People v. Martin

By the Court : It is charged in the indictment that the defendants “ did then ■and there willfully and feloniously take up and drive from the lands then and there not their own the cattle of Louis Marie, for the purpose of taking advantage of an Act of the Legislature of the State of California entitled 1 An Act to protect agricul[203]ture, and to prevent the trespassing of animals upon private property, in the Counties of Fresno, Tulare, Kern, Ventura, Santa Barbara, San Luis Obispo, and Monterey, approved February 4th, a. D. 1874, the land on which said Martin, Donelly, and Anthony took up said cattle being then and there in the possession and occupancy of the said Louis Marie.” The defendant Martin having been found guilty as charged in the indictment, moved in arrest of judgment, on the ground, among others, that the facts stated in the indictment did not constitute a public offense.

The seventh section of the above entitled act provides that any person who “ shall take up any such animal or animals on any land or possessory claim other than his own, for the purpose of taking advantage of any of the provisions of this act, shall be deemed guilty of a felony.” The act contains many provisions, and it is scarcely conceivable that a person would take up animals for the purpose of “ taking advantage ” of all of those provisions. The substance of the offense defined in the act is the wrongful and felonious intent with which the animals are taken up, or driven away, and the indictment, therefore, should state the intent—in other words, the particular provision of the act which the person taking up the animals intended to take advantage of. In the absence of an averment to that effect, the defendant is not informed by the indictment of the offense for which he is to be tried.

Judgment reversed and cause remanded, with directions to sustain the motion in arrest of judgment.