text:
    522.
    McCAIN v. THE STATE.
    1. A barber who pursues the work of his ordinary calling on the Lord’s day, by shaving the members of a club at a room in the club-house, and receives compensation therefor, violates the Renal Code, §422.
    2. The criminal character of such act is not affected by the fact that the compensation for said work is.not compulsory, but voluntary; nor by the fact that the work is confined to members of the club.
    3. The courts will judicially recognize that shaving by a barber is not a work of necessity permitted by the statute to be done on the Sabbath' day.
    4. The verdict having been demanded by the undisputed evidence, the errors of law complained of were immaterial and harmless.
    Accusation of violating Sabbath, from city court of Floyd county — Judge Hamilton. May 8, 1907.
    Argued July 19,
    Decided July 25, 1907.

      W. J. Nunnally, Denny & Harris, for plaintiff in error.

      W. H. Ennis, solicitor-general, Seaborn & Barry Wright, contra.
   Hill, C. J.

The plaintiff in error was convicted of a violation of the Penal Code, §422. The judgment overruling his motion for a- new trial is brought to this court for review. The undisputed evidence, substantially stated, is as follows: He was a barber pursuing his business and work of his ordinary calling during the week in a shop in the city of Pome. On Sundays he went to the house occupied by the “Elks Club,” and in a room set apart for the purpose he shaved members of the club, receiving therefor whatever the members saw fit to give him. No other persons except members were shaved, and no compulsory charge was made, but the amount paid by the members was twentj^-five cents a shave. It was also shown that some of these members, on account of being engaged all day Saturdat’, could not conveniently get a shave on said day, and, in order to present a decent appearance in attendance at church, they thought it necessary to get a shave on Sundays. It is insisted by the plaintiff in error that tinder this evidence there was no violation of section 422: (1) Because there was no 'consideration demanded for the work. (2) Because the shaving of the members of the club, under the evidence, was a work of necessity. (3) Because the plaintiff in error was not engaged in the work of his usual and ordinary calling at his usual place of business, but the shaving in question was occasional and performed at a private house and confined to the members of the club, who were not able, for reasons stated, to get a shave on Saturday. Error is also assigned to the ruling admitting as evidence a former indictment for the same offense against the plaintiff in error, and the plea of guilty thereon. And also, that the court erred in not instructing the jury that the burden was on the State to show that the act charged was not a work of necessity or charity.

Since colonial days it has been the policy of the State of Georgia to prohibit all persons from using the Sabbath as a day of labor, or from pursuing their ordinary calling on said day. By an .act of the colonial legislature, March 4, 1762, it was provided: “No tradesman, artificer, workman, laborer, or other person whatsoever shall do or exercise any worldly labor, business,- or work of their ordinary callings on the Lord’s day or any part thereof (works of necessity or charity only excepted).” Cobb’s Dig. 853, sec 2. This colonial act is in the exact language of the statute of 29 Charles II, c. 7. Section 422 of the Penal Code is a substantial codification of this act. The terms of the statute are very broad. They not only forbid the pursuit of secular business, but forbid any work of ordinary calling on the Lord’s day, except works of necessity or charity. It makes no sort of difference that the secular business is not carried, on on Sunday at the usual place of business. If the work is that of his ordinary calling, and is occasionally performed by the defendant at a different place, he violates the statute. The law not only closes the business places of secular employment during the Sabbath, hut stops, on said day, work of ordinary calling, whatever that work may be or wherever that work may be done. The purpose of the law is to require cessation from labor, and to set apart one day as a day of rest as essential to the physical and moral well being, not only of the individual, but of society. It can not be doubted that the plaintiff in error, in shaving his customers at the rooms of the club, did pursue the work of his ordinary calling. It was simply a change of . .Aon, but the work was the same as pursued on week days at his place of business. Neither can it be doubted that this work was done by him because of the compensation paid by the members. The fact that the work in question was confined to the members of the club, and was performed in the club-house, may reduce the flagrancy of the offense, but can not alter the express terms of the law. The work on Sundays was possibly not so active and constant as the defendant’s work on week days; still, shaving was the work of his ordinary calling. “Those things that are repeated daily or weekly in the course of trade or business are parts of the ordinary calling •of the man exercising such trade or business.” Reid v. State, 119 Ga. 563, 46 S. E. 837.

The contention of the plaintiff in error, that the work of shaving .the members of the club was a work of necessity, because such . members, by reason of their occupation on Saturdays, could not get a shave, and cleanliness demanded a daily shave, can not be reasonably upheld. While shaving may be regarded as an act of personal cleanliness, desirable to be performed upon the first day as well as upon other days of the week, still this fact does not make shaving necessary or the work of the barber one of necessity. The statute makes no exception in favor of a man who can not shave himself, or who can not conveniently procure some one to shave him on a week day. Many States have statutes expressly prohibiting the opening of barber-shops on Sundays, and expressly declaring that shaving is not an act of necessity. But it needs no decision of the courts or the declaration of the statute to convince men of ordinary intelligence and experience that shaving is not a work of necessity within the meaning of that term as constituting the exception in the statute now under consideration.

We think the court committed an error in permitting the introduction of an indictment against the defendant, and his plea of guilty thereon, for a similar offense; and if there were any doubt, under the uncontroverted evidence in this case, of the defendant’s guilt, such error would be reversible; but in view of the facts of this case, this error was immaterial and harmless.

It is a general rule that the State must affirmatively show that the act of the accused on which a criminal charge is based does not fall within an exception made by thé statute. In this case, however, the business or work of the plaintiff in error was proved.’ The character of such work is peculiarly within the ex. perience and knowledge of all men, and the jury knew as well as . any witness could tell them whether this work was a work of necessity or charity. The court in the charge left it to the jury to say whether the work in question was one of necessity or not, and we think the jury could determine this fact without the opinion of any witness. Indeed it has been held, and we think correctly so, that the court will take judicial notice that the shaving of his customers by a barber is a worldly labor or work done by him in the course of his ordinary calling, and is not within the exceptions of the statute. State v. Frederick, 45 Ark. 347, 55 Am. R. 555.

We are clear that under the undisputed facts of'this case the plaintiff in error was guilty of violating the Penal Code, § 422, and that the evidence demanded the verdict against him. His offense was not a very flagrant violation of the law, but it was a violation. “Opinions may differ, and they really do differ, as to whether abstaining from labor on Sunday is a religious duty; hut whether it is or not, it is certain that the legislature of Georgia has prescribed it as a civil duty,” and makes a violation of this duty a-criminal offense. Hennington v. State, 99 Ga. 399. Judgment affirmed.


source: Caselaw Access Project

author: Russell, J.

license: Public Domain

text:
    523.
    NEWSOME v. THE STATE.
    1. This case is controlled by prior decisions of the Supreme Court, which, in the opinion of this court, are based upon sound reason. No sufficient cause appears for certifying the point involved, to the Supreme Court, •or for asking that court to review and overrule its previous decision Upon the subject.
    2. Exceptions which go merely to the form of the indictment or accusation, if not taken before joinder of issue, are considered to be waived. They can not be reached by a motion in arrest of judgment.
    Accusation of illegal sale of liquor, from city court of Moultrie— Judge Shipp. May 16, 1907.
    Submitted July 19,
    Decided July 25, 1907.

      J. D. McKenzie, A. R. Kline, James Humphreys, for plaintiff in error. W. F. Way, solicitor, contra.
   Russell, J.

The plaintiff in error was convicted on the 16th day of May, 1907, upon an accusation filed that day, in which he was charged with the offense of selling intoxicating liquors in Colquitt county on the 29th day of October, 1907. He waived arraignment, copy of accusation, and list of witnesses, and pleaded not guilty. He did not demur to the accusation. On the trial the evidence showed that he had made a sale of spirituous liquor in Colquitt county on 29th day of October, 1906. He moved the court to direct a Verdict of not guilty, on the ground that the accusation ■alleged a crime at some subsequent day or impossible date, and ■that the accusation was not sufficient,, on account of this date, to .authorize a conviction. The court overruled this motion, and, after •argument and the charge of the court, a verdict was rendered finding defendant guilty. On the same day the defendant made a, ■motion in arrest of judgment, upon the following grounds: First: “Because the accusation, upon which defendant was tried, alleged .and charged that the crime was committed on a day and time subsequent to the day and time of filing the accusation and the trial thereon; the day of filing being May 16,1907, and the day and time .alleged and charged in said accusation being October 29, 1907.” Second: “Because the verdict and judgment is void and of no ■effect, based upon an .accusation charging a crime subsequent, to the date of filing said accusation.” The motion in arrest of judgment was overruled. The plaintiff in error excepts to the refusal to direct a verdict of acquittal, and to the judgment in overruling his motion in arrest of judgment.

The only question in the case is, whether conviction was warranted on the accusation as written. The insistence of the plaintiff in error, that every indictment or accusation, to support a valid •conviction, must charge the crime to have been committed on a definite date previous to the finding of the indictment or filing of the accusation, even though the proof might be any time within, the statute of limitations, is not a new one in this State. Counsel for plaintiff in error recognize this fact, and on that account request that we certify this case to the Supreme Court in order that that court may review and reverse the decisions in McMath v. State, 55 Ga. 303; Jones v. State, 55 Ga. 625; Williams v. State, 55 Ga. 391; Harris v. State, 58 Ga. 333; Johnson v. State, 90 Ga. 444, 16 S. E. 92; Adkins v. State, 103 Ga. 5, 29 S. E. 432; Spencer v. State, 123 Ga. 133, 51 S. E. 294, and other similar cases. If the decision in Adkins v. State, supra, were the last utterance of our Supreme Court upon the point, and if the Supreme Court had not so recently passed upon the question, as in the case of Spencer v. State, we would be inclined, simply on account of the intimation in the Adkins case, to certify the ease to the Supreme Court as requested. Begardless of the decisions in other States, and as to whether the Supreme Court was wrong in basing tlm ‘decisions in the cases of McMath and Jones upon the case of Conner v. State, 25 Ga. 515, 71 Am. Dec. 184, we think that-the date on which the offense is laid is immaterial, unless the defendant, before pleading to the merits, demurred thereto. The defendant must demur before pleading, or else he will be held to waive his right to have the essential elements of time and place stated with the certainty required by the code. In Harris v. State, 58 Ga. 333, Jackson, Judge, delivering the opinion, says: “This court has often held that after arraignment and plea the indictment alleging an impossible day or a day after the bill was found true would be held good, but not where it was excepted to in time on special demurrer' in writing.” In Bailey v. State, 65 Ga. 411, the court held, that an indictment naming neither day nor month was defective and should be quashed on special demurrer before the arraignment, but cited the Harris case and said that the defendant was entitled, if he demanded in time, to have a perfect indictment in form as to the essential elements of time and place, and when he demurred specialty, before arraignment, he ought to have the time-stated with reasonable certainty at least. The Penal Code requires that all exceptions that go merely to the form of the indictment shall be made before trial. If they are not made then, they are held, in contemplation of law, to be waived. Hill v. State, 41 Ga. 484. The case can not be made stronger when an impossible-date is stated than when no date is stated at all; and yet it was held in Phillips v. State, 86 Ga. 427, 12 S. E. 650, and Braddy v. State, 102 Ga. 568, 27 S. E. 670, that a defect in an indictment-in not alleging any date or month when the alleged offense was committed must be taken advantage of before arraignment, and that it is too late after conviction to make the point for the first time. ‘ Judgment affirmed.


author: Powell, J.

text:
    526.
    Williams v. The State.
    Indictment for burglary, from Chatham superior court — Judge Cann. May 3, 1907.
   Powell, J.

1. In the absence of any proof to the contrary, the jury ire a burglary case are authorized to infer that a building described as the; “home” of the prosecutor is a dwelling-house.

2. The evidence amply warranted the verdict rendered, and no reversible-error of law is assigned. Judgment affirmed.

Submitted July 17,

Decided July 25, 1907.

Gordon & Charlton, for plaintiff in error.

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


author: Hill, C. J.

text:
    537.
    Talley v. The State.
    Indictment for pointing gun, etc., from Douglas superior court —Judge Edwards. April 2, 1907.
    Argued July 17,
    Decided July 25, 1907.

      J. S. James, W. A. James, for plaintiff in error.

      W. K. Fielder, solicitor-general, contra.
   Hill, C. J.

1. While section 1017 of the Penal Code gives the right to the State and the accused to have the witnesses of the other examined out of the hearing of each other, and directs that “the court shall take proper care to effect this object so far as practicable and convenient,” yet this matter is within the discretion of the court, and its exercise will not be controlled unless manifestly abused.

2. Where the court, at the request of the solicitor and over the objection of the defendant, permitted a witness for the State to remai^ in court and assist in the prosecution, and said witness was first examined, there was no abuse of discretion.

3. The evidence warranted the verdict. Judgment affirmed.


text:
    539.
    BURNAM v. THE STATE.
    1. No question of constitutional construction is involved, such as to require certification of the case to the Supreme Court.
    2. The court erred in striking the plea in bar on demurrer.
    Indictment for assault witli intent to murder, from Dodge superior court — Judge Martin. May 21, 1907.
    Argued July 17,
    Decided July 25, 1907.

      DeLacy & Bishop, John B. Cooper, for plaintiff in error.

      E. D. Graham, solicitor-general, contra.
   Powell, J.

The defendant, being arraigned upon an indict- • ment charging him with an assault with intent to murder Mrs. Ray on January 31, 1905, filed a plea of former jeopardy and former acquittal. He alleged, that at a preceding term of the court he had been arraigned, tried, and acquitted on an indictment charging him with the murder of M. P. Livingston, “alleged to have been committed at the same time and place as in the present indictment; and an acquittal on the same evidence was had, and the same issues made as exist and would necessarily be made in this case, and which is the very same offense which he is now charged with and called upon to be tried in this very court.” It was further alleged that the two transactions were identical and that the former trial was in a court of competent jurisdiction. A copy of the record in the former trial was. attached. The solicitor-general filed demurrer, and the plea was stricken.

We fully discussed, in the case of Fews v. State, 1 Ga. App. 122, 58 S. E. 64, the question as to whether such a- plea presents any necessity for constitutional construction. We do not deem it necessary to say more now than is there said.

Of course we do not know what is the real truth as to the allegations of the plea. If the facts of the matter are such as they are stated to he by the solicitor-general in his argument in this court, the acquittal on the first indictment was probably not a bar to the prosecution of the second case. However, by filing demurrers instead of traverse, the solicitor-general gave to the allegations of the plea a constructive verity, which in this court is absolute. That the allegations of the plea are sufficient against demurrer, see Lock v. State, 122 Ga. 730 (2), 50 S. E. 932. The same-transaction test adopted in this State may make a trial for the murder of one person a bar to a prosecution for assault with intent to murder a different person. For instance, if the defendant shot at A, intending to kill him, and by reason of bad marksmanship struck and killed B, whom he did not intend to kill, the transactions, the assault with intent to murder A, and the actual murder of B, are legally the same. As intimated by this court in the Fews case, if by separate shots the defendant wounded two persons, the transaction would be single if the shooting was done in repelling a joint assault of these two persons. The intent of the defendant determines the matter. Croker v. State, 47 Ga. 570; Johnson v. State, 65 Ga. 94; Fews v. State, supra.

Judgment reversed.


text:
    550.
    Butler v. The State.
    Indictment for keeping gaming-house, from Chatham superior court — Judge Seabrook presiding. May 11, 1907.
    Argued July 17,
    Decided July 25, 1907.

      O’Connor, O’Byrne & Martridge, Robert L. Golding, for plaintiff in error. W. W. Osborne, solicitor-general, contra.
   Russell, J.

1. This case is controlled by the decision in the case of Rouse v. State, ante, 184, 58 S. E. 416.

2. To charge the jury as follows: “See in this case what, if anything, the evidence shows with reference to this defendant’s connection with the keeping or maintaining- of this establishment; you have heard the testimony. Did he furnish keys to persons, enabling them thereby to gain access to this establishment? If so, for what purpose did he furnish them? Why did he furnish them? What was his object in furnishing them? Did he cash checks for those who won money at games played there? If he did, what was his reason for doing so? Did he have an altercation with witness Graham with reference to the destruction of cards in the establishment? If so, what concern was it of his? Look at the evidence and see what those things indicate. See what conclusion the evidence leads your minds to. Of course, those things may happen without showing any proprietorship; that is true with reference to the last transaction. A man who would resent the destruction of cards in an establishment and get into an altercation . with another on that account would not necessarily be concerned in the proprietorship of the establishment. All those things are matters that the jury should consider in connection with all the facts and circumstances. See what those things indicate,” is so prejudicially argumentative, and so strongly intimates to the jury that certain facts and circumstances have been proved as to render the grant of a new trial obligatory upon this court. Civil Code, § 4334; Baldwin v. State, 120 Ga. 188. Judgment reversed.


text:
    549.
    Fulton v. The State.
    Indictment for keeping gaming-house, from Chatham superior court — Judge Seabrook presiding. May 11, 1907. •
    Argued July 17,
    Decided July 25, 1907.

      Twiggs & Oliver, O’Connor, O’Byrne & Hartridge, for plaintiff in error. W. W. Osborne, solicitor-general, contra.
   Russell, J.

This case is controlled by the decision this day rendered in the case of Butler v. State, ante. The charge of the court plainly . violated the provisions of the Civil Code, § 4334.

Judgment reversed.


text:
    551.
    Harper v. The State.
    Indictment for illegal sale of liquor, from Henry superior court —Judge Beagan. May 13, 1907.
    Argued July 17,
    Decided July 25, 1907.

      Gleaton & Gleaton, for plaintiff in error.

      O. H. B. Bloodworth, solicitor-general, contra.
   Powell, J.

As to the exception to the sufficiency of the. evidence, the case is controlled by Plummer v. State, 1 Ga. App. 507, 57 S. E. 969; and as to the exception to the charge of the court it is controlled by the long line of decisions cited in 13 Michie’s Digest, 139, C.

Judgment affirmed.


text:
    552, 629.
    MILL v. THE STATE.
    1. The law of the preponderance of evidence is not applicable in criminal cases; and where in a particular ease there is testimony in behalf of the State and the defendant, and the issue to be determined depends upon the weight which the jury may give to the conflicting evidence, it is error to charge said law.
    2. The only appropriate charge in a criminal case on the subject of the weight of evidence is the fundamental principle that the State is required to prove the guilt of the accused beyond a reasonable doubt.
    3. The law of positive and negative testimony was not applicable to the facts of this case, and a charge thereon was calculated to confuse and mislead the jury, and was especially en-oneous without an instruction that in weighing the testimony of witnesses the jury should also consider and pass upon their credibility.
    4. The evidence indicating the guilt of the defendant is weak and not entirely satisfactory; but there is some slight evidence to support the verdict and we can not hold that the court erred in the exercise of its discretion in refusing to grant a new trial.

      5. There is no law by which the State can maintain a cross-bill of exceptions in a criminal case; and in such a case, there being no provision of law for taxing the cost against the State, the cost will be taxed, under the Civil Code, §§5512, 5591, against the solicitor bringing the cross-bill.
    Accusafiou of killing hog, from city court of Wrightsville — Judge Faircloth. May 20, 1907.
    Submitted July 17,
    Decided July 25, 1907.

      E. L. Stephens, for plaintiff in error.

      J. L. Kent, solicitor, contra.
   Hill, C. J.

Otto Mill was convicted in the city court of Wrightsville, on an accusation charging him with the offense of maliciously killing a certain described hog. He filed a motion for .a new trial, which was overruled. This is the second time that plaintiff in error has appeared before this court. The verdict of ;guilty against him was set aside in the first instance because of ■the failure to prove the venue.

If we had authority to do so, we would be inclined to set aside the verdict and grant a new trial on the ground of the weakness of the evidence for the State; but if the jury believed the prosecutor, there was some evidence on which a verdict of guilty could have been predicated; and therefore we can not hold that the trial judge .abused his discretion in refusing to grant a new trial. The only ■evidence against the defendant is that of the prosecutor, who testified that he found his hog dead just outside of the field of the •defendant with wounds upon its body indicating that death had been caused by violence, and the statement by the defendant to him that he had killed the hog and thrown it over the fence. This confession was denied bj’ the defendant, and there was much evidence in his behalf which tended to prove that no hog had been killed by him, several witnesses swearing that they had made diligent .search at and near the place where the prosecutor located the body ■of the dead hog, without finding it, and several other witnesses testified that thej1- had seen the hog described by the prosecutor as having been killed, subsequently alive in the prosecutor’s lot, and there were no marks upon its body except that its tail had been recently bitten off or cut off. The defendant stated, on his trial, that the hog in question had been committing depredations in his cornfield, and that he set his dog on it to run it out, and that the dog had bitten off the hog’s tail. The 'prosecutor testified that this tailless hog was not the one that the defendant had killed, but that this hog had been without a tail since its “pighood.” In addition to the weakness of the evidence indicating guilt, there was shown to be a very bad state of feeling between the prosecutor and the defendant. In view of the character of the evidence, we think the court erred:

In charging the law of the preponderance of evidence. The entire charge of the court is not given in the record. The excerpt from the charge on the subject of the preponderance of evidence led the jury to believe that they would be authorized to base a conviction on the greater weight of the evidence. We think, under the facts of this case, that this instruction was not only calculated to-mislead the jurjr, but was hurtful to the defendant. This is especially true where there was, as in this case, only one witness for the State, and many for the defendant, and the court told the jury that while they could consider the number of witnesses in deciding-upon the weight of the evidence, the preponderance was not necessarily with the greater number. Williams v. State, 125 Ga. 302, 54 S. E. 108; Jackson v. State, 125 Ga. 101, 53 S. E. 607.

The court charged the jury the law of positive and negative testimon)*- as defined in the Penal Code, § 985. This charge was not applicable to the facts of the case, and was calculated to mislead and confuse the jury. Besides, the court, in this connection, failed to-instruct the jury that in weighing the testimony of the witnesses they should also consider and pass upon their credibility. This, we think, was error. Wood v. State, Phillips v. State, 1 Ga. App. 684, 687, 57 S. E. 1079, 58 Id. 271.

Error is also assigned because the court failed to charge the jury the law of confessions, it being insisted that such law was especially applicable in this case, where the only evidence incriminating, the defendant was his confession, and this confession was corroborated only by circumstances proving the corpus delicti. While we think that such charge would have been appropriate to the facts of this case, we can not hold that the court committed error in not so charging where there was no request to do so.

For the reasons stated in the first and second paragraphs in. the foregoing opinion, the judgment refusing a new trial is reversed.

There is no law in this State authorizing the State to maintain a. cross-bill of exceptions in a criminal case. Judgment reversed.


text:
    567.
    Yancey v. The State.
   Powell, J.

1. There being some evidence to'support the verdict, the same-' will not be set aside, though evidence may have been introduced tending to impeach the State’s chief witness. Plummer v. State, 1 Ga. App. 507, 57 S. E. 969.

2. In a county where the sale of intoxicating liquor is prohibited by law, it is not error- for the court to state directly to the jury that such is the case, instead of reading them the statute.

3. No reversible error is found in the record. Judgment affirmed.

Accusation of illegal sale of liquor, from city court of Sylvester— Judge Park. May 28, 1907.

Submitted July 17,

Decided July 25, 1907.

J. J. Forehand, T. R. Perry, for plaintiff in error.

J. H. Tipton, solicitor, contra.


text:
    573.
    McDuffie v. The State.
    Indictment for assault with intent to murder, from Wilcox superior court — Judge Whipple presiding. May 4, 1907.
    Submitted July 17,
    Decided July 25, 1907.

      E. H. Williams, for plaintiff in error.

      E. D. Graham, solicitor-general, contra.
   Hill, C. J.

1. The granting of a new trial on the ground of newly-discovered evidence is not favored by the courts, and it should clearly appear that the evidence newly discovered is of such a character as to probably change the result upon another trial.

2. Where the newly-discovered evidence -was that of a boy only seven years of age, whose father and others, in counter-affidavits filed to the motion, stated he was immature intellectually and physically, and did not understand the nature of an oath; and where it also appeared in the counter-showing that the said boy witness had stated on examination that he did not understand the nature and obligation of an oath; and where it was further made to appear by counter-affidavits that the alleged newly-discovered evidence of the boy witness was probably untrue, this court will not interfere with the judgment of the trial court in refusing to grant a new trial on this ground.

3. Ho error of law is complained of, and the verdict was fully warranted by the evidence. Judgment affirmed.


text:
    583, 589.
    DURHAM v. THE STATE (two cases).
    1. Where it clearly appears from the evidence that the guilt or innocence of the accused depended upon whether the jury would believe the prosecutrix, it was error for the court, either by questions having reference to another case which had been withdrawn from the jury or otherwise, to say or do anything amounting to an expression of an opinion as to what the court believed to be the truth of the transaction, or to what evidence the court attached importance.
    2. The questions asked by the court and the answers thereto were prejudicial to the defendant, and such an expression of opinion on the part of the court as demands a new trial.

      Accusations of carrying concealed weapon, and of pointing pistol, from city court of Sylvester — Judge Park. May 28, 1907.
    Argued July 17,
    Decided July 25, 1907.

      Perry & Williamson, for plaintiff in error.

      J. H. Tipton, solicitor, contra.
   Russell, J.

The defendant was prosecuted in the committal court for carrying a concealed pistol, for pointing a pistol at ■another, and for the offense of rape. On the committal trial he was discharged so far as the charge of rape was concerned, but bound over to the city court of Sylvester on the other two charges.. Accusations were filed in the city court, charging him with carrying a pistol concealed and with the offense of pointing a pistol at another, and an accusation was also filed against him for the offense of assault and battery, all the offenses occurring at the same time, as alleged. By consent of counsel for both sides the defendant was put on trial for all three offenses at once, and before the same jury, who were to render separate verdicts in each case. After the prosecutrix had delivered a considerable portion of her testimony, the court, without the consent of the defendant, withdrew the accusation and charge of assault and battery from further consideration by the jury. The testimony of the prosecutrix was that the defendant came to her house on a certain Sunday in December, 1905, and, finding that her husband was away from home, requested sexual intercourse with her, and upon her refusal, and after she had run into a crib and closed the door, took from his pocket a pistol which had been previously concealed and pointed it at her. According to her testimony this transaction involved three offenses: obscene and vulgar language in the presence of a female, earrjdng a pistol concealed, and pointing a pistol, at another. The prosecutrix further testified that the defendant again came to her house on Tuesday, December 17, 1905, broke down the door to the house, seized her and raped her. The defendant again disclosed his pistol which was concealed before he took it out of his pocket. Both visits to the prosecutrix’s house were in the daytime; the first visit, the sun was about an hour high in the afternoon, and the latter occasion was about two o’clock in the afternoon. The house of the prosecutrix is in plain view of other houses. The defendant introduced a number of witnesses to show that they could have seen the house and crib he was alleged to have visited, and would have heard the noise of breaking down the door; and also introduced the testimony of a number of witnesses to prove an alibi.

The turning point in the case was whether the defendant was at the house of the prosecutrix at all on either of the occasions named. If the jury believed he was, there could be but little question of his guilt because the testimony of the prosecutrix alone must be relied upon to establish the defendant’s presence at her home; and if it were credible on this point of contest and conflict, belief of the remainder of her story would follow as a matter of course. If, on the other hand, the defendant did not go to her house and her testimony as to that be false, the entire structure of all the charges' is without foundation.

When the prosecutrix had concluded her testimony as to the rape, the judge of his own motion withdrew the case of assault from the jury, and shortly afterwards proceeded to question the prosecutrix, eliciting from her evidence that she was pregnant at the time of the rape, and other facts and circumstances which it is contended were not material to the other accusations still remaining before the jury for their consideration and which were highly prejudicial to the defendant’s defense as to the other charges. In the first grounds of the motion it is insisted that the court erred in withdrawing from the consideration of the jury the charge of assault and battery, and in using the following language in the presence of the jury: “I will withdraw from this jury the case of assault.” These words were used by the court, when the prosecutrix, Lucy Williams, was on the stand, and after she had testified as follows: “The first transaction took place December 3, 1905, on Sunday. I don’t know what time of the day it was. I didn’t have a clock. I think it was about two o’clock. He . came in there and asked me under my clothes. The court. Asked you what ? A. Asked me a question under my clothes. The court. Asked jrou a question under your clothes? A. Yes sir. I told him I wasn’t going to do it, and I said to him that I was going to tell my husband; and he said he didn’t care, he was going to take it, and he grabbed hold of me, and I snatched loose and ran in the crib, and he pointed his pistol in there and said he was going to kill me, and he said he would see me again. He pointed his pistol at me then, and said he believed he would kill me, he didn’t care. The next time he come was on Tuesday, December 17, T905. He come up there that time and told me to open the door, and I wouldn’t do it, and he broke it open and come in there and snatched hold of me and said he was going to kill me. I couldn’t do nothing. It was in the house then: He flung me across the bed and took it, and said if I owned it he would kill me. He had a pistol then, and I reckon it -was the same pistol. He had it concealed. The sun was about an hour high this time. The Sunday that John went there — after he left I didn’t do nothing but stay there until my husband came, and I told him about it.” The plaintiff in error insists that the court had no legal right, after the issue had been joined and evidence submitted, to withdraw the case from the jury without the consent of the accused; and that the withdrawal of the case was prejudicial to the defendant in his trial on the two remaining cases, because it tended to create in the minds of the jury the impression that the court believed the testimony of the prosecutrix, and that the defendant was guilty of all • the acts testified- to by the prosecutrix. And these acts, of course, constituted the two offenses upon which the defendant was still on trial. The plaintiff fin error therefore insists that the withdrawal of the case by the court amounted to an intimation of opinion on the part of the court as to the evidence. The court evidently - intended to comply with that requirement of law which requires the judges of certain county and city courts, wherever the evidence developed on the trial of a criminal case shows the defendant, if guilty at all, to be guilty of a felony, to suspend the trial and commit or bind over the defendant to the superior court. This was the evident intention of the judge, and the jury might draw from his action the inference that he believed the defendant to be guilty of the graver offense of rape, of which, his court had no jurisdiction. And if they did so believe, the conclusion would be irresistible that the defendant was guilty of the remaining charges which were still on trial; for all of the offenses were included, in one transaction, dependent solely on the credibility of the prosecutrix. The action of the court in withdrawing the case, even if proper, was accompanied by such questions and. suggestions as did clearly amount to an expression, of an opinion that the defendant was guilty of the other two offenses for which he was being tried, and therefore demand the grant of a new trial. The questions asked by the court appear to our mind to be natural indications of the honest indignation of an upright'magistrate, and yet they were wholly immaterial on the question of the defendant’s guilt of the offense of carrying a concealed pistol, and of pointing that weapon at the prosecutrix, and likewise the fact ' elicited by the court, that the injured female was at the time of the outrage pregnant, could illustrate nothing in the pistol cases, but greatly tended- to impress; the jury with the idea that the court was deeply moved by the enormity of the outrage which had been ■committed without question upon the prosecutrix. And of course as the prosecutrix had been raped under the most aggravating circumstances, the more aggravating those circumstances appeared the more odious the defendant became in the eyes .of the jury, and the more strongly the truth of the prosecutrix’s story was clinched in the minds of the jury. Without regard to any other error assigned, the intimation of opinion on the part of the court conveyed to the jury by these questions is controlled by §4334 of the code, and requires a reversal of the judgment refusing a new trial.

As the complaints with reference to the charge of the court are -dependent wholly upon the theory that the presentation to the jury of the prejudicial matters to which we have referred was erroneous, and as it is not possible for this view again to be presented, it is not necessary that they should be considered.

Judgment reversed.


text:
    548.
    Johnson v. The State.
   Russell, J.

1. To steal articles of value from the porch of a building used as a restaurant, it being shown by the evidence that said porch was also used as a part of the restaurant, is larceny from the house, and it is not error to instruct the jury that if they “find from the evidence that the basket containing these articles was taken from an ice-box which-was jammed up between the front steps and the front part of the restaurant, and if you further find that the ice-box was part of the appurtenances belonging to that restaurant, and that, besides this, the offense is proven to you beyond a reasonable doubt, it would be larceny from the house.”

2. To charge the jury that “the State contends before you, gentlemen, that this defendant was seen by a certain witness to take and start away and carry away this basket containing the article testified to you about; that it was afterwards found in a wagon he was'in charge of and driving, and that this is the only way possible to account for the theft,” so particularizes and argumentatively enforces upon the jury the inference of guilt as to amount to an intimation of opinion, within the terms of §4334 of the Civil Code, and is reversible error.

Accusation of larceny from house, from city court of Sylvester— Judge Park. May 28, 1907.

Submitted July 18,

Decided July 25, 1907.

J. J. Forehand, T. R. Perry, for plaintiff in error.

J. H. Tipton, solicitor, contra.

3. To charge the jury that “good character proven by a reliable witness goes to the credit of a witness; but I charge you further to take all the surrounding circumstances of this case together and see if you can learn the facts and arrive at a truthful verdict,” is not a correct charge where the defendant has put his character in issue. It does not. give the jury the proper rule applicable to proof of good character \>i the defendant.’ It was unauthorized by the evidence in the case, for the reason that no evidence was adduced as to the good character of any of the witnesses; and in the absence of instructions as to the effect of evidence of good character, the latter portion of the charge was . calculated to diminish the force of the evidence of good character in behalf of the defendant, if it did not indeed entirely withdraw it from, the consideration of the jury. Judgment reversed.


text:
    587, 588.
    HARRIS v. THE STATE (two cases).
    1. Where it appears, without contradiction, in the evidence, that the offense alleged to have been committed, if committed at all, occurred within two years prior to the filing of the accusation, an instruction that the State only has to prove that the transaction “happened two years prior to the date alleged in the accusation” was a harmless error.
    2. Rules of evidence, especially addressed to the’ discretion of the court, are not appropriate subject-matter of instructions to the jury, but those given the jury in this ease could not by any possibility be harmful to the plaintiff in error.
    3. Where the jury has been properly and fully 'instructed with reference to the statement of the defendant, it is not necessary, in the absence of a written request, to contrast the statement with the evidence or to give in charge to the jury any theory dependent upon the statement alone. Nor is it error to instruct the jury to take the testimony and the law as given in charge and apply it to the testimony and decide whether or not they believe the defendant did commit the offense alleged against him.
    4. The verdict is authorized by the evidence, and being approved by the trial judge, it will not be set aside for slight errors which could neither have induced nor have contributed to the finding of the jury.

      Accusations of carrying concealed weapon, and of pointing pistol; from city court of Sylvester — Judge Park.. June 12, 1907.
    Argued July 18,
    Decided July 25, 1907.

      Payton & Hay, for plaintiff in error.

      J. H. Tipton, solicitor, contra.
   Russell, J.

Ed Harris was arraigned in the city court of Sylvester, at the April term, 1907, upon two accusations, one charging him with the offense of carrying a concealed pistol, and the other charging him with the offense of pointing a pistol at another, both cases growing out of the same transaction. The two cases were tried together, and the jury returned a verdict of guilty in both cases. Harris thereupon filed his motion for new trial in both.cases; and his motions being overruled, he brings writs of error to this court.

The plaintiff in error insists that it is not sufficiently shown by the evidence that the transaction testified to by the witness for the State was within the statute of limitations. This is the only assignment of error based upon the evidence; and we think it without merit, for the reason that while the witness could not be certain that the occurrence to Avhich she was testifjdng was in the year 1905, still she swore positively that it was on the third Sunday in February of year before last. As the trial was had in 1907, and the accusation was preferred in 1906, the testimony was ampty sufficient to show that the offense was committed within two years prior to the accusation. The remaining exceptions are all predicated upon alleged errors in the charge of the court.

The fourth, fifth, sixth, seventh, and eighth grounds of the motion all relate to the charge of the court on the subject of impeachment. Hnder repeated decisions of the Supreme Court, it would not have been erroneous for the court to have omitted altogether the charge upon this subject; at least, not such an error as would require a new trial. We find no error in the instructions as given to the jury upon this subject; and if a fuller charge was desired, it should have been requested. A brief recapitulation of these grounds convinces us that .there was no error in the charge of the court on the subject of impeachment and the credibility of the witnesses that can, under any previous decision, be held to have been harmful to this defendant.

The fourth ground of the motion complains that the court erred in. charging the jury that “it is the duty of the jury to make all the witnesses speak the truth, if that can be done, and not impute perjury to any witness.” In view of the conflicts in the evidence of the prosecutrix, Margaret Caldwell, and the witness Tison, on the one hand, and J. C. Bogers, on the other, there-is no merit in this exception.

In the fifth ground of his motion the defendant assigns the following charge of the court as error :• “If there be a conflict -between the testimony of witnesses, it is your duty to reconcile the confliqting testimony,. and if this can not be done, then you are to give credit to those witnesses which, in your opinion from all circumstances of the case, are most entitled to credit, the jury being always the judges of the credibility of the witnesses.” The plaintiff in error contends that this charge of the court was not authorized by the evidence; and further, that it put the jury to seeking a conflict; impressed the fact that the defendant had not brought witnesses to court to contradict the State’s witnesses; and further, that the court, having attempted to give the jury the rules for determining the credibility of the witnesses, did not instruct them with that fullness and clearness required by law. In support of the last statement counsel cites the decision in Rouse v. State, ante, 184, 58 S. E. 416, that reference in the charge to subjects upon which, by law, no charge is necessary without request, requires that the jury be properly instructed on such subjects thus referred to. We think this charge is authorized by the evidence, and that it does not put the jury to seeking a conflict, because one already existed; nor does it, in any sense, contain any intimation, as contended by plaintiff in error, that defendant had not brought witnesses to court to contradict the State’s witnesses. In so far as the decision in the Bouse case, supra, is concerned, the charge is not in conflict with the principle therein announced; because the only subject to which reference is made in the excerpt quoted is to the duty of the jury where there is a conflict in the evidence, and the rule in such event is fully and correctly given by the statement that it is the duty of the jury to reconcile any such conflict, •if possible, and that if this can not be done, the credit is rather to be given to those witnesses which, in the opinion of the jury, are mos.t entitled1 to cridit. This is a very general and absolutely harmless reference ox the testimony to the jury, without any reference to any of the rules by which they should measure the credibility of the witnesses. The principle announced in the Rouse case would have been violated if the court had referred to any one or more of the circumstances by which the credibility of the witnesses may be measured and in the .same connection had omitted to mention other circumstances usually referred to the jury to be used by them in weighing the testimony. . For instance, if the court had called the attention of the jury to the fact that they might consider the witnesses’ manner of testifying, their intelligence, their means and opportunities of knowing the facts as to which they testified, and the nature of the facts to which they testified, it would have been error not also to have called the attention of the jury to the fact that they should consider the probability or improbability of the testimony and the interest or lack of interest of the witnesses, as well as their personal credibility, so far as the same might legitimately appear from the trial. In other words, to use the principle in the Rouse case as it is sought to be applied by counsel for plaintiff in error, the judge would have had to refer to one or more of the circumstances which may tend to affect the credibility of the witnesses. If he had done so, he would have been required to charge fully upon the subject. But as he was not required,'in the absence of request, to charge upon this subject, there was no error in not referring at all to any of the rules by which the credibility of witnesses is measured. So far as the conflict in testimony was concerned, the excerpt, taken in connection with the whole charge, was properly given and sufficiently full in the absence of a written request.

The sixth, seventh, and eighth grounds assign error on extracts taken from the charge. That portion of the charge referred to by these three exceptions is as follows: “A witness may be impeached by disproving the facts testified ,to by him. A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the.ease; but before contradictory statements can be proved against him, his mind should be called with as much certainty as possible to the time, place, person, and circumstances attending the former statement, for laj'ing the foundation before introducing such testimony. A witness may be impeached by evidence of general bad character. The impeaching witness should be first asked as to his knowledge of the general character of the witness; and next, as to what that character is; and lastly, he may be asked if, from that character, he would believe him on oath. The witness may be sustained by similar proof of character.” We can not fully approve this extract from the charge, for the reason that it was not proper to* give to the jury rules which are especially addressed to the discretion of the court; but we fail to see how this could have been, harmful to the defendant. This case is not similar'to that of R. & D. R. Co. v. Mitchell, 92 Ga. 83, 18 S. E. 290, to which we are-cited. Chief Justice Bleckley in that case says: “We have scrutinized the evidence very carefully, and there is no conflict in it on any material issue, and no charge upon the subject was appropriate. No harm would have been done by an instruction merely to reconcile conflicts in the evidence, if any existed and if the jury could, reconcile them; but to put the jury on the lookout for other witnesses, witnesses not introduced or accounted for, was rather a dangerous thing; and every one knows to which of the parties it was dangerous.” The charge excepted to in that case was, “If you find, from the evidence, that there is a conflict, . . and. you should find that there is a witness or witnesses accessible-whose evidence would throw light upon that issue, and that witness or those witnesses were not introduced or accounted for, that, circumstance may be considered by you in passing upon that issue.’” There is nothing similar to this in the case at bar, and.there is conflict in the evidence, especially between the prosecutrix and the: witness Bogers. In the Mitchell case, supra, the Supreme Court, held that the vice in the charge then under consideration was that the court assumed that by possibility the jury might find a conflict in the evidence. In this ease that conflict really exists.

In the ninth ground of the amended motion error is assigned as to the following charge: “The State contends that this defendant did, on the occasion alleged in the accusation, or within two years prior to that date, — that being all that the State has to do in a criminal case, is to prove the transaction alleged in the accusation, or indictment having happened two years prior to the date alleged in the accusation,” etc. The charge complained of is not a correct statement of the law. The court should have instructed the-jury that the State must prove the alleged offense to have been committed within, two years prior to the finding of the indictment, or the filing of the accusation, as the case may be. But no harm, could have resulted to the defendant, inasmuch as the evidence was uncontradieted that the offense, if any, was committed within less than two years prior to the date of the accusation. If there were conflict in the evidence as to this point, it would be so vital as perhaps to require a new trial. There being no dispute as to this phase of the case, the inaccuracy in the charge of the court falls into the category of harmless errors.

Exceptions are taken, in the tenth ground of the motion, to the charge of the court for failure to instruct the jury as to what facts constitute the crime referred to in the accusation; and complaint is made also that the extract therein contained is an intimation by the court to the jury as to the evidence. The charge complained of is as follows: “The State alleges and contends that they have proven that this defendant did have and carry about his person, not in an open manner and fully exposed to view, a certain pistol.” Were this extract the only statement of the court upon the subject, we might concur in the argument with the learned counsel for plaintiff in error that the charge is erroneous. But an examination of the entire charge shows that the court defined to the jury, at the very outset of his instructions, and in the A'ery language of the code, both of the offenses for which the defendant was being tried. In the absence of request for fuller explanation to the jury, the definition afforded in the terms of the statute is sufficient, and the lack of further instruction is not reversible error.

The complaint in the eleventh ground of the motion is that the court eliminated the defendant’s statement from the consideration of the jury, by concluding with the following injunction to the jury: “You take this testimony, gentlemen, and the law as given you in charge, and apply it to the testimony, and decide whether or not you believe the defendant did commit either offense or both offenses alleged against him.” The jury were properly instructed as to the defendant’s statement In another portion of the charge. The statement is not in any technical sense evidence; and the court having already referred properly to the statement, there was no error in the charge above quoted, nor did it eliminate the statement from consideration of the jury.

Upon a review of the entire'charge, with exception of the errors to which we have referred, and which, in onr judgment, were clearly harmless, the case was fairly submitted to the jury. With the credibility of the prosecutrix at issue, with the-contentions of the defendant as fairly stated as those on the part of the State, with no expression of opinion on the part of the. trial judge to induce their finding, we are not prepared- to say that the jury erred in their verdict, or that the court erred in sustaining it byr overruling the defendant’s motion for new trial. Upon first view the assignments of error seemed grave, but, considered in connection with the charge as a whole, they either disappear from sight or become so shrunken as to afford ho obstruction to administration of the law. As said by Chief Justice Bleckley in Brown v. Matthews, 79 Ga. 1, 4 S. E 13, “A charge torn to pieces and scattered in disjointed fragments may seem objectionable, although, when put together and considered as a whole, it may be perfectly sound. The full charge being ití the record, what it lacks when divided is supplied when the parts arc all united. United they stand, divided they fall.” Judgment affirmed.


text:
    595.
    White v. The State.
   Russell, J.

1. The charge of the presiding judge was not, for any reason, erroneous. It is a clear, impartial, and comprehensive presentation of the law applicable to the evidence adduced in the case.

(a) Evidence for the State showing that the killing occurred shortly after the deceased’s attempt to kill the defendant, but after the deceased had' been disarmed, and while the deceased was making an 'assault upon the defendant, fully authorized the charge of the court upon the subject of voluntary manslaughter. If the jury believed this testimony, the killing could be attributed, either to the sudden irresistible impulse of passion aroused by the attempts of the deceased to slay the defendant before being disarmed, or to the fact that the defendant, no longer being in danger of losing his life or having a felony committed upon his person, killed the deceased merely to prevent an assault or an assault and battery. If this testimony was believed by the jury, thé killing, in either event, would be voluntary manslaughter.

<i>) There was no error in not charging the jury the principle of law contained in the Penal Code, §72. This section refers only to homicides having their origin in a forcible attack and invasion of the property or habitation of another; and as there was no evidence tending to show that any attack or invasion of the habitation of the defendant was intended by the deceased, but that on the contrary he was a guest or visitor at defendant’s residence before the beginning of the difficulty, a charge upon §72 would have been unauthorized and erroneous.

Conviction of manslaughter, from Coweta superior court— Judge Freeman. May 30, 1907;

Submitted July 18,

Decided July 25, 1907.

A. H. Freeman, for plaintiff in error.

J. R. Terrell, solicitor-general, W. L. Stallings, contra.

Judgment affirmed.


text:
    598.
    SMITH v. THE STATE.
    1. The venue is a jurisdictional fact, and a conviction is unauthorized unless the venue be established clearly and beyond a reasonable doubt.
    2. The venue, as any other fact in a case, may be proved by circumstantial evidence, as well as by direct proof, but numerous decisions of the Supreme Court, by which the Court of Appeals is bound, compel a holding that the evidence in this case does not disclose sufficient circumstances to adequately establish that the crime charged was committed in the county alleged.
    Indictment for car-breaking, from Bibb superior court — Judge Felton. June 13, 1907.
    Submitted July 18,
    Decided July 25, 1907.

      John R. Cooper, for plaintiff in error.

      William Brunson, solicitor-general, contra.
   Russell, J.

The only question in this case is whether the venue is sufficiently proved. It is insisted by plaintiff in error that it is not proved beyond a reasonable doubt, and by the State that it is established by circumstances. Yenue can be proved by circumstantial evidence, just as any other fact may thus be established. IT ere the question a new one, and to be determined by us as an original proposition, we would perhaps hold that the circumstances in this case ought to satisfy a jury beyond any other reasonable conclusion that the car was broken into in the county of Bibb, and that the jurisdiction of the court was thus proved; because it appears that the car'was left at the Southern yard in or near Macon and this court would feel authorized to take judicial cognizance of the geographical extent of Bibb county and of the location of the city of Macon therein. But in view of the holding in Gosha's case, 56 Ga. 36, and Moye’s case, 65 Ga. 754, we-are constrained to hold that the venue in this case was not sufficiently shown, and that for failure of proof of this .jurisdictional fact the case must be remanded for another trial. In both of those cases it is held that the venue of the crime must be established clearly and beyond all reasonable doubts. In Gosha’s case.the proof was that the crime was committed within fifty yards of a residence which was in Sumter county. And in view of the locality in which the crime was committed and the nature of the crime this would seeip to have been sufficient. But the Supreme Court thought otherwise, Jackson, Justice, delivering the unanimous opinion of the court. In Moye’s case -the proof showed that the crime was committed in the lumber yard of a Mr. Sloan in the city of Americus, and .yet the Supreme Court again held that this was not sufficient to prove • that the offense was committed in Sumter county. In Cooper’s case, 106 Ga. 120, 32 S. E. 23, the proof showed that the difficulty occurred in front of a certain store in Lawrenceville, the county town, and then it was again held that the venue was not sufficiently proved.

The most that the evidence in this case shows, with reference to the venue, is that the car alleged to have been broken was left in the Southern yard in Macon, and- may have been broken into there. Under the decisions above referred to there was no sufficient proof that the crime, if committed by- the defendant, was committed in Bibb county. While we are constrained to make this ruling, we would suggest legislation to the effect that a new trial should not be required to be granted upon the ground that the venue has not been sufficiently proved, unless the point be insisted upon at the trial and before verdict. Judgment reversed.


text:
    599.
    REEVES v. THE STATE.
    A verdict of voluntary manslaughter will not be sustained as against the exception that the same is without evidence to support it, when the testimony of the witness and the statement of the defendant present only the issue whether the defendant was guilty of murder or was justifiable.
    Conviction of manslaughter, from Meriwether superior court— Judge Freeman. May 30, 1907.

      Argued July 18,
    Decided July 25, 1907.

      W. R. Jones, Hill & Culpepper, for plaintiff in error.
    J. R. Terrell, solicitor-general, contra.
   Powell, J.

This court is very slow to set aside the verdict of .a jury, approved by the trial judge, on the ground that there is no evidence to support it; but in this case there is not the slightest-scintilla of evidence upon which .the verdict rendered can legally rest. The defendant wás indicted for murder, and found guilty of voluntary manslaughter. If the jury had believed the testimony of the State’s witness, and the dying declarations of the deceased as detailed by his wife, a verdict of guilty of murder would have been authorized; for, according to this version of the case, ihe ■defendant committed nothing less serious than a malicious, unjustifiable, unmitigated homicide. But by their verdict the jury found that the defendant was not guilty of this offense, and, for the purposes of the trial under'review, acquitted him thereof. The testimony by which a conviction of murder would have been authorized having been eliminated, the remainder of the evidence in the case shows a perfect case of justifiable homicide. There was no evidence whatever of a homicide not justifiable, and not malicious, but provoked by an assault or other equivalent circumstances to justify the excitement of passion, that is to sajq of a voluntary manslaughter. According to the State’s testimony, the defendant and the deceased were walking along in the road quarreling; each had a gun, but without any more provocation than mere words, the defendant stepped to one side of the road, deliberately raised his gun and shot the deceased, who was making no assault whatever on him; after the deceased was shot and had fallen to the ground 'he raised his gun and shot the defendant. Of course this ■subsequent shot by the deceased could not justify or mitigate the ■defendant’s offense, already committed. According to the defendant’s statement, corroborated by his witnesses, the deceased and a •companion made a joint quarrel with him, which he sought to decline until the deceased, witli the statement that he'was going to shoot the defendant, jumped back, cocked his gun, aimed it and fired, the load striking the defendant, who to repel the attack, .also fired his gun simultaneously, striking the deceased and mortally wounding him. If this be the truth of the case, the killing was justifiable homicide. There is no theory of mutual combat on which the verdict can be justified. If one draws a gun on me and threatens to shoot me, no mutual combat arises by reason of the: fact that I take physical issue with him and shoot first,, even though I may have used opprobrious words to him. Butler v. State, 92 Ga. 601, 19 S. E. 51, Boatwright v. State, 89 Ga. 140, 15 S. E. 21. If we segregate the testimony and take so much of the defendant’s statement as asserts that the deceased and his companion were provoking a difficulty with him, whether at the immediate scene of the difficulty or'earlier in the day (for there was evidence of a previous quarrel), by words and by menaces, and likewise take so much of the State’s testimony as asserts that the defendant shot the deceased before he had drawn any weapon, and that the latter made no effort to shoot until after the former had mortally wounded him, the homicide would not be manslaughter; for while in some cases words, threats, and menaces may be so circumstanced as to operate to afford a justification for a homicide on the theory of reasonable fear, yet in no case are they sufficient to reduce the-offense from murder to manslaughter. Cumming v. State, 99 Ga. 662, 27 S. E. 177. It is true, so we find from the record, that over a month before the homicide occurred the defendant and. the deceased had had a difficulty in which the deceased gave the defendant sufficient provocation to have reduced a homicide occurring on account thereof from murder' to manslaughter; but there-is not the slightest suggestion in the testimony or the statement of the defendant that the homicide was the result of or was in any wise connected with this previous difficulty. In fact from the-context it seems manifest that this testimony was used for the sole purpose of showing the violent character of the deceased. In fact, after a close, careful scrutiny of the record, we find no evidence of a voluntary manslaughter. The verdict was manifestly a compromise. Such compromise, whereby the jurors give - up-their deliberate convictions and honest differences over the question of the defendant’s guilt of the only crime in issue under the testimony, and compromise by convieting him of another offense of which he is manifestly not guilty, is unlawful; is unfair to the State and unfair to the accused. In this connection note the typic case of Reed v. State, ante, 153, 58 S. E. 312. It is true that the court gave the jury instructions on the law of voluntary manslaughter, and no exception is taken thereto; however this does not prevent the verdict from being, as a matter of law, without evidence to support it, and exception is duly taken on that ground.

Judgment reversed.


text:
    609.
    Roberson v. The State.
    Accusation of illegal sale of liquor, from city court of Sylvester —Judge Park. May 29, 1907.
    Argued July 18,
    Decided July 25, 1907.

      L. D. Passmore, for plaintiff in error.

      J. H. Tipton, solicitor, contra.
   Powell, J.

The evidence authorized the verdict, and, taken in its entirety, plainly shows that the crime was committed within the statute of limitations. There being no evidence other than defendant’s statement upon which to base the assignment of error in regard to the failure of the court to charge certain principles, the judgment will not be reversed on account of such failure, it not appearing that any request so to charge was made in writing. Judgment affirmed.


text:
    612.
    Brown v. The State.
    Certiorari, from Morgan superior court — Judge Lewis. June 3, 1907.
    Argued July 18,
    Decided July 25, 1907.

      M. C. Few, for plaintiff in error.

      J. F. Pottle, solicitor-general, E. W. Butler, contra.
   Powell, J.

1. A person who has a pistol in his pocket in such a manner that those standing with full view of the defendant’s person can not .see it is not carrying it in that open manner and fully exposed to view contemplated by the Penal Code, § 341.

2. The errors of law assigned are not meritorious, and the evidence amply authorized the verdict. Judgment affirmed.


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    614.
    Sutton v. The State.
   Russell, J.

1. The evidence demanded the verdict.

2. While it would have been erroneous to ask the question, “Have you stated all you wish to say about selling the liquor ? ’’ had the case been on trial before the jury, the question, even as intimating an opinion, ^vas not prejudicial to the defendant, who was on trial before the judge without a jury.

Accusation of illegal sale of liquor, from city court of Abbeville —Judge Nicholson. May 25, 1907.

Submitted July 18,

Decided July 25, 1907.

C. C. Curry, E. H. Williams, for plaintiff in error.

M. B. Cannon, solicitor, contra.

3. Where a defendant is making his statement in a criminal case in which the judge is presiding without the intervention of a jury, it is not error for the court to intervene and curtail a rambling statement as to matters irrelevant to the case, after the defendant has asserted that he has said all he desires to say with reference to the offense he is alleged to have committed, and has fully denied all connection with the alleged offense. Judgment affirmed.


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    620.
    BURRIS v. THE STATE.
    1. While it is necessary, in order to sustain a verdict of guilty of assault with intent to murder, that the evidence should show such a case that if death had ensued from the assault the defendant would be guilty of murder, yet it is error for the court to instruct the jury that if the defendant made an assault with a weapon likely to produce death under such circumstances as would have made him guilty of murder had death ensued, he would be guilty of the offense of assault with intent to murder. Smith v. State, 52 Ga. 88; Napper v. State, 123 Ga. 571, 51 S. E. 592, and cit.; Adams v. State, 125 Ga. 11, 53 S. E. 804; Shockley v. State, 125 Ga. 778, 54 S. E. 692; Duncan v. State, 1 Ga. App. 118, 58 S. E. 248, and cit.
    2. It is error to charge the jury, in a case where the defendant has cut the prosecutor with a knife, that the defendant would be guilty of the statutory offense of stabbing if the cutting was done under such circumstances as that it would have been voluntary manslaughter if death had ensued.
    Indictment for assault with intent to murder, from Johnson superior court — Judge Rawlings. May 6, 1907.
    Submitted July 18,
    Decided July 25, 1907.

      E. L. Stephens, for plaintiff in error.

      Alfred Herrington, solicitor-general, W. W. Larsen, contra.
   Powell, J.

The first headnote requires no elaboration. An examination of the authorities cited will show not only the existence of the rule, but also the sound reasons' upon which it is established.

While Chief Justice Jackson, in his dissenting opinion in Baldwin v. State, 75 Ga. 489, expresses it as Ms view of' the law, in cases of cutting with a knife, that “when, if‘the offender had killed, it would have been manslaughter, the offense is stabbing, yet the majority opinion in that case, declaring that since the amendment to the stabbing act the circumstances of justification are for the jury in each case, has not been questioned by the Supreme Court in later rulings, and has been expressly followed by this court in Edmondson v. State, 1 Ga. App. 116, 57 S. E. 947. While such a cutting can not be assault with intent to murder, and •can not be any offense higher than that of stabbing, it is not necessarily the latter offense. See Napper v. State, 123 Ga. 572, 51 S. E. 592. A knife is not necessarily a deadly weapon. Paschal v. State, 125 Ga. 279, 54 S. E. 172. The law infers no intention to kill from, the fact of the cutting, unless death actually ensues. A distinction must be kept in mind between those cases in which the jury find that the purpose of the defendant was to take the life of the person assaulted and those in which this fact does not appear to their satisfaction. In cases where the defendant has cut with a knife, or other sharp instrument, if the cutting was done with the specific intention of killing the person cut, the offense is assault with intent to murder, if the cutting was done under such circumstances that if death had ensued the homicide would have been murder, and in that event only. Also where the cutting has been done by the defendant with the intention of killing the person cut, if the cutting was done under such circumstances that if death had resulted the homicide would have been voluntary manslaughter, the defendant would not be guilty of assault with intent to murder, but would be guilty of the statutory offense of stabbing. Although the cutting may have been done by the defendant with the intention of killing the -prosecutor, yet if it was done under such circumstances that if death had resulted the homicide would have been justifiable by reason of being committed in self-defense or under circumstances of justification, the defendant would be guilty of no offense. These rules apply only in the event that the cutting was done with deadly intent, with the intent to kill; and this intent is a specific fact to be proved in each-case, though it may be inferred by the jury from the facts and circumstances of the ease. If the cutting by the- defendant was not accompanied with any intention of killing the person cut, the defendant is not guilty of any higher offense than that of stabbing, and his guilt or innocence of that offense is to be determined by the question whether the cutting was done in self-defense or under other circumstances of justification. Whether the stabbing is justifiable or not is to be determined by the jury in .each case in light of the nature and extent of the cutting, the character of the weapon used, the provocation, if any, offered by the person cut, and all the other circumstances. While opprobrious language alone will not justify a stabbing (see Ward v. State, 56 Ga. 409), yet a slight cutting not intended to be deadly may be justified by an assault or other provocation offered by the person cut, too slight to justify a homicide or a deadly assault with a knife or similar weapon. Judgment reversed.


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    622.
    Kennedy v. The State.
    Indictment for assault with intent to murder, from Chatham superior court — Judge Canm May 3, 1907.
    Argued July 18,
    Decided July 25, 1907.

      Twiggs & Oliver, Edgar J. Oliver, Walter C. Hartridge, Jacob Gazan, for plaintiff in error.

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

The verdict finding defendant guilty, being wholly without evidence to support it, was contrary to law, and a new trial should: have been granted. Judgment reversed.


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    242.
    Vance v. The State.
    Accusation of cheating, etc., from city court of Americus — Judge Crisp. January 17, 1907.
    Submitted March 20,
    Decided August 8, 1907.
   Hill, C. J.

This court having duly certified to the Supreme Court the-constitutional questions made in the bill of exceptions, and that court, having decided that the act of 1903 (Acts, pp. 90, 91), under which, plaintiff in error was convicted, was not contrary to the provisions, of the constitution on any of the grounds stated, and there being no-other assignment of error, the judgment of the trial court is

Affirmed.

Williams & Harper, for plaintiff in error.

Zach. Childers, solicitor, contra.


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    371.
    Napier v. Brown.
    Complaint, from city court of Americus — Judge Crisp. March 5, 1907.
    Argued June 19,
    Decided August 8, 1907.

      H. B. Simmons, Shipp & Sheppard, for plaintiff.

      Allen Fort & Son, Dykes & Nisbet, for defendant.
   Powell, J.

1. “Where the error alleged is the granting or denying of a new trial, one assignment of error is sufficient to reach all the grounds of the motion on which the grant or refusal is based.” 8th Rule of Court. The motion to dismiss is therefore overruled.

■2. The trial judge did not abuse his discretion in granting a new trial.

Judgment affirmed.


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    380.
    McLENDON BROTHERS v. FINCH.
    1. A conveyance of standing timber for sawmill purposes being a sale of real estate and not a lease, the provision of the Civil Code, §3613, that “In a sale of land there is no implied warranty of title,” is applicable thereto. Where the vendor has given such a conveyance containing no covenant of warranty, and has taken purchase-money notes from the vendee, the latter can not defend against a suit upon the notes by any plea predicated upon the theory of a breach of an implied covenant of quiet enjoyment, under such instrument.
    2. While a vendee may recover from his vendor, who includes in a subsequent conveyance to a third person the land already sold (upon the theory of money had and received) such portion of the consideration of the second conveyance as is represented by the land so improperly included (Niles v. Groover, 78 Ga. 461), it is competent for the vendor to show that the land contained in the first conveyance was inserted in the second conveyance by mutual mistake, and that no part of the consideration of the second conveyance was given therefor.

      (а) If a vendor fraudulently makes a second deed of conveyance to the same land, a cause of action ex delicto will arise in favor of the first vendee, if he suffers damage thereby, although his conveyance may have contained no covenant of warranty.
    (б) Such a cause of action, being ex delicto, can not be set off against a suit upon promissory notes.
    3. A person who has suffered an actionable wrong may pursue any number of consistent concurrent remedies against different persons until he obtains satisfaction from some of them; he is not permitted to pursue inconsistent remedies.

      (а) No matter what right the party wronged may have of electing between remedies or of pursuing different defendants for the same cause of action, when he once obtains full satisfaction from one source, his cause of action ends, and he can assert it no further.
    (б) If the plaintiff in a suit brought upon a given cause of action accepts a sum of money in full settlement tjiereof, he can not thereafter set up the same cause of action against another whom he had the election of suing in the first instance.
    (e) A settlement of a cause of action by a partnership estops the individual partners, at least those who participated or acquiesced therein, from . afterwards asserting the same cause of action as their own.
    Complaint, from Paulding superior court — Judge Edwards. February 21, 1907.
    Argued June 20,
    Decided August 8, 1907.

      J. J. Northcutt, R. E. L. Whitworth, for plaintiffs in error.

      A. J. Camp, W. E. Spinks, contra.
   Powell, J.

In March, 1902, Finch, for the consideration of $1,000, sold to Smith & Tomlin all of the timber on certain lots of land, together with sawmill privileges, including right of ingress and egress; but limited the time within which the timber was to be cut and the privileges exercised to two years from date. The instrument of conveyance contained no clause of warranty.' As a part of the transaction Smith’ & Tomlin gave promissory notes for the purchase-money of the timber. In September, 1902, Smith & Tomlin transferred their conveyance to McLendon Brothers, and Finch took the notes of the latter partnership in lieu of the notes of the former. .Afterwards the partnership of McLendon Brothers & Smith, composed of the same persons as the partnership McLendon Brothers with the addition of Smith, acquired the conveyance; but the record is silent as to just how this was done. In May, 1903, the East & West Railroad Company sought to condemn a right of way through the lands on which the timber stood; and, to avoid the statutory proceedings, Finch, in consideration of $800, executed and delivered to the railroad company a warranty deed to the strip of land squght as a right of. way, and made no exception as to the timber. At the time this conveyance was executed McLendon Brothers & Smith were in possession of the timber and were actually engaged in cutting it. The railroad company proceeded to open and grade its right of way, and, in addition. to cutting down a considerable quantity of tbe timber* also impeded the ingress and egress to and from the mill and timber of McLendon Brothers & Smith; and this partnership brought suit against the railroad company for these damages. In settlement of this suit the railroad company paid to McLendon Brothers & Smith $425, and took from them a receipt in full for all damages done by the cutting of the right of way. Subsequently to this transaction Finch sued McLendon Brothers upon the notes which they had given for the timber. In defense to this action several pleas were filed, all of them based upon the fact that Finch had executed the deed to the railroad company, without excepting the timber and milling rights previously conveyed. They first set up the transaction bjr a plea of failure of consideration, asserting that the second conveyance was a violation of the former contract, and that through the violation of this contract the defendants had been damaged in a sum far in excess of the amount due on. the notes, by reason of the fact that the railroad company had destroyed their timber and mill rights, and that the consideration of the notes had therefore failed. They also set up the same transaction in the form of a plea of recoupment, and prayed judgment for the excess of the damages above the amount of the notes. They further set up, that, in conveying the land to the railroad company, Finch had also conveyed the timber; that the timber conveyed was of the value of $500; that this amount of money having been received by Finch for timber belonging to defendants, he should in equity and good conscience account to them for it; and they therefore prayed a set-off of this amount. It appeared, from the testimony that the railroad company had notice of the timber conveyance at the date on which they bought the right of way, and that n*> part of the eight hundred dollars consideration was paid on account of the timber. The defendants objected to this testimony, so far as it went to show that Finch had received no consideration for the timber, on the ground that it contradicted the recitals of the deed from Finch to the railroad company, which asserted that in consideration of $800 Finch conveyed the land, and did not except the timber. The court directed a verdict for the plaintiff, and the defendants bring error.

The relation between the parties to a conveyance whereby the one sells to the other the timber on land is that of vendor and venclee, and not that of landlord and tenant; and the conveyance is a deed, not a lease, although the time within which the timber is to be cut and removed is limited to less than five years. Baxter v. Mattox, 106 Ga. 344; McRae v. Stillwell, 111 Ga. 65; Morgan v. Perkins, 94 Ga. 353; Coody v. Gress Lumber Co., 82 Ga. 793. In cases of landlord and tenant, no estate passes out of the landlord further than a mere usufruct which is not assignable without the landlord’s consent. Civil Code, § 3115. The conveyance of timber, on the other hand, authorizes the grantee, not merely to use it and return it, but to take it away, sell it, and otherwise possess it. The time limit within which the timber must be removed is not a limitation directly upon the estate owned in the timber, but upon the concurrent license of ingress and egress necessary to the use of the timber. These conveyances are further distinguishable from leases, by reason of the fact that they are •assignable without the consent of the grantor. McRae v. Stillwell, 111 Ga. 65; Baxter v. Mattox, 106 Ga. 355. The conveyance from Finch to Smith & Tomlin, being a deed and not a lease, is within the purview of the Civil Code, § 3613, that “In a sale of land there is no implied warranty of title.” It is to be treated as a quitclaim deed. McDonald v. Beall, 55 Ga. 289 (9, 10); Wright v. Shorter, 56 Ga. 72 (4, 5); McDonough v. Martin, 88 Ga. 675; Nathans v. Arkwright, 66 Ga. 186. Whether it is such a deed as falls within the purview of Civil Code, § 3609, which provides that a title after-acquired by the vendor inures to the benefit of the vendee, is not in point in this case and is not decided (see Morrison v. Whiteside, 116 Ga. 459, and Taylor v. Wainman, 116 Ga. 795); but it has no express contract of warranty, and none will be implied. This conveyance being a deed and not a lease, this case is distinguishable from Perry v. Wall, 68 Ga. 70, and Williams v. George, 104 Ga. 599; for statutes declaring “that no covenants shall be implied in a conveyance of real estate have been considered as not applying to leases, because they are not conveyances of real estate within the meaning of the statute.” Brewster on Conveyancing, § 211. The case is likewise distinguishable from Sanderlin v. Willis, 94 Ga. 171, and Gibson v. Carreker, 91 Ga. 617; for in those cases there was involved the breach of the ■express covenant of a bond for title. We have thus defined the character of the timber conveyance executed by Finch to McLendon Brothers, as prefatory to the statement, that, since it contained no covenant of warranty, and since none will be implied, Finch committed no contractual breach by his subsequent deed to the railway company. Finch having committed no contractual breach in executing the second conveyance, it follows that the court did not err in disregarding such of the defendant’s pleas as were necessarily founded upon this theory. This is especially applicable to the plea of recoupment.

Further, as to the plea of failure of consideration, let us inquire as to what was the consideration of the notes. It was the execution of the timber conveyance by Finch and the passage of the title to the timber from him to his grantees. Has this consideration failed in any respect? It is not insisted that the conveyance was .not executed, or that the title did not pass. The title did pass, and it is not shown to have failed in the slightest degree; for when it came into conflict with the railroad Compaq’s subsequent deed, it prevailed and damages were recovered for an invasion of it. There was therefore no failure of consideration.

As to the plea in which the defendants sought to set off a portion of the money received by Finch from the' railway company on the theory of money had and received by him for their benefit, we will proceed to discuss this point for the moment, without reference to the fact that the defendants, instead of ratifying the deed Finch made to the railroad company, repudiated it and asserted their superior title and took payment from the company in settlement for the value of the timber taken. In Niles v. Groover, 18 Ga. 461, the Supreme Court held: “Where an owner of land sold a portion thereof, and subsequently sold a right of way to a railroad company passing through both his own land and that which he had previously sold, in an action for money, had and received, brought by a person holding by conveyances under the original vendee against such vendor, she would be entitled to recover, not merely the value of the land so illegally sold by the vendor as a right of way, but the amount received by him for that portion of the land belonging to her which he thus sold; and if, in the sale to the railroad company, all parts of the land conveyed by him were treated as equally valuable, and the purchase-money was paid as a gross sum, then the plaintiff would be entitled to recover a proportion of the purchase-money, corresponding to the proportion 'in which, she held the land sold as to quantity.” In that ease the deed from Niles under which Mrs. Groover claimed was not recorded, and the subsequent deed made to the-railway company was superior to hers; so that no redress was left to her other than to demand that Niles pay her the money which he had received from the sale of her land. We think, as to the ease at bar, that if Finch had received from the railway companj^ any money on account of a sale of the timber belonging to the-defendants, they might have ratified the sale and have held him responsible for so ¡much money as he received on that account. ‘But under the testimony no sum was received by Finch on account of the timber; and this testimony was. competent, for it did not contradict the deed but merely explained the recital as to the consideration. See Civil Code, § 3599; and compare Devlin on Deeds (2d ed.), § 896. Since the plaintiff received no money from the sale of property belonging to the defendant, the plea of set-oif •on this ground necessarily fell.

We do not mean to say that a vendor may not become responsible to his vendee by the execution of a second deed covering the same property, even though the first conveyance be by quitclaim only. One “who fraudulently makes a second deed of conveyance to any land or real estate” is not only guilty of a crime (Penal Code, § 669), but commits an actionable wrong against the person injured. In this case, if Finch, having conveyed the timber to the defendants, although by only a quitclaim deed, had deeded the land, not omitting the timber, to the railroad company and it had taken as a purchaser without notice, the defendants would have had a'cause of action against him; but it would have sounded in tort, and not ex contractu. The plaintiff’s action upon the notes being purely ex contractu, the defendants could not set off against it a cause of, action arising in their favor from the plaintiff’s having made, even though fraudulently and tortiously, and to their damage, a'second deed; for a cause of action arising ex delicto can not be set off against an action ex contractu. Civil Code, § 4944; McLeroy v. Sewell, 73 Ga. 659.

So far we have discussed the questions as if the defendants in the court below had never received satisfaction for these very damages by which they sought to defeat or diminish the plaintiff’s cause of action. However, it appears from the record that McLendon Brothers & Smith, a firm composed of the defendants and another, had sued the railroad company for a recovery of these very damages, and had accepted a sum of money in full settlement of the cause of action. That there can be but one satisfaction for the same cause of action is elementar}'-, and the justness of the rule must appeal to every one not possessed of “an unnatural insensibility to the essential fitness of things.” No matter what right of election the plaintiff may have as to choice of remedies, or as to whom he shall sue or join as parties defendant, or as to waiving tort and suing on contract; still when once he has received satisfaction for the cause of action, his right to further sue in any form forever ends. “A plaintiff may pursue any number of consistent' concurrent remedies against different persons until he obtains satisfaction from some- of them.” Civil Code, § 4945. He is not permitted to pursue inconsistent remedies. Equitable Life Assurance Society v. May, 82 Ga. 646. A careful reading of the opinion by Chief Justice Bleckley in the case just.cited, and an application of the principles there outlined, will make it plain that it is utterly inconsistent that McLendon Brothers should sue and recover from the railroad company on the theory that the conveyance which they held to the timber was perfect as title and superior to the deed of the railroad company, and then afterwards seek to recoup or set off against Finch, on the theory that the second conveyance impaired or invalidated the first conveyance; and likewise it is inconsistent that they should sue and recover from the railroad company on the theory that its payment to Finch'for the timber afforded no protection against their prior title, and after-wards seek to appropriate to their benefit, as money had and received to their use, any portion of the sum so paid to Finch by the company. Nor is it any reply to an application of this principle that in the settlement with the railroad company McLendon Brothers and their partner accepted less than the amount sued for and less than the actual damage- done them. There is no intimation that the settlement was unfair or fraudulent; they voluntarily accepted the sum in full satisfaction; they pursued their action until the defendant therein tendered in settlement a sum which their judgment dictated they should accept. Such a settlement is as complete an estoppel against another suit upon the same cause of action as a judgment recovered and paid off would have been. Atlanta Elevator Co. v. Fulton Mills, 106 Ga. 431. Nor is application of this doctrine to be withheld because the suit and satisfaction against the railroad company was in favor of McLendon Brothers & Smith, while McLendon Brothers alone are involved in the present transaction. It appears from the record that McLendon Brothers, as well as their partner Smith, participated in the settlement made with the railroad company and shared in the proceeds. This estops them. Compare McRae v. Stillwell, 111 Ga. 65.

The verdict directed by the court was the only legal result of the case. Judgment affirmed.