text:
    458.
    DORSEY v. THE STATE.
    1. The law of involuntary manslaughter, as applicable to the evidence, was fully and properly presented to the jury by the charge of the court.
    2. A request to charge the jury that it is their duty,-where threats, if proved, are susceptible of two constructions, to give the defendant the benefit of the innocent construction, was properly refused. The absence of the word “equally” renders the request one not proper to be granted.
    3. To instruct the jury that threats (in any ease) “are of very little importance as evidence in guiding the jury” would he a violation of the Civil Code, §4334. The jury, and not the judge, must weigh the evidence.

      4. Extracts from a charge, upon which error- is assigned, must be considered and construed in connection with the charge taken as a whole. It is impossible for a trial judge to repeat, in every connection, all of the principles involved in the case. Nor is he required to indulge in such repetition. Where the statements upon different legal propositions are carefully distinguished and cautiously contrasted with each other, and so clearly that they can neither mislead nor confuse, the ordinary intelligence of the jury can safely be relied upon to render frequent repetition of the same principle of law unnecessary and useless.
    5-6. The judgment of the trial court, refusing a new trial, is not, for any reason assigned, erroneous.
    Conviction of manslaughter, from Hall superior court — Judge Kimsey. April 9, 1907.
    Argued. May 27
    Decided June 26, 1907.

      H. H. Dean, Thompson & Bell, for plaintiff in error.

      W. A. Charters, solicitor-general, F. M. Johnson, contra.
   Russell, J.

Dorsey was indicted for murder and convicted of voluntary manslaughter. His motion for a new trial was refused, •and he excepts to that judgment. The evidence showed that he .and the deceased and several others had been drinking together at intervals during the afternoon and 'evening. As frequently occurs ■on such occasions, there were several trivial quarrels in which the deceased participated. The defendant finally started to a house where he did not wish others to accompany him, and requested the ■deceased not to do so. This request and some words over a drink of whisky were followed by the deceased finally getting in front ■of the defendant, calling him vile names, and making a motion as if to strike him. There was no evidence that the deceased had » any weapon, though the defendant claimed in his statement that he had either a knife or knucks. The defendant had in his hand a billiard cue, which had been cut off so as to be used as a walking-stick, and with this he struck the deceased twice, once in the mouth and once on the side of the head, knocking him down each time. He then proceeded on his journey. The deceased went back to his home, procured medical attention, and died in two days. There was a former trial of this case, which is reported in 126 Ga. 633, 55 S. E. 479. In addition to the evidence there reported, there was testimony on the present trial that the deceased threatened to kill the defendant if the defendant did not kill him, and there was also evidence on the part of the State, not adduced on the former trial, that the weapon used was a deadly weapon. The case was remanded by the Supreme Court for a new trial, upon the sole ground" that the judge failed to instruct the jury as to the law of involuntary manslaughter, the Supreme Court holding, that “if the jury should find that the weapon was one which would not ordinarily produce death, and was therefore not a deadly weapon, and the circumstances demonstrated to the satisfaction of the jury that there was no intention to kill, then, even though the blow was not justified, the accused would be guilty only of the offense of involuntary manslaughter; the grade of which he would be convicted to be determined by whether the blow was inflicted as a result of an unlawful act, or whether, under the circumstances, he was justified in striking a blow, but in administering it did not use due care and circumspection.” This error of the trial court was corrected on the last trial, and both grades of involuntary manslaughter were given in charge to the jury; the jury, as on the previous trial, returning a verdict finding the defendant guilty of voluntary manslaughter. The ease is now brought to this court for review upon several assignments of. error in addition to the general grounds. *

The first of these grounds is that the court erred in refusing a written request to charge that while provocation by words, threats, menaces, or contemptuous gestures would not be sufficient to reduce the homicide below the grade of murder, when, the killing is done not on account of any fear in the mind of the slayer, but solely for the purpose of resisting the provocation, nevertheless threats accompanied by menaces may in some instances be sufficient to arouse the fears of a reasonable man that his life is in danger, or that a felony is about to be perpetrated upon him; and if the. defendant acted under the fears of a reasonable man that the deceased intended by violence or surprise to commit a felony upon him, the defendant would be justified. This request was in the language of the decision of the Supreme Court in Cumming v. State, 99 Ga. 662, 27 S. E. 177, except that in the written request presented, the word “resisting” was used instead of “resenting.” It devolved upon the defendant to present a correct request, and even though the error may be only typographical, yet as it does'not correctly state the law, it was not incumbent upon the court to present it to the jury. The plaintiff in error insists, however, that the principle embraced in the request should have been given in charge to the jury. We think the jury should have been and were instructed on the proposition for which the plaintiff in error contends. The trial judge, upon this subject, instructed the jury as follows: “You know I charged you a while ago, gentlemen of the jury, that in order to reduce a homicide from murder to voluntary manslaughter, that is where a human being is killed under a great heat of passion, that words, contemptuous gestures, or things of that sort, opprobrious epithets, should not be sufficient provocation to reduce the killing front' murder to voluntary manslaughter. Under the head of reasonable fears in case of justifiable homicide, — under this head of justifiable homicide, — where the defendant is without fault in bringing on the difficulty, acting under reasonable fears,, the law provides (it being purely a question of fact as to whether the attendant circumstances justified a reasonable fear upon the part of the accused that such injury was about to be committed, upon his person) that that question is one exclusively for the jury. There are so many conditions under which grounds for reasonable fear could arise that the legislature has not undertaken to say that any given state of facts or circumstances shall or shall not be sufficient to constitute grounds of reasonable fear, but has left the matter open for determination by the jury, in each instance, without further limitation than that the circumstances must be sufficient to excite the fears of a reasonable man that some one or more of the offenses named in the Penal Code were about to be committed, or that his life was in imminent danger; thus leaving it to the jury, after all, to páss upon the sufficiency of the circumstances for that purpose. And the jury would have the right to consider the conduct of the defendant and the conduct of the deceased, — the words that were used, if there were any used; the •jury would consider it all, what words were passed by one to the other; and it is for the jury to say whether or not the circumstances were sufficient to excite the fears of a reasonable man. If the circumstances are sufficient to excite the fears of a reasonable man, the killing will be attributed to them, in the absence of proof to the contrary, and also that.the accused acted under those fears and not in a spirit of revenge. The sufficiency of the fears is a question for the jury always. The defendant will be justifiable if there be a reasonable doubt as to whether he acted under such fears, or had reason to feel that it was necessary to kill in order to save his own life or to prevent a felonj’’ from being committed upon his person.” We think these instructions as fully put before the jury the principle that words, though not amounting to actual assault, may in some instances be sufficient to arouse the fears of a reasonable man, as did the request, and was more apt for the purpose than the charge requested, in that it called the attention of the jury to the circumstances creating the “some instances” referred to by the Supreme Court. A court of review frequently uses, and can properly use, language which would be highly improper or confusing to the jury if given in charge by a trial judge. To have charged the jury that “in some instances” threats accompanied by menaces might be sufficient to arouse the fears of a reasonable man, without instructing the jury as to the nature of those instances, would have been erroneous; because the jury would have had no information as to how they were to determine from the evidence whether such an instance was presented in the case at bar. The trial judge gave them a correct rule when he said that the jury could consider the conduct of the parties, the words that were passed from one to the other, etc., consider it all, and say whether or not the circumstances were sufficient to excite the fears of a reasonable man. And the charge we have quoted above, calling especial attention to his previous charge on section 65 of the Penal Code (when instructing them as to the law of voluntary manslaughter); and applying by contrast the use of opprobrious words to the doctrine of reasonable fears (should the jury believe the defendant acted under such fears), rendered it impossible that the jury could either have been confused or misled, or the defendant’s rights prejudiced.

The plaintiff in error assigns error upon the refusal of a request-to charge as follows: “I charge you further, that if there is any proof of threats by the defendant, introduced before j-ou, and such threats are susceptible to two constructions, it is the duty of the jury to give the defendant the benefit of the innocent construction, if they can, rather than the guilty construction.” Tlii; not being a correct statement of the law, the court was not required to present it to the jury. The rule is that if threats ar > equally susceptible of two constructions, it is the duty of the jmw, if they can, to prefer the innocent construction.

To have given the charge the refusal of which is excepted to in the third ground of the motion would have been a manifest violation of the provisions of the Civil Code, § 4334. The charge requested was in these words: “I charge you that mere idle threats, without any intention of carrying the same into execution, and without any effort to do so, are of very little importance as evidence in guiding the jury in the deliberation of the case.”

Exception is taken to the following charge of the court: “I charge you, gentlemen of the jury, if two men suddenly fall out and'fight, and there is a mutual intent to fight upon the part of the men, and there is great heat of- passion and they do fight, although there might not be but one blow stricken and that blow is the fatal blow, if there is mutual intent to fight, and they do fight, .and one is killed as a result of it — I charge you that such killing would be voluntary manslaughter, unless justified.” The complaint made of the charge is that it took from the jury the consideration of the law of involuntary manslaughter, and also the consideration of the question as to whether such fight was with or without a weapon, or with or without intent to kill, or with a weapon likely to produce death when used in the manner in which it was used, or without regard to whether there was any intention to kill on the part of defendant, and because it required the jury to find the defendant guilty of voluntary manslaughter. It is insisted further that the charge was error because contrary to the decision of the Supreme Court in the following language: “If the jury should find that the weapon was one which would not ordinarily produce death, and therefore was not a deadly weapon, 'and the circumstances demonstrated to the satisfaction of the jury that there was no intention to kill, then, even though the blow was not justified, the accused would be guilty only of the ofiense of involuntary manslaughter; the grade of which he would be convicted to be determined by whether the blow was inflicted as a result of an unlawful act, or whether, under the circumstances, he was justified in striking the blow, but in administering it did not use due care and circumspection.” It is further insisted that it was erroneous to instruct the jury that such killing would be voluntary manslaughter unless justified. The extract from the charge to which exception is taken, if considered alone, or if it had been delivered as a part of the instruction with reference to involuntary manslaughter, or if there had been an absence of other and correct instructions upon the subject of involuntary manslaughter, would have been error. But it must be borne in mind that the language quoted in this exception is only a disconnected fragment from the charge of the court upon the subject of voluntary manslaughter, in which the court more than once called attention to the fact that it was only to be considered as'applicable to that particular grade of homicide. The judge first instructed the jury as to the law of murder; then the application of the law of voluntary manslaughter was discussed; then involuntary manslaughter; and finally justifiable homicide; and as the judge would pass from the one to the other he very carefully and cautiously called the attention of the jury thereto, and instructed them so-that they could not be confused or misled. Considered with what preceded and followed the extract upon which error is assigned,, there is no ground for complaint; for it is impossible for the trial judge to repeat in every connection all of the principles and limitations involved in the entire case. Nor is he required to do so. Some' reliance must be had on the ordinary intelligence of the-jury to render repetition unnecessary and useless. In other portions of the-charge, after clearly and specifically referring to the charge here complained of and distinguishing the application of the two principles, according as the jury might find the truth, the court fully instructed the jury that they were to consider the-nature and character of the weapon and the intention with which, it was used, charging them as follows: “I charge you that if 3^011 believe, from the evidence, that the weapon used, if one was used, if it was not a deadly weapon, or, if it was a deadly weapon, it was not used in a deadly manner, then I charge you he would be justified. It would be for you to justify the use of it by words, that is to say, if the deceased used words, opprobrious words and epithets, to the defendant, it would be for the jury to say whether or not the defendant was justified in the use of the weapon. Now if the jury should believe, as I have already charged'you, that the defendant was justified in the use of the weapon, but that it was not used with due caution and circumspection, why then he would be guilty of involuntary manslaughter in the commission of a lawful act. But if you should believe, from the evidence, that the weapon was a deadly weapon, in the manner in which it was used, then I charge you that words would not justify the use of it; and. it would be for the jury to say whether it was a deadly weapon, or not, in the manner in which it was used; and if the killing was done then in that wa}r by the defendant, with no intent to kill, if he had no intent to kill, and there was no malice at the time of the killing, why then I charge you that it would be involuntary manslaughter in the commission of an unlawful act.” This charge not only gave all contended for by the plaintiff in error, but was really more favorable than the defendant had any right to expect; for it would have permitted the jury to acquit the defendant and justify him in the killing for the use of mere words. The error in the charge was prejudicial to the State, and not to the defendant. The phrase to which exception is taken, that “such killing would be voluntary manslaughter unless justified,” instead of excluding involuntary manslaughter from the consideration of the jury, .as assigned, is fully explained and referred to in the very full charge upon the subject of involuntary manslaughter, delivered by the court.

The complaint made in the fifth ground of the motion is that the court, in the charge upon which error is assigned, excluded from the jury the law of involuntary manslaughter in the commission of an unlawful act, under the evidence in the case. Boiled down, it is nothing but a complaint that the law of involuntary manslaughter was not charged in immediate connection with the charge assigned as error. As stated above, the judge instructed the jury on each grade of homicide, clearly, fairly, fully, and in accordance with the law, and so carefully called the attention of the jury to the distinctions to be drawn, that this assignment of error is in our judgment absolutely without merit. Summing up all the different points made by the plaintiff in error, an inspection of the charge as a whole discloses the fact that each and all of them are answered by the presentation to the jury of every principle insisted upon by him, except that the judge very properly did not charge upon the weight to be given to threats. And in the absence of a proper request upon that subject, the omission to present it to the jury is not reversible error, under the facts of this case.

The plaintiff in error further insists that he is entitled to a new trial on account of the following language of the court, used in charging the jnry. “As honest, upright men, you take this case. You have the interest of society on the one hand, and you have the interest of the defendant on the other; and as honest, good men, men who love liberty, men who love society, men who love law and order, decide this case according to the evidence and the law as given 3>-ou in charge by the court.” After a review of the very-impartial charge in this ease, with which the jury could not have failed to be impressed, we are constrained to consider criticism of this portion of the charge as hypercritical. It is not necessary for a judge to refer to the importance of the case in his charge to the jury; but the propriety of doing so is purely a matter ■of discretion, and he can not be held to have erred unless in such remarks there is contained a misstatement of the law, or such an utterance as is calculated to prejudice the minds of the jury against the accused. The statement by the judge that the jury had the-interest of society on one hand, and the interest of the defendant •on the other, does not, without a forced construction, not to be •drawn from the absolutely fair and impartial charge preceding it, necessarily imply that the interests of society were antagonistic to the interests of the defendant. It is not unlike the statement, very frequently made by trial judges, of the names of the parties to the case. It is not very dissimilar to the opening remarks of the charge of the court in Cobb v. State, 27 Ga. 681, to which no exception was taken. In Akridge v. Noble, 114 Ga. 950, 41 S. E. 78, it was expressly held that it is not erroneous for the judge to call the attention of the jury to the fact that they have taken .an oath to try the case according to the evidence and the law as .given them in charge by the court, and that they can not set up any ideas of their own in reference to the law of the case, in opposition to the charge of the court. In Beck v. State, 76 Ga. 453, complaint was made4 that the court erred in charging the jury to take the case without any desire to convict an innocent man or to .acquit a guilty one, but with the sole purpose of vindicating the law .and finding the truth of the case; and the Supreme Court held that there was no error in this part of the charge, that “it is the duty of the jury to vindicate the law.”

It will be noticed that the closing instruction of the court was •that the jury should “decide the case according to the evidence, .and the law as given you in charge by the court.” The first and second assignments of error are, that tbe verdict was contrary to the evidence, without evidence to support it, and against the weight of the evidence. In our view the plaintiff in error has no reason, for complaint, upon these grounds, which we are authorized to consider. The evidence fully sustains the verdict, though the jury, under the charge of the court, would have been justified in finding a verdict for involuntary manslaughter of either grade, or in acquitting the accused. This court can not consider the question of evidence, unless for want of evidence a verdict is contrary to law. Judgment affirmed.


source: Caselaw Access Project

author: Hill, C. J. Russell, J., and Powell, J.,

license: Public Domain

text:
    277.
    STARNES et al. v. ATLANTA POLICE RELIEF ASSOCIATION.
    1. Where the constitution of a relief association provides that “no member shall be entitled to benefits who has not paid dues and assessments, in advance,” and that “any member whose dues remain unpaid for two. months shall be dropped from the roll and lose all claim to membership,” neither of these results will ipso facto amount to a forfeiture of the benefits. There must be some judicatory or affirmative action by the association, declaring the member suspended or expelled.
    2. Where the secretary of the association has simply -marked the defaulting member as “suspended,” this does not amount to affirmative action of the association.
    3. Where the association has entered upon its minutes an order declaring-, a member dropped as “being two months in arrears with his dues to the» association,” such order will be ineffective and inoperative unless at that time the dues of the member have remained unpaid for two months.
    4. Where the son for some months paid to the proper officer of the association his father’s membership dues, which were accepted by such officer, the actual bona fide tender thereafter by the son of his father’s dues as. such member to said officer, who declined positively to receive them, prevented a forfeiture of the membership for non-payment of dues; and where such tender has been made and so declined, the tender need not he repeated to prevent a forfeiture.
    5. The word “famity,” used in the constitution of a benefit association to-designate the class to which the beneficiaries must belong, includes any relative who lives with the member and who is dependent upon him, or with whom the member lives, and by whom he is supported and cared for at the time of his death. The majority of this court gives to the-word “family” a broader definition than tlie one just indicated.
    O. Courts should construe the constitution and by-laws of a relief association liberally to effect its benevolent purpose, and not so as to defeat such purpose.

      Complaint, from city court of Atlanta — Judge Reid. October 4, 1906.
    Argued April 9,
    Decided June 26, 1907.

      J. W. Moore, George Gordon, J. A. Branch, for plaintiffs.

      James L. Mayson, William P. Hill, for defendant.
   Hill, C. J.

This was a suit by the plaintiffs in error, as the only heirs and members of the family of W. A. Starnes, against the Atlanta Police Relief Association. At the conclusion of the evidence the court directed a verdict for the defendant; and to this judgment the plaintiffs except. The following is a substantial statement of the evidence: W. A. Starnes was a policeman of the City of Atlanta, and in 1898 became a member of the Atlanta Police Relief Association. On October 16, 1904, he died. It was admitted that from the date of his becoming a member until July 5, 1904, he continued to be a member in good standing in the association. It was also admitted that the plaintiffs were his only children at the date of his death, and that his wife had died in the month of .June, 1904, and that the relief association had paid to him in the early part of October, 1904, the benefit to which he was entitled by reason of his wife’s death. There was a conflict in the evidence as to the payment of the dues for the months of July and August, 1904. It was admitted by the secretary of the association, whose duty it was under the by-laws of the association to receive such dues, that he received the dues from the plaintiff, IV. A. Starnes Jr., for the month of July, 1904, but that he soon thereafter returned them to Starnes, who voluntarily took them back. The latter part of this statement was denied by Starnes. It was conceded that the son had been paying his father’s dues for some months before his death, and the son testified that in August, when the monthly dues were to be paid, he tendered to the secretary the dues for that month; that after taking the dollar for that month, the secretary at that time gave back to him two dollars, being the dues for July and August, telling him that they preferred to drop his father from membership, because of his immoral conduct; that the secretary handed the money to him before he made this statement, and he at once tendered it back, denying his right to receive it, or the secretary’s right to return it, but that the secretary refused to take it back. The witnesses for the association testified that Dr. Starnes, the son, agreed to take back the dnes, and asked that his father be dropped for non-payment of dnes, and not for immoral conduct. This was denied by Dr. Starnes. No dues were paid or tendered for September or October, 1904, because, as Dr. Starnes testified, the secretary had notified him that he would not receive any if tendered.

The minutes of the association showed that W. A. Starnes had been dropped from the roll of membership, August 11, 1904, because “two months in arrears with his dues to the association.”

Article 4 of the constitution of the association was introduced in evidence. The part thereof pertinent to the subject of dues is as follows: “Sec. 1. Each member shall pay to the secretary one dollar dues each month in advance. Sec. 2. All dues and assessments shall be paid to the secretary by the fifth day of each month. No member shall be entitled to benefits who has not paid dues and assessments in advance. Sec. 3. Any member whose ■ dues remain unpaid for two months shall be dropped from the roll .and lose all claim to membership.” The evidence was undisputed that W. A. Starnes and wife, during his membership in the association, had lived with their daughter, Mrs. Crist, for six years prior to liis death; that he went to' Alabama to do some work, and, after • an absence of several months, returned to Atlanta and went to live with his son, Dr. Starnes, where he was supported and eared for by said son for about one month when he died at his son’s house. Article 5, of the constitution, section 1, was as follows: '“On the death of any member the sum of one thousand dollars : shall be paid to his family, each member to be assessed two dollars -and fifty cents.” It was admitted that the only members of the ■ family of W. A. Starnes at the date of his death were the plaintiffs, liis three children, all of whom were of age, married, and living rseparate from their father and not dependent on him; but as stated, •at the date of his death he was living with his son, W. A. Starnes Jr., one of the plaintiffs, and at that time, as claimed, was dependent upon said son. It was insisted by the defendant, in support of the motion to direct a verdict, that, under this evidence, no legal verdict for the plaintiffs could have been found, (1) because IY. A. Starnes was not a member of the association at the time of his death, as the evidence showed that he had been dropped by .formal action of the association August 11, 1904, bein'g two months in arrears with his dues to the association; (2) because at the time-of his death he had not paid all dues and assessments in advance,, and was therefore not entitled to benefits; (3) because, from the-undisputed evidence, the plaintiffs did not constitute the “family” of the member, within the meaning of that term in the constitution.

Under the Civil Code, § 5331, the court may direct a verdict,, where there is no conflict in the evidence, and that introduced, with all reasonable deductions and inferences therefrom, demands the-verdict as directed. There was decided conflict in the evidence on the question of the payment of dues. To support the direction of a verdict, we must assume that the testimony of Dr. Starnes, was true but was legally immaterial. It was admitted that Dr. Starnes paid the dues to the secretary June 5, thus continuing the-membership of his father until July 5. On August 6 the secretary marked Starnes “suspended,” and on August 11 thereafter the-association dropped him from membership as “being two months-in arrears with his dues to the association.” But this action of the association was unauthorized by the constitution. The language is, “Any member whose dues remain unpaid for two months shall be dropped from the roll and lose all claim to membership.” Iiis dues were admittedly paid up to July 5, 1904. The association could not drop him from membership for non-payment until the dues had remained unpaid for two months; which would not have been the case until September 5, 1904. A member can not be dropped immediately upon failure to pay dues. ,A definite time-of default is fixed. The dues must become due and “remain unpaid for two months” before such action can be taken. This is. the plain, unequivocal construction to be placed on these words. If Lhe construction was doubtful, we would give to it the construction which would prevent a forfeiture. In Warwick v. Knights of Damon, 107 Ga. 115, 32 S. E. 951, the Supreme Court expresses only the universal and controlling rule, in holding that “'Forfeitures are not favored in the law, and in order to work a forfeiture of the rights of membership in a mutual association, it must clearly appear that such was the meaning of the contract,, and the facts upon which a forfeiture is claimed must be proved by the most satisfactory evidence.” The court, in applying this doctrine to an association closely analogous to the one now under-consideration, declares, “When the rights of members or their beneficiaries are involved, by-laws declaring a forfeiture are to be construed strictly if their validity is called in question, and liberally if it is sought to bring such claimants within their provisions, so as to prevent a forfeiture in either case.”

But apart from the order of the association expelling Starnes, dated August 11, 1904, it is insisted that plaintiffs can not recover under section 2 of article 4 of the constitution, which in express words provides that “no member shall be entitled to benefits who has not paid dues and assessments in advance.” We think, under the facts of this case as shown by the plaintiffs, there was never a legal “suspension” of Starnes because he had not paid “dues and assessments in advance.” The plaintiff’s evidence showed a payment of the dues for July and August, although returned after payment in the manner described, and gave as a reason for not tendering the dues for September and October the positive declaration of the secretary that he would not accept them if tendered. If this testimony was true, all dues had been paid in law at the date of Starnes’ death, October 16, 1904, and he was at that time a member in good standing. “Even where the rules of the association indicate that such non-payment of a monthly assessment by a member is a ground of suspension, a forfeiture of his benefits under the certificate will not result from such non-payment, unless there has been some judicatory or affirmative action by the association, declaring the member suspended.” Warwick v. Knights of Damon, supra. It can not be reasonably claimed that the act of the secretary, August 6, 1904, in marking Starnes “suspended,” is sufficient “judicatory or affirmative action by the association.” No action declaring a suspension for non-payment of dues or assessments- was ever taken by the association. The only action of the association expelling the member because “his dues and assessments had remained unpaid for two months” was that of August 11, 1904, which the evidence shows was entirely,, ineffective, because in violation of the constitution _ and unwarranted by the .facts. We conclude that the fact of membership at. the time .of death should have been left to be determined by the jury, and could not- have been decided by the court as a matter of law.

The main question, however, upon which.it is said the learned judge below based his, judgment, directing a verdict for the defondant was the opinion entertained by him that the deceased, Avhatcver might have been his status in reference ¿0 membership in the association, had no “family at the date of his death to take the benefit.” The evidence showed that his wife had died a feAV months before, and all of his three children, the plaintiffs in the suit, had married and had families of their own, and were living in separate households from their father, and were not dependent upon him for support. Article 5, section 1, of the constitution of the association proAddes, “On the death of any member the sum of one thousand dollars shall be paid to his family, each member to be assessed two dollars and fifty cents.” What is the meaning of the Avord “family,” as here used? The word is most elastic and flexible, either broad or narrow, according to the subject-matter to which it- applies. In its limited sense the Avord “family” signifies the father, mother, and children. In its ordinary acceptation it means all the relatives who descended from a common progenitor. In its very restricted sense it means, husband and wife; father, mother, and children; father and children; mother and children; or children forming the same household. Some general rules of construction have been laid down for our guidance when the word is used in contracts of insurance, by mutual insurance companies, benefit societies, and like associations. “Where, under the contract, certain classes of persons only may take the fund, a broad and liberal meaning should be given to the words in which the classes are specified.” Niblack Benefit Societies (2d ed.), § 175. “Where the word ‘family’ has been used to designate the class to which the beneficiaries must belong, the courts have not generally given it a strict construction, and relationship, either consanguineal or marital, has not always been insisted upon in order to bring one under this class.” 3 Am. & Eng. Enc. L. (2d ed.) 963; Carmichael v. N. W. Mut. Ben. Asso., 51 Mich. 494, 16 N. W. 871.

When we come to consider the cases where the courts have construed the meaning of the term “family,” AAre find, notwithstanding these general rules, great divergence of construction. Some courts, adopting the liberal construction, have held that the Avord . “family” includes relatives by blood or marriage, even'Avhen not living in the same household with the member or dependent on him at the time of his death. In Tepper v. Royal Arcanum, 61 N. J. Eq. 638, 41 Atl. 460, 88 Am. St. R. 449, the court holds that stepchildren living apart from the member and independent of him at the time of his death, who had been brought up in his household, could lawfully be‘designated as members-of his “family,” even after they had married and left his household. The court in that case construes the word “family,” as used in the constitution and by-laws of benefit societies, as including members of the horisehold 'who in the usual course of family development have separated themselves from membership in the family. In Faxon v. Grand Lodge, 87 Ill. App. 262, it was held that the stepmother of a member, who was not living with nor dependent upon the member at the time of his death, was a member of his family, under the meaning of that term as used in the constitution and by-laws of the lodge, she being the only surviving member of his family. For substantially similar rulings, see Lane v. Lane, 99 Tenn. 639, 42 S. W. 1058; Norwegians’ Old People’s Home Society v. Wilson, 176 Ill. 94, 52 N. E. 41; Hosmer v. Welch, 107 Mich. 470, 65 N. W. 280, 67 N. W. 504; Wilson v. Cochran, 31 Tex. 677, 98 Am. D. 553; Hofman v. Grand Lodge, 73 Mo. 47; Ferbrache v. Grand Lodge, 81 Mo. App. 268; Klotz v. Klotz (Ky.), 22 S. W. 551. Other courts following the view of Lord Kenyon in King v. Inhabitants of Darlington, 4 Term Rep. 800, have given to the word “family” a restricted meaning. “In common parlance,” said Lord Kenyon, “the family consists of those who live under the same roof with the pater-fafnilias; those who form (if I may use the expression) his fireside. But when they branch out and become the heads of new establishments, they cease to be a part of the father’s family.” Similar constructions of the word, “family,” when used in the charter or by-laws of benefit societies, Avill be found in the following cases: Elsey v. Odd Fellows Association, 142 Mass. 224, 7 N. E. 844; Tyker v. Odd Fellows Association, 145 Mass. 134, 13 N. E. 360; Rocco v. Green, 50 Tex. 483; Brower v. Supreme Lodge, 87 Mo. App. 614; Zimmerman v. Franke, 34 Kan. 650, 9 Pac. 747.

From a most careful study of conflicting authorities, I deduce the following as the sound rule of construction: Where the word “family” is used to designate the class who shall receive the benefit, any relative who is living with and dependent upon the1 member, or with whom the member is living and upon whom he is-dependent at tlie date of his death, is within the designated class and entitled to the benefit. This combines the family relation with the fact of dependence, both of which I think should exist in such cases. The construction of this word in the constitution of the association, insisted upon by the able attorney for the association as meaning wife and dependent minor children, or wife, or dependent minor children, is entirely too narrow and defeats the benevolent purpose of the association. There might be cases where the member’s- family consisted of adult children dependent upon him, or where the member himself was dependent upon adult children who took care of him and paid his dues. Surely in such cases it would be unreasonable to hold that the benefit failed because there was no one to take it. In our opinion the constitution and by-laws in these associations should be construed by the courts so as to effect their benevolent object, and not to defeat that object. There was some evidence in this case from which the jury could have inferred that the son had paid the dues of his father to the association for some months, and that at the date of the father’s death he was living with and was being supported by the son. We think he was entitled to have these questions of fact determined by the jury, and that a direction of a verdict against him was erroneous.

Judgment reversed.

Russell, J., and Powell, J.,

specially concurring: With the result reached, and with most of what is said by the Chief Judge in the opinion filed by him, we fully concur; however, we think that the word “family” should be'given an even broader meaning than he has given it. Upon the theory, well recognized bjr the courts in dealing with insurance and similar beneficial contracts, that a death benefit bought and paid for by a person in life should not fail upon liis death for lack of a- beneficiary competent to take, no hesitancy has been shown, in the construction of sueli contracts, in giving great elasticity to the meaning of words where necessary to do so in order to find a beneficiary.. ■ Such a rule of constru: - tion is desirable from the standpoints both of the- insurer" and, b£ the insured. One of the chief objections hitherto made against fraternal insurance is that it does.not offer freedom in.-th,e designation of beneficiaries,, and that the member is liable to.-pay for i.nsur-ance which can never be collected, by reason of some .strict anditgohifical construction of the limitations-.imposed-, as to-who- shalh-bQ, a beneficiary. The result of a course of judicial construction which liberally construes such contracts, so as to make it more certain that the benefits bought will reach some person or persons whom the member would really wish such benfits to reach, is, therefore, to give popularity to this form of insurance. In such contracts the word “family” has been most liberally extended, wherever necessary to effectuate the beneficial purpose. It is a word which must vary in meaning according to the conditions surrounding the member at the date of his death. From' a review of the decisions, we deduce the following order of precedence which should ordinarily be observed in- determining who are entitled to take under the words “family of the member,” or similar designations:' (1) "Wife and unmarried children, minor or adult; or, if no unmarried children, (2) wife alone; or, if no wife, (3) unmarried children alone; or, if no wife and no unmarried children, (4) persons related by consanguinity or affinity, living with the member in the same household; or, if none of these, (5) any person related by consanguinity or affinity upon whom the member is dependent; or (6) any person related by consanguinity or affinity, dependent on and supported by the member; or; if none of these, (7) married children, irrespective of dependency; or, if none of these, (8) father, mother, brothers, and sisters, irrespective of active household connection, and irrespective of the question of dependence; and in some instances an even further -extension may be made, if necessary, in order to find a beneficiary. The existence of the benefit connotes a contemplated beneficiary, and the law will find one if possible.


author: Hill, C. J.

text:
    274.
    Terrell v. Tommey.
    Certiorari, from Fulton superior court — Judge Pendleton. October 2, 1906. ■ .
   Hill, C. J.

Where a certiorari' involves no legal principle, but, on the sole ground that' the judgment was .not supported by the evidence, challenges a judgment of the recorder or police judge of the City of' Atlanta, declaring the existence of a private alley, and finding that a fence or gate built across the alley interfered with the right to its use, and directing that the obstruction be abated as a nuisance, the judgment of the superior court overruling the certiorari and affirming the judgment will not be disturbed unless manifestly erroneous.

Judgment affirmed.

Argued April 8,

Decided July 4, 1907.

Mrs. Tommey filed a petition in the recorder’s court of Atlanta, alleging that she was the owner and in possession of a certain lot in that city; that along the east side of the lot was an alley, which was an appurtenance to it, and which had been open and used continuously and uninterruptedly by her and her predecessors in title and possession for more than 20 years, and that the right to use the alley as a means of ingress and egress had been fully recognized and undisputed for more than 20 years, that the defendant, Terrell, had deprived her of the use of nearly half of the alley, and had prevented her from using the alley as a way of ingress and egress by constructing a gate and fence across it; and that the fence and gate so constructed across the alley were a private nuisance;' and she prayed for an order requiring the defendant to abate the same. The evidence was conflicting, but there was much testimony, both documentary and oral, in support of the plaintiff’s contentions. The recorder entered a-judgment finding that the alley in question “is appurtenant to the property of the plaintiff,” and “that she had the right to use the same for the entire length of her lot on the east side,” and “that the fence and gate erected across said alley by W. H. Terrell, the defendant, is a nuisance, and that said. Terrell is hereby required to abate the same within 10 days after this date by removing said fence and gate and leaving said alley open and unobstructed.” To this .judgment, the defendant, by his petition for certiorari, excepted on the ground that it was without evidence to support it. The judgment of the superior -court, overruling the certiorari, is assigned as error.

W. H. Terrell, Edgar Latham, for plaintiff in error.

Walter T. Colquitt, contra.


text:
    318.
    VAN WINKLE GIN & MACHINE WORKS v. PITTMAN et al.

    1. The right to open and conclude in a jury trial is of great importance; and the plaintiff should not be deprived of this right, unless the defendant, in his pleadings, before the introduction of any testimony by the plaintiff, admits facts authorizing, without further proof, a verdict in the plaintiff’s favor for the full amount claimed in the declaration.

      2. Oral admissions. by tbe defendant are not sufficient to entitle him to the opening and conclusion. Admissions for that purpose must be made in his pleadings.
    3. In a suit by a corporation, as such, on a promissory note which contains ' a provision for • attorney’s fees, alleging written notice of intention to sue, as required by law,- an admission in the answer, limited to the execution of the note, but accompanied with a denial of the allegation as to notice of intention to sue, is not sufficient to entitle the defendant to open and conclude the argument.
    Complaint, from city court of Jefferson — Judge Stark. October 11, 1906.
    Argued May 7,
    Decided July 4, 1907.

      Ellis, Wimbish & Ellis, J. S. Ayers, for plaintiff.

      John B. Gamble, Shackelford & Shackelford, for defendant.
   Hill, C. J.

This was a suit on a promissory note. The petition alleged, that the plaintiff was a corporation; that the defendants were jointly and severally indebted-to it in the amount of the-note made and delivered to it by the defendants; and that written notice had been duly served on the defendants of an intention to sue-The defendants filed a joint answer. They denied that plaintiff' was a corporation under the laws of Georgia. They denied that any written notice was served on them, as required by law, of an intention to sue. They admitted the execution of the note sued on. They further answered that they had paid $100 on the note, which had not been credited to them. The jury found a verdict for the plaintiff for the amount which the defendants admitted in their answer was due on the note. The plaintiff made a motion for a new trial, and the court overruled the motion. On the trial of the case, when counsel for plaintiff had opened the ease and tendered in evidence the note sued on, the attorneys for the defendants stated orally that the defendants would admit a prima facie case, and asked that they be allowed the opening and conclusion. Over the objection of the plaintiff, the court permitted the defendants to assume the burden and open and conclude the argument before the jury. The plaintiff excepts to this ruling, because it deprived the plaintiff of its legal right, and was contrary to law and the rules of the court. Besides the general grounds, it assigns several errors in the admission of testimony. We think it only necessary to review the ruling allowing to the defendants the right to open and conclude the case.

The Supreme Court has frequently held that the right to open and conclude in a jury trial is an important right, and that an improper denial will work a -reversal. Buchanan v. McDonald, 40 Ga. 288; Chapman v. Atlanta & West Point Railroad, 74 Ga. 548; Fisher v. Jones Co., 108 Ga. 490, 34 S. E. 172. This right is most valuable .when the questions in the case are largely dependent upon the facts, and the opinion which the jury may entertain of conflicting evidence. Of course the general rule is that this right belongs to the plaintiff; and before the defendant will be entitled to open and conclude the argument, he must, in his pleadings, admit enough to make out a prima facie case for the plaintiff. In other words, the pleadings of the defendant must contain admissions sufficient to entitle the plaintiff to a verdict for the full amount sued for. Admissions made by the defendant for the purpose of gaining the advantage of opening and concluding must be in his pleadings, and not merely oral. DuBignon v. Wright, 122 Ga. 263, 50 S. E. 65; Dorough v. Johnson, 108 Ga. 812, 34 S. E. 168. The foregoing being well .settled as rules of law, does the admission contained in the answer of the defendants measure up to the requirements.? This is a suit on a promissory note. The admission in the answer is: “Defendants admit the execution of the note sued on.” “The defendant in an action upon a promissory note payable to the plaintiff or bearer is entitled to open and conclude, when by his plea he admits the execution of the note sued on and that the plaintiff is the legal holder of the same.” Levens v. Smith, 102 Ga. 480, 31 S. E. 104.

It is insisted that the admission in the answer, as to the execution of the note sued on, was not sufficient, in that it failed to admit that the plaintiff was the legal holder of the same, and, as such, entitled to bring the suit ; and that the denial of the allegation of corporate existence made it necessary for the plaintiff to prove that fact. The plaintiff is the payee named in the note; its name imports a corporation, even if there was-no such allegation. A presumption of corporate existence was thus raised,'and the burden was cast on the defendants to prove affirmatively that no such corporation existed. The admission, aided by this presumption, was sufficient, on this part of the plaintiff’s case. Besides, we can not' see how the corporate existence of-the plaintiff was at all material to the defendants. They admitted the execution of the note. The suit was brought by the payee against the makers, and whether such payee was a corporation or a partnership was wholly inconsequential. But the plaintiff, according to the terms of the note, also sued for attorney’s fees, and alleged that written notice of intention to sue had been properly given the defendants. This allegation was denied in the answer; which made it incumbent upon the plaintiff to prove it, in order to recover attorney’s fees. “To entitle the defendant in a civil action, arising ex contractu, to the opening and conclusion of the argument b}r virtue of the admission that the plaintiff h'as a prima facie right to recover, the defendant must, before the introduction of any evidence, admit facts authorizing, without further proof, a verdict in the plaintiff’s favor for the full amount claimed in the declaration.” Abel v. Jarratt, 100 Ga. 732, 28 S. E. 453; Phœnix Insurance Co. v. Gray, 113 Ga. 432, 38 S. E. 992. We are clear that fhe admission made by the defendants, for the reasons stated, was not sufficient to entitle them to the right to open and conclude the •case, and that the trial court erred in permitting them to do so.

The other grounds in the motion for a new trial,’ as corrected .and verified, are without merit. Judgment reversed.


text:
    319.
    Van Winkle Gin & Machine Works v. Mathews et al.

    Complaint, from city court of Jefferson — Judge Stark. October. 11, 1906.
   Hill, C. J.

1. In a suit on a promissory note by the payee therein named,' where the allegation is made that the plaintiff was a corporation, it would be incumbent upon the defendant to prove affirmatively that no such corporation existed. This would be true without such allegation, where the name of the plaintiff itself imports a corporation. Wilson v. Sprague Mowing Machine Co., 55 Ga. 672; Cribb v. Waycross Lumber Company, 82 Ga. 579, 9 S. E. 426; Mattox v. State, 115 Ga. 219, 41 S. E. 709. Therefore, in such a suit, where the defendant in his pleading admits the execution of the note, such admission, with the presumption of corporate existence, makes a prima facie case for the plaintiff, and the defendant would be entitled to' the opening and conclusion, although by his answer he had expressly denied the allegation that the plaintiff was a corporation.

2. The other grounds in the motion for a new trial, alleging error in the admission of testimony, as corrected and verified by the trial court, are without merit. Judgment affirmed.

Argued May 7,

Decided July 4, 1907.

Ellis, Wimbish & Ellis, J. S. Ayers, for plaintiff.

Shackelford & Shackelford, John B. Gamble, for defendants.


author: Russell, J.

text:
    347.
    CLARK & WILCOX v. EMPIRE MERCANTILE CO.
    1. New trials are not granted for harmless errors. When the jury find a verdict which is necessarily correct in spite of erroneous instructions,, errors in the charge are harmless. Where, upon review of the evidence, it is manifest that the finding of the jury was as favorable to-the party complaining thereof as if no error had been committed, defects in the charge are immaterial; and it would be useless to order ' a second trial when the judgment rendered in the former trial is as favorable to him as it could have been had there been no error.
    2. While it is the duty of the court to construe written contracts for the-jury, in the absence of ambiguity, yet in this case the court very properly left to the jury to determine the meaning of the words “invoice cost,” contained in the contract; for the reason that the stock of goods in question had been twice sold by invoice, and it was an issue of fact between the parties as to which invoice was to determine the cost or value of the articles sold. See Moss Mfg. Co. v. Carolina Cement Co., 1 Ga. App. 232, 57 S. E. 914.
    Certiorari from Irwin superior court — Judge Martin. September 15, 1906.
    Submitted May 13,
    Decided July 4, 1907.

      Haygood & Cutts, for plaintiffs in error.

      E. W. Ryman, contra.
   Russell, J.

The Empire Mercantile Company had two stocks of merchandise, at Wray. One stock of goods at Wray had been bought as a whole from the Dooly Lumber Company and was what might be called an old stock. Clark & Wilcox entered into a negotiation to buy both stocks of goods, and the trade was closed by the following writing or contract: “Received of Messrs. B. E. Wilcox and John Clark, five and oo/100 dollars, as part payment on stock of merchandise now owned by us at Wray, Ga., it being understood and agreed by both parties should the Dooly Lumber Co. fail to agree to transfer agreement between them and the Empire Mercantile Co.’, then said sale to be null and void, otherwise to be in full effect to take place and be transferred on the first day of March, 1903, at invoice plus the freight and should any article in stock appear to be damaged, when both parties fail to agree on price, said article to be taken ont of inventory, provided, however, such articles are meant as are actually damaged or shopworn. Terms of sale two thousand dollars cash, balance to be divided into six equal payments of 30, 60, 90, 120, 150, 180 days each.”

In conformity with this contract Clark & Wilcox executed the six notes, payable as therein provided, and five of them were paid at maturity. The sixth note was not paid. Suit was brought on it and is the subject of this litigation. It seems that the stock which was bought from the Dooly Lumber Company was the cause of the trouble. Some time after the sale Clark & Wilcox found out that Dooly Lumber p Company had given the Empire Mercantile Company a discount of twenty-five per cent, when they bought this old stock. The dispute, therefore, arose as to whether the words “invoice price” referred to the original invoice cost, which appeared to have been marked on the goods, or to the price paid by the Empire Mercantile Company'for the stock of the Dooly Lumber Company on which there was twenty-five per cent, concession. It was undisputed that at the time of the negotiation for the sale and when the sale was blosed, some of the members of the Mercantile Company did not know that there had been a twenty-five per cent, discount allowed in their purchase. Dnder these. circumstances we agree with the judge of the superior court that the judge of the city court very properly allowed the jury to determine what was meant by the words “invoice cost,” in the contract between the parties in this ease. Nearly all of the numerous exceptions assign error on the failure of the judge of the city court to construe the contract as matter of law. We think the learned counsel misconceived the holding of the trial court. There is nothing in the charge, nor is there any ruling of the court, which indicates a purpose on the part of the trial judge to shirk his duty in this regard; but where a contract is ambiguous the jury must find the facts, and in this instance it was nothing but an issue of fact that was to be determined, to wit, whether invoice cost (the meaning of which is, the cost as appears from the invoice or bill furnished contemporaneously with a purchase of goods) in this case was to be derived from one invoice or another and different invoice; in other words, whether the price was to be fixed by the invoice at which the Dooly Lumber Company stock was bought by them, or whether the indebtedness of Clark & Wilcox to the Empire Mer- . cantile Company for the stock purchased by them from the Dooly Dumber Company was to be diminished by a twenty-five per cent, discount, which, so far as the evidence discloses, did not appear upon any invoice. And in this view of the case the ruling of the court, in our opinion, was more favorable than the plaintiffs in error had any right to expect.

But conceding all that the plaintiffs in error claim (which is that they were entitled to a discount of twenty-five per cent, on the stock of goods known as the Dooly Lumber Company stock), no error harmful to the plaintiffs in error appears in the judgment overruling the certiorari. Their contention was that, allowing the twenty-five per cent., the note would be canceled by the credit to which they would thus be entitled. But the evidence shows that, taking into consideration about $500 worth of the Dooly Lumber Company’s stock returned by Clark & Wilcox as shop-worn, there was only about four hundred dollars worth of this stock included in the purchase. While there was conflict as to this, and testimony placing the amount higher than $500, still the jury were authorized to find, as the value of the Dooly Lumber Company stock, $500 less. Twenty-five per cent, of this valuation being deducted from the noté sued on would be equivalent to the verdict found by the jury. The credibility of the witnesses is exclusively a question for the jury, and, in our opinion, the preponderance of the evidence established the fact that the value of the Dooly Lumber Company stock accepted by the plaintiffs in error showed it to be worth from three to four hundred dollars, and not exceeding the latter figure. The verdict of the jury found $243.71, for the plaintiff; the note in suit was for $368.71, — a reduction of $125. The verdict, therefore, shows clearly that the jury adopted the theory of the plaintiffs in error, that they ought to be allowed a discount of twenty-five per cent.; and that-they found the value of the Dooly Lumber Company stock to be $500. The jury would have been authorized, under the evidence, to find the value of the Dooly Lumber Company stock to be only $300, or to find it to be $400; and in either event, as the credit allowed would have been less, a ■greater verdict in favor of the plaintiff than that found would have been fully sustained. In this view of the case, the errors assigned in the petition for certiorari either failed to be sustained or be■«came entirely immaterial. Granting every contention of the plaintiffs in error, and that the court on another trial should rule in ex-.■aot accordance with their view of the case, still, if the jury believe that the value of the Dooly Lumber Company’s stock, after the rejection of the shop-worn goods, was worth no more than $500, the verdict would be the same. And as no reason appears why the ■result would be different, a new trial is useless. It is useless to .grant a new trial for errors in a charge or ruling upon evidence, when the result of such trial and the judgment rendered therein is as favorable to the movant as it could be if there had been no error; and when, upon a review of the evidence, it is manifest that the finding of the jury was as favorable to the party complaining .thereof as if no error had been committed, defects in the charge of ■the court become immaterial, it being otherwise evident that the parties have had a fair trial and the evidence was fully and properly submitted. Judgment affirmed.


author: Powell, J.

text:
    373.
    Swain et al. v. Nasworthy.
    Distraint, from city court of Abbeville—Judge Nicholson. February 15, 1907.
    Argued June 21,
    Decided July 4, 1907.

      E. H. Williams, for plaintiffs in error.
   Powell, J.

1. Upon the trial of a case arising from the filing of a counter-affidavit and replevy bond to- the foreclosure of a distress warrant, the defendant can not properly move to dismiss the levy on the ground that it is excessive.

2. The effect of filing the counter-affidavit and bond is to render the process mesne; and the proceeding becomes a suit to recover rent, the distress warrant operating as a declaration and the counter-affidavit as a, plea. Chisholm v. Lewis, 66 Ga. 729; Elam v. Hamilton, 69 Ga. 736; Seifert v. Holt, 80 Ga. 757, 9 S. E. 843.

3. The tenant’s remedy against an excessive levy, if he has any remedy, is an action in damages for the abuse of the process. Sturgis v. Frost, 56 Ga. 189. Judgment affirmed.


text:
    417.
    Strachan & Co. v. Wolfe, for use, etc.
    Motion to reinstate, from city court of Brunswick — Judge Gale. March 15, 1907.
    Argued June 25,
    Decided July 4, 1907.

      Bennet & Conyers, for plaintiffs in error.

      Hardeman & Jones, Max Isaac, contra.
   Powell, J.

1. The exercise of discretion by the trial judge in reinstating a case dismissed for want of prosecution will not, unless flagrantly abused, be disturbed. Davis v. Alexander, 27 Ga. 479; Wallace v. Cason, 42 Ga. 438.

2. As to those judgments which, outside of the merits of the controversy, pertain to the rules of practice, and are rendered upon formal matters of procedure, the trial judge is allowed a wider control, as to modification or annulment, than as to judgments upon substantial matters affecting the merits of any portion of the case. E. T. V. & G. Ry. Co. v. Green, 95 Ga. 37, 22 S. E. 36.

3. While the truth of a motion to reinstate a case, or similar motion, should be made to appear, yet where the presiding judge entertains the motion, this fact, on exceptions to the judgment, affords a sufficient implicit verification; aliter where the motion is denied.

4. A motion of the character indicated is to be regarded as filed, when actually presented to the court for action, though the written entry of filing by the clerk is not made until a later date.

Judgment affirmed.


text:
    427.
    CARTER v. THE STATE.
    1. The exclusion of evidence offered to rebut the presumption of malice, in a trial for murder, is not cause for a new trial, where the defendant is only convicted of voluntary manslaughter.
    2. That a witness may have made a different statement as to alleged dying declarations, on the examination by the court into their admissibility, from that thereafter made by him in the hearing of the jury, is not ground for excluding his evidence as to such declarations. The injunction that dying declarations are to be received with great caution is directed more especially to the jury than to the judge. The judge, in passing upon the admissibility of dying declarations, determines only whether a prflna facie case is presented, conceding the testimony to be true. He does not pass upon the credibility of the witness delivering the testimony. If a witness' makes different statements in any respect material to the proof of dying declarations, the jury may discredit him, but the trial judge can not for that reason withhold his testimony from the jury.
    3. The ability to distinguish between right and wrong in relation to a. particular act about to be committed is the general test of criminal responsibility in this State. The only exception ' so far recognized, as to one who has reason sufficient to distinguish between right0 and wrong as to the act about to be committed, is where such act is connected with a peculiar delusion under which the prisoner is laboring, and where, in consequence of such delusion and without criminal intent, the will is overmastered. Intermittent insanity, caused by physical weakness or nervous disorders, is no excuse or justification for crime, unless it appears that at the time of the act committed the defendant was incapable of adjudging the quality of the act and of knowing whether it was right or wrong.
    4. Where evidence as to the insanity of a defendant is introduced under the general plea of not guilty, in a criminal case, it is the duty of the trial judge to instruct the jury upon the subject of insanity as a defense. In the absence of evidence that the defendant acted under the influence of an overmastering delusion, there was no error in the charge complained of in this case. If fuller instructions were desired, they should have been requested in writing.
    5. The conduct of the judge towards witnesses will not be controlled, except for such abuse of his authority as would manifestly tend to shape or unduly influence the finding of the jury. The refusal of a trial judge to allow a question to be answered by a witness can not be reviewed, unless it appears that the answer expected to such question was stated at the time of the ruling complained of.
    6. While testimony that one of the defendant’s witnesses, or her husband, had unlawfully sold whiskey should have been repelled upon the objection offered, that such testimony was irrelevant and immaterial, still the error in admitting this testimony is not sufficiently grave to warrant a new trial.
    7. The remaining assignments of error are without merit.
    Conviction of manslaughter, from Polk superior court — Judge Edwards. March 9, 1907.
    Argued April 23,
    Decided July 4, 1907.

      John K. Davis, J. M. Hunt, Bunn & Bunn, for plaintiff in error.

      W. K. Fielder, solicitor-general, contra.
   Russell, J.

The plaintiff in error was convicted of the offense of voluntary manslaughter. He excepts to the judgment refusing a new trial. The testimonj'- in the case is extremely voluminous, but is substantially as follows: On the part of the State it was shown that after a trial in a justice’s court, in which Carter (the plaintiff in error) was one of the parties and the deceased, Reed, was a witness, Reed, in company with several other persons, started from the court-house toward home. The decision of the justice’s court was adverse to Carter. Reed was a witness at the trial, in behalf of one Townsend, who was the opposite party in the suit against Carter. He was perhaps also somewhat interested in the result of the case, and concerned in favor of Townsend. The deceased was over seventy years of age and quite deaf. As he was proceeding homeward with his companions, the party was overtaken by Carter, who walked along with them about two hundred yards, during which time Carter charged the deceased with being responsible for the lawsuit against him, and used some vile epithets about the deceased. Perhaps on account of his deafness, the deceased did not appear to have heard Carter’s first remarks. A little later Carter and Eeed became involved in an altercation, and Carter drew from his pocket a pistol and shot Eeed, who was unarmed, except with a small walking-cane, and who fell to the ground and screamed. Townsend seized Carter and the pistol, and held him until the pistol was taken from him. The evidence for the State does not disclose that Eeed had any weapon of any kind -other than the small walking-cane; and it was proved that he habitually carried this to walk with. He was picked up, carried home, and undressed, and no weapon was found upon him. As a result of the wound, death supervened four days later. Before his death Eeed stated that he was going to die. He made this statement on the night of the difficulty, as well as an hour or two before his 'death. And after each of these statements; showing consciousness of his condition, he gave his version of the difficulty. ..

The testimony for the defendant, as to the material issues in the case, was squarely in conflict with that for the State. Witnesses on behalf of the defendant testified, that Eeed made the first advance upon Carter, and struck him with his walking-stick, and that Eeed had a knife fin his hand. Some of the witnesses testified that they did not know whether the deceased struck with the knife or not, while others testified that' the deceased struck the defendant with the knife and cut his coat upon the shoulder, and that thereupon, while the deceased was still cutting at him with the knife, Carter stepped backward and fired. There was also testimony showing that there was a mutual intent to'fight and that Eeed drew his knife and Carter his pistol about the same time. The defendant also attempted to show that .he was insane; and testimony was permitted from several’witnesses showing that he was at times wild and irrational." He ’further offered evidence of partial or temporary insanityj of weakness of mind'in connection with his weakened condition, and of a distortion of mind in connection with his disturbed nervous condition, and of his habit of faking liquor and narcotics impairing his capacity.

The defendant moved for a new trial upon the general grounds, and upon grounds relating to the charge of the court and the failure to charge, as well as grounds relating to the exclusion and introduction of testimony, and to conduct of the court, which is claimed to have been prejudicial to the defendant, and upon the ground of newly-discovered evidence.

The first ground of the amended motion assigns error in that the court ruled out certain evidence relating to the purported testimony of Carter, the defendant, at the justice’s court immediately preceding the difficulty which resulted in Eeed’s death. The only error assigned is that the court should have admitted this testimony in order to permit the defendant to rebut the idea of malice on his part against Eeed, and to meet the State’s theory that Carter had ill will against Eeed and was the aggressor in the fight. It is unnecessary to consider whether the exception would have been well taken if the verdict had been for murder; for, inasmuch as the defendant was only convicted of voluntary manslaughter, no harm resulted to him by reason of the court’s ruling. The jury, by their verdict, found that the killing was done' without malice, and the testimony repelled by the judge was only proper to be considered by the jury to induce the same result as occurred.

The second exception of the plaintiff in error is that the court erred in refusing to allow him to prove by one Mr. Eeeves whether the witness had not heard him state from the stand that Mr. Ivins had asked him to let Mr. Eeed pasture in the pasture, and that he was going to do it. He contends that this evidence was material and would have been beneficial, and was offered for the purpose of showing that he had no malice or ill will against the deceased. He further insists that this evidence would have greatly assisted him in showing the jury that he acted in self-defense and without malice or ill will. The verdict being for voluntary manslaughter, the lack of evidence showing absence of malice was not injurious to the plaintiff in error. Furthermore, the offer to prove the facts stated was not properly made. Counsel should have stated what the witness of whom he wished to ask the questions would testify. It not being shown by such statement that the witness would have testified what the defendant’s counsel offered to prove, this assignment of error can not be considered.

The third ground of the motion assigns error upon the admission of certain purported' dying declarations of the deceased. The objections offered were, that such declarations should be received with great caution, and that the evidence should be excluded because the witness, J. H. Wilson, by whom the declarations were shown, had testified, during the court’s examination into the admissibility of the testimony, and in the absence of the jury, “that such declarations were made by the deceased on Friday night prior to his death on the following Tuesday morning, and that deceased was conscious until a short time before he died and had been told that he would recover;” and, after giving that evidence, testified, “That is all he said, and he never did make any other statement; and I stayed with him several nights and had him by the hand when he died.” “That is all I heard him say;” and, after deliv-. ering this testimony, the witness was present in court, heard the argument of counsel, and went upon the stand and stated that upon Tuesday night, just before Heed’s death, Eeed stated that he had done nothing to Mr. Carter to cause Mr. Carter to kill him.” The complaint of the plaintiff in error is, that the court should not have admitted the declarations alleged by the witness to have been made by Eeed on Tuesday morning, shortly before his death, because the witness had changed' and altered his evidence in the presence of the court; that the court violated the rule that dying declarations should be received with great caution, by permitting the witness to testify to the jury with relation to the statements made by Eeed shortly before his death.

We can not see that the ruling of the court was, for the reason assigned, erroneous. In the first place, the instruction, that dying declarations are to be received with great-caution,'is more especially directed to the jury than to the judge. In the next place, the judge, in passing upon the admissibility of dying declarations, only determines whether a prima facie case has been established; and so far as the credibility of the witness is concerned, a court of review can not, from the very nature of the case, control his discretion. In the third place, the court permitted the discrepancy, in the statement by the witness to be proved to the jury; so that it was within their power to pass upon the questions of fact involved; and i£ the witness had really made contradictory statements, it was in their power to impeach and discredit him thereby. After all, we see no real conflict (after careful reading and rereading of Wilson’s testimony), — at least, no necessary conflict, — in his statement. After detailing to the court the statements made by Eeed to him on Friday night, he proceeds to say: “That is all he said, and he never did make any other statement; and I stayed with him several nights,” etc. “That is all I heard him say.” The statements the witness related to the jury as having been made by Eeed on Tuesday morning shortly before his death are in practically the identical language of those he repeated to the court shortly before adjournment the evening before; and if he had replied, using the same language he did, with three very immaterial changes, his veracity, could not have been questioned even by the plaintiff in error. As innocence is to be presumed instead of guilt, and as the language of both declarations detailed by the witness is identical, and.as the ordinary witness is not so skilled in the art of speech as to aptly choose the very word suitable to convey the shade of thought he might seek to convey, we think that the trial judge properly understood the witness as intending to say, “That is all he said, and he never did make any different statement. . . That is what [all] I heard him say.” Plainly, to our mind, the only idea the witness intended to convey was that the statements he had attributed to the deceased were truthfully repeated, and that the deceased had not at any time made any other or different statement in his hearing. If the witness had been asked the distinct question, whether the deceased ever repeated these statements at any other time than Friday night, and had answered the question in the negative, the jury would have been authorized to discredit him; but the trial judge could not for that reason withhold his testimony from the jury. In the absence of evidence that the witness’s attention was specifically called to the point, to discredit him because of the language used in the .answer which we have heretofore quoted would be manifestly unfair.

In the fourth ground of the motion for new trial it is insisted that the court erred in charging the jury as follows: “The defendant sets up the further defense of insanity. A person shall be considered of sound mind who is neither an idiot, a lunatic afflicted with insanit}', or who has arrived at the age of fourteen years, ox' before that age if such person knows the distinction between right and wrong. The law presumes every defendant to be of sound mind, and the burden is on the defendaxxt to satisfy the jury to a reasonable certainty that he was not of sound mind when the act was coxnnxitted. The insanity which the law recognizes as an excuse for crime must be such as dethrones reason and incapacitates an individual froxn distinguishing between right and wrong as to the consequences of his conduct. If you find froxn the testixnony submitted on the trial of this case, to a reasonable certainty,, that the defendant at the time of the homicide was afflicted with insanity to that extent as to dethrone reason and to incapacitate him from distinguishing between right and wrong as to the consequences of his act or conduct, you should acquit the defendant of the offense charged. If you find froixx the testimony that the defendant, at the time of the homicide, had sufficient mind and understanding to distinguish between right and wrong as to the consequences of his own act and conduct, he is responsible for his act. In other words, if he was not, at the tixxxe of the homicide, afflicted with insanity to such an extent as to dethrone reason and incapacitate him from distinguishing between right and wrong as to the consequences of his own act aixd conduct, it would be your duty to find against the plea of defendant of insaxxity. A lunatic or person insane, without lucid intervals, shall not be found guilty of any crime or xxxisdemeanor of which he may be charged; provided, the act so charged as criminal was committed in the coixdition of such lunacy or insanity; but if a lunatic has lucid intervals of understanding, he shall answer for what he does in those intervals as if he had no deficiency. So, gentlemen of the jury, if you find from the testimony that the defend ant was afflicted with insanity at times, he would be responsible for his acts when not under the influence, or not in that state of miixd. If he did the act, and was not in one of these conditioxxs at the time — not in a conditioxx of not distinguishing between right and wrong at the time — lie would be responsible for his act as though he was not afflicted with insanity at all.”

The complaint of the plaintiff in error is that the judge presented, the law of total insanity, and not a theory of partial insanity or temporary insanity or distortion of xnind gi owing out of a physical condition of the defendaixt and its effect (by reason of the shattered nervous system ox defendant and the use of stimulants and opiates) on his mental condition.

Counsel for plaintiff in- error insists, that, under the evidence as to the physical condition of the defendant, excitement would unbalance him and cause him to lose his normal judgment and discretion and make him like a man wild or crazy, and that under these conditions, although the defendant did not set up full insanity, nor seek to prove it as a complete defense, in and of itself, defendant was not to be held to use the same normal judgment, discretion, and coolness that the ordinary man would be called on to use, and that the judge should have instructed the jury that the ■defendant should be judged as he was, and not held to the standard required of the normal ordinary man unafflicted as he was, with reference to his conduct at the time of the difficulty; that the jury should have been instructed that they should consider the mental condition or distortion of mind of the defendant, if they believed such was caused by his physical condition, in determining whether the defendant acted in good faith, believing that there was a necessity for taking the life of his. assailant to save his own life ■or to prevent a felony from being perpetrated upon him. The exact exception to the charge quoted above is thus set out by plaintiff in error in his motion for new trial: “The defendant did not set up as matter of defense such insanity at the time of the homicide as would make him irresponsible for his acts under the general rules of law relating to pleas of insanity, but offered evidence of a partial or temporary insanit)», or weakness of mind or distortion of mind in connection with his weakened physical condition and his disturbed nervous system, and the habit of taking liquor and narcotics, as impairing his capacity, under circumstances of excitement or danger, to act with the same coolness and deliberation and discretion as the average or ordinary man would be held to act and judge; and the defendant by his counsel claimed, that, owing to his mental and physical condition, he would not be held, ■and should not be held by the court and jury to act with the same discretion and judgment as the ordinary physically and mentally .sound man, and claimed that the court should submit that question in his charge to the jury; that in determining as to whether he acted in good faith, believing that his life was in danger and that it was necessary to shoot the deceased to save himself, the jury should have been allowed to consider this question. This theory of defense was not submitted at all by the court to the jury, but in lieu thereof the court gave to the jury the general law of insanity, and the movant insists that he erred therein, and further .erred in not submitting the claim, as above set forth, which was urged by the defendant through ¿his counsel.”

The objection is twofold, that the charge on, insanity, being irrelevant, was hurtful to the defendant; and that the real contention of the defendant upon this subject was not presented. We find no error in the charge complained of, and if fuller and more explicit instructions were desired they should have been requested. It appears from the record that evidence was introduced for the purpose of showing that the defendant was insane at the time of the homicide; and therefore it was incumbent' upon the. court not to turn the jury loose upon that evidence without chart or compass to aid them in applying it. And the rule announced by the court has been uniformly recognized in this State at least ever since the case of Roberts v. State, 3 Ga. 310. The rule there laid down by the Supreme Court is as follows: “If a man has reason sufficient to distinguish between right and wrong in’relation to a particular act about to be committed, he is criminally responsible.” The only exception made to this general rule is where the act done is connected with a peculiar delusion, and is committed in consequence of such delusion without criminal intent but by reason of the will being overmastered and overpowered by such delusion. The doctrine laid down in the Roberts case has never been overruled or questioned by the Supreme Court. The case has frequently been cited with approval. See Choice v. State, 31 Ga. 424; Danforth v. State, 75 Ga. 614, 58 Am. R. 480; Carr v. State, 96 Ga. 294, 22 S. E. 570; Flanagan v. State, 103 Ga. 625, 30 S. E. 550; Taylor v. State, 105 Ga. 775, 31 S. E. 764.

The judge could not present the theory of partial or temporary insanitj', insisted upon by the plaintiff in error, because there was no evidence that the defendant was acting under the influence of any delusion and that the act was committed in connection with such delusion. There has never been any morbid sentimentality on the subject of insanity in the decisions in this State, and yett there has been always the exercise of the largest humanity in behalf of the actually insane. The question is not without difficulty. As said by Judge Nisbet in Roberts v. State, supra: “The laws of the sane mind are but little understood; much less are the laws, if indeed such phraseology is predicable of it, of the unsound mind, , . We can judge of the one by external developments and by our own consciousness; of the other only by external indicia. There are few men so balanced in- intellect as not at some times and upon some subjects to approximate towards derangement. . . Intellectual enthusiasm, not unfrequently, approaches the line of insanity. The numerous cases of mania or delusion which leave the mind sound in general, but as to certain things shattered or wholly obliterated, have increased the difficulty of any specific general rule as-to the responsibility of those . . generally classed as insane. . The subject of insanity is not responsible — humanity, reason, the law so adjudges. . . In all definitions of murder, of which I have knowledge, the requirement is found that the slayer must be of sound mind. Our own statutory definition requires1him to be ‘a person of sound memory and discretion/ Accountability for crime presupposes a criminal intent, and that requires a power of reasoning upon the character and consequences of the act; a will subject to control. . . The difficulty is to determine-who is ‘a person of sound memory and discretion/ who is incapable of a criminal intent, who is incapable of reasoning upon the' character and consequences of the act, and who is without control over his will. . . Mr. Chitty says, ‘in criminal cases the question is, whether, at the time act was committed, the prisoner was incapable of judging between right and wrong, and did not then know that the act was an offense against the law of God and nature/ . . There are some exceptions . . one, certainly, which was first established in the leading case of The King v. Hadsfield. 'The great speech of Mr. Erskine in defense of Hadsfield has shed new light upon the law of insanity. . . It is looked upon by the profession as authority. . . In that case he assumed the position that a man might have reason sufficient to distinguish between the right and the wrong of the act about to be committed, . . and yet, by reason of some delusion overmastering the will, there might be no criminal intent. To apply this proposition it was admitted by Mr. Erskine that the act itself must be connected with the peculiar delusion under tvhich the prisoner labours. . . • To use the language of Mr. Erskine, ‘reason is not driven from her seat, but distraction sits down upon it along with her, holds her trembling upon it and frightens her from her propriety.’” Our courts have never gone to the full extent of Mr. Erslrine’s argument, and certainly have never held the contention of the plaintiff in error upon this subject to be the law. No decision has come under our observation where temporary insanity or loss of self-control, caused by physical infirmity, has been held to justify a killing or even to reduce the offense from murder to manslaughter. In its last analysis the contention of the plaintiff in error is, that, while ordinarily sane, his physical condition was such and his nerves were so unstrung that he was more easily excited than an ordinary man, and that when thus excited he became temporarily irresponsible. Similar defenses have been several times disapproved by our Supreme Court. In Fogarty v. State, 80 Ga. 450, 5 S. E. 782, the Supreme Court held that there was no error in refusing to charge the jury that “if the defendant commit an assault, knowing it to be wrong, when driven to it by r.n uncontrollable and irresistible impulse, arising not from natural passion but from an unsound condition of mind, he is not criminally responsible.” In the case of Patterson v. State, 86 Ga. 70, 12 S. E. 174, while the court affirmed the judgment of the trial judge in excluding certain testimony for a different reason, Chief Justice Bleckley took occasion (while the language used by the trial judge is not stated) to say that what he said was pertinent, and the ruling upon the question in that case is authority for the statement that the citations of the learned counsel for plaintiff in error' upon the subject of the appearance and general health, etc., of the person whose sanity is in question, are not in point in this case. In Lee v. State, 116 Ga. 569, 42 S. E. 759, and in Rogers v. State, 128 Ga. 67, 57 S. E. 227, the doctrine announced hi Studstill v. State, 7 Ga. 12, that there is no distinction as to partial or temporary insanity, and that such insanity is not recognized as a defense relieving' from responsibility of crime, is reaffirmed. In Lee’s case the trial judge refused, upon request, to charge the jury that if they believed from the evidence that the defendant, at the time of the homicide, was afflicted with epilepsy to such an extent as to be insane and that under the influence of such •epilepsy he was incapable o'f controlling his action, but was impelled by the effect of such disease to the commission of the homicide m question, even though he may have had knowledge as to the right or wrong of the action in question, he would not be guilty. The refusal to thus instruct the jury was expressly approved. The court then proceeded to reaffirm the former decision .as to the general rule and the exception in regard to delusional insanity. But as to a very similar theory to that contended for by the plaintiff in error in this case, Chief Justice Simmons, delivering the opinion, says, “It seems to us that to uphold such a theory would be to put the public at the mercy of any person who fails to suppress his anger or jealousy; who is sane at one moment, insane at the next, and then immediately afterward sane again. . . It is, however, useless to elaborate any further, as this court is bound by its former decisions upon this subject, which will be found cited in Carr v. State, 96 Ga. 284, 22 S. E. 570, Taylor v. State, 105 Ga. 746, 31 S. E. 764; Minder v. State, 113 Ga. 773, 39 S. E. 284. We therefore conclude that those requests to charge, which sought to substitute another test of sanity for the knowledge of right and wrong, should not have been given. With regard to the exception to the general rule in ease of delusional insanity, the charge was correct, and followed the cases of Roberts v. State, 3 Ga. 310; Danforth v. State, 75 Ga. 614; Flanagan v. State, 103 Ga. 619.”

In this ease no request was preferred, but had the deféndant obtained all he contended for in this ground of the motion, it eer■tainly could not have reduced the offense lower than voluntary manslaughter, and in view of the finding of the jury no possible harm was done him. The evidence upon the subject of insanity was introduced by the defendant in the testimony of Dr. Chapman, his sister, and other witnesses; and as insanity at the time of the ■commission of the alleged crime need not be specially pleaded but may be relied upon as a defense under the plea of general issue, we think the trial judge should have charged upon the subject. As there was no evidence of delusion on the part of the defendant ■or that he acted under the influence of such delusion in the commission of the act with which he was charged, there was no error in not extending the instructions given.

The fifth ground of the motion alleges that the court erred in rebuking one of the defendant’s witnesses in the presence of the jury and thereby prejudicing defendant’s case by discrediting his witness. This is specially insisted upon because plaintiff in error argues that the court was unfair, in the trial, to the defendant, and partial to the State, as shown by the difference of treatment given these witnesses by the conrt. It appears that the witnesses had been separated and that the defendant’s witness, not having been informed of the order of the court sequestering the witnesses, sat down for an instant in the court room before he came to the stand. Upon this fact being disclosed, although defendant’s witness said he heard none of the evidence, the court said to said witness, “You knew the witnesses were separated yesterdajq didn’t you?” Upon the witness replying in the affirmative, the court inquired, “Why did you come in the court-house and sit down?” And when the witness answered that he sat down because he was expecting to take the witness chair, the court remarked, “We will see about this-when we get through.” Plaintiff in error contrasts this with the action of the court in connection with a witness sworn on the part of the State, who had been in the court-house a portion of the day during the delivery of testimony, and to whom objection was made as a witness upon that, ground, but whom the court allowed to testify. We do not fully approve the practice of threatening a witness in the hearing of the jury, but we can not say that any threat was necessarily implied by the language of the court. The language of the court is just as susceptible of the idea that the court did not wish to consume time with a further examination into the matter at that time and that he would not, if a hearing was had, punish the witness,# as to the construction ’ that, by his language, he threatened witness. But even if he had fined the witness for disobedience of his order, we could not control his discretion, unless manifestly abused, nor would it necessarily follow that the credibility before the jury would be diminished because of the fact that the court might have adjudged him guilty of disobedience of the court’s orders. So far as the treatment of the State’s witness being improper, it is always discretionary with the trial court as to whether certain witnesses may, for any special reason, be allowed to remain in the court room, and the fact that the witness has heard the testimony is not sufficient reason to exclude his testimony. We can not say that the treatment of the two witnesses shows partiality to the State or was prejudicial to the defendant, as was contended by plaintiff in error, nor that the treatment of these two witnesses, as it appears in the record, is tantamount to an expression of opinion, on the evidence in the ease, unfavorable to thp accused.

The sixth ground of the motion contends that the court erred in allowing testimony from the witness, Mrs. Gill, showing that her husband had sold liquor and trying to show that she herself had sold liquor. The objection to the evidence was that it was immaterial and irrelevant. And error is also assigned because such evidence was not proper to be used as a mode of impeachment. We readily .concur in the opinion of counsel for plaintiff in error that the fact that the party may or may not have been guilty of unlawfully selling intoxicating liquor is not a proper mode of impeaching a witness, and the business followed by the witnesses husband was immaterial. But conceding that the court erred in his ruling in this matter, the error is not sufficiently grave to warrant a reversal.

There was no error on the part of the trial court in refusing t'o' allow the witness, Beeves, to show that the pasture in question in the lawsuit which preceded the difficulty was in the possession of Carter and that he had the right to it. In any view of the case this evidence was immaterial.

Nor was any harm done the defendant by the refusal of the court to allow the witness, Jackson, to testify what the defendant threw up early in the morning of the day of the difficulty. The court allowed testimony without limit as to'the comparative size and strength of the defendant and the deceased at the time of the difficulty, and the witness, Jackson, was allowed to testify as to the health of the defendant early in the morning of that day and that the defendant turned sick and threw up. If defendant was sick, and the sickness had not been relieved at the time of the difficulty, the weakness caused thereby might be considered by the jury, but could not be material as to what was thrown up, in the absence of any statement to the court by counsel as to what he expected to show.

The defendant also insisted in his motion that a new trial should he granted upon the ground of newly-discovered evidence. The affidavit of W. M. Baper tended to show that while the deceased was being undressed after the difficulty his pants fell upon the floor and something heavy hit the floor (presumably a knife), and that deceased showed great anxiety about what was in his pocket and called several times to his wife and family to see after it. This witness also testified that he asked the deceased what •caused the trouble, and he said “Oh Lord, I couldn’t take everything.” This witness testified at the trial.'

The most that can be said as to the testimony of this witness, in so far as being of advantage to the defendant is concerned, is, that it tends to show that the deceased might have had a knife in his pocket when he was carried home and therefore might have had •one at the time of the difficulty. As this evidence is merely cumulative of the testimony of several witnesses for the defendant, who testified on the trial more strongly to the same effect, it affords absolutely no reason for granting a new trial. The other affidavit, made by Joseph Hendrix, can not be considered, because it is not accompanied by the affidavits of counsel or of the defendant or of witnesses vouching for deponent’s good character and association, as required by law.

After a very painstaking investigation and consideration of the mass of testimony in this case and careful examination into every •contention urged by the plaintiff in error, we are firmly convinced that no error was committed requiring the grant of a new trial. 'The evidence was conflicting; we have no power to disturb the verdict of the jury thereon. And if w'e had such power, the interest of society would not be subserved by its exercise in this case.

Judgment affirmed.