as overseer, the return of his appointment by the sheriff, or proof of such service in case of its loss, and the acts or admissions of such person to that effect are evidence of his being overseer; that the road is a public road may be proved by his acts and admissions, and by the use of it as such; and no proof is required, on the part of the state, except that such person was overseer of the road at the time of the default, and that such road was a public road, and proof of the default. 5399 (4133) (4902) (1872) (1184). Order recognizing road is evidence. Any order of the court of county commissioners, by which a road is recognized as a public road, is presumptive evidence thereof. 5400 (4134) (4259) (1747). Failure to keep principal office of turnpike in proper county.-If the president and directors or managers of any plank, macadamized, or turnpike road company shall fail to hold meetings and keep the principal office for the transaction of the business of such company in the county in which the principal portion of such plank or turnpike road may lie, or at one or the other termini of such road, they shall each be liable to indictment for a misdemeanor, and, on conviction, shall be fined for every such offense fifty dollars; and all acts of the company in violation of the provisions of this section are null and void. 5401 (4135) (4255). Obstructing streams used for floating timber to market.-Any person, who, during the season of high waters, leaves, or causes to be left, in any of the streams of this state used for floating timber to market, saw logs, or hewn or square timber, which he has put, or caused to be put, into such stream, so massed or collected together as to obstruct such stream, and who does not use diligence to effect a removal of such obstructions, must, on conviction, be fined not less than twenty-five, nor more than two hundred and fifty dollars. 1887, p. 1321 5402 (4136) (4254). Obstructing navigable watercourse.-Any Feb. 28, person, who dams up or otherwise obstructs a navigable watercourse, $2. must, on conviction, be fined not less than one hundred, nor more than one thousand dollars. Olive's case, 86 Ala. 88. 5403. Floating logs, timber, or lumber upon watercourse with- Ib. $1. out sufficient force to prevent obstruction.-Any person, who floats any logs, timber, or lumber upon any navigable watercourse, without accompanying the same with sufficient force to prevent the obstruction of such watercourse so as to hinder the removal of any logs, timber, or lumber from the banks or shores thereof, must, on conviction, be fined not less than one hundred, nor more than one thousand dollars. Olive's case, 86 Ala. 88. 5404. Turning logs, timber, or lumber out of boom without Ib. notice to owner.-Any person, owning or controlling any boom in any navigable watercourse, who turns adrift any logs, timber, or lumber caught in such boom, without giving the owner of such logs, timber, Ib. §3. or lumber five days' notice of his intention to do so, must, on conviction, be fined not less than one hundred, nor more than one thousand dollars. 5405. Opening or cutting loose boom without authority.-Any person, who opens the boom of another for any purpose without his permission, or willfully cuts, unties, loosens or casts off any rope, chain, pole, timber, pile, or other fastening by which a boom containing any logs, timber, or lumber is secured, must, on conviction, be fined not less than one hundred, nor more than one thousand dollars. 5406 (4137). Mobile harbor; fastening rafts and obstructing ship-channel in Mobile bay.-Any person, who makes any vessel, boat, or water-craft of any description, or any raft or collection of logs, lumber, or timber, fast to any beacon or light stake or piling which may be of any use or benefit in making use of the dredged channel in the bay of Mobile, is liable to indictment in the city court of Mobile, or circuit court of Mobile county, or any other court of competent jurisdiction, and must, on conviction, be fined not 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. 5407 (4138). Same; injuring ship-channel, beacon-light, etc. Any person, who knowingly or willfully causes, or is concerned in causing, any damage or injury to any part of the dredged channel, as it now exists, or may hereafter exist, at any point or points between the upper or northern limits of the port of Mobile and the lower part of the bay of Mobile, or to any beacon-light, stake, piling, or other matter, or thing, which is or may be used, or intended to be used, in connection with such dredged channel for the better navigation of the same, is liable to indictment in the city court of Mobile, or the circuit court of Mobile county, or any other court of competent jurisdiction, and, on conviction, must be fined not more than ten thousand dollars, and may also be imprisoned in the penitentiary for not more than twenty years. 5408 (4139). Same; master of vessel drawing more than twelve feet passing channel without permit, etc.-Any master or person in charge of any vessel drawing more than twelve feet of water, which may enter into the dredged channel between the upper limits of the port of Mobile and the outer bar of the bay or harbor of Mobile, without a permit from the harbor-master, or in violation of the rules and regulations of the commissioners of pilotage of the port and harbor of Mobile, is liable to indictment in the city court of Mobile, or circuit court of Mobile county, or any other court of competent jurisdiction, and must, on conviction, be fined not more than ten thousand dollars, and may also be imprisoned in the penitentiary for not more than ten years. ARTICLE 13. CONCERNING MINES AND MINING. 1895, $21, 26. 5409. Willful or negligent violation of law and rules pertaining Feb. 18, to mining. Any person, who willfully and intentionally injures any p. 1230, shaft, safety-lamp, instrument, air-course or brattice, or obstructs or throws open any airway in any coal or ore mine; or carries matches, or a pipe or other smoker's article beyond any station inside of which locked safety-lamps are used in such mine; or injures any part of the machinery therein, or opens a door therein and fails to immediately close the same, or opens any doorway therein, the opening of which is forbidden by the inspector of mines; or uses in such mine any oil in a lamp not known to be of the best quality of miners' oil; or does any act whereby the life or health of any person or the security of the mine or machinery is endangered; or neglects or refuses to perform any of the duties required of him by the provisions of chapter 78 of this Code, or violates any of the provisions thereof; or who pulls down, injures or defaces any posted abstract of the law or rules and regulations pertaining to mining, must, on conviction, be fined not more than two hundred and fifty dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than six months. 5410. Mine-operator failing to have ore or coal accurately and correctly weighed.-Any person or corporation operating any ore or coal mine in which miners or other laborers are employed to mine or cut ore or coal for a compensation to be determined by the weight of the ore or coal mined or cut, who fails to weigh, or cause to be weighed, accurately and correctly, any ore or coal so mined or cut by such miners or laborers, must, on conviction, be fined for each offense not less than ten dollars nor more than one hundred dollars. 5411. Mine owner or operator refusing to permit inspection of mine by adjacent owner.-Any owner, operator, or manager of any coal or ore mine who refuses to permit an adjacent owner or lessee of land, or a competent engineer selected by him, to enter and inspect such mine for the purpose of ascertaining whether the same is being so worked as to encroach upon the land of such adjacent owner or lessee, must, on conviction, be fined not more than one hundred dollars. Dec. 17, 1894, p. 245, 1,8. Feb. 28, 1893, p. 331, $1,2 CHAPTER 183. PUNISHMENTS. ARTICLE 1.-LEGAL PUNISHMENTS SPECIFIED. 5412, 5413. 5.-CONFESSION OF JUDGMENT, AND IMPRISONMENT OR HARD LABOR FOR 6.-EFFECT OF SENTENCE. 5427-5429. 7.-EXECUTION OF SENTENCE OF DEATH. 5430-5443. ARTICLE 1. LEGAL PUNISHMENTS SPECIFIED. 5412 (4492) (4450) (3755) (208). Legal punishments specified; when court may sentence to hard labor.-The only legal punishments, besides removal from office and disqualification to hold office, are fines, hard labor for the county, imprisonment in the county jail, imprisonment in the penitentiary, which includes hard labor for the state, and death by hanging. And in all cases in which the period of imprisonment in the penitentiary, or hard labor for the county, is more than two years, the judge must sentence the party to imprisonment in the penitentiary; and in all cases of conviction for felonies, in which such imprisonment or hard labor is for more than twelve months, and not more than two years, the judge may sentence the party to imprisonment in the penitentiary, or confinement in the county jail, or to hard labor for the county, at his discretion, any other section of this Code to the contrary notwithstanding; and in all cases in which the imprisonment or sentence to hard labor is twelve months, or less, the party must be sentenced to imprisonment in the county jail, or to hard labor for the county. This section is construed to amend and control other sections of this Code prescribing place of punishment, so far as they are in conflict with it; hence, in all cases, if sentence be for more than two years, it must be to the penitentiary; if for more than one year and not more than two, it may, in the discretion of the judge, be either to the penitentiary, or hard labor for the county, or the county jail; if for one year or less, it must be to hard labor for the county, or to the county jail.-Ex parte Thomas, 113 Ala. 1; Evans's case, 109 Ala. 11; Ex parte Brown, 102 Ala. 179; Ex parte Goucher, 103 Ala. 305; Henderson's case, 98 Ala. 35; Zaner's case, 90 Ala. 651; Herrington's case, 87 Ala. 1; Gunter's case, 83 Ala. 96; Hobbs's case, 75 Ala. 1; Steele's case, 61 Ala. 213. On plea of guilty to charge of embezzlement, sentence to one year in the penitentiary erroneous.-Herrington's case, 87 Ala. 1; in such case the sentence will be reversed back to conviction and the cause remanded for proper sentence.-Ib. On conviction for manslaughter in first degree, the jury have no authority to prescribe one year in the penitentiary; if sentence passed in pursuance of such verdict, the judgment of conviction will be reversed on appeal. Zaner's case, 90 Ala. 651 (distinguishing Herrington's case, supra). Ór defendant discharged on habeas corpus.-Ex parte Brown, 102 Ala. 179. The court should not receive such a verdict until corrected.-Ib.; Ex parte Goucher, 103 Ala. 305. If received, but disregarded as to place of punishment, and defendant sentenced to hard labor for the county for one year, he will not be discharged on habeas corpus.-Ex parte Goucher, 103 Ala. 305. The discretion of the jury is exhausted in fixing the time or number of years the punishment is to continue, the law fixing the place or, within the limits here fixed, leaving to the discretion of the judge.-Evans's case, 109 Ala. 11. Hence a verdict in manslaughter, fixing punishment at fifteen months in the penitentiary, will support sentence to hard labor for the county for that term.—Ib. And additional term for costs.-Ib. The punishment being fixed by the jury at two years, the court has authority to sentence to hard labor for the county for that period.-Henderson's case, 98 Ala. 35. For grand larceny, the time being fixed at one year, defendant properly sentenced to hard labor for the county for that period.-Ex parte Thomas, 113 Ala. 1. And additional term for costs.-Ib. For forgery in second degree, two years having been fixed upon, the court may sentence to penitentiary, or to hard labor for the county; and, to latter sentence, may add sentence for costs.-Hobbs's case, 75 Ala. 1. Sentence to hard labor in penitentiary is, in substance and legal effect, a sentence to imprisonment in the penitentiary.-Brown's case, 74 Ala. 478. Verdict fixing punishment at "thirty months hard labor" authorizes and requires sentence to penitentiary for that period.-Gunter's case, 83 Ala. 96. Sentence to longer or shorter term than allowed by law, is void.-Brown's case, 47 Ala. 47: Ex parte Brown, 102 Ala. 179. Verdict fixing penalty at "imprisonment for life" will support sentence to penitentiary for life.-McGuff's case, 88 Ala. 147. As to sentence for costs, see note to section 5426. 5413 (4493)|(4451) (3756) (209). Benefit of clergy.-There is no benefit of clergy in this state. ARTICLE 2. OFFENSES NOT SPECIALLY PROVIDED FOR. 5414 (4192) (4447) (3754) (207). Misdemeanor for which no special punishment has been provided.-Any person, who commits a public offense, which is a misdemeanor at common law, or by statute, and the punishment of which is not particularly specified in this Code, must, on conviction, be fined not 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 mouths.. 5415 (4494) (4484, 4506) (3782, 3806) (258). Punishment; when fixed by the court.-When an offense is punishable by imprisonment in the penitentiary, or hard labor for the county, the court must impose the term of punishment, unless the power is expressly conferred on the jury. When law requires court to fix punishment, error to leave it to jury. Leoni's case, 44 Ala. 110. Verdict of guilty merely does not authorize court to fix a fine.-Melton's case, 45 Ala. 56. Verdict of guilty where the fine is fixed by statute.-McPherson's case, 54 Ala. 221. Does not authorize court to impose fine.-Melton's case, 45 Ala. 56. When court imposes punishment on plea of guilty of misdemeanor.-Drake's case, 60 Ala. 42. When jury imposes |