[Lee v. The State.]

verse the finding of the primary court.-Ex parte Weaver, at the present term. If a verdict of guilty were pronounced by a jury, on the testimony found in this record, and there were no other circumstances against such finding except the insufficiency of the proof, even when the charge and conviction were of the highest grade of homicide, we do not think the presiding judge would feel called upon to set the verdict aside, as not supported by sufficient proof. This is the rule we have laid down in such cases.-Ex parte McAnally, December term, 1875.

We do not wish to prejudice the defendant's rights, when they come before a jury for decision. That is not the question before us. The jury should be untrammelled by any thing we have said. We have simply laid down rules which govern us, in granting or withholding relief by habeas corpus. The application of the prisoner is denied, with costs.

Lee v. The State.

Indictment for Murder.

1. Special venire for trial of capital case.-The statute which requires that the special venire in a capital case shall include "those summoned on the regular juries for the week" (Rev. Code, § 4173), as shown by a subsequent section (4177), means the regular jurors who are "in attendance," and does not include those who, though summoned as regular jurors, were excused or discharged when the regular juries were organized.

2. Sufficiency of indictment, in averment of defendant's name.-Under our liberal statutory provisions (Rev. Code, § 4113), the Christian name of the defendant may be averred under an alias.

FROM the Circuit Court of Pike.

Tried before the Hon. H. D. CLAYTON.

The indictment in this case, which was found at the October term, 1875, charged that the prisoner, "Eli E. Lee, alias Tobe Lee, unlawfully, and with malice aforethought, killed George W. Carroll, by shooting him with a pistol." The defendant pleaded not guilty, and the trial was had on issue joined on that plea. On the trial, as the bill of exceptions shows, the defendant moved to quash the venire, because the list of jurors specially summoned for his trial did not contain the names of all the regular jurors who had been summoned for the week, five of them having been excused by the court when organizing the regular juries. The court overruled the motion, and the defendant excepted. After convic

[Thomas v. The State.]

tion, the defendant moved in arrest of judgment, on account of the insufliciency of the indictment in averring his name under an alias. The court overruled the motion, and pronounced judgment according to the verdict of the jury, sentencing him to imprisonment in the penitentiary for the term of forty years.

W. D. ROBERTS, for the prisoner.

JNO. W. A. SANFORD, Attorney-General, for the State.

STONE, J.-In Floyd v. The State, at the present term, we decided the main question in this cause adversely to the present appellant. The Circuit Court did not err in refusing to quash the venire.-See Rev. Code, $ 4177.

2. We do not think there is any thing in the objection, that the Christian name of the defendant is stated under an alias dictus. Some ancient authorities look that way; but such technicality is at war with the spirit of our statutes.Rev. Code, § 4113; Skinner v. The State, 30 Ala. 524; Bryant v. The State, 36 Ala. 270; 1 Bish. Cr. Proc. §§ 678, 681. Judgment of Circuit Court affirmed.

1.

44

Thomas v. The State.

Indictment for Night-Walking.

Night-walker"; when indictable.--At common law, a night-walker was held to be a suspected person, rather than a criminal, and might be arrested, and kept in custody until the next morning, and then taken before a magistrate for examination, and required to find sureties for good behavior; but was not indictable, unless upon the further charge of some unlawful purpose or intent; and this principle of the common law, in the absence of a statute changing it, is of torce here.

2. Same; sufficiency of indictment.—An indictment which charges that the defendant, a woman, "was a common night-walker, and did walk and ramble in the streets and common highways at unseasonable hours of night, without having any lawful business, and without any necessity therefor, against good morals and good manners, to the common nuisance of all good people of said county," &c., does not contain a sufficient charge of an evil or unlawful purpose, and will not support a conviction.

FROM the City Court of Montgomery.

Tried before the Hon. JOHN A. MINNIS.

The indictment in this case contained only one count, which charged that the defendant, Celia Thomas, "before

[Thomas v. The State.]

the finding of this indictment, was a common night-walker, and did walk and ramble in the streets and common highways at unseasonable hours of night, without having any lawful business, and without any necessity therefor, against good morals and good manners, to the common nuisance of all good people of the county; against the peace," &c. The defendant demurred to the indictment, on the ground that it did not state any offense known to the law. The court overruled the demurrer, and held the indictment sufficient. There was a motion in arrest of judgment on the same ground, which was also overruled. Exceptions were reserved by the defendant to these rulings of the court, and they are here urged as error.

JNO. GINDRAT WINTER, for the prisoner.

JNO. W. A. SANFORD, Attorney-General, for the State.

MANNING, J.-A night-walker, simply as such, seems, by the old English law, to have been held to be a suspected person, rather than a criminal, and to be therefore liable to be arrested, and kept in custody until the next morning, and then to be taken before a magistrate for examination, who might require him or her to find sureties for good behavior, if under the circumstances that were thought proper.-1 Burns' Justice, 942, title "Eves droppers"; 3 Hawk. Pl. of the Cro. (7 Eng. ed. by Leach), 64, § 20; 2 Ib. 14. § 4; Lawrence v. Hedger, 3 Taunt. 14.

A common night-walker was sometimes liable to indictment also.-3 Hawk. 78, § 64. But this was allowed, we presume, upon a further charge that he or she was a nightwalker with some criminal or unlawful purpose or intent-as, for instance, to eve-drop men's houses, "to hearken after discourse, and thereupon to frame slanderous and mischievous tales;" "or to cast men's gates, carts, or the like, into ponds, or commit other outrages or misdemeanors in the night" (1 Burns' Justice, ubi supra); or "a woman walking up and down the streets to pick up men," for lewd intercourse.-Lawrence v. Hedger, supra.

2. In State v. Dowers (45 N. H. 543), an indictment was sustained, which charged that the defendant, a woman, “was a common night-walker, and from the said tenth day of July to the day of filing the complaint, during divers nights within the time aforesaid, did walk and ramble in the streets and common highways in the said city of Portsmouth, at unseasonable hours of said nights, without having any lawful business, and without any necessity therefor, against good mor

[Ex parte Mason.]

als and good manners." This was more particular in charging circumstances tending to show a misdemeanor, than the indictment before us is; and the offense, it appears from the opinion of the court, was one declared to be such by statutes of New Hampshire. In this State, we have no statute on this subject; and recourse must be had to the common law for support of the indictment in this cause. We think that, according to it, there is not a sufficient charge of an evil or unlawful purpose in this indictment.

Judgment reversed, and cause remanded.

1.

Ex parte Mason.

Application for Mandamus to State Auditor.

Sheriff's compensation for feeding prisoners.-Under the act "in relation to feeding prisoners in jail," approved February 9, 1877 (Sess. Acts 1876–7, p. 65), which reduces the compensation of sheriffs for feeding prisoners in jail, from forty to thirty cents per day, while the proviso declares "that the provisions of this act shall not apply to any sheriff in office at the time of the adoption of the constitution now in force, but shall be of force after the expiration of the terms of such sheriffs"; a sheriff who has been appointed since the passage of the act, to fill the unexpired term of one who was in office at the time of its passage, can not claim the benefit of the proviso.

APPLICATION by George R. Mason for a mandamus to Hon. WILLIS BREWER, State auditor, to compel that officer to draw his warrant on the State treasurer, in favor of the petitioner, for the sum of $582, the amount of the petitioner's account, as sheriff of Dallas county, for feeding prisoners in the county jail of Dallas, during the month of May, 1877, at the rate of forty cents per day. The petition alleged that said Mason was appointed to the office of sheriff by the governor, on the 3d March, 1877, to fill the unexpired term of Charles M. Shelley, who had been appointed to fill a vacancy caused by the failure of one Hamilton White (who had been elected in November, 1874) to file his bond within the time prescribed by law; that he had presented his account, properly sworn to and certified, to the auditor, who refused to allow it, on the ground that the charges were excessive; that he had then applied by petition to Hon. JOHN A. MINNIS, the judge of the City Court of Montgomery, for a mandamus to the auditor, and that said judge refused to grant the writ. The only question in the case involves the construction of the proviso to the act approved February 9, 1877, entitled, "An act in

[Ex parte Mason.]

relation to feeding prisoners in jail," which is copied in the opinion of the court.

W. BOYLES, and E. W. PETTUS, for the petitioner, cited Dwarris on Statutes, 110; 54 Penn. St. 180; Walker, Mich. 394; 3 Story, 87; 4 Zabr. 86; 1 Wheat. 30; 1 Kent's Com. 462.

JOHN W. A. SANFORD, Attorney-General, for the State.

STONE, J.—The act "In relation to feeding prisoners in jail," approved February 9th, 1877 (Pamph. Acts, 65), declares, "that from and after the passage of this act, the sheriffs of the different counties in this State shall be allowed thirty cents per day for feeding prisoners in jail, to be paid as now prescribed by law." There is a proviso, "That the provisions of this act shall not apply to any sheriff in office at the time of the adoption of the constitution now in force, but shall be of force after the expiration of the terms of such sheriffs." Under the provisions of this statute, the general result was to reduce the pay of sheriff's for feeding prisoners in jail to thirty cents per day. Such would have been the immediate effect upon all sheriffs then in office, if the statute had contained only the first clause. But, in the proviso, it is declared, that the act shall not "apply to" a named class of persons, or persons in certain named conditions. What are the conditions? First, the person claiming that the statute does not apply to him, must be a "sheriff in office at the time of the adoption of the constitution now in force." But it does not apply, for all time, to persons who filled this condition. It was not a continuing personal privilege granted to this class of persons. Persons then holding the office of sheriff might be afterwards re-elected to another term. The intention was not to extend the privilege through a second term. Hence, to come within the proviso, the sheriff must meet the requirement of a second condition. He must not only have been in office at the time of the adoption of the constitution now in force; but, the claim of exemption from the operation of the statute, to be available, must be during the then term of his office as sheriff. After the expiration of his then term of office, the provisions of the statute apply to him as to all other persons. The petitioner, in the present case, meets neither of the required conditions.

Judgment of City Court of Montgomery affirmed, and mandamus refused.