davidaulloa/AmericanStories huggingface dataset:
The Montgomery advertiser., 1906-07-04
risdiction of the Federal Court.

risdiction of the Federal Court, the cause is not subject to removal
 2. Limitation of actions; pleading; sufficiency of allegation; code form.-A plea to an amendment, that '1t Is bar red by the statute of limitation of one year." upon which issue Is joined, Is not supported by proof. so as to en- title the defendant to the affirmative charge, that the amendment was hled more than a year after the killing oc- cured, where the amendment was within the lis pendens of the original suit, which was filed within the year. Though 1t might be otherwise had the pleader alleged and showed that the accident happened more than year before the filing of the amendment to the complaint. and issue was joined thereon. upon the idea that proven plea, even If immaterial, will entitle one to a verdict.
 3. Same; commencement of action; amendment to complaint; change or form.-The original complaint having
 been filed within the year from the date of the alleged killing, and the amendment. which was filed after the year from the killing. stated the same damnifying act or omission, the amend ment is within the lis pendens of the suit, and relates back to the com mencement of the action and Is not barred by the limitation of one year,
 Appeal from Marshall Circuit Court. Heard before Hon. James A. Bilbro. Affirmed. Opinion by Weakley, C. J. Tyson, simpson and Anderson, JJ., concur.
The Montgomery advertiser., 1906-07-04

dence whether the defendant killed the deceased unlawfully, they should acquit, was properly refused as sub hitting a question of law.
 '. Homicide; instruction; duty to retreat-An instruction that the de- fendant in a prosecution for murder was under no obligation to retreat from his home. and that if, under the circumstances, he believed he was in danger of great bodily harm. and this reasonably appeared to him, he had the right to fire, was properly refused for failure to hypothesize defendants free dom from fault.
 S. Criminal law; argumentative in- struction.-In an instruction for mur- der, a charge that there Is no evidence of the good character of the deceased and the jury may look to the circum- stances of the case to determine whether deceased was a turbulent and violent man, was properly refused as being argumentative.
 g. Same; province of court and jury In a prosecution for murder, an in- struction that If any fact in evidence is clearly open to two reasonable con- structions, one consistent with defend ants innocence and the other not, 1t is the duty of the jury to adopt that one consistent with his innocence, Is prop erly refused as being argumentative and an invasion of the province of the jury.
 10. Homicide; evidence; burden of proof; selfdefense,- a prosecution for homicide. the burden Is on defend ant to show that there was a necessity to take life. or that the circumstances were such as to impress on the mind of a reasonable person the belief that there was such a necessity.
 Cir6nif Cnurf Heard before Hon. James A. Bilbro.
 Affirmed. Opinion by Tyson, J. Weakley, c. J., Simpson and Anderson, JJ.. concur.
The Montgomery advertiser., 1906-07-04
LEE V. CRUMP.

LEE w. ChOMF- Slander-Decided April 5, 19O6.-(4O
 So, Rep. 60e)
 1. Slander; action; variance.-Where the time of the use of the slanderous words was laid in each count of the complaint, under verdict, 1t was un- necessary to prove the precise time as alleged. nor did 1t constitute vari- ance.
 2. Same; proof.-It Is not necessary in an action of islander, to prove the words laid in the complaint literally; 1t Is sufficient if the words charged are substantially proven.
 8. Same; defenses-The fact that defendant had not committed the crime charged was no defense. where the per sons hearing the slanderous words were not aware of the circumstances to which the words referred
 4. Same; words actionabIe per se- The use of the words the plaintiff stole my cabbage" was actlonable per SC.
 5. Same: malice.-If one falsely charges another with infamous crime, because of anger or i'll will, the words are presumed to be used maliciously.
 G. Same; implied malice.-Where the other elements exist. implied nal ice is suf1eient to support the action of islander.
 !. Same; damsSsS.-Panitivs dan'
The Montgomery advertiser., 1906-07-04
Putting it Correctly.


 If Montgomery really wants to be- come a hustling city of an hundred thousand population by the next cen- sus she must work every possibility of her environment to the limit Among the things that the capital city could interurban railways. Nothing would add more to Montgomery as a mercan- tile metropolis, nothing would more surely cause her streets to resound with the music of the tramp of human ity as to become the inter- urban mecca of all South Alabama. Montgomery may never hope to compete with Birm- ingham in an industrial way, but there is no reason why she may not be the commercial metropolis of the State. With proper interurban facilities the retail trade of Montgomery could be quadrupfed in a few years. This Is not conjecture, but a matter that has been proven by experience in many oth- CT cities The capitol of great state. every advantage for an ideal shopping center if her people will but arrange for facilities to get the people to and from the city quickly and cheaply.
The Montgomery advertiser., 1906-07-04

the Minnesota laws, which govern the contract, expressly provide that pre- miums shall not make the contract usurious.
 B. Same; bldding.-The fact that the money borrowed was not put up to the highest bidder did not render the mortgage invalid or usurious. it having been expressly held otherwise by the Minnesota Court.
 4. Evidence; foreign laws; proof The opinion of the court of a foreign State Is properly admitted in evidence to show the construction given the statutes of that State.
 Appeal from Birmingham City Court. Heard before Hon. c. w. Ferguson.
 Affirmed. Opinion by Anderson, J. Weakley. c. J., Tyson and Denson. JJ.. concur
The Montgomery advertiser., 1906-07-04
YO1rNG v STATE.

Larceny-Decided April 12. 1906.-(4o
 So Rep. 656)
 | Evidence; jury questionable weight and probative force of testi- mony Is for the determination of the jury, and where there is a conflict in its tendencies. the affirmative charge is properly refused
 2 Criminal law; request to charge; abstract and argumentative instruc- tions-A charge, that If defendant left O. soon after the larceny was alleged to have been committed, such fact was only a circumstance. to be considered along with all the other evidence, as to defendants guilt, and that the de- fendant was entitled to have the jury consider the fact that he returned to 0 before the arrest, as a circumstance tending to show innocence. is arEu-
The Montgomery advertiser., 1906-07-04

, Heard before Hon. w W. Haralson. Affirmed. Opinion by Anderson. J. Weakley, c. J., Tyson and Simpson, JJ., concur.
 KENNEDY V. STATE.
 Murder.-Decided April 1, 1s06.-(40 So. Rep. 65S)
 1. Homicide; evidence; admissibil- ity.-In a prosecution for murder, where 1t appeared that deceased, a witness, and third person called at the house of defendant on the night of the killing. and that decedent called ! defendant out. the witness's testimony
 that defendant had told him on the af- ternoon preceding the killing that de- | ceased had told defendants daughter | that the sister of the third person re- | ferred to had come to the room of the deceased at o'clock in the morning, | put her arms around his neck, kissed
 him, and begged him not to marry the ! daughter of defendant, but to marry | the presence of deceased and the oth-
 CTS at defendants place on the occa-
 sion of the homicide.
 | 2. Criminal law; province of jury
 The jury alone are the judges of the
 sufflciency of the evidence and cred!bil- l ity of the witnesses in a prosecution | for homicide. 5. Aomlclde' maice' preSumptlon.-
 In case of homicide, the law presumes
 malice from the use of a deadly weap-
 on, and casts on defendant the burden
 of repellng the presumption, unless
 the evidence which proves the killing shows also that 1t was perpetrated
 without malice. and whenever malice is shown beyond a reasonable doubt and | is unrebutted by the circumstances of
 the killing, there can be no conviction
 for a less degree of homicide than mur- l der.
 l 4 Same; self defense; provoking | dificulty-Where the defendant in a
 prosecution for murder provoked the | difficulty by word or act, he Is cut of
 from the plea of self-defense.
 g. Same; degree.-Abusive words
 however opprobrious, are not alone suf-
 fcient to reduce a homicide from mur- | der to manslaughter.
 l 6. Criminal law; instructions; ques = l ton of law.-In a prosecution for mur- | der, an instruction that. if the jury | had a reasonable doubt from the evil
The Montgomery advertiser., 1906-07-04
THE STOLEN HORSE.
An old PrOverb With a New Applica
 fiOw


 The woods are full of "so-cal1ed' remedies for Badness.
 You may call anything in creation remedy, but to use them Is like lock ing the stable after the horse is sto- len.
 Badness and Dandruff are caused by a germ-if you don't kill the germ the germ will kill the hair.
 Scientists have labored with the problem of a preventative for Badness for many years
 Newbro's Herpicide Is the product of a modern idea, and will cure Dandrun and prevent Badness because germs cannot exist when you apply Herpicide. Herpicide Is a valuable hair dressing and scalp disinfectant as we'll as a cure for Dandruff.
 Sold by leading druggists. Send 10c in stamps for Sample to The Herpieids Co, Detroit. Mich. P, c. Fowler. apee- tAl aEonk
The Montgomery advertiser., 1906-07-04
SIMMONS V. STATE.

Assault with Intent to Murder.-De-
 cided April IS. 1906. GAO So. Rep.
 660)
 1. Criminal law; evidence; res ges- tae,-A statement made by the person assaulted, in the presence of defend ant and other persons and during the course of the difficulty. that the de- fendant had a pistol. is admissible as part of the res gestae.
 2. Witnesses; examination; cross examination.-If the defendant, on cross examination of a witness, brings out part of a conversation, the State is entitled to bring out all of 1t.
 B. Homicide; assault with intent to murder: evidence; sufficiency-The ev- idence examined on this prosecution for assault to murder, examined and held insufficient to authorize a convic- ton.
 4. Criminal law; trial instructions. instructions that are argumentatiVe, misleading or abstract are properly refused
 Appeal from Montgomery City Court. Heard before Hon. w. H. Thomas.
 Reversed and remanded. Opinion by HaraIson, J. Weakley, c. J., Dowdell and Denson. JJ. concur.
The Montgomery advertiser., 1906-07-04
THE STATE V. SIMMONS.

 Habeas Corpus.-Decided April IS.
 1906.-(40 So. Rep. 662.)
 l. Habeas Corpus; adjournment; corpus proceeding is pending, may. upon adJourning the trial to later day, admit the prisoner to bail, under Section 4s32, Code. 1896, pending the hearing.
 g. Trespass; notice: defense.-Sec- tion 9. General Acts. 1903, p. 320, which authorizes one to enter upon land un- der the direction of a railroad com pany for the purpose solely of making a preliminary survey of proposed railroad line, subject to liability for all damages done to the lands, consti- tutes a legal cause or good excuse un- der Section 5606, Code, 1896, and when enc enters for such purpose, 1t Is a valid defense to a prosecution for tres pass to realty.
 g. Constitutional law; property rights; deprivation.-Genera Acts, 1903, D. 32O, Section g. is not unconsti- tutional as authorizing a deprivation of property without due process of law, the occupation being purely temporary, and is in no proper sense a taking of property; nor is such provision un- constitutional as being class legisla- tion.
 Appeal from Tuscaloosa County Court Heard before Hon. H. B. Eos ter
 Affirmed. Opinion by Dowdell. J Weakley, c. J., Haralson and Denson, JJ. concur
The Montgomery advertiser., 1906-07-04
BECKLEY V. U. S. SAVINGS & LOAN
 
Bill to Enjoin Foreclosure of Mortgage
 -na naclara It a IIsurinns Cnntract t

Bill 10 Enjoin Foreclosure Of Mortgage
 and Declare It Usurious Contract.
 Decided April 10, 1906-(40 So.
 Rep. 655.)
 1. Building and loan associations; membership; loans; evidence.-Where the proof shows that a party applied for membership in a corporation and received shares and afterwards bor- rowed money and executed mortgage, such party occupies a dual relation and his contention that the contract is void is not supported by the proof.
 2 Same: usurious contract; pre- miums; foreign law-The fact that a premium was charged for loan made In Alabama by a Minnesota corporation did not render the loan usurious, where
The Montgomery advertiser., 1906-07-04
EBERsoLE V. DANIEL.

ASSumpSit.-Decloed AprH 1V' 4SOo'-
 (40 So. Rep. 614.)
 Judgment; res adjudicata; splitting cause for action.-The defendant being indebted to plaintiff by account run ming through several months, gave plaintiff a note for part of the account, on which plaintiff sued and obtained judgment and which judgment defend- ant paid; later plaintiff sued defend- ant on the common counts for balance due on account; held, the cause of ac- tion accruing at the maturity of the note was not the same cause of action for the amount still due on the account, and the suit and recovery upon the note was not bar to an action for the balance of the account. either as res adjudicata, or on the ground that 1t was a splitting of cause of action. Appeal from Birmingham City Court Heard before Hon. Charles A. Senn. Affirmed. Opinion by Weakley, c. J. Tyson, Simpson and Anderson, JJ., con cur.
The Montgomery advertiser., 1906-07-04

mentative and abstract, and It's refusal was proper.
 Appeal from Anniston City Court. Heard before T. W. Coleman, Jr. Affirmed. Opinion by Tyson, J. Weakley, c. J.. Simpson and Anderson, JJ.. concur.
The Montgomery advertiser., 1906-07-04
ALLEN u STATE

ALLEN V. STATE.
 Murder.-Decided April IT, 1906.-(40
 So. Rep 660.)
 1. Jury; summoning; drawing spe- cial venire for trial.-The provisions of Section 5004. Code 1896, are manda- tory in the trial of capital case. and a judgment entry which fails to show that the venire was drawn from the jury box by the judge, Is fatally defec- tive and will not support a conviction. Appeal from Gadsden City Court Heard before Hon. John H. Disque.
 Reversed and remanded. Opinion by Anderson, J. NWeakley, c. J., Haralson, Simpson and Denson, JJ. concur.
The Montgomery advertiser., 1906-07-04
cAPEHART V. MGAHEY.

OAI Decided April 12, 1906.-(4O So. Rep.
 657)
 1. Exceptions. bill of; signing; time of signing; orders.-It is upon the ap- pellant to show by the record that the bill of exceptions was signed within the time granted for signing, and where the record fails to disclose that the bill was so signed, 1t will not be considered. although the bill itself re- cites that the judge signed the same within the time allowed.
 2 Appeal; review, questions review abIe-Where no point is made on the pleadings. and the bill of exceptions cannot be considered. the judgment must be affirmed.
 Appeal from Marshall Circuit Court.
The Montgomery advertiser., 1906-07-04
YOUNG V. WoODLIFF-DUNLA FUR
 NITURE co.
Assumpsit.-Decided April II. 1sos,-

GAO So. Rep. 652.)
 1. Bills and notes; action; com plaint; suficiency.-In a suit on com mercial paper, the party holding the legal title to same is the proper party plaintiff, and a complaint that shows the note to have been made to another than the plaintiff, and alleges that the mote is now the property of the plain tiff" is not sufficient to show the legal title to be in the plaintiff.
 Appeal from Jefferson Circuit Court Heard before Hon. A. A. Coleman.
 Reversed and remanded. Opinion by Simpson, J. Weakley. C. J., Tyson and Denson, JJ.. concur.
The Montgomery advertiser., 1906-07-04

| ages may be awarded on proof of ex- press malice, in an action for slander 8. Same; implied malice.-The law | imputes malice when the words used charged larceny.
 Appeal from Gadsden City Court.
 Heard before Hon. John H. Disque :; Affirmed. Opinion by Weakley. C. J. Tyson, Simpson and Anderson, JJ, concur.
 LADD V. LOOKOUT MOUNTAIN DIs- | FILLING co. | Bill to Enjoin Foreclosure and Cross Bill to Foreclose Mortgage.-De- cided April 10, 1906.-(40 So. Rep. 610.)
 ing terms of mortgage; admissibility-
 Parol evidence is admissible to show
 the consideration and the real nature
 of the transaction. although the mort gage recites certain consideration
 different somewhat from that shown by
 the parol evidence. 2. Mortgages; foreclosure; evidence;
 suficiency.-The evidence in this case stated and examined, and held suffi-
 cient to support a finding that the
 mortgage had not been fully paid, au- | thorizing foreclosure. 3. Evidence; verbal admissions {;
 weight.-The rule that evidence of ver-
 bal admissions is to be received with caution is emphasized when the wit | nesses disagree as to the admission among themselves. and in their testi- mony on direct and cross and after the lapse of some two years. Appeal from Jackson Chancery | Court. Heard before Hon. W. H. Simpson.
 Opinion by weakley, c. J. Tyson. Simpson and Anderson, u, concur.
The Montgomery advertiser., 1906-07-04
HILL v. STATE.

Robbery.-Decided April 4, 1so6.-(Ao
 So. Rep. 654) 1. Robbery; indictment-An indict- ment alleging the taking of property from the person or possession" of an other Is fatally defective, as being dis junctive.
 ?. Same; definition.-While robbery Is the taking of property from the person of another" it Is sufficient if the nroperty be under the personal protec- ton, without being on the person. Appeal from Morgan Circuit Court Heard before Hon. D. w. Speake. Reversed and remanded. Opinion by Anderson. J. Weakley, c. J., Tyson and Simpson, JJ., concur.
The Montgomery advertiser., 1906-07-04
MAYERS v. STATE.

6eIIlng LlQuor WIthout LIcehst.-De-
 cided April 19, 1906.-(40 So. Rep.
 65S)
 Criminal law; appeal; judgment by confessional judgment of conviction in a criminal case Is required to sup port an appeal: judgment of confes- sion will not support an appeal.
 Appeal from Bibb County Court. Heard before Hon. w L. Pratt.
 Appeal dismissed Opinion by Dem son, J. Weakley, c. J.. Haralson and Dowdell, JJ.. concur.
The Montgomery advertiser., 1906-07-04
JAMES " VICKERs, EFT AL Motion to Retax Costs.-Decided April

IT. 1906.-(40 So. Rep. 657.)
 l. Costs; taxation; remedy for er- roneous taxation; motion.-Before re- lief can be had on a motion to retax costs, under Section 1914 of Code, it must appear that the costs complained of have been taxed against the movant.
 2. Same.-It is not enough that a Judgment was rendered for costs. It should further appear that the costs complained of had been improperly taxed.
 Appeal from Jackson Circuit Court Heard before Hon. A. H. Alston.
 Affirmed Opinion by Anderson. J Weakley, c. j.. Tyson and Simpson, JJ. concur.
The Montgomery advertiser., 1906-07-04
BLACK V. STATE.
Assault and Battery-Decided April
 1906-(40 So. Rep. SID

Assault and Battery-Decided April B.
 I906-(4O So Rep. SID
 l. Criminal law; former conviction In the absence of a statute making it so, a conviction of crime before the Mayor of a town. is not a bar to sub sequent prosecution for the same of fense by the State.
 2 Statutes; title; sufficiency.-The act entitled an act to amend an act to incorporate the Town of Geneva Claws, 1S94-S5. p. 79D, is unconstitu- tional so far as the provisions therein making an acquittal or conviction of misdemeanor before it's mayor a bal to a subsequent prosecution in the State courts Is concerned, because not within the scope of the title; the orig inal act not containing such provis- ion.
 Appeal from Geneva County Court Heard before Hon. P. N. Hickman.
 Affirmed. Opinion by Weakley. C. J. Tyson Simpson and Anderson, JJ.' concur
The Montgomery advertiser., 1906-07-04
Head Notes Qf the Decisions
 Of Alabama Supreme Court

Heard before Hon. W. W. Haralson.
 Affirmed. Opinion by Anderson, J. Weakley. c. J., Tyson and Simpson, JJ., concur.
The Montgomery advertiser., 1906-07-04

NASHVILLE. C. & ST. L. KY. " HILL Action for Damages for Death of Minor
 Cfild. Employed Without Consent
 of Parent.-Decided April 5, 1908.
 -(40 So, Rep. 6l2)
 1. Removal of causes; amount in controversy.-Whe the amount sued for is s1,990.0O, and the complaint ccn- tains several counts each count claim ing that amount. and each count con- tained the same damnifying act-fhe wrongful killing-but one recovery can be had. and in no greater amount than the sum stated in one count, and that amount not being within the tu-
Catoctin clarion. [volume] (Mechanicstown, Md.) 1871-1940, 1906-06-21
KNOWS NOW
Doctor Was Fooled by His Own Case For
Time.

IT'S easy to understand how ordinary
people get fooled by coffee when doc.
tors themselves sometimes forget the
facts.
A physician speaks of his own expert
ence:
II had used coffee for years and
really did not exactly believe it was in
juring me, although l had palpitation
of the heart every day.
"Finally one day severe and almost
fatal attack Of heart trouble frightened
me and gave up both tea and coffee
using Postum instead, and since that
time l have had absolutely no heart
palpitation except OIL one or two occa-
sions when tried a small quantity OF
coffee which caused severe irritation
and proved to me must let it alone.
when we began using Postum 1t
seemed weak-that was because we
did not make it according to directions
but now we put little bit of butter
in the pot when boiling and allow the
Postum to boil full IS minutes. when
gives it the proper rich flavor and the
deep brown color.
II have advised q great many of my
friends and patients to leave off coffee
and drink Postum, in fact, l daily give
this advice" Name given by Postum
Co.. Battle Creek. Mich.
Many thousands of physicians use
Postum IN place Of tea and conee III
their own homes md prescribe 1t to
patients. There's Il reason"
A remarkable little book, 1.-THE Road
TO WellyiIie." efn he found In pkgs. =.
Catoctin clarion. [volume] (Mechanicstown, Md.) 1871-1940, 1906-06-21
He Had AIre adv "Eet,"

Il know western Kensas town
where the rules of etiquette are pure
ly upon logical basis" said man
from the short grass country the 9th
er day. 1.-THE daughter of the hotel
keeper at whose hostelry l was liv,
ing, was to be married. At about
eleven o'clock In the evening the wed
ding supper was spread. An old la.
dy came down the table side, passing
the viands to the guests. When she
reached my plate she skipped me and
began again with the next man. The
old lady had seen me eating my sup,
per as usual at six O'clock
"You've et,' she said, as she gave
me the go by. Things began to look
dubious for me. Then an old man
came along with more food He also
had seen me eating at the usual even.
ing hour He SHE'D around me with
look of surprise that / should be at
the feed rack again and said, why,
you've et.'
Everybody had been Saving up
for the occasion so that they might
eat like heroes at that wedding feast.
The fact that | had not been missing
any meals nearly ostracised me in
that happy gathering.-Kansas City
Times.
Catoctin clarion. [volume] (Mechanicstown, Md.) 1871-1940, 1906-06-21
THE PASSING OF MA7RIMONY.

1t is woman's refusal to marry, and
woman's restiveness in marriage-for the
immense majority of our divorces are
asked for by the wife-which so alarm
us today. For both these facts there
is the same explanation; the character
of our women is changing faster than the
character of matrimony. The women OF
the past were as children compared with
the women of today. Some few great
names there always were to show what
was possible to the sex; but the majority
were ignorant. weak. and absolutely $50
lated. Today in America our women are
as we'll educated as men in many cases,
often even more so; and then wide read
ing and general acquaintance with facts
of life, past and present, together with
rapidly increasing organization among
them, gives them a character and cour-
age previously unknown.
This change is not, as some thinkers
claim, a morbid demand for maculine
power and privilege. 1t has nothing to
do with sex. 1t is the development OF
the humanncSs in woman-Charlotte Per-
kins Gilman, in Harpcr's Bazaar.