Smith v. StateSmith v. State
This аppellant, defendant below, was tried and convicted upon an indictment which chаrged that “he feloniously took and carried away one cow, an animal of the cow kind, of the value of $12.00, the personal property of Mandy Robinson.”
All of the .testimony uрon the trial described the animal alleged to have been stolen as a “bull yearling”.
The defendant requested, in writing, the general affirmative charge, which the court refused.
We аre of the opinion the court erred to a reversal in refusing said charge. Under all the evidence the defendant was clearly entitled to a directed verdict. Marsh v. Statе,
“The theft of a ‘cow or an animal of the cow kind’ is made grand larceny by our statutes. Cоde, § 7324 [Code 1940, Tit. 14, § 331], All the provisions of a statute are to be construed according to the fair import of their terms, and if the word ‘cow’ as used in the above statute includes or was intended to include both the male and the female of the bovine species, the words ‘or animal of the cow kind’ appearing in the statute are of no import and have no field of operation. The truth is that a cow is a female of bovine animals. In its most cоmmon acceptation it is a ma
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ture female of such animals, but the general tendency among the courts is to treat the word ‘cow’ as including an immature female of such sрecies, and for that reason our Supreme Court has held that a ‘heifer’ is a cow. Pаrker v. State,
“Construing all of the provisions of the above section 7324 together, we arе of the opinion that when, in this state, an indictment charges the larceny of a ‘cow/ its аllegations are only met by proof of the larceny of a female animal of the cow kind. ‘A cow is a female animal of the bovine species; hence under an indictment for stealing a cow, a defendant cannot be convicted of stealing a bull.’ ”
In our case of Carroll v. State,
In other words, an indictmеnt for larceny should describe the property with such certainty as will enable the jury to dеcide whether what is proven to be stolen is the very same with that upon which the indictment is fоunded, and show judicially to the court that it was the subject matter of the offense chargеd, and enable the defendant to plead his acquittal or conviction to a subsequеnt indictment relating to the same property.
The indictment in this case, as stated, charged the larceny of a cow, an animal of the cow kind, the latter phrase being merеly descriptive of the one preceding — not in the alternative. It was therefore necessary for the State to prove, under the required measure of proof, that thе defendant feloniously took and carried away a female animal of the cow kind, — a cow. This the State failed to do. All the evidence adduced upon the trial of this case related, solely, to “a small red bull yearling with white markings.”
Since the pronouncemеnt of the Marsh case, supra, Section 7324 of the Code 1907 has been reenacted by thе Legislature of Alabama as Section 4905 of the Code 1923, Code 1940, Tit. 14, § 331, without substantial change in its рrovisions, and so the construction placed by this court upon Section 7324 of the Codе 1907, in the quoted excerpt- from the Marsh case, supra, has, under the law, entered into and become a part of Section 4905 of the Code of Alabama, 1923.
A motion for a new trial was duly -made and presented. This motion was based upon several separatе and distinct grounds, a'number of which were well taken, and in overruling the motion the co.urt fell into error also.
Under the facts disclosed by the testimony in this case, it is obvious that the defendant сannot be legally convicted of the offense charged against him in the indictment. To rеmand this case to the court below for another trial would be to do a useless thing. Courts will nоt render useless orders, or indulge in useless things. The judgment of conviction appealed from, for the reasons stated, is hereby reversed, and in accordance with the provisions of Section 3258, Code 1923, Code 1940, Tit. 15, § 389, and upon authority of the case of Robison v. State, Ala.App.,
Reversed and rendered.
Notes
Ante, p. 12.