O.C.G.A. § 16-12-4 (2019)
Cruelty to animals
(a) As used in this Code section, the term:
(1) “Animal” shall not include any fish nor shall such term include any pest that might be exterminated or removed from a business, residence, or other structure. (2) “Malice” means: (A) An actual intent, which may be shown by the circumstances connected to the act, to cause the particular harm produced without justification or excuse; or (B) The wanton and willful doing of an act with an awareness of a plain and strong likelihood that a particular harm may result. (b) A person commits the offense of cruelty to animals when he or she: (1) Causes physical pain, suffering, or death to an animal by any unjustifiable act or omission; or (2) Having intentionally exercised custody, control, possession, or ownership of an animal, fails to provide to such animal adequate food, water, sanitary conditions, or ventilation that is consistent with what a reasonable person of ordinary knowledge would believe is the normal requirement and feeding habit for such animal’s size, species, breed, age, and physical condition. (c) Any person convicted of the offense of cruelty to animals shall be guilty of a misdemeanor; provided, however, that any person who has had a prior adjudication of guilt for the offense of cruelty to animals or aggravated cruelty to animals, or an adjudication of guilt for the commission of an offense under the laws of any other state, territory, possession, or dominion of the United States, or of any foreign nation recognized by the United States, which would constitute the offense of cruelty to animals or aggravated cruelty to animals if committed in this state, including an adjudication of a juvenile for the commission of an act, whether committed in this state or in any other state, territory, possession, or dominion of the United States, or any foreign nation recognized by the United States, which if committed by an adult would constitute the offense of cruelty to animals or aggravated cruelty to animals, upon the second or subsequent conviction of cruelty to animals shall be guilty of a misdemeanor of a high and aggravated nature. (d) A person commits the offense of aggravated cruelty to animals when he or she: (1) Maliciously causes the death of an animal; (2) Maliciously causes physical harm to an animal by depriving it of a member of its body, by rendering a part of such animal’s body useless, or by seriously disfiguring such animal’s body or a member thereof;
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(3) Maliciously tortures an animal by the infliction of or subjection to severe or prolonged physical pain; (4) Maliciously administers poison to an animal, or exposes an animal to any poisonous substance, with the intent that the substance be taken or swallowed by the animal; or (5) Having intentionally exercised custody, control, possession, or ownership of an animal, maliciously fails to provide to such animal adequate food, water, sanitary conditions, or ventilation that is consistent with what a reasonable person of ordinary knowledge would believe is the normal requirement and feeding habit for such animal’s size, species, breed, age, and physical condition to the extent that the death of such animal results or a member of its body is rendered useless or is seriously disfigured. (e) Any person convicted of the offense of aggravated cruelty to animals shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years, a fine not to exceed $15,000.00, or both; provided, however, that any person who has had a prior adjudication of guilt for the offense of aggravated cruelty to animals, or an adjudication of guilt for the commission of an offense under the laws of any other state, territory, possession, or dominion of the United States, or of any foreign nation recognized by the United States, which would constitute the offense of aggravated cruelty to animals if committed in this state, including an adjudication of a juvenile for the commission of an act, whether committed in this state or in any other state, territory, possession, or dominion of the United States, or any foreign nation recognized by the United States, which if committed by an adult would constitute the offense of aggravated cruelty to animals, upon the second or subsequent conviction of aggravated cruelty to animals shall be punished by imprisonment for not less than one nor more than ten years, a fine not to exceed $100,000.00, or both. (f) Before sentencing a defendant for any conviction under this Code section, the sentencing judge may require psychological evaluation of the offender and shall consider the entire criminal record of the offender. (g) The provisions of this Code section shall not be construed as prohibiting conduct which is otherwise permitted under the laws of this state or of the United States, including, but not limited to, agricultural, animal husbandry, butchering, food processing, marketing, scientific research, training, medical, zoological, exhibition, competitive, hunting, trapping, fishing, wildlife management, or pest control practices or the authorized practice of veterinary medicine nor to limit in any way the authority or duty of the Department of Agriculture, Department of
Natural Resources, any county board of health, any law enforcement officer, dog, animal, or rabies control officer, humane society, veterinarian, or private landowner protecting his or her property. (h)(1) In addition to justification and excuse as provided in Article 2 of Chapter 3 of this title, a person shall be justified in injuring or killing an animal when and to the extent that he or she reasonably believes that such act is necessary to defend against an imminent threat of injury or damage to any person, other animal, or property. (2) A person shall not be justified in injuring or killing an animal under the circumstances set forth in paragraph (1) of this subsection when: (A) The person being threatened is attempting to commit, committing, or fleeing after the commission or attempted commission of a crime; (B) The person or other animal being threatened is attempting to commit or committing a trespass or other tortious interference with property; or (C) The animal being threatened is not lawfully on the property where the threat is occurring. (3) The method used to injure or kill an animal under the circumstances set forth in paragraph (1) of this subsection shall be designed to be as humane as is possible under the circumstances. A person who humanely injures or kills an animal under the circumstances indicated in this subsection shall incur no civil liability or criminal responsibility for such injury or death.
History
Code 1933, § 26-2802, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1992, p. 1654, § 1; Ga. L. 2000, p. 754, § 12; Ga. L. 2014, p. 492, § 1/HB 863.
Annotations
Cross references. Investigation prior to charges of cruelty to animals in animal husbandry, § 4-1-7. Permitting livestock to run at large or stray, § 4-3-3. Cruelty to dogs and killing dogs, § 4-8-5. Regulation of pet dealers and operators of kennels, stables, or animal shelters, § 4-11-1 et seq. Abandonment of domesticated animal, § 4-11-15.1. Humane handling and care of wild animals, § 27-5-6. Editor’s notes. Ga. L. 2000, p. 754, § 1, not codified by
the General Assembly, provides: “This Act shall be known and may be cited as the ‘Animal Protection Act of 2000.’” Law reviews. For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For article, “Misdemeanor Sentencing in Georgia,” see 7 Ga. St. B.J. 8 (2001). For comment, “The Abuse of Animals as a Method of Domestic Violence: The Need for Criminalization,” see 63 Emory L.J. 1163 (2014). For annual survey of criminal law, see 67 Mercer L. Rev. 31 (2015). For article, “What Zombies Can Teach Law Students: Popular Text Inclusion in Law and Literature,” see 66 Mercer L. Rev. 729 (2015). For note, “Puppies, Puppies, Puppies: Why Georgia Should ‘Adopt’ a Progressive
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Puppy Lemon Law and Engage in Much-Needed Statutory Reform,” see 55 Ga. L. Rev. 431 (2020). JUDICIAL DECISIONS Constitutionality. - O.C.G.A. § 16-12-4 was not unconstitutionally vague; subsection (b) clearly explained when a person would be liable for cruelty to animals, while former paragraphs (f)(1) and (2) explained that killing or wounding an animal could be justified under some circumstances if the killing was “humane,” or done in such a way as to demonstrate compassion for the animal (see now O.C.G.A. § 16-12-4(h)(1), (2) and (3)). In the Interest of C.B., 286 Ga. 173, 686 S.E.2d 124, 2009 Ga. LEXIS 688 (2009). Dogfighting provision in § 16-12-37 constitutional. - While O.C.G.A. § 16-12-4 makes it a misdemeanor for anyone to subject any animal to cruel treatment, O.C.G.A. § 16-12-37 ($5,000.00 fine, with optional year in prison, for dogfighting) does not violate equal protection, because the legislature acted within its discretion in mandating that those who participate in a dogfight organization for sport or gaming purposes should be dealt with more harshly. Hargrove v. State, 253 Ga. 450, 321 S.E.2d 104, 1984 Ga. LEXIS 955 (1984). O.C.G.A. § 16-12-4 does not limit offense to killing animals; it is enough to cause them unjustifiable suffering. Smith v. State, 160 Ga. App. 26, 285 S.E.2d 749, 1981 Ga. App. LEXIS 2860 (1981). Malice, wilfulness and intent are not elements of the offense of cruelty to animals. Miller v. State, 179 Ga. App. 217, 345 S.E.2d 909, 1986 Ga. App. LEXIS 2606 (1986); Cox v. State, 216 Ga. App. 86, 453 S.E.2d 471, 1995 Ga. App. LEXIS 25 (1995), cert. denied, No. S95C0771, 1995 Ga. LEXIS 669 (Ga. Apr. 18, 1995). Motive for inflicting injury and justification are for jury consideration. - Motive of defendant in inflicting injury upon animal, and whether the motive was justifiable under circumstances, are generally questions for solution by jury. Rushin v. State, 154 Ga.
App. 41, 267 S.E.2d 473, 1980 Ga. App. LEXIS 2036 (1980). Ownership of property or animals not material element. - Neither ownership of the property on which the animals are found nor ownership of the animals is a material element of the offense of cruelty to animals. Tiller v. State, 218 Ga. App. 418, 461 S.E.2d 572, 1995 Ga. App. LEXIS 751 (1995). Test is whether injury inflicted upon animal was, under circumstances, justifiable. Rushin v. State, 154 Ga. App. 41, 267 S.E.2d 473, 1980 Ga. App. LEXIS 2036 (1980). Former Code 1933, § 26-2802 (see now O.C.G.A. § 16-12-4) includes fowls as animals, and cruelty to a gamecock therefore is proscribed conduct. Brackett v. State, 142 Ga. App. 601, 236 S.E.2d 689, 1977 Ga. App. LEXIS 1415 (1977). Cockfighting is effectively prohibited by former Code 1933, § 26-2802 (see now O.C.G.A. § 16-12-4). Brackett v. State, 142 Ga. App. 601, 236 S.E.2d 689, 1977 Ga. App. LEXIS 1415 (1977). Accusation sufficient. - Accusation charging a defendant with causing the unjustifiable physical pain or suffering of a dog by failing to provide adequate food or water or medical care was sufficient to charge the defendant with cruelty to animals pursuant to O.C.G.A. § 16-12-4. Ford v. State, 306 Ga. App. 606, 703 S.E.2d 71, 2010 Ga. App. LEXIS 1002 (2010). Seizure of malnourished and mistreated animals. - Because sufficient exigent circumstances existed to authorize a sheriff’s deputy to enter the defendant’s backyard and seize a number of animals the officer observed were malnourished and mistreated, and given the harsh weather conditions and impending holiday, obtaining a warrant would have been unreasonable, the defendant’s motions to suppress and in limine seeking to preclude admission of
the evidence seized were properly denied. Moreover, the evidence seized after the defendant’s lawful arrest, and observed in plain view by the officer upon being allowed to enter the defendant’s residence was also properly admitted. Morgan v. State, 289 Ga. App. 209, 656 S.E.2d 857, 2008 Ga. App. LEXIS 38 (2008). Jury instructions. - There was no plain error in the trial court’s charge to the jury that no criminal liability would attach if the defendant killed a neighbor’s dog in order to protect livestock because the trial court’s charge on animal cruelty, as a whole, was consistent with the language of O.C.G.A. § 16-12-4, and it adequately explained to the jury that a person was not prohibited from killing an animal if necessary to protect his or her person or property or that of another. Futch v. State, 314 Ga. App. 294, 723 S.E.2d 714, 2012 Ga. App. LEXIS 181 (2012). Facts warranting conviction. - When evidence shows that defendants had exclusive control and possession of certain property on which certain animals were found, and since many of the animals were dead under circumstances indicating that death resulted from lack of food and water, and since some of the animals involved were alive when found but were so seriously malnourished and ill that the animals were put to death by the state, the inescapable conclusion to be drawn from such evidence is that defendants abandoned living animals without food or water, thereby causing unjustifiable physical pain, suffering, or death. Smith v. State, 160 Ga. App. 26, 285 S.E.2d 749, 1981 Ga. App. LEXIS 2860 (1981). When cockfighting was staged on the defendant’s property on which an arena and bleachers were erected, the defendant was collecting the admission fees, and gamecocks with spurs and other fighting equipment were found on the premises, the evidence was sufficient to show that the defendants were involved in the operation of organizing a cockfight and were guilty of both cruelty to animals and commercial gambling. Morgan v. State, 195 Ga. App. 52, 392 S.E.2d 715, 1990 Ga. App. LEXIS 419 (1990), cert. denied, No.
S90C0870, 1990 Ga. LEXIS 686 (Ga. Apr. 12, 1990). Circumstantial evidence, including testimony of witnesses who heard an injured dog yelping and howling and saw it running away, saw defendant standing with a rifle in defendant’s hand, and found the dog with a gunshot wound in its ear, was sufficient to support defendant’s conviction. Willis v. State, 201 Ga. App. 182, 410 S.E.2d 377, 1991 Ga. App. LEXIS 1255 (1991). When the evidence showed without question that defendant was responsible for the care and feeding of horses, necessary elements of the offense of cruelty to animals were proved by the state’s establishment that the horses were neglected and were suffering. Tiller v. State, 218 Ga. App. 418, 461 S.E.2d 572, 1995 Ga. App. LEXIS 751 (1995). Evidence was sufficient to support finding of guilt for cruelty to animals by aiding and encouraging a cock fight in violation of O.C.G.A. § 16-12-4. Chaney v. State, 232 Ga. App. 297, 500 S.E.2d 416, 1998 Ga. App. LEXIS 656 (1998). Evidence was sufficient to support a conviction for cruelty to animals as: (1) the defendant owned 16 pit bull dogs and one boxer which were found living in defendant’s backyard in 30 degree weather, with inadequate shelter, and with more than one inch of water and mud covering the yard; and (2) there was strong circumstantial evidence that defendant bred the dogs for fighting. Stephens v. State, 247 Ga. App. 719, 545 S.E.2d 325, 2001 Ga. App. LEXIS 96 (2001). Evidence that a sheriff’s deputy and a livestock inspector found cows confined without water or feed in a small pen on property defendant and defendant’s spouse owned, and that the animals appeared to be suffering because they had no food or water, was sufficient to sustain defendant’s conviction for violating O.C.G.A. § 16-12-4(b) even though the state did not prove willful neglect. Cotton v. State, 263 Ga. App. 843, 589 S.E.2d 610, 2003 Ga. App. LEXIS 1347 (2003), cert. denied, No. S04C0496, 2004 Ga. LEXIS 145 (Ga. Feb. 16, 2004). Defendant’s conviction for aggravated cruelty to animals was supported by evi-
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dence that the defendant was aware of the presence of at least one dog before setting the residence on fire. Lonon v. State, 348 Ga. App. 527, 823 S.E.2d 842, 2019 Ga. App. LEXIS 43 (2019). Direct evidence supported conviction. - Evidence was sufficient to establish that the defendant killed a neighbor’s dog without justification because the defendant had previously told the neighbor that the defendant shot and killed the dog; pursuant to former O.C.G.A. § 24-1-1(3), those prior admissions were direct evidence that the defendant killed the dog. Futch v. State, 314 Ga. App. 294, 723 S.E.2d 714, 2012 Ga. App. LEXIS 181 (2012). Circumstantial evidence supported conviction. - Circumstantial evidence was sufficient to support the defendant’s conviction for cruelty to animals in violation of O.C.G.A. § 16-12-4(b) for killing a neighbor’s dog because there was evidence that the defendant had a proclivity to kill dogs on the defendant’s property, the defendant killed a dog around the time frame that the neighbor’s dog went missing, and the neighbor’s dog never expressed any aggressive behavior towards other animals. Futch v. State, 314 Ga. App. 294, 723 S.E.2d 714, 2012 Ga. App. LEXIS 181 (2012). Defendant was properly convicted for arson in the second degree and cruelty to animals, where the essential elements of each of the crimes differed, and the state carried its burden of proving the distinct elements of each crime. Motes v. State, 189 Ga. App. 430, 375 S.E.2d 893, 1988 Ga. App. LEXIS 1424 (1988). Merger. - Two counts of aggravated cruelty to animals should have been merged as the injuries to the dog’s jaw and hip occurred as part of a single transaction, without a deliberate interval separating the blows. Rozier v. State, 365 Ga.
App. 178, 877 S.E.2d 855, 2022 Ga. App. LEXIS 410 (2022). Facts supporting entry of plea. - There was a sufficient factual basis under Ga. Unif. Super. Ct. R. 33.9 to support the defendant’s nolo contendere plea to two counts of animal cruelty, in violation of O.C.G.A. § 16-12-4(b), based on a statement at the plea hearing from the defendant’s counsel that due to the defendant’s medical conditions of degenerative joint disease and diabetes, the defendant was unable to care for the large number of animals on the property alone. Johnson v. State, 282 Ga. App. 464, 638 S.E.2d 873, 2006 Ga. App. LEXIS 1422 (2006). Conditions of negotiated plea agreement unappealable. - Defendant’s entry of a nolo contendere plea to two counts of animal cruelty, in violation of O.C.G.A. § 16-12-4(b), and the defendant’s acceptance of the conditions of the negotiated plea agreement in open court which included restrictions on the number and type of animals that the defendant could own and the time limit within which animals on the defendant’s property were to be relocated, constituted a waiver of the right to challenge the issue of the conditions of the sentence on appeal. Johnson v. State, 282 Ga. App. 464, 638 S.E.2d 873, 2006 Ga. App. LEXIS 1422 (2006). Procedure for county’s recoupment of costs for impoundment of dogs. - Dog owners were not entitled to notice pursuant to O.C.G.A. § 4-11-9.4 because the county sought recoupment of the county’s costs of impounding the dogs under O.C.G.A. § 4-11-9.8(a) as part of an investigation of the owners’ violations of the animal cruelty statute, O.C.G.A. § 16-12-4. Bramblett v. Habersham County, 346 Ga. App. 511, 816 S.E.2d 446, 2018 Ga. App. LEXIS 399 (2018).
OPINIONS OF THE ATTORNEY GENERAL Cockfighting. - Cockfighting constitutes cruelty to animals and is not exempt from prosecution under the guise of “scientific research” by virtue of the fact
that blood or tissue samples are taken from some birds and sent to a laboratory for disease testing. 2003 Op. Att’y Gen. No. 2003-7.
RESEARCH REFERENCES Am. Jur. 2d. 4 Am. Jur. 2d, Animals, §§ 23 et seq., 27 et seq., 31 et seq. C.J.S. 3B C.J.S., Animals, § 198 et seq. ALR. What is “infamous” offense within constitutional or statutory provision in relation to presentment or indictment by grand jury, 24 A.L.R. 1002. Constitutionality of statute to prevent cruelty in trapping animals, 79 A.L.R. 1308. Indefiniteness of penal statute or ordinance relating to cruelty, similar offenses, against animals, 144 A.L.R. 1041. Civil liability of landowner for killing or injuring trespassing dog, 15 A.L.R.2d 578. Law as to cats, 73 A.L.R.2d 1032; 8 A.L.R.4th 1287; 55 A.L.R.4th 1080; 68 A.L.R.4th 823. What constitutes statutory offense of cruelty to animals, 82 A.L.R.2d 794.
Measure, elements, and amount of damages for killing or injuring cat, 8 A.L.R.4th 1287. Applicability of state animal cruelty statute to medical or scientific experimentation employing animals, 42 A.L.R.4th 860. What constitutes offense of cruelty to animals - modern cases, 6 A.L.R.5th 733. Validity, construction, and application of criminal statutes and ordinances to prosecution for dogfighting, 68 A.L.R.6th 115. Validity, construction, and application of statutes and ordinances to prosecution for cockfighting, 69 A.L.R.6th 207. Construction and application of Horse Protection Act of 1970 (15 USCS § 1821 et seq.), 131 A.L.R. Fed. 363. Animal Abuse or Cruelty as Constituting Crime of Domestic Violence, 86 A.L.R.7th 3.