Thomas v. State

ANDERSON, J.

The motion in arrest of judgment and the ruling thereon must be shown in the record proper, and cannot be reviewed when shown only in the bill of exceptions. —Hampton v. State, 133 Ala. 180 , 32 South. 230 .

It is insisted, however, that the failure of the affidavit to aver the value of the animal killed or injured, or the amount of the injury, renderéd it void, inasmuch as the fine is fixed according to the value, and that, if the affidavit is void, it will not support a conviction. If the affidavit is void, it will not support a conviction, and this court would have to take the point ex mero motu.— *42 Dunklin v. State, 134 Ala. 195 , 32 South. 666 ; Hornsby v. State, 94 Ala. 63 , 10 South. 522 ; Francois v. State, 20 Ala. 83 . But this affidavit is not void, as it complies with form No. 71 in section 7161 of the Code of 1907, the section under which it was made. Sections 7132 and 7161 make the Code form as to indictments sufficient, and the lawmakers did not intend that an affidavit should be more extensive or particular than an indictment.

We are aware of the fact that an indictment pretermitting an averment of value was condemned in the Dunklin Case, supra,; but there was no form in the Code of 1896 for the wrongful or wanton killing or injury of an animal covered by section 5091 of the Code of 1896. There was a form.for malicious injury, under section 5090 of the Code of 1896, but none for section 5091. These two sections now consitute section 6230 of the Code of 1907, and as to which a form of indictment is given; and as the affidavit in the present case was made subject to the Code of 1907, it was sufficient.

The judgment of the city court is affirmed.

Simpson, McClellan, and Mayfield, JJ., concur.