51 Ga. App. 228 | Ga. Ct. App. | 1935
Arthur Pritchett, was indicted and convicted for the offense of a misdemeanor. He filed a demurrer, both general and special, to the indictment, which the trial judge overruled. He brings a writ of error to this court, complaining of this ruling. The indictment is as follows: “For that the said Arthur Pritchett on the 22nd day of October in the year 1933, in the county aforesaid, did then and there, unlawfully and with force and. arms, did willfully and wantonly injure the private burying ground of the family of Farrish Carter, Sr., established in the year 1867, which said burying ground still belongs to the heirs at law of Farrish Carter, there not having been any sale of said burying ground or
The indictment was undoubtedly drawn under section 771 of the Penal Code (1910), which is as follows: “Disturbing private burying grounds. Any person who, by himself, his agent, or servants, shall mutilate, or in anywise injure or destroy, any private burying ground which has been reserved in any private or public sale of the surrounding land, shall be guilty of a misdemeanor.” The principal ground of special demurrer is that the indictment fails to allege that the private burying ground “has been reserved in any private or public sale of the surrounding land,” and that, this allegation being a necessary part of the description of the offense, the indictment must fail. We are well aware of the principle that criminal statutes must be strictly construed (Schane v. City of Atlanta, 127 Ga. 36, 56 S. E. 91; McAllister v. State, 122 Ga. 744, 50 S. E. 921; Thorn v. State, 13 Ga. App. 10, 78 S. E. 853), and that the terms of the statute should not be extended (Johnson v. State, 1 Ga. App. 195, 58 S. E. 265), yet penal statutes are to be given a reasonable intendment (Holland v. State, 11 Ga. App. 769, 76 S. E. 104), and the obvious intention of the legislature should not be defeated by the rule of strict construction. Lipham v. State, 125 Ga. 52 (53 S. E. 817, 114 Am. St. R. 181, 5 Ann. Cas. 66); Minor v. State, 63 Ga. 321; Sanders v. State, 74 Ga. 85. “The cardinal canon of construction of a legislative act is that the intention, when ascertained, governs; and all other rules of interpretation are subordinate.” Roberts v. State, 4 Ga. App. 207 (60 S. E. 1082); Coker v. State, 12 Ga. App. 425 (76 S. E. 103). It will be noted that § 771, quoted above, deals with the mutilation or destruction of private burying grounds. Section 770 deals with injury or destruction of any inclosure around or within any public or private burying ground, or any monument, tombstone, or other fixtures
The other principal contention of the plaintiff in error is that the indictment does not charge any offense under our Code. That there is nothing in either § 770 or § 771 making penal the “digging into the graves,” or the “attempting to break into the coffins,” or the “striking and beating of the tops of said coffins.” Since the section under which we have construed the indictment does not deal with injury to “coffins,” which may be termed a “fixture” of a burying .ground, and even should the indictment be construed under § 770, there being no allegation that the “coffins” were materially and substantially injured (Pollet v. State, 115 Ga. 234, 41 S. E. 606), we are in agreement with counsel for defendant that these allegations do not state an offense under the laws of our State. However, we can not agree that none of the allegations do so. This statute penalizes muiilaiion or injury- to any private
Judgment affirmed.