Wilson v. State , 72 Ga. App. 620 ( 1945 )

The evidence for the State was sufficient to authorize a conviction. It was contradicted only by the statement of the accused, which the jury were not required to believe. Hence a verdict finding the accused guilty will not be set aside by this court as contrary to the evidence, especially since the trial judge has expressed his approval thereof by overruling the motion for a new trial.

DECIDED APRIL 20, 1945. REHEARING DENIED JUNE 28, 1945. Leo Wilson was convicted by a jury in the city court of Swainsboro on a charge of cruelty to a domestic animal in violation of section 26-7902 and 26-7904 of the Code. His motion for a new trial was overruled and he excepted.

E. A. Riner testified for the State in part as follows: "I am the prosecutor in this case. On the night of April 5, 1944, I was hunting fox with Norman Foskey. We released our dogs about six miles from the home of Leo Wilson. . . One of my dogs, a lemon-pided, 4-year-old foxhound, did not come back and [the next day] we went looking for it. . . We went to Mr. Wilson's house, and he told us that he had shot a dog that answered to my dog's description, and he showed us where he had shot the dog. We were told by Mr. Wilson that he shot the dog because it was running, and had killed some of his sheep. He also admitted shooting a dog that belonged to Mr. Foskey. We went over to the place where Mr. Wilson said he had shot the dog, and we found my dog dead. It evidently had been killed instantly. We looked for signs of sheep having been killed, but we could not find any sings. This place was about a half mile from Mr. Wilson's home, and was not on any land that he owned or controlled. Some months before, Mr. Wilson had told me that some of our dogs had killed some of his sheep. We paid him for the sheep — the full amount that he asked. He told me at that time that in the event any of our dogs ever harmed his sheep that he would let me know." Foskey's testimony was in essence the same as Riner's. Two other witnesses for the State testified, among other things, that they could find no signs that sheep had been killed near the place where Wilson said that he had shot the dog. The defendant made the following statement to the jury: "Gentlemen of the jury, I have been living where I live [now] for all my life, for fifty-one years. I raise sheep, goats, and turkeys, and sell them. I have never been bothered with my business before. I went to bed and went to sleep and was awakened about nine-thirty. The dog was running the sheep about 150 yards from my house. I grabbed the gun and run to where they were, and tried to stop the dog, and the dog would not listen to me, and [I] looked about twenty steps from me and there were two dogs on the sheep, and I shot one and he fell, and there were three more dogs, and I ran after them and they left. I stayed down there until about one o'clock. I stayed there running and fighting the dogs until about one o'clock. No one ever came to me anyway. That was all I knew to stop the dogs from killing my sheep. If I hadn't done it they would have killed all the sheep I had. That was the third time I had been in there and they had killed thirty-seven head of sheep. I forbid Mr. Riner from coming in there, and told him they were killing my sheep, and that it was costing me too much money." In the instant case, there is no controversy over who killed Riner's dog, for the killing was admitted by the defendant. Therefore the only question to be decided is, was the killing justifiable? "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 word ``cruelty' shall be held to include every wilful act, omission, or neglect, whereby unjustifiable physical pain, suffering, or death is caused or permitted." Code, §§ 26-7902, 26-7904. Under the evidence, the jury were authorized to find that the dog had been killed on the open range approximately a half mile from the defendant's house on land neither owned nor controlled by the defendant; that there was no evidence, other than the defendant's statement, that when killed the dog had been killing sheep, or had acquired the sheep-killing habit, so as to become a nuisance. Thus, as the motive of the defendant in killing the dog, and whether the same was justifiable under the circumstances, were questions for solution by the jury, there was sufficient evidence to authorize a verdict of guilty of the statutory offense of cruelty to animals, and the judge did not err in overruling the motion for a new trial. Miller v.State, 5 Ga. App. 463 (63 S.E. 571); May v. State,120 Ga. 497 (48 S.E. 153); Moore v. State, 121 Ga. 194 (48 S.E. 919). Compare Green v. State, 124 Ga. 343, 348 (52 S.E. 431).

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