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one of the grounds upon which it was in- | though he be not authorized to administer sisted that a judgment was an absolute null- generally as tutor.

ity, and its revival resisted, was that the mother and acting tutrix of the minor heirs was without authority to represent them and her confirmation as tutrix absolutely null because no abstract of inventory had been recorded in the mortgage book prior to the order of the judge confirming her. The court said:

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"It is true the language of article 321 of the Civil Code seems to be imperative in requiring that this abstract must be made out by the clerk and duly recorded, and the certificate of the recorder to the fact of its record presented before the judge makes the appointment. If the article stood alone it would give great plausibility to the pretensions of defendant's counsel; but it does not stand alone, and should properly be construed in conjunction with article 304 of the Civil Code. This latter article provides, among other causes for the removal of a natural tutor, his neglect to have this inventory made and recorded at the time or within the period prescribed by law-that is to say, as we construe it, as required by the article first above quoted. A tutor could not be removed unless he had first been appointed, and if his appointment, under the circumstances appearing in the instant case, was absolutely null, then there was really no appointment made and no tutor who could be removed. In other words, the provision for the removal of the tutor, in such case, precludes the idea that the order appointing him was wholly inoperative and absolutely void."

This ruling was referred to and sustained in Security Co. v. Metcalfe, 49 La. Ann. 351, 352, 21 South. 549. See, also, Hewes v. Baxter, 45 La. Ann. 1058, 13 South. 817.

In Mortgage Co. v. Pierce, 49 La. Ann. 400, 21 South. 972, the ruling in the Stackhouse Case was again referred to, the court holding, as condensed in the syllabus, that:

"A sale of minor's property, through executory process, taken contradictorily with their father as their tutor, is valid, though no certificate of the amount of the inventory of the property of the minors has been recorded as required by law, when the father, having been appointed as their natural tutor by the court, has taken an oath as such, and letters of tutorship have issued to him."

It is true it was further said in that case that the father had the right, under such circumstances, to stand in judgment defensively for the minors as tutor ad hoc even

But the case like the Security Co. Case, supra (both opinions handed down on the same day), is authority that the confirmation and qualification of a tutor by nature is not rendered absolutely null and void by the fact of failure of registry of an extract of inventory in the mortgage book.

The Stackhouse Case has stood as embodying judicial construction of the law on the subject notwithstanding this court has had several opportunities to overrule it. The two cases in 49 La. Ann. and 21 South, referred to the Stackhouse Case as authority, if not approvingly.

The object of the law in requiring recordation in the mortgage book of an abstract of inventory of the property of a minor is to give the legal mortgage, which the law accords him on the property of his tutor, effect against third persons, by recording the evidence of the mortgage.

The law holds the registry of an abstract of the inventory showing the value of the minors' estate to be such evidence.

In the instance case the minors were not injured by failure to record an abstract of inventory. Their mother owned no property whatever at the time and has acquired none since. Mention of this is made merely as showing that no prejudice has resulted to them by the fact of nonrecordation of the abstract.

We must hold on the authority of stare decisis that the recognition by the judge of Mrs. McCoy as tutrix of her children in 1889, permitting her to qualify as such, and issuing to her letters of tutorship, were not absolute nullities. As least not so as to third persons who have acquired rights on the faith of the judge's recognition of the tutrix as such. It follows that the family meeting, which she as tutrix caused to be convoked, and its proceedings, are not to be considered nullities because of the fact that there had been no registry in the mortgage records of an abstract of inventory.

This being so, the sale to Derbonne which followed must be upheld as a valid adjudication of the minors' property. And so, too, must the subsequent sale to Mosely by the sheriff, in enforcement of the mortgage Derbonne had consented to on the property, be upheld.

The judgment of the district court, which was affirmed by the court of appeal, is sustained as the proper adjudication of the issues herein involved.

(135 Ala. 1)

HUNT v. STATE.
(Supreme Court of Alabama. Jan. 20, 1903.)
MURDER-VENIRE-CORPUS DELICTI-CONFES-
SION-SUFFICIENT PREDICATE-CONCLUSION

OF WITNESS-PROMISES-INSTRUCTIONS-EV-
IDENCE.

1. Cr. Code, § 5004, provides that when capital cases stand for trial the judge shall draw from the jury box from 25 to 50 names as special jurors "for each capital case." Held that, where three capital cases were set for the same day, it was error to draw 50 names from the box, and put them all on the separate venires for the trial of each of the three defendants.

2. In a murder trial, one witness testified to having found the body of deceased in a river, with a hole in the forehead, and the skull broken back of the ear, and a hole in the neck about the size of a knife. Another witness testified to having seen deceased, defendant, and another start together to go down some stairs on a boat; that he heard a noise, and was told by defendant's companion that deceased had fallen overboard; and that he never saw deceased again. Held, that the corpus delicti was sufficiently proved to warrant evidence of confessions.

3. Whether a confession in a criminal case was free and voluntary is for the court to say, under proof of the substantive facts as to inducements and threats, and therefore a statement of the witness that the confession was free and voluntary does not lay a sufficient predicate.

4. A promise that, if one charged with a crime will confess, he will be protected by those having him in charge against the wrath of others implicated in the crime, does not render the confession inadmissible, if otherwise voluntary.

5. An instruction as to reasonable doubt arising out of any part of the evidence cannot be refused as abstract.

6. Where there was no evidence in a murder trial which would tend to reduce the crime to manslaughter, the refusal of an instruction properly stating the law in regard thereto was not error.

Appeal from circuit court, Baldwin county; William S. Anderson, Judge.

Hamp Hunt was convicted of murder, and he appeals. Reversed.

On the trial of the case the defendant moved the court to quash the special venire in the case upon the ground that there were three capital cases set for trial on the day this case was called, and that the venire served on this defendant is the same special venire, and was drawn at the same time, and is composed of the same names, as the special venire drawn for the trial of the other two cases. On the hearing of this motion the ground of the motion was proved. The court overruled the motion to quash the venire, and to this ruling of the court the defendant duly excepted. Isaac Howell, the father of Gilbert Howell, the deceased, as a witness for the state, testified that he found the body of Gilbert Howell in the Alabama river; that the body was face down when he found it; that there was a hole in

855.

6. See Homicide, vol. 26, Cent. Dig. §§ 652, 654,

the forehead, and that the skull was broken just back of the ear; that the hole in the skull was about the size of two knuckles of the hand; that there was also a hole about the size of a knife blade in the neck of the body of Gilbert Howell. He further testified that Bill Spotts was with him when he found his son's body. Willie Williams, a witness for the state, testified that he was indicted for the killing of Gilbert Howell; that he was on the boat the night it was said that Gilbert Howell was killed; that the defendant, Gilbert Howell, Orrin Thomas, and some others were shooting craps on the boat that night; that, after shooting craps awhile, Gilbert Howell started to the back of the boat, to go down the steps, and the defendant, Hamp Hunt, and Orrin Thomas went with him; that the witness heard a noise, and ran to the head of the steps, and saw the defendant halfway down the steps, and Orrin Thomas said that Gilbert Howell had fallen overboard, and the witness never saw Gilbert Howell any more. Thereupon the witness Willie Williams was asked by the solicitor for the state the following question: "Did Hamp Hunt make any statement to you?" Upon the witness answering that he did, he was then asked whether he offered any inducement to him to get him to make such statement. Upon the witness answering that he did not, he was then asked if it was free and voluntary; and, upon the witness answering that it was, he was asked to state what Hamp Hunt stated to him. The defendant objected to this question upon the grounds that no sufficient predicate had been laid for the introduction of the confession, and that the corpus delicti had not been proved, and that the said question called for illegal, irrelevant, and incompetent evidence. The court overruled the objection, and the defendant duly excepted. The witness stated "that Hamp Hunt, the defendant, said to him (referring to the case) that he did it through passion; that he didn't aim to do it." Thereupon the defendant moved the court to rule out the testimony of the witness Willie Williams as to the statement made to him by the defendant, upon the grounds that no sufficient predicate had been laid, and the corpus delicti had not been proved, and that the statement was incompetent and irrelevant. The court overruled the objection, and the defendant duly excepted. During the examination of Wilson Smith as a witness, and the subsequent examination of Isaac Howell, they were asked whether or not, after it was alleged that Gilbert Howell was killed, they heard the defendant make a statement, and, if so, was such statement freely and voluntarily made, and without any inducement? To each of these questions the witness said that, upon Isaac Howell asking the defendant to tell him about it, the defendant said: "If you save me from these boys, I will tell you the truth. All the people, black and white,

know that Orrin Thomas is a desperado." That thereupon Isaac Howell said to the defendant: "All right. We will save you. We will have Orrin Thomas arrested." That thereupon the defendant stated that Orrin Thomas struck Gilbert Howell with his knucks, and Willie Thomas struck at him with his knife, and they then threw him overboard. The defendant separately objected to each of the questions propounded to the witnesses, upon the ground that no sufficient predicate had been laid for the introduction of the confessions, in that the corpus delicti had not been sufficiently proved, and also separately moved the court to exclude the testimony of each of such witnesses as to the statements made by the defendant, upon the grounds that such statements were in the nature of a confession, and were shown to have been made involuntarily, and that there was no proof of the corpus delicti. The court overruled each of the objections, and also overruled each of the motions to exclude the testimony, and to each of these several rulings the defendant separately excepted. The defendant introduced several witnesses who testified as to his general character. The court, at the request of the state, gave to the jury the following written charges: "(1) If you find from the evidence in the case, beyond a reasonable doubt, that Gilbert Howell met his death at the hands of Hamp Hunt, or at the hands of Hamp Hunt and Orrin Thomas, acting together, you must convict Hamp Hunt. (2)❘ If you cannot say from the evidence, beyond a reasonable doubt, who killed Gilbert Howell (that is, whether it was Hamp Hunt or Orrin Thomas), but can say from the evidence, beyond a reasonable doubt, that one of the two killed him, and that Hamp and Orrin were acting together in the killing, the defendant would be guilty, and it would be your duty to convict him. (3) If you should find from the evidence, beyond a reasonable doubt, that Gilbert Howell came to his death at the hands of Orrin Thomas, but further find from the evidence, beyond a reasonable doubt, that Hamp aided or abetted in the killing, you should convict the defendant. (4) If the defendant purposely killed the deceased, with a wickedness or depravity of heart towards him, and the killing was determined on beforehand, and after reflection, -for however short a time is immaterial,-he is guilty of murder in the first degree. If the defendant, in this county, before the finding of this indictment, purposely killed the deceased by striking him with metal knucks, by cutting him with a knife, or by throwing him overboard, or by means unknown to the grand jury, after reflection, with a wickedness or depravity of heart towards the deceased, and the killing was determined on beforehand, even a moment before the fatal blow was struck, the defendant is guilty of murder in the first degree." The defendant separately excepted to the

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court's giving of each of these charges, and also separately excepted to its refusal to give each of the following charges requested by him: "(1) If the jury, upon considering all the evidence, have a reasonable doubt about defendant's guilt, arising out of any part of the evidence, they must find him not guilty. (2) If the jury have a reasonable doubt, growing out of the evidence, as to whether the killing was done deliberately, or as to whether it was done premeditatedly, then they cannot find the defendant guilty of murder in the first degree; and if they have a reasonable doubt, growing out of the evidence, as to whether the killing was done out of malice, then they cannot find the defendant guilty of murder in either degree, but only of manslaughter, at the most; and if, after considering all the evidence, the jury have a reasonable doubt as to the defendant's guilt of manslaughter, arising out of any part of the evidence, then they should find the defendant not guilty. (3) 'Proof beyond a reasonable doubt' means that amount of proof which would ordinarily satisfy an unprejudiced mind to a moral certainty. The circumstances which will amount to this degree of proof can never be previously defined. The only legal test of which they are susceptible is their sufficiency to satisfy the mind of a prudent man, and so to convince him that he would venture to act upon that conviction in matters of the highest concern and importance to his own interests. (4) If the evidence, or any part thereof, after a consideration of the whole of such evidence, generates a well-founded doubt of defendant's guilt, the jury must acquit him. (5) The court charges the jury that the law does not favor the admissibility of confessions, and, if there be any doubt of their competency, it should be resolved, in accordance with the humane principles of our criminal law, in favor of life and liberty, and confession should not be believed by the jury unless plainly shown to be voluntary. (6) A confession of guilt, although voluntarily made, will not authorize a conviction, unless, independent of the confession, the evidence is sufficient to authorize a conclusion, beyond every reasonable doubt, that the defendant is guilty. (7) If the evidence for the prosecution tends to establish the defendant's guilt, but the evidence in his favor tends to establish his innocence, and the jury are not satisfied to a moral certainty which tendency is true, it is their duty to give the defendant the benefit of the doubt, and acquit him."

Mitchell & Tonsmiere and Leslie Hall, for appellant. Chas. G. Brown, Atty. Gen., for the State.

MCCLELLAN, C. J. The motion to quash the special venire for the trial of this defendant should have been granted. Section 5004 of the Code, under which this venire was drawn, requires that when capital cases

stand for trial the judge shall draw from the jury box not less than 25 nor more than 50 names as special jurors "for each capital case." Here three distinct capital cases were set for the same day. For the trial of each and all of them the court drew 50 names from the box, and put these identical 50 names on the separate venires for the trial of each of the three defendants, instead of drawing 50 different names for these several trials. This was error. Adams V. State (Ala.) 31 South. 851.

The corpus delicti was sufficiently proved by the testimony of the witnesses Isaac Howell and Willie Williams before evidence of confessions was offered by the state.

In laying the predicate for admitting evidence of confessions, the proper course is to show the substantive facts that no inducements, promises, and the like, were held out or made to the defendant, and that no threats, or the like, were indulged against him, for the purpose of getting the statements from him which it is proposed to show he made at the time. That he made such statements freely and voluntarily is a conclusion to be drawn by the court, when the substantive facts justify it, and is not for the predicate witness to draw and state.

The fact that incriminating statements of a defendant are made upon the promise of officers or citizens having him in custody that, if he will tell the truth, they will protect him against the wrath and vengeance of persons who are implicated, or whom his statement implicates, in the offense, does not render such statements inadmissible, if they are otherwise voluntary. The promise which will render a confession involuntary, in the eyes of the law, must have relation to the legal consequences of the offense itself. It must involve some assurance of benefit to the defendant in respect of the crime under inquiry, as that he will not be prosecuted, or that his punishment will be mitigated, and the like. The mere collateral benefit of protection from the personal violence of those who acted with him in the commission of the crime will not suffice.

The first charge requested by the defendant could hardly be abstract in any criminal case. It has been several times held by this court to assert a sound proposition of law.

Charge 2 refused to defendant is copied from Compton v. State, 110 Ala. 24, 20 South. 119, where it was held to be a correct charge; and this ruling has been reaffirmed in Stoneking v. State, 118 Ala. 70, 24 South. 47, and Adams v. State, supra. Its refusal, however, in this case, may be justified upon the absence of evidence tending to reduce the homicide to manslaughter.

Charge 4 asked by defendant "asserts a correct proposition, and should have been given." Turner v. State, 124 Ala. 59, 63, 27 South. 272.

The other charges requested by the defendant were properly refused, and the court

committed no error in giving the several charges requested by the state. Reversed and remanded.

(135 Ala. 513)

SHELBY IRON CO. v. RIDLEY. (Supreme Court of Alabama. Jan. 15, 1903.) TRESPASS-CUTTING TREES - PENALTY-DEFENSES-EVIDENCE-PREJUDICIAL ERROR.

1. In an action to recover the penalty imposed by Code, § 4137, for willfully cutting trees on the land of another, where plaintiff claims ownership under a deed from a grantee of defendant, the fact that the conveyance executed by defendant was procured by fraud may be shown in defense, unless plaintiff was a bona fide purchaser.

2. The fact that the conveyance was procured by fraud may be shown, though neither the deed nor record was produced, especially when it appeared that the deed was in the possession of plaintiff.

3. The recital, in the deed to plaintiff, of value paid for the trees, was not evidence of such payment against defendant, who was not a party or privy to the deed.

4. Where, in an action to recover the penalty imposed by Code, § 4137, for willfully cutting trees on the land of another without his consent, some of the trees were cut on land formerly owned by defendant, the deed to which he claimed was obtained from him by fraud, and some on other land, and it could not be told that the damages assessed were for trees cut from such other land, the exclusion of evidence of such fraud could not be said to have been without prejudice to defendant.

Appeal from city court of Talladega; G. K. Miller, Judge.

This action was brought by the Shelby Iron Company against J. T. Ridley to recover $900 for willfully and knowingly, and without the consent of the plaintiff, cutting down or destroying or taking away 90 pine, oak, poplar, walnut, and hickory trees and saplings, in violation of section 4137 of the Code of 1896. From an order granting a new trial after verdict and judgment for plaintiff, plaintiff appeals. Affirmed.

Knox, Dixon & Burr, for appellant. Dryer & Webb, for appellee.

TYSON, J. This action was brought to recover the 'statutory penalty imposed by sections 4137 and 4138 of the Code. To successfully maintain the suit it was incumbent upon the plaintiff to show a legal title to the trees or saplings, and that defendant cut or carried them away knowingly, willfully, and without his consent. White v. Farris, 124 Ala. 461, 27 South. 259; Clifton Iron Co. v. Jemison Lumber Co., 108 Ala. 581, 18 South. 554; Gravlee v. Williams, 112 Ala. 539, 20 South. 952. Nor is it of any consequence that the plaintiff was in possession of the trees, if it has not the legal estate in them. Allison v. Little, 93 Ala. 150, 9 South. 388; Coal Co. v. Glover, 101 Ala. 289, 13 South. 478; Gravlee v. Williams, supra. The plaintiff upon the trial introduced in evidence a

deed from one Thurman of the trees, who claims to have acquired his title from the defendant to a portion of the land from which it is alleged they were cut or removed. The defendant offered to show that his signature to the deed which he executed to Thurman was obtained by fraud. The court, on the objection of the plaintiff, declined to allow the evidence to be introduced. The trial resulted in a verdict and judgment for the plaintiff. On motion for new trial, assigning 27 grounds, the verdict and judgment were set aside because of the rulings of the court in refusing to allow the defendant to make the proof above indicated. From the granting of the motion this appeal is prosecuted by the plaintiff.

It is thoroughly well settled by this court that if a party named as grantee in a deed, by misrepresentation of what the paper contains, or other fraudulent means, obtains the grantor's signature to a paper he did not intend to sign, and did not know he was signing, this is fraud in the execution of the instrument, which is available in a court of law. Foster v. Johnson, 70 Ala. 249; Davis v. Snider, Id., 315, and cases cited. This principle does not seem to be controverted. The contention is that it has no application, and cannot be invoked by defendant against the plaintiff, because it is a bona fide purchaser for value without notice. If that status had been shown, it would present the contention insisted upon by appellant for our consideration and decision. But, as the evidence does not show it to be a bona fide purchaser for value of the trees, the principle is applicable, and affects the validity of the deed under which it claims title, as much so as the deed under which Thurman claimed title to the land and trees before making the conveyance to the plaintiff. The recital in the plaintiff's deed of value paid for the trees is not evidence against the defendant, who is not a party to it or a privy under it. Fitzpatrick v. Brigman, 130 Ala. 455, 30 South. 500, and cases cited therein.

There is no merit in the contention of appellant that the evidence offered by defendant to show fraud in the execution of the deed to Thurman should have been excluded because the deed or the record of it was not produced. He did not rely upon it to show title to the trees in himself, or to show an outstanding title to them in a third person. He admitted signing it, and admitted that it conveyed the title to the land, unless he could successfully show that his signature was obtained by fraud. Besides, it was shown to have been delivered to the plaintiff and in its possession. Nor can it be said, as contended by appellant, that the exclusion of the evidence offered was error without injury. Under the evidence it is impossible to say that the damages assessed by the jury were for the trees cut on lands purchased by Thurman for the Houston heirs, and not for any tree or trees cut or removed from the

land claimed by Thurman under the deed from the defendant.

Affirmed.

(135 Ala. 533)

PETERS. SOUTHERN RY. CO. (Supreme Court of Alabama. Jan. 15, 1903.) RAILROADS-NEGLIGENCE WANTON INJURYCONTRIBUTORY NEGLIGENCE-TESTIMONY EVIDENCE FROM PHYSICAL CONDITIONS. 1. The running of a train at a speed of 50 miles an hour through the outskirts of a city is not of itself evidence of wantonness.

2. In an action against a railroad company for injuries sustained by plaintiff while he was following a footpath over defendant's tracks in a village, it appeared that the train was running 50 miles an hour; that at the time of the accident the engineer was looking backward, and there was no evidence that he knew of plaintiff's danger, or of the use of the path. Held, that there was no evidence of wanton

ness.

3. The affirmative charge is not to be given where there is any material conflict in the evidence, or it authorizes a reasonable inference of facts unfavorable to recovery by the one asking it.

4. It is negligence for a railroad company to run a train within the limits of a city or town without the ringing of a bell or blowing a whistle at short intervals, as required by Code, § 3440.

5. In an action against a railroad company for injuries sustained by plaintiff by being struck by a locomotive while crossing the tracks, evidence held to show plaintiff guilty of contributory negligence.

Appeal from circuit court, Jefferson county; A. A. Coleman, Judge.

Action by Joseph A. Peters against the Southern Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Bowman & Harsh, for appellant. Smith & Weatherly and John London, for appellee.

DOWDELL, J. This is an action to recover damages for personal injuries received by the plaintiff, appellant here, from being run against and struck by defendant's locomotive. The complaint contained three counts; the first charging wanton or willful injury, and the second and third alleging simple negligence. In the second count the place of the accident is alleged to have been "at or near Gate City," and while plaintiff was crossing defendant's track, without averring that Gate City was a city, town, or village. In the third count the place of the accident is alleged to have been in a "certain village, town, or city known as 'Gate City'"; and in this count it is also averred that the engineer or other person having control of said locomotive "negligently failed to blow the whistle or ring the bell at short intervals on entering into or while moving within or passing through said village, town, or city, and as a proximate consequence thereof said engine or train ran upon or against plaintiff while plaintiff was engaged in or about crossing said railway in said city, town, or village, and plaintiff suffered," etc. The

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