Smith v. State

• Decision Date: 13 May 1941
• Docket Number: 4 Div. 651.
• Citation: 30 Ala.App. 158,2 So.2d 341
• Parties: SMITH v. STATE.
• Court: Alabama Court of Appeals

2 So.2d 341

30 Ala.App. 158

SMITH v. STATE.

4 Div. 651.

Alabama Court of Appeals

May 13, 1941

A B. Ferrell, of Seale, and A. L. Patterson, of Phenix City for appellant.

Thos S. Lawson, Atty. Gen., and Wm. N. McQueen, Asst. Atty. Gen for the State.

BRICKEN Presiding Judge.

This appellant, defendant below, was tried and convicted upon an indictment which charged that "he feloniously took and carried away one cow, an animal of the cow kind, of the value of $12.00, the personal property of Mandy Robinson."

All of the testimony upon the trial described the animal alleged to have been stolen as a "bull yearling."

The defendant requested, in writing, the general affirmative charge, which the court refused.

We are of the opinion the court erred to a reversal in refusing said charge. Under all the evidence the defendant was clearly entitled to a directed verdict. Marsh v. State, 3 Ala.App. 80, 57 So. 387. In said case, this court said:

"The theft of a 'cow or an animal of the cow kind' is made grand larceny by our statutes. Code, § 7324 [Code 1940, Tit. 14, § 331]. 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."'

In our case of Carroll v. State, 28 Ala.App. 516, 189 So. 219, 220, this court restated the well settled proposition to the effect that "where particular kind of property is described in an indictment, it must be proved as laid."

In other words, an indictment for larceny should describe the property with such certainty as will enable the jury to decide whether what is proven to be stolen is the very same with that upon which the indictment is founded, and show judicially to the court that it was the subject matter of the offense charged, and enable the defendant to plead his acquittal or conviction to a subsequent indictment relating to the same property.

The indictment in this case, as stated, charged the larceny of a cow, an animal of the cow kind, the latter phrase being merely descriptive of the one preceding-not in the alternative. It was therefore necessary for the State to prove, under the required measure of proof, that the defendant feloniously took and carried away a female animal...