The Montgomery advertiser., 1906-11-30

road draln, evidence JI the rental val ue and of the market value of the property just prior 10 the overflow was aonAssible.
 1e waters and water courses; sur face waters; obssrueuon; railroad cul- verts; insun4ciency; punitive da.aaees. Where, in an action agasnst a rall- road company for the overflow of a drain, there was eviuencs Justifying q nnding that defendants were guilty of gross negligence or wantonness in maintaining the drain, etc. lf the jury so found they were entltled lO award plaintim punitive oamages,
 ApLeAl from Hoaslon GIrcuit Court
 Heard beIore hon. Il A. Pearce.
 Reversed and re.aanded. opinion oy Denson, J.
 WeaRIey c. j.. and HaraIson and Do"de-l JJ,, concur.
 GORDON vs THE STATE.
 Murder, (Decided June l4, l90s." 4l
 So. Rep. s4T.l
 1. Witness; children; competency Although a child twelve years of age testified that she did not understand the question, whether she knew the nature of judicial oath, yet. by other answers showed sufficient knowledge of the obligation Of an oath she was properly allowed to testify
 ?. Homicide; instructions--In a prosecution for homicide where The on- ly defense was a denial of the killing. ard the evidence made the offepse mur- der or nothing, a charge that If the jury had a reasonable doubt as to whether the killing was done deliber- ately or premeditatedly. they could not find the defendant guilty of murder in the first degree. and if they had a reasonable doubt as to whether it was done in malice, then they could not find the defendant guilty of murder in either degree. but only of manstaugh- ter. was properly refused.
 3. Criminal law; plea of insanity: time A plea of insanity not interposed at the time of arraignment and not offered until after the jury had been empanelled. when not acenmpa nied by a statement concerning the proof ex- pected to be offered in support of 1t, may be properly stricken by the trial court without an abuse of discretion although 1t as made to appear that at the time of arraignment defendants s attorneys were strangers ,o him and had no means of ascertaining that such plea should be filed.
 4 Sames affirmative charge: deniaL Ut Is always proper to refuse to de- fendant the general charge where there lis evidence sufficient to warrant a con- vietion.
 5, Same; instructions; cireumstantial evidence The evidence not being en- tirely circumstantial .an instruction was properly refused which asserted that in order to warrant conviction on circumstantial evidence, the circum- stances must be SO multiplied as to in- crease the probability of defendant g guilt to a definite extent beyond the reach of mere calculation.
 6. Same.--An instrdction that uniess the jury. after carefully weighing all the evidence, cannot feel an abiding conviction of defendants guilt, they must acquit. was properly refused
 2. Samej reasonable doubt--An in struction requiring an acquittal unless the jury believed beyond "all doubt that the defendant was guilty, requires a too high degree of proof, and Is prop erly refused
 8. Same; weight of evidence.--A charge which asserts that defendants | a conclusive nature and tendency, and must exclude any reasonable supposi- i ton of his innocence is misleading as tending to require a belief on the part | of the jury that the evidence of guilt must be conclusive (Tyson and Simp- | SOB, U, dissent)
 1 g. Same; charges argumentative.-- ! GHdTBGS WHICH dIG mere are always properly refused
 l 10. Same; instructions; reasonab.e e doubt.--A charge which asserts that if l the evidence did not establish the l truth of the charge to a moral certain | ty and beyond a reasonable doubt that | is, to a certainty that convinced and directed the jury's understanding and 1 satisfied their reason and judgment they must acquit required too high degree of proof
 IL Same; presumption of innocence Presumption of innocence being a l conclusion of law, having no relation ] to the condition of mine produced by 1 proof, an instruction was properly .re- 1 fused which asserted that. if after ex- amining and weighing all of the evil l dence. a presumption of innocence in 1 favor of accused was left in the hands
 of the jury, they
 12. Same; circumstantial evihenee7r
 A charge asserting that circumstan- I ,tial evidence Is wnolly inferior in 1 cogency, force and effect to direct eVi. : dence, Is properly refused
 13 Same-An instruction is mis- l leading and properly refused which as- serts that the evidence m the case l should be almost as clear and con vincing as direct evidence. in order to 1 justify a conviction, where there was | direct evidence in the case 1 IA e; witnesses; weight of tes. 1 timony.--A charge asserting that ..ie l jury should be very cautious and care l full in wei ghing the testimony of a named witness Is invasive of he prov. l ince of the jury and properly refused Is. Same: instructions; Ignoring evil dence: degrees Of homicide Where the evidence In the ease would justify 6 conviction of murder In the first de. gree, a charge asserting that the de. , fendant could be convicted of no high. CT degree than murder In the second | degree was properly refused. *Rehearing denied July 6, 1906. Appal from Macon Circuit Court Heard before Hon. Fl. P. Merritt Special Judge.
 Affirmed. Opinion by Simpson
 Weakley, c J, HarHlson Dowd Ill snde-son and Denson, JJ.. concur.