author: Bloodworth, J.

text:
    11185.
    STRICKLAND v. THE STATE.
    Decided March 2, 1920.

      One who knowingly has in his possession on his premises the boiler and worm of a still used for distilling intoxicating liquor may be convicted under an indictment which charges him with having knowingly had in his possession on his premises “a certain apparatus” for distilling and manufacturing such liquor, although it may appear from the evidence that a cap would be necessary to complete the still for that purpose, and that no such cap was found in his possession. Davis v. State, 24 Ga. App. 319 (100 S. E. 782), distinguished.
    The charge of the court was not subject to the exceptions taken; it sufficiently covered the requested instruction, and the evidence authorized the verdict.
    Indictment for misdemeanor; from Cobb superior court — Judge Morris. December 9, 1919.

      C. M. Dobbs, Clay & Giles, for plaintiff in error.

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

The indictment charged that the defendant did “knowingly have in his possession ... a certain apparatus for the distilling and manufacturing of intoxicating liquors and beverages.” Upon the trial of the ease the sheriff testified: “I received information that Perry Strickland was running a still, and I went to his home in Cobb county, along about the first of the year, , , I searched the home of the defendant and I found a still in the bedroom. In the basement I found 25 or 30 gallons of beer and three pecks — something like three peeks — of meal. It was a copper still. There was a pot and worm. The pot that they boil in was sitting behind the bed in the bedroom, and the worm was on the bed under the cover. I never measured the still, but it would hold, I guess, 20 or 25 gallons. What I found was an apparatus used for the manufacture and distilling of intoxicating liquors. (On cross-examination.) To constitute a complete still it takes what is called a pot or body part of a still to boil in; that is what they do the boiling in, is the pot; then it takes a cap, which is the top that goes over the boiler; then it takes a worm that leads through a condenser. There wasn’t any cap there; I couldn’t say it was a complete outfit. I stated what I found there; a man has to have a cap to make liquor. The apparatus found there was only a boiler and worm. I didn’t find any cap. The meal I found was sprouted corn. Wasn’t any sign that the still'Was running. Perry told me that he found this apparatus in the cane-brake on the creek.' (On examination by court.) The material I found is used for making whisky. I found 25 or 30 gallons of beer in a 50-gallon barrel. It was half full, possibly a little over. The beer is used for making whisky — intoxicating whisky. (Cross.) You would have to have* a cap- to make liquor with the apparatus I found in Perry’s place, and I didn’t find. a cap there; therefore you couldn’t make intoxicating liquors with that apparatus. (Redirect.) In the basement there was a place fixed for the smoke to go from down in the basement up into the chimney of the kitchen, but there wasn’t any furnace built — there was a place for. the smoke to go from the basement. I examined the branch and the land around where the house- was located, but I don’t think I found anything. There is a branch on this place, but not right near the -house. There are three rooms and a hall, and I went into all the-rooms, but I did not find the cap. (Cross.) I stated a while ago that this still had a boiler and worm, but no cap. I don’t think you could malee liquor with [without ?] a cap. ■ Perry couldn’t- have -,manufactured or distilled ..any intoxicating liquor or-beverages- on the outfit I found without a cap, and-the cap wasn’t there. What I found was just part of the apparatus to distil, manufacture, and make liquor. It takes a cap to make a complete outfit, and I found no cap there. (Direct.) The apparatus I found'there ivas used for making whisky. It wasn’t a complete outfit, on account of the absence of the cap. The cap is the part that fits cfver the top of the boiler, and a long-spout runs out and goes into the worm. The boiler and worm were both copper and [in?] the apparatus I found.” The defendant introduced no evidence, and in his statement denied his guilt, and contended that he found the apparatus in a cane-brake while' hunting, and did not know what it was. The jury returned a verdict of guilty. The defendant made a motion for new trial, which was overruled by the court, and the defendant excepted.

1. Error is assigned upon the following charge of the court: “If you believe, beyond a reasonable doubt, that this defendant did have in his possession a copper still and worm, and that was an apparatus-—-have in his possession on his premises, as charged in the indictment and as I have already explained, under distilling and manufacturing of liquor, intoxicating liquor or beverages, why he would be guilty under the law, even though that wasn’t a complete outfit for the manufacture of liquor. If he had a still and worm, and that was a part of an apparatus used for the manufacture of liquor, as I have already charged you, and as set out in the-indictment, . . . and that still and worm-—-they were an apparatus used for the distilling or manufacturing of intoxicating liquor, why he would be guilty under the law, even though he didn’t have the cap, if he- didn’t have a cap-, as insisted on the part of the defense, which would be necessary, as they contend, for the making of a complete apparatus for the manufacturing of liquor. As I have charged you, if he had a part of an apparatus for the distilling or manufacturing of intoxicating liquors-—-if he had it as charged in the indictment and as I have already explained, under the rules given you, why he would be guilty under the law, even though he didn’t have a complete apparatus necessary for the manufacture of liquor.” The movant contends, in substance, that this charge was erroneous and prejudicial to the defendant, because the term “apparatus,” as used in the act under which defendant was indicted, means a “complete apparatus,” and all the apparatus necessary for the making of whisky; and cites as authority for this contention the case of Davis v. State, 24 Ga. App. 319 (100 S. E. 782), That case is not in point. , In that case the indictment charged possession of an apparatus “consisting of a complete still;” and, having charged that the apparatus constituted a complete still, the State was required to prove the allegation. See Sou. Express Co. v. State, 23 Ga. App. 71 (2) (97 S. E. 550), and cit. In the instant case the indictment described the apparatus as “a certain apparatus for the distilling and manufacturing of intoxicating liquors,” and the State proved that the apparatus found on the defendant’s premises was for use in the manufacture and distilling of intoxicating liquors. The indictment did not charge that all the apparatus for the manufacturing of liquor was there, nor did it charge that the defendant was in possession of a “complete still,” as did the indictment in the Davis case. We interpret the word “apparatus,” as used in this act, to mean any apparatus used to make intoxicating liquors. If it were necessary for the State to prove that the apparatus was complete in every detail, it would defeat the real purpose and intent of this law; for the distiller could make liquor to his heart’s content, then take off a cap or some small but essential part of the apparatus until ready to resume his work, and, if the officers found the still in the meantime, he could easily evade the law by proving that the apparatus was not all there. We see no error in the charge as complained of above. See Williams v. State, 61 Ga. 417, 418. This disposes of the 1st, 2d, and 3d grounds of the amendment to the motion for a new trial, which were argued' together in the brief of counsel for the plaintiff in error.

2. There is no merit in the 4th ground of the amendment to the motion, the judge having substantially covered in his charge the charge requested, to the effect that if the defendant found on his place an apparatus for making liquor as charged, and did not know what it was, and it was afterwards found in his possession, and he had no intention to violate the law, he should be acquitted.

3. The evidence amply supports the verdict, which has the approval of the trial judge; no error of law appears, and the judgment is Affirmed.

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


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    11122.
    FICKLEN et al. v. ELBERTON & EASTERN RAILROAD CO.
    Decided March 2, 1920.
    Where in an action for damages on account of the closing of ways of entrance to certain lands by the construction of a railroad it appeared, from evidence of the plaintiffs, that the passageway closed was not a private way or public road as defined by law, and that there was still a way to cross the railroad and reach the lands of the plaintiffs, though not as convenient as the one closed, and that in condemnation proceedings before the railroad was built, damages as to the same lands were assessed in favor of the plaintiffs against the railroad company, the court did not err in granting a nonsuit.
    Action for damages; from Wilkes superior court — Judge Walker. November 3,1919.

      Carroll D. Colley, Clement E. Button, for plaintiffs.

      W. A. Slaton, for defendant.
   Luke, J.

The plaintiffs sued the railroad company for damages, alleging that they had been damaged by reason of the construction of a railroad across their land and the enclosing of certain claimed ways of entrance thereto, etc. At the conclusion of the plaintiffs’ evidence the court granted a nonsuit, and upon this judgment error is assigned. An examination of the evidence shows that the plaintiffs were inconvenienced by reason of the railroad embankment and the closing of a certain passageway, which, however, was not a private way or a public road as defined by law, and that there is a way to get across the railroad and reach the lands of the plaintiffs, though not as convenient as one would wish. But before the railroad was built, condemnation proceedings were had, and the plaintiffs’ damages were, by a verdict of a jury in the superior court upon an appeal from the return of the assessors in the condemnation proceeding, assessed as to the very lands now giving rise to the claim for damages. We see no error in the nonsuit. See Cox v. E. T. &c Railroad, 68 Ga. 446; Civil Code (1910), § 807.

Judgment affirmed.

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


text:
    11142.
    RASKIN v. THE STATE.
    Decided March 2, 1920.
    The sentence in this case, that the defendant, who was found guilty on two counts of the accusation, “ be for the space of eighteen months (nine months on each count) put to work on the chain-gang,” etc., must he construed as imposing successive, not concurrent, terms of punishment of nine months each.
    Certiorari; from Chatham superior court — Juclge Meldrim. September 26, 1919.

      Robert L. Colding, for plaintiff in error.

      Walter C. Hartridge, solicitor-general, contra.
   Luke, J.

The question presented in this case is as to the construction of the following sentence based upon a verdict of a jury-finding the defendant guilty upon two counts in an accusation charging the defendant with the violation of the prohibition statute, to wit:

“It is considered and ordered that the said defendant be for the space of eighteen months (nine months on each count) put to work on the chain-gang of Chatham county on the public road or on such other public works as the county authorities, to wit, the commissioners and ex-officio judges of Chatham county, may employ the chain-gang.” It is contended by the plaintiff in error that under this sentence the nine months would be served concurrently. We do not agree with this contention. We think the true construction is that the defendant was sentenced to nine months on each count, aggregating eighteen months. If the sentence had said nothing more than “nine months on each count,” and had not provided how the sentence should be served, then of course the nine months would have been served concurrently. The defendant having served a portion of his sentence, it was not error to require him to serve the remainder of the sentence. The judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

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


text:
    11155.
    Lewis v. The State.
    Decided March 2, 1920.
    Conviction of manufacture of intoxicating liquor; from Haralson superior court — Judge Irwin. October 7, 1919.

      Griffith & Matthews, for plaintiff in error.

      J. R. Hutcheson, solicitor-general, contra.
   Bloodworth, J.

1. A ground of the motion for a new trial complains of the admission of evidence relative to whisky found in a house not identified in any way in this ground, and there described only as “the house.” To ascertain what house is referred to it would be necessary to look to • the brief of evidence, and this court is ’ not required to do this. “Under repeated decisions of this court and of the Supreme Court, each special ground of a motion for a new trial must be complete within itself; and when so incomplete as to require a reference to the brief of the evidence, or to some other portion of the record, in order .to determine what was the alleged error and whether such error was material, the ground will not be considered by the reviewing court.” McCall v. State, 23 Ca. App. 770 (1) (99 S. E. 471).

2. The court did not err in refusing to rule out the evidence of which complaint is made in the 2d ground of the amendment to the motion for new trial.

3. .When considered in connection with the remainder of the charge of the court, there is no' error in the portion of which complaint is made in ground 4 of the motion for new trial.

4. Failure to give in charge to the jury the “ indeterminate sentence 55 law (Ga. L. 1919, p. 387) could not have been harmful to the accused, for the judge charged the jury, “If you find him guilty you can go further and say, ‘ We recommend him to the mercy of the court,5 which would mean a misdemeanor punishment,” and the jury did so recommend.

5. The evidence authorized the verdict, which has the approval of the presiding judge; no error of law appears, and the judgment is

Affirmed.

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


text:
    11158.
    INGRAM v. THE STATE.
    Decided March 2, 1920.
    A conviction of carrying a pistol concealed was authorized by the evidence.
    Accusation of misdemeanor; from city court of Oglethorpe — Judge Greer. November 3, 1919.

      Jule W. Felton, M. Felton Hatcher, for plaintiff in error.

      John B. Guerry, solicitor, contra.
   Luke, J.

The jury were authorized to convict the defendant of carrying a pistol concealed. The witness for the State testified that the defendant pulled a pistol from his hip-pocket, and that the pistol was concealed. We do not agree with the contention that the evidence amounts to no more than a conclusion drawn by the witness that the pistol was concealed, and that the conclusion was unauthorized. Under the evidence and the statement of the defendant, there is but one verdict that the jury could reach, and that is a verdict of guilty. This case is clearly distinguishable from Stripling v. State, 114 Ga. 538 (40 S. E. 733). In view of the note of the trial judge and a reading of the charge as a whole, there is no- merit in the exception to the charge of the court. ,

Judgment affirmed.

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


text:
    11161.
    WOODALL v. THE STATE.
    Decided March 2, 1920.
    Rehearing denied April 13, 1920.
    1. That the accused had not been tried at the first or the second term of the court after demand for trial was not ground for discharging him, under the facts appearing in the record.
    2. Eailure to charge the jury on the law as to circumstantial evidence was not ground for a new trial, under the facts of the ease.
    3. Prejudicial remarks of the court in the presence and hearing of the jury are not ground for a new trial, unless a motion to declare a mistrial on that ground has been made and refused.
    Indictment for larceny; from Delvalb superior court — Judge Hutcheson. November 8, 1919.
    Application for certiorari was denied by the Supreme Court.

      Paul L. Lindsay, for plaintiff in error.

      George M. Napier, solicitor-general, contra.
   Bloodworth, J.

1. At the September adjourned term, 1918, the accused filed a demand for trial, which was allowed by the court and entered on the minutes. At the June term, 1919, his counsel filed a motion in which he alleged the filing of the demand, and that he had been present in court and ready for trial at every term since the demand was allowed, and he prayed the court “for a direction of a verdict of not guilty.” Treating this as a motion for discharge under the demand, it was properly overruled. Neither the motion nor the evidence introduced on the trial thereof showed that at the term when the demand was allowed and at the next succeeding term there were jurors impaneled and qualified to try the accused. “Demand for trial is not cause for discharge, unless at the term when the demand was made and at the next succeeding term, there were juries impaneled and qualified to try -the prisoner. That there were such juries at both terms must appear to the Supreme Court affirmatively, in order for it to rev&rse a judgment of the superior court denying the discharge.” Roebuck v. State, 57 Ga. 154 (1-2). See also Penal Code (1910), § 983; Adams v. State, 65 Ga. 516, 517 (1) ; Hunley v. State, 105 Ga. 638 (31 S. E. 543).

2. Under the facts of this case and in view of the charge given, the court did not err in failing to charge on circumstantial evidence.

3. The 6th ground of the motion for a new trial alleges that the use of certain words by the court, in the presence of the jury, during the progress of the case was harmful error and prejudicial to the movant. No motion to declare, a mistrial was made on account of the alleged prejudicial remark. “Prejudicial remarks of the court in the presence and hearing of the jury are not ground for a new trial, unless a motion to declare a mistrial on that ground has been made and refused.” Harrison v. State, 20 Ga. App. 157 (6), 160 (6) (92 S.E. 970).

4. There is evidence to support the finding of the jury, which was approved by the trial judge, and the verdict will not be disturbed by this court.

Judgment affirmed.

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

ON MOTION FOR REHEARING.

In the motion for rehearing filed in this case, it is alleged that this court overlooked certain recitals in the bill of exceptions and certain decisions of this court and of the Supreme Court. Neither the recitals nor the decisions were overlooked. This court can review such questions only as the record shows were made and passed upon by the trial court. In this case the record shows that a written application was made for the direction of a verdict of not guilty. The court had no right to direct a verdict of not guilty, even though everything had been done necessary to the discharge of the defendant under his demand for trial. This court treated the application as one for a discharge of the defendant. The trial judge passed upon the motion as made and the evidence introduced thereon, and, as said in the original opinion, “neither the motion nor the evidence introduced on the trial thereof showed that at the term when the demand was allowed and at the next-succeeding term there were juries impaneled and qualified to try the accused.” The proposition urged in the motion for a rehearing was not presented to -the trial judge, but appears.for the first time in the bill,of exceptions; and the principle is settled that a question neither raised nor passed upon in the lower court can not be considered by a reviewing court. Mewborn v. Weitzer, 15 Ga. App. 668 (2) (84 S. E. 141); Contitinental Aid Assoc. v. Hand, 22 Ga. App. 726 (97 S. E. 206), and cit.; Patterson v. Bank of Alapha, 148 Ga. 356, 357 (96 S. E. 863; Bolton v. City of Newnan, 147 Ga. 400 (94 S. E. 236).

In addition to the above, the assignment of error in the bill of exceptions is incomplete. While it is alleged that at the September and December terms, 1918, “juries were present and qualified to try said defendant, and defendant was not given a trial,” it does not appear that there was a jury present and qualified to try the case when the demand was made. Hall v. State, 21 Ga. 148 (2). Nor does it appear that the case was not continued by the consent, or the failure to try was not due to some voluntary act of the accused. “A waiver of the demand would result from a continuance granted on the motion of the accused, or from any other act on' his part showing affirmatively that he consented to passing the case until a subsequent term.” Walker v. State, 89 Ga. 482 (15 S. E. 553). See also Flagg v. State, 11 Ga. App. 37 (1), 38 (1, 2) (74 S. E. 562), and cit.

Rehearing denied.

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


text:
    11171.
    Long v. The State.
    Decided March 2, 1920.
   Luke, J.

The error assigned upon two excerpts from the charge of the court is wholly without merit. The charge of the court was most fair, and fully presented the issues in the case. The evidence amply authorized the verdict finding the defendant guilty.

Judgment affirmed.

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

Indictment for robbery; from Fulton superior court —Judge Humphries. November 15, 1919.

Claude D. Rowe, G. H. Cornwell, for plaintiff in error.

John A. Boykin, solicitor-general, E. A. Stephens, contra.


text:
    11172.
    Gardner v. The State.
    Decided March 2, 1920.
    Conviction of manslaughter; from Marion superior court — Judge Howard. November 15, 1919.

      W. D. Crawford, for plaintiff in error.

      C. F. McLaughlin, solicitor-general, contra.
   Bloodworth, J.

1. When the instructions complained of are read, in connection with the remainder of the charge of the court, there is no error in them.

2. Under the faets of the ease the court did not err in failing to give in charge of the jury section 75 of the Penal Code of 1910, which declares that “all other instances which stand upon the same footing of reason and justice as those enumerated shall be justifiable homicide.” Besides, the complaint is that the judge, after charging a certain proposition of law of which no complaint is made, erred in not giving the language of this section therewith. This court and the Supreme Court have in numerous cases held that an exception to a correct charge because of the failure to give in the same connection some other pertinent legal proposition is not a good assignment of error. Conley v. State, 21 Ga. App. 134 (1) (94 S. E. 261), and cit.

3. The court did not err in refusing to give to the jury the requested instruction embodied in the fourth ground of the motion for new trial.

4. The 'alleged newly discovered evidence in this case is cumulative, and it is not probable that it would produce a different result on another trial. It consists of a threat made by deceased against the defendant. On the trial the defendant introduced evidence of such a threat; so it appears that a new witness was discovered instead of new evidence. It is simply more evidence of the same kind to the same point. Civil Code 1919, § 1088; Brinson v. Faircloth, 88 Ga. 185 (1), 187 (1) (7 S. E. 923) ; Burgess v. State, 93 Ga. 304 (20 S. E. 331); Hayne v. Candler, 99 Ga. 214 (25 S. E. 606) ; Jinks v. State, 117 Ga. 716 (44 S. E. 814).

5. There is ample evidence to support the verdict.

Judgment afprrmed.

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


text:
    11193.
    ADAMS v. THE STATE.
    Decided March 2, 1920.
    Failure to charge the jury that the burden of proof was on the State, to satisfy their minds, beyond a reasonable doubt, of the guilt of the defendant as charged, was ground for a new trial.
    Accusation of abandonment of child; from city court of Nashville'— Judge Smith. December 12, 1919.

      Story & Story, for plaintiff in error.

      J. H. Gary, solicitor, W. D. Buie, contra.
   Luke, J.

The defendant in this case was charged with the offense of abandoning his minor child. The court in charging the jury failed to charge that the burden of proof was upon the State to satisfy their minds, beyond a reasonable doubt, of the guilt of the defendant as charged. We must agree with the exception of the defendant to the court’s failure to. charge upon the question of reasonable doubt. It was error to overrule the motion for a new trial in this case.

Judgment reversed.

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


text:
    11198.
    HENDRIX et al. v. THE STATE.
    Decided March 2, 1920.
    In view of the evidence and the issues in this case, the court, whether so requested to do or not, should have charged the jury to the effect that if no conspiracy or concert of action between the defendants was shown by the evidence, each would, be responsible only for wounds inflicted by himself, and if the evidence showed that only one of them killed the person with whose homicide they were charged, only that one could be found guilty. Failure to give such a charge requires that a new trial be granted.
    Conviction of manslaughter; from Bockdale superior court — Judge Hutcheson. December 6, 1919.

      C. R. Vaughn, King & Johnson, for plaintiffs in error.

      George M. Napier, solicitor-general, contra.
   Bloodworth, J.

Father and son were jointly indicted for murder and tried together. The evidence shows that each of them shot at the deceased; that several shots were ñred, and the wounds, as well as the bullets taken from the bodjq disclosed that pistols of different caliber were used. The evidence fails to point out which wound or wounds caused the death. It is the duty of the judge in charging the jury, even without being requested to do so, to cover every material issue in the case. The defendants insisted that there was no conspiracy between them to do any unlawful act of violence to the deceased, but that he made an assault on the father, shooting him, and that the father shot in self-defense, and the son in defense of his father, each acting independently. They insist that the court ignored their theory that the defendants were acting independently, and that “in the absence of a conspiracy or concert of action on the part of both defendants, or of the procurement one by the other, each was responsible only for the wounds inflicted by himself, and would not be legally responsible for the wounds inflicted by the other, so that if under such circumstances one shot and killed the decedent, the jury would not be authorized to find both guilty.” As there is evidence which would authorize a charge on conspiracy, the judge should have charged thereon, and it was error, demanding the grant of a new trial, for the court to fail to charge that if the evidence showed no conspiracy or concert of action, then each of the defendants would be responsible for the wounds inflicted by himself only, and if the evidence showed that only one of them killed the deceased, then one alone would be guilty.

When the above principles are applied in the trial of this case, the errors in the charge complained of will be cured. It is not necessary to pass upon the other alleged errors, as it is not likely that they will reappear on another trial.

Judgment reversed.

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


text:
    10837.
    Bennett v. Hendricks.
    Decided March 3, 1920.
    Complaint; from city court of Nashville — Judge Lovett. August 2, 1919.

      Ira S. Clary, for plaintiff in error.

      W. G. Harrison, contra.
   Luke, J.

It appearing, from the uncontradieted certificate of tlie clerk of the city court, in the record, that this ease has been settled between the parties, the questions raised in the bill of exceptions are moot, and the writ of error must be

Dismissed.

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


author: Broyles, C. J.

text:
    10929.
    Friedman v. Ice Delivery Company.
    Decided March 3, 1920.
    Complaint; from Chatham superior court — Judge Meldrim. August 6, 1919.

      Osborne, Lawrence & Abrahams, for plaintiff.

      Oliver & Oliver, Saussy & Saussy, for defendant.
   Broyles, C. J.

1. The court properly overruled the 1st and 3d grounds of the plaintiff’s demurrer to the defendant’s answer. If the court erred in overruling the other grounds of the demurrer, the error was rendered harmless by the subsequent ruling of the .court, and the specific amount of the verdict returned, by direction of the court, in favor of the defendant. See, in this connection, Central of Georgia Ry. Co. v. Butler Marble & Granite Co., 8 Ga. App. 1 (6), 8 (6) (68 S. E. 775).

2. Under the pleadings and the evidence, the special grounds of the motion for new trial are without substantial merit.

3. In this case there was no material issue of fact to be submitted to the jury, but the controlling question was one of law, to wit, the construction of the contract — the breach of which by the plaintiff formed the basis of the defendant’s counter-claim for damages. Under all the particular facts of the case, the court did not err in holding that the contract was valid and enforceable, or in directing a verdict in favor' of the defendant for the specific amount stated therein.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    10930, 10936.
    Maxwell Brothers v. Harrison; and vice versa.

   Luke, J.

1. That a debtor, after the • maturity of the debt, addresses to the creditor one or more letters in which he .asks for indulgence and promises to pay the debt if its collection is not pressed will not estop him from subsequenly setting up the defense of partial failure of consideration, even though the facts upon which this defense is based were known to him at the time he wrote the payee to the effect stated, is settled in Pearson v. Brown, 105 Ga. 802 (31 S. E. 746).

(a) This ruling is not in conflict with Harder v. Carter, 97 Ga. 273 (23 S. E. 82), or Lunsford v. Malsby, 101 Ga. 39 (28 S. E. 496). The Supreme Court, in Pearson v. Brown, supra, pointed out the distinction.

2. It was not error to admit the evidence complained of in the motion for-a new trial.The evidence authorized, the verdict, which has .the approval of the trial judge, and for no reason assigned was it error to overrule the motion for. a mew. trial.

Decided March 3, 1920.

Appeal; from Taliaferro superior court — Judge Walker- August 27, 1919.

J. S. Watkins, for plaintiff in error.

A. G. Golucke, contra.

Judgment on main bill of exceptions affirmed; cross-bill of exceptions dismissed.

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


text:
    10938.
    Drury v. Cameron & Barclay Company.
    Decided March 3, 1920.
    Petition for certiorari; from Camden superior court — Judge Highsmith. September 13, 1919.

      Cowart & Vocelle, for plaintiff in error.

      S. C. Townsend, contra.
   Luke, J.

It appearing from the motion and the affidavit of counsel for the defendant in error that the judgment excepted to by the plaintiff in error has been paid by him, the' questions raised by the bill of exceptions have become moot, and the writ of error must be

Dismissed.

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


text:
    10970.
    McElveen v. Handshaw.
    Decided March 3, 1920.
    Trover; from Bulloch superior court — Judge Hardeman. August 28, 1919.

      Fred T. Lanier, for plaintiff in error.

      T. B. Hunter, contra.
   Luke, J.

The evidence in this ease — a trover suit — demanded a verdict in favor of the plaintiff as to title, and it was not error for the court so to instruct the jury. The only remaining issue was as to the proved value of the property sued for. The charge of the court upon this question was appropriate and full. The evidence authorized the verdict for the plaintiff, and, the judge of the superior court having approved that finding, it was proper to overrule the motion for a new trial.

Judgment affirmed.

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


text:
    10993.
    Russell v. City of Columbus.
    Decided March 3, 1920.
    Certiorari; from Muscogee superior court — Judge Howard. September 20, 1919.

      S. M. Davis, for plaintiff in error.

      H. C. McCutchen, contra.
   Luke, J.

In this case no certified copy of the bond is attached to the petition for certiorari, nor does the petition set forth the essentia] facts that would enable the superior court judge to decide whether a proper bond was given, and, therefore, the case falls squarely within the rule laid down in Gillespie v. Macon, 19 Ga. App. 1 (90 S. E. 970), and cit. The judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

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


text:
    11050.
    Jackson v. The State.
    Decided March 3, 1920.
    Indictment for misdemeanor; from Terrell superior court — Judge Worrill. October 4, 1919.

      R. R. Jones, for plaintiff in error.

      B. T. Castellow, solicitor-general, R. R. Arnold, contra.
   Luke, J.

The excerpt from the charge of the court is subject to the criticism that it 'slightly inaccurately states the inference raised against one who is found in possession of stolen goods recently after the commission of a larceny of the goods. It does not, however, instruct the jury that recent possession creates a presumption of law that the defendant is guilty of larceny of the goods. The charge in this case is different from the charges given in Falvey v. State, 85 Ga. 158 (11 S. E. 607), and Cuthbert v. State, 3 Ga. App. 600 (60 S. E. 322), and cit. The charge complained of in the instant case instructs the jury that they would be authorized to presume that the defendant found in possession, 'Of the stolen property was the thief, unless his possession be explained. In the Cutlibert case, supra, the jury were instructed that recent possession is a circumstance which the law considers sufficient to justify the assumption that he is the thief. The charge of the court did not mislead the jury, and the evidence authorized the conviction of the defendant, and for no reason assigned was it error to overrule the motion for a new trial.

Judgment affirmed.

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


author: Bloodworth, J. Luke, J.,

text:
    11060.
    Broyles v. The State.
    Decided March 3, 1920.
    Conviction of manslaughter; from Bibb superior court — Judge Mathews. September 30, 1919.

      J. F. Urquhart, W. A. McClellan, for plaintiff in error.

      Charles H. Garrett, solicitor-general, John P. Ross, contra.
   Bloodworth, J.

1. The charge of the court in this case was full and fair, and when the excerpts complained of are read in connection with the remainder of the charge and in. the light of all the facts of the case, they contain no error that would require the grant of a new trial.

2. As far as pertinent and legal, each request to charge was sufficiently covered by the charge given.

3. The evidence authorized the verdict; the judge approved it, and the judgment is

Affirmed.

Broyles, C. J., concurs.

Luke, J.,

dissenting. I cannot concur with my colleagues in the holding that the charge in this case was fair. The court instructed the jury, among other things, that they would be authorized to find the defendant guilty' of murder, unless they believed “upon her other defense she was justified in believing that it was necessary to kill her (deceased), if she did kill her, in order to prevent adulterous intercourse or the resumption of adulterofis relation about to be resumed, and that' it was necessary and that the danger of such adulterous conduct between her husband and the deceased was imminent at the time.” It will be seen from this excerpt that the judge so qualified and limited his instruction as to make the justification of the accused for the alleged homicide depend upon whether or not “the danger of such adulterous conduct between her husband and the deceased was imminent at the time." This, in my opinion, was reversible error. In fact this court so held in the case of Miller v. State, 9 Ga. App. 599 (90 S. E. 970), wherein it is said:

“While a father cannot lawfully kill one merely because he has had unlawful sexual intercourse with his daughter, still he may justify the homicide by showing that it was necessary in order to prevent further acts of fornication. In a prosecution for homicide, where there is evidence such as to authorize the jury to find that the deceased had been maintaining illicit sexual relations with the defendant’s minor unmarried daughter, and had threatened to kill the father if he interfered, and that even after the father had become apprised of what had taken place, and was taking guard to prevent the further debauching of his child, the defendant, in company with the daughter, came upon the deceased under such circumstances as to indicate that he was endeavoring to continue the illicit relationship, and would likely seek to do so notwithstanding the father’s protest, an instruction of the court to the jury in the following language was erroneous: The killing, if necessary, or apparently so to a reasonable mind, in order to protect the daughter at the time of the killing, would be justifiable. The killing must be necessary, or apparently so, to prevent the deceased from accomplishing his purpose then and there.’ The qualification contained in the words then and there ’ rendered the instruction erroneous.”


text:
    11075.
    Roberson v. The State.
    Decided March 3, 1920.
    Indictment for burglary; from Fulton superior court — Judge Humphreys. September 27, 1919.

      Albert Kemper, for plaintiff in error.

      John A. Boykin, solicitor-general, E. A. Stephens, contra.
   Luke, J.

“To sustain a conviction upon tiie testimony of an accomplice, there must be corroborating circumstances which, in themselves and independently of the testimony of the accomplice, directly connect the defendant with the crime, or lead to the inference that he is guilty.” The evidence in this case, which was given by an accomplice, is without corroboration directly connecting the defendant with the crime or leading to the inference that he is guilty. See Stokes v. State, 19 Ga. App. 235 (915 E. 271), and cit. There being no other evidence of guilt, it was error to overrule the motion for a new trial.

Judgment reversed:

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


text:
    11081, 11082.
    11083.
    Bank of Baconton et al. v. DeBerry et al.; and vice versa. Cowan v. Bank of Baconton.
    Decided March 3, 1920.
    Trover; from city court of Camilla — Judge Burson. September 26, 1919.

      Peacock & Gardner, C. E. Crow, J. W. Gardner, J. W. Hill, for plaintiff in error.

      Johnson & Warren, E. E. Cox, E. M. Davis, contra.
   Broyles, C. J.

Bpon all tlie facts of the case the court did not err in awarding a nonsuit.

Judgment on main hill of exceptions, affirmed; cross-hills dismissed.

Luke and Bloockworth, JJ., concur.


text:
    11087.
    Griffin et al. v. Hines, director-general.
    Decided March 3, 1920.
    Action for damages; from city court of Amerieus-—■ Judge Harper. October 30, 1919.

      Wallis & Fort, for plaintiffs.

      Yeomans & Wilkinson, R. T. Hawkins, for defendant.
   Broyles, C. J.

In this case the evidence of the railroad employees (the engineer and fireman of the train that struck and killed the plaintiff’s mule), which showed that they exercised all ordinary and reasonable care and diligence to avoid injuring the mule, was contradicted in several material respects by evidence introduced by the plaintiff. It was therefore a question for the jury to decide whether the presumption of negligence against the defendant, which arose when it was shown that the animal had been killed by the running of one of the defendant’s trains, was rebutted by the evidence adduced; and the court erred in directing a verdict for the defendant.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    11090.
    Wilson v. Small, administrator.
   Broyles, C. J.

When this ease was here before (20 Ga. App. 674, 93 S. E. 518), the controlling questions of law were settled by this court, and the rulings then made became the law of the ease. Upon the trial now under review the evidence did not demand the verdict returned, and the court accordingly did not err in granting a new trial, it being the first grant thereof to the defendant in error.

Decided March 3, 1920.

Trover; from city court of Macon — Judge Guerry. September 19, 1919.

Hardeman, Jones, Park & Johnston, for plaintiff.

Gunn & Powers, P. F. Brock, for defendant.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11095.
    Rawleigh Medical Company v. Burney et al.

   Broyles, C. J.

1. Before the presumption of the receipt of a letter by the addressee arises, the evidence must aflirmatively show that the letter was written, properly addressed and stamped, and mailed. Hamilton v. Stewart, 108 Ga. 472, 476, (34 S. E. 123) ; National Building Association v. Quin, 120 Ga. 358 (3), 364 (47 S. E. 962); Bush v. McCarty, 127 Ga. 308, 314 (56 S. E. 430) ; Rawleigh Medical Co. v. Burney, 22 Ga. App. 492 (96 S. E. 578).

(a) By the term “mailed” is necessarily meant the deposit of the letter in a United States postoffice or United States postal mail-box, or in the custody of a United States mail-collector.

2. In this case the evidence wholly failed to establish affirmatively the essential fact that the letter alleged to have been written and mailed by the defendant to the plaintiff was deposited in any postoffice or United States postal mail-box, or entrusted to any United States mail-collector. On the contrary, the evidence showed that the letter, after having been .written, properly stamped, and addressed, was merely placed ill a cigar-box in a grocery-store, which box was used as a place to hold letters which were to be subsequently carried by some agent or employee of the grocery company to the postoffice and there mailed. While there was some evidence that, subsequent to the placing of the letter in question in the cigar-box, the letters therein (several letters being in the box on that occasion) were carried by an employee of the grocery company to the postoffice and there mailed, there was no direct or positive evidence that this particular letter was so carried and mailed. The employee who on that occasion carried the mail from the grocery-store to the postoffice testified that he could not say how many letters he carried to the post-office that night, or what letters they were, and that he did not recollect seeing this particular letter when he carried the mail. It was possible, under the facts shown, that the letter in question was either misplaced in the grocery-store before the mail was carried to the post-office, or that it was lost while in transit thereto. Under this evidence the presumption referred to above never arose.

3. Moreover, where the presumption mentioned above does arise, it is rebuttable; and it is entirely overcome by the uneontradicted evidence of the addressee that the letter was never received by him, unless there is aliunde evidence that it was in fact received. Hamilton v. Stewart, supra; Cassel v. Randall, 10 Ga. App. 587,(73 S. E. 858); Parker v. Southern Ruralist Co., 15 Ga. App. 334 (83 S. E. 158); Lowenstein v. Johnston, 23 Ga. App. 261 (98 S. E. 111).

Decided March 3, 1920.

Action on guaranty; from Jasper superior court — Judge Park. November 10, 1919.

Hardeman, Jones, Park & Johnston, for plaintiff.

Greene F. Johnson, for defendants. .

(a) The mere fact that a return address is written upon the outside of the envelope, and that the letter was never returned to that address, does not within itself amount to such aliunde evidence. This ruling is not in conflict with the decision in Strauss v. Pearlman, 15 Ga. App. 86 (82 S. E. 578), or with that in Lowenstein v. Johnston, supra. In the Strauss case there were other aliunde circumstances besides the return address upon the envelope; and in the Lowenstein case there was no return address upon the envelope, but there were additional circumstances which tended to impeach the addressee's testimony that he had never received the letter.

4. Where a properly stamped and addressed letter has been mailed to a corporation, the presumption that it has been received is completely rebutted by undisputed testimony of an agent of the corporation, who has entire charge of all its correspondence, that the letter was never received; unless there is additional evidence which tends to impeach or discredit his testimony. Parker v. Southern Ruralist Co., supra.

5. Under the above rulings the evidence in this case demanded a finding that the letter in question had never been received by the plaintiff, and, accordingly, the verdict in favor of the defendant was unauthorized.

6. In view of the above holding it is considered unnecessary to pass upon the special grounds of the motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    11098.
    Scott v. Sanders.
   Broyles, C. J.

1. The common-law rule that where, through the negligent keeping of a hog by its owner, it strayed upon the land of another and injured his crops, it was a trespass fqr which the owner of the hog was answerable in damages, and the party injured might either impound the animal until his damages should be satisfied by the owner, or might bring an action for the trespass, is still of force in this State; and it is immaterial whether the stock law was of force in the county. The remedy given by the stock law in our code is not exclusive, but cumulative. Bonner v. DeLoach, 78 Ga. 50 (2 S. E. 546).

2. Under the above ruling the defendant in the instant ease had a right tp impound the hog until its owner had satisfied his damages. His possession, therefore, was lawful, and the owner of the hog could not recover it by a suit in trover.

Decided March 3, 1920.

Trover; from city court-of Dublin — Judge Elynt. November 17, 1919.

S. P. New, for plaintiff in error.

W. C. Davis, contra.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    11099.
    11100.
    Long v. The State. Payne v. The State.
   Broyles, C. J.

1. Bias or prejudice on the part of a judge does not disqualify him, in the absence of a statutory provision on the subject. 17 Am. & Eng. Enc. Law, 738; 23 Cyc. 582; Elliott v. Hipp, 134 Ga. 848 (68 S. E. 736, 137 Am. St. R. 272, 20 Ann. Cas. 423).

(a) The only statutory provisions in Georgia on the subject of the disqualification of a judge are in section 4642 of the Civil Code of 1910. Elliott v. Hipp, supra. In the instant case it follows that the court did not err in overruling the special plea which set up that the judge should disqualify himself, for the reason that he refused to allow the defendants, although charged with a misdemeanor only, to make bail; and further that he stated in his charge to the grand jury, and in the presence of the petit jurors, that he would take full responsibility for not allowing the defendants to make bail. Nor was this statement of the court violative of section 1058 of the Penal Code of 1910, which forbids the judge to express any opinion as to the facts. That section relates only to statements made during the actual trial of the case, or in the charge to the petit jury trying the case. White v. State, 7 Ga. App. 20 (65 S. E. 1073).

2. A motion for a continuance based upon the absence of witnesses is insufficient unless all of the provisions of section 917 of the Penal Code of 1910 (Civil Code, § 5715) are complied with; and where the trial judge refuses a continuance, this court will not interfere, unless the showing for a continuance has complied in every respect with the provisions of the statute. Wardlaw v. McConnell, 46 Ga. 273 (1); Hollingsworth v. State, 17 Ga. App. 725 (1) (88 S. E. 213), and cit.; McCain v. State, 17 Ga. App. 750 (88 S. E. 409) ; Belenbo v. Brooks, 17 Ga. App. 754 (88 S. E. 411).

[a) It is not error to deny an application for a continuance based upon . the absence of a witness, where the movant failed to show that the application was not made for the purpose of delay, although the showing in other respects was complete. Cobb v. State, 110 Ga. 314 (35 S. E. 178), and cit.; Aiken v. Carmichael, 127 Ga. 407 (56 S. E. 440).

(h) Upon the hearing of the defendants’ motion for a continuance, based-upon the absence of an alleged material witness, the movants failed to show that the application was made not for the purpose of delay, but to enable them to procure the testimony of the absent witness. This court, therefore, under the above rulings, has no authority to interfere with the discretion of the trial judge in denying the motion.

Decided March 3, 1920.

Accusations of possession of liquor; from Fannin superior court - - Judge Morris. November 1, 1919.

Application for certiorari was denied by the Supreme Court.

B. L. Smith, Clay & Giles, for plaintiffs in error.

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

3. The grounds of the motion for a new trial as to failure to charge the jury upon the law of circumstantial evidence do not show that the conviction of the defendants depend wholly upon circumstantial evidence, or that any timely written request for such a charge was given. These grounds, therefore, raise no question for determination by this court.

4. The verdict was authorized by the evidence, and it does not appear that the court erred in refusing the grant of a new trial .

Judgments affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11106.
    Marietta Mining Company v. Armstrong.
   Broyles, C. J.

1. Under repeated rulings of this court an assignment, of error upon the refusal of the court to award a nonsuit will hot be considered where the case proceeded to a verdict, and the defendant excepted to the overruling of the motion for a new trial, which included the ground that the verdict in favor of the plaintiff was contrary to the evidence and without evidence to support it.

2. “Where one wrongfully takes the personal property of another and converts the same to his own use in some other manner than by a sale, and does not receive any money therefor, the owner has a right of action ex delicto against such wrongdoer, and is restricted to this form of action. In such a case the tort can not be waived and an action ex contractu be brought, for the reason that, until the wrongdoer has received money to which the owner of the property is entitled, there can be no action for money had and received or upon an implied promise to pay money. Spencer v. Hewitt, 20 Ga. 426; Barlow v. Statworth, 27 Ga. 517. See also Reynolds v. Padgett, 94 Ga. 347 (21 S. E. 570); 40 Am. Law Reg. N. S. 50 et seq.” Cragg v. Arendale, 113 Ga. 181 (4) (38 S. E. 399). See also Woodruff v. Zaban, 133 Ga. 24 (65 S. E. 123, 134 Am. St. R. 186, 17 Ann. Cas. 974), and Southern Ry. Co. v. Roberson, 136 Ga. 146 (71 S. E. 129).

(a) The instant case was “an action of debt upon account,” and when the above principle of law is applied to its facts the verdict in favor of the plaintiff was contrary to law and the evidence, and the court erred in refusing to grant a new trial.

Decided March 3, 1920.

Appeal; from Cobb sujierior court — Judge Morris. October 6, 1919.

J. Z. Foster, for plaintiff in error.

H. B. Moss, contra.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    11107.
    Hill v. West, administratix, for use, etc.
    Decided March 3, 1920.
    Complaint; from Gilmer superior court — Judge Morris. October 14,1919.

      Thomas A. Brown, A. N. Edwards, for plaintiff in error.

      Clark Ray, William Butt, contra.
   Luke, J.

1. An assignment of error in the following words: “Because the court erred in failing to charge the jury on the subject of admission, and especially in failing to charge the jury that admissions when proven should be scanned with care,” without more, cannot be considered by this court, no reason being assigned why this charge should have been given. The attention of the court was not called to any part of the record which would require this charge, and no reason is assigned why a charge on the question of admission should have been given.

2. The newly discovered evidence was not sufficient to have authorized the granting- of a new trial. The evidence, though conflicting, authorized the verdict, which has the approval of the trial judge. Eor no reason assigned was it error to overrule the motion for a new trial.

Judgment affirmed.

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


text:
    11109.
    Long v. Hartford Fire Insurance Company.
    Decided March 3, 1920.
   Broyles, C. J.

1. There is no substantial merit in any of the special grounds of the motion for a new trial.

2. Under the rulings in Athens Mutual Insurance Co. v. Evans, 132 Ga. 703 (64 S. E. 993), the evidence in the instant case demanded a verdict in favor of the insurance company, and the court did not err in so directing. See also, in this connection, Lippman v. Ætna Insurance Co., 108 Ga. 391 (33 S. E. 897, 75 Am. St. R. 62) ; McAfee v. Dixie Fire Insurance Co., 18 Ga. App. 192 (89 S. E. 181).

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Action on fire-insurance policy; from Liberty superior court — Judge Sheppard. October 25, 1919.

After the issuance of the fire-insurance policy sued on, the insured executed a deed by which title to the insured house was conveyed as security for a debt. Subsequently the house was burned. The policy contained provisions identical with those set out in the decision in the case of Athens Mutual Insurance Co. v. Evans, supra. No written consent to the conveyance was given on the part of the insurance company, and the company contended that for this reason the policy was void. The court refused to allow the plaintiff to prove that after the conveyance was made he went to the agent who had issued the policy, and who was authorized to endorse thereon the defendant’s consent to the conveyance, and informed him orally of the making of the conveyance, and the agent said to him, “All right, go on home, I will take care of that; that is my part of the job;” and that to the best of his recollection the agent said that some time when he was passing through there he “would stop and take the policy and make the necessary endorsement on it.” This ruling was complained of in the motion for a new trial.

Oliver & Oliver, for plaintiff.

King & Spalding, Seabrook & Kennedy, for defendant.


text:
    11112.
    Monk v. Jackson.
    Decided March 3, 1920.
   Broyles, C. J.

1. The petition in trover, when legally construed, and as admitted by counsel for the plaintiff in error, was brought by the plaintiff in his own name, and yet it showed the title to the property sued for in another person, and failed to show any right of possession in the plaintiff. The petition was therefore fatally defective, and the court did not err in dismissing it on an oral motion by the defendant.

2. Although the bill of exceptions shows that before the motion to dismiss was made, the plaintiff introduced testimony tending to show a right of possession in him, and, further, that he had a special property right in the property sued for, the bill of exceptions and the record clearly show that no nonsuit was granted, but that the motion to dismiss the petition was made “ on account of fatal defects therein,” and that this motion was granted and the petition dismissed. It follows that this court can not consider the evidence introduced.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Trover; from city court of Tifton—Judge Price. November 13, 1919.

Ridgdill & Mitchell, for plaintiff.

Fulwood & Hargrett, for defendant.


text:
    11115.
    Headley v. Maxwell Motor Sales Corporation.
    Decided March 3, 1920.
    Action of slander; from Fulton superior court—■ Judge Pendleton. November 11, 1919.
    Application for certiorari ivas denied by the Supreme Court.

      Winfield Payne Jones, for plaintiff.

      Anderson, Rountree & Crenshaw, for defendant.
   Broyles, C. J.

1. “A corporation is not liable for damages resulting from the speaking of false, malicious, or defamatory words by one of its agents, even where in uttering such words the speaker -was acting for the benefit of the corporation and within the scope of the duties of his agency, unless it affirmatively appears that the agent was expressly directed or authorized by the corporation to speak the words in question.” Behre v. National Cash Register Co., 100 Ga. 213 (1) (27 S. E. 986); Ozborn v. Woolworth, 106 Ga. 459 (32 S. E. 581); Southern Ry. Co. v. Chambers, 126 Ga. 408 (4) (55 S. E. 37, 7 L. R. A. (N. S.) 926) ; Jackson v. Atlantic Coast Line R. Co., 8 Ga. App. 495 (69 S. E. 919).

(a) This principle of law has been so often reaffirmed by the Supreme Court that it is considered useless to grant the request of counsel for the plaintiff in error that the above-named eases be submitted to the Supreme Court for review' if this court should consider them controlling in the instant case.

2. Under the above ruling, and the' pleadings in the instant ease, the court did not err in sustaining the special demurrer to the petition, or, the plaintiff having refused to amend the petition to meet this demurrer, in thereafter dismissing the plaintiff’s case on motion of the defendant; since, with the elimination of that paragraph of the petition which was attacked by the special demurrer, the petition did not show' a cause of action.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11118.
    Independent Order of Puritans v. Cadden.
    Decided March 3, 1920.
    Action on insurance policy; from Fulton superior court — Judge Pendleton. September 29, 1919.

      Douglas & Douglas, for plaintiff in error.

      Little, Powell, Smith & Goldstein, contra.
   Broyles, C. J.

1. Where a party relies on the law of another State as furnishing the basis for a right of recovery or defense different from what it would be under the laws of this State, or the common law, the law of the foreign State should be pleaded and proved. Southern Express Co. v. Hanaw, 134 Ga. 445 (7), 458 (67 S. E. 944„ 137 Am. St. R. 227).

2. While the general rule is that where a policy is issued by a mutual' insurance or benefit insurance society, the insured becomes a member of the society, and must take notice of and be bound by its by-laws although they are not recited in the policy or expressly made a part thereof, yet where the terms of the policy are in conflict with a by-law of the Society, it having power under its charter to issue such a policy, the society must be deemed to have waived the provisions of the by-law in favor of the insured, and the policy will control the rights of the parties. Gienty v. Knights of Columbus, 199 N. Y. 103 (92 N. E. 111, 20 Ann. Cas. 928) ; McCoy v. Northwestern Mutual Relief Association, 92 Wis. 577 (66 N. W. 697, 47 L. R. A. 681); Davidson v. Old People’s Mutual Benefit Society, 39 Minn. 303 (39 N. W. 803) ; Morrison v. Wisconsin Odd Fellows Mutual Life Ins. Co., 59 Wis. 162 (18 N. W. 13); Union Mutual Fire Ins. Co. v. Keyser, 32 N. H. 313 (64 Am. D. 375); Fitzgerald v. Equitable Reserve Fund Life Association, 3 N. Y. Supp. 214; Failey v. Fee, 83 Md. 83 (34 Atl. 839, 32 L. R. A. 311, 55 Am. St. R. 326); Hale v. Equitable Aid Union, 168 Penn. 377 (31 Atl. 1066).

(a) In passing upon such a conflict the courts, in determining the rights of the parties, will adopt the provision that will give the greater right to the insured and his beneficiary. Supreme Tent etc. v. Volkert, 25 Ind. App. 627 (57 N. E. 203).

3. Under the above rulings and the facts of the instant case, the judge, sitting without a jury, properly resolved the conflict between the certificate of membership issued by the society and its by-laws in favor of the former, and did not err in rendering- jridgment for the plaintiff for the full amount of the policy and interest thereon.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11121.
    Thompson v. Asa G. Candler Inc. et al.

   Broyles, C. J.

1. Under all the facts of the case the court did not err in excluding the documentary evidence offered by the plaintiff.

2. The evidence adduced by the plaintiff failed to prove as against any of the defendants any act of negligence as alleged in the petition as amended. The court therefore properly awarded a nonsuit.

Decided March 3, 1920.

Action fox damages; from city court of Atlanta—■ Judge Reid. October 21, 1919.

Mark Bolding, J. Caleb Clarke, for plaintiff.

Candler, Thomson & Hirsch, Roy Lewis, for defendant.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11129.
    Kelley v. Ramey.
    Decided March 3, 1920.
   Broyles, C. J.

1. “It being legally possible for the owner of realty to sell and convey it to another at an agreed cash price, and at the same time secure the right to repurchase, and become bound so to do, at a higher price payable in the future, the law will enforce such a transaction when actually made.” Felton v. Grier, 109 Ga., 320 (35 S. E. 175).

2. “Though the transaction now under review in many respects very closely resembled a mere loan of money at a usurious rate of interest, secured by a deed to land, yet as there was direct and positive' evidence warranting the special findings of fact to the effect that it was a bona fide case of bargain and sale with a contemporaneous agreement by the vendee to resell to the vendor, and a binding contract 'by the latter to repurchase, the verdict must be allowed to stand.” Felton v. Grier, supra.

3. Whether a deed was taken as security for a debt, or, together with a contemporaneous writing, evidenced a sale with option to repurchase, was a question for the jury. Brown v. Bonds, 125 Ga. 833, 837 (54 S. E. 933).

4. Whether a given transaction was a bona fide sale of property with the right to repurchase, or whether it was a ruse designed to avoid the usury laws and to take security for the loan of money at a usurious rate of interest, is a question of fact to be determined by the jury. Rogers v. Blouenstein, 124 Ga. 501 (52 S. E. 617, 3 L. R. A. (N. S.) 213).

5. The burden of affirmatively showing usury in a transaction is upon the party pleading it; and the mere circumstance that the profit of the other party to the transaction was equivalent to more than the lawful rate of interest per annum on the capital invested would not necessarily show that the transaction was a loan of money and not a sale. Fulwood v. Leitch, 7 Ga. App. 360 (66 S. E. 987).

6. When the principles of law stated above are applied to the facts of this ease, a verdict for the defendant was authorized, and, the findings of the jury having been approved by the judge, this court is without authority to interfere.

Judgment affirmed.

Luke and Bloodworth, JJ., eonour.

Complaint; from Kabun superior court—Judge J. B. Jones. November 10, 1919.

R. C. Ramey, McMillan & Erwin, for plaintiff.

Thad. L. Bynum, for defendant.


text:
    11141.
    Thompson v. The State.
    Decided March 3, 1920.
    Indictment for burglary; from Franklin superior court •— Judge W. L. Hodges. November 29, 1919.

      W. B. Sloan, for plaintiff in error.

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

1. Under the ruling made in Childers v. State, 52 Ga. 106, and repeatedly approved and followed by the Supreme Court and this court, a defendant in a felony ease can not be lawfully convicted on the testimony of an accomplice unless that testimony is corroborated by other evidence which in itself,. and independently of the testimony of the accomplice, directly connects the defendant with the crime, or leads to the inference that he is guilty. Stokes v. State, 19 Ga. App. 235 (91 S. E. 271), and cit.

2. Slight evidence corroborating the testimony of an accomplice may be sufficient to authorize the jury to find the accused guilty, and the sufficiency or weight of the corroborating evidence is a question solely for them; and where there is any evidence which in itself and independently of the accomplice’s testimony directly connects the defendant with the crime or raises an inference of his guilt, the finding of the jury (if approved by the judge), that the testimony of the accomplice was sufficiently corroborated, will not be set aside by this court. Brown v. State, 18 Ga. App. 288 (89 S. E. 342), and cit. However, in a case where the record discloses no evidence lohalever that in itself and independently of the testimony of the accomplice directly connects the defendant with the crime or raises an inference of his guilt, the finding of the jury that the testimony of the accomplice was sufficiently corroborated is, as a matter of law, unauthorized, and the judgment refusing a new trial will be reversed.

3. Under the above rulings and the facts of the instant case, the court erred in overruling the defendant’s motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    11156.
    Newberry v. The State.
    Decided March 3, 1920.
    Indictment for burglary; from Marion superior court —Judge Howard. November 7, 1919.

      W. B. Short, George P. Munro, for plaintiff in error.

      C. F. McLaughlin, solicitor-general, contra.
   Broyles, C. J.

1. It does not appear that the judge abused his discretion in overruling the defendant’s motion for a continuance, based upon the absence of a witness. Upon the hearing of the motion it appeared that the defendant had previously obtained one or two continuances of the case because of the absence of witnesses; and, further, in the state of the record, it does not appear that the testimony of the absent witness was material.

2. Under the ruling in Mitchell v. State, 71 Ga. 128 (4 a-b), the court did not err in admitting the testimony of a witness as to what another witness (since deceased) swore on the defendant’s commitment trial, the witness stating that he remembered the substance of the deceased witness’s testimony as given on that trial.

3. “ ‘It is not a matter of right for the accused to make a second statement to the court and jury because the State has introduced additional evidence which strengthens the case against him.’ Boston v. State, 94 Ga. 590 (21 S. E. 603); Knox v. State, 112 Ga. 373 (37 S. E. 416). Whether he should be allowed to supplement his first statement with another is discretionary with the trial court. Dixon v. State, 116 Ga. 186 (42 S. E. 357).” Williams v. State, 138 Ga. 825 (76 S. E. 347). .Under this ruling and the facts of the instant case it does not appear that the judge abused his discretion in refusing to allow the defendant to make a second statement.

4. There is no substantial merit in that ground of the motion for a new trial which complains that the court erred in allowing a witness to testify as follows: “Yes, I know William Henry Parks, I know his general character, I would say it is above the average negro; from his character I would believe him in a>court of justice;” the ground of objection being that the “testimony was not within the statutory provisions.”

5. The charge of the court was full and fair, and substantially covered the law of the case. If more particular instructions upon any feature of the case were desired by the defendant, a timely and appropriate written request therefor should have been tendered.

6. The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., eonewr.


text:
    11170.
    Davis v. The State.
    Decided March 3, 1920.
    Rehearing denied April 13, 1920.
    Indictment for car-breaking; from Fulton superior court—Judge Ilumpliries. November 15, 1919.
    Application for certiorari was denied by tlxo Supreme Court.

      Len B. Guillebeau, for plaintiff in error.

      John A. Boykin, solicitor-general, E. A. Stephens, contra.
   Broyles, C. J.

1. The amendment to the motion for a new trial, not having been argued in the brief of counsel for the plaintiff in'error, is treated as abandoned.

2. There was evidence which authorized the jury to find that the accused had made a free and voluntary confession of his guilt; and other corroborative evidence which, together with his confession, authorized his conviction.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11174.
    Pitts v. The State.
    Decided March 3, 1920.
    Indictment for assault witli intent to rape; from Floyd superior court — Judge Wright. November 14, 1919.
    Under an indictment charging assault with intent to rape, the defendant was convicted of an assault. A witness for the State testified that the defendant was “apparently 13 or 14 years of ag'e;” also that he was “14 or 15 years old.” Another witness testified that she knew when he was born, and that he was only 12 years old. It was testified that the girl upon whom it was alleged the assault was committed was 12 years old. She testified: “After I had left school and gone up and through town and just gotten by the depot at Cave Spring and some hundred yards by the depot,-this boy was tying a cow which he had been holding, picking grass, and got down behind a pile of coal at the railroad tracks and stuck his head up and said to me, ‘Here, give me some. When I saw him behind the coal I started to run down the path, the way I was going home, an 1 he started to run after me, and I said T see daddy/ thinking he would stop, and lie ran after me through, the field. I showed father how far he went. Tony Pitts ran after me, and I looked back and he was gaining on me, and he did not stop until I screamed. There were stores in sight of the place, and people walk along in the path in which I was walking, almost all times through the day. After leaving the place where this occurred, in order to go to my home you go through the woods to where I live. I have often seen this boy minding the cow he had this day. He lives near where he had the cow and just on the edge of town, but I live on out in the country from town.” It was testified that this witness showed where the defendant ran her through the field, and that the distance was 187 yards. The defendant, in his statement at the trial, said: "I was minding the cow the day this happened, and then went and tied her. After I did this I then ran on down to the path and stalled on home in the path, and this little girl saw me and got to crying and ran on off. I did not know what was the matter with her, but she went on towards her home and I went on home and never knew anything further until they arrested me. I never thought of hurting the little girl.” There was no further testimony as to what was done by the defendant at the time referred to.
   Luke, J.

The evidence in this case was sufficient to authorize the conviction of the accused, and, the verdict having been approved by the trial judge, this court will not interfere. The judgment overruling the motion for a now trial is

Affirmed.

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

M. B. Mebane, for plaintiff in error, cited Dorsey v. State, 108 Ga. 477.

C. H. Porter, solicitor-general, E. S. Taylor, contra,

cited: Duggan v. State, 116 Ga. 846; Jackson v. State, 322, 329.


text:
    11186.
    Stanford v. The State.
    Decided March 3, 1920.
    Conviction of manslaughter; from Warren superior court — Judge Walker. November 28, 1919.
   Broyles, C. J.

1. The excerpts from the charge of the court, complained of, when considered in the light of the entire charge, and of the facts of the case, contain no reversible error.

2. Under repeated rulings of the Supreme Court and of this ’ court, a general exception to the entire charge of the court is too broad to he considered, unless the whole charge was erroneous.

3. The verdict was amply authorized by the evidence, and the court did not err.in overruling the motion for a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ.; concur.

Application for certiorari was denied by the Supreme Court.

M. L. Felts, for plaintiff in error.

R. C. Norman, solicitor-general, contra.


text:
    11205.
    Green v. The State.
    Decided March 3, 1920.
    Accusation of carrying concealed weapon, etc.; from city court of Macon — Judge Guerry. November 22, 1919.

      Olin J. Wimberly, Gillon & Churchwell, for plaintiff in error.

      Will Gunn, solicitor, contra.
   Broyles, C. J.

The evidence authorized the defendant’s conviction under both counts of the indictment, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11290.
    Loyd v. The State.
    Decided March 3, 1920.
    Motion to change venue; from Bleckley superior court — Judge Graham. January 22, 1920.

      John R. Cooper, C. A. Weddington, for plaintiff in error.

      W. A. Wooten, solicitor-general, contra.
   Luke, J.

1. It has been repeatedly held by this court and the Supreme Court that where the evidence is conflicting upon the hearing of a motion to change the venue in a criminal ease, the discretion of the trial judge in overruling the motion will not be controlled, unless it is made to appear that there has been an abuse of his discretion. In this case no abuse of the court’s discretion is manifest.

2. No constitutional question is properly raised by the 5th ground of the motion to change the venue.

Judgment affirmed.

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


author: BLOODWORTH, J.

text:
    11092.
    Mathews et al. v. Green.
    Decided March 4, 1920.
    Affidavit of illegality; from city court of Statesboro — Judge Proctor. October 17, 1919.
   BLOODWORTH, J.

The affidavit of illegality in this case was properly dismissed.

Judgment affirmed.

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

R. Lee Moore, Brannen, Booth & Cowart, for plaintiffs in error.

Anderson & Jones, contra.


text:
    11105.
    Atlantic Coast Line Railroad Co. v. Grantham.
    Decided March 4, 1920.
    Certiorari; from Chatham superior court'—■ Judge Meldrim. October 20,1919.
    Osborne, Lawrence & Abrahams, F. R. Youngblood, for plaintiff in error.

      H. P. Cobb, contra.
   Bloodworth, J.

This is the first grant of a new trial to the defendant in error, and the verdict not being demanded, under the unbroken precedents of the Supreme Court and of this court the judgment granting the new trial can not be disturbed. See Central of Georgia Ry. Co. v. Macon Ry. & Light Co., 20 Ga. App. 548 (93 S. E. 17), and citations.

Judgment affirmed..

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


text:
    11126.
    DOOLEY, administrator, v. WILBANKS.
    Decided March 4, 1920.
    All agreements to pay in specifics being presumed to be made in favor of the debtor,' he has the option of paying either in specifics or in money amounting to the value of the specifics; and ordinarily this value will be their market value at the time of the maturity of the obligation. However, where it appears from the agreement that it was the intent of the parties thereto that the debt should be paid in specifics on the basis of a certain fixed money value thereof, irrespective of their market value on the date of the maturity of the obligation. then the debtor has the right to pay, in lieu of the specific articles called for, their money value on the basis fixed in the agreement.
    Complaint; from Habersham superior court — Judge J. B. Jones. October 4, 1919.
    Application for certiorari was denied by the Supreme Court.

      Homer Sutton, John J. & Roy M. Strickland, P. Cooley, for plaintiffs.

      J. J. & Sam Kimzey, for defendants.
   Broyles, C. J.

J. H. Wilbanks, the defendant in this case, on September 24, 1912, entered into an option contract with G. W. and J. C. Dooley to. buy from the latter a certain farm containing 332 acres of land, wherein the vendors agreed to sell the land at $17 per acre if all cash was paid at the time of the purchase, or for one hundred and eighty 500-pound bales, of good white merchantable cotton to be paid as follows: 15 bales in the year, of th<' contract and 15 bales per year thereafter for eleven years. The contract provided that “in case party of the second part don’t raise the cotton on the farm, then party of the second part shall have the privilege to pay cash on the basis of 10 cent per .pound cotton for the amount of the 15 bales.” It was further provided in the contract that if Wilbanks bought the land for cotton, he should pay $500 cash ($50 of which had been paid to secure the option), and that “$500 is to be equal to 10 bales of cotton, and is to be considered as 10 bales of cotton.” It was also agreed that Wilbanks had the right and privilege to pay as much cotton in any year as he desired, until all of the debt was paid, and that he was to give one note for 5 bales of cotton to be delivered the first year, and. 11 notes for 15 bales each. In pursuance of this contract Wilbanks, on November 25, 1912, gave a series of notes for the purchase-money, of the land, and in each of them he promised to pay to the plaintiffs a specified number of 500-pound bales ,of cotton “based on 10 cents per pound, regardless of the market price on date of delivery” (italics ours). Each note recited that it was “given for the purchase-money of certain land in accordance with the contract between G. W. Dooley and J. C. Dooley and J.. H. Wilbanks, dated September 24, 1912”, and that it was “secured by a mortgage dated this day, given by said Wilbanks.” And the record shows that Wilbanks, on November 25,-1912, executed a security deed (referred to in the notes as a mortgage) to G. W. Dooley and 0. W. & W. A. Savage, covering 308 acres of the land in question (it appearing that when the land was surveyed it was found that the tract consisted of 308 acres instead of 332 acres). The security deed contained the following provisions: “This conveyance is made for the following purpose and none other: Said J. H. Wilbanks is indebted to the said G. W. Dooley'and C. W. & W. A. Savage in the sum of 167 bales and 130 pounds of good white merchantable cotton, based on 10 cents per pound, regardless of market price or prices on date of delivery (italics ours), each of said above 167 bales of cotton to weigh 500 pounds each, with interest at the rate of 8% per annum after maturity, based on said cotton at 10 cents per pound. This mortgage-note is given for the purchase-money in accordance with the contract between G. W. Dooley and J. C. Dooley and J. H. Wilbanks, dated September 24, 1912, and by agreement of all parties C. W. & W. A. Savage have taken the place of J. C. Dooley in said contract. . . The consideration of this mortgage, to wit, 167 bales and 130 pounds of good white merchantable cotton, based on 10 cents per pound, is hereby credited with 14 bales weighing 500 pounds each and 130 pounds of good white merchantable cotton, based on 10 cents per pound, the receipt whereof is hereby acknowledged.”

The plaintiff brought suit on three of the notes signed by Wilbanks, and alleged that the latter had failed and refused to deliver the cotton on the dates for delivery specified in the notes, and that cotton on said dates was worth approximately 30 cents per pound, and he asked for damages for a breach of the contract, on the basis of that value.

Upon the trial the undisputed evidence showed that the defendant, at the maturity of the notes, tendered to the plaintiff, in cash, the value of the cotton, based upon 10 cents per pound, and that the tender was declined by the plaintiff, who demanded a settlement on the basis of the then market value of the cotton,—which was approximately 30 cents per pound. After the evidence was all in, each party requested the court to direct a verdict in accordance with his contentions, and the court, agreeing with the contentions of the defendant, directed a verdict for the plaintiff for $1,100 only (the exact amount which had been tendered by the defendant in settlement of the three notes sued on), with interest thereon from the date of the maturity of the obligations; and the costs of the suit were taxed against the plaintiff.

We think that the judge properly construed the option contract, and the notes and security deed given in pursuance thereof, as constituting one single contract, and that he correctly held that this contract and the undisputed evidence adduced upon the trial showed that it was the intent of the parties that the value of all cotton to be delivered by the defendant should be fixed at 10 cents per pound, regardless of its market value at the date of the maturity of the obligations. Under all the facts of the case it appears that this is the just and fair construction of the contract. See, in this connection, Sims v. Cox, 40 Ga. 77. It is true that in that case the purchaser of the land expressly guaranteed that the cotton would be worth 16% cents per pound to the vendor when delivered, and in the instant case there is no guarantee, in so many words, that the cotton would be worth 10 cents per pound to the vendor of the land when delivered to him. We think, however, that under all the facts of the case there was virtually and in effect such a guarantee, and that it was manifestly the intention of the parties, as shown by the language in the option contract and in the notes and the security deed, that all the cotton received by the vendor of the land should be of the value of 10 cents per pound, irrespective of its then actual market price. As throwing light upon the intent of the parties and how they regarded the contract, the undisputed evidence upon the trial showed that in some years when cotton was worth less than 10 cents per pound, the defendant delivered cotton to the vendor and paid him, in addition thereto, sufficient money to bring the value of the cotton up to 10 cents per pound. It is not clear, however, from the record, whether or not these money payments were made because of a failure by the defendant in those years to grow upon the land the stipulated number of bales of cotton (15) which were to be delivered each year, but there is a fair inference from the evidence that the money payments were not made for that reason, but to carry out the virtual agreement of the parties that all cotton delivered should be of the value of 10 cents per pound.

All agreements to pay in specifies are presumed to be made in favor of the debtor, who may pay in specifics, or in lieu thereof he may pay the amount of the debt in money, amounting to the value of the specifics at the date of the maturity of the obligation, at the place where it was payable, if a specific place was mentioned in the note, and if no specific place was mentioned, then at the place where the note was executed, with lawful interest thereon. Civil Code (1910), §§ 4270, 4271. Where it appears, however, from the agreement, that it was the intent of the parties thereto that the debt should be paid in specifics on the basis of a certain fixed money value thereof, irrespective of their market value at the date of the maturity of the obligation, then the debtor can at his option pay the money value of the specific articles called for oh the basis fixed in the agreement. Sims v. Cox, supra.

The construction placed upon the covenants of a contract by the parties thereto, as shown by their acts and conduct, is entitled to much weight, and may be conclusive upon them. Candler v. Georgia Theatre Co., 148 Ga. 188 (5) (96 S. E. 226, L. R. A. 1918, F, 389).

It is unnecessary to decide whether or not the court erred in allowing interest on the principal sum, as this part of the directed verdict is not excepted to by either party.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11173.
    HUGGINS v. THE STATE.
    1. There is no proper assignment of error upon either the forfeiture of the defendant’s bond, or the alleged improper bringing of the defendant into court. These matters, therefore, can not be passed upon.
    2. Where a motion is made to continue a criminal case upon the ground that the accused is physically unable to attend court, and upon this question the testimony' of the physicians introduced as witnesses is conflicting, the discretion of the trial judge in overruling the motion will not be controlled.
    3. While a judgment of a court of competent jurisdiction is conclusive between the parties and their privies as to the issue which it decides (Civil Code of 1910, § 4335), it is not so as to third persons. Mays v. Compton, 13 Ga. 269; Russell v. Slaton, 25 Ga. 193; Hart v. Manson, 119 Ga. 865 (4) (47 S. E. 345).

      (а) Erom this ruling it follows that where a verdict and judgment of the superior court in a criminal case are pleaded as a bar to the prosecution in that court of another criminal case, the plea is insufficient in law, and should be stricken on general demurrer, or on oral motion, where it appears that both prosecutions were not against the same defendant.
    (б) In the instant case the defendant was charged with having, controlling and possessing intoxicating liquors. He filed a plea in bar, in which he set up that at a previous term of the court his wife had been indicted, convicted and sentenced for having, controlling and possessing the same liquors at the same time and place. The plea further alleged that upon the wife’s trial the evidence for the State showed that she had the exclusive possession and control of the liquors. Upon oral motion of the State the judge struck the plea. Held-. The plea was properly stricken. See, in this connection, in addition to the cases cited above, Duncan v. State, 149 Ga. 195 (99 S. E. 612) ; 12 Cyc. 277 (8) ; 16 C. J. 257 (§ 421).
    4. Under repeated rulings of the Supreme Court and of this court, where a ground of a motion for a new trial is based upon the alleged erroneous admission of documentary evidence, such evidence must be set forth, either literally or in substance, in the ground itself, or attached thereto as an exhibit. In the instant case the documentary evidence admitted over the objections of the defendant, was a certified copy of an indictment and sentence of the United States court for the northern district of Georgia, but this evidence was not attached as an exhibit to the ground of the motion for a new trial which complained of its admission, nor was it set forth therein either literally or in substance. The ground fails to show even the name of the person who was indicted and sentenced in the United States court. Under these circumstances the ground is too defective to be considered by this court.
    Decided March 4, 1920.
    Rehearing denied April 13, 1920.
    5. The excerpt from the charge of the court excepted to was not erroneous for any reason assigned.
    6. The defendant’s conviction was amply authorized by the evidence, and the court did not err in overruling the motion for a new trial.
    Indictment ior possession of liquor; from Cobb superior court — Judge Morris. November 29, 1919.

      H. B. Moss, Clay & Giles, for plaintiff in error.

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

Under the somewhat peculiar facts of this case

an elaboration of the 1st and 2d headnotes is thought advisable. The record shows the following undisputed facts: The defendant was under indictment for a misdemeanor and was out on bail. His trial was set for November 25, 1919, of the November term of the superior court of Cobb county. When the case was called on that day he did not appear, and his counsel moved for a continuance, based upon the illness of the accused. The motion was supported by the following affidavit: “Georgia, Cobb County. I, j. W. Ellis, do swear that I am a practicing physician, and says that he attended on Burt Huggins [the defendant], that I visited him to-day and found him confined to his bed, suffering with orchitis; he is not able to attend court this week. J. W. Ellis, M. D. Sworn to and subscribed before me this Nov. 24, 1919. B. V. Greer, J. P., Cobb County, Georgia.”

The court overruled the motion for a continuance, declared the defendant’s bond forfeited (the judge certifies that the defendant had forfeited his bond in this case at a former term of the court), and directed the sheriff to have the defendant brought into court, if, in the sheriff’s opinion, he was able to come. The sheriff sent two officers to the defendant’s home, where he was found, up and fully dressed, except that his coat was off. The defendant was brought from his home in an automobile and confined in the jail in Marietta, but during the journey the party stopped at the town of Kennesaw, where the defendant was allowed to consult with his physician (the Doctor Ellis who signed the certificate in support of the motion for a continuance). Upon the following day the defendant was brought into court and the hearing of the motion for a continuance was resumed. Two or more physicians testified as to his physical condition, and the defendant testified in his own behalf in support of the motion.

There was a sharp conflict in the testimony of the physicians as to whether the defendant was able to stand the strain of his trial and to.properly advise with his counsel. After the counter-showing by the State, the court overruled the defendant’s motion for a continuance and signed a formal order forfeiting the defendant’s bond, and to these rulings the defendant excepted. He also excepted to the alleged improper bringing of the defendant into court. These exceptions were preserved pendente lite. The pendente lite exceptions contained, in addition to these three exceptions, one other, to wit, an exception to the overruling of the defendant’s special plea.

1. The main bill of exceptions contains no assignment of error upon the exceptions pendente lite as a whole, and error is assigned therein only upon the judgments refusing a continuance and overruling the special plea; nor did counsel for the plaintiff in error, before the beginning of the argument in this court, request permission to assign error in the main bill of exceptions upon the exceptions pendente lite as a whole, or upon the forfeiture of the bond, or upon the alleged improper bringing of the accused into court. Under these circumstances the only assignments of error in the pendente lite exceptions which can be considered by this court are those upon the refusal of the continuance and upon the overruling of the defendant’s special plea.

2. We think it clear that the court was not required, in the absence of the defendant, to accept, as conclusive evidence of his physical inability to attend court, the physician’s affidavit presented. ’ “Even if a motion to continue a criminal case can properly be entertained in the absence of the accused, the judge is not required to do so. If the absence is due to providential cause, this will be a suffieent answer to the rule nisi on a forfeiture of the bond.” Oglesby v. State, 121 Ga. 602 (9) (49 S. E. 706). See also, in this connection, Frain v. State, 40 Ga. 530, in which it was held that upon a motion for a continuance the certificate of a physician is not good evidence of a fact necessary to be proven. In the case at bar it seems that the judge did not finally overrule the motion for a continuance which was grounded upon the physician’s certificate, but that he merely held, in effect, that this showing alone was insufficient and unsatisfactory, and that the hearing of the continuance was postponed until the following day when the defendant had been brought into court. Conceding, but not deciding, that the forfeiture of the bond and the manner in which the defendant was brought into court were irregular, these irregularities had no direct bearing upon the merits of the motion for a continuance. As stated above, there was no valid assignment of error either upon the forfeiture of the bond or upon the alleged improper bringing of the defendant into court, and, therefore, no questions are raised in this connection for our consideration. However, it is well settled by many decisions of the Supreme Court that the improper bringing of a defendant in a criminal case into court is not cause for a new trial.

“Where the accused is in court and offers no sufficient reason for a postponement of the trial of his case, and the trial is in all respects legal and regular, it will not be ground for a new trial that he was improperly brought into court under an order of the judge.” McDaniel v. State, 103 Ga. 268 (2) (30 S. E. 29). In that ease it was held, inferentially, that the defendant’s remedy was to move for a release from custody. We do not consider it amiss, however, to say, in passing, that we think it would have been much better if the court had sent a physician along with the sheriff to the defendant’s residence, with instruction to examine the defendant as to his physical condition, instead of leaving this matter to be determined by the sheriff, who, the record discloses, was not a physician.

In the instant case, after the defendant. had been brought into court, the evidence of the medical experts introduced was in sharp conflict upon the question of whether his physical condition was such as to enable him to stand his trial and to properly advise with his counsel as to his defense. In the McDaniel case, supra, the motion for a continuance was upon the same ground as in this case, and in that case the Supreme Court, among other things, said: “The evidence of the physicians as to whether the accused was in a condition to bear the strain of the trial, and intelligently confer with his counsel during the same, was conflicting. The court overruled the motion for a continuance. Throughout the trial the accused lay upon a cot or lounge, except when .making his statement to the jury; being then helped to rise and sit in a chair. . .

All applications for a continuance are addressed to the sound discretion of the trial judge. Penal Code [of 1895], § 966. Especially is this true in regard to eases like the one under consideration. The trial judge had before him the testimony of physicians, presumably of good character, professionally and otherwise, who had examined the accused and given their opinion upon his mental condition, and his ability to stand the strain of the trial. They did not agree among themselves.. To .aid. him in settling the conflict in the testimony of these expert witnesses,, the trial judge had before him the person of the accused. It may be, and probably was, the result of this trial by inspection which brought about the decision adverse to the motion to continue. In such cases the good sense, sound judgment, and humanity of the trial judge, must be relied upon as safe guards against injustice. We can not say, under all the circumstances of the case, that there was any abuse of discretion in refusing the continuance. Cox v. State, 64 Ga. 374, 402.” This ruling was approved and followed in Oglesby v. State, supra; Rawlins v. State, 124 Ga. 31 (52 S. E. 1); Rowland v. State, 125 Ga. 792 (54 S. E. 694); Higgs v. State, 145 Ga. 414 (89 S. E. 361), and in many other decisions of the Supreme Court.

Under the above rulings and the facts of this case, it does not appear that the trial judge abused his discretion in overruling the motion for a continuance.

3. The other lieadnotes do not require elaboration.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Jenkins, P. J.

text:
    10709.
    Bateman v. Macon National Bank et al.

   Jenkins, P. J.

The terms of the act creating the municipal court of Macon by which it is provided (Ga. L. 1913, p. 258, § 20) that “suits shall be filed in the clerk’s office of said court at least fifteen days before the first day of the term to which it is returnable,” and that all cases which on the call are marked in default shall be “ripe for trial and judgment,” have reference only to civil cases brought by ordinary petition, and do not pertain to attachment eases. Davis v. Williams, 148 Ga. 705 (98 S. E. 338). In such a case the provisions of section 15 of the act are applicable, by which it is provided that such a proceeding is to be returned and disposed of under the rules pertaining to the superior or justice’s courts, as the case may be. Thus, where a judgment by default in the sum of $300 was rendered at the first term against a non-resident defendant in attachment and against - the garnishee in attachment, the judge of the municipal court did not err in proceeding on his own motion, during the same term, to vacate and set them aside. The quoted provisions of section 20 of the act not being applicable, final judgment could not legally be rendered in such a case until the second term (Lambert Hoisting Engine Co. v. Bray. 117 Ga. 4, 43 S. E. 371), and then could be rendered only on proof being made. Fincher v. Stanley Electric Mfg. Co., 127 Ga. 362 (56 S. E. 440).

Decided March 11, 1920.

Certiorari; from Bibb superior court — Judge Mathews. May 21, 1919.

Feagin & Hancock, for plaintiff in error.

Miller & Jones, contra.

Judgment affirmed.

Stephens and Smith, JJ., concur.