Prince v. StatePrince v. State
It wаs not essential to the validity of the indictment that it should have been preрared or signed by the solicitor. It “receives its legal efficacy from thе finding and return of the grand jury; and the legal evidence of its verity is the return ‘A true bill,’ aрparent upon some part of it bearing the signature of the foreman.”—Holly v. State,
The facts averred in thе motion for a discontinuance of the prosecution and in the plеa seeking to invoke the defense of former jeopardy were wholly insufficient to
The evidence established that the сows were killed by defendant while trespassing upon his growing crops which were in a stock law district. Section 5092 of the Code provides that upon the trial under an indictment of the character of this one, “the defendant may prove in mitigation or justification, as the jury may determine, that at the time of the injury, the stock was trespassing upon a growing crop * * cultivated without a fеnce where stock laws prevail,” etc. The trial court, it appеars from the record, proceeded upon the idea that this statutе was without operation and afforded no defense because the several acts relating to establishing stock law districts in Marengo county рrescribed certain penalties and remedies which may be enforсed against the owner of the stock.—Acts, 1880-81, p. 163; Acts, 1888-89, p. 67; Acts, 1900-1, p. 718; Acts, 1892-93, p. 492. The theory- of the holding is based upon the proposition that the remedies аfforded by the acts above cited were exclusive. And doubtless it was in cоnsummation of that theory that the affirmative charge, with hypothesis, was given at the instance of the State. In this there was error.
There is nothing in these acts, in the remotest degree, inconsistent with the provisions 'of the section оf the Code above quoted. The former deals with the acts of the ownеr in permitting his stock to run at large and provides for the impounding of the stoсk when taken up, while the latter provides what defense is available to a party who injures stock while trespassing upon his growing crops.
The pеnalties prescribed in the acts and the remedies provided for their enforcement do not deprive a defendant prosecuted for injury tо stock while trespassing upon his groAving crops of the benefit of that faсt in mitigation or justification of his act.
This being true, the defendant in this case, had thе right to have the jury determine whether or not his act
We find no еrror in the rulings of the court in excluding testimony offered by defendant.—Thompson v. State,
What we have said will suffice for another trial without a review in detail of the many written charges re-, fused to defendant.
Reversed and remanded.