Acree v. State

• Citation: 50 S.E. 180,122 Ga. 144
• Parties: ACREE v. STATE.
• Decision Date: 02 March 1905
• Court: Supreme Court of Georgia

50 S.E. 180

122 Ga. 144

ACREE v. STATE.

Supreme Court of Georgia

March 2, 1905

Syllabus by the Court.

The statutory inhibition against setting on fire "any woods lands or marshes, *** except between the twentieth of February and the first of April annually," after due notice to adjacent land proprietors (Pen. Code 1895, § § 229-232), was not intended to apply to a farmer who, in the usual course of husbandry, sets fire to weeds, brush, grass or stubble on a small area of land which is under cultivation, or which he uses as a pasture, that he may successfully carry on his farming operations by preparing his fields for the plow, and freeing his pasture of rank growth and worthless herbage.

Error from Superior Court, Taliaferro County; H. M. Holden, Judge.

Elbert Acree was convicted of firing lands without notice to adjoining landowners, and brings error. Reversed.

Saml. H. Sibley and J. A. Beazley, for plaintiff in error.

D. W Meadow, Sol. Gen., for the State.

EVANS J.

The indictment under which the defendant was convicted contained two counts. The first was for firing lands without first giving the statutory notice, and was framed under Pen. Code 1895, § § 229-231. The second count was for permitting fire to get into the lands of another through neglect, and was framed under Pen. Code 1895, § 232. The jury found him guilty of the charge contained in the first count, and not guilty of the charge made in the second count. He made a motion for a new trial, to the overruling of which he excepts. On the trial it was proven that the defendant rented a farm and pasture lands from the prosecutor. On the day previous to the fire he burned the upper part of his field, and his landlord called his attention to the possible danger of the fire spreading, and admonished him to be careful. The next day the defendant burned the lower end of his field, and also the briers and grass on the land which had been set apart as a pasture. The fire extended beyond the lands rented by the defendant, and burned over adjoining lands, destroying some rails belonging to the prosecutor. The fire was set out some time in March, and no notice to adjacent landowners was given of the time of setting it out. The defendant admitted setting out the fire, but said it was necessary to burn the grass and briers in order that the land might be put in a tillable condition, and the pasture be made available for use. There was some conflict in the testimony as to whether the fire was negligently put out; but, as the jury acquitted him of that charge, it is unnecessary to set forth the evidence bearing on this branch of the case.

Counsel for the plaintiff in error contend that, upon the facts appearing in the record, the conviction of the defendant was contrary to law, for the reason that the sections of the Penal Code under which the indictment was framed were not applicable to small areas of land which are in the control of tenants for the purpose of cultivation and pasturage; that these sections only apply to woods, marshes, and extended tracts of waste land, and not to restricted areas devoted to husbandry. We have undertaken to trace the history of this legislation, in order that we might arrive at the true legislative intent. As early as the year 1811 an act was passed prohibiting persons from setting fire to the woods at improper seasons of the year, but in the second section of that act its operation was limited to eight named counties located in the southern portion of this state. See Lamar's Dig. 553. Subsequently, in 1847, an act was passed for the protection of those engaged in the turpentine business, and to prevent setting fire to woods, lands, or marshes, except at certain times and under certain circumstances. The operation of this act was limited to six designated counties, also located in the same general section of the state. See Cobb's Dig. p. 64. The provisions of this act are, save as to minor particulars, the same as those embraced in our present Penal Code (Pen. Code 1895, § § 229-232). We have been unable to find any other legislation upon this particular subject-matter prior to the adoption of the Code of 1861, when substantially the same regulations as were embraced in the act of 1847 were set forth in section 1405 et seq. of that Code, and their operation extended to the entire state. The codifiers evidently converted the local act of 1847 into a general law. A footnote to section 1456 et seq. of the Code of 1873 refers to that local act as the source from which the provisions of these sections were derived. Thus it will be seen that the purpose of the Legislature was primarily to protect the turpentine industry. As is generally known, the pine trees from which turpentine was taken at that period of our development were located in a section of the state which was covered with wire grass. This wire grass was a luxuriant growth and its blades were killed by the frosts of winter, leaving spread over the ground a...