Sanderson, Inter-State Business

Men's

State, Brown v. (Tex. Cr. App.).

252

240

746

386

583

261

State, Schellenger v. (Tex. Cr. App.).

State, Charles v. (Tex. Cr. App.)..
State, Clements v. (Tex. Cr. App.).
State, Cole v. (Ark.)..
State v. Costello (Mo.).
State v. Covington (Tenn.).
State, Crofton v. (Ark.).
State v. Dale (Mo.).

State, Davis v. (Tex. Cr. App.).
State, Dawes v. (Tex. Cr. App.)..
State, Dawson v. (Tex. Cr. App.).
State v. Ebbeller (Mo.).
State, Ellis v. (Ark.).
State v. Gallagher (Mo.)

State, Garza v. (Tex. Cr. App.).
State, Greer v. (Tex. Cr. App.).
State, Grissom v. (Tex. Cr. App.).
State v. Hardin (Mo.)
State v. Harris (Mo.).
State v. Hartman (Mo.).
State, Hasley v. (Tex. Cr. App.).
State, Hellman v. (Tex. Cr. App.).
State, Hendrix v. (Tex. Cr. App.).
State, Herberg v. (Tex. Cr. App.).
State, Hettle v. (Ark.).

State, Higgins v. (Tex. Cr. App.).
State, Hilliard v. (Tex. Cr. App.).
State, Hoover v. (Tex. Cr. App.).
State v. Hostetter (Mo.)..

State, Houser v. (Tex. Cr. App.).
State v. Jackson (Mo.).
State v. Jarvis (Mo.).
State v. Kramer (Mo.).

State, Lankford v. (Tex. Cr. App.)
State v. Lippman (Mo.)
State v. Linton (Mo.).

State, Mayes v. (Tex. Cr. App.)..
State, Messimer v. (Tex. Cr. App.).
State v. Meyer (Mo.).

State, Mitchell v. (Tex. Cr. App.).
State v. Morgan (Mo.).

State, Narango v. (Tex. Cr. App.).
State v. Nash (Mo.).
State v. Nave (Mo.).

State, Ott v. (Tex. Cr. App.)..

State, Parham v. (Tex. Cr. App.).
State v. Patterson (Mo. App.)..
State, Pierce v. (Tex. Cr. App.).

State v. Plotner (Mo.).....

State, Rabe v. (Tex. Cr. App.)..

State, Ramirez v. (Tex. Cr. App.).

State v. Seay (Mo.)..

State, Shrum v. (Tex. Cr. App.).

Terry v. Adams-Hicks Zinc & Lead Corpo-
ration (Mo. App.).

488

541

(Tex.

644

571 Texas Employers' Ins. Ass'n v. Roach
(Tex. Com. App.)

159

765 Texas Iron Ass'n, Signor Tie Co. v. (Tex.
983 Civ. App.)..

644

App.)

425 Texas & N. O. R. Co. v. Weems (Tex. Com.
564

972

App.)
Theuber v. Marek (Tex. Civ. App.).

396 Texas & P. R. Co. v. McDowell (Tex. Civ.
744

.1109

293

561 Third Nat. Bank, John O'Brien Boiler
Works Co. v. (Mo.)....

788

951

69

.1106 Thompkins v. State (Tex. Cr. App.).
246 Thompson, Ft. Worth & D. C. R. Co. v.
427 (Tex. Civ. App.)..

.1103

289

State, Smiley v. (Tex. Cr. App.).
State v. Smith (Mo.)...

575 Thompson, Scott v. (Mo.). .1108 Thompson, State v. (Mo.). 455 Thornton, Satterly v. (Ky.).

115

789

..1088

State v. Stetson (Mo.).

425

State, Thompkins v. (Tex. Cr. App.).....1103
State v. Thompson (Mo.)..

789

Timpson & H. R. Co. v. State (Tex. Civ.
App.)
Todd v. Fitzpatrick (Mo. App.).

322

888

227 ..1104 Tudor, Lancaster .v. (Tex. Civ. App.).... 990 558 Twyman v. Clark (Tex. Civ. App.). 299

Toplitz, Goodman v. (Tex. Civ. App.) ..1119 Tri-State Tel. Co., Kinney v. (Tex. Com. 569 App.)

State v. Wicker (Mo.).

.1014

441 .1103 484

State v. Wolfe (Mo.).

State, Young v. (Tex. Cr. App.).
State Bank v. Elgin (Mo. App.).
State ex rel. Chorn v. Hudson (Mo. App.)1049
State ex rel. Crow v. Carothers (Mo. App.)1043
State ex rel. Meyer Bros. Drug Co. v.
Koeln (Mo.)

389

State ex rel. Moberly Special Road Dist. of
Randolph County v. Burton (Mo.)...... 844
State ex rel. North Kansas City Develop-
ment Co. v. Ellison (Mo.)..
783
State Line Oil & Gas Co., Good v. (Ark.) 354
Steddum, Anderson v. (Tex. Com. App.)..1090
Stephens v. Curtner (Mo. App.).
Sternenberg & Co., Houston Oil Co. of
Texas v (Tex. Com. App.)...

497

United Rys. Co. of St. Louis, Yates v.
(Mo. App.)..
.1034
Uvalde Nat. Bank, Holmes v. (Tex. Civ.
App.)

640

534

Stetson, State v. (Mo.).

425

Stewart v. Chicago, B. & Q. R. Co. (Mo.
App.)

.1029

Stewart v. Chittick (Mo. App.).

863

Stewart v. Omaha Loan & Trust Co. (Mo.) 808

Vernon v. American Ry. Exp. Co. (Mo.
App.)

913

Underwood v. Hines (Mo. App.)... .1037
Union Cotton Co. v. Bondurant (Ky.)..... 66
Union Station Bank, Bank of Slater v.
(Mo.)
993
United Irr. Co., Kohler v. (Tex. Civ. App.) 337
United Mine Workers of America, Dia-

See End of Index for Tables of Southwestern Cases in State Reports

THE

SOUTHWESTERN REPORTER

VOLUME 222

STATE v. COVINGTON.

(Supreme Court of Tennessee. May 31, 1920.) Criminal law 200 (4)—Acquittal bar to prosecution for offense arising out of same transaction.

Defendant having been acquitted on a charge of violating the Act of 1917, c. 12, which in sections 1, 2, and 3 denounces the offenses of receiving, possessing, and transporting liquors, cannot, though only one of the three separate offenses was charged, be prosecuted for others denounced arising out of the same transaction, for section 6 limits the fine in such cases to $500 and imprisonment to six months, and to allow the state to split the same transaction into three indictments might result in the imposition of triple penalty.

After setting out said former indictment
and trial, and the result thereof, and averring
that the judgment rendered on said verdict

of not guilty was final, the plea concluded
with the following averments:

"The defendant says that the offense for
which he was acquitted and upon which said
judgment of not guilty was pronounced is the
identical offense as the one charged the de-
fendant in this case, and that the court had
jurisdiction to hear and determine said case
and to pronounce said judgment.

"The defendant further says that the facts upon which the presentment above set out was predicated and based are the identical facts upon which the presentment is predicated and based in the present case."

The Attorney General moved the court to strike out said plea of a former acquittal beError to Circuit Court, Haywood County; cause it did not charge the same offense. The Thos. E. Harwood, Judge.

Shane, alias Shang, Covington, was indicted for violating the liquor laws, and, plea of former acquittal having been sustained, the State brings error. Affirmed.

court overruled said motion, and, the state
having declined to take issue, the court there-
upon dismissed the case. From this action of
the court the state prayed and was granted

an appeal to this court.

The first three sections of chapter 12 of the

W. H. Swiggart, Jr., Asst. Atty. Gen., for Acts of 1917 are as follows: the State.

"Section 1. Be it enacted by the General, Bond & Bond, of Nashville, for defendant Assembly of the state of Tennessee, that it

in error.

MCKINNEY, J. The defendant in error was indicted at the January term, 1919, of the circuit court of Haywood county for violating the liquor laws. The indictment contained two counts, the first charging the defendant in error with unlawfully receiving intoxicating liquors, and the second with unlawfully being in the possession of intoxicating liquors.

shall be unlawful for any person, firm or cor-
poration to receive, directly or indirectly, in-
toxicating liquors including wine, ale and beer,
from a common, or other carrier, in this state,
whether intended for personal use, or other-

wise, and whether interstate or intrastate
shipments or transportation.

"Sec. 2. Be it further enacted, that it shall
be unlawful for any person, firm or corporation
to possess intoxicating liquors, including wine,
ale and beer, hereafter received, directly or
indirectly, from a common or other carrier

or otherwise, and whether interstate or intra-
state shipments or transportation.

At the next term of the court the defend-in this state, whether intended for personal use ant in error interposed a plea of former acquittal, which was sustained by the court, and the defendant in error was discharged.

In said plea of former acquittal the defendant in error set out that he had been tried and had been given a verdict of not guilty upon an indictment returned at the May term, 1918, charging that in April, 1918, he "did transport into this state and from one place to another in this state and within the county aforesaid, intoxicating liquors, including wine, ale and beer, for another person, firm and corporation."

"Sec. 3. Be it further enacted, that it shall be unlawful for any express company, railroad company, or any common carrier or person to ship or transport into this state or from one place to another within this state, intoxicating liquors including wine, ale and beer, for any person, firm or corporation, whether in original packages or otherwise and whether intended for personal use or otherwise."

The punishment prescribed for violating
the provisions of said act is contained in sec-
tion 6 thereof, which is as follows:

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
222 S.W.-1

"Sec. 6. Be it further enacted, that any per- in force and use in this state against unlawful son, firm or corporation violating any of the gaming." provisions of this act, shall, upon conviction, be fined not less than fifty dollars nor more than five hundred dollars, and in the discretion of the court may be imprisoned in the county jail or workhouse for a period of time not exceeding six months."

Had the original indictment contained three counts charging, respectively, (a) receiving, (b) possessing, and (c) transporting liquors, and had the jury found the defendant guilty on all three counts, under the provisions of the act, the maximum punishment which could have been imposed would have been a fine of $500 and an imprisonment of six

months.

The plea, which must be taken as true, says that this was one transaction, so that if the state were permitted to split this one transaction into three parts and charge the defendant with receiving in one indictmentpossessing in the second, and transporting in

the third-and the defendant should be found guilty in each case, then the court could impose a fine of $500, and an imprisonment of six months in each case. While the statute only contemplated a maximum fine of $500, and an imprisonment of six months for the entire transaction.

The principle involved is thus stated in 16 Corpus Juris, 272, to wit:

It will be noticed that this act prohibits (a) betting on a horse race, and (b) running a horse race.

This court reversed the trial court, holding the plea of former conviction to be good. The court held that there was but one transaction, and hence the matter of gaming, by betting on a horse race, was a proper subject of investigation under the first indictment. In the first indictment the state could have included a count for betting, but the state has no right to split up one transaction of this nature into parts, and find an indictment on each part.

In Hite v. State, 9 Yerg. 379, an entirely different principle was considered, and the question there involved has no bearing upon the present case.

We are of the opinion that the trial judge was correct in dismissing the case, and his judgment is affirmed.

LANSDEN v. CITY OF JACKSON.

Опе

(Supreme Court of Tennessee. May 31, 1920.)
1. Municipal corporations 812(5)
city commissioner cannot waive requirement
of notice of injury.

Even if the statutory requirement of notice to a city of claim for personal injuries can be waived by the governing body of the

"There is also another rule which declares that, if the prosecution under the second indictment involves the same transaction which was referred to in the former indictment, and it was or properly might have been, the sub-city, one of the city commissioners has no auject of investigation under that indictment, an acquittal or a conviction under the former indictment would be a bar to a prosecution under the last indictment. This rule is sometimes called the 'same transaction test.'"

This text is supported by a great many authorities.

thority to waive such requirement.

2. Municipal corporations 812(5)-Ratification of commissioner's promise to pay hospital expenses does not waive notice of injury.

injuries is not a waiver of the requirement that notice of claim for injuries be given the city.

3. Municipal corporations 812(5)-Officer's waiver of right to notice can be ratified only by formal action.

Ratification by the governing body of the city of the promise of one of the commissionIt is well illustrated in our case of Fiddler ers that the city would pay the hospital exv. State, 7 Humph. 508, in which the defend-penses of plaintiff for an examination of her ant was presented for betting on a horse race. To this indictment the defendant pleaded that he had been indicted for running a horse race along a public road, and had been convicted thereof on his own confession, and punished therefor; and that said horse race for running which he had been so convicted and punished, and the horse race for betting on which he is presented, is one and the same horse race. To this plea the Attorney General demurred. The court sustained the demur

rer, and fined the defendant. The statute in

volved was section 2 of chapter 10 of the Acts of 1833, which provides that

"Be it enacted, that all and every person betting or running, aiding and abetting in running any horse race in or along any public road in this state, shall be liable to be indicted under the same rules and provisions as are now

A municipality can, in the absence of fraud or imposition, ratify an act of its officer in of claim for injuries only by formal action takwaiving the statutory requirement of notice en by the proper officials.

Appeal from Circuit Court, Madison County; R. B. Baptist, Judge.

Action by Mrs. Maggie Lansden against the City of Jackson. Judgment dismissing the suit and sustaining demurrer to the declaration was reversed by the Court of Civil Appeals and the case remanded for hearing, and defendant appeals. Case dismissed.