712 MCKINNEY V. STATE. [215 MCKINNEY V. STATE. 4570 223 S. W. 2d 185 Opinion delivered October 3, 1949. 1. CRIMINAL LAW—PLEA OF FORMER JEoPARDY.—Where appellant was arrested on a charge of having willfully and wantonly killed hogs belonging to E, carried before Municipal Court where another man was tried first on a similar charge resulting in a holding that no offense had been committed whereupon the case against appellant was dismissed, appellant's plea of former jeopardy made at the trial on an information later filed in the circuit court was properly overruled. 2. CRIMINAL LAW—FORMER JEoPARDY.—The state's dismissal of a case before the trial begins does not prevent a subsequent prosecution. 3. CRIMINAL LAW—SUFFICIENCY OF EVIDENCE.—The jury were warranted in believing that appellant shot the hogs on the day • following their escape from their owner without having made a sufficient effort to discover their owner or to remove them from • his corn field by less drastic means. 4. CRIMINAL LAW.—Contentions that were not so presented to the trial court as to enable the appellate court to consider them are without merit on appeal.
ARK.] MCKINNEY V. STATE. 713 5. CRIMINAL LAW-INSTRUCTION5.-If appellant wished to have his theory of the case presented to the jury it was his duty to submit an instruction embodying his view • of the law, and not having done so, he cannot on appeal, question the action of the trial court. Appeal from Independence Circuit Court; S. M. Bone, Judge ; affirmed. R. W. Tucker, for appellant. Ike Murry, Attorney General and Jeff Duty, Assistant Attorney General, for appellee. GEORGE ROSE SMITH, J. By information the appellant was charged with maliciously, willfully and wantonly killing five hogs and wounding three more, all owned by W. D. Elms. The jury imposed a fine and assessed the amount of damages, the court entering judgment in favor of Elms for treble damages as authorized by statute. Ark. Stats. (1947), §§ 41-403 and 41-405. Appellant contends that his plea of former jeopardy should have been sustained. Soon after the incident ap-nollawf T7O rraci-orl anci 1-ric pa co an+ frvr fhe municipal court A similar charge against another man was tried first, however, and the municipal judge ruled that no offense had been committed. The prosecuting attorney then entered a nolle prosequi as to this appellant and later filed the present information in the circuit court. These facts do not establish former jeopardy, for the State's dismissal of a case before the trial has begun does not prevent a subsequent prosecution. Miller on Criminal Law, § 186. On the merits there was conflicting testimony as to. whether the killings were malicious, willful or wanton. Elms testified that the hogs had never escaped before and were at his barn on Sunday afternoon. This testimony was corroborated by Amos Webb. The animals were missed that night and were killed the next day in appellant's corn field, about two and a half miles away. Appellant's testimony was to the effect that the hogs had been in his cornfield for at least ten days, that he was unable to learn the identity of their owner, and
714 [215 that he finally killed two of them in order to prevent further damage to his crop. A deputy sheriff quoted appellant as having ' • said that he was ready to go down and shoot the rest of them if they were in his field. We think the jury were warranted in believing that the hogs escaped on Simday and that appellant shot them on the following day without having made a sufficient effort to discover their owner or to remove them by less drastic means. Appellant's remaining contentions were not so presented to the trial court as to enable us to consider them. The court, without objection by the appellant, instructed the jury in the language of the statute. Appellant offered an instruction based on Ark, Stats. (1947), § 78-- 1143, but did not save an exception to the court's refusal to give the requested charge. Finally, it is urged that the trial court proceeded upon the erroneous assumption that appellant was required to fence his corn-field against trespassing animals. To the extent that this question was involved in rulings upon the admissibility of evidence as to the condition of the fences, appellant's failure tO except to the court's action precludes his raising the issue here. And if he wished to have his theory presented to the jury it was his duty to submit an instruction embodying his view of the law. Lucius v. State, 116 Ark. 260, 170 S. W. 1016. Not having done so, he cannot now question the action of the court below. Affirmed.
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