5441 (4676). When sheriff may order out troops at execution of criminal. No sheriff shall order out, or put on duty, at the execution of any criminal, any company, or portion of state troops, except when a riot, attempt at rescue, or other outbreak, has actually occurred, which the posse comitatus is powerless to subdue, or unless there is reasonable cause to apprehend a riot, attempt at rescue, or other outbreak, which the posse comitatus cannot subdue or control. 5442 (4677). When sheriff guilty of misdemeanor in ordering out troops. Any sheriff, calling out, or putting on duty any company, or portion of state troops, in violation of the last preceding section, or who calls out, or puts on duty any portion of the state. troops, although there be proper cause therefor, without first applying to the governor and obtaining his instructions in the premises, if there is time and opportunity beforehand to make such application and receive the governor's instructions, must, on conviction, be fined not less than five hundred, nor more than one thousand dollars.

5443 (4678). Failure of sheriff to report to governor in such case, a misdemeanor.-In every case when state troops are ordered out, or put on duty by the sheriff on the occasion of the execution of any criminal, without first obtaining the instructions of the governor, it shall be the duty of the sheriff forthwith to notify the governor of the reasons for his action, and, within ten days thereafter, to make a written report, under oath, to the governor, setting forth the facts and circumstances necessitating the ordering out of such troops; and any sheriff, who fails to make such written report to the governor, must, on conviction, be fined not less than one hundred, nor more than two hundred dollars.

CHAPTER 184.

RAPE. 5444-5450.

5444 (3736) (4304) (3661) (119). Punishment of rape. — Any person, who is guilty of the crime of rape, must, on conviction, be punished, at the discretion of the jury, by death, or by imprisonment in the penitentiary for not less than ten years.* (Form 70.)

Rape may be joined in indictment with "carnal knowledge of female child under ten years of age."-Grimes's case, 105 Ala. 186; Beason's case, 72 Ala. 191. Forms in Code sufficient.-Ib.; Leoni's case, 44 Ala. 110. Force, actual or constructive, essential.—Murphy's case, 6 Ala. 765; Lewis's case, 30 Ala. 54; McNair's case, 53 Ala. 453; McQuirk's case, 84 Ala. 435. Constructive force may be by the use of drugs, intoxicants, or where the woman is idiotic. Lewis's case, 30 Ala. 54. Amount of force or duress necessary may depend upon age. state of health, temper, disposition and other circumstances.-Smith's case, 47 Ala. 540; Waller's case, 40 Ala. 325. Offense complete when the woman is made to yield through fear, or the use of drugs, and does not consent voluntarily and consciously.-Hooper's case, 106 Ala. 41; McQuirk's case, 84 Ala. 435; Waller's case, 40 Ala. 325. If the conduct of prosecutrix toward ac*As amended by joint committee.

cused at the time be such as to create in his mind an honest and reasonable belief that she had consented or was willing to the act, it is not rape. McQuirk's case, 84 Ala. 435; Allen's case, 87 Ala. 107. Acquiescence obtained by duress, or fear of personal violence will avail the defendant nothing. McQuirk's case, 84 Ala. 435. Idiocy or mania, not mere weak-mindedness, renders woman incapable of consenting.—McQuirk's case, 84 Ala. 435. Prosecutrix may testify as to whether or not she consented.-Jones's case, 104 Ala. 30. Common strumpet, or concubine of ravisher, under protection of the law and cannot be forced.-Boddie's case, 52 Ala. 395. The woman is a competent witness; and her testimony alone, if believed, is sufficient, although she be of ill fame for chastity-Boddie's case, 52 Ala. 395; Leoni's case, 44 Ala. 110; Barnett's case, 83 Ala. 40. Charge when prosecutrix the only witness, when misleading.—Ib. Evidence of complaint made by prosecutrix within reasonable time, but not particulars, admissible.-Leoni's case, 44 Ala. 110; Lacy's case, 45 Ala, 80; Smith's case, 47 Ala. 540; Griffin's case, 76 Ala. 29; Barnett's case, 83 Ala. 40; Allen's case, 87 Ala. 107; Barnes's case, 88 Ala. 204; Hooper's case, 106 Ala. 41. But defendant may elicit particulars on cross-examination. Allen's case, 87 Ala. 107; Griffin's case, 76 Ala. 29; Barnett's case, 83 Ala. 40; Scott's case, 48 Ala. 420 And if part elicited by defendant, state may prove all.-Barnett's case, 83 Ala. 40. Dying declarations of child not admissible. Johnson's case, 50 Ala. 456. Evidence impeaching and sustaining prosecutrix as to her complaint.-Griffin's case, 76 Ala. 29; Allen's case, 87 Ala. 107. Competency of child of tender years as witness.—Grimes's case, 105 Ala. 86; McGuff's case, 88 Ala. 147; Beason's case, 72 Ala. 191. Prior intimate relations of prosecutrix and defendant as tending to show consent.-Allen's case, 87 Ala. 107; Jones's case, 104 Ala. 30. Her character for chastity as bearing on question of consent.-McQuirk's case, 84 Ala. 435. Refusal of prosecutrix to submit to physical examination by experts does not as matter of law discredit her testimony.-Barnett's case, 83 Ala. 40. Lustful remarks made by defendant touching prosecutrix prior to alleged offense, when admissible Barnes's case, 88 Ala. 204. Precaution to be observed in trial of rape cases. Leoni's case, 44 Ala. 110. Conviction may be had for assault to commit rape, or for assault and battery, or for simple assault.-Richardson's case, 54 Ala. 158; Lewis's case 30 Ala. 54.

5445 (3737) (4896) (4194) (642). Proof of rape.-To sustain an indictment for rape, proof of actual penetration is sufficient, when the act is shown to have been committed forcibly and against the consent of the person on whom the offense was committed.

Proof of actual penetration sufficient.-Waller's case, 40 Ala. 325. Conduct of prosecutrix implying consent.-McQuirk's case, 84 Ala. 435; Allen's case, 87 Ala. 107.

5446 (3738) (4305) (3662) (120). Carnal knowledge of women by administering drug, etc.—Any person, who has carnal knowledge of any female above fourteen years of age, without her consent, by administering to her any drug or other substance which produces such stupor, imbecility of mind, or weakness of body, as to prevent effectual resistance, must, on conviction, be punished, at the discretion of the jury, by death, or by imprisonment in the penitentiary for not less than ten years. *

Lewis's case, 30 Ala. 54.

5447 (3739) (4306) (3663) (121). Carnal knowledge of female under fourteen years of age.-Any person, who has carnal knowledge of any female under fourteen years of age, or abuses such female in the attempt to have carnal knowledge of her, must, on conviction, be punished, at the discretion of the jury, either by death, or by imprisonment in the penitentiary for not less than ten years.* (Form 25.)

Distinguished from rape, though a kindred offense.-Vasser's case, 55 Ala. 264. Meaning of the word "abuse" in the statute.-Dawkins's case, 58 Ala. 376. When indictment insufficient as to describing child abused.-Nugent's *As amended by joint committee.

case, 19 Ala. 540. Child under eight years a competent witness under discretion of court-Wade's case, 50 Ala. 164. See Carter's case, 63 Ala. 52. An infant adjudged incompetent to testify on a former trial may be old enough to testify on a second trial of same case.-Kelly's case, 75 Ala. 21. Evidence that child had venereal disease may be rebutted by proof of her sexual intercourse with other persons about the time alleged.-Nugent's case, 18 Ala. 521. Dying declarations of child, identifying prisoner, incompetent.-Johnson's case, 50 Ala. 456. Indictment in Code form sufficient.-Beason's case, 72 Ala. 191. May be joined with rape, and prosecution need not elect, though child proved over ten.-Ib. 191. But a conviction cannot be had for this offense under indictment for rape.-Vasser's case, 55 Ala. 264. Verdict of guilty, under disjunctive indictment, sufficient.-Johnson's case, 50 Ala. 456. An indictment which charges that defendant assaulted a girl under ten years of age, with intent to carnally know her, is insufficient under this section.-Toulet's case, 100 Ala. 74. If under ten (now changed to fourteen) cannot consent.-Ib. Neither violence or threats, or consent vel non, are material, or ingredients of the offense.—Ib. An indictment which charges that defendant "did carnally know, or abuse in attempt to carnally know, A. B., a girl under ten years of age," is sufficient, and a general verdict thereunder is sufficient.-McGuff's case, 88 Ala. 147. Defendant cannot, as matter of right, have female alleged to have been ravished by him undergo a physical examination; this is a matter in the court's discretion.-Ib.

1897, p. 944,

5448. Carnal knowledge of girl over ten and under fourteen Feb. 15, years of age. Any person, who has carnal knowledge of any girl $1. over ten and under fourteen years of age, or abuses such girl in the attempt to have carnal knowledge of her, must, on conviction, be punished by a fine of not less than fifty, nor more than five hundred dollars, and may be imprisoned in the county jail for six months. This section, however, shall not apply to boys under sixteen years of age.

5449 (8740) (4307) (3664) (122). Carnal knowledge of married women by falsely personating husband.—Any person, who falsely personates the husband of any married woman, and thereby deceives her and by means of such deception, gains access to her, and has carnal knowledge of her, must, on conviction, be punished, at the discretion of the jury, by death, or by imprisonment in the penitentiary for not less than ten years; but no conviction must be had under this section on the unsupported evidence of the woman.

5450 (3741) (4308) (3665) (123). Attempt to have carnal knowledge of married woman by such deception.-Any person, who falsely personates the husband of any married woman, and thereby gains access to her with the intent to have carnal knowledge of her, must, on conviction, be fined not less 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 twelve months.

CHAPTER 185.

REPRIEVES, COMMUTATIONS AND PARDONS.

ARTICLE 1.-STATEMENT OF PRESIDING JUDGE. 5451.

2.-STAY OF EXECUTION. 5452.

3.-Power to REMIT, COMMUTE, OR PARDON, and proceedings thereon. 5453-5462.

ARTICLE 1.

STATEMENT OF PRESIDING JUDGE.

5451 (4524) (5004) (4327) (776). Statement filed by judge in executive office; when required.-When any defendant, on conviction, is sentenced to imprisonment in the penitentiary, for the term of five years or more, it is the duty of the presiding judge to make a statement in writing, setting forth the name of the defendant, the term of the court at which he was tried, the offense of which he was convicted, the character of the evidence against him, the circumstances of aggravation or mitigation developed on the trial, and the proof in reference to his previous character; which statement must be signed by the judge, and must, within thirty days thereafter, be transmitted by the clerk to the governor, to be filed in the executive office.

ARTICLE 2.

STAY OF EXECUTION.

5452 (4525) (5003) (4326) (775). Execution of sentence postponed to make application for pardon.-When any defendant is convicted and sentenced to death, or to imprisonment in the penitentiary, the presiding judge, if he is of the opinion that such defendant should be pardoned, may postpone the execution of the sentence for such time as may appear necessary to obtain the action of the governor on an application for pardon.

ARTICLE 3.

POWER TO REMIT, COMMUTE, OR PARDON, AND PROCEEDINGS THEREON.

5453 (4526) (4994, 4995) (4317, 4318) (776, 777). Power of governor to pardon; entry and attestation of pardons.-- In all cases,

except treason, and impeachment, the governor has power, after conviction, and not otherwise, to grant reprieves, commutations and pardons, and to remit fines and forfeitures; and he must cause to be entered, in a book kept for that purpose, his reasons therefor, and must preserve on file all documents on which he acted; and it is the duty of the secretary of state to attest the reprieve, commutation, or pardon, when granted.

The governor may remit the entire fine, which destroys validity of judgment, except as to the costs.-Chisholm's case, 42 Ala. 528. Release of imprisonment alone is not release of the fine-Richardson's case, 18 Ala. 109. Legislature cannot, directly or indirectly, remit fines and forfeitures, or grant pardons, except for treason or impeachment.-Haley v. Clark, 26 Ala. 439. Delivery and acceptance necessary to complete pardon; what operates as delivery and acceptance; when acceptance presumed.-Ex parte Powell, 73 Ala. 517.

5454 (4527) (4993). Notice of application for pardon; copy and proof of notice must accompany application. In all cases in which any application is made to the governor to pardon any person convicted of crime, or to remit any fine or forfeiture, the person making such application must first give two weeks' notice, by publication to that effect in a weekly newspaper, if any weekly newspaper is published in the county in which the offender was convicted, or in which one or more of the persons reside for whose benefit the remission of such fine, or forfeiture, or pardon, is sought; and if there is no weekly newspaper published in such county, then by notice in writing, posted at the court-house door of such county, and at three other public places in the county; and in every instance where any such application is made to the governor, a copy of the notice and proof of the fact that such publication has been made, must accompany the application.

5455 (4528) (4997) (4320) (769). Commutation when punishment by death imposed.—When punishment of death is imposed, he may, with the consent of the defendant, commute such punishment by substituting for it imprisonment in the penitentiary, or sentence to hard labor for the county, for not less than two years.

5456 (4529) (4998) (4321) (770). Same; for offenses hereafter committed. When punishment of death is imposed for an offense hereafter committed, except murder, rape, robbery, burglary, or arson, he may, with the consent of the defendant, commute such punishment by substituting for it imprisonment in the penitentiary, or sentence to hard labor for the county, for not less than two years. 5457 (4530) (4999) (4322) (771). Commutation of imprisonment to hard labor.-When sentence of imprisonment in the penitentiary is imposed, he may commute such punishment by substituting for it sentence to hard labor for the county, for a term equal to the unexpired portion of the defendant's sentence.

5458 (4531) (5000) (4323) (772). Commuted sentence certified to clerk of court and recorded and enforced.-When any sentence is commuted under the provisions of the two preceding sections, the governor must cause a statement of such commutation to be certified to the clerk of the court in which the conviction was had, who