able offense, the grand jury can receive no other evidence than is given by witnesses before them, or furnished by legal documentary evidence; and any witness may be examined and compelled to testify as to any offense within his knowledge.

Objection to indictment found without proper evidence and returned by less than twelve jurors, available by motion to quash or strike from files, not by plea.-Sparrenberger's case, 53 Ala. 481; Perkins's case, 66 Ala. 457. See Washington's case, 63 Ala. 189. What not legal documentary evidence; no inquiry allowed as to sufficiency of legal evidence.-Sparrenberger's case, supra. If competent witness examined before grand jury, such motion cannot be entertained.-Washington's case, 63 Ala. 189.

5037 (4351) (4780) (4107) (557). When juror may be required to disclose testimony.-A grand juror may be required by any court. to disclose the testimony of any witness examined before the grand jury, for the purpose of ascertaining whether it is consistent with the testimony given by the witness before the court, or on a charge of perjury against him.

Pellum's case, 89 Ala. 28.

5038 (4352) (4769) (4096) (546). Indictment discretionary in misdemeanors, etc.-The grand jury are not bound to find an indictment for any misdemeanor, where no prosecutor appears, unless twelve of their number think it necessary for the public good.

What is meant by "prosecutor."-Blackman's case, 98 Ala. 77.

5039 (4353) (4777) (4104) (554). Indictment; concurrence of twelve jurors necessary; how indorsed.-The concurrence of at least twelve grand jurors is necessary to find an indictment; and when so found it must be indorsed "a true bill," and the indorsement signed by the foreman.

Immaterial variance between name (Hutcheson) of foreman, and name (Hutchinson) indorsed.-Steadman's case, 7 Port. 496. Variance immaterial, if idem sonans.--Jackson's case, 74 Ala. 26. Also where it is J. H. Karter on indictment, and John H. Carter in minute entry.—McDaniel's case, 76 Ala 1. Indorsement "true bill" essential.--Mose's case, 35 Ala. 421. Name of foreman signed by clerk of jury to indorsement "true bill" in presence, and by direction of foreman, reprehensible, but does not invalidate indictment.--Benson's case, 68 Ala. 544. Indorsement by foreman and filing by clerk sufficient evidence of validity of indictment.-Hubbard's case, 72 Ala. 164. Court takes judicial notice of term at which indictment returned and filed.-Overton's case, 60 Ala. 73. What shown to be sufficient compliance with statute as to indorsement, presentation, and filing of indictment-Wesley's case, 52 Ala. 182; McCuller's case, 49 Ala. 39; McKee's case, 82 Ala. 32. Examination and refusal to find bill cannot affect power and action of succeeding grand jury.--Nicholson's case, 72 Ala. 178. Clerk's indorsement not necessary to validity of indictment.--Stanley's case, 88 Ala. 154.

5040 (4354) (4778) (4105) (555). Indorsement of prosecutor's name, etc.—If a prosecutor appears, his name must be indorsed by the foreman on the indictment; and if no prosecutor appears, the words "no prosecutor' must be indorsed thereon.

These indorsements merely directory, and their omission will not invalidate the indictment.-Hughes's case, 1 Ala. 655. See Ashwood's case, 63 Ala. 120. What is meant by "prosecutor."--Blackman's case, 98 Ala. 77.

5041 (4355) (4779) (4106) (556). Liability of prosecutor and foreman for costs.-When the indictment is for a misdemeanor, and the court is of opinion that the prosecution is frivolous or malicious, the prosecutor is liable for the costs; and if the foreman of

the grand jury fails to make the indorsement required of him by the last preceding section, he is liable for the costs as if he were the prosecutor.

Prosecutor can be taxed for costs only in misdemeanors; and record must show that prosecution appeared frivolous or malicious.--Burns's case, 5 Ala. 227; Tuck's case, 8 Ala. 664.

5042 (4356) (4770) (4097) (547). Juror must disclose offenses known to him.-If any grand juror knows, or has reason to believe, that a public offense has been committed, which may be indicted and tried in that county, it is his duty to disclose the same to his fellowjurors, who must thereupon investigate it.

5043 (4357) (4771) (4098) (548). Juror must withdraw when interested. A grand juror must not be present at, or take any part in the deliberations of his fellow-jurors respecting any public offense with which he is charged, or which was committed against his person or property, or when he is a prosecutor, or when he is connected by blood or marriage with the person charged.

Grand jury cannot be called, and required to expurgate themselves of any supposed interest or bias, at the instance of one in jail, and expecting an indictment to be preferred against him.-Clarissa's case, 11 Ala. 57. Objection made by plea.-Ib. 57.

5044 (4358) (4772) (4099) (549). Deficiency in such case; how supplied.-If, by reason of the provisions of the preceding section, the number of grand jurors is reduced below thirteen in the investigation of any matter, the court must supply the deficiency from the bystanders; and the persons so placed on the grand jury must serve only during such investigation.

5045 (4359) (4775) (4102) (552). Attendance of solicitor.—The solicitor must attend before the grand jury when required by them, and he may do so whenever he sees fit, for the purpose of examining witnesses in their presence, or giving them legal advice as to any matter connected with their duties, and he may appear before them at any time to give information as to any matter cognizable by them; but he must not be present at the expression of their opinions, or the giving of their votes on any matter before them.

An attorney is not authorized to go before the grand jury at request of the solicitor and perform his duties; yet indictment, so found, should not be quashed because of such unauthorized appearance of the attorney.-Blevins's case, 68 Ala. 92.

ARTICLE 9.

PROCEEDINGS AGAINST DEFAULTING JURORS.

1887, p. 151,

5046. Defaulting juror punished for contempt; proceedings. Feb. 28, If any person summoned as a grand or petit juror shall fail to obey 8. such summons, without good excuse to be determined by the court, he shall be deemed guilty of a contempt of court; and if no sufficient excuse be rendered for him at the time of his default, a rule shall issue to him to show cause why he shall not be adjudged guilty of such contempt and punished accordingly; and if he shall fail at.

the next term after the service of such notice to render such excuse, he shall be fined by the court not more than one hundred dollars, and may be imprisoned in the county jail for not more than ten days.

As to proceedings on scire facias, see Pomeroy's case, 40 Ala. 63; Grund's case, Ib. 709; Hatch's case, Ib. 718; Hall's case, 15 Ala. 431; Craig's case, 12 Ala. 363; Ellison's case, 8 Ala. 273; Hinson's case, 4 Ala. 671; Hayter's case, 7 Port. 156; Lloyd's case, Minor, 34.

ARTICLE 10.

DISCLOSING INDICTMENT AND TESTIMONY GIVEN BEFORE GRAND JURY.

5047 (3969) (4134) (3577) (36). Disclosure of indictment by officer or grand juror.-Any judge, solicitor, clerk, or other officer of court, or any grand juror, who discloses the fact that an indictment has been found, before the defendant has been arrested, or has given bail for his appearance to answer thereto, must, on conviction, be fined not less 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 36.)

White's case, 44 Ala. 409.

5048 (3970) (4135) (3578) (37). Disclosure of testimony before grand jury by witness.-Any person who, having been a witness before the grand jury, discloses the name of the person about whom he testified, or any of the facts to which he testified, before the arrest of the person against whom he testified, or before such person has given bail for his appearance to answer the indictment or indictments found against him, must, on conviction, 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.

CHAPTER 167.

LARCENY AND LIKE OFFENSES. 5049-5062.

5049 (3789) (4358, 4359, 4360) (3706, 3707) (160, 161). Grand larceny. Any person, who steals any horse, mare, gelding, colt, filly, mule, jack, jenny, cow, or animal of the cow kind, or any part of any outstanding crop of corn or cotton of the value of five dollars or more; and any person, who steals any personal property of the value of five dollars or more from the person of another, or from or in any building on fire, or which was removed in consequence of an alarm of fire, or from or in any dwelling-house, or from or in any storehouse, warehouse, shop, railroad-car, steamboat, ship, vessel, or boat

used for carrying freight or passengers; and any person who steals. any personal property, other than herein before enumerated, of the value of twenty-five dollars, or more; and any person who knowingly, willfully, and without the consent of the owner thereof, enters upon the land of another and cuts and carries off any timber or rails of the value of twenty-five dollars, or more, with the intent to convert the same to his own use, is guilty of grand larceny, and, on conviction, must be imprisoned in the penitentiary for not less than one, nor more than ten years." (Form 52).

Larceny of outstanding crop; purpose of the statute.-Newsom's case, 107 Ala. 133. When crop becomes the subject of larceny.-Sullins's case, 53 Ala. 474. Unknown to the common law.-Greggs's case, 55 Ala. 116. Not the subject of petit larceny.-Johnson's case, 100 Ala. 55; Smitherman's case, 63 Ala. 24; Pinckard's case, 62 Ala. 167. Statute punishes what were mere trespasses at common law so far as outstanding crops are concerned.-Newsom's case, 107 Ala. 133. Significance of publicity.-Ib. Larceny of animals; stealing carcass under twenty-five dollars in value, is petit larceny.-Hunt's case, 55 Ala. 138. A "steer" is "an animal of the cow kind," within the statute.-Watson's case, 55 Ala. 150. A "heifer" is a "cow."-Parker's case, 39 Ala. 365. Larceny from or in a dwelling-house, storehouse, etc.; dwelling-house must be such wherein burglary may be committed; larceny from piazza not from a dwelling.-Henry's case, 39 Ala. 679. See Moore's case, 40 Ala. 49. Immaterial that thief was in house by invitation of the owner.-Point's case, 37 Ala. 148. Or that he was a servant.-Case's case, 26 Ala. 17. What constitutes a storehouse.-Jefferson's case, 100 Ala. 59. What a warehouse.-Lynch's case, 89 Ala. 18; Hagan's case, 52 Ala. 373. As to local jurisdiction, see Smith's case, 55 Ala. 59. Ownership must be proved as alleged.-Parmer's case, 41 Ala. 416; Thompson's case, 48 Ala. 165; Underwood's case, 72 Ala. 220. Not necessary to produce title-deeds to land.-Morningstar's case, 52 Ala. 405. When proof of possession sufficient.-Ib.; Morris's case, 84 Ala. 446; Patterson v. Kicker, 72 Ala. 406; Miller's case, 40 Ala. 54. Ownership of outstanding crop laid in personal representative.-Walker's case, 111 Ala. 29. When grown by husband on wife's land.-Johnson's case, 100 Ala. 55. Separate estate of wife. Rollins's case, 98 Ala. 79. Asportavit; the removal may be slight; mere power to remove not sufficient.-Molton's case, 105 Ala. 18; Thompson's case, 94 Ala. 535; Kemp's case, 89 Ala. 52; Frazier's case, 85 Ala. 17; Croom's case, 71 Ala. 14; Edmonds's case, 70 Ala. 8; Wolf's case, 41 Ala. 412. To take an animal by operating on its volition, assuming dominion over it, is enough.-Wisdom's case, 8 Port. 511. Tolling a hog.-Edmonds's case, 70 Ala. 8. In case of outstanding crop.-Lyons's case, 61 Ala. 224; Sullins's case, 53 Ala. 474. Servant having bare custody of property may commit larceny.-Holbrook's case, 107 Ala. 154; Oxford's case, 33 Ala. 416; Spivey's case, 26 Ala. 90; Crocheron's case, 86 Ala. 64; Washington's case, 106 Ala. 58. Obtaining possession by fraud with intent ab initio to steal.-Wilson's case, 1 Port. 118; Case's case, 26 Ala. 17; Frazier's case, 85 Ala. 17. Taking by joint tenants, tenants in common, or partners.-Bonham's case, 65 Ala. 456; McCall's case, 69 Ala. 227; Holcombe's case, Ib. 218; Jones's case, 76 Ala. 8. Taking one's own goods to charge bailee. Kirksey v. Fike, 29 Ala. 206; Holcombe's case, 69 Ala. 218. Knocking money out of owner's hand, but not getting it, is not larceny.-Thompson's case, 94 Ala. 535. Money paid by mistake.-Bailey's case, 58 Ala. 414; Levy's case, 79 Ala. 259. Larceny by finding.-Rountree's case, 58 Ala. 381; Griggs's case, Ib. 425; Weaver's case, 77 Ala. 26; Allen's case, 91 Ala. 19; Smith's case, 103 Ala. 40. Of lost goods when there are marks of identification, etc., pointing to owner. Allen's case, supra; Smith's case, 103 Ala. 40. Of goods merely mislaid.-Griggs's case, 58 Ala. 425; Allen's, supra. Of a stray horse.-Burger's case, 83 Ala. 36. Animus furandi, the intent to steal at the time of taking necessary ingredient of larceny.-Beckham's case, 100 Ala. 15; Crocheron's case, 86 Ala. 64; Weaver's case, 77 Ala. 26; Griggs's case, 58 Ala. 425; Rountree's case, Ib. 381; McMullen's case, 53 Ala. 531; Williams's case, 44 Ala. 396; Spivey's case, 26 Ala. 90; Hawkins's case, 8 Port. 461. Hence, not larceny to take property of another under honest belief of ownership.—Barnes's case, 103 Ala. 44; Bonham's case, 65 Ala. 456; Randle's case, 49 Ala. 14. Nor under bona fide claim of right. Morningstar's case, 55 Ala. 148. Need not be for sake of gain.-Williams's case, 52 Ala. 411. Taking with intent to fasten a fraudulent lien on property would be larcenous.-Fort's case, 82 Ala. 50. As to intent necessary where charge is larceny of outstanding crop.-Newsom's case, 107 Ala. 133. Felonious intent as affected by drunkenness.-Chatham's case, 92 Ala. 47. Significance of open

*As amended by joint committee.

taking.--Barnes's case, 103 Ala. 44; Johnson's case, 73 Ala. 523; Newsom's case, 107 Ala. 133; McMullen's case, 53 Ala. 531; Black's case, 83 Ala. 81. Recent unexplained possession.-Cooper's case, 87 Ala. 135; White's case, 72 Ala. 195; Underwood's case, Ib. 220; Henderson's case, 70 Ala. 23; Fuller's case, 48 Ala. 273; Martin's case, 104 Ala. 71; Malachi's case, 89 Ala. 134; Murray's case, 48 Ala. 675. Jur ymust say what weight is to be attached to fact of recent possession. Orr's case, 107 Ala. 35; Underwood's case, 72 Ala. 220. Possession of articles not named in indictment.-Grant's case, 55 Ala. 201. Question of being recent is generally for the jury.-White's case, 72 Ala. 195. Declarations of defendant explanatory of possession admissible when of the res gestæ. Williams's case, 105 Ála. 96; Henderson's case, 70 Ala. 23; Crawford's case, 44 Ala. 45; Allen's case, 71 Ala. 5; Allen's case, 73 Ala. 23; Cooper's case, 63 Ala. 80. Contradictory declarations.-Harrison's case, 55 Ala. 239. There must be other evidence of the corpus delicti before proof made of recent possession. Orr's case, 107 Ala. 35; Fuller's case, 48 Ala. 273. But this may be shown circumstantially.-Colquitt's case, 61 Ala. 48; Roberts's case, Ib. 401. Indictment for statutory grand larceny will not support a conviction for petit larceny. Stone's case, Ala. (22 So. Rep. 275) (overruling Bolling's case, 98 Ala. 80). Charge of larceny from a warehouse not supported by proof that it was from an open shed.-Lynch's case, 89 Ala. 18. Nor is larceny from a piazza larceny from a dwelling-house.-Henry's case, 39 Ala. 679. Indictment in Code form charging larceny “from” a storehouse supported by proof of larceny "in."-Bailey's case, 99 Ala. 143. Indictment for larceny of part of outstanding crop.-Smitherman's case, 63 Ala. 24; Harris's case. 100 Ala. 129; Newsom's case, 107 Ala. 133. Code forms.-Bailey's case, 99 Ala. 143; Bolling's case, 98 Ala. 80. Description of property must be proved as charged.-Morris's case, 97 Ala. 82. "One gold watch" a sufficient description.-Pfister's case, 84 Ala. 432. What a sufficient description of money.-Owens's case, 104 Ala. 18; Carden's case, 89 Ala. 130; Reed's case, 88 Ala. 36; Burney's case, 87 Ala. 80; Gady's case, 83 Ala. 51; Levy's case, 79 Ala. 259; Grant's case, 55 Ala. 201; DuBois's case, 50 Ala. 139; Croker's case, 47 Ala. 53; Chisolm's case, 45 Ala. 66; Sallie's case, 39 Ala. 691; Williams's case, 19 Ala. 15; Murphy's case, 6 Ala. 845. Allegation of value is necessary.-Grant's case, 55 Ala. 201; Williams's case, 44 Ala. 396; Wilson's case, 1 Port. 118. But not of United States coin and notes.-Duvall's case, 63 Ala. 12; Grant's case, 55 Ala. 201. Nor where statute fixes offense without reference to value.-Adams's case, 60 Ala. 52; Sheppard's case, 42 Ala. 531. But in such case there must be evidence of some value.-Lucas's case, 96 Ala. 51. Averment of aggregate value of several articles, sufficient.-Grant's case, 55 Ala. 201. A "heifer" is a "cow."-Parker's case, 39 Ala. 365. A "steer" is an "animal of the cow kind."-Watson's case, 55 Ala. 150. A "pig" is a "hog.” Washington's case, 58 Ala. 355. A "yearling" not a sufficient description. Stallenwerk's case, 55 Ala. 142. Indictment must allege name of owner, or that it is unknown.-Underwood's case, 72 Ala. 220. Sufficient to allege ownership in railroad company leaving goods for transportation.-Rountree's case. 58 Ala. 381. Ownership property laid in person having possession under claim of right.-Morningstar's case, 52 Ala. 405. But corn raised on plantation not properly laid as property of overseer.-Heygood's case, 59 Ala. 49. May be joined in different counts with burglary, embezzlement, receiving stolen property, and offenses of like character.-Örr's case, 107 Ala. 35. And in same count with burglary.-Ib.; Bowen's case, 106 Ala. 178; Gordon's case, 71 Ala. 315. Joinder with burglary, see note to section 4417. With receiving stolen goods, see note to section 5054. With false pretenses, see note to section 4729. When election necessary.-Orr's case, 107 Ala. 35; Black's case, 83 Ala. 81; Gordon's case, 71 Ala. 315; Bonham's case, 65 Ala. 456; Peacher's case, 61 Ala. 22. This section is modified and controlled by section 5412, so that if sentence be for one year only, it must be to hard labor for the county, or imprisonment in the county jail.-Ex parte Thomas, 113 Ala. 1.

5050 (3790) (4360, 4361) (3708) (162). Petit larceny.-Any person, who steals any part of any outstanding crop of corn or cotton, or any personal property under any other circumstances than are specified in the preceding section, if the value of the property is less than twenty-five dollars; and any person, who knowingly, willfully, and without the consent of the owner thereof, enters upon the land of another, and cuts and carries off any timber or rails, with intent to convert the same to his own use, if the value of the property is less than twenty-five dollars; or any person who steals a registered dog, is guilty of petit larceny, and, on conviction, must be impris