author: Jenkins, J.

text:
    9532.
    GILBERT v. COPELAND.
    1. An executory agreement for the sale of goods to be actually delivered at a future day is valid,' though at the time of making the contract the seller has not the goods in his possession, has not contracted to purchase them, and has no expectation of acquiring them otherwise than by producing, manufacturing, or purchasing them at some future time before the day of delivery. Civil Code (1910), § 3222 (7); Forsyth Mfg. Go. v. Gastlen, 112 Ga. 199, 202 (37 S. E. 485, 81 Am. St. R. 28); Columbus Grate Go. v. Evans, 130 Ga. 432 (60 S. E. 1065).
    2. In determining, however, whether a given contract be for the sale of goods, or whether it be for work and labor to be done, the test to be applied is Whether the primary purpose and intent of the agreement is merely to-provide for. the delivery of the articles contracted for, or whether the essential consideration is work and labor to be done at the instance of the'employer and for his use and benefit; that is to adj, is the labor of the producer tó be expended for his employer, or for himself ?
    3. While possession of personal property is presumptive evidence of ownership, the presumption is not conclusive, and any person dealing with "the possessor as the owner will not obtain title to the pioperty as against the true owner,' unless the latter has done something to mislead 'or deceive such purchaser. Harris Loan Oo. v. Elliott <£- Hatch Co., 110 Ga. 303' (3) (34 S. E. 1003).
    4. If the contract here involved be construed as being one for the executory sale of merchandise, an action of trover would not lie against a third .person purchasing-from the vendor; but construing it, as it must be construed, as being merely a contract for work and labor to be performed, the proceeding in trover was not' subject to general demurrer. Cobb v. Johnson, 126 Ga. 618 (55 S. E. 935).
    Decided October 22, 1918.
    Rehearing denied November 4, 1918.
    Trover; from city court of Thomasville—Judge W. H. Hammond. January-3, 1918. ' .
    Gilbert sued Gopeland in trover, alleging- as follows:
    “1. That on the 10th day of January, 1917, plaintiff entered into a contract with the said John Bell, a copy of which said contract is hereto attached, marked Exhibit A, wherein the said John Bell agreed to undertake to raise for and deliver to D. H. Gilbert all of the melop seed grown during the year 1917 on 10 acres of land, -to be selected by -said John Bell, suitable in quantity and condition for-such crop. - ■ ‘
    “2. By the terms of said contract the said plaintiff was to loan, free of charge, for their use, suitable-bags-for delivering the crop, also to furnish the stock seed; and it was further agreed that the said sacks, stock seed, and the -crop produced therefrom were to remain and be the property of the said plaintiff, except such seed as were found on delivery to be impure, through fault of the grower, or as in any other respect in the judgment of the said plaintiff unfor [unfit ?•] for seedman’s use, and that .could not be made fit without an unreasonable amount of recleaning or' handpicking.

      “3. In consideration of the faithful carrying out of the said provisions of the sáid contract on the part of the said John Bell, the plaintiff agreed to pay, for his services and labor in growing and delivering the said seed grown on the said land, at the rate of 10^ per pound for all the seed grown found to be fit and suitable for seedman’s use.
    “4. Plaintiff shows that he has performed his part of the contract in every detail by furnishing to the said John Bell the stock seed and by loaning to him'the bags necessary for delivering the seed grown by said John Bell.'
    “5. That the said John Bell planted the stock seed furnished by plaintiff, on land selected, prepared, and cultivated-by him-during the year 1917, and produced 625 pounds of watermelon seed .suitable to seedmen’s use, described as follows: 625 pounds of watermelon seed in cotton, seamless bags, 8 of the- bags branded with ‘BBB,’ and 3 branded with a single eA/ the same being all the watermelon seed grown and gathered by John Bell during the year 1917.
    “6. That the said John Bell, instead of delivering the said [seed ?] to plaintiff in accordance with his contract, converted them to his own use by selling them to H. C. Copeland at 15(i per pound, and fails and. refuses to deliver them to the plaintiff in compliance with his contract.
    “7. That the said seed are now in the possession of H. C. Copeland, the same being of the value of $325.00.
    “8. That petitioner claims title; to the said seed, and has made-demand upon H. C. Copeland for the same, but he fails and refuses to deliver them to your petitioner, or to pay him the profits thereof.”
    The contract, a copy of which was attached to the petition, is as follows:
    • “Memorandum of agreement, made this 10th day of January, 1917, by which I, John Bell, of -, agree to undertake to raise for and deliver to D. H. Gilbert, of Monticello, Florida, as hereinafter provided, the following named seeds'on land suitable in quantity and condition for the purpose and located in the County of Jefferson, State of Florida, it being understood that the stock seed and: the seed crop produced therefrom is, and is to remain, the property of D. H. Gilbert, except as hereinafter provided : Ten 10 acres Watson. And I hereby agree to properly prepare and plant said land with stock seed to be furnished for this purpose by D. H. Gilbert. I further agree to properly cultivate ’.nd care for the -crop and harvest, cure, separate, and clean, as well as practicable with ordinary farm machinery, its entire seed products in such manner as to secure the greatest possible returns1 of seed suitable for seedman’s use, deliver all seed to D. H. Gilbert, at his warehouse in Monticello, Florida, as soon as it can be put in suitable condition, and before October 31, 1917, without reserving, wasting, selling, or allowing any portion of the crop to pass from my possession except as delivered to said D. H. Gilbert, as herein provided. I further agree that as far as I am able to prevent it,, there shall be no other plants of’ the same species grown within one fourth of a mile of the above-described crop, and that, in growing, harvesting, storing, threshing, cleaning, and delivering said seeds, I will take reasonable precaution to secure their purity and, prevent seed of any chance plants of a different variety or of a stock of the same variéty different from that furnished by D. H. Gilbert. becoming mixed with seeds grown under this agreement. It is further mutually agreed that D. H. Gilbert or his agent may at any time enter the field and at his own expense make such examinations, selections, or rejections as he deems desirable for the betterment of the crop for seed purposes,' and he is not to pay for any necessary damage, if any, to the general crop, resulting from such work. It is further mutually 'agreed 'that upon the delivery of the crop, it is to be carefully weighted and tested. Any necessary re-milling to be done by D. H. Gilbert at his own expense. Payment is to be made only for such seed as he considers sufficiently clean, bright and vital for seedman’s use, test to be not less than 80% germination, no credit being given for dirt, damaged, or poor seedj which has to be removed. In all cases all screenings and culls. are to remain the property of the party who separates them from the crop. It is further mutually agreed that, if the crop as delivered is impure, through fault of the grower, or in any other respect is, in the judgment of said D. H. Gilbert, unfit for seedman’s use, and cannot be made fit without an unreasonable amount of re-cleaning or handpicking, D. H. Gilbert may refuse to accept it in fulfilment of this contract. In this event it is agreed that the title to said crop shall vest in said John Bell.
    “In consideration of the faithful carrying out of the provisions of this agreement on the part of the said John Bell, and for his services in the growing and delivering said seed, D. H. Gilbert hereby agrees to pay him at the rate of ten cents per pound for all the seed satisfactory to said D. H. Gilbert which he.may deliver in accordance with this agreement, in excess of the stock seed furnished him, said payment to be made immediately upon receipt of such seed and the ascertaining by D. H. Gilbert that it is vital and fit for seed purposes. „
    “John Bell x his mark.
    “Witness. Mable Yon.”
    The trial judge sustained a general demurrer of the defendant and dismissed the petition.

      Clifford E. Hay, Eldon L. Joiner, for plaintiff.

      ■Titus, Dekle & Hopkins, for defendant.
   Jenkins, J.

(After stating the foregoing facts.) The question is, did Bell, under his contract with Gilbert, agree to sell his labor, or did the product of his labor -constitute the subject-matter of the contract? In other words, did Bell, under the terms of that writing, obligate himself to work as a laborer, in accordance with stipulated rules and restrictions, in the production for Gilbert, and under the latter’s direction, of a certain commodity, at a wage to be determined by the amount of the output produced and delivered ; or must the intent and purport of the writing be taken as constituting an' executory contract for the sale of a commodity, whereby Bell obligated himself to produce for himself, and then to sell and deliver to Gilbert, a certain described product of his labor ? It is plain that, by the explicit terms of the instrument itself, the first construction is declared to haye been the intent of the parties to the'agreement. Must the law set up a contrary construction? In the contract Bell agrees “to raise for and deliver.to D. H. Gilbert’^ the described seed; and it is further stated, as showing the intent of the parties, that “the stock seed and the seed.crop produced therefrom is, and is to remain, the property of D. H. 'Gilbert.” Then follow certain stipulations of.the contract, governing and restricting the grower of the seed in his work of production, with a provision added that “D. H. Gilbert or his agent may at any time enter the field and at his own expense make such examinations, selections, or rejections as he deems desirable for the betterment of the crop for seed purposes, and he is not to pay for any necessary damage, if any, to the general crop, resulting from such work.” The contract concludes as follows: “In consideration of the faithful carrying out of the provisions of 'this agreement on the part of the said John Bell, and for his services in the growing and delivering said seed [italics ours], D. H. Gilbert hereby agrees to pay him at the rate of ten cents per pound for all the seed satisfactory to said B. H. Gilbert which he may deliver in accordance with this agreement, in excess of the stock seed' furnished him, said payment to be made immediately upon the receipt of such seed and the ascertaining by B. H. Gilbert that it is vital and fit for seed purposes.” The contract as made between Gilbert and Bell being'in writing, no question arises as to the application of the statute of frauds; but we think an answer to the question which is in fact involved can be arrived at by determining whether, if this contract had not been in writing, Bell, upon himself complying with its terms, could have enforced fulfillment on the part of Gilbert.

In the case of Cason v. Cheely, 6 Ga. 554, Judge Nisbet, speaking for the court, said: “If the contract is for the sale of goods, it is within the statute, and if for work and labor done, it is not. The real difficulty is to fix a rule by which it may be determined what contracts are for the sale of goods, and what for work and labor done. There are two classes of cases which are easily determinable. Where- the article exists at the time in solido and is capable of immediate delivery (as cotton in bags), the contract is clearly within the statute, as in Cooper v. Elston [7 T. R. 14]. All contracts for the sale of goods existing at the time in solido and capable of immediate delivery constitute a class about which there can be no difficulty—they are within the statute, without a case to the-contrary. The other class of contracts which are equally free from difficulty are like that in Towers v. Osborne [1 Strange, 506], where an agreement is made for goods not in esse, and, therefore, incapable of immediate delivery, but, by the agreement, to be made by .the work and labor and with the material of the vendor, and which when made.may be reasonably presumed to be unsuited to the general market,—such as contracts for the manufacture of goods suited alone to a particular market, or for the painting of one’s own portrait. In the former class the contracts are for the sale of goods upon which no work or labor is to be bestowed. In the latter class the work and labor and material constitute the prime consideration. * They are for work and labor, and are, by authority and upon principle, without the influence of the statute. Ex equo et bono, a man who agrees to bestow his labor in the manufacture of goods for a price, and which price he must lose unless the goods are received by him who ordered them, ought to be paid; and a statute which would .protect the purchaser from liability in such a case would be alike impolitic and unjust. The eases which are difficult of determination are those which partake in some degree of both the classes referred to,, yet fall decidedly within neither.” In that opinion (p. 561) the following rule is adopted: “Such contracts only are excluded from the operation of the 17th section of the Statute of Frauds ‘as primarily contemplate work and labor to be done, at the instance of the purchaser, and for his use and accommodation, so as to make the work and labor of the contracting vendor, or such as he may‘procure to be bestowed at his -expense, the essential consideration of the contract.’ ”

In the instant case a particular stock of seed was furnished to Bell, the increase from which he agreed to “raise for and deliver to D. H. Gilbert.” - The method and manner of1 cultivation is prescribed by the terms of the contract, by which Gilbert is given the right, either for himself or through an' agent, to “at any time enter the-field and at his own expense make áueh examination, selections, or rejections as he deems desirable for the betterment of the crop for seed purposes,' and he is not to pay for any necessary damage, if any, to the general crop, resulting from such work.” Had this contract not been in writing, yet Bell had taken the seed thus furnished him and faithfully complied with the terms of the agreement as to how the seed should be grown and prepared, and had recognized all the fights and privileges given Gilbert under the agreement, could it be said that Bell could not have enforced a compliance on the part of Gilbert?' We think that he could have done so. That the product of the culture, in point of fact, appears to have had a value to at least one person other than the seedman for whom they were grown is shown by the actual sale to the defendant in trover, and for an increased price; however, this can not negative the fact that the commodity was nevertheless of a “peculiar character,” and was not only a particular seed stock, grown for a particular person, but was grown under particularly prescribed stipulations and under Gilbert’s right of direction; and since the contract itself says that the seed were to be raised for> Gilbert, and that the compensation provided for by the agreement was “for his services in the growing and delivering” of the seed, which were “to remain the property of Gilbert,” we see no sufficient reason why a different cdnstruction must be enforced as a matter of law.

Judgment reversed.

Wade, O. J., concurs. Luke, J., absent on account of illness.


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    9553.
    Anderson et al. v. First National Bank of Millen.
    Decided November 1, 1918.
    Complaint; from city court of Millen—Judge Dekle.January 21, 1918.
    The First National Bank of Millen sued A. S. Anderson, C. M. Gay, and R. D. Kent on a promissory note of the defendants for $500 principal, dated September 10, 1915. The defendants filed an answer in which they denied indebtedness and pleaded as follows: “Defendants say that said note is one of A. S. Anderson’s and which C. M. Gay and R..D. Kent are only indorsers, and that said First National Bank is due said A. S. Anderson more than he is due them, and therefore there is nothing due thereon.” By amendment it was averred: “that during the year 1915 said A. S. Anderson was elected and acted as vice-president of said First National Bank of Millen, 'and was to be paid for his°.services as such and as attorney and other clerical work done during 1915, and the amount to be decided upon and was to- be a reasonable salary; and in addition thereto was to he loaned certain sums not over $2500 in all; that said A. S. Anderson served as such vice-president and attorney and was never paid anything at all for such, and said hank refused not only to make the loans as agreed upon, but also to renew the loans already made. Defendants say that six hundred is not an excessive amount to ask for said services, and that hi’s services were worth that sum, and «'said bank is justly indebted.to said A. S. Anderson in said amount, and said sum or any part has never been paid, and defendants ask to be allowed to set off this sum against the- amount herein sued for, with judgment for balance of said amount. Said hank having regularly authorized, approved, and accepted such services.” An additional amendment was as follows: “Defendants allege and say that from January 12, 1915, to January 12, 1916, said A. S. Anderson, in addition to his services as vice-president of said First National Bank of Millen, also acted as the attorney for said bank for said time, and in such capacity was, during the months of January, February, March, April, and May especially, and also the remainder of said term, in constant attendance at said bank, advising with them or their attorney and looking after its interest generally; that such services were well worth the sum of $600 for said months of January, February, March, April, and May, 1915,. not considering his other services or any other time; that said services were rendered‘at request of the officers and directors of said First National Bank, with the understanding that they would be paid for, and under such conditions as to put said bank and its officers and agents that said A. S. Anderson would be paid; that said bank, its officers and agents, accepted, approved, and profited by his said services for said time said sums and more, and that said First National Ban& can not escape payment therefor.” ' ■
   Bloodworth, J.

The court did not err either in striking the pleas filed in this ease or in directing a verdict for the plaintiff.

Judgment affirmed.

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

The plaintiff filed a motion to strike the plea and answer, for the following reasons: (1) No legal defense is set up. (2) The defendants do not fully, plainly, and distinctly set forth the cause of action that they seek to set off, and do not attach to their answer an itemized statement of the indebtedness they hold against the plaintiff. ■ (3) Defendants do not show how plaintiff is indebted to A. S. Anderson; they do not show whether the alleged indebtedness to A. S. Anderson is due under a written or a parol contract; they do not show how the plaintiff has become indebted to A. S. Anderson for salary as vice-president, or that the plaintiff has ever agreed to pay him any salary as vice-president; they do not show when he became vice-president, or when the plaintiff contracted to pay him for services as vice-president. It is not shown 'how the plaintiff became indebted to him for services as attorney; it is not shown whether there was a specified amount due him for services generally as attorney, or whether the same originated by special employment for specific .services, or of what the services consisted. (5) It is not shown that any legal contract was’ ever made to pay said Anderson a salary as vice-president, or to pay him for services as an attorney.

A. S. Anderson, for plaintiffs in error, cited:

Park’s Code, § 3222; Towers Excelsior Co. v. Inman, 96 Ga. 506; Robinson v. Bealle, 20 Ga. 276 (8).

William Woodrum, contra, cited:

Home Mixture Guano Co. v. Tillman, 125 Ga. 172, 178; Ellis v. Ward, 137 Ill. 509; Park’s Code, § 5668; Threlkeld v. Dobbins, 45 Ga. 144; Beck Duplicator Co. v. Fulghum, 118 Ga. 836 (3); Pacific Bank v. Stone, 121 Cal. 202 (53 Pac. 634).


author: Harwell, J. Harwell, J.

text:
    9554.
    KENNEDY & COMPANY v. SAVANNAH BUGGY COMPANY.
    Decided November 1, 1918.
    Rehearing denied November 11, 1918.
    Complaint; from city court of Thomasville—Judge W. H. Hammond.

      Merrill & Grantham, for plaintiffs in error.

      Titus, Delete & Iloplcins, contra.
   Harwell, J.

In this case no final judgment is excepted to, the only error assigned in the bill of exceptions being upon the judgment sustaining the demurrer to the plea and answer of the defendant and the striking of this plea and answer. Moreover, it does not appear from the bill of exceptions or the record that any final judgment was ever rendered. The bill of exceptions therefore can not be maintained, and the writ of error must be dismissed. Woodall v. Harris, 22 Ga. App. 69 (95 S. E. 377), and cases therein cited.

Writ of error dismissed.

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

ON MOTION ROE REHEARING.

Harwell, J.

The able counsel for plaintiff in error, in their motion for rehearing, called the attention of this court to the cases of O’Neal v. Miller, 9 Ga. App. 180; Whiddon v. Thomasville, 10 Ga. App. 194; Walker v. Crummey, 18 Ga. App. 414; Toomey v. Reid, 133 Ga. 855. The cases of Walker v. Crummey, supra, and Toomey v. Raid, supra,' are not at all in point, and need not be discussed. In O’Neal v. Miller and in Whiddon v. Thomasville, supra, a general demurrer to the petition was sustained, the plaintiff excepted to the sustaining of this general demurrer, and it was held that the judgment sustaining the general demurrer to the petition was a final judgment, and that the assignment of error was sufficient. In. the instant case the demurrer to the plea was sustained, and the plea stricken. The court can not in this case hold as a matter of law that a final judgment has been rendered because.the plea has been stricken, or because the suit is on a promissory note. Neither can we look to the briefs to get that information. The hill of exceptions should show that a final judgment has been rendered and excepted to. In thé O’Neal and Whiddon cases, supra, the rulings were predicated upon the fact that when a general demurrer to a petition is sustained, it necessarily follows that a final judgment has been rendered. The suit is out of court. But it does not follow that because a plea has been stricken a final judgment has been rendered. Under the repeated rulings of this court and of the Supreme Court the dismissal of the writ of error, in our judgment, is demanded, and it could avail nothing to grant a rehearing. It is therefore denied.


text:
    9567.
    TRICE v. SHAW.
    1. Where the jury find in favor of the plaintiff, on the trial of the issue made by a counter-affidavit, on the foreclosure of a laborer’s lien, the verdict must be for a fixed sum of money, or the amount of the finding must be ascertainable from the record. The verdict in this case being for a certain number of pounds of seed-cotton, in addition to a stated sum of money, and there being no evidence as to the value of the seed-cotton, the finding as to the seed-cotton was void. It could not be upheld -as a finding as to the plaintiff’s title to the cotton. Title can s not be settled on the trial of such an issué.
    2. That part of the verdict which is expressed in dollars and cents is not supported by anything in the record.
    Decided November 1, 1918.
    Certiorari; from Pike superior court—Judge Searcy. January 12, 1918.

      Redding & Lester, for plaintiff in error.

      A. M. Zellner, James M..Smith, dontra.
   Bloodworth, J.

A justice of the peace issued an execution on the foreclosure" of a laborer’s lien in favor of Shaw against -Trice, which was levied, and a counter-affidavit was filed. On appeal to a jury in the justice’s court the evidence showed that Shaw and his brother-in-law, Story, worked a farm on the land of Trice, on shares, Trice to have half of the crop and Shaw and Story a fourth each. The'jury rendered the following verdict: “We, the jury, find for the plaintiff $28.,38 and one fourth of -the 1390 pounds seed-cotton, with interest.” This verdict, in so far as it relates to the seed-cotton, is illegal and void, and no legal judgment could be entered thereon. In a proceeding to enforce a laborer’s lien the verdict, if, for the plaintiff, must be for a fixed amount, or an amount that can be made certain by the record, and upon which a legal judgment can be entered. Such a judgment becomes a special lien in favor of the plaintiff “on the products of their labor,superior to all other liens, except liens for taxes, and special liens of landlords on yearly crops” - (Civil Code of 1910, § 3335), and a general lien “upon the property of their employers, liable to levy and sale, for their labor, which is hereby declared to be superior to'all other liens, except liens for-taxes, the special liens of landlords on yearly crops, and such other liens as are declared by law to be superior to them.” Civil Code (1910), § 3334. On the trial of the issue made by the filing of a counter-affidavit to a laborer’s lien the only question for determination is the amount due the laborer by the landlord. The title to the property levied oh can not be settled on the trial of the issue raised by the counter-affidavit. The only construction that can be given the verdict in the instant case, so far as it relates to the seed-cotton, is that it placed the title thereto in the plaintiff. As stated above, this is illegal.

Even with this clearly illegal portion of the verdict stricken, there are no facts to support the finding of that portion of the verdict expressed in dollars and cents. Judging from the verdict rendered, the jury had before it evidence not incorporated in the petition, which was adopted by the justice of the peace as his an7 swer. Yet neither traverse nor exception to the answer was filed, and we must decide the issue upon the record as brought to us. There -was no testimony whatever as to the value of the cotton. “A hew'trial will be granted'when the verdict of the jury is so uncertain that it can not be executed, or is expressed in such terms that an objectionable part can not be set aside with justice to both parties.” Mitchell v. Printup, 27 Ga. 469. Darien & Western R. Co. v. McKay, 132 Ga. 672 (64 S. E. 785). The judge of the superior court erred in overruling the certiorari.

Judgment reversed.

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


author: Harwell, J.

text:
    9642.
    Walker v. The State.
    Decided November 1, 1918.
    Accusation of violation of prohibition law; from city court of Dublin—Judge Flynt. .March 13, 1918.

      Fred Kea, for plaintiff in error. 8. P. New, solicitor, contra.
   Harwell, J.

The demurrer to the plea in abatement, based upon the ground of alleged former jeopardy or autrefois convict, was properly sustained by the judge of the city court; the judgment and sentence in the former case being rendered by the judge of the superior court in a county other than that in which the crime was committed, and being void and a nullity for want of jurisdiction. The decision herein is controlled by the ruling of this court in Barrs v. State, ante, 644.

Judgment affirmed.

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


author: Broyles, P. J. Harwell, J.

text:
    9687.
    BASIL v. THE STATE.
   Broyles, P. J.

1. To convict an innkeeper, who has personal charge of an inn or hotel, of keeping a lewd house, it is sufficient if the evidence shows actual knowledge of the illegal practices, or that the defendant was in possession of such facts as to charge him with “constructive” or “implied” knowledge. Such knowledge may be shown by direct proof, or by proof of facts and circumstances from which the jury could reasonably infer that the defendant did have knowledge that acts of adultery or fornication were committed in the house. “He can not shut his eyes to what is going on around him, for the purpose of avoiding knowledge, and then defend upon the ground of his lack of knowledge.” Fitzgerald v. State, 10 Ga. App. 70 (2), 72 (72 S. E. 541).

{a) In such a case the fact that women of notoriously lewd reputation room at the hotel, and the further fact that the hotel has a reputation in the community of being a place where adultery or fornication is commonly committed, would be sufficient to authorize a finding that it was a lewd house, and that the proprietor knew, or should have known, that he was maintaining a lewd house. ' I

(b) The Fitzgerald case, supra, was a unanimous decision by three Judges, has never been overruled, and is binding upon this court until overruled. Upon a review thereof, as requested by the plaintiff in error, its rulings are reaffirmed.' The holding in Jones v. State, 14 Ga. App. 811 (82 S. E. 470), by two Judges, is in conflict with the older adjudication in the Fitzgerald case, and will hot be iollowed.

2. Under the rulings stated above, the refusal of the trial judge to give the various requested "instructions in charge to the jury was not error.

3. No reversible error appears in any of the excerpts from the charge excepted to; nor in any of the rulings of the court upon the admissibility of evidence. The conviction of the ’ accused was amply authorized by the evidence, and the judge of the superior court did not err in overruling the certiorari.

Decided November 1, 1918.

Certiorari; from Fulton superior .court—Judge Bell. March 29, 1918. .

George Gordon, for plaintiff in error.

John A. Boylcin, solicitor-general, Lowry Arnold, solicitor, E. A. Stephens, contra.

Judgment affirmed.

Bloodworlh, J., concurs. Harwell, J., concurs specially.

Harwell, J.

If there is any conflict in Fitzgerald v. State and Jones v. State (cited supra), the correct rule, in my opinion, was stated by Judge Wade in the !jones case. I am inclined to think that Judge Powell, by the use of the phrase “knowledge, . . implied,” etc., in the 2d headnote to the Fitzgerald decision, referred to knowledge which might be inferred by the jury from circumstances. In my judgment, in order to authorize a conviction, knowledge of the illegal practices by the defendant must appear; but this knowledge may be shown by direct proof, or inferentially by circumstances. I recognize that if there is a conflict in the two decisions above referred to, the one rendered in the Fitzgerald case is authority until overruled.


text:
    9701.
    TONEY v. THE STATE.
    The verdict being warranted by the evidence, and no reversible error of law. appearing, this court will not interfere with the judgment overruling the certiorari.
    Decided November 1, 1918.
    Rehearing denied November 7, 1918.
    Certiorari; from Fulton superior court—Judge Bell. March 22, 1918.' ' •

      Hugh Howell, Morris Macks, Brewster, Howell & Heyman, for plaintiff in error.

      John A. Boykin, solicitor-general, Lowry Arnold, solicitor, E. A. Stephens, contra.
   Harwell, J.

O. S. Toney was convicted, in the criminal court of Atlanta, of the offense of selling spirituous and intoxicating-liquors and of possessing spirituous and intoxicating liquors. He obtained a certiorari which the judge of the superior court overruled. To this ruling he excepted.

Three deputy sheriffs, Holland, White, and Milam, testified, in substance, that they watched the defendant’s house at night and saw negroes coming therefrom; that they arrested three of these negroes and found in their possession whisky in cans; and that the negroes stated that the whisky came from defendant’s house; The officers then took the negroes to defendant’s house, and one of them stated to him that the negroes claimed to have bought the whisky from him, and asked defendant to let them search his house. Defendant refused with an oath, and .slammed the door. The'three negroes j McWhorter, Jones, and Lee, testified, in substance, that Dick Toney had notified them, or some of them, that they could purchase the whisky on this night; that they got the whisky from Dick Toney; that the whisky was in O. S. Toney’s house; that the'three sales were made in his house; and that 0. S. Toney was present and gave directions when some of the sales were made. One witness testified that Dick Toney remarked to the defendant in the presence of the witness: “This boy has not anything to put the whisky in,” and the defendant said: “Let him have two cans.” The defendant then turned to the witness and said: “If you don’t bring these cans back, it will cost me forty cents.” Another witness testified that he purchased some whisky from Dick Toney while the defendant was present, and the defendant said to witness: “Hurry up and get your stuff and get out. You are making too much noise.” According to. the testimony, some of the whisky was in a bath tub and some in tin cans in defendant’s house. The defendant introduced no evidence, and in his statement claimed that the whisky was put in his house without his knowledge, and that he had nothing to do with the measuring or selling of it. He claimed that he did not curse the officers, and that he told them that he had no whisky in his house; that his little girl was sick and he could not let them come in to search.

There were various assignments of error which the court considers it unnecessary to discuss.

Judgment affirmed.

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


author: Bloodworth, J. Bloodworth, J.

text:
    9807.
    SABLE v. THE STATE.
    “Objection that a sentence imposed in a criminal case is excessive, or for any reason illegal or irregular, can not be properly made the ground of a motion for a new trial.”

      ■(a) Where in such case a motion for a new trial in a city court is based upon the ground that the sentence is excessive, and the ,trial judge overrules the motion and the case is carried by certiorari to the superior court, the certiorari presents no question to the judge of the superior, court upon which to exercise his discretion.
    Decided October 8, 1918.
    Rehearing denied November 16, 1918.
    Certiorari; from Chatham superior courts Judge Meldrim. April 33, 1918. ' ,

      Morris II. Bernstein, Shelby Myriclc, for plaintiff in error.

      Walter 0. Eartridge, solicitor-general, contra.
   Bloodworth, J.

An accusation was preferred in the city court of Savannah against Loeb Sable. He was convicted on the second count thereof, which charged that he “did unlawfully keep on hand at a place of business, to wit, the place of business of the said defendant, alcoholic liquors, spirituous liquors, and malted, fermented and brewed liquors, manufactured from malt, wholly and in part.” Sable made a motion for a new trial, and one ground of the motion was “because the punishment is excessive.” The motion was overruled, and by certiorari the defendant carried the case to the superior court, and the judge of that court, passed an order in which the certiorari was “overruled and dismissed.” An appeal was then taken to this court. In the brief of counsel for the plaintiff in error the only proposition argued was that the judge of the superior court, in certiorari cases of this character, is vested with discretionary powers and has the right to change or modify the sentence imposed by the judge of the city court, and that in his order overruling and dismissing the certiorari the superior court judge refused to exercise this discretion, and said: “In the instant case I decline to change the sentence, upon the ground that I have no legal right to do so.”

' The overruling by the judge of the city court of the ground that the sentence was excessive was right. This court and our Supreme Court have repeatedly held that “ Objection that a sentence imposed in a criminal case is excessive, or for any reason illegal or irregular, can not be properly made the ground of a motion for a. new trial.” Burgamy v. State, 114 Ga. 852 (2), 855 (40 S. E, 991). In Chap man v. State 118 Ga. 58 (44 S. E. 814), Justice Cobb said: “Objections to' a sentence can not be properly made grounds of a motion for a new trial. If there has been a lawful verdict of conviction rendered in a criminal case, an error committed by the 'judge in the imposition of the sentence will, be no sufficient reason for setting aside the verdict and trying the accused 'again upon the question of his guilt or innocence. Such being the case, of- course the objection should not be set forth in a motion for a new trial, which is the remedy given to the accused for determining whether any error has been committed prior to the verdict which would require another trial.” Among the other cases in .which the same principle has been ruled are Hill v. State, 122 Ga. 166 (50 S. E. 57); Sturkey v. State, 116 Ga. 526 (42 S. E. 747); Bellinger v. State, 116 Ga. 545 (42 S. E. 747); Hardison v. State, 95 Ga. 337 (5), 338 (22 S. E. 681); Martin v. Rome, 15 Ga. App. 496 (83 S. E. 872); Elzie v. State, 21 Ga. App. 501 (94 S. E. 627).

As the judge of the city court.did not err in overruling the motion for a new trial, neither did the judge of the superior court err in overruling the petition for certiorari. If the fact that the sentence is excessive can not properly be made a ground of a motion for a new trial, it follows that it is not error for the judge of a trial court to overrule a motion based on that ground. In this case, had the exceptions been djreet to this court from the city court, we would promptly and unhesitatingly have said that the ground of the motion alleging that the verdict was excessive was not good, because .“the sentence imposed is not matter proper for a motion for new trial.” Montross v. State, 72 Ga. 261 (5a), 268 (53 Am. R. 840). If the fact that a sentence is alleged to be excessive can not be made a ground of a motion for a new trial, can this “dead thing” be given life by filing a petition for certiorari? Assutedly not. This being true, there was nothing before the judge of the superior court upon which he could exercise his discretion. It matters not by what proc'ess of reasoning the judge of the superior court reached the conclusion that the certiorari should be “overruled and dismissed,” the conclusion is eprrect, and the judgment must be

Affirmed.

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

ON MOTION ROE REHEARING.

Bloodworth, J.

A motion for a rehearing was filed in this case, alleging that the court overlooked certain exceptions set forth in the petition for certiorari and copied in the motion for rehearing, as follows: “Petitioner avers that the court erred in entering a'judgment sentencing said defendant to twelve months on the chain gang, upon the ground that said sentence is excessive and that if there was any violation of the laws of Georgia, it was a technical violation of said law and the said sentence of the court should not have been made so severe.” If upon proper assignment of error the judge of the superior court could change or modify the sentence imposed in a-criminal case by the judge of the city court of Savannah (and in the opinion of the writer he could not do this), the exceptions copied above are too general to raise any question for determination by this court. Our courts of last resort have repeatedly held that a judgment is not excessive if it is within the limit fixed, by the law; and in the exceptions above there is nothing to show what the sentence is, no specific reason is assigned why it is excessive, and there is nothing to show that in imposing the sentence the trial judge did not exercise'the discretion given him by the law. When the opinion in this case was written the court was of the opinion that the only question to be determined, under the brief filed by the attorney for the plaintiff in error and under the assignments of error in the bill of exceptions and the petition for certiorari, was whether or not the judge of the city court erred in overruling the motion for a new trial; and we are still of the same opinion. As 'stated in that opinion, “As the judge of the city court did not err in overruling the motion for a new trial, neither did the judge of the superior court err in overruling the petition for certiorari.”

Rehearing denied.


text:
    9751.
    COOK v. THE STATE.
    1. “Every indictment or accusation of tlie grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may be easily understood by the jury.”

      (a) “The indictment was sufficiently full and definite in its statement to inform the defendant of the offense with which he was charged, and' exact enough to protect him from a second jeopardy.”
    2. The court did not err in overruling the motion to change the vénue.
    3. “Alleged disqualification of grand jurors propter affectum is not a valid ground for plea in abatement to an indictment.”
    4. Ground 4 of the amendment to the motion for a new -trial will not be considered, because the trial judge refused to approve and certify that ground.
    5. “In trials for misdemeanors there is no right to examine a juror upon his voir dire without first challenging him and assigning a cause of challenge.”
    6. As qualified by the trial judge there is no merit in ground 6 of the motion, as to disqualification of a juror.
    7. “Prima facie the time fixed by the rules of court for the argument of cases is sufficient; and the discretion of the judge in refusing additional time to counsel is not abused where it does not appear that the issues are so complicated, or the evidence so voluminous, as to make the case exceptional.”
    8. Grounds 8 and 9 of the motion for a new trial, not having been .argued in the brief of plaintiff in error, will be treated as abandoned.
    9. The court did not err in admitting the evidence of Forrest Adair, of which complaint is made in grounds 10 to 18 inclusive.

      (а) A .conspiracy can be shown by circumstances, as well as by direct evidence.
    (б) “If sufficient prima facie evidence of a conspiracy is introduced to authorize the admitting of evidence of acts and declarations of one of the alleged conspirators, ultimately it is for the jury to determine whether, "from the whole evidence, a conspiracy has been shown.”
    10. The evidence to which objections were made in grounds 20 and 21 was not inadmissible for the reasons urged.
    11. In so far as they were correct and applicable to the facts, the requests to -charge embraced in grounds 22, 23, and 25, were covered by the charge of the court.
    12. “It is only where a case is wholly dependent upon the law of circumstantial evidence that the trial judge is required- to give the law of circumstantial evidence.” The indictment in this case being supported by direct as well as circumstantial evidence, it was not erroneous for the court to fail to charge the law of circumstantial evidence.

      (a) lira criminal case in which the evidence is entirely circumstantial the failure of the judge to charge thereon “will not require another trial when the guilt of the accused is clearly-and convincingly proved, and the charge as to the amount and character of proof requisite to a lawful com lotion is such as to leave no room for doubt that the verdict would have been the same even if the court had in terms stated to the jury chat, -in order to warrant a verdict of guilty, the evidence must not only be consistent with the guilt of the accused, but inconsistent with every other reasonable hypothesis.”
    13. “The charge of the court having, as a whole, properly submitted to the jury the controlling issues involved, under' correct principles of law, the inaccuracy and immateriality which might exist in the portions excepted to can not work a reversal, where it appears that the jury could not reasonably have been misled thereby.”
    14. When read in connection with the entire charge of the court and in the light of all the evidence, the excerpts from the charge of which complaint is made contain no error that would require the granting of a new trial.
    7.5. No constitutional question is raised by ground 45 of the motion for a new trial.
    16. The alleged newly discovered evidence of R. E. Lee, referred to in ground 46, can in no sense be “newly discovered.”
    17. The evidence demanded the verdict rendered.
    Decided November 1, 1918.
    Indictment for blackmail; from Fulton superior court—Judge Hill. March 30, 1918.
    The grand jury of Fulton county returned an indictment against J. W. Cook and Mrs. H. H. Hirsch, charging them with the offense of blackmail, and containing three counts, as follows: First, that the defendants “did verbally accuse Asa G. Candler Sr. with the offense of adultery with Mrs. H. H. Hirsch, a married woman, with intent to extort money from the said Asa G. Candler Sr.” Second, that the defendants “did verbally threaten to accuse Asa G. Candler Sr. with the offense of adultery with Mrs. H. H. Hirsch, with intent to extort money from said Asa G. Candler Sr.” Third, that the defendants “did verbally accuse and threaten to accuse Asa G. Candler Sr. with preparing and attempting to have sexual intercourse, and actually having had sexual- intercourse with Mrs. H. H. Hirsch, a married woman, ahd did then and there threaten that unless a sum of money was paid to the said J. W. Cook and the said Mrs. H. H. Hirsch, to expose said sexual intercourse and said preparations and attempt to have sexual intercourse to the husband of the said Mrs. H. H. Hirsch, and likewise to bring said alleged acts to the attention of the grand jury of the county of Fulton, the same being done with intent to extort money from the said Asa G. Candler Sr.” A demurrer to the indictment, a motion for change of venue, and a plea in abatement were overruled. The trial -resulted in a verdict of guilty, the defendant’s motion for a new trial was overruled, and the case came to this court on exception to the rulings stated.

      John R. Cooper, James & Bedgood, Richard B. Russell, for plaintiff in error.

      John A. Boylcin, solicitor-general, B. A. Stephens, B. B. Arnold, coiitra.
   Bloodworth, J.

(After stating the foregoing facts.) The material parts of the indictment will be found in the foregoing statement of. facts. Whether or not the demurrer should have been sustained and the indictment quashed will be detérmined under the laws of this State. Section 954 of the Penal Code, (1910) says: “Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may be easily understood by the jury.” The first headnote in Williams v. State, 2 Ga. App. 629 (58 S. E. 1071), is as follows: “Where every essential ingredient of the offense charged is set forth with sufficient clearness to enable the defendant to prepare his defense, and the jury clearly to understand the nature of the offense, the accusation is not demurrable.” The indictment in this case measures fully up to the above requirements. It is “so plain that a common man may without doubt or difficulty, from the language used, know what is the charge made against the accused.” Locke v. State, 3 Ga. 534, 540. “The indictment was sufficiently full and definite in its statement to inform the defendant of the offense with which he was charged, and exact enough to protect him from a second ' jeopardy.” Youmans v. State, 7 Ga. App. 101 (4), 111 (66 S. E. 383). The indictment is for a statutory offense, and it is a well-settled principle of pleading in this State that “an indictment which charges the offense defined by a legislative act in the language of the act, where the description of the acts alleged as constituting the offense is full enough to put the defendant on notice of the offense with which he is charged, is sufficiently specific.” Glover v. State, 126 Ga. 594 (55 S. E. 592); Stoner v. State, 5 Ga. App. 716 (63 S. E. 602). Indeed the question as to whether this indictment is good does not seem to be an open one. In the case of Chunn v. State, 125 Ga. 789 (54 S. E. 751), in which the distinguished leading counsel for the plaintiff in error in this case was sole counsel for the plaintiff in error, it was held: “The offense of blackmail as set forth in the Penal Code, § 116 [Code of 1910, § 118] was sufficiently laid in an indictment which alleged that the defendant, with intent fto extort money from a named person, did" accuse him of a particular crime, and compel him to do certain acts against his will.” The indictment in that case, in so far as it alleged that the defendant had charged the prosecutor with a crime, asserted that the defendant did “unlawfully verbally accuse M. Kunz with the crime of fornication and .adultery with Mrs. Eosa Chunn.” It went further, however, and charged the defendant with doing certain other things “against his will,” and alleged that the charge of the crime and the compelling of Kunz to do the things alleged against his will were with the intent to extort money from him. The demurrer in that case was somewhat similar to the one in the instant case; it was overruled, and that ruling was sustained by the Supreme Court. Fornication and adultery, and adultery, are each clearly understood and recognized as crimes under our law. In the opinion in the Chunn case' Mr. Justice, Atkinson said (p. 790) : “It will be observed that the gravamen of the offense is the ‘intent to extort money or other thing of value.’ In the indictment it is clearly alleged that the defendant did the several things which are therein specified, and that the same were done ‘with intent to extort money from M. Kunz.’ It therefore appears that the defendant was charged in the very language of the statute, which, under familiar rules of law, is all that is required.” Under the above-quoted section of the' code the crime of blackmail is complete if any person “with intent to extort money or other thing of value,” either “verbally or by printing or writing, accuse another of a crime or offense,” or “expose or publish any of his or her personal or business acts, infirmities, or failings,” or “compel any' person to-do any act, or to refrain from.doing any lawful act, against his will.”» In the Chunn case the indictment alleged not only that the defendant charged the prosecutor with' a crime,— adultery and fornication,—but alleged-that the defendant compelled the prosecutor against his will to do certain other things, with intent to extort money. The court held, in effect, that the indictment was good on both branches of the charge.

Complaint is made that the judge erred in overruling the motion to change the venue. This point is saved to the plaintiff in error by the exceptions pendente lite. Before such a ruling would avail the movant he must show that by it injury resulted to his cause. While the exceptions pendente lite recite that, “Upon said application or petition being read, and before defendant’s connsel could have an opportunity to be heard, and before an opportunity was afforded defendant, to introduce any testimony to sustain any allegations in his motion to change the venue, the judge presiding then and there, overruled said application to change .the venue of said case,” yet it nowhere affirmatively appears that he was prepared to support his motion “by affidavits or oral testimony;” and this would be necessary before the judge would have any evidence upon which to pass. Penal Code (1910), § 964. To deprive a defendant of the privilege of introducing evidence does not hurt his cause if he makes no offer to introduce evidence, or if the evidence offered would not change the result. This court can not say that the movant was hurt by the refusal of the court to hear evidence, until it is shown what the evidence is. Even when evidence has been introduced, it is the fixed policy of this State net to interfere with the discretion of the trial judge unless this discretion has been “plainly and manifestly abused.” Coleman v. State, 141. Ga. 737 (83 S. E. 227); Rawlins v. State, 124 Ga. 31 (52 S. E. 1).

The court .did not err in overruling the special plea which attacked the validity of the indictment on the ground that V. H. Kreigshaber, one of the grand jurors who participated in finding the bill, was a stockholder in a corporation of which the prosecutor was also a stockholder, and probably a director. “Alleged disqualification of grand jurors propter affectum is not a valid ground for plea in abatement to an indictment.” Hall v. State, 7 Ga. App. 115 (66 S. E. 390). See also Parris v. State, 125 Ga. 777 (3, 4) (54 S. E. 751).

Ground 4 of the amendment to the motion for a new trial will not be considered, because the trial judge refused to approve and certify that ground.

Even if ground 5 had been good as originally drawn, it was so qualified by the judge as to render it without merit. In reference to this ground of the motion the judge says: “The court certifies that the court did decline to put the jurors on the list on their voir dire on motion of the defendant, but before the jury were sworn in the ease the court did announce to counsel: 'If either side has any challenge to offer to any of these jurors I will hear the challenge,’ and the defendant’s counsel did not offqr any challenge.” There is no statutory provision in Georgia which requires that jurors in misdemeanor cases be put on their voir dire. In Schnell v. State, 92 Ga. 459 (17 S. E. 966), it was said: “In trials for misdemeanors there is no right to examine a juror upon his voir dire without first challenging him and assigning a cause of challenge. This must be done before the juror is sworn, unless the cause of challenge be unknown till afterwards. Where it does not appear to the reviewing court that any particular juror was 'challenged, or that any cause of challenge was assigned, or at what stage of the proceedings the request was made to examine jurors, on their voir dire, the refusal- of the court to put each and every one of the jurors on his voir dire at the request of counsel for the accused cannot be held erroneous, the onus of showing error being upon the party who alleges it.” 'Under this ruling the court did' not err in refusing “to put the jurors empaneled and on the list from which the jury was to be stricken on their- voir dire to test their impartiality on account of the magnitude of the case.” See also Wells v. State, 102 Ga. 658, 659 (29 S. E. 442).; Crew v. State, 113 Ga. 645 (38 S. E. 941).

As qualified by the trial judge there is no merit in ground 6 of the motion for a new trial, which is based on'the refusal of the judge to sustain a challenge to a juror on the ground that he worked for the Georgia Eailway & Power Company, of which the prosecutor is a stockholder. See, in this connection, Redfearn v. Thompson, 10 Ga. App. 550 (4), 556 (73 S. E. 949).

We cannot say as a matter of law that the judge of the trial judge abused his discretion in refusing to allow to counsel for the accused an extension of time in which to argue the case. “Prima facie-the time fixed by the rules of court for the argument of cases is sufficient; and the discretion of the judge in refusing additional time to counsel is not abused where it does not appear that the issues are so complicated, or the evidence so voluminous, as to make the case exceptional.” Bowen v. Gaskins, 144 Ga. 1 (5); Griggs v. State, 17 Ga. App. 301 (4), 302 (86 S. E. 726).

Grounds 8 and 9 of the motion for a new trial, not having been argued in the brief of counsel for the plaintiff in error, will be treated as abandoned. . In the brief, after quoting the evidence objected to, it is said': “It is insisted that the court erred in admitting this testimony as stated, over objections of defendant’s counsel, and the evidence should have been ruled out on a motion made for that purpose, and a new trial should be granted for that reason.” In reference to ground 9 the following is stated: “It is insisted that objections should have been sustained, and the court erred in ^overruling and in not sustáining the objéctions made.” No authorities are cited. “Such a statement does not amount to an argument in support of the grounds referred to, and affords no assistance to' the court in considering them, and the failure to say anything further in regard to them amounts to an abandonment thereof.” Rounsaville v. Camp, 19 Ga. App. 336 (4) (91 S. E. 446); James v. Boyett, 19 Ga. App. 157 (2) (91 S. E. 219); Muse v. Hall, 18 Ga. App. 651 (3) (90 S. E. 222); Youmans v. Moore, 11 Ga. App. 66 (74 S. E. 710). However, the conversation between the prosecutor and the .defendant on trial, the admission of which is complained of in ground 8, was clearly admissible; and the evidence, the admission of which- -is complained of in ground 9, was not the evidence of an attorney and was hot subject to objection on the ground that it was a “communication between lawyer and client, the advice he gave; it is against public policy.”

Grounds 10 to 18 inclusive are based upon alleged errors in admitting evidence of -Forrest Adair. To. some of the evidence copied in these grounds it appears that no objection was made; to other portions the objections are too indefinite to be considered; and other portions were admissible as against the objections made. Ground 19 cannot be considered, because it has been repeatedly held by this1 court-and our Supreme Court that the ground of a motion for a new trial must be complete within itself; and where it is based on the admission of evidence, the evidence itself must be set out literally or in substance, and the ground must be clear and understandable without reference to other parts of the record. See Copeland v. Ruff, 20 Ga. App. 217 (2), 218 (92 S. E. 955), and cases cited. Several of these grounds complain of the introduction in evidence of statements made by Mrs. Hirseh, on the ground that no conspiracy had been shown between Mrs. Hirseh and the defendant on trial. A conspiracy can be shown by circumstantial as well as by direct evidence. Carter v. State, 141 Ga. 308 (80 S. E. 995); Stevens v. State, 8 Ga. App. 217 (3) (68 S. E. 874). Before any motion was made to exclude evidence on the ground that no conspiracy had been shown, the evidence previously introduced was sufficient to show, prima facie, a conspiracy between Mrs. Hirscb and the defendant on trial; and.when this has been shown, the acts and declarations of the conspirators should go to the jrqy,, and it is for them finally to determine whether or not the conspiracy has been proven.. The evidence of what was said and done by .both the defendant on trial and Mrs. Ilirseh prior to-the time of finding the indictment was while the common enterprise was pending, was “during the pendency of the criminal project” and in furtherance of its object, and was admissible. Everything shown by this evidence was a part of the scheme, the common purpose, to extort money from Candler. The evidence showed a concert of action between Cook and" Mrs'. Hirsch, showed that they “conspired”—eon spirare—“breathed together,” united in a common purpose. Coleman v. State, 141 Ga. 731 (2), 733 (82 S. E. 228).

In the opinion in the case just cited, Mr. Justice Lumpkin said: “Objection.was made to several parts, of the evidence which were only admissible as tending .to show a conspiracy, or on the basis of a conspiracy; and error was also assigned on certain charges on the law of conspiracy. It was contended that the evidence was irrelevant, and that there was no sufficient evidence of a conspiracy on which, to base its admission or the charges .on that subject. After the fact of conspiracy is proved, the declarations of any one of the conspirators, during the pendency of the criminal project and connected therewith, are. admissible against all. Penal Code (1910), § 1025. While it may generally be -the better practice to require a prima facie case of conspiracy first to be made, before admitting evidence of the acts and declarations of one of the alleged conspirators, there is no inflexible rule to that effect. The trial court has some discretion as to the order in which testimony may be introduced; and if a prima facie ease of conspiracy is shown from the whole evidence, the admitting of such testimony is not error. Unless, however, a conspiracy -is shown prima facie, such • evidence can only operate against the person whose acts and declarations are proved, if he is on trial; or if he is not on trial; they are not admissible against the defendants being tried, and should be rejected. 8 Cyc. 682. If sufficient prima facie evidence of a conspiracy is introduced to authorize the admitting of evidence of acts and declarations of one of the alleged conspirators, ultimately it is for the jury to determine whether, from the whole evidence, s& conspiracy lias been shown; and if they find that none has been established, it is then their duty not to consider the acts and declarations of the supposed co-conspirator which has been admitted, except so far as they may affect him, if he is on trial. 3 Enc. Ev. 428. As to the admissibility, of the evidence, if a prima facie case of conspiracy is shown, it does not matter whether the supposed conspirator whose acts or declarations are proved is on trial or not. Slaughter v. State, 113 Ga. 284, 288 (38 S. E. 854, 84 Am. St. R. 242). A conspiracy may be shown by circumstantial evidence as well as by that which is direct. Weaver v. State, 135 Ga. 317 (69 S. E. 488); Walker v. State, 136 Ga. 126 (70 S. E. 1016); Turner v. State, 138 Ga. 808, 812 (76 S. E. 349).” In McDaniel v. State, 103 Ga. 268 (30 S. E. 29), the Supreme Court said: “The evidence being sufficient to show a common plot or conspiracy on the part of the son and the father to attack the deceased, there was no error in admitting in evidence a declaration of the son, made immediately preceding the homicide, but after formation of the conspiracy. Penal Code, § 999. While it is the better practice to require proof of the conspiracy before admitting such declarations, the admission of the evidence, in a different order will not be ground for a new trial.” In the case of Barrow v. State, 121 Ga. 187 (2) (48 S. E. 950), it was held: “Though evidence is objectionable because conspiracy was not proved, if it be afterwards shown, it renders the evidence competent.” See also Bolton v. State, 21 Ga. App. 184 (94 S. E. 95). Applying these principles to the rulings of the court below in this ease, on the objection that no conspiracy had been shown, it is clear that under the evidence there was no error in the rulings on this question.

The evidence of Mrs. Taylor and of Mr. Irwin, the introduction of which is objected to in grounds 20 and 21 of the motion for a new trial, is not inadmissible for the reason urged, that “no conspiracy has been proved.” What is said in the preceding subdivision as to conspiracy is applicable to both these grounds.

In so far as they were correct and applicable to the.facts, the-requests to charge embraced in grounds 22, 23 and 24 were covered by. the charge given.

Ground 25 complains that the court erred in failing to charge on circumstantial evidence. The trial judge certifies that there was no request so- to charge. The rule is that “It is only where a case is wholly dependent upon the law of circumstantial evidence that the trial judge is required to give the-law of circumstantial evidence.” The indictment in this case being supported by direct as well as circumstantial evidence, it was not erroneous for the court to fail to charge the law of circumstantial evidence. Nobles v. State, 127 Ga. 212 (5), 217 (56 S. E. 125); McElroy v. State, 125 Ga. 37 (53 S. E. 759); Smith v. State, 125 Ga. 296 (54 S. E. 127); Cliett v. State, 132 Ga. 36 (63 S. E. 626); Hicks v. State, 146 Ga. 221 (4), 225 (91 S. E. 57). While it is true that the evidence to show the conspiracy is circumstantial only, it is sufficient to “exclude every other reasonable hypothesis save that of the guilt of the accused.” It is so convincing that from it no other conclusion can be reached than that Cook and Mrs. Hirsch had conspired together to charge Candler with adultery and then threaten to publish the fact “with intent to extort money” frofn him. But granting that the guilt of the accused depended entirely upon circumstantial evidence, no request was made to charge thereon, and the failure of the judge so to charge does not demand the grant of a new trial “when the guilt of the accused is clearly and convincingly proved.” “While the failure of the court upon a criminal trial, in which the evidence against the accused is entirely circumstantial, to instruct the jury concerning the rule applicable to evidence of this character would, in a close case, be cause for a new trial, such failure will not require another trial when the guilt of the accused is clearly and convincingly proved, and the charge as to the amount and character of proof requisite to a lawful convictioh is such as to leave no room for doubt that the verdict would have been the same.even if the court had in terms stated to the jury that, in order to warrant a verdict of guilty, the evidence must not only be consistent with the guilt of the accused, but inconsistent with every other reasonable hypothesis.” Toler v. State, 107 Ga. 682 (63 S. E. 629). In Cason v. State, 16 Ga. App. 820 (86 S. E. 644), the 4th headnote is as follows: “The evidence demanded the conviction of the accused, and it was therefore immaterial what the judge charged or failed to charge the jury.” See also the opinion in that case (pp. 824, 825). In Hagar v. State, 71 Ga. 164, headnote 3a is as follows: “The verdict was required by the evidence, and in such cases, even if there be error in the charge, it will not necessitate a new trial.” See also the opinion in that case, and cases cited on page 167; Jones v. State, 105 Ga. 649 (31 S. E. 574); Barrow v. State, 80 Ga. 191 (3), 193 (5 S. E. 64).

Ground 26 of the motion alleges that the court erred in charging as follows: “The indictment charges that this defendant Cook and the other defendant Hirsch entered into a conspiracy, agreement, and plan and plot, and the purpose of that agreement was to charge Asa G. Candler Sr. with the offense of adultery, and in pursuance of that conspiracy they did charge him with the offense of adultery with Mrs. H. H. Hirsch; that the purpose of that accusation and threat to accuse of the crime of adultery was for the purpose of extorting money, or other thing of value from Asa G. Candler Sr.” While this is an incorrect statement of the wording of the indictment, yet as under the indictment as drawn it was permissible to prove a conspiracy, and one was shown, this was not such an error as would likely mislead the jury and is not of sufficient materiality to require á new trial. The jury could not have been misled by the words “or other thing of value,” in the statement that the indictment charges “that the purpose of that accusation and threat to accuse of the crime of adultery was for the purpose of extorting money or other thing of value [italics ours] from Asa. G. Candler Sr.;” for the evidence showed that the only thing demanded was money. “The charge of the court having, as a whole, properly submitted to the jury the controlling issues involved, under correct principles of law, the inaccuracy and immateriality which might exist in the portions excepted to can not work a reversal, where it appears that the jury could not reasonably have been mislead thereby.” Lazenby v. Citizens Bank, 20 Ga. App. 53 (92 S. E. 391).

Grounds 27 to 44 inclusive are based upon alleged errors in the charge. Some of these grounds are not argued, but when read in connection with the entire charge and in the light of all the evidence, there is no error in any of these extracts from the charge which would authorize the granting of a new trial. Even if the portions of the charge complained of in grounds 38 and 44 should not have been given, the proof shows so conclusively the fact of conspiracy that this inaccuracy does not authorize the grant of a new trial.

Upon the idea that ground 4-5 of the motion for a new trial raised a constitutional question, this case was transferred to the Supreme Court. The case was returned to this court, with an order as follows“This case was transmitted by,the Court of Appeals to this court on the ground that in their opinion the'case is one of which the Supreme Court has jurisdiction. After consideration it is held that the Court of Appeals and not this court has jurisdiction, and it is ordered that the case be retransferred to the Court of Appeals.” Under this ruling of the Supreme Court no constitutional question is raised by this ground of the motion.

The alleged newly discovered evidence of E. E. Lee, referred to in ground 46 can not in any sense be “newly discovered.” The ground of the motion itself shows that the facts stated therein were known by the defendant Cook prior to the trial. Indeed this alleged newly discovered evidence consists of conversations with the defendant, and acts and conduct of the'witness in the presence of the defendant prior to the trial.

As the evidence demanded the verdict rendered, the judgment. must be

Affirmed.

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


text:
    9793.
    Littlefield v. The State.
   Harwell, J.

1. The sale of intoxicating liquor in the State of Georgia is a misdemeanor. All who procure, counsel, command, aid, or abet the commission of a misdemeanor are regarded ‘ by the law as principal offenders, and may be indicted as such; and any one charged in an indictment with the sale of intoxicating liquors may be convicted by proof either that he directly and personally sold the liquor himself, or that he procured, counseled, commanded, aided, or abetted the sale of liquor by. another, who was the direct and immediate actor. Loeb v. State, 6 Ga. App. 23 (1), 26, 27 (64 S. E. 338).

2. The fact that on a trial upon an indictment for the sale of intoxicating liquor the jury returned a verdict finding “the defendant Paul Little-field guilty of aiding and assisting in the Sale of intoxicating whisky” did not render the conviction illegal, and afforded no ground for arresting the judgment. A general verdict of “guilty” would have been the technically correct form. Since, however, one who aids' and assists in selling intoxicating liquor may be found guilty as the principal offender under an indictment or accusation charging him with the sale,'the verdict in the instant case is simply a special verdict equivalent to a gen eral verdict of guilty, and is valid, and the court did not err in overruling the motion in arrest of judgment. See Dunbar v. State, 21 Ga. App. 502 ( 94 S. E. 587).

Decided November 1, 1918.

Motion to arrest judgment; from Whitfield superior court— Judge Tarver. April 10, 1918.

W. E. Mann, W. Gordon Mann, Glenn & House, for plaintiff in error, cited:

Penal Code (1910), § 1059; Couch v. State, 28 Ga. 367; O’Connell v. State, 55 Ga. 191; Ezzard v. State, 11 Ga. App. 30; Stephens v. State, 56 Ga. 605; Davis v. State, 13 Ga. App. 142, 143; Gaston v. State, 127 Ga. 51; Mills v. State, 11 Ga. App. 383; Lambert v. State, 17 Ga. App. 348; Wells v. State, 116 Ga. 87; Smith v. State, 117 Ga. 16 (2).

Joseph M. Lang, solicitor-general, contra, cited:

Arnold v. State, 51 Ga. 144; Wilson v. State, 62 Ga. 167; Davis v. State, supra.

Judgment affirmed.

Broyles, P. J., and Bloodworili, J., concur.


text:
    9792.
    Littlefield v. The State.
    Decided November 1, 1918.
    Indictment for sale of intoxicating liquor; from Whitfield superior court—Judge Tarver. April 10, 1918.

      W. E. Mann, Glenn & House, for plaintiff in error.

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

1. The defendant’s motion for a continuance on account of absent witnesses failing to conform to the statutory requirements (Penal Code (1910), § 987; Civil Code, § 5715), the court did not err in overruling the motion.

2. The evidence authorized the verdict, and the court did not err in overruling the motion for new trial. See, in this connection, Littlefield v. State (case No. 9793), ante, 782.

Judgment affirmed.

Broyles, P. J., and Bloodmorth, J., concur.


text:
    9794.
    Littlefield v. The State.
    Decided November 1, 1918.
   Harwell, J.

The evidence amply authorized .the defendant’s conviction of having and possessing intoxicating liquors, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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

Indictment for possession of intoxicating liquor; from Whitfield superior court—Judge Tarver. April 10, 1918.

W~ E. Mann, Olénn & House, for .plaintiff in error.

Joseph M. Lang, solicitor-general, contra.


text:
    9899.
    Biddy v. The State.
    Decided November 1, 1918.
    Indictment for violating prohibition law; from Cherokee superior court—Judge Morris. May 20, 1918.
    The instruction complained of was that “if the defendant knowingly had in his possession in Cherokee county any quantity of corn whisky, even a spoonful, since the approval of the prohibition act on March 28, 1917, he would be guilty under the law.”

      John B. Wood, Fred Morris, H. B. Moss, for plaintiff in error.

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

1. The excerpt from the charge of ^he court, complained of in the special ground of the motion for a new trial, was authorized by the undisputed evidence in the case; it was a correct statement of the law and was not erroneous for any reason assigned.

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

Judgment affirmed.

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


author: Broyles, P. J.

text:
    9927.
    BISHOP v. THE STATE.
    “The solicitor of a city court, before the trial of a criminal case and before the selection of a jury, can at any time amend the accusation as he may deem proper.” Conley y. State, 83 Ga. 496, 499 (10 S. E. 123) ; Goldsmith v. State, 2 Ga. App. 283, 286 (58 8. E. 486).

      (a) The solicitor- of a city court may amend an accusation at any time before the defendant therein has pleaded to the merits, provided the affidavit of the prosecutor will support the accusation as amended, unless such amendment is forbidden by the act creating the court. Goldsmith y. State, supra.
    Decided November 1, 1918.
    Accusation of assault and battery; from city court of Bainbridge—Judge Spooner. June 19, 1918.

      Hartsfield & Conger, for plaintiff in error.
   Broyles, P. J.

The affidavit and the accusation as originally drawn cbaiged “Cy” Bishop with having committed -the offense of assault and - battery. Upon the call of the case for trial and after both the State and the defendant had announced ready for trial, the solicitor erased from the accusation the name “Cy” and inserted in lieu thereof the name “Corry.” Likewise the officer before whom the affidavit (the basis’of the accusation) was made erased, in the presence of the prosecutor, the name “Cy” in the affidavit and inserted in lieu thereof the name “Corry.” These amendments were allowed by the trial judge over the objection of the accused that they could not be then'made'in that form and manner. The defendant then moved to quash the amended accusation, and this motion was overruled.

While the proper procedure would have been _for the judge to sign a formal order amending the affidavit and accusation, the slight irregularity in the form and method of the amendment in this case was not error. Especially is this true as no other conclusion can be -drawn from the pleadings than that “Cy” and “Corry” were one and the same person. “Cy” or “Corry” was present and defending, and the accusation as originally drawn was good, there being no plea of misnomer. • >

It is not shown that the defendant hud. pleaded to the merits of the case, but merely -that the case had been called for trial and that both sides had announced ready. Under these circumstances the court committed no error, either in allowing the amendment or thereafter in refusing to quash the accusation as amended.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur,


text:
    9939.
    McAdams v. The State.
   Harwell, J.

1. The alleged newly discovered evidence, the subject of the 4th special ground of the motion for a new trial, being cumulative and impeaching in its character, the court did not err in overruling that ground of the motion.

2. The point raised in the 5th and 6th grounds of the amendment to the motion for a new trial,—-that the evidence did not authorize the jury to find the defendant guilty of manufacturing liquor, but only authorized a finding of an “attempt to manufacture” such liquor, and that the court should have charged the jury on attempts to manufacture liquor,—is wholly without merit. See Geter v. State, 22 Ga. App. 264 (95 S. E. 877).

Decided November 1, 1918.

Indictment for felony; from Paulding superior court—Judge Bartlett. May 21, 1918.

G. B. McGarily, for plaintiff in error.

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

3. The evidence authorized the verdict, arid the court did not err in over- ■ ruling the motion for a new trial.

Judgment affirmed.

Broyles, P. J., and Bloodworili, J., concur.


text:
    9946.
    Adams v. The State.
    Decided November 1, 1918.
    Indictment for simple larceny; from Haralson superior court— Judge. Bartlett. June 10, 1918.
    The indictment charged larceny of. “one yellow heifer, horns standing about straight up, about two years old, being a female, and a young cow, of the ox species, . . of the value of fifteen dollars.” The grounds of the demurrer were: (1) The indictment is duplicitous; it charges in one and the same count that the animal alleged to have been stolen was a heifer, a young cow, and a male castrated of the ox species. (2) The description of the animal is so contradictory that the defendant is not put on notice as to whether he is charged with stealing a male or a female, a heifer, a young cow, or a young steer or ox. (3) The indictment charges the theft of one animal only, but the description is so contradictory that the defendant is not put on notice as to the charac-' ter of the animal. .

      M. '-J. Head, Griffith & Matthews, for plaintiff in error.

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

The court properly overruled the demurrer to the indictment. There is'no merit in the special ground of the motion for a new trial; and the defendant’s conviction was amply authorized by the evidence.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9961.
    Ward v. The State.
   Broyles, P. J.

1. All persons aiding, directly or indirectly, in the commission of a misdemeanor are guilty as principals. The maintaining of a lewd house is a misdemeanor. It follows that any person aiding, directly or indirectly, in the maintenance of a lewd house is guilty of that offense. Kessler v. State, 119 Ga. 301 (46 S. E. 408).

Decided November 1, 1918.

Accusation of misdemeanor; from city court of Floyd county— Judge Nunnally. June 25, 1918.

The accusation charged Leila Ward with maintaining a lewd house. The State’s witness testified that he peeped through a blind of the house of Miranda Ward, the mother of the defendant, with whom the defendant resided, and saw the defendant, in a room of the house, have sexual intercourse with three soldiers, each of whom came in turn- from an adjoining room. The only other facts in evidence were the venue and the time. The defendant, in her statement at the trial, said that the witness was mistaken as to seeing her in the room, that “he saw some one else,” that she was not guilty, that it was her mother’s house and she had nowhere else to go.

Citations from brief of,counsel:

Hogan v. State, 76 Ga. 82; Clifton v. State, 53 Ga. 241; Ponder v. State, 115 Ga. 831; Kessler v. State, 119 Ga. 301.

W. B. Mebane, for plaintiff in error. J. P. Kelly, solicitor, contra.

2. Under the ruling stated above and the facts of this ease, the conviction of the. defendant was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9962.
    Williamson v. The State.
    Decided November 1, 1918.
    Indictment for manufacture of intoxicating liquor; from Carroll superior court—Judge Terrell. June 3, 1918.

      Smith & Smith, for plaintiff in error.

      O. E. Boop, solicitor-general, contra.
   Bloodworth, J.

In this ease there was direct evidence to connect the ‘ defendant with the crime charged. “It is only where a case is wholly dependent upon the law of circumstantial evidence that the trial judge is required to give the law of circumstantial evidence.” The indictment being supported by direct as well as circumstantial evidence, it was not erroneous for the court to fail to charge the law of circumstantial evidence. Nobles v. State, 127 Ga. 212 (56 S. E. 125); Lockett v. State, 20 Ga. App. 180 (92 S. E. 948); Ponder v. State, 18 Ga. App. 703 (6), 704 (90 S. E. 365).

Judgment affirmed.

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


author: Broyles, P.- J.

text:
    9975.
    Cheek v. The State.
    Decided November 1, 1918.
    Accusation of assault and battery; from city court of Jefferson— Judge Mahaffey. March 12, 1918.

      E. C. Starlc, for plaintiff in error.

      8. J. Nix, solicitor, P. Cooley,' contra.
   Broyles, P.- J.

1. Under repeated rulings of this court and of the Supreme Court a special ground of a motion for a new trial must 'be complete within itself. It will not be considered when it is necessary to refer to other portions of the record to determine the question attempted to be raised by it. Under this ruling the 1st and 2d special grounds of the motion for a new trial can not be considered.

2. The excerpt from the charge of the court, complained of in- the 5tli ground of the amendment to the motion for a new trial, js not erroneous for any reason assigned therein.

3. There is no merit in the special ground of the motion for a new trial which asserts that “the jury did not want to find the defendant guilty, as the form of their verdict was, ‘We, the jury, -find the defendant guilty and recommend the mercy of the court,’ and this being a misdemeanor ease.”

4. The general exception to the entire charge of the court is too broad, since the whole charge was not erroneous.

5. The other special grounds of the motion for a new trial, not having been argued in the brief of counsel for the plaintiff in error, will not be considered. .Under repeated rulings of this court and of the Supreme Court the mere statement in the brief of counsel for the plaintiff in error that he relies upon all the grounds of his amended motion will not be considered as an argument, but such grounds will be treated as virtually abandoned.

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

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9988.
    Huff v. The State.
    Decided November 1, 1918.
    Indictment for burglary; from Bleckley superior court—Judge Graham. July 17, 1918.
   Broyles, P. J.

1. It does not appear that the trial judge abused his discretion in overruling the motion for a continuance based upon the absence of certain witnesses who did 'not reside in the county where the case was pending.

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

Judgment affirmed..

Bloodworth and Harwell, JJ., concu/r.

W. A. Dampier, for plaintiff in error.

W. A. Wooten, solicitor-general, contra.


text:
    9989.
    Jenkins v. The State.
    Decided November 1, 1918.
    Accusation, of violation of prohibition law; from city court of .Thomasville—Judge W. H. Hammond. July '8, 1918.

      J. M. Austin, for plaintiff in error.

      II. J. MacIntyre, solicitor, contra.
   Bloodworth, J.

This ease was tried by the judge without a jury. There is evidence to authorize the finding of guilty, and the judgment must be

Affirmed.

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


text:
    9991.
    Turner v. The State.
    Decided November 1, 1918.
    Accusation of misdemeanor; from city court of Thomasville— •Judge W. H. Hammond. July 13, 1918.

      Eldon L. Joiner, for plaintiff in error.

      H. J. MacIntyre, solicitor, contra.
   Broyles, P. J.

1. Under the facts disclosed by the record it does not appear that the trial judge abused his discretion in overruling the special ground of,the motion for a new trial which was based upon alleged newly discovered evidence.

2. There was some evidence which authorized the verdict, and, it having been approved by the trial judge, this court is without .authority to interfere. 1

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    10020.
    Cook v. The State.
   Bloodworth, J.

1. The demurrer,, to the plea of autrefois convict was properly sustained. In drawing the amendment to the accusation the' solicitor followed the one under consideration by this court in Hudgins v. State, 22 Ga. App. 242 (95 S. E. 875). Counsel for the plaintiff in error asked this court to overrule or modify the decision rendered in that ease, but, after a careful consideration of the ruling there made, this court is convinced that it should not be changed.

Decided November 1, 1918.

Accusation of misdemeanor; from city court of- LaGrange— Judge Moon. July 8, 1918.

1. The accusation charged J. F. Cook with “the offense of violating prohibition law, for that the said J. F. Cook,” in the county of Troup, “on the 9th day of May, 1918, did then and there unlawfully have, possess, and control alcoholic liquors," spirituous liquors, and whisky.” The defendant filed a plea of autrefois convict, from which it appeared that on May 36, 1917, he was convicted on an accusation charging him with “the offense of misdemeanor, for that the said J. F. Cook,” in the county of Troup, “on the 36th day of May, 1917, did then and there have in his possession, custody, and control alcoholic, spirituous, vinous, malt, and intoxicating liquors.” After the filing' of this plea the accusation and the affidavit on which it was based were amended “by adding thereto, after the word ‘whisky/ the\following: ‘After the 36th day of May, 1917, and on the 9th day of May, 1918, and at divers other times after the 36th day of May, 1917, and prior to the filing of the accusation in this case; and at no time before May 36, 1917, is this charge made.” The amendment was demurred to on the following grounds: (1) It is an effort to limit thé range of the evidence against the accused, contrary to law. (3) ■ The amendment comes too late, after the defendant has' filed his plea of former jeopardy. This, demurrer was overruled. The court sustained a-demurrer to the plea of autrefois convict and struck the plea. The defendant filed exceptions pendente lite to the rulings stated, and error is assigned thereon in the final bill of exceptions,

2. Grounds 5 and 6 and the two grounds numbered 7 relate to rulings on pleadings, and such rulings are not proper matter for grounds of a motion for a new trial. Lindsay v. State, 138 Ga. 818 (11), 824 (76 S. E. 369); Daniel v. State, 115 Ga. 205 (2) (41 S. E. 695); Spurlin v. Towns, 146 Ga. 420 (5) (91 S. E. 479); Brown v. Wilkes, 20 Ga. App. 92 (92 S. E. 553), and eases cited.

3. This court can not say that the trial judge abused his discretion in refusing to continue the case on the ground that the defendant was surprised by the amendment to the accusation.

4. The remarks of the solicitor, complained of in ground 8, were entirely legitimate, and the court did not err in refusing to declare a mistrial because of them.

5. There was no error in refusing to allow certain witnesses to testify that a third person, who had left the State, told- them that the liquor found on the premises of the defendant belonged to him. ^This was clearly objectionable as hearsay. See, in this connection, Burrage v. State, 21 Oct. App. 508 (94 S. E. 644).

6. Grounds 2, 3, and 4 of the amendment to the motion for a new trial can not be considered, because not approved by the trial judge.

7. There is some evidence to support the verdict, which has the approval of the trial judge.

Judgment affirmed.

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

2. Grounds 5, 6 and 7 of the motion for a new trial relate to the rulings stated above.

3. A motion for a continuance was made by the defendant, on the ground that he was surprised by the amendment to the accusation and was not prepared to go to trial on the charge made in the accusation as amended. The overruling of this motion is complained of in the motion for a new trial.

4. Ground 8 of the motion for a new trial is as follows: “Because the court, erred in overruling defendant’s motion to declare a mistrial, under the following circumstances, to wit: In his opening remarks to the jury and’before the introduction of evidence, "the solicitor stated to the jury that he expected to show that the defendant had in his possession, custody, and control alcoholic liquors, spirituous liquors, and whisky on the 9th day of May, 1918, and at various times before that date and the 26th of May, 1917, but not at any time before the 26th day of May, 1917, thereby referring [?], certainly by suggestion, that on or about the 25th day of, May, 1917, the defendant had been guilty of the same offense for which he was on trial in the instant case; said motion being then and there urged; and in reply thereto the court overruled and refused said motion, and at the time instructed the jury that he would not permit any evidence before the 26th day of May, 1917.”

E. A. Jones, Arthur Greer, for plaintiff in error.

L. L. Meadors, solicitor, contra.


author: Broyles, P. ,T.

text:
    10028.
    Iverson v. The State.
    Decided November 1, 1918.
   Broyles, P. ,T.

The evidence in this case, connecting the accused with the larceny of the. property changed, was purely circumstantial and was not sufficient to exclude every reasonable hypothesis save that of the defendant’s guilt. It follows that the court erred in overruling the motion for a new trial.

Judgment reversed.

Bloodworth and Harwell, JJ., concur.

Indictment for larceny from house.; from Stewart superior court —Judge Littlejohn. July 3, 1918.

It was testified that on the morning of January 19, 1918, the prosecutor missed from his crib thirteen bushels of Spanish ground-peas which were there when he locked the crib about sundown of the preceding day, and he went from there a short distance into the woods and saw the defendant cutting wood on a steep hillside, “where nobody ever went to get wood before,” and he found in a bush, about 31 steps from where the defendant was cutting wood, .thirteen bushels of groundpeas of the Spanish variety in five sacks, one of which belonged to the defendant. “There were no tracks of any kind around the groundpeas.” The defendant, in his statement at the trial, denied that the sack mentioned in the testimony belonged to him. He said that he spent the night of January 18 at the house of Jonas Morris Sr., and at the request of Jonas went the next morning to cut and haul wood. Witnesses for the defendant testified to the same effect.

T. T. James, G. T. Harrell, for plaintiff in error.

John A. Fort, solicitor-general, contra.


text:
    10039.
    Burnett v. The State.
    Decided November 1, 1918.
    Indictment for murder; from Randolph superior court—Judge Worrill. July 13, 1918. • .

      Hitarles W. Worrill, for plaintiff in error.

      B. T. Gastellow, solicitor-general, B. B. Arnold, contra.
   Broyles, P. J.

1. Under the facts of the ease the court did not err in failing to instruct the jury upon the law of involuntary manslaughter.

2. The verdict of voluntary manslaughter was authorized by the evidence.

3. The alleged newly discovered evidence is not of such a character as would probably produce a different verdict upon another trial.

4. The court'did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworih and Harwell, JJ., concur.


text:
    10049.
    Howard v. The State.
    Decided November 1, 1918.
    Indictment for possessing intoxicating liquor; from Emanuel superior court—Judge Hardeman. July 22, 1918.

      T. N. Brown, for plaintiff in error.

      Walter F. Gray, solicitor-general, contra.
   Broyles, P. J.

The motion for a new trial contained only the usual general grounds. There was some evidence which, while weak, authorized the defendant’s conviction, and, the verdict having been approved by the trial judge, this court is without authority to interfere.

Judgment affirmed.

Bloodkoorth and- Harwell, J.J., concur.


text:
    10061.
    GREEN v. THE STATE.
    1. When considered in connection with the entire charge of the eourt there is no material error in any of the instructions of which complaint is made in the motion for a new trial.
    2. If there was a theory of the case upon which the judge might have charged on involuntary manslaughter in the commission of a lawful act without due caution and circumspection, it was raised solely by the defendant’s statement at the trial. There was no request to charge on such a theory, and the judge did not err in failing to charge thereon. That part of the opinion in Warnach v. State, 3 Ga. App.- 590 (2), 595 (60 S. E. 288), relied upon by plaintiff in error, as authority requiring the judge in murder cases to charge on the various grades of homicide, upon a theory raised by the defendant’s statement only, was expressly declared, in Lott v. State, 18 Ga. App. 747 (3), 748 (90 S. B. 727), to be obiter, and not binding as authority. An examination of all the cases which apparently hold that it is the duty of the judge to charge on a theory raised only by the statement of the defendant will reveal the fact that there was in each ease, in addition to the statement, evidence authorizing the charge, or the attention of the court was expressly called to the statement and a request made in reference thereto.
    3. This case is controlled by the ease of Olonts v. State, 18 Ga. App. 707, (90 S. E.- 373), and the verdict of involuntary manslaughter in the commission of an unlawful act was proper.
    Decided November 1, 1918.
    Conviction of involuntary manslaughter; from Emanuel superior court—Judge Hardeman. July 26, 1918.

      Williams & Bradley, for plaintiff in error.

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

Jim Green was indicted for murder and was convicted of involuntary manslaughter in the commission of an unlawful act. The evidence shows that a few nights before the homicide the defendant’s grandfather, “Uncle Jim Green,” who owned the gun with which the deceased—Tom Love Hill—was killed, was aroused by his granddaughter, who stated “that there was somebody coming in the yard,” and he jumped up, grabbed ' the gun, and inserted a shell. When he made an examination of his premises he brought the gun back and put it down at the head of his bed, neglected to remove the shell, and probably left the gun cocked. It was his custom to keep the gun unloaded, and the defendant knew of this custom and did not know that the shell was left in the gun. It was in evidence that Emma Green was dead, and that at the- commitment trial she swore that' she was in the house when the deceased, the defendant, and one Will Walker went in the house, and that the deceased said, “Jim, let me see your gun,” and they went into the room, and, “it looked about the time they had time to walk to the gun the gun went off.” It was undisputed that several persons stopped at the home of “Uncle Jim Green,” where the defendant lived, and were eating mulberries; that the defendant took the hats of the boys and told them each one owed him a dime, and carried the hats away; that there .was no quarrel or any feeling between the defendant and the deceased, and that when the visitors were about to leave, Will Walker, the deceased, and the defendant went into the house to get the hats. As to what occurred in the house, Will Walker testified: “We went in the house to get the hats, Me and Love Hill [deceased] and Jim [defendant]. . . Love and Jim were not talking about a shotgun or whether it unbreaehed on .the side or on top. There hadn’t been- a word said about a gún. If that had been said I would have heard it. I swear positively it wasn’t said anything about that. Jim and Love went in the house all friendly; there was no words or trouble. And Jim picked up the gun and just pointed it at Love. . . He went in the house ahead of us, and he went right there and picked up the gun from behind the head of the bed, and he came out there laughing with it in his hand. The gun did not fire right then. . . Love said, ‘Don’t prank with the gun/ He says, ‘You want your hats, don’t you?’ And Love says, ‘Yes/ And he just up with the gun and shot him. This is the way he brought it up. He just brought it up this way and shot it. As to whether he brought it up to his shoulder, he just brougi t it up and shot it about along here (indicating to his side). He just brought it up like that. I didn’t see him pull the trigger, I couldn’t tell whether he pulled the trigger or not. When he brought it up to-his breast the gun fired. He walked out from the head of the bed with the gup. down, just this way, and laughed. He was laughing; and Love told him not to prank with him with the gun, and he says, ‘You want your hat, don’t you?’ And Love said, ‘Yes.’ And he just up with the gun that way and shot him. He was laughing all the time until it fired, I can’t be mistaken about that.”

The defendant, in his statement at "the trial, said: “I went in the house and picked up the gun. Me and him was talking about looking at the gun, and I picked up the gun and went to hand it to him, and the gun fired off, and he run out of the house at the back door and fell out the doorstep, and I run out behind him and jumped down on him to see- was he shot. And he run out under the mulberry tree, and I run down in the field where my grandpa was, and told him I had shot him-.”

It is not necessary to add anything further to what is said in the headnotes.

Judgment affirmed.

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