| Ala. | Nov 15, 1890
The statute — Code of 1886, § 3861 — is of relatively recent enactment, and is somewhat a new departure in criminal jurisprudence. Still, we can not say that it was not called for by considerations of public policy. Its object was to prevent or redress a grievance, the nature of which is clearly shown by the facts of the case before us. After fixing venue and time, the witness Weatherly .testified, that “he rode his mule to a church in said county, and hitched it, and went into a house in which Eitta Harris, the sister of defendant, lived, and staid a few minutes, and then went out again. After a few hours he went and looked-for his mule, and found it gone. That he and Hison Weatherly went in search of the mule next day, and found it several miles away. That he owned the mule, and that he was the prosecutor in the case.” The mule was found in posession of the defendant.
The court, at the request of the prosecution, charged the jury that, “if they believed the evidence, they must find the defendant guilty.” The defendant then asked the following charge: “If the jury find that there was no wrongful intent, coupled with a wrongful action, they should not convict the accused.” This was refused, and an exception reserved.
It is sufficient for the wants of this question that the record fails to show that, when asked, this charge was in writing. That, of itself, justified its refusal. — Code of 1886, § 2756, and note; 3 Brick. Dig. Ill, § 70.
We hold, however, the charge was rightly refused on the merits. To unlawfully take for temporary use, or unlawful!? to use temporarily, “any animal or vehicle, without the consent of the owner, or person having the control thereof, and
It may be true, under the presumed license which friendship sanctions or tolerates, that one person may sometimes take or use temporarily the animal or vehicle of another, without intending to do an unlawful act. In such instances, if they occur, the circumstances will be found to be such as to raise the presumption that, if permission had been asked, it would have been granted. The safety in such case, however, lies in the fact that “no prosecution can be commenced, or indictment found” [under the statute we are considering], “except upon the complaint of the owner, or person having the control of such animal or vehicle.” Under this safeguard, there is little danger that any prosecution will be set on foot, unless the liberty taken is a flagrant one. There is nothing in the facts of this case to palliate the unwarrantable liberty the defendant is proved to have taken.
We have now disposed of all the questions raised in the court below. The defendant contends that the indictment in this case is defective, in that it fails to charge that the prosecution was commenced, or the indictment found, upon complaint of Isaac Weatherly, the owner of the mule. This was not moved in defense, or in arrest of judgment in the court below, but is urged before us as ground of reversal.
In Clark v. State, 19 Ala. 552" court="Ala." date_filed="1851-06-15" href="https://app.midpage.ai/document/clark-v-state-6504587?utm_source=webapp" opinion_id="6504587">19 Ala. 552, it was said to be the correct rule on the subject, “that if there be any exception contained in the same clause of the act which creates the offense, the indictment must show negatively that the defendant does not come within the exception.” Bishop, 1 Cr. Proc., § 635, quotes with apparent approbation the following language: “If there is an exception in the enacting clause, the party pleading must show that his adversary is not within the exception; but, if there be an exception in a subsequent clause, or subsequent statute, that is matter of defense, and is to be shown by the other party.” See Carson v. State, 69 Ala. 235" court="Ala." date_filed="1881-12-15" href="https://app.midpage.ai/document/carson-v-state-6511123?utm_source=webapp" opinion_id="6511123">69 Ala. 235 ; Gratton v. State, 71 Ala. 344" court="Ala." date_filed="1882-12-15" href="https://app.midpage.ai/document/grattan-v-state-6511388?utm_source=webapp" opinion_id="6511388">71 Ala. 344; 1 Bish. Cr. Proc., §§ 631, et seq.
It is manifest that the clause of the statute relied on for reversal in this case, is distinct from that which defines the offense, and in ho sense modifies or qualifies the constituents of this statutory misdemeanor. It simply declares, that for the
We are convinced that this defense need not be anticipated by an averment in the indictment, and that its omission is no • ground for • arrest of judgment, or for reversal in this court.
We may add, the trial court should not permit a conviction under this statute, if it appears that the prosecution was not commenced by, or under the sanction of the owner, or person having the control of the property. If it be asked, in what manner this defense shall be presented, we do not announce absolutely. Possibly a motion to quash the indictment, as unadvisedly found, would be an available remedy. — 3 Brick. Dig. 278, § 413.
There was no ground for such motion in the present case. Weatherly, the owner of the mule, testified that he commenced the prosecution.
There is no error in the record.
Affirmed.