Butts v. State

• Citation: 167 S.E. 209,46 Ga.App. 174
• Decision Date: 22 December 1932
• Docket Number: 22759.
• Parties: BUTTS v. STATE.
• Court: United States Court of Appeals (Georgia)

167 S.E. 209

46 Ga.App. 174

BUTTS v. STATE.

No. 22759.

Court of Appeals of Georgia, First Division

December 22, 1932

Syllabus by Editorial Staff.

Motion in arrest of judgment lies where, notwithstanding every allegation in indictment is true, defendant is guiltless of any offense.

Motion in arrest of judgment held to lie, where indictment for attempting to kill cow merely alleged accused put Paris green in water tub (Pen. Code 1910, § 752).

Act of putting Paris green in the tub of water from which the cow was to drink, alleged in indictment, was not an attempt, but merely showed preparation for the commission of the offense described by Pen. Code 1910, § 752, which provides that if any person shall maliciously maim or kill any horses or cattle, or shall maliciously maim or kill a hog, he shall be guilty of a misdemeanor.

Error from Superior Court, Webster County; R. L. Greer, Judge.

M. L Butts brings error.

Reversed.

M. A Walker, of Preston, and G. Y. Harrell, of Lumpkin, for plaintiff in error.

Hollis Fort, Sol. Gen., of Americus, for the State.

Syllabus OPINION.

HOOPER J.

1. A motion in arrest of judgment will lie where every allegation in the indictment may be true and yet the defendant be guiltless of any violation of law. Rambo v. State, 25 Ga.App. 390, 103 S.E. 494, and citations.

2. An indictment charging that the accused "did attempt to maliciously kill a certain cow," the ownership and description of which was set forth, "said attempt to kill having been committed by putting Paris Green in a tub of water from which the said cow was to drink," did not sufficiently allege an attempt to violate section 752 of the Penal Code, which provides that "If any person shall maliciously maim or kill any horses or cattle, or shall maliciously maim or kill a hog, he shall be guilty of a misdemeanor." The act of the defendant set forth in the indictment was not sufficient to show an attempt, but merely showed preparation for the commission of said offense. See Peebles v. State, 101 Ga. 585, 28 S.E. 920; Leary v. State, 13 Ga.App. 626, 79 S.E. 584, and citations. Aliter, if the cow had drunk of said water or the defendant had taken steps to cause the cow to drink thereof. See Leary v. State, supra.

The trial judge therefore erred in overruling the motion in arrest of judgment, filed by the defendant during the same term of court at which the verdict of guilty was rendered.

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