Lawrence's case, 84 Ala. 424 (5 So. 33); Smith's case, 83 Ala. 26 (3 So. 551); 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 (15 So. 438). 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 (13 So. 329). 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 Ala. 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 (5 So. 651). 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 (17 So. 119); Williams's case, 103 Ala. 33 (15 So. 662); McCormack's case, 102 Ala. 156 (15 So. 438); Gunter's case, 111 Ala. 23 (20 So. 632). 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 (5 So. 426); Gibson's case, 89 Ala. 121 (8 So. 98); Keith's case, 97 Ala. 32 (11 So. 914); Holmes's case, 100 Ala. 80 (14 So. 864); McCormack's case, 102 Ala. 156 (15 So. 438); Henson's case, 112 Ala. 41 (21 So. 79); 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, 86 Ala. 16 (5 So. 651); Williams's case, 77 Ala. 53. What necessary to justify use of deadly weapon in resistance of assault.-Jackson's case, 94 Ala. 85 (10 So. 509). When malice presumed from the use of a deadly weapon.-Williams's case, 77 Ala. 53; Crawford's case, 86 Ala. 16 (5 So. 651); Jolly's case, 94 Ala. 19 (10 So. 606). Sudden passion from an immediate insult is not enough to repel the imputation of malice.-Lane's case, 85 Ala. 11 (4 So. 730). 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. Aiding and abetting an assault with intent to murder.-Buford v. State, 132 Ala. 6 (31 So. 714). Conspiracy to commit assault.-Hicks v. State, 123 Ala. 15 (26 So. 337). 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 (9 So. 613); Jolly's case, 94 Ala. 19 (10 So. 606); Martin's case, 89 Ala. 115 (8 So. 23); Elmore's case, 110 Ala. 63 (20 So. 323). If defendant himself made the assault, proof of the conspiracy is not necessary.-Jolly's case, 94 Ala. 19 (10 So. 606). 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 (20 So. 323). Conduct of accused admissible in evidence.-Avery v. State, 124 Ala. 20 (27 So. 505). To set up self-defense, defendant must be free from fault in bringing on the difficulty.-Welch v. State, 124 Ala. 41 (27 So. 307). Homicide from exposure, when manslaughter and when murder; abandonment of infant to constitute assault with intent to murder.-Pallis v. State, 123 Ala. 12 (26 So. 339). There is apparently deadly potency in an ordinary gun charged with No. 6 shot at twenty steps.Christian v. State, 133 Ala. 109 (32 So. 64). Evidence as to wound inflicted upon a person other than the one named in the indictment; when defendant can strike in defense of another than himself; when evidence of character of person assaulted is admissible.-Surginer v. State, 134 Ala. 120 (32 So. 277). Evidence as to previous difficulty; liability of one for acts of others; evidence of former difficulty and freedom from fault.-Deal v. State, 136 Ala. 52 (34 So. 23). Evidence that shooting was accidental; defendant cannot testify to his own uncommunicated motive, purpose, or intention.-Holmes v. State, 136 Ala. 80 (34 So. 180). Confession shown to be voluntary by circumstances; specific intent to shoot person assaulted not necessary.-Bush v. State, 136 Ala. 85 (33 So. 878). Plea of former conviction may be good though based on conviction by a recorder's court.-Jackson v. State, 136 Ala. 96 (33 So. 888), see Harris v. State, 128 Ala. 41 (29 So. 581). Former jeopardy does not exist when an investigation was had before committing magistrate. Spraggins v. State, 139 Ala. 93 (35 So. 1000). Where defendant was shot from ambush.-Spraggins v. State, 139 Ala. 93 (35 So. 1000). A mere trespass does not excuse commission of felony; offense committed in resisting arrest.-Dryer v. State, 139 Ala. 117 (36 So. 38). Proof of defendant's good character not admissible in trial for assault with intent to murder.Morgan v. State, 88 Ala. 223 (6 So. 761). Admissibility of threats against third person.-Shackleford v. State, 79 Ala. 26. Murder by administering poison. Shackleford v. State, 79 Ala. 26. Former conviction of assault and battery with a stick may be good defense.-Moore v. State, 71 Ala. 307. The crime cannot be split up into two or more distinct offenses.-Moore v. State, 71 Ala. 307. Jury alone can determine and fix amount of fine; court cannot do so; what judgment can and should be rendered on failure to pay fine, and costs.-Nelson v. State, 46 Ala. 186. Girl under ten years of age may be substituted for the word "woman" in an indictment for assault with intent to ravish.-King v. State, 120 Ala. 329 (25 So. 178). Evidence of previous difficulty; conspiracy to commit the crime; revenge for previous wrong is tantamount to malice.-Ellis v. State, 120 Ala. 333 (25 So. 1); McRae v. State, 120 Ala. 359 (25 So. 214). Burder of proof as to selfdefense is upon the defendant.-Lewis v. State, 120 Ala. 339 (25 So. 43). Conviction may be had under this statute for simple assault or assault and battery.—Curry v. State, 120 Ala. 366 (25 So. 237). Duty to retreat and freedom from fault in bringing on difficulty.-Scoggins v. State, 120 Ala. 369 (25 So. 180); Hendricks v. State, 122 Ala. 42 (25 So. 242). That person assaulted had seduced defendant's sister no defense.-Scoggins v. State, 120 Ala. 369 (25 So. 180). Court should not ex mero motu charge that 75, 80, or 90 per cent of cases set up self-defense.-Jones v. State, 120 Ala. 383 (25 So. 25). Where warrant is lost, alias may be issued; limitation of prosecution; issuing warrant suspends statute of limitations.—Clayton v. State, 122 Ala. 91 (26 So. 118). Conviction in municipal court no defense to prosecution by state. Harris v. State, 128 Ala. 41 (29 So. 581), see Jackson v. State, 136 Ala. 96 (33 So. 888). Indictment charging assault with intent to murder will authorize a conviction for simple assault.-Sankey v. State, 128 Ala. 51 (29 So. 578). Evidence, when not shown to be part of the res gestae; evidence as to flight of defendant.-Bodine v. State, 129 Ala. 106 (29 So. 926). 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 (8 So. 566); Horn's case, 98 Ala. 23 (13 So. 329); Lawrence's case, 84 Ala. 424 (5 So. 33); Drake's case, 110 Ala. 9 (20 So. 450); Elmore's case, 110 Ala. 63 (20 So. 323); Walker's case, 85 Ala. 7 (4 So. 686); 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 (17 So. 119). 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 (9 So. 408). 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 (13 So. 329). Includes, also, an attempt to commit an assault, and charge ignoring this feature is properly refused.-White's case, 107 Ala. 132 (18 So. 226). Election: Where defendant fired three shots in quick succession at the person assaulted, state not required to elect.-Ellis's case, 105 Ala. 72 (17 So. 119). 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, 111 Ala. 23 (20 So. 632). Indictment may, in different counts, allege assault on different persons; if evidence discloses two distinct acts, state required to elect.-Tanner's case, 92 Ala. 1 (9 So. 613). Drunkenness: Not 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 (4 So. 686); Englehardt's case, 88 Ala. 100 (7 So. 154). 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 (7 So. 154). 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 (4 So. 686). Testimony that shooting "was accidental" properly excluded as a conclusion.-Gunter's case, 111 Ala. 23 (20 So. 632). "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 (11 So. 338); Lee's case, 92 Ala. 15 (9 So. 407); Brinkley's case, 89 Ala. 34 (8 So. 22); Naugher's case, 105 Ala. 26 (17 So. 24). 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, p. 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.-Adam's case, 48 Ala. 421. And 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.Burn'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 (8 So. 383); Toulet's case, 100 Ala. 72 (14 So. 403); Norris's case, 87 Ala. 85 (6 So. 371). Force, actual or constructive, necessary, even (under this section) in case of child under ten.-Toulet's case, 100 Ala. 72 (14 So. 403). Intent to gratify desire against consent of female must be shown beyond reasonable doubt.-Jones's case, 90 Ala. 628 (8 So. 383). 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 (6 So. 371). 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. note to § 7696. 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. Defendant being drunk as a defense to assault with intent to ravish. Whitten v. State, 115 Ala. 72 (22 So. 483). Character of defendant for running after women admissible in evidence for assault with intent to ravish.-Balkum v. State, 115 Ala. 117 (22 So. 532). Evidence of complaint of prosecutrix in case of assault with intent to rape confined to bare fact of complaint.-Bray v. State, 131 Ala. 46 (31 So. 107). Assault and battery; carrying concealed weapon not infamous crime; intent to rape question for jury. Smith v. State, 129 Ala. 89 (29 So. 629). Premeditation is not a necessary element in the offense of an assault with intent to murder.-Smith See v. State, 141 Ala. 59 (37 So. 423); Wood v. State, 128 Ala. 27 (29 So. 557). An assault with intent" to murder, or an assault "to commit" murder were each, at common law, misdemeanors.-Smith v. State, 141 Ala. 59 (37 So. 423). Alibi, burden of proof; sufficiency of charge.-Hatch v. State, 144 Ala. 50 (40 So. 113). Intent to murder; circumstances from which intent may be inferred.-Brown v. State, 142 Ala. 287 (38 So. 268). Drunkenness may negative intent; malice presumed from use of deadly weapon; knife is deadly weapon; where defendant would have been guilty of manslaughter only if party assaulted had died.-Brown v. State, 142 Ala. 287 (38 So. 268). 6310. (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. ASSIGNMENT FOR BENEFIT OF CREDITORS (Civil Code)....6054 et seq. ASSOCIATE JUSTICES (Civil Code) ASSUMING OFFICE ILLEGALLY (Criminal Code) ASYLUM (Political Code) .2094 et seq. ..2102 et seq. .5948 et seq. 7446 838 et seq. CHAPTER 166. ATTEMPTS. 6311. 6311. Jury may find the attempt.-Upon the trial of an indictment for any offense, the jury may find the accused not guilty of the offense charged in the indictment, but, if the evidence warrants it, guilty of an attempt to commit such offense, without any special count in the indictment for such attempt. CROSS REFERENCES. ATTEMPTS (Criminal Code)....6311, 7702, 7699, 6297, 6866-6868, 6215, 7315 Mar. 4, 1901, p. 179,6 2. Ib. CHAPTER 167. ATTORNEYS AT LAW, AND THE PRACTICE OF LAW; CRIMINAL 6312. Attorney encouraging litigation; champerty.-Any attorney at law either before or after action brought, who gives, offers, or promises to give a valuable consideration to another person as an inducement to placing in the hands of such attorney or in the hands of any partnership of attorneys, or in the hands of any other attorney a demand of any kind for the purpose of bringing suit or making claim against another person or corporation, or partnership, or who gives, or offers or promises a valuable consideration to any person, in consideration of such person having so placed in his hands as an attorney, or of any other attorney, partnership, or firm of attorneys, a demand of any kind for the purpose of bringing suit or making claim against another; or who employs or offers to employ any person to search for or procure clients to be brought to such attorney or any other attorney, or partnership or firm or attorneys; or who employs or offers to employ a person to search for or procure business for himself as attor ney or for any other attorney, firm, or partnership of attorneys, shall be guilty of a misdemeanor, and on conviction shall be fined in a sum not exceeding one thousand dollars, and also be removed and disbarred from practicing as an attorney at law in this state, and may be imprisoned in the county jail or sentenced to hard labor for the county for a term not exceeding six months, at the discretion of the court trying the case. 6313. Person receiving compensation from attorney for placing in attorney's hands demands for suit or compromise.Any person who shall, before or after suit brought, receive or |