text:
    9414.
    McDANIEL v. BANK OF BETHLEHEM.
    The action was brought by the transferee of a note which contained the recital that it was one of a series given for the purchase-price of lands described in a bond for titles of even date therewith, .executed by the payees to the maker, and that if any one of the notes- should not be paid at maturity, then all of the series should become due and payable, it being expressly agreed that time was of the essence of the contract, and that if the particular note sued upon was not paid at maturity • (November 1, 1916), it should become rent for the said lands for the . year 1916. The plea of the defendant alleged that the transferee acquired the note with knowledge that the lands therein referred to had been previously sold to a third person, and it was therefore impossible for the payees to convey any title to said lands to the defendant. The defendant did not allege in his plea or amended plea that the'amount -of the note was not a fair and reasonable rental for the lands for the year named in the note, or was in excess of such legal damages for the breach of the contract for the sale of the land as could be actually computed, and that its denomination as rent was merely a device to obtain a legal penalty. Held, that the trial judge did not err in-holding that so far as the rent .consideration named in the note was concerned, and regardless of the precise notice the transferee had of the nature of the contract, no- sufficient' defense was interposed; and, the value of the cotton agreed to be paid being admitted, the judge did not err in directing a verdict in behalf of the -plaintiff for the full amount of his demand.
    Decided April 12, 1918.
    Complaint; from Barrow superior court—Judge Cobb; December 17, 1917.
    The Bank of Bethlehem brought suit against McDaniel as principal, and E. S. Harris and E. V. Harris as indorsers, on a note for 5,000 pounds of middling lint cotton of the alleged value of 19 cents per pound, dated January 27, 1913, and due November 1, 1916, payable by its terms to E. S. Harris and E. Y. Harris, and by them .indorsed to the plaintiff. The copy of the note attached to the petition contains the following recital: “This note is one of a series of notes for the purchase-money of lands described in bond for title executed this day by the payees, and it is hereby agreed that if any one of said notes should not he paid at maturity, or the interest on said notes, then all other notes of said series shall become due and payable, it being expressly agreed that time is the essence of this contract; and should this note not be paid at maturity, I agree that same shall become rent for said lands for the year 1916.” The indorsers entered no appearance, but McDaniel, the maker of the note, filed a plea, in which he made no distinct denial of the allegation as to the existence of the indebtedness claimed and the proper transfer of the note therein described, but merely set up that the paragraph containing these' allegations was “neither admitted or denied, for want of sufficient information of the transaction alleged.” -it was further alleged, in the original plea, that the note sued upon was one of a series given by the defendant McDaniel to E. S. and E. Y.'Harris in payment for certain land, as would appear from an examination of a bond for titles made tp said defendant by said E. S. and E. Y. Harris, a copy of which was attached to the plea. The defendant alleged also that he had paid to the Messrs. Harris, in compliance with the terms of the bond, 15 bales of cotton,—7 in the fall of 1913, and 8 in the fall of 1915,—and that the money value of the bales remaining unpaid, under the provisions' of the contract, was about $2,240, the full'value of the tract of land. He likewise alleged in this connection that at the time the bond for titles was made to him, E.. S. and E. Y. Harris had already made a deed to the Farmers Bank of Monroe, to secure an indebtedness of $2,234.82, due by them to that bank, by a deed dated April 15, 1912, and recorded on the same day—all, of which facts he did not discover until about the middle of October, 1916, about the time he received notice from the plaintiff that it held the note sued upon. Certain equitable prayers of the defendant need not be considered for the purposes of this case. The bond for titles referred to described the land and fixed the total price to be paid therefor at 23,000 pounds of middling lint cotton, or 46 bales of 500 pounds each, to be paid as follows: 10 bales on November 1, 1913; 10 bales on November 1, 1914; 10 on November 1, 1915; 10 on November 1, 1916, and 6.on November 1, 1917. The bond for titles contained the following, provision: "Time being the essence of this contract, it is agreed that if any of the notes listed below are not paid promptly at maturity, that'the holder thereof may at his option declare all of said notes due and proceed to collect the same, and treat the note during the year in 'which such default may be made as rent for that year.” By leave of the court and subject to objection by counsel for the plaintiff, the defendant amended his original plea on September 26, 1917, and specifically denied the allegations of indebtedness in the second paragraph of the plaintiff’s petition, referred to above.. In the second paragraph of this amendment the defendant alleged that the Bank of Bethlehem was not the transferee of the note sued on, for value, before due and without notice, “but that said paper was indorsed over to them [it] as security only to an indebtedness of the indorsers to plaintiffs, and defendant alleges that plaintiff bank had and now has ample other security for the- said indebtedness of said transferers and indorsers, without enforcing this note and security.” The third paragraph of the amendment set up distinctly that “at the time” the plaintiff acquired the note sued upon, the plaintiff “well knew that the tract of land for which said note was given as part purchase had aíready been deeded to the Farmers Bank of Monroe as security for other indebtedness of the transferees, and that they were not in position to make deeds to this defendant if said purchase-money note was paid, that the said deed was on record and gave notice, and they further had actual notice.” The fourth paragraph of the amendment to the plea alleged: that the Farmers Bank, which had acquired title to the tract of land, in part payment for which the note sued upon was given by the defendant, prior to the time that the plaintiff in this ease obtained the note sued upon, as alleged in the preceding paragraph aforesaid, had deeded the land in question to the Monroe Oil and Fertilizer Company, which company also held a debt against E. S. and E. V. Harris for a large amount, and that the Monroe Oil and Fertilizer Company sued their said claim to judgment, and “had the land 'levied [upon] and sold to pay their debt, that said Harrises allowed the same sold and did not protect their title to said property. All of this is and was well known to plaintiffs. In so far as same had transpired at the time they took the said paper, they are bound by such notice, and in equity and right should not have and recover judgment in this matter, but are in the same position as said Harrises would be. Wherefore this defendant alleges that, the consideration of said note sued upon has totally failed, and prays- that he be hence discharged without costs.”
    The court on oral motion struck the plea of the defendant as amended, and, it being admitted that 19 cents per pound was the market value of the cotton at the date of the maturity of the note, as alleged in the petition, thereupon directed a verdict in favor of the plaintiff, for the full amount claimed. Exceptions pendente lite to the striking of the plea and of the amendment to the plea were filed, and error is assigned thereon in the main bill of exceptions. A motion for a new trial was made on September 28, 1917, during the term of court and within 30 days of the rendition of the verdict and judgment. This motion was set for hearing in vacation, on November 3, 1917, but was by proper order continued to November 17, 1917, at which time the defendant offered an amendment to his motion for a new trial, which was duly allowed and filed on November 28, 1917. Likewise, on November 17, 1917, while the motion for a new trial was pending, the defendant offered another amendment to his plea, more precisely amplifying some of the allegations of fact previously made 'by him, and likewise alleging, for the first time, that the denomination of the consideration of the note sued upon as rent was a mere subterfuge to exact from the defendant a penalty for a failure to carry out his contract of purchase, and that, “should plaintiff be entitled to recover on the theory that they would be entitled to rent from defendant, this defendant says that the rent of said tract of land is capable of exact computation, and that 1,500 pounds of lint cotton was a reasonable rent for said tract of land for the year 1E>16, and that 5,000 pounds or 10 hales was excessive and was placed in said note as penalty and not as liquidated damages for breach of contract.” This amendment was rejected, and the order of the trial judge recites: “This amendment was offered in vacation on this day, when the motion for new trial came on to be heard, and the amendment is disallowed, for the reason that the right to amend terminated when the verdict was rendered.”
    The motion for a new trial was overruled, and error is assigned thereon in the bill of exceptions. • The motion contained, besides the general grounds, the two following grounds, which were added by amendment:
    “That the court erred in disallowing amendment to plea filed by this defendant at the September term, 1917, and in directing a verdict' in favor of plaintiff against this defendant. In disallowing said amended plea and directing a verdict as above set forth, the court held that said amended plea set .up no defense, for the reason that, should the .title not have been in B. S. and E. Y. Harris at the time, of the transferring the note sued upon to the Bank of Bethlehem, and while all of this might have been known to the Bank of Bethlehem at the time of said transfer, that inasmuch as said McDaniel was in possession of the land, and the notes stipulated that same should be paid as rent in event all payments were not made, that plaintiff was entitled to have judgment for the amount of said note as rent. Movant alleges that this was error, and that the question of the value of the rent should have been submitted to a jury, and that plaintiff was only entitled to recover the actual value of the rent of said land, and that the damage for the breach of contract to pay for land is accurately computable, and-a stipulation by which an amount in excess of such legal damages shall be paid or retained is not enforceable.”
    “That the court erred in directing a.verdict in fávor of plaintiff' against defendants for the amount of the notes sued upon, for the reason that the pleadings showed that the plaintiff was not a bona fide purchaser of the note, sued upon, before maturity and for value, without notice of any defect or equity, but said plaintiff had notice before the purchase of said note that same was for the purchase-money of a tract of land, and that prior to their purchase of said note from E. S. and E. Y. Harris they had parted with their title to said tract of land, and could not carry out the contract of sale of said land, for the purchase-price of which said note was given. In view of these facts'it was error to direct a verdict for the full amount of said note, for if plaintiff was entitled to recover at all on said note, it should have only been allowed to recover the actual amount of rent said tract was shown to be worth; and while said note stipulated in its face that same was to be treated as rent in event all payments were not promptly made, said stipulation was in fact only a means of undertaking to exact a forfeiture or penalty for a failure of defendant to make his payments on said land, and, being a forfeiture or penalty, is not enforceable by law.”

      IF. H. Quarlerman, Lewis G. Bussell, for plaintiff in error.

      B. L. Gox, contra.
   Wade, C. J.

(After stating the foregoing facts.) Counsel for the plaintiff in'error in his brief bled in this court “expressly abandons any and all allegations of error upon the disallowance of the amendment offered to the original answer on the 17th of November, 1917, the date on which the motion for new trial was heard.” .

It is insisted by the plaintiff in error that the original piea, with the amendment allowed, distinctly charged that the plaintiff was not a bona bde transferee for value and without notice, but that even in the event this court should hold/otherwise, the verdict directed was not authorized, and should be set aside under the general grounds of the motion for a new trial, inasmuch as the court had.before it (besides the agreement as to the value of cotton) only the original petition, including a copy of the note,' which, showed'that, the contract sued upon was primarily for the purchase of land, with an added provision or condition that in the event of failure to pay in accordance with the original .contract, the amount therein stipulated should become due as rent for .the year 1916; and even,if the statement of the presiding judge be taken into consideration (that although this amount could not be recovered as purchase-money, it could be recovered under the-rent stipulation), no legal evidence was introduced to show the value of the land for rent; and any amount fixed as such value by agreement and in advance of breach of the contract of purchase must be construed as a penalty and not1 enforceable; and the stipulated damages- for the breach of the contract for the sale of the land, being 'in the nature of a penalty, were not enforceable, and- the verdict was therefore contrary to law. ..

1. It is clear that the second paragraph of the amendment to the answer does not unqualifiedly allege that the Bank of Bethlehem was not the transferee of the note, for value, before due and without notice; and hence there was nothing in that paragraph to put the plaintiff on proof that the plaintiff was in fact a bona fide holder of the note without notice. The paragraph must be considered as a whole., and the allegation that the bank was not a bona fide holder of the note without notice, coupled with the further allegation, “but” that said paper was indorsed to the bank as security for an indebtedness due it by the indorsers, and the bank had ample other security for said debt without enforcing the note sued upon, amounts merely to an allegation, that the bank was not a bona fide transferee without notice, for the reason that, or because, the paper was held by it as collateral security only, etc. It is unnecessary to consider at length the allegation of this paragraph that the bank held this note as collateral and had other security sufficient to make safe the debt secured thereby. One.holding a negotiable instrument transferred as collateral security for a debt is as fully protected as if the holder had purchased the note outright. “The holder of a note as collateral security for a debt stands upon the same footing as the purchaser.” Civil Code of 1910, § 4289. It is true that the holder of a paper obtained as collateral security may recover only the amount of the debt secured, where the maker has a valid defense against the original payee, and in such case the transferee is entitled to stand upon a better footing than the original payee only pro tanto; but in the absence of proof to the contrary it will be presumed that the debt due the transferee and secured by the collateral paper he holds is • equal to or exceeds the amount of the security. See Hancock v. Empire Cotton Oil Co., 17 Ga. App. 170, 194, 195 (86 S. E. 434), and cases there cited. See also Morrison v. Citizens and Southern Bank, 19 Ga. App. 434 (4) (91 S. E. 509); Linderman v. Atkins, 143 Ga. 366 (3) (85 S. E. 101). In a suit by the holder of such a note “the presumption is that the secured debt is sufficient to consume the collateral, and the onus of pleading and proving a less amount and the maker’s equity against the' original payee is on the defendant.” Clydesdale Bank v. Blackshear Mfg. Co., 18 Ga. App. 515 (2) (89 S. E. 1051), and citations. No intimation is made in the second paragraph of the amendment to the plea, allowed subject to objection, or elsewhere in the original plea or the amended plea, that the debt due the plaintiff by E. S. and E. Y. Harris, and secured by the note sued upon, as well as by other collateral, was less in amount than the collateral note sought to be collected, and the fact that other collateral, which in the opinion of the defendant was sufficient to, protect the debt in part secured by this note, was held by the plaintiff, could not of course affect the right of the plaintiff to enforce the collection of this particular collateral security.

3. The third paragraph of the amendment to the answer sufficiently alleged that the plaintiff acquired the note sued upon with notice that it had been given as a part of the purchase-price of a tract of land previously deeded by the payees to an outside person, and that therefore the payees could not make and execute a good deed of conveyance to the defendant, even if this and the remaining purchase-money notes should be paid. The further statements in paragraph 4 of the said amendment, to the effect that the party holding the outstanding title to the land had levied upon and sold the same, and that of this the plaintiff had knowledge, “in so far as same had transpired” at the time it acquired the note, were not essential to complete the averments in the paragraph 3 of the plea, and did not modify the distinct statement therein that “at the time said plaintiff acquired said note sued upon, said plaintiff well knew” that the tract of land had already been deeded to the Farmers Bank of Monroe as security, etc. It must be inferred, from reading the amendment to the plea as a whole, and in the absence of any special demurrer, that a general allegation of notice on the part of the Bank of Bethlehem at the time it acquired the note, to the éffect that the land for which it was given in part payment had already been deeded to an outside person, and therefore the consideration had to that extent failed, was sufficiently set out. It is apparent, therefore, that if the sole consideration named in the note had been the land described in the bond for titles attached to the plea and which is referred to in the note, it would have been error to strike the plea as amended. The note, however, recited another and different consideration, since it provided distinctly that in the event any one of the series should not be paid at maturity, then all the other notes of the series should become due and payable, time being of the essence of the contract; “and should this note not be paid at maturity, I agree that same shall become rent for the lands for the year 1916.” The learned trial judge (as appears from the' fourth ground of the fnotion for a new trial, which is set forth in the statement of facts), in striking the amended plea and directing a verdict against the defendant, held that the plea as amended set up no defense, for the reason that, even if the title to the land was not in E. S. and E. Y. Harris at the time the note sued upon was transferred to the Bank of Bethlehem, and all this was known by the Bank of Bethlehem at the time of the transfer, “inasmuch as said McDaniel was in possession of the .land and the note stipulated that same should be paid as rent in the event all payments were not paid, . . plaintiff was entitled to have judgment for the amount of said note as rent.” It is insisted in this ground of the motion that the question as to the value of the rent should have been submitted to the jury, and that the plaintiff was only entitled to recover the actual value of the rent of the land, and the damages for the breach of the contract to pay for the land were accurately computable, and the stipulation by which an amount in excess of such legal damages should be paid or retained was not enforceable. The defendant, however, interposed no plea alleging that 5,000 pounds of middling lint cotton was such an exorbitant yearly rental for the lands described in the bond for titles and referred to in the note as would amount to a penalty for the breach of the contract of purchase.

This court can not determine, as a matter of law, nor could the trial court reach the conclusion, from anything appearing in the record, that the amount stipulated in the note to be paid as rent for the year 1916, -in the event that any of the series of notes given for the'purchase-price of the land was not paid at maturity, was greater than the actual value of the rent of that land for the year 1916, or was so far in excess of actual legal damages, capable of accurate computation, for the breach of the contract to pay for the land, as to amount to .a penalty for such breach. There is nothing in Lytle v. Scottish American Mortgage Co., 122 Ga. 458 (50 S. E. 402), and the various cases therein referred to, in conflict with this holding. As was said in that case (p. 466): “Equity will not force parties to litigate, nor will it prevent them from entering into agreements to avoid litigation. Civil Code [of 1895], § 3935 [Civil Code of 1910, § 4532], There is no reason, therefore, why they may not agree in advance upon damages to be paid in the event of a breach, or upon an amount to be paid for rent on rescission of a contract of sale. . . Whether such an agreement can be enforced will depend, however, among other things, on the question as to whether the rent was liquidated damagés, or so unreasonable as to come within the prohibition against penalties and forfeitures.” . It would seem that a rental of 10 bales of cotton for one year, when the total agreed purchase-price amounted only to 46 bales, payable in the course of 5 years, would be unreasonable' -and excessive, but, for aught that appears in the, record, this may not be .the case, and, to the contrary, the value of the property in question may have increased so greatly, since the making of the contract, or may have actually been so much greater at the time the contract was made than the purchase-price therein agreed upon, that 10-bales, would in fact be only a moderate and reasonable rent for 1916, especially as the price of cotton may have greatly changed during the period, and it appears from the recitals in the fourth ground of the motion for a new trial that the defendant was actually in possession of the property during that period.' According to the plea as amended, the bank clearly had notice that the land had been sold to another person before it acquired this one of the purchase-money notes given therefor by the defendant, but, so far as is disclosed by any statement in the plea, the bank then also knew that the defendant was in possession of the land in question, and that in the event he defaulted in the payment of this note, he would be liable, under its terms, for its full amount, as rent for the year 1916; and believing that this was a fair and reasonable rent for the property, he nevertheless accepted the same.

The plaintiff in error himself evidently recognized the necessity for showing that the consideration of the note (Regarded as a rental contract) had failed in part at least, inasmuch as the amount thereof was in excess of a reasonable rental of the property, if he expected to defeat its recovery in the hands of the bank, notwithstanding the bank had received the note with notice of the previous transfer of the property to an outside person, by attempting, during the pendency of the motion for. a new trial, to file an amendment to his plea, in which amendment he alleged distinctly that a reasonable rental for the premises for one year would amount to only 1,500 pounds of cotton, instead of 5,000 pounds. The trial judge was, of course, confined to what whs in fact pleaded before the rendition of the judgment and at the time he struck the pleas as setting up no sufficient defense to the suit. Whether or not the rent stipulated for in the note was in fact excessive or was reasonable, and whether or not the defendant by a timely plea could have set up a valid defense against the demand of the plaintiff, cquld not be considered by the trial judge, nor can it be considered by this court. We of course recognize the principles referred to by learned counsel for the plaintiff in error, which are so clearly elucidated in Lytle v. Scottish American Co., supra, and realize that while a valid written contract may not ordinarily be contradicted or varied by parol,,it.is competent to show by such evidence that the writing is in fact “but a cover for usury, penalty, or forfeiture;” and that what was denominated rent in the note sued upon may in fact have been a part of the purchase-money or a device to obtain a penalty, and that the damages for the breach of contracts for the sale of land are capable of exact computation, “and a stipulation by which an amount in excess of such legal damages shall be paid or retained is not enforceable.” Nevertheless, in the absence of any plea even', suggesting that what is denominated “rent” in the note sued upon was an unreasonable amount as rent for the premises in question, or was so denominated merely as a device to obtain an unlawful penalty in excess of proper and legal damages for the breach of the contract, the trial court could not properly inject such an issue into the ease; nor can this court read into the record an issue of that character merely on surmise or supposition, and without any sufficient basis therefor in the record before us.

We must, therefore, hold that the, trial judge did not err in striking, on oral objection, the plea as amended, and in thereafter directing a verdict, since the plea set up no defense whatever to the collection of the amount claimed by the plaintiff, which, notwithstanding the previous sale of the land by the original payees of the note, wa's, so far as the record discloses, a fair and reasonable- price for its rental during .the year 1916, and was so recoverable.

Judgment affirmed.

Jenlcins and Luke, JJ., concur.


source: Caselaw Access Project

author: Wade, C. J. Per Curiam.

license: Public Domain

text:
    9425.
    WILSON v. SWORDS.
    The trial judge did not err in directing the verdict; and it was not error to overrule the certiorari.
    Decided April 12, 1918.
    Certiorari; from Fulton superior court—Judge Pendleton. November 19, 1917.'

      George B. Bush, for plaintiff. Burress & Dillard, for defendant.
   Wade, C. J.

Wilson brought bail-trover against Swords for two automobile tires. Swords surrendered the tires to the officer, who took charge bf and retained them and was in possession thereof at the time the case came to trial. -After the plaintiff had introduced evidence and rested his. case, a motion for nonsuit was made; and thereupon the suit was voluntarily dismissed by the plaintiff, and the court, on motion of the defendant, then directed a verdict in his favor and against the plaintiff for the sum of $30, the proved value of the property as shown in the petition and by the evidence for the plaintiff.

“Where, in such a proceeding, the plaintiff has given no replevy bond, and the defendant has delivered property into the hands of the sheriff, and has been thus deprived of its use and possession until the trial of the trover suit, and the plaintiff fails in his suit or voluntarily dismisses it, the defendant is not driven to the necessity of suing the plaintiff, to recover the damages which may have accrued to him from having been deprived of the use and possession of his property at the instance of the plaintiff, but is entitled in that proceeding to have either a writ of restitution for the property and its hire, or a fieri facias, if he so elects, for its value.” Underwood Typewriter Co. v. Veal, 12 Ga. App. 11 (76 S. E. 645). Under the ruling in the case just cited, the trial judge did not err in directing the verdict; nor did the judge of the superior court err in overruling the certiorari.

\ Judgment affirmed.

Jenkins and Luke, JJ., concur.

ON MOTION FOR REHEARING.

Per Curiam.

In the motion foi a rehearing it is insisted that the decision in Underwood Typewriter Co. v. Veal (supra) is not authority for the ruling made in the instant case, since the sole point at issue under the facts stated in that case was whether the defendant was entitled to a money verdict for the hire of a typewriter during the time it was in the possession of the sheriff, $.nd the question whether a money verdict for the value of the machine might be rendered in such a proceeding and under the circumstances stated was'not before the court; and consequently the statement made in the opinion in that case that the defendant in such an action and under the circumstances stated would be entitled “to have either a writ, of restitution for the property and its hire, or a fieri facias, if he so elects, for its value,” was altogether obiter so far as the reference therein to the right of the deféndant to recover the value of the property was concerned. Kegardless of whether the ruling in Underwood Typewriter Co. v. Veal, was obiter, so far as it related to a recovery by -the defendant of the value of property involved in the trover action, it is enough to say that this court concluded that the ruling máde in the case referred to was-correct, and adopted it as the law1 of this case, in which the point is directly involved. While it is important and helpful to have authority for rulings adopted by this court, it is within its power to make precedents, where there is none to the contrary in any decision of the Supreme Court of this State; and the absence of any controlling precedent from that court or this court will not prevent the adoption of obiter rulings which appear to us to be legally sound.

Rehearing denied.


author: Wade, C. J.

text:
    9428.
    Loehr v. City of Atlanta.
    Decided April 12, 1918.
    Action for damages; from city court of Atlanta—Judge Eeid. September 13, 1917.

      Reynolds & Whitman, for plaintiff.

      J. L. Mayson, 8. D. Hewlett, for defendant.
   Wade, C. J.

The evidence did not sustain the allegations of negligence on account of which a recovery was sought; and therefore the court did not err in awarding a nonsuit.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9434.
    Harrell et al. v. Kutz & Company et al.

   Wade, C. J.

This was an equitable proceeding instituted against Frank Short and Julia Short, a partnership doing business under the firm name of “Short & Company,” and also against “Short & Company” as a corporation. A receiver was appointed, and was subsequently discharged, and the court passed an order returning the property to the defendants upon the condition that they execute and “file with the clerk of the superior court a bond, with security approved by the clerk of said court, payable to the plaintiffs, and conditioned for the payment of such judgment' and cost as the plaintiffs or any of them may recover in said case.” 'A bond was executed in compliance witli this order. An auditor appointed in the case reported to the effect that the filing of the bond converted the equitable proceeding into a common-law suit, and recommended judgment against the defendants. The trial court entered judgment confirming the auditor’s report, and an execution was duly issued and levied, whereupon defendants filed an affidavit of illegality, which sought to go behind the judgment for various reasons stated. Only two of the grounds are insisted upon in the brief of counsel for the plaintiff in error,—that the bond entered into by the defendants and their sureties was not in the nature of a bond for eventual condemnation money, and therefore, under the provisions of the Civil Code (1910), § 3550, it was necessary to bring suit on the bond in order to subject the bondsmen; and that, under the provisions of the Civil Code (1910), § 3544, the sureties on the bond could not be held liable, since the plaintiffs agreed, at .the time of entering up judgment, that they would not levy the execution for several months, and this agreement tended to increase the risk of the sureties. Held:

Decided April 12, 1918.

Affidavit of illegality of execution; from Colquitt superior court' —Judge Thomas. October 10, 1917.

W. A. Covington, for plaintiffs in error.

Partner & Gibson, contra.

1. “An agreement by a creditor with the principal debtor, made after the debt, has become due and without the surety’s consent, to forbear the collection of the debt for a definite period, if without consideration, does not discharge the surety. A promise by the principal debtor to pay interest upon the debt during the time of forbearance forms no eon-‘ sideration for such forbearance, when the debtor is already bound to pay such interest.”' Tatum v. Morgan, 108 Ga. 336 (33 S. E. 940), See also Crawford v. Gaulden, 33 Ga. 173 (3, 4, 5); Bonner v. Nelson, 57 Ga. 433; Williams v. Kennedy, 134 Ga. 339. (3) (67 S. E. 821)., The. alleged agreement in- this case' was not in writing, and no consideration is alleged to have been paid by the defendants to the plaintiff for such extension of time.

2. Eventual condemnation money is that which is recovered in the identical case in which the appeal is taken. Planters’ Bank v. Hudgins, 84 Ga. 110 (10 S. E. 501). “It is the amount fixed and settled by the judgment or decree of the court in the case.” Scott v. Allen, 36 Ga. 498; Jordan v. Callaway, 138 Ga. 209, 211 (75 S. E. 101), See also Lookwood v. Saffold, 1 Ga. 72. The bond given by the defendants in the instant case was for the payment of the judgments which may be rendered in the case, and will therefore be treated as a bond for the "eventual condemnation money.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


author: Luke, J.

text:
    9598.
    Lee v. Central of Georgia Railway Co. et al.

    Decided April 12, 1918.
    Action for damages; .from city court of Savannah—Judge Freeman. February 9,' 1918.

      Osborne, Lawrence & Abrahams, for plaintiff.

      Lawton & Cunningham, H. W. Johnson, for defendant.
   Luke, J.

The judgment of the trial court being in exact accordance with the decision in this ease when it was formerly here for adjudication . (Lee v. Central of Georgia Ry. Co., 21 Ga. App. 558, 94 S. E. 888), the questions presented by the present bill of exceptions are res adjudieata. The judgment must therefore be

Affirmed.

Wade, C. J., and Jenlcins, J., concur.-


author: Bloodworth, J.

text:
    9320.
    BANK OF CUMMING v. BRUCE.
    “Where a negotiable promissory note, due [at some fixed date in the future], and indorsed by the payee in blank, is put in suit by a third person, the production of the note by the plaintiff at the trial is prima facie evidence that he acquired it for value before maturity, and without notice of any fact going to defeat its collection. As against him, payment made to the payee will not be a defense, without showing that . the payee had possession of the note at the time, or was then the owner .of it, or for some other reason had a right to receive the money.”
    Decided April 12, 1918.
    Certiorari; from Cherokee superior court—Judge Morris. October 13, 1917.

      H. L. Patterson, for plaintiff.
   Bloodworth, J.

The Bank of Cumming brought suit in a justice’s court against R. B. Bruce, on a note signed by him, dated December 3, 1911, due October 15, .1913, and payable to O. L. & M. G. Lummus, indorsed "O. L. & M. ,G. Lummus,” and having on it a credit of $30, dated December, 1913. The defendant denied liability and pleaded payment. On the trial before a jury in the justice’s court the assistant cashier of the bank testified: "The Bank of Cumming purchased that note [the note sbed on] from O. L. & M. G. Lummus, on January 3, 1913, and has had title-to that note since that time.” He further testified that the credit of $30 was entered thereon in his handwriting, but he could not swear who-paid the money to him; that the balance had- never been paid and was still due the bank. He testified also: "I can not say that he [M. G. Lummus] did or did not have it [the note sued on] after it became the property of the bank, but I do not think so. If Lummus had the note in his possession-he stole it.” The note was introduced in evidence by the plaintiff. The defendant swore that he paid to ML G. Lummus, one of the firm of O. L. & M. G. Lummus, $20 on note sued on; that at that time M. G. Lummus had the note in his possession, and placed the credit for the $20 thereon. He testified further: “I paid the balance due on the note to M. G. Lummus on July 13, 1913, and have a receipt for it. I paid him at Cumming, Ga., and he told me at the time that he had left the note at home in his bill-book,-that he had forgotten it that morning, but would give me a receipt for the money and send me the note the next day. I paid him in a mule, and there was a balance coming to.me, and he gave me a check for it. [Here counsel for defendant exhibited to him receipt as follows: “Received of R. B. Bruce $49.00, for one black horse mule, known as the Jess Bruce mule. July 13, 1913. O. L. & M. G. Lummus.”] That is'the receipt he gave me in full for the balance due on the note. I do not owe O. L. & M. G. Lummus or the bank anything on the note. I do not know anything about how the Bank.of Cumming got title to the note or when they got it.” Wess Lummus swore: “I was present when Burton Bruce paid ML G. Mullus [Lummus] $20 on the note in controversy in December, 1912. ML G. Lummus had the note in his possession at that time. I saw the note and saw Lummus credit the $20 on the note.”

The jury rendered a verdict for the defendant. The case came to this court on exceptions to the overruling of a certiorari.

It is not disputed, but is clearly shown, "that the bank purchased the note sued on for value and before maturity, and has never parted with title to it, and the only payment ever made to the bank was the $20 credited on the note in December, 1912. At the time of the trial the bank was in possession of the note. “The holder of a note is presumed to be such bona fide and for value.” Civil Code (1910), § 4288. “Where a negotiable promissory note, due sixty days after date, and indorsed by the payee in blank, is put in suit by a -third person, the production of the note by the plaintiff at the trial is prima facie evidence that he acquired it for value before maturity, and without notice of any fact going to defeat its collection. As against him, payment made to the payee will not be a defense without showing that the payee had possession of the note at the time, or was then the owner of it, or for some other reason had a right to receive the money.” Paris v. Moe, 60 Ga. 90 (1); Perry v. Bray, 68 Ga. 293; Rhodes v. Beall, 73 Ga. 641 (1), 642; Bank of the University v. Tuck, 101 Ga. 104 (28 S. E. 168); Walters v. Palmer, 110 Ga. 776 (2), 779 (36 S. E. 79); American Agricultural Chemical Co. v. Graham, 9 Ga. App. 479 (71 S. E. 761); McDonald v. Horton, 20 Ga. App. 489 (93 S. E. 110). It not being shown that M. G. Lnmmus individually or for his firm had the right to collect the note, or owned or had possession of it, at the time the maker claimed to have paid it, a payment made to him is not a good defense to the note. The trial judge therefore erred in overruling the certiorari.

Judgment reversed.

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


text:
    9332.
    Goode v. Powell.
    Decided April 12, 1918.
    Certiorari; from Pulton superior court—Judge Bell. October 15, 1917.

      Munday & Cornwell, for plaintiff in error.

      James B. Warren, contra.
   Bloodworth, J.

1. It is never reversible error for a judge to refuse to direet a verdict. Stewart v. Attaway, 18 Ga. App, 158 (88 S. E. 992); Cunningham, v. Waters, 142 Ga. 115 (82 S. E. 518).

2. No complaint is made of any ruling on the admission or rejection of evidence, and no error in the charge is alleged. The jury passed upoh the facts; the judge presiding in the superior court overruled the certiorari and thjs court will not interfere.

Judgment affirmed.

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


author: Broyles, P. J.

text:
    9589.
    Poulos v. The State.
    Decided April 12, 1918.
   Broyles, P. J.

1. There is no merit in that ground of the motion for a new trial which alleges that “the venue was not proved or the offense shown to have been committed within the statute of limitations.”

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

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.

Accusation, of misdemeanor; from city court of Savannah— Judge Rourke. February 2, 1918.

Shelby Myriclc, for plaintiff in error.

Walter 0. Ilartridge, solicitor-general, contra.


text:
    9600.
    Whitfield v. The State.
    Decided April 12, 1918.
    'Indictment for burglary; from Laurens superior court—Judge Kent February 4, 1918.

      W. A. Dampler, for plaintiff in error.

      'K. L. Stephens, solicitor-general, contra.
   Broyles, P. J.

The bill of exceptions containing no assignment of error whatever, the writ of error is

Dismissed.

Bloodworlh and Harwell, JJ., coneur.


text:
    9074.
    Cieucevich v. The State.
    Decided May 1, 1918.
    Petition for certiorari; from Chatham superior court—Judge MeMri-m. June 11, 1917. . ,r
   Broyles, P. J.

1. The writ of certiorari lies from a judgment of the city court of Savannah overruling a motion for a new trial in a misdemeanor case tried therein.

2. The chief judge of the municipal court of Savannah, who is ex-officio judge of the city court of Savannah, under the act of the General Assembly amending the constitution of the State and creating the municipal court of Savannah, approved August 13, 1915 (Acts 1915, p. 124), and the further act of 1915 (Acts 1915, p. 122), is authorized to draw a panel of jurors and swear them in for the trial of a criminal case in which he as ex-officio judge of the city court is to preside; and such ' duty does not devolve solely upon the regular judge of the city court.

3. In answer to certified questions by this court the Supreme Court made the rulings just stated. 147 Ga. 816 (95 S. E. 670). Under the second of these rulings the trial judge did not err-in overruling the defendant’s challenge to the panel of jurors put upon him.

4. The assignments of error other than those dealt with above are expressly .abandoned in the brief of counsel for the plaintiff in error.

5. The judge, of the superior court did not err in refusing to sartctiop the certiorari.

■Judgment affirmed.

Bloodworih and Harwell, ‘JJ., concur.

Osborne, Lawrence & Abrahams, for plaintiff in. error.

Walter 0. Hartridge, solicitor-general, contra.


author: Bloodwobth, J.

text:
    9264.
    McLeod v. The State.
    Decided May 1, 1918.
    Accusation of misdemeanor; from city court of Savannah— Judge Kourke. October 3, 1917.
   Bloodwobth, J.

1. Under the opinion of the Supreme Court in answer to certified questions in the ease of Cieucevich v. State, 147 Ga. 816 (95 S. E. 670), the trial judge did not err in overruling the challenge to the array of jurors. See also 22 Ga. App. 240 (95 S. E. 933).

2. When read in connection with the entire charge of the court, no error warranting a new trial appears in the excerpts of which complaint is made.

3. Under the explanatory note of the trial judge, no error was committed in refusing to allow the witnesses to testify as complained of in grounds . 4 to 15 of the amendment to the motion for a new trial.

4. The motion for a new trial complains that “the sentence is excessive,” and that “the court'in sentencing the defendant did not exercise his legal discretion.” “Objection that a sentence imposed in a criminal case is for any reason illegal or irregular can not be made the ground of a motion for a new trial.” Elzie v. State, 21 Ga. App. 501 (94 S. E. 627). And see Weldon v. State, 21 Ga. App. 332 (9) (94 S. E. 327).

5. It is complained that the solicitor-general used “improper language” and “improper argument” in his speech to the jury, and that upon motion .promptly made the court declined to declare a mistrial. The parts of the argument complained of are proper and legitimate “inferences and deductions from the facts.” “All reasonable latitude should be allowed attorneys in their arguments to the jury on the facts, and on inferences and deductions from the facts.” Martin v. State, 5 Ga. App. 606 (2) (63 S. E. 605); Walker v. State, 5 Ga. App. 367 (63 S. E. 142). “ Flights of oratory and false logic do not call for mistrials, or rebuke. It is the introduction of facts not in evidence that requires the application of such remedies.” Patterson v. State, 124 Ga. 408 (52 S. E. 534); Western & Atlantic R. Co. v. York 128 Ga. 687 (2) (58 S. E. 183). Civil Code (1910), § 4957. Besides, the evidence demanded the verdict rendered. Moore v. State, 10 Ga. App. 805 (2) (74 S. E. 315).

6. Before it will be held the trial judge erred in refusing a request to charge to the jury on a stated subject, it must appear that a proper request was made in writing and presented to the judge before the jury retired “to consider of - their yerdiet.” Penal Code (1910), § 1087; Civil Code (1910), § 6084. It does not so appear in the 20th ground of the amendment to the motion for new trial in this case.

Judgment affirmed.

Broyles, P-. J., and Harwell, J., ooncur.

Osborne, Lawrence & Abrahams, for plaintiff in error.

Walter 0. Hartridge, solicitor-general, contra.


text:
    9248.
    HUDGINS v. THE STATE.
    1. A motion to dismiss the writ of error from the refusal of a new trial in a criminal ease, upon the ground that (under allegations of fact set forth in the motion) the trial judge was without legal authbrity to approve the brief of evidence at the time of hearing the motion for new trial, is not sustainable.
    2. Under the accusation as amended, the State could not legally introduce evidence relating to a transaction on which the accused had previously been tried under an indictment for a like offense, the dates alleged in the accusation being after the time when the indictment was returned; and the plea of former conviction was properly stricken.
    Decided May 1, 1918.
    Accusation of selling intoxicating liquor; from city court of Hall ^county—Judge Wheeler. September 26, 1917.

      W. B. Sloan, Boyd Sloan, for plaintiff in error.

      Hammond Johnson, solicitor, contra.
   Bloodworth, J.

The motion to dismiss the writ of error is without merit. “The Court of Appeals is without jurisdiction to consider the grounds of a motion to dismiss a bill of exceptions in a criminal case which is predicated upon alleged errors of the trial judge antecedent to its final decision upon a motion for new trial, (a) The adjudication of alleged errors in a criminal case, .adverse to the State, would be, in effect, the consideration of a cross-bill i óf exceptions, which the State is not permitted to file. (b) Such errors can not properly be reviewed by a motion to dismiss, for the reason that such a motion must be addressed to some defect in form or procedure, inherent in the bill of exceptions itself, and relates .back no further than the inception of 'the proceedings to obtain a writ of error, to wit, the presentation of a bill of exceptions.” Bryan v. State, 3 Ga. App. 26 (59 S. E. 185).

Where one is placed on trial on a presentment by the grand jury, charging him with the offense of selling spirituous and intoxicating liquors, without charging any particular person to whom such sale was made, or specifying any particular occasion on which it took place, the accused is thereby placed in jeopardy for unlawfully selling such liquors to any person within the period of the statute of limitations. It follows that when the accused has pleaded guilty of the offense charged, and, within two years from the date of the return of the former indictment, is again placed on trial on an accusation in a city court, charging the same offense in substantially, the same language, and naming a day as the time of the offense, it would be error for the court on general demurrer to strike a plea of autrefois convict based upon these facts. Craig v. State, 108 Ga. 776 (2) (33 S. E. 653); Well v. State, 13 Ga. App. 733 (80 S. E. 14); Sable v. State, 14 Ga. App. 816 (1), 818 (82 S. E. 379). However, an entirely different question is presented where the accusation, as in the instant case, after amendment, names a date and alleges a sale of liquor on said date and “p,t divers other times between” said date and another date, both of which are subsequent to the time when the indictment was returned. These allegations specifically limit the time during which proof of the crime can be shown, and the accused is put on notice that no attempt will be made to prove a sale prior to the date of the return of the indictment, nor one prior to the earliest date named in the accusation. The amendment was offered for the purpose of limiting the charge to sales of liquor accruing since the finding of the indictment' to which he had pleaded guilty, and the amended accusation was so construed by the trial judge. In the case of Salle v. State, supra, Chief Judge Eussell said: “As pointed out in the Well case [supra], it is very plain that a defendant is legally in jeopardy for an offense for which he has been previously tried and convicted or acquitted, when the range of the evidence against him, under the second accusation, might -legally include the same transaction for which he has previously been subjected to trial. If the plaintiff in error had filed a plea of former jeopardy, the present accusation should have been quashed, and the time of the offense should have been confined in such specific terms as would have restricted the proof to a transaction subsequent to the filing of the prior accusation. In other words, the second accusation should not only have alleged, pro forma, the day upon which the offense was committed, so as to show that the offense was not barred by the statute of limitations, but should also have stated unequivocally that the offense charged in the pending accusation was subsequent to May 12, 1913. However, we know of no means, other than an appropriate plea of former jeopardy, by which the point can be raised and the limitation be placed upon the power of the State to include within the range of its evidence any violation of the law not barred by the statute of limitations. In the Webb case, supra, we held specifically that it was not within the power of the court to substitute a limitation imposed upon the range of evidence by the court ex mero motu for the rights belonging to the defendant under a timely plea of former jeopardy.” See’ also the dissenting opinion of Chief Judge Hill in the Webb case, supra. We therefore hold, that, under the accusation in this case, as amended, the State could not legally introduce evidence that would include a transaction for which the accused had been previously tried, and that the plea of former conviction was properly stricken.

The evidence supported the verdict, and the trial judge properly refused a new trial.

Judgment affirmed.

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


author: Bloodworth, J. Harwell, J.,

text:
    9305.
    PARKS v. CITY OF ATLANTA.
    With the petition for certiorari to review a judgment of conviction of violating a municipal ordinance no pauper affidavit was filed; and no copy of the bond required by law was incorporated in the petition, nor was a certified copy attached. An alleged copy of a bond attached to the petition was not identified, nor did it appear from the petition that the bond was accepted and' approved by the clerk of the trial court, nor was there a certificate from that clerk that the bond was filed with and .accepted and approved by him. Held, no error in dimissing the certiorari on motion.
    Harwell, J., dissenting. While the copy of bond (in proper form, payable to the municipality, and approved by the clerk of the trial court) was not marked Exhibit C, as stated in the petition for certiorari, it 'was therein referred to as being attached, and was formally made a part of the petition. The copy having thus been identified, the petition affirmatively showed that the petitioner had filed a bond as required by the statute.
    Decided May 1, 1918.
    Certiorari; from Fulton superior court—Judge Bell. October 10, 1917.

      Ralph McClelland, for plaintiff in error.

      J. L. Mayson, S. D. Hewlett, contra.
   Bloodworth, J.

A petition for certiorari to review a judgment of the recorder’s court of the City of Atlanta, finding the defendant guilty of violating a municipal ordinance, was dismissed on motion of the attorney for the city; and the dismissal is complained of. No pauper affidavit was filed with the petition for certiorari, and no copy of the bond required by law is incorporated in the petition, nor is a certified copy thereof attached to it. The 'alleged copy of the bond which is attached to the petition is not identified' in any way, nor does it appear from the petition that the bond was accepted and approved by the clerk, nor is there any certificate from the clerk “that the bond was filed with him, and was approved and accepted by him.” Judge Broyles, in the case of Gillespie v. Macon, 19 Ga. App. 1 (90 S. E. 970), said: “The mere fact that ‘a bond’ was specified in the bill of exceptions as a material part of the record to be sent up to-this court, and that there is attached to the bill of exceptions what purports to, be a copy of a certiorari bond in the case’referred to, and that it appears from this copy that this bond was approved by the clerk of the recorder’s court of Macon, is not sufficient. Johns v. Tifton, 122 Ga. 734 (50 S. E. 941), and Veazey v. Crawfordville, 126 Ga. 89 (54 S. E. 817). All the essential facts as to the giving of the bond, its approval by the proper officer, etc., its condition, etc., should be affirmatively alleged in the petition for certiorari, and, in addition, a certified copy of the bond should be attached to the petition, together with a certificate from the clerk of the court (if there be a clerk), verifying the allegations in the petition that the 'bond has been approved and accepted by said clerk. Hubert v. Thomasville, 18 Ga. App. 756 (90 S. E. 720), Unless all of these things, are done, the certiorari should not be sanctioned, and, if sanctioned, should be dismissed on the hearing, as a petition for certiorari can in no ease be amended. This ruling is not in con-flict with Stallworth v. Macon, 125 Ga. 250 (54 S. E. 142), for in that case the petition for certiorari distinctly alleged that ‘petitioner .has filed with the clerk of .said, recorder’s court a bond, approved by the said clerk, . . . and said bond accepted by said clerk of said recorder’s court.’ As the mandatory provisions of the statute were not complied with in this case, the certiorari should not have been sanctioned. The judge of the superior court, however, having sanctioned it, committed no error in overruling and dismissing it after a hearing upon its merits. It does not appear in the judgment of dismissal for what reason the certiorari was overruled, but, as the judgment of dismissal was correct, it should nevertheless be affirmed. Memmler v. State, 75 Ga. 576 (1a); Kendricks v. Millen, 16 Ga. App. 273 (3), 277, 278 (85 S. E. 264); Flynn v. East Point, 18 Ga. App. 729 (90 S. E. 372).”

Under the ruling stated above, the court did not err in dismissing the certiorari in this case. ' •

Judgment affirmed:

Broyles, P. J., concurs. Harwell, J., dissents.

Harwell, J.,

dissenting. The petition for certiorari recites': “Petitioner having complied with all of the requirements of the law in such cases made and provided, having filed this affidavit and notice and bond, as required in such cases, with the clerk of the recorder’s court of the City of Atlanta, copies of which are hereto attached and market Exhibit “B” and “C” respectively, and which are hereby made a part and parcel of this petition and paragraph as fully and as completely as if incorporated herein,” etc. Attached to the petition is a bqnd in proper form, signed by Parks, the defendant as principal, and Clark as security, payable to the City of Atlanta, approved by the clerk of the recorder’s court of Atlanta, and showing a filing in office by the deputy clerk. While this bond attached is not market Exhibit “C” as stated in the petition, it is referred to as being attached, and is formally made a part of the petition. Being thus identified, it becomes in effect a part of the petition. The petition, therefore, does affirmatively show that the defendant has filed a bond approved and conditioned as required by the statute. Park’s Ann. Code, § 5191 (a). The writer does not understand that under the decisions of this court, or of the Supreme Court, it is necessary to attach a certified copy of the bond to the petition. That is one way in which the defendant may show affirmatively that he has filed the approved bond as required by the statute, but not the only way. See Hubert v. Thomasville, 18 Ga. App. 756 (90 S. E. 720), and eases there cited. In that case it is said: “The best way to show that a proper bond has been given is to attach to the petition a certified copy of the bond, with a certificate of approval by the proper officer, and allege affirmatively that the bond was given and approved as required.by law. However, .where this is not done, the petition must set forth all the essential substantive facts which are necessary to enable the judge of the superior court to intelligently decide whether or not the bond given is really such a bond as is de-, manded by the statute. In other words, where no certified copy of the bond is .attached to the petition,.the bond must, in substance at least, be set forth_in the petition.” v

For these reasons it seems to ' the writer that the petitioner complied with the law in the instant case, and that the judge of the superior court erred in dismissing the' certiorari.


text:
    9440.
    Pitts v. The State.
    Decided May 1, 1918.
    Indictment for bigamy; from Douglas superior court—Judge Bartlett. November 17, 1917.

      W. A. James, for plaintiff in error.

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

1. An indictment for bigamy, under the Penal Code, § 367 et seq., is barred by the lapse of four years from the date of the bigamous marriage, unless such offense or the offender is unknown, or unless such offender shall abscond from this State or so conceal himself that he can -not be arrested, in which event the time during which he has been absent from the State or concealed shall not be computed or. constitute any part of the aforesaid limitation. ■

2. It is marrying or going through the form of marriage which the law lias enjoined as requisite to the creation of the marital relation, by a person who has a husband or wife living, with knowledge of such fact, that- constitutes the offense of bigamy under our statute; and the offense is completed upon the second marriagé. Subsequent cohabitation is not a necessary element in the offense; nor will subsequent cohabitation render it a" continuing offense, so as to fix the time of cessation of the cohabitation as the point from which the statute of limitations will begin to run.

3. In answer to certified questions by this court, the Supreme Court made the rulings just stated. 147 Ga. 801 (95 S. E. 706). Under those rulings and the facts of this case, the conviction of the accused was unauthorized, and the court erred in overruling his motion for a new trial-.

Judgment reversed.

Bloodworth and Harwell, JJ., concur.


text:
    9469.
    Blake v. The State.
    Decided May 1, 1918.
    Indictment for assault with intent to murder; from Fulton superior court—Judge Hill. December 15, 1917.

      B. L. Milling, J. L. Moore, Tillou Von Nunes, for plaintiff in error.

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

The verdict was authorized by the evidence and no reversible error of law appears.

Judgment affirmed.

Bloodworth cmd Harwell, JJ., concur.


text:
    9491.
    Poole v. The State.
   Bloodworth, J.

1. Jim Poole was indicted for rape and convicted of assault with intent to rape. One of the grounds of his motion for'new trial was that the child alleged to have been assaulted (who was eight years old) should not have been allowed to testify, “because of the youthfulness of the witness, and because from her testimony it appeared that she did not understand the nature and sanctity of an oath, and her testimony*was therefore illegal and inadmissible.” While the Supreme Court held, in the case of Beebee v. State, 124 Ga. 775 (53 S. E. 99), that “It is left to the sound discretion of the trial court to determine whether or not a child of tender years is a competent witness; and where the court examines a child as to its knowledge of the nature and sanctity of an oath and decides that it is competent to testify, this court will not interfere, where it does not appear that such discretion has been flagrantly abused” (see also Holden v. State, 144 Ga. 338, 87 S. E. 27; Rogers v. State, 11 Ga. App. 814, 76 S. E. 366), under the decisions in the cases of Warthen v. State, 11 Ga. App. 151 (74 S. E. 894), Miller v. State, 109 Ga. 512 (35 S. E. 152), and Johnson v. State 76 Ga. 76, if the testimony of the child in this case stood alone, it might be necessary to set the verdict aside. But, eliminating her testimony, there would still remain in the record enough evidence to authorize the verdict.

2. Under the proved facts in this case, the court did not err in allowing the witness Ara Poole to testify. It was shown that several years prior ' to her alleged marriage to the accused she had been legally married to Ernest Hightower, who was not shown to be dead, and from whom she was not diyorced, and as to whom she testified: “Ernest Hightower has beep gone six years ‘this fall. , The last I heard from him he was on the chain-gang.” One of the presumptions of law in this State is “continuance of life for seven years.” Penal Code (1910), § 1016; Civil Code, § 5740.

3. Under the qualifying note of the trial judge, there was no error in refusing to rule out the evidence of Ara Poole as complained of in the 6th ground of the motion for a new trial.

Decided May 1, 1918.

Conviction of assault with intent to rape; from Early superior court—Judge Worrill. November 3, 1917.

A. H. Gray, for plaintiff in error.

B. T. Castellow, solicitor-general, R. R. Arnold, 'contra.

4. The instructions set forth in the 7th ground of the mo'tion for a new trial are not erroneous.

5. Ho error was committed in overruling the motion for a> new trial.

Judgment affirmed.

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


author: . Harwell, J,

text:
    9503.
    O’BRIEN v. THE STATE.
    Where an accusation charged in one count the unlawful possession of spirituous liquors, and in another count an unlawful sale of spirituous liquors, an acquittal on the first count did not render illegal a conviction on the other.
    Decided May 1, 1918.
    Accusation of misdemeanor; from city court of Savannah— Judge Bourke. December 33, 1917.
    The accusation contained two counts, the first charging unlawful possession,of spirituous liquor, and the second charging unlawful sale of such liquor. The State’s witness testified that the defendant sold the liquor; a witness for the defendant testified that he did not. A witness present a part of the time referred to by these witnesses testified that he did not see any liquor. There was evidence as to drunkenness, profane language, and'a fight. The jury acquitted the defendant on the first count and convicted him on the second. He made a motion for a new trial and a motion in arrest of judgment, both of which were overruled, and he excepted. The motion for new trial was based on the usual general grounds and on the following charge to the jury: “In the event you should find this defendant guilty upon one count of the accusation and not guilty upon the other,—that is, if you find him guilty upon the count that he unlawfully had, controlled, or possessed, or that he sold liquor, and not guilty upon the other,—you should specify in your verdict the number of the count you find him guilty upon, and the number of the count that you find him not guilty upon.” The motion in arrest of judgment alleged that “the verdict finding the defendant guilty upon the second count, charging the .offense of the sale of spirituous liquors on the same date named in the first count, is inconsistent with the verdict of not guilty rendered on the first count, charging the defendant with the offense of having spirituous liquors in his possession.” There were other grounds raising substantially the same question.

      Osh orne, Lawrence & Abrahams, for plaintiff in error.

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

(After stating the foregoing facts.) It is insisted that the conViction on the second count—the count charging the sale of intoxicating liquor—is inconsistent with the acquittal on the first count, charging the accused with having intoxicating liquor in his possession and control, and that the verdict can1 not stand and no legal sentence can be entered thereon. While this contention is ingenious, we can not agree with the able counsel for plaintiff in error. “If defendant is charged with separate and distinct crimes, although of a similar character, in two or more counts, a verdict of acquittal on one or more counts and conviction on the others is not inconsistent.” 12 Cyc. 695 (v). In Griffin v. State, 18 Ohio St. 444, it is said by the court: “This is a technical objection, and a technical answer-to it is sufficient. As we have already said, the theory of the law is that each count of the indictment charges a distinct offense; hence it follows that the finding of the jury as to a particular count is independent, of and unaffected by the finding upon another count.” In Weinecke v. State, 34 Neb. 14 (51 N. W. 310), that court said: “The evidence would have justified a conviction under both counts of the information. Both offenses were committed by the same person and at the same/time. It is, indeed, unexplainable how the jury arrived at the verdict returned. As a separate offense is charged in each count, the verdict is not void. The defendant can not complain because he was acquitted of the first offense. The error was in his favor. State v. Turner, 6 Baxt. 201.” See also Com. v. Lowrey, 159 Mass. 62 (34 N. E. 81); Com. v. Ruisseau, 140 Mass. 363 (5 N. E. 166); Pettes v. Com. 126 Mass. 242. “Where distinct offenses are charged in separate counts . . there may b'e ah .-acquittal on some counts and a conviction or disagreement on others.” 2 Bishop’s New Crim. Proc. § 1015 a (4) (p. 884), and cases cited. See also Hathcock v. State, 88 Ga. 91 (2) (13 S. E. 959); Tooke v. State, 4 Ga. App. 495 (3-d) (61 S. E. 917).

The acquittal of the defendant on the first , count is really in Ms favor, as the jury were authorized under the evidence to convict him also on that count. We have no means of knowing what led the jury to find as they did, and it would serve no useful purpose to speculate thereon. The offenses charged in the two counts are separate and distinct, and under the authorities above cited the court did not err in overruling the motion to arrest the judgment. The other headnotes need no elaboration. The verdict was authorized by the evidence, and the judgment is

Affirmed.

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


author: Bloodwobth^ J.

text:
    9509.
    McWhorter v. The State.
    Decided May 1, 1918.
    Rehearing denied May 14, 1918.
   Bloodwobth^ J.

1. Upon the trial of this ease several police officers testified for the State, and none for the defendant. The defendant’s conviction was not demanded by the evidence. Under these facts it was error, requiring the grant of a new trial, for the court to charge tlje jury as follows: “But the fact that a man is an officer is nothing against him. We rely upon these officers.” (Italics ours.) This is true even though in immediate connection with this charge the judge told the jury, “I charge you, the fact that a man is a detective or police/officer should not discredit his testimony. It goes to his credit that he is actively engaged in the prosecution of the case, . . and the fact that, they [the detectives and police officers] receive money from people for recovering their property which has been stolen is a fact which you may consider. If they get money in any case for the purpose of securing a conviction, or if a conviction depends on their evidence, it should go to their credit, and largely to their credit.” Eor the presiding judge in his charge to designate a class of witnesses and to tell the jury, “We rely upon” them, is to give to these officer-witnesses “judicial endorsement and approval,” and “to give an improper potency to the influence” of their testimony. Civil Code (1910), § 4863; Potter v. State, 117 Ga. 693, 695, 696, 698 (45 S. E. 37); Alexander v. State, 117 Ga. 266 (2), 267, 268 (40 S. E. 231); Pound v. State, 43 Ga. 88, 90 (7).

2. As this case goes back for a new trial, and the other errors alleged are of súch a ¡character that they may not -recur on another trial, it is unnecessary to pass upon them.

Judgment, reversed.

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

Indictment for burglary; from Fulton superior court—Judge Hill. December 12, 1917.

, Thomas E. Scott, Bichard B. Bussell, Bobert P. Jones, for plaintiff in error.

John A. Boykin, solicitor-general, E..A. Stephens, contra.


author: Broyles^ P. J.

text:
    9562.
    Adams v. The State.
    Decided May 1, 1918.
    Accusation of possessing intoxicating liquor; from city court of Carrollton—Judge Beall. January 7, 1918.

      .E. T. Steed, J. H. Hudson, 1. N. Cheney, for plaintiff in error.

      Willis Smith, solicitor, contra.
   Broyles^ P. J.

1. A ground of a motion for a new trial which complains of the admission of specified testimony must state the name of the witness whose testimony is complained of. Hayes v. State, 18 Ga. App. 68 (88 S. E. 752); Peeples v. Butler, 21 Ga. App. 310 (94 S. E. 278). Under this ruling the first ground of the amendment to the motion for a new trial can not be considered.

2. As the proof showed that the offense of having, controlling, and possessing intoxicating liquors was committed solely in October, 1917, after the passage of the prohibition law of 1917 (Ga. L. 1917, Ex. session, p. 7, 8), which became effective on March 28, 1917, and the trial having occurred on December 3, 1917, it was not harmful to the accused that the court charged the jury that the offense could be proved at any time within two years prior to the filing of the charge against him.

3. The affidavit of the defendant in support of the ground of his motion for a new trial based, upon alleged newly discovered evidence shows that much of this evidence was known to him before his trial, although he did not then know it was material evidence, and that he failed to inform his counsel concerning it. See in this connection Carlisle v. Tidwell, 16 Ga. 33. Moreover, this evidence was cumulative in its character, and the brief of, evidence clearly shows that substantially all of it j;hat would have been relevant was known to the defendant, or could have been discovered by him with the use of ordinary diligence, before his trial. In addition, the supporting affidavits as to the good character, etc., of the newly discovered witnesses are defective, in that they fail to show their associates or means of knowledge. Civil Code (1910), § 6086; Young v. State, 56 Ga. 403, 406. Under such circumstances it was not error for the judge to overrule this ground of the motion for a new trial.

4. The verdict was authorized by the evidence.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


author: Bloodwokth, J.

text:
    9563.
    Morrow v. The State.
    Decided May 1, 1918.
    Indictment for assault and battery; from Carroll superior court —Judge Terrell. January 11, 1918. i

      Buford Boylcm, for plaintiff in error.

      O. E. Roop, solicitor-general, contra.
   Bloodwokth, J.

1. Under the oft-repeated rulings of. this court and of the Supreme Court that each ground of a motion for a new trial must he complete and understandable without resorting to an examination of the brief of the evidence or of any other part of the record, the first ground of the amendment to the motion for a new trial in this case will not be considered. Southern Ry. Co. v. Williams, 19 Ga. App. 544 (4) (91 S. E. 1001); Smiley v. Smiley, 144 Ga. 546 (87 S. E. 668).

2. No error warranting the grant of a new trial appears in the excerpts from the charge of the court complained of in grounds 2, 3, 4, and 5 of the amendment to the motion for a new trial; and there is no merit in grounds 6 and 7.

3. In the brief of counsel for the plaintiff in error the general grounds of the motion for a new trial are expressly abandoned.

Judgment affirmed.

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


author: Harwell, J.

text:
    9564.
    CHANCE v. THE STATE.
    There being some evidence to authorize the verdict of assault with intent to rape, and the verdict being approved by the trial judge, this court will not interfere.'
    Decided May 1, 1918.
    Conviction of assault with intent to rape; from Colquitt superior court—Judge Thomas. January 35, 1918.

      Ragan & Maire, Edgar Dykes, James Humphreys, for plaintiff in error. '

      Fondren Mitchell, solicitor-general, T. H. Parker, contra.
   Harwell, J.

Charlie Chance was indicted for rape upon his fourteen-year-old daughter, Lela Chance, and was convicted' of assault with' intent to rape. Her testimony was sufficient to authorize the verdict. Other witnesses testified that she came to them and made complaint of her father^ treatment, and a physician testified on behalf of the State as to her condition. The exceptions relate, only to the sufficiency of the evidence to support the verdict.

Judgment affirmed.

Broyles, P. J., and BloodwortTi, J., concur.


author: Bbotles, 3?. 3.

text:
    9565.
    Propes v. The State.
    Decided May 1, 1918.
   Bbotles, 3?. 3.

1. The grounds of the motion for a new trial that complain of the admission of illegal testimony can not be considered, since they are fatally defective in failing to set out the testimony objected to, and in failing to state what, if any, objections were urged at- the time it was offered.

2. The ground of the motion for a new trial relating to a' refusal of the court to allow counsel for the accused to propound a certain question to a witness is insufficient, as it is not shown that the court was apprised of the expected answer.

3. Uncfer the evidence, as disclosed by the record, the .offense of involuntary manslaughter was not involved, and the court could not properly have charged the jury upon that grade of homicide. It was not error^ therefore, for the court to instruct the jury that “the only manslaughter that the court will charge you on—that he thinks applicable to the evidence—is voluntary manslaughter.” Choice v. State, 31 Ga. 424, 469; Sanders v. State, 113 Ga. 267 (38 S. E. 841); Dotson v. State, 129 Ga. 727 (59 S. E. 774); Worley v. State, 136 Ga. 231 (71 S. E. 153); Merck v. State, 137 Ga. 89 (72 S. E. 896).

4. In view of the ample, fair, and correct charge of the court upon the issues involved, and on thev law relating to dying declarations, and in the absence of timely written requests for fuller and more particular instructions, there is no merit' in the grounds of the motion for a new trial which complain of the failure of the court to give certain instructions set out, as to the weight of dying declarations. *

5. The statement in the charge of the court that “this defendant says, when he shot this man, the deceased had cursed him,, had struck him with his hand and, was advancing upon him with a knife, and that he was manifestly intending and endeavoring by violence, that is by the use of a knife upon him, to commit a felony upon him by stabbing him, and that he shot him in order to prevent the commission of that felony,” can not be held to be incorrect in that, as alleged in the assignment of error thereon, the defendant did not contend that he had ever been actually struck by the deceased. The statement of the accused is not before this court, only so much of the brief of the evidence as contains the testimony of two witnesses for the 'State being specified in 'the bill of exceptions and sent up in the record, as material to an understanding of the case. Moreover, it appears from the evidence sent up that one of the witnesses testified that the defendant stated to him, in explanation of the shooting, that “Ernest [the deceased] hit him with his fist and knocked him against the post, and then was coming on him with his knife.” See Robinson v. State, 109 Ga. 506 (5) (34 S. E. 1017); Wrightsville &c. R. Co. v. Gornto, 129 Ga. 204 (2), 206 (58 S. E. 769).

6. The verdict was authorized by the evidence specified by the plaintiff in err'or and transmitted to this court, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Bloodworth and, Harwell, J.J., concur.

' Conviction of manslaughter; from Fulton superior court—Judge Hill. January 2, 1918.

John 8. Highsmith, for plaintiff in error.

John A. Boykin, solicitor-general, E. A. Stephens, contra.


author: Bloodwoetii, J.

text:
    9575.
    Stewart v. The State.
    Decided May 1, 1918.
    Accusation of possessing intoxicating liquor; from city court of Dublin—Judge Flynt. January 26, 1918.

      T. E. Hightower, for plaintiff in error.

      8. P. New, solicitor, contra.
   Bloodwoetii, J.

1. The trial judge did not, err in refusing to charge to the jury as requested by the plaintiff in error.

2. There was evidence sufficient to support the verdict, and the judgment is

Affirmed.

Broyles, P. J., and Earwell, J., concur.


text:
    9576.
    PITTMAN v. THE STATE.
    1. The ground of the motion for a' new trial which complains that the court illegally withheld from the jury material evidence of a named witness, as to a statement made to him by a person named, is incomplete; and such testimony would have been hearsay and inadmissible.
    2. In view of the charge of the court as a whole, the court did not err in giving in charge the first sentence of section 682, and geetion 1332, of the Penal Code of 1910^ pertaining to bastardy.
    3. The allegation of the indictment as to the name of the mother of the bastard child was supported by evidence showing that she was known by that name, although she was also known by a different surname.
    4. The verdict finding the accused guilty of bastardy was authorized by the evidence.
    Decided May 1, 1918.
    Indictment for bastardy; from Haralson superior court—Judge Bartlett. December 18, 1917.

      Lloyd Thomas, G, R. Hutchens,, for plaintiff in error. -
    ■ J. R. Hutcheson, solicitor-general, contra.
   Harwell, J.

The plaintiff in error was indicted for bastardy, and was convicted, and, Ms motion for a new trial being overruled, he excepted.

The first special ground of the motion complains that the court illegally withheld from the jury material evidence of John Bassett, a witness for the defendant, as to a statement made to him by one Will Smith. There is no merit in this ground of the motion. In the first place it does not set out what Will Smith told the witness, and is incomplete for that reason. Furthermore, the statements of Will Smith to the witness, would have been hearsay and inadmissible. The court permitted the witness to testify as to alleged acts of sexual intercourse of Will Smith with the prosecutrix, that Will Smith had left, when he léft, etc. Compare Kennedy V. State, 9 Ga. App. 219 (2) (70 S. E. 986).

The second and third special grounds of the motion complain of certain excerpts from the charge of the court, which are the first part of section 682 and section 1332 of the Penal Code of 1910, pertaining to bastardy. There was no error in giving these sections to the jury. The court elsewhere in the charge correctly submitted to the jury the'issues in the case. Perry v. State, 1 Ga. App. 542 (58 S. E. 60); Martin v. Hale, 136 Ga. 228 (2) (71 S. E. 133); Eagle & Phenix Mills v. Herron, 119 Ga. 389 (3) (46 S. E. 405).

In the fourth' ground of the motion it is contended that the evidence shows that the name of the prosecutrix, the mother of the child, was Anna Edwards, and not Anna Miller as alleged in the indictment, and that for that reason there was such a variance in the allegations and the proof as required a new trial. The testimony of the prosecutrix shows that she married Harry Edwards, and that Her name was Anna Edwards, but that she had not seen her husband in about ten years, and That her father’s name was Miller. She further testified: “I go by the name of Anna Miller. I have been’ going by the name of Anna Miller ever since my husband left me. My name is Anna Miller. I am also Anna Edwards. My husband’s name was Edwards. Since he left me ten years ago I have been going by Anna Miller.” The record shows also that the witnesses for the defendant, in their testimony, referred to' the prosecutrix as Anna Miller. It appears therefore that she was known and recognized by the name of Anna Miller; and there is no merit in this ground of the motion. Jones v. State, 63 Ga. 456 (1); Hainey v. State, 107 Ga. 711 (33 S. E. 418); Wilson v. State, 69 Ga. 235; Johnson v. State, 46 Ga. 269; McLain v. State, 71 Ga. 279 (6); Jenkins v. State, 4 Ga. App. 859 (3) (62 S. E. 574).

The able counsel for the. plaintiff in error insist that the verdict is not supported by evidence. On the trial the defendant offered the testimony of several witnesses in an effort to show that some one other than the defendant was the father of the child. There was a conflict in the testimony, and the jury determined the issue against the defendant and chose to believe’ the testimony of the prosecutrix, who testified that the defendant was the father of the child. The trial judge having approved the verdict, this court will not interfere.

Judgment affirmed.

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


text:
    9577.
    Storey v. The State.
    Decided May 1, 1918.
    Indictment for making intoxicating liquor; from Harris superior court—Judge Howard. February 2, 1918. ■ '

      A. L. JIardy, George 0. Palmer, for plaintiff in error.

      G. P. McLaughlin, solicitor-general, contra.
   Broyles, P. J.

The evidence, while circumstantial, was sufficient to exclude every reasonable -hypothesis save that of the defendant’s guilt.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9578.
    Ward v. The State.
    Decided May 1, 1918.
   Bloodworth, J.

1.,There is no merit in the grounds of the motion for a new trial which complain of the admission of testimony that the general reputation of the defendant’s house for lewdness was bad. “Reputation of a house being kept and maintained as a lewd house is admissible evidence.” Hogan v. State, 76 Ga. 82 (3); Brindle v. Copeland, 145 Ga. 398 (2) (89 S. E. 332); Jones v. State, 2 Ga. App. 433 (7) (58 S. E. 559); Coleman v. State, 5 Ga. App. 766 (2) (64 S. E. 828).

2. There is sufficient evidence to support the verdict. Heard v. State, 113 Ga. 448, 449 (39 S. E. 118).

Judgment affirmed.

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

Accusation of maintaining lewd house; from city court of Floyd county-^Judge 'Nunnally. February 9, 1918.

W. B. Mebane, for plaintiff in error.

James F. Kelly, solicitor, contra.


text:
    9581.
    PHINAZEE v. THE STATE.
    1. The exclusion of testimony of a witness for the State, that he had been “arrested about this same affair,” was not, under the facts of this case, such harmful error as to require a new trial.
    2. The instructions on circumstantial evidence, which were complained of as taking from the jury the right to apply the doctrine of reasonable doubt, were not erroneous, when considered with the remainder of the charge of -the court.
    3. The court did not err in giving in charge the rule laid down in section 1013 of the Penal Code (1910).
    4,5. The instruction on the law as to a confession, complained of in ground 6 of the motion for a new trial, was not error for the reasons assigned. The other grounds relating to instructions of the court on confessions are incomplete, it being.necessary tf> refer to other parts of the record to understand ■ and pass upon them; and therefore they can not be considered.
    6. Grounds of the motion for a new trial not argued in the brief of counsel for the plaintiff in error will be treated as abandoned.
    7. The conviction of assault with intent to murder was authorized by the evidence.
    Decided May 1, 1918.
    Indictment; for assault with intent to murder^ from Spalding superior court—Judge Searcy. February 11, 1918.
    The plaintiff in error was found guilty of assault with intent to murder. The evidence showed that' officers went to raid a still. When they arrived on the scene, about 8 o’clock at night, they, watched the operations at the distillery for a while, and then ran towards the still and holloaed for the persons at the distillery to "hold up.” One of the party testified that as they ran towards the still a pistol-shot was made, and he then shot in the direction from which the blaze of the pistol came, and that there were three or four shots with a shotgun on his left. He afterwards went back and found that the shots had hit within three feet from the place where he stood. The first pistol-shot came so close to,him that he felt the air in his face as it came by. The sheriff testified that three people were shooting at them, and that the shots came from different places; that one shot hit him in the jaw, and that the load of shot came, with such force that it knocked him back, and-three heavy loads came by him. The officers testified that there were four or more people at the still, and that one person that came by the officers was about the size of the defendant. They watched the persons at the still, but.could not identify them, as they could only see them from, their waists down. As the officers charged' in the” direction of the still the persons at the still ran off. ‘ One of the officers further testified that he saw' defendant subsequently, and that his back from his neck down was full of shot; that they were gun shot, fine shot, number 9, the same that he used in his pump-gun, and that the defendant said' that he (defendant) was shot at the still that night, and that the defendant told him they were making liquor there; that when the-pistol-shot was first-fired at the officers they commenced shooting; that one of the men at the still had a lantern; that as the officers ran towards the still they holloaed, “Hold up;” that they were about fifty or sixty feet from the still when they started to run towards it; that -they had no warrants for these men; that no whisky had been run at the still that night; it was not quite hot enough. “They were looking after the beer and water.”
    Grant Reid, another witness for the State, testified that-he saw the defendant that night, that the- defendant came to his house about eight o’clock with a double-barrel shotgun, and that the distillery was about three quarters of a mile from his house; that the defendant, when asked how he was getting along, said, “Pretty bad,” that he “got shot awhile ago mighty bad;” that he was in the swamp distilling, and “revenóos” ran upon them and told them to “hold up;”, he (the defendant) said he had his gun behind a pine tree, and took it up and shot at them twice, and then turned and ran; that he didn’t know how it was that he got shot when he turned and ran; that they shot him in the back; that he shot at them, but he didn’t know whether he shot anybody oy not; that he shot twice at the “revenóos.” - •
    The defendant, in his statement at the trial, said that Grant Reid, the State’s witness, got him and one Mitchell to go over there to help him run off some liquor, and that on the night on' which the -still was raided he saw Reid there, and was .at Reid’s house afterwards; that they got to the still directly after-dark-set in, and. the stuff was wet, and. directly after they got the lire started these persons came up; that they came tipping across there, and “about that time it looked like somebody started to run/ and some one hollered to hold up,” and he got up and commenced to move, away; that he heard the shooting, but didn’t know who shot; that he didn’t shoot; that'all he knew was that they were shooting him, and it looked like every shot hit him, and after the shooting was over he went on down in the swamp and across the field, over by Keifl’s house. He then related a conversation which he said took place between him and Eeid, and explained why he left the com'munity. ’ He denied having done the shooting.

      J. W. Culpepper, J. A. Dorsey, W. I. Heyward, for plaintiff in error. E. M. Owen, solicilor-general, contra.
   Harwell, J.

(After stating the foregoing facts.) The first special ground of the motion for a new trial complains that the court erred in ruling out testimony of Grant Eeid, a witness for the State, and the question in response to which it was given, as follows: “Q, Haven’t you been’ arrested about this same affair? A. Yes, sir.” This testimony, we think, was competent, and should have been admitted, as illustrating the witness’s interest in the case. The court adds to this ground a note stating that “The defendant • had the benefit that-the admission of this testimony would have afforded, because his counsel was permitted to and did argue to the jury the weakness of the witness Eeid’s testimony, for the reason that Eeid had been charged with this same crime, and was trying to clear himself by showing defendant’s guilt.” Under the facts .thus shown we think that the exclusion of this testimony' was not so prejudicial as to affect the verdict, and therefore was not such error as would afford reason for the grant of a new trial.

In the second special ground of the motion for a new trial the following excerpt from the charge of the court- was complained of: “In cases founded upon direct or positive testimony the rule of reasonable doubt applies; but in cases founded upon indirect or circumstantial evidence, such as this case is, the law requires that the proven facts and circumstances shall not only be consistent with the guilt of the accused, but shall be inconsistent with his innocence, and.must exclude every other reasonable hypothesis save that the accused is guilty. In this case the burden is on the State to prove to your satisfaction, and to this extent, the guilt of this accused, before you would be authorized to convict him.” We do not think that this excerpt from the charge' is subject to the criticism that it took away from the jury the right to apply the doctrine of reasonable doubt. Immediately following this instruction the judge,charged on the subject of reasonable doubt, and 'in other portions of the charge he instructed the jury that if they had a reasonable 'doubt of the defendant’s guilt that they should acquit him". The court in the charge excepted to was simply giving to the jury the rule applicable in cases founded upon circumstantial evidence, and instructed them that before they would bo authorized to convict the defendant, the evidence must come up to, that rlile. We think therefore there is no merit in this groiind of the motion.

The third special ground of the motion .complains of the following charge; taken from the Penal Code, § 1013: “The true rule in criminal cases is not whether it be possible that the conclusion at which the testimony points may be false, but whether there is sufficient testimony to satisfy the minds of fair, impartial jurors that the defendant -is guilty as charged in the indictment beyond a reasonable doubt.” We, do' not think that this charge, when taken in connection with the charge as a whole, is erroneous for th'e reasons alleged,—that it excluded the defendant’s statement from consideration, and expressed an opinion that testimony pointed to his guilt. The court charged fully and correctly the law as to the statement of the accused. See Early v. State, 14 Ga. App. 467 (2), 469 (81 S. E. 385), and cit.

Ground 4 alleges that the judge erred “in charging the, jury, on pages 2 and 3 of his written charge, the law in regard to* confessions in criminal cases, for the reason that the -alleged statements made by the defendant to the witness Grant Reid were not in the nature of a confession, but'nothing more or less than inculpatory admissions.” Ground 5 alleges that the judge'erred “in charging the jury on page two and three of his written charge, on the doctrine of confessions,” etc. These grounds are not complete and can not he considered. This court and the Supreme Court have repeatedly held that the grounds of a motion for a new trial must be complete within themselves, and can not be con- , sidered when it is necessary to refer to other portions of the record in order to understand them.

Ground 6 complains of the following charge: “If you find there was hope or fear, but if you find that the hope or fear originated in his own mind and was not induced or kindled by the acts, conduct, or words of another,-' and that, under the influence of the hope or fear so originated, defendant made the confession,' thisi.'5fould not exclude the confession from evidence.” We do not think this-instruction is erroneous as being unwarranted by the evidence and inapplicable to the facts, or as expressing an opinion on the part of the court that- a confession had been made. By reference to the court’s charge it appears that the court submitted to the jury the question as to whether or not any confession had been made by the- defendant, and charged the jury fully and fairly on this subject and in immediate connection with this excerpt. '

In reference to the remaining grounds of the’ motion the brief of counsel for the plaintiff in error says merely: “We insist upon all of the assignments. of error in the 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, and 18th grounds in the amendment to the motion for a new trial, for the'reasons therein stated.” Under repeated rulings of this court, these grounds, not being argued in the brief, will be treated as abandoned. Barfield Music House v. Harris, 20 Ga. App. 42 (2) (92 S. E. 402); Agee v. Rhodes, 20 Ga. App. 117 (92 S. E. 771).

The able counsel for the plaintiff in error insisted that the evidence did not authorize a conviction of assault with intent to .murder, but at most authorized only a verdict of shooting at another. We can not agree with this contention. Some of the evidence is set out in the statement of facts, and, without going into a discussion of the question, we think that it will readily be seen that the evidence amply authorized the verdict. The defendant, according to' his own statement, being engaged at the time in a violation of the law, and the offense being committed in the presence of the officers, it was not necessary that the officers have a warrant in order to make the arrest. The officers did not fire until they were fired upon, and then fired' in the direction from which the pistol-shot came. The defendant, according to the testimony of Reid, fired twice with a shotgun, and these shots came, not from the direction in which the officers were firing, but from their left; so under no view of the evidence was the defendant justifiable, and the verdict of- assault with intent to murder was amply authorized by the evidence.

Judgment affirmed.

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


text:
    9585.
    Salter v. The State.
    Decided May 1, 1918.
    Accusation of possessing intoxicating liquor; from city court of Dublin—Judge Elynt. February 19, 1918.

      W. A. Dampier, for plaintiff in error.

      S. P. New, 'solicitor, contra.

   Broyles, P. J.

The verdict was authorized by the evidence, and there is no merit in any of the special grounds of'the motion for a new trial.

Judgment affirmed.

Bloodworth and Harwell J.J., concur.