| Ala. | Nov 15, 1903
It was not essential to the validity of the indictment that it should have been prepared or signed by the solicitor. It “receives its legal efficacy from the finding and return of the grand jury; and the legal evidence of its verity is the return ‘A true bill,’ apparent upon some part of it bearing the signature of the foreman.”—Holly v. State, 75 Ala. 14" court="Ala." date_filed="1883-12-15" href="https://app.midpage.ai/document/holley-v-state-6511803?utm_source=webapp" opinion_id="6511803">75 Ala. 14; Joyner v. State, 78 Ala. 448" court="Ala." date_filed="1885-12-15" href="https://app.midpage.ai/document/joyner-v-state-6512273?utm_source=webapp" opinion_id="6512273">78 Ala. 448. Assuming the efficacy of the demurrer interposed to raise this point, it Avas Avithout merit. -Of course, if it was abortive in this respect the same conclusion would follow. It also appears that the facts stated in the demurrer Avere, by the reference to it, pleaded in abatement, but this plea does not appear to have been brought to the attention of the court, nor was issue joined upon it, nor was any evidence introduced in support of it. We must, therefore, presume that it was abandoned.
The facts averred in the motion for a discontinuance of the prosecution and in the plea seeking to invoke the defense of former jeopardy were wholly insufficient to
The evidence established that the cows 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 fence where stock laws prevail,” etc. The trial court, it appears from the record, proceeded upon the idea that this statute was without operation and afforded no defense because the several acts relating to establishing stock law districts in Marengo county prescribed certain penalties and remedies which may be enforced 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 afforded by the acts above cited were exclusive. And doubtless it was in consummation 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 of the Code above quoted. The former deals with the acts of the owner in permitting his stock to run at large and provides for the impounding of the stock when taken up, while the latter provides what defense is available to a party who injures stock while trespassing upon his growing crops.
The penalties prescribed in the acts and the remedies provided for their enforcement do not deprive a defendant prosecuted for injury to stock while trespassing upon his groAving crops of the benefit of that fact in mitigation or justification of his act.
This being true, the defendant in this case, had the right to have the jury determine whether or not his act
We find no error in the rulings of the court in excluding testimony offered by defendant.—Thompson v. State, 67 Ala. 106" court="Ala." date_filed="1880-12-15" href="https://app.midpage.ai/document/thompson-v-state-6510833?utm_source=webapp" opinion_id="6510833">67 Ala. 106. Nor was there error in the refusal of the several written charges requested attempting to classify or to have classified the several acts of shooting as distinct offenses. On the undisputed testimony the three acts of shooting constituted a single offense. Meadows v. State, 136 Ala. 67" court="Ala." date_filed="1902-11-15" href="https://app.midpage.ai/document/meadows-v-state-6519831?utm_source=webapp" opinion_id="6519831">136 Ala. 67, 74.
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.