Salary. A county judge is an inferior judge within the meaning of
the Constitution so far as he is clothed with judicial power, and
his salary can neither be increased nor diminished during the time
for which he is elected, but he is also the accounting officer and gen-
eral agent of the county, and compensation may be made him
therefor under the authority vested in the quarterly court by stat-
ute, and their judgment when exercised cannot be controlled by any
other tribunal. Puckett v. McKee, 24.
COUPONS RECEIVABLE FOR TAXES.
1. Lewdness. Evidence. Testimony showing acts of lewdness proven on
a trial on a former indictment, on which party was acquitted, is ad-
missible to show the nature and character of subsequent conduct
and association between the same parties. Mynatt v. State. 47.
2. County convicts, Corporal punishment. The County Court, in the ab-
sence of express legislative authority cannot adopt rules and regu-
lations prescribing corporal punishment for work-house convicts.
Smith v. State, 744.
3. Self-defense. The trial judge in his charge, after saying to the jury,
that "the son has the right to fight for the father and the father
for the son, under the rules that one has a right to fight in his
own defense,” adds: “If the father is in fault in bringing on the
conflict, then the son cannot lawfully fight in his defense until the
father has declined to fight, or offered to decline it, and this is true if
both parties are in fault in bringing it on, and both fight willingly."
The charge would have been more strictly accurate if it had been
qualified to this effect: If the father was in fault by beginning the
combat, before the son could be excused in stabbing in defense of the
father, it should appear that the latter had abandoned or offered to
abandon, the combat, provided the fierceness of his adversary permit, or he
have time to do so. Crowder v. State, 669.
4. Continuance, Indue excitement. The continuance of a State case at
the first term of the court, on the grounds of too great excitement to
the prejudice of the defendant, rests in the sound discretion of the
court below, but this sound discretion does not mean an arbitrary
discretion, but a sound judicial discretion, and if a clear case of abuse
of this discretion is made out, it is the imperative duty of this court
to reverse and correct it. State v. Poe, 647.
5. Evidence. Different offenses. It is error on trial of a defendant
for one offense, to allow proof of a wholly different offense com-
mitted by the defendant, which is wholly unconnected with, and in
no way elucidates the question of the guilt or innocence of the de-
fendant. To allow such proof will prejudge the minds of the jury
against defendant. Id.
6. For abduction, for prostitution and concubinage, under section
4618 of the Code, the defendant is guilty, though the abduction may
be with the consent of the female. Tucker v. State, 633
7. Indictment. An indictment containing two counts, one for abduc-
tion for prostitution and one for abduction for concubinage, is
good. Two offenses of like nature, punishable alike, may be included
in the same indictment. Id.
8. House burning. A barrel house attached to a cooperage establish-
ment is a "house" within the meaning of the Code, sec. 4668, for
the burning of which a person may be convicted under that section.
Pike v. State, 577.
9. Venue. The venue is sufficiently proved in a trial for arson by
the proof of the prosecutor that he lives in the county in which
the indictment is found, and the house burned was his property, fifty
yards from his dwelling, and outside of its enclosure. Id.
10. Disturbing public worship. Upon the trial of defendant for wilfully
disturbing an assemblage of persons met for religious worship, it is
not error to charge that if the defendant voluntarily entered into a
fight at the church door, and thereby disturbed a worshipping assem-
blage in the church, he would be guilty. Wright v. State, 563.
11. Horse racing. Selling pools. A sale of a pool in this State on
a horse race run upon a track outside of the State, is gaming. Ed-
wards v. State, 411.
12. Assault. It is error on the trial of an indictment for assault and
battery to charge the jury thus: "If you find from the evidence
that the defendant provoked the assault by word or act, and then will-
ingly engaged in the fight, he would be guilty although he may
have been first assailed or stricken by the prosecutor." Smith v. State,
13. Change of venue. The application for change of venue, is ad-
dressed to the sound discretion of the court, and after the defendant
has introduced his affidavits to sustain his motion, and the judge has
satisfied himself by an examination of by-standers, it is not error for
the court to refuse to hear any further proof offered by defendants.
Holcomb v. State, 417.
14. Severance. New trial. Where two defendants have been jointly in-
dicted, and a severance denied, and they have been prosecuted in
good faith upon reasonable grounds, and not merely for the purpose
of preventing one from being a witness for the other, and one is ac-
quitted, and the other is convicted, the latter will not necessarily
be entitled to a new trial for the purpose of obtaining the evidence of
his co-defendant, even though it appear that the latter had full
knowledge of the facts. If the conviction be well sustained, and the
presiding judge is satisfied with the result, it will not constitute re-
versible error, even if he, on this ground, refuse a new trial, other-
wise, a severance must be had, or a new trial, if one of the parties are
acquitted, in every case where the one acquitted has knowledge of
material facts. Id.
15. Charge of court. Upon the trial of an indictment for stealing a
mule, there is no error of which defendant can complain in the
following charge: "If you find from the proof that the prosecutor,
with others, agreed or arranged with the principal witness for the
State that he and defendant should steal his, the prosecutor's
mule, then the defen lant would not be guilty; but on the other hand,
if you find from the proof that the defendant formed a design to steal
mules, and communicated this design to the principal witness, or if
the defendant and the principal witness formed the design to steal
mules, and the prosecutor, with others, being informed of the fact,
arranged with the principal witness to so conduct matters as that the
defendant might be detected and caught, then the defendant would be
guilty." Me Adams v. State, 456.
16. Eridence. There is no error in sustaining an objection to a ques-
tion of the defendant, the expected response to which would not
be relevant to the issues on trial, nor of any service to the defendant
unless coupled with other evidence not offered. Id.
17. Sime. Now trial. When a prisoner's guilt is clearly established
by direct testimony, it is no ground for a new trial that evidence
was introduced not strictly admissible, if the court can see that the
defendant was not prejudiced thereby. Id.
18. Perjury. Indictment. Challenges. Where the defendant is charged
in an indictment in two counts with perjury at different times and
places, he is only entitled to ten challenges. Smith v. State, 385.
19. Same. Same Two counts.
Election. It was not error to refuse to
quash an indictment for perjury, which in two counts charged the
defendant with perjury at different times and places, nor was it
error in the trial judge to refuse to compel the attorney-general to
elect upon which count he would prosecute. Id.
20. Murder in the first de pree. Intoxication. The rule extracted from
the decisions of this State in regard to drunkenness in trials for
murder in the first degree is: If drunkenness exists to such an
extent as to render the defendant incapable of forming a premed-
itated and deliberate design to kill, then of course he cannot be guilty
of murder in the first degree; still if drunkenness be not to this ex-
tent, nevertheless the jury may consider the drunkenness in connec-
tion with all the facts to see whether the purpose to kill was formed
in passion produced by a cause operating upon a mind excited with
liquor, not such. adequate provocation as would reduce the killing to
manslaughter, but nevertheless such as produced passion in fact and
reduce the killing to murder in the second degree, or whether not-
withstanding the purpose to kill was formed with deliberation and
premeditation, for a drunken man may be guilty of murder in the
first degree if the drunkenness be not to such an extent as to render
his mind incapable of deliberation and premeditation. Cartwright v.
State, 376.
21. Convicts. Corporal punishment Convicts in the penitentiary, can-
not be punished except as authorized by statute, except by authority
of the Board of Inspectors of the prison. The warden of the peniten-
tiary has no power to inflict corporal punishment, except the Board,
in its discretion authorize such punishment in each particular case.
The Board has no authority to delegate this discretion to inflict pun-
ishment to the warden. Boone v. State, 739.
22. Selling liquor within four miles of incorporated institutions of learning.
Buyer not guilty. Under the act of 1877, ch. 23, which makes it a
misdemeanor, subject to both fine and imprisonment, to sell or tip-
ple any intoxicating beverage within four miles of an incorporated
institution of learning, the buyer of the liquor is not guilty of the of-
fense. Harney v. State, 113.
23. Charge of court. Special instructions. The defendant in a criminal
prosecution is only entitled to have the law applicable to his case
fully and fairly stated in a judicial form, and cannot of right de-
mand special instructions, otherwise worded, upon points already
thus stated. Rea v. State, 356.
24. Same. Same. Where, therefore, the court has properly charged
the law in a case of circumstantial evidence, the defendant is not en-
titled to special instructions to the same effect, laying stress now upon
the evidence necessary to establish the hypothesis of guilt, now upon
the certainty required to exclude every other hypothesis, and now
upon the duty of the jury in weighing the evidence. Id.
25. Same. Circumstantial evidence, It is not error, after a proper
charge in other respects correct, in a case of circumstantial evidence,
to refuse to charge that the jury should not convict on circumstantial
evidence unless it was as fully satisfactory to their minds as would
be the positive swearing of one credible witness that he saw the act.
Id.
26. Evidence. Record. An objection to a record offered in evidence
should specify the ground of objection. Id.
27. Same. Same. Upon a trial for murder, where malice on the
part of the defendant to the deceased must be shown, evidence is rel-
evant that there had been a criminal trial in which the defendant
was the principal witness for the State, and had been discredited by
the deceased, whereby the prosecution failed, and the defendant was
greatly enraged against the deceased, and the record of the case is the
best evidence as far as it goes. Testimony of a mistrial in that case
would not contradict the record showing a judgment of nol. pros. Id.
28. Same. Memoranda of judge's docket. The memoranda of a judge
on his trial docket are not a part of the record, nor competent
evidence, but where the only object of its introduction was to show
a mistrial in a particular case otherwise abundantly proved without
objection, its admission would be no ground of reversal. Id.
29. Same. Where, upon a trial of murder, the State, to show mal-
ice, has proved repeated threats made by the defendant against the
deceased, it is not error to exclude, upon objection by the State, evi-
dence tendered by the defendant that the witness had heard him say
that he had no enmity against the deceased, wished to be friendly,
and had sent him word to that effect. Id.
30. Same. Circumstantial. The circumstances, in a case of purely cir-
cumstantial evidence, held sufficient to sustain a verdict of murder
in the first degree. Id.
See CONTRACT; PLEADINGS AND PRACTICE; INSURANCE; INJURIES
RESULTING IN DEATH.
Contract. In simple breaches of contract, the contract itself must give
the measure of damages, and a jury would not be warranted in es-
timating the damages as in an action of tort or quasi tort. Ins. Co. v.
Heidel, 488.
Representations or statements made by a vendor
to a vendee, does not operate as an estoppel on another vendee of
same vendor, so as to make the second vendee liable in damages, to
make good the representations of the vendor to his first vendee.
Lowry v. Petree, 674.
See CONTRACT; VENDOR AND VENDEE; CHANCERY PLEADINGS AND
PRACTICE; CRIMINAL LAW.
|