The Montgomery advertiser., 1906-03-13
HeAd-Notes Of the Decisions
 of Alabama Supreme Court

tried on all the lndlcln nents jointly. 8. Same; verdict; senIenee.-where it appears that only one sentence was
 meted out to defendant, although he was tried on several indictments at the same time, a verdict finding the defendant guilty as charged will be referred to either one Of the indict- ments upon which he was tried, and is not available to the defendant to re- verse the judgment. ana sentence of conviction.
 I Appal from Montgomery City Court. Heard before Hon. w. H. Thomas, Af- firmed. Opinion by Denson. J. Me- Clellan, c. J., Tyson. Dowdell, Simpson and Anderson U. concur.
 KENNEDY V. RAINEY ct al. Decided Nov. 22 Notwithstanding De- nied Jan. s. 1906. (39 So. Rep. S13). i. Partition; effect upon title.-Parti- tion operates upon the possession, and not upon the title. serving merely to sever the unity of possession existing g. Adverse possessioni character; 1 necessity of hostile possession.--It ap- bearing that prior to the setting off of the land to the defendant by partition, the plaintiff had title to the same. the fact that thirty-five years had elapsed between the partition and the bringing of the action of ejectment. during which time defendant had remained in possession, raised no presumption of title in the defendant, 1t appearing fur ther that the original acquisition as we'll as continued possession of the defendant had been in subordination to plaintiffs fee title.
 Apepal from Selma City Csurt. Heard before Hon. J. W. Mabry. Reversed and remandedh Opinion by Dowdell. J. Haralson, Anderson and Denson, JJ, concur.
 LETCHER V. THE STATE. Decided Jan. IS. 1908. (39 So. Rep. 922) | l. Indictment; conviction of offence included in charge.-There may be a conviction of assault with intent to murder under an indictment charging murder, yet the assault must be con- nected with and form part of the act charged in the indictment. 2. Same.-On trial on an indictment for murder where the evidence shows the killing was with a pistol, the de- fendant cannot be convicted of an as- sault with a shot gun occurring sew eraI hours before, there being no con- nection shown between the assault and the killing.
 B. Witnesses; cross s-examination.- Where the State on an examination of witness draws out part of the con- versation, the defendant is entitled on cross-examination to have witness give all or the conversation.
 4. Homicide; assault with intent; in- Structions.--A charge instructing the jury that if they believe beyond a req sonable doubt that defendant was lying it wait and shot a person with gun, he would be guilty of an assault with intent to murder, is erroneous in omit ting the constituent element of ma licious intent to take life.
 Appeal from Macon Circuit Court. Heard before Hon. s. l.. Brewer. Re- versed and remanded. Opinion by DowdeIl, J. Haralson, Simpson and Denson,~JJ., concur.
 WILSON " MASON.
 Decided Nov. 22. 1905; (So. Rep 9i6.)
 |. Appeal; record; bills and excep- tions; signing in Yacation.-Where bill of exceptions is signed in vacation after the adjournment or the term of court at which the case is tried. an or der of court hxing a rTme Tn vacation for signing the bill or exceptions must appeal in the record proper. and the omission of such an oFder from the rec ord cannot be supplied py recital in the bill of exceptions.
 ,. Same; dismissal; failure to show Judgment.-Where the record fails to show the Judgment of the flower court, and what purports to be it's judg- ment appears only in the bill of excep- tions, an appeal from the Judgment will be dismissed.
 Appeal from Probate Court. Coneeuh County. Heard before Hon. F. J. Dean Dismissed. Opinion by Haralson, J. DowdelI. Simpson, and Denson, JJ., concur.
 WESTERN RAILWAY OF ALABAMA
 V. STONE.
 Decided Dec. l9. 1905. (39 So. Rep. 72o).-
 1. Railroads; injuries to cattle; pleading; suficiency In an act