Thornton v. State

10 S.E.2d 714 | Ga. Ct. App. | 1940

1. Where the bill of exceptions was tendered to the judge within the period of time allowed by the statute, the fact that the judge did not certify it within that period was not cause for dismissal of the writ of error.

2. On a trial for trespass by cutting timber the evidence did not establish that the cutting was on the part of the accused.

DECIDED SEPTEMBER 18, 1940. STATEMENT OF FACTS BY MacINTYRE, J. Homer Drake, a witness for the State, testified: "I know Arthur Thornton, the defendant in this case. That is he sitting over there. I recall the time that it was said that Arthur Thornton and some more negroes cut some timber on my land. That is lot number 135, in the 13th district of Miller County, Georgia. I am the owner of that land. Yes, I had some conversations with Arthur after this happened, and he told me that he knew they had cut my timber, but that he had showed them the line and left them and went back where they had cut some logs down in the swamp. He said that he wanted to settle the case. I told him what I would take to settle it, but he never came back. No, he didn't tell me that he knew they had cut my timber at the time that it was cut." Here the State rested its case. Mathew Jackson, a witness for the defendant, testified: "My name is Mathew Jackson. I remember the time that us boys got over the line and cut some timber on that white man's place. Me and Arthur Thornton was partners in the business. I was to furnish a truck and him the timber, and we was going halves. That morning when we got there Arthur showed us the line and told us to cut down in the swamps, and not to cut up on the hill or we would be over the line, and then he went down in the swamp and started to snaking blocks, and we went on in the swamp and started cutting. The swamp was thick, and we could not tell where the line was. It was so thick a man could easily be lost if he did not know the swamp. Arthur was snaking blocks to the truck, which was located about fifty yards from where we were cutting, when we cut these six trees. No, sir, we didn't know that we were over the line. Arthur was not where we were cutting, but was snaking blocks to the truck where we had already cut down some timber. Yes, sir, he showed us the line and told us not to cut over the line. Arthur came back to the truck three or four times while we were cutting on Mr. Drake's land."

In his statement to the jury the defendant said: "Gentlemen, I showed them boys the line all right, and told them not to cut over the line, and I never did know that they were over the line until they called me from down in the swamp, and I went up there and saw that the sheriff had them. I offered to settle with them after I found out the cutters had cut over the line. I knowed where the line was, and showed it to the cutters. I left and went back where we had cut some timber, and went to snaking blocks. I didn't want them to get over the line, and told them not to." Here the defendant rested his case. Joe Collier was then called by the State, and testified: "I sold Arthur Thornton some timber on my land next to Mr. Drake's land, and I showed Arthur where the line was when I sold him the timber. He had been knowing where it was for three or four years. I showed it to him three or four years ago." Sheriff Tabb, a witness for the State, testified: "I recall the time that I went down to Homer Drake's place and arrested some colored boys who were cutting some timber on Mr. Drake's land. They were Mathew Jackson, Elbert Kinder, and Arthur Thornton. This Jackson negro and Elbert Kinder were sawing when I got there, and they called Arthur and he came up there from out of the swamp. After the commitment that was held for Mathew Jackson I went back down there at the request of Mr. Drake, and traced the line by the blazes on the trees. It was easy to distinguish by tracing it out. Yes, I said at the commitment in the Jackson case, the swamp was thick down there, and that a man could easily cut over the line and not know it. I reckon the blazes on the trees down there are three or four years old." 1. The bill of exceptions recites, among other things, that "within the time prescribed by law the plaintiff in error presents this bill of exceptions," and there is nothing in the record to contradict this recital, as appeared in the records in Shuman v. State,50 Ga. App. 213 (177 S.E. 355), Hodnett v. State,59 Ga. App. 908 (2 S.E.2d 749), Howard v. State,60 Ga. App. 229 (4 S.E.2d 418), and Heaton v. State,60 Ga. App. 428 (4 S.E.2d 98). The motion to dismiss the writ of error on the ground that the bill of exceptions was not tendered within twenty days, the time prescribed by law, is overruled; for the instant case comes within the rule laid down in Whitten v. Savannah,26 Ga. App. 377 (106 S.E. 302), that, "Where it is recited in a bill of exceptions in a criminal case that it is tendered `within the time allowed by law,' and there is nothing in the bill of exceptions or the entries thereon, or in the record, tending to show that perhaps, as a matter of fact, the bill of exceptions was not so tendered, except that it was signed by the judge more than twenty days after the date of the judgment excepted to, the writ of error will not be dismissed on the ground that the bill of exceptions was not tendered and signed within twenty days from the date of the judgment excepted to. Under such circumstances it will be presumed that the bill of exceptions was tendered within twenty days from the date of the judgment, and that the judge held the papers, through no fault of the plaintiff in error or his counsel, until the date of the certificate." See Jones v. State, 146 Ga. 8 (90 S.E. 280); Sweat v. Barnhill,171 Ga. 294 (2) (155 S.E. 18); McCard v. State,54 Ga. App. 339, 340 (187 S.E. 850); Code, § 6-1312.

2. The defendant was charged with a violation of the Code, § 26-3001, which declares, in part, that "wilful cutting or felling of any . . timber . . upon the land, inclosed or uninclosed, of another without the consent of the owner" is a misdemeanor. Wilfulness, as used in the Code section, is an essential ingredient of the crime. The word wilful, as used therein, means "intentionally, malevolently, with a bad purpose, an evil purpose, without ground for believing the act to be lawful." Black v. State, 3 Ga. App. 297 (59 S.E. 823);Hateley v. State, 118 Ga. 81 (44 S.E. 852). The evidence as it related to the defendant did not establish the fact that the cutting of the timber was wilful as thus defined. The verdict was not authorized by the evidence, and the court erred in overruling the motion for a new trial.

Judgment reversed. Broyles, C. J., and Gardner, J.,concur.