Horsely v. State
| Decision Date | 18 March 1915 |
| Docket Number | 5992. |
| Citation | 84 S.E. 600,16 Ga.App. 136 |
| Parties | HORSELY v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The words "cultivated land," in section 217 of the Penal Code of 1910, are not intended to apply exclusively to land with growing crops upon it. If the land is actually prepared for a crop, or if it has been used for growing crops and the owner intends to devote it again, in due season, to such use, a trespass upon it may be punished under this section.
A tenant is entitled to undisturbed enjoyment of his possession, and the landlord has no right to determine who shall be his guests, or to determine the time of their visits, so long as they do not infringe upon any right of the landlord, and are there on a lawful mission. Nevertheless such visitors may not trespass upon cultivated lands in going to and from a house occupied by a tenant, but must confine themselves to the usual and proper means of approach and departure.
The evidence authorized the verdict, and there is no substantial merit in any of the exceptions to the charge of the court.
Error from City Court of Madison; K. S. Anderson, Judge.
King Horsely was convicted of violating Pen. Code 1910, § 217, and brings error. Affirmed.
Middlebrooks & Burrus, of Madison, for plaintiff in error.
A. G Foster, Sol., of Madison, for the State.
King Horsely was convicted of a violation of section 217 of the Penal Code, which is as follows:
"If any person shall willfully enter, go upon, or pass over any field, orchard, garden, or other inclosed or cultivated land of another, after being personally forbidden so to do by the owner or person entitled to the possession for the time being, or authorized agent thereof, he shall be guilty of a misdemeanor."
The evidence was in substance as follows:
J. A Nolan, the prosecutor, testified that he owned and operated a farm known as the "J. W. Richardson, Jr., place," in Harris district, Morgan county, Ga.; that the title to this land was in him, and he cultivated the land in the year 1913, and during the summer of 1913, he forbade the defendant from going on this land; that, after he forbade him from going there, he saw the defendant on that place during the fall of 1913; that he saw the defendant going through the pasture with a gun on his shoulder; that the defendant came out of a house on the place, and, in going to the pasture passed over a little strip of land between the house and the pasture, on which had been planted during the year a crop of cotton, which was abandoned; that the defendant did not live on that place or on any other place belonging to the prosecutor, and his wife did not live there; that she had lived there but moved away during the preceding summer, and her mother lived in the house where the witness saw him; that the strip of land he crossed was about 150 feet wide, and there was no path or passage over it going towards the pasture; that Bermuda grass took possession of this strip, and for that reason the crop was abandoned for the year; that the witness had planted in cotton the land that he saw the defendant go upon and across, and he intended to plant that particular strip in cotton during the following year, and did plant it in cotton.
Van Jackson testified that he was working as a cropper with the prosecutor on the "J. W. Richardson, Jr., place," and lived in a house thereon; that the defendant came to this house in November, 1913, coming down the road, and when he went away he "left across the field;" that "cotton was planted there in the field" (referring to the strip of cultivated land, which Nolan testified the defendant crossed); that the defendant that he (the witness) was in the yard when the defendant left, and had been talking pleasantly with him, as he "had nothing against him;" that there was no path where the defendant walked across this strip of land to the pasture; that the defendant's wife was not at this house, though her mother was; that the defendant remained a considerable time talking to him and finally saluted him and walked off; that the defendant came there "and spoke to his mother-in-law and walked away."
The defendant denied that the prosecutor had personally forbidden his going on the land, and said, in explanation of his visit there, that his wife was living on Mr. Nolan's place, and had started a crop there, and she was staying with Jackson; that he started over there with no intention of interfering, as his wife told him she wanted to move away; "then Mr. Nolan forbade him to go over there;" that the day Mr. Nolan saw him there he went across the pasture; that his wife "had slipped off over there, and we were all standing around talking," and Jackson told him to go away, as they did not want any trouble, and he went, but did not cross any garden or pasture.
1. In the motion for a new trial it is contended that the court erred in the following charge to the jury:
It is insisted that there was no evidence to support this instruction, and that it was misleading and confusing to the jury and prejudicial to the defendant, in that the jury was led to believe from it that if he went on the "premises" or "land" of Nolan, after having been personally notified not to do so, he would be guilty, regardless of whether the ingress or egress was over a plantation road or over cultivated lands. We do not think the instruction is subject to the exception, and certainly there was evidence to warrant it. The prosecutor testified that during the previous summer he forbade the defendant from going on the "J. W. Richardson, Jr., place"; and the judge carefully guarded all the rights of the defendant by instructing the jury that, should they find that the prosecutor had notified the defendant not to go upon his lands, they should "go further and see if he did go upon the cultivated lands." And further, the court instructed the jury that if the owner notified the defendant personally "not" to go upon his land or premises, "and he [the defendant] afterwards went upon the cultivated lands of the prosecutor, as alleged in the indictment, then he would be guilty." A jury of ordinary intelligence could not have been misled by this plain and clear instruction that the defendant would not be guilty, unless the proof showed that, after being forbidden to go upon the lands or premises of the prosecutor, he went upon the "cultivated lands." This charge did not authorize the jury to convict the defendant if they found that he had entered or left the place over a plantation road or over uncultivated lands.
In the next ground of the motion for a new trial it is contended that the court erred in the following charge to the jury:
It is insisted that the question whether the lands were cultivated, and the question whether there was enough to put the defendant on notice that the lands he walked across were really cultivated, were matters for determination by the jury, and that the court thereby took away from the jury the determination of these questions; and it is further contended that there was no evidence to authorize this charge. In Bryce v. State, 113 Ga. 705, 39 S.E. 282, the Supreme Court said:
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