text:
    472.
    GODDARD v. THE STATE.
    The essential requisites in the offense of cheating and swindling by false-representations are: (a) That the representations were made; (6) that they were knowingly and designedly false; (e) that they were-made with intent to deceive and defraud; (d) that they did deceive and defraud; (e) that they related to an existing fact or past event; (/) that the party to whom the false statements were made, relying on their truth, was thereby induced to part with his property. It is incumbent upon the State to prove all of these elements of the offense, and if any one is lacking in the proof the offense is not made out.

      Applying the facts proved to the above legal requirements, the verdict in this ease was without evidence to support it, the conviction of the accused vas contrary to law, and the trial court should have granted him a new trial.
    Accusation, of misdemeanor, from city court of Cartersville— Judge Foute. April 20, 1907.
    Argued May 27,
    Decided June 19, 1907.

      Joe M. Moon, for plaintiff in error.

      T. C. Milner, solicitor, contra.
   Hill, C. J.

The defendant was convicted of cheating and swindling, in the city court of Cartersville, on evidence substantially as follows: The accused was the owner of a light bay medium-sized horse, which he sold to the prosecutor for $35. At the time of the sale he represented to the prosecutor that the horse “was not over 10 or 12 years old, and .was a good corn and fodder eater, and was sound in every respect.” The prosecutor' saw the horse before he bought him, and drove him to his buggy. He was apparently very old, and was very poor. The accused told the prosecutor that his condition was due to the fact that a negro had made a crop with him and had fed him on Johnson grass; that all he needed was “feed,” was a good horse, and “had all the gaits and a pair of draw-bars thrown in,”'and that he was worth $15, and if he kept on fattening as he had done in the one month in which he had had him he would be worth $75. The prosecutor told the accused, after examining the horse, that “he seemed to be older than 10 or 12 years, and looked like he might be 16 years old;” but the accused insisted that he was only 10 or 12 years old. The prosecutor asked the accused if the horse could eat corn and fodder, and he replied that he could eat anything. The prosecutor and the accused hitched the horse to a buggy, and, after driving him awhile, told the accused that “he moved very well,” and that he would give him $35 for the horse. The accused wanted $45. A friend of the accused, standing near, listening to the barter, advised the accused to take the $35, and the accused, after hesitating awhile, consented to do so, and delivered the horse to the prosecutor. The prosecutor paid for the horse and took him home. This was on Saturday. On the next Monday the horse was returned to the defendant by the prosecutor, who stated that the representations that the horse was a good corn and fodder cater, and was only 10 or 12 years old, were untrue, and demanded the return of his money, which was refused. On Saturday night and Sunday morning the' prosecutor and his son gave the horse corn and fodder to eat, but he did not eat any of it. The prosecutor stated that he relied solely upon the representations made to him by the defendant as to the age of the horse and as to his ability to eat, but that he afterwards learned that the horse was 15 or 16 years old and could not eat corn and fodder. The prosecutor stated that, if he had known these facts, he would not have paid anything for the horse and would not have had him as a gift. One witness, besides the prosecutor, stated that the horse ate corn with difficulty and “stemmed” his fodder. This was substantially .the case as made by the State. Several witnesses for the defendant testified that the defendant was approached by the prosecutor and asked to sell him the horse; that the defendant was reluctant to sell the horse, stating to the prosecutor that he was in a bad condition because of bad treatment, and was not fit to sell, but that he thought he was worth $45; that he told the prosecutor that the horse had been fattening rapidly while in his possession, and that he had fed him on meal from the mill; that the horse was sound, and that he did not know his age, but that he was apparently an old horse; that he was told by the party from whom he got him that he was about 12 3>ears old; that, while the accused told the prosecutor that he fed the horse on meal' from the mill, he also told him that the horse could eat corn and fod- • der, as he had fed him on some. Several of these witnesses also testified that they fed the horse on corn and fodder after the prosecutor had turned him loose, and that he ate both. All the witnesses stated that the horse was old and very poor. One witness stated that after the prosecutor returned the horse, and the accused refused to take him, and he'was turned loose without an owner, he took possession of the horse, and for two months fed him on corn and fodder and other feed; that the horse fattened about two pounds a day, and got in good condition, and he “swapped him” for another horse, worth $35; and that he got in cash $10 besides. The foregoing is a substantial statement of all the material evidence in the ease.

In repeated rulings of this court it has been announced that the verdict of the jury will not be disturbed if there was any evideuce to authorize it; but .that if the verdict was entirely without evidence to support it, it will be set aside as contrary to law. • Several exceptions are made to thé charge of the court and to the refusal to charge as requested, and these exceptions are urged very forcibly by the able attorney for the plaintiff in error; but the view that we entertain of this case on the merits makes it unnecessary for us to consider any of these specific exceptions. We think the verdict against the defendant, even under the evidence for the State, is wholly unwarranted. To support a conviction for cheating and swindling, as charged in this case, .there are certain essential facts which it is incumbent upon the State to prove. Were the alleged representations made ? Were they knowingly false? Were they made with intent to deceive and defraud? Did they deceive and defraud? And was the prosecutor induced by such representations, believing in their truth, to part with his property? All these elements must exist before the offense is complete. There was evidence that the representations were made by the defendant to the. prosecutor, to wit, that the horse was a good corn and fodder eater, that he was not more than. 10 or 12 years old, and that he was sound in every respect. Were these representations false, and known to be so by the defendant when he made them? That the horse was sound in every respect was affirmed by all the witnesses, and was undisputed. The statement that he could eat corn and fodder was abundantly shown by actual experiments. The only testimony to the contrary was that of the prosecutor and his son that he did not eat the corn and fodder given to him by them on two occasions. There was no proof that the corn and fodder which they gave to the horse was in good condition; and, in view of the evidence that the horse always had eaten corn and fodder, it is fair to presume that its condition on the two occasions when he failed to eat them was the reason for such failure, and not the horse’s inability to eat such feed. The statement as to the age of the horse was apparently only the opinion of the defendant, for he said he had only owned the horse a short time; but it is fair to presume that the statement as to the age was. not made with intent to deceive the prosecutor, for the defendant gave him every opportunity to determine that question for himself. He turned the horse over to the prosecutor to drive, and assisted the prosecutor in making an examination of the horse. The age of the horse was a patent defect, discoverable by ordinary inspection. All- the witnesses testified that the horse, in the lariguage of Dr. Johnson, describing an old maid, was “old, ugly, and miserably poor.” Besides, the statement of the prosecutor shows that he was not deceived as to the age of the horse. After making an examination he stated that he believed the horse was more than 12 years old, and looked like lie might be 16 years old. “The evidence showing that the defects in the mare traded by the accused to the prosecutor were patent, and that they were actually discovered by the latter before the trade was concluded, the conviction of the accused of being a common cheat and swindler was not warranted, although he represented the mare to be ‘all right/ ” Rainey v. State, 94 Ga. 599, 19 S. E. 892.

We have preferred to go fully into the merits of this case, beJ •cause we are convinced from a careful consideration of the evidence that the conviction of the defendant was wrong. All the facts and circumstances cle’arly indicate that the defendant did not use any “deceitful means or artful practice” to induce the prosecutor to purchase the horse. By general consent, much latitude should be allowed in trading horses; but the evidence in this case failed to ’show that the defendant availed himself of any such latitude, but showed, on the contrary, that he was a fair and honest trader, and the reason, apparently, for dissatisfaction with his purchase by the prosecutor, was because his family did not like the horse, or, in the language of his son, “would not have such an old, poor horse.” We think the verdict of the jury was unsupported by the evidence, and that the defendant should have been granted a new trial. Judgment reversed.


source: Caselaw Access Project

author: Powell, J.

license: Public Domain

text:
    482.
    Ager v. The State.
   Powell, J.

1. The name “Amerieus Furniture & Undertaking Company” connotes a corporation; an allegation, in a criminal accusation, that this company is a corporation, is surplusage and. need not be proved. The admission of secondary evidence tending to prove such allegation is therefore harmless error, where the corporate entity has not been put in issue. Crawford v. State, 68 Ga. 822; Mattox v. State, 115 Ga. 221, 41 S. E. 700; Alsobrook v. State, 126 Ga. 102, 54 S. E. 805.

Accusation of cheating and swindling, from city court of Americus—Judge Crisp. April 15, 1907.

Submitted May 27,

Decided June 17, 1907.

Howell B. Simmons, for plaintiff in error.

Zach. Childers, solicitor, contra.

' 2. In a case of cheating and swindling, to give in charge to the jury-section 31 of the Penal Code, without more, is not sufficient compliance with a written request to charge that “intention is an essential ingredient, and it must be proved beyond a reasonable doubt, and, before you will be authorized to convict, it must appear that it was the intention of the defendant at the time to cheat and defraud the prosecutor.” Crawford v. State, 117 Ca. 251, 252, 43 S. E. 762; Mulkey v. State, 1 Ga. App. 521, 57 S. E. 1022.

3. Ho other error appears. Judgment reversed.


text:
    489.
    SAWYER v. CITY OF BLAKELY.
    1. A city whose charter contains a “general-welfare clause” may legally pass an ordinance prohibiting the possession of intoxicating liquors kept for the purposes of illegal sale.
    '2. Under such an ordinance, proof of the possession of the -liquor and an illegal sale thereof will authorize a. conviction.
    3. Certiorari lies to correct judgments which are irregular or erroneous, but not those which are wholly void.
    4. The courts will not pass upon moot constitutional questions.
    Certiorari, from Early superior court — Judge Worrill. April 12, 1907.
    Submitted May 27,
    Decided June 19, 1907.
    The plaintiff in error was convicted before the mayor, presiding in the police court of the City of Blakely, for a violation of the following municipal ordinance: “If any person shall have in his possession in said city any intoxicating liquors for the purpose of unlawful sale or giving away thereof, on conviction thereof such person shall be punished as prescribed in section 17 of the city ordinances. In prosecutions for the violation of this or•dinance, one half the fine shall be paid to the informer.” By section 17 of the city ordinances all persons convicted thereunder are to be punished according to section 13'of the city charter (Acts 1900, p. 223), which prescribes that the officer presiding in the police court shall have the authority to punish persons convicted therein, of violating the city ordinances, by fine not exceeding $100, by imprisonment in the jail of Early county, or such other place as the city council may provide for a prison, for a term not exceeding 100 days, either or both, and to.coerce the payment of fines by imprisonment. Labor in the chain-gang or on the streets, not exceeding 100 days, may be allowed as alternative to fine or imprisonment. Sentence may be cumulative. Upon the trial the accused moved a discharge on the'ground that there was no sufficient charter authority for the passage of the ordinance under which he was being tried. The mayor denied the motion, and to this one of the exceptions is taken. The evidence was conflicting; but the mayor adjudged the defendant guilty and imposed, a fine of $50, with the alternative of 50 days work on the streets of the city. The defendant sought certiorari, which was denied by the judge of the superior court.
    Among the grounds for certiorari it is contended that the judgment and sentence of the police court is void, because sec. 13 of the city charter is in violation of article 1, § 1, par. 2 (the due process of law clause), of the State constitution, “because it provides for a penalty of *3 1-3 months’ servitude in the chain-gang or on the streets of Blakely, without providing for the due process of law in the trial of offenders; the process allowed petitioner consisting of a warrant sworn out before the mayor, on which he was put upon trial, without a copy of the accusation charging him with a crime, and without a trial by jury, and with nothing more on the record than the name of the arresting officer, the names of the witnesses for the prosecution, the offense charged, and (after the trial) the judgment and sentence of the court.” A paragraph of the petition for certiorari also asserts: “Your petitioner avers that he has been denied the equal protection of the laws, contrary to ánd in violation of the fourteenth amendment of the constitution of the United States (Civil Code, § 6030) which says that ro State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ in that he was convicted of a crime whose punishment was more severe than the average punishment of misdemeanors in the State courts of our State, yet he was not furnished with an accusation of the crime, nor allowed a trial by a jury; and this deprivation of your petitioner’s constitutional rights he'assigns as error.” It appears that the accused did not appeal to the city council, but sought certiorari directly from the mayor’s decision. Section 14 of the city charter provides: “Any person convicted in the police court may obtain certiorari directly from the decision of the officer presiding in said court under the same rules as certiorari is obtained from the decision of county judges in criminal cases, or he may waive his right to apply for certiorari, and may, within four days from the rendition of the decision in the police court, enter an appeal to the city council, who shall hear the case anew, and their decision shall be final. There shall be no certiorari from the decision of the council.” In the petition for certiorari the applicant seeks to make the point that this provision of the charter is contrary to section 4634 of the Civil Code, which provides that certiorari can be had to correct errors in any inferior judicature, and is therefore unconstitutional, as being a special law in contravention of a general law.

      Park & Collins, for plaintiff in error. J. B. Pottle, contra.
   Powell, J.

(After stating the facts.) The ordinance under which the accused was convicted is valid. The charter of the City of Blakely (section 25) contains a broad “general-welfare clause,” and in addition thereto adopts by reference section 696 of the Political Code, which itself is broad enough in terms to authorize this ordinance. Mayson v. Atlanta, 77 Ga. 662, (3); Bagwell v. Lawrenceville, 94 Ga. 654, 21 S. E. 903 (2); Paulk v. Sycamore, 104 Ga. 728, 30 S. E. 417, 41 L. R. A. 772, 69 Am. St. Rep. 128; Reese v. Newnan, 120 Ga. 198, 47 S. E. 560 (1).

The mayor’s finding was supported by the evidence. Rooney v. Augusta, 117 Ga. 709, 45 S. E. 72 (2); Reese v. Newnan, 120 Ga. 198, 47 S. E. 560 (2).

The point that the section of the charter under which the punishment was imposed is unconstitutional and void will not be considered, nor certified to the Supreme Court; for certiorari lies, net to correct that which is void, but only that which is irregular or erroneous. Levadas v. Beach, 117 Ga. 178, 43 S. E. 418 (2) ; Bass v. Milledgeville, 122 Ga. 177, 50 S. E. 59.

The question as to the constitutionality of so much of the fourteenth section of the city charter as requires the accused to waive his right of certiorari in order to appeal to the city council, and makes the finding of that body final, is not properly before us; for tbe accused did not appeal to tbe city council, and no court has yet denied to him tbe right to certiorari from any decision of that body. The time to decide that question will not bo at hand until the right to certiorari from the decision of the city council is judicially denied and that judgment is brought under review. Courts will not gratuitously decide moot constitutional questions. Judgment affirmed.


author: Hill, C. J.

text:
    245.
    SOUTHERN RAILWAY COMPANY v. FLYNT.
    1. Tlie statute requiring the blowing of the whistle or the ringing of the bell and the cheeking of the speed of the train when approaching a public crossing is not applicable when the injury occurred elsewhere than at a public crossing. The statute is for the protection of those on the ci-ossing, approaching with the intention to use it, or who have just passed over the crossing.
    2. The violation of a rule of the company in the operation ■ of its trains is not actionable negligence unless such violation was the proximate cause of the injury.
    3. Relatively to travelers on adjacent highways, when the crossing law is not applicable, railroad companies are under no duty to regulate the speed of their trains to prevent horses from becoming frightened at the sight of the moving train, or the noise produced thereby, and are not liable for injuries resulting from horses becoming frightened on highways at the mere sight of its trains, or the noises usually and necessarily incident to. the running of the trains.
    4. Railroad companies are not required, where the crossing law does not apply, to give any warning signal to travelers upon adjacent highways of the approach of the train, nor are they required to keep any lookout for such travelers. The probability of. horses becoming frightened on public roads near to railroad tracks by the running of trains which may result in injury is a risk which the traveler on the road assumes, and is one for which the railroad company is not responsible, unless caused by the negligent conduct of its employees in operating the train in an unusual and unnecessary manner.
    5. The duty to give warning signals, and to keep a lookout, is limited to persons on the track or that apparently may get on the track. Ho such duty is required as to travelers on adjacent and parallel highways.
    G. Where those in charge of the running train see apparent danger to persons on the highway, it then becomes their duty to use reasonable and practicable care to prevent injury.
    7. “Injuries resulting from the frightening of a horse by the appearance of moving railway ,ears, trains, or locomotives, or the usual noises or incidents of their ordinary operation, are damnum absque injuria.”
    B. Applying the foregoing principles of law to the petition and the amendments thereto, there was no actionable negligence alleged; and the general demurrer should have been sustained.

      Action for damage;, from city court of Forsyth — Judge Clark. January 19, 1901.
    Argued March 28,
    Decided June 20, 1907.

      Arthur Reyman, Cabaniss & Willingham, for plaintiff in error.

      Smith, Berner, Smith & Hastings, contra.
   Hill, C. J.

To this petition the defendant demurred, generally, on the ground that the petition “does not set forth any cause of action,” the demurrer setting forth specifically wherein the petition fails to set forth any cause of action; and demurred specially on the ground that the petition failed to • set forth with sufficient particularity the rate of speed which was complained of. To meet this demurrer the plaintiff amended his declaration as follows: The train was running over the crossing at a rate of 10 or 15 miles an hour. Plaintiff and his wife were riding in his buggy about dark. On their approach to the town of Culloden they crossed the track of the railroad company and turned into a public road, which ran parallel with the track for several hundred yards down to another public crossing, just north of the depot of the defendant. The track and the public road were close to each other. Looking down this road to the depot of the defendant, a person would be unable in the nighttime, and at the hour in which they were traveling, to determine whether the train was moving at all, and if' moving, whether it was moving from or towards him, the inability to determine this fact being due to the straightness of the road and the track with reference to the depot. The place on the public road at which the injury occurred was near the public crossing, within the city limits. In view of this fact and the locality of the public road with reference to the track, it was the duty of the company to operate its trains, especially after dark, with such care and diligence, and to have its trains under such control, that they could be stopped at any time in the event travelers along the road were being endangered by their operation; and failure to exercise this care 'and diligence in this particular’ case brought about said injuries for which the defendant is liable. It is a rule of the defendant that “when cars are pushed by an engine (except when shifting'and making up trains in the yards) a white light must he displayed on the front of the leading car at night.” The train which caused the injury was being pushed back by the engine, and there was no light of any character upon the front of the rear car to put the plaintiff upon notice that the train was moving in his direction so that he could be upon his guard and get out of his buggy, or otherwise avoid the danger of the train; and this failure to comply with said rule was negligence. It was the duty of the defendant, in thé exercise of reasonable care and diligence, when it undertook to operate its trains from the depot back towards Atlanta and over the public crossing near the depot and along the highway over which the petitioner and his wife were traveling, to have a flagman or other employee on the end of the rear coach, so as to detect any danger to travelers over said road and avoid injuries to them. This was especially true in view of the fact that there was a public crossing over said railroad track; and, in any view, it was the duty of the company in operating its trains after night, pushing them back, to have rung the bell, blown the whistle, or to have had a light upon the rear end of said car, or an employee thereon to detect the danger to travelers and avoid injuries to them. Failure to have said light or said employee on the end of said ear, or to ring the bell or to blow the whistle, was negligence, for which the defendant was liable in the event of injury resulting.

Although it is alleged that the train approached a public crossing at an illegal and rapid rate of speed, without checking the speed or blowing the whistle or ringing the bell, it is clear, from the allegations of the petition as amended, that a violation of the requirements of the public-crossing law is not relied upon ■ as a ground of recovery.. This law is made only for the protection of travelers at or near the crossing; and in this case it is alleged that the plaintiff had left the crossing and was in the public road running parallel with the railroad down to the crossing near the depot. Indeed the crossing over which the plaintiff had driven was not the crossing which it is alleged the defendant approached and ran across without complying with the law. This was the crossing nearer the depot; and it is not alleged that the plaintiff intended to use this crossing; on the contrary, it is apparent that he did not so intend.

It is stated by the learned and eloquent attorney for the defendant in error that “the plaintiff put his right to recover, not upon the violation of the statute with reference to public crossings, either within or without the limits of a town, but upon the failure of the defendant to exercise reasonable care and diligence in the operation of its trains after dark, and at the particular place •described in the petition and the amendments thereto.” At this time and place, the acts of omission and commission relied upon as constituting negligence may be succinctly summarized as follows. (1) A failure to comply with a rule of the company requiring a white light on the front of the rear car of a backing train; (2) the illegal and rapid rate'of speed of the backing train which frightened the horse; (3) the failure of the company to warn the plaintiff that the train was approaching on the track near the parallel highway over which he was traveling with his wife, the time being at night’ and the plaintiff not being able to discern, on account of the straightness of the track and its parallel relation to the highway, from where he was to the depot, where the train was, — whether it was moving from or towards him; and the place where plaintiff was driving being on a public road in a town, near to the track, and over which it was to be reasonably expected that numbers of people would be traveling. For these reasons- it is alleged that ordinary diligence required the defendant to run its trains slowly, to use the white light at the front of the rear ear of the backing train, and to give warning signals and keep a lookout for people who might be on this near-by parallel public road.

Do these allegations set forth a cause of action against the defendant company? The test of liability is the existence of some duty, and the proof of liability is the breach of this duty; and both the duty and the breach must be alleged and proved by the plaintiff. Failure to discharge a duty to the plaintiff, and resulting injury to him, are indispensable elements of actionable negligence. As Mr. Justice Lumpkin expresses it, “Relatively to one to whom no diligence whatever is due, there can, in legal contemplation, be no negligence at all in causing him a personal injury, and the measure of diligence due by a railroad company to any person is a relative one, and what is or is not due diligence must be arrived at in every case with reference to the surrounding circumstances and the relation which, for the time being, the company and the person in question occupied towards each other/’ Holland v. Sparks, 92 Ga. 753, 756, 18 S. E. 990. So the fundamental question in this case is, what duty of diligence did the company owe to the plaintiff at the time and place of the injury? This question must be resolved solely from the allegations of the petition.

It is alleged that the company was negligent in that it violated the.following rule of the company: “When cars are pushed by an engine (except when shifting or making up trains in the yard) a white light must be displayed on the front of the leading car at night.” It is claimed that the violation of this rule was negligence as to the plaintiff, because the failure to use the white light on the front of the rear car of the backing train prevented him from discovering that the train was backing towards him, so that he could have been upon his guard and gotten out of the buggy and avoided the danger. It is not alleged that the rule was applicable to the facts of the case, or that the cars pushed by the engine were not within the exception to the rule. Indeed it is fairly inferable from the petition that the engine was shifting the cars and making up the train at or near the depot. Besides, it is distinctly alleged that the proximate cause of the injury was the-fright of the horse, and that the horse became frightened at the rapid rate of speed of the train. The failure to have the light was therefore not. negligence causing the injury, if negligence at all. The allegation that the light would have enabled the plaintiff to avoid the injury is remote and conjectural.

It is next alleged that the “train approached said crossing at a rapid rate of speed, without ringing the bell, or blowing tho whistle, or giving any warning, thereby frightening' the horse and causing him to become unmanageable.” Eliminating from this statement any applicability to the public crossing statute, in accordance with the allegations of the petition as amended and the declaration of counsel for defendant in error, we have the situation -presented, upon which negligence is based, of a traveler on a public highway, near the railroad, whose horse is frightened by- the rapid speed of the train. Of course the negative statement that this illegal and rapid -speed was unaccompanied by the blowing of the whistle or the ringing of the bell was not intended as matter of aggravation. The failure to do these things, reasonably considered, diminished the peril of the situation. Therefore the only pertinent and illustrative allegation of negligence is the rapid rate of speed of the train, which frightened the horse on the adjacent highway. An allegation of negligence in respect to the speed of the train can only be material where the law imposes some duty upon the railroad company to regulate its speed in reference to the place where the train is operated. There is no allegation here that the speed of the train was contrary to any public law, State or municipal. As to a traveler on a highway who did not intend to cross the track, there was no duty imposed upon the railroad company as to the speed of the train. There is no allegation of any unusual and unnecessary noise caused by the running of the train; and so far as this court is advised, the railroad company had the right to run its train on its track at the time and place and with reference to the traveler on the highway, regardless of speed.

The allegation “that the close proximity of the train and the rapid and illegal rate of speed at which it was running made it impossible for the plaintiff or his wife to get out of the buggy in time to avoid injury” does not alter the case. It would be impossible for a railroad company to run its trains in such a manner as to allow travelers on an adjacent highway to get out of vehicles, il horses indicated fright at the approach of trains, and the law-does not impose upon railroad companies such an onerous burden or impracticable duty. Fright of horses caused by running trains is one of the necessary risks which travelers on the highways take. Injuries resulting from horses becoming frightened by the appearance of railway cars, trains, or locomotives, or the usual noise incident to their ordinary operation, are damnum absque injuria. Dewey v. Chicago, M. & St. P. Ry. Co. 99 Wis. 455, 75 N. W. 74. “A railroad company is not liable for injuries resulting from horses becoming frightened on the highways at the mere sight of its trains or the noises necessarily incident to the running of trains or the operation of the road.” 3 Elliott on Railroads, § 1264; 2 Thompson on Negligence, § 1908.

The plaintiff alleges that on account -of the location of the track with reference to the public road and the impossibility for himself or his wife to look down towards the depot where the train was standing or being operated, and to tell whether it was moving towards them, it was the duty of-the company, in operating at this point and along this track, to use such care and diligence that its employees would be able to stop the train, if-at any time it should appear that travelers and teams were in danger by the ■operation of its trains; and that such care and diligence required that a railroad company should notify the travelers on the highway of the approach, either by a light, or the ringing of the bell, or having an employee on the front end of the rear car, for the purpose of detecting clanger to travelers and avoiding injury to them. In our opinion, railroad companies owe no such degree of diligence to travelers on adjacent highways. The railroad companies have as much right to use their tracks as travelers have to use the highway. It is the duty of travelers on adjacent and near-by public roads to keep a lookout for approaching trains, and to guard against injuries resulting from horses becoming frightened. The traveler is in a much better position to prevent dangerous consequences from frightened horses that the railroads are to prevent the fright of horses. That horses on highways will-become frightened at the cars can not be foreseen or prevented by those in charge of running trains. Travelers have such knowledge and such power in the exercise of proper diligence. The law simply imposes upon railroad companies the duty of operating trains relatively to adjacent highways so as not unnecessarily to interfere with the rights of individuals traveling such highways, or to endanger such travelers by unusual and unnecessary noises. The duty of keeping a lookout and of giving warning is limited to the track and the public crossing. It does not extend to travelers on adjacent highways. “A statute which requires railroad companies to give a warning signal of the approach of trains to their crossings of the road or street imposes no duty to give such warning to those who have not lately used, who are not using, and who do not intend to use the crossing; and such parties can not recover of the railroad companies for a failure to give the warning. This record does not tend to prove any negligence on the part of the railroad company. The fact that it failed to give the statutory signal for a crossing is the only evidence of its negligence. It- owed no duty‘to ring its bell or sound its whistle because the plaintiff was driving along the public ro.ad, unless that duty was imposed upon it by this statute. In the absence of a statute, it had as much right to use its railroad for its trains, without notice to the plaintiff, as the plaintiff had to use the public road without notice to it.” Reynolds v. Great Northern Ry. Co. (C. C. A. 8th ct.), 69 Fed. 808, 16 C. C. A. 435, 39 L. R. A. 695. "The railway company owes to a workman in an adjacent field, to a domestic in a neighboring house, or to a traveler on a parallel road, who has not crossed and does not, intend to cross or enter upon the-railroad,'no duty to signal the approach of its train.” 69 Fed., supra; Carrington v. L. & N. Ry. Co., 88 Ala. 472, 6 So. 910. It is well settled that no negligence can be imputed to a railroad for failure to give warning of approaching trains by reason of the close proximity and paralleling of its right of way to the public-thoroughfare. Favor v. Boston & Lowell R. Co., 114 Mass. 350, 19 Am. R. 364; Melton v. St. Louis Ry. Co., 99 Mo. App. 282, 73 S. W. 232; Bailey v. Hartford R. Co., 56 Conn. 444, 16 Atl. 234; Lamb v. Old Colony R. Co., 140 Mass. 79, 2 N. E. Rep. 932, 54 Am. R. 449. While we do not think the law imposes upon railroad companies the duty of keeping a lookout or of giving warning to travelers on an adjacent highway of the approach of trains, yet when danger to such traveler is discovered, it then becomes a duty to use care to avert an injury, such care as the then, situation would make it practical and possible for the railroad in the proper conduct of its business to use. L. & N. R. Co. v. Smith, 107 Ky. 178, 53 S. W. 269; Lamb v. R. Co., 140 Mass. 79, 2 N. E. 932; Ala. Great Southern Ry. Co. v. Fulton (Ala.), 39 Sc. 282; L. & N. R. Co. v. Schmidt (Ind.), 33 N. E. 774.

In the case now under consideration, the sole allegation of negligence causing the injury is that the running of the train at such a rapid rate of speed caused the fright of the horse. It has been repeatedly held, not only by the Supreme Court of this State, but in many other jurisdictions, that railway companies were not liable for the fright of horses, and injuries resulting therefrom, caused by the running of engines, cars, or trains, unless such running was accompanied by unusual and unnecessary noises. The uniform ruling of the courts on this question is tersely expressed by the decision of the Supreme Court of Pennsylvania in Yingst v. Lebanon Street Ry. Co., 167 Pa. St. 438, 31 Atl. 687: "As the right of the defendant company to run its cars on its track is fully equal to the right of the plaintiff to ride in a wagon on the street, the mere fact that the horse took fright at the sight of the cars confers no right of action whatever against the defendant.” And in the case of Douglas v. Ry. Co., 88 Ga. 282, 14 S. E. 616, the Supreme Court says: “Where the proximate cause-of an injury received by a person from a plunging horse which 'took fright at an approaching train, was the noise made by the emission of steam by the engine of the train, the railroad company will not be liable in damages to the person so injured unless it appears that the noise was unusual or unnecessary at the time when and place where it was made.”

We 'therefore hold that the allegations of the petition as. amended did not set out any facts indicating that the railroad company was chargeable with actionable negligence causing the injury to the plaintiff’s wife; and the court should have sustained the demurrer. Judgment reversed.


text:
    315.
    Pylant v. Webb.
    Certiorari, from Gwinnett superior court — Judge Brand. September 6, 1906.
    Submitted May 6,
    Decided June 20, 1907.

      F. F. Julian, M. D. Irwin, for plaintiff.

      N. L. Hutchins, Jr., for defendant.
   Hill, C. J.

1. A rented to B certain land for $40, upon which to make a crop. After planting his crop B was taken sick. C paid B $25 for his crop and agreed to pay A the $40 rent. A consented to the substitution and accepted C as his tenant. Eeld, that the agreement of C to pay A the $40 rent is an original undertaking, and is not required to he in writing, under the statute of frauds. Cuesta v. Goldsmith, 1 Ga. App. 48; Evans v. Griffin, Id. 327, 57 S. E. 983, 921.

2. The evidence in this ease demanding the verdict rendered in the justice court, the judgment of the superior court on certiorari, granting a new trial, was erroneous. Judgment reversed.


text:
    321, 322.
    ROBERTS v. DOCKINS (two cases).
    1. In case No. 321 the pleadings and evidence contained in the record do net warrant the verdict rendered.
    2. In case No. 322 the pleadings and evidence do .warrant the verdict, and no error appears.
    Appeal, from Rabun superior court — Judge Kimsey. December 11, 1906.
    Submitted May 7,
    Decided June 20, 1907.

      J. R. Grant, J. C. Edwards, McMillan & Erwin, for plaintiff in error. W. S. Paris, contra.
   Powell, J.

The two actions commenced in the justice’s court and came to the superior court by appeal. The original. summonses were identical, both being in the usual form and requiring the defendant to appear to answer a complaint “in an action upon two promissory notes dated Dec. 25, 1894, for fifty'dollars principal each, a copy of which said notes is hereto attached.” Each summons had attached, without explanation, not two notes, but four notes, for fifty dollars each, all dated Dec. 25, 1894, and maturing consecutively on the 25th day of December of each of the years from 1896 to 1899 inclusive. Certain identical small ■credits, aggregating less than fifty dollars, were entered after the •copies of the notes in each case. In case No. 322, in the superior court the plaintiff made an amendment to his summons, and therein stated that the two notes sued on in this case were the notes maturing in the years 1898 and 1899; but the clerk certifies that no amendment was filed in case No. 321, though in the bill of exceptions an amendment to the summons is specified as a part •of the record. It appears from a note by the trial judge, attached-to the brief of the evidence, that all of these notes were written ■on one sheet of paper and constituted one transaction, and were all introduced in evidence in both cases. In case No. 321, in the brief of the evidence is the following explanation: “Plaintiff’s attorney stated that they were only suing on the note maturing Dec. 25, 1899, and that the other three were only offered to show the land transaction, three being on the same sheet of paper.” In case No. 322, in the brief of the evidence the same language appears, except that the words “Dec. 25, 1898” are used instead of the words “Dec. 25, 1899.” The only evidence introduced was the four notes. In case No. 321 the court directed a verdict for $71.26; in ease No. 322 for $100. There are in the record several -assignments of error; but except as herein indicated, none of them are meritorious.

In case No. 321, since four notes were attached to the summons, and there wa’s nothing in the pleadings to identify which two were being sued upon, the court erred in directing a verdict for the sum of $71.26; especially so in the light of the fact that -although all four of the notes were introduced, only one of them, according to statement of plaintiff’s counsel, was relied upon. YTe might, in order to give a reasonable intendment to the action of the court, disregard the statement of counsel; but if we do so, there-is nothing in the record by which the verdict can be supported. A single note would not justify the amount found; all four of the-notes would prove a case for more than one hundred dollars, which would be beyond jurisdiction of the court, the ease being an appeal.

In case No. 322 the amendment did identify the two notes sued on; and since these two notes were in evidence, we sustain the-action of the court in this case.

Judgment reversed in 321, and affirmed in 322.


author: Russell, J.

text:
    327.
    CAVENDER v. ATKINS.
    There is no abuse, of discretion in refusing a continuance upon the ground' of the absence of a party to a cause, where it is not made to appear-that such party is at ihe time of the trial unable to be present.
    Certiorari, from Chattooga superior court — Judge Wright. September 15, 1906.
    Argued May 6,
    Decided June 20, 1907.

      Taylor & Jolly, McHenry & Porter, for plaintiff in error.

      F. W. Copeland, J. M. Bellah, contra.
   Russell, J.

The defendant in error caused to be issued against-the plaintiff in error an attachment, upon the ground that he was-not a resident of the State of Georgia, which was returned to the justice’s court of the 962d district, to the February term, held February 4, 1905. Prior to the court day the plaintiff in error spoke to the justice of the peace about a continuance of the case, in order that he might attend the superior court of Murray county. Dpon his return to his home in Chattanooga, Tenn., he inclosed, the following certificate in the letter which follows:

“Mr. J. W. Cavender is ill with la grippe, and unable to attend to business. C. Holtzclaw, M. D.
“State of Tennessee, County of Hamilton.
“Sworn to and subscribed .before me this the 1st day of 'February, 1905. W. S. Weitzell, N. P. [Seal.]”
“Chattanooga, Tenn., Feb. 1st, 1905.
“Esquire Geo. O. Bamsey, Subligna, Ga.
“Dear Sir: I returned home sick, and, as I am not able to come down Saturday, I send you my doctor’s affidavit, which is proper-showing for 3>ou to continue the case. Hope the continuing of it won’t disconcert any one. I am sorry I am not able to come.
“Your friend, J. W. Cavender.”

Upon this showing the judge, in the exercise of his discretion, refused to continue the case and rendered judgment in favor of the plaintiff. As appears from the answer of the justice, no plea had been filed in the case, and no point is made that evidence sufficient to authorize the judgment was not adduced. The defendant carried the case to the superior court by certiorari, where the petition was dismissed; and exception is taken to the judgment dismissing the certiorari.

The onty question in the case is whether the justice of the peace .abused his discretion in refusing a continuance of thei case upon the showing made. We agree with the judge of the superior court in holding that the magistrate was not required to continue the ■case upon the showing presented. The certificate of the physician purported to give the condition of the party on February 1st. The court did not sit until Februar3r 4th, and the .certificate contained no statement which could inform the court as to the duration of the movant’s illness, or from which the court could absolutely infer that the movant’s ailment would continue until the •day upon which court was to be held. We think every facility should be afforded each and every party in every case for fairly presenting his side of the issue, and that the law of continuance should be given a liberal construction; but we are not prepared to say that the trial judge in this case abused the discretion with. which he is vested by law. The mere absence of a party has nowhere been held to be of itself enough to authorize the continuance of the case. A meritorious reason existing at the time of the trial, which prevents his presence, must be made to appear; .and it should further be shown that the presence of the party would be likely to cause a different.result from that obtained, before the judgment should be set aside and a new trial ordered. “The law’s delay” is one of the most serious impediments in the administration of substantial justice in the courts. We do not mean to say that in any case there should be unseemly, undue, or unjust haste; but hope deferred makes the heart sick, and many a case is killed by continuance.

Though constrained to affirm the judgment in this case, for the reason that the showing made did not require a continuance, because it did not cover the date of the trial, this judgment is not to preclude or prevent the plaintiff in error from proceeding by equitable petition to have the judgment rendered set aside, if as a matter of fact he has a meritorious defense and was really physically unable on the day of trial to attend court. The judgment is affirmed, with direction that this judgment shall not operate to ^prejudice the right of plaintiff in error to proceed accordingly.

Judgment affirmed, with direction.


text:
    348.
    WORTH COUNTY v. SYKES.
    A county is not liable to the county treasurer for commissions upon a fund which he never handled, and which was raised by private donation and ' deposited with the ordinary, with the conditions imposed that the ordinary should personally disburse it in buying a lot and in paying other expenses in the erection of a public building for the county, and that he should not pay it into the county treasury.
    Complaint, from city court of Sylvester — Judge Park. September 1, 1906.
    Argued May 14,
    Decided June 20, 1907.

      J. H. Tipton, for plaintiff in error. Polhill & Foy, contra.
   Powell, J.

To influence the removal of the county seat of Worth •county from Isabella to Sylvester, citizens of the latter community agreed in public advertisement to erect a new court-house and a jail in the event of such removal, and as a guaranty of good faith ■deposited with the ordinary of the county certified checks for $10,-■C00. The removal was duly authorized. Afterwards the ordinary, -acting for the county, decided that it would be wise to erect buildings more commodious than those originally planned, and costing more than $10,000. It was thereupon agreed between the ordinary and the committee representing the citizens of Sylvester that •out of the fund deposited the ordinary should buy lots for the ■court-house and the jail, and use the remainder in paying, as far •as it would go, other necessary expenses incident to removing the ■old offices and erecting the new buildings; but it was stipulated, in order to avoid charges for handling the fund, that the same should be disbursed by the ordinary directly, and should not be handled through the county treasury. There was a condition in the original offer that all expenses of an election contest should first he paid out of the sum above mentioned; and these expenses,, amounting to $1,310, were retained before the money was turned’ over to the ordinary. Out of the fund which went into his hands the ordinary bought lots for the court-house and the jail, and used, the remainder of the money, with the exception of about $2,000, in paying the architect’s fee and similar bills. Before the sum' of $2,000, just referred to, was expended, the ordinary decided to remove from the county; and, with the consent of the committee, he paid that amount into the county treasury. After the funds came into the hands of the ordinaria the county treasurer demanded that they be paid into the treasury.- Except to the extent indicated above, this demand was refused. Thereupon the treasurer sued for his commissions on the money and recovered judgment for commissions on the full amount, less the sum retained, for expenses of the contest and the $2,000 which had been paid over to-him.

In the argument of the case many nice questions were ably presented. We do not deem it necessary to enter at length upon a. discussion of them; for, after full consideration of them all, we think that the case finally turns upon the points herein decided.' While by the Political Code, §458, “All county funds are to-be paid to and disbursed by the county treasurer, except such as may be specially excepted by law, and then to be collected and disbursed as specially directed,” and while by the Political Code, §460, it is the dirty of that officer “to diligently collect from all officers and others all county dues,” yet we do not think that the-fund in controversy was a county fund in the sense used in the statute; nor do we think that the treasurer had the right to demand of the ordinary custody of the same. We concede that the citizens of Sylvester might have made a donation of money to the-county funds of the county (indeed, such seems to have been the result when, with their consent, the ordinary paid the $2,000 into the county treasury); and in that event such money would pass beyond the control of the donors and become subject to the sole control of the county authorities. On the other hand, there was no obstacle to prevent their making a donation on the condition that the money should not become conn tv funds, but should be so-invested that it should pass into the custody of the county in the shape of property, and not of cash. The ordinary did not hold the money m this case as the agent of the county as a corporation, but as the agent of the donors; the fund possibly being impressed with an implied trust in favor of the citizens of the county, who are in legal contemplation a different entity from the county as a corporation. Compare Justices v. Plank Road Co., 9 Ga. 485, 486. The treasurer could not have successfully demanded this fund from the committee of citizens; nor did he have the right to demand it from their agent, the ordinary, although this agency may have been lodged in the same person in Avhom officially was Arested jurisdiction in county matters. If he had demanded the fund of the ordinary, it would have been a complete reply on the latter’s part that he had been forbidden to deliver if by the very terms of the conditions on which it came into his hands. Unless the treasurer had a right to demand the fund, his claim to commissions must be unsuccessful. Wood v. Commissioners, 60 Ga. 556; City of Baxley v. Holton, 114 Ga. 724, 40 S. E. 728; Board of Roads v. Clark, 117 Ga. 291, 43 S. E. 722. The county treasurer is not entitled to commissions on anything but money. His bond is not responsible for anything else. The county receives and takes other property without his intervention. The donation in this case, AA'hen it came finally into the custody of the county, came as property, not as cash; hence the claim for commissions should have been denied.

It is true that there is in the record an official order of the ordinary, sitting for county purposes, in Avhieh it is recited that he accepts the cash deposited with him in lieu of the former proposition of the citizens to erect the buildings; but other récitals in the same order restrict the meaning of the language so used, and it is clear from the parol proof that, even at the time of the passage of this order, the former agreement that the donation Should come finally into the custody of the county in the form of specifics bought Avith the money, and not of cash, was never abrogated. The trial judge held that this parol evidence had no probative value; that it could not vary the recitals of the order. In this he erred. This order was not such a contract as created an estoppel against the truth being shown in variance or explanation thereof. Besides, the treasurer could not make this question, as he aahs not a party to the agreement. The ordinary could not make the county liable for commissions on a fund which he had not in fact received as a county fund, no matter how solemnly he may have asserted he had so received it. If the recitals of fact of the ordinary in his order are to be taken as meaning that he had received an unconditional donation in cash, in the light of the record such statement was not the truth of the transaction; and the treasurer must recover from the county upon the truth of the transaction, and not otherwise. Judgment reversed.


text:
      352.

    Livingston & Stewart v. King.
    Appeal, from Worth superior court — Judge Spence. December 13, 1906.
    Argued May 14,
    Decided June 20, 1907.

      Payton & Hay, for plaintiffs in error.

      Passmore & Tison, J. H. Tipton, contra.
   Hill, C. J.

1. Where an appeal is entered by a firm from a judgment in

a justice’s court to a jury in the superior court, and no appeal bond is given, but the individual members of the firm make affidavit that each member of said firm separately, “owing to his poverty, is unable to give the security required by law,” there is no error in dismissing the appeal on the ground that the affidavit does not show that the firm, is unable to give the bond required by law. Marlow v. Hughes Lumber Co., 92 Ga. 554, 17 S. E. 922; Kline v. Swift Specific Company, 118 Ga. 514, 45 S. E. 314.

2. The defect, being apparent on the face of the pleadings, could properly be taken advantage of by oral motion. It is only where the powers of the court are invoked touching matters that lie outside the pleadings that a written application or motion is required. Civil Code, § 5046; Smith v. Equitable Mortgage Co., 98 Ga. 240, 25 S. E. 423; McCook v. Crawford, 114 Ga. 337, 40 S. E. 225.

Judgment affirmed.


text:
    357.
    TAYLOR v. CHAMBERS.
    1. Communications which would otherwise be slanderous are protected as privileged, if made in good faith by the injured person in the prosecution of an inquiry regarding a crime which he believes to have been committed upon his property, and for the purpose of detecting the criminal or bringing him to punishment.

      2. A petition may be amplified by amendment. Such an amendment, voluntarily made, may cure errors previously committed by tbe court in the amending party’s favor as to the original sufficiency of the pleadings.
    3. A partial plea of justification will not entitle the defendant in a slander suit to open and conclude.
    Action of slander, from city court of Nashville — Judge Peeples. October 6, 1906.
    Submitted May 14,
    Decided June 20, 1907.

      Buie & Knight, for plaintiff in error.

      J. W. Powell, W. G. Harrison, Alexander & Gary, contra.
   Powell, J.

An action for slander was brought by Chambers against Taylor. The petition as amended alleged, in substance, that the defendant had said to H. W. Griffin, Samuel Long, J. D. Hutchinson, J. F. Robinson, W. W. Byrd, W. F. Matthis, Joel W. Parrish, Willie Lassiter and Eddie Lassiter, that the plaintiff had burned a certain house of the defendant, thereby intending, falsely and maliciously, to impute to the plaintiff a felony, the crime of arson. In the fourth paragraph it is alleged that the defendant also tried to hire Long to swear that the plaintiff confessed the crime. In the sixth paragraph it is alleged that on the preliminary trial at which the plaintiff stood charged with this offense, the defendant, under oath, publicly proclaimed that the plaintiff had burned the house. In the seventh paragraph it is alleged that the defendant attempted to indict the plaintiff before the grand jury for the offense, but failed. The defendant denied all the allegations of the petition, but set up additionally: “that it is true that in December, 1904, one of his houses, out of which plaintiff liad just moved, was mysteriously burned, and all the circumstances pointed toward plaintiff being the perpetrator of the deed; that in good faith and in performance of a private and public duty he made affidavit and had plaintiff arrested for committing said act; that all words spoken by him were in furtherance of .the belief, from facts and circumstances known, that plaintiff committed the act, and not from a wanton and malicious mind on the part of defendant; and although a committal court did not find plaintiff guilty, the facts and circumstances surrounding the whole transaction point strongly to his being the perpetrator; that defendant has never since said committal trial attempted to push in any manner such charge against plaintiff, preferring to let the matter drop against him, merely from his own choice, and not from a belief of the innocence of plaintiff.” The defendant also- demurred generally and specially; but we do not deem it profitable to report the grounds herein. There was no evidence as to the communication of the alleged slander to any of the persons named in the petition, except H. W. Griffin; Ed. Lassiter, and Will Lassiter. After swearing out a warrant against Chambers, charging him with arson, Taylor, in pursuance to directions from the magistrate, went to Griffin, on whose place Chambers was living at the time of the fire, and told him that the house had been burned, and that he desired to get the man who did it; that from circumstances he was led to believe that Chambers was the guilty person; and that, desiring to prove Chambers’ whereabouts on the night in question, he had come to him (Griffin) for information as to that fact. Ed. Lassiter was the person who discovered that the house was on fire; and he having expressed the belief that Chambers had burned the house, the defendant, in discussing the matter, agreed with him. Will Lassiter was also a witness to material circumstances in connection with the criminal prosecution, and, -in discussing the case with him, the defendant expressed the belief that Chambers was guilty. There was no evidence supporting the other allegations of the petition. Taylor testified to a state of facts indicating utmost good faith in his discussing with the witnesses the plaintiff’s suspected connection with the burning of the house. The jury returned a verdict' for $300 in favor of the plaintiff.

“Any person may speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.” Const., art. 1, par. 15 (Civil Code, § 5712). It is not an abuse of this liberty for one who has had his property burned, and who suspects another of having set it on fire, to institute a criminal proceeding against the latter, and, in connection therewith and in the preparation of the ease, to make bona fide statements of his suspicions, and grounds of suspicion to third persons, who would likely possess evidence as to the guilt or innocence of the accused, with the view of ascertaining how far their knowledge and information would corroborate or weaken the charge made; and this is true whether the suspicions, if bona fide entertained, were well founded or not. Such communications are privileged, and, if not malicionsly made, are not actionable. In a slander suit based upon such communications malice is not presumed, and the burden of showing the same is upon the plaintiff. These principles are well recognized; and from an abundance of authority we cite only the following. Civil Code, § 3840; Ventrees v. Rosser, 73 Ga. 539; Newell on Slander and Libel (2d ed.), 500, §§ 98-100; Id. 478, § 68.

In regard to rulings upon the pleadings in the trial court: The amendments made to the petition cured any error committed in overruling ’ the demurrers, except as follows: the demurrer to the latter portion of the fourth paragraph of the petition should have been sustained-; likewise the demurrer to the sixth and seventh paragraphs. Tl;o defendant’s plea, not admitting thei use of the words charged in the manner alleged, was not such a plea of justification as to give the defendant the right to open and conclude. There was no error in allowing the petition to be made more specific by amendment.

Judgment reversed.


text:
    436.
    JOHNSON v. THE STATE.
    1. Failure to serve the solicitor-general with a notice of the sanction of a petition. for certiorari in a criminal ease within the time prescribed by law, except in case of “unavoidable cause” preventing such service, is ground for dismissal.
    2. Whore several months elapse between the date of the death of counsel for the plaintiff in certiorari and the expiration of the. time within which the notice could regularly have been given, such death will not be considered as unavoidable cause.
    Certiorari, from Quitman superior court — Judge Worrill. March 14, 1907.
    Submitted May 27,
    Decided June 20, 1907.

      Raines & Gurr, for plaintiff in error. J. A. Laing, solicitor-general, R. R. Arnold, J. B. Ridley, contra.
   Powell, J.

The accused was convicted of the offense of cheating and swindling under the act of 1903. Ga. Laws 1903, p. 90. Under decisions of this court and of the Supremo Court, he was not guilty, because he was a minor and was prevented from'performing his contract by parental authority. See Heywood v. State, 1 Ga. App. 530, 57 S. E. 1025; Mulkey v. State, 1 Ga. App. 521, 57 S. E. 1022; Patterson v. State, 1 Ga. App. 782, 58 S. E. 284; Howard v. State, 126 Ga. 538, 55 S. E. 239; Anthony v. State, 126 Ga. 632, 55 S. E. 479 (2). We regret, therefore, that the result of our judgment herein must he to leave in force the punishment imposed. However, we can not look to the merits when they have not been presented in the manner prescribed by the statutes. In criminal matters, we have no extraordinary or equitable jurisdiction, whereby we may relieve an innocent defendant who, through his negligence, has been' caught in the meshes of legal technicalities. Chancery jurisdiction in criminal cases, if this figure of speech be allowable, is conferred upon the Governor and the prison commission, and not upon the courts.

The judge of the superior court dismissed the certiorari brought by the accused to set aside the illegal conviction, and this judgment we must affirm. The conviction was had. in the county court, petition for certiorari was duly presented, sanctioned and filed, and the writ was issued and answered. Upon the call of the case on the certiorari docket, the solicitor-general moved to dismiss, because the notice of the sanction and of the time and place of hearing, required by Civil Code, § 4644, had not been given. It was shown to the court that in August, 1906, soon after the sanction of the certiorari, counsel for the applicant became ill and died. The writ was returnable to the March term, 1907, and at that term the present counsel were employed. They could not say whether the notice had been given or not. The solicitor-general 'stated that he had no recollection of ever having received the notice.

The burden of showing service of the: notice was upon the plaintiff in certiorari; and the showing made did not establish the fact. Jones v. Gill, 121 Ga. 93, 48 S. E. 688. Failure of service, unless prevented by providential cause, is fatal. See Butts v. State, 90 Ga. 450, 16 S. E. 96; Moore v. State, 96 Ga. 309, 22 S. E. 960; McElhannon v. State, 112 Ga. 221, 37 S. E. 402. The statute says that “in default of such notice (unless prevented by unavoidable cause) the certiorari shall be dismissed.” “Unavoidable cause” means more than “excusable negligence,” and relieves against the default only when prompt measures are thereafter taken. Southern Railway Co. v. Carr, 118 Ga. 355, 45 S. E. 409. Sickness or death of counsel for the applicant are primarily to be classed as unavoidable cause; so, also, would be the death or absence of the solicitor-general in a criminal case; but the service must be prevented by this cause, and not by the applicant’s neglect to take prompt measures after such cause has been ascertained and can be relieved against. In this case counsel for the applicant died i.n August or September, 1906. The time for service did-not expire until March, 1907. Hence the failure to serve must be attributed to negligence, and not to unavoidable cause.

Judgment affirmed.


text:
    475.
    RODGERS v. THE STATE.
    If the answer to the certiorari in a criminal ease does not verify the fact. that there has been a conviction, or final judgment, neither the superior-court nor this court can pass upon the errors assigned in the petition.
    Certiorari, from Fulton superior court — Judge Pendleton. April 10, 1907.
    Argued May 27,
    Decided June 20, 1907.

      Moore & Moore, for plaintiff in error.

      C. D. Hill, solicitor-general, contra.
   Powell, J.

If we could properly pass upon the merits of the' case we would unhesitatingly grant a new trial; the evidence was clearly insufficient to support a conviction. See, in this connection, Johnson v. State, ante, 182, 58 S. E. 265. However, so far as this court can judicially know, the defendant has never been convicted. This court, as well as the superior court, must in certiorari cases look exclusively to the answer for such information. The answer is wholly silent as to the jurisdictional fact that there has been a final verdict or judgment in the trial court. The applicant for certiorari should have made exceptions to the answer; but he failed to do so. This is fatal. This proposition is too plainly and definitely established to allow the slightest judicial evasion of it, even though the defendant be innocent. Manning v. Gainesville, 125 Ga. 239, 53 S. E. 1002; Colbert v. State, 118 Ga. 305, 45 S. E. 403; Little v. Fort Valley, 123 Ga. 503, 51 S. E. 501; Landrum v. Moss, 1 Ga. App. 216, 57 S. E. 965.

Judgment affirmed.


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    474.
    Rouse v. The State.
   Russell, J.

1. In tlio exercise of tlie right of questioning witnesses, a presiding judge should not, by the form or manner of his examination, intimate any opinion upon the facts. Sharpton v. State, 1 Ga. App. 542, 57 S. E. 929.

2. “In charging upon the prisoner’s statement, a trial judge can employ no better language than that embodied in the Penal Code, § 1010.” Fields v. State, 2 Ga. App. 41, 58 S. E. 327.

3. “The office, of a charge by the court is to give to the jury such instruction touching the rules of law pertinent to the issue involved in the pending trial, as will enable them ‘ intelligently to apply thereto the evidence submitted, and from the two constituents law and fact make a verdict. In delivering his charge the trial judge, should carefully avoid an invasion of the province of the jury. Ho should refer to the evidence only so far as is necessary to present the leading issues in the cause, leaving the minor contentions of opposing counsel to the. consideration of the jury under appropriate general instructions. It should contain no such summary of the evidence as might to a jury either seem io J>e an argument or amount to the expression or intimation of an opinion thereon. It is therefore error . . . for the presiding judge to repeat the substance of the testimony of the State’s witnesses as detailed from the stand, and submit this with the argumentative deductions drawn therefrom by the State’s counsel, as the issues in the. ease.” Thomas v. State, 95 Ga. 484 (3), 22 S. E. 315.

4. In all cases, in stating the contentions of the parties, the contention of each should be alike fairly stated, and, if a statement of the contention or position of a party be attempted, it must he correctly given.

5. The trial judge, in stating the contentions of a party, should not so mix and mingle such contentions with the inferences and deductions favorable to such party as to present such contentions to the jury in the form cf an argument; and this is especially erroneous where the contentions of the opposite party are more meagerly presented or incorrcdtly stated.

6. “In the courts of this State juries, and not judges, sum up the evidence.” McVicker v. Conkle, 96 Ga. 597, 24 S. E. 28. The judge should not, in his charge, review in detail each fact and circumstance in testimony in such a way as tends to impress the jury that the testimony has established the contention of one of the'parties, or that certain testimony is entitled to more weight than other; and to so particularize and argumentatively enforce upon the jury various inferences which may arise from the evidence is an intimation of opinion forbidden by the Civil Code, § 4334; and the error is not diminished by the use of such expressions as “the State insists,” “it is contended,” etc. Suddeth v. State, 112 Ga. 409 (3), 37 S. E. 747.

7. While it is not incumbent on a trial judge (in the absence of a written request) to charge the law as to impeachment of witnesses, still, where the subject is referred to in the charge, proper and adequate instructions thereon should be given. Where reference is made in the charge to subjects upon which by law no charge is necessary without request, the jury should be pi'Operly instructed on the subjects thus referred to.

Indictment for adultery and fornication, from Worth superior court — Judge Spence. April 24, 1907.

Argued May 27,

Decided June 20, 1907.

Payton & Hay, for plaintiff in error.

W. E. Wooten, solicitor-general, contra.

Judgment reversed.


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    476.
    CRAWFORD v. THE STATE.
    The accusation in this case does not allege facts constituting a criminal offense, and the demurrer thereto should have been sustained.
    Certiorari, from Fulton superior court — Judge Pendleton. April 10, 1907.
    Argued May 27,
    Decided June 20, 1907.

      C. B. Rosser Jr., for plaintiff in error. C. D. Hill, solicitor-general, Lowry Arnold, R. B. Blackburn, contra.
   Hill, C. J.

Crawford was charged, by an accusation in the criminal court of Atlanta, with a violation of section 670 of the Penal Code. This section is in the following language: “Any person using any deceitful means or artful practice, other than those which are mentioned in this code, by which an individual, or the public, is defrauded and cheáted, shall be punished as for a misdemeanor.” The accusation, describing specifically the deceitful means and artful practice used by the defendant, is in these words: “State of Georgia, Fulton County. I, C. S. King, in the name and behalf of the citizens of Georgia,, charge and accuse F. B. Crawford, of the county and State aforesaid, with the offense of misdemeanor, for that the said F. B. Crawford, in the county aforesaid, on the 19th day of October, 1905, did, by deceitful means and artful practice, cheat and defraud the Stephen A. Ryan Co., a corporation duly Incorporated under and by virtue of the laws of the county of Fulton and State of Georgia, out of the sum of $10.00, in lawful currency of the TJnited States, in that on the 19th clay of October, 1905, the said F. B. Crawford did represent unto G. S. King, who was agent for the said Stephen A. Ryan Co., the corporation aforesaid, that he was in the employ of the Western & Atlantic Railroad Company, and that the said Western & Atlantic Railroad Company was dne him for wages earned for the-month of October, 1905, more than the amount of $11.00, and that there were no judgments, attachments, or orders against his salary; that said representations were made for the purpose of inducing C. S. King, agent for the said Stephen A. Ryan Co., to purchase from the said F. B. Crawford his salary account while in the employ of the said Western & Atlantic Railroad Company earned for the month 'of October, 1905, to the extant of $11.00, and that the said C. S. King, agent for the Stephen A. Ryan Co., believing that said representations were true, and acting upon the faith of the same, purchased from F. B. Crawford his salary account while in the employ of the Western & Atlantic Railroad Company, earned for the month of October, 1905, to the-extent of $11.00 and paid to him on said date, October 19, 1905,, the sum of'$10.00, and took from the said F. B. Crawford an assignment of his salary account of his wages earned while in the employ of the Western & Atlantic Railroad Company for the month of October, 1905, in words and language as follows: ‘Atlanta, Ga.,. Oct. 19th, 1905. For value received, I this day assign to Stephen A. Ryan Co. $11.00 of my salary earned for the month of October,, which pay him. In order to obtain the above amount of money, and make this salary sale, I state that I am employed regularly by the firm, corporation, or party, to whom this is directed, and that they are indebted to me more than the above amount for-salary, for month named, and there are no garnishments, attachments, or orders against my salary. I state that this is an original transaction, and is not a renewal or an extension of any kind, and that I received the money for this paper the day I signed it, less the legal fee. I appoint S. A. Ryan my attorney in fact, to indorse my -check and receipt for same. To Western & Atlantic Railroad Company. F. B. Crawford, 29 Hill’s Ave.’ That after making said representations in order to obtain the said sum of money from the said Stephen A. Ryan Company, and after obtaining the money on said assignment, as herein set out and described, the said F. B. Crawford, by artful practice and with the purpose to defraud and cheat and swindle the said Stephen A. Ryan Co., did himself cash the time so sold and transferred to said Stephen A. Eyan Co., and appropriated the same to his own use, with the intention to defraud the said Stephen A. Eyan Co. out of the sum of $10.00 as herein set up, and did defraud the said Stephen A. Eyan Co. out of the sum of $10.00; that at the time the said F. B. Crawford collected the money due him for wages, earned while in the employ of the said Western & Atlantic Eailroad Company, for the month of October, 1905, he, the said F. B. Crawford, knew that he did not have title to the wages assigned by him to-the said Stephen A. Eyan Company to the extent of the assignment, as herein set up, and that, in collecting the wages due him, for the month of October, 1905, he intended to defraud, and did defraud, the said Stephen A. Eyan Company out of the sum of $10.00, of the value of $10.00; all of which said acts on the part of F. B. Crawford were contrary to the laws of said State, the peace, good order, and dignity thereof. C. S. King, prosecutor, Lowry Arnold, Sol. Criminal Court of Atlanta. December term, 1906.” The defendant demurred to this accusation, on the ground “that it sets forth no distinct crime; that it is vague, uncertain, and indefinite and general in its allegations, and does not properly put the defendant on notice of what he is expected to defend; and that it is fatally defective, because it is nowhere alleged that the defendant made any false representations relating to any past or existing fact.” This demurrer was overruled, and the defendant was tried and convicted. He thereupon petitioned the superior court for a writ of certiorari, alleging in his petition that the court erred in overruling the demurrer, and that the verdict was without evidence, and was c'ontrary to law. The court sanctioned the petition and granted the writ of certiorari, and, upon hearing the certiorarij entered a judgment overruling the same, and the case comes to this court on exceptions to the judgment of the superior court overruling the certiorari.

The section of the code upon which this accusation is framed is very broad in its terms. It very greatly enlarges the common-law and statutory offense of cheating and swindling by false pretenses or representations. In other words, many acts would be criminal under this statute which would not be criminal under the common law, or under statutes specifically defining the offense of cheating and swindling. Some of the essential elements necessary to constitute cheating and swindling by false pretenses cr representations need not exist, to make a' violation of this section. For instance, the deceitful means or artful practice need not be false, or relate' only -to.existing facts or past events. It might exist if the representations made were absolutely truthful, but were deceitfully and artfully used with the intent to defraud, and actually did defraud. A future promise or agreement might constitute “deceitful means or artful practice” by which an individual was defrauded and cheated. “Any deceitful means or artful practice” by which an individual is defrauded and cheated is within the terms of this statute. It is a question of fact for the'jury to determine whether the means or practice used in defrauding and cheating were de-‘ •eeitful or artful, under the ordinary signification of these words. To illustrate: If all the allegations in this accusation as to the' representations of the defendant, which were made to induce the prosecutor to buy his salary, were absolutely true, as represented, yet, if at the time of making such representations he had the intent to cheat and defraud the prosecutor by subsequently himself •collecting from the railroad company the amount of the salary which he had actually sold and for which he had been paid, this offense would be shown, under the Penal Code, § 670. These representations, to induce the buying of the salary, were the artful practices used by him which put him in position and made it possible for him to carry out and execute his fraudulent intent. If, however, at the time of making these representations and selling his salary, he did not have any fraudulent purpose, or any intention of himself collecting his salary, he would not be guilty •of violating this statute. We think these general statements are •sound and are fully supported by the decision of the Supreme Court in Garner v. State, 100 Ga. 257, 28 S. E. 24. But the accusation in this case does not measure up to the requirements above announced, so as to set forth any offense, even under this omnibus section of the code. The accusation nowhere alleges in terms that the representations were false and made with intent to defraud; nor does it allege that the representations were true, yet were used artfully and deceitfully by the defendant with the specific intent to defraud the prosecutor, or that the defendant when he made these representations then and there had the intent, notwithstanding the sale of his salary, to himself collect the same and fraudulently convert it to his own use. The fraudulent intent is applied only to the act of subsequently collecting the salary- and converting it, and it is not alleged that such fraudulent iptent was in the mind of the defendant when he made the representations that induced the purchase of his salary account. The accusation being defective in the particulars pointed out, it should have been, quashed on demurrer. Judgment reversed.


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    321.
    MOSELY v. THE STATE.
    No error of law was committed, and the evidence fully warranted the-verdict.
    Accusation of cheating and swindling, from city court of Americus — Judge Crisp. April 5, 1907.
    Submitted May 27,
    Decided June 20, 1907.
    W. M. Harper, for plaintiff in error.

      Zach. Childers, solicitor, contra.
   Hill, C. J.

The defendant was convicted of a violation of what is known as the “labor contract act” -of 1903. By consent, he-was tried by the court without the intervention of a jury. He filed a motion for a new trial, which being -refused, he brought the case to this court.

The following is a substantial statement of the evidence: The-accused worked for the prosecutor during the year 1906. In the fall of 1906 he asked the prosecutor for $15, who replied that he already owed him so much money which he had advanced to him during the year 1906, and that he would not be able to work it. out under his contract for that year. The prosecutor told the accused that he would advance him the $15, if he would agree to work for him for such time during the year 1907, commencing January 1, 1907, as it would require to work out the sum of $62 at $11 per month, said sum of $62 including the sum of $15' then advanced, and the balance of the $62 - was money the accused then owed the prosecutor, and which had been advanced to the accused by the prosecutor during the year 1906 under the contract of 1906. The accused agreed to these terms, and the prosecutor then and there advanced to the accused the $15 on the faith of such contract. The accused worked for the prosecutor on his farm the 1st day of January, 1907, and on that day-drew his rations for a week, but left after that day and did not do any more work for the prosecutor, and did not return the $15 so advanced. The prosecutor advanced the $15 to the accused by giving him a cheek for $15 on the Planters’ Bank o£ Americus. The failure to work for the prosecutor according to the agreement damaged him to the amount of $15 so advanced on the faith of the agreement, and the prosecutor knew of no good •or sufficient cause for the failure, to perform the service so contracted for. The accused in his statement admitted every fact testified to by the prosecutor, except the contract for 1907. He •denied that he made such contract.

It is insisted by the plaintiff in error that the contract proved by the prosecutor is too indefinite and uncertain as to duration to support the accusation; and McCoy v. State, 124 Ga. 218, 52 S. E. 434, Presley v. State, 124 Ga. 446, 52 S. E. 750, and Watson v. State, 124 Ga. 454, 52 S. E. 751, are cited and relied upon. In these cases and in Glenn v. State, 123 Ga. 585, 51 S. E. 605, it was held that before a lawful conviction could be had for a violation of the act of 1903 there must be proof of a distinct and definite contract for service. In the McCoy case the proof was that the accused got the money before he made the contract to perform the service. Ten dollars was advanced on the statement •of the accused that he would return some time after Christmas and work for the prosecutor. At what time after Christmas he was to come back and work for the prosecutor was not stated. IIow long he was to work, how ho was to work, whether by the day, week, month, or year, or whether he was to be paid according to the amount of work he.should do, or what compensation he was to receive, was all left to conjecture. In the Presley case the beadnote is that an accusation for a violation of this act, “which fails to set forth in substance a contract definite and certain as to its terms and duration, is subject to demurrer.” In the Watson •case the same ruling was made. Applying the law as declared in these cases tc the case now under consideration, it will be seen they do not support the contention of the plaintiff in error, but, •on the contrary, the facts here measure fully up to the requirements of thei law as laid down by the Supreme Court. Here there was a definite and distinct contract. The time when service under the contract was to begin was definitely stated as January 1, 1907. The duration of the contract was definitely fixed by the words “beginning to work January 1, 1907, and to continue work thereafter until the $62 has been worked out at $11 per month;” and the amount of compensation was to be $11 per month during the period of the contract. It did not make any difference that • a part of this compensation was the payment of a debt which the accused owed the prosecutor for advances made during the year 1906. In addition to the payment of this debt by his labor, the accused procured $15 in money from the prosecutor on his contemporaneous contract of service. If there had been nothing but the agreement to pay an existing debt due his emploi'er, by rendering to him future service, and a failure to perform such service or to pay the debt, the offense as defined in the act of 1906 would not have been committed; but money was procured on a contract to perform services therefor. These facts constitute a violation of this act. Bridges v. State, 126 Ga. 91, 54 S. E. 916.

It is insisted in the next placa that there was no proof that the 'accused in failing to perform the services or return the money did so “without good and sufficient cause.”, Unquestionably this .fact is one of the material elements of the offense which the State must prove. Johnson v. State, 125 Ga. 243, 54 S. E. 184. This fact must usually be shown by the circumstances of the ease. It is difficult to prove the negative by direct testimony. The ■prosecutor testified that he knew of no good and sufficient cause for the failure of the accused to perform his contract. The evidence showed that the accused quit work for the prosecutor after the first day, and went to work for another emploj’er, to whom he had previously hired. If he could perform labor for another, .it is fairly inferable that he could have performed his contract with the prosecutor.

'This conviction is doubtful on the essential point as to the existence of the criminal intent at the time the money was obtained by the defendant. The money was obtained some time in the fall of 1906, under contract to work for 1907. This seems rather long :for the incubation of the criminal intent, and it might be that ¡such intent was formed subsequently to the time of procuring the money. However, since this point is not made in the brief or ■argument, we must assume that this question of criminal intent was fairly and fully considered by the court acting as the jury; and we will not disturb the finding. Judgment affirmed.


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    490.
    DICKS v. THE STATE.
    1. While the court has a right to question a witness during the trial of' n case, the examination must be carefully guarded so as not to violate the inhibition of the Civil Code, §4334. The examination of the witness hv the court in this case was not so guarded, and amounted to a clear violation of that section.
    2. Exceptions not insisted on in the argument, or covered by the brief,, will be treated as abandoned.
    Indictment for car-breaking, from Richmond superior court— Judge Hammond. March 30, 1907.
    Argued May 27,
    Decided June 20, 1907.

      A. L. Franklin, for plaintiff in error.

      J. S. Reynolds, solicitor-general, John M. Graham, contra.
   Hill, C. J.

Plaintiff in error was convicted for a violation of section 184 of the Penal Code of 1895, upon an indictment charging that he did break 'and enter a certain railroad box car of the Augusta Southern Railroad Company with the intent to steal valuable goods therein, and, after having so entered, did wrongfully and fraudulently take and carry away, with intent to steal the same, two boxes of raisins, the property of the said railroad company. His motion for a new trial was overruled, and the case is before this court for review. Exceptions to the judgment of the-court in overruling a plea in abatement, and in admitting certain, testimony over the objection of the defendant, are not alluded to in the brief filed in this court, and will therefore be treated as abandoned. Two points are presented for the decision of this, court.

It is complained that the presiding' judge erred, in that he' intimated to the jury his opinion of the defendant’s guilt, and what, had been proved, as follows: During the progress of the trial and after the defendant had made his statement, the detective who' made the arrest and who discovered the stolen property was recalled, and after he had been examined 1 y counsel for both the-.State and the defendant the court continued the examination ass follows: “Q. Was he told what he was being arrested for? A. We carried a search warrant, and told him we had a search warrant for his place and for him; and he never did make any explanation as to where the goods came from or why he was in possession of them. ,Q. Did he make any denial? A. No, sir. Q. Did he see these raisins? A. Yes, sir. Q. Said nothing about Aaron Sink-field at that time? A. No, sir; he did not. Q. Were you present at the preliminary hearing? A. I was. Q. Did he make any denial there? A. Not that I heard. Q. Have you ever heard of Aaron before in connection with this case? A. No, sir; I think not.” Then the witness was cross-examined, and the court asked him the following questions: “Q. Explain to the jury where John Dicks was when you and the gentleman with you discovered this first box of raisins in his house. A. He was there in the room. Q. Did he or not see you put your hands on the box of raisins and take them into your custody ? A. I don’t see why he couldn’t. He was right there in the room, dressing. Q. Did he see you with the two boxes of raisins? A. Yes, sir. Q. Did he see you remove them from his house? A. I can’t s.ay that he did, because we ran him right off to jail. Q. Did he see you with these boxes of raisins at the time? A. Yes, sir. Q. Did he offer you any explanation? A. No, sir. Q. Did he say he got them from Aaron Sinkfield ? A. He did not. Q. Were those raisins at the magistrate’s office? A. Yes, sir. Q. Did he say there at the magistrate’s office that he got them from Sinkfield? A. No, sir; he did not. Q. Have you ever seen him where those boxes of raisins were, at police headquarters or anywhere else, when he was being charged with this crime? A. Yes, sir; they were at the magistrate’s there, and he was faced with them there. Q. Did he offer any explanation? A. No, sir. Q. Did he offer the explanation that Sinkfield had come to his house and asked permission to leave them there? A. No, sir.” Defendant’s counsel continued to cross-examine the witness, and when he finished the court asked the following questions: “Q. How long did John Dicks stay in jail before he had a preliminary and went out on bond? A. I don’t remember how long. I think he was there probably three weeks. Q. Did you see him during that time? A. Yes, sir. Q. Did he offer you any explanation? A. No, sir; nono at all. He told me to go to his lawyer.”

• To illustrate the pertinency of the foregoing examination it is only necessáry to state that the only evidence of the defendant's guilt was the presumption arising from the possession of the stolen property soon after the commission of the crime, without a satisfactory explanation of such possession. This detective, three days after the raisins were stolen from the car, found them in the defendant’s house. Neither at that time, nor on the subsequent occasions alluded to by the court, when he had an opportunity to do so, did he ever make any explanation at all of his possession, lie delayed his explanation until he made his statement to the jury on the trial; then stating that one Aaron Sinkfield left them at his house the night they were stolen. The iteration and reiteration by the court of this strongly incriminating omission oh the part of the defendant must have forcibly impressed the jury with the idea that in the opinion of the judge the explanation of his possession of the stolen goods, as then given by the defendant, was a fabricated afterthought. The emphasis which the judge by his questions gave to this significant failure of the defendant on the repeated occasions before the trial, when it was to his interest to have promptly made an explanation, and when it was reasonable to think that ho would have done so, indicated that the judge had very grave doubts of the truth of the one made. This question has been fully covered by the recent decision of this court in the Sharpton case, 1 Ga. App. 542, 57 S. E. 929. We can only repeat what we said then — that while the court can with propriety ask questions of a witness on the stand for the purpose of bringing out the facts of the case, such practice is imprudent and unsafe, and will invariably result in the imperative grant of a new trial when such examination is at all extended and 'on the vital points of the case. The rather lengthy examination of the witness above set out, calling repeated attention to the weak point in the defense, was a clear, though doubtless an unconscious, violation of the right of the defendant to have his guilt determined by the jury without the slightest assistance from the court.

It is insisted that there was no evidence of a “breaking” of the car. We have carefully examined the brief of evidence, and we find that, while the evidence on this point is weak and not entirely satisfactory, yet there is some evidence to support the verdict as to this fact, and the trial court was satisfied.

Judgment reversed.