#### Jeremiah Swartzbaugh v. The People of the State of Illinois.

1. Indictment for hilling, wounding, etc., domestic animals. An indict, meat for malicious mischief in wounding horses, is not bad because it fails to aver that the horses were domestic animals.

2. Same—negativing proviso. An indictment under sec. 203 of the Criminal Code, for wounding, etc., of horses, need not negative the proviso by stating that they were not so wounded, maimed and disfigured by the defendant’s putting out poison to destroy sheep-killing dogs. Had the charge

*458heen in respect to dogs, it seems it would have been necessary to negative the proviso.

3. Cottvehikq- order—should appear in the record. If the transcript of the record in a criminal case fails to show any convening order of the court at the term the defendant is tried, the judgment of conviction will he reversed. It is not enough that the clerk states there was such a term.

Wbit oe Ebbob to the Circuit Court of Edwards county.

This was an indictment, in the court below, against Swartzbaugh. It is alleged in the first count, that on a certain day, at, etc., the defendant “ unlawfully, willfully and maliciously did, then and there, by shooting and cutting, wound,' maim and disfigure two bay mares, the said bay mares then and there being the property of,” etc., “then and there of the value,” etc., “ contrary to the form of the statute,” etc.

The second count alleged, that on a day named, at, etc., the defendant “ unlawfully, willfully and maliciously, did then and there wound, maim and disfigure two horses, the property of,” etc., “ then and there being, by shooting and cutting the said horses, with intent in him,” the said defendant, “ then and there, that the life of the said horses should be thereby destroyed, contrary to the form of the statute,” etc.

A trial resulted in the conviction of the defendant, and judgment was entered accordingly. He thereupon sued out this writ of error.

Messrs. Hanna & Adams, for the plaintiff in error.

Mr. Justice Walkeb

delivered the opinion of the Court:

In this case, plaintiff in error entered a motion in the court below to quash the indictment, which was overruled. A trial was had, resulting in a conviction. A motion in arrest of judgment was denied, a fine of $300 was imposed, and a judgment for the same and for the costs of the proceeding was entered, to reverse which this writ of error is prosecuted, and errors assigned on the record.

It is urged that the indictment is defective because it fails *459to aver that the horses were domestic animals. This is immaterial, as no person of the least intelligence could fail, from the indictment, to know that the charge was made under the 203d section of the Criminal Code. All know that we have none but domestic horses, and injuring them in the manner prohibited by the statute constitutes the offense. Plaintiff in error could not but have understood the charge he was called upon to defend. In this respect this indictment is sufficient, as it fully conforms to the 108th section of the Criminal Code.

It is also urged, that the proviso in the 203d section was not negatived in the indictment. To have done so in this indictment would have been entirely foreign to the case. To have averred that the horses were not so wounded, maimed and disfigured by the defendant’s putting out poison to destroy sheep-killing dogs, would have been foreign to the case. It is beyond our comprehension to understand why so unnecessary an averment should have been made. It could answer, in this ease, no possible purpose, as it would have been useless and wholly without reason, and the law can never require such absurdities. Had this been an indictment for killing, wounding or maiming dogs, then, we presume, it would have been necessary to have negatived the proviso of the section, but it has no application to horses.

It is urged that there is nowhere in the record a convening order for the April term, 1876, at which it is claimed plaintiff in error was convicted. We have examined the record filed in this case, and fail to find any such order. The transcript states, that at the April term, 1876, of the court, certain proceedings were had, amongst which was the trial and conviction of plaintiff in error. Such an order should appear, as was held in the case of Planing Mill Co. v. The City of Chicago, 56 Ill. 304. The clerk, it is true, says in the transcript, that there was an April term, but the statement is only his conclusion. The record of the court should have shown how the court was organized, and he should have copied the convening order into the transcript, that it might appear whether there was a court regularly organized. The objection is raised, and we, from an *460inspection of the transcript, are unable to say whether there was a legally organized court in session. If there was such a plaeita in the records of the case, it is singular that the State’s attorney did not procure a copy of the order, and file it with the transcript in this court, and thus have obviated the objection. °

The judgment of the court below, on the record before us, must be reversed and the cause remanded.

Judgment reversed.