according to the evidence in his favor he would be innocent, and the jury cannot tell where the truth indubitably lies, this would furnish a just ground for a reasonable doubt, and the defendant ought to be acquitted."

William L. Martin, attorney-general, for the state.

WALKER, J. The jury are not required to acquit, in a criminal case, because they are not "indubitably certain that the defendant is guilty, or because, on the whole evidence, they may be unable to say "where the truth indubi tably lies." Obedience to the two charges requested by the defendant would have required an acquittal, unless the evidence of guilt had been such as to remove all doubt from the minds of the jury: Webster's International Dictionary. Under these instructions, any possible, speculative, or imaginary doubt would have been sufficient to prevent a conviction. That the doubt which the jury are authorized to regard as an obstacle in the way of a conviction must be a reasonable doubt, and that the statement of the requisite of reasonableness is essential to the correctness of a charge on the subject, are familiar and well-settled propositions: Perry v. State, 87 Ala. 30; Humbree v. State, 81 Ala. 67; Linton v. State, 88 Ala. 216.

The refusal to give the two charges requested by the defendant was manifestly proper.

Affirmed.

CRIMINAL LAW - REASONABLE DOUBT.-A reasonable doubt is one that would cause a person to pause and hesitate before doing anything that would constitute a serious transaction in his life: Commonwealth v. Miller, 139 Pa. St. 77; 23 Am. St. Rep. 170, and note. An instruction to a jury, that unless you are satisfied beyond a reasonable doubt of defendant's guilt, it is your duty to acquit him, is correct: People v. Christensen, 85 Cal. 568; Hemingway v. State, 68 Miss. 871; Aneals v. People, 134 IIL 401.

STOKES V. STATE.

[92 ALABAMA, 73.]

CRIMINAL LAW-NIGHT-WALKING. — A WOMAN WHO STROLLS THE STREETS AT NIGHT for the unlawful purpose of picking up men for lewd intercourse, though without expectation of gain, is guilty of night-walking. INDICTMENT and conviction against Nora Stokes of the offense of being a night-walker. The count in the indictment upon which a conviction was asked was as follows: "The grand jury further charge that Nora Stokes was a common night-walker, and did walk and ramble the streets and common highways in the city of Montgomery at unreasonable hours of the night, without having any lawful purpose, and without any necessity therefor, for the unlawful purpose of picking up men for lewd intercourse," etc.

William L. Martin, attorney-general, for the state.

COLEMAN, J. The defendant was convicted of the offense of night-walking. A night-walker has been defined to be one who has a habit of being abroad at night for the purpose of committing some crime, of disturbing the peace, or doing some wrongful or wicked act. Night-walking, at common law, is a common nuisance: 1 Bishop's Crim. Law, 7th ed., sec. 502, and note. Night-walkers are persons who stroll the streets at night for immoral purposes, or, as charged in the indictment, "for the unlawful purpose of picking up men for lewd intercourse," and are indictable at common law: 2 Wharton's Crim. Law, sec. 1446. Persons who eavesdrop men's houses, "to hearken after discourse, and thereupon to frame slanderous and mischievous tales, to cast men's gates, carts, and the like," are night-walkers: Thomas v. State, 55 Ala. 260. The expectation of gain is not an essential ingredient to constitute the offense of "night-walking," and the refusal of the trial court to give a charge which asserted this proposition was correct.

The evidence fully warranted the charges given at the request of the solicitor. The sufficiency of the evidence was a question for the jury.

Affirmed.

CRIMINAL LAW-WHO IS A PROSTITUTE. - A woman submitting to indiscriminate sexual intercourse, which she solicits by any act of her own, is prostitute, no matter whether she receives compensation or not: State v. Clark, 78 Iowa, 492. But compare Commonwealth v. Munson, 127 Mass. 459, 34 Am. Rep. 411, for what does not constitute lewd and lascivious cohabitation.

EX PARTE HURN.

[92 ALABAMA, 102.]

MANDAMUS TO REVIEW ACTION OF COURT.-Mandamus will not lie to com pel a judge to hear and determine a motion for the restoration of money to a prisoner, who has been deprived of it by an officer at the time of his arrest, when the money has subsequently been attached in the hands of the officer, and the attachment suit remains undecided, and the motion to restore has been overruled, on the ground that the court has no jurisdiction to entertain it.

ARREST - LIABILITY OF OFFICER FOR SEIZING MONEY ON PERSON OF PRISONER. — An officer, by virtue of his authority to arrest, may also search the prisoner, and seize and remove from his person any money, or any. thing connected with the offense, or which, in good faith, he has proba ble cause to believe to be connected therewith, or which may be used as evidence on the trial, without being liable in damages for trespass, although it may result that the money or thing was not, in fact, connected with the offense, or could not be used as evidence at the trial. ATTACHMENT OF MONEY TAKEN FROM PRISONER. Money taken from the person of a prisoner at the time of his arrest, by an officer acting in good faith, under the belief, or reasonable and probable ground for the belief, that it is connected with the crime charged, or that it may be useful as evidence at the trial, is subject to attachment or garnishment while in the officer's hands or in court. If the arrest is not made in good faith, or if the money is not seized under probable ground for the belief mentioned, it is not subject to attachment or garnishment; or if the levy is procured by trickery or fraud on the part of the attaching creditor, it is invalid, and such creditor, as well as the officer making the levy with knowledge of the fraud, is liable in damages.

Moore and Finley, for the petitioner.

William L. Martin, attorney-general, for the state.

COLEMAN, J. The petitioner, Hurn, having been arrested on the criminal charge of fraudulently obtaining goods on a credit, was searched by the officer making the arrest, who took from him $1,124.40 found concealed in his clothing. The prisoner and the money were delivered to the sheriff of the county. An attachment, having been sued out against the defendant, Hurn, was placed in the hands of the sheriff, and by him levied upon the money in his possession. This was followed by a writ of garnishment executed by the coroner of the county upon the sheriff. The attachment and garnishment suits were made returnable to the city court of Montgomery.

The sheriff, as garnishee, filed his answer, setting up the facts and circumstances under which he came in possession of the money, paid the money into court, and prayed that "all proper issues and orders be made up under the direction

of the court, in order that it might be ascertained to whom the money should be paid." The defendant, Hurn, moved the court for an order that the money be restored to him, "upon the grounds that his person had been searched in violation of law, and the money wrongfully, illegally, and violently taken from his person." The suit by attachment and upon which the garnishment issued were still pending and undisposed of at the hearing of the motion.

The court refused to permit moveant to introduce affidavits in support of the facts stated in his petition, and made the following order: "April 14, 1891. Motion overruled, — 1. Because the court is without jurisdiction; 2. Because the facts set out in the motion present an issue to be decided by the jury in the trial of the attachment suit."

From this order overruling the motion, the petitioner applies to this court for a mandamus, "upon the grounds that the court refused to hear and determine the motion," etc.

In Ex parte Redd, 73 Ala. 549, it was declared that the coercive process of mandamus is proper when an inferior court refuses to proceed to judgment in a case in which the law makes it his duty to act. This court compels judgment, but will not control it.

In Ex parte Schmidt, 62 Ala. 254, it was held that the writ would lie to compel the execution of ministerial duties in all proper cases, but would not be awarded to order or direct what judgment shall be rendered in any given case, nor can its powers be invoked to correct any error in the final judgment or decree of an inferior court. In such cases there is an adequate remedy by appeal: Ex parte Echols, 39 Ala. 700; Ex parte State Bar Association, 92 Ala. 113.

In the case of petitioner, the court overruled the motion. The motion has been disposed of by judicial action of the court. Whether the court erred in the order overruling the motion, or in not receiving in evidence the affidavits offered in support of the petition, or whether the reasons assigned by the court for overruling the motion are sufficient, cannot be reviewed on the application for the writ of mandamus. Such questions are revisable only by appeal. The remedy by appeal seems to have been resorted to in the cases cited by appellant.

Both parties have argued the case upon its merits, and in view of such intimation from counsel, it may not be improper to consider the real question involved in the case.

It is the law that the levy of an attachment procured by trickery, fraud, or trespass will be held to be invalid, and the officer who makes a levy by such means exposes himself to an action in damages: Waples on Attachment, 180. An officer cannot forcibly take property from the person of a defendant; and if a levy is effected by force, fraud, or violence of any kind, it is generally held void: 1 Wade on Attachment, sec. 130; Mack v. Parks, 8 Gray, 517; 69 Am. Dec. 267; Folmar v. Copeland, 57 Ala. 588; Street v. Sinclair, 71 Ala. 110. In Drake on Attachment, sec. 506, it is said: "An officer, under criminal process against a person, arrested and took from him money and property found in his possession. The officer was summoned to answer as garnishee of the prisoner. It was held that the officer was exempt from garnishment." The text here stated from Drake on Attachment refers to two decisions from Massachusetts: Robinson v. Howard, 7 Cush. 257; and Morris v. Penniman, 14 Gray, 220; 74 Am. Dec. 675. An examination of these decisions shows that they were based upon a statute of the state which provided that no person should be adjudged a trustee "by reason of any money in his hands as a public officer, and for which he is accountable to defendant as such officer." In another section of the Massachusetts code it is declared "that money collected by the sheriff by force of legal process in favor of the defendant in the trustee process could not be reached by trustee proceedings." These statutes have been brought forward, and may be found in the Massachusetts code of 1882, page 1055.

The case of Zurcher v. Magee, 2 Ala. 253, is to the same effect as the Massachusetts decisions holding that money in the hands of the sheriff, collected by him, to be "in the custody of the law." Since the decision in 2 Alabama was rendered, the law has been changed by statute (Code 1886, sec. 2950), and now money in the hands of the sheriff or other officer may be attached, and as was held in Pruitt v. Armstrong, 56 Ala. 310, the law as declared in 2 Alabama no longer prevails.

The law as cited from Drake, supra, and the cases cited from Massachusetts being based upon a statute of that state different from the statute of this state, cannot be regarded as authority upon the question.

The case of Closson v. Morrison, 47 N. H. 483, 93 Am. Dec. 459, is very much in point. In that case the deputy sheriff, having arrested the plaintiff on a complaint for larceny, searched him,