The plaintiff in error was placed on trial in the county court of Morgan county, charged with the offense of attempt to commit a larceny. The evidence showed that the defendant was preparing to steal certain cotton of the prosecutor. Fie applied to one Joe Shy for the use of his wagon. Shy informed prosecutor, who told him to let the accused have the wagon, and to go with him, and to keep him, prosecutor, informed, so that he could catch the accused, if he attempted to carry out his purpose, which Shy did. The prosecutor and several others went to the gin-house. The defendant drove to the gin-house, and went up to and placed his hands on the cotton when prosecutor arrested him.
*746The county judge, among other things, instructed the jury, “ that if they believed from the evidence that the accused first approached Joe Shy and proposed to take the cotton, and the latter consented, but reported the fact to Akens, the owner, the prosecutor, who directed Shy to go with the accused and let him have the wagon and mules, and did go with him for the cotton, but the accused was frustrated in the design, then he was guilty of an attempt to commit larceny.”
The accused was found guilty, and presented his petition for a writ of certiorari, alleging as error the charge of the court hereinbefore set forth. .The judge of the superior court dismissed the application for certiorari, and affirmed the ruling of the county court, and this judgment is assigned as error.
One who is trying to steal the property of another is in the condition of a beast of prey, and it is as lawful to trap such a person as it is the beast of prey.
The question in such a case, as regards the defendant, is as to the animus furandi with which he acts. What was the purpose of defendant in going to prosecutor’s gin-house ? Was it his purpose to steal the cotton of prosecutor ? If it was, he is guilty, and it would seem that the conduct of the prosecutor could have but little effect upon the crime; and such was, in effect, the ruling of this court in 35 Ga., 247. *
Let the judgment of the court below stand affirmed.