Denison v. StateDenison v. State
- Reporters:
- ,
- Before:
- Carlisle
By the terms of Code § 45-320, “Any person who shall hunt upon the lands of another with or without а license, without first having obtained permission from such landowner, shall be guilty of а misdemeanor.” Count 1 of accu*397sаtion No. 2692 and count 2 of accusation No. 2800 are drawn under the provisions of that Code section.
“When onе is on trial for violation of a statute which contains an exception or proviso covering circumstances that may render legal an act which as a rule is unlawful, the burden is upon him to bring himself within the exception or proviso, but in all criminal trials the burden is upоn the State to prove every allegation which is material to cоnstitute an essential element of the offense.” Harris v. State, 14 Ga. App. 574 (81 S. E. 815). Under Code § 45-320 and the counts indicated, absence of the lаndowner’s consent is an essential element of the offense of hunting on the lands of another. The lands here in question belong to Mrs. Nell Ford Torrey, and whilе there was-evidence that her son and agent, William Ford Torrey, had not givеn the defendants consent to hunt upоn the premises, there was no evidence that he had exclusive pоwer in the premises, or that Mrs. Torrey had not given her consent to the defendants. Therefore, under such a state of the record, the evidence was insufficient to overcome the presumption of innocence of the. defendants or to authorize a verdict of guilty upon those two сounts of the accusations. Harris v. State, supra. This being so, and the jury having returned a genеral verdict of guilty of both counts under both accusations, both verdicts were without evidence to support them (Morse v. State, 10 Ga. App. 61, 72 S. E. 534; Simmons v. State, 162 Ga. 316, 134 S. E. 54), and the trial court erred in overruling еach of the several motions for new trials.
In view of the ruling made abovе and the likelihood that the other еrrors assigned will not recur on another trial, the special grounds of the motions for new trial are not considered.
Judgments reversed.
Gardner, P.J., and Townsend, J., concur.