Husbands v. State ( 1916 )

Sykes, J.,

delivered the opinion of the court.

An affidavit was made against the appellant and one Joe Peterson before a justice of the peace of Lamar county, charging them with having stolen “one female hog of the value of seven dollars.” The appellant here was convicted in the circuit court of a “trespass less' than larceny,” for which he was fined twenty-five dollars by the circuit judge, and from which judgment this appeal is prosecuted.

The testimony in the case shows that the “female hog” in question was found by Jesse Husbands and Joe Peterson in the cornfield of Peterson eating the corn, and that at the request of Peterson the appellant helped him catch the hog and put it in a pen at Peterson’s house. Lige Cooley, who had the custody of the hog, was notified that Peterson had the hog up and to come over and pay for the keeping of the hog. Peterson at first wanted Cooley to pay him a dollar, but later on agreed to take fifty cents. It seems, however, that Cooley was not willing to pay anything for the hog, and finally Peterson sold the hog to the appellant here for fifty cents, and the appellant moved the hog to his pen. Appellant also offered to turn the hog over to Cooley upon payment of fifty cents, but Cooley was not willing to pay this amount. Cooley then made affidavit against Peterson and Husbands for stealing the hog. The appellant was evidently convicted under section 1264 of the Code of 1906. In this case, however, there was nothing wrongful in the taking up of the hog, and the record further shows that the appellant and Peterson took the same up in good faith, believing that they had a right to do so. The case is therefore reversed, and the appellant discharged.

Reversed.