Dunklin v. State , 134 Ala. 195 ( 1901 )

TYSON, J.

Section 4327 of Criminal Code confers authority upon any one of the judges of this court in vacation, or upon this court in term time, to issue a writ of error, in a criminal cause, to 'the clerk of the count in •which the judgment of conviction was rendered, confining, however, the granting of such writ on some error .of law apparent on the transcript of the record. This is the procedure adopted in this case. In the transcript of the record before us, it appears that the defendant was indicted for a, violation of section 5091 of the Criminal Code. The indictment contains no averment of the value of the injury to the animal, killed, disabled, disfigured, destroyed or injured. In view of the fact that the fine shall not be less than twice the value of the injury done ¡the animal and that one-half of it shall go to the owner of the property destroyed or injured, this averment was necessary.- — Garner v. The State, 8 Port. 447; Caldwell v. The State, 49 Ala. 34; Bishop on Stat. Crimes, § § 444, 445; 1 Bish. on Crim. Pro. § § 540, 567; 2 Ib. §§ 48, 177. The indictment being fatally defective in the omission of averment pointed out, will not support a judgment of conviction.- — Francis v. The State, 20 Ala. 83, 86; Hornsby v. The State, 94 Ala. 63. We must, however, decline to quash it, but! will reverse the judgment of conviction and remand tine cause, with direction to the trial court to quash, as that court has the authority to order another indictment to be preferred, if it sees proper to- do so. — Code, § 4922.

Reversed and remanded.