48 Ill. App. 663 | Ill. App. Ct. | 1893
Opinion of the Court, the
This was a proceeding begun before a police magistrate by appellant against appellee, on complaint for a violation of an ordinance of the city, which made it unlawful for domestic animals named to run at large, and declared the herding or staking out of any such animator in any way permitting such animal, whether in charge of any person or not, to graze on any of the streets or alleys of said city, to be a violation of the ordinance.
The case was removed by appeal to the Circuit Court, where a trial by jury resulted in a verdict for the appellee, and judgment was rendered, against the city for cost and execution was awarded therefor.
It was error to render judgment against the city for costs. Town of Nokomis v. Harkey, 31 App. Rep. 107.
It was error to award execution against the city. City of Chicago v. Halsey, 25 Ill. 595; City of Kinmundy v. Mahan, 72 Ill. 462; City of Bloomington v. Brokaw, 77 Ill. 194; Village of Kansas v. Juntgen, 84 Ill. 360.
The court modified one of the instructions asked by the city so as to make it necessary to show that the defendant intentionally permitted his horse to graze on the street, and gave an instruction to the same effect asked by defendant.
In view of the evidence, which we have read with care, we are inclined to think the use of the word iC intentionally ” was calculated to mislead the jury. The ordinance is violated when grazing on the street is permitted. No positive or preconceived intention is necessary. Nor would a mere incidental and trifling act of grazing be sufficient, as if a horse were to snatch a mouthful of grass when led along the street. There must be something substantial and it must be permitted, but it is not necessary to show design or intention; permission is enough. As the case must be again tried, we have thought it necessary to refer to this point, though we do not care to discuss the evidence. The conduct of the juror Levering was quite reprehensible, and according to the authority of Jewsbury v. Sperry, 85 111. 56, was sufficient to require a new trial.
The judgment will be reversed and the cause remanded.