author: Bboyles, P. J.

text:
    10422.
    Wood et al. v. City of Rome.
   Bboyles, P. J.

1. When the affidavit of illegality is construed as a whole, and most strongly (as it must be) against the pleader, the facts therein stated- show by clear implication that some amount must be due from the affiants to the City of Rome for the paving of the street uptfn which their property abutted; and, it not being alleged therein that^uch amount had "been paid or tendered, the affidavit of illegality was properly dismissed on the general demurrer interposed. See Ga. L. 1909, p. 1255, sec. 71 (ejf This is true although it is alleged in the affidavit that “no part of the sum for which said fi. fa. was issued is due,” and it is “expressly denied” that deponents are “legally chargeable with any portion of the cost of said pavement.” These allegations, in the light of the affidavit as a whole and the facts therein stated, are mere conclusions of the affiants and are without any basis of fact to rest upon. See, in this connection, Hardwick v. Dalton, 140 Ga. 633 (79 S. E. 553); Burns v. Atlanta, 22 Ga. App. 381 (96 S. E. 11) ; s. c. (affirmed), 148 Ga. 549 (97 S. E. 536).

Decided July 22, 1919.

Affidavit of illegality; from Floyd superior court—Judge Wright. February 4, 1919.

M. B. Eubanks, for plaintiff in error.

Max Meyerhardt, contra.

(a) The conclusion of the affiants that no amount is due can not be supported by the fact, stated in the affidavit, that their property has been damaged in an amount larger than the amount of the fl. fa. against them, by a change of grade in the street. This is merely an attempt to set up an unliquidated demand against a judgment demand, and this could not be done in the affidavit of illegality in this case. Hawkins v. County of Sumter, 57 Ga. 166; Leavel v. Frey, 133 Ga. 723 (66 S. E. 916).

2. No ground of the affidavit of illegality was meritorious.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


source: Caselaw Access Project

author: Broyles, P. J.

license: Public Domain

text:
    10427.
    EAST ATLANTA BANK v. WARREN et al.

    Ordinarily the failure to z-eeord a mortgage, given to secure the paymezzt of a note, will not release the surety ozz the note unless the mortgage and the note were executed contemporaneously. However, under the facts of the instant case, the failure to record the mortgage given to secuz'e the payment of the debt evidenced by the note sued upon released the surety, although the note and the mortgage were not given contemporaneously.
    Decided July 22, 1919.
    Complaint; from DeKalb superior court—Judge Smith. February 14, 1919.

      Burress & Dillard, for plaintiff.

      F. A. Quillian, Alonzo Field, for defendant.
   Broyles, P. J.

The note sued upon was given as a renewal of a note past due. M. L. Warren was merely a surety on the note®Sued upon, and this fact was known to the plaintiff, the owner of the note. The note was executed on August 31, 1915. On July 6, 1915, the plaintiff took a mortgage, or loan deed, from the makers of the note, to secure the payment of another note due by them and also any other indebtedness the makers might owe the plaintiff. When this mortgage was given, the makers owed the plaintiff the debt for which the note sued upon was subsequently given. This mortgage was never recorded. The makers of the note went into bankruptcy, the plaintiff proved its claim in the bankrupt court, abandoned its mortgage, and made no effort to foreclose it. The surety testified that one of the inducements held out to him by the plaintiff to sign the note sued upon was that the mortgage had been taken from the makers of the note to secure its payment.

Under these circumstances we think the failure of the owner of the note to record the mortgage increased the risk of the surety and discharged him. The real test is not whether the note and the mortgage to secure it were given contemporaneously, but whether, under the facts stated, the failure to place the mortgage on record increased the surety’s risk. The fact that the makers of the mortgage refused to sign it until the mortgagee agreed not to record it would not prevent the surety from being released, he not being a party to the agreement and being in ignorance thereof at the time he was induced to sign the note sued upon. The surety did not contend that the note and the mortgage were executed contemporaneously, and there was no evidence that they were. The court therefore erred in instructing the jury that the surety did so contend, and in charging them, in substance, that it was for them to say whether or not the note and the mortgage were given contemporaneously. Under the above ruling, however, this error was harmless and does not require -a new trial.

The pleadings and the evidence were sufficient to authorize the charge upon the subject of usury. The other special assignments of error show no cause for a new trial. The verdict was amply supported by the evidence, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


text:
    10435.
    Martin & Son v. Harrison.
   Broyles, P. J.

1. The purchaser of a horse or mule is not entitled to a rescission of the trade unless he shows, among other things, actual fraud on the part of the vendor; or unless he shows, among other things, a special agreement between the parties, as a part of the contract, that if the animal proved to be unsound the purchaser should have the right to return it to the vendor and rescind the trade. Stovall v. McBrayer, 20 Ga. App. 93 (92 S. E. 543).

Decided July 22, 1919.

Action for breach of warranty; from city court of Hall county— Judge Wheeler. February 17, 1919.

B. P. Caillard Jr., for plaintiffs.

W. A. Charters, contra.

2. Under the above rulings and the facts of the instant case, the plaintiff in the lower court, the purchaser of the mule, was not entitled to a rescission of the trade, and the court did not err in awarding a nonsuit.

3. Under the particular facts of this case, it is immaterial whether the court erred in disallowing the proffered amendment to the petition. The original petition set out, in substance, that the plaintiff was entitled to a rescission of the trade because of actual fraud on the part of the defendant. The proffered amendment set out in substance that the plaintiff was entitled to a rescission of the trade (irrespective of actual fraud on the part of the defendant) because of an agreement entered into by the parties, as a part of the contract, that if the mule proved to be unsound the plaintiff would have the right to return it and rescind the trade. It appears from the bill of exceptions that the amendment was offered after all the evidence for the plaintiff had been presented, and it is alleged therein that the amendment “was germane and adjusted to the facts as developed by the testimony in said case.” This allegation is not “adjusted to the facts as developed by the testimony.” If the amendment had been allowed, it would not have been supported by the evidence adduced, and a nonsuit would still have been proper.

Judgment affirmed.

Bloodworth and Stephens, JJ., coneur.


text:
    10441.
    Fulton Bag and Cotton Mills v. Camp.
    Decided July 22, 1919.
    Action for damages; from Fulton superior court—Judge Bell. February 8, 1919.
    From the petition it appears that the plaintiff’s husband, a machinist employed by the defendant in its factory, received injuries which caused his death, from the bursting of a pipe in the factory when he was placing around the pipe, under the direction of the defendant’s foreman, a clamp to stop a leak from a crack in it. The petition as amended alleges, in substance: The plaintiff’s husband was for a number of years employed by the defendant as a machinist, and his duties were the usual and ordinary duties of a machinist in and about the defendant’s machine-shop, which duties were working with machinery such as planes, lathes, and drills, and the making of repair parts for machinery in use in and about the factory, not including jointing and fitting steam-pipes nor dealing with steam in any capacity. The defendant -employed as foreman one J. P. Bevil, whose authority was that of general foreman in charge of directing, supervising, employing, and discharging servants employed in the machine-shop, boiler-rooms, and other parts of the factory, and whose duty it was to give orders and lay out work for the employees in this part of the factory; he was the vice-principal of the master and chargeable with the entire care and direction of the work done by the plaintiff’s husband in connection with his employment. On May 20, ¿918, about 10:30 a. m., while the plaintiff’s husband was engaged in the usual duties of his employment in the machine-shop,—that is, the making of certain guards to go over the belts of the machines operated by pickers in the mills,—the said foreman came to him, and, showing him a short piece of pipe, four or five inches in diameter, having a small crack in it, ordered that he make a clamp to fit and go around this piece of pipe, to be fastened with a bolt for the purpose of drawing the crack in the pipe together. In pursuance of the order he proceeded to make such a clamp, and when it was completed he and his helper, Clarence Pharr, were ordered by the foreman to follow him, and he said he would direct what was to be done with the clamp and pipe. The foreman then directed them into the boiler-room of the factory, to a ladder leading up on top of the casement enclosing the boiler, and ordered that they proceed up the ladder on top of the boiler-casement. There they found a pipe which connected the water-feed pump with the boiler and through which the boiler was supplied with water for use in making steam; and in this pipe, a short distance above the brick encasement of the boiler, there was a cast-iron L of the same dimensions as the one which the foreman had brought to the plaintiff’s husband to be fitted with a clamp; and from a small crack in it, similar to the crack in the sample furnished by the foreman,- a small quantity of steam was issuing. The foreman ordered that they fasten the clamp around this L and draw it tight so as to stop the small leak in it, and “thereby save his having to shut the factory down and put in a new L.” In obedience to this order the plaintiff’s husband proceeded as directed, placing the clamp around the pipe, and, having just put the bolt through it, turned to the foreman and informed him that the pipe was too hot to handle. Just as he spoke the pipe burst, emitting large quantities of steam and hot water, scalding him on all parts of his body; and from these burns he died.
   Bboyles, P. J.

The petition as amended was not subject to any ground of the demurrer interposed, and the court properly overruled the demurrer. Judgment affirmed.

Bloodworth and Stephens, JJ., coneur.

Allegations are made as to the training, experience, skill, and knowledge of the foreman as a mechanic in the fitting and repairing of such steam pipes, his knowledge of the power and strength of steam upon them, his previous inspection of this L, and his knowledge of its defective condition for three or four hours before the bursting of the pipe. It is alleged that the foreman knew, or ought to have known, that in ordef to make the L safe for such repairs as he had ordered, the fires should have been drawn from the boiler or fire-boxes, and the boiler and the pipe allowed to cool off, and the steam pressure reduced below any damage of bursting the L, or the feed-pump should have been shut down and the supply of water through the pipe stopped, and the cap should have been removed from the boiler check-valve and the steam thereby allowed to escape from the pipe, and the pressure on the pipe therefore reduced, before repairs of any kind were attempted upon it; which was not done by the foreman or any one else; and, on account of his failure to do one or the other of these, the steam pressure in the pipe and L was 150 to 250 pounds per square inch; which together with the defect in the pipe or L caused it to burst. The amount of the steam pressure in the pipe and L was not known to the plaintiff’s husband, nor did it fall within his duties to have any knowledge of this or to make any inspection to discover it, but it did fall within the duties of the foreman. Nor did the plaintiff’s husband have any knowledge of the effect of the steam pressure upon the defective L, it not falling within his duties to have such knowledge; and such steam pressure and the consequent lurking danger was therefore latent and hidden, so far as his knowledge was concerned, but all of this fell within the knowledge and duties of the foreman, and therefore the foreman knew or ought to have known that the ordering of the plaintiff’s husband to make the described repairs on the L was ordering him into, a dangerous place, and likely to cause him injury. The work referred to—the fastening of a clamp around a live steam pipe—was outside his usual duties in connection with his employment as a machinist, he never having been called upon before to do work of that character, nor is it contemplated in the work and employment of a machinist. No attempt should have been made to repair the pipe while it contained steam and hot water under high pressure, but even if there are conditions under which such repairs might be made with safety, they would fall peculiarly within the duties of a steam-pipe fitter or one with special knowledge of the power and effect of steam upon such a pipe; and this knowledge was possessed by the foreman or should have been, and was not possessed by the plaintiff’s husband and was not within the scope of his duties. The plaintiff’s husband did not know until he had ascended upon the boiler casement, and the foreman had pointed out to him what was to be done, that the clamp he had made was to be put around the L. There are additional allegations as to his ignorance of the danger and his reliance on the skill and knowledge of the foreman. It is alleged that he was free from fault, and that the defendant, through its agent, was negligent (a) in ordering him into a place of great danger which was known or should have been known to the defendant, (5) in ordering him to work upon the L when filie 1 with a high pressure of steam and hot water, which was unknown to him, instead of drawing the fires or taking any of the precautions specified above, and (c) in failing to warn him of the danger incident to the work. His age and earning capacity are stated.

The defendant demurred to the petition generally and specially, and the court overruled the demurrer.

Rosser, Slaton, Phillips &■ Sopldns, for plaintiff in error,

cited: 84 Ga. 14, 16; 1 Ga. App. 810; 6 Ga. App. 831; Bailey, Master and Servant, 909, 911; 134 Ga. 712; Beach, Contrib. Neg. § 360; 18 Ga. App. 117; 99 Ga. 283; 92 Ga. 495; 119 Mich. 552; Labatt, M. & S. 67; 1 Ga. App. 717; Civil Code (1910), § 3131.

Anderson & Slate, J. L. Anderson, contra,

cited: 1 Ga. App. 259; 1 Ga. App. 409; 5 Ga. App. 143, 154; 6 Ga. App. 718; 8 Ga. App. 618 (2), 622; 21 Ga. App. 340 (3), 349; 137 Ga. 615; 18 Ruling Case Law, 548-50, 643-4; 4 Labatt, M. & S. § 1313 (p. 3798), § 1362 (p. 3920); 103 Ga. 823 (2); 104 Ga. 582, 585; 105 Ga. 135 (4); 22 Ga. App. 309; 97 S. E. (N.C.) 48, 149; 23 Ga. App. 47.


author: Stephens, J.

text:
    10479.
    Barlow v. The State.
    Decided July 22, 1919.
    Accusation of transporting liquor; from city court of Eastman— Judge Griffin. February 22, 1919.

      J. H. Roberts, E. W. Nalley, for plaintiff in error.

      D. D. Smith, solicitor, contra.
   Stephens, J.

1. The court did not abuse its discretion in overruling the motion for a continuance based upon the absence of an alleged material witness, it not appearing that the witness resided within the county. The witness being in the United States Army, there was no reason to expect that he would be present at the next term of the court.

2. The evidence authorized the verdict, which was approved by the trial judge. Judgment affirmed.

Broyles, P. J., and Bloodworih, J., concur.


author: Bloodworth, J. Broyles, P. J.,

text:
    10488.
    WHITE v. THE STATE.
    “The law embraced in section 73 of the Penal Code does not qualify or limit the law of justifiable homicide as laid down in sections 70 and 71 of that code. The section first mentioned applies exclusively to cases of self defense from danger to life arising during the progress of a fight wherein both parties had been at fault. The other two sections are applicable when the homicide is committed in good faith to prevent the perpetration of any of the offenses mentioned in section 70, or under the fears of a reasonable man that such an offense will be perpetrated unless the person who is actually or apparently about to commit it be slain. Instructions as to these two separate branches of law of justifiable homicide should not be so given as to confuse the one with the other.”

      (a) “Where an erroneous rule of law is given to the jury on a material issue in the case, and is of such a nature as is calculated to mislead them, a new trial will be granted notwithstanding the correct rule may have been announced in other portions of the charge.”
    Decided July 22, 1919.
    Conviction of manslaughter; from Butts superior court—Judge Searcy. March 18, 1919.

      H. M. Fletcher, for plaintiff in error.

      E. M. Owen, solicitor-general, W. E. Watkins, contra.
   Bloodworth, J.

Charlie White was indicted for murder and convicted of voluntary manslaughter, and, complaining of the over' ruling of the motion for new trial, has brought his case to this court for review.

The trial judge charged the jury in part as follows: “Justifiable homicide, so far as the definition is applicable to this case, is the killing of a human being in self-defense or defense of habitation or property, against one who manifestly intends or endeavors by violence or surprise to commit a felony on either. If a person kill another in his defense it must appear that the danger was so urgent and pressing at the time of the killing that in order to save his own life the killing of the other was absolutely necessary; and it must appear also that the person killed was the assailant or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given. I charge you that the expression ‘felony,’ as used here, means an offense for which the offender if convicted would be liable to be punished by death or imprisonment in penitentiary. The law provides that justifiable homicide is the killing of a human being in self-defense or in defense of habitation, property, or person against one who manifestly intends or endeavors by violence or surprise to commit a felony on either. The bare fear of any of these offenses to prevent which the homicide is alleged to have been committed shall not be sufficient to justify the killing. It must appear that the circumstances at the time were sufficient to excite the fears of a reasonable man, and that the party killing really acted under the influence of these fears and not in a spirit of revenge.”

The first ground of the amendment to the motion for new trial complains that this charge is error for the reason hereinafter stated. In a note to this ground the trial judge says that section 73 of the Penal Code was given in charge at the request of counsel for the defendant. This being true, the defendant could not complain that section 73 was given in charge, but he can complain that it was given in such connection as to confuse “the defense of justifiable homicide under the fears of a reasonable man, based upon the provisions of the two related sections 70 and 71 of the Criminal Code, with the defense of absolute necessity to kill in order to save one’s life, which is contained in section 73 of said Code;” and this is the reason assigned why the charge is erroneous. Under repeated rulings of our Supreme Court we think this point is well taken, even though in our opinion the facts demanded that section 73 be given in charge to the jury.

The first headnote of the decision in Pugh v. State, 114 Ga. 16 (39 S. E. 875), is as follows: “The law embraced in section 73 of the Penal Code does not qualify or limit the law of justifiable homicide as contained in sections 70 and 71. While the law embodied in sections 70 and 71, as well as that embodied in section 73, may both be properly given in the same case, the provisions of the different sections should not be charged in such a way as to leave the impression upon the jury that they are both applicable to the same state of facts.” In Franklin v. State, 146 Ga. 42 (90 S. E. 481), Mr. Justice Beck said: “It was proper in this case to give §§ 70, 71 and 73 of the Penal Code in charge to the jury, but § 73 should not have been charged in such a way as to make it likely that the provisions of that section would be confused in the minds of the jury with the provisions of §§ 70 and 71. It is true that the judge told the jury that the provisions of § 73 were to be kept distinct from the provisions of sections 70 and 71, but that is not sufficient. How could a layman be expected to keep the provisions of § 73 and of the other sections referred to distinct, without instructions as to the case in which the principles of section 73 are applicable? In the case of Pryer v. State, 128 Ga. 28 (57 S. E. 93), it is said: ‘We would suggest that it would avoid much confusion if, where it is proper to give in charge § 73 of the Penal Code, the presiding judge would give the jury some instruction as to cases in which it is applicable, instead of charging it immediately after sections 70 and 71, without any explanation/ Section 73 is applicable only in the cases of mutual combat, as has been repeatedly ruled, and the jury ought to be so informed in appropriate instructions; or at least the jury should he told in what eases the provisions of section 73 are applicable. Otherwise the inevitable tendency is to confuse that section with the provisions of sections 70 and 71, where all three of the sections are given. Warrick v. State, 125 Ga. 133, 141 (53 S. E. 1027).”

In Ragland v. Stale, 111 Ga. 216 (36 S. E. 684), Mr. Justice Lumpkin said: “Tt is justifiable homicide, under our law, for one to kill another who is manifestly intending or endeavoring by violence or surprise to commit a felony on his person; and this is true without regard to the grade of felony; and it is not a correct proposition of law, that when one kills another to prevent the commission of a felony on his person, the danger must be so urgent and pressing at the time of the killing, that, in order to save his own life, the killing of the other was necessary. On the contrary, it is only necessary to be shown that the circumstances were sufficient to excite the fears of a reasonable man that such felony was about to be committed upon him, in order to justify the homicide. Otherwise, a woman who killed a man to prevent the rape of her person, or one who slew a burglar to prevent the burglary of his home, would not be justifiable. In neither of these cases was the life of the slayer involved, but in each a felony was about to be committed. A person in this State may kill another for other purposes than to save his own life and be justified, if he do so to prevent any felony from being committed on his habitation, person or property; his defense is complete when to a jury it appears that the circumstances were sufficient to excite the fears of a reasonable man that a felony was about to be committed, and that he killed to prevent its commission. The latter part of the charge as given applies only to cases of homicide where the parties had previously been engaged in mutual combat. Powell v. State, 101 Ga. 9 [29 S. E. 309, 65 Am. St. E. 277]; Stubbs v. State, 110 Ga. 916 [36 S. E. 200]. It is doubtless true that the presiding judge recognized these distinctions, but, inasmuch as the two principles enunciated in his charge are directly coupled together without a distinction having been drawn, the jury might have understood, from the charge as set out in the ground of the motion, that while it was justifiable for one to kill another to prevent the commission of a felony on his person, it must at the same time appear that the danger was so urgent and pressing at the time of the killing that it was necessary for the slayer to take the life of the deceased, in order to save his own life. This is not and has never been the law.” See also White v. State, 147 Ga. 378 (5), 383 (94 S. E. 222); Pryer v. State, 128 Ga. 28 (57 S. E. 93); Smith v. State, 119 Ga. 564 (3) (46 S. E. 846); Jordan v. State, 117 Ga. 405 (2) (43 S. E. 747); Powell v. State, 101 Ga. 11 (6), 22 (6-7), supra.

From the charge given in the instant case, the jury might have concluded that the provisions of sections 70 and 71 and of section 73 were applicable to the same state of facts. In Nunn v. State, 14 Ga. App. 699 (83 S. E. 58), Judge Eoan says: “It is impossible to tell which portion of the charge the jury applied to the evidence when arriving at its verdict,—the law as laid down by section 73, read to them by the court without comment, or the latter part of the charge whereby the court seemingly recalled the instructions given on this section. Eor this reason the latter portion of the court’s charge, while it is, correct law in the abstract, is in direct conflict with the letter of the law embodied in section 73 of the Penal Code, and it does not operate to modify the law as laid down in that section any more than the law as laid down in that section modifies the latter portion of the charge. It would be well for the trial judges, in giving in charge section 73 of the Penal Code where it is applicable, to instruct the jury, in immediate connection therewith, under what circumstances it is applicable. In this way such confusion can be avoided. See Powell v. State, 101 Ga. 23 (29 S. E. 309, 65 Am. St. R. 277); Pugh v. State, supra; Warrick v. State, 125 Ga. 141 (53 S. E. 1027); Pryer v. State, 128 Ga. 28 (57 S. E. 93); Lightsy v. State, 2 Ga. App. 442 (58 S. E. 686); Holland v. State, 3 Ga. App. 465 (60 S. E. 205); McAllister v. State, 7 Ga. App. 541 (67 S. E. 231).”

Even though the judge, after giving in charge to the jury erroneous instructions, did give to the jury a correct charge, he did not withdraw the erroneous charge or state to the jury that it was erroneous. “Where an erroneous instruction is given on a material issue, the error is not rendered harmless by a subsequent statement of the judge that he has given the correct rule in another part of his charge. He must make it plain and clear to the jury that the first instruction was incorrect and is expressly retracted, and that the subsequent statement is correct and is substituted for the incorrect one; and it must appear therefore that the jury could not have been misled or confused by the two inconsistent statements. Pelham Mfg. Co. v. Powell, 6 Ga. App. 309 (4) (64 S. E. 1116).” See Mayor &c. of Madison v. Bearden, 22 Ga. App. 378 (96 S. E. 572), and cases cited; Central of Ga. Ry. Co. v. Deas, 22 Ga. App. 428 (96 S. E. 267). The jury must take the whole charge as the law, and it is not for them to select one part to the exclusion of another, nor to decide whether one part cures or qualifies another, they being instructed so to do by the judge.” Savannah, Florida & Western Ry. Co. v. Hatcher, 118 Ga. 273 (45 S. E. 239).

Because of this error iu the charge we think a new trial should he ordered. On account of this direction it is unnecessary to consider other allegations of error.

Judgment reversed.

Stephens, J., concurs. Broyles, P. J., dissents.

Broyles, P. J.,

dissenting. The reason why it is generally reversible error for the court to charge sections 70, 71, and 73 of the Penal Code together, without proper explanation, is that the jury may be misled into thinking that even though the defendant may have killed the deceased under the fears of a reasonable man that a felony was about to be committed on his person, the killing would not be justifiable unless it appeared to him that the danger was so urgent and pressing at the time of the killing that, in order to save his own life, the killing of the other was absolutely necessary. In the instant case I do not see how the jury could have been so misled, for, after charging the above three code-sections (and all three were applicable), the jury were clearly and correctly instructed, several times, that if the circumstances were sufficient to excite the fears of a reasonable man that a felony was about to be committed on him, the killing would be justifiable and the defendant should be acquitted. Immediately after the excerpt from the charge complained of, the court charged as follows: “The fears of a person should be the fears of a reasonable man—one reasonably courageous, reasonably self-possessed,— not those of a coward. If the circumstances were sufficient to excite the fears of a reasonable man that a felony was about to be inflicted upon him, then the killing would he presumed to be the result of such fears and he would he justifiable. If the jury have a reasonable doubt as to whether the circumstances were sufficient to excite the fears of a reasonable man, then the killing would he justifiable. The killing is not justifiable because one feels that he has reason to fear that he will be injured without regard to the character of the injury some person is about to inflict upon him. If the assailant intended or endeavored to commit a misdemeanor or a trespass only upon the person, the killing of such person would be voluntary manslaughter. But if he intended to commit a felonious assault, then the killing would b§ justifiable. If the circumstances are not such as to excite the fears of a reasonable man that he is in any danger at all, and when he is in no danger he shot and killed another with malice, then such killing would be murder. If the circumstances were sufficient to excite the fears of a reasonable man that an injury was about to be inflicted upon him less than a felony, under those circumstances such a killing would be voluntary manslaughter. When the circumstances are sufficient to excite the fears of a reasonable man that a felony is about to be inflicted upon him, and under those circumstances he kills another, then the killing would be justifiable. In order to justify the killing on the ground that the accused acted under the fears of a reasonable man that a felony was about to be inflicted upon him, it must appear that there was real or apparent danger sufficient to justify the belief that a felony was about to be inflicted upon him. If the circumstances surrounding the defendant at the time, as they appeared to him at that time, situated as he was, were sufficient to excite the fears of a reasonable man that there was real or apparent danger that a felony was about to be inflicted upon him, and he acted under the influence of those fears, and not in a spirit of revenge, and killed another, then such, killing would be justifiable.” And the very last part of the charge is as follows: "If you do not believe he is guilty of either offense [murder or voluntary manslaughter], or have reasonable doubt of it, or if you find he was justified in doing whatever he did do, or that he acted under the fear of a reasonable man that a felony was about to be inflicted upon him, or if you have a reasonable doubt of the guilt of the accused of either, offense named, it would be your duty to acquit him, and the form of your verdict would be 'We, the jury, find the defendant not guilty.’ ”

In my opinion, in the light of the entire charge, the excerpt from the charge complained of did not mislead the jury into thinking that if the accused killed the deceased under the fears of a reasonable man that a felony was about to be committed upon him, the killing would nevertheless not be justifiable unless it appeared to him that the danger was so urgent and pressing that in order to save his own life the killing of the other was absolutely necessary. I think the judgment should be affirmed.


text:
    10506.
    Jones v. The State.
    Decided July 22, 1919.
    Indictment for larceny; from Bibb superior court—Judge Mathews. April 5, 1919.

      Hubert F. Rawls, for plaintiff in error.

      Charles H. Garrett, solicitor-general pro tem.

   Stephens, J.

1. Where the trial judge in his charge to the jury in a criminal case properly defines the offense with which the defendant stands charged, it is not error to fail to define such offense in the precise language of the Penal Code.

2. The defendant was charged with a felony, the punishment for which may, on recommendation by the jury when approved by the trial judge, be as for a misdemeanor. The trial judge fully instructed the jury that in the event of the defendant’s conviction, should they recommend that he be punished as for a misdemeanor, this recommendation would be carried out only in the discretion of the trial judge. The charge was not error as being confusing in this respect, as set out in the 5th ground of the motion for a new trial.

3. The jury was fully instructed as to the degree of proof required to convict defendant as. principal in the second degree, and the trial judge did not err in failing to charge as set out in the 6th ground of the motion for a new trial. Moreover, the charge given was a correct statement of the law. “A correct statement of law embraced in a charge to the jury is not erroneous because the court failed in. the same connection to give to the jury other appropriate instructions.” Hill v. State, 18 Ga. App. 259 (89 S. E. 351); Lucas v. State, 110 Ga. 756 (36 S. E. 87); Conley v. State, 21 Ga. App. 134 (94 S. E. 261).

4. The trial judge did not err in charging the jury as to the degree of proof necessary to convict upon circumstantial evidence.

5. Where the solicitor-general, in his argument to the jury, stated that he had “run down a gang of thieves who had been stealing automobiles,” that the defendant was “a thug and a thief,” and after-wards stated in' the presence of the jury that such remarks were improper, and whore the trial judge instructed the jury that such remarks were improper and should not be considered by them, that the jury should try the ease on the evidence, there was no error in failing to declare a mistrial upon the ground that such remarks were improper and prejudicial.

6. The remaining special grounds of the motion for new trial, not being argued in the brief of counsel for the plaintiff in error, are treated by this court as abandoned.

7. The evidence authorizes the verdict, which has the approval of the trial judge.

Judgment affirmed.

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


text:
    10515.
    Gibbons v. The State.
    Decided July 22, 1919.
    Indictment for possession of liquor; from Floyd superior court-judge Wright. March 31, 1919.

      W. B. Mebane, for plaintiff in error.

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

1. Where in a criminal case the defendant’s guilt was clearly and positively established by legal and competent testimony of unimpeached witnesses, the admission of hearsay testimony from another witness, even as to a material fact, was not prejudicial to the defendant, when its exclusion could not have produced a different verdict. The admission of such evidence was harmless and affords no ground for a new trial.

2.- The verdict is supported by the evidence.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    10527.
    CAMPBELL v. THE STATE.
    1. A continuance was not required on the ground that certain jurors were disqualified to try the ease.
    2. The statement to the jury by a bailiff while they were considering the case, that the defendant was tried and acquitted in another ease while they were out, was not cause for a new trial.
    3. Alleged exeessiveness of a sentence imposing a punishment within the statutory limit for the crime of which the accused was convicted is not cause for a new trial.
    4. The verdict was authorized by evidence.
    Decided July 22, 1919.
    Conviction of assult and battery; from Cobb superior court— Judge Morris. April 13, 1919.

      G. M. Dobbs, Herbert Clay, for plaintiff in error.

      John T. Dorsey, solicitor-general, William Butt, contra.
   Bloodworth, J.

In the motion for a new trial it is alleged that the court erred in refusing to continue- the case and to furnish the defendant’s counsel “with a list of 34 jurors that had not tried Mrs. Campbell” (his wife); that on the day before the day of his trial she was tried in two eases for cruelty to children at a certain orphans’ home, and he was charged with assault and battery on an inmate of the home; that “there were only 36 jurors impanelled at that time in Cobb superior court; that 34 of these jurors had tried a case against defendant’s wife,—13 in one

case and 12 in another,—and that this did not leave 24 jurors for defendant to strike an impartial jury from.”

Granting that some of the jurors in attendance on the court were disqualified to try the accused, this would not be a good ground for a continuance of the ease. Humphries v. State, 100 Ga. 260 (2) (28 S. E. 25); Sutton v. State, 18 Ga. App. 28 (88 S. E. 744).

If the objection urged against the jurors was cause for challenge at all, it should have been made to the polls. Schnell v. State, 92 Ga. 459 (17 S. E. 966); Bryan v. State, 124 Ga. 79, 80 (52 S. E. 298), and cases cited; Coleman v. State, 141 Ga. 731, 732 (82 S. E. 228), and cases cited; Throckmorton v. State, 23 Ga. App. 112 (97 S. E. 664). The judge complied with the request of counsel for the accused and allowed the jurors to be examined on their voire dire.

It is assigned as error that “while the jury was eonsider•ing this case one of the bailiffs told a juror, while they were at breakfast, ‘that they had tried 0. C. Campbell [the .defendant] while this jury was out, in another ease, and had turned him aloose.” It is insisted that “this communication was unlawful and illegal, and prejudicial to the rights of defendant.” The oath which the law of this State prescribes for bailiffs who have charge of juries during the trial of cases provides that they shall make no communication to the jury except by leave of the court. Had the bailiff in this case not overlooked his oath, he would not have communicated to the jury the fact that the accused had been acquitted in the other case. However, we cannot see how this conduct of the bailiff could have resulted in any ill effects to the accused. We cannot conceive that^a jury of twelve upright and intelligent men would violate their oaths and be led into the error of rendering a verdict contrary to the facts, simply because a jury in another case against the same defendant had acquitted him. Suppose the verdict first rendered had been returned before the jury in the second case had been stricken, could it be said that the jurors in the court-room were disqualified simply because they knew that the accused had been acquitted in the first ease tried? Surely not. We do not think the trial judge abused his discretion in overruling this ground of the motion for a new trial.

It is insisted that a new trial should be granted because “the sentence in this ease of twelve months in the State farm is excessive.” “An assignment of error in a motion for new trial, that a sentence within the limits fixed by law is excessive and too harsh under the facts and circumstances of the case, presents no reason for interference by the court. McCollough v. State, 11 Ga. App. 612 (6) (76 S. E. 393). See also Truitt v. State, 124 Ga. 657 (52 S. E. 890).” Weldon v. State, 21 Ga. App. 332 (9) (94 S. E. 327); McLeod v. State, 22 Ga. App. 241 (4) (95 S. E. 934).

There is some evidence to support the verdict. “This court, by the constitutional amendment creating it, is limited in jurisdiction to the correction of errors of law alone, and therefore has no power to grant a new trial on the ground that the verdict is strongly contrary to thé weight of the evidence, if there is any evidence at all to support it.” Edge v. Thomas, 9 Ga. App. 559 (71 S. E. 875); Toole v. Jones, 19 Ga. App. 24 (90 S. E. 732); Cook v. McMurria, 19 Ga. App. 491 S. E. 785).

Judgment affirmed.

Broyles, P. J., and Sleph ens, J., concur.


text:
    10549.
    TANNER et al. v. THE STATE.
    1. Where an indictment charges robbery by force and robbery by intimidation, and a general verdict of guilty is returned, it -will be construed as a verdict finding defendant guilty of the graver offense, robbery by force.
    2. “Actual force, in our definition of robbery, implies personal violence. If there is any injury done to the person, or if there is a struggle to retain possession of the property, before it is taken, it is the force of our Penal Code.”
    (<?) “Intimidation, in our Code, is the same with ‘putting in fear’ at common law, and is constructive force.”
    Decided July 22, 1919.
    Indictment for robbery; from Eulton superior court—Judge Humphries. April 13, 1919.

      II. A. Allen, W. Z. Heyward, E. G. Bentley, W. C. Cousins, for plaintiff in error.

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

The evidence in this case shows that the accused, Tanner and Washington, conspired to rob Smith, and, with no one else except the three present, Washington put a -pistol “right in” the face of Smiih, commanded him to hold up his hands, and, while his hands were up, Tanner, without the consent of Smith, put his hands in the pockets of Smith and took therefrom money belonging to Smith. The indictment charged Tanner and Washington with robbery “by force and intimidation.” There was a general verdict of guilty. A motion for a new trial was overruled, and the movants excepted. It was insisted that this verdict should be “construed as a verdict finding the defendants guilty of the graver offense, to wit, robbery by force,” and “that this verdict was not supported by the evidence, and was, therefore, contrary to law.”

We agree with both of these contentions. In Moran v. State, 125 Ga. 35 (53 S. E. 806), the Supreme Court said: “There was a general verdict of guilty, which would be applied to that count in the indictment which charged robbery by force.” In Story v. State, 12 Ga. App. 644 (77 S. E. 914), this court said (p. 645): “It is well settled, of course, that robbery by force and robbery by intimidation, being each merely different grades of the same offense, may be joined in the same count, and that the defendant may be convicted of either, according to the proof. Long v. State, 12 Ga. 293; Fanning v. State, 66 Ga. 167; Lampkin v. State, 87 Ga. 516 (13 S. E. 523). It is equally well settled that where the indictment is of this character, and a general verdict of guilty is returned, it will be construed to be a verdict finding the defendant guilty of the graver offense, to wit, robbery by force. Harris v. State, 1 Ga. App. 136 (57 S. E. 937), and citations.” These decisions settle the first insistence of the plaintiffs in error.

Is there any evidence to show robbery by force ? No. The salient facts of the case are set out above. These facts show the “intimidation,” but not the “force” contemplated by out statute. Judge Powell, speaking for this court in Johnson v. State, 1 Ga. App. 730 (57 S. E. 1056), said: “The ‘force’ in our definition is the same as the ‘violence’ of the common-law definition; and the ‘intimidation’ in ours is synonomous with the ‘putting in fear’ in the common law.” The 9th and 10th headnotes of the decision in the case of Long v. State, 12 Ga. 294, are as follows: (9) “Actual force, in our definition of robbery, implies personal violence. If there is any injury done to the person, or if there is a struggle to retain possession of the property, before it is taken, it is the force of our Penal Code.” (10) “Intimidation, in our Code, is the same with ‘putting • in fear’ at common law, and is constructive force. "When a party is put in fear of an injury to his person or his property, or to his character, by a charge of an unnatural crime, it is robbery by intimidation.” The 12th headnote in that case is as follows: “If- the.transaction be attended with such circumstances of terror, such threatening, by word or gesture, as in common experience are likely to create an apprehension of danger, and to induce a man to part with his property for the safety of his person, he is put in fear of his person, and it is robbery.” It must be borne in mind that “at common law it is held that if property is taken by either of these means, against the will of the person) such taking will be robbery. At common law, therefore, there was but one offense, and fear was held to be constructive violence.” Long v. State, supra (p. 315). Hence the robbery referred to in the 12th headnote just quoted from the Long case would, under our law, be robbery by intimidation. In discussing the definition of robbery in our cqde, Judge Nisbet in that case (pp. 314, 315) said: “Does the Code make two offenses? We think not; but creates one offence, to wit: robbery, and makes two grades of that offence. One robbery by force, which is the highest grade, and punishable with the longest term of imprisonment in the penitentiary; and the other robbery by intimidation, which is the lower grade, and punished with a shorter term of imprisonment. It defines robbery thus: 'robbery is the wrongful, fraudulent and violent taking of money, goods or chattels, from the person of another, by force or intimidation, without the consent of the owner.’ Prince, 678. The offence is single; and it is robbery if committed by force, and not the less robbery when perpetrated by intimidation. Force is the ruling element in the offence. When the Code speaks of force, it means actual violence; and when it speaks of intimidation, it still means force; not actual and direct, but exerted upon the person robbed, by operating upon his fears— the fear of injury to his person, or property, or character. The law considers, however, that actual violence is attended with more immediate and serious consequences than violence by intimidation; and therefore it is that a distinction is made in the punishment. The former constitutes the offence with greater enormity. The offence, I conclude, is single, for the reason stated, and the element of force is necessary to constitute it in either case. It was so considered at common law.” The brief of the solicitor-general in the instant case says: “Ours is the usual case, and exactly like the case of Harris v. State, 1 Ga. App. 136 (2).” The Harris case is distinguished from this case by the fact that in that case one of the conspirators, at the point of a pistol, forced the person robbed to stand still and hold up his hands, while the other seized him and went through his pockets and took his money. The fact that in the Harris case the person robbed was seized adds the element of force not found in this case. In the Harris case the two persons were acting together, and the force of one was the force of the other, as the intimidation by one was intimidation by the other. In that case it was properly held that “These joint acts are sufficient to constitute the crime of robbery both by force and by intimidation.” For lack of evidence to show force in this case, the court erred in refusing a new trial. See Barksdale v. State, ante, 115 (100 S. E. 45).

It is unnecessary to pass specifically on the assignments of error in the amendment to the motion for a new trial.

Judgment reversed.

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


text:
    10564.
    Mitchell v. The State.
    Decided July 22, 1919.
    Indictment for sale of liquor; from Bandolph superior court— Judge Worrill. March 31, 1919.

      Charles W. Worrill, for plaintiff in error.

      B. T. Castellow, solicitor-general, R. R. Arnold,t contra.
   Stephens, J.

1. In the absence of a timely written request therefor it was not error for the trial judge to fail to charge the law relative to the weight to be given to confessions of guilt.

2. The evidence authorized the verdict.

Judgment affirmed.

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


text:
    10230.
    Reams v. The State.
   Stephens, J.

1. Under an indictment for murder the accused may be convicted of a lesser offense if the latter is one involved in the homicide and is sufficiently charged in the indictment. Watson v. State, 116 Ga. 607 (43 S. E. 32, 21 L. R. A. (N. S.) 1).

(a) Where such an indictment contains an allegation that the defendant “unlawfully” killed a named person by driving an automobile upon and against sueli person, then and there giving to such person a mortal wound with said automobile, from which mortal wound such person died, there is sufficiently charged the offense of involuntary manslaughter in the commission of an unlawful act. It is a sufficient allegation of an unlawful act that the automobile was driven upon and, against the person alleged to have been killed.

Decided July 23, 1919.

Rehearing denied September 18, 1919.

Indictment for murder; from Lowndes superior court—Judge Thomas. October 20, 1918.

Bermet & Harrell, Whitaher £ Dulces, for plaintiff in error.

Clifford E. Hay, solicitor-general, contra.

2. For the reasons above stated the demurrer to the indictment was, upon all of the grounds thereof, properly overruled, and the exceptions to the charge of the court and to the admission of evidence, upon the ground that same were not germane to an indictment which failed to charge involuntary manslaughter, are wholly without merit.

3. The portions of the charge of the court relative to the law governing a conviction of the offense of murder were harmless to the defendant, since he was, upon conviction of involuntary manslaughter, acquitted of the offense of murder. Land v. State, 11 Ga. App. 761 (2) (76 S. E. 78).

4. Evidence that the defendant was seen, shortly after the homicide, running his car in the same peculiar manner in which the car which ran over and killed the deceased was being run at the time of the homicide, was relevant for the purpose .of identification and to further illustrate the issue. ,

5. The assignments of error not dealt with above are not insisted upon.

6. The evidence supports the verdict, which has the approval of the trial judge; and since no error of law was■ committed, this court will not reverse the judgment overruling the motion for a new trial.

Judgment affirmed.

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


text:
    10276.
    Densley v. The State.
   Stephens, J.

1. The charge of the court is not subject to the objection that it stated unfairly to the defendant the State’s theory of the homicide, or that it was unintelligible or confusing to the jury.

2. The excerpts from the charge of the court excepted to cannot be construed as containing any expression or intimation of opinion on the facts., “To declare the law applicable to a given state of facts is no expression or intimation of opinion as to whether any of the facts referred to do or do not exist in the case on trial.” Yarborough v. State, 86 Ga. 396 (12 S. E. 650).

3. There being evidence of an actual assault by the person killed upon the person killing, voluntary manslaughter was an'issue in the ease, and the law relative thereto was properly given in charge to the jury.

Decided July 28, 1919.

Rehearing denied September 18, 1919.

Conviction of involuntary manslaughter; from Lowndes superior court—Judge Thomas. October 26,1918.

Bennet & Harrell, Whitaker & Dukes, for plaintiff in error.

Olifford E. Hay, solicitor-general, contra.

4. Neither involuntary manslaughter nor accidental homicide having been put in issue by the evidence, or the evidence taken in connection wiijj the defendant’s statement, it was not error, in the absence of a timely written request, for the trial judge to fail to give in charge the law relative to involuntary manslaughter or accidental homicide.

5, The other assignments of error are without merit, and the evident® supports the verdict.

Judgment affirmed.

Broyles, P. J., and Bloodioorth, J., conowr.


text:
    10285.
    Lee v. The State.
    Decided July 23, 1919.
    Conviction of manslaughter; from Baldwin superior court— Judge Park. December 3, 1918.

      Sibley & Sibley, for plaintiff in error.

      Doyle Compbell, solicitor-general, contra.
   Stephens, J.

The evidence, taken in connection with the defendant’* statement, was sufficient to authorize the jury to find a verdict of voluntary manslaughter. The verdiet, having been approved by - the trial judge, will not be disturbed.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., conow.


text:
    10526.
    Campbell v. The State.
    Decided July 23, 1919.
    Conviction of manslaughter; from Walton superior court— Judge Cobb. December 13, 1918.

      Rogers & Knox, On-in Roberts, for plaintiff in error.

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

The verdict was amply authorized by the evidence and no ground of the motion for a new trial shows cause for a reversal of the judgment below.

Judgment affirmed.

Bloodioorth and Stephens, JJ., concur.


text:
    10553.
    CAMPBELL v. THE STATE.
    1. The bill of exceptions containing no exception to the judgment overruling the demurrer to the indictment, and there being no assignment of error upon the exceptions pendente lite complaining of that judgment, the exceptions pendente lite can not be considered by this court. Kent v. State, 18 Ga. App. 80 (82 S. E. 762).
    2. Under the facts of the case the court did not err in refusing to declare a mistrial because of loud and general applause in the court-room during the trial.
    3. This court and tlie Supreme Court have repeatedly ruled that an assignment of error based upon the refusal of the court to allow a witness for the movant to answer a certain question will not be considered, where it does not appear that the trial judge was at the time apprised of what answer was expected from the witness. This ruling disposes of the 2d and 3d special grounds of the motion for a new trial.
    4. Under repeated rulings of this court and of the Supreme Court, a ground of a motion for a new trial which complains of the exclusion of documentary evidence will not be considered, unless such evidence is ■ set forth in the ground or attached thereto as an exhibit. Under this ruling the 4th special ground of the motion for a new trial will not be considered.
    5. The evidence amply authorized, if it did not demand, the verdict, and the court did not err in overruling the motion for a new trial.
    Decided July 23, 1919.
    Indictment for cruelty to child; from Cobb superior court— Judge Morris. April 12, 1919.
    Mrs. Naomi V. Campbell was indicted under section 758 of the Penal Code of 1910. From the evidence it appeared that she conducted what was called “The Undenominational Orphans Home.” It was testified that to punish a four-year-old girl for soiling her clothes, the defendant tied the child, raised her dress, took down her underclothes, whipped her with switches until the blood came from her skin, laid her down on the floor, rubbed salt and pepper in her nose and mouth with a piece of stiff newspaper, and rubbed quinine and turpentine “in her privates; the pepper was in a pod and she made her drink some.” As an additional punishment the defendant ordered two older girls to put the child on a grate in which there was a fire, and told them that if they did not do so she would “break every bone in” them; and they took the child by her hands and feet, put her on the grate, and then sat her down on the fender, and she was burnt. The defendant made her eat pepper pods, rubbed them over her face and nose, and then made her run up and down a hill. She was whipped and burned the same day. There was testimony as to other whippings. The defendant in her statement at the trial said that she was accused falsely, that the burning of the child was an accident, and the other children did it “more through play and fun;” that she did not tell them to burn the child.

      C. M. Dobbs, Herbert Clay, for plaintiff in error.

      John T. Dorsey, solicitor-general, William Butt, contra.
   Broyles, P. J.

The 3d headnote alone needs elaboration. While a little girl, a witness for the State, was being cross-examined, the defendant’s counsel propounded to her the following question: “Where do little girls go when they burn little girls?” The witness answered: “They don’t go nowhere.if anybody, has told them to do it that is bigger than they are.” This answer was followed by loud and general applause in the crowded courtroom. The applause consisted in the clapping of hands and the stamping of feet, and the court immediately called for' order. Counsel for the defense at once moved for a mistrial. The court, before allowing counsel to complete his motion, sent the jury to their room, and after they had retired, and while counsel for the defendant was still standing for the purpose of completing his motion, “cautioned and warned the audience that he would not stand for any more applause, or any more disorder of any kind, and that he would fine the first one guilty of either, and would, if necessary, clear the court-room.” Counsel for the defense then completed his motion for a mistrial, which the court overruled. The jury were then brought back and the court instructed them as follows: “ Gentlemen of the jury, you eould’nt help but observe the applause in the court-room when this witness answered the last question asked her. Now, you must not be influenced in any manner, shape, or form by that applause. You must not let that influence your finding one way or the other—you must not be influenced in any way by it. You are trying this ease on the evidence adduced on the trial -of the case, and the statement of the defendant, if she makes one, and under the rules of law the court will give you in charge, and don’t let that applause influence you one way or the other. I especially charge you and want to impress upon you that it is your duty to disregard that and not let it have any influence on your mind one way or the other, in making your verdict in the case when finally submitted under the charge of the court.”

Under the foregoing facts, and especially since the verdict against the defendant is overwhelmingly supported by the evidence, we do not think this ground of the motion for a new trial requires a reversal of the judgment below. It does not appear that the applause was a demonstration against the defendant. In fact, the circumstances would indicate that it was merely an approval of the ready, witty, and logical answer given by the little witness to the question propounded by defendant’s counsel, There was merely a clapping of hands and a stamping of feet. No threats of any kind were made against the defendant, and it does not appear that this applause was liable to intimidate or to prejudice the jury into returning a verdict against the defendant. In this respect the instant case is easily distinguished from the Woolfolk case, 81 Ga. 551 (8 S. E. 724), and the other cases cited by counsel for the plaintiff in error. Under the circumstances we think the prompt rebuke to the demonstrators by the judge, and his immediate and careful caution to the jury to disregard the applause, was sufficient.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


text:
    10559.
    Cauthen v. The State.
    Decided July 23, 1919.
   Bloodworth, J.

1. “The newly discovered evidence was merely impeaching in its character, and does not constitute sufficient cause for a new trial.” McCrory v. State, 11 Ga. App. 788 (7) (76 S. E. 163); Moreland v. State, 134 Ga. 268 (2) (67 S. E. 804).

2. The ground that the court failed to charge “the law of confessions” is without merit, “since it is well settled that even if the evidence authorizes a charge on the law of confessions, the failure to instruct the jury on that subject, in the absence of an appropriate ivritten request so to do, is not cause for a new trial.” McArthur v. State, 19 Ga. App. 747 (2) (92 S. E. 234), and cases cited.

3. As the State introduced a confession—direct evidence—as well as circumstantial evidence, the court did not err, in the absence of a timely written request, in failing to charge the jury the law of circumstantial evidence as embodied in the Penal Code, § 1010. Horton v. State, 21 Ga. App. 120 (2), 121, and cases cited (93 S. E. 1012).

4. The other grounds of the motion for new trial are without merit; there is evidence to support the verdict, which has the approval of the trial judge, and this court cannot interfere.

Judgment affirmed.

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

Indictment for manufacture of liquor; from Pike superior court -Judge Searcy. April 8, 1919.

Erante L. Adams, for plaintiff in error.

E. M. Owen, solicitor-general, contra.


text:
    10563.
    HARDY v. THE STATE.
    Vhe evidence as to tlie wounds inflicted by a pocket-knife was sufficient to authorize the inference that the knife was a deadly weapon and was used in a manner likely to produce death; and this, in connection with the other evidence in the case, was sufficient to authorize the jury to infer malice and intent to kill.
    Decided July 23, 1919.
    Conviction of assault with intent to murder; from Jackson superior court—Judge Cobb. March 22, 1919.

      J. S. Ayers, for plaintiff in error.
    IF. 0. Dean, solicitor-general, contra.
   Bloodworth, J.

The plaintiff in error was convicted of assault with intent to murder. In the brief filed by his attorney it is insisted that the evidence does not show that the knife used was a weapon likely to produce death, and that the evidence also fails to show malice or intent to kill, and therefore the judgment is without evidence to support it, and should be set aside. The motion for a new trial contains the general grounds only. It is true that “wñen it is charged in the indictment that the assault was made with a weapon likely to produce death, the character of the weapon enters into a description of the offence, and must be proved like any other essential feature ” (Paschal v. State, 125 Ga. 279, 280, 54 S. E. 172); yet in the decision from which the statement quoted above is taken it is said: “This allegation might have been established by direct proof as to the character of the weapon, by an exhibition of it to the jury, or by evidence as to the nature of wound, or other evidence such as would warrant! the jury in finding that the instrument was one calculated to frodnee death.” (Italics ours.) In Mathews v. State, 104 Ga. 499 (30 S. E. 727), the Supreme Court said: “In order to convict the accused, under the indictment, it was necessary to prove that the instrument with which the assault was made was a ‘weapon likely if> produce death.’ This may be showp by direct or eircumstantial evidence, but must -be proved.” The person assaulted swore on the trial of this case: “I saw Tom Hardy on or about the 29th of July, 1917, at the depot in Pendergrass. He was messing with my wife, and I said 'Tommie, you quit messing with my wife/ and he jumped up1 and cut me with a pocket-knife and run off. ■ He cut me awful bad. I will let you see for yourselves. (Exhibits neck.) Like to have killed me. I laid in eight months not able to do nothing. . . After he cut me I could not hold my head straight to save my life. If I had held my head straight I would have bled to death before the doctor got there.”

In Nelson v. State, 4 Ga. App. 223 (60 S. E. 1072), the 1st and 2d headnotes are as follows: “The lethal character of the weapon used in making an assault may be inferred from the effect and nature of the wound inflicted.” “The intent to kill may be shown by the use of a deadly weapon in a manner likely to produce death.” Applying these principles to the evidence in this case, including an inspection of the wound by the jury, we think there was proof enough to “justify an inference by the jury that the knife used was in truth a deadly weapon,” and to show that it was used in a “manner likely to produce death,” and that this, in connection with the other evidence in the case, was sufficient to authorize the jury to infer malice and intent to kill. “There being evidence tending to show the guilt of the accused, the jury having believed it, as shown by their finding him guilty, and the trial judge being satisfied therewith, this court cannot say that he abused the discretion vested in him by law to grant or refuse new trials.” Allen v. State, 91 Ga. 189 (16 S. E. 980).

Judgment affirmed.

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


author: Bloodwoetix, J.

text:
    10566.
    Orr v. The State.
   Bloodwoetix, J.

1. The trial judge having given in charge to the jury the substance of section 114 of the Penal Code of 1910, and having charged, “Should you find that the defendant . . with a knife cut and stabbed Will Davis, if you do not believe that he intended to kill but intended to inflict an injury upon Will Davis less than death, you would not be warranted in finding the defendant guilty of assault with intent to murder, but would be warranted in finding him guilty of stabbing,” and the jury having been fully and clearly instructed under what circumstances they would be authorized to find the defend^ ant guilty of stabbing, it was not error requiring the grant of a new trial “that the judge failed to charge the jury on voluntary manslaughter.”

Decided July 23, 1919.

Conviction of assault with intent to murder; from Randolph superior court—Judge Worrill. March 31, 1919.

Charles W; Worrill, for plaintiff in error.

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

2. The charge to the jury that “absolute mathematical certainty is not attainable in legal investigations, but moral and reasonable certainty of guilt meets the requirements of the law” is a correct statement of the law (Bone v. State, 102 Ga. 390, 30 S. E. 845); and “a charge embracing an abstractly correct and pertinent principle of law is not rendered erroneous by a failure to charge some other legal principle applicable to the ease.” Smith v. Brinson, 145 Ga. 407 (2) (89 S. E. 363); Willis v. Hudspeth, 145 Ga. 438 (3) (89 S. E. 427); Burney v. State, 22 Ga. App. 624 (4) (97 S. E. 85), and cit.

3. “A complaint that the verdict is contrary to the charge of the court - is merely a variation of the general ground that the verdict is contrary to law, and presents no question for review. McKelvin v. State, 17 Ga. App. 413 (87 S. E. 150), and citations.” Wakefield v. Lee, 18 Ga. App. 648 (3) (90 S. E. 224); Brannan v. McWilliams, 146 Ga. 528 (4) (91 S. E. 772).

4. The evidence authorized the verdict, and no error of law was committed.

Judgment affirmed.

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


text:
    10589.
    Presley v. The State.
    Decided July 23, 1919.
    Indictment for misdemeanor; from Clinch superior court— Judge Summerall. April 19, 1919. .

      W. T. Diclcerson, for plaintiff in error.

      A. B. Spence, solicitor-general, contra.
   Bloodworth, J.

“In this case the motion for a new trial contained only the usual general grounds. There was some slight evidence authorizing the verdict; and the verdict having been approved by the trial judge, under the repeated and uniform rulings of this court and of the Supreme Court a reviewing court is powerless to interfere. When the verdict is apparently decidedly against the weight of evidence, the trial judge has a wide discretion as to granting or refusing a new trial; but whenever there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Bradham v. State, 21 Ga. App. 510 (94 S. E. 618), and cit.; Smith v. State, 91 Ga. 188 (17 S. E. 68).

Judgment affirmed.

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


text:
    10597.
    Thompson v. The State.
    Decided July 23, 1919.
    Conviction of manslaughter; from Glascock superior court—■ Judge Walker. April 18, 1919.

      J. O. Newsome, M. L. Felts, for plaintiff in error.

      R. O. Norman, solicitor-general, contra.
   Bloodworth, J.

1. When read in connection with the remainder of the charge of the court, the excerpts complained of in the 1st and 2d grounds of the amendment to the motion for a new trial are not erroneous.

2. The instruction of the trial judge upon the subject of murder, upon which error is assigned in the 3d ground of the amendment to the motion for a new trial, did not injuriously affect the accused, since the verdict was for voluntary manslaughter. Goss v. State, 14 Ga. App. 402 (2) (81 S. E. 247); Faison v. State, 13 Ga. App. 180 (4) (79 S. E. 39); Franklin v. State, 15 Ga. App. 349 (2) (83 S .E. 190); Deal v. State, 18 Ga. App. 70 (88 S. E. 902).

3. The evidence was sufficient to support the verdict, which has the approval of the trial judge, and the judgment is

Affirmed.

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


text:
    10603.
    Howard v. The State.
    Decided July 23, 1919.
    Indictment for burglary; from Whitñeld superior court—Judge Tarver. May 5,1919.
    Howard ivas convicted of burglary, under an indictment which charged him with having broken and entered the store-house of Wood So McDonald and stolen certain articles therefrom. The testimony relied on to show a breaking and entering of the storehouse was that of McDonald, one of the proprietors of the store. He testified: “I closed up that night. I locked up as usual. There are two doors to the store. I barred the back door with a crossbar. There ivas a glass front to the store. There was one rear window. It had bars across it, and ivas fastened down lower. It had iron bars on the inside. One could have broken the glass in the front door and reached in and unlocked the lock. The front door was a glass door. There was a Yale lock on that front door,— had a thumb screw in it.” “That store was burned about two o’clock in the morning.. It was some time aiter two when they woke me up. . . When I got down there the house was practically burned up; it was all fell in and in flames all over.” Certain articles found in and near the defendant’s home, of the kind described'in the indictment, were identified by the witness as articles from the stock of goods in the store-house. It was testified that the article found in the defendant’s house had been found by his son under the corner of a store-house near the burned store-house “about daylight” in the morning after the fire, and brought to his house without his knowledge. Counsel for the defendant contended that a breaking and entering had not been shown by the evidence, and in their brief in this court cited Lester v. State, 106 Ga. 371.
   Broyles, P. J.

In this case the record discloses no evidence which authorized the defendant’s conviction of the offense of burglary, and the court erred in overruling the motion for a new trial.

Judgment reversed.

Bloodworth and Stephens, JJ., concur.

IF. F. Mann, Gordon Mann, George G. Glenn, Ralph II. Mouse, for plaintiff in error.

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


author: Bloodwoeth, J.

text:
    10605.
    JOHNSON v. THE STATE.
    On the trial of one charged with a felony the punishment of which, under the Penal Code of 1910, § 1002, could on recommendation of the jury be reduced to that of a misdemeanor, an instruction by the court that should the jury find the defendant guilty, they could recommend him to the mercy of the court, “in which case, should the court approve the recommendation, the defendant would be punished as for a misdemeanor,” was not subject to exception on the ground that the judge failed to give an additional instruction (not requested) that if they should make such a recommendation “the court could ignore their recommendation altogether and put the defendant in the penitentiary.”
    Decided July 23, 1919.
    Rehearing denied September 19, 1919.
    Indictment for larceny; from Bibb superior court—Judge Mathews. April 19, 1919.

      John R. Cooper, M. F. Rawls, IF. O. Cooper, Jr., for plaintiff in error.

      C. M. Garrett, solicitor-general pro tem.

   Bloodwoeth, J.

1. The court did not err in the instructions set out in the 1st and 2d grounds of the amendment to the motion for a new trial, which were complained of as not being authorized by evidence.

2. Error is assigned on the following part of the charge of the court: “The larceny of an automobile, locomobile, motor-cycle or other like vehicle propelled by electricity or gasoline in this State shall be a felony, and any person convicted thereof shall be punished in the penitentiary for a time not less than one year nor longer than five years. [Ga. L. 1916, p. 154.] So you see the offence charged in this indictment is a felony, made so by a special act of the legislature. However, it is a felony that may be reduced to a misdemeanor. Should the jury believe this defendant guilty beyond a reasonable doubt, and if they so find, they may recommend him to the mercy of the court, in which case, should the court approve, the recommendation, the defendant would be punished as for a misdemeanor; that is to say, he would receive a sentence on the chain-gang for a term of not more than twelve months, or in the county jail not more than six months, or to pay a fine of not more than one thousand dollars, any one or more, in the discretion of the court.” This charge, which is excepted to “for the reason that the trial judge omitted to charge the jury in this connection that if they recommended defendant to the mercy of the court to be punished as for a misdemeanor, the court could ignore their recommendation altogether and put the defendant in the penitentiary,” was correct and pertinent, and is not rendered erroneous by failure to give other instructions appropriate to the case in connection therewith. Grimsley v. Singletary, 133 Ga. 56, 57 (3) (65 S. E. 92, 134 Am. St. R. 196); Western and Atlantic Railroad Co. v. Watkins, 14 Ga. App. 388 (4), 392 (80 S. E. 916), and cases cited. In addition the judge told the jury, “If you believe the defendant guilty of the offence of larceny of an automobile, the verdict will be, “We, the jury, find the defendant Leon Johnson guilty; to which you may add a recommendation should you see fit.”

In Lingerfelt v. State, 125 Ga. 4 (53 S. E. 803, 15 Ann. Cas. 310), the 4th paragraph of the decision is as follows: “Where the court charged that if the jury should find the defendant guilty generally, he would be subject to confinement in the penitentiary for a time not less than two years nor longer than ten years; that they would have the right to reduce the punishment to that appropriate to a misdemeanor; that ‘if the judge should approve that, he would be punished as for a misdemeanor” and that the form of verdict proper for that purpose would be to find the defendant guilty and recommend that he be punished as for a misdemeanor, in the absence of any request to charge more specifically on the subject there was no error in failing to explain to the jury, that, in the event they should find the defendant guilty with the recommendation referred to, the judge could disregard such recommendation and punish him as for a felony.” In the case of Taylor v. State, 14 Ga. App. 492 (81 S. E. 372), the judge failed to charge the jury that they could recommend that the defendant be punished as for a misdemeanor, and to inform the jury that such a recommendation, to be effective, would have to meet with the approval of the judge. The judgment in that case was reversed because of the total failure of the judge to charge these propositions. However, in discussing this error, Judge Russell said (p. 499): “In Lingerfelfs case, it is true, the instructions of the trial judge were not held to be erroneous; and this was because the jury were told that ‘if the judge should approve [the recommendation] he would be punished as for a misdemeanor/ The court held only that in the absence of a request for a more specific charge on the subject, there was no error in failing to explain to the jury that the judge could disregard the recommendation and punish as for a felony; and it is therefore clear to our minds that the instruction was held sufficient because further explanation would only have made more plain the negative pregnant couched in the language used by the trial judge. When the judge, in Lingerfelfs case, told the jury that the accused would be punished as for a misdemeanor if he approved the recommendation, it was easily to be inferred by the jury that if the recommendation as to misdemeanor punishment was not approved, the accused would be punished as for a felony.” In Frazier v. State, 15 Ga. App. 365 (83 S. E. 273), Judge Wade said in the opinion: “If the judge presiding at the trial of one accused of a felony, where under the law the jury may recommend that he be punished as for a misdemeanor, informs the jury of their right so to recommend, and clearly indicates to them in unmistakable language that the recommendation will not be effective unless it meets with his approval, this is sufficient, though he may not couch the instruction in the precise words set out in the headnote quoted from Taylor v. State, supra.” Applying the rule announced in the Lingerfell case, and approved in the Taylor and Frazier cases, it will be seen that in the absence of a timely and proper written request, there was no error in the failure of the judge to give a more specific charge on this branch of the case.

3. There was evidence to support the verdict, and, under the uniform and repeated rulings of this court and of our Supreme Court, the verdict approved by the trial judge, where no error of law is committed, will not be disturbed.

Judgment affirmed.

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


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

text:
    10271.
    NEAL v. THE STATE.
    Conceding, but not deciding, that the court erred in charging the jury that if the evidence showed that apparatus for the distilling and manufacture of intoxicating liquor was found on premises “possessed or controlled” by the defendant, the State made a prima facie case, which would entitle the State to a verdict in its favor unless the defendant showed that the apparatus was there without his knowledge, this charge does not require a new trial, under the uncontradicted evidence, in which there was testimony as to incriminatory admissions of the defendant which, under the particular facts of the case, amounted to a confession of guilt. (Stephens, J., dissents.)
    Indictment for manufacture of liquor; from Glascock superior court—Judge Walker. November 27, 1918.

      M. L. Felts, for plaintiff in error.

      R. C. Norman, solicitor-general, contra.
   Broyles, P. J.

The indictment contained two counts. The first count charged the defendant with the offense of manufacturing alcoholic liquors. The second count charged him with knowingly permitting apparatus for the distilling and manufacturing of intoxicating liquors to be located on his premises. He was convicted on both counts. The court instructed the jury, in substance, that if the evidence showed that such apparatus was found on premises "possessed or controlled” by the defendant, the State made a prima facie case, and this would entitle the State to a verdict in its favor unless the defendant showed that the apparatus was there without his knowledge. This charge was excepted to. Conceding, but not deciding, that this charge was erroneous, it does not require a new trial, under the facts of the case. The uncontradieted evidence, even eliminating all of the testimony of the witness Charlie Lewis, whom the defendant attempted to impeach, clearly showed that a complete distillery for the manufacture of intoxicating liquors was located on the defendant’s premises with his knowledge, and with, at least, his implied consent. This was established by the unimpeached evidence of the sheriff of the county, who testified to incriminatory admissions made to him by the defendant—which admissions, under the particular facts of the case, amounted to a confession of his guilt of the offense charged in the second count. This testimony of the sheriff was not contradicted by any other evidence, nor even by the defendant in his statement to the jury. Under these circumstances a verdict of guilty under the second count of the indictment was demanded, and the alleged error in the charge, if error, was harmless.

There was ample evidence to authorize the defendant’s conviction under the first count of the indictment, and no error in the charge, as to this count, is complained of.

The remaining special grounds of the motion for a new trial are without merit. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworth, J., concurs. Stephens, J., dissents.

Stephens, J.,

dissenting. I cannot concur with the majority of the court in the conclusion that the defendant’s conviction was demanded. As I understand the evidence, there was an issue of fact for the jury as to whether or not the defendant had knowledge of the existence of a still upon his premises. "While his statement is long and argumentative and full of irrelevancies, it can be construed only as a denial of such knowledge. He stated this (in referring to the branch on which the still was found): “It’s a thick branch. I never had my foot in it before, until this still was found, and I didn’t know anybody else ever did. As I stated about this,—I don’t know anything about the spring and I have no occasion to visit my branches, and have no occasion to know of a still in there.” He further said: “I ask you, gentlemen, to direct your attention to the fact that I have no opportunity to be away from the office; that I have been there with a two-man’s job since they claim this distilling on my place. I don’t know who it was. I never knew it at the time. I only discovered that since.” This clearly and unmistakably amounted to a denial upon the part of the defendant of any knowledge whatsoever as to the existence of a still upon his premises. The jury had a right to believe this statement in preference to the sworn testimony. This certainly made an issue of fact for the jury’s determination. Conceding, however, that the defendant may have, in an extrajudicial confession, admitted knowledge of’ the existence of a still upon his premises, such admission cannot be said to eliminate from the consideration of the jury the issue as to the knowledge of the existence of this still, made by the defendant’s denial in his statement. Where the defendant, neither in his statement nor by testimony, denies an alleged extrajudicial confession, I hardly think it can be said that such undenied confession can be considered by the court as proof of guilt and as eliminating the issue. It is a fundamental doctrine of criminal law that “confessions of guilt should be received with great caution. A confession alone, uncorroborated by other evidence, will not justify a conviction.” Penal Code, § 1031. What degree of corroboration will warrant an inference of guilt is essentially a jury question. Even though there be no issue as to the fact of a confession having been made and as to the fact of corroborative circumstances, the inferences to be drawn from these undisputed facts are peculiarly for the jury. “Confession is a means of proof, and not proof.” Wigmore’s Principles of Judicial Proof, 538; 1 Greenleaf on Evidence, § 216; 2 Chamberlayne on Evidence, § 1592 et seq.; Wharton’s Crim. Ev., § 625; 6 Am. & Eng. Enc. Law (2d ed.) 580. It cannot be said, as a universal rule, in every case where the facts are undisputed, that certain fixed and invariable inferences must be drawn from these facts. On a trial for murder all of the facts may be undisputed, yet the jury is left free to infer from these undisputed facts either malice or reasonable fears, i. e. murder or justifiable homicide.

Besides, the “incriminatory admissions made to [the sheriff] by the defendant—which admissions,” in the language of the majority of the court, “under the particular facts of this case, amounted to a confession of his guilt of the offense charged,” are, I respectfully submit, no more than “incriminatory admissions.” The sheriff testified: “I would consider it [the still] located on Mr. Neal’s premises, because he told me he knew it was there. He told me that the Sunday we were there. He said he knew who operated it, and he said he would tell me if I would guess. I guessed A. L. Bales, and he said A. L. Bales don’t run it.’ He said he knew all about it. I don’t know, I don’t remember that he told me how many times he had been down there. The question that come up,— the question about the gun came up, and he said it was his gun and he loaned it to a man that was in the business, and he was sorry he did, and I asked him if he would tell me who that man was. He told me he knew about it. He said he wasn’t having anything to do with it himself. I don’t know that he told me that he gave his consent. No, sir, he didn’t tell me who operated it. I can’t remember that he told me that it was .his farm; we talked about the farm and the place.” However damaging to the defendant his statement to the sheriff may have been, it did not amount to a confession of the crime charged. A confession must consist in an admission of all the elements constituting the offense, and not an admission of only a part of the essential elements of the offense. “Unless the statement of the defendant is broad enough to comprehend every essential element necessary to make out a case against him it cannot be said to be a confession of guilt. . . Incriminating statements, to be the equivalent of a confession of guilt, must be so comprehensive as to include every act necessary to be proved by the prosecution in order to establish the defendant’s guilt.” Owens v. State, 120 Ga. 296, 298, 299 (48 S. E. 22). “A confession, in criminal law, is a voluntary statement made by the person charged with the commission of a crime or misdemeanor, communicated to another person, wherein he acknowledges himself to be guilty of the offense charged«and disclosing the circumstances of the act and the share and participation he had in it.” Black’s Law Dictionary. “A confession is a person’s admission or declaration of an agency or participation in a. crime, and is restricted to admissions of guilt.” 3 Am. & Eng. Ene. Law, 439.

The statement of the sheriff tended to establish by way of admission Icnowledge only of the existence of the still on the part of the defendant. The statement contained no admission of the entire offense-charged, the offense being, to “knowingly permit or allow” a still upon one’s premises. Nothing which the defendant said to the sheriff admitted that the defendant “permitted” or “allowed” a still upon his premises, nor did it admit that defendant possessed or controlled the premises. The evidence of the sheriff, therefore, established no more than a mere inculpatory admission on the part of the defendant. Such an admission, said the Supreme Court in Covington v. State, 79 Ga. 687, 690 (7 S. E. 153), in the language of Chief Justice Bleckley, “is not direct, or . . positive evidence of guilt, but it belongs to circumstantial evidence, the admitted facts being circumstances proved by the prisoner’s admission, instead of being proved by some witness who was present when these facts transpired.”

The evidence having clearly made an issue as to the defendant’s guilt or innocence, and the charge of the court excepted to having necessarily controlled the verdict, and being an erroneous statement of the law, the verdict should be set aside and a new trial granted.

The defendant was indicted under two counts. One charged him with distilling and manufacturing prohibited liquors, and the other charged him with knowingly permitting, having, and possessing distilling apparatus on his premises. He was convicted on both counts. Section 22 of the act approved March 28th, 1917, making it unlawful for any one “to knowingly permit or allow any one to have or possess or locate on his premises any apparatus for the distilling or manufacturing of the liquors and beverages specified in this act,” provides that “when any such apparatus is found or discovered upon said premises the same shall be prima facie evidence that the person in actual possession had knowledge of the existence of the same, . . the burden of proof in all cases being upon the person in actual possession to show the want of knowledge of the existence of such apparatus on his premises.” (Italics mine.) The evidence in this case showed that a distilling apparatus was found upon the premises of the defendant, upon which lived defendant’s tenant or cropper, the defendant himself not living upon the premises, but controlling the same as landlord and visiting the same daily. Defendant in his statement, however, stated that the tenant had been on the place two years and superintended the entire farm just as if it were his, the tenant’s. The judge charged the jury as follows: “The burden is upon the State to show that the apparatus was upon the premises or property possessed or controlled by the defendant, and if the State shows that to your satisfaction, and that beyond a reasonable doubt, or that there was apparatus for making these liquors or beverages as enumerated and set out in the section of the law read to you on the premises in possession and control of the defendant, then the State has made out a prima facie case under the law, and, stopping there, the State would be entitled under the law to have a verdict in its favor, unless the defendant shows to you that such apparatus was there without his knowledge. The burden to show that he had no knowledge of the existence of such apparatus on his premises is upon him and not upon the State.” This charge of the court was error, in that it instructed the jury that when such distilling apparatus was found upon premises “possessed or controlled” by the defendant the State had made a prima facie case which would “entitle” it to a verdict in its favor. One who possesses or controls premises is not necessarily the one in actual possession in the sense in which the term is used in this act. The expression “actual possession” means possession in fact, an actual and immediate occupancy of the premises. In 1 Words & Phrases (3d series), 97, “actual possession” is defined as follows: “ ‘Actual possession’ of land consists in subjecting it to the will and dominion of the occupant, and must be evidenced by those things which are essential to its beneficial use. . . ‘Actual possession’ means possession in fact, effected by actual entry upon the premises and actual occupancy. . . It is necessary that the possession must be actual, etc. ‘Actual’ means real, visible. . . Actual possession is the same as pedis possessio or pedis positio, and these mean a foothold on the land, an actual entry, a possession in fact, a standing upon it, an occupation of it, as a real, demonstrative act done. It is the contrary of a possession in law, which follows in the wake of title.” “‘Actual possession’ exists where a thing is in the immediate occupancy of the party. ‘Constructive possession’ is that which exists in contemplation of law without actual personal occupation.” Brown v. Volkening, 64 N. Y. 76, 80. Thq term “actual possession,” as used in a penal statute of Texas, providing that any person leaving the dead carcass or body of any horse, etc., which died in the actual possession of such person, in any public road, or within fifty yards thereof, shall be fined etc., applies to cases where the animal dies while it is actually being used by the owner; that is, in his manual possession at the time of its death. Ogg v. State, 48 Tex. Cr. 231 (87 S. E. 348).

Since the law places the burden of showing absence of knowledge of the existence of a still upon the one in “actual possession” of the premises upon which the still was found, it must necessarily follow that “actual possession” in the sense here used means such close proximity to the premises as will reasonably lead to the inference that the party in possession had knowledge of the existence of the still. Such knowledge could justly be imputed to one in actual possession, pedis possessio, whereas it could not justly be imputed to one who merely owned the premises and had control thereof, but lived elsewhere. It will be seen, therefore, that where premises are immediately occupied by a tenant or cropper who actually lives thereon, and the owner or landlord, as the defendant in this case, does not live thereon, although such owner or landlord may be in control of the premises as owner, such control of the premises is not the actual possession in the sense of this act. The owner may not live upon the premises, and yet, from the particular circumstances, such as going over the place daily and inspecting it, etc., it may be inferred that he had knowledge of the existence of a distilling apparatus thereon. This inference would not arise, however, from the fact that he controlled the place, but would arise from all the facts and circumstances of the particular ease going to show knowledge on the part of the defendant. The statute makes it unlawful for the owner of the premises, whether he lives thereon or not, to allow distilling apparatus thereon, hut the statute makes actual possession, and not ownership or control, prima facie evidence of knowledge of the existence of the still on the premises. Ownership or control alone are not sufficient, without more, to authorize the inference that the owner knew of the existence of a still on his premises.

Where, in a criminal case, a prima facie case for the State is made, a verdict of guilty is not demanded. A prima facie case merely authorizes the jury to find a verdict of guilty under the evidence. It is, therefore, error for the court to charge the jury that a prima facie ease under this .act “entitled” the State to a verdict. The possession of distilling apparatus upon the premises of the defendant does not, as a matter of law, demand the defendant’s conviction. Such possession merely authorizes the jury to convict the party in actual possession of the premises. It is not a presumption of law; but is a presumption of fact. See the authorities collected and referred to in Holliday v. State, 23 Ga. App. 400 (98 S. E. 386); State v. Wilkerson, 164 N. C. 431 (79 S. E. 888).

I deem it unnecessary here to touch upon the grounds of the .motion for a new trial upon newly discovered evidence, and upon the manner in which the jury was drawn.

I am of the opinion that the judgment should be reversed.