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igation or extenuation.-Golson's case, 86 Ala. 601. The tone of the voice is immaterial if the language is heard.-Mullen's case, 82 Ala. 42. The words "I'll go where I darn please, and it don't make a darn bit of difference where it is," sufficient to support prosecution.—Weaver's case, 79 Ala. 279.

CHAPTER 122.

ABUSIVE OR THREATENING LETTERS.

4307 (3769) (4106) (3553) (13). Sending threatening or abusive letters. Any person, who sends to another a threatening or abusive letter, which may tend to provoke a breach of the peace, must be punished, on conviction, by fine and imprisonment in the county jail, or hard labor for the county; the fine not to exceed in any case five hundred dollars, and the imprisonment or hard labor not to exceed six months.

Graves's case, 9 Ala. 447; Crow's case, 18 Ala. 546; Reid's case, 53 Ala. 402.

CHAPTER 123.

ACCESSORIES AND ACCOMPLICES. 4308, 4309.

4308 (3704) (4802) (4129) (480). Accessories before the fact; principals in first and second degrees; distinction abolished.-The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abolished; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must hereafter be indicted, tried and punished as principals, as in the case of misdemeanors.

Participants equally guilty.—Wicks's case, 44 Ala. 398; Scott's case, 30 Ala. 503; Hughes's case, 75 Ala. 31. A principal in the second degree is one lending his countenance and encouragement or otherwise aiding, while another does the act.-Tally's case, 102 Ala. 25, 67. The aiding or abetting necessary to constitute principal in second degree must be by preconcert, or known to principal in first degree-the aid need not have caused the result; if it facilitated or gave confidence to principal in first degree it is sufficient.-Tally's case, 102 Ala. 69. Principals in first and second degree equally guilty.-Jolly's case, 94 Ala. 23. An accessory before the fact is one who causes or procures the commission of a crime by another.-Griffith's case, 90 Ala. 583. To make accessory guilty it is not necessary that crime be committed in manner or at time as agreed on. Griffith's case, 90 Ala. 583. Positive or direct proof not necessary to establish the relation of the parties.-Martin's case, 89 Ala. 115; Gibson's case, 89 Ala. 121; Tanner's case, 92 Ala. 1; Jolly's case, 94 Ala. 19; Elmore's case, 110 Ala. 63.

4309 (4005) (4150, 4151) (3589, 3590) (48, 49). When concealing felon makes one an accessory after the fact.-Any person, who, knowing that another has committed a felony, and not occupying

the legitimate relation of parent, child, brother, sister, husband, or wife to such offender, conceals, or gives any other aid to such offender, with intent to enable him to avoid or escape from arrest, trial, conviction, or punishment, is an accessory after the fact, and, on conviction, must be fined not more than one thousand dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than six months; and if the principal felon is dead, or has fled from justice, such accessory may be prosecuted. and convicted before the principal; but in such case it shall be necessary to allege in the indictment, and to prove on the trial, the fact that the principal felon is dead or has fled.

CHAPTER 124.

ADULTERY AND FORNICATION.

4310 (4012) (4184) (3598) (57). Living in adultery or fornication. If any man and woman live together in adultery or fornication, each of them must, on the first conviction of the offense, be fined not less than one hundred dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than six months; on the second conviction for the offense, with the same person, the offender must be fined not less than three hundred dollars, and may be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than twelve months; and, on a third, or any subsequent conviction, with the same person, must be imprisoned in the penitentiary for two years. (Form 57.)

Adultery is illicit connection where either is married, and includes fornication. Hinton's case, 6 Ala. 864; White's case, 74 Ala. 31. Must be a living together; one act, or occasional acts, not sufficient; what constitutes living together.-Hall's case, 53 Ala. 463; Smith's case, 39 Ala. 554; Collins's case, 14 Ala. 608; Quartemas's case, 48 Ala. 269. The question of living together is for the jury.-Hall's case, 53 Ala. 463. Marriage of one of the parties is essential to adultery; fornication, if neither is married, or in the unmarried party. Buchanan's case, 55 Ala. 154; Banks's case, 96 Ala. 79. Parties having gone through a prima facie valid marriage, unless they know the facts which make the marriage void, are not guilty.-Ib.; Vaughn's case, 83 Ala. 55; Banks's case, 96 Ala. 79. Evidence: Marriage may be proved by the acts and declarations of the parties.-Owens & Beaty's case, 94 Ala. 97. Evidence against one only of the parties should not be excluded, but limited to the one.-Ib. Adultery is not necessarily merged if the parties are guilty of bigamy.-Ib. Where parties defend by showing marriage to each other, prosecutor may show acts before the marriage.-Ib. One act of illicit intercourse, and an agreement or consent that it will be repeated if opportunity offers, is sufficient.-Bodiford's case, 86 Ala. 67 (Doubted, Hall's case, 88 Ala. 236). A living together for a single day or night, with intent to continue the illicit intercourse constitutes the offense. Walker's case, 104 Ala. 56; Brown's case, 108 Ala. 18. Voluntary sexual intercourse is not the offense, but only an element thereof.-Brown's case, 108 Ala. 18. The acts and conduct of the parties prior to and at the time of living together admissible.-Ib. The offense is seldom or never capable of direct proof. Ib. While occasional acts of adultery do not constitute the offense, yet the jury may convict on it.-Wright's case, 108 Ala. 60. The court may order a severance when one party has not been arrested.-Wright's case, 108 Ala. 60. An agreement for sexual intercourse consummated at convenience constitutes the offense.-Walker's case, 104 Ala. 56. The fact that a man makes frequent visits to a woman of bad reputation does not, as matter of law, tend to

show adultery.-Hall's case, 88 Ala. 236. A conviction may be had on proof of four acts of illicit intercourse in a month's time, and declarations by man that he did so whenever he desired.-Smith's case, 86 Ala. 57. Adulterous acts prior to time alleged may be shown.-Cross's case, 78 Ala. 430. On a joint trial for adultery the husband or wife of either party is not a competent witness.-Birge's case, 78 Ala. 435. Evidence of declarations and conduct, cohabitation and confessions of the parties, but not of general reputation, admissible to prove marriage.-Buchanan's case, 55 Ala. 154; Green's case, 59 Ala. 68; Cameron's case, 14 Ala. 546. Admissibility of evidence of anterior acts.--Lawson's case, 20 Ala. 65; McLeod's case, 35 Ala. 395; Alsabrook's case, 52 Ala. 24. Admissibility of evidence of subsequent acts.-Smitherman's case, 40 Ala. 255; Crowley's case, 13 Ala. 172; Alsabrook's case, 52 Ala. 24; Lawson's case, 20 Ala. 65. Proof of defendant's sex.-White's case, 74 Ala. 31. Proof of woman's general reputation for want of chastity; when admissible.-Blackman's case, 36 Ala. 295. When burden of proving death of absent husband, on woman claiming such defense.-Cameron's case, 14 Ala. 546. Confessions and admissions by either party, admissible only against party making them.-Lawson's case, 20 Ala. 65. Unless made in presence of the other.-Gore's case, 58 Ala. 391. Declarations, unconnected with conversations or admissions offered by the state, inadmissible.-Lawson's case, 20 Ala. 65. Conversations during childbirth, in presence of female, in which she took no part, inadmissible against her. Ib. Direct fact of adultery need not be proved; presumptive or circumstantial evidence sufficient.-Ib.; Collins's case, 14 Ala. 608. See also Glaze's case, 9 Ala. 283; Crowley's case, 13 Ala. 172. One party competent witness for the other, to be weighed by the jury.-Crowley's case, 13 Ala. 172. Husband cannot testify against wife, or her paramour, for this offense.-Cotton's case, 62 Ala. 12. If proof shows both parties unmarried, conviction cannot be had under indictment charging adultery only.-Smitherman's case, 27 Ala. 23.

CHAPTER 125.

AFFRAYS.

4311 (3764) (4101) (3548) (8). Punishment of affray.—All persons guilty of an affray must, on conviction, be fined not more than five hundred dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than six months. (Form 4.)

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4312 (4508) (4978) (4302) (751). Questions of law reserved by defendant, by bill of exceptions.-Any question of law arising in any of the proceedings in a criminal case, tried in the circuit or city

Dec. 17,

1894, p. 126.

court, may be reserved by the defendant, but not by the state except as otherwise provided in this chapter, for the consideration of the supreme court; and if the question does not distinctly appear on the record, it must be reserved by bill of exceptions, duly taken and signed by the presiding judge, as in civil cases; but it is not necessary to reserve an exception to the giving or refusal of a special charge asked in writing, nor to the ruling of the court upon a demurrer to an indictment or other pleading, nor to any ruling or action of the court which is required to appear of record; but in every such case an exception is presumed on appeal.

Exceptions must not be general; specific objections must be pointed out. Cohen's case, 50 Ala. 108; Irvin's case, Ib. 181; Gray's case, 63 Ala. 69; Hardin's case, Ib. 39; McGehee's case, 52 Ala. 224; Farley's case, 72 Ala. 170; Wood's case, 76 Ala. 35; Dickey's case, 68 Ala. 508; Williams's case, 68 Ala. 551. And point of objection must appear to have been subject of exception when made.-Reynolds's case, 68 Ala. 502. Exception to charge of court must be taken before jury leave the bar.-Reynolds's case, supra. Certainty requisite in setting out matter of exception.-Boswell's case, 63 Ala. 307; Strawbridge's case, 48 Ala. 308; Ex parte Mayfield, 63 Ala. 203; Burns's case, 49 Ala. 370. Exception induced by party excepting, not allowed.-—Leonard's case, 66 Ala. 461; Shelton's case, 73 Ala. 5. Bill of exceptions not necessary, when error affirmatively appears of record.-Foster's case, 39 Ala. 229; Ex parte Knight, 61 Ala. 483. Error without injury, no ground of exception or complaint.-Taylor's case, 48 Ala. 157; Blevins's case, 68 Ala. 92; Edwards's case, 49 Ala. 334; Childs's case, 52 Ala. 14. When rule of "error without injury” does not apply.-Williams's case, 47 Ala. 659; Carson's case, 50 Ala. 135. When not applied in murder.-Mitchell's case, 60 Ala. 26. Contents of bill of exceptions; what sufficient recitals; should not be too voluminous; only material matters to be stated.-Smith's case, 68 Ala. 429. Bill construed most strongly against exceptor.-Powell's case, 25 Ala. 21. See Leyman's case, 47 Ala. 686. When there is conflict between judgment-entry and bill of exceptions, latter will control.-Reynolds's case, 68 Ala. 502. Judge not bound to sign bill, unless matter wherein court is supposed to err is made intelligible. Strawbridge's case, 48 Ala. 308; Ex parte Mayfield, 63 Ala. 203. Motion to establish bill of exceptions.-Judge's case, 58 Ala. 402. See ex parte Mayfield, 63 Ala. 203. Solicitor alone can consent to signing after adjournment of court.-Ex parte Mayfield, 63 Ala. 203. Bill of exceptions taken on 20th of July, 1871, and signed 18th of following December in vacation, under agreement, etc., is valid.-Stephens's case, 47 Ala. 696. Must affirmatively appear to have been signed in time prescribed.-Ib. Where court adjourned at midnight, Saturday, bill signed next morning not considered part of record; when taken and signed as required by law, becomes part of the record.-Williams's case, 47 Ala. 659; Bryant's case, 36 Ala. 270. Mandamus to compel signing.-Etheridge v. Hall, 7 Port. 47; Ex parte Huckabee, 71 Ala. 427. General charge of the court; power of court to state evidence.-Tidwell's case, 70 Ala. 33. How should present the case.-Ib. Requisites of general charge.-Martin's case, 47 Ala. 564; Judge's case, 58 Ala. 407; Evans's case, 62 Ala. 6; Woodbury's case, 69 Ala. 242; Jackson's case, Ib. 250. May read extracts from reported decisions.-Holley's case, 75 Ala. 14. If separable into two disconnected propositions, when erroneous.-Martin's case, 47 Ala. 564. Should charge on different aspects of the case.-Smith's case, 68 Ala. 424. Should not need explanation.-Wicks's case, 44 Ala. 398. Nor be upon irrelevant evidence.-DePhue's case, Ib. 32. May state a conflict in evidence.-Charles's case, 49 Ala. 332. May charge as to the evil consequences of the offense.-Weed's case, 55 Ala. 13; Shorter's case, 63 Ala. 130. Charge on the effect of the evidence, to convict or acquit; cannot be given ex mero motu.-Edgar's case, 43 Ala. 312; Beaseley's case, 50 Ala. 149; Foster's case, 47 Ala. 643. See Davidson's case, 63 Ala. 432. Nor if there is any material conflict in the evidence.-Allman v. Gann, 29 Ala. 240; Williams's case, 47 Ala. 659; Sanders's case, 58 Ala. 371. Nor when the evidence is circumstantial, or any material fact is to be inferred, and not a legal presumption from it.-Perkins's case, 50 Ala. 154; Sims's case, 43 Ala. 33; Sultzner's case, Ib. 24; Ward's case, 37 Ala. 158; Morgan's case, 33 Ala. 413; Easterling's case, 30 Ala. 46; Oliver's case, 17 Ala. 587; Weil's case, 52 Ala. 19. Nor where the evidence only tends to prove the case. Carter's case, 44 Ala. 29. When should give such charge for defendant. Green's case, 68 Ala. 539. When for the state.-McInnis's case, 51 Ala. 23. Charges asked by parties; if the charge states correct law, and is not abstract, it must be given.-Carson's case, 50 Ala. 135; Williams's case, 47 Ala.

659; Eiland's case, 52 Ala. 322; Edgar's case, 43 Ala. 45. Must be given or refused without qualification.-Edgar's case, 43 Ala. 45; Eiland's case, 52 Ala. 322; Clifton's case, 73 Ala. 473; Rice's case, 47 Ala. 38. If it requires explanation to prevent misleading, may be refused.-Dotson's case, 62 Ala. 141; Farrish's case, 63 Ala. 164; Duval's case, Ib. 12. But the statute does not deprive the court of the right to simplify or explain charges tending to mislead the jury.-Morris's case, 25 Ala. 57; Eiland's case, 52 Ala. 322; Turbeville's case, 40 Ala. 715; Hogg's case, 52 Ala. 2. If charge merely tends to mislead, party objecting should ask explanatory charges.-Evans's case, 62 Ala. 6; Eiland's case, 52 Ala. 322; Diggs's case, 49 Ala. 311; Scully's case, 39 Ala. 240; Wills's case, 74 Ala. 21; Williams's case, Ib. 18. Charges to be construed in connection with the general charge and other charges given.-Cunningham's case, 73 Ala. 51; Scott's case, 37 Ala. 117. Statute applies only to written charges.-Warren's case, 46 Ala. 549; Jacobson's case, 55 Ala. 151; Richardson's case, 54 Ala. 158. Record need not show charges indorsed "given" or "refused"; when presumed. Allen's case, 74 Ala. 557. When charge presumed to have been in writing; when made part of record; when not.-Little's case, 58 Ala. 265. Formerly, where there was, by bill of exceptions, no question of law reserved for review, appeal was dismissed.--Howell's case, 110 Ala. 23; Bond's case, 103 Ala. 90. Judgment as follows: "Guilty, fined $50.00, judgment confessed," will not support appeal.-Wright's case, 103 Ala. 95; Nichol's case, 100 Ala. 23. Defendant cannot be discharged on habeas corpus because transcript for appeal is not filed, before time has expired for signing bill of exceptions.-Ex parte Cameron, 81 Ala. 87. If question does not distinctly appear of record, it must be reserved by bill of exceptions-Bolling's case, 78 Ala. 469. Bill of exceptions is not part of record, and parts of record shown by it alone will not be reviewed.-Diggs's case, 77 Ala. 68. Rulings on demurrer cannot be shown by bill of exceptions only.-Powell's case, 89 Ala. 172. Appellate court will not correct error in sentence, even by agreement or consent.-Herrington's case, 87 Ala. 1; Zaner's case, 90 Ala. 657. Sentence for longer time than allowed by law for costs will be corrected on appeal.-Johnson's case, 94 Ala. 35. Original papers not sent up by order of judge will not be considered on appeal.-Gardner's case, 96 Ala. 12. Judgment-entry controls bill of exceptions.-Childs's case, 97 Ala. 49. Conviction without plea is erroneous-record must affirmatively show plea.-Childs's case, 97 Ala. 49; Bowers's case, 98 Ala. 83; Jackson's case, 91 Ala. 55. Presumptions are indulged in favor of lower court's rulings. Ryan's case, 100 Ala. 105; Jackson's case, 97 Ala. 5; Garrett's case, 97 Ala. 18. Motion in arrest of judgment founded on bill of exceptions only will not be reviewed.-Walker's case, 91 Ala. 76. Errors as to costs only will be corrected on appeal.-Bazell's case, 89 Ala. 14. Defective transcripts may be disallowed. Foster's case, 88 Ala. 182. Where the lower court tries the facts, its finding thereon will not be revised on appeal.-Wynn's case, 87 Ala. 137; Boyd's case, 88 Ala. 170. But if evidence is without conflict, it may.-Giles's case, 88 Ala. 230. What orders of the court in the trial of felonies must appear of record, and what not.-Washington's case, 81 Ala. 35. Refusal of motion for new trial not revisable on appeal.--Johnson's case, 87 Ala. 39; Cooper's case, 88 Ala. 107; Daniel's case, 88 Ala. 220; Jolly's case, 94 Ala. 19; Reeves's case, 95 Ala. 31; Hawthorn's case, 100 Ala. 26; Knight's case, 103 Ala. 48; Lowry's case, Ib. 50; Jones's case, 104 Ala. 30. Application for continuance not revisable on appeal, unless gross abuse.-Davis's case, 92 Ala. 20. Objections to indictment for misnomer or like cannot be considered for first time on appeal.-Welsh's case, 96 Ala. 92. See also note to section 612.

4313. Defendant may appeal from judgment of conviction.-Any person convicted of a criminal offense in the circuit court, or other court from which an appeal lies directly to the supreme court, may appeal from the judgment of conviction to the supreme court.

Does not lie until after final judgment on verdict; dismissed if prematurely taken.-Gore's case, 58 Ala. 391; Lee's case, 52 Ala. 321; Thomason's case, 70 Ala. 20. See Reece's case, Minor, 266; Harkins's case, 6 Ala. 57. Nor will appeal lie while motion for new trial pending.-Overton's case, 60 Ala. 73. Nor from order holding accused to answer an indictment.-May's case, 55 Ala. 164. Nor when defendant escaped; proceedings in such case.-Warwick's case, 73 Ala. 486 (overruling Parsons's case, 22 Ala. 50). All legitimate presumptions indulged in favor of primary court.-Childs's case, 58 Ala. 349; Mack's case, 63 Ala. 138; Green's case, 73 Ala. 26. When case stricken from docket of supreme court for want of jurisdiction.-Brigman's case, 46 Ala. 72. When decisions of United States supreme court binding.-Green's case, 73 Ala. 26. Void judgment will not support an appeal.-Howell's case, 110 Ala. 23; Bond's case, 103 Ala. 90; Wright's case, 103 Ala. 95; Nichol's case, 100 Ala. 23. Formerly, when no question of law had been reserved, revision of judgment could be obtained only by writ of error.-Ex parte Knight, 61 Ala. 382; Taylor's case, 112 Ala. 69.

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