Threats to Burn Buildings or Agricultural Produce.

verdict under indictment charging arson in any degree.-Ib. The indictment must aver the statutory constituents-insurance against fire and the intent to charge, injure or defraud the insurer.-Ib.; Martin's case, 29 Ala. 30; s. c., 28 Ala. 71.

6301. The relation of husband and wife or landlord and tenant no excuse or defense in actions for arson.-Any person who willfully sets fire to or burns the property of his wife or her husband, or of his landlord, without the express consent of the owner to so burn such property, shall be guilty of arson in the same manner and to the same degree, and shall be punished in the same manner and in the same degree as if the relation of husband and wife or landlord and tenant did not exist.

ARTICLE 2.

THREATS TO BURN BUILDINGS OR AGRICULTURAL PRODUCE. 6302-6305.

SECTION.

6302. Threatening to burn house, store, shop, barn, or other building, or any agricultural produce.

SECTION.

6303. Willful and malicious setting
fire to or burning fences,
etc.

6304. Setting fire to woods.

6305. Taking from fence for fuel.

6302. (5604) Threatening to burn house, store, shop, barn, or other building, or any agricultural produce.-Any person who, knowing the contents thereof, sends, delivers, or causes to be received by another, or posts on the premises of another, any letter or writing, or any verbal message, threatening to burn, injure, or destroy, conditionally or unconditionally, any house, store, shop, barn, gin, or other building, or any house or pen containing corn or cotton or other agricultural produce, or any agricultural produce, whether in or under any building or not, must, on conviction, be imprisoned in the penitentiary for not less than two, nor more than ten years.

6303. Willful and malicious setting fire to or burning fences, (r.c.c.) etc.-If any person shall willfully and maliciously set fire to or burn the fences, or stacks, piles or shocks of corn, cotton, fodder, grain, straw, or hay, lumber or other building material, or crops not gathered in the field of another, he shall be punished by imprisonment in the penitentiary for not less than one year nor longer than five years.

6304. Setting fire to woods.-If any person shall willfully and maliciously set on fire, or cause to be set on fire, any timber, woods, lands, or marshes, so as to cause loss or injury to another, he shall be guilty of a misdemeanor.

6305. Taking from fence for fuel.-If any person shall wrongfully take from the fence or enclosure of another, any rail or

other material of which it is made, for the purpose of using the same for fuel, he shall be guilty of a misdemeanor.

6306. (4343) (3747) (4318) Punishment of assaults, and assaults and batteries.-Any person who commits an assault, or an assault and battery, on another, 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. (Form 11 [9].)

Any touching of another in rudeness or anger is an assault and battery.— Jacobi's case, 133 Ala. 1 (32 So. 158). The proposition that the husband can chastise his wife is a relic of barbarism; it is not now and never was the law of Alabama.-Fulgham v. State, 46 Ala. 143. A complaint and affidavit charging the defendant with assault and battery with a weapon "or affray," does not invalidate it.-Louis v. State, 112 Ala. 52 (21 So. 64). A verdict as follows: "We, the jury, find the defendant guilty and assess a fine of $10 and sentence to the county for thirty days' labor," is not void; the last phrase is surplusage, the jury having no authority to impose hard labor.-Taylor v. State, 114 Ala. 20 (21 So. 947.) Merc declaration or statement by the clerk of the action of the court is not a sufficient judgment to support a sentence.-Marks v. State, 131 Ala. 44 (31 So. 18). Where defendant is at fault in bringing on the difficulty, he cannot introduce evidence as to dangerous character of person assaulted.-Rufus v. State, 117 Ala. 131 (23 So. 144); Brown's case, 74 Ala. 42. Evidence admissible to show motive of assault; competency of evidence showing surprise.— Thomas v. State, 117 Ala. 178 (23 So. 665). Each alternative charge in the indictment must describe the means unless the means was unknown.-Rogers v. State, 117 Ala. 192 (23 So. 82). An indictment charging assault with rock or brick or other missile of like kind is bad on demurrer; evidence that person assaulted used very insulting language and assumed threatening manner as mitigating circumstances.-Rogers v. State, 117 Ala. 192 (23 So. 82). Where an affidavit charges that affiant says on oath that he has probable cause for believing and does believe that within twelve months before the making of affidavit in said county, J. F. assaulted E. W. with a weapon, held sufficient.—

Fuller v. State, 117 Ala. 200 (23 So. 73). A mere failure to punctuate cannot affect the legal significance of the complaint.-Fuller v. State, 117 Ala. 200 (23 So. 73). Violently wrenching gun from the hands of another may be an assault. Scott v. State, 118 Ala. 115 (24 So. 414). That person assaulted was attempting to get a gun, held part of the res gestae.-Smith v. State, 123 Ala. 64 (26 So. 641). Variance, an indictment or complaint charging a simple assault or that defendant did assault and beat a named person, may authorize a conviction for an assault with a weapon.-Smith v. State, 123 Ala. 64 (26 So. 641). Kind or character of dog killed immaterial in prosecution for an assault growing out of the killing of a dog.-Rogers v. State, 126 Ala. 40 (28 So. 619). Taking improper liberties with a female constitutes an assault.-Walker v. State, 132 Ala. 11 (31 So. 557); Balkum v. State, 115 Ala. 117 (22 So. 532). Justification upon ground that defendant's son had been punished by the person assaulted as a school teacher.-Walkley v. State, 133 Ala. 183 (31 So. 854). Sufficiency of evidence as to identity of person assaulted.-Walker v. State, 134 Ala. 86 (32 So. 703). When self-defense cannot be invoked; evidence of abusive language.-Johnson v. State, 136 Ala. 76 (34 So. 209). When two persons meet, both using insulting words and fight willingly, both are guilty equally, and it is immaterial who commences the quarrel.-Johnson v. State, 136 Ala. 76 (34 So. 209); Howell's case, 79 Ala. 283. To constitute an assault, there must be an attempt, though interrupted, to inflict personal violence.-Blackwell's case, 9 Ala. 79; Johnson's case, 35 Ala. 363; Shaw's case, 18 Ala. 547. An intentional attempt to strike, within striking distance.-Lane's case, 85 Ala. 11 (4 So. 730). Held, an assault to cause a person to give up his gun through fear of bodily harm.-Balkum's case, 40 Ala. 671. Also raising a stick near enough and intending to strike, causing the party to strike in selfdefense.-Johnson's case, 35 Ala. 363. Also to attempt to strike in striking distance, or to shoot in shooting distance.-Gray's case, 63 Ala. 66. An assault and battery, to unlawfully take and detain another without his consent.-Long v. Rogers, 17 Ala. 540. Also for hirer to chastise convict.Prewitt's case, 51 Ala. 33. Also to maltreat a convict.-Sanders's case, 55 Ala. 43. Also for husband to whip his wife.-Robbins' case, 20 Ala. 36. Husband no authority to inflict moderate correction on his wife; the authority for "wife-whipping" is a relic of barbarism.-Fulgham's case, 46 Ala. 143, eiting Turner v. Turner, 44 Ala. 437; Goodrich v. Goodrich, Ib. 670. To constitute assault with gun or pistol, it must be presented within a dangerous distance. Tarver's case, 43 Ala. 354; Lawson's case, 30 Ala. 14. A party may resist an officer, and use force sufficient only to prevent levying process on his own property when process is against third party.-Smith's case, 105 Ala. 136 (17 So. 107). An officer is guilty of an assault if he strikes A. while attempting to levy process against B. on A.'s property.-Smith's case, 105 Ala. 136 (17 So. 107). Party has right to retake his property unlawfully held; but if he do so in an angry manner, and use more force than necessary, he is guilty of assault.-Bonner's case, 97 Ala. 47 (12 So. 408). Indictment may charge in one count simple assault, and in another assault with weapon.-Ib. The wife may be compelled to testify against the husband for assault committed on her by him.—Johnson's case, 94 Ala. 53 (10 So. 427). In prosecution against policeman for assault in making arrest, the judgment in police court in case against party arrested, is not admissible.-Patterson's case, 91 Ala. 58 (8 So. 756); Haas v. Taylor, 80 Ala. 459. Policeman in making arrest should only use such force as is necessary to protect himself or parties assisting in the arrest.—Patterson's case, 91 Ala. 58 (8 So. 756). A school teacher, or one standing "in loco parentis," has the right, in the exercise of sound discretion, to moderately chastise pupil under his charge.-Boyd's case, 88 Ala. 169 (7 So. 268); McCormack's 'case, 102 Ala. 156 (15 So. 438); Dean's case, 89 Ala. 46 (8 So. 38). But teacher or parent cannot deal brutally with children, so as to endanger life, or inflict cruel punishment.-Boyd's case, 88 Ala. 169 (7 So. 268); Dean's case, 89 Ala. 46 (8 So. 38). A witness, not an expert, cannot give his opinion as to whether an injury is permanent.-Dean's case, 89 Ala. 46 (8 So. 38). Neither mistake of identity of person assaulted nor drunkenness of accused is any defense for assault.-Carter's case, 87 Ala. 113 (6 So. 356). Though affidavit names no party assaulted, the information

may supply it and there is no variance.-Little's case, 89 Ala. 99 (8 So. 82). Party who uses first words of insult cannot justify his subsequent assault, unless he withdraws from combat.-Howell's case, 79 Ala. 283. Party who merely answers a verbal insult with another does not deprive himself of selfdefense, unless he fights willingly.-Ib. Pointing an unloaded gun at another, though party does not know that it was not loaded, is not an assault.-Chapman's case, 78 Ala. 463. A charge "that the least touching of another person willfully" is a battery, is erroneous.- -Alston's case, 109 Ala. 51 (20 So. S1). Questions so framed that the answer may tend to criminate witness need not be answered.-Ib. All parties are liable as accomplices for subsequent acts growing out of common design, but not for acts growing out of particular malice or design.-Ib. Justice of the peace no jurisdiction of assault with weapon, and a conviction by him is void.-Danzey's case, 68 Ala. 296. No defense, if person assaulted struck first blow, if retaliation disproportionate or excessive.-Mooney's case, 33 Ala. 419; Riddle's case, 49 Ala. 389. Selfdefense cannot be invoked if accused provoked the difficulty.-Johnson's case, 69 Ala. 253; Page's case, Ib. 229. No excuse that person assaulted had possession, and refused to surrender defendant's property, which had been stolen. -Hendrix's case, 50 Ala. 148. Husband may prove wife's conduct in mitigation.-Robbins's case, 20 Ala. 36. A pending civil action may be proved in mitigation.-Autery's case, 1 Stew. 399. Also remark of the accused at the time, as part of res gestae.-Riddle's case, 49 Ala. 389; Blackwell's case, 9 Ala. 79; Johnson's case, 35 Ala. 363. An owner of goods may, after notice, employ reasonable force to prevent an unlawful levy.-Johnson's case, 12 Ala. 840. As to what circumstances inadmissible to justify or mitigate.-Rosenbaum's case, 33 Ala. 354; Ward's case, 28 Ala. 53; Prewitt's case, 51 Ala. 33; Hendrix's case, 50 Ala. 148. Code form of indictment sufficient.-Thompson's case, 25 Ala. 41. Means used may be alleged in alternative.-Murdock's case, 65 Ala. 520. Specific intent or circumstances of aggravation may be alleged.Ib. 520. Allegation of assault with a weapon must be proved, else variance is fatal.-Johnson's case, 35 Ala. 363; Walker's case, 73 Ala. 17. Indictment charging assault with both a stick and a knife; when prosecutor need not elect.-Johnson's case, 35 Ala. 363. Conviction for assault and battery may be had under indictment for rape.-Richardson's case, 54 Ala. 158. Voluntary drunkenness can never justify an assault and battery.-Englehardt's case, 88 Ala. 100 (7 So. 154).

6307. (4344) (3748) (4315) (3672) (134) Assault and battery with cowhide, etc., having pistol, etc., to intimidate.—Any person who assaults and beats another with a cowhide, stick, or whip, having in his possession at the time a pistol, or other deadly weapon, with intent to intimidate and prevent the person assaulted from defending himself, must, on conviction, at the discretion of the jury, be fined not more than two thousand dollars, or be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than twelve months. (Form 12 [10].)

(Clay's Digest, p. 416, § 31.) When indictment insufficient for this offense, held good for a simple assault and battery.-Higginbotham's case, 50 Ala. 133.

6308. (4345) (3749) (4900) (4198) (646) Evidence or abusive words to extenuate or justify.-On the trial of any person for an assault, an assault and battery, or an affray, he may give in evidence any opprobrious words or abusive language used by the person assaulted or beaten at or near the time of the assault or affray; and such evidence shall be good in extenuation or justification, as the jury may determine.

Where two persons meet, both use insulting language, and they fight willingly, both are equally guilty and it is immaterial who commences the quarrel.-Johnson v. State, 136 Ala. 76 (34 So. 209). Statute no application to civil suits.—Mitchell v. Gambill, 140 Ala. 316 (37 So. 290). Statute limited to criminal trials for assaults, assaults and batteries, and affrays.-Elmore v. State, 140 Ala. 184 (37 So. 156). Opprobrious words no excuse for homicide. -Taylor v. State, 48 Ala. 180. Intended as a shield and not as a sword.Brown's case, 74 Ala. 42. Where there is evidence tending to show that assault was provoked by opprobrious words, it is error for court to refuse to instruct jury that such words may justify or extenuate the offense.Spigner's case, 103 Ala. 30 (15 So. 892). Where the assault is admitted, and accused relies on opprobrious words for justification, the burden to show this is on him, and the court in charge may assume the assault.-Ib. The statute applies only to assaults, or assaults and batteries, not to felonies or homicides. Prior's case, 77 Ala. 56. Violent character of person assaulted not admissible when defendant was the aggressor.-Brown's case, 74 Ala. 42.

6309. (4346) (3751) (4314) (3670) (128) What assaults or attempts felonies.-Any person who commits an assault on another, with intent to murder, maim, rob, ravish, or commit the crime against nature, or who attempts to poison any human being, or to commit murder by any means not amounting to an assault, must, on conviction, be punished by imprisonment in the penitentiary for not less than two, nor more than twenty years. (Forms 14, 15, 16, 17 [12, 13, 14, 15].)

At one time punishable by being amerced of damages in such sum as the jury may assess and by imprisonment not to exceed one year and required give security for good behavior for six months.-Toulmin's Digest, p. 206, § 5. (Aikin's Digest, p. 102, § 6; Clay's Digest, p. 416, § 30.) Any touching of one person by another in rudeness or anger is an assault and battery; and every assault and battery includes an assault; to constitute an assault with intent to ravish, the perpetrator need not intend that this accomplished purpose would be rape.-Jacobi v. State, 133 Ala. 1 (32 So. 158). Evidence examined and held not sufficient.-Simmons v. State, 145 Ala. 61 (40 So. 660). Assault to murder, is with the intent, unlawfully and maliciously, to kill the person assaulted.-Washington's case, 53 Ala. 29; Burns's case, 8 Ala. 313; Moore's case, 18 Ala. 532; Tarver's case, 43 Ala. 354; Ogletree's case, 28 Ala. 693; Meredith's case, 60 Ala. 441; Simpson's case, 59 Ala. 1. Is a common-law offense, statute merely changing the punishment.-Meredith's case, 60 Ala. 441. Attempt not equivalent to intent.— Marshall's case, 14 Ala. 411. Intent to kill not equivalent to intent to murder. Crawford's case, 86 Ala. 16 (5 So. 651); Williams's case, 77 Ala. 53. Party may be guilty without knowing the person assaulted.—Washington's case, 53 Ala. 29. Need not be a specific intent, as contradistinguished from the intent to be implied by the jury from the attendant circumstances.Meredith's case, 60 Ala. 441. An intent to take life must be proved; but, like the malicious intent in murder, may be inferred by the jury from the use of a deadly weapon, the character of the assault, and other attendant circumstances.—Walls's case, 90 Ala. 618 (8 So. 680), qualifying Smith's case, 88 Ala. 23 (7 So. 103); Moore's case, 18 Ala. 532; Allen's case, 52 Ala. 391; Meredith's case, 60 Ala. 441; Lane's case, 85 Ala. 11 (4 So. 730); Jolly's case, 94 Ala. 19 (10 So. 606); Jackson's case, 94 Ala. 85 (10 So. 509); Jones's case, 96 Ala. 101 (11 So. 399); Ellis's case, 105 Ala. 72 (17 So. 119). Hence charges requiring an acquittal unless the jury find a specific intent to murder, are misleading and properly refused.-Cases last cited. Where there is evidence of an assault upon the particular person named in the indictment, the determination of guilt or innocence of the felony necessitates the inquiry, whether, if death had ensued, the offense would have been murder in either degree.-McCormack's case, 102 Ala. 156 (15 So. 438);