Madison v. State
| Citation | 65 So. 848,11 Ala.App. 225 |
| Decision Date | 04 June 1914 |
| Docket Number | 603 |
| Parties | MADISON v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied June 20, 1914
Appeal from Circuit Court, Fayette County; Bernard Harwood, Judge.
George Madison was convicted for violating the stock laws, and he appeals. Reversed and remanded.
Ray & Cooner, of Jasper, for appellant.
R.C Brickell, Atty. Gen., and Beasley & Wright, of Fayette, for the State.
The indictment upon which defendant was convicted charged, in the language of section 7813 of the Code:
"That, before the finding of the indictment, George Madison, being the owner or person in control of live stock prohibited from running at large, did knowingly permit such stock to go upon the lands of another within a stock-law district without the consent of the owner of such lands," etc.
The indictment was demurred to on numerous grounds, all of which were overruled.
We are of opinion that two of these grounds contained merit, being those pointing out the fact that the indictment failed to allege the name of the owner of the lands trespassed upon and the kind of stock that was permitted to do the trespassing.
No form for charging the offense denounced by the statute that was violated is prescribed by law, and the sufficiency of the indictment here must therefore be tested by the general legal principles pertaining to such matters. Under such principles the indictment, in charging the offense, should, it is true as contended, follow the language of the statute, or employ words of equivalent import and meaning, but, even where it follows the statute, as it does here, and alleges that defendant "did knowingly permit such stock to go upon the lands of another within a stock-law district without the consent of the owner of such lands," it should go further and allege the name of that other. The general rule is that, where the crime charged consists in a special injury to another by any trespass committed upon his person or property, his name should be alleged, and this is uniformly the practice, even in the statutory forms for indictment in such cases. See section 7161 of the Code and the forms therein for, respectively, altering marks or brands on animals, wantonly and unlawfully killing animals, arson assaults, burglary, larceny, robbery, selling or removing property covered by a lien, trespass after warning, and like offenses. See, also, the following cases: Dorman v. State, 34 Ala. 216; Francois v. State, 20 Ala. 84; Jones v. State, 136 Ala. 118, 34 So. 236; Eskridge v. State, 25 Ala. 30; Starr v. State, 25 Ala. 38; Agee v. State, 25 Ala. 67; Hill v. State, 78 Ala. 1; Beall v. State, 53 Ala. 460; State v. Pearce, 7 Ala. 728; Martha v. State, 26 Ala. 72; Martin v. State, 28 Ala. 71.
The case of Jordan v. State, 5 Ala.App. 229, 59 So. 710, which upheld against a similar demurrer an indictment for the offense denounced by section 1 of Gen.Acts 1909, p. 42, may be distinguished from the present case, in that there is a difference, in respects here material, between the statute upon which that indictment was predicated and the statute upon which the one here is predicated. That statute makes it an offense to permit live stock to "run at large in any stock-law district." Acts 1909, p. 42. The statute here is not directed, as that one is, against stock being permitted to run at large, but against permitting stock to go upon the lands of another in a stock-law district without the consent of the owner of the lands. Code, § 7813. The gist of the offense there denounced is permitting live stock to run at large, and the gist of the offense here is permitting them to go on the lands of another without his consent, and we are clear that that other's name should be alleged in the indictment. The cases cited in the case of Jordan v. State, supra, will be seen to support our ruling here, when the forms of the indictments, as shown in those cases, respectively, are examined.
The indictment here should also have alleged the kind of live stock, whether horses, cows, hogs, sheep, or goats, or what that defendant knowingly permitted to commit the alleged trespass. Our general stock-law statute as found in section 5881 et sequitur of the Code is merely an enabling statute, enabling the courts of county commissioners in the several counties of the state, upon petition of a majority of the freeholders residing in any precinct, to call a stock-law election in such precinct, and, if...
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Lipscomb v. State
...counsel relies on the cases of Madison v. State, 11 Ala.App. 225, 65 So. 848 and Marcum v. State, 31 Ala.App. 623, 21 So.2d 121. The Madison case, supra, does hold that the kind of running at large must be stated in the indictment. However, the basis of such conclusion was that Section 5881......
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Marcum v. State, 6 Div. 32.
... ... Webster's New International Dictionary (2nd Ed.) we find ... the word 'stock' is defined under about one hundred ... different definitions. The complaint is therefore vague and ... uncertain as insisted by demurrer and is wholly insufficient ... Moreover, in our case of Madison v. State, 11 ... Ala.App. 225, 65 So. 848, this court, in a similar case to ... this, held it was necessary to allege, 'the kind of stock ... that was permitted to do the trespassing.' Furthermore, ... as will be noted, the last clause of the solicitor's ... complaint, reads: 'Damaging ... ...
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Shoults v. State
... ... charge without calling this point specially to the attention ... of the court, other than by a request for the affirmative ... The ... indictment under the section of the Code here involved must ... allege the name of the lienholder. Hill v. State, 78 ... Ala. 1; Madison v. State, 11 Ala. App. 225, 65 So ... In an ... indictment charging larceny, which is a kindred offense, a ... variance between the allegations and the proof as to ... ownership of property is fatal to a conviction. Underwood ... v. State, 72 Ala. 220. And it has also been held that, ... ...
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