author: Bloodwobth, J. Bloodworth, J.

text:
    9478.
    HALL v. THE STATE.
   Bloodwobth, J.

1. This court can not say that the trial judge abused his discretion in overruling the original motion to continue the case, or the motion to continue made after the filing of the plea in abatemént.

(а) “All applications for continuances are addressed to the sound legal discretion of the court.” Penal Code (1910), § 992.

(б) “While ample time to prepare for trial should be allowed to one accused of crime, it is the duty'of a defendant, who has given bond for his appearance at a-specified term of the .' . court, to employ counsel and take any other steps essential to his defense, in advance of the term of court at which he is bound to appear.” Walker v. State, 11 Ga. App. 251 (74 S. E. 1100).

(e) “In order for this court to control the discretion of the trial judge in. refusing to grant a motion for the postponement of a criminal case to allow counsel to prepare for trial, it is necessary that it should appear that a gross mistake has been made by the trial judge, or that he has displayed a want of consideration for the rights of the accused.” Harris v. State, 119 Ga. 114 (45 S. E. 973).

2. Although the accused at the time of the trial was under bond, the court did not err in refusing to declare a mistrial because “the solicitor-general, when a juror had answered all the questions showing [him] to be competent, would then state, ‘The juror is competent,’ and in each instance, while the juror was standing in full view of and facing the defendant, the solicitor-general would say, ‘Juror, look upon the prisoner. Prisoner, look upon the juror;’ speaking these words in strong tones; and called upon the individual jurors to look upon 1;he defendant, and designated him as the prisoner.” Allen v. State, 18 Ga. App. 1 (1), 4 (88 S. E. 100).

3. Under the facts of this ease it was not error to admit, over the objections urged, the answer of PI. Giddens, a witness for the State, to a question of the solicitor-general, as to why he was sent and why he went to the place where the cattle had been butchered: “We are missing some cows down there, and he sent me in there to look out for somebody butchering beeves.” Penal Code (1910), § 1023; Stevens v. State, 77 Ga. 310 (2) (2 S. E. 684); Cody v. State, 124 Ga. 446 (52 S. E. 750).

4. Grounds of a motion for a new-trial should be complete in themselves; and when a particular ground is under consideration, reference to other grounds, or to the brief of evidence, should not be required in order to understand the assignments of error, or to know whether the errors, if there were any were reversible. Bowen v. Smith-Hall Grocery Co., 146 Ga. 157 (4) (91 S. E. 32); Smiley v. Smiley, 144 Ga. 546 (2) (87 S. E. 668); Southern Railway Co. v. Williams, 19 Ga. App. 544 (4) (91 S. E. 1001). Under this ruling the 5th, 6th, and 7th grounds of the amendment to the motion for a new trial can not be considered.

Decided April 2, 1918.

Rehearing denied May 1, 1918.

Indictment for larceny of cow; from Coffee superior court-judge Summerall. . December 28, 1917.

Chastain & Henson, W. TFV Bennett, for plaintiff in error.

M. D. Dickerson, solicitor-general, Wallace & Luke, contra.

5. No error was committed in refusing to allow in evidence the map of Coffee county, made by one Peterson, as to which the witness testified in part as follows: “I could not swear that it is a correct map of Coffee county,' and I don’t know whether it represents all the land in Coffee county. ... It has not a certificate of the Secretary of State upon it certifying it to be a correct map. . . I don’t know whether it was taken from an original map of Coffee county. I don’t know anything about the original map, and I didn’t see it made.” Nor was it error to rule out the evidence of the witness Cornelius in reference to the map.

6. Grounds 9 and 10 of the motion for a new trial are based on the fact that certain evidence was admitted one day and allowed to remain with the jury until the next, when it was ruled out. When this evidence was originally offered, the judge said: “I will let it go in for the • present.” „ In ruling it out he said: “The evidence of William Pender, where he'testified that Ike Moore said, ‘I have been handling some beef this afternoon, and this old mule is a fool,’ that statement with reference to that is ruled out, and you need not consider that statement in making your verdict.” When considered in connection with all the proved facts in the ease, this evidence was not of such a character as to take it out of the general rule that when testimony is erroneously admitted the error is cured if subsequently the trial judge rules the evidence out and instructs the jury to disregard it. See Rentfrow v. State, 123 Ga. 539 (51 S. E. 596), where it was said: “It appeal’s that before the argument began the court ruled out the evidence objected to, and instructed the jury to disregard it; and so, conceding that the admission of the evidence in the first place was erroneous, that error was completely cured, and. the accused has no ground for complaint.” See also Smith v. State, 16 Ga. App. 691 (85 S. E. 973).

7. The court did not err in overruling all of the motions of the defendant to declare a mistrial.

8. As qualified by the presiding judge there is no merit in ground 11 of the motion for a new trial.

9. There is evidence to support the verdict.

Judgment affirmed.

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

ON MOTION FOR REHEARING.

Bloodworth, J.

Tlio original opinion in this case as agreed upon by the court covered every issue raised by the motion for a new trial, but, by the inadvertence of the writer, the copy\ furnished the reporter dijl not conform to the opinion agreed upon. This oversight has been remedied and a correct copy has been filed.

In the motion for rehearing it is said that paragraph 6 of the decision (in reference to grounds 9 and 10 of the amendment to the motion for a new trial) did not pass upon certain assignments of error with reference to the admission of certain testimony. When the ruling of the lower court is construed in connection with the objection to the evidence, we think the only proper construction the jury t could put upon the ruling of' the judge, that the evidence of Mr. William Fender with reference to the statement of Ike Moore was ruled out, was that the ruling referred to all the evidence of Mr. Fender with reference to the statement of Ike Moore.

In the motion for rehearing it is insisted that the court overlooked the contention of the plaintiff in error that the evidence did not authorize a conviction, because there was no proof that M. M. Giddens, alleged in the indictment to be the owner of the stolen cattle, was the same person as Mose Giddens, clearly shown by the evidence to be the owner of said property. This point was covered by the last paragraph of the déeision: “There is evidence to support the verdict.” While no witness swore directly that M. M. Giddens and Mose Giddens were one -and the same person, the evidence authorized the jury to infer that M. M. is Mose. It is not insisted that M. M. and Mose are in fact two different persons, nor that M. M., alleged in the indictment to be the owner of the stolen property, was a different person from Mose, shown by the evidence to be the owner thereof. “The identity of the owner as charged, and as proved, was for the jury.” Robinson v. State, 68 Ga. 833 (2). “The jury had the right to consider the question of identity, not alone in the light of the testimony specially referred to, but also in the light of all the attendant circumstances. They were satisfied with the identity, as is evidenced by their verdict, and we will not disturb it on this account. Mitchum v. State, 11 Ga. 615, 620; McLain v. State, 71 Ga. 279 (6); Powell v. State, 9 Ga. App. 614-616 (71 S. E. 1013). Rehearing denied.


source: Caselaw Access Project

author: Harwell, J.

license: Public Domain

text:
    9479.
    SANDLIN v. THE STATE.
    The evidence was not sufficient to authorize the verdict of guilty.
    Decided April 2, 1918.
    Indictment for larceny; from Dooly superior court—Judge Crum. December 22, 1917.
    Tbe defendant was indicted for larceny of seed-cotton, alleged to have been stolen from the buggy-house of Haslam, the prosecutor. The State’s evidence showed that the cotton was in sheets in the prosecutor’s buggy-house, and above the cotton was a loft on which were some oats, and from which oat chaff had fallen through cracks on the cotton. The evidence against the defendant was entirely circumstantial. In’ his cotton-house, on the morning after the cotton had been stolen, was found a small quantity of cotton similar to the stolen cotton, with some oat chaff in it. The cotton was said to have been of a-kind known as the Wanamaker short-staple cotton. The defendant showed, however, that some of his tenants delivered him some of this Wanamaker or'big-boll cotton, and that he also raised this particular kind of cotton. The State’s evidence showed that tracks went from the buggy-house across the road or street towards the defendant’s residence, but, according to the State’s testimony; they were not tracks of the defendant. They were smaller than those made by the defendant. There was evidence that on the morning after the larceny the defendant was plowing up the field which lay between the road and his cotton-house, and that he sold a bale of cotton on that day. The evidence further showed that tracks of a wagon led to the country, in the road at the place where the tracks leading from the buggy-house were found. A witness for the defendant testified that the defendant passed her house early in the night, going to a meeting (which he claimed to have attended that night), and that she heard him return from the meeting later in the night, that a short while* after he passed her house a wagon loaded with seed-cotton passed the house driven by a negro and a white man. The defendant denied that he stole the cotton, and offered evidence in explanation of these circumstances against him. He also offered evidence that on the night of the larceny he was at a meeting some distance from his home.
    The court, in charging the jury, treated the case as a felony. The defendant was convicted with a recommendation that he be punished as for a misdemeanor, and the sentence of the court gave him a misdemeanor punishment. He made a motion for a new trial, which the court overruled, and he excepted.

      Jule Felton, for plaintiff in error. J. B. Wall, solicitor-general, Jesse Grantham, Powell & Lumsden, contra.
   Harwell, J.

(After stating the foregoing facts.) The evidence against the defendant was entirely circumstantial. These circumstances while sufficient to cast suspicion upon him did not exclude every other reasonable hypothesis save that of his guilt. We think therefore that the evidence offered by the State was not sufficient to sustain the verdict of guilty, and that the court erred in overruling the motion for a new trial. This question being controlling, other grounds of the motion are not passed on.

'Judgment reversed.

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


author: Broyles, P. J.

text:
    9483.
    Rickerson v. The State.
    Decided April 2, 1918.
   Broyles, P. J.

1. Under section 1062 of the Penal Code of 1910 all felonies (except certain ones specifically named therein), upop the recommendation of the jury trying-the case, when the recommendation is approved by the presiding judge, “shall be punished as misdemeanors.” It follows that the manufacturing of intoxicating liquors (which is .not one of the exceptions named therein) is a felony which can, upon the recommendation of the jury trying the case, when the same has been approved by the trial judge, be punished as a misdemeanor. And this is true although the statute making the manufacturing of intoxicating liquors a felony was enacted subsequently to the' enactment, of this code-section. The court, therefore, in this case did not err in instructing the jury that if they found the defendant guilty they could recommend that he be punished as for a misdemeanor.

2. The court did not err in. refusing to give the requested charge-set forth, in the motion for a new trial. The legal and pertinent portions of the request were sufficiently covered by the general charge.

3. It does not clearly appear from the record whether the principal witness for the State was an accomplice of the accused. However, if it be conceded that she was, her testimony (which demanded the conviction of the defendant) was corroborated by independent facts and circumstances which strongly pointed towards his guilt and authorized the jury to find that her testimony had been sufficiently corroborated.

4. The verdict was supported by the evidence, and the court did not err in réfusing to grant a new trial.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.

Indictment for manufacturing intoxicating liquor; from Morgan superior court—Judge Park. December 31, 1917.

Allen & Pottle, Williford & Lambert, for plaintiff in error.

Doyle Campbell, solicitor-general, Bichará B. Bussell, contra.


author: Bloodworth, J.

text:
    9484.
    Chatfield v. The State.
    Decided April 2, 1918.
    Indictment for misdemeanor; from Crawford superior court-judge Mathews. December 8, 1917.

      B. H. Gulverhouse, W. J. Wallace, for plaintiff in error.

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

The motion for new trial contained only the'general grounds, there was evidence' to support the verdict of guilty, and, the Verdict having the approval of the trial judge, this court will not interfere.

■Judgment affirmed.

Broyles, P. J., and Barwéll, J., concur.


text:
    9485.
    CHORAN v. THE STATE.
    1. Where there is some evidence to authorize the verdict, and it is approved by the trial judge, this court can not interfere.
    2. The credibility of a witness is a matter to be determined by the jury, and neither bad character nor conviction of crime renders a witness incompetent.
    3. The newly discovered evidence, being merely cumulative and impeaching in its character, was not cause for a new trial.
    Decided April 2, 1918.
    Indictment for unlawful sale of liquor; from Douglas superior court—Judge Bartlett. December 19, 1917.
    Arthur Choran was charged with selling liquor. H. L. Dorris, a witness for the State, testified: “I went and hunted up Arthur Choran and told him that I wanted to get a quart' of whisky. He had a quart of corn whisky in his hip-pocket pants, in a bottle, and .he let me have the whisky. I told him it was for Lon Beggs and another party. I bought the whisky and paid him the money in Douglas county that Lon gave me,—one dollar. This was in the month of January or February, 1917.” The defendant in his statement at the trial said: “I have not dealt with any whisky, so far as being engaged in its traffic, for over two and a half years. I was tried in Paulding superior court two years ago, and served a while in jail, and paid out the fine. About the same time there was a bill of indictment found against me by the grand jury of this county. I came here, and was tried. This case in Douglas county was concerning the same liquor that I was indicted for in Paulding county. I lived a few miles over Douglas-county line. I was tried the last time before Tarver. He fined me $50 and gave me a short sentence in the chain-gang for three months. I was not guilty of that offense, and I made a motion for new trial, which is now pending, and I expect to have the verdict set aside. I quit the liquor business two and a half years ago,” etc. The defendant proved, on cross-examination of the witness Dorris, that the witness had pleaded guilty to furnishing liquor to a minor; and there was testimony of other witnesses to the effect that they tried to get whisky from the defendant that, day and that he did not have any, but that the witness Dorris did have a pint and a quart-bottle of whisky under the cushion seat of his buggy, and that he took it out and went off with it. The jury found the defendant guilty, and the sentence was that he pay a fine of $500, or in lieu thereof be confined in the chain-gang for twelve months. He moved for a new trial on the usual general grounds, and on two additional grounds, one of which was disapproved by the court, and the other of which was based on newly discovered evidence of two witnesses to the effect that the State’s witness, Dorris, had liquor and sold liquor on the day on which he claimed to have bought the liquor from the defendant. The motion was refused and the defendant excepted.

      James & Bedgood, for plaintiff in error.

      J. B. Hutcheson,, solicitor-general,'contra.
   Harwell, J.

(After' stating the foregoing facts.) The defendant’s own witness testified that he tried to get some whisky from the defendant on the day the defendant was charged with having sold it. This was a circumstance which the jury had a right to take into consideration. The defendant in'his statement admitted that he had sold whisky illegally, that he had been convicted several times of so doing, and that he was at that' timé under sentence for selling whisky, and that he had a motion for * new trial pending. The testimony of the State’s witness, Dorris, included every material'fact necessary .to convict the. defendant, and undoubtedly made out a case against him. Where no error of law is committed, as in the instant case, and there is some evidence on which to base the verdict, this court has no authority to interfere. Edge v. Thomas, 9 Ga. App. 559 (71 S. E. 875); Toole v. Jones, 19 Ga. App. 24 (90 S. E. 732).

There was testimony that the State’s principal witness had whisky on the day that he was alleged to have bought it from defendant, and he admitted having sold it and being under indictment for selling it; still the jury had a right to believe him, and evidently did believe him. The credibility of a witness is a matter to be determined by the jury, and neither bad character nor conviction of crime renders a witness incompetent. Penal Code, § 1054; Stone v. State, 118 Ga. 705 (6), 714 (45 S. E. 830, 98 Am. St. R. 145); Ray v. State, 91 Ga. 87 (16 S. E. 311); Pace v. Hazlehurst, 9 Ga. App. 203 (70 S. E. 967).

The newly discovered evidence was merely cumulative and impeaching in its character, and was not sufficient to Tequire a new trial. It only purported to show that the State’s witness had and sold some whisky on the. day that he claimed to have bought some from defendant. Sweat v. State, 90 Ga. 315 (3), 316 (17 S. E. 273); Potter v. State, 12 Ga. App. 315 (77 S. E. 186).

There being no error of law, and there being sufficient evidence to authorize the verdict, the judgment is

Affirmed.

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


author: Beoyies, P. J.

text:
    9486.
    Davis v. The State.
    Decided April, 2, 1918.
    Indictment for burglary; from Houston "superior court—Judge Mathews. December 15, 1917.
   Beoyies, P. J.

1. When considered in connection with its context, the excerpt from the charge of the court, to which exception was taken, was not erroneous for the reason assigned.

2. The evidence authorized a finding that the storehouse Jin question had been broken into and entered.

3. The verdict was supported by the evidence, and the court did pot' err in refusing a new trial.

' Judgment affirmed.

Bloodworth and Harwell, JJ., concur.

B. N. Poltzclaw, for plaintiff in error.

John P. Boss, solicitor-general, contra;'


text:
    9496.
    BARNEY v. THE STATE.
    1. Under the facts of this case it was not error to refuse to declare a mistrial because a police officer, on cross-examination by counsel for the accused, said, in regard to the accused, “We had him up. here before.”
    2-4. There was sufficient evidence to authorize a finding, that the accused was guilty of the charge of having intoxicating liquors in his possession, and that the time of the commission of the offense was within the statute of limitations. The question as to venue, raised in the motion for a new trial, was not argued in the brief of counsel for the plaintiff in error, and therefore is treated as having been abandoned.
    Decided April 2, 1918.
    Accusation of misdemeanor; from city court of Savannah— Judge Eourke. December 22, 1917.

      Shelby MyricTc, for plaintiff in error.

      'Walter C. Partridge, solicitor-general, contra.
   Harwell, J.

Prince Barney was charged with selling intoxicating liquors, and also with having intoxicating, liquors -in his possession. He was found guilty of having intoxicating liquors in his possession. The officers who searched his place found a considerable quantity of liquor on and near his premises, in quarts and half-pints. It was testified that this' was his place of business, that he stayed there all the time, lived there, and had a dance going on there on the night on which the officers found the liquor, and one witness testified that the defendant • said that the place in question was his place. In his statement at the trial the defendant denied that the place belonged to him, and said that he knew nothing about the liquor being there. He made a motion for a new trial, which the court overruled, and he excepted.

The special ground of the motion for a new trial complains that the court refused to declare a mistrial because one of the • State’s witnesses, the chief of the county police, on cross-examination, testified in response to- a question asked him by counsel for plaintiff in error, "We had him up here before.” This ground sets out that the following occurred in the cross-examination of this witness: "Q. Don’t you know that it is her (Hettie Green’s) place? A. No, I know it is Prince Barney’s. Q. I mean the title to it. A. The title on the books is Prince Barney’s. Q. How do you know? A. 1 know it is; I went and looked at it, at the tax-book. Q. What made you go and look at it? A. We had him up here before. By counsel for defendant: I ask for a mistrial in this case on account of that statement. By the court: I decline to grant it. By counsel for defendant: The answer was not responsive to my question. By the court': I decline to grant a mistrial in the case. The jury are not trying whether he was here before or not, but on the evidence in this case.” No motion was made to rule out the testimony, defendant’s counsel simply making a motion for a mistrial. There was no error in refusing to declare a mistrial under these circumstances.

The ground that venue was not proved, not being argued in the brief of counsel for the plaintiff in error, will be treated as abandoned.

The proof was sufficient to fix the time of the commission of the offense, and to show that it was within the statute of limitations. The sheriff was with the other officers when the raid on the defendant’s place was made and the liquor found on his premises. In connection with his testimony describing the raid and the finding of the liquor at defendant’s place of business, the sheriff testified: “I am Sheriff of Chatham county and was such on September 12th of the present year [1917]; that is the date this violation is said to have occurred,—on Monday night.” The record shows that the trial occurred on November 3, 1917. The testimony of the sheriff fixing the time and describing the finding of the liquor at defendant’s place of business was' not, as the record shows, based on hearsay, but on his own knowledge of the facts about which he was testifying.

The verdict finding the defendant guilty of having intoxicating liquors in his possession was amply supported by the evidence, and the trial judge properly refused to grant a new trial.

Judgment affirmed.

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


author: Beoyles, P. J.

text:
    9497.
    Goldberg v. The State.
    Decided April 2, 1918.
    Accusation of misdemeanor; from city court of Savannah— Judge Rourke. December 22, 1917.

      Shelby Myriolc, Robert L. Golding, for plaintiff in error.

      Walter G. Eartridge, solicitor-general, contra.
   Beoyles, P. J.

1. An indictment must allege a certain time within the statute of limitations, but on the trial the date may be established by circumstantial evidence. Ordinarily, when a month is referred to, it will be understood to be of the current year, unless from the connection it appear that another is intended. Tipton v. State, 119 Ga. 304 (46 S. E. 436).

2. The accusation alleged that the offense was committed on the 27th day of October, 1917. The case was tried in November, 1917. Upon the trial there was testimony that the defendant committed the offense on “the 27th day of October.'” It is evident from the record that both the State and the accused understood that the proof went to establish the commission of the act on the day charged in the indictment, and a new trial will not be-granted on the ground that the evidence left uncertain the time when the offense was committed. Tipton v. State, supra; Jordan v State, 119 Ga. 443 (46 S. E. 679).

3. Under the facts of the case it was not error for the court to refuse the request to charge the jury the law as to positive and negative testimony, as embodied in section 5751 of the Civil Code of 1910.

4. “In every case it is largely within the discretion of the trial judge, at any stage of the proceedings, to permit the case to be opened and new evidence submitted by either party; and this court will not reverse the court below in the exercise of such discretion, unless it appears that from an abuse thereof the plaintiff in error has lost some substantia] right, the allowance of which probably would have affected the verdict rendered.” Powell v. State, 101 Ga. 9 (3), 18 (29 S. E. 309, 65 A. S. R. 277). When this ruling is applied to the facts of the instant case it does not appear that the court erred in allowing the case to be reopened by the State, over the defendant’s objections, after the arguments had been made and the judge had commenced his charge. Nor was this action of the court erroneous for any of the reasons assigned.

5. There was an attempt to impeach a witness for the defense solely because of alleged contradictory statements previously made by him as to a material issue in the case. It was therefore not cause for a new trial that the judge did not qualify his instructions to the jury on the subject by informing them that a witness might be impeached by proof of such contradictory statements only as related to matters relevant to his testimony and to the case on trial. Tucker v. Central of Georgia Ry. Co., 122 Ga. 387 (50 S. E. 128). The charge on the'subject of impeachment of witnesses was not erroneous for any other reason assigned.

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

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9498.
    Stephens v. The State.
    Decided April 2, 1918.
    Accusation of misdemeanor; from city court of Monroe—Judge -Stone. January 4, 1918.
    T[ie accusation charged Bay Stephens with “the offense of misdemeanor, decoying, persuading, and enticing” a farm laborer, for that the defendant, on the 3d day of September, 1917, in Walton county, Georgia, “by requesting'and urging said Judge Broughton to go home with him and work out a balance which he claimed said Judge Broughton was due him, and by then and there including [inducing ?]. said Judge Broughton to get into the car in 'the possession of and being run by said Bay Stephens, did entice and persuade and decoy and did thereby attempt to entice and persuade and decoy said Judge Broughton to leave the service of J. H. Sorrells, his employer, the said Judge Broughton, then and there being the servant and farm laborer of J. H. Sorrells, employed as such under verbal contract beginning September 3d, 1917, and to continue of favor [?] and effect until said Judge Broughton should have paid in work, and labor the equivalent of $56.05 at the rate of $15.00 per month, the said Judge Broughton being then and there actually in the service of said J. H. Sorrells, and the said Bay Stephens then and there knew that said Judge Broughton was so employed; contrary to the laws of said State,” etc. The defendant demurred on the grounds that the accusation fails to charge any offense, and “fails to state any word or act of incitement or inducement on the part of the defendant whereby he influenced the will of the alleged servant so that the latter became dissatisfied with his alleged employment and was allured ¿way.”
   Bloodworth, J.

1. The demurrer to the accusation was properly overruled.

2. “This court can not consider exceptions to the refusal of the trial judge to comply with written requests to charge, unless it is made to appear that they were tendered to the court before the jury retired to consider the ease. Shirley v. State, 5 Ga. App, 611 (63 S. E. 583). In this case it is not disclosed that the written requests to charge were so tendered.” Seaboard Air-Line Ry. v. Barrow, 18 Ga. App. 261 (4) (89 S. E. 383) ; Seaboard Air-Line Railway v. Lyon, 18 Ga. App. 266 (6), 267 (89 S. E. 384).

3. There was some evidence to. support the verdict.

Judgment affirmed.

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

Rogers & Knox, for plaintiff in error, cited,

on the demurrer: Penal Code (1910), § 125; Watson v. State, 124 Ga. 454; Hudgins V. State, 126 Ga. 639, 642; Broughton v. State, 114 Ga. 34; Solomon v. State, 14 Ga. App. 115; Johnson v. State, 90 Ga. 441; Brown v. State, 116 Ga. 562; Carter v. State, 12 Ga. App. 432 (2); United States v. Hess, 124 U. S. 483; McAllister v. State, 122 Ga. 745-6.

U. W. Roberts, solicitor, contra, cited:

Penal Code (1910), § 954; Hudgins V. State, supra; Youmans v. State, 7 Ga. App. 101 (4); Holt v. State, 5 Ga. App. 184 (1); Bazemore v. State, 121 Ga. 619; Bright v. State, 4 Ga. App. 333-6.


text:
    9505.
    Cleveland v. The State.
    Decided April 2, 1918.
    Indictment for misdemeanor; from city court of Polk county— Judge John K. Davis. January 24, 1918.
    The indictment charged the defendant with having used to and of a certain female and in her presence obscene, vulgar, and profane language tending to cause a breach of the peace, to wit: “No, I am not the one; any one who says I am is a God damn liar.” According to testimony for the State, Mrs. Pay, the female named in the indictment, said to the defendant, in regard to a fence, “You tore down the fence, you are on us;” and he said, “I am not, the one that says I am tells a God damned lie.” According to other testimony for the State hé said he did.not think the fence was over the line, and said, “The one that says it tells a God damned lie.” The defendant denied that he used the language1 charged; and, according to his statement and testimony of his .witness, Mrs. Ray’s .son, who accompanied her at the time referred to by the State’s witnesses, said to him, “I have come here to see you [or “you all”] about stealing my land,” or “that land.”
   Broyles, P. J.

1. The language which the evidence for the State showed that the defendant used was substantially the same as charged in the indictment, and there was no variance between the indictment and the proof.

2. Under the facts of the case it was error for the court to refuse to give the following requested charge to the jury: “If you find that the defendant used substantially the language set out in the indictment, he may defend and justify himself by showing that he was provoked to use the language by on'e other than such female; the sufficiency of the provocation being a question for the jury, under all the circumstances of the case.” Ray v. State, 113 Ga. 1065 (39 S. E. 408).

3. There is no merit in the remaining ground of the amendment to the motion for a new trial.

Judgment reversed.

Bloodworth and Harwell, J.J., concur.

Bunn & TrawicJc, for plaintiff in error.

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


text:
    9507.
    CLARK v. THE STATE.
    The evidence, while circumstantial, was sufficient to sustain the verdict, • and the court did not err in overruling the motion for a new trial.
    Decided April 2, 1918.
    Indictment for larceny of cow; from Mitchell superior court— Judge Harrell. June 9, 1917.

      Johnson & Warren, for plaintiff in error.

      B. G. Bell, solicitor-general, F. A. Hooper, contra.
   Harwell, J.

The plaintiff in error was indicted for stealing a cow belonging to the farm of Jackson Brothers. The State’s evidence showed that the cow described in the indictment was missing, and was found in the possession of one McDaniel; and he testified that he bought the cow from one Bozeman. Bozeman testified that he (Bozeman) bought the cow from the defendant, and gave him $10 for her. The defendant made no statement in explanation of his possession. The_only ’ witness introduced by the defendant testified that the cow that he saw the defendant put in Bozeman’s pasture was of a description different from that given in the indictment. The motion for a new trial was based upon the general' grounds only. It is not necessary to add anything further to the headnote.

Judgment affirmed.

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


author: Brotles, P. J.

text:
    9508.
    Clark v. The State.
   Brotles, P. J.

The evidence in this case, though circumstantial, was sufficient to exclude every other reasonable hypothesis than that of the guilt of the accused. Therefore the verdict finding him guilty of cow-stealing, which has the approval of the trial judge, will not be disturbed. Judgment affirmed.

Decided April 2, 1918.

Indictment for larceny of cow; from Mitchell superior court— Judge Harrell. August 22, 1917.

Johnson & Warren, for plaintiff in error.

B. 0. Bell, solicitor-general, F. A. Hooper, contra.

Bloodworth and Harwell, JJ., concur.


text:
    9516.
    CASPER v. THE STATE.
    1. Under the undisputed facts the solicitor-general was not disqualified, by reason of interest, to represent the State in obtaining the indictment, and the court did not err in directing a verdict against the plea in 'abatement.
    2. The offense charged was receiving stolen goods. The evidence against the defendant being circumstantial and not being sufficient to authorize a finding that he knew that the goods were stolen, the court erred ' in overruling the motion for a new trial.
    Decided April 2, 1918.
    Indictment for receiving stolen goods; from Ben Hill superior court—Judge Crum. December 28, 1917.

      McDonald & Bennett, Bldridge Gutts, for plaintiff in error.

      J. B. Wall, solicitor-general, Jesse Grantham, O. H. Bllcins, . contra.
   Harwell, J.

The indictment charged the accused with receiving certain stolen brasses, the property of the Atlanta, Birmingham & Atlantic Railway Company, knowing that they had been stolen. He filed a plea in abatement to quash the indictment upon-the ground that the solicitor-general was interested, and therefore disqualified to represent the State in obtaining the indictment. The plea set up that the Atlanta, Birmingham & Atlantic Railway Company was the real prosecutor and had claimed the entire amount of the brass, and that the solicitor-general was local attorney for the railway company, and was representing the railway company in the assertion of its claim, adversely to the claim of the defendant. The plea further alleged that the solicitor-general was interested as paid attorney in the representation of the claim of the railway company to the brass, and was interested by reason of his regular employment by said railway company. Upon the issue thus made a jury was sworn and evidence introduced. The evidence shows substantially that the solicitor-general was local-counsel for the railway company, employed to represent the company in civil matters only, and that he did not represent it in any criminal prosecutions; that at the time this indictment was obtained the railway company was asserting no claim to the brass that the solicitor-general knew of; that the civil litigation between the .defendant and the railway company started some time after the indictment was obtained; that the solicitor-general advised the agent of the railway company, after this prosecution arose, to hold the shipment of brass, and to have it returned, to be held as' evidence in the instant case; that he did not do this as local counsel for the railway company, but as representing the State in the prosecution. The defendant tendered in evidence the pleadings in the civil suit of the defendant against the railway company, filed in March, 1917, for the recovery of three barrels of junk brass, in which the railway company’s answer was signed by Bolling Whitfield and Wall & Grantham, attorneys for the railway company; Mr. Wall, the solicitor-general, being a member of the firm of Wall & Grant-ham. The State objected to the introduction of these papers, upon the ground that they were immaterial and irrelevant, the suit being filed after the finding of the indictment, the date of which was in October, 1916. The court sustained this objection and excluded this evidence, and the defendant excepts to this ruling. After the introduction of evidence on the plea in abatement, the court directed a verdict against it; and to this ruling the defendant excepts.

The defendant insists that under the facts, as substantially stated above, the solicitor-general was disqualified, under the provisions of section 4929 of the Civil Code of 1910, and section 805 of the Penal Code. He insists that the case of Nichols v. State, 17 Ga. App. 593 (87 S. E. 817), is controlling. It will be seen however, on examination of that case, that it is easily differentiated from the instant case. In that case the solicitor-general was counsel for the plaintiff in a suit for damages against the railroad company, and his fee was contingent,—that is, dependent upon his client’s recovery of damages from the defendant. The criminal prosecution arose and the indictment was obtained after the pendency of the civil suit, in fact after the civil suit had been tried, and grew out of the trial of the civil case. Clearly, therefore, under the facts of that case the solicitor-general was disqualified by reason of interest. The cases of Baker v. State, 97 Ga. 452 (25 S. E. 341), and Hicks v. Brantley, 102 Ga. 271 (29 S. E. 459), are easily distinguished from the instant case, as will be seen on examination of those cases. Counsel cite no authority for the proposition that the solicitor-general is disqualified and that the indictment obtained against the defendant should be quashed because of employment of the solicitor-general in a civil suit or proceeding arising after the institution of the criminal prosecution. We do not think that under the facts as they appear in the instant case the solicitor-general was disqualified. At the time the indictment was obtained no litigation had arisen between the defendant and the railway company over the brass alleged to have been stolen. At that time the solicitor-general had no knowledge that the railway company would set up any claim to the brass. Neither does it appear that he had been consulted by the railway company with a view to representing that company in any civil proceeding. It is true that he had advised with the agents of the railway company as witnesses in the criminal prosecution at the time the indictment was obtained, just as he is accustomed to advise with witnesses who go before the grand jury. The interest 'which disqualifies a solicitor-general from acting is the interest which he has, personal or otherwise, at the time that the indictment is obtained. It is very clear, therefore, that under the facts as they appear in the record, there was no merit in the motion to quash the indictment upon the ground of the disqualification of the solicitor-general. For the reasons heretofore stated the court did not err in excluding the evidence of the civil proceeding between the defendant and the railway company, which suit was filed several months after the indictment in the instant case was obtained.

Neither did the trial judge err in directing a verdict against the defendant on the issue made by this plea. It was insisted that the issue should have been submitted to the jury; but, conceding everything that was shown on behalf of defendant, there was no issue of fact for ajury. The facts, considered most strongly in behalfiof the defendant, showed no legal disqualification of the solicitor-general and no reason for quashing the indictment. In the ease of Spencer v. State, 125 Ga. 255 (54 S. E. 144), Mr. Justice Beck, speaking for the court, said that where one-indicted for crime files a plea in abatement; he must affirmatively establish the ground of his plea, otherwise it is not error for the court to direct a verdict against- him.

The indictment alleged that the stolen brasses belonged to the Atlanta, Birmingham & Atlantic Bailway Company, and described them as being part of certain engines, and car-bearings branded A. B. & A., and locomotive brasses consisting of parts of lubricators, injectors, cheeks, rod brasses, etc. It was further alleged that these brasses were stolen by parties to the grand jurors unknown, and that Casper knew at the- time he received the goods that they were stolen. There was evidence that the defendant had shipppd some twelve or fifteen barrels of junk brass to Birmingham over the Atlanta, Birmingham & Atlantic Bailway; that one of -these barrels was broken when the shipment arrived at Manchester, and that the, agents for the railway company recognized some of it as brass belonging to the company, and picked out three barrels of this shipment, sent it back to Fitzgerald, and held it until the trial of this case. The agents of the company, in their testimony in behalf of the State, identified several pieces of this brass as belonging'to the company’s engine No. 100, and stated that these pieces were missing at the time that this engine was repaired. The defendant introduced a number of witnesses and offered evidence for the purpose of showing that shipments of brass were made to him from various sections where parties bought brass for him of the character of that in the three barrels which were held up by. the railway company. He further offered evidence to show that at the time, that certain locomotives belonging to the railway company were sold as junk and torn up and shipped off, he bought several hundred pounds of brass.from one Johnson, who had in hand the matter of tearing up these engines and shipping them off as junk for the firm purchasing the engines. Johnson testified, in behalf of the State, that he did not sell the defendant several hundred pounds of brass, but sold him thirty-five pounds. • The State introduced also some letters written by the defendant to Johnson, requesting Johnson-to appear as.a witness in his,behalf, and calling attention to the purchase, as defendant claimed, of several hundred pounds of brass by him from Johnson.

The evidence in. the case is voluminous, and we have carefully gone through the record to determine whether- or not there is any evidence to show, or to authorize the jury in finding, that the defendant received .this brass with knowledge of the fact that it was stolen. While we are not inclined, and in fact are not authorized, to disturb the verdict if there is any evidence to support it, we fail to find.in this record any evidence in support of the proposition that jhe defendant knew at the time that he received this brass that it was stolen. As a matter of fa’ct, while the defendant, as the record clearly indicates, apparently purchased considerable quantities of junk brass, very little of this shipment which was made by him, and apparently very little of the three barrels which were .returned to Fitzgerald, was identified as belonging to the railway company and as being stolen. The evidence relied on to show knowledge on the part of the defendant that any of this brass was stolen was entirely circumstantial. That being true, in order for the conviction to be sustained, the evidence must be sufficient to exclude every other reasonable .hypothesis than that of his guilt. We do not think that if measures up to this requirement. While' there is a discrepancy between the defendant’s testimony and that of the State as to the amount’of brass purchased by him from one Johnson, who was in charge of breaking up and. shipping away some old engines which had been purchased from" the railway company, we do not think that this discrepancy is sufficient to authorize his conviction. As a matter, of fact the weight of testimony on this issue as to the amount of brass purchased from Johnson is de- ‘ cidedly in the defendant’s favor. Neither do we think.that the circumstance of the amount of brass purchased, handled, and shipped by the defendant is sufficient to authorize the conclusion that he had knowledge that the brass was stolen, especially in view of the facts that the State identified only a1 small quantity of this-large shipment as being missing or stolen from the railway company; and that the evidence clearly shows that the 'defendant handled large quantities of brass, shipped to him from’ various sections of the State. We think, therefore, that the. evidence was insufficient’ to authorize the conclusion that the defendant had knowledge, at the time that he received it that this brass was stolen. Compare Brooks v. State, 21 Ga. App. 661 (94 S. E. 810), and cases cited. The trial judge erred therefore in overruling the motion for a new trial upon the general grounds. This question being controlling in the ease, the other special grounds of the motion need'not be considered, and they are not passed upon.

Judgment reversed.

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


text:
    9517.
    Jackson v. The State.
    Decided April 2, 1918.
    Accusation of larceny; from city court of Camilla—Judge Bush. July 3, 1917.
    Robert Jackson was convicted under an accusation which charged him with having stolen from E. L.' Whitworth about 900 pounds of short cottonseed. ;E. L. Whitworth testified, that on being informed that some one had gone into his cotton-house he went to it and saw where a wagon had been driven up there and then driven off again, and that about five or six hundred pounds of seed were missing. “I then got in my car and traced this wagon track, and I followed it to Mr. Walter Acree’s place in the outskirts of Camilla. I left the track thpre. This track came on to town, but it came in a roundabout way. It ■went-several miles out of the way to, get to Camilla, and took all of the backwoods roads possible. It did not go directly by houses, but would avoid them as far as possible. The track made by this wagon was a narrow one,—that is, it was a standard-gauge wagon; the tires were smaller than those of a regular size two-horse wagon and larger than those of a one-horse wagon. . When I got to Walter Aeree’s place T left the track and drove directly to the oil-mill and questioned Mr. Nix. I then went to Robert Jackson’s house and drove up and asked his wife where he was, and she told me that he was in the field. I then went on over to where he was and I asked him if he., had carried some seed to town that morning, and he told me he had, and I said, ‘Where did you get them from?’ He said, ‘Out of my brother’s corn-crib;’ and I s.aid, Hiet’s go to your brother’s corn-crib ánd see about it,’ and we went up there and looked. There was no seed anywhere around his brother’s corn-crib, and I asked him to show me a seed, and said I would give him a dime a seed.- ,He was never successful in'pointing out to me a single seed; no seed were in the house. It had corn in it, but no seed in it or on the ground. When I got to Bobert’s house I found that he had a narrow-tired wag;on, the same as the one that made the track by my cotton-house. There are other people in that locality who own the same kind of wagon; in fact they are quite common.”
   Broyles, P. J.

The conviction was not authorized by the evidence, and the' court erred in refusing to grant a new trial.

Judgment reversed.

Bloodworth and Harwell, JJ.,- concur.

S. A. Nix testified: “On the day that Mr. E. L. Whitworth came to the oil-mill inquiring for some.seed I bought a small load of cottonseed from Eobert Jackson. There were five or six hundred pounds in the load. Mr. Whitworth came asking about the seed about 8 o’clock a. m., and I had bought these seed about one hour before that. I don’t remember whether I had bought other seed from other parties that day or not. At that time there were several other cottonseed buyers buying seed at Camilla.” There was no additional evidence. -

Charles Walt Jr., for plaintiff in error.


text:
    9528.
    BLOODWORTH v. THE STATE.
    1.' An instruction by the court, that "peach brandy, under the law, is' an intoxicating liquor,” was complained of as not authorized by evi-. dence. There was no merit in this ground of the motion for a new-trial.
    2. The State having introduced direct evidence—that is,- a confession—as . well as circumstantial evidence of the defendant’s guilt, the court did not err, in the absence of a tim'ely written request, in failing to charge the jury the law of circumstantial evidence as embodied in the Penal Code, .§ 1010;- Horton v. State, 21 Ga. App. 120 (93 S. B. 1012, 1013), and eases therein cited.
    3. The alleged newly discovered evidence was cumulative of that introduced by the defendant on the trial, and therefore affords no reason for .the grant of a new trial.
    4. The evidence was sufficient to authorize the conviction of the defendant, the verdict was approved by the trial judge, no error of law appears, and this court will not interfere. Compare Justice v. State, 7 Ga. App. 43 (65 S. E. 1070); White v. State, 18 Ga. App. 214 (89 S. E. 175). ' '
    Decided April 2, 1918.
    Indictment for manufacturing intoxicating liquor; from Pike superior court—Judge Searcy. January 16, 1918.

      II. O. Farr, H. .A. Rider, for plaintiff in error.

      F. M. Owen, solicitor-general, contra.
   Harwell, J.

The defendant was indicted for manufacturing intoxicating liquors. The evidence for the State showed- that in ah out-housé in the yard where defendant lived was found some peach “mobby” and a box with a pipe' running through it, a lard can that had been recently used, and a trough in connection with the pipe. The pipe was covered with sand, which was wet, as if he had poured water on it. The peach “mobby” was hot, as if it had just been taken from the _fire. The chief of police testified that he would call the outfit a liquor apparatus. The testimony further showed that the pipe had the smell of liquor about it. The officers who made the arrest testified that the peaches were canned peaches, and that they» found at or near the place 15.0 empty peach cans. It was further testified that the defendant said: “He was not selling whisky but was making it for his own use. We were discussing the outfit I found the night before. Something was said about making liquor at his house. Lee said he was making a little for his own use, just to drink.” The defendant denied that he, was making liquor, and said that the peaches were some sour canned peaches which had been given to'him, and that he was heating them for the purpose of slopping his hogs.

The headnotes do not require elaboration.

Judgment affirmed.

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


author: Bbotles, P. J.

text:
    9529.
    Lane v. The State.
    Decided April 2, 1918.
    Accusation of sale of intoxicating liquór; from city court of Nashville—Judge Christian. January 14, 1918.

      J. W. Powell, for plaintiff in error.

      H. L. Jackson, solicitor, contra.
   Bbotles, P. J.

1. The alleged newly discovered evidence was purely cumulative, and the court did not err in overruling the grounds .of the motion for a new trial based thereon.

2. There was some evidence which authorized the defendant’s conviction,, and, the verdict having been approved by the trial judge, this court is without authority to interfere.

Judgment affirmed.

Bloodworth and Sarwell, JJ., concur.


text:
    9530.
    Shaw v. The State.
    Decided April 2, 1918.
    Accusation of misdeameanor; 'from city court of Savannah—-. Judge Rourke. December 22, 1917.

      Robert L. Golding, for plaintiff in error.

      Walter C. Harbridge, solicitor-general, contra.
   Bloodworth, J.

1. The entire brief of the attorney for the plaintiff in error- is in the following sentence: “The recitals of fact and statement of error in the motion and amended motion for a new trial clearly state the issues in the case and same is respectfully submitted to the court.” This is not an argument. It has been repeatedly held by this court and the Supreme Court of the State that assignments of error not argued in the brief of counsel for plaintiff in error will be treated as abandoned.

2. The evidence demanded the verdict.

Judgment affirmed.

Broyles, P. J., and Barwell, J., eoneur.


text:
    9540.
    Bynum v. The State.
    Decided April 2, 1918.
    Accusation of misdemeanor; from city court of Madison—Judge Anderson. February 8, 1918.;

      Williford & Lambert, for plaintiff in error.

      A. G. Foster, solicitor, contra.
   Bloodworth, J.

There is no merit in the only special ground of the motion for a new trial. The evidence is sufficient to support the verdict, and the judgment is

Affirmed.

Broyles, P. J., and Barwell, •/., concur.


text:
    9545.
    Trentham v. The State.
   Harwell, J.

1. The defendant being charged with the sale of whisky and also with having it in his possession, there was no error in admitting testimony that apparatus for distilling whisky was found on his ’ premises. This was a circumstance which could properly be considered by the jury. Compare Craig v. State, 9 Ga. App. 233 (70 S. E. 974) ; Cole v. State, 120 Ga. 485 (48 S. E. 156).

2. As to the special ground of-the motion for a new -trial based on alleged newly discovered - evidence, the State made a counter-showing, from which it appears that the defendant knew of some of this alleged newly discovered evidence/ and had some of the persons who made affidavits to it subpcenaed as witnesses. It further appears, from the circumstances, that the defendant necessarily had knowledge of some of this .alleged newly discovered evidence. All of it is cumulative and impeaching in its character. This ground of the motion therefore affords no reason for the grant of a new trial. Champion v. State, 21 Ga. App. 656 (94 S. E. 828); Collins V. State, 21 Ga. App. 128 (94 S. E. 77).

Decided April 2, 1918.

Accusation of misdemeanor; from city court of Polk county— Judge John K. Davis. January 24, 1918.

Gñffith & Matthews, Irwin & Tison, W. W. Mundy, for plaintiff in error. J. A. Wright, solicitor, contra.

3. The contention that there was no affidavit upon which to base the accusation and that it was therefore void and the trial invalid, not being made in the trial court, but only in the brief of counsel for the plaintiff in error, will not be considered by this court.

4. The defendant was charged with the sale of intoxicating liquor, and also, in another count, with having it in his possession, and was convicted on both counts. There was ample evidence to sustain the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., ooneur.


author: Broyt.es, P. J.

text:
    9551.
    Holland v. The State.
    Decided April 2, 1918.
    Conviction of manslaughter; from Laurens, superior court— Judge Kent. December 8, 1917.

      S. P. New, for plaintiff in error.

      E. L. Stephens, solicitor-general, contra.
   Broyt.es, P. J.

1. In charging the jury upon' the law of manslaughter the judge did not err in failing to instruct them as to the punishment ' prescribed by the statute for that offense. Meeks v. State, 57 Ga. 329.

2. Under the facts of the ease the law of involuntary manslaughter was not involved, and the judge did not err in failing to charge it.

3. It does not appear that the court abused its discretion in allowing the State to introduce, over the objection of the defendant, additional testimony, after the State and the defendant had closed, although such testimony may .not have been strictly in rebuttal.

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

Judgment affirmed.

Bloodworth and ^Harwell, JJ., concur.


text:
    9583.
    NIX et al. v. THE STATE.
    Under the facts of this case the judge did not err in refusing the change of venue.
    Decided April 2, 1918.
    Application for change of venue; from Muscogee, superior court —Judge Howard. February 14, 1918.
    ■ George 0. Palmer, for plaintiff in error.

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

This was a petition by Bartow Nix and Albert Nix for a change of venue, under the statutory provisions as amended by the act of 1911 (Ga. L. 1911, p. 74; Park’s Penal Code, § 964). It is there provided that “if the evidence submitted shall reasonably show that there is probability or danger of lynching, or other violence, then it shall be mandatory on said judge to change the venue to such county in the State as in his judgment will avoid such lynching.” Affidavits of twelve persons were introduced to show that if the petitioners, who had been indicted for murder, were tried in Muscogee county, there was danger of mob violence, and that ip that county the feeling against the accused was bitter and inflamed. Among these was an affidavit of the sheriff, and, three affidavits of relatives by blood or marriage, of the accused. The State made a counter-showing, introducing the affidavits and the sworn testimony of twenty-three citizens of Muscogee county, all of them testifying substantially that they had heard the case discussed by people generally and had heard no threat of mob violence, and that the trial could be had in Muscogee county without any danger or probability of mob violence or lynching, and the accused could obtain a fair and impartial trial. These witnesses.included the mayor of Columbus, the chairman of the board of county commissioners, and the chairman of the police commission of Columbus, the chief of police of Columbus, the chief of county police, the clerk of the superior court, the jailer, and other officers. There were affidavits to the same effect by Mrs. Alexander, wife of one of the persons killed, and by J. B. Everidge, brother of one of the persons killed.

- In petitions of this character, the presiding judge must primarily pass upon the question of fact as to whether it is reasonably shown that, there is danger of mob violence; and- this court will not reverse his finding upon conflicting evidence, unless it is manifestly erroneous. Wilburn v. State, 140 Ga. 138 (78 S. E. 819); Graham v. State, 141 Ga. 818 (82 S. E. 282). In the. instant case there was ample evidence to sustain the order refusing the petition.

Judgment affirmed.

Broyles, P. J., and Bloodwdrth, J.¡ concur,


author: Jenkins, J.

text:
    9060.
    Savannah Guano Company v. Abell.
    Decided April 9, 1918.
    Mortgage foreclosure; from city court of Nashville—Judge Christian. June 11, 1917.

      W. D. Buie, J. B. Murrow, for plaintiff.

      Hendriclcs, Mills & Hendriclcs, for defendant.
   Jenkins, J.

1. Since the exhibits attached to tile motion for a new trial in this case are specifically referred to therein as annexed, they thus became a part of the record; and the motion to dismiss the writ of error, on the ground that the exhibits attached to the motion for a new trial are “nowhere identified or allowed by the trial court as a part of the motion for new trial or as part of the record in the case,” is therefore overruled. Patterson v. Collier, 77 Ga. 292 (3 S. E. 119); Central of Georgia Ry. Co. v. O’Kelley, 16 Ca. App. 594 (85 S. E. 938).

2. Diligence is required of parties in the preparation of causes, and courts are not inclined to disturb verdicts occasioned by negligence; nor will the court relieve a party from the consequences of mere ignorance, inadvertence, or neglect, by granting a new trial. Denmond v. Hillyer, 129 Ga. 698 (59 S. E. 806); Dacy v. State, 17 Ga. 439; Marshall v. Means, 12 Ga. 61 (56 Am. D. 444); Rolfe v. Rolfe, 10 Ga. 143.

3. There was sufficient evidence to authorize the verdict, which has the approval of the trial judge, and. no reason appears why the verdict should be set aside.

Judgment affirmed.

Wade, C. J., and Luhe, J., concpr. .


author: Luke, J.

text:
    9089.
    Hester v. McGinnis.
    Decided April 9, 1918.
   Luke, J.

1. A written waiver of homestead and exemption is good between the parties, though not shown by an execution issued upon a .suit based on the contract wherein the waiver was made, and is provable aliunde,, whether the lien of '-’-'a judgment be general or special. Flemister v. Phillips, 65 Ga. 676; Broach v. Powell, 79 Ga. 79, 81 (3 S. E. 763). See also Davis v. Taylor, 103 Ga. 366, 375 (30 S. E. 50).

2. Upon the petition for certiorari and the answer thereto the court did not err in overruling the certiorari.

Judgment affirmed.

Wade, 6. J., and Jenhins, J., concur.

Certiorari; from Gwinnett superior court—Judge Cobb. July 5, 1917. ■

D. K. Johnston, for plaintiff in error. Ó. A. Nix, contra.


author: Wade, C. J.

text:
    9094.
    CITIZENS & SOUTHERN BANK v. ARMSTRONG.
    1. The statutory provision to the effect that when a debtor makes a payment to a creditor holding' several demands against him, and fails to direct how it shall be applied, the creditor may at his election appropriate it to any of them, relates to voluntary payments' only.. Where funds are distributed in judicial proceedings, “the law will direct the application in such manner as is reasonable and equitable, both as to parties and' third persons.” Civil Codo (1910), § 4816.
    2. The court did not err in holding that a dividend paid to the plaintiff in fi. fa. on several demands against the Irish-American Bank, including , the execution against the bank as principal and, Armstrong as’ surety, should be applied ratably to all of these demands (and not exclusively upon the other and unsecured demands held by the creditor, at the creditor’s sole option or selection), notwithstanding no election had been made by the principal debtor, and although a surety would not ordinarily be empowered to direct the application of a voluntary payment made to such creditor by his principal or another. N
    Decided April 9, 1918.
    Affidavit of illegality of execution; from Richmond superior court*—Judge H. C. Hammond. June 23, 1917.

      Wright & Wright, for plaintiff in error.

      P. G. O’ Gorman, Pierce Bro thers, contra.
   Wade, C. J.

This case giróse on an affidavit of illegality, in which it was alleged that a certain execution issued from the superior court of Richmond county “in favor of The Citizens & Southern Bank against the Irish-American Bank, maker-, and Patrick Armstrong, as surety,” and levied by the, sheriff upon certain described property of Armstrong, was proceeding illegally for the reason that Armstrong had paid the balance in full due on the execution. The bill of exceptions sets out the issues to be_ determined as follows: “Plaintiff, Patrick Armstrong,- set up in his affidavit of illegality that The Citizens & Southern Bank had received from the receiver of the insolvent estate of the Irish-Ainerican Bank, the principal debtor, a dividend of 8 per cent, upon the debt on which he was surety, amounting to $3,164.82, which should have been credited on the said debt upon which he was surety, but which the said The Citizens & Southern Bank undertook to'credit, and did credit, upon another debt due by the said Irish-American Bank to said The Citizens & Southern Bank, which was not secured; that if said The Citizens & Southern Bank had so 'credited the said sum upon the debt upon which said Armstrong was surety, there would remain nothing due after said payment by the surety of the $28,268.37 above mentioned. The Citizens & Southern Bank in its answer to said affidavit of illegality and in. open court admitted that it had received from the receiver of the insolvent estate of the Irifeh-American Bank, the principal debtor, eight per cent, dividend upon the total indebtedness due, by said Irish-American Bank to the said The Citizens & Southern Bank on three separate debts, which, in the aggregate, amounted to $84,-855.25, one item’ of which indebtedness was the $43,955.79, constituting the debt upon which the said Patrick Armstrong was surety; and that the said The Citizens & Southern Bank credited the entire amount of said dividend to one’ of said items of indebtedness other than the debt secured by Patrick Armstrong. It further admitted in -its said answer that 8 per cent, of the debt on which Patrick Armstrong was indorser would amount to -tlnj -sum of $3,164.82, and that if the said The Citizens & Southern Bank did not have the right to credit said sum as it did, but should have credited it as contended for by Patrick Armstrong, then the said Patrick Armstrong is not'indebted to it.in any sum whatsoever, but that the. execution and judgment in question is paid and the debt fully satisfied, principal, ■ interest, attorney’s fees, and the court costs. Plaintiff in fi. fa. in its answer to the affidavit of illegality showed that the correct amount due it by the Irish-American Bank was $84,855.25; separate judgments therefor being as follows: (1) Judgments, on not? (secured partially by collaterals), $29,265.50; (2) judgments balance on overdraft (unsecured), $11,633.86; (3) balance on note indorsed by P. Armstrong, $43,955.79.

“The Irish-American Bank became insolvent, and its affairs were placed in the hands of a receiver, at the suit of the State of Georgia. In the administration of the estate the receiver declared a dividend of 8 per cent, to the general creditors of the insolvent bank, and among them The Citizens & Southern Bank received its dividend of 8 per cent, on the aggregate claim of $84,855.25, or $6,786.48. The Citizens & Southern Bank applied this as a credit on its unsecured claim represented by .the overdraft. Patrick Armstrong, in his affidavit of illegality, contends that this 8 per cent, dividend received by The Citizens & Southern Bank should have been credited ratably upon the three separate items of indebtedness above mentioned,—that is to say, $3,164.89 of the sum paid over by the receiver to the bank should be applied to the payment pro tanto of the particular judgment on which he is surety, thereby reducing by that sum his obligation as surety. The Citizens & Southern Bank denied that there is'any rule of law or equity in the State requiring such an appropriation of payment, and contended it had the right under the law to apply the payment to the claim represented by the overdraft. The said cause was heard upon .the affidavit of illegality and the answer and the admission in open court as above stated, by his honor Judge Hammond, without a jury, counsel in open court agreeing thereto. At the conclusion of the argument his honor rendered a judgment sustaining the affidavit of illegality, as follows, to wit: The foregoing affidavit of illegality coming on to be heard before the undersigned judge without a-jury,-the jury having been waived, after hearing the .evidence and argument of counsel the same is hereby sustained in open court. 23rd day of June, 1917. Henry C. Hammond, J. S. C. A. C.

“To this judgment of the court defendant excepted and now excepts and assigns error thereon, and says that the court erred in sustaining the said affidavit of illegality and in not holding that The Citizens & Southern Bank had the right to apply said payment by the receiver of the Irish-American Bank to the unsecured indebtedhess of the said insolvent bank to The Citizens & Southern Bank represented by overdraft, becarise: (1) It was an older debt. (3) It was an unsecured debt. (3) The creditor, in the absence of instruction to the contrary, has the right to elect to which debt the payment shall be appropriated. (4) If the creditor did not have this right, the court should direct the application in such manner as is reasonable and equitable, both as to parties and third persons, observing the general rule that such application should be made to the older and to the unsecured or least secured debt. (5) A surety or guarantor on one of the notes or debts has no right in law or in equity whereby he may compel the creditor to apply-all or any part of such payment to the debt on which he is surety; on the contrary, his obligation to the creditor as surety is to pay the entire debt; and to apply any part of this 8 per cent, dividend to the Armstrong debt would be to release him pro tanto from the obligation of his contract as surety and to deprive the payee to that extent of the security he took when lie extended the credit.”

When this case was before the Supremo Court for the determination of another question (Citizens & Southern Bank v. Alexander, 147 Ga. 74 (92 S. E. 868), it' was held by that court: “Where a creditor of an insolvent bank holds collateral security for a portion of the debt, and the receiver of the bank realizes from its assets an amount of cash to be applied on its debt, the creditor is not entitled to a dividend upon the entire indebtedness due, as though he had no collateral. Such secured creditor must first apply the amount realized from the collateral to reduce the amount of indebtedness, and is entitled, like other creditors, to a dividend upon the unpaid balance.” The point now at issue was not involved in the previous adjudication.

Section 4316 of the Civil Code is as follows: “When- a payment 'is made by a debtor to a creditor holding several demands against him, the debtor has the right to direct the claim to which it shall be appropriated. If he fails to do so, the creditor has the right to appropriate at his election. If neither exercises this privilege, the law will direct the application in such manner as is reasonable and equitable, both as to parties and third persons. As a general rule, the oldest lien and the oldest item in an account will be first paid, the presumption of law being that such would be the fair intention of the parties.” It is conceded in the brief of counsel for the plaintiff in error that “there is nothing in the record to show that the unsecured claim to which the payment was applied was older than the claim upon which the defendant in error was endorser.” It is broadly held in Kyle v. Chattahoochee Nat. Bank, 96 Ga. 693 (24 S. E. 149), that the code section quoted above (Code of 1882, § 3722) “is applicable only in cases of voluntary payments by the debtor.” In the decision the court said: “The rule stated in the Code . . , supra, has no application to the distribution of funds resulting from judicial proceedings. It provides for the appropriation of money voluntarily paid. In -such a case, the debtor may direct how it shall be applied. If he fails so to do, the creditor may elect how he will appropriate it. If no direction be given by the one or no election made by the other, the law will 'appropriate it in such manner as is reasonable and equitable, both as to parties and third persons. This provision deals with the appropriation of funds as between the debtor and creditor alone.” The statute itself provides 'that if rneither the debtor nor the creditor exercises the privilege of appropriating payments to one or more of several demands held by the creditor, the law will direct the application in such a manner as is equitable and reasonable, “both as to parties and third persons.” In Hargroves v. Cooke, 15 Ca. 321, 322, (7), the court said: “If neither debtor nor creditor apply the payment, the,duty of doing so devolves upon the court, who will make such application as is reasonable and equitable.” The court further said (p. 329) : “In all cases, if the parties, themselves, have omitted to make any specific appropriation of payments, the law will appropriate them according to the justice and equity of the case, for the benefit of both parties.”

In.this ease the payment applied by the plaintiff in execution to unsecured demands held by it against the Irish-American’ Bank was not a voluntary payment made by the principal debtor, or by any other person for it, but was made to the creditor as a dividend upon the aggregate sum of all demands held by it against the Irish-American Bank, including the particular demand secured by the indorsement of Armstrong on which it sued to judgment. In determining the precise amount the receiver should pay to the Citizens & Southern Bank in compliance with the order of the court fixing the' amount of such dividend at 8 per cent., it was ^necessary to include the demand which was secured by the indorsement of Armstrong, as well as the remaining claims in favor of the Citizens & Southern Bank' which went to make the total sum of its claim against the insolvent bank. The money was not paid by the- receiver in accordance with any agreement or direction on the part of the principal debtor or the surety, but was paid over to the • plaintiff in fi. fa. in pursuance of the order -of the court, without any agreement by the principal debtor, to which the surety assented, that it should be appliec to one or more of the unsecured demands. It would be manifestly inequitable to allow the application of that part of the sum paid by the receiver to the creditor as a dividend on the secured claim to be applied to any other claim whatsoever, but, regardless of this, under the plain and precise ruling in the Kyle ease, supra, as well as under that in the Hargroves case, supra, the court was authorized to make a reasonable and equitable application which would fairly protect the interests of all parties and third persons.

It is insisted in the brief of counsel for the plaintiff in error that the “third persons” referred to in the Hargroves case and contemplated by section 4316 of the Civil Code, supra, “are creditors whose rights and liabilities arise outside of the debt under discussion, and not sureties or guarantors of that debt.” Even conceding the correctness of this position, the statute expressly authorizes the application of payments by the court in the circumstances under review in such manner as may be equitable “both as to parties and third persons;” and at all events Armstrong was a party in fact as well as in name in this case,' in whose behalf the court might direct the application of payments in such a manner as to protect his equitable rights.

It is likewise argued that it is too late for either party to insist on the right to appropriate payments, at the time of trial, but no appropriation of any voluntary payment is sought to be made by the surety in this case, the affidavit of illegality being interposed by him to compel the ratable application of a payment made by virtue of judicial proceedings. The fund in question being paid over under order of the court as a dividend upon various demands held by the plaintiff in fi. fa., including the execution levied, and the application of the amount so paid having been made solely at the option of the plaintiff in fi. fa., it is apparent that the surety would not necessarily have been apprised of the fact that the proportion ratably applicable to the execution against him had not been so applied until the, levy of the execution, nor would he have had an opportunity to object to the application made, except by affidavit of illegality interposed when notice of 'the levy for the entire amount of the fi. fa., without allowing the credit claimed thereon, was brought to his attention. '■

We think, therefore, that the trial judge did not err in sustaining the affidavit of illegality. 7

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9098.
    Hancock v. Kennedy.
    Decided April 9, 1918.
    ítule for contempt; .from Wilcox superior court—Judge Crum. June 18, 1917.

      M. B. Gannon, Bldridge Outls, for plaintiff in error.

      J. T. Hill, contra.
   Jenkins, J.

1. Proceedings for contempt are of two classes, punitive and remedial. A proceeding of the former class is intended to punish the offender for a past act of omission or commission which has disturbed the regular proceedings of the court, interfered with its proper func-' tioning, resisted its authority, or reflected contempt upon it, and the authorized penalty in such a case is that prescribed by section 4849 (5) of the Civil Code of 1910; the latter or remedial proceeding is instituted to preserve and enforce the rights of private parties, and may be resorted to as a means of compelling obedience to such court orders or duties as the offenders may wilfully or fraudulently fail or refuse to perform; and in such cases of continuing contempt it is within the power of competent courts to imprison the refractory party until he shall have obeyed the precept. Cobb v. Black, 34 Ga. 162, 166 (2); Ryan v. Kingsbery, 89 Ga. 228 (4) (15 S. E. 302); Drakeford v. Adams, 98 Ga. 722, 724 (25 S. E. 833); Tindall v. Nisbet, 113 Ga. 1114 (4, b), 1115 (39 S. E 450, 55 L. R. A. 225).

2. Under both the pleadings and the evidence in this case, the proceeding was punitive in its nature, and sought to charge the respondent clerk with past and completed acts of omission and commission in the performance of his official duties; the pleadings negative any charge, and the proof any act, of a continuing breach of official duty, such as it lay within the power of respondent to rectify. The judgment as entered by the court was therefore illegal.

Judgment ■reversed.

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


text:
    9109.
    ARMOUR FERTILIZER WORKS v. DWIGHT.
    1. A plea of payment which fails to allege with reasonable certainty when, • how, and to whom the payment was made, and which fails to disclose - any valid reason why such lack of certainty can not be met, is sub- . ject to be stricken upon special demurrer duly filed pointing out such defects (Wortham v. Sinclair, 98 Qa. 173, 25 S. E. 414; Kahrs v. Kahrs, 115 Ga. 288, 41 S. E. 649; Atlantic Railroad Co. v. Hart Lumber Go., 2 Qa. App. 88, 58 S. E. 316; Groves v. Sexton, 5 Qa. App. 160, 62 S. E. 731; Prince v. Cochran, 10 Qa. App. 495, 73 8. E. 693) ; but, no such objection being duly made in this case, the verdict for the defendant can not be set aside as being contrary- to evidence, his testimony showing in distinct terms that the levied fi. fat was fully paid off, and such payment accepted by the plaintiff. While evidence of the manner of payment, identifying the specific checks claimed to have thus been turned over in settlement, would add probative value to the proof relied on to establish the plea, the act of payment is' the essential fact to be shown. Fletcher V. Young, 10 Ga. App, 183 (3) (73 S. E. 38). “This court, by the constitutional amendment creating it, is limited in jurisdiction to the correction of errors of law alone, and therefore ihas no power to grant a new trial on the ground that the verdict is strongly contrary to the weight of •the evidence, if there is any evidence at all to support it.” Edge v. Thomas, 9 Ga. App. 559 (71 S. E. 875). The grounds of the original motion for a new trial, and the fourth ground of the amendment to the motion, therefore, do not afford ground for a reversal.
    2. The objection made to a consideration of the first and second grounds of the amendment to the motion for a new trial is meritorious, since a ground complaining of the admission of documentary evidence will not be considered, unless the evidence objected to is sej; forth, either literally or in substance, in the motion itself, or attached thereto as an exhibit. Fletcher v. Oollins, 111 Ga. 253 (2) (36 S. E. 646); Bulloch v. Cordele Sash Ac. Go., 114 Ga. 627 (3) (40 S. E. 734); Maxwell v. Bucher, 127 Ga. Ill; Cordele Sash, Ac.-Go. V. Wilson Lumber Go., 129 Ga. 290 (58 S. E. 860) ; Roberts v. Devane, 129 Ga. 604 (2) (59 S. E. 289); Goivart v. Aycoch, 139 Ga. 432.(77 S. E. 382); Louisville A Nashville Railroad Go. v. Hughes, 143 Ga. 206 (8) (84 S. E. 451); Sasser V. Pierce, 9 Ga. App. 27 (2) (70 S. E. 197); Perry v. Independent Daughters of Bethel, 11 Ga. App. 498 (75 S. E. 819); Denton v. Hannah, 12 Ga. App. 495 (7) (77 S. B. 672); Frajihlin v. Fields, 13 Ga. App. 463 (79 S. E. 366); Smith v. Hilton A Dodge Lumber Go., 13 Ga. App. 785 (80 S. Ei 25) ; First National Banh v. Borne Mercantile Go., 14 Ga. App. 99 (80 S. E. 210). Neither a ground of a motion for a new trial assigning error upon the admission of evidence, nor a similar assignment of error in a bill of exceptions, can be considered, unless the evidence is set forth in such manner that the question can be' decided without reference to other parts of the record. Hides v. Mather, 107 Ga. 77 (32 S. E. 901); Thompson v. American Mortgage Co., 107 Ga. 832 (2) (33 S. E. 689); Georgia Nor. By. Go. v. Hutchins, 119 Ga. 504 (5) ' (46 S. E. 659); Hides v. Webb, 127 Ga. 170 (5) (56 S. E. 307).
    3. Ground 3 of the amendment to the motion for a new trial, which assigns error upon the admission of certain evidence, upon the ground that it was immaterial and irrelevant, is without merit. In view of testimony "previously introduced by the plaintiff, this evidence became relevant as tending to throw light upon a material issue in controversy; but even if immaterial, its admission is not shown to have been harmful. Unless a reasonable likelihood of a prejudicial effect appears, the admission of evidence merely immaterial will not authorize the setting aside of a verdict and the grant of a new trial. Travelers Insurance Co. v. Thornton, 119 Ga. 455 ( 8)" ’(46 S. E. 678); Gilleland v. Louisville A Nashville B. Co., 119 Ga. 789 (2) (47 S. E. 336).
    4. The motion for a new trial complains of the following excerpts from the charge of the court: “He [the defendant] alleges and contends that lle made two payments to the attorneys of record in the case, and that upon procuring statement from these attorneys of record of the balance due, lie then and there paid that balance, and that he thereby discharged in full the debt represented by this execution and judgment.” Error is assigned thereon because there is no allegation in the affidavit of illegality, nor any evidence, that a statement of the balance due was given the defendant, such as would authorize the charge.

      (a) The defendant objected to a consideration of this assignment, for the reason that the entire charge is not specified and sent up as a material part of the record. This objection is without merit. The rule is that where the entire charge of the court is not sent up in the bill of exceptions or in the record, and exception is taken to a portion of it which, without qualification, is error, and it does not appear from the Certificate of the judge who tried -the case that it' was qualified by another part of the charge, this court will presume that there was no qualification. Central Railroad v. Senfi, 73 Qa. 705.
    (5) This excerpt from the charge is not, however; unauthorized by the evidence, and the verdict can not for that reason be set aside. The defendant testified as follows: “He [referring to the attorney of plaintiff to whom it is alleged the payment was made] told me he woüld be in Butler and would bring the amount with him, and at the Sealy House in Butler I gave him check on the Farmers & Merchants Bank for $101.30 as final and full payment. He told me it was the balance, and I gave him check to cover.”
    5. The instruction complained of in ground 6, and the requested instruction set out in ground 7, which, it is complained, the court refused to give, are in substantial accord, and neither exception will justify setting the verdict aside.
    Decided April 9, 1918.
    Illegality of execution; from city court of Oglethorpe—Judge Greer. June 20, 1917.

      O. T. Gower, John B. Guerry, Jere M. Moore, J. J. Bull & Son, for plaintiff. Jule Felton, for defendant.
   Jenkins, J.

The requested instruction referred to in the

fifth headnote was as follows:' “To constitute a legal, binding receipt for money given by one person to another it must be signed. If a receipt is issued in blank, it is not of itself of any effect, nor does it show the payment of any money; and unless the receipt is signed by the persqns purporting to haye issued it, then it is not a receipt and cannot be considered as a receipt. How this is you must determine from the evidence. But if you believe that a paper brought into court and introduced in evidence as a receipt was not signed by the person drawing the same, and not delivered as a receipt, claiming the benefit from it, then you should not consider this in evidence, provided it together with all of the other evidence shows that- the purported paper claimed to he a receipt was without value and not delivered. How this is you must determine from the evidence.” The excerpt from the charge excepted to, and to which reference, is also made in the last headnote, is as follows: “Now I charge you that ordinarily an unsigned receipt is of no value. It indicates nothing; it amounts to nothing, unless it should be shown by other evidence that it has a consideration. If the evidence should indicate to your minds satisfactorily that the receipt was good, although unsigned, if it really represents money paid, it would be just as binding as if it were signed.”

It was not disputed that the paper introduced for the purpose of showing payment had not been signed. The issue was whether the unsigned instrument had been delivered to defendant upon the acceptance by plaintiff of certain checks tendered in partial payment, or whether, upon the refusal of the plaintiff to accept the checks so tendered, the defendant unlawfully obtained possession of the unsigned paper of acknowledgment, without the consent of plaintiff’s agent. There was. evidence in support of each of these contentions, the defendant testifying, “He gave me this paper at the time.” The entire assignment of error as to the excerpt from the charge as given is as follows: “Because the paper offered in evidence was hot a receipt, it could only he used as a memorandum; and, not being a receipt signed, it was error for the court to give this in charge and refer to it as a receipt.” A party cannot, however, obtain a reversal for an error which he has invited. Partee v. State, 19 Ga. App. 752 (3) (92 S. E. 306). And as we interpret the request to charge, the charge as given is in this respect in substantial accord with it. The court was asked to instruct the jury to the effect that the unsigned paper brought into court as a receipt could not of itself be taken as such, and that it could be so considered only provided the evidence showed that it was delivered for value. It is thus unnecessary to discuss whether such a written but unsigned acknowledgment could ever under any circumstances be given the dignity and probative value of a signed receipt, such as would be sufficient to shift the burden- of proof under the provisions of section 5795 of the Civil Code (1910).. Since one of the issues made by the evidence was whether or not the unsigned writing had been delivered, we think it would have been well, even without a request, for the trial judge to have specially charged the jury upon that subject; but we are unable to say whether or not his charge in fact' covered this point, since there is no exception alleging his failure so to do; and the exception to the refusal to give a requested instruction containing only a reference to this subject cannot be taken as setting up entire failure in this respect, where the exception does not so state, and the charge as a whole is not before us.

Judgment affirmed..

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


text:
    9119.
    Chance, administrator, v. Simpkins.
    Decided April 9, 1918.
    Money rule; from Richmond superior court—Judge H. C. Hammond. May 30,1917.

      Paul T. Chance, William H. Fleming, for plaintiff in error.

      George T. Jaclcson, contra.
   Jenkins, J.

Where funds have been paid into court under an order requiring their deposit with its clerk to await their final distribution, the funds while so held are in custodia legis, and therefore not subject to the process of garnishment. 20 Cyc. 1022 (1,2). The fact that the parties interested may have consented to the order of court will not alter the rule; nor will the fact that prior to the service of the process of garnishment the right to the funds had been fixed and determined by another judgment providing for their distribution. Cowart v. Caldwell Co., 134 Ga. 544, 548 (68 S. E. 500, 30 L. R. A. (N. S.) 720); Field v. Jones, 11 Ga. 413. In such a case the status of the clerk, as a bare custodian for the court, is analogous to that of a receiver, who is not subject to the process of garnishment (Civil Code of 1910, § 5485), rather than to the status of a sheriff, who, as a general officer accountable to all, has been held to be subject to the process. Bird v. Harris, 63 Ga. 434, 435.

Judgment affirmed.

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


text:
    9260.
    MALLOY v. McNEEL MARBLE COMPANY.
    The sole issue for determination being whether a mausoleum provided by the executors as a “suitable protection for the grave of the deceased” was in fact “suitable,” considering the cost thereof and the size of the solvent estate, and the trial judge, who passed upon this question without the intervention of a jury, having' determined the issue of fact, this court can not review his finding, since the amount contracted for was not itself so great as to compel a contrary conclusion.
    Decided April 9, 1918.

      Complaint; from city court of Quitman—Judge Long. September 29, 1917.

      Bennel & Harrell, for plaintiff in error.

      D. W. Blair, M. Baum, contra.
   Wade, C. J.

According to the record in this case, Z. ,W. Oglesby died leaving an estate of $300,000> against which it does not appear there were any outstanding demands. The executors , named in his will conferred with the seven legatees thereunder, the children of the' deceased, and obtained the consent of six of them to the purchase and erection of a. mausoleum sufficient to hold the remains of several other members of- his family as well as the body' of the deceased. The executors thereupon entered into a contract for the building of.the mausoleum at the price named, but thereafter resigned their trust; and the plaintiff in error was appointed administrator of the estate, and- subsequently to his appointment the mausoleum was completed" in accordance with the contract. The administrator, with the consent of six of the seven legatees under the. will, páid to .the • defendant in error $1,000 for each of them, or a total of $6,000 on the agreed contract price. It appears that the remaining heir was laboring under some disability which made it impossible for the adminis"trator to obtain her consent; and her trustee, doubting his authority to do so, declined to consent in her behalf. The administrator refusing to pay the balance of $1,000 due under the contract, suit was instituted therefor, and the defense was interposed that the value of the estate of the deceased did not authorize the expenditure of the sum of $7,000 as a protection for his grave or as a monument to him. It appeared on the. trial that prior to his death the deceased had frequently expressed an intention to build a mausoleum for his own body and for other members of his family, and that he had even been negotiating to this end with builders of such structures, shortly before his demise, and had expressed his intention, to build a mausoleum as .expensive as the one contracted for by his executors, though he had not definitely fixed upon-the amount to be so expended. The judge, presiding without the intervention of a jury, rendered a finding and judgment in favor of the plaintiff for the unpaid balance, $1,000, with. interest. There is no material conflict in any of the evidence which must he considered in the determination of this case. As stated by counsel for the plaintiff in error in their briefs of hie in this court, the only question for decision is whether or not the executors of an unencumbered estate which according to the evidence was worth $300,000, and was admitted in the briefs of counsel for both sides to-.be worth $350,000, had authority, under the law, to make a contract for a mausoleum for the deceased costing $7,000.

Since the dawn of recorded time civilized man has persisted in the vain effort to perpetuate the memory of his ephemeral life and puny achievements throughout the ages of the immeasurable future. The colossal statue's of Egypt and Assyria and the innumerable tombs and monuments which lined the Appian Way of imperial Eome bear silent testimony to this all-pervading instinct - of humanity. Except to the ear attuned by .faith to catch the truths suggested by nature and declared by revelation, the eternal question remains unanswered,—“if a man die, shall he live again?” Yet nevertheless, though material proof do establish a future spiritual existence must in the nature of things be impossible, .and man can never demonstrate by the testimony of his senses that the individual soul will survive the shock of separation from its mortal tenement, he would at least extend his life by preserving for future generations some record of his earthly existence, and thus live beyond the grave for a brief additional time, in the minds of the generations to follow. So natural and general is this desire, that the law usually recognizes the propriety of not only ■interring decently the body of the deceased, but of erecting, at -the expense of his legatees, a suitable monument to perpetuate his memory. This idea'has found expression and is crystalized in the statute law of this State, which provides for payment óf “Funeral expenses to correspond with the circumstances of the deceased in life, including the physician’s bill and expense of the last sickness;” and that “If the estate is solvent, the administrator is authorized to provide a suitable protection for the grave of the deceased.” Civil Code (1910), § 4000, subsection 2. As already said, the record in. this' ease suggests that the estate of the deceased-was worth at least $300,000 net, and nothing appears to the contrary in the briefs of counsel for both sides. The mausoleum apparently serves the joint purpose of both grave and monument, and, if considered solely as a grave, might perhaps be in-eluded under the provisions of the statute authorizing “funeral expenses” to correspond to the circumstances of the deceased in life. Regardless of this, however, if we consider the mausoleum merely as a “protection for the grave of ■ the deceased,” it then becomes a question of fact whether or not “the protection” was “suitable,” when the size of the solvent estate is considered. The trial judge, sitting as both court and jury, passed upon this issue of fact and held that $7,000 was not an excessive or unreasonable amount to be expended for such purpose. There was ample evidence to sustain this finding, and this court cannot say as a matter of law that this amount would not be “suitable.” It is unnecessary to enter into any discussion as to the authority of the executors to erect a monument over the grave of the deceased. It is'not disputed that the mausoleum in question was a protection, and a' sufficient protection, for his grave, as well as a monument to his memory, and the only question was whether the amount contracted for was too great,^ and hence not “suitable,” in view of the size of the estate. Since the cost of the mausoleum contracted for was not so great and so utterly disproportionate to the size of the solvent estate as to compel the conclusion that the protection thus afforded the grave of the deceased could not be reasonably classified as “suitable,” the judgment of the lower court must be

Affirmed.

Jenldns and LuTce, JJ.} concur.