Stonecypher v. State , 17 Ga. App. 818 ( 1916 )

Russell, C. J.

1. It is never error to refuse to direct a verdict.

2. The defendant, who was accused of an act of cruelty to a domestic animal, in shooting a bull, having introduced testimony, tending to show that, because of the dangerous character of that animal, there was a necessity for the shooting, at the time and place and under the attendant circumstances, and there being an issue of fact as to whether such necessity actually existed, testimony as to the general character of the animal for docility, and that he was unusually gentle and inoffensive, was admissible to aid the jury in determining the credibility of the respective witnesses upon the question whether the conduct of the bull at the time he was shot was such as to jeopardize the safety of the accused or his family.

Decided April 21, 1916.

Accusation of cruelty to animal; from city court of Eastman— Judge Neese. June 15, 1915.

C. TP. Griffin, for plaintiff in error. J. H. Roberts, solicitor, contra.

3. Without regard to the rule which forbids proof of specific acts as a means of establishing general character, evidence that a particular animal had never, at any other time or place, exhibited any evidence of viciousness would tend to illustrate the improbability of its acting in an ' extraordinarily dangerous way on a specified occasion, and thus aid the jury in determining as to the credibility of the testimony on that subject.

4. The written request, that the jury be instructed that the defendant should not be convicted if the bull alleged to have been injured “was not injured or caused to suffer physical pain or anguish in a spirit of cruelty, but because the said bull had shown itself to be a menace to property in the vicinity, more valuable than the bull,” was sufficiently covered by the charge of the court upon that subject; and it was not error to refuse an instruction that the defendant should not be convicted if the jury believed that he shot the bull not as an act of cruelty, but in order to protect his family and home and property; for there is nothing in the evidence or in the statement of the accused to authorize the inference' that his family or home was in danger of injury from the animal at the time that the animal was shot. "

5. Though there is conflict in the evidence, the issues were fairly submitted to the jury by the trial judge, and there was sufficient evidence to authorize the verdict. The exercise by the trial judge of his discretion in refusing the motion for a new trial will therefore not be disturbed.

Judgment affirmed.