Mays v. State

• Decision Date: 30 May 1890
• Parties: MAYS v. STATE.
• Court: Alabama Supreme Court

8 So. 28

89 Ala. 37

MAYS v. STATE.

Supreme Court of Alabama

May 30, 1890

Appeal from Colbert county court; JOHN A. STEELE, Judge.

The indictment in this case was found in the circuit court, and charged that the defendant, Jack Mays, "cultivated or occupied land under a common fence with Robert Wise knowingly suffered hogs or cows or horses to go at large in such inclosure, or knowingly suffered said stock to go at large in said inclosure without a sufficient guard to prevent injury to crops." The case having been transferred to the county court for trial, the defendant there demurred to the indictment, because (1) it did not allege that there was at the time a growing crop on the land; and (2) because the offense was stated in the alternative, and one of the alternative charges was defective and insufficient. The court overruled the demurrer, and issue was joined on the plea of not guilty. On the trial, as the bill of exceptions shows Robert Wise testified on the part of the state that he and the defendant cultivated a crop on shares during the year 1888; that the defendant furnished the land, the mules, and the necessary feed for them, while he furnished the labor and the crops were to be equally divided among them. The defendant, testifying in his own behalf, stated that his contract for the cultivation of the land was made, not with said Wise, but with Judith Guinn, whose daughter said Wise afterwards married, and that he never made any contract with said Wise. The defendant requested the court to give to the jury the following written charges: (1) "That if they believed from the evidence that the contract was made between the defendant and Judith Guinn, then they must find the defendant not guilty." (2) "That if they believed from the evidence that said Wise cultivated land belonging to the defendant, under a contract between them that defendant should furnish the land and the teams, that Wise should furnish the labor, and that the crops were to be equally divided between them, then they must find the defendant not guilty." The court refused each of these charges, and the defendant duly excepted.

Jackson & Sawtell and Kirk & Almon, for appellant.

W. L. Martin, Atty. Gen., for the State.

CLOPTON J.

When an offense is created by a statute, which describes its constituents, an indictment conforming to the statutory description is sufficient; but pursuing the words of the statute will not suffice, unless every affirmative element of the offense is thereby distinctly and clearly averred. The general rule is that an indictment must contain all the essential ingredients of the offense intended to be charged stated with certainty, unless there be a statutory form directing otherwise. When the enacting clause contains an exception, whether such exception constitutes matter of defense to be shown by the accused, or must be negatived in the indictment; depends on the question whether it is so incorporated in the definition of the offense as to become a material part of the description of its ingredients. The practical test is, does the statute declare the criminality of the prohibited act as an entire class, or such acts only when committed by designated persons, or under particular circumstances, or during a specified period? "If it be clear that an act is only to become a crime when executed by persons of a particular class or under particular conditions, then this class or these conditions must be set out in the indictment, no matter in what part of the statute they may be expressed." Whart. Crim. Pl. § 241; McIntyre v. State, 55 Ala. 167. The indictment was intended to...