It is error to refuse a new trial where an accusation contains two counts, the first charging a violation of Code 45-320 (hunting on the lands of another without having obtained permission of the landowner), and the second charging a violation of Code 45-401 (hunting on posted lands which have been registered), both charges growing out of the same transaction, where upon the trial the evidence does not authorize a conviction for hunting upon the lands of another without the landowner's consent, and the verdict is a general verdict of guilty.
Charles F. Denison, L. B. Denison, Lewis Denison, George P. Hendry, and Harry P. Beasley were charged in two accusations, each containing two counts, with illegal hunting. The material allegations of the counts contained in accusation No. 2692 are as follows: Count 1. "That the said defendants in the County of Chatham . . . on the 31st day of December . . .  did hunt on the lands of Nell Ford Toney, to wit: Ossabaw Island in the 6th militia district in Chatham County, Georgia, without first having obtained permission from such landowner; contrary to the laws of the State of Georgia," etc. Count 2. The defendants are charged with a misdemeanor, "for that the said defendants, in the County of Chatham . . . on the 31st day of December . . .  did hunt with firearms upon the lands of Nell Ford Torrey, to wit: Ossabaw Island in the 6th militia district after said landowner had posted a notice in two places on said tract of land forbidding all persons to hunt thereon and after such landowner had registered his name in the registry for posting lands in the office of the Clerk of the Superior Court of Chatham County, Georgia, after first having stated in the presence of the officers in charge of said book that the two notices had already been posted upon said tract of land and after having registered the description of the lands that were posted by giving the district and other description of the lands sufficient to put the public on notice of the land referred to which were entered in said registry, said registration being done by William Ford Torrey, agent for said landowner."
The material allegations of the counts contained in accusation No. 2800 are as follows: Count 1. "That the said defendants in the County of Chatham . . . on the 31st day of December . . .  did hunt in a creek, stream and estuary leading from the Atlantic Ocean, sounds, rivers, and bays of this State, surrounding Ossabaw Island and which is owned in its entirety by Nell Ford Torrey and which is used and maintained in whole and in part as a private game preserve which creek, stream, and estuary; contrary to the laws of the State of Georgia," etc. Count 2. The defendants are charged with misdemeanor, "for that the said defendants in the County of Chatham and State of Georgia aforesaid, on the 31st day of December . . .  did enter a creek, stream, or estuary, leading from the Atlantic Ocean, sounds, rivers, and bays of this State, surrounding Ossabaw which is owned in its entirety by Nell Ford Torrey and which is used and maintained in whole and in part as a private game preserve for the purpose of hunting therein without the consent of the owner and resident custodian of said island; said creek, stream, and estuary enters and ends in said island and is a salt-water creek, stream and estuary; contrary to the laws of the State of Georgia," etc.
The jury returned the following verdict on both accusations: "We the jury find all of the defendants guilty on both counts." The court entered sentences upon the defendants under both accusations. All defendants, except Hendry, filed motions for new trials, based upon the usual general grounds and five special grounds, which were overruled and all those defendants who had made motions filed bills of exceptions to those judgments. The same principles of law are controlling in all of these cases and they are decided here together.
By the terms of Code 45-320, "Any person who shall hunt upon the lands of another with or without a license, without first having obtained permission from such landowner, shall be guilty of a misdemeanor." Count 1 of accusation No. 2692 and count 2 of accusation No. 2800 are drawn under the provisions of that Code section.
"When one is on trial for violation of a statute which contains an exception or proviso covering circumstanccs that may render legal an act which as a rule is unlawful, the burden is upon him to bring himself within the exception or proviso, but in all criminal trials the burden is upon the State to prove every allegation which is material to constitute an essential element of the offense." Harry v. State, 14 Ga. App. 574 (81 S. E. 815). Under Code 45-320 and the counts indicated, absence of the landowner's consent is an essential element of the offense of hunting on the lands of another. The lands here in question belong to Mrs. Nell Ford Torrey, and while there was evidence that her son and agent, William Ford Torrey, had not given the defendants consent to hunt upon the premises, there was no evidence that he had exclusive power in the premises, or that Mrs. Torrey had not given her consent to the defendants. Therefore, under such a state of the record, the evidence was insufficient to overcome the presumption of innocence of the defendants or to authorize a verdict of guilty upon those two counts of the accusations. Harris v. State, supra. This being so, and the jury having returned a general verdict of guilty of both counts under both accusations, both verdicts were without evidence to support them (Morse v. State, 10 Ga. App). 61, 72 S. E. 534; Simmons v. State, 162 Ga. 316, 134 S. E. 54), and the trial court erred in overruling each of the several motions for new trials.
In view of the ruling made above and the likelihood that the other errors assigned will not recur on another trial, the special grounds of the motions for new trial are not considered.
Judgments reversed. Gardner, P.J., and Townsend, J., concur.