(r.c.c.)

Amended,

Dec. 13.

1900, p.

82. § 1.

7832. (5611) (3880) Trespass on state capitol grounds.Any person who turns a horse or other animal of any kind to graze upon the grounds of the state capitol, or any courthouse yard, must, on conviction, be fined not more than twenty dollars.

(Jan. 17, 1879, p. 201.)

7833. (5612) (3875) (4417, 4420) (3736, 3738) (189, 191) Trespass on lands by cutting down trees, etc.; severing and taking property from freehold.—Any person who willfully and maliciously commits any trespass on the lands of another, by cutting down or destroying any wood or timber growing thereon, or by severing from the freehold any produce thereof, or any property or thing thereto attached; or any person, who severs and carries away from the freehold any property or thing thereto attached under such circumstances as would render the trespass a larceny, if the thing severed and carried away were personal property, 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; and the fine goes to the injured party.

Once punishable by being publicly whipped.—Toulmin's Digest, p. 209, § 25. (Clay's Digest, p. 418, § 8; Jan. 26, 1877, p. 105.) Liability of telephone company. So. Bell Tel. Co. v. Allen, 109 Ala. 224 (19 So. 1). Ownership of trees in public streets, qualified and limited. When injury to trees in streets by telephone companies not a trespass.-So Bell Tel. Co. v. Allen, 109 Ala. 224 (19 So. 1). The act must be willful and malicious; certain facts examined and held not to justify inference of malice.-Pippen's case, 77 Ala. 81. See, also. Johnson's case, 61 Ala. 9; McCord's case, 79 Ala. 269; Langston's case. 96 Ala. 44 (11 So. 344).

7834. (5613) (3876) (4425) (3742) (195) Trespass by cutting down shade trees, shrubs, etc.-Any person who maliciously, or for the purpose of injuring an individual, or the public, cuts down, destroys, or injures any trees or shrubs, planted or preserved for shade or ornament in any public street or square, or in any yard or grounds, must, on conviction (unless the trees or shrubs cut down or injured belong to him), be fined not less than fifty 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 three months.

7835. (5614) (3878) (4414) Trespass by allowing stock to run at large under common fence.-Any one of several persons occupying or cultivating lands under a common fence who turns stock of any kind into such inclosure, or knowingly suffers such stock to go at large therein without the consent of all the persons owning or cultivating such lands, must, on conviction, be punished by a fine of not less than five nor more

than fifty dollars, and also the amount of damages inflicted by the stock, which damages shall be held as a part of the penalty imposed by the court, and shall go to the party injured.

(Feb. 28, 1889, p. 97; Mar. 8, 1876, p. 288, § 1.) Notice of election as to stock law, sufficiency of publication; liability of citizens of another county.-Hawthorne v. State, 116 Ala. 487 (22 So. 894); Mays's case, 89 Ala. 37 (8 So. 28); Cole's case, 72 Ala. 216. (Statute materially changed since these decisions.)

7836. (5615) (3879) (4415) Same; disposition of stock in default of payment of penalty.-Whenever a conviction shall be had under the preceding section, unless the full amount of the penalty is immediately paid, it shall be the duty of the sheriff, or other officer charged with the execution of the judgment of the court, to seize and hold the stock committing the trespass, and after giving five days' notice by posting at three or more public places in the neighborhood, to sell the same, and out of the proceeds to collect the amount of such penalty and costs; and the surplus shall be paid to the owner of such stock.

(Mar. 8, 1876, p. 288, § 2.)

7837. (5616) (3881) Trespass on lands, by cutting or boxing pine trees for turpentine.-Any person who, knowingly and willfully, and without the consent of the owner, enters upon the lands of any person or corporation, or upon the lands belonging to the state, and cuts, girdles, or boxes any pine tree for the purpose of obtaining crude turpentine, 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.

Setting Cases for Trial.

CHAPTER 301.

TRIAL AND ITS INCIDENTS. 7838-7842.

ARTICLE 1. SETTING CASES FOR TRIAL. 7838.

ARTICLE 2.

APPOINTING COUNSEL TO DEFEND, AND SERVING COPY OF VENIRE
AND INDICTMENT. 7839-7841.

ARTICLE 3. TRIAL; JOINT OR SEVERAL. 7842.

ARTICLE 1.

SETTING CASES FOR TRIAL. 7838.

7838. (5271) (4447) (4869) Cases set for particular days; exceptions. It is the duty of the clerk of the circuit or city court to set for trial all criminal cases in his court, except capital cases, and cases of parties in custody, for particular days; and no case so set shall be called for trial before such day.

(Feb. 8, 1877, p. 138, § 1.) Clerk has no authority to set capital cases, and any attempt to do so is a nullity.-Goley's case, 87 Ala. 57 (6 So. 287). Constitutional right of “a speedy public trial' by "jury," construed.-Ex parte State, 76 Ala. 482; Noles's case, 24 Ala. 672; Tim's case, 26 Ala. 165. Extends only to prosecutions by "indictment or information."-Tim's case, supra; Connelly's case, 60 Ala. 89. Statute authorizing a waiver of trial by jury, by transferring case to inferior court, not unconstitutional.—Ib. Waiver of trial by jury; revision of judgment on facts.-Wren's case, 70 Ala. 1; Summers's case, 70 Ala. 16. Waiver of trial by jury; right questionable. Sanders's case. 55 Ala. 43. Trial with less than twelve jurors, not permitted, even with the defendant's consent.-Bell's case, 44 Ala. 393. Impeachment law providing for trial without jury, not unconstitutional.-Buckley's case, 54 Ala. 599. Defendant entitled to disposition of his case during term then being held if pos sible, etc.-Lee's case, 52 Ala. 321. Right of accused to be present during trial, etc.-Ex parte Bryan, 44 Ala. 402; Hughes's case, 2 Ala. 102; Slocovitch's case, 46 Ala. 227; Henry's case, 33 Ala. 389; Hall's case, 40 Ala. 698; Sylvester's case, 71 Ala. 17; Cook's case, 60 Ala. 39; Hughes's case, 2 Ala. 102; Eliza's case, 39 Ala. 694; Gibson's case, Ib. 693; Waller's case, 40 Ala. 325. What entry sufficiently shows presence of prisoner throughout the trialSnow's case, 58 Ala. 372. Shackling or manacling prisoner during trial, in discretion of court, but resorted to only in extreme cases.-Faire's case, 58 Ala. 74. When put upon trial, sheriff has custody of prisoner, by operation of law, without an order.-Hodges's case, 8 Ala. 55. But see Hawk's case, 84 Ala. 466 (4 So. 690); Cook's case, 91 Ala. 53 (8 So. 686). Construction of special act for Montgomery county. Statute directory merely. Smith v. State, 98 Ala. 55 (13 So. 508).

ARTICLE 2.

APPOINTING COUNSEL TO DEFEND, AND SERVING COPY OF VENIRE AND INDICT

7839. (5272) (4448) (4872) (4171) (619) When counsel appointed for defendant in capital case.-If the defendant is

Appointing Counsel to Defend, and Serving Copy of Venire and Indictment. indicted for a capital offense, and is unable to employ counsel, the court must appoint counsel for him, not exceeding two, who must be allowed access to him, if confined, at all reasonable hours.

(Aikin's Digest, p. 119, § 25.)

7840. (5273) (4449) (4872) (4171) (619) Service of copy of indictment and list of jurors on defendant in capital case.— If the defendant is indicted for a capital offense, a copy of the indictment and a copy of the venire for his trial, if a special venire is required for his trial, must be served on him, or on counsel appearing for him, at least one entire day before the day set for his trial.

(Aikin's Digest, p. 119, § 25; Toulmin's Digest, p. 214, § 47.) Section 7265 (5005) providing what constitutes a venire for capital cases does not conflict with this section.-Burton v. State, 107 Ala. 108 (18 So. 284). No objection that copy of venire and indictment served on defendant were addressed under alias or pluries names.-Banks v. State, 39 So. 921. Rulings on former statute (prior to Code of 1886) not strictly applicable to this.Reese's case, 90 Ala. 624 (8 So. 818). Whether the defendant is in custody or on bail, the service may now be made on defendant personally or on counsel appearing for him.-Reese's case, 90 Ala. 624 (8 So. 818); Johnson's case, 94 Ala. 35 (10 So. 667); Henderson's case, 98 Ala. 35 (13 So. 146). Not essential to validity that service of copy of indictment and venire be made at the same time.-Barnett's case, 83 Ala. 40 (3 So. 612). Irregularities waived unless objection made before entering upon trial.-Williams's case, 81 Ala. 1 (1 So. 179); Barnett's case, 83 Ala. 40 (3 So. 612); Wade's case, 50 Ala. 164. Effect of duplicating name of juror, thereby making the whole number one less than ordered. McQueen's case, 94 Ala. 50 (10 So. 433); Darby's case, 92 Ala. 9 (9 So. 429). Copy of a copy sufficient on change of venue.-Brister's case, 26 Ala. 107. Validity of service not affected by prior nolle prosequi of one count.-Scott's case, 37 Ala. 117. Sufficiency of copy.-Ezell's case, 54 Ala. 165; Nutt's case, 63 Ala. 180; Hubbard's case, 72 Ala. 164; McDaniel's case, 76 Ala. 1. Effect of material variance between copy and original; when ground to postpone trial.-Tidwell's case, 70 Ala. 33. Acknowledgment in open court, of service, precludes dispute of service or further inquiry.-Wesley's case, 52 Ala. 182; Griffin's case, 90 Ala. 596 (8 So. 670). No objection to venire if prisoner not misled.-Aiken's case, 35 Ala. 399. Court may determine spelling of name of juror as written in list.-Taylor's case, 48 Ala. 180. Mistake in name of juror immaterial.-Gibson's case, 89 Ala. 121 (8 So. 98); Walker's case, 91 Ala. 76 (9 So. 87). Making and serving list ministerial duties.-Kenan's case, 73 Ala. 15. Record must show order requiring sheriff to serve copy of indictment and venire, but need not affirmatively show compliance with such order; in absence of objection in court below, compliance presumed on appeal.-Spicer's case, 69 Ala. 159 (expressly overruling former decision to the contrary); Paris's case, 36 Ala. 232; Lewis's case, 51 Ala. 1; Mitchell's case, 58 Ala. 417; Rash's case, 61 Ala. 89; Phillips's case, 68 Ala. 469; Clarke's case, 78 Ala. 474; Shelton's case, 73 Ala. 5; Breden's case, 88 Ala. 20 (7 So. 258); Walker's case, 91 Ala. 76 (9 So. 87). What constitutes venire and the names to be included therein, see § 7265 (5005) and note. Excusing jurors. See notes to § § 7263 (5004) and 7280 (5020). Quashing venire. -See 7256. What required to be served on defendant.-Smith v. State, 145 Ala. 17 (40 So. 957). The record need not show service of the venire on the defendant, yet the order for the same must appear on record and it must appear that the defendant was personally in court; recitals in bills of exceptions cannot cure defects in record proper.-Lomineck v. State, 39 So. 676. Failure to record organization of grand jury; defects in copy of venire served

Trial; Joint or Several.

on defendant. See Carwile v. State, 39 So. 220. The name of a person upon a venire who is not an original juror is not error without injury.-Carwile v. State, 39 So. 220.

This statute is a plain and peremptory command and as such it should be enforced by the court; the record should show affirmatively that the statute is com plied with.-Morgan v. State, 48 Ala. 65. If the record shows the judicial order. it will be presumed that the sheriff discharged his duty in serving list.-Hughes v. State, 117 Ala. 25 (23 So. 677). What constitutes a compliance with the statute.—Brown v. State, 128 Ala. 12 (29 So. 200). An omission to comply with the statute constitutes a ground for quashing the venire.-Brown v. State, 128 Ala. 12 (29 So. 200). An order that the sheriff "serve the defend ant with a copy of the list of the names of persons constituting the jurors," held sufficient.-Ford v. State, 129 Ala. 16 (30 So. 27); Sanders v. State, 131 Ala. 1 (31 So. 564). The fact that the list served does not designate those who are regular jurors and those who are special, no ground for quashing the venire.-Cawley v. State, 133 Ala. 128 (32 So. 227). It is a copy of the venire for his trial" which must be served on the defendant or his counsel.Johnson v. State, 133 Ala. 38 (31 So. 951). Mistakes in the names of persons served as jurors or discrepancies in their names between original and copy served on prisoner, no ground for quashing venire.-Bell v. State, 115 Ala. 25 (22 So. 526).

7841. (5274) (4450) (4873) (4172) (620) List of talesmen not served. If the persons summoned as jurors fail to appear, or if the panel is exhausted by challenges, neither the defendant nor his counsel is entitled to a list of the persons summoned to supply their places.

(Aikin's Digest, p. 119, § 25.)

ARTICLE 3.

TRIAL; JOINT OR SEVERAL. 7842.

7842. (5275) (4451) (4892) (4190) (638) Trial, joint or several, at the election of either defendant.-When two or more defendants are jointly indicted, they may be tried, either jointly or separately, as either may elect.

Rule of practice 32, Code of 1896, is in no sense violative of the statute as to the right of severance, but it is simply supplementary or complementary to the statute.-Miller v. State, 130 Ala. 1 (30 So. 379). If a severance is not demanded before the trial is entered upon it will be considered as waived.Miller v. State, 130 Ala. 1 (30 So. 379). Abolishes discretionary power of court to grant or refuse severance and confers upon either co-defendant the right to be tried separately at his election.-Woodley's case, 103 Ala. 23 (15 So. 820); Wilkins's case, 112 Ala. 55 (21 So. 56); Andy's case, 87 Ala 23 (6 So. 53). Confers right to a separate trial; no right to demand joint trial. -Woodley's case, 103 Ala. 23 (15 So. 820); Jackson's case, 104 Ala. 1 (16 So. 523); Yarbrough's case, 105 Ala. 43 (16 So. 758); Wright's case, 108 Ala. 60 (18 So. 941); Wilkins's case, 112 Ala. 55 (21 So. 56). A plea of not guilty, interposed by one defendant alone, operates a severance as to him, and his co-defendants cannot object.-Woodley's case, 103 Ala. 23 (15 So. 820); Calloway's case, 103 Ala. 27 (15 So. 821). When two jointly indicted and one not arrested, court may order severance and proceed to try the other.Wright's case, 108 Ala. 60 (18 So. 941); Yarbrough's case, 105 Ala. 43 (16 So. 758). Insanity of one defendant and separate arraignment of other, works a severance.-Marler's case, 67 Ala. 55. If no demand for separate trial. whether trial shall be joint or separte rests, as at common law, in discretion