text:
    8672.
    GATES v. THE STATE.
    1. Inculpatory statements not met by denial or answer when made in the presence and hearing of the accused at the time he was arrested and charged with the crime in question were admissible as evidence.
    2. Where, on the trial of one charged with breaking and entering a railroad-car and stealing from it certain bottles of vermuth and whisky, the question, “What per cent, of alcohol does it contain?-” was asked of a witness by counsel for the accused, for the purpose of showing that “vermuth is not a very good drink, and a negro never would drink it,” and the witness answered, “I don’t know,” the court did not err in ruling out this testimony.
    3. The exceptions to the instructions of the court as to unexplained possession of stolen goods are without merit; and the evidence authorized instructions based on the theory that the accused broke and entered the car or was present aiding and abetting the breaking and entering.
    4. No constitutional question was raised by the grounds of the motion for a new trial based on the contention that the court was without jurisdiction to try one charged with breaking and entering a car and stealing whisky, where the shipment was an interstate shipment; and even if any question is presented by these grounds, they are without merit.
    5. There is no merit in the contention that, under the prohibition law in operation when the liquors were stolen (June, 1916), they were not property and were without value, and could not be the subject of larceny. There was proof as to the value of the liquors, which were legally in the possession of a carrier for interstate transportation when stolen. And “value,” as the word is used in prosecutions of this kind, does not necessarily mean money value or market value.
    Decided June 13, 1917.
    Indictment for breaking and entering railroad-car; from Bibb superior court—Judge Mathews. February 17, 1917.

      John B. Cooper, for plaintiff in error.

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

There is no merit in the first two special grounds of the motion for a new trial. Inculpatory statements made in the presence and hearing of the defendant and neither answered nor denied by him are admissible in evidence. Penal Code, § 1029. See also Hoye v. State, 66 Ga. 740 (2); Franklin v. State, 69 Ga. 36 (2) (47 Am. R. 748); Watson v. State, 136 Ga. 236 (71 S. E. 122). “Evidence as to declaration ■ of a bystander, accusing one then present of the commission of a criminal act, which declaration the accused person heard but failed to deny or^explain, may tend to establish his guilt, and is admissible on his trial for such offense.” Thurman v. State, 14 Ga. App. 543 (3). See also Dudley v. State, 18 Ga. App. 509 (89 S. E. 599), and cases there cited.

There is no merit in the 3d ground of the amendment to the motion for a new trial. The court did not err in declining to allow counsel to show what per cent, of alcohol a particular intoxicating beverage contained. It was not denied that the drink in question contained some alcohol, and though the question, “What per cent, of alcohol does it contain?” was ruled out, together with the answer of the witness, the record shows that the witness in fact answered, “I don’t know,” and it therefore appears that the witness could not have given the information desired, even had the question been allowed by the court.

There is no merit in the 4th and 5th grounds of the amend-, ment to the motion for a new trial. The instructions given were authorized by the evidence.

The 6th, 7th, 8th, and 9th grounds of the amendment to the motion for a new trial attempt to raise a question as to the jurisdiction of the superior court of Bibb county, Georgia, to try -the defendant under an indictment charging that on a day named and in the county of Bibb he “did . . unlawfully and with force and arms break and enter a railroad freight-car of the Central of Georgia Eailway Company, on the, tracks and in the possession, custody, and control of said railway company as a common' carrier, with intent to steal goods, wares, freight and other things of value being therein, and, after breaking ..and entering said railroad car as aforesaid, then and there did unlawfully, wrongfully, and fraudulently take and carry therefrom, with intent to steal the same, two cases) each containing twelve bottles of French type vermuth, of the value of twenty dollars, and two cases of whisky of the value of twenty dollars, of the personal goods of the Central of Georgia Eailway Company as a common carrier, contrary to the laws of said State, the good order, peace, and dignity thereof.” The objection to the jurisdiction of the superior court of Bibb county is that the goods alleged to have been stolen were part of an interstate-commerce shipment then in transit, and that the burglarizing of the car was therefore not punishable under the State law. Counsel for plaintiff in error suggests in his brief that a constitutional question is thus raised, which should therefore be referred to the Supreme Court. No reference whatever to the constitution of this State‘or of the United States is made in any of these grounds of the motion for a new trial, and therefore no constitutional question is presented. Conceding that any question whatever is sufficiently presented by these grounds of the motion, it is enough to say that there is no merit therein.

The 10th and 11th grounds of the amendment to the motion for a new trial complain that the property alleged to have been stolen was of no value and was not property under the laws of the State of Georgia, and that the State failed to prove that the property had any legal value, for the reason that Georgia was a prohibition State. There is no merit in this objection. There was proof as to 'the value of the stolen intoxicants, which were legally in the possession of a carrier for interstate transportation at the time of the burglary. Also, “value, as the word is used in prosecutions for larceny, does not necessarily mean money value or market value.” Mance v. State, 5 Ga. App. 229 (3), 230 (62 S. E. 1053).

The evidence authorized the conviction of the accused, and the trial court did not err in overruling the motion for a new trial.

Judgment affirmed.

George and Luke, JJ., concur.


source: Caselaw Access Project

author: George, J.

license: Public Domain

text:
    8609.
    Driskell et al. v. The State.
   George, J.

1. Upon the trial of three defendants jointly indicted for murder, there was evidence tending to show that they assaulted the deceased at or about the same time, the defendant Dennis (alias Robert) Driskell catching and holding the deceased, the defendant Levi Driskell striking the' deceased with a banjo, and the defendant Jack Driskell shooting and killing the deceased with a pistol; but the evidence did not demand a finding that there was any conspiracy or common felonious design on the part of the three defendants to take the life of the deceased, nor did it authorize a finding that the assault made by Dennis (alias Robert) and Levi Driskell caused the death of the deceased, field, that the court should have instructed the jury (with reference to the defenses of Dennis, alias Robert, Driskell, and Levi Driskell) to the effect: (1) that, if the defendants did not kill the deceased, or participate in the felonious design of the person who did shoot and kill him, but made a separate and independent assault upon him with a ueapon likely to produce death, and with intent to kill him, and under such circumstances that if death had ensued it would have been a ease of murder, then such defendants would be guilty of assault with intent to murder; and (2) that if the defendants (Dennis, alias'Robert, Driskell, and Levi Driskell) assaulted and wounded the deceased under such circumstances as just detailed unlawfully, but without any intention to kill, and such assault did not result in death, then they would be guilty of assault and battery. Compare Baynes v. State, 135 Ga. 219 (69 S. E. 170), and cases there cited. The three defendants having been found guilty of manslaughter, the failure to instruct the jury substantially as above indicated was cause for a new trial as to Dennis (alias Robert) Driskell and Levi Driskell.

2. As to the remaining defendant, Jack Driskell, the evidence authorized the verdict of manslaughter, and the court did not err in the following charge: “Where the evidence shows one person kills another the law would presume malice until the contrary appears; but it may appear from all the circumstances introduced into the trial of the case showing the killing. But, as I said to you just now, the law presumes every killing, where one person kills another, the law presumes the killing is with malice until the contrary appears.” Since the defendant Jack Driskell was acquitted of the offense of murder, the only offense involving the ingredient of malice, and was convicted of the offense of manslaughter, which does not involve malice, this charge is harmless, even if it is for any reason erroneous.

3. The failure of the court to give in charge section 76 of the Penal Code of 1910, which declares that, “the homicide appearing to be justifiable, the person indicted shall upon the trial. be fully acquitted and discharged,” was not cause for a new trial, where the court informed the jury that the defendants could not be convicted unless proved guilty beyond a reasonable doubt, and instructed them fully as to the defense of justifiable homicide, and that the verdict might be for murder, voluntary manslaughter, or justifiable homicide, treating a verdict of not guilty as equivalent to a finding that the defendants were justified. See Taylor v. State, 121 Ga. 318 (10), 356 (49 S. E. 303) ; Worley v. State, 136 Ga. 231 (4) (71 S. E. 153).

4. As to the defendant Jack Driskell, none- of the further assignments of error are meritorious, and the court did not err in overruling his mo' tion for a new trial. Eor the reasons stated in the first division of this opinion, the court erred in overruling the motions for new trial filed by Dennis (alias Robert) Driskell and Levi Driskell.

Decided June 13, 1917.

Indictment for murder—conviction of manslaughter; from Putnam superior court-—Judge Park. January 22, 1917.

Eugene M. Baynes, for plaintiffs in error.

Doyle Campbell, solicitor-general, contra.

Judgment affirmed as to Jaclc Drishell j reversed as to Dennis (alias Robert) Drishell and Levi Drishell.

Wade, C. J., and Lulce, J., concur.


text:
    8611.
    Bell v. The State.
    Decided June 13, 1917.
    Accusation of gaming; from city court of Leesburg. Judge Martin, February 23, 1917.

      R. R. Forrester, for plaintiff in error.

      J. B. Hoyl, solicitor, contra.
   George, J.

The evidence was sufficient to warrant the verdict, and the court did not err in overruling the motion for new trial based upon the general grounds only.

Judgment affirmed.

Wade, G. J., and Lulce, J., concur.


author: Wade, C. J.

text:
    8621.
    Cammon v. The State.
   Wade, C. J.

1. “The record of a deed properly executed is prima facie evidence of its delivery, and it becomes conclusive evidence if it is not rebutted by proof.” Mays v. Fletcher, 137 Ga. 27, 29 (72 S. E. 409). “The recording acts only authorize the clerk of the superior court to record such papers as are entitled to record and which have been attested in manner and form as the statute prescribes. The registry of a deed serves a dual function; it is constructive notice of the existence of the original deed, and permits its reception in evidence without proof of its execution.” Glover v. Cox, 137 Ga. 684, 691 (73 S. E. 1068, Ann. Cas. 1913D, 191).

2. On the trial of one accused of selling mortgaged property, where the execution of the mortgage was not denied, but it was denied that the mortgage included (in the knowledge of the defendant) certain cottonseed alleged to have been sold, an instruction by the court that “the record of this mortgage is prima facie evidence of the genuineness of the mortgage, and that the party signing the mortgage knew and understood what he was doing,” was, notwithstanding the general presumption of innocence, not error prejudicial to the defendant, the court further charging the jury, in that immediate connection, that “this prima facie presumption, however, may be overcome by proof, and, as a matter of fact, if the defendant didn’t know he was giving a mortgage, and didn’t know he had given a mortgage and. sold these seeds so believing, of course he couldn’t do it with intention to defraud, and he would not be guilty .of this offense.”

Decided June 13, 1917.

Indictment for sale of mortgaged property; from city court of Polk county—Judge John K. Davis. February 5, 1917.

Irwin & Tison; for plaintiff in error.

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

3. There is no merit in the ground of the motion for a new trial which assigns error on the admission in evidence of a mortgage in which the property alleged to have been illegally disposed of by the defendant is described as “my crop of cottonseed raised for this year, 1916, on the William Gower Farm, Polk county, Georgia,” as the supplementary parol testimony, offered before the introduction of the mortgage, further and more clearly identified the property sold as that described in the said mortgage.

.4. The evidence as a whole sufficiently supported the verdict.

Judgment affirmed,.

George and Luhe, J.J., concur.


author: Geokge, J.

text:
    8622.
    McCurry v. The State.
    Decided June 13, 1917.
    Indictment for misdemeanor; from Floyd superior court— Judge Wright. March 7, 1917.

      Harris & Harris, for plaintiff in error.

      G. H. Porter, solicitor-general, contra.
   Geokge, J.

The evidence was sufficient to warrant the verdict, and the court did not err in overruling the motion for new trial based upon the general grounds only.

Judgment affirmed.

Wade, O. J., and Luhe, J., concur.


author: Wade, O. J.

text:
    8627.
    Thompson v. The State.
   Wade, O. J.

1. There is no merit in the general grounds of the motion for a new trial. The evidence of the only eye-witness authorized a verdict of manslaughter. It was for the jury to determine whether the accused was acting under the fears of a reasonable man at the time he fired the fatal shots, or under the influence of irresistible passion; and they had the right, in the light of the surrounding circumstances shown to exist by the testimony of the sole eye-witness, to discredit the conclusions of that witness and the defendant’s statement to the jury, in determining whether to the mind of a reasonable man there was an apparent existing necessity to take the life of the deceased in order to prevent a felonious assault by him upon the defendant. Besides, it appears in the 6th ground of the motion for a new trial that the written request submitted to the court by counsel for the defendant requested an instruction to the jury that if “the defendant killed thi ,, ■ deceased not through fears of a reasonable man, but through the ex- ■ ■ citement of passion only, without deliberation, the defendant would not be guilty of murder, but would be guilty of voluntary manslaughter;” and while the judge refused to give *to 'the jury the entire instruction requested, he did instruct them touching the law of voluntary manslaughter; and the defendant, through his counsel, having invoked a charge on that subject, can not be heard to complain that the evi- - dence would only vs arrant the finding of justifiable homicide or of : . murder. Hopkins v. State, 119 Ga. 569 (46 S. E. 835) ; Partee v. State, 19 Ga. App. 752 (92 S. E. 306), reviewing Griggs v. State, 17 Ga. App. 302 (86 S. E. 726).

■ 2. The 4th ground of the motion for a new trial assigns error upon the refusal of the court to give in charge to the jury a requested instruction touching the -law of circumstantial evidence. The instruction referred to contained the statement that “where the State relies upon circumstantial evidence to convict a defendant, the proven facts must not ... only be consistent with the hypothesis of guilt but inconsistent with ■ the hypothesis of innocence,” omitting the qualification fixed by statute (Penal Code, § 1010) that “the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis, save that of the guilt of the' accused.” It is therefore unnecessary to consider further this ground of the motion . for a new trial, as in the absence of a proper ■ and legal request in writing, it is not reversible error to fail to give in charge the law of circumstantial evidence, where there is both direct and circumstantial evidence of guilt; and in this case only the intention of the defendant was left to be inferred from the circumstances shown by direct evidence. See, in this connection, Reddick v. State, 11 Ga. App. 150 (3) (74 S. E. 901).

3. There is no merit in the 5th ground of the motion for a new trial, complaining of the court’s refusal to give a requested instruction -to the jury touching the character of the deceased for peace or violence, as established by “his general reputation in the community,” to be considered by them “in determining the attitude of the deceased at the • time of the killing, and upon the question as to the state of mind of the defendant in reference to his fears for his own safety from serious • bodily injury, or from the infliction of a felony upon him.” The requested charge was not warranted by .the evidence, as there was no proof as to the “general reputation” of the deceased, nor was it shown ■ that the defendant had any knowledge that he was a man of violent temper.

4. The 6th ground of the motion for a new trial is without merit. The court gave a general charge covering the doctrine of reasonable doubt, and it was not error to omit an instruction to the jury, in connection with all the different features of the evidence or phases df the case, that the jury must be convinced beyond a. reasonable doubt. “A correct charge on reasonable doubt as to the whole case and all the evidence is sufficient. It is not incumbent upon the court to carve the case or the evidence into different propositions, and apply the rule of reasonable doubt to one or more of them severally.” Carr v. State, 84 Ga. 250 (4), 255 (10 S. E. 626). See also Watkins v. State, 18 Ga. App. 60 (88 S. E. 1000), and various cases there cited and discussed. Such part of this request as embodied proper and legal instructions was substantially covered by the charge as a whole.

5. The 7th ground of the motion for a new trial is likewise without merit, since the judge fully covered the law of self-defense in his charge as submitted to the jury, and gave sufficient instructions touching the fears of a reasonable man that a felony was about to be committed upon him.

6. The 8th ground of the motion for a new trial complains of the refusal of the court to give a requested charge to the jury tliat-they might take into consideration the disparity in the size and physical strength of the deceased, if any, etc. This charge was not authorized by the evidence, as there was no testimony -as to any disparity between the parties to the fatal affray in either size or strength, there being, no evidence as to the size or strength of the slayer. The defendant himself was before the jury, but he is not in person before this court, and, in the absence of any testimony, we can not conclude whether he • was strong or weak, large or small.

7. The 9th ground of the motion for a new trial alleged that “the defendant was put on trial without arraignment, the defendant’s counsel having, just prior to the time he pleaded not guilty, stated to the solicitor-general that he could not waive arraignment, that he would possibly want to challenge the array of the jurors, at the same time running his pen through the waiver of arraignment on the indictment, and the State’s having failed to arraign the defendant, being' a substantial legal right, said trial and conviction was illegal and void.” It does not appear from this ground of the motion for a new trial that the attention of the court was brought to the fact that- the defendant had not been formally called upon to enter a plea to the indictment. The fact that counsel for the defendant stated to the solicitor-general that he could not waive arraignment, and struck the waiver of arraignment on the indictment, did not “bring to the attention of the court” the failure to'call formally upon him to enter his plea to the indictment. Brown v. State, 19 Ga. App. 619 (91 S. E. 939) ; Perry v. State, 19 Ga. App. 619 (91 S. E. 939), and cases there cited. “One placed on trial in a criminal case will be held to have waived formal arraignment, unless, at the time of entering his plea of not guilty, he calls the attention of the court to the fact that he did not intend to waive arraignment. Merely striking from the printed waiver on the back of an accusation or indictment the words ‘waives formal arraignment’ will not entitle the accused, after verdict, to take advan- ■ tage of the fact that he was not formally- arraigned, when at the time the plea was entered and before the' trial was begun the attention of the court was • not called to the fact that the accused had not waived arraignment.” Harris v. State, 11 Ga. App. 137 (74 S. E. 895).

Decided June 13, 1917.

Indictment for murder—conviction of manslaughter; from Bichmond superior court—Judge Henry 0. Hammond. March 10, 1917.

Isaac S. Peebles Jr., for plaintiff in error.

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

8. There is no merit in the remaining assignments-of error, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

George and Luke, JJ., concur.


text:
    8683.
    Daniel v. The State.
    Decided June 13, 1917.
    Accusation of sale of liquor; from city court of Carrollton— Judge Beall. February 27, 1917.

      Smith & Spradlin, for plaintiff in error.

      Willis Smith, solicitor, contra.
   George, J.

The charge of the court was full and fair, and the assignments of error thereon are without merit. The evidence was ample to support the verdict, and the court^did not err in overruling the motion for new trial.

Judgment affirmed.

Wade, O. J., and Luke, J., concur.


text:
    8684.
    Hawkins, alias Holcomb, v. The State.
   Wade, C. J.

1. The credibility of witnesses is for the jury, who may believe them notwithstanding testimony offered for the purpose of impeachment.

2. Though the charge of the court, to the effect that if a witness has been successfully impeached the jury would not be authorized to believe his testimony, unless it appeared to their satisfaction “that the character of the witness had been restored by the witnesses testifying as to the good character, or other eireumstances vn the case,” did not expressly confine the consideration of the jury to such “other circumstances” as might corroborate the. testimony of the witness on some material point, yet when this excerpt is considered in connection with the entire charge and in the light of the evidence adduced at the.trial, the jury could not have been misled thereby; and there is no such merit in the only special ground of the motion for a new trial as will require a reversal. The evidence authorized the verdict.

Decided June 13, 1917.

Accusation, of sale of liquor; from city court of Carrollton-— Judge Beall. March 5, 1917.

Smith & Spradlin, for plaintiff in error.

Willis Smith, solicitor, contra.

Judgment affirmed.

George and Luke, JJ., concur.


author: Geokqe, J.

text:
    8685.
    Lockett v. The State.
    Decided June 13, 1917.
    Accusation of sale of liquor; from city court of Carrollton— Judge Beall. February 27, 1917. ■ '

      Smith & Spradlin, for plaintiff in error.

      Willis Smith, solicitor, contra.
   Geokqe, J.

There was no error in failing to charge the jury the law with reference to circumstantial evidence, there being positive evidence that the defendant sold whisky. The evidence was sufficient to • warrant the verdict of guilty, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

~Wade, O. J., and Luke, J'., concur.


text:
    8725.
    Alexander v. The State.
   Wade, O. J.

1. Section 2 of the act of 1915 (Acts of 1915, Extraordinary Session, p. 91) declares that “it shall be unlawful for any minor, or person, while intoxicated, to receive or acquire possession of any such liquors or beverages.” This part of this section, when construed in connection with the entire act, and in the light of the evident purpose of the legislature to regulate and restrict the shipment and delivery of intoxicating liquors and “mitigate the evils of intemperance,” was clearly intended to throw the arm of protection around all persons “while intoxicated,” and also around all minors, whether drunk or sober, by making it an offense against the penal law either for minors or for intoxicated persons to receive or acquire possession of any such liquors. Thus construed, the words “while intoxicated,” in the section referred to, qualify the word “person” only, and do not qualify or relate to the words “any minor.”

2. An indictment alleging that the accused, on a day and year and in a county named, “with force and arms did, being then and there a minor, receive and acquire possession of spirituous, vinous, malted, fermented, and other intoxicating liquors, contrary to the laws of said State, the good order, peace and dignity thereof,” was not subject to demurrer because it failed to allege further that the accused “was intoxicated at the time of receiving and acquiring possession of such liquors.”

Decided June 13, 1917.

Certiorari; from Putnam superior court—Judge Park. March 19, 1917.

Boy D. Stubbs, for plaintiff in error.

Doyle Campbell, solicitor-general, contra.

3. No other questions being involved therein, the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed

George and Lulce, JJ., concur.


text:
    8746.
    HOLMES v. THE STATE.
    There was no fatal variance between the allegations and the proof as to the color 'of the hog. in question, where the description in the indictment was: “one black barrow hog, with white feet and white spots in face,” and the testimony as to the stolen hog tended to show it had some small white spots on its body, in addition to the white spots in its face and white feet as alleged, and that the general color of its body was black.
    Decided June 13, 1917.
    Indictment for larceny of hog; from Tattnall superior court— Judge Sheppard. February 12, 1917.

      W: T. Burlchálter, S. B. McCall, for plaintiff in error.

      W. F. Slater, solicitor-general, contra.
   George, J.

1. The defendant was indicted for the larceny of “one black barrow hog, with white feet and white spots in face, . . the property of D. E. Jones” (the prosecutor). The question raised is whether the evidence shows the hog stolen to be the hog described in the indictment. The testimony tended to show that the hog stolen had some small white spots on its body, in addition to the white spots on its face and white feet as alleged, and the general color of its body was black. This is sufficient. It was ruled in. Timmons v. State 14 Ga. App. 802 (82 S. E. 378); “While (as is frequently the case in such matters) the different ■ witnesses disagreed in describing the color of the cow alleged to have been stolen, there was some evidence, descriptive of the color ■ of the cow, which was substantially conformable to the description in the indictment; and since the comparative weight to be attached to the testimony of the different witnesses is a matter addressed peculiarly and solely to the jury, it can not be said that there was a fatal variance between the allegata and probata.” Compare Crenshaw v. State, 64 Ga. 449, where it was said: “The indictment charged the stealing of ‘one blue hog, to wit, a sow weighing about one hundred and forty pounds, and having the marks following, to wit, a swallow fork in the right ear and a smooth crop in the left ear/ The description proved at the trial differed from the foregoing in two respects: first, the sow, though 'blue, had a narrow white list around her; and, secondly, the left ear bore the swallow-fork, and the right ear the smooth crop. Held, that the narrow white list did not conflict with the general description as to color given in the indictment; but that the earmarks proved varied materially from those alleged, and for this reason the prisoner was improperly convicted.”

■ 2. The evidence was sufficient to warrant .a conviction, and the court did not err in overruling the motion for new trial.

Judgment affirmed.

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


text:
    8747.
    WATTS v. THE STATE.
    1. Refusal to grant a continuance on account of the absence of a witness was not an abuse of discretion, where it appeared that the witness was not in this State and had not been subpoenaed, and it did not appear ■ that the witness was a permanent resident of this State or would ever again come into the State, although the party requesting the continuance stated that he thought he could “get the witness.”
    2. ' Exceptions on the ground that the judge failed “to charge the jury ■the law with reference to the burden of proof in connection with his ■ 'charge on the presumption of innocence” are without merit, full instructions being given on the presumption of innocence and on their duty to acquit if they should have a reasonable doubt' of the guilt of the accused.
    3. Eailure to charge as to the duty of a jury in considering conflicting testimony of .different witnesses did not entitle the accused to a new trial, there being no request for a charge on that subject, and the only testimony in the case being that of a single witness for the State.
    Decided June 13, 1917.

      Conviction of assault; from Bartow superior court—Judge Tarver. March 10, 1917.

      J. B. Whitalcer, for plaintiff in error.

      J. M. Lang, solicitor-general, contra.
   Wade, C. J.

Conceding that the defendant exercised diligence after learning that an indictment had been returned against him, and that it was impossible for him to procure the attendance of the absent witness, then without the limits of the State, who had never been subpoenaed, it does not appear that this witness was a permanent resident of this State, or that she was only temporarily absent therefrom, or that she would ever again come within its limits or jurisdiction, notwithstanding the defendant’s statement that he “thought he could get the witness;” and the trial judge did not abuse his discretion in overruling the motion for a continuance. See Fudge v. State, 18 Ga. App. 312 (89 S. E. 374), where it was held: “In the absence of evidence affirmatively showing that the witness who was said to be in Florida was only temporarily beyond the limits of this State, or tending to show that he would probably be present at the next term of court, the trial judge, in overruling the motion for a continuance, did not abuse the discretion vested in him.”

The court gave full instructions as to the presumption of innocence and the doctrine of reasonable doubt, and there is no merit in the 7th ground of the amendment to the motion for a new trial, complaining of the failure “to charge the jury the law with reference to the burden of proof in connection with his charge on the presumption of innocence.” “An explicit and comprehensive charge on the subject of reasonable doubt, wherein the jury are instructed in effect that if after considering the entire ease they should have a reasonable doubt of the defendant’s guilt it is their duty to acquit, sufficiently informs the jury that the ■burden is on the State to prove the defendant’s guilt.” Thomas v. State, 129 Ga. 419 (4) (59 S. E. 246). See also Pritchett v. State, 18 Ga. App. 737 (90 S. E. 492); Robinson v. State, 18 Ga. App. 394 (89 S. E. 434).

There is no merit in the 9th ground of the amendment to the motion for a new trial, complaining of the failure of the court to instruct the jury “as to the credibility of the witness and the weight of the evidence . . , to the effect that if there are conflicts in the evidence, material conflicts, conflicts about material matters, it is the duty of the jury to reconcile the same as to make all witnesses speak the truth and not to impute perjury to any one, but if [after] an honest effort to so reconcile the evidence they can not do it, it is the duty of the jury to believe that witness or those witnesses who have the best means of knowing the facts about which they testify and the least inducement to swear falsely, provided they be of equal credibility.” There was no' timely written request for any specific instructions along this line; and in addition to this fact, it appears that but one witness was sworn for the State, and that no evidence was introduced in behalf of the defendant, who made a statement denying his guilt, and that the court fully instructed the jury as to the weight and value they might attach to the defendant’s statement.

The remaining special grounds of the motion for a new trial are without merit and do not require special reference. The evidence authorized the verdict, and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

George and Luke, JJ., contra.


text:
    8748.
    Powell v. City of Cairo.
    Decided June 13, 1917.
    Petition for certiorari; from Grady superior court—■ Judge Worrill presiding. March 8, 1917.

      J. Q. Smith, S. P. Gain, for plaintiff in error.

      J. S. Weathers, contra.
   George, J.

Under the decision in Barlow v. Americas, 146 Ga. 805 (92 S. E. 643), the municipal ordinance under which the plaintiff in error was tried arid'convicted is void; and the court erred in overruling the certiorari, the validity of the ordinance being directly attacked in the petition for certiorari.

Judgment reversed.

Wade, G. J., and Lulce, J., concur.


text:
    8751.
    ALLEN v. THE STATE.
    There was evidence authorizing a conviction of manslaughter.
    Decided June 13, 1917.

      Indictment for murder—conviction of- manslaughter from Bleckley superior court—Judge Graham. March 12, 1917.

      M. H. Boyer> for plaintiff in error.

      W. A. Wooten, solicitor-general, contra.
   Wade, C. J.

The motion for a new trial is based upon the general grounds only, and it is insisted in the brief of counsel for the plaintiff in error that there was no evidence to authorize a verdict of manslaughter. There was testimony from some of the witnesses for the defendant to the effect that immediately before the fatal shot was fired by the accused, the deceased made a violent assault upon him, seizing him by the collar, choking him, and making threats to kill him. This evidence authorized the submission of the law of manslaughter to the jury, and it was for them to determine whether or not the actual assault made upon the defendant was sufficient to justify the excitement of passion and exclude all idea of deliberation or malice. Duhart v. State, 14 Ga. App. 563, 565 (81 S. E. 813). The evidence authorized the verdict, and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

George and Dulce, JJ., concur.


text:
    8752.
    McGouldrick v. The State.
   George, J.

1. An indictment charging the offense of seduction “by other

false and fraudulent means than by persuasion and promise of marriage” is demurrable when it fails to set forth by what means other tha7i persuasion accompanied by promise of marriage the alleged seduction was accomplished. Langston v. State, 109 Ga. 53 (35 S. E166).

2. The indictment charged a married man with the offense of seduction, alleged to have been committed upon a virtuous unmarried female, fourteen years and eleven months old, by other false and fraudulent means than by promise of marriage, to wit, by falsely and fraudulently representing to the female as follows: “I won’t hurt you, you needn’t be afraid of any trouble, nothing will happen to you, you can trust me;” thereby inducing the girl to have sexual intercourse with him. The girl was alleged to be on the closest terms of intimacy with him and the members of his family, often visiting his family and having the liberty of his home, but it did not appear that any other confidential relationship existed between him and his alleged victim. The accused demurred generally, and by timely special demurrer called in question the sufficiency of the allegation as to the “other false and fraudulent means” by which the alleged- seduction was accomplished. The general demurrer was properly overruled, since the indictment sufficiently charged the statutory offense of adultery and fornication; .but the court erred in overruling the special demurrer. Langston v. State, supra; O’Brien v. State, 109 Ga. 51 (35 S. E. 112) ; Disharoon v. State, 95 Ga. 351 (22 S. E. 698); Locke v. State, 3 Ga. App. 534. The judgment of the court, below will therefore be affirmed, with direction that the special demurrer be sustained.

Decided June 13, 1917.

Indictment for seduction; from Chatham superior court—Judge Meldrim. April 2, 1917.

Osborne, Laiorence & Abrahams, for plaintiff in error.

Walter 0. Hariridge, solicitor-general, contra.

Judgment affirmed, with direction.

Wade, O. J., and Luhe, J., eoneur.


text:
    8753.
    STOCKTON v. THE STATE.
    The rule that proof of general good character of a witness is admissible to sustain him where an attempt has been made to impeach him by proof that he has made previous contradictory statements as to matters relevant to his testimony and to the case (Penal Code of 1910, § 1052; Civil Code, § 5881) does not apply where the only attempt to show such previous statements of the witness is by the statement of the defendant on the trial Of a criminal ease. The court in this ease erred in admitting testimony to show the good character of the witness for the State.
    Decided June 13, 1917.
    Indictment for misdemeanor; from Muscogee superior court— Judge Howard. March 30, 1917.

      George 0. Palmer, for plaintiff in error.

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

1. Though a witness whom it is sought to impeach by “disproving the facts testified to by him” can not be sustained by proof of general good character (Bell v. State, 100 Ga. 78, 27 S. E. 669), it is provided by section 1052 of the Penal Code of 1910 (Civil Code, § 5881) that he may be thus sustained where an effort has been made to impeach him by proof of contradictory statements previously made by him “as to matters relevant to his testimony and to the case;” but, as further provided by that section, “before contradictory statements can be proved against him (unless they are written statements, made under oath, in connection with some judicial proceedings), his mind should be called with as much certainty as possible to the time, place, person, and circumstances attending the former statement,” etc.

(a) Before making his statement to the jury a prisoner is not sworn, and he is not subject to cross-examination; and while the jury may believe his statement, in whole or in part, in preference to the sworn testimony in the case, and are authorized to give it just such weight as they think proper (Penal Code, § 1036), the statement is not evidence in a technical sense. Dixon v. State, 12 Ga. App. 17, 18 (76 S. E. 794); Roberson v. State, 12 Ga. App. 102 (76 S. E. 752). Hence, where the only attempt to show contradictory statements previously made by a witness for the State “as to matters relevant to his testimony and to the case” is by assertions of the defendant himself, in his statement to the jury, the contradictory statements are not so “proved” against the witness as to open the way for the admission of testimony showing the good character of the witness, in order to sustain him.

(b) Even where the impeachment of a witness is attempted by competent proof of contradictory statements previously made by him, it must appear that the contradictory statements referred to “matters relevant to his testimony and to the ease.” Proof as to contradictory statements made in regard to some matter not material in determining the guilt or innocence of the accused, or the correctness, weight, or value of material testimony then being delivered by the witness attacked, does not afford a sufficient basis for the admission of evidence to sustain the witness by proof of-his general good character.

(c) In this ease the trial judge allowed the State to introduce testimony as to the good character of the sole witness for the State, over the objection of the defendant, when there had been no attempt to show that the witness had previously made statements in conflict with and contradicted by his testimony delivered at the trial, except by the assertion to that effect.made by the defendant in his statement to the jury; and furthermore, the alleged contradictory statement previously made did not touch upon any matter relevant to the testimony of the witness or to the case on trial against the accused. The witness denied on the trial that he had told the defendant that if the latter “had anything to say about it” (presumably his arrest on the charge preferred against him), he would “lock him up.” The defendant in his statement said: “He [this witness] threatened to lock me up once before, when I walked up where he had a negro under arrest.” Even conceding that the assertion by the defendant amounted to proof of a contradictory statement by the witness, since he declared that the officer had threatened to lock him up “once before” (from which it might be inferred that he was then alleging that the officer had threatened to lock him up on the last occasion referred to), it does not appear that the alleged previous statement of the witness was material in determining the guilt of the defendant, or the credibility of the witness himself. The trial judge therefore erred in admitting testimony to show the general good character of the witness.

3. The remaining grounds of the motion for a new trial need not be passed upon, as they are either without any substantial merit, or relate to matters which can scarcely recur on another trial.

Judgment reversed.

George and Lulce, JJ., concur.


author: Geobge, J.

text:
      8754.

    Johnson v. The State.
    Decided June 13, 1917.
    Accusation of sale of liquor; from city court of Wrightsville— Judge Blount. February 14, 1917.

      Faircloth & Olaxton, for plaintiff in error.

      W. G. Brinson, solicitor, contra.
   Geobge, J.

The credibility of a witness is a matter for the jury. The evidence was sufficient to authorize the verdict of guilty, and the'court did not err in.overruling the motion for new trial based upon the general grounds only.

Judgment affirmed.

Wade, O. J., and Lulce, J., concur.


text:
    8759.
    Stepney v. The State.
    Decided June 13, 1917.
   Wade, O. J.

The jury, who are the final judges of the credibility of witnesses (Smith v. State, 15 Ga. App. 713, 715, 716 (84 S. E. 159), and cases there cited), having, as appears from their verdict, accepted as true the evidence of the sole witness for the State, which clearly established the defendant’s guilt, the court did not err in refusing a new trial on the ground that the verdict was contrary to law and the evidence, and without evidence to support it.

Judgment affirmed.

George and Lulce, JJ., concur.

Accusation of sale of liquor; from city court of Sparta—Judge Moore. February 14, 1917.

B. H. Lewis, for plaintiff in error.

B. L. Merritt, solicitor, contra.


text:
    8771.
    Pritchett v. The State.
    Decided June 13, 1917.
    Accusation of gaming; from city court of Floyd county;—Judge Nunnally. April 5, 1917.

      J. W. Ewing, Benny & Wright, for plaintiff in error.

      James F. Kelly, solicitor, contra.
   Wade, C. J.

1. There was direct evidence to support every material allegation made in the indictment, and therefore this court is without authority to set aside the verdict of the jury based thereon.

2. The defendant being on < trial for gaming, the court did not err in admitting testimony as to the reputation as' a gambling place of the room where the evidence of the State’s witness placed him, and where he admitted he was at the time the alleged crime was committed.

Judgment affirmed.

George and Luke, JJ., concur.


text:
    8772.
    Calloway v. The State.
    Decided June 13, 1917.
    Accusation of carrying pistol without license; from city court óf Albany—Judge Clayton Jones. April 10, 1917.

      B. J. Bacon, B. H. Ferrill, for plaintiff in error.

      Oruger WestbrooTc, solicitor, contra.
   George, J.

1. The court did not err in admitting the evidence of the witness Collins, set out in ground 4 of the amendment to the motion for new trial, over the objections urged thereto. Certain portions of the evidence may have been objectionable, but the objection was made to it as a whole, and some of it was both relevant and material.

2. The court did not err in overruling the objections to, and in admitting, the testimony of the witness Sauls complained of in the 5th ground of ' the amendment to the motion for new trial.

3. The- evidence was sufficient to warrant the conviction of the accused, and the court did not err in overruling the motion for new trial.

Judgment affirmed.

Wade, G. J., and Luke, J.‘ concur.


text:
    8775.
    Moore v. The State.
    Decided June 13, 1917.
    Indictment for robbery; from Crisp superior court—Judge Crum. March 31, 1917.

      Pearson ETlis, for plaintiff in error.

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

1. Upon the trial of one indicted for and convicted of the offense of robbery by sudden snatching, as defined in section 148 of the Penal Code (1910), it was error, requiring a new trial, for the court to instruct the jury as follows: “If you should be of the opinion, beyond a reasonable doubt, that the defendant did take from the person of James Sneed [the prosecutor] the money, or any part thereof, that is described in this bill of indictment,' or the tobacco or any part thereof described in this bill of -indictment, and carry the same away with the intent to steal the same, and without his consent, then you would be authorized, and it would be your duty, to find the defendant guilty.”

2. In order to constitute the offense of robbery by sudden snatching, an element of force is necessary. In order to constitute the offense of larceny from the person, the property must be wrongfully, fraudulently, and privately taken and carried away. The foregoing excerpt from the charge of the court leaves out of consideration the element of force involved in robbery by sudden snatching, and is an incorrect . statement of the law.

3. The instruction quoted above was especially harmful in view of the defendant’s contention at the trial that if any offense was committed, it was larceny from the person. The evidence upon which the State relied for a conviction of the offense of robbery by sudden snatching was very slight, and strongly indicated larceny from the person.

4. The court erred in overruling the motion for a new trial.

Judgment reversed.

‘Wade, O. J., and Luke, J., concur.


text:
    8786.
    CAMPBELL v. THE STATE.
    1. Where, the father of an unborn child deserts the mother, and, after the birth of the child, persists in the abandonment, leaving the child in a dependent condition, conviction of the offense defined in section 116 of the Penal Code of 1910 is proper. Bull v. State, 80 Ga. 704 (6 S. E. 178); Moore V. State, 1 Ga. App. 502 (2) (57 S. E. 1016).
    2. If the father wilfully and voluntarily abandoned the mother before the birth of his child, and continued the abandonment after 'the birth of the child, leaving it dependent on the mother or others, the offense ,was complete. Daniels v. State, 8 Ga. App. 469 (2) (69 S. E. 588).

      3. The evidence authorized the conviction of the accused, and the court did not err in overruling the motion for a new trial, based on the general grounds only.
    Decided June 13, 1917.
    Accusation of abandonment of child; from city court of Baxley —’Judge Sellers. December 30, 1916.

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

      G. H. 'Parker, solicitor, contra.
   George, J.

The offense of abandonment, as defined in section 116 of the Penal Code of 1910, consists of two elements,—separation from the child, and failure to supply its needs. The offense is not complete until there is a conjunction of these two essential elements. Mere absence from one’s child is not of itself a criminal offense. The crime of abandonment begins and continues as long as there is a failure of the father to perform his parental duties in administering to the needs of the child and the consequent dependence of the child. Compare Phelps v. State, 10 Ga. App. 41 (72 S. E. 524). It is earnestly insisted by able counsel for the plaintiff in error that the verdict of guilty is without evidence to support it, and" is therefore contrary to law. The case against the plaintiff in error rests upon the evidence of the mother of the infant. Without cause he abandoned the mother two months before "the birth of the child. The child was born on September 20, 1916, and the warrant for his arrest was sworn out on October 2, 1916, or twelve days after the birth of the child. The child possessed no property. It was in good health, and lived from the breast of the mother. Counsel contends that the mother and prosecutrix was too hasty and acted too quickly, and before any need or necessity arose, demanding the attention of the father. He lived, in the same community with the mother and the child, and was not requested to supply food or clothing for the child. The trial of the case occurred on'November 6, 1916, and while the .conduct of the accused subsequent to the filing of the accusation was not a proper matter for the jury, it is significant that he exercised his legal right and failed to make any statement in his behalf. If, after the filing of the accusation, he had administered to the necessities of the child, his contention urged upon this court would be entitled to more consideration. Counsel overlooks the essential and controlling facts in the case. Wé bring nothing into the world, literally, so far as food, shelter, and clothing are concerned. The unnamed infant referred to in the indictment was no exception to the rule. It needed food, clothing, and shelter; it had to depend upon its mother for its food, its clothing, and its shelter, because it had no. property of its own. Neither good morals nor the laws of this State require that the father should be invited or requested to administer to the needs of his dependent child. The child is, in law, dependent-upon the father for its food, shelter, and clothing, and it is the legal duty of the father to provide them. If the, child is fed at the mother’s breast, and if the mother be abandoned by the father .prior’ to the birth of the child, and if this abandonment of both the mother and the child continue after the birth, the child is abandoned by the father. The fact that the mother supplied the food, shelter, and clothing is no legal defense to an accusation against the father under section 116 of the Penal Code. Under' the undisputed facts in this case the jury were authorized to find that the father wilfully and voluntarily abandoned his child; and certainly the child was dependent upon the father for food, clothing, and shelter. This court is not disposed to relieve him from the just condemnation of the law upon the assumption that a child, during the first twelve days of its life, does not require shelter and clothing.

Judgment affirmed.

Wade,-C. J., and Lulce, J., concur.


text:
    8787.
    DURRENCE v. THE STATE.
    1. A conviction of seduction was authorized by the evidence.
    2. No harm to the accused appears from a ground of the motion for a new trial which complains of the action of the trial judge in holding that one of the panel of jurors put upon the accused was disqualified, where it does not appear from any recital in that ground or elsewhere in the record that the juror was not in fact disqualified.
    3. There was evidence which authorized the jury to infer that the indictment was found and filed within the period prescribed by the statute of limitations.
    Decided June 13, 1917.
    Indictment for seduction; from Tattnall superior court—Judge Sheppard. March 20, 1917.

      R. H. Elders, for plaintiff in error.
    TF. F. Slater, solicitor-general, contra.
   Wade, C. J.

The prosecutrix testified that she and the accused were “engaged to marry” when he first had sexual intercourse with her, and had been engaged for some time before it occurred, and that she yielded to him because she “loved him and he promised to marry” her. There being, according to this testimoney, a bona fide existing and virtuous engagement to marry, the jury were authorized to infer that the illicit intercourse was not a purely meretricious transaction, notwithstanding the further testimony of the prosecutrix that “He told me he would marry me if I got into any trouble, and that he loved me, and I told him that I loved him,” and “I agreed to it because I loved him and thought he loved me, and because he said if he got me a baby that he would marry me, and that is why I let him do it.” “To accomplish sexual intercourse with a virtuous woman, pending a virtuous engagement to marry her, may be seduction, though consent be obtained without other persuasion than that which is implied (considering the past courtship and the present relation of the parties) in proposing the intercourse and repeating the promise of marriage.” Wilson v. State, 58 Ga. 329. See also Cherry v. State, 112 Ga. 871 (38 S. E. 341); O’Neill v. State, 85 Ga. 408 (11 S. E. 857); Disharoon v. State, 95 Ga. 351 (22 S. E. 698); Boyett v. State, 16 Ga. App. 150, 153 (84 S. E. 613). “Intercourse brought about by promise of marriage only, with no aid from persuasion [italics ours] or other false and fraudulent means, will not constitute the offense of seduction.” O’Neill v. State, supra. But “a promise of marriage which a woman believes to be made in good faith, and made as a climax to a long course of wooing, when the man has fully captured the heart of the woman, and she hearkens to the voice of love and yields to her lover because she trusts him, implies persuasion of the strongest character.” Woodard v. State, 5 Ga. App. 451 (63 S. E. 575). See also Jones v. State, 90 Ga. 616 (16 S. E. 380). The indictment in this case charged the accused with committing the crime of seduction “by persuasion and promises of marriage” only. The evidence authorized the verdict, and there is no merit in the general grounds of the motion for a new trial.

The 4th ground of the amendment to the motion for a new trial complains that after a panel of 48 jurymen was put upon the defendant and he had accepted it to strike from, the court, upon information that one of the said jurymen-was related to the defendant, and without hearing any evidence upon, the question, declared the juryman to be disqualified, and ordered that he be stricken from the list, over objection of the defendant and his counsel. It does not appear, from any recital in this ground of the motion for a new trial or elsewhere in the record, that the juror stricken from the panel by the court was not in fact disqualified; and therefore no harm to the defendant is shown, and this ground of the motion is without merit, the presumption being that the act of the trial judge was authorized, -and the record further showing that "counsel for the defendant stated that from what he had heard the said juror was related to the defendant in the ninth degree, but no closer, if that close.” See Smith v. State, 2 Ga. App. 574 ( 59 S. E. 311).

There is no merit in the 5th and sole remaining ground of the amendment to the motion for a new trial. There was testimony from which the jury were authorized to infer that the crime was committed within four years next preceding the finding of the indictment (Penal Code of 1910, § 30), and it was for the jury to determine whether this evidence was sufficient to show that the crime was committed within the period of limitation fixed by the statute, to their satisfaction and beyond a reasonable doubt.

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

Judgment affirmed.

George and Luhe, JJ., concur.


author: Geoege, J.

text:
    8791.
    McCrary v. The State.
   Geoege, J.

1. The trial judge’s approval of the grounds of the motion for a new trial which complain of the failure of the court to instruct the jury that the burden was upon the State to prove that the hog alleged to have been stolen was in fact stolen, and of the refusal of the court to comply with a written request for such an instruction, is coupled with an explanation which in effect disapproved them. He certified that he did in his general charge fully and fairly instruct the jury that .the burden was upon the State to establish the corpus delicti beyond a reasonable doubt. The charge given is not in the record, and this court is unable to say that the trial court erred in the -charge or in the refusal to give the instruction requested.

2. The corpus delicti may be established by circumstantial evidence as well as by positive testimony, and the evidence in the present record, although weak, is sufficient to'sustain the verdict.

Decided June 13, 1917.

Indictment for larceny of hog; from Talbot superior court—• Judge Howard. April 14, 1917.

J. J. Bull & Bon, for plaintiff in error.

C. F. McLaughlin, solicitor-general, contra.

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

Judgment affirmed.

Wade, O. J., and Luké, J., concur.


text:
    8794.
    Boyd v. The State.
    Decided June 13, 1917.
    Conviction of larceny from house; from Chatham superior court —Judge Meldrim. April 2, 1917.

      Oliver & Oliver, for plaintiff in error.

      Walter 0. Hartridge, solicitor-general, contra.
   Wade, C. J.

The verdict in this ease has been approved by the present able trial judge who passed upon the motion for a new trial, based upon the general grounds alone. Upon a careful review of the record it appears that the inference of the defendant’s guilt is legally deducible from the circumstances in proof, and therefore this court is without authority to set aside the finding of the jury.

Judgment affirmed.

George and Luke, JJ., concur.


text:
    7606.
    Central of Georgia Railway Company v. Stacer.
   Wade, C. J.

1. The petition alleged that the defendant railway company maintained a “sharp and dangerous curve” in its track, and that while the plaintiff’s husband, a passenger on a certain train of the defendant, was on the platform of the ladies’ coach of the train and’ in the act of entering the coach, on his return from the smoking-car, where he had gone to obtain information from the conductor touching a mileage-boolc issued to him by an agent of that company, “the said coach struck the sharp and dangerous curve above mentioned, violently and at a reckless and dangerous rate of speed, with the result that said coach was given a sudden and violent jerk and' lurch,” and he was thrown from the train and was instantly killed. The description of the curve in the track as “sharp and dangerous” was objected to by special demurrer insisting that these words were too indefinite, either to support an inference of negligence in maintaining a curve of that character, or to put the defendant on notice. The court erred in overruling this demurrer, calling for the particulars constituting the alleged negligence, though properly overruling the general demurrer. See Blackstone v. Central Ry. Co., 105 Ga. 380 (31 S. E. 90) ; Miller v. Merchants & Miners Transportation Co., 115 Ga. 1009 (42 S. E. 385) ; Louisville & Nashville Railroad Co. v. Barnwell, 131 Ga. 791 (63 S. E. 501). The remaining special grounds of the demurrer are without substantial merit.

Decided June 14, 1917.

Action for damages; from city court of Millen—Judge Proctor presiding. May 30, 1916.

Sajfold & Jordan, for plaintiff in error.

Oliver & Oliver, contra.

2. In the absence of more precise allegations as to the curve in the track maintained by the railroad company, and the existing facts connected therewith which made said curve “dangerous” as alleged, the petition should have been dismissed. The error of the court in overruling the special demurrer as to this act of negligence made all that followed nugatory, and it is unnecessary to discuss any other question presented by the assignments of error.

Judgment reversed.

George and Luke, JJ., concur.


text:
    7818.
    Carr v. Stokely.
    Decided June 14, 1917.
    Rehearing denied June 27, 1917.
    Complaint—appeal; from Cobb superior court—Judge Patterson. July 31, 1916.
    G. M. Bansom and E. J. Carr were sued in a justice’s court on their joint promissory note dated January 7, 1913, and due twelve months after date. Carr filed a'plea, in which he alleged, that he was merely a surety on the note; that he signed it as surety at the request of Bansom and the payee (the plaintiff), without reward or value; that in the early part of the year 1914 he agreed with Bansom to extend the time and use of his name as surety for one year after the note was due, the note being one year past due; that he was never notified by the.plaintiff that the note was past due and .unpaid, or to come forward and pay it; that about the first of September, 1914, he told the plaintiff that when the note became due the plaintiff must proceed to make the money or release him, and that he would not stay upon the note any longer after it became due, and the plaintiff then promised him to do so; that in March, 1915, when he asked if the plaintiff had got the money on the note, the plaintiff said “No,” and told him that he was not going to look to him for the money, that he (Carr) had not received anything of value for the signing of the note, and the plaintiff was not holding him liable on it, and was not going to let him lose anything, and was not going to sue Eansom, the principal on the note. On the hearing of the case on appeal in the superior court Carr amended his plea and alleged, that on January 7, 1915 (?), the time the note matured, Eansom was solvent and the note could have been collected out of him, but the plaintiff failed to proceed as he promised to do, and this defendant, relying on Eansom’s promise to collect the note, did not apply his legal remedies; which he intended to do and would have done but for the promise of the plaintiff to proceed to make the money immediately when the note became due; that Eansom is insolvent, and, by reason of the plaintiff’s failure to comply with his.promise, this defendant was exposed to • a greater degree of loss by reason of his suretyship; that the plaintiff’s statement that he would not sue Eansom, and that he was not holding this defendant responsible, misled, deceived, and disarmed this defendant, and this defendant did not proceed as the law provides in cases of surety-ship, which he would have done but for the statement of the plaintiff.
   Wade, C. J.

The plea as amended set up no valid defense, and the court did not err in striking it, and in thereafter directing a verdict in favor of the plaintiff.

Judgment affirmed.

George and Luke, JJ., concur.

The court struck the plea, on motion of the plaintiff, on the ground that it presented no legal defense, and then directed a verdict for the plaintiff.

Joe Abbott, for plaintiff in error. J. J. Northcutt, contra.


text:
    7897.
    Atlantic Coast Line Railroad Co. v. Burroughs.
   Wade, C. J.

1. The error assigned in the bill of exceptions, upon the overruling of the special demurrer raising the objection “that certain and. particular officers, agents, and. employees of the defendant company who it is alleged had knowledge of the facts set forth in the petition are not named or otherwise described, so as to inform this defendant who said officers, agents, and employees were,” does not definitely ap-pear to be insisted upon in the brief of counsel for the plaintiff in error. The. point has, however, been precisely .ruled by the Supreme Court. “If a declaration alleges with sufficient specification negligence on the part of the defendant and its agents or employees, and in what such negligence consisted and when it occurred, it is not necessary to set out the names of the particular agents or employees alleged to have committed it." South Ga. Ry. Co. v. Ryals, 123 Ga. 330 (51 S. E. 428). See also Pierce v. Seaboard Air-Line Railway, 122 Ga. 664 (2) (50 S. E. 468) ; Georgia Engineering &c. Co. v. Horton, 135 Ga. 58 (2) (68 S. E. 794).

Decided June 14, 1917.

Action for damages; from city court of Savannah—Judge Freeman. October 3, 1916.

From the petition it appears, that Thirty-third street and Thirty-fourth street in the city of Savannah are crossed at right angles by the right of way of -the defendant railroad company, on which are three parallel lines of tracks, with paths and private ways on and between them along the right of way, which for more than twenty years have been„used by pedestrians; that this part of the city is thickly settled, and a-great number of people use the paths on the right of way and the path crossing at Thirty-fourth street, where there is a'regularly established path across the right of way; "and these facts were and are known to the railroad company, its agents and. employees;” that the plaiiitiff, in going to her work, went upon the right of way at Thirty-third street, and, as she was walking southwardly towards Thirty-fourth street, in the path between the middle and the westerly track, a freight-train-going north on the middle track passed on her left, making considerable noise and attracting her attention so that an approaching shuttle train back of her on the westernmost track did not attract her attention and she did not look behind; that in order to avoid the freight-train she stepped upon the -westernmost track, on cross-ties east of the easternmost rail, and walked down the track in this manner towards Thirty-fourth street, and as she turned to cross the track at Thirty-fourth street she was struck by the shuttle train and injured in a manner described. It is alleged, that the train that struck her was without a fireman to keep watch for pedestrians on the right of way so used as a path; that the engineer of the train did not ring any bell or blow any whistle; that if the fireman had been on the engine he could have seen the plaintiff when she got upon the track and as she was walking down the track, which was for a period of three or four minutes; that he would have had ample opportunity to stop the train and avoid striking her, for she was in plain view of any one looking from the left side of the engine; and that it was the duty of the defendant to have a fireman on this train; that the defendant had no watchman on the train or the tracks to look out for pedestrians. It is alleged that the plaintiff’s injuries were occasioned by the negligence of the defendant: (a) in failing to have a fireman on the engine, who could have maintained a lookout on the left side for pedestrians in the position of the plaintiff; (6) in not anticipating pedestrians on the tracks at the place mentioned and the place where the plaintiff was; (c) in not anticipating the presence of pedestrians on the track where the plaintiff was and in failing to ring a bell, blow a whistle, or sound a warning as the train approached; (d) in not keeping a watchman stationed at that place to warn pedestrians of the approach of trains, the defendant being bound in law to anticipate the presence of pedestrians at that place; (e) and in the failure of the engineer to stop the engine and thereby avoid striking the plaintiff.

2. In view of the allegations in the petition as to the frequent use of the railroad-track by pedestrians as a pathway at the particular place where the injury occurred, and that this use had extended over a long period of time with the knowledge of the railroad company, its agents and employees, it would be for determination by a jury whether or not the use of the pathway was such as would require the company to anticipate the presence of pedestrians on the track, and, if so, whether the company exercised ordinary care to avoid injury to the plaintiff on the track at that place. See Bullard v. Southern Railway Co., 116 Ga. 644 (43 S. E. 39) ; Shaw v. Georgia Railroad, 127 Ga. 8, 11, 12, 13 (55 S. E. 960); Atlantic Coast Line Railroad Co. v. Adams, 7 Ga. App. 146 (66 S. E. 494) ; Williams v. Southern Railway Co., 11 Ga. App. 305 (75 S. E. 572). The trial judge therefore did not err in overruling the general demurrer to the petition.

Judgment affirmed.

George and Luke, JJ., concur.

The defendant demurred generally and specially, and, to meet the special ground of demurrer stated in the foregoing decision, the allegation that the facts stated as to the use of the right of. way by pedestrians were known to the railroad company, “its agents and employees,” was amended by adding: “that is, the agents and employees of the railroad company in charge of the operation of said shuttle train, and all of the agents and employees of said company having charge of the roadbed and right of way of said company at this place, and all of the said agents and employees of said railroad company having charge of the operation of trains of said company over said right of way. The names of these agents and employees this plaintiff does not know.”

■ P. W. Meldrim, for plaintiff in error. D. 8. Atkinson, contra.


text:
    7908.
    Floyd County v. Oswalt.
    Decided June 14, 1917.
    Action for damages; from city court of Floyd county—Judge Nunnally. October 17, 1916.

      Eubanks & Mebane, for plaintiff in error.

      McHenry & Porter, contra.
   Wade, C. J.

The motion for a new trial was based upon the general grounds only. There was evidence which, coupled with distinct admissions made in' the plea of the defendant, sufficiently supported the material allegations of the petition, and therefore the finding of the jury is' conclusive.

Judgment affirmed.

George and Lulce, JJ., concur.


author: Luke, J.

text:
    8160.
    Fowler-Flemister Coal Company v. Evans.
    Decided June 14, 1917.
    Action on contract; from Baldwin superior court—Judge Park. November 15, 1916.

      D. 8. Sanford, Allen & Pottle, for plaintiff.

      Hines & Vinson, for defendant.
   Luke, J.

1. The court did not err in refusing to permit the defendant’s witness to answer the following question: “That cupping or pulling apart was not the result of any negligence on your part;” the court stating that the witness could testify to the facts, but could not testify to his conclusion that his conduct was or was not negligent.

2. When the charge of the court is considered as a whole, the instructions complained of are not subject, to the criticisms urged in the motion for a new trial. The charge was full and fair.

3. The evidence authorized the verdict, which has the approval of the trial judge.

Judgment affirmed.

Wade, G. J., and George, J., concur.


text:
    8192, 8193.
    Gray v. Georgia Southern and Florida Railway Company ; and vice versa.

    Decided June 14, 1917.
    Action for damages; from Crisp superior court—Judge George. August 14, 1916.

      Whipple & McKenzie, K. M. Davis, for plaintiff.

      J. E. Kail, Guyton Pwrhs, G. J. Bloch, Kugh Lasseter, for defendant.
   Luke, J.

1. Where, on the trial of an action against a railroad company, for the death of the plaintiff’s husband, the evidence for the plaintiff showed that her husband was on a passenger-train of the defendant, concealed and stealing a ride thereon, and that the last person to see him was a companion who was also concealed on the train, stealing a ride, but who was discovered and carried into the train, and that the body of the plaintiff’s husband was thereafter found by the railroad-track, with a gunshot wound in his head and other bruises on his person, and there was no other account of how he came to his death, no presumption of negligence against the railroad company, under section 2780 of the Civil Code of 1910, arose in favor of the plaintiff.

2. The evidence demanded a verdict -in favor of the defendant, and the court did not err in so directing.

3. The judgment in favor of the defendant in error in the main bill of exceptions being affirmed, the cross-bill of exceptions is dismissed.

Wade, 0. J., and Jenkins, J., concur.


text:
    8272.
    Morris v. Moore.
    Decided June 14, 1917.
    Certiorari; from Fulton superior court—Judge Bell. October 6, 1916.

      Dodd & Dodd, for plaintiff in error. Gober & Jachson, contra.
   Luke, J.

Upon the petition for certiorari and the answer of the trial judge the court did not err in Sustaining the certiorari.

Judgment affirmed.

Wade, O. J., and George, J., concur.


author: Luké, J.

text:
    8279.
    Georgia Railway and Power Company v. Pounds.
   Luké, J.

1. Where section 5751 of the Civil Code (1910) is applicable (as in this case, by agreement between both parties, plaintiff and defendant), it is reversible error for the court to charge the jury, as follows: “The existence of a fact testified to by one positive witness is to be believed rather than [that] such fact did not exist because many witnesses who had the same opportunity of observation swear that they did. not see or know of its having transpired. But this rule does not apply when, parties having equal facilities for seeing or hearing a thing, one swears that it occurred and the other swears that it did not,” without further in the same Connection instructing the jury that in weighing such testimony they should take into consideration the credibility of the witnesses. Southern Ry. Co. v. O’Bryan, 115 Ga. 659 (42 S. E. 42) ; Georgia Ry. &c. Co. v. Wheeler, 141 Ga. 363 (80 S. E. 993); Ware v. House, 141 Ga. 410 (81 S. E. 118); Georgia R. &c. Co. v. Radford, 144 Ga. 22 (85 S. E. 1006).

Decided June 14, 1917.

Action for damages; from DeKalb superior court—Judge Smith. January 22, 1916.

Colquitt & Conyers, for plaintifE in error. Alonzo Field, B. B. Jackson, Westmoreland & Westmoreland, contra.

2. The assignments of error other than that dealt with above are without merit.

Judgment reversed.

Wade, O. J., and George, J., concur.


text:
    8280.
    Georgia Railway and Power Company v. Pounds.
    Decided June 14, 1917.
    Action for damages; from DeKalb superior court—Judge Smith. January 22, 1916.

      Colquitt & Conyers, for plaintiff in error. Alonzo Field, B. B. Jackson, Westmoreland & Westmoreland, contra.
   Luke, J.

This case is controlled by Georgia Railway & Power Co. v. Pounds, ante, 201.

Judgment reversed.

Wade, G. J., and George, J., concur.


text:
    8389.
    Ware v. Ware & Harper.
   George, J.

1. Service of a bill of exceptions upon counsel of record in the case binds all parties represented in the trial court by the counsel served. Acts of 1911, p. 149; § 6164 Park’s Ann. Code. Redman v. Hitchins, 113 Ga. 380 (38 S. E. 819). The assignments of error in the bill of exceptions in this case are sufficient.

2. The defendant admitted the execution of the contract which is the basis of this suit, and filed a plea of fraud in its procurement. The defendant could read and write, and there was no trick, artifice, or fraud practiced upon him which prevented him from reading the contract. The relation. between the parties was that of landowner and real-estate agent employed for the purpose of negotiating a sale of the land. In respect to the services to be rendered by the real-estate agent, a relation of confidence existed between the owner and the agent. In respect to the compensation to be paid to the agent by the owner, the parties dealt at arm's length. There is nothing in the evidence to take this case out of the general rule that parol evidence will not be received to add to, vary, or dispute the plain and unambiguous terms of a written contract.

Decided June 14, 1917.

Action on contract; from Talbot superior court—Judge Munro. December 23, 1916.

A. P. Persons, J. H. McGehee, for plaintiff in error.

Moore & Pomeroy, Perryman & Perryman, contra.

3. Under the undisputed evidence the plaintiffs were entitled to a verdict against the defendant, and the amount was peculiarly a question for the jury. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Wade, 0. J., and Luhe, J., concur.


text:
    8435.
    Adams v. Klasing.
   George, J.

1. This suit was for personal injuries occasioned by the breaking of a flight of steps leading to a house rented and occupied by the plaintiff as a tenant of the defendant. The charge of negligence was that the defendant failed to inspect and repair the steps, and that the steps as originally constructed were attached to the building by a defective piece of timber. From the evidence introduced by the plaintiff it appeared that he had exclusive possession of the rented premises, and had occupied the building for two months prior to the injury. The defective timber supporting the steps, by means of which they were attached to the house, could be discovered only by inspection. The evidence did not disclose when the building or the steps were constructed, nor by whom. The evidence did not authorize the inference that the defendant constructed, or caused to be constructed, either the building or the steps.- So far as appeared, the landlord did not know of the defective construction of the steps. Indeed, the plaintiff did not know of the condition of the steps, and could only have discovered it by special examination. Eeld, that the grant of a nonsuit was proper.

2. The landlord is ordinarily under no duty to inspect the premises while the tenant is in possession, in order to keep informed as to their condition, where the tenant is entitled to and has the exclusive use and possession of the premises. Ross v. Jackson, 123 Ga. 657 (51 S. E. 578).

3. Nor will-the landlord be liable for injury to the tenant on account of the defective construction of rented property which the landlord has not constructed or caused to be constructed. The liability of a landlord for defective construction of a building exists only where the building is erected by him in person or under his supervision or direction. If the building was defectively constructed by a predecessor in title, and the landlord knew, or in the exercise of reasonable diligence could have known, of its improper construction before the tenancy was created, he would be answerable to the tenant for injuries sustained by reason of the failure to put the premises in a safe condition, if the tenant could not have avoided the injury by the exercise of ordinary care.

Decided June 14, 1917.

Action for damages; from Floyd superior court—Judge Wright. January 10, 1917.

Súbanles & Mebane, for plaintiff.

Denny & Wright, for defendant.

Judgment affirmed.

Wade, O. J., and Luke, J., concur.


text:
    8475.
    SAM WEICHSELBAUM COMPANY v. ALLEN.
    The fire-insurance company having, in its answer to the summons of garnishment, admitted indebtedness to the defendant as an individual, and not as head of a family, and no traverse being filed, the court erred in holding that the fund in question, which was the amount due on a policy issued to the defendant in his own name, was not subject to the garnishment; although the insured property had been set apart as an exemption for the benefit of the defendant’s family.
    Decided June 14, 1917.
    Appeal; from Laurens superior court—Judge Kent. January 25, 1917.

      Chappell & Burch, for plaintiff in error.

      R. Bari Camp, contra.
   George, J.

This case originated in a justice’s court, and on appeal was submitted to the judge of the superior court upon an agreed statement of facts, from which it appeared: that the plaintiff in error obtained a judgment in a justice’s court against the defendant, A. 0. Allen, on March 19, 1915, for $87.82 principal, besides interest and costs. Summons of garnishment issued and was- served on the DuQuesne Fire Insurance Company, and the insurance company answered the summons, admitting that it had in hand the sum of $153 belonging to A. -0. Allen, the same being in the form of a check payable to A. 0. Allen. No traverse was filed. A. 0. Allen, on October 27, 1914, as the head of a family, had certain household and kitchen furniture set apart to him as' a special exemption for the benefit of his family. Allen obtained a policy of fire insurance on the property. The policy was issued in the name of A. 0. Allen, and he paid the premium thereon. The household and kitchen furniture so set apart to Allen as the head of a family was destroyed by fire, and he made proof of the loss in his own name, and not as the head of a family. The $153 in the hands of the insurance company was the amount due under the policy. Allen, as the head of a family, filed a claim to the money, and gave bond to dissolve the garnishment, claiming that the said money belonged to him as the head of his family, under the special exemption as aforesaid, and not to him individually, and therefore was not subject to said garnishment. Held, that the answer of the insurance company is an admission of indebtedness to the defendant; and, no travers'e having been filed to this answer, the court erred in entering a judgment finding the money not subject. Davis v. Pringle, 108 Ga. 93 (33 S. E. 815); Booth v. Brooke, 6 Ga. App. 299 (64 S. E. 1103).

Judgment reversed.

1Vade, ■G. J., and Lulce, J., concur.


text:
    8480.
    Adams v. Duvall.
    Decided June 14, 1917.
    Certiorari; from Fuiton superior court—Judge Pendleton. December 19, 1916.
    The plea as amended alleged, in substance, that the defendant, after having taken a course of instruction in pharmacy, believing that he was attending a certain medical college, “a chartered institution authorized by law, and recognized in the medical and pharmaceutical profession in this State and other States, and the medical boards established by law, to be first class, and that its. diplomas would be given recognition without further examination of the graduates receiving the same,” was informed that he was ready to graduate and would be given a diploma on payment of $50 (the amount of the note sued on), and he made this note to the plaintiff; that afterwards" he made inquiries for the purpose of preparing himself for location in other States, and discovered that several months before the issuance of the diploma the said college had ceased to exist, having become insolvent and gone out of business; that it was not recognized and had no standing in law or in the medical 'or pharmaceutical profession, and the diploma was without value to him in any sum; and for these reasons the consideration for the note had failed and it was without consideration.
   George, J.

1. This suit was brought in a justice’s court, upon a promissory note. The plea filed by the defendant set forth no legal defense, and was properly stricken upon demurrer. The judge of the superior court therefore did not err in overruling the petition for certiorari.

2. The motion to award damages, for bringing up the case for delay only, is meritorious, and statutory damages (Civil Code (1910), § 6213) are therefore assessed against the plaintiff in error.

Judgment affirmed, with damages.

Wade, G. J., and Luhe, J., concur.

8. 0. Creme, for plaintiff in error.

McKinnon & Hulbert, contra.


text:
    8528.
    Jacobs' Pharmacy Company v. Georgia Laundry Company.
    Decided June 14, 1917.
    Certiorari; from Fulton superior court—Judge Ellis. January 10, 1916.

      Morris Machs, Belfor & Koplin, for plaintiff in error.

      Holbrooh & Corbett, contra.
   George, J.

There was no error in overruling the oral demurrer to the petition, nor in the admission of evidence. The evidence authorized the verdict, and the judge of the superior court did not err in overruling the petition for certiorari.

Judgment affirmed.

Wade, O. J., and •Luhe, J., concur.


author: Bloodwobth, J.

text:
    7703.
    LIVINGSTON'S PHARMACY v. LEWIS MEDICINE COMPANY.
    It was error to strike the plea as to the defendant’s offer to return to the plaintiff the unsold goods shipped to the defendant under the contract attached to the petition.
    Decided June 14, 1917.
    Complaint; from city court of Savannah—Judge Davis Freeman. July 12, 1916.

      Saussy & 8aussy, for plaintiff in error.

      O’Byrne, Hartridge & Wright, contra.
   Bloodwobth, J.

The A. H. Lewis Medicine Company shipped certain goods to Livingston’s Pharmacy under a contract as follows : ' ’

“Special Agency Offer.
“Date, July 7, 1913.
“The A. H. Lewis Medicine Company, St. Louis, Mo.—Gentlemen: Please ship us by prepaid freight the following goods, subject to conditions hereinafter mentioned:
142 Doz. Nature’s Remedy Tablets at $2.00 per doz.......$284.00
2 Doz. Nature’s Remedy Tablets at $4.00 per doz...... 8.00
1 Doz. Nature’s Remedy Tablets at $8.00 per doz...... 8.00
$300.00
Less 5 per cent, trade discount........................ 15.00
$285.00
Less Lewis Med. Co.’s purchase....................... 100.00
Amount of invoice..............................$185.00
“Window Displays, show cards, etc.,
“1 Window Displays—4 Display Venders.
'“Terms: 2% for cash in thirty days. Nov. 1, 1913, net.
“Not subject to countermand.
“The A. H. Lewis Medicine Company agrees: To. print the purchaser’s name on 10,000 samples or booklets for a house to house distribution in the town of Savannah, Ga., to purchase 500 25 cent boxes at 20 cents each, and to mail same with a special letter advertising the purchaser,, together with other advertising matter, to a list of names and addresses which the purchaser agrees to make up and furnish to the A. H. Lewis Medicine Company, within 10 days from the date of this order. The 25 cent boxes to be mailed are to be invoiced at the regular wholesale prices given on this order, and credit is to be given on the invoice at the rate of 20 cents each, making the net amount of the invoice $185. To make two house-to house distributions at their expense within the next 12 months;*the first distribution to accompany this shipment. To include in this shipment 100 books and samples for counter use imprinted in like manner. To guarantee satisfactory sale of goods within 12 months from commencement of advertising campaign (the period over which the advertising plan, extends), and then, at the option of the purchaser, exchange any unsalable sizes, or buy back at purchaser’s cost.
“The purchaser agrees: To make window displays for at least one week’s duration during each distribution. To wrap the 100 books and samples of Nature’s Kemedy in packages of customers’ purchase. To aid in maintaining a fair selling price on Nature’s Eemedy. To promptly notify distributor when goods arrive and when to make distribution.
“Should there be no distributor in the purchaser’s town, the purchaser agrees to attend, to the distribution at $2.50 per thousand or 25 cents for each 100 pieces.
“Accepted:
“[Signed] The Livingston Pharmacy, Purchaser. City, Savannah. State, Ga.
“The A. H. Lewis Medicine Company,
“E. M. Bray.'
“Attach your label on back.”

Livingston’s Pharmacy failed to pay for the goods at the time . the account was due, to wit, November 1, 1913. Suit was filed and the defendant filed a demurrer and pleas. The case was still pending in court at the July term, 1916, when the defendant offered to amend its plea and answer in part, as follows: “That under the contract made by the plaintiff with the defendant which is attached to the plaintiff’s amended petition, the year expired on August 20, 1914, and promptly this defendant tendered back to the plaintiff all goods on hand being all of the unsold goods described in said contract and the cash for such part of said goods that had been sold, to wit, $8.86 at selling price of same, and- has continued since that time to offer return of the said goods and said money, but the plaintiff has refused and. still refuses to accept said tender.” The court struck all the pleas of the defendant, including the above.

Under the contract, after the expiration of the 12 months allowed for the advertising campaign, the plaintiff agreed to “buy back at purchaser’s cost” the unsold goods. The record shows that plaintiff is a non-resident. With' both parties to the contract already in court, it would be but equitable, proper, and right, under the particular facts of this ease, that defendant be allowed to return to plaintiffs—“sell back”—the unsold goods at cost price. As these unsold goods and the money received for those sold were tendered to the plaintiff promptly after the expiration of the 12 months, and no judgment was prayed for against the plaintiff, the court erred in striking the above portion of the plea. As a new trial is to be granted for the above-mentioned error, it is unnecessary to discuss the other assignments of error in the bill of exceptions.

Judgment reversed.

Broyles, P. J., and Jenhins, J., concur.


author: Bloodworth, J.

text:
    8000, 8427.
    APPERSON v. MUTUAL FERTILIZER COMPANY; and vice versa.

    Judgment at the first term, in a suit on an unconditional contract in writ-' ing, where no defense has been filed, may be rendered in the city court of Ashburn, under the act creating that court, as amended (Acts 1908, p. 111). Where suit was brought in that court on a past-due promissory note, unconditional except as to attorney’s fees, which were not sued for, and the suit included the amount of two like notes, which on their face were, not yet due, but which, it was alleged, became due under a separate written contract on default as to payment of the first note, and the court at the appearance term rendered a judgment for the aggregate amount sued for, reciting that no issuable defense had been filed and that the judgment was rendered on proof submitted, it was not void as to the amount due on the first note, though irregular in including the amount of the other notes; and the court did not err in overruling a motion to set it aside as a whole, made nearly three years after the date of the judgment, and attacking it as entirely void because rendered at the first term.
    Decided June 14, 1917.
    Motion to set aside judgment; from city court of Ashburn— Judge Tipton. December 4, 1916.

      A. 3. Bussey, for plaintiff in error, cited:
    Acts 1906, p. 150; Acts 1908, p. 112, sec. 5; Sanner v. Sayne, 78 Ga. 467, 470; Dye v. Garrett, 771; Searcy v. Tillman, 75 Ga. 504; Welch v. Siggleton, 95 Ga. 519 (2); Park’s Annot. Code, §§ 4358, 5958, 5962; Kelly v. Strouse, 116 Ga. 884.

      John B. Hutcheson, contra, cited:'

      Jewell v. Martin, 121 Ga. 325; Phillips v. Taber, 83 Ga. 572; Shahan v. Myers, 130 Ga. 724; Smith v. Knowles, 12 Ga. App. 715 (2); Latimer v. Sweat, 125 Ga. 477; Pryor v. American Trust &c. Co., 15 Ga. App.
      832 (2); Kellam v. Todd, 114 Ga. 981 (1); Dortic v. Lockwood, 61 Ga. 293 (1); Hollinger v. Reeves, 138 Ind. 363 (L. R. A. 46, 48); Civil Code (1910), § 4854; Haskens v. State, 114 Ga. 837-8; Chapman v. State, 116 Ga. 599; Malsby v. Studstill, 127 Ga. 726; Civil Code (1910), § 5958; Garfield Oil Mills v. Stephens, 16 Ga. App. 660.
   Bloodworth, J.

The Mutual Fertilizer Company brought suit

to the January term of the city court of Ashburn, in 1914, on three promissory notes, the aggregate amount of which was $860.18. Only one of the notes was due when suit was filed, but the plaintiff alleged a separate agreement in writing which stipulated that, should default be made in the payment of any one of the notes when due, then the entire indebtedness should become due and payable. No plea was filed. At the first term of the court the following judgment was taken: “There being no issuable defense filed on oath in the above-stated case, and plaintiff having submitted proof, judgment is rendered by the court in favor of the plaintiff, the Mutual Fertilizer Company, a corporation, and against the defendant, S. M. Apperson, for $861.18, principal, $18.35 interest, and all future interest at rate of 8 per cent., and-attorney’s fees, and-cost of suit.” During the November term, 1916, Apperson made a motion to set aside the judgment, alleging that it was not based on an unconditional contract in writing, and that it was rendered by the court without a jury and for an amount in excess of $200. Section 5 of the act of 1908 (Acts 1908, p. 111) amending the act creating the city court of Ashburn is as follows: “Be it further enacted by the authority aforesaid, that in all civil cases where the principal sum involved does not exceed two hundred dollars, and in all cases where suit is filed upon an unconditional contract in writing, and where no defense is filed at the appearance term, the plaintiff shall be entitled to make out his case and have judgment thereon at the first term, or to have default judgment at said term of court.”

1. The court had jurisdiction of the person and of the subject-matter; and although the judgment was irregular, it was not wholly void. The first note was an unconditional contract as to the principal and the interest, which alone were sued for, there being no attempt to recover attorney’s fees. While the words “attorney’s fees” appear in the judgment, no amount of fees is named, a space appearing where the amount should have been inserted if the pleadings and the proof had authorized a judgment for such fees; and it is not to be regarded as a judgment for attorney’s fees; indeed, no question is raised as to this. No defense being filed, judgment on the unconditional contract contained in the past-due note could properly be rendered at the first term, under section 5 of the act of 1908, quoted above; and the judgment was not invalid as to the principal and the interest due on that note. The motion to set aside the judgment, however, attacks the whole judgment. “A general motion to set aside a judgment as a whole, upon the ground that the judgment is void, when in fact it is only in part void, is so much too broad that it should he overruled.” Smith v. Knowles, 12 Ga. App. 715 (2) (78 S. E. 264); Shahan v. Myers, 130 Ga. 724 (2) (61 S. E. 702). The defendant waited nearly three years before filing his motion, and gave no reason for his delay. Under such circumstances the court did not err in refusing to set aside the judgment.

,2. “A cross-bill of exceptions must be tendered to the trial judge within thirty days from the date of the service of the principal bill of exceptions.” Roberts v. Northwetsern National Life Insurance Company, 143 Ga. 780 (3) (85 S. E. 1043).

Judgment affirmed on main bill of.exceptions. Cross-bill of exceptions dismissed.

Broyles, P. J., and Jenlcins, J., concur.