6 Ga. App. 541 | Ga. Ct. App. | 1909
The plaintiff in error was convicted of a violation of that portion of section 566 of the Penal Code which reads as follows : “If any person . . shall break a pound and release an animal which has been legally impounded or estrayed, without having first paid all damages that may have been incurred, he shall be punished as for a misdemeanor,” etc. The evidence, briefly stated, is as follows: Four of the defendant’s cows had gotten out of her pasture, which was enclosed by a barbed-wire fence, and were committing depredations on an oat field of the prosecutor, who thereupon impounded them and notified the defendant of the fact. She, in company with her son and a servant, went over to make an inves
The statute under which the indictment was framed requires that there shall be no unnecessary or vexatious taking up and impounding of any animal, but that the animal shall be legally impounded, and we think that it can not be said that where a person releases cattle or animals from their pasture for the purpose of impounding them, it would amount to a legal impounding or would fall within the provisions of the statute; and this defense was presented by the judge in his charge to the jury. But in presenting this defense the court, in our opinion, imposed upon the defendant too great a burden. The court charged on this subject as follows: “I charge you, gentlemen, that before you could find anybody was guilty of cutting the fence, or the fence about which this evidence has been offered, you would have to be satisfied beyond a reasonable doubt of that fact, just as you would as to the guilt of the defendant. It can not be argued simply that somebody cut the fence, without evidence to sustain it. It would have to be shown by cred
Judgment reversed.