Jacobs v. State

• Citation: 85 So. 837,17 Ala.App. 396
• Decision Date: 06 April 1920
• Docket Number: 8 Div. 695
• Parties: JACOBS v. STATE.
• Court: Alabama Court of Appeals

85 So. 837

17 Ala.App. 396

JACOBS v. STATE.

8 Div. 695

Court of Appeals of Alabama

April 6, 1920

Appeal from Circuit Court, Madison County; Robert C. Brickell Judge.

Frank Jacobs was convicted of knowingly permitting cattle to run at large and go upon the lands of another without his consent in violation of the stock law regulations, and he appeals. Reversed and remanded.

Lanier & Pride, of Huntsville, for appellant.

J.Q Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN P.J.

The defendant was convicted for the offense of knowingly permitting his cattle to run at large or go upon the lands of J.H. Durham without his consent, within a stock law district etc. The prosecution originated in the inferior criminal court of Madison county; the affidavit of one J.H. Durham being sworn to and subscribed before Carter H. Rice, clerk of said court. The warrant of arrest was duly issued and made returnable before the judge of the inferior criminal court of Madison county, Ala., and, so far as this court may know from the record before us, the cause is still pending in the inferior criminal court.

This appeal purports to be from a judgment of conviction in the circuit court of Madison county, but nowhere in the record is it shown from what source the circuit court acquired jurisdiction of the case, nor is it shown upon what process the cause was tried in the circuit court. If the case was finally tried in the inferior criminal court, and judgment of conviction rendered against the defendant, and from such judgment an appeal was taken, these facts necessarily must affirmatively appear from the record. Haynes v. State, 5 Ala.App. 167, 59 So. 325; Perry v. State, 81 So. 858. If an appeal is taken to the circuit court, the cause must there be tried upon a brief statement of complaint, signed by the solicitor, as provided by Code 1907, § 6732, unless such complaint is shown to have been waived by and with the consent of defendant. Moss v. State, 42 Ala. 546; Haynes v. State, supra; Perry v. State, supra; Howard v. State, 81 So. 345. These necessary requirements are not shown by the record; hence a reversal of the judgment of conviction in the circuit court must follow, under the authority of the cases above cited.

As a result of the above holding, which is conclusive of this appeal, it would not appear to be necessary that other questions presented should be considered at this time; but, for the guidance of the court and counsel upon another trial of this case, we are of the opinion that the court committed no error in its rulings upon the admission in evidence of the records of the commissioners' court, which showed the duly established stock law in Triana precinct and in Whitesburg precinct of Madison county, Ala. From the evidence offered in this connection it appears that a stock law for the two precincts named was duly established. Gus Sims v. State, 85 So. 836 (present term); Savage v. Wallace, 165 Ala. 572, 51 So. 605; Phillips v. Bynum, 145 Ala. 549, 39 So. 911; Commissioners v. Johnson, 145 Ala. 553, 39 So. 910.

Of course, in this case, as in all criminal cases, the state must offer evidence to prove each and every material allegation charged in the complaint, which here consisted of (1) the existence of a duly and legally established stock law for the district in question; (2) that the cattle of the defendant were running at large in that portion of the district complained of--in this case, upon the lands of J.H. Durham, (3) without the consent of said J.H. Durham; (4) that defendant knowingly permitted such cattle to so run at large, etc.; and these facts must necessarily be proven to the satisfaction of the jury trying the case beyond a reasonable doubt.

The usual presumption of innocence attends the defendant in a case of this character, as in all other criminal cases,...