a void judgment, and not a judgment or sentence showing on its face an apparent usurpation or excess of jurisdiction, such as would entitle the defendant to his discharge from imprisonment on a writ of habeas corpus. The court was one of general jurisdiction competent to try the case, enter a judgment of guilty, and impose sentence; and the judgment and sentence were sufficient even to support an appeal. Shirley v. State, 144 Ala. 35, 40 South. 269; Talbert v. State, 140 Ala. 46, 37 South. 78; Roberson v. State, 123 Ala. 55, 26 South. 645; Driggers v. State, 123 Ala. 46, 26 South. 512; Wilkinson v. State, 106 Ala. 23, 17 South. 458; Gray v. State, 55 Ala. 86. This proceeding, however, is a collateral attack only on the judgment; and voidable informalities and irregularities are not available on habeas corpus proceedings, but only fatal jurisdictional defects. parte Simmons, 62 Ala. 416; Sneed v. State, 157 Ala. 8, 47 South. 1028; Bray v. State, 140 Ala. 172, 37 South. 250; Ex parte Bizzell, 112 Ala. 210, 21 South. 371; Gordon v. State,

Ex

71 Ala. 315; Ex parte Herrington, 87 Ala. 1,

5 South. 831.

[5, 6] The judgment of conviction and sentence of the court is dated October 25, 1911, the writ of habeas corpus was sued out on November 10, 1911, and the petition was heard and return made on the 16th day of November, 1911. The term of court at which the defendant was sentenced adjourned on the 27th day of October, 1911. The sheriff, in his return to the writ on November 16, 1911, stated that he held the petitioner under the judgment of conviction and sentence of the circuit court, imposed on October 25, 1911, giving no reason and making no showing why the petitioner had not been delivered to the agent of the board of convict inspectors. Code, §§ 6513, 6514. The clerk of the court testified that the day after the adjourn ment of the term of court at which the defendant was sentenced he notified the convict authorities, as provided by law. The appellant contends that there has been an unreasonable delay in carrying out the sentence of the law, and that he has been held in custody of the sheriff in the county jail for an unreasonable length of time after having been sentenced to serve a term in the penitentiary. Upon this proposition, we are inclined to agree with petitioner; but this does not entitle him to be discharged absolutely because of his unlawful detention by the sheriff in the county jail. This subject has been carefully considered and passed upon by the Supreme Court. The proper order is not an absolute discharge, but a judgment releasing the prisoner from the unlawful detention by the sheriff, and remanding him to the custody of the proper authorities. White V. State, 134 Ala. 197, 32 South. 320; Smith v. State, 149 Ala. 53, 43 South. 129; State v. Megs, 165 Ala. 136, 51 South. 758.

The order of the court below in remanding the prisoner to the custody of the sheriff of the county, to be forthwith delivered to the proper authorities to take him to the penitentiary of the state of Alabama to carry out the sentence of the circuit court, is correct. It is in effect an order discharging the prisoner from the custody of the sheriff for confinement in the county jail, and remanding him to the custody of the board of convict inspectors for confinement in the penitentiary.

The judgment denying the petition is affirmed. Affirmed.

(4 Ala. App. 390)

YOLANDE COAL & COKE CO. v. NORWOOD.

(Court of Appeals of Alabama. Jan. 16, 1912. Rehearing Denied Feb. 8, 1912.)

1. ACTION (§ 30*)-COMPLAINT TRESPASS OR CASE.

fendant, its servants or agents, while acting Where a complaint alleged "that the dewithin the scope of their employment, negligently caused or allowed one of its coal cars to run against the plaintiff's wagon, whereby the plaintiff," and his horse and wagon were damaged, it is a count in case, rather than trespass.

[Ed. Note. For other cases, see Action, Cent. Dig. §§ 216-255; Dec. Dig. § 30.*] 2. EXCEPTIONS, BILL OF (§ 41*)-PRESENTATION-TIME.

In a

Acts 1896-97, p. 270, § 18, established Tuscaloosa county law and equity court, and provided that "appeals may be taken from the judgments, orders and decrees of said court" to the Supreme Court in the same manner, time, and cases as appeals are taken from the circuit court. Code 1907, § 3019, provides that a bill of exceptions must be presented to the presiding judge for his approval within 90 days from the entry of judgment. and equity court, judgment was rendered Decase tried before the Tuscaloosa county law cember 7, 1909, a motion for a new trial was made, but not acted on until September 5, 1910, and a bill of exceptions was filed on October 27, 1910. Held that, as the bill of exceptions was presented more than 90 days after the rendition of a judgment, but within 90 days after the court had overruled the motion for a new trial, it presented for review only the act of the trial court in overruling the motion for a new trial.

[Ed. Note.-For other cases, see Exceptions. Bill of, Cent. Dig. §§ 65-71; Dec. Dig. § 41.*] 3. APPEAL AND ERROR (§ 248*)—ReservaTION OF GROUNDS-EXCEPTIONS-NECESSITY -MOTION FOR NEW TRIAL.

The court on appeal will not consider matters arising on the trial to which no exceptions were reserved, though they were assigned as grounds for a new trial.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1432, 1435-1468; Dec. Dig. 248.*]

4. APPEAL AND ERROR (§ 525*)-BILL OF EXCEPTIONS-NECESSITY-WRITTEN CHARGES. To procure a consideration of written charges reviewed on a court of appeal, they must not only appear in the record, but must

appear to have been acted upon until the 5th day of September, 1910, and the bill of exceptions appears to have been filed with the clerk of the court on October 27, 1910, and it was approved and signed by the presiding judge on the same day. Section 18 of the act establishing the Tuscaloosa county law and equity court (see Acts 1896-97, p. 270) provides that "appeals may be taken from the judgments, orders, and decrees of said court to the Supreme Court in the same manner, within the same time, and in the same cases as appeals are taken from judgments, orders, or decrees of the circuit court to the Supreme Court." Under the provisions of section 3019 of the Code, a bill of exceptions must be presented to the presiding judge for his approval within 90 days from the day on which the judgment is entered, and not afterwards. The bill of exceptions in this case was presented to the presiding judge more than 90 days after the rendition of the judgment, but within 90 days after the court had overruled the motion for a new trial. The bill of exceptions, therefore, presents to us for review only the action of the trial court in overruling the motion for a new trial.

[3] Several of the rulings of the trial court, made on the trial, to which the defendant reserved no exception, were assigned as grounds for a new trial. These grounds cannot be considered by us. Smith v. Woolf, 160 Ala. 644, 49 South. 395; Montgomery Traction Co. v. Haygood, 152 Ala. 142, 44 South. 560; Ala. Midland v. Brown, 129 Ala. 282, 29 South. 548.

the question calling for such evidence to be put to the witness without objection on his part. In other words, a party will not be permitted to speculate upon the answer of a witness to a question put to the witness, without objection on his part, and then, although the answer is responsive to the question, if it is not what he expected or hoped it to be, put the trial court in error, because the court refuses, on his motion, to exclude the answer of the witness on the ground of its immateriality. When a witness is being examined, and a question is put to the witness which calls for irrelevant or immaterial testimony, it is the duty of the party against whom such testimony is being offered to object to the question. If he fails to do so, and the answer of the witness to such question is responsive to it, although irrelevant and immaterial, then a motion of the party against whom such testimony is introduced to exclude such answer from the jury is addressed to the sound discretion of the trial court, and the action of the trial court on such motion will not be reviewed.

6. It follows from what we have said in sections 1, 2, 3, 4, and 5 of this opinion that assignments of error 1, 2, and 3 are not well taken, and that grounds 3, 4, 5, 9, 10, 11, 12, 13, 14, and 15, assigned on the motion of defendant for a new trial, present nothing to us for review.

ing in the line and scope of the duty of his employment at the time of his injury." With reference to this assignment, we simply desire to say that the bill of exceptions fails to show that the defendant moved to exclude that part of the evidence of the plaintiff to which the assignment of error refers. The plaintiff testified as a witness; but we find nothing in the record indicating that the defendant at any time made any objection to anything said by the plaintiff touching the subject of the employment of Joe Byars. For substantially the same reasons, there was nothing in the eighth ground assigned on said motion for a new trial.

[6] 5. No proposition is better settled than that a party will not be permitted to put a court in error for refusing, upon his motion, to exclude the responsive answer of a witness to a question, upon the ground that the evidence elicited by such question is ir

[8] 8. After the plaintiff had rested his case, the defendant moved the court to exclude all of the evidence which had been

court overruled. Thereupon the court's attention was called to the fact that the plaintiff had not proven that the injury of which the plaintiff complained had occurred in Tuscaloosa county. This proof the court, against the objection of the defendant, then allowed the plaintiff to make. A court is a place where justice is administered; and when

the trial, that it should be reopened and other evidence introduced the court has the power, and it is the duty of the court, to reopen the case and allow the introduction of additional testimony. Morrissett v. Wood, 123 Ala. 384, 26 South. 307, 82 Am. St. Rep. 127. There is nothing in the seventh ground assigned on the motion for a new trial.

[9] 9. New trials cannot be granted merely because the court, sitting as a jury, would have rendered a verdict different from that returned by the jury. Winter & Loeb v. Jenkins, 106 Ala. 259, 17 South. 627.

[10] The tenacity with which the AngloSaxon race has clung, through successive ages, to the system of trial by jury indicates that through that system the English-speaking people believe that justice, under the law, is usually attained. As the jury is the forum to which the law has committed the determination of questions arising out of disputed facts, and as the trial judge himself is present during the trial, and has the opportunity of hearing the witnesses when they testify, and of observing their demeanor upon the stand, it is but right that an appellate court, when there is some evidence to support the verdict, should not disturb the action of the trial court in refusing to grant a new trial, upon the ground that it was contrary to the evidence, or that the verdict was excessive, unless the preponderance of the evidence against the verdict is so strong that the appellate court can say that it was palpably wrong and unjust. Cobb v. Malone & Collins, 92 Ala. 630, 9 South. 738. In the present case, we are not able to say that in finding a verdict for the plaintiff for the amount for which judgment was rendered against the defendant the jury did the defendant a palpable wrong. We are therefore of the opinion, after a careful consideration of the record, that the judgment of the court below must be affirmed. Affirmed.

(4 Ala. App. 1)

ROBINSON v. STATE.

(Court of Appeals of Alabama. Feb. 8, 1912.) 1. STATUTES (§ 81⁄2*)-LOCAL ACTS-NOTICEREQUISITES.

Notice of application for the passage of Loc. Acts 1911. p. 63, to change the times for holding the regular terms of the county court of Clay, stated an intention to apply to the Legislature meeting in January, 1911, for the passage of a bill, the substance of which was and would be to amend the act establishing a county court for the county of Clay, approved December 13, 1898, as amended March 2, 1901, and August 6, 1907, as follows-then setting out specifically the changes proposed to be made in the wording of sections 6 and 11 of the law referred to. Held, that the notice sufficiently stated the substance of the proposed law within the constitutional require

ment.

[Ed. Note. For other cases, see Statutes, Cent. Dig. 86; Dec. Dig. § 82.*]

Since Loc. Acts 1911, p. 63, changing the county court of Clay, contained but one subtimes of holding the regular terms of the ject, to wit, the amendment of a former statute specifically referred to, which subject was expressed in the title, the act was not defective for failure of the title to indicate in what respect it proposed to amend the former act.

[Ed. Note. For other cases, see Statutes, Cent. Dig. §§ 184-186; Dec. Dig. § 124.*] 3. STATUTES (§ 38*)—AMENDMENT-PUBLICA

TION.

Const. 1901, § 45, providing that so much of an amended law as is amended by a later act shall be re-enacted and published at length, is sufficiently complied with when the statute affecting the previous act or variant provisions applicable to the subject dealt with sets out the law as it is to be after the amendment without a repetition of it as it stood before. [Ed. Note. For other cases, see Statutes, Cent. Dig. § 41; Dec. Dig. § 38.*] 4. CRIMINAL LAW (§ 1173*)-TRIAL-INSTRUC

TIONS.

Refusal to give a request to charge that the jury should see that each written charge given by the court was considered in connection with the oral charge of the court was not ground for reversal.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3164-3168; Dec. Dig. § 1173.*]

5. CRIMINAL LAW (§ 785*)-INSTRUCTIONSWITNESSES.

lieved from all the evidence that a particular A request to charge that if the jury bewitness named swore falsely as to any of the material facts, then the jury could disregard his entire testimony, was properly refused as tending to lead the jury to believe themselves warranted in capriciously rejecting the entire testimony of the witness referred to if they found that he swore falsely to any material fact, though they did not find that such statement was willfully false.

Law, Cent. Dig. §§ 1774, 1776-1781, 1889-1894; [Ed. Note.-For other cases, see Criminal Dec. Dig. § 785.*]

6. CRIMINAL LAW ($ 785*)-INSTRUCTIONSCREDIBILITY OF WITNESS.

A request to charge that if the jury believed that it was possible under the evidence that a witness for the state was mistaken as to who fired the fatal shot, and the jury believed from other evidence that defendant did not fire it, then they should acquit, was properly refused as calculated to impress the jury with the fact that they would be authorized to reject a witness' testimony if they conclude that there was a bare possibility of his being mistaken.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1774, 1776-1781, 1889-1894; Dec. Dig. § 785.*]

7. CRIMINAL LAW (§§ 789, 811*)-INSTRUCTIONS CHARACTER.

An instruction that a good character is held in high esteem by the court, and when a good character is proven by a defendant it alone may generate a reasonable doubt as to defendant's guilt, and if the evidence is in conflict such good character may be looked to alone in favor of the defendant and he may be acquitted on the strength thereof when taken in conjunction with all the other evidence, was properly refused as calculated to impress the jury that they might consider the evidence of defendant's good character by itself, independent of other evidence as furnish

ing a foundation for reasonable doubt and as giving undue prominence to such evidence.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1851, 1880, 1904-1922, 1960, 1967, 1787, 1969-1972; Dec. Dig. $$ 789, 811.*]

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. $$ 1846-1849, 1851, 1880, 1904-1922, 1960, 1967; Dec. Dig. § 789.*]

R. G. Rowland, for appellant. R. C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

WALKER, P. J. The question raised by the defendant as to the legality of the grand

The defendant interposed the following objection to going to trial: Because the court had adjourned by operation of law, as the act passed by the last Legislature, changing the time of holding the court, was not published in a newspaper published in a county, as provided by the Constitution; and (2) that the act was not published in full as to the proposed amendment, as provided by the Constitution. Motion was interposed to quash the venire on the same ground, also to quash the indictment on the same ground; the grounds being very fully set out and gone into.

The following charges were refused to the defendant: (1) "I charge you gentlemen, that it is your duty to see that each written charge given you by the court was considered in making your verdict in connection with the oral charge given by the court." (3) "I charge you that, if you be lieve from all the evidence that Tom Garrett swore falsely as to any of the material facts, then you can, if you see fit, disregard his entire testimony." (4) "I charge you, gentlemen of the jury that if you believe it is possible under this evidence that Tom Garrett was mistaken as to who fired the fatal shot, and you believe from the other evidence that Jim Robinson did not fire it, then you should acquit the defendant." (15) "I charge you, gentlemen of the jury, that a good character is held in high esteem by our court, and, when a good character is proven by a defendant in a criminal case, that it alone may generate a reasonable doubt of the defendant's guilt, and, if the evidence is in conflict such good character may be looked to alone in favor of the defendant, and he may be acquitted on the strength of such good character, when taken in conjunction with all the other evidence." (17) "I charge you, gentlemen of the jury, that there may have existed in your mind a belief that Jim Robinson, the

was found is based upon suggestions against the constitutional validity of the act approved March 3, 1911, which purports to change the times for holding the regular terms of the county court of Clay. Local Acts 1911, p. 63.

[1] The first of these suggestions is that the notice which was published of the intention to apply for that act did not "state the substance of the proposed law," as required by section 106 of the Constitution. The notice, as it is set out in the record, stated that "application will be made to the Legislature of Alabama that meets January, 1911, for the passage of a bill, the substance of which is and will be to amend the act establishing a county court for the county of Clay, approved December 13, 1898, as amended March 2, 1901, and August 6, 1907, as follows"-here the notice sets out specifically the changes proposed to be made in the wording of sections 6 and 11 of the law so referred to. The notice sufficiently stated the substance of the proposed law within the meaning of the constitutional requirement above mentioned. Ex parte O'Neal, 154 Ala. 237, 45 South. 712; Ex parte Black, 144 Ala. 1, 40 South. 133; Wallace v. Board of Revenue, 140 Ala. 491, 37 South. 321.

[2] It is also suggested that the title of the act is insufficient in failing to indicate in what respect it proposed to amend the former statute of which it made mention. The bill contained but one subject, namely, the amendment of a former statute specifically referred to, and this subject was clearly expressed in the title. "The inclusion in the act of matters which are not mentioned in the title, but which are cognate to the subject expressed by the title, does not render the bill unconstitutional." Lewis v. State, 123 Ala. 84, 26 South. 516. [3] There is no merit in the further suggestion that the parts of the former law which were proposed to be amended should have been set out in the amending act as they stood before they were amended. The