author: Birdsong, Presiding Judge.

text:
    A97A1359, A97A1360.
    GIBBINS v. THE STATE; and vice versa.
    (495 SE2d 46)
   Birdsong, Presiding Judge.

In Case No. A97A1359, Larry Wade Gibbins, the stepfather of the victim, appeals his convictions of one count each of rape, child molestation, incest, and aggravated sexual battery and two counts of aggravated child molestation. In Case No. A97A1360, the State appeals the trial judge’s decisions that the rape and incest counts and that one count of aggravated child molestation and the child molestation count also merged for sentencing.

Case No. A97A1359

Gibbins contends the trial court erred by denying his motion for a directed verdict on the rape count, by refusing to instruct the jury on the force requirement in a rape prosecution, by refusing to excuse a venirewoman, by allowing the introduction of similar transactions, by refusing to give a requested charge on similar transactions, by refusing to grant a mistrial or give curative instructions because of alleged improper closing argument by the prosecution, and by denying a request for a one-week continuance in the pre-sentencing hearing. Held:

1. Gibbins first contends that the trial court erred by denying his motion for a directed verdict of acquittal on the count of forcible rape because the evidence did not prove that he used force or threat of deadly force or serious bodily injury. Gibbins argues that this case is controlled by Drake v. State, 239 Ga. 232, 233-235 (236 SE2d 748), which holds that the element of force must be proved when a defendant is charged with forcible rape of a child victim.

Drake held: “It is true that sometimes mere lack of consent imputes force, but this is true only where children are not involved. . . . Tn the ordinary case the force to which reference is made is not the force inherent in the act of penetration but is the force used to overcome the resistance of the female. When the victim is physically or mentally unable to give consent to the act, as when she is intoxicated, drugged, or mentally incompetent, the requirement of force is found in constructive force, that is, in the use of such force as is necessary to effect the penetration made by the defendant.’ ” Id. at 234-235. In Drake, “[t]he Supreme Court differentiated between the ‘against the will’ and ‘force’ elements necessary to prove forcible rape. The Court held that the lack of consent element necessary to prove forcible rape was ‘automatically shown’ by proof that the victim was under the age of consent, but the element of force ‘must be shown by evidence.’ ” Luke v. State, 222 Ga. App. 203 (1) (474 SE2d 49).

Some believe, however, that this holding in Drake is no longer effective (see, e.g., Durr v. State, 229 Ga. App. 103, 105 (493 SE2d 210) (special concurrence)) because of the Supreme Court’s pronouncement in Cooper v. State, 256 Ga. 631 (2) (352 SE2d 382) that “[s]exual acts directed to [children] are, in law, forcible and against the will.” This view is reinforced by our Supreme Court’s later pronouncement to that effect in Richardson v. State, 256 Ga. 746, 747 (353 SE2d 342).

This position is given added weight by our Supreme Court’s recent decision in Brown v. State, 268 Ga. 154, 155 (486 SE2d 178), that “[c]hild molestation is, by its very nature, a crime involving a forcible and violent act. See Richardson v. State, [supra]; Cooper v. State, [supra]; Luke v. State, [supra]; Huggins v. State, 192 Ga. App. 820 (1) (386 SE2d 703) (1989). Because children do not have the capacity to give consent to or resist a sexual act directed at them, such acts ‘are, in law, forcible and against the will’ of a child. Cooper v. State, supra; Luke v. State, supra.”

Nevertheless, none of these pronouncements was made in forcible rape cases, and we have found no forcible rape case in which our Supreme Court has made similar pronouncements even though as long ago as 1976 our Supreme Court held in Curtis v. State, 236 Ga. 362, 363 (223 SE2d 721), that “[t]he issue to be decided is whether the prosecutrix freely consented, or whether her lack of resistance sprang from reasonable apprehension of great bodily harm, violence, or other dangerous consequences to herself or another.”

This problem arises with victims under the age of consent because the victim’s age alone would establish both the elements of lack of consent and force, and thus all statutory rape cases (OCGA § 16-6-3) would be forcible rape cases (OCGA § 16-6-1). See Drake, supra at 234. ‘‘The principle in Drake is applicable only when the charge is forcible rape of a minor; it is applied to preserve the distinction between forcible rape and statutory rape. Otherwise, the statute making the latter a crime is meaningless.” Durr v. State, supra at 104 (2). Therefore, we are still bound not to depart from the questionable holding in Drake. (For example, how could sexual intercourse with a two-year-old child ever be accomplished with informed consent and without force, as a matter of law?)

In this case, although the victim never testified directly that Gibbins used force or threats of force to commit rape, we do not find that this is dispositive of the issue. In Drake the Supreme Court affirmed Drake’s conviction for forcible rape because evidence of force through intimidation was sufficient to sustain the conviction. “Lack of resistance, induced by fear, is force.” (Citation and punctuation omitted.) Drake, supra at 236 (2). Thus we find that the victim’s state of mind from her prior experience with Gibbins and her subjective apprehension of danger from him were sufficient evidence to satisfy the force requirement. Id. “Force may be proved by direct or circumstantial evidence.” Daniel v. State, 194 Ga. App. 495, 496 (391 SE2d 128).

Here, the victim testified that Gibbins began exploiting her sexually when she was under five years old, that she did not tell her mother because she was afraid of what Gibbins might do, and that Gibbins told her that if she told anyone, she and her mother would be out on the streets. Another time the victim testified that Gibbins said they would be out on the streets and they would die. Although the victim’s testimony on this statement was weakened somewhat on cross-examination, this testimony was evidence from which a jury could conclude that the victim’s participation in the sexual relations with Gibbins was produced by fear for herself and her mother. Curtis, supra; Raines v. State, 191 Ga. App. 743, 744 (382 SE2d 738).

Accordingly, the trial court did not err by denying Gibbins’ motion for a directed verdict of acquittal.

2. Gibbins next contends the trial court erred by failing to instruct the jury that for intimidation to satisfy the force requirement in a prosecution for forcible rape, the intimidation must involve a threat or fear of death or immediate and serious bodily injury. As shown by our discussion in Division 1, this contention is without merit. See Clark v. State, 261 Ga. 311, 312 (404 SE2d 787). Moreover, as the thinking process of children generally is not as developed as that of adults, were it necessary we would not hesitate to find that the age of the child, at the time a sexual abusive pattern commences, is a factor to be considered by a jury in determining whether an informed consent was given or whether the threat, force, or emotional trauma of repeated sexual abuse was sufficient to cause lack of resistance.

3. Gibbins further contends the trial court erred by abusing its discretion when it refused to excuse for cause a venirewoman who testified that because of her past experiences she would have difficulty being fair to him and that she would believe the child victim over an adult accused. The record shows, however, that the venirewoman also stated that she could set aside her past and decide the case based on the evidence presented. Further, in response to questioning by the court, the venirewoman stated that she would “try the hardest possible to be impartial, completely impartial, until [she heard] all the evidence,” and that she would “try to the best of [her] ability to [give Gibbins a fair trial].” “The fact that a potential juror may have some doubt about his impartiality, or complete freedom from all bias, does not demand, as a matter of law that the juror be excused for cause.” Greenway v. State, 207 Ga. App. 511, 513 (3) (428 SE2d 415). Because the record does not demonstrate that the juror’s opinion was “ ‘so fixed and definite that it would not be changed by the evidence or the charge of the court upon the evidence,’ we cannot say that the trial court abused its discretion in declining to strike the juror for cause. (Citations and punctuation omitted.) Id.” Nichols v. State, 221 Ga. App. 600, 601 (2) (473 SE2d 491). Further, “to disqualify a prospective juror on the basis that he has formed an opinion about the guilt or innocence of the defendant, when the prospective juror had formed the opinion based on hearsay rather than his having witnessed the crime or having heard testimony under oath, the opinion must be so fixed and definite that it would not be changed by the evidence or the charge of the court during the trial of the case. Waters v. State, 248 Ga. 355, 362 (2) (283 SE2d 238) (1981). ... The prospective juror testified that [she] could put aside any prior impressions and fairly and impartially decide the case on the evidence presented at trial. Thus, [she] was not subject to a successful challenge for cause. See Bright v. State, 265 Ga. 265, 281 (8) (455 SE2d 37) (1995).” Berry v. State, 267 Ga. 605, 609 (6) (481 SE2d 203). Accordingly, this enumeration of error is also without merit.

4. Gibbins also alleges that the trial court erred by allowing introduction of remote similar transaction evidence through the testimony of two of his adult natural daughters. One daughter testified that Gibbins had molested her, had oral sex with her, and had sexual intercourse with her when she was very young. She testified that these events occurred some 20 to 29 years ago. The other daughter testified that Gibbins had molested her when she was about five years old. We find no reversible error. “In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. There need only be evidence that the defendant was the perpetrator of both crimes and sufficient similarity or connection between the independent crime and the offenses charged.” (Citation and punctuation omitted.) Stine v. State, 199 Ga. App. 898, 899 (2) (406 SE2d 292). Although the time between a prior incident and the offense charged is a factor going to the weight accorded such evidence, Gibbins’ contention that the prior incident was too remote in time to be admissible as a similar transaction is without merit. Bryson v. State, 210 Ga. App. 642, 643 (2) (437 SE2d 352); see generally Oller v. State, 187 Ga. App. 818, 819 (2) (371 SE2d 455).

5. Gibbins also alleges that the trial court erred by refusing to give his requested charge regarding the remoteness of similar transaction evidence and in particular the 31-year rule announced in Gil- strap v. State, 261 Ga. 798 (410 SE2d 423). It is a fundamental rule in this state that jury instructions must be considered as a whole in determining whether there was error in the charge (Hambrick v. State, 256 Ga. 688, 690 (353 SE2d 177); Dept. of Transp. v. Hillside Motors, 192 Ga. App. 637, 640 (385 SE2d 746)), and it is not error to fail to charge in the exact language of a requested charge if the principles of law embodied in the request are included in the charge given. Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 160 (256 SE2d 916). We find that the trial court’s general charge was sufficient to instruct the jury on the factors to be considered in assessing the testimony of the witnesses even though the charge did not specifically refer to the remoteness of the acts mentioned in the testimony. Moreover, we do not find that the so-called “31 year rule” of Gilstrap v. State, supra, is a proper subject of a jury charge. This rule concerns the admissibility of the similar transaction evidence, and that issue is to be decided by the trial court. “ ‘Even though language used by the appellate courts in a decision may embody sound law, it is not always appropriate to employ such language in instructing the jury.’ ” Griffin v. State, 154 Ga. App. 261, 263 (2) (267 SE2d 867).

6. Gibbins argues that the trial court erred by failing to grant a mistrial or give curative instructions because of the prosecutor’s closing argument. He contends the prosecutor improperly testified in closing because the prosecutor asserted personal knowledge of the facts thus allegedly accusing the victim’s mother of lying about whether the prosecutor consented to the mother taking the victim to be interviewed by the defense counsel, berated the victim’s mother for allowing Gibbins’ counsel to interview the victim, berated Gibbins’ defense counsel for cross-examining the victim, argued Gib-bins’ future dangerousness during the guilt-innocence phase, and exhorted the jury to act on passion by repeatedly crying.

Absent the abuse of discretion, control of the range of argument is vested in the trial court (Towns v. State, 191 Ga. App. 229, 230 (381 SE2d 405)), and whether a trial court took sufficient measures to remove improper matters from the minds of the jury generally depends upon the circumstances of the case. In this appeal, we cannot conclude the trial court’s response to the improper argument was so inadequate as to require a new trial. Purvis v. Toole, 207 Ga. App. 189, 190 (427 SE2d 565). We do not read the prosecutor’s comments regarding ending the tragedy and making this victim the last as ominously as does Gibbins. The first point was made in response to an argument made by Gibbins’ counsel, and the latter was made in passing and was not argued at length.

Further, although a witness cannot be compelled to submit to a pre-trial interview, the State may not deny a defendant access to a material witness. Sosebee v. State, 190 Ga. App. 746, 748 (380 SE2d 464). Thus, even though the prosecutor’s point about the mother taking the child to be interviewed by the defense counsel was incorrect legally, we do not consider action by the trial court was necessary as these comments did not concern a material issue. In the same manner, prosecutors should take great care when commenting upon defendants’ exercise of their right to cross-examine witnesses, even victims. In this appeal, we find no error because the focus of the argument concerned how the victim stood up to the cross-examination.

Nor do we find error in the trial court’s refusal to grant a mistrial because the prosecutor, the victim and her mother, and the similar transaction witnesses cried during closing argument. The record does not show that their actions disrupted the court or otherwise affected the jury. Compare Glenn v. State, 205 Ga. 32, 34 (52 SE2d 319). Accordingly, the trial court did not err by denying Gibbins’ motion for a mistrial.

7. Finally, Gibbins contends the trial court erred by denying a one-week continuance before sentencing because the defense had not developed fully mitigating circumstances and because there was a need to confer about Gibbins testifying during sentencing. We find no error. Gibbins’ reliance on cases in which the trial court did not hold a pre-sentencing hearing is not well taken. In this case, the trial court did not prevent Gibbins from participating in such a hearing; the trial court merely refused to delay the hearing until such time as Gibbins deemed appropriate. The trial court has discretion in scheduling the pre-sentencing hearing (Scott v. State, 216 Ga. App. 692, 693-694 (455 SE2d 609)), and we do not find that this discretion was abused in this case. Jackson v. State, 266 Ga. 308, 309 (467 SE2d 495).

Case No. A97A1360

8. In its cross-appeal the State contends the trial court erred by merging Gibbins’ convictions of Count 2, rape, with Count 4, incest, and also by merging the convictions of Count 1, aggravated child molestation, with Count 3, molestation. The State’s authority to appeal in a criminal case is granted in OCGA § 5-7-1, and appeals by the State are limited to the following instances and one significant exception: “ ‘(1) From an order, decision, or judgment setting aside or dismissing any indictment or accusation or any count thereof; (2) From an order, decision, or judgment arresting judgment of conviction upon legal grounds; (3) From an order, decision, or judgment sustaining a plea or motion in bar, when the defendant has not been put in jeopardy; (4) From an order, decision, or judgment sustaining a motion to suppress evidence illegally seized in the case of motions made and ruled upon prior to the impaneling of a jury; or (5) From an order, decision, or judgment transferring a case to the juvenile court pursuant to subparagraph (b) (2) (B) of Code Section 15-11-5.’ OCGA § 5-7-1 (a); State v. Greenwood, 206 Ga. App. 188 (424 SE2d 870).” State v. Creel, 216 Ga. App. 394, 395-396 (454 SE2d 804). The exception is that “[n]otwithstanding the provisions of OCGA § 5-7-1, the State may appeal directly an illegal judgment. Potts v. State, 236 Ga. 230 (223 SE2d 120) (1976); Darden v. Ravan, 232 Ga. 756 (1) (208 SE2d 846) (1974).” State v. Bilal, 192 Ga. App. 185 (384 SE2d 253). Therefore, as none of the circumstances specified in OCGA § 5-7-1 (a) is present in this case, the State’s entitlement to an appeal depends upon whether the trial court imposed an illegal sentence.

Decided December 3, 1997

Reconsideration denied December 18, 1997

William G. Quinn III, for appellant.

Thomas J. Charron, District Attorney, Frank R. Cox, Debra H. Bernes, Assistant District Attorneys, for appellee.

It is readily apparent that the sentence is not void or illegal because it was imposed when the trial court was without jurisdiction to impose the sentence (State v. Johnson, 183 Ga. App. 236 (358 SE2d 840)) or because the sentence was contrary to that required by law. See State v. Stuckey, 145 Ga. App. 434 (243 SE2d 627). In this case, the State merely contends that the trial court erred in merging the various counts for sentencing. Under the circumstances, we find that this appeal does not represent any of the statutorily enumerated instances in which the State has the right to appeal, and we find that the sentence is not void. Therefore, the appeal must be dismissed for lack of jurisdiction. State v. Sosebee, 191 Ga. App. 725 (382 SE2d 681).

Although there may be merit to allowing appellate courts to correct potential errors in sentencing, the grounds on which the State may appeal in a criminal case are set forth in OCGA § 5-7-1, and this statute must be strictly construed against the State. State v. Sosebee, supra. Therefore, if other grounds for appeal by the State are to be created, they must be established by the General Assembly.

Judgment affirmed in Case No. A97A1359. Appeal dismissed in Case No. A97A1360.

Ruffin and Eldridge, JJ., concur.


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    9913.
    CHAMBERS v. THE STATE.
    Decided November 7, 1918.
    An emigrant agent is one who is engaged in hiring laborers in this State to be employed beyond' the limits of the State, and who makes that work his business or occupation.
    Accusation o£ misdemeanor; from city court of Cartersville— Judge Aubrey. May 13, 1918.
    J. R. Whitaker, W. T. Townsend, for plaintiff in error.

      Watt H. Milner, solicitor, J. M. Neel Jr., contra.
   Bloodworth, J.

The indictment in this case charges that the defendant did “unlawfully conduct and offer to conduct the business of an emigrant agent without first registering with the ordinary of said county, and paying the tax of $500.00 as required by law.” There was a verdict of guilty, and a sentence of one thous- and dollars or six months in the chain-gang. On the trial Lester Davis testified: “Wednesday morning of this week Mr. Vaughan brought me and Gordon Bates to court to Cartersville, and we came on the L. & N. train. Soon after we arrived- and I were standing at the depot here in Cartersville; when the defendant came to us and asked us if we did not want to go to Tennessee to work, that he was going and was going to get $2.50 per day wages, and that we would get the same if we would go. He showed us a picture of the places where we would live. I told him that I was working for Mr. Vaughan and that I could not go and leave my family. He stated to me that I could send back and get my family. . . The defendant did not say that he would pay me $2.50 per day if I would go to Tennessee. He just told me that I could get $2.50 a day up there. I did not know the defendlant until I saw him at the depot that morning. He said he had a ticket and whs going to Tennessee to work, and asked me to go with him. He did not' offer to pay my way, but asked me to go and work.” The evidence of Dave Yaughan, Esq., was the same, in substance, as that of Lester Davis. Mr. Lester Pettit testified: “I am emigrant agent here for the Aluminum Company of America of Maryville, Tennessee. I have paid the tax of $500 to the tax-collector of Bartow county, and have my recéipt for same [at this time the receipt mentioned by the witness was exhibited and introduced in evidence]. This defendant Moses Chambers came to iny house Tuesday night about seven or eight o’clock, and told me he was looking for a job and had been sent to me. I told him to come back this morning and gave him twenty-five cents to get him something to eat, and told him where the negro restaurant was. .He came back to my house this morning and J made a trade with him to go to Maryville, Tennessee, and bought him a ticket to that place. I did not ask him to try to get anybody to go with him, and thought he had caught the train and gone, until I heard he was arrested.” Tom Littlejohn testified in. part a& follows: “This defendant staid at my house that night and told me he had come to hire tó Mr. Pettit, and I learned later that Mr. Pettit hired him to go to Maryville, _ Tennessee, to work. I don’t know where he got the picture, but there was some on the dresser at my house in the room where he slept. I live with Mr: Pettit.”

The defendant’s statement at the trial was as follows: “A white man in Atlanta sent me to Mr. Pettit here at Cartersville. I was' looking for a job. I came up here last Tuesday night on the train, and when I got here-I went to see Mr. Pettit and told him' I heard he wanted to hire'hands to go to Tennessee to work, and he told me it was then late and I could come hack to. see him in' the- morning. He gave me twenty-five cents to get something to eat. I spent the night with the colored man who lives with this white man and went back to see this man, Mr. Pettit, this morn-, ing and he told me he would give me $2.50 per day and'pay my way up into Tennessee where he .wanted mq to go. to work. T told him I would go and he bought me a ticket.. While I was down at the depot waiting for the train this colored fellow that was on the stand came up to me and asked me where I was going, and I told him I was going to Tennessee to work at $2.50 per day, and asked him if he didn’t want to go with me, and he said he couldn’t go. I did not try to hire him or anybody else. I did show him this picture that I got where I staid that night. -It was lying on the table in the room where I slept, and I picked it up and was looking at it, and the man I staid with said it was a” picture of the place where I was going to work, so I put it in my pocket. This is all I know about this matter.”

In Theus v. State, 114 Ga. 53 (39 S. E. 913), Mr. Justice Lewis, speaking for the court,.said: “In the ease of Williams v. Fears, 110, Ga. 584 [35 S. E. 699, 50 L. E. A. 685], will be found an exhaustive and able discussion of the meaning of the term ‘emigrant agent’ as used in the general tax act of 1898, under which the accusation in this case was brought. An emigrant agent was there defined as ‘a person engaged in hiring laborers in this State, to be employed beyond the limits of the same.’ See also, to the same effect, Varner v. State, 110 Ga. 596 [36 S. E. 593]. To be engaged in a work, in the sense contemplated by the acts imposing taxation, would seem to necessarily imply that the person so engaged must make that work his business or occupation.” Applying this principle to the evidence in the instant case, we think it quite evident that the defendant was not “engaged” in the business of an emigrant agent; and therefore the evidence did not authorize the verdict, and a new trial should, have been ordered.

Judgment reversed.

Broyle.s, P. J., and Harwell, J., concur.


author: Harwell, J.

text:
    9724.
    BRYANT v. THE STATE.

       In a criminal ease in which the defendant has made a statement at the trial, the court should charge the rule of law touching the defendant’s statement; and failure to do this is reversible error, even in the absence of a request, unless it appears from the facts in the case that no harm resulted to the defendant. In this case it does not so appear.

       The foregoing ruling being controlling in this case, it is unnecessary to pass upon the assignments of error on the overruling of the defendant’s motion for a continuance, upon remarks of counsel in opening the case, and upon the admission of certain testimony. It is not probable that any error that may have been committed.’ therein will recur ■ upon another trial.
    Decided November 7, 1918.

       Since a new trial is granted, the sufficiency of the evidence to support the verdict is not-passed upon.
    Indictment for seduction; from Gordon superior court—Judge Tarver. April 10, 1918.

      Maddox, McCamy & Shumate, for plaintiff in error.

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

This was a trial for seduction, and the only witness (except a witness for the State, an officer, in reference to the arrest of the defendant) was the prosecutrix. The defendant introduced no witnesses, but made a short statement, denying that he had promised to marry the prosecutrix. In the motion for a new trial it is complained that the court omitted to instruct the jury on the law touching, the defendant’s statement at the trial. This case is very much like that of Fields v. State, 2 Ga. App. 41, 47 (58 S. E. 327), where this court said: “'In this particular case the omission [to charge with reference to the defendant’s statement] was harmful, for the reason that the statement of the defendant and the evidence of the little girl (totally antagonistic to each other) were the only evidence in regard to the commission of the crime.' The statement of the defendant was in material conflict with the evidence offered against his plea, and for that reason it was the duty of the court, without request, to instruct the jury fully upon that subject.” In the instant ease we can not say that the omission to charge with reference to the defendant’s statement was not' harmful, and-must hold that the failure to do so was reversible error. Rivers v. State, 8 Ga. App. 694 (70 S. E. 47); Burns v. State, 89 Ga, 527 (15 S. E. 748); Doster v. State, 93 Ga. 43 (18 S. E. 997);Culver v. State, 124 Ga. 822 (2), 824 (53 S. E. 316).

We have not overlooked the qualifying note of the trial judge, and the testimony’taken upon the hearing of the motion for a new trial. It does not appear from this testimony, however, that counsel representing this defendant knew of the omission of the court to charge with reference to the defendant’s statement until after the verdict had been returned by the jury, when he made inquiry of.the court stenographer. Nothing appears in this testimony to cure the error.

Judgment reversed.

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


text:
    9838.
    Humphrey v. The State.
    Decided November 7, 1918.
    Conviction of shooting at another; from Quitman superior court —Judge Worrill. April 20, 1918.

      Charles W. Worrill, for plaintiff in error.

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

Judgment affirmed.

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


text:
    9852.
    McGhee v. The State.
    Decided November 7, 1918.
    Accusation of sale of liquor; from city court of Millen—Judge Dekle. April 22, 1918.

      James A. Dixon, for plaintiff in error.
   Harwell, J.

The jury resolved the questions of fact against the accused in this case; ahd, only the usual general grounds of the motion for a new trial having been urged in the court below or in this court, the discretion of the trial judge in overruling the motion for a new trial will not be controlled.

Judgment affirmed.

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


text:
    9891.
    Davis v. The State.
   Harwell, J.

1. The plaintiff in error was convicted of receiving stolen chickens, and his main contention for a reversal of the judgment (raised by the general grounds of the motion for a new trial) is that the conviction was based solely upon the testimony of two accomplices,— that of the two persons who stole the chickens and pleaded guilty to the theft. The rule of law requiring corroboration of the testimony of an accomplice (Penal Code of 1910, § 1017) refers to felonies, and has no application to misdemeanors. This has been repeatedly ruled by both the Supreme Court and this court.

Decided November 7, 1918.

Accusation of misdemeanor; from city court of Houston county —Judge Biley. May 13, 1918.

Emmett Houser, for plaintiff in error.

R. E. Brown, solicitor, contra.

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

Judgment affirmed.

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


author: Bloodwoeth, J.

text:
    9938.
    Martin v. The State.
    Decided November 7, 1918.
    Indictment for violation of prohibition law; from Cherokee superior court—JudgeMorris. May 20, 1918.

      John S. Wood, Howell Brooke, for plaintiff in error.

      Herbert Clay, solicitor-general, contra.
   Bloodwoeth, J.

The motion for a new trial contains the general grounds only. There is evidence to support the verdict, which has the approval of the trial judge, and this court will not interfere.

Judgment affirmed.

Broyles, P. J., and Harwell, J., concur.


text:
    9959.
    BARNES v. THE STATE.
    Decided November 7, 1918.
    The verdict finding the accused guilty of carrying a pistol is without evidence to support it.
    Accusation of misdemeanor; from city court of Floyd county— Judge Nunnally. June 26, 1918.

      W. B. Mebane, for plaintiff in error.

      J. F. Kelly, solicitor, contra.
   Bloodworth, J.

The defendant was convicted of carrying a pistol without a license. The evidence shows that a police officer went to the home of one Kizzie Terhune to search for whisky. The officer testified in part: “When I got into this room Kizzie Terhune and Felton Barnes were in the room. I first looked into a closet for some whisky, and then went to a trunk. The room was a small room and had a bed and other furniture in it. Upon finding whisky in the closet I handcuffed Kizzie Terhune and Felton Barnes together. I put the handcuffs on Kizzie’s right arm 'and on Felton’s left arm. Felton was sitting in a chair,close to the bed and trunk, and Kizzie was standing up and to the left of Felton Barnes. While these .people were handcuffed and Felton sitting down in the chair near the bed, I turned around to open the trunk and see what was in it. I siarted to open the trunk, and as I did so I looked around, and Felton Barnes had a pistol in his hand, and just as quick as I saw the pistol I suddenly caught hold of his wrist, and the pistol fell on the bed, next to which he was sitting. It had only been a second or two after I had taken my eyes off of him until I turned my head towards him and saw the, pistol. When I took my eyes off him I was standing up, and he was sitting in the chair, and then was, when I saw the pistol in his hand, and caused him to drop it by catching his wrist. Felton Barnes does not live in this house but lives out in the country. I do not know whose pistol this was. I do not know that Felton Barnes carried this pistol to the house with him. I do not know that he had the pistol on him just a few seconds before I saw him with it. I do not know that he picked this pistol up from the floor where he was sitting, or from under the bed, or from off the bed. I do not know what he was going to do with the pistol. I do not know where he got the pistol. All I know is that I saw the pistol in. his hand just for a moment. He never moved out of that chair to get the pistol, nor did he move after he got it. He didn’t take the pistol any where nor carry it any where.”

Kizzie Terhune testified: “I am the aunt of defendant. At the time in question Felton Barnes had come to my house and brought me some chicken feed and wanted to get some pills I had. He had been sick. .He came in a buggy. Shortly after he got there Mr. Eubanks came into the room where we were. Felton Barnes was sitting in a chair. Mr. Eubanks began to search for whisky and found some in the closet. When he found it he handcuffed me to 'Felton Barnes. Felton was sitting in a chair near the bed, and I was on the left side of Felton, he being between me and the bed. I saw Mr. Eubanks grab Felton, but I never saw the pistol in Felton’s hand. I was on the other side. Besides I am an old woman and can not see well, and was very much frightened at the time. I saw Mr. Eubanks take that pistol up off the bed and put it in his pocket, immediately after catching the hand of Felton. That was my pistol, and on that very afternoon I had bought some cartridges and put five in the pistol, and put the pistol on the floor under the bed, near where -Felton was sitting. Felton Barnes did not bring that pistol there with him that night, and it was not his pistol but was my pistol, and I saw the pistol lying there on the bed at-the foot, the last time, just before this raid was made by the officers.' I bought these cartridges and put them in this pistol because somebody had been stealing my chickens. Felton Barnes had nothing to do with it. Felton did not own this pistol, nor did he-have- any interest in it.” In his statement the defendant said: "I wa.s in my aunt’s house on this particular occasion, havnig gone there to take some chicken feed and get'some pills which she had. While I was sitting there in the room, in á chair near the bed, Mr. Eubanks came in and found some liquor in a closet, and then came and handcuffed my hand and Kizzie’s hand together. She was standing up and I was sitting down in the chair .near the bed. While sitting in the chair I noticed my .aunt’s pistol, and knew the officer would take it, and .picked it up for the purpose of putting it under the quilt to keep him from getting it, and just as I picked the pistol- up, to stick it under- the quilt, Mr. Eubanks grabbed my arm, and I immediately turned loose the pistol, and it fell in the spot on the bed from where I got it. I had not raised the pistol five Inches when he grabbed'my arm, and had it in my hand but a second. I -did not bring the pistol there. I do not carry a pistol, and- have none in my home, nor do I own a pistol. This pistol belongs to my aunt, and I .only took hold of it for the purpose of covering it up there on the bed, so the officer would not take it. I am not guilty of the offense with which I am charged.”

The evidence for the defendant is unimpeached and uneontradicted, and is entirely consistent with the evidence for the State. The same can be said of his statement to the jury. Considering all the evidence, it shows that the defendant had the pistol in his hand momentarily only, and "there is no evidence that he intended to physically convey the pistol in question to some other place than that at which he received it.” Applying the principles announced in the case of Jackson v. State, 12 Ga. App. 427 (77 S. E. 371), the evidence did not authorize ihe verdict, and the court erred in overruling the motion for a new trial. Amos v. State, 13 Ga. App 140 (78 S. E. 866) Cosper v. State, 13 Ga. App. 301 (79. S. E, 94).

Judgment reversed.

Broyles, P. J., and Harwell, J., concur


text:
    9960.
    Reeves v. The State.
    Decided November 7, 1918.
    Accusation of possession of intoxicating liquor; from city court of Floyd county—Judge Nunnally. June 27, 1918.
    From the evidence it appeared that the defendant lived and farmed on a part of a 160-aere tract of land owned by his father, on which, besides the house in which he resided, was a vacant house formerly occupied by him, and that several jugs, two of them containing about live gallons of whisky, were found in the vacant house by officers searching it about two months after he had moved out of it. The two houses were about 300 yards apart, and there was no path leading directly from one of them to the other. A distillery in a slough among trees and bushes was discovered by the officers on another part of the same tract of land, about 150 yards from where the defendant lived. The furnace, of the distillery was still warm, and, from appearances there, it seemed that “only one or two runs had been made.” There was a high hill between the defendant’s residence and the distillery, and the distillery could not be seen from the house. There was no direct path from the house to the distillery. In a closet of the defendant’s house an officer found a piece of copper pipe about three feet long, of the same size and kind as the pipe used in the distillery. Two barrels of beer were found in bushes near the distillery after the defendant had been arrested and put in jail. In his statement at the trial he said that the piece of pipe found in his house (described by him as iron pipe) was picked up by him in his yard soon after he moved into the house; that he had nothing to do with the distillery and did not know of it, that the land on which it was found was not a part of the land rented by him, and he was not in possession of it; that when he moved out of the house in which the whisky was found he surrendered possession of it and turned over the key; that he left no liquor in it and did not put any in it, and was not guilty of the offense charged. The defendant’s father testified to the same effect as to the land rented and in the possession of the defendant, and that when the 'defendant surrendered possession of the house in which the whisky’ was afterwards found, the defendant gave the key to him, and he (the witness) locked the house and took the key to Porterdale with him, and at that time there was no whisky in the house.
   Harwell, J.

The evidence relied upon by the State to connect the accused with the offense of having in his custody and control intoxicating liquor was wholly circumstantial in character, and did not exclude every reasonable hypoijiesis save that of the guilt of the accused. Accordingly, the court erred in overruling the motion for a new trial.

Judgment reversed.

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

W. B. Mebane, for plaintiff in error.

J. F. Kelly, solicitor, contra.


text:
    9985.
    Johnson v. The State.
    Decided November 7, 1918.
    Accusation of misdemeanor; from city court of Tifton—Judge Price. July 8, 1918.
    The accusation charged that the defendant, on February 17, 1918, in Tift county, did “lead a profligate and immoral life, and did then aid there wander and stroll about in idleness, being then and there able to work, and having no property to' support himself.” A ■ police officer testified: “I arrested Cleveland Johnson [the defendant] in Tifton, Georgia, about the 17th day of February, 1918. He was walking alóng the street . ■ . I saw him hereHór two or three days, idling and loafing around, and when T would see him he was walking about in town. The first time.I saw him was on Monday morning when he came to me and told me that he had put up $10 to act as a bond for the appearance of a negro woman by the name of Salutie Carter, and he stated he put up the' money for her appearance at the mayor’s court on Monday morning. On Tuesday morning he came to me again and asked me about the money, and I told him that the bond had been forfeited and he could not get the money back. • The next day I arrested him on a complaint made by some negroes about having given him some money to buy whisky with. . . He stated that he lived in Albany, Georgia, when I arrested him. . . He is a stranger in Tifton, as I have never seen him here before. From his looks I would say he is able to work.” The only other witness testified: “I was at the Union Depot when this man came to me and asked me if I did not want to buy some whisky. I asked him how much it was worth and he told me $2.50 a pint. I gave him $2 and told him to get me the whisky. He told me to wait until he came back, and Lwaited for some time, but he did not come, so I went on. He did not bring me any whisky. I had never seen him before I gave him the money to get the whisky and did not see him again until the trial in the justice’s court.” The defendant, in. his statement at the trial, said that he had never seen this witness before the trial in the justice’s court; that he had a regular job in Albany and worked all the time; that he came to Tifton on Sunday morning, February 15, 1918, intending to return to' Albany that night, but remained to get back $10 lent by him to Salutie Carter, which, on her arrest on Sunday, was put up for her appearance in the mayor’s court Monday; that he had more money than this $10, and was able to pay his way and expenses.
   Harwell, J.

The evidence was not sufficient to authorize- the verdict finding the defendant guilty of vagrancy, and a new trial should have been granted.

Judgment reversed,.

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

J. B. Murrow, for plaintiff in error.

J. S. Ridgdill, solicitor, contra.


text:
    9996.
    Stoker v. The State.
   Bloodworth, J.

1. There is no merit in those grounds of the motion for a new trial which complain of the admission of certain testimony of witnesses for the State as to finding a flask of whisky in the defendant’s pocket when searching his person while he was under arrest. Even had the arrest been illegal and the search unauthorized, as contended, the evidence would have been admissible. Smith v. State, 144 Ga. 679 (87 S. E. 893); Smith v. State, 17 Ga. App. 693 (88 S. E. 42).

2. The court did not err in admitting in evidence the contents of a jug and a flask which witnesses for the State found on the person of the defendant and examined, and which they testified1 positively contained “whisky,” although they testified also that they did not taste it and did not know that it was intoxicating. “The courts take judicial cognizance that whisky is both spirituous and intoxicating, and no proof of these facts need be made in any case.” Maddox v. Eatonton, 8 Ga. App. 817 (2) (70 S. E. 214); Hodge v. State, 116 Ga. 852 (43 S. E. 255).

3. There was no error in allowing the witness Jordan to testify after the State had closed, over the objection that the evidence was not in rebuttal. “Where, after the State had closed its case, the judge permitted an additional witness to be sworn in behalf .of the State, before argument had begun, and where it does not appear that the accused was deprived of the right to meet the testimony of such witness, such action upon the part of the judge was not sufficient to require the grant of a new trial merely because such testimony was not in rebuttal of any evidence submitted in behalf of the accused. The reopening of the case is in the sound discretion of the trial judge, and it will not be interfered with unless abused.” Glasco v. State, 137 Ga. 336 (73 S. E..578).

Decided November 7, 1918.

Accusation of misdemeanor; from city court of LaGrange— Judge Moon. July 6; 1918.

The accusation charged the defendant with having unlawful possession of alcoholic, and spirituous liquors and whisky.

Paragraph 4 of the decision relates to exceptions based on the following facts: When the Verdict of guilty was rendered the trial judge asked if any one present knew the defendant, and after hearing statements as to his character, and before the judgment was signed, announced that the defendant was sentenced to serve six months in the. chain-gang, “with the alternative of discharging the same by paying a fine of $300 within five days;” whereupon the judge was informed that some one else wished to speak about the defendant, and the judge said, “Hold on, I withdraw that sentence,” and heard other statements,, as to the bad character of the defendant,■ to which the defendant replied; after which the court imposed a written and signed sentence of six months in the chain-gang, without the alternative of paying a fine. • The bill of exceptions states that “the defendant objected and said objections were overruled,” and that he excepts to the action of the court “in withholding said sentence as first pronounced, and in hearing said unsworn testimony, and in sentencing the defendant to a term in the chain-gang without the alternative of paying a fine.

Arthur Greer, for plaintiff in error.

L. L. Meadors, solicitor, contra.

(a) The testimony was objected to en bloc, and at least a portion of it was admissible. “Where evidence is offered and objected to, and a portion thereof is admissible and a part objectionable, unless the illegal portion is specified and properly objected to, the whole will be admitted.” City of Atlanta v. Sciple, 19 Ga. App. 694 (3), 698 (92 S. E. 28), and cases cited.

4. There is no merit in the exceptions taken as to the action of the court in imposing sentence on the defendant. “The action of a trial judge in a criminal case, after a verdict of guilty is returned, in hearing further evidence in order to determine the character of punishment to be imposed, can .never be made the subject-matter of review in the Court of Appeals.” Gaskins v. State, 12 Ga. App. 97 (7), 101 (76 S. E. 777).

5. There was evidence to support the verdict.

Judgment affirmed.

Broyles, P. J., and. Harwell, J„ concur.


author: Broyles, P. J.

text:
    10004.
    McRae v. The State.
    Decided November 7, 1918.
    Indictment for manufacture of intoxicating liquor; from Wilcox superior court—Judge Crum. June 26, 1918.
    The indictment charged the accused with “the offense of making liquor, for that,” on the 12th day of May, 1918, in Wilcox county, he did “unlawfully and with force and arms knowingly permit and allow to be located on his premises and did possess apparatus for the manufacture of intoxicating liquors, wines, and beers, contrary to the laws,” etc. The demurrer was on the following grounds: (1) No offense is charged. (2) The indict-
    ment fails to allege by whom the apparatus for the manufacture of liquors was located on the premises of the defendant. The contrary not appearing, the presumption would be that the apparatus was located on the said premises and in the possession of the defendant ; which, if true, would constitute no offense against the laws of this State. (3) There should be stricken from the indictment the words, “and did possess;” for these words, taken in connection with the'words, “apparatus for the manufacture of intoxicating liquors,” etc.', would constitute no offense.

      M. B. Gannon, for plaintiff in error.

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

The indictment, drawn under section 22 of the act approved March 28, 1917 (Acts of Extraordinary Session, March 20-28, 1917, p. 18), sufficiently charged a criminal offense under the laws of this State, and was not subject to the demurrer interposed. Accordingly the court did not err in overruling the demurrer and! in refusing to quash the indictment.

■Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    10010.
    Martin v. The State.
    Decided November 7, 1918.
   Broyles, P. J.

1. There was no error in the admission of testimony complained of in the special ground of the motion for a new trial. The evidence was admissible for what it was worth.

2. The evidence in this ease, connecting the defendant with the whiskv found by the officer, while entirely circumstantial, was sufficient to exclude every reasonable hypothesis save that of the guilt of the accused; and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.

Accusation of misdemeanor; from city court of Floyd county— Judge Nunnally. July 15, 1918.

The accusation charged the defendant with having had in his possession, custody, and control intoxicating liquor. The only testimony was that of the sheriff, who testified that in a stable in which the defendant kept a jackass, where one Mullen lived, across the street from where the defendant lived,' he found a keg with six or sevén gallons and a quart-bottle of whisky, and several other bottles of whisky around the keg, 'in the jackass stall, in a trench which had been dug there; and he arrested Mullen and the defendant, and both of them denied knowledge of the whisky. He testified that Mullen “did not use the stable where the whisky was found.” Over the objection that it was irrelevant and tended to prejudice the jury against • the defendant, the court allowed the witness to testify as follows: “On a former occasion I saw Will Martin [the defendant] with a basket of shucks on his shoulder, carrying them over to that jackass. I came up behind him. He-looked around,, saw me, and said, ‘Why, Mr. Smith, you scared me. Don’t run upon me that way. You liked to have made me drop this basket.’ ” This is the testimony referred to in paragraph 1 of the decision. The defendant, in his. statement at the trial, said that the whisky found was not his whisky, and he did not know it was in the jackass stall; that the barn where the jackass was kept was on the place rented to Mullen by Mr. Harvey, and Mullen gave him permission to keep the jackass in the stall; that!he (the defendant) had nothing further to do with it; and that Mullen admitted, after his arrest, that the whisky belonged to him (Mullen), and that he (Mullen) put it there.

J. W. Ewing, for plaintiff in error.

J. F, Kelly, solicitor; contra.


text:
    10011.
    MILLS v. THE STATE.
    On the trial of a.criminal case “it is the right of the accused to be present at ’all stages of the proceeding,^and it is the duty of the court to see that he is present when any charge is delivered to the jury. If the judge recharges the jury without verifying for himself the prisoner’s presence, and it afterwards appears that the prisoner was not present but was in an .adjoining room in custody of an officer, and did not know that the jury was being recharged and knowledge did not come to him until after such recharge was concluded, it is cause for a new trial.”
    Decided November 7, 1918.
    Conviction of assault with intent to rape; from Early superior court—Judge Worrill. May 4, 1918.
    One of the grounds of the motion for a new trial was: “Because upon the trial of said case the court erred in the following point and particular: After the jury which was empanelled to try said case had been instructed by the court and had retired to their jury-room to deliberate on said case, the defendant left the courtroom in the custody of an officer of said court, crossed a corridor adjacent to said court-room, and entered a toilet, said toilet being so far removed from said court-room that he was outside of the hearing of the court, and while said defendant was so out of the court-room the presiding judge ordered the jury to be recalled, and upon their being recalled, the court, in the absence of the defendant, gave to the jury the following additional charge, to wit’: ‘Gentlemen of the jury, while it is not necessary to do so, I will charge the jury as to what the penalties are. The offense of assault with intent to rape is punishable by a term in the penitentiary for a period of not less than one nor longer than twenty years. Simple assault and assault and battery are both misdemeanors, and punishable by a fine or imprisonment, or else by fine and imprisonment,’-—-the said defendant not having waived his presence in any way; which charge, made in his absence from the court-room, movant insists is error, for the reason that the court had no right or authority to instruct the jury in the absence of the defendant from the court-room, the defendant not having waived his presence.” .After approving the grounds of the motion, the judge added thé following note: “The jury was called back in a few moments after the main charge. ’They had hardly had time to be well seated. If defendant was absent from the court-room his absence was voluntary, and the court was wholly unconscious of the fact, no notice having been given the court'of his intention to retire from the court-room. The court believed he was present, and, had the court’s attention been called to the fact that defendant wa.s out of the court-room, would not have given any part of the charge in his absence. The presentation of this amendment this morning is the first notice on my part that defendant claimed to have been absent at any part of the court’s instruction to the jury.”

      Park & Stone, for plaintiff in error.

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

(After stating the foregoing facts). The constitution of the State of Georgia provides that “No person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this State, in person, by- attorney, or both.” Art. 1, see. 1, par. 4; Civil Code (1910), § 6360. This paragraph of the constitution has been given a liberal construction in behalf of persons being tried for violations of the criminal laws of the State, and it has been frequently held by our Supreme Court that a defendant has the right to be present “at every stage of the proceedings.” We have failed to find a single case in either, this court or the Supreme Court in which the reviewing court has not granted a new trial on account of the absence of the accused, where he was absent under circumstances similar to those in this case, and where there was not a waiver of his presence, or he was not on bond and voluntarily absent. In the decision in Lyons v. State, 7 Ga. App. 50 (66 S. E. 149), we find the following: “It can not be questioned that the defendant had a right to be present during the whole of the trial and until the rendition of the verdict. This is a right so clearly and generally established that we deem it unnecessary to cite any authority. In some jurisdictions it is held that this right is limited to cases of felony, but the Penal Code of this State makes no distinction in this respect between felonies and misdemeanors. The accused has the right in all criminal cases to be present during the entire trial, not only in person, but also by his counsel. Constitution of Georgia, art. 1, sec. 1, par. 4. ‘The presence of the counsel was no substitute for that of the man on trial. Both should have been present.’ Bonner v. State, 67 Ga. 510; Martin v. State, 51 Ga. 567; Wilson v. State, 87 Ga. 584 (13 S. E. 566). ‘The great point is that the accused and his counsel have the right to be present át every stage,of the proceedings and personally see and know what is being done in the case. Bagwell v. State, 129 Ga. 172 (58 S. E. 650).”

In the case of Bagwell v. State, cited above, Chief Justice Fish said: “It has been frequently held by'this court that it is the right of the accused charged with a felony to be present a1 every stage of his trial, including his arraignment or waiver thereof (Wells v. Terrell, 121 Ga. 368, 49 S. E. 319); reading to ' the jury notes of the evidence taken by the court (Wade v. State, 12 Ga.35); the argument of counsel for the State (Tiller v. State, 96 Ga. 430, 23 S. E. 825); during the charge of the court (Hopson v. State, 116 Ga. 90, 42 S. E. 412, and cit.); and at the rendition of the verdict (Nolan v. State, 53 Ga. 137, s. c. 55 Ga. 521, 21 Am. R. 281; Barton v. State, 67 Ga. 653). In Wade’s case, supra, the court, after the jury had retired to consider the case, had them recalled to the court-room and read over- to them, in the absence of the accused, the written testimony as taken down by the court. In the opinion rendered Judge "Warner said: ‘This .was clearly error. The court has no more authority, under the law, to read over testimony to the jury, affecting the life or liberty of the defendant, in his absence, than it has to examine the witnesses in relation thereto, in his absence. The defendant has not only the right to be confronted with his witnesses, but he has also the right to be present, and see and hear all the proceedings which are had against him on the trial before the court. It is said the presumption must be that the court read over the testimony correctly, and read over all that was delivered against the defendant; therefore he was not injured. The answer is, that it was the legal right and privilege of the defendant, to have been present in court when this proceeding was had before the jury,in relation to the testimony delivered against him; and- he is to be considered as standing upon all his legal rights, waiving none of them.’ In Hopson v. State, supra, it was held: ‘Recalling a jury in a criminal case, who had retired to consider of their verdict, and, in the absence of the accused and his counsel and without their consent, giving a second charge, is cause for a new trial, even though this charge be the same, in substance, as that which had been delivered in the first instance.’ Mr. Presiding Justice Lumpkin, ■ in the opinion rendered in that case, said: ‘Nor does the fact that the ‘recharge’ was, in substance, the same as the original charge dispense with the necessity for ordering a new trial. The great point is that the accused and his counsel have the right to be present at every stage of the proceedings and personally see ahd know what is being done in the case. To say that no injury results when it - appears that what occurred in their absence was regular and legal would, in effect, practically do away with this great and important right, one element of which is to see to it that what does take place is in accord with law and good practice/ ”

The case of Wilson v. State, 87 Ga. 583, (13 S. E. 566), is almost an exact counterpart of the case under consideration. The opinion in that case was written by Chief Justice Bleckley, and is as follows: “The sixth ground of the motion for a new trial complains that the court recharged the jury without notifying defendant and in his 'absence, although his counsel was present. It appears from the record that the judge did not know whether the accused was present in the court-room or not when the recharge was delivered, and that the fact was that he was in an adjoining room in the custody of an officer, not knowing that the jury was being recharged, and knowledge did not come to him until after the recharge was concluded. Whether his absence from the room was voluntary or by compulsion, we think the court should not have recharged the jury in his absence. He was in the custody of an officer, and whether the officer took him to an adjoining room with or without his consent, it seems to us, made no difference. There is nothing to indicate that it was his intention to be absent when any material step was to be taken in the trial; and before taking such a material step as recharging the. jury, we are of opinion that the court should have seen and known that he was present, verifying the fact, if necessary, by ocular demonstration. The presence pf the counsel was no substitute for that of the man on trial. Both should have been present. Bonner v. State, 67 Ga. 510; Wade v. State, 12 Ga. 25; Marlin v. State, 51 Ga. 567.”

Under these decisions we cannot say that the charge was immaterial and harmless; for the reply is that the defendant has the right to be present at every- stage of the trial from arraignment to verdict.

Judgment reversed.

Broyles; P. J., and Harwell, J., concur.


text:
    10015.
    Holliman v. The State.
    Decided November 7, 1918.
   Broyles, P. J.

The verdict of voluntary manslaughter was authorized by the statement of the accused, and there is no merit in the special grounds of the motion for a new trial.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.

Conviction of manslaughter; from' Warren -superior court— Judge Walker. July 16, 1918.

M. L. Felts, for plaintiff in error.

B. G. Norman, solicitor-general, contra.


text:
    10031.
    Wyatt v. The State.
    Decided November 7, 1918.
    ' Accusation of misdemeanor; from city court of .Carrollton-— Judge Beall, June 27, 1918. -

      H. C. Strickland, Buford Boykin, for plaintiff in error.

      Willis Smith, solicitor, contra.
   Harwell, J.

The defendant was convicted of having, controlling, and possessing intoxicating liquor. No error of law on the trial is complained of; the evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, P. J., and Bloodworfh, J., concur.


text:
    10045.
    Bellamy v. The State.
    Decided November 7, 1918.
    Indictment for sale of liquor; from Candler superior court— Judge Hardeman. July 22, 1918.

      Kirkland & Kirkland, for plaintiff in error.

      Walter F. Grey, solicitor-general, contra.
   Harwell, J.

1. In his motion for a continuance the defendant did not comply with all the requirements of the Penal Code (1910), § 987, necessary to make a complete showing, and, therefore, the court did not err in overruling , the motion.

2. The court correctly instructed the jury upon the theory of agency, raised by the defendant upon the trial, but the jury evidently rejected this theory and found the defendant to be the seller ’ of the whisky.

3. There was evidence to authorize the verdict, and, it having been approved by the trial judge, this court can not interfere.

Judgment affirmed.

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


text:
    10052.
    Tyson v. The State.
    Decided November 7, 1918.
    Indictment for assault with intent to murder; from Wayne superior court—Judge Highsmith. July 13, 1918.

      James B. Thomas, for plaintiff in error.

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

1. The evidence for the State made out a case of assault

with intent to murder. The theory of mutual combat, on which the plaintiff in error insists the court should have charged the jury, was raised, if at all, only by the defendant’s statement at the trial. In the absence of a timely written request therefor, the court did not err in failing to charge the law of voluntary manslaughter. Lott v. State, 18 Ga. App. 747 (2, 3) (90 S. E. 727); Green v. State, 22 Ga. App. 793 (97 S. E. 201).

2. Certain special grounds of the motion for a new trial were based upon alleged newly discovered evidence of two witnesses. The supporting affidavits did not comply with the rule that.“If the newly discovered evidence is that of witnesses, affidavits of their residence, associates, means of knowledge, character, and credibility must be adduced,” (Civil Code, § 6086) ; and the court did not err in overruling these special grounds of the motion for new trial.

3. The* defendant was convicted of assault with intent to murder, and upon recommendation of the jury the court sentenced him as for a misdemeanor. The evidence authorized the verdict.

Judgment affirmed.

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


text:
    10097.
    MILES v. MAYOR AND ALDERMEN OE SAVANNAH.
    Decided November 7, 1918.
    A conviction under a municipal ordinance on the charge of disorderly conduct was authorized by the testimony of the police officers, who, in “making a raid on the house” of a woman, discovered in a room of the house, in which there was very loud and boisterous talking, the defendant, with two women, and a partly filled bottle of whisky, a glass of whisky, empty glasses “that appeared to have been just used,” and several empty whisky bottles.
    Certiorari; from Chatham superior court—Judge Meldrim. June 37, 1918.

      Robert L. Colding, for plaintiff in error.

      Robert J. Travis, David S. Atkinson, contra.
   Bloodworth, J.

In the police court of the city of Savannah the plaintiff in error was convicted of violating the following ordinance of the city: “Any person who shall, in the night or day disturb the peace and quiet of the city in any manner whatsoever, or shall be guilty of any riotous, disorderly, or improper conduct, or keep a disorderly house within the limits of the City of Savannah, such person shall, on conviction before the police court, be fined in a sum not exceeding one hundred dollars, or be imprisoned not exceeding thirty days, or both, at the 'discretion of the police court; each day’s keeping of a disorderly house to be considered a separate offense.” The case was carried by ceftiorari to the superior court, and in passing on it Judge Meldrim, after referring to this ordinance, said in his order: “The evidence of

Policeman Millikin was as follows: 'On the night of January 30, 1918, Officer Moerke and I had reports that D. D. Miles, a white man, was going to Celia Pritchard’s house, the latter being a negro woman.. On the night of January 30, 1918, we were informed that he was in the house. On going there we heard a graphophone playing, and very loud and boisterous talking inside. We knocked at the door, which was opened by Celia Pritchard. Going in, we passed through the parlor into the dining-room, where we found D. D. Miles, white” seated at the dining table, and'a negro woman sitting at the table with him. Miles had his hat and coat off and his collar was loose at the front. A half-pint bottle, of whisky partly filled was on the .table. There were two empty glasses, one by him and one by the negro woman. On his right side was a chair which had been vacated by Celia Pritchard, with- a drink of whisky in a glass before the vacant chair. We also found several empty half-pint bottles of whisky in the house.’. If this officer tells the truth (and for the purpose' of this certiorari I must assume that he does), it would seem that the plaintiff in certiorari was guilty of 'improper conduct’. The explanation of the plaintiff in certiorari, that, 'being fond of music,’ he sat down for a few minutes to listen to .the playing of the-instrument, when the officer arrested him, was not satisfactory to the recorder, and I am not prepared to say that the sentence of the recorder was without evidence-to sustain it. The certiorari is overruled.” The testimony recited above was supplemented by testimony to the same effect from an officer who assisted “in making a raid on the house of Celia Pritchard.” There is some evidence to support the judgment rendered in the police court, which finding is approved by -the judge of the superior court, and this court will not interfere.

Judgment affirmed.

Broyles, P. J., and Harwell, J., concur,


author: Luke, J.

text:
    9502.
    Bentley, relator, v. Irvin.
    Decided November 8, 1918.
    Motion to disbar attorney; from Wilkes superior court—Judge Walker. ,
    P. B. D’Orr, L. S. Hulbert, for plaintiff.

      W. D. Thomson, for defendant.
   Luke, J.

The hill of exceptions in this case has never been served, nor has service been waived; and' therefore the writ of error is

Dismissed.

Wade, C. J., and Jenkins, J., concur.


author: Wade, C. J.

text:
    9533.
    WALKER v. O’CONNOR.
    Decided November 8, 1918.
    1. The death of a member of the bar employed as counsel in a majority of the cases' pending in the superior court of a county is not such cause as will authorize the judge in vacation to order an adjournment of the next regular term of the court.

      (a) A request by counsel for an adjournment of a term of the court to a stated time to which it can he legally adjourned is not to be treated as a' consent to adjournment in a manner not. authorized' by law, and will not estop him from objecting to the trial of a case at that‘time, where- the judge’s order providing for adjournment to that time is issued at a time or in a manner not authorized by law.
    2. Under the provisions of the code as to special terms of the superior' court (Civil Code of 1910, § 4876), the judge was authorized to pass an order, on the day illegally set for the convening of an adjourned term, providing for the convening of a special term on that day, and. requiring the attendance of the jurors drawn for the preceding regular term, those- jurats being present when this order was passed.
    3. The affidavit of illegality having been filed before the time for the preceding regular term, the case stood for trial, and, counsel for the affiant being present and declining to try the ease when it was called for trial at the special term, the court' did not err in dismissing it for want of prosecution.
    Affidavit of illegality; from Dade superior court—Judge Tarver. November 19, 1918.
    The exceptions are to the dismissal of an affidavit of illegality. The affidavit was filed in April, 1917, and the time fixed by law for the commencement of the next regular term of the superior court to which the case was returnable was the third Monday in ■ September, 1917. No term of the cpurt was held at that time, an adjournment to November 11, 1917, having been previously ordered by the judge in vacation, for the reason stated in the following opinion. On the-day thus set, the judge, in an order reciting-that there was some question as to the legality of the adjournment, provided for the holding of a .special term on that day, and required the attendance of the jurors who had been drawn for the September term, and who were present when this order was passed. The case was afterwards called for trial on the same day,- and counsel for the affiant objected, as follows: -“Affiant insists that this court can not legally at this time try this illegality, an illegality, under the law, being triable'only at the next regular term of the court after the same has been filed and returned; affiant insisting that this court can not at this time legally try either the questions of law or the questions of fact raised under the illegality.” The bill of exceptions states that “counsel for affiant having declined to try said illegality, the court dismissed the same for want of prosecution;” and this is assigned as error, for the following reasons:~ 1st. Because the regular September term, 1917, of said court was illegally adjourned. 2d. Because an illegality filed to an execution can only be tried at the next regular term, after filing. 3d. Because the court did not summon, or cause to be summoned, new jurors for the special term, nor did the court compel the attendance of jurors who had served at the. last regular term, as the law requires.”

      Martin G. Smith, for plaintiff in error.

      W. E. Wilkinson, McClure, Hale & McClure, contra.
   Wade, C. J.

The death of a prominent- member of the bar shortly before the time for convening a term of the superior court is not such cause as will legally authorize the judge in vacation to adjourn the term. Civil Code (1910),- §§ 4873-5; Hoye v. State, 39, Ga. 718; Frank v. Horkan, 122 Ga. 38 (49 S. E. 800). See also Osgood v. State, 63 Ga. 791, 792; Allen v. State, 74 Ga. 769. The judge of Dade superior court issued an order in vacation, September 11, 1917, adjourning the next regular term of that court from the third Monday in September, 1917, to the third 'Monday in November, 1917, upon the unanimous petition of the bar of the county, setting forth that one of its members, who was of counsel -in a majority of the cases pending in the court, had died a few days before; to which petition counsel for the plaintiff in error in this case was a party; and by virtue of this order alone the adjournment of the court on the third Monday in September was attempted in the absence of the judge. Under the provisions of the Civil Code (1910), §§ 4874, 4875, the adjournment was unlawful; and the fact that counsel for plaintiff in error had joined in the request that the regular term be adjourned to a later date did not estop him from raising the objection, when the court convened at the time fixed by the order of adjournment, that the adjournment was irregular and illegal; for it cannot be assumed that counsel consented to an illegal adjournment, but, on the contrary, the request may be treated as a request and agreement that the court be adjourned legally,—as, for instance, by the judge in person on the first day of the regular term.

The order of adjournment directed that the jurors drawn for the- regular September term should appear and serve at the adjourned term to be held on the third Monday in November, and they were actually present in the court on the day and hour set. It appears from the bill of exceptions that on the 19th day of November, 1917, (the day to which it was attempted to adjourn the September term), “before the court had convened and before the grand jury had been sworn, and before the case of J. T. Walker v. J. J. O’Conner” had been called, the judge passed an order reciting that some question had arisen as to' the legality of the adjournment of the regular September term from the third Monday in September, 1917, to the third Monday in November, 1917,. and that it further appeared that the business of the court necessitated the holding of a term thereof at that time, and ordered that the said superior court convene on the said 19th day of November, 1917, at 10 o’clock, a. m., for the purpose of dispatching all business therein or which might be brought to the attention thereof, and that for that purpose the grand and traverse jurors regularly drawn and summoned to the September term, 1917, should be in attendance for the purpose of serving as grand and traverse jurors at the said term commencing on the third Monday in November, 1917. The jurors, being actually then and there present in court, and being the jurors drawn for the previous regular term, were lawful jurors under the provisions of the Civil Code, § 4876, and under the terms of the order passed by the presiding judge requiring them to serve at the special term. Penal Code, § 880. The regular September term, not having been held at the time fixed by law, or legally adjourned to a subsequent date, had ended by operation of law before the special term was called, and the jurors drawn for the said regular September term were therefore at the date of the special term jurors “of a previous term.”

Counsel for the plaintiff in error being present at the special term of court and declining to try the case made by the affidavit of illegality interposed by his client, the court did not err in dismissing the case, for want of prosecution. The affidavit of illegality was filed in April, 1917, and the case stood for trial at the next regular term after the filing, of the affidavit, or at any subsequent term. Civil Code (1910), § 5307.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


author: Jenkins, J.

text:
    9580.
    Central of Georgia Railway Company v. Trammell.
   Jenkins, J.

1. While the evidence hy no means necessitated the finding' of the jury that the engine of the railroad company caused the fire Which resulted in injury to plaintiff’s property, still it can not be said that the finding in this respect was unauthorized as being without evidence to support it; and therefore the conclusion reached and entered by the jury on this point can not be disturbed. Gainesville &c. R. Co. v. Edmondson, 101 Ga. 747, 751 (29 S. E. 213).

2. Upon it being shown by the plaintiff that the injury to his property was occasioned by sparks emitted', from the defendant’s'locomotive, a rebuttable presumption thereupon arose that the loss was brought about by the alleged negligence of the defendant in failing to exercise the required ordinary care and diligence in the equipping of its engine with proper appliances to prevent fire, as well as in keeping them in proper repair, and in the operation of the engine. Civil Code (1910), § 2780; Southern Railway Co. v. Thompson, 129 Ga. 367, 372 (58 S. E. 1044) ; Southern Railway Co. v. Smith, 21 Ga. App. 814 (95 S. E. 328).

3. While, in order to rebut the presumption thus raised against it, evidence was submitted on behalf of defendant to the effect that at the time of the fire proper spark-arresting appliances were attached to the engine, and' that they 'had been regularly inspected and were then in first-class condition, and while the plaintiff also adduced testimony showing that the engine was upon this occasion handled with all due care and diligence, there was, on the other hand, evidence to the effect that at the time the damage was occasioned the engine was in point of fact emitting sparks of “unusual” number and size, “which flew out in flakes,” “some as large as partridge eggs.” Since the issue of fact as to whether the defendant had exercised the diligence required of it in preventing an unnecessary and unreasonable outflow of sparks from its engine could thus be arrived at and determined by reference to the testimony of defendant, on the one hand, as to what was the truth of the matter in regard to the proper equipment and operation of the engine, and the entirely irreconcilable testimony for the plaintiff, on the other hand, as to what actually was the fact in the case, the finding of the jury as made upon such disputed' issue will not be disturbed. Southern Railway Co. v. Williams, 113 .Ga. 335 (38 8. E. 744). See, in this connection, Jarrell v. S. A. L. Ry., 21 Ga. App. 415 (94 S. E. 648).

Decided November 8, 1918.

Action for damages; from Monroe superior court—Judge Searcy. January 12, 1918.

4. The request to charge upon the burden of proof and the preponderance of evidence, as embodied in the first ground of the amendment to the motion for a new trial, states a correct principle of law; but since the general principles referred to were actually-given-by the court in language just as clear and even more -elaborate, there is no merit in this assignment.

5. “Contentions may be proved as well by circumstances as.by direct testimony, and in a civil ease the plaintiff is only required to establish liis contentions by a preponderance of the testimony, and he is not required, even where relying only upon-circumstantial evidence, to establish them to the exclusion of every other reasonable hypothesis.” Pelham Phosphate Co. v. Daniels, 21 Ga. App. 547 (15) (94 S. E. 846). The court, therefore, did not err in refusing to give the requested instruction contained in the second ground of the amendment to the motion for a new trial.

6. It is complained that the court refused a request to charge as follows: “I charge you that the defendant had a right to operate its trains by the use of steam produced by fife, and that persons placing combustible property close alongside the track take the chances of fire from locomotives equipped and operated with due caution on the part of the defendant.” This request contains no principle of law not fully covered by the charge given. The ruling made in Atlantic & Birmingham Railway Co. v. Sumner, 134 Ga. 673 (6) (68 S. E. 593), is not understood to mean that the precise language of this excerpt must be given upon request in all cases such as the instant one, even though the court may have fully and clearly covered the issues of the case and correctly stated in other terms all of the legal principles therein contained. Cosby v. Reid, 21 Ga. App. 604 (2) (94 S. E. 824). It may have been that in the opinion of the trial judge the particular language of this request, though embodying correct legal principles, tended or inclined towards argumentativeness, and that for this reason he preferred to make a different statement of the same rules. For similar reasons ground 4 of the motion for a new trial is without merit.

7. There was no error in overruling the exceptions to the allowance of the plaintiff’s amendment setting up the kind and character of the alleged negligence on the defendant’s part. From the nature of the case, these allegations must be taken as sufficiently definite. See, in this connection, the authorities cited in Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (94 S. E. 892), on motion for rehearing.

Judgment affirmed.

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

B. S. Willingham, Cleveland & Goodrich, for plaintiff in error.

Persons & Persons, contra.


text:
    9593.
    McKENZIE, administratrix, v. McKENZIE, executrix.
    Decided November 8, 1918.
    This action is one at law, based on an express contract, and, whatever might be the plaintiffs rights in an equitable proceeding, he was not. entitled to recover on an agreement to which he' was not a party or privy, though made for his benefit.
    Complaint; from city court of Atlanta—Judge Eeid. October 11, 1917.

      Walter S. Dillon, for plaintiff, cited:
    2 Ruling Case Law, 776, 778-9; Culbreath v. Culbreath, 7 Ga. 68; Phillips v. Crews, 65 Ga. 277; Finch v. Cox Co., 19 Ga. App. 258.

      King & Spalding, for defendant, cited:

      Gunter v. Mooney, 72 Ga. 205; Austell v. Humphries, 99 Ga. 408; Cooper v. Claxton, 122 Ga. 596; Sheppard v. Bridges, 137 Ga. 615; Crawford v. Wilson, 129 Ga. 659; Civil Code (1910), § 3733; Malone v Malone, 137 Ga. 429.
   Jenkins, J.

J. H. McKenzie brought suit against Eula E. McKenzie, as executrix of the estate of W. M.,McKenzie, alleging that on or about June 4, 1912, there was a settlement of the affairs of a certain partnership known as the Sims-McKenzie Grain Company, of which the plaintiff’s son, Ealph L. McKenzie, was a partner; that Ealph L. McKenzie had obtained money from the plaintiff to invest in the partnership, and on the date of the settlement owed him the amount sued for; that in the settlement of the affairs of the partnership Ealph L. McKenzie received of E.- S. Sims, another partner, a note for $1,884.11; that Ealph L. McKenzie transferred the note to W. M. McKenzie, deceased, with the understanding that the “amount” thereof should be paid by said W. M. McKenzie to'the plaintiff; that although said note has been paid by said E. S. Sims, W. M. McKenzie has never paid plaintiff anything on the same, though he told plaintiff many times that he would do so, and plaintiff brings this suit to recover this sum from the defendant as executrix of the estate of W. M. McKenzie. TJpon the trial of the ease Ealph L. McKenzie testified as follows: “In the wind up E. S. owed me $1,884.11, and he gave me a note for that amount, and I turned it over to J. M. [W. M.] McKenzie—the amount over to him, and he was to give my father a check for it. . . The note was given by Mr. Sims to me and' I indorsed it to W. M., and he turned and gave Mr. Sims a check for $3,000, and that made $4,844, and he took some two or three or four houses on the loan. That wound it up so far as I was concerned. He was to pay my father. It wasn’t to be collected. He had Sim’s note and he had a deed for these three or four houses from Sims. . . In the agreement of June 4, 1912, Mr. McKenzie agreed to give Mr. Sims a $3,000 check. He agreed to take the note that Mr. E. S. Sims had given to me; he agreed to take that note and to pay my father the $1,884. -He made that agreement with me in that contract, he made it with Mr. Sims and myself, that he was to take the note of E. S. Sims indorsed by me, and pay J. H. McKenzie $1,884.” The evidence failed to show that the plaintiff was either a party or a privy to such contract, or that the defendant made any promise to the plaintiff himself to pay this money to him. After the conclusion of the plaintiff’s testimony, the court passed the following order: “The plaintiff having failed to make out a cause of action under the pleadings, and after the evidence of plaintiff was all in, upon oral motion of the defendant to dismiss this case the same is sustained and the case dismissed.” After the case came to this court J. H. McKenzie died, and Kalph L. McKenzie, as administrator of his estate, was made a party in his stead.

As in Austell v. Humphries, 99 Ga. 408 (27 S. E. 736), the action here must be “considered to be one at law based upon an express contract” (Sheppard v. Bridges, 137 Ga. 615, 629, 74 S. E. 245); and, whatever might be the plaintiff rights in a proper equitable proceeding, he can not maintain the present legal remedy by which he seeks to enforce an agreement to which die was not a privy, and which was made between other and different parties. The allegations of the petition, together with the evidence for the plaintiff by Kalph L. McKenzie, bring the case squarely within the ruling made'in Sheppard v. Bridges, supra.

Judgment affirmed.

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


text:
    9671.
    Louisville & Nashville Railroad Co. v. Hemphill.
    Decided November 8, 1918.
    Action for damages; from Murray-superior- court—Judge Tarver. March 9, 1918.

      C. N. King, D. W. Blair, for plaintiff in error.

      H. H. Anderson, contra.
   Luke, J.

1. The jury were authorized to find that the presumption of negligence on the part of the railroad company, which arose on proof of the killing of the plaintiff’s mule by a train of the company, was not rebutted by the evidence introduced by the defendant.

2. When considered in connection with the i-emainder of the charge of the court and in connection with the pleadings and contentions of the parties, the excerpt complained of was not error.

3. The petition, as amended, was not subject to the demurrers urged and overruled. The court did not err in overruling the motion for a new trial. See Seaboard Air-Line Railway v. Moore, 20 Ga. App. 33 (92 S. E. 388), and cases cited.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.


text:
    9887.
    Burkhalter v. Savannah Guano Company.
    Decided November 8, 1918.
   Luke, J.

This is a suit on plain promissory notes, given for the purchase-price of fertilizers. The defendant admitted a prima facie case ‘and assumed the burden of making good his defenses, which were: (1) that the .fertilizer sold—“Southern Hustler” and “Pineland”—■ were not registered with the department of agriculture as. required' by law; (2) that the actual analysis of the fertilizers sold fell below the standard required by law; and (3) that there was a failure of consideration in the fertilizers.

1. Under the evidence adduced on the trial, the defendant failed to carry the onus assumed by him as to the 1st and 2d defenses referred to above, and therefore the trial judge did not err in charging the jury adversely to the defendant as to these defenses.

2. The 3d defense relied upon was submitted by the court to the jury, whpse verdict in favor of the plaintiff has the approval of the trial judge and is supported by some evidence, and therefore cannot be controlled.

3. In view of the rulings made above, and -after a most careful and thorough consideration of the several grounds of the motion for a new trial, this court is constrained to hold that they are without substantial merit.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.

Complaint;, from city court of Reidsville—Judge .Collins. May • 21, 1918;

W. T. Burkhalter, H. H.Elders, for plaintiff in error.

Anderson, Gann, Gann & Walsh, J. V. Kelley, contra.


text:
    9903.
    WILSON v. WILDER.
    Decided November 8, 1918.
    1. The provision of the code that “admissions or propositions made with a view to a compromise are not proper evidence” (Civil Code of 1910, § 5781) does not apply to the testimony in this case as to the defendant’s statements to the plaintiff to the effect that he had damaged the plaintiff’s piano and that he would pay the full amount of the damage—$100 in a few days and the remainder after finding what the damage would be.
    2. There was evidence to authorize the verdict, and the judge of the superior court did not err in overruling the certiorari.
    Certiorari; from Eulton superior court—Judge Pendleton. May 19, 1918.

      Munday & Cornwell, for plaintiff in error.

      Tye, Peeples & Tye, contra.
   Wade, C. J.

The only question presented by the record which requires any discussion is whether or not the trial court erred in admitting in evidence the following testimony: “In response to letter . . he (the defendant). ■ came up. and told me (the plaintiff) he had damaged the piano. . . He said he was sorry, and wanted to know what the damage was, and I told him I could not tell at that time. I told him I thought it would be in the neighborhood of a couple of hundred dollars to put the instrument in condition.' He said he did hot have the money to pay it. I told him to go ahead, and if he would pay part of it, I would figure out what the damage would be—what the actual cost was—and he could pay it along as he could, and he said he would. . . He said it would take two or three days to get this money together. . . and I told him if he would pay $100 at a time and later on, when we found what the amount would be he could pay the balance. . , He was to pay the full amount (of damage to the piano), but at that time I did not know what the full amount would be. . . He said he thought he could pay $100 in a few days, and the balance when he found out what the damage-would be. I told him that would be satisfactory.” This evidence was objected to on the ground that it amounted to no more- than an admission or proposition made with a view to “compromise”*the claim, and was therefore inadmissible under the provisions of section 5781- of the Civil Code, which declares that “admissions or propositions made with a view to a compromise, are not proper evidence.” ■ - . '

As we view this testimony, the admission or proposition contained therein and- which came from the defendant was not .made with a view -to a compromise, and therefore was not subject to the objection urged. The evidence objected to fails to disclose any dispute whatever between the litigants as to liability. Neither does the evidence in question directly or indirectly show any agreement or offer by the plaintiff to accept an amount less than the “full damage” to his property.' In other words, the plaintiff did not offer to yield any portion of his alleged rights in an effort to adjust the claim, but insisted upon a full settlement of the entire damage—no more or no less. Obviously, therefore, under no construction of the testimony complained of can it be said that the admission of liability by the defendant was made with a view to a compromise, since the evidence, narrowed down to its last analysis, merely amounts to an offer on the part of the plaintiff, to settle for the “full” damage only, which offer, though accepted by the defendant, was never consummated. While it is true that the plaintiff estimated the damage at $200, he never agreed to accept this amount in full- settlement of the claim, as his plain language is that he would only accept a sum that would fully reimburse him for the damage done to his property, which sum would be determined at a later date. No definite amount in settlement of the claim was ever arrived at or agreed upon between the parties. In other words, the damages were never liquidated. Neither were any specific terms of compromise ever suggested. “Even if a general proposition of settlement has been made by one party," the admissions of the opposite' party may be admissible if no specific terms of compromise [italics ours] have been suggested.’” Austin v. Long, 5 Ga,. App. 551 (63 S. E. 640). So, also, “There is a distinction between an offer or proposition to compromise a doubtful or disputed claim [italics ours], and an offer to settle upon certain terms ’ a claim. that is unquestioned [italics ours]. .An.' admission made in an offer of the latter character -will be admissible, when one made in an offer of the former character is not.” Teasley v. Bradley, 110 Ga. 506 (35 S. E. 782, 78 Am. St. R. 113). It cannot be said that the claim under consideration was a doubtful or disputed one, since the evidence objected! to shows beyond question that the defendant admitted his liability, and accepted plaintiff’s offer to settle for the full amount of the damage, as soon as liquidated.

As bearing upon the question under discussion and showing that unless negotiations for a compromise, participated in by both parties, were pending, admissions of liability, resultant from an offer to settle the claims in full, are not inadmissible, see Hatcher v. Bowen, 74 Ga. 840 (c); Cooper v. Jones, 79 Ga. 379 (4 S. E. 916); Akers v. Kirk, 91 Ga. 590 (18 S. E. 366); Central R. Co. v Papot, 59 Ga. 343 (5). In the Cooper case, supra, although the writer termed his letter an offer to compromise, it was held that “a letter from the purchaser of goods to the seller thereof, requesting the latter to take back a portion of the same, and another containing an offer to pay the seller fifty cents on the dollar in-settlement of his entire demand, there being no existing dispute or controversy between the parties as to the seller’s right to have the money or the purchaser’s liability to pay it, are not such propositions made with a view to compromise, proof of which 'is forbidden by the statute.-” In the opinion in that case Judge Lump-kin, speaking for the court, says: “If two contending 'parties are involved in a controversy, each insisting that the other is wrong, and each claiming his rights to be different from what is asserted by the other, and if, for the sake of reaching a settlement, one makes a proposition by which he offers to yield some portion of his alleged rights, and asks his adversary to do the like, this might be an effort to compromise which the law would not allow.to be proved against him in case the effort failed. . . If Cooper had insisted he owed Jones less than the latter -demanded, asserting reasons why he was entitled to a deduction, and if, in view of their conflicting claims, he had made an offer to settle for less for the sake of peace and to obtain an amicable adjustment, the question would be a different one; but as it stands, it is free from difficulty, and it is a safe conclusion that the court did right in admitting the letters.” See in this connection Mayor &c. of Colum bus v. Howard, 6 Ga. 213; Parker v. Walden, 16 Ga. 27; Howland v. Bartlett, 86 Ga. 669 (12 S. E. 1068).

The evidence objected to not being in its nature an effort to “compromise,” but being a clear-cut admission on the part of the defendant of his liability and an agreement to pay the full amount of the damage, when liquidated, the trial court did noot err in deciding in favor of its admissibility.

Judgment affirmed.

Jenkins and Luke, JJ., concur.