Southern Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed. This was an action brought by the appellee, Robert Crocker, a minor, by his next friend, against the Alabama Great Southern Railroad Company, to recover damages for personal injuries. The complaint, as amended, contained three counts. In the first count the plaintiff sued for $2,000 as damages for that on February 6, 1898, the said Robert Crocker, being then "six years of age, went upon the turntable kept by the defendant at its depot and yards in the city of Tuscaloosa, Alabama, and, while playing upon it with companions who were of like tender years, had his hip and back caught in or under the same, and badly mashed, lacerated, and bruised, to his damage as aforesaid; and plaintiff avers that the said turntable was attractive to children of tender years, who did not know its dangerous character, but that the same was dangerous for children to play upon, because it was easily turned, and, on account of its construction and great weight, a person being upon it while it was turning was liable to be caught under the framework thereof, and crushed or otherwise injured; and plaintiff' avers that said turntable was kept in a public, open place, where many people were constantly passing and repassing, and many children resorted to play, and the defendant, well knowing these facts, carelessly and negligently left said turntable unlocked, uninclosed, or otherwise guarded, wherefore plaintiff sues." The second count of the complaint was as follows: "The plaintiff claims of the defendant the further sum of two thousand dollars as damages, for that heretofore, on, to wit, the 6th day of February, 1898, the defendant owned and kept a turntable at or near its depot in the city of Tuscaloosa, in an open and accessible place, where many children resorted to play, and the defendant, knowing or having reason to believe that children resorted to, or would resort to, its said turntable to play, and that it was a machine or structure dangerous for children to play on, negligently allowed or suffered the said turntable to remain unattended, uninclosed, and unguarded, so that children could easily gain access to and move or turn the same, and on said day the plaintiff, being a child of tender years, of the age of, to wit, 6 years, while playing on said turntable," received the injuries complained of. The third count of the complaint alleged that the defendant, at the time of the accident complained of, owned and kept a turntable near its depot in Tuscaloosa, in an open and accessible place, where children resorted to play, and "the defendant, well knowing that many children resorted there to play on its turntable, that said turntable was a dangerous structure or machine for children, and that several children had been in recent times past dangerously crushed, lacerated, and bruised by playing thereon, nevertheless negligently allowed said turntable to be and remain unfastened, uninclosed, and unguarded, so that children could easily gain access to and play upon and turn the same." This count of the complaint then averred that the plaintiff, being a child of tender years, was injured while playing on said turntable in the manner averred in the other counts of the complaint, and then averred as follows: "That said injury was caused by the negligence of the defendant in leaving said turntable unfastened and unguarded, although it knew that many children resorted there to play upon the same, that it was a dangerous structure or machine for children to play on, and that several children, by reason of playing thereon, had been severely injured and hurt." To each of these counts of the complaint the defendant demurred upon the following grounds: (1) They show that the plaintiff was a trespasser upon the property of the defendant, and failed to allege that the defendant was guilty of any wanton negligence or willful injury to the plaintiff; (2) the counts fail to state any cause of action against the defendant. These demurrers were overruled. Thereupon the defendant pleaded three pleas: First, the general issue. In the second plea the defendant set up that the turntable on which the plaintiff was injured was constructed on the land of the defendant, and was used by the defendant as a necessary adjunct to the business carried on as a common carrier; that it did not invite the plaintiff to go upon the turntable, and in fact at the time of the accident did not know that the plaintiff had gone upon it, and that said turntable was properly constructed. The third plea set up substantially the same facts, and then alleged that the plaintiff as the time of receiving the injury was a trespasser, and that said injuries to the plaintiff were not caused by any wanton negligence or willful act on the part of the defendant. To each of the special pleas the plaintiff demurred, setting up in various ways that they did not constitute a defense to the action, and were no answer to the complaint. These demurrers were sustained. The cause was tried upon an agreed state of facts, from which it appeared that plaintiff was six years of age at the time of the injury complained of; that, with a companion or companions, plaintiff had gone upon defendant's land, and was playing with the turntable of the defendant, when the same was moved by a boy with whom plaintiff was playing, and plaintiff was injured thereby to the extent of $250; that previous to this time two other children had been injured on the same turntable, and this was known to the defendant; that the turntable was not inclosed by a fence, nor was it locked or guarded when plaintiff went thereon; that after the injury to the other children, and prior to plaintiff's injury, the turntable had been locked by the defendant, and several locks had been brok- sion in Stout's Case. Some courts have re en off and stolen, but on the day plaintiff was injured the turntable had been unlocked and used by the defendant, and had not been locked, up to the time of the injury, and was left unguarded. It further appeared that the turntable was used by the defendant as a necessary adjunct to its business as a common carrier; that it was upon its lands, and used by it exclusively in such business; that there were no defects in its construction or maintenance, and the same had been maintained for many years; that it was necessary to use the same constantly during the day, and frequently at night; and that defendant did not invite plaintiff to go upon the land or turntable, and did not, in fact, know at the time that plaintiff was there. It was further shown that the turntable was situated in the midst of tracks within the yard limits of defendant, and that the nearest street or road,, and the one upon which plaintiff lived, was 600 feet distant, and that it was necessary, in going from plaintiff's house to the turntable, to cross several tracks, and go into the yards of the defendant. This being substantially all the evidence, the court gave the affirmative charge requested by the plaintiff, and denied a similar charge in favor of the defendant. To each of these rulings the defendant separately excepted. From the judgment in favor of plaintiff, defendant appeals, and assigns for error the several rulings of the court above mentioned. Smith & Weatherly, for appellant. Foster & Oliver, for appellee. SHARPE, J. Ownership of property may carry with it the right of the owner to use, and to exclude others from the use of, the property; but, however exclusive may be the owner's rights, he is subject always to the maxim, "Sic utere tuo ut alienum non kedas." Common prudence forbids that one may arrange, even on his own premises, that which he knows, or, in the exercise of common judgment and prudence, ought to know, will naturally attract others into unsuspected danger of great bodily harm. It is the apparent probability of danger, rather than rights of property, that determines the duty and measure of care required of the author of such a contrivance; for ordinarily the duty of avoiding known danger to others may, under some circumstances, operate to require care for persons who may be at the place of danger without right. The averments of this complaint bring the case within the influence of Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745, which is a leading authority in affirmation of the possible liability of railroad companies for negligence in cases of injury to infants trespassing on turntables. As appears from cases cited in briefs of counsel, there has been a parting of the ways of judicial opinion concerning the soundness of the deci pudiated, though numerous others have followed, it. We adopt as sound the doctrine there announced concerning both the duty of railroad companies towards infants, and the mode in which the question of negligence should be tried. On the latter point the court applied in that case the general rule which requires that, though the facts bearing on an issue be undisputed, if different ordinarily constituted minds may reasonably and honestly draw different conclusions from those facts, the question is properly for the jury, and not for the court, to determine. In this case the trial court ruled properly on the several demurrers to pleadings, and in refusing the charge asked by defendant; but, in giving the charge requested by plaintiff, there was error, for which the judgment must be reversed. The evidence did not establish, as a legal conclusion, that the turntable, having regard to its structure and situation, was of a kind which, if left unfastened or unguarded, was likely to attract the interference of children, or that the danger was so apparent that the defendant ought, in the exercise of ordinary prudence, to have anticipated that children would resort to the machine and be injured by it if so left. These conclusions were necessary to fix on defendant the charge of negligence made by the complaint. It may be that the jury would have supplied them from the facts proven, but to do so was beyond the court's province. Reversed and remanded. HINTON v. STATE. (Supreme Court of Alabama. Feb. 13. 1902.) 1. On the trial of defendant for selling liquors without a license, two witnesses testified that they bought blackberry wine of him by the glass; and one, that it made him drunk; and the other, that he felt it "right smartly.' Witnesses for defendant testified that the wine was not an intoxicant. Defendant also introduced evidence that the state's witnesses during the day they bought the wine had some whisky and gin, which they also drank. Held that, though the evidence would have justified a verdict of guilty, a general charge against the defendant was not proper. 2. Where defendant was indicted for selling spirituous or vinous liquor, evidence that a judge and United States commissioner had advised him before he sold the beverage that it was not a violation of the law to do so was properly rejected. Appeal from criminal court, Pike county; T. L. Borom, Judge. D. F. Hinton was convicted of selling spirituous or vinous liquors without a license, and appeals. Reversed. E. R. Brannen, for appellant. Chas. G. Brown, Atty. Gen., for the State. HARALSON, J. The defendant was indicted for selling spirituous, vinous or malt liquors without a license. Several persons examined as witnesses by the state testified, that the defendant, within 12 months before the finding of the indictment, sold to them at his store in Pike county, blackberry wine by the glass. One of the witnesses testified, it made him drunk, and another, that he felt it "right smartly," and, each, deposed, that he drank no other intoxicating liquor. The defendant introduced witnesses whose testimony tended to show, that the wine sold was not an intoxicant. The defendant testified, that he made said wine, by taking blackberries and crushing them, putting them in water and allowing them to stand about two days, and afterwards he strained the juice out and sweetened it with sugar, adding nothing else. He also introduced evidence tending to show, that the state's witnesses, during the day they bought the wine from him and drank it, had some whisky and gin which they also drank. Worcester defines wine, (1) as, "The fermented juice of the grape; a spirituous liquid resulting from the fermentation of grapejuice;" and, (2) "The fermented juice of certain fruits resembling in many respects the wine obtained from grapes, but distinguished therefrom, by naming the source whence it is derived; as, ginger wine, gooseberry wine, currant wine," etc. We discover no reason for holding that the term "vinous liquors," does not include the fermented juice of blackberries as well as that of grapes. The intention of the legislature, we take it, in its system for raising revenue for the state, and in its regulation of the sale and disposition of intoxicating liquors, was not to include the one and exclude the other, especially if that made from the juice of blackberries and other berries became wine or spirituous liquor after fermentation with sugar, producing intoxication when taken as a beverage. Black, Intox. Liq. § 5. The wine of the grape or berries, before fermentation, cannot be said to be wine; but with sugar added, and after fermentation and the addition thereto by chemical process of an additional ingredient of alcohol, the product may be fairly said to be vinous liquor. The evidence shows that sugar was added to the berry juice, and the liquid thereafter was placed in a keg or barrel, but how long the juice thus sweetened had been allowed to stand before it was sold is not shown, nor was it shown that fermentation had taken place; but the evidence tends to show that fermentation had taken place, and the liquid had become vinous. Moreover, even if the juice was yet fresh, and had not become a vinous liquor, or, even, if it had so become, it was open to the jury, under the evidence, to infer, that spirituous liquor had been added, since two witnesses deposed to its intoxicating effect on them. Tinker v. State, 90 Ala. 647, 8 South. 855. If the drink called blackberry wine sold by defendant was a vinous liquor, or, if a beverage to which spirituous liquor had been added, the defendant was guilty of a violation of the statute; but under the evidence, these questions should have been submitted, under proper instructions, to the determination of the jury, and the general charge, as given against defendant, was not proper. The offer by defendant to prove that a judge and a United States commissioner had advised him, before he made the sales of the beverage, that it was not a violation of law to do so was not competent evidence, and was properly rejected. Reversed and remanded. SANDERS v. STATE. - Dec. 19, 1901.) (Supreme Court of Alabama. 1. Where the defendant, charged with murder, was served by the sheriff with a perfect list of jurors, showing on its face that it was such a list, such service, if not a technical compliance with Code, § 5273, requiring a service of a copy of the venire for the trial, was so far a compliance that defendant could take nothing by the technical error, under Code, § 4333, providing that a judgment of convietion must not be reversed because of error in the record when the court is satisfied that no injury resulted therefrom to the defendant. 2. Where two jurors, immediately after be ing impaneled and sworn to try defendant for murder, conversed with bystanders, aud no ruling of the court was invoked or had in respect thereto, and, after the case was submitted, jurors were permitted to leave the jury room, in charge of an officer, to answer calls of nature, exceptions reserved to such action of the jurors present no question for review on appeal, as only rulings of the trial court can be reviewed. 3. A motion for a new trial in a criminal case being addressed to the sound discretion of the trial judge, his denial of a new trial, sought on the ground of jurors conversing with bystanders immediately after impaneling, and leaving the jury room after final submission of the cause, will not be reviewed on appeal. 4. Where on a trial for murder a witness for the state had testified that there was a quarrel the day before the homicide between the deceased, who was road overseer, and defendant, who was working on the road, and on cross-examination the witness said that deceased swore at defendant, and told him, if he was not going to work, to put down his tools and go home, it was not error to permit the witness, on redirect examination, to answer the question, "What was defendant doing when deceased cursed him and told him to go to work?" 5. Where, on a trial for murder, it was shown that deceased, who was road overseer, and defendant, who was working on the road, had a quarrel in the forenoon, and that defendant was then unarmed, it was proper for the state to show that both defendant and his brothers had pistols when they returned to work in the afternoon. 6. Where defendant, charged with murder, fled the country immediately after the homicide, evidence that three weeks thereafter a mob was formed, and an attempt made to lynch his brother, who was indicted with defendant, was not competent, as going to show that the flight was not due to conscious guilt. 7. Where defendant and his brother were jointly indicted for murder, the fact that the brother was tried first, convicted, and the verdict finding him guilty was written on the indictment, did not avoid the legal necessity of the paper being with the jury when they retired to make up the verdict on the trial of defendant. Appeal from circuit court, Perry county; John Moore, Judge. Luke Sanders was convicted of murder, and appeals. Affirmed. B. M. Allen, for appellant. Brown, Atty. Gen., for the State. Chas. G. It MCCLELLAN, C. J. It has quite recently been determined that an order that the sheriff "serve the defendant with a copy of a list of the names of the persons constituting the jurors" for the trial of a capital case is sufficient, under section 5273 of the Code, which requires the service of a copy of the venire for such trial. Ford v. State (Ala.) 30 South. 27. This ruling necessarily involves the further proposition that a compliance with such order-the service of a list of such jurors--is, in legal substance and effect, sufficient under that section, though the paper served may not be a full copy of the venire,-by which is meant the writ issued by the clerk to the sheriff for the summoning of the special jurors, and the service upon the defendant of a copy thereof, containing also the names of the regular jurors for the week of the trial,-in that the list so served is not in the form of a mandate, and is not signed by the clerk. That is the case at bar. A perfect list of the jurors for his trial was served on the defendant. showed on its face that it was such list; it was served, as shown by the return of the sheriff, upon the defendant as such list; and there is no pretense that the defendant was in the least degree misled or prejudiced by the fact that the paper served was not, in strictness, "a copy of the venire." The whole purpose of the statutory provision is that the defendant shall have seasonable notice of the names of the persons from whom the jury for his trial is to be selected. When this sole end of the law has been attained by placing before the defendant the names of such persons, and acquainting him with the fact that the list presents the names of such persons, it is not conceivable that he could be injured by the absence of technical authentication of the list; but, to the contrary, it is clear that he has not been prejudiced thereby. So that, if it were conceded that the statute was not literally complied with in this case, the deviation from its terms worked no injury to the defendant; and if technical error was committed by the court, in forcing him to trial upon the service made, he can take nothing by it, the doc trine of error without injury having been extended by statute to criminal cases. Code, § 4333. No ruling of the court was invoked or had in respect of the action of two of the jurors in conversing with bystanders immediately after the jury was impaneled and sworn, except, perhaps, on the motion for a new trial. The exception, reserved was to this action of said jurors, and not to any decision of the court in reference to it. It is only rulings of the trial court that can be reserved for review in this court. Motions for new trials in criminal cases are addressed to the sound discretion of the trial judge, and his rulings upon them are not revisable by this court. Hence, if it be supposed that the matter last above referred to was presented on the motion for a new trial, and ruled upon in the denial of that motion, the appellant can take nothing here on account of such ruling. So, too, as to the separation of the jury after the case had been finally submitted to them; three of them leaving the others in a jury room, and going off, in charge of a bailiff, to attend a call of nature. This matter was fully presented on the motion for a new trial, and not otherwise; and we cannot review the court's action upon it. We deem it not out of place to remark, however, that, on the facts shown in respect of both these alleged separations of the jury, the court was entirely justified in its action in relation thereto. Butler v. State, 72 Ala. 179; Nabors v. State, 120 Ala. 323, 25 South. 529. The state having proved by the witness Curtis Lockett that the defendant and Mullins, the deceased, had a quarrel the day before the homicide, the defense, on crossexamination of this witness, drew from him the following testimony in relation to that quarrel or difficulty: "I heard very little of the difficulty between Mullins and Luke [the defendant] the day before. I heard Mullins [who was road overseer, defendant working under him] curse the defendant, and say to the defendant: 'God damn your soul! I want you to stop your foolishness and go to work; and, if you ain't going to work, put down your tools and go home.'" On redirect or rebuttal examination of the witness, the state was allowed, against defendant's objection, to ask this question: "What was Luke doing when Mullins cursed him and told him to go to work?" To which the witness replied: "He was raking dirt." The state then asked, "Was he raking dirt, or was he standing up?" This question was allowed against defendant's objection, and the witness answered, "Luke was standing up, raking dirt." If there was error in the allowance of these questions by the state, it involved no injury to the defendant, since the answers to them were favorable to him; going, as they did, to show that the defendant was working at the time Mullins was cursing him for not working, and, of conse quence, that Mullins' abuse of him was gratuitous and without palliation. But no error was committed by the court in this connection. If the questions objected to called for particulars of a previous difficulty, they were yet proper, because they related to the same particulars as to which the defense had on cross-examination had the witness to testify. Upon the same principle, as also upon the further proposition that, when one party draws out a part of a conversation, the other party is entitled to prove the whole of it, the state was properly allowed to show by this witness the reply made by the defendant to the remark addressed to him by Mullins, viz.: "I ain't going home. I am going to work." Under all the circumstances of this case, it was palpably competent for the state to prove that after this quarrel the defendant left the place where the quarrel occurred, presumably going home to dinner, and that on his return in the afternoon he had a pistol; the evidence tending to show that he did not have the weapon before or at the time of the quarrel, such testimony having a legitimate tendency to show preparation for the homicide of the next day, and premeditation in respect of it. So the court did not err in permitting the state to ask this and other witnesses whether the defendant had a pistol on his return to the work in the afternoon of the day of the quarrel. And it was competent for the state to prove that defendant's brother, John Sanders, who was present during the quarrel between Mullins and Luke, and who was engaged in the difficulty the following day in which Mullins was killed, had a pistol when he returned to the work in the afternoon of the first day. This also went to show community of design on the part of the brothers, and joint preparation and premeditation. The witness Charley McLaughlin having, on cross-examination by the state, testified that the defendant, on the occasion of the quarrel between him and Mullins the day before the homicide, said that "he would die and go to hell before he would take any more of Mullins' foolishness," the state, against defendant's objection, was allowed to ask him this question, "Didn't John Green [Sanders] say at the same time the same thing?" Witness replied, "He did not." The state then asked this question: "Did you not testify before C. C. Johnston, acting as coroner in this case?" And to this the witness answered, "I did not so testify before said C. C. Johnston, coroner." It is clear that the defendant was not prejudiced by this evidence. The effort of the state was to prove that defendant's brother, John Green, also used the threatening language which the witness had deposed to defendant's having used. The witness swore to the contrary, and, when he was asked whether he had not testified differently on another occasion, he swore that he had not. All that he said in this connection was favorable to the defendant, and the court committed no error of which he can complain by allowing the testimony to go to the jury. In the brief of appellant's counsel this witness is confused with the witness Charlie Sanders, and the further mistake is made of ascribing to Sanders the statement that he did so testify before the coroner. Charlie Sanders did not refer to this matter at all in his testimony; and Charley McLaughlin, the only witness who spoke of it, swore, as we have seen, that he did not testify before Johnston, the coroner, that John Green said he would die and go to hell before he would take any more of Mullins' foolishness. The defendant fled the country immediately after the homicide. It was sought to be proved in his behalf, as tending to show that his flight was not due to consciousness of guilt, that three weeks later a mob was formed and an attempt was made by it to lynch John Green Sanders, jointly indicted with him, and two other men charged with aiding defendant to escape, all of whom were then confined in the county jail. The court properly excluded this evidence. not conceivable that the formation and actions of this mob three weeks after defendant's flight could have been the cause of that flight, or that evidence in that regard could have legitimately tended to show that defendant's flight was not due to consciousness of guilt. It is It was necessary that the indictment should be taken by the jury on their retirement to consider of their verdict. The fact that John Green Sanders was also charged in the same indictment jointly with this defendant, and that the verdict of the jury which tried him severally the week before, finding him guilty of murder in the first degree, was written on the indictment, neither emasculated the indictment as to Luke Sanders, this defendant, nor avoided the legal necessity for the paper being with the jury in his case when they retired to make up their verdict. The rulings of the court on requests for instructions are not discussed in the brief for appellant. We will therefore content ourselves with saying here that they have been duly considered, and found to be free from error. The judgment of the circuit court must be affirmed. The day for the execution of the sentence of death imposed upon the defendant in the court below having passed. it will be here ordered and adjudged that said sentence be executed on Friday, the 7th day of February, 1902. |
