92 Ga. 1 | Ga. | 1893
1. The act approved November 26th, 1890, amending the fence laws of the State and repealing section 1449 of the code (Acts of 1890-91, vol. 1, p. 69), is a general law, and is constitutional. It operates generally throughout the whole State. Every county in the State may avail itself of the provisions of this act, and of the one of which it is amendatory. "Whenever and wherever an election is held and fences are abolished by a vote of the people, this act applies. No county or section of the State is excluded from its operation. All that is necessary to put it in force in any county is to comply with the requirements of the act of which it is amendatory. It is very similar in its provisions to the local option act which has been held by this court to be a general law and constitutional. Crabb v. State, 88 Ga. 684. Being an amendment to the original act, it takes the place of the section in the code repealed by it, and becomes a part of that act. Its provisions went into effect immediately in all those counties which had attempted to abolish fences but had not succeeded, on account of the want of legislative power to pass special acts for particular counties. The same provisions are likewise applied to other counties when they hold elections and abolish fences by popular vote. When this is done according to the requirements of the original act, the boundary lines of each lot or tract of land will be a lawful fence. In the same manner, the act went into immediate operation in all those counties which had attempted to abolish fences by special legislative enactment, and the provisions of the original act in regard to impounding stock were applied to the new condition established by the amending act in all those counties; and the same provision will apply in all counties which hereafter adopt the act by popular vote. Monroe county being one of those which had attempted to abolish fences
2. We think the court erred in the charge set out in the second head-note of this opinion. We are of the opinion that if the jury should believe the facts recited in this charge, they would be authorized and required to find the defendant not guilty. This charge instructs them that they could not, on the hypothesis therein stated, find him guilty of murder. It should have gone further and negatived the idea of manslaughter as well as murder, and it was error to restrict the jury to the element of murder alone, as they might have inferred from this charge that the court intended to do. Limiting them to the element of murder might have been understood as equivalent to saying that they might find the defendant guilty of manslaughter upon the facts recited. The court ought to have instructed the jury that if these facts were true, they should acquit the defendant. We think this error requires the grant of a new trial. Speaking for myself, I think the refusal of the court to continue the case on account of the sickness of the leading counsel for the accused, was also error; but in this the other members of the court do not concur. I think, when a party makes a motion for a continuance on account of the absence of his leading counsel, and makes the proof required by section 3525 of the code, the judge has no discretion in the matter,— no more than he has when proof is made that a party is providentially prevented from attending the trial of the cause. Section 3524 of the code declares, that if either party shall be providentially prevented from at
The other grounds of the motion for a new trial do not embrace any cause for reversing the judgment.
Judgment reversed
