
    The State, Respondent, vs. Williams, Appellant.
    1. Under the amendatory act of 1841, the taker up of a stray steer is not required to take the same before a justice of the peace, as required by the act of 1845, concerning “strays.”
    
      Error to Polk Circuit Court.
    
    
      P. R. Hayden, for plaintiff in error.
    The indictment does not charge the defendant with any indictable offence. The act of 1845 is repealed by the act of 1847, so far as relates to the matter charged m the indictment.
    
      Gardenhire, (attorney general,) for the state.
   Ryland, Judge,

delivered the opinion of the court.

At the April term of the Circuit Court within and for the cJfonty of Polk, in the year of our Lord eighteen hundred and fifty-three, the defendant, William Williams, was indicted by the grand jury. The indictment charges that the defendant, at, &c., on, &c., did then and there take up a stray, to-wit, one stray steer, which was not then and there claimed and proved within five days from the day of taking up the same ; and that said defendant did not, within five days from the day of taking up said stray, take the said steer before a justice of the peace, &c., and make oath that said steer was taken up on his plantation, and that the marks and brands had not been since altered to his knowledge, but sold the same, contrary, &c. The defendant was tried on this indictment and found guilty, and fined twenty dollars. He moved in arrest of judgment, alleging the insufficiency of the indictment; this motion being overruled, he excepted, and sued out his writ of error, and brings the case to this court.

The indictment in this case is framed on the fourth section of the act concerning “ strays,” (R. O. 1845, p. 1039,) which is in these words : “If any person take up any stray of any kind, and it be not claimed and proved, he shall, within five days, take it before a justice of the peace of the county, and make oath that it was taken up on his plantation, and that the marks and brands have not been since altered, to his knowledge.”

This fourth section of the act concerning strays, in the Revised Codo oí; 1845, was changed by the act of 1847, amendatory of the stray law of 1845. This last act, that is, the act of 1847, is as follows : Section 1. “That so much cf the fourth section of the act concerning strays, of 1845, as requires a taker up to take strays before a justice of the peace, shall not be so construed as to compel the taker up to take any hogs, cattle, sheep, goat or other unbroke animal, before a justice of the peace.” Section 2. “ But the taker up may get two disinterested householders to view and appraise the stray or strays, who shall go before some justice of the peace and take an oath, as required by the sixth section of the act of 1845.” The third section repeals all conflicting acts or paito of acts.

The stray mentioned in this indictment is a steer ; it is such an animal as is included in this amendatory act — such an animal as the taker up is not required to take before a justice of the peace. The indictment, then, charges the defendant with the omission to do an act which is not required by law to be done; the failure, therefore, is no offence.

In the opinion of this court, the sale of the stray, to be punishable under the 29th section of the act of 1845, must be alleged to be before the title was vested in the taker up. The indictment, therefore, in this case, shows no offence; it will not support the conviction. The judgment below ought to have been arrested.

The judgment of the Circuit Court is, with the concurrence of the other judges, reversed.  