(9 Ala. App. 70) McWHORTER v. STATE. (Court of Appeals of Alabama. Jan. 13, 1914.) 1. CRIMINAL LAW (§ 437*)-EVIDENCE-DIA GRAMS. In connection with testimony of a witness giving some description of defendant's store, where he testified to finding some liquors, a diagram of the place, drawn by him, may be admitted. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1024; Dec. Dig. § 437.*] 2. CRIMINAL LAW (8747*) — AFFIRMATIVE CHARGE. The evidence being conflicting, defendant is not entitled to the affirmative charge. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1714, 1727; Dec. Dig. § 747.*] Appeal from Circuit Court, Lowndes County; A. E. Gamble, Judge. Terrell McWhorter was convicted of violating the prohibition law, and appeals. firmed. Af R. C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State. PELHAM, J. The indictment charges living in adultery or fornication, in the form prescribed by the Code (Cr. Code, p. 672, form 69), and the jury were not required, in finding the defendant guilty, to specify which of the alternative related charges contained in the indictment, i. e., adultery or fornication, they found to be true. White v. State, 74 Ala. 31. The record contains no error, and the judgment of conviction, appealed from on the record without a bill of exceptions, is affirmed. Affirmed. (11 Ala. App. 268) STARKES v. STATE. (Court of Appeals of Alabama. Dec. 16, 1913.) CRIMINAL LAW (§ 753*)—CRIMINAL PROSECUTION-SUFFICIENCY OF EVIDENCE. Where the evidence to show that accused The charge refused to defendant, referred kept prohibited liquors for sale was entirely to in the opinion, is the affirmative charge. circumstantial, and was not inconsistent with R. L. Goldsmith, of Hayneville, for appel- facie the presumption of innocence, the general his innocence, or sufficient to overcome prima lant. R. C. Brickell, Atty. Gen., and W. Laffirmative charge, requested by him, should Martin, Asst. Atty. Gen., for the State. have been given. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1713, 1727-1739; Dec. Dig. § 753.*] Appeal from Circuit Court, Washington County; John T. Lackland, Judge. "Not to be officially reported." Thomas Starkes was convicted of an ofReversed and refense, and he appeals. WALKER, P. J. [1] A witness for the state, after giving some description of the defendant's store and of a stairway therein, and testifying as to the finding of some beer and whisky, in response to a request of the solicitor to do so, drew a rough sketch or diagram of the store. There was no impropriety in the admission in evidence of this diagram in connection with the testi- Turner, Wilson & Tucker, of Chaton, for mony of the witness in reference to the place appellant. R. C. Brickell, Atty. Gen., and W. in question. Alabama Great Southern R. Co. | L Martin, Asst. Atty. Gen., for the State. v. Johnston, 128 Ala. 283, 29 South. 771; Jarvis v. State, 138 Ala. 17, 34 South. 1025. [2] Under the conflicting evidence adduced, the defendant was not entitled to require the court to give the written charge requested in his behalf. Affirmed. (9 Ala. App. 66) STONE v. STATE. (Court of Appeals of Alabama. Jan. 13, 1914.) CRIMINAL LAW (§ 881*)-VERDICT-ADULTERY -FORNICATION-RELATED Charges. Where an indictment charges living in adultery or fornication in the form prescribed by Code 1907, p. 672, form 69, the jury were not required, in finding the defendant guilty, to specify which of the alternative related charges in the indictment they found to be true. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2089, 2093; Dec. Dig. § 881.*] Appeal from Circuit Court, Autauga County; W. W. Pearson, Judge. Andrew Stone was convicted of crime, and he appeals. Affirmed. manded. THOMAS, J. This case is reversed on the authority of Jones v. State, 90 Ala. 630, 8 South. 383, 24 Am. St. Rep. 850, and 12 Cyc. 488, for the refusal of the court to give the general affirmative charge requested by defendant. The evidence relied on by the state for conviction of a "keeping for sale" the prohibited liquors was entirely circumstantial, and was not inconsistent with defendant's innocence, or sufficient to overcome prima facie the presumption of his innocence. Reversed and remanded. (106 Miss. 455) YAZOO & M. V. R. CO. v. SMITH. (No. 16,221.) (Supreme Court of Mississippi. Jan. 26, 1914.) CARRIERS (§ 281*)-CARRIAGE OF PASSENGERS -DUTY OF CARRIER. While the servants of a railroad company must do all they reasonably can to relieve a passenger after an accident, their duty must be exercised with regard to the safety of other passengers; and where an intoxicated passenger fell off of a train on which there were more than 1,000 passengers, and his absence was not noticed until the train had traveled several miles, it was not negligence for the conductor in charge to refuse to back the train to look for him, it appearing that other trains were notified to watch for him, and that to back the train would endanger all on board. [Ed. Note. For other cases, see Carriers, Cent. Dig. 1093-1097, 1241; Dec. Dig. 281.*] Appeal from Circuit Court, Amite County; E. E. Brown, Judge. Action by R. J. Smith against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed. Mayes & Mayes, of Jackson, for appellant. McKnight & McKnight, of Vicksburg, for appellee. We do not see that the action of the conductor in declining, at the time and under the circumstances, to stop and back his train amounted to negligence. It is the duty of the servants of a railroad company to do all they reasonably can to relieve the injury of a passenger after an accident. This rule in its application must be controlled by the facts in each particular case. stances of this case, and bearing in mind the Considering all of the facts and circumnecessity of safely operating the excursion train of many coaches and with a large number of passengers, we are satisfied that the servants of appellant did not fail in their duty toward appellee, but that they did what they reasonably could for his relief. liable, to a passenger who fell or was thrown The facts make this a very different case REED, J. Appellee, R. J. Smith, a resi- from that of Railroad Co. v. Byrd, 89 Miss. dent of Amite county, on April 11, 1911, left 308, 42 South. 286, and the rule therein anGloster for New Orleans on a round-trip ex-nounced that the railroad company would be cursion over the Yazoo & Mississippi Valley Railroad. On his way to New Orleans, and while in that city, he was drinking. He was still under the influence of liquor when he started on his return trip to Gloster on April 13, 1911, and he continued drinking and was moving about on the train. According to his testimony, at about 8 o'clock in the evening, when the train was just north of Burnside, La., he endeavored to go from one passenger coach to another over an open platform, and accidentally fell, or was in some manner pushed, off the train, which was then running at about 30 miles an hour. He sustained painful, though not serious, inju The peremptory instruction asked by appellant should have been given. Reversed, and judgment here for appel lant. (106 Miss. 461) STATE v. HOWELL. (No. 17,075.) (Supreme Court of Mississippi. Jan. 12, 1914.) INDICTMENT AND INFORMATION (§ 125*)-Sur FICIENCY. ries. He sued the railroad company for $30,000, and the jury returned a verdict in his favor for $300. Upon the trial, appellee claimed that appellant company was negli-zlement are not duplicitous because also chargIndictments charging the offense of embezgent in failing to stop the train and go back ing larceny in the same count, for, the crime for the purpose of finding and properly car- of embezzlement being of statutory origin, it is ing for him. customary for the pleader to weave into a single count the elements of embezzlement under the statute and of larceny at common law. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 334-400; Dec. Dig. § 125.*] Appeal from Circuit Court, Attala County. It appears from the testimony that the train had traveled some miles from the point where it was when appellee was first missed before it was definitely determined that he was not aboard. The conductor then declined to back his train, stating that it would endanger the lives of a large number of passengers; that it was impracticable to do soment, and, upon demurrers being sustained to because of the distance and because it would the indictments, the State appeals. Reversed and remanded. be necessary for the flagman to walk at a certain space ahead of the train as it was being backed; and that the quickest way to reach and relieve appellee was to notify oth- First: "That W. S. Howell in said county, er trains following about where he had fall- on the 2d day of September, A. D. 1912, beThe train consisted of some 17 or 18 ing then and there the agent, servant, emcoaches and had a great many passengers; ployé, and bailee of the Jackson-Wallace the number being estimated at 1,000. No-Company, a copartnership, composed of F. Z. tice was given through the chief train dispatcher, and instructions were telegraphed for all trains to look out for appellee. en. The two indictments referred to in the opinion are as follows: Jackson, Sr., L. Doty Jackson, Mrs. C. Jackson, and Harvey Wallace, doing business under the style and firm name of 'Jackson-WalAppellee does not contend in this appeal lace Company,' did then and there unlawfulthat his fall from the train was occasioned ly, willfully, and feloniously embezzle and by any negligence on the part of the appel- fraudulently secrete and convert to his own lant's servants. use, and make away with and secrete with H. T. Leonard and Thos. Land, both of Kosciusko, and Geo. H. Ethridge, Asst. Atty. Gen., for the State. COOK, J. Appellant was indicted by the grand jury of Attala county twice for the crime of embezzlement. Separate demurrers were interposed to the indictments, both of which were sustained, and the state appeals. the felonious and fraudulent intent to embez- | the peace and dignity of the state of Miszle and convert to his own use, $25 of the sissippi." good and lawful money of the United States of America, the kind and description being to the grand jurors unknown, of the value of $25, of the property of the said Jackson-Wallace Company; by virtue and by means of his said agency, place, employment, and bailment, as aforesaid, did then and there receive, take into his possession, and was then and there intrusted to his care, by virtue of his said place, agency, employment, and bailment as aforesaid, the said sum of $25, of the value of $25, the kind and description being to the grand jurors unknown, the property of the said Jackson-Wallace Company, the said money being then and there received by and intrusted to him (the said W. S. Howell) for and in the name of and on account of the said Jackson-Wallace Company, and afterwards did then and there fraudulently, unlawfully, willfully, and feloniously embezzle, secrete, and apply to his own use the said $25 of the property of the Jackson-Wallace Company, his employer and master as aforesaid, from the said Jackson-Wallace Company, willfully, unlawfully, and feloniously did take, steal, and carry away, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Mississippi." Second: "That W. S. Howell in said county, on the 2d day of September, A. D. 1912, being then and there the agent, servant, employé, and bailee of F. Z. Jackson, Sr., did then and there unlawfully, willfully, and feloniously embezzle and fraudulently secrete and convert to his own use, and make away with and secrete with the felonious and fraudulent intent to embezzle and convert to his own use, $1,541 of good and lawful money of the United States of America, the kind and description being to the grand jurors unknown, of the value of $1,541, of the property of F. Z. Jackson, Sr.; by virtue and by means of his said agency, place, employment, and bailment, as aforesaid, did then and there receive, take in his possession, and was then and intrusted to his care by virtue of his said place, agency, and employment, as aforesaid, $1,541 of good and lawful money of the United States of America, of the value of $1,541, the kind and description of said money being to the grand jurors unknown, and said money being then and there received by and intrusted to the said W. S. Howell for and in the name of and on account of the said F. Z. Jackson, Sr., and afterwards did then and there fraudulently, willfully, and feloniously embezzle, secrete, and appropriate to his own use the $1,541, the property of the said F. Z. Jackson, Sr., his employer and master aforesaid, from the said F. Z. Jackson, Sr., willfully, unlawfully, and feloniously did then and there steal, take, and carry away, contrary to the form of the statute in Both indictments charge the crime of embezzlement in apt, technical, and comprehensive language, and at the conclusion charges that the defendant "unlawfully and feloniously did take, steal, and carry away" the property alleged to have been embezzled. There were numerous assignments of demurrer, none of which are maintainable, but we shall notice the assignment that the indictments are duplicitous in that they charge both the crime of embezzlement and larceny in the same count. The indictment in State v. Journey, 62 South. 354, is very like the indictments in the present case, and this court held the indictment to be beyond criticism. Mr. Bishop, in his Directions and Forms, has this to say about indictments charging embezzlement: "401. Indictment Peculiar and How.-Alike under the earlier statutes of embezzlement and under most of the modern ones, as commonly interpreted, the indictment is required to be wrought and twisted into such special shape as to charge, in a single count and as one offense, two dissimilar offenses, the one statutory and the other at common law. The one of these offenses is embezzlement as defined by the statute, and the other is common-law larceny; and the pleader must not omit from his allegations a particle of what belongs to either, a rule, however, which by statute passed from time to time has been more or less relaxed. Hence: "402. Elements of Indictment.-In the absence of a relaxing statute, the indictment must charge, in addition to venue and time, that the defendant did feloniously steal, take and carry away, not so much money, but such and such enumerated coins, bank bills, chairs, tables or other articles; stating also the ownership of them, and, as far as the rule in larceny requires, the value. This is the larceny element, charged after the manner of the common law. The other is the statutory element; and the indictment, into which the larceny element is woven, covers the particular statute, like other indictments on statutes." It would be entirely safe and the better practice for district attorneys to follow the form prescribed by Mr. Bishop, but we do not say that it is necessary to charge larceny, but we do hold that it is entirely proper to do so. (9 Ala. App. 17) TARVER v. STATE. (Court of Appeals of Alabama. Jan. 15, 1914.) 1. CRIMINAL Law (§ 167*)—FORMER JEOPARDY -MISDEMEANOR AND FELONY. Under Code 1907, § 1221, providing that conviction before a recorder shall not bar prosecution where the facts charged constitute a felony, conviction of a misdemeanor in a recorder's court is not pleadable as a defense to an indictment charging a felony. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 304-308, 310, 311; Dec. Dig. § 167.*] 2. CRIMINAL Law (§§ 419, 420, 448*)—ADMISSIBILITY-HEARSAY. In a prosecution for assault with intent to murder, a question as to what witness' brother had come to testify to called for purely hearsay evidence or for a conclusion as to the uncommunicated motives or intentions of another, and hence was properly excluded. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 973-983, 1035-1039, 10411043, 1045, 1048-1051; Dec. Dig. §§ 419, 420, 448.*] 3. CRIMINAL LAW (§ 1169*)-APPEAL-HARMLESS ERROR-ADMISSION OF EVIDENCE. Error, if any, sustaining an objection to a question as to how much witness would "say" defendant weighed was without prejudice, where defendant was permitted, without contradiction, to testify as to his weight. complete jurisdiction of such offense, and of the person of the defendant; and it is alleged that the said prosecution and conviction was based upon and is of the same matters and transaction as is alleged in this indictment or prosecution. L. A. Sanderson, of Montgomery, for appellant. R. C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State. PELHAM, J. [1] The defendant's conviction of a misdemeanor in the recorder's court of the city of Montgomery was not pleadable as a defense to this indictment charging a felony, and the demurrer of the state interposed to the defendant's plea, seeking to set up such a defense, was properly sustained. Code, § 1221; Harris v. State, 2 Ala. App. 116, 56 South. 55. [2] There was no error committed by the court in sustaining the state's objection to the question asked the witness S. Franco by defendant's counsel on cross-examination, "That is what your brother came up to testify to?" The matter called for would be based on pure hearsay or a conclusion reached on the uncommunicated motives or intentions of another. A witness cannot testify to the intentions or cognition of another person. Bailey v. State, 107 Ala. 151, 18 South. 4. WITNESSES (§ 268*)-EXAMINATION-SCOPE. 234; Layton v. Campbell, 155 Ala. 220, 46 A question on cross-examination of a South. 775, 130 Am. St. Rep. 17. state's witness, "Don't you do all the swearing?" was properly excluded. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.*] [Ed. Note.-For other cases, see Witnesses, Cent. Dig. 88 931-948, 959; Dec. Dig. § 268.* 5. HOMICIDE (§ 292*)-TRIAL-INSTRUCTIONS -ISSUES. Where the state confessed defendant's plea of former jeopardy as to all misdemeanor charges embraced in the indictment for assault with intent to murder, and sought a conviction for the felony, and conceded that defendant might be acquitted if not guilty of the felony charge, and the court so charged, there was no prejudicial error in refusing to define the constituent elements of the lesser offenses embraced in the general terms of the indictment. [3] If it was error to sustain an objection to the question asking this witness how much he would "say" the defendant weighed, it was without prejudice to the defendant and harmless, for the defendant was permitted to testify what he weighed, and this testimony was without contradiction in the evidence. [4] It requires no discussion to show that the court properly sustained an objection to the question, "Don't you do all the swearing?" asked the state's witness A. Franco on cross-examination by the defendant. Other rulings on the evidence are manifestly correct, and do not, we think, require reasoning [Ed. Note.-For other cases, see Homicide, Cent. Dig. 88 597, 598, 600, 601; Dec. Dig. or the citation of authority to uphold them. 292.*] 6. HOMICIDE (§ 300*)-INSTRUCTIONS SELFDEFENSE. A charge upon self-defense, failing to set out the elements constituting it, was erroneous as submitting a question of law to the jury. [Ed. Note.-For other cases, see Homicide, Cent. Dig. 88 614, 616-620, 622-630; Dec. Dig. $ 300.*] Appeal from City Court of Montgomery; Armstead Brown, Judge. Bernard Tarver was convicted of assault with intent to murder, and he appeals. Af [5] The state having confessed defendant's plea of former jeopardy as to all misdemeanor charges embraced in the indictment, and placed itself in the outset of the trial squarely on asking for a conviction of the felony, conceding that the defendant was entitled to an acquittal if not shown to be guilty of the felony charge, there could be no prejudicial error based on the rulings of the court with respect to refusing to define the constituent elements of the lesser offenses embraced in the general terms of the indictment, either in refusing to charge orally, or at the written The defendant interposed a plea setting up request of the defendant thereon, as the isthat he was charged and tried in the record-sues involved in the trial did not include er's court of the city of Mongomery for an these matters. The court ex mero motu assault and battery on one S. Franco; that charged the jury that the defendant's pleas he was convicted and had discharged the of former jeopardy had been confessed as to sentence; that the recorder had full and all other offenses embraced in the indictment *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes firmed. except the felony charge, and that he could to be tried separately (Woodley v. State, 103 only be convicted on that charge. Ala. 23, 15 South. 820). Besides, after one Refused charges Nos. 1 and 2 are the gen- severance had been allowed, any further moeral charge, and properly refused. [6] Charge No. 3, in failing to set out the elements constituting self-defense, submits a question of law to the jury. The plea referred to in charge 4 is evidently the special plea of former jeopardy, and it will be seen from what we have said that the court was not in error in refusing the charge. No reversible error is presented, and the judgment of the trial court will be affirmed. Affirmed. (9 Ala. App. 48) FELDER v. STATE. (Court of Appeals of Alabama. Jan. 13, 1914.) 1. CRIMINAL LAW (§ 622*)-CODEFENDANTSSEVERANCE ON MOTION OF STATE. There is no error in allowing a motion by the state for severance of codefendants, a defendant having no inherent right to demand a joint trial, nor was it error under Code 1907, 8 7842, which only gives a codefendant the right to demand a separate trial. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 1380-1383, 1385, 1386, 1388-1390; Dec. Dig. § 622.*] 2. CRIMINAL LAW (§ 622*)—SEVERANCE-DISCRETION OF COURT. Where one severance of a number of codefendants has been allowed, any further motion for severance is addressed to the discretion of the court. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 1380-1383, 1385, 1386, 1388-1390; Dec. Dig. 8 622.*] Appeal from Circuit Court, Lowndes County; A. E. Gamble, Judge. tion for severance was addressed to the discretion of the court. Malachi v. State, 89 Ala. 134, 8 South. 104. There is no error shown by the record, and the judgment of the lower court will be affirmed. Affirmed. (9 Ala. App. 50) FRAZIER v. STATE. (Court of Appeals of Alabama. Jan. 13, 1914.) 1. CRIMINAL LAW (§ 1036*)—APPEAL — REVIEW-SUFFICIENCY OF EVIDENCE-REQUEST FOR CHARGE. In the absence of any showing of a request for a charge, defendant, convicted of concealing stolen goods, cannot have review of the ques tion of sufficiency of the evidence to show larceny of the property, or its ownership as alleged. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1631-1640, 2639-2641; Dec. Dig. § 1036.*] 2. CRIMINAL LAW (§ 1036*)-—APPEAL-RE VIEW-ADMISSIBILITY OF EVIDENCE-OBJEC- No objection to testimony or exception to ruling thereon being shown, its admissibility cannot be considered on appeal. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1631-1640, 2639-2641; Dec. Dig. § 1036.*] Appeal from City Court of Montgomery; Armstead Brown, Judge. Steve Frazier was convicted of having concealed stolen goods, and appeals. firmed. Af Mark D. Brainard and Hill, Hill, Whiting & Stern, all of Montgomery, for appellant. Hop Felder was convicted of arson, and R. C. Brickell, Atty. Gen., and W. L. Marhe appeals. Affirmed. R. C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State. PELHAM, J. The defendant appeals from a judgment of conviction of arson in the second degree rendered by the circuit court on August 27, 1913. The transcript contains no bill of exceptions, and the time for presenting and having a bill signed has expired. tin, Asst. Atty. Gen., for the State. PELHAM, J. The record in this case shows that the defendant was indicted, tried, and found guilty by a jury of having concealed stolen goods, alleged in the indictment to be the property of the Seaboard Air Line Railroad Company. [1, 2] It is urged by counsel for defendant in brief filed that the evidence set out in the bill of exceptions fails to show a larceny of the property, or ownership as alleged, and that on the ruling in the case of Perry v. State, 155 Ala. 93, 46 South. 470, it was er master of the railroad company, to testify that the goods checked "short" in the car. We do not see how we can review any of these questions here, as the bill of exceptions shows no objection to any testimony offered, and no exception to have been reserv [1, 2] The defendant was jointly indicted with Walter Jones, William Cowling, and Stephen Wagner. On July 29, 1912, the jointly indicted William Cowling demanded and was granted a severance. Subsequent-ror to permit the witness Adams, the yardly, on August 26, 1913, the prosecution was abated as to Jones because of his death, and, on the motion of the state, a severance was granted as to this defendant and Stephen Wagner against the objection of the defendant. In this there was no error. There was no inherent right in the defendant to demanded to the court's ruling on the evidence or a joint trial with his codefendant Wagner (Wilkins v. State, 112 Ala. 55, 21 South. 56), and the manifest intent of the statute (Code, § 7842) is to give to a defendant jointly indicted with others the right, at his election, any other matter. If the general charge, or any other charge, was requested by the state or defendant, it is not shown by any part of the transcript. The proceedings shown by the record proper are regular and |