Newby v. State

108 So. 272, 21 Ala. App. 353, 1926 Ala. App. LEXIS 127

• Court: Alabama Court of Appeals
• Decided: April 13, 1926
• Docket: 8 Div. 320.
• Status: Published

Opinion

SAMFORD, J.

There does not appear in this record a brief statement of the cause of complaint signed by the solicitor or a waiver thereof by the defendant such as is required by section 3843 of the Code 1923. For this reason the judgment in this case must be reversed. Owens v. State, 99 So. 155, 19 Ala. App. 573.

Section 4062 of the Code of 1923 makes it unlawful and fixes a penalty for any person to take, catch, or kill any fish in any of the waters of this state by means of any seine, trammel net, gill net, fish trap, or by any other means other than by ordinary hook and line, gig, spear, or trot-line. Section 4063, Code 1923, makes certain exceptions. The rule is that, when the exception is set out in a separate clause or section from that creating and defining the offense, it is not necessary to negative the exception by averment. Clark v. State, 19 Ala. 552; Carson v. State, 69 Ala. 235; Grattan v. State, 71 Ala. 344; Hyde v. State, 46 So. 489, 155 Ala. 133; McLeod v. State, 62 So. 991, 8 Ala. App. 329.

The exceptions provided for in section 4063 place a limitation on the preceding section, and, before a conviction can be had under section 4062, the burden is upon the state to show by the evidence that in catching fish the defendant was not within the exception, but was in fact violating a law of the state.

The facts necessary to prove the corpus delicti as well as the guilt of defendant may be by circumstantial evidence, which in this case was sufficient to sustain the court in his finding, but, for the error in the record, the judgment is reversed, and the cause is remanded.

Reversed and remanded.