text:
    9198.
    FREEMAN v. THE STATE.
    Where on the trial of one accused of gaming the evidence shows the presence of the defendant at the time and place of the gaming, but there is no evidence, direct or circumstantial, to show actual participation by the defendant in the game being played, and the evidence on behalf of the State is consistent with the defendant’s contention that he was not a participant in the game but merely an onlooker, the evidence is not sufficient to authorize a conviction.
    Decided December 19, 1917.
    • Accusation of gaming; from city court of Wrightsville — Judge Blount. September 8, 1917.

      Faircloth & Glaxton, for plaintiff in error.

      W. G. Brinson, solicitor, contra.
   Harwell, J.

David Freeman was convicted on an accusation of gaming. The evidence given upon his trial, briefly stated, was as follows: Jackson, the chief of police, having heard that certain negroes contemplated .meeting at the house of one Nath Neal at night to play “skin,” slipped up to this house and, peering in, saw seven or eight negroes sitting on the floor in a ring. He testified: “The defendant was lying down on his stomach and elbows, with his face towards or fronting the ring where they were all sitting. I can not say that the defendant David Freeman was playing cards. I saw Nath Neal shuffling cards; did not see the defendant have any cards in his hands.” This officer went off, returned with other officers, and went into the room. He says: “The defendant David Freeman, when we came back to the house and went in, was standing up in the floor.” Little, another witness for the State, who was present in the room where the card game was in progress, testified: “I did not see the defendant David Freeman playing cards, but he was sitting around where Nath Neal was shuffling the cards.” The evidence shows that there was some money in the ring. The evidence on behalf of the State does not sufficiently connect the defendant with the game of “skin” going on in the room. Neither the officer nor the witness Little saw him with a card in his hand, nor saw him handle any money or in any way participate in the game. When the officers came in to make a raid they found him standing up, and not engaged in playing. The evidence on his behalf shows that he had been standing up for several minutes before the officers came, and that he had not been gambling, but was merely an onlooker. We do not think the evidence, which is purely circumstántial, excludes every other reasonable hypothesis than that of his guilt; on the other hand, the-evidence for the State is altogether consistent in every particular with the defendant’s statement, in which he claims that he was lying down on the floor looking at the game, that he did not play any cards that night nor bet any money at cards. His mere presence where the gambling was in progress, without his connection therewith being shown, is not sufficient to sustain a conviction. See Griffin v. State, 2 Ga. App. 534 (58 S. E. 781); Cox v. State, 7 Ga. App. 22 (65 S. E. 1062). In the cases cited by the State’s counsel the facts showing the connection of the defendant with the gaming were stronger. In Hall v. State, 12 Ga. App. 571 (77 S. E. 893), there was circumstantial evidence showing that the defendant was actually playing cards; and the court in this respect differentiates that ease from the case of Griffin v. State, supra. Also, in Simmons v. State, 17 Ga. App. 288 (86 S. E. 657), the defendant had cards in his hands and money before him. In the case of Frost v. State, 120 Ga. 311 (47 S. E. 901), the conviction for gaming was upheld on facts very similar to those in the case at bar; but the circumstances tending to connect the defendant with the gambling were stronger. In that case the defendant was in the circle of players and was on his knees, a posture strongly indicative of actual participation in the game; in the instant case the defendant was lying out on the floor and resting on his elbows: the others present and actually engaged in the game were sitting up. Further, one of the. State’s witnesses, who' was present in the room when the game was in progress, testified that he did not see the defendant Freeman playing cards. "We are not willing to extend the ruling'in the Frost case, supra, to this case. Since the evidence in flic present record is not only insufficient to exclude every other reasonable hypothesis than that of the defendant’s guilt, but is altogether consistent with his assertion of innocence, we feel compelled to reverse the judgment of the lower court refusing him a new trial.

Judgment reversed.

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


source: Caselaw Access Project

author: Bboyi.es, P. J.

license: Public Domain

text:
    9199.
    Matthews v. City of Thomaston.
    Decided December 19, 1917.
    Certiorari; from Upson superior court — Judge Searcy. September 14, 1917.

      J. B. Davis, for plaintiff in error. Claude W or rill, contra. '
   Bboyi.es, P. J.

1. The petition for certiorari not affirmatively showing that the petitioner had given such a bond as is required by the statute (Acts 1902, p. 105, Park’s Ann. Code, § 5191 (a)), the court did not err in refusing to sanction the petition. Toliver v. Wrightsville, 17 Ga. App. 345 (86 S. E. 823); Hubert v. Thomasville, 18 Ga. App. 756 (90 S. E. 720); Gillespie v. Macon, 19 Ga. App. 1 (90 S. E. 970).

2. It is immaterial that the judge of the superior court based his refusal to sanction the petition for certiorari upon other grounds than the one referred to in the preceding note. He- reached the correct result, and his judgment is therefore affirmed. Memmler v. State, 75 Ga. 576 (1a) ; Kendricks v. Millen, 16 Ga. App. 273 (3) (85 S. E. 264); Flynn v. Hast Point, 18 Ga. App. 729 (90 S. E. 372).

Judgment affirmed.

Bloodioorth and Harwell, JJ., concur.


author: Bboyxes, P. J.

text:
    9217.
    Davenport v. Mayor and Council of Brunswick.
    Decided December 19, 1917.
    Certiorari; from Glynn superior • court — Judge Highsmith. September 30, 1917.

      Frank H. Harris, for plaintiff in error.

      J. T. Colson, contra.
   Bboyxes, P. J.

This case is controlled by the ruling in Matthews v. City of Thomaston, ante, 496.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


author: Bloodwobth, J.

text:
    9215.
    Joseph v. The State.
    Decided December 19, 1917.
    Accusation of sale of liquor; from city court of Brunswick— Judge Krauss. September 8, 1917.

      Frank H. Harris, for plaintiff in error.

      A. H. Orovatt, solicitor, A. D. Gale, contra.
   Bloodwobth, J.

Ho error is pointed out in any of the grounds of the motion for new trial which would warrant this court in setting aside the verdict, which is amply supported by the evidence and approved by the presiding judge.

Judgment affirmed.

Broyles, P. J., and Harwell, J., conciCr.


author: Harwell, J.

text:
    9216.
    Johnson v. The State.
   Harwell, J.

1. The court did not err, as contended in ground one of the motion for a new trial, in instructing .the prosecutrix that a .certain question propounded to her on cross-examination was argumentative, and that she need not’answer it.

2. Ground two of the amendment to the motion for new trial contains an entire page of questions asked by the court and by the solicitor-general of a witness for the defendant, and assigns error upon the questions asked by the court. It was the duty of counsel to'object to any improper question, whether propounded by court or by counsel; and it is both proper and necessary to move the court to exclude the answer of the witness, if. the answer is for any legal reason objectionable. Wilson V. State, 19 Ga. App. 759 (3), 763 (92 S. E. 309). The questions asked in this casé were not objected to, and there is no contention that the answers made were in any way objectionable. In addition, we are not able to say, from the recitals of the motion, that either the questions or answers were prejudicial or harmful.

3. Special grounds three and four) not being argued by counsel for plaintiff in error, will be treated as abandoned.

4. The court charged the jury as follows: “Good character in itself is a substantive fact which may, or may not, be sufficient to generate in your minds a reasonable doubt as to the guilt of the accused. If you believe him to be guilty beyond a reasonable' doubt, it is your duty to find him guilty, notwithstanding his good character.” This charge is a correct statement of the law, and there is no merit in the exceptions to segregated portions thereof, contained in special grounds five and - six of the motion for new trial. Brown v. Matthews, 79 Ga. 1 (4 S. E. 13); Partee v. State, 19 Ga. App. 752, 759 (92 S. E. 306); Hill v. State, 18 Ga. App. 259 (89 S. E. 351).

5. There is no merit in ground seven. If the defendant desired a further charge on the subject of good character, a timely written request therefor should have been made.

6. “In order that this court may consider an exception to the judge’s refusal of a request to charge, it must appear, not only that it was in writing, but also that it was tendered to the court before the jury retired to ‘consider of their verdict.’” The eighth special ground of the mption not alleging that the request for the desired charge on impeachment was timely made, the court did not err in refusing it. Shirley V. State, 5 Ga. App. 611 (63 S. E. 583).

7. The affidavits of jurors may be taken to sustain, but not to impeach, their verdict. Civil Code (191o), § 5933. Accordingly, the court properly overruled the ninth special ground of the motion for new trial," in which it was sought to attack the verdict by the affidavit of jurors only.

8. The fact that one of the jurors who sat on the case “had heard the testimony on a former trial” is no ground for the grant of a new trial, it not appearing that the juror, from having heard the testimony, had . .formed or expressed any opinion as to the guilt or innocence of the prisoner at the bar. Hence, the court did not err in overruling ground ten of the amendment to the motion for new trial.

Decided December 19, 1917.

Conviction of assault and battery; from Catoosa superior court —Judge Tarver. September 8, 1917.

Glenn & House, W. E. Mann, for plaintiff in error.

Joseph M. Lang, solicitor-general, contra.

9. The verdict is supported by the evidence, and has the approval of the trial judge; .and no error of law appearing which requires a reversal, • this court will not interfere.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    9218.
    Andrews v. The State.
    Decided December 19, 1917.
    Accusation of larceny; from city court of Hall county — Judge Wheeler. September 15, 1917.

      H. 0. Swindell, for plaintiff in error.

      Hammond Johnson, solicitor, contra.
   Bloodworth, J.

1. Where a motion for new trial was set for a hearing on a designated day in vacation, and counsel for both the defendant and the State appeared on that day, and, “after hearing from counsel for the State and movant, the court took the matter under consideration and stated that he would allow counsel for both' sides to file briefs,” the trial judge had the right to reserve his decision and to render and announce it at a later date in vacation (Central Railroad &c. Co. v. Farley, 89 Ca. 180, 15 S. E. 34; Dickerson v. Mann, 69 Ga. 729 (4)); and the fact that he may not have had jurisdiction to pass upon certain other questions at the time can not affect this right.

2. There was no error in allowing the brief of evidence to be amended. “The trial judge may amend a brief of evidence so as to make it speak the truth, even after it has been agreed upon by counsel, approved by the court, and filed.” Elkins v. Roberson, 103 Ga. 558 (29 S. E. 755); Price v. Bell, 88 Ga. 740 (5), 743 (15 S. E. 810).

Judgment affirmed.

Broyles, P. J., and Earwell, J., concur.


text:
    9219.
    Jenkins v. The State.
   Harwell, J.

1. “This court will not interfere with the discretion of the trial judge in refusing to grant a new trial on the ground of newly discovered testimony, where the motion on this ground contains no affidavit accrediting the character of the persons relied upon to give the alleged newly discovered testimony.” Polite v. State, 78 Ga. 347; Williams v. State, 9 Ga. App. 818 (72 S. E. 301). A part of the alleged newly discovered evidence in the instant case was impeaching in its nature; and the remaining portion of it, which was of no probative value whatever, must have been 'know to the defendant at the time of trial.

Decided December 19, 1917.

Accusation of misdemeanor; from city court of Greenville— Judge Eevill. September 5, 1917.

McLaughlin & Jones, N. F. Culpepper, for plaintiff in error.

J. F. Hatchett, solicitor, contra.

2. The evidence was sufficient to sustain the verdict, and no' error of law appears.

Judgment affirmed.

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


author: Broyles, P. J.

text:
    9222.
    Ellis v. The State.
    Decided December 19, 1917.
    Conviction of manslaughter; from Grády superior court— Judge Harrell. September 12, 1917.

      S. P. Cain, for plaintiff in error. R. "C. Bell, solicitor-general, F. A. Hooper, Ledford & Christopher,"contra. '
   Broyles, P. J.

Under the evidence in this case it was proper for the court to give sections 70, 73, and 71 of the Penal Code in charge to the jury; but it was error to give them in immediate connection with each other, without appropriate instructions as to when the provisions of section 73 were applicable, so as to prevent confusion in their minds as to the provisions of section -73 and those of sections 70 and 71. Jordan v. State, 117 Ga. 405 (43 S. E. 747); Ball v. State, 133 Ga. 177 (65 S. E. 400); Franklin v. State, 146 Ga. 40 (90 S. E. 480); Waters v. State, 146 Ga. 102 (90 S. E. 712); Dunn v. State, 16 Ga. App. 9 (84 S. E. 488); Darly v. State, 16 Ga. App. 171 (84 S. E. 724).

Judgment reversed.

Bloodworth and Bar well, JJ., concur.


text:
    9223.
    Ford v. The State.
   Bloodworth, J.

1. By the act of 1911 (Ga. L. 1911, p. 149, Park’s Penal Code, § 1101 (a)) it is provided that "no judgment of a trial court in a criminal ease shall be reversed by either the Supreme Court or the Court of Appeals for lack of proof of venue or of the time of the commission of the offense, save where the particular point has been specifically raised by a ground of the original or amended motion for a new trial.” The indictment alleges that the crime was committed on the 30fcli day of June, 1917. The evidence is: “The date of this is about June 30th.” It is urged in the brief of the plaintiff in error that “the evidence in this case does not show that the alleged offense was com- . mitted within the statute of limitations;” but this particular point was not specifically raised in the motion for a new trial, as required by the . statute quoted above, and therefore affords no reason for the grant of a new trial. Wall V. State, 10 Ga. App. 136 (82 S. E. 934); Marsh-man V. State, 138 Ga. 864 (2) (76 S. E. 572).

Decided December 19, 1917.

Conviction of misdemeanor; from city court of Savannah— Judge Rourke. September 29, 1917.

Shelby Myricl\, for plaintiff in error.

Walter G. Hartridge, solicitor-general, contra.

2. A jury trial was not demanded, and there was sufficient evidence to authorize the judge of the city court, trying the case, to find that the offense charged was committed by the defendant.

Judgment affirmed.

Broyles, P. J., and Harwell, J., concur.


text:
      9225.

    Kerney v. The State.
    Decided December 19, 1917.
    Accusation of misdemeanor; from city court of Eastman— Judge Griffin. September 11, 1917.

      C. W. Atwill, for plaintiff in error.

      D. D. Smith, solicitor, contra.
   Harwell, J.

1. A ground of- a motion for new trial complaining that “the court erred in admitting” a certain question, but not setting out the answer given by the witness, presents no question for determination by this court. Griffin v. Henderson, 117 Ga. 382 (2) (43 S. E. 712); McAllister v. State, 7 Ga. App. 541 (4) (67 S. E. 221).

2. The court did not err in admitting in evidence a certain envelope the defendant had given to the witness, bearing the address of the concern from which the whisky was'shown to have been ordered by the defendant in the witness’s name.

3. Neither did the court err in admitting in evidence a piece of pasteboard, torn from a carton found in the defendant’s residence by a witness, bearing the name of the person in whose name the defendant was-charged with having ordered the whisky.

4. It is not reversible error for the court, in the absence of request, to fail to charge the jury on impeachment of witnesses.

5. The evidence amply supported the verdict, and no error of law was committed. The trial judge did not err in overruling the motion for new trial.

Judgment affirmed.

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


text:
    9226.
    McRae v. The State.
    Decided December 19, 1917.
    Accusation of misdemeanor; from.city court of Eastman — Judge Griffin. September, 11, 1917.

      O. W. Atwill, for plaintiff in error.

      D. D. Smith, solicitor, contra.
   Broyles, P. J.

The verdict was authorized by the evidence; and the various special grounds of the motion for a new trial are without merit.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9227.
    Elzie v. The State.
    Decided December 19, 1917.
    Conviction of misdemeanor; from Forsyth, superior court— Judge Morris. September 21, 1917.

      H. B. Moss, for plaintiff in error.

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

1. In tiie brief of -the plaintiff in error it is conceded that the judge properly overruled the demurrer to the indictment; and this eliminates from the cáse all questions raised by the demurrer.

2. “Objection that a sentence imposed in a criminal case is for any reason illegal or irregular can not be made the ground of a motion for a new trial.” Martin v. City of Borne, 15 Ga. App. 496 (83 S. E. 872); Hill v. State, 122 Ga. 166 (2) (50 S. E. 57); Sturkey v. State, 116 Ga. 526 (42 S. E. 747); Bellinger v. State, 116 Ga. 545 (2) (42 S. E. 747); Burgamy v. State, 114 Ga. 852 (2) (40 S. E. 991).

3. “The action of a trial judge in a criminal case, after a verdict of guilty is returned, in hearing further evidence in order to determine the character of punishment to be imposed, can never be made the subject-matter of review in the Court of Appeals.” Gaskins v. State, 12 Ga. App. 97 (7) (76 S. E. 777); Cason v. State, 16 Ga. App. 820 (7) (86 S. E. 644).

4. The indictment charges that the defendant “did unlawfully have in his possession forty gallons of intoxicating liquor, corn liquor.” There was evidence that he had in his possession “thirty gallons of corn liquor, intoxicating liquor.” The jury returned a verdict of guilty, which was approved by the presiding judge and must stand.

5. As the sentence in this case is somewhat indefinite, the court is directed to remodel its judgment so that the term of service will in no event exceed twelve months.

Judgment affirmed, with direction.

Broyles, P. J., and Harwell, J., concur.


text:
    9235.
    DUNBAR v. THE STATE.
    The act of transporting whisky subsequently to the act of 1917' (Acts 1917, Ex. Sess. p. 8, see. 1) is in itself a violation of the prohibition laws of this State. Accordingly, when on an accusation charging the defendant with a violation of such law in several different ways the verdict finds him “guilty of .transporting whisky,” the verdict is not a special verdict stopping short of the facts requisite to a conviction, but is a finding that the defendant violated the prohibition law by transporting whisky.
    Decided December 19, 1917.
    Accusation of misdemeanor; from city court of Richmond county — Judge Black. September 26, 1917.

      C. H. & R. S. Cohen> Archibald BlacJcshear, for plaintiff in error. W. Inman Curry, solicitor, contra.
   Harwell, J.

The defendant was tried on an accusation charging him with “a misdemeanor, to wit, violation prohibition law, for that the said defendant, in the county aforesaid, on the 13th day of September, 1917, . . did unlawfully transport^ ship, and carry, and caused to be transported, shipped, and carried from a point without this State to a point within this State, and from place to place in this State, spirituous, vinous, malted, fermented, and intoxicating liquors; and did have, receive, control, and possess, in this State, spirituous, vinous, malted, and fermented liquors.” The jury returned a verdict as follows: “We, the jury, find the defendant guilty of transporting whisky.” The defendant made a motion in arrest of judgment, upon numerous grounds, the substance of them all being that “the verdict returned by the jury does not find the defendant guilty of any crime or offense upon .which judgment or sentence can be pronounced.” The trial judge-overruled this motion and pronounced sentence, to which judgment the -defendant excepted.

The sole question for determination is whether the verdict so . returned is equivalent to a general verdict of guilty of transporting liquor, in violation of the act of 1917 (Ex. Ses., p. 8, sec. 1), as alleged in the accusation, or whether it is a special verdict, merely finding the fact that the defendant had “transported whisky,” without finding that he had committed any offense. A special verdict is rendered when the jury find certain facts to exist, and leave the court to determine whether or not, according to the law which controls these facts, the prisoner is guilty. McGuffie v. State, 17 Ga. 497 (9); Isom v. State, 83 Ga. 378 (9 S. E. 1051). And where the verdict applies directly to the offense expressly ^ charged, but stops short in its finding of the requisite facts to constitute that offense, the verdict is equivalent to an acquittal. Couch v. State, 28 Ga. 367; O’Connell v. State, 55 Ga. 191; Lambert v. State, 17 Ga. App. 348 (86 S. E. 782); Wells v. Slate, 116 Ga. 87 (42 S. E. 390). However, we do not think that this case comes within the rulings, or the reason of the rulings, in the eases cited. If “transporting whisky” was only one of several elements of the offense charged in this accusation, and was the only element which the jury found had been established to their satisfaction, then clearly the verdict would amount to an acquittal. But in this State, since the act of 1917, supra, any transportation of whisky is unlawful, and when one is found to have transported whisky he is guilty of. the offense charged in this accusation, viz., a violation of the prohibition law. It is well established that where a misdemeanor may be committed in a number of different ways, all of which are alleged in one count of the accusation, .proof of its commission in any one way is sufficient. Cody v. State, 118 Ga. 784 (45 S. E. 622), and citations. If the jury found that the defendant only transported whisky and did not find that he violated the prohibition law in the other respects named, it was sufficient. “Verdicts are to have a reasonable intendment, and are to receive a reasonable construction, and are not to be avoided unless from necessity.” Penal Code (1910), § 1059. And in the construction of verdicts the accusation must be considered. Cook v. Stale, 26 Ga: 593; Arnold v. State, 51 Ga. 144; Isom v. State, supra. Construing this accusation with the verdict of the jury, we think that the verdict both in its language and in its “intendment” is a . finding that the defendant violated the prohibition law by unlawfully transporting whisky. Compare also Welch v. State, 50 Ga. 128 (15 Am. R. 690); Mosley v. State, 11 Ga. App. 1 (74 S. E. 569); Kidd v. State, 10 Ga. App. 148 (75 S. E. 266). Therefore the trial judge did not err in overruling the motion in arrest of judgment, and in pronouncing sentence upo'n the defendant.

Judgment affirmed.-

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


text:
    9236.
    Jones v. The State.
    Decided December 19, 1917.
    Accusation of larceny; from city court of Richmond county— Judge Black. September 35, 1917.

      J. W. Burch Jr., B. E. Pierce, for plaintiff in error.

      W. Inman Curry, solicitor, contra.
   Broyles, P. J.

The verdict in this case, while based upon evidence which to this court appears rather weak and unsatisfactory, has been approved by the trial judge, whose opportunities of hearing the witnesses and observing their demeanor while, upon, the stand have qualified him no doubt to be a better judge than the members of this court as to the weight of the evidence. Ho error of law is complained of; • and the judgment of the court overruling the motion for a new trial is

Affirmed,

Bloochoorth, J., concursj Harwell, J., concurs dubitante.


author: Bloodwortii, J.

text:
    9237.
    Waldermar v. The State.
   Bloodwortii, J.

The defendant was tried for a violation of what is known as the “bone-dry” law, under an accusation which charged that he did “unlawfully transport, ship, and carry and cause to be transported, shipped, and carried from a point without this State to a point within this State, and from place to place in this State, spirituous, vinous; malted, fermented, and intoxicating liquors; and did have, receive, control, and possess, in this State, spirituous, vinous, malted, and fermented liquors.” The evidence shows that there was found at his store a beer bottle about half full of whisky; and at his residence four full quarts of whisky, five bottles and a gallon jug all partly filled with whisky. He admitted having the whisky in his possession, but sought to excuse himself from criminal liability therefor by claiming that he was ill and that his physician 'had prescribed the whisky for him.

1. The special ground of the motion for new trial is ás follows: “The court erred in stating in the presence of the jury, when defendant offered Dr. George H. Lehman, a practicing physician, to prove that as the physician of the defendant he had prescribed a certain amount of whisky for him, deeming' it absolutely essential to the preservation of his life, that ‘such would not be a defense to the present accusation.’” Under the facts of this case the judge did not err in making the above assertion, which was a correct statement of the law. However, if the defendant seeks to take advantage of such alleged error on the part of the judge during the progress of the case, he should do so by a motion to declare a mistrial. Stapleton v. State, 19 Ga. App. 36-38 (13) (90 S. E. 1029), and cases cited; Wilcox v. State, 19 Ga. App. 83 (4) (90 S. E. 1032); Perdue v. State, 135 Ga. 277 (69 S. E. 184).

Decided December 14, 1917.

Accusation of misdemeanor; from city court of Richmond county —Judge Black. September 26, 1917.

O. A. Picquet, for plaintiff in error.

W. Inman Curry, solicitor, contra.

2. The jury rendered the only verdict legally possible under the facts, and the motion for a new trial was properly refused.


text:
    9246.
    Bennett v. The State.
    Decided December 19, 1917.
    Indictment for misdemeanor; from Cobb superior court— Judge Morris. September 21, 1917.
    J. Z. Foster, G. D. Anderson, for plaintiff in error.

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

Evidence that the defendant approached the prosecutor at night on the streets, asked him if certain people were coming that way, put one hand on prosecutor’s shoulder, and, putting his other hand down at prosecutor’s breeches and over his private parts,- said “Let’s go down in the alley yonder,” and ran when the prosecutor’s friends approached, is not sufficient to sustain a charge of “then and there” making an assault with intent to commit sodomy upon the person of the prosecutor. Tiller v. State, 101 Ga. 782 (29 S. E. 424).

Judgment reversed.

Broyles, P. J., and Bloodicorth, J., concur.


text:
    9247.
    Banks v. The State.
    Decided December 19, 1917.
    Accusation of gaming; from city court of Thomasville— Judge W. H. Hammond. October 4, 1917.

      C. F. Hay, E. L. Joiner, for plaintiff in error.

      H. J. MacIntyre, solicitor, contra.
   Broyles, P. J.

The verdict of guilty was amply authorized by the evidence, and the grounds of the amendment to the motion for a new trial-are without substantial merit. The judgment of the court refusing to grant a new trial is

Affirmed,

Bloodworth and Harwell, JJ., concur.


text:
    9249.
    Parks v. The State.
    Decided December 19, 1917.
    Accusation of misdemeanor; from city court of Hall county— Judge Wheeler. September 26, 1917.

      ■Sloan & Sloan, B. P. Gaillard Jr., for plaintiff in error.

      Hammond Johnson, solicitor, contra.
   Harwell, J.

. 1. “Tlie Court of Appeals is without jurisdiction to consider the grounds of a motion to dismiss a bill of exceptions in a criminal ease which is predicated upon alleged errors of the trial judge antecedent to his final decision upon a motion for new trial.” Bryan v. State, 3 Ga. App. 26 (59 S. E. 185). Accordingly, the motion to dismiss the bill of exceptions in this case, predicated upon the ground that the trial judge erred in allowing the brief of evidence, to be filed in the lower court over the objection of the solicitor that such brief had not been served upon him as required by the order setting the motion for new. trial down for a hearing, is without merit.

2. “Where a motion is made to continue a criminal ease upon the ground that the accused is physically unable tp go to trial, and upon such question the testimony of medical experts introduced as witnesses ,is conflicting, the discretion of the trial judge in overruling, the. motion will not be controlled.” McDaniel v. State, 103 Ga. 268 (30 S. E. 29); Oglesby v. State, 121 Ga. 602 (49 S. E. 706); Rawlins v. State, 124 Ga. 33 (18) (52 S. E. 1). The two physicians appointed by the court in this case to examine the defendant having testified that he was able to appear at the trial, the trial judge did not, in refusing the motion for a continuance, abuse the discretion vested in him by § 992 of the Penal Code. . .

3. The testimony of several witnesses to the effect that when they made a raid on the defendant's place of business they found him in the rear of his store breaking up bottles of corn whisky, authorized the verdict of guilty of having liquor in his possession; and the trial judge did not err in overruling the motion for new trial.

Judgment affirmed.

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


text:
    9269.
    Hudson v. The State.
   Broyles, P. J.

Where a writ of certiorari to review errors alleged to have been committed in a criminal ease in a city court has been sanctioned, the solicitor-general of the circuit in which the city having such court is located must be given timely notice of the sanction of the writ and of the time and place of hearing. The burden is upon the petitioner to show that such notice has been given; and unless this burden is carried the certiorari should be dismissed. Moore v. State, 96 Ga. 309 (22 S. E. 960); McElhannon v. State, 112 Ga. 221 (37 S. E. 402); Culbreth v. State, 115 Ga. 242 (41 S. E. 594); Johnson v. State, 2 Ga. App. 181 (58 S. E. 415). It follows from this ruling that no error was committed in dismissing the certiorari in the instant case.

Decided December 19, 1917.

Certiorari; from Grady superior court — Judge Harrell. September 13, 1917.

L. W. Rigsby, for plaintiff in error.

R. C. Bell, solicitor-general, Ira Carlisle, solicitor, F. A. Hooper, contra.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9270.
    Hudson v. The State.
    Decided December 19, 1917.
    Certiorari; from Grady superior court — Judge Harrell. September 13, 1917.

      L. W. Rigsby,' for plaintiff in error.

      R. C. Bell, solicitor-general, Ira Carlisle, solicitor, F. A. Hooper, contra.
   Bloodworth, J.

1. The writ of certiorari was issued August 1, and was properly made returnable to the term of court which convened in September next thereafter. Civil Code (1910), § 5188.

2. The solicitor-general of the circuit not having been served with notice of the . sanction of the certiorari, and not having acknowledged service thereof, the certiorari was properly dismissed. “Failure to serve the solicitor-general with a notice of the sanction of the petition for certiorari in a criminal case within the time prescribed by law, except in case of ‘unavoidable cause’ preventing such service, is ground for dismissal.” Johnson v. State, 2 Ga. App. 181 (58 S. E. 415); Culbreth v. State, 115 Ga. 242 (41 S. E. 594). See also Mahaffey v. State, 15 Ga. App. 483 (83 S. E. 795), and cases cited.

Judgment affirmed.

Broyles, P. J., and Harwell, J., concur.


author: .Harwell, J.

text:
    9279.
    COTTON v. THE STATE.
    There is sufficient evidence to support the verdict of guilty, and the' trial judge did not err in overruling the motion for a new trial, based upon the general grounds only.
    Decided December 19, 1917.
    Indictment for larceny of bog; from Troup superior court— Judge Terrell. September 29, 1917. ' ,

      Henry Beeves, for plaintiff in error.-

      O. E. Boop, solicitor-general, contra.
   .Harwell, J.

The prosecutor missed from his premises a hog some time in November, 1916, and found it, in the latter part of December, at the home of Cephas Johnson, about three miles distant. Otis Cotton, the defendant, was living with the prosecutor when the hog was missed. He searched for it for the prosecutor for several days, but said that he could not find it. Before his arrest he went to the prosecutor and asked what he would take to compromise the case, and offered for that purpose $35, which was declined. The evidence further shows that on one night in November, at about twelve o’clock, the defendant carried this hog in his buggy to the home of Johnson, telling Johnson that he had more hogs than he could feed, and leaving the hog with him to be raised on halves. The prosecutor found the hog at Johnson’s home and identified it. Two witnesses for the defendant testified that in the first week in December they saw the defendant in his buggy, near Cephas Johnson’s residence, at night, about nine o’clock, and that he did not have any pig in the buggy. The defendant made a statement denying that he stole the hog or that he carried it to Cephas Johnson’s house.

The headnote does not require elaboration.

Judgment affirmed.

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


text:
    9287.
    Burrage v. The State.
   Bloodwobth, J.

1. The indictment in this case charges the defendant with manufacturing alcoholic liquors. The special ground of the motion for-new trial is based upon the alleged newly discovered evidence of one Marshall Turner, who makes affidavit that he and another, and not the defendant, owned and operated the still, and that it was he and not the defendant who ran'away from the still when it was captured. Where more'than two years have elapsed after a misdemeanor has been committed, the confessions of a person who is neither indicted for nor accused of the crime, that he, and not the defendant who has been ■ . convicted, is the guilty one, will not authorize the granting of a new trial. Indeed it has'been repeatedly held that even where two persons are jointly indicted, and one of them acknowledged that he alone is guilty, the evidence is inadmissible on the trial of the other defendant. Robison v. State, 114 Ga. 445 (2) 447 (40 S. E. 253), and cases there cited. The reason for the rule is thus stated in the decision just referred to: “All one defendant would have to do would he to admit that his guilty accomplice was innocent, and that he himself had perpetrated the crime, absent himself so as to enable the party on his trial to have the benefit of his admission, and, after his acquittal, appear, demand his trial, and prove by the evidence of the acquitted party that he was in fact the guilty person.” In addition to the above, this evidence is cumulative and impeaching in its character. Besides this ground of the motion need not be considered by this court, because it fails to comply with all the requirements of §' 6086 of the Civil Code of 1910; Penal Code, § 1088.

Decided December 19, 1917.

Indictment for misdemeanor; from Haralson superior court— Judge Bartlett. September 29, 1917.

I. N. Cheney, for plaintiff in error.

J. B. Hutcheson, solicitor-general, contra.

.2. The jury believed the evidence for the State, the trial judge refused to set aside their finding, and this court will not interfere.

Judgment affirmed.

Broyles, P. J., and Harwell, J., ooneur.


text:
    9304.
    Rutledge v. The State.
    Decided December 19, 1917.
    Certiorari; from Fulton superior cotirt — Judge Bell. October 2, 1917.

      Paul L. Lindsay, for plaintiff in error.

      John A. Boykin, solicitor-general, Lowry Arnold, solicitor, E. A. Stephens, contra.
   Broyles, P. J.

Under the facts of the ease, as disclosed by the record, the court did not err in overruling and dismissing the certiorari.

Judgment affirmed.

Bloodworth and Harwell, J.J., concur.


text:
    9315.
    Dyer v. The State.
    Decided December 19, 1917.
    Indictment for larceny; from Hall superior court — Judge J. B. Jones. October 13, 1917.

      B. P. Gaillard Jr., for plaintiff in error.

      Bobert McMillan, solicitor-general, contra.
   Broyles, P. J.

The verdict was not authorized by the evidence, and the court erred in overruling the- motion for a new trial.

Judgment reversed.

Bloodworth and Harwell, JJ., concur.


author: •Broyles, P. J.

text:
    9329.
    Skipper v. The State.
    Decided December 19, 1917.
    Accusation of misdemeanor; from city court of Griffin — Judge Goodrich. October 6, 1917.

      W. U. Connor, foi plaintiff in error.

      J. A. Darsey, solicitor pro tern., contra.
   •Broyles, P. J.

The verdict was authorized by the evidence; no error of law is complained of; and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9340.
    Bradham v. The State.
    Decided December 19, 1917.
    Accusation of misdemeanor; from - city court of Brunswick— Judge Krauss. September 29, 1917.

      Smith, Tillman & Smith, A. J. Crovatt, for plaintiff in error.

      A. D. Gale, solicitor, contra.
   Bloodworth, J.

“In this ease the motion for a new trial contained only the usual general grounds. There was some slight evidence authorizing the verdict; and the verdict having been approved by the trial judge, under the repeated and uniform rulings of this court and of the Supreme Court a reviewing court is powerless to interfere. When the verdict is apparently decidedly against the weight of the evidence, the' trial judge has a wide discretion as to granting or refusing a new trial; but whenever there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Toole v. Jones, 19 Ga. App. 24 (90 S. E. 732); Cook v. McMurria, 19 Ga. App. 491 (91 S. E. 785); McCarty v. Keys, 19 Ga. App. 494 (91 S. E. 875) ; Phillips-Boyd Publishing Co. v. Bird, 19 Ga. App. 808 (92 S. E. 287).

Judgment affirmed.

Broyles, P. J., and Harwell, J., concur.


text:
    9348.
    Brooks v. The State.
    Decided December 19, 1917.
   Broyles, P. J.

The motion for a new trial contains only the usual gen- , eral grounds. The verdict was authorized^ by the evidence, and the court committed no error in refusing to grant a new trial.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.

Conviction of misdemeanor; from city court of Savannah— Judge Rourke. September 29, 1917.

Robert L. Golding, for plaintiff in error.

Walter 0. Hartridge, solicitor-general, contra.


text:
    9349.
    Jacobson v. The State.
    Decided December 19, 1917.
    Description and counsel as in Broolcs v. State, ante, 510.
   Bloodworth, J.

A trial by jury was waived, and the case was tried by the judge of the city court. Under the evidence his finding that the accused was guilty was authorized, and the judgment is

Affirmed.

Broyles, P. J., and Harwell, J.,. concur.


text:
    9351.
    Raskin v. The State.
    Decided December 19, 1917.
    Description and counsel as in Broolcs v. State, ante, 510.
   Broyles, P. J.

No error of law is complained of. The evidence fulfy authorized the finding of the trial judge, exercising by consent the function's of both judge and jury. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


author: Luke, J.

text:
    8594, 8595.
    Smith et al. v. Loudermilk; and vice versa.

    Decided November 16, 1917.
    Rehearing denied January 31, 1918.
    Certiorari; from Hall superior court — Judge J., B. Jones. February 5, 1917.
    . Howard Thompson, W. M. Johnson, B. D. Kenyon, for plaintiffs.

      A. 0. Wheeler, Pearce R. Matthews, for defendants.
   Luke, J.

The evidence authorized the judgment of the ordinary, directing the removal of obstructions from a private way; and upon certiorari and the answer thereto as agreed between the parties, it was error for the judge of the superior court to sustain.', the certiorari and direct a new trial upon any of the grounds urged in the petition therefor.

Judgment on main hill of exceptions reversed, and on cross-hill affirmed.

Wade, O. J., and Jenkins, J., concur.


author: Jenkins, J. Jenkins, J.

text:
    8659.
    TINSLEY v. GULLETT GIN COMPANY.
    1. Where exception is taken to a preliminary judgment sustaining a demurrer to the defendant’s answer, it must not only appear from the bill of exceptions that a final judgment has been rendered in the case, but it is also required that error be assigned thereon. However, when a specific assignment of error is made upon such previous ruling, and exception is also taken to the final judgment, not for the reason that the latter is erroneous within itself, but merely for the purpose of reaching the error specifically complained of in the antecedent ruling, then a general exception to the final judgment will be deemed sufficient.
    2. Where one who can read signs a contract without apprising himself ' of its contents, otherwise than by accepting representations made by . the opposite party, with whom there exists no fiduciary or confidential relation, he can not defend an action based on it, on the ground that it does not contain the contract actually made; unless it should appear that at the time he signed it some such emergency existed as would excuse his failure to read it, or that his failure to read it was brought about by some misleading artifice or device perpetrated by the opposite party, amounting to actual fraud such as would reasonably prevent him from reading it.
    3. “Where in a sale of machinery there is an express warranty as to quality, and by the terms of the warranty liability of the seller, is pre- , dicated upon conditions which must be performed by the buyer before . liability upon the part of the'seller is to attach, such as that the buyer is to take the property on trial for a specified time, and, upon its failure to fulfill the warranty, give written notice at onc.e to the seller at a designated place, and also to the agent of the seller through whom tiie property was received, stating in what parts and wherein the property’fails to fulfill the warranty, the seller will not be held liable on the warranty unless the buyer complies with such conditions.”
    4. Where the answer sets up that the' defects complained of were latent and concealed, and were of such a character that their existence could not be ascertained within the period allowed by the contract for notice ■ thereof to the seller, but that the seller, knowing of such defects and that they could not be discovered within such time, fraudulently concealed them from the defendánt, the answer would not be subject to demurrer on the ground that notice within the time provided for had not been given.
    Decided December 12, 1917.
    Rehearing denied January 21, 1918.
    Complaint; from Calhoun, superior court — Judge Cox. December 4, 1916. ’ •

      O. J. Taylor, A. L. Miller, for plaintiff in error.

      Pottle & Hofmayer, Peacock & Gardner, contra.
   Jenkins, J.

1. The second and third paragraphs of the bill of exceptions in this case, are as follows: On said day, after hearing argument on said demurrer, said court then and there suStained said demurrer and dismissed said answer and plea of defendant, and passed an order and judgment to that effect, and directed a verdict against defendant.” “To which action, judgment, order of the court, and direction of a verdict, the defendant in said case then and there excepted, and now excepts, and assigns the same as error.” A motion is made to dismiss the writ of error, upon the following grounds: “(1) Because there is no sufficient assignment of error in the bill of exceptions to authorize this court to entertain jurisdiction of the writ of error. (2) Because there is no proper exception to any final judgment. (3) Because the bill of exceptions does not Specify plainly the decision complained of and the alleged error/ as is required by the Civil Code, § 6139. (4) Because the only attempt in the bill of exceptions to make a valid exception consists of one single assignment of error upon two separate and distinct judgments, without specifying any reason why either judgment is erroneous.” In the ease of Johnson v. Battle, 120 Ga. 649 (48 S. E. 128), Mr. Justice Lamar, speaking for the Supreme Court, said: “Unless there has been a final termination of the case in the court below, a writ of error will not lie to an order striking a plea, even though the effect of such order may be to entitle the plaintiff to a judgment or verdict as matter of course.” But it has been also held, that even where the bill of exceptions recites that, following such a controlling ruling, final judgment has in fact been rendered, there must nevertheless be an assignment of error upon such final judgment, in order that exception may be taken to the antecedent ruling, although the error in the final judgment does not arise within itself, but arises solely by reason of the error committed in the antecedent 'ruling. McCranie v. Shipp, 10 Ga. App. 544 (73 S. E. 701); Lyndon v. Georgia Ry. & El. Co., 129 Ga. 353 (3) (58 S. E. 1047). A writ of error, however, is not premature, nor is the reviewing court without jurisdiction, where the ruling complained of would have given final disposition to the case had judgment been rendered as contended for by the excepting party. Berryman v. Haden, 112 Ga. 752 (38 S. E. 53). The third headnote in the case of Lyndon v. Georgia Ry. & El. Co., supra, is as follows: “If the ruling or decision complained of as erroneous is one preceding the final judgment, and if it is specifically made the subject of exception and of proper assignment of error, and the final judgment is excepted to, not because of additional error in it, but’because of tbe antecedent ruling complained of, which entered into and affected the further progress or final result of the case, a general exception to the final judgment and an exception to and a specific assignment of error on the antecedent ruling will suffice, relatively to the point now under consideration, to give the reviewing court jurisdiction.” Thus the rule appears to be that when exception is taken to a final judgment for the reason that it is erroneous within itself, the error in such judgment so complained of must be specifically pointed out; yet where such final judgment is excepted to merely for the purpose of reaching the controlling error involved in an antecedent ruling, then a general exception only to the final judgment will be deemed sufficient. The questions therefore are: (1) Was there a general assignment of error as to the final judgment? (2) Was there a specific assignment of error as to the antecedent ruling sustaining the demurrer? In the ease of McKenzie v. Consolidated Lumber Co., 142 Ga. 375 (82 S. E. 1062), the assignment of error was as follows: “To this judgment of the court, directing the jury to return a verdict against the defendants, the defendants then and there excepted, and now except and assign error upon the same, and say the court should 'have overruled the motion to direct a verdict, and erred in refusing so to do.” TJpon this assignment the court said: “There.was no assignment of error upon any judgment entered upon the verdict; but the direction of the verdict was in effect a judgment by the court, and is to be treated as a final judgment upon which error may be assigned in a direct bill of exceptions, and as sufficient, when error is assigned upon it, to bring under review a proper assignment of error upon a judgment or ruling as to the admissibility of evidence made during the trial.” Thus, under the above authority, the exception taken to the “direction of a verdict” is equivalent to an assignment of error upon the final judgment itself.. Nor do we agree with the other contention of the movant, that the exception is insufficient because it is taken, in a single assignment of error, both to the final judgment and to the order sustaining the demurrer. While the ruling in the ease of American Investment Company v. Cable Company, 4 Ga. App. 106 (60 S. E. 1037), was made where both the rulings excepted to in a single assignment of error were the subject-matter of a single judgment by • the trial judge, and while in that case this court said that “If the rulings of the judge of the superior court which are complained of had been separate, it would perhaps have been better to have made two assignments,” still we think the spirit and intent of the, law, as embraced by section 6183 of the Civil Code (1910), would not permit a dismissal of the writ for this reason. The code section referred to is mandatory, and provides as follows: “It shall be unlawful for the Supreme Court of Georgia to dismiss any case for any want of technical conformity to the statutes or rules - regulating the practice in carrying cases to that court, where there is enough in the bill of exceptions or transcript of the record presented, or both together, to enable the court to ascertain substantially the real questions in the case which the parties seek to have decided therein.” As to the other proposition, does the exception taken to the action of .the trial judge in sustaining plaintiff’s demurrer and dismissing defendant’s plea comply with the requirements óf the Civil Code (1910), § 6139, by plainly specifying the decision complained of and the alleged error committed? While it does not within itself point out what the plea alleged and on what ground the demurrer attacked it, yet the. bill of exceptions recites that the judge sustained said demurrer and dismissed the plea, which action and judgment is assigned as error; and the bill of exceptions specifies-' the plea, the demurrer, and the judgment sustaining the demurrer,as material parts of the record. In McGregor v. Third National Bank, 124 Ga. 557 (53 S. E. 93), it was held: “A bill of exceptions which recites that the trial judge overruled a demurrer to' the plaintiff’s petition, and that exception is taken to such ruling and such ruling is assigned as error, presents a legally sufficient assignment of error, when the demurrer is specified as a material part of the record and discloses what objections were urged against the petition.” In Johnson Y. Porter, 115 Ga. 401, 403 (41 S. E-. 644), it was stated; “When the case was called in this court a motion was made to dismiss the writ of error, first, because the bill of exceptions does not contain any sufficient specification of error.

. . The bill of exceptions, after reciting the fact that the court passed an order sustaining the demurrer and striking Mrs. Annie Porter as a defendant in the case, declares.: ‘To which ruling this plaintiff, Annie Johnson, excepted, excepts, assigned and now assigns the same as error/ Under a number of decisions of this court it must be ruled that this is a sufficient assignment of error,” citing Frierson v. Alexander, 74 Ga. 666; Melson v. Thornton, 113 Ga. 99 (38 S. E. 342). In the latter case it is stated: “The plaintiff in his' bill of exceptions recites that ‘The defendants to said action filed a demurrer/ etc., and ‘that the court passed an order sustaining the same/ and assigns ‘error upon the judgment sustaining said demurrer and passing said order/ In specifying the portions of the record to be transmitted to this court, ‘the demurrers filed in said case by the defendants A. J. Little and Elberton Oil Mill’ are mentioned.” From the authorities quoted from or cited, and numerous others which could be mentioned, we think it is clear that a specific assignment of error upon the order of court sustaining plaintiff’s demurrer and dismissing defendant’s plea has been made, which conclusion, when taken together with the ruling already made as to' there being a valid general assignment on the final judgment, necessitates the overruling of the motion to dismiss.

2. The rule stated in the second headnote is supported by abundant authority. See Walton Guano Co. v. Copelan, 112 Ga. 319 (37 S. E. 411, 52 L. R. A. 268); Georgia Medicine Co. v. Hyman, 117 Ga. 851 (45 S. E. 238); Harrison v. Wilson Lumber Co., 119 Ga. 6 (45 S. E. 730); Stoddard Manufacturing Co. v. Adams, 122 Ga. 802 (50 S. E. 915); Biggers v. Equitable Manufacturing Co., 124 Ga. 1045 (53 S. E. 674); Rounsaville v. Leonard Manufacturing Co., 127 Ga. 735 (56 S. E. 1030); Towns v. West, 16 Ga. App. 300 (85 S. E. 274); Sloan v. Farmers & Merchants Bank, 20 Ga. App. 123 (92 S. E. 893). In McBride v. Macon Telegraph Co., 102 Ga. 422, a defendant was allowed to set up a defense to a written contract signed by him, on the theory that the instrument did not embrace the true terms of the agreement, because of the actual fraud perpetrated by the plaintiff’s agent, in that at the time the contract was hastily signed the agent “pretended to read the instrument so that it comprised the agreement that had been made between the agent and the manager of defendant company/’ the latter “accepting the agent’s reading thereof as the correct reading of said contract.” In the instant case none of the pleas undertake to show that the agent of plaintiff purported to read the instrument at all, other than that (quoting from brief of counsel for defendant) “he read from- said order the description of the machinery, the price and terms thereof, and also read the words, to wit, ‘When this order is accepted by you [Gullett Gin Company] it is understood that the same shall be and be held to be an entire contract between us; and no agreement, verbal or otherwise, other than is set forth herein, forms any part of the contract/ ” It is true that it is in substance alleged (again quoting from the brief) “that the said agent wilfully deceived the plaintiff in error as to what was written on the back of said contract, by stating, when he gave a description of the machinery, the notes that were to be given, the time when the machinery was to be shipped, and the purchase-price thereof, that these were all the statements made in said order, and being read therefrom apparently, that plaintiff in error and defendant in error would be bound by no other contract.” And in one of the pleas it is alleged that the “agent represented that there was no agreement on the back of said contract, and no conditions in the face of same.” We can not think, however, that when one who is able to read is handed a written contract for his signature, with the statement that there is no agreement on the back thereof, when in fact an agreement there printed plainly appears with a caption in capital letters entitled “Warranty,” the signer can be protected, by reason of such an alleged statement, from his gross negligence in failing to read, or even to glance at, the contract he was about to sign. Nor do we think that the signer of the contract should be enabled to rely on the statement pleaded by him, to the effect that the agent represented that the portion of the contract alleged to have been read by him, relating purely to “a description of the machinery, the notes that were to be given, the time when the machinery was to be shipped, and the purchase-price thereof,” constituted “all of the statements made in said order,” when in fact the contract, which appears to have been mainly printed in its original form, embraces six typewritten pages of the record now before us. Even the most casual and indifferent notice of the instrument he was about to sign would have instantly and unmistakably disclosed that the contrary was true as to these averments set up by the pleas. As was stated by the Supreme Court in Bostwick v. Duncan, 60 Da. 383, 387, “It is not the duty or business of the courts to relieve parties from their gross negligence in making their contracts.” Nor do we think that the answer as amended shows the existence of such an emergency, at the time the contract was signed, • as would be sufficient to excuse the utter neglect which the defendant is shown by his- pleas to have been guilty of. The language of the amended pleas setting up the emergency relied on is as follows: “That said agent in this seductive manner induced defendant to sign said paper, telling him that he had to be in a hurry, that he had other points to make, and must go.” In another portion of the plea the circumstances existing at the time of the signing were thus described: “Said agent hurrying defendant and urging him to sign quickly, that he, the agent, had to catch a train, and representing that said paper was only an order for said machinery with no stipulations therein.” In view of the fact that the alleged statements of the agent, upon which defendant relies, were in themselves so manifestly and palpably at variance with the actual facts relating to the contract, the falsity of which would have been disclosed by even the merest and most casual glance at the instrument itself,- we do not think, had such an emergency existed as is set forth in the case of Wood v. Cincinnati Safe Co., 96 Ga. 120 (22 S. E. 909),-that even then the circumstances as to the signing would have excused the negligence of the signer. In the present case, however, no such immediate and urgent necessity for haste is shown as was outlined in the Wood case. In the mode and character of the alleged misrepresentations, the case at bar is distinguished from the McBride case.

3. The rule stated in the third headnote is regarded as a clear and concise statement of the law governing the element of the controversy growing out of the contract in this case, and is quoted from Brooks Lumber Co. v. Case Threshing Machine Co., 136 Ga. 754 (72 S. E. 40). In that case Mr. Justice Atkinson cites as authority the following cases: International Harvester Co. v. Dillon, 126 Ga. 672 (55 S. E. 1034); Beasley v. Huyett, 92 Ga. 273 (2), 278 (18 S. E. 420); McCormick Machine Co. v. Allison, 116 Ga. 445 (42 S. E. 778); Mayes v. McCormick Machine Co., 110 Ga. 545 (35 S. E. 714); Fay & Egan Co. v. Dudley, 129 Ga. 314 (2) (58 S. E. 826); Walker & Rogers v. Malsby Co., 134 Ga. 399 (67 S. E. 1039); Fahey v. Easterly Machine Co., 3 N. D. 220 (55 N. W. 580, 44 Am. St. R. 554).

é. This suit was upon, notes for the price of a ginning outfit sold by the plaintiff to the defendant under a contract, a copy of which was attached to the petition, and which contained provisions similar to those mentioned in headnote 3 of this decision. The defendant pleaded failure of consideration, because of alleged defects in the machinery; and in an amendment to the answer it was alleged that he was not bound by the contract because it was procured by fraud; that the defects in the machinery, as set out in the plea, although known to the plaintiff at the time the contract was signed, were latent and concealed, and were known to be of such a character as could not be ascertained within the ten days allowed by the contract, during which time notice of such defects could be reported to the seller, in default' of which report it would be conclusively presumed that the warranty had been fulfilled and acceptance of the machinery made; that, knowing this, the plaintiff, through its sale agent, fraudulently represented that there were no defects in the machinery, etc. The court, on demurrer, struck the plea as amended. In Beasley v. Huyett, supra, there was a similar defense, and Chief Justice Bleckley said: “The plea of partial failure of consideration, when amended and enlarged by the further plea of actual fraud on the part of the plaintiff by having knowledge of and fraudulently concealing the alleged defects, knowing that they were latent and could not be discovered within thirty days from the first use of the apparatus (and in fact they were not discovered until afterwards), would be a defense to the action, to the extent, at least; of the partial failure of consideration occasioned by the fraud. There can be no doubt that it is a fraud for manufacturers of machinery to fill it with latent defects not discoverable in thirty 'days, and then sell it as good but warranting the same only as against defects actually discovered within thirty days, they knowing that the existing defects are not discoverable within that time, and concealing both the defects and their knowledge of them. To do this would be practicing deceit and committing actual fraud. Those who commit actual fraud can not protect themselves against answering therefor by any form of warranty or any limitations which they may introduce in the terms of the warranty. Fraud in the principal contract, the contract of sale, is not to be answered by setting up a collateral contract which was as much the offspring of the fraud as was the principal contract itself. The special plea, as finally shaped by the plea of fraud, should not have been stricken; and in striking the same and in afterwards directing a verdict for the plaintiff the court erred.” For the reason stated in the fourth headnote of the present case, we are of the opinion that it was error to strike the plea of defendant as amended, and to direct a verdict in favor of plaintiff.

Judgment reversed.

Wade, G. J., and Lulce, J., concur.

ON MOTION'EOB REHEARING.

Jenkins, J.

Counsel for the defendant in error present a motion for rehearing, based upon the ground that the ruling stated in the fourth headnote of the decision in this ease does not take into account that the defendant, in his pleas, failed to describe the defects in the machinery complained of, but, on the contrary, pleaded merely results from the operation of the machinery, which may or may not have been caused by defects, and which may have resulted from unskilful operation; the contention being that, although the defendant was bound to plead the cause, he has merely pleaded the effect. The pleadings of the defendant are voluminous. The first amendment by which it was sought to set out in detail the defects complained of was as follows: “Defendant says that in spite of all his efforts, and those of plaintiff’s expert mechanics who were here three different times during the cotton season, and the advice of [its] said agent, Belleau, who was present at the gin at least once a month during the said ginning season, the trouble continued and increased in said machinery. The gin saws gave trouble in not cutting the lint clean from the seed, in cutting and knotting the fibers of the lint, and in the hack lashing of the cotton'upon the saws, which clogged the machinery and caused it to stop. Seed cotton collected and clogged in the belt passages leading through the elevator, pushing the belts from the pulleys, and collected and congested in the distributor, both of which troubles caused the machinery to he shut down until same could be relieved. The flue leading to the condenser became clogged with lint, dirt, and trash, which not only damaged the sample of cotton, but made it necessary to shut down machinery to' clean it out. The condenser became congested with cotton, and the machinery had to he stopped that same might he relieved. All of which troubles caused repeated stoppings of the entire gin system, and loss of time to entire gin crew. Defendant had to stop the machinery for some such trouble several times a day, so that defendant was able to run said gin only one full day during the entire gin season, and the lost time amounted in all to not less than fifty days in the whole gin season.” By a subsequent amendment the defendant alleged as follows: “That the said machinery would not do satisfactory work, in that the general construction of the machinery was such as to cause choking of cotton as hereinbefore set out, and that same would not perform the services for which it was contracted for, on account of defects in said machinery that were latent, and that defendant could not discover, and that plaintiff, in attempting to remedy same, did not disclose to him the defects in same, but simply said to him, * close down the machinery,’ and then left without placing same in running order. That the trouble in said machinery was of such nature that only a machinist could ascertain and by him be clearly defined, and that it was so hidden this defendant could not do so.” The third paragraph of the answer, as amended, is as follows: “Defendant says that he faithfully put up and operated the machinery in question properly, according to the plan and directions furnished him by plaintiff for the purpose, said blue print having been sent' to defendant by said company, and was used by the company’s said mechanic, Mr. Gunn, in erecting the said machinery, and which blue- print said mechanic, said company’s agent, carried away with him after finishing the erection of said plant; that he employed engine and other motive machinery sufficient for all its needs and to comply with plaintiff’s requirements, and did comply with all requirements of plaintiff in equipment and operation, and defendant used every diligence and skill in seeking to operate said machinery successfully by employing and keeping a competent gin man to run said machinery, and so continued said efforts from the time he first began the use of said machinery, to wit, on the 14th day of August, 1914, throughout the gin season of the year named.” It thus appears that the plea set up and definitely described certain results attendant upon the skilled and proper operation of the machinery, which a machine not defective would not and should not produce, and which it is alleged rendered the outfit unfit for the' services for which it was bought. In the case of Charleston & Western Carolina Ry. Co. v. Attaway, 7 Ga. App. 231 (66 S. E. 548), this court said: “A defect in a machine may be described by showing that the machine was in such condition that it produced certain definitely described results which a machine not defective would not and should not produce. It is not necessary to describe minutely or particularly the physical appearance of the parts alleged to be defective.”' In Atlantic Coast Line R. Co. v. Davis, 5 Ga. App. 214, 217 (62 S. E. 1022), it was held: “To say that a locomotive smoke-stack was so insufficiently constructed that it allowed live sparks of fire to come through describes with legal definiteness a lack in its construction.” In Hubbard v. Macon Railway & Light Co., 5 Ga. App. 223, 226 (62 S. E. 1018), the court used the following language: “Even in pleading it is not necessary that the negligent deficiency be described in structural terms; a deficiency may be sufficiently alleged by stating that the particular contrivance was so constructed or maintained that it gave forth a result which it was designed to prevent, and which such contrivances, as they are usually constructed and maintained, do prevent.” The averments of the plea having, in our opinion, met the requirements of law as laid down in the rulings quoted from, we think the ground of the motion for rehearing is without merit, and the motion is therefore denied.


author: Wade, C. J.

text:
    8703.
    ABRAHAM v. MALOOF & COMPANY.
    1. The evidence authorized a finding against the plea of minority.
    2, 3. The instructions to the jury upon which error was assigned were appropriate. There was no error in the rulings upon admission of testimony; and no merit in the other special grounds of the motion for new trial.
    4. The verdict, being sustained by evidence and approved by the trial judge, can not be set aside.
    Decided December 13, 1917.
    Rehearing denied January 21, 1918.
    Complaint; from Pulton superior court — Judge Ellis. January 13, 1917.

      John P. Haunson, Richard B. Russell, for plaintiff in error.

      A. W. White, Moore & Branch, contra.
   Wade, C. J.

1. The finding of the jury against the plea of minority interposed by the defendant was not unauthorized. The evidence showed, that the defendant came to this country from Syria prior to the year 1911; that his mother resided in Atlanta, Georgia, and he also made his headquarters there for some time, and during a period extending over “about four or five years” he saved up the sum of $1800, after paying for his board and clothes, which he testified was “my money,” derived from a peddling business which he conducted “all over Georgia and Alabama” during the year 1912, and was doing business in his own name, buying goods from the plaintiffs in 1911 and 1912; that the plaintiffs knew he was under age, but “he bought goods in his own name, he was a grown man, and was doing business in his own name,” and the goods were sold him in “that way;” that he decided of his own volition to go to Australia, and there he visited different relatives for a period of 10 or 11 months, and then went to Turkey, whence he returned to Atlanta, Georgia; that he’was about 18 years old at the time he bought the goods from the plaintiffs, for the purchase-price of which the suit was instituted; and that his father was still “in the old country” (Syria). This evidence was uneontradicted, and there is nothing even remotely tending to show any want of permission by the father of the defendant to carry on the business as an adult, — which he conducted in his own name and without apparent interference on the part of any one, making contracts connected therewith and buying and selling, without let or hindrance, and handling and expending the money realized with his efforts in accordance with his own wishes and desires, and discontinuing such business and traveling across at least one half of the globe back to the home of his youth, with the knowledge of his mother and brother as well as of other relatives, from which the knowledge of his father (still lingering in the old world several thousand miles away from the scene of his activities in this country) may be also inferred; from all of which the jury was authorized to infer that he had engaged in and conducted the business as an adult with the permission of his father. Whether or not the defendant, after his arrival at full age, retained the goods or property received by him while a minor, or enjoyed the proceeds thereof, is immaterial in view of the above holding, See, in this connection (though the question is not precisely ruled on there), Cooper v. Claxton, 122 Ga. 599 (50 S. E. 399).

2. The court did not.err in charging to the jury, in effect, sections 4233, 4234, 4235 of the Civil Code, as the instructions so given were appropriate in view of the testimony at the trial and the deductions authorized thereby.

3. The court did not err in any of the rulings as to the admission of testimony; and the various remaining special grounds - of the motion for a new trial are without substantial merit.

4. There was some evidence to sustain the finding of the jury in favor of the plaintiffs, notwithstanding testimony tending to support other defenses besides the plea of minority which we have dealt with above; and the verdict having been approved by the trial judge, this court can not set the same aside.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


author: Harweix, J.

text:
    9254.
    Duren v. The State.
   Harweix, J.

1. The court did not err in allowing a witness to testify as follows: “I heard the defendant’s statement in the recorder’s court. The recorder asked him if he wanted to make a statement, and he replied that he did, and made the following statement: ‘The whisky in the grips was my whisky. It belonged to me.’” The objection to this testimony was that the statement was not freely and voluntarily made; but the evidence does not sustain this contention.

2. There is no merit in the exceptions to portions of the charge to the jury, taken in grounds 2 and 3 of the amendment to the motion for a new trial.

3. The court did not err in charging the jury as follows: “If the confession or statements as proved, if proved, appeared prima facie to have been made without the slightest hope of benefit or remotest fear of injury, as induced by another, and the defendant contends that they were improperly induced, the onus under those circumstances would be upon him to show they were improperly induced.” Eberhart v. State, 47 Ga. 598 (7); McDuffie v. State, 17 Ga. App. 342 (2) (86 S. E. 821).

4. Under the facts in this ease the court did not err in charging as follows: “If the recorder merely gave the defendant an opportunity to make a statement and he voluntarily made it, if you believe that those were the circumstances under which he made it, and that he did make it voluntarily without being induced by another by the slightest hope of benefit or the remotest fear of injury, you will be authorized to find that they were voluntary.”

5. The excerpts from the court’s charge contained in special grounds 6 and 7 of the motion for a new trial are not subject to the exception that they were not authorized by the evidence.

6. The court did not err in instructing the jury that if there was another person with the defendant, and that such person carried a grip containing whisky belonging to the defendant and was carrying it for the defendant and in his presence, such possession would in law he the possession of the defendant, and the jury would be authorized to convict.

Decided December 19, 1917.

Rehearing denied February 8, 1918.

Accusation of misdemeanor; from city court of Macon — Judge Guerry. October 8, 1917. •

John R. Cooper, for plaintiff in error.

Will Gunn, solicitor, contra.

7. The court did not err in charging: “The fact, if it is a fact, that the defendant was searched without a warrant, would not exonerate the defendant, if it appears from the evidence beyond a reasonable doubt that the defendant is guilty,” the defendant’s counsel having argued that the defendant was entitled to acquittal because the officer arrested and searched him without a warrant. Smith v. State, 17 Ga. App. 693 (88 S. E. 42); Jones v. State, ante, 22 (93 S. E. 514); Calhoun v. State, 144 Ga. 679 (87 S. E. 893).

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

Judgment affirmed.

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


text:
    8346.
    Harrell, executor, et al. v. Kelley, administrator, for use, etc.
   Luke, J.

1. Where a copy of a record from a court of ordinary is offered in evidence in another court, accompanied by the ordinary’s certificate as to its correctness, and following the ordinary’s name in the body of the certificate are the words, “Ordinary and ex-off. Clerk of the Court of Ordinary,” and following the ordinary’s signature at the end of the certificate the same ■ descriptive words are repeated, the document is admissible in evidence, over the objection that “it does not affirmatively appear from the certificate of the ordinary that he had no clerk.” Without undesirable prolixity, the certificate could not have been made clearer in this particular respect.

2. Where the judgment of a justice’s court is relevant to the issue in the same or any other court, the original judgment appearing upon the magistrate’s docket is admissible in evidence, over the objection that “a certified copy would be the highest and best evidence.” While a certified transcript may be used to prove such judgment (Civil Code, (1910), §§ 5801, 5802), this privilege does not prohibit the introduction of the original. Singer v. Atlantic Rice Mills Co., 126 Ga. 45 (3) (54 S. E. 821).

3. The plaintiff offered in evidence a certain judgment as the judgment of a justice’s court in a claim case. It was “in favor of the plaintiff against the defendant for the sum of $ — — -, principal, $-, interest,” etc., all of the amounts being left blank. Upon the defendant’s objection to the judgment, the magistrate remarked that “in claim cases” it was not his practice to fill in such amounts. Held, that the magistrate’s remark did not afford any sufficient ground for declaring a mistrial, even though it was made in the hearing of the jury impaneled to try the case in which such evidence was offered.

Decided January 21, 1918.

-Petition for certiorari; from Miller superior court — Judge Worrill. December 8, 1916.

W. I. Geer, for plaintiff in error. Billie B. Bush, contra.

4. The proper judgment in a claim case is one finding that the property in controversy is subject, or that it is not subject, to the fi. fa., and awarding costs against the losing party. Timmons v. Mathis, 9 Ga. App. 713 (2) (72 S. E. 279); Civil Code (1910), § 4751. But where the judgment is improperly entered in the form indicated by the preceding paragraph, it is proper for the magistrate who rendered it to amend it, on motion, whenever at the same or at any subsequent term of his court the correctness of such form may be brought into question. Civil Code (1910), § 5697; Bell v. Bowdoin, 109 Ga. 209 (34 S. E. 339); Nashville &c. Ry. v. Brown, 3 Ga. App. 561 (3) (60 S. E. 319).

5. It is not error for a justice of the peace, during the trial of one case, to amend a judgment previously rendered by him in another case, where it is otherwise amendable and is in any way relevant to the issue in the ease on trial, but if such a judgment is offered in evidence, and ■ is objected to for some amendable defect appearing on the face thereof, • it would be error for him to refuse to amend it upon proper motion therefor. Civil Code (1910), § 5697.

6. The judgment of a justice’s court in a claim case “in favor of plaintiff and against the claimant,” without reciting that the property is subject to the fi. fa., is not so defective as to be subject to the objection that it is “irrelevant and immaterial,” if the same judgment in proper form would be relevant to the issue before the court or jury.

7. The judge of the superior court did not err in refusing to sanction the petition for certiorari.

Judgment affirmed.

Wade, O. J., and Jenkins, J., concur.


author: Jenkins, J.

text:
    8356.
    Adkins v. Dannenberg Company et al.

   Jenkins, J.

1. A person who has elected to adopt one of two or more optional and inconsistent remedies will not thereafter be allowed to change his course and pursue a remedy inconsistent with his first election. Thus, one taking as collateral a purchase-money note with knowledge as to what constitutes its consideration is not permitted to set the sale aside and at the same time recover on the note the purchase-money of the sale.

2. In order for the rule above stated to preclude a recovery on such a note, it must be made to appear that the holder thereof has actually repudiated the sale by adopting a remedy inconsistent with its validity. The fact that the collateral holder of a note which he took with knowledge that it had been given for the “purchase price of an undivided half interest in a stock of. goods, wares, and merchandise” may have subsequently levied on and sold the stock 'as the sole property of the original owner does not of itself necessarily show that the sale was thereby repudiated and set aside. In the evidence in the present case there is nothing to show that the sale was illegal and for that reason set aside by the holder of the note, nor is there evidence of any sort to indicate a' repudiation of the sale other than the one fact of such levy, which of itself can not, under the facts of the case, be taken as conclusive. Treating the statements made in the plea and the evidence in regard to the sale as having reference simply to á purchase of. an interest in the merchandise itself, and not an interest in the business, there is nothing in the proof to show- what portion, if any, of the merchandise so bought continued to remain in the original stock at the time of the subsequent levy; and if the purchase and sale has reference, to an interest in the business itself ’ and under the agreement made subject to its debts (as is perhaps indicated by one of the original pleas setting up fraudulent misrepresentations by the seller as to the amount of indebtedness which the business owed), then' such levy would not amount to setting aside the sale.

Decided January 21, 1918.

Complaint; from Dooly superior court — Judge George. De- . eember 16, 1916.

Jule Felton, for plaintiff in error..

Hardeman, Jones, Parle & Johnston, Harry S. Strozier, contra.

Judgment affirmed.

Wade, O. J., and Luke, J., eoneur.


text:
    8371.
    Hendricks v. Carter.
   Luke, J.

1. The charter of the City of Nashville (Ga. Laws 1910, p. 967, § 16) expressly confers upon the mayor and council of that municipality the power to keep its streets “free from obstructions for the use of the public or any of the citizens of said city.” The jurisdiction . thereby conferred upon the mayor and council as to the removal of such obstructions is not exclusive, but is concurrent with that conferred by the general law upon the ordinary of the county in which the street is located. Civil Code (1910), §§ 825, 4797. No procedure being prescribed by the special law, parties injured by such obstructions may, in petitioning the mayor and council for such relief, properly follow the procedure prescribed by the general law, in so far as it is applicable to the nature and organization of the municipal body.

2. Under the general laws of this State, the mayor and council of a municipal corporation (or such other similar officers as may be designated by the .local law) have undoubted jurisdiction to entertain an application to abate a nuisance caused by the obstruction of a street. Civil Code (1910), §§ 5331, 5332; Carlisle v. Wilson, 110 Ga. 860 (36 S. E. 54); Robins v. McGehee, 127 Ga. 431 (56 S. E. 461).

3. Where territory is lawfully annexed to a city, the new area becomes a part of the city for all municipal purposes, and the public highways therein become streets of the city. City of Columbus v. Ogleiree, 102 Ga. 293 (29 S. E. 749). The power and duties of the municipality over such new area become the same as over the old; and, in a proceeding to remove an obstruction from a street, the fact that the obstruction may have existed prior to and at the time of the annexation of the new territory does not affect the principles involved. Mayor &c. of Macon v. Morris, 10 Ga. App. 298 (2) (73 S. E. 539).

4. Where a particular way is designated, or its location is described with reasonable certainty, it is not necessary, in a proceeding to remove an obstruction therefrom, to describe the tract of land over which such road or street passes. Brennan v. Brooks, 131 Ga. 94 (61 S. E. 1035); Johnson v. Williams, 138 Ga. 853 (76 S. E. 380). In such a case the existence of the way and of the obstruction constitutes the vital matter in controversy, and injuries that may result to adjacent lands from preserving the way are of no concern. It is otherwise in a proceeding to lay out or establish a new way, where the owners of the land over which the proposed way passes must be compensated for such injury as may be thereby done to the freehold.

5. In his application to the mayor and council the plaintiff prayed, among other things, for an order requiring the defendants “to be and appear at the next regular meeting of the mayor and council acting in and for the city of Nashville, to show cause,” etc. The rule nisi issued as prayed, without specifying any time or place for the hearing, except that it should be “before the next regular meeting of the mayor and council.”' The defendant duly moved to dismiss the proceeding, because neither the application nor the rule nisi designated the time or place where such hearing might be had. Reid: (a) The defendant was clearly entitled to legal notice as to the time and place of such hearing, both upon general principles and upon analogy to the Civil Code (1910), §§ 4715, 5501. Baker v. Thompson, 75 Ga. 164; Williams v. Buchanan, 75 Ga. 789. (b) The time and place of the meetings of the mayor and council of the City of Nashville may be prescribed by a municipal ordinance (Ga. Laws, 1910, p. 966, § 13), but they are not prescribed by any legislative act of this State, (c) While the mayor and council may take judicial cognizance of their own ordinances, State courts can not do so, and parties cited to appear before the municipal body are not required to do so, especially where, as in this ease, the ordinance, if any, was passed for observance by the officers of the municipality rather than for the government of the inhabitants thereof. Walker v. Fitzgerald; 103 Ga. 423 (30 S. E. 253). (d) No offer to meet this motion by amendment having been made, the motion should have been sustained and the proceeding dismissed. Richmond & Dan-ville R. Co. v. Benson, 86 Ga. 203 (2) (12 S. E. 357), 22 Am. St. R. 446). (e) The judgment of the mayor overruling such motion being assigned as error in the petition for certiorari, the judge of the superior court err.ed in refusing to sanction the certiorari.

Decided January 21, 1918.

Petition for- certiorari; from Berrien superior court — Judge Thomas. December 22, 191.6.

Hendricks, Mills & Hendricks, for plaintiff in error.

W. B. Smith, contra.

6. A prescriptive right of way, under the Civil Code (1910), § 824, can not be acquired without the constant and uninterrupted use of such way for seven years or more over the same tract, nor without keeping such right of way open and in repair during the same period. Shifting from one place to another as to any part of the route, regardless of the reason therefor, prevents prescription. Follendore V. Thomas, 93 Ga. 300 (20 S. E. 329); Peters v. Little, 95 Ga. 151 (22 S. E. 44). Eailure to keep the way open and in repair during such period, even though the same route be used constantly and without interruption, will likewise prevent prescription. Johnson v. Sams, 136 Ga. 448 (2) (71 S. E. 891), and cases there cited.

(a) “Equity abhors forfeitures and the law does not favor them.” The principles underlying a prescriptive right of way (which may be acquired without any compensation to the owner of the land used) are not, therefore, to be confounded with the principles regulating the establishment of a new or necessary way in any of those cases wherein ■ adequate compensation to the landowner is provided by law. Civil Code (1910), § 3641.

7. Tn this case the burden was Upon the plaintiff in the trial court to establish his alleged prescriptive right of way. The evidence introduced by him was insufficient for that purpose, while the positive testimony introduced by the defendant clearly established the contrary. The judge of the superior court, therefore, erred in refusing to sanction the certiorari, wherein the finding in favor of- the plaintiff was assigned as error because contrary to law and without evidence to support it. '

Judgment reversed.

Wade, 0. J., and Jenlcins, J., eoncur.


text:
    8391.
    Tidwell v. Garrick.
    Decided January 21.
    — -Rehearing denied January 31, 1917.
    Eviction; from Meriwether superior, court — Judge E. W. Freeman. December 26, 1916.

      H. A. Allen, for plaintiff.

      N. F. Culpepper, J. F. Hatchett, for defendant.
   Luke, J.

The plaintiff assigned no error of law in the trial of the case; and, the motion for new trial being based upo'n the general grounds only, and there being some evidence to authorize the verdict, this court must affirm the judgment overruling the motion for a new trial.

Judgment affirmed.

Wade, O. J., and Jenlcins, J., concur.