Brown v. State , 42 Ala. 540 ( 1868 )

A. J. WALKER, C. J.

The delinquency of the defendant charged in the indictment is attributed to the violation of a clause of the Revenue Law of 22d February, 1866. § 105 of that law defines the offense of failing to render a list of taxable property. — Pamphlet Acts of 1865 and 1866, p. 35. Under this section it is not necessary to aver or prove a positive fraudulent intent. Under it the accused is indicted.

§ 103 of the same act defines the offense of knowingly rendering a false or fraudulent tax list for the purpose of defrauding the State or county.

The defendant is stated in the bill of exceptions to have rendered a list of taxable property at the proper time and to the proper officers. It seems, however, that he did not put into the list rendered a pistol, supposed to have been properly taxable against him. If this was so, he could not be legally convicted under the present indictment, for it is not framed under a statute which touches the offense of rendering a false list. The omission to include in a tax list any particular piece of property, is not a violation of § 105. It is a violation of § 103, provided the omission was knowingly made, and there was an intent to defraud the State or county. The court erred in not excluding testimony, as requested by the defendant.

Aside from the above considered point, the court erred in instructing the jury, that the minority of a son to whom a pistol had been given, created the presumption of property in the father. The father is not the owner of the son’s property. § 16 of the act above cited authorizes the assessment of property to the person owning or having it in possession on the first day of March. The charge of the court would have authorized the jury to find the defendant subject to assessment as the owner, although he was not in possession on the first day of March.

We do not think, upon the evidence before us, the defendant can be legally convicted; but we think it the safer course to remand the case.

Reversed and remanded.