Opinion
8 Div. 781.
February 28, 1933.
Appeal from Law and Equity Court, Lauderdale County; Orlan B. Hill, Judge.
Will Phillips was convicted of cruelty to an animal, and he appeals.
Affirmed.
The indictment is as follows: "The grand jury of said county charge that, before the finding of this indictment, Will Phillips unlawfully, wantonly, or maliciously killed, disabled, disfigured or injured a dog, the property of Lando P. Ritter, contrary to law against the peace and dignity of the State of Alabama."
Defendant's demurrer to the indictment was upon the following grounds:
"1. Said indictment charges no offense known to the law.
"2. Because the indictment charges in the alternative that the defendant killed a dog, the property of Lando P. Ritter and each alternative averment charges no offense known to the law.
"3. The indictment charges in the alternative that the defendant unlawfully, wantonly or maliciously killed a dog, the property of Lando P. Ritter, and each alternative averment fails to charge an offense known to the law.
"4. The indictment charges in the alternative that the defendant unlawfully, wantonly or maliciously killed a dog, the property of Lando P. Ritter, and by the Statute, Section 3216 of the Code of Alabama, 1923, it is not a violation of the law to wantonly kill a dog."
This demurrer was overruled.
From the judgment entry it appears that the state elected to prosecute under section 3212 of the Code, after which the defendant refiled the original demurrer with these additional grounds:
"5. Because the indictment fails to allege fully the injury to the dog.
"6. Because said indictment fails to allege that the defendant unlawfully or maliciously killed or disabled defendant's dog or injured any dog the property of another without good excuse."
The court overruled these additional grounds of demurrer to the indictment.
C. P. Almon, of Florence, for appellant.
When offenses are of the same character and subject to the same punishment, the defendant may be charged with the commission of either in the same count, in the alternative; and also, when the offense may be committed by different means and with different intents, same may be alleged in the same count in the alternative. However, when so charged, in the alternative, each alternative must state a complete offense under the law. Code 1923, §§ 4544, 4546; Mays v. State, 89 Ala. 37, 8 So. 28; Hornsby v. State, 94 Ala. 55, 10 So. 522; Griffin v. State, 22 Ala. App. 370, 115 So. 769; Abercrombie v. State, 8 Ala. App. 324, 62 So. 966. The alternative averment that defendant wantonly killed a dog, standing alone, charged no offense under the law of Alabama. Code 1923, § 3216. Prior to the enactment of section 3216 of the Code, it was not an offense to maliciously kill, disable, or disfigure a dog. Kershaw v. McKown, 12 Ala. App. 485, 68 So. 559. But, even if it be held that a dog was an animal within the purview of section 3212, section 3216, being a statute relating specially to dogs, must be considered as an exception to the general statute, section 3212. Birmingham v. So. Ex. Co., 164 Ala. 538, 51 So. 159; State ex rel. v. White, 160 Ala. 171, 49 So. 78; 6 Mayfields' Dig. p. 24, § 3. There is no Code form for an indictment under section 3216, and an indictment thereunder must follow the statute. The word "wantonly" as used in this indictment is not a substitute for "maliciously" or some other word used in the statute, but is added, making the indictment bad.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
If the indictment was drawn under section 3212 of the Code, the demurrer was properly overruled, since it was in Code form. Code 1923, § 4556 (71). Section 3212 provides for general offenses concerning any animal. A dog is an animal within the purview of that statute. Sections 3212 and 3216 are to be construed in pari materia. The state may elect to prosecute under either statute. But, assuming that section 3212 does not apply to dogs, still the demurrer was properly overruled. The use of the word "wantonly" in the indictment does not render it bad; it being more than the equivalent of "maliciously." The greater includes the less. Richmond v. State, 4 Ala. App. 139, 58 So. 973; Jinright v. State, 220 Ala. 268, 125 So. 606. Nor is the indictment bad for failure to include the words "without good excuse."
We see nothing in the provisions, etc., of Code 1923, § 3216, that prevents the continued and effectual operation of the provisions of Code 1923, § 3212.
This appellant was prosecuted under the provisions of the statute last named; the indictment against him was in the form prescribed by the Code. The demurrers thereto were properly overruled. Code 1923, §§ 3212, 4556 (form 71), 4527.
No bill of exceptions is contained in the record. No other question is apparent.
The judgment of conviction is affirmed.
Affirmed.