Brown v. State , 100 Ala. 92 ( 1893 )

McCLELLAN, J.

These three cases were tried below and are submitted here together. They involve the same questions, presented here in separate bills of exceptions and records. Each of the bills of exceptions states that it contains all the evidence adduced on the trial. There is no evidence in either of them that the offense charged and under investigation was committed in the County of Montgomery, by the grand jury of which the indictments were returned in the criminal court of which the trials were had. The offenses were therefore not proved as laid and the City Court should have given the affirmative charge for the defendant in each case, as requested by them severally in writing. Cawthorn v. State, 63 Ala. 157.

The third counts of the indictments under which these convictions were had is in the form prescribed by the Code, and is therefore not open to the objection taken by the demurrer that they fail to aver that the timber was cut, &c. by the several defendants with the intent to convert it to their own use. Criminal Code, p. 273.

We deem it unnecessary in these cases to construe the clause of section 3790 under which the indictments are drawn further than to say that it at least embraces all growing or standing trees and denounces as a crime the cutting and carrying away, under the circumstances and with the intent stated, of any tree wholly regardless of its adaptability to particular uses and of the uses to which it is in fact devoted by the wrongdoer. The evidence adduced on these trials went to show that the defendants felled many large trees, converted them into cord wood or fire wood and carried them away. The court charged the jury that under the statute wood and timber were one and the same thing. This instruction was to meet the contention of the defendants that trees which are fit only for fire wood, or which are converted into and used as, fire wood could not be timber within the meaning of the statute. This view being unsound, the charge when referred to the evidence stated above was not erroneous as applied to these cases, though we are not to be understood as expressing any opinion upon it considered as a general proposition.

Por the errors pointed out above the judgment in each of these cases is reversed. The causes are severally remanded.