The appellant was convicted for a failure to dip cattle in accordance with the Tick Eradication Law approved February 7, 1919 (Acts 1919, p. 29). The case originated in the county court, and an appeal was taken to the circuit court. The demurrers filed in the circuit court cannot be considered here, for the reason that they purport to be filed to the affidavit and warrant, which affidavit was not filed in the circuit court, but the record shows that the solicitor filed a complaint in the circuit court, and that the trial was on this complaint. While the demurrers were filed in the circuit court, and bear date of filing January 20, 1920, the complaint was not filed until January 21, 1920, and the record does not show the filing of any demurrers after the filing of the complaint. Warble v. Sulzberger, 185 Ala. 603. 64 So. 316; B. R., L. P. Co. v. Fox, 174 Ala. 657, 56 So. 1013.
There was no reversible error in refusing to permit the defendant to show that the inspector had permitted other persons to wash their cattle in the solution, rather than require them to dip. George Patterson v. State, ante, p. 55,88 So. 360.
The witness Shirey, after stating that he knew the defendant, said: "I served him with a dipping notice." No question is set out which called for this answer, but after the above answer was made the defendant objected to the question, whatever that was. He was then asked by the state, "Just how did you prepare those written notices?" Objection was made, on the ground that the notice was the best evidence. The witness was allowed to answer, and stated that he "had a form of dipping notices, a form I had to fill out myself". In overruling the objection of the defendant there was no reversible error, as it does not appear that this had reference to the particular notice served on the defendant, but generally as to how they were prepared.
The witness then testified that he kept a stub of the notice. He was then shown a stub, and asked if it was a stub of the notice served on the defendant. The record does not show that the defendant objected to the question, but that he excepted, on certain grounds; that is, that the notice is the best evidence, and until the original was accounted for there could be no secondary evidence. it was certainly permissible for the witness to testify that it was a stub of the notice, and this was not proving the contents of the notice any more than that the notice, if introduced, would have proved the contents of the stub. The state then asked the witness, "Does that stub show the date April 16, 1919, upon which notice was served?" The defendant objected, on the ground that the notice was the best evidence, and the stub is inadmissible. These were not good grounds of objection. We fail to see how the notice would be the best evidence of the contents of the stub. The record then recites that the stub was offered in evidence, but it nowhere appears what the contents of *Page 130 the same was, and the ruling of the court for this reason will not be held error. The witness was then allowed to testify over the objection of the defendant that the stub was correct at the time he made it, and in so doing there was no reversible error. The witness was then asked if he had a form of the same notice as he gave the defendant, and he answered, "Yes," the question being objected to, and a motion made to exclude the answer. The question was then asked, " Is the notice you gave the defendant just like this one except the writing part?" and he answered, " Yes, sir." This question was also objected to, and motion made to exclude the answer. We cannot say there was any reversible error in these rulings, for the reason that neither the form nor the notice inquired about are set out in the record, nor is it shown that either was ever offered in evidence. When the witness was asked "Which one of the stubs in the back is it you say you have Nailer the original of?" he answered, "This one right here." The defendant then objected to the testimony because "the stub is written C.T. Nailler," and because the stub was different from the original notice. The objection being overruled, the defendant reserved an exception. As stated before, the trial court cannot be placed in error on account of such ruling, as neither the stub nor the original notice are copied into the record. But, assuming there was error in the several rulings of the trial court in reference to the testing of the stub, its date, and its comparison to the notice served on the defendant, these could not benefit the defendant, as they are clearly without injury to him. These facts stand uncontradicted in evidence, in regard to notice to the defendant to dip his cow. The witness Shirey testified:
"I served him with a dipping notice." "I gave the notice to the defendant;" that he was in Boaz when he wrote the notice; that the defendant was in a garage when he served the notice on him; that at the time he served the notice on the defendant they passed a few words, and that he laid the notice in his lap; "that he notified the defendant on the 16th, that the dipping day was the 17th at Boaz vat and the 18th at Bailey vat."
John Lewis, a witness for the state, testified in regard to the notice:
"That he had a conversation with the defendant before the prosecution and after the notice was served, and the defendant said he had the cow in his possession when the notice was served," and that he contracted to sell the cow after "the notice was served."
On this question the defendant testified:
That he knew the witness Shirey; "that he remembers the time when he came to the garage in Boaz and gave him a notice of some kind about dipping a cow. That he had a conversation when he delivered the paper, in which he said I had to dip my cow fourteen times; * * * that he did not read the notice; that the next day was dipping day at Boaz vat, and the next day at Bailey vat;" that he immediately got in his car and went and sold the cow; "that this was on the 16th, and within an hour after the notice was given him;" that he owned the cow the day notice was served.
This appears to be all there is in the record in regard to the notice, and to my mind sufficiently established the fact that sufficient notice was served on the defendant as required by law; in fact that does not appear to have been a question in the trial court, and is in effect assumed as a fact in counsel's brief for appellant, the serious insistence here being not that notice was not given, but that the defendant had absolved himself from liability to dip by an agreement "after notice" to sell the cow, which sale was afterwards consummated. I am not yet willing to commit myself to the proposition that, by disposing of his cow after notice to dip, the other facts being shown — possession at the time of service of notice, and this possession or ownership in a tick-infested district — the defendant can absolve himself from liability to dip by a sale, thereafter; certainly not such a sale, as is shown by the facts in this record, one admittedly for the purpose of evading the provision of the act, and a sacrifice of his property rather than comply with the provisions of a reasonable police regulation and in the face of that provision in section 5 of the act, which says:
"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"
— and the further provisions in section 15:
"That each failure to dip quarantined animals after receiving legal notice shall be a misdemeanor. Each movement of quarantined animals without a permit from an inspector shall be a misdemeanor."
It is not, however, necessary to anticipate this question in the case at issue, for it appears from the testimony that the defendant was in the possession of the cow on the 17th, one of the dates upon which he was required to dip her, and this in a tick-infested area, and that he failed to dip her. And, these things being so, there is, in my opinion, no doubt of the correctness of the action of the trial court in giving the affirmative charge for the state, and therefore that the judgment appealed from should be affirmed. *Page 131