84, 93; 4 Elliott on Railroads (2d Ed.) §§ | was traveling with his mother, testified that 1521, 1531. He was not entitled to hold the railway company for damage to some of his goods by a rain occurring after he had accepted a delivery of them, whether or not, before such acceptance, he might have raised a question as to the act of the carrier constituting an effectual delivery under the terms of its contract. Without passing upon the questions raised by the demurrers to the pleas, it is enough to say that the evidence offered did not tend to prove that the property of the plaintiff "was damaged in transit by leaky roof of car," as alleged in the complaint, and that the general affirmative charge in its behalf requested by the defendant should have been given. Reversed and remanded. (1 Ala. App. 344) NASHVILLE, C. & ST. L. RY. v. CASEY. (Appellate Court of Alabama. June 1, 1911.) 1. CARRIERS (§ 303*)-PERSONAL INJURIESSETTING DOWN PASSENGERS STARTING TRAIN BEFORE PASSENGERS ALIGHT. A very old and infirm woman was injured in alighting from defendant's train on which she had been a passenger. The train stopped the usual length of time, which appeared to be a reasonable length of time for passengers to alight. The servants of the carrier had no notice of the passenger's enfeebled condition, and though she claimed that the entrance of other passengers delayed her exit until the train had started, it appeared that these passengers were not directed or authorized to enter. Held, that the railroad company was not guilty of negligence in starting the train before the passenger alighted. [Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1228; Dec. Dig. § 303.*] he had two little children with him and a bundle of goods; that the station of Albertville was called, and the train came to a standstill; that he got off with the children and his bundle; that a crowd of young men got on the car; that his mother was on the middle step when the train started; that he took hold of her after the car had moved a little distance; that it had moved about half a car length, when he nearly fell; that he did not fall; that his mother's back did not touch the ground; that he took hold around her body and does not know whether she was struck or not, but, with the help of Mr. A., he prevented her from falling to the ground; that she came to him as he reached to hold her, after the train started. W. G. Casey, another son of Hettie Casey, testified that he is a physician; that his mother was old and infirm; that her condition was such that she could not get off any vehicle in safety, unless it was at a standstill, and that this was plain to any one. The testimony showed that one, and probably two, of her ribs were "fractured," or, as the physician explained it, "cracked," which, the testimony of physicians showed, might have been caused, either by a blow or fall, or by the pressure of her son's arm around her, in her aged and enfeebled condition. It was not shown that the conductor knew anything about her enfeebled condition, nor about her attempt to alight from the car after the train had started. He stood at the platform assisting passengers out, until he thought all were out, then took away the stool that had been placed for 2. CARRIERS (§ 333*)-PERSONAL INJURIES-alighting passengers to step on, went to the CONTRIBUTORY NEGLIGENCE. Where an old and infirm woman was unable to alight from a train during the time it stopped, she was guilty of contributory negligence in at tempting, with the aid of her son, to alight after the train had started. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1385-1397; Dec. Dig. § 333.*] Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge. Action by A. B. Casey, as administrator of Hettie Casey, against the Nashville, Chattanooga & St. Louis Railway. From a judgment for plaintiff, defendant appeals. versed and remanded. Re front of the train to see that all baggage and express articles were off, and gave the signal for the train to start and got on at that end of the train. Some of the witnesses supposed that the train stopped two or three minutes, some from three to five minutes, and the conductor and other employés testified that it stopped for four minutes, which was the regular time for stopping, and "plenty of time for all passengers to get off." There was no testimony tending to show that the train did not stop the usual length of time, or that it was not a reasonable time for passengers to alight, Walker & Spragins, for appellant. Inzer, or that the conductor or any of the emMcCord & Orr, for appellee. PER CURIAM. [1] This action is for injury received in alighting from a car at the station, originally brought by Hettie Casey, and after her death revived in the name of appellee as her administrator. The evidence shows that the original plaintiff was about 80 years old and very infirm, and that she was traveling on the car from Guntersville to Albertville. Her son Albert Casey, who ployés knew of intestate's feeb.e condition, or of her attempt to alight, or that the conductor or any employés directed or authorized the entry of the boys into the car, which it is claimed delayed the exit of intestate. Under the facts in evidence in this case, the negligence of defendant was not proved as claimed. Birmingham Union Ry. Co. v. Smith, 90 Ala. 60, 63, 8 South. 86, 24 Am. St. Rep. 761; Highland Ave. & Belt R. Co. v. Burt, 92 Ala. 291, 294, 9 South. 410, 13 L. R. A. 95; Birmingham Ry. & Elec. Co. v. Wildman, 119 Ala. 547, 554, 24 South. 548; Central of Georgia Ry. Co. v. McNab, 150 Ala. 332, 342, 43 South. 222. [2] Under the undisputed evidence in this case, the plaintiff's intestate was guilty of contributory negligence in attempting to alight while the train was moving. L. & N. R. Co. v. Lee, 97 Ala. 325, 326, 12 South. 48; Watkins v. Birmingham Ry. & Elec. Co., 120 Ala. 147, 152, 24 South. 392, 43 L. R. A. 297; 2 Hutchinson on Carriers (3d Ed.) § 993, p. 1144. The court erred in refusing to give the general charge requested by the defendant. The judgment of the court is reversed and the cause remanded. Reversed and remanded. NOTE. The foregoing opinion was prepared by Mr. Justice Simpson, of the Supreme Court of Alabama, before the case was transferred to this court under the provisions of the act establishing the Court of Appeals of Alabama, and was adopted as the opinion of this court; Walker, P. J., not sitting, having been of counsel in the case. (1 Ala. App. 136) GOODWIN v. STATE. (Appellate Court of Alabama. June 15, 1911.) 1. WITNESSES (§ 388*)-IMPEACHMENT QUES TION. An objection to the question, "Did you not tell the school children and neighbors generally that you were 13 years old last summer?" propounded to prosecutrix, was properly sustained, as specific, and not general, questions must be asked to lay a foundation to impeach a witness by proof of inconsistent statements. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1233-1242; Dec. Dig. § 388.*] 2. CRIMINAL LAW (88 419, 420*)-EVIDENCEHEARSAY. a On cross-examination of prosecutrix, question as to what her mother said when the attorney for the defendant called and made inquiry as to the age of prosecutrix was improper as calling for hearsay evidence. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 978-983; Dec. Dig. §§ 419, 420.*] 3. WITNESSES (§ 388*)-IMPEACHMENT-FOUNDATION. No foundation for impeachment of a witness by proof of inconsistent statements can be laid before the witness has testified. [Ed. Note. For other cases, see Witnesses, Dec. Dig. § 388.*] 4. WITNESSES (§ 388*)-IMPEACHMENT-PROOF OF INCONSISTENT STATEMENTS. In the absence of a proper foundation, a witness cannot be impeached by proof of prior inconsistent statements. [Ed. Note. For other cases, see Witnesses, Dec. Dig. § 388.*] 5. CRIMINAL Law (§§ 419, 420*)—EVIDENCE REPUTATION-AGENT. Evidence of the general opinion within the community of the age of the prosecutrix was properly excluded, being hearsay evidence of a fact susceptible of direct proof, and not falling within the exception which permits members of a family to testify as to the age of a member though their knowledge be gained only by tradition. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 973-983; Dec. Dig. 88 419, 420.*] 6. CRIMINAL LAW (§ 335*)-EVIDENCE-BURDEN OF PROOF. Where the defendant introduced a family record, the prosecution assumed no burden of explaining to the jury alterations therein. [Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 335.*] 7. CRIMINAL LAW (§ 761*)-TRIAL-INSTRUCTIONS-ASSUMPTION OF FACTS. Where an instruction in a prosecution assumed the authenticity of a family record, introduced by the defendant, it was properly refused, being an invasion of the province of the jury. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 1731-1738; Dec. Dig. 8 761.] WALKER, P. J. [1] The court was not in error in sustaining the objection of the solicitor to the question propounded to the prosecutrix on her cross-examination: "Did you not tell the school children and neighbors generally that you were 13 years old last summer?" The question as framed involved a palpable disregard of the rule against mere general questions, not calling to the attention of the witness the time when, the place where, or the person to whom it is suggested that the witness had made statements at variance with the facts or statements deposed to, when it is sought to lay the foundation for the subsequent introduction of proof of such inconsistent or contradictory statements or declarations. Floyd v. State, 82 Ala. 16, 2 South. 683; Powell v. State, 19 Ala. 577; Southern Railway Co. v. Williams, 113 Ala. 620, 21 South. 328. [2, 3] Nor was the court in error in sustaining the objection to the question to the prosecutrix as to what her mother said on the occasion of the attorney for the defendant calling and making inquiries as to the age of the prosecutrix. What the mother may have said was mere hearsay, and inadmissible, unless offered for the purpose of impeaching her testimony. At the time the question under consideration was asked, the mother had not been examined as a witness, and proof intended to serve the purpose of or jury consider or weigh it as evidence in laying a predicate for the impeachment of her testimony could not be brought into the case before she had deposed to something subject to contradiction, and had been afforded an opportunity to explain the circumstances and purport of what she may have said on the occasion inquired about. Powell v. State, supra; Floyd v. State, supra. [4] The objection of the solicitor to the question by defendant's counsel to the witness Dave Whitten as to statements made by the father and mother of the prosecutrix in reference to her age was properly sustained, as there was no pretense of a predicate having been laid for the impeachment of those witnesses by proof of contradictory statements or declarations. [5] The court properly refused, on ob jections duly interposed, to admit proof, proposed to be made in behalf of the defendant, as to "the general opinion," or "the general reputation in the community," or "the general talk by the school children and the neighbors generally," with respect to the age of the prosecutrix. "The rule is that hearsay evidence (and such is the evidence of reputation) is inadmissible to establish any specific fact capable of direct proof by witnesses, speak ing from their own knowledge; and when the rule is relaxed, it is from necessity alone." Abel v. State, 90 Ala. 631, 8 South. 760. The evidence called for by the questions referred to did not come within the exception to the rule which permits the age of a person to be testified to by himself or by members of his family, although the knowledge may be gained only by tradition. v. State, 123 Ala. 35, 26 South. 213; on Evidence, § 300. Elder Jones [6, 7] The effect of giving charge A requested by the defendant would have been to put upon the state the burden of explaining to the reasonable satisfaction of the jury the alteration or change in a so-called "family record," which was introduced in evidence by the defendant, if the jury should find from the evidence that it had been altered or changed. The bill of exceptions does not indicate that proof was made as to whose "family record" the document in question was, or when or by whom the entries contained in it were made. The prosecution had nothing to do with bringing the document into the case, made no admission in regard to it, and did not in any way vouch for its genuineness, either in its original or altered condition. It was not in any way bound by or committed to the document as evidence in the case; and it is not conceived upon what theory the claim could be made that the introduction of the document in evidence by the defendant had the effect of putting upon the prosecution the duty of explaining an alteration of it, when it was not made to appear that the prosecution had even consented that the court the case, either as it was originally or as it was after being changed. The prosecution was under no duty in reference to a document with which it had no connection, so far as the evidence disclosed; and the charge mentioned was properly refused. Besides, the charge improperly assumed the authenticity of the document, either in its original or altered condition, as a "family record" having some bearing upon the issues in this case. This was an invasion of the province of the jury. [8] To justify the refusal of the court to give charge B requested by the defendant, it is sufficient merely to mention the familiar rule that a party is not entitled to require the court to single out a particular phase of the evidence and to direct the attention of the jury to it. Fountain v. State, 98 Ala. 40, 13 South. 492; Stone v. State, 105 Ala. 60, 17 South. 114. Affirmed. (1 Alą. App. 89) SAMPLE v. STATE. (Appellate Court of Alabama. June 30, 1911.) 1. CRIMINAL LAW (§ 1169*)-CONFESSIONSPRELIMINARY EVIDENCE AS TO CONFESSION. Reception of a confession before preliminary evidence that it was voluntarily made is prejudicial error. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3137-3143; Dec. Dig. 8 1169.*] 2. CRIMINAL LAW (§ 531*) - CONFESSIONS PRELIMINARY EVIDENCE AS TO VOLUNTARY CHARACTER-SUFFICIENCY. Testimony by the constable who arrested accused, and in company with two other persons took him to a place of custody, that the witness offered accused no inducement and made no threats is not sufficient preliminary proof of the voluntary character of a confession alleged to have been made by accused. Law, Cent. Dig. §§ 1212-1217; Dec. Dig. § [Ed. Note. For other cases, see Criminal 531.*] Appeal from Circuit Court, Marengo County; John T. Lackland, Judge. Walter Sample was convicted of murder, and appeals. Reversed and remanded. I. I. Canterbury, for appellant. R. C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State. WALKER, P. J. [1] In reference to extrajudicial confessions, it was said by Somerville, J., delivering the opinion of the court in the case of Redd v. State, 69 Ala. 259: "The settled rule of this court is that all such confessions are prima facie involuntary, and they can be rendered admissible only by showing that they are voluntary and not constrained; or, in other words, free from the influence of fear or hope, applied to the prisoner's mind by a third person." Dealing with the same subject, Stone, J., expressing the opinion of the court in Bonner v. State, | ness in the following language: 'Did you of55 Ala. 242, said: "It is laid down as one of fer him any reward? Did you make any the cardinal rules of evidence that confes- threats against him?' The witness replied to sions of guilt shall not be received against a each question that he did not." Thereupon prisoner, until it is first affirmatively shown the court, against objections duly interposed that they were made voluntarily. They are by the defendant, permitted the witness to prima facie inadmissible, and the onus rests testify to a confession, or self-incriminating on the prosecution to repel the imputation of admissions, then made by the defendant. So undue influence. Any inducement of profit, it plainly appears that the proof offered and benefit, or melioration held out, any threat admitted was of a confession claimed to have of violence, injury, increased rigor of confine- been made by the defendant in the presence ment, or any other menace which can in- of three other persons, and that all that was spire alarm, dread, or the slightest fear, is shown as a preliminary to the introduction enough to exclude the confession, as not vol- of such proof was embodied in the statement untarily made. To justify their of one of those persons, the witness who was admission, confessions must be voluntary in to depose to the incriminating confession, fact. And the question, whether confessions that he did not offer the defendant "any rewere voluntarily made or not is one of law, ward," and did not make any threats against to be decided by the court, and not one of him. This evidence fell far short of disclosfact for decision by the jury. When such ing to the court the circumstances under testimony is offered, preliminary proof should which the alleged confession was made, or first be made, showing the circumstances un- of furnishing sufficient data upon which to der which the alleged confession was made." base a conclusion on an inquiry as to whethWe are not aware of any subsequent author-er the alleged confession was voluntary or itative departure from the rule as announced in the above quotations. A showing to the court that a confession by the defendant, proposed to be proved by the state, was voluntarily made, without the appliances of hope or fear, without extraneous inducement or pressure in either of those directions from any third person, has continued to be a condition precedent to the admissibility of such proof. Jackson v. State, 83 Ala. 76, 3 South. 847; McAlpine v. State, 117 Ala. 93, 23 South. 130; Huffman v. State, 130 Ala. 89, 30 South. 394. The law, heeding the teaching of experience that an involuntary statement by an accused person in reference to the matter of the accusation against him, induced by such influences, is very liable to be untrue, rejects the evidence of it as polluted and worthless. not. Where it is made to appear that the statement of the defendant, proposed to be introduced in evidence against him, was made in the presence or hearing of three other persons, merely negativing the conclusion that one of those persons, not even shown to have been one engaged in conversation with the defendant at the time, did not offer him a reward, nor make any threat against him, by no means shows the absence of extraneous inducement to or pressure upon the defendant, or that he was not constrained by influences of either hope or fear brought to bear upon him by some third person. It would not be at all inconsistent with the statement of the witness if the fact was that the alleged confession was extorted by a threat made, or was induced by a promise given, by one of the men who accompanied the witness, and who was the person at the time engaged in conversation with the defendant. In the absence of evidence really tending to show that a confession proposed to be proved was voluntarily made, a trial court is not warranted in holding that a proper predicate has been laid for the introduction of such proof. [2] It cannot be said that what the record shows was done in this case by way of laying a predicate for the introduction of proof of a confession by the defendant amounted to a showing that the confession proposed to be proved was voluntary, and not constrained; that it was without extraneous inducement or pressure of fear or hope brought to bear by another. One Parker, the constable The record in the case at bar shows that who arrested the defendant after the killing the court, over the objection of the defendwhich is in question in this case, was ex-ant, admitted evidence of a confession claimamined as a witness to prove a confessioned to have been made by him in the presence claimed to have been made by the defendant of the constable who had him under arrest, shortly after the arrest, and while the wit-without requiring that preliminary showing ness, who was accompanied by two other which the law makes a condition precedent men, was carrying his prisoner to Thomas- to the admissibility of such evidence. Its acton. After the witness had been permitted, over an objection made by the defendant, to answer in the affirmative the question, "Did, or not, the defendant say anything in your presence or hearing in regard to this difficulty when you took him along?" "The solicitor," as stated in the bill of exceptions, tion in that regard was error to the prejudice of the defendant. It is not an unwholesome consequence of the existence of this rule of law that sometimes its application results in excluding testimony of inferior arresting officers as to chance expressions or conversations of prisoners in their charge, cause the circumstances as disclosed to the court were not such as to require it to rule that the proposed evidence is legally admissible. a suit in its ordinary form is pending in a court of law, the plaintiff has, subject to certain exceptions, the absolute right, before or after issue joined and at any time Because of the error above mentioned, the before verdict rendered, to dismiss his suit judgment must be reversed. [Ed. Note.-For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 15-19, 22; Dec. Dig. 8 7.*] 2. BILLS AND NOTES (§ 537*)—ACTIONS-DIRECTED VERDICT. Where plaintiff did not prove when the note sued on was transferred to him, or that he purchased it in good faith for value before maturity, his request for the general affirmative charge was properly denied. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. § 1879; Dec. Dig. § 537.*] Appeal from Circuit Court, Coosa County; A. H. Alston, Judge. or take a voluntary nonsuit. [Italics supplied.] Davis v. Forshee, 34 Ala. 108; Jenings v. Pearce, 99 Ala. 305 [13 South. 605]; 6 Ency. Pl. & Pr. 833, 843; 1 Am. & Eng. Ency. Law (1st Ed.) 184; Hawes on Parties to Actions, § 2." Baldwin v. Roman, 132 Ala. 323, 31 South. 596. We think it would make no difference that the general charge had been requested by both parties. The verdict had not in fact been rendered, and the court's direction to the jury to render a verdict, if they believed the evidence, was not equivalent to a rendition of the verdict. The jury being the sole triers of the facts, it was exclusively in their province to pass on the evidence, and say whether or not they believed it, and until they did this no verdict can be said to have been rendered. The plaintiff should have been allowed to take a nonsuit at the time he offered so to do; the jury had not retired nor had a verdict been rendered, and no rights of the defendant had been set up by pleas of set-off or other cross-action that could have been prejudiced by the entry of such a judgment. [2] The plaintiff (appellant) having failed Action by John A. Darden against J. L. to prove when the note sued upon was trans-Holloway. From a judgment for defend-ferred, or that he purchased it in good faith ant, plaintiff appeals. Reversed and rendered. Lackey & Bridges, for appellant. Whitson & Harrison and George A. Sorrell, for appellee. PELHAM, J. "After the evidence closed," as recited by the bill of exceptions in this case, "each party presented to the court a written request for the affirmative charge. The court gave such affirmative charge in favor of the defendant, and refused it to the plaintiff, whereupon defendant's attorney read to the jury the general affirmative charge in favor of the defendant, which the court had given at defendant's request, and thereupon immediately after said charge had been so given and read to the jury, the plaintiff asked permission of the court to take a nonsuit, and moved the court to permit him to take a nonsuit. The court overruled such motion and refused to permit the plaintiff to take a nonsuit, on the ground that the general affirmative charge had already been given in favor of the defendant and given to the jury, to which ruling of the court the plaintiff excepted." [1] The action of the court in refusing to allow plaintiff to take a nonsuit under the circumstances as above set out is here assigned as error. "It is well settled that while for a valuable consideration before maturity, the general charge requested in his behalf was properly refused. The appellant's right to suffer a nonsuit having been improperly denied by the trial court, the final judgment on the minutes entered in the court below is set aside, and a judgment of nonsuit here entered. Reversed and rendered. (1 Ala. App. 183) EARLE v. STATE. (Appellate Court of Alabama. June 8, 1911.) 1. WITNESSES (§ 330*)-IMPEACHMENT-COMPETENCY OF IMPEACHING TESTIMONY. In a prosecution for larceny, a prosecuting witness who had testified to his loss of personal property, and that he had not played craps with defendant, was asked, on cross-examination, to discredit him, whether it was against the rules fendant stated that he expected to show by the of his employer for employés to gamble, and dewitness that it was against the rules, and that upon a violation thereof an employé was discharged, but there was nothing in the evidence tending to show that defendant had gambled on the occasion referred to, or that defendant intended later in the trial to offer evidence that witness lost his property by gambling. Held, that the defendant could not so argue the proba tive force of the matter inquired about, and that the question was properly excluded. [Ed. Note. For other cases, see Witnesses, Dec. Dig. § 330.*] |