Flowers v. State

53 So. 276 | Ala. | 1910

ANDERSON, J.

Section 7813 of the Code of 1907 prohibits the owner or person in control of stock from knowingly permitting stock to go upon the lands of another in any stock district, and without the consent of the owner of the land. The local act for Coffee county (section 1, p. 1242, Acts 1900-01) makes it unlawful only for the owner of the stock to knowingly, voluntarily, or wilfully permit certain animals to go at large in said county. The general statute is directed both at the owner and the person in control of the stock, and makes it an offense for them to knowingly permit stock to go upon the lands of another without his consent, and which is situated in a stock district, and whether the stock is permitted to run at large or not. The local law is intended only against the owner who permits his stock to run at large, and not for merely permitting the stock to go upon the lands of another without his consent. There is therefore a field of operation in Coffee county for both laws and the validity of the local law is necessary to put Coffee county in a stock law district and which is essential to a prosecution under •either statute. The affidavit in question evidently attempts to charge an offense under the local act, and not under section 7813 of the Code of 1907, and was not subject to the demurrer interposed thereto.

It is insisted that this act is repugnant to section 45 of the Constitution of 1901, and falls within the influence of the case of Barnhill v. Teague, 96 Ala. 207, 11 South. 444. We do not think that the act in question possesses the vice pointed out as being in the act condemned in this case. Said act attempted to extend by mere reference the estray law to same, and did not set out said estray law. The estray law did not form a part of the law in question, but was a separate and distinct law, and the Pike county act sought- to incorporate it in same by a mere reference thereto. The act in question by section 5 merely makes it a penalty to violate section 1. We do not understand section 45 of the Constitution as meaning that one provision of an act cannot be extended or made to apply to another section of the same act. Section 5 does not amend or extend any other law. It merely penalizes a. violation of section 1 of the same law — the act then enacted. Neither is section 5 foreign to the subject expressed in the title of the act. The title is to prevent stock from running at large in Coffee county, and a penalty for violation of said act is clearly germane to the prevention of stock from running at large. The defendant was charged with permitting a cow to run at large, an offense continuous in character, and the state was not confined to any one time. Nor was there error in permitting proof that yearlings belonging to the defendant were seen with the cow. This tended to show the ownership of the cow, and that defendant was permitting her stock, including the cow, to run at large. As we have heretofore stated, this affidavit was not framed under section 7813 of the Code, but, even if it was, that part of the oral charge excepted to was error.

The affidavit charged a cow and that the defendant was the owner, and she could not be convicted for the yearlings, nor as to the cow unless she was the owner thereof. The local act is confined to the owner, and, while the Code includes owner or person in control, the affidavit charges owner, and the state was confined to Its- allegation whether the prosecution was under the general or local statute. For the same reason, the trial court erred in refusing charge 1 requested by the defendant and in giving charge A, requested by the state.

The trial court did not err in refusing the general charge requested by the defendant, as there was proof from which the jury could infer that defendant was the OAvner of the bluish coav, and that she lmoAvingly, voluntarily, or wilfully permitted her to run at large in Coffee county. The statement made by defendant to the officer, unexplained, could he taken as an inculpatory one, and a predicate was laid for its admission.

The judgment of the county court is reversed, and the cause is remanded.

Beversed and remanded.

Doavdell, C. J., and Sayre and Evans, JJ., concur.