imprisoned in the penitentiary for not less than two years, nor more than five years.

5190 (4709). When commanding officer may order troops to quell riot. If any portion of the militia or state troops, or person lawfully aiding them in the performance of any duty under the provisions of this article, are assaulted, attacked, or are in imminent. danger thereof, the commanding officer of such militia or state troops need not await any orders from any civil magistrate, but may at once proceed to quell such attack, and take all other needful steps for the safety of his command.

5191 (4710). Persons must disperse when hostile act committed by mob on military; penalty.-Whenever any shot is fired, or missile thrown at, against, or upon any body of state troops or militia, or upon any officer or member thereof, assembling or assembled for the performance of any duty under the provisions of this article, it shall forthwith be the duty of every person in the assemblage from which such shot is fired, or missile thrown, to immediately disperse and retire therefrom, without awaiting any order to do so; and any person knowing or having reason to believe, that a shot has been so fired, or missile thrown from any assemblage of which such person forms a part, or with which he is present, and failing, without lawful excuse, to retire immediately from such assemblage, is guilty of a misdemeanor, and must, on conviction, be imprisoned in the county jail for not less than one month, nor more than one year; and any person so remaining in such assemblage, after being duly commanded to disperse, is guilty of a felony, and must, on conviction, be imprisoned in the penitentiary for not less than one, nor more than two years. 5192 (4711). Power of civil or military officer to clear streets, etc.-Whenever any rout, riot, or mob, has occurred, or is progressing, or is so imminent that any portion of the militia or state troops is, or has been called out for the performance of any duty under the provisions of this article, it shall be lawful for the civil officer under whose orders the militia or state forces are acting, or the commanding officer of such militia or state troops, if it be deemed advisable in subduing or preventing such mob or riot, or the outbreak thereof, to prohibit all persons from occupying or passing on any street, road, or place in the vicinity of the rout, mob, or riot, or place where the same is threatened, or where the militia or state troops may be for the time being, and otherwise to regulate passage and occupancy of such streets and places; any person, after being duly informed of such prohibition or regulation, who willfully and intentionally, without any lawful excuse, attempts to go or remain on such street, road, or place, and fails to depart after being warned to do so, is guilty of a misdemeanor, and 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 not more than one hundred days; and, in such case, the officer in command of the troops or militia. may forthwith arrest persons so offending, and turn them over to some civil magistrate.

5193 (4712). Troops guarding jail or prisoner may prevent persons coming near; penalty against intruders.-The commanding officer of any body of militia or state troops, guarding any jail, public building, or other place, or escorting any prisoner, may, if he deem it advisable, prescribe a reasonable distance in the vicinity of such jail, public building, or other place, or escort of such prisoner, within which persons shall not come; and any person, knowingly and willfully, without lawful excuse, coming within such limits without the permission of such officer, and refusing to depart after being ordered to do so, shall be deemed guilty of a misdemeanor, and must, on conviction, be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than three hundred days; and any person, so coming and remaining in such limits in the nighttime, is guilty of a felony, and must, on conviction, be imprisoned in the penitentiary for not less than one, nor more than two years; and, in either case, it shall be the duty of the officer commanding such troops or militia forthwith to arrest persons thus offending, and turn them over to some civil magistrate.

5194 (4713). Report to governor, who may direct troops in all cases. Whenever any militia or state troops are ordered out by a civil magistrate, under the provisions of this article, without first obtaining an order from the governor, it shall be the duty of the civil magistrate, and also of the commander of such militia or state troops, to report the facts as soon as practicable to the governor; and in all cases the governor may direct such militia or state troops to perform their duties under his immediate orders.

5195 (4714). Authority of governor to order out military forces in aid of civil authorities; regulations.-Whenever there is any insurrection or outbreak of a formidable character, which has overawed, or threatens to overawe, the ordinary civil authorities, and the authorities in such county, town, or city have attempted and failed to quell the same by the use of the posse comitatus, or it is apparent that such attempt would be useless, the governor, on a certificate of such facts from any four conservators of the peace in such county, city, or town, or from any circuit judge, chancellor, probate judge, sheriff, or justice of the supreme court, shall immediately order out such portion of the state troops or militia as he may deem necessary to enforce the laws and preserve the peace; and the governor may, when the urgency is great, order out such troops without any certificate from either of the officers mentioned in this section; but in no case shall the governor keep in service, in any county, city, or town of the state, for more than ten days, any troops or militia, other than those raised in such county, except in time of invasion or actual insurrection, unless some justice of the supreme court, or circuit judge, or chancellor of the circuit or division of which such county forms a part, or four justices of the peace in such county, or the sheriff thereof, shall certify to him that the longer presence of such militia or troops is requisite to the proper enforcement of the law, or the preservation of the peace therein.

5196 (4715). Change of venue allowed when person aiding to suppress riot indicted.-Any civil or military officer, or member of the state troops or militia, or any person lawfully aiding them in the performance of any duty required under the provisions of this article, indicted or sued for any injury to person or property in endeavoring to perform such duty, shall have the right, and it is hereby made the duty of the court in which such indictment or suit is pending, upon the application of any person so indicted or sued, to remove the trial of the indictment or suit to some county free from exception, other than that in which the indictment was found or injury done.

5197 (4716). Military officer may require written instructions; discretion as to manner of executing orders.-Any officer, whose command is called out under the provisions of this article, and reporting to any civil magistrate, may require such magistrate to make such order in writing, and prescribe therein the outline of the duties required of him and his command, and may decline to obey such orders until put in writing; and while such commanding officer must obey all lawful commands of such magistrate, such military officer may use his discretion as to the manner of carrying out such orders, so long as he complies with their spirit.

CHAPTER 177.

PERJURY. 5198-5203.

5198 (3906) (4112, 4114) (3557, 3559) (17, 19). Perjury and subornation of perjury on trial for felony.-Any person, who willfully and corruptly swears or affirms falsely, or corruptly procures another to so swear or affirm, in regard to any material matter or thing, on the trial of any person under an indictment for felony, must, on conviction, be imprisoned in the penitentiary for not less than three, nor more than twenty years: (Form 67.)

See note to section 5200.

5199 (3908) (4813) (4139) (589). Indictment for perjury or subornation. In an indictment for perjury, or subornation of perjury, it is not necessary to set forth the pleadings, record, or proceedings, with which the false oath is connected, or the commission or authority of the court or person before whom the perjury. was committed: it is sufficient to state the substance of the proceedings, the name of the court or officer before whom the oath was taken, and that such court or officer had authority to administer it, with the necessary allegations of the falsity of the matter on which the perjury is assigned. (Forms 67, 68.)

Statute dispenses with many requirements of common-law indictments, but substance of proceedings must be set forth; and other averments necessary.-Jacobs's case, 61 Ala. 448. Forms in Code, and analogous forms sufficient; sufficient allegation of false testimony, or assignments of perjury; proof of one assignment sufficient.-Williams's case, 68 Ala. 551; Brown's case,

47 Ala. 47; Peterson's case, 74 Ala. 34; DeBernie's case, 19 Ala. 23; McMurry's case, 6 Ala. 324; Lea's case, 3 Ala. 602; Smith's case, 103 Ala. 57; McClerkin's case, 105 Ala. 107; Walker's case, 96 Ala. 53; Barnett's case, 89 Ala. 165; Hicks's case, 86 Ala. 30; Davis's case, 79 Ala. 20. Indictment charging perjury on trial of a person charged with burglary, must allege name of owner of house burglarized.-Davis's case, 89 Ala. 20. Indictment for perjury before grand jury must state name of party and act under investigation.-Banks's case, 78 Ala. 14.

5200 (3907) (4113, 4114) (3558, 3559) (18, 19). Perjury and subornation in other cases.-Any person, who willfully and corruptly swears or affirms falsely, or corruptly procures another to so swear or affirm, in regard to any material matter or thing, upon any oath or affirmation authorized by law, except on the trial of any person under an indictment for a felony, must, on conviction, be imprisoned in the penitentiary for not less than two, nor more than five years. (Form 68.)

A definition of perjury given in Hood's case, 44 Ala. 81. Oath must be willfully and corruptly false.-Ib.; Green's case, 41 Ala. 419. Effect of taking oath pursuant to advice of counsel.-Hood's case, 44 Ala. 81; Barnett's case, 89 Ala. 165. False oath or affidavit to superfluous or immaterial matter not perjury.-Gibson's case, 44 Ala. 17; Hood's case, Ib. 81; McMurry's case, 6 Ala. 324; Bank's case, 78 Ala. 14. Need not be immediately material; sufficient if it adds weight to, and has direct connection with facts that are material.-Williams's case, 68 Ala. 551; Jacobs's case, 61 Ala. 448. False oath to affidavit in detinue is perjury.-Jacobs's case, 61 Ala. 448. In affidavit for attachment.-Hood's case, 44 Ala. 81. On application for habeas corpus.-Gibson's case, 44 Ala. 17. Evidence of officer's authority to administer oath. Moore's case, 52 Ala. 424. Proceedings wherein the perjury was committed; what material variance.-Brown's case, 47 Ala. 47; Jacobs's case, 61 Ala. 448. Proof of substance of matter falsely sworn to, sufficient.-Taylor's case, 48 Ala. 157. Also of assignment of perjury.-Williams's case, 68 Ala. 551. Materiality of matter sworn to must appear.-Ib.; Floyd's case, 30 Ala. 511. Falsity of statement proved by two witnesses, or one witness and strong corroborating circumstances.-Williams's case, 68 Ala. 551; Peterson's case, 74 Ala. 34. Necessity and admissibility in evidence of original papers, record, indictment, etc.-McMurry's case, 6 Ala. 324; Williams's case, 68 Ala. 551. When there are several assignments of perjury, proof of any one will support conviction. Smith's case, 103 Ala. 57. Perjury may be predicated on oath administered by commissioner to take depositions who was appointed by a de facto deputy-register. Merlette's case, 100 Ala. 42. Perjury cannot be founded on oath administered by a de facto deputy-clerk.-Walker's case, 107 Ala. 5. If the oath be administered by the de facto deputy in the presence and with the consent of the duly authorized officer, it is the act of the officer himself.-Ib. Indictment charging perjury in falsely making affidavit for new trial in case of “G. vs. D.” is not supported by proof that it was in case of “G. et al. vs. D."-Walker's case, 96 Ala. 53. Indictment alleging false swearing, “being duly sworn by the clerk of said county," is not supported by proof that it was by clerk of city court McClerkin's case, 105 Ala. 107. A defendant charged with perjury in falsely swearing that his signature to a document was falsely obtained, cannot defend by proving that he made no such signature.-Barnett's case, 89 Ala. 165. Perjury cannot be predicated on void judicial proceeding, or on void affidavit. Collins's case, 78 Ala. 433. Perjury may be predicated on preliminary proceedings before justice of peace which are founded on coroner's inquest.-Boynton's case, 77 Ala. 29.

5201 (3909) (4287, 4288). Perjury of electors.-Any person, who willfully, corruptly and falsely takes the registration oath required by law of electors, or willfully, corruptly and falsely takes any oath required by law at any election, general or special, or state, county, or municipal, is guilty of perjury, and must, on conviction, be imprisoned in the penitentiary not less than two, nor more than five years.*

Moore's case, 52 Ala. 424.

*Section 3910 of the Code of 1886 was stricken out by joint committee.

5202 (3911). False oath by taxpayer.-Any person, who, having taken the oath required by law to be administered to him by the tax-assessor or his deputy, before proceeding to list property and other subjects for taxation, willfully and corruptly answers falsely any lawful question which such assessor or his deputy may put to him touching the return of property and other subjects of taxation, or willfully and corruptly makes a false return of the property and other subjects of taxation required by law to be by him returned for taxation, is guilty of perjury, and must, on conviction, be imprisoned in the penitentiary for not less than two, nor more than five years.

5203 (3912). Perjury by officer of state troops in making false oath claiming allowance.-Any commanding officer of any military company forming a part of the Alabama state troops, who willfully and corruptly makes any false oath touching any matter required by law to be contained in any statement made by him for the purpose of obtaining for such company any allowance provided by law, is guilty of perjury, and, on conviction, must be imprisoned in the penitentiary for not less than two, nor more than five years.

CHAPTER 178.

PRELIMINARY PROCEEDINGS.

ARTICLE 1.-COMPLAINT, DEPOSITIONS AND WARRANT OF ARREST. 5204-5208. 2.-BY WHOM, HOW AND WHEN ARRESTS MAY BE MADE. 5209-5223. 3.-DISCHARGE ON BAIL BEFORE OR WITHOUT PRELIMINARY EXAMINA

TION. 5224-5227.

4.-PRELIMINARY EXAMINATION AND ITS INCIDENTS. 5228-5247.

ARTICLE 1.

COMPLAINT, DEPOSITIONS AND WARRANT OF ARREST.

5204 (4255) (4647) (3977) (428). Definition of complaint.-The complaint is an allegation, made before a proper magistrate, that a person has been guilty of a designated public offense.

This and three succeeding sections apply only to preliminary proceedings before committing magistrates, and not to criminal prosecutions before the county court, and justices of the peace.-Sale's case, 68 Ala. 530. Technical accuracy not required in preliminary proceedings; what sufficient.-Brown's case, 63 Ala. 97; Rhodes v. King, 52 Ala. 272. Jurisdiction of justices and notaries ex officio justices extends to the entire county in preliminary proceedings.-Matthews's case, 96 Ala. 62; Ex parte Davis, 95 Ala. 9; Boynton's case, 77 Ala. 29.%

5205 (4256)*(4648) (3978)"(429). Plaintiff examined on oath; depositions reduced to writing, and subscribed.-Upon a complaint being made to any one of the magistrates specified in section