*1 оn the the car operation of in the to ziah settled is too well The rule And unless agent. was his Dailey, theory that he if authority that of require citation Kizziah, right to control Battles had Battles car, invited had owner can then, course, negligence Kizziah’s of could Dailey’s negligence trip, go that un imputed him. think be We not rule And Battles. imputed to not be jury could have found der the evidence the driv Dailey had the same if be would Dailey, agent of that Kizziah was the asked had car, Battles although ing the negligence of Kizziah which evеnt v. trip. Robinson him on him to take imputable Mc to Battles. In would not Faltico A. Leonard, 100 Vt. Leonard, 134 A. 99 Vt. 88, Andrews Co., Minn. Ry. Minneapolis Street negligence “The of was said: trip fact that N.W. imputable plain the driver was not to the would of Battles benefit the sole taken for tiff. had no of the car nor She control we In connection this change the rule. not management. its of of relation master Caslov, Pa. quote from Mork et ux. servant, principal agent, of or or 904: 192 A. being engaged prosecution in the joint of argues hand, plaintiff thе other “On purpose, of common did not exist a between that of car was in the status that her driving In car them. on the occasion in trip was passenger; that while guest question, the defendant agent was the of re- at her her benefit and for undertaken Franzoni, owner, Attilio its at re whose car, nor quest, she no control had quest it, he was driving and he will be held in its her sister to direct did she assume degree responsibil same of care and not, mat- operation; did that the sister ity plaintiff principal that his would agent or law, her servant ter of become have been personally had he operating plaintiff merely she extended because the car and the happened same accident conveyance. accommodation of a respects in other under the same circum an status “It is that the well settled stances.” depend not does occupant automobile of an carefully We have examined the cases served purpose to be upon fact that the appellant cited counsel fоr We hi brief. trip benefit, that or even his any do not think point of them are in be- request. In other or at his instance cause the factual situations are in no wise servant, words, master and the relation of analogous presented to that in this record. agent arise in principal not does Application for rehearing overruled. fact solely from the of this character cases transported occupant the car is LIVINGSTON, J.,C. and FOSTER and some request, at or in connection his STAKELY, JJ., concur. interest, affecting his own matter car, Dailey Although the owner of the accident, driving at the was not time driver of the car be said that the
it cannot
merely
Battles
because
agent
became
trip
taken
Battles’ benefit
alone.
testimony
his
Kizziah
direct
So.2d
On cross-exam-
Dailey
drive.
him to
asked
request
came from
he indicated
ination
THOMAS
STATE.
testimony
Dailey’s
Battles.
Si Nachman, Atty. Gen., Jr., Asst. for the State.
seal of the court, and
such
as so verified
transcript
appeal.
the record on
constitutes
Code of
Tit.
§§
attorney
gen
contention of the
transcript
eral
the record in this
irregular
case is
only
can be considered
review
proper”
“the record
because the
cеrtificate
reporter
appears
court
the record as
transcribed
the clerk and
*4
genuine
is
signature
not
of the
re
court
porter, is without
Chapman State,
merit.
v.
30,
286;
249 Ala.
29
Givens,
So.2d
West v.
395,
246 Ala.
This
is
the defendant from
judgment
a
of conviction of murder in the
BROWN, Justice.
degree
peni
second
and a sentence to the
tentiary for
following
life entered
his sec
1,
statute,
Neither the
Gen.Acts
§
ond trial under the indictment
murder
1943,
423,
1940,
7,
p.
827(1),
Code
Tit.
§
degree.
punishment,
in the first
Such
if the
Supreme
sup
nor Rule 48 of
Court Practice
facts in the case warranted the defendant’s
statute,
plementing
contemplate
that the
conviction,
within
of
the discretion
original transcript
testimony
of the
and in
155;
jury.
State,
Miller v.
54 Ala.
Scott
by
cidents of the trial made
the court re
State,
272-273,
v.
211 Ala.
639
suffering
made no further
“Q.
say
Who
shot
A.
statement
did he
him?
about
to either
the doctor
shooting
Alfred Thomas.
wife,
in attendance or to his
were
who
Yes,
“Q.
A.
sir.
Alfred Thomas?
with him until death.
shooting
“Q.
you
he tell
where
Did
While
statement,
said
“I believe
place?
Yes,
took
A.
sir.
me,”
got
light
he has
considered
“Q.
you
gave
he
Do
recall the address
circumstances
shown
evidence con
sure,
you?
1415 15th
A.
I am pretty
probably
notes that deceased
considered
I
15th
know it
on
Street.
Street.
wound serious,
it falls far short of
showing that
the statements
shooting
testified
“Q.
say
oc-
Did he
how
were made
ap
a consciousness of
under
curred, Mr. Morrison? A. Yes.
death,
impending
time,
proaching
at
“Q.
say
What
about how the
did he
dispel
“sufficient
from
the mind аll
shooting
A. He
said he
occurred?
statement,
motive for
a false
making
can’t remember
door,
knocked on the
and I
the party
view of the fact that
recognized
the name
the woman that
lived there
appear
the fact that he should soon
presence
State,
Maker.”
of his
Parker v.
“Q.
May? A. And
It was Annie
he
260,
51
165 Ala.
So.
fact essential
she started to
said
answer
door and he
admissibility
of such
statement as
told
he
us
Alfred said
would answer
declaration,
dying
bring it
tó
within the
the door.
exceptions
against hearsay
to the rule
tеstimony. The following
il
authorities
“Q. She started to
the door,
answer
lustrate the
necessity
the declarant
say,
then
he heard Alfred
‘I will
he
impending
must
death:
conscious
answer
door?’
I
A.
will 'answer
658;
180,
Ala.
State,
99
13 So.
Justice
Titus v.
door,
opened
and when he
the door
77;
16,
State,
23
Ala.
So.
opened
he
fire.
274;
State,
63,
Blackburn v.
Ala.
So.
“Q.
say
What else
did
that oc-
839;
State,
Pulliam
1,
Ala.
So.
casion? A. He
he was hit and
then
913;
State,
4,
Young v.
95 Ala.
10 So.
returned
fire.”
380;
State,
Hammil v.
90 Ala.
8 So.
cross
On
examination Morrison testified
State,
Kilgore
1;
State,
74 Ala.
Sims v.
know,
exact,
decеased didn’t
to be
139 Ala.
36 So.
Marshall
many
shot,
times he
and that
how
when State,
Ala.
So.
63 A.L.R.
placed
stretcher 560;
*8
493,
State,
Ala.App.
22
Culberson v.
brought
the
he
ambulance
“told me to
397;
State,
1,
117 So.
v.
Parker
165 Ala.
up,
down,”
he
raise
couldn’t lie
and 8,
260;
51
State,
So.
Shikles v.
31 Ala.
repeated,
got
“I believe he
me.”
App.
412;
423,
State,
18 So.2d
Cole v.
76,
762;
State,
Phillips
105 Ala.
16 So.
v.
testimony
The
of the other witnesses
1033;
Ala.App. 218,
3
57 So.
Patillo v.
by the state
offered
to show the declara-
State,
192,
303;
245 Ala.
16 So.2d
Moomaw
the
in
things
tion of
all
deceased was
in
904;
State,
Ala.App. 125,
v.
23
121 So.
the same as the
substance
witness Morris
State,
Ala.App. 72,
24
Parker v.
130 So.
police
One of
son.
officers at
525;
State,
505,
Ala.App.
Ratliff v.
19
station when Wheat came in called for
493;
98 So.
Gissendanner v. State, 18
and he did not
the ambulance
hear all
Ala.App. 199,
835;
89 So.
Fonville v.
of
the deceased’s statement. Deceased
State,
39,
91
688;
Ala.
So.
8
objection
Evans v.
protest
made no
or
about being
State,
563,
209 Ala.
923;
96 So.
Dumas v.
hospital
request
carried
and made no
State,
42,
224;
Ala.
49 So.
medical aid. The evidence
for
shows that
Johnson
State,
1,
v.
102 Ala.
99;
16 So.
State v.
lived until the next morning
deceased
and
Meyer,
Am.St.Rep.
638 for annotation.
o’clock;
between two
three
died
that
a
he remained conscious until
short
goes
evidence
to
time
show that deceased
complain
death
not
his
before
of
more interested in reporting
did
was
the rem
6á0
upon
person.
trespass
Crawford
is a
apprehended
having Thomas
counter
214;
1,
Harris
21 So.
State, 112 Ala.
v.
of
account
medical aid
for
he was
that
24,
his wounds. dwelling upon trespasses a intrudes who State, Marshаll v. relies on The state in such as with intent manner felonious 73, 72, 63 A.L.R. 121 So. 83, 219 Ala. in mind belief reasonable a create the doctor in that case noteWe 560. occupant purpose, such is of the that medical aid to administer called to may killed, the homicide will be testi- doctor case the In that deceased. State, 112 in defense. self Crawford (deceased) went I “When fied: State, 214; Ala. So. Christian said, me.’ I got said, ‘Doctor, she has State, 96 Ala. So. Lee said, He Marshall?’ you, Mr. got ‘Who 407, Am.St.Rep. Ala. 15, So. asleep, the cot lying оn ‘My wife—I I to the wall: heard my face Therefore, after full and careful over, and I turned report gun of case, testimony consideration in this my down running something hot felt including declaration deceased cot.’ fell off the I turned over I back—when dying admitted evidence a declara as Marshall, nothing can do I said, I ‘Mr. tion, opinion we are of the verdict here, you have to take you I will great jury against weight is said, hospital.’ He T think un- it is the evidence not should be allowed I, said, thing ‘It to do.’ necessary.’ to stand. hospital.’” ‘Yes, takе me said, He opinion We are that so further that at the time testimony showed This the observation of Chief much of Justice was made deceased the statement State, in Goldsmith v. 232 Ala. Anderson impending belief of under conscious death 436, follows, as here 168 So. unnecessary. hospitalization applicable: pertinent and fact of the insistence of The mere “ * parties Had all these thing take to do was to that the doctor race, or if had been the same conditions inspired hospital, have may deceased reversed, feel sure that there would we mind, not hope in deceased’s did some verdict and that the have been a different when the fact that change the by passion or present one was actuated race the conscious he had statement corrupt mo- prejudice; perhaps not from was useless. Not belief treatment from an inborn and uncontrol- tives, but The facts above stated so in this case. races, antagonism between two lable case from this. differentiate the Marshall whеn negro a a white man or when kills therefore, opinion are, We negro; antagonism man kills an white committed reversible error the court. in the administration which seldom exists the deceased in statement permitting the justice by strong weak as declaration. dying evidence most other offenses.” the commission of objectionable hearsay, statement was are, therefore, opinion that the We *9 objections specifically which were overruling erred defendant’s court made, accompanied by strenuously motion motion new and for this and for trial all were exclude, of which overruled noted, judgment of con- errors other by by exceptions the court reserved and sentence is reversed and the viction the defendant. will be remanded. cause The is evidence without dis Reversed remanded. pute that the defendant was in his own bedroom, by for occupancy rented as FOSTER, J., concurs. purpose room for the such, was his The law self defense castle. LIVINGSTON, SIMPSON, J.,C. jealousy peace regards with secu J., opinion concur in so much of the dwelling. trespass upon predicate rity A holds that the for admission alleged property. trespass dying It declaration of is more than a its insufficient to warrant evidence, that the verdict of admission great contrary weight jury was erred in evidence, court for trial and the motion new
overruling judgment con-
that for these errors he and is
viction and sentence should and the cause remanded.
reversed Dothan, appellant. Hardwick, G.
W.
STARLING
SIMPSON, Justice. Appeal overruling decree from demur- voluntary rer to bill for divorce alleging abandonment. question vital relаtes to an exhibit part
which made of the bill and is prayed to be ratified and confirmed captioned final decree. exhibit Agreement” “Separation and, among other things, recites:
“Whereas, they have agree- reached an separation. ment “Now, premises consideration of *10 agreed parties that the it is hereto shall separate apart; live that neither or intermeddle with will the other interfere liberty, or her conduct or as to his acts and may carry that each follow and on such рrofession occupation or business -he or may that each shall she choose and have full notes appeal. be on embodied record That day judgment entry The recites: “This transcription purpose serves its when it is Ward, as Solicitor who comes Monroe J. completed and filed with the clerk of prosecutes State, and also comes prescribed, court within time “within proper person and defendant in his own period days of 70 from the date of trial open Solicitor, by attorney in court. for new on which motion trial shall date State, prosecutes and the de- who fo.r the court”, upon by duly have been acted attorney open fendant’s having court by reporter’s authenticated certificate agreed that the defendant was heretofore as to its correctness and that notice there tried under the indictment herein and given by reporter been has to the of conviction verdict of Murder in the Sec- parties attorneys their of record. Code rendered, Degree ond having the verdict 1940, 7, 137, p. Part; Tit. Pocket Rule granted been and a set aside new trial 48, Supreme Court Practice. operation by law defendant has acquitted of Murder the First De- The rule the statute and contem gree; the defendant is being put now plate copy that the clerk the court shall to trial for Murder in the Second Degree transcription, original the verification herein, the indictment under and the de- any objections thereof and made thereto having heretofore duly fendant ar- ruling Judge thereon and all and 14, 1949, March original papers case, on and raigned filed in said having other to on judgment, day plead guilty not and- guilty by minutes and not gether and that insanity under comes now also verify by the same certificate the reason of in his 636 201; Sylvester State, State v. attorney. 72 by There- Ala. and proper person own Standifer, 523; Digest, 6 Port. Alabama law- good and upon twelve jury came Law, l93V2, page 118. Criminal men, towit: ful upon with- entered trial was provides The second The statute law practice correct pleas the usual following contemрlates out that all in criminal cas defendant, ex- rearraignment except es, guilty, guilty, not pleas of the verdict insanity effect of plaining guilty by reason of be writ not acquit- right plead by trial and his ing the first the clerk of the court. and filed Stephens degree. guilty guil in the first tal murder not guilty Pleas of not 820; State, 50, How- ty insanity may pleaded Ala. So.2d by reason of be 18, 954; State, 165 Ala. So. orally writing. ard v. or in Code Tit. State, State, So. 15, seq.; 112 Ala. Crawford 278 et Crawford § 70; p. p. 8 R.C.L. 21 So. 107, § R.C.L. Ala. ain fel- “When the defendant 72-74. §§ requires statute de arraigned brought ony case is arraigned fendant be advised person, quite gen- plead in bar to