text:
    10674.
    TERRE HAUTE NATIONAL BANK v. HORNE-ANDREWS COMMISSION COMPANY.
    1. “The allegations of a pleading are to be construed most strongly against the pleader, when attacked by demurrer. The demurrer admits only the facts, and not the legal conclusions drawn therefrom by the pleader.” Anthony v. Dudley Sash éo. Co., 21 Ga. App. 412 (94 S. E. 034).
    2. The demurrer upon the ground that neither the first nor the second count of the petition sets forth a cause of action should have been Bttslai7jed. The bank’s purchase of the hill of lading with the vendor's draft for the purchase price of the goods sold to the plaintiff, and the plaintiff’s payment of the draft, would not render the bank liable to the plaintiff because of defects in the goods. Fourth National Bank V. Mayer, 89 Ga. 108 (2) (14 S. E. 891); Akers v. Jefferson County Savings Bank, 120 Ga. 1066 (48 S. E. 424) ; Leonhardt v. Small, 117 Tenn. 153 (96 S. W. 1051, 6 L. R .A. (N. S.) 887, 119 Am. St. R. 994).

      (a) The foregoing ruling renders it unnecessary to decide the question of jurisdiction, raised by the pleadings.
    Decided November 4, 1919.
    Complaint; from Baldwin superior court—Judge Park. May 22, 1919.

      D. 8. Sanford', Sibley & Sibley, for plaintiff in error.

      Allen & Pottle, contra.
   Luke, J.

Horne-Andrews Commission Company, a corporation of Baldwin, County, Georgia, brought suit by attachment against Terre Haute National Bank, a resident of the State of Indiana. The petition was in two counts. The first count of the petition alleged: (1) On or about February 18, 1918, plaintiff purchased from the Prater-Mottier Company of Terre Haute, Indiana, one car of yellow ear corn at $1.88% a bushel f. o. b. cars at Millegeville, Ga. (2) The total amount of the purchase-money was $1,447.05, for which sum said Prater-Mottier Company, on February 19, 1918, drew a draft on plaintiff, payable to the order of Terre Haute National Bank, at Terre Haute, Indiana, and attached said draft to a bill of lading covering said car of corn. (3) Upon the arrival of said draft and bill of lading at the First National Bank of Millegeville, Ga., for collection, the same was duly presented to plaintiff, and plaintiff, without having the privilege or opportunity of inspecting said corn, paid said draft to the First National Bank of Milledgeville, Ga. (4) Immediately thereafter the said car of corn was delivered to plaintiff at its warehouse in the city of Milledgeville, Ga., and upon inspection it was ascertained that said corn was damp and hot and rotting, and utterly unfit for use of man or beast, and utterly valueless, and plaintiff received no consideration whatever for its payment of the amount hereinbefore set out, to wit, $1,447.05. (5) Under plaintiff’s contract said corn was to be delivered to it in Milledgeville, Ga., and under the terms of said contract the deliverey thereof to the common carrier in Terre Haute, Indiana, was not a delivery to it. (6) The bill of lading was issued by the Louisville & Nashville Eailroad Company at Evansville, Indiana, to the Terre Haute National Bank of Terre Haute, Indiana, and therefore, at the time said corn was delivered to said carrier for shipment to Milledgeville, Georgia, said Terre Haute National Bank was the owner of said corn, and assumed, by virtue of its contract with said PraterMottier Company, the obligation of said company to deliver the corn in mercantile condition to plaintiff at Milledgeville, Ga. (7) The draft for the purchase-money of said corn, accompanying said bill of lading, was drawn, payable to said Terre Haute.National Bank, and was delivered to said bank not for collection only, but in consideration of the actual sale of the corn to said Terre Haute National Bank. (8) Pending the arrival of said corn in Milledgeville, the said Prater-Mottier Company went into the hands of a receiver. (9) Plaintiff therefore avers that there has been a total failure of consideration under the contract, and that it has received no consideration whatever for the $1,447.05 paid as hereinbefore, set out, and that for the reasons hereinbefore stated the said Terre Haute National Bank is liable to plaintiff in thq- full sum of $1,447.05, besides interest at 7% per annum from February 18, 1918. (10) On March 9, 1918, after the plaintiff ascertained that said corn was utterly valueless, it sued out an attachment, returnable to the superior court of Baldwin county, Georgia, making the affidavit and executing the bond required by the laws of said State, and caused said attachment to be levied by garnishment, summons of which was duly served upon the First National Bank of Milledgeville, Georgia. (11) Under said summons of garnishment the said First National Bank of Milledgeville, Ga., is holding in its possession the sum of $997.31, and it will answer that it holds said sum of money under said summons of garnishment at the July term, 1918, of the superior court of eaidj county.

The second count repeats the allegations of paragraphs 1, 3, 3, and 4 of the first count and alleges: (5) At the time of the delivery of said corn by said Prater-Mottier Company, at Evansville, Indiana, the point of shipment, it transferred to the Terre Haute National Bank of Terre Haute, Indiana, the bill of lading from said carrier for the corn shipped by it, and at the same time gave to said bank a draft drawn by it for the purchase-money thereof under the terms of its contract with plaintiff, to wit, $1,447.05, payable to the order of said bank. (6) Therefore the said Terre Haute National Bank became the purchaser of said corn before its shipment from Evansville, Indiana, and before its delivery to plaintiff. (7) Therefore said plaintiff was not liable to said Terre Haute National Bank on said bill of lading or on said draft in any sum whatever, because said corn, as hereinbefore set out, was utterly valueless. (8) Plaintiff is entitled to recover from said Terre Haute National Bank the full amount of said purchase-money, for the reason that it paid said draft, relying in good faith upon the shipment by said Terre Haute National Bank of mercantile corn, and, the bill of lading being accompanied with a sight draft, it had neither the privilege nor the opportunity of examining said corn before said draft was presented for payment and actually paid by it. Paragraphs 9, 10, and 11 of the second count repeat the allegations of the corresponding paragraphs of the first count. Both counts of the petition conclude with the same prayer, to wit, for judgment in personam against Terre Haute National Bank for the sum sued for, $1,447.05, and for judgment in rem against the funds of said bank in the hands of the garnishee.

The defendant demurred generally, upon two grounds: (1) that neither the first nor the second count of the petition sets out a cause of action; (3) that “the court is without jurisdiction of the ease of a national bank, of which it appears this defendant is, for that it appears from the petition that the defendant is a national bank, and suit by attachment cannot be entertained by the superior court before a final judgment has been rendered against it, as appears from the petition.” The court overruled the demurrer upon both grounds, and the defendant excepted.

The petition in neither of the counts pleads such a cause of action as renders the defendant Terre Haute National Bank liable upon warranty of the goods purchased by the plaintiff from PraterMottier Company. No such relation between plaintiff and defendant has arisen, simply upon the purchase of the draft and bill of lading by the defendant of the goods bought, as will entitle the-plaintiff to recover for a breach of duty imposed by law upon the seller of the goods.

Judgment reversed.

Broyles, O. J., and Bloodworth, J., concur.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    10680.
    Suggs v. The State.
   Luke, J.

1. One charged with the crime of rape by having sexual or carnal knowledge of a female child under the age of fourteen years may, if the evidence authorizes, be convicted of the offense of assault with intent to rape.

(а) The girl alleged to have been raped in this case being thirteen years of age, and the evidence only authorizing and the State only asking a conviction of assault with intent to rape, it was not error for the court to give in charge to the jury the act of the legislature (Ga. L. 1918, p, 259) which fixes the age at which female children may consent to acts of sexual intercourse.

(б) The crime of assault with intent to rape is committed when a man undertakes to have sexual intercourse with an unmarried female child under the age of fourteen years, by attempting to insert his private parts into her private parts, and where penetration of the vagina is not made only because force sufficient is not used, even though the child consent to the attempted sexual intercourse.

(c) Since the passage of the act of 1918, supra, the age of consent to sexual intercourse by a female child in this State is fourteen years, except where she has been previously married to the person having sexual intercourse with her.

(d) This case is controlled almost entirely by the construction of the statute referred to. The defendant contends that if the attempted act of sexual intercourse was without “force,” and not against the will of the female child, who was over ten years of age, with no penetration of the vagina he could not be convicted of the offense of assault with intent to rape; and that the statute was not applicable and was improperly given in charge to the jury. It is an open question in this State, but authority from other States, in the construction of apparently similar statutes, seems to be almost uniform in holding contrary to the position of the defendant. See Callison v. State, 37 Tex. Cr. R. 211 (39 S. W. 300); Loose v. State, 120 Wis. 115 (97 N. W. 526). And see 22 R. C. L. 1231, 1233, §§ 69, 71.

2. According to the testimony of the State’s witnesses, the defendant was on top of the girl, who was lying down on her back with her legs spread apart, and with her clothes up and his private member exposed to her private parts; and the jury credited these witnesses in preference to the defendant’s witnesses, whose testimony, if believed by the jury, would have authorized them to find that no such thing happened. The defendant was represented at his trial and in this court by able counsel, and a jury of his fellows did not believe his statement or the testimony of the witnesses he offered to overcome the evidence of the witnesses for the State. The trial judge has approved the verdict. Eor no reason assigned was it error to overrule the motion for a new trial.

Decided November 4, 1919.

Conviction of assault with intent to rape; from Berrien superior court—Judge Thomas. May 25, 1919.

J. P. Knight, for plaintiff in error.

C. E. Hay, solicitor-general, contra.

Judgment affirmed.

Broyles, G. J., and Blood-worth, J., concur.


author: Bloodworth, J.

text:
    10707.
    BRITT v. THE STATE.
    1. In the case of one indicted for fornication the fact that the sole witness before the grand jury was the other party to the illicit intercourse is not a sufficient ground for a plea in abatement.
    2. The questions of the trial judge to the witness for the prosecution were not improper.
    3. The evidence authorized a conviction of fornication.
    Decided November 4, 1919.
    Indictment for fornication; from Appling superior court—Judge Highsmith. May 10, 1919.
    While the witness for the prosecution was testifying the presiding judge asked her a number of questions as to when and where she had sexual intercourse with the accused, etc., and at the conclusion of her testimony counsel for the accused moved that the court declare a mistrial, on the grounds, that “the examination by the court of the prosecuting witness was extended and upon the vital points of the case, and was a gross injustice to the defendant, and was calculated to confuse and mislead the jury with respect to the attitude of the court on the merits of the case, and deprived the defendant of a fair and impartial trial; that it had a tendency to lead the jury to believe the judge was giving special attention to the testimony of the witness and taking undue interest in the case, and had the effect of discrediting his defense before the jury.” The court overruled the motion, and this is complained of in the motion for a new trial; and it is further contended that the judge in his questions to the witness assumed that sexual intercourse had occurred between the witness and the accused, and thus expressed or intimated an opinion “in violation of the law.” In a note to these grounds of the motion for a new trial the judge said: “The witness was a young, excited, nervous country girl, apparently soon to become a mother. The examination of counsel for movant was such as to indicate that the case was rape, instead of fornication as charged. At the' conclusion of the cross-examination it appeared, from the questions asked and answers given, that movant was guilty of rape, if anything. The questions asked by the court were with the intention and for the purpose of ascertaining whether the alleged acts of intercourse, if they occurred in fact, made a case of rape, or only of fornication.”

      W. TF. Bennett, for plaintiff in error.

      Alvin V. Sellers, solicitor-general, contra.
   Bloodworth, J.

A plea in abatement to the indictment, which charged fornication, was properly stricken when the ground thereof was that the only witness before the grand jury was the other party to the illicit intercourse. While the other party was an accomplice (Solomon v. State, 113 Ga. 192, 38 S. E. 332), yet fornication is a misdemeanor, and in such cases the law allows a conviction on the evidence of a single witness, even though that witness be an accomplice. Penal Code of 1910, § 1017.

■ The 4th ground of the amendment to the motion for new trial will not be considered, as the trial judge refused to approve it. The remaining special grounds of the motion are without merit, especially when considered in the light of the qualifying note of the presiding judge. “The court may properly propound questions to a witness on the stand, with a view to elicit the truth of the case; and if in such examination the court does not express or intimate an opinion as to the credibility of the witness, or as to what has or has not been proved, the mere fact that competent testimony of the witness so elicited may be detrimental to the interest of a party will not be cause for granting him a new trial. The questions which the court asked the witness, as set out in the motion for a new trial in the present case, were not calculated to impress the jury with the idea that the judge' believed the party who gained the case in the court below should prevail.” Johnson v. Leffler Co., 122 Ga. 670 (7) (50 S. E. 488).

Counsel for plaintiff in error insists that the verdict is without evidence to support it, because the evidence shows that the defendant was guilty of rape instead of fornication. He made a timely and appropriate request in writing that this issue be submitted to the jury, and the presiding judge certifies that this was done. On questions of fact the "jurors are the final arbiters. This court is a court for the correction of errors of law alone. Where the jury passes upon issues of fact, this court cannot say as a matter of law that the verdict is contrary to law, if there is any evidence at all to support the verdict. The jury have said that this defendant is guilty of fornication; there is evidence to support such a finding, the verdict has the approval of the presiding judge, and the judgment is

Affirmed.

Broyles, O. J., and Lulce, J., concur.


author: Broyles, O. J.

text:
    10708.
    Walton v. The State.
    Decided November 4, 1919.
    Conviction of assault with intent to rape; from Stewart superior court—Judge Littlejohn. May 30, 1919.

      N. B. Butt, G. Y. Ilarrell, for plaintiff in error.

      Jule Felton, solicitor-general, contra.
   Broyles, O. J.

1. No opinion as to what had been proved in the case was expressed or intimated in the following excerpt from the charge of the court: “Assault with intent to commit a rape is an assault made with the intent to have carnal knowledge of a female, forcibly and against her will. If a person should make an assault upon a woman with the intent to have carnal knowledge of her, forcibly and against her will, if he entered upon that assault and should seize the woman with that intention and.that was his intention, then if he desisted by reason of fear or from an inability to commit the offense, why then that would not acquit him of the offense of assault with intent to commit a rape.”

2. The special grounds of the motion for a new trial other than the ground dealt with above, not being referred to in the brief of counsel for the plaintiff in error, are treated as abandoned.

3. The verdict was authorized by the evidence, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    10710.
    DAVIS v. THE STATE.
    A conviction of robbery was unauthorized by the evidence.
    Decided November 4, 1919.
    Indictment for robbery; from Chatham superior court—Judge Meldrim. June 9, 1919
    The indictment charged that the robbery was committed by making an assault on Louise Sunday and taking her pocket-book from her by force and intimidation and without her consent. She testified that she went to a certain store and had on a large coat with a long sleeve, and in the right hand pocket of the coat had her purse with her hand over it, holding it; that she was looking around at things in the store, and had an article in her hand, and felt something in her sleeve, and “thought it was the coat sleeve that was so long,” and raised her hand up out of the pocket, where the purse was, to fix the sleeve, and as she put her hand back in her coat-pocket her pocket-book was gone; that at the same moment she turned around and saw two colored women standing behind her, and as she turned they told her that two boys had stolen her pocketbook; she saw the two boys running and “took after them;” she discovered that the pocket-book was gone when the colored women told her about it. It was testified that the defendant, when arrested, said that a certain other man snatched the pocket-book and gave it to him.

      Shelby MyricJc, for plaintiff in error.

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

The defendant was convicted of the offense of robbery. The evidence failed to show that any force or intimidation was used, or that there was a sudden snatching, taking, or carrying away, such as as is defined to be robbery. Penal Code (1910), § 148; Williams v. State, 9 Ga. App. 170 (70 S. E. 890). His conviction of the offense of robbery was unauthorized by the evidence. A conviction of larceny from the person would have been authorized if he had been indicted for that offense. Eor the reason that the evidence did not authorize his conviction, his motion for a new trial, upon the general grounds, must be granted.

Judgment reversed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    10718.
    PERKINS v. THE STATE.
    A conviction of the offense of having possession of intoxicating liquor was authorized by the evidence.
    Decided November 4, 1919.
    Accusation of misdemeanor; from city court of Mullen—Judge Dekle. June 2, 1919.
    A deputy sheriff testified, that he broke the lock of the defendant’s smoke-house and discovered there a keg containing twenty or thirty gallons of'corn beer, and found also a bottle which he smelled and which “had had moonshine liquor in it;” there was no whisky in the bottle; “there may have been a drop or two.” He further testified: The beer “was intoxicating. It was ready for the still; it was working and beading over the top, strong as I ever saw. . . I-did not taste this beer. I say this beer was intoxicating because I have seen whisky run and I know when beer is right to make. I have seen it made and I know corn beer will make you drunk. I know that this corn beer would make you drunk. When I poured this beer out corn, syrup, and water were in it. It was pure corn, whole grain. I never noticed anything else in it. I don’t think there was any meal or mixture in it. Some make it with corn and some with meal. I saw several bottles in there and also some jugs. We did not examine all of them.” There was no other witness. The defendant, in his statement at the trial, said he would not deny that the witness “found a barrel with some syrup and corn in it; it was there in the barrel ■. . fixed for feeding” his hogs; he had been feeding the hogs on it for three months. “They said it would make you drunk;” he did not know about that.

      A. S. Anderson, E. G. Weathers, for plaintiff in error.

      William Woodrum, solicitor, contra.
   Bloodworth, J.

While the evidence in this case is rather weak, the court cannot say as a matter of law that the verdict is without evidence to support it. “The verdict having been approved by the trial judge, under the repeated and uniform rulings of this court and of the Supreme Court, a reviewing court is powerless to interfere. When the verdict is apparently decidedly against the weight of evidence, the trial judge has a wide discretion as to granting or refusing a new trial; but, whenever there is any evidence, however sligbt> to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Bradham v. State, 21 Ga. App. 510 (94 S. E. 618), and citations.

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.


author: Bi.oodworth, J.

text:
    10723.
    Sanders v. The State.
    Decided November 4, 1919.
    Accusation of carrying concealed weapon; from city court of Albany—Judge Clayton Jones. June 9, 1919.
    From the evidence it appears that when an attempt was made to pull the defendant out of his automobile he put his hand behind him; he was pulled out of the ear and a pistol was discovered lying on the seat where he had been sitting. When found it was not covered or concealed.

      Benton Odum, Peacock & Gardner, for plaintiff in error,
    cited: 8 Ruling Case Law, 393, sec. 313; 38 Tex. 170; 33 Tex. App. 492; 29 S. W. 386; 37 S. W. 680; 76 Ala. 88; 92 Ala. 58.

      8. B. Lippitt, solicitor pro tern., contra,
    cited: 5 Am. & Eng. Enc. L. 733; 105 Ga. 633; 126 Ga. 89; 25 S. W. 285; 50 Tex. Crim. App. 619; 119 S. W. 98; 104 S. W. 941; 5 So. 576; 16 S. C. 187, 23 L. R. A. (N. S.), note.
   Bi.oodworth, J.

The evidence did not authorize the verdict, and the judge erred in overruling the motion for new trial.

Judgment reversed.

Broyles, O. J., and Luke, J., concur.


text:
    10724.
    Standifer v. The State.
   Broyles, O. J.

1. Every special ground of a motion for a new trial must be complete and understandable within itself. It is impossible for this court, from a reading of the first special ground of the motion for a new trial, to say whether the court erred in admitting the testimony therein complained of. A reference to the brief of the evidence would be necessary to decide that question. This ground, therefore, can not be considered.

2. Upon the trial of one charged with murder, it is not permissible for the State to introduce in evidence the sworn testimony of the accused given as a witness at the coroner’s inquest, where the accused, although not then under arrest, was sworn not on his own motion but on that of the coroner, and where, although questioned by the coroner in regard to the homicide and his connection with it, he was not informed of his right to refuse to answer any question which might tend to incriminate him. Under such circumstances the testimony elicited by the coroner could not be considered as having been voluntarily given. See, in this connection, Adams v. State, 129 Ga. 248 (58 S. E. 822, 17 L. R. A. (N. S.) 468, 12 Ann. Cas. 158); Tuttle v. People, 33 Colo. 243 79 Pac. 1035, 70 L. R. A. 33, 3 Ann. Cas. 513).

Decided November 4, 1919.

Conviction of manslaughter; from Jasper superior court—Judge Park. June 7, 1919.

W. 8. Florence, Greene F. Johnson, for plaintiff in error.

Doyle Gompbell, solicitor-general, contra.

3. Under the foregoing ruling the court erred in admitting in evidence, over the timely and appropriate objections of the defendant, the sworn testimony of the accused given at the coroner’s inquest held upon the body of the deceased.

Judgment reversed.

Luhe and Bloodworth, JJ., concur.


text:
    10729.
    Goolsby v. The State.
    Decided November 4, 1919.
    Indictment for robbery; from Oglethorpe superior court—Judge W. L. Hodges. May 27, 1919.
    Application for certiorari was denied by the Supreme Court.
    1. The indictment charged that on August 20, 1918, Mose Goolsby and another violently, by force and intimidation and by drawing a pistol on Jerry Wymbs, took $5.17, his property, from his person without his consent, and carried it away with intent to steal the same. According to the testimony for the State, the defendant Goolsby, about the time alleged, met Wymbs (or ‘Weims’) in a road at night, pointed a pistol in his face, and told him to turn his pockets if he had any money; Wymbs pulled out his pocket-book, and Goolsby grabbed it and went off with it, taking $5.17, his money. Wymbs testified: “He [Goolsby] had his pistol in his hand. He took my money away from me by drawing his pistol on me and by intimidating me. I was afraid. He jerked the pocket-book out of my hand, and he said, ‘Get up the road or I will kill you/ . . It was taken away without my consent.” Goolsby, in his statement and by witnesses, sought to establish an alibi. The jury rendered a verdict of guilty.
   Luke, J.

1. The evidence in this case authorized the conviction of the offense of robbery.

2. The charge of the court is not subject to the criticism that it failed to instruct the jury upon the question of intent to steal being a necessary ingredient of the crime of robbery. The jury was instructed that robbery was charged to have been committed by the defendant, and the elements of robbery were fully charged.

3. The court fully charged upon the subject of alibi as- a defense. The verdict being authorized, and there being no error assigned which entitles the defendant to a new trial, it was proper for the court to overrule the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.

2. As to what is necessary to constitute robbery, the trial judge, after stating to the jury the allegations of the indictment, instructed them as follows: “Robbery is defined by our penal statute as follows: Robbery is the wrongful, fraudulent, and violent taking of money, goods, or chattels from the person of another by force or intimidation, without the consent of the owner, or the sudden snatching, taking, or carrying away any money, goods, chattels, or anything from the owner or person in possession or control thereof without the consent of the owner or person in possession or control thereof.” In the motion for a new trial it is contended that the court erred “in failing to charge the jury, either specifically or generally, that intent to steal is a substantive and essential element of the crime of robbery by force or intimidation.”

3. As to alibi the court charged the jury as follows: “The defendant . . pleads what is known in law as the plea of alibi,— that is to say that he was not at the place where the crime is alleged to have been committed and at the time it is alleged to have been committed. Alibi as a defense involves the impossibility of the prisoner’s presence at the scene of the offense at the time of its commission; and the range of the evidence in respect to time and place must be such as reasonably to exclude the possibility of presence. . . The evidence of alibi must satisfy your mind that the accused was at a place where it was impossible for him to have committed the alleged crime,” etc. In the motion for a new trial exception was taken to the concluding sentence of the instructions here quoted, and it was contended that a greater burden than the law imposes was thereby placed upon the accused, “the language of the statute being, ‘the range of the evidence in respect to time and place must be such as reasonably to exclude the possibility of presence/ ”

4. In the motion for a new trial it was contended that in charging the jury that an impeached witness “may be sustained by proof of general good character,” the court erred because no evidence was offered for that purpose; that the court erred in charging that the date of the crime was immaterial if within tire statute of limitations, and in failing to tell the jury what the law was as to the statute of limitations in this case; that in the charge quoted above as to 'what constitutes robbery, the court erred in failing to limit the jury to the offense of robbery by force and intimidation; and that the court erred in failing to charge the jury that before they would be authorized to convict, they should be satisfied beyond a reasonable doubt as to the identity of the defendant.

Joel Cloud, Hamilton McWhorter Jr., for plaintiff in error.

A. S. Shelton, solicitor-general, Paul Brown, contra.


text:
    10730.
    INGRAM v. THE STATE.
    Some of the grounds of the motion for a new trial are not in proper form for consideration. The evidence authorized the verdict.
    Decided November 4, 1919.
    Accusation of sale of intoxicating liquor; from city court of Carrollton—Judge Beall. June 23, 1919.

      Boylcin & Boylcin, for plaintiff in error.

      Willis Smith, solicitor, contra.
   Bloodworth, J.

1. (a) “A ground of a motion for a new trial which complains of the admission of specified testimony must state the name of the witness whose testimony is complained of.” Adams v. State, 22 Ga. App. 252 (95 S. E. 877), and cases cited.

(5) “Under repeated rulings of this court and of the Supreme Court, a ground of a motion for a new trial must be complete in itself. When it is so incomplete as to require this court to refer to the pleadings or to the brief of evidence, it will not be considered.” Cæsar v. State, 22 Ga. App. 796 (97 S. E. 255), and cases cited.

(c) “It is only where a case is wholly dependent upon the law of circumstantial evidence that the trial judge is required to give the law of circumstantial evidence.” Williamson v. State, 22 Ga. App. 787 (97 S. E. 195), and cases cited.

2. The foregoing rulings dispose of the Special grounds of the motion for a new trial. The evidence is sufficient to support the verdict, which has the approval of the trial judge, and, no error of law appearing, the judgment is

Affirmed.

Broyles, G. J., and Luke,- J., concur.


author: Broyles, C. J.

text:
    10733.
    Huckeba v. The State.
   Broyles, C. J.

1. None of the excerpts from the charge of the court excepted to, when considered in the light of the charge as a whole and the facts of the case, contains reversible error.

2. The court did not err in repelling the testimony as complained of in the 5th special ground of the motion for a new trial.

3. Under the facts of the case the court did not err in denying the defendant’s motion to declare a mistrial.

4. The conviction of the defendant did not depend wholly on circumstantial evidence. The court, therefore did not err in failing to instruct the jury upon the law of circumstantial evidence, there being no timely and appropriate written request therefor.

5. The admission of the testimony as to the defendant’s relations, outside of Polk county, with the female with whom he was charged with having sexual intercourse, was not error, since the court specifically charged the jury as follows: “The court has permitted certain evidence to come before you regarding transactions that did not occur within the county of Polk. The court has no opinion and expresses none as to what has been proven in this regard, or as to any facts proven in the case. This evidence was admitted for the purpose of showing, if anything was shown (and you are the judges of what that evidence was or what was shown) by this evidence of the relations between the parties, and in aiding you, in so far as you think it may aid you, in determining the guilt or innocence of the defendant. I charge you that this alone would not warrant a conviction. In other words; you could not convict the defendant for anything that occurred outside the county of Polk, if anything did occur, or if any offense was committed outside of this county, this would not warrant the conviction of the defendant, but, as before stated, this is to aid you in determining the guilt or innocence of the defendant, and to aid you in determining whether the charge in the bill of indictment is true, but it is a circumstance in the case and you have the right to consider it to this extent only. You must find, in order to find the defendant guilty, that the offense was committed in the county of Polk.” Lipham v. State, 125 Ga. 52 (3), 55 (53 S. E. 817, 114 Am. St. R. 181, 5 Ann, Cas. 66); Nobles v. State, 127 Ga. 212 (3), 216 (56 S. E. 125).

Decided November 4, 1919.

Indictment for adultery and fornication; from city court of Polk county—Judge Tison. June 12, 1919.

The motion that the court declare a mistrial was based on the statement of the solicitor-general, in his argument to the jury, that he would go to his grave “believing that this girl swore the truth” (referring to the principal witness for the prosecution). In overruling the motion the judge stated, in the presence of the jury, that he would instruct them to disregard any statement of counsel as to their personal opinionmr belief as to the evidence; and he so instructed them in his charge.

Bunn & Trawich, W. W. Munday, for plaintiff in error.

J. A. Wright, solicitor, E. 8. Ault, contra.

fó. The conviction was amply warranted by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Luhe cmd Bloodworth, JJ., concur.


text:
    10734.
    Rafe v. The State.
    Decided November 4, 1919.
    Conviction of manslaughter; from Morgan superior court—Judge Park. May 24, 1919.

      E. W. Butler, M. C. Feto, for plaintiff in error.

      Doyle Campbell, solicitor-general, contra.
   Luke, J.

1. An indictment for murder is sufficient, and not subject to demurrer upon the ground that it “wholly omits to disclose the death of the alleged injured person, in that such death was caused or brought about by the alleged ^ct of the defendant,” here the indictment charges that the defendant did “with force and arms wrongfully, unlawfully and with malice aforethought, kill and murder one Jeff Peoples, a human being in the peace of the State then and there being, by then and there striking the said Jeff Peoples with a certain heavy brick and rock and thereby inflicting upon the said Jeff Peoples a mortal wound,” etc.

2. The trial judge did not abuse the discretion with which he is by law charged, in allowing State to reopen the ease and introduce other testimony after the defendant closed his evidence.

3. It was not error, under the evidence in this ease, for the court to charge upon the law of voluntary manslaughter. The evidence authorized the verdict, which has the approval of the court, and for no error assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    10740.
    O’Neal v. The State.
    Decided November 4, 1919.
    Certiorari; from Fulton superior court—Judge Pendleton. May 29, 1919.

      Lowndes Calhoun, for plaintiff in error. John A. Boykin, solicitor-general, Lowry Arnold, B. A. Stephens, contra.
   Bloodworth, J.

1. The entire brief of the attorney for plaintiff in ei’ror is in one sentence as follows: “He insists on all the grounds of error set forth in his petition for certiorari, and says that the court erred on each and every ground thereof.” This is not an argument. It has been repeatedly held by this court and the Supreme Court of the State that assignments of error not argued in the brief of counsel for plaintiff in error will be treated as abandoned. Cheek v. State, 22 Ga. App. 788 (5) (97 S. E. 203); Sulter v. State, 22 Ga. App. 105 (95 S. E. 532); Harbin v. Flannigan, 22 Ga. App. 30 (95 S. E. 320); Pelham Phosphate Co. v. Daniels, 21 Ga. App. 549 (94 S. E. 846), and cases cited.

2. There is evidence to support the verdict, and the judge of the superior court did not err in overruling the petition for certiorari.

Judgment affirmed.

Broyles, O. J., and Luhe, J., concur.


text:
    10741.
    Williams v. The State.
    Decided November 4, 1919.
   Broyles, C. J.

1. A special ground of a motion for a new trial must be complete within itself, and will not be considered by the reviewing court when it is so incomplete as to require reference to the brief of the evidence, or to some other portion of the record, to make it understandable. In the instant ease the first special ground of the motion for a new trial complains that a certain named witness was not allowed to testify, in answer to questions by the defendant, to certain statements alleged to have been made to him (and which are set forth in the ground) by a codefendant, at the time of the arrest of the defendant and his codefendant. The ground does not show, however, whether the witness was upon direct or cross-examination, or that the court was ■ apprised of the expected answers of the witness, or that any part of this conversation had already gone to the jury. This ground of the motion is therefore too defective to be considered by this court.

2. Under all the facts of the ease, the court did not err in failing to instruct the jury that the case was based entirely upon circumstantial evidence.

3. The charge upon the subject of recent possession of stolen property was not erroneous.

4. The verdict was authorized by the evidence.

Judgment affirmed.

Luhe and Bloodworth, JJ., concur.

Indictment for car breaking; from Fulton superior court—Judge Humphries. June 24, 1919.

Tillou Von Nunes, for plaintiff in error.

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


text:
    10744.
    Clayton v. The State.
    Decided November 4, 1919.
    Indictment for burglary; from Bibb superior court—Judge Mathews. July 2, 1919.

      Hubert F. Bawls, for plaintiff in error.

      John P. Boss, solicitor-general, contra.
   Broyles, C. J.

1. There is no material error in either of the excerpts from the charge complained of, when considered in the light of the facts of the case.

2. The evidence amply authorized the verdict, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Luhe a/nd Bloodworth, JJ., concur.


text:
    10745.
    WHITE v. THE STATE.
    Simple larceny, not larceny after trust,, was shown by the evidence in this case.
    Decided November 4, 1919.
    Indictment for larceny; from Bibb superior court—Judge Mathews. June 25, 1919.

      Thomas Arnold Jacobs Jr., Olin J. Wimberly, C. A. Cunningham, for plaintiff in error.

      John P. Boss, solicitor-general, contra.
   Luke, J.

The defendant was convicted of the offense of simple larceny. The proof showed that he was a farm hand on a farm; that as such employee he was directed to haul some wood to the house, and, after hauling the wood, to put up the team and do other work; that after hauling the wood he took the team from Monroe county and drove it 42 or more miles away to Macon, and tried to sell the mules, and finally did sell them. He contends that he was not guilty of simple larceny, but if guilty of crime he was guilty of larceny after trust. We do not think so. No such bailment was shown as is necessary to require his conviction of larceny after trust rather than simple larceny. This ruling is not in conflict with Mobley v. State, 114 Ga. 544. The conviction was demanded. It was not error to overrule the motion for a new trial, which was based solely upon the general grounds.

Judgment affirmed.

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


author: Bloodworth, T.

text:
    10751.
    Childs v. The State.
    Decided November 4, 1919.
    I-ndictment for murder—conviction of manslaughter; from Putnam superior court—Judge Park. June 7, 1919..

      Davidson & Callaway, for plaintiff in error.

      Doyle Campbell, solicitor-general, contra.
   Bloodworth, T.

The court did not err in charging the jury on voluntary manslaughter. There is ample evidence to support the verdict; and the motion for new trial was properly overruled.

Judgment affirmed.

Broyles, G. J., and Lulce, J., concur.


text:
    10762.
    Macon v. The State.
    Decided November 4, 1919.
    Conviction of manslaughter; from Jones superior court—Judge Park. June 7, 1919.

      IS. T. Dumas, J. A. Henderson, John B. Cooper, W. 0. Cooper Jr., for plaintiff in error.

      Doyle Campbell, solicitor-general, contra.
   Broyles, O. J.

1. The ground of the motion for a new trial based upon the refusal of the judge to comply with the written request to charge can not be considered, since it does not appear that the request was tendered to the court before the jury retired to consider the case. Seaboard Air-Line Ry. v. Barrow, 18 Ga. App. 261 (4) (89 S. E. 383).

2. Under the facts of the case the court did not err in instructing the jury upon the law of manslaughter.

3. None of the excerpts from the charge of the court excepted to, when considered with the entire charge and the facts of the case, contains material error.

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

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


author: Bkoyi.es, C. J.

text:
    10765.
    Rumph v. The State.
    Decided November 4, 1919.
    Conviction of manslaughter; from Macon superior court—Judge Littlejohn. Juno 21, 1919.

      John B.'Guernj, for plaintiff in error.

      Jule Felton, solicitor-general, contra.
   Bkoyi.es, C. J.

1. While “the law is well settled that when a judge undertakes to charge the law on any subject, he must charge all of it upon that subject that is material aM applicable to the case” (Harper v. State, 17 Ga. App 561 (2), 87 S. E. 808), in this case the charge of the court upon the subject of impeachment of witnesses sufficiently covered all of that subject which was material and applicable.

(a) It was sought to impeach several of the State’s witnesses by proof that on the commitment trial of the defendant their testimony was materially different from what it was on this trial, but none of them admitted that his testimony on the former trial was false; on the contrary they all denied that their testimony on the two trials was different. Under these facts it was not error for the court, in the absence of a timely and appropriate written request, to fail to charge the jury that if a witness wilfully and knowingly swore falsely as to a material matter, his testimony ought to be disregarded entirely unless corroborated by circumstances or other unimpeached evidence. Robison v. State, 114 Ga. 446, 447 (40 S. E. 253). See also Millen & Southwestern R. Co. v. Allen, 130 Ga. 656 (5), 660 (61 S. E. 541).

(b) The excerpt from the charge of the court complained of was not error for any reason assigned.

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

■Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    10775.
    JENKINS v. THE STATE.
    A conviction of the offense of manufacturing intoxicating liquors was authorized by the evidence.
    Decided November 4, 1919.
    Indictment for manufacture of liquor; from Lee superior court— Judge Littlejohn. June 21, 1919.

      W. G. Martin, for plaintiff in error.

      Jule Felton; solicitor-general, contra.
   Luke, J.

1. The defendant was indicted for distilling, manufacturing and making alcoholic, intoxicating, and spirituous liquors, and malted liquor and mixed liquor and beverages, part of same being alcoholic. The jury were authorized, and did find, that the defendant had in his house an outfit that had been when assembled, and could be, used to distil whisky, and had in his house beer that is used for distillation; that such beer was intoxicating; and that such concoction at the time it was so found was fermenting in a barrel, over the head of which a quilt was placed; that the still outfit had been in recent use, and 'that “low wine,” or the first run of whisky, had been through the still and pipes. Such evidence, under appropriate charge of the court, was sufficient to authorize a verdict of guilty against the defendant. The trial judge having approved the verdict, and no error of law being assigned which requires a new trial, the judgment is

Affirmed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    FINCH v. THE STATE.
    1. The first special ground of the motion for a new trial is expressly abandoned in the brief of counsel for the plaintiff in error.
    2. In the absence of a timely and appropriate written request, the court did not err in failing to charge the jury specifically that the burden was on the State to establish the guilt of the defendant beyond a reasonable doubt. The charge of the court on the subject of a reasonable doubt sufficiently informed the jury that that burden was on the State. Thomas v. State, 129 Ga. 419 (4), (59 S. E. 246).
    3. The charge on the subject of alibi contained no material error.
    4. In a criminal case it is error for the judge, even in the absence of a timely and appropriate written request, to fail to charge the jury substantially to the effect that the defendant enters upon his trial with the presumption of innocence in his favor, and that this presumption of innocence remains with him throughout the trial until his guilt is established by proof. Gardner v. State, 17 Ga. App. 410 (87 S. E. 150), and cases cited. In 'the instant case the court erred in failing to charge the jury substantially to the above effect, and, under all the facts of the case, this error requires a new trial.
    Decided November 4, 1919.
    Indictment for sale of intoxicating liquor; from Clarke superior court—Judge Cobb. June 20, 1919.

      Lamar 0. Rucker, Austin Bell, for plaintiff in error.

      W. 0. Dean, solicitor-general, contra.
   Broyles, C. J.

The 4th headnote alone needs elaboration. The holding there is not in conflict with the ruling in Roberts v. State, 92 Ga. 451 (17 S. E. 262), which is as follows: “Alleged errors in ‘failing to charge as to the legal presumption of innocence/ and in ‘failing to explain the legal meaning of reasonable doubt/ there being no proper requests to charge on these subjects; in ‘making the charge in argumentative form/ without stating how; in withdrawing or admitting evidence, without plainly and distinctly setting forth Avhat the evidence was; in ‘expressing an opinion as to the effect of certain documentary evidence’ without stating what the expression Avas, and other like assignments of error, are too vague, indefinite and uncertain to be considered, and afford no cause for a new trial.” In our opinion the Supreme Court there, notwithstanding the clauses, “there being no proper requests to charge on these subjects,” and “and afford no cause for a new trial,” did not intend to pass upon the merits of the assignments of error, but merely intended to hold that they were so fatally defectiA^e in form (in that they were “too vague, indefinite and uncertain to be considered”) that the assignments of error Avere not revieAvable by the Supreme Court, and therefore afforded no ground for a new trial. We are strengthened in this view by an examination of the original record in the Roberts case, of file in the office of the clerk of the Supreme Court, which shows that the particular assignment of error now being considered was merely as íoUoavs : “Because the court erred in failing to charge the jury as to the legal presumption of innocence.” In the instant case the assignment of error was: “Because the court erred in failing to charge the jury that the defendant entered upon the trial with the presumption of innocence in her favor, and that that presumption remained with her throughout the trial until her guilt was established by proof.” Nor is the present ruling in conflict with the decision of this court in Mauldin v. State, 23 Ga. App. 537 (99 S. E. 50). In that case the same omission in the charge of the court as is now •under review was excepted to, and it was there held, in substance, that the failure of the court to specifically so charge was not error, since the principle of the law was substantially and sufficiently given by the explicit and comprehensive charge on the subject of reasonable doubt, together with the further charge that “Clarence Mauldin [the defendant] pleads not guilty, and that puts upon the State the burden of proving his guilt, and satisfying your judgment beyond a reasonable doubt that he is guilty of that charge, in order to overcome the presumption that he is innocent, before you could find a verdict of guilty.” (Italics ours.)

The charge in the instant case did not contain any specific reference whatever to the subject of the presumption of innocence; and the instructions given upon the subject of reasonable doubt were not alone sufficient to meet the requirements of the law. “Even Homer sometimes nods/’ and we think in this instance the learned and upright trial judge committed reversible error, and that another trial of the ease is required. We have reached this conclusion the less reluctantly because of the fact that the great preponderance of the evidence was in favor of the defendant, and the evidence which authorized her conviction was slight and unsatisfactory.

Judgment reversed.

Lulce and Bloodworth, JJ., concur.


author: Bloodwoeth, J.

text:
    10776.
    Finch v. The State.
    Decided November 4, 1919.
    Description of this case and the counsel therein are the same as in the case cited in the decision.
   Bloodwoeth, J.

This ease is a companion one to that of Fineh v. State, ante, 339, and is controlled by the opinion in that case.

Judgment reversed.

Broyles, O. J., and Luke, J., concur.


text:
    10778.
    Barksdale v. The State.
    Decided November 4, 1919.
    Indictment for possession of intoxicating liquor; from Lincoln superior court—Judge Walker. June 23, 1919.

      Colley & Colley, for plaintiff in error.

      B. C. Norman, solicitor-general, contra.'
   Luke, J.

1. The court substantially charged, as requested by the defendant, and, in view of the evidence, the charge of the court was most fair to the defendant.

2. The evidence amply authorized the jury to find that the defendant was in possession of many gallons of whisky, and of material and equipment for making more. lie had in his house clothes arid shoes covered with the “slops” from the still, etc. The trial court approved the verdict; no error of law is shown; the defendant had a fair trial by a jury of his people; and it was proper to overrule the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    10786.
    Clements v. The State.
    Decided November 4, 1919.
    Indictment for uttering forged check—-Judge Terrell. June 38, 1919.

      Justiss & Say, B. A. McGraw, for plaintiff in error.

      C. S. Boop, solicitor-general, contra.
   Bloodworth, J.

There is evidence to support the verdict. The motion for new trial contains no special grounds, and was properly overruled.

Judgment affirmed.

Broyles, O. J., and Lulce, J., concur.


text:
    10790.
    KINSEY v. THE STATE.
    1. Instructions to the jury on the law of involuntary manslaughter were not required in this case.
    2. A conviction of voluntary manslaughter was authorized by the evidence.
    Decided November 4, 1919.
    Conviction of manslaughter; from Laurens superior court—• Judge Kent. June 14, 1919.

      J. S. Adams, for plaintiff in error.

      E. L. Stephens, solicitor-general, contra.
   Bloodworth, J.

Under the facts of this case the court did not err in failing to charge the jury on the law of involuntary manslaughter. The accused was charged with murder, the indictment alleging that he “did kill and murder by striking and cutting the said Charlie Clover with a certain heavy piece of timber and club and knife.” The evidence showed that the wounds from which the deceased died were made by a scantling which was three or four inches wide, about three inches thick, and four or five feet long, and by a knife. A witness swore that the defendant cut the deceased “with a knife on'the left side of the chin, and on his arm; the cut made a deep gash,—I suppose to the bone. He also cut him on the left arm between the shoulder and elbow.” Another witness swore that the deceased was “cut on the side of the jaw; the gash was about an inch and a half wide and went to the bone ;• he was cut to the bone on the chin, . . his jawbone was broken, . . he seemed to be crushed in several places, and also three places on the left side of his head was skinned,—had rose up kinder, had departed from the skull and was full of water, soft like; this wound was inflicted by some kind of a blunt instrument; the wound on his chin could have been made by some sort of a knife.”

“All men are presumed to intend the natural and proximate "Consequences of their action. When a man kills another by the use of means appropriate to that end, he is presumed to have intended that end. ‘When death results from the unlawful use of a deadly weapon, the law by presumption imputes to the slayer an intention to HU.’ Gallery v. State, 92 Ga. 463 (17 S. E. 836). ‘When one voluntarily shoots at another and the shot kills, the homicide cannot be involuntary.’ Smith v. State, 73 Ga. 79 (3). See also Stovall v. State, 106 Ga. 444 (3), 447 (32 S. E. 586); Johnson v. State, 4 Ga. App. 59 (60 S. E. 813).” Conley v. State, 21 Ga. App. 135 (94 S. E. 261). Counsel for plaintiff in error relies upon Wrye v. State, 99 Ga. 34 (25 S. E. 610). That case is not binding authority on this point, as appears from the following: “While there can not be either murderer voluntary manslaughter without an intent to kill, yet where the weapon used by the slayer was a pocket-knife, and he stabbed the deceased in the back with it, the intent to kill may be presumed; and it was not necessary that the evidence should affirmatively show that the knife used was a weapon likely to produce death. Johnson v. State, supra. The two cases cited by counsel for the plaintiff in error (Wrye v. State, 99 Ga. 34, 25 S. E. 610, and Warnack v. State, 3 Ga. App. 590, 60 S. E. 288) to sustain their contention that the court should have charged the law of involuntary manslaughter although that theory of defense was raised solely by the defendant’s statement, are not binding authorities upon this point, for the reason that the general statements in the decisions of those cases, which apparently so hold, are obiter; it appearing that in the Wrye case there was a timely written request to give such a charge, and that in the Warnaclc case the theory of involuntary manslaughter was raised not only by the defendant’s statement, but also by the sworn testimony.” Lott v. State, 18 Ga. App. 747 (3), 748 (90 S. E. 727).

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

Judgment affirmed.

Broyles, O. J., and Lulce, J., concur.


text:
      10796.

    Barclay v. The State.

    Decided November 4, 1919.
    Indictment for manufacture of intoxicating liquor; from Pike superior court—Judge Searcy. July 5, 1919.

      Frank L. Adams, for plaintiff in error.

      F. M. Owen, solicitor-general, contra.
   Broyles, C. J.

1. In the absence of a timely and appropriate written request for more particular instructions upon the law of reasonable doubt, the charge upon that subject as given was sufficient.

2. The 1st and 2d special grounds of the motion for a new trial are merely elaboration of the general grounds. The evidence authorized the verdict, and the court did not err in overruling the motion for a now trial.

Judgment affirmed.

Lulce and Bloodworth, JJ., ooneur.


text:
    10797.
    Blood v. The State.
    Decided November 4, 1919.
    Indictment for car-breaking; from Richmond superior court— Judge II. C. Hammond. July 3, 1919.

      G. A. Picquet, for plaintiff in error.

      A. L. Franklin, solicitor-general, John M. Graham, contra.
   Luke, J.

This case is presented here upon the general grounds only. There is evidence to support the verdict. It was the right and province of the jury to credit such witnesses and circumstances as they, under an appropriate charge of the court,, deemed satisfied them beyond a reasonable doubt of the defendant’s guilt. It was not error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    10798.
    Jackson v. The State.
    Decided November 4, 1919.
    Indictment for larceny; from Richmond superior court—Judge H. C. Hammond. July 3, 1919.

      O. A. Picquet, for plaintiff in error.

      A. L. Franklin, solicitor-general, John M. Graham, contra.
   Bloodworth, J.

The motion for a new trial in this case contained the usual general grounds only. The evidence authorized the verdict, and the judgment is

Affirmed.

Broyles, O. J., and Lulce, J., concur.


text:
    10803.
    Powell v. The State.
    Decided November 4, 1919.
    Conviction of shooting at another; from Macon superior court— Judge Littlejohn. June 30, 1919.

      John B. Guerry, for plaintiff in error.

      Jule Felton, solicitor-general, contra.
   Luke, J.

The evidence in this ease demanded a finding of guilty, and the error complained of (if error it be) in the court’s ruling that the defendant by his statement had put his character in issue was harmless. It was not error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, O.'J., and Bloodworth, J.^ concur.


text:
    10805.
    Kelley v. The State.
    Decided November 4, 1919.
    Accusation of misdemeanor; from city court of Greenville— Judge Kevill. July 9, 1919.

      N. F. Culpepper, McLaughlin & Jones, for plaintiff in error.

      J. F. Hatchett, solicitor, M. Z. O’.Neal, contra.
   Broyles, C. J.

1. The exceptions pendente lite can not be considered, as no error was assigned thereon, either in the main bill of exceptions or in this court by counsel for the plaintiff in error before the case was submitted. Jones v. Ragan, 130 Ga. 653 (7), 655 (71 S. E. 1098).

2. It is well settled that the overruling of a demurrer to an indictment or accusation can not be a ground of a motion for a new trial.

3. The admission of the evidence complained of in the 5th ground of the motion for a new trial was not error for any reason assigned.

4. Under all the facts of the case, including the notes of the trial judge, it can not be said that the court erred in denying the several motions of the defendant to declare a mistrial, because of the various alleged improper and prejudicial remarks of the prosecuting solicitor during his argument to the jury. Some of these alleged prejudicial remarks were proper and authorized by the evidence, and the court specifically instructed the jury that those remarks of the solicitor which were improper were not in the ease and should not be considered by them.

5. While the charge of the court is subject to criticism in several particulars, none of its errors complained of requires a new trial.

6. The alleged newly discovered evidence is largely impeaching in its character, and is not such evidence as would probably produce a different result upon another trial of the case.

7. The rule that in a criminal case the defendant can not legally be convicted upon the uncorroborated testimony of an accomplice does not apply to misdemeanors. The verdict was amply authorized by the evidence.

Judgment affirmed.

Lube and Bloodworth, JJ., concur.


text:
    10810.
    Grant v. The State.
    Decided November 4, 1919.
    Conviction of manslaughter; from Evans superior court—Judge Evans. June 7, 1919.

      P. M. Anderson, for plaintiff in error.

      J. Saxton Daniel, solicitor-general, contra.
   Bloodworth, J.

1. “The overruling of a demurrer to an indictment can not properly be made a ground of a motion for a new trial.” Veal v. State, 116 Ga. 589 (42 S. E. 705) ; Brown v. Wilkes, 20 Ga. App. 92 (92 S. E. 553), and cases cited.

2. Under*tlie qualifying note of the trial judge there is no merit in the fifth ground of the motion for a new trial.

3. The court did not err in charging the jury on voluntary manslaughter.

4. The evidence suqiports the verdict.

Judgment affirmed.

Broyles, O. J., and Luke, J., coneur.


text:
    10811.
    Smith v. The State.
    Decided November 4, 1919.
    Indictment for assault with intent to rape; from Wilcox superior court—Judge Gower. July 8, 1919.
    The instruction, referred to in the decision was as follows: “I charge you further that if any threats of violence have been shown to your satisfaction beyond a reasonable doubt, that such threats of violence or serious physical and bodily harm, if so shown to your satisfaction beyond a reasonable doubt, may be sufficient to overthrow the will of the woman, and no actual force would be necessary to constitute the offense as charged, if all the other elements of the offense are shown to your satisfaction.” It was contended that this was error because applicable only to cases in which the charge is rape and in which the evidence shows consummation of the rape, and not to cases in which merely an attempt to commit' rape is charged and the woman did not yield either to force or threats. It was further contended that the province of the jury was invaded by the instruction that such threats “may be sufficient,” etc.
   Broyles, C. J.

1. The single excerpt from the charge of the court complained of, while slightly inaccurate and perhaps inapplicable to a case of assault with intent to rape, does not, under all of the facts of the ease and the entire charge of the court, require a new trial. The charge of the court was a very exhaustive and fair presentation of the law of the case, and clearly and fully presented all the contentions of the defendant, and gave him the benefit of all the defenses offered or which could have been offered by him.

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

Judgment affirmed.

Imke and Bloodworth, JJ., concur.

Eldridge Gutts, M. B. Gannon, for plaintiff in error.

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


text:
    10812.
    Dalton v. The State.
    Decided November 4, 1919.
    Accusation of iflisdemeanor; from city court of Macoa —Judge Guerry. July 1, 1919.

      Olin J. Wimberly, Thomas A. Jacobs, G. A. Cunningham, for plaintiff in error.

      Will Gunn, solicitor, contra.
   Luke, J.

The defendant was charged with possessing intoxicating liquors in violation of law. The evidence authorized his conviction; and this being true (there being no error of law complained of), this court is powerless to set the conviction aside.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., eoneur.


text:
    10815.
    Waller v. The State.
    Decided November 4, 1919.
    Conviction of stabbing; from city court of Macon—Judge Guerry. July 19, 1919.
    The instructions complained of were as follows: “Where several witnesses who are equally credible testify on the question as to whether an alleged thing happened at a certain time and place or not, and one of them testifies positively that such thing did happen, and the other witnesses had the same opportunity of observation and testify that they did not see or know that it happened, the testimony of the one positive witness should have greater weight than the testimony of such negative witnesses. If the one positive witness" had the better opportunity of knowing what tianspired than the negative witness had, then for a greater reason the testimony of such positive witness should have greater weight. In determining the probative value of the positive and negative testimony, the credibility of the witnesses should be considered. If the testimony of any one or more of the witnesses on either side of the question is corroborated by any fact or by the testimony of any other witnesses in the case, that corroboration should also be considered in determining the probative effect of positive and negative testimony. If Eaty Reed [the prosecutrix] was cut on her breast on the occasion testified about, and the defendant then and there, immediately after the cutting, stated that he cut her, you should consider this statement also in determining the probative effect of the positive and negative testimony along with the defendant’s statement on the stand. If the testimony of a witness otherwise appears to be negative, his statement that the thing could not have happened without his seeing it would not change his negative testimony to positive testimony.” It was contended that the court erred in so charging for the reason that the charge excluded from the consideration of the jury the evidence tending to show that the witness Eaty Reed was not cut by the defendant on the occasion as to which she testified; and that the court erred particularly in charging that “if the testimony of a witness otherwise-appears to be negative, his statement that the thing could not have happened without his seeing it would not change his negative testimony to positive testimony;” that this was not a correct statement of the law, without explanation or qualification. ^
   Bloodworth, J.

1. The court did not err in charging the jury as complained of in the amendment to the motion for new trial.

2. There is ample evidence to support the verdict, and the judgment is

Affirmed.

Broyles, G. J., and Luke, J., eonev,r.

H, F. Rawls, for plaintiff in error. Will Gunn, solicitor, contra.


text:
    10816.
    King v. The State.
    Decided November 4, 1919.
   Broyles, C. J.

1. None of the excerpts from the charge of the court complained of, when considered in connection with the charge as a whole, shows cause for a reversal of the judgment below.

2. Under the facts of the ease, the court did not err in denying the defendant's motion for a mistrial.

3. The verdict was authorized by the evidence.

Judgment affirmed.

Luhe and Bloodworth, JJ.} concur.

Indictment for larceny of horse; from Bibb superior court— Judge Mathews. July 17, 1919.

John R. Cooper, W. 0. Cooper Jr., for plaintiff in error.

John P. Ross, solicitor-general, contra.


text:
    10817.
    Smith v. The State.
    Decided November 4, 1919.
    Indictment for burglary; from Bibb superior court—Judge Mathews. July 12, 1919.

      John R. Cooper, ~W. 0. Cooper Jr., for plaintiff in error.

      John P. Ross, solicitor-general, contra.

   Luke, J.

The evidence in this case almost demanded the conviction of the defendant, who was charged with burglary. The defendant had the benefit of a fair trial under a most favorable charge of the court. It was not error to overrule the motion for a new trial.

Judgment affirmed.

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


text:
    10818.
    THARPE v. THE STATE.
    Former jeopardy in a prosecution in a Federal court for violation of the internal revenue laws of the United States can not be pleaded in a State court to an indictment charging a violation of the State law prohibiting the making of alcoholic liquors.
    Decided November 4, 1919.
    Indictment for manufacture of intoxicating liquor; from Bibb superior court—Judge Mathews. July 12, 1919.

      John R. Cooper, W. 0. Cooper Jr., for plaintiff in error.

      John P. Ross, solicitor-general, contra.
   Bloodworth, J.

The accused was indicted for making alcoholic liquors. He pleaded “former jeopardy,” alleging “that he plead guilty in the United States district court for the southern district of Georgia for the offense of violation of the internal revenue laws of the United States; . . that the offense charged is the very same offense as that he is now charged with; that the United States district court for the southern district of Georgia had full jurisdiction to try him.” The plea was properly stricken. It shows on its face that he pleaded guilty in a different jurisdiction and to an indictment which charged a violation of a Federal statute, and to the commission of a crime wb ich is entirely different and distinct from the one for which he was indicted and tried in the State court.

Judgment affirmed.

Broyles, G. J., and Lulce, J., concur.


author: Beoyles, C. J.

text:
    10819.
    Thomas v. The State.
    Decided November 4, 1919.
    Indictment for manufacture of intoxicating liquor; from Bibb superior court—Judge Mathews. July 12, 1919.

      John B. Cooper, W. 0. Cooper Jr., for plaintiff in error.

      John P. Boss, solicitor-general, contra.
   Beoyles, C. J.

1. One who is present at a distillery when whisky is being manufactured, and who personally assists in the manufacture, is guilty of manufacturing whisky; and it is immaterial whether or not he owns the distillery, or whether or not he is hired to work thereat.

2. There is no substantial merit in any of the special grounds of the motion for a new trial; the defendant’s conviction was authorized by the evidence; and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


text:
    10820.
    Thomas v. The State.
    Decided November 4, 1919.
    Indictment for possession of intoxicating liquor; from Bibb superior court—Judge Mathews. July 12, 1919.

      John B. Cooper, W. 0. Cooper Jr., for plaintiff in error.

      John P. Boss, solicitor-general, contra.
   Luke, J.

1. A plea of former conviction is good as against demurrer only when it sets out the record of the former trial and conviction and judgment, and such a state of facts as will show that the former conviction was for the same offense for which the defendant is about to be arraigned. See Blair v. State, 81 Ga. 629 (7 S. E. 855).

(a) It was not error to strike the plea in this case.

2. The evidence amply authorized the conviction, and there is no error in the charge of the court. For no reason assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

.Broyles, O. J., and Bloodworth, J., concur.


text:
    10825.
    Paceley v. The State.
    Decided November 4, 1919.
    , Indictment for manufacture of intoxicating liquor; from Dooly superior court—Judge Gower. July 19, 1919.

      Powell & Lumsden, for plaintiff in error.

      J. B. Wall, solicitor-general, contra.
   Bloodworth, J.

1. “Under repeated rulings of this court and of the Supreme Court, a ground of a motion for a new trial must be complete in itself. When it is so incomplete as to require this court to refer to the pleadings or to the brief of evidence, it will not be considered. Bridges v. Griffin, 20 Ga. App. 598 (2), 599 (93 S. E. 170). See also Copeland v. Ruff, 20 Ga. App. 217 (2) (92 S. E. 955); Head v. State, 144 Ga. 383 (87 S. E. 273); Smiley v. Smiley, 144 Ga. 546 (2) (87 S. E. 668).” Cæsar v. State, 22 Ga. App. 796 (97 S. E. 255). Under the rulings in the cases cited, neither of the two special grounds of the motion for new trial in this case can be considered by this court.

2. There is ample evidence to support the verdict.

Judgment affirmed.

Broyles, O. J., and Luhe, J., concur.


text:
    10839.
    Joyce v. The State.
    Decided November 4, 1919.
    Indictment for bigamy; from DeKalb superior court—Judge Smith. July 26, 1919.

      Ernest Q. Bentley, Waller A. Sims, for plaintiff in error.

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

1. A new trial will not be granted because of alleged improper remarks made by counsel, when it does not distinctly appear from the record that the remarks were heard by the court, and when no objection was made by the opposite party and no action of the court invoked in reference to the remarks. Odell v. State, 120 Ga. 152 (47 S. E. 577), and cases cited.

2. The 2d special ground of the motion for a new trial is disapproved by the trial judge; and no error in the trial of the case is shown by the other special grounds of the motion.

3. The evidence amply authorized the defendant’s conviction of bigamy, and the trial judge, approving the verdict, properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    10846.
    Woods v. The State.
    Decided November 4, 1919.
    Indictment for manufacture of intoxicating liquor; from Talbot superior court—Judge Howard. July 19, 1919.

      J. II. McGehee, J. A. Smith, for plaintiff in error.

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

The motion lor a new trial contained only the usual general grounds. There was some slight evidence which authorized the verdict, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    10851.
    Adams v. The State.
    Decided November 4, 1919.
    Indictment for manufacture of intoxicating liquor; from Harris superior court—Judge Howard. July If, 1919.

      Henry G. Gamer on, for plaintiff in error.

      G. F. McLaughlin, solicitor-general, contra.
   Luke, J.

This case is here upon the sole assignment of error that the evidence does not authorize the verdict. The State, made a ease by tlie witnesses offered to prove the crime. The defendant by his witness and statement contradicted the evidence offered by the State. The jury believed the witnesses for the State and convicted the defendant. The trial judge has approved the verdict. The judgment overruling the motion for a new trial must be

Affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    10852.
    CULBERSON v. THE STATE.
    Where a motion for a new trial is based only on the usual general grounds, this court can not intei'fero with the judgment of the trial judge overruling the motion, if there is any evidence, however slight, to support the verdict.
    Decided November 4, 1919.
    Indictment for possession of intoxicating liquor; from Harris superior court—Judge Howard. July 36, 1919.

      J. B. Burnside, for plaintiff in error.

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

“In this ease the motion for a new trial contained only the usual general grounds. There was some slight evidence authorizing the verdict; and the verdict having been approved by the trial judge, under the repeated and uniform rulings of this court and of the Supreme Court" a reviewing court is powerless to interfere. When the verdict is apparently decidedly against the weight of the evidence, the trial judge has a wide discretion as to granting or refusing a new trial; but whenever there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Bradham v. State, 21 Ga. App. 510 (94 S. E. 618), and cases cited.

Judgment affirmed.

Broyles, G. J., and Buhe, J., concur.


text:
    10858.
    Bailey v. The State.
    Decided November 4, 1919.
    Conviction of assault and battery; from Barrow superior court— Judge Cobb. July 24, 1919.

      M. D. Irwin, I. L. Oahes, for plaintiff in error.

      W. 0. Bean, solicitor-general, contra.
   Broyles, C. J.

1. Under the facts of the case the court did not err in overruling the defendant’s motion for a continuance of the case.

2. The evidence amply authorized the verdict, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Lulce and Bloodworih, JJ., concur.


text:
    10859.
    Henderson v. The State.
    Decided November 4, 1919.
    Indictment for larceny after trust; from Floyd superior court— Judge Wright. August 9, 1919.
   Luke, J.

An indictment, drawn under section 193 of the Penal Code (1910), -which alleges that the defendant’ was entrusted with promissory notes for stated sums of money, for the purpose of collecting the money which was due thereon, is subject to special demurrer, where there is no allegation that the notes were of value. See Davis v. State, 40 Oa. 229. The court erred in overruling the demurrer which attacked the indictment for insufficiency in failing to allege that the notes were solvent or of any value.

Judgment reversed.

Broyles, O. J., and Bloodioorth, J., concur.

M. B. Eubanks, for plaintiff in error.

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


text:
    10868.
    Miller v. The State.
    Decided November 4, 1919.
    Rehearing denied December 9, 1919.
    Accusation of stabbing; from city court of Macon—Judge Guerry. August 12, 1919.
    Ophelia Miller was charged with having cut and stabbed Orena (or Irene) Webb, not in self-defense and not under other circumstances of justification. The defendant, in her statement at the trial, said: “The reason I cut her was on account of my husband.” She stated that she had seen him going with this woman, that the woman wrote to him that she was coming to meet him, and went to a house across the alley from the house in which the defendant and her husband, John Miller, lived, and called him and whistled for him, but he did not answer. The defendant added: “So I got mad and walked across the street, and I said, ‘John is my husband and I am his wife, and I know you are goings together all the time;’ and she jumped up and cursed me, and was trying to fight me, and I grabbed her and cut her. . . I tells her she had to leave him alone, and she jumped up and commenced cursing, and I cut her with a knife.” A witness for the State testified that Irene Webb said, “There is John Miller, where is his wife?” and the defendant walked up to her and said, “Who do you want to see, Johnnie Miller?” and began cutting her. Irene Webb, in her testimony, denied that she went to meet the defendant’s husband, or called to him, or cursed or said anything to the defendant. She testified that the defendant charged her with having come to the house to see John Miller, and then threw her across a bed and commenced cutting her. A love letter signed “Miss Irene Webb,” and addressed, “My dear John,” asking him to meet the writer at a certain time and place, and saying she did not “care a damn” about his wife and would “stand a shot” about him, was shown to the witness Irene Webb; she denied that she had written or signed it, or knew anything about it; and the court refused to admit it in evidence when the defendant sought to introduce it. In the 9th special ground of the motion for a new trial it is alleged that the court erred in excluding this letter. In a note to this ground the judge referred to the denial of Irene Webb that it was her letter. The court charged the jury: “If the defendant in this ease cut Orena Webb at the time and place stated in the accusation, on account of her husband, meaning thereby to prevent the girl having sexual intercourse with him, if the defendant’s husband was not there at the time, if no enterprise was going on at the time for such illicit purpose, or circumstances at the time that made it appear that such could have occurred, I charge you that the defendant is guilty.” The court further charged, “If you believe from her statement and the evidence in the case that she cut her under circumstances, as they appear in all the evidence in the case, to prevent illicit intercourse between the husband of the defendant and the girl, then I charge you that under the law she is guilty and it is your duty to so find.” The court charged also that profanity or insulting language would not justify the cutting. These and other instructions are complained of in the motion for a new trial.
   Broyles, C. J.

1. In the light of the note of the trial judge, tliex’e is no merit in the 9th special gx-ound of the motion for a new trial.

2. The vei'dict was demanded by the evidence and the statement of the defendant; and therefore, if there were any errors in the charge of the court, they were harmless.

3. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Lulco and Bloodworth, J.J., concur.

Hubert Rawls, Feagin & Hancock, for plaintiff in error.

Will Gunn, solicitor, contra.


text:
    10869.
    Harris v. The State.
    Decided November 4, 1919.
    Accusation of possessing intoxicating liquors, from city court of Dublin. August 18, 1919.
    From the evidence it appeared that seven quarts and a pint of whisky were found in the room of Cora Lee Harris, the defendant, by two officers who together were searching the house in her absence. The whisky was concealed in the wall, under a window sill, whore a piece had been sawed out of the ceiling and the window curtains dropped down over it. On taking out a piece of ceiling which had holes bored in it the officers found the whisky. The house was “a common negro house, with two rooms in front and two shed-rooms on the back, with a stack chimney in the middle, and Cora Leo’s apartment was in one end of the house. . . It seemed like somebody was living in the other end of the house.” A woman was in that end, and a curtain hung between the two parts of the house; one of the witnesses thought the partition had been taken out. The officers sent for the defendant, and a day or two later she came to one of them and said she wanted to “fix up the bond,” that she had found whose whisky was in her house; it belonged to “a fellow named Jonas Harris;” and on her statement he was arrested, and a pint of whisky was found on him. These officers were the only witnesses at the trial. In her statement at the trial the defendant said she was married and ivas living with her husband when the whisky was found; 'that another woman was living in the same house; that she did not see the whisky and knew nothing of it; that after one of the officers had asked her about it the man who brought it there came and called for his whisky, and she told the officer about it.
   Luke, J.

The evidence did not authorize the conviction of the defendant upon the charge of unlawfully possessing intoxicating liquors. It was error to overrule her motion for a new trial.

Judgment reversed.

Broyles, G. J., and Bloodworth, J., concur.

Smythe Burch, W. A. Dampier, for plaintiff in error.


text:
    10876.
    Crawley v. The State.
    Decided November 4, 1919.
    Indictment for manufacture of intoxicating liquor; from Pike superior court—Judge Searcy. August 2, 1919.

      Redding & Lester, for plaintiff in error.

      E. M. Owens, solicitor-general, contra.
   Broyles, C. J.

The evidence amply authorized, if it did not demand, the defendant’s conviction; and none of the special grounds of the motion for a new trial shows cause for a reversal of the judgment below.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    10878.
    Hargett et al. v. The State.
    Decided November 4, 1919.
    Indictment for manufacture of intoxicating liquor; from Harris superior court—Judge Howard. July 36, 1919.

      George G. Palmer, for plaintiffs in error.

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

1. The special ground of the motion for a new trial points out no error which would require the grant of a new trial.

2. This court is a court for the correction of errors of law alone. “It has no authority to entertain an assignment of error that the verdict is contrary to the evidence, if there is any evidence at all to support the verdict. This ground in the motion for new trial is addressed to the discretion of the trial judge, upon whom is imposed the duty of being satisfied with a verdict before he approves it.” Bell v. Aiken, 1 Ga. App. 36 (57 S. E. 1001). On questions of fact the jury is the final arbiter. The trial judge by overruling the motion for a new trial expressed his satisfaction with the verdict, and this court will not interfere.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


text:
    10879.
    Mullins v. The State.
    Decided November 4, 1919.
    Indictment for possession of intoxicating liquors; from Harris superior court—Judge Howard. July 36, 1919.
    A policeman testified, that he searched the defendant’s house for whisky on June 10, 1918, and in a bedroom found on a bed two gallon jugs, each about half full of whisky; that there was nobody at the house, but the defendant soon came to the house and was placed under arrest and said that a negro named Will Maddox left the whisky there, that he came there with a package in a sack and asked her to let him leave it, and he carried it into the room, and she did not know what was in the sack “until after they were going to town, when Will told her it was whisky;” that she very promptly told whom it belonged to, and, from the’information she gave, the witness went to the house of Will Maddox and, on. search, found there whisky of the kind found in the defendant’s house. Another officer testified, that on or about November 1, 1917, on seeing a negro standing near the defendant’s house, with a bottle in his hand and two or three other negroes, he searched the bouse for whisky; that none was found in the house, but he found under a large box near the back steps a gallon jug of whisky, partly filled; that the defendant was in the house ironing, with her daughter, who was about grown; that she made no objection to the search, and told him to go ahead, that she had no whisky there. This witness further stated that he thought there were some negroes boarding at the defendant’s house; that she was an industrious negro woman, who washed ánd ironed and cultivated a little patch; and tbit'there was no fence around the house; “it was just an open space around there.” No additional witness testified. In her statement at the trial the defendant asserted her innocence and repeated in substance the statements which the officers testified she had made to them.
   Broyles, C. J.

The defendant was convicted of having, possessing, and controlling intoxicating liquors. The evidence as to her connection with the whisky was entirely circumstantial, and failed* to exclude every reasonable hypothesis save that of her guilt, and was consistent with the theory of her innocence. The court therefore erred in overruling her motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

George G. Palmer, for plaintiff in error.

O. P. McLaughlin, solicitor-general, contra.


text:
    10882.
    Williams v. City of Dublin.
   Broyles, C. J.

1. One who seeks a writ of certiorari to review the judgment of a recorder’s court of any town or city, and who does not file an affidavit in forma pauperis, must, as a condition precedent to obtaining the writ, file such a bond as is required by law; and this fact must be affirmatively shown by the petition, and it is not so shown hy the mere statement in the petition that the bond required by law in such a case has been filed, or words to that effect, such a statement being a mere conclusion of the petitioner. Where a certified copy of the bond is not attached to the petition, “the petition must set forth all the essential substantive faets which are necessary to enable the judge of the superior court to intelligently decide whether or not the bond given is really such a bond as is demanded by the statute.” Hubert v. Thomasville, 18 Ga. App. 756 (90 S. E. 720).

2. One of the essentials of a bond given by one who seeks to review by certiorari a judgment of a recorder’s court of any city or town is that the bond shall be made payable to the municipal corporation under which the court exists. Park’s Ann. Code, § 5191 (a).

3. In the instant case the petition for the writ of certiorari sought to review a judgment of the recorder’s court of the City of Dublin. No pauper’s affidavit as to the petitioner’s inability to give the required bond was filed, and the petition failed to show that the bond given was made payable to the City of Dublin. The court, therefore, did not err in refusing to sanction the writ.

Decided November 4, 1919.

Petition for certiorari; from Laurens superior court—Judge Kent. July 8, 1919.

J. A. Merritt, W. A. Dampier, for plaintiff in error.

T. A. Evans, contra.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur*


author: Duke, J.

text:
    10881.
    Powell v. City of Dublin.
    Decided November 4, 1919.
    Petition for certiorari; from Laurens superior court—Judge Kent. July 8, 1919.

      W. A. Dampier, for plaintiff in error. T. A. Evans, contra.
   Duke, J.

This case is controlled by the decision of this court in Williams v. City of Dublin, ante, 358.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    10881.
    Powell v. City of Dublin.
   Bloodworth, J.

The petition for certiorari in this case contains the following: “Petitioner avers that he has given the bond as required by law in such cases made and provided, conditioned that ho be and appear personally to answer any judgment, order, sentence or decree of either the recorder’s court of the City of Dublin or of the superior court of Laurens county, which bond was duly approved by the chief of police of the City of Dublin, who is clerk of the recorder’s court of said City of Dublin, which bond was duly filed with said clerk and Chief of Police, J. J. Flanders.” Section 5191 {a) of Park’s Ann. Code (Acts 1902, p. 105) provides that “Any person who shall seek a writ of certiorari to review and correct the judgment of any recorder’s court, or of other police court, of any town or city, by whatever name known,, shall first file with the clerk of said court or if no clerk with the judge of said court, except when the defendant is unable from poverty to give bond and a proper pauper affidavit is furnished, a bond payable to the municipal corporation under which such court exists, in amount and with surety acceptable to and approved by the said clerk or judge, as the ease may be, conditioned for the personal appearance of the defendant to abide the final order, judgment or sentence of said court, or of the superior court, in said case.” The petition in this case does not show that the bond alleged to have been given was “a bond payable to the municipal corporation under which such court exists,” and contains no reference to the amount of the bond. The pauper affidavit provided by the statute was not attached to the petition, nor was a copy of the alleged bond incorporated in the petition or attached thereto. Under the rulings in Hubert v. Thomasville, 18 Ga. App. 756 (90 S. E. 720), and Gillespie v. Macon, 19 Ga. App. 1 (90 8. E. 970), the judge did not err in refusing to sanction the certiorari. See Williams v. Dublin, ante, 358.

Decided November 4, 1919.

Petition for certiorari; from Laurens superior court—Judge Kent. July 26, 1919.

W. A. Dampier, for plaintiff in error. T. A. Evans, contra.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


author: Broyt.es, C. J'.

text:
    10887.
    Keys v. The State.
    Decided November 4, 1919.
    Indictment for burglary; from Bartow superior court—Judge Tarver. August 2, 1919.

      W. G. Henson, A. L. Henson, for plaintiff in error.
    J. M. Lang, solicitor-general, contra.
   Broyt.es, C. J'.

1. The court did not err in failing to charge the jury upon the law of larceny.

2. The alleged newly discovered evidence, which is the basis of the second special ground of the motion for a new trial, is cumulative in character and is not such evidence as would probably cause a different result upon another trial of the case.

3. The evidence amply authorized the verdict, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    10892.
    Johnson v. The State.
    Decided November 4, 1919.
   Luke, J.

An indictment under section 442 of the Penal Code (1910), which charges the defendant with being and appearing drunk upon a certain highway, is subject to special demurrer unless it contain the further allegation that the drunkenness was caused by “the excessive use of intoxicating wines, beers, liquors, or opiates.” In this case it was error to overrule the ground of the demurrer which pointed out this specific defect. There is no merit in the other grounds of the demurrer. The court having erroneously overruled the demurrer, everything thereafter occurring was nugatory.

Judgment reversed.

Broyles, G. J., and Bloodworth, J., concur.

Indictment for misdemeanor; from Floyd superior court—Judge Wright. August 16, 1919.

W. B. Mebane, for plaintiff in error..

O. H. Porter, solicitor-general, contra.


author: BloodWoeth, J.

text:
    10899.
    Sayler v. The State.
    Decided November 4, 1919.
    Conviction of shooting at another; from Sumter superior court— Judge Littlejohn. August 5, 1919.

      Mixon & Pace, for plaintiff in error.

      Jule Felton, solicitor-general, contra.
   BloodWoeth, J.

The special grounds of the motion for new trial are devoid of merit. There is evidence sufficient to support the verdict, which has the approval of the trial judge; and the judgment is

Affirmed.

Broyles, G. J., and Luke, J., concur.


text:
    10913.
    Bridges v. The State.
    Decided November 4, 1919.
    Indictment for manufacture of intoxicating liquor; from Terrell superior court—Judge Worrill. August 18, 1919.
    The charge complained of was as follows: “Where an alibi is set up as a defense, which is not established, the jury have the right to take it into consideration in connection with the other evidence, and if they have a reasonable doubt about his guilt upon the whole of the evidence, including such attempted alibi, where not established, they ought to acquit.” It was contended that this “was contrary to law and not authorized by the evidence,” and that “it carried an expression of opinion by the court, or tended to give the jury the impression of a belief by the court, that the alibi set up had not in fact been established, or was merely an attempted alibi.”
   Bloodworth, J.

1. The excerpt from the charge of which complaint is made in the special ground of the motion for a new trial does not express or intimate the opinion of the presiding judge “as to what has or has not been proved or as to the guilt of the accused,” and, when read in connection with the entire charge, contains no error which requires this court to reverse the judgment of the trial court.

2. The verdict rendered is approved by the trial judge, and there is ample evidence to support it.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.

C. W. Worrill, W. B. Parks, for plaintiff in error.

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


text:
    10915.
    TOWLER v. THE STATE.
    The discretion of the trial judge in overruling an extraordinary motion for a new trial will not, unless manifestly abused, be interfered with by this court. No such abuse of discretion appears in this case.
    Decided November 4, 1919.
    Conviction of assault with intent to rape; from Gwinnett superior court—Judge Cobb. September 5, 1919. .

      Kelley & Kelley, 0. A. 'Nix, W. L. Nix, John R. Cooper, for plaintiff in error.

      W. 0. Dean, solicitor-general, N. L. Hutchins, contra.
   Luke, J.

All extraordinary motions for new trial are addressed to the sound discretion of the trial judge, and this court can not reverse a judgment of a trial judge in overruling such a motion, unless his discretion has been manifestly abused. We cannot say, in view of the precedents of the Supreme Court by which we are bound, that the trial judge, in hearing the showing and counter-showing upon the extraordinary motion, has manifestly abused the discretion with which by law he is charged. See, in this connection, Brown v. State, 141 Ga. 783 (82 S. E. 238), and cases cited. The case as originally made was weak, but there was some evidence to authorize the verdict. Necessarily this court must depend upon the trial courts, who have the parties and witnesses before them, to unreservedly approve or disapprove verdicts had in the trial court. The exercise of a discretion by a trial judge where the liberty of a human being is involved is a solemn duty, and where so exercised it must appear that such discretion has been manifestly abused before this court can set a judgment aside, which is the result of a conclusion reached in the exercise of such discretion.

Judgment affirmed.

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