4314. Appeal in habeas corpus cases.-Any party aggrieved by the judgment on the trial of a habeas corpus may appeal to the supreme court; and when, on habeas corpus, any person held in custody under a charge or conviction for crime, or for extradition as a fugitive from the justice of another state, is discharged from such custody; or when any person held in custody under an indictment by a grand jury charging him with a capital offense is admitted to bail, the solicitor or other prosecuting officer or attorney may take an appeal in behalf of the State to the supreme court; and in such cases the judgment must be suspended pending the appeal; but, except in capital cases, the party may give bail, with sufficient sureties, conditioned that he will appear before such court or officer as may be prescribed by the judge or chancellor, and abide the judgment rendered. When an appeal is taken under this section, the clerk of the court in which the record of the judgment appealed from may be, must transmit without delay a transcript of the record and certificate of appeal to the supreme court.

4315 (4515). Appeal by State when statute declared unconstitutional.-In all criminal cases when the act of the legislature under which the indictment or information is preferred is held to be unconstitutional, the solicitor may take an appeal in behalf of the State to the supreme court, which appeal shall be certified as other appeals in criminal cases; and the clerk must transmit without delay a transcript of the record and certificate of appeal to the supreme court.

Bauerman's case, 72 Ala. 252; Leach's case, 75 Ala. 36; Agee's case, 83 Ala. 110; Harrub's case, 95 Ala. 176.

4316. Limitation of appeals.-Appeals under this chapter, when taken from a judgment of conviction for an offense, must be taken within one year, and in all other cases within thirty days, from the rendition of the judgment.

4317. Bills of exception.-The provisions of this Code relating to the time and manner of taking, signing and establishing bills of exceptions in civil causes apply to criminal cases, so far as applicable. Ex parte Cameron, 81 Ala. 87.

4318 (4511) (4980) (4304) (753). In case of felony, judgment rendered and execution suspended pending appeal.-When any question of law is reserved in case of a felony, and it shall be made known to the court that the defendant desires to take an appeal to the supreme court, judgment must be rendered against the defendant, but the execution thereof must be suspended pending the appeal, and the defendant held in custody.

In the absence of an order of suspension, sentence goes into immediate operation. Ex parte Goucher, 103 Ala. 305.

4319 (4512) (4981) (4305) (754). In case of misdemeanor judgment rendered, execution thereof suspended and defendant bailed or held in custody.-When such question is reserved in case of a misdemeanor, and it shall be made known to the court that the defendant desires to take an appeal to the supreme court, judgment must be rendered on the conviction, but the execution thereof must

be suspended pending the appeal. In such case the defendant may give bail, with sufficient sureties, conditioned that he will appear and abide the judgment; and failing to give such bail, he must be committed to jail, but may give such bail at any time pending the appeal.

What will discharge bail and how pleaded.-Williams's case, 55 Ala. 71.

4320. Defendant may confess judgment for fine and costs with stay of execution, etc.-In the case of a misdemeanor the defendant may confess judgment, with sufficient sureties, for a fine and costs. as if no appeal was taken, but execution thereon must be suspended pending the appeal; and if the judgment of conviction is reversed the confessed judgment is thereby vacated; but if the judgment of conviction is affirmed, or the appeal is dismissed, execution on such confessed judgment may issue at once. Such confession of judgment does not avoid the necessity for giving bail as provided in the preceding section.

Ex parte Newton, 94 Ala. 431; Burk's case, 71 Ala. 377.

4321 (4513) (4982) (4306) (755). Effect of undertaking when appeal not sustained.—When the defendant in a case of misdemeanor is sentenced to hard labor or imprisonment and gives bail pending the appeal, and the judgment of conviction is affirmed or the appeal is dismissed, he is bound by the undertaking of bail to surrender himself to the sheriff, at the county jail, within fifteen days from the date of such affirmance or dismissal; and if he shall fail to do so, the sheriff must indorse the bail-bond forfeited and a writ of arrest must be issued by the clerk, and if not executed another must be issued, and so on until the judgment has been executed. If the defendant is taken on such writ, or if he shall surrender himself to the sheriff, the sentence must, without delay, be carried out as if no appeal had been taken.

4322. Effect when appeal sustained.-When the judgment of conviction is reversed and the cause remanded, such undertaking binds the defendant to appear from term to term until discharged by law and answer the charge, as in bail before conviction; but the defendant is not bound to appear before the trial-court pending his appeal.

4323 (4514) (4983) (4307) (756). Proceedings on forfeited undertaking. When any undertaking of bail under the provisions of this article is forfeited by the failure of the defendant to surrender himself to the sheriff, or to appear and answer the charge, according to the terms and effect of such undertaking, the same proceedings must be had thereon as on the forfeiture of other undertakings of bail in the circuit or city court.

See sections 4374-4380, and citations thereto.

4324 (4510) (4979). Transcript on appeal; when made out and forwarded.-When the execution of the judgment has been suspended as provided in this article, or when an appeal is taken without such suspension, it is the duty of the clerk of the court in

which the case was tried to make out a full and accurate transcript of the record, attach his certificate thereto and transmit it to the clerk of the supreme court within twenty days thereafter; but when time is allowed for signing a bill of exceptions, such transcript must be made out and forwarded within twenty days from the signing of such bill of exceptions, or, if such bill is not signed and filed, such transcript must be made out and forwarded within twenty days after the expiration of the time so allowed.

Bolling's case, 78 Ala. 469; Ex parte Cameron, 81 Ala. 87.

4325. What transcript need not contain.-Such transcript need not contain mere orders of continuance, nor the organization of the grand jury which found the indictment, nor the venire for any grand or petit jury, nor the organization of regular juries for the week or term at which the case was tried, unless some question thereon was raised before the trial-court; but, in the absence of any such question, such proceedings are, upon appeal, presumed to have been regular and legal.

4326. Defendant may dismiss his appeal in trial-court; exception. At any time before the transcript has been forwarded to the clerk of the supreme court, the defendant may dismiss his appeal, by filing, in the office of the clerk of the court in which the case was tried, a statement in writing to that effect, signed by himself or his attorney of record; and the clerk must enter the fact and date of such dismissal upon the margin of the record of the judgment. If the judgment has been suspended, such dismissal shall terminate the suspension and put the judgment into operation and the same must be executed in all respects as if the appeal had been dismissed by the supreme court. For such costs as may have accrued upon the appeal, the clerk may issue execution against the defendant, in favor of the state. But if sentence of death has been pronounced, such dismissal must be made at least ten days before the day appointed for the execution of the sentence.

ARTICLE 2.

WRIT OF ERROR.

4327 (4516) (4984). By whom and when granted.-A writ of error on any judgment rendered in a criminal case may issue on an order to that effect by any one of the judges of the supreme court in vacation, or by the supreme court in term time, addressed to the clerk of the court in which the judgment was rendered; but such writ must only be granted on some error of law apparent on the transcript of the record.

Formerly, when no question of law had been reserved, revision of judgment could be obtained only by writ of error.-Ex parte Knight, 61 Ala. 382; Taylor's case, 112 Ala. 69.

4328 (4517) (4985). Transcript, etc., made out and delivered to defendant.-On the filing of such order with the clerk of the court in which the judgment was rendered, such clerk must give the party filing it a certificate of the filing thereof; must make out a writ of error, and a transcript of the record and proceedings had in the cause; attach his certificate, and the writ of error, to such transcript, and deliver the same, on demand, to the party suing out the writ, or to his attorney.

4329 (4518) (4986). Order granting writ entered on minutes; writ prosecuted to return term, else dismissed.-When a writ of error is awarded by a judge of the supreme court in vacation, such judge must cause an entry of such order to be made on the minutes of the court at its next term; and if any writ of error is not prosecuted to the term to which it is returnable, it must be dismissed, and no writ of error afterwards allowed.

4330 (4519) (4987). Execution of sentence suspended, etc.-If the defendant is in the custody of the sheriff, and the order allowing the writ directs a stay of proceedings on the judgment, the sheriff must, on being served with the clerk's certificate that the order has been filed, and with a copy of the order, keep and detain the defendant in his custody, without executing the sentence which may have been passed on his conviction, to abide the judgment that may be rendered on the writ of error.

4331 (4520) (4988). In case of misdemeanor, defendant bailed. If the conviction is for an offense which is punishable by a fine, or by imprisonment in the county jail, or by hard labor for the county, the judge or court awarding the writ must also direct the clerk of the court in which the conviction was had to admit the defendant' to bail in a sum to be prescribed by such judge or court, with sufficient sureties, conditioned for his appearance at the next term of the court in which the conviction was had, to abide such judgment as may be rendered on the writ of error.

4332 (4521) (4989). Proceedings on forfeiture of undertaking; writ of arrest.-If the defendant fails to appear according to the undertaking, a writ of arrest must be issued, and the same proceedings be thereon had as are prescribed by sections 4321 (4513) and 4322; and the same proceedings must be had on the forfeited undertaking as on the forfeiture of other undertakings of bail in said court.

ARTICLE 3.

CONSIDERATION; AFFIRMANCE; REVERSAL.

4333 (4509) (4990). Assignment or joinder of error unnecessary; duty of court.-In cases taken to the supreme court under the provisions of this chapter, no assignment of errors, or joinder in errors is necessary; but the court must consider all questions appar

ent on the record or reserved by bill of exceptions, and must render such judgment as the law demands. But the judgment of conviction must not be reversed because of error in the record, when the court is satisfied that no injury resulted therefrom to the defendant.

Though not required, yet a brief would aid the court.-Robinson's case, 46 Ala. 10; Williams's case, 47 Ala. 659. See Hunter's case, 48 Ala. 272. Court must look to whole record.-Ex parte Whitaker, 43 Ala. 323; Williams's case, 47 Ala. 659; Foster's case, 39 Ala. 229. See Brazier's case, 44 Ala. 387. In any case, if errors apparent on the record are injurious to accused, cause will be reversed.-Williams's case, 47 Ala. 659. Ex parte Knight, 61 Ala. 483. Formerly the doctrine of error without injury was not applied in criminal cases. Pelham's case, 89 Ala. 28; Maxwell's case, 89 Ala. 150; Marks's case, 87 Ala. 99.

4334 (4522) (4991). Affirmance of judgment.-If the judgment is affirmed, or the appeal is dismissed, the supreme court must direct the sentence to be executed, and, if the day appointed for the execution of the sentence has passed, must specify a day for the execution of the sentence; and the judgment and sentence must be executed accordingly.

4335 (4523) (4992). Reversal of judgment.-If the judgment is reversed, the supreme court may order a new trial, or that the defendant be discharged, or that he be held in custody until discharged. by due course of law, or make such other order as the case may require; and if the defendant is ordered to be discharged, no forfeiture can be taken on his undertaking of bail.

Settled law of this state, that on reversal of judgment, or new trial granted, defendant may be tried again.-Turner's case, 40 Ala. 21; Jeffries's case, Ib. 381; Waller's case, Ib. 325; Cobia's case, 16 Ala. 781; Slack's case, 6 Ala. 676; Hughes's case, 2 Ala. 102. Ex parte Newton, 94 Ala. 431; Burk's case, 71 Ala. 377. Appellate court will not correct error and affirm judgment, except as to matter of costs, even on agreement of all parties.-Herrington's case, 87 Ala. 1; Zaner's case, 90 Ala. 657; Johnson's case, 94 Ala. 35. See circuit-court rule 31 and citations thereto, Vol. I., p. 1200.

CHAPTER 127.

ARSON. 4336-4341.

4336 (3780) (4346) (3697) (151). Arson in the first degree. Any person, who willfully sets fire to, or burns, any steamboat or vessel in which there is at the time any human being, or any prison or jail, or any other house or building which is occupied by a person lodged therein, or any inhabited dwelling-house, or any house adjoining such dwelling-house, whether there is at the time in such dwelling-house any human being or not, is guilty of arson in the first degree, and must, on conviction, be punished at the discretion of the jury, by death, or by imprisonment in the penitentiary for not less than ten years. (Form 6.)

A building built for and once used as a dwelling, but for a long time abandoned as a dwelling, and used only as a cotton-house, is not a dwelling in the meaning of the statute.-Henderson's case, 105 Ala. 82. Curtilage defined: A barn which only opens into a yard, which includes dwelling, is