Nailer v. State

SAMFORD, J. The defendant was charged by affidavit and complaint with having violated section 5 of an act of the Legislature approved February 7, 1919 (Acts 1919, p. 30), which reads as follows: “That every person, firm, company or corporation having in possession or in charge as owner, agent or otherwise one or more cattle in a tick-infested or quarantined county or on a tick-infested or quarantined premise, range, farm or pasture, that has not been released from state and federal quarantine, shall dip the cattle regularly once every two weeks on the day and at the vat specified by the inspector in charge of the vat most convenient or nearest to the cattle. One printed or written dipping notice, given by the inspector to the person or persons in charge of or in possession of the cattle, shall be legally sufficient to require the owner, agent, firm or person in charge to dip the cattle regularly every two weeks until released from quarantine.” [1-4] The prosecution originated in the county court, and on conviction in that court the defendant appealed to the circuit court, where, as required by statute, the solicitor filed a complaint as required by statute. Code 1907, § 6730. This complaint when filed becomes the charge against the defendant, based, of course, upon the original affidavit. If the affidavit is not absolutely void, the complaint is amendable so as to cure any inaccuracies or irregularities. Miles v. State, 94 Ala. 106, 11 South. 403. The.plea or demurrer of defendant is to the complaint as filed by the' solicitor, and not to the original affidavit, unless the original affidavit is void and charges no offense, in which event the motion should be to quash. Moneyhan v. State, 15 Ala. App. 482, 73 South. 900. In this case the record fails to disclose any demurrer filed to the complaint, and hence this court will not piass upon an insistence that a demurrer to the complaint should have been sustained. [5, 6] On the trial of the case the court, over the timely objection and exception of the defendant, permitted the state to introduce a stub dated April 16, 1919, which the witness stated showed the date upon which the notice was served. The state’s witness Shirey was also allowed to testify, over the timely objection and exceptions of defendant, in a general way and to the conclusion that he, as inspector, had served a notice to dip on the defendant. But as to what the notice contained the record is silent, there being no copy of the notice in the record and no testimony even of a secondary nature establishing its contents, except the conclusion of the witness that it was “a notice to dip.” It was competent for the inspector to testify that he had served the defendant with a notice, but as to its contents it is a rule well established that secondary evidence of the contents of a writing is not admissible until a proper predicate has been laid. Bell v. State, 156 Ala. 76, 47 South. 242; Kirkland v. State, 141 Ala. 45, 37 South. 352. There was also some testimony as to a conversation between the defendant and the inspector relative to when, where, and how the cow was to be dipped. This evidence was not admissible to prove the contents of the notice for the lack of a predicate, and for any other purpose it was immaterial. The statute requires the notice to be given in writing. Such writing determines defendant’s liability, and the defendant is entitled to be confronted with the writing, or, in case of loss or destruction, with evidence of its contents, that the court in the. first place may pass upon its sufficiency, and the jury in the next place may say whether, in accordance with the notice, the defendant is guilty or innocent. [7, 8] It is true the defendant, while testifying as a witness, said: “He remembers the time when he (the inspector) came to the garage in Boaz and gave Mm a notice of some kind about dipping a cow.” But this statement cannot be construed into a waiver of proof of the contents of the notice. A written notice was the basis of the prosecution, and nothing short of the notice or legal evidence establishing its contents will justify a conviction. If the complaint had been demurred to, assigning proper grounds, the demurrer would have been sustained, unless the complaint alleged in effect, besides the formal averments, that the defendant, having in his possession or charge as owner, agent, or otherwise, a cow in a tick-infested or quarantined county or tick-infested or quarantined premise, range, farm, or pasture that had not been released from state and federal quarantine, failed to dip such cow regularly once every two weeks as required by law on the day and at the vat most, convenient or nearest to the cow, as he had been notified in writing to do by the inspector in charge of said district. Miles v. State, 94 Ala. 106, 11 South. 403. [9] The notice given, being the basis of the prosecution, must substantially conform to the requirements of. the statute before a conviction can be had, and the defendant is entitled to have such notice passed upon and construed by the court before he is required to offer evidence in his defense. The statute is penal, and must be strictly construed, and a defendant charged with its violation must be tried according to the forms of law. It is bad enough that, in the exercise of the police power, the trend of legislative enactment is toward the establishment of “bu *129 roaucracy”; but it would be fair worse if tlio courts, in the prosecution arising under these laws, should allow the agents of the governments to substitute their conclusions for legal evidence and their judgments for the verdicts of juries. There is no legal evidence in this record establishing the contents of the notice necessary to have been given' to the defendant as a condition precedent to the requirement that he dip his cow, as required by the statute, and the several rulings of the court not in conformity to the views hereinabove expressed are errors necessitating a reversal of this case. [10] It is perhaps unnecessary to pass upon the other questions presented by the record, but, as the cause must be tried again, it may be that a further construction of the statute may be of value. If the evidence shows beyond a reasonable doubt a notice in writing served on the defendant, which notice conforms to the requirements of the statute, and it appears from the evidence that the defendant was, on the date named in the notice at which he was required to dip, the owner, or in charge of the cow, either as owner or agent or otherwise, in a tick-infested or quarantined premise, range, farm, or pasture that had not been legally released from quarantine, and the* defendant failed or refused to dip said cow in conformity to said notice, he would be guilty, under section 5 of Acts 1919, p. 30, supra. We do not think that the obligation to dip becomes penal unless, on the date upon which the defendant is required to dip, he is the owner or in possession or. control of the cow. The act itself, as a valid exercise of the police power, has been upheld by our Supreme Court. Dodd v. Commission Court, 203 Ala. 271, 82 South. 521. But nowhere in the act is it provided that a sale of cattle may not be made; and if, in the exercise of the right to sell, a party has sold and disposed of the cattle he has been notified to dip, no criminal liability to dip continues on him. We may also add that neither the affidavit upon which the complaint is based nor the complaint as filed charges, even in the most informal way, that notice to dip was ever given to the defendant, and it is only the very liberal construction given to affidavits that saves the affidavit from the claim that it charges no offense known to the law. Eor the error pointed out, the judgment is reversed, and the cause is remanded. Reversed and remanded. BRICKEN, P. X, and SAMFORD, J., concur. Footnotes [1] <§=For other eases see same topic and KEY-NUMBER in an Key-Numbered Digests and Indexes