Brown v. State , 120 Ala. 378 ( 1898 )

DOWDELL, J.

The defendant was indicted and convicted for the larceny of a cow. The only question reserved for review upon the trial arises out of the ruling of the court upon the sufficiency of two pleas filed by defendant, setting up a conviction for the same offense by a justice of the peace. To each of these pleas a demurrer was sustained. The sole ground of demurrer to each was, in effect, that the justice of the peace had no jurisdiction to hear and determine the guilt of the defendant and adjudge a punishment therefor, but that he could only hear and determine the question of probable cause of his guilt, and adjudge that he be committed to jail to await the action of the grand jury unless he enter into bond, or discharge him. ''

The statute makes the larceny of a cow a felony without reference to its value.—Code of 1886, § 3789; Code of 1896, § 5049.

Justices of the peace have final jurisdictiqnr.of petit larceny when the value of the commodity which is the subject of the crime does not' exceed ten dollars.—Code of 1886, § 4233; Code of 1896, § 4630; Unless the crime of petit larceny could' have been carved out of the offense with which the defendant was charged, the judgment of conviction by the justice was void. And the cases of Powell v. State, 89 Ala. 172, Moore v. State, 71 Ala. 311, and Drake v. State, 68 Ala. 511, have no application.

The larceny of a cow is not only a felony under our statute, but was so at common law.—1 Bishop New Cr. Law, 679.

So it was impossible for a lesser offense, over which the justice had jurisdiction, to be included in the charge against the defendant. The defendant was never in jeopardy, and there was no error in sustaining the demurrer to each of the pleas.

Judgment affirmed.