Fletcher v. The State.

APPEAL from Covington Circuit Court.

Tried before the Hon. J. W. FOSTER.

B. H. LEWIS and JOHN D. BURNETT, for appellant. WILLIAM C. FITTS, Attorney-General, for the State.

The appellant in this case was indicted and tried for selling vinous, spirituous and malt liquors without a license and contrary to law. He pleaded guilty, and in taxing up the costs in the case the clerk entered an item of thirty dollars as a solicitor's fee. The defendant then moved the court to retax the costs, inasmuch as the item of thirty dollars as solicitor's fee was illegal and excessive, and should have been taxed at seven dollars and fifty cents. This motion was overruled, and on this appeal the overruling of the motion to retax the cost is the only question presented. The judgment of the lower court is reversed, and judgment is here rendered granting the motion.

Opinion PER CURIAM.

Tennessee Coal, Iron & Railroad Co. v. Cotton.

APPEAL from Birmingham City Conrt.

Tried before the Hon. H. A. SHARPE.

WALKER PERCY and W. I. GRUBB, for appellant.

No counsel marked as appearing for appellee.

This action was brought by the appellee against the appellant. The cause of action, as stated, was for the value of services performed on Sundays, by the plaintiff, who was a State convict and had been leased to the de

of service. There was

fendant during his term judgment for the plaintiff, and the defendant appeals. The judgment is reversed on the authority of Sloss Iron & Steel Co. v. Harvey, ante, p. 656, and judgment rendered in favor of the defendant.

Opinion by HARALSON, J.

Boyd v. The State.

APPEAL from the Circuit Court of Marshall.

Tried before the Hon. JAMES A. BILBRO.

No counsel marked as appearing for appellant.

WILLIAM C. FITTS, Attorney-General, for the State.

The appellant was indicted, tried and convicted for murder, and sentenced to be hanged. The record contains no bill of exceptions, and shows that no question of law has been reserved for review in this court. The bill is, therefore, dismissed, leaving the judgment of the trial court to be enforced. The day of execution had passed before the case was decided in this court. Section 4674 of the Criminal Code of 1886, makes provision for the execution of the sentence of the law and the judgment of the court in such cases. The court fixes the day for the execution of the sentence of death only in cases of the affirmance of the judgment of the lower court.-Cr. Code, of 1886, § 4522; Howard v. State, 110 Ala. 23. Appeal dismissed.

Opinion PER CURIAM.

Gibbs v. The State.

APPEAL from Montgomery City Court.

Tried before the Hon. A. D. SAYRE.

No counsel marked as appearing for appellant.

WILLIAM C. FITTS, Attorney-General, for the State:

The appellant was indicted, tried and convicted of arson in the first degree. The only error assigned was the refusal of the court to give to the jury the following written charge requested by the defendant: "If there is a reasonable possibility that some person other than the defendant may have done the act, then the defendant is entitled to an acquittal." The court holds that this charge was properly refused, citing James v. State, 104 Ala. 21; Porter v. State, 107 Ala. 27. The judgment of conviction is affirmed.

Opinion by HARALSON, J.

Adkins v. Myers & Co.

APPEAL from Jackson Circuit Court.

Tried before the Hon. WILLIAM L. STEPHENS, Special Judge.

No counsel marked as appearing for appellant.

J. E. BROWN, for appellees.

In this case, after the recovery of a judgment against the appellees, they moved the court to retax the costs in said cause. The motion was granted, and from the judgment granting said motion, the appeal is prosecuted. The judgment is affirmed for the want of assignment of

errors.

Opinion PER CURIAM.

Pearce v. The State.

(Three cases.)

APPEAL from Elmore Circuit Court.

TRIED before the Hon. N. D. DENSON.

GORDON MACDONALD and N. D. BRAINARD, JR., for appellant.

WILLIAM C. FITTS, Attorney-General, for the State.

The appellant was indicted, tried and convicted for obtaining money under false pretenses. This case is affirmed on the authority of Pearce v. The State, 115 Ala. 115.

Opinion by HARALSON, J.

Young v. The State.

APPEAL from Montgomery City Court.

Tried before the Hon. A. D. SAYRE.

JOE. CALLOWAY, for appellant.

WILLIAM C. FITTS, Attorney-General, for the State.

The appellant was indicted, tried and convicted for burglary. The judgment of conviction is affirmed.

Opinion PER CURIAM.

McDade v. The State.

APPEAL from Montgomery City Court.

Tried before the Hon. JOHN G. WINTER.

No counsel marked as appearing for appellant.

WILLIAM C. FITTS, Attorney-General, for State.

The appellant was indicted, tried and convicted for transporting or moving cotton in the seed after sun down and before sun rise. Judgment affirmed.

Opinion by HARALSON, J.

INDEX.

ACCOUNTS.

1. Action on an account; admissibility of evidence prima facie irrele-
vant.-Evidence prima facie irrelevant is admissible when it is
merely introductory to other evidence which is material and
relevant to the issue involved; and in an action for the price
of goods, claimed to have been sold to the defendant for
another person through plaintiff's agent, it is not error to ad-
mit in evidence a conversation between such other person and
the defendant, wherein he asked the defendant to go with him
to see plaintiff's agent, to get him to order goods from plaintiff,
when it is shown that such conversation was merely prelimin-
ary to the rest of the transaction detailed by the defendant
without objection, to the effect that he went to the plaintiff's
agent and told him that such other person had sent him to get
an order to plaintiff for some goods, that such agent wrote the
order and at the same time stated that he, the defendant, must
stand between him (the agent) and the plaintiff. Steen v.
Sanders, 155.

2. Action on an account; charging goods on books to third persons; in-
structions to jury.-The mere fact that goods were charged on
the books of the seller to certain persons, is not conclusive that
credit was extended to them, and not to another to whom the
goods were claimed to have been sold for such persons; and in
an action to recover the price of goods claimed to have been
sold the defendant for certain other persons, where the de-
fendant pleaded the statute of frauds and interposed the de-
fense that the goods were sold to such other persons and
charged to them, and that he did not agree to be responsible
for the payment for the goods, a charge which instructs the
jury that if the debts in question were, in fact, first charged to
said third persons, then, in order to justify a verdict against
the defendant, it must be shown that the defendant agreed in
writing to pay said debts or one of them, is erroneous and
should be refused. Ib. 155.

3. Same; effect of extending credit; charge to the jury.-In such a case,
a charge which instructs the jury that if they believe from the
evidence that the credit for the goods in question was extended
by plaintiff in the first instance to third persons, and not to the
defendant, then they should find for the defendant, is free from
error and is properly given. Ib. 155.

4. Action on an account; statute of frauds; charge to the jury.-In an
action on account for goods sold and delivered, where the de-
fendant pleads the statute of frauds, in that the debt sued on
was a debt of one W., and that if he agreed to answer for such
debt, his agreement was not in writing, as required by the
statute (Code of 1886, § 1732, subdiv. 3), and it was shown that
the goods were sold and delivered to W., and the evidence was
conflicting as to whether the defendant agreed to be respon-
sible for them, it is error to instruct the jury that if "all the
credit was given to the defendant and W. got the goods from