1. Courts take judicial notice of a joint resolution of the general assembly as a public legislative act.

2. Act Cong. June 3, 1856, granting lands to Alabama in aid of certain railroads, and providing that the lands granted by it should be exclusively applied in the construction of the road for which they were granted, and that if any of the roads were not completed within a stated time the lands granted for them should revert to the United States, vests the title of such lands in the state of Alabama from the date of said act, in trust for the railroads for whose construction they were granted, without power to dispose of them in aid of any other railroad.

3. Under Act Cong. June 3, 1856, granting to Alabama lands in aid of certain railroads, three different companies each became entitled to the same tract of land by reason of its being within the limits of the grant of each. Held, that the grant was of equal undivided shares for the benefit of each railroad, regardless of the priority of location or construction of any of them.

4. Where, by reason of overlapping grants to other companies, a railroad company is entitled to only a moiety of a tract of land granted by the United States in aid of its construction, the forfeiture by the other companies of their shares of the tract does not entitle the company which earned its grant to the entire interest; and Acts 1882-83, pp. 62-66, vesting persons therein named with the title to a tract of land within the limits of the land grants of each of three railroad companies, two of which forfeited their grants, passes the title to the share of the company which earned its tract only, and is a nullity as to the rest.

5. On an issue whether a railroad land grant had been canceled as to certain lands, a notice by the United States land commissioner to the register and receiver of a local United States land office of the cancellation of a list of lands selected by the railroad company under the grant is inadmissible, if unaccompanied by evidence showing the lands in controversy to be affected by the cancellation.

6. An acknowledgment before a judge of probate, the venue of which only gives the name of the state, is valid, because prima facie it was executed within the state, and it is presumed that the judge of probate, of whom, and of whose term of office, the court takes judicial notice, took it within the limits of his county.

Appeal from city court of Gadsden; John H. Disque, Judge.

Ejectment by H. Herzberg against W. W. McCarver. The cause was tried by the court without the intervention of a jury, and upon the hearing of all the evidence the court rendered judgment for the plaintiff for the entire title in and to all the lands sued for. To the rendition of this judgment the defendant duly excepted. The defendant appeals, and assigns as error the rulings of the court upon the evi

dence to which exceptions were reserved, and the rendition of judgment in favor of the plaintiff. Reversed.

James Aiken, for appellant. Denson, Burnett & Culli, for appellee.

PER CURIAM. The lands in controversy are a part of the lands granted to the state of Alabama by the act of congress approved June 3, 1856, to aid in the construction of certain railroads, by the terms of which there was granted to the state for this purpose “every alternate section of land designated by odd numbers, for six sections in width on each side of each of said roads." One of these roads was to run "from near Gadsden to some point on the Alabama and Mississippi state line, in the direction of the Mobile & Ohio Railroad, with a view to connect with said Mobile & Ohio Railroad"; and by a joint resolution of the general assembly of Alabama, approved January 30, 1858, the lands granted to aid in the construction of this road were granted to the Northeast & Southwest Alabama Railroad Company, which afterwards, by authorized consolidation with the Wills' Valley Railroad Company, became the Alabama & Chattanooga Railroad Company. Another of these railroads was to run from Selma to Gadsden; and, by an act of the general assembly approved January 20, 1858, the lands granted by the act of congress to aid in the construction of this road were granted to the Alabama & Tennessee Rivers Railroad Company, which afterwards became the Selma, Rome & Dalton Railroad Company. And still another of these roads was to run "from or near Gadsden to connect with the Georgia and Tennessee line of railroads, through Chattanooga, Wills', and Lookout valleys"; and by an act of the general assembly approved February 8, 1858, the lands granted by the act of congress "in aid of the construction of a railroad from or near Gadsden to some suitable point so as to connect with the Western & Atlantic Railroad of the state of Georgia, designated in said act of congress as running from 'Gadsden to connect with the Georgia and Tennessee line of railroads, through Chattanooga [Chattooga?], Wills' and Lookout valleys,' were granted to the Coosa & Chattanooga (Chattooga?) Railroad Company. Each of these several grants was made subject to the conditions and restrictions, and for the purposes specified, in the act of congress.

The testimony shows that the lands in controversy are situated within the six-miles limit of each of the above-named railroads, according to the original survey and location thereof on file in the general land office at Washington; and that the Alabama & Chattanooga Railroad was completed in 1873; no part of the Coosa & Chattanooga Railroad was ever constructed; and the Alabama & Tennessee Rivers Railroad was constructed only to Jacksonville, a point 22 miles distant from the lands sued for. On September 29, 1890,

an act of congress was approved by which it was declared that "there is hereby forfeited to the United States, and the United States hereby resumes title to, all lands heretofore granted to any state, or to any corporation in aid of the construction of any railroad opposite to and coterminous with the portion of any such railroad not now completed and in operation, for the construction and benefit of which said lands were granted." The joint resolution of the general assembly relating to the lands granted to the state in aid of the construction of a railroad from Gadsden to some point on the Alabama and Mississippi state line, to connect with the Mobile & Ohio Railroad, was not offered in evidence, so far as the record shows. But that is not of importance; the resolution is a public legislative act, of which courts take notice. The title acquired by the state was conveyed to John Swann and John A. Billups, as trustees, with power to sell, by the deed of the governor of Alabama made February 8, 1877, in pursuance of an act of the legislature authorizing the same. It is through two deeds executed by said Swann and Billups, as trustees,-one dated June 1, 1877, conveying the N. 1⁄2 of N. W. 4, and the other dated May 30, 1877, conveying the S. E. 14 of N. W. 4,-that plaintiff claims title to the land in controversy. The defendant claims title under a homestead entry made in the year 1894, after the passage of the forfeiture act above mentioned. It is manifest, therefore, that the determination of the superiority of these respective claims must depend upon the extent of the power of the state to dispose of the lands lying within the conflicting or overlapping six-miles limits of these three roads, on the one hand, and, on the other, upon the extent of the power of congress to declare such lands forfeited, and the effect of the exercise of this power.

The act of congress of June 3, 1856, as frequently construed by this and other courts, vested in the state the right and title to the lands embraced in the grant from the date thereof, which right and title, when the line of each road was definitely fixed, attached to the specific sections, designated by odd numbers, lying within six miles on each side of the fixed line of the road. The granting act, however, provided that "if any of said roads is not completed within ten years, no further sale shall be made, and the lands unsold shall revert to the United States." This provision constituted a condition subsequent, for the breach of which, by the failure to complete either of the roads within the time limited, the United States had the right, at any time thereafter, either by judicial proceedings or by legislative action, to enforce a forfeiture of the lands granted in aid of the construction of such road, and to resume the title thereto. Swann v. Lindsey, 70 Ala. 507; Swann v. Miller, 82 Ala. 530, 1 South. 65; Schulenberg v. Harriman, 21 Wall. 44. the acceptance of the grant, the state became the trustee of the United States, and as such

By

its application and power of disposition of the lands was limited to the purposes expressed in the act creating the trust. The act of congress was a law, as well as a grant, and any application or disposition of the lands by the state in violation of the terms of the act was absolutely void. One of the express provisions of the grant, by which the power of the state to use or dispose of the lands was limited, was "that the lands hereby granted for and on account of said roads, severally, shall be exclusively applied in the construction of that road for and on account of which such lands are hereby granted." In the execution of the trust, therefore, the state had no power to apply or dispose of, to aid in the construction of one railroad, lands which had been granted to it exclusively in aid of the construction of another road, and any attempt on the part of the state to vest in one railroad title to lands granted for and on account of another would be a mere nullity, and inoperative to defeat the right of the United States, in the event of the failure to construct the latter road, to enforce a forfeiture of the lands granted in aid of its construction, and to resume title thereto.

As we have said, the lands in controversy are within the six-miles limit of the surveyed line of each of the three railroads above named. In construing this and similar acts of congress, granting public lands in aid of the construction of railroads, it has become thoroughly well settled that when, by the same statute, several grants are made for the benefit of different railroads, neither priority of location nor priority of construction gives priority of right; but where two or more roads, legally located in pursuance of the act, cross each other, or approach each other so nearly that the limits of the primary grant for the benefit of each overlap, the grant is of equal undivided shares for the benefit of each road. St. Paul & S. C. R. Co. v. Winona & St. P. R. Co., 112 U. S. 720, 5 Sup. Ct. 334; Sioux City & St. P. R. Co. v. Chicago, M. & St. P. Ry. Co., 117 U. S. 406, 6 Sup. Ct. 790; Iron Co. v. Cunningham, 155 U. S. 354, 15 Sup. Ct. 103; Chicago, M. & St. P. Ry. Co. v. U. S., 159 U. S. 372, 16 Sup. Ct. 26. Hence, while the act of congress of June 3, 1856, vested in the state the entire interest in all the lands embraced in the grant lying within the six-miles limit of each | legally located road, yet the state, by the terms of the act, acquired an undivided onethird interest in the lands in controversy, in trust to apply the same exclusively to aid in the construction of the railroad from Gadsden to the Alabama and Mississippi state line to connect with the Mobile & Ohio Railroad; and another undivided one-third interest, in trust to apply the same exclusively for the benefit of the railroad to be built from Selma to Gadsden; and the remaining undivided one-third interest, for the exclusive benefit of the road from Gadsden to connect with the Georgia and Tennessee line of railroads

through Chattooga, Wills', and Lookout valleys. Holding these interests under such express trusts, the state was wholly without power to divert them to other or different purposes, or to apply either share for the benefit of any railroad other than that for and on account of which it was granted, notwithstanding the latter road may never have been constructed or completed. In Chicago, M. & St. P. Ry. Co. v. U. S., supra, it was said: "The grant of an equal undivided moiety of lands in the overlapping limits of two roads was a grant for the benefit of each road in the particular moiety of lands dedicated by the act of congress to its construction. Neither road could get the benefit of the moiety of lands granted for the building of the other road, by reason of the failure of the company constructing the latter road to earn its moiety of the lands. This results from the explicit declaration by congress of the purposes for which the lands were to be used, and, by express words, excluding all others. The provision that the lands 'hereby granted shall be disposed of by said state for the purposes aforesaid only' precludes the idea that the state could, without a breach of trust, apply lands for the benefit of one railroad that had been granted to aid the construction of another road." Hence, the act of the general assemby of Alabama approved February 20, 1883 (Acts 1882-83, pp. 62-66), which was offered in evidence by plaintiff, in so far as it was an attempt to vest in John Swann and John A. Billups, as trustees, to whom had passed by the governor's deed the title to the lands granted in aid of the construction of what is now the Alabama & Chattanooga Railroad, the title to the interests which had been granted to the state to be applied exclusively for the benefit of the other two railroads, was a mere nullity, and did not operate to vest any title in said trustees, or to defeat the right of the United States to enforce the forfeiture as to these interests and resume title thereto.

From what has been said, it clearly results that Swann and Billups never acquired title to more than an undivided one-third interest in the lands in controversy, either by the deed of the governor of the state or by the act of the general assembly above referred to, and that plaintiff acquired no greater interest through the deed of Swann and Billups. It further results that, by reason of the failure to construct the railroad from Gadsden through Chattooga, Wills', and Lookout valleys, to connect with the Georgia and Tennessee line of railroads, and the failure to complete the railroad from Selma to Gadsden to the lands in controversy, an undivided two-thirds interest in the lands became subject to the reverter clause of the original granting act; and, being lands lying opposite to and coterminous with the uncompleted portions of these two roads, they were within the operation of the forfeiture act of September 29, 1890, and the title to

said undivided two-thirds interest was, by force of said act, resumed in the United States. But the other undivided one-third interest in said lands, having been earned by the completion of the Alabama & Chattanooga Railroad, congress had no power to declare forfeited, and it was not, in fact, included in the terms of the forfeiture act. By his homestead entry, in 1894, the defendant, therefore, acquired a right to said undivided two-thirds interest, superior to that of plaintiff. The duly-certified copies of defendant's homestead application, and of the receiver's certificate of entry, or receipt, were admissible in support of this right, and the trial court erred in excluding them. The certified copy of the official letter from the commissioner of the general land office to the register and receiver at Huntsville, notifying the latter of the cancellation of list 2 of lands selected by the Alabama & Chattanooga Railroad Company, filed May 13, 1885, would, perhaps, have been competent evidence, if accompanied by evidence tending to show that the lands in controversy were affected by the cancellation. Holmes v. State, 108 Ala. 24, 18 South. 529. But no such evidence was offered, and there is nothing in the letter itself to indicate to what particular lands it referred. On its face, therefore, the letter was irrelevant, and was properly excluded on a general objection.

To the introduction of the deed from Swann and Billups, trustees, to plaintiff, the defendant objected, on the ground that its execution by John A. Billups had not been proven, and it was not acknowledged by him as required by law. The certificate of acknowledgment reads: "The State of Alabama, County of I, T. G. Williams, judge of probate, hereby certify that John A. Billups, whose names are signed to the foregoing conveyance," etc.; the remainder being in the plural form of the acknowledgment prescribed by the statute. There is nothing either in the caption or in the body of the acknowledgment, or in the signature of the officer, to indicate in what county it was taken and certified, nor is there anything in the deed or caption thereof, as copied into the record, to indicate in what county it was executed; and for this reason it is insisted the acknowledgment is invalid. It is the policy of the law to uphold certificates of acknowledgment when it is possible to do so, and not to permit conveyances to be defeated by mere technical objections to the certificate, if the substance thereof complies with the form prescribed by the statute. For this purpose courts will, in proper cases, resort to well-founded presumptions, and to those rules of evidence which require them to take judicial cognizance of certain facts not affirmatively proven. Courts will, for instance, take judicial notice of the various commissioned officers of the state, and of their official signatures, the extent of their authority, the dates of their commissions,

and the date of the expiration of their respective terms of office. Cary v. State, 76 Ala. 78; Sandlin v. Anderson, Id. 403. The venue of the acknowledgment as stated was simply "The State of Alabama." This is prima facie evidence that the acknowledgment was taken and certified by the officer within this state, and we judicially know that T. G. Williams was, at the time of the acknowledgment, probate judge of Pickens county. We know, then, that the acknowledgment was taken in this state by an officer authorized by statute to take and certify acknowledgments within the territorial area of his county. We may therefore indulge the presumption, in favor of the regularity and validity of official acts of this character, that the officer exercised his functions in this particular case within the limits of his territorial jurisdiction,-that is to say, in Pickens county. A precisely similar acknowledgment was upheld in Carpenter v. Dexter, 8 Wall. 528, in which it was said: "The words, 'State of New York,' present some definite locality. The commissioner of deeds in New York had authority to act only in his county; and it will be presumed, although the state be named, that the officer exercised his office within the territorial limits for which he was appointed." See, also, Rackleff v. Norton, 19 Me. 274; Bradley v. West, 60 Mo. 33; People v. Snyder, 41 N. Y. 397. The acknowledgment was sufficient, and, the deed having been recorded within 12 months from the date of its execution, was admissible in evidence without proof of its execution. Code 1896, § 992. The evidence, as presented in the record, shows title in the plaintiff to only an undivided one-third interest in the land sued for, and the court below erred, therefore, in rendering judgment in plaintiff's favor for the entire interest. Reversed and remanded.

The foregoing opinion was prepared by Hon. ROBERT C. BRICKELL, late chief justice, before his retirement from the bench, and was adopted by the present court.

(120 Ala. 293)

LINEHAN v. STATE. (Supreme Court of Alabama. Jan. 10, 1899.) MURDER INDICTMENT-CONVICTION FOR LESSER OFFENSE-APPEAL-EVIDENCE-CONDUCT OF SoLICITOR-CONFESSIONS-DECLARATIONS IN INTEREST-INSTRUCTIONS-JUDGMENT-COSTS.

1. Under an indictment for murder, conviction may be had for manslaughter in the second degree.

2. Objections to evidence, to be available, must state specifically the grounds thereof.

3. Where accused testifies in his own behalf, it is competent to inquire on cross-examination as to his motives for particular acts relevant to the issues.

4. It is not objectionable for the solicitor to stand close to accused, who is a witness, and motion with his hands in illustration of a question asked.

5. It is incompetent, on cross-examination of

a witness testifying to confessions of accused, to inquire of him concerning another statement of accused made 20 minutes after the conversation containing the confession terminated, no connection between the two conversations being shown.

6. An independent declaration of accused, made 20 minutes after a confession, that he had "done nothing wrong, and wanted to come to court and stand his trial," is inadmissible, being a declaration in interest.

7. The evidence for the state tended to show that accused swore at deceased, who stepped down and towards accused. Accused used another opprobrious epithet towards him, and, when he was 15 feet away, drew his pistol, holding it by his side, and, when 8 or 10 feet away, accused shot at deceased, who turned to leave, and took two or three steps, when accused shot him again, killing him. Accused's evidence tended to show that deceased, as he advanced towards accused, put his hand to his hip pocket, and was pulling and jerking at something in his pocket when accused fired. Held, that the affirmative charge for accused was properly refused.

8. A judgment ordering accused to perform additional labor, not to exceed a certain time, at so much per day, until the costs are satisfied, is not a determination of the time necessary to work out the costs, as required by Code 1896, § 4532.

Appeal from circuit court, Walker county; James J. Banks, Judge.

John Linehan was convicted of manslaughter, and he appeals. Reversed.

The evidence introduced by the state tended to show that in Morgan county, Ala., before the finding of the indictment, the defendant, John Linehan, killed Allen Oakley, by shooting him with a pistol, and then tended to show that the killing was done under the following circumstances: One George Fram was to have a trial before the mayor of Carbon Hill. Oakley was the marshal of said town. The case was continued, and, when Oakley walked out on a small porch in front of the mayor's office, Linehan asked him why the trial had been put off. Oakley replied that he was running that court, whereupon Linehan told him that "he was running it in the hell of a way." Linehan stepped down from the porch, and put his hand in his hip pocket. Oakley told him to go off; that he wanted peace. Linehan then started up the street, and said, "Damn you, if you have not got peace, I will give it to you." Oakley told him that he must not curse him, and stepped down from the porch. When Linehan was about 15 feet from Oakley, he used a very opprobrious epithet towards him, and drew his pistol, and held it by his side; and, as Oakley advanced to within 8 or 10 feet from Linehan, Linehan turned, and shot at Oakley. Oakley then turned to leave, and took two or three steps, when Linehan shot again, striking Oakley in the shoulder blade, from which wound he died. The evidence for the defendant tended to show that, after Linehan used the opprobrious epithet to Oakley, Oakley stepped down from the porch, and put his hand to his hip pocket, and started towards Linehan, pulling and jerking at something in his pocket, and that then it

was that Linehan fired. The facts pertaining to the rulings of the trial court upon the evidence which are reviewed on the present appeal are sufficiently stated in the opinion. The bill of exceptions recites that, "during the examination of the defendant, the solicitor stood up in front of him, and near to him, and asked defendant if Oakley did not tell him to go on off, just before the shooting, and motion this way.' The solicitor had both hands raised, and motioned to go away." The defendant objected to the manner of the solicitor. The court overruled the objection, allowed the solicitor to proceed in the same manner, and to this ruling the defendant duly excepted. Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe the evidence, they will find the defendant not guilty." (2) "The court charges the jury that, if the defendant relies on a justification of his acts partly by threats made against him by Allen Oakley before the killing, then such threats will be a justification of the killing, if the jury find from the evidence that deceased, at the time of the killing, was manifesting an intention of carrying such threats into execution, by a positive act then done, or that, from the acts of Allen Oakley at the time of the killing, it would have appeared to a reasonable mind, under the circumstances, that the deceased was attempting to execute the threats against defendant, and there was no reasonable means of escape without increasing the danger, and the defendant was not at fault in bringing on the difficulty." (3) "The court charges the jury that a person charged with murder, and who is not at fault in bringing on the difficulty, who seeks to justify himself on the ground of threats against his own life, is permitted to introduce such threats so made, and the same should be regarded as affording a justification for the killing, if it be shown that at the time of the homicide the person killed, by some act done, manifested an intention to execute the threats so made, or reasonably appeared to defendant to be so doing, if said threats had been previously communicated to this defendant, and it is shown that there was no reasonable means of escape without increasing the peril." After the return of the verdict, and before sentence, motion was made by the defendant in arrest of judgment, upon the grounds as stated in the opinion. This motion was overruled, and the defendant duly excepted.

Coleman & Bankhead, for appellant. Wm. C. Fitts, Atty. Gen., for the State.

DOWDELL, J. The defendant was tried and convicted of manslaughter in the second degree, under an indictment for murder. Motion was made by the defendant in arrest of judgment, "on the ground that the defendant,

as shown by the record in this case, was not on trial for manslaughter in the second degree." This motion was overruled by the court, and we have no doubt of the correctness of the ruling. There is nothing in the contention that a conviction for manslaughter in the second degree cannot be had under an indictment for murder. The charge in the indictment of the higher offense of murder includes the lower grades of homicide. Manslaughter in the second degree is an unlawful killing, and is necessarily included in an indictment for the higher offense of murder. The question raised by this motion is fully answered by the statute. Code 1896, § 5306. See, also, Hudson v. State, 34 Ala. 253; Henry v. State, 33 Ala. 389, the latter case overruling Bob v. State, 29 Ala. 20.

The defendant testified as a witness in his own behalf, and, upon his cross-examination by the solicitor, was asked if he put the pistol in his pocket, and followed Oakley (the deceased) down the street, the time the witness J. R. Cooper testified about. The defendant answered that he put the pistol in his pocket, and went down the street the same way Oakley had gone. The solicitor then asked the witness, "What did you get that pistol for?" The defendant objected to the question; the court overruled the objection, and required the witness to answer; and the answer was, "Just got it, and put it in my pocket." Motion was made by defendant to exclude the answer, which was overruled, and exception to the ruling reserved. The defendant further testified on cross-ex amination that he went down the street, and stood awhile, and went back, and put it (the pistol) up. The solicitor then asked the witness, "How came you to put the pistol up when you went back?" to which he answered, "Because Cooper said it was Naugher's pistol." This question and answer were also objected to by the defendant, and exception reserved to the action of the court in overruling the objection. The objections made to both of these questions were general, not specifying any ground, and for that reason were bad. Gunter v. State, 111 Ala. 23, 20 South. 632. But, apart from the generality of the objection, it was permissible upon a cross-examination of the defendant, when sworn as a witness in his own behalf, to inquire as to his motives for particular acts relevant to the issues, though it would not be competent for him to testify as to his motives as an excuse for his acts, upon his direct examination. If the evidence sought to be elicited by the question to the defendant was to show that the defendant had put the pistol in his pocket, and gone down the street the way Oakley, the deceased, went, for the purpose of using it on Oakley, and this was within the scope and purview of the question, then it was certainly competent. The case of Burke v. State, 71 Ala. 382, cited by counsel for defendant, does not contravene this proposition. In that case it was decided that