119 Ga. 216 | Ga. | 1903
In order to quiet possession until final trial on the merits, and to prevent a breach of the peace, which might result if one should take the law in his own hands, and attempt to enforce his own rights, the Civil Code, §§4823 — 4826, provides the remedy relating to forcible entry and detainer. A prosecution under the Penal Code, § 220, is not intended as a substitute therefor, nor to serve the office of an action of trespass to try title. On the other hand, it is not necessary that the prosecutor should have perfect title in fee simple, in order to avail himself of the protection afforded by the Penal Code, § 220. Even possession is
But assuming that the prosecutrix was entitled to the possession, that she gave notice to the defendant not to go on the land, that he willfully disregarded the notice, and committed a trespass with intent to violate the law, the evidence wholly fails to show that the land was cultivated or enclosed. He was not charged with going into or passing over a “ field; ” there is no description of the land on which the trespass is alleged.to have been committed ; nothing to show whether it was pasture, woodland, or waste laud; nothing to indicate that there was any fence or enclosure around it; nothing to show that it had ever been cultivated, or that the prosecutrix ever intended to cultivate it. The unlawful act of the defendant in “ working ” or “ cultivating,” the day before the notice, would not of itself make the land cultivated within the meaning of the code; or even- if an act. of trespass could give it that character, there is no evidence as to what part of the place was worked by the defendant on the day of the trespass for which he is prosecuted, nor what kind of work he then was doing,
Judgment reversed.