Crosby v. State

¶1Since deer are not treated in law as domestic (Long Point Co. v. Anderson, 19 Ont. Rep. 487), it would no doubt require positive or circumstantial evidence to show that a particular deer had lost its natural quality of wildness by being domesticated or confined. Civil Code, §3073; Manning v. Mitcherson, 69 Ga. 447. But there can be no need to offer evidence and prove that which is true as matter of law. Nor in the first instance will one be required to prove that an animal has the *201very quality of wildness which the definitions and classifications of the law recognize as belonging to it. It is no more needed to prove that the deer is a wild animal than that the sheep is a domestic animal. If therefore a right or defense is to be founded upon the fact that a deer is tame, the burden is upon him who relies upon a fact contrary to the real nature of the animal, and contrary to the law, which classifies and treats deer as prima facie wild. Not only does this logical result flow from this definition of the law, but, wildness being the rule and domestication the exception, to force the State to prove a negative and require it to establish that the deer had not been tamed would put on it a burden impossible to be carried. It is a practical and logical impossibility to prove the negative and show that the animal does not belong to somebody. Proof that it does not belong to A, B, or C does not prove that it may not belong to X Y, or Z. On the other hand, if it be private property or lawfully killed, the possessor, knowing from whom he got it, or when, where, and how he got it, may easily prove the affirmative. Amos v. State, 34 Ga. 531; Reich v. State, 63 Ga. 620; Rex v. Turner, 5 M. & S. 206.