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ond. It was right in itself, for the Alabama Iron-Works were notified of the market for which they were intended, and that intended use thereby became an element of the injury sustained. Snow v. Manufacturing Co., 69 Ala. 111, 118, 119; Daughtery v. Telegraph Co., 75 Ala. 168.

If there had been testimony tending to show, or if, from the nature of the machines, we could infer, that Hurley & Brown could have supplied the want, and in proper time, at some other manufactory, then it probably would have been their duty to do so, and thus have lightened the burden of the breach which rested on the defendant. The uncontradicted testimony, however, is that they did not, and could not, learn that the Iron Works Company would violate their contract until it was probably too late to make other arrangements. Yet, notwithstanding this delay, Hurley & Brown made prompt and diligent efforts at several manufacturing centers,-indeed, they were extra diligent, if the testimony be true,--and failed at every point. Charges asked, seeking to raise this question, were all rightly refused. They are all opposed to the trend of the testimony, and would have tended to mislead. For that reason, if for no other, they were rightly refused. Bell v. Reynolds, 78 Ala. 511.

There is nothing in any of the questions raised. Afirmed.

CHAPPELL 0. STATE.

(Supreme Court of Alabama. January 21, 1889.) TRESPASS-CRIMINAL PROSECUTION-EVIDENCE.

In a prosecution for trespass under Code Ala. 1886, $ 3874, declaring the offense to be an entry on the premises of another without legal cause or good excuse, after having been warned within six months next preceding, the state, having proved warning and an entry a month or two afterward, cannot show that defendant entered a second time, after the prosecution was commenced, and an instruction based on such evidence is erroneous.

Appeal from county court, Macon county; W. H. Hart, Judge.
Dump Chappell, con victed of trespass after warning, appeals.
T. N. McClellan, Atty. Gen., for the State.

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CLOPTON, J. The defendant was convicted of trespass after warning. After having proved that notice not to enter the premises of the prosecutor was given the defendant in September, 1887, and that he entered the premises a month or two thereafter, the prosecution was permitted to prove, against the objection of the defendant, that he entered on the premises a second time in March, 1888. The prosecution was commenced February 20, 1888. The offense declared by the statute consists of an entry on the premises of another, without legal cause or good excuse, after having been warned within six months next preceding. Code 1886, § 3874. One wrongful entry within six months after warning completes the offense. When the warrant or indictment includes but one offense, and the state offers evidence of a trespass, so as to particularize and identify it, an election is made to prosecute for that particular offense, and other distinct acts cannot be proved as ground of conviction. It will be inferred that the warrant refers to the offense of which proof is first offered, and the election is compelled, in order to prevent the defendant being prejudiced by evidence of other offenses, for which he is not really indicted, and to avoid a conviction of the offense charged by proof of other and different offenses. McCullough v. State, 63 Ala. 75. In this case, the warrant, of necessity, refers to an offense completed before its issue. Evidence of an offense committed afterwards, as a ground of conviction, is incompetent.

The court not only admitted the evidence of a trespass in March, but charged the jury substantially that if the warning was given in September, 1887, and the trespass was committed in March, 1888, and this was within six months after the warning, they must find the defendant guilty. The prosecution having been commenced in February, 1888, the effect of the charge was to instruct the jury that the defendant was guilty as charge, and should be convicted if he committed a trespass after the commencement of the prosecution. This is manifest error.

Reversed and remanded.

GANDY 0. STATE.

(Supreme Court of Alabama. January 17, 1889.) 1. INTOXICATING LIQUORS—CONSTITUTIONALITY OF ACT-LOCAL OPTION ELECTION.

Act Ala. Nov. 27, 1886, entitled "An act to amend an act approved December 12, 1882, to amend section 1544 of the Code of Alabama, so far as applies to Butler county, Ala., so as to authorize the probate judge of said county to order an election to determine whether spirituous, vinous, or malt liquors,” etc., "shall be sold, given away, or otherwise disposed of, in precinct 12 of said county,” is, as the latter part of the title indicates, a complete law, original in form, providing for a "local option " election in that precinct, and amends no previous law, except by implication. Held, that the reference in the title to the amended act may be regarded as surplusage; and, so regarded, the act is not violative of Const. Ala. 1875, art. 4, $ 2, providing that “each law shall contain but one subject, which shall be clearly expressed in its title, ” and that “no law shall be revived, amended,” etc., "by reference to its title only, but so much thereof as is revived, amended,” etc., "shall

be re-enacted and published at length.” %. ELECTIONS AND VOTERS-ILLEGAL VOTE-KNOWLEDGE OF VOTER.

It is no defense to the charge of illegal voting that defendant had forgotten the fact of his conviction of petit larceny, which disqualified him to vote, or that he was advised that there was no record of his conviction on the court dockets, and voted under this advice, honestly believing he had a lawful right to vote. Follow

ing Gandy v. State, 2 South. Rep. 465. 8. CRIMINAL LAW-EVIDENCE-CoxviCTION OF OTHER OFFENSE.

Defendant's conviction of petit larceny may be shown by the trial docket where that is the only book of record kept by the county court, and the one in which the

final record of judgments is kept. 4. SAME-SUFFICIENCY OF RECORD-COLLATERAL ATTACK.

Though the record of a judgment of conviction of petit larceny shows that defendant was charged with receiving stolen goods, yet the judgment is not void, and

cannot be collaterally assailed. 6. SAME-EVIDENCE MADE COMPETENT BY THAT OF ADVERSE PARTY.

When defendant has introduced irrelevant evidence, the state is justified in introducing, by way of rebuttal, evidence wbich would other ise be equally irrelevant.

Appeal from circuit court, Butler county; John P. HUBBARD, Judge.

Mich Gandy was indicted and convicted of the offense of illegal voting, and he appeals. For opinion on former appeal, see 2 South. Rep. 465.

John Gamble, for appellant. T'. N. McClellan, Atty. Gen., for the State.

SOMERVILLE, J. The indictment in due form charges the defendant with having voted illegally at a special election held in Butler county, under the authority of an act approved November 27, 1886, providing for the expression of the popular voice in that county on the subject of adopting or rejecting a prohibitory liquor law. The appellant assails the constitutionality of this act as violative of section 2 of article 4 of the constitution of Alabama, which provides that “each law shall contain but one subject, which shall be clearly expressed in its title;" and that “no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only, but so much thereof as is revived, amended, extended, or conferred shall be reenacted and published at length.” Const. 1875, art. 4, § 2. On December 12, 1882, the general assembly had amended section 1544 of the Code of 1876, so far as applicable to Butler county, so as to prohibit the granting of any license by the probate judge to sell vinous, spirituous, or malt liquors in that county, unless on the recommendation of a majority of the qualified voters residing in the election precinct where the applicant desired to sell such liquor. Acts 1882–83, p. 272.

The act here assailed is entitled “An act to amend an act approved December 12, 1882, to amend section 1544 of the Code of Alabama, so far as applies to Butler county, Ala., so as to authorize the probate judge of said county to order an election to determine whether spirituous, vinous, or malt liquors, or intoxicating beverages, or intoxicating preserved fruits, shall be sold, given away, or otherwise disposed of in precinct 12 of said county.” After this title follows a law original in form, and complete in itself, in nine sections, pro. viding for the details of an election to be ordered by the probate judge to determine the question of “prohibition” or “no prohibition,” in precinct 12, of said county of Butler, and making it unlawful to grant licenses under the general law to sell any liquors of an intoxicating character in such precinct, in the event that a majority of the electors voting at such election should vote for "probibition."

If the first part of the foregoing act, which purports to be amendatory, had been omitted, or if we now were permitted to expunge it, there could be no doubt as to the constitutionality of the law. It would be no objection that it amended or repealed by implication several sections of the Code without referring to them in any manner, or publishing them at length as amended. The constitutional provision in question, (article 4, § 2,) as said in Ex parte Pollard, 40 Ala. 77, 100, and often since reiterated in substance, "reaches those cases where the act is strictly amendatory or revisory in its character. Its prohibition is directed against the practice of amending or revising laws by additions, or other alterations, which without the presence of the original are usually unintelligible. If a law is itself complete and intelligible, and original in form, it does not fall within the meaning and spirit of the constitution.” Falconer v. Robinson, 46 Ala. 340; 3 Brick. Dig. p. 133, § 88 et seq.; Cooley, Const. Lim. (5th Ed.) *152.

It was said by Judge Cooley, in construing a similar clause in the constitution of Michigan, in People v. Mahaney, 13 Mich. 481, 497: “The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effect, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws. An amendatory act which purported only to ins certain words, or to substitute one phrase for another in an act or section which was only referred to, but not republished, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for that express purpose. Endless confusion was thus introduced into the law, and the constitution wisely prohibited such legislation. But,” he concludes, “an act complete in itself is not within the mischief designed to be remedied by this provision, and cannot be held to be prohibited by it without violating its plain intent.” This view is generally sustained by the adjudged cases: Steuart v. County Com'rs, 82 Ala. 209, 2 South. Rep. 270; Lehman v. McBride, 15 Ohio St. 572, 605; Shields v. Bennett, 8 W. Va. 74, 88; Insurance Co. v.

Taxing Dist., 4 Lea, 644; Cooley, Const. Lim. *151, *152. The act under consideration being original in form, and complete and independent in itself, is not, therefore, repugnant to the section of the constitution above quoted, provided there be unity in the subject of the law, and that subject is "clearly expressed in its title.' If the law were entitled “An act to authorize the probate judge of Butler county, Ala., to order an election to determine whether spirituous and other named liquors shall be sold, or other

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wise disposed of, in precinct 12 of said county,” as the latter part of the title purports to do, it would be unobjectionable on any constitutional ground. This title would express the true purpose and object of the law in language free from all ambiguity. Ballentyne v. Wickersham, 75 Ala. 533. Is it vitiated by the fact that the title purports to amend the general law precisely to this extent? A casual inspection of the whole law, title and act together, shows plainly that the only amendment intended is one by implication, effected by an original law, complete in form and substance; such as we have shown is not prohibited by any clause of the constitution. The title of the act, taken alone, also shows this intent clearly. The old law is to be amended, not strictly or technically, but by implication merely, so as to authorize a specific purpose to be accomplished through the medium of new legislation. The first part of the title, therefore, is surplusage, and may be rejected as such. It does not change the purpose of the law, nor destroy the unity of the subject. Stein v. Leeper, 78 Ala. 517. The law, as it was before the new act, would have been incidentally amended, whether the title had so proclaimed it or not.

We can well see that some plausible reasons can be advanced in support of a different construction of the constitutional clause we are considering; but we consider the view above adopted as more conservative, and less embarrassing to legislation, while, at the same time, it fully meets the mischief intended to be remedied by the adoption of the clause in question.

When this case was last before us we held that it was no defense to the charge of illegal voting that the defendant had forgotten the fact of his conviction of petit larceny, which disqualified him to exercise the right of an elector, or that he may have been advised by friends or legal counsel that there was no record of the conviction upon the court dockets, and that he voted under this advice, honestly believing that he had a lawful right to vote. We said: “The fact [of conviction) is one fixed and unqualified in its nature, and admitting of no ambiguity of legal signification, so that the law fastened on him [the defendant] an unconditional knowledge of it, conclusive against any proof to the contrary, as an irrebuttable legal presumption." Gandy v.

v State, 82 Ala. 61, 2 South. Rep. 465. The result of this decision is that the defendant, having been convicted of larceny, was conclusively bound to know and remember the fact, as fully as he was bound to know the legal effect of such conviction, which was to disqualify him to exercise the right of suffrage.

The rulings of the court on the charges given and refused conform to the principles announced in that case, and are free from error.

There is much of the evidence in the present case introduced by the defendant which could well have excluded, but no objection seems to have been interposed to it. This irrelevant evidence has consequently justified the introduction of other evidence by way of rebuttal, touching the same subject. matter, which itself would otherwise have been irrelevant. Ford v. State, 71 Ala. 385.

There was no error in admitting in evidence the entry upon the trial docket of the county court, showing the conviction of the defendant of petit larceny, on his plea of guilty, on August 10, 1881, which disqualified him to exercise the right of an elector under the provisions of the state constitution. Const. 1875, art. 8, 8 3; Washington v. State, 75 Ala. 582. This docket was shown to be the only book of record of the county court, and the one in which the final record of judgments in that court was ept. The fact that the original papers, containing the indictment or charge, were shown to have been lost, was a sufficient excuse for their non-production, even if they were otherwise requisite to a proper understanding of the judgment of conviction based on them.

A like observation applies to the entry on the same docket of the second conviction of petit larceny, on April 21, 1883. This record shows that the de

fendant was charged with receiving stolen property, but by the judgment of the court he was found guilty of petit larceny. It may be that the judgment was erroneous, and could have been reversed on appeal, but it was not void, and could not be collaterally assailed upon the trial of this cause.

The entry showing the conviction of the defendant for living in adultery would clearly have been inadmissible in evidence, but for the fact that the defendant had himself introduced evidence of this con viction, as found on the docket after search made by his counsel. He had attempted to show that he believed that he had been convicted only of living in adultery, and not of larceny, and direct reference had been made to this judgment entry in the testimony introduced in his behalf. The state only introduced the very record to which the defendant's evidence referred, and in this there was no error.

The other exceptions to evidence are not, in our judgment, well taken. The assignments of error, based on the charges given and refused, as we have said above, must be overruled on the authority of Gandy v. State, 82 Ala. 61, 2 South. Rep. 465.

We find no error in the record, and the judgment is alfirmed.

FALLIN O. STATE.

(Supreme Court of Alabama. January 24, 1889.) 1. CRIMINAL LAW-APPLICATION FOR CHANGE OF Venue-Delay.

Corle Ala. 1886, $ 4485, provides that an application for change of venue in a criminal case must be made as early as practicable before trial, or that it may be made, after conviction, on new trial being granted. Defendant was convicted of murder in August, 1887, which conviction was reversed, on appeal, in January, 1888, and at the February term, 1888, the case was continued at defendant's instance. On August 7, 1888, defendant being present in court, the trial was set for August 15th. On the latter day, after the state had announced "ready for trial,” defendant first applied for change of venue, assigning as an excuse for the delay that he had been in jail until May 3, 1898, and unable to secure the information on which his application was based. It appeared that all the facts alleged in support of the application occurred before February, 1888, except the election of a brother of the murdered person as sheriff, and of another person, who, it was alleged, had circulated petitions to have defendant denied bail, as member of the legislature, but it did not appear that the former bad qualified, or had anything to do with drawing and summoning the jury, or that the latter did anything after his election; nor was it shown that defendant did not know the facts relied on when the time was fixed for trial. Held,

that the application was properly denied. 2. HOMICIDE-SELF-DEFENSE-INSTRUCTIONS.

An instruction that if defendant did not bring on the difficulty, but was talking to deceased quietly and orderly, and the latter called defendant a "blamed, lying son of a b- "and placed bis hand on his pocket in such a way as reasonably to indicate that his purpose was to draw a weapon, defendant was authorized to strike first, was properly refused, where defendant testified that he could safely have prevented deceased from drawing a weapon, as authorizing an acquittal, without taking into consideration defendant's duty to retreat or disarm deceased. Appeal from circuit court, Elmore county; JAMES R. DOWDELL, Judge.

Jesse T. Fallin was indicted for the murder of Ross Powell, “by striking him with a hoe," and was convicted of murder in the second degree. On appeal, the conviction was reversed, and the cause remanded. 3 South. Rep. 525. On the trial, defendant applied for a change of venue, and excepted to its refusal, and he also excepted to a charge given by the court ex mero motu, and to the refusal of a charge asked by him in writing. The charge given was in these words: “If the jury believe from the evidence that the defendant could have safely retreated, or could have safely disarmed the deceased without danger to himself, then he is not guiltless of the homicide.” The charge asked and refused was in these words: “If the jury believe from the evidence that the defendant did not bring on the difficulty, but was talking to the deceased in a quiet and orderly manner, and the deceased called him a

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