text:
    9866, 9867.
    Central of Georgia Railway Company v. Swift & Company; and vice versa.

   Jenkins, J.

1. Where one of two or more joint tort-feasors has been sued for and compelled to satisfy damages arising from a jointly tortious transaction, hé can not, as a general rule, maintain an action either for contribution or indemnity over against those connected with him in the tort; but if the liability of the tort-feasor in the originalV suit arises merely from negative acts of omission on his part, such as a failure in his duty to inspect, and the proximate cause of the injury, so far as the joint tort-feasors are concerned, lay in active, positive acts of negligence on the part of the other tort-feasor, in which the original defendant did not in any way participate, then an exception to the general rule would exist. Central Ry. Co. v. Macon Ry. &c. Co. 140 Ga. 309 (78 S, E. 931).

2. A railroad company brought suit for indemnification against a company operating an oil-mill, to recover the amount of a judgment paid by the railroad company for the homicide of one of its own employees, whose death was occasioned by the operation of its train of ears along a private track maintained by it to the-.oil-mill, and under a dangerously low shed maintained by the oil-mill company over said track at the oil-mill. The allegations of negligence set out against the railroad company in the tenth and also in the eleventh paragraphs of the original suit, such as were not disproved by it in the present proceeding, were to the effect that at the time of the homicide the railroad company had full and' actual knowledge that the shed ivas so dangerously low as to constitute a menace to its operatives; that, notwithstanding such ■ knowledge) it failed in its duty to warn the decedent of his peril, and proceeded to operate its train under said shed on a dark and rainy night without having in any way provided lights “to indicate the presence of the shed,” so that the decedent might have avoided the peril to which he was unknowingly exposed by the operation of said cars. The ease was tried by agreement before the judge of the superior court without a jury, and judgment was rendered for the defendant. Held:

’(a) Under the facts of the case, the general rule above stated, rather than the exception indicated, would have application. The act of the railroad company in thus voluntarily operating its train along said' private track and under said shed, and in such undisproved negligent manner, did not amount tounere legal, passive acquiescence in the negligence of the oil-mill company in maintaining the shed in a dangerous condition, but such active, positive, and negligent conduct on the part of the railroad company itself amounted to an actual participation by it in the proximate cause of the homicid'e.

Decided January 29, 1919.

Rehearing denied February 11, 1919.

Action for damages; from Fulton superior court—Judge Bell. May 3, 1918.

Little, Powell, Smith & Goldstein, for plaintiff.

Smith, Hammond & Smith, for defendants.

(6) It is unnecessary to decide the question raised by the cross-bill of exceptions.

Judgment affirmed on main bill of exceptionsj cross-bill dismissed.

Wade, G. J., and hulee, J., concur.


source: Caselaw Access Project

author: Jenkins, J.

license: Public Domain

text:
    9871.
    ATLANTA & WEST POINT RAILROAD CO. v. MILLER.
    Decided January 29, 1919.
    1, 2, 7. The trial judge having repeatedly charged and the plaintiff’s counsel having admitted in open coui-t at the trial that the plaintiff could not recover,if at the time her husband was killed by the cars of the railroad company he was not at the public crossing as alleged, the jury could not have understood' the judge to mean the contrary by any of the instructions complained, of.
    3. Failure to give a certain instruction to the jury in connection with an instruction given which was correct in itself can not be taken advantage of by excepting to the instruction given.
    4. The admission of testimony the admissibility of which was doubtful but which could not have been materially harmful will not require a new trial.
    5. Failure to give requested instructions to the jury in the precise language requested is not cause for a new trial where specific instructions to the same effect are given. ,■

    6. It not appearing by affidavit of the movant for a new trial and of each of the counsel for the movant that they did not before the trial know of the existence of the alleged newly discovered evidence, and that it could not have been discovered by the exercise of ordinary diligence on their part, the judgment refusing a new trial will not be reversed because of that evidence.
    8. Refusal to give certain requested instructions as to what would constitute negligence was not error, that being peculiarly a question for the jury.
    9. The instruction complained of as to the method of computation in reducing the gross earning capacity of a decedent to its present worth was harmless.
    Action for damages; from Troup superior court—Judge Terrell. April 10, 1918. . ‘

      The plaintiff sought to recover the value of the life of her hus-' band, who it was alleged was killed by the negligent operation of the defendant company’s cars at and upon a public crossing in the city of LaGrange. It was admitted by her counsel upon the trial that if the deceased was not upon the public crossing at the time he was killed," she could not recover. The defendant denied liability, and contended that it was not negligent; that the deceased was not in the street when killed, but was some distance therefrom, in the yards of the defendant, on the track and leaning against the end of the car which ran over him, engaged in a conversation; and that his death was the result of his own negligent conduct. The jury returned a verdict in favor of the plaintiff, for $2,000. The defendant excepts to the refusal of a -motion for a new trial.

      Brewster, Howell & Heyman, A, H. Thompson, for plaintiff in error.

      Harvey Hill, Arminius Wright, Hatton Lovejoy, contra.
   Jenkins, J.

(After stating the foregoing facts.) The motion for a new trial assigns error upon the following excerpt from the charge of the court: “There was no legal duty upon the part of the defendant to place a watchman either on the street-crossing or on the box-car which struck the deceased, if you believe that the deceased was not in the street-and using it as a passageway, so far as relates to him, unless you find that failure to have been negligent upon the part -of the defendant company.” While the language of the charge may be just here somewhat confused, we do not think that the excerpt, when considered in connection with the entire charge, constitutes harmful error and could properly require the grant of a new trial. That the jury could have been misled by the language of this isolated excerpt to the extent óf believing that the defendant could be negligent in not having a watchman at the street or on the car, regardless of where the deceased was, or what he was doing at the time of the homicide, does not seem reasonably possible, in view of the plain and repeated instructions to the jury wherein the court stated to the contrary. At one point the judge charged as follows: “If you should believe that the deceased was killed at some other place than a public crossing, if you believe from the evidence that the deceased was killed at a point not a public crossing, then you need hot investigate further, but return a verdict for the defendant.”. And again, “So, gentlemen, you may consider the instructions I have given you, if you find from the evidence deceased was killed at a public crossing. But if you find from the evidence that he was not killed at a public crossing, that would end your investigation, and you would return a verdict in favor of the railroad company.”

Error is assigned on the following excerpt from the charge of the court: “It is contended by the plaintiff that the defendant ‘was further negligent in that its servants kept no proper lookout ahead, and that no brakeman or lookout was stationed on its cars, or on the car which struck the deceased. I charge you, that in looking to all the evidence, the circumstances, the scene of the homicide and all of the surroundings, it is a question for you to determine as to whether or not ordinary care and prudence required that the defendant railroad company should have kept some one constantly on the. lookout in front of its moving train, to warn passers-by of danger, and whether or not a failure so to do was negligence upon the part of the defendant company. You may or may not determine that ordinary care and prudence on the part of the railroad company required -this, or that the failure so to do constituted negligence on its part. But, if you should determine that ordinary care and diligence so required, and that the failure so to provide some one on the constant watch and lookout was negligence, and that such negligence contributed to or was the cause resulting in the homicide of the deceased, and that at the time, by the exercise of ordinary care and prudence upon his part, he could not have prevented the homicide, then that would make such a case as would authorize a recovery upon the part of this plaintiff.” The error assigned is not that these instructions are not abstractly correct, but that they were not applicable to the case being tried, without being properly limited, in that the jury would be authorized thereunder to find for the plaintiff even though the deceased was at some place other than a public crossing at the time he' was killed, or, if upon the crossing, was not using it as such. With this contention, however, we can not agree. It was contended by the plaintiff that her husband was killed while attempting to cross the- defendant’s tracks at a public crossing,' and that the defendant was negligent in not -having some one' on the lookout to warn him of the approaching cars. It was admitted in open court, and the judge repeatedly charged, that unless he was killed on the public crossing, she could not recover. The charge as quoted instructs the jury that it is for them to determine whether, or not a failure on the part of the defendant to keep some one constantly on the lookout inffront of its moving train to warn passersby of danger, was negligence upon the part of the defendant. In giving this charge the court instructed the jury that they were to look to all the evidence, the circumstances, the scene of the homicide, and all the surroundings, and, as stated, repeatedly instructed them that the plaintiff could in no event recover if her husband was not killed upon the public crossing, and at one point the court specifically instructed them that the defendant owed no legal duty to him to place a watchman either on the street-crossing or on the car which struck him, if they should believe that he was not in the street and using it as a passageway. The charge as given was applicable to the plaintiff’s contention, and we do not think that the jury could possibly have given it the construction placed thereon by counsel for the defendant.

A charge embracing an abstractly correct principle of law applicable to the case is not rendered erroneous merely because of the failure of the court to charge some other and further legal and pertinent principle of law in connection therewith. Macon Railway &c. Co. v. Barnes, 121 Ga. 443 (3) (49 S. E. 282); Smith v. Brinson, 145 Ga. 406 (2) (89 S. E. 363); Killian v. State, 19 Ga. App. 750 (92 S. E. 227). The third ground of the amendment to the motion for a new trial comes within this general rule, and is therefore without merit.

The admission of the evidence complained of in ground 4 was of doubtful propriety, but could not have been materially harmful to the defendant, and therefore can not afford a proper reason for setting aside the verdict and judgment.

Error is assigned upon the refusal of the court to charge as follows: “A railroad track is a place of danger, and every one who goes on a railroad track is chargeable with knowledge- of that fact, that it is a place of danger, and is under legal duty to exercise ordinary care to protect himself from injury by the operation by the railroad of cars and engines thereon. So, under the law in this case, the husband of plaintiff was required to exercise ordinary care not to be injured when he went on the track of the defendant, whether he was on the public street or not. Even if under the evidence you should believe the place where the husband of the plaintiff was killed was on the public street, that would not excuse him from exercising ordinary care to avoid being injured.” Specific instructions to the same effect were given and the principle of law here involved was fully and repeatedly covered by the court in its charge to the jury. The court charged: “Under the law in this case, the husband of the plaintiff was required to exercise ordinary care not to be injured, when he went on the track of the defendant, whether he was on the 'public street or not. Even if, under the evidence, you should believe that the place where the husband of the plaintiff was killed was in the public street, that would not excuse him from exercising ordinary care. He would still be under the duty of exercising ordinary care not to be.injured.” Furthermore, in five or six other portions of the charge the court instructed the jury that the deceased was required to exercise ordinary care not to be injured, and that if he was killed by reason of his failure to exercise such care, the plaintiff could not recover. While the language used in the first part of the requested charge, —“A railroad track is-a place of danger, and every one who goes on a railroad track is chargeable with knowledge of that fact, that it. is a place of danger, and is under legal duty to exercise ordinary care to protect himself from injury by the operation by the railroad of cars and engines thereon,”—embodies a sound principle of law (Western & Atlantic R. Co. v. Ferguson, 113 Ga. 708, 713, 39 S. E. 306, 54 L. R. A. 802), the failure to charge in the precise language requested is not cause for a new trial, where it appears that the principle involved was sufficiently covered by the general instructions given. Cosby v. Reid, 21 Ga. App. 604 (2) (94 S. E. 824), and eases cited. Tt may be 'that in the opinion of the trial judge the particular language quoted above, though embodying correct principles of law, forcibly stated, would nevertheless, if embodied in the charge, have appeared argumentative, and that for this reason he preferred to make a different statement of the same rules.

Ground 6 of the motion for a new trial being based upon newly discovered evidence, and it not appearing “by affidavit of the movant and each of his counsel that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence,” the judginent refusing the motion for a new trial on this ground will not be disturbed. Civil Code (1910), § 6086; Pharr v. Davis, 133 Ga. 759 (66 S. E. 917); Southern Fertilizer &c. Co. v. Carter, 21 Ga. App. 282 (25), 284 (94 S. E. 310).

Error is assigned on the following instructions: “If the injury occurred at a place where the public was accustomed at all times to pass over and across the tracks of the defendant railroad company with knowledge and consent of the railroad company, and if this fact is shown to have been known by the agent or servant in charge of the engine or cars which killed the deceased, then the servant or agent in charge of the engine or cars which struck and killed the deceased owed him the duty to exercise ordinary and reasonable care, to anticipate and discover his presence on the track, and ordinary care and diligence to prevent an injury to his person after discovery. . . Then the company owed to the deceased, if he was at that point,' not only to exercise ordinary care not to injure him after his presence on the track became known, but also to anticipate his presence and to take such' measures as ordinary care would require to prevent injury to him in the event he was present. . . . Was this at a place constantly used by the public as a point of crossing the track, with the knowledge and consent of the defendant company, and was this fact known to the agent of the defendant-company in charge of the engine or cars which killed the deceased? •Was this a public crossing? These are questions for you to answer, and unless these questions can be answered in the affirmative, then the defendant company would owe the deceased no duty'until his presence and peril became known to the servant and agent in charge of approaching locomotive or cars.” As has already been stated, counsel for the plaintiff admitted upon the trial that if the deceased was not killed while upon the public crossing as alleged in the petition, there would be no liability upon the part of the defendant, and the plaintiff could not recover. Upon the trial no question was raised as to whether the street upon which the plaintiff claimed her husband was killed was in fact a public crossing, and the issue as to whether it was a public street is not involved. This being true, any inaccuracy in defining a public street, if there was such inaccuracy, could not have been harmful to the defendant. The contention of counsel for the defendant, that the charge as given permitted the jury to find in favor of the plaintiff if her husband, at the time he was killed, was not on the public crossing as alleged, is not well founded, for the court further charged the jury, in the same connection, as follows: “So, gentlemen, you may consider the instructions I have given you, if you find from the evidence deceased was killed at a public crossing. But if you find from the evidence that he was not killed at a public crossing, that would end your investigation, and you would return a verdict in favor of the railroad company.” Moreover, if a more full and complete definition of a “public street” was desired, a timely and appropriate written request should have been presented.

Negligence being péculiarly a question for the jury, there is no merit in the exception taken in ground 8 of the motion for a new trial) relative to the request to charge. Civil Code (1910), § 4863; Southern Railway Co. v. Grizzle, 131 Ga. 887 (3), 888 (68 S. E. 177).

The excerpt from the charge complained of in ground 9 of the motion, relative to the method of computation in reducing the gross earning capacity of a decedent to its present worth,.is com ceded by counsel for both plaintiff and defendant to have furnished no rule or guide by which the amount of the particular verdict or a verdict in any amount could have been arrived at, and it must therefore necessarily be taken as meaningless and harmless. In other portions of the charge the rule relative to this subject-matter was correctly stated. Florida Central &c. R. Co. v. Burney, 98 Ga. 1 (86 S. E. 730).

Judgment affirmed.

Wade, C. J., and Luke, J., concur.


author: Wade, C. J.

text:
    9876.
    Huson v. Dawson Naval Stores & Lumber Co., et al.

   Wade, C. J.

This suit was based upon a contract authorizing the plaintiff to effect a sale of land for the defendant, the Dawson Naval Stores and Lumber Company, to one Moulton, upon specified terms as to payment, so that it would net to the owner $3.50 per acre, and to retain as compensation for this service all obtained' for it in excess of that amount. The contract fixed December 20, 1913, as the time limit within which the plaintiff should “make, complete, and execute the aforesaid sale.” The plaintiff on December 17, 1913, effected with Moulton an agreement of sale which provided that the owner should make, execute, and deliver bond for titles to Moulton, and that Moulton should “make, execute, and deliver to the first party [Dawson Naval Stores and Lumber Company] notes and mortgages as aforesaid', within thirty days from delivery of abstracts of title to the party of the second part.” Meld, that there was a clear variance between the contract effected by the plaintiff and that which he was authorized to make, the time for completion of the sale being extended by him beyond December 20, the time fixed by the owner of the property; and the owner had the right to repudiate the contract, as there was no acceptance “on the terms stipulated by the owner.” Park’s Ann. Code, § 3587; Robinson v. Weller, 81 Ga, 704 (8 S. E. 447); Phinizy v. Bush, 129 Ga. 479 (4) (59 S. E. 259); Van Winkle v. Harris, 137 Ga. 43 (72 S. E. 424) ; Gray v, Lynn, 139 Ga. 294 (77 S. E. 156). Neither was there such acceptance by the owner or such ratification of the changes made as would, amount to a legal waiver of the variance between the terms authorized and the terms ' agreed upon. The trial judge therefore did not err in sustaining a general demurrer to the plaintiff’s petition.

Decided January 29, 1919.

Complaint; from Terrell superior court —Judge Worrill. May 80, 1918.

W. H. Gurr, Pottle & Hofmayer, for plaintiff.

M. C. Edwards, Yeomans & Wilkinson, for defendant.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9880.
    Meritas Mills v. Way.
   Jenkins, J.

1. The plaintiff’s amendment to the tenth paragraph of her petition, made at the trial court, was not such as materially to change the cause of action, and thus open the whole petition to demurrer at that time; nor did the court err in overruling the demurrer to that paragraph as amended.

2. “Except in ease of railroad companies, the master is not liable to one servant for injuries arising from the negligence or misconduct of other servants about the same business” (Civil Code of 1910, § 3120), nor is the master liable for injuries to a servant resulting from the negligence of the servant himself. Civil Code (1910), §§ 3131, 4426; Butler v. Atlanta Buggy Co., 10 Ga. App. 175 (73 S. E. 25) ; Wing v. Savannah Guano Co., 17 Ga. App. 534 (87 S. E. 827). It necessarily follows, that the master is not liable for injuries resulting to a servant from the concurrent negligence of the plaintiff himself and a fellow-servant. The court therefore erred in charging the jury that “if the plaintiff was injured as alleged, and her injury,—that is, the breaking of her arm— the consequent injury to her—damage to her—was caused by the negligence of the fellow-servant and the negligence also of the plaintiff, then the plaintiff would be entitled to recover.” Although in other and different portions of the charge the judge correctly instructed the jury upon the questions here involved, he did not undertake to correct th« erroneous charge above quoted, and a new trial must be granted. Sea Central of Georgia Ry. Co. v. Deas, 22 Ga. App. 425 (3), 427-8 (90 . S. E. 267).

Decided January 29, 1919.

Action for damages; from city court of Columbus—Judge Tigner. June 4, 1918.

Battle & Hollis, for plaintiff in error.

Ed. Wohlwender, Hatcher & Hatcher, contra.

3. There was some evidence to authorize a verdict in favor of the plaintiff, though it did not require such a verdict. The requests to charge set out in grounds 2, 3, 4, 5, and 9 of the amendment to the motion for a new trial were, so far as legal and pertinent, sufficiently covered by the charge given; grounds 1, 6, 7, and 8, assigning error upon certain .excerpts from the charge of the court, even though in some degree slightly inaccurate, are without substantial merit, when considered in connection with the context and the entire charge, as is also ground' 10, which complains of the admission of certain testimony.

Judgment reversed.

Wade, C. J., and Luke, J., concur.


text:
    9909.
    Clanton v. Rowan.
    Decided January 29, 1919.
    Certiorari; from Berrien superior court—Judge Thomas. May 4, 1918.

      W. D. Buie,.for plaintiff in error. C. A. Christian, contra.
   Jenkins, J.

1. The reasonable and necessary construction of the petition is that the proceeding was one to require the removal of an obstruction from a private way acquired by seven years uninterrupted use through improved lands. Hopkins v. Roach, 127 Ga. 153 (56 S. E. 303). The ruling made in Johnson v. Williams, 138 Ga. 853 (2) (76 S. E. 380), is therefore not applicable.

2. The petition set forth a cause of action. There was evidence sustaining the allegations as made. There was no demurrer challenging the legal sufficiency of the plaintiff’s averments relative to the nature and character of the alleged obstruction. It was therefore not improper to try the case upon the issue thus made by the allegations of the petition and the denial thereof by the answer. Southern Railway Co. v. Barfield, 115 Ga. 724 (42 S. E. 95).

Judgment affirmed.

Wade, C. J., and Luke, J., concur.


author: Broyles, P. J. Broyles, P. J.

text:
    9634.
    WASHINGTON EXCHANGE BANK v. SMITH.
    Decided February 1,
    Adhered to on rehearing, February 27, 1919.
    1. An objection that a deed offered in evidence was “inadmissible” was too general and indefinite.
    2. A provision in a promissory note held by a bank, which was secured by a deed to tbe bank, that, “any excess of security upon this note shall be applicable to any other note or claim held by said bank, against me,” was not, without more, sufficient to show that the parties intended that the deed should secure also the payment of a note held by the bank which was made by the same person before the execution of the first mentioned note.
    3. A formal tender of payment of the $3,000 ,note was in effect waived by the statement on the part of the plaintiff, when the defendant offered to pay that note, that the amount due thereon would' not be accepted unless the amount due on the $447 note was also paid; and the plaintiff was not entitled to recover interest from that time on the $5,000 note.
    4. The judgment in favor of the plaintiff is too general, in that'it does not specify the amount due on the $5,000-note. Direction is given that the judgment be so amended as to cure this defect.
    (Certiorari granted by the Supreme Court.)
    Complaint; from Wilkes superior court-r-Judge Walker. November 20,1917.

      Colley & Colley, for plaintiff. I. T. Irvin Jr., for defendant.
   Broyles, P. J.

This court can not say that the admission in evidence of the deed from B. M. Smith to Sallie L. G. Smith was error. The only objection made at the time -of its admission was that it was “inadmissible.” This objection was too general and indefinite. Some specific ground or reason why it was inadmissible should have been stated.

Hnder the agreed statement of facts, the court, passing by consent upon all questions both of law and fact, did not err in finding and adjudging that the $5,000 note was the only note sued on which was secured by deed, and that the $447 note was not so secured. The deed in question which secured the $5,000 note was executed prior to the execution of the $447 note. The $447 note was, however, executed prior to the .execution of the $5,000 note, and was held by the plaintiff bank at the time of'the, making of the latter note. The $5,000 note did not- specifically refer to the $447 note (both notes being executed by the same person), but contained the following provision: “And it is hereby agreed and understood that any excess of security upon this note shall be applicable to any other note or claim held by said bank against me”. No parol evidence 'was introduced to show that the $447 -note was secured by the deed given to secure the $5,000 note, or that this was the intention of the parties, and the language just, quoted from the $5,000 note was insufficient in itself to establish such fact. .

The court erred in finding that the defendant made a legal tender of the amount due on the $5,000 note. The agreed statement of facts clearly shows that no such tender was ever made. -This error, however, was harmless to the plaintiff, as the undisputed evidence showed that the plaintiff stated to the defendant, when the latter offered to pay the $5,000 note, that it would not accept the amount due on the $5,000 note unless the amount due on the $447 note was also paid. “A formal tender is unnecessary, where express declarations are made by the party to whom money is payable that he will not accept it if tendered. The law takes one who makes such a statement at his word, and does not thereafter require the doing of a vain thing.” Arnold v. Empire Life Insurance Co., 3 Ga. App. 685 (5), 708 (60 S. E. 470); Southern Life Insurance Co. v. Logan, 9 Ga. App. 503 (2), 507, 508 (71 S. E. 742); McLeod v. Hendry, 126 Ga. 167 (2), 171 (54 S. E. 949); Irwin v. Askew, 74 Ga. 581 (4). Under the facts of the instant case a tender by the defendant would have been “a mere idle and useless ceremony”, and it was therefore unnecessary.

(a) The plaintiff was entitled to recover the amount of the principal due on.the $5,000 note, with accrued interest thereon to the date of its refusal to accept payment of such note and interest from the defendant.

The judgment is too general, in that it does not specifically designate the amount due the plaintiff on the $5,000 note. The court below is directed to amend its judgment to cure this defect.

Judgment affirmed, with direction.

Bloodworth and Stephens, JJ., concur.

ON REHEARING.

Broyles, P. J.

In our judgment the principle of law stated in Gray v. Angier, 62 Ga. 596, that “a tender, to prevent the running of interest, must be continuing,” is not applicable in a case where no legal tender was ever made. In the instant case, as decided by this court, no legal tender was made; but the evidence authorized a finding that a boná fide offer to pay the $5,000 note was made by the debtor to his creditor on March 14, 1917, that the former really intended and was able to make the payment, and that this offer was rejected by the creditor on the following day. Under these circumstances the creditor was not entitled to interest on the note after the latter date, to wit, March 15, 1917. “Where a debtor is really and bona fide ready to make payment and intends to do so, but is prevented from so doing by the act or omission of his creditor, the latter will not be entitled to interest.” 15 R. C. L. 33, § 30; Hart v. Brand, 10 Am. 715 (A. K. Marsh, (Ky.) 159): “If the failure to make payment of the principal debt is due to any improper act of the creditor, or to such conduct on his part as prevents the debtor from complying with his contract to pay, interest on such debt is generally suspended during the time the debtor is so prevented from making payment.” 33 Cyc. 1554, § 3, note 93.

Judgment adhered to.

Bloodworth and Stephens, JJ., concur.


author: Stephens, J.

text:
    9729.
    Boyd v. Newton County.
    Decided February 1, 1919.
    Trover; from Newton superior court—Judge Smith. April 17, 1918.

      Rogers & Knox, for plaintiff in error. King & Johnson, contra.
   Stephens, J.

1. Timber when felled, cut, and stacked into cord-wood becomes.personalty, and does not pass as a part of tbe realty upon the sale of the land upon which it lies. When, therefore, the owner of land, who was the owner of forty-three cords of wood stacked thereon, sold said land and made to the purchaser a warranty deed conveying the land, the title to said wood did not thereby pass to such purchaser. There being no evidence of any contract of the sale of said wood, the title to the same remained in the vendor of the land, and he could recover such wood from the purchaser of the land by an action in trover.

2. The court did not err in ruling out evidence that, there wgs a tenant house on the place. Even if such evidence authorized the inference that at the time of the execution of the deed to said land it was occupied by a tenant having the right to cut and gather fire-wood, it did not negative the positive and uncontradicted testimony that the title to the particular wood in question was at the time of said sale in the plaintiff.

3. The trial judge did not err in directing a verdict for the plaintiff.

4. The, prayer of the defendant in error for the allowance of damages against the plaintiff in error for- bringing this case to this court for the purpose of delay, as contended by defendant in error, is denied.

Judgment affirmed.

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


author: Broyles, P. J. Stephens, J.,

text:
    9744.
    CHAPMAN v. THE STATE.
    Decided February 1, 1919.
    While ordinarily it is reversible error for a trial judge, in charging the jury or during the trial, to express or intimate within the hearing of the jury his opinion as to what has or has not been proved (Civil Code, § 4863; Penal Code, § 1058), such expression or intimation of opinion is not a violation of the statute when it occurs while the judge is discussing with counsel the admissibility of testimony, the propriety of a nonsuit, the discharge of a defendant for the lack of evidence to convict, the direction of a verdict, or similar matters in the progress of the trial, or is explaining to counsel, his rulings upon questions of this-nature. Especially is this true where the party complaining of such expression is the one who invoked the ruling that occasioned it.
    Accusation of larceny; from city court of Jefferson—Judge Mahaffey. March 23, 1918.

      Ray & Ray, for plaintiff in error. S. J. Nix, solicitor, contra.
   Broyles, P. J.

The defendant was charged with the larceny of one bushel of corn in the shuck, the property of the prosecutor, O. P. Aiken. Hpon the trial the undisputed testimony of a witness for the State showed that he caught the defendant in the prosecutor’s-corn-field, about nine of ten o’clock at night; that he saw the defendant break off more than a bushel of ears of corn and put them in a sack. The undisputed testimony of the prosecutor, Aiken, was that the stolen corn was his. He further testified that he rented from W. H. Smith, the land upon which the corn was grown, and that Smith was to get half of the corn raised thereon, for the rent of the land, but that it was his (Aiken’s) corn until it was made and gathered. It clearly appears from the record and a fair inference therefrom that, when Aiken had given this testimony, counsel for the defendant made a motion that the defendant be discharged, or that a verdict of acquittal be directed, or some similar motion, on the ground that the evidence of Aiken showed that a-half of the ' corn belonged to Smith, his landlord, and that therefore the allegations in the accusation as to the ownership of the stolen property were not sustained by the proof. The judge, in passing upon this motion, and denying it, said: “I will have to rule this is Mr. Aiken’s corn, under the testimony.” This language was excepted to -by the defendant as an expression of opinion to the jury on a material issue in the case, in violation of section 1058. of the Penal Code. „

We do not think the provisions of that section apply to the facts of the instant ease. In Croom v. State, 90 Ga. 430 (17 S. E. 1003), the third headnote is as follows: “Generally what the court says in stating to counsel the reason for denying a motion to exclude or rule out evidence is, if pertinent to the 'question raised by counsel, not error, although the reason given involve a statement as to certain testimony which is already in, or as to there' being nothing in evidence showing that the circumstances are as the counsel claim.” In Really Company v. Ellis, 4 Ga. App. 402 (61 S. E. 832), the 6th headnote is as follows: “It is not reversible error, under section ,4334 of the Civil Code [of 1895; Code of 1910, § 4863], for the judge, in discussing with counsel the admissibility of testimony, the propriety of a nonsuit, the direction of a verdict, or similar matters in the progress of the trial, or in explaining his rulings upon questions of this nature, to refer to the evidence or to the statements of witnesses, provided he does-not go out of the line of legitimate discussion upon the point presented or use such language as to indicate apparent or actual judicial approval or disparagement of any witness or of any part of the testimony.” In Jones v. Pope, 7 Ga. App. 538 (67 S. E. 280), this court said: “A trial judge can state his reasons for admitting or refusing to admit evidence, if such reasons are pertinent to the objections to evidence and the ruling made thereon, and this statement does not constitute such an expression of opinion as is violative of section 4334 of the Civil Code.” In Louisville & Nashville R. Co. v. Tift, 100 Ga. 86 (27 S. E. 765), the Supreme Court held, that in overruling a motion to nonsuit, the judge may within appropriate limits state in the hearing of the jury his reasons for his decision. See also, to the same effect, Wyley v. Stanford, 22 Ga. 397 (3); Reinhart v. Miller, 22 Ga. 403 (10) (68 Am, D. 506); Milner v. State, 30 Ga. 137 (3), 139; Perry v. Butt, 14 Ga. 699 (2), 705; Scarborough v. State, 46 Ga. 26, 33; Claflin v. Continental Jersey Works, 85 Ga. 28 (6) (11 S. E. 721); Florida Cen. &c. R. Co. v. Lucas, 110 Ga. 121 (2), 124 (35 S. E. 283); Brown v. State, 119 Ga. 572 (46 S. E. 833); Hall v. State, 7 Ga. App. 115 (5), 119 (66 S. E. 390). In the Scarborough case Judge McCay said (p. 33) : “It would be impossible to carry on a trial if this section of the Code, prohibiting a judge from expressing any opinion as to what is proven, is to be construed as is contended for. A judge, in deciding as to admissibility of testimony/ must always, to some extent, decide as to its weight, since often its admissibility depends on that, so he must often determine what has been proven so as to say whether certain other things may be proven. To decide a non-suit he must, decide if there be enough proven-to justify a verdict, etc. The only practicable rule is, to treat the jury as possessed of common sense, and as capable of understanding what is addressed by the judge to them and what is not. He may not. express to the jury any opinion; but if in the decision of any legal question, as it arises, he must pass upon facts, the statute does not apply. It must be reasonably construed.” (Italics ours.)

In Oliveros v. State, 120 Ga. 237 (47 S. E. 627, 1 Ann. Cas. 114), Simmons, C. J., said: “Expression of opinion as to the weight of evidence may or may not be error, according to the circumstances under which the opinion is expressed; but even where error, it need not be a violation of the Civil Code, § 4334. Again, speaking for myself, I think this court has given this section too broad and liberal a construction. It was doubtless enacted to correct a custom .of the judges which had descended-to them from the common-law courts of England and this country, but which the legislature, thought was a usurpation of the functions of the jury. Whether this be true or not, we all think that when an objection is made to evidence offered, the judge has a right, if he deems proper, to give the reasons for his decision on the objections; and such reasons so given, if pertinent to the objections made, do not constitute such an expression of opinion as to violate the code section above cited.” (Italics ours.) Moreover, it has been held that even where the expression of the judged opinion occurs during his charge .to the jury this does not necessarily require the grant of a new trial. In Southern Insurance & Trust Co. v. Lewis, 42 Ga. 587, which was a suit on an insurance policy, the judge charged the jury that, in his opinion, the plaintiff had an insurable 'interest in the policy, and the Supreme 'Court, while stating that this was improper and that the judge ought to have called the attention of the jury to the facts and then said to them, “if you believe,” etc., “then, in the opinion of the court, under the law, you will find that he had an insurable interest,” nevertheless ruled that under the facts of the ease—the ease being clearly made out—this error was not sufficient ground for a reversal of the judgment. In Dexter Banking Co. v. McCook, 7 Ga. App. 436 (67 S. E. 113), this court held that “where a particular fact is established by uncontradieted evidence, it is not error for the judge to assume or intimate that the fact has been proved.” This ruling in the Dexter case was approved in Deen v. Wheeler, 7 Ga. App. 507, 517 (67 S. E. 212).

The undisputed evidence in the instant case showed that the relation of landlord and tenant existed between the prosecutor, Aiken, and W. H. Smith, the owner of the land cultivated by Aiken aisd. upon which the stolen corn was grown, and that Aiken was the tenant. It was further undisputedly shown that at the time of the larceny the corn had not been gathered, but was in the shuck and upon the stalks in the field. It followed, therefore, as a matter of law, that the title to the corn was in Aiken and not in Smith. Teel v. State, 7 Ga. App. 600 (67 S. E. 699). Clearly, therefore, the contention of the defendant’s counsel, made to the trial judge during the progress of the case, that the defendant could not be legally convicted, since the proof of the ownership of the stolen property did not correspond with the allegations of ownership in the accusation, and his motion that the defendant be discharged, or that a verdict be directed in his favor, or some other motion of the same import, was without merit and was properly denied by the judge. In passing upon this motion, and in stating his reasons for his ruling thereon, the judge necessarily had to pass upon the evidence which had” been introduced, and to express his opinion thereon, and, under the authorities above cited, the case falls within the exception stated in the headnote.

Moreover, aside from the precedents cited, the 'particular facts of this case show that the granting of a new trial would be a mere idle and useless ceremony and of no benefit whatever to the accused, since no other verdict than the one returned is legally possible on another trial. The defendant introduced no evidence and made no statement; no exception to the charge of the court, as to errors, either of omission or commission, was made;,no exception to any ruling of the court upon the admission or exclusion of evidence was made; the undisputed evidence showed that the defendant was caught in the very act of the larceny charged, and that he made a free and voluntary confession of his guilt. No other verdict than the one rendered could possibly have-been reached by the jury. The statement of the court, complained of, did not, therefore, prejudice or injure the cause of the defendant.. We do not believe it was the. legislative intent in enacting the statute; now codified in the'Section cited above, to make iti provisions apply to such a case.

Judgment affirmed.

Bloodworth, J., concurs.

Stephens, J.,

dissenting.

This was a conviction for simple larceny, the accusation alleging that the property stolen was one bushel of corn in the shuck, of the value of $2, and the property of O. P. Aiken. The evidence of Mr. Aiken was: “It was my corn. It was my corn until it was made and gathered. Part of the corn was Mr. Smith’s. . . He was to get part of the crop. He was to get one half of it.” 'Hpon a ruling upon a. motion made by defendant’s counsel the trial judge, in the presence of the jury, remarked, “I will have to rule this is Mr. Aiken’s corn, under this testimony.”

Section 1058 of the Penal Code of 1910, codified from what is commonly called the “dumb act,” says: “It is error for the judge of the superior court, in any case, during its progress, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved, or as to the guilt of the accused; and a violation of the provisions of this section shall be held by the Supreme Court to be error, and the decision in such ease reversed, and a new trial granted, with such directions as the Supreme Court may lawfully give.” This applies to trials in the city court of Jefferson (Acts 1903, p. 138). It is made mandatory on the Court of Appeals to grant a new trial when the trial judge expressed his opinion on the facts. This rule is not altered merely because the fact stated as proved by the trial judge stands uncontradicted by testimony. The truth or falsity of the. .alleged fact is put in issue by the defendant’s plea of-not guilty, which plea is a denial of each and every allegation in the indictment against him. He is presumed to be innocent, and this presumption remains with him throughout the trial and until after the rendition of a verdict against him. His plea of “not guilty” and this presumption of innocence continue throughout the entire trial to challenge and deny the case of the State as alleged in the indictment and made in the evidence. Where there is no admission in judicib, the uncontradicted evidence of the State is thus denied and an issue of fact is made.

-It was a violation of this section of the code for the trial, judge to state, in the presence of the jury, that this statement of a witness, uncontradicted by the testimony, was true. He went “outside of the limits of legitimate discussion upon the point presented [and used] such language as to indicate . . actual judicial approval ... of . . part of the testimony.” Realty Co. v. Ellis 4 Ga. App. 403, cited in the majority opinion. In Cooper v. State, 3 Ga. App. 730 (69 S. E. 30), it was held that “A plea of not guilty, by one accused of crime, is an express contention on his part antagonistic to every fact necessary to be proved by the State in order to establish his guilt; and unless the accused admits one or more of the facts which it devolves upon the State to prove, such fact must be' established by evidence. To assume that an important fact in the case on trial has been admitted, and to so instruct the jury when no such admission has been made, is reversible error.” Also, in the case of Southern Express Co. v. State, 1 Ga. App. 700 (5) (58 S. E. 67), the court said: “To assume in a criminal case that the testimony for the State is the truth, though such testimony be not contradicted by evidence for the defendant, and to charge the jury that such testimony is the truth-and that there is no contention to the contrary, is violative of section 4334 of the Civil Code [of 1895, supra], and" demands a new trial. The plea of not guilty, filed by the defendant, is a contention on his part, as to every material and essential fact necessary to establish his guilt, and implies a denial of every such fact.”

Although the evidence demands a verdict of guilty, the law commands that it be set, aside. The trial judge should have kept dumb as the statute requires. It was not at all essential to his ruling upon the motion made by counsel for defendant for him to express himself on the facts as he did. We are enjoined in mandatory terms to set this conviction aside. Mandatory statutes must be obeyed, not evaded.


author: Bloodworth, J. Stephens, J.,

text:
    9752.
    Ransom v. The State.
   Bloodworth, J.

1. In the motion for a new trial it is complained that the court erred in admitting in evidence certain dying declarations, the objections urged being that “there was not sufficient foundation laid for the admission of a dying statement, because the State has failed to prove that the deceased was in a dying condition and because the statement is hearsay.” There is no merit in the objection that “the statement is hearsay.” That “dying declarations constitute one of the exceptions to the rule which rejects hearsay evidence” is clearly announced in Mitchell v. State, 71 Ga. 128 (2). The ground of objection, that “the State has failed to prove that the deceased was in a .dying condition,” is not complete. In order to ascertain what evidence was introduced in' connection with these declarations, and thus determine 'whether they are admissible, if is necessary to refer to the brief of evidence. “Under repeated rulings of this court and of the Supreme Court, a ground of a motion for a new trial must he complete in itself. When it is so incomplete as to require this court to refer to the pleadings or to the brief of the evidence, it will not be considered.” Bridges v. Griffin, 20 Ga. App. 599 (93 S. E. 1703. See also Southern Ry. Co. v. Williams, 19 Ga. App. 544 (4) (91 S. E. 1001), and cases cited. .

Decided February 1, 1919.

Conviction tor manslaughter; from Dooly superior court—Judge Crum. April 23, 1918.

John R. Cooper, for plaintiff in error.

J. B. Wall, solicitor-general, Jesse Grantham, contra.

2. Under the qualifying notes of the trial judge, there is no merit in grounds 2 and 4 of the amendment to the motion for a new trial.

3. No error harmful to the defendant was committed in admitting in .evidence the testimony of Hattie King, complained of in the 3d special ground of the motion for a new trial.

4. When considered in the light of the entire charge of the court and of all the evidence, there is no error harmful ’to the defendant in the excerpts from the charge embodied in the 5th, 6th, 7th, 11th, 12th, 13th, 14th, and 15th grounds of the amendment to the motion for a new trial.

5. The evidence authorized the charge on voluntary manslaughter, and the court did not err in charging thereon as complained of in the 8th, 9th and 10th grounds of the motion for a new trial.

6. There is evidence to support the verdict, and the judgment is Affirmed.

Broyles, P. J., and Stephens J., concur.

Stephens, J.,

concurring specially.

Generally hearsay evidence is inadmissible. A ground of a motion for new trial which sets out the evidence admitted and alleges that its admission was excepted to “because the statement is hearsay” is, in my opinion, a complete ground within itself. This is not altered by the fact that such evidence may have been offered as a dying declaration and as an exception to the hearsay rule. None of the assignments of error being meritorious, I concur in the judgment of. affirmance.


text:
    9808.
    SCOGGINS v. THE STATE.
    Decided February 1, 1919.
    1. A new trial was not required by the instruction of the court to the jury to the effect that where a witness has been “successfully” impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case, it is the duty of the jury “to disregard his testimony altogether;” the judge immediately adding: “but whether a witness has been so successfully impeached or not, and what credit you will give to the testimony of each and every witness, is a matter entirely for you as jurors to determine.”
    2-3. The evidence was sufficient to authorize the conviction of -voluntary manslaughter, and the court did not err in overruling the motion for a new trial.
    Conviction of manslaughter; from Floyd superior court—Judge Wright. May 10, 1918.

      M. B. Eubanks, W. H. Ennis, for plaintiff in error.

      C. H. Porter, solicitor-general, W. B. Mebane, E. S. Taylor, contra.
   Broyles, P. J.

The following, excerpt from the charge of the court is complained of: ' “ A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case; and where a witness has been so successfully impeached, it is your duty to disregard his testimony altogether.” Standing alone this excerpt is error, as the jury have the right to determine for themselves the credibility of a witness, even if they find he has been “successfully” impeached. Civil Code (1910), § 5884. When, however, this excerpt is considered with its immediate context, it does not- require a new trial of the case. Immediately following the excerpt complained of the judge added: “but whether a witness has been so successfully impeached or not, and what credit you will give to the testimony of each and every witness, is a■ matter entirely for you as jurors to determine (Italics ours.) In our opinion the excerpt complained of’and the instructions just quoted which immediately followed it, when considered together, clearly instructed the jury that, after all, even if they believed that any witness had been successfully impeached by proof of contradictory, statements previously made by him as to a material matter, it was for them'to determine what credit should be given his testimony. The charge was therefore not contrary to the code-section cited above. See cases cited in Park’s Ann. Code, under § 5884.

The remaining special ground of the motion for a hew trial 'is without merit.

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

Judgment affirmed.

Bloodworth, J., concurs.

Stephens, J.,

dissenting.

Where the judge makes an erroneous charge it is presumably prejudicial, unless its harmful effect is- removed and corrected in his language elsewhere, or unless it appears that such language was harmless and did not affect the verdict. The judge charged the ■ jury that should they believe a witness has been “successfully impeached” by contradictory state-' ments previously made, they should “disregard his testimony altogether.” This is .conceded to have been error. To my mind its harmful effect was not cured by the language immediately following it or appearing elsewhere in the charge. To tell the jury, “What credit you will giye to the testimony of each and every witness is a matter entirely for you as jurors to determine,” does not negative the idea that in passing upon, the credit of a particular witness the jury is bound to reject his entire testimony when they disbelieve it in part. The testimony of the witness sought to be impeached was material to the defense, and if believed in part might have resulted in a different verdict. The charge being erroneous and not cured, and upon the controlling issue in the case, I am of the opinion that a new trial should be granted.


author: Stephens, J. Broyles, P. J.,

text:
    9811.
    Western and Atlantic Railroad Company v. Mallett.
   Stephens, J.

1. Where an amendment to the pleadings was offered and allowed, the trial judge did not abuse his discretion in overruling a motion, made by the opposite party, to continue, the case on the ground of surprise, when the movant made no showing to the effect that he was “less prepared for trial, and how, than he would have been if such amendment had not been made, and that such surprise is not claimed for the purpose of delay.” Civil Code (1910), § 5714; Georgia Life Ins. Co. v. Hanvey, 143 Ga. 786 (2) (85 S. E. 1036).

2. Where the existence of a fact was affirmed by positive evidence and denied by negative evidence, an issue was raised, and the trial judge committed no error in properly submitting such issue to the jury. Pendergrast v. Greeson, 6 Ga. App. 47 (64 S. E. 282); Innis v. State, 42 Ga. 473.

3. The assignments of error complaining of the charge of the court, as set forth in the 2d and 4th grounds of the amendment to the motion for new trial, are without merit. The charge was full and’ fair and correctly presented all of the issues in the case to the jury.-

Decided February 1, 1919.

Action for damages; from Whitfield superior court—Judge Tarver. May 7, 191&

Tye, Peeples & Tye, Maddox, McCamy & Shumate, for plaintiff in error. Glenn & House, contra..

4.-The testimony of the plaintiff, however improbable, was not "in contradiction to the well-established physical laws of the universe.” There was evidence to support the verdict, and no error of law was committed.

Judgment affirmed.

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

Broyles, P. J.,

concurring.

In my opinion it is a very close question as to whether the plaintiff was entitled to recover under the evidence adduced. The great preponderance and weight of the evidence was unquestionably in favor of the defendant, and the slight evidence which favored the plaintiff was weak, unsatisfactory, contradictory in spots, and improbable. However, I can not say that the verdict was not authorized by any evidence; and since it has been approved by the trial judge, and no error of law appears to have been committed upon the trial, this court is without jurisdiction to interfere, and I must concur in the affirmance óf the judgment.


text:
    9835.
    May v. Spears.
    Decided February 1, 1919.
    Trover; from Colquitt superior court—Judge Thomas. May 4, 1918.

      James Humphreys, R. A. Hendricks, for plaintiff in error.

      Parker & Gibson, contra.
   Stephens, J.

The assignments of error set forth in the motion for new trial and the admendment thereto, complaining of the ruling of the court in excluding certain testimony as therein set out and of certain excerpts from the charge of the court, are without merit. The verdict is amply supported by the- evidence, and the trial court committed no error in overruling the motion for hew trial.

Judgment affirmed.

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


text:
    10120.
    REYNOLDS v. THE STATE.
    Decided February 1, 1919.
    While in every criminal case where the .guilt of the accused depends wholly upon circumstantial evidence, it is the duty of the court, even in the absence of a written request, to charge the law of circumstantial evidence, it is immaterial what language is employed to convey this instruction, if every possible hypothesis arising from the circumstantial evidence, favorable to the defendant, be presented in concrete statement to the jury, and if they are instructed that if they believe any one of these hypotheses the defendant should be acquitted. Mangum v. State, 5 Ga. App. 445 (2) (63 S. E. 543) ; Barrow v. State, 80 Ga. 191 (3) (S. E. 64); Richards v. State, 102 Ga. 569 (27 S. E. 726); Jones v. State, 105 Ga. 649 (31 S. E. 574) ; Bush v. State, 23 Ga. App. 126 (9S. E. 554).
    Indictment for misdemeanor; from Eloyd superior court—Judge Wright. September 24, 1918.
    The only ground of the motion for a new trial other than the grounds which relate to the verdict was that the court erred in failing to charge the jury that “to warrant a conviction on circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt of the accused.” (Penal Code, § 1010.) The charge of the court was as follows: “The defendant in this case is charged with the offense of having in her possession, “custody, and control intoxicating liquors. I charge you, as a matter of law, that if, on the date alleged in this bill of indictment, the defendant had in her custody, possession, or control intoxicating liquors, you would be authorized to find her guilty. I charge you, that, in order to convict the defendant of this offense, it is necessary for the State to show to your satisfaction that the defendant had a guilty knowledge of the whisky in question beipg on her premises, if you believe any whisky was found on her premises. If the whisky was found on defendant’s premises and she had no knowledge of the whisky being there, then you will acquit the defendant.” The court then charged on the weight that the jury could give to the statement of the accused, and concluded as follows: “If you believe the defendant is guilty beyond a reasonable doubt, you will convict the defendant; otherwise acquit her.”

      W. B. Mebane, for plaintiff in error.

      C. H. Porter, solicitor-general, contra.
   Broyles, P. J.

The defendant was charged with having possession and control of intoxicating liquors, and upon the trial the undisputed evidence showed that several half-gallon jars containing whisky were found on her enclosed premises,—two of the jars being within five or six feet of a window of her house. The sole question left for the determination of the jury was whether the defendant knew of ■ the presence of the whisky on her premises. She introduced no evidence, and in her statement denied having any knowledge that the whisky was on her premises. This evidence, in our opinion, raised more than a mere suspicion of the defendant’s guilt, and was sufficient to authorize the jury to find that it excluded every reasonable hypothesis save that of her guilt.

Under the particular facts of this case, we do not think the court erred in failing to charge the exact language of section 1010 of the Penal Code upon the law of circumstantial evidence. The only possible hypothesis consistent with the innocence of the accused, arising from the evidence and her statement, was that she did not have any knowledge of the whisky being on her premises. The judge presented this hypothesis in concrete form to the jury, and instructed them that before the defendant could be convicted, the State must show that she had a guilty knowledge of the whisky being on her premises, and that if it failed to do so, she must be acquitted. Under the ruling in the cases cited in the headnote, we think the charge of the court sufficiently presented the principle of the law of circumstantial evidence applicable to the facts of the ease.

Judgment affirmed.

Bloodworth, J., concurs.

Stephens, J.,

dissenting.

It is the well-settled law of this State that where a conviction depends entirely upon circumstantial evidence the trial judge must give in charge to the jury the law relative to the degree of proof necessary to convict upon such evidence. See Park’s Penal Code, § 1010, and numerous citations under that section. It has been held, however, that, where the trial judge fails to expressly charge the law in reference to circumstantial evidence, but does, "fully and liberally to the defendant, instruct the jury as to the law of reasonable doubts, and the amount and character of testimony necessary to warrant a conviction”, he fully complies with the duty incumbent upon him in respect to charging the law of circumstantial evidence. The above-quoted language is taken from the case of Barrow v. State, 80 Ga. 191 (3). The authorities which lay down this seeming exception are cases wherein the evidence either demanded a verdict, or so far authorized a verdict that the charge upon the law of circumstantial evidence would not have produced a different result. The very judge who rendered the opinion in the Barrow case, supra (the oldest case cited and relied upon in the opinion of the majority of the court), said, in the case of Toler v. State, 107 Ga. 682 (33 S. E. 629): “While the failure of the court upon a criminal trial, in which the evidence a'gainst the accused is entirely circumstantial, to instruct the. jury concerning the rule applicable to evidence of this character would, in a dose or doubtful case, be cause for a new trial, such failure will not require another trial when the guilt of the accused is dearly and convincingly proved, and the charge as to the amount and character of proof requisite to a.lawful.conviction is such as to leave no room for doubt that the verdict would have been the same even if the court had in terms stated to the jury that, in order to warrant a verdict of guilty, the evidence must not ofaly be consistent with the guilt of the accused, but inconsistent with every other reasonable hypothesis.” (Italics mine.)

In Hamilton v. State, 96 Ga. 301 (22 S. E. 528), Judge Samuel Lumpkin, who wrote the opinions in both the Barrow and -the Toler cases, said, in the headnote thereto: “When in the trial of a criminal case the evidence against the accused was entirely circumstantial, it was the duty of the judge not only to charge upon the law of reasonable doubt, but also, whether so requested or not, to state to the jury the rule usually applicable in such cases, to the effect that the evidence must connect the accused'with the perpetration of the alleged offense, and must not only be consistent with his guilt, but inconsistent with every other reasonable hypothesis.” Further on in his opinion in that case the learned judge said: “The law upon this subject is very concisely and aptly stated in the 12th Am. & Eng. Ene. of Law, p. 879,-from which we make the following quotation: ‘Where the prosecution relies solely upon circumstantial evidence to secure a conviction, it is incumbent upon the trial court to instruct the jury as to the law applicable to such proof. No particular form of language is required; if the ideas conveyed are correct and so expressed as to meet the comprehension of the jury, it is sufficient.’ And see the cases there cited. In Barrow v. State, 80 Ga. 191, this court intimated [italics mine] that in a case in which the court ought to instruct the jury specifically as to the law of' circumstantial evidence, a failure to do so might be cause for a new trial, unless the court did in fact substantially give the jury all necessary instructions as to the amount and character of proof requisite in such a .case to justify a conviction. That was hardly a casé of purely circumstantial evidence; but on the assumption that it could be so regarded, this court thought that the charge of the trial judge, who is now the Chief Justice of this court, in effect conformed to the rule above laid down. It would be easy to cite authorities in great number sustaining the doctrine announced in the headnote, but we are sure it will'be accepted as good law without further support[Italics mine.] In his reference to the Barrow case, made in the Hamilton case just quoted from, Judge Lumpkin seems to have weakened on his position taken in the former ease. He refers to what was said in the Barrow ease on this point as an intimation, rather than as a decision, using .the word “intimated”; and further states that “it. was hardly a case of purely circumstantial evidence.” So much, therefore, for the Barrow case—the evident source of this doctrine. Its author restricted and confined it to its own special and peculiar* facts. In that case the court, in the opinion, referring to the charge of the trial court, said: “He charged fully the law of reasonable doubt; warned tire jury not to convict unless morally satisfied of her guilt; impressed this upon them by repeated statements to this effect; informed them that if, after an honest and .impartial investigation, they were uncertain as' to her guilt, they ought to acquit; instructed them they had the right to believe her statement in preference to the sworn testimony offered by the State;-and concluded by saying she entered the trial with the presumption of innocence in her favor, that this presumption remained until the State rebutted it by proof, and that if the State had failed to do so she should be acquitted.”

In the ease of Jones v. State, 105 Ga. 649, also cited and relied upon in the majority opinion, suffice it to say that Mr. Justice Little, at the conclusion of the headnote therein, says: “It would be otherwise if the evidence made the case close or doubtful, or if the account given of the manner in which the possession of the stolen goods was obtained was probable or consistent.” In the. Mangum and Bush cases, cited in the majority opinion, the charges were much fuller than in the case now under consideration. Both contained liberal cautions on reasonable doubt. In the Mangurn case the judge wept so far as to define circumstantial evidence, charged more or less fully on presumption of innocence, and also used this expression: “Whether dependent upon positive or circumstantial evidence the true question in all criminal eases is not whether it be possible that the conclusion at which the testimony points may he false, but whether there is sufficient testimony to satisfy the mind and conscience beyond a reasonable doubt.” This is the identical language of section 1013 of the Penal Code.

According to the view which I take pf the evidence in the case now before us, the doctrine of the Barrow case does not apply. I do not concede that the guilt of the accused is “clearly and convincingly proved.” No liquor was found in the defendant’s actual possession. Several small receptacles containing liquor were found on the defendant’s premises, outside of her dwelling-house, Only from the manner in which this liquor was placed, and the opportunity afforded thereby to charge the defendant with knowledge of its being on her premises, could she have been convicted. The circumstances were eopsistent with her innocence, and might not, in the minds of the jury, have excluded “every, other reasonable hypothesis save that of the guilt of the accused.” NoAdoes it appear that “the cpurt very fully and liberally to the defendant instructed the jury as to the law of reasonable doubt, and the amount and character of testimony necessary to warrant a conviction.” The charge pf the court in this connection was: “In order to convict the defendant of this offense, it is necessary for the State to show to your satisfaction that the defendant had a guilty knowledge of the whisky being there, then you will acquit the defendant,” Then,'after the customary charge on the defendant’s statement, the court concluded with, a final instruction that “If you believe the defendant is guilty beyond a reasonable doubt, you will convict the defendant, otherwise acquit her.” The court did not “charge fully the law of reasonable doubt.” (Italics mine.) He made no reference to it in connection with his charge as to knowledge by the defendant of the presence of whisky on her premises. He did not “warn the jury not to convict unless morally satisfied of her guilt;” he did not “ipipress this upon them by repeated statements to this effect;” he did not “inform them that if, aftér an honest and impartial investigation, they were uncertain as to her guilt they ought to acquit her;” and he did not charge “that she entered the-trial with the presumption of innocence in her favor [and] that this presumption remained until the State rebutted it by proof.” Nowhere were “the ideas [of circumstantial evidence] conveyed so as. to meet the comprehension of the jury.” Even assuming, as the majority in the case sub judice holds, that “The only possible hypothesis consistent with the innocence of the accused, arising from the evidence and her statement, was that she did not have any knowledge of the whisky being on her premises,” the* trial judge did not, in my judgment, instruct the jury “fully and liberally” as to the “amount and character of [this] testimony.”

I do not dispute the doctrine of the Barrow case, although it is confessedly obiter dictum. I am content to leave it with its author’s stricture upon it in the Hamilton case. Suffice it to say that if it is an exception to the general rule, for that reason it should be very cautiously applied.- It should be confined and restricted to those cases only which clearly fall within its compass, and where a failure to apply the general rule was harmless.

Had the law of circumstantial evidence been given in charge to the jury, the defendant might have been acquitted. The jury might have concluded, from the manner in which the liquor was located upon her premises, that she had no knowledge of its existence. The jury might have concluded that the circumstances were not suffi-' cient to exclude every other reasonable hypothesis save that of the guilt of the accused. The conviction depended entirely upon circumstantial evidence, and the verdict should be set aside and a new trial granted because of the failure of the trial judge to charge the law relative to the degree of proof necessary to convict when a conviction depends entirely upon such evidence. Lewis v. State, 6 Ga App. 205 (54 S. E. 701).


author: Bloodworth, J.

text:
    10123.
    Griffin, alias Beck, v. The State.
    Decided February 1, 1919.
   Bloodworth, J.

The facts set out in the answer of the judge of the county court to the writ of certiorari support the allegations of the indictment, and the judge of the superior court properly overruled the certiorari.

Judgment affirmed.

Broyles, P. J., concurs. Stephens, J., concurs dubitante.

Certiorari; from Putnam superior court—Judge Park. September 16, 1918.

Will Griffin, alias Beck, was convicted in the county court under an indictment which charged that, with intent to cheat, swindle, and defraud M. C. Carnes, he secured from Carnes $1 by representing that he had in his possession five cords of cord wood, and by agreeing to sell and deliver the wood to Carnes, when in fact the wood was not in his possession. He took the case to the superior court by certiorari, alleging that the conviction was contrary to law and the evidence. The evidence was set out in the answer to the certiorari as follows: “M. C. Carnes testified that he bought five cords of wood from Griffin and paid him a dollar on the purchase-price ; that in Eatonton he told Mr. George Hearn, with whom Griffin was living, that he had bought this wood and had paid a dollar on it, and was coming after the wood; that Mr. Hearn told him Griffin had no wood, that it was his wood, and that he need not come, because he could not get it. Carnes then asked Hearn to pay him his dollar back, which he refused to do. Carnes then went to see Will Griffin, and Will Griffin told him that he did not have any wood down at Mr. Hearn’s, and also refused to pay him the dollar that he had paid him, telling him to go down there and get the wood that belonged to Hearn, and Hearn would never know anything about it.”

R. C. Jenkins, R. D. Stubbs, for plaintiff in error.

Doyle Campbell, solidtor-engeral, contra.


text:
    10126.
    CANADY v. THE STATE.
    Decided February 1, 1919.
    Although the law of manslaughter should not be gi.ven in charge to the jury in a case in which that grade of homicide is not involved, the giving of instructions thereon is not prejudicial and not cause for a new trial to one convicted of voluntary manslaughter when the evidence for the' State .made a case of murder and none of the evidence nor the statement of the defendant would justify an acquittal.
    Indictment for murder—conviction of voluntary manslaughter; from Calhoun superior court—Judge Harrell. August 17, 1918.

      C. J. Taylor, for plaintiff in error.

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

The only special ground of the motion for new trial complains that the court erred in charging the jury upon voluntary manslaughter. “Though a charge upon the law of voluntary manslaughter was barely warranted, the fact that such a charge was given does not, in the present case, present any reason for granting the accused, who was convicted of this offense, a new trial; for the State’s evidence made against him a ease of murder, and there was no testimony which would have justified an acquittal. The homicide being manifestly felonious, and the verdict being the most favorable to the accused which could, in any view of the ease, have been rendered, he was not injured by an instruction which afforded the jury an opportunity to thus grade the crime.” Carver v. State, 105 Ca. 461 (30 S. E. 433). But even if voluntary manslaughter was not involved in this case, neither the evidence of the witnesses nor the statement of the defendant would warrant an acquittal, and the rule is thus laid down in Robinson v. State, 109 Ga. 506 (34 S. E. 1017) : “If in a trial for murder the law of voluntary manslaughter is not involved, the court should not charge thereon, but so doing will not, in such a ease, be cause for a new trial, if the accused be rightly convicted of murder, or if, though he be convicted of voluntary manslaughter only, a verdict of murder was really demanded. If, however, in such a case, the accused be convicted of voluntary manslaughter when there wa's evidence which would have warranted an acquittal, or when his statement, if believed, wóuld have so warranted, there should he a new trial.” We can say of the verdict in the instant case as was said by Judge Lumpkin of the verdict in the Robinson ease, “There was too much of righteousness in it for us to set it at naught.”

Judgment affirmed.

Broyles, P. J., concurs. Stephens, J., concurs dubitante: