Dunklin v. The State

Dunklin v. The State. Indictment for Unlawfully or Wantonly Injuring or Destroying ah Animal. 1. Indictment for unlawfully■ or wantonly injuring animal; sufficiency thereof. — An indictment which charges that the defendant “unlawfully or wantonly killed, disabled, disfigured,destroyed, or injured a cow, the property of” a certain named person, without averring the value wf -the injury to the animal so killed, disabled, disfigured or injured, is fatally defective, and will not support a judgment of conviction. Appeal from the Circuit Court of Lowndes. Tried before tbe Hon. J. O. Biohardson. The appellant in this case applied to tbe Supreme Court for a writ of error. In compliance with the prayer of tbe petition, the writ of error was awarded. In tbe transcript of the record certified in response to tbe writ of error, it is shown that tbe defendant was tried and convicted under tbe following indictment: “The grand jury of said county charge that, before tbe finding of this indictment, Henry, alias Pat Dunklin, unlawfully or wantonly killed, disabled, disfigured, destroyed, or injured a cow, tbe property of Sallie Beeves, against tbe peace and dignity of tbe State of Alabama.” Tbe verdict of tbe jury was in words and figures as follows: “We tbe jury find tbe defendant guilty on his plea of not guilty and assess bis fine at fifty dollars, and further find the value of tbe injury to be ten dollars.” Judgment was rendered in accordance with this verdict. W. P. McGaugh and Thomas W. Martin, for appellant, cited Code, § 5091; State v. Garner, 8 Port, 447; Sheppard, v. State, 42 Ala. 581; Galdwell v. State, 49 Ala, 34; A dams v. State, 60 Ala. 52; Parker v. State, Hi Ala. 72; Lucas v. State, 96 Ala. 51; Carden v. State, 99 Ala. 131; Duvall v. State, 63 Ala. 12. Oí as. G. Bkown, Attorney-General, for the State. [MAJORITY — TYSON, J.] TYSON, J. Section 4327 of Criminal Code confers authority upon any one of the judges of this court in vacation, or upon this court in term time, to issue a writ of error, in a criminal cause, to 'the clerk of the count in •which the judgment of conviction was rendered, confining, however, the granting of such writ on some error .of law apparent on the transcript of the record. This is the procedure adopted in this case. In the transcript of the record before us, it appears that the defendant was indicted for a, violation of section 5091 of the Criminal Code. The indictment contains no averment of the value of the injury to the animal, killed, disabled, disfigured, destroyed or injured. In view of the fact that the fine shall not be less than twice the value of the injury done ¡the animal and that one-half of it shall go to the owner of the property destroyed or injured, this averment was necessary.- — Garner v. The State, 8 Port. 447; Caldwell v. The State, 49 Ala. 34; Bishop on Stat. Crimes, § § 444, 445; 1 Bish. on Crim. Pro. § § 540, 567; 2 Ib. §§ 48, 177. The indictment being fatally defective in the omission of averment pointed out, will not support a judgment of conviction.- — Francis v. The State, 20 Ala. 83, 86; Hornsby v. The State, 94 Ala. 63. We must, however, decline to quash it, but! will reverse the judgment of conviction and remand tine cause, with direction to the trial court to quash, as that court has the authority to order another indictment to be preferred, if it sees proper to- do so. — Code, § 4922. Reversed and remanded.