In this Georgia case, appellants were convicted of the offense of cruelty to animals upon evidence that they were spectators at a cockfight. The Court of Appeals agreed with the appellants that the evidence was insufficient to support the conviction, and the judgment was reversed. The court found that the statute prohibiting cruelty to animals was meant to include fowls as animals and thus proscribed cruelty to a gamecock. However, the evidence that defendants were among the spectators at a cockfight was insufficient to sustain their convictions.
Other states have construed their cruelty to animals statutes not to include cockfighting, primarily because there was lacking any showing of legislative intent to include fowls as “animals.” See State v. Stockton, 85 Ariz. 153, 333 P.2d 735; State ex rel. Miller v. Claiborne, 211 Kan. 264, 505 P.2d 732; State v. Buford, 65 N.M. 51, 331 P.2d 1110; and Lock v. Falkenstine, supra. In contrast, our legislature appears to have expressed its intent by the committee note which declares the statute “covers all animals” and adds, “the public's sensibilities are as likely to be outraged by wanton acts of inhumanity to goldfish, lions, turtles and dolphins as when the acts are suffered by more frequently encountered or more valuable animals.” We conclude that the statute was meant to include fowls as animals, and cruelty to a gamecock therefore is proscribed conduct.
2. The only evidence that the appellants committed an act of cruelty to the gamecocks was that they were among the spectators. While it is obvious that someone among the group arranged the fight, set up the pit, and strapped on the spurs, there was no showing that any of the individual appellants had done any of these acts. Indeed, one of the State's two witnesses said nothing implicating any individual. The other, who was close to the scene, testified that he had seen none of the appellants do anything cruel to any animal. In sum, the strongest evidence against any appellant was that he had been arrested; each was guilty by association. Although it may have been proved that some member of a group committed a crime, merely being a member of the group present at the scene does not authorize a conviction. Barnes v. State, 136 Ga.App. 626(7), 222 S.E.2d 143. The trial court erred in not directing a verdict of acquittal as to each appellant.
BELL, C. J., concurs.
McMURRAY, J., concurs specially.
McMURRAY, Judge, concurring specially.
Defendants were charged by accusation with a misdemeanor, that is, cruelty to animals, by causing a cockfight between chickens (game roosters) fitted with metal spurs. I abhor cruelty to animals as much as anyone, but the state here failed to prove which, if any, of the defendants were actually engaged in the cockfighting or parties thereto or that there were acts of cruelty to animals except by inference and knowledge that game roosters generally will fight to the death if allowed to do so. These defendants were present where undoubtedly cockfighting had occurred. The officers testified that they did not see any cruelty to animals nor did they identify any of the defendants as engaged in cruelty to animals. Mere presence at a scene of a crime and nothing more is insufficient to authorize a conviction of every person at a scene who is arrested. Barnes v. State, 136 Ga.App. 626, 627(7), 222 S.E.2d 143. I therefore concur in the judgment only.
Ga.App. 1977.