author: Harwell, J.

text:
    9712.
    SEABOARD AIR-LINE RAILWAY v. THE STATE.
    Decided November 16, 1918.
    No error of law having been committed, and the verdict being authorized by the evidence, the refusal of a new trial was not error.
    Indictment for violating liquor law; from Crisp superior court— Judge Crum. March 30, 1918.
    The • Seaboard Air-Line Kailway Company was convicted of having, controlling, and possessing alcoholic, spirituous, malted, vinous, fermented, and intoxicating liquors, and was fined $1000 and costs of court. <A motion for a new trial was overruled, and the defendant excepted.
    J. M. Clements, for the State, testi Red, that he saw three trunks, just alike and having consecutive check-marks, at the union passenger-station ; that one of them had something leaking out of it that smelled like whisky; that from a quart to a half gallon ran out; that the man in charge of the baggage-room said that he wanted to wash that up before a cop came along, and he went to the water spigot and "poured water on where the whisky was on the concrete,” and that he saw these trunks put on the train. T. N. Turk, for the State, testified, that he saw said trunks on this occasion loaded on a truck, and “one of the trunks was wet where the whisky had come from the lid and run down to the bottom; the trunk had' been turned over; you could smell whisky there; the whole air was perfumed with it, and there was some of it on the trunk;” that he called the attention of Mr. Luffman, the agent of the defendant,»to the fact that the trunks were there in that condition, and the agent replied that he thought there was whisky in .them too; that the trunks were checked from.Ashburn to Amerieus; that baggage is transferred at Cordele from the Georgia Southern to the Seaboard by truck, this being a distance of about 150 or 200 feet; that it was in full view of everybody and in a public place; that he also called the agent’s attention to the excelsior sticking around the trunks. Olin Johnson, for the State, testified, that he saw the three trunks; that one of them was damp; that he smelled the whisky; that he saw the contents of two.of the trunks after they were taken out; and that they contained beer and whisky.
    W. W. Sims, for the defendant, testified, that he was baggage-agent for the defendant at Cordele; that his attention was not attracted to the trunks so far as his official duties were concerned that he did not see anything leaking from any of them; and that he “did not get any water to wash up where the whisky was leaking; no whisky was leaking.” E. L. Luffman, for the defendant, testified, that he was agent at the union depot and represented all the roads, including the defendant company; that his attention was called to these trunks on this occasion; that “only now and then there would be a drop of something out of the trunk, one of the trunks, that smelled like whisky or something that had whisky in it;” that, the trunks were checked from Ashburn to Amerieus,’ and they were carried' around and put on the Seaboard train and went' to .Amerieus; that he “had no .knowledge at all that ther.e was any other whisky in that trunk that had not already dripped out;” that there was nothing about the trunks to attract attention that Mr. Turk did not tell him that there was a trunk out there that had whisky in it; that he could smell whisky; that he was in charge of the, employees at the depot, including the baggage-masters; and that he saw no excelsior sticking out from the trunks.

      Whipple & McKenzie, for plaintiff in error..

      Joseph B. Wall, solicitor-general, Jesse Grantham.

   Harwell, J.

1. In the motion for a new trial it is contended that a fine of $1000 is excessive and unjust. This cannot be made a ground for a new trial, and therefore will not be considered. Sable v. State, 22 Ga. App. 768 (97 S. E. 271), and cases cited.

2. The trial judge did not err in refusing to allow the agent of the defendant railroad company to testify what his policy was and what he had done on previous occasions relative to baggage containing whisky. Compare Donalson v. State, 3 Ga. App. 452 (2) (60 S. E. 115).

3. The seventh ground of the motion for a new trial is without merit, and a discussion thereof is unnecessary.

4. No error is shown in the eighth ground, which assigns error on the refusal of the court to permit a witness for the defendant to testify as to what his duties were with reference to the matter of whisky being transported or received in possession as baggage. It was not shown that the witness was present or had anything to do with the transáction under investigation.

5. It is complained that the court sustained an objection to the following question propounded to a witness for the State (a policeman): “State whether or not you have ever received any extra compensation” (referring to reward for reporting violations of the prohibition law in cases previous to the one on trial). Testimony as to compensation in the case on trial would have been material and admissible to show the interest of the witness, but compensation in previous cases could not affect his testimony in the instant case, and the objection was properly sustained.

6. Error is assigned on certain excerpts from the charge of the court, to the effect that it is a violation of the law for a common carrier, a corporation, to have, control, and possess intoxicating liquors in this State. The law relating to this subject is found in section 1 of the act of the General Assembly approved March 28th, 1917, and is as follows: “It shall be unlawful for any corporation, firm, person or individual to . . have, control, or possess,, in this State, any of said enumerated liquors or beverages whether intended for personal use or otherwise, save as hereinafter excepted.” The act by its plain terms makes it unlawful for any corporation to have, control, or possess, in this State, any of the liquors mentioned. There is no exception in behalf of yommon carriers. We cannot agree with the learned counsel for the plaintiff in error that the express mention of common carriers in another part of the same section and elsewhere in the act shows that it was the intention of the General Assembly to except common carriers from the provisions of this law. We think that the act clearly indicates that it was the intention of the legislature to prohibit intoxicating liquors, except in specified cases, from being transported into or within, or possessed or controlled in, this State by any person whatsoever, natural or artificial. This intent is made clear by the fact that the act names every conceivable one who could transport or possess or control intoxicating liquors. The defendant company is a corporation, and consequently is included under the plain terms of the act.

7. Error is assigned on the charge of the court to the effect that if the defendant company came into possession of the liquors innocently, and afterwards received information that the packages contained intoxicating liquors, and, after receiving such information, took possession and control over the packages and transported them in the county as a common carrier, the jury would be authorized to find the defendant guilty. This was adjusted to the issue in the case, and, when considered in connection with the evidence and the charge of the court as a whole, we find no error therein.

The evidence amply authorized the verdict, which was approved by the trial judge; and no error of law was committed. The judgment overruling the motion for a new trial is

Affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    9770.
    Stuckey v. The State.
    Decided November 16, 1918.
    Accusation of possessing intoxicating liquor; from city court of Dublin—Judge Elynt. April 15,, 1918.
    The defendant was convicted of the offense of having in his possession intoxicating liquors. The State’s witnesses testified, that they found the defendant drunk in his store, and that he had about eight quarts of whisky iu suit-cases on the foot of his “bunk” in the store; that the store was locked; and that there was no one in there except the defendant. The defendant contended, that he was not drunk, but was sick; that he did not own the whisky or kno.w anything about it; and that it was put in his store without his knowledge or consent.
   Harwell, J.

The only question involved was one of fact, which the jury determined. The evidence amply authorized the verdict, which was approved by the trial judge. No error of law appears in the special grounds of the motion for a new trial, and the judgment is

Affirmed.

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

Fred Kea, for plaintiff in error.

S. P. New, solicitor, contra.


author: Bloodworth, J.

text:
    9791.
    SMITH v. THE STATE.
    Decided November 16, 1918.
    1. Under previous decisions, several exceptions to rulings on admission of evidence present no question for consideration.
    2. An abandoned exception calls for no decision.
    3. The preliminary evidence was sufficient to. authorize the admission of testimony relating to dying declarations. If there was any error in this respect, it, was not material in the circumstances.
    4. Under the evidence it was not error to give in charge to the jury the law relating to voluntary manslaughter.
    5. The verdict was authorized by the evidence.
    Conviction of manslaughter; from Jasper superior court—Judge Park. April 30, 1918.

      W. H. Key, A. S. Thurman, for plaintiff in error.

      Doyle Campbell, solicitor-general, contra.
   Bloodworth, J.

Grounds 4 and 5 of the motion for new trial can not be considered by this court, because it does not appear in the former that any objection was made to the admission of the evidence and passed upon by the court at the time the evidence was offered. Cooper y. Chamblee, 114 Ga. 116 (39 S. E. 917); Tilley v. McJunkin, 116 Ga. 426 (42 S. E. 741); City of Atlanta v. Sciple, 19 Ga. App. 694 (92 S. E. 28), and cases cited. Ground 5 can not be determined without, reference to other parts of the.record. “No ground of a motion for new trial which is not complete and understandable without resorting to an examination of the brief of evidence or the charge of the court will be considered as presenting a question for consideration by .this court.” Southern Ry. Co v. Williams, 19 Ga. App. 544 (4) (91 S. E. 1001).

Ground 6 of the motion for a new trial is specifically abandoned by plaintiff in error.

The admission of dying declarations is complained of in ground 7. If it could be said that the admissibility of these dying declarations was doubtful, “It has long been the rule in this State, when the admissibility of evidence is doubtful, to admit it and leave its weight and'eifect to be determined by the jury.” Goodman v. State, 122 Ga. 118 (49 S. E. 925), and cases cited; Hornsby v. Jensen, 12 Ga. App. 696 (78 S. E. 267). The preliminary evidence was sufficient to authorize the admission of these dying declarations, leaving it to the jury, under proper instructions, to determine if they were made in articulo mortis, and if the deceased was conscious of her condition. Young v. State, 114 Ga. 849 (2), 850 (40 S. E. 1000); Dumas v. State, 62 Ga. 59 (2). But if it be conceded that error' was committed' in admitting the testimony set out in this ground of the motion for a' new trial, it was not such a material error as would authorize this court to grant a new trial; for practically the same evidence from another witness was before the jury. Matthews v. Richards, 19 Ga. App. 489 (2) (91 S. E. 914), and cases cited. '

The defendant in his statement at the trial said that the deceased had cut him, and at the time he fired she was advancing on him with a knife. A witness swore: “I remember the night Ida Davis [the déeeased] got shot. . . I went to the house after the shooting. ... I did not see nothing there but a knife. Ida was lying there on the' floor. The knife was open. It was about that far from her hand (indicating), right near her right hand.” It was not shown that the knife was one likely to produce death. In the case of Cain v. State, 7 Ga. App. 24 (65 S. E. 1069), we find the following: “It is well settled by repeated rulings of the Supreme Court and this court, that on a trial for murder, if .there is anything deducible from the evidence or the defendant’s statement, that would tend to show manslaughter, voluntary or involuntary, it is the duty of the court to instruct the-jury fully on the law of manslaughter. Crawford v. State, 12 Ga. 142 (6); Jackson v. State, 76 Ga. 473; Wynne v. State, 56 Ga. 113; Bell v. State, 130 Ga. 865 (61 S. E. 996); Strickland v. State, 133 Ga. 76 (65 S. E. 148); Pyle v. State, 4 Ga. App. 811 (62 S. E. 540). In the Crawford case, supra, the court strongly expresses itself on the subject as follows: ‘When a defendant is put upon trial for murder, and there is any doubt as to the grade of homicide of 'whish he is guilty, it is the duty of the court clearly and distinctly to instruct the jury as to the law, defining the several grades of homicide as recognized by the Penal Code, and then (leave it to the jury to find from the evidence of what particular grade he is guilty.' In Jackson v. State, supra, the court uses still stronger language, and holds that /where there is evidence sufficient to raise a doubt, however slight, upon the point whether the case is' murder or manslaughter, voluntary or involuntary, the court should instruct the jury, upon these -grades of manslaughter as well as murder” In Tanner v. State, 145 Ga. 72 (88 S. E. 555), the Supreme Court-said: “The controlling question in the case is, whether the court should have charged the law of voluntary manslaughter. The rule is well settled that where under the evidence the law of voluntary manslaughter is applicable, it is the duty of the court to. charge the law upon that subject. Bell v. State, 130 Ga. 865 (61 S. E. 996); Strickland v. State, 133 Ga. 76 (65 S. E. 148). If the evidence on behalf of the defendant be true, it showed an actual assault was committed upon him by the decedent with a weapon not shown to be such as would likely'produce death,, and that the homicide took place while that assault was in progress; and the law of voluntary manslaughter was involved, and it should have been given in charge to the jury. Dennis v. State, 93 Ga. 303 (20 S. E. 315); Green v. State, 124 Ga. 343 (52 S. E. 431). There was only one shot fired, and a witness for the accused testified that the defendant shot the decedent after having been assaulted with brass knucks. We can not say as a matter of law that brass knucks is a deadly weapon. There was no evidence tending to show that the knucks was a weapon likely to produce death. If the defendant killed the decedent to prevent the commission of a serious injury less than a felony upon his person, the crime would not be murder, but voluntary manslaughter.” In Dennis v. State, 93 Ga. 303 (20 S. E. 315), it is said in the reporter’s statement: “There was testimony for defendant, that deceased was assaulting him with his knife, and was advancing towards him at-the time as he stood in the door of his own house, and that he suddenly seized a shotgun from the inside of the house and fired on deceased as the latter advanced.” The decision in that case is as follows: “As the evidence in behalf of the accused, if true, showed that an actual assault was committed upon him by the deceased, and that the homicide took place whilst that assault was in progress, the law of- voluntary manslaughter' was involved in the case, and it was error not to give it in charge to the jury.” Under the foregoing rulings, as the evidence in the instant case did not show that the knife used by deceased was a weapon likely to produce death, the court did not err in charging the j ary on voluntary manslaughter.

The verdict was authorized by the evidence; and-the judgment must be

Affirmed.

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


author: Broyles, P. J.

text:
    9809.
    McCarty v. The State.
   Broyles, P. J.

1. Under repeated rulings of the Supreme Court and of this'court, the overruling of a demurrer to an indictment can not properly be made a ground of a motion for a new trial. To enable this court to review such a judgment, direct exception to it must be taken in a bill of exceptions.

2. One of the special grounds of.the motion for a new trial is as follows: “Because, before striking the jury in said ease, counsel for movant stated’ to the court that he had just been informed .that the Miners Association, composed of a number of citizens of Bartow County, had employed counsel to assist the solicitor in prosecuting movant, which the counsel so employed admitted was true; and then movant’s counsel asked, and moved the court to hold and decide, that all jurors who were membérs or related to either of the members of said Miners Association by blood or marriage, within the ninth degree, were disqualified to sit as jurors in said case; which motion the court overruled, holding that only members of the Miners Association were disqualified, and held that other jurors were qualified to sit in said case, and required movant to strike a jury from the regular panel without inquiry as to such relationship; which judgment, holding-, and direction of the court, movant alleges was error, as being contrary to law.” Even if the ruling complained of were error (which is not here passed upon), it does not appear that the defendant was injured thereby, qince it is not shown that any of the jurors upon the panel put upon the defendant were related to any of the members of the Miners Association. .

3. The admission of testimony as complained of in the 3d special ground of the motion for a new trial, even if erroneous, was not so prejudicial to the accused as to require a new trial.

4. A special ground of the motion for a new trial complains of a remark of the court, made to the defendant’s counsel dhring ,the trial of the case and in the presence of the jury, as being prejudicial to the accused. Inasmuch, however, as it does not appear that any motion for a mistrial was made because of the remark, no question for this court to pass upon is raised. Stapleton v. State, 19 Ga. App. 38 (13) (90 S. E. 1029), and cases there cited.

Decided November 16, 1918.

Accusation of misdemeanor; from city court of Cartersville— Judge Aubrey. May 3, 1918.

The accused was convicted upon the charge that he did “unlawfully conduct and offer to do business as an emigrant agent without registering and procuring the license required by law and without paying the tax required by law.” He excepted to the overruling of his motion for a new trial. The grounds referred to in paragraphs 3, 5, and 6 of the decision are as follows:

(3) The court admitted, over the objection that it was hearsay and hurtful to the accused, the following testimony of Bob Chism (who, as the movant contends, was the main witness for the State) : “Tom Littlejohn came to my house that night after he got out of jail, and he said he heard I-flickered on this, and that Mr. McCarty [the accused] said if I did not pay him the $10 back I would be a dead negro.” The testimony was given in answer to the question, “State-whether or not Tom Littlejohn or Mr. Pettitt or anybody else had made any threats to you about that $10.” On objection interposed the solicitor argued that, as counsel for the accused had sought to “shadow” the testimony of Chism because of the fact that he came from the common jail, it was competent to show “that he was kept there by the sheriff for safekeeping, threats having been ihade on his person, as he claimed, by Tom Little-john; and we expect to prove he is an agent of Mr. Pettitt, who is an agent of Mr. McCarty.”

5. Under repeated decisions of this court and of the Supreme Court, where a special ground of a motion for a, new trial is so incomplete as to re- , quire the reviewing court to refer to the brief of the evidence, or other portions of the record, it will not be considered. -This ruling disposes of the 5th special ground of the motion for a new trial.

6. While there are some slight inaccuracies in the excerpt from the charge of the court, as complained of in the 6th special ground of the motion . for a new trial, these inaccuracies, when considered with the charge as a whole and in the light of the facts of the case, do not require a new trial.

7. There is no merit in the ground of the motion for a new trial which sets up that since the trial of the ease the main witness for the State “has committed the crime of burglary, and has been indicted, plead guilty, and sentenced therefor to ten years in the penitentiary.”

8. The verdict is authorized by the evidence and has been approved by the trial judge.

Judgment affirmed.

Bloadworth and Harwell, JJ., concur.

(5) The court charged the jury “that admissions and confessions should be scanned with extraordinary care; and with reference to the alleged conversation that took place in the presence of Mr. Callaway [sheriff], if your minds rest satisfied beyond a reasonable doubt that the defendant heard that conversation and did not refuté the statement made, that would be a quasi admission of guilt on his part.” Error was assigned, because the instruction is not law; and because it was an expression by the court of an opinion that the alleged conversation actually occurred, and that if the accused heard it the circumstances required an answer or denial by him, and that his failure to deny was a quasi admission of his guilt.

(6) The court charged: “If you find under this evidence, beyond a reasonable doubt, that the defendant was employing or seeking to employ laborers to be employed beyond the bounds of this State, you would be authorized to find him guilty, whether they aimed to return or not. . . If you find he was employing or hiring or seeking to hire labor to be employed be3rond the bounds of the State, he would be an emigrant agent, and he would be guilty under the law.” The movant contends that the instruction is not law, and is confusing and misleading; and that it is error for the reason that “it is not unlawful for one to employ or attempt to employ, even without a license, laborers to work for himself beyond the limits of the State temporarily, or, when he does procure or attempt to procure them for himself, to remove beyond the limits of the State, with a design to settle elsewhere; and one so doing is not an emigrant, agent, or carrying on or attempting to carry on the business of an emigrant agent.”

A. W. Fite, for plaintiff in error.

Watt H. Milner, solicitor, contra.


text:
    9849.
    English v. The State.
   Harwell, J.

1. In tlie light of the qualifying note of the trial judge, no merit appears in the 2d ground of the amendment to the motion for a new trial.

2. Under the facts in this case and in the light of the entire charge of the court, the excerpt from the charge upon tliq subject of direct and circumstantial evidence, as complained of in the 3d special ground of the motion for new trial, even if erroneous,- was not harmful.

Decided November 16, 1918.

Accusation of carrying concealed weapon, etc.; from city court of Macon—Judge Guerry. May 7, 1918.

Julian F. Urquhart, for plaintiff in error.

Will Gunn, solicitor, contra.

3. Taken with its context, and the undisputed fact that the pistol in question, at the time of its discovery, was concealed in the defendant’s “grip,” the excerpt from the charge of the court complained of in the 4th special ground of the motion for a new trial was not erroneous.

4. The charge of the court upon .the admissibility of evidence obtained through illegal search and seizure was not erroneous for any of-the reasons assigned in the 5th special ground of the motion for a new trial, when the excerpt therein complained of is considered in connection with the entire charge. Smith v. State, 17 Ga. App. 693 (88 S. E. 42) ; Calhoun v. State, 17 Ga. App. 705 (88 S. E. 586).

5. No merit appears in the 6th ground of the amendment to the motion for a new trial.

6. The alleged newly discovered evidence, being wholly cumulative and impeaching in character, affords no ground for a new trial.

7. There was some evidence to authorize the verdict, and the court did not err in overruling the motion. for new trial.

Judgment affirmed.

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


text:
    9968.
    Langston v. The State.
   Harwell, J.

1, The charge of the court respecting the time limit within which the defendant could be convicted, while inaccurate, is in this case harmless, since the date of the offense as laid in the indictment and as shown by the testimony was well within the statutory period and prior to the finding of the indictment. Adams v. State, 22 Ga. App. 252 (2) (95 S. E. 877).

2. The instructions of the court on the subject of alibi, set out in the 2d and 3d special grounds of the motion for a new trial, are not erroneous, when viewed in the light of the entire charge and of all the facts of the case; and if further instructions were desired upon the subject, an . appropriate timely written request therefor should have been tendered.

3. The court having instructed the jury as to the weight and effect of the defendant’s statement, and upon the subject of reasonable doubt, it was not error to Omit to charge specifically upon the theory of reasonable doubt growing out of the statement of the accused alone, or when considered in connection with the other evidence in the ease. Rouse v. State, 136 Ga. 363 (5), 364 (71 S. E. 667). See also Vaughn v. State, 88 Ga. 731, 738 (16 S. E. 64). This ruling disposes of the 4th and 5th special grounds of the motion for a new trial.

4. Inasmuch as the State’s evidence made out a case of assault with -intent to rape, and the accused relied upon the defense of alibi, a charge upon the subject of assault, or assault and battery, was not only not required, but would have been wholly inappropriate. Accordingly, no merit appears in grounds 6 and 7 of the motion for a new trial. .

Decided November 16, 1918.

Indictment for assault with intent to rape; from Jeff Davis superior court—Judge Highsmith. May 4, 1918.

S. D. Dell, for plaintiff, in error.

Alvin V. Sellers, solicitor-general, J. Marie Wilcox, contra.

5. The alleged newly discovered evidence being cumulative and impeaching in character, the court did not err in overruling the -grounds of the motion for a new trial based on such evidence.

S. The evidence authorized the verdict.

Judgment affirmed.

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


text:
    10062.
    Lowe v. The State.
    Decided November 16, 1918.
    Indictment for burglary; from Hall superior court—Judge J. B. Jones. August 10, 1918.

      Boyd Sloan, Claud B. Barrett, for plaintiff in error.

      Robert McMillan, solicitor-general, contra.
   Harwell, J.

Only the usual general grounds assign error in the motion for a new trial. There was some evidence to support the verdict, and, it having been approved by the trial judge, this'court can not interfere.

Judgment affirmed.

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


text:
    10068.
    Daniel v. The State.
    Decided November 16, 1918.
    Indictment for larceny; from Jefferson superior court—Judge Hardeman. August 6, 1918.

      Evans & Evans, for plaintiff in error.

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

1. The grounds of the motion for a new trial based upon objections to the admission of testimony being expressly disapproved by the trial judge, can not be considered.

2. The evidence connecting the defendant with the theft of the cow, as charged, together with the confessions, was sufficient to authorize the verdict.

Judgment affirmed.

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


text:
    10080.
    Durden v. The State.
    Decided November 16, 1918.
    Indictment for manufacturing intoxicating liquor; from Emanuel superior court—Judge Hardeman. July 22,. 1918.

      F. H. Saffold, for plaintiff in error. /

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

1. The circumstances in this ease relied upon by the State to corroborate the testimony of the accomplice, as to the defendant’s participation in the manufacture of the intoxicating liquor, while slight, were passed upon by the jury under full and careful instructions of the trial judge upon the weight and-effect of such evidence; and this court can not say, as a matter of law, that these corroborating circumstances were insufficient. See Chapman v. State, 109 Ga. 165 (34 S. E. 369).

2. The special ground of the motion for a new trial, not being argued in the brief of counsel for the plaintiff in error, will be treated as abandoned, notwithstanding the statement in the brief that “the other grounds of the motion for new trial are insisted upon.” See Barfield Music House v. Harris, 20 Ga. App. 42 (92 S. E. 402).

3. The evidence authorized the verdict, which has the approval of the trial judge, and this court can not interfere. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, P. J., and Blood/worth, J., concur.


text:
    10092.
    PALMER v. THE STATE.
    Decided November 16, 1918.
    1. If the names of but two witnesses appear on an indictment, it will be presumed, in the absence of evidence to the contrary, that the charge therein is founded solely upon their testimony. If on demand for “a list of witnesses” the accused is furnished a list containing the names of the witnesses sworn before the grand jury, with the names of additional witnesses, he is not entitled to a continuance on the ground of surprise because some of the names were not on the indictment.
    2. There was no error, in the circumstances, in not declaring a mistrial because of statements in the arguments of counsel for the prosecution.
    Indictment for fornication; from Decatur superior court—Judge Harrell. August 17, 1918.

      W. V. Custer, for plaintiff in error.

      R. C. Bell, solicitor-general, M. E. O’Neal, F. A. Hooper, contra.
   Bloodworth, J.

The constitution of the State of Georgia provides: "Every person charged with an offense against the laws of this State shall be furnished, on demand, previously to his arraignment, with a copy of the accusation, and a list of the wit-, nesses on whose testimony the charge against him is founded.” Art. 1, sec. 7, par. 5 (Civil Code of 1910, § 6360; Penal, Code, §§ 8, 970. From this it will be seen that when a person is charged in this State with a violation of a criminal law, and demands a list of the witnesses, he is entitled to a list of those only “on whose testimony the charge against him is founded.” The 3d headnote in Keener v. State, 18 Ga. 194 (63 Am. D. 369), is as follows: “A defendant in a criminal case is entitled only to a list of the witnesses sworn before the grand jury.” See also Inman v. State. 73 Ga. 369 (1). When the names of two witnesses only appear on an indictment, it will be presumed, in the absence of proof to the contrary, that the charge against the defendant is founded alone upon 'their evidence. We do not think a defendant who has “demanded a list of witnesses,” and is furnished one which contains the names of more witnesses'than appeared before the grand jury, is entitled to a continuance on the ground of “surprise.” “The record shows that the accused was furnished with the list of witnesses which he wa's entitled to demand. The solicitor-general was under no obligation to disclose to him other witnesses whom he might see fit to call during the progress of the trial.” Echols v. State, 101 Ga. 533 (39 S. E. 14).

Twice during the progress of the trial did the accused ask the court to declare.a mistrial,—first, “because during the argument of M. E. O’Neal, Esq., of counsel for the State, counsel made the following statement to the jury, to wit: Tt is not too late for Mr. Custer (referring to movant’s counsel) to plead guilty for the defendant.’” When this motion was made the court said: “I will instruct the jury that they will not regard the statement made by counsel to the effect that it was not too iate for counsel for the defendant to plead guilty for his client; the jury will not let that statement influence them in the consideration of the case -at all. I overrule your motion to declare a mistrial.” Second, “because during the concluding argument, the honorable solicitor-general made the following statement to the jury, to wit: That by reason of this illicit intercourse a child was born, of which, as the State contends, the defendant was the father.’ ” The statement of counsel on which the first motion was based was a statement of a well-settled legal proposition, and was not manifestly improper and prejudicial to tlie cause of the accused, especially under the instructions given the jury by the court. Macon &c. Ry. Co. v. Parker, 127 Ga. 471 (6), 480 (56 S. E. 616). The original statement of the solicitor-general, of which complaint is made, is based upon evidence in the record. Neither this nor what was stated by Mr. Bell, the solicitor-general, as his recollection of what he said, would justify the court in declaring a mistrial. No new fact was introduced. “It is not. impassioned oratory which the law condemns and discredits in the. advocate, but it is the introduction of facts not disclosed by the evidence, which requires the judge to use his power of declaring a mistrial!” Western & Atlantic R. Co. v. York, 128 Ga. 689 (58 S. E. 184); Ellis v. State, 124 Ga. 91 (1), 93 (52 S. E. 147); Patterson v. State, 124 Ga. 408 (1), 409 (52 S. E. 534); Taylor v. State, 121 Ga. 354 (7), (49 S. E. 303). The statement by the solicitor-general as repeated by Mr. Custer, of counsel for the defendant, as follows, “You also stated, as to what would be the effect of a verdict by this jury, that a verdict by this jury would be to identify Will Palmer as the father of the child,” was expressly withdrawn by the solicitor-general, and the jury were instructed by the court not to consider the statement. If it was error for the solicitor-general so to make the statement quoted by Mr. Custer, this was cured by the action of the solicitor and the judge. See Goodman v. State, 122 Ga. 111 (3), 118 (49 S. E. 922).

Judgment affirmed.

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


text:
    10093.
    Ryals v. The State.
    Decided November 16, 1918.
   Harwell, J.

1. “Any statement or conduct of a person, indicating a consciousness of guilt, where such person is, at the time or thereafter, charged with or suspected of crime, is admissible against him upon his trial for committing it.” Eixon v. State, 130 Ga. 479, 482 (62 S. E. 14),’ and cases therein cited.' Under this ruling the 4th and 5th special grounds of the motion for a new trial, complaining of the admission of certain testimony regarding incriminating statements made by the defendant, are without merit.

2. There was some evidence to support the verdict finding the defendant guilty of manufacturing’ liquor; and, it having the approval of the trial judge, this court is without authority to interfere.

Judgment affirmed.

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

Indictment for- manufacturing intoxicating liquor; from Decatur superior court—Judge Harrell. August 17, 1918.

W. V. Custer, for plaintiff in error.

R. C. Bell, solicitor-general, F..A. Hooper, contra.


text:
    10098.
    Pritchard v. Mayor and Alderman of Savannah.
    Decided November 16, 1918.
    Certiorari; from Chatham superior court—Judge Meldrim. June 27, 1918.

      Robert L. Colding, for plaintiff in error.

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

There being some evidence to support the finding of the recorder, his answer to the writ of certiorari being untraversed, and no error of law being assigned, the judge of the superior court did not err in overruling the certiorari.. See Miles v. Savannah, ante, 20 (97 S. E. 275).

Judgment affirmed.

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


text:
    9608.
    Burke v. The State.
    Decided November 20, 1918.
    Accusation of possessing whisky; from city court of Albany— Judge Clayton Jones. February 22, 1918.

      Pope & Bennet, for plaintiff in error.

      Cruger Westbrook, solicitor, contra.
   Bloodworth, J.

The grounds of the amendment to the-motion for new trial are without merit, there is sufficient evidence to support the verdict, which the trial judge has approved, and this court will not interfere.

Judgment affirmed.

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


text:
    9743.
    NATIONAL ROSIN OIL AND SIZE COMPANY v. SOUTH ATLANTIC COAL COMPANY.
    Decided November 20, 1918.
    The evidence authorized a finding that the minds of the parties did noj; medt upon the terms of the alleged contract on which the defendant’s plea was based, and therefore that there was no sjich contract.

      Complaint; from city court of Savannah—Judge Freeman. April 11, 1918.

      Osborne, Lawrence & Abrahams, for plaintiff in error.

      Adams & Adams, contra.
   Broyles, P. J.

This action was brought by the South Atlantic Coal Company against the National Eosin Oil & Size Company, upon an open account for coal sold and delivered to the latter corporation in the month of October, 1916, amounting to $1,349.61. In its answer to the petition the defendant denied the indebtedness alleged, and filed a plea of recoupment, setting up that by reason of the breach by the plaintiff of an alleged contract to supply the defendant with coal for the period of one year from October 1, 1916, to October 1, 1917, the defendant had been forced to buy coal in the open market to meet its requirements, and, as a result thereof, had been damaged in the sum of $10,803.65. By consent of the parties the case was tried before the judge of the city court of Savannah without a jury. Upon the trial it appeared that negotiations for the supplying of coal by the plaintiff to the defendant for the season of 1916-17 were in progress between the parties for some months previous to September, 1916, and that finally, upon September 28, 1916, the plaintiff sent to the defendant a letter as follows: “Beferring to your favor of the 26th inst., we beg to hand you herewith contract made out in accordance with your letter, and which we trust you will find in order.” The contract referred to was as follows:

“Savannah, Ga., September 28, 1916. Contract covering sale of coal made by the South Atlantic Coal Company of Savannah, Georgia, to the National Eosin Oil & Size Co. of Savannah, Georgia. Quantity: Their annual requirements, estimated at between 4,000 and 5,000 tons.

Duration: From Oct. 1, 1916, to Oct. 1, 1917.

Brand: Sacco. Virginia coal.

Quality: Understood and agreed that if at any time quality is not up to standard the National Eosin Oil & Size Co. have the option of cancelling contract.

Price: Three dollars ($3.00) per ton of 2,000 pounds f. o. b. ‘ cars their factory, Savannah, Ga.

Weights: All cars to be reweighed at Savannah and such

weights to govern settlement. Expense of weighing cars to be borne by seller.

Conditions: Deliveries to be made according to the requirements of buyer. Buyers are hereby guaranteed a constant and regular supply, of coal during the life of this contract, and on any coal reloaded from wharf of sellers due to non-arrival of cars. Sellers further guarantee that none but Sacco Virginia coal will be delivered under this contract except upon the written permission of the buyer.

(Signed) South Atlantic Coal Company, by L. G. Armstrong, President.

National Rosin Oil & Size Co., by G. W. Campbell, Asst. Treas.” On October 3, 1916, the defendant sent to the plaintiff a letter, the material portions of which are as follows: “New York, Oct. 3rd, 1916. The South Atlantic Coal Co., Savannah, Ga. Gentlemen: We thank you for complying with our desire in drawing up your contract which has now been signed and your copy is returned_ herewith. We have notified our Mr.- Carmichael that this new contract is now in effect, and we presume he will get in touch with you regarding shipments. We trust the coal will be fully up to our expectations, and remain, Yours truly, G. W. Campbell, Asst. Treas. GWC/M. We note you omitted in the last paragraph after the words ‘due to non-arrival of cars’ the rest of the sentence as follows: ‘the same delivered price of $3.00 to govern.’ -Please confirm our understanding that the omitted line will be considered by you as being in the contract. Also the sample car was screened coal, and price was quoted on screened coal, so we understand screened coal will be delivered us. G. W. C.” (Italics ours.) It appears, from the undisputed testimony upon the trial, that there is a material difference between “screened” and “run-of-the-mine” coal, and that the former'coal commands a higher price. It is also apparent that the purported contract was silent as to whether “screened” or “run-of-the-mine” coal was to be delivered. As we see it, the postscript of the defendant to its letter of October 3, Just quoted, specifically qualifies its acceptance of the proposed contract, making it conditional that “screened” coal was to be delivered. This attempted change in the contract was promptly repudiated by the plaintiff, in its letter of October 5, 1916, which reads as follows: “Acknowledging receipt of your favor of the 3d inst. beg to advise that it will be satisfactory to us to insert the words ‘the same price of $3.00 to govern’ after the words ‘due to non-arrival of cars’, in oxtr contract. In regard to the screened coal, we beg to say that we submitted to you a proposition on screened coal months ago and had you try a car; you gave us no satisfaction or answer to our proposition, but on the other hand continued to try other kinds of coal. The screen coal that we had submitted you has been withdrawn from this market and the price quoted you in the contract is for Sacco Virginia run of the mine coal. If it is not satisfactory advise us at once and it will be agreeable to us to cancel this contract, but we must have a decision from you at once whether you have accepted our contract as signed or not.” (Italics ours).

The defendant failed to reply to this letter (which demanded a reply from the defendant if the latter sought to enforce any right under the contract), or to other communications of the plaintiff on the same subject, until November 3, 1916, when it sent the following telegram to the plaintiff: “Your letter October 31st received. Our contract with you dated September 28th speaks for itself.. Your letter Oct. 5th asks reply unless satisfactory, therefore we made no reply. Referring to your letter October 27th and 31st we decline to recognize obstacles referred to and shall cover for your account and sue for difference and damages including ppssible shutdown, unless you wire immediately that contract will be fulfilled.” In the meantime, however, the defendant had ordered and received from the plaintiff seven cars of coal, which were charged to him at the market prices then in effect, and it is these carloads of coal which are the subject of. the suit.

It is clear that the minds of the parties never met in the very essential particular of the hind of coal to be supplied under the proposed contract. It is true that the document purporting to set out all of the terms and conditions of the contract was.formally signed by both parties, but under that contract the plaintiff agreed to furnish “Sacco Virginia” coal, which, according to its letter of October 5, was “run of the mine,” while the defendant-was expecting that, “screened” coal would be supplied, upon which basis its, signature was attached. This contemporaneous stipulation was in-writing and accompanied the formal “contract” returned to the plaintiff^on October 3, and this conditional acceptance—the condition being declined by the other party—did not and could not constitute a complete, valid contract. The contemporaneous written qualification, although written upon a separate paper, was as much a part of the proposed contract as if it had been written into the “contract” on the same paper. To arrive at the intent~of the parties, and to determine whether a completed contract was made, the two writings must be considered together. See, in this connection, Civil Code, § 5789; Marietta Savings Bank v. Janes, 66 Ga. 286; Montgomery v. Hunt, 93 Ga. 438 (2) (21 S. E. 59); Buck v. Bank, 104 Ga. 660 (2) (30 S. E. 872); Cable Co. v. McFeeley, 7 Ga. App. 435, 436 (66 S. E. 1103); International Harvester Co. v. Morgan, 19 Ga. App. 723 (92 S. E. 35). The fact that the plaintiff itself, in its letter declining to agree to the defendant’s suggested change as to screened coal, refers to the purported contract as a “contract” and suggests its cancellation is immaterial, and is insufficient, in connection with the other facts disclosed, to show that the proposed contract had in fact been completed. It appears from the correspondence introduced that both parties referred to the purported contract as a “contract” before it had ever been executed by the defendant. The fact that the plaintiff’s letter calls it a “contract” does not make it one, especially since in the same letter the plaintiff expressly refuses its assent to the new condition written into the contract by the defendant. Robinson v. Weller, 81 Ga. 704, 708 (8 S. E. 447).

The court, exercising by consent the functions of both judge and jury, did not err in finding .that there had been no meeting of the minds of the parties upon a very essential element of the contract, and that the contract was accepted by the defendant with a condition;’that accordingly no valid contract existed between them; that necessarily, therefore, the defendant’s plea of recoupment should not prevail, and that under, the facts of the case the plaintiff was entitled to recover the markét value of the coal delivered to the defendant.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    10030.
    Fisher v. The State.
   Bloodworth, J.

The evidence is conflicting. The jury rendered a verdict of guilty, which the trial judge refused to set aside. It can not be said that the verdict is without evidence to support it. This court, therefore, is without power to set it aside on the general grounds of the motion for new trial.

Decided November 20, 1918.

Accusation of misdemeanor; from city court of Carrollton_ Judge Beall. July 2, 1918.

Emmett Smith, for plaintiff in error.

Willis Smith, solicitor, contra.

■Judgment affirmed.

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


text:
    10040.
    Ridley et al. v. The State.
    Decided November 20, 1918.
    Indictment for manufacturing whisky f from Bandolph superior court—Judge Worrill. July 13, 1918.

      Charles W. Worrill, for plaintiff in error.

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

1. There is no merit in the special grounds of the motion for a new trial.

2. There is evidence authorizing the verdict, no error of law appears, and the finding of the jury having the sanction of the trial judge, under the repeated and uniform rulings of this and the Supreme Court, a reviewing court is powerless to interfere.

Judgment affirmed.

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


text:
    10050.
    Easterling v. The State.
    Decided November 20, 1918.
    Accusation of possessing intoxicating liquor; from city court of Beidsville—Judge Collins. July 30, 1918.

      A. S. Way, H. H. Elders, for plaintiff in error.

      C. L. Cowart, solicitor, contra.
   Bloodworth, J.

1. The excerpt from the charge of the court, complained of in the motion for a new trial, contains a correct statement of the .law. If a fuller charge was desired an appropriate and timely written request should have been made therefor. “A correct statement, of the law applicable to the case is not erroneous because the court failed in the same connection to give the jury other and fuller instructions.” Killian v. State, 19 Ga. App. 750 (2) (92 S. E. 227) ; Hill v. State, 18 Ga. App. 259 (89 S. E. 351), and cases cited.

2. There was ample evidence to support the verdict.

Judgment affirmed.

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


text:
    9506.
    Dunwoody v. The State.
    Decided November 23, 1918.
    (Certiorari granted by the Supreme Court.)
    Conviction of manslaughter; from Chattooga superior court—■ Judge Wright. January 19, 1918,

      C. D. Rivers, J. M. Bellah, Maddox & Doyal, for plaintiff in error. Claude H. Porter, solicitor-general, contra.
   Bloodworth, J.

1. “The accused was not convicted of murder, but was convicted of manslaughter. Eor this reason the instruction on the subject of malice could' not have been prejudicial to the accused in any of the respects or for any of the reasons pointed out in the assignments of error.” Simpson v. State, 12 Ga. App. 292 (77 S. E. 105); Gray v. State, 12 Ga. App. 634 (77 S. E. 916) ; Land v. State, 11 Ga. App. 761 (2) (76 S. E. 78).

2. The statement of the. accused, in connection with all the evidence in the ease, authorized the charge on voluntary manslaughter. A part of the statement of the accused was: “I was out there in the road looking to be shot or killed any moment, or hurt in some way, and that was 'the only way I could stop him and save myself.” “If one kills another under the fears of a reasonable man that the deceased was manifestly intending to commit a personal injury upon him, amounting to a felony, the killing is justifiable homicide; if the prisoner* is .under similar fears of some injury less than a fejony, the offense is manslaughter, and not murder.” Keener v. State, 18 Ga. 194 (10) (63 Am. D. 269); Battle v. State, 103 Ga. 53 (4), 58, 59 (29 S. E. 491) ; Mixon v. State, 7 Ga. App. 805 (4) (68 S. E. 315) ; Simpson v. State, supra.

3. The excerpt from the charge complained of in the 5th ground of the amendment to the motion for a new trial is slightly inaccurate, but, when it is considered in connection with the entire charge and the facts of the case, the error is not so material as to require the grant of a new trial, as the verdict was for voluntary manslaughter only.

4. There was evidence to supptfrt the verdict, and the judgment overruling the motion for new trial must be •

Affirmed.

Broyles, P. J., concurs. Stephens, J., not presiding.


text:
    9638.
    Ashley-Price Lumber Company v. Henry.
   Broyles, P. J.

1. Where counsel for either party in any. pase, civil or criminal, desires the trial judge to write out his charge and read it to the jury, a request therefor must be mad'e before argument begins. Penal Code (1910), § 1056; Homer v. State, 6 Ga. App. 667 (65 S. E. 701). ‘

(a) The charge so written out and read to the jury should be filed, as soon as delivered, with the clerk of the court. Civil Code (1910), § 4848.

Decided November 23, 1918.

Rehearing denied December 13, 1918.

'Action for damages; from Coffee superior court—Judge Summerall. February 9, 1918.

J. W. Quincy, Levi O’Steen, F. Willis Dart, for plaintiff in error.

W.W. Bennett, Dickerson, Kelley & Roberts, Chastain & Henson, contra.

(6) Failure of the trial-judge to hand his written charge, immediately after he has read it to the jury, to the clerk of the court to be filed, is reversible error, unless the evidence demanded the verdict returned. Forrester v. Cocke, 6 Ga,. App. 829 (65 S. E. 1063).

(c) Where a special ground of a motion for a new trial complains that the trial judge refused to write out his charge, after being requested to do so by counsel in the case, it must be affirmatively shown in 'the ground of the motion that the request was made before the argument began. However, where (as in the instant case) the complaint is, not that the judge refused the request of counsel to write out his charge and read it to the jury, but that the judge, after complying with such request, failed to hand' the charge at once to the clerk of the court to be filed, and retained it in his possession until the following day, when he filed it with the clerk, it will be conclusively presumed that the request was made in due time, unless the contrary is shown affirmatively in the motion or by a certificate of the trial judge.

(d) Where such a request had been made to the judge, no waiver of the right to have the charge reduced to writing and read to the jury, or to have it filed with the clerk of the court as soon as it had been read, resulted from the fact that the counsel who made the request informed the judge that he did not insist upon the judge’s writing out the charge in pen and ink, but that it would be perfectly satisfactory for the judge to dictate his charge to'the court reporter, have it typewritten, and read this typewritten charge to the jury; and that the judge adopted this suggestion.

2. In the instant case, instead of filing with the clerk of the court the typewritten charge as soon as it had been read to the jury, the judge retained it in his possession and did not deliver it to the clerk until the following day. This was reversible error, and a new trial, of the case is required. '

3. It is deemed unnecessary to consider the other assignments of error.

Judgment reversed.

Bloodworth, J., concurs. Stephens, J., not presiding.


text:
    9649.
    Wilson et al. v. Wilson.
   Bloodworth, J.

1. The grounds of the amendment to the motion for a new. trial are without merit.

2. The plaintiff sued L. R. Wilson and Mrs. Gertrude Wilson on a prom-. issory note, alleging that it was transferred to him for value and before maturity. L. R. Wilson, after having filed a plea in which he denied that plaintiff was a bona fide holder for value and also set up an affirmative defense, admitted a prima facie case and assumed' the burden of proofs When he did this it “became incumbent upon him to sustain the burden of overcoming that case and of proving the truth of his own allegations. Civil Code [§ 5746], This he signally failed to do.” The court therefore properly directed a verdict for the plaintiff. Hunter v. Sanders, 113 Ga. 140 (38 S. E. 406) ; Branch v. American Agricultural Chemical Co., 22 Ga. App. 52 (95 S. E. 476); Thomas v. Bishop, 20 Ga. App. 594 (93 S. E. 169).

Decided November 23, 1918.

Complaint; from city court- of Wrightsville — Judge Blount February 23, 1918.

A. L. Hatcher, for plaintiff in error.

Faircloth & Claxton, contra.

Judgment affirmed.

Broyles, P. J., concurs. .Stephens, J., not presiding.


text:
    9651.
    9653.
    Pasco Flour Mills Co. v. City Supply Co.
    Allen v. City Supply Co.
   Broyles, P. J.

1. There is no merit in the motion to dismiss the bill of exceptions.

2. Upon the demurrer, attacking, the plaintiff’s petition on both general and special grounds, the court entered a judgment, dated February 13, 1918, “that the demurrer to paragraph 3 of the declaration be sustained unless amended within 10 days from this date so as to meet the objections raised by the demurrer.” The plaintiff; within ten days ' thereafter, filed in the office of the clerk of the court a paper purporting to be an amendment to the petition, and served a copy thereof upon opposing counsel. This amendment, however, was filed without an order of- the court, and was never allowed by the court. On March 15, 1918, the defendant filed a motion to strike the purported amendment from the files, on the ground that it was filed without an order, of the court and had never been allowed by the court, and therefore did not constitute an amendment to the petition. This motion contained also a prayer that the case be dismissed and stricken from the docket. The motion was heard on March 15, 1918, and the court thereupon passed the following order: “The plaintiff having filed his amended motion [proposed amendment] in the clerk’s office within the time allowed for amending his petition,.and having served defendant’s counsel with a copy of the same at the time of filing the original, the within motion to. dismiss is hereby overruled.” Held: The motion to strike the proposed amendment and to dismiss the case should have been sustained. A proposed amendment can not properly be so filed as to become a part of the record until it has been allowed by the court. It was not a sufficient compliance with the order of the court, requiring the plaintiff to amend the petition within ten days, to file a proposed amendment without an allowance thereof. Johnson v. Vassar, 143 Ga. 702 (85 S. E. 833), and authorities there cited; Chattanooga Boiler & Tank Co. v. Robinson, 14 Ga. App. 73 (80 S. E. 299). Paragraph 3 of the petition was vital to the plaintiff’s ease. With that paragraph stricken, and nothing substituted by way of amendment, the petition set forth no cause of action and should have been dismissed.

Decided November 23, 1918.

Action for breach of contract; from city court of Carrollton—■ Judge Beall. February -13, 1918.

The motion to dismiss the writ of error was on the ground that “none of the rulings complained of amount to a final disposition of the cause, and if they had been sustained by the court they would not have amounted to a final disposition of the cause.”

C. E. Roop, for plaintiffs in error.

B. F. Boykin, contra.

Judgment reversed.

Bloodworth, J., concurs. Stephens, J., not presiding.


text:
    9655.
    Central of Georgia Railway Company v. Newton.
    Decided November 23, 1918.
   Broyles, P. J.

1. The court did not err in overruling the demurrer to the petition as amended.

2. This court, under all the facts of the ease, can not hold that the verdict for the plaintiff ($1,519.17) was excessive.

3. This not being a case where the entire injury sued for was to the peace, happiness, or feelings of the plaintiff, it was reversible error for the court to instruct the jury that they should weigh “the worldly circumstances of the parties.” Georgia Railroad v. Homer, 73 Ga. 251 (1), 257; Atlanta Consolidated Street Ry. Co. v. Hardage, 93 Ga. 457 (3) (21 S. E. 100) ; Southern Railway Co. v. Phillips, 136 Ga. 282 (71 S. E. 414).

4. The plaintiff, in addition to suing for special elements of damage, such as lost time, doctor’s bills, and damage to an automobile, sued! for personal injuries and for pain and suffering. It was therefore reversible error for the court to charge the jury, in substance, that they had the right to add to any damages they might find for the plaintiff seven per cent, interest for such time as they saw proper to do so, taking into consideration the time of the injury, or the length of time that the damages had been withheld. Western & Atlantic Railroad Co. v. Young, 81 Ga. 397 (1), 412 (7 S. E. 912, 12 Am. St. R. 320).

5. Except as indicated above, no reversible error appears to have been committed upon the trial of the case.

Judgment reversed.

Bloodworth, J., concurs. Stephens, J., not presiding.

Action for damages: from Jasper superior court—Judge Park. March 16, 1918.

Harris, Harris & Witman, A. S. Thurman, Greene F. Johnson, for plaintiff in error.

Samuel H. Sibley, Eugene M. Baynes, contra.


text:
    9662.
    WALTON COUNTY v. DEAN, solicitor-general.
    Decided November 23, 1918.
    “All officers charging costs, and exacting payment from the pocket of the citizen, must always show the authority of the law to do so.”

      {a) “A sheriff is not entitled to pay for any services as costs unless payment for the same be expressly and specifically provided for by statute.”
    (6) “Acts providing for costs and salaries are to be strictly construed.”
    Money rule; from Walton superior court—Judge Cobb. February 2'8, 1918.

      O. Roberts, for plaintiff.

      R. L. Cox, for defendant.
   Bloodworth, J.

The County of Walton brought a rule against Dean, solicitor-general, to distribute funds in his hands. By agreement the judge “passed upon the issues of law and fact as presented in the pleadings, under an agreement between the attorneys for the parties that the facts set forth in the pleadings were true.” The petition shows that the sheriff of Walton county presented a bill to the county commissioners, as follows: “Bailroad fare, $18.16; arrest and jail fees, $11.80; auto hire, $4.00; two days’ service, $4.00; hotel bill, $4.00; total, $41.96.” This bill was paid by the commissioners. It grew out of a criminal charge against Paul Malone, to which the accused entered a plea of guilty, and on which he was fined $150.

“A demand was made upon said solicitor by the board of commissioners for the amount expended in bringing back said Paul Malone to Walton county as itemized above, and payment refused, Walton county claiming that the sheriff had a lien for his expenses and cost against the fund arising from said fine in the hands of the solicitor, and Walton county, having paid said bill, became subrogated to the rights of the sheriff as against said fund; also that Walton county was entitled to be reimbursed, from the fine so collected, for such expenses as were paid out in' bringing back said fugitive for trial.” The solicitor-general answered the rule and contended that the county was entitled to only $11.80, this being the amount of the items for arrest and jail fees, but was not entitled to be paid the other items. The presiding judge passed the following order: “It is ordered and adjudged by the court, that the solicitor-general, W. 0. Dean, pay over to the plaintiff, out of - the money in his hands arising from the fine imposed on Paul Malone, the sum of $11.80 for the arresting fee, and jail fees accruing in said case, expended by plaintiff to reimburse the sheriffs and the county. The court finds that the other items .of expense in paragraph ■2 of plaintiff’s petition, to wit) railroad fare, $18.16; auto hire, $4.00; 2 days’ service, $4.00, and hotel bill, $4.00, making a total of $30.16, are -legitimate items and charges against Walton county, incurred in bringing the defendant Paul Malone from another county in the State to the County of Walton, for trial, but that such items do not create a lien on the funds so arising and in the hands of the solicitor-general, in favor of the sheriff, W. B. Stark, or in favor of the plaintiff, Walton county, for reimbursement; and that such remainder of said funds, after the payment of the amount of $11.80, arresting_ and jail fees as aforesaid, the remainder in the hands of the solicitor-general, is subject to be appropriated to his claim, and the claims of the other officers mentioned in answer, according to the priority of their liens. And it is ordered and adjudged by the • court that after' the solieitor-general, W. O. Dean, pays to the County of Walton, the plaintiff in this case, the said sum of $11.80, arresting and jail fee as aforesaid, that he be discharged.”

The rulings in the foregoing order are correct. Granting that the county could be subrogated to the rights of the sheriff (but" upon this we are not passing), there could be no recovery by the county in. this case, unless the sheriff was entitled to recover. In the case of Davis v. State, 33 Ga. 533 (1), Judge Jenkins, speaking for the court, said: “The term "costs/ as applied to proceedings in a court of justice, has, in the acceptation of the profession, and by the practice of all courts, in Gebrgia, a well understood meaning. It includes all charges, fixed by statute, as compensation for services rendered by officers of the court in the progress of the cause.” See also Wellmaker v. Terrell, 3 Ga. App. 796 (60 S. E. 464). “At common law costs were not recoverable, eo nomine; and costs, as such, in criminal cases were unknown. In the absence of statutory authorization, no right to or liability for costs exists. 11 Cyc. 24, 267; 13 Cent. Dig. 14; State v. Kinne, 41 N. H. 238. ‘All officers charging costs, and exacting its payment from the ¡Docket of the citizen, must always show the authority of the law to do so.’ Stamper v. State, 11 Ga. 643.” Leonard v. Eatonton, 126 Ga. 64 (54 S. E.963). See also Bowies v. Malone, 139 Ga. 116 (76 S. E. 854). “Acts providing for costs and salaries are to be strictly construed.” Walker v. Sheftall, 73 Ga. 806 (a). “A sheriff is not entitled to pay for any services as costs unless payment for the same be expressly and specifically provided for by statute.” Clark v. Clark, 137 Ga. 189 (2) (73 S. E. 15). Under these rulings the items, “two days’ service, $4.00; hotel bill, $4.00,” even.if specific enough to be considered as pay for bringing back a fugitive from justice, and as actual necessary expenses, could not be collected from the person convicted, for the statute expressly provides that these shall b'e paid out of the county treasury. That ■there could be no recovery for railroad fare and automobile hire, as such, is clear from the ruling in tils'ease of Peters v. State, 9 Ga. 109. In subdivision one of the opinion in that case (p. 111), Judge Warner says: “We are not aware of. the provisions of any fee bill, regulated by statute, which authorizes the officer to charge railroad fare in' conveying a prisoner from one place to another. The officer is allowed to charge mileage for conveying a prisoner, and if he chooses to convey him on a railroad,- he does so upon his own responsibility; still, he can only charge the mileage allowed by the statute. From what point the defendant was conveyed, or what distance, the record does not inform us. The charge is too indefinite in another respect—‘Prisoner’s railroad fare and other expenses .’ What those other expenses were, we do not know. The defendant, who pays costs, is entitled to hav.e the specific items, and the amount of each separately and distinctly stated.” In addition to the above the record shows that at the time the solicitor-general •made answer to the rule, there' was due him for services in prosecuting criminal cases in Walton county $477.01, for which amount he held approved insolvent cost bills. The record shows also that there were similar insolvent cost bills held by other officers of the court. As to the disposition of fines such as the one distributed in this case, see Penal Code (1910), §§ 1116, 1117, 1118. See also Gordon County Commissioners v. Harris, 81 Ga. 719 (8 S. E. 4-27); Bartlett v. Brunson, 115 Ga. 459 (41 S. E. 601); Randolph County v. Ellis, 130 Ga. 121, 123 (60 S. E. 458).

Judgment affirmed.

Broyles, P. J., concurs, Stephens, J., not presiding.


text:
    9718.
    WOOD v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY et al.

    Decided November 23, 1918.

      1. The motion to dismiss the writ of error- is denied'.
    2. The court did not err in sustaining the motion for a nonsuit and dismissing the case.
    Action for damages; from Columbia superior court—Judge H. C. Hammond. March 25, 1918.
    The suit was for damages on account of alleged negligence in not furnishing a safe place of work.
    The motion to dismiss the writ of error was on the ground that the evidence in the bill of exceptions was not properly briefed.

      L. D. McGregor, Hill & Adams, for plaintiff.

      Gumming & Harper, J. B. Burnside, P. B. Johnson, for defendant. -
   Bloodworth, J.

The bill of exceptions in this case contains the following: “The same being an action for damages for personal injuries. The petition in this case contained two counts. The first count contained allegations of an action for damages based upon the law of Georgia; the second count contained allegations of an action for damages based upon the Federal employer’s liability act of 1908 .(35 Stat. 65, U. S.' Comp. St. 1916, 8657-8665). .Counsel for the defendants, before any evidence was offered or introduced, admitted to the court and the plaintiff in error that the plaintiff at the time of his injury was engaged in interstate commerce, and his right of recovery, if any, would be controlled by the Federal employer’s liability act. The plaintiff in error then proceeded with the trial of his case upon the second count of his petition. The plaintiff -then introduced evidence to sustain the allegations as contained in the second count of his petition. VHien/ the plaintiff thereafter rested -his case counsel for the defendants made an oral motion of nonsuit in said case to the court; whereupon his Honor Henry C. Hammond, judge presiding, after argument of counsel, sustained said motion of non-suit and would not permit the case to be considered by the jury. The plaintiff then and there excepted to the action of the court in granting the nonsuit, and now excepts and assigns said action as error.”

There was no one present at the time of the injury except the •plaintiff, and his evidence in reference thereto was substantially as follows: “I was car-inspector and repairer for the Georgia Railroad during' October, 1915, at Campania, in Columbia county, Georgia. As car-inspector and. repairer .my duties consisted in inspecting cars and repairing them, if needed, and to keep them up; to look after the safety appliances and see that they were safe to go over the road. On the 19th of October, 1915, while weighing a ear, the end of the draw-head, what is known as the yoke or the epd of the pole, was jerked orit and the car was shoved into the side-track. 'I inspected the car and found it broken. It was a ‘Georgia box-ear’ loaded with brick. The car was not taken from the scales and placed at any part of the yard, but just kicked out from the scales - and turned on to the middle track. When I repaired this car it was 565 feet from the little platform they have at Campania, on the west side, toward Harlem. There were two tracks north of the main line, and the car that I repaired was on the side-track next to the main line. On October 19, 1915, I notified my superior in Augusta,' Georgia, of the fact that this ear was in need of repairs, and ordered material for the purpose of making said repairs. The material for this purpose was received on the morning of October 20, 1915, and I began the work of repairs about one o’clock in the afternoon, and it was about 5:30 o’clock when I finished.” After stating how the repairs were made, the plaintiff proceeded as follows: “It was necessary to take this draw-head out and to remove it from the track where the car was, because it was ‘safety first’, according to the rule. The 'ear couldn’t pass over this draw-head, as it was liable to catch into the brake-beam on the "ear and cause a wreck. At the time I was injured I was endeavoring to remove this draw-head from the track, putting it beyond the track. I took up- the draw-head to put it on the outside, to leave this safe, on account of switchmen falling over it if left there; When I picked up my left fóot. I stepped over the rail, this first rail here, and then I went to make a'step with my right foot and it went down into a soft hole which was full of water. You could not tell anything about it, and my pants caught on a stob on the side of this, and in attempting to make the step it tripped me and threw me into the hole. I fell on my left side mostly. The end of the draw-head that coupled around was up this way (indicating to the jury), and in going down it went off of balance that way, with the heavy end down, and the yoke' down this way (indicating to the jury), and struck me this way (indicating to the jury). This occurred at six o’clock in the evening, and it was dark. I could not have discovered the location of that . hole or the stob at that time of evening, carrying that draw-head. I suppose the draw-head Weighed about 300 or 400 pounds.”

“I went to Campania as car-inspector and repairer upon the 20th of April, 1914. While working at Campania I had never repaired a car before at the point where I repaired the car at the time of my injury. If I ever did I don’t remember it. I don’t •think I ever did. I was not familiar with the premises where I repaired this car. I would ride over it every morning in a car. I didn’t notice the track, because that was not my business. I had a place' there at the crossing where it was level and a good place to work on cars. I generally had them placed where it was a good place to work on them. . . At Campania the railroad-track is crossed by the public road, and there is where I call the office, as there is an old box-car there which I use for an office and keep material in. This is where I generally do repairing. I usually did repairing about 150 feet above the road-crossing, and on the other side down below the crossing, towards Augusta. Where I did the repair work on the car at the time I was injured was about 400 feet beyond where I generally did repair work. . . 'They could not pull that car to the'usual place of repairing, because the draw-head was broken and they could not get hold of it. . •. I had the draw-head on my arm, something like this (indicating to the jury). I stood up on my one foot with a weight like this draw-head. I never did 'go back to look at the stob. I only know about it catching my pants.' I don’t remember about seeing the stob. It was dark, but I felt it; It was wood and not iron. I didn’t feel the stob until I went down by it in the hole. It had been jerked up and left unfixed in there, in where the track was. It was when I went to draw my foot out of this'hole that I found that it was on this stob. I don’t know how the hole got there or who put it there. ... I had taken about 15 steps from the place where I picked up this draw-head to where I. was injured. I picked it up in the middle of the track, and then I took it across the aisle up into the other track, some 10 Or 15 feet, I suppose. . . If the train-crew had seen fit they could have placed this car for me in the usual place of repair work, but they didn’t do it. I never asked the train-crew to place this ear. It was my duty to fix the ear where I found it.” The rest of the evidence of the plaintiff related to his age, physical condition, and pain and suffering.

It is not deemed necessary to elaborate the rulings státed in the headnotes.

Judgment affirmed,.

Broyles, P. J. concurs. Stephens, J., not presiding.


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

text:
    9734.
    Dean v. Atlantic Coast Line Railroad Company.
   Broyles, P. J.

The evidence showed that the homicide sued for resulted from the running of one of the defendant’s trains, and raised the presumption that the defendant was negligent in each and every respect alleged in the petition. This presumption, however, was completely rebutted by other evidence elicited from the plaintiff’s witnesses. This evidence disproved all of the proximate acts of the defendant’s negligence as alleged in the petition, and the court did not" err in awarding a nonsuit.

Judgment affirmed.

Bloodworth, J., concurs. Stephens, J., not presiding.

ON MOTION FOR REHEARING.

Broyles, P. J.

Even if (as contended by counsel for plaintiff in error in the motion for a rehearing, but which is not conceded by this court) the evidence of the plaintiff’s witnesses did not disprove all of the proximate acts of the defendant’s negligence as alleged in the petition, but on the contrary affirmatively established 'some of these acts, it also clearly and indisputably showed that, by the exercise of ordinary care, the plaintiff’s son, for whose homicide the action was brought, could have avoided the consequences of the defendant’s negligence. Accordingly, the plaintiff was not entitled to recover, and the court did not err in awarding a nonsuit. White v. Central Railroad &c. Co., 83 Ga. 595 (10 S. E. 273); Jenkins v. Central Railroad &c. Co., 89 Ga. 756 (15 S. E. 655) ; Central Railroad &c. Co. v. Newman, 94 Ga. 560 (21 S. E. 219); Comer v. Shaw, 98 Ga. 543 (25 S. E. 733); Gordon v. Atlantic Coast Line Railroad Co., 21 Ga. App. 812 (95 S. E. 311); Southern Ry. Co. v. Hogan, 131 Ga. 157 (62 S. E. 64); Moore v. Southern Ry. Co., 136 Ga. 872 (72 S. E. 403), and eases there cited.

Decided November 23, 1918.

Rehearing denied December 13, 1918.

Action for damages; from Early superior court—Judge Worrill. April 2, 1918.

Glessner & Collins, for plaintiff.

A. H. Gray, Pope & Bennet, for defendant.

Rehearing denied.

Bloodworth, J., concurs. Stephens, J., not presiding.


text:
    9801.
    Supreme Council of The Royal Arcanum v. Quarles.
   Broyles, P. J.

1. The court did not err in repelling as evidence the following part of the verdict of the coroner’s inquest held upon the death of the insured: “Said wounds was caused by bullets fired from gun in hands of Benjamin T. Drumright in self-defense.” The verdict of a coroner’s jury has no probative value whatever as evidence, is binding upon no one, and can not prejudice the right of any person. It is merely advisory to the officers charged with the execution of the public law in cases of homicide, and in addition may require the coroner to issue a warrant for the arrest of the person suspected of the homicide. Smalls v. State, 101 Ga. 570 (28 S. E. 981, 40 L. R. A. 369).

(a) Such a verdict may be received in evidence as a part of the proof of the death of the insured’, but it is not even prima facie competent as tending to prove the cause of death, no matter by which party it is offered. 13 Corpus Juris, 1256; City Five Cent Savings Bank v. Pennsylvania Fire Insurance Co., 122 Mass. 165.

2. The court properly excluded from the evidence so much of the certificate of the death of the insured, issued by the Missouri State Board of Health, as recited that the killing of the insured was justifiable homicide. ^his was clearly hearsay evidence and was inadmissible on the same principle that applies to the verdict of a coroner’s- jury.

3. The court did not err in rejecting as evidence statements of the policeman who killed the insured, made a short time after the killing, to another police officer over the telephone, and also at the place of the homicide. Under the facts of the ease these statements were not part of the res gestae and were not legal evidence.

4. If the court erred in excluding any or all of the other evidence, as set forth and complained of in the bill of exceptions, the' error w:as not harmful to the plaintiff in error. If all of this evidence had! been admitted, the verdict rendered would still have been demanded.

5. The court did not err in directing a verdict for the plaintiff for the full amount sued for in the petition as amended. Und'er the facts of the ease it was incumbent upon the defendant to sustain its affirmative plea by showing that the insured, at the time of his death, was engaged - in the violation of some law of the State of Missouri which was punishable by death or imprisonment in the penitentiary; and this burden it failed to carry. The evidence, with the legal inferences arising therefrom, showed, among others, the following facts: The insured was shot and killed in a house of ill-fame in St. Louis, Missouri, by a policeman named Drumright. The only other eye-witnesses of the homicide were two women inmates of the house. None of these persons testified in the instant case. The policeman who did the killing had taken off his uniform in the house and at the time of the homicide had on a bath-robe. He did not reside there, and was evidently a social visitor in the house. The evidence introduced, including the physical facts, together with all legal inferences arising therefrom, did not authorize a finding that at the time of the homicide the insured was violating any law of the State of Missouri, the violation of which was punishable by death or imprisonment in the penitentiary. Accordingly the court, upon motion of the plaintiff, properly directed the verdict rendered.

Decided November 23, 1918.

Action upon insurance policy; from city court of Floyd county— Judge Nunnally. March 23, 1918.

Brewster, Howell & Heyman, Mark Bolding, for plaintiff in error.

Benny & Wright, contra.

Judgment affirmed.

Bloodworth, J., concurs. Stephens, J., not presiding.


text:
    9810.
    Daniel v. Keen.
    Decided November 23, 1918.
    Appeal; from Laurens superior court—Judge Kent. May 7, 1918.

      Hal B. Wimberly, for plaintiff.

      T. E. Hightower, for defendant.
   Bloodworth, J.

The motion for a new trial in this case is not in the record. However, the bill of exceptions, duly certified, recite^ that the motion for a new trial was submitted on the general grounds only. There is evidence to support the verdict, which has the approval of the trial judge, and this court can not interfere.

Judgment affirmed.

Broyles, P. J., concurs. Stephens, J., not presiding.


text:
    9824.
    Louisville and Nashville Railroad Company et al. v. Hixon, administratrix.
   Broyles, P. J.

1. This was an action for the negligent homicide of the plaintiff’s husband, an employee of the defendant railroad company, and was'brought under the Federal employer’s liability act. There was consequently no presumption of negligence against the defendant. The evidence introduced, viewed' in the light most favorable to the plaintiff, d'id not authorize a finding that the defendant was guilty of any of the several acts of negligence specified in the amended petition. The verdict in favor of the plaintiff was therefore contrary to law and the evidence, and the court erred in overruling the general grounds of the motion for a new trial.

Decided November 23, 1918.

Action for damages; from Taliaferro superior court—Judge Walker. May 22, 1918.

Samuel H. Sibley, for plaintiff in error.

C. H. Cohen, J. P. Stephens, A. G. Golucke, contra.

2. The ruling in the preceding note being controlling in the case, a discussion of the remaining assignments of error is unnecessary.

Judgment reversed.

Bloodworth, J., concurs. Stephens, J., not presiding.


text:
    9827.
    Scott v. Georgia Railway & Power Company.
    Decided November 23, 1918.
    Action for damages; from Fulton superior court—Judge Ellis.' April'20, 1918. ' '
    The plaintiff was a colored passenger in a street-car in which four seats at the front of the car were reserved for white passengers. These seats were vacant, the remaining seats were occupied by colored persons, and there was no white passenger in the ear when he entered it. He sat in one of these vacant seatsj- and the conductor required him to leave the seat. He sued the street-railway company for damages, alleging that he was greatly humiliated and was put in fear of bodily harm by the conduct and manner of the conductor ; that it was a gross violation of his rights' and of the duty which the defendant owed to him as a passenger, and that there was no reason or justification for the act of the conductor in requiring him to vacate his seat. On the trial he testified:- “The conductor said, ‘You can’t sit here,’ and I said, ‘There is no seats back there,’ and he said, ‘It don’t make any difference. Get back. •You can’t sit there.’ And I got up %nd went on back there, . . and stook on the back. I asked him when this kind of law happened—was made, and he said, ‘It .has been made for sometime;’ and I didn’t say any more to him.” Before the conductor, spoke to the plaintiff the motorman told him that he could not sit in that seat. He testified that they talked loud to him and could have been heard out of the car; that he was afraid of the conductor, and when they spoke to him “that way,” and ordered him to leave the seat and go back, he felt humiliated and wrongly treated.
   Bloodworth, J.

1. There is no merit in grounds 4, 5, 7, and 8 of the amendment to the motion for new trial.

2. Even if it was error to admit in evidence the copy of the rule of the defendant company, as complained of in ground 6 of the motion for a new trial, it was harmless, as the officer of the company by whom the rule was promulgated had already testified, without objection by plaintiff’s counsel, as to what the rule was and that it was a rule of. the company.

3. The evidence failed to sustain the petition, and the judge did not err in directing a verdict for the defendant.

Judgment affirmed.

Broyles, P. J., concurs. Stephens, J., not presiding.

The defendant introduced in evidence, after its witness Matthews had testified, a rule directing conductors on “route 3” to reserve the four front seats (two on each side of the. aisle) for white passengers. The plaintiff was a. passenger on this route. Matthews testified: “I and Mr. Simmons are the. superintendents of the transportation department of the Georgia Bailway & Power Company. We all make the rules governing the traffic. We passed this rule, dated 5th day of December, 1916 [prior to the occurrence in question], addressed to conductors on route 3. We posted that bulletin. . . That rule was passed in order to conform to the laws of the State of Georgia that require you to separate white „ and colored passengers as far as practicable. It is peculiarly applicable to route 3, on account of the large number of negroes who ride that line. We have to reserve some space for the white people that we catch in the middle of the town and who ride—the few white 'people who do. There are a good many ladies included in the few white passengers that do patronize that line.” The conductor and the motorman testified that in asking the plaintiff to move from the seat occupied by him, they were acting in obedience to the rule. The motorman testified that they told him of the rule when he was asked to move. “I just asked him in a kind way.” The written copy of the rule was admitted in evidence over the objections that it was not signed by an officer of the corporation, and that it was not a reasonable rule,

C. D. Maddox, Samuel A. Massell, for plaintiff-cited: Penal Code 1910, § 533 et seq.; Metropolitan R. Co. v. Johnson, 90 Ga. 506 (6); Park’s Code, § 5926.

Colquitt & Conyers, for defendant, cited: Central Ry. Co. v. Motes, 119 Ga. 923 (1), 929-30; Penal Code, § 534 et seq.


text:
    9829.
    Harris v. Georgia Railway & Power Company.
    Decided November 23, 1918.
    Action for damages; from Fulton superior court—Judge Pendleton, April 4, 1918.
    The plaintiff, when driving an oil-tank wagon southwardly along the west side of Lee street in the city of Atlanta, turned his wagon to the left, and drove on the street-car track in order to pass an ice-wagon which was standing between the track and the sidewalk; and when he had passed the ice-wagon and was turning his wagon to the right, leaving the street car track, a street-car approaching from behind, and which he had seen before he drove on-the track, struck the left rear-wheel of his wagon with such force that he was thrown from the wagon and injured. He sued the street-railway company for damages, alleging that it was negligent as follows: (1) that the street-ear was being run at a reckless and dangerous rate of speed, to wit, at the rate of 30 miles an hour or more; (2) that no bell or gong was rung to warn him of his danger; (3) that the defendant’s servants on the car, after seeing his danger, made no effort to stop the car, so as to avoid injury to him, and their failure to do so was wilful, wanton, and malicious; and (4) that the car was running at a speed of more than 15 miles an hour, in violation of a municipal ordinance. On the trial the court, on motion of the defendant’s counsel, at the conclusion of the evidence introduced by the plaintiff, granted a nonsuit.
    The plaintiff testified: “When I got about half way of the block I seen an ice-wagon standing on my route that looked like it was about two feet or two and a half feet from the curb, which made it necessary for me to drive around with two wheels on the track to.pass this wagon, and I looked out to see if a car was coming. It was about half a block or over to my rear. I thought I had sufficient time to drive around that wagon; it is a good long block. I got started around that wagon, and just as soon as I got at the head of the mule I pulled around the wagon and commenced to pull’ off. I commenced to get off on my right, and about that time I heard a noise behind me, and I took my whip and pulled up my lines to try to hit my mule to hurry, and the car hit me about that time, hit the rear hind wheel on thq left-hand side and threw me out. . . When I drove on the car track I was just about as close as I could get to the ice-wagon to get around the wagon without hitting it, before I drove upon the track. That is when I looked back to see if the car was coming. . ... When I looked back it looked to me like the car was at least half a block or more back. . . I was about half way that block, or a little over. ... I reckon it was 60 or 70 feet . . before I got to the half-way stop. . . When I looked back that car was just crossing Oglethorpe [avenue]', just fixing to cross Oglethorpe.” As to the distance to Oglethorpe avenue and the length of the block, the estimates given by the plaintiff when he first testified were somewhat lower than the measurements given by him in subsequent testimony. He first testified that the distance to Oglethorpe avenue was about 300 feet, and the block was at least 400 feet long. He further testified: “This was daylight, early in the morning, but the sun was up. The street was straight. The car was coming towards me, but I could not tell how fast it was coming. . . I know it was so far behind that I thought I had the right of way. I couldn’t swear that it was 200 feet back or 100 feet or 20 feet, because I never measured it. . . I know it was running mighty fast when it hit me, or it wouldn’t have hit me so hard. . . After looking back and seeing the ear about 200 feet (exactly how far I couldn’t tell) and coming fast (but how fast I couldn’t tell), and knowing that I had the right of way, I turned to go around the ice-wagon, and, before I got around, the ear hit me. As to its coming either faster than I thought it was, or that it was closer to me than I thought it was—I don’t know; I guess it was; it was coming faster than I thought it was, I reckon. I guess that is right, that it was either coming faster than I thought it was, or that it was closer than I thought it was. I don’t know whether that is right or not. . . . I am satisfied that car was not closer than I thought'it was; it might have been coming faster than I thought it was. I know it was coming faster than I thought it was, if you will have it that way. Lee street, between this halfway stop and Oglethorpe avenue, has a little slant. . . The car was coming down a slight slant towards me. About the corner of Oglethorpe, I think, is where the highest point is in there; it was a very little slant, I suppose about two feet difference from tho corner down there. . . As to how many feet I had to drive to get around that wagon, I reckon the team would he about 18 feet somewhere, from the back of the wagon to the end of the mule. . . I had to go 28 or 30 feet while the car was going over 200 feet, to strike my wagon. My mule was walking when I got on the track.” Later, after having.made measurements, the witness testified, he found that the distance between Oglethorpe avenue and Beecher street (the next cross-street south) was 849-1/2 feet, and from.the half-way stop to Beecher street was 389 feet; also:.“Ffom Oglethorpe to that rise between.Oglethorpe and where I was struck is 185 feet—to the rise; from the crest of the rise to the water plug was 219 feet; that is where the ice-wagon was.” The witness stated that he heard no gong at or before the time the car struck his wagon; that the noise as to which he had testified was a rumbling noise, like that of a car. There was evidence as to the extent of his ’ injuries, and as to his earnings, etc. The driver of the ice-wagon testified that he saw the plaintiff start around the ice-wagon and saw the car coming, and “knew that there was going to be a collision, the rate the ear was running; . . there was no way not to have a' collision. . . . Mr. Harris [the plaintiff] had done gone around then.” It was testified that the street-car was “coming down that grade . . about 30 miles an hour, something like that.” A city ordinance limiting the speed of street-railroad ears at that place to 15 miles an hour was introduced in evidence.
   Broyles, P. J.

Under the facts of the case the court erred in awarding a nonsuit.

Judgment reversed.

Bloodworth, J., concurs. Stephens, J., not presiding.

In the brief of counsel for the plaintiff it is stated that the trial judge, in granting the nonsuit, said that the case was controlled by the decision in Athens Ry. & Electric Co. v. McKinney, 16 Ga. App. 741.

Arminius Wright, for plaintiff, cited:

Savannah Electric Co. v. Ellarbee, 6 Ga. App. 137(2); Howard v. Savannah Electric Co., 140 Ga. 484, and citations; Columbus Street R. Co. v. Beny, 142 Ga. 670; Macon Ry. & Light Co. v. Barnes, 121 Ga. 443-5; Ga. Ry. & El. Co. v. Joiner, 120 Ga. 905; Perry v. Macon Consol. Street R. Co., 101 Ga. 400, 407, 411; Freeman v. N. C. & St. L. Ry., 120 Ga. 469 (2); Western & Atlantic R. Co. v. Ferguson, 113 Ga. 708; Brunswick &c. R. Co. v. Gibson, 97 Ga. 497; A. K. & N. R. Co. v.. Gardner, 122 Ga. 82 (4); Williams v. Southern Ry Co., 126 Ga. 711; Cen. Ry. Co. v. Pelfry, 11 Ga. App. 119(3); Southern Ry. Co. v. Wiley, 9 Ga. App. 251; C. & W. C. Ry. Co. v. Johnson, 1 Ga. App. 441; 1 Thomp. Neg. (White’s Supp.) §§ 238, 239, 227; Civil Code, § 5746; Kelly v. Strouse, 116 Ga. 872, 881; Pendleton v. Atlanta Lumber Co., 3 Ga. App. 714; Athens Ry. & Elec. Co. v. McKinney, 16 Ga. App. 741 (distinguished).

Colquitt & Conyers, for defendant, cited:

Atlanta Ry. & Power Co. v. Owens, 119 Ga. 835; W. & A. R. Co. v. Hunt, 116 Ga. 450; Athens Ry. & Elec. Co. v. McKinney, supra; Southern Ry. Co. v. Davis, 132 Ga. 818, 819; Hearn v. Cen. Ry. Co., 22 Ga. App. 1.


text:
    9833.
    Campbell v. Hutcheson.
    Decided November 23, 1918.
    Certiorari; from Fulton superior court—Judge Bell. March 29, 1918.

      Payne & Jones, for plaintiff in error. .

      John R. Burress, contra.,
   Broyles, P. J.

1. Failure to file a claim, under the provisions of the Revised Statutes of the United States, § 3460 (U. S. Comp. St. 1916, § 6362), to property seized by the collector of internal revenue for a violation of the revenue laws will not estop the true owner from asserting his title by an action of trover brought against the purchaser of the property at a sale held by the collector of .internal revenue; provided he has done nothing to mislead the purchaser as to his relation to the property and the title. McLennan v. Graham, 106 Ga. 211 (32 S. E. 118), and cases there cited; Lawless v. Orr, 122 Ga. 276 (50 S. E. 85).

(a) In the instant case the evidence authorized a finding by the. judge of the municipal court of Atlanta, exercising the functions of both judge and jury, that the owner of the property was not present when it was sold by the collector of internal revenue, and that he had done nothing, before or at the sale, to mislead the purchaser as to the owner’s true relation to the property and the title.

2, The constitutional question argued in the brief of counsel for the plaintiff in error was not raised in the petition for certiorari, and accordingly the case will not be transferred to the Supreme Court.

3. It does not appear that the judge of the superior, court erred' in overruling the certiorari.

Judgment affirmed,.

Bloodworth, J., concurs. Stephens, J., not presiding.


text:
    9836.
    Allen v. Kendrick.
    Decided November 23, 1918.
    Eviction; from Taliaferro superior court—Judge Walker. May 27, 191-8.

      Hawes Cloud, for plaintiff in error.

      A. G. Golucke, J. A. Mitchell, contra.
   Broyles, P. J.

It does not appear from tlie record that in refusing to grant a continuance of the ease the trial court abused its wide discretion. This being the only question argued in the brief.of counsel for the plaintiff in error, the judgment of the court below is

Affirmed.

Bloodworth, J., concurs. Stephens, J., not presiding.


author: Beoyles, P. J.

text:
    9952.
    Throckmorton v. The State.
    Decided November 23, 1918.
    Rehearing denied December 13, 1918.
    Indictment for burglary; from tlaralson superior court—Judge Bartlett. June 11, 1918.

      Griffith & Matthews, for plaintiff in error.

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

1. It is no cause of challenge to the array that some of the jurors on the panel put upon the accused have just served as jurors upon the trial of another person, indicted for a like offense growing out of the transaction involved in the indictment against the accused; that a verdict of guilty was rendered in that case, and that the witnesses and evidence in the pending case would be the same as in the former one. The proper method of objecting to such jurors would be by challenges to the polls, if they qualified upon their voir dire. Edge v. State, 8 Ga. App. 125 (68 S. E. 623) ; Schnell v. State, 92 Ga. 459 (17 S. E. 966); Humphries v. State, 100 Ga. 260 (28 S. E. 25).

(a) In the instant case the special challenge to twenty-four named jurors of the panel of forty-eight was made by the accused before he plead'ed to the merits of the indictment and before the panel was put upon him, and was in the nature of a challenge to the array, and, under the foregoing ruling, the court did not err in overruling it.

2. The first special ground of the motion for a new trial can not be considered, since the note of the trial judge attached thereto amounts to a disapproval of the facts there stated.

3. The evidence in support of the defense of alibi was not of such clear and strong probative value as to require a charge upon the law of alibi, especially in the absence of a timely and appropriate written • request therefor. See, in this connection, Paulk v. State, 8 Ga. App. 704 ( 70 S. E. 50).

4. While the evidence connecting the defendant with the burglary was circumstantial, it was sufficient to exclude every reasonable hypothesis save that of the guilt of the accused.

Judgment affirmed.

Bloodworth, J., concurs. Stephens, J., not presiding.