McMickens v. State , 18 Ala. App. 36 ( 1921 )

The defendant was prosecuted under section 6230 of the Code of 1907, for killing a hog, the property of R.B. Eaton.

The defendant moved to quash the indictment on the grounds that the prosecution was not commenced by the owner of the property, and that the indictment was found without legal evidence before the grand jury. The motion to quash the indictment was properly overruled.

Though Code of 1876, § 4410, declares that for the unlawful, wanton, disabling, or injuring certain animals named, "no bill of indictment shall be found, or prosecution maintained, except upon complaint of the owner of the stock," etc., the present Code contains no such provision, and the indictment may be preferred in the same manner as other indictments.

Nothing appearing to the contrary, it will be presumed that the grand jury had legal and sufficient evidence before it upon which to find the indictment. Ashworth v. State, 63 Ala. 120.

The defendant also moved to require an election on the part of the prosecution as to whether it would continue to prosecute this case or a civil suit pending in the same court under section 4245 of the Code, wherein the owner of the hog was seeking to recover the statutory penalty of five times the value of the hog. The defendant contends that the overruling of this motion was error.

Section 2451 of the Code reads as follows:

"No suitor is entitled to prosecute two actions in the courts of this state at the same time, for the same cause and against the same party, and in such a case the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously; and the pendency of the former is a good defense to the latter, if commenced at different times."

It will be noted that election is not provided for except in case involving, first, "the same cause," and, second "against the same party."

Section 4245 of the Code covers an entirely different set of conditions, it being not a prosecution for a crime subject to sentence to the county jail or hard labor or the payment of a fine, but a purely civil proceeding, providing for the payment of a penalty for injury to stock alone, and for such injury only under certain conditions; that is, when the owner of the premises, not having a lawful fence, destroys or injures any animal coming on such premises. Section 4245 of the Code penalizes one who, not having a lawful fence, destroys or injures an animal coming inside such fence, and does not in any sense undertake to provide compensation as such to the owner of the animal, while section 6230 does provide for compensating the owner.

Moreover, this is not a case of a suitor prosecuting two actions in the courts of this state at the same time. Eaton did file a suit for the penalty under section 4245 of the Code, but the state of Alabama is the party prosecuting the instant case. One is a criminal prosecution. The other is a civil proceeding to recover a statutory penalty. In one case there is a fine, and may be imprisonment in the county jail or hard labor, while in the other the recovery is for a penal sum.

What is said above in regard to election may also be said in regard to the defendant's plea in abatement predicated on the same facts.

The plea of another action pending is bad, unless the judgment rendered in the first action would conclude the parties and operate as a bar to the second. Milbra v. Sloss-Sheffield Co., 182 Ala. 622, 62 So. 176, 46 L.R.A. (N.S.) 274; Foster v. Napier, 73 Ala. 595; Davis v. Petrinovich, 112 Ala. 654, 21 So. 344, 36 L.R.A. 615.

Charges 5, 6 and 7 were properly refused.

The civil suit for the recovery of a statutory penalty was not admissible in mitigation or justification of the offense with which the defendant was charged, but if in any event admissible it was only in mitigation of the fine.

Written charge 18 is abstract and involved, as it does not appear how or to what extent the pendency of the civil suit should be considered by the jury.

Refusal of written charges made the basis of the eighth and twentieth assignments or error do not constitute reversible error. These charges were both abstract, there being no proof as to whether defendant's crops were inclosed by a lawful fence; or, if not, that his crop was cultivated without a fence where stock law prevails.

If the defendant was of the opinion that the venue was not proven, this matter should have been brought to the attention of the trial court, as required by circuit court rule 34. Ray v. State, 16 Ala. App. 496, 79 So. 620; Chambers v. State,17 Ala. App. 178, 84 So. 638.

In its oral charge and in given written charges the court charged the jury on the doctrine of reasonable doubt, and its refusal to give other written charges to like effect was not error. This much may also be said in reference to the refusal of the court to charge further on the subject of malice of the defendant toward the owner of the hog. Charges to the effect that, if the jury should find the defendant guilty, it was not bound to fix a fine of at least double the value of the hog, were contrary to the provisions of section 6230, and were properly refused.

The oral charge of the court fully covered the question of the interest of any witness testifying in the case, and the refused written charge to like effect was without error. Written charge to the effect that defendant would not be guilty if Hogan killed the hog was abstract, as there was no evidence that Hogan killed the hog.

The motion in arrest of judgment was properly overruled. A motion in arrest of judgement is granted only on matters apparent on the record. Harris v. State, 153 Ala. 19, 49 So. 458; Curry v. State, 120 Ala. 366, 25 So. 237; Blount v. State, 49 Ala. 383; Holley v. State, 75 Ala. 14; Parsons v. State, 179 Ala. 23, 60 So. 864.

The motion for a new trial will not be reviewed, inasmuch as the record does not show what, if any, evidence was offered on the motion. Crawley v. State, 16 Ala. App. 545, 79 So. 804.

According to the record, the summons and complaint in the case of Eaton against the defendant was admitted in evidence, and error predicated on ruling to the contrary is not well taken.

It was competent for the witness Eaton to testify that the defendant said "he killed a hog." This was a declaration against interest. Moye v. State, 12 Ala. App. 127, 67 So. 716.

The testimony of the witness Eaton:

"That he found wounds on the hog." "It looked like it had been shot with a load of shot right in the head." "When I found the hog it was 10 or 12 feet from the fence." "There was the mark where it had been drug outside." "I found a sign. * * * It looked like the hog had been wallowing." "There was signs on the ground where the grass and stuff had been drug and parted back, and the marks showed on the surface of the ground"

— was properly admitted as these were all circumstances and facts that tended to prove the corpus delicti. Patterson v. State, 202 Ala. 65, 79 So. 459. The witness Eaton was properly allowed to state the value of the hog. Moss v. State,146 Ala. 686, 40 So. 340;¹ Vandegrift v. State, 151 Ala. 105,43 So. 852.

Irrespective of the conflicting contentions on the part of counsel for the defendant and the state that each so acted and conducted the trial as to be in error, we have considered the entire matter growing out of the several controversies on the part of counsel with a view solely of determining whether any of the tendencies of such controversies was to prejudice the substantial rights of the defendant before the jury, and a careful consideration of the record impresses us that these matters could in no wise have entered into or affected the verdict of the jury. 4 Mich. Dig. p. 322.

There was no evidence as to whether the fence inclosing defendant's field was a lawful fence, or whether stock law existed in that area; consequently there was no error in refusing to permit the witness to answer the question as to the amount of corn destroyed by Eaton's hogs. Besides the testimony was not confined to injury to the crops at the time of killing the hog.

It was clearly incompetent for the defendant to show by the witness Huey, Hogan, and Justice that they knew of no one in the community where Eaton lived that had not had trouble with him. His (Eaton's) character could not be proved by particular acts. Andrews v. State, 159 Ala. 14, 48 So. 858.

The witness J.W. Hogan testified that he shot some of Eaton's hogs, and that he and defendant had a crop side by side in the same field, and there was no error in not permitting the defendant to testify as to whether he heard the testimony of this witness to this effect.

The question propounded to the defendant relative to certain statements made by him to the witness J.P. Eaton, Grady Thompson, and S.P. Waggoner at certain named times and places were proper. These three parties were placed on the stand by the state, and, the answers being as to material matters, which the defendant denied making, this was one of the ways whereby the state could impeach the defendant's testimony. Hill v. State, 194 Ala. 11, 21, 69 So. 941 2 A.L.R. 509. The language of the questions put to the witnesses Eaton, Waggoner, and Thompson was substantially the same as the predicate, and no error was committed by the trial court in overruling defendant's objection and motion to exclude. Hill v. State, supra; So. Ry. Co. v. Williams, 113 Ala. 622, 21 So. 328.

There being some testimony that R.B. Eaton, a witness for the state, had a bad reputation in the community where he lived, and certain witnesses for the defendant having testified that they would not believe him on his oath in a court of justice, the state then had a right to show his general good character for truth and veracity. Redmond v. State, 4 Ala. App. 190,59 So. 181.

There was no error in overruling the objections to the questions propounded to the witness Verdo Norris, relative to the character of the witness Eaton.

There is no reversible error in the record, and the judgment is affirmed.

Affirmed.

¹ Reported in full with opinion, in the Southern Reporter; not reported in full in Alabama Reports.