statement against interest, admissible as any other written statement containing the same matter.-Coleman v. State, 64 So. 529.

§ 407 (Ala.App.) It was error to permit a witness to testify as to statements by defendant's wife in the presence of defendant directly after the homicide, where they did not call for a reply by defendant, as they were not admissions by him.-Vinson v. State, 64 So. 639.

§§ 419, 420 (Ala.App.) In a prosecution for assault with intent to murder, a question as to what witness' brother had come to testify held properly excluded as calling for hearsay evidence.-Tarver v. State, 64 So. 161.

$$ 419, 420 (Ala.App.) It was error to permit a witness to testify as to statements by defendant's wife in the presence of defendant directly after the homicide, where they did not call for a reply by defendant, as they were mere hearsay.-Vinson v. State, 64 So. 639.

(H) Documentary Evidence and Exclusion

of Parol Evidence Thereby.

§ 434 (Ala.App.) A witness cannot testify to entries on books or items on statements of account when he has no personal knowledge of their correctness, although such witness could testify that statements had been received from a bank to show the existence of the bank sending them.-Young v. State, 64 So. 171.

§ 437 (Ala.App.) 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.-McWhorter v. State, 64 So. 158.

(I) Opinion Evidence.

$ 448 (Ala.App.) In a prosecution for assault with intent to murder a question as to what witness' brother had come to testify held properly excluded as calling for a conclusion as to the uncommunicated motives or intentions of another.-Tarver v. State, 64 So. 161.

§ 448 (La.) Statement of a witness that the bull stolen was a natural muley, and not dehorned, held not objectionable as mere opinion evidence.-State v. Hawthorn, 64 So. 873.

§ 479 (Ala.) A physician, who examined a wound inflicted on a person by a bullet, was competent to testify to the direction the bullet followed on entering the body.-Clayton v. State,

64 So. 76.

§ 546 (Ala.App.) An objection to a question by counsel for one of several jointly indicted as to what a codefendant had admitted on preliminary trial was properly sustained, where the codefendant was present in court and had not yet testified.-Boswell v. State, 64 So. 188.

§ 547 (Fla.) Under Laws 1909, c. 5897, it was error to permit the official stenographer to read the testimony of two absent witnesses as given at a former trial.-Coley v. State, 64 So. 751.

(M) Weight and Sufficiency. $549 (Ala.App.) A finding by the trial court sitting without a jury held supported by the testimony.-Wright v. State, 64 So. 173.

§ 552 (Miss.) Circumstantial evidence to support a conviction must prove guilt beyond a reasonable doubt, and exclude every other reasonable hypothesis than that of guilt.-Simmons v. State, 64 So. 721.

§ 560 (Ala.App.) The jury is not bound to convict on the mere preponderance of the evidence.-Adams v. State, 64 So. 371.

$561 (Ala.App.) Where the jury from all the evidence believes beyond a reasonable doubt that defendant is guilty, they must convict, though they may also believe it possible that he is not guilty.-Hooten v. State, 64 So. 200.

$561 (Ala.App.) The existence of a doubt as to the truth of a statement as to a material fact testified to by any one of the state's witnesses will not prevent a conviction if, upon a consideration of all the evidence, the jury are convinced beyond a reasonable doubt.-Hubbard v. State, 64 So. 633.

Where a single fact is proved to the satisfaction of the jury which is inconsistent with defendant's guilt, it is sufficient to raise a reasonable doubt, and to require an acquittal.-Id. § 561 (Ala.App.) An instruction that, if the jury had no reasonable doubt of defendant's guilt, although they might believe it possible that he was not guilty, he should be convicted is correct.-Lovett v. State, 64 So. 643.

§ 562 (Miss.) Proof of the trailing of accused by experienced bloodhounds, unaccompanied by other proof, is insufficient to sustain a conviction.-Carter v. State, 64 So. 215.

§ 563 (Ala.App.) The corpus delicti may be proven by circumstances from which the jury might reasonably infer that the offense has been committed, and positive evidence is unnecessary.-Truett v. State, 64 So. 529.

§ 564 (Miss.) A conviction for an unlawful sale of liquor, charged to have been made in T. county, where there was no evidence of a sale in that county, will be reversed.-Quillen V. State, 64 So. 736.

XI. TIME OF TRIAL AND CONTINUANCE.

§ 586 (La.) The denial of a continuance is discretionary.-State v. Hollingsworth, 64 So.

409.

§ 589 (Ala.) Denial of a continuance on the ground of sickness held not improper.-Bryant v. State, 64 So. 333.

§ 593 (La.) Refusal of continuance on the ground that the leading counsel for accused was absent and that it would be impossible for him to be properly represented because other counsel were not familiar with the defense held ground for reversal.-State v. Hollingsworth, 64 So. 409.

§ 593 (La.) Denial of a continuance for absence of the leading counsel for accused, while in attendance on the constitutional convention, held not error (Rev. St. § 126, Act No. 196 of 1912).-State v. Hawthorn, 64 So. 873.

§ 594 (La.) An application for a continuance for absence of a witness is addressed to the sound discretion of the trial court.-State v. Jackson, 64 So. 481.

8594 (La.) Where absent witnesses reside in another state, the granting or refusing of a continuance is within the trial court's sound discretion.-State v. Hawthorn, 64 So. 873.

Accused is not entitled to a continuance for absence of nonresident witnesses, where there is no assurance that they will be present when the case is again called for trial.-Id.

§ 595 (Ala.App.) Refusing defendant's motion for continuance, or postponement of trial, that he might have witnesses brought in by attachment, was not error, he in no way having indicated to the court that he expected to elicit any material testimony from either witness.Malone v. State, 64 So. 632.

§ 598 (La.) Where accused applies for a continuance for absence of a witness, he must show diligence, and on second application on such ground extraordinary diligence must be shown. -State v. Jackson, 64 So. 481.

§ 598 (La.) Accused is not entitled to a con-
tinuance for absence of witnesses, where it does
not appear that he has exercised due diligence
to procure them.-State v. Hawthorn, 64 So.
873.

§ 600 (Ala.App.) A statement is properly
stricken from a showing made by defendant for
an absent witness; the fact recited therein be-
ing immaterial to any issue in the case.-Hale
v. State, 64 So. 530.

XII. TRIAL.

(A) Preliminary Proceedings.

§ 622 (Ala.App.) There is no error in allow-
ing a motion by the state for severance of code-
fendants, a defendant having no inherent right
to demand a joint trial, nor under Code 1907, §
7842, which only gives a codefendant the right
to demand a separate trial.-Felder v. State,
64 So. 162.

Where one severance of a number of codefend-
ants has been allowed any further motion for
severance is addressed to the discretion of the
court.-Id.

§ 622 (La.) An accused is not entitled to a
severance on the ground that he desires to call
his codefendant as a witness, because, while the
latter cannot be compelled to incriminate him-
self, he may be called as a witness for his code-
fendant.-State v. Phenix, 64 So. 129.

§ 631 (Miss.) Under Code 1906, § 1481, pro-
viding that one indicted for a capital crime
shall, on demand, have a list of the venire de-
livered to him at least one day before the trial.
accused was not entitled to have such list
where the question was first raised on motion
to quash for failure to serve the list.-Collier
v. State, 64 So. 373.

§ 632 (La.) A motion to set aside the assign-
ment for trial was properly overruled when
based merely on the allegation that a juror who
acted on a former trial of the same case, where-
in a mistrial was entered, had been indicted
for perjury committed while serving as such
juror, and that such juror was ready for trial.
-State v. Blue, 64 So. 411.

tion as to the good character of the assaulted
party, and then move to exclude the answer
responsive thereto.-McDaniel v. State, 64 So.
641.

§ 695 (Ala.App.) In a prosecution of joint de-
fendants, a confession by one, being admissible
at least against that one, was properly admit-
ted in evidence over a general objection by one
of the others.-Boswell v. State, 64 So. 188.

§ 698 (Ala.App.) Where defendant rightfully
objects and excepts to the admission of a paper
in evidence, he cannot be held to have waived
the error, or be held not prejudiced, because the
paper was afterwards admitted over his objec-
tion on the same grounds, but to which he did
not reserve an exception.-Young v. State, 64
So. 171.

(E) Arguments and Conduct of Counsel.
§ 728 (Ala.App.) Where defendant objected to
part of the solicitor's argument because not
based on the evidence, whereupon the steno-
of the testimony of a witness
graphic report
was read, and defendant's counsel then said,
"Go ahead," the objection was waived.- Belk
v. State, 64 So. 515.

§ 730 (La.) The statement of the prosecuting
attorney that the jury had no more moral right
to decide the case on the testimony of accused
alone than he had to kill one of the jurors held
harmless, where the judge warned the jury that
they were not to be guided by the argument of
counsel.-State v. Carroll, 64 So. 868.

(F) Province of Court and Jury in Gen-

eral.

§ 737 (La.) Where the boundary line between
two parishes has not been established by joint
survey pursuant to Rev. St. § 2624, the ques-
tion of the venue of a crime alleged to have
been committed in one parish should be refer-
red to the jury.-State v. Malone, 64 So. 711.

§ 741 (Ala.App.) In a prosecution for a viola-
tion of the liquor law, the weight to be given
defendant's admission of ownership, contained
in his claim affidavit against the property seiz
ed, held for the jury upon consideration of all

eral.

§ 651 (La.) In a prosecution for stealing a
bull, the judge properly refused to permit the
jury to go into Mississippi to view the animal.-
State v. Hawthorn, 64 So. 873.

$ 656 (Ala.) The statement of the presiding
judge, made in response to objection to evidence,
on a trial for the killing of a hack driver by a
customer, as to the distance the hack was from
the sidewalk at the time and place of the diffi-
culty, that he thought it was a fact that, if a
man was on the sidewalk and the hack was in
the street, the man would have to step down to
get to the hack was not prejudicial.—Clayton v.
State, 64 So. 76.

(C) Reception of Evidence.

§ 665 (Ala.App.) Whether a witness, who vio-
lated the rule, should be permitted to testify
was within the discretion of the trial court.-
Belk v. State, 64 So. 515.

§ 684 (Ala.) On trial for murder, testimony of
a physician as to the direction the pistol bullet
followed on entering decedent's body was ad-
missible as against the objection that it was
brought out on rebuttal examination instead of
on direct examination.-Clayton v. State, 64
So. 76.

(D) Objections to Evidence, Motions to
Strike Out, and Exceptions.

§ 693 (Ala.App.) Accused could not require
the court to exclude answers to questions to
which no objection was made.-Tillis v. State,
64 So. 527.

529.

§ 741 (Ala.App.) The affirmative charge can-
not be given when there is any evidence tend-
ing to support a conviction.-Cheshire v. State,
64 So. 544.

$747 (Ala.App.) The evidence being conflict-
ing, defendant is not entitled to the affirmative
charge.-McWhorter v. State, 64 So. 158.

§ 747 (Ala.App.) Where evidence was Con-
flicting, the court properly submitted the case
to the jury, and refused general charges in de-
fendant's behalf.-McDaniel v. State, 61 So.
641.

§ 753 (Ala.App.) Where the evidence was en-
tirely circumstantial, and not inconsistent with
innocence, or sufficient to overcome the pre-
sumption of innocence, the general affirmative
charge should have been given.-Starkes v.
State, 64 So. 158.

§ 755 (Ala.App.) A charge invading the prov-
ince of the jury was properly refused.-Howell
v. State, 64 So. 522.

$ 757 (Ala.App.) A request to charge that if,
after considering all the evidence, the jury be
lieved that a certain witness exhibited malice
toward accused they might disregard the evi-
dence was properly refused.-Adams v. State,
64 So. 371.

The court could not instruct as to the weight
to be given the evidence of a particular wit-
ness should they find that he held malice toward
accused.-Id.

§ 782 (Ala.) Defendant held not entitled to a
charge that, if the jury can reconcile the evi-
dence with the theory that he is innocent, it is
its duty to acquit.-Walker v. State, 64 So. 351.
§ 782 (Ala.App.) It was not error to refuse a
charge directing the jury to consider a fact, if
believed, without requiring the belief or finding
to be based on evidence adduced.-Lewis v.
State, 64 So. 537.

§ 782 (Ala.App.) A requested instruction that
it is not the duty of the jury to convict de-
fendant to vindicate the law, or improve public
morals, unless the evidence was so convincing
as to lead their minds to the conclusion that
defendant could not be innocent, is properly re-
fused.-Lovett v. State, 64 So. 643.

§ 783 (Ala.App.) The court did not err in
refusing a requested instruction which directed
an acquittal unless the jury believed that de-
fendants followed the complaining witness, or
went along with him to the place where the al-
leged robbery took place.-Boswell v. State, 64
So. 188.

§ 784 (Miss.) The court, charging that cir-
cumstantial evidence may support a conviction,
must also charge that the evidence must ex-
clude every other reasonable hypothesis than
that of guilt.-Simmons v. State, 64 So. 721.

§ 785 (Ala.App.) That a state's witness, a
white man, inconvenienced himself so greatly,
as shown by his testimony, in watching defend-
ant, a negress, to obtain evidence to substan-
tiate rumor of her guilt of adultery, held to
require the giving of her requested charge as to
disregarding his testimony, in case he had ex-
hibited prejudice against her.-Branch v. State,
64 So. 507.

$785 (Ala.App.) In a trial for homicide, in-

struction that defendant could not be convicted
if there was a reasonable doubt of the truth of
statements as testified to by the state's wit-
nesses as to any material fact held properly re-
fused as misleading.-Hubbard v. State, 64 So.
633.

§ 786 (La.) An instruction that the jury could
consider the interest of accused in determining
his credibility as a witness held erroneous.—
State v. King, 64 So. 1007.

§ 789 (Ala.App.) A requested instruction
that, if there was one single fact proved to the
satisfaction of the jury inconsistent with de-
fendant's guilt, it was sufficient to raise a rea-
sonable doubt should have been given where
there was evidence of facts inconsistent with
guilt.-Doty v. State, 64 So. 170.

A charge "that each and every one of you is
entitled to have his own conception of what
constitutes a reasonable doubt," and that be-
fore the jury could convict the evidence must
convince each juror of defendant's guilt beyond
a reasonable doubt, and that if any juror had
a reasonable doubt defendant could not be con-
victed, held not erroneous.-Id.

§ 789 (Ala.App.) The court's explanation of
the words "satisfied to a moral certainty," in
a charge given at defendant's request, as mean-
ing, not to an absolute, or mathematical, or ir-
revocable certainty, but "convinced beyond a
reasonable doubt," is correct.-Hale v. State,
64 So. 530.

$798 (Ala.App.) On a trial for homicide it
was not error to charge that the jurors all must

agree before they could render a verdict.-Hoot-
en v. State, 64 So. 200.

$7982 (Ala.App.) Where an indictment con-
tains three counts, the court is not required to
instruct the jury to find a verdict of not guilty
as to one or all of the counts separately.-Angle
v. State, 64 So. 646.

§ 7982 (La.) As applied to direction to the
foreman of a jury to sign the verdict "as fore-
man, the word "as" is used in its ordinary
sense, meaning in the character or under the
name of.-State v. Blue, 64 So. 411.

87982 (La.) Where the indictment charges
"burglary and larceny," the court may instruct
that the jury may bring in either a verdict of
guilty or not guilty, and need not instruct that
it may bring in one of such verdicts or a ver-
dict of "guilty of larceny."-State v. Fuselier,

64 So. 493.

$800 (Ala.App.) It is proper for the court to
give of its own motion correct explanations of
the meaning of charges given by it at defend-
ant's request.-Hale v. State, 64 So. 530.

if it was probable that defendant was innocent,
$805 (Ala.App.) A requested instruction that,
the jury should promptly acquit him was ob-
jectionable in the use of the word "promptly."-
McDade v. State, 64 So. 519.

§ 807 (Ala.) A requested instruction which is
argumentative is properly refused.-Clayton v.
State, 64 So. 76.

§ 807 (Ala.) An instruction held properly re-
fused, being argumentative.-Waldrop v. State,
64 So. 80.

tions as to the weight and sufficiency of evidence
§ 807 (Ala.) Defendant's requested instruc-
held properly refused as being argumentative.-
Bryant v. State, 64 So. 333.

§ 807 (Ala.App.) A request to charge that de-
fendant could not be convicted unless every ju-
ror was reasonably satisfied of his guilt, and
was so satisfied from the evidence alone beyond
all reasonable doubt, and to a moral certainty,
was not argumentative.-McDade v. State, 64
So. 519.

§ 809 (Ala.App.) Requested charges, being
clearly involved, confusing, and misleading, are
properly refused.-Hale v. State, 64 So. 530.

§ 811 (Ala.) A requested instruction that in
a criminal case evidence of accused's previous
good character is admissible for him, not only
where a doubt exists of his guilt, but where it
is sought to create a doubt of guilt, is properly
refused, because singling out a part of the evi-
dence.-Clayton v. State, 64 So. 76.

of the evidence and directs the jury to consid-
A requested instruction which singles out part
er that part is properly refused.-Id.

A requested charge which gives undue promi-
nence to parts of the evidence is properly refus-
ed.-Id.

§ 811 (Ala.App.) On trial for homicide, an in-
struction held properly refused as singling out
a particular feature of the evidence and in-

structing the jury to weigh the evidence on that
subject.-Hooten v. State, 64 So. 200.

$814 (Ala.App.) An instruction which hy-
pothesizes a fact of which there is no evidence,
is properly refused.-Hooten v. State, 64 So.
200.

§ 814 (Ala.App.) A requested instruction, that
if any state's witness "has exhibited prejudice
or anger against defendant, and satisfied you
he has not testified truly, and is unworthy of
belief,
you may disregard it," not be-
ing abstract as applied to the evidence, should
be given.-Stinson v. State, 64 So. 507.

*

§ 814 (Ala.App.) A requested charge that un-
less the jury believed that defendant was in
possession of the anvil alleged to have been
stolen and in determining whether he was in
possession they could look to the evidence that

(B) Presentation and Reservation in Low.

er Court of Grounds of Review.

§ 1030 (Fla.) Assignments of error not pred-

§ 995 (Ala.App.) Under Code 1907, § 7635,
providing for the imposition of additional hard
labor under a conviction, in lieu of the pay-
ment of costs, a judgment of conviction, not
showing the court's determination of the time
required to work out the costs at the rate of
75 cents per day, held erroneous.-Woods v.
State, 64 So. 508.

995 (Fla.) Where several defendants are
jointly convicted, the entry of judgment and
sentence should state that the defendants, nam-
ing them, came in person with their counsel in-
to court, and each, being separately asked
whether he had anything to say why sentence
should not be pronounced, says nothing, and
should distinctly set out the judgment and sen-
tence.-Mathis v. State, 64 So. 944.

$996 (Ala.App.) Where a judgment was void
in that it contained a void sentence, the court
could at the same term correct the judgment so
as to impose a valid sentence, notwithstanding a
part of the void sentence was executed.-Minto
v. State, 64 So. 369.

§ 996 (Ala.App.) Recitation in the minute en-
try of the rendition of a verdict and its con-
tents is performance of a clerical function, and
miscopying the verdict is a clerical error, which
may be corrected nunc pro tunc pursuant to
Code 1907, § 4140, authorizing amendment of
such an error.-Lewis v. State, 64 So. 537.

Incorrect judicial action cannot be corrected
by judgment nunc pro tunc at a subsequent
term, and hence a trial court cannot so correct
its original entry as to the degree of the offense
of which defendant was adjudged guilty.-Id.

Where, on a motion to amend a judgment
nunc pro tunc in two particulars, one only of
which could be corrected, defendant did not
question the sufficiency of the showing made by
a separate feature seeking correction as to the
other, it was not error to overrule a demurrer
to it as a whole.-Id.

Where the original verdict is shown to be lost,
the court, on motion to amend the judgment,
had inherent power to substitute that paper on
proper evidence of its contents.-Id.

Where the verdict found defendant guilty in
the second degree, and the minute entry showed
a finding of guilty in the first degree. the court
was warranted in correcting it to conform to the
verdict.-Id.

§ 1036 (Ala.App.) In the absence of any show-
ing of a request for a charge, defendant, con-
victed of concealing stolen goods, cannot have
review of the question of sufficiency of the evi-
dence to show larceny of the property, or its
ownership as alleged.-Frazier v. State, 64 So.
| 162.

No objection to testimony or exception to rul-
ing thereon being shown, its admissibility can-
not be considered on appeal.-Id.

§ 1036 (Ala.App.) The alleged error in permit-
ting a witness to testify was not reviewable,
where no objection was made or ruling of the
court invoked with respect to the giving of his
testimony.-Belk v. State, 64 So. 515.

Where a question asked accused on cross-
examination and objected to was not answered,
the solicitor changing the form of the question,
and no objection being interposed to the changed
form, no error appeared.-Id.

§ 1043 (Ala.App.) A conviction will not be re-
versed for error in allowing an objectionable
question, where the answer is not also objected
and excepted to.-Tiller v. State, 64 So. 653.

§ 1054 (Miss.) Under Code 1906, § 4936, for-
bidding reversal except for errors in the court
below jurisdictional in their character, unless
such errors were made gound of special ex-
ception below, the omission to prove venue was
jurisdictional, and might be assigned on appeal,
though no exception had been taken.-Quillen
v. State, 64 So. 736.

§ 1064 (Miss.) Under Supreme Court rule 6,
par. 3 (59 South. viii) providing that appellant's
right to a review of any ruling shall not de-
pend upon his having filed a motion for new
trial, it is not necessary that error in exclud-
ing evidence be made a special exception in the
motion for new trial, in order to have it re-
viewed.-Wilkerson v. State, 64 So. 420.

(D) Record and Proceedings Not in Rec-

ord.

§ 1086 (Ala.App.) The failure of the tran-
script to show that the circuit court had juris-
diction to try a prosecution for violating the
prohibition law on appeal to it would require
a dismissal of the appeal by the Supreme Court.
Lee v. State, 64 So. 637.

§ 1086 (Ala.App.) Where the record shows no
finding of guilt by the jury, no judgment of
guilt or sentence by the court, and consequently,
no judgment of conviction, the appeal must be
dismissed.-Holland v. State, 64 So. 649.

XV. APPEAL AND ERROR, AND
CERTIORARI.

(A) Form of Remedy, Jurisdiction, and
Right of Review.

§ 1023 (Ala.App.) The action of the court in
overruling a motion for a new trial is not re-
viewable.-McDaniel v. State, 64 So. 641.

§ 1023 (Fla.) There must be a final judgment
to support a writ of error.-Mathis v. State, 64
So. 944.

An entry, reciting that after conviction, notice
of motion for new trial was given by defend-
ants' counsel, and "motion argued and sentenced

the rulings thereon can only be reviewed when
the cause are not parts of the record proper, and
the motions and rulings are made a part of the
record by incorporation in the bill of exceptions.
-Salley v. State, 64 So. 185.

§ 1088 (Ala.App.) A recital in the record that
defendant "is arraigned and pleads not guilty"
shows defendant's presence.-Tiller v. State, 64
So. 653.

$1091 (Ala.App.) Bill of exceptions, leaving
the subject of the exceptions reserved unidenti-
fied, held unavailing.-Woods v. State, 64 So.
508.

§ 1091 (Ala.App.) A bill of exceptions not
showing that, at the time questions were per-
mitted to be asked, the examination of the wit-
ness had been concluded, or that any one con-
ferred with him after he commenced to testify,