to another county, on making application to the court, setting forth specifically the reason why he cannot have a fair and impartial trial in the county in which the indictment is found; which application must be sworn to by him, and must be made as early as practicable before the trial, or may be made after conviction, on new trial being granted, and the refusal of such application may, after final judgment, be reviewed and revised on appeal. If the defendant is in confinement, the application may be heard and determined without the personal presence of the defendant in court.

Origin of statute.-Toulmin's Digest, p. 233. (Aikin's Digest, p. 121, § 37; Clay's Digest, p. 480, § 26; Feb. 17, 1885, p. 140.) Applications for a change of venue should set forth the facts or reasons why the defendant could not have a fair and impartial trial in the county, and the affidavits in support of it should contain facts and not mere expressions of opinion.-Gilmore v. State, 126 Ala. 20 (28 So. 595); Thompson v. State, 122 Ala. 12 (26 So. 141): Byers v. State, 105 Ala. 31 (16 So. 716); Jackson v. State, 104 Ala. 1 (16 So. 523); Taylor v. State, 48 Ala. 181. Meaning of term, "as early as praeticable before trial.'-Byers v. State, 105 Ala. 31 (16 So. 716). This statute has no application to civil actions.-K. C. M. & B. R. R. Co. v. Sanders, 98 Ala. 293 (13 So. 57). Practice; both parties may be heard.-Taylor's case, 48 Ala. 181; Ex parte Chase, 43 Ala. 303. When counter affidavit insufficient.Birdsong's case, 47 Ala. 68. What not sufficient objection to affidavits.-Taylor's case, 48 Ala. 180. Court not bound to hear oral testimony.-Ib. When applica tion too long delayed.-Wolf's case, 49 Ala. 359. Agreement of counsel is no legal reason to remand case back to county from which removed, nor for mandamus to compel such action.-Ex parte Dennis, 48 Ala. 305. But if case is so transferred back, accused estopped from questioning validity of order of such transfer.-Paris's case, 36 Ala. 232. City court has jurisdiction to try case from another county.-Lewis's case, 49 Ala. 1. Order of removal must be made in presence of accused.-Ex parte Bryan, 44 Ala. 402. Change of venue sets aside continuance.-Ex parte Johnson, 18 Ala. 414. Prior to amendatory act of February 17, 1885, the granting or refusing of change of venue was held discretionary with the trial court, and not revisable, in Evans's case, 62 Ala. 6; Bryan's case, 43 Ala. 321; Wesley's case, 61 Ala. 282; Kelly's case, 52 Ala. 361 (overruling the contrary doctrine in Ex parte Chase, 43 Ala. 303; Edwards's case, 49 Ala. 334; Lewis's case, Ib. 1; Birdsong's case, 47 Ala. 68; Taylor's case, 48 Ala. 180; Murphy's case, 45 Ala. 32). See Posey's case. 73 Ala. 490; Ex parte Banks, 28 Ala. 28; Ware's case, 10 Ala. 814; Brookshire's case, 2 Ala. 303. Under present statute change of venue is matter of right if application made in proper time and supported by sufficient proof.-Hussey's case, 87 Ala. 121 (6 So. 420); Seams's case, 84 Ala. 410 (4 So. 521). Application must be made as early as practicable; when comes too late.-Fallin's case, 86 Ala. 13 (5 So. 423); Shackleford's case, 79 Ala. 26. The inquiry is limited to whether accused can have a fair and impartial trial at the time of the application, and not at some prior date.-Hawes's case, 88 Ala. 37 (7 So. 302). Not granted on the mere belief of the party or his witnesses that such trial cannot be had; "facts and circumstances rendering such a trial improbable must appear."-Jackson's case, 104 Ala. 1 (16 So. 523); Salm's case, 89 Ala. 56 (8 So. 66); Hawes's case, 88 Ala. 37 (7 So. 302); Seams's case, 84 Ala. 410 (4 So. 521); Byers's case, 105 Ala. 31 (16 So. 716). Evidence for and against the application is confined to affidavits; witnesses cannot be examined ore tenus.-Hawes 's case, 88 Ala. 37 (7 So. 302). The practice of receiving counter affidavits not violative of any constitutional right of the accused.-Hussey's case, 87 Ala. 121 (6 So. 420). Bill of exceptions necessary to carry up lower court's ruling on application.-Hawk's case, 84 Ala. 6 (4 So. 283); Jones's case, 77 Ala. 98. On appeal the ruling of the lower court is presumed to be correct and will not be reversed unless error affirmatively appears. Supreme court "must see, and see clearly, that its action was

wrong."-Hawes's case, 88 Ala. 37 (7 So. 302); Edwards's case, 49 Ala. 334. Evidence examined and held insufficient to reverse judgment overruling application. Hawes 's, 88 Ala. 37 (7 So. 302); Rains's case, 88 Ala. 91 (7 So. 315); Hussey's case, 87 Ala. 121 (6 So. 420); Prater's case, 107 Ala. 26 (18 So. 238). When sufficient.-Seams's case, 84 Ala. 410 (4 So. 521). See, also, Posey's case, 73 Ala. 490.

7852. (5310) (4486) (4912) (4207) (655) Removal to nearest county, and but once.-The trial must be removed to the nearest county free from exception, and can be removed but once.

(Clay's Digest, p. 480, § 26.) Can be removed but once.-Ex parte Dennis, 48 Ala. 304; Aiken's case, 35 Ala. 399. Must be to nearest unobjectionable county, regardless of convenience of witnesses, time of court, etc.-Ex parte Reeves, 51 Ala. 55. Court must choose the county.-Ex parte Hodges, 59 Ala. 305. Presumption in favor of correctness of order of removal.-Lewis's case, 49 Ala. 1.

7853. (5311) (4487) (4913) (4208) (656) Consent to depositions, and payment of mileage to clerk.-When the defendant is charged with a misdemeanor, an order for the removal of his trial must not be made, unless he consents of record that the witnesses for the prosecution may be examined on interrogatories, on such terms as the court may prescribe; and he must also, at the time the order is made, pay the clerk five cents for each mile to and from the courthouse of the county to which the trial is removed.

7854. (5312) (4488) (4914) (4209) (657) Transcript certified by clerk, and subpoenas forwarded.-When an order for the removal of the trial is made, the clerk must make out a transcript of all the entries, orders, and proceedings in the case, including the organization of the grand jury, the indictment, the indorsements thereon, all the entries relating thereto, the undertakings or recognizances of the defendant, all the orders and judgments thereon, and the order for the removal of the trial; must attach his certificate thereto, and forward the package under seal, by a special messenger, or by express, or by registered mail, or deliver it in person, to the clerk of the court to which the trial is ordered to be removed; and he must also inclose in the package, and forward or deliver in the same manner, the original subpoenas in the case.

Transcript need not be under seal; may be amended or certified in new county.-Child's case, 55 Ala. 25; Boddie's case, 52 Ala. 395; Hall's case, 51 Ala. 9 (overruling Williams's case, 48 Ala. 85). When objection to certificate shall be made.-Boddie's case, supra. How certified transcript applied if lost or destroyed.-Dunn's case, 60 Ala. 35. Clerk must not transmit original papers.-Harrall's case, 26 Ala. 52.

7855. Personal attendance of witnesses.-When an application for a change of venue is presented to the court, the judge shall have authority to and may direct the issue of subpoenas for such number of witnesses for either the defendant or the

(w.c.c.)

state as he may deem just and proper to appear before the court on the hearing of such application to testify as to the facts concerning the issues made by such application. The number and names of such witnesses shall be subject to the control and discretion of the court, the costs to be taxed as other costs in the case. This shall not prevent the presentation of facts by affidavit.

7856. (5313) (4489) (4915) (4210) (658) Subpoenas issued; by whom.-At any time before the delivery of the transcript to the clerk of the court to which the trial is removed, subpœnas for witnesses must be issued, on the application of either the defendant or the solicitor, by the clerk of the court in which the indictment was found, commanding such witnesses to appear at the court to which the trial is removed, which subpœnas must be executed by the sheriff, and returned to the clerk of the latter court; and the clerk must, after the delivery of the transcript to him, issue the subpoenas for witnesses.

7857. (5314) (4490) (4916) (4211) (659) Trial had on transcript; certiorari ordered when necessary.-The defendant must be tried in the court to which the case is removed, on the copy of the indictment thus certified; and such court may, if necessary, on a proper showing, order the clerk of the court in which the indictment was found to correct any mistake in the transcript, or to certify any portion of the record which he may have omitted.

Destruction of certified transcript, how supplied.-Dunn v. State, 60 Ala. 35. Court may issue certiorari for certified copies of papers, etc., if originals have been sent; will not operate discontinuance.-Harrall's case, 26 Ala. 52. Sufficiency of transcript.-Scott's case, 37 Ala. 117; Brister's case, 26 Ala. 107. Defective certificate may be supplied by testimony of clerk.—Hall's case, 51 Ala. 9; Bishop's case, 30 Ala. 34. What record of conviction on change of venue must show; when agreement of counsel insufficient.-Goodloe's case, 60 Ala. 93. See, also, note to § 7854 (5312).

7858. (5315) (4491) (4917) (4212) (660) Fines and forfeitures, fees of jurors and witnesses not affected by removal.All fines and forfeitures in such cases go to the county in which the indictment was found, and judgment must be rendered accordingly; and the fees of all jurors and witnesses, on being properly certified by the clerk of the court to which the trial is removed, are a charge on the county in which the indictment was found, in like manner as if the trial had not been removed. Greene County v. Hale County, 61 Ala. 72.

VETO RECONSTRUCTION ACTS (Political Code), p. 41.
VIADUCTS; OF TOWNS AND CITIES (Political Code).
VITAL STATISTICS (Criminal Code)..

VOID CONTRACTS (Civil Code)...
VOTERS; WHO ARE (Political Code)..
VOTING (Elections) (Political Code).,
(Criminal Code)

66

VULGAR LANGUAGE (Criminal Code).
WAGERING CONTRACTS (Civil Code).
WAGES (Civil Code)...

WAIVER OF EXEMPTIONS (Civil Code).
WARDS AND GUARDIANS (Civil Code).

757-770

125 1186

.1296-1301

7050 et seq.

.3334-3353

.290-297

.290-511

.6773 et seq.

6217

.3338-3345

.4165, 4201, 4790 et seq.

.4231-4237, 4172

WAREHOUSEMEN AND COMMON CARRIERS (Civil Code)..

.4337-4481 ..6123-6142

7859. (4738) (3820) Issuing false receipts for merchandise, produce, or articles of value.-Any warehouseman, or agent or employe of any warehouseman, or any person engaged in the storage or safe keeping of goods, wares, merchandise, lime, or lumber, or cotton, grain, hay, or other produce, or any article of value, or any agent or employe of such person, or any officer or agent of any corporation engaged in such business, who, with an intent to injure or defraud, issues any false receipt for any goods, wares, merchandise, lime, or lumber, cotton, grain, hay, or other produce, or any article of value, must, on conviction, be fined not more than two thousand dollars, and sentenced to hard labor for the county for not more than two years, one or both, at the discretion of the jury.

(Nov. 29, 1880, p. 127.)

61-AC-VOL. III

Mar. 7, 1907, p.

7860. (4739) (3821) Issuing false receipt or delivering goods without surrender of receipt.-Any warehouseman, wharfinger, agent of a vessel or railroad, or other person, who violates any of the provisions of sections 6132 (4219), 6134 (4221), 6135 (4222), 6136 (4223), of this Code, must, on conviction, be fined not more than one thousand dollars, or imprisoned in the penitentiary for not more than five years.

(Feb. 28, 1881, p. 134, § 7.)

7861. Carrying on business of warehouseman without 315, 6. license, penalty.—Any person, firm, or corporation who shall transact the business of a warehouseman for the storage of cotton or other articles of value for compensation, without first securing a license and giving bond as required by this Code, or who shall continue to transact such business after such license has been revoked or such bond has become void or found insufficient to deliver property previously stored in said warehouse by the judge approving the same, shall be guilty of a misdemeanor, and, upon conviction, be fined a sum not less than one hundred nor over five hundred dollars for each and every day such business is carried on.

Note. This section re-written by the commissioner to make the meaning certain.

CROSS REFERENCES.

WAREHOUSES AND WAREHOUSEMEN (Criminal Code)..
WARRANTIES AND COVENANTS (Civil Code)..

WARRANT OF ARREST (Criminal Code).....

.7859-7861

.3420-3421

.6278, 7587, 7862

CHAPTER 305.

WARRANTS. 7862.

(See Arrests. 6267-6294.)

7862. Bench warrant.-A bench warrant is one issued by a judge for the arrest of one accused of a crime by a grand jury. Every officer is bound to issue it within his jurisdiction, and every person so arrested must be committed to jail until bail is tendered; any judicial officer, or the sheriff of the county where the accusation was found, may receive the bail, fix the amount of the bond, and approve the sureties, unless it be a case that is bailable only before some particular officer.