16 Ga. App. 136 | Ga. Ct. App. | 1915
King Horsely was convicted of a violation of section 217 of the Penal Code, which is as follows: “If any person shall willfully enter, go upon, or pass over .any field, orchard, garden, or other inclosed or cultivated land of another, after being personally forbidden so to do by the owner or person entitled to the possession for the time being, or authorized agent thereof, he shall be guilty of a misdemeanor. The evidence was in substance as follows: J. A. Nolan, the prosecutor, testified, that he owned and operated a farm known as the “J. W. Eichardson Jr. place,” in Harris district, Morgan county, Georgia; that the title to this land was in him and he cultivated the land in the year 1913, and during the summer of 1913 he forbade the defendant from going on this land; that after he forbade him from going there, he saw the defendant on that place during the fall of 1913; that he saw the defendant going through the pasture with a gun on his shoulder; that the defendant came out of a house on the place, and, in going to the pasture, passed over a little strip of land between the house and the pasture, on which had been planted during the year a crop of cotton, which was abandoned; that the defendant did not live on that place or on any other place belonging to the prosecutor, and his wife did not live there; she had lived there, but moved away dur
1. In the motion for a new trial it is contended that the court erred in the following charge to the jury: “If he personally notified the defendant not to go upon his lands, then you go further
In the next' ground of the motion for a new trial it is contended that the court erred in the following charge to the jury: “ ‘Cultivated lands” does'not mean lands upon which there are growing crops all the year round, but means lands that have grown crops on them from year to year — crops for this year for instance; and if at the end of the year there are no crops planted for another year, and the land is used generally for cultivating purposes, then under the laws of this State it would be considered cultivated
It is complained that the court erred in refusing to charge as follows: “If land is apparently abandoned and is not in cultivation at a time when a growing crop of some kind would be upon it if it were used for purposes of cultivation, then there would be a presumption that the land was not, under the law, ‘cultivated land.’ ” We think the court did not err in refusing this request. There was direct evidence, undisputed, which under the decision in the Bryce case, supra, made the strip in question “cultivated land,” within the meaning of section 217, and it was not necessary to resort to presumptions to determine the fact. The question was not to be determined either from the appearance of the land at the time or from any presumption which might arise in the mind of the defendant because of the fact that the crop planted thereon had been apparently abandoned. In the Bryce case, supra, the Supreme Court said: “If it has been used for growing crops and the owner intends to again devote it, in due season, to such use> a trespass upon it may be punished under this section.” Ordinarily no presumption in the mind of a trespasser, as to the future purpose of the owner in regard to lands upon which there was an abandoned crop, would be authorized; and yet under the ruling in the Bryce case, if the land has been used previously for growing crops “and the owner again intends to devote it, in due season, to such use,” one trespassing upon it might be punished. It would be impossible for the trespasser to determine, merely from the fact that the crop on certain land appeared to have been abandoned, that the owner did not again intend to use this particular land in due season for growing other crops. From this it seems that it is wholly immaterial whether land which had been used for growing crops and which the owner again intended to use in the same way was in such condition at the time a trespasser approached it as to raise in his mind a presumption that the land had not been used and would not again be used for farming purposes, and hence was not “cultivated land.” When a landowner (who, even in this liberal and democratic country, has some property rights) orders a trespasser to remain off his property, and in defiance of the owner’s demand he goes thereon, he acts at his peril, and should he fail to confine himself to roads and ways which he has a legal right to traverse,
2. It is argued (though it does not appear from the record that any such excuse for the presence of the defendant actually .existed) that since the defendant’s wife lived on the prosecutor’s place he was entitled to visit her there notwithstanding he had been forbidden by the owner to go upon the premises; and the case of Mitchell v. State, 12 Ga. App. 557 (77 S. E. 889), is relied upon to sustain this contention. In that case this court held, that “Where premises are rented to another, the landlord has no right, during the tenancy, to forbid a third person to go upon the rented premises for a lawful purpose with the permission of the tenant. A tenant is entitled to the undisturbed enjoyment of his possession, and the landlord has no right to exercise any control over the personnel of the tenant’s guests, or in reference to the time of their visits, so long as they are upon a lawful mission and do not infringe upon any right of the landlord. Though a woman be living separate and apart from her husband, one who has rented to her a house in which she resides has no right to forbid the husband to go upon the rented premises for the purpose of visiting his wife.” It appears, however, in the statement of facts, that the defendant in that case “was seen in the yard, within about ten feet of the house where his wife lived. There was a road leading from his house out to the public road, but the accused was never seen on any portion of this tract except in the yard near the house. The accused and his wife had separated some time before he was seen in the yard. The yard in which the accused was seen extended about ten or twelve feet in width around the house, and this yard was not in cultivation. The five-acre tract was cultivated land, but seems not to have been enclosed.” In the decision this court said: “In the first place, it was not shown that the accused entered upon any
In this case the defendant’s wife appears to have herself had no right on the premises; and if she had lived there previously .in
3. The evidence amply warranted the verdict, and no error was committed by the trial judge.
Judgment affirmed.