56 S.E.2d 297 | Ga. Ct. App. | 1949
The evidence demanded the finding that the defendant was not justified in killing the plaintiff's dog. Any errors in the court's charge were therefore harmless.
On being called by the plaintiff for the purpose of cross-examination, the defendant testified: "I have a good many white face cows and a good many hogs. Yes, I killed Mr. Shockley's dog for the reason that it had been killing my pigs." In his own behalf, on direct examination, the defendant testified: "Yes, I shot at that same dog earlier the same day but he got away. That afternoon I saw him on my property and he was trying to scratch under the fence, the hog wire. My cows were also dropping calves in that pasture. When I shot at this dog earlier on the same day that I killed him he had one of my pigs by the neck. I shot at him with a rifle but missed him and then in late afternoon I saw the same dog trying to get back in the pasture where my pigs and calves were and I killed him. . . This dog was on my property when I shot him but I can't say whether or not he had ever killed any of my pigs but that morning he had one of my pigs down; I saw that." The defendant first stated that he killed the dog because it had been killing his pigs. Later he stated that he could not say whether or not the dog had ever killed any of his pigs, but that the dog had one of the pigs down by the neck on the day in question. At the time of the killing the dog was not molesting the defendant's pigs or calves but was only trying to gain entrance to the defendant's *457 land by digging under the fence. The defendant's evidence does not show that there was such an urgent necessity for protecting his property as would justify the killing of the dog, especially when no less drastic measures were first attempted. The evidence demanded a finding that the defendant was not justified in killing the plaintiff's dog. In this view the trial court's failure to charge the law on justification was harmless error.
The Superior Court of DeKalb County did not err in overruling the certiorari.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.