text:
    631.
    HARWELL, alias ISAAC, v. THE STATE.
    1. The presumption of fraudulent intent, arising under the labor-contract law of 1903 (Acts of 1903, p. 90), as to one who obtains advances on the faith of his contract for services to be performed at a future time, and who does not enter upon such service, is not rebutted by repayment of the advance, unless such payment be made on or before the date fixed by the contract for the commencement of such labor or service.
    2. A charge not applicable to the evidence, or without evidence to support it, is erroneous.
    3. Under the decision of the Supreme Court in Howard v. State, 126 Ga. 538 (55 S. E. 239), the court should have charged the jury that if it appeared, from the evidence, that the accused was a minor, and that the failure on his part to perform the services required under the contract was due to parental interference and control, the presumption of fraudulent intent, arising from the fact that the money was procured . on the faith of the contract and the service not rendered or the money returned, would be rebutted, and the defendant could not be convicted. The failure to so instruct the jury requires the grant of a new trial.
    Accusation of misdemeanor, from city court of Monticello. Judge Thurman. June 17, 1907.
    Submitted October 7,
    Decided October 14, 1907.

      A. Y. Clement, for plaintiff in error.

      Doyle Campbell, solicitor, contra.
   Russell, J.

The defendant was indicted for the offense of cheating' and swindling by procuring $20 from one M. Benton, by means of a contract with said Benton to work as a farm laborer, this sum, as alleged, having been fraudulently procured after the contract. Before trial the defendant demurred to the indictment, both generally and specially. The court overruled the demurrer, and exceptions were taken pendente lite. The grounds of the demurrer were as follows: “(1) Because said indictment, in the matters therein contained, is insufficient in law, and he ought not to be required to answer same. (2) Because the allegations in said indictment are too vague, indefinite, and uncertain. (3) Because said indictment, in the averments therein contained, does not charge any offense under the law. (4) Demurring specially, defendant says it appears from the face of said indictment that the time has not expired in which said service was to be performed, and that under the statute he has the right and privilege of returning the money, with interest thereon, at any time before the expiration of the year 1907; and that it can not be legally presumed that he will not return the money, with interest thereon, before the expiration of said period; and for this reason said indictment is premature and invalid. (5) Specialty, because said indictment does not allege that said contract was in writing; nor does it allege that defendant was contracted with as an ‘overseer/ but negatives that implication by alleging that he was ‘to work as a farm laborer for one year, beginning January 1, 1907/ said indictment shows upon its face that the alleged contract was void, illegal, contrary to public policy and the statute of frauds, and was not binding, for the reason that it appears that said contract was not to be performed within one year from the making thereof, and that said contract was made December 28, 1906, and that the term of service was for ‘one year, beginning January 1, 1907.’ Defendant says that the said indictment shows that the alleged contract was not to be performed within one year from the making thereof. It is essential to the validity of said indictment that it show that the alleged contract was in writing, or that the alleged contract was made with defendant as overseer; and in the absence of both of these essential averments, it is apparent that the alleged contract was void and illegal, and therefore said indictment is invalid and sets forth no offense against defendant. (6). Specially, because said indictment is fatally defective in that it fails to allege when said service is to be performed, or within what particular period it was to be performed; it should allege not only when said service was to begin, but when it was to end.” Upon the trial the defendant was convicted. He made a motion for a new trial, and now excepts to the order overruling his motion. In addition to the general grounds, it is insisted, (4) that the court erred in admitting the alleged written contract between the defendant and the prosecutor, which was as follows:

“Monticello, Ga., 12/27, 1906. I, Ernest Harwell, of Jasper county, formerly of Morgan county, Ga., in consideration of $20.-00, advanced to me by M. Benton, of Jasper county, Ga., do contract and agree to work for the said M. Benton for the year 1907, do any and all kinds of farm work that may be required of me by the said M. Benton or his agent. M. Benton agrees to pay the said Ernest Harwell $10.00 per month and % of every Saturday, Ernest Harwell agrees to work Saturday evening when called on, and is to receive 25 cents extra for said extra work. Isaah Byrd signs the above contract for security for the $20.00 advanced.
“Witness to contract: [Signed] Ernest Harwell,
his his
Isaah x Byrd. Isaah x Byrd,
mark mark
M. Benton.”

In the 5th ground it is insisted that the court erred in permitting the solicitor to ask the witness Allie Isaac, over defendant’s objection that the questions and answers were irrelevant, immaterial, and inadmissible, “How old are you? How old were you when you married? How long had you been married when the defendant was born?” In the 6th ground of the motion it is alleged that the judge erred in charging the jury as follows: “If you believe, from the evidence, that defendant had a good and sufficient reason for not performing the services or returning the money advanced under said contract, if you find there was a contract, then you would be authorized to acquit him; but if you believe, from the evidence or the statement of the accused, that he entered into said contract with the intent of procuring the money and not performing the service, and that he did not have a good and bona fide reason for non-performance, and that the reason he offers is a mere excuse for the purpose of escaping punishment, then you would be authorized to convict.” The 7th and 8th grounds complain of refusals of the judge to charge in accordance with certain requests submitted by defendant’s counsel. The 9th ground insists that the court eliminated from the jury, as an element of good faith on the part of the defendant and as a defense, the evidence that the defendant gave a security on the contract, by an additional charge delivered to the jury after they had started to the jury-room to consider their verdict; and it is insisted that the additional charge, at the time and under the circumstances and in the manner given, was hurtful to defendant. The 10th ground of the motion insists that the judge erred in charging the jury that if the defendant made a false representation as to his age, this fact might be looked to by the jury in ascertaining the intention of the defendant at the time. The 11th ground of the motion assigns error in that the judge failed to instruct the jury upon the subject of circumstantial evidence.

It is unnecessary to rehearse the evidence. The evidence in behalf of the State was sufficient to authorize the verdict of guilty, and there was no error in overruling the motion for new trial, unless the rulings and instructions complained of were, for the reasons assigned, erroneous.

We think the court properly overruled the demurrer. It is necessary for the period of time in which the money may be returned to have expired, in order for the legal presumption to arise that the defendant intended to defraud, or that he does not intend to return the money advanced with interest thereon. But the time for repayment expires when he' should begin his service and fails to do so. The contract referred to in the act of 1903 is not one for the repayment of money, but to perform service. Nor was the indictment demurrable on the ground of the statute of frauds, in that it appeared that the contract was made December 28, 1906, and the term of service was for one year, beginning January 1, 1907. It was unnecessary to state in the indictment that the contract was in writing. It would be presumed to be in writing, unless the contrary appeared. And by the language used in the indictment, — "did contract with one M. Benton,” and, after having so contracted, procured,” etc. (applying the language of the act), — it could only be understood that the contract was in writing. Nor was the indictment demurrable on the ground that it failed to allege when the service was to be performed. It is undoubtedly true that indictments brought under this act must allege when the service was to be performed, or within what particular period it was to be' performed, but there was nothing vague or doubtful in the statement of the indictment that the service was for the period of "one year, beginning January 1, 1907.” This would necessarily mean from January' 1, 1907, to December 31, 1907, inclusive.

Our ruling on the 5th ground of the demurrer disposes of the 4th ground of the motion for a new trial. If the language of the act requires that the word “contract” be considered as referring to a writing, then not only was there no error in admitting the writing to which objection was made in the 4th ground, but the State’s case would have failed unless the contents of the contract had been proved; and the writing itself is the best proof of what it contains. The fact that Isaiah Byrd was security on the contract and that the contract showed a credit indorsed thereon would not affect the admissibility of the evidence as showing a contract to have been made between the defendant and the prosecutor. It might affect the result of the trial.

We find no error in the charge complained of in the 6 th ground. The objection made to it was that it intimated an opinion that the reason offered by the defendant for non-performance was not a good and bona fide reason, and tended to discredit the defense set up by the defendant. It is plain that all that the judge said as to the defense being a mere excuse for the purpose of escaping punishment, or as to its not being a good and bona fide reason for not performing the contract, is qualified, limited, and controlled by the words, “if you believe from the evidence.”

The charge requested in the 7th ground is a correct presentation of principles applicable to the cause on trial, and should have been presented to the jury. But .the judge is not required to pre-( sent the charge in the verbiage or connection of the request. His-instruction to the jury upon each of the subjects contained in the request being clear, full, and explicit, there was no error in not presenting the request in its exact language.

The judge properly refused to charge that “if the jury believe from the evidence that M. Benton took Isaiah Byrd as security on said contract, and that he looked to Isaiah Byrd for the payment of the money in the event the defendant failed and refused to do so, you could not legally convict the defendant.” As remarked before, the purpose of the contract was to perform service. It would be immaterial whether the money were paid back or not, if the service were performed. If the service was not performed, it would still be immaterial, if it were apparent that the defendant intended, at the time of procuring the money, not to- perform the service, unless in fact the money was returned before-prosecution. Certainly it does not follow that because the prosecutor took security for money advanced to the defendant on the faith and representation of the defendant to do certain work, the defendant could not have had the intention to cheat and swindle the prosecutor by not working, as he contracted to do. It is possible that he might have intended both -to cause the security to lose the money and the prosecutor the labor.

The fact that Isaiah Byrd was security for the payment of the advancement is immaterial, as we have just remarked, if the defendant did not intend to perform the service he had contracted to perform. Isaiah Byrd was security only for the repayment of the advancement. For this reason, there was no error in the charge complained of in the 9th ground of the motion for a new trial. The charge excepted to is not, for any reason, erroneous. The fact that the judge recalled the jury after they had started to retire to the jury room is not a circumstance of prejudice to the defendant. The judge had not instructed them one way or the other as to the fact of Isaiah Byrd’s being security. It was proper that they should be instructed as to this contention, and they were properly instructed after they were recalled.

In the 10th ground of the "motion it is insisted that the judge erred in charging the jury that “if they believe the defendant stated to M. Benton, the prosecutor, at the time said contract was made, that he was twenty-one years of age and that he was not twenty-one in fact, said false representation as to his age might be looked to by the jury in ascertaining the intent of the defendant at the time.” Upon examination of the record, we find that this instruction was unauthorized by the evidence. Both Benton and Byrd testified that the defendant said that he was not twenty-one, at the time the contract was made. The charge contains no intimation of opinion on the part of the judge ■ as -to any portion of the evidence; but, because it presents a theory not authorized by the evidence, it is reversible error.

As held by this court in the case of Riley v. State, 1 Ga. App. 651, where a conviction depends solely upon circumstantial evi-. dence, the jury should be instructed that the proof offered must not only be consistent with the guilt of the accused, but must exclude every other reasonable hypothesis.- In this case the guilt of the defendant was dependent entirely upon the intent to defraud, existent at the time he obtained the advancement. This intent, or the lack of such intent, could only be determined by circumstances; so, in its essence, the case depended entirely upon circumstantial evidence. The rule of law above stated was absolutely pertinent; and the jury should have been instructed with reference thereto, even in the absence of a request.

Our judgment is controlled by the decision in Howard v. State, 126 Ga. 538 (55 S. E. 239). The trial judge in this case entertained the correct view of the law embodied in the act of 1903 (Ga. Laws of 1903. p. 90), as to all of the matters with regard to which complaint is made, but, under the decision above cited, he should have presented to the jury the defendant’s defense that he was prevented from performing his contract of labor, on account of his minority and the parental control of his mother; and should have instructed the jury that if they believed, that the-accused was.a minor, and that his failure to perform his contract was due to the mandate of his - mother, the presumption of fraudulent intent would be rebutted, and they would be authorized to acquit the defendant. Judgment reversed.


source: Caselaw Access Project

author: Powell, J.

license: Public Domain

text:
    643.
    Rumsey v. The State.
    Indictment for selling liquor, from Stephens superior court— Judge Kimsey. June 10, 1907.
    Submitted October 7,
    Decided October 14, 1907.

      R. A. Naves, McMillan & Erwin, for plaintiff in error.
    W. A. Charters, solicitor-general, contra.
   Powell, J.

1. Upon the general grounds this case is controlled by Plummer v. State, 1 Ga. App. 507 (57 S. E. 969).

2. The contention that the sentence is excessive can not properly be made a ground of a motion for a new trial. Baldwin v. State, 75 Ga. 482; Sturkey v. State, 116 Ga. 526 (42 S. E. 747); Bellinger v. State, 116 Ga. 545 (42 S. E. 747); Burgamy v. State, 114 Ga. 852 (40 S. E. 991).

3. “A new trial will not be granted in a criminal case because of the relationship within the prohibited degrees of a juror to the accused, although such relationship was unknown to' the accused and his counsel until after verdict.” Downing v. State, 114 Ga. 30 (39 S. E. 927), wherein previous decisions to the same effect are expressly approved, after review. See also Olliff v. State, 1 Ga. App. 553, 554 (57 S. E. 941).

Judgment affirmed,.


author: Hill, C. J.

text:
    645.
    Murray v. The State.
    Indictment for fornication, from Stephens superior court— Judge Kimsey. June 7, 1907.
    Submitted October 7,
    Decided October 14, 1907.
    Corrie Murray was convicted under an indictment charging her with having committed fornication with Will Price. She excepted to the, overruling of her motion for a new triál, alleging that the verdict was without evidence to support it. The only testimony introduced, to prove the alleged offense, was that of John Stephens, who testified as follows: “On December 26, 1906, I went to Corrie Murray’s father’s (George Murray’s) here in Toccoa, . . about sun up. No one was up. I married Cor-Tie’s sister, and went there to get Corrie’s mother, Mrs. Murray, to go and wait on my wife, who was sick. Mrs. Murray got up and opened the door for me, and began to make a fire. She had slept in the front room, her husband being away from home, I went in and sat down in front of the fireplace, with my back towards the door leading into the adjoining room. In a few minutes Corrie Murray came in. I do not know what room she came from, or where she came from. She came up from behind me. She had on only a thin guaze, thrown over her shoulders. In a few minutes Will Price came in, sat down, and I noticed that he was fastening his shoes as if he was just finishing dressing. He came up from my rear, but I do not know where he came from. There were three rooms in the house, — the one occupied by Mrs. Murray, which I was sitting in, .the cook-room, and the room in the rear, from the direction of which both Corrie Murray and Will Price came. I didn’t see either of them come out of the room, because my back was turned. They did not come out of the cook-room, and there was no other place for them to have come from, except from the rear bedroom. Neither Corrie Murray nor Will Price have ever been married. Will Price lives here in Toccoa. I saw no one there except Mrs. Murray, Will Price, and Corrie Murray, and some children. The house was pretty full of children.”
   Hill, C. J.

No fact or circumstance in the evidence raised a reasonable inference of guilt. The hypothesis of guilt was entirely hypothetical, and was fully overcome by positive testimony and several reasonable hypotheses of innocence. The verdict, being wholly without support of evidence, is without foundation of law, and the refusal to grant a new trial was error. Judgment reversed.

Cynthia Hanie testified, that she and her sister Corrie (the accused) slept in the same bed, in the back room of their mother’s house, in the night “about last Christmas,” when Will Price was there; that he was visiting Corrie that night, but did not and could not come into the room in which she and Corrie slept; that while Corrie was in the room the only door of the room was fastened; that their mother slept in the front room, and Will slept with the children in the middle room; that Corrie, in going to the back room, to go to bed, passed directly through the room in which Will afterwards slept, and did not leave the back room until she heard John Stephens knocking the next morning, and then she went at once into her mother’s room without stopping. The statement of the accused was to the same effect. Witnesses’ for the State testified that the general character of Cynthia Hanie was bad, and they would not believe her on oath.

Fermor Barrett, R. A. Naves, for plaintiff in error.

W. A. Charters, solicitor-general, contra.


text:
    646.
    BRADLEY v. THE STATE.
    1. Although a person may have had information of the defendant’s intention to commit the crime under investigation, prior to the time of its commission, and may afterwards have concealed it, he is not an accomplice of the defendant, within the meaning of the rule requiring corroboration of the testimony of an accomplice.

      {a) An accessory after the fact is not an accomplice.
    (6) Nor is a‘receiver of stolen goods an accomplice of the principal thief.
    2. In an indictment for larceny or for burglary the ownership of personal property may be laid in the person having actual lawful possession of - the same, although he may be holding it as agent or bailee of another. Wimbish v. State, 89 Ga. 294 (15 S. E. 325).
    3. No reversible error appears in the record.
    Indictment for burglary, from Walker superior court — Judge Wright. June 10, 1907.
    Submitted October 7,
    Decided October 14, 1907.

      John W. Bale, F. W. Copeland, for plaintiff in error.

      W. H. Ennis, solicitor-general, Walter B. Shaw, contra.
   Powell, J.

The defendant was convicted of burglary. The witnesses upon whose testimony the conviction rested were his accomplice, House, and the latter’s wife. Certain assignments of error raise the question as to whether Mrs. House was not also an accomplice. She heard the defendant and her husband planning the burglary and advised them against it; but after the crime had been committed and a portion of the stolen money had been left in her house, she attempted to secrete it from the officers who were searching for it. She was not a principal, for she did not directly or indirectly participate in the crime. She was not an accessory before the fact, because she did not procure, counsel, or command it to be done. She may have become an accessory after the fact, or may have been guilty of the independent offense of receiving stolen goods; but neither of these relations to the case makes her an accomplice. Lowery v. State, 72 Ga. 649; Allen v. State, 74 Ga. 772; Springer v. State, 102 Ga. 447 (30 S. E. 971).

The indictment alleged the ownership of the property to be in one Berry. The proof showed that the money actually belonged to a Tennessee corporation by which Berry was employed, but that it had been entrusted to Berry for the purpose of paying off hands, and that it was stolen from Berry’s trunk, where he had placed it dor safe keeping. This is sufficient.

There are other assignments of error in the case, but we find none of them meritorious. The testimony against the defendant did not come from a very satisfactory source, and he may not be guilty; but he has had a fair trial, and we have no power or inclination to interfere in such cases. Judgment affirmed.


text:
    660, 661, 662, 663, 664, 665.
    BUTLER et al. v. THE STATE.
    The verdict was fully authorized by the evidence, and no error of law was committed.
    Indictment for gaming, from Wilkes superior court — Judge Holden. June 17, 1907.
    Submitted October 7,
    Decided October 14, 1907.

      F. H. Colley, William Wynne, for plaintiff in error.

      David W. Meadow, solicitor-general, contra.
   Hill, C. J.

Six men were jointly indicted in the superior court <of Wilkes county, for the offense of gaming. They were tried together and were all convicted, and their motions for new trial were ■overruled. The grounds of the motion in each ease were similar, ■and were the statutory grounds and one special ground, — the refusal of the court to charge the jury as follows: “The mere fact that a piece of money was on the table when a game of cards was being played, without some evidence to show that it was being bet ■or staked on the game, will not authorize a conviction.”

According to the testimony of an officer of the law, he saw all six of these defendants in the back end of Abe Williams’ place of business. The defendants were sitting “around a box or something like a trunk,” and each was playing with cards, and money was on top of the box or trunk, partly covered up with a piece of paper. The players were so busily engaged in the game that they did not see the witness until he put his hand on one of the players. This player immediately arose and grappled with the officer, and all the ■others ran out of the room, in their hasty exit throwing the box, the cards, and the money on the floor. The money was silver money, but the witness could not tell how much there was; but there were several stacks or piles. We think the verdict of the jury was authorized by the foregoing evidence. I-Hicks v. State, 1 Ga. App., 722 (57 S. E. 958); Pacetti v. State, 82 Ga. 297 (7 S. E. 867). The strong inference of guilt arising therefrom was not weakened by the testimony of each one of the defendants in behalf of the' others, that they were playing, hut were not betting for money or other thing of value. Such denial is not unusual in criminal cases, but is very frequently the protest of the guilty even when caught in the act. Nor do we think the fact that certain reputable citizens bore testimony to the good character of the defendants was sufficient to generate any doubt, as against the positive facts clearly indicating guilt. There are a great many excellent people who-probably would not permit their good opinion of a man to be affected by the fact that he played cards for money or other thing-of value. Many good men classify gaming as malum prohibitum,, with no element of malum in se.

The request to charge stated a truism so manifest and simple that it might reasonably and safely have been left to the ordinary intelligence of the jury without any instruction; but the request itself was fully covered by the general charge, and especially that part in the following language: “I charge you, as requested by defendants’ counsel, there is no law in this State which forbids the playing of cards. It is necessarjq for it to be a crime, for money or other thing of value to be staked on the game. Before you can convict the defendants, it must appear that they played for something of value.” Judgment affirmed.


author: Russell, J.

text:
    669.
    McCLURG v. THE STATE.
    1. Parol evidence is not admissible as proof of title to real estate, and it was error to refuse to repel the statements of witnesses as to tha ownership of land, when such evidence was properly objected to.
    2. The time, place, and circumstances of the act are all relevant for the purpose of disproving malice.
    Accusation of misdemeanor, from city court of Moultrie — JudgeShipp. July 1, 1907.
    Submitted October 7,
    Decided October 14, 1907.
    Mrs. H. J. McClurg was convicted under an accusation charging her with having wilfully and maliciously injured and destroyed
      a certain gutter used to convey water from the well to the horse lot of B. J. Jones, and being the property of C. H. Christian and B. J. Jones. She excepted to the refusal of a new trial. The grounds of the motion for a new trial, besides those which complained of the verdict as contrary to law, evidence, etc., were as follows: “4th. The solicitor asked B. J. Jones, 'Who owns the premises?’ Answer: ‘J. B. Norman;’ which was objected to by the defense because it sought to prove title to real estate by parol; which objection the court overruled.” “5th. The solicitor asked B. J. Jones, 'Upon what premises was this gutter that led from the well to the trough?’ which was objected to by the defense because it sought to 'prove title to real estate by parol; which'objection the court overruled.” “6th. Because J. B. Norman testified that 'these two roads were on my property;’ which was objected to by the defense because it sought to prove title to real estate by parol; which objection the court overruled.”

      D. W. Rountree, W. C. McCall, J. D. Wade Jr., for plaintiff in error. W. F. Way, solicitor, contra.
   Russell, J.

The turning point in this case is whether the trough or gutter which the plaintiff in error was alleged to have maliciously destined, and which she admitted she cut to pieces, was rightfully on the land of another, or whether it was being used (apparently wantonly) to stop up the only road she had to go to her home, and thus destroy her only means of ingress or egress from her property. The destruction of the property alleged in the accusation was admitted. The only other question that could arise in the case was, Avhether the destruction was malicious. If the gutter was on land on which it properly belonged, the law might infer malice from the fact of the destruction. If it were on a roadway, the circumstances leading up to the destruction might rebut the presumption of malice. Over the objection of defendant’s counsel the court permitted parol evidence as to the ownership of the land where the gutter was alleged to have been placed; and in this we think the court erred. As stated by the Supreme Court in Bleckley v. White, 98 Ga. 598 (25 S. E. 592), “the law goes quite far enough in presuming possession rightful.” The bare statement of a witness that he owns certain real estate is no proof of title. It is uncontradicted, in the evidence, that the gutter or water-trough from Jones’ well to the horse lot was built across what had been used for from eighteen to twenty-one years as a private road, leading from the public road to Mrs. McClurg’s home. This being true, Jones and Christian would have had no right to close this road by building a trough thirty-five feet in length, leading from the well to the horse lot, even though, by changing her course of travel, Mrs. McClurg could have gone around the well and back into the road beyond the trough; and as-it appears that Mrs, McClurg had frequently been compelled, at no little trouble and inconvenience, as well as the exercise of physical force, to lift the middle portion of the trough or gutter, which was fifteen or sixteen feet long, out of the road in order to effect a passage, and as this road was her mill-road, market-road,, and road to lier mail-box, it can not be said that this blocking of her only means of ingress and egress to her home was not vexatious. Whether the destroying of this heavy obstacle was or was not malicious is, of course, a question for the jury. As to whether, when Mrs. McClurg cut this gutter to pieces, she was influenced by ill will towards the owners of the gutter, or whether, even though illegally, she was endeavoring to relieve herself from an unwarranted and aggravating invasion ofr her right of locomotion, is to be determined by the jury. To show that the gutter is on land owned by a private individual overcomes the presumption of innocence; and in every criminal case this presumption can be overcome only by. legal evidence.. The evidence of Jones and Norman,, as set out in the 4th, 5th, and 6th grounds of the motion for new trial, was not such legal evidence. The objections offered to the admission of this testimony were proper and timely. Title to land can not be shown by the statement of a witness that he owns the land. There was, therefore, no proof to contradict the testimony in behalf, of the plaintiff in error, that the gutter was erected across a private road; and the verdict was, for that reason, without evidence to support it. Judgment reversed.


text:
    675.
    JENKINS v. THE STATE.
    1. To instruct a jury in a case where tlie defendant is charged with carrying a concealed pistol, and where his defense is that he had no pistol at all, that “if the pistol was carried so exposed 'to view that it could readily he seen and recognized as a pistol, . ,: he carried it, in legal contemplation, in an open manner; if he carried it concealed, but for a moment, the offense of carrying a concealed weapon is complete,” is, in the absence of any instruction to the jury that they must determine from the evidence whether the defendant actually had a pistol or not, such an intimation of opinion, that he had a pistol, as practically eliminates his defense, and demands the grant of a new trial.
    2. To instruct the jury that a witness sought to be impeached may be sustained by proof of general good character is erroneous, in the absence of any evidence as to his good character. The law should fit the facts.
    Accusation of carrying concealed weapon, from city court of Ashburn — Judge Hawkins. May 27, 1907.
    Submitted October 7,
    Decided October 14, 1907.

      James H. Pate, J. J. Forehand, for plaintiff in error.

      J. A. Comer, solicitor, contra.
   Russell, J.

The defendant was convicted of the offense of carrying concealed weapons. Outside of the general grounds of the motion for new trial, the assignments of error all relate to alleged errors in the charge of the court. The first instruction complained of is as follows: “I charge you, gentlemen of the jury, that .if the pistol was carried so exposed to view that it could readily be seen and recognized as a pistol, . . he carried it, in legal contemplation, in an open manner; if he carried it concealed, but for a moment, the offense of carrying a concealed weapon is complete.” The objection raised is that this instruction -contained an intimation of opinion, unless it had been qualified by the appropriate charge that it would be the duty of the jury first to determine whether or not the defendant did have a pistol at the time and place charged in the accusation. It is possible to construe the language of the judge, taken by itself, so as to infer that he had in contemplation the pistol mentioned in the evidence, hut the instruction complained of must be considered in connection with its context. The sentence complained of follows immediately a quotation of §341 of the Penal Code, defining the offense, and immediately precedes the proper instruction of the court on the presumption of innocence. The only criticism, therefore; that can be passed upon the excerpt of the charge complained •of, when taken by itself, is that the definite article “the” is used instead of the indefinite “a.” The charge would have been more exact had the judge said “if a pistol is carried/’ etc., and the substitution of “a” for “the” would have relieved this first difficulty. But this does not reach the root of plaintiff in error’s complaint.. The essence of his defense was that he did not have a pistol at ally concealed or not concealed. The court omitted anywhere in the charge to clearly present this defense to the jury. The language used in the instruction complained of, if nothing else, made it absolutely necessary that this theory should be presented. If the court had instructed the jury that unless they were satisfied that the defendant had a pistol, or, if they were not satisfied that he had a. pistol at the time and place alleged, they should acquit him, the-language used would not have amounted to such an intimation of opinion as to constitute reversible error. If the judge had even-inserted parenthetically into the first portion of the charge complained of the words, “if you believe, from the evidence, that the defendant had a pistol at the time alleged,” the jury might not. have been influenced; the charge might not have been error. See A. & B. Air-Line Ry. v. McManus, 1 Ga. App. 302 (58 S. E. 258). But with the theory of the defendant’s statement not presented (although, in the absence of a request, it need not, generally, be-presented), the language used could convey to the jury the impression that the defendant had a pistol at the time and place alleged, and that the jury had only to determine the single question whether it was concealed.

The second portion of the charge excepted to is that relating to the impeachment of witnesses. It was inapplicable to the facts. The portion excepted to was as follows: “When thus impeached he may be sustained by proof of general good character. The -effect of the evidence is to be determined by the jury.” This charge, was inappropriate and erroneous, because no testimony was introduced as to the general good character of the witness sought to be impeached, nor was there any other testimony by which the impeached witness could have been corroborated. There is no proper assignment of error as to the third portion of the charge to which exception is taken, and therefore the exception can not be considered. Judgment reversed.


text:
    677.
    Williams v. The State.
    Accusation of larceny, from city court of Ashburn — Judge Hawkins. May 26, 1907.
    Submitted October 7,
    Decided October 14, 1907.

      J. H. Tipton, R. L. Tipton, for plaintiff in error.

      J. A. Comer, solicitor, contra.
   Hill, C. J.

1. The grounds of error set out in the amendment to the motion for a new trial, not'having been approved or verified by the trial judge, will not be considered by this court. Jackson v. State, 116 Ga. 834 (43 S. E. 255); Dunn v. State, 116 Ga. 515 (42 S. E. 772); Taylor v. Brown, 114 Ga. 299 (40 S. E. 281); Long v. Scanlan, 105 Ga. 424 (31 S. E. 436).

2. A judgment sustaining a demurrer to a special plea in bar to an indictment can not be made a ground of a motion for a new trial. Exception to such a judgment must be taken either by a bill of exceptions sued out within twenty days from the date of the judgment, or by exceptions pendente lite, properly allowed and certified, on which error is duly assigned. Rogers v. State, 1 Ga. App. 527 (58 S. E. 236); Long v. State, 118 Ga. 319 (45 S. E. 416).

3. The statutory grounds of the motion for a new trial are without merit, there being some evidence to support the verdict which was approved by the trial court. Judgment affirmed.


text:
    678.
    WILLIAMS v. THE STATE.
    T. Where every essential ingredient of the offense charged is set forth with sufficient clearness to enable the defendant to prepare his defense, and the jury clearly to understand the nature of the offense, the accusation is not demurrable.
    :2. The court judicially knows that the land lots in what was formerly Irwin county, then Worth, and now Turner county, contained four hundred and ninety acres of land. The words “two hundred and forty acres of land, second land district, lot of land No. 70,” would not indicate in what portion of land lot No. 70 the premises lay. Consequently an objection to this evidence, as contained in the register of posted land, should have been sustained.
    Accusation* of misdemeanor, from city court of Ashburn — Judge 'Hawkins. May 27, 1907.
    Submitted October 7,
    Decided October 14, 1907.

      John B. Hutcheson, for plaintiff in error..

      J. A. Comer, solicitor, contra.
   Russell, J.

The defendant was convicted of misdemeanor,— fishing with hook and line on land duly posted according to law, after he had been forbidden by the owners thereof. Before trial he demurred to the accusation and filed exceptions pendente lite to the order of the court overruling the demurrer. The overruling of the demurrer and the judgment refusing a new trial are the alleged errors presented for our consideration.

We think the demurrer was properly overruled. The accusation sets forth the offense charged with sufficient clearness for the defendant to be enabled to prepare his defense, and for the jury to clearly understand the charge against him.

We think that the court .erred in admitting the register of posted lands for Turner county. The objection of the defendant’s counsel, that the register failed to describe the lands posted and identify them as the lands on which defendant was alleged to have illegally fished, was well taken. The court judicially knows that the land lots in what was formerly Irwin county, then Worth, and now Turner, contained four hundred and ninety acres of land. 'The description in the register of the land posted was too vague and indefinite for purposes of identification. “Two hundred and forty acres of land, second land district, lot of land No. 70,” would not indicate the location of the land or in what portion of the lot it lay. The two hundred and forty acres might be on the north side of the lot, the east side, west side, or south side, or in the centre of the lot. The evidence should have been repelled; and for this reason a new trial should have been granted.

The 2d ground of the motion for a new trial presents no reason why the court should have ordered a mistrial; and the grounds complaining of the judge’s charge present no such assignment of error as can be considered by this court. The 3d ground can not be considered, because it is well settled that the overruling of a demurrer is not a proper ground of a motion for a new trial. For these reasons it is unnecessary to consider any of the remaining grounds of the motion. Judgment reversed.


text:
    685.
    Ledbetter v. The State.
    Accusation of larceny, from city court of Sylvania — Judge Boy-kin. June 10, 1907.
    Submitted October 7,
    Decided October 14, 1907.
    Ledbetter was indicted by the grand jury of Screven county for a misdemeanor. The indictment was transferred from the superior court of Screven county to the city court of Sylvania, in rvhich the defendant filed a plea in abatement, alleging, in substance, that the indictment was delivered into court from the grand jury by one Gilbert, who was not the bailiff of the grand jury, and who was not a sworn officer of the court, and was without authority of law to hand the indictment into the court.; and that the delivery of the indictment into court by him was not in the presence of rho grand jury, but was made privately, after the grand jury had taken a recess for the day. The State filed a traverse to this plea, and the issue thus raised was, by consent, tried by the judge without a jury. The evidence introduced'by the defendant in support of the allegations of his plea was substantially as follows: Two witnesses testified, that they were in the office of the clerk of the superior court on the day the indictment was found; that one Gilbert, an assistant to the solicitor-general, came into the office from the direction of the grand-jury room, and handed to the clerk a batch of indictments, including the one in question; and that at this time the grand jury was not in session. There is no direct evidence in the record as to the source from which Gilbert got the indictment. The evidence on the part of the State showed that the clerk of the superior court had a deputy, named Potter, who habitually performed the functions of clerk, frequently receiving the indictments returned into court by the grand jury, and doing other routine work under the supervision of the clerk. He had not taken the oath of office. He testified that after indictments had been delivered into court by the grand jury, he often turned them over to the assistant solicitor-general, for the purpose of having bench warrants issued on them. The regular bailiff of the grand jury testified that he never delivered any indictments to Gilbert, but always turned them over to the clerk or his deputy. The theory of the State, under this testimony, was that the indictment against the defendant had been returned into court by the regular bailiff of the grand jury, and delivered by him to the clerk or to the clerk’s de facto deputy, and had then come into the possession of the assistant solicitor-general. After hearing the -evidence the trial judge overruled the plea; and his decision is assigned as error.
   Powell, J.

1. The office of deputy clerk of the superior court exists; therefore one may de facto hold that office who, because of a failure to take the oath, is not entitled to hold it de jure. The acts of such de facto officer are as effective in matters either civil or criminal as if he were regularly qualified. Civil Code, § 4359; Political Code, § 242; Ballard v. Orr, 105 Ga. 195 (31 S. E. 554); Gunn v. Tackett, 67 Ga. 725; Herrington v. State, 103 Ga. 318 (29 S. E. 931); Brooks v. Rooney, 11 Ga. 423; Allen v. State, 21 Ga. 219 (68 Am. D. 457); Tietjen v. Merchant’s Bank, 117 Ga. 503 (41 S. E. 730).

2. The evidence not being such as to preclude a finding that the indictment had been returned into court and delivered to the clerk or to his de facto deputy, a finding by the trial judge, acting by consent as trior, against a plea in abatement alleging to the contrary, will not' be disturbed. Judgment affirmed.

E. K. Overstreet, for plaintiff in error.

T. J. Evans, solicitor, contra.


text:
    686.
    Zeigler v. The State.
    Accusation of misdemeanor, from city court of Sylvania —Judge Boykin. June 10, 1907.
    Submitted October 7,
    Decided October 14, 1907.

      E. K. Overstreet, for plaintiff in error.

      T. J. Evans, solicitor, contra.
   Hill, C. J.

1. Where it appears, from an inspection of the minutes of the ■ superior court, that a named person was selected as bailiff of the grand jury, a presumption arises that, as such bailiff, he was duly sworn and qualified to act in that capacity. Bird v. State, 53 Ga. 603.

2. There is no law requiring the bailiff of the grand jury to be sworn in open court and the fact entered on the minutes of the court. The solicitor-general - can properly administer the oath to him in open court or before the grand jury. Penal Code, § 798, par. 3.

3. A member of the grand jury, who was present and saw and heard the oath administered to the bailiff in open court, is competent to prove that fact. Elliott v. State, 1 Ga. App. 113 (57 S. E. 972).

Judgment affirmed.


text:
    689.
    McDONALD v. THE STATE.
    1. The courts will judicially recognize that the word “dollar” is the money unit of the United States of the value of one hundred cents, and will also recognize the different kinds and denominations of the currency issued by the United States.
    2. The courts judicially know that the term “greenback” is the popular name used to designate a certain species of the currency of the United States.

      3. The description of the property stolen in an accusation for larceny as “ninety dollars of the lawful currency of the United States of America” is sufficiently proved by evidence that the money was in ten and twenty dollar bills; that one of the bills had the word “gold” on it and the rest of the money was “greenback.”
    4. The evidence required the judgment rendered, and there was no error of law.
    Certiorari, from Baldwin superior court — Judge Lewis. June 8, 1907.
    Submitted October 7,
    Decided October 14, 1907.

      Kenan & Crawford, for plaintiff in error.

      J. E. Pottle, solicitor-general, Carl Vinson, contra.
   Hill, C. J.

The plaintiff in error was tried by the judge of the county court of Baldwin county, without a jury, on an accusation charging him with simple larceny. He was adjudged guilty, and thereupon petitioned for a writ of certiorari; his petition was sanctioned and the writ granted. On the hearing of the certiorari by the judge of’the superior court, the same-was overruled; and to this judgment error is assigned.

There is but a single question made by the record for the decision of this court. Was the property alleged to have been stolen sufficiently proved as described in the accusation? The accusation describes the property feloniously taken and carried away as “ninety dollars of the lawful currency of the United States of America of the personal goods of one Jordan Lord of the value of ninety dollars.” The evidence pertinent to said allegation and descriptive of the property stolen is as follows: The prosecutor testified: “This money [referring to the stolen money] was in ten and twenty dollar bills. I counted it, and there was ninety dollars in it.” This money was given me in payment of a check on the Merchants. and Farmers Bank at Tennille, at said bank. This money was “in «my pocket-book, a black leather book, with ‘Merchants and Farmers'Bank of Milledgeville’ stamped on it. . I don’t know just what kind of money was in the book. It was. paper bills, tens and twenties, such as I have used every two weeks for the last three years and passed as money. > I never read any of the bills, except the figures on them showing the amount of each bill, and do not know whether they were issued by the United States government or the Bank of England, or any other bank. All I can say about.that is that it was the kind of money that I have gotten from banks and used, and other people have used. It was worth ninety dollars.” Another witness described the money as follows: “I counted the money twice. There was ninety dollars in all, three twenty-dollar bills and three ten-dollar bills. One of the bills had ‘Gold’ on it; the rest of it was greenback.”

It is well settled that the accusation need not have alleged that the property or money stolen was lawful currency of the United States; yet if alleged, the description must be proved as laid. Watson v. State, 64 Ga. 61; Fulford v. State, 50 Ga. 591. “If a necessary allegation is made unnecessarily minute in description, the proof must satisfy the description as well as main part, since the one is essential to the identity of the other.” 1 Bishop’s New Criminal Procedure, § 485. See Clark’s Crim. Procedure, 182. In our opinion, the proof sustained the allegation as laid in the accusation. In other words, we think that the evidence sufficiently shows that the property alleged to have been stolen was lawful currency of the United States of America. The prosecutor described the property stolen as ninety dollars in money, in ten and twenty-dollar bills, such as he had used every two weeks for three years and passed as money, the same kind of money that he had gotten from banks and used, and other people had used. The courts will judicially recognize that the word “dollar” is the money unit of the United States, of the value of one hundred cents. The word “dollar” imparts to the common understanding the meaning of a thing of value; and when the charge is that the defendant stole ninety dollars in lawful currency of the United States, it means, by common understanding, that that amount of money in coin, banknotes or notes issued by the government of the United State, was stolen by him. Leonard v. State, 115 Ala. 80 (22 South. 564). The courts also will judicially recognize that among the denominations of currency issued by the government of the United States are $10 and $20 treasury notes and national bank notes.

Under the allegations of the accusation, the currency in question might either have been coin or notes or bills issued by authority of the United States. Under the evidence, it is definitely shown that the currency in question was either notes or bills issued by national banks of the United States, or treasury notes of the United States. It matters not which, for both are lawful United States currency.' No money of the denomination of $10 and $20 bills is current in and circulates throughout the United States as a medium of trade except the foregoing. The evidence is that these bills were procured at a bank and were similar to the money which had been used by the prosecutor for years, as well as by other people.

There can be but one rational conclusion from the foregoing evidence that the $90 stolen was lawful currency of the United States. Another witness describes the money as “three twenty-dollar bills and three ten-dollar bills. One of the bills had ‘Gold5 on it; the rest of it was greenback.” The term “greenback” is a popular name applied to all United States treasury notes. This being the case, it is as certain in the description of the property stolen as if the phrase “treasury notes” had been used. Hickey v. State, 23 Ind. 21. United States notes are commonly known as “greenbacks.” United States v. Howell (C. C.), 64 Fed. 110. In an indictment which alleges the larceny of eighty dollars in money consisting of ten-dollar bills and twenty-dollar bills, currency of the United States of America, if the evidence shows that the money stolen consisted of “greenbacks,” without any other description, there is no variance. Gady v. State, 83 Ala. 429 (3 So. 429); Levy v. State, 79 Ala. 259. Where the indictment charged larceny of treasury notes, it was held sufficient to prove that the property stolen was “greenbacks.” Hickey v. State, 23 Ind. 21. Treasury notes of the United States, or, in common parlance, “greenbacks,” are lawful currency of the United States, and a legal tender in the payment of all debts, private -or public. Act of Congress, May 31, 1878, c. 146 (20 Stat. 87, U. S. Com. St. 1901, p. 2397); Legal tender case, 110 U. S. 421 (28 L. ed. 204, 4 Sup. Ct. 122).

We think also that the fact, as testified to, that one of the ¶ bills had the word “Gold” printed on it, strongly indicated that it was a “Gold certificate,” or lawful currency issued by authority of tbe United States. Besides, the coiirt judicially knows that treasury bills, or greenbacks, and gold certificates, as matter of law, are, prima facie, of commercial'value equal to that imported by their face; but there was both allegation and positive proof that these bills were of the value of ninety dollars. In short, we are clearly of the opinion that the evidence in this case sufficiently established the allegations made in the accusation, that the money stolen was lawful currency of the United States. To hold otherwise would be absurd, and, under the undisputed facts in this ease, a palpable miscarriage of justice. The judgment the lower court in overruling the certiorari is therefore affirmed.

Judgment affirmed.


text:
    718.
    Waller v. The State.
   Hill, C. J.

1. The right of formal arraignment and plea will be conclusively considered as waived, where the defendant goes to trial before the jury on the merits, and fails, until after verdict, to bring to the attention of the court that he has not been formally called upon to enter a plea to the indictment. Pol. Code, § 10; Hudson v. State, 117 Ga. 704 (45 S. E. 66); Bryans v. State, 34 Ga. 323.

2. The unauthorized separation of the jury will no't of itself require a new trial. Prejudice must have resulted from such separation; and where it is affirmatively shown that the jurors who temporarily separated themselves from the jury had no communication with any one upon the subject of the trial, either directly, by conversation, or individually, by hearing the observations of others, the presumption of injury arising from such irregularity would be sufficiently rebutted.

3. Where, pending the trial of a misdemeanor case, two of the jurors temporarily separated from the jury, and this fact was at the time known to the defendant or his counsel, and the attention of the court was not called to the irregularity until after verdict, a new tidal will not be granted therefor, but an implied assent thereto by the defendant will be presumed. Kirk v. State, 73 Ga. 620; Carter v. State, 56 Ga. 467 (4); Eberhart v. State, 47 Ga. 598 (5).

4. The fact that the officer in charge of the jury in a criminal ease, after they had retired to consider of their verdict, permitted them to sit in a body on a veranda and eat watermelons, sufficiently near to the sidewalk to hear a discussion of the case by persons thereon, will not require a new trial, where it affirmatively appears that the jury, while on the veranda, were under the charge of the officer, and neither discussed the case themselves nor heard any one else discuss or refer to it.

5. The paramount duty of courts is to insure fair and' impartial trials. Mere irregularities which do not affect or prevent the full and complete accomplishment of this duty should not require new trials.

Accusation of assault and battery, from city court of Cairo— Judge Singletary. July 1, 1907.

Submitted October 9,

Decided October 14, 1907.

R. C. Bell, J. Q. Smith, for plaintiff in error.

6. The evidence was weak and conflicting, but the jury considered it sufficient to convict. The discretion of the trial court in refusing a new trial will not be disturbed. Judgment affirmed.


text:
    723.
    DAWSON v. THE STATE.
    1. The evidence justified the conviction.
    ' 2. The charge of the court upon the impeachment of witnesses was substantially correct; especially so in view of the fact that the testimony of the witness alleged to have been successfully impeached was corroborated.
    3. While it is improper for the judge to instruct the jury, withqut qualification, in a case of assault with intent to murder, that the offense would be complete if an assault were made which, if death had ensued, would have been murder; yet it is entirely correct for the court to. charge, “Where a defendant is under the charge of an assault with in- . tent to murder, in order to make out the charge of an assault with intent to murder, the proof made by the State must show that if the act had resulted in death the killing would have been murder. If it was not done under such circumstances that the killing would have been, murder, the offense of assault with intent to murder would not be made out.” Duncan v. State, 1 Ga. App. 118 (58 S. E. 248); Burris v. State, 2 Ga. App. 418, 58 S. E. 545.
    Indictment for assault with intent to murder, from Early superior court. Judge Worrill. May 28, 1907.
    Submitted October 9,
    Decided October 14, 1907.

      Pottle & Glessner, Park & Collins, for plaintiff in error.

      J. A. Laing, solicitor-general, R. R. Arnold, J. B. Ridley, contra.
   Powell, J.

We shall discuss only the matter referred to in the second headnote. There was an attempt to impeach one of the State’s witnesses by proof of contradictory statements. There was other testimony corroborating him as to the facts concerning which he testified. The court instructed the jury: “One of the modes of impeaching a witness [is] by proof of contradictory statements previously made by him as to matters relevant to his testimony and to the case. When a witness is successfully contradicted as to a material matter, his credit as to other matters is for the jury. But if a witness swear wilfully falsely, his testimony ought to be disregard entirely unless corroborated by circumstances or other unimpeached evidence. It is for the jury to determine the credit to be given his testimony where impeached for general bad character or for contradictory statements out of court. You will understand now, where an attempt is made to impeach a witness by proof of contradictory statements made out of court (and that is one of the modes of impeachment under the law), it is for the jury to say whether or not that attempt has been successful. If the jury believe that the attempt has been successful, the jury -ought to disregard the testimony of the witness' — if you believe that the witness was impeached for contradictory statements made out of court. If the jury do not believe that the attempt has been successful, why, then, the jury will not regard the evidence in the case so far as it relates to the impeachment of the witness.” This, we hold, correctly stated the rule. See Powell v. State, 101 Ga. 9 (29 S. E. 309, 65 Am. St. R. 277); Smith v. State, 109 Ga. 479 (35 S. E. 59). Judgment affirmed.


text:
    747.
    SIMMONS v. THE STATE.
    A conviction for larceny can not be sustained when all the circumstances are inconsistent with the existence of an animus furandi.
    Accusation of larceny from house, from city court of Americus —Judge Crisp. August 8, 1907.
    Argued October 9,
    Decided October 14, 1907.

      Blalock & Gobi, H. B. Simmons, for plaintiff in error.

      Zach. Childers, solicitor, contra.
   Powell, J.

The defendant was charged with larceny from the house, in that he stole from the house of George Oliver a bushel of oats, a bushel of corn, and ninety pounds of hay, the property of said Oliver. Oliver did not prosecute, but one Charlie Burke, an employee of his, did so. The undisputed evidence shows that the defendant was a team driver for Oliver, who was a contractor and who was engaged in having some dirt moved, at what is called in the record “the gully,” or “fill.” Oliver kept in Americus a store and warehouse. It was the duty of the defendant to feed the stock; and he had been bringing them to the stables at the warehouse and feeding them there. On the morning of the alleged larceny, he went to the warehouse, and in the presence of Oliver’s clerk or superintendent, a white employee in the store, whose business it was to overlook the feeding of the stock, took out a bushel •of oats, a bushel of corn, and the bundle of hay, put them on the wagon at the side door, and drove around to the front of the store, where Burke, another clerk of Oliver’s, stopped him and told him to put the feed back. The defendant stated, at the time, that he was taking the feed-stuff in order that he might feed the mules ■down at the “gully,” where they were working, instead of bringing them back to the warehouse at noon. This occurred in December. The defendant continued to work for Oliver, and Oliver paid him his wages. Afterwards he quit working for Oliver, and at that time was indebted to him in the sum of three dollars. After the defendant quit work thus indebted, Burke, at Oliver’s instance, so Burke says (though Oliver denied remembering this instruction), in the April following instituted this prosecution.

That an intent to steal is essential to the existence of the crime of larceny is so elementary as to require no citation of authorities. While this intent may be circumstantially proved, and may be inferred from a state of facts capable of supporting that inference, yet there must be some legal proof of it in every case. We have' no hesitancy at all in saying that the facts in this case are utterly inconclusive of any such inference. In fact, the record much more strongly indicates malice in the prosecution than it does guilt •on the part of the defendant. Mitchell v. State, 103 Ga. 17 (29 S. E. 435); Causey v. State, 79 Ga. 564 (5 S. E. 121, 11 Am. St. R. 447). Judgment reversed.


text:
    761.
    TOMPKINS v. THE STATE.
    In tie absence of evidence to the contrary, it may be inferred that a. liquor called for and delivered and paid for as whisky is whisky, and therefore an intoxicating liquor. »
    Accusation of selling liquor, from city court of Newnan — Judge Freeman. August 26, 1907.

      Submitted October 9,
    Decided October 14, 1907.

      Robert Orr, for plaintiff in error.

      W. L. Stallings, solicitor, contra.
   Russell, J.

The plaintiff in error was indicted for the offense of selling whisky, and was convicted. The specific words of the charge were, “did unlawfully sell and barter for valuable consideration alcoholic, spirituous, malt and intoxicating liquors, and intoxicating bitters, and beer and wine.” No complaint is made of any error in the admission or rejection of evidence, or in the charge of the court. Only one question is raised by the record. Is the evidence sufficient to support the verdict? There can be but one answer to the question. The evidence was ample. One witness testified in the case. This witness testified that, he bought twenty-five cents worth of rye whisky from' Tompkins, the defendant, for cash, in Coweta county, and within two years' immediately preceding the return of the indictment (December 31, 1906). It is immaterial that the sole witness for the State testified that he told defendant that he wanted whisky, and that the defendant stated that he could get it for him; because it is undisputed that the witness saw the defendant himself, and not another, pour the liquid out of a quart bottle into a beer bottle, which was delivered to the purchaser. It is immaterial that the witness testified that he did not drink any of the whisky. The fact that the witness swore that it smelled like rye whisky might be corroborative of the already existent testimony that the fluid was whisky, but, under the indictment, it was not material for the State to show that the intoxicating liquor sold was rye whisky. It was enough if it was made to appear beyond a reasonable doubt that the defendant sold whisky. The court would take knowledge of the fact that all whisky is intoxicating; and proof of sale of whisky would conform with the allegation that alcoholic, spirituous, and intoxicating liquors were sold by the defendant. The jury may infer that a liquor is intoxicating, from its effect when drunk. Much more can they infer that a liquid, though not imbibed, is whisky, where the purchaser plainly asks for whisky and the seller furnishes it in compliance with his request. The writ of error is entirely without merit.". Judgment affirmed.


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    237.
    AMERICAN SURETY COMPANY v. WOOD.
    1. A suit carf be maintained against the surety on an administrator’s bond alone, where it appears that the principal, the administrator, is dead and his estate is unrepresented. The case is not altered if the administrator dies pending the suit. The plaintiff, at his option, may proceed against the representative of the deceased administrator’s estate and the surety jointly, or may proceed against the surety alone. •
    2. In a case where a surviving partner and an administrator are in fact one and the same person, the law presumes that any property rightfully belonging to the administrator has been placed in his hands by such surviving partner. While it is the duty of the surviving partner to first pay all partnership indebtedness, still whenever all partnership liabilities have been satisfied, if there is a surplus remaining in the hands of such surviving partner and administrator, it becomes subject-matter of administration.
    3. If, after payment of the partnership liabilities, a surplus remains in the hands of the administrator, it is liable for the year’s support regularly allowed the widow of the intestate.
    4. No sufficient reason for the grant of a hew trial appears from the assignments of error" as to the admission of evidence or the charge of the court.
    Action on bond, from city court of Dublin — Judge Burch. January 14, 1907.
    Argued March 27;
    Decided October 15,
    Rehearing denied October 23, 1907.

      Jackson & Orme, T. L. Griner, for plaintiff in error.

      J. B. Sanders, W. C. Davis, K. J. Hawkins, contra.
   Russell, J.

This case has already been to the Supreme Court. The present defendant in error Was then plaintiff in error, and the judgment of the lower court, awarding a nonsuit, was reversed upon the express ground that the evidence for the plaintiff was sufficient to take the case to the jury. Wood v. Brown, 121 Ga. 471 (3), 474 (49 S. E. 295). On the subsequent trial, which is now the subject of review, not only was every fact which appears in the former record proved, but the plaintiff introduced additional testimony. The defendant surety company also introduced witnesses. In so far as there is a conflict in the evidence, the jury have concluded the issue by their verdict; and the only question, therefore, so far as the exception that the verdict is contrary to the evidence is concerned, is, was the evidence in behalf of the plaintiff sufficient to authorize the verdict? If it was, and if the judge of the city court did not err in permitting the plaintiff to strike the principal and proceed alone against the surety on the bond (The American Surety Company), then the judgment overruling the motion for new trial was right. If it be true either that the court erred in allowing the case to proceed, against the surety alone, or that the evidence was insufficient to establish a breach of the bond, his judgment should be reversed. This summary leaves out of immediate consideration the exceptions taken to. the charge of the court, which we reserve to a later portion of our decision. Of course, so far as any of the points now involved were determined by the decision of the Supreme Court, they are concluded; and hence we might perhaps omit any consideration of the sufficiency of the evidence. Upon the same facts that appear in the record now before us, the Supreme Court held, when the ease was before -it, that the evidence was sufficient to go to the jury; from which it follows that if such evidence was not rebutted and disproved to the satisfaction of the jury, the plaintiff would be entitled to recover, and, for that reason, a new trial could not have been granted upon that ground.

Counsel for the plaintiff in error insists that his motion to dismiss the petition should have been sustained, because the action could not proceed against the American Surety Company, the security on the administrator’s bond, alone. Since the former trial of this ease, as appears from the record, the administrator, E. E. Brown, having died, his death was duly suggested of record. So far as appears, there was no administration upon his estate; and at the trial the plaintiff announced that he elected to proceed against the surety alone, without making the estate of the said E. E. Brown a party to the litigation. The surety company objected thereto, and moved to dismiss the suit. The court overruled the motion to dismiss, and proceeded with the trial; and the defendant filed and the court certified exceptions pendente lite thereto, as follows: (After stating the case.) “The death of E. E. Brown, one of the defendants in the above-stated case, the administrator of the estate of A. H. Brown and the principal in the bond signed by the American Surety Company of New York, on which this suit is based, having been suggested of record, and the estate of E. E. Brown, deceased, not having been made a party to this action, defendant moved to dismiss the petition of the plaintiff, upon the ground that the suit could not proceed against the American Surety Company, surety; which motion the court overruled; to which ruling the defendant, the American Surety Company of New York, hereby excepts, and assigns the same as error, and prays that these, its exceptions, be certified by the court and entered on the minutes.” We find no error in this ruling. Unquestionably, if the administrator had died before the plaintiff had begun his suit, the plaintiff could have instituted his action on the bond against the surety alone; and the right to proceed against the surety alone arises whenever the death of the principal on the bond or the fact that the principal’s estate is unrepresented gives rise to such difficulties, delay, or inconvenience as sections 3398 and 3601 of the Civil Code were expressly intended to prevent. Electing to proceed against the surety alone is the same (certainly in its effect upon such surety in relation to his rights as against the principal) as if the principal had not been joined in the suit in the first instance. This being true, we are of opinion that the exception filed pendente lite is wholly without merit. The exceptions stated in §§3398, 3501, under which the surety may be sued alone (such as the removal of the administrator from the State, his death, or the fact that his estate is without representation), as pointed out by Judge Bleckley, in Giles v. Brown, 60 Ga. 658, are recognized and provided for the benefit •of the usees or beneficiaries of the administrator’s bond; and when the necessity arises, the remedy may be applied. Civil Code, §§ 3398, 5041.

Learned counsel for the plaintiff in error insists that the surety •on an administrator’s bond can not, in the first instance, be sued alone for its breach; that the principal or his representative must be joined as a party defendant. Counsel construe §3399 as limiting §3398, and as affording a protection to the surety. To quote from counsel’s brief: “Though he may be sued with his principal in the first place in the action, he is entitled still to have his principal’s property first exhausted in such an action, before his ■can be levied upon.” We hold that §3398 and §3399 have no ■connection with each other, and that each is applicable to a different state of facts. The first section is as follows: “The administrator and his sureties shall be held and deemed joint and several obligors, and may be sued as such in the same action, and if ihe administrator is beyond the jurisdiction of this State, or is dead, and his estate unrepresented, or is in such position that an attachment may be issued against him, the sureties, or any one or more of them, may be sued. No prior judgment, establishing the liability of the administrator for a devastavit by him, shall be necessary before suit against the sureties on the bond.” The purpose of this section is merely to deal with the relation of the principal and the surety on the bond as it affects those entitled to its protection. It puts principal and surety in the same class (as joint obligors), and then, under certain circumstances, virtually applies the rule of §5041. Section 3399 is as follows: “In all cases of judgments recovered against the administrator and his sureties, the execution issued shall be first levied on the property of the principal, and no levy shall be made on the property of the sureties until there is a return of nulla bona as to the principal, unless the plaintiff in fi. fa..shall 'file with the levying officer an affidavit that the surety is actually removing or secreting his property so as to avoid the payment of such judgment.” Manifestly it applies only to those cases where (the principal not having died, or his estate being represented, or not having subjected himself to attachment or not having left the State), the plaintiff was compelled to sue the-principal and surety .together, and -has obtained judgment against both. In such a case it provides that the effects of the principal shall be exhausted before the surety can be attacked. Section 3399 is for the benefit of the surety as against his principal. It has no reference to the plaintiff. Section 3398 is for the benefit of the plaintiff in the action on the bond. It is not concerned with lightening the burden the surety has assumed.

The court properly refused to direct a verdict for the defendant. Indeed, to have done so • would have been manifestly erroneous. The evidence for the plaintiff, in any view of the case, showed the receipt by the administrator of assets in excess of his disbursements.

Exception is taken, in the second ground of the motion, to the admission of the testimony of Judge Wood, to the effect that R. E. Brown had made returns as administrator, and that these returns were filed but were withdrawn; the objection to this testimony being that the entries thereon were the best evidence as to whether or not returns were made to the court and then withdrawn. The facts that the returns were filed and withdrawn, if true, were substantive facts, even if it bad not appeared from the evidence, without contradiction, that the returns were withdrawn by counsel of record of the plaintiff in error, and were presumably in his possession.

The objection to the testimony to the effect that the witness had bought a horse from E. E. Brown, the principal on the bond, but that the said principal had told him that the horse was the property of A. H. Brown, and that he paid $40 of the purchase-price to R. E. Brown, after the death of A. H. Brown, was properly overruled. The objection urged was that the statements of R. E. Brown, the principal on the bond, made prior to the death of his intestate and before giving the bond of the American Surety Company, are not admissible to charge the security. In our opinion' 'it was certainly competent for the plaintiff to prove, by the admissions of R. E. Brown, that the debt due on the horse at the-time of A. H. Brown’s death was a part of the property of the intestate, unaccounted for, in the hand of the administrator whose bond was secured by the obligation of the American Surety Company. “Declarations of a person since deceased, against his interest, and not made with a view to pending litigation, are admissible in any case.” Massee-Felton Lumbar Co. v. Sirmans, 122 Ga. 297 (50 S. E. 92). This ruling also disposes of several other exceptions in the record.

In the 4th ground of the motion for a new trial, objection is made to testimony offered for the purpose of showing the state of the partnership said to exist between E. E. Brown (the administrator) and A. H. Brown, his intestate, the value of the property owned by the partnership, and that the partnership owed only a very small amount of partnership debts. The evidence was objected to, on the ground that it, was inadmissible, because irrelevant, and can not be used to bind the surety; the argument being that the bond was given to cover the liability of E. E. Brown as administrator, and not as surviving partner. We think the court did right in overruling the objection and in admitting the testimony. While it is unquestionably true that the administration of partnership property falls upon the surviving partner, and that it is his duty to first pay all partnership .indebtedness, still whenever the point has been reached that the partnership owes no ■debts, — when all liabilities have been satisfied, — the surviving partner should turn over to the administrator the interest of the deceased in the partnership property. In this case the surviving partner and the administrator being one and the same person, it would be presumed that as soon as the debts were paid, the interest of the surviving partner, whatever it might be, would immediately pass to the administrator, be in his hands, and be subject to the year’s support of his intestate’s widow.

The objection to the testimony of W. E. Hudson was properly overruled, for the reasons just stated above. This witness testified to an admission of the administrator that the notes and accounts of E. E. and A. H. Brown amounted to between $2,200 and $2,300, and they were worth $1,700 or $1,800. The testimony that the notes amounted to $2,200, in view of the ruling in Adkins v. Hutchings, 79 Ga. 261 (4 S. E. 887), would not have charged the administrator; but the admission of the administrator that these choses in action were worth $1,800 was competent to do so.

The sixth ground of the motion for new trial complains of the refusal of the court to charge the jury in accordance with certain requests submitted by counsel for the plaintiff in error. Upon examination of the charge as delivered by the court, we find that the instructions requested, so far as applicable, were given to the jury. The latter portion of the first request to charge, in so far as the court was requested to instruct the jury that “if the administrator came into possession of property, but disposed of it prior to the filing of proceedings for the year’s support and the entering of the judgment, no breach of the bond has appeared, and you must find for the defendant,” was not a statement of the law. If the administrator, in the legal disposition of the property, legally and properly disposed of it, then and only then could it be said that there was no breach of the bond. The court did not c-hfrge the principle, requested-by the plaintiff in error, that the inventory of the administrator is not sufficient evidence to charge him, and the request to thus charge the jury was properly refused. When this case was before the Supreme Court it was expressly held that “His inventory of assets as belonging to his intestate puts the burden on him to show its incorrectness.” This is a distinct holding, so far as this ease is concerned (but no further), that the inventory is sufficient to make a prima case of such assets in his hands as may be shown by the inventory.

We find no error in the extract from the charge complained of in the 7th ground, which would authorize the grant of a new trial. In the brief of learned counsel of plaintiff in error our special attention is directed to the following sentence of the charge: “If you should find that this was partnership property that went into his hands, then he had the right to apply a sufficient amount of the property to the payment of the debts of the firm.” Counsel complained that this charge “leaves the jury as judge as to whether or not partnership property shall be used in the payment of partnership debts, when it is a matter not in their discretion.” We do not think the exception as stated is well taken. The judge should have told the jury that it was the duty of the administrator to apply a sufficient amount, etc., instead of instructing them that “he had the right to apply,” etc. The charge seems to leave it discretionary with the surviving partner (who was also administrator) as to whether he paid the partnership debts first, and would be subject to that objection. But a minor error in the charge will not require the grant of a new trial in a case where’ the verdict rendered is demanded by the evidence. The judge very inaptly told the jury, in effect, that the surplus, after paying A. H. Brown’s one-half interest due on the debts, might be subject to the year’s support. But we think it was' clear to the jury, as it is to us, that as the property was jointly owned by R. E. and A. H. Brown, and, as the inventory was a return of A. H. Brown’s half interest in the partnership property, that the jury were not misled by this expression. Indeed, when it is considered in connection with the other portions of the charge, the jury could not fail to understand that what the judge really meant was that deducting from A. H. Brown’s half interest in the partnership assets whatever might be one half of the total indebtedness of the firm, after all the debts were paid, would enable them to ascertain as to whether there was really any surplus of A. II. Brown’s undivided half interest remaining in the hands of the administrator. The legal calculation would be: to take the assets of the partnership as a whole, deduct all of the indebtedness as a whole, and divide the remainder, if any, by two; and the result would be the surplus, subject to the widow’s j^ear’s support. Yet, as a matter of mathematics, the result reached, in dollars and cents, would be exactly the same.

We have carefully reviewed the entire evidence, and have no hesitation in saying that the jury would have been authorized, under the admissions of the administrator, and the evidence submitted as to the value of his intestate’ property, deducting, every credit proved by the defendant suretj', to find a greater surplus in the hands of the administrator, placed there after the payment of every partnership debt which the evidence disclosed, and to find the surety liable for a larger amount than that of the verdict.

Judgment affirmed.


text:
    672.
    KOLMAN v. THE STATE.
    The evidence is legally insufficient to justify the conviction.
    Indictment for misdemeanor, from Chatham superior court— Judge Cann. March 14, 1907.
    Submitted October 7,
    Decided October 15, 1907.

      Gordon & Charlton, for plaintiff in error.

      W. W. Osborne, solicitor-general, contra.
   Powell, J.

Mrs. Holman and one Johnson were jointly indicted, tried, and convicted of the offense of keeping open a iippling-house on the Sabbath. Mrs. Holman alone excepts. The testimony upon which the conviction against Mrs. Holman rests is substantially as follows: Mrs. Holman ran a barroom and grocery store at the corner of Bryan and Jefferson streets in Savannah. One Sunday a man named Green saw two men standing at a gate to the rear of her premises, and he approached them and said he wanted some whisky. Johnson took the money and went off across the yard in.the direction of the bar, and soqn came back with a pint of whisky, which he delivered to Green. The witness was unable to say-whether he entered 'the bar or not. So far as he knew, the bar was closed. Mrs. Holman made a statement in which she said that her bar and grocery store were closed throughout the entire Sabbath, and that she had the key in her pocket. Johnson made a statement in his behalf, in which he said that he had the whisky on his person, and that, though he worked for Mrs. Kolman, lie did not open the bar. The State, in rebuttal, proved that Johnson, after his arrest, admitted that he went into the bar- and got the whisky.

As a matter of law the barroom was a tippling-house. If the room was opened on the Sabbath day, even for a moment, by Mrs. Kolman, or by her clerk or agent with her consent, actual or tacit, she was guilty. Klug v. State, 77 Ga. 737, and cases cited. If it was opened by her clerk or employee, the burden was on her to show both lack of knowledge and lack of consent as to the fact. Klug’s case, supra. But where is the legal evidence that the.room was opened, or that Johnson was her employee? •Johnson’s statement that he was her employee, and his admission that he had entered, was evidence solely against him, and has no probative value against her. Berry v. State, 122 Ga. 429 (50 S. E. 345). Johnson was properly convicted; but as to Mrs. Kolman, the Scotch verdict of “Not proven” needs be entered.

Judgment reversed.


text:
    676.
    Tharpe v. The State.
    Accusation of gaming, from city court of Ashburn — Judge Hawkins. March 25, 1907.
    Submitted October 7,
    Decided October 15, 1907.

      R. L. Tipton, J. H. Tipton, for plaintiff in error.

      J. A. Comer, solicitor, contra.
   Powell, J.

It is essential to a conviction that the proof show that the offense was committed prior to the returning of the indictment or the filing of the accusation. Davis v. State, 92 Ga. 458 (17 S. E. 336).

Judgment reversed.


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    679.

      ROSENBLATT v. THE STATE.
    'There was no error in deciding adversely to the plea in abatement.
    Certiorari, from Ben Hill superior court — Judge Whipple. July 13, 1907.
    Submitted October 7,
    Decided October 15, 1907.
    The defendant was indicted by the grand jury of Ben Hill county, for illegally selling liquor. The case was transferred, for trial, to the city court of Fitzgerald. The defendant filed a plea in abatement, which alleged, among other things, that the- indictment against him was void, because: (1) The jury commissioners, appointed to select the grand jury which found the indictment against him, did not, before entering upon their duties, subscribe the oath required by the Penal Code, §814; and (2), under the act creating the Cordele circuit, only the judge of the superior court of Ben Hill county was authorized to draw the grand jurors for the spring term, 1907, of that court. The evidence disclosed that the ordinary administered the prescribed oath, to the jury commissioners before they entered upon their duties, but that the oath was not subscribed by them until two or three-days later. As to whethér or not the subscription of tire oath took place before or after the final selection of the grand jury, there was some conflict; but there was evidence from which the court could find against the defendant as to that point; for two of the jury commissioners testified that “none of the names of the persons who were finally selected as grand jurors and whose names-were put in the grand-jury box had been selected prior to the time that the oath of jury commissioners' was subscribed to by the jury commissioners, the work done prior to that time being the work of going-over the tax-digest for the purpose of getting the names of all the poll-tax payers of the county, from which the names of the grand jury were to be selected.” After hearing the evidence, the judge directed a verdict against the plea in abatement; but the assignment of error is sufficient only to raise the same question as if the jury had found the verdict without the direction. See Dickenson v. Stults, 120 Ga. 632 (48 S. E. 173). The case went to trial on the merits, and the defendant was convicted. He carried the case to the superior court by certiorari; and the decision of the judge, on the return of the writ, being adverse to him, he assigns this decision as error.

      E. W. Ryman, E. Wall, for plaintiff in error.

      W. F. George, solicitor-general, A. J. McDonald, E. D. Graham, contra.
   Powell, J.

(After stating the facts.)

The judgment of the trial court overruliiag the certiorari will be affirmed, for several reasons. First, there having been an issue of fact as to whether the jury commissioners drew the list before or after they subscribed the oath, the finding of the trial court as to that is final. Further, if they were not de jure officers, their acts as de facto officers were not invalid. Ledbetter v. State, ante, 631 (58 S. E. 1106). Also, “the official acts of an officer are none the less valid for his omission to take and file the oath, unless in cajses when so specifically declared.” Political Code, § 242. And they having actually taken the oath, their subscription' of it related back. McLain v. State, 71 Ga. 279; Roby v. State, 74 Ga. 812. While, under the act creating the Cordele circuit (Georgia Laws 1906, p. 52), the judge of the superior court had the power to draw the grand jury, this in np wise interfered with the power of the jury commissioners, under the general law.

Judgment affirmed.


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    698.
    CARLISLE v. THE STATE.
    . In a prosecution for cheating and swindling through the making of false ' representations as to the ownership of property, an allegation in the indictment that the defendant knew that the representations made by him were false is a -material allegation, and must be supported by the proof. As to this element of the charge in the present ease, the testimony, which was circumstantial only, was too inconclusive to justify a conviction.
    Accusation of cheating and swindling, from city court of La Grange — Judge Harwell. July 29, 1907.
    Submitted October 9,
    Decided October 15, 1907.

      E. T. Moon, D. B. Whitaker, for plaintiff in error.

      Henry Reeves, solicitor, contra.
   Powell, J.

The indictment charged that the defendant “unlawfully did defraud and cheat W. A. Holmes in the sum of one hundred and twenty-five dollars, by reason of the following deceitful means and artful practice, to wit: . . said Carlisle and Burpee represented to said Holmes that said Carlisle owned a certain red-colored horse mule, for the purpose of selling said mule to said Holmes; and, relying upon said representation being true, he, the said Holmes, bought said mule from said Carlisle and Burpee, and paid therefor the sum of one hundred and twenty-five dollars, when said representations were false, and said Carlisle and Burpee then and there knew were false, and intended to be false, the truth being that said Carlisle did not own said mule, which truth said Carlisle and Burpee then'and there well knew; and, because of said false and fraudulent representations, - said Holmes sustained loss as aforesaid,”' etc.

The evidence for the State shows that the defendant and one Burpee came to town leading the mule behind a buggy. The prosecutor asked the defendant what he would take for the'mule, and made him an offer for it. The defendant said that he had bought the mule out of a drove, and that no one else had owned it since. He said that it was his own mule. In response to an inquiry as to the mule’s eyes, he said, that he had worked the mule on his farm; that he bought it two or three years ago. Burpee ■also told the prosecutor that he had better buy the mule, that it would be a good trade; and finally the trade was closed at the original offer of $125. The prosecutor then delivered the mule into the care of one Cameron. About twelve months latqr, two men, one of them claiming to be the sheriff of an adjoining county, came and got the mule from Cameron. One Hendricks then testified that he was the man who'went with the sheriff to Cameron’s and got the mule; that it was his mule; that, shortly before the time the defendant sold the mule to the prosecutor, the mule had disappeared from -his home in the adjoining county; that he did not know how he got away; that he had mortgaged the mule to Burpee and also to his cousin; that the mule was taken from Cameron’s under the foreclosure _ of the mortgage which he had given his cousin; that while he did not know how the mule got away from his place, yet it was taken away without his consent; that he got home one night about eleven o’clock and found the lock to his barn broken and the mule gone. This was all the evidence for the State. The defendant stated that he bought the mide from Burpee out of a drove which Burpee had, and gave him $100 for it; that he did not know anybody had an interest in the mule or that anything was wrong with it; that he bought it in good faith and believed that it was his mule; that he told the prosecutor that he had bought the mule out of Burpee’s drove, which was a fact.

In a prosecution of this kind, knowledge cn the part of the deiendant that the representation made by him is false is material; a mere false statement by the defendant, accompanied by loss to the prosecutor, is not sufficient. While such knowledge may be proved indirectly or inferential^, yet the burden is upon the State to make it appear; and if the facts proved are consistent— reasonably consistent — with the defendant’s lack of knowledge, he can not be convicted. The defendant, it is true, did state that he owned the mule, but he stated, in connection therewith, that he bought it out of a drove, and, according to the undisputed testimony, bought it out of Burpee’s drove. Burpee was present when, this statement was made, and, so far as the record shows, made no denial of this fact. While the statement of the defendant that he had owned the mule for two or three years was false, and, under tbe testimony, probably knowingly false, yet the length of time that he owned the mule was not material, in the state of his title. •And while ordinarily the falsity of this statement might have had some probative value as tending to show a fraudulent design on the defendant’s part, for the purpose of concealing the true state of his title, yet in the present instance this inference can not be legitimately indulged; because this statement as to the length of time he had owned the mule was not made in response to any inquiry as to the state of his title, but in response to an inquiry in regard to a defect in the eyes of the mule. If the prosecution, had been based upon any fraud in connection with the condition of the mule’s eyes, this statement would have been material and of strong probative value; but it was not so in the present case. There was no proof that the defendant did not buy the mule out of Burpee’s drove, just as he said he bought it, that he paid $100 for it, and that he believed he owned it. That he did buy it out. of Burpee’s drove is corroborated somewhat by the fact that Bur-pee had a mortgage on the mule, as well as by the fact that, while the mule was taken from Hendricks’ lot, in Hendricks’ absence, he did not appear to set up the contention that the mule had been stolen from him; and this fact would further indicate that he recognized that the mule had probably been taken by Burpee under the mortgage, the act of seizure being made in Hendricks’ absence. If the State had shown that the defendant did not buy the mule from Burpee’s drove, or had shown circumstances indicating that he and Burpee had conspired and, colluded together to sell a mule which he knew to have been unlawfully taken by Burpee, a conviction could be sustained; but not so in the present state of the record. See Crawford v. State, 117 Ga. 247, 252 (4) (43 S. E. 762). Judgment reversed.