McClurg v. State

• Decision Date: 14 October 1907
• Docket Number: 669.
• Citation: McClurg v. State, 2 Ga.App. 624, 58 S.E. 1064 (Ga. App. 1907)
• Parties: McCLURG v. STATE.
• Court: Georgia Court of Appeals

58 S.E. 1064

2 Ga.App. 624

McCLURG v. STATE.

No. 669.

Court of Appeals of Georgia

October 14, 1907

Syllabus by the Court.

Parol evidence is not admissible to prove title to real estate, and it was error to refuse to repel the statements of witnesses as to the ownership of land when such evidence was properly objected to.

[Ed Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 882.]

The time, place, and the circumstances of the act are all relevant for the purpose of disproving malice.

[Ed Note.-For cases in point, see Cent. Dig. vol. 33, Malicious Mischief, § 14.]

Error from City Court of Moultrie County; R. L. Shipp, Judge.

H. J McClurg was convicted of maliciously destroying property belonging to another, and she brings error. Reversed.

D. W Rountree, W. C. McCall, and J. D. Wade, Jr., for plaintiff in error.

W. F. Way, for the State.

RUSSELL J.

The turning point in this case is whether the trough or gutter which the plaintiff in error was alleged to have maliciously destroyed, and which she admitted she cut to pieces, was rightfully on the land of another, or whether it was being used (apparently wantonly) to stop up the only road plaintiff in error had to go to her home, and thus to destroy her only means of ingress or egress from her property. The destruction of the property alleged in the accusation was admitted. The only other question that could arise in the case was whether the destruction was malicious. If the gutter was on land on which it properly belonged, the law might infer malice from the fact of the destruction. If it were on a roadway, the circumstances leading up to the destruction might rebut the presumption of malice. Over the objection of defendant's counsel, the court permitted parol evidence as to the ownership of the land where the gutter was alleged to have been placed, and in this we think the court erred. As stated by the Supreme Court in Bleckley v. White, 98 Ga 598, 25 S.E. 592: "The law goes quite far enough to presume possession rightfully." The bare statement of a witness that he owns certain real estate is no proof of title. It is uncontradicted in the evidence that the gutter or water trough from Jones' well to the horse lot was built across what had been used for from 18 to 21 years as a private road leading from the public road to Mrs. McClurg's home. This being true, Jones and Christian would have had no right to close this...