Cox v. State , 30 Ala. App. 321 ( 1941 )

Appellant was convicted of the offense of violating the provisions of Code 1928, § 3212, Code 1940 Tit. 3, § 9, in that he did "unlawfully, or wantonly, or maliciously kill, disable, disfigure, destroy, or injure a cow, the property of D.H. Casey."

There seems no question but that somebody shot and killed a cow belonging to D.H. Casey. And the jury might easily have found, properly from the evidence, that appellant would do such a thing.

But so far as evidence to show that appellant did shoot D.H. Casey's cow, we find none whatsoever. Nor do we find any from which the jury might lawfully infer that he did it.

Just from the fact that there was testimony indicating that appellant was none too good to shoot Casey's cow, and the fact that her carcass was found on lands within appellant's control, the jury (and trial judge) no doubt suspected that appellant was guilty of killing her. And founded their action on that suspicion.

But that will not do.

It was clearly the duty of the trial court to set aside the verdict of the jury on appellant's motion. And for his error in not doing so, the judgment is reversed and the cause remanded.

Reversed and remanded.