Ashworth v. State , 63 Ala. 120 ( 1879 )

STONE, J.

It is contended for the accused, that the present indictment is defebtive, and should have been struck from the file, because the name of the owner df the ox, alleged to have been unlawfully or wantonly killed, was not indorsed on the indictment as prosecutor. The indictment is framed under section 4410, Code of 1876, which directs that “ no bill of indictment shall be found, or prosecution maintained, except upon the complaint of the owner of the stock, or his lawful agent.” The statute in question does not require, in terms, that the record shall show the complaint was made by the owner, or his lawful agent. Grand jurors are a part of the court, act in the interest of the public, and under a solemn oath ; 'and -we hold it to be our duty to indulge the same presumptions in favor of their correct action, we would indulge in favor of other acts, official and quasi-official. Rite esse acta, is the presumption in such cases. - Brandon v. Snows, 2 Stew. 255; 1 Greenl. Ev. § 20a; 2 Best Pre. Ev. § 353. The Circuit Court did not err in refusing to strike the indictment from the file. — Perry Co. v. S. M. & M. R. R., 58 Ala. 546. Should the grand jury disregard this solemn duty, and prefer an indictment when neither the owner of the stock nor his lawful agent made complaint, the court, on motion and proof, would quash the indictment. Sparrenberger v. The State, 53 Ala. 481.

2. The conversation between Cook, the owner of the ox, and the accused, when the latter drove the ox to the residence of the former, can not be construed as a license or .authority to kill the ox. The language- implies altercation, and some anger. It rather contains a warning, that, if Ash-worth killed the ox, he would be required to pay for it, than a permission to kill him. If it be thought the remark of Cook gave to defendant authority to shoot and kill the ox,, the language is of so ambiguous a character that it should have been left to the jury to say whether or not it conferred the authority. The second of the charges asked was rightly refused, because it claimed an acquittal on the assumed ground that certain words spoken by Cook justified Ash-worth’s act, When, as we have seen, they were of too doubtful meaning to justify such positive instruction.

3. The charge first asked was also rightly refused. The value of the animal unlawfully or wantonly, killed, or the amount of damage done the owner, is not an inquiry on the question of guilt vel non. On the question of fixing a minimum fine, it is material. — Code, § 4409.

4. To excuse a defendant, and justify his acquittal, on the ground that full compensation has been paid, or tendered before the commencement of the prosecution (Code of 1876, § 4411), there must be actual payment, or actual tender made, or excuse given for not tendering, which is good and sufficient under the general law of tender; and the money must be brought into court, and so deposited that the owner may obtain it, if the plea of tender be made good. The simple fact that the owner of the, property claimed more than the defendant believed was full compensation, is no sufficient excuse for not tendering. Nor is it made the duty of the owner, as matter of law, to make known what sum will satisfy him. Tender would rarely, if ever, become necessary, if parties were agreed on the sum actually due and owing. One who seeks to obtain the advantage which a tender gives, must determine the amount for himself; and he loses all benefit of the tender, even when actually made, if the sum tendered be ascertained to be too little. — Code, § 2987; Rudulph v. Wagner, 36 Ala. 698, and citations. Charges 3 and 4 were rightly refused, because neither of them comes up to the rule above declared. Charge number 4 is objectionable on another account. The bill of exceptions contains no evidence that the sum named by Cook, thirty dollars, was “ the lowest he was willing to receive.” On this account, the charge must be classed as abstract.]

The judgment is affirmed.