Flowers v. State

• Decision Date: 06 July 1910
• Citation: 168 Ala. 147,53 So. 276
• Parties: FLOWERS v. STATE.
• Court: Alabama Supreme Court

53 So. 276

168 Ala. 147

FLOWERS v. STATE.

Supreme Court of Alabama

July 6, 1910

Appeal from Coffee County Court; J. N. Ham, Judge.

Emma Flowers was convicted of allowing a cow to run at large, and she appeals. Reversed and remanded.

In its oral charge the court read to the jury section 7813, Code 1907, and further charged the jury that if the cows or yearlings in question belonged to defendant or were under her control, and they believed the same beyond a reasonable doubt, and that she knowingly permitted said cattle to run at large off of defendant's premises, she was guilty. The following charge was refused to the defendant: "(1) Unless the jury believe beyond a reasonable doubt that defendant knowingly, voluntarily, or willfully permitted her cows to run at large off her premises, they will find her not guilty." The following charge was given for the state "A. If the jury believe beyond a reasonable doubt that the defendant knowingly permitted live stock to run at large off her premsies in Coffee county within six months before the affidavit, whether the same were cows, heifers, or yearlings, and of whatever color, you will find the defendant guilty." C. R. Talbert, who arrested Emma Flowers testified that he made no threats, offered no reward or inducement to have her make a statement in regard to the case, and was then permitted to testify that the defendant told him that at the time she made bond that she reckoned she had just as well plead guilty to stock running at large.

J. A Carnley, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

ANDERSON J.

Section 7813 of the Code of 1907 prohibits the owner or person in control of stock from knowingly permitting stock to go upon the lands of another in any stock district, and without the consent of the owner of the land. The local act for Coffee county (section 1, p. 1242, Acts 1900-01) makes it unlawful only for the owner of the stock to knowingly, voluntarily, or willfully permit certain animals to go at large in said county. The general statute is directed both at the owner or the person in control of the stock, and makes it an offense for them to knowingly permit stock to go upon the lands of another without his consent, and which is situated in a stock district, and whether the stock is permitted to run at large or not. The local law is intended only against the owner who permits his stock to run at large, and not for merely permitting the stock to go upon the lands of another without his consent. There is therefore a field of operation in Coffee county for both laws and the validity of the local law is necessary to put Coffee county in a stock law district and which is essential to a prosecution under either statute. The affidavit in question evidently attempts to charge an offense under the local act, and not under section 7813 of the Code of 1907, and was not subject to the demurrer interposed thereto.

It is insisted that this act is repugnant to section 45 of the Constitution of 1901, and falls within the influence of the case of Barnhill v. Teague, 96 Ala. 207, 11 So. 444. We do not think that the act in question possesses the vice pointed out as being in the act condemned in this...