Bellinger v. State

• Citation: 92 Ala. 86,9 So. 399
• Parties: BELLINGER v. STATE.
• Decision Date: 28 May 1891
• Court: Supreme Court of Alabama

9 So. 399

92 Ala. 86

BELLINGER v. STATE.

Supreme Court of Alabama

May 28, 1891

Appeal from city court of Montgomery; THOMAS M. ARRINGTON, Judge.

Indictment for unlawfully taking the mule of another, and using it temporarily, without the owner's consent. Code Ala. 1886 § 3861, provides that "any person who takes for temporary use, or uses temporarily, any animal or vehicle without the consent of the owner, or person having control thereof, and without a bona fide claim of title thereto, must, on conviction, be fined; *** but no prosecution must be commenced or indictment found, under this section, except upon complaint of the owner, or person having control of such animal or vehicle." Section 2756 requires charges moved for by either party to be in writing.

Ray Rushton, for appellant.

W L. Martin, Atty. Gen., for the State.

STONE C.J.

The statute (Code 1886, § 3861) is of relatively recent enactment, and is somewhat a new departure in criminal jurisprudence. Still, we cannot say that it was not called for by considerations of public policy. Its object was to prevent or redress a grievance, the nature of which is clearly shown by the facts of the case before us. After fixing venue and time, the witness Weatherly testified that "he rode his mule to a church in said county, and hitched it, and went into a house in which Ritta Harris, the sister of defendant, lived, and stayed a few minutes, and then went out again. After a few hours he went and looked for his mule, and found it gone. That he and Hison Weatherly went in search of the mule next day, and found it several miles away. That he owned the mule, and that he was the prosecutor in the case." The mule was found in possession of the defendant. The court, at the request of the prosecution, charged the jury that, "if they believed the evidence, they must find the defendant guilty." The defendant then asked the following charge: "If the jury find that there was no wrongful intent coupled with a wrongful action, they should not convict the accused." This was refused, and an exception reserved.

It is sufficient for the wants of this question that the record fails to show that, when asked, this charge was in writing. That, of itself, justified its refusal. Code 1886, § 2756 and note; 3 Brick. Dig. p. 111, § 70. We hold, however, the charge was rightly refused on the merits. To unlawfully take for temporary use, or unlawfully to use temporarily, "any animal or vehicle, without the consent of the owner, or person having the control thereof, and without a bona fide claim of title thereto," is what the statute in terms interdicts and punishes. The statute prescribes no other element of the misdemeanor, and we have no authority for incorporating in it a provision which the legislature omitted. All persons are presumed to intend the natural consequence of an act intentionally done; and there is, under the testimony in this case, no ground left for conjecture, even, that the defendant did not intend to violate the law in what he did. It may be true, under the presumed license which friendship sanctions or tolerates, that one person may sometimes take or use temporarily the animal or vehicle of another without intending to do an unlawful act. In such instances, if they occur, the circumstances will be found to be such as to raise the presumption that, if permission had been asked, it would have been granted. The safety in such case, however, lies in the fact that "no prosecution can be commenced or indictment found [under the statute we are considering] except upon the complaint...