Ghent v. State , 96 Ala. 17 ( 1892 )

THOEINGTON, J.

The prosecution in this case was begun before a Justice of the Peace, and on appeal from that court it was tried in the County Court, where the defendant being convicted, he brings the case to this court by appeal.

The proceedings before the justice were very irregular, it being doubtful from the papers, what offense, if any, was charged against the defendant. In the County Court the statement of the offense, filed by the solicitor, is evidently based on the provisions of section 3868 of the Criminal Code. The view we take of the case makes it unnecessary for ns to decide the questions reserved by tire defendant on the pleadings and testimony. "We shall only consider the rulings of the court on the charges asked by the defendant and refused by the court.

The undisputed testimony shows that the father of defendant, and the prosecutor, owned adjoining lands, separated by a division fence; that the land of each was enclosed, and that both places were within the limits of the same lawfully declared stock district. The evidence for the prosecution showed that the division fence, on or about March 16, 1891, was let down by defendant, and the prosecutor’s cattle driven by defendant from the prosecutor’s enclosure into the enclosure of defendant’s father, when they were impounded by the latter. The defendant’s testimony tended to show that he was innocent of the charge.

The title of the act in the Original statute of Feby. 13, 1879 (Acts 1879, p. 168) is “To prevent illegal impounding of animals running at large,” and the title as contained in section 3868 is, “Driving animals from lawful into unlawful district to be impounded.” The language of the act is, “Any person, who knowingly and wilfully drives or carries any animal running at large in any district where it is lawful for such animal to run at large, into any other district where it is not lawful for such animal to run at large, with the intention that such animal shall be impounded, must, on conviction, be fined,” &o. This is a penal statute and can not be extended by construction to embrace cases not plainly within its meaning. “One who commits an act which does not come within the words of a penal statute, according to the .general and popular understanding of them, when they are not used technically, is not to be punished thereby, merely because the act contravenes the policy of the statute.” — Young v. The State, 58 Ala. 358. In order to bring a case within the terms of section 3868 of the Code, the following concurring facts must exist: 1. The animal must be running at large in a district where it is lawful for such animal to run at large. 2. Such animal must be driven or carried into another district where it is not lawful for the same to run at large. 3. The person who so drives or carries such animal must do so knowingly and wilfully, with the intention that such animal shall be impounded.

Yiewing this statute in the light of other legislation of the State on the same subject, it obviously refers to two classes of districts. One, territory in which no stock law is of force; the other, territory which is subject to such a law; and tbe offense contemplated is tbe lmowingdy and wilfully driving or carrying animals from tbe former into tbe latter, witli tbe intention tbat sucb animals shall be impounded. It may be a question for tbe legislature wbetber tbe statute should not be broadened in its terms, in order to make it more effective to suppress tbe evil at which it is aimed, but tbe courts must deal with tbe statute as they find it. It is clear tbat tbe facts proved by tbe prosecution, if accepted as true, without reference to tbe testimony of tbe defendant to tbe contrary, do not make out case coming within tbe terms of tbe statute. The animals, defendant is charged with driving, were not running at large in a district, within tbe meaning of tbe statute, where it was lawful for them to run at large, nor were they driven from a district of tbe one kind into a district of another kind, as sucb districts are hereinabove defined.

Several of tbe charges requested by defendant conformed to these views and should have been given. In refusing to give them tbe County Court erred and for sucb error tbe judgment of tbat court is reversed, and, inasmuch as it appears tbat no conviction can be bad, judgment will be here entered discharging tbe defendant.

Reversed and rendered.