120 Ga. 199 | Ga. | 1904
The indictment charged that the accused did, on a named day, “ willfully and maliciously injure and destroy a certain bridge on a private road leading from Bolding’s Bridge and Bark Camp to the Rocky Ford road, said bridge being the property of I). M. McKinney, William Grant, W. R. Smith, and J. T. McKinney.” On the trial it appeared from the evidence* that the bridge had been built at the place named by the parties who were alleged in the indictment as its owners, but that at the time of its destruction the road was used by I). M. McKinney, T. L. Robinson, Wm. A. Latham, and Dr. McKinney; that it was used for a mill road, and as a nearer way by which the parties named could go to church; that this private road had been located approximately where it was at the time of the trial for more than twenty years, and that it had been maintained at that place for about five years prior to the time the indictment was returned. The land upon which the bridge was built did not belong to the parties who built it and who were alleged to be its owners, but the owner of
The indictment was based on the Penal Code, §729, which provides: “All other acts of willful and malicious mischief, in the injuring or destroying any other public or private property not herein enumerated, shall be misdemeanors.” As has been seen, it was alleged that the bridge in question was “ the property of D. M. McKinney, William Grant, W. R. Smith, and J. T. McKinney.” The evidence showed that the bridge was built by these parties, but that it was used by a community of persons other than those named as owners. Prom the evidence as. a whole it appears that the road was a way used by certain persons in the community as a convenience for going to church and to mill. The bridge which the accused was charged with having destroyed was built on the land of another, who had nothing to do with its erection. It was in no sense the private property of its builders." They were not in possession of it. Under the laws governing private ways,' they may have had the right to travel on the road and to cross the bridge, but neither.could be said to be their property. The State having alleged private ownership of the bridge iu the four parties named in the indictment, it was necessary, before the accused could be legally convicted, to prove that they
Judgment reversed.