Gilreath v. State

96 Ga. 303 | Ga. | 1895

Atkinson, Justice.

1. To charge the commission of an indictable trespass, it is ordinaxfily not necessary to allege the value of the property injured or eonveiffed thereby. If the trespass itself amount to a larceny, then, as one of the constituents of that offense, it is essential that the value be alleged. If the animus furandi be wanting, however, .and the taking merely wrongful, it is unnecessary to .allege the value, unless that enters as an element in the definition of the offense. An illustration of this is furnished in the section of the code we now have under review, viz. section 4440. Paragraphs 1, 3 and 4 of that section presci’ibe that the several acts thei’ein enumerated shall constitute an indictable trespass, without alleging the value of the article injured or the extent of the •damage to the owner. Paragraph 2 of that section, while defining a trespass, creates in effect a species of larceny, -which is a kind of accession to the common law definition of that offense, and without constituting the taking and carrying away of the articles therein enumerated a specific larceny, denominates the taking and carrying away of such articles from the lands of another as an indictable trespass, requiring as a condition only that the articles should be of some value. We therefore reach the conclusion that the value is necessary to be stated and proven as one of the constituents of the offense. It is easy to imagine how timber, wood, rails, fruit, vegetables, corn and even cotton, the very articles enumerated, because of some peculiar condition or characteristic of the article, might be wholly without value to the owner and without any market value whatever ; and the legislature did not intend to make that an indictable trespass which one might commit upon the land of another by detaching and carrying away therefrom these enumerated articles, unless they he of some such value as to injure the owner. In the definition itself of this offense a value is stated as one of its constituent elements.

2. As will be seen from the report, the defendant was indicted, jointly with certain other persons, for the offense of willfully taking and carrying away from the lands of the prosecutor certain rails, the property of the prosecutor, without the consent of the prosecutor. It appears that the prosecutor and the father of this defendant owned adjoining tracts of land; that they had agreed upon a dividing line between them, and upon this dividing line had constructed a rail-fence. This fence was the joint property of the parent of this defendant (by whose authority he removed the rails), and of the prosecutor. We think, in order to constitute an indictable trespass, the alleged owner of the property must have the absolute individual title thereto, or there must he some special title in him through and by which he is authorized to hold the exclusive possession of the property. Each of these coterminous proprietors was entitled to the full and ample use of this joint property, and when one of them took and carried away a portion -of it, it could not be ascertained legally that he took and carried away property other than his own, and therefore it cannot be said to have been taken and carried away without the consent of the owner. We think this case is controlled by the principle declared in Padgett v. The State, 81 Ga. 466; and while this defendant and his parent may be answerable civilly for any damage which may result to the prosecutor for a breach of covenant to maintain the joint fence, we do not think that the defendant was subject to indictment under this section of the code. This construction of statutes prohibiting trespasses of like character seems to have obtained in other States where similar laws prevail. Drees v. The State, 37 Ark. 122; Freeman on Cotenancy, section 97a.

The two propositions here ruled control the questions made in the court below,and it is unnecessary to consider any others which may occur in the record.

Let the judgment of the court below be Peversea.