Herndon v. State

99 S.E. 11, 23 Ga. App. 538, 1919 Ga. App. LEXIS 191

Opinion

Stepiiens, J.

Where a statute provides that it is a misdemeanor for one to “wilfully” ride or drive a horse or mule belonging to another without the owner’s consent, an. accusation charging one with “unlawfully” driving a mule of another without the owner’s consent, and failing to charge that the same was “wilfully” done, sets out no violation of the statute; nor does it charge the commission of any offense whatsoever. The trial judge therefore erred in overruling the motion in arrest of judgment.

Judgment reversed.

Broyles, P. J., and Bloodmorth, J., concur.

Accusation of misdemeanor; from city court of Jesup—Judge Clark. November 4, 1918. - '

W. -W. Bennett, for plaintiff in error, cited:

Penal Code (1910), § 333; Mathews v. State, 16 Ga. 31-3; Herring v. State, 114 Ga. 96-99.

W. B. Gibbs, solicitor, J. R. Thomas, contra, cited:

Badger v. State, 5 Ga. App. 477; Black v. State, 3 Ga. App. 397, and citations.