the defendant when the trial was entered up- [3-5] To relieve the trial court of the imon, and describes the trial as a continuous, putations of error founded upon its refusal uninterrupted proceeding until the judgment of the court was pronounced after the return of the verdict by the jury. The record sufficiently shows that the defendant was present in person when the verdict was returned into court. Banks & Wood v. State, 72 Ala. 522; Dix v. State, 147 Ala. 70, 41 South. 924. to give several written charges requested by No error is found in the record. PELHAM, J., not sitting. (1 Ala. App. 174) HIGDON v. STATE. 1. LARCENY (8 70*)-INSTRUCTIONS-IGNORING ISSUES. [2] During the progress of the trial, while the evidence was being submitted to the jury, it was reported to the court that a member of the jury was sick or ill. Thereupon the court directed the jury to repair to the jury room, adjoining the courtroom, and a physician who was present as a witness for the prosecution was permitted to go into the jury room to see the sick juror. The physician gave the sick juror some medicine, he did not talk to him about anything except his sickness, and no conversation took place between him and any other juror. The bill of exceptions recites: "After this the juryman got better, and the cause proceeded, and he remained on the jury and was one of the 12 jurymen who rendered the verdict of guilty in this cause." After the verdict had been rendered and the court had sentenced the defendant in pursuance thereof, the incident just mentioned was made the basis of motions by the defendant for his discharge from custody, that the verdict be quashed, (Appellate Court of Alabama. June 30, 1911.) that a new trial be granted, and for a judg ment of not guilty non obstante veredicto. It is not intimated that before his conviction the defendant made any objection to anything that was done in connection with the incident above mentioned. Conceding that the action of the court in overruling all or any of the above-mentioned motions of the defendant is presented for review on this appeal, and that the facts detailed afforded ground for an inference that defendant might have been prejudiced in some way by what occurred, yet the defendant, by failing to interpose any objection at the time or in any way to call to the attention of the court an incident occurring with his knowledge and, in part at least, in his presence, and thereafter taking part in the trial just as if nothing affecting its regularity had happened, waived any objection he might have made on account of such incident; and he could not afterwards, when the trial had resulted unfavorably to him, urge that incident as a ground for impeaching the regularity of the proceedings. In a prosecution for larceny of machine belting, there was evidence from which the jury might have found that a belt found in the sawdust pile of the prosecuting witness, and in evidence, was the one which accused had stolen and had hidden there to divert suspicion, and also that another similar belt which accused had had in his own mill, and which had since been burned with the mill, was the stolen belt. Held, that the court properly refused to instruct for acquittal in case the jury believed that the prosecuting witness and accused each owned a belt of a certain description, and that the one in evidence was that of the prosecuting witness, and that the one accused had was burned. [Ed. Note.-For other cases, see Larceny, Cent. Dig. § 185; Dec. Dig. 70.*] 2. CRIMINAL LAW (§ 761*)—INSTRUCTIONSASSUMING FACTS. In a larceny trial, an instruction which assumed that accused had a certain machinery belt which he claimed was burned was properly did not have it. refused, where there was some evidence that he [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1754-1764; Dec. Dig. 8 761;* Larceny, Cent. Dig. § 201.] 3. LARCENY (§ 32*) - ACCUSATION -OWNER The ownership of property stolen is properly laid in the party in possession either as conditional owner or bailee. [Ed. Note.-For other cases, see Larceny, Cent. Dig. § 84; Dec. Dig. § 32.*] SHIP. He could not, speculating on what the verdict might be, silently sit by, apparently acquiescing in what was done, and subsequently make the occurrence the basis of an attack upon the integrity of the trial. Gurney v. Minneapolis & St. Croix Ry. Co., 41 Minn. 223, 43 N. W. 2; Grove v. City of Kansas, 75 Mo. 672; Tinkle v. Dunivant, 16 Lea, 503; 29 Cyc. 813. Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge. Thomas W. Higdon was convicted of grand larceny, and he appeals. Affirmed. The tendencies of the evidence are suf- that the defendant, one of his sons, and an ficiently set out in the opinion. Charges 1, 2, employé, found a belt, which there is evi3, 5, 6, and 7 assert in effect that if Gass & dence tending to show was the belt alleged Whitsell lost a mill belt of a certain descrip- to have been stolen, in a sawdust pile at the tion, and Higdon had a mill belt of a certain site of the Gass & Whitsell mill, and taken description, and if the jury reasonably be in connection with the evidence tending to lieves that the belt in evidence is the one lost show that defendant then knew that he was by Gass & Whitsell, and if from the evidence | under the suspicion of having stolen the belt, the jury reasonably believes that the belt the jury might have inferred that he did in that Higdon had was burned in a gristmill fact steal the belt, although the witnesses house, the defendant should be acquitted. | for the state might have been mistaken as to Charge 4: "If the jury reasonably believe the identity of the belt at defendant's mill, from the evidence that the belt that was in which they identified as the stolen belt. Higdon's gristmill house did not fill the description of the one alleged to have been stolen, in that it did not have on it a peculiar mark made on it when the mill ran away, and from this evidence leaves the jury in doubt of defendant's guilt after considering all the evidence in the case, they should acquit the defendant." Charge 8: "If the jury believe the evidence, the title to the belt alleged to have been stolen was in the James Supply Company, and not in Gass & Whitsell, and there is a variance in the allegation and the proof, and you should find the defendant not guilty." Charge 9: "If the jury believe the evidence, the title to the belt alleged to have been stolen was in the James Supply Company, and you should find the defendant not guilty." There were, therefore, two questions for the jury, under the evidence: First, was the belt which defendant had at his mill, and which some of the state's witnesses identified as the stolen belt, the same belt which is alleged to have been stolen? If so, was the defendant guilty of the larceny of it? Second, if the defendant in fact owned a belt, and the belt identified by some of the state's witnesses as the stolen belt was not in fact the stolen belt, but was defendant's belt, nevertheless, was the defendant guilty of the larceny of the belt of Gass & Whitsell as charged in the indictment? There was some evidence in the case from which the jury might have inferred the defendant's guilt upon each of the above theories. [1] 1. As there was evidence in the case R. C. Brickell, Atty. Gen., and T. H. Seay, from which the jury had the right to infer that Asst. Atty. Gen., for the State. DE GRAFFENRIED, J. The evidence for the state tended to show that W. C. Gass and F. A. Whitsell were sawmill men, and that they were in possession of and used at their sawmill a rubber belt exceeding $25 in value; that said belt was stolen from their mill and was later found in possession of defendant; and that when so found in his possession he made certain explanations with reference to his possession of it tending to show that he had stolen it. The evidence for the defendant, on the other hand, tended to show that he was also a millman, and that the mill belt identified by some of the witnesses for the state as the belt of Gass & Whitsell was not the belt of Gass & Whitsell, but was the defendant's belt; that defendant's belt and that of Gass & Whitsell were of substantially the same make and texture, but that there were marks on the Gass & Whitsell belt that were not on the belt in defendant's possession, which was identified by some of the witnesses for the state as the belt alleged to have been stolen; that the defendant's belt was burned when his gristmill house was burned, and the belt of Gass & Whitsell, alleged to have been stolen, was afterwards found in a sawdust pile at their mill. There was evidence in the case tending to show that the defendant was guilty of the larceny of the belt independent of the testimony of the state's witnesses who identified the belt that defendant had at his mill as the stolen the defendant placed the belt in the sawdust pile and afterwards arranged to have it found there to divert suspicion from himself, and, from the evidence, might have arrived at defendant's guilt without regard to that part of the evidence tending to show that the belt used by defendant at his mill was the belt of Gass & Whitsell, it is manifest that the court committed no error in refusing charges 1, 2, 3, 5, 6, and 7 requested by the defendant. Skains & Lewis v. State, 21 Ala. 218. [2] 2. Charge 4 assumes as a fact that Higdon, at some time, had a mill belt in his millhouse. We presume the time referred to is the time when some of the evidence tends to show that a belt was burned up in the millhouse, but as to this the charge does not inform us. It was for the jury and not the court, under the evidence, to say whether or not Higdon, at any time, had a mill belt in the gristmill house. It cannot be said that the fact that a mill belt was burned up in the millhouse was one of the admitted or uncontroverted facts of the case. Some of the defendant's witnesses testify that they put a mill belt in the gristhouse, and that it was burned, but a witness for the state testified "that so small a structure would not produce heat enough to burn a belt of that character and in a coil without other fuel being added. Furthermore, sufficient heat to burn a mill belt of the magnitude of this one entirely up would also have burned the lumber pile which was less than 20 feet away." The belt which Higdon claimed he owned was, in make and texture, the same as the belt ( not be afraid of me; I can make you ride alleged to have been stolen, and the jury if I want to;" that the prosecutrix then might have concluded, if they believed the above-quoted evidence, that in fact no mill belt had been burned, but something prepared for the occasion, placed in a coil, and burned to explain the absence of a belt at defendant's mill when the belt was found, as claimed by defendant, in the sawdust. It is therefore evident that the court committed no error in refusing to give said charge to the jury. [3] 3. It is a familiar principle that the ownership of property stolen is properly laid in the party in possession either as conditional owner or bailee, and the court properly refused charges 8 and 9 requested by the defendant. Fowler v. State, 100 Ala. 96, 14 South. 860. We have above discussed every question presented by the record in which there appears the semblance of merit. We find no error in the record, and the judgment of the court below is affirmed. Attirmed. (1 Ala. App. 133) KELLEY v. STATE. (Appellate Court of Alabama. June 15, 1911.) 1. CRIMINAL LAW (§ 741*) - PROVINCE OF COURT AND JURY. A question is one of law for a trial court, where there is no evidence from which the jury could reach a different conclusion; but a question for the jury arises when there is evidence from which such conclusion might be drawn. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1705-1728; Dec. Dig. 741.*] 2. RAPE ($53*)-ASSAULT WITH INTENT TO [Ed. Note. For other cases, see Rape, Cent. Dig. $$ 78-82; Dec. Dig. § 53.*] Appeal from Circuit Court, Shelby County; John Pelham, Judge. Red Kelley was convicted of assault with intent to ravish, and he appeals. Affirmed. R. C. Brickell, Atty. Gen., for the State. DE GRAFFENRIED, J. The defendant, a negro from 18 to 21 years of age, was charged in the indictment with an assault with the intent to ravish Jessie Gwin, a girl of 13 years, who was, we infer from the evidence, a white girl. The evidence for the state tended to show that the girl, who lived in a rural community, had been to a country store to buy some soap, and that while walking alone along the road leading to her home the defendant passed her; that when defendant passed her he was alone in a wagon, and as he passed he said to prosecutrix, "Don't you want to ride?" and prosecutrix replied that she did not; that defendant then said, "You need stopped, and the defendant then drove a few yards and also stopped; that prosecutrix then turned and started back down the road, and when she did this the defendant drove on up the road; that the prosecutrix then left the road and went hurriedly through the fields in the direction of her home; that while walking along a footpath, one side of which was heavily wooded, some distance from the road, the defendant suddenly appeared in her pathway and ran after her, trying to catch her, and saying, "It is too late to run now; it will do no good to run now;" that he made efforts to catch her, getting within two feet of her, when prosecutrix saw a man with a gun hunting, and that when she discovered the man the defendant also discovered him and gave up the pursuit. The evidence further tended to show that prosecutrix made immediate complaint, and steps were immediately taken to apprehend the defendant. The following questions arise from the above testimony: What was the purpose of defendant when he abandoned his wagon and took up his position at the woodland by the path? What was his purpose when he committed that assault upon the prosecutrix by pursuing her? What did he mean to conVey to prosecutrix's mind when he said, while pursuing her, "There is no use to run now"? What would he have done to prosecutrix, had he succeeded in catching her in this footpath by the woodland? What does the evidence tend to show would have been the culmination of the pursuit but for the presence of the hunter in the field? [1] The defendant's counsel, in his brief, says that the assault may have been for robbery or for murder, rather than with the intent to rape. The argument made in his brief might have been and probably was, addressed to the jury which tried the case. It can serve no purpose as an argument to a court. The jury alone have the right to weigh evidence. When there is no evidence from which a jury have the right to infer the existence of some matter of material inquiry, there is a question of law for the court; but when there is any evidence from which such conclusion can be reasonably drawn, then there is a question for the jury, and for the jury alone. The defendant, therefore, if the evidence for the state was to be believed-and that was a question for the jury-assaulted the prosecutrix at a lonely spot, near a woodland, at a time when he had reason to believe she had left the public road to avoid him, and he desisted in his pursuit of prosecutrix only upon discovering the presence of a hunter near him, with a gun. [2] Taking into consideration the racial differences existing between the prosecutrix Appeal from Circuit Court, Colbert County; C. P. Almon, Judge. and the defendant, and the differences in↑ their social life and customs, the ages of the prosecutrix and the defendant, and all the Action by A. J. Feldman against the Northattendant circumstances, we cannot say, as ern Alabama Railway Company. From a matter of law, that there was not some evi- judgment for plaintiff, defendant appeals. dence in the case from which the jury might | Reversed and remanded. legally have drawn the conclusion that the Almon & Andrews, for appellant. Wildefendant, when he assaulted the prosecu-hoyte & Nathan, for appellee. trix, did so with the purpose to ravish her. Lewis v. State, 35 Ala. 380; Pumphrey v. State, 156 Ala. 103, 47 South. 156. The judgment of the court below is affirmed. Affirmed. PELHAM, J., not sitting. (1 Ala. App. 334) WALKER, P. J. [1] It is insisted in the argument for the appellant that the sixth and seventh grounds of demurrer to the second count of the complaint were well taken, and that the demurrer to that count should have been sustained. That count charges that the goods therein mentioned were delivered to and received by the defendant as a common carrier, to be carried by it for a reward from NORTHERN ALABAMA RY. CO. v. FELD-Sheffield, Ala., to Haleyville, Ala., “Which the MAN. defendant did not safely and securely, and within a reasonable time, carry and deliver (Appellate Court of Alabama. May 16, 1911.) the said goods for the plaintiff, and the said 1. CARRIERS (8 131*) - FREIGHT-Loss OF goods were lost to the plaintiff." Whether, GOODS-ACTIONS-ALLEGATIONS OF COM-construing the averments of this count of the PLAINT. A count of the complaint, alleging that the goods mentioned therein were received by defendant railroad company to be carried between certain points, "which the defendant did not safely and securely and within a reasonable time carry and deliver the said goods for plaintiff, and the said goods were lost," sufficiently charged breach of duty to carry safely within a reasonable time, so as to state a cause of action, even though it did not clearly show that the negligence resulted in the loss of the goods. [Ed. Note.-For other cases, see Carriers, Cent. Dig. 569; Dec. Dig. § 131.*] 2. EVIDENCE (§ 162*)-BEST EVIDENCE-BANKRUPTCY-BANKRUPTCY RECORDS. The records of the bankruptcy court were the best evidence of whether a shipper claimed that his claim against a railroad company for loss of freight was exempt, so that, in an action against the carrier for damages for loss of the freight, plaintiff could not be asked whether he had claimed that his cause of action against the carrier was exempt. complaint most strongly against the pleader, it is to be construed as attributing the loss of the goods to the breach of duty alleged, still there is no room to claim that the count fails to charge against the carrier a breach of its duty to carry safely and within a reasonable time. This breach of duty owing to the plaintiff being alleged, an actionable wrong is disclosed, even if it is to be said that it is not made clear that that wrong resulted in the loss of the goods to the plaintiff. There was no error in overruling the demurrer to this count of the complaint. [2] In the course of the examination of the plaintiff as a witness in his own behalf, it developed that, several years before this suit was brought and shortly after the claim sued on had accrued, the plaintiff had gone into bankruptcy and had scheduled this claim as part of his assets. The plaintiff's counsel then propounded to him the following questions: "Did you claim that as exempt to Under the bankruptcy statute, the bankrupt's property passes to the trustee, unless the you?" "Was that claim set aside to you as bankrupt complies with the state law as to exempt?" To each of these questions the declaiming exemptions, and when he does so the fendant interposed objections, upon the trustee must set aside the exempt property, sub-grounds, among others, that the records and ject to exceptions by creditors. [Ed. Note.-For other cases, see Evidence, Cent. Dig. 88 536-545; Dec. Dig. § 162.*] 8. BANKRUPTCY (§ 400*)-EXEMPTIONS. [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. 88 671-675; Dec. Dig. § 400.*] 4. CARRIERS ($ 76*)—FREIGHT-ACTIONS FOR Loss-OWNERSHIP OF CLAIM. The shipper's present ownership of his claim against a carrier for loss of freight is an essential element of the cause of action. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 256-271; Dec. Dig. § 76.*] 5. CARRIERS (§ 131*)-FREIGHT-ACTIONS FOR Loss-BURDEN OF PROOF. proceedings of the bankruptcy court, or a certified copy of the same, would be the only legal evidence of the fact inquired about, and that the records of the bankruptcy court were the best evidence. The court overruled the objections, and to this action of the court the defendant duly excepted. The witness answered: "It was." The defendant, by a motion to exclude the answer of the witness, again presented the objection that his testimony was not the best evidence on the subject inquired about, and duly excepted to the action of the court in overruling the motion The carrier's plea of the general issue, in an action by a shipper for loss of freight, cast upon the shipper the burden of proving his present ownership of his claim for loss of his freight. [Ed. Note. For other cases, see Carriers, to exclude. The result was that, notwithCent. Dig. § 574; Dec. Dig. § 131.*] |standing objections duly interposed, the plain Appeal from Clay County Court; E. J. Gar tiff was allowed to testify that the claim in Action by T. B. Gravett against the Allen Graphite Company. From a judgment for defendant abating the suit, plaintiff appeals. Reversed and remanded. Whatley & Cornelius, for appellant. Knox, Acker, Dixon & Blackmon, for appellee. [3] Under the bankruptcy statute, all property of the bankrupt passes to the trustee in bankruptcy, unless the bankrupt complies with the requirements of the state law in respect to claiming his exemptions, and, when there has been such compliance, it is the duty WALKER, P. J. This is an action to reof the trustee to set aside the exempt proper- cover damages resulting from the breach of a ty; his action in this regard being subject to contract entered into on or about the 1st day exceptions by creditors. Collier on Bankrupt- of March, 1909, under which the plaintiff was cy (8th Ed.) p. 144; In re Edwards (D. C.) to haul for the defendant, for the remainder 156 Fed. 794. The records are the best evi- of that year, all the coal and graphite to be dence on the questions of a compliance by the hauled to and for the defendant's graphite bankrupt with the requirements of the state mines, other than what should be hauled by law in respect to claiming the exemptions, two teams belonging to the defendant, the and of the action of the trustee in setting contract naming the price to be paid, and stipaside the exempt property, and it was notulating for monthly payments to be made on proper, against objections duly and season- the regular pay days of the defendant, which ably made, to admit the testimony of the wit-were the fifth day of each month. The comness in regard to these matters. plaint alleged that, though the plaintiff was [4, 5] The plaintiff's ownership of the claim ready and willing to perform the contract on sued on was an essential element of the cause his part, defendant did not permit him to do of action set forth in the complaint, and the the hauling stipulated for, but had it done by plea of the general issue cast upon him the others; and the damages claimed were based burden and necessity of proving such owneron losses suffered by the plaintiff in conseship. Ala. Gold Life Ins. Co. v. Mobile Mutual Ins. Co., 81 Ala. 329, 1 South. 561. When quence of defendant's breach of the contract during the months of November and Decemthe fact was developed that the plaintiff had ber, 1909. The defendant pleaded in abategone into bankruptcy, the plaintiff, in order ment of this action the pendency of a suit to show that the claim sued on had not pass-previously instituted by the plaintiff against ed to the trustee in bankruptcy, undertook to the defendant, alleged to be based on the prove that it had been set aside to him as same cause of action as that which is the part of his exemptions, but the evidence he basis of this suit. On the trial of the issue offered in that connection was not the best made on that plea, the court, on proof of the pendency of a former action, instituted, on November 13, 1909, by the plaintiff against the defendant, in which a breach of the same contract was alleged, but in which the damages claimed were those suffered by the plaintiff, "between the making of the contract and the 31st day of October, 1909," found in favor of the defendant, and rendered its judgment abating the suit. evidence. It is not necessary to consider other questions presented, as they may not arise on an other trial. Reversed and remanded. (1 Ala. App. 656) GRAVETT v. ALLEN GRAPHITE CO. ACTION. [1] We are of opinion that the court was in error in its conclusion that the proof offered Supported the averments of the plea in abateWhere a contract was made in March to ment. The ruling of the court seems to have haul for defendant, for the remainder of the been based on the assumption that the effect year, all the coal and the graphite to be hauled of any breach of the contract by the defendto and for defendant's mines, other than that hauled by defendant's teams, to be paid for by ant was to vest in the plaintiff a single and monthly payments on the fifth day of each indivisible cause of action, and that the month, the pendency of an action by plaintiff bringing of this suit while the former suit for breach of the contract for damages suffered between the time of its execution and October was pending was in disregard of the rule 31st, was not ground for abatement of a second against splitting a single cause of action into action for damages suffered by breach of the con- two or more suits. The assumption was untract during the months of November and De- founded. The rule mentioned is not applicacember, a breach of the contract during any ble to the state of facts disclosed by the proof month constituting a distinct cause of action, and plaintiff being not bound to accept defend- in this case. Under a contract for services to ant's first breach as a termination of the con- be performed during a stated period, which tract, but entitled to maintain other actions based on subsequent breaches in other months. [Ed. Note. For other cases, see Abatement and Revival, Cent. Dig. § 44; Dec. Dig. § 8.*] provides for monthly payments to be made for the services performed during each month included in such period, a breach of the con For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |