Davis v. State

• Decision Date: 21 July 1904
• Citation: 141 Ala. 84,37 So. 454
• Parties: DAVIS v. STATE.
• Court: Alabama Supreme Court

37 So. 454

141 Ala. 84

DAVIS v. STATE.

Supreme Court of Alabama

July 21, 1904

Appeal from City Court of Gadsden; John H. Disque, Judge.

Ben Davis was convicted of letting a hog run at large in a stock-law district in Etowah county, and he appeals. Affirmed.

The indictment as preferred contained two counts. The defendant's demurrer to the first count was sustained. The second count of the indictment was in words and figures as follows: "The grand jury of said county further charge that before the finding of this indictment. Ben Davis did willfully permit a hog owned by him to go upon the crop of Thomas Turner within the following described portion of Gadsden, beat No. 1, in said county, to wit: Commencing at the southwest corner section twenty-nine, township eleven range six; thence to the northwest corner of southwest fourth of southwest fourth, section twenty, township eleven, range six east; thence east to the northeast corner of the southeast fourth of the southeast fourth, said section twenty; thence south to the northeast corner section twenty-nine, township eleven, range six; thence east along northern boundary line of section twenty-eight, township eleven, range six, to Black creek; thence down Black creek to the northern boundary line of section thirty-two, township eleven, range six; thence west with said boundary line to the beginning point--in which it is and was unlawful for hogs to run at large, against the peace and dignity of the state of Alabama."

The defendant demurred to the second count of the indictment upon the following grounds: "(1) Said indictment is based upon an unconstitutional law. (2) The said indictment failed to show whether the offense charged was committed before or after the 29th day of September, 1903. (3) The said indictment charges that defendant permitted a hog to go upon the crop of Tom Turner, whereas the act approved September 29, 1903, only makes it indictable to permit stock to go upon the lands of another and the indictment fails to aver or show that the offense charged was committed before the 29th of September, 1903. (4) The said indictment fails to charge that a majority of the votes cast, as certified by the managers were in favor of prohibiting stock from running at large. (5) The said indictment fails to charge that the probate judge has entered on the minute books of the court of county commissioners as provided by law. (6) The statement in the indictment that it is and was unlawful to permit stock to run at large in the portion of beat referred to is not supported by any averment of facts showing that it is unlawful. (7) The stock law relied on provides for misdemeanors of the nature charged to be triable only by a justice of the peace, and not on indictment. (8) Said indictment counts upon a local law of which this court will not take judicial notice, and fails to plead said local law." This demurrer was overruled.

On the trial of the case, the state introduced in evidence, against the objection and exception of the defendant, the minute entry in the minute books of the court of county commissioners of Etowah county, showing the establishment of the stock-law district in the portion of the county described in the indictment.

Goodhue & Blackwood, for appellant.

Massey Wilson, Atty. Gen., for the State.

HARALSON J.

The indictment was found under the act of December 7, 1900 (Acts 1900-01, p. 170), amending an act, "To prevent stock from running at large in several beats and parts of beats of Etowah county approved February 8th, 1898--Acts 1898-99, p. 683."

The indictment was demurred to on many grounds, the first of which was that it was based on an unconstitutional law. This contention proceeds on the alleged ground, as stated in the brief of counsel, that the act "does not define either the boundaries within which the stock law is to be operated or the persons who are to determine by their votes whether or not the law shall go into effect, but attempts to delegate to any ten or more freeholders who may see fit to write in a petition, the power to determine the boundaries of the proposed stock district, and the voters who shall participate in the election."

The first section of the act provides, "That whenever ten freeholders or householders in any beat or part of beat in Etowah county shall petition the probate judge of said county asking that an election be held in said beat or part of said beat to decide whether in said beat or part of said beat stock shall be prohibited from running at large, the probate judge shall order an election in such beat or part of beat described in said petition and at a place...