case, 36 Ala. 281. Carter's case, 68 Ala. 96; Pines's case, 50 Ala. 153. Going down an open chimney sufficient; or even getting into a chimney and no further, with intent to steal.-Donohoo's case, 36 Ala. 381; Walker's case, 52 Ala. 376; Olds's case, 97 Ala. 81. Breaking outside shutters and protruding hand, without breaking inside window, not sufficient entering.-McCall's case, 4 Ala. 643. Entering open window, and opening door to let in accomplices, not burglary, unless accomplices enter, though may be attempt to commit burglary. Ray's case, 66 Ala. 281. Boring a hole through floor of corn-crib, and letting corn run out, is sufficient, the use of the instrument constituting both the breaking and entering.-Walker's case, 63 Ala. 49. Employe left in charge of house may commit burglary in room where he had no right to enter.-Hild's case, 67 Ala. 39. A servant having the key and right to enter office in day-time, may commit burglary by unlocking and entering to steal at night; but not if in the habit of sleeping there at night, and forms intent to steal after entering.-Lowder's case, 63 Ala. 143. Constructive breaking, by servant prearranged to capture thief, held not burglary, when.-Allen's case, 40 Ala. 334. Two persons owning adjoining rooms, not burglary for either to unlock his own door with intent to enter an opening left between the rooms and steal in other's room. Stone's case, 63 Ala. 115. A farm-hand employed to pick cotton who breaks and enters his employer's cotton-house, and takes cotton therefrom to put in his basket, to secure compensation therefor as if he picked it, is guilty of burglary.—Fort's case, 82 Ala. 50. Indictment must aver an entrance.-Pines's case, 50 Ala. 153. Also that party committed theft or felony, or broke and entered with such intent.-Bell's case, 48 Ala. 684. And if to commit arson, must allege with intent willfully to set fire to, etc.-Pairo's case, 49 Ala. 25. Where the larceny is charged without alleging the intent in breaking, etc., it is necessary to prove the larceny; but if the intent to steal is alleged, and the larceny added, conviction may be had for the burglary, though acquitted of larceny. Bell's case, 48 Ala. 684; Murray's case, 48 Ala. 675; Wolf's case, 49 Ala. 359. May allege the consummation of the intent by an actual larceny of the goods. Murray's case, 48 Ala. 675; Wolf's case, 49 Ala. 359. What is an averment of grand larceny, and not of burglary.-Bell's case, 48 Ala. 684. When count charges burglary only, and when both burglary and grand larceny.-Ib. May be joined with grand larceny, but not subject to doctrine of merger.-Bell's case, Ib. 694. May be joined with petit larceny in same count.-Snow's case, 54 Ala. 138; Gordon's case, 71 Ala. 315; Borum's case, 66 Ala. 468. But not in different counts.-Adams's case, 55 Ala. 143; Barber's case, 78 Ala. 19. Ownership must be precisely laid and proved.-Beall's case, 53 Ala. 460. Properly laid in person having undisputed occupancy and possession.-Matthews's case, 55 Ala. 65. Also may be jointly laid in owner and occupier, if erected for their joint use.-Webb's case, 52 Ala. 422. But may, under the statute, be laid in any one or more of several partners, joint owners, or tenants in common. White's case, 72 Ala. 195; Williams's case, 67 Ala. 183. Insufficient to allege in a firm name, without naming individuals of the firm.-Davis's case, 54 Ala. 88. Also insufficient to allege ownership in the estate of a deceased person, though named.-Beall's case, 53 Ala. 460 (overruling, on this point, Murray's case, 48 Ala. 675, and Anderson's case, Ib. 665). May allege, in disjunctive, "dwelling-house, or a building within the curtilage of the dwelling-house, or shop, store, warehouse, or other building," etc.-Ward's case, 50 Ala. 120; Williams's case, 67 Ala. 183. But cannot describe the building as "a barn or stable," or as "a barn, house or building."-Horton's case, 60 Ala. 72. And for burglary in "shop," or "store" or "other building," the "other valuable things" must be described generally, and alleged to be "of value."-Neal's case, 53 Ala. 465; Williams's case, 67 Ala. 183; Kelley's case, 72 Ala. 244; Henderson's case 70 Ala. 23; Norris's case, 50 Ala. 126; Robinson's case, 52 Ala. 587; Webb's case, Ib. 422; Rowland's case, 55 Ala. 210; Matthews' case, Ib. 65; Hurt's case, Ib. 214; Stone's case, 63 Ala. 115; Pickett's case, 60 Ala. 77; Davis's case, 54 Ala. 88; Crawford's case, 44 Ala. 382. Strict correspondence as to proof of value not essential. Robinson's case, 52 Ala. 587. But "goods and merchandise" need not be averred to be valuable things.-Wicks's case, 44 Ala. 398. Averment that goods, etc., "were kept for use," etc., sufficiently means that they were so kept at the time. Henderson's case, 70 Ala. 23; Pond's case, 55 Ala. 196. Only structures of a temporary character require additional descriptive averment of being "specially constructed or made to keep such goods," etc.-Stone's case, 63 Ala. 115. Indictment for burglary in a dwelling-house need not allege that goods, etc., were kept for use, etc., such words applying only to the buildings or structures named in the second clause of the section.-Potter's case, 92 Ala. 37; Gilmore's case. 99 Ala. 154. But if unnecessarily so alleged, must be proved.-Gilmore's case, 99 Ala. 154. Must allege intent to steal or to commit some felony, or a completed larceny, or some felony actually committed.-Barber's case, 78 Ala. 19. Averment that house entered belongs to "M.," whose Christian name is unknown, will support judgment after conviction, though the Christian name was or could have been known to the grand jury.-Jack

son's case, 102 Ala. 167. For burglary in a dwelling-house owned by wife in which she and the husband lived, ownership may be laid in either.-Young's case, 100 Ala. 126. Ownership may be laid in different persons in separate counts, and a general verdict is good.-Towns's case, 111 Ala. 1. Indictment which alleges burglary of smoke-house containing things kept or use, etc., need not allege that it was within curtilage of dwelling.-Pressley's case, 111 Ala. 34. Indictment for entering "sample-room" of a hotel should show it was a dwelling, shop, store, etc., or that the goods were kept therein for sale or deposit. Thomas's case, 97 Ala. 3. Indictment for entering leased premises should lay the ownership in the lessee rather than the owner of the fee.-Ib. Indictment following Code form for burglary is not violated by further adding "defendant feloniously took and carried away certain goods therefrom."-Walker's case, 97 Ala. 85. If house owned by corporation and occupied by naked agent or servant, ownership must be laid in corporation. Aldridge's case, 88 Ala. 113. Indictment for entering building of Perry Mason Shoe Co. should aver it was a corporation or a partnership, and set out names of partners, so as to show that defendant was not one of them.-Emmonds's case, 87 Ala. 12. Indictment for burglary may allege in one count that it was with intent to steal or commit rape.-Dismukes's case, 83 Ala. 287. Indictment which fails to charge intent and fails to charge the asportation sufficiently to constitute burglary is fatal as to both.-Barber's case, 78 Ala. 21. Evidence: A smoke-house forty yards from the dwelling, not in same inclosure, but in which family supplies are stored and used from, may be within the curtilage of the dwelling.-Wait's case, 99 Ala. 164. Digging under smoke-house which has no floor but earth, is sufficient breaking and entrance.-Pressley's case, 111 Ala. 34. Proof of identity of goods stolen at time of burglary.-Crane's case, 111 Ala. 45. Goods taken from defendant, alleged to have been taken at time of burglary, and also a vest alleged to have been worn by defendant before offense found near scene of action, properly introduced as evidence.-Walker's case, 97 Ala. 85. Alibi; burden of proof as to.-Towns's case, 111 Ala. 1. Tracks: Witness cannot state that tracks found near scene of action "correspond, in his opinion, with tracks of defendant," but can only state facts of correspondence and identification.-Livingston's case, 105 Ala. 127; Hodge's case, 97 Ala. 40; Riley's case, 88 Ala. 193; Busby's case, 77 Ala, 66; Young's case, 68 Ala. 569. Witness may testify he measured two sets of tracks and found them similar.-Gilmore's case, 99 Ala. 154. Defendant's refusal to make tracks cannot be used against him.-Cooper's case, 86 Ala. 610. But if defendant voluntarily place his foot in the track, state may prove that it fit, and he cannot then claim that his consenting to do this was à circumstance in his favor.-Potter's case, 92 Ala. 37. Confessions: Confessions made while in custody in response to statements by prosecutor "that if he got the money it would be best for him to tell about it, but not to own it if he did not get it," held voluntary.-Dodson's case, 86 Ala. 60. If defendant calls out part of confession, state may bring out all.-Ib. Confessions are prima facie inadmissible-they must be free from any influence, hope or fear, and this must be shown by state.-Banks's case, 84 Åla. 430; Owen's case, 78 Ala. 425. Though confessions be improperly obtained, if they disclose extraneous facts which will show the truth of the confession and tend to prove the commission of the crime, that part which relates strictly to the extraneous facts is admissible, but not the whole.—Banks's case, 84 Ala. 430. Admissibility and weight of confessions and acts of prisoner.-Mountain's case, 40 Ala. 344; White's case, 49 Ala. 344; Ward's case, 50 Ala. 120; Murdock's case, 68 Ala. 567. Uncorroborated confessions sufficient to convict.-White's case, 49 Ala. 344. Refusal by accused to permit his house to be searched without a warrant inadmissible against him.-Murdock's case, 68 Ala. 567. Possession of stolen goods: Recent unexplained possession of stolen goods, may not as matter of law raise presumption of guilt, yet it is competent evidence, and in connection with proof of flight, will authorize conviction of burglary.-Dodson's case, 86 Ala. 60; Crawford's case, 44 Ala. 45; Neal's case, 53 Ala. 465; Cooper's case, 87 Ala. 135; see also Murray's case, 48 Ala. 675. Explanation of possession made at time, as part of res gestæ, admissible.-Henderson's case, 70 Ala. 23. Corpus delicti having been proved, jury may infer guilt of defendant from his recent possession of goods stolen at time of burglary, if he has made contradictory statements as to how he acquired them.-Ross's case, 82 Ala. 65. Variance: Where house burglarized is alleged to be property of wife, and the evidence only shows that wife and husband lived together in the house, there can be no conviction, the law presuming it to be house of husband.-Jackson's case, 102 Ala. 167. Verdict may be general, when burglary and grand larceny charged in same or different counts, though only one punishment imposed.-Gordon's case, 71 Ala. 315; Bell's case, 48 Ala. 694. May be verdict for petit larceny, if alleged in same count with burglary.-Borum's case, 66 Ala. 468; Gordon's case, 71 Ala. 315. And a conviction of one offense is an acquittal of the other. Bell's case, 48 Ala. 694; Fisher's case, 46 Ala. 717. Sentence may be im

prisonment in penitentiary or hard labor for two years, on verdict of guilty. Washington's case, 63 Ala. 189. See note to section 5412.

4418 (3787) (4344). Burglary in railroad-car.-Any person, who, in the night or day time, with the intent to steal, or to commit a felony, breaks into and enters any railroad-car upon or connected with any railroad in this state, in which any goods. merchandise, or other valuable thing is kept for use, deposit, or transportation, is guilty of burglary, and must, on conviction, be imprisoned in the penitentiary for not less than one, nor more than four years. (Form 22.)

Ownership of car must be alleged and proved.-Johnson's case, 73 Ala. 483. Car owned by railroad corporation must be laid and proved in company, not in stockholders.-Johnson's case, 98 Ala. 57. Proof that car was standing on track of railroad not sufficient.-Johnson's case, 111 Ala. 66. Proof of corporate existence. Willingham's case, 104 Ala. 59.

4419 (3788) (4345) (3696) (150). Possession of burglarious instruments, etc.-Any person who has in his possession any implement or instrument designed and intended by him to aid in the commission of burglary or larceny in this state, or elsewhere, must, on conviction, be fined not less than one hundred dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than twelve months. (Form 23.) Davis's case, 87 Ala. 10.

CHAPTER 135.

CARRYING CONCEALED WEAPONS. 4420-4424.

4420 (3775) (4109) (3555) (15). Carrying concealed weapons. Any one, who carries concealed about his person a bowie-knife, or knife or instrument of like kind or description, or a pistol, or firearms of any other kind or description, or an air-gun, must, on conviction, be fined not less than fifty, nor 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. But the defendant may give evidence that, at the time of carrying the weapon concealed, he had good reason to apprehend an attack, which the jury may consider in mitigation of the punishment, or justification of the offense. (Form 26.)

Statute not unconstitutional; it does not prohibit, but merely regulates the carrying of arms.-Reid's case, 1 Ala. 612. Weapon: The "pistol" or "firearm" may be imperfect, and yet be a "firearm."-Atwood's case, 53 Ala. 508; see Evins's case, 46 Ala. 88. What imperfections in the pistol will exclude it from the purview of the statute.-Ib. Sufficient weapon, if all the separated pieces of a pistol which can be readily put together, are carried.-Hutchison's case, 62 Ala. 3. A broken handle, or mainspring, or want of tube, does not exclude pistol from the operation of the statute-it is not necessary to be a pistol that can be fired in the usual manner.-Redus's case, 82 Ala. 53. Also a knife, if not unlike a bowie-knife in all, but only in some essential particulars. Sears's case, 33 Ala. 347. Concealment: The true rule is whether it was concealed from ordinary observation, not whether a witness saw or did not see it, or could have seen it on closer examination-it may be concealed in the hand,

Ramsey's case, 91 Ala. 29; Jones' case, 51 Ala. 16; see also Street's case, 67 Ala. 88. Carrying: Weapon must be carried about the person in the sense of moving with the person; hence a conviction may be had for carrying in a hand-satchel suspended from the shoulders.-Warren's case, 94 Ala. 79. Or in a hand-basket carried on the arm.-Diffey's case, 86 Ala. 66. But not for carrying in saddle-bags while riding on horseback.-Cunningham's case, 76 Ala. 88. Nor for carrying under rug in bottom of buggy.-Ladd's case, 92 Ala. 58. Unlawful to carry pistol concealed within the curtilage of one's abode.-Harman's case, 69 Ala. 248. Or in the room of another person.-Owen's case, 31 Ala. 387. Evidence: It is admissible for witness to testify that "he saw something in defendant's pocket that looked like a pistol," or that he saw impression of the pistol through the clothing, but such evidence will not warrant the general charge for the state.-Cotton's case, 88 Ala. 168; Mayberry's case, 107 Ala. 64. Juries may be, and often are convinced beyond reasonable doubt, that the pistol was previously concealed, where proof shows that defendant was afterwards seen with a pistol, although no witness can testify that he had previously looked to see whether defendant had a pistol.-Farley's case, 72 Ala. 170. Evidence of concealed weapon obtained by unlawful search is admissible.-Scott's case, 113 Ala. 64; Shields's case, 104 Ala. 35; Scott's case, 94 Ala. 80; Chastang's case, 83 Ala. 29. Witness may testify that he saw a pistol on the defendant a short time before alleged time of carrying.-Dean's case, 98 Ala. 71. Declaration of defendant a short time before alleged carrying “that he was going to raise hell," inadmissible.-Ib. The act being continuous, evidence of concealment at more than one time and place is admissible, though if the carrying is continuous from one time to another there cannot be two convictions or trials.-Smith's case, 79 Ala. 257; Ladd's case, 92 Ala. 58; Dean's case, 98 Ala. 71; Etress's case, 88 Ala. 191. Witness cannot testify that he lived with defendant and worked with him, and that he did not own a pistol, on a charge of carrying a pistol when they were not together.-Gaither's case, 89 Ala. 62. Good reason to apprehend an attack: The only exception is "good reason to apprehend an attack," and officers, sheriffs, deputies and policemen are not exempt, unless within ground of exception. Reach's case, 94 Ala. 113; Scott's case, 113 Ala. 64. Defense that defendant was a watchman is not good if he was not on watchman's duty at time.-Bell's case, 100 Ala. 78. If defendant attempts to show that he expected an attack from "C.," alleged to be a dangerous man, state may show that he was a justice of the peace.-Bell's case, 100 Ala. 78. The right is coextensive only with the particular necessity, and ceases when that necessity ceases.-Eslava's case, 49 Ala. 355. Having reason to apprehend attack, or mere belief of attack by defendant, not founded on reasonable grounds, not sufficient; there must be "good reason to apprehend an attack."-Baker's case, 49 Ala. 350; Davenport's case, 85 Ala. 336; see also Collier's case, 68 Ala. 499; Berney's case, 69 Ala. 233; Shorter's case, 63 Ala. 129; Hardin's case, 63 Ala. 38. Proper charge when this is the only defense.-Hogg's case, 52 Ala. 2. Good reason to apprehend an attack at a dangerous time and place will not justify casual carrying weapon at safer time and place.-Chatteaux's case, 52 Ala. 388. Must be carried for defensive and not offensive purposes. Shorter's case, 63 Ala. 129; Stroud's case, 55 Ala. 77. Defendant cannot prove that he was advised to arm himself.-Berney's case, 69 Ala. 233. Nor an offer by him to borrow $5.00 to buy a pistol.-Ib. No excuse that pistol was to take part in school exhibition.-Preston's case, 63 Ala. 127. Defendant's enemy having armed himself and searched for defendant, declaring his intention "to fix him when he did see him," held good reason to apprehend an attack.-Dooley's case, 89 Ala. 90. Court may charge jury to assess such a fine as they may deem necessary to suppress the evil.-Shorter's case, 63 Ala. 130; see also Chatteaux's case, 52 Ala. 388; McManus's case, 36 Ala. 293; Sullivan's case, 68 Ala. 525; Farley's case, 72 Ala. 170.

4421 (3776) (4110). Same; brass knuckles and slung-shots.-Any one, who carries concealed about his person brass knuckles, slungshot, or other weapon of like kind or description, must, on conviction, be fined not less than fifty, nor 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.

Indictment charging carrying brass knuckles or other weapon of like kind or description is sufficient, and will support a conviction on proof of carrying lead knuckles.-Bell's case, 89 Ala. 61. Good cause to apprehend an attack no excuse for carrying brass knuckles.-Bell's case, 89 Ala. 61.

4422 (3777) (4111). Carrying rifle or shot-gun walking-cane. Any person, who carries a rifle or shot-gun walking-cane, must, on

conviction, be fined not less than five hundred, nor more than one thousand dollars, and be imprisoned in the penitentiary not less than two years.

4423 (3778). Given in special charge to grand jury; their duty. The three preceding sections must be given in special charge to the grand jury; and it is their duty, if the evidence 'justifies it, to find and present an indictment.

4424 (3779) (4809) (4136) (586). Indictment for carrying concealed weapons; proof.-In an indictment for carrying concealed weapons, it is sufficient to charge that the defendant "carried concealed about his person a pistol, or other description of firearms," or a "bowie-knife, or other knife or instrument of the like kind or description," or other forbidden weapon, describing it, as the case may be; and the excuse, if any, must be proved by the defendant, on the trial, to the satisfaction of the jury. (Form 26.)

Feb. 18, 1891.

CHAPTER 136.

COCK-FIGHTING. 4425, 4426.

4425. Keeping cockpit; cock-fighting.-Any person who keeps a p. 1158, $1. cockpit, or who in any public place fights cocks, must, on conviction, be fined not less than twenty nor more than fifty dollars. 4426. Justice of peace has jurisdiction.-Justices of the peace have jurisdiction of the offense defined in the preceding section.

Ib. $2.

CHAPTER 137.

COMPOUNDING FELONY.

4427 (4006) (4149) (3587, 3588) (46, 47). Compounding felony. Any person, who, having knowledge of the commission of a felony, takes, receives, or agrees to take or receive from another, any money, property, or other thing of value, to compound or conceal such felony, or to abstain from any prosecution therefor, must, on conviction, be fined not more than one thousand dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than twelve months. A prosecution and conviction may be had under this section, although the person guilty of the original offense has not been tried. (Form 29.)

Code form of indictment sufficient.-Watt's case, 97 Ala. 72.