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 (qualifying Smith's case, 88 Ala. 23); Moore's case, 18 Ala. 532; Allen's case, 52 Ala. 391; Meredith's case, 60 Ala. 441; Lane's case, 85 Ala. 11; Jolly's case, 94 Ala. 19; Jackson's case, 94 Ala. 85; Jones's case, 96 Ala. 101; Ellis's case, 105 Ala. 72. 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; Lawrence's case, 84 Ala. 424; Smith's case, 83 Ala. 26; Meredith's case, 60 Ala. 441. That the offense would have been murder had death ensued, is not sufficient evidence of the intent when the injury is inflicted on a person not intended.-Moore's case, 18 Ala. 532; McCormack's case, 102 Ala. 156. The means to accomplish the intent need not exist; as the absence of a cap from a gun would not matter, if the accused supposed it was on the gun-Mullen's case, 45 Ala. 43. Presenting an unloaded gun, knowing it to be unloaded, is not an assault.-Chapman's case, 78 Ala. 463. The facts must raise presumption of intent to murder.-Morgan's case, 33 Ala. 413; Horn's case, 98 Ala. 23. The intent is a question for the jury.-Morgan's case, 33 Ala. 413; Simpson's case, 59 Ala. 1; Washington's case, 63 Ala. 135. Evidence of malice and intent.-Ogletree's case, 28 Ala. 693; Cabbell's case, 46 Aia. 195; Tarver's case, 43 Ala. 354; Allen's case, 52 Ala. 391; Moore's case, 18 Ala. 532; Simpson's case, 59 Ala. 1; Ross's case, 62 Ala. 224; Gray's case, 63 Ala. 66; Meredith's case, 60 Ala. 441; Crawford's case, 86 Ala. 16. Deprived of felonious character under same provocation as homicide; doctrine of freedom from fault and of retreat the same.-Ellis's case, 105 Ala. 72; Williams's case, 103 Ala. 33; McCormack's case, 102 Ala. 156; Gunter's case, 111 Ala. 23. Onus on defendant to show there was no reasonable mode of escape; onus on state to show fault in bringing on the difficulty.-Cleveland's case, 86 Ala. 1; Gibson's case, 89 Ala. 121; Keith's case, 97 Ala. 32; Holmes's case, 100 Ala. 80; McCormack's case, 102 Ala. 156; Henson's case, 112 Ala. 41; s. c., 22 So. 127. The discharge of a loaded gun at another, within carrying distance, if unexplained, raises the presumption of malice.-Crawford's case, 56 Ala. 16; Williams's case, 77 Ala. 53. What necessary to justify use of deadly weapon in resistance of assault.-Jackson's case, 94 Ala. 85. When malice presumed from the use of a deadly weapon.-Williams's case, 77 Ala. 53; Crawford's case, 86 Ala. 16; Jolly's case, 94 Ala. 19. Sudden passion from an immediate insult is not enough to repel the imputation of malice.-Lane's case, 85 Ala. 11. Aiding and abetting, and encouraging a mob by words to commit this offense; must be shown that the mob heard the words.-Cabbell's case, 46 Ala. 195. Words were addressed to or heard by some of the persons composing the mob.-Cabbell's case, 46 Ala. 195. Conspiracy: Each co-conspirator is equally responsible for everything which may consequently and proximately result from their unlawful purpose.-Tanner's case, 92 Ala. 1; Jolly's case, 94 Ala. 19; Martin's case, 89 Ala. 115; Elmore's case, 110 Ala. 63. if defendant himself made the assault, proof of the conspiracy is not necessary.-Jolly's case, 94 Ala. 19. Charge predicating guilt on proof that defendant was present ready to aid and abet, without proof of a conspiracy, is error.-Elmore's case, 110 Ala. 63. Abusive words or threats employed by accused against person assaulted, prior or subsequent to difficulty, admissible to show hostile intent.-Wims's case, 90 Ala. 623; Horn's case, 98 Ala. 23; Lawrence's case, 84 Ala. 424; Drake's case, 110 Ala. 9; Elmore's case, 110 Ala. 63; Walker's case, 85 Ala. 7; Henderson's case, 70 Ala. 29. The fact that defendant armed himself for the purpose of the difficulty is material and relevant.-Ellis's case, 105 Ala. 72. Attempt to poison; threats of accused to kill mutual paramour of himself and person assaulted, made at same time as threats against person assaulted, admissible. Shackleford's case, 79 Ala. 26. Attempt to murder wife by drowning; evidence tending to show relations existing between accused and his wife admissible.-Smith's case, 92 Ala. 30. Indictment charging assault to murder includes the lesser degrees of assault; hence charges requiring an acquittal on failure to prove malice are properly refused.-Jones's case, 79 Ala. 23; Horn's case, 98 Ala. 23. Includes, also, an attempt to commit an assault, and charge ignoring this feature is properly refused.-White's case, 107 Ala. 132. Election: Where defendant fired three shots in quick succession at the person assaulted, state not required to elect.-Ellis's case, 105 Ala. 72. When interval between two shots too great to constitute one and the same transaction, state required to elect.-Williams's case, 77 Ala. 53. Where defendant assaulted different persons as part of same transaction, acquittal of one no bar to prosecution for the other.-Gunter's case, 109 Ala. 23. Indictment may, in ditterent counts, allege assault on different persons; if evidence discloses two distinct acts, state required to elect.-Tanner's case, 92 Ala: 1. Drunkenness: Not

And

available in defense unless the accused was so drunk as to be incapable of forming an intent to take life.-Walker's case, 85 Ala. 7; Englehardt's case, 88 Ala. 100. While the fact of excessive drunkenness may reduce the grade of crime, voluntary drunkenness can never justify an assault.-Englehardt's case, 88 Ala. 100. That accused was drunk from four to seven when offense committed, "falls far short" of showing incapacity to form intent to take life.-Walker's case; 85 Ala. 7. Testimony that shooting "was accidental" properly excluded as a conclusion.-Gunter's case, 111 Ala. 23. "A man's house is regarded in law as his castle, his place of refuge," and there is no duty to retreat therefrom.-Christian's case, 96 Ala. 89; Lee's case, 92 Ala. 15; Brinkley's case, 89 Ala. 34; Naugher's case, 105 Ala. 26. The indictment, when defective, yet good for simple assault.-Wood's case, 50 Ala. 144; Bullock's case, 13 Ala. 413. Formerly held necessary to allege the facts which constitute the offense. (Clay's Digest, 442, §26); Beasley's case, 18 Ala. 539; Trexler's case, 19 Ala. 22. Where a weapon is alleged, a plea of guilty of simple assault is admission of assault with the weapon, without the intent.-Adams's case, 48 Ala. 421. if the intent to murder is not proved, verdict may be for simple assault.-Turbeville's case, 40 Ala. 715; Mooney's case, 33 Ala. 419. When held to be for simple assault.-Burns's case, 8 Ala. 313. Assault to maim; the intent, whether deliberate or formed on the instant, whether specific or general, if directed against the person assaulted, is the criminal intent meant in the statute. Allen's case, 52 Ala. 393. Indictment, when good only for simple assault. Murdock's case, 65 Ala. 520. An attempt should be accompanied by an intent to maim.-Allen's case, 52 Ala. 393. Assault to ravish must be forcible attempt to cohabit against female's consent.-Lewis's case, 30 Ala. 54; Jones's case, 90 Ala. 628; Toulet's case, 100 Ala. 72; Norris's case, 87 Ala. 85. Force, actual or constructive, necessary, even (under this section) in case of child under ten.-Toulet's case, 100 Ala. 72. Intent to gratify desire against consent of female must be shown beyond reasonable doubt.-Jones's case, 90 Ala. 628. Where the accused put his arms around the prosecutrix, forcibly held and pressed her, making indecent proposals, and only released her on her threats to call assistance, conviction sustained.-Norris's case, 87 Ala. 85. An intent to do a thing implies a purpose only, while an attempt to do a thing implies both a purpose and an actual effort to carry that purpose into execution. Witherby's case, 39 Ala. 703, citing on this point Prince's case, 35 Ala. 367. Hence, an "assault with intent to commit a rape," is of itself an attempt to commit a rape.-Ib. 702. Indecent advancement or importunity not sufficient, unless accompanied by acts evidencing intent, and creating terror; subsequent abandonment of purpose, no excuse.-Lewis's case, 35 Ala. 380. The mere fact of complaint admissible.-Scott's case, 48 Ala. 420. See note to section 5444. Prosecutrix cannot give opinion, and state that defendant "attempted to ravish her, but did not accomplish his purpose."-Scott's case, 48 Ala. 420. Physical inability of defendant may be considered.-Nugent's case, 18 Ala. 521. An indictment in Code form sufficient.-Bradford's case, 54 Ala. 230.

4347 (3752) (4599) (3901) (353). Assaults to kill or maim and conspiracies by convicts.-Any convict, who assaults an inspector of convicts, or an officer or other person having the charge of, or superintendence over convicts, with intent to kill or maim him, or conspires with any other person for the purpose of killing or maiming any such officer or person, must, on conviction thereof, if his former sentence was for life, suffer death; and, if his former sentence was for a term less than life, be imprisoned for an additional term, not less than five, nor more than twenty years.

CHAPTER 129.

BAIL.

ARTICLE 1.-DEFINITIONS. 4348, 4349.

2.-WHO MAY ADMIT TO, AND TAKE BAIL; PROCEEDINGS ON APPLICATION, AND REVISION BY SUPREME COURT. 4350-4356.

3.-WHEN BAIL ALLOWED. 4357-4360.

4.-FORM, QUALIFICATIONS, AND RETURN OF BAIL. 4361-4368.

5.-EFFECT OF UNDERTAKING, AND DISCHARGE OF BAIL.

4369-4373.

4348 (4406) (4840) (4232) (681). Admission to bail defined. Admission to bail is the order of a competent court, magistrate, or officer, that the defendant be discharged from actual custody on bail. Bail fixed by committing magistrate no bar to further arrest for same offense, nor is it available for accused after indictment.-Robinson's case, 108 Ala. 161; overruling Skelton's case, 104 Ala. 98.

4349 (4407) (4841) (4233) (682). Taking of bail defined.-The taking of bail consists in the acceptance by a competent court, magistrate, or officer, of sufficient bail for the appearance of the defendant according to the legal effect of his undertaking, or for the payment to the state of a certain specified sum if he does not appear.

In absence of statute authorizing it, an officer cannot delegate his power to admit to bail.-Butler v. Foster, 14 Ala. 323; Antonez's case, 26 Ala. 81. Nor can he receive or authorize a sum of money as substitute for bail.-Butler v. Foster, 14 Ala. 323.

Feb. 28, 1887, p. 117.

ARTICLE 2.

WHO MAY ADMIT TO, AND TAKE BAIL; PROCEEDINGS ON APPLICATION,
AND REVISION BY SUPREME COURT.

4350 (4408) (4830) (4157) (605). Discharge on bail by sheriff or deputy for misdemeanor; minimum bail fifty dollars.-If the offense charged in the indictment is a misdemeanor, the defendant must be discharged by the sheriff, or his deputy, on giving sufficient. bail; but the amount of bail must in no case be less than fifty dollars.

In case of misdemeanor, bail is a matter of right and sheriff has no discretion if sufficient bail offered.-Hammon's case, 59 Ala. 164; Jones's case, 63 Ala. 161; Callahan's case, 69 Ala. 65; Taylor v. Smith, 104 Ala. 537. Sheriff refusing to take sufficient bail liable on his bond in damages to the defendant. Taylor v. Smith, 104 Ala. 537.

4351 (4409, 4411) (4831, 4849) (4160, 4241) (608, 690). How bail for felony fixed; taken by sheriff.-When a bill of indictment is filed in court charging the defendant with a bailable felony, and the

defendant fails to give bail in open court, the judge of the court must forthwith indorse on such indictment the amount of bail to be required of the defendant; and, when an application for bail is made to any judge or chancellor in vacation, such judge or chancellor may fix the amount of bail; and the sheriff has authority, and it is his duty, to discharge such defendant in term time or vacation on his giving bail as required. But this section shall not have effect to prevent application for bail, or for reduction of bail, in any other manner provided by law.

4352. Amount of bail indorsed on writ of arrest.—When a writ Ib. §2. of arrest is issued upon an indictment, the clerk issuing the writ must indorse thereon an order to the sheriff to take bail of the defendant in the amount fixed by the judge and indorsed by him on the indict

ment.

Ex parte Robinson, 108 Ala. 161.

4353 (4410) (4832) (4161) (609). When sheriff may discharge on bail for misdemeanor.-If the indictment charges a misdemeanor, and the defendant is committed to jail for want of bail, the sheriff may, at any time, discharge him on his giving bail in the amount required.

See citations to section 4350.

4354 (4412) (4848) (4240) (689). When probate judge may take bail. A judge of probate, within his county, has the same authority to admit to bail that is by law conferred on a chancellor or circuit judge to admit to bail in vacation.

Ex parte Keeling, 50 Ala. 474; Ex parte Ray, 45 Ala. 15; Hale's case, 24 Ala. 80.

4355 (4413) (4850) (4242) (691). Only one application allowed; exceptions reserved and taken to supreme court.-When an application for bail is made to a chancellor, or to any circuit or city court in term time, or to any circuit judge, city judge, or judge of probate in vacation, and is refused, no subsequent application can be made; but the evidence in such case may be set out on exceptions, and application made thereon to the supreme court.

If case heard before lower court on evidence, etc., defendant cannot claim another such hearing; only remedy to set out evidence on exceptions, and apply to supreme court.-Ex parte Carroll, 36 Ala. 300; Ex parte Campbell, 20 Ala. 89. If bail refused, he may petition supreme court for a revision.-Ex parte Croom, 19 Ala. 561. But unless lower court clearly erred, its decision permitted to stand.-Ex parte McAnally, 53 Ala. 496; Ex parte McCrary, 22 Ala. 65; Ex parte Weaver, 55 Ala. 250; Ex parte Allen, Ib. 258; Ex parte Nettles, 58 Ala. 268. The way to get the case heard before the supreme court. Ex parte Croom, 19 Ala. 561. Not a matter of right to withdraw application for bail; state has an interest in the hearing, if begun, and court may proceed to determine it.-Ex parte Campbell, 20 Ala. 89.

4356 (4414) (4851) (4243) (692). How bail fixed and taken in such case; duty of sheriff.-When an order is made by the supreme court admitting a defendant to bail, the order must fix the amount of bail required, and direct the same to be taken by the chancellor or judge to whom the primary application was made, or by the sheriff of the county in which the defendant is confined; and when such bail is ordered to be taken by a chancellor or judge the sheriff hav

ing the custody of the defendant must carry him before such chancellor or judge for that purpose.

Order for bail is properly directed to the sheriff having the custody of the defendant, and bail is properly taken by such sheriff, though the prosecution be pending in another county and circuit.-Holcombe's case, 99 Ala. 185.

ARTICLE 3.

WHEN BAIL ALLOWED.

4357 (4415) (4842) (4234) (683). When bail not allowed.-A defendant cannot be admitted to bail when he is charged with an offense which may be punished by death, if the court or magistrate is of the opinion, on the evidence adduced, that he is guilty of the offense in the degree punished capitally; nor when he is charged with a personal injury on another which is likely to produce death, and which was committed under such circumstances as would constitute murder in the first degree if death should ensue.

The common-law rule of admitting to bail, and the constitution and statutes construed in connection therewith.-Ex parte Croom, 19 Ala. 561; Ex parte Bryant, 34 Ala. 270; Ex parte McAnally, 53 Ala. 496; Ex parte Mahone, 30 Ala. 49; Hammon's case, 59 Ala. 164. Rules in determining whether case bailable: (1) May the offense be punished capitally, not that it must be.-Ex parte McCrary, 22 Ala. 65; Ex parte McAnally, 53 Ala. 496. (2) If it may, and the proof is evident, or the presumption great of the defendant's guilt, bail should be denied.-Ib. 65; Ib. 495; Ex parte Mahone, 30 Ala. 49; Ex parte Banks, 28 Ala. 89; Ex parte Howard, 30 Ala. 43; Ex parte Bryant, 34 Ala. 270. (3) If a well-founded doubt exists as to defendant's guilt, the proof cannot be said to be evident, or the presumption great; and the accused is then entitled to bail as a matter of right.-Ex parte Bryant, 34 Ala. 270; Ex parte Banks, 28 Ala. 89; Ex parte Acree, 63 Ala. 234. (4) Accused must be presumed to be guilty in the highest degree, which presumption must be overcome by proof.-Ex parte Vaughan, 44 Ala. 417. (5) Bail may be denied whenever the judge would sustain a capital conviction by a jury on the same evidence.-Ex parte McAnally, 53 Ala. 496; Ex parte Nettles, 58 Ala. 268; Ex parte Brown, 65 Ala. 446; Ex parte Sloane, 95 Ala. 22. (6) Bail should be denied in assault with intent to murder, when wounded party in danger of dying within a year and a day. Ex parte Andrews, 19 Ala. 582. Pecuniary condition of defendant taken into account.-Ex parte Banks, 28 Ala. 89. A prisoner held under charge punished capitally is entitled to bail as matter of right, unless the proof is evident or presumption great.-Ex parte Sloane, 95 Ala. 22; Ex parte King, 86 Ala. 620; Ex parte Bonner, 100 Ala. 114; Richardson's case, 96 Ala. 110. It is also the rule that revisory courts will give much weight to judgment of lower court which saw the demeanor and could judge of the prejudice of the witnesses. Ex parte Sloane, 95 Ala. 22. On application for bail of prisoner who is under indictment for murder, the indictment makes a prima facie case for the state, and the burden is on the defense.-Ex parte Rhear, 77 Ala. 92. Evidence examined and held not sufficient to justify a denial of bail.-Ex parte King, 86 Ala. 620; Ex parte Dykes, 83 Ala. 114; Ex parte Hammock, 78 Ala. 414; Ex parte Bryant, 34 Ala. 270. When prisoner has been regularly committed and applies for bail on habeas corpus, the order of commitment is a prima facie case for state; but if state examines witnesses and they fail to make out a case, defendant should be discharged.-Ex parte Robinson, 86 Ala. 622.

4358 (4416) (4843) (4235) (684). When matter of right.-In all other cases than those above specified, the defendant is, before conviction, entitled to bail as a matter of right.

In case of misdemeanor.-Hammons's case, 59 Ala. 164; Callahan's case, 60 Ala. 65; Taylor v. Smith, 104 Ala. 537. In capital felonies "unless proof evident or presumption great.”—Ex parte McAnally, 53 Ala. 496; Hammons's case, 59 Ala. 164. See also note to preceding section.