The fact that a grand juror was not compeJurors' certificates, see "Negotiable Instru- tent is waived by not pleading such fact in ments."

Pleas..

The trial court, in its discretion, may refuse to allow plea of guilty to be withdrawn, and not guilty pleaded. (La.) 32.

A plea to an indictment naming defendant as "R. N., alias R. T.," alleging defendant's name to be "R. T.," and that he had no alias, is bad. (Ala.) 767.

Former jeopardy.

Where the verdict of guilty of murder has been reversed because it did not ascertain the degree of the crime, a second trial will not put accused in jeopardy a second time. (Fla.) 837. An accused is not put in jeopardy until the indictment is read. (La.) 607.

Continuance.

An affidavit for continuance which does not state the facts to be testified to by the absent witness is insufficient. (Fla.) 836.

An accused is not entitled, as of right, to a postponement, to await the result of the trial of a codefendant whose testimony is desired. (La.) 607.

Evidence.

On trial for larceny committed two years before defendant's arrest, he may be asked, on cross-examination, as to statements showing flight. (Ala.) 621.

Rules as to the admissions of the accused's declarations, and as to the credibility thereof, considered. (Fla.) 92.

Opinion evidence.

On trial of a person for cursing in the hearing of a female, a witness may state whether in his opinion she was near enough to hear it. (Ala.) 862.

A physician who testifies that he could not tell by looking at a wound whether it was made by a rifle or a pistol ball is incompetent to give his opinion that the wound was caused by a rifle ball. (Ala.) 409.

Character.

Where defendant's credibility is not attacked, evidence of his reputation for truth is not admissible. (Ala.) 877.

A witness who has testified as to defendant's good character may be asked if he has heard of defendant's stealing goods from a certain store. (Ala.) 878.

Sufficiency.

Recalling accused.

The court can compel the accused, who has offered himself as a witness, to be recalled for further cross-examination. (Ala.) 621.

State may recall defendant, who has testified for himself, and examine him as to his identity with person shown by justice's docket to have been convicted of petit larceny. (Ala.) 878. Arguments of counsel.

It is proper to restrain defendant's counsel from commenting on state's failure to introduce certain witnesses to prove whether threats were made by deceased before the killing. (Fla.) 841.

Where the witnesses are few, and the evidence is not conflicting, it is not error to limit defendant's counsel to 25 minutes for argument. (Ala.) 570.

The closing argument for the state may be made by associate counsel employed by the district attorney. (La.) 141.

Instructions.

It is error to refuse to charge that if there is a probability of defendant's innocence the jury must acquit. (Ala.) 409.

An instruction that the "burden of proof is on defendant to establish his alibi, and that it must be done to your satisfaction," exacts too high a degree of proof. (Ala.) 409.

It is proper to refuse to charge that "if there is a probable doubt of defendant's guilt the jury must acquit." (Ala.) 409.

An instruction not based on any evidence in the case is erroneous. (Miss.) 261.

An instruction invading the province of the (Miss.) 261. jury is erroneous. Argumentative instructions are properly refused. (Ala.) 860.

It is within the discretion of the court to instruct that the jury may take into consideration the fact that any of the state's witnesses are under indictment for the same offense, in determining the weight of their evidence. (Ala.) 359.

An instruction that the reported evidence of deceased witnesses is entitled to the same consideration as if they had testified is erroneous. (Miss.) 267.

Instructions not based on the evidence are

properly refused. (Miss.) 268.

It is error to charge that statements and admissions by the prisoner should be received with caution, when it cannot be said that the jury understood that such caution should be ex

A joint motion by codefendants for discharge ercised in the prisoner's favor. (Fla.) 92. for insufficiency of evidence should be overruled when there is sufficient eivdence as to one. (Ala.) 792.

Where there is no evidence that the crime was committed in the county, a motion for defendant's discharge should be granted. (Ala.)

792.

Reasonable doubt.

A charge that, if the jury have no reasonable doubt of defendant's guilt, evidence of his good character can cause such a doubt, is erroneous. (Ala.) 634.

It is proper to refuse to instruct that, if the jury find the former life of the accused was such that the act charged would not naturally find place in it, they might permit such conclusion to raise a reasonable doubt of his guilt. (Fla.) 815.

dence, they must convict, is erroneous as failA charge that, if the jury believed the eviing to require belief beyond a reasonable doubt. (Ala.) 538.

An instruction to find defendant guilty if jury believe that he formed a design to and did kill

Confessions made under a threat are inadmis- deceased, without charging as to reasonable sible. (Ala.) 859.

Evidence as to the corpus delicti considered, and held sufficient to warrant admission of confession. (Ala.) 868.

doubt, is erroneous. (Ala.) 853.

An instruction that if any juror has a reasonable doubt of the guilt of the accused the jury should acquit is error. (Fla.) 836.

A charge that, if there is a "reasonable possibility" of innocence, the jury should acquit, is properly refused as too broad. (Ala.) 560.

The phrases "beyond a reasonable doubt," and "to a moral certainty," are legal equivalents. (Ala.) 772.

Verdict.

A verdict of guilty of assault with a dangerous weapon is not responsive to an indictment for shooting with intent to kill. (La.) 71.

A jury, in homicide case, that returned a verdict of guilty of manslaughter in the first degree, were properly directed to retire, and return a verdict in proper form. (Fla.) 757.

New trial.

Defendant is entitled to new trial if jury read, during trial, newspaper containing reports of evidence, accompanied by remarks unfriendly to defendant. (Miss.) 526.

Improper remarks of district attorney are not cause for new trial, if no objection is interposed, unless they are a most extreme abuse of privilege. (Miss.) 526.

That a juror during the trial separated from the other jurors, went into a store, and wrote a note is, if unexplained, cause for new trial. (Miss.) 526.

Where a bailiff in charge of a jury said to one of the jurors, "Why, John, plain case," the verdict of guilty will be reversed. (La.) 181.

Appeal.

There is no appeal from a judgment overruling a motion for a new trial. (Ala.) 768.

An entry reciting verdict, assessment of fine, and confession of judgment by defendant and sureties shows no judgment as basis for an appeal. (Ala.) 539.

Where defendant does not employ counsel, and declines the services of one placed at his command, he cannot object to errors occurring at the trial. (La.) 905.

The refusal to give the general charge will not be considered if the bill of exceptions does not contain all the evidence. (Ala.) 767.

The refusal of an instruction will not be considered on appeal if no separate exception was taken. (Ala.) 767.

Affidavits used on a motion for new trial cannot be considered, unless in the bill of exceptions. (Fla.) 723.

An overruling of defendant's application to withdraw plea of guilty, and plead in abatement, will not be considered when the matter to be pleaded is not in the record. (Miss.) 268.

Where the record shows that the improper expression of an opinion by the prosecuting officer as to defendant's guilt produced no harmful result, and no action by the court in regard to it was asked by defendant, the conviction will not be reversed. (La.) 141.

A harmless error will not justify reversal of judgment. (La.) 187.

A question asked as to whether accused had been convicted of petit larceny is without prejudice if answered in the negative. (Ala.) 878.

Where the discretion of the court in refusing a continuance is not abused, it will not be disturbed. (Fla.) 836.

Presumptions.

Where there is no bill of exceptions to the overruling of a motion in arrest of judgment, it will be presumed that no grounds existed therefor. (Fla.) 837.

Where the bill of exceptions fails to show that a motion to quash a venire was made in time, that presumption as to time will be made which supports the judgment. (Ala.) 766.

Refusal to quash will be presumed to be correct where the grounds set out in the motion do not appear in the record. (Ala.) 327.

Cross-Examination.

Where transcript fails to show opening of the See "Witness." court, or that grand jury was ever impaneled, and is otherwise defective, the judgment will be reversed. (La.) 77.

Where no instruction involves any inquiry into the sufficiency of the evidence, or as to proof of venue, failure of the bill of exceptions to show that the venue was proved will not reverse the judgment. (Ala.) 627.

To reverse the verdict on the ground that it is contrary to the evidence, all the evidence must be presented to the appellate court. (Fla.) 92. Where the transcript of the bill of exceptions is interlined, it will not be recognized on appeal. (Fla.) 723.

Curators.

See "Executors and Administrators;" "Guardian and Ward;" "Infancy."

CUSTOM AND USAGE.

A customer of a warehouseman is liable for expenses incurred in collecting insurance when he knows of custom of warehouseman to keep goods insured. (Ala.) 48.

Knowledge of parties of custom-Necessity. (Ala.) 48.

The fact that contract of sale names a price "f. ~ custom to vary meaning of words "free on b." does not render admissible proof of board." (Ala.) 672.

DAMAGES.

Ruling on demurrer appearing only in bill of On dissolution of Injunction, see "Injunction." exceptions is not reviewable. (Ala.) 896.

Where the court has given 8 or 10 instructions asked for, and refused others, errors as to the refused instructions will not be considered. (Miss.) 267.

Action of the court in refusing instructions on the ground that equivalent instructions had been previously given, considered. (Fla.) 92. An error in a written charge by the judge will be noticed on appeal, if not presented by bills of exception, only if it is gross and unambiguous. (La.) 141.

Damages for expected profits must be clearly established. (La.) 122.

In action for polluting stream, damages can be had only for injury while pollution lasted, and till such time as the deposit should be washed away. (Ala.) 167.

Allowance of nominal damages in action for wrongful attachment. (La.) 301.

In an action for failure to deliver a telegram announcing the illness of a relative, where, by delay, the receiver was not able to reach her

before her death, the question of punitive dam-1 ages is for the jury. (Ala.) 579.

Sufficiency of evidence to justify punitive damages against railroad company for injuries received by passenger in collision at railroad crossing. (Ala.) 495.

Measure.

Ambiguity of description of land excepted from a deed does not make the deed void for

uncertainty. (Miss.) 264.

A bill to establish a lost deed is demurrable which fails to show how or when it was lost, or its contents, or the consideration given there for. (Ala.) 557.

Defective Appliances.

Where performance is prevented by one party, the measure of damages is the difference between the price and the actual cost of the work See "Master and Servant." to be done. (Ala.) 46.

Delivery.

Where a buyer refuses to accept goods sold, the seller can recover the difference between their market value and the price bargained for. Of deed, see "Deed." (La.) 247.

Damages for failure to deliver as agreed is the difference between agreed price and true value. (Ala.) 622.

Damages for breach of contract-Deduction of money otherwise earned. (Ala.) 46.

DEATH BY WRONGFUL ACT.

A suit by a mother for the death of her son is no bar to a similar suit by the personal representatives. (Ala.) 287.

In action by widow and children, defendant cannot introduce against all the plaintiffs an extrajudicial admission by the widow, since the institution of the action that she was not married to deceased. (La.) 514.

The probability of decedent's marrying and having children, who might survive him, is too remote to be considered in estimating dam(Ala.) 287.

ages.

Dentists.

See "Physicians and Surgeons."

DEPOSITION.

A mistress is not entitled to half of the prop erty of a man on his decease as the result of their joint industry, where there is no evidence that she furnished any money for its purchase. (La.) 922.

Debts of the heirs are subject to collation like donations by the ancestor. (La.) 907.

Prescription is not a bar to the collation of debts of the heirs, as running at any time prior to the death of the ancestor from whom they inherit. (La.) 907.

Discharge.

See, also, "Acknowledgment;" "Fraudulent Con- See "Release and Discharge." veyances;" "Vendor and Purchaser."

Delivery in escrow, see "Escrow."

Of married woman, see "Husband and Wife" Recitals as evidence, see "Vendor and Purchaser."

Reformation and cancellation, see "Equity."

A conveyance by an administrator, who was also devisee, of land of an estate, vests only

the interest as devisee, where it does not recite execution in representative capacity. (Miss.) 734. Where the owner of land executes deeds to certain tracts of land to his son, and gives them to him to put in a trunk belonging to the grantor, and afterwards destroys them, there is no delivery. (Miss.) 732.

Where a deed conveying a right of way provides that other roads may have right to run parallel tracks on such right of way, it is a covenant of limitation, for whose breach ejectment will not lie. (Ala.) 207.

DISCOVERY.

A bill alleging that complainant had paid rent for property belonging to a married woman to her husband, as her agent, and also to her, and asking that one or the other should refund, cannot be maintained. (Miss.) 531.

DISORDERLY CONDUCT.

Prosecution under Cr. Code, § 4031, for using abusive or insulting language in the hearing of one's family, or in the presence or hearing of a female; sufficiency of proof. (Ala.) 862.

Dissolution.

Of injunction, see "Injunction."