53 N. H. 610. The treasurer of a state university is a public offilcer within the meaning of an embezzlement act: Spalding v. People, 172 Ill. 40, 49 N. E. 993. So, also, is the secretary of the board of harbor commissioners: People v. Gray, 66 Cal. 271, 5 Pac, 240; and a deputy sheriff authorized to collect taxes: State v. Brooks, 42 Tex. 62. Public officers have been held to include municipal officers, in State v. Isensee, 12 Wash. 254, 40 Pac. 985; township officers, in People v. Bringard, 39 Mich. 22, 33 Am. Rep. 344; State V. Cleveland, 80 Mo. 108; State v. Morton, 21 Ohio St. 669; and county officers, in State v. Smith, 13 Kan. 274; Commonwealth v. Bodley, 17 Ky. Law Rep. 561, 31 S. W. 463. But a county auditor who is not charged with the custody and possession of public money is not within the terms of the Ohio statute: State v. Newton, 26 Ohio St. 265. Nor is the clerk of the county commissioners a public officer within the Maryland statute: State v. Denton, 74 Md. 517, 22 Atl. 305. Nor is the clerk of a superior court, who embezzles money paid him by an administrator for one of the distributees of an estate, such money not being held in trust for any city or county: State v. Connelly, 104 N. C. 794, 10 S. E. 469.

SMITH V. STATE.

[129 Ala. 89, 29 South. 699.]

INFAMOUS CRIMES.-PERSONS CONVICTED OF TREA SON, FELONY AND THE CRIMEN FALSI were, at common law, rendered infamous, and were disqualified as witnesses in civil and criminal cases. (p. 48.)

INFAMOUS CRIMES.-THE TEST as to whether a crime is infamous is whether it shows such depravity in the perpetration, or such a disposition to pervert public justice in the courts, as creates a violent presumption against his truthfulness under oath. (p. 48.)

INFAMOUS CRIMES.-IT IS NOT THE SEVERITY OF PUNISHMENT, but the nature of the offense, which creates legal infamy and disqualifies a witness. (p. 48.)

INFAMOUS CRIMES.-THE CRIMES OF ASSAULT AND OF CARRYING CONCEALED WEAPONS are not infamous. (p. 48.)

WITNESSES-IMPEACHING.-EVIDENCE OF THE CONVICTION FOR AN ASSAULT or of carrying concealed weapons is not admissible for the purpose of discrediting a witness. (p. 48.)

Indictment for an assault with intent to rape. The defendant testified in his own favor, after which evidence that he had been convicted of assault and battery and of carrying concealed weapons was introduced by the state to affect his credibility.

P. E. Culli, for the appellant.

Charles G. Brown, attorney general, for the state.

91 TYSON, J. The rule of the common law was that persons convicted of treason, felony and the crimen falsi were rendered infamous, and were disqualified as witnesses in civil and criminal cases. In determining whether a crime was infamous, the test seems to be "whether the crime shows such depravity in the perpetration or such a disposition to pervert public justice in the courts, as creates a violent presumption against his truthfulness under oath." It was not the severity of punishment, but the nature of the offense, which created legal infamy and disqualification of a witness: 92 Sylvester v. State, 71 Ala. 17; Taylor v. State, 62 Ala. 164. The common-law rule which prevailed in this state was changed by the enactment of the statute now embodied in section 1795 of the code, so as to relieve a witness of disqualification by reason of having been convicted of an infamous crime, except where the conviction is for perjury or subornation of perjury; providing, however, that evidence of such conviction goes to his credibility. It is too clear for argument that the words "infamous crime" employed in this section have the same meaning as they had at common law.

So, too, it is also clear that the crimes of assault and carrying concealed weapons are not infamous. Not being infamous, evidence of the conviction of the defendant for those crimes for the purpose of discrediting his testimony was inadmissible. Not being admissible for this purpose, it was not admissible for any other.

Under the evidence there was no error in refusing the charge requested by defendant: Dudley v. State, 121 Ala. 4, 25 South. 742; Brown v. State, 121 Ala. 9, 25 South. 744; Talbert v. State, 121 Ala. 33, 25 South. 690.

Reversed and remanded.

An Infamous Crime is generally defined as one punishable with Imprisonment in a state prison: Gudger v. Penland, 108 N. C. 593, 23 Am. St. Rep. 73, 13 S. E. 168. The conviction of an infamous crime disqualified one from being a witness at the common law: See the monographic note to Lodge v. State, 82 Am. St. Rep. 35.

The Impeachment of Witnesses by proof of their participation in crime is discussed in the monographic note to Lodge v. State, 82 Am. St. Rep. 84-39.

EX PARTE MILLER.

[129 Ala. 130, 30 South. 611.]

INJUNCTION-BOND.-In Alabama there can be no injunc tion, and consequently no contempt for its violation, until a bond bas been given. (p. 49.)

INJUNCTION-VIOLATION OF.-Where an injunction is not to take effect until a bond is executed, acts done between the time of granting the injunction and the execution of the bond, which would be violative of the writ if fully operative, do not constitute a breach of the injunction. (pp. 49, 50.)

THE VIOLATION OF THE SPIRIT OF AN INJUNCTION, even though its strict letter may not have been disregarded, is a breach of the mandate of the court. (p. 50.)

INJUNCTION.-COURTS WILL NOT PERMIT DEFENDANTS TO EVADE RESPONSIBILITY for violating an injunction by doing through subterfuge that which, while not in terms a violation, yet produces the same effect by accomplishing substantially that which they were enjoined from doing. (p. 50.)

AN INJUNCTION AGAINST PROCEEDING FURTHER IN A SUIT, which does not become operative until after a judgment in such suit has been rendered, is violated by the issuance of execution or a writ of possession thereon. (p. 52.)

CONTEMPT PROCEEDINGS MAY BE ENTERTAINED, though the equities of the cause have not been determined. (p. 53.)

CONTEMPT-NOTICE.-ONE WHO APPEARS AND DE FENDS against contempt proceedings need not be served with notice to show cause therein. (p. 53.)

Original petition in the supreme court for a writ of mandamus or prohibition to vacate a decree rendered in contempt proccedings and to prohibit the enforcement of such decree.

L. C. Dickey, for the petitioner.

J. W. Bush, contra.

133 HARALSON, J. 1. In this state it is provided that injunctions can be issued alone, upon the execution of bonds, such as are prescribed by the statute. Section 786 of the code provides that no injunction must issue to stay proceedings after judgment in a personal action until the party applying for it gives bond and security, as prescribed. Section 787 directs that no injunction must issue to stay proceedings at law for the recovery of land, unless the party give bond and security as provided; and section 788 requires that in other cases than those specified above the party must give bond with surety.

Am. St. Rep., Vol. LXXXVII—4

in such sum as the officer granting the injunction directs, payable and conditioned as prescribed. These sections cover any and every case that may arise for an injunction. To issue one without the bond prescribed would be irregular: Thorington V. Gould, 59 Ala. 461. Whatever might be the rule, in the absence of statutory regulations on the subject, as to the time the writ becomes operative, we apprehend, under our statute, it can never be operative until the injunction bond has been executed. Such an order is conditional in its nature, and there can be no injunction, and consequently no contempt for its violation, until the bond has been given: 2 High on Injunctions, sec. 1429; 1 Beach on Injunctions, sec. 269; Winslow v. Nayson, 113 Mass. 411.

It is furthermore held that where an injunction has been granted, but not to take effect until a bond is executed, acts done between the time of granting the injunction 134 and the execution of the bond, which would be violative of the writ if fully operative, do not constitute a breach of the injunction: 1 Beach on Injunctions, sec. 253.

2. In determining whether there has been an actual breach of the writ, it is necessary to observe the objects for which the relief was sought and granted and the circumstances attending the case; and, as observed by Mr. High, "the violation of the spirit of an injunction, even though its strict letter may not have been disregarded, is a breach of the mandate of the court": High on Injunctions, sec. 1446; 1 Beach on Injunctions, sec. 251; Kerr on Injunctions, 641. Again: "Where part of the injury complained of has already been done by defendant, before the injunction issues, but after the writ is allowed, he does acts in furtherance of such injury, he cannot protect himself from the consequences of a violation, by the fact that the injunction did not in terms prohibit the act which he committed, and he will accordingly be held guilty of contempt": High on Injunctions, sec. 1447. "Nor will the court permit defendants to evade responsibility for violating an injunction by doing, through subterfuge, that which, while not in terms a violation, yet produces the same effect by accomplishing substantially that which they were enjoined from doing": High on Injunctions, sec. 1433; Gibbs v. Morgan, 39 N. J. Eq. 79.

In this proceeding it appears that on the 14th of March, 1898, in a bill pending in the chancery court of Shelby county, an order was granted by a circuit judge for a writ of injunc

tion, upon the execution by complainants of a bond in the sum of three hundred dollars, conditioned and payable as provided by law, and on the 28th of the same month the bond was duly executed. The prayer of the bill for the injunction was, that defendants (Frank and J. B. Miller) be commanded "to take no further steps in the suits as shown by the paragraphs of the bill," etc., one of which suits was for a personal judgment against complainants on mortgage notes, and the other, an action against them, in the nature of an action of ejectment, for the recovery of the possession of the mortgaged lands-the latter suit being the one out of which this proceeding grew, and both of them pending in the circuit court of Shelby county.

135 The writ of injunction issued on the 28th of March,. 1893, on an injunction bond taken and approved on the same day, enjoining defendants (to state its language) "from the further prosecution of the above-named suit for judgment on notes for six hundred and fifty dollars, or from the further prosecution of said suit in ejectment filed by you in said circuit court on the sixth day of January, 1898, against the said William Kirkpatrick and Sarah Kirkpatrick, until further orders of this court," and the same was duly executed on said Frank Miller on the 30th of March, 1898.

On the 24th of March, the respondents-Millers-took a judgment in said circuit court for the lands described in the bill, which was four days before the writ of injunction was issued and placed in the hands of the sheriff and served on the defendants. On the 18th of April, thereafter, a motion was made by defendants to discharge the injunction, which motion, as averred, is still pending in said chancery court; and on the 29th of April, as is further averred, the defendants "caused the issuance of an execution against complainants," and on the 2d of June, 1898, they were, "under and by virtue of said execution, dispossessed of the lands described in the bill of complaint," etc.

3. The evidence shows clearly enough that when complainants were dispossessed of said lands, the said Millers knew and had notice of the issuance of said writ of injunction. The petition of complainants for a rule to show cause why the defendant. Frank Miller should not be attached, was made and filed in said chancery court on the 16th of March, 1899, and on the same day he filed in said court a demurrer to and motion to trike said petition. At the September term, 1899, of said