State v. Smith

• Decision Date: 06 July 1903
• Citation: 75 S.W. 1081,71 Ark. 478
• Parties: STATE v. SMITH
• Court: Arkansas Supreme Court

75 S.W. 1081

71 Ark. 478

STATE v. SMITH

Supreme Court of Arkansas

July 6, 1903

Appeal from Baxter Circuit Court CHARLES A. PHILLIPS, Special Judge.

Reversed.

STATEMENT BY THE COURT.

At the September term, 1902, of the Baxter circuit court, the grand jury returned against appellee and Polk Hall the following indictment, omitting the caption:

"The grand jury of Baxter county, in the name and by the authority of the state of Arkansas, accuse Will Smith and Polk Hall of the crime of violating the stock laws, committed as follows to-wit: The said Will Smith and Polk Hall in the county and state aforesaid, on the 4th day of July, 1901, did then and there unlawfully permit a large number of stock, to-wit twenty-five head of cattle, to herd, graze and run at large in said county, the said Will Smith and Polk Hall being non-residents of this state and residents of the state of Missouri, against the peace and dignity of the state of Arkansas. P. H. Crenshaw, Prosecuting Attorney."

Appellee demurred to the indictment on the grounds: (1) That it did not state facts sufficient to constitute a public offense. (2) That it did not conform to the statute. The court sustained the demurrer, holding the law unconstitutional, and entered judgment discharging appellee, to which the state, by her prosecuting attorney, excepted.

The state, by her prosecuting attorney, filed a motion for a new trial, and, on its being overruled, excepted, and prayed an appeal, which was granted.

Judgment reversed and cause remanded.

George W. Murphy, Attorney General, for appellant.

Section 7234 of Sandels & Hill's Digest is constitutional. 2 Tucker, Const., 627-629; Cooley, Con. Law, 95-7; 94 U.S. 391.

OPINION

HUGHES, J., (after stating the facts).

The indictment in this case charges a violation of section 7234 Sandels & Hill's Digest, by the hearding and grazing of cattle, and permitting them to run at large upon the lands in this state, by a non-resident, a citizen of the state of Missouri. The defendant demurred to the indictment upon the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was sustained by the court, over the objections of the defendant, to which he excepted, filed a motion for a new trial, which the court overruled, to which the defendant excepted, and prayed an appeal to this court, which was granted.

Section 7234, Sandels & Hill's Digest, a violation of which the indictment charges, is as follows: "It shall be unlawful for a person or persons, not residents of this state, owning in part or in whole any stock whatever, to herd, graze, or permit to run at large any stock whatever in any county or counties of this state; provided, this section shall not be so construed as to prevent stock buyers from gathering up and driving such stock through any counties in this state to market."

The contention of the appellee is...