text:
    11472.
    Parks v. State of Georgia.
   Smith, J.

1. “ In a proceeding under section 20 of the prohibition act approved March 28, 1917 (Ga. L. Ex. Sess. 1917, pp. 7, 10), to condemn a vehicle or conveyance used in transporting any liquors or beverages the sale or possession of which is prohibited by-law, the burden is upon the State, the condemnor, to show that such vehicle or conveyance was used in conveying the prohibited liquors or beverages with the knowledge of the owner or lessee.’ ” Lang v. Hilt, 149 Ga. 667 (1) (101 S. E. 795).

Decided November 2, 1920.

Condemnation; from Barrow superior court—Judge Cobb. February 25, 1920.

Parks interposed a claim to a certain automobile, seized because of alleged use in conveying liquors while in the custody and control of Cal Doster. On the trial of the case the jury rendered a verdict finding that the car was subject to condemnation as the property of Doster. The case came to the Court of Appeals on exceptions to the overruling of the claimant’s motion for a new trial.

1, 2. In the motion for a new trial it is contended that the trial judge erred in giving the State the opening and conclusion of the argument, although the defendant, Cal Doster, introduced no evi- - deuce, and although the burden of proof was upon the claimant.”

3. From the evidence it appears that the car in question was seized just after a collision with another car, and that-no liquor was found in it, but it smelt strongly of corn whisky, and kegs and a jug which had contained whisky were found in woods near where this car was discovered. Grounds 4 and 5 of the motion for a new trial relate to testimony of T. S. Banks to the effect that about 20 minutes after the collision he saw a third car come up with men who carried off some kegs in the car in which they came. This testimony was admitted over the objection that it was irrelevant and immaterial. Ground 6 relates to testimony of H.H.Dalton “to the effect that he found, an hour and a half after the alleged wreck of the car seized to be condemned, in a brush pile of pine brush, a 10-gallon keg and a 20-gallon keg and a jug, some of which was totally covered and the other just partly covered up, and that one of the kegs smelled strongly of whisky.” This testimony was objected to on the ground that it related to a transaction occurring an hour and a half after the alleged wreck.

2. Under the above ruling it was not error in the court beloiv to deny to the claimant or intervenor the right to open and conclude, upon the mere admission by his counsel that the defendant in the proceeding was in possession of the car, the claimant or intervenor at the same time denying any knowledge of its illegal use.

3. The admission of the evidence complained of in the 4th, 5th, and 6th grounds of the motion for a new trial was not error, as all of this evidence, though circumstantial, was connected up with the other evidence in the case, tending to show that liquor was being transported in the car sought to bo condemned, and that all or part of this liquor had been taken out of the car, carried some distance away from it, and concealed.

4. There was evidence to support the verdict, and, it having the approval of the court below, this court will not reverse the judgment overruling the motion for a new trial.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.

Richard B. Russell, Richard B. Russell Jr., for plaintiff in error.

W. O. Dean, solicitor-general, contra.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    11538.
    Sisson v. Roberts.
   Smith, J.

1. Where the owner of an automobile delivers it to the proprietor of a garage, for the purpose of having repairs made upon it, and no agreement is made as to the time in which the repairs are to be completed, the question as to what is a reasonable time is one for determination by a jury.

2. Where, after the delivery of the automobile for repairs, it is taken down and dismantled, and the parts are distributed around the shop among other like parts of machines and machinery, so as to make it impracticable, without putting the parts together again, to give an opinion as to the value of the machine, and the owner brings trover, after demand for the return of the property, claiming that it was kept for an unreasonable time, and claiming also that he, at the time of the demand, offered to pay whatever charges for repairs had accrued up to that time, evidence as to the value of the property at the time it was placed in the hands of the defendant, and evidence as to its value a week, or as much as a month, prior to that time, was admissible, and was such evidence as could be considered by the jury in determining the highest market value of the property between the time of conversion and the date of the trial of the case, the defendant not pleading or attempting to show by evidence that there had been any change in the condition of the property after delivery to him. See, in this connection, Gordon v. Atlantic Coast Line R. Co., 7 Ga. App. 355, 350 (66 S. E. 988).

3. The court did not err in rejecting the amendment to the defendant’s answer, which amendment sought to recoup an amount claimed to be due the defendant for work and repairs made on the automobile in question. See Youngblood v. Armour Fertilizer Works, 23 Ga. App. 731 (1, 2) (99 S. E. 314), and cit.

4. The charge of the court fully and fairly submitted to the jury the substantial issues in the case and the law applicable thereto, and the excerpts from the charge complained of, when taken in connection with the entire charge, do not contain reversible error.

Decided November 2, 1920.

Trover; from city court of Hall county — Judge Wlieeler. March 23, 1920.

E. D. Kenyon, for plaintiff in error.

J. M. Merritt, Sloan & Sloan, contra.

5. There was evidence to support the verdict, and, it having the approval of the trial judge, this court will not interfere with his judgment refusing a new trial. ■

Judgment affirmed.

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


text:
    11543.
    Roberson v. Weaver.
   Smith, J.

1. When this case was before the Supreme Court (Roberson v. Weaver, 145 Ga. 626, 92 S. E. 49), all the questions of law involved were fully discussed and determined, and upon a further trial of the case nothing was left except two questions of fact: (1) Was there a breach of the lease contract in its entirety by the plaintiff? (2) If there was such a breach, what damage, if any, was suffered by the defendant by reason of .the breach?

2. It was error for the court to charge as follows: “ If you find that the landlord breached his covenants by failure to make the additions and improvements by January 1, 1908, and such failure affected the value of the lease as an entirety, the damages would be measured by the difference between the value of the lease, considered as an entirety, had the landlord complied with his contract, and the amount which the defendant contracted to pay.” It was a question of fact for the jury to determine whether the failure on the part of the landlord to make the additions and improvements by January 1, 1908, was a breach of the contract in its entirety, and the excerpt from the charge, quoted above, took the decision, of this question away from the jury; it also contains an expression of opinion that the landlord’s failure to make such additions and improvements by January 1, 1908, constituted a breach of the contract.

3. The following excerpt from the charge of the court was error: “ [If,J after considering this case, you believe there was a breach on the part of the plaintiff of his contract, the form of your verdict would be, ‘ We, the jury, find for the defendant.’ ” This was error for the following reasons: If under the evidence the jury believed that the landlord (the plaintiff) had breached his contract in its entirety, it would be a question of fact for the jury to determine as to what damages, if any, were suffered by the defendant. If the jury believed that there was no breach of the contract, the plaintiff would be entitled to a verdiet for tlie premises and double rent from tlie date of the demand up to the time of the- trial, provided that the defendant was still in possession of the premises. If, on the other hand, the jury believed that the landlord had breached his contract in its entirety and the defendant had been damaged by such breach, but the damages suffered were not as much as the rent claimed, tlie jury would be authorized still to find the difference in favor of the plaintiff. If, however, the jury believed that the landlord breached his contract in its entirety and the damages suffered by the tenant were equal to the claim for rental by the landlord, then the verdict would bo for the defendant; but if the jury believed that the landlord had breached his contract in its entirety and that by reason of such breach the defendant had suffered damage in a larger amount than the rental claimed by the landlord, tlie jury would be authorized to find in favor of the plaintiff the excess of such demand for damages and the amount of rental due the landlord.

Decided November 2, 1920.

Eviction; from Laurens superior court-—Judge Kent. March 27, 1920.

John S. Adams, Jones, Park & Johnston, for plaintiff.

G. H. Williams, Hines, Hardwick & Jordan, for defendant.

3. The above rulings are controlling, and the other assignments of error are either without substantial merit in view of the rulings made by the Supreme Court when this case was before it, or are such as are not likely to recur on another trial.

Judgment reversed.

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


text:
    11549.
    O’QUINN v. ROSS & BRINSON.
    Decided November 2, 1920.
    There was evidence tending to show that the defendants were indebted to the plaintiff for timber cut, in an amount more than the sum admitted in the answer of the defendants. This made a question of fact to be determined by the jury, and it was error in the court to direct a verdict for the amount admitted to be due by the defendants in their answer.
    Complaint; from city court of Baxley-—Judge Lawrence. February 13, 1920.

      Padgett & Watson, for plaintiff.

      C. H. Parker, for defendant.
   Smith, J.

S. P. O’Quinn sited J. A. Ross and M. D. Brinson, seeking to recover upon a written contract between the parties in which the defendants agreed to cut not less than 500,000 feet of timber off certain lots of land owned by the plaintiff. The petition alleged that the full amount of 500,000 feet had been cut, and that the defendants were indebted to the plaintiff $ 3 per thousand feet stumpage, and $3 per thousand feet for all the timber hauled by the plaintiff. A demurrer was filed to the petition, on the ground that it was uncertain whether the plaintiff was claiming damages for a breach of the written contract, or claiming $ 3 per thousand feet for the timber actually cut. The plaintiff amended his petition, abandoning the claim for damages growing out of a breach of the contract, but alleging that the defendants did cut 350,000 feet of timber, more or less, and that the defendants were indebted to him in the sum of $ 1,500 for the said timber, less $ 228.49 paid by the defendants. Thereupon the demurrer was overruled. The defendants then answered, admitting the contract, a copy of which was attached to the petition, but denying that they had violated the contract or that they had failed to account to and pay the plaintiff for all the timber actually cut by them as well as the bill for hauling, except the sum of $45.29, admitted to be due the plaintiff as a balance.

The evidence for the plaintiff tended to show that the defendants had cut more timber than admitted in their answer, and that the defendants were indebted to the plaintiff in a larger amount than the amount admitted in the answer. The defendants introduced no evidence, and the court directed a verdict for the amount admitted to be due by the defendants in their answer. This was error.

Judgment reversed.

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


text:
    11592.
    AMERICAN RAILWAY EXPRESS CO. v. BOTHWELL GROCERY CO.
    What was a reasonable time for delivery by the carrier, and whether the facts alleged in the petition constituted a waiver of a condition of the carrier’s receipt that, in case of failure to deliver, claims against the carrier must be made “within four months after a reasonable time for delivery has elapsed,” were questions of fact, for determination by a jury.

      Decided November 2, 1920.
    The petition was not demurrable on the ground that the condition in the receipt, limiting the time for making claims against the carrier, was not waivable as to an interstate shipment.
    Action for damages; from city court of Bichmond county'— Judge Black. May 11, 1920.
    W. K. Miller, for plaintiff in error.

      William H. Fleming, contra.
   Smith, J.

J. T. Bothwell Grocery Company brought suit against the American Railway Express Company, alleging substantially the following: On September 30, 1918, the Linen Hosiery Company, of Clifton Heights, Pa., delivered to the defendant express company a package of 60 dozen hose, consigned to the plaintiff at Augusta, Georgia, taking from the express company the uniform receipt then in use. About 90 days after the shipment the consignee received from the hosiery company the first notice of the delivery of the goods to the express company. In December, 1918, a representative of the plaintiff went to the express office at Augusta, Georgia, and inquired of the agent in charge about the shipment. The agent told him he would look up the records and let him hear further from the company. About January 1, 1919, another representative of the plaintiff called on the express company and had a conference with the man or agent in charge, and was referred to a lady clerk, who said she could not find a record of the shipment, but would investigate further and let him hear from the company. No further information was given by the express company to the plaintiff until some time in May, 1919. The goods were not delivered to the consignee or found, and on June 10, the plaintiff filed his claim in writing for the goods. The express company’s receipt contained the following condition: “Except where the loss, damage, or injury complained of is due to delay or damage while being loaded or unloaded, or damage in transit by carelessness or negligence, as conditions precedent to recovery, claims must be made in writing to the originating or delivering carrier within four months after delivery of the property, or, in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed.” The plaintiff alleged that the requirements of the contract as to the filing of the claim for the loss of the goods had been waived by the conduct of the defendant. The plaintiff prayed for judgment for $720, the alleged value of thi goods. The defendant filed a demurrer to the petition, contending, (1) that no cause of action was set out; (2) that it appears that the notice of claim for non-delivery was not made within four months after the receipt of the property by the express company, or within four months after reasonable time for delivery had elapsed, it appearing that the goods were received on September 30, 1918,.and no written claim was filed until June 10, 1919; and (3) that the allegations of the petition that the requirements of the contract as to the filing of the claim for loss of goods had been waived are not good in law, for such requirements are non-waivable in cases of interstate transportation.

The question as to whether the defendant express company had by its conduct waived the condition in the receipt, requiring the filing of the claim for loss of goods within four months after reasonable time for delivery had elapsed, was a question for determination by the jury; and it was also a question of fact, for determination by the jury, as to what was a reasonable time in which to file this claim. The court below did not err in overruling the demurrer.

Judgment affirmed.

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


text:
    11625.
    Payne, director-general, v. Hayes.
   Smith, J.

1. Whether the frequent and continued use of the right of way of the railroad at the point where the deceased met his death was such as to require the railroad company to anticipate the presence of pedestrians on or near the track, and whether, with such- notice and resulting duty, ordinary care was exercised on the part of the railroad company, are questions of fact for determination by a jury. Central of Georgia Ry. Co. v. Thompson, ante, 715 (104 S. E. 515), and cit.

2. While it is true that a railroad-track is a place of danger, and one who trespasses thereon is guilty of negligence, yet when the railroad company discovers this negligence, or has reason to anticipate it, and such a trespasser is on the track in an apparently helpless condition, ordinary diligence requires the use of every means then available to avoid running down and killing him; and if, under such circumstances, this degree of care is not exercised, and death results, the killing will be deemed in law to have been wilful and wanton. Contributory negligence on the part of even a trespasser will not defeat a recovery for a wanton homicide. Central of Georgia Ry. Co. v. Thompson, supra.

Decided November 2, 1920.

Action for damages; from city court of Atlanta — Judge Reid. May 24, 1920.

The action was for the killing of a 15-year-old son of the plaintiff by a train of the Atlanta and West Point Railroad Company when he was sitting on its track in a street of the city of Atlanta. The action was originally against the railroad company, but by amendment “the Director General of Railroads, operating” the railroad was substituted as defendant. The petition as amended alleges, in substance, that on July 25, 1918, the plaintiff’s son was walking along the defendant’s tracks near the intersection of the railroad with Fair street, and approximately 300 feet south of the Fair street crossing, when he was taken seriously ill and became unconscious. He became so ill and confused, unconscious, and helpless that he sat down upon the track of the defendant at that point, when a train of the defendant approached him from the north, running in a southerly direction, at a great rate of speed, to wit, 35 miles per hour, and the train continued at that speed until it ran across Fair street and struck .him, causing injuries from which he died. The locality at that point and for a clistance of at least a mile in each direction from it is thickly .populated, and the railroad tracks in each direction are constantly used by the public as a thoroughfare, and especially about 7 o’clock in the morning, the hour at which the train struck the plaintiff’s son. The defendant’s tracks at that point are almost straight, and the defendant’s engineer, fireman, conductor, and a certain train-hand stationed upon the cow-catcher of the train saw or in the exercise of ordinary care should have seen the plaintiff’s son sitting upon the track, for a distance of at least 300 yards before reaching him. The defendant crossed the public crossing at Fair street without tolling the bell of the engine and without simultaneously checking the speed and continuing to check the speed of the engine so as to stop in time should any person or thing be crossing the track, and the train was being run in violation of a valid- ordinance of the city of Atlanta which prohibits the running of engines and cars “through any part of the city at a greater rate of speed than 6 miles an hour.” If the employees operating the train had not been violating this ordinance they could have stopped the train in a distance of 20 feet and not have injured the plaintiff’s son. He was in the exercise of ordinary care; that is to say, he had his head in his hands, was unconscious and oblivious to the approaching train, and did not see it as it approached; and he was not warned of its approach. It is alleged that the defendant was negligent, (a) in operating the train across Fair street at the said intersection at that time; (&) in operating the train in that locality at such a rate of speed, where persons frequented the tracks and constantly used them; (c) in operating the train at a rate of speed in violation of the said ordinance; (d) in operating the train when the said employees of the defendant saw, or in the exercise of the ordinary care with which they were charged should have seen, the deceased upon the track; and (e) in operating the train without sounding a bell or giving some other notice of its approach to persons upon the track, and especially to the deceased. The defendant demurred to the petition generally and specially, and contended that the deceased was a trespasser and was guilty of negligence, and that the employees operating the train owed him no duty to observe regulations as to speed or warning, and were under no duty to exercise care for his safety before notice of his perilous situation. The demurrer was overruled, and .the defendant excepted.

3. While it may be assumed that an adult walking on a railroad-track will get off in time to avoid injury to himself, the rule is otherwise as to children of tender years, or persons who appear to be disabled by deafness, intoxication, sleep, or other cause, from taking care of • themselves. Central of Georgia Ry. Co. v. Thompson, supra.

4. The allegations of the petition as amended bring this case within the principles announced above, sufficiently to withstand the demurrers interposed.

5. However, where a suit for damages was brought against a railroad company for an injury occurring while the railroad was under government control, the director-general of railroads was a proper party defendant to the suit, and he coulcLbe made such by amendment; and when, at the time the case came on to be heard on demurrer, the control of the railroad had been turned back to the owners and an agent had been appointed by the President of the United States to represent the government in all cases arising while the railroad was under government control, it was proper that the agent so appointed should be a party defendant to the suit, and he could be made such by amendment. The judgment of the court below is therefore affirmed, with direction that the plaintiff be allowed to make thei agent a party defendant, by amending her petition.

Judgment affirmed, with direction.

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

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

Hewlett & Dennis, C. P. Bentley, contra.


text:
    11635.
    WIDINCAMP et al. v. McCALL.
    Decided November 2, 1920.
    1. Testimony as to what the witness “ found out that cotton was worth ” in a named place on a certain day was admissible over the objection that it was hearsay.
    2. Exceptions to the refusal of the trial judge to give certain requested instructions to the jury will not be considered where the whole charge given to the jury is not sent up to this court and it does -not appear that the charge failed to cover substantially the requested instructions. And this court will not order that the charge given be sent up under section 6149 (4) of the Civil Code where it does not appear that the charge was in writing or on file in the office of the clerk of the trial court.
    Trover from Tattnall superior court — Judge Sheppard. May 1, 1920.

      Elders & DeLoach, for plaintiffs in error.
    W. T. Burkhalter, contra.
   Smith, J.

1. The court did not err in admitting, over the objection that it was hearsay, the testimony of a witness as follows: “I went to the Bluff to carry one load of cotton and I found out that cotton was worth more in Eeidsville that same day, and I went back that evening and I told Mr. Bdd that night.” The real purport of the testimony of the witness was that he went to Eeidsville and, after an investigation, found out that the market price of cotton on that date, the date of the alleged sale from the plaintiff to the defendant, was higher than the defendant had represented to the plaintiff. “Direct testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer in the article, but may testify as to value, if he has had an opportunity for forming a correct opinion.” Civil Code (1910), § 5875. “The question of the value of an article is peculiarly for the jury, and that body is not absolutely bound by the opinions or estimates of the witness on that subject.” Minchew v. Nahunta Lumber Co., 5 Ga. App. 154 (3) (62 S. E. 716).

2. The remaining ground of the amendment to the motion for a now trial contains a copy of a request to charge, the refusal of which is alleged to have been error. Under the following ruling of this court this ground of the motion will not be considered: “Where error is assigned upon a refusal of the trial judge to give certain requested instructions to the jury, and it is not shown that the request was not substantially covered by the charge given by the court, and the entire charge was not brought up, this court is unable to determine whether such refusal was erroneous or not; and where it does not appear, from the bill of exceptions or from the record brought up, that the charge of the court was reduced to writing or was on file in the office of the clerk of the court below (Penal Code, §§ 1056, 1057), this court will not order it sent up under section 6149 (4) of the Civil Code.” Sovereign Camp v. McDaniel, 20 Ga. App. 430 (4) (93 S. E. 105).

3. There was evidence to sustain the verdict, and, it having the approval of the trial judge, this court will not reverse his judgment overruling the motion for a new trial.

Judgment affirmed.

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


text:
    11665.
    Dobbs, for use, etc., v. Bell Laundry et al.

   Smith, J.

1. There is no merit in either of the grounds to dismiss the bill of exceptions, and the motion is denied.

2. “ When the plaintiff relies on title to recover possession of personal property wrongfully withheld from him, he must show a legal title; a mere equitable title will not suffice. When, therefore, it appears that the legal right of action is not in the plaintiff, he has no right of action at all, either in his own name or in that of another. I-Ie cannot sue for the use of the person who has the legal right of action, but the action should be brought in the name of the real plaintiff. See Richmond & D. R. Co. v. Bedell, 88 Ga. 591 (3) ; Cunningham v. Elliott, 92 Ga. 159.” Mitchell v. Georgia & Ala. Ry., 111 Ga. 760, 771 (2) (36 S. E. 971, 51 L. R. A. 622).

3. The evidence in the instant case showing that the plaintiff bringing the suit was the agent for the defendant, and that he had no general or special property in the goods sued for, the court did not err in granting a nonsuit.

Decided November 2, 1920.

Trover; from Cobb superior court — Judge Blair. March 9, 1920. By bail-trover against the Atlanta Northern Bailway Company and the Bell Laundry, a corporation doing business in Atlanta, G-a., C. H. Dobbs, suing for the use of many persons named, sought to recover articles of wearing apparel, table and bed linen, towels, etc. In the petition it is alleged that the railway company, “by instructions of the said Bell Laundry, is in possession of four baskets of ” such articles, “ to which plaintiff claims the right of possession for the use of the usees named hereinbefore; said defendants are illegally withholding said possession against the will and permission of plaintiff without cause or right; he has demanded said baskets of clothing, which demand has been refused and the said clothing retained illegally. The value of said clothing is $150, and its monthly rental $25.” In the plaintiff’s affidavit to obtain bail it is stated that “said personal property is reasonably worth the sum of $150.” The answer of the Bell Laundry contained averments as follows: “The Atlanta Northern Bailway Company, a common carrier, was in possession of four baskets of clothing, bed linen, and table linen, which had been sent to this defendant by C. H. Dobbs, for the purpose of having the same laundered, and defendant had laundered same and had a lien on same for charges, which amounted to the sum of $100,- and . . there was due to this defendant by said C. H. Dobbs the further sum of $116 by reason of laundry done prior to this shipment of clothing shipped by said C. II. Dobbs to defendant for this purpose. . , Said Dobbs was unwilling to pay charges lawfully due this defendant on said shipment of laundry and had used this means of taking-possession of said goods without paying defendant’s charges, and on charges due Atlanta Northern Eailway Company. . . Defendant has never held such clothing, etc., nor was he in possession of same at said time, and same was in possession of Atlanta Northern Eailway Company, a common carrier, as agent of this defendant. . . The value of said clothing was some $400 and not $150. . . Wherefore defendant prays that-it will have, and recover of said C. Ii. Dobbs the sum of $216 and costs of this suit.”

4. Where a plaintiff in bail-trover replevies the property in controversy, on the defendant’s failure to do so, and suffers nonsuit on the trial of the case, the defendant may enter up judgment against the plaintiff and the sureties on his bond for the value of the property; and if the defendant is content with the value stated in the plaintiff’s affidavit to obtain bail, no further proof or assessment of value is necessary.

(a) Where, however, as in the instant case, the amount stipulated in the plaintiff’s affidavit to obtain bail is $150, and the defendant is content to take a judgment for this amount, the defendant is not entitled to a judgment for a larger amount; and therefore the judgment of the lower court is affirmed with direction that the defendant write off the sum of $50 from the amount of the judgment ($200); otherwise the judgment is reversed.

Judgment affirmed, with direction.

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

On the trial C. ii. Dobbs testified: “ I filed this suit for the use of the parties whose names appear here as usees. I am agent for the Bell Laundry Company. I get up- clothing for them to clean and press, send them down from here to Atlanta to the Bell Laundry, and, after they are cleaned and pressed and laundered, they are returned to me and are distributed by me to the owners. The owners pay me for their laundry whenever I deliver it to them. During last year I was agent for the Bell Laundry Company of Atlanta. I took up laundry and sent it to them for other people. They - were to do up the laundry and return it through me to the customers. At the time of sending the laundry I knew what the charge would be, and would also know when they would send a bill for the laundry work. When it was time for me to get this lot of laundry back to deliver I went to the freight office and undertook to get the laundry back to deliver; I offered to pay the laundry prices and they refused to take it. I called the Bell Laundry Company up. .' . I told them I wanted to pay the expense on this particular bill. . . They said théy couldn’t let me have the laundry. . . This la-undry belonged to people whose names . are joined in this suit here; none of the clothing was my individual stuff. These people did not owe the laundry anything ex-. cept on their particular wash that had been done this week. . . The people that had given me laundry had turned the money for their laundry over to me as a representative of the Bell Laundry Company for the laundry they had done; these people did not owe anything else except for the laundry they had done that week. . . The owners of the clothing don’t owe the Bell Laundry Company anything for laundry work; they have paid. . . It would be mighty hard to tell what the four baskets of clothing were worth. . . I have no idea what the goods . . were worth, but it was some several hundred dollars. I suppose I know they were worth more than $150. . . I did not own anything in these baskets.” There was testimony as to indebtedness of Dobbs to the Bell Laundry and as to claims made by him for shortages, which were unsettled, and offers by him to pay certain sums to get the articles in question. He testified that he had collected $200 from people whose laundry he had delivered, and had not delivered the money to the Bell Laundry.

At the conclusion of the testimony the court, on motion of counsel for the Bell Laundry, granted a nonsuit, and then “ordered, on motiqn of defendant, that defendant have a judgment of restitution of plaintiff, and have and recover of C. H. Dobbs, principal, and J. F. Hicks, security, on the within bond, the sum of $200.” The plaintiff excepted to the judgments stated.

The motion to dismiss the writ of error was on the grounds, that the plaintiff in error failed to name in the bill of exceptions the Atlanta Northern Bailway Company as a party defendant, although service was duly acknowledged by both defendants; that the bill of exceptions was not presented to and certified by the judge of the trial court in the time required by law; and that it was filed more than 15 days after the date of the certificate of the judge. The judgments complained of were rendered on March 9, the judge’s certificate was dated May 31, and the bill of exceptions was filed with the clerk of the superior court on June 14, 1920. In the bill of exceptions and in the judge’s certificate it is stated that the bill of exceptions was presented to him within sixty days from the date of the trial and. of the judgments complained ,of. The clerk’s certificate, dated June 21, 1920, states that the term of the court at which the case was tried “is still open.”

Mozley & Gann, H. B. Moss, for plaintiff.

W. F. Buchanan, Clay & Blair, for Bell Laundry.


author: Bloodworth, J. Broyles, C. J.

text:
    1144, 11445.
    ROBINSON v. O’BANNON COMPANY; and vice versa.

    Decided November 9, 1920.
    1. The verdict not being demanded by the law and the evidence, the trial' judge did not abuse his discretion in granting a first new trial.
    2. As to the items of freight, demurrage, storage, and commission on the sale of the oats after the defendant’s refusal to accept and pay for them, the court did not err in sustaining the demurrer to the petition.
    Complaint; from city court of Cairo — Judge Rigsby. March 11, 1920.
    The O’Bannon Company, of Claremore, Oklahoma, sued Robinson, alleging, that he contracted to buy from it 1500 bushels of oats to be shipped to Cairo, Georgia; that the oats were shipped to him in pursuance of the contract, and that when they reached their destination he failed and refused to accept them and pay for them, thus breaching the contract; that upon this breach of the contract the plaintiff had the oats sold for the account of the defendant, through Ira Higdon, a wholesale grocer of Cairo, Georgia, for the highest and best price obtainable for them, and that he sold them for the gross amount of $1585.66, “from which amount he deducted the following charges: freight, $149.60; demurrage, $15.00; commission and storage, $181.01, making total charges of $345.61,” leaving abalance of $1240.05, which was remitted by Higdon to the plaintiff and credited on the defendant’s account. The plaintiff sued for the difference between this balance and $2,000, the purchase-price of the oats, besides interest. The defendant demurred to the petition generally and on various special grounds, two of which were that “the items of freight and demurrage should be stricken,” and that “the items of storage and commission should be' stricken.” The court sustained these two grounds of the demurrer and overruled the other grounds. The trial of the case resulted in a verdict for the defendant, and the plaintiff made a motion for a new trial, which was granted. The defendant excepted to the grant of a new trial, and in a cross-bill of exceptions the plaintiff excepted to the sustaining of the demurrer as to the items of freight; demurrage, storage, and commission. As to these items counsel for the plaintiff cited: Civil Code (1910), §§ 4131, 4402; 135 Ga. 539 (3).

      S. P. Cain, for Robinson.

      R. A. Bell, Bell & Weathers, contra.
   Bloodworth, J.

The first grant of a new trial is complained, of in the main bill of exceptions. The evidence was conflicting. “ It may now be considered as settled that this court will not, under any circumstances, reverse a judgment granting a first new trial, whether the grant be general upon all grounds of the motion or special upon one or more grounds only, or whether it be upon a ground which involves questions of evidence or upon a ground which involves purely questions of law; unless it is made to appear that no other verdict than the one rendered could possibly have been returned under the law and facts of the case. Unless the case can be brought within the exception just stated, it is useless for parties to bring before this court the judgment of a trial judge granting a first new trial.” Parks v. Stevens, 21 Ga. App. 180 (94 S. E. 60), and cit.

The court did not err in the ruling on the demurrer to the petition, of which the plaintiff complains in the cross-bill of exceptions.

Judgment affirmed on both bills of exceptions.

Luke, J., concurs.

Broyles, C. J.

I agree with my associates that the judgment excepted to in the main bill of exceptions should be affirmed, but I think that the judgment upon the demurrer to the petition (excepted to in the cross-bill of exceptions) was erroneous and should be reversed.


author: Bloodworth, J. Broyles, C. J.,

text:
    11487.
    BROOKS v. THE STATE.
    Decided November 9, 1920.
    1. “The failure of the court to charge the jury upon the second ‘branch’ of the rule as to alibi, as required by the rulings of the Supreme Court in Ledford v. State, 75 Ga. 856, and in Harrison v. State, 83 Ga. 129 (9 S. E. 542), was such error as requires the grant of a new trial. Callahan v. State, 14 Ga. App. 442 (81 S. E. 380); Raysor v. State, 132 Ga. 237 (63 S. E. 786).” Moody v. State, 17 Ga. App. 121 (86 S. E. 285).
    2. The charge of the court as to the effect of proof of recent possession of stolen goods was not error for the reason assigned in the 4th ground of the motion for a new trial.
    3. The court is not required to charge upon a theory of defense arising solely from the statement of the accused, in the absence of a timely written request so to charge. Lott v. State, 18 Ga. App. 747 (2) (90 S. E. 727), and cases cited: Allen V. State, 134 Ga. 380 (67 S. E. 1038).

      Indictment for larceny of automobile; from Putnam superior court—Judge Park. March 9, 1920.
    The 4th ground of the motion for a new trial is that the court erred in charging the jury as follows: “ If you are satisfied, to a reasonable 'and moral certainty and beyond a reasonable doubt, by the evidence in this case, that on the 7th day of September, 1919, in the county of Putnam, the automobile described in the bill of indictment was taken and carried away with intent to steal the same, and if you are further satisfied that the automobile belonged to Isaiah Johnson, and if you are further satisfied that the identical automobile, if any automobile was stolen as alleged in the bill of indictment, was found in the recent possession of the defendant, and if he fails to give a reasonable account of such possession, or if the evidence introduced in this case fails to give a reasonable account of such possession, the court charges you that upon proof of these facts you would be authorized to convict the defendant, if you are satisfied, to a reasonable and moral certainty and beyond a reasonable doubt, of the guilt of the defendant.” This extract from the charge is alleged to be error “ for the reason that no such presumption of law arises against the defendant when found in the possession of stolen property; in a word, the court charged that if the defendant was found- in the recent possession of the automobile, unaccounted for, the jury were authorized to convict. This was a question for the jury, and not for the trial judge. The true rule of criminal law in such cases is this: Eecent possession of stolen property, not' explained, is a circumstance going to show guilt, but is not sufficient, without more, to convict. So the court assumed the defendant was guilty and charged the jury to that effect, and expressed an opinion in regard to the facts proved in the case, contrary to the statute.”

      Roy D. Stubbs, for plaintiff in error.

      Doyle Campbell, solicitor-general, Richard B. Russell, contra.
   Bloodworth, J.

Only the first headnote needs elaboration. One of the grounds of the motion for a new trial alleges that the judge erred in charging the jury as follows: “The defendant sets up in this case what the law denominates as a plea of alibi. An alibi, under the laws of the State of Georgia, is the impossibility of the defendant’s presence at the time and place of the alleged offense; and if tbe range of tbe evidence upon tbe plea of alibi is sufficient to exclude the reasonable hypothesis that the defendant was present, under the law that plea of 'alibi would be good.” This portion of the charge is alleged to be error because “the court erred in failing to charge the jury that the testimony upon the defense of alibi might serve, when considered in the light of the entire evidence, -to raise a reasonable doubt which might suffice to acquit the defendant. . . Had the jury been told that the evidence offered in support of the alibi might of itself generate a reasonable doubt of the guilt of the accused, the jury might have been so impressed. . . The charge as given on the defense of alibi restricted the jury to consider it for one purpose only, and that was whether, or not the burden of establishing the plea to their satisfaction had been carried. Thus plaintiff in error was deprived of a substantial right.” This attack on the charge is based upon and supported by a number of decisions of this court and of the Supreme Court. In Raysor v. State, 132 Ga. 239 (63 S.E. 786), Evans, P. J., said: “In Harrison v. State, 83 Ga. 130 (9 S. E. 542), Bleckley, C. J., after examining the prior adjudications of this court, formulated the rule on the subject of alibi as a defense as follows: * Touching alibi, the rule in Georgia as established by authority consists of two branches. The first is, that, to overcome proof of guilt strong enough to exclude all reasonable doubt, the onus is on the accused to verify his alleged alibi, not beyond a reasonable doubt, but to the reasonable satisfaction of the jury. The second is, that, nevertheless, any evidence whatever of alibi is to be considered on the general case with the rest of the testimony, and if a reasonable doubt of guilt be raised by the evidence as a whole) the doubt must be given in favor of innocence.’ And this court has since then refused to grant new trials on charges modeled on this statement of the rule. Miles v. State, 93 Ga. 120 (19 S. E. 805, 44 Am. St. R. 140); Henderson v. State, 120 Ga. 506 (48 S.E. 167). The criticism of the charges sub judice goes to the point that the court failed to instruct the jury that evidence introduced to establish the defense of alibi should be considered on the general case with the rest of the evidence, and that if a reasonable doubt of guilt be raised by the evidence as a whole, the doubt must be given in favor of innocence. Every instruction in a criminal case should make clear' that the burden is on the prosecution to prove the defendant’s guilt of the crime charged beyond a reasonable doubt; and especially should there be no relaxation of the rule in cases where the defense of alibi is involved, and the jury are instructed that the onus is on the accused to prove his alleged alibi to their reasonable satisfaction. There should never be any confusion in the charge in presenting the distinction between the burden resting upon the State to prove the defendant’s guilt beyond a reasonable doubt, and the burden of the accused to verify his alleged alibi to the reasonable satisfaction of the jury. A charge which excludes the evidence concerning the alibi from being weighed by the jury on the subject of reasonable doubt as to the defendant’s guilt is erroneous. Ledford v. State, 75 Ga. 856.” ,

In Moody v. State, 17 Ga. App. 121 (1) (86 S.E. 285), this court held that “ the failure of the court to charge the jury upon the second ‘branch’ of the rule as to alibi, as required by the rulings of the Supreme Court in Ledford v. State, 75 Ga. 856, and in Harrison v. State, 83 Ga. 129 (9 S.E. 542), was such error a? requires the grant of a new trial. Callahan v. State, 14 Ga. App. 442 (81 S.E. 380); Raysor v. State, 132 Ga. 237 (63 S.E. 786).” See also Holland V. State, 17 Ga. App. 311 (86 S.E. 739), and cases cited. The defendant in error relies on Shaw v. State, 120 Ga. 660 (3) (29 S.E. 447), but it is true in this case, as it was. in the case of Callahan v. State, 14 Ga. App. 442 (81 S.E.“380), that “the instructions on the subject of reasonable doubt were not accompanied by any language relating to the testimony as to alibi (as in Shaw v. State, 102 Ga. 665, 29 S. E. 447), and equivalent to a specific direction to .the jury to acquit, if, upon a consideration of the proof of alibi along with the evidence as a whole, the jury had a reasonable doubt of the defendant’s guilt.”

Under the above rulings the court erred in failing to charge the jury on the “second branch” of the rule as to alibi, and in refusing to grant a new trial.

Judgment reversed.

Luke, J., concurs. Broyles, C. J., dissents.

Broyles, C. J.,

dissenting. The judge, both before and after his instructions upon the law of alibi, fully charged the law of reasonable doubt as to the general features of the case, and, subsequently to his instructions upon the law of alibi, specifically charged as follows: "If you have a reasonable doubt of his [the defendant’s] guilt growing out of the evidence, or the want of evidence, or engendered by the defendant’s statement, it would be your duty to return a verdict of not guilty.” Under the ruling of Shaw v. State, 102 Ga. 660 (29 S.E. 447), this charge, in the absence of a request to charge upon the second branch of the subject, was sufficient. Moreover, in the instant case the court did not even charge that the burden was on the defendant to establish his alibi; and hence the charge was not confusing, as was the charge in Raysor v. State, supra. In my opinion a new trial is not required.


author: Broyles, C. J.

text:
    11607.
    Mauldin, guardian, v. Mauldin.
    Decided November 9, 1920.
    Appeal from Fulton superior court — Judge Bell. March 17, 1920.
    R. F. Mauldin, of Fulton county, was adjudged of unsound mind and committed to the State Sanitarium at Milledgeville by the court of ordinary of Fulton county in November, 1917, and his wife was appointed guardian of his person and property. On January 16, 1919, while still in the State Sanitarium, he filed in his own name a petition in the court of ordinary of Fulton county, alleging: (1) that the orders of the court of ordinary in regard to.these matters were void; (2) that various sales made by the guardian under orders of that court were void, because the orders were fraudulently obtained; (3) that the guardian was wasting the estate, and (4) that he had been restored to sanity and capacity, lie prayed that tire various orders mentioned be revoked and set aside, that the issue as to whether he was completely restored to capacity and sanity be tried by a jury, that he be declared sane and capable of handling Ms estate, and that the guardian be ordered to deliver to Mm his property, money, and effects. The ordinary issued an order that the guardian be served with a copy of the petition. She demurred on the grounds: (1) that the petition did not set forth sufficient facts to afford a basis for the relief prayed; (2) that the petition was multifarious and there was a misjoinder of causes of action; and (3) that the court had no jurisdiction of the question whether the petitioner had been restored to sanity, the petition showing that he had been committed to the State Sanitarium at Milledgeville by orders of the court of ordinary and was still confined in the sanitarium; and the courts of Baldwin county, and no other court, had jurisdiction of this matter. The guardian filed an answer denying the material allegations of the petition. There was an appeal to the superior court, and in that court, the first ground of the demurrer was overruled, and the other two grounds were sustained, with leave to amend.
   Broyles, C. J.

1. The amendment to the petition did not set out a new cause of action, and the court did not err in allowing it over the objections urged.

(a) There was no merit in the objection that the amendment set up facts which developed after the filing of the original petition in the ordinary’s court. Jt is not error upon the trial on appeal in the superior court, to allow an amendment to the pleadings which could have been properly allowed in the ordinary’s court if the case had been there pending instead of in the superior court. The true test is: Was the subject-matter of the amendment within the jurisdiction of the ordinary’s court? See, in this connection, Watson v. Goolsby, 86 Ga. 805 (13 S. E. 106) ; Hufbauer v. Jackson, 91 Ga. 301 (18 S. E. 159) ; Stansell v. Massey, 92 Ga. 436 (17 S. E. 821); Berger v. Saul, 109 Ga. 240 (34 S. E. 1036) ; Patterson v. Sams, 2 Ga. App. 756 (59 S. E. 18).

2. It does not appear that the demurrers, to which the court ruled the original petition was subject, were urged against the petition after it had been amended. Therefore the question as to whether the amended petition was subject to those demurrers is not raised.

3. The motion for a new trial contained only the usual general grounds; the evidence amply authorized, if it did not demand, the finding of the jury, and, the trial judge having approved that finding, this court is without authority to interfere.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

By an. amendment, which was allowed by the judge of the ■ superior court over 'objection of the guardian, the petitioner alleged: (1) On or about February 2, 1919, the. authorities in charge of the State Sanitarium at Milledgeville disnjissed petitioner from custody, by letting him leave the sanitarium, and he has not since been and is not now an inmate of the sanitarium. (2) Since that date he has not been in the custody of any authority or person, is operating a store and buying and selling property, and is, and has ’been since his trial in 1917, sane and of sound and disposing mind; (3) that under the laws of the State he can not be returned or recommitted to the State Sanitarium without a jury trial; (4) that he is and has always been a resident of Fulton county, Georgia, and that since about January 17, 1919, he has lived and done business in that county; and (5) that his original incarceration in the State Sanitarium was in violation of the law, for he was committed to the sanitarium as a pauper, when he had sufficient property to pay for any treatment that might have been accorded him.

The guardian’s objections to the allowance of the amendment were: (1) It alleges anew and distinct cause of action. (2) It is founded on a new and entirely different set of facts from those stated in the original petition. (3) It contains facts and matters that have developed since the filing of the original petition. (4) The superior court, in cases of appeal from the ordinary’s court, is restricted in its jurisdiction to the limitations of the ordinary’s court, and the ordinary’s court could not have allowed the amendment, since it set up facts which developed after the institution of the original proceeding in the ordinary’s court. (5) The matters set forth in the statement were immaterial, irrelevant, and not germane to the original petition.

On the trial in the superior court the petitioner testified and introduced other witnesses as to his sanity at and before that time. J. W. Stallings, deputy clerk of the court of ordinary of Fulton county, testified: “I took an order from Judge Jeffries to the superintendent of 'the State Sanitarium at Milledgeville, requesting him to deliver Mr. Mauldin to me to be brought back to Atlanta as a witness in his case. He has not been recommitted since the trial of that case as far as I know. . . In December, 1918, I went to' Milledgeville and brought Mr. Mauldin back to Atlanta. . . I went down there after him with the expectation of bringing him back and putting him in jail.” The witness testified that on their return to Atlanta he left Mauldin and did not lock him up, and considered him “perfectly sane and capable of handling his business.” The jury found “in favor of the applicant and that the letters of guardianship be revoked and his property restored to him.” The case came to the Court of Appeals on exceptions to the allowance of the petitioner’s amendment, and to the overruling of the guardian’s motion for a new trial.

Anderson, Rountree & Crenshaw, for plaintiff in error.

Hewlett & Dennis, contra.


text:
    11670.
    ODOM v. THE STATE.
    Decided November 9, 1920.
    1. Error in refusing to have the demand for trial entered on the minutes, and in not sustaining at the next term of the court a special demurrer to the answer of the solicitor-general, is immaterial, in view of the proceedings at the succeeding term.
    2. Refusal to discharge the accused on the ground that lie had not been tried at the first or the second term of the court after demand, for trial was not error, under the facts of this ease.
    Indictment for possession of intoxicating liquor; from Muscogee superior court — Judge Howard. June 19, 1920.

      George C. Palmer, for plaintiff in error.

      C. F. McLaughlin, solicitor-general, contra.
   Broyles, C. J.

Any person indicted for an offense not affecting his life may demand, as a matter of right, a trial at the term when the indictment is found, or at the next term thereafter (Penal Code of 1910, § 983; Dublin v. State, 126 Ga. 580, 55 S.E. 487); and it is the duty of the judge to have the demand placed upon the minutes of the court, provided that a jury qualified to try the defendant is impaneled at the time when the demand is made. This is true even though the defendant may have temporarily absconded or concealed himself from the officers of the law, provided he appeared in court and made his demand for trial before the adjournment of the term, and before the juries qualified to try him had been discharged. See, in this connection, Hall v. State, 21 Ga. 148.

(a) Under the above ruling and the facts of the instant case the court erred in refusing to have the defendant’s demand for a trial spread upon the minutes of the court, and in not sustaining at the next term of court some of the defendant’s special demurrers to the answer of the solicitor-general. These errors, however, were harmless in view of the further proceedings in the case at the succeeding term of the court.

Ordinarily, where a defendant has-made a demand for trial, and the demand has been, or should have been, placed upon the minutes of the court, the State at the next succeeding term of court must give the defendant a trial. And it is not usually necessary for the defendant at the latter term to make another demand for trial, or even to call the attention of the court to his case. However, where at the latter term the case is called for trial in its regular order on the docket, or, by consent of the defendant’s counsel, out of its regular order, and the defendant fails to answer to his name and is not present in court, then the State has done all that it is required to do in the premises, unless the defendant subsequently during .the term of the court, and when a jury qualified to try him is impaneled, appears in court and notifies the court of his presence. In the instant case it appears from the affidavit of the solicitor-general that, by the consent of the defendant’s counsel, the case was called for trial at the next term after the term of the court at which the defendant’s demand was made, and that the defendant failed to answer to his name and was not present in court. It is true that counsel for the defendant in his affidavit stated that the solicitor-general had agreed to pass his cases for that week, and that he (defendant’s counsel) did not consent to the calling of this case for trial. As to this question of fact however the judge was the trior, and his finding thereon cannot be set aside by this court. It further appears that defendant’s counsel had the defendant in court on every day of the following week, but it is not shown that the judge or the solicitor-general was notified of the defendant’s presence, or that either of them knew of it. Under these circumstances, the court did not err in denying the defendant’s motion, made after the juries qualified to try him had been discharged, to absolutely discharge and acquit him of the offense charged. This ruling is not in conflict with the decision in Mager v. State, 21 Ga. App. 139 (94 S. E. 82), and the eases there cited, as the facts of the instant case are substantially different from the facts of those cases.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11676.
    Jackson v. The State.
    Decided November 9, 1920.
    Indictment lor murder — conviction of shooting’ at another: from Oconee superiof court — Judge Cobb. June 3, 1920.

      Wolver M. Smith, John B. Gamble, for plaintiff in error.

      W. C. Dean, solicitor-general, contra.
   Broyles, C. J.

1. Under an indictment for murder, the accused may be convicted of the offense of shooting, at another, if the latter offense is substantially charged by the averments of the indictment. Watson v. State, 116 Ga. 607 (43 S. E. 32).

2. In the instant case two persons were jointly indicted in one count for the offense of murder. The indictment charged that the accused “ Zack Hillman and Taylor Jackson did then and there, unlawfully and with force and arms, make an assault in and upon one Clifford Mack, and then and there, unlawfully, feloniously, wilfully, and with malice aforethought, did kill and murder by shooting the said Clifford Mack with a certain pistol which the said Zack Hillman and Taylor Jackson then and there held, and giving to the said Clifford Mack then and there a mortal wound, of which mortal wound the said Clifford Mack died.” This indictment sufficiently charged the offense of shooting at another, and under it the defendants could be legally convicted of that offense. See, in this connection, Watson v. State, supra (5).

3. Upon the hearing of a motion to arrest the judgment in a criminal ease, the court should consider only the indictment and the verdict, the presumption being that the .evidence authorized such a verdict. Watson v. State, supra (6).

(a) It follows from this ruling that where two persons are jointly indicted for murder, and are tried separately and separate verdicts are returned, one of the defendants being found guilty of voluntary manslaughter and the other of shooting at another, and the latter defendant makes a motion to arrest the judgment, upon the hearing thereof the court should look only to the indictment and the verdict finding the defendant guilty of shooting at another. The verdict finding the other defendant guilty of voluntary manslaughter cannot be considered, and it will be conclusively presumed that the evidence in the ease legally authorized the verdict of shooting at another.

4. Under the preceding rulings the court did not err in overruling the motion in arrest of judgment.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Bloodworth, J.

text:
    11682.
    JONES v. THE STATE.
    Decided November 9, 1920.
    In view of the defendant’s statement at the trial and of his counsel’s request to the court to charge the law of voluntary manslaughter, it is not cause for a new trial that the court charged the jury on that subject.
    Indictment for murder — conviction of manslaughter; from Carroll superior court—-Judge Terrell. June 15, 1920'.

      Smith, & Smith, for plaintiff in error.

      C. E. Roop, solicitor-general, contra.
   Bloodworth, J.

The accused was indicted and tried for murder and was convicted of voluntary manslaughter. The only ground of the amendment to the motion for a new trial alleged that the court erred in charging the law of voluntary manslaughter. In approving the ground of the amendment to the motion for a new trial, the court certified that “ movant’s counsel asked me to charge the law of voluntary manslaughter, in view of defendant’s statement.” In the brief of counsel for plaintiff in error he says that in view of the certificate on the amended motion by the presiding judge “we deem it useless to call the court’s attention to the ground of the amended motion.” The verdict is in conformity to that portion of the charge in reference to voluntary manslaughter. This charge was given at the request of counsel for defendant and was based on his statement, and a new trial will not be granted because of this charge. See Threlkeld v. State, 128 Ga. 660 (1) (58 S. E. 49), and citations; Partee v. State, 19 Ga. App. 753 (3) 757 (92 S. E. 306), and cases cited. The evidence would have supported a verdict of murder, and the plaintiff in error is fortunate in getting off with a lower verdict.

Judgment affirmed.

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


text:
    11683.
    James v. The State.
   Broyles, C. J.

The charge of the court fully and fairly presented, with one exception, the law governing the substantial and controlling issues of the case, including the defendant’s contentions; the error being that the court, in charging upon the subject of assault with intent to murder, stated, in substance, that all the rules applicable in a case of murder, except the fact of the killing, apply to a case of an assault with intent to murder, whereas there is another vital exception: In a murder case, under certain circumstances, the law presumes malice or the intent to kill on the part of the slayer, while in a case of assault with intent to murder, where death does not result, there is no such presumption, but it is incumbent upon the State to show by the evidence a specific intent to kill. This error, however, was harmless, since the defendant was convicted not of the offense of assault with intent to murder, but merely of shooting at another. The motion for a new trial does not point out any error that would warrant this court in sotting aside the verdict, which is amply supported by the evidence and approved by the trial judge.

Decided November 9, 1920.

Conviction of shooting at another; from Douglas superior court — Judge Irwin. June 4, 1920.

Application for certiorari was denied by the Supreme Court.

J. S. James, M. J. Head, J. H. McLarty, J. S. Edwards, W. A. James, for plaintiff in error.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11687.
    McBride v. The State.
    Decided November 9, 1920.
    Indictment for manufacture of intoxicating liquor; from Randolph superior court—-Judge Worrill. May 29, 1920.'

      Charles W. Worrill, for plaintiff in error.

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

The special grounds of the motion for a new trial are merely amplifications of the general grounds; and the evidence, while circumstantial, was sufficient to exclude every reasonable hypothesis save that of the defendant’s guilt.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11695.
    OGLESBEE v. THE STATE.
    The extraordinary motion for a new trial was properly overruled.

      (a) Before a new trial should be granted upon alleged newly discovered evidence it should be such as, if believed, would probably produce a different verdict upon another trial, such evidence as would be “ decisive of the controversy.”

      Decided November 9, 1920.
    (b) “The extraordinary motions or cases contemplated by the statute are such as do not ordinarily occur in the transaction of human affairs, as when a man has been convicted of murder, and it afterwards appears that the supposed deceased is still alive, or where one is convicted on the testimony of a witness who is subsequently found guilty of perjury in giving that testimony, or where there has been some providential cause, and cases of like character.” Cox v. Hillyer, 65 Oct. 57 (2).
    Conviction of manslaughter; from Tattnall superior court — Judge Sheppard. June 3, 1920.
    The plaintiff in error was indicted and tried for murder and was found guilty of voluntary manslaughter. His motion for a new trial was overruled, and the judgment was affirmed by this court. See 24 Ga. App. 276 (101 S. E. 722). Thereafter, at the January adjourned term, 1920, of the trial court he filed an extraordinary motion for a new trial on the ground of newly discovered evidence. The record shows that the homicide took place at night in a public road near a creek and in the presence of two persons, both of whom were witnesses at the trial. The alleged newly discovered evidence is contained in the joint affidavit of R. W. Geiger and G. C. Coley, which is as follows: “ That they are both white men and now reside in said county, and have lived there nearly all their lives; that on the night of August 23, 1918, they were in Glennville, in said county, and that, as they now recall, this was on Friday night of the week, and both of them lived north of Glennville and upon or near the road going to Hagan; that a short while after dark they were going up toward their home and crossing one prong of Beard’s Creek and known as the Jack DeLoach crossing; that just as they walked off the bridge on the north side of said creek they heard some loud cursing between there and the home of Mans Bell and near his yard. It seemed, to be the voices of two men, and they seemed to be fussing about some whisky and. a pocket-book. Soon this loud talking hushed, and we went on going north on the road toward Hagan, and when about 200 yards from said bridge we suddenly saw two men and two women coming towards us, with the smaller man and the larger woman walking ahead, and the larger man and a small girl walking behind. The man and the woman were disputing about some money and a pocket-book, and the man was accusing the woman of taking $30 from him. The little girl behind said to the man with her, ‘Don’t let him hurt Tinnie.’ The large man behind said, ‘Let me get to thé damn son of a bitch,’ and went toward Mm. We were back in the road about ten steps from them when this second row started, and we stepped behind some bushes, hoping that the two men and two women would go on by us. The large man rushed on the smaller man and grabbed him in his shirt with his left hand and threw his right hand around the other man’s neck. It was a bright moonlight night, and from where we were we could not. see if he had anything in his right hand. At once the men fell and the girls ran, and in a minute or two the small man got up and passed by us and went on towards Glennville, and the other man lay on the ground as if he were dead. At this time the girls were nearly to the house where Mans Bell lived. This was on one of the main public roads of the county, and we were afraid to go to the dead man beside the road and be found there with Mm dead. We quietly went round and went on our journey above there and upon the Iiagan road where we had started. Knowing both Weathers and Oglesbee well, we thought they were the parties, and later learned this was true. At the moment of the killing we were afraid to go to the dead man, and having acted as we' did we did not care to be connected with the matter and be carried to court. From what we saw we knew the man that did the killing was justified, and we soon learned that he was turned out of jail under a small bond. We believed he would be turned loose by the jury, and we kept our mouths shut. Later we learned Oglesbee had been convicted of voluntary manslaughter and sentenced to eight years; then we heard he had moved for a new trial and would get one. We have just learned that the high court in Atlanta has decided against him and that he must go to the chain-gang eight years. We cannot remain silent any longer, and we hunted up the lawyer for Oglesbee, H. H. Elders, and told about it. This affidavit is made to be used in the hearing of an extraordinary motion for a new trial in this matter.”
    In the counter-showing made by the State, Tal Durrence makes affidavit that “ he saw the said Geiger some time about Christmas, 1919, at the home of deponent in said county, and had a conversation with him concerning the above-stated case, and that during said conversation the said Geiger told deponent in substance that he was in Brunswick, Ga., at the time of the killing of Weathers by the defendant Oglesbee, and that his first knowledge of the’ occurrence came to him through the newspaper; that he and Ogles-bee had always been good friends, and that Oglesbee had tried to get him to help- him get a new trial, and had endeavored to get him to go and see Tinnie Murray and get her to change her testimony.” The aunt of Coley swears that his character is bad, and that “on several occasions she has heard him talk about the killing of Hamp Weathers, and has heard him say many times that he knew absolutely nothing of the killing; that at her home just a few days prior to this date, when asked if he had signed an affidavit that he saw the killing of Oglesbee, or if he had signed any affidavit at all, he said that he had not, that he didn’t know anything about it, and had made no affidavit; that they had him up to Beidsville and asked him about whether he knew Hamp Weathers, and he replied that he did, and then whether he knew Oglesbee, and he replied that he did not, and then as to whether or not he knew anything about the'killing, and that he told them that he did not know anything about it, and that he refused to make any affidavit concerning it.” Another person also swears to the bad character of Coley. The record contains a second affidavit made by Coley, in which he repudiates his first affidavit and says, that “ he was not present at the place when the killing was done, and knew nothing about it until the day after Weathers was killed; that he knows nothing about said murder case except what he has heard; that he has signed an affidavit in this matter before, and understood that affidavit was only to the effect that he knew Hamp Weathers and Robert Oglesbee; that he cannot read nor write.” Coley made another affidavit, in which he denied making the second one, but reaffirmed the statements made in his first, and denied the statements attributed to him by his aunt. A second affidavit made by Geiger denied that he had ever made the statement attributed to him in the affidavit of Durrence. There were also affidavits as to the good character of Geiger and Coley, and as to the bad character of the aunt of Coley.

      Elders & DeLoach, for plaintiff in error.

      J. Saxton Daniel, solicitor-general, contra.
   Bloodworth, J.

(After stating the foregoing facts.) Motions for new trials on extraordinary grounds are not favored by the courts, 'and “ a stricter rule is applied to an extraordinary motion for new trial based on the ground of newly discovered evidence than to an ordinary motion on that ground.” Norman v. Goode, 121 Ga. 449, 455 (49 S.E. 268). Even in an ordinary motion for a new trial based upon newly discovered evidence it has been uniformly held that “though the witness sought to be impeached by newly discovered evidence was the only witness against the prisoner upon a vital point in the case, if the sole effect of the evidence would be to impeach the witness a new trial would not be granted.” Key v. State, 21 Ga. App. 795 (101 S.E. 917), and cases cited.

The only effect of the alleged newly discovered evidence in this, case would be to impeach the two witnesses who were sworn for the State at the trial. In addition to this, the alleged newly discovered evidence is of such a character that even if unattacked, it would hardly be -received as credible by the average juror. Before a new trial should be granted upon alleged newly discovered evidence it should be such as, if believed, would probably produce a different verdict upon another trial, such evidence as would be “decisive of the controversy.” It can hardly be insisted that the evidence of Geiger and Coley is of this character. Moreover, it is now the fixed law of this State that “ the extraordinary motions or cases contemplated by the statute are such as do not ordinarily occur in the transaction of human affairs; as, when a man has been convicted of murder and it afterwards appears that the supposed deceased is still alive, or where one is convicted on the testimony of a witness who is subsequently found guilty of perjury in giving that testimony, or where there has been some providential cause, and cases of like character.” Rogers v. State, 18 Ga. App. 702 (90 S.E. 356), and cases cited. The motion under consideration does not come within this rule. The extraordinary motion for a new trial was properly overruled.

Judgment affirmed.

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


text:
    11708.
    Slaughter v. The State.
    Decided November 9, 1920.
    Conviction of shooting at another; from Monroe superior court — Judge Searcy. June 4, 1920.

      A. M. Zellner, for plaintiff in error.

      E. M. Owen, solicitor-general, Persons & Persons, contra.
   Broyles, C. J.

The motion for a- new trial contains only the usual general grounds; the verdict was amply authorized hy the evidence, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11717.
    Melton v. The State.
    Decided November 9, 1920.
    Conviction of larceny of automobile; from Randolph superior court — Judge Worrill. May 29, 1920.
    Failure to charge on circumstantial evidence, and the charge given as to admissions and confessions (in the language of the Penal Code, § 1031), were complained of in the motion for a new trial.. It was contended that no confession was proved, though statements in the nature of admissions were shown, and that this charge tended to impress on the jury that the defendant had confessed guilt. There was no request to charge on circumstantial evidence.

      Charles W. Worrill, for plaintiff in error.

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

The conviction of the defendant did not depend entirely upon circumstantial evidence; the evidence, circumstantial and direct, amply authorized the verdict, and none of the special grounds of the motion for a new trial is meritorious.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11719.
    LOGAN v. THE STATE.
    Decided November 9, 1920.
    As to the law relating to dying declarations, the charge of the court was sufficiently full, in the absence of a request for additional instructions on that subject.
    Conviction of manslaughter; from Butts superior court — Judge Searcy. July 17, 1920.

      J. T. Moore, Greene F. Johnson, for plaintiff in error.

      E. M. Owen, solicitor-general, W. E. Watkins, contra.
   Bloodworth, J.

1. Plaintiff in error was tried for murder, and there was a verdict of voluntary manslaughter. There was evidence of dying declarations. To the charge given relating to these declarations there were no exceptions filed, but complaint was made that the court erred in failing to charge more fully in reference thereto, the exceptions being based on the ruling in Denton v. State, 6 Ga. App. 3 (63 S.E. 1132). That case is easily differentiated from the one now under consideration. There is nothing in this case to suggest that “ the declarant’s account of the occasion was influenced by resentment, and therefore was biased and incomplete.” There was no charge in that case as in this that if the jury received the dying statement it was their duty to “ receive it with great care and scan it with caution.” In the Denton case there was a proper and timely written request to charge; in this case there was no such request. In the instant case, the court having charged generally and correctly the law relating to dying declarations, if a fuller charge in reference thereto was desired it should have been requested in writing before the jury retired “to consider of their verdict.” •

2. In the brief of counsel for the plaintiff in error he specifically abandons the general grounds of the motion for a new trial.

Judgment affirmed.

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


text:
    11738.
    Kitchens v. The State.
    Decided November 9, 1920.
   Broyles, C. J.

It appearing that the bill of exceptions in this case was not tendered the judge within twenty days of the date of the judgment overruling the defendant’s motion for a new trial, the writ of error must be Dismissed.

Luke and Bloodworth, JJ., concur.

Conviction of manslaughter; from Washington superior court — Judge Hardeman. June 8, 1920.

Rawlings & Wood, for plaintiff in error.

Walter F. Grey, solicitor-general, contra.


text:
    11726.
    Davis v. The State.
    Decided November 9, 1920.
    Indictment for manufacture of intoxicating liquor; from Macon superior court—Judge Littlejohn. June 24, 1920.
    The sheriff testified: that he went to the defendant’s house when' the defendant was there, unlocked the defendant’s smokehouse with a key furnished him by the defendant, and found in the smokehouse three tubs of mobby, boiling hot, and two barrels of beer. Mobby is beer after the whisky has been run out of it. He smelled the mobby, and would say that beer from which mobby could be made was alcoholic. The barrels of beer were buried in the ground and covered with a sack, some planks, and a meat box. The beer “looked like it had just been put up; sack of meal, 25-pound flour sack; looked to be probably a peck or so of corn that looked like it was just boiled and poured in there, and the barrels filled with sweetened water. It had not reached a state of fermentation. Such a mixture as that is used for making whisky.” The meal and boiled corn with the sweetened water, in the quantities mentioned, would make an acceptable beer for the manufacture of intoxicating liquor. The witness further testified: “ Around his premises we found a trough. There was a road that went from his house down to the creek, and there was a gully washed out from the road, and those gullies were filled with cane pummaee. In one of those gullies was a trough with a hole in each end of the head. Troughs with holes in either end may not be used for watering hogs or horses or anything like that. All I ever saw were made to put a still worm through and make whisky.” Such a trough is capable of being used for the accommodation of a worm for the purpose of pouring water over it in the trough, for the distillation of intoxicating, liquor. The witness did not know of any other practical purpose for which it could be used. In the smokehouse were two tubs “about the size of the one that was used for making the whisky in,” a half barrel that was torn down and the hoops and things were under the edge of the house. There was another half barrel that looked as if it was off the same barrel, but it had not been used in some time. The witness was then asked, if he found any cap, and answered, “That was what I was speaking about; it was used for a cap.” “ In the room in the house the floor was wet and smelled sour with beer, and there were some six or eight brick piled up by the side of the fireplace that were hot, and a bucket of mud and clay sitting up in the corner of the house, sort of covered up.” On the broken pieces of the barrel found under the house the tub was muddy and stained, and the mud on the barrel staves and on the tub compared with the mud found in the bucket in the house — was the same thing. Mud is used for the purpose of combining the cap with the heater in making liquor. A barrel of syrup was found in the barn. On the fence were old 'sacks and old quilts, muddy and wet, and smelling of sour beer. In the house a quart of home-made whisky was found by reaching up the chimney, and the defendant, when talking about it, said, “I may serve twenty years for this, but I’ll tell the truth; there ain’t a speck of potash in'that; it’s pure whisky; that’s straight whisky. You saw the corn and stuff it’s made out of. That’s all the kind you get down there; it is pure stuff.” This was said freely and voluntarily. The whisky was intoxicating and looked as if it was made out of syrup and corn; the defendant said it was made out of the same kind of stuff that was in those barrels. The witness found a pot boiler, a zinc tub, and a fire at one end of the house; no worm was found, and he asked the defendant to show the worm to him, and the defendant said, “You will have to find that. I done everything you told me, but that’s one thing I ain’t going to do.” He found water there, a well and a creek. At the trial the defendant stated that the beer was there for his hogs, that he had no still or worm and had made no whisky, and did not know that the bottle of whisky was up the chimney; that about two weeks before that time a doctor had directed him to get some for his boy, who had pneumonia, and he got about five pints and gave it to his wife, and that “after they came in she put it up the chimney to keep them from finding it.”
   Broyles, C. J.

The evidence authorized the verdict, and none of the special grounds of the motion for a new trial shows cause for a reversal of the judgment overruling the motion.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

In subdivisions of ground 1 of the amendment to the motion for a new trial, beginning, “that the verdict is contrary to evidence and without evidence to support it,” for reasons stated, there is a summary of testimony of the sheriff, with objections to parts of it as being nonexpert opinion and mere conclusions. It was further contended that the verdict, and the sentence, which fixed a term of from one to three years in the penitentiary, were excessive and “out of proportion to the crime charged,” and “contrary to every principle of Democratic government and to the principles of justice and equity.” In the brief of counsel for the plaintiff in error it is stated that “the amended motion is an attempted elaboration of the original motion for new trial, . . . together with several minor assignments on rulings of the court, . . . now insisted upon for the reason that the admission of the’ testimony objected to was highly prejudicial to the rights of the defendant;” but there is no further reference to these rulings.

Gilbert C. Robinson, for plaintiff in error.

Jule Felton, solicitor-general, contra.


text:
    11728.
    WALLACE v. THE STATE.
    Decided November 9, 1920.
    In refusing to charge the jury as requested, and in charging as the court did as to the owner’s consent to the taking away of the package alleged to have been stolen, and as to what would constitute a sufficient asportation or removal of the package by the accused,—-a shipping clerk employed in the owner’s store, from which it was taken by a drayman who, according to the evidence, was requested by the defendant to carry it off and to sell the goods therein for him, and who informed the owner of this request before taking it away and was thereupon told to take it out as the defendant had requested him to do,-—■ there was no error that would require a new trial.
    A conviction of simple larceny was authorized by the evidence.
    Indictment for larceny from house — conviction of simple larceny; from Chatham superior court—-Judge Meldrim. June 24, 1920.
    Application for certiorari was denied by the Supreme Court. According to the evidence the accused, Charles Wallace, a shipping clerk in the place of business of the Shuptrine Company, asked Charles Gadsden, a wagon driver employed at the same place, to carry off and sell for him, wherever it could be sold, a certain package containing 4040 small packages of chewing gum, belonging to the Shuptrine Company, which was then upstairs in the company’s store, and to bring the money back to him. Gadsden went to Mr. Shuptrine, the president of the company, and told him about it, and Mr. Shuptrine told Gadsden to “go ahead and take it out” as "Wallace had told him to do. Gadsden “went back upstairs and told Wallace it was all right, and he (Wallace) prat it on the elevator and brought it downstairs and put it on the wagon;” “he did not make any attempt to take it privately; he did it publicly, where any one could see it;” he placed it "on the elevator with other packages which were to be taken out, and took it from the elevator to the wagon, and the witness drove the wagon to Nevill’s place of business and told Nevill about it, Nevill informed Shuptrine that the package was there, and Shuptrine went there and got it and took it back to Shuptrine Company’s store. Shuptrine testified: “I knew this stuff was going out of the store, I would say, about midday. . . It actually left the store about half past five or six o’clock. . . It was upstairs in the store when I knew it was going out. I told Gadsden, when he informed me what Charley Wallace wanted him to do, to take out anything that Charley gave him to take out. Gadsden told me he took it out. I did not see it on the wagon before it was taken away from the store. . . I told him to take the stuff that Charley gave him and carry it away from the store. That is all I told him. I did not tell him to go upstairs and bring the goods down himself.” The wholesale value of the package was about $140. A detective testified that the defendant freely and voluntarily told him and Mr. Shuptrine that this package was “ the first and only thing that he ever stole from Mr. Shuptrine,” and that when he stole the package he gave it to Gadsden to take out and sell for him. At the trial the defendant stated that Gadsden said to him, “If you will put 50 boxes of Adams gum up for me to take out on the wagon, I will take it out and sell it. . . I will get $40 for it and we will divide the $40 between the two of us. . . You aré the shipping clerk here, and there is no chance of getting anything from here without you knowing it;” so Gadsden got it and put it on the elevator and took it down with, the other freight.
    The jury found the accused guilty of simple larceny, his motion for a new trial was overruled, and he excepted. The main contention in the motion for a new trial was that the consent of the owner prevented the taking and carrying away of the package from being larceny. In one of the grounds of the amendment to the motion it is alleged that the court erred in refusing to charge that “if the defendant conceived a plan of stealing the property described, and set out to put his plan in execution, but did not remove the property from the premises, and thereafter an agent of the owner, with the consent of the owner and at the instigation of the owner, assisted the defendant in removing the property from the premises, the defendant would not be guilty of larceny from the house, since the property was being removed with the consent of the owner and the active assistance of his agent.” In this ground it is alleged that “the fact that the defendant may have been convicted of simple larceny will not alter the case, since it was shown that the defendant had charge of the goods as shipping clerk, and the fact that he may have changed the position of the goods in the store would not complete the crime. He had to do an unauthorized act with regard to the removal of the goods. He had to get the goods from the store without the consent of the owner or the assistance of his agent.” For this reason it is alleged in another ground of the motion, that the court erred in charging that if the goods were “moved at all by the defendant, that is in law a sufficient asportation or taking of the goods.”
    The court, on request of the defendant, charged as follows: “ If the agent of the owner of the property described in the indictment, after obtaining the permission of the owner to move the goods from the premises, then went to the prisoner and induced the prisoner to steal the property, and the prisoner did take the property and delivered it to the agent of the owner of the property, the defendant would not be guilty; and it does not make any difference, as far as his guilt or innocence is concerned, that he did not know the owner had consented to the taking of the property.” Later the court, in response to an inquiry from the jury as to whether they could find the accused guilty “if he did not steal privately and was not' the originator of the crime,” charged them as follows: “Now, as to what you mean, by originator of the crime. I' am not clear. I charge you upon this subject, if he had the intent to steal, whether that intent originated with him or with some one else, you would be authorized to find him guilty, if all the essential elements were proven to your satisfaction and beyond a reasonable doubt. But if Mr. Shuptrine consented to his taking and carrying away the goods of the Shuptrine Company, then he could not be found guilty.” It is alleged that the court erred in thus charging in response to the inquiry of the jury, because the effect of this part of the charge was to remove from the consideration of the jury one of the defenses, “to wit, the fact that the defendant was induced to remove the property by the agent of the owner of the goods, and that therefore the goods were not taken against the will of the owner.”

      David S. Atkinson, for plaintiff in error,
    cited: 25 Cyc. 38 (2); 55 Ga. 391, 395; 113 Ga. 1039; 6 Ga. App. 801; 3 Ga. App. 342; 18 Ga. App. 233; 18 Colo. 373 (25 L. R. A. 341); 42 Tex. 108; 76 Mich. 200; 53 Ga. 249.

      Walter C. Hartridge, solicitor-general, Shelby Myrick, contra,
    cited: 35 Ga. 247; 72 Ga. 745; 113 Ga. 1038.
   Bloodworth, J.

1. None of the grounds of the amendment to the motion for a new trial points out any error which would require this court to grant a new trial.

2. There is some evidence to support the verdict, which has the approval of the presiding judge, and this court will not interfere.

Judgment affirmed.

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


text:
    11729.
    Hall v. The State.
   Broyles, C. J.

I. In the state of the record it does not appear that the judge abused his discretion in overruling the defendant’s motion for a continuance of the case.

2. The charge of the court upon the subject of a reasonable doubt was not error for any reason assigned.

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

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

Decided November 9, 1920.

Accusation of carrying pistol; from city court of Macon — Judge Guerry. July 2, 1920.

The definition of a “reasonable doubt,” as given in the charge of the court, was complained of in the motion for a new trial, the movant contending that it “was error and that it would, have been better -fox the court not to have defined a reasonable doubt at all, and that the use of the word ‘conjecture’ was error.” The instruction complained of was as follows: “A reasonable doubt, as contemplated by law in the trial of a criminal case, is not a doubt which is a mere conjecture that the defendant may possibly be innocent, but is a doubt as to his guilt which exists after a conscientious effort to ascertain the truth on that question from the evidence, and which is of so serious a nature as to prevent an impartial mind from being convinced by the evidence to a moral and reasonable certainty that the defendant is guilty.”

Hubert F. Rawls, for plaintiff in error.

R. W. Moore, solicitor, H. S. Strozier, contra.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11734.
    BOSTICK v. THE STATE.
    Decided November 9, 1920.
    1. The rule that exceptions not argued in the excepting party’s brief in this court will not he considered applies to exceptions to the overruling of a demurrer as to which nothing further appears in the brief than that he filed a demurrer on grounds stated.
    2. On the trial of one charged with having had possession of intoxicating' liquor, where a witness for the prosecution testified to the purchase of such liquor from the defendant, it was not error to refuse to • allow the witness to give, on cross-examination, the names of other persons from whom the witness had bought whisky.
    Indictment for possession of liquor; from Jefferson superior court-—Judge Hardeman. June 28, 1920.

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

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

1. In the brief of counsel for plaintiff in error is the following: “When the case was called for trial by Hon. R. W. Hardeman, judge presiding, the defendant, before arraignment and before plea, pleaded to said indictment, filed a special demurrer to the said indictment on several grounds, all of which are set forth in said written demurrer, and especially upon the ground that the said superior court of Jefferson county had no jurisdiction to try this case, but that jurisdiction was laid in the Federal court since the passage of the national prohibition law by the United States Congress, which demurrer was filed in the office of the clerk of said court and is of record in said case.” The brief contains no further reference to the demurrer. In Youmans v. Moore, 11 Ga. App. 66 (4) (74 S. E. 710), it is held that “Grounds of error not covered by the brief or the argument of counsel for the plaintiff in error will be treated as abandoned. The general statement in the brief that grounds not referred to or argued are nevertheless not abandoned will not be sufficient to change the rule above announced. Courts of review have the right to expect assistance from counsel by citation of authority or argument, and will.be apt to accept the inference that) the lack of interest by counsel is due to a conviction of the lack of merit.” See also Muse v. Hall, 18 Ga. App. 651 (3) (90 S. E. 222); Rounsaville v. Camp, 19 Ga. App. 336 (4) (91 S.E. 446), and cit. The above quotation from the brief of counsel for plaintiff in error is merely a statement of facts, and does not amount to an argument in support of the grounds of the demurrer, and affords no assistance to the court in considering them, and the failure to say anything more in reference thereto amounts to an abandonment of the demurrer.

2. The court did not err in refusing to allow a witness for the State, on cross-examination, to give the names of persons other than defendant, from whom the witness had purchased whisky.

3. The excerpts from the charge of which complaint is made contain no reversible error.

4. There is ample evidence to support the verdict.

Judgment affirmed.

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


text:
    11750.
    Adams v. The State.
    Decided November 9, 1920.
    Indictment for larceny of hog; from Wilkinson superior court — Judge Park. July 19, 1920.
    The court charged in substance that the jury would be authorized to convict the accused if the evidence satisfied their minds that the hogs were stolen from the prosecutor and were found in the recent possession of the defendant, and if the defendant or the evidence in the case failed to give a reasonable explanation of this possession. This part of the charge was complained of as expressing an opinion that these facts would prove guilt beyond a reasonable doubt. It was further contended that the court erred in using the words “ recent possession ” and not explaining that it is the possession of the recently stolen hog that .would require an explanation.

      Sibley & Sibley, for plaintiff in error.

      Doyle Campbell, solicitor-general, A. Y. Clement, contra.
   Bloodworth, J.

1. The sufficiency of the description of the hogs alleged to have been stolen was brought in question by demurrer to the indictment, in which they were described as “ one red and black spotted sow hog of value $10, one white and black spotted sow hog of value $10, one red and black spotted male hog of value $10, one dark red male hog of value $10, and two white and black spotted sow hogs, of value of $10 each; all of the value of sixty and no/100 dollars and of the personal goods of O. A. Allen.” Under the ruling in Garrett v. State, 21 Ga. App. 801 (1) (93 S. E. 513), and the cases therein cited, the . court did not err in overruling the demurrer.

'2. There is no merit in any of the grounds of the amendment to the motion for a new trial. There was some evidence to support the verdict, which has the approval of the trial judge, and the judgment must be

Affirmed.

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


text:
    11751.
    Knight v. The State.
   Broyles, C. J.

1. The description of the stolen property was legally sufficient in an indictment for simple larceny in which the property was described as “ one red and black spotted sow hog of value $10, one white and black spotted sow hog of value $10, one red and black spotted male hog of value of $10, one dark red male hog of value $10, and two white and black spotted sow hogs of value of $10 each; all of the value of $60 and of the personal goods of 0, A. Allen.” The indictment was not subject to the demurrer interposed. Geiger v. State, 21 Ga. App. 75 (93 S. E. 1027), and citations; Adams v. State, ante, 765.

Decided November 9, 1920.

Indictment for larceny of bog; from Wilkinson superior court — Judge Park. July 19, 1920.

Sibley & Sibley, for plaintiff in error.

Doyle Campbell, solicitor-general, A. Y. Clement, contra.

2. The evidence was sufficient to authorize the jury to find that the offense was committed in the county of Wilkinson. See, in this connection, Cook v. State, 9 Ga. App. 208 (70 S. E. 1019), and citations.

3. None of the alleged errors of commission or of omission, in the charge of the court, when considered in the light of the entire charge and of the facts of the ease, requires a new trial.

4. The verdict was authorized by the evidence, and, having been approved by the trial judge, this court is without authority to set it aside.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.