actually heard by the females.-Ib. And if the words are alleged, need not prove same words, but sufficient if there is no variance in the sense.-Benson's case, 68 Ala. 544. Offense cannot be committed jointly, unless one person incites other to use the language.-Cox's case, 76 Ala. 66. But an acquittal of one would, on reversal, authorize a nol. pros. against him and trial of the other.-Ib. Witness may testify he was near enough to hear, but did not hear the language imputed to defendant.-Ib. It is no defense that accused had no knowledge of the presence of the female.-Laney's case, 105 Ala. 105 (17 So. 107). The first clause of the statute protects the home or any member of the family; the second, any female, anywhere and everywhere.-McVay's case, 100 Ala. 110 (14 So. 862). Variance: An indictment under either clause will support conviction, on proof under other clause.-McVay's case, 100 Ala. 110 (14 So. 862). A witness may state that a third party could have heard certain language at a given distance.-McVay's case, 100 Ala. 110 (14 So. 862). That accused was in his own yard, quarreling with his own family, not intending for his language to be heard by his neighbor's family, is no defense. Thomas's case, 92 Ala. 85 (9 So. 398); Mullen's case, 82 Ala. 42 (2 So. 481). Bad character of female no defense, but her habit of using generally, or to accused, the interdicted language, is relevant, in mitigation or extenuation.-Golson's case, 86 Ala. 601 (5 So. 799). The tone of the voice is immaterial if the language is heard.-Mullen's case, 82 Ala. 42 (2 So. 481). The words, "I'll go where I darn please, and it don't make a darn bit of difference where it is," sufficient to support prosecution.-Weaver's case, 79 Ala. 279. CROSS REFERENCES. ABUSIVE, INSULTING, OBSCENE LANGUAGE (Criminal Code)..... 6217 CHAPTER 155. ABUSIVE OR THREATENING LETTERS. 6218. 6218. (4307) (3769) (4106) (3553) (13) Sending threatening or abusive letters.-Any person, who sends to another a threatening or abusive letter, which may tend to provoke a breach of the peace, must be punished, on conviction, by fine and imprisonment in the county jail, or hard labor for the county; the fine not to exceed, in any case, five hundred dollars, and the imprisonment or hard labor not to exceed six months. Graves's case, 9 Ala. 447; Crow's case, 18 Ala. 546; Reid's case, 53 Ala. 402. CROSS REFERENCES. 6218 .5081-5118, 5166 ABUSIVE OR THREATENING LETTERS (Criminal Code). 18-AC-VOL. III 6219. (4308) (3704) (4802) (4129) (480) Accessories before the fact; principals in first and second degrees; distinction abolished. The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abolished; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must hereafter be indicted, tried, and punished as principals, as in the case of misde meanors. At one time punishable by thirty-nine lashes on the bare back.-Toulmin's Digest, p. 207, § 13. (Aikin's Digest, p. 102, § 13; Clay's Digest, p. 440, § § 13, 15, 16.) One conspirator having testified against the other not necessarily entitled to be discharged.-Martin v. State, 136 Ala. 32 (34 So. 205). Each conspirator is responsible for everything done which follows incidentally the execution of the common unlawful purpose.-Martin v. State, 136 Ala. 35 (34 So. 205). Participants equally guilty.-Wicks's case, 44 Ala. 398; Scott's case, 30 Ala. 503; Hughes's case, 75 Ala. 31. Statute abolishes common law distinction; defendant may be guilty if he contributed to criminal result by word or deed calculated to encourage its accomplishment, though he be not present. -Ferguson v. State, 134 Ala. 63 (32 So. 760). A principal in the second degree is one lending his countenance and encouragement or otherwise aiding, while another does the act.-Tally's case, 102 Ala. 25 (15 So. 722). Not necessary that the criminal act be done in respect of time, place, or mode according to prearrangement; conspiracy may be established by circumstantial evidence. Ferguson v. State, 134 Ala. 63 (32 So. 760). The aiding or abetting necessary to constitute principal in second degree must be by preconcert, or known to principal in first degree-the aid need not have caused the result; if it facilitated or gave confidence to principal in first degree it is sufficient. -Tally's case, 102 Ala. 69 (15 So. 722). To make accessory guilty it is not necessary that crime be committed in manner or at time as agreed on.Griffith's case, 90 Ala. 583 (8 So. 812). No positive agreement is necessary to support a conspiracy.-Martin v. State, 136 Ala. 32 (34 So. 205). The responsibility for incidental or exceptional results broadens with the gravity of the unlawful act agreed to.-Williams v. State, 81 Ala. 1 (1 So. 179). A crime by one confederate after abandonment of common design does not render all liable.-Williams v. State, 81 Ala. 1 (1 So. 179). Distinction where the act agreed to is malum in se or malum prohibitum.-Williams v. State, 81 Ala. 1 (1 So. 179). "Aid" and "abet" are nearly synonymous; they comprehend all assistance rendered by acts, words, encouragement, or support. -Raiford v. State, 59 Ala. 106. Positive or direct proof not necessary to establish the relation of the parties.-Martin's case, 89 Ala. 115 (8 So. 23); Gibson's case, 89 Ala. 121 (8 So. 98); Tanner's case, 92 Ala. 1 (9 So. 613); Jolly's case, 94 Ala. 19 (10 So. 606); Elmore's case, 110 Ala. 63 (20 So. 323).. Principals in first and second degree equally guilty.-Jolly's case, 94 Ala. 23 (10 So. 606). An accessory before the fact is one who causes or procures the commission of a crime by another.-Griffith's case, 90 Ala. 583 (8 So. 812). 6220. (4309) (4005) (4150, 4151) (3589, 3590) (48, 49) When concealing felon makes one an accessory after the fact.— Any person, who, knowing that another has committed a felony, and not occupying the legitimate relation of parent, child, brother, sister, husband, or wife to such offender, conceals, or gives any other aid to such offender, with intent to enable him to avoid or escape from arrest, trial, conviction, or punishment, is an accessory after the fact, and, on conviction, must 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 six months; and if the principal felon is dead, or has fled from justice, such accessory may be prosecuted and convicted before the principal; but in such case it shall be necessary to allege in the indictment, and to prove on the trial, the fact that the principal felon is dead or has fled. (Aikin's Digest, p. 103, § § 14 and 18; Clay's Digest, p. 440, § 14.) Natural impulse may exempt parents for aiding in escape or account for their association with their child.-Ferguson v. State, 134 Ala. 63 (32 So. 760). If a person have knowledge that another has committed an offense, and aid him to escape, he will be accessory after the fact, which is a misdemeanor.-Calhoun v. Thompson, 56 Ala. 166. .1273-1275 ACTIONS AGAINST MUNICIPALITIES (Political Code) ACTIONS AND PARTIES (Civil Code) ACTIONS, LIMITATIONS OF (Civil Code) ACTS, JOURNALS AND JOINT RESOLUTIONS (Civil Code). ACTS OF CONGRESS (Political Code) .2440-2506 .4830, 4831 .1663-1667 .568, 594 3988 CHAPTER 157. ADULTERY AND FORNICATION. 6221. 6221. (4310) (4012) (4184) (3598) (57) Living in adultery or fornication.—If any man and woman live together in adultery or fornication, each of them must, on the first conviction of the offense, be fined not less than one 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; on the second conviction for the offense, with the same person, the offender must be fined not less than three hundred dollars, and may be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than twelve months; and, on a third, or any subsequent conviction, with the same person, must be imprisoned in the penitentiary for two years. 69 [57].) (Form Origin of statute.-Toulmin 's Digest, p. 224, § 2. (Aikin's Digest, p. 108, § 43; Clay's Digest, p. 431, § 3.) Adultery is illicit connection where either is married, and includes fornication.-Hinton's case, 6 Ala. 864; White's case, 74 Ala. 31. Must be a living together; one act, or occasional acts, not suffi cient; what constitutes living together.-Hall's case, 53 Ala. 463; Smith's case, 39 Ala. 554; Collins's case, 14 Ala. 608; Quartemas's case, 48 Ala. 269. The question of living together is for the jury.-Hall's case, 53 Ala. 463. The statute is directed against a state or condition of cohabitation distinguished from illicit acts.-Brown v. State, 108 Ala. 18 (18 So. 811). To live together in the state of adultery or fornication is the same as to live in adultery or fornication, with each other.-Pace & Cox v. State, 69 Ala. 231. Indictment examined and held to charge no offense.-State v. Johns, 142 Ala. 61 (38 So. 755). Marriage is not a mere contract, but a social and domestic institution, the most important in its nature.-Green v. State, 58 Ala. 190. Marriage of one of the parties is essential to adultery; fornication, if neither is married, or in the unmarried party.-Buchanan's case, 55 Ala. 154; Banks's case, 96 Ala. 79 (11 So. 404). Parties having gone through a prima facie valid marriage, unless they know the facts which make the marriage void, are not guilty.-Ib.; Vaughan's case, 83 Ala. 55 (3 So. 530). An agreement in one county to commit the act in another is not indictable in the first county. An attempt to commit the crime is indictable, but a mere intent to commit it is not. Brown v. State, 108 Ala. 18 (18 So. 811). Justice of the peace may make warrant returnable to the criminal court having jurisdiction.-Reeves v. State, 116 Ala. 481 (23 So. 28). Mere difference in spelling of proper name alone immaterial.-Reeves v. State, 116 Ala. 481 (23 So. 28). Failure to introduce codefendant as witness does not justify unfavorable inference, and counsel should not be allowed to argue upon such subject to prejudice of codefendant.-Brock v. State, 123 Ala. 24 (26 So. 329). When defendants jointly indicted obtain severance, the failure of one to testify in the case of the other is no ground for comment by counsel.-Coppin v. State, 123 Ala. 58 (26 So. 333). Evidence of good character can generate a doubt only when considered in connection with all the evidence.-Coppin v. State, 123 Ala. 58 (26 So. 333). Indictment need not charge that the parties lived with each other; indictment need not show whether woman was married or single.-Love v. State, 124 Ala. 82 (27 So. 217). When statements by defendant to other party admissible.-Love v. State, 124 Ala. 82 (27 So. 217). The husband or wife may testify in the trial of a third party for an offense committed jointly by the third party and the other.-Campbell v. State, 133 Ala. 158 (32 So. 635), citing Woods v. State, 76 Ala. 35; Birge v. State, 78 Ala. 435. But cannot testify to privileged communications on such trial.-Campbell v. State, 133 Ala. 158 (32 So. 635). Evidence tending to show cohabitation anterior and subsequent to the period covered by the indictment.-Hill v. State, 137 Ala. 66 (34 So. 406). Defendant may show in rebuttal that the place at which the woman lived was not his, but that of his father, and that she went there under contract with his father and for the purpose of working for him.-Hill v. State, 137 Ala. 66 (34 So. 406). Witness cannot be compelled to answer questions which might involve him in the confession of crime, or which may tend to criminate him; asking witness if he is a person of ill fame.-Boles v. State, 46 Ala. 206; Ex parte Boscowitz, 84 Ala. 463 (4 So. 279). Evidence: Marriage may be proved by the acts and declarations of the parties.—Owens & Beaty's case, 94 Ala. 97 (10 So. 669). Evidence against one only of the parties should not be excluded, but limited to the one.-Ib. Adultery is not necessarily merged if the parties are guilty of bigamy.-Ib. Where parties defend by showing marriage to each other, prosecutor may show acts before the marriage.—Ib. One act of illicit intercourse, and an agreement or consent that it will be repeated if opportunity offers, is sufficient.-Bodiford's case, 86 Ala. 67 (5 So. 559). Doubted, Hall's case, 88 Ala. 236, (7 So. 340). A living together for a single day or night, with intent to continue the illicit intercourse, constitutes the offense.-Walker's case, 104 Ala. 56 (16 So. 7); Brown's case, 108 Ala. 18 (18 So. 811). Voluntary sexual intercourse is not the offense, but only an element thereof.-Brown's case, 108 Ala. 18 (18 So. 811). The acts and conduct of the parties prior to and at the time of living together admissible.-Ib. The offense is seldom or never capable of direct proof.-Ib. While occasional acts of adultery do not constitute the offense, yet the jury may convict on it.-Wright's case, 108 Ala. 60 (18 So. 941). The court may order a severance when one party has not been arrested.-Wright's case, 108 Ala. 60 (18 So. 941). An agreement for sexual intercourse consummated at convenience constitutes the offense.-Walker's case, 104 Ala. 56 (16 So. 7). The fact that a man makes frequent visits to a woman of bad reputation does not, as a matter of law, tend to show adultery.-Hall's case, 88 Ala. 236 (7 So. 340). A conviction may be had on proof of four acts of illicit intercourse in a month's time, and declarations by man that he did so whenever he desired. Smith's case, 86 Ala. 57 (6 So. 71). Adulterous acts prior to time alleged may be shown.-Cross's case, 78 Ala. 430. On a joint trial for adultery the husband or wife of either party is not a competent witness.-Birge's case, 78 Ala. 435. Evidence of declarations and conduct, cohabitation and confessions of the parties, but not of general reputation, admissible to prove marriage.-Buchanan's case, 55 Ala. 154; Green's case, 59 Ala. 68; Cameron's case, 14 Ala. 546. Admissibility of evidence of anterior acts.-Lawson's case, 20 Ala. 65; McLeod's case, 35 Ala. 395; Alsabrook's case, 52 Ala. 24. Admissibility of evidence of subsequent acts.-Smitherman's case, 40 Ala. 255; Crowley's case, 13 Ala. 172; Alsabrook's case, 52 Ala. 24; Lawson's case, 20 Ala. 65. Proof of defendant's sex.-White's case, 74 Ala. 31. Proof of a woman's general reputation for want of chastity; when admissible.-Blackman's case, 36 Ala. 295. When burden of proving death of absent husband, on woman claiming such defense.-Cameron's case, 14 Ala. 546. Confessions and admissions by either party, admissible only against party making them. -Lawson's case, 20 Ala. 65. Unless made in presence of the other.-Gore's case, 58 Ala. 391. Declarations, unconnected with conversations or admissions offered by the state, inadmissible.-Lawson's case, 20 Ala. 65. Conversations during childbirth, in presence of female, in which she took no part, inadmissible against her.-Ib. Direct fact of adultery need not be proved; presumptive or circumstantial evidence sufficient.-Ib.; Collins's case, 14 Ala. 608. See, also, Glaze's case, 9 Ala. 283; Crowley's case, 13 Ala. 172. One party competent witness for the other, to be weighed by the jury.-Crowley's ease, 13 Ala. 172. Husband cannot testify against wife, or her paramour, for this offense.-Cotton's case, 62 Ala. 12. If proof shows both parties unmar |