author: Harwell, J.

text:
    8941.
    WATSON v. THE STATE.
    The indictment alleged that the murder was committed by hitting and striking the deceased on the head with a certain soda-water bottle. The trial judge charged the jury that if it should appear that the killing was done, not with a soda-water bottle, but with another instrument, of similar nature, — a blunt instrument, which would inflict a wound of the same character as might have been inflicted with a soda-water bottle, then the averment in the indictment would be ■ sufficiently proved, and they would be authorized to convict. The motion for a new trial complained of this instruction and of other parts of the charge, and the refusal of certain requests to charge, all of which present the same question, ffelcl, that the charge of the court was not erroneous; and, no error of law being committed, and the verdict of voluntary manslaughter being authorized by the evidence, the trial judge did not err in overruling the motion for a new trial.
    Decided January 22, 1918.

      Conviction of manslaughter; from Barrow superior court— Judge Cobb. May 15, 1917.
    John Watson was indicted for murder and was convicted of voluntary manslaughter. The indictment alleged that the murder was committed “by hitting and striking said Jim Mahaffey with a certain soda-water bottle on the head.” In the defendant’s motion for a new trial it was alleged (in addition to the general grounds) that the court erred in charging the jury as follows: “It is incumbent upon the State in the trial of a criminal case to prove to the satisfaction of the jury, beyond a reasonable doubt, all of the material averments in the bill of indictment. If an indictment in a ease of murder alleges the weapon to be of a certain character, then the evidence must satisfy the jury, beyond a reasonable doubt, that the killing was done with the weapon alleged in the indictment, or a weapon of similar nature. If you believe from the evidence, beyond a reasonable doubt, that the killing was done in the present case with a soda-water bottle, and also believe that the other material parts of the indictment have been proved to your satisfaction beyond a reasonable doubt, the State would have carried the burden which rested upon it. And if it should appear to you that the killing was done, not with a soda water bottle, but with another instrument, of similar nature, — a blunt instrument, which would inflict a wound of the same character of wound that might have been inflicted with a soda-water bottle, — if you believe this beyond a reasonable doubt, then that averment in the indictment would be sufficiently proved. If, however, you believe from the evidenec in the case and all the circumstances in the case, taking into consideration the defendant’s statement, that the killing was not done with a soda-water bottle and not done with an instrument of like nature of a soda-water bottle, or you have any doubt on your mind as to whether it was done with a similaf instrument, or similar weapon, then you should give the defendant the benefit of the doubt and find in his favor on this- allegation of the indictment, which would be a material averment in the indictment, or if you have a reasonable doubt as to any of the material allegations in the indictment, give the defendant the benefit of the doubt and find a verdict of not guilty.” It is alleged also that the judge erred in refusing to charge as.follows: "If you believe from the evidence, when considered in connection with the defendant’s statement in this case, that the defendant struck the deceased with a brick, and you believe from the evidence that this was the mortal blow, and that it was from the effect of this blow with a brick that the deceased died, you would not be authorized to find the defendant guilty in this ease.” It is further alleged that the court erred in refusing to charge as follows: “Every allegation in the indictment must be proven beyond a reasonable doubt. Hence,- if there is a reasonable doubt resting on your minds as to which of two instruments (if the evidence in this case shows the use of two instruments) caused the death of the deceased, it would be your duty to give the defendant the benefit of the doubt as to which of the two instruments inflicted the mortal wound.”

      Lewis 0. Bussell, for plaintiff in error.
    IF. 0. Bean, solicitor-general, contra.
   Harwell, J.

(After stating the foregoing facts.) The evidence for the State disclosed that the homicide' was committed with á soda-water bottle, and the evidence for the accused tended to the theory that there was a second altercation, and that the fatal blow was made with a brick. The special ground of the motion for a new trial, which complains of certain excerpts from the court’s charge and of the Tefusal to charge as requested, make practically one question, and that is, did the learned trial judge err in charging that “if it should appear that the killing was done, not with a soda-water bottle, but with another instrument, of similar nature, — a blunt instrument, which would produce a wound of the same character that might have been inflicted with a soda-water bottle,” a conviction could be sustained, under the allegations of this indictment; or, in other words, there would be no fatal variance between the allegations and the proof? The able counsel for the defendant earnestly insists that there would be a fatal variance, that the State, having alleged that the instrument was a soda-water bottle, would be held to proof of that, but he cites no Georgia case directly sustaining that contention.

The case nearest in point in this State, and in fact the only .one so far as we have been able to find, is that of Trowbridge v. State, 74 Ga. 431. That was an indictment charging assault with intent to murder by using “an axe, a weapon likely to produce death.” The prosecutor testified that he was struck with an axe. One .of th; defendants claimed that it was done with a rock. The defendants were convicted of assault and battery, and moved for a new trial on numerous grounds, the substance of which is stated in the opinion. The court said: “The prosecutor proved that the assault was made with the weapon charged in the indictment, and although the defendants proved that it was made with a different weapon, this only brought about a conflict of evidence, and the jury had a right to believe the prosecutor instead of the defendant’s witnesses. At best it is not indispensable to prove the precise weapon set forth in the indictment; it is sufficient if both were weapons likely to produce death, and were capable of inflicting the same character of injury. 2 Bish. Crim. Procedure, §§ 514, 659 and citations.” That decision has never been overruled, doubted, or criticised, so far as we can find, and is, we think, controlling upon the question raised in the instant case. If it be said that the question was not distinctly made there and that the statements in the opinion are obiter, it is nevertheless, as an expression from the Supreme Court, so persuasive as to justify our acceptance of it as the law until otherwise decided. This opinion by Mr. Justice Hall in the Trowbridge ease, supra, seems to be almost unanimously upheld by the courts of other States and by the textbook writers who have written anything on the subject. Hpon examination of the decisions .cited they sustain the texts. .

“Where the instrument of death alleged and that proved are substantially of the same character, capable of inflicting practically the same nature of injury in substantially the same manner, there is no variance. The question in each case is whether the nature and character of the injury and the manner and means of inflicting it as proved are practically and substantially, though not identically, the same as that alleged.” 11 Standard Ene. Proc. 594, 595, citing cases sustaining the text, from Alabama, Illinois, Indian Territory, Kentucky, Maine, Massachusetts, Mississippi, Nebraska, New Hampshire, New Jersey, North Carolina, Oklahoma, Tennessee, Texas, and Washington. Knife and razor similar. May v. State, 110 Ark. 432 (162 S. W. 43). See also Elliott v. State, 4 Okla. Cr. 224 (111 Pac. 820, 140 Am. St. R. 683); Hernandez v. State, 32 Tex. Cr. 271 (22 S. W. 972). “It is the received 'doctrine that in homicide cases, where the indictment alleges the killing was done with a gun, proof can be made under such allegation that the killing was done with any firearm.” Taylor v. State, 44 Tex. Cr. 547 (72 S. W. 396), and other States. Piece of plank alleged, piece of iron proved; variance not necessarily fatal. State v. Weddington, 103 N. C. 364 (9 S. E. 577).

In the case of State v. Gould, 90 N. C. 666, in which it was contended that there was a variance between the instrument with which the mortal wound was inflicted and the- one charged in the bill of indictment, the court said: “The bill charges that the wound was given with a rock, and the proof rather tended to show that it was inflicted with a stick. It can make no difference rvhether the deceased was struck with a rock or a stick. Eor it is held that where the instrument of death laid in the indictment and that proved are of the same nature and character, and the method of the operation is the same, though the instrument is different, there is no variance.”

In Jones v. State, 137 Ala. 12 (34 So. 681), it was held: “Under an indictment which charges that the defendant killed the deceased by cutting him with a knife or by stabbing him with a knife, a conviction may be had if it be proved that some other instrument was employed which occasioned a wound of the same kind as the instrument charged; and a charge which so instructs the jury asserts a correct proposition of law and is free from error.” “On a trial under an indictment for murder, which charges that the deceased was killed by being stabbed with a knife, a charge is erroneous and properly refused which instructs the jury that 'Unless the evidence shows to the minds of the jury beyond all reasonable doubt that the deceased came to his death by being stabbed with a knife, or cut with a knife, then you can not find the defendant guilty/ ”

In Hull v. State, 79 Ala. 33, the Supreme Court said: “The indictment charges that the assault was made with a razor. There was evidence tending to show that the wound was inflicted with a pocket-knife. The court, in the general charge, instructed the jury, in substance, that it was immaterial whether the assault was made with a razor or a pocket-knife; and refused to charge, at the request of defendant, that if the jury had a reasonable doubt as to the assault being made with a razor, they must acquit the defendant, It is sufficient, if the substance of the charge be proved, without regard to the precise instrument used. Though the indictment charges a particular weapon, the averment is substantially proved, if it be shown that some other instrument was employed, which occasions a wound of the same kind as the instrument charged, and the same consequences naturally follow.” This view is sustained by the following quotations from text-books: “The State is not in any ease held to strict proof of the weapon alleged.” 31 Cyc. 846, citing Bodgers ¶. State, 50 Ala. 103. “If a person be indicted for one species of killing, as by poisoning, he can not be convicted by evidence of a totally different species of death, as by shooting with a pistol, or starving. But where they only differ in circumstance, as if a wound be alleged to be given with a sword, and it proves to have arisen from a staff, an ax, or a hatchet, this difference is immaterial.” 3 Blackstone, 196. “The proofs need sustain only the substance of the issues. . Thus, if at the trial the weapon disclosed is not the same as charged, yet it produced the same sort of wound, followed by the same sort of death, the averment is sustained; as ‘if a wound or bruise be alleged to be given with a sword, and it prove to be with a staff or axe; or charged to be with a wooden stick and a stone is proven, the seeming variance is immaterial. So it is also where one kind of poison is averred and another. proved.” 3 Bishop’s New Cr. Pr. 333, § 514 (4). “Since the substance of the issue only must be proved, a charge of assault with a ‘basket knife’ will be sustained by evidence of an assault with a basket iron, because the two weapons produce like injuries, wlricli is the test as to "variance.” Id. 659, citing 11 N. H. 371 (35 Am. D. 495); Com. v. Walsh, 132 Mass. 8. “The proof of the means of commission of a homicide or assault need not conform strictly to the averment of such means in the indictment, provided, the means of death or mode of applying the violence be the same in kind and agree in substance with those charged. As to the allegation of the instrument by which death is inflicted, or the assault committed, there is no variance where the proof shows that another instrument than that alleged was used, where it was of a similar nature and caused the same character of wound or injury. The question in each case is whether the nature and character of the injury and the manner and means of inflicting it as proved is practically and substantially, though not identically, the same as that alleged. Thus evidence as to a dagger, sword, bayonet, hatchet, or other cutting instrument, has been held to support the averment of a knife, striking with a stick, club, metal bar, or pistol au allegation of striking with a rock; striking with a piece of iron an allegation of striking with a piece of plank; shooting with a pistol, shot-gun, rifle, musket, or any kindred weapon, an allegation of killing or assaulting with a gun; shooting with a gun an allegation of shooting with a pistol, and strangling with a scarf or cord, an averment of strangling or choking with the hands. Under an indictment charging the defendant with causing the death of the deceased by beating with a stick and whip, proof of beating by other similar instruments is admissible.” 1 Michie on Homicide, 559-561, citing numerous cases from many States. “The proof need not conform in all particulars with the allegations of the indictment as to the means causing the death. It will be sufficient if the mode of death proved agree in substance with that charged, although the weapon or instrument used be other than that averred. Where it is alleged in the indictment that a particular weapon was used, it is not permissible to prove that a weapon entirely different in its character was the cause of the death.” 10 Ene. Pl. & Pr. 128, 129. - “The substance of homicide being the felonious killing, proof of a killing, in any manner or by any means that corresponds substantially with the indictment, is sufficient. All the details of the offense need not be proved precisely as alleged. Proof of a shooting with a pistol will sustain an averment of shooting with a gun and vice versa, and proof of killing with a dagger or bowie-knife will sustain an averment of death from stabbing with a dirk, sword, or similar weapon.” Underhill on Crim. Ev. 548, § 314. “The law always has been fairly liberal to the prosecution so far as the question of variance between the instrument- of death alleged and that proved is concerned; and where the instrument laid and that proved are substantially of the same character, capable of inflicting practically the same nature of injury in substantially the same manner, there is no variance. The question in each case is whether the nature and character of the injury and the manner and means of inflicting it as proved, are practically and substantially, though not identically, the same as that alleged.” 13 R. C. L. 902, § 207. See also Russell on Crimes (8th Am. ed.) 557; 1 Gr. Ev. (2d ed.), § 140.

The writer has not overlooked the case of Fulford v. State, 50 Ga. 591, cited and relied on by the able counsel for the plaintiff in error. We can not agree with him that the decision in the Fulford case is authority for or sustains his contention. We.are aware that the strict rule requiring that the proof shall conform to the pleadings has been applied to the description of stolen property in larceny cases (see Crenshaw v. State, 64 Ga. 449), and that the same is true of certain averments in the description of other offenses, such as forgery, burglary, and perjury. It will be found that the writers on criminal law who have applied -a strict rule in making the allegata and probata conform in certain offenses are those who have laid down the more liberal rule charged by the trial judge in the instant case, touching the proof of the weapon in a murder case. See the authorities already cited. Perhaps the reason for adopting the rule which these authorities very clearly state was that it was considered that the important thing to be given in the indictment or information was the condition of the body of the slain man, that is, the character of wound found thereon. This would be such information as Tyould naturally be in the possession of the State. The knowledge of the precise weapon with which the wound was made would be in the possession of the slayer. The naming of some weapon is made, not primarily to describe the weapon, but to describe the character of the wound. The charge that the defendant did cut' the deceased with a knife is in effect a. charge that he cut the deceased, and that the kind of wound inflicted-on the body of the deceased was such a wound as a knife would make. In other words, that part of the indictment or information is simply descriptive of the character of the injury inflicted. For that reason it is a substantial compliance to show that the wound was made with a weapon which would inflict the same character of injury as that alleged in the indictment. • The rule has its limitation; the proof must show a similar weapon to that alleged, i. e. one producing the same character of injury. Whatever may be the reason for the rule, it is, in the opinion of the writer, one founded on common sense. At least it is hoary with age, and it is sufficient to say, itá lex scripta est.

In our opinion the trial judge did not err for any of the reasons complained of in the motion for a new trial. The verdict was authorized by the evidence, and the judgment overruling the mo-

tion is Affirmed.

Broyles, F. J., and Bloodworth, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    9151.
    COWAN v. BANK OF BACONTON.
    1. The right to open and conclude the argument having been claimed by counsel for the plaintiff, without objection on the part of the defendant’s counsel and without any ruling of the court being invoked thereon, the defendant, after trial, will not be heard to complain.
    2. Error can not be assigned successfully upon the court’s failure to submit to the jury instructions as to defenses not made by the pleadings. The court fully and fairly submitted to the jury the issue made by the defendant’s plea. '
    3. No error of law was committed, the verdict was authorized by evidence, and the trial judge did not err in overruling the motion for a new trial.
    Decided January 22, 1918.
    Complaint; from city court of Leesburg — Judge Martin. July 7, 1917.

      ■J. B. Hoyl, R. J. Bacon, R. H. Ferrell, for. plaintiff in error.

      Pope & Bennet, contra.
   Harwell, J.

The Bank of Baconton brought suit against DeBerry Brothers and J. C. Cowan on a promissory note. Cowan pleaded that he was surety on the note, and that “said note [the note sued on], from its date to its maturity, includes usury at the rate of ten per cent, per annum for said term, which said sum was added in the face of said note as principal, all of which was unknown to this defendant at the time he indorsed said note;” and that, as the note contains a homestead waiver, these facts discharged him from any liability on the note. The bank filed an amendment admitting that the note contained usury, and that there was a homestead waiver in the note, but alleging that Cowan knew of the usury in the note at the time he signed it, and for that reason was not released from liability. The bank assumed the burden of proof and claimed the right to open and conclude the argument. The only issue in the case, therefore, was whether or not Cowan knew, at the time he signed the note as surety, that it included usury, as alleged. In an amendment to the defendant’s plea it is stated that he admits a prima facie case and assumes the burden of proof, and claims the opening and conclusion; but the record does not show that the defendant objected when the plaintiff assumed the burden of proof and took the opening and conclusion of argument, or that any ruling of the court was invoked as to this.

There is no merit in the 4th ground of the motion for a new trial. If any error was committed in ruling out the testimony offered by the defendant, it was not such harmful error as would require the grant of a new trial.

The 6th ground of the motion complains that the court erred in permitting the plaintiff to open and conclude the argument. The note of the court as to this ground shows that the plaintiff assumed the burden, took the opening and conclusion without any objection on the part of defendant or his counsel, and that no ruling of the court was asked. Under these circumstances there was no error on the part of the court in permitting plaintiff to open and conclude. Dwelle v. Blackwood, 106 Ga. 486 (2) (32 S. E. 593); Willingham v. Macon & Birmingham Ry. Co., 113. Ga. 374 (38 S. E. 843).

The 5th and -7th grounds of the motion for a new trial deal with the same question, — that is, the court’s failure to submit to the jury the question as to whether or not the original note, of which the note sued on was a renewal, contained usury, without notice of the same being brought home to Cowan, and whether Cowan was for that reason released or discharged from liability on the note sued on. “One who seeks to avoid a contract on the-ground of usury should set out and specify the ground of usury complained of.” Whatley v. Barker, 79 Ga. 790 (2) (4 S. E. 387). It will be noted from the statement of facts that the defendant’s plea alleges usury only in the note sued on, from its date to its maturity, at ten per cent, for said term, and that it was added in the face of the note sued on, as principal. There is no plea by the defendant that the original note, of which the note sued on is a renewal, contained usury, and that the usury was brought forward and included in the renewal note) and that the defendant is discharged because he had no notice of usury in the original note. The defendant can not complain that the court did not submit to the jury a defense which he did not plead. Faulkner v. Faulkner, 84 Ga. 73 (3) (10 S. E. 504); American Iris. Co. v. Bailey, 6 Ga. App. 424.(6) (65 S. E. 160); Chattahoochee Valley Railway Co. v. Bass, 9 Ga. App. 83 (12) (70 S. E. 683). The court fully and fairly submitted to the jury the only issue raised by the pleadings, namely, as to whether the defendant, at the time he signed the note sued on, had notice of the -usury therein, as alleged in his plea. On that question the evidence was in conflict, but it was determined by the jury against the defendant’s contention; there was evidence to support the finding, which was approved'by the trial judge; and, no error of law being committed, this court will not interfere with the verdict.

Judgment affirmed.

Broyles, P. J., and Bloodworlh, J., concur.


author: Beoyxes, P. J.

text:
    9154.
    National Life Insurance Company v. Jordan.
   Beoyxes, P. J.

1. The policy of insurance sued on contained a provision that the company “does hereby agree . . to pay the funeral benefit . . within twenty-four hours after satisfactory proof of loss has been submitted to the company.” Under this stipulaton the submission to the company of proof of the death of the insured is a condition precedent to a recovery in this case, unless such proof has been waived by the company or by some agent of the company having authority to make such waiver. It not appearing from the record that such proof was submitted to the company, or that the company, or any agent of it having authority to do so, ever waived it, the verdict for the plaintiff was unauthorized, and the court erred in not sustaining the certiorari sued out by the defendant. Civil Code, § 2490; Jackson v. Southern Mutual Life Ins. Co., 36 Ga. 429; Graham v. Niagara Fire Ins. Co., 106 Ga. 840 (32 S. E. 579); Lippman v. Ætna Ins. Co., 120 Ga. 247 (47 S. E. 593).

2. While a demand for the payment of an insurance policy, and an absolute refusal thereof, either by the company itself or an agent authorized to make such refusal, waives proof.of loss (German-American Ins. Co. v. Davidson, 67 Ga. 11; Ætna Ins. Co. v. Sparks, 62 Ga. 187; Merchants’ &c. Ins. Co. v. Vining, 67 Ga. 661; S. C. 68 Ga. 197; Liverpool &c. Ins. Co. v. Ellington, 94 Ga. 785, 21 S. E. 1006; Continental Ins. Co. v. Wickham, 110 Ga. 129, 35 S. E. 287), the mere fact that a payment of the premium on the policy, tendered before the death of the insured, was refused by an agent of the defendant, company on the ground that the policy had lapsed (it not appearing that the agent was authorized to make any waiver for the company), does not show such a waiver. Nor did the following letter of the company, written to the plaintiff's attorney after the death of the insured, constitute such a waiver: “We are in receipt of your communication relative to claim of Ella Ash, Columbus, Ga., policy No. I L 88736, and note your statement that this party was taken ill April 21, 1916, and died on May 23d. As the policy requires notification of illness to be given the company within a certain specified time, and as this notice was not given us, it would appear that there is no liability in the case. Owing to the limited information at hand, we are not in a position to affirm or deny liability, but if you desire to make proof, we are enclosing preliminary blank for that purpose. It is to be understood, however, the furnishing of this proof blank or its acceptance as proof is not to be construed as a waiver of any of the rights of the company, as they appear or might appear, and furthermore, it will be necessary to insist upon strict compliance with the provisions of the policy. • Please see that one side of the blank is filled out by the' attending physician, and the other side, in so far as it is possible, by some members of the family who are familiar with the circumstances pertaining to the previous history of illness of the deceased. On receipt of this blank properly filled out, the matter will have our prompt attention. Yours truly, E., C. Rockafellow, Adjuster.”

Decided January 22, 1918.

Certiorari; from Muscogee superior court — Judge Howard. August 11, 1917. '

J. L. Willis, for plaintiff in error.

Ed. Wohlwender, Paul Blanchard, contra.

3. The foregoing rulings being controlling in the case, it is unnecessary to pass upon the other questions raised.

Judgment reversed,

Bloo'dworth and Harwell, JJ., concur.


text:
    9157.
    FRANKLIN v. PARIS.
    1. The exceptions taken to certain portions of the court’s charge, and to the failure of the court to give in charge certain instructions to the jury, are without merit.
    2. The evidence authorized a verdict in favor of the defendant on his plea of failure of consideration, and the trial judge did not err in overruling the plaintiff’s motion for a new trial.
    Decided January 22, 1918.
    Complaint; from Stephens superior court — Judge J. B. Jones. July 27, 1917.

      C. L. Redman, for plaintiff.

      Davis & Davis, Claude Bond, for defendant.
   Harwell, J.

Franklin sued Paris on a note for $500, given by the latter to him. The defendant admitted the execution of the note, pleaded failure of consideration, and assumed the burden of proof. His evidence showed that, in 1912 the plaintiff, who was then a practicing dentist in Jackson, Ga., made a contract with the defendant, who had just graduated from a dental college, by virtue of which contract the defendant, in consideration of the conveyance to him of the plaintiff’s office equipment, office lease,fixtures, and dental practice, executed the $500 note sued on; that the defendant was a stranger in Jackson, a stranger to the plaintiff, and knew nothing of the latter; that the plaintiff had agreed to stay in Jackson and help the defendant in his practice, but, instead of so doing, left the town shortly after the defendant’s coming; that one Moore, claiming that several of the chairs included in the furniture bought by the defendant from the plaintiff, and constituting part of the consideration of the said note, were his property, came to the office and carried them off; that when the defendant informed the plaintiff of Moore’s action, the plaintiff said that sometimes he and Moore borrowed chairs from each other, and that he supposed these chairs were Moore’s property; that the plaintiff had represented to the defendant that he had a good practice in Jackson, that the defendant relied on these representations, but found them to be false, and in a few months the defendant left Jackson, leaving the remaining fixtures in the office; that the plaintiff then turned over to one Dr. Lanier the office and fixtures for the purchase of which defendant had given his note and upon Dr. Lanier’s death the plaintiff resumed his practice of dentistry, employing the same office, equipment, and fixtures that he had sold to the defendant, and which constituted the consideration of the note in suit. The evidence was in conflict, hut the jury were authorized to find that the facts of this case were as above stated, and the trial judge approved their finding.

The charge of the court that “the plaintiff, if the defendant had obtained the property and left it, without some authority would have had no right to convert it to his own use, [as] his own property, and if he did that, he would be liable to the defendant for the value,” is not erroneous for any reason assigned. Nor is any other exception to the charge of the court meritorious.

Judgment affirmed.

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


author: Broyles, P. J.

text:
    9160.
    Andrews v. McLendon.
   Broyles, P. J.

1. The court did not err in failing to give the requested instructions to the jury, as. complained of in the first ground of the amendment to the motion for a new trial, as such instructions were not authorized by evidence.

2. The remaining ground of the amendment .to the motion for a new trial is based upon alleged newly discovered evidence. That evidence appears to be cumulative and impeaching in its nature, and, moreover, was met by a counter-showing. It does not appear that the trial judge abused his discretion in overruling this ground of the motion.

Decided January 22, 1918.

Action for money had and received; from Calhoun superior court — Judge Harrell. July 21, 1917.

Smith & Miller, for plaintiff in error. B. W. Fortson, contra.

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

Judgment affirmed.

Bloodworih and' Harwell, JJ., concur.


text:
    9165.
    SMITH v. BARROW, ordinary, et al.

    The judgment in a criminal case imposed on the defendant a chain-gang , and jail sentence, to be discharged upon the payment of a- fine of $500, and ordered that a portion of this fine be paid to the ordinary for the use of the prosecutrix. The defendant paid the fine, but the portion paid to the ordinary was paid under protest. He afterward brought suit against the ordinary to recover that portion, and his petition was dismissed on general demurrer. Held, that the part of the sentence which attempted to make distribution of a portion of the fine to the prosecutrix is to be treated as void, as the court was without authority to make such distribution; that the whole amount of the fine would be payable to the officers of the court, to be distributed as provided by law; that the plaintiff in this case was not interested in this distribu- . tion and can not complain that ihe court officers in charge of collection of fines required him to pay a portion of the fine to the ordinary; that he would have no right of action against the ordinary to recover the money so paid, and that the trial judge did not err in sustaining the general demurrer and dismissing his petition.
    Decided January 22, 1918.
    Action for money had and received; from city court of Cairo— Judge Willie, July 19, 1917.
    The plaintiff in error, under an indictment charging him with seduction, was convicted in Grady superior court of the offense of fornication, and was sentenced to work in the chain-gang for twelve months and to be confined in jail for six months, the chain-gang and jail sentence to be discharged on payment of a fine of $1,000, without costs of prosecution. The sentence further provided that $900 of this amount should be paid to the prosecutrix for the use of herself and her child, and $100 be paid to the State. This sentence was afterwards modified by the court, upon the dismissal of the defendant’s motion for a new trial, and it was ordered "that the fine of $1,000 heretofore imposed on the defendant in said case be, and the same is hereby, reduced to $500.” It was further ordered that $100 of this amount be paid to the clerk of the superior court of Grady county, to be applied as provided by law, and that the remaining $400 of the fine be paid by the defendant, within fifty days from the date of the order, but that the $400 should be paid to the ordinary of Grady county, and be applied by the ordinary to the use and benefit of Julia Davis (the person named in the indictment as the seduced female) from time to time, as her needs and condition, in the ordinary’s judgment, might require. The defendant paid the $500, but $400 of it, which was paid to the ordinary, was paid under protest. He afterward brought suit in the city court of Cairo against W. C. Barrow, ordinary, to recover this amount of $400, alleging,' that he'was advised by the authorities having charge of the convicts of said county that, unless the sum of $400 was paid by him to the ordinary, on or before a certain date, he would be arrested by said authorities and confined at labor for a period of twelve months, and in jail for six months; and that he paid this amount in order to prevent said illegal arrest and detention, and paid it under protest, and that said payment was. not voluntary. He attached to his suit a copy of the sentences and the written protest referred to above.' Miss Julia Davis asked to intervene and to be made a party defendant in the case. The plaintiff moved to dismiss this intervention, but the motion was overruled. The ordinary and Miss Davis each filed a general demurrer, setting forth that no cause of action was alleged, and a special demurrer was filed by Miss Davis. The court sustained the general demurrers and dismissed the suit, and the plaintiff excepted.

      J. Q. Smith, S. P. Gain, for plaintiff.

      B. G. Bell,' Ledford & Christopher, for defendants.
   Harwell, J.

(After stating the foregoing facts.) The defendant being convicted of the offense of fornication, punishment was imposed under section- 1065 of the Penal Code (1910) for a misdemeanor. The distribution of fines is to be made as provided in § 1112 et seq. They are distributed to the officers of the court and into the county treasury, except that in certain specified eases, where provided by statute, a portion of the fine may be paid to informers, schools, etc. Penal Code, §§ -216, .461, 753, 653. If the judgments in the instant case are to be construed as imposing a chain-gang and jail sentence, to be discharged on payment of a fine of $100, and an additional sum of $400 to the prosecutrix, as a penalty, then the defendant was entitled to be released upon the payment of the $100 fine, the court being without authority to order him to pay, as a part of the penalty, an additional sum to the prosecutrix. If, however, the judgments, when taken together, are to be construed as imposing a chain-gang and jail sentence, to be discharged on the payment of a fine of $500, and an attempt was made by the court to distribute this fine to the officers of the court and to the prosecutrix for the use of herself and child, then, in order to be relieved, the defendant was under the necessity of paying the $500 fine, and the latter part of the sentence, attempting to make such distribution of a portion of the fine to the prosecutrix, is to be treated as null and void; for the court, of course, was without authority to make such distribution of the fine, and the whole amount of the fine would be payable to the officers of the court, to be distributed as provided by law. The first judgment states that the defendant is to be relieved from said chain-gang and jail sentence “upon a payment of a fine of $1,000.” The second judgment ordered “that the fine of $1,000 heretofore imposed on the defendant in said case be, and the same is hereby, reduced to $500.” The effect of these judgments, in our opinion, is to impose a fine of $500 as a condition of release from the chain-gang and jail sentence. The fine as first imposed was $1,000, but by the second judgment it was reduced to $500. Following that, it is true, the court orders that $100 shall be paid to the clerk of Grady superior court, and the remainder of said fine be paid to the ordinary for the use and benefit of Miss Julia Davis, but this attempt to make a distribution of the fine otherwise than as provided by law should have been ignored by those charged with the collection of fines, as the court was without authority so to order. The fine of $500, which was imposed by the judgment as a condition of the defendant’s release, was payable to the officers of the court, to be distributed as other fines and forfeitures. But the fact that the court was without authority to order a part of the fine to be paid to the ordinary would not render the whole sentence void. Only that part which attempted to make such illegal distribution would be void. Though part of a sentence be unauthorized by law, that part will not make void the whole, but that which is good may be enforced. Brown v. Atlanta, 123 Ga. 497 (51 S. E. 507); Neal v. State, 104 Ga. 509 (30 S. E. 858, 42 L. R. A. 190, 69 Am. St. R. 175); Daniel v. Persons, 137 Ga. 826 (74 S. E. 260).

The defendant therefore can not complain that the officials of the court having the collection of fines in charge had him pay a portion of the fine to the ordinary, and he would not have any right of action against the ordinary to recover the money so paid. The trial judge did not err, therefore, in sustaining the general demurrers and dismissing the petition.

Judgment affirmed.

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


author: Beoyx.es, P. J.

text:
    9166.
    Madden & Sons v. Beckham.
    Decided January 22, 1918.
    Action for damages; from Pike superior court — Judge Searcy. July 21, 1917. .
    The error assigned in the bill of exceptions is the overruling of a motion for a new trial, the grounds of which are not stated. The motion for a new trial was not sent up, and was not specified as a part of the record material to an understanding of the ease.
    ’ E. F. Dupree, for. plaintiffs in error. Bedding & Lester, contra.
   Beoyx.es, P. J.

1. No assignment of error having been made upon the direction of a verdict in this case, the Court of Appeals has no authority to decide whether the trial judge erred in so directing. Dickenson v. Stults, 120 Ga. 632 (48 S. E. 173); Arnold v. Ragan, 5 Ga. App. 254 (62 S. E. 1052).

2. The verdict was authorized by the evidence, and the judgment refusing to grant a new trial must be

Affirmed.

Bloodworth and Harwell, J.J., concur.


author: Bboyi.es, P. J.

text:
    9188.
    Gibbs v. Bank oF Tipton et al.

   Bboyi.es, P. J.

1. ' All charges, allegations, and averments contained in regular pleadings filed in a court of' competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged. However false and malicious, they are not libelous. Civil Code (1910), § 4438; Wilson v. Sullivan, 81 Ga. 238 (7 S. E. 274); Bibb v. Crawford, 6 Ga. App. 145 (64 S. E. 488).

Decided January 22, 1918.

Action for damages; from Tift superior court — Judge Eve. July 21, 1917.

Hendricks, Mills & Hendricks, for plaintiff.

Fulwood & Hargrett, for defendants.

(a) The averment in the petition, that the suits previously brought by the defendants against the plaintiff were not filed in a court of competent jurisdiction, is a mere conclusion of the pleader, not sustained by the facts alleged in his petition. u

2. If the petition in this case be construed as an action to recover for libel and slander, then, under the authorities cited above, it set forth no cause of action, as the alleged acts and statements of the- defendants, upon -which the suit was based, were privileged communications.

3. If the petition be construed (as the plaintiff in error contends) as an action for damages “for the institution, continuation and prosecution of the groundless, false, and malicious suits brought without probable cause,” there could be no recovery, since the petition failed to allege that the suits referred to had terminated in favor of the defendant therein. Clement v. Orr, 4 Ca. App. 117 (60 S. E. 1017); Marable v. Mayer, 78 Ga. 710 (3 S. E. 429); Newell on Malicious Prosecution, § 7; Hyfield v. Bass Furnace Co., 89 Ga. 827 (15 S. E. 752); McDaniel v. Nelms, 96 Ga. 366 (23 S. E. 407); Fulton Grocery Co. v. Maddox, 111 Ga. 260 (36 S. E. 647).

4. Under the foregoing rulings and the facts of the case, the court did not err in dismissing the petition, on general demurrer.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9191.
    Vaughan v. Wiggins.
    Decided January 22, 1918.
    Trover; from Coweta superior court — Judge Terrell. July 25, 1917.

      J. O. Newman, for plaintiff in error. W. L. Stallings, contra.
   Broyles, P. J.

1. The first ground of the amendment to the motion for a new trial, relating to alleged newly discovered evidence, is fatally defective, as the affidavit of the witness upon which the ground is based is not supported by the' other affidavits required by section 6086 of the Civil Code (1910).

2. The remaining ground of the amendment to the motion for a new trial, being disapproved by the trial judge, can not be considered.

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

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


author: Bboyles, P. J.

text:
    9258.
    Ward et al. v. The State.
    Decided January 22, 1918.
    Indictment for felony; from Walton superior court — Judge Cobb. September 22, 1917.
    Ward, Carter, and Crisp were convicted .under an indictment charging them and another person with having distilled and made alcoholic and spirituous liquors. Ward and Carter made, a motion for a new trial, which was refused, and they excepted. From the evidence it appeared, that a constable and a town marshal discovered the defendants at a distillery, where corn whisky was being made, on a branch in the woods on the land of J. E. Tuck, about nine o’clock in the morning. Ward and Carter were not doing anything. They were standing, talking and listening to Crisp talk, and Crisp punched the fire with wood under the furnace of the distillery. The officers holloaed at them and they ran. A path led from there through the woods to Carter’s house, about 300 yards away. He worked land about.200 yards from the distillery. Ward lived about a half mile away. Several families lived near there. Carter, in his. statement at the trial, said that he went down to the branch to get water, and heard cutting, and heard men talking, and found the other defendants there, and was there about five minutes when the officers appeared and called “Halt!” and he was scared and ran; that he did not know what the distillery was, and had never seen anything like it before. Ward stated that he went there suspecting that a distillery was there, and got a drink, and the officers came and called “Halt!” and said “I will kill you,” and he ran.

      B. L. & H. C. Cox, for plaintiff in error, cited:

      Griffin v. State, 2 Ga. App. 534; Lawrence v. State, 68 Ga. 289 (2); Lowery v. State, 72 Ga. 649; Thornton v. State, 119 Ga. 437.
    . W. 0. Bean, solicitor-general, contra.
   Bboyles, P. J.

1. The evidence connecting the defendants with the offense charged being entirely circumstantial in its nature, and not excluding every reasonable hypothesis save that of their guilt, their conviction was unauthorized, and the court erred in overruling the motion ■ for a new trial.

2.- The foregoing ruling being controlling in the case, it is unnecessary to consider the amendment to the motion for a new trial.

Judgment reversed.

Bloodivorth and Harwell, JJ., concur.


text:
    9265.
    CHAMPION v. THE STATE.
    1. Testimony showing'tliat the conduct of the prosecutrix was good, offered by the State in rebuttal, for the purpose of sustaining her character for chastity, after it had been attacked by evidence offered in behalf of the defendant, was admissible for that purpose.
    2. Testimony of the aunt of the prosecutrix, that she had practically raised the girl, and that the latter would come to the house of the witness and call it her home, which was offered in rebuttal by the State, for the purpose of sustaining the character of the prosecutrix, was admissible for the purpose of showing the knowledge of the witness as to the character and conduct of the prosecutrix.
    3. It was complained that the court refused to permit the defendant’s counsel to argue to the jury as to the conduct of the solicitor-general in offering to introduce evidence to show that the prosecutrix was an orphan, which evidence was objected to by the defendant’s counsel and ruled out by the court. Generally, whatever occurs in the presence of . the jury as a part of the history of the trial, such as the conduct of the parties and of witnesses during the trial of the case, is a matter of legitimate discussion by counsel in argument to the jury; but this court is not prepared to say that under the circumstances of this case the trial judge committed error in controlling the argument. If error at all, it was not such as would require the grant of a new trial.
    4. The State having made a counter-showing to the alleged newly discovered evidence, this court can not say that the trial judge abused his discretion in overruling the grounds of the motion for a new trial based on such evidence.
    5. The verdict was authorized by the evidence, and the court did not err in overruling the general grounds of the motion for a new trial.
    Decided January 22, 1918.
    Indictment for seduction; from Gordon superior court — Judge Tarver. September 29, 191'?’

      Maddox, McCamy & Shumate, for plaintiff in error.

      Joseph M. Lang, solicitor-general, A. L. Henson, contra.
   Harwell, J.

The defendant was tried and convicted of the offense of seduction, his motion for a new trial was overruled, and he excepted. Three of the grounds of the motion are based upon newly discovered evidence, by which it is sought to attack the chastity of the prosecutrix and to show that she was not a virtuous female. This newly discovered evidence is set out in the affidavits of three witnesses, Bowen, Taylor and Tearwood. There are supporting affidavits as to their credibility, and affidavits of the defendant and his counsel showing diligence and want of knowledge of this testimony before the trial. However, there are no supporting affidavits as to the residence, associates, and means of knowledge of the new witnesses; and even if the evidence alleged to be newly discovered was sufficient to authorize the grant of a new trial, the failure to attach such affidavits would prevent that result from being reached in the present case. Hatcher v. State, 116 Ga. 617, 621 (42 S. E. 1018); Phillips v. State, 138 Ga. 815 (2) (76 S. E. 352). These witnesses were sworn at the hearing of the motion and were examined before the court, and the stenographic report of their testimony is in the record. The State, at the hearing of the motion, offered counter-affidavits contradicting the testimony given by these witnesses, and also testimony impeaching in its character. It is not necessary to discuss the testimony offered by the defendant in support of the motion, and that offered by the State controverting it and tending also to impeach the witnesses upon whose testimony the newly discovered evidence was based. Upon the hearing of a matter of this kind the trial judge becomes the trior of the facts, and it is in his discretion to refuse or to grant the new trial. Fouraker v. State, 4 Ga. App. 692 (62 S. E. 116); Hayes v. Stale, 16 Ga. App. 334 (85 S. E. 253). We can not say in this case-that the trial judge, in refusing to grant a new trial upon this alleged newly discovered evidence, abused his discretion. The most important evidence submitted was the testimony of a boy named Yearwood, who testified to an alleged act of sexual intercourse by the prosecutrix. If the testimony offered by the State in rebuttal of Yearwood’s statement and impeaching Yearwood is to be believed, this witness was thoroughly discredited. At any rate the trial judge had these witnesses before him where he could observe them and their manner on the stand, and evidently he did not think that the testimony was such as would authorize the grant of a new trial, and this court can not say that he erred in his refusal to grant a new trial upon the ground of the alleged newly discovered evidence. Penal Code (1910), § 1088; Potter v. State, 12 Ga. App. 315 (77 S. E. 186). The headnotes dealing with other questions in the case require no elaboration.

Judgment affirmed.

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


text:
    9288.
    HALE v. THE STATE.
    So much of the act approved November 30, 1915 (Ga. L. Ex. Sess. 1915, p. 113), regulating the use of automobiles, as undertakes to make penal the failure of any operator of a motor-vehicle, when meeting any vehicle approaching in the opposite direction, to “turn his vehicle to the right so as to give one half of the traveled roadway, if practicable, and a fair opportunity to the other to pass by without unnecessary interference,” is too uncertain and indefinite in its terms to be capable of enforcement.
    Decided January 22, 1918.
    Accusation of misdemeanor; from city court of Cairo — Judge Willie. October 16, 1917. '

      8. P. Cain, for plaintiff in error.

      Ira Carlisle, solicitor, contra.
   Harwell, J.

The defendant was indicted for a violation of section 11 of the law approved November 30, 1915, regulating the use of automobiles on public highways, which provides, inter alia, as follows: “Whenever any operator of a motor vehicle or motorcycle shall meet, on a public street or highway, any person or persons riding or driving one or more horses, or any other draft animal, or any other vehicle, approaching in° the opposite direction, the operator shall turn his vehicle to the right so as to give one-half of the traveled roadway, if practicable, and a fair opportunity to the other to pass by without unnecessary interference.” He demurred to the indictment upon the ground that this statute is too vague and indefinite for penal enforcement, and his demurrer was overruled.

The language of this court in Hayes v. State, 11 Ga. App. 371 (75 S. E. 523), is peculiarly applicable in this case: “It is the duty of the judidial department, wherever possible, to construe an act of the legislative department so as to make it valid and binding and give due effect to all of its terms. Hence, a statute ought not to be held void for uncertainty if it is possible to give a reasonably particular construction to its terms, so as to make them capable of enforcement. But while this is true, the State can hot make an act penal without defining the act in terms sufficiently clear for any person to understand that in performing the act he is guilty of a violation of the statute. The maxim that ‘ignorance of the law is no excuse for crime’ is founded upon the theory that a citizen may ascertain the law and know that the act which he is performing has been condemned. If it is impossible for him to ascertain that a given act has been made penal,, it would be manifestly unfair for the State to punish him for a commission of the act. If the law is of such doubtful construction, and describes the act denominated as a crime in terms so general and indeterminate, as to make the question of criminality dependent upon the idiosyncrasies of individuals who may happen to constitute the court and jury, and of such a nature that honest and intelligent men are unable to ascertain what particular act is condemned by the State, the law is incapable of enforcement and will be held to be null and void.” The authorities cited in that case amply support and illustrate the foregoing principle of statutory construction, universally applied by the courts. In that case a statute making penal the operation of automobiles on highways “at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of such highway, or so as to endanger the life or limb of any person or the safety of any property,” was declared to he too uncertain and indefinite in its terms to be capable of enforcement, and this ruling was followed by the Supreme Court of this State in Empire Life Ins. Co. v. Allen, 141 Ga. 413, 415, (81 S. E. 120), and in Strickland v. Whatley, 142 Ga. 802 (83 S. E. 856).

The statute under consideration provides that the operator, when meeting another vehicle,, “shall turn his vehicle to the right so as to give one half of the traveled roadway, if practicable, and a fair opportunity to the other to pass by without unnecessary interference.” But who should determine, in each particular ease, whether, under the particular circumstances of that case, it was practicable for the driver to give the other party half of the traveled roadway? Under certain circumstances one jury might consider such action practicable, and convict; another jury, under the same circumstances, might deem it impracticable, and-acquit. If the driver of the motor vehicle deemed it impracticable to give half of the traveled roadway and in good faith failed so to do, he would be convicted of the offense should the jury find he used poor judgment in passing upon the practicability. How is the driver to know in all cases when he is violating this statute ?

The remaining portion of the section under consideration, requiring such driver to give a “fair opportunity” to the other to pass by without “unnecessary interference,” needs no discussion to show its indefiniteness and vagueness. Probably no two minds would agree on the meaning of “a fair opportunity,” nor of “unnecessary interference.” These expressions are very similar in nature to such expressions as “reasonable and proper,” disapproved of in the case' of L. & N. R. Co. v. Commonwealth, 99 Ky. 132 (35 S. W. 129, 59 Am. St. R. 457, 33 L. R. A. 209), and “narrow-tired wagon” and “broad-tired wagon,” held too vague in Cook v. State, 26 Ind. App. 278 (59 N. E. 489). For the foregoing reasons we are constrained to hold that so much of the act quoted above as undertakes to make penal the failure of any operator of a motor-vehicle, when meeting any vehicle approaching in the opposite direction, to “turn his vehicle'to the right so as to give one half of the traveled roadway, if practicable, and a fair opportunity to the other to pass by without unnecessary interference,” is too uncertain and indefinite in its terms to be capable of enforcement, and that the trial judge erred in overruling the demurrer to the indictment, based upon the invalidity of the statute.

Judgment reversed.

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


author: Bloodworth, J.

text:
    9317.
    Hamilton v. The State.
    Decided January 22, 1918.
    Indictment for misdemeanor; from Dooly superior court — Judge Crum. October 15, 1917.

      Max E. Land, for plaintiff in error. Joseph B. Wall, solicitor-general, Jesse Grantham, Powell & Lumsden, contra.
   Bloodworth, J.

In the case of Hale v. State, ante, 658, it was held that “So much of the act approved November 30, 1915 (Ga. L. Ex. Sess. 1915, p. 1131, regulating the use of automobiles, as undertakes to make penal the failure of any operator of a motor-vehicle, when meeting any vehicle approaching in the opposite direction, to ‘turn his vehicle to the right so as to give one half of the traveled roadway, if practicable, and a fair opportunity to the other to pass by without unnecessary interference/ is too uncertain and indefinite in its terms to be capable of enforcement.” The indictment in the instant case being based upon that portion of the act referred to in the above opinion which is therein declared to be “too uncertain and indefinite in its terms to be capable of enforcement,” the verdict is contrary to law and the judgment must be Reversed.

Broyles, P. J., and Harwell, J., coneur.


text:
    9298.
    Groover v. Hardeman.
    Decided January 22, 1918.
    Certiorari; from Fulton superior court — Judge-Bell. October 8, 1917.

      G. F. Gober, for plaintiff in error. Mozley & Gann, contra.
   Broyles, P. J.

1. This was a suit on a promissory note. A verdict was returned for the plaintiff for the principal amount of the note, without interest. The fact that if the plaintiff was entitled to recover the principal of the note he was entitled also to recover a large amount of interest does not give the defendant any ground for a new trial. The error of the jury in not including the interest in their -verdict was harmful to the plaintiff only. Crowley v. McCracken, 11 Ga. App. 69 (74 S. E. 871), and eases there cited.

2. The verdict was authorized by the evidence, and the court did not err in overruling the certiorari.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9302.
    Garrison v. Campbell.
    Decided January 22, 1918.
    Certiorari; from Fulton superior court — Judge Bell. October 2, 1917.

      W. J. Laney, Hugh Howell, for plaintiff in error.

      Burress & Dillard, contra.
   Broyles, P. J.

Under the facts of the case the court did not err in overruling the certiorari.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9306.
    BROOKS v. THE STATE.
    The recent possession of the stolen property by the defendant having been fully explained by the uncontradicted testimony of several witnesses in his behalf, the evidence did not authorize the verdict, and the court erred in overruling the motion for a new trial'. Williams v. State, 125 Ga. 268 (54 S. E, 166); Peeples v. State, 5 Ga. App. 706 (53 S. E. 719).
    Decided January 22, 1918.
    Indictment for simple larceny; from Haralson superior court-judge Bartlett. September 29, 1917.

      Griffith & Matthews, for plaintiff in error.

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

From the evidence it appears that G. W. Abernathy, the prosecutor, on returning to his sawmill one Monday morning, missed certain brass attachments of the machinery, which he had left on it the Friday before; and that on the same Monday morning the defendant carried these attachments to the depot in a sack, and started to ship them to Atlanta by freight. “He shipped them in his own name, in daylight, and made no effort to conceal the fact that he was shipping the brasses.” The defendant was a dealer in old brass, iron, etc. When the sheriff came with the search warrant, the defendant agreed to release the railroad company and give the sheriff the possession of the brasses. The defendant was shown to have made contradictory statements as to the person from whom he acquired the brasses. The evidence introduced on behalf of the defendant for the purpose of explaining his recent possession of the stolen goods was as follows: A. L. Weaver testified that on the Saturday on which the brasses were supposed to have been stolen, while he and Lloyd Perryman were out beyond the defendant’s house eating plums, Edgar Bennett approached them, carrying these brasses in a sack, told them he had been up to the defendant’s house to sell them to the defendant, that the defendant was not at home, and that he wanted to sell the brasses. Weaver paid Bennett fifty cents for the brasses and, with Perryman’s help, carried them to the defendant’s house. The defendant was not at home, and they left the brasses there. On the following day (Sunday) Weaver returned to the defendant’s home, and the defendant paid him for the brass at the rate of 13Yz cents per pound. Weaver knew the defendant was dealing in brass and junk, and had sold him brass before this occasion. The testimony of Perryman was substantially the same as Weaver’s, stated above. The defendant also offered evidence showing his whereabouts all during the day Saturday. In his statement the defendant said that he was away from home Saturday when the brass was brought there, that he did not then know who had brought it, that on Sunday Weaver came to his home, and he paid him for the brass, and that on Monday he carried it to the depot to ship; that on Tuesday he heard that the sheriff had a warrant for him and for the brass, and on going to the sheriff he was informed that the warrant was for the brass only; that he told the sheriff that if the brass belonged to Mr. Abernathy he would let the latter have it, and he released the railroad company. It appears, from testimony offered by the State in rebuttal, that Bennett (from whom defendant’s witness claimed to have bought the brasses) had been about the prosecutor’s mill many times, and had, shortly before this trial, left the county for Idaho.

It is not necessary to add anything further to the headnote.

Judgment reversed.

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


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

text:
    9312.
    ELBERT COUNTY v. THRELKELD.
    Decided January 22,
    — Rehearing denied February 1, 1918.
    Action for damages; from Elbert superior court — Judge W. L. Hodges. October 12, 1917.

      Z. B. Rogers, for plaintiff in error.

      George 0. Grogan, contra.
   Broyles, P. J.

The verdict for the plaintiff for the amount stated therein was authorized by the evidence, and no error requiring the grant of a new trial appears.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.

ON MOTION FOR REHEARING.

Broyles, P. J.

The motion for a rehearing of this case is made upon the following ground: “Because the court overlooked the following material fact: nowhere in the record does it appear that any written claim or demand was made by the plaintiff below on the defendant within twelve months from the date of the alleged injury, nor was suit filed within said twelve months; and without proof of either of these facts; the verdict is contrary to law and without evidence to support it.”

As to whether the suit was filed within twelve months, the petition alleges and the undisputed evidence shows that the cause of action arose in May, 1914; and the record discloses that the petition was filed on August 17,1914, and that on the same day process was issued; and the defendant acknowledged service of the petition and process, and waived all other and further service.

As to the other contention, that it did hot appear from the evidence that any written claim or demand had been made by the plaintiff upon the defendant within twelve months from the date of the alleged injury, sued for, it is a well-known rule that where the truth of an allegation of fact in a petition is expressly admitted in the defendant’s answer, there is no issue upon that point, and it is entirely unnecessary for the plaintiff to sustain such allegation by evidence. Paragraph 9 of the petition is as follows: “That, within twelve months after the injury, petitioner made and presented his account for the loss of said mule and for the expenses incurred as aforesaid, to the county commissioners [of Elbert County], which account they refused to pay.” Paragraph 9 of the defendant’s answer, prepared by the same counsel who has filed the present motion for a rehearing, is as follows: “It [the defendant] admits that, the plaintiff presented his account for damages to said mule to it within twelve months from the date of the injury, and the defendant refused to pay it.” In our opinion this paragraph of the answer amounted to an admission that the claim had been presented in the manner required by law.

Moreover the filing and the serving of the petition, in this case, within twelve months after the occurrence of the injury sued for, was a sufficient presentation of the claim to the county officials within the meaning of section 411 of the Civil Code 'of 1910. Dement v. DeKalb County, 97 Ga. 733 (25 S. E. 382); Pearson v. Newton County, 119 Ga. 863 (47 S. E. 180). See also, to the same effect, Troup County v. Boddie, 14 Ga. App. 434 (81 S. E. 376). Motion denied.


text:
    9318.
    City of Valdosta v. Goodwin.
    Decided January 22, 1918.
    Certiorari; from Lowndes superior court — Judge Thomas. October 6, 1917.

      Patterson & Copeland, for plaintiff in error.

      Dan R. Bruce, contra.
   Harwell, J.

“The decision of the superior court on certiorari reversing the judgment of a municipal court convicting one of a violation of a municipal ordinance is not subject to review by this court.” Mayor &c. of Hawkinsville v. Ethridge, 96 Ga. 326 (22 S. E. 985); Mayor &c. of Macon v. Wood, 109 Ga. 149 (34 S. E. 322).

Writ of error dismissed.

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


text:
    9331.
    Hunnicutt Company v. Kane.
    Decided January 22, 1918.
    Certiorari; from Fulton superior court — Judge Bell. October 4, 1917.
    The original assignment of error in the bill of exceptions was, that the certiorari “was sustained and judgment rendered against the defendant J. E. Hunnicutt Có.; to which judgment defendant excepted and now excepts and says-the court erred in not dismissing said certiorari.” The motion to dismiss the writ of error was on the grounds: “(1) The record does not disclose that any motion to dismiss the certiorari was made in the court below, whereas in the bill of exceptions, .the only error complained of is the failure of the court below to dismiss the certiorari. (2) Neither the record nor the bill of exceptions sets out the grounds upon which said dismissal was ashed, nor the reasons why the court erred in not dismissing the certiorari. (3) There is not a sufficient assignment of error, the grounds recited in the bill of exceptions being too general.” The motion to amend the bill of exceptions was that the word “overruling” be substituted for the word “dismissing,” so that the exception should be that the court erred in “not overruling the petition for certiorari.” Cited by counsel in support of the motion to amend: Parles v. Johnson, 79 Ga. 567; Civil Code (1910), §§ 6184, 6188. Cited contra: Ocean Steamship Go. v. Blumberg, 16 Ga. .App. 861.

      W. B. Hartsfield, James J. Slaton, for plaintiff in error. .

      George B. Bush, contra.
   Broyles, P. J.

1. The amendment to the hill of exceptions is allowed,' and the motion to dismiss the writ of error is denied.

2. Where the defense to a suit is based solely upon a partial failure of consideration, before a verdict can legally be rendered giving the defendant the benefit of such partial failure it is. incumbent upon the defendant to show the extent to which the consideration failed. The jury must have sufficient data, presented by the evidence, upon which to base a verdict in such a case. Grier v. Enterprise Stone Co., 126 Ga. 17 (54 S. E. 806); Spence Drug Co. v. American Soda Fountain Co., 11 Ga. App. 473, 477 (75 S. E. 817). • Under application of this ruling to the facts of the instant case, the trial court erred in overruling the motion for a new trial, and the judge of the superior court did not err in sustaining the certiorari and in ordering a new trial.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9336.
    WOODRUFF v. OPOLINSKY.
    1. The issue of partial failure of consideration, raised by the defendant’s plea, under appropriate instructions from the court, should have been submitted to the jury, and, under the evidence submitted, the court erred in directing a verdict for the plaintiff. Civil Code, § 4137; Kronman v. Roush Produce Go., 3 Ga. App. 152 (59 S. E. 320).
    2. As to the defendant’s complaint that the court erred in admitting in evidence a certain letter written by Jos. M. Sicker to the Rome Produce Co.: A witness for the plaintiff (one Lewis) testified that “this letter was signed by Mr. Sicker on November 14, 1914, sent to the defendant, and this letter was later returned by the defendant to him, and he thereupon brought the letter to our place of business and handed it to us.” It does not appear that these matters of fact were from the witness’s own knowledge, or whether it was mere hearsay, but, the testimony not having been objected to, the court did not err in overruling the objection to the admission of the letter.
    Decided January 22, 1918.
    Complaint; from city court of Floyd county — Judge Nunnally. September 6, 1917.
    Counsel for plaintiff (defendant in error) contended: (1) that delivery to the carrier was delivery to the consignee, and the burden was on the defendant to show that the grapes were defective when so delivered; and (3) that their condition could have been ascertained by inspection, and that defects were waived by acceptance; citing: (1) Mann'v. Glauber, 96 Ga. 795; McCullough v. Armstrong, 118 Ga. 434. (3) GooJc v. Finch, 117 Ga. 541; Henderson Elevator Co. v. North Ga. Milling Go., 136 Ga. 379.
    Cited contra: . Civil Code (1910), § 4137; Haltiwanger v. Tanner, 103 Ga. 314; Snowden V. Waterman, 105 Ga. 384; Kronman v. Roush Produce Go., 3 Ga. App. 153.

      M. B. Eubanlcs, for plaintiff in error. Benny & Wright, contra.
   Harwell, J.

Opolinsky brought suit against Woodruff (formerly doing business under the name of the Rome Produce Company) upon an account for grapes shipped in kegs from New York City to the defendant at Rome, Georgia, in March, 1914. Wood-ruff pleaded partial failure of consideration, alleging that through poor packing a large quantity of the grapes was received mashed, bruised, unsound, and that they were not merchantable. He further alleged that he was a wholesaler, and that as the grapes were packed in kegs he did not know and could not ascertain their real condition until they had been received and opened by the retail merchants to whom he .had sold them, and that most of the kegs were returned to him by Ms customers. The evidence for the-plaintiff showed that the goods were shipped to the defendant upon an order of Joseph Sicker & Co., brokers, of New York City; that the defendant had sent an order to' them for the grapes. The plaintiff’s testimony further showed that the grapes were originally packed in Spain; that their condition was good when they were shipped from New York; that if they were sound on arrival in New York, they would “carry” (keep) for two or three months, and if unsound they would have to be disposed of quickly to the local trade; that the condition of a lot of 25 or 40 kegs of grapes could be ascertained by opening three or four kegs of the lot at random, each lot being packed for single shipment; and that Mr. Sicker examined a number of the kegs at random and found them to be in good and sound condition.

The testimony for the defendant showed, that he was a wholesale merchant; that when the grapes were received in Borne he took them out of the car and that they were packed in cork in kegs or barrels; that he immediately sold them to the retail trade and delivered them to certain retailers; that after delivering them the retail trade began to open the kegs, and, with the exception of ten or twelve kegs, the entire lot was returned to him as being unsound, unfit for sale, and not mercha'ntablevat all, and that with the exception of the ten or twelve kegs, the entire lot was unsound, rotten, mashed, and clotted together, and unfit for sale; that these grapes would have been sound if properly packed in the first instance; that the kegs should not be opened until ready to be put on sale by the retailer; that it is impossible to rehead a keg (opened for the purpose of examination) and have it in the same condition as when first packed; that in so opening a keg of grapes the air is let in and they must be sold at once; that when a retailer buys a lot of half a dozen kegs he opens but one keg at a time; that he could not know the grapes were unsound and unfit for sale until the kegs were opened; that the grapes are so packed they can not be examined without opening the kegs; that the only way to tell the condition of grapes without opening the kegs is by weighing •them, — if they weigh a certain number of pounds they are all right, and, if less than that weight, then there is something wrong; that he (the defendant) did not weigh the grapes and did not open the kegs, but that they were opened by the retailers, who immediately returned them to him; that he made a partial payment to cover the returns from the good grapes in the lot and the salvage from the others, but refused to pay the remainder of the account.

Upon the conclusion of the testimony the court directed a verdict for the plaintiff for the full amount sued for.

The rulings stated in the headnotes do not require elaboration.

Judgment reversed.

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


text:
    9337.
    Cohen Company v. Brown.
    Decided January 22, 1918.
    Action for breach of contract; from city court of Sandersville— Judge Jordan. September 24, 1917.

      A. B. Wright, for plaintiff in error. Evans & Evans, contra.
   Bboyles, P. J.

1. Under repeated rulings of -this court, and of the Supreme Court, where a new trial of a case is moved because of alleged newly discovered evidence, and the affidavit of the newly discovered witness is met by a counter-showing, the trial judge is the trior, and has a very broad discretion as to granting or refusing a new trial, and his discretion will not be controlled unless it has manifestly been abused. In the instant ease the alleged newly discovered evidence was impeaching in its character and was met by a counter-showing, and it does not appear that the judge abused his discretion in overruling this ground of the motion for a new trial.

2. The other grounds of the motion for a new trial, not -having been argued in the brief of counsel for the plaintiff in error, are treated as abandoned.

Judgment affirmed.

Bloodworth and Harwell JJ., concur.


text:
    9347.
    BRYANT v. THE STATE.
    1. Any one who entices a child under the age of eighteen years away from the parent, against the will and without the consent of the latter, is guilty of a fraud against the parent, and has fraudulently enticed the child away, in violation of § 110 of the Penal Code (1910). -
    2. The special grounds of the amendment to the motion for a new trial, not having been argued by counsel, are treated as abandoned.
    3. The evidence authorized the verdict, and the court committed no error in overruling the motion for a new trial. . ..
    Decided January 22, 1918.
    Indictment for kidnapping; from Dooly superior court — Judge Crum. October 27, 1917.

      Jere M. Moore, O. B. Marshall, for plaintiff in error.

      Joseph B. Wall, solicitor-general, contra.
   Harwell, J.

The evidence in this case shows that the prosecutor’s son, at the time of his abduction by the defendant, was under eighteen years of age, and was living with, and under the parental control of, his father. The defendant, without the knowledge or consent of the father, approached the boy, told him to “come on up there to Reynolds [in another county] and work some, and said if he could go- up there and work some, he could get a dollar a day and board and feed.” The defendant did- not' tell the boy that Wadley (for whom the defendant was employing hands) would pay him a dollar a day for h'is services, but told him that he “could get a dollar a day.” The defendant again approached this boy and asked if he was going with him, and the boy answered in the affirmative. There were circumstances sufficient to show that the defendant knew the boy was living with his father and under his'control. The defendant carried the boy to the defendant’s home, where they spent the night, and on the following day he procured a ear and carried this boy with other boys he had employed into an adjoining county. Here the child obtained employment from Wadley, who paid him seventy-five cent's a day, and he remained there until his father discovered his whereabouts and sent for him.

Section Í10 of the Penal Code (1910), under which this defendant was convicted, provides: “Any person who forcibly, maliciously, or fraudulently leads, takes' or carries away, or decoys or entices away any child under the age of eighteen years from its parent or guardian, or against his will, or without his consent, is guilty of kidnapping.” This section, it has been held, “provides for two cases — one where the child kidnapped has a parent or guardian, and the other where it has neither. In the latter case it must be forcibly, maliciously, or fraudulently led, taken, 'or carried, or decoyed or enticed away against its own will, and. without its consent; in the former, if these things shall be done against the will and without the consent of the parent, irrespective of that of the child, this alone will complete the offense.” Gravett v. State, 74 Ga. 191 (1); Arrington v. State, 3 Ga. App. 30 (59 S. E. 307). It will be noted, from a reading of the evidence in this case, set forth above, that it does not appear that any fraud was practiced by the defendant on the child to entice him away. However, we do not think it necessary that fraud be practiced on the child. When the child is enticed away from the control and dominion of the father, against the will and without the consent of the father, such enticement is fraudulent. It deprives the father of the control which the law gives him over his child. The fraud, in other words, is in such eases practiced on the father, and not on the child, as in cases where the child has no father. In the Oravett case, supra, the court held that the trial judge properly charged that “the offense was complete if it was the purpose of the defendant fraudulently to deprive the parent, against his will and without his consent, of the dominion and custody of his child, and to substitute his own dominion, custody, and control over the child for that of the parent.” As was said further in the case, the object of the statute is twofold, to protect not only the rights of parents and guardians, but also those of children. Hence, we think that where one entices a child away from the control of its father, without the consent- and against the will of the latter, and deprives the father of the dominion, custody, and control of his child, the defendant has fraudulently enticed the child away from its parent, and is guilty of kidnapping. “It is sufficient to authorize the conviction of this offense, if it be shown that the child in question was decoyed or enticed away from parental control without the consent of the parent.” Arrington v. State, supra. “Entice,” as defined in that case, means “to draw on, by exciting hope and desire; to allure; to attract.”

We think, therefore, that since the evidence in the present record áhows that the child was under the age of eighteen, and, was enticed away from his parent without the consent and against the will of the latter, the statute was violated. The jury recommended a misdemeanor punishment in this case, which was imposed by the trial court. This court will not interfere.

Judgment affirmed.

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


text:
    9350.
    Meyer v. The State.
   Harwell, J.

The uneontradicted testimony of the State’s witness showed that a search of the defendant’s residence was made and a quantity of whisky found therein. The verdict was authorized by the evidence, no error of law is complained of, 'and the trial judge did not err in overruling the motion for a new trial.

Decided January 22, 1918.

Indictment for misdemeanor; from city court of Savannah— Judge Bourke. September 29, 1917.

Robert L. Golding, for plaintiff in error.

Walter G. Hartridge, solicitor-general, contra.

Judgment affirmed.

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


author: Luke, J.

text:
    8416.
    Savannah and Northwestern Railway v. Gnann.
    Decided January 29, 1918.
    Action for damages; from city court of Springfield — Judge Shearouse. December 27, 1916.

      Hitch & Denmark, John G. Kennedy, for plaintiff in error,
    cited: Gainesville éc. R. Co. v. Edmondson, 101 Ga. 747; Southern Ry. Go. v. Myers, 108 Ga. 164; Southern Ry. Go. v. Pace, 114 Ga. 712; Talmadge V. Central Ry. Go., 125 Ga. 400; Southern Ry. Go. v. Herrington, 128 Ga. 438; Ga., Fla. & Ala. Ry. Go. v. Summer, 133 Ga. 134; Seaboard &c. Ry. v. Jarrell, 145 Ga. 688; Atlantic Coast Line R. Co. v. McRee, 11 Ga. App. 790-93; Atlantic Coast Line R. Go. v. McElmurray, 12 Ga. App. 233; s. c. 14 Ga. App. 197; Ga. Ry. & Elec. Go. v. Harris, 1 Ga. App. 714, 716; Ga. >S'. & F. Ry. Go. v. Thompson, 111 Ga. 731; Seaboard &c. Ry. v. Walthour, 117 Ga. 427; Macon &c. R. Go. v. Revis, 119 Ga. 333; Ivey v. L. & N. R. Go. 434 (4).

      Strange & Metis, contra, cited:

      Southern Ry. Go. v. Herring-ton, supra; Atlantic Coast Line R. Go. v. McRee, supra; Southern Ry. Go. v. Thompson, 129 Ga. 367 (8); W. & A. R. Co. v. Tate,
      129 Ga. 526 (2); Southern By. Co.-v. Black, 141 Ga. 39; Atlantic Coast Line B. Co. v. Davis, 5 Ga. App. 214 (2), 217; Atlantic Coast Line B. Co. v. McElmurray, supra.
   Luke, J.

The grounds of the amendment to the motion for a new trial in this case were abandoned, and the case is here on the general ground that the verdict for the plaintiff was unauthorized by the evidence. The evidence for the plaintiff was circumstantial that an engine of the railroad company set out the fire which damaged him as alleged in his petition. The evidence for the defendant was positive and uncontradicted that the engines alleged to have set out the fire were equipped with proper spark-arresters and were not emitting and did not emit sparks. Tinder the decision in the case of Seaboard Air-Line Railway v. Jarrell, 145 Ga. 688 (89 S. E. 718), the court erred in overruling the defendant’s motion for a new trial.

Judgment reversed.

Wade, O. J., and' Jenkins, J., concur.


author: Wade, 0. J.

text:
    8479.
    MORAN & WILKINSON v. MARTIN, trustee.
    Where the superior court was in possession of funds arising from the sale of real property under proper order of that court in partition proceedings, and the distributive share of one of the cotenants was paid into its registry, under order of the court, on information as to the existence of certain outstanding liens against him, of file and record in the court, and certain creditors of his filed, by permission of the court, an intervention claiming the impounded fund, under and by virtue' of general judgment executions in their favor against him, and, within four months from the granting of the order impounding the fund and from the filing of the intervention, he was adjudicated a bankrupt, and within this period of four months the trustee in bankruptcy filed in the superior court a petition asking that the fund in its hands be awarded to him for distribution, the judge of the superior court properly directed the award of the fund to the trustee in bankruptcy. The fund in the possession of the superior court at the time of the adjudication in bankruptcy was not derived from the enforcement of any lien, and the intervention by which it was sought to appropriate the fund otherwise coming into the hands of the superior court to certain judgment liens (more than four months old), being itself filed within less than four months from the time the defendant in execution had been adjudicated a bankrupt, the bankruptcy court was entitled to administer the fund.
    Decided January 29, 1918.
    Intervention and claim; from Chatham superior court — Judge Morris presiding. January 13, 1917.
    . Osborne, Lawrence & Abrahams, Allen & Pottle, for plaintiffs in' error. O’Byrne, Ilartridge & Wright, contra.
   Wade, 0. J.

A proceeding to partition certain realty was instituted in the superior court of Chatham county by several co-.-tenants,- jointly interested as legatees, and the property, being incapable of equitable division otherwise, was (under proper order) sold by the commissioners-for distribution. Subsequently it was made to appear that there were of file and record in the office of the clerk of that court several judgments and liens against John G. Thomas, one of the eotenants, and it was thereupon ordered by the court that the portion, of the fund arising from said sale, which constituted his distributive share, should be paid into the registry of the superior court, “and that all-parties having claims against his said interest [should] have the right to intervene therefor before this court.” This order was entered on November 18, 1915. Thereafter Moran & Wilkinson filed an intervention in the superior court, claiming the impounded fund under certain general judgments against Thomas, alleged to be a lien upon all of his, property. After the passage of the order of November 18, impounding the distributive share of Thomas, which amounted to $144.11, and authorizing intervention by his creditors, he was adjudicated a bankrupt. Thereafter, before ¿ny distribution of the fund in the hands of the superior court had been made, or before any order setting up liens against it was' entered, and within less than four months from the time Thomas had been adjudicated a bankrupt, the trustees in bankruptcy made an application to the superior court for the impounded fund, in order that it might be distributed through the court of bankruptcy. This application was granted and the judge passed an order requiring the clerk of the superior court to pay over to T. B. Martin, as trustee, the said sum of $144.11, less such costs as might be due the clerk. Moran & Wilkinson excepted to the order awarding the fund to the trustee in bankruptcy as against them, and the question is here for determination.

The judgment liens against Thomas were general liens only, and the fund in the hands of the superior court came into its possession through partition proceedings and totally without reference to and without the aid of the liens claiming the fund. The superior court therefore did not acquire possession of the fund under and by virtue of the liens in question, or through any effort to enforce them. Apparently the trustee in bankruptcy pursued the exact course held proper in McGahee v. Cruickshank, 133 Ga. 649 (66 S. E. 776), in that he applied to the State court for an order directing that the fund in the registry of the court be delivered over to him. The possession of the fund by the superior court was wholly incidental, and while the order passed by that court, based upon information derived from its records as to the existence of outstanding judgments and general liens against the partitioner Thomas, allowed his creditors to intervene and have their priorities established and their rights to the fund determined by the court, when Thomas was adjudicated a bankrupt, another . court, possessed of broader powers and more comprehensive means of administering the fund equitably and with proper consideration for the rights of all creditors of the bankrupt (whether judgment creditors or not), acquired jurisdiction over his assets; in which court all parties interested could appear and be heard as to the validity of any outstanding judgment or judgments, lien or liens, against the bankrupt, with full opportunity afforded non-judgment creditors to attack any such claims in judgment, and to defeat them if for any reason they or any of them should be nonenforcible or not entitled to their apparent priority as judgment claims. . Quite a different case is presented by the record under consideration from one in which the fund in the hands of the State court is brought into that court by the enforcement of a valid subsisting lien more than four months,old. The State court, as to the fund in its hands arising from the partition proceedings, was a mere custodian or depository, and occupied no different position from that of a bank or individual in possession of property belonging to the bankrupt and held for his benefit or convenience, and the transfer of the fund to the bankruptcy court upon the petition of the trustee and the order of the superior court did not deprive the State court of its jurisdiction to enforce a pending valid subsisting lien more than four months old at the time of the bankruptcy, since the proceeding to distribute the fund was merely ancillary to the main proceeding.

“In general, an adjudication of bankruptcy vests the bankruptcy court with exclusive jurisdiction to administer the property of the bankrupt, as against any State court which may have obtained possession of such property through proceedings instituted within four months prior to the adjudication, and it is immaterial that the proceedings in the State court were for the enforcement of valid liens not affected by the bankruptcy act.” In re Knight,-125 Fed. 35 (4). In the case under consideration the proceeding in which the court obtained possession of the property was, it is true, instituted more than four months prior to the adjudication in bankruptcy, but this proceeding was not one to enforce a lien, and in fact the ancillary proceeding to enforce the lien in favor of Moran & Wilkinson was not begun in any view until their intervention was filed, and it was not filed four months prior to the adjudication, bnt only a few days anterior thereto. Had the case been one in which the State court had obtained possession of the bankrupt’s property through proceedings instituted for the purpose of acquiring possession of it in order to enforce a lien against it, and the effort to enforce the lien had been instituted more than four months prior to the adjudication, an entirely different state of facts would have been presented. In the Kaplan ease, 144 Fed. 159, the headnote is as follows: “A trustee in bankruptcy is entitled to possession of all of the bankrupt’s property, and to administer the same, although it may be subject to liens or in possession of a State court in proceedings to enforce a lien, instituted within four months prior to the bankruptcy.” A careful consideration of that case will serve to differentiate it from the case now under consideration, if the fact be recalled that' the proceeding to enforce the liens in favor of Moran &■ Wilkinson and against the property impounded in the superior court was not instituted within four months prior to the bankruptcy, but was only begun (under the most liberal view that can be taken) when the judge of the superior court, upon information, directed in-his order of November 18, 1915, that the creditors of Thomas be allowed to intervene in that court and set up their claims to the fund paid into the registry of the court in his behalf; and this proceeding, as stated above, was instituted less than four months before Thomas was adjudicated a bankrupt. As held in the Kaplan ease, supra, a trustee in bankruptcy is entitled to the possession of all the bankrupt’s property and to administer it, even where it is subject to liens or in the possession of a State court in proceedings to enforce a lien, where such proceedings are instituted within four months prior to the bankruptcy. In our opinion, therefore, the trial judge did not err in directing the clerk of the superior court to pay over the fund in question to the trustee in bankruptcy, for administration by the bankruptcy court.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


author: Wade, C. J.

text:
    8527.
    Greenfield et al., executors, v. Rhodes.
    Decided January 29, 1918.
    Action lor damages; from city court of Atlanta — Judge Reid. January 30, 1917.

      F. M. & G. F. Mitchell, for plaintiffs in error.

      Dorsey, Shelton & Dorsey, R. Low Reynolds, contra.
   Wade, C. J.

1. The first three formal grounds of the original motion for a new trial are without merit, as there was evidence to support the verdict.

2. Grounds 4 to 9 (inclusive) of the original motion for a new trial, which complain of the refusal of the court to give in charge to the jury-various requested instructions submitted in writing, are without substantial merit, in the light of the entire evidence and the charge as a whole.

3. The 1st ground of the amendment to the motion for a new trial alleges that the court committed reversible error by unduly stressing the plaintiff’s contentions, in that they were recited at great length and in great detail, and that but little time was devoted to the defendants’ contentions, and thereby the claims of the plaintiff were emphasized and those of the defendants minimized. The record discloses that the petition and the amendment thereto, filed by the plaintiff, set forth with particularity the alleged basis upon which recovery was sought, whereas the answer of the defendants as amended amounted to little more than short and concise denials of the allegations of the plaintiff. Considering the pleadings and the evidence introduced in support thereof, this ground of the motion will not require a reversal, since the charge as a whole presented the contentions of the defendants fairly and with requisite fullness.

4. The ground of the motion for a new trial which complains of the refusal to award a nonsuit can not be considered, in view of the fact that the motion included the general ground that the verdict was not supported by the evidence. See OolUns V. Strickland, ante, 542 (94 S. E. 1035), and cit.

5. There is no merit in the 3d ground of the amendment to the motion for a new trial. The judge did not abuse his discretion in permitting counsel for the plaintiff to read to the court, in the presence of the jury, “from certain law-books the reports of decisions in somewhat similar cases.”

6. The remaining grounds of the motion for a new trial are without merit.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    8569.
    Breed, Elliot & Harrison v. City of Rome.
    Decided January 29, 1918.
    Action for breach of contract; from Floyd superior court — Judge Wright. February 7, 1917. See post, 805.

      Maddox & Doyal, for plaintiff. Max Meyerhardt, for defendant.
   Wade, C. J.

1. The petition of the plaintiff (a corporation) alleged: that its bid for an issue of bonds by the City of Rome was accepted on March 31, 1915, with the proviso that prior to- its acceptance and payment for the bonds the purchaser should be furnished by the municipality with full and complete transcripts establishing to the satisfaction of its attorneys the legality of the issue; that the transcripts were duly submitted, and proved satisfactory to the attorneys for the purchaser, and that the bonds would have been received and paid for by the purchaser, but, “before said bonds were ready for delivery to petitioner,” the form of the municipal government of Rome was changed by an act of the legislature (Ga. L. 1914, p. 1140), which went into effect on April 5, 1915, when the mayor and council of the city retired from office and commissioners assumed charge of all municipal affairs; that the bonds tendered to the petitioner after said change in the form of government of the city and the change of its officials bore the signature of the former mayor and the former clerk of council, who were not in office at the time of the tender, but had been superseded by other officials. Conceding, for the purposes of this ease only, the correctness of the contention that the purchaser was entitled to have bonds delivered to it which bore the signature of the officials of the City of Rome in office at the time of the delivery (this question, however, not being passed upon), and construing the. plaintiff’s petition most strongly against the pleader (in accordance with the familiar- rule), it does not appear that the bonds were not signed by the mayor and the clerk of council before the expiration of their terms of office; and the allegation that the commission government assumed charge of the city “before said bonds were ready for delivery to petitioner” does not disclose why they were not ready for delivery, or indicate that they were not signed and executed by the proper officials, having authority at the time of the signing and execution, or even suggest that they were not ready for delivery because of any fault or negligence on the part of the city, but, to the contrary (and for aught that is alleged in the petition), the failure to deliver between March 31 and April 5 following may have been due to the tardiness or .fault of the purchaser, and, under the general averment made, must be presumed to Rave been due to that cause.

2. The trial judge therefore (aside from other considerations) did not err in sustaining the demurrer to the 8th, 9th, and 10th paragraphs of the plaintiff’s petition, which sought to recover damages for certain expenses incurred in connection with the making of the plaintiff’s bid, and because of the alleged loss of profits.

Judgment affirmed.

Jenkins and Luke, JJ., concur.