text:
    709.
    McALLISTER v. THE STATE.
    The confession not being plenary, and not being connected with the specific act which was the basis of the criminal offense charged, the conviction of the defendant was not authorized by the evidence.
    Indictment for fornication and adultez, from Bartow superior court — Judge Pite. July 26, 1907.
    Argued October 9,
    Decided October 15, 1907.

      James B. Conyers, for plaintiff in error.

      Sam. P. Maddox, solicitor-general, contra.
   Russell, J.

The defendant, John McAllister, was indicted and-convicted for the offense of adultery and fornication, and excepts to the overruling of his motion for a new trial. The only question presented by the record is whether the verdict is contrary to law, in that the evidence is insufficient to support it. This court is especially reluctant to interfere with the verdict of a jury, and for that reason we have carefully scrutinized the record to ascertain if in any view of the case the verdict can be supported by law. The evidence for the State, in brief, was that one witness saw the defendant running after the married woman with whom the intercourse is alleged to have taken place, and slapping her on the rump. Another witness, at another time, saw the defendant kiss the female in question. The State then produced the following statement, made by the defendant to another witness: “The defendant told me that he did it to [the woman in question] whenever he wanted to do it.” Another witness, detailing this same conversation, said that the defendant said that he did it to her one time. This was all the evidence in behalf of the State. The defendant stated that he had never had intercourse with the female in question; and she testified to the same effect.

A confession corroborated will authorize conviction of a criminal offense; the amount of corroboration being solely for the jury. Clark, in his work on Criminal Procedure, p. 532, lays the rule down thus: “An extra-judicial confession, in order to warrant a •conviction, must be corroborated by other evidence tending to prove "the corpus delicti.” Wharton, after stating the conditions upon which voluntary confessions are admissible, says: “While voluntary confessions of specific charges or of inculpatory facts are always admissible under the conditions above stated, they can not sustain a conviction, unless there be corroborative proof of the corpus delicti.” Whart. Cr. Ev. 632. In 1 Greenleaf on Evidence, § 217, in discussing the question whether extra-judicial confessions, xin-corroborated by any other proof of the corpus delicti, are sufficient to support a conviction, the learned author says: “In each of the English cases usually cited in favor of the sufficiency of this •evidence, there was some corroborating circumstance. In the United States the prisoner’s confession, when the corpus delicti is not otherwise proved, has been held insufficient for his conviction; .and this opinion certainly best accords with the humanity of the •criminal code, and with the great degree of caution applied in receiving and weighing the evidence of confessions in other eases, and it seems countenanced by approved writers on this branch of the law.” In People v. Badgley, 16 Wend. (N Y.) 53, it was held: “ Evidence of confession alone, unsupported by corroborating facts and circumstances, is not sufficient to convict; there must be proof aliunde of the corpus delicti, although such proof need not be conclusive.” In Stringfellow v. State, 26 Miss. 157, it was held: “In capital felonies, the extra-judicial confessions of the prisoner, where the corpus delicti is not proven by independent testimony, are insufficient to warrant a conviction of the accused.” In Johnson v. State, 59 Ala. 37, following Matthews v. State, 55 Ala, 187, it was held: “An extra-judicial confession, not corroborated by independent evidence of the corpus delicti, will not support a conviction for a felony.” In Kentucky, as in Georgia, this principle is embodied in the statutory law of the State.” Cunningham v. State 9 Bush, 149. This seems to be true in Iowa. State v. Feltes, 51 Iowa, 501. In U. S. v. Mayfield, 59 Fed. 118, Boarman, J., said: “Before a conviction is justified, the government should be required to establish the corpus delicti by some degree of circumstantial or other evidence independent of the defendant’s extra-judicial confessions.” In Priest v. State, 10 Neb. 394, the rule was laid down this way: “A confession is not sufficient evidence of the corpus delicti. There must be other evidence that a crime has actually been committed, the confession being used to' connect the accused with the crime.”

The error of the trial judge in this case grew out of his failure to recognize the distinction between a.confession incomplete and a plenary confession. We think that the circumstance that a gentleman boarder was seen familiarly slapping the rump of his landlady, who was a married woman, and the further circumstance that he was seen holding her by the chin and kissing her, would afford strong corroborative testimony of a plenary and specific confession of sexual intercourse. But the witnesses for the State, as to the confession, did not detail a statement by the defendant which would authorize a conviction, even if the law permitted convictions by confessions uncorroborated. From this statement, denominated a confession, it does not appear that the intercourse took place in Bartow county, nor that it was within two years prior to the finding of the indictment; nor is there any circumstance to connect it with the facts upon which the State relied for corroboration. We think, therefore, that the verdict, for lack of evidence, is contrary to law, and that a new trial ought have been granted.

Judgment reversed.


source: Caselaw Access Project

author: Russell, J.

license: Public Domain

text:
    710.
    McALLISTER v. THE STATE.
    That the foreman of a grand jury did not sign the entry of true hill on. an indictment is no ground for a motion in arrest of judgment.
    Motion in arrest of judgment, front Bartow superior court— Judge Fite. July 26, 1907.
    Argued October 9,
    Decided October 15, 1907.

      James B. Conyers, for plaintiff in error.

      Sam. P. Maddox, solicitor-general, contra.
   Russell, J.

After his conviction of a misdemeanor, the defendant made a motion in arrest of judgment. His motion was overruled, and he excepts to this judgment. The motion in arrest, of judgment is predicated upon the fact that the indictment was not signed by the foreman of the grand jury. In Barlow v. State, 127 Ga. 62 (56 S. E. 131), Judge Lumpkin remarks that the proper practice is for the foreman of the grand jury to sign a finding of true bill, on the back of the indictment, and this is the universally recognized practice.. But there is no positive law requiring that the foreman of the grand jury shall sign the finding at all. It was not required at common law. If it be indispensable that the foreman shall sign it, the defect arising from failure to sign is at least not ground for a motion in arrest of judgment. That has been definitely decided in McGuffie v. State, 17 Ga. 510. In Hughes v. State, 76 Ga. 40, the same question was before the court, and it was held that “all exceptions which go merely to the form of the indictment shall he made before trial; and no motion in arrest of judgment shall be sustained for any matter not affecting the real merits of the offense charged in the indictment. If a plea in abatement had been filed, it might be that the State would have shown from the minutes of the court the finding of the grand jury.” The court, therefore, committed no error in refusing to arrest the judgment. Judgment affirmed.


author: Powell, J.

text:
    717.
    Gates v. The State.
    Accusation of selling liquor, from city court of La Grange— Judge Harwell. August 2, 1907.
    Submitted October 9,
    Decided October 15, 1907.

      E. T. Moon, for plaintiff in error.

      Henry Reeves, solicitor, contra.
   Powell, J.

The evidence authorized the conviction. The trial judge did not abuse his discretion in overruling the motion for a new trial on the ground of newly-discovered testimony. Judgment affirmed.


text:
    732.
    BROWN v. THE STATE.
    1. A prosecution under the Penal Code, § G80, will not lie for the protection of the landlord as to any indebtedness other than advances necessary to make the crop.
    2. The conviction is not justified by the evidence.
    Accusation of misdemeanor, from city court of Statesboro— Judge Brannen. July 22, 1907.
    Argued October 9,
    Decided October 15, 1907.

      H. B. Strange, for plaintiff in error.

      Fred. T. Lanier, solicitor, contra.
   Powell, J.

The defendant was a cropper of the prosecutor; and he was tried and convicted for a violation of the Penal Code, §680, which provides: “Any cropper who shall sell or otherwise dispose of any part of the crop grown by him, without the consent of the landlord, and before the landlord has received his part of the entire crop and payment in full for all advances made to the cropper in the year the crop was raised, to aid in making it, shall be guilty of a misdemeanor.” The accusation alleged a loss' of $31.25. The only items definitely shown by the evidence to be owing by the defendant to the prosecutor were for an old buggy, $15, and for a doctor’s bill of $16, not contracted with the prosecutor, but bought up by the prosecutor from the physician. The code section does not protect landlords as to indebtedness d\ie them other than advances necessary to make the crop. The buggy was primarily not such an article of necessity to make the er.op, nor was it shown to be by the evidence. The physician’s bill was not an advancement by the landlord at all. Elliott v. Parker, 94 Ga. 620 (20 S. E. 106); Brimberry v. Mansfield, 86 Ga. 794 (13 S. E. 132); Scott v. Pound, 61 Ga. 579; Barge v. Weems, 109 Ga. 685 (35 S. E. 65). There are other indicia in the record that the prosecution did not come up to the true spirit of the section cited from the Penal Code; but the above reason alone is sufficient to require a reversal. Judgment reversed.


text:
    762.
    SHELL v. THE STATE.
    No reversible error appears.
    .Accusation of misdemeanor, from city court of Carrollton— Judge Hodnett. August 30, 1907
    Argued October 9,
    Decided October 15, 1907.

      Beall & Adamson, Griffith, Weatherly & Mathews, for plaintiff in error.

      C. E. Roop, solicitor, S. Holderness, contra.
   Powell, J.

Owing to the nature of the charge against the defendant, and of the testimony in the record, we shall make no report of the facts. We have, however, made a careful study of the assignments of error; but find nothing requiring the grant of a new trial. . _ Judgment affirmed.


author: Hill, C. J.

text:
    649.
    Lewis v. The State.
    Accusation of riot, from city court of Waynesboro — Judge' Johnston. June 17, 1907.
    Submitted October 7,
    Decided October 16, 1907.

      Brinson & Davis, H. J. Fullbright, for plaintiff in error.

      F. S. Burney, solicitor, Lawson & Scales, contra.
   Hill, C. J.

1. Where three men in front of a citizen’s house at night curse and threaten him in loud voices, repeatedly firing, a gun, thereby greatly frightening him and members of his family, each participating in such conduct, they are all guilty of the offense of riot.

2. The excerpts objected to, when considered in connection with the entire charge, contain no material or hurtful error of law.

3. The evidence supported the verdict, arid the judgment of the court refusing a new trial will not be disturbed. Judgment affirmed.


text:
    674.
    Harris v. The State.
    Accusation of enticing farm laborer, from city court of Ashburn —Judge Hawkins. May 25, 1907.
    Submitted October 7,
    Decided October 16, 1907.

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

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

1. The assignments of error made in the amendment to the motion for a new trial, not being approved by the trial judge, will not be considered by this court.

2. There being no approved brief of evidence in the record, the statutory grounds for new trial can not be decided. Judgment affirmed.


text:
    681.
    Sutton v. The State.
   Hill, C. J.

1. Abusive language, without more, is not a valid defense to a battery with a large pistol, sufficient in severity to knock down and cause unconsciousness.

2. The aggressor in the use of opprobrious words can not set up, as a defense to a violent battery with a pistol, the use of similar words provoked by his own language.

3. The verdict rendered was the verdict required by the undisputed evidence and the defendant’s statement, considered separately or together.

4. The grounds in the motion for a new trial are utterly without merit.

Judgment affirmed.

Accusation of assault and battery, from city court of Sylvester— Judge Park. June 6, 1907.

Submitted October 7,

Decided October 16, 1907.

Polhill & Foy, for plaintiff in error.

J. H. Tipton, solicitor, contra.


text:
    744.
    PAULK v. THE STATE.
    1. The city court of Baxley is a constitutional city court, and the judge of that court is authorized, under the constitution of 1877, to preside in the superior court of Appling county in .any case where the judge of the latter court is disqualified, and, when so presiding, “becomes the-impersonation of the superior court for that case.”
    2. On the trial of an indictment for the offense of hog stealing, where the issue of fact was as to the intention of the defendant, it being contended by the defendant that his intent was not to steal the hog in question, but to wound and kill it, it was error to refuse a written request to charge, timely made and pertinent to this issue.
    Indictment for hog-stealing, from Appling superior court— Judge Thomas presiding. July 11, 1907.
    Submitted October 9,
    Decided October 16, 1907.

      W. W. Bennett, for plaintiff in error.

      John W. Bennett, solicitor-general, W. W. Lambdin, contra.
   Hill, C. J.

The plaintiff in error was convicted of the offense of simple larceny, 'in the superior court of Appling county. The judge of the superior court of that county was disqualified to try the case, and the judge of the city court of Baxley presided on the trial. The defendant moved for a new trial, which was refused, and he excepted.

The first question made is whether the judge of the city court of Baxley had the right, under the constitution of 1877, to preside in this case. It was admitted that the judge of the superior court of that county was disqualified. The constitution of 1877, art. 6, sec. 5 (Civil Code, §5851), provides as follows: “In any county within which there is or hereafter may be a city court, the judge of said court, and of the superior court, may preside in the courts of each other in cases where the judge of either is disqualified to preside.” This provision of the constitution has been held by the Supreme Court to apply only to constitutional city courts. The fact that the city court has only jurisdiction to try misdemeanor cases does not affect the constitutional right of a judge of a constitutional city court to preside in the superior court in a felony case, where the judge of the latter court is disqualified. As to the disqualified case in the superior court, the judge of the city court is invested with all the power and authority of the judge of-the'superior court. In the language of Mr. Justice Jackson, in Northwestern Mutual Life Ins. Co. v. Wilcoxon, 64 Ga. 556, “He becomes the impersonation of the superior court for that case during the term.” The city'- court of Baxley has been decided by the Supreme Court to be a constitutional city court. Sellers v. Mann, 113 Ga. 643 (39 S. E. 11); Heard v. State, 113 Ga. 444 (39 S. E. 118); Ivey v. State, 112 Ga. 180 (37 S. E. 398). See Acts 1897, p. 420.

The next ground of error insisted upon is that the court refused to give the following written instrryfiion to the jury: “Gentlemen of the jury, if you find from the evidence in this case that this defendant, in company with the other defendant, with a gun, shot and wounded the hog in question, without any intention of stealing it, and then, with a club, beat the hog to death and threw it into the water of a river swamp, without any intention of stealing it and without converting it to their own use, but simply killed it and left it there to rot, then and in-that event he would not be guilty of the offense of simple larceny as charged in this indictment.” Under the evidence there was no question that the defendant and his codefendant did kill and drag the hog of the prosecutor, described in the indictment, from the place where they killed if and hid it behind a log, in the shallow water .of the lake swamp. The material question was as to their intention. . Did they intend to steal the hog, .or did they intend wantonly and maliciously to maim and kill the hog P The learned judge charged the jury the general elements constituting the. offense of .simple larceny as applicable to the facts .of the case,, and as contended for by the State. He failed to charge the contention of the defendant that the jury would not be authorized to convict if the intention of the defendant was not to commit the crime of larceny, but some other offense' not set out in the indictment. We think this was error, and that the above request was pertinent to the issue and contentions as made by the evidence, and should have been submitted to the jury. For this reason alone, we are constrained to grant a new trial. • Judgment reversed.


text:
    743.
    Paulk v. The State.
    Accusation of hog-stealing, from Appling .superior court— Judge Thomas presiding. July 11, 1907.
    Submitted October 9,
    Decided October 16, 1907.

      W. W. Bennett, for plaintiff in error.

      John W. Bennett, solicitor-general, W. W. Lambdin, contra.
   Hill, C. J.

1. The judge of the city court of Baxley was qualified! under the constitution of 1877, to preside in the superior court and try this case, the judge of the latter court being disqualified. Constitution of 1877, art. 6, sec. 5 (Civil Code, § 5851); Paulk v. State, ante (58 S. E. 1108).

2. It is no cause of challenge to the array that twelve of the forty-eight jurors constituting the array had just served as a jury on the trial of a person jointly indicted with the defendant, in which a verdict of guilty was rendered, and that the witnesses and the evidence in the present case would be the same as in the former. Such cause of challenge was not good against the panel, but would have been available only by challenges to the polls. Schnell v. State, 92 Ga. 459 (17 S. E. 966).

3. The written requests to charge on the issue made by the facts proved, as to whether the specific intent of the defendant was to commit the offense of larceny or some other offense, were fully covered by the charge of the court on that subject.

4. No error of law was committed, and the verdict is supported by the evidence. Judgment affirmed.


text:
    750.
    Baker v. The State.
    Accusation of cheating and swindling, from city court of Baxley — Judge Thomas. August 21, 1907.
    Submitted October 9,
    Decided October 16, 1907.
    From the evidence it appeared, that Baker, on December 22, 1906, contracted with the Beach Lumber Company, to begin work' for it on the 27th day of the same month as wagoner, and to contimie the work for one year, or until he had repaid to the company $20 received from it by him under the contract, the company agreeing to pay him $1.50 a day for. the work. He did not begin work and did not repay the money or any part of it. The accusation is dated May 28, 1907. In his motion for a new trial, Baker contended that the verdict was contrary to law and to the evidence, because it appeared that the time in which the labor was to be performed had not expired when the accusation was preferred; that sufficient time was left to him to earn the money obtained on the contract.
   Hill, C. J.

1. This ease is controlled by the decisions of this court in Mosely v. State, and Harwell v. State, ante, 189, 613 (58 S. E. 1111), and by the decision in Millinder v. State, 124 Ga. 452 (52 S. E. 760).

Judgment affirmed.

James R. Thomas, Joseph A. Morris, for plaintiff in error.

V. E. Padgett, solicitor, contra.


text:
    304.
    Thomas & McCafferty v. Siesel.
   Powell, J.

1. Under the decision of the Supreme Court in the certified case of Lyndon v. Georgia Railway & Electric Co., 129 Ga. 353 (58 S. E. 1047), wherein former contrary rulings are modified and overruled, the writ of error in the present case is not subject to dismissal.

2. Where exception is taken to the refusal of the court to allow an amendment to pleadings, the proffered amendment should bo set out, literally or in substance, in the bill of exceptions, or attached as a duly authenticated exhibit thereto. This court can not consider it, if it be brought up in the transcript of record. Walker v. Equitable Mortgage Co., 114 Ga. 862 (7) (40 S. E. 10).

3. It is not error for the court to strike, on demurrer, an ambiguous and evasive answer to a suit on promissory notes. Brinson v. Birge, 102 Ga. 802 (30 S. E. 261).

4. A plea of non est factum is subject to be stricken on demurrer, when It does not unequivocally deny that the notes sued on are the act and deed of the defendant. Lester v. McIntosh, 101 Ga. 675 (29 S. E. 7).

5. A plea of payment which fails to allege when, how, and to whom the payment was made is properly stricken on demurrer. Wortham v. Sinclair, 98 Ga. 173 (25 S. E. 414); O’Neal v. Phillips, 83 Ga. 550 (10 S. E. 352); Atlantic Coast Line R. Co. v. Hart Lumber Co., 2 Ga. App. 88 (58 S. E. 316).

6. The title of the holder of a note can not be inquired into, unless 1': necessary for the protection of the defendant, or to let in a defense which he seeks to make. Civil Code of 1895, § 3698.

7. Where, in an answer by paragraphs to a petition bringing suii on promissory notes, the defendant makes, in answer to one of the paragraphs, •a general denial of the indebtedness, but such answer nowhere sets m any legal defense, the answer is properly stiicken on demurrer. Johnson v. Cobb, 100 Ga. 139 (2) (28 S. E. 72). Judgment affirmed.

Complaint, from city court of Macon — Judge Hodges. September 8, 1906.

Argued May 1,

Decided October 22, 1907.

S. Siesel, surviving partner of the firm of S. Siesel & Company, sued Thomas & McCafferty on four promissory notes, which he alleged were executed and delivered by the defendants to S. Siesel & Company for a valuable consideration on September 9, 1892 (the date recited therein). The answer contained the following paragraph: “Defendants deny that any note of any kind was ever executed and delivered to said S. Siesel & Company for a valuable consideration, and that any note of any kind is now due and owing bjr the said defendants. Defendants further say that they did have business transactions with S. Siesel & Company which were all wound up, and the respective accounts of said S. Siesel & Company with these defendants were adjusted; and defendants further aver that if any notes were ever signed by this defendant, payable to S. Siesel & Company, the same' have been fully paid and discharged. Defendants further say that they are unable specifically to admit or deny the execution of any particular note,-as set out in said petition; for the reason said notes are alleged to have been executed in 1892, and, in a suit filed in April, 1906, they have no information, further than to the effect that every indebtedness, all notes and mutual accounts existing between defendants anl the said'S. Siesel & Company, had been adjusted and paid years ago. Defendants herein further say that neither S. Siesel nor S. Siesel & Company are owners of any such notes signed bjr these defendants.” The allegation that no payment except $100 was ever made on the notes is denied'generally. The answer contains nothing’ further as to execution of the notes, or as to payment. The plaintiff demurred generally to the answer, contending that it was ambiguous and evasive; and, by special demurrer, -made the' objections indicted in the 4th and 5th divisions of the foregoing decision. The transcript of the record contains what purport to be amendments to the answer, with entries showing that they "were filed and disallowed. The bill of exceptions states that “the court . . disallowed said amendments, and . . sustained said demurrer to said plea and answer, and ordered the same stricken, and rendered judgment for the plaintiff ; to which ruling of the court in striking said demurrer to the said plea and answer of said defendants, and in refusing and disallowing the said two amendments offered by defendants to their p>lea and answer, and in rendering said judgment, the said defendants, . . now here plaintiffs in error, then and there excepted and now here except, and assign the same as error, and ■say: 1st. That the court erred in refusing to allow the said answer presented by defendants to their plea and answer, and in ■disallowing and refusing same. 2d. The court erred in sustain- ■ ing the demurrer of plaintiff to defendants’ plea and answer, and in ordering defendants’ plea and answer stricken.” No amendment of the answer is set out in the bill of exceptions, but it specifies certain amendments of the answer, as a part of the record to be sent up from the court below. The record shows that the ■court rendered judgment for the amount sued for.

Counsel for the defendants in error moved to dismiss the writ •of error, on the ground that “there is no effective or sufficient assignment of error, on any final judgment;”'and cited Montgomery v. Reynolds, 124 Ga. 1053, and cases there cited. >

Roland Ellis, Richard Curd, Anderson, Felder, Rountree & Wilson, for plaintiffs in error.

Nottingham & Cabaniss, contra.


text:
    478.
    NATIONAL SURETY COMPANY OF NEW YORK v. MEDLOCK.
    1. A liability on account of a libel is not released by a discharge in bankruptcy.
    '2. A corporation is not dissolved by. an adjudication that it is bankrupt.
    3. When the plaintiff in an action for libel sues out process of garnishment as ancillary thereto, and the garnishee admits by answer sufficient funds, upon a verdict and judgment being obtained against the defendant in the main case the plaintiff may .proceed to take judgment against the funds caught by tlie garnishment, and, when the garnishment has been dissolved by the filing of a statutory bond, may also ■enter up judgment against the surety, notwithstanding the fact that pending the suit the defendant has been adjudged bankrupt, if the fling of the petition in bankruptcy occurs more than four months after the summons of garnishment has been seryed and the dissolving bond given.

      {a) The bankruptcy of the defendant does not discharge the surety on the dissolving bond.

      (B) Irrespective of whether the lien upon the funds impounded by the ' service of the summons of garnishment attaches before final judgment or not, the service of the summons of garnishment so far places the-funds found in the hands of the garnishee (especially when the money is paid into court or in lieu thereof a dissolving bond given) into the: custody and control of the court administering the case that it will be-entitled to hold and subject the fund despite the subsequent bankruptcy • of the defendant, if the petition in bankruptcy be filed more than four months after such custody is obtained.
    Garnishment, from city court of Atlanta — Judge Reid. April 15,1907.
    Argued October 14,
    Decided October 22, 1907.
    On February 4, 1904, Carrie E. Medlock instituted suit against the Atlanta News Publishing Company, on account of the mali-n cious publication of a libelous article concerning her. Ancillary to this action she sued out garnishment and caused summons to-be served on the Maddox-Eucke-r Banking Company. On February G, 1904, the defendant, for the purpose of dissolving the garnishment, filed a statutory bond, with the National Surety Company of New York as surety. The section of the Civil Code (§4718) under which this bond was given is as follows: “In any case when garnishment has been issued, the .defendant may dissolve such garnishment upon filing in the clerk’s office of the court, or with the justice of the peace, where suit is pending or judgment, was obtained, a bond with good security, payable to the plaintiff, conditioned for the payment of the judgment that shall be rendered on said garnishment. The plaintiff may enter up judgment upon such bond against the principal and securities, as judgment may be entered against securities upon appeal, whenever said plaintiff shall obtain the judgment of the court against the property or funds against wjiich garnishment was issued.” On May 2, 1904, the garnishee answered, admitting sufficient assets. No-traverse was filed to this answer. On February 18, 1907, the Atlanta News Publishing Company was adjudged bankrupt and a. trustee appointed. On March 27, 1907, the original action came up for trial. The defendant offered an amendment to its plea,‘ alleging its bankruptcy and praying an abatement of the suit (alleging as a basis therefor that the effect of the adjudication in bankruptcy was to end its corporate existence), and also praying a stay -of the suit. On motion of the plaintiff this plea was stricken and disallowed. _ The case proceeded to trial, and a verdict was rendered in favor of the plaintiff for $1,000. After the verdict and judgment against the defendant, the plaintiff moved the court for a judgment against the fund so admitted by the MaddoxRucker Banking Company, and also for a judgment against the defendants, the Atlanta News Publishing Company, as principal, and the National Surety Company of New York, as security on the said dissolving bond, for the sum of $1,000 and costs. To the-rendition of judgment against them, or either of them, the Atlanta News Publishing Company, as principal, and the National Surety Company of New York, as security on the dissolving bond, objected on the following grounds: “(1) Because, the defendant being in bankruptcy, the court was without authority of law to try and render judgment in the case against the Atlanta News Publishing Company; for which reason the verdict and judgment against the defendant was null and void, and hence no judgment could be rendered against the bond, or the surety thereon, given for the dissolution of the garnishment. (2) Because the adjudication of the defendant, the Atlanta News Publishing Company, as a bankrupt, within four months of the verdict and judgment against it in the main case, rendered the bond to dissolve the garnishment null and void under the bankruptcy law, and hence no judgment could be entered thereon. (3) Because, the defendant being in bankruptcy, no legal judgment could be entered against the fund in the hands of the .garnishee, and hence no judgment could be entered against the defendant and the security on the bond to dissolve the garnishment. (4) Because, the defendant being in bankruptcy, no legal judgment could be rendered against the funds in hands of garnishee, had the same been paid in court, without creating á preference in favor of plaintiff against all other creditors of defendant, as against said fund, in violation of the bankruptcy law; and hence no judgment could be entered against defendant and the security on the dissolution bond, the only obligation therein being to answer .such judgment as might be rendered on the garnishment. (5) Because, in order to render judgment on the dissolution bond, the same would have to be entered against both the defendant, as principal, and the security; in order to do which a second judgment, based on the judgment in the main case, would have to be entered against the defendant, which, the defendant being in bankruptcy, the court could not legally do, as this would be in violation of the bankrupt law; and, without judgment against the principal in the bond, no judgment could be entered against the security thereon. (6) Because in Georgia no lien is created in favor of the plaintiff by service of simple garnishment issued upon a pending, ordinary, common-law action; and without lien, the defendant being in bankruptcy, no judgment could be entered against the funds in the hands of garnishee to the exclusion of other creditors of the defendant; and hence no judgment could be entered on the bond dissolving the .garnishment.”
    Bach and all of these objections the court overruled, and allowed the plaintiff to take an order adjudging the funds in the hands of Maddox-Bucker Banking Company, as garnishee, subject to the garnishment in the plaintiff’s favor; and also entered judgment in favor of the plaintiff against the Atlanta News Publishing Company, as principal, and the National Surety Company of New York, as security on the dissolving bond, for $1,000 and costs. To the judgment rendered upon the bond the Atlanta News Publishing Company and the National Surety Company both except; and this is the only exception taken in the record. '

      McDaniel, Alston & Blade, Dorsey, Brewster, Howell & Heyman, Westmoreland Brothers, L. P. Skeen, for plaintiff in error.

      Rosser & Brandon, Walter T. Colquitt, B. J. Conyers, contra.
   Powell, J.

(After stating the facts.)

A discharge in bankruptcy does not release the bankrupt from liability for “wilful and malicious injuries to the person or property of another.” Bankruptcy act of 1898, c. 541, § 17 (2) (30 Stat. 550, U. S. Com. St. 1901, p. 3428). A libel is a wilful and malicious injury to the person of another. Johnson v. Bradstreet Co., 87 Ga. 79 (13 S. E. 250); Cole v. A. & W. P. R. Co., 102 Ga. 479 (31 S. E. 107); Cox v. Strickland, 120 Ga. 106 (47 S. E. 912). Only suits which are “founded upon claims for which a discharge would be a release” are to be stayed by reason of an adjudication in bankruptcy (Bankruptcy act, c. 541, §11, 30 Stat. 549, U. S. Com. St. 1901, p. 3426); other actions may properly proceed to judgment. A judgment so'obtained is to be given as full and extensive force and effect as if bankruptcy had not intervened. ■

A corporation, by being adjudicated bankrupt, is not thereby civilly dead; it is not thereby dissolved. Holland v. Heyman, 60 Ga. 181. To use the sententious language of Judge Bleckley in the case just cited, "'your money,' not 'your life,' is the demand made by the bankruptcy act.'

Having legally obtained a judgment against the defendant corporation, the plaintiff was further entitled to pursue its enforcement by every means known to the law of the State and not forbidden by the Federal statute. Let us see if any obstacle stood between it and the end of subjecting the dissolving bond filed under the ancillary proceedings by garnishment. Before judgment can be rendered upon such dissolving bond, two prior judgments are necessary, under our practice: first a judgment in the main action, and then a judgment declaring the money or property, admitted or found to be in the hands of the garnishee, subject. The first judgment being obtained, the second follows as a matter of course, if the answer of the garnishee admits sufficient effects and no traverse is offered and no statutory claim is filed, seeking to have the fund declared, for any sufficient reason, not subject. Garden v. Crutchfield, 112 Ga. 274 (37 S. E. 368). In the present case no traverse or claim was filed to the answer of the garnishee, and the second judgment was therefore properly entered; indeed, to the rendering of this judgment no exception is filed by either of the plaintiffs in error. These two judgments having been obtained, it is the duty of the court to enter the final judgment against the bond, the condition of which is that the defendant and his surety ''shall pay the judgment thát shall be entered on the garnishment/’ — that is to say the second judgment mentioned above, — unless good cause to the contrary be shown. In Klipstein v. Allen-Miles Co. (136 Fed. 385, 69 C. C. A. 229, 14 Am. Bk. R. 15), the Hnited States Circuit Court of Appeals for the fifth circuit had under review a ease involving a similar bond given under this statute of our State in a garnishment proceeding, sued out» within four months of the adjudication in bankruptcy against the defendant in the main suit, which was an action upon a debt from which a discharge in bankruptcy would be a release. In that case the court held that the original action being founded on a debt discharg^ble in bankruptcy, no judgment could be rendered against the defendant in the main action; and that the lien of the garnishment upon the funds in the hands of the garnishee having arisen within four months prior to the adjudication in bankruptcy, no judgment could be had upon the answer of the garnishee, without working a preference under the bankruptcy act; hence, neither of the two preliminary judgments essential to a judgment on the dissolving bond being obtainable, the third or final judgment, necessary to fix the liability of the surety on the bond, could not be rendered. A very exhaustive discussion of the garnishment proceedings of this State appears in that case. The gist of the decision is contained in this extract: “The liability of the surety on the dissolving bond is not. altered by the discharge of the bankrupt defendant, but the discharge prevents the happening of the contingency on which liability depends.” . The decision of our Supreme Court in the case of Odell v. Wootten, 38 Ga. 225, to the same effect, is quoted approvingly. Compare Philip Carey Co. v. Viaduct Place, 1 Ga. App. 707 (58 S. E. 274). Tn the case at bar, the contingency on which the liability of the surety depends has happened; judgment has been regularly obtained both against the defendant in the main action and against the fund impounded by the garnishment; and, as the court says in the Klipstein ease, the liability of the surety is not altered by the bankruptcy of the principal. See Bankruptcy act, §16. The judgment against the surety on the dissolving bond was therefore properly rendered. If the enforcement of the judgment has the effect of giving to this plaintiff a preference over the other creditors of the bankrupt corporation, in that she will receive .a higher percentage of her debt than they will receive, the answer is that such preference, in the first place, is not being enforced against the assets of the bankrupt estate; and, in the second place, it arises not in contravention of the bankruptcy act, but through its very terms, which render debts of the character of the one held by the plaintiff not discharged, and which do not prevent a creditor of the bankrupt from taking full satisfaction from a personal surety. *

Very ably it has been argued to us that under the laws of this State, a summons of garnishment creates no lien, and that the lien arises only when the judgment is entered on the answer of the garnishee; and that since the judgment against the funds admitted by the garnishee was dated subsequently to the adjudication in bankruptcy, such judgment immediately falls as being in contravention of the bankruptcy act. In support of this contention we are cited to the case of Willis v. Parsons, 13 Ga. 335, wherein the court, in the discussion, says, of a garnishment founded on a pending proceeding, not an attachment: “It is true, that the act intended to afford a new remedy in certain cases therein specified, by authorizing summons of garnishment to issue 'as in cases of attachment/ but not 'to create a lien as in cases of attachment.”. In that case the court was merely discussing the peculiar rule ■existing in this State in the distribution of funds brought into ■court, between creditors whose respective rights are based upon attachment, garnishment, and common-law judgments. That case merely holds that by the terms of the statutes regulating prioridies, under a rule to distribute, the priority between a garnishing creditor and a creditor by common-law suit is to be determined by a comparison of the dates of their respective main judgments; and the fact that the fund came into court by reason of the service of a summons of garnishment on behalf of one of the creditors prior to the date of the other judgment will not give the dormer the superior right unless his judgment in the main action be also the first obtained. Compare, in this connection, the case •of Andrews v. Kaufman, 60 Ga. 670, wherein it is held that upon rule to distribute, a creditor who holds a common-law judgment, prior in date to the main judgment of another creditor who has proceeded by attachment, is to be preferred to the latter, although the action in which the common-law judgment was obtained was instituted subsequently to the levy of the attachment. Yet it will not be disputed that the levy of the attachment creates a lien. See Civil Code, §§ 4577, 4578. It may be noted that by an amendment (Ga. Laws 1890-1, p. 75), now incorporated as a part of the code section last cited, an attachment will have priority over an-•ordinary judgment obtained on a suit instituted after the levy. In Armour Packing Co. v. Wynn, 119 Ga. 683 (46 S. E. 865), a case wherein the summons of garnishment was sued out within four months of the bankruptcy of the defendant, although the garnishment was predicated upon a- prior judgment more than four months old, the court held that the lien on the funds in the hand of the garnishee was “obtained through a legal proceeding instituted within four months prior to the filing of the petition for bankruptcy,” and was rendered void § 67 (f) of the bankrupt act. In the opinion in that ease, the following (which is plainly obiter) appears: “It has been several times held, where an ordinary action has been brought and a garnishment summons is served, and a judgment is obtained by the plaintiff against the defendant within four months of the filing of the petition in bankruptcy, and a like judgment is obtained thereafter against the garnishee, that the lien of the garnishment is rendered null, even though it may have provisionally attached by being served more than four months before the filing of the petition in bankruptcy. In re Lesser, 108 Fed. 201; in re McCartney, 109 Fed. 621, 6 Am. Bk. R. 367.” The learned Justice who wrote the opinion manifestly overlooked the fact that Lesser’s case, on which this statement is predicated, had been reversed by the Supreme Court of the United States in the case of Metcalf v. Barker, 187 U. S. 165 (9 Am. Bk. Rep. 36, 23 Sup. Ct. 67, 47 L. ed. 122).

Whether the summons of garnishment creates a lien depends, upon the particular shade of meaning given to the word “lien.” If it be used in the old common-law sense of the right to immediately grasp or hold in manual possession a chattel till something be performed or done by the owner, then a summons of garnishment does not create a lien on the funds in the hands of the garnishee. But the word has also a broader meaning. “The term ‘lien,’ in a narrow and more technical sense,. signifies the right by which a person in possession of personal property holds, and detains it against the owner in satisfaction of a demand; but it has a more extensive meaning, and in common acceptation is understood and used to- denote a legal claim or charge on property, either real or personal, for the payment of any debt or duty. Every such claim or charge is still a lien on the property, although the property be not in the possession of him to whom the debt or duty is due.” “A lien is. defined to be a hold or claim which one has upon the property of another as security for some debt or' charge. At common law there could be no lien without possession. It is therein defined as a right in one man to retain that 'which is in possession and belonging to another. In maritime law, liens exist independently of possession, either actual or constructive, and in the courts of equity the term ‘lien’' is used as synonymous with a charge or incumbrance upon the thing where there is neither jus in re nor ad rem, nor possession of the thing.” See 5 Words’& Phrases Judicially Defined, 4144 et seq., where these and a variety of similar definitions are given. See also in re Byrne, 97 Fed. 762, 764; Downer v. Brackett, 21 Vt. 599, 602; U. S. Blowpipe Co. v. Spencer, 40 W. Va. 698 (21 S. E. 769). Whether the service of a summons of garnishment creates a technical lien on the funds in the hands of the garnishee or not, still, especially when the garnishee admits liability and. pays the fund into court, or, in lieu of such actual payment, a statutory bond is substituted, the court acquires such a hold upon the money or the res, such a right to retain and administer the fund (or what has been substituted for the fund, — the bond), that the subsequent adjudication in bankruptcj'-, made more than four months thereafter, will not disturb it. Pickens v. Roy, 187 U. S. 177 (23 Sup. Ct. 78, 47 L. ed. 128), s. c. 9 Am. Bk. R. 47, sub nom. Pickens v. Dent, (45 C. C. A. 522). In that case the court, reasserting the rule that the court which first obtains rightful jurisdiction over the subject-matter shall hold it, quotes approvingly from Frazier v. Southern Loan & Trust Co., 99 Fed. 707 40 C. C. A. 76) 3 Am. Bk. R. 710), as follows: “The bankrupt act of 1898 does not in the least modify this rule, but with unusual carefulness guards it in all of its detail, provided the suit pending in the State court was instituted more than four months before the district court of the United States had adjudicated the bankruptcy of the party entitled to or interested in the subject-matter of such controversy.” See also, in the same connection, Metcalf v. Barker, supra; Collier on Bankruptcy (6th ed.), 571; Boston Merc. Co. v. Ould-Carter Co., 123 Ga. 458 (51 S. E. 466).

Judgment affirmed.


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    486.
    GOODWILL v. PEEPLES.
    Possessory warrant will lie against one who in a stock-law county impounds trespassing live stock and fails within due time to give the statutory notice.
    Certiorari, from Marion superior court — Judge Little. April 23, 1907.

      Submitted October 15,
    Decided October 22, 1907.

      George P. Munro, for plaintiff in error.

      W. D. Crawford, contra.
   Powell, J.

The hogs of the defendant in error, who was the plaintiff in the court below, strayed into the growing crops of the plaintiff in error, in a stock-law county. The latter impounded them; but failed to estray them as required by the Political Code, §1775. On the fifth day, a brother of the plaintiff, who himself had wrongfully obtained possession of the hogs prior to the time they escaped into the defendant’s crop, made an arrangement with the defendant whereby the latter was to retain the hogs till he should pay him the damages. The plaintiff, finding the hogs thus in the possession of the defendant, brought possessory warrant and secured a favorable judgment. The defendant took certiorari, which, on hearing in the superior court, was overruled; and he now brings error.

The possession of the defendant was originally lawfully acquired, and for three days was lawfully retained. After the third day it became unlawful and criminal. Political Code, §1776. This raises the question whether possessory warrant lies where the defendant’s possession is originally lawful but subsequently becomes unlawful. Such a case does not appear to be within the words of the statute. Civil Code, §4799. However, in the case of Meredith v. Knott, 34 Ga. 222, the property came into the defendant’s possession peacefully and lawfully, but afterwards “the possession was changed, and that of Meredith was wrongful, tortious, and fraudulent;” and, says the court, “in all such cases we hold that a possessory warrant is the proper remedy.” In the case of Sheriff v. Thompson, 166 Ga. 436 (42 S. E. 738), the precise question again came before the Supreme Court, which, after citing the ease of Meredith v. Knott, and after reviewing -all intermediate cases apparently in conflict to that ruling, adhered to the former decision. In that case Justice Little, who, in his subsequent capacity of judge of the superior court, tried the present certiorari in the court below, dissented. We are inclined to agree with the view then entertained by him, at least to the extent of thinking that such cases are not within the letter of our statute on possessorywarrants; and we unhesitatingly agree with him in his. present ruling that the decision of the Supreme Court is binding precedent and controlling in this case. Judgment affirmed.


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    495.
    HINES v. McCOMBS et al.

    1. One who by will is made not only the devisee of a life-estate in the lands of the testator, but is also made executor of the will and trustee of the fee, and is given full power of disposition as to all property, real, personal, or mixed, to the end that an income may be derived for the support of himself and children, may lawfully execute a lease of reasonable duration upon tlie lands of the estate; and such a lease will not expire upon his death, even though it occur before the last year of the lease.' ‡

    2. In such a case the executor or trustee may transfer to another, by assignment, the rent notes taken as consideration for the lease; and the right of the transferee, in the rent will be superior to that of the remainderman, even after the death of the life-tenant.
    Appeal, from Baldwin superior court — Judge Lewis. January 16, 1907.
    Submitted October 15,
    Decided October 22, 1907.
    Isabella Hendrix died, leaving a will. So far as they are material to this controversy, the provisions of the will are substantially as follows: Her husband, H. E. Hendrix, is appointed executor and trustee; and in both capacities he is relieved from accountability to any court for his conduct. To the said trustee is devised all the testator’s property, real, personal, and mixed. "Said H. E. Hendrix, as trustee as aforesaid, shall have absolute cusiody and control of each and all of said property, with power to .sell or exchange any part thereof, as a change of investment for the purpose of this will, or to make advancements to our children, in his discretion, to provide for their maintenance and education, then especially to secure a maintenance to and for himself therefrom during his natural life. . . At the death of the said H. E. Hendrix, trustee, all of said property remaining, or those ■substituted therefor by exchange, shall be equally divided between my surviving children and their children, per stirpe, having regard to any advancements that may have been made to any.”
    In pursuance of his power under the will, H. E. Hendrix rented ■certain of the lands of the estate to Tom Begin for the years 1903 and 1904 and took from Legin a rent note therefor, the note being made payable to “H. E. Hendrix, Ext.” On May 15, 1903, Hendrix transferred the note to G-. T. Whilden, signing the transfer “H. E. Hendrix, Ext.” In August, 1903, Whilden transferred the note to the plaintiff in error, Hines. In May, 1903, II. E. Hendrix died. Hines collected the rents from Legin for the year 1903; but in December of that year the latter surrendered the possession to Mrs. McCombs and Mrs. Allen, who were the children of Mrs. Hendrix and therefore remaindermen under her will, and Avho had also qualified as administrators de bonis non c. t. a. on her estate. They rerented the land to Legin for the year 1904. This was done without Hines’ knowledge or consent. In the fall of 1904 Legin brought the rent cotton and delivered, it to Mrs. McCombs and Mrs. Allen in payment of his rent. Hines caused a distress warrant to be levied on the cotton, and it was resisted by Legin, as well as by Mrs. McCombs and Mrs. Allen, their several rights being, by a consent arrangement, joined in one defense. To a judgment adverse to him Hines brings error.

      Hines & Vinson, for plaintiff.

      D. B. Sanford and D. S. Sanford, contra.
   Powell, J.

(After stating the facts).

Under the will, H. E. Hendrix was not only the executor and the holder of the life-estate, but he was also the donee of an additional power, not ordinarily attaching either to the office of the executor or to the estate of a life-tenant. Viewed solely as a tenant for life, he would have possessed the statutory power of control over the entire estate for the purpose of rentals and leases only to the end of the year of his death. See Story v. Butt, ante, 119, (58 S. E. 388). However, a review of the English cases will show that long before „ the enactment of the statute of 14 & 15 Vict. c. 25, from which our section of the Civil Code (§3093) was adapted which gives the statutory power to the'life-tenant of making a rent contract binding to the end of the year of his death,, or of the British Land-Settlement Acts, which have further extended this power, it was not uncommon for grantors and testators to confer upon life-tenants, or trustees for life-estates, the power of making leases which would be binding after the death of the life-tenant; and the right of grantors and testators to make the grant of such powers has never been questioned, either before or since the passage of the statutes referred to above. Hnder the will before us, H. E. Hendrix had not only the right to’ enjoy the estate for life, but also to dispose of any or all of it, and especially to derive an income therefrom; and the remaindermen,'by express terms of the will, took an estate in only the “property remaining” undisposed of at his death. We do not mean to say that if he had attempted to sell any of the lands, he would not have been compelled to expose it at public outcry, under the Civil Code, § 3460; but to rent lands for two years is not to sell them. Hutcheson v. Hodnett, 115 Ga. 990 (42 S. E. 422). The terms of the will in that case are very similar to those of the will now in question; and we quote the headnote as pertinent here: “A trustee in possession of land, charged with the duty of managing and controlling it and -using the income therefrom for the maintenance, support, and education of the beneficiaries of the trust, may grant leases of the same, provided the time fixed for the duration of the leases is not unreasonable, and the amount stipulated to be paid as Tental is a reasonably fair compensation for the use of the land for the time specified in the leases, they being otherwise reasonable in their terms.” The rent contract between Hendrix and Legin was a valid contract for the full term. We probably should call attention to the fact that in the case just cited the trustee was expressly forbidden to encroach upon the corpus for the purpose of raising income for the maintenance of the beneficiaries, while in the present case Hendrix was expressly authorized to do so. The legal fee stood in him as trustee; and “Trustees who have the legal fee in lands may lease them to any extent, the right being incident to the legal estate.” 1 Wash. Real Prop. (6th ed.) 629, cited approvingly in Hutcheson v. Hodnett, supra. Possibly in this State this general statement should be limited to leases under which only a usufruct passes.

The further question that arises is, did Hendrix have the righL to transfer the rent note, which we have just held was lawfully taken by him ? This rent note, under the law, was income. Manget v. Hightower, 63 Ga. 217. He had full power of disposition over the income. The note was not payable to his intestate, but to himself, either personally or in his representative capacity. Tn either event, section 3449 of the Civil Code, regulating the mode of sale of insolvent papers of estates, is not applicable; but the common-law rule which gives the trustee power to transfer a paper payable to- himself, though taken in his representative capacity, applies. See Thompson v. Thompson, 77 Ga. 697 (3 S. E. 261). If, instead of taking a note, he had been paid in advance, in cash, for the rents for the full term, he could have spent the cash 'without accountability; he had a similar right to take a note instead of cash, and to convert the note into money and use it. The tenant, by attorning to the remaindermen, could not .divest Hines of his lien upon the crops raised on the rented premises.

Judgment reversed.


text:
    501.
    HIXON v. CALLAWAY, sheriff.
    1. Rules against officers of courts for breaches of duty are not within the purview of statutes regulating defaults under ordinary procedure by petition and process. The court, in its discretion, may allow the officer to make answer at any time before the rule is made absolute.
    2. Whenever an execution is placed in the hands of a levying officer, with direction to levy it (the defendant being in possession of property), and he fails to make the money within the time prescribed by law, the law presumes injury to the plaintiff in fi. fa. The officer may successfully defend against a rule brought against him to establish liability in such cases, by showing that, despite the defendant’s possession of the property, there was outstanding in a third person a title thereto superior to the plaintiff’s judgment.
    3. The lien of a judgment duly recorded on the general execution docket is,' after the maturity of a growing crop of the defendant in fi. fa., superior to the title thereto obtained through a bill of sale to secure a debt, executed by the defendant in fi. fa. to a third person after the judgment is recorded, but before the crop is mature.

      (а) The act of December 21, 1899, providing that mortgages given to secure supplies necessary to make a crop shall be superior to older judgments, does not include within its purview bills of sale given to secure such supplies.
    (б) It appearing in this case that the defendant in fi. fa. was in possession of a mature crop sufficient in amount to pay off the judgment of the plaintiff in fi. fa., and that this fi. fa. was placed in the hands of the .sheriff, with directions to levy, and the excuse of the sheriff for not levying being the existence of a bill of sale to secure a debt, executed by the defendant to a third person subsequently to the recording of the plaintiff’s fi. fa. on the general execution docket, the court erred in. not making the rule against the sheriff absolute.
    Rule, from city court of Washington — Judge Hardeman. April 29, 1907.

      Argued October 15,
    Decided October 22, 1907.

      W. A. Slaton, J. W. Hixon, for plaintiff in error.

      F. H. Colley, William Wynne, contra.
   Powell, J.

The plaintiff in error, Hixon, had a judgment against Henry Tunnell, dated April 15, 1906, on which execution was issued April 19, 1906, and recorded on the general execution docket May 7, 1906. In the fall of 1906 he placed the execution in the hands of the defendant in error, Callaway, then sheriff of Wilkes county, for levy. He pointed out certain'mules and a crop in the possession of the defendant in fi. fai, to be levied on. The sheriff failed to levy, and at the January term, 1907, Hixon brought petition for rule against him. The judge issued the rule, requiring the sheriff to answer instanter; and this was served upon the sheriff. The sheriff did not answer until the April term of the court; but no rule absolute was taken. At the April term the sheriff answered substantially that he had not levied, because the defendant in fi. fa had no property subject to levy. The plaintiff moved to strike the answer, because it was not. filed at the first term; the court overruled the motion; and this ruling is the basis of an exception in the record. The plaintiff traversed the answer, and evidence was introduced. There was undisputed evidence that the mules were -not subject; and the plaintiff abandoned any claim as to these. As to the crop, it appeared that the defendant in fi. fa., as a tenant of one Carlton, made crops in the year 1906, of greater value than the plaintiff’s fi. fa; On May 19, 1906, to secure the necessary supplies in the sum of $250, he executed to the Tyrone Mercantile Company a bill of sale to the growing crop. This bill of sale was recorded May 30, 1906. On account of this bill of sale the sheriff declined to levy. The court, upon the hearing, discharged the rule, and the plaintiff in fi. fa. brings error.

As to the exception that the court erred in not striking the answer of the sheriff because it was not filed at the first term, we hold that the court did not abuse its discretion. Eules against officers are sui generis, and are governed more largely by the discretion of the court in each particular case than by the technical rules of ordinary procedure. In an ordinary action begun by petition and process, the judge would not have had the power to allow the belated answer filed. Beacham v. Kea, 118 Ga. 406 (45 S. E. 398); Dodson Printers’ Supply Co. v. Harris, 114 Ga. 966 (41 S. E. 54). But rules against officers are not within the purview of these statutes 'regulating defaults. Holcombe v. Dupree, 50 Ga. 336; Wakefield v. Moore, 65 Ga. 268. While the court might have made the. rule absolute at the first term, for failure of an answer, yet, not having done so, he had the right to allow the answer to be filed, subsequently. See Brantley Co. v. Southerland, 1 Ga. App. 806 (57 S. E. 960).

Whenever an execution is placed in the hands of an officer for collection, and he fails or ’ neglects to collect it in the time prescribed by law, the law presumes that the plaintiff was injured; and upon a rule against the officer to show cause why he should not be attached for contempt, the burden is upon him to show that the plaintiff was not injured.” Reeves v. Parish, 80 Ga. 222 (4 S. E. 768). The plaintiff makes a prima facie case for the full amount of his judgment by showing that a valid execution was placed in the hands of the sheriff for levy, and that the defendant in fi. fa. was in possession of sufficient property to satisfy it. The sheriff may successfully defend by showing that, despite the defendant’s possession of the property, there was a. title thereto paramount to the plaintiff’s judgment, outstanding in a third person. Brannon v. Barnes, 111 Ga. 850 (36 S. E. 689); Wilkin v. American Freehold Land Co., 106 Ga. 182 (32 S. E. 135). The measure of liability is the actual injury sustained by the plaintiff in fi. fa.

This brings us to the question whether the bill of sale of the Tyrone • Mercantile Company was superior to the plaintiff’s judgment. In point of time, both of actual creation and of record, the judgment was superior. Ordinarily this would make a case where the outstanding title would not be paramount to the plaintiff’s judgment, and would therefore not afford a defense to the sheriff,' upon the rule. However, two reasons are set up why this rule does not apply. The first is based upon the act of December 21, 1899 (Ga. Laws 1899, p. 78), which provides that “thelien of mortgages on crops, which mortgages are given to secure the payment of debts for money, supplies, and other articles of necessity, including live stock, to aid in making and gathering such crops, shall be superior to judgments of older date than such mortgages.” Since the Tyrone Mercantile Company did not take a mortgage, which is a mere lien, but a bill of sale, which passes title, the statute is not applicable. As Justice Lamar, in the case of Franklin v. Callaway, 120 Ga. 383 (47 S. E. 970), says, this act “is limited in its application.” “The solitary provision is that such mortgages for supplies shall take priority over older judgments.” 1'n many respects bills of sale to secure debts are similar in effect to mortgages; but in other cardinal features they are totally different. The existence of such a bill of sale, when superior to the judgment, prevents levjr of the fi. fa. until the amount of the debt due on the bill of sale is paid or tendered. Shumate v. McLendon, 120 Ga. 396 (5, 6, 9) (48 S. E. 10); Civil Code of 1895, § 5433. The existence of a mortgage, although superior to the judgment, as to rank of the respective liens, does not prevent the levy of the fi. fa; and indeed (to follow the analogy of Price v. Walker, 1 Ga. App. 282 (58 S. E. 61)) would not be a sufficient answer by the officer when ruled for failure to levy; although after the levy and sale the mortgage might take the money on a rule to distribute.

The other contention is based upon the Civil Code, §5425, which provides “No sheriff or other officer shall levy on any growing crop of corn, wheat, oats, rye, rice, cotton, potatoes, or any other crop usually raised or cultivated by the planters or farmers of this State, nor sell the same, until such crop shall be matured and fit to be gathered: provided this, provision shall not prevent any levying officer from levying and selling crops as heretofore practiced in cases where the debtor absconds or removes from the county or State, or from selling growing crops with the land.” It is contended that since the crop was not mature at the date of the execution of the bill- of sale, it was not subject to levy, and that therefore the lien'of the judgment did not attach. Application of general legal principles to cases respecting growing crops Iras given courts and law commentators no little trouble; indeed we are prepared to endorse heartily the frank confession of Chief Justice Simmons in the case of Bagley v. Columbus Southern Railway Co., 98 Ga. 631 (25 S. E. 638, 34 L. R. A. 286, 58 Am. St. R. 325), when, after reviewing a mass of decisions of courts and statements of text-writers, he notes the hopeless confusion and says: “Any one wishing to further entangle himself in the mystic maze of uncertainty and contradiction in which the law governing growing crops ñas become involved, may profitably direct, bis attention to the legion of cases cited by the various text-writers to whom we have above referred — the field thus open to him is promising even unto distraction.” For some of the confusion of opinion existing in this State the decision in Scolley v. Pollock, 65 Ga. 339, must be held responsible. In that case the plaintiff held an old judgment; the defendant in fi. fa sold his crop before, maturity to the claimant, who took possession and cultivated it to maturity; and the court held that the crop was not subject to. the fi. fa, which antedated the purchase. The headnote in that case is in the following language: “Cotton in the field, not matured, as early as the twenty-eighth day of July, is not the subject of levy and sale, and therefore the purchaser of the crop in its then condition from the defendant in execution obtains a good title.” In. the body of the decision, the court, after stating- the facts, cites and sets out the code section above, and immediately thereafter quotes from the case of Pitts v. Hendrix, 6 Ga. 455, as follows: “By law, the growing crop could only be sold separately after maturity. Before maturity of the crops they are appurtenant to the land, constitute a part thereof; and pass by and with the land,”- and" then further says, “Before maturity the crops only constitute an element of value, and are not themselves distinct chattels;”' and then, by what seems to be a glaring non sequitur, holds as we have just shown in the quotation from the headnote of the case. It seems cleat to us that while the statute postpones the time of levy, it does not prevent the lien of the judgment from attaching in the meantime. If, for lack of “corporeal status competent for seizure,” no lien can attach, for the same reason delivery, which is essential to a complete sale, would seem to be precluded. This- and other apparent inconsistencies resulted in this case being brought under review by the Supreme Court in the case of Phillips v. Dean, 76 Ga. 10. After distinguishing the case from th& one then at.bar, the court says: “We were asked to review that case, but it is unnecessary, as we think it differs widely from this. Some of the principles therein expressed, however, are doubted, and will hardly be extended beyond the facts therein, or similar facts to them.” The Supreme Court having left the ease of Scolley v. Pollock, supra, thus doubted, limited, and partially disapproved, we will treat it likewise. The present case, as well as. the case of Phillips v. Dean, supra, is distinguishable from that case, by reason of the fact that the defendant in fi. fa. there delivered possession of his inchoate property to the claimant, who by his cultivation brought it to maturity. Possibly, in such cases the title of the purchaser should be superior to the lien of the judgment until he has been paid for the labor and expense incurred by him in bringing the crop to maturity; and equitable procedure would be necessary to subject the inchoate interest formerly possessed by the defendant in fi. fa. In the case at bar no such state of facts exists. The opening sentences of Chief Justice Bleckley in the opinion in the case of Green v. Franklin, 86 Ga. 360 (12 S. E. 585), while excluding the decision of the question as not being in the case before him, bear an undercurrent of intimation that the lien of a judgment is superior to a subsequent sale of an immature crop. It is not necessary, however, to decide what would be the respective rights of the holder of a lien by judgment and of the holder of a bill of sale (whether absolute, or as security for a debt) prior to the maturity of the crop. The question is as to their rights after the crop has been matured by the defendant in fi. fa. While the lien of the judgment may not seize the crops prior to maturity, it ranks as of the date of the judgment, and not as of the date the crop became mature. This is plain; for if the crop should be seized under two judgments or under a judgment and an ordinary mortgage, we would not, in determining priorities, declare the liens equal on the theory that both attached at the same instant, to wit, the moment the crop became mature, but would look only to their respective dates. The lien of the judgment is enforceable only after the crop is mature; but, under the Civil Code, §12779, when it is properly entered on the general execution docket, it takes precedence over the interest of all persons (holders of special liens declared superior by statute, of course, being necessarily excepted) who thereafter “may have acquired a transfer or lien binding the defendant’s property.” It follows that Hixon’s judgment was superior to the bill of sale of the Tyrone Mercantile Company; and that the court erred in discharging the rule against the sheriff.

Judgmeni reversed.


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    658.
    WOLFE v. THE STATE.
    The trial was fair, the charge unexceptionable, and the verdict supported by the evidence.
    Conviction of shooting at another, from Worth superior court— Judge Spence. July 1, 1907.
    Submitted October 7,
    Decided October 22, 1907.

      Payton & Hay, for plaintiff in error.

      W. E. Wooten, solicitor-general, contra.
   Powell, J.

The defendant was indicted for assault with intent to murder, and convicted of the offense of shooting at ‘another. We have carefully examined the entire charge of the court, to which many exceptions were taken in the motion for a new -trial, and we are struck with its clearness and its fairness. Of all the charges which it has been our pleasure and duty to review since we have been in this service, we have not noted any which excels this one in these cardinal particulars. Indeed, in light of the- evidence, as shown in the record, the verdict as rendered is a testimonial to the skill of counsel for plaintiff in error as trial advocates; for the evidence of the defendant’s guilt of the higher crime of assault with intent to murder is almost overwhelming; in fact the state of the evidence is almost, though not quite, such as to make the verdict of shooting at another unjustifiable, under the principles of the Kendrick case, 113 Ga. 759 (39 S. E. 286). We have examined all the exceptions made in the record. Since they present no new questions of law, it will be profitless to set them out at length. No good ground for'disturbing the verdict is shown, and the judgment refusing a new trial is . Affirmed.


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    687.
    Jenkins v. The State.
   Russell, J.

1. The evidence fully authorized the verdict, which was ap-r proved by the trial judge; and no reason appears why a new trial should be granted.

2. Under the evidence in the record, the jury were authorized to infer that the goods which had been recently stolen and which were found in the possession of the defendant’s wife had been delivered to her by the defendant, and that the possession of the wife was, constructively, the possession of the husband, regardless of the marital relation existing between them. The evidence for the State, though entirely circumstantial, excluded every other reasonable hypothesis than that of the defendant’s guilt. Judgment affirmed.

Indictment for burglary, from Terrell superior court — Judge Worrill. July 6, 1907.

Submitted October 7,

Decided October 22, 1907.

Ed Jenkins was convicted of burglary. He excepted to the refusal of a new trial. The motion for a new trial was on the general grounds, that the verdict was contrary to law, evidence, etc. From the evidence it appeared, that the dwelling-house of the prosecutor was broken and entered and two pairs of his pants were etolen from it between the time he left it in the morning and the time of his return in the afternoon of the same day; and that the pants were found, the next morning, at the house of Polly Jenkins, the wife of the accused. The prosecutor testified, that when he left his house on the day of the burglary and before the crime was committed, Ed Jenkins was at work in a field, about 150 yards from the house, and knew that he was going to town. A woman testified, that she was working in the field that day,. while Ed Jenkins was there, and that he left the field, and she did not know where he was or what became of him. In the night of the same day, he was seen at the house of his wife, who had shortly before moved away from the place at which he was working, and was not living with him. The prosecutor testified, that Ed Jenkins came to his house the next morning, “about light,” from the house of Ed’s wife, where, Ed said, he went to carry her some clothes. The witness said to Ed. “Somebody has broke in my house and stole my clothes;” and Ed said, “They have?” That was all he said. The prosecutor saw a shoe-track, that morning, at the window where the house had been entered. He testified: “I saw shoe signs there, about a number-nine shoe. It was a big shce-track. The track was just like Ed Jenkins’ track. I know ii was the same shoe he had on that made the track where the house was broken open, because it didn’t have any heel on-it. The tracks were right at the window where he went in; there was a little step there at the window and he put his foot on the step, and the ground was kinder soft there and he made a plain track. I didn’t see any track there but his.” He loft Ed Jenkins lying on the porch, asleep, that morning, and went to the house of Jenkins’ wife, a distance of about six miles, and, after finding the pants there, was returning, to get a warrant, and when he was about a mile and a half from her house, he met Jenkins running towards the house. The prosecutor returned with an officer, and got the pants. He testified: “Ed Jenkins was at home at the time, I reckon. . . Ed Jenkins said he didn’t know nothing about it. . He had seen the pants in my house. About a week before my house was broken open, Ed Jenkins tried to buy one pair of those pants from Mr. Joe McLendon, but he didn’t buy them and I bought them.” It does not appear that any explanation as to the j)ants found at the house of the defendant’s wife was made by either of them. He made no statement to the jury and offered no testimony but that of a witness who testified: “I saw Ed Jenkins pull that shoe off his foot a few minutes ago. Defendant had the shoe on his foot when he came into'the court-reom, and it looks like it is about a number eleven.”

H. A. Wilkinson, for plaintiff in error.

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


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    699.
    SHERMAN v. THE STATE.
    1. Where a warrant was placed in the hands of lui officer of the law for execution, and subsequently the person against whom the warrant issued voluntarily appeared for commitment trial -before the magistrate who issued it, the officer having it in his possession also being present, and the magistrate thereupon continued the case and allowed the defendant to go at large on his personal recognizance, such voluntary appearance of the defendant was tantamount to an arrest, and such disposition of the case by the magistrate constituted satisfaction of the warrant, and it became functus officio, and any subsequent arrest thereunder was illegal.
    2. To authorize the rearrest of a defendant for the same offense, when he has been lawfully allowed his liberty on his personal bond for his appearance. on a certain named day to stand his preliminary trial, a forfeiture of his bond must be duly declared and another warrant for said offense be thereupon issued.
    3. The only evidence incriminating the defendant having been obtained by an unlawful search and seizure of his person while he was in custody under an illegal arrest, his conviction was unlawful, and the verdict must be set aside.

      Accusation of carrying concealed weapon, from city court of Americus — Judge Crisp. July 18, 1907.
    Submitted October 9,
    Decided October 22, 1907.

      Howell B. Simmons, for plaintiff in error,

      Zach. Childers, solicitor, contra.
   Hill, C. J.

Sherman was convicted of the offense of carrying •concealed weapons, and his motion for a new trial was overruled. 'The only evidence against the defendant was given by the bailiff who arrested him and by the deputy sheriff into whose custody he had been delivered by the arresting officer. These witnesses testified that while" the defendant was in the custody of the deputy sheriff, before he.was put in jail, the latter searched him and found a pistol concealed on his person. This testimony was objected to, on the ground that the search, and seizure of the defendant was unlawful, as he was under an illegal arrest, and that he was compelled by an officer of the law to furnish incriminating evidence against himself. In order to determine this assignment of ■error, it is necessary to consider the facts and circumstances of the defendant’s arrest. It appears, from the brief of the evidence in the record, that there were several warrants issued against the defendant by a justice of the peace of the county, for different ■offenses, and that these warrants had been placed in the hands of the bailiff for execution. Before any of the warrants had been executed by the bailiff, the defendant appeared before the justice who issued said warrants, for a preliminary trial; and the justice, without a trial, allowed the defendant to go at large on his own recognizance until the next term of the court. The bailiff who had the warrants in his possession did not make any formal execution of any of them, but was present and heard the order of the court permitting the defendant to go on his own recognizance. The defendant did not appear at the next term of the court, but the prosecutor, the constable, and the defendant’s counsel were present in ■court, and an agreement was made between them, which agreement was approved by the court, that the defendant should remain at large on his personal recognizance until the court heard from the defendant’s attorney. Before the court had heard from his attorney, without any order of the court revoking his previous order that the defendant should remain at large on his personal bond, and without any forfeiture of said bond, the bailiff arrested the defendant on one of the warrants issued by said justice, and from which the defendant had been released by the Order of the justice, discharging him on his own recognizance as above set forth. On the day the bailiff arrested the defendant, he delivered him into the custody of the deputy sheriff of the county; and this officer, before putting him in jail, and while having him in such custody, searched his person and found concealed thereon a pistol.

Under these facts (which are not disputed), was the testimony obtained by such search and seizure admissible against the defendant on his trial for carrying concealed weapons? We think, under the foregoing facts, the arrest of the defendant by the bailiff was illegal. When the defendant appeared before the justice who had issued the warrants against him for the purpose of having a commitment trial, and the bailiff who had the warrants in his possession was also present, this constituted an- arrest under the warrants. Courtoy v. Dozier, 20 Ga. 369. It amounted to a waiver of the defendant’s right to see the warrants, and was a voluntary surrender thereunder to the court. The court, having legal custody, therefore, under these warrants, was authorized to hold the commitment trial, or to postpone the trial, and, in the latter event, to require an appearance bond to be executed, with or without security. Allowing the defendant to go on his own bond until the next term of the court, and, when that day arrived, again postponing the commitment trial and allowing the defendant to remain at large on his own recognizance, rendered the warrant upon which such action was taken by the court functus officio, and the defendant could not thereafter be legally arrested for. the offense covered by the warrant, until his personal recognizance had been forfeited and a new warrant issued for said offense. An arrest on-a warrant, and a bond thereunder, satisfy the warrant, and there can' be no other arrest thereunder. If a defendant, after an arrest, has been allowed to give bond, such bond must be forfeited and another warrant issued, before he can be lawfully arrested for the offense covered by the first warrant. The arrest of the defendant, therefore, by the bailiff, under the warrant which, had been become functus by the previous action of the justice, was. an unwarranted exercise of authority, and such arrest was illegal.. His search and seizure by the deputy sheriff, while in his custody by virtue of the illegal arrest, was unlawful,' and the testimony obtained by such unlawful search and seizure following the illegal arrest was not admissible against him on his trial for carrying concealed weapons; and these facts clearly appearing from the evidence,-such testimony should have been excluded by the court. Hammock v. State, 1 Ga. App. 126 (58 S. E. 66); Hughes v. State, 2 Ga. App. 29 (58 S. E. 390); Sherman v. State, 2 Ga. App. 148 (58 S. E. 393). Judgment reversed.


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    619.
    COHEN v. THE STATE.
    1. Tlie particular facts which constitute exceptions to the bar of the statute of limitations need not be minutely alleged in the bill of indictment. It is sufficient if any of the exceptions stated in tlie Penal Code, §30, be stated in the language' therein employed. As to such exceptions the State is only required to show a prima facie case, as this is not matter essential to the actual guilt or innocence of the accused.
    2. Where an offense is alleged to have been unknown, the State need only show that it was unknown to the prosecutor, in order to make prima facie proof of that allegation. Being a matter .of defense, the defendant may rebut such proof by proving that the transaction alleged in the indictment as a violation of the law was known, and the general notoriety may be sufficient proof to establish the fact that it was not unknown.
    3. The verdict of the jury was amply supported by the evidence, and no reason appears why a new trial should be granted.
    Certiorari, from Ben Hill superior court — Judge Whipple. May 31, 1907. .
    Argued October 7,
    Decided October 14,
    Rehearing denied October 23, 1907.

      Haygood & Cutts, Hines & Jordan, for plaintiff in error.

      Walter F. George, solicitor-general, A. J. McDonald, E. W. Ryman, E. D. Graham, contra.
   Russell, J.

The defendant, Cohen, was convicted of the offense of cheating and swindling, in the city court of Fitzgerald, and carried his case, by certiorari, to the superior court, where the certiorari was overruled. In the bill of exceptions there is not only the general assignment that the court erred in overruling the certiorari, but it is insisted that the court erred in not granting a new trial on each and every one of {he more than fifty grounds set out in the original petition. Regardless of the burden imposed upon us by the bulky record in the case, we can not but admire the painstaking zeal and laborious diligence of counsel. But after a most careful examination of the record and' an investigation and consideration of every point in the case, we are not able to find a reason which would require a, reversal of the judgment of the judge of the superior court. To apply our own language to a well-known principle, he who claims error must show error; and hence, even were we in doubt, the plaintiff in error has not so shown it as to remove the presumption which arises in favor of the verdict; especially where, as in this case (the defendant being guilty under his own statement), the verdict is demanded by the evidence.

The demurrer to the accusation was properly overruled. The accusation was as follows: “Whereas Isidor Gelders did, on the 17th day of April in the jrear 1905, make before D. W. Paulk, J. P., an affidavit charging S. 11. Cohen with the offense hereinafter mentioned, now I, L. Kennedy, county solicitor, in the name of the State of Georgia, do charge and accuse — basing this accusation upon the affidavit aforesaid — the said S. M. Cohen with the offense of cheating and swindling; for that the said Cohen, on the 13th day of March, in the year 1902, in the comity aforesaid, with force and arms, with intent to cheat and defraud said Isidor Gelders, did falsely and fraudulently represent to said Gelders-that he, the said Cohen, was then and there the owner of a certain lot of land in the city of Fitzgerald, in said county, namely, city lot number 26, in square number 13, in block number 7, in said city of Fitzgerald, according to the plat of said city made by the American Tribune Soldiers Colony Company; and did then and there, by said false and fraudulent representations, induce said Isidor Gelders to purchase said city lot of land from the said Cohen, and to pay him, the said Cohen, for the same, the sum of seven hundred and seventy-five dollars in money;'the said representations being wholly false, and having been made falsely and fraudulently and with intent to deceive, and did deceive the said Isidor Gelders as aforesaid; and the said Gelders having relied upon the said false and fraudulent representations as being true, and, upon the faith of said false and fraudulent representations, purchased said city lot of land from said S. M. Cohen and paid him, the said S. M. Cohen, the sum of seven hundred and seventy-five dollars in money, and was thereby defrauded of said sum of $776 in money, of the value of $775; and the said offense'herein alleged against the said S. M. Cohen was unknown until the seventh day of February, A. D. 1905; contrary to the laws of said State, the peace, good order, and dignity thereof. Count 2: 1, the said L. Kennedy, county solicitor as aforesaid, in the name and behalf of the State of Georgia, do further charge and accuse— basing the accusation upon the affidavit aforesaid — the said S. M. Cohen with the offense of á misdemeanor, for that the said Cohen, on the 13th day of March, 1902, in the county and State aforesaid, did unlawfully cheat and defraud the said Isidor Gelders by then and there fraudulently and unlawfully, and with intent to cheat and defraud said Gelders, making unto said Gelders a second .deed of conveyance to certain land in the city of Fitzgerald, in said county, namely, city lot of land number 26, in square number 13, in block number 7, according to the original town-site plat of said city, thereby obtaining from said Gelders the sum of seven hundred and seventy-five dollars, the purchase-price of said land, the said S. M. Cohen having previously made a deed of conveyance of the said land to one Glory Cohen; but the said Gelders, without any knowledge of the first deed, and upon the faith of the second deed and the representations of the said S. M. Cohen, then and there made to the said Gelders, that he, the said S. M. Cohen, was the owner of said land, paid the said S. M. Cohen the said sum of seven hundred and seventy-five dollars in money, whereby the said Gelders was cheated and defrauded by the said S. M. Cohen of the sum of $775 in money of the value of $775; and the said offense herein alleged against the said S. M. Cohen was unknown until the seventh day of February, A. D. 1905. Contrary to the laws of said State, and the good order, peace, and dignity thereof. This 12th day of June, 1905. L. Kennedy, County Solicitor.”

The demurrer was based on four grounds. The first is general and depends upon the three which follow it; and the second ground, which objects to the joinder of the two counts, is not now insisted upon. The third and fourth grounds of the demurrer attack the accusation specially, the third insisting that the offense, as appears upon the face of each count, is barred by the statute of limitations, and the fourth objecting to the allegation that the offense was vnhnown, as being insufficiently full, and for failure “to show any fact or reason why the accusation is not barred/5 By the terms of the Penal Code, §30, indictments may be found and filed, in all misdemeanors within two years after the commission of the offense' and at no time thereafter. This is with the proviso, however that no limitation shall run so long as the offender or the offense is unknown. It was ruled in McLane v. State, 4 Ga. 335, and reaffirmed in Hansford v. State, 54 Ga. 58, that as a matter of substantive right to the defendant, where an exception was relied, upon to. defeat the bar of the statute of limitations, it must, be alleged and proved. As it is alleged in the accusation before* •us that the offense was' unknown until the 7th day of February, 1905, it would seem that the exception is fully set out, unless it be held that the State should be required to allege to whom the offense or the offender is unknown, or why the offense in this case* (or the offender in other probable cases) was unknown. Is it then, necessary to set out more in the indictment than that the offense-was unknown up to or until the date when it was discovered? We think not.

The’decision in the McLane case, supra, was made upon a ruling on a motion in arrest of judgment, where it appeared upon the-face of the indictment itself that the offense was barred; and the motion was sustained upon the express ground that the exception, which is relied upon to relieve the bar of the statute of limitations must be alleged so as to enable the defendant to prepare his defense. We hold that it is only necessary for the indictment tosíate which exception is relied upon, in the language used in the-Penal Code, §30. Whether the defendant had absconded from the State or concealed himself to prevent arrest, or whether the-offense was unknown or the offender was undiscove-rable until a. certain named day, would be amply sufficient. In the McLane case, supra (p. 340), the court says: “The public law of the State declares that the defendant shall not be indicted for the offense of arson, after the expiration of four- years from the commission of the offense, unless the offender shall abscond, or conceal himself, that he can not be arrested, or the offender was unknown. Here is an indictment, charging the defendant with the offense of arson, on the face of which it appears the offense was* committed more than four years before the indictment was filedl and found in the proper court. No reason stated why it was not found before. No allegation that the defendant was within either of the exceptions mentioned. How could a judgment of conviction bjr the court be supported on this indictment, under the law? The argument is, that the court is bound to presume it was proved on the trial the defendant was within one of the exceptions mentioned in the statute. Admit such' a presumption could be indulged in a criminal prosecution, within which one of the exceptions was the defendant, or was he within all of them? Besides, the defendant, when put upon his trial on an indictment barred by the statute, is entitled to know on what ground the State seeks io avoid its operation, as it may constitute a material part of his •defense. If the State relies upon the exception that the defendant absconded from the State, he may desire to show he did not abscond from'the State; if on the exception that he concealed himself [so] that he could not be arrested, he might be able to show that it was notorious, in the neighborhood, who committed the offense; the particular exception relied on should be alleged in the indictment so as to notify the defendant, that he may be prepared to meet all the allegations on the part of the State, at the trial.” In the opinion of the writer one reason why the same particularity is not required in the statement of the exception is that the exception which brings the defendant to trial is not a part of the State’s case. It does not involve the question of guilt or innocence. It is not a plea to the merits. It can exist with admitted guilt. That the offense is.barred by the statute of limitations is matter of defense. This is in accord with the reasoning in United States v. Cook, 84 U. S. 168 (21 L. ed. 538). In that case the Supreme .Court of the United States ruled as follows: “Where a statute defining an offense contains an exception, in the enacting clause of the statute, which is so incorporated with the language defining the offense, that the ingredients of the offense can not be accurately and clearly described if the exception is omitted, an indictment founded upon the statute must allege enough to show that the accused is not within the exception. But if the language of the section defining the offense is so entirely separable from the exception, that the ingredients constituting the offense may be accurately and clearly defined without any reference to the exception, the indictment may omit any such reference. The matter contained in the exception is matter of defense, and to he shown by the accused.”

Our ruling, that it is not necessary for the exception to be more particularly set out in the indictment than by using the words of the Penal Code, (§3), is not in conflict with any authority in this State; and to require more than this of the State would be to require the prosecution to prove facts peculiarly within the knowledge of the defendant, and ofttimes solely within his knowledge. It is true that in the McLane case, supra (p. 342), Judge Warner, who delivered the opinion of the court, intimates that it is only just that the State should prove the exception. But this portion of the decision is clearly obiter, because the only question before the court was as to the sufficiency of the motion in arrest of judgment. In the Hansford case, supra, the record shows that the facts creating the exception were fully set out as to Hansford’s confederates, but as to Hansford himself the fact that he was unknown as one of the offenders is nowhere alleged in the indictment; so that the case was decided on the authority of the McLane case, supra.

In Watkins v. State, 68 Ga. 832, in the second headnote, it was held that as the indictment alleged that the defendant concealed himself and avoided arrest, the indictment was sufficient to bring the ease within the exception. Upon ,an examination of the Watkins indictment in the original record, we find that the only particularization used in the indictment — the language employed —is, “did so conceal himself that he could not be again arrested for about five years until the 7th day of July, 1881.” In the Watkins case the trial court overruled the motion to quash the indictment on the ground that tile offense was barred by the statute of limitations; and the Supreme Court having thereupon held that the exception as to concealment was sufficiently alleged, we think the decision settles it that it is only necessary for the State to affirm the particular exception relied upon by it to relieve the bar of the statute of limitations. It is not necessary to allege with, particularity the facts, or set out the manner in which the exception arose. The statement of the special exception will enable the defendant to prepare to contradict it, and that is sufficient.

Where it is stated that the indictment was not brought within the period of time allowed by the Penal Code, §30, because the offense or the offender was unknown, the State makes a prima facie case and. shifts the burden of proof on the defendant when it is shown that the prosecutor or the party most interested did not know the offense (or the offender, as the ease may be). Upon such proof that the offense was unknown to the person aggrieved, the defendant may show that it was known to him, or he may show, by evidence of common notoriety, that the bar of the statute of limitations has attached. The same would be true as to his having absconded from the State or concealed himself. The statute of limitations being a matter of defense independent entirely of the merits of the main case, and of which the defendant may avail himself though he have no defense, excuse, or justification for the actual criminal act, — the State having, by stating the exception, enabled him to meet it, it is only required to prove this portion of the indictment pro forma, unless it is challenged in the proof, by the evidence of the defendant. And in those eases where the cffense is against society in general and there is no prosecutor, the return by the grand jury of a presentment containing the exception will presumptively establish that the offense or offender was unknown, until the statement is denied by evidence on the part of the defendant. There is in this ruling no conflict with the established rule that the State must prove every material fact essential to show the guilt of him who is accused of crime; for, as we have stated, this is no part of the crime, but merely an exception to a rule in his favor.

As to the exceptions contained in the petition for certiorari, it is useless to discuss any of them. No errors are apparent. But if any errors were committed, they were contained in the charge to the jury; and where the evidence requires the verdict, errors in the charge of the court will not necessitate a new trial. Hagar v. State, 71 Ga. 164, and citations. The requests to charge, so far as they were pertinent and legal, were covered by the general charge.

Judgment affirmed.