9 Port. 633 | Ala. | 1839
The rule with respect to the-proof of negative averments- in indictments, appears to have been subject to much change in the English courts, —they sometimes ho-ldi-ng,- that the prosecution was bound to establish the negative fact averred ; as in the cases of Rex vs. Rogers, 3 Camp. 654; Rex vs. Hazy ef
The case of Rex vs. Rogers, above cited, was very similar to the present, as the prisoner was indicted for coursing deer in an enclosed ground, “ without the consent of the owner but this case was overruled by that of Rex vs. Hazy et al. in which it was held, on an indictment for lopping trees1 “ without the consent of the owner,” that the want of consent might be inferred, from the circumstances attending the act itself — (See also Rex vs. Allen, Ry. & Moody Cr. C. 156.) In the still later case of Rex vs. Hanson, above cited, a conviction was had before two justices, for selling ale without an excise license. The information negatived the defendant’s having -a license, but there was no evidence to support this negative averment; the only evidence being, that the defendant had in fact sold the ale. The conviction was held to be proper.
It is difficult to distinguish this case, from the one now under consideration; as, in both cases, the statute makes use of negative words, but, in effect, prescribes a qualification which must be had, before the act can be lawful. If a contrary rule was to be adopted, with reference to the statute under which the defendant is indicted, it would be difficult, and, in many cases, wholly impracticable, to prove the want of consent; as, in the case of the absence or death of the master, owner or overseer of
We are of opinion, that there was no error in refusing the instruction asked for, or in those which were giyen.
