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

text:
    10383.
    DAVIS v. THE STATE.
    1. Grounds of the motion for a new trial incomplete within themselves and too indefinite will not be considered.
    2. The instruction to the jury that where a larceny is shown and a person is found to have been in recent possession of the stolen goods, “that possession creates a presumption of fact which would authorize the jury to convict, if the possession is not satisfactorily explained to the jury,” was substantially correct, in connection with added instructions as to explanation of the possession and rebuttal of 'the presumption.
    3. The law which prohibits a judge from expressing or intimating to the jury his opinion as to what 'has been proved was not violated by the instruction that if the jury believed the defendant’s explanation, they would not be authorized to find a verdict of guilty “on the fact that he was found in recent possession of the property shown to have been stolen;” the fact that the property was stolen and the fact that he was found in recent possession of it being shown by the evidence and not being contradicted by anything in the evidence or in his statement at the trial.
    4. The requirement as to instructions on circumstantial evidence where it is sought to show guilt by such evidence alone was met by the instructions given.
    5. The conviction of the defendant was authorized by the evidence.
    Decided June 27, 1919.
    Rehearing denied July 16, 1919.
    Indictment for larceny; from Liberty superior court-rJudge Sheppard. February 17, 1919.
    Application for certiorari to review this decision was denied by the Supreme Court.

      O. G. Darsey, James B. Thomas, for plaintiff in error.

      J. Saxion Daniel, soliciior-general, contra.
   Broyles, P. J.

. The 1st, 2d, 3d, and 4th special grounds (the ' two latter grounds being erroneously numbered 6th and 7th) of the motion for a new trial, complaining of the admission of evidence, are too indefinite and incomplete within themselves to be considered by this court.

It was not error to charge the jury as follows: “Now I charge you the law concerning the recent possession: Where a larceny is shown to have been committed, that is to say, where the principal fact that a larceny has been committed and a person is found to have been in the recent possession of the goods that were stolen, why that possession creates a presumption of fact which would authorize the jury to convict, if the possession isn’t satisfactorily explained to the jury. It is not a presumption of law, but a presumption of fact.” This charge was substantially correct, and in immediate connection therewith the judge charged as follows: “[This presumption of fact] may be rebutted by any explanation which may be presented to the jury consistent with innocence that the jury may believe. Of course, where the explanation is made consistent with innocence, and the jury believes it, the fact that a person is in possession of it is no presumption that he is the person who stole the property alleged to have been stolen. Now you are the judges of the fact of the recent possession and of the explanation of that possession, that is a question for you .to determine, and the truthfulness of the explanation and all of those things are questions for you to determine. As I said awhile ago, if you believe from the evidence and the explanation, if you believe that that explanation was consistent with innocence, and you believe that explanation, if it is satisfactory to you, why then you would not be authorized to find a verdict of guilty in the case. If you are not entirely satisfied as to the explanation, you may consider that explanation along with the other testimony in the case on the question of a reasonable doubt.” Holliday v. State, 33 Ga. App. 400 (98 S. E. 386), and authorities there cited.

Complaint is made of the following charge: “All of those questions are for you to determine, but if the explanation made is consistent with the hypothesis of innocence, or with innocence, if you believe it to be true, why you wouldn’t be authorized to find a verdict of guilty on the fact that he was found in the recent possession of the property shown to have been stolen.” Under the facts of the case, conceding that the judge in this charge assumed that the cow (the subject-matter of the larceny charged) had been stolen, a new trial is not required, since this fact was established by the undisputed evidence, and not denied, but virtually treated as true, by the defendant in his statement to the jury. The undisputed evidence showed that the prosecutor’s cow had been stolen by some one, and that shortly thereafter it was found in the possession of the defendant, and there was nothing in the defendant’s statement to dispute this evidence; but his defense rested solely upon the contention that he did not participate in the theft, but had bought the cow not knowing that it was stolen property.

Under these circumstances the provisions of the so-called “dumb act” (Penal Code, § 1058; Civil Code, § 4863) were not violated by the judge in assuming that the property had been stolen by someone before it came into the defendant’s possession. Marshall v. Morris, 16 Ga. 368; Springfield v. State, 125 Ga. 281 (54 S. E. 172); Robinson v. State, 129 Ga. 336 (58 S. E. 842); Georgia, Florida & Alabama Ry. Co. v. Jernigan, 128 Ga. 501 (57 S. E. 791); Jones v. State, 130 Ga. 274 (60 S. E. 840); Taylor v. State, 135 Ga. 622 (8) (70 S. E. 337); Callahan v. State, 14 Ga. App. 442 (2) (81 S. E. 380); Wilson v. State, 15 Ga. App. 632 (5) (84 S. E. 81); Sistrunk v. State, 18 Ga. App. 42 (5) (88 S. E. 796); Gallaher v. State, 22 Ga. App. 640 (97 S. E. 97).

“While in every criminal case, where it is sought to show the guilt of the defendant by circumstantial evidence alone, the jury should be instructed and cautioned that he should not be convicted on circumstantial' evidence, unless the proven facts exclude every possible reasonable hypothesis save the guilt of the defendant, still it is immaterial what language is employed to convey this instruction. If all possible hypotheses arising from the circumstantial evidence which are favorable to the defendant be presented in concrete statement to the jury, and the jury are told that if they believe any one of these hypotheses the defendant should be acquitted, the principle above referred to would be sufficiently presented. And where, as in the present case, only two inferences can be drawn from the evidence,—the one of innocence, and the other of guilt,—and the hypothesis consistent with innocence is fully and fairly stated to the jury, and the jury are instructed that if they are satisfied that the hypothesis consistent with innocence is true, or if they have a reasonable doubt as to its truth, the defendant should be acquitted, the rule above stated is substantially complied with.” Mangum v. State, 5 Ga. App. 445 (2) (63 S. E. 543) ; Barrow v. State, 80 Ga. 191 (3) (5 S. E. 64); Richards v. State, 102 Ga. 569 (27 S. E. 726); Jones v. State, 105 Ga. 649 (31 S. E. 574); Bush v. State, 23 Ga. App. 126 (97 S. E. 554); Reynolds v. State, 23 Ga. App. 369 (98 S. E. 246). Especially is this true where the judge fully instructs the jury upon the subjects of a reasonable doubt and the presumption of innocence.

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

Judgment affirmed.

Bloodworih, J., concurs. Stephens, J., dissents.

Stephens, J.,

dissenting. The defendant was tried for the larceny of a cow. The State relied for a conviction upon the recent possession by the defendant, unsatisfactorily explained, of the cow alleged and claimed to have been stolen. Among other things, the defendant, in his motion-for a new trial, excepted to an alleged expression of opinion upon the facts by the trial judge, which the defendant contends necessitates the granting of a new trial. The excerpt complained of is as follows: “All of those questions are for you to determine, but if the explanation made is consistent with the hypothesis of innocence, or with innocence, if you believe it to be true, why you wouldn’t be authorized to find a verdict of guilty on the fact that he was found in the recent possession of the property shown to have been stolen.” It is contended that this charge was error in' that the judge stated as a fact that the property was shown to have been stolen, and also stated as a fact that the property alleged to have'been stolen was in fact found in the possession of the defendant.

While it is true, as Judge' Bleckley says in Yarborough v. State, 86 Ga. 396 (2) (12 S. E. 650), that “To declare the law applicable to a given state of facts is no expression pr intimation of opinion as to whether any of the facts referred to do or do not exist in the case on trial,” yet “when the charge of the court assumes certain things as facts, and is in such shape as to intimate to the jurJ what the judge believes the evidence to be, and that they made defendant guilty, a new trial will-be granted.” Whitley v. State, 38 Ga. 50 (4). To ascertain the true meaning of this excerpt, and to determine whether or not the expression referred to amounts to an expression of opinion, it is necessary to consider it in connection with the entire charge, and particularly with reference to all of that part of the charge dealing with presumption of guilt arising from recent unsatisfactorily explained possession of the property alleged to have been stolen. That the entire charge may be considered in properly arriving at the construction of the excerpt complained of is a sound principle of hermeneutics. See, in this connection, Hanvey v. State, 68 Ga. 615; Moon v. State, 68 Ga. 697. The only conclusion that can be drawn from a consideration of the entire charge is that the trial judge expressed and intimated, in the excerpt complained of, an opinion on the facts as claimed by the defendant. The other portions of the charge shedding light upon this question are as follows: “Now the defendant in this case, gentlemen, sets up in his defense that the particular cow alleged in this indictment was purchased by him from one John Johnson, and that his connection with that cow came about in that way,—in other words, the question of the recent possession of property shown to have been stolen, the defendant accounts for this possession by showing or undertaking to show that his possession and connection with it came about by buying it from another party. Now I charge you the law concerning the recent possession: where a larceny is shown to have been committed, that is to say, where the principal fact that a larceny has been committed, and a person is found to have been in the recent possession of the goods that were stolen, why that possession creates a presumption of fact which would authorize the jury to convict, if the possession is not satisfactorily explained to the jury. , . Where the explanation is made consistent with innocence and the jury believe it, the fact that a person is in possession of it is no presumption that he is the person who stole the property alleged to have been stolon. Now, you. are the judges of the fact of the recent possession and of the explanation of that possession, that is a question for you to determine, and the truthfulness of the explanation and all of those things are questions for you to determine. . . If you believe from the evidence and the explanation, if you believe that that explanation was consistent with innocence, and you believe that explanation, if it is satisfactory to you, why then you would not be authorized to find a verdict of guilty in the case. If you are not entirely satisfied as to the explanation, you may consider that explanation along with the other testimony in the case on the question of a reasonable doubt, and give the testimony átich weight in determining the guilt or the innocence of the prisoner at the bar, beyond a reasonable doubt. [Here follows the excerpt complained of.] All of those questions are for you to determine; but if the explanation made is consistent with the hypothesis of innocence, or with innocence, if you believe it to be true, why you wouldn't be authorized to find a verdict of guilty on the fact that he was found in the recent possession of the property shown to have been stolen. If, on the other hand, you do not believo that the explanation is the truth of the case, why then the recent possession of the goods shown to have been stolen would be a circumstance from which you would be authorized under the law to infer guilt, if not satisfactorily explained. . . Now, gentlemen, in your consideration of this case, you are to look to the allegations in the indictment, and if you find that the defendant T. Y. Davis, in the county of Liberty and State of Georgia, on the first day of April, 1917, or within four years prior to the date this indictment was found,—I say you are to look to the indictment and evidence and find, beyond a reasonable doubt, that T. Y. Davis, in the county of Liberty and State of Georgia, on the date alleged in the indictment or within four years prior to the finding of the bill of indictment, unlawfully, wrongfully, and fraudulently took and carried away, with intent to steal it, one yellow butt-headed cow of the value of $25, or some other value, the property of H. D. Quinnip, if you find all of these facts to exist under the evidence, beyond a reasonable doubt, why then, gentlemen of the jury, it would be your duty to find the defendant guilty, but if under the evidence and law as given you in charge you find that the defendant has satisfactorily explained his connection with it, you would not be authorized to find the defendant guilty. If, after considering all the facts and circumstances of the case, you have a reasonable doubt of his guilt, it would be your duty to give him the benefit of the doubt and acquit him. You may retire.” [Italics mine.]

Nowhere did the judge submit to the jury the issue whether or not the eow had been stolen. This was a most essential fact in the case. It was the corpus delicti. While the failure of the judge to so charge is not complained of, it is to be considered in determining what impression the charge must have made upon the jury, and as demonstrating the fact that the whole tenor of the charge assumed that the cow in question had, as a matter of fact, been stolen, and the jury could but infer that the judge was of the opinion that the cow in question had, as a matter of fact, been stolen. As evidence that the charge eliminated from the jury a consideration of any issue as to whether or not the cow in question had been stolen, and narrowed the consideration of the case to the question of recent possession, attention is called to the final expression in the charge, before the jury retired, in which the judge stated: “If, under the evidence and the law as given you in charge, you find that the defendant has satisfactorily explained his connection with it [with what? Necessarily the stolen cow], you would not be authorized to find the defendant guilty.” [Italics mine.]

As to what constitutes an expression of opinion on the facts, see the following from the opinion of Judge Bleckley, in Kinnebrew v. State, 80 Ga. 232, 239 (5 S. E. 59): “No doubt there is danger of intimating an opinion, or leading the jury to think that an opinion is intimated, though the purpose be only to discriminate between legal and logical sufficiency; and this danger is not lessened, but rather increased, by the fact that in most instances the one kind of sufficiency exists wherever the other does. But danger is no interdict on duty, and a charge is not erroneous for pointing out that the jury are authorized to infer one thus-and-so from another thus-and-so, provided they believe from the evidence that the first thus-and-so is established, and provided they further believe that the second thus-and-so is a reasonable and propey inference to be drawn from the first.” [Italics mine.] See also Pitts v. State, 15 Ga. App. 436 (2) (83 S. E. 673); Henderson v. State, 14 Ga. App. 672 (82 S. E. 61); Davis v. State, 91 Ga. 167 (2) (17 S. E. 292); Holtzendorff v. DeRenne, 129 Ga. 226 (58 S. E. 710); Rawls v. State, 97 Ga. 186 (22 S. E. 529); Kittles v. State, 145 Ga. 6 (3) (88 S. E. 197).

While .the defendant’s main line of defense was that he bought the cow in question from someone other than the alleged owner, and in his statement to the jury he confined himself largely to this issue, and did not expressly deny that the cow had been stolen as alleged, it is contended here that his failure thus to deny the allegation of the theft of the cow amounted to an admission on his part of the alleged larceny as a matter of fact, and that, if the trial judge intimated or expressed an opinion as to the truth of such allegation, it was harmless and the defendant cannot now complain. This contention, is untenable. When the trial judge in his charge to the jurjr expresses an opinion on what has or has not been proved, it is mandatory on this court to set the verdict aside, regardless of any view which we may entertain as to the harmless effect of the charge. Penal Code, §1098, and Phillips v. Williams, 39 Ga. 597. While it has been held that the inhibition upon the trial judge expressing or intimating an opinion upon the facts applies only to incidents where the alleged fact is in dispute and about which the parties are at issue, it has been held that in a criminal case, even though the testimony offered in behalf of conviction is undisputed and uncontradicted by other testimony, every allegation in the indictment and the evidence offered in support of it are put in issue by the defendant’s plea of not guilty. In determining whether the parties are at issue upon any alleged fact the rule in criminal cases is different from that in civil cases, due to the differences in pleading and other fundamental differences between the two classes of cases. In a criminal ease the defendant’s plea of not guilty denies every allegation in the indictment against him, as well as the case made under the evidence, though uncontradicted by other testimony. The defendant is presiuned to be innocent, and this presumption remains with him throughout the trial. His plea of not guilty and this presumption of innocence, therefore, continue throughout the entire trial to challenge and deny the case of the State alleged in the indictment and made by the evidence. Where there is no admission in judicio, an issue of fact is made upon every allegation in the indictment and the evidence offered to sustain it. In Phillips v. State, 131 Ga. 426 (62 S. E. 239), it was held: “The defendant’s plea of not guilty put in issue every material allegation in the bill of indictment charging him with the offense of murder.” In Cooper v. State, 2 Ga. App. 130 (59 S. E. 20), it was held that “A plea of not guilty by one accused of crime is an expréss contention on his part antagonistic to every fact necessary to be proved by the State in order to establish his guilt; and unless the accused admits one or more of the facts which it devolves upon the State to prove, such fact must be established by evidence. To assume that an important fact in the case on trial has been admitted, and to so instruct the jury when no such admission has been made, is reversible error.” In Southern Express Co. v. State, 1 Ga. App. 700 (58 S. E. 67), it was held that “To assume in a criminal case that the testimony for the State is the truth, though such testimony be not contradicted by evidence for the defendant, and to charge the jury that such testimony is the truth and that there is no contention to the contrary, is violative of section 4334 of the Civil Code [Civil Code of 1910, § 4863; Penal Code, § 1058], and demands a new trial. The plea of not guilty hied by the defendant is a contention on his part as to every material and essential’fact necessary to establish his guilt, and implies a denial of every such fact.”

In the case of Young v. State, 125 Ga. 584 (54 S. E. 82), the accused made a statement in which he in so many words admitted that there had been a homicide, making no reference, however, either by way of admission or denial, to the manner in which such homicide was committed, but resting his defense solely upon an alibi. The Supreme Court in that case held that “The indictment having alleged that the deceased was murdered by .the use of a gun, these were matefial and essential averments, and the defendant’s plea of not guilty put both of them in issue. There was nothing in the evidence or the prisoner’s statement, nor was there any admission by his counsel, which authorized a charge to the effect that the defendant’s contention was that while there was a homicide, and while the deceased was killed with a gun and under circumstances which may show an unlawful killing, he was not the person who perpetrated the offense, and that he did not commit the homicide or fire the gun that killed the deceased; and that the jury, would be relieved to some extent in their investigation of the questions that ordinarily arise in criminal cases. This charge requires a reversal.” From the opinion of the court, beginning on page 587, the following is taken: “The court charged the jury as follows: ‘Iiis [defendant’s] contention is that while there was a homicide, while Gus King was killed with a gun and under circumstances which may show it was an unlawful killing and was murder, that he was not the person that perpetrated the offense, that committed the homicide, that he did not fire the gun that took the life of Gus King; and you would be relieved to some extent in your investigation of the questions that ordinarily arise in criminal cases. There is no dispute in this case that the homicide was committed. There is no dispute that Gus King was killed, and killed with the gun, as charged in the bill of indictment. These facts are not disputed facts in this case. The main question for the determination of the-jury in this case, the real question for your determination, relates to the identity of the person who took the life of Gus King. The question for your determination in this ease is whether or not the defendant now on trial was the person that fired the gun, as charged in this indictment,—that took the life of Gus King.’ The defendant excepts to that charge and assigns error thereon, among other things, for the reason that there was no admission by the defendant or his counsel that the deceased was murdered, or killed with a gun, or that it was an unlawful killing. There is nothing in the record which pretends that counsel for the accused admitted on the trial the things mentioned in the charge as not being in issue. The only words in the defendant’s statement tending to admit those things are as follows: ‘Anybody that knows directly how that man was killed, they killed him. . . Aus Hardy did not know that man was killed unless he killed him himself. . . It is impossible for me to tell how that man was killed.’ The most that could be said of these words is that they could be construed into an admission that the defendant was killed. There is no admission that the killing was under such circumstances as to make the homicide murder, nor do they admit that the homicide was accomplished by the use of a gun. It was alleged in the indictment that the deceased was murdered by the-use of a 'gun.’ These were material and essential averments in the indictment. The defendant’s plea of not guilty put both of them in issue. Being placed in issue there was no way to avoid the issue, except by withdrawal by the defendant personally, or by his counsel for him. There was no such withdrawal; and the court in so instructing the jury as to -withdraw from them the determination of those issues committed error. The court may have been of the opinion that the evidence in the case was overwhelmingly against the defendant on these issues, but such would not have authorized him to withdraw the issues from consideration of the jury. If the court could withdraw these issues, there is no principle which would prevent the withdrawal of any other issue in the case. It may as well be said that all issues may be withdrawn, and that where the court thought the evidence demanded the conviction of the defendant, the court could direct a verdict of guilty. It will hardly be contended that this could be done in any criminal case, in the absence of a statute. Certainly it could not be in a felony case, with or without a statute.”

While there was a dissent in the Young case just referred to, the dissenting opinion called attention to the defendant’s statement, wherein he said that ''that man [meaning deceased] was killed. They killed him;” and in the opinion it was said that “the evidence, while circumstantial, pointed to the accused as the perpetrator with a certainty which authorized the verdict of the jury,” and that “this is the third conviction of the defendant for the same offense.”

In Ryder v. State, 100 Ga. 528 (9) (28 S. E. 246, 38 L. R. A. 721, 62 Am. St. R. 334), the Supreme Court held: “The court in some of its instructions referred to the homicide as 'the act which the accused had committed’ and thus at least intimated an opinion that the killing was done by him; and although many of the requests to charge practically conceded that this was true, yet as it was not distinctly admitted that the accused did commit the homicide, expressions embracing such language as that above quoted should not have been used.” While the charge there was held to be error, the court held that it was not sufficient to authorize the granting of a new trial, since counsel for the accused had, in a written request to charge, which was refused, sought to induce the trial judge to use the language complained of. See page 537. The judgment was reversed, however. In that case apparently no statement was made by the defendant. This fact, however, does not affect the principle of law invoked. The Young and Ryder cases have never been overruled or departed from by the Supreme-Court. The civil cases, for reasons already stated, are not authority upon this proposition. Besides, the cases of Springfield, Robinson, and Taylor, relied on in the majority opinion, are cases in which the defendant in his statement made some declaration that was equivalent to an admission of the alleged fact concerning which the trial judge was alleged to have expressed or intimated an opinion. See Springfield v. State, 125 Ga. 281 (54 S. E. 172); Robinson v. State, 129 Ga. 336 (58 S. E. 842); Taylor v. State, 135 Ga. 622 (70 S. E. 237). In Jones v. State, 130 Ga. 274 (60 S. E. 840), it was held, that, as the defendant’s own evidence proved a certain fact, he could not complain that the judge, in the charge to the jury, stated such fact as true. Here there was also a dissenting opinion. The reasoning contained in the dissenting opinion, on page 288, is, in my opinion, the better view.

There was nothing in the defendant’s statement in the case at bar that can be construed into an admission that the cow had been stolen. He did state something to the effect that he had some suspicion about the title to the cow when he bought it, but this can hardly be considered as admitting a larceny. Neither did-the defendant’s evidence prove larceny. The instant ease therefore does not fall within the ruling of the majority of the court in Jones v. State, supra.

Since there was an issue made by the pleadings, -which was not removed by an admission upon the part of the defendant or his counsel, or defendant’s evidence, upon the question whether or not the cow found in defendant’s possession had' been stolen, it was error for the trial judge to express or intimate an opinion upon this issue.

The defendant’s conviction depended entirely upon circumstantial evidence. It necessarily depended upon the inference that he was the alleged thief, drawn from the circumstance, if true, that he was in the recent possession of a stolen cow, which possession was unsatisfactorily explained by him. It was therefore error on the part of the trial -judge to fail, even in the absence of a request, to charge the law relative to the degree of proof necessary to convict upon circumstantial evidence. Kinard v. State, 19 Ga. App. 624 (91 S. E. 941); Harris v. State, 18 Ga. App. 710 (90 S. E. 370). See my views upon this question and criticisms upon the cases relied on by the majority of the court, expressed in Reynolds v. State, 23 Ga. App. 369 (98 S. E. 246). To authorize a conviction upon circumstantial evidence the evidence must "exclude every other reasonable hypothesis save that of the guilt of the accused.” Penal Code, §1010. Assuming that the trial judge, in every case where a conviction must depend entirely upon circumstantial evidence, whether the evidence convincingly establishes a defendant’s guilt, or is weak and doubtful, fully complies with his duty in respect to charging the law relative to the degree of proof necessary to convict upon such evidence when he properly submits to the jury the law relative to all of the hypotheses of innocence, he failed in this case to submit to the jury the hypothesis of the defendant’s innocence based upon the fact that no larceny at all has been proved. It is conceivable that a jury might be inclined for some reason to discredit the testimony of the sole witness relied upon by the State for a conviction, even though this testimony be disputed only by defendant’s plea of not guilty, and not by other testimony, but would, upon the trial judge’s intimation or assumption that the fact solely testified to by this witness was the truth, yield to this opinion out of implicit confidence in, and respect which the jury might have for, the trial judge and his ability after long experience in the trial of cases to correctly determine the truth of testimony and the credibility of witnesses. Under the Manimm and Biish cases cited by the majority of the court, it is stated that “if all possible hypotheses arising from the circumstantial evidence which are favorable to the defendant be presented in concrete statement to the jury, and the jury told that if they believe any one of these hypotheses the defendant should be acquitted, the principle above referred to [i. e. the law relative to circumstantial evidence] would be sufficiently presented.” In the present case all of the hypotheses favorable to the defendant were not presented, and the charge failed to measure up to the rule laid down in the Mangum and Bush cases.

Without passing upon the other questions raised, I am of the opinion that, for the foregoing reasons, the judgment should be reversed and a new trial granted.


source: Caselaw Access Project

author: Bkoyles, P. J.

license: Public Domain

text:
    10418.
    Hernandez v. Copeland.
    Decided June 27, 1919.
    Action for damages; from Chatham superior court—Judge Meldrim. January 28, 1919.
    The action was for personal injuries from a collision of the defendant’s automobile with the plaintiff’s bicycle. The petition alleged, in substance, that at night the plaintiff was riding a bicycle in the rear of the defendant’s automobile on a public road. The defendant’s wife, as his agent, was driving the automobile, and the defendant was seated at her side on the front seat. The plaintiff, desiring to pass the automobile, while it was going at a speed of between five and eight miles an hour, rode on his wheel to the left of the automobile and proceeded along by its side, and then ran in advance of the automobile to the right of the road and continued to ride for throe or four minutes on the right side of the road and about twenty feet in advance of the automobile, when the front wheel of his bicycle struck a sandy place on the right side of the road, and as a result of this the bicycle overturned and he was thrown to the ground on the right side of the road. He immediately arose, and his body was in almost an erect position when he was struck in the back by the right front fender of the automobile and again knocked to the ground. The automobile was not stopped, nor the speed slackened, nor its course deflected, but it came straight ahea.d, and, after knocking him to the ground, the right front wheel passed over his right leg, and his clothing became entangled in the wheels and machinery of the automobile, and he was dragged by it along the road for a distance of between 200 and 300 feet, after which the defendant placed him and the bicycle in the automobile, and took him to a hospital. He received certain injuries (described) as a result of the striking and dragging by the automobile. It was alleged that the injuries were due entirely to the defendant’s negligence as follows: (1) in permitting his wife, who was an inexperienced and incompetent driver, to have charge and control of the machine; (2) in permitting the automobile to be driven along the public road at that time and place, in close proximity to the plaintiff’s bicycle, without clue care for his rights and safety being exercised; (3) in that the defendant’s wife did not use all reasonable and proper care, in the driving of the automobile, to avoid collision with and injury to the plaintiff; (4) in that the defendant’s wife, when the plaintiff fell to the ground, took her hands from the steering wheel and threw them to her face, and allowed the machine to speed on its course and overtake and injure the plaintiff, whereas if she had either applied the brakes of the machine or had steered it to the left of the plaintiff while he was prostrated on the ground and in the act of rising, all injury to him would have been avoided; (5) in that the defendant, when his wife failed to apply the brakes and released the steering gear, did not himself apply the brakes and steer the automobile to the left, and thus avoid striking the plaintiff; (6) in that the defendant allowed the machine to be propelled under its power for a distance of between 200 and 300 feet without stopping it, and thus dragged the plaintiff along the road, and thus aggravated the initial injury to the plaintiff’s leg and tore his clothing into shreds.
   Bkoyles, P. J.

The petition set out a cause of action, and the court erred in sustaining the general demurrer.

Judgment reversed.

Bloockvorth and Stephens, JJ., concur.

The defendant demurred, on the grounds, (1) that no cause of action was stated against the defendant, and (2) that there was a non-joinder, in that the defendant’s wife should be made a party defendant. The court overruled the second ground and sustained the general demurrer and dismissed the petition.

Oliver & Oliver, for plaintiff,

cited: 120 Ga. 230 (1); 122 Ga. 664 (1) ; 103 Ga. 823; 4 Ga. App. 436, 438; 6 Ga. App. 684 (2); 17 Ga. App. 699 (1), and cit.

Adams & Adams, for defendant,

cited: 7 Ga. App. 642 (1); 100 Ga. 46, 49-50.


author: Stephens, J.

text:
    10430.
    King v. The State.
   Stephens, J.

1. While the defendant in a criminal case may make to the jury a statement in his own behalf not under oath, -which may be received in whole-or in part by the jury in preference to the sworn testimony, he is not a competent witness in the case, and cannot be sworn as such. While he may be cross-examined not under oath, if he consents thereto, an offer by his counsel to put him under oath and permit him to be cross-examined was properly rejected by the trial judge.

Decided June 27, 1919.

Accusation of violating prohibition law; from city court of Macon—Judge Guerry. March 1, 1919.

Hubert F. Rawls, Olm J. Wimberly, Thomas Arnold Jacobs Jr., for plaintiff in error.

Will Gunn, solicitor, contra. •

'2. The evidence offered by counsel for defendant as set out in the second ground of the amendment to the motion for new trial was entirely irrelevant to the issue and it was not error on the part of the trial judge to refuse to admit the same.

3. The assignment of error set out in the third ground of the amendment to the motion for new trial, not being referred to in the brief of counsel for the plaintiff in error, will be treated as abandoned.

4. The evidence is sufficient to support the verdict, which has the approval of the trial judge, and this court will not interfere therewith.

Judgment affirmed.

Broyles, P. J., and Bloodioorth, J., concur.


author: Bloodwortit, J..

text:
    10451.
    PERDUE v. THE STATE.
    A conviction of larceny was authorized by the evidence, which included proof of a ‘confession of guilt, corroborated by evidence showing larceny of the cotton alleged to have been stolen, and that the basket in which it was when stolen was found where the accused said he put it. The sufficiency of the corroboration was a matter to be determined by the jury.
    Decided June 27, 1919.
    Accusation of larceny; 'from city court of Newnan—Judge Post. March 21, 1919.

      Stanford Arnold, for plaintiff in error.

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

A confession of guilt was established. This was not only corroborated by the fact that the larceny was clearly shown, but it was further corroborated by tbe fact that the basket in which the cotton was when stolen was found where the accused said he put it. “Proof of the corpus delicti may be sufficient corroboration of a confession of guilt to sustain a verdict of guilty.” Davis v. State, 105 Ga. 808 (3) (32 S. E. 158); Allen v. State, 8 Ga. App. 90 (68 S. E. 558). “While a conviction based upon an uncorroborated confession cannot be sustained, the sufficiency of the circumstances adduced for the purpose of corroboration is to he determined by the jury.” Cook v. State, 9 Ga. App. 208 (3) (70 S. E. 1019). “In this case the motion for g, new trial contained only the usual general grounds. There was some slight evidence authorizing the verdict; and the verdict having been approved by the trial judge* under the repeated and uniform rulings of this court and of the Supreme Court* a reviewing court is powerless to interfere. When the verdict is apparently decidedly against the weight of the evidence, the trial judge has a wide discretion as to granting or refusing a new trial; but whenever there is any evidence, however slight* to support a verdict which has been approved by the trial judge* this court is absolutely without authority to control the judgment of the trial court.” Bradham v. State, 21 Ga. App. 510 (94 S. E. 618), and cases cited.

Judgment affirmed.

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


author: Bboyles, P. J.

text:
    10461.
    Dye v. The State.
    Decided June 27, 1919.
    Indictment for misdemeanor; from Warren superior court— Judge Walker. March 6* 1919.

      M. L. Pelts, for plaintiff in error.

      B. 0. Norman, solicitor-general, contra.
   Bboyles, P. J.

1. When considered in the light of the charge of the court as a whole* none of the excerpts complained of in the motion for a new trial requires a new trial.

2. The remaining special ground of the motion for a new trial was based upon statements alleged to have been made by one of the jurors before the trial of the case, showing that he was prejudiced and biased against the defendant. The evidence submitted in support of this ground was met with a counter-showing by the State, and on this issue of fact the judge was the trior, and his decision in favor of the State was authorized by the evidence adduced.

3. The verdict was authorized by the evidence.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


author: Bloodworth, J.

text:
    10463.
    HUTTO v. THE STATE.
    Transmission of the bill of exceptions and the transcript of the record in this ease to this court being delayed beyond the prescribed period for transmission, and it appearing, from the certificate of the clerk of the lower court, that the delay was caused by counsel for the plaintiff in enor, who took the bill of exceptions and the brief of the evidence from the clerk’s office oil the day on which the hill of exceptions was filed therein, and retained them for several months, although repeatedly requested to return them, the writ of error must be dismissed.
    Decided June 27, 1919.
    Accusation of bastardy; from city court of Hazlehurst—Judge Knox. August 13, 1918.

      8. D. Dell, W. W. Bennett, for plaintiff in error.

      J. Marie Wilcox, solicitor, contra.
   Bloodworth, J.

A motion to dismiss the writ of error in this case was made upon the ground that “said bill of exceptions and the transcript of the record in said case was not transmitted to the Court of Appeals of Georgia within fifteen days from the date of the service of said bill of exceptions.” In his certificate to the transcript of the record the clerk of the city court of Hazlehurst says: “I further certify that the original bill of exceptions in this case was filed in my office on the 28th of August, 1918, as will appear by reference to said bill of exceptions. This record has not been transmitted to the Court of Appeals of Georgia until this date, to wit, March 31, 1919, for the following reasons, which I certify as the cause of the delay in the transmission in said case: Counsel for plaintiff in error filed said bill of exceptions in my office on 28th day of August, 1918, and immediately took the same, together with the brief of evidence, charge of the court, and the documentary evidence in said case, out of my office for the purpose of preparing a transcript thereof for transmission to the Court of Appeals of Georgia; that the same was not returned to my office, and that during the month of February, 1919, I called upon counsel to return said record, and on February 23, 1919, counsel returned to my office said original bill of exceptions, but did not return the balance of said record; and that although rejieatedly requested to do so, counsel did not return said record to my office; and that on March 28, .1919, I went to the City of Baxley, Georgia, the home of counsel for plaintiff in error, and procured from him said record, a transcript of which is being transmitted herewith; that said record was not in my office at any time between the filing of said bill of exceptions and the dates above set out, but was in the possession and custody of counsel for plaintiff in error. Counsel had borrowed said record for the purpose of preparing a transcript thereof for transmission, and, none of the record being left in my office, the matter escaped my attention until called to it by State’s counsel in tbe month of February, 1919, when I immediately called upon counsel for plaintiff in error for said record; that I repeatedly and insistently requested counsel to return said record that I might transmit the same, but that he failed to do so, and I finally had to go to Baxley, Ga., and get the record. Given under my hand and official seal of said court, this the 31st day of March, 1919.”

In Smith v. Watson, 34 Ga. App. 322 (80 S. E. 862), it was held: “Where it appears that the clerk of the trial court has failed to transmit to the Court of Appeals within the time prescribed by law the transcript of the record, and that the plaintiff in error or his attorney has been the cause of the delay, by consent, direction, or procurement of any kind, the writ of error will be dismissed. Wheeler v. Crawford, 135 Ga. 148 (69 S. E. 22); Lang v. Montgomery, 140 Ga. 690 (79 S. E. 840).” See also Budden v. Brooks, 123 Ga. 882 (2) (51 S. E. 727); DeLoach v. Kicklighter, 11 Ga. App. 74 (74 S. E. 717); Nobles v. Smith, 17 Ga. App. 421 (87 S. E. 606).

Applying the rulings made in these cases, the writ of error must be Dismissed.

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


text:
    10468.
    Williams v. The State.
   Stephens, J.

1. Although there was no actual difference of opinion between the court and counsel as to the law applicable to the case, it was not error prejudicial to the accused, in that it destroyed the wholesome effect of his counsel’s argument before the jury, for the court to charge the jury that “where the court and counsel differ as to the law, it would be your duty to take the law from the court and apply that law given you by the court, and accept as law what is given you by the court.”

2. Where one was charged with the offense of making alcoholic liquors in violation of law, and the evidence showed that a substance commonly called “beer,” made out of cornmeal and water, was found in an outhouse in the possession of the defendant and on the premises where he lived, it was not error for the court to charge the jury that they would be authorized in presuming that the defendant was in possession of the “beer” and that he owned and made it. This charge instructed the jury that they were only authorized to conclude that the defendant made the substance in question, and did not instruct the jury that they were obliged, as a matter of law, to conclude that he made such substance. This charge is not subject to the objection that it eon-tamed, an expression of opinion as to what had been proved in the ease.

Decided June 27, 1919.

Accusation of manufacture of liquor; from Kandolph superior court—Judge Worrill. March 3, 1919.

George E. Perry, for plaintiff in error.

B. T. Castellón), solicitor-general, B. B. Arnold, contra.

3. A charge that one convicted of the ofíense of manufacturing liquors is punishable by imprisonment in the penitentiary for a period not less than one nor longer than four years was inaccurate, in that it misstated the maximum penalty, which is five years. The jury could have considered the severity of the penalty prescribed, in determining whether or not they should recommend that the offense be punished as for a misdemeanor. But since the judge could have disregarded such recommendation, and since he sentenced the defendant to a term of only two years in the penitentiary, this misstatement was harmless.

4. Evidence that apparatus for manufacturing liquors prohibited by law and a barrel of “beer” which had fermented and was alcoholic and would produce intoxication were found in a house on the premises of the defendant where he lived, and he admitted that such apparatus and “beer” were in his possession, and that he intended to use the same for the purpose of making liquor, is sufficient to authorize his conviction of making liquor in violation of law.

Judgment affirmed.

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


text:
    10473.
    HUTCHESON v. THE STATE.
    A conviction under section 442 of the Penal Code (1910), on the charge of being in an intoxicated condition on the public highway, “made manifest by indecent condition or acting,” was authorized by evidence that the accused, a woman, was found drunk and asleep, with a man “sorter lying on” her, both under a quilt, on the back seat of an automobile on a public highway, and that she was too drunk to walk.
    Decided June 27, 1919.
    Accusation of misdemeanor; from .city court of Wrightsville— Judge Blount. February 22, 1919.

      B. E. Moye, G. A. Pair cloth, for plaintiff in error.

      0. 8. Glaxton, solicitor, contra.
   Bloodworth, J.

Ludie Hutcheson was indicted under section 442 of the Penal Code of 1910, for being intoxicated on a public highway; the accusation alleging that said intoxicated condition was “made manifest by indecent condition or acting.” The evidence showed that the accused was found drunk and asleep, with a man “sorter lying on” her, both under a quilt and on the back seat of an automobile, which was on a public highway. The evidence further showed that she was too drunk to walk. In Davis v. State, 14 Ga. App. 572 (81 S. E. 907), we find the following: “The Standard Dictionary (1913), p. 1247, defines ‘indecent’ as ‘offensive to common propriety;’ ‘offending against modesty or delicacy; unfit to be seen or heard; or immodest; gross; obscene.’ For this reason we held in Howell v. State, 13 Ga. App. 75 (81 S. E. 247), that one who was lying in a public highway, on his back, stretched out drunk and unable to get out of the road, his head near the middle of the road and his feet toward the side, so that he had to be dragged to one side in order to permit the passage of vehicles, was drunk under such circumstances as that his drunkenness was manifested by an indecent condition within the meaning of the statute.” The second headnote in Sullivan v. State, 17 Ga. App. 122 (86 S. E. 287), is as follows: “In such a ease, the question as to whether one’s condition is such as to offend public decency is purely a question of fact, and must be determined by the jury, who' can take into consideration all the circumstances of the case. Lovett v. State, 13 Ga. App. 71, 74 (78 S. E. 857).” See also Ford v. State, 10 Ga. App. 442 (73 S. E. 605).

Applying the foregoing rulings to the facts of this ease, the jury were fully authorized to find that the intoxicated condition of the accused was “made manifest by indecent condition or actings,” and, as the motion for new trial contained the general grounds only, a new trial was properly refused.

Judgment affirmed.

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


author: Beoyles, P. J.

text:
    10516.
    Martin v. The State.
   Beoyles, P. J.

1. Complaint is made of the following excerpt from the charge of the court: “The State insists it has proven certain incriminating statements on the part of the defendant that connect him with the manufacture of this liquor. Look and see whether such statements were made, and, if made, whether they amount to incriminating admissions upon his part, and, if you find they do, you may take into consideration any incriminating admission made by the defendant, together with all other testimony in the case, to aid you in any way in determining whether or not the defendant is guilty, whether he is connected with the manufacture of liquor, as charged in the indictment.” Under the facts of the case and in the absence of a timely and appropriate written request, this excerpt was not erroneous because of failure to charge the law of confessions as set out in section 1031 of the Penal Code. Walker v. State, 118 Ga. 34 (44 S. E. 850); Pierce v. State, 132 Ga. 27 (61 S. E. 792); Lindsay v. State, 138 Ga. 818 (76 S. E. 369); Riley v. State, 1 Ga. App. 651 (57 S. E. 1031); Rucker v. State, 2 Ga. App. 140 (58 S. E. 295); Porter v. State, 11 Ga. App. 246 (74 S. E. 1099; Weldon v. State, 21 Ga. App. 330 (1c) (94 S. E. 326).

Decided June 27, 1919.

Indictment for manufacture of liquor; from Floyd superior court—Judge Wright. April 7, 1919.

M. B. Mebane, for plaintiff in error.

G. II. Porter, solicitor-general, contra.

2. There was testimony, other than that of accomplices, directly connecting the defendant witli the offense charged and authorizing his conviction. .Judgment affirmed.

Bloodworih and Stephens, JJ., concur.


text:
    10390.
    HENDRIX v. THE STATE.
    1. Where one is indicted for having, controlling, and possessing prohibited liquors, and the evidence relied upon to convict is the finding of such liquors in the defendant’s residence, it is not necessarily a complete defense to such charge that the defendant was not at his place of residence at the time such liquors were found and had not been there since the time such liquors were placed in his residence. One maj' have, control, or possess liquor in violation of law and at no time be present at the p’ace of storage or have such liquor in his physical possession. The trial judge, therefore, did not err in failing to charge the law relative to alibi as a defense, especially since the defendant made no request for such a charge.
    2. Conceding that the defendant’s conviction depended entirely upon circumstantial evidence, the failure of the judge, in the absence of a timely written request, to charge the jury the precise language of section 1010 of the Penal Code was not error. The judge presented in a concrete statement to the jury the only possible hypothesis arising from the evidence or from the defendant’s statement which was consistent with his innocence, and instructed the jury that if they found this hypothesis to be true, the defendant should be acquitted. The principle of the law of circumstantial evidence was sufficiently presented by these instructions.
    3. The other special ground of the motion for a new trial, not being insisted upon either in the oral argument or in the brief of counsel for the plaintiff in error, will be treated as abandoned.
    4. The evidence amply authorized the verdict, and the court did not err in refusing to grant a new trial.
    Decided July 3, 1919.

      Certiorari; from Chatham superior court—Judge Meldrim. December 17, 1918.

      Robert.L. Golding, for plaintiff in error.

      Walter G. Hcartridge, solicitor-general, contra.
   Stephens, J.

The opinion of the majority of the court is as follows:

“The 2d headnote alone needs elaboration. The defendant.was tried and convicted of unlawfully having, controlling, and possessing spirituous liquors. The undisputed evidence showed that 188 pints of rye whisky were found in the defendant’s private residence. When the whisky was found he was absent, but his wife was present in the house. The defendant and his wife resided in the lower apartment of an apartment-house, and the evidence does not disclose that any one else lived there with them. A portion of this whisky was found in five suit-cases. There were also three empty suit-cases, and the remainder of the whisky was found standing upon the floor of the bath-room and upon the floor between the bath-room and the bedrooms. The whisky was found about 6:45 a. m. on the morning of October 7, 1918. A witness for the State testified that about 5 o’clock on the same morning he saw the defendant unloading, upon the front porch of his residence, the same suit-cases afterwards found in the house. It is true that other evidence showed that at that hour the defendant was locked up in the police station. However, the jury were authorized to believe the testimony of that witness, or to believe that he was mistaken as to the time that he saw the defendant unloading the suit-eases. But even if the testimony of this witness be entirely eliminated, the remaining undisputed evidence in the case, as to the finding of 188 pints of whisky in the defendant’s private residence, was sufficient to exclude every other reasonable hypothesis save that of the defendant’s guilt.

“In this State the husband is recognized by law as the head of his family, and, where he and his wife reside together, the legal presumption is that the house and all the household effects, including any intoxicating liquors, belong to the husband as the head of the family. This presumption of course is rebuttable. Young v. State, 22 Ga. App. 111 (95 S. E. 478), and authorities cited. In the instant 'case there was no attempt, either by the introduction of evidence or by the defendant’s statement, to rebut this presumption. It -will be borne in mind that the defendant was not charged with or convicted of placing the whisky upon his front porch at five o’clock in the morning, or at any other time; he was only charged with, and convicted of, having, controlling, and possessing whisky. Upon the trial the defendant introduced no evidence, and his entire statement was as follows: ‘Gentlemen, the statement that Mr. Coleman made is absolutely false. I was not at home at all that night, and know nothing at all about the whisky. Mr. Coleman claims that he saw me unloading the whisky at the house at 5 o’clock, at which time Lieut. Bentley will tell you I was under arrest at the police station. I think Lieut. Evers and Detective Murphy and Mr. Bentley will tell you that they would not believe that man on his oath. I know absolutely nothing about it at all.’ Eliminating the evidence of the State’s witness, Coleman (who testified to seeing the defendant unload the suitcases upon his porch), which was not necessary to convict the defendant (in view of the undisputed evidence as to the finding of the whisky in the defendant’s residence), the only contention made in the defendant’s statement, besides the immaterial statement that he was not at home that night, was that he knew nothing about the whisky being in his residence. In other words, the only hypothesis favorable to the accused, raised by the evidence and by the defendant’s statement, was that he did not have, control, or possess the whisky 'found in his house. Upon this issue the court charged as follows: ‘I charge you that if the proof satisfies you, beyond a reasonable doubt, that this defendant either had or procured or possessed spirituous liquors, or that he procured, commanded, aided, or abetted, or knowingly participated in having, controlling, or possessing spirituous liquors, he would be guilty of the crime charged. On the other hand, if he did not Icnowingly participate in having it, if he did not aid, or abet, or procure in having il, or if he did not have, control, or possess them, of course he would not be guilty. . . The issue for you to determine in this case is, whether this defendant did have, or did he control, or did he possess, spirituous liquors. If, under the rules given you in charge, you come to the conclusion that he did have, or that he did control, or did possess, you should find the defendant guilty. If you do not so believe, it ivill be equally your duty to find him, not guilty.’

“In Mangum v. State, 5 Ga. App. 445 (63 S. E. 243), paragraph 2 of the decision is as follows: ‘While in every criminal ease, where it is sought to show the guilt of the accused by circumstantial evidence alone, the jury should be instructed and cautioned that he should not be convicted on circumstantial evidence, unless the proven facts exclude every possible reasonable hypothesis save the guilt of the defendant, still it is immaterial what language is employed to- convey this instruction. If' all possible hypotheses arising from the circumstantial evidence which are favorable to the defendant be presented in concrete statement to the jury, and the jury are told that if they believe any one of these hypotheses the defendant should be acquitted, the principle above referred to would be’ sufficiently presented. And where, as in the present case, only two inferences can be drawn from the evidence,—the one of innocence, and the other of guilt,—and the hypothesis consistent with innocence is fully and fairly stated to the jury, and the jury are instructed that if they are satisfied that the hypothesis consistent with innocence is true, or if they have a reasonable doubt as to its truth, the defendant should be acquitted, the rule above stated is substantially complied with/ See also, to the same effect, Barrow v. State, 80 Ga. 191 (5 S. E. 64); Richards v. State, 102 Ga. 569 (27 S. E. 726); Jones v. State, 105 Ga. 649 (31 S. E. 574); Bush v. State, 23 Ga. App. 126 (97 S. E. 554); Reynolds v. State, 23 Ga. App. 369 (98 S. E. 246); Davis v. State, ante, 35 (100 S. E. 50). In the instant case the court also sufficiently charged upon the presumption of the defendant’s innocence, and fully instructed the jury upon the subjects of reasonable doubt and of the defendant’s statement. It is our opinion that the court sufficiently presented in concrete form the sole hypothesis favorable to the accused, arising from the evidence or from the defendant’s statement. "Under the undisputed evidence in this case, leaving out entirely the evidence of the witness Coleman, the conviction of the defendant was clearly and convincingly proved, and the charge of the court as to the amount and character of proof requisite to the defendant’s conviction was such as to leave no room for doubt that the verdict would have been the same even if the court had, in the precise terms of the statute, stated to the jury that in order to warrant a verdict of guilty, the evidence must not only be consistent with the guilt of the accused but inconsistent with every other reasonable hypothesis. Toler v. State, 107 Ga. 682 (33 S. E. 629).”

Speaking for myself alone, I concur in the first headnote, but dissent from the ruling announced in the second headnote. There is no direct evidence that defendant had, controlled, or possessed any liquors. He had, sometime in the nighttime, come in an automobile from the railroad yards, under circumstances that were suspicious. He was seen later unloading from an automobile some suit-cases onto the front porch of his residence, but there was no evidence as to the contents of these suit-cases. That was necessarily left to inference from other circumstances. A few hours after-wards, and in the defendant’s absence, some of these identical suit-cases were found, filled with intoxicating liquor, in his house. There is no direct proof that he knew of the presence of the liquor in his house, nor as to when it was placed there. It is only an inference, from the circumstance that it was his home and that he brought the liquor and deposited it there a few hours before it was found there in the suit-cases which he had been seen unloading from the automobile. There is no direct proof that the suit-cases, when they were unloaded, contained any liquor. This can only be inferred from the circumstances under which the car came from the railroad yards, and the finding of the liquor a few hours after-wards in the suit-cases, after they had been deposited by the defendant himself upon the porch of his house. The conviction of the defendant, therefore, necessarily depended entirely upon circumstantial evidence (Lewis v. State, 6 Ga. App. 205, 64 S. E. 701); and unless the trial judge charged the law relative to the degree of proof necessary to convict upon such evidence, whether requested to do so or not, the conviction should’be set aside (Harden v. State, 13 Ga. App. 34, 78 S. E. 681), unless it can be brought within the doctrine of Barrow v. State, 80 Ga. 191 (5 S. E. 64), and the authorities following it, relied upon by my colleagues in the majority opinion. I do not think that this doctrine is applicable here. See my views expressed in my dissenting opinions in Reynolds v. State, 23 Ga. App. 369 (98 S. E. 346), and Davis v. State, 24 Ga. App. 38 (100 S. E. 51). The doctrine of the Barrow ease, and the authorities following it, applies only when the guilt of the accused, dependent upon circumstantial evidence, “is clearly and convincingly l proved, and the charge as to the amount and character of proof requisite to a lawful conviction is such as to leave no room for doubt that the verdict would have been the same even if the court had in terms stated to the jury that, in order to warrant a verdict of guilty, the evidence must not only be consistent with the guilt of the accused, but inconsistent with every other reasonable hypothesis.” (Italics mine.) Toler v. Stale, 107 Ga. 682 (33 S. E. 629). It seems that where guilt is well established by circumstantial evidence, and it is apparent that another trial would not produce a different result, a charge which fully and liberally instructs the jury as to reasonable doubt and presumption of innocence fully measures up to the doctrine of the Barrow case, supra, and the authorities following it.

As I understand it, the charge of the court now under consideration does not, in view of the facts of the case, measure up to the standard laid down by these authorities and relied upon by the majority of this court. While the evidence, taken most strongly against the defendant and in favor of the State, points rather strongly towards the defendant’s guilt, yet, in view of the impeaching testimony and the defendant’s contention that it is a case of mistaken identity, it cannot with certainty be said to “clearly and convincingly” prove the defendant’s guilt (Toler case, supra), or to “clearly show the guilt of the accused” (Richards case, supra). See also Jones v. State, supra. Nor did the judge charge the jury that the defendant entered the trial with the presumption of innocence in his favor, and that this presumption remained until the State rebutted it by proof, and that if the State failed to do so he should be acquitted. Barrow case, supra. The only reference made by the trial judge to the presumption of innocence was in these words: “Every person accused of crime is presumed to be innocent until guilt is proven beyond a reasonable doubt.” This language was not as full and as ample as Georgia judges are accustomed to use in this connection, and did not measure up to the well-recognized legal standard. Reddick v. State, 11 Ga. App. 150 (74 S. E. 901) Coffin v. United States, 156 U. S. 432 (15 Sup. Ct. 394, 39 L. ed. 481). It made no reference to a presumption of innocence remaining with the defendant throughout the entire trial. While I am not prepared to say that this omission should work a reversal of the judgment if properly excepted to, yet it certainly was not a very liberal and full instruction upon the law of presumption of innocence, and can hardly compensate for the trial judge’s omission to specifically charge the law relative to the degree of proof necessary to convict upon circumstantial evidence.

In the Bush case, cited and relied upon in the majority opinion, it is hold: “While in every criminal ease, where it is sought to show the guilt of the defendant by circumstantial evidence alone, the jury should be instructed and cautioned that he should not be convicted on circumstantial evidence, unless the proved facts exclude every possible reasonable hypothesis save the guilt of the defendant, still it is immaterial what language is employed to convey this instruction, if all possible hypotheses arising from the circumstantial evidence which are favorable to the defendant be presented in concrete statement to the jury, and the jury are told that if they believe any one of these hypotheses the defendant should be acquitted. This rule is substantially complied with where, as in the present case, only two inferences can be drawn from the evidence,'—the one of innocence and the'other of guilt,—and the hypothesis consistent with innocence is fully and fairly stated to the jury, and the jury are'instructed that if they are# satisfied that the hypothesis consistent with innocence is true, or if they have a reasonable doubt as to its truth, the defendant should be acquitted.” 'The ruling in Reynolds v. Stale, supra, was to the same effect. If the rule here stated by the Court of Appeals is in conflict with the rule laid down by the Supreme Court in the authorities cited by the majority of this court, it, of course, must yield to the higher authority. Be that as it may, the charge fails also to measure up to the standard laid down in the Mangum and Bush cases, since “all the hypotheses arising from the circumstantial'evidence which are favorable to the defendant” were not “presented in concrete statement to the jury.” Several of the hypotheses favorable to the defendant’s innocence were not presented in any form to the jury. It was an hypothesis consistent with innocence that the suit-cases when unloaded on defendant’s porch did not contain liquor. It was an hypothesis consistent with innocence that the defendant Avas not the person seen unloading the suit-cases from the automobile. The defendant stated that lie had not been at home that night. According to the police officer’s testimony, the defendant was arrested prior to the time that the State’s main witness testified that he saw the defendant unloading the suit-cases, and must have been in jail at the time. It was an hypothesis consistent with innocence that the State’s main witness did not speak the truth when ho stated the time at which lie saw defendant unloading the suit-cases, this testimony having been contradicted by another witness,—-the police officer. It was an hypothesis consistent with innocence that the defendant, by reason of his absence from home, had no knowledge of the presence of liquor in his house. None of these hypotheses ivere specifically called to the jury’s attention. The law as to impeachment of witnesses was not charged. It being undisputed that the defendant was absent from home when the liquor was discovered there, it ivas absolutely essential to his guilt, predicated upon the fact that the liquor was found at his house, that he knew of its presence and allowed it or caused it to be there, or to remain there after becoming aware that it was in his house. Nowhere- did the judge charge that such guilty knowledge was essential to the defendant’s conviction. For these reasons I do not, after consideration of all the authorities, believe that the charge of the court as applied to this case, measured up to the standard laid down in the authorities supra, which hold that the law relative to the degree of proof necessary to convict under circumstantial evidence was substantially given in charge.

I take it that, from all the authorities, the true rule is that where a conviction depends entirely upon circumstantial evidence, the trial judge should, whether requested or not, give in charge to the jury the law relative to the degree of proof necessary to convict in such cases, viz: “To warrant a conviction on circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt of the accused ” (Penal Code, §1010); but where the judge fails to so charge, “such failure will not require another trial when the guilt of the accused is clearly and convincingly proved, and the charge as to the amount and character of proof requisite to a lawful conviction is such as to leave no room for doubt that the verdict would have been the same even if the court had in terms stated to the jury that, in order to warrant a verdict of guilty, the evidence must not only be consistent with the guilt of the accused, but inconsistent with every other reasonable hypothesis” (Toler v. State, supra), “such amount and character of proof” being outlined to the jury in ample instructions as to presumption of innocence, reasonable doubt, defendant’s statement, etc. (Barrow case, supra); or, irrespective of the strength of the testimony tending towards conviction, the law relative to conviction upon circumstantial evidence is sufficiently stated to the jury when their attention is sufficiently called to all issues made by the evidence and the law relative thereto is submitted in charge, and when every possible reasonable hypothesis of innocence deducible from the evidence is submitted in “concrete statement” to the jury, a total aggregate of single instances being equivalent to the whole. This rule is based upon the doctrine of harmless error and substantial compliance. Harmless error is often dangerous doctrine, and substantial compliance is often bad law. These exceptions to the general rule should bo cautiously applied.

For the above reasons, and without passing upon the other assignments of error, I think the conviction should be set aside and a new trial granted.

Judgment affirmed.

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


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

text:
    10444.
    Slaton et al. v. Hinman.
   Broyles, P. J.

1. Where in a suit upon an account a bill of particulars is not attached, and a demand therefor is made by the defendant, and subsequently, by amendment allowed, a bill of particulars is set out, this amendment need not be served upon the defendant; and the plaintiff does not lose a term of the court because the bill of particulars was not attached in the first instance to the account sued on. Section 6269 of the Civil Code has been superseded by section 5628 thereof. Moore v. Hendrix, 144 Ga. 646 (2) (87 S. E. 915) ; Rea v. McGahee, 12 Ga. App. 326 (77 S. E. 204).

2. It does not affirmatively appear from the petition for certiorari and the answer thereto that the original judgment in favor of the plaintiff was not rendered at the proper term of the court.

3. “An affidavit of illegality can not be used as a substitute for certiorari or other appellate procedure. If the affiant was regularly served with process or voluntarily appeared and pleaded in the main suit, he can not by Ms affidavit of illegality assail the judgment because of mere errors of law which took place on the trial.” Arnold-Forrest Horse & Mule Co. v. Fleming, 9 Ga. App. 483 (71 S. E. 766).

Decided July 3, 1919.

Certiorari; from Fulton superior court—Judge Ellis. January 24,1919.

IP. A. James, for plaintiffs in error.

E. IP. B elf or, contra.

4. Under the above rulings the trial judge did not err in dismissing the affidavit of illegality.

5. The bill of exceptions contains no assignment of error upon the judgment of the superior court dismissing the traverse to the answer to the petition for certiorari. That judgment, accordingly, will be conclusively presumed to be correct.

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

Judgment affirmed.

Bloo&worth, J., concurs. Stephens, J., concurs specially.

Stephens, J.

In my opinion a decision of the matters embraced in paragraphs 1 and 2 of the decision in this ease is not necessary to a proper determination of the case. I concur in the judgment of affirmance upon the grounds stated in the other paragraphs.


text:
    10266.
    Washington v. The State.
   Stephens, J.

1. Evidence that the defendant and others were seen at a secluded spot in the woods, sitting around in a circle, where cards were being dealt by one of them to the others, although he was not seen with any cards in his hands and was not seen to handle any money, and that upon the approach of the officers he and the others ran, leaving money and cards upon the ground, was sufficient to authorize his conviction of plying and betting for money at a game played with cards; and the trial judge did not err in charging the jury as set out in the 1st ground of the amendment to the motion for a new trial. Frost v. State, 120 Ga. 311 (47 S. E. 901).

2. Evidence that the defendant, after he had been indicted for gaming, stated that he played in the game on the date alleged in the indictment, that “they had a good pot and left some on the ground,” and that he was gambling on this occasion, and was going to plead guilty, was ample evidence of a confession. Abrams v. State, 121 Ga. 170 (5) (48 S. E. 965).

3. Where evidence of a confession is offered by the State in a criminal case, and there is no objection by the defendant upon the ground that the alleged confession was not voluntarily made, it is admissible as a voluntary confession. Eberhart v. State, 47 Ga. 598; Alford v. State, 137 Ga. 458 (4) (73 S. E. 375).

(a) While charging upon the weight to be given confessions, a failure on the part of the judge to charge the jury that they would not be authorized to consider such an alleged confession unless freely and voluntarily made was not error, in thd" absence of a timely written request so to charge. See, in this connection, Pierce v. State, 132 Ga. 27 (63 S. E. 392).

Decided July 10, 1919.

Accusation of gaming; from city court of Newnan—-Judge Post. December 10, 1918.

The instructions referred to in paragraph 1 of the decision were as follows: “I charge you that if you believe from the testimony that the accused, with six or eight or whatever number the evidence may disclose in this case, were seen at a secluded place, sitting around in a circle, and that you further find that they were engaged in playing cards, and that one of the party was heard to remark about $5, that is insisted was done in the game, and that all fled upon the approach of the arresting officers, and that a pile of cards and money were found on the ground and in the circle where they were sitting,— if you find these things to be true from the evidence, I charge you that it would authorize— if you find the defendant was in that crowd—I charge you that it would authorize his conviction, notwithstanding the absence of direct evidence that he was seen to pick up or put down a card, or to put down any money or pick up any money.” It was alleged that the court erred in so charging because: (a) It was not a true statement of the law; (5) it contained an expression of opinion as to the guilt of the defendant and that a game was being played in which the defendant participated; (c) it instructed the jury that they were authorized to convict the defendant who was in the crowd, notwithstanding there was no evidence showing that he participated in the game; (d) it authorized the conviction of the defendant without proof of the corpus delicti. The expression “that one of the party was heard to remark about $5, that is insisted was done in the game,” was complained of in an assignment of error referred to in paragraph 4 of the decision.

4. To determine whether an expression in an excerpt from the charge of the court is an expression or intimation of- opinion on the part of the trial judge as to what has or has not been proved, it is proper, in a doubtful ease, to construe the expression in connection with the entire charge, and where the trial judge elsewhere in his charge, in ample and unmistakable language, tells the jury that the particular matter about which it is claimed he has expressed an opinion as to its having been proved is an issue in the. case, such expression will not be construed as an expression or intimation of opinion on the facts. Hanvey v. State, 68 Ga. 615; Moon v. State, 68 Ga. 697.

(a) Upon the trial of one charged with the offense of playing and betting for money at a game played with cards, where the trial judge in his charge to the jury used the following language: “and if you further find that they were engaged in playing cards, and that one of the party was heard to remark about $5, that is insisted was done in the game,” the expression “that is insisted was done in the game” is not subject to the exception that it amounted to an expression of opinion on the part of the trial judge that there had been a game, when the judge, elsewhere in his charge to the jury, expressly told them that whether or not there had been a game was an issue of fact for them to determine.

5. The evidence authorized the verdict and judgment.

Judgment affirmed.

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

A. H. Freeman, for plaintiff in error.

W. L. Stallings, solicitor, contra.


text:
    10598.
    Stone v. The State.
    Decided July 10, 1919.
    Accusation of bastardy; from city court of Baxley—Judge Lawrence. March 6, 1919.

      Padgett & Watson, for plaintiff in error.

      G. H. Parker, solictor, J. B. Moore, contra.
   Stephens, J.

1. An accusation under Section 682 of the Penal Code, charging the offense of bastardy, which fails to allege distinctly that the defendant is the father of a bastard child, is fatally defective. A recital in the accusation that the prosecutrix had made an affidavit before a justice of the peace that the defendant was the father of a bastard child does not amount to an allegation that the defendant is the father of such child. Locke v. State, 3 Ga. 534; Hudson v. State, 104 Ga. 723 (30 S. E. 947).

2. The motion in arrest of judgment should have been sustained.

Judgment reversed.

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


text:
    10205.
    Louisville & Nashville Railroad Co. v. Stewart.
   Stephens, J.

This was a suit to recover the value of an alleged shortage in a carload shipment of rags, the shortage being the difference in the alleged weight of the rags at the time of their delivery to the defendant' carrier and the weight of the rags when delivered to the consignee. In this case there was no presumption against the railroad company, but tlie plaintiff had the burden of affirmatively proving his case. The evidence as to how many pounds of rags were actually loaded in the car is too vague and uncertain to support a recovery for the plaintiff, and the court erred in overruling the motion for a new trial.

Decided July 16, 1919.

Action for damages; from Gordon superior court—Judge Tarver. September 28, 1918.

Tye, Peeples & Tye, O. N. Stan-, D. W. Blair, for plaintiff in error.

A. L. Henson, J. G. B. Erwin Jr., M. B. Eubanhs, contra.

Judgment reversed,

Broyles, P. J., and Bloodioorlh, J,, concur.


text:
    10253.
    Mills v. The State.
   Stephens, J.

1. “Presence and participation in the act of killing a human being is not evidence of consent and concurrence in the perpetration of the act, by a defendant charged with aiding and abetting in the killing, unless he had a felonious design or participated in the felonious design of the person killing.

(а) “If the person charged with murder in the first degree commit the assault on the deceased with a deadly weapon, but his intention to assault him with a deadly weapon was unknown to the person charged in the same indictment as principal in the second degree, and he intended to participate in an assault and battery only, and in no design to kill, he is guilty of manslaughter only.

(б) “If a person charged in an indictment as principal in the second degree is connected with the act of killing, but is not connected with the intention to kill, and does not know that the person killing intended to use a deadly weapon in making an assault, he is guilty of manslaughter.” Brown v. State, 28 Ga. 200 (4-6); 1 Chitty’s Criminal Law, 258.

2. The evidence, while conflicting, authorized the inference that the defendant participated in the act of killing committed by the actual perpetrator of the homicide, but did not participate in the latter’s intent to kill. The verdict of voluntary manslaughter was therefore authorized by the evidence.

3. The conviction in this case being for voluntary manslaughter only, it was not harmful to the accused for the trial judge to refuse to charge, as requested, that “Even if one was present at the commission of a crime and mentally approved or consented to same, yet if that consent was unknown to the person committing the crime, the one so mentally approving could not be held guilty as a principal.” The defendant having been convicted of voluntary manslaughter, the jury must necessarily have found that he was not guilty of consent and approval, and the failure to charge as requested, even if it could be considered as error, was harmless. Land v. State, 11 Ga. App. 761 (2) (76 S. E. 78).

Decided July 16, 1919.

Conviction of manslaughter; from Montgomery superior court— Judge Graham. November 16, 1918.

A. 0. Saffold, JUschol Graham, for plaintiff: in error.

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

4. The other request to charge was fully covered by the general charge.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., eoneur.


author: Broyles, P. J.

text:
    10448.
    Savannah Electric Company v. Falcone.
    Decided July 16, 1919.
    Action for damages; from city court of Savannah—Judge Freeman. March 7, 1919.
    From the petition it appears that the plaintiff, while standing on the running board of an electric street-ear traveling at great speed, was injured because of a collision of the car with an automobile. The petition as amended (omitting parts eliminated by rulings on special demurrer) alleged in substance: On Sunday, September 15, 1918, the plaintiff, being in the employ of the Foundation Company and being engaged in necessary war work, which made it necessary for him to work on Sundays as well as week days, boarded an open car of the defendant railway company, operating between the city of Savannah and the Foundation Company’s plant where he was employed. An inspector employed by the defendant and acting within the scope of his duties as such advised the plaintiff and other employees of the Foundation Company that this was the only car to go to the Foundation Company that morning, and that as many as possible had better get on the car, and as a result the car was filled with these employees, and between forty and fifty of them, including the plaintiff, stood on the running board of the car; and the defendant’s conductor on the car collected his fare while he was standing on the running board. The car was about twenty minutes late in starting, and the inspector instructed the motorman to hurry back, as he had to meet a certain other car. The car immediately proceeded on its way to the Foundation Company at great and excessive speed, and continued at excessive, reckless, and negligent speed until the collision hereinafter related. It was running on the Augusta road at the rate of from thirty to thirty-five miles an hour when approaching Fair street, a much frequented highway used by pedestrians, wagons, and automobiles in large numbers, and the crossing- of that street and the Augusta road was a much frequented and dangerous crossing. The car carrying the plaintiff approached this dangerous crossing at full speed, and no bell was rung, or whistle blown, or other signal given of its approach. The defendant’s track at this point runs close to the southern edge of the Augusta road, which cuts Fair street at right angles. An automobile was going north on Fair street, intending to turn west into the Augusta road, and as it was crossing the defendant’s track the defendant’s car ran upon it, knocked the automobile into a telegraph pole, completely crushed it, and turned the rear of the automobile to its right, causing the automobile to strike and injure the plaintiff. The street-car was running so rapidly and recklessly that even after striking the automobile it could not and did not stop for a distance of 110 feet. The collision and the injuries described were caused solely by, and their proximate cause was, the negligence of the defendant, its agents and employees, in the following particulars: in operating its car at excessive and reckless speed; in failing to slow down in approaching the crossing, so as to have the car under, control and to be able to stop it within a reasonable distance; in operating the car at such excessive speed that when it struck the automobile it did so with so much force as to throw the automobile violently against the plaintiff and cause the injuries described; in failing to ring a bell or give any other signal of the approach of the street-ear when approaching a dangerous and frequented crossing; in failing to keep a proper lookout so as to observe the automobile in time to have been able to slow down and stop or let the automobile pass in front of the car without colliding. At the time of the collision the plaintiff was exercising all due and ordinary and reasonable care and diligence. The defendant owed him as a passenger extraordinary care and diligence, which it failed to exercise. Allegations were made as to the extent of the injury and damage. By amendment it was alleged, that the front of the street-car ran in and struck the rear of the automobile (the automobile having turned to the left and west in an effort to escape the collision), driving and forcing the automobile into the telegraph pole, which was standing between the defendant’s car-tracks and at a distance of about four feet south of the south track and on the prolongation of the west property lines of Fair street, and being at the southwest corner of the Augusta road and Fair street; “and said automobile being thus held jammed against said telegraph pole and said street-car continuing its terrific speed, forced its way past said automobile, causing . . . petitioner to be caught, jammed, and mashed between the said street-car and the said automobile.” At the time of said impact the street-car was traveling at a rate of speed of from thirty to thirty-five miles an hour. The excessive rate of speed described directly contributed to the injury, for had not the street-car been traveling at such rate of speed at the time.it struck the automobile, the rear of the automobile would not have been thrown around with such terrific force, and the plaintiff either would not have been hurt at all or his injuries would not have been so serious.
   Broyles, P. J.

The court did not err in overruling the general demurrer and certain grounds of the special demurrer to the petition as Anally amended. Judgment affirmed,.

Bloodworth amd Stephens, JJ., concur.

The court overruled a general demurrer to the petition, and overruled certain special grounds relating to the inspector’s statements, and to allegations as to speed, and as to negligence in failing to ring a bell or give a signal. Counsel for plaintiff in error contended that the alleged negligence of the defendant was not the proximate cause of the injury, and also contended that a recovery was precluded by the fact that the plaintiff when injured was engaged in a violation of the law which, prohibits one from pursuing his occupation on Sunday. Counsel cited: Ayers v. L. & N. R. Co., 5 Ga. App. 454; Wallace v. Cannon, 38 Ga. 199-(95 Am. D. 385); Martin v. Wallace, 40 Ga. 52; Redd v. Muscogee R. Co., 48 Ga. 102; Hughes v. Atlanta Steel Co., 136 Ga. 511.

Osborne, Lawrence & Abrahams, for plaintiff in error.

Francis P. Mclntire, M. H. Bernstein, contra.


author: Brovles, P. J.

text:
    10432.
    Buck v. Peoples Bank of Jacksonville.
    Decided July 16, 1919.
   Brovles, P. J.

The petition was not subject to either the general or the special ground of the demurrer interposed, and the court erred in sustaining the demurrer and dismissing the petition.

Judgment reversed.

Bloockvorth and Stephens, JJ., concur.

Motion to set aside judgment; from city court of Tifton—Judge Price. March 12, 1919.

By petition to the city court of Tifton, filed March 6, 1919, Buck sought to set aside a judgment which on August 5, 1918, that court rendered against him in favor of the Peoples Bank of Jacksonville, Florida, the defendant in the petition. He alleged, in brief, that by reason of a malignant cancer and dangerous illness which threatened his life, and for which he was under treatment in Baltimore, Maryland, from April 7 to August 15, 1918, and which after his return to his home kept him confined to his bed, he was incapacitated from giving any attention to business affairs and rvas in ignorance of any proceedings of a legal nature against him, and did not until within ten-days of the filing of this petition know of the suit against him, filed May 17, 1918, in which the judgment in question was rendered, and on account of his illness was prevented from making a defense. He alleged that he had a valid and meritorious defense. From the petition and the exhibits it appeared that the suit referred to was for $1,800 alleged to be due as a balance on a promissory note of Buck for $2,500, dated November 12, 1917, payable to the order of Blount Naval Stores Company and indorsed to Peoples Bank of Jacksonville. Service of that suit was effected by leaving a copy at the defendant’s place of abode. The petition to set aside the judgment alleged that the petitioner was not indebted to the plaintiff on the note sued on, for the reason that it was obtained from the petitioner under the following circumstances: On or about 'June 5, 1915, the Blount Naval Stores Company, of Jacksonville, Florida, was organized, with the petitioner as one of the subscribers to its stock; and at or about that time lie was indebted to the Blount Naval Stores Company in the sum of $5,500, balance due on stock subscription, and in settlement of this indebtedness executed and delivered to that company two promissory notes, one for $2,500 and one for $3,000. Subsequently B. W. Blount, president of the company, advised him that inasmuch as these two notes had not been paid, he had arranged for renewals of them, and through the mail Blount sent to him two notes for similar amounts, to be executed by him and delivered back to the company, for the purpose of using them as renewals or taking up the first two notes. With this understanding and for this purpose the petitioner executed the note sued on and one for $3,000, and sent them through the mail to the Blount Naval Stores Company to be used for that purpose alone. The original notes were at that time held by some bank the name of which the petitioner is unable to give. The Blount Naval Stores Company, without any right or authority and in fraud of the petitioner’s rights, transferred to the Peoples Bank of Jacksonville the note sued on, and did not use it for the purpose of taking up and renewing the two original notes, but left them as an outstanding obligation, and they are still outstanding obligations against him. Of all these facts the Peoples Bank of Jacksonville had full knowledge before the note sued on was transferred and delivered to it. The petitioner alleged that these facts constituted a good and meritorious defense. He offered to file his plea as here indicated and to plead instanter. He prayed that the judgment be vacated and set aside and that the case be reinstated. The petition was duly verified.

The defendant demurred generally, and also upon the ground that the petition failed to show how and from whom the Peoples Bank obtained its information as to the notes being renewal notes, and as to the purpose of Buck in executing them.

B. D. Smith, for plaintiff. J. 8. Bidgdill, for defendant.


text:
    10450.
    Donalson v. The State.
   Beoyles, P. J.

1. The statute prohibiting anyone from carrying, outside of his own home or place of business, a pistol, without first obtaining a license from the ordinary of the county in which he resides (Acts 1910, p. 134, Park’s Penal Code, § 348 (a), 348 (b) ), when properly construed as a whole, means that where on.e gives the required bond and secures a license to carry a pistol, he is authorized thereby to carry only the identical pistol for which the license is issued. While this is true, and while the act requires the ordinary granting the license to keep a record of the name of the person taking out the license, the name of the maker of the pistol to be carried, and the caliber and number of the pistol, the act does not require that these facts (except, of course, the name of the person to whom the license is issued) shall appear in the license itself or in any certificate from the ordinary that he has issued such a license.

2. Where upon the trial of one charged with carrying a pistol, outside of his own home or place of business, the defendant tendered in evidence a license from the ordinary of his home county authorizing the defendant to carry a 38-caliber S. & W. pistol, and also offered in evidence a certificate from the ordinary that he had issued this license; and the evidence showed that the , istol which the defendant was charged with carrying was a 38-caliber pistol of Smith & Wesson make, it was error for the court to exclude the license and the ordinary’s certificate. This documentary evidence, while not presenting a complete defense, in that it failed to show the number of the pistol which the defendant was licensed to carry, and therefore did not affirmatively establish that he was authorized under the license to carry the identical pistol which he was charged with carrying, was nevertheless admissible as a link in his chain of defense. Under such circumstances he would have the right, if he could do so, to prove by parol testimony, or by his statement (provided the jury saw fit to believe it), that the pistol he was charged with carrying was the same pistol referred to in the license.

Decided July 16, 1919.

Accusation of carrying pistol; from city court of Miller county— Judge Geer. March 22, 1919.

P. D. Rich, for plaintiff in error.

N. L. Stapleton, solicitor, contra.

3. The error in excluding the documentary evidence referred to above requires a new trial of the case.

Judgment reversed.

Bloodworth wnd Stephens, JJ., concur.


text:
    10512.
    White v. The State.
    Decided July 16, 1919.
    Accusation of misdemeanor; Nom city court of Carrollton— Judge Beall. April 7, 1919.

      John W. Moore, Boykin & Boykin, for plaintiff in error.

      Willie Smith, solicitor, contra.
   Bboyles, P. J.

1. Before a tenant can legally be convicted, under sections 720 and 721 of the Penal Code (1910), of defrauding his landlord, it must appear from the evidence that the sale of the crops by the tenant was without the consent of the landlord; that loss to the landlord resulted from the sale; and that the tenant made the sale with intent to defraud the landlord. Unless all three of these essential elements of the offense are shown, the defendant’s conviction is unauthorized. Morrison v. State, 111 Ga. 642 (36 S. E. 902); Reece v. State, 5 Ga. App. 663 (63 S. E. 670); Thompson v. State, 12 Ga. App. 201 (76 S. E. 1072).

2. Under the above ruling, and the facts of the instant case as disclosed by the record, the defendant’s conviction was unauthorized, and the court erred in refusing to grant a new trial.

3. It is unnecessary to consider the amendment to the motion for a new trial. Judgment reversed.

Bloodworth and Stephens, JJ., concur.


author: Luke, J.

text:
    9894.
    Duncan v. State of Georgia.
    Decided July 17, 1919.
    Condemnation under liquor law; from Gwinnett superior court —Judge Cobb. May 4, 1918.

      G. F. Kelley, for plaintiff in error.
   Luke, J.

1. In a proceeding under the act of 1917 (Pamph. Act, Ex. Sess. 1917, p. 16), to condemn a .vehicle for carrying intoxicating liquor, a verdict of acquittal, founded on the alleged illegal possession of the liquor by the defendant, was admissible as evidence in his behalf, and the court erred in excluding it. See Duncan v. State, 149 Ga. 195 (99 S. E. 612).

2. The grounds of the motion for a new trial not dealt with above are without merit.

Judgment reversed.

Wade, G. J., and Jenhins, J., concur.


text:
    9895.
    Duncan v. State of Georgia.
    Decided July 17, 1919.
    Condemnation under liquor law—intervention; from Gwinnett superior court—Judge Cobb. May 4, 1918.

      G. F. Kelley, for plaintiff in error.
   Luke, J.

1. Under the ruling of the Supreme Court in the ease oí Duncan v. State, 149 Ga. 195 (99 S. E. 612), that where a third person interposes a claim to a vehicle seized under the act of 1917 (Pamph. Act, Ex. Sess. 1917, p. 16) providing for the forfeiture of any vehicle in which spirituous liquors are carried on any public road or private way in this State, “the general rule is that the verdict of acquittal [of the defendant], though based on the same transaction, is inadmissible” in favor of the claimant, the court in this case did not err in refusing to admit in evidence the indictment against the defendant and the verdict of not guilty thereon.

2. The grounds of the motion for a new trial not dealt with above are without substantial merit.

Judgment affirmed.

Wade, G. J., and Jenhins, J., concur.