Marsh v. State

• Decision Date: 09 January 1912
• Citation: 57 So. 387,3 Ala.App. 80
• Parties: MARSH v. STATE.
• Court: Alabama Court of Appeals

57 So. 387

3 Ala.App. 80

MARSH v. STATE.

Court of Appeals of Alabama

January 9, 1912

Appeal from Circuit Court, Wilcox County; B. M. Miller, Judge.

Richard Marsh was convicted of larceny, and he appeals. Reversed and remanded.

Godbold & Van De Voort, for appellant.

R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

DE GRAFFENRIED, J.

In an indictment for the larceny of an animal, it is sufficient to describe the animal by such name as in the common understanding embraces it, without designating its sex. Code 1907, § 7326. It is therefore evident that under the provisions of the above statute an indictment for the larceny of a dog, a sheep, a goat or a hog would be sufficiently made out by proof of the larceny of either a male or a female of the particular species of animal named in the indictment. It does not follow, however, that in cases where, by common understanding, a certain word embraces only the male or the female of a certain species of animal, and the animal, the subject of the alleged larceny, is described in the indictment by that term which denotes only the male or the female of such species, the allegations of the indictment are met by proof of the larceny of an animal of the species but not of the gender denoted by the term used in the indictment. It will not be contended, for instance, that an indictment charging the larceny of a bull is made out by evidence of the theft of a cow.

The theft of a "cow or an animal of the cow kind" is made grand larceny by our statutes. Code, § 7324. All the provisions of a statute are to be construed according to the fair import of their terms, and if the word "cow" as used in the above statute includes or was intended to include both the male and the female of the bovine species the words "or animal of the cow kind" appearing in the statute are of no import and have no field of operation. The truth is that a cow is a female of bovine animals. In its most common acceptation it is a mature female of such animals, but the general tendency among the courts is to treat the word "cow" as including an immature female of such species, and for that reason our Supreme Court has held that a "heifer" is a cow. Parker v. State, 39 Ala. 365.

Construing all of the provisions of the above section 7324 together, we are of the opinion that when, in this state, an indictment charges the larceny of a "cow," its allegations are only met by proof of the larceny of a female animal of the cow kind. "A cow is a female animal of the bovine species; hence under an indictment for stealing a cow, a defendant cannot be convicted of stealing a bull." State v. McMinn, 34 Ark. 160.

In the present case the defendant was indicted for the larceny of three cows. The evidence, without dispute, showed the asportavit by the defendant of one cow and two steer calves or yearlings. The defendant...