author: Jenkins,

text:
    8063.
    LAZENBY v. CITIZENS BANK.
    The charge of the court having, as a whole, properly submitted to the. jury the controlling issues, involved, under correct principles of law, the inaccuracy and immateriality which might exist in the portions excepted to can not work a reversal, where it appears that the jury could not reasonably have been misled thereby.
    Decided May 3, 1917.
    Complaint; from Warren superior court—E. T. Shurley, judge pro hac vice. November 29, 1916.

      L. D. McGregor, for plaintiff. E. P. Davis, for defendant.
   Jenkins,

J. B. A. Lazenby brought suit against the Citizens Bank, alleging, in substance, that by the terms of his purchase from the defendant of a certain parcel of land, it was agreed between the parties to the sale that if the tenant of the land so purchased should make as many as ten bales of cotton during the year 1915, the purchaser should receive five- bales thereof, as representing the rent for that year. He alleged that the tenant, Alfred Evan's, did make and deliver to the defendant, during the year, thirteen bales of cotton, and by reason of that fact he became entitled to the value of the five bales-of cotton, to wit, $300, less a credit thereon of $44.88, which it was admitted had been paid.’ The defendant admitted the contract of purchase and sale of the land at the price alleged, to wit, $3,500, and admitted further that under certain conditions of the agreement, the plaintiff was to have received the rent from said land for the year 1915, but . in its answer it denied that the conditions of the contract were those alleged by the plaintiff in his petition, and set up that the conditions under which he was to receive the five rent bales were: that the said tenant, Alfred Evans, should during the said year, not only make a sufficient amount to pay the indebtedness owing the plaintiff, amounting to $250, furnished him for the operation of the said bargained land, but that the said tenant should also first pay the defendant the further sum of $250, advanced by it to him, for the operation of another and different tract of land, not owned by the defendant and not involved in the said sale, and also that said tenant was to pay the defendant the additional ’sum of $142, furnished him by it for guano; that all of the said sums were to be paid to the defendant before the said five bales of rent were to go to and belong to the plaintiff; and that in that event only was the plaintiff to receive the five bales of rent for the year 1915. On the trial of the case there was positive testimony by the plaintiff, sustaining his contentions as to the terms of the contract; and testimony equally emphatic was given for the defendant, sustaining its contentions as what the terms of the agreement were. The jury found a verdict in favor .of the defendant, and the plaintiff excepts, assigning error upon the refusal of the judge to grant his motion for a new trial, based upon general grounds and upon certain grounds assigning error in the charge of the court.

1. There being evidence to authorize the verdict, this court has no jurisdiction to interfere therewith upon any of the grounds taken in the original' motion for a new trial. Edge v. Thomas, 9 Ga. App. 559 (71 S. E. 875).

-2. The first ground of the amendment to the motion for a new trial assigns error on the failure of the judge to charge the jury that the burden of proof would shift from the plaintiff to the defendant because the defendant had pleaded in its answer an affirmative defense, the burden of proving which was by law placed upon it. We think the charge of the trial judge upon the burden of proof was correct and adequate. The burden of proof generally lies upon the party asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential. Civil Code (1910), § 5746. “What amount of evidence will change the onus or burden of proof is a question to be decided in each ease by the sound discretion of the court.” Civil Code (1910), § 5747. In the case of Clark v. Cassidy, 64 Ga. 662, it was held that a charge of the court should state what testimony would shift the onus, rather than when it would be changed; for the reason that the latter expression would intimate an opinion as to the sufficiency of the proof. It has been held many times by our courts that in the absence of a timely and appropriate request to charge, it will not be held reversible error for the judge to omit to instruct the jury upon the burden of proof. Small v. Williams, 87 Ga. 681 (6), 686 (13 S. E. 589); Southern Ry. Co. v. Wright, 6 Ga. App. 172 (7), 184 (64 S. E. 703); Central of Ga. Ry. Co. v. Manchester Mfg. Co., 6 Ga. App. 254 (2), 257 (64 S. E. 1128); Hickman v. Bell, 10 Ga. App. 319 (2), 320 (73 S. E. 596); Whittle v. Central Ry. Co., 11 Ga. App. 257 (74 S. E. 1100). But it has also been held that if thé .judge does charge the jury upon this subject, he must do so correctly. Cox v. McKinley, 10 Ga. App. 492 (73 S. E. 751); Brooks v. Griffin, 10 Ga. App. 497 (73 S. E. 752). Ordinarily the burden of proof lies upon the plaintiff, who, alleging certain facts to exist, claims a right to recover against the defendant; but when, in such a case, the defendant comes in and admits the-prima facie case as stated by the petition, and sets up matters in avoidance, then the defendant is the party who asserts the truth' of the facts so set up, and the burden in such a. ease is shifted on him to establish the facts so pleaded; failing to do which the plaintiff is, without more, entitled to a verdict. Western & Atlantic B. Co. v. Brown, 102 Ga. 13 (29 S. E. 130); Hunter v. Sanders, 113 Ga. 140 (38 S. E. 406); Brunswick R. Co. v. Wiggins, 113 Ga. 842, 845 (39 S. E. 551, 61 L. R. A. 13); Atlanta Suburban Land! Corp. v. Austin, 122 Ga. 374 (50 S. E. 134); Hawkins v. Davie, 136 Ga. 550 (71 S. E. 873); Martin v. Thrower, 3 Ga. App. 784 (7), 791 (60 S. E. 825). It will be observed that in the rule we have just stated, in order for the burden of proof to be shifted, the admission of the defendant must show a prima facie case in favor of the plaintiff. In this case the answer does not admit the allegations of the plaintiff relating to the conditions of the contract by which the defendant would be rendered prima facie liable, and it therefore leaves the burden of proof to establish the case as a whole upon the plaintiff. Generally the burden of proof rests where the pleadings originally placed it. Eawlcins v. Davie, supra. And where the presiding judge correctly charges the jury in regard to the general burden of proof, he is not required, as an essential part of his charge, to discuss the shifting of the burden as to particular points of contest made by the evidence during the progress of the ease, and it will not be held error that he neglects to do so. And even in a case where a charge on such'a subject would be appropriate, it should be duly requested. Hawkins v. Davie, supra.

3. The second ground in the amendment to the motion for a new trial assigns error upon the ground that one of the contentions of plaintiff was that by a waiver of the landlord’s lien for the rent the defendant had been secured for the $350 furnished by it to the tenant to make the crop on the other tract of land, of which it was not the owner, and also that the item for guano furnished by the defendant to the tenant was to be paid by the tenant from the proceeds of the cottonseed; and the plaintiff in error says that the judge, in stating the contentions of the parties, failed to state these as made by the plaintiff, and assigns such omission as error, prejudicial to his case before the jury. The contentions referred to in this assignment of error were not made in the petition, and were not made as a ground of substantive right of re-eovery, but testimony from both parties that such statements were made by the defendant at the time of the agreement appears in the brief of evidence, which, as we understand, was submitted for the purpose of strengthening and corroborating the plaintiff’s contentions as to what constituted the terms and conditions of the agreement. It does not appear from the charge of the court that the trial judge in any wise undertook to sum up the evidence submitted by the parties. This, under the law, it was his privilege, but not necessarily his duty, to do. Shiels v. Stark, 14 Ga. 429; Wright v. Central Railroad & Banking Co., 16 Ga. 38; Cox v. State, 32 Ga. 765; Bray v. State, 69 Ga. 765; City & Suburban Ry. Co. v. Findley, 76 Ga. 311. When the trial judge sees proper to sum up in the charge the testimony submitted, while it is not necessarily incumbent on him to refer to every material part of the evidence, yet in so doing he should include all that might be important, so far as is necessary to a fair and impartial statement of the evidence adduced by each of the parties. Wright v. Central Railroad & Banking Co., supra. But where, as in this case, no such attempt was made, the rule we have just indicated can not have application.

4. The third ground assigns error upon the following charge of the court: “I charge you if you should believe the contention of the defendant in this case, and that it was not the agreement to deliver to Mr. Lazenby five bales of cotton, and you should believe that the tenant, Alfred Evans, owed the Citizens Bank $500 on a note, together with $140 as a guano note, and that Mr. Lazenby took this land and was to receive five bales of cotton after the indebtedness of the bank was paid by Alfred Evans, then I charge you Mr. Lazenby would not be entitled to recover.” (a) It is urged for the plaintiff in error that under this portion of the charge the defendant was not compelled or required to prove by evidence the contentions on which it relied, but the jury would have a legal right to find for the defendant if they should merely believe the contentions of the defendant, regardless of the question of proof. Counsel for the plaintiff in error correctly states the principle of law which requires the jury to be governed by the evidence in the pase, and which forbids a finding based upon mere belief in the contentions of parties without evidence in support thereof. But construing the charge as a whole, as it is our duty to do, our opinion is that the necessary and only reasonable import of this portion of the charge relates to the contentions of the defendant as made by the evidence in the ease, especially as the portion of the charge here excepted to was given by the judge as being the contention of the defendant, in contradistinction to the contention of plaintiff, which he had just stated, and in which preceding portion of the charge it was in terms stated that the finding of the jury on those contentions was to be based upon the. evidence in the case. Construing, as we must, these two portions of the charge together, we think the interpretation we have given is the. only meaning which could have reasonably been intended, and that the jury could not have been misled thereby. And then, too, there are other portions of the charge in which proper instructions were given relating to the province of the jury in regard to the evidence, the rules governing them in regard to the credibility of witnesses, and the law as to the preponderance of evidence, in all of which it is clearly indicated that the jury, in their finding were to be governed by the evidence under the rules of law given by the court. It has been settled by numerous decisions in this State that mere verbal inaccuracies in a charge which are not calculated to mislead the jury or obscure the meaning of the court will not cause a new trial. Savannah, Augusta & Northern Ry. Co. v. Williams, 133 Ga. 679 (66 S. E. 942); Atlantic Coast Line R. Co. v. Jones, 132 Ga. 189 (7), 198 (63 S. E. 834).

(6) The plaintiff in error further excepts to this portion of the charge as follows: “ Said charge was misleading, contradictory, and incomprehensible, because the judge says therein, ‘if the jury should believe that there was no agreement to deliver five bales of cotton to Lazenby, then he (Lazenby) would not be entitled to recover,’ and further on in said charge as above quoted, the judge says in substance, that ‘If the jury should believe that Lazenby took this land and was to receive five bales of cotton after the- indebtedness was paid by Alfred Evans, that Lazenby would not then be entitled to recover.’ The jury under this charge was prohibited from finding in behalf of the plaintiff.” While we think that the trial judge' had previously in his charge well and fairly stated the contentions of each 'of the parties as shown by the pleadings, it is true that in the exception now quoted the issue is not fully and clearly stated. But we differ with counsel in his interpretation that the jury were there told that if they “should believe that there was no agreement to deliver five bales of cotton to Lazenby, then he (Lazenby) would not be entitled to recover;” although such a statement would have been true, and the only impropriety in so .stating would lie in the fact that the only issue involved was as to the condition on which such promise was made. But we think the intervening portion of this extract from the quoted charge must be taken to qualify the interpretation given by counsel, so as to mean that if the $500 and the $141 were due the bank, and that when Lazenby took the land he was to receive the five bales of cotton after that indebtedness was paid, he conld not recover. Under the undisputed evidence as to the amount of cotton received and the price obtained therefor, this would be true. The court having previously clearly and fairly stated the different contentions of parties, we do not think a lack of clarity which might exist in the excerpt here complained of should void the verdict, as we do not see that any false impression, harmful to defendant, could have been obtained therefrom.

5. The fourth and last objection made to the charge relates to the following language: “But if you should believe that Mr. Fitzpatrick, the agent of the bank, did not make the trade with Mr. Lazenby that he would deliver him five bales of cotton in the event this tenant made ten bales of cotton, then I charge you Mr. Lazenby would not be entitled to recover the five bales of cotton, or the value thereof, unless you should further believe that Mr. Fitzpatrick was to let him have the land for $3,500 plus an amount sufficient to cover the five bales of cotton as rent, and an amount sufficient to cover the $250 which Mr. Lazenby contends was due the bank.” The error complained of consists in the latter portion of this excerpt, which it is argued was unauthorized either by the pleading or the evidence. We agree with counsel that the plaintiff made no such additional contention as the latter portion of the charge sets forth, but as the contention he did make had been fully, clearly, and fairly presented, and as the excerpt complained of in no way altered the same or .detracted therefrom, or gave to the defendant any right or benefit, we could not say that the inapplicability of this portion of his instructions should render the verdict invalid. It sought to give to the party now complaining a right not held or claimed by him, but in no wise affected the right which he did claim, and which was fairly and fully submitted to the jury-under the correct rules of law. It has very often been held by the Supreme Court and by this court that-an irrelevant charge will not cause a new trial, where it does not appear to have been prejudicial to any rights of the parties, and was not likely to mislead the jury as to the true issues of the ease. 1 Long v. Gilbert, 133 Ga. 691 (66 S. E. 894).

Able counsel for plaintiff in error has presented with much force his contentions in this case, and we have dealt with the propositions submitted with fullness and at considerable length, in the endeavor to disclose the reasons which have governed us in our search for the the proper determination of the questions involved.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.


source: Caselaw Access Project

author: Broyles, P. J.

license: Public Domain

text:
    8212.
    Morris, sheriff, v. First National Bank of Valdosta.
    Decided May 3, 1917.
    Money rule; from Berrien superior court—Judge Thomas. September 26, 1916.

      W. B. Smith, for plaintiff in error.

      J. D. Lovett, Patterson & Copeland, contra.
   Broyles, P. J.

1. It does not appear that the discretion of the trial judge, in refusing to grant a continuance in the case, was abused.

2. Where money is in the hands of an officer, he may pay it over to the plaintiff by whose process it was raised, unless other claimants deposit their liens with him. Notice to retain it, unaccompanied by the lien, is insufficient. Civil Code, § 5348; Strickland v. Smith, 53 Ga. 80.

(a) In this case it appears that at the time of the levy and sale of the property under the execution of the defendant in error, there were two senior executions, based upon older judgments. There was evidence showing that one of these executions was in the possession of the sheriff at the time of the sale of the property. This execution, however, was not in evidence or accounted for, and, accordingly, can not be considered. Glenn v. Black, 31 Ga. 393 (1, 2). As to the other senior execution on which the fund raised by the sale was claimed, there was no positive evidence that it was in the sheriff’s hands at the time of the sale, or at the time after the sale when the plaintiff in ñ. fa. requested the sheriff to comply with the terms of the sale. After the sale, when the plaintiff in fi. fa. had bid in the property levied on under the execution in his favor, had offered to pay to the sheriff all the costs due, and had requested that the balance of the purchase price be credited on his execution, it was the duty of the sheriff to comply therewith and to make a deed in accordance with the sale, and it was then too late for other executions, although older, to claim the fund. Glenn v. Black, supra; Atlanta Trust & Banking Co. v. Nelms, 115 Ga. 53, 63, 64 (41 S. E. 247).

3. Under the record and the evidence, documentary and oral, in the bill of exceptions, there was no issue of fact to be passed upon by the jury, and the court did not err in directing a verdict for the plaintiff.

Judgment affirmed.

Jenkms and. Bloodworth, JJ., concur.


author: Wade, C. J.

text:
    7715.
    Hicks v. The State.
    Decided May 11, 1917.
    Indictment for burglary; from Fulton superior court—Judge Hill. August 15, 1915.

      W. B. Ham'mond, for plaintiff in error.

      Eh. T. Williams, solicitor-general, A. L. Ivey, contra.
   Wade, C. J.

1. Under the ruling of the Supreme Court in this ease, in response to questions certified to that court, the juvenile-court act of 1915 (Acts of 1915, p. 35) does not deprive the superior court of a county in which it is applicable of jurisdiction to try a defendant for "burglary, although he may have been less than sixteen years of age at the time of the alleged commission of the crime. Hicks v. State, 146 Ga. 706 (92 S. E. 216).

2. The court therefore did not err in overruling a plea to the jurisdiction, based upon the juvenile-court act, and in conducting the trial according to established procedure appropriate in such cases; and there is no merit in any of the special grounds of the motion for a new tidal.

3. The evidence amply authorized the verdict of guilty, and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

George and Lulee, JJ., concur.


author: Bloodworth, J. 1. George, J.,

text:
    7848.
    SPENCE v. THE STATE.
   Bloodworth, J. 1.

In this case the indictment is similar to that in the case of Stapleton v. State, 19 Ga. App. 36 (90 S. E. 1029), and the questions raised as to the disqualification of the presiding judge and of the solicitor-general, the legality of the term of court, and the sufficiency of the indictment are controlled by the rulings in that case. See also Griffin v. State, 18 Ga. App. 402 (89 S. E. 625).

2. Under the decision in the Stapleton ease, supra, the court did not err in refusing, on motion of the defendant, to ask the jurors whether or not they were related by blood or marriage to depositors in the Bank of Whigham.

3. In the trial of a criminal ease, where the jurors present have all been put upon the defendant, and it becomes necessary to procure other jurors, it is entirely within the discretion of the presiding judge to draw the tales jurors from the jury-box, or to order the sheriff to summon them from among persons qualified by law to serve as jurors. Penal Code (1910), §§ 862, 863, 996; Ford v. State, 12 Ga. App. 228 (3) (76 S. E. 1079).

4. A juror who had answered the voir dire questions, and was put upon the court as a trior, and testified that he had no fixed opinion that would not yield to testimony, without regard to anything that he might have heard, was properly held competent. Thomas v. State, 144 Ga. 298 (2) (87 S. E. 8); Norton v. State, 137 Ga. 842 (74 S. E. 759). “But this is unimportant, for the finding of the judge upon the subject of a juror’s prejudice or bias, or the absence of disqualifying prejudice or bias, is not subject to review.” Redfearn v. Thompson, 10 Ga. App. 551 (4), 556 (73 S. E. 949); Turner v. State, 114 Ga. 421 (40 S. E. 308).

5. Letters signed “O. C. Spence, President,” the introduction of which is complained of in the 9th and 10th grounds of the motion for a new trial, and which were introduced to show the official capacity in which the defendant was acting, related to the charge in the second count of the indictment, and, the court having withdrawn this count from the consideration of the jury, and no subsequent motion having been made to gxclude these letters, their admission could not have been harmful to the defendant, under the qualifications in the charge of the court relative to the evidence introduced to support the second cpunt; and especially is this true in view of other evidence, unobjected to, as to the same fact.

6. The court did not err in admitting in evidence the minutes of the annual meeting of the stockholders of the Bank of Whigham, held January 4, 1913, showing the election of O. C. Spence as a director; the minutes of the special meeting of the shareholders of the bank, held September 15th, 1913, showing that the call was issued by Vice-President O. O. Spence, and showing that the number of the board of directors was reduced from seven to five, and that O. C. Spence was retained as one of the five; sheets 1, 2, and 3 of the by-laws of' the Bank of Whigham, showing that the bank was to be governed by a board of directors elected by the stockholders, and providing for election of president, vice-president, and cashier, by the board of directors; and the page of the general ledger of the Bank of Whigham, dated Eebruary 11, 1915.

7. The letter addressed to L. A. Boyd, dated October 23, 1914, and signed “O. C. Spence, Vice-President,” was properly admitted in evidence. This, along with the evidence of several witnesses that the defendant was taking part in the conduct of the bank at this time, was relevant to show the conduct of the defendant, and that he was at that time holding himself out as an officer of the bank.

8. The cashier’s checks referred to in the 15th ground of the motion for a new trial were not only relevant testimony, but were not inadmissible for the reasons assigned.

9. The evidence referred to in the 17th ground of the motion for a new trial having been properly admitted in evidence, the court rightly refused to rule it out for the reasons alleged in that ground.

10. After the page from the general ledger of the_bank had been admitted in evidence, there was no error harmful to the defendant in allowing a witness to read in the hearing of the jury a list of the assets of the bank as listed on that page.

11. Grounds 19 to 39, inclusive, ground 41, grounds 43 to 51, inclusive, and grounds 53, 54, 55, and 63 of the motion for a new trial are all based upon alleged errors in admitting testimony of W. T. Crawford, who was allowed to testify as to how the books of the Bank of Whigham were kept, and as to the irregularities in the books, and the meaning of certain items therein, and to giye his opinion that at a'certain time the assets of the bank were impaired, and that the bank was insolvent at a certain date, and to give his opinion of the value of certain notes which he found in the bank. That he qualified as an expert on banking is not denied. The code of this State contains the following: “The opinions of experts, on any question of science, skill, trade, or like questions, are always admissible; and such opinions may be given on the facts as proved by other witnesses.” Penal Code, § 1048; Civil Code, § 5876. “The testimony of an expert, as to his opinion as such, is admissible upon any matter, if the opinion given related to scientific or technical knowledge.” McClendon v. State, 7 Ga. App. 784 (68 S. E. 331). “A duly qualified expert may testify as to the meaning of an entry in books concerning business transactions, where the meaning of such entry is not apparent to the average juror.” 5 Enc. Ev. 553. “Where facts can be ascertained only by an examination of a large number of details on books of account, it is permissible for an expert accountant, who has made an examination of the books and figures, to testify as a witness and to give a summarized statement of what the books show, provided the books themselves are made accessible to the court and to the parties. Moreover, any error in the admission of evidence of this kind is cured where the books themselves are introduced in evidence and it is admitted that they show the same facts testified to by the witness.” Cabaniss v. State, 8 Ga. App. 130 (14) (68 S. E. 850). “Solvency or insolvency is a. matter admitting of opinion evidence.” Cabaniss v. State, supra, 130 (17), 145; State v. Cadwell, 79 Iowa, 432 (3), (4) (44 N. W. 700).

12. The 38th ground of the motion for a new trial complains that the court erred in allowing “the introduction of the entries of. the cash book and the blotter book of the Bank of Whigham of the date of June 9, 1913,” the ground of objection being that “it had not been shown that this defendant made the entries in them, and it had not been shown that he was an officer in said bank at-that time.” It was not necessary to prove that the defendant in person made the entries referred to, before they would be admissible; and the evidence from the minutes of the bank shows that O. C. Spence was elected a director on January 14, 1913, and was re-elected on January 13; 1914. The court therefore did not commit error in allowing in evidence the books referred to.

13. Ground 40 of the motion for a new trial alleges error because “the court permitted the State to introduce in evidence the sheet showing the individual account of O. C. Spence in the Bank of Whigham, as of December 30th, 1912.” As there is nothing to show what the sheet referred to contained, and each ground of a motion for a new trial must be complete within itself, there is not enough in this ground for this court to determine whether or not the introduction of the sheet was prejudicial to the plaintiff in error.

14. The transaction referred to in ground 42 of the motion for a new trial occurred on January 13, 1913, the day before the defendant was elected a director, and is relevant as a part of the testimony to show the condition of the bank at that time. The expert witness was properly allowed to testify as to the “remittance sheet” referred to in this ground.

Decided May 11, 1917.

Indictment for fraudulent insolvency of bank; from Grady superior court—Judge Cox. August 21, 1916.

M. L. Ledford, Rosco e Lulce, for plaintiff in error.

R. 0. Bell, solicitor-general, F. A. Hooper & Son, W. V. Ouster, contra.

15. The letter referred to in ground 52 was not inadmissible for the reasons urged.

16. The cashier’s check referred to in ground 56, dated October 16, 1913, was properly admitted in evidence, the minutes of the bank showing that at that time the defendant was a director thereof. The bank expert was properly allowed to testify as to the matters referred to in this ground.

17. The assignments of error referred to in grounds 57, 58; and 59, in reference to the introduction of certain checks, and the error assigned in ground 61 as to the value of certain stocks, are not sufficiently definite to show whether their admission in evidence was harmful to the plaintiff in error; and no legal reason was urged against the admission of this testimony.

18. There was no error harmful to the defendant in admitting the testimony complained of in the 59th ground of the motion.

19. A portion of the evidence objected to in ground 62, relating to the expenses of the bank for 1913, was clearly relevant. Even granting that the remaining portion was inadmissible, the objection went to the evidence as a whole, and the objection was properly overruled.

20. None of the remaining grounds of the amended motion for a new trial being specifically urged in the brief of counsel for the plaintiff in error, ' they will be treated as abandoned. Muse v. Hall, 18 Ga. App. 651 (3) (90 S. E. 222); Youmans v. Moon, 11 Ga. App. 66 (4) (74 S. E. 710); Jefferson v. Perry, 18 Ga. App. 690 (90 S. E. 366) ; James v. Boyett, 19 Ga. App. 157 (91 S. E. 219) ; Rounsaville v. Camp, 19 Ga. App. 336 (91 S. E. 446); Mills v. State, 19 Ga. App. 623 (91 S. E. 918).

21. There being proof of insolvency of the bank, the evidence authorized the verdict.

Judgment affirmed.

Wade, O. J., concurs. George, J., concurs specially.

George, J.,

concurring specially. While the decisions of this court, hereinafter referred to, are controlling, I can not agree that those decisions are sound, and I am unable to concur in certain conclusions reached by my colleagues. The defendant was convicted under an indictment charging fraudulent insolvency of a chartered bank, as defined in section 204 of the Penal Code of 1910. The solicitor-general who prosecuted the case was a depositor in the alleged insolvent bank; the presiding judge was related within the third degree to a named depositor in said bank; several of the grand jurors who returned the bill of indictment against the accused were related within the prohibited degrees to certain depositors of said bank; and the court refused, upon timely motion of counsel for the accused, to inquire of the trial jurors whether or not they were related by blood or marriage to the depositors in said bank. -1 can not agree to the proposition that one who is related within the prohibited degrees to a depositor of an insolvent bank is competent to sit as a juror upon the trial of. an officer of such bank charged with violating the provisions of section 204 of the Penal Code. It must be admitted that this precise question is foreclosed against the accused by the decision in Stapleton v. State, 19 Ga. App. 36 (91 S. E. 1029), and by the majority opinion in Griffin v. State, 18 Ga. App. 402 (4) (89 S. E. 625). The opinion of the dissentient judge in the case last cited seems to be conclusive. To what is there said the writer wishes to add that section 204 of the Penal Code was enacted primarily for the benefit of the public,—that is, creditors, including depositors. Protection to this latter class of creditors was the primary purpose of the legislature in the passage of this statute. Stockholders, as such, are amply protected against the criminal acts of the officers and directors of a chartered bank by the several provisions of our code.

In this case the court charged the jury as follows: “The stock of a bank is a liability that should be included and taken into account in determining the question of its solvency.” This, in the opinion of the writer, is an erroneous statement of the law. It must be admitted that in the Stapleton case, supra, this precise question was also ruled upon adversely to the contention of the accused, although in the opinion in that ease the question is not discussed. The majority opinion in the case at bar treats the assignment of error upon this charge as having been abandoned. The 20th division of the opinion is as follows: “None of the remaining grounds of the amended motion for a new trial being specifically urged in the brief of counsel for the plaintiff in error, they will be treated as abandoned.” The exception to the portion of the charge quoted is one of the “remaining grounds of the amended motion for a new trial.” If the question were not one of such vital importance, I would be disposed to agree .with my brethren in the conclusion, that counsel for the plaintiff in error have not specifically urged before this court the complaint made as to the charge of the court quoted above. If, however, the tendency is to disregard purely technical objections when urged by defendants in the trial of criminal cases, much more should the reviewing court refuse to sanction technical objections when urged by the State against the consideration of a vital and controlling question involved in the case. While counsel for the present plaintiff in error have not -in their briefs specifically argued the exception taken to the charge of the court under consideration, this failure of counsel should be interpreted to mean that they regard the question as fully presented to this court in the companion case of Stapleton v. State, supra. They expressly state the contention and disclaim any intention to abandon it. It is proper to note that counsel for the present plaintiff in error were also counsel for the defense in the Stapleton case, in which the question here referred to was fully argued. I therefore think that we should consider this exception.

Does this charge lay down a correct test by which the solvency of a chartered bank is to be determined ? Is a bank solvent only when its assets are sufficient to pay not only its creditors, including depositors, but its stockholders as well? If this rigid test is to be applied, every bank, immediately upon its organization, will be found to be insolvent. Furniture and fixtures and general supplies must be purchased by every bank commencing business. A newly organized bank would hardly, in any case, be able to dispose of its furniture and fixtures, to say nothing of its general supplies, at cost. The officers and directors of a bank usually own a large part of its capital stock. It is stretching the law too far to say that bank officers and directors owning a large percentage of the stock of the bank become criminals the moment its assets fall below its liabilities, including the liability of the bank upon the stock held by such officers and directors. The individual stockholders and the corporation are not one and the same, it is true, but if the officers of a bank, who own practically its entire capital stock, are able to pay, out of its assets, all creditors of the bank, they ought neither to be presumed nor held guilty of the offense declared in section 204 if the assets of the bank are insufficient to pay the stockholders, including themselves. If, on account-of the fraudulent acts of the officials, the assets of the bank are insufficient to pay the general creditors of the bank, including depositors, such officials are criminally liable. If, through the criminal conduct of the officers and directors of the bank, its capital stock is impaired, the stockholder has his recourse against such officials under other sections of our Penal Code. The capital stock, it is true, is both au asset and a liability upon the civil side of the law, but to regard the stock as a liability in determining the solvency of a bank under the Penal Code section referred to is, in the opinion' of the writer, untenable. No consideration of public policy requires such a construction of this section of the code. The stockholders in a banking corporation become such for pecuniary gain to themselves. In no other corporation are stockholders, by any section of the code, given the benefit which the charge of the trial court in this case affords the holders and owners of bank stock. Sound public policy will protect the owner of bank stock no further than the owner of any other corporate stock. He must look for his protection to the embezzlement statutes and other statutes enacted for his benefit, and to the honesty of the officials of his own choosing. Further, an individual is not considered insolvent so long as he is able to pay his creditors. A corporation should not be considered insolvent so long as the corporation is able to pay, out of its assets., including its original capital stock, all of its creditors. The stockholder is in no proper sense a creditor of the bank. He is the owner of a portion of the capital stock of the bank.

For the reasons stated above, I do not think the defendant has had a fair trial. He was entitled to a jury whose kinsmen had lost nothing in the failure of the bank. He was entitled to an instruction by the court to the effect that the bank was solvent if its assets, administered in due course and with ordinary skill and diligence, were sufficient to pay its debts, excluding its stock liability. The decisions in Griffin v. State, and Stapleton v. State, supra, should he reviewed and overruled. See, in this connection, the decision of 'the Supreme Court, in reference to certified questions from this court, in the Griffin case, 142 Ga. 636 (4), 646 (83 S. E. 540, L. R. A. 1915C, 716, Ann. Cas. 1916C, 80).


author: George, J.

text:
    8336.
    DAVIS v. THE STATE.
    1. Section 252 of the Penal Code of 1910 defines two offenses: (1) selling, leasing, renting, or otherwise conveying to another land or the. timber thereon, the title of which is forged, or the grant or any deed or conveyance whereof is forged, knowing the same to be forged; (2) or taking possession of or occupying,or exercising any acts of ownership over any land or timber thereon under any grant, deed, bond, lease or other conveyance which is forged, or any part of the title whereof is forged, knowing the same to be forged.
    2. To “take possession of” any land or timber thereon, as used in the second clause of § 252 of the Penal Code, implies the actual possession of the whole or some part of the land or timber. It is a corporeal act, as distinguished from a mere claim of ownership. Possession is a species of property, distinguished from title or ownership. It may be partially actual and partially ideal. To “occupy” any land or timber thereon, as used in the clause of the section named, implies the actual and corporeal possession of the whole or of a portion of the land or timber. Occupancy is always actual, as distinguished from possession, which may be actual or constructive. Occupancy is never constructive, save in the sense that land may be occupied through the actual possession of another. The “acts of ownership” over any land or the timber thereon, as used in this clause of the code-section, implies and is to be interpreted as acts differing from a mere verbal claim of owner- ■ ship, of like character to taking possession of or occupying lands or timber, or some part thereof.
    3. The indictment in the case at bar charged the accused with the commission of the offense as defined in the second clause of § 252 of the Penal Code, and was sufficient to withstand the demurrer filed thereto. The evidence did not authorize the verdict of guilty, and the trial court erred in overruling the motion for a new trial.
    Decided May 11, 1917.
    Indictment for taking possession of land under forged conveyance, etc.; from Cobb superior court—Judge Patterson. December 37, 1916.

      Barry Wright, for plaintiff in error.

      Herbert Clay, solicitor-general, contra.
   George, J.

Davis was indicted for taking possession of, occupying, and exercising acts of ownership over lot of land 1034 in the 16th district and second section of Cobb county, Georgia. The indictment contained four counts. The State abandoned the first count, the court sustained a demurrer to the fourth count, and Davis was found guilty upon the second and third counts. His demurrer was to the indictment as a whole. . The indictment charged a violation of the second clause of § 353 of the Penal Code of 1910, substantially in the language of the section, and was sufficient to withstand the demurrer. The accused made a motion for a postponement of his trial and for the continuance of his case. He filed a challenge to the array, and made a motion for a new trial, containing, besides the general grounds, exceptions .to several rulings of the court. In the view which we take of the case it is unnecessary to consider any of the questions raised ex; ■cept as to the sufficiency of the evidence. We have concluded that the evidence is entirely insufficient to support the charge that the accused took possession of, occupied, or exercised any acts of ownership over the lot of land described in the indictment. Several witnesses testified that on different dates the accused was in Cobb county, looking after certain lots of land. According to these witnesses he claimed certain lands-in Cobb county, but the record does not disclose that lot of land 1024, described in the indictment, was one of the lots claimed hy the accused. Mrs. Lomax, the prosecu'trix, testified in substance that the accused was in Marietta, Cobb county, on July 21,' 1915. She came to Marietta at his request to look at the land with a view to purchasing it. She was accompanied by her son-in-law. She found the accused at the court-house in Marietta. The accused called an automobile driver and employed the driver to take Mrs. Lomax and her son-in-law out to lot of land 1024. He instructed the driver to show her the particular land which he had “been showing to other people.” The accused did not, in Cobb county, tell her anything about the land. He simply sent her out to see the land. The chauffeur drove Mrs. Lomax out to the land, and procured a resident of the county to point out the lot to her. The accused did not accompany her. The prosecutrix saw the land subsequently on several different occasions, and finally closed the trade for the land in Fulton county, Georgia. The purchase price was paid to Davis in Fulton county. The defendant, in his statement at the trial, contended that he had never been on lot of land 1024, and did not know its location. No witness, so far as the record discloses, ever saw the accused upon the land, or any person upon the land claiming any right of possession under the accused. It is unnecessary to detail the evidence offered in support of the further allegations of the indictment.

Section 252 of the Penal Code of 1910 is as follows:* “If any person shall sell, lease, rent, or otherwise convey to another any land or the timber thereon, the title of which is forged, or the grant or 'any deed or conveyance whereof is forged, knowing the same to be forged; or if any person shall take possession .of or occupy or exercise any acts of ownership over any land or the timber thereon, under any grant, deed, bond, lease, or other conveyance which is. forged, or any part of the title whereof is forged, knowing the same to be forged, such person shall be punished by imprisonment and labor in the penitentiary for not less than one nor more than five years: Provided, that the provisions of this section shall not apply to any person whose title or possession was acquired by him, or those under whom he claims, bona fide and without notice of the fact of such forgery.” The word “possession,” as applied to land, and as used in the code-section quoted, has a fixed and definite meaning. It implies a corporeal act. It can not be construed as a mere claim to land. The word “occupy” is even more specific, and indicates always actual and corporeal possession. It is distinguished from “possession” only in that possession may be partially actual and partially constructive. In order to sustain a conviction under the. indictment in this case, it is necessary to show that the defendant took possession—that is, actual possession— of the whole or some portion of the land described in the indictment, or that he occupied—that is, had physical possession of— some portion or all of the land described in the indictment, or that he exercised acts of ownership over some portion or the whole of the land described in the indictment. It would be sufficient to show that he possessed, occupied, or exercised acts of ownership over the land or some portion thereof, either directly or through another, acting for him as a tenant, lessee, or care-taker. It is insisted by the State that the evidence in the record is sufficient to show that the accused exercised acts of ownership over the land. , At most, he claimed to own the land, desired to sell the land, and sent the prospective purchaser to see the land. It appears that the automobile driver who carried the prosecutrix to see the land was himself unacquainted with the land. He procured a resident of the district to point out the metes and bounds of the lot to the prosecutrix. This driver was not regularly employed by the accused, so far as the record discloses, but, on the contrary, was engaged for this special service only. “Acts of ownership,” as used in this section of the code, certainly imply acts similar in nature and character to the act of taking possesion of or the act o‘f occupying lands. The doctrine of ejusdem generis undoubtedly applies in the .construction of this section. Further, the maxim “Noscitur a sociis” (a word is known from its associates) is also applicable. The section under construction was not intended to define the offense of forgery of deeds, or of uttering forged deeds. These offenses were fully covered by statutes enacted long before the passage of the act codified in this section of the Penal Code (Acts 1882-3, p. 125). The proviso in this section makes it entirely clear that the legislature intended to use the expressions “take possession,” “occupy,” and “exorcise acts of ownership” as practically synonymous. It did not contemplate that a mere verbal claim of ownership, or an attempt to sell, or even the act of selling, any land or timber should fall within the meaning of the second clause of the section. Indeed, the offense defined in the first clause of the section would seem to be conclusive upon that question. None of the acts proved against the accused in this case fall within the statute, and the charge in the indictment, that the defendant “took possession of, occupied, and exercised acts of ownership” over the land, is entirely unsupported by the evidence.

The other errors alleged to have been committed will hardly occur should the State see proper again to put the accused on trial.

Judgment reversed.

Wade, G. J., and Luke, J., concwr.


author: {Vade, C. J.

text:
    7883.
    Weathers v. The State.
    Decided May 11, 1917.
    Indictment for taking possession of land under forged conveyance,, etc .; from Cobb superior court—Judge Patterson. August 23, 1916.
   {Vade, C. J.

1. This case is controlled in principle by the decision-in Davis v. State, ante, 68 (92 S. E. 550). The demurrer was properly overruled, but the evidence did not authorize the verdict. The trial judge therefore erred in overruling the motion for a new trial.

2. In view of the foregoing ruling, it is unnecessary to refer to the various special assignments of error.

Judgment reversed.

George and Luhe, JJ., concur.

Moore & Pomeroy, G. M. Dobbs, J. J. Garland, Little, Powell, Smith' & Goldstein, for plaintiff in error.

Herbert Glay, solicitor-general, contra.


author: Luke, J.

text:
    8338.
    Davis v. The State.
    Decided May 11, 1917.
    Indictment for cheating and swindling; from Cobb superior court—Judge Patterson. December 27, 1916.

      Barry Wright, for plaintiff in error.

      Herbert Glay, solicitor-general, contra.
   Luke, J.

1. A prosecution for cheating and swindling must be had in the county in which the owner of money or goods is deprived of his property by the alleged deceitful means and artful practices. Lowe v. State, 111 Ga. 650 (36 S. E. 856).

2. The evidence in this case shows that the crime (if a crime) was not committed in Cobb county, and, the question of venue being properly before the court, it was error to overrule the motion for a new trial.

Judgment reversed.

Wade, O. J., and, George, J., concur.


author: Geobge, J.

text:
    8360.
    Marshall v. The State.
   Geobge, J.

1. On the trial, on an indictment for the offense of assault with intent to rape, the court charged the jury that “The State must show that the act of the defendant constituted an attempt to have carnal knowledge of the female.” This charge, when considered with its context, is not subject to the exception that it intimated an opinion that “an act” by the defendant had been proved by the State.

2. There was no error in omitting to charge the jury on the law of assault, or assault and battery, these offenses, under the evidence, not being involved. The accused denied that he committed any assault, or assault and battery, upon the female, and the evidence for the State, if credible, proved the felonious assault as alleged in the indictment. See Wade v. State, 11 Ga. App. 411 (5) (75 S. E. 494).

3. Exception is taken to the following charge of the court: “The State insists that the female in this ease was under ten years of age, and therefore incapable of giving consent. I charge you that if you find that the female was under ten years of age, and that there had been an effort on the part of this defendant to have carnal knowledge of her, forcibly and against her will, he would be guilty of an assault with intent to rape. If she had not reached the age of ten years in law she would not be capable of giving consent, and carnal knowledge of her on the part of any one would constitute tlie offense of rape.” The complaint is that the charge authorized dlie conviction of the defendant upon proof of an “effort,” short of a physical assault, to have carnal knowledge of the female; that this and other excerpts from the charge authorized a conviction on proof of an effort to have carnal knowledge of her by mere words of persuasion. The court defined rape as “the carnal knowledge of a female, forcibly and against her will.” The word “effort” could not have been understood by the jury to imply less than a physical act. “There is no word in the English language better understood by the people generally than ‘effort,’ and when told, in a trial for homicide, that an effort had been made to carry out threats, the jury undoubtedly understood the court to mean an attempt.” 3 Words & Phrases, 23, 24.

Decided May 11, 1917.

Indictment for assault with intent to rape; from Dougherty superior court—Judge Cox. December 29, 1916.

R. J. Bacon, R. II. F err ill, for plaintiff in error.

R. G. Bell, solicitor-general, F. A. Hooper, contra.

4. The further assignments of error are without merit. The evidence was sufficient to authorize the conviction of the accused, and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

Wade, G. J., and Luke, J., concur.


author: Wade, C. J. Per Curiam.

text:
    8376.
    GIBSON et al. v. THE STATE.
    1. The ground on which the accused objected to one of the jurors is not supported by the record.
    2-3. The instructions of the court as to the unexplained possession of ^ stolen property and as to the impeachment of witnesses are not subject to the exceptions taken.
    4. There was no evidence that required an instruction on the law of alibi, in the absence of a request.
    5. The inaccuracy in referring to the defendants as “the witnesses” was immediately corrected, and could not have misled the jury.
    6. The court did not err in refusing to exclude the answer of certain witnesses, introduced for the purpose of sustaining a witness attacked as unworthy of credit, that they would believe him on oath, although they had testified that his character was bad.
    Decided May 11, 1917.
    Reiieabing denied July 5, 1917.
    Indictment for burglary, etc.; from Wayne superior court— Judge Highsmith. December 9, 1916.

      W. W. Bennett, for plaintiff in error.

      A. V. Sellers, solicitor-general, J. H. Thomas, contra.
   Wade, C. J.

Gibson and Harper were jointly tried under an indictment charging them with burglary and with larceny from the house of A. J. Gordon. They objected to one of the jurors, before lie had been sworn and before the entire jury was selected, and thereafter moved for a mistrial, upon the ground that the juror had served on the grand jury at a previous term of the court and, as a grand juror,' had found and returned an indictment against J. M. Anderson for the offense of receiving goods alleged to have been stolen by one Julian Anderson, which were described as the property of A. J. Gordon, and in the same manner as in the indictment against Gibson and Harper. Without determining whether the brief of evidence at the former trial of the defendant Harper (reviewed by this court in the case reported in 17 Ga. App. 561), which apparently is attached to the motion for a new trial and is S|3ecified in the bill of exceptions (though not incorporated therein) and referred to in the motion for a new trial (though not identified and attached thereto as an exhibit), is properly before this court for consideration, it is enough to say that neither from the indictments which are made a part of the motion for a new trial, nor elsewhere in the record, does it affirmatively appear that the juror objected to was in fact disqualified because of having heard testimony delivered which tended directly or indirectly to connect the defendants on trial with the commission of the crime with which they were charged, or that the defendants Gibson and Harper had been named or referred to in the testimony offered at the investigation before the grand jury, resulting in said indictment against J. M. Anderson, and hence that the said juror had, by the return of said indictment, formed and expressed an opinion as to the guilt or innocence of the defendants Gibson and Harper. The juror qualified on the. voir dire, and the trial court did not err in refusing to set him aside on motion or in thereafter refusing a mistrial based upon his alleged disqualification. There is therefore no merit in the first three grounds of the amendment to the motion for a new trial.

The instructions of the court complained of in the 4th and 5th grounds of the amendment to the motion for a new trial, which relate to the possession of stolen property unaccounted for, are not subject to the particular exceptions urged, and are in substantial compliance with the law as announced in numerous decisions of the Supreme Court and this court on that subject. See annotations in Park’s Penal Code, § 1010, subject “Possession.”

The charge of the court complained of in the 6th ground of the amendment to the motion for a new trial, touching the impeachment of witnesses, was not misleading, when taken in connection with the entire charge; and besides, no more specific instructions were requested in writing.

There is no merit in the 7th ground of the amendment to the motion for a new trial, for the evidence as to alibi was not such as to exclude the possibility of the presence of either or both of the defendants at the time of the commission of the crime, and there was no request for an instruction on the subject. Gadlin v. State, 13 Ga. App. 660 (79 S. E. 751). See also Smith v. State, 6 Ga. App. 577 (65 S. E. 300); Shaw v. State, 10 Ga. App. 776 (74 S. E. 89); Couey v. State, 11 Ga. App. 415 (75 S. E. 445); Moore v. State, 17 Ga. App. 344 (2) (86 S. E. 822).

The inaccuracy in the charge of the court, complained of in the 8th ground of the amendment to the 'motion for a new trial, in referring to the defendants as “the witnesses,” was immediately corrected and could not have misled the jury.

There is no merit in the 9th ground of the amendment to the motion for a new trial. “An impeached witness may be sustained by evidence going to his character generally.” Surles v. State, 89 Ga. 167 (5), 168 (15 S. E. 38). See also Jackson v. State, 64 Ga. 344 (3); Hart v. State, 93 Ga. 160 (20 S. E. 39). “When a witness has been attacked as unworthy of credit, on account of general bad character, and a witness called to sustain him testifies that his character is bad, but that, notwithstanding this fact, he would believe him on oath, the jury should be allowed to consider this evidence in determining what credit is to be given the attacked witness.” Suddeth v. State, 112 Ga. 407 (4) (37 S. E. 747). See also Taylor v. State, 5 Ga. App. 237 (4) (62 S. E. 1048).

The evidence authorized the verdict, and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

George and Lulce, JJ., concur.

ON MOTION FOR REHEARING.

Per Curiam.

Although the juror objected to served on the grand jury that found the indictment against J. M. Anderson for receiving stolen goods, and therefore heard the testimony of M. J. (Harrison, Mrs. Bessie Harrison, and A. J. Gordon, as to Anderson’s guilt of that charge, and though these same witnesses testified on the former trial of Lonnie Harper (one of the plaintiffs in error) in such a manner as to implicate both of the plaintiffs in error in the commission of the crime now under investigation, there is nothing in the record to indicate that in the investigation before the grand jury of the charge against J. M. Anderson, when the juror who is now objected to as disqualified was present, these witnesses mentioned or referred to either Gibson or Harper—notwithstanding their testimony afterwards delivered on the trial of Harper. No brief of the evidence adduced before the grand jury when the indictment was found against J. M. Anderson by the juror Barlow is attached to the record in this case, and this court would be compelled to base its conclusion upon surmise or conjecture only, should we hold that because the names of the witnesses who afterwards testified to the guilt of Lonnie Harper (one of the plaintiffs in error) wore indorsed on the indictment against J. M. Anderson, they had in fact testified to the same effect and had implicated or referred to Harper in the independent and separate investigation as to the guilt of said Anderson upon an entirely different charge growing out of the same transaction. It may be borne in mind in this connection that the only issue in the case now under review was whether the storehouse belonging to Gordon had been burglarized. Our decision must be based upon the record as made, and not upon conjectures, or upon plausible or even probable conclusions from certain facts in proof which might support such a conjecture or conclusion but not necessarily require or even suggest a logical resulting inference. The fact that M. J. Harrison, a witness against the plaintiff in error, has been himself convicted on another trial of the same offense as these defendants, and his conviction has' been sustained by this court, by no means argues (as contended in the motion for a rehearing) that the conviction of the defendants Gibson and Harper would be a miscarriage of justice, but tends to demonstrate rather that Harrison, Gibson, and Harper all three participated in the crime, of the commission of which separate juries have found them guilty, largely upon the testimony of each other. This, however, is not a matter for consideration by this court, as each case must be determined upon the record in that particular case and not upon the record in some other, even where such other case may involve the same crime.

We have carefully gone through the entire record in this case, and, while appreciating the earnest loyalty of able-counsel in fighting to the last ditch in behalf of his clients, we can but recognize the natural bias in their favor which he properly should and evidently does entertain, and we are unable to see any sufficient reason to conclude that the original judgment in this case should be altered, and therefore the application for a rehearing is denied.

Motion for rehearing denied.


text:
    8448.
    BURNS v. THE STATE.
    1. The indictment sufficiently set forth an offense under that part of section 703 of the Penal Code of 1910 which provides that if any person, by false representation of his own respectability or wealth, shall obtain a credit, and thereby defraud any person of any money or other valuable thing, he shall be deemed a common cheat and swindler. It is therefore immaterial whether the facts alleged constitute an offense under section 713 or section 719.
    2. A party can not, on the ground that he has been entrapped by a witness introduced by him, impeach the witness by proof of a previous contradictory statement, where it was not made to himself or his counsel, and where it does not appear that the statement was made for the purpose of being communicated to him or his counsel.
    3-4. The court did not err in the instructions complained of, and the evidence authorized the verdict.
    Decided May 11, 1917.
    Indictment for cheating and swindling; from city court of Quit-man—Judge Long. December 18, 1916.
    The indictment charged Burns with “the offense of cheating and swindling,” and alleged, in substance, that by false representations of his own respectability and wealth, by falsely representing to William Tremere that he, Burns, was the owner of two mules described, and that they were free from any liens or encumbrances whatsoever, he, Burns, fradulently obtained a credit from Tremere of $425, the purchase price of two described mules sold by Tremere to Burns, which were of the value of $425, and defrauded Tremere out of the last-mentioned mules and their value, by reason of the fact that the mules first described were not free from liens, but were subject to certain executions and mortgages described, which were recorded, and copies of which were attached to the indictment; that the said false and fraudulent representalions imposed upon the credulity of said Tremere, and upon these representations Tremere parted with the possession of the two mules sold by him to Burns, and Burns then and there executed to him a mortgage to secure the purchase-price; that by these representations Tremere was induced to part with the possession of these mules and Burns got possession of them; whereby Tremere sustained loss and damage in the sum' of $425, contrary to the laws of this State, etc. The defendant demurred, on the grounds: (1) The indictment is brought under section 703 of the Penal Code of 1910, whereas the facts alleged show that the acts of the defendant do not constitute an offense under that section, but if they constitute an offense of any kind the" indictment should have been brought under section 713 or section 719. (2) It appears that the executions referred to were issued on common-law judgments against all the property of the defendant, whereas the false representations in regard to liens, which constitute cheating and swindling, relate only to contract liens, and not to the general liens of judgments. (3) The indictment contains in-one count two offenses defined in section 703 of the Penal Code, to wit: false representation of respectability, etc., and, secondly, the causing and procuring others to represent falsely of his honesty, etc. (4) Under the first part of the indictment,—to wit, that part which charges false representation of his own respectability,—it is not charged that Tremere suffered any loss thereby.

      Branch & Snow, for plaintiff in error.

      J. E. Morris Jr., solicitor, Bennet & Ilowell, contra.
   Wade, C. J.

The court did not err in overruling the demurrer to the indictment. “If any person, [1] by false representation of his own respectability, wealth, or mercantile correspondence and connections, shall obtain a credit, and thereby defraud any person of any money or other valuable thing, [2] or shall cause or procure others to report falsely of his honesty, respectability, wealth, or mercantile character, and, by thus imposing on the credulity of any person, shall obtain a credit, and thereby fraudulently get into possession of goods or other valuable thing, he shall be deemed a cheat and swindler, and shall be punished as for a misdemeanor,” etc. Penal Code of 1910, § 703.

(a) The indictment sufficiently set forth an offense under the first division of the foregoing section, and it is therefore immaterial whether the charge against the accused could have been based upon section 719 of Penal Code, or any other penal statute. .

(6) A representation made by the defendant to another, whereby he obtains a credit and thus defrauds such other person, that he is the owner of certain described property, and that it is “free from any liens or encumbrances whatsoever,” does not amount only to an assertion that there are no contract liens against such property, but also amounts to, comprehends, and includes by its terms a representation that there is no éxisting general judgment against the defendant which could be lawfully enforced against the property as a valid “lien” thereon, already duly asserted, fixed, and established in accordance with law. Moreover, the indictment in this ease alleged the existence of contract liens on the same property, in addition to the lien against it arising under a general judgment against the defendant.

(c) The indictment makes no effort to charge that the accused caused or procured -others to report falsely of his wealth, etc., but, under the allegations therein, amounting to a charge that he himself made the alleged false representations as to his wealth, by reason of which another person was defrauded, etc., only one offense is alleged.

(d) It follows, under the last ruling above, that the one general allegation in the indictment, that the prosecutor did suffer loss and damage by reason of the alleged false and fraudulent representations, qualified the' entire charge and was therefore sufficient.

A party voluntarily introducing a witness can not impeach' him, except where the party “can show to the court that he has been entrapped by the witness by a previous contradictory statement” (Penal Code of 1910, § 1050; Civil Code, § 5879); and he can not impeach the witness by proof of such a statement even where he claims to have been surprised and entrapped, unless the' statement was made directly to himself or his attorney (Carter v. State, 17 Ga. App. 244, 86 S. E. 413; Luke v. Cannon, 4 Ga. App. 538, 62 S. E. 110), or was made to some third person with instruction to communicate it or for the purpose of being communicated to the party or his counsel, and this was in fact done and the party acted thereon. Jeens v. Wrightsville & Tennille R. Co., 144 Ga. 48, 51 (85 S. E. 1055). In 40 Cyc. 2695, it is said: “The information as to the prior inconsistent statement must have come to the party or his counsel directly from the witness.”

(a) From the recitals in the 4th ground of the motion for a new trial it does not appear that the witness whom the defendant sought to impeach, upon the ground that he had been entrapped by the witness, had made any statement whatever to the defendant or his counsel, or that any statement was made by him to a third person with instruction to communicate it, or for the purpose of being communicated, to the party or his counsel. So far as appears, the alleged contradictory statements by which counsel for the accused stated they had been entrapped were idly made to a third person, without any intention thereby to entrap the defendant; and they could not be proved by the accused for the purpose of impeaching the witness, although the person to whom they were made may in fact have been acting for the defendant in collecting testimony in his behalf, it not appearing that the witness knew of that fact.

Under the rulings made in the first part of this decision, there was no error in the excerpt from the. charge of the court complained of in the 5th ground of the motion for a new trial, on the ground that “under the evidence -the defendant was not guilty under the indictment as having been predicated on section 703 of the Penal Code, and because any representation made by the defendant as to any lien of a common-law judgment would not constitute an offense under said section.”

The evidence sufficiently made out a case against the accused, under the provisions of section 703 of the Penal Code, and the court did not err in 'overruling the motion for a new trial.

Judgment affirmed.

George and Luke, JJ., concur.


text:
    8511.
    SIKES v. THE STATE.
    The provisions of the statute of limitations applicable to an indictment for voluntary manslaughter will not bar a conviction of that offense under an indictment for murder; there being no statutory limitation as to indictments for murder.
    Decided May 11, 1917.
    Indictment for murder—conviction of manslaughter; from Evans superior court—Judge Sheppard. January 22, 1917.

      J. B. Moore, J. J. B. Anderson, Hines & J or dan, for plaintiff in error. W. F. Slater, solicitor-general, c.ontra.
   Wade, C. J.

1. Under the ruling of the Supreme Court in Jinks v. State, 114 Ga. 430 (40 S. E. 320), “the statute of limitations applicable in the trial of a criminal case is that which relates to the offense charged in the indictment, and not that which relates to any minor offense of which the accused might be convicted under the indictment.” In Reynolds v. State, 1 Ga. 222, it was held that “the statute of limitations does not run against an indictment found for murder, though on the traverse the prisoner is found guilty of manslaughter only.” See also Clark v. State, 12 Ga. 350; Wall v. State, 75 Ga. 474. In Troup v. State, 17 Ga. App. 387 (2) (87 S. E. 157), it was held, in conformity with these rulings of the Supreme Court, which are binding as authority upon this court, that, “there being no statute of limitations as to the offense of murder, one charged with that crime may be found guilty of assault with intent to murder, although the indictment charging the offense of murder is returned twenty-one years after the commission of the alleged offense.”

(a) The defendant was convicted of the offense of voluntary manslaughter, under an indictment charging him with murder, which was found approximately nineteen years after the homicide occurred. Under the rulings of the Supreme Court above referred to, his conviction can not be set aside upon the ground that the offense of which he was found guilty was barred by the statute of limitations; for there is no statute of limitations for the offense of iuurder, the crime charged in the indictment.

(&) This court declines to certify to the Supreme Court the question here ruled upon, or to request that court to review its several decisions cited above, since am opportunity is now afforded to the.plaintiff in error to obtain a review of the said rulings, by application to the Supreme Court for the writ of certiorari, as authorized by the amendment to the constitution of 1916.

2. Upon careful review of all the several grounds of the motion for a new trial, taken in connection with the entire charge of the court, we find no error which would require a reversal of the judgment overruling the motion for a new trial.

3. The evidence sufficiently supported the verdict.

Judgment affirmed.

George and Lulce, JJ., concur.


text:
    8533.
    CARSON v. THE STATE.
    1. The newly discovered evidence in this case is material and not altogether cumulative and impeaching; it does not appear that by the exercise of reasonable diligence it could have been discovered and obtained by the defendant at the time of trial; and if credited by the jury, it would be likely to produce a different verdict on another trial.
    2. The court erred in overruling the motion for a new trial.
    Decided May 11, 1917.
    Indictment for throwing a missile into a passenger-car of a railroad; from Fulton superior court—Judge Hill. January 27, 1917.

      John S. McClelland, for plaintiff in error.

      John A. Boylcin, solicitor-general, contra.
   Luke, J.

Carson was convicted of throwing a missile into a passenger-car of the Georgia Railway and Power Company. (Penal Code of 1910, § 512.) The testimony of the conductor, Ingram, identified Carson as being the person who threw the missile into the car. The testimony of the dispatcher of the company, York, identified Carson as the man pointed out by Ingram. The defendant undertook to prove an alibi by circumstantial evidence and by the positive evidence of his sister, and by his own statement that he was not present at the time. He was convicted, his motion for a new trial was overruled, and he excepted. One of the grounds of the motion was based on newly discovered evidence. The newly discovered witnesses were Fred Coleman, T. H. Buckalew, A. J. Elliott, J. V. Chastain, and Dr. T. M. McCluskey. The affidavit of Fred Coleman states that he is the person who threw the missile into the car, and that he is the person that the dispatcher talked to, and is the person pointed out by Ingram, the conductor in charge of the car; that the defendant, Carson, was .not -present and did not throw the missile at the car. Buckalew, Elliott, Chastain, and McCluskey, in their affidavits, say that at the time of the alleged crime they saw Coleman running away from the scene, and that they did not see Carson there. The witnesses were strongly vouched for, and it does not appear that the defendant, in the exercise of reasonable diligence, could have discovered the witnesses before the trial. At the trial the only positive evidence in behalf of the defendant was that of his sister and his own' statement. The newly discovered evidence is material, and probably would produce a different verdict on another trial. The statement of Coleman and the other witnesses may be classed as cumulative of the defense of alibi, but is not cumulative as to the identity of the person who actually threw the missile into the car. The ends of justice require that a new trial be granted. The court erred in overruling the motion for a new trial. Nolan v. State, 14 Ga. App. 824 (82 S. E. 327), and citations.

Judgment reversed.

Wade, C. J., and George, J., concur.


text:
    8546.
    Neely v. The State.
    Decided May 11, 1917.
    Accusation of misdemeanor; from city court of Carrollton— Judge Beall. February 1, 1917.

      J. 0. Newell, for‘plaintiff in error.

      Willis Smith, solicitor, Buford Boylcin, contra.
   George, J.

1. “If any person shall vend or expose to sale anything whatever, within one mile of the place of worship in a camp-ground and during the period of divine worship thereat, without the written consent of a majority of the trustees, commissioners, or owners of such camp-ground, he shall be guilty of a misdemeanor.” Penal Code (1910), § 423.

2. In a prosecution under the foregoing section of the code the State is not required to show that the sale of the articles described in the accusation "was made “in the camp-ground; the language of the section, “in the camp-ground,” refers to the place of worship, and not to the place where the articles are sold or exposed to sale. The statute is to be given a reasonable construction, and does not apply to a sale made in the course of an established business carried on within one mile of the place of worship in a camp-ground. The legislature did not, by this act, intend to interfere with a legitimate and established business, although carried on within one mile of the place of worship in a campground thereafter laid out, but did intend that the people lawfully assembled at a camp-ground for divine worship, and during the period of such worship, should not be interrupted by every passing vendor attracted thereto by his desire for gain.

3. The court correctly charged the law, and the verdict of guilty was demanded by the evidence and the statement of the accused.

Judgment affirmed.

Wade, O. J., and LuJce, J., concur.


text:
    8547.
    Rogers v. The State.
    Decided May 11, 1917.
    Accusation of misdemeanor; from city court of Carrollton— Judge Beall. February 1, 1917.

      J. 0. Newell, for plaintiff in error.

      Willis Smith, solicitor, Buford Boyhin, contra.
   George, J.

This case is controlled by the decision in- the case of Neely v. State, ante, 83.

Judgment affirmed.

Wade, 0. J.,-and Luke, J., concur.


author: Dtike, J.

text:
    8548.
    Jones v. The State.
    Decided May 11, 1917.
    - Accusation of cruelty to animal; from city court of Eastman— Judge Griffin. January 31, 1917.

      G. W. Atwill, for plaintiff in-error.

      D. D. Smith, solicitor, contra.
   Dtike, J.

The bill of exceptions contains no assignment of error upon the overruling of the demurrer to the accusation, and the evidence authorized the conviction of the accused. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Wade, O. J., and George, J., concur.


text:
    8559.
    Vittilard v. City of Macon.
   George, J.

1. The ordinance of the City of Macon under which-the accused was tried and convicted on March 24, 1916, was as follows: “Prom and after the passage of this ordinance it shall be unlawful for any person to keep a blind-tiger, or keep for sale, barter, or exchange, any vinous, spirituous, or intoxicating liquors within the corporate limits of the City of Macon.” Evidence that three quarts of whisky and a number of whisky cases and empty bottles were found at the defendant’s residence -was admissible, over the objection that if was irrelevant and immaterial, that the keeping of whisky at one’s home was not a violation of the blind-tiger ordinance of the City of Macon, and that the whisky and the cases and empty bottles were found as a result of an illegal search of the defendant’s dwelling house.

2. Evidence that the wife of the defendant was seen bringing packages away from his home to his place of business in the mornings was neither irrelevant nor immaterial.

3. Evidence that two cases used for the shipment of whisky were found intlie dwelling house of the defendant, addressed to “J. Brown, order notify, Macon, Georgia,” was admissible, in connection with 29 bills of lading from persons and firms out of the State, calling for large quantities of whisky, “order notify J. Brown.”

Decided May 11, 1917.

Certiorari; from Bibb superior court—Judge Mathews.' January 30, 1917.

W. A. McClellan, for plaintiff in error. W. D. McNeil, contra.

4. The evidence was sufficient to authorize the conviction of the defendant of the offense of keeping a “blind-tiger,” and keeping for sale, barter, or exchange intoxicating liquors at hid place of business, the location of which was shown to be in the City of Macon. The evidence was insufficient to show that the dwelling house of the defendant was within the City of Macon.

5. The further assignments of error are without merit. The judgment of the recorder, finding the accused guilty, was not contrary to law and the evidence, and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

1Vade, O. J., and Luke, J., concur.


text:
    8573.
    Josey v. The State.
   George, J.

1. On the trial of the accused indicted for using opprobrious words to another, tending to cause a breach of the peace, the court did not err in refusing to allow a witness to testify that “Will Josey [the accused] does not use profanity, and he is generally respectful to white people,” in response to the question, “Do you know his general reputation. for profanity and being respectful towards white people?” Character evidence is limited to general character and to the particular attribute of character involved in the case. It is essential that the particular attribute of character be general in its existence, and existing uniformly towards all persons, and likely to indicate the probable conduct and demeanor of the accused towards all persons and in all circumstances. The expected answer- was objectionable because it did not go to the general character or reputation of the accused, but stated, as matter of fact, that the accused did not use profanity, and that he was generally respectful towards white people. Compare Lamb v. McAfee, 18 Ga. App. 584 (90 S. E. 103); Taylor v. State, 17 Ga. App. 787 (88 S. E. 696).

2. The court did not err in charging the jury as follows: “The presumption of innocence which the law indulges in his favor requires that his guilt be established by evidence which satisfies you of his guilt to a moral and reasonable certainty and beyond a reasonable doubt.” • The .use of the word “indulges,” the whole charge being considered, did not, by possibility, harm the accused.

3. The court did not err in the following charge to the jury: “On the ■ other, hand, if you find that he used the words charged in the bill of indictment, pr substantially as charged, without provocation, and that this language was used to and of the prosecutor, in his presence, and calculated to cause a breach of the peace, or tending to cause a breach of the peace, . . it would be your duty to find the defendant guilty.” The complaint is that the court should not have used the word “calculated.” By reference to the excerpt from the charge, it will be seen that the court treated the word “calculated”, as synonymous with the word “tending.” In construing the code-section under which the accused was indicted, the Supreme Court, in Dyer v. State, 99 Ga. 21 (25 S. E. 609, 59 Am. St. R. 228), said: “The gist of the offense is the use of language to or of another, in his presence, which is calculated to cause a breach of the peace.”

Decided May 11, 1917.

Rehearing denied June 13, 1917.

Indictment for misdemeanor; from Bibb superior court—Judge Highsmith presiding. February 22, 1917.

Martin & Martin, for plaintiff in error.

John P. Boss, solicitor-general, contra.

4. The further assignments of error are without merit. The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial. Compare Taylor v. State, 17 Ga. App. 787, 793 (88 S. E. 696), and cases there cited.

Judgment affirmed.

IVade,- G. J., and Luhe, J., concur.


text:
    8574.
    Green v. The State.
    Decided May 11, 1917.
    Accusation of misdemeanor; from city court of Leesburg— Judge Martin. February 10, 1917.
    IF. H. Beckham, for plaintiff in error.

      J. B. Hoyl, solicitor, contra. .
   Luke, J.

1. Grounds of a motion for a new trial which' are not approved by the trial court will not be considered by this court.

2. The evidence authorized the conviction of the accused, and the assignments of error in the motion for a new trial, which have the approval of the trial judge, are without merit.

Judgment affirmed.

Wade, O. J., and George, J., concur.


text:
    8597.
    Blackshear v. The State.
    Decided May 11, 1917.
    Indictment for robbery; from Bleckley superior court—Judge Graham. February 21, 1916.

      M. H. Boyer, II. E. Coates, for plaintiff in error.
    IF. A. Wooten, solicitor-general, contra.
   Wade, C. J.

1. While, on the trial of one indicted under' section 148 of the Penal Code, for robbery by force and intimidation, it was error to give in charge to the jury the part of that section which relates to robbery by sudden snatching (Pride v. State, 124 Ga. 791, 53 S. E. 192), yet where the judge specifically confined the investigation of the jury to the determination of the guilt of the accused of robbery by force or intimidation, there was no reversible error in so charging, for the jury •could not have been misled thereby. See, in this connection, Harrison v. State, 12 Ga. App. 552 (77 S. E. 830).

2. On the trial of one for robbery by force and intimidation, and for an attempt thus to commit robbery, where the assault and battery by which the robbery was accomplished were specifically alleged in the indictment, there was no reversible error in instructing the jury as to what constitutes an assault and a battery, there being evidence tending to show the commission of both of these offenses by the accused, in the perpetration or attempted perpetration of the crime of robbery by force; and besides, this instruction was not harmful to the accused, as he was not convicted of assault and battery, or assault or battery.

3. The intent to 'steal- is a substantive element of robbery, and the failure so to instruct the jury is cause for a new trial (Sledge v. State, 99 Ga. 684 (2), 26 S. E. 756) ; but where the court generally instructed the'jury that “the intent to steal is an essential element of the offense of robbery,” it was not error to omit any fuller instruction as to intent, in the absence of a timely written request.

4. There is no merit in any of the assignments of error. The accused was charged both with robbery by force and intimidation and with the intent to rob, and the evidence sufficiently authorized the verdict of guilty, with a recommendation reducing the offense to a. misdemeanor, which recommendation was made effective by the court.

Judgment affirmed.

George and Luke, JJ., concur.


author: Ri-oodwohth, J.

text:
    7940.
    Tarver v. Park, receiver.
    Decided May 11, 1917.
   Ri-oodwohth, J.

The defendant having filed a plea in which he admitted a prima facie case in favor of the plaintiff, and having failed to sustain by proof the defense set out in his pleadings, the court did not err in directing a verdict against him. Fitzgerald v. Reid, 7 Ga. App. 323 (66 S. E. 813); Krauss v. Flournoy, 7 Ga. App. 322 (66 S. E. 805),

Judgment affirmed.

Broyles, P. J., and Jenkins, J., concur.

Complaint; from city court of Blakely—Judge Sheffield. October 20, 1916.

L. M. Bambo, for plaintiff in error. Glessner & Collins, contra.


author: Bloodworth, J.

text:
    7956.
    CAMPBELL v. WALKER, executrix.
    1. As to transactions or communications with the payee of promissory notes, who subsequently died, an indorser of one of the notes was not competent to testify in behalf of the maker, on the trial of a suit on the notes, brought against the maker by the personal representative of the decedent.
    2. The defendant’s mortgage to secure one of the notes sued' on was properly admitted in evidence when offered by the plaintiff for the purpose of showing an admission by the defendant that the note was unpaid at the date of the mortgage; but even if it was error to allow the introduction of the mortgage for this purpose, the defendant was not harmed by it, for the jury found in favor of his plea of payment of that note.
    3. It was not error to exclude testimony of the defendant that a certain third person told him, in reference to one of the notes sued on, that if the defendant “could secure the note,” that person “would fix the house.” The statement of that person to the defendant would riot be admissible against the plaintiff without evidence that he was an* agent authorized to make it. The statement itself is not sufficient evidence of agency.
    4. A ground of a motion for a new trial in which error is assigned on the exclusion of certain testimony is insufficient when it does not appear from the ground itself that the exclusion of the testimony was prejudicial to the complaining party.
    5. It was not error to refuse to allow the defendant to amend his pleadings by adcling a plea in which he alleged that after the death of the payee of the notes sued on (which were for the purchase price of land) “a man by the name of Walker,” “representing the estate of the decedent,” or “appearing to represent” the decedent, obtained from the defendant a mortgage to secure one of the notes, under an agreement that he would carry out an agreement of the decedent to build a house on the land, and failed to do so, and that “the consideration for said transaction has wholly failed.” Even if the allegations were sufficient to show that the alleged agreement was made by a person authorized to bind the estate of the decedent by such an agreement, failure of consideration for the mortgage would not constitute a defense to this action, in which there was no attempt to enforce the mortgage.
    6. The evidence authorized the verdict for the plaintiff.
    Decided May 11, 1917.
    Complaint; from city court of Macon.—Judge Guerry. September 18, 1916.

      Suit on three promissory notes payable to B. S. Walker Jr., one of which was for $180, was brought against the maker, E. W. Campbell, by the executrix of the payee. The defendant pleaded that the notes were for the purchase price of land, for which the payee gave him a bond for title, and that the sale was revoked and the land surrendered to the payee of the notes under an agreement that the defendant was to pay the $180 note and. be released from payment of the other notes; and that he paid the $180 note and was not indebted to the plaintiff. By amendment he pleaded that a part of the consideration of the original trade was that the payee of the notes was to build a house on the land, but the payee after-wards refused to build the house, and the trade was revoked as stated above. The trial of the case resulted in a verdict in favor of the plaintiff for the amount of the two notes other than the $180 note.
    The first division of the decision relates to the following ground of the motion for a new trial: “The court erred . . in holding that the witness J. A. Jordan was incompetent to testify, and in refusing to let him testify, to the facts which defendant’s counsel stated that he wished to .prove by the witness, to wit: that Jordan was employed by Walker, the deceased, . . that he had charge of Walker’s real-estate business; that Walker . . told Jordan that he was not able to construct that' building for Campbell on the land involved in the case, and that, in accordance with tire directions of Walker, Jordan carried men out to see-the place, and that Walker told Jordan that the $180 note sued on by the plaintiff was paid.; that Walker further told Jordan that he had agreed for a consideration of $180 to revoke and rescind the sale of the land to Campbell, and that he (Walker) had agreed to repair and construct a house on the land, and that he did not do it, and thereupon the sale was rescinded. Movant contends that this evidence was admissible because, as movant.contends, Jordan was not a party to the suit, and was not interested in the result of the suit; that the undisputed evidence in the'ease showed that the $180 had been paid, and therefore Jordan could not possibly be interested in the result of the suit, he not being an indorser upon said note; but movant contends that even if the evidence did not show that the $180 note had been paid, Jordan should have been permitted to testify and the evidence submitted to the jury under proper instructions from the court, to wit: that if the jury believed that the $180 note had been paid, from the evidence in the ease outside of Jordan’s testimony, then they could consider Jordan’s testimony as bearing upon the question of rescission of the contract, and, if they believed that the $180 note had not been paid, then they should discredit the testimony of Jordan. The court, upon objection of the plaintiff’s counsel, refused to allow Jordan to testify in the ease. Note by the court: It appeared and was admitted that the witness was the J. A. Jordan who had indorsed the $180 note.”

      Feagin & Hancock, for plaintiff in error.

      Hardeman, Jones, Park & Johnson, Harry S. Strozier, contra.
   Bloodworth, J.

Suit was brought by Mrs. Marie Stevens Walker, executrix of the estate of B. Sanders Walker Jr., against E. W. Campbell on three notes, one of which was indorsed by J. A. Jordan. Jordan was offered as a witness by defendant to prove certain statements made to him, and certain transactions had with him by the deceased, and was properly held incompetent to testify. Civil Code of 1910, § 5858 (1), (4); McIntyre v. Jones, 17 Ga. App. 760 (88 S. E. 419); Staton v. Exchange Bank,. 15 Ga. App. 137 (83 S. E. 784). See also Carroll v. Barber, 119 Ga. 856 (47 S. E. 181).

The defendant having pleaded that one of the notes sued on, the principal of which was $180, had been settled by partial payments, ranging in date from January 1, 1913, at which time he claimed to have paid $45, to some unfixed date in 1913, when a final payment "of $5 was made, a mortgage signed by' him, Idated June 3, 1913, to secure that note, was properly admitted in evidence when offered by'the plaintiff to show an admission by the defendant that the note was unpaid at the date of the mortgage. Even had this been error, it did not injure the defendant, for the jury found in favor of his plea of payment.

In answer to the question, “What was said between you and Clifford Walker in reference to the $180 note when he was down here?” the defendant testified: “He told me that if.I could secure the note, he would fix the house.” This testimony was ruled out, and it was contended that this was error, “for the reason that it showed that Mr. Clifford Walker was the duly authorized agent of the plaintiff in securing the execution of the mortgage just referred to.” Before the plaintiff would be bound by the acts of an alleged agent, it was necessary to prove the agency, and this testimony was not sufficient within itself to show that Clifford Walker was the “duly authorized agent of the plaintiff.”

The following question put to the defendant by his counsel, and the answer, are set out in one of the grounds of the motion for a new trial: “Did you at the time that Mr. Jordan offered this land for sale surrender possession of this land?” Answer: “Yes.” It is alleged that the court erred in excluding the question and answer; that “this testimony was material and relevant to the issues in the case, particularly as defendant’s contention was that there had been a rescission of the original trade for the land between him and Walker.” Standing alone and without explanation, this question and the answer are not sufficient to enable this court to determine whether the exclusion of the testimony was prejudicial to the movant. Each ground of a motion for a new trial must be complete in itself. When was it that Mr. Jordan offered this land for sale? To whom was possession of the land surrendered? If this testimony of the defendant himself refers to a transaction had directly with the deceased, it is clearly inad•missible. Park’s Ann. Code, § 5858; Chamblee v. Pirkle, 101 Ga. 793 (39 S. E. 20); Dowdy v. Watson, 115 Ga. 47 (41 S. E. 266); Hill v. Merritt, 146 Ga. 307 (91 S. E. 204).

The notes sued on by the executrix were given to the deceased for the purchase price of land. The defendant offered an amendment to his ¡dea, in which amendment he alleged: “that after the death of the said B. Sanders Walker, and after the agreement was made, as set forth in paragraph 3 of the original answer, a man by the name of Walker, who was representing'the estate of B. Sanders Walker, made and entered into an agreement with this defendant to the effect that if this defendant would secure the payment of the $303.50 note with a mortgage, he would carry out the original contract with this defendant that was made by the said B. Sanders Walker in his-lifetime; that is to say, that he, the said Walker, would construct and build a house upon said land of this defendant. Defendant shows that on the strength- of this proposition and agreement made by the said Walker, and appearing to represent the said B. Sanders Walker, he gave a mortgage to secure the payment of the said $303.50 note, with the express understanding that said house was to be built without any delay. Defendant shows that the said Walker who made this agreement with the defendant did not build said house, did not carry ont said trade as he agreed, and the consideration for said transaction has wholly, failed.” The court did not err in refusing to allow the amendment. It is indefinite as to the person with whom the alleged agreement was made, and does not show that he had any authority to make the agreement and thus bind the estate to complete a house “without delay.” Besides, this suit was brought on the original notes, and the failure of the “man by the name of Walker” to build the house, even if such an agreement was made and the mortgage executed, could not affect the suit on the notes or the consideration thereof, but could only affect the consideration of the mortgage, and no effort was being made to enforce the latter.

The evidence of the defendant himself shows that on May 3, the date of the death of the decedent, the defendant had in his possession the bond for title given him, and was living on the land, and that he “moved away the fall suit was brought, . . moved away in December.” Suit was brought on November 11, and served on November 15. This evidence in connection with the other evidence in the case authorized a finding for the plaintiff, and the judge did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, P. J., and Jenlcins, J., concur.