dissection, or sale, removes the dead body of any human being from its place of interment, must, on conviction, be fined not less than one hundred, nor 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 72.)

4645 (4024) (4194) (3607) (66). Same; exception as to physicians and surgeons.-Licensed physicians and surgeons, to whom the bodies of criminals executed for capital offenses are delivered pursuant to law, or to whom the bodies of other persons are delivered by or with the consent of their relatives, are not within the provisions of the preceding section.

4646 (4025) (4195) (3608) (67). Buying such dead bodies.-Any person, who purchases or receives from another the dead body of any human being, knowing that it was disinterred contrary to law, must, on conviction, be fined not less than one hundred, nor more than five hundred dollars.

4647 (4026) (4196) (3609) (68). Violating grave with intent to steal or remove dead body, etc.-Any person, who opens any place of interment, with intent to remove the dead body of any human. being for the purpose of selling or dissecting it, or with intent to steal the coffin, or any part thereof, or the vestments, or any other article interred with the body, or for the purpose of obtaining money or any thing of value from the relatives or friends of the deceased for the return of the body, or for malice, revenge, or ill will towards the deceased, or his or her friends, must, on conviction, be imprisoned in the penitentiary for not less than one, nor more than five years.

4648 (4027) (4197) (3610) (69). Mutilating dead bodies.-Any person, who wantonly mutilates the dead body of any human being, 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 one year; but the provisions of this section do not apply to dissections by physicians and surgeons.

4649 (4028) (4198) (3611) (70). Defacing tombstone, trees, shrubbery, etc.-Any person, who willfully or maliciously injures, defaces, removes, or destroys any tomb, monument, gravestone, or other memorial of the dead, or any fence or inclosure about any tomb, monument, gravestone, or memorial, or who willfully destroys, removes, cuts, breaks, or injures any tree, shrub, or plant, within such inclosure, must, on conviction, be fined not less than one hundred, nor 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 one year.

CHAPTER 145.

DEFINITIONS. 4650-4652.

4650 (3699) (4094) (3540) (1). Public offenses defined.-A public offense is an act or omission forbidden by law, and punishable as provided in this Code.

4651 (3700) (4097) (3543) (4). What penal acts or omissions not public offenses.-Acts or omissions to which a pecuniary penalty is attached, recoverable by action by a person for his own use, or for the use, in whole or in part, of the state, or of a county, or corporation, are not public offenses within the meaning of this Code.

4652 (3701) (4095, 4096) (3541, 3542) (2, 3). Felonies and misdemeanors defined.-A felony, within the meaning of this Code, is a public offense which may be punished by death, or by imprisonment in the penitentiary; all other public offenses are called misde

meanors.

Section construed as to felonies.-Clifton's case, 73 Ala. 473. Misdemeanor defined.-Hunter's case, 67 Ala. 83. Attempt to commit misdemeanor or felony is misdemeanor.-Wolf's case, 41 Ala. 412; Berdeaux v. Davis, 58 Ala. 611.

CHAPTER 146.

DISTURBING FEMALES, RELIGIOUS WORSHIP, AND SCHOOL

ASSEMBLIES. 4653-4655.

4653 (4032) (4200) (3613) (72). Disturbing women at public assembly, etc.-Any person, who, by rude or indecent behavior, or by profane or obscene language, willfully disturbs any woman at a public assembly, met for instruction or recreation, or in a railroadcar, steamboat, or in any other public conveyance, or at a depot, landing, or other place frequented by the traveling public, must, on conviction, be fined not more than two 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 37.)

The indictment must pursue the words of the statute, or the Code form, or aver every material constituent of the offense except venue and time.-Smith's case, 63 Ala. 55. Engaging in a fight does not necessarily render accused guilty of disturbing women; conduct must be rough, uncivil or offensive. Reeves's case, 96 Ala. 33.

4654 (4033) (4199) (3612) (71). Disturbing religious worship. Any person, who willfully interrupts or disturbs any assemblage of people met for religious worship, by noise, profane discourse, rude or indecent behavior, or any other act, at or near the place of worship, must, on conviction, be fined not less than twenty, nor more than two 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 38.)

Act causing disturbance must be willful or intentional; not sufficient if done recklessly or carelessly-Harrison's case, 37 Ala. 154; Brown's case, 46 Ala. 175; Lancaster's case, 53 Ala. 398. Natural tendency of act must be to disturb some, if only one, of the worshipers.—Lancaster's case, 53 Ala. 398. Sufficient if disturbance made while people assembling or dispersing.-Kinney's case, 38 Ala. 224; Lancaster's case, supra. Evidence of previous bad character as disturber of public worship not admissible by state, except in rebuttal of good character.-Harrison's case, 37 Ala. 154; Brown's case, 46 Ala. 175. Evidence that others disturbed congregation, without objection by the members, inadmissible.-Harrison's case, supra. Permission to speak no excuse for violent and insulting discourse, though not called to order.-Lancaster's case, 53 Ala. 398. Declarations of defendant while going to church, "I am going to stay till I get satisfaction," admissible.-Price's case, 107 Ala. 161. Charge requesting acquittal if defendant did what he did heedlessly or recklessly that is, carelessly-is properly refused.-Johnson's case, 92 Ala. 82 (explaining Harrison's case, 37 Ála. 154). Witness cannot testify that he was disturbed-he must state the facts.-Morris's case, 84 Ala. 457. Every sect or denomination of religionists is the arbiter of its own doctrinal tenets -questions of orthodoxy or heterodoxy are to be decided by the church judicatories, without appeal to civil courts.-Ib. A majority faction of a church are not guilty of disturbing religious worship by remonstrating against conduct of minority faction about church differences.-Ib. Wearing a false mustache in church which causes laughter will support a conviction. Williams's case, 83 Ala. 68. The presumption of intentional or willful disturbance may be rebutted by lawful excuse, but not by proof of a secret intention.-Ib. A conviction may be had on proof that defendant willfully and intentionally engaged in a fight.-Goulding's case, 82 Ala. 48. Purpose or intent to disturb is not necessary, but the doing of an act, the natural consequence of which is to disturb, and which does disturb, is sufficient.-Salter's case, 99 Ala. 207, qualifying and limiting Harrison's case, 37 Ala. 154.

4655 (4034). Disturbing people met for school purposes or holiday. Any person, who willfully disturbs any school, or other assembly of people, met for school purposes, or for amusement or recreation on a holiday for a school, must, on conviction, be fined not less than five, nor more than fifty dollars.

CHAPTER 147.

DRUNKENNESS. 4656.

ed Feb. 28, 1889, p. 92.

4656 (4035). Appearing in public or at private residence while As amend drunk or intoxicated.-Any person, who, while intoxicated or drunk, appears in any public place where one or more persons are present, or at or within the curtilage of any private residence, not his own, where one or more persons are present, and manifests a drunken condition by boisterous or indecent conduct, or loud and profane discourse, must, on conviction, be fined not less than five, nor more than one hundred dollars, to be paid in money only. "Rude or indecent behavior" defined.-Reeves's case, 96 Ala. 33.

CHAPTER 148.

DUELING. 4657, 4658.

4657 (3767) (4104) (3551) (11). Challenge to fight duel.—Any person, who gives, accepts, or knowingly carries a challenge, in

writing or otherwise, to fight in single combat, with any deadly weapon, either in or out of this state, must be punished, on conviction, by imprisonment in the penitentiary for two years. (Form 27.) Ivey's case, 12 Ala. 276.

4658 (3768) (4105) (3552) (12). Publishing another as a coward for not fighting or accepting challenge to fight.-Any person, who, in any newspaper, handbill, or other advertisement, written or printed, publishes or proclaims another person as a coward, or uses any other opprobrious or abusive language, for not accepting a challenge to fight a duel, or for not fighting a duel, must be punished, on conviction, by a fine of not less than two hundred, nor more than five hundred dollars, and by imprisonment in the county jail, or hard labor for the county, for not less than six, nor more than twelve months.

CHAPTER 149.

EMBEZZLEMENT AND LIKE OFFENSES. 4659-4673.

4659 (3795) (4377) (3717) (171). Embezzlement by officer, clerk, agent, servant, or apprentice.-Any officer, agent, or clerk of any incorporated company, or municipal corporation, or clerk, agent, servant, or apprentice of any private person or persons, who embezzles or fraudulently converts to his own use, or to the use of another, or fraudulently secretes with intent to convert to his own use, or to the use of another, any money or property which has come into his possession by virtue of his office or employment, must be punished, on conviction, as if he had stolen it.* (Form 40.)

This section (and sections 4660 and 4661) embraces some acts which were larceny at common law, as well as acts which were breaches of trust. - Insurance Co. v. Tunstall, 72 Ala. 142. When embezzlement under this section a felony and when a misdemeanor.-Washington's case, 72 Ala. 272. The gist of this offense.-Ib. 276. A wrongful conversion is an unauthorized assumption and exercise of the right of ownership over goods and personal chattels belonging to another, to the alteration of their condition, or the exclusion of the owner's rights.-Noble's case, 59 Ala. 79. Who is an agent within the meaning of the statute.-Hinderer's case, 38 Ala. 415; Pullen's case, 78 Ala. 31. Wife may be agent without husband's consent.-Ib. Statute not intended to convert common-law larceny into embezzlement.-Holbrook's case, 107 Ala. 154; Washington's case, 106 Ala. 5. Person having bare custody of goods of another may commit larceny of them.—Ib. Mail-rider not the agent of sender of letter.-Brewer's case, 83 Ala. 113. Non-transferable labor tickets or checks not subject of embezzlement by payee.-St. Clair's case, 100 Ala. 61. Animus furandi necessary.-Morrisette's case, 77 Ala. 71; Morningstar's case, 55 Ala. 148. Three things must coexist: (1) Accused must be agent; (2) property must come into his hands by reason of agency; (3) he must have converted or secreted with intent to convert.-Pullam's case, 78 Ala. 31. Evidence.-Lowenthal's case, 32 Ala. 589; Washington's case, 72 Ala. 272. Proof of failure to account for funds similarly received.-Lang's case, 97 Ala. 41; Stanley's case, 88 Ala. 154. Proof that defendant procured cotton receipt to be issued in his son's name, which he afterwards delivered to the owner, will not support conviction.-Penney's case, 88 Ala. 105. Indictment should allege *As amended by joint committee.

defendant to be agent, or servant, etc., of named principal; and it is well, though not necessary, to allege ownership of property.-Washington's case, 72 Ala. 272. May be joined with larceny in separate count.-May's case, 30 Ala. 32; Butler's case, 91 Ala. 87. Election in such case not required unless it appears that the different counts are founded on separate transactions.-Butler's case, supra; May's case, supra. Sufficiency of description of articles embezzled. Ib. (Money); Gady's case, 83 Ala. 51; Huffman's case, 89 Ala. 33. Code form sufficient.-May's case, 30 Ala. 32; Lowenthal's case, 32 Ala. 589; Lang's case, 97 Ala. 41.

4660 (3796) (4383) (3719) (173). Embezzlement or fraudulent secretion by officer, etc., of incorporated bank.-Any officer, agent, clerk, or servant of any bank incorporated under any law of this state, who embezzles or fraudulently converts to his own use, or fraudulently secretes with intent to convert to his own use, any money, property, or effects belonging to, or in the possession of such. bank, or deposited therein, must be punished, on conviction, as if he had stolen it. (Form 40.)

Indictment alleging the embezzlement of money is not sustained on proof of conversion of a check.-Carr's case, 104 Ala. 43. Indictment under Code form, for embezzlement of deposits of a bank, is sufficient to authorize conviction for the conversion of money of the bank, or on deposit therein, whether general or special, and the owner need not be averred.-Reeves's case. 95 Ala. 31. The possession and control of accused need not be exclusive of other officers of the bank, and it is immaterial whether his acts are open or secret.-Ib. If converted under guise of fraudulent loan, with consent of other officers of bank, it would be no defense.-Ib. It is permissible to show other fraudulent transactions of the bank than the one on trial, of which the defendant must have had knowledge.-Ib. See note to preceding section.

Feb. 28,

4661 (3797) (4384) (3720) (174). Embezzlement or fraudulent 1889, p. 68. secretion by banker, factor, attorney, or other agent.-Any private banker, commission merchant, factor, broker, attorney, bailee, or other agent, who embezzles, or fraudulently converts to his own use, or fraudulently secretes with intent to convert to his own use, any money, property, or effects deposited with him, or which have come into his possession by virtue of any bailment for any purpose, or the proceeds of any property sold by him for another, must be punished, on conviction, as if he had stolen it.

See note to section 4659. This section applies only to bailments in which the parties stand to each other in a fiduciary relation, the bailee having the possession wholly and exclusively for the benefit of the bailor, and not against hirer of domestic animal, who sells animal during term of bailment.-Watson's case, 70 Ala. 13 (cured by amendment). Defendant having received a horse to keep till it got well, is guilty of embezzlement if he sell horse without owner's consent.-Butler's case, 91 Ala. 87. Where bailor and bailee jointly interested in property not within the statute.-Lang's case, 97 Ala. 41 (cured by amendment). Allegation that defendant was a private banker sustained by proof that he was member of partnership doing private banking business. Carr's case. 104 Ala. 43.

4662 (3798) (4379) (3718) (172). Embezzlement by common carrier.-Any common carrier or other person, to whom any money or property has been delivered to be carried for hire, and who embezzles or fraudulently converts to his own use, or fraudulently secretes with intent to convert to his own use, such money or property, or any part thereof, must be punished, on conviction, as if he had stolen it.

4663 (3799) (4381). Embezzlement by county superintendent of education.-Any county superintendent of education, to whom any money or property has been delivered as county superintendent