Cooper v. State

63 S.E. 719, 5 Ga. App. 697, 1909 Ga. App. LEXIS 106

• Court: Court of Appeals of Georgia
• Decided: February 20, 1909
• Docket: 1626
• Status: Published

Opinion

Russell, J.

The evidence showing, without contradiction, that the defendants acted in good faith, and there being, therefore, no evidence of criminal intent, the conviction of the defendants was unwarranted and a new trial should have been granted. Judgment reversed.

Cooper and Ponder pulled down a plank fence erected as a street boundary on land alleged to be a part of Mrs. Guyton’s lot in the town of Guyton; they were convicted of trespass, and they excepted to the overruling of their motion for a new trial. From the evidence it appears that they were laborers working-for the town, under the supervision of the town marshal, who, by order of the mayor, directed them to pull down the fence,, the mayor contending that it encroached upon the street. They did this on the day on which it was erected. Before its erection there had been no street fence to the lot. Evidence of title in. Mrs. Giyyton to the land in question was introduced; but it was-contended, in behalf of the defendants, that land enclosed by the fence had been dedicated to the public as a sidewalk, andr according to some of the testimony, it had been for many years, used for that purpose, though on this point there was conflict in the evidence. The defendants stated to the jury that they thought it was right for them to take the fence down, as the town marshal had directed them to do so. Cited by counsel for plaintiffs in error, as to the point decided by this court: Shrouder v. Stale,. 121 Ga. 615 (3); Wiggins v. State, 119 Ga. 216 (2); Hateley v. State, 118 Ga. 79.

II. B. Strange, for plaintiffs in error. Clarence T. Guyton, solicitor pro tem., contra.