Reagh v. Spann

3 Stew. 100

Opinion

By JUDGE CRENSHAW.

In argument it was contended, that the penalty was not recoverable before a previous conviction of the offence, and that the act of marking the unmarked hog of another person amounted to ■larceny.

By the 22d 'section of the ant of 1807,

a the stealing of hogs on conviction is punished by whipping and paying to the owner the value thereof, “and also a fine of £120 to any person suing for the same, to he recovered in any Court having cognizance thereof.” By the 23d section, the altering or defacing marks or brands is punished in the same manner. By the 24th section, “if any person shall be convicted of having marked or branded with his mark or brand any unmarked or unbranded horse, &c., (hogs included,) not being his own property, and without the consent of the owner, the person so offending shall forfeit, and pa37 the sum of ÍS20, for every animal so branded or marked, to be recovered and applied as aforesaid, viz: “by any person suing for the same in any Court having cognizance thereof.”"

By the two first recited sections, the Legislature has imposed the same penalties on the stealing as on the altering. '..r d.-fucirg the marks of hogs, and consequently consul-ered them as offences of the same grade, amounting to lar-cony. By the Inst section they did not intend to place the marking of unmarked hogs on the same footing with tiloso o libo ccs, because they have provided no except the forfeiture of §20, to any person suing for the same, ami because the 22d section had already provided for.the case of larceny.

The proceedings in the present case, were had under the 2d section of the act of IS 11,a wldcli is in the same language with the above recited 24th. section, with this difference only, that instead of forfeiting §20 to any person suing for the same, it shall be paid to the owner of the hog, and instead of being recoverable in any Court having cognizance thereof, it is made recoverable by action of debt before any Justice of the Peace, or in any other Court having cognizance thereof. This section therefore supersedes, and must be considered as repealing the 24th section of the act of 1807. It provides no punishment for marking an unmarked hoe;, but the forfeiture of §20 to the owner, and expressly declares that the recovery shall be by action of debt. It is clear then that it is not larceny, nor an indictable offence. Where then can be the necessity of a previous conviction, when no other punishment is affixed to the offence? Though peculiar in its phraseology,the statute must receive a legal and rational eonsirucMon. The word convicted, as expressed in the statute, must be taken to mean convicted on the trial of the penal action of debt for the recovery of the penalty, and cannot mean a previous conviction on an indictment, when no punishment is affixed to the offence, except a forfeiture to the party aggrieved. Numerous are the cases in which penal actions in the form of debt have been brought to recover the forfeiture, and that too without any previous conviction.

It was also suggested that the Justice was ousted of all jurisdiction because the offence was criminal, and he had no authority to summon a jury for the trial. If the fence had been indictable, this proposition would be true; but as the action of debt is the remedy prescribed for *he recovery of the penalty, it does not necessarily follow that the party is constitutionally entitled to a trial by jury. 4 penal action is not, in the language of the constitution, a prosecution by indictment, or information, so as to entitle the party to a trial by jury in the first instance; nor docs the phrase “due course of law” necessarily imply n trial by jury, but rather means a proceeding carried on according to the law of the land, either with or without a trial by jury. I do wish there had been a constitutional requiring this as well as every other penal of-fence to be tried by jury.

It was further insisted that the Justice.erred in not certifying the evidence. This was not necessary when the ease was to be tried da novo in the appellate Court.

The last, position of which I shall take notice is, that there is no averment in the declaration alleging that Reagh marked the hog in his marl:.

Penal laws are to be construed strictly, and in a penal action, which is in the nature of a criminal prosecution, much certainty and precision are requisite. The demand not exceeding $20, a declaration was unnecessary; but if the plaintiff will proceed to file a declaration, he must observe the rules of practice, and bring himself substantially withing the meaning and spirit of the statute. We think the omission was fatal to Ihe declaration, and cannot be aided by reference to the statute, or by looking back to the warrant, or statement of the Justice, there having been no verdict, but merely a judgment on demurrer.

I have already said that the party must be convicted on the trial of the action of debt, otherwise the party aggriev ed cannot recover. Convicted, in the statute, necessarily implies a trial on the merits, and the party’s guilt must be. made manifest either by proof or confession. The County Court therefore did err: first, in overruling the demurrer, when it should have been sustained, with leave to the plaintiff,on terms, to amend his declaration; and second, in giving final judgment for the penalty without a trial on the merits, or without proof of the party’s guilt. The judgment must be reversed, and the cause remanded.

Reversed and remanded.

Laws of Ala. 200.

Laws of Ala. 223.