Northcot v. State , 43 Ala. 330 ( 1869 )

PECK, C. J.

The appellant was indicted under section 3733 of the Bevised Code, for malicious injury to animals. It appeared in evidence that the injury was inflicted by shooting. On the trial, the State offered as a witness the owner of the animals charged to be injured, and he was admitted, against the objection of the accused, who thereupon excepted to the ruling of the court.

Eor this offense, the punishment, on conviction, is a fine of not less than twenty, and not exceeding five, hundred dollars, and imprisonment in the county jail, or hard labor for the county, for not more than six months.

By section 3738 of the Bevised Code, the fine, in such a case, goes to the party injured. "We hold, therefore, that the owner is an interested party, and for that reason, an incompetent witness for the State.

Eor this error of the court, the judgment must be reversed.

There are several other objections made on the record, all of which we think it unnecessary to notice, as they may not arise on another trial. We will refer to two or three of them only. On the trial, the State introduced evidence tending to show malice, on the part of the accused, to the son of the owner of the animals. This evidence the court refused to exclude from the jury, on motion of the accused. On this evidence, the court charged the jury, “ that malice to the son, is sufficient to sustain the charge of malice in this case, if that malice was the moving cause to the shooting of the stock, because he has a reversionary interest in the stock.”

This evidence should have been excluded from the jury, and, consequently, the charge was improper, for this reason, if for no other. But the charge was wrong on principle. Malice is the gravamen of this offense, and it must be malice to the owner. If the injury was inflicted without any malice to the owner, it is a mere trespass, and not malicious mischief.

After the court had given a general charge to the jury, the accused proposed several charges in writing, and asked the court to give them to the jury. No objection was made to the matter of the charges, but the court refused to give them to the jury, because, on the previous circuit, a rule had been adopted by the court, that no written charge would be given, unless it was handed to the court before the general charge was given. The refusal of the court to give said charges, was excepted to by the accused. It not unfrequently happens, that a party may believe the general charge of the court needs to be explained, or limited; and in such case, he certainly has the right to ask for a proper explanation or limitation, and, if asked in writing, the court is bound to give or refuse it, in the terms in which it is written. — Revised Code, § 2756. By this section, all charges moved for, by either party, are required to be in writing, and to be given or refused, in the terms in which they are written.

We are constrained to hold the rule, here referred to, an unwise rule, and we can not give it our sanction or approval. What is here said, we are persuaded will prevent its being adhered to in the future; and as the judgment of the court below must be reversed, on account of the error in admitting the owner of the animals to testify as a witness on behalf of the State, against the objection of the accused, no further notice need be taken of the exception to the refusal of the court to give the charges asked.

Let the judgment of the court be reversed, and the cause remanded for a new trial.