Obstructing, Injuring, Etc.

nel between the upper limits of the port of Mobile and the outer bar of the bay or harbor of Mobile, without a permit from the harbor master, or in violation of the rules and regulations of the commissioners of pilotage of the port and harbor of Mobile, is liable to indictment in the city court of Mobile, or circuit court of Mobile county, or any other court of competent jurisdiction, and must, on conviction, be fined not more than ten thousand dollars, and may also be imprisoned in the penitentiary for not more than ten years.

(Feb. 17, 1885, p. 154, § 5.)

7872. (5621) (3886) (4418, 4420) (3737, 3738) (190, 191). Injuring water dams, bridges, canals, road gates, etc.-Any person who willfully injures any milldam, or other dam to create water power, or any embankment necessary to support such dam, or willfully removes, injures, or destroys any lock, bank, culvert, aqueduct, or water weir of any canal, or wantonly obstructs or hinders the free use or navigation of any canal, or wantonly opens any lock gate, puddle gate, culvert gate, or water gate of any canal, or willfully injures or destroys, otherwise than by burning, any public bridge, toll bridge, causeway, turnpike gate, or other gate erected on any road by authority of law, must, on conviction, be fined not less than fifty nor more than five hundred dollars, and may be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than six months; and the fine goes to the injured party. (Form 42 [35].)

(Clay's Digest, p. 418, § 12.) Judicial notice of public rivers; statute declaring stream to be a public highway; prescriptive right to mill dam or other obstruction in river.-Olive v. State, 86 Ala. 88 (5 So. 653). Sufficiency of indictment for destroying public bridge under this section.-Owens's case. 52 Ala. 400. Destroying a bridge to allow passage of a raft, when admis sible as an excuse.-Ib. What no defense.-Ib.

7873. (5622) Trespass after warning on booms, bulkheads, or piles, erected or maintained by riparian proprietors.-Any person who, having been warned within the twelve months next preceding by the owner or proprietor not to do so, trespasses upon any boom, bulkhead, or piles, lawfully erected or maintained in any of the waters of this state by any riparian owner or proprietor, by fastening any boat or other thing thereto, or by making any other use thereof, without first having obtained the consent of such owner or proprietor, or any person who continues to make such use of any such boom, bulkhead, or piles, after being warned by the owner or proprietor thereof to discontinue the same, must, on conviction. be fined not less than ten nor more than one hundred dollars for each day he continues to make such use of such boom, bulk

head, or piles and one-half of the fine must go to the owner or proprietor thereof.

7874. Depositing dead animals and 7875. Polluting water supply of fowls in running streams. town or city.

7874. (5330) (1464) (1728) (4435) Depositing dead animals and fowls in running streams.-Any person who deposits the body of a dead animal or fowl in any running stream must, on conviction, be fined ten dollars; and one-half of the fine must go to the informer. Justices and constables are especially charged with the enforcement of this section.

(Dec. 12, 1892, p. 107; Feb. 15, 1854, p. 57.)

7875. (5331) Polluting water supply of town or city.-It shall be unlawful for any person to knowingly deposit any dead animal or nauseous substance in any source, standpipe, or reservoir, from which water is supplied to any city or town of this state. Any person violating the provisions of this section shall be guilty of a misdemeanor, and, upon conviction, shall be punished by a fine not exceeding five hundred dollars, and may be sentenced to hard labor for the county not exceeding one year.

(Feb. 17, 1897, p. 1281.)

CROSS REFERENCES.

WATERS, WATERCOURSES, RIVERS, STREAMS, BOOMS, ETC.

7876. Selling by false weights and measures.-If any person shall knowingly buy or sell by false weights or measures, he shall be deemed a common cheat, and shall be punished as for a misdemeanor.

Witnesses; Modes of Procuring Their Attendance and Testimony.

ARTICLE 1. WITNESSES; MODES OF PROCURING THEIR ATTENDANCE AND TESTIMONY. 7877-7885.

ARTICLE 2. WITNESSES; DEPOSITIONS TAKEN, WHEN AND How. 7886-7890. ARTICLE 3. PROCEEDINGS AGAINST DEFAULTING WITNESSES. 7891-7893. ARTICLE 4. WITNESSES; THEIR COMPETENCY AND SUFFICIENCY: ACCOMPLICES AND DEFENDANTS. 7894-7900.

ARTICLE 1.

WITNESSES; MODES OF PROCURING THEIR ATTENDANCE AND TESTIMONY.

7877. (5280) (4456) (4918) (4213) (661) Subpoena not issued before arrest or bail.—No subpœna must be issued in a criminal case, unless the defendant is in custody, or has given bail to answer the charge.

7878. (5281) (4457) (4919) (4214) (662) Subpoenas for defendant's witnesses.-If the defendant is in custody, or has

Witnesses; Modes of Procuring Their Attendance and Testimony.

given bail to answer the charge, it is the duty of the clerk of the court in which the prosecution is pending, on his application, to issue subpoenas for such witnesses as he requires, as well during the sitting of the court as in vacation.

7879. (5282) (4458) (4920) (4215) (663) Subpoenas for state witnesses.-The clerk must also issue subpoenas for all witnesses on the part of the state, whose names are so marked on the indictment, if any, and for such other witnesses as the solicitor may direct him to summon.

7880. (5283) (4459) (4921) (4216) (664) Solicitor may issue subpoenas.-The solicitor also has authority to issue subpœnas for witnesses on the part of the state, to appear either before the grand jury, or before any court in his circuit.

7881. (5284) (4460) (4923) Summoning and attendance of witnesses. It is the duty of clerks of the city and circuit courts to subpoena witnesses in causes set for trial to the day fixed for such trial, at the first term that such causes are placed upon the docket; and it shall not be necessary to re-subpœna such witnesses to subsequent terms, but they shall be required to attend at such subsequent terms, upon the day fixed for the trial of such causes, and from day to day of such terms as required by the court until such causes are disposed of.

(Clay's Digest, p. 599, § 3; Feb. 8, 1877, p. 138, § 2.)

7882. (5285) (4461) (4924) (4218) (666) Witnesses to attend on Wednesday, or second Monday, or day case set for trial. Where the term of the court is by law limited to one week, witnesses must be subpoenaed to attend on Wednesday of that week; and where the term is longer than one week, they must be subpoenaed to attend on Monday of the second week; and the criminal docket must, in each case, be taken up on the day on which the witnesses are subpoenaed to attend. When a case is set for trial on a particular day, the witnesses therein must be subpoenaed to attend on such day.

7883. (5286) (4462) (4925) Subpoenaed but once, except on reversal of judgment.-Witnesses subpoenaed are bound to attend from term to term until the case is disposed of; but if a judgment is rendered in the case, which is reversed by the supreme court, new subpoenas must be issued for the state witnesses, and also for the defendant's witnesses on his application.

7884. (5287) (4463) (4926) (4219) (667) Witnesses at special terms. When a special term is directed for the trial of a person charged with a felony, all witnesses must be subpoenaed, or recognized, to attend such special term.

Witnesses; Depositions Taken, When and How.

7885. (5288) (4464) (4922) (4217) (665) Subpoenas; how executed. Subpoenas in criminal cases must be executed upon the witness either personally or by leaving a copy at his place of residence, unless the subpoena is issued during term time, when it must be executed by personal service.

ARTICLE 2.

SECTION.

WITNESSES; DEPOSITIONS TAKEN, WHEN AND HOW. 7886-7890.

7886. Depositions in criminal cases; when taken by defendant. 7887. Affidavit, interrogatories, etc. 7888. When taken by state.

SECTION.

7889. Taken as in civil cases; when

not read.

7890. Deposition of convict for defendant; notice served on solicitor.

7886. (5289) (4465) (4932) (4227) (675) Depositions in criminal cases; when taken by defendant.-The defendant may take the deposition of any witness, who, from age, infirmity, or sickness, is unable to attend court; or who resides out of the state, or more than one hundred miles from the place of trial, computing by the route usually traveled; or who is absent from the state; or where the defense, or a material part thereof, depends exclusively on the testimony of the witness.

The provisions of this article apply to cases pending in court; not to preliminary examinations.-Couch's case, 63 Ala. 163. When no cross-interrogatories have been filed by the state, and the defendant declines to read the deposition, it is not admissible for the proscution.-Anderson's case, 89 Ala. 12 (7 So. 429). Testimony of witnesses on former prosecution, when admissible and how proven on subsequent trial.-Lowe v. State, 86 Ala. 47 (5 So. 435). Failure of minute entry to show formation and showing that grand jurors reduced to fourteen and that § 7283 (5023) was not complied with in making up the deficiency is within the curative power of § 7886 (5289).—Shirley v. State, 144 Ala. 35 (40 So. 269).

7887. (5290) (4466) (4933) (4228) (676) Affidavit, interrogatories, etc.-When the defendant desires to take the deposition of any witness under the provisions of the preceding section, he must make affidavit before some officer authorized to administer oaths, setting forth some one or more of the above causes for taking the deposition, and that the testimony of the witness is material, and must file with the clerk interrogatories to be propounded to the witness; a copy of which interrogatories must be served on the prosecutor, or on the solicitor, if either of them is in the county; and such prosecutor or solicitor may, within ten days thereafter, file crossinterrogatories, to which the defendant may, within a like period of ten days, file rebutting interrogatories; at the expiration of which time, or, if no cross-interrogatories are filed, at the expiration of ten days from the filing of the interrogatories