54 S.E.2d 505 | Ga. Ct. App. | 1949
(a) The defendant was convicted of cruelty to animals in that he did run his automobile against and kill certain mules described in the accusation. Briefly, but substantially, the evidence shows that the mules described in the accusation had broken out of the enclosure in a "no-fence county" and were on the public highway on which the defendant was traveling. It was a dirt road. The evidence for the State shows that it was at night, about 8 or 8:30 o'clock. The road was dusty and visibility bad. The State's evidence shows that the defendant came into the highway traveling pretty fast. One witness testified that he was traveling about 35 miles per hour. The evidence is not clear as to whether the mules were meeting the car or were in front of the car traveling in the same direction. The jury found the defendant guilty. Error is assigned here on the general grounds and several special grounds.
(b) The court charged the principle of law in the Code, § 26-7901, to the effect that, "Any person who shall maliciously maim or kill any horses or cattle or shall maliciously maim or kill a hog shall be guilty of a misdemeanor." The court also charged the principle of law contained in the Code, § 26-7902, that, "Every person who shall instigate, engage in, or do anything in furtherance of an act of cruelty to a domestic animal shall be punished as for a misdemeanor." The court did not charge the principle of law embodied in the Code, § 26-7904, to the effect that the word "`cruelty' shall be held to include every wilful act, omission, or neglect, whereby unjustifiable physical pain, suffering or death is caused or permitted." This last section defining cruelty was added to this subject by amendment in an act of the legislature of 1922 (Ga. L. 1922, p. 49).
(c) The elements necessary to constitute this offense under the above Code section, we think, have been clearly defined by our appellate courts. In Quick v. State,
(d) There are several special grounds. One of them complains because the court did not charge on the principle of law relative to misfortune or accident. This ground has no merit.
Another special ground assigns error because the court charged all of Code § 26-7901. This could not have been harmful, and it is therefore without merit.
Another special assignment of error is that the court did not charge that portion of the Code, § 26-7904, defining the word "cruelty." We think that the court should have given this portion of that section in charge.
Judgment reversed. MacIntyre, P. J., and Townsend, J.,concur.