Pugh v. State

• Court: Alabama Court of Appeals
• Writing for the Court: [4 Ala.App. 146] DE GRAFFENRIED, J.
• Citation: Pugh v. State, 4 Ala.App. 144, 58 So. 936 (Ala. App. 1912)
• Decision Date: 04 April 1912
• Parties: PUGH v. STATE.

58 So. 936

4 Ala.App. 144

PUGH v. STATE.

Court of Appeals of Alabama

April 4, 1912

Rehearing Denied May 4, 1912.

Appeal from Circuit Court, Marion County; C. P. Almon, Judge.

Isaac Pugh was convicted of knowingly allowing his stock to run at large, and he appeals. Affirmed.

E. B. & K. V. Fite, of Hamilton, for appellant.

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

DE GRAFFENRIED, J.

1. The indictment in this case charges that the defendant, being the owner of or having in his control live stock prohibited by law from running at large, knowingly permitted such stock to go on the lands of another within a stock law district without the consent of the owner of such lands.

For a conviction to be lawfully had upon such an indictment, the proof must show, not only that the defendant permitted the stock named in the indictment to go upon lands of another within a stock law district without the consent of the owner of such lands, but that he knowingly did so.

In the present case the state offered evidence tending to show that certain stock of the defendant, within 12 months before the finding of the indictment, was seen upon a particular occasion running at large within a stock law district upon the lands of another, without the consent of the owner of such lands. After having offered this proof, the state was permitted, against the objection of the defendant, to offer evidence that the defendant's stock was seen upon various other occasions, within said period of 12 months, running at large in said stock law district upon lands of other people without their consent.

The defendant objected to the allowance of such proof upon the following grounds: First, because the state sought thereby to prove a continuing offense; second, because the state had already elected to prove a particular violation of the stock law statute, and this additional proof was a departure from the election first made; and, third, because the state should be required to offer evidence only of the single offense which it had first elected to prove.

The trial court overruled the objections of the defendant, being of the opinion that the evidence was admissible for the purpose of aiding the jury in ascertaining whether the defendant knew that his stock was running at large in violation of the law on the occasion for which the state had elected to prosecute him.

In the case of Ingram v. State, 39 Ala. 247, 84 Am. Dec 782, the Supreme Court uses the following language: "The rule which excludes evidence of other criminal acts on the trial of a particular criminal issue is, it is true, not without limitations or exceptions. Thus, when felonies are so connected together as to form part of one entire transaction evidence of one may be given to show the character of the other. Rex v. Ellis, 6 B. & C. 145; Rex v Birdseye, C. & P. 386, 2 Russ. Cr. 774-776; Rex v. Long, 6 C. & P. 179; Wharton's Crim. L. § 649. Where it becomes necessary to prove a guilty knowledge on the part of the prisoner, evidence of other offenses committed by him, though not charged in the indictment, is admissible for that purpose. It is upon this principle that, on the trial of an indictment for uttering a forged bank note, knowing it to be forged, evidence may be given of other forged notes having been uttered by the prisoner in order to show his knowledge of the forgery. Rex v. Whiley, 2 Leach's C. C. 983, 2 Russ. Cr. 777; Tharp v. State, 15 Ala. 749."

As it was incumbent upon the state to prove to the satisfaction of the jury that the defendant knowingly permitted his stock to run at large on the occasion for which he was prosecuted, we think that the trial court was free from error in permitting the state to offer the evidence of which the defendant complains. It is true that one of the witnesses for the state testified that he at one time carried the defendant's stock to him and requested him to keep it up and thus gave the defendant personal notice of the fact that his stock was running at large in violation of the statute. This evidence of course was relevant on the issue as to whether or not the defendant knew that his stock was running at large, but it in no way destroyed the relevancy of the other evidence which the court permitted to go to the jury tending to establish the same fact.

2. The bill of exceptions recites that the court, in its oral charge to the jury, made the following statement: "The defendant testified in his own behalf, and this he had a right to do. You cannot capriciously disregard his...