage transferred was offered in evidence and objected to.

Matthews & Matthews, for appellant. Knox, Acker, Dixon & Blackmon, for appellees.

of the Frye mortgage, the existence of which wrought the breach, was to toll the credit to the extent of the amount due on the outstanding mortgage. Furthermore, the testimony shows that Johnson insisted on plaintiffs taking up the Frye mortgage. Certainly, if Johnson, in good faith that does not appear to be doubted, was willing to save loss to the plaintiffs from his breach of warranty, the alleged tort-feasor cannot complain.

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. 615.

The action is trover, for the conversion of

Reversed and remanded.

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