CHAPTER 172.

MALICIOUS MISCHIEF; INJURY AND CRUELTY TO ANIMALS.

5090-5094.

ed Dec. 12,

5090 (3869) (4408, 4420) (3733, 3738) (186, 191). Malicious in- As amendjury to animals or other article of value.-Any person, who unlaw- 1892, p. 183. fully and maliciously kills, disables, disfigures, destroys, or injures any animal, or article or commodity of value, the property of another, must, on conviction, be fined not less than twenty, 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; and so much of the fine as may be necessary to repair the injury or loss shall go to the party injured. (Form 59.)

Malice towards owner essential ingredient; else mere trespass.-Northcot's case, 43 Ala. 330; Hobson's case, 44 Ala. 380. Malice inferred from instrument used, and circumstances attending injury inflicted, etc.-Ib. 380; Hill's case, 43 Ala. 335. Malice to son of owner not sufficient.-Northcot's case, Ib. 330. Indictment must allege name of owner, or that it is unknown.-Pierce's case, 7 Ala. 728. Value need not be averred.-Caldwell's case, 49 Ala. 34. Alleging injury of two animals conjointly, proof must show that both were injured at same time; but otherwise, if charged in different counts or disjunctively in same count.-Burgess's case, 44 Ala. 190; Thomas's case, 111 Ala. 51. When injury to two mules, caused by two shots fired about three minutes apart, election not required.-Busby's case, 77 Ala. 66.

5091 (3870) (4409, 4410). Unlawful or wanton killing, disabling, etc., certain domestic animals.-Any person, who unlawfully or wantonly kills, disables, disfigures, destroys, or injures any horse, mare, gelding, colt, filly, mule, jack, jenny, bull, ox, cow, calf, heifer, hog, goat, or sheep, the property of another, must, on conviction, be fined not less than twice the value of the injury to the animal killed, disabled, disfigured, destroyed, or injured, 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; and one-half of the fine imposed shall go to the owner of the property.

Malice not necessary.-Johnson's case, 37 Ala. 457; Thompson's case, 67 Ala. 106; Tatum's case, 66 Ala. 465. Trespass to pursue and kill with dog animals in one's own field.-Thompson's case, 67 Ala. 106. Specific intent to kill, disable, or injure, unnecessary; sufficient if done unlawfully or wantonly.-Tatum's case, 66 Ala. 465. Indictment may aver ownership of property in different persons or names in different counts; when prosecutor put to an election. Bass's case, 63 Ala. 108. Value of animal killed no bearing on question of guilt vel non.-Ashworth's case, 63 Ala. 120. When an indictment should aver value of property injured.—Garner's case, 8 Port, 447. A witness having testified as to shooting on one day, and then on another, the prosecution is not limited to the first shooting, but may elect to proceed for the second.-Jackson's case, 95 Ala. 17. A tender of full compensation for injury to animal, made before prosecution commenced, is a bar.—Roe's case, 82 Ala. 68.

5092 (3871) (4411). Same; trial and conviction; mitigation or justification.-Upon the trial, the defendant may prove in mitigation or justification, as the jury may determine, that, at the time of the injury, the stock was trespassing upon a growing crop, inclosed by a lawful fence, or cultivated without a fence where stock

As amended Feb. 16,

laws prevail; and no conviction must be had, if it is shown that, before the commencement of the prosecution, compensation for the injury was made or tendered to the owner.

Name of prosecutor need not appear on indictment, nor the record show that complaint was made by owner; yet, on motion and proof quashed if not shown that was found on necessary complaint.-Ashworth's case, 63 Ala. 120. Judgment rendered for whole amount of fine, in favor of state for use of county as in other cases.-Bass's case, 63 Ala. 108. Justification under verbal license; if language ambiguous, left to jury to determine meaning of authority or license from owner to kill, etc.-Ashworth's case, 63 Ala. 120. Tender of compensation for the damage, what necessary.-Ib.; Roe's case, 82 Ala. 68. What necessary to be shown as a defense on ground of doing "damage to any growing crop."-Thompson's case, 67 Ala. 106.

5093 (3872). Cruelty to animals. Any person, who overrides, 1895, p.697 overdrives, overloads, drives when overloaded, tortures, torments, deprives of necessary sustenance, cruelly beats, mutilates, or cruelly kills, or causes or procures to be overridden, overdriven, overloaded, driven when overloaded, tortured, tormented, deprived of necessary sustenance, cruelly beaten, mutilated, or cruelly killed, any domestic animal, and whoever, having the charge or custody of any such animal, either as owner or otherwise, inflicts unnecessary cruelty upon the same, or fails to provide the same with proper food, drink or protection from the weather, or cruelly drives the same when unfit for labor, must, on conviction, be fined not less than ten, nor more than one hundred dollars; but this section shall not be construed as prohibiting the dehorning of cattle.

5094 (3873). Duty of law officer; lawful for any person to arrest; compensation; penalty. It is the duty of any officer of the law, county or municipal, and it is lawful for any other person, to arrest and take before a justice of the peace, any person violating the provisions of the preceding section, and shall, upon conviction of the person arrested, be entitled to the sum of two dollars, which shall be taxed as a part of the costs, and any officer herein named, who fails or neglects to arrest such offender, must, on conviction, be fined not less than ten dollars.

CHAPTER 173.

MAYHEM. 5095.

5095 (3735) (4312) (3669) (127). Mayhem defined.- Any person, who unlawfully, maliciously and intentionally cuts out or disables the tongue; puts out or destroys an eye; cuts, bites, or strikes off an ear; cuts, bites off, slits, mutilates, or destroys the nose or lip; or cuts, bites, tears, strikes off, or disables a limb, or member, of any other person, must, on conviction, be imprisoned in the penitentiary for not less than two, nor more than twenty years. (Form 62.)

Must be unlawfully, intentionally, and with malice.-Abram's case, 10 Ala. 928. Design or intent need not have been formed previous to conflict.-Simmons's case, 3 Ala. 497. What no defense; erroneous charges as to specific design. Molett's case, 49 Ala. 18. And on question of instruction on selfdefense, or animal nature prompting act.-Ib. Under joint indictment, one may be guilty of beating and the other of mayhem.--Absence's case, 4 Port. 397. Injury must be permanent.-Briley's case, 8 Port. 472. But there need not be an entire mutilation of the member, yet must be sufficient to disfigure. Abram's case, 10 Ala. 928. Where injury was by shooting, jury may look to character of wound to determine with what view gun was fired.-Eskridge's case, 25 Ala. 30.

CHAPTER 174.

MISCEGENATION. 5096, 5097.

5096 (4018) (4189) (3602) (61). Marriage, adultery and fornication between white persons and negroes.-If any white person and any negro, or the descendant of any negro, to the third generation, inclusive, though one ancestor of each generation was a white person, intermarry, or live in adultery or fornication with each. other, each of them must, on conviction, be imprisoned in the penitentiary for not less than two, nor more than seven years.

(Constitutionality of this section discussed.-Ellis's case, 42 Ala. 525; Burns's case, 48 Ala. 195; Ford's case, 53 Ala. 151; Pace's case, 69 Ala. 231; Green's case, 58 Ala. 190 (overruling Burns's case, 48 Ala. 195). Held not violative of fourteenth amendment to constitution of United States.-Pace's case, 69 Ala. 231. Power of state over marriage.-Green's case, 58 Ala. 190. Marriage between white and negro absolutely void.-Hoover's case, 59 Ala. 57. Sufficient indictment in Pace's case, 69 Ala. 231. Evidence that probate judge told parties they could lawfully marry, inadmissible.-Hoover's case, 59 Ala. 57. On failure to prove averments of race, etc., verdict may be for misdemeanor, which would bar subsequent prosecution for felony.-Bryant's case, 76 Ala. 33. Indictment sufficient which charges that B., a negro man, and L., a white woman, did intermarry, or live in adultery or fornication with each other.-Linton's case, 88 Ala. 216. The word "negro" includes "mulatto."-Ib. Character of the woman for chastity is not admissible as evidence.-Ib. A living together in adultery for one day is sufficient.-Ib. Profert of party not on trial.-Ib. That defendant was "foolishly fond of women" not admissible, though his general character be in issue.-Cauley's case, 92 Ala. 71.

5097 (4019) (4190) (3603) (62). Officer issuing license or performing marriage ceremony.-Any probate judge, who issues a license for the marriage of any persons who are prohibited by the preceding section from intermarrying, knowing that they are within the provisions of that section; and any justice of the peace, minister of the gospel, or other person by law authorized to solemnize the rites of matrimony, who performs a marriage ceremony for such persons, knowing that they are within the provisions of such section, must each, on conviction, be fined not less than one hundred, nor 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.

CHAPTER 175.

OFFICERS AND OFFICES, OFFENSES CONCERNING.

ARTICLE 1.-MISCONDUCT BY OFFICERS AND PERSONS CONCERNED IN THE ADMINISTRATION OF JUSTICE. 5098-5147.

2.-OFFENSES BY OFFICERS CONCERNED IN COLLECTING THE REVENUES

OF THE STATE. 5148-5151.

3.-BUYING, SELLING, ILLEGALLY ASSUMING AND WRONGFULLY HOLDING OFFICE. 5152-5159.

ARTICLE 1.

MISCONDUCT BY OFFICERS AND PERSONS CONCERNED IN THE ADMINISTRATION OF JUSTICE.

5098 (3921). Willful neglect of duty by jury commissioner or officer.-Any jury commissioner, or other officer, who willfully or negligently fails to discharge any duty required of him by law in the drawing or selecting of a juror or jury, or who draws or selects a juror or jury in any other manner or order than that prescribed by law, must, on conviction, be fined not less than fifty, nor more than one thousand dollars.

5099 (3922). Corruptly influencing jury commissioner or officer. Any person, who attempts, otherwise than by bribery, to influence any jury commissioner, or any other officer charged with the execution of any duty concerning the selecting, drawing, summoning impaneling, or organizing of jurors or juries, must, on conviction, 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 twelve months.

5100 (3923) (4766) (4093) (543). Drawing jury unfairly; penalty. Any person, who does any act calculated to affect the fair drawing of a jury, and with intent to affect the same, must, on conviction, be fined not less than two hundred, nor more than one thousand dollars, and may also be imprisoned in the county jail for not more than six months; and if such person is the judge of probate, sheriff, or clerk of the circuit or city court, or jury commissioner, or a member of a board of revenue, or a county commissioner, his office is thereby vacated, and must be filled as in other cases of vacancy, on such conviction being certified to the appointing power by the presiding judge or the clerk of the court in which it is had.

5101' (3924) (4121) (3565) (25). Stocking jury.-Any sheriff or other officer having a discretion in summoning jurors, who summons any person with intent to produce a result favorable to any party having a cause in the court in which such person is summoned, must, on conviction, be imprisoned in the penitentiary for not less than two, nor more than five years.

5102 (3925) (4123) (3570) (29). Same; connivance of sheriff at such offense.-Any sheriff, who connives at the commission of the offense prohibited by the preceding section, by any constable, bailiff, or deputy-sheriff, must, on conviction, be imprisoned in the penitentiary for not less than two, nor more than five years.

5103 (3926) (4154) (3593) (52). Extortion.-Any justice of the peace, clerk, sheriff, or other officer, who is by law authorized to receive fees for services rendered by him in his official capacity, and who knowingly takes a fee or fees for any service not actually rendered by him, or knowingly takes any greater fee or fees than are by law allowed for any services actually rendered by him, must, on conviction, be fined not less than twenty, 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 46.)

Collier's case, 55 Ala. 125; Cleaveland's case, 34 Ala. 254.

5104 (3927) (5022) (3539) (3068). Probate judge corruptly receiving illegal fees.-Any judge of probate, who corruptly receives any fee or item of costs not authorized by law, must, on conviction, be fined not less than one hundred, nor more than five hundred dollars; and the grand jury must present an indictment, if justified by the evidence. Upon such conviction, the office shall be vacated, and the fact of such conviction shall be certified to the governor by the presiding judge.

5105 (3931) (4170). Dealing in county claims by county officers. Any public officer, who, directly or indirectly, by himself or through another, purchases, deals, or traffics, in any manner whatever, in any claim payable out of the county treasury, or out of the fine and forfeiture fund of the county, must, on conviction, be fined for each offense not less than ten, nor more than fifty dollars; but nothing contained in this section prevents any officer from receiving in good faith any county claim in payment of a debt due him. This section. must be given in charge to the grand jury; and the solicitor is required to summon the county treasurer before the grand jury to give evidence against any one for a violation of this section.

The clerk in the office of the judge of probate is liable as an officer.-Scruggs's case, 111 Ala. 60. A grand-jury ticket is included.-Ib.

5106 (3933) (4156) (3594) (53). False certificate by officer. Any officer authorized to take proof or acknowledgment of any conveyance of property, real or personal, who, with intent to injure or defraud, or to enable any other person to injure or defraud, willfully certifies that any such conveyance was duly proved or acknowledged, when such proof or acknowledgment was not in fact made, or was not made on the day stated in such certificate, must, on conviction, be imprisoned in the penitentiary for not less than two, nor more than ten years.

5107 (3934) (4157) (3595) (54). Refusal of officer to take or certify proof or acknowledgment of deed, etc.-Any officer authorized by law to take and certify the proof or acknowledgment of any