the judge thereof, until such case is finally determined, and shall be liable to all the penalties prescribed by law for any misfeasance, or malfeasance, or nonfeasance, in the discharge of the duties of such office. 4875 (4829) (4057). When cause stands for trial; trial by jury; precedence of cause.-When the information is filed in the circuit, city, or criminal court, if the summons is served twenty days before the day specified in the order, such cause shall stand for trial on that day, and if the summous is served less than twenty days before the day specified in the order, then the court, in term time, or the judge thereof, in vacation, shall, on the day specified in the order, make an order setting another day on which the defendant shall answer the information, and the cause stand for trial; and the cause, if in term time, shall have precedence and priority over all other business in such court; and, whether in term time or vacation, shall be proceeded with in all respects as civil actions at law are conducted, with the right to either party to except to the rulings of the court, and to reserve such exceptions as in civil causes; and the defendant shall be entitled to a trial by jury on any issue of fact, whenever he demands the same; and if the trial is had in vacation, upon a demand for a jury, the judge of the court shall make an order requiring a jury to be summoned by the sheriff, in the manner provided for by law for summoning special juries in the county of the trial. 4876 (4880) (4063). Time of trial.-When such proceedings are instituted in a circuit, city, or criminal court, and the day specified in the order of the judge on which the defendant is to appear and answer is in vacation, a special term of such court shall be held on such day without further notice or order, and special terms of such courts shall be held on such day or days in vacation, which may thereafter be set, and to which such cause shall be continued, without further notice or order, unless a regular term of such court shall intervene, when the cause shall stand for trial at such regular term. Whenever any such cause stands for trial at a regular term of such court, and is not tried for any cause during such term, it shall not be continued to the next regular term, but the court shall make an order fixing a day in vacation for the trial of the cause, and for a special term of the court to be held on that day, at which special term it shall be tried, unless continued for good cause. At no special term of the court, held under the provisions of this section, shall any other business be transacted. 4877 (4831) (4058). Verification of information when filed by taxpayers; costs.-When the proceedings in impeachment are insti tuted by taxpayers, the information must be verified by the petitioners, or any one of them. The costs shall be given against the unsuccessful party, as in other cases, to be collected by execution. 4878 (4832) (4059). Duties and liabilities of sheriffs, etc.; fees of clerk, etc.-The sheriff, coroner, or constable, to whom process is issued under the provisions of this chapter, shall perform all the duties as sheriffs are required to perform them; shall be liable to all the penalties to which sheriffs, in similar cases, are liable; and shall be entitled to the same fees as sheriffs are entitled to for similar services. The examiners shall be entitled to such compensation as the supreme court may determine as fair equivalent for the services. performed; and all such fees and compensation shall be taxed in the bill of costs; but no costs shall be adjudged against the state, nor against the successful petitioners on a return of "no property found" against the defendant, but may be paid out of the state treasury in all cases when the governor thinks it right to pay the same. 4879. Compensation of witnesses; how state witnesses before supreme court paid.-Witnesses in impeachment cases are entitled to the same fees and compensation as witnesses in civil cases in the circuit court, to be certified in the same manner and taxed and collected as costs. The examiner must file with his return a statement showing the names of witnesses examined by each party and the fees and compensation to which they are entitled. When the proceeding is upon the information of the attorney-general, the fees of witnesses on the part of the state, attending before the supreme court, must be paid out of the state treasury on warrant of the auditor, drawn upon the certificate of the clerk showing the fees and compensation to which the witness is entitled and the approval of the attorney-general indorsed thereon; but the same must be taxed as costs, and if collected of the defendant must be, by the clerk, paid into the state treasury. 4880 (4833) (4060). Final record to be made.—The clerk, or if he is the accused, the person acting as clerk, of the court in which the trial is had, shall make and preserve a final record of the proceedings, in all respects as clerks of the circuit courts are required to do of trials had therein; and all laws applicable thereto are made applicable to final records and proceedings under this chapter. 4881 (4834) (4061). Appeals to supreme court. From any final judgment or decision rendered by any circuit, city, or criminal court, in proceedings under this chapter, an appeal shall lie to the supreme court in favor of the unsuccessful party; and such appeal must be taken within ten days after judgment rendered, and shall be taken to the first day to which such appeal can be made returnable, and not afterwards; and notice of appeals shall be given as in other cases, Such appeal shall have precedence and priority of all other appeals. 4882 (4835) (4062). Security for costs.-If the appeal be taken by the state in cases instituted in its name, by the attorney-general or solicitor, no security for costs shall be required. In all other cases, security for costs shall be required as in appeals to the supreme court in civil causes; and such appeal shall not suspend the judgment of conviction. 4883 (4836) (4064). Amendments allowed; to what facts witnesses may testify.-In all cases instituted under the provisions of this chapter, any and all amendments, necessary to a trial of the cause upon its merits, shall be allowed; and witnesses may testify to any facts or circumstances within their knowledge, which may show or tend to show that the accused has been guilty of any of the offenses or delinquencies charged against him, or is incompetent, as the case may be; and, in like manner, the accused must have a similar right to introduce like evidence to show that he has not been guilty of the offenses or delinquencies charged against him, or that he is not incompetent, as the case may be. 4884 (4837) (4065). Duty of clerks in certifying vacancy in office on conviction.-It shall be the duty of the clerk of the supreme court, in all cases, when final judgment of conviction is rendered in that court, on appeal or otherwise, forthwith to certify the vacancy thus created to the appointing power, with a copy of the judgment; and, in like manner, the clerk of the circuit, city, or criminal court shall certify to the appointing power any final judgment of conviction rendered in such court, from which no appeal is taken. 4885 (4838) (4066). Extent of judgment; liability of accused to indictment.-No statute of limitations shall be valid as a bar to any of the proceedings provided for by this chapter; but the penalties in cases arising under the provisions of this chapter shall not extend beyond the removal from office, and the disqualification from holding office under the authority of this state for the term for which the accused was elected or appointed; but the accused shall be liable to indictment, trial and punishment, as prescribed by law. 4886 (4839) (4067). Duty of grand jury; when report of grand jury transmitted to attorney-general.-It shall be the duty of every grand jury to investigate and make diligent inquiry concerning any alleged misconduct or incompetency of any public officer in the county, which may be brought to their notice; and if, on such investigation and inquiry, they find that such officer, for any cause mentioned in this chapter, ought to be removed from office, they shall so report to the court, setting forth the facts, which report shall be entered on the minutes of the court. If the officer so reported against is one of those included in section 2, article seven of the constitution, the clerk of the court shall transmit a certified. copy of such report to the attorney-general. If the officer so reported against is the presiding judge of the court, the report must not be made to the court, or entered on the minutes; and, in such cases, the report of the grand jury must be signed by the foreman, and countersigned by the solicitor of the circuit, who must transmit the same to the attorney-general. Sufficiency of report of grand jury.-Seawell's case, 64 Ala. 225; Savage's case, 89 Ala. 1. That the report was not made by twelve grand jurors, or was not founded on legal evidence, cannot be raised for the first time in the supreme court.-Savage's case, 89 Ala. 1. ed Feb. 18, 4887 (4840) (4068). Duty of attorney-general and solicitors. As amend It shall be the duty of the attorney-general to institute proceed- 1893, p.677. ings under this chapter, and prosecute the same against any officer included in section 2, article seven of the constitution, when the supreme court shall so order, or when the governor shall, in writing, direct the same, or when it appears from the report of any grand jury that any such officer ought to be removed from office, for any cause mentioned in the first section of this chapter. And it shall be the duty of the solicitor of the circuit to institute proceedings under this chapter, and prosecute the same against any officer included in section 3, article seven of the constitution, when the circuit, city, or criminal court of the county shall so order, or when the governor, in writing, shall direct the same, or whenever it appears from the report of the grand jury that any such officer ought to be removed from office for any cause mentioned in the first section of this chapter. 4888 (4841) (4070). Proceedings when defendant has removed, absconded, or secreted himself.-If, in any case of proceedings for impeachment or removal from office under this chapter, the defendant has removed, absconded, or secreted himself, so that the summons cannot be served on him personally, the sheriff, or other officer to whom the summons is issued, shall serve the same by leaving a copy thereof at the office of the defendant, if known, or at his last place of residence; and the sheriff shall forthwith publish in some newspaper, published in the county, or if no newspaper is published in the county, then in the newspaper published nearest thereto, a copy of the summons and notice to the defendant where a copy thereof had been left for him. The sheriff shall make return of the summons as in other cases, stating the facts; and such service shall be as valid, to all intents and purposes, as personal service on the defendant; and if the defendant fails to appear pursuant to the summons, whether served personally, or as provided by this section, the court shall cause the plea of not guilty to be entered for him, and the trial shall proceed as in other cases. CHAPTER 160. INCEST. 4889, 4890. 4889 (4013) (4187) (3601) (60). By intermarriage or sexual intercourse. If any man and woman, being within the degrees of consanguinity or relationship within which marriages are declared by law to be incestuous and void, and knowing of such consanguinity or relationship, intermarry, or have sexual intercourse together, or live together in adultery, each of them must, on conviction, be imprisoned in the penitentiary for not less than one, nor more than seven years. (Form 54.) The man may be guilty though the facts make a case of rape.-Smith's case, 108 Ala. 1. If crime committed by force, victim not guilty.-Ib. Natural children are within the statute.-Morgan's case, 11 Ala. 289; Baker's case, 30 Ala. 521. Code form of indictment sufficient.-Baker's case, 30 Ala. 521. Defendant's confession of relationship admissible against him.-Morgan's case, 11 Ala. 289. 4890 (4014) (2673). On conviction, the marriage annulled.-On conviction for incest for marrying within the prohibited degrees, the court must declare such marriage null and void, and may require the parties to enter into a recognizance, with sufficient sureties, that they will not thereafter cohabit. 4917, 4918. 4. AMENDMENTS; NOLLE PROSEQUI; NEW INDICTMENT. 4921, 4922. 7.-FORMS OF INDICTMENT. 4923. ARTICLE 1. DEFINITION, FORM AND CONTENTS. 4891 (3702) (4781) (4108) (558). Indictable offenses.-All felonies and all misdemeanors, originally prosecuted in the circuit or city court, are indictable offenses. 4892 (4364) (4782, 4783) (4109, 4110) (559, 560). Definition; not distinguished from presentment.-An indictment is an accusation in writing presented by the grand jury of the county, charging a person with an indictable offense; the distinction between indictments and presentments is abolished. Mose's case, 35 Ala. 425. 4893 (4365) (4784) (4111) (561). Caption and conclusion.-An indictment must contain, in the caption or body thereof, the name of the state, county, court and term, in and at which it is preferred, and must conclude "against the peace and dignity of the State of Alabama." The nature, office and materiality of the caption.-Goodloe's case, 60 Ala. 93; Overton's case, Ib. 73; Harrington's case, 36 Ala. 236; Reeves's case, 20 Ala. 33 ; Murphy's case, 9 Port. 487; Rose's case, Minor, 28. Must be sufficiently shown by the record.-Goodloe's case, supra. Looked to in aid of indictment as part of record.-Morgan's case, 19 Ala. 556; Lawson's case, 20 Ala. 65; Noles's case, 24 Ala. 672; Perkins's case, 50 Ala. 154. Applies to each count, and is not struck out, though first count quashed.-Pairo's case, 49 Ala. 25. Immaterial if words "city court," instead of "city court of Selma," are used.-Harrison's case, 55 Ala. 239; Bonner's case, Ib. 242. If it states the name of the county, omission of word "county" from body of indictment is not material defect.—Caldwell's case, 49 Ala. 34. Nor the substitution of the word "court" for "county."-Perkins's case, 50 Ala. 154. And the same as to the term at which the indictment was found.—Quinn's case, 49 Ala. 353. Not necessary that each count should conclude "against the peace and dignity of the State of Alabama,” if_the indictment so concludes.-McGuire's case, 37 Ala. 161. And it is not demurrable for concluding "against the peace and dignity of the State of Alabama" (as in the statute), instead of "against the peace and dignity of the state" (as in the constitution, article six, section 28).-Washington's case, 53 Ala. 29. But if the "State of Alabama" is mentioned in the caption, the conclusion may be "against," etc., of "the state," without adding "of Alabama."-Atwell's case, 63 Ala. 61. 4894 (4366) (4824) (4141) (591). Forms in Code sufficient.-The manner of stating the act constituting the offense, as set forth in |