Page images
PDF
EPUB

same, or you may believe a part and disbelieve a part, as you, in your judgment, may deem to be just and right." Such instructions should not have been given. They trespassed upon the functions of the jury, as shown by the authorities above. The necessity for the exercise of caution in receiving evidence of verbal confessions is founded on the theory of protecting the accused, (1 Greenl. Ev. 214,) but it cannot be said that the jury's understanding of the first paragraph of the charge quoted was that caution should be exercised in his weighing the statement referred to. v. State, 21 Fla. 599, 609, 610. should have been permitted to consider the statement without this comment from the court; and, as the case has to go back, it is proper that we should so state, though no exception was taken to the charge.

favor in Andrews The jury

The judgment is reversed, and a new trial awarded.

MARSHALL v. REAMS. (Supreme Court of Florida. Nov. 6, 1893.)

CUSTODY OF CHILDREN-PUNISHMENT.

1. The mother has the superior legal right to the custody and control of her minor illegitimate children, and can transfer such rights and custody to another; but the rights of the mother or her transferee are not absolute and beyond control.

2. In all contentions for the custody and control of minor children the benefit and wel fare of the child are the principal matters which guide and control the courts in awarding custody. The ties of nature and of association, the character of the applicant for the child, its age, health, and sex, the moral or immoral surroundings of its life, the benefits of education and development, and pecuniary prospects, as well as other considerations, enter into the judicial determination.

3. Where the child has reached the age of discretion, it will often be allowed to make its own choice; but this is not a controlling right of the child. Welfare controls choice, and the court will not permit the choice of the infant to lead it into an improper custody. The rights of parents and guardians will also be respected, and such rights will not be disregarded by the courts in order to gratify the mere wishes of a child, when the parent or guardian is a proper person to be intrusted with its custody.

4. There is no fixed age when the discretion of a child begins, but mental capacity is the test.

5. While one standing in loco parentis may moderately chastise for correction a child under his control or authority, yet, where it is shown that an uncle to whom a child has been committed to raise by its parent has inflicted immoderate and cruel punishment on it to such an extent as to alienate its feelings, and to cause it to desire a liberation from the uncle's control, a court should not, on habeas corpus, restore by coercive order the child to the uncle, where it is made to appear that the child has reached the age of intelligent discretion, and has deliberately chosen to remain with another, against whom no objection can be made, and who has obligated himself to provide for the child in a manner more favorable than would be its condition with the uncle.

(Syllabus by the Court.)

Error to circuit court, Duval county; R. M. Call, Judge.

Petition in habeas corpus by Henry Reams against F. F. Marshall to determine the rights of the parties to the custody of Edward Reams, a minor. There was judgment for petitioner, and defendant brings error. Reversed.

J. R. Challen, for plaintiff in error. John Wallace, for defendant in error.

MABRY, J. Henry Reams, in his petition for habeas corpus presented to the circuit judge, alleged that F. F. Marshall, without lawful authority, held in custody one Edward Reams, a minor, and that petitioner was entitled to the custody and control of said minor. The right to the custody and control of the minor is based upon the alleged fact that his mother, before her death, gave him to petitioner, his uncle, as his own child, to raise and educate until he became 21 years old; and that petitioner has raised him from the age of 3 years up to the time of filing the petition, when he was between 15 and 16 years old. The mother of this child was unmarried, and the petition alleges that he had no father.

In his return to the writ, F. F. Marshall states that he held in his care and custody the person of Edward Reams by virtue of an order, judgment, and decree of the court of the county judge of Duval county, granting and assuring the custody of said minor to him by an indenture of apprenticeship then in full force and effect; that the minor, Edward Reams, was over 16 years old, and desired to remain in the care and custody of him, said Marshall, who is able and willing to care for, educate, and prepare him for future usefulness and independence; and that the petitioner, Henry Reams, was unfit and unable to care for, educate, and train the said Edward Reams, and had treated him so unkindly and cruelly as to alienate him; and he refuses to go to, and positively refuses to live with, the said petitioner. The return also denies that Edward Reams was given to petitioner as alleged, and that he raised him.

The circuit judge, after hearing the evidence, awarded the care and custody of the person of Edward Reams during his minority to the petitioner, Henry Reams, as it appeared that he was a proper person to have such care and custody, and that Marshall Marshall pay the costs of the proceedings. has sued out a writ of error.

The testimony tends to show, and we accept it as sufficient to sustain the conclusion, that the boy, Edward Reams, when not over three years old, was given by his mother just before her death to her brother, Henry Reams, to raise and care for during minority; and that, with the exception probably of one or two years immediately after he mother's death, this boy has remained con

tinuously in the family and under the control of his uncle up to the time he went into the employment of plaintiff in error, which was some time in May, 1893. The boy's mother was unmarried, and he had no father.

The mother has the superior legal right over all others to the custody and control of her minor, illegitimate child. No claim of the father is presented in the case before us, and it is perfectly clear from the authorities that the mother of Edward Reams had the legal right to transfer his custody to her brother, Henry. Some of the English cases say that the right of the mother to the control of an illegitimate child continues until it arrives at the age of 14, when it may exercise a choice. The two recent cases of Queen v. Nash, 10 Q. B. Div. 454, and Queen v. Barnardo, [1891] 1 Q. B. 194, fully discuss the custody of illegitimate children in England.

The case of Jones v. Harmon, 27 Fla. 238, 9 South. 245, recognizes the right of the mother of an illegitimate child to transfer its custody to another, and we need not stop to cite authorities to sustain this well-established rule of law. The result is that the custody of Edward Reams by his uncle, Henry Reams, was rightful, being derived from the mother, who had the right to transfer such custody. But this legal right in the mother or her transferree is not absolute, and beyond the control of other circumstances that may surround the case. In applications for the custody of children it may be stated as a general rule sustained by the law that the court is not bound to deliver the child to the claimant, but may, where the interest of the child demands it, leave it where its welfare will be best promoted. "It is the benefit and welfare of the infant to which the attention of the court ought principally to be directed." This, it is said, is the "pole star" by which courts are guided in all such cases, whether the contention be between father and mother or be tween them and a third person or between strangers. Mercein v. People, 25 Wend. 64; State v. Smith, 6 Greenl. 462, 20 Amer. Dec. 324, and notes; Church, Hab. Corp. (2d Ed.) $446, and authorities cited in note 1.

The ties of nature and of association, the character of the applicant for the child, its age, health, and sex, the moral or immoral surroundings of its life, the benefits of education and development, and pecuniary prospects, as well as many other considerations, enter into the judicial determination. The choice of the child, where it has reached the age of intelligent discretion, also plays an important part in cases of rival claimants to the same custody. It is said in Church on Habeas Corpus, (section 447:) "Where the child has reached the age of discretion it will often be allowed to make its own choice, although the person chosen is not one whom the court would voluntarily appoint. But this is no controlling legal right

of the infant. It is not entitled to its absolute freedom from all custody, but an adult is. It is not the whim or caprice of the child which the courts respect, but its feelings, its attachments, ..s preferences, and its probable contentment; and it is a wellsettled rule of law that whether the court will regard the preference of an infant depends upon the reasonableness of his wish, and the intelligence which he manifests. 'Welfare' controls 'choice,' and the court will not permit the choice of the infant to lead it into an improper custody. The court is also bound to respect the rights of the par ent or guardian, and will not allow these rights to be overthrown by the mere wishes of a child who has not reached years of discretion, and who is too young to choose for itself, where such parent or guardian is a proper person to be intrusted with the child. The wishes, however, of children of sufficient capacity to choose for themselves should be given especial consideration when their parents have for a long time voluntarily allowed them to live in the family of another; and the court will make no coercive order in such cases, to enforce the mere legal right of the parent to their custody, against the manifest inclination and reasonable choice of the children to remain where they are." Hurd, Hab. Corp. 532, 533.

The decisions in this country do not fix any definite number of years when the age of discretion begins, but mental capacity is the test; and when the minor shows sufficient capacity mentally to exercise an intelligent choice, and no objection can be made to the person chosen, the court will ordinarily allow such choice to prevail. Church, Hab. Corp. § 443. In Re Goodenough, 19 Wis. 291, Chief Justice Dixon said that, "when the infant is above the age of fourteen years, he must, it seems, in every case, choose for himself. The court will not compel him, upon habeas corpus, to submit to parental authority." Whether or not this be the correct rule we do not say, but the mental capacity of the child, and the reasonableness of its choice, will be considered in doubtful cases in determining a proper custody.

An application of the foregoing rules to the facts of the case before us impresses us with the view that the circuit judge committed an error in awarding the custody of the person of Edward Reams to the petitioner, Henry Reams. In arriving at this conclusion it is not necessary that we determine the legal effect of the apprenticeship proceedings before the county judge as a bar to the relief asked in this suit, and we do not decide anything in reference to this phase of the case.

We will not go into a minute discussion here of all the testimony, but confine ourselves to a statement of what is the effect of it. It shows, in addition to the gift and custody of the boy, as already stated, that Henry Reams has a large family, consisting of

eight children; and has twenty-three acres of land, on which he raises truck. Henry testified that he had brought up in his own family the boy, and had clothed, fed, and educated him as one of his own children, and in this statement he is corroborated by his wife and other witnesses; but neither he nor any of his witnesses say how his children had been treated, clothed, or fed. Henry admits that he had hired out the boy to catch fish and chop wood, but says that he never gave him work too hard for him. The other testimony tends strongly to show that the boy's work was rather heavy for him. It is also made to appear, we think, that the boy was poorly clothed and shod by his uncle, and this showing is not overcome by the general statement that the boy, Edward, was treated the same as the other children of Henry. As near as we can ascertain from the testimony, Edward Reams is about 16 years old, and it is perfectly clear that he has become thoroughly alienated from his uncle and his uncle's wife. He was examined before the court, and testified that his uncle had not treated him well, and that he had been made to undertake work that he could not do, and was whipped by his uncle for failing to do it, and that he had been compelled to fish by dragging a seine in cold weather, with ragged clothes, and shoes with his feet sticking through. He stated that he had been often whipped by his uncle, and had been hit by him on the head with a hammer handle that made a scar then to be seen, and that he then had scars on his body from beatings inflicted by his uncle. Dr.

Marshall corroborates this statement as to the scars on the person, and also says that when he first saw the boy he was in rags. It is also made to appear that Henry Reams whipped the boy on his return from the house of Dr. Marshall for looking into "Aunt Linda's" basket. It seems that the boy told his uncle that Mrs. Marshall had requested that he look into the basket of "Aunt Linda” for sugar and things when she went away. The boy testifies that his uncle claimed that it was for looking into the basket that he whipped him, but the boy says the whipping was for getting a pair of shoes, and not for looking into the basket. He further testifies that he did not want to go back to his uncle, and that he would not go back, but preferred to live with Dr. Marshall. Henry Reams, although examined in rebuttal, did not deny hitting the boy on the head with the hammer handle, or that he inflicted scars on his person. He stated that he whipped the boy whenever he needed it, and that he whipped him on his return from Marshall's house for looking into "Aunt Linda's" basket, but it was with a small switch, about eight inches long. Edward Reams stated that this whipping was with a whip about three feet long. It also appears that plaintiff in error has entered into covenant before v.14so.no.3-7

the county judge to teach Edward Reams the art of cooking, and to educate him in the elements of reading, writing, and arithmetic, and to deposit in bank to his credit three dollars per month until he reaches his majority, then to be drawn out on his check, and at that time to give him a new suit of clothes, shoes, blanket, and a sum of money not less than $50. The boy consents to this arrangement, and is anxious to remain with plaintiff in error. The circumstances of this case, considering the treatment received by Edward Reams, as shown by the evidence, his age, his strong aversion to returning to his uncle, and the benefits that promise to accrue to him from his choice in remaining with Dr. Marshall, clearly overcome the mere legal right in Henry Reams, derived from the mother; and we think the court was in error in not allowing him to remain where he

was.

We do not desire to be understood as denying the right of a parent, or one standing in loco parentis, to moderately chastise for correction a child under his or her control and authority; but where a child has been committed by its parent to an uncle to raise, and the testimony, uncontradicted, shows that the uncle has inflicted immoderate and cruel punishment on the child, to such an extent as to alienate its feelings, and to cause it to desire a liberation from the uncle's control, the court should not on habeas corpus restore the child to the uncle, where it is made to appear that the child has reached the age of intelligent discretion, and has deliberately chosen to remain with a stranger, against whom no objection can be made, and who has obligated himself to provide for the child in a manner more favorable than would be its condition with the uncle.

While we think that the court erred on the showing made here in awarding the custody of Edward Reams to his uncle, it is not to be inferred from what we decide that Marshall is entitled to any coercive control over the boy by virtue of the apprenticeship proceedings before the county judge. This is a question not determined here, and we do not intimate any approval of the proceedings in the apprenticeship, or adjudicate any rights under them.

Judgment reversed for proceedings not inconsistent with this opinion.

Ex parte CAMERON. (Supreme Court of Alabama. Nov. 30, 1893.) HABEAS CORPUS ARREST AFTER DISCHARGE.

Crim. Code. § 4787, providing that, where a person has been once discharged on habeas corpus, he cannot be again imprisoned or kept in custody for the same cause, unless he is indicted therefor, etc., does not apply where the first arrest and commitment was under a warrant void upon its face, and the second arrest and commitment is under a legal warrant.

Application by James Cameron for a writ of habeas corpus. Petition denied.

Jones & Mayfield, for petitioner.

COLEMAN, J. This is an application for the writ of habeas corpus. The petition and record show that petitioner was arrested and committed to jail upon a warrant and order of commitment issued by a justice of the peace, irregular and illegal upon its face, and based upon an affidavit which charged no offense. He sued out a writ of habeas corpus before the probate judge of Tuscaloosa county, and was ordered to be discharged, for the causes which have been stated. He was immediately rearrested by the sheriff, under another warrant, issued by the same justice, legal upon its face, and issued upon a sufficient affidavit. Upon habeas corpus proceedings founded upon the second detention, the probate judge refused to discharge him; hence the application to this court. It is conceded that the petitioner committed but one offense, (if he committed any,) and that in both instances of his arrest it was for the same act. The only question presented for consideration is whether, when a person has been arrested upon a warrant, and held to commitment, which charges no criminal offense, and issued upon an affidavit which shows no violation of law, and for these causes has been discharged, upon writ of habeas corpus, he may be again arrested and detained by virtue of a legal warrant, issued upon a sufficient affidavit. There can

be but one answer to such a proposition. Section 4787 of the Criminal Code, which provides that, "when a person has once been discharged on habeas corpus, he cannot be again imprisoned, restrained, or kept in custody, for the same cause, unless he is indicted therefor, or, after a discharge for defect of proof, is again arrested on sufficient proof, and committed by legal process," has no application to the case at bar. The petitioner was never in legal custody, under the first warrant. The first affidavit and warrant and order for commitment gave no authority for his arrest and detention. The section 4787, supra, contemplates a case where the party, in the first case, was held under or by virtue of some authority which prima facie authorized his detention, and not to cases where the arrest or detention was wholly illegal. To give the section the construction contended for would enable criminals to evade the laws for holding them to await the action of the grand jury. The petition is denied.

JONES v. STATE.

(Supreme Court of Alabama. Nov. 30, 1893.) CRIMINAL LAW-PERJURY.

Where an indictment for perjury alleges in one count that, when one W. was on

trial for selling or giving spirituous liquors to defendant, defendant falsely swore that W. did not sell or give him any whisky, and that he had no understanding with W. where whisky could be found, and in another count that he falsely swore that he did not give W. any money for whisky, demurrers to the counts, on the ground that the matters alleged to have been sworn to were immaterial, are properly overruled.

Appeal from circuit court, Coosa county; N. D. Denson, Judge.

John Thomas Jones was convicted of perjury, and appeals. Affirmed.

Felix L. Smith, for appellant. Martin, Atty. Gen., for the State.

Wm. L

COLEMAN, J. The appellant was indicted, tried, and convicted of perjury. Demurrers were filed to the first and second counts of the indictment, which were overruled, and the judgment of the court, overruling the demurrers, raises the only question for consideration. The grounds of demurrer are that the matters alleged to have been falsely sworn to were immaterial. The indictment shows that one Joe Waits was on trial for the offense of selling or giving spirituous, vinous, or malt liquors to the present defendant, a minor, and the first count charges that on said trial the defendant falsely swore "that said Joe Waits did not sell or give him any whisky, and that he had no understanding whatever with said Joe Waits where whisky could be found by him," and the second count charges that he falsely swore "that he did not give Joe Waits any money for whisky." The demurrers were properly overruled. The indictment conforms to the form given in the Criminal Code for an indictment for perjury. and accords with the rule declared in section 3908, Crim. Code. The matter falsely sworn to is distinctly stated, its materiality averred, and, considered in connection with the character of the offense for which Joe Waits was on trial, the materiality of the matter is apparent. Affirmed.

BIBB v. HALL et al.

-

(Supreme Court of Alabama. May 17, 1893.) CORPORATIONS UNAUTHORIZED TRANSFER OF NOTES BY OFFICER - RATIFICATION-ACTION BY TRANSFEREES-DEFENSE BY MAKER-ILLEGALITY OF PAYEE'S INCORPORATION SUBSCRIPTION TO STOCK-FRAUD-EVIDENCE- REPEAL OF INCORPORATION LAW-EFFECT.

1. A corporation formed to build a railroad became indebted to a bank. Without express authority, the president and treasurer, its active financial agents, transferred to such bank a note received on subscription to the capital stock of the railroad company. The directors in other instances had authorized the president to use collaterals for loans, and au thorized the mortgaging of the company's lands for such purpose, and they knew of the indebtedness to the bank. Six of the nine directors, separately, signed a paper ratifying the transfer after it was made. Held, that such transfer was ratified by the corporation.

2. In an action by the transferees on such note, the maker cannot set up as a defense the illegality of the incorporation of the payee and such railroad company, in that the 20 per cent. of the capital stock of neither of them was paid in, as required by statute.

3. The conditions of the subscription were that it was payable when the road was built, and that on payment the railroad company would issue to defendant two-thirds of such amount of its capital stock, and one-third of such amount of the stock of the payee. The conditions of the note made no reference to stock of the payee, and related only to completion of the road. When he gave the note, defendant received from the payee its obligation to exchange the one-third of its stock for a like amount of stock of the railroad company, on payment. Both companies then had certificates of incorporation, but had not paid in 20 per cent. of the capital stock. Defendant was not informed that the 20 per cent. had not been paid, and he did not inquire about it, or make any investigation. Held, that defendant's subscription was not induced by fraud, and the note was not without consideration.

4. Though the general incorporation law of 1876 was expressly repealed by Code 1886, § 10, such repeal will not repeal or alter charters of corporations organized under the former statute, where the provisions of the new incorporation laws contained in such Code show that the intention of the legislature was to enact a new law, extend the provisions of the old, supply omissions, and perfect the latter, without interfering with corporations formed under it. Appeal from circuit court, Montgomery county; J. M. Chilton, Special Judge.

Action by Hall & Farley against W. C. Bibb, Jr., on a promissory note executed to the Alabama Terminal & Improvement Company, and transferred to plaintiffs. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Brickell, Semple & Gunter, for appellant. Tompkins & Troy and Roquemore & White, for appellees.

the total of my subscription to the capital stock of the Alabama Midland Railway Company. It is agreed that said amount, to wit, $500, matures, and becomes due and payable, whenever the board of directors of said company shall decide that the Alabama Midland Railway Company has been finished, to a point within a mile from the center of the city of Montgomery, from one or the other of its terminal points, and that said road is of standard gauge, laid with steel rail. Publication of said decision of said board of directors, to be made in one of the daily papers of the city of Montgomery, Alabama, shall be final and conclusive notice to me of the same. It is hereby agreed and made part of this contract that if the said Alabama Midland Railway Company should fail to complete the work, necessary to make this obligation binding, by the first day of October, 1890, then this instrument is null and void." The finding shows that "on the 7th day of May, 1887, the defendant subscribed $500 to the capital stock of the Alabama Midland Railway Company. The conditions attached to the subscription were that the amount was to be paid when the railroad 'is built, furnished, and equipped to this city, [Montgomery,] from either one or the other of its terminal points, and a line is perfected to Jacksonville and Savannah, Ga.' Upon the payment of the sum above stated, the Alabama Midland Railway Company shall issue to each subscriber % of the amount subscribed for its own capital stock, and of such amount of the capital stock of the Alabama Terminal & Improvement Company, which last company is formed to build said railroad." The finding states the fact that the board of directors of each of said corporations had decided and advertised the fact, in all respects as required by the conditions of said subscription and said note, that said railroad had been built and equipped in the manner and within the time prescribed in said subscription and note.

HARALSON, J. 1. If there is a special finding of facts in the lower court, as was the case here, at the request of one of the parties, the supreme court must, on appeal, examine and determine whether the facts are sufficient to support the judgment. Code, § 2743. It must find directly and affirmatively every issue in fact essential to the right of recovery, or judgment on it cannot be pronounced, and it cannot be aided by intendment or by reference to extrinsic facts. Betancourt v. Eberlein, 71 Ala. 461; Quill-corporation under the laws of Alabama; man v. Gurley, 85 Ala. 594, 5 South. 345.

2. Then, what are the issues of fact in this case essential to recovery? The note sued on was dated July 21, 1887, and reads: "I promise to pay to the Alabama Midland Railway Company, as now chartered under the general railroad laws of the state of Alabama, or any amendment that may hereafter be made, either by general law or by act of the legislature, its order or assigns, five hundred dollars, at the banking house of the First National Bank of Montgomery, Alabama, to be paid in cash, on demand, at the maturity of the note; this amount being

3. The defendant's pleas were, in substance, that the plaintiffs are not the parties interested in the instrument sued on; that the note is not the property of the plaintiffs, and that it is the property of the Alabama Terminal & Improvement Company, a

want and failure of consideration of the instrument sued on; that both companies were fraudulently organized, by means of false certificates of organization; and that this was concealed from defendant, and he was deceived, and intentionally defrauded into making the contract to subscribe for the stock. The errors assigned are that the facts found by the special judge sustain these pleas, and do not sustain the judgment rendered. We have referred above to the finding of the special judge as to the compliance by the corporations with the conditions of the subscription and note touching the man

« PreviousContinue »