text:
    11306.
    Pitts Shoe Company v. Stein.
    Decided April 9, 1920.
    Complaint; from city court of Thomasville-—-Judge W. II. Hammond. January 26, 1920.
    Pitts Shoe Company - sued Stein on an account consisting of items of shoes furnished in February and April, 1918, aggregating $262.80, upon which was a credit of $100, dated May 4, 1918. The defendant in his answer denied indebtedness, and in the 4-th paragraph alleged that there was no agreement upon the prices or value of the shoes, that their fair market value was not more than $50, and that the pajunent of $100 credited on the account was in excess of the market value, to the extent of $50; for which sum the defendant prayed judgment against the plaintiff. The remainder of the answer was in substance as follows: (Paragraph 5) In January, 1918, it was agreed between the defendant and the plaintiff’s salesman, who was endeavoring to sell to him leather shoes for the plaintiff, that the plaintiff might ship to the defendant leather shoes corresponding in quantity to those listed in the account sued on; but the plaintiff did not thereafter ship any leather shoes to the defendant, and instead shipped a like quantity of shoes made of 'paper and of other inferior material, so painted, varnished, and manufactured as to have the appearance of genuine leather shoes, this being done for the purpose of deceiving the defendant and all other purchasers; that the defendant received them in the first week in May, 1918, 'and paid the $100 credited on the account, believing that they were genuine leather shoes; that the plaintiff’s fraud could not have beer discovered by the exercise of diligence; that there was no meeting of minds or contract between the plaintiff and the defendant respecting the particular goods in question, and, even if the facts might be held to amount to a contract, the contract was voided by the said fraud; that immediately on learning the character of the goods, the defendant offered to restore them to the plaintiff, and on October 14, 1918, he notified the plaintiff that he held them subject to the plaintiff’s order. Because of the facts stated in this paragraph he prays judgment against the plaintiff for the $100 paid to the plaintiff. (Paragraph 6) The goods were ordered, as the plaintiff knew, for the purpose of placing them in the defendant’s stock of merchandise in his store, for sale at retail to his customers, and, as a part of the said transaction, the plaintiff represented and warranted them to be merchantable and reasonably suited for that purpose, and the defendant received them for that purpose, trusting in the said representation and warranty, but they were not merchantable, would break on being used, and would come to pieces on getting wet and were ¡wholly useless and worthless; that on learning their true character the defendant notified the plaintiff thereof and offered to return them, and he is still willing and ready to do so; that by reason of the facts stated in this paragraph the consideration for the plaintiff’s account has totally failed; and, further, the said breach of the plaintiff’s implied warranty precludes any recovery by the plaintiff. The defendant therefore prays judgment for the $100 paid on the account. (Paragraph 7) On October 14, 1918, defendant notified plaintiff that he held the said goods subject to plaintiff’s order, and would charge and expect the plaintiff to pay storage for them from October 15, 1918, but the plaintiff failed to order their return or any other disposition of them; and the defendant prays judgment against the plaintiff for the reasonable value of storing them, alleged to be $5 per month.
   Smith, J.

1. The court properly overruled the demurrers to the answer of the defendant, as the answer is not subject to the criticisms made by either the general demurrer or the special demurrers.

2. While a plea of total failure of consideration includes partial failure of consideration, paragraph 4 of the answer in this case was in fact a plea of partial failure of consideration, and there was evidence introduced showing the extent to which the consideration had failed. “ Partial payment, with knowledge of the defective condition, will not estop the buyer from pleading partial failure of consideration.” Civil Code (1910), § 4137. See also Atkins v. Cobb, 56 Ga. 86 (6); Pearson v. Brown, 105 Ga. 802 (2) (31 S. E. 746).

3. There was ample evidence to support the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.

There was a general demurrer to the answer, and paragraph 4 was demurred to on the grounds, that it stated no fact to sustain the allegation that the shoes were not worth more than $50, and that it amounted merely to a conclusion of the pleader; that it failed to state how many pairs of shoes were received, their value, or any facts upon which a jury could legally allow a deduction from the amount of the plaintiff’s claim. Paragraph 5 was demurred to on the grounds, that it failed to show when the shoes were received, or that the defendant inspected them or made any effort to discover defects, and failed to show why the deception could not be discovered except by wearing the shoes; and that it did not appear that he made any complaint of them before October 14, 1918. Paragraphs 6 and 7 were demurred to on the grounds, that in the main they stated only conclusions of the pleader and were " only repetitions of his troubles complained of in paragraphs 4 and 5,” and' were hot sufficiently definite in particulars stated in the demurrer.

The verdict was "for the defendant.”

J. U. Merritt, W. J. Davis, Jr., for plaintiff.

Clifford E. Hay, for defendant.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    11315.
    LUCKEY v. DANIELS.
    Decided Aerie 8, 1920.
    Liability for a commission for services, in procuring for the defendant a purchaser for his land, appears from the allegations of the plaintiff’s petition, and the court erred in sustaining a general demurrer and dismissing the petition.
    Complaint; from city court of Waynesboro — Judge Davis. January 24, 1920.
    In the brief of counsel for the defendant it is contended that no cause of action is shown, because it does not appear that a sale was consummated or that there was a mutually binding contract between the defendant and the prospective purchaser.

      C. N. Walker, for plaintiff, cited:
    Civil Code (1910), § 3587; 88 Ga. 321; 92 Ga. 508; 96 Ga. 518; 100 Ga. 563; 125 Ga. 222; 73 Ga. 295; 48 Ga. 96; 71 Ga. 254; 5 Ga. App. 341 (1); 15 Ga. App. 735; 139 Ga. 283; 103 Ga. 661; 106 Ga. 422; 112 Ga. 61 (3); 126 Ga. 380; 127 Ga. 572; 135 Ga. 58 (1); 6 Ga. App. 164 (1); 8 Ga. App. 557 (2); 12 Ga. App. 180 (1).

      E. V. Heath, for defendant, cited:
    5 Ga. App. 340 (2), 343; Civil .Code (1910), § 2693, par. 4; 7 Ga. App. 394; 141 Ga. 126, 127.
   Smith, J.

W. T. Luckey brought suit in the city court of Waynesboro against J. S. Daniels for $150, alleging substantially the following: that in July, 1919, ho entered into a contract with the defendant under which, as the defendant’s agent, he was to have the exclusive right to sell a certain tract of land, on a commission basis, the commission to be payable out of the first payment. A copy of the contract was attached to the petition. The contract was later varied by an agreement that the selling price should be $5,800, and that the plaintiff should receive $150 of this amount as commission in ease he sold the land. He alleged further that in October, 1919, he sold the land to R. W. Hickman, who agreed to pay $5,800 for the.same, said Hickman making a payment of $164.27 to bind the sale. He alleged that the purchaser was able, ready, and willing to make the purchase, and that the terms were acceptable to the defendant. The defendant demurred to the petition, and thereupon the plaintiff filed an amendment in which he set out that after -the signing of the contract and 'up to the date of the alleged sale he advertised the land for sale, in daily newspapers, in circulars, in advertising sheets, and in posters, and also by personally soliciting a purchaser for said land; that as a result of such efforts on his part he Secured R. W. Hickman as a purchaser for said land; that on October 8, 1919, he took said purchaser to the defendant for the purpose of agreeing on terms and consummating the sale; that at said meeting the defendant and R. W. Hickman stepped away from the plaintiff and talked over the sale privately, and upon returning to where the plaintiff was they stated to him that they had fully agreed on the contract and terms of sale, provided he would agree to accept for his services already rendered in securing said purchaser the sum of $150 as his commission, to be paid out of the first payment on the land. He alleged further that he agreed to accept this $150, and thereupon the defendant accepted • from said Hickman a check for $164.27, agreeing to pay plaintiff $150 out of said amount, and gave said Hickman a receipt for said sum. A receipt for said amount was attached to the amended petition. This receipt showed that the purchaser of the land was to pay $5,800 as the purchase-price thereof, $2,000 to be paid as soon as bond for title could be executed, and the balance in four equally divided payments with interest at 8% per annum until paid, the $164.27 to be credited on the first payment of $2,000. To the petition as thus amended the defendant renewed his demurrer, and the court sustained the demurrer and dismissd the suit. The petition as amended set out a cause of action, and the court erred in sustaining the demurrer and dismissing the suit. See Civil Code (1910), § 3587; Humphries v. Smith, 5 Ga. App. 340, 342 (63 S. E. 248); Kesler v. Stults, 15 Ga. App. 735 (84 S. E. 201).

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.


author: Broyles, C. J.

text:
    9566.
    AMERICAN NATIONAL BANK OF MACON v. ANDERSON.
    Decided April 13, 1920.
    Under the decision of the Supreme Court in this case (Anderson v. American National Bank of Macon, 149 Ga. 798, 102 S. E. 534), the court below properly overruled the general demurrer to the first count of the plaintiff’s petition, but erred in overruling the general demurrer to the second count.
    Complaint; from Bibb superior court — Judge Mathews. January 8, 1918.

      Hardeman, Jones, Park & Johnston, Harry S. Strozier, for plaintiff in error.

      Hall & Grice, contra.
   Broyles, C. J.

This case was first decided by this court on February 18, 1919, and it was then held that the plaintiff’s petition (which consisted of two counts) showed no cause of action against the American National Bank, and the judgment of the trial court, overruling the general demurrer interposed to the petition, was reversed (American National Bank v. Anderson, 23 Ga. App. 434, 98 S. E. 421). From the oral argument before this court, participated in by counsel for both the plaintiff in error and the defendant in error, we understood that counsel agreed that the single controlling question in the case was whether there had been a consolidation or merger of the two defendant banks, and that unless there had been such a consolidation or merger, the plaintiff, under his petition as drawn, had no right of recovery against the American National Bank. And, as we recollect it, the arguments of all the counsel in the case were addressed to that question only. Upon a careful consideration of the pleadings and the authorities cited by counsel for both sides, this court was of the opinion, and so held, that the petition failed to show a consolidation or merger of the banks; and, under the agreement (as we understand it) of the learned counsel on both sides, we thought that this adjudication settled the entire case; and in the opinion rendered by this court it was said: “ The theory upon which the petition was drawn was, that under a certain written contract (a copy of which was attached as an exhibit to the petition), entered into between the two banks on August 11, 1914, a consolidation or merger of these banks resulted, and that the surviving bank — the American National Bank — was liable for the debts of the absorbed bank,—-the Commercial; and especially, as in this case, for services rendered upon the request of both banks, although the services were performed under employment by the absorbed bank. As the petition is drawn, there can be no recovery against the American National Bank unless there was a consolidation or merger of the two banks.” The case thereafter was carried, by certiorari, to the Supreme Court, which sustained the judgment of this court that the plaintiffs petition did not show a consolidation or merger of the defendant banks. The Supreme Court further held, however, that while the second count of the petition (which was based upon the alleged consolidation or merger of the two banks) was subject to general demurrer, the plaintiff, under the first count of his petition, was entitled to recover from the American National Bank, notwithstanding there had been no merger or consolidation of the banks. Accordingly the judgment of this court that the plaintiff’s petition set forth no cause of action against the American National Bank was reversed. See the opinion of the Supreme Court in this case, rendered February 13, 1920, 149 Ga. 798 (102 S. E. 534).

It is therefore directed that the former judgment of this court in this case be vacated; and the judgment of the lower court is affirmed in so far as it overruled the general demurrer to the first count of the petition, and is reversed in so far as it overruled the general demurrer to the second count.

Judgment affirmed in part and reversed! in part.

Luke and Bloodworth, JJ., concur.


author: Luke, J.

text:
    9971.
    SEABOARD AIR-LINE RAILWAY v. BREWTON.
    Decided April 13, 1920.
    1. “ In an action for damages based on porsonal injuries, where under' the pleadings and the evidence there was an issue whether the injuries were permanent or temporary in character, and the judge instructed the jury relatively to the measure of damages applicable to a case where the injuiy was permanent, but omitted to give instructions as to the measure Of damages that would be applicable if the injury were not permanent, such omission, even without proper request for charge, would be cause for reversal. Central Railroad &c. Co. v. Dottenheim, 92 Ga. 425 (17 S. E. 662) ; Central of Ga. Ry. Co. v. Johnston, 106 Ga. 139 (32 S. E. 78) ; Southern Ry. Co. v. O’Bryan, 112 Ga. 127 (37 S. E. 161) ; Western & Atlantic R. Co. v. Smith, 145 Ga. 276 (88 S. E. 983); A., B. & A. Ry. Co. v. Barnwell, 138 Ga. 569 (75 S. E. 645) ; Western & Atlantic R. Co. v. Knight, 142 Ga. 801 (83 S. E. 943) ; Western & Atlantic R. Co. v. Roberts, 144 Ga. 250 (86 S. E. 933). In the first four of the cases just cited the motions for new trial expressly alleged that the damages were excessive, but the rulings made did not in any wise refer to that fact. In the last four cases, where similar rulings were made, the motions for new trial did not allege that the damages were excessive.”
    2. “In Central Railroad v. Harris, 76 Ga. 501 (only two of the three Justices presiding), it was said: ‘No complaint of excessive damages is made, and therefore it is immaterial what measured them.5 This ruling has been followed and applied by the Court of Appeals in the following cases: Gainesville Midland Ry. v. Jackson, 1 Ga. App. 632 (57 S. E. 1007) ; Gainesville & Northwestern R. Co. v. Galloway, 17 Ga. App. 702, 703 (5) (87 S. E. 1093). We do not concur in the correctness of the decision in 76 Ga. 501, and decline to follow it.
    3. “ Applying the law as above announced, the Court of Appeals erred in affirming the judgment of the trial court refusing to grant the railroad company a new trial on the ground of failure to instruct the jury as to the measure of damages when not permanent.” 150 Ga. 37 (102 S. E. 439). See 23 Ga. App. 621.
    Action for damages; from Bryan superior court — Judge Sheppard. June 15, 1918.

      Anderson, Cann, Cann & Walsh, for plaintiff in error.

      H. B. Strange, J. P. Dukes, contra.
   Luke, J.

A decision in this case was rendered by this court on April 19, 1919, and it was then held, under the rulings in Central Railroad v. Harris, Gainesville Midland Ry. v. Jackson, and Gainesville & Northwestern R. Co. v. Galloway, supra, that even if the court erred in instructing the jury as to the measure of damages, the error was immaterial, since there was no specific complaint by the plaintiff in error that the verdict was excessive. The ease was certioraried to the Supreme Court, which on February 24, 1920, reversed the judgment of this court (150 Ga. 37, 102 S. E. 439); and its decision is set forth in the preceding headnotes. That decision, in effect, overrules their decision in the Harris case, supra; and this court now, upon a review of the decisions in the Jaclcson and Galloway cases, supra, overrules them as regards the question now under consideration.

It is ordered that the former judgment of this court be vacated; and the judgment of the lower court is reversed on account of the error in the charge upon the question as to the measure of damages.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    10706.
    BANKS v. THE STATE.
    Decided April 13, 1920.
    1. Where one who is being prosecuted for the offense of seduction makes a timely, bona fide, and continuing offer to marry the woman whom he is charged with having seduced, and obtains a marriage license from the ordinary of the county of her residence and gives the bond provided for in section 379 of the Renal Code of 1910, and his offer of marriage is refused by her, and the court thereupon enters a judgment ending the prosecution for seduction and discharging him, that judgment is a bar to any subsequent' prosecution of the defendant for the offense of fornication, founded upon the same transaction.
    2. Under the foregoing ruling the court erred in striking the defendant’s special plea in bar, on the ground that it was insufficient in law; and the further proceedings on the trial were nugatory.
    Conviction of fornication; from Appling superior court — Judge Highsmith. May 10,1919.

      W. W. Bennett, for plaintiff in error.

      Alvin V. Sellers, solicitor-general, contra.
   Luke, J.

Certain questions of law involved in this case were certified to the Supreme Court, and the preceding headnotes embody the substance of that court’s answers. See the full opinion of* the Supreme Court, 150 Ga. 73 (102 S. E. 519). The court having erroneously stricken the defendant’s special plea in bar, the further proceedings in the ease were nugatory, and a new trial is required. If the defendant on the next trial sustains by proof the material allegations of his plea in bar, he will be entitled to an acquittal.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    11027.
    Danzley v. The State.
   Luke, J.

1. The court did not err in denying the application for a continuance, which was based on the absence of a witness who had not been subpoenaed and who was not shown to reside within the jurisdiction of the court, but who, according to the best information obtainable by the sheriff in seeking to serve the subpoena, had left this State and enlisted in the United States Navy. Park’s Penal Code, § 987.

2. A ground of a motion for a new trial complaining as to the admissibility of certain evidence, but failing to set out the evidence as a part of the ground or to annex it as an exhibit to the motion, presents no question for decision. See Park’s Penal Code, § 1086, and annotations under the catchwords “Assignment of error.” The second ground of the amendment to the motion for a new trial comes within this rule.

3. Where a proper instruction is duly requested in writing and is refused, but the judge, in his own words, gives in full to the jury the substance of the requested charge, the refusal affords no cause for a new trial. See Park’s Penal Code, § 1087, and annotations (pp. 747, 749) under catchwords, “ General charge,” and “ Requests.” The 3d, 4th, and 15th grounds of the amendment to the motion for a new trial in this case come within this rule.

4. The law of reasonable doubt, as defined by section 1013 of the Penal Code (1910), is applicable to every criminal case, whether dependent upon positive or circumstantial evidence; and the mere giving of this principle in charge to the jury can never of itself alone necessitate ' an instruction upon the weight of circumstantial evidence. Smith v. State, 125 Ga. 296 (54 S. E. 127). The 5th ground of the amendment to the motion for a new trial is therefore without merit.

5. The court instructed the jury that they were judges of the law and of the facts in the case, and that they should take the law as given them in charge' and ascertain the facts from the testimony of the witnesses and from the statement of the defendant. There is no merit in the complaint that the court did not further instruct the jury to apply “ the one to the other ” and make their verdict accordingly.

6. The charge complained of touching the weight to be given the testimony of an accomplice was full and fair, and was in accord with section 1017 of the Penal Code of 1910.

7. The defendant introduced no witness. There was conflict in the testimony of two witnesses introduced by the State. The court gave in charge the usual rule touching conflicts in the testimony. Complaint is made that this rule was inapplicable, because the sole conflict in the testimony was between two witnesses for the State. Held-. The rule was as applicable as if one of the witnesses had been sworn and introduced by the State and the other by the accused. Skipper v. State, 59 Ga. 63 (3); Sessions v. State, 6 Ga. App. 336 (2) (64 S. R. 1101).

Decided April 13, 1920.

8. The charge on conspiracy (complained of in ground 9) is not subject to the criticism that it held this defendant responsible for a conspiracy solely between the other two defendants who were jointly indicted, but not tried, with him.

9. Where a conspiracy to commit the offense charged in the indictment is shown, between two or more jointly indicted defendants, the act of each conspirator in furtherance of the common purpose becomes the act of all, rendering each defendant as fully responsible therefor as if he had done the act himself. Reeves v. State, 135 Ga. 311 (1) (69 S. E. 536. The charge complained of in ground 10 was, therefore, not subject to the criticism made.

10. Where a ground of a motion for a new trial contains a lengthy excerpt from the charge of the court, of which at least a part is abstractly correct, and the only assignment of error is: “M.ovant contends that this is error because it is not a correct statement of the law,” it affords no cause for a new trial. Cobb v. State, 76 Ga. 664 (1); Miller v. State, 121 Ga. 135 (2) (48 S. E. 904); Graham v. State, 125 Ga. 48 (3) (53 S. E. 816). Tire 11th and 12th grounds of the amendment to the motion for a new trial come within this rule.

11. Where two or more thieves conspire to steal an automobile, the fact that the conspiracy .is formed in one county and the larceny committed in another does not lessen the responsibility of a conspirator who remains in the first county while the larceny instigated by him is being eom- ' mitted in the other. Penal Code (1910), § 45; Pinkard v. State, 30 Ga. 757 (4); Duckett v. State, 93 Ga. 415 (1) (21 S. E. 73). The court therefore did not err in charging as complained of in ground 13.

12. Where the uncontradicted evidence showed that the three indicted defendants carried the stolen automobile to the home of a fourth person, who on learning of the larceny advised them to take the machine back to its owner at once, but finally consented for them to leave it at his home, and promptly notified the sheriff of all these facts, and then testified as a State’s witness at the trial of those so indicted, the evidence neither required nor authorized an instruction to the jury upon the question as to whether or not the fourth person was an accomplice. Penal Code (1910), § 47. Ground 14 is therefore without merit.

13. The evidence authorized the verdict, and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.

Indictment for larceny of automobile; from Crisp superior court — Judge Gower. September 26, 1919.

James H. Dodgen, Jere M. Moore, for plaintiff in error.

J. B. Wall, solicitor-general, Jesse Grantham, contra.


text:
    11028.
    Webster v. The State.
    Decided April 13, 1920.
    Indictment for larceny of automobile; from Crisp superior court' ■—Judge Gower. September 26, 1919.
    Application for certiorari was denied by the Supreme Court.

      James H. Dodgen, Jere M. Moore, for plaintiff in error.

      J. B. Wall, solicitor-general, Jesse Grantham, contra.
   Luke, J.

This case is controlled by the decision this day rendered in its companion case, Danzley v. State, ante, 170 (102 S. E. 915).

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    11101.
    Dunson v. The State.
   Luke, J.

1. The evidence as to the date of the alleged bigamous marriage was conflicting, one witness testifying to a date more than four years prior to the return of the indictment, another to a date within the four-year period. The accused duly requested in writing an instruction to the jury that he should be acquitted if they believed, from the evidence, that the alleged offense occurred more than four years prior to the finding of the indictment. IE eld: Since no exception to the general rule touching the limitation of such a prosecution was alleged or proved, the refusal to give the requested instruction was error requiring the grant of a new trial. Penal Code (1910), § 30 (3).

2. “It is not essential, in an indictment for bigamy, to allege the time when, or the place at which, the prior marriage took place.” Murphy v. State, 122 Ga. 149 (1) (50 S. E. 48) ; Oliver v. State, 7 Ga. App. 895 (1) (67 S. E. 886). Where such averments are needlessly set forth, they are surplusage, and need not bo proved. The court therefore did not err in refusing the requested charge to the contrary.

3. A marriage by a female under the age of fourteen years may, notwithstanding its invalidity, be ratified by her after she has reached that age. Civil Code (1910), §§ 2931, 2935, Powers v. Powers, 138 Ga. 65 (1) (74 S. E. 759). The court did not err in refusing to instruct the jury to the contrary, or to give a requested charge which was easily capable of conveying a different meaning.

Decided April 13, 1920.

Indictment for bigamy; from Forsyth superior court — Judge Morris. November 1, 1919.

George F. Gober, for plaintiff in error.

John T. Dorsey, solicitor-general, contra.

4. The evidence was conflicting, one view of it authorizing a conviction, and the other demanding an acquittal. A new trial is ordered solely because of the error pointed out.'

Judgment reversed.

Broyles, C. J. and Bloodworth, J., concur.


text:
    11209.
    Robinson v. The State.
    Decided April 13, 1920.'
    Indictment for burglary; from Bibb superior court-—-Judge Graham presiding. December 11, 1919.

      John R. Cooper, W. O. Cooper Jr., J. A. Murray, for plaintiff in error.

      Charles H. Garrett, solicitor-general, contra.
   Broyles, C. J.

1. The excerpts from the charge of the court, complained of in the special grounds of the motion for a new trial, when considered in connection with the entire charge, contain no material error.

2. The evidence authorized the verdict, -and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11214.
    Rome Railway & Light Co. v. Foster.
   Broyles, C. J.

1. The court erred in charging the jury as follows: “It is the duty of the motorman, in propelling a car through the public streets, to notice the presence of other vehicles and pedestrians ahead of his car-, and at all times be watchful to see that the way is clear; and where he has reason to apprehend danger, or should in the exercise of ordinary care become cognizant of danger, he should regulate the 'speed of his car, so that it may be quickly stopped should occasion require it.” This charge clearly intimated that a failure by the motorman to do the things enumerated would constitute negligence; and questions as to diligence and negligence are for determination by the jury and not by the court. Columbus Railroad Co. v. Peddy, 120 Ga. 590 (6) (48 S. E. 149).

2. There were some inaccuracies in the charge as to the .contentions of the parties, as complained of in the 1st special ground of the motion for a new trial.

Decided April 13, 1920.

Action for damages; from Floyd superior court-—Judge Wright. December 16, 1919.

Dean & Dean, L. H. Covington, for plaintiff in error.

M. B. Eubanks, contra.

3. None of the other instructions excepted to, when considered in connection with the remainder of the charge of the court, contains material error.

4. The verdict was amply authorized by the evidence, but, because of the errors in the charge referred to above, another trial of the case is demanded.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


author: Per Curiam.

text:
    11219.
    Saylor v. The State.
    Decided April 13, 1920.
    A conviction of the offense of carrying a pistol without a license was demanded by the prisoner’s statement, as well as by the testimony on behalf of the State.
    Indictment for misdemeanor; from Calhoun superior court — Judge Harrell. December 3, 1919.

      Charles W. Worrill, for plaintiff in error.

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

Wyatt Saylor was indicted for the offense of carrying a pistol without a license, in violation of the act of 1910 (Ga. L. 1910, p. 134; Park’s Penal Code, § 348 (a). Two witnesses for the State testified positively to every fact -essential to the State’s case. These witnesses were unimpeached, and their testimony was not directly contradicted. The prisoner’s statement to the court and jury was, in its material part, as follows: “ On the first Saturday night in January I went to my home, and this Jesse Eogers, he come there ... I went on with him . . . When we got -in about ten steps of Mr. Dread’s home he handed me the pistol, and I takes the pistol in my hand and walks on in the kitchen where Naomi Dread and them was, and I loaded it for Jesse Eogers.” Upon being convicted the accused moved for a new trial, on the usual general grounds only; and, the trial judge having overruled that motion, he brought the case here for review. His counsel, by brief in this court, “contends that the jury failed to give him the benefit of the doubt to which he was entitled under the law, and thereby rendered an erroneous and illegal verdict.” The record discloses no legitimate cause for such a doubt.

Judgment affirmed.

Broyles, C. J., and Luke and Bloodworth, JJ., concur.


text:
    11224.
    Alexander v. The State.
    Decided April 13, 1920.
    Indictment for misdemeanor; from Taliaferro superior court — Judge Walker. November 28, 1919.
    The sheriff testified that in a swamp about 400 yards from the house of Felix Alexander (the defendant) they found “a lard can still apparatus and a barrel of mash such as is used in making liquor.” Felix Alexander’s field that he cultivated ran up to 50 feet of where they found the still on one side; on the other three sides the witness did not know whose land it was. He did not know of his own knowledge whose land it was or who was in possession of the swamp where the still was found, but supposed it was Felix Alexander’s. There was no other testimony as to ownership, possession, or control of the land. The defendant’s statement at the trial was: “ I never made any liquor in my life and had nothing to do with this still, if any one was found, and did not know it was there.”

      J. A. Beazley, for plaintiff in error.

      R. C. Norman, solicitor-general, Alvin G. Golucke, contra.
   Broyles, C. J.

The defendant was convicted, under section 22 of the act of 1917 (Ga. L. Ex. Sess. 1917, p. 18), of knowingly permitting apparatus for the distilling or manufacturing of intoxicating liquors to be located on his premises. There was no evidence that authorized a finding that the land upon which the apparatus was discovered was owned, controlled, or possessed by the defendant. His conviction, therefore, was contrary to law and the evidence, and the court erred in overruling his motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    11221.
    Atkinson v. The State.
    Decided April 13, 1920.
    Indictment for misdemeanor; from Taliaferro superior court — Judge Walker. November 28, 1919.
    It was testified that sprouted corn malt, such as is used for making liquor, was found in the buggy shelter of John Atkinson (the defendant), and that there was a still making liquor in the edge of a swamp or thicket about 350 yards behind his house and about 100 yards from the edge of his cotton field; it was about as far from his house as from the house of his father, Henry Atkinson. A witness for the State testified that he supposed the still was on John’s land or land he controlled, but that he (the witness) had no means of knowing this “except general appearances and the fact that his cotton field ran near there.” The defendant in his statement at the trial said that the still was not on his land or on land that he had control of, and he had nothing to do with the 'still, and that his farm was rented from his father. Henry Atkinson testified that the defendant “had no control or rights as to the woods where the still was found.”

      J. A. Beazley, for plaintiff in error.

      R. C. Norman, solicitor-general, Alvin G. Golucke, contra.
   Broyles, C. J.

The defendant was convicted, under section 22 of the act of 1917 (Ga. Laws, Ex. Sess. 1917, p. 18), of knowingly permitting apparatus for the manufacturing or distilling of intoxicating liquors to be located on his premises. There was no evidence that authorized a finding that the land upon which the apparatus was discovered was owned, controlled, or possessed by the defendant. His conviction, therefore, was contrary to law and the evidence, and the court erred in overruling his motion for a new trial. See Alexander v. State, ante, 175.

Judgment reversed.

Luke and, Bloodworth, JJ., concur.


text:
    11222.
    WRIGHT v. THE STATE.
    Decided April 13, 1920.
    The ’evidence did not authorize a finding that the accused had intoxicating liquor in his possession or control, and the conviction must be set aside.
    Indictment for misdemeanor; from Wilkes superior court — Judge Walker. December 13, 1919,

      Clement E. Sutton, for plaintiff in error.

      R. C. Norman, solicitor-general, contra.
   Luke, J.

The accused was indicted for possessing intoxicating liquors. The sheriff testified that he found “a still" (and it may be assumed, for present purposes, that it was a whisky still) on another person’s land, from which a well-beaten path led to the home of the accused; that on approaching the house of the accused, who was a negro, he saw an unknown white man run from it, that on entering it the witness found that the accused was away from home, but his sister and another woman were present; that on searching the house he found a small quantity of whisky concealed between the mattresses on a bed, and “also found in an old tub, with some water in it, a suit of overalls, which had smut on them and stains that looked like they were caused by some one working around a still.” The sister of the accused testified to the name of the white man and to his flight upon the sheriff’s approach, and that he had come to the house only a few minutes before the sheriff came, during her brother’s absence from home, and had brought the whisky with him, and was about to make himself a toddy, when, seeing the sheriff approach, he hid the whisky where the sheriff found it, and then ran.

The testimony of the State’s witness, standing alone, did not demand a conviction. But the testimony of the defendant’s witness, who was unimpeached, and whose testimony was uncontradicted and was corroborated in material particulars by the testimony of the State’s witness, did, when considered alone, demand an acquittal. The evidence did not authorize the defendant’s conviction. Penal Code (1910), § 1010; Smith v. Atlanta, 12 Ga. App. 816 (78 S. E. 472); A. C. L. R. Co. v. Drake, 21 Ga. App. 81 (4) (94 S. E. 65).

Judgment reversed.

Broyles, C, J., and Bloodworth, J., concur.


text:
    11226.
    WARD v. CANTRELL.
    Where in defense to the payee’s suit on promissory notes the maker testified that when one of the notes became due, a certain bank holding them as collateral security sued out, as transferee, an attachment against him which was levied on certain restaurant fixtures in his possession for which the notes had been given, and he surrendered the fixtures to the bank upon its agreement to turn over the' notes to him, which it failed to do, and where the plaintiff testified in rebuttal that he had never authorized the bank to sue upon the notes, and that his own note, for which the notes sued on were held as collateral, was paid by him and the notes sued on were returned to him by the bank before his note became due, and that nothing was ever paid him on the notes sued on, a verdict for the plaintiff was authorized. If the defendant was defrauded by the bank, his remedy was against it and not against the plaintiff.
    Decided April 13, 1920.
    Complaint; from city court of Carrollton — Judge Beall. December 5, 1919.'

      Emmett Smith, for plaintiff in error.

      Smith & Smith, contra.
   Broyles, C. J.

The record makes the following case: J. M. Cantrell brought suit against W. E. Ward on two promissory notes, dated October, 1916, for $60 and $90 respectively. The note for $60 was due November 15, 1916, and the note for $90 was due December 15? 1916, and both notes bore interest at the rate of 8 per cent, jier annum. The plaintiff introduced the notes sued on and rested. The defendant testified, that the notes sued on were given for certain restaurant fixtures, which at the time of the purchase 'and the making of the notes were in a storehouse on the south side of Newnan street in Carrollton, Georgia; that in the latter part of November, 1916, these fixtures, which were the consideration of the notes sued on, were levied on by virtue of an attachment returnable to the March term, 1917, of the city court of Carrollton, which was sued out by the First National Bank of Carrollton, Ga., as transferee, in the sum of $150, against Ward, the defendant; that the notes had been put up as collateral by the plaintiff with the First National Bank to secure a note due by him (the plaintiff) to the bank; that the affidavit upon, which the attachment was based was made by J. O. Newell, and recited that the amount was due “for the purchase-money of one stock of goods with all fixtures, furniture, and stove, and all kinds of goods now located in the storeroom on the south side of New-nan street, Carrollton, Ga., where said Ward is now doing business;” that at the time the attachment was levied only one of the notes was due; that a short time thereafter J. O. Newell, attorney of record for the First National Bank, came down to the defendant’s place of business and stated to him that if he would not contest the attachment and would turn over to the bank the fixtures, the bank would cancel the debt represented by the notes, and would turn over the notes to the defendant; that the defendant agreed to this proposition and did not turn over all the fixtures, and that the defendant immediately closed up his place of business and moved back to the country, some twelve miles from Carrollton; that the defendant does not know what became of the said fixtures; that Newell had the notes sued on in this case upon the day he made the proposition, and that defendant never did get back his notes. The original attachment sued out by the bank was then admitted in evidence. Upon this attachment were the following entries: “Pd. on within January 11, 1917, $13.96.”' “ Bal. from sale of property.” “ All J. P. cost paid out of sale.” The plaintiff testified as follows, in rebuttal: “I turned over the notes sued on in this case to the First National Bank as collateral for a note I was due the bank. The day the note became due that I owed the bank I paid it off, and got these notes I am suing on, before my note to the bank was due. I never at any time authorized the First National Bank, J. 0. Newell, nor any one else to sue on these notes. I have never been paid anything on these notes.” All of the above evidence was undisputed. The jury returned a verdict for the plaintiff for the full amount of the notes sued on, with interest and costs of suit.

Wo think, under the above-stated circumstances, the verdict was authorized. If the defendant has been defrauded in this case his remedy is against the bank, and not against the plaintiff.

The amendment to the motion for a new trial shows no cause why the judgment below should be reversed.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Bkoyles, C. J.

text:
    11230.
    Edwards v. The State.
   Bkoyles, C. J.

1. The court did not err in overruling the demurrer to the indictment.

(a) The last ground of the demurrer is too general and indefinite to raise the question of the constitutionality of section 22 of the act of the General Assembly approved March 28, 1917 (Ga. L. Ex. Sess. 1917, p. 18). See, in this connection, Rooks v. Tindall, 138 Ga. 863 (70 S. E. 378); Commercial Bank v. Blassingame, 147 Ga. 636 (95 S. E. 222) ; Crapp v. State, 148 Ga. 150 (95 S. E. 993).

Decided April 13, 1920.

Indictment for misdemeanor; from Taliaferro superior court — Judge Walker. December 12, 1919.

1. The indictment charged that on January 8, 1919, the defendant “did knowingly permit and allow and did have and possess and locate on his premises apparatus for the distilling and manufacturing of spirituous, vinous, malted, fermented, and intoxicating liquors and prohibited liquors and beverages, contrary to the laws of said State,” etc. The demurrer was on tlie following grounds: (1) The indictment does not describe the premises on which it is alleged the apparatus was located. (2) The nature and kind of apparatus is not described. (3) No crime is charged, for the liquors described are such as are defined in the act of the General Assembly approved November 17, 1915, and not those described in the act of March 28, 1917, which makes it a misdemeanor to allow the location on one’s premises of apparatus for the manufacture of liquors. (4) The indictment charges the defendant with having apparatus such as is defined in the act of November 17, 1915, and “said allegation sets out no crime under the law.” (5) The act approved March 28, 1917, under which the indictment was found, does not make it a crime for a person to have for himself such apparatus on his premises, but instead makes it a misdemeanor for him to permit any one else to have or locate such apparatus on his premises. (6) “Because said indictment sets out no crime punishable by law against this defendant, for the reason that defendant is indicted under section 22 of the act of the General Assembly of Georgia approved March 28th, 1917, and because said section 22 of said act contains matter different from what is expressed in the title of said act. Said portion of said act is unconstitutional in that it is in violation of paragraph 8 of section 7 of article 2 of the constitution of Georgia, said section dealing with the validity of the laws enacted by the General Assembly of Georgia.”

(6) The other grounds of the demurrer are without substantial merit. See, in this connection, McRae v. State, 23 Ga. App. 13 (97 S. E. 410).

2. The excerpt from the charge of the court, complained of, is not erroneous for any reason assigned.

3. There was no evidence which authorized the defendant’s conviction of the offense charged, and the court erred in overruling his motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

2. The following instructions to the jury were complained of: “TJnder this law the State has to show you, before you would be authorized to find th'e defendant guilty (and show you beyond a reasonable doubt), that this defendant did have or possess, or that there was located on his (the defendant’s) premises, some kind of apparatus for the distilling or manufacturing of such liquor and beverages as set out in the indictment. If you should find there was apparatus for the purpose of distilling or manufacturing liquors and beverages as specified in this act, but you find they were located on premises other than the premises of the defendant, you could not find the defendant guilty under this indictment. If you find there was such apparatus of the kind aforestated, for the purpose of making liquor, and from the evidence and the description of the place where it is located you have a reasonable doubt in your mind (which reasonable doubt will be explained to you in my further instructions) whether or not it was on the defendant’s premises, or if he was in actual control of it, if you have a reasonable doubt about that, you must give the defendant the benefit of that doubt and acquit him.” It was alleged that “said charge was error for the reason that it instructs the jury that the State could make out a prima facie case against the defendant by showing a still to be located on his premises, when the law does not make him prima facie guilty unless the evidence shows the still to have been located on premises of which the defendant was in ‘ actual possession.’ The court nowhere instructs the jury in this charge that the burden would not rest upon the defendant of showing his innocence, even though the premises belonged to him, if he was not in ‘actual possession ’ of the premises, and there is no law placing the burden on the defendant of showing his innocence, even though distilling apparatus is located on his premises, unless the defendant be in ‘actual possession’ of the same.”

3. The sheriff testified: that at a spring about 150 or 200 yards from the house of Tom Edwards (the defendant), in January, 1919, he found an old lard can, which was smoked and black on the outside, and something resembling mash, and found hidden in the woods near the spring a cap for this can, which was an ordinary lard-can top with a piece of wood fastened to it for a pipe to go into. He found also a 5-gallon keg with a hole bored in the top and one in the side at the bottom, and a kit in which some one had had fire, and a tub with a little more than a double handful of mash in it. It seemed to be corn meal and syrup mash and to have been in the tub for some time. Traces of barrels were on the ground, and there was a fresh wagon track leaving the defendant’s house and going straight down to this spring, and it turned around there and went oil in another direction. The spring is on land belonging to Mr. J. H. Battle and not in cultivation, and several of his tenants live near it; and the witness could not swear that the defendant had anything more to do with .the land on which the spring was situated than three or four other tenants, or that it was actually in the defendant’s possession or control, though he thought that the spring was on the defendant’s premises. There was a path leading from the defendant’s house towards the spring, and an old road went by his house and on down to the spring, and this path went out around his garden and into the old road about 100 yards from the spring. Another witness testified substantially to the same effect, and that the defendant cultivated a small patch of land between the spring and his house, which came down within 150 yards of the spring. There were bushes and shrubbery between this cultivated land and the spring. There was testimony for the defendant to the effect that the spring referred to by the preceding witnesses was on land not rented to the defendant, and that he had nothing to do with it and got his water from a well at his house. He stated that he knew nothing of the lard can and other things found by the sheriff.

M. L. Felts, for plaintiff in error.

R. C. Norman, solicitor-general, contra.


text:
    11232.
    Andrews v. Mayor and Aldermen of Savannah.
   Broyles, C. J.

1. The charter of the City of Savannah as amended by the act of the General Assembly of Georgia, approved August 16, 1915 (Ga. L. 1915, p. 825), provides, that “no action for damages to person ■or property . . . shall bo instituted against the City of Savannah ■ unless within six months from the'happening or inflicting of the injury complained of the complainant . . . shall give notice to the mayor and aldermen of said city of such injury in writing.” In the instant case the suit was against the Mayor and Aldermen of the City of Savannah for personal injuries, but the plaintiff’s petition showed that the required notice was not given until more than six months after the infliction of the injury sued for. The court therefore did not err in dismissing the petition, on the defendant’s motion.

Decided April 13, 1920.

Action for „ damages; from Chatham superior court — Judge Meldrim. November 12, 1919.

Oliver & Oliver, for plaintiff in error.

Shelby Myrick, Edwin A. Cohen, contra.

2. A constitutional question can not be considered by the reviewing court unless it is made during the trial of the case in the lower court. It is too late to raise such a question for the first time in the higher court. Hendry v. State, 147 Ga. 260 (8) (93 S. E. 413) ; Bolton v. Newman, 147 Ga. 400 (94 S. E. 236; Scoggins v. State, 24 Ga: App. 677 (102 S. E. 39). Counsel for the plaintiff in error contend in their brief that the provision of the charter of the City of Savannah referred to is invalid and unconstitutional. It does not appear, however, from the record or the bill of exceptions that this question was made in-the lower court, and, accordingly, it can not be considered by this court, or by the Supreme Court, to which court this case would have to be transferred if a constitutional question had been raised in the lower court.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11235.
    CORNELIUS v. ANDERSON, executor, et al.

    1. Where, in response to an offer to accept goods either for sale on a commission basis or on a straight sale, the goods are shipped without notice as to which basis is adopted by the shipper, the person to whom they are shipped has the right to elect on which basis he will accept them.
    2. Where one to whom goods were thus shipped elected to handle them on a commission basis, and on that basis sent to the shipper an account of sales of the goods at certain weights and a check for the amount thereby shown to be due the shipper, and the shipper accepted and cashed the check,- and in correspondence with the other party virtually acquiesced in and agreed to the statement as to the weights, but contended that the shipment was made on a straight sale, and therefore that the check, which was for an amount less than would be due had the transaction been a straight sale, did not constitute an accord and satisfaction, and this was the only issue raised between the parties until the shipper brought suit for a balance alleged to be due for the goods, his contention in the suit that the weight of the goods was more than that reported to him by the defendant was immaterial.
    Decided April 13, 1920.

      (a) “Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he can not, after litigation has. begun, change his ground and put his conduct upon another and different consideration. He is not permitted to thus mend his hold.”
    3. Tlie trial judge did not err in directing a verdict for the defendant, and the judge of the superior court did not err in overruling the certiorari.
    Certiorari; from Fulton superior court — Judge Pendleton. October 24, 1919.

      Holbrook & Corbett, for plaintiff.

      George P. Whitman, for defendant.
   Broyles, C. J.

The controlling question in this case is whether the defendant was authorized to handle, on a consignment basis, the potatoes shipped to him by the plaintiff. The record shows, without dispute, that the defendant offered to accept the potatoes, either on such a basis or on that of a straight sale, and that the plaintiff shipped them without notifying the defendant on which basis he wanted them handled. Under these circumstances the defendant had a right to elect on which basis he preferred to handle them, and the uncontradicted evidence is that he handled them on a commission basis, and paid the plaintiff what was due him on that basis. Upon the trial of the case there was no material issue of fact. The question whether the weight of the potatoes was more than as reported by the defendant was immaterial, since the correspondence between the parties, after the controversy had arisen as to whether the shipment was on a straight sale or on a commission basis, shows that the plaintiff virtually acquiesced in and agreed to the weights as reported to him by the defendant, and that the plaintiff’s sole contention, prior to the filing of the suit, was that he had shipped the goods on a straight sale basis, and, therefore, that the check from the defendant (which he accepted and cashed) for an amount less than what would have been due him on that basis did not constitute 'an accord and satisfaction. “Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he can not, after litigation has begun, change his ground and put his conduct upon another and different consideration. He is not permitted to thus mend Ins bold. He is estopped from doing it by a settled principle of law.”, Fenn v. Ware, 100 Ga. 563, 566 (28 S. E. 238); Bedingfield v. Bates Advertising Co., 2 Ga. App. 111 (58 S. E. 320), and cit.

It follows from wliat bas been said that the trial judge did not err in directing a verdict for the defendant, and that the certiorari was properly overruled.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11240.
    GEORGIA LAND & SECURITIES CO. v. CHAPMAN.
    Decided April 13, 1920.
   Broyles, C. J.

1. The court, in admitting the documentary evidence referred to in the 1st special ground of the motion for a new trial, erred in restricting it to the purpose of comparison as to the defendant’s handwriting. Under all the facts of the case this evidence should have gone to the jury without any restriction whatever.

2. A ground of the motion for a new trial which assigns error on the refusal to allow a witness to answer a certain question, hut does not show that at the time of the ruling complained of the court was informed as to the answer expected from the witness, is too defective to be considered.

3. The court erred in allowing, over the objections of the plaintiff, the defendant’s counsel to read to the jury a case from the Georgia Reports, and to argue, in effect, that the decision of the Supreme Court in that case, under the facts of both cases, was controlling as to a vital issue in the case being tried. Douglass v. Boynton, 59 Ga. 283; Hudson v. Hudson, 90 Ga. 581 (3) (16 S. E. 349); Central of Georgia Ry. Co. v. Hardin, 114 Ga. 548 (5) (40 S. E. 738).

4. The court having charged the jury upon the subject of the impeachment of witnesses, it was error, under all the facts of the case, to fail to instruct them, even in the absence of an appropriate written request, that if a witness swear wilfully and knowingly falsely, his testimony ought to be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence.

5. The special grounds of the motion for a new trial not dealt with above are without substantial merit, or show errors which are not likely to recur upon another trial.

6. As there must be another trial of the case on account of the several errors pointed out, the sufficiency of the evidence to support the verdict is not passed u'pon.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

Complaint; from Liberty superior court — Judge Sheppard. December 18, 1919.

David. L. Chapman was sued by the Georgia Land & Securities Company on certain promissory notes purporting to have been signed by him and payable to Silas W. Ferguson, one for $1,200 principal and others for interest thereon, dated July 15, 1916, to secure which, it was alleged, he executed a conveyance of certain land to Ferguson. In his answer and his evidence the defendant denied that he had signed the notes or the deed. The verdict was for the defendant. The documentary evidence referred to in paragraph 1 of the foregoing decision was a voucher of the Georgia Land & Securities Company, dated July 17, 1916, for $1,200, payable to the order of David L. Chapman and indorsed in his name, and admitted to have been indorsed by him, which contained the words: “In full for loan upon real estate security, further evidenced by my note, dated July 15, 1916, in favor of Silas W. Ferguson, of Worcester, N. Y., for $1,200.00, for whose account this money is received from you.” When offered in. evidence by the plaintiff counsel for the defendant objected to its introduction, upon the ground that it was irrelevant and immaterial except for the purpose of comparison of the signature of Chapman thereon with the signatures of the. notes and the deed. The trial judge sustained the objection and admitted it in evidence solely for this purpose. In the 1st special ground of the plaintiff’s motion for a new trial it is contended that the court erred in thus rejecting this writing as material evidence for the plaintiff on the other issues in the trial.

Oliver & Oliver, for plaintiff.

Parker & Parker, for defendant.


text:
    11243.
    Kelley, adm’r, v. Hines, director-general.
   Broyles, C. J.

1. This suit was brought under section 2782 of the Civil Code of 1910, for the homicide of an employee of the defendant railroad. In the petition there was nothing that showed that at the time of the homicide the deceased and the defendant carrier -were engaged in interstate commerce. The statement in the defendant’s answer, that they were so engaged, can not be considered by this court in passing upon the question as to whether the petition was properly dismissed on general demurrer. Accordingly, upon this question the provisions of the “employer’s liability act”'of this State, and not those of the Eederal act, are controlling.

2. Under section 2782 of the Civil Code of 1910 a recovery for the homicide, of an employee of a railroad company can not be had where he brought about his death by his own carelessness amounting to a failure to exercise ordinary care, or where by the exercise of ordinary care he could have avoided the consequences of the defendant’s negligence.

3. In cases of personal injuries the plaintiff, as a conscious human agent, is bound to exercise ordinary care to avoid the consequences of the defendant’s negligence, by remaining away, going away, or getting out of the way of a probable or known danger; and if his duty requires him to remain in the presence of danger, he must exercise the ordinary care required of a prudent man under the particular circumstances. Mansfield v. Richardson, 118 Ga. 250 (3) (45 S. E. 269).

4. If at the time of the injury an ordinarily prudent person, in the exercise of that degree of care and caution which such a person generally uses, would have reasonably apprehended that the defendant might be negligent at the time when and place where the injury occurred, and, so apprehending the probability of the existence of such negligence, could have taken steps to prevent the injury, then the person injured can not recover, if he failed to exercise that degree of care and caution usually exercised by an ordinarily prudent person to ascertain whether the negligence which might have been reasonably apprehended really existed. If there is anything present at the time and place of the injury which would cause an ordinarily prudent person to reasonably apprehend the probability, even if not the possibility, of danger to him in doing the act which he is about to perform, then he must take such steps as an ordinarily prudent person would take to ascertain whether such danger exists, as well as to avoid the consequences of the same after its existence is ascertained; and if he fails to do this and is injured, he will not be allowed to recover, if by taking proper precautions he could have avoided the consequences of the negligence of the person inflicting the injury. A railroad-track is a place of danger, and one who goes thereon is bound to know that he is going into a place where he is subject to the dangers incident to the operation of trains upon that track. Western & Atlantic R. Co. v. Ferguson, 113 Ga. 712, 713 (39 S. E. 306, 54 L. R. A. 802).

5. An employee of a railroad company who voluntarily sits down by its tracks and falls asleep in such close proximity thereto as to cause him while sleeping to be struck and killed by a passing train is guilty of such gross negligence as will prevent a recovery for his homicide, although the defendant carrier may be guilty of contributory negligence. Parish v. W. & A. R. Co., 102 Ga. 285 (29 S. E. 715, 40 L. R. A. 364), and cit.

6. The decision in the case of Gray v. Southern Ry. Co., 167 N. C. 433 (83 S. E. 849), cited and relied on by counsel for the plaintiff in error, was reversed by the Supreme Court of the United States (241 U. S. 333, 36 Sup. Ct. 558, 60 L. ed. 1030).

Decided April 13, 1920.

Action for damages; from Wilkinson superior court — Judge Park. November 26, 1919.

Victor Davidson, J. F. Bloodworth, for plaintiff.

H. W. Johnson, for defendant.

7. Under the above rulings, the plaintiff’s petition showed no right of recovery against tfie defendant, and the court did not err in dismissing it on general demurrer.

Judgment affirmed.

Luke J., concurs. Bloodworth, J., disqualified.


text:
    11245.
    Baynes v. The State.
   Luke, J.

1. The indictment is for assault with intent to murder, but embraces the minor offense of unlawfully shooting at another, as denounced by section 115 of the Penal Code (1910). The verdict is in part as follows: “ We, the jury, find the defendant guilty of unlawful shooting/' The remainder of the verdict fixes a punishment appropriate to the minor offense mentioned. The verdict is attacked as being void for uncertainty with reference to the offense referred to, and as being equivalent to an acquittal. Held:

[a) While the trial judge should not have received the verdict in the form in which it was returned, hut should have taken proper steps to have it put in some one of the usual forms, yet, under the decision of the Supreme Court in Arnold v. State, 51 Ga. 144, it can not be held that the verdict as received was so uncertain as to be absolutely void. See also Espy v. State, 19 Ga. App. 743 (92 S. E. 229), and Autrey v. State, 23 Ga. App. 143 (97 S. E. 753).

fib) The punishment prescribed by the jury is conclusive of the want of any intention on their part to acquit the accused. Park’s Penal Code, § 1059.

2. After correctly instructing the jury to fix a maximum punishment if they found the accused guilty of assault with intent to murder, the court further instructed them that if they found the defendant guilty of unlawfully shooting at another, they should “ fix the minimum punishment not less than one year nor longer than’ four years, or any time between one and four years, as the jury should see proper.” Under the latter instruction the jury fixed the punishment at a minimum of two years and a maximum of four years; but the accused complains of that instruction, because it does not direct the jury to fix a maximum as well as a minimum punishment. Held-. While the particular part of the charge complained of was erroneous for the reason assigned, yet the jury having understood and performed their duty, by prescribing both a minimum and a maximum punishment, -the error became harmless. See Ripley v. State, 7 Ga. App. 679 (1) (67 S. E. 834).

Decided April 13, 1920.

Indictment for assault with intent to murder; from Morgan superior court — Judge Park. December 20, 1919.

Eugene M. Baynes, for plaintiff in error.

Doyle Campbell, solicitor-general, contra.

3. The evidence authorized the verdict, and the trial judge did not err in overruling the motion for a new trial.

(a) On its facts, this case is easily distinguishable from Kendrick v. State, 113 Ga. 759 (39 S. E. 286), and subsequent decisions to the same effect. In every case of assault with intent to murder by unlawfully shooting at another, the intent with which the shooting is done is a question exclusively for the jury. See Park’s Penal Code, § 97, and annotations under the catchword “Intent” (p. 107). In the instant case the prosecutor’s testimony alone is sufficient to support the verdict, but it discloses no more evidence of a specific intent to kill than must necessarily appear in every case of unlawfully shooting at another. The testimony of another witness that “Nine (the accused) told Clyde (the prosecutor) he was shooting at him to kill him” did not bring the ease within the rule announced in Kendrick’s case, supra, it not appearing when or under what circumstances such declaration of the accused ivas made, and the prisoner’s statement to the court and jury containing an admission that he had a difficulty with the prosecutor at the time and place in question, and that some shooting was done then and there, and denying only that he was the person who did the shooting.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    11258.
    Gordon v. The State.
   Luke, J.

1. In the absence of an appropriate written request for fuller instructions, the following charge was a sufficient instruction with reference to the burden of proof, and the degree thereof essential to a conviction: “Notwithstanding this indictment, the defendant enters into the trial of this case with the presumption of innocence in his favor, and that presumption remains with the defendant throughout the entire trial, in the nature of evidence, as a shield and protection, until the State satisfies your minds by the evidence in the case, beyond a reasonable doubt, of the defendant’s guilt.”

2. An instruction to the jury with reference to the prisoner’s statement, which follows, either literally or in substance, the language of section 1036 of the Penal Code (1910), omitting the last sentence only of that code-section, can never afford cause for a new trial. Pitts v. State, 114 Ga. 35 (3) (39 S. E. 87); McDonald v. State, 129 Ga. 452 (2) (59 S. E. 242): Washington v. State, 136 Ga. 66 (2) (70 S. E. 797).

Decided April 13, 1920.

Reheabing denied May 12, 1920.

Indictment for sale of liquor; from Jones superior court'—■ Judge Park. December 20, 1919.

J. B. Jackson, for plaintiff in error.

Doyle Campbell, solicitor-general, contra.

3. Whisky is, as a matter of law, an intoxicant, and this fact need not he proved in a prosecution for selling intoxicating liquors. Hodge v. State, 116 Ga. 852 (1) (43 S. E. 255); Maddox v. Eatonton, 8 Ga. App. 817 (2) (70 S. E. 214). The court therefore did not err in failing to submit this fact to the determination of the jury. Mundy v. State, 9 Ga. App. 835 (5) (72 S. E. 300).

4. The evidence authorized' the verdict, and the trial judge did not err in overruling the motion for a now trial.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    11264.
    Adams v. The State.
    Decided April 13, 1920.
    Accusation of larceny; from city court of Brunswick — Judge Krauss. December 23, 1919.
    Larceny of a handbag of 0. L. Wright was charged in the accusation. He testified that on September 18, 1919, at 5:30 o’clock in the morning, he left Ms suit-case in his room at the house in which he boarded, and that when he returned at noon it was gone, and he never saw it again; he saw Willie Adams, the defendant, who was one of the other' persons living in the house, and asked him about the suit-case, and Adams said he knew nothing about it, but believed ho knew somebody who did know. Mrs. Griffin testified that she “ran the house” in which Wright and Willie Adams roomed, and she remembered seeing the suitcase in Wright’s room when her daughter was cleaning up the room on the day on which the suit-case disappeared; that she left her daughter in the room and went down stairs, and Willie Adams was then up stairs in his room; she did not know when he left the house; he never came back after that day; when he was working he left the house early in the morning; she did not know whether he was working then or not; her house was a rooming house. ' A policeman testified, that he went to a certain house to arrest the defendant and found him asleep, and told him he was under arrest, and he said: “I know what you are after me about; it is about that suit-case; I did not take it, but I know who did;” that the defendant said no more, and was taken to jail; that the arrest was in the latter part of October, and the witness had then and for a considerable time before that time a warrant for his arrest; the defendant had run on seeing the witness before that time. No additional witness testified. The defendant, in his statement at the trial, said that he left Mrs. Griffin’s house early in the morning of the day on which they said the suit-case was stolen, and he carried Arthur Brown’s grip to a designated place and went to his work; he returned from his work about 6 o’clock, was asked about the suit-case by Mrs. Griffin, and told her that he knew nothing about it; when he went to his room that night he found that his bed had been taken down, and he left and did not return; from that time he stayed at his mother’s house, where he was found at the time of his arrest; he told the officer that he did not take the suit-case, but knew who did, and that when he got before the court and told what kind of house they were running they would know who got the suitcase; he did not know that this particular one got it, but believed that some one allowed in the house got it.
   Broyles, C. J.

Under the undisputed facts of this case, the circumstantial evidence relied upon to convict the defendant failed to exclude every reasonable hypothesis save that of his guilt; and, therefore, his conviction was contrary to law and the evidence.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

Frank H. Harris, for plaintiff in error.

F. M, Scarlett Jr,, solicitor, contra:


text:
    11265.
    Newsome v. The State.
   Luke, J.

1. No question is presented for decision by a ground of motion for a new trial in the following language: “ Because the court overruled defendant’s motion for continuance, which was first made on Aug. 20th, and renewed and heard and overruled on Aug. 21st, 1919, which was the day said case was tried.” Such a ground of a motion for a new tidal is incomplete, in that it fails to disclose the ground of the application for continuance, and, further, in that it fails to set out or refer to an exhibit setting out the evidence considered by the presiding judge in passing upon the application. Park’s Penal Code, § 986; Delk v. State, 99 Ga. 667 (4) (26 S. E. 752).

Decided April 13, 1920.

Indictment for sale of liquor; from Glascock superior court — Judge Walker. December 12, 1919.

J. C. Newsome, for plaintiff in error.

R. C. Norman, solicitor-general, contra.

2. A ground of a motion for a new trial that is not approved by tlio trial judge and which he expressly declines to approve will not be considered by this court. See Park’s Penal Code, § § 1090, 1090 (a), and annotations under catchword “Approval” (p. 761).

3. Where a ground of a motion for a new trial is based either in whole or in part upon facts not otherwise shown by the record, and which did not transpire in open court or within the immediate knowledge of the presiding judge, unless they are made to appear by supporting affidavits annexed to the motion, it is proper for the judge to decline to approve the ground or certify to the truth of such recitals of facts.

4. “The affidavits of jurors may be taken to sustain, but not to impeach their verdict.” Civil Code (1910), § 5933.

5. The court charged: “All the law requires is moral and reasonable certainty. So in this case, if you are satisfied to a moral and reasonable certainty, and that beyond a reasonable doubt, it would be your duty to find the defendant guilty.” Such a charge is not subject to the criticism that it applies to a criminal case the degree of proof applicable only to a civil case. Considered in connection with the entire charge, it was not error for any reason assigned. See Park’s Penal Code, § 1012, and annotations.

6. Complaint is made of the following charge: “When I say ‘ a reasonable doubt’ I do not mean some mere vague conjecture or possibility, conjured up in the mind of the jury for acquitting the defendant, but such a doubt as arises in the mind of an Honest juror seeking the truth, and leaves it wavering and doubtful as to the truth of the transaction. It may arise from having heard the ease, tlio want, weakness, or insufficiency of the evidence.” Held: The charge was free from error. Peterson v. State, 47 Ga. 525 (5) ; Coob v. State, 11 Ga. App. 52 (1) (74 S. E. 702) ; Dumas v. State, 63 Ga. 501 (8) ; Fletcher v. State, 90 Ga. 468 (2) (17 S. E. 100).

7. The evidence authorized the verdict, and there was no error in denying the motion for a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11269.
    Reynolds v. The State.
    Decided April 13, 1920.
    Indictment for murder; from Putnam superior court — Judge Park. December 20, 1919.

      Davidson, Callaway & DeJarnette, for plaintiff in error.

      Doyle Campbell, solicitor-general, contra.
   Broyles, C. J.

1. The alleged newly discovered evidence is merely cumulative and impeaching in its character, and, therefore, under repeated rulings of the Supreme Court and of this court, affords no ground for a new trial.

2. There was some evidence which authorized the defendant’s conviction of manslaughter, and, the finding of the jury having been approved by the trial judge, this court is without jurisdiction to interfere.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11278.
    Jones v. The State.
    Decided April 13, 1920.
    Conviction of manslaughter; from Crawford superior court — Judge Mathews. December 19, 1919.

      John R. Cooper, R. H. Culverhouse, W. J. Wallace, for plaintiff in error.

      Charles H. Garrett, solicitor-general, contra.
   Broyles, C. J.

Under the facts of the case, none of the exceptions to the charge of the judge, or to his refusal to charge as requested, is well taken; the verdict was amply authorized by the evidence, and the court did not err in refusing a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Broyles, 0. J.

text:
    11281.
    Williams v. The State.
   Broyles, 0. J.

1. It is well settled that while it is not incumbent upon the judge, in the absence of a timely and appropriate written request, to charge upon the subject of the impeachment of witnesses, yet where that subject is referred to in the charge, all of it that is material and applicable to the facts' of the ease should be given. Rouse v. State, 2 Ga. App. 184 (7) (58 S. E. 416); Harper v. State, 17 Ga. App. 561 (2) (87 S. E. 808).

2. In the chargs of the court in this case the only reference to the law upon tlie impeachment of witnesses was as follows: “ I charge you that a witness may be impeached by contradictory statements. This is one of the methods of impeachment recognized by the law.” Under the above ruling, and the facts of the case, the court erred in not giving fuller and more adequate instructions upon this subject, although no request to do so, or to charge at all upon the subject, was presented. On account of this error another trial of the case is required.

Decided April 13, 1919.

Indictment for assault with, intent to murder; from Berrien superior court — Judge Dickerson. January 10, 1920.

Story & Story, for plaintiff in error.

J. D. Lovett, solicitor-general, contra.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    11288.
    Spaulding v. The State.
   Broyles, C. J.

1. The allowance of an amendment to the accusation, over the objections of the defendant and before he had pleaded to the merits of the case, can not be made a ground of a motion for a new trial. The exception should have been preserved and brought up by exceptions pendente lite. However, there is no merit in such an assignment of error, as the solicitor of a city court can at any time before the defendant has pleaded to the merits amend an accusation in any particular, provided the affidavit upon which it is based will support the accusation as amended, and provided further that such amendment is not forbidden by the act creating the court or by any act amendatory thereof. Goldsmith v. State, 2 Ga. App. 283, 286 (58 S. E. 786), and cit.; Bishop v. State, 22 Ga. App. 784 (97 S. E. 251).

2. The excerpt from the charge of the court complained of in the 5th ground of the motion for a new trial is not erroneous for any reason assigned.

3. The word “maim,” as used in section 752 of the Penal Code of 1910, implies the infliction of some injury which deprives the animal of, or renders useless or partially useless, some useful organ or member — an organ or member useful to its own locomotion or defense, or useful to its owner in the way in which the animal was employed. And such injury must be permanent. Bailey v. State, 65 Ga. 410; Patton v. State, 93 Ga. 111, 116 (19 S. E. 734, 24 L. R. A. 732); Brown v. State, 127 Ga. 287 (56 S. E. 405). See also, in this connection, Black’s Law Dict. 741; 3 Words & Phrases (2d series), 208; 2 Bouvier’s Law Diet. (Rawle’s 3d rev.) 2063. Under this ruling the charge of the court complained of in the 6th ground of the motion for a new trial was error.

4. Under the particular facts of the case, the court erred in overruling the special ground of the motion for a new trial which was based upon alleged newly discovered evidence. This evidence is not merely cumulative and impeaching in its character, and is of such a character that it would probably cause a different verdict upon another trial.

Decided April 13, 1920.

Accusation of misdemeanor; from city court of Brunswick — Judge Krauss. November 22, 1919.

Tbe accusation charged that the defendant maliciously shot and maimed a described male cow of Mrs. Ii. Wiggins. It was testified that the described animal was shot with a shotgun by the defendant, in the side and foreshoulder and in the testicles, and lay around in the pen for three or four days and was treated for the wounds; that the testicles were bloody and swollen, and “he can not serve the cows.” There was a verdict of guilty, and the case came to this court on exceptions to the overruling of a motion for a new trial.

1. An amendment changing the date of signing the accusation from the 9th to the 10th of May (the date of the affidavit on which the accusation was based) was allowed, over objection; and exception to this is taken in the motion for a new trial.

2. The court charged the jury as follows: “The State of Georgia, in the manner and form provided by law, has charged and accused the defendant . . with the offense of misdemeanor, alleging in substance that the defendant did, in the county of Glynn, on the day named in the indictment or accusation, on April 10th, 1919, maliciously shoot and maim a certain male cow or bull.” In the 5th ground of the motion for a new trial it is alleged that this was error because, “ under the section under which the defendant was accused, it was not in violation of law to shoot a male cow or bull.”

3. The court charged: “If you find, from the evidence, that the defendant did maliciously shoot said bull in his private parts, balls, or testicles, and that rendered him less able to perform the functions of a bull as nature had endowed him before that time, then I charge you that if you find that condition to be true, such would be a maiming of the bull as required by the law to be shown; and in that event it would be your duty to find the defendant guilty.” In the 6th ground of the motion for a new trial this is alleged to be error because it was iu effect an instruction that if the injury was only for a day¿ and to the slightest extent rendered the bull less able to perform, it would amount to maiming, whereas the word "maim," as defined by law-writers and as used in the law of this State, is the infliction of some permanent injury.

5. The court erred m overruling the motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

4. The alleged newly discovered evidence was in substance that six or seven-days after the shooting of the bull of Mrs. Wiggins as claimed by the State, the same bull was seen in the woods feeding, and appeared to be all right; that ten days or two weeks after the alleged shooting the bull served one of the cows in a certain pen, and three or four days later he served another cow, and that at the time he served these cows he was not maimed in any way.

J. T. Colson, for plaintiff in error.

F. M. Scarlett Jr., solicitor, contra.


text:
    11289.
    Tucker v. The State.
    Decided April 13, 1920.
    Indictment for assault with intent to murder; from Hancock superior court — Judge Park. January 2, 1920.

      Wiley & Lewis, for plaintiff in error.

      Doyle Campbell, solicitor, contra.
   Luke, J.

1. Where a long excerpt from the charge of the court is assigned as error on the ground “ that it was an expression of opinion by the judge presiding, as to what had been proved on the trial of the case,” without stating what the expression was, or pointing out the particular part or parts of the excerpts complained of, and the excerpt as a whole is not subject to the criticism made, the assignment of error is too vague, indefinite, and uncertain to be considered. Roberts v. State, 92 Ga. 451 (3) (17 S. E. 262).

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

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    11295.
    Winokur v. The State.
    Decided April 13, 1920.
    Indictment for violation of prohibition law; from Bryan superior court — Judge Sheppard. January 3, 1920.

      J. Hartridge Smith, for plaintiff in error.

      J. Saxton Daniel, solicitor-general, contra.
   Broyles, C. J.

The only error assigned is the overruling of the motion for a new trial, which contained only the usual general grounds. The evidence amply authorized the verdict, and the court did not err in refusing a new trial. '

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11318.
    Walker v. The State.
    Decided April 13, 1920.
    Indictment for larceny of hog; from Tift superior court — Judge Eve. January 10, 1920.

      R. D. Smith, for plaintiff in error.

      R. S. Foy, solicitor-general, contra.
   Broyles, C. J.

The special grounds of the motion for a new trial are merely elaborations of the usual general grounds. There was some evidence which authorized the verdict; and, the finding of the jury having been approved by the trial judge, this court is without authority to interfere.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Bloodworth, J.

text:
    10389.
    GOLDBERG v. THE STATE.
    A sheriff has such special property in a thing stolen when lawfully in his possession as sheriff as will authorize a prosecution for larceny under an indictment in which ownership of the stolen article is laid in him.
    Under the facts in the record it must be assumed that the sheriff of Chatham county was lawfully in possession of the boat alleged to have been stolen, which had been turned over to him by officials of the United States government who had seized it in the waters of Bryan county while it was conveying liquors in violation of the prohibition law of this State. The question as to the legality of the seizure was not presented in such manner as would authorize this court to pass upon it.

      Refusal to direct a verdict is never reversible error; and questions raised in the grounds of an assignment of error on such a refusal will not be considered.
    Failure to charge the jury on a certain question as the trial judge announced he would do in the event that the question should be raised by the defendant’s statement at the trial was not cause for a new trial, where the attention of the judge was not called to the matter after the defendant had made his statement. A written request is necessary to require a charge on a theory of defense raised only by such a statement.
    Although not relevant as evidence against the accused, it does not appear that the proceedings for condemnation of the boat, and the judgment of condemnation because of its use in the transportation of prohibited liquors, were prejudicial to him on his trial for larceny of the boat. “ Objection that a sentence imposed in a criminal case is excessive, or for any reason illegal or irregular, can not properly be made the ground of a motion for a new trial.”
    There was evidence to support the verdict.
    Decided April 14, 1920.
    Rehearing Denied May 12, 1920.
    Certiorari; from Chatham superior court — Judge Meldrim. January 13, 1919.
    Application for certiorari was denied by the Supreme Court.

      Shelby Myrick, for plaintiff in error.

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

The plaintiff in error was convicted of the larceny of a boat. This court certified to the Supreme Court certain questions, which that court answered as follows:

“ 1. Where a boat conveying liquors in violation of the prohibition laws of this State was seized by officials of the United States government in the waters of Bryan county, and after the removal of the liquors from the boat it was turned over by the officials to the sheriff of Chatham county, his possession of the boat was not illegal, and related back to the seizure, which we assume to have been lawful.

“ 2. Under the circumstances supposed, the possession by the sheriff would give him such special property in the boat as would ‘ authorize a prosecution for larceny, in which the ownership of the boat was laid in M. W. Dixon, sheriff of Chatham county;’ and this is true whether under the facts it was the duty of the sheriff to report the seizure to the solicitor of the proper court of Chatham or of Bryan county.

“3. If, after the sheriff took possession of the boat, he put his agent in charge of the boat as a watchman, and the agent temporarily left the boat, not with the intention of abandoning the custody of the property, but for' the purpose of procuring food for himself, requesting one who was present on the dock as a guard to ‘look out/ to which request the guard assented, the fact that the property was taken away while in charge of the latter guard does not ‘show that the property was not in the possession, custody/ etc., of the alleged owner, the sheriff.

“4. Whether the failure to give stated instructions in charge to the jury was erroneous depends upon whether, under the entire evidence, such a charge was demanded; and this court will not undertake to review the evidence.

“ 5. On the trial of one charged with larceny of a boat which had been seized by officers of the law while being used in the transportation of prohibited liquors, the petition of the solicitor-general, filed in the proceedings to condemn the boat under section 20 of the act of 1917 (Acts Ex. Sess. 1917, p. 7) would not be relevant as evidence against the accused, nor would the judgment of the court in such proceedings be relevant 'and competent. But whether the admission of this evidence was harmful depends upon a review of the entire evidence, which this court will not undertake, but which will be made in the Court of Appeals.” Goldberg v. State, 150 Ga. 59 (103 S. E. 90).

6. It must be kept in mind that the only thing to be determined by this court is whether or not the accused is guilty of larceny. The question of the legality of the seizure of the boat by the officials of the United States government is not raised anywhere in the certiorari in such manner that this court can pass upon it. It is true that in the assignment of error on the refusal of the court to direct the verdict one of the reasons given why the court should direct a verdict was the following: “ The sheriff, Merritt W. Dixon, had no special property in the boat; and the said boat could not be the subject of larceny, because there had been no valid seizure of the boat, in that the uncontradieted evidence showed that the sheriff had not been the arresting officer of the boat or of the defendant, and had not taken the boat or the defendant on the boat with any contraband liquor aboard in the jurisdiction of Chatham county, Georgia.” The seizure referred to above was the seizure by the sheriff, and was so treated in the brief. “It is never reversible error to refuse to direct a verdict.” Bennett v. Patten, 148 Ga. 66 (3 b) (95 S. E. 690), and cit.; Dudley v. Isler, 21 Ga. App. 615 (2) (94 S. E. 827), and cit. If it is never error to refuse to direct a verdict, it is not error in this ease to refuse to consider the reason given by counsel why a verdict should be directed. When stolen the boat was in' possession of the sheriff, and as was said by the Supreme Court in paragraph 1 above, “his [the sheriff’s] possession of the boat was not illegal, and related back to the seizure, which we assume to have been lawful.” The original seizure is assumed to be lawful because done by government officials, 'and “there is a presumption of law that all officials do their duty, and unless in a given instance this presumption be in some way rebutted, it will prevail.” Carter v. Griffin, 113 Ga. 634 (38 S. E. 946). Even should we concede that the plaintiff in error was not guilty of transporting liquor in violation of law, and that no “ contraband liquor had been found aboard the boat,” under the facts of this case the sheriff was in lawful possession of and had such a special property in the boat as to make it the subject of larceny, and the plaintiff in error had no right, when the sheriff was lawfully in possession, to deprive him of such possession by a larcenous taking.

7. Complaint is made that “the said judge of the city court of Savannah erred in failing to submit to the jury, under appropriate instructions, the question of the legality of the seizure and levy of the said M. W. Dixon, sheriff, on said boat, when the court announced, on overruling the motion of the defendant to direct a verdict, that in the event the defendant by his statement raised the question of liquor being found on the boat, the court would submit the same to the jury as a question of fact for them to decide; and on the faith of such announcement defendant did not submit any requests to charge on such subject, the defendant having in his statement alleged that the boat was never in the waters of Chatham county, which was uncontradicted. And the court erred because it failed to instruct the jury that unless they should find from the evidence that the boat had been operated on the waters in Chatham county with forbidden intoxicating liquors aboard, they could not find the alleged levy or seizure of M. W. Dixon, sheriff, was legal, and they would have to acquit the defendant.” Under the foregoing rulings and the facts of this ease, this ground of the motion points out no error that would require the grant of a new trial. • Apart from the foregoing rulings, and even if it is conceded that the statement of the defendant raised the' question of the legality of the levy by the sheriff, after the defendant had made his statement the attention of the court was not called to his previous promise. See, in this connection, Cawthon v. State, 119 Ga. 396 (7) (46 S. E. 897); Sasser v. State, 129 Ga. 541 (3) (59 S. E. 255), 545 (3), and cit.; Thurman v. State, 14 Ga. App. 543 (2) (81 S. E. 796). Besides, in the absence of a legal and timely written request, the court is not required to charge on a theory of the defense raised only by the statement of the defendant. Tison v. State, 23 Ga. App. 20 (1); Green v. State, 22 Ga. App. 793 (2).

8. The evidence referred to in paragraph 5 above is admittedly “'irrelevant and immaterial,” and is so referred to in the motion for a new trial. We can not say thát it is “manifestly prejudicial,” and the assignment of error does not show “wherein it is harmful.” Brown v. State, 119 Ga. 572 (2) (46 S. E. 833); Johnson v. State, 128 Ga. 71 (2) (57 S. E. 84); Shealy v. State, 138 Ga. 23 (1) (74 S. E. 689); Thompson v. Thompson, 77 Ga. 693 (7) (3 S. E. 261). While it is true that the petition of the solicitor-general to condemn the boat and the judgment of condemnation were improperly admitted in evidence, the objection to their introduction, in addition to the objection that they were “irrelevant and immaterial,” was that they “could not be admitted in evidence to prove the place where the boat was being operated, and as to what it contained, and there had been no proof of such statements by any evidence in the trial of the case; ” it is also true that the notice given the sheriff in compliance with section 20 of the act of the General Assembly passed at the extraordinary session held' in March, 1917, which notice was admitted in evidence without objection, contained many of the same facts as does the petition. Under all the facts of the ease the erroneous admission of the petition and judgment is not sufficient cause for the grant of a new trial.

9. “ Objection that a sentence imposed in a criminal case is excessive, or for any reason illegal or irregular, can not be properly made the ground of a motion for a new trial.” Sable v. State, 22 Ga. App. 768 (97 S. E. 271), and cit.

10. There is some evidence to support the verdict, which was approved by the presiding judge, and the judgment overruling the certiorari is

Affirmed.

Broyles, C. J., and Luke, J., concur.