The Birmingham age-herald., 1909-09-15


 verb suffer because the particle or in- tervenes"
 Is the statement that the word or is always used as an alternative absolutely correct? Let us see what some of the courts have said on this question.
 Or when used not to connect two distinct facts of different natures, but to characterize and include two or more phases of the same fact attended with the Same result, as assigning, disposing, or of secreting property as a ground for attachment, states but a single ground, and is not in the alternative. "-Sturz vs. Fischer 36 N. Y. Suppl, S93, SEA-
 Tn an action for death by wrongful act. where the declaration stated that the plaintiffs intestate was struck at near or upon the crossing at a certain street, demurrer on the ground that it was alternative pleading was overruled'-Ty fer vs. Kelley, S9 Va, 2S2.
 Or as used in an indictment for sell ing liquor without having obtained license therefor as tavern keeper "or' without being in any way authorized to sell the same as aforesaid should be construed to mean and People vs. Gilkinson, N Y, Parker Cr., R., 26.
 AS used in Act 1886, page 2627, prohib- iting any publication out of the court re- specting the conduct of judges, officers of the court, jurors, witnesses, and pro- viding that the party aggrieved may pro- ceed against the author, printer and pub fisher by indictment, or may bring an action at law for damages, or Is not to be construed as used disjunctively. y."-Fos- ter vs. Commonwealth, Pa, Watts & S., IT. 79.
 Tt is within common knowledge that the words or and and are frequently used interchangeably, not only by those unslxilled in the use of language, but by kho 1aex of difference in the two conjunctions, for oftentimes the idea of the user Is as cor rectly expressed by the use of the one as the other. So it is held that under an act concerning distributions and descents. and providing that the wife shall not be entitled to any interest under the pro- visions of the section, in any land to which the husband has made a convey ance, when the wife at the time of the conveyance, is not or never has been a resident of this state, the word or should be read and with the effect that a wife who had ever been resident of this state is entitled to the benefits of the act.'-kennely vs. Haskell, 61 Kan, SIP; 73 Pac. Rep. 913.
 'Where a statute-uses the words will fully or malicously,' to qualify the act therein declared an offense, the indict- ment may charge the act as wlfully and maliciousy done.'-State vs. Philbin, 38 La, Ann 964 966.
 AS used in the Revised Statutes of the United States, page 1893 (U. s. Comp. St, 1901, p. 265S), imposing a penalty for know ingly mailing any obscene lewd or las civious book or is construed as mean ing and so that publication, to be within the prohibition, must be not only obscene. but also lewd and lascivious.- United States vs Moore, 104 Fed. Rep. 7s
 But it may be argued by the learned gen. drafted Fuller bill that I have failed thus far to give any valid or sufficient reasons for dissenting from the editorial before re- ferred to, inasmuch as the citations I have given do not contain the qualifying word 'wilfully, overlooking or ignoring the case of United States vs. Moore. 104 Fed Rep. IS, where the qualifying word used was knowingly" which is certain ly an element of wilfullness, If not sym onum of 'wifully" or wilfulness-and I would be willing to rest my dissent upon that single case, which was decided upon the holding of the United States supreme court in the case of Swearingen vs. U. S., 161 U. S., AS, 45O. But it is unneces- sary so to do.
 Now as to the second proposition in the editorial Does does not the adverb "wilfully' modify the very "srlfer," not withstanding the fact that 'br' inter venes? I am impeled to answer that question Dy saying that IL uoeS, dnu tidl a proper and legal construction, based upon numerous Alabama decisions, would be. That if any person shall wilfully let or wilfuly suffer- etc
 In the case of the State vs. Abram, slave, 10 Ala. BPS. the prisoner was in- dicted for biting off the ear of an over seer-a white man.
 The statute under which the indictment was framed declared that every slave <l,a xxrilf ftt1l a it,n r1lt eye, or cut, or bite off the lip, ear, or nose of any white person, shall suffer death.
 The head-note of the case is as follows:
 An intentional and unnecessary muti- lation, by a slave, of any of the members of a white person. enumerated In the statute as constituting mayhem, will be 'wilfully' committed, within the meaning of the act.
 In the opinion of the supreme court, re- versing the lower court on account of error in the giving of a certain charge, Ormond, J., speaking for the court, said, in part:
 Although the statute speaks of cut ting off the lip, ear or nose, it is not to be understood that the offense may not be committed, without the entire mutilation of one of these members. The object of the statute was to provide against such a wilful mutlation of these members, as would be obvious to casual ob- server. l.
 If such an act is intentionally, and unnecessarily committed by a slave, on the person of a white man, there can be no doubt it Is wilfully committed, within the meaning of the statute.
 'It Is further urged by the counsel for the prisoner, that an act to constitute mayhem under the statute, must be done malcously, which it is insisted is the proper meaning of the term wilfully, eni- ployed in the statute.
 Tt Is difficult to suppose that one could bite off the ear of another without intend- ing, and consequently without willing 1t; but as this word 'wilfully'' is found in the act prefixed to the offense. and as its criterion by which it's character is to be ascertaned, it becomes necessary to ascretain it's import, considered in the connection in which it is found
 The case of Brown vs. the State AS Ala, 175, 1S3, is, think, directly in line with my contention. In this case Brown and others were indicted under the pro- visions of section 3612 of the code, pro- viding that 'any person who wilfully in- terrupts or disturbs any assembage of people met for religious worship etc., 's guilty of a misdemeanor.
 The trial judge refused to give wri.- ten charge for the defendants.
 "The jury must believe from the evil dence, beyond all reasonable doubt, that there was a wilful interruption and dis turbance of a congregation met together for religious worship" etc.
 r>txa ,-af,,a ta tyix nl1 ar0n urnc