1. The indictment in all of its counts follows the Code form, and is not subject to demurrer. — Marsh v. State, 3 Ala. App. 83, 57 South. 387; Hankinson v. State, 2 Ala. App. 110, 57 South. 61.

(1) 2. The question of whether the defendant was a notary public or a notary public and ex officio justice of the peace was one of proof, and this could not be raised by demurrer to the indictment.

(2) 3. The contention of the defendant is that, under the facts, if guilty at all, it is of a violation of section 7488 of the Code, fixing a penalty for a failure to keep a docket and make settlement as required. We cannot agree to this. A justice or notary may be guilty under section 7488 without being involved morally; neglect, or even ignorance, might render him subject to the penalty; but this section was never intended to be a bar to a prosecution under section 6838, or to render justices of the peace and notaries immune from a prosecution for a graver offense denounced in that section. In the one case the penalty is for mere neglect, oversight, ignorance, etc., while in the other it is a penalty for corruption and dishonesty. The distinction is too apparent to .admit of argument or to require citation of authority.

(3, 4) 4. But before a conviction can be had under section 6838, all of the material elements of the offense must be alleged and proven — i. e., that the defendant was a notary public and an ex officio justice of the peace; that he had money paid him in his official capacity; that he knowingly converted that money to his own use; that the conversion was wrongful. In this case, the *605 fact that the defendant was a notary public and ex officio justice of the peace of Jefferson county was a fact of'which the courts take judicial knowledge; that he had received money from various sources in payment of fines imposed in his court, which he had not paid over or accounted for, is abundantly shown by the evidence. But did he wrongfully convert this money to his own use? In other words, was there enough money due him for fees in other cases where the state had failed to convict to consume the amount collected if it had been so applied ?

(5) The act authorizing justices of the peace and ex officio justices of the peace to apply fines to the payment of fees in which the state failed to convict was approved March 19, 1875.— Acts 1874-75, p. 178. This act was carried into the Code of 1876, and comes down to us as section 7488 of Code 1907; and while the language of the present section does not specifically say that justices of the peace and notaries public with ex officio powers shall have the right to apply fines collected by them to the payment of their insolvent costs, such has been the practice since 1875, and the continuation of the section in the same language through all these years and the action of the state officials in approving this construction necessarily implies approval of this interpretation. This view was held in the case of State, ex rel. Turner v. Henderson, Governor, 74 South. 344, with regard to an appropriation claimed to have been made in violation of the Constitution; and if that is correct, it will apply with equal force here. We therefore hold that under authority of section 7488 of the Code, a justice of the peace or notary public and ex officio justice of the peace has a right to apply fines collected in his court to the payment of his insolvent fees and costs.

(6) This being the law, the defendant had a right to show by competent evidence that he was due fees and costs in cases where the state had failed to convict in his court in an amount equal to or greater than the amount of fines shown to have been collected and appropriated and that he so applied them. This the defendant offered to do; the court refused to allow the testimony, and the defendant excepted. In this the court committed error, and for this error the judgment is reversed, and the cause is remanded.

(7) That the defendant did not report them to the grand jury, and did not make settlement with the county treasurer as required by law, are strong circumstances to go to the jury upon *606 the question of his guilt; but he nevertheless had the right to have the jury pass upon .it.

It is not necessary for the purposes of another trial to pass upon.the other assignments of error.

Reversed and remanded.