author: Bloodworth, J. Broyles, C. J.,

text:
    11128.
    ALEXANDER v. FORMAN.
    Decided July 14, 1920.
    Rehearing denied July 28, 1920.
    Where a person makes two loans, the second to take up the first, and a deed to the same land is given to secure each loan, and suit, is brought on the notes given for the second loan, a plea which alleges that the notes sued on and the deed given to secure them embrace, as a part of their consideration, the old debt, together with the interest and usury thereon, raises an.issue of fact for determination by a jury. The judge erred in striking the plea.
    Complaint; from city court of Blakely — Judge Sheffield. October 20, 1919.
    The petition alleged that to secure the notes sued on, a security deed to certain lands was executed and delivered to the plaintiff. The plaintiff prayed for judgment on the notes and that the judgment be declared a special lien on the lands described in the deed. A plea consisting of several subdivisions was filed by the defendant, but in the brief filed by his counsel in this court all of the plea was expressly abandoned except the following: “ That on the 8th day of December, 1911, this defendant procured from the plaintiff a loan for $3,500.00, which was secured by a security deed covering the same lands described in the security deed dated March 16, 1914, and referred to in paragraph 4 of the petition; and on the 16th day of March, 1914, this defendant was indebted to the plaintiff in the sum of $2,800.00 principal, with interest on said principal at the rate of seven per cent, per annum from the 8th day of December, 1913, which said interest amounted to $53.36, making the total amount due on said loan of December 8, 1911, on March 16,1914, the sum of $2,853.36. That the amount due on the debt of December 8, 1911, on March 16, 1914, furnished a part of the consideration of the notes sued on, which was secured by the security deed referred to in paragraph 4 of the petition, and while there was due on said debt the sum of $2,853.36 principal and interest to the 16th day of March, 1914, the plaintiff reserved to himself, but of the lohn evidenced by the notes sued upon and secured by the security deed referred to in paragraph 4 of the petition, the sum of $3,928.36, in satisfaction and settlement of said loan of December 8, 1911; -which said amount the plaintiff reserved to himself before paying to this defendant any sum whatsoever in consideration of the note sued upon and the security deed referred to in the petition. That by reason of the foregoing facts the said plaintiff charged and reserved to himself out of the consideration of the note sued upon as interest the sum of $75 in excess of the interest legally duo on said debt of December 8, 1911, and in excess of what he was lawfully permitted to charge thereon. That by reason of the facts hereinbefore alleged in this further plea and answer in making said excess charge, and reserving to himself said sum of $75 in excess of the amount of interest due to him on said debt of December 8th, 1911, all of which in part formed the consideration of the note sued upon and secured by the security deed referred to in paragraph 4 of the petition, said plaintiff intended to and did charge and reserve to himself a greater sum, by -$75, for the use of $2800 of his money than he was entitled to charge and reserve under the contract, and a greater sum by 53 42/100 dollars than 8% interest on said $2800 from December 8, 1913, to March 16, 1914, and the amount so charged in excess of 8% interest as aforesaid was charged, reserved, and taken by the plaintiff with the intent of charging more than 8% for his money, in violation of the usury laws -of Georgia; and the notes sued on and the security deed referred to in paragraph 4 of the petition, which was given to secure said note, embrace as a part of the consideration thereof said debt of December 8, 1911, together with the interest and usury charged thereon, and are by reason of the foregoing facts usurious, and because thereof this defendant pleads that the plaintiff is not entitled to the specified judgment prayed for against the land described in said security deed.”
    An oral motion to strike the plea was made, “on the ground that no defense was set forth therein,” and there was also a written motion to strike it, the substance of which was that the allegations therein were irrelevant, did not “constitute a good plea of usury, nor set forth any other valid defense, and . . the charge that plaintiff exacted usury is a bare conclusion of the pleader, not sustained by the facts on which said charge is predicated, and contrary to law.” The motion to strike the plea was sustained and the defendant excepted.

      L. M. Rambo, A. H. Gray, for plaintiff in error,
    cited: Civil Code (1910), §§ 3436, 3427; 114 Ga. 964 (2); 9 Ga. 30, 34-5; 28 Ga. 526; 49 Ga. 514; 83 GW 640; 94 Ga. 562 (2); 59 Ga. 546; 124 Ga. 660 (2); 23 Ga. App. 458; 145 Ga. 243; 55 Ga. 412 (3); 104 Ga. 318 (2) 112 Ga. 35 (2).

      Glessner & Collins, contra,
    cited: Civil Code (1910), § 3426; 112 Ga. 306; 94 Ga. 307 (3), 321; 63 Ga. 32 (5), 56; 107 Ga. 536; 120 Ga. 762; 64 Ga. 183 (2); 79 Ga. 742; 2 Ga. App. 107 (2); 11 Ga. App. 514 (3); 19 Ga. App. 782; 113 Ga. 984 (4), 986-7; 94 Ga. 307 (3), 321; 116 Ga. 679 (2), 682-3; 145 Ga. 585-6; 105 Ga. 166; 124 Ga. 965 (4), 970; Civil Code (1910), § 5674; 18 Ga. App. 301; 142 Ga. 609.
   Bloodworth, J.

(After stating the foregoing facts.)

An examination of the foregoing plea will show that it is distinctly alleged therein that usury was charged in closing the old loan 'and that the notes sued on and the deed given to secure them embraced, as part- of the consideration thereof, the old debt, “together with the interest and usury thereon.” In such a case as this “usury need not be pleaded with the same particularity as in a suit to recover it back or in a plea attempting to set it off against the plaintiff’s demand.” Hollis v. Covenant Building & Loan Association, 104 Ga. 318 (31 S. E. 215). We think this case is controlled by tlie decision in Lott v. Peterson, 23 Ga. App. 458 (98 S. E. 361). In the opinion in that case it is said (pp. 462-3): “ Whether or not, as a condition precedent to the making of the loans sued upon, the borrower agreed to pay up the original indebtedness with usurious interest, or whether the new transaction was bona Me or free from any usurious taint or a mere cloak to cover up usury, were questions of fact for a jury to determine.” Under this ruling the judge erred in striking the plea, and the further proceedings were nugatory.

Judgment reversed.

Luke, J., concurs. Broyles, C. J., dissents.

Broyles, C. J.,

dissenting. In my opinion the facts set forth in the defendant’s plea are insufficient to sustain the allegations of usury therein, and the court did not err in striking the plea.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    11215.
    Sovereign Camp of the Woodmen of the World v. Warner, by next friend.
    Decided July 14, 1920.
    Action on insurance certificate; from city court of Savannah — Judge Freeman. December 15, 1919.
    As a beneficiary “ dependent upon ” H. P. Gallagher, Fay Gallagher Warner, a minor, sought, in an action brought by next friend, to recover the death benefit provided for in a certificate in which she was named as the beneficiary, issued to H. P. Gallagher by the defendant, a fraternal benefit society of which he was a member. Although she was described in the certificate and in the original petition as his niece, she was not his niece, but a niece of his deceased wife; and by amendment to the petition it was alleged that she was “dependent upon” him at the time the defendant inserted her name as beneficiary in the certificate and up to the time of his death. This amendment was allowed over the objections that it attempted to change the plaintiff’s status as beneficiary and set up a new cause of action. Pendente lite exceptions to! the allowance of the amendment, as well as to the overruling of a demurrer to the petition, were ■ specified and sent up as a part of the record, and the final bill of exceptions, after stating these rulings and stating that these exceptions pendente lite had been filed, assigned error “upon the judgment overruling the said demurrer,” and “upon the judgment overruling said objections” to the allowance of the amendment.
    The defendant contended that under the evidence the plaintiff was not a “dependent” within the meaning of the law and of the certificate; the jury found in favor of the plaintiff. In the charge to the jury the judge, after charging that the plaintiff was not entitled to recover 'as a niece, charged, among other things, as follows: “ The only issue in this case, as I see it, is whether or not this young lady was a dependent of Mr, Gallagher, If she was, she is entitled to recover under this action on this benefit certificate. If she was not a dependent, then she is not entitled to recover. . . I have listened with a gréat deal of interest and have, been much instructed by the various authorities that have been submitted to me upon this question of dependency, and I have come to the conclusion that it is proper for me to charge you on that subject in this wise: With reference to contracts of this sort and these beneficiary societies, where the statute and the contract, including the by-laws, provide for the payment of benefit funds to persons dependent upon the members, the wottd ‘ dependent ’ means some person or persons dependent for support in some way upon the deceased. A ‘dependent/ as the term is used in reference to these policies, is one who is sustained by another or relies for support upon the aid of another. That does not mean (and excludes to us) the idea of being dependent upon some ohe for his favor or for his affection, or for companionship, or as a servant or a retainer. That idea of dependency is excluded. A dependent has been defined by the lexicographers as one who is dependent, one who is sustained by another or who relies on another for support, one who reasonably relies upon another for subsistence, nourishment, and support.” The court then gave the following instruction, the only one complained of in the motion for a new trial: “A person, whether a relative or .not of a deceased member of such an order to whom has been issued a certificate, who was in good faith supported by him, wholly or in substantial part, at home or abroad, because of a legal or moral obligation, or because of 'affection merely, may be designated as the beneficiary of such a member.” The words “or because of affection merely,” the motion states, are “the portion objected to and in which the court erred.” It is alleged that this language tended “to create the impression upon the minds of the jury that if one contributed to another because of affection for such person, whether any dependency actually existed or not, it would have the same effect,— that is, the plaintiff would be entitled to recover.” The charge proceeded as follows: “ The essential point is to determine dependency. Did this young lady depend for her support in any substantial or real sense upon Mr. Gallagher? Or were his benefactions and gifts to her, of one sort and another, simply the expressions of an affection, and not for the purpose of support and maintenance ? So, I say, if you find from the evidence that Mr. Gallagher made substantial contributions to the support of Miss Warner, but that she was not partially dependent on these contributions for her support, you would not be authorized to find for the plaintiff, and your verdict in that event would be . . for the defendant. If you find from the evidence that the insured, Mr. Gallagher, from time to time made to Miss Warner presents of clothing or money, or what not, and that they were made for the comfort of Miss Warner, and that she was not partially dependent upon these presents for support, you would find for the defendant. But should you find that Mr. Gallagher made contributions of clothes or money and they were substantial contributions, and that Miss Warner, within the life of the policy during which she was declared to be dependent, was as a matter of fact partially dependent upon Mr. Gallagher for a support, and the contributions and dependency existed as stated, you would be authorized to find for the plaintiff, upon her claim under this policy. . . You will bear in mind that this is a suit on a contract. ■ Whatever her rights are, no matter what the nature of the organization that issued the contract, they are bound by the four corners of this contract, and these four corners include the by-laws and rules of the organization, . . introduced in evidence before you.”
   Luke, J.

There is no assignment of error upon the exceptions pendente lite, in the main bill of exceptions, nor in this court; hence the questions that could have been raised by a proper assignment of error upon the exceptions pendente lite are not considered by this court.

The evidence authorized the verdict, which has the approval of the trial judge. Eor none of the reasons assigned was it error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.

The by-laws of the defendant provide that the benefit payable on the death of a member shall be paid “to the person or persons named in his certificate as beneficiary or beneficiaries, which beneficiary or beneficiaries shall be his wife, children, adopted children, parents, brothers and sisters or other blood relations, or to persons dependent upon the member.” By the act of 1914 as to fraternal benefit societies (Ga. L. 1914, p. 101, sec. 6, Park’s Code, § 2564 (v) ), cited in the briefs, it is provided that “The payment of death benefits shall be confined to” certain classes of relatives, “or to a person or persons dependent upon the member.”

The benefit certificate sued on was issued in 1915. H. P. Gallagher’s wife was then dead and he had no child. From the evidence it appears that the plaintiff was then twelve years old and was living with her parents, and she- continued living with them for the remainder of Gallagher’s lifetime. He died in 1918. During this period her father was supporting his family, which included several other children, and his earnings ranged from $23 a week in 1915 to $36 a week in 1918. On direct examination the plaintiff testified: “I was dependent upon Mr. Gallagher before his death. The way in which I was dependent was that as long ago! as wlien I was a little over two years old I went off to Texas with my uncle, . . and stayed three years with them and did not know any other father and mother except my uncle and his wife; and my mamma and papa wrote for me, but I did not want to leave, and they wanted to legally adopt me, but my father and mother objected and brought me home; and so my aunt died and she was brought here, and my uncle came with her, and when he came he gave me clothes and furniture, and he went back to Texas and sent me money, sometimes as much as $50 at one time; and then he left for Texas for good and came to Savannah and stayed a while, and then went off to Cleveland; and from there he also sent me money, clothes, or anything I wanted. He told me to write him and let him know if I needed anything and lie would send it, and I would always write when I wanted anything, and I always felt towards ■ him just as a father. I looked upon him as a father and looked to him to furnish me those things. I kept in correspondence with him; while he was away the whole time he wrote me, and always signed his letters, ‘Tour Texas Daddy/ I always wrote to him whenever I needed anything and wanted it, and he always responded in furnishing those things. I am named after him. After his wife died he sent all the furniture they had home, and also all of her jewelry; he gave it to me, and he left all the silver to mother., He brought it with him. He left me his trunk and his suitcase, and said he would not need it, and he always told me everything at his death was mine, and that he had no relatives at all.” On cross-examination the plaintiff testified, that after her return from her three-years visit to Mr. Gallagher and his wife in Texas, they sent clothing and mtfney to her, and he would send to her “every month, from time to time,” articles that she needed; she did not have to write; she wrote and asked for things and he responded; he kept that up until he died; she received, she supposed, five or six hundred dollars after her return from Texas; she needed things and he voluntarily gave them to her. The plaintiff’s mother testified, that Mr. Gallagher sent things to the plaintiff from the time she was a month old until he died, and he told the plaintiff he would always support her; “he contributed to her support all the way through; he said he felt like she was his own child and was all he had; . . he contributed to her during this time something between five and six hundred dollars in actual money, besides clothing and the household furniture; he always fitted her out each season;” her father “contributed vexy little to her support;” the wages he made were not sufficient; “of course her father supported the family and she lived with us; ” “ she lived at home, ate at home, and stayed at home the same as the rest of the children; all that she got outside of that was what was given her by Mr. Gallagher.” “ He just sent money for her support; he said he intended to support her just the same as if she' was with him, because he considered her his own child;” “he contributed right along, all the time, every month or two; sometimes he would send $50, sometimes $25; . . he sent $50 some months before he died.” “I suppose it was a voluntary gift on his part; he was under- no obligation from a parental standpoint; he knew I had a large family, and it was all we could do to do for those.” The plaintiff introduced in evidence an affectionate letter of H. P. Gallagher to her, dated December 12, 1915, referring to Christmas and saying, ‘You take this $50 and buy yourself and also something for the others after you are fixed up yourself,” and concluding, “I still remain your Tex Dady.”

One of the grounds of the motion for a new trial was that the letter of H. P. Gallagher to the plaintiff was admitted in evidence over the objection that it showed merely a gift to her and to others, and did not tend to show dependency. The plaintiff’s testimony on direct examination was objected ta as a whole, the defendant objecting “to bringing out anything of that kind, . . for the reason that the policy sets out that -she is a beneficiary as a niece, and the application for insurance was not made for a dependent, but made [for one named] as a niece.” In the motion for a new trial the admission of this testimony was alleged to be error because in this action as originally brought the plaintiff was designated as a niece, and the testimony was intended to support 'a new cause of action, to wit, dependency; and “it did not itself show such a ground, even if such a claim could now be set up.” Iu another ground it is alleged that the court erred in admitting in evidence, over the objection that it had nothing to do with the present cause of action, a benefit certificate issued by the defendant in 1909 to H. P. Gallagher, .naming his wife as beneficiary, which was surrendered on the issuance of the certificate sued on, and on which was written a direction by him that a new certificate, naming Pay Gallagher Warner as beneficiary, be issued in lieu of the surrendered certificate. Exceptions were taken also to the refusal to grant a nonsuit and the refusal to direct a verdict for the defendant.

William R. Hewlett, De E. Bradshaw, J. C. Farthing, for plaintiff in error,

cited, as to dependence: Ga. L. 1914, pp. 99, 101, sec. 6, Park’s Code, § 2564 (v); 29 Cyc. 114, 115; 1 Words & Phrases (2d series), 1298; 2 Id. (1st series) 1991; 29 Cyc. 114, 115; Sovereign Camp W. O. W. v. Noel, 34 Okl. 596 (126 Pac. 787-9, 41 L. R. A. (N. S.) 648); Ownby v. Supreme Lodge 101 Tenn. 16 (46 S. W. 758); Commercial Trav. Asso. v. Tennett, 128 Mo. App. 541 (106 S. W. 1073-7); Alexander v. Parker, 144 Ill. 355 (33 N. E. 183-4, 19 L. R. A. 187); Caldwell v. Grand Lodge, 148 Calif. 195 (82 Pac. 781, 113 Am. St. Rep. 219; 2 L. R. A. (N. S.) 653, 7 Ann. Cas. 356, 358); Murphy v. Nowak, 223 Ill. 301 (79 N. E. 113, 114); Martin v. Modern Woodmen, 111 Ill. App. 99

W. B. Stubbs, F. A. Tuten, G. N. Alford, contra,

cited: Grand Lodge A. O. U. W. v. Bollman, 22 Tex. Civ. App. 106 (53 S. W. 829); Wolf v. Pearce, (Ky. 1898) 45 S. W. 865; Erickson v. Modern Woodmen, 43 Wash. 242 (86 Pac. 584); Fuller v. Supreme Council, (Ind. App.) 115 N. E. 372; Sovereign Camp W. O. W. v. Noel, supra.


text:
    11227.
    West v. Thompson.
   Luke, J.

1. The right of the plaintiff to recover in this case -depended upon his right to rescind the trade for fraud. And “the right to rescind for fraud in a horse-swap exists only where actual fraud has been committed, unless the. right to rescind has been expressly reserved.” Cobb v. Pope, 21 Ga. App. 103 (93 S. E. 1029), and cit.

2. Conceding that the plaintiff got the worse of the swap, and that he was -thereby defrauded, the evidence fails to affirmatively show actual fraud upon, the part of the defendant; and, it not appearing that the plaintiff had expressly' reserved the right to rescind the trade, that right did not exist. The verdict for the plaintiff, therefore, was unsupported by the evidence; and the court erred in overruling the defendant’s motion for a new trial.

Decided July 14, 1920.

Trover; from city court of Carrollton—Judge Beall. December 15, 1919.

Boykin & Boykin, for plaintiff in error.

E. T, Steed, Smith & Smith, contra.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.


author: Bloodworth, J.

text:
    11326.
    FLOOD v. MAYOR AND ALDERMEN OF SAVANNAH
    Decided July 14, 1920.
    1. The ordinance codified as section 1201 of the Code of Savannah is not unconstitutional for any reason alleged in the attack made on it in this case.
    2. A permit to keep a cow in the city of Savannah cannot be revoked by the health officer, “unless he shall have first given to the holder of the same not less than five days’ notice in writing of his intention to revoke such permit, and an opportunity to be heard by the Board of Sanitary Commissioners as to why-such should not be done.”
    3. The facts in this case do not authorize the conviction of the accused.
    Certiorari; from Chatham superior court—Judge Meldrim January 23, 1920.

      Simon N. Gazan, for plaintiff in error.

      Shelby Myrick, Edwin A. Cohen, contra.
   Bloodworth, J.

In the police court of the City of Savannah Mrs. Flood was tried and convicted “for keeping a cow within the city limits without a permit, and for refusing to obey the order of the health officer to dispose of said cow as directed by said officer.” Upon the case being carried by certiorari to the superior court, the judge overruled the certiorari; and the case is before us for review.

It is insisted that “the ordinance under which the -prosecution proceeds, codified as section 1201 of the Code of Savannah, is unconstitutional and void, as violative of article 1, section 1, paragraph 2, of the constitution of the State of Georgia, as codified in section 6358 of the Code of 1910, as follows: ‘Protection to person and property is the paramount duty of government, and shall be impartial and complete/ in that said ordinance is unfair and discriminatory, does not operate equally in the revocation of licenses and permits, in that it denies an opportunity to be heard .to those alleged to keep cows in a congested district, yet provides a means of hearing to those keeping cows elsewhere; said ordinance further offends the constitution in that it provides a hearing, before revocation of permit, to those who are charged with violating some law or regulation of the city or health officer, but does not provide a hearing, before or after revocation, to those who violate the regulation against keeping cows in a congested district; in other words, for the violation of any law or regulation the holder of the permit is given five days’ notice of intention to ■ revoke, and an opportunity to be heard by the Board of Sanitary Commissioners, but for the alleged keeping of a cow in a congested district the holder is given five days’ notice, but no provision is made for a hearing before the Board, of Sanitary Commissioners, thereby depriving those alleged to keep cows in a congested district of a hearing, but granting to other holders of permits, for violations of other regulations, an opportunity to be heard.”

We cannot agree with this contention of learned counsel. An examination of section 1201 of the Code of Savannah, as it comes to us in the record, discloses the fact that under both conditions above referred to, an opportunity is given to be heard by the Board of Sanitary Commissioners. Both of the conditions are included in .the same ordinance, and the ordinance provides that “ all permits pursuant to this ordinance may at any time be revoked by the health officer, subject to the approval of the Board of Sanitary Commissioners, for the violation of any law or ordinance of the city of Savannah having to do with the care of cows, dairies, milk, and the sale of milk, or of any regulation of the health officer governing the Iceeping of cows, stables for cows, dairies, milk, and the sale of milk in the city of Savannah; provided, however, that no such permit shall be revoked by the health officers’ for the foregoing reasons unless he shall first have given the holder of the same not less than five days’ notice in icriting of his intention to revoke such permit, and an opportunity to he heard by the Board of Sanitary Commissioners as to why such should not be done.” (Italics ours.) It will be seen from the above that the opportunity to be heard before revocation applies to all permits referred to in the ordinance where the violation related to certain specified things, including “care of cows” or “keeping of cows,” as in the instant ease. In addition to the above, subdivision “a” of said ordinance, which refers to congested population and impairment of public health, provides that “the health officer of the city of Savannah, with the consent and approval of the Board of Sanitary Commissioners, may prohibit the keeping of cows . . provided the holder of the permit shall be given at least five days’ notice before his permit is so revolced.” (Italics ours.) Construing the ordinance as a whole, it is clear that what is said in the first portion of the ordinance, relative to notice and a hearing before revocation, is applicable to “all permits pursuant to this ordinance.” The ordinance is therefore not unconstitutional for the reason assigned. Questions which involve “the construction of a provision of the constitution of this State or of the United States, or the constitutionality of an act of the General Assembly,” must be determined by the Supreme Court, but this court “has full power and authority to determine whether municipal ordinances are unconstitutional.” Wright v. Mayor & Council of Macon, 5 Ga. App. 750(1) (64 S. E. 807). See also Neal v. City of Dublin 20 Ga. App. 263(1) (92 S. E. 1021).

Another ground of the motion alleged that the defendant was not. given five days’ notice, as provided by the said ordinance, before the permit was revoked. The record shows this to be true. On July 31 the health officer addressed a letter to Mr. Flood as follows: “The permit issued to you in 1912 to keep a cow for your personal use is hereby revoked. You will be given seven days to dispose of said cow.” This was not a notice that the permit would be revoked, but one that it had actually been revoked. The defendant should have had at least five days’ notice before her permit was revoked, and an opportunity to be heard by the Board of Sanitary Commissioners as to “why such should not be done.” The health officer failed to give her this notice and this opportunity as provided by the ordinance. Such a notice is a condition precedent to revoking the permit, and the matter stands just as if no action had been taken by the health officer.

The specific portion of the ordinance alleged to have been violated, and the portion to which all the evidence seems to be directed, was that which provides that “the health officer of the city of Savannah, with the consent and approval of the board of sanitary commissioners, may prohibit the keeping of cows in any section of the city of Savannah where, because of congested population, the keeping of cows would impair the public health.” W. J. Spann, an inspector of the city of Savannah, testified: “ The defendant, Mrs. Mood, held a permit to keep a cow for personal use issued by the health officer in 1912. On July 31, 1919, this permit was revoked. I made an investigation for the health officer and found that Mrs. Mood did not keep the cow in a congested district, but that the cow was kept in a pasture east of the Tybee depot, but brought up in the city twice a day for the purpose of milking, and then returned to the pasture. The cow was brought to the yard at 511 Congress Street East to be milked. I examined the yard and found it to be entirely clean and sanitary. I never saw the cow in that yard, but have seen it in the lane on its travel to and from the pasture.” (Italics ours.) C. J. Melvin, Chief Sanitary Inspector, testified: “I inspected the premises where the cow of Mrs. Flood is brought up for milking. The place is sanitary. The cow is kept in a pasture which is not in a congested district.” There is no evidence that the cow was kept'in a section of the city where, “because of congested populaiionj the keeping of the cow would impair the public health.” (Italics ours.) There was no evidence whatever of any unsanitary condition or of any congested population, but all the evidence showed that the cow was kept in a distant pasture and carried back there as soon as she was milked. The defendant repeatedly offered to submit to any test or inspection which the health officer might require, and agreed to dispose of the cow if the inspection showed it to be unhealthy or the milk unclean. As alleged in the petition for certiorari, “no inspection of the cow or milk was made as requested by Mrs. Flood. No complaint was made by the .health officer that the cow was diseased or the milk unhealthy.” It thus appears that the finding of the recorder was contrary to the finding of the facts in the case. For the reasons set forth above, the judge of the superior court erred in overruling the certiorari.

Judgment reversed.

Broyles, C. J., and Luke J., concur.


author: Broyles, C. J. Luke, J.,

text:
    11431.
    Rawleigh Company v. Collins et al.

    Decided July 14, 1920.
    Complaint;' from city court of Cairo—Judge Rigsby. December 31, 1919.

      M. L. Ledford, John R. Wilson, Handley C. Harrison, for plaintiff.

      Bell & Weathers, R. A. Bell, for defendants.
   Broyles, C. J.

Under tlie facts of the ease, as disclosed by the record, the court did not err in directing a verdict in favor of the defendants, or in overruling the plaintiff’s motion for a new trial.

Judgment affirmed.

Bloodworth, J., concurs. Luke, J., dissents.

Luke, J.,

dissenting. I think there was evidence sufficient to let the ease go to the jury.


text:
    11432.
    HALL v. GEORGIA RAILROAD AND BANKING CO.
    Decided July 14, 1920.
    Injury to a railroad passenger, alleged to have been knocked to the ground by being bumped against by one of the passengers crowding up the steps of a car when she started to descend the steps at her destination, did not, under the allegations of the petitions in this case, constitute a cause of action against the railroad company, whose conductor, it was alleged, “either wilfully or forgetfully,” did not allow her sufficient time to alight from the train, but set a step on the ground and allowed passengers to crowd in the train as she was coining out.
    Action for damages; from Columbia superior court—W. M. Howard, judge pro hac vice. February 20, 1920.
    The petition alleged that “plaintiff was a passenger being transported on defendant’s train from Robinson to Grovetown. Plaintiff gave to the conductor her ticket reading from Robinson to Grovetown, and said conductor well knew that she was to get-off at Grovetown, and knew that she was riding with her infant child and a nurse. . . When the train upon which plaintiff was riding reached Grovetown plaintiff undertook to alight from said train as rapidly as possible and as was consistent with the safety of herself and child, but the said conductor either wilfully or forgetfully did not allow plaintiff sufficient time to alight from said train, but set the step on the ground and allowed passengers to crowd in said train, crowding up the steps just as she was coining out, and just as she started to descend the steps a passenger who, due to negligence of the said conductor, had been allowed to rush in said train, struck petitioner, bumping against her with great force and knocking her down the steps to the ground. Plaintiff sustained severe injuries by reason of said fall;” which injuries are described; wherefore she prays judgment against the defendant in the sum of $5,000.

      J. A. Beazley, for plaintiff,
    cited: Civil Code (1910), § 2780; 97 Ga. 727; 76 Ga. 311; 108 Ga. 84; 117 Ga. 63 (1); cases cited for defendant, infra, distinguished.

      Cumming & Harper, for defendant,
    cited: 217 Mass. 515 (105 N. E. 379, 51 L. R. A. (N. S.) 1152); 212 Mass. 307, 309 .(98 N. E. 1041); 227 Mass. 113 (116 N. E. 815); 260 Pa. 481 (104 Atl. 69); 115 Ga. 837.
   Luke, J.

The petition did not set out a cause of action and was properly dismissed on general demurrer. While the only demurrer sent up with the record is a special demurrer, the bill of exceptions and the judgment excepted to show that the petition was dismissed on a general, and not a special, demurrer; and this is conceded in the briefs of counsel for both parties. Counsel for the plaintiff in error says in his brief: “A general demurrer was filed to the petition and was sustained, and the only question presented to this court is whether the petition sets forth a cause of action.”

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    11443.
    LAING v. BODIFORD.
    Decided July 14, 1920.
    The verdict being authorized by evidence and approved by the trial judge, this court can not disturb it.
    A party will not be heard to complain of instructions given to the jury at his request.
    Complaint; from city court of Cairo — Judge Eigsby. February 23, 1920.

      E. D. Rivers, Titus & Dekle, for plaintiff in error.

      Ira Carlisle, contra.
   Luke, J.

This case arose by reason of a suit on an open account and a general denial by the defendant of the indebtedness alleged. There was sharp conflict in the testimony of the parties. The jury heard the evidence and believed the testimony of the plaintiff and his witnesses, and found the verdict in favor of him. There being evidence to authorize this verdict, and the verdict having the approval of the trial judge, this court could not set aside the judgment overruling the motion for a new trial.

In the approval of the amended motion for a new trial the judge certified that the part of his charge upon which error was assigned in one of the grounds of the motion “was given in response to request of the defendant.” The defendant will not be heard to complain of a charge which he requests. When the charge of the court is read in its entirety, and in view of the request to charge, the other excerpt complained of is not error. For no reason assigned was it error to overrule the motion for a new trial.

cJudgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


author: Broyles, C. J.

text:
    11494.
    Stanley et al. v. The State.
    Decided July 14, 1920.
    Indictment for kidnapping; from Twiggs superior court — Judge Kent. February 23, 1920.

      J. S. Davis, R. A. Harrison, for plaintiffs in error.

      E. L. Stephens, solicitor-general, contra.
   Broyles, C. J.

1. A ground of a motion for a new trial based upon an affidavit of a juror impeaching the verdict is without merit. Park’s Ann. Code, § 5933, and citations.

2. The evidence amply authorized the verdict.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11495.
    Savannah River Sales Company v. Findley.
    Decided July 14, 1920.
   Broyles, C. J.

Under the facts of the case as disclosed by the record, the court did not err m directing a verdict in favor of the defendant.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Complaint; from city court of Brunswick—Judge Butts. March 16, 1930.

Certain lumber of the Savannah River Sales Company, a corporation engaged in the business of selling lumber, was sold to N. W. Findley by C. W. Green, superintendent of the plant of a lumber manufacturing company — the Savannah River Lumber Company — which was supptying lumber to the first-named company, and Findley gave to Green, in payment for the lumber purchased, checks payable to the Savannah River Lumber Company. Neither company received the checks or the proceeds, but the bank upon which-the cheeks were drawn paid them upon Green’s unauthorized indorsement of the lumber company’s name, and he received the proceeds. The sales company subsequently brought this action against Findley for the alleged value of the lumber obtained by him from Green. The defendant in his answer denied the material allegations of the plaintiff. On the trial the court, at the conclusion of the evidence, directed a verdict for the defendant; to which the plaintiff excepted.

A written agreement between the sales company and the lumber company, introduced in evidence, provides that all lumber manufactured or purchased by the lumber company shall be purchased by the sales company, and the title to all such lumber shall pass to the sales company without further formality immediately when manufactured or purchased by the lumber company; and that where such lumber is not delivered upon the premises leased to the sales company by the lumber company for that purpose, and remains in the physical possession of the lumber company for further work on it, the lumber company shall hold it as agent for the sales company. I. H. Fetty testified: “I am president of the Savannah River Lumber Company and am also president of the Savannah River Sales Company. . . I employed C. W. Green as superintendent of the Savannah Lumber Company’s plant at Brunswick, and the agreement of that employment was verbal. C. "W. Green was employed as superintendent in charge of . . and operating the property,” and “ had no authority whatever with reference to indorsing the name of the Savannah River Sales Company or the name of the Savannah River Lumber Company on any checks made payable to either of those companies,” and “no authority to receive checks as superintendent. I presume if he sold' lumber in the yard to a man and the man said, ‘Here’s a check payable to the Savannah Eiver Sales Company,’ he would have the right to take the check and turn it over to the cashier, the sales company’s agent, and deliver to him. . . At each of our operating plants we have an agent whose duty it is to handle all money or checks and other cash that passes through the office, and no one else has any authority to handle the funds.” It was testified, that the defendant admitted that he got the lumber from C. W. Green and admitted that it was of the value of the amounts of the checks mentioned above. II. G. Boberson testified, that he was general auditor of the Savannah Eiver Sales Company and of the Savannah Eiver Lumber Company and that it was a part of the duties of C. W. Green, as superintendent of the Savannah Eiver Lumber Company’s plant at Brunswick, to care for the lumber produced by that plant, which was the property of the -Savannah Eiver Sales Company; that he did not of his own knowledge know the scope of Green’s authority; so far as he knew Green had the general authority given to superintendents of plants of the Savannah Eiver Lumber Company; that the handling of the lumber was governed by the written contract mentioned above; that T. E. Anderson was the joint agent of the two companies at Brunswick, and he was the only person with authority to handle their funds there; that the companies had separate corporate records, but the management of the companies was in the same persons, and all the employees were employed by both companies under one salary; that the only connection Green had with the Savannah Eiver Sales. Company was to see that the lumber was manufactured and delivered in a marketable condition, and it was then his duty to take care of it and account for it and dispose of it as instructed by the Savannah Eiver Sales Company; the sales company’s sales were “confined to wholesale dealers in the northern markets” and it “ only did wholesale and retail business in Brunswick to a limited extent; it was not the company’s practice to sell lumber locally, except as an accommodation;. the payments received for lumber sold in Brunswick were turned in to the Savannah Eiver Sales Company and it accepted those payments without question; ” there were sales which “were collected for by C. W. Green and turned in to the company,” and it “made no objection;” the remittances for these sales “came through the hands of the company’s agent and not from Green; . . as a matter of practice Green, no doubt, frequently actually collected for the sales of lumber at Brunswick locally; at other times, no doubt, he merely notified the agent that the sale had been made, and the agent would collect. I say cno doubt ’ because I have no means of knowing who was the first person who received the money from the purchaser; ” it was the agent’s duty to collect all monies due either of the companies; if Mr. Green elected to personally collect the proceeds of any sale, it was his duty to turn over the proceeds to the joint agent, and if the lumber was paid for'by check, it was Mr. Green’s duty to turn the check over to the agent, and it was the agent’s duty to send the check to Savannah; the Savannah Biver Sales Company obtained judgment against Green for the amounts of sales made by him, “among which are those of N W. Findley.” No evidence was introduced by the defendant.

Conyers & Wilcox, for plaintiff,

cited: Civil Code (1910), § 4314; 8 Ga. App. 513; 8 Ga. App. 714 (3); 14 Ga. App. 1; 11 Ga. App. 163; 138 Ga. 73 (1); 125 Ga. 228; 81 Ga. 597-601; 88 Ga. 252-4; 5 Cyc. 548-8; C. J. 597; 8 Ga. App. 182 (3); 134 Ga. 366-7; 30 Cyc. 1183.

F. M. Scarlett Jr., for defendant,

cited: Civil Code (1910), §§ 4119, 3595; 100 Ga. 86; 125 Ga. 153; 14 Ga. App. 92.


text:
    11498.
    Lowe v. Slocum.
    Decided July 14, 1920.
    Action on contract; from Cobb superior court — Judge. Blair. April 9, 1920.
    The action was for breach of contract by failure to provide for the support and care of the plaintiff as stipulated in his deed conveying certain land to the defendant. The main question argued in the briefs of counsel was to the measure of damages. The plaintiff alleged, that he was 60 years old at the time of making the deed, that at the time of filing the suit he had a reasonable <?xpectancy of 13 years of life, that the sum necessary for his support when the deed was made and which Was still necessary was $150 a year, and that he was damaged in the sum of $2,500. It was contended on his part that the contract was an entire continuing contract, the breach of which gave the right to recover the entire value of the contract. The charge of the court was in accordance with this view, and the verdict was for $1,627.50. It was contended on the part of the defendant that if there was a breach of the contract, it was merely a partial breach, and the recovery should not exceed the value of the support withheld up to the time of the filing of the suit. In his motion for a new trial he excepted to various instructions of the court as to the measure of damages, and to the admission of life-expectancy tables as evidence, and the admission of testimony as to what it would cost to. support the plaintiff at the time of the trial.
   Broyles, C. J.

The verdict was authorized by the evidence, and none of the special grounds of the motion for a new trial shows cause for a reversal of the judgment below.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

The deed was made on March 2, 1915, and conveyed to Thomas Low (the defendant) 80 acres of land in consideration of $1 and for the further consideration that “the said Thomas Low is to take care of Steve Slocum [the grantor] the rest of his natural life and provide food and clothing and the necessaries of life in a manner suitable and commensurate with his circumstances in life, including expenses during sickness, and to give him and to bear the expenses of a Christian burial at his death.” The suit was filed on February 19, 1917, and was tried on March 10, 1920. In the plaintiffs petition it is alleged that the defendant, after taking possession of the land, tore down the house -thereon in which the plaintiff had been living, removed the lumber and built a barn out of it, and built in place of the residence a small shack in which the plaintiff “has been compelled to live ever since,” although it was unfit for that purpose, and that the defendant has wholly failed and refused and still fails and refuses to take care of, feed, and clothe plaintiff.

J. Z. Foster, for plaintiff in error,

cited 6 Euling Case Law, 1021-2, §§ 382-3.

Clay & Giles, Campbell Wallace, contra,

cited: 173 U. S. 1; 133 Mass. 74; 131 Mass. 413; 82 Me. 408; 4 Ind. App. 7; 20 N. Y. Supp. 928; 55 N. Y. 592; 23 Oreg. 530; 31 Vt. 582; 35 N. H. 33; 64 Me. 378; 62 Ga. 546 (2); 92 Ga. 198 (1); 110 Ga. 522; 128 Ga. 388 (2); 133 Ga. 752 (3); 135 Ga. 116; 145 Ga. 284 (1); 22 Ga. App. 355 (1 a); 1 Story, Contr. (5th ed.) § 26; 148 Ga. 269-70; 145 Ga. 425, 682; 133 Ga. 237 (5); 123 Ga. 853; 110 Ga. 392; 74 Ga. 51 (2 d); 20 Ga. App. 660.


text:
    11500.
    Brackett v. The State.
    Decided July 14, 1920.
    Indictment for sale of liquor; from Whitfield superior court — Judge Tarver. April 7, 1920.

      M. B. Eubanks, George G. Glenn, for plaintiff in error.

      J. M. Lang, solicitor-general, contra.
   Luke, J.

The conviction of the defendant was authorized by the evidence, and the verdict of the jury has been approved by the trial judge.

' The exception to the charge of the court, upon the ground that the court did not charge the jury the law applicable to determining the credibility of witnesses, is without merit. There was only one witness for the State, and the defendant offered no evidence except his statement. There was no request by the defendant for a .charge upon the law applicable to determining the credibility of .witnesses. See Childs v. Ponder, 117 Ga. 533 (4) (43 S. E. 986) ; Baker v. State, 14 Ga. App. 582 (81 S. E. 805), and cases cited.

The sentence was within the limits of the law and was not excessive.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    11503.
    Steverson v. Bancroft.
    Decided July 14, 192Ü.
    Attachment; from city court of Atlanta—Judge Keid. March 13, 1920.
    The action was for breach of a contract of sale alleged to have been made in certain letters, which the defendant in his demurrer contended did not constitute a complete and binding contract and were not sufficient under the statute of frauds. The letters (except heading, address, and signature) were as follows: (1) Plaintiff (at Atlanta, Ga.) to defendant (Birmingham, Ala.): April 29, 1919. “Kindly enter our order for the following, to be shipped shipping instructions to address below: Terms 2% off 10 days. F. o. b. Atlanta, Ga. 1 car 1x4 B. & Bet. flooring. 38.50 m. The above stock to be manufactured from K. D. stock Standard match flat backed and bundled. Ship to instructions to follow.” (2) Plaintiff to defendant: May 2, 1919. “Referring to our order No. 1032, for 1 car 1x4 B. & Bet. flooring, beg to advise you to please let us have invoice and bill of lading as soon as possible, and let same come to us Atlanta, Ga. Hoping that you will give this your prompt attention, we beg to remain,” etc. (3) Defendant to plaintiff: May 31, 1919. “I am in receipt of your letter of the 30th inst. On account of a wreck that we have had on your railroad, your order for B. & Better flooring will necessarily be delayed indefinitely. I am sorry of this, but I am helpless about shipping it until we get this going again.” (4) Plaintiff to defendant: June 26, 1919. “Relative to our order car 4" B. and Bet. flg., beg to say that we have written you several times about this car of material, but it doesn’t seem to get results. Now, we must have something definite, and if you want us to go in the market and buy this car of stock for your account, please advise us, as our customer is threatening to do likewise, therefore something must be done about this. Trusting that you will let us have something definite by return mail, we beg to remain,”» etc. (5) Defendant to plaintiff: June 28, 1919. “I am in receipt of yours of the 26th inst., in re 1 car B. & Better 4 in. flooring covered by your order 1032. As we have written you several times, the delay on this shipment was caused on account of so much trouble on Dixie Railroad, the road this would have to be shipped over, but feel safe in advising you now that this flooring will go forward next week. Trusting this will not inconvenience you to any great extent,” etc.
   Broyles, C. J.

The petition as amended set out a cause of action, and the court did not err in overruling the general demurrer interposed.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

The petition as amended sets out these letters and alleges, that the plaintiff’s order bore the number 1032, and that the two letters of the defendant, set forth above, constituted a complete and unqualified acceptance of the plaintiff’s order; that the contract calls for one car of B. and Better flooring at the price of $38.50 per m.; that there is a universal usage and custom among those engaged in the lumber business to the effect that when a “car of flooring ” is sold or purchased and the number of feet is not specified, the trade meaning of “ one car flooring ” is an average car of 20,000 feet, and according to the same usage and custom the letter “B” is used to represent and specify a particular grade of flooring which was well known to defendant and all dealers 'in lumber, and the abbreviation “Bet.” and the letter “m,” according to the said usage and custom, stand for the words “Better” and “thousand” respectively; that the usage and custom referred to was well known to the defendant, that the plaintiff and the defendant contracted with reference to it, and that it became by implication of law a part of the contract sued on in this case. It is alleged that under the law, shipment and delivery of the flooring in question should have been made within a reasonable time after instructions for shipping were given, no particular time for shipment being stipulated in the contract; that the time between June 26, 1919, and the date on which this suit was begun, September. 17, 1919, was a reasonable time within which to comply with the contract, but the defendant failed and refused to ship said lumber within said time, and the failure to ship within said time constituted a breach of the contract. It is alleged that the market price of the flooring described was $80.50 per thousand feet on September 17, 1919; and the plaintiff sues for the difference between this price and the contract price.

A. A. & E. L. Meyer, for plaintiff in error,

cited: 21 Ga. App. 114-; 116 Ga. 108; Elliott, Contracts, secs. 6, 7, 26, 30, 36, 37, 38, 4-2; 13 Corpus Juris, 266-7, 281-2; 93 Mich. 491 (24 L. R. A. 357); Civil Code (1910), § 3222, par. 7; Ell. Con., secs. 1213, 1302; 137 Ga. 411; 81 Ga. 704; 73 Ga. 400; 100 Ga. 645; 110 Ga. 159; 112 Ga. 359; 123 Ga. 415; 125 Ga. 198; 127 Ga. 574; 141 Ga. 713; 2 Ga. App. 73; 19 Ga. App. 53. 11 Ga. App. 742 and 21 Ga. App. 160, distinguished.

Napier, Wright & Wood, contra,

cited: 5 Ga. App. 436; 11 Ga. App, 744 ; 21 Ga. App. 114 (2), 160


text:
    11504.
    Elrod v. The State.
    Indictment for sale of liquor; from Gordon superior court-—■ Judge Tarver. April 17, 1920.
    1. Carl Elrod was convicted at tlie February adjourned term of the superior court of Gordon county, 1920, under an indictment which charged that he sold intoxicating liquors on January 1, 1920. One of the grounds of his motion for a new trial was as follows: “ The court erred in overruling movant’s motion for a continuance, made in said case when said case was called for trial. This defendant, being sworn on said motion for continuance, testified: ‘The indictment in this case was returned yesterday afternoon. I at once sent for Mr. Eubanks to come to the jail and see me, and he came after dark. I have been in jail since Monday; this is Thursday. I gave him the names of the witnesses he wanted in this case. I gave him the names of J. D. Elrod, Mr. Willerson, John Osborn, and John Lay, and told him to have them summoned. Lay and Osborn are here, and my father and Mr. Willerson are absent. They are absent without my consent. I want them here. I expect to have them in court to-morrow morning at the meeting of the court, and I can not go safely to trial without them. My father lives over in Murray county, and Willerson lives up here in Gordon county. I expect to prove by each of them that they were at my house on last Sunday afternoon when Bob Steele came there, and they will swear that I did not let Bob Steele have any whisky, and that Bob Steele did not get any whisky at my place. These two absent witnesses are white men. Lay and Osborn are here and are negroes. This showing is not made for delay, but to got the testimony of the above witnesses.’ T. M. Watts, sheriff of Gordon county, testified on said motion: ‘The subpoenas for the defendant’s witnesses in this case were placed in my hands early this morning. I have,, had Lay and Osborn served. I have not had time to have Elrod and Mr. Willerson served. Mr. Willerson lives in the upper edge of this county, and Mr. Elrod over in Murray county in this State.’ M. B. Eubanks, attorney for defendant, stated in his place: ‘Last night while at supper the defendant sent for me to come to the jail to see him. I went as soon as I finished my supper. The bills had been returned and placed on the docket yesterday afternoon. When I got to the jail the defendant gave me the names of four witnesses above referred to. When I came back to the courthouse last night, the court still being in session trying the Byrd case, I gave the list of witnesses to the clerk, who issued them last night, and I instructed that they be served at once.’ The court overruled the showing for a continuance and ordered the ease to go to trial, which was done.” It is alleged that this was error because the movant’s showing was complete and the evidence showed that he had exercised due diligence in obtaining the presence of his witnesses, and the court, in overruling the motion for a continuance, denied to him his legal and constitutional right to have compulsory process for -attendance of witnesses in his behalf.
   Bloodworth, J.

1. Under all the facts of this case this court can not say that the judge abused his discretion in refusing to continue the case.

2. When considered in connection with the entire charge, there is no error in the excerpt therefrom of which complaint is made.

3. There is ample evidence to support the verdict.

Judgment affirmed.

Broyles, C. J., concurs. Luke, J., dissents.

On the trial E. King testified for the State that “on last Sunday” he and Bob Steele bought whisky from Carl' Elrod in Elrod’s house; and that he (the witness)- and Bob Steele went into the house together, and he did not see any other person there. Jim Johnson testified that he bought liquor from Carl Elrod eight or nine times, or more, in the last two years; “week before last was the last time” he bought any whisky from Elrod; E. King, Bob Steele, and others were there; he was not at Elrod’s house on Sunday; he bought some from Elrod at Bob Steele’s house “nearly two years ago.” Amos Boze testified that he bought whisky from Carl Elrod twice, some of it since Christmas; that he was at Elrod’s house Sunday, and got whisky, but did not then see Elrod; that another person went into the house for the whisky. Bob Steele did not testify. John Osborn and John Lay testified for the defendant that they were at the defendant’s house “last Sunday” afternoon, and did not see any whisky. The defendant made a statement at the trial, denying that he had sold whisky to- Steele or’ the others named in the testimony as purchasers.

2. In charging the jury as to conflicting testimony, the court charged that it was their duty to reconcile such conflicts, if possible, so as to make each witness speak the truth, and without imputing perjury to anybody, “the law presuming that they are all honest and tell the truth, until the contrary appears by proof.” Exception is taken to the concluding part of this instruction, the defendant contending that in criminal cases there is no presumption as to the credibility of witnesses, and that the effect of this language was to place upon the defendant the burden of proving that the State’s witnesses were not honest and were not telling the truth.

Cited as to presumption of credibility: Cornwall v. State, 91 Ga. 278 (5).

M. B. Eubanks, for plaintiff in error.

J. M. Lang, solicitor-general, contra.


author:
Per Curiam.
      Luke, J.,

text:
    11506.
    JOHNSON v. THE STATE.
    Decided July 14, 1920.
    Refusal to continue tlie ease because of absence of witnesses was not error requiring a new trial of this case.
    The conviction of the accused, was demanded by the evidence.
    Indictment for misdemeanor; from Whitfield superior court—■ Judge Tarver. April 17, 1920.
    The indictment charged the accused with having solicited, directed, and procured a named female to have sexual intercourse with certain persons named. It was testified that he went,to her when she was at the railroad depot at Yarnells and told her that he was going to arrest her, took handcuffs out of his pocket, and said he would drag her off if she. did not go with him; that she said she was going to leave and had her railroad ticket in her stocking; that he took her with him to a cemetery, to which they were followed by a crowd of boys, and told her that he was going to take her to jail, but if she would permit the boys-—-about fifteen or twenty in number — to have sexual intercourse with her, he would turn her loose; that she told him she was an orphan girl 'and had no one to help her or go on her bond, and did not want to do this, but finally said she would do so in order to get loose and keep out of jail, that several, including persons named in the inidictment, did have sexual intercourse with her there, while the defendant walked back and forth near them, laughing, and when they had all finished he let her go. No witness testified for the defendant, but in his statement at the trial he said that certain persons named came to him when he was trading at a store, and asked him to arrest a woman at the depot, who, they said, was “cutting up,” and he went to her and told her she had been reported for bad conduct, and if she did not “ cut it out ” he would have to take her oil; that she said she was going to Chattanooga, and promised to leave if he would not bother her, and he went off, and the next thing he knew “they were raising sand up at the graveyard.” In testimony in support of his motion for a continuance he gave the names of certain persons by whom he expected to prove that they were at the depot when the boys took the woman and ran off with her, and that he did not arrest her and had nothing to do with taking her from the depot.

      George G. Glenn, for plaintiff in error.

      J. M. Lang, solicitor-general, contra.
   Per Curiam.

The amendment to the motion for a new trial (construed as a whole) shows that the defendant’s counsel made an informal request or motion that the case be passed until the following day, and followed this by a formal motion for a continuance of the ease on account of the absence of certain witnesses. Upon the hearing of the motion the defendant failed to state that the witnesses were absent without consent, or that he expected to be able to procure their testimony at the next term of court. The motion, therefore, did not come up to all the requirements of the statute, and the court did not err in overruling it. While the defendant’s attorney, during the hearing of the motion, stated that he had not had time to prepare the case and would be ready to try it on the following day, his formal motion for a continuance did not include this ground, but was based entirely upon the ground of absence of witnesses. Moreover, it appears from the record that the defendant had been arrested and bound over for this crime some weeks before his trial, and that he made no effort to have the absent witnesses subpoenaed until after he was indicted. Under these circumstances this court can not say, as a matter of law, that the defendant exercised all proper diligence in the premises and that the court erred in overruling the motion for a continuance.

The evidence demanded the defendant’s conviction, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.

Luke, J.,

dissenting. I think, under the showing, the trial of the case should have been postponed.


text:
    11511.
    Phillips v. Jacobs.
    Decided July 14, 1920.
    Complaint; from city court of Carrollton — Judge Beall. April 1, 1930.

      Emmett Smith, for plaintiff in error.

      I. N. Cheney, contra.
   Broyles, C. J.

There being some conflict in the evidence as to material issues, the court .erred in directing a verdict for the plaintiff, a verdict in his favor not being demanded.

Judgment reversed.

Luke and Bloodworth, J., concur.


text:
    11514.
    Wolfork v. The State.
    Decided July 14, 1920.
    Indictment for burglary; from Floyd superior court — Judge Wright. April 3, 1930.

      W. B. Mebane, for plaintiff in error.

      C. H. Porter, solicitor-general, contra.
   Luke, J.

Under all the facts of the case, and especially the incriminatory admissions and conduct of the defendant after he was charged with the burglary, his conviction was fully authorized by the evidence.

In the light of the court’s charge, it was not error, in the absence of a timely and appropriate written request, to fail to charge specifically on the law of circumstantial evidence. See, in this connection, Shaneyfelt v. State, 24 Ga. App. 555 (3) (101 S. E. 592).

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    11520.
    Stanton v. Parham.
   Broyles, C. J.

The motion for a new trial contains only the usual general grounds; the evidence for the defendant in error, while not in all respects satisfactory, authorized the verdict, and, the finding of the jury having been approved by the trial judge, this court is without authority to interfere.

Decided July 14, 192Ó.

Foreclosure of lien; from Wilkes superior court — Judge Walker. April 12, 1920.

Colley & Colley, for plaintiff in error.

C. E. Sutton, contra.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11523.
    Housley v. Wagner.
    Decided July 14, 1920.
    Action on foreign judgment for alimony; from city court of Savannah — Judge Freeman. March 31, 1920.
    The petition describes the plaintiff as “Margie E: Wagner, formerly Margie Ethel Housley,” and alleges, that J ames W. Housley, the defendant, is now a resident of Chatham county, Georgia; that on September 15, 1917, in the district court of Canadian county, State of Oklahoma, the petitioner obtained a judgment against him, a copy of which is attached to the petition, and that he has failed and refused to pay her the amounts due under it for specified months beginning March, 1918, to wit, $50 per month, and is indebted to her in the sum of $1,000, for which she prays judgment. The petition was filed October 20, 1919. In the judgment referred to it is adjudged and decreed that Margie Ethel Housley be granted an absolute divorce from James W. Housley, that she have the custody and control of their minor child, and that she have judgment for alimony in the sum of $50 on the first day of every month thereafter, and that the divorce shall not take effect until the expiration of six months from the date of the judgment.
    The defendant demurred on the grounds that the petition fails to set out a cause of action and is insufficient in law, and that it fails to show when and how the plaintiff became Margie Ethel Wagner. In the brief of counsel for Housley it is contended that the general demurrer should have been sustained because it does not appear that the judgment is entitled to enforcement in this State under the “full faith and credit clause” of the constitution of the United States (art. 4, sec. 1), since it is not shown to be final; that this provision of the constitution' does not apply to a judgment or decree that may be modified. It is further contended that the change of the plaintiff’s name indicates that she has remarried and is attempting to collect alimony from her former husband while living with and probably supported by a second husband, and that she should allege when she remarried. Opposing counsel contend in their brief that the demurrer is not sufficient to raise the question as to the finality of the judgment.
   Broyles, C. J.

The court did not err in overruling the demurrer to the petition.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Seabrook & Kennedy, for plaintiff in error,

cited: On the first contention: Page v. Page, 189 Mass. 85 (75 N. E. 92); Cureton v. Cureton, 132 Ga. 745 (2); Civil Code (1910), § 2978. As to alimony after remarriage: 14 Cyc. 787; 1 Ruling Case Law, 934, § 80; Id. 950, § 96; . 60 Am. Dec. 672, notes; Cohen v. Cohen, 150 Calif. 99 (88 Pac. 267, 62 L. R. A.. 975, note); Cole v. Cole, 142 Ill. 19 (31 N. E. 109, 34 Am. St. R. 56,19 L. R. A. 811); Wetmore v. Wetmore, 162 N. Y. 503 (56 N. E. 997, 48 L. R. A. 666).

Gignilliat & O’Neal, J. S. Harrison, Morris H. Bernstein, contra,

.cited: On the first proposition: Sistare v. Sistare, 218 U. S. 1 (28 L. R. A. (N. S.) 1068, 20 Ann. Cas. 1061); Coffee v. Coffee, 101 Ga. 787; Woodall v. Woodall, 147 Ga. 676; Wilkins v. Wilkins, 146 Ga. 382; Cureton v. Cureton, supra (distinguished); Stanfield v. Stanfield, (Okl., 1917) 168 Pac. 912. As to re-marriage: McGill v. McGill, 101 Kans. 324 (166 Pac. 501); King v. King, 38 Ohio St. 370; 14 Cyc. 787, and cit.; 1 Ruling Case Law, 950. As to demurrer: Douglas &c. Ry. Co. v. Swindle, 2 Ga. App. 550.


text:
    11524.
    PITTSBURG PLATE GLASS CO. v. AUSTIN
    Decided July 14, 1920.
    The verdict was authorized by evidence, and for no reason assigned was it error to overrule the motion for a new trial.
    Complaint; from Irwin superior court-—Judge Eve. March 31, 1920.

      Winfield Payne Jones, Melvin Meeks, for plaintiff.

      Quincey & Rice, for defendant.
   Luke, J.

The plaintiff sued upon a promissory note, and the defendant pleaded that the note was given to suppress a criminal prosecution against one Hudson, an employee in the plaintiff’s office, who was alleged to be short in his accounts; and, further, that it was given with the express understanding that Hudson would be retained in the employ of the plaintiff, and that a certain sum would be deducted monthly from his salary and applied to the note, until payment of the note in full, but that immediately after the note was given he was peremptorily discharged from the plaintiff’s employment. The evidence for the plaintiff, if believed by the jury, would have authorized a verdict for it, and the evidence for the defendant would have authorized a verdict for him. The jury believed the defendant’s side of the case and found a verdict in accordance therewith. This verdict has the approval of the trial judge. The charge of the court was full and fair and submitted clearly the issues raised by the pleadings, and is not subject to the criticisms urged. For no reason assigned was it error to overrule the motion for a new trial. See McConnell v. Cherokee National Bank, 18 Ga. App. 52 (88 S. E. 824), and cases cited: Jones v. Dannenburg, 112 Ga. 426 (37 S. E. 729, 52 L. R. A. 271); Wilson v. Carter, 4 Ga. App. 349 (61 S. E. 494).

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    11526.
    Goldberg v. Nelson.
    Decided July 24, 1920.
    Rehearing denied July 28, 1920.
   Broyles, C. J.

The judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Certiorari; from Fulton superior court — Judge Bell. April 5, 1920.

Application for certiorari was denied by the Supreme Court.

Roy Lewis, for plaintiff in error.

Lowndes Calhoun, contra.


text:
    11530.
    Rogers v. The State.
    Decided July 14, 1920.
    Indictment for manufacture of intoxicating liquor; from Burke superior court — Judge Henry C. Hammond. April 17, 1920.
    J. L. Rogers was convicted under an indictment which charged him with the making of intoxicating liquors. A 40-gallon copper still, complete,' was found in a hollow log near a creek or branch in a swamp at a distance estimated to be five or six hundred yards from the house in which the defendant' lived and which he spoke of as “ my house; ” and near the still were six or seven barrels of mash — about 400 gallons of mash. Ten or fifteen bottles of liquor were found buried in a sapling thicket within two or three hundred yards of the house. A bottle of it, which a witness called “corn liquor,” was inspected by the jury. It was testified that “ there were no houses around the still in sight,” and “ there was no other house 'around there at all; the closest house to Rogers was about half a mile.” A witness testified: “I don’t know whose field that was nearest Rogers’ house; he said it was his field. I don’t know whose field it was on the other side of the branch; he said it was a negro’s.” There was “ a negro house right across the branch there.” The witnesses who found the still and the mash and liquor testified that they did not go on the other side of the branch. Rogers lived with a woman and several children, referred to as “his family;” and it was testified: “Nobody lives at Rogers’ but this woman and children; I mean nobody to make liquor.” Officers searching for the still had found Rogers in the house, half drunk, with a flask of liquor in his pocket, and arrested him, and left the housej to continue their search, leaving him under the charge of an officer. A small boy, who had come from the house with another boy, was seen trying to hide a bottle of liquor in the sand, and the officers “took the little boy in the house, and asked the mother,” in the defendant’s presence, “would she send one of the larger boys to show where the still was.” The defendant said, “I am running this house, not you.” The woman “ sent the children with them to go and show the still, and she was standing near [Rogers.” They went down to the branch, and, after the still and the barrels of mash had been found, the children told the officers where the liquor was, and they began digging it up. It was testified that while the officers were in the house with the defendant “ his family said,” in his presence, that the still “was run all Friday night.” It was then Sunday morning, and when they found the still “it looked as if it had been run on Friday night before, because of the coals of fire and the mud around there.” One of the officers testified: “ A path went right out from the house to and through an old field and saplings to the branch. There is an old road that runs down there, and there is a kind of three-pronged road that goes down there; . . we went that road to the branch and didn’t cross the branch, and kept down the road to the still. We followed that road down toward the still and then went in a path; a buggy had been on the road a part of the way. It could be used for a road or path. I don’t think the road stopped at the branch. It went over to another field.” The road goes from one public road to another; there are paths on both sides of the branch. The substance of the defendant’s statement at the trial was that he denied to the officers that he had any liquor or still, and did not hear “any conversation with the woman at all.”
   Broyles, C. J.

The motion for a new trial contained, only the usual general grounds. The evidence, while circumstantial, was sufficient to exclude every reasonable hypothesis save that of the defendant’s guilt, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

E. M. Price, Joseph Law, for plaintiff in error,

cited: Ga. App.: 14/598; 16/291; 21/655; 23/144; 23/785.

A. L. Franklin, solicitor-general, John M. Graham, contra,

cited: Ga. App.: 21/493 (1) 21/49 (Cole v. State).


text:
    11534.
    Wood v. The State.
    Decided July 14, 1920.
    Indictment for larceny, etc.; from Walton superior court — Judge Cobb. April 22, 1920.
    On both counts of an indictment charging larceny and the receiving of stolen goods Lillious Wood was found guilty. Two bales of stolen cotton were hauled by his wagon and his mules to his premises at night and were left there. Other persons indicted for the theft pleaded guilty, and, as witnesses in his behalf, testified that he h¿d nothing to do with it. The State relied on evidence as to tracks of a horse and buggy, and other circumstances, to show that he was present when the cotton was taken from the owner’s premises. The owner testified: “ The next morning after the cotton had been stolen I set out to find it. . . I found buggy tracks and horse tracks where the cotton was stolen. It was a rubber-tired buggy, nearly new. The horse was shod in front and barefooted behind. I measured the horse’s foot where he was shod. The buggy was driven up in line where the cotton' was loaded. One of the horse’s tracks showed one of his hind feet was reel-footed; he made a one-sided track which showed very distinctly. I measured the horse’s track and- . . went to the pasture where this horse was and measured his foot, laid it on there like I did on the track, and it fit exactly; it was Lillious Wood’s horse. Lillious Wood had a rubber-tired buggy. We found it under the shed that morning in his yard. . . When I first saw those horse tracks it was across the railroad from my house, and it had turned out the edge of the road. It had rained the day before. It was very distinct. The buggy went out in a sandy place. I found the horse in Lillious Wood’s pasture, and took the measurement of the tracks at the railroad crossing and at Lillious Wood’s place. Lillious Wood’s place is about a mile from where I found the tracks. . . I swear it was the same track, as the tracks in the pasture corresponded with the other tracks. I don’t know [whether] anybody else around has a rubber-tired buggy or not.” Another witness testified that at sundown on the day before the finding of the tracks he saw Lillious Wood driving a horse to a rubber-tired buggy, and that the horse tracks were found near the house of Bailey, the owner of the cotton. “The horse was shod in front and barefooted behind. I saw the same tracks in Lillious Wood’s yard. We measured them, and then the horse’s foot. ... I tracked the horse and measured the track; the same horse made them.” The other defendants testified that they went to Wood’s house in his absence, about 8 o’clock at night, and got his wagon, hitched his two mules to it, drove them off, and got the two bales of cotton; that he was not with them and did not know anything about it; that they had made no arrangement to borrow the wagon; that when they returned to his house that night, bringing the cotton with them, it was 12 o’clock; that when they reached there he was coming through a field with a lantern and was driving his cow; that he “had just come from thesshow;” that they asked him to sell the cotton, but he refused to have anything to do with it, and told them to take it away, and said that if anybody came there and asked about it he was going to tell who got it; and-that they then carried it back of his house and threw it down; according to the testimony of one of them they threw it down in the defendant’s pasture; it was also testified that they threw it down in the woods. Witnesses for the State testified that they found the cotton covered by bushes near a branch in Wood’s pasture, about 200 yards back of his house, and saw wagon tracks which led from his house and over very rough ground, down a steep hill to where the cotton was found. A constable testified: “After finding the cotton we went back to Lillious’s house; he was not at home, but at his mother’s place, loading cotton. I told him to come down off the wagon. I arrested him. Ilis wife and mother came up and wanted to know what was the trouble, and Lillious said, ‘ About that cotton last night.’ He said he told those boys that if anybody came there he was going to tell them about the cotton,” and he gave the names of the boys that took the cotton.
   Broyles, C. J.

The evidence relied upon to convict the defendant was circumstantial and was not sufficient to exclude every reasonable hypothesis save that of his guilt. On the contrary, it was consistent with the theory of his innocence. The court therefore erred in overruling the motion for a new trial.

Judgment reversed,

Luke and Bloodworth, JJ., concur.

It was testified that on the night on which the cotton was stolen there was a carnival in the town of Social Circle, which was “ three or four miles from Lillious’s house and about the same 'distance from Mr. Bailey’s house,” and that Lillious Wood and his wife “came in” and were at the carnival between 11 and 12 o’clock that night. Another witness testified that he saw Lillious Wood “ about the middle of the evening,” driving a horse to a buggy, past the house of the witness, a mile from Lillious’s place. Eli Pritchard testified that he was a prisoner in the jail with Lillious Wood and the other defendants charged with the larceny of the cotton and “heard them make a conspiracy to put the crime on Bob Cobb and to clear Lillious Wood, and say that Bob Cobb told them to go and get the cotton and bring it to Lillious’s house,” and that if this could be done, Lillious would pay the rest out of jail. The statements of this witness were denied by Lillous Wood in his statement at the trial, and by the other defendants who testified. Wood denied that he had any connection with the crime, and his statement accorded substantially with that of the other defendants as to what occurred when the cotton was brought to his home. -He said that when he told them to take it away, they “went off down in the woods somewhere,” and he did not know, where they carried it.

It was contended on the part of the accused that there was not sufficient evidence to authorize a conviction on either count of the indictment, and that the verdict finding him guilty on both counts was inconsistent and void; and on the latter proposition his counsel cited: 128 Mass. 60; 104 Ill. 565; 1 Bish. Crim. Proc. (2d ed.), chap. 30, sec. 7; 16 Corpus Juris, see. 2596, subhead 5, note 36 A. Cited contra: 21 Ga. App. 328 (2).

Frank D. Pierson, George F. Fielding, for plaintiff in error.

W. O. Dean, solicitor-general, contra.


text:
    11539.
    Perry v. The State.
   Luke, J.

The evidence authorized the defendant’s conviction under the second count only of the indictment; and although he was convicted and sentenced under both the first and the second counts, this error was cured by the subsequent judgment of the court (rendered during the same term of the court and before the defendant had begun to .serve the original sentence Imposed upon him), striking the sentence imposed under the first count and allowing only the sentence imposed under the second count to stand.

Decided July 14, 1920.

Indictment for robbery; from Chatham superior court — Judge Meldrim. April 9, 1920.

The first count of the indictment charged robbery by force and intimidation, and the second count charged robbery by sudden snatching.

Aaron Kravitch, for plaintiff in error.

Walter C. Hartridge, solicitor-general, contra.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    11556.
    Arwood v. The State.
    Decided July 14, 1920.
    Indictment for vagrancy; from Whitfield superior court — Judge Tarver. April 30, 1920.
    A witness testified: “I am chief of police of Dalton, in Whitfield county, Georgia. The defendant lives in Dalton and has lived here for several years. She is 25 years, or more, of age. She is a woman of lewd reputation. I have never known her to do any work. She is addicted to the use of morphine, and has been treated for the dope habit by the county physician since, she was placed in jail. I do not know how she lives. She has been staying with her mother, who is very poor and unable to support her. I arrested her upon the complaint of her mother. She is physically able to work. She has no property 'that I know about. ’’ The clerk of .the court testified: “ The defendant was in my office not long ago. . . While there she used a great deal of vulgar and profane language. Among other things she said she had been out ‘last night with a damned good man.’” It was also testified that she had been seen seated on church steps about 10 o’clock on a certain night, and that when the witness and another man offered to take her to her home she said that she did not need any assistance, that she had sat down merely to take off her shoes to rest her feet. The defendant’s statement at the trial was as follows: "My mother had my brother arrested for using morphine, and after he had been in jail for five days I came down and asked to be locked up to get off of the dope myself. I got off of the dope while I was in jail, 'and do not want any more.”
   Broyles, C. J.

The evidence, while weak, authorized the defendant’s conviction of the offense of vagrancy, and, the finding of the jury having been approved by the trial judge, this court is without authority to interfere.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

William E. Mann, W. Gordon Mann, for plaintiff in error,

cited: 17 Ga. App. 742; 119 Ga. 427, and cit.

Joseph M. Lang, solicitor-general, contra.


text:
    11562.
    Thompson v. The State.
    Decided July 14, 1920.
    (Certiorari was granted by the Supreme Court.)
    Indictment for assault with intent to murder; from Forsyth superior court — Judge Blair. April 24, 1920.
    Error in not charging the jury that they had the right to recommend a misdemeanor punishment is alleged in the motion for a new trial. The verdict fixed the punishment at " not less than two years nor more than two years.” It is contended that the provisions of the Penal Code (1910), § 1062, as to the right of the jury to recommend that a felony (except as otherwise provided therein) be punished as a misdemeanor, were not altered or affected by the act of 1919 (Ga. L. 1919, p. 387), which provides that in eases of felony not punishable by life imprisonment the jury shall prescribe a minimum and maximum term of punishment.

      J. P. Brooke, for plaintiff in error.

      John T. Dorsey, solicitor-general, William Butt, contra.
   Luke, J.

1. No exceptions pendente lite to the overruling of the demurrer were filed. The judgment on the demurrer was rendered on April 1, 1920, and the bill of exceptions was tendered to the judge on May 1, 1920, more than 20 days after the overruling of the demurrer, and hence the assignment of error on that judgment was made too late and cannot be considered.

2. The evidence in this case authorized the conviction of the defendant, and the charge of the court, when read in its entirety, was full and fair and not subject to the criticisms urged in the defendant’s motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    11566.
    Neal v. City of Dublin.
    Decided July 14, 1920.
    Petition for certiorari; from Laurens superior court—-Judge Kent. March 25, 1920.
    On the charge of idling and loitering in violation of an ordinance of the City of Dublin, Neal was convicted in the recorder’s court of that city. The only witness at the trial testified: “I have seen [the defendant] in the City of Dublin, . . walking along the streets. . . If he had any occupation I did not know it; he did not have any that I knew of. He would be standing around when I saw him, whittling and talking. Would see him all times of the day and night. I asked him what he was doing, and he said he wasn’t doing anything. I have seen him in the last six months around on the streets here in Dublin. I have never seen him at work. I couldn’t say he didn’t work, but I have never seemhim at work.” The ordinance referred to provides that “ Any person who in this city is found loitering, rambling, wandering, prowling, or loafing about the streets, alleys, public thoroughfares, or premises in the daytime or nighttime, and who can not give a good account of himself or herself, shall be arrested and upon conviction shall be punished as prescribed in . . . this code.”

      W. A. Dampier, for plaintiff in error.

      T. W. Evans, contra.
   Broyles, C. J.

The judgment of the recorder of the City of Dublin was not without some evidence to support it, and the' judge of the superior court did not err in refusing to sanction the certiorari.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11569.
    LEATHERWOOD v. THE STATE.
    Decided July 14, 1920.
    Intent to kill will not, as a matter of law, be presumed from an attack with a deadly weapon, where death has not ensued; and on “a trial for the offense of assault with intent to murder the court should instruct the jury, in effect, that the burden is upon the State to show, beyond a reasonable doubt, that the alleged assault, if made by the defendant, was made with the specific intent to kill. The failure to give such an instruction in this case requires a new trial.

      Indictment for assault with intent to murder; from Haralson superior court-—-Judge Irwin. April 22, 1920.
    The indictment charged Leatherwood with an assault 'with intent to murder McClung by shooting at him with a shotgun; and the accused was convicted of that offense. McClung testified, that while he was in his house, between 11 and 12 o’clock at night, he heard the noise of his calf bleating and running, and went out on the veranda of the house to see what caused it, and the defendant, who was standing about six or eight feet from the veranda, pointed a double-barrel shotgun directly at him and shot, and the load from the gun struck a post between them and went into the side of the house. The defendant, by his statement at the trial and by the testimony of several witnesses, attempted to establish an alibi. One of the grounds of his motion for a new trial is that the court charged the jury as follows: “ If you believe, beyond a reasonable doubt, that the defendant shot the prosecutor, McClung, with a weapon likely to produce death, you would be authorized to find him guilty.” It is alleged that this was error, because the court failed to charge the jury, in this connection or elsewhere, that in order to authorize a verdict of guilty of assault with intent to murder, the jury must believe, from the evidence, that the defendant shot with intent to kill McClung.

      J. M. McBride, for plaintiff in error.

      J. R. Hutcheson, solicitor-general, Griffith & Matthews, contra.
   Luke, J.

The defendant was charged with the offense of assault with intent to murder. Error is assigned upon the judge’s failure to charge the jury that the evidence must be sufficient to satisfy them that the defendant shot with intent to kill. This assignment of error is well taken. Where death does not ensue, the intent to kill cannot be a matter of legal presumption* but must be discovered from the evidence. 'For this reason, in every trial for the offense of assault with intent to murder, the jury must be instructed, in effect, that the burden is upon the State to show, beyond a reasonable doubt, that the alleged assault, if made by the defendant, was made with the specific intent to kill. See Gilbert v. State, 90 Ga. 691 (16 S. E. 652); Gallery v. State, 92 Ga. 464 (2) (17 S. E. 863); Wimberly v. State, 12 Ga. App. 540, 542 (77 S. E. 879). The other alleged errors are such as will not likely recur on another trial. It was error to overrule the motion for a new trial.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.


author: Stephens, J.

text:
    10769.
    Producers Company v. Empire Cotton Oil Company.
    Decided May 5, 1920.
    Adhered to on rehearing, September 27, 1920.
    Action on contracts; from Eulton superior court — Judge Pendleton. June 26, 1919.
   Stephens, J.

1. While the terms of a written contract cannot be varied by a contemporaneous parol agreement, yet it is permissible to show the existence of a custom of the trade or business, not at variance with such terms, concerning which the contract was made, which is of such universal practice as to justify the conclusion that the custom by implication became a part of the contract. Branch v. Palmer, 65 Ga. 210 (1).

2. Where a written memorandum of sale between two dealers in certain commodities contains the following provisions as respects the delivery of the commodity sold: “ Shipment March ” and “ Shipment April,” it is permissible to explain the meaning of these expressions by showing the existence of a custom or usage among the trade or dealers of such commodities that shipments of commodities when sold on future delivery are not necessarily to be actually made at the time designated in the written memorandum of sale unless delivery is at the time tendered by the seller or demand is made by the buyer, and that where no such tender or demand is made, the time of the delivery is automatically extended from month to month until a tender is made by the seller or a demand is made by the buyer. Such custom does not change, vary or contradict the terms of the contract as respects delivery, but adds a provision, perfectly consistent with the terms of the contract, to the effect that the deliveries contracted for are only to be made upon a tender by the seller or a demand by the buyer, and that in the absence of such tender or demand, the contract is automatically renewed or extended for a month.

3. An agreement between the seller and the buyer to extend the time for the performance of such a contract, “providing the United States Rood Administration would allow it,” it not appearing that the United States Rood Administration did allow it, was void for uncertainty; and it was therefore proper, on special demurrer, to strike paragraph 3 of the amendment to the petition.

4. The petition as amended, with paragraph 3 of the amendment stricken, set out a cause of action, and, not being subject to the other special demurrers interposed, was improperly dismissed on general demurrer.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.

Application for certiorari was denied by the Supreme Court.

Producers Company sued Empire Cotton Oil Company, alleging a breach of two written contracts by which the defendant agreed to sell to the Producers Company certain peanut product, which under the terms of one contract was to be delivered in March, 1918, and under the terms of the other contract was to be delivered in April, 1918. The plaintiff alleged that both contracts were breached by the defendant in failing to deliver on demand, in July, 1918, and sued for damages accordingly. By amendment to the petition it was alleged.: (1) that there was a custom or usage of the trade among people dealing in peanut products, to the- effect that when, under a contract of sale, such products were to be shipped during a named month in the year, and delivery was not demanded by the purchaser during that month, and there was likewise no tender of delivery by the seller, the time of delivery was automatically extended from month to month until either the purchaser made demand upon the seller for delivery or the seller tendered delivery to the purchaser; and in paragraph 3 of the amendment (2) that there was an agreement between the seller and the purchaser to extend the time for the performance of the contract, “providing the United States Pood Administration would allow it; ” but there was no allegation that the United States Food Administration did consent or allow an extension of the time for performance. The trial judge sustained a special demurrer to this amendment, and, on general demurrer, dismissed the petition as amended.

Napier, Wright & Wood, for plaintiff.

King & Spalding, for defendant.


text:
    11575.
    Stanford v. The State.
    Decided July 14, 1920.
    Accusation of carrying pistol; from city court of Macon — Judge G-uerry, April 20, 1920.
   Broyles, C. J.

The evidence demanded the conviction of the defendant and the court did not err in overruling his motion for a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

The accusation charged the carrying of a pistol concealed, and the carrying of a pistol without having obtained a license; and there was a general verdict of guilty. The sole witness was a police officer, who testified, that he came up behind the defendant and collared him when the defendant and others were stooping down in a circle at a street corner, playing craps, and the defendant said “ Oh, Lordy,” and ran his hand in his left coat-pocket; the witness told him to take his hands out of his pockets, and he withdrew his hands, “and in his'hand was a .38-caliber pistol,” which he threw away from him; when he took his hand out of his pocket ,the witness saw the pistol.

John R. Cooper, W. O. Cooper Jr., for plaintiff in error.

Will Gunn, solicitor, contra.


text:
    11576.
    GRAY v. THE STATE.
    Decided July 14, 1920.
    The evidence authoried a conviction of the offense of pointing a pistol.
    Accusation of pointing a pistol; from city court of Macon — Judge Guerry. April 30, 1920.

      H. F. Rawls, W. J. Grace, for plaintiff in error.

      Will Gunn, solicitor, contra.
   Luke, J.

This case is here upon the overruling of a motion for a new trial, based upon the usual grounds which challenge the sufficiency of the evidence to authorize the defendant’s conviction. The case was by agreement heard by the judge of the city court without the aid of a jury, the testimony offered by the State justified the conviction of the defendant, and the judge believed this testimony in preference to the testimony of the defendant. It was not error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    11591.
    LANIER v. THE STATE.
    Decided July 14, 1920.
    1. Where refusal to continue a case is complained of in a ground of a motion for a new trial, the showing made in support of the motion for a continuance should be set out in the ground or in an exhibit attached to it.
    2. The rule as to simple larceny, that the thief may be indicted in any county into which he has carried the stolen goods (Penal Code of 1910, § 152), includes larceny of an automobile, although, under the act of 1916 (Ga. L. 1916, p. 154; Park’s Code Supp. 1917, Penal Div. § 187-1/2), larceny of an automobile is a felony.
    Indictment for larceny of automobile; from Franklin superior court—Judge Hodges. April 19, 1920.

      Alexander S. Johnson, for plaintiff in error.

      A. S. Shelton, solicitor-general, contra.
   Broyles, C. J.

Under repeated rulings of the Supreme Court and of this court, a special ground of a motion for a new trial must be complete and understandable within itself. In the instant case a special ground of the motion for a new trial is based upon the refusal of the court to grant a continuance on account of the absence of alleged material witnesses for -the defendant. The ground, however, fails to set out the showing made by the defendant in support of the motion, and it is not attached thereto as an exhibit. The ground, therefore, can not be considered.

Simple larceny is the wrongful and fraudulent taking and carrying away, by any person, of the personal goods of another, with intent to steal the same. The thief may be indicted in any county into which he may carry the goods. Penal Code (1910), § 152.

(a) While, under the act of 1916 (Ga. L. 1916, p. 154; Park’s Penal Code Supp. (1917) § 183%), the stealing of an automobile is a felony, it remains (like cattle or hog-stealing, which also are felonies) simple larceny.

(b) Under the above ruling and the facts of the case, the defendant, was subject to indictment in the county of Franklin.

The evidence authorized the verdict, and the .court did not err in refusing to grant a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.