boundary.-Jackson's case, 90 Ala. 590; McKay's case, 110 Ala. 19. Variance between allegations and proof, as to the kind of instrument and manner of using it.-Rodgers's case, 50 Ala. 102; Phillips's case, 68 Ala. 469. As to the part taken by persons jointly charged, what immaterial; conviction for striking blow had under evidence for aiding and abetting.-Brister's case, 26 Ala. 107. Charge of court, on different aspects of case; questions for court and jury. Smith's case, 68 Ala. 424; Bland's case, 75 Ala. 574. A charge "that upon the evidence the defendant is guilty of murder in the first degree or nothing," is a charge on the effect of the evidence, and, if given without request of either side, is erroneous.-Beasley's case, 50 Ala. 149. Also erroneous to charge that "defendant cannot be convicted of murder in the first degree unless he had murder in his heart."-Holley's case, 75 Ala. 14. Court must instruct as to the degrees of murder.-Brown's case, 109 Ala. 70. Court must charge on the law of manslaughter unless it is perfectly clear to the judicial mind that there is no evidence reducing the offense to manslaughter.-Dennis's case, 112 Ala. 64; Compton's case, 110 Ala. 24; Brown's case, 109 Ala. 70; Pierson's case, 99 Ala. 148; DeArman's case, 71 Ala. 351. When failure to instruct jury as to constituents of manslaughter, not error.-De Arman's case, 71 Ala. 351. When charge ignoring self-defense not erroneous.-Taylor's case, 48 Ala. 180; Beasley's case, 50 Ala. 149. When there is some evidence of accidental killing, to charge that malice may be inferred from fact of killing, is erroneous.-Hampton's case, 45 Ala. 82. Also, a charge ignoring suicide, or death from conflict, when these circumstances might exist.-Hall's case, 40 Ala. 698. Also, a charge asserting unreasonable beliefs of accused as reasons why he should be acquitted, where there was no evidence of insanity.-Flanagan's case, 46 Ala. 703. Proper charge as to presumptions of intent and consequences of an act.-McElroy's case, 75 Ala. 9. Verdict of jury must ascertain degree of murder, else erroneous.-Brown's case, 109 Ala. 70; Murphy's case, 45 Ala. 32; Hall's case, 40 Ala. 698; Cobia's case, 16 Ala. 781; Johnson's case, 17 Ala. 618; Robertson's case, 42 Ala. 509; Kendall's case, 65 Ala. 492; Dover's case, 75 Ala. 40; Fields's case, 47 Ala. 603; Levison's case, 54 Ala. 520. Yet verdict not ascertaining degree will not authorize discharge on habeas corpus.-Dover's case, 75 Ala. 40. Verdict, though irregular in form, may be sufficient to sustain judgment and sentence.-Lewis's case, 51 Ala. 1; Noles's case, 24 Ala. 672; Bramlett's case, 31 Ala. 376; Harrall's case, 26 Ala. 52; Noles's case, Ib. 31. Verdict must determine character and extent of punishment.-Fields's case, 47 Ala. 603. For murder in second degree, jury may affix any number of years in penitentiary, not less than ten.-Miller's case, 54 Ala. 155. Conviction of lower degree is acquittal of higher.-Fields's case, 52 Ala. 348; Lewis's case, 51 Ala. 1; Nutt's case, 63 Ala. 180; Berry's case, 65 Ala. 117; Smith's case, 68 Ala. 424; Sylvester's case, 72 Ala. 201; De Arman's case, 71 Ala. 351. Yet on a second trial, a conviction may be had for the lower, although proof shows higher degree.-De Arman's case. 71 Ala. 351; Sylvester's case, 72 Ala. 201. Practice as to plea of former conviction on second trial.-De Arman's case, 77 Ala. 10; McQueen's case, 103 Ala. 12; Burton's case, Ala. (22 So. 585); Circuit-court rule 31,Vol. I., p. 1200. Judgment and sentence cannot be rendered unless degree is found.-Brown's case, 109 Ala. 70; Hall's case, 40 Ala. 698; Cobia's case, 16 Ala. 781; Johnson's case, 17 Ala. 618; Robertson's case, 42 Ala. 509; Murphy's case, 45 Ala. 32. Sentencing two prisoners "during their natural lifetime," equivalent to sentencing each for life.-White's case, 30 Ala. 518. A sentence to death, without specifying the day of execution, supreme court, on affirmance, will fix a day. Russell's case, 33 Ala. 366. Punishment of manslaughter; as to whether in penitentiary or at hard labor for the county.-See Evans's case, 109 Ala. 11; Ex parte Goucher, 103 Ala. 305; Brown's case, 102 Ala. 179; Henderson's case. 98 Ala. 35; Zaner's case, 90 Ala. 651; Herrington's case, 87 Ala. 1; Gunter's case, 83 Ala. 96. Irregular verdict in this respect does not operate as an acquittal.-Cases, supra. 4855 (3726) (4297) (3665) (113). Same; killing in duel; degree. Killing by fight in single combat, commonly called a duel, with deadly weapons, is murder in the second degree. 4856 (3727) (4298) (3656) (114). Same; killing in sudden rencounter with concealed weapon.-When the killing in any suddenrencounter or affray is caused by the assailant by the use of a deadly weapon, which was concealed before the commencement of the fight, his adversary having no deadly weapon drawn, such killing is murder in the second degree, and may, according to the circumstances, be murder in the first degree. (Form 64.) Does not apply where the deceased was the assailant.-Scales's case, 96 Ala. 69. Assailant means one who assails or assaults, or who is the aggressor. Scales's case, 96 Ala. 69. If there be a killing without previous malice provoked by abusive language or other offense less than an immediate preceding assault, and the insulted party, maddened by the insult, immediately and without reflection, without time to reflect, with no purpose formed or thought of, takes life with a deadly weapon, this reduces the crime to murder in the second degree, but no lower.-Hornsby's case, 94 Ala. 55. 4857 (3728) (4299) (3657) (115). Same; degree to be found by jury. When the jury find the defendant guilty under an indictment for murder, they must ascertain, by their verdict, whether it is murder in the first or second degree; but if the defendant on arraignment confesses his guilt, the court must proceed to determine the degree of the crime, by the verdict of a jury, upon an examination of the testimony, and pass sentence accordingly. See note to section 4854. 4858 (8729) (4296) (3654) (112). Same; punishment.-Any person, who is guilty of murder in the first degree, must, on conviction, suffer death, or imprisonment in the penitentiary for life, at the discretion of the jury; and any person, who is guilty of murder in the second degree, must, on conviction, be imprisoned in the penitentiary for not less than ten years, at the discretion of the jury. 4859 (3730) (4598) (3656) (114). Same; punishment when committed by convict.-Any convict sentenced to imprisonment for life, who commits murder in the first degree, while such sentence remains in force against him, must, on conviction, suffer death. 4860 (3731) (4301) (3659) (117). Manslaughter; different degrees of.-Manslaughter, by voluntarily depriving a human being of life, is manslaughter in the first degree; and manslaughter committed under any other circumstances is manslaughter in the second degree. (Forms 60, 61.) See note to section 4854. 4861 (3732) (4302) (1112, 1113) (884, 885). Same; by engineer of steamboat, and employer.-In case of the loss of life from the explosion of a boiler, or any apparatus connected therewith, on any steamboat navigating the waters of this state, and the person acting thereon as engineer has not obtained a certificate to act as such engineer, or is acting out of the grade therein specified, or is knowingly employed after the revocation of his certificate, the captain or owner employing such person, and the person so employed or acting are guilty of manslaughter in the first degree. 4862 (3733) (4303) (3660) (118). Same; punishment.--Any person who is convicted of manslaughter in the first degree must, at the discretion of the jury, be imprisoned in the penitentiary for not less than one, nor more than ten years, and any person who is convicted of manslaughter in the second degree must, at the discretion. of the jury, be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than one year, and may also be fined not more than five hundred dollars. This section is modified and controlled by section 5412. See note to that section. 4863 (3734) (4300) (3658) (116). Same; punishment when committed with bowie-knife.-Any person, who, being armed with a razor, bowie-knife, or other knife of like kind or description, commits manslaughter therewith in a sudden rencounter, must, on conviction, be imprisoned in the penitentiary for not less than five, nor more than ten years. CHAPTER 159. IMPEACHMENT OF OFFICERS. 4864-4888. 4864 (4818) (4047). Who may be impeached; grounds of impeachment. The following officers may be impeached and removed from office, to wit: Chancellors, judges of the circuit or city courts, judges of probate courts, solicitors of the circuits, judges of the inferior courts from which an appeal may be taken direct to the supreme court; sheriffs, clerks of the circuit, city, or criminal courts, tax-collectors, tax-assessors, county treasurers, coroners, justices of the peace, notaries public, constables, and all other county officers, and mayors and intendants of incorporated cities and towns in this state, for the following causes, to wit: Willful neglect of duty, corruption in office, habitual drunkenness, incompetency, or any offense involving moral turpitude while in office, or committed under color thereof, or connected therewith. Habitual drunkenness discussed and defined.-Savage's case, 89 Ala. 1; Robinson's case, 111 Ala. 482. For neglect of duty, evidence necessary in support thereof.-Tally's case, 102 Ala. 25. For aiding or abetting in homicide, evidence in support thereof.—Ib. 4865 (4819) (4069). Disqualification a ground of impeachment. Any of the officers named in the preceding section, who shall be disqualified by law from holding office in this state, may be impeached and removed from office on proceedings instituted and prosecuted in the manner herein provided. 4866 (4820) (4048). Proceedings in name of state; upon whose information commenced. - Proceedings under sections 2 and 3 of article seven of the constitution shall be instituted in the name of the State of Alabama, in the nature of an information, by the attorney-general, or circuit solicitor, or upon the information of such other persons as are by this chapter allowed to institute the same; and all such proceedings shall be conducted, and all process shall issue, in the name of the State of Alabama. Impeachment proceedings are governed by the rules of law and evidence applicable to criminal cases.-Robinson's case, 111 Ala. 482; Tally's case, 102 Ala. 25; Savage's case, 89 Ala. 1; Buckley's case, 54 Ala. 549. 4867 (4821) (4049). Five resident taxpayers may institute; must give bond.-Any five resident taxpayers of the division, circuit, district, county, city, or town, for which the officer sought to be impeached was elected or appointed, may institute proceedings of impeachment, under either of the sections of the constitution above expressed, upon giving bond, with sufficient sureties, payable to the officer sought to be impeached, conditioned to prosecute the impeachment to effect, and, failing therein, to pay all costs that may be incurred; which bond shall be taken and approved by the clerk of the court before which the proceedings are proposed to be instituted. 4868 (4822) (4050). Of the information. Such information. shall be addressed to the court before which the trial is to be had, and shall specify, with reasonable certainty, the offense, offenses, or other grounds of impeachment, charged against the officer, within the provisions of section 1 of article seven of the constitution, and shall contain a succinct statement of the facts constituting the matters complained of, and an appropriate prayer for process and relief, and shall be signed by the attorney-general, or solicitor, or by counsel, as the case may be; and when such information is by taxpayers, the names of such taxpayers must be joined as plaintiffs with the state. Sufficiency of information and report.-Savage's case, 89 Ala. 1. 4869 (4823) (4051). In supreme court; order, summons, and copy of information; continuances; precedence of cause.—If such information be filed under section 2 of article seven of the constitution, the supreme court, in term time, or a justice thereof, in vacation, shall make an order, requiring the officer proceeded against to appear at a place, and on a day, which may be either in term time. or vacation, to be specified in the order, and answer the information; the clerk of the court shall issue a summons, in which shall be set forth a copy of the order, directed to any sheriff of the State of Alabama, which, together with a copy of the information, shall be served on the defendant; and if the summons is served twenty days before the day specified in the order, the defendant shall answer the information on the day specified, and if the summons is served less than twenty days before the day so specified, the court, in term time, or a justice thereof, in vacation, shall, on the day so specified, make an order setting another day, not exceeding twenty days thereafter, on which the defendant shall answer the information; and another day may be set, and other summons issued as often as may be necessary, and continuances may be granted in the discretion of the court; but the cases herein provided for shall have precedence and priority over all other business in the court. 4870 (4824) (4052). Proceedings in supreme court.-In all original proceedings commenced under this chapter in the supreme court, either party shall have compulsory process to compel the attendance of witnesses, to be issued by the clerk of the court, and served by the marshal of the court, or by any sheriff of the state; and such witnesses shall be sworn and examined on the trial in open court; the examination of such witnesses shall be conducted, and defaulting witnesses shall be subject to similar proceedings and pen alties, as in criminal cases in the circuit court; but, on the written consent of the defendant, the court, or a justice thereof, in term time or vacation, may appoint one or more examiners, whose duty it shall be, jointly or severally, as may be directed in the order of appointment, to take and certify, by such day as may be fixed in the order of appointment, the evidence against and for the defendant, on the several specifications contained in the information; and the charges shall be tried by the court on such evidence so taken and certified, and such documentary evidence as may be offered; and the court for the trial and impeachment may sit or continue its sessions at any time without reference to the terms as prescribed by law. 4871 (4825) (4053). Powers of examiners; and by whom their process issued.-The examiner or examiners so appointed shall have power to issue subpoenas for witnesses, which shall be served by the sheriff of the proper county, or by any special constable appointed by such examiner or examiners, to compel the attendance of witnesses by attachment, and to punish for contempt by fine or imprisonment in the county jail, and to administer oaths to witnesses, and the oaths administered by such examiners shall, in all respects, be deemed and held to be lawful oaths. Either 4872 (4826) (4054). Proceedings before examiners. party shall have the right to appear before the examiner by himself and counsel, and, to this end, shall have five days' notice of the time and place of his sittings; each party shall have compulsory process to compel the attendance of witnesses; and from the rulings of the examiner on any question of the admissibility and legality of evidence offered, either party may reserve an exception, to be decided by the supreme court. 4873 (4827) (4055). When proceedings in circuit, city or criminal court. If such information is filed in the circuit, city or criminal court, the judge of such court shall make an order, either in term time or vacation, requiring the officer proceeded against to appear at a place, and on a day, which may be either in term time or vacation, to be specified in the order, and answer the information; the clerk of the court shall issue a summons, in which shall be set forth a copy of the order, directed to any sheriff of the State of Alabama, and which, together with a copy of the information, shall be served on such defendant; and another day may be set, and other summons issued, as often as may be necessary, and continuances may be granted in the discretion of the court. 4874 (4828) (4056). In case the sheriff or clerk is impeached. In all cases in which the sheriff is the party accused, all process relating to the cause shall be executed by the coroner of the county, and, if there is no coroner, then by such other person as may be appointed by the court, or the judge in vacation; and if the accused is. the clerk of the court, then the court, or judge thereof, shall appoint a special clerk, who shall be some reliable and responsible person, and who shall perform and discharge all the duties of the office as to this particular case, under the direction of the court, or |