Mathews v. State

Bloodwortii, J.

Only the second headnote will be enlarged upon.' The indictment contained two counts. The accused was convicted on the second count, which charges that he “did unlawfully, wilfully, and wantonly, by himself and by his agents and servants, to wit, Berry Arnold, Sam McRae, German Jenkins, James Arnold, and each of them, mutilate, injure, and destroy the private burying ground on lot of land No. 431, in the 12th district of said county, known as the ‘Old Wilson Cemetery/ by having the same cleared of all trees, flowers, shrubbery, and grave markings then and there in said cemetery, and by having said grounds plowed and prepared for cultivation, which burying ground consisted of one acre reserved in the warranty deed from J. D. Wilson to E. M. Mathews, conveying to said accused the land surrounding said cemetery, and under which deed said accused was then and there occupying said surrounding lands.” Under this count, admitted by counsel for plaintiff in error to be good, one of the tilings necessary to be proved is that the “Old Wilson Cemetery,” the burying ground in question, “consisted of one acre reserved in the warranty deed from J. D. Wilson conveying to said accused the land surrounding said cemetery.” This is a part of the description of the offense. No question of title is involved in the case. It matters not in Avhom the title to the cemetery is vested. Under the statute it is not necessary to allege in the indictment that the title to the acre reserved for the cemetery was vested in any one person. There being no allegation of title, proof thereof Avas not necessary. The question is: Was the land which was being used as a cemetery the land reserved in the deed ? - Any competent evidence to establish this fact Avas admissible. The same definiteness of description is not required as in a ease Avhere title is involved. As a part of the evidence to establish the foregoing allegation in the indictment, the deed from Wilson was admissible, although this deed had no further description of the acre reserved than that which is set out therein. In this connection see Drew v. State, 18 Ga. App. 34 (88 S. E. 716); Phillips v. State, 29 Tex. 226.

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.