[May v. The State.] voidable, it could not be ratified until after the party had arrived at the age of consent.-Bishop on Marriage and Divorce, $$ 59, 194, 196. JNO. W. A. SANFORD, Attorney-General, for the State, cited the case of Beggs v. The State, at the present term. STONE, J.--Bills in equity, not verified by the complainant, are regarded as the suggestions of counsel, and are not evidence of any fact alleged in them, between the same, or other parties, in another suit.--Stetson v. Goldsmith, 30 Ala. 602, 606-607; 1 Brick. Digest, 829, $ 353. The Circuit Court erred, in allowing the bill in chancery, filed by defendant for divorce, to be read in evidence. 2. In the case of Beggs v. The State, at the present term, there is a full discussion of the question, whether the marriage of a person within the age of consent is void or voidable. We held, that such marriage was only voidable; and that "until disaffirmance, it is a marriage in fact, and the second marriage of either party is bigamy." The rulings of the Circuit Court in the matter of the charges given and refused, as shown by this record, are in accordance with the principles declared in Beggs v. The State, and are free from error. For the single error above pointed out, the judgment of the Circuit Court is reversed, and the cause remanded. Let the prisoner remain in custody, until discharged by due course of law. May v. The State. Indictment for Burglary. 1. When error or appeal lies. —An order of the Circuit or City Court, holding the accused to answer an indictment, if one should be preferred against him, is not such a judgment as will support an appeal or writ of error to this court. 2. Verdict of guilty on one count, in indictment containing several. —A verdict of guilty on one count only, where the indictment contains several counts, operates an acquittal as to the others; and if the judgment be arrested, on account of the insufficiency of that count, a new indictment can only be preferred for the offense therein charged. FROM the City Court of Mobile. Tried before the Hon. O. J. SEMMES. The defendant in this case, Edmund May, was indicted for [May v. The State.] burglary in breaking into and entering a "hen-house," the property of Manuel Forcheimer, with intent to steal. The indictment contained three counts, in which the house broken into was described as-1st, "a building within the curtilage of the dwelling-house;" 2d, "a building, structure, or inclosure, commonly known and described as a hen-house, within the curtilage of the dwelling-house;" and, 3d, "the hen-house of Manuel Forcheimer, in which goods, wares, merchandise, or other valuable things, to-wit, one dozen hens, of the value of fifty cents each, and one rooster, of the value of fifty cents, were at the time kept for use, sale, or deposit." On the trial, the jury returned a verdict of "guilty as charged in the third count. Afterwards, the defendant moved in arrest of judgment, "on the ground that the third count charged no offense;" and the court sustained the motion. The defendant then asked to be discharged, but the court refused to discharge him, and ordered him to be held in custody to answer a new indictment; to which ruling the defendant excepted, and he here assigns it as error. ALEX. MCKINSTRY, for the prisoner, contended that the verdict amounted to an acquittal as to the first and second counts, and the defendant could not be held to answer a new indictment: citing Bell & Murray v. The State, 48 Ala. 684; Coleman & Owens v. The State, 3 Ala. 14; Nancy v. The State, 6 Ala. 483; Burns v. The State, 8 Ala. 313. JNO. W. A. SANFORD, Attorney-General, for the State, cited Rev. Code, § 4146. BRICKELL, C. J.-It is only from a final judgment of conviction that an appeal or writ of error will lie to this court. R. C., chap. 12, part 4, tit. 3. The present appeal is taken from a mere order of the City Court holding the appellant to answer an indictment, if one should be preferred by the grand jury; and must be dismissed. It is proper, however, to say, the verdict of the jury was an affirmation of the defendant's innocence of the offenses charged in the first and second counts of the indictment, and of his guilt only of the offense charged in the third count. The arrest of the judgment, because of the insufficiency of the third count, did not disturb the verdict on the first and second counts, nor lessen its force as an acquittal of the defendant, final and conclusive, of the offenses therein charged. Bell & Murray v. State, 48 Ala. 684. The City Court was in error in holding the accused to answer an indictment embracing these offenses; and if such indictment should be 55 166 122 116 [Williams v. The State.] found, a plea of former acquittal would be a full answer to it, Williams v. The State. Indictment for Vagrancy. 1. Judgment imposing additional hard labor for fine and costs.-When a fine is the only punishment imposed, and, the fine and costs not being paid presently, a sentence to hard labor is imposed by the court, the term of labor for the fine is fixed by section 3760 of the Revised Code, while section 4061 regulates the term for the unpaid costs. FROM the City Court of Montgomery. Tried before the Hon. JOHN A. MINNIS. The defendant in this case, Aaron Williams, was indicted for vagrancy; pleaded not guilty; was convicted, and fined ten dollars by the verdict of the jury; and the fine and costs not being paid or secured, the court sentenced him "to perform hard labor for the county of Montgomery for ten days for the fine, and at the rate of ten cents per day for the costs until paid, making two hundred and forty-eight days hard labor for the costs, and two hundred and fifty-eight days in the aggregate." The defendant objected to the latter part of this judgment, and it is the only matter here urged as error. EDWIN F. JONES, for the defendant.-When the punishment imposed on conviction, whether by the court or the jury, is hard labor for the county, and an additional term of hard labor is imposed by the court to cover the unpaid costs, the duration of such additional term is regulated by section 4061 of the Revised Code. But, when a fine is the only punishment imposed, the term of additional hard labor which may be imposed is regulated by section 3760; and this covers both the fine and the costs. These two sections are in pari materia, and are to be construed as parts of one and the same statute. They were in fact adopted at the same time, being sections 213 and 511 of the Penal Code of 1866; and the amending act of February 16, 1867, only made the latter section apply to all costs, instead of "the costs of State witnesses and judge's fees," as it originally provided. This construction was virtually adopted in the case of Morgan v. The State, 47 Ala. 36, where the defendant paid the fine assessed [McIntyre v. The State.] against him, and was sentenced to hard labor for the unpaid costs under section 3760. JOHN W. A. SANFORD, Attorney-General, for the State. MANNING, J.-While the different sections of the Revised Code should be so construed as to make them, when it can be done, harmonize with one another, to hold that one section of it must be interpreted by reference to every other, with as much critical severity as if they were sections of a single ordinary statute, would be establishing too strict a rule on the subject. It is well known that many acts were passed after the adoption of the original Code of 1852, that were supplementary to, as well as many that were merely amendatory of its provisions. Of the former sort was the act of the 16th of February, 1867, which is incorporated as section 4061 into the Revised Code. Previously to that date, it had been provided, as set forth in section 3760, that if a person, convicted of an offense, did not pay, or secure to be paid, the fine and costs which he was adjudged to pay, he might be imprisoned; and the duration of his imprisonment was to be determined by the amount of the fine as therein prescribed. By the statute embodied in section 4061, the unpaid costs were also to be considered in determining the length of time the convict should be sentenced to imprisonment or hard labor. One of these sections does not take the place of the other, as the entire enactment on the matter to which they relate, but the later one is supplementary to the earlier; and in Caldwell v. The State, at the present term, it has been held that section 4061 was not in violation of the constitution. The judgment of the court below must be affirmed. McIntyre v. The State. Indictment for Violation of Revenue Law. 1. Sufficiency of indictment in statement of time.--In an indictment under the revenue law of 1875 (Sess. Acts 1874-75, 3-47), for being engaged in "the business of taking pictures," without the license required by that law, the indictment being found in July of that year, an averment that the defendant engaged in the business "before the finding of this indictment," without more, is not sufficient on demurrer: the averment should be, "before the finding of this indictment, and after the first day of April, 1875," that being the day on which a license was first required. 2. Sufficiency of new indictment, after quashing former.-When an indictment [McIntyre v. The State,] is quashed, and a new indictment preferred for the same offense, as authorized by the statute (Rev. Code, § 4146), the sufficiency of the new indictment must be tested as if it were found at the same time the former was found. FROM the City Court of Montgomery. Tried before the Hon. JOHN A. MINNIS. The defendant in this case was indicted, at the July term of said court, 1875, for carrying on "the business of taking pictures," without having taken out a license under the provisions of the revenue law approved March 19, 1875; but that indictment was quashed, on motion of defendant, and a new indictment was ordered by the court to be preferred for the same offense.-Rev. Code, § 4146. At the ensuing July term, 1876, the indictment in the present case was found, which charged, in its first count, that the defendant, "before the finding of this indictment, did engage in, or carry on, the business or profession of taking pictures, without having paid for and taken out a license," etc. The defendant demurred to this count, but the court overruled his demurrer, and held the count sufficient; and the judgment on the demurrer is now urged as error. WATTS & SONS for the defendant.-The indictment is fatally defective in its statement of time. The only averment is, that the defendant carried on the business, etc., "before the finding of this indictment;" which means within twelve months next preceding the 22d day of July, 1876, the day on which the indictment was found; and thus construing the indictment, it covers four months after the repeal of the law under which it was found. If, however, the indictment is to be construed as if found at the July term, 1875, it is equally defective, because it would then cover a period of time during which no license was required. It should have averred that the business was carried on, etc., "before the finding of this indictment, and after the first Monday in April, 1875." It should have averred, also, that the defendant carried on the business for profit or reward, or as a means of livelihood, since that is a necessary ingredient of the offense. JNO. W. A. SANFORD, Attorney-General, for the State. The revenue law of 1876, which repealed the law of 1875, expressly excepts from its repealing clause all "civil or criminal suits" to enforce the provisions or penalties of the former law. The indictment follows approved forms, and uses the language of the statute in charging the offense.- Harris v. The State, 50 Ala. 127; Weil v. The State, 52 Ala. 19; Batre v. The State, 18 Ala. 119, |