(w.c.c.)

Live Stock and Sanitary Board.

candies, confections of any kind adulterated by the admixture of terra alba, barytes, talc, or other earthy or mineral substance, or any poisonous colors, flavors, or extracts, or other ingredients injurious to health, shall be guilty of a misdemeanor, and, upon conviction thereof, may be punished by a fine of not less than fifty dollars and not more than five hundred dollars, and may be imprisoned in the county jail, or sentenced to hard labor for the county, for a period not exceeding six months, at the discretion of the court. This section shall be given in charge to the grand jury.

(Feb. 16, 1897, p. 1179.)

7082. Adulterating soda water, etc.-Any person, firm, or corporation that shall manufacture, or knowingly sell or give away, or keep for sale any soda water or other soft drink or beverage sweetened or colored with any syrups or coloring matter made from any coal tar preparation or other mineral substance, or sweetened with any other than pure fruit syrups or pure cane or beet sugar, shall be guilty of a misdemeanor, and, upon conviction thereof, may be punished by a fine of not less than ten nor more than two hundred dollars.

Mar. 12, 1907, p.

359, 8,

ARTICLE 3.

LIVE STOCK SANITARY BOARD. 7083.

7083. Violations of health and quarantine laws of live stock, penalty for. Any person, firm, or corporation who shall drive, 9, and 11 carry, or transport, or cause to be driven, carried, or transported, any live stock in violation of the quarantine laws of this state, or in violation of the orders or directions of the state live stock sanitary board, or of the state veterinarian or his assistants; or who brings, or causes to be brought into this state any live stock without being accompanied by a health certificate for the live stock so brought into the state, as provided by law; or who fails and refuses, without just cause and legal excuse, to cleanse and disinfect any infested or infected place in which live stock are kept, when directed or requested by the state live stock board, the state veterinarian or assistants so to do; or who resists or interferes with such board, state veterinarian or assistants, or state live stock inspector in the execution of his or their duties, or on account of the execution of his or their duties; or who otherwise violates any of the quarantine laws of this state for live stock, or who fails or refuses without just cause or legal excuse to perform any of the duties required of him by such laws; or who impedes or prevents, or attempts to so impede or pre

Murder.

vent the execution of such laws, shall be guilty of a misdemeanor, and, upon conviction, shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars, or by imprisonment for not less than one month nor more than six months.

CROSS REFERENCES.

HEALTH, QUARANTINE, AND FOOD; PENAL STATUTES CON-
CERNING (Criminal Code)

...7049-7083

7084. (4854) (3725) (4295) (3653) (111) Murder; different degrees of. Every homicide, perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or the attempt to perpetrate, any arson, rape, robbery, or burglary, or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other

39-AC-VOL. III

Murder.

than him who is killed; or perpetrated by any act greatly dangerous to the lives of others, and evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life, is murder in the first degree; and every other homicide, committed under such circumstances as would have constituted murder at common law, is murder in the second degree. (Forms 76, 77 [63].)

(Clay's Digest, pp. 412-414, § § 1 and 2.) Felonious homicide generally; its different degrees stated.-Mitchell's case, 60 Ala. 26; Fields's case, 52 Ala. 348; Myers's case, 62 Ala. 599; Ex parte Brown, 65 Ala. 446. Statute has classified, but not reduced offense of common-law murder.-Mitchell's case, 60 Ala. 26; Brown's case, 109 Ala. 70 (20 So. 103); Judge's case, 58 Ala. 406; Ex parte Nettles, Ib. 268; McManus's case, 36 Ala. 285; Fields's case, 52 Ala. 348; Arp's case, 97 Ala. 5 (12 So. 301). That deceased was attempting to take a mule by force from the defendant will not justify defendant in killing him.-Fuller v. State, 115 Ala. 61 (22 So. 491). Several defendants, no inherent right to joint trial.-Wilkins v. State, 112 Ala. 55 (21 So. 56). Defendant in his own behalf cannot testify as to his motives in killing, but he may be cross-questioned as to such motives.-Linnehan v. State, 120 Ala. 293 (25 So. 6). An assault which may be resisted to the taking of life must be of a character likely to produce death or grievous bodily harm.-Evans v. State, 120 Ala. 269 (25 So. 175); Jackson v. State, 94 Ala. 85 (10 So. 509). Statements or declarations by defendant to show animus toward deceased.Linnehan v. State, 113 Ala. 70 (21 So. 497). What not unwarranted separation of jury.-Nabors v. State, 120 Ala. 323 (25 So. 529). One who arms himself with a deadly weapon to commit a wrongful act with intent to take life of another if necessary to save his own is guilty of murder.-Dabney v. State, 113 Ala. 38 (21 So. 211). Conviction of murder in second degree acquittal of murder in first degree for same act.-Burton v. State, 115 Ala. 1 (22 So. 585). Effect of defendant voluntarily surrendering himself to officer.-Cobb v. State, 115 Ala. 18 (22 So. 506). Pendency of former indictment not good in abatement.-Bell v. State, 115 Ala. 25 (22 So. 526). Consent of defendant to be tried after arraignment.-Sudduth v. State, 124 Ala. 32 (27 So. 487). Severance, when right must be claimed.-Miller v. State, 130 Ala. 1 (30 So. 379). Can defendant waive special venire?—Bankhead v. State, 124 Ala. 14 (26 So. 979). Continuance in discretion of court.—Kilgore v. State, 124 Ala. 24 (27 So. 4); Winter v. State, 123 Ala. 1 (26 So. 949). Evidence examined and held to show that the defendant was the aggressor and could not set up self-defense.

Burton v. State, 141 Ala. 32 (37 So. 435); Gilmore v. State, 141 Ala. 51 (37 So. 359). Former conviction for lower degree to be an acquittal of higher degree must be specially pleaded.-Linnehan v. State, 116 Ala. 471 (22 So. 662). Presence of defendant not necessary at time and place of drawing special venire.-Hurd v. State, 116 Ala. 440 (22 So. 993); Frazier v. State, 116 Ala. 442 (23 So. 134). A gunshot wound through the lungs is a dangerous wound.-Daughdrill v. State, 113 Ala. 7 (21 So. 378). Identifying deceased where body was found in river.-Hunt v. State, 135 Ala. 1 (33 So. 329). Killing overseer of public road; conspiracy between defendant and his brother. Sanders v. State, 134 Ala. 74 (32 So. 654). Defendant cannot exculpate himself by subsequent acts or declarations.—Ferguson v. State, 134 Ala. 63 (32 So. 760). Defendant declining to testify no improper inference.Thomas v. State, 139 Ala. 80 (36 So. 734). Demand for severance, when too late.-Austin v. State, 139 Ala. 14 (35 So. 879); Givens v. State, 109 Ala. 39 (19 So. 974); Hudson v. State, 137 Ala. 60 (34 So. 854). Agreement between counsel not binding upon jury.-Durrett v. State, 133 Ala. 119 (32 So. 234). Defendant as witness for himself, cross-examination of.-Smith v. State, 137 Ala. 22 (34 So. 396). Imminent peril to life or limb.-Kennedy v.

Murder.

State, 140 Ala. 1 (37 So. 90). Erroneous treatment of a dangerous wound affords the defendant no protection.-Daughdrill v. State, 113 Ala. 7 (21 So. 378). Formed design is not the equivalent of a willfull, deliberate and premeditated killing.-Wilson v. State, 128 Ala. 17 (29 So. 569). A formed design unlawfully to do mischief or injury to another is malice.-Stoball v. State, 116 Ala. 454 (23 So. 162). Formed design not equivalent of deliberation.-Martin v. State, 119 Ala. 1 (25 So. 255). A design or intention to take life always a question for the jury.-Dennis v. State, 112 Ala. 64 (20 So. 925); Hornsby v. State, 94 Ala. 55 (10 So. 522). Formed design, duration of.-Bondurant v. State, 125 Ala. 31 (27 So. 775). Accidental killing.Barnes v. State, 134 Ala. 36 (32 So. 670). Means by which killing was perpetrated.-Eatman v. State, 139 Ala. 67 (36 So. 16). Indictment charging death produced by knife, evidence of instrument of like kind sufficient.Jones v. State, 137 Ala. 12 (34 So. 681). Killing by poisoning.-Brunson v. State, 124 Ala. 37 (27 So. 410). Death produced by choking and cramming a handkerchief in mouth.-Vaughn v. State, 130 Ala. 18 (30 So. 669). Killing white man by a gunshot fired recklessly into crowd of negroes.-Bailey v. State, 133 Ala. 155 (32 So. 57). Death by administering morphine as poison.— Scott v. State, 141 Ala. 1 (37 So. 357). Allegation that killing was by means unknown to the grand jury.-Newell v. State, 115 Ala. 54 (22 So. 572). Infanticide, sufficiency of indictment and proof; death of infant caused by beating mother.-Clarke v. State, 117 Ala. 1 (23 So. 671). Averment and proof that weapon which caused death was unknown.-Terry v. State, 120 Ala. 286 (25 So. 176). Killing by unlawfully pointing a loaded pistol.— Barnes v. State, 134 Ala. 36 (32 So. 670). Death caused by obstruction placed on railroad track.-Presley v. State, 59 Ala. 98. Killing by racing horses along public highway.-Thompson v. State, 131 Ala. 18 (31 So. 725). Elements of murder defined.-Kilgore v. State, 124 Ala. 24 (27 So. 4). Murder in first degree must be willful, deliberate, malicious, and premeditated, and these essential constituents must concur and coexist.-Brown's case, 109 Ala. 70 (20 So. 103); Mitchell's case, 60 Ala. 26; Lang's case, 84 Ala. 1 (4 So. 193); Ex parte Sloane, 95 Ala. 22 (11 So. 114); Ezell's case, 102 Ala. 101 (15 So. 810); Smith's case, 68 Ala. 424; Ex parte Brown, 65 Ala. 446; Holley's case, 75 Ala. 14. Words "willful, deliberate, malicious and premeditated" grouped under the phrase "formed design.”—Mitchell's case, 60 Ala. 26. But this definition has been criticised and qualified.-Hornsby's case, 94 Ala. 55 (10 So. 522); Domingus's case, 94 Ala. 9 (11 So. 190); Miller's case, 107 Ala. 40 (19 So. 37); Burton's case, Ib. 108 (18 So. 284); Amos's case, 83 Ala. 1 (3 So. 749); Floyd's case, 82 Ala. 16 (2 So. 683). Deliberate and premeditated defined.-Dunn v. State, 143 Ala. 67 (39 So. 147). "Deliberation" and "premeditation" means that the slayer intends before the blow is delivered that he will strike, and that death will be the result.-Daughdrill v. State, 113 Ala. 7 (21 So. 378). A single instant or a moment may be sufficient for deliberation or premeditation.-Daughdrill v. State, 113 Ala. 7 (21 St. 378); Mitchell v. State, 60 Ala. 26; Cleveland v. State, 86 Ala. 1 (5 So. 426). Deliberation and premeditation not elements of murder in the second degree. Golson v. State, 124 Ala. 8 (26 So. 975). Premeditation defined.Webb v. State, 135 Ala. 36 (33 So. 487). Premeditation and deliberation defined.-Daughdrill's case, 113 Ala. 7 (21 So. 378); Cleveland's case, 86 Ala. 1 (5 So. 426); Lang's case, 84 Ala. 1 (4 So. 193); Mitchell's case, 60 Ala. 26; Brown's case, 65 Ala. 446. Convict killing guard.-Stone v. State, 137 Ala. 1 (34 So. 629). Willful defined.-Mitchell's case, 60 Ala. 26; Lang's case, 84 A la. 1 (4 So. 193). Murder not always willful, nor is every willful killing murder.-Bob's case, 29 Ala. 20. Malice defined.-Mitchell's case, 60 Ala. 26; Holley's case, 75 Ala. 14; Hadley's case, 55 Ala. 31; Cribbs's case, 86 Ala. 613 (6 So. 109); Lang's case, 84 Ala. 1 (4 So. 193); Boulden's case, 102 Ala. 78 (15 So. 341). Distinguishes murder from every other form of homicide. Jackson's case, 74 Ala. 26; Roberts's case, 68 Ala. 156; De Arman's case, 77 Ala. 10; Smith's case, 83 Ala. 26 (3 So. 551). Every unexplained homicide is presumptively felonious.-Hadley's case, 55 Ala. 31; Clements's case, 50 Ala. 117; Perry's case, 94 Ala. 25 (10 So. 650). Malice

Murder.

presumed from use of deadly weapon, unless the evidence which proves the killing rebuts the presumption.-Hornsby's case, 94 Ala. 55 (10 So. 522); Compton's case, 110 Ala. 24 (20 So. 119); Robinson's case, 108 Ala. 14 (18 So. 732); Miller's case, 107 Ala. 40 (19 So. 37); Gibson's case, 89 Ala. 121 (8 So. 98); Warrick's case, 73 Ala. 57; Sylvester's case, 71 Ala. 17; s. c., 72 Ala. 201; De Arman's case, Ib. 351; Commander's case, 60 Ala. 1; Hadley's case, 55 Ala. 31; Eiland's case, 52 Ala. 322; Roberts's case, 68 Ala. 156; Grant's case, 62 Ala. 233; Williams's case, 77 Ala. 53; Wilkins's case, 98 Ala. 1 (13 So. 312); Mitchell v. State, 129 Ala. 23 (30 So. 348); Harkness v. State, 129 Ala. 71 (30 So. 73). If facts and circumstances attending the killing are in evidence, the inference of malice must be drawn from whole evidence, and by the jury.—Eiland's case, 52 Ala. 322; Hornsby's case, 94 Ala. 55 (10 So. 522). Deadly weapon defined.-Sylvester's case, 72 Ala. 201. Generally to be determined by court.-Ib. But see Thomas's case, 103 Ala. 18 (16 So. 4). See, also, McKee's case, 82 Ala. 32 (2 So. 451); Dolan's case, 81 Ala. 11 (1 So. 707); McDaniel's case, 76 Ala. 1; Webb's case, 100 Ala. 47 (14 So. 865); Ex parte Nettles, 58 Ala. 268. An oak stick may be a deadly weapon; one may be guilty of homicide by a blow not of itself mortal which accelerates death.-Winter v. State, 123 Ala. 1 (26 So. 949). Homicides which are murder; by poison and lying in wait.-Mitchell's case, 60 Ala. 26. See, also, Johnson's case, 17 Ala. 618. Killing in attempting felonies named is murder in first degree regardless of malice or specific intent to kill.-Kilgore's case, 74 Ala. 1; Fields's case, 52 Ala. 348. Killing one person by blow aimed at another. Bob's case, 29 Ala. 20; Tidwell's case, 70 Ala. 33; Clarke's case, 78 Ala. 474; Murphy's case, 108 Ala. 10 (18 So. 557). Killing innocent person under duress.-Arp's case, 97 Ala. 5 (12 So. 301). Homicide perpetrated by act greatly dangerous to the lives of others.-Mitchell's case, 60 Ala. 26. As to throw cars from track.—Ib.; Presley's case, 59 Ala. 98. And to fire pistol at night through window of lighted room.-Washington's case, 60 Ala. 10. Killing to prevent mere trespass to person or property.-Jones's case, 76, Ala. 8; Harrison's case, 24 Ala. 67; Simpson's case, 59 Ala. 1; Carroll's case, 23 Ala. 28; Oliver's case, 17 Ala. 587; Noles's case, 26 Ala. 31. Killing person charged with misdemeanor who flees from arrest.-Handley's case, 96 Ala. 48 (11 So. 322); Williams's case, 44 Ala. 41; Clement's case, 50 Ala. 117. Killing one who interferes to prevent a felony.-Dill's case, 25 Ala. 15. Unintentional homicide resulting from an attempt to commit a felony.-Isham's case, 38 Ala. 213. Where mutual blows pass.-Nettles's case, 58 Ala. 268. Death caused by excessive resistance of an assault. Judge's case, 58 Ala. 406. Where two fight by mutual consent.See Brown's case, 74 Ala. 478; Cate's case, 50 Ala. 166. Killing in melee.— Smith's case, 88 Ala. 73 (7 So. 52). Murder in second degree is an unlawful killing with malice, but without deliberation or premeditation.—McQueen's case, 103 Ala. 12 (15 So. 824); Ward's case, 96 Ala. 100 (11 So. 217); Ezell's case, 102 Ala. 101 (15 So. 810); Fields's case, 52 Ala. 348. When committed without intent to kill.-Nutt's case, 63 Ala. 180. All common-law murders not included in statute.-Mitchell's case, 60 Ala. 26. Specific intention to kill not ingredient of murder in the second degree.-Bailey v. State, 133 Ala. 155 (32 So. 57). Manslaughter in the first degree is the result of passion, suddenly engendered by present provocation which, in no case, must be less than an assault.-Mitchell's case, 60 Ala. 26; Cates's case, 50 Ala. 166; McNeezer's case, 63 Ala. 169. There must be an intention to kill, or an act of violence from which ordinarily death or great bodily injury may result.-Lewis's case, 96 Ala. 6 (11 So. 259); Harrington's case, 83 Ala. 9 (3 So. 425) (qualifying McManus's case, 36 Ala. 285); Williams's case, 83 Ala. 16 (3 So. 616); White's case, 84 Ala. 421 (4 So. 598); McManus's case, 36 Ala. 285; Collier's case, 69 Ala. 247; Wills's case, 74 Ala. 21; Brown's case, 65 Ala. 446. There must be criminal intent or negligence so gross as to imply it.-Hampton's case, 45 Ala. 82; White's case, 84 Ala. 421 (4 So. 598). Death caused by intentional use of a deadly weapon, not in self-defense, can never be less than manslaughter in the first degree.-Collier's case, 69 Ala. 247; Ex parte Brown, 65 Ala. 446; McManus's case, 36 Ala. 285; Mitchell's case, 60 Ala. 26; Fields's case, 52 Ala. 348; Oliver's case, 17 Ala. 587. Man