text:
    9978.
    FOUNTAIN v. THE STATE.
    Decided November 23, 1918.
    Rehearing denied December 13, 1918.
    1. The court did not err either in refusing to continue the case, or in refusing to declare a mistrial.
    2. “Evidence offered in a trial for murder to show the character of the deceased for violence win, as to the party making the attack, be confined to the reputation .which the deceased bore in the community, and will not extend to specific acts.”

      (a) “Any evidence depending on the knowledge of the witness, save what he has as to the reputation of the deceased, should be excluded.”
    3. Grounds of a motion for new trial based upon the introduction of evidence present nothing for adjudication by this court When the evidence is not set forth therein either literally or in substance, nor ■ attached as an exhibit to the motion.
    4. “Unless in its nature manifestly prejudicial, or the assignment of error shows’ wherein it was harmful, the admission of irrelevant testimony will not be sufficient ground for the grant of a new trial.”
    5. “An assignment of error upon a ruling of the court excluding evidence, which does not set forth the evidfence literally or in substance, is too indefinite to present any question for consideration.”
    G. Where the attorney for a defendant in a criminal case is interrupted in his argument by the trial judge, and a colloquy between court and' counsel follows, in which nothing prejudicial to the cause of client or counsel is developed, the mere fact that the argument was interrupted will not require the grant of a new trial.
    7. A new trial will be granted because of a statement of counsel to a jury only when the statement is “manifestly improper and prejudicial to the rights of the opposite party. If the nature of the remark is such that it can plainly be seen that it could not have affected the result, the-error would be harmless, and would afford -no ground for a new trial.”
    8. When considered' in connection with the entire charge of the’ court no error appears in the experpt quoted in ground 10, as to when the entire testimony of an impeached witness should be disregarded.
    9. Where a judge in charging a jury incorrectly states in the first clause of a sentence a proposition as law, and immediately thererafter and in the same sentence says, “that is,” and follows this by a second clause containing a correct statement of the law, the effect is to “specifically modify” the erroneous statement in the first clause and render it harmless.
    10. The court did not err in charging on flight.
    (Certiorari granted by the Supreme Court.)
    Conviction of manslaughter; from Ben Hill superior court-judge Crum. July 9, 1918.
    Charlie Fountain, a White man, was indicted for the murder of Crockett Gallimore, a negro, and was convicted of voluntary manslaughter. His motion for a new trial was overruled and he excepted. Two of the grounds of the motion were that the court erred in refusing to continue the case, .and in refusing to order a-mistrial on account of a certain occurrence during the progress of the trial. As to these two grounds the trial judge says, in a qualifying note: “When this case was called on March 11th for trial Mr. J. H. Quincey, of counsel for movant, made the showing that Mr.'John W. Bennett was leading counsel for the defendant. At his request the case was postponed until as late as Wednesday morning, March 30th, Mr. Quincey at that time knowing that he .vould be engaged in the regular term of Berrien county superior court, and not sure that he would be loose from that' court at that time, Wednesday. On Wednesday morning, March 30th, the leading counsel, Mr. Bennett, and Mr. Bice, Mr. Quincey’s partner, were present in court, as well as the defendant’s father who, as the record shows, was in charge of the active' preparation of the case on the facts.' The court had summoned near one hundred jurors in order that this case might be tried by a jury drawn from the box. The coiirt, knowing that [of] all men connected with the case the defendant’s father was better prepared to strike the jury than any one else, ruled the case to trial in so far as the selection of a jury on that date, and postponed the taking of testimony until the following day. Mr. Quincey came into the. court-room a few minutes after the selection of the jury had been completed, and had the opportunity of. consultation with the witnesses, along with all the other counsel, during the remainder of the afternoon, from about four o’clock. . As to the witnesses for ■whose absence continuance was asked, John Bennett, E. D. Murray, and Dock Armatrout were secured and were accessible to the defendant and his counsel during ¿11 of the actual trial of the ca.se, and were not used by them. Iverson McCook was sworn. After the motion for continuance was made, neither the defendant nor his counsel ever called on the court to procure the ■ attendance of Sam Dixon, although he lived in the city. When the motion was overruled on Wednesday, March 30th, the court furnished a special officer with an automobile to search for Charlie Baker, and the defendant’s counsel were notified that they could provide any friend or relative of the defendant to go along with this special officer to make search for Charlie Baker, and they availed themselves of this privilege. After being gone all day the 'officer reported that they had gone to those portions of the county designated by the defendant and his counsel, and that they were unable to find Charlie Baker, or to find any one who knew or had ever heard of him. When this report was made, defendant was asked if they desired any further search made, or could suggest where Baker might be. found, and, there being ho further suggestions as to the whereabouts of Baker, further efforts to find him were abandoned.”
    “Note to the second ground of the amended motion: During the trial of the case the court was privately informed by the sheriff that a man under the influence of whisky had been in the witness room, and treating the witnesses to whisky. The court privately informed the sheriff to be sure as to this, and, if he found that such was the case, to arrest the offending party and bring him into court. The witness-room referred to is in the corner of the courthouse building, adjacent to the front-entrance door to the courtroom, that entrance door being a folding door, situated about 50 feet in front of, and in full view of, the judge’s stand, the upper two-fifths of each panel of the doors being of opaque glass. There is a strong light coming through this door from the outside of the building, to such an extent that the court could see through this opaque glass movements of the bodies of parties outside the door.' Anticipating that the sheriff might make an arrest, the court was on the lookout for what did occur. As soon as he saw a commotion beyond the door outside of the court-room he divined what was coming, and immediately turned to the jury and a'ddressed them direct, ‘Gentlemen,’ go to the jury-room.’ The jurors immediately arose from their seats and were making their way to the jury-room door, which was within a few feet of the jury-box, when the sheriff came through the front door with one Tom Fuller, and while he was making his way down the aisle the jurors’were filing out. A few of the jurors hesitated, and the court spoke to them again and asked them to retire to the jury-room, which they did.' The sheriff brought the prisoner around on the opposite side from the jury to the judge’s stand and placed a bottle partly filled with what appeared to be whisky on the judge’s stand. Without making any inquiry as to what had occurred, and without anything being said within the possible hearing of the jury as to the cause of the arrest, the- court, addressing the sheriff, ordered the prisoner taken to jail.- In this connection the court further certifies that while the name of Tom Fuller was called as a witness for the defendant when he called his list of witnesses, Fuller did not respond, and was not brought to the bar of the court and sworn with the other witnesses, and sent to the witness-room. The court being of the opinion that nothing had occurred to prejudice the defendant, or his ease, and as defendant’s counsel were unable at the time to point out wherein or how his case had been in any wise prejudiced, the court declined to grant, the mistrial as asked for.”

      John W. Bennett, H. J. Quincey, Spencer R. Atkinson, for plaintiff in error. J. B. Wall, solicitor-general, contra.
   Bloodworth, J.

(After stating the foregoing facts). Some of the .grounds of the motion for a new trial in this case contain much unnecessary matter. The ground as to continuance covers 34 pages. In Gate City Gas-Light Co. v. Farley, 95 Ga. 796 (23 S. E. 119), it is said that “Grounds of a motion for a new trial . . . which embrace utterly superfluous and unnecessary matter, such as lengthy colloquies between counsel on opposing sides, or between counsel and the court, tedious recitals of irrelevant facts, statements taken from the stenographic notes of the trial, and other like things, to such an extent as to bury the point in question under a great mass of entirely needless phraseeology and thus render it very difficult, if not impracticable, for this court to ascertain what was really the ruling or other conduct of the court complained of, will not be considered.” See also Henley v. Brockman, 124 Ga. 1059 (4) (53 S. E. 672); City of Atlanta v. Sciple, 19 Ga. App. 694 (92 S. E. 28). Under the facts of the instant case, as shown by the record, and under the qualifying note of the trial judge, which is copied in the foregoing statement of facts, we can not say that the ends of justice required a postponement of this case, or that the trial judge abused his discretion in refusing a continuance, or that he erred in refusing to declare a mistrial.

Grounds 3 and 4 of the amendment to the motion for a new trial present practically the same problem for solution, and will be considered together. A witness was called by the defendant and testified to the. character for violence of the deceased, saying it was bad. On cross-examination the witness testified: “The night Gallimore was so rough I started to tell about while ago, he run when he got a chance.” After the cross-examination counsel for the defendant said to the witness, “Go ahead and tell what he did on that particular occasion at the time you said he ran;” counsel then stating that the witness would testify, “in substance, that after the dispute about the overcoat he asked him if he was not afraid to dispute a white man’s word, and the negro replied by saying, No,’ that men were all the same to him, or words to that effect, and that the negro thereupon did draw his knife on him, and attempted to cut him, and that he struck him with his pistol and knocked him down, and shot at him as he was running off.” The court said, “I decline to admit that.” The solicitor-general had objected to the attorney for the defendant asking the witness about specific acts or particular instances of violence. This ruling was correct. The rule is that “evidence offered in a trial for murder to show the character of the deceased for violence will, as to the party making the attack, be confined to the reputation which the deceased bore in the community, and will not extend to specific acts. . . Any evidence depending on the knowledge of the witness, save what he has as to the reputation of the deceased, should be excluded.” Powell v. State, 101 Ga. 9 (1, b) 29 S. E. 309, 65 Am. St. R. 277). In Owens v. State, 120 Ga. 209 (47 S. E. 545), Justice Cobb said: “One’s character for peace or violence is established by general reputation, and a witness will not be permitted, on direct examination, to go further than state what was the general reputation of the person in question for peace or violence. The person calling such witness will not be permitted to inquire into specific acts of violence or particular habits which might throw light upon this question. On cross-examination, however, the witness may be sifted, and inquiry may be made into the conduct of the person on different occasions or as to his different habits.” In Andrews v State, 118 Ga. 1 (43 S. E. 852), Justice Lamar said: “The character for violence both of deceased and accused had been put in issue. The court properly refused to allow the defendant to prove specific acts of violence on the part of the deceased towards his wife. Ordinarily even the general character of the parties is inadmissible, and their conduct in other transactions is especially irrelevant. Civil Code [of 1895], § 5159 [Code of 1910, § 5745]. In a trial for murder the general character of the deceased for turbulence and violence may be shown, but specific acts are inadmissible. Pound v. State, 43 Ga. 128; Doyal v. State, 70. Ga. 147; Thornton v. State, 107 Ga. 687 [33 S. E. 673]. Qn the same principle the general character of a • witness for truth may he shown for the purpose of impeachment, but specific acts can not be made the subject of inquiry. (Civil Code, [of-1895], § 5293 [Code of 1910, § 5882]), and for the reason that every man is supposed to be able at a moment’s notice to establish his general character for truthfulness or peaceableness; but the best, as well as the worst, might often be unable to explain a single transaction requiring the presence, not of any one familiar with him, but only the eye-witnesses of that special transaction, in order to justify, explain, or excuse. The general character of the deceased for turbulence or violence can be shown by bis neighbors generally; the State and the accused alike are put on notice that such general character may become an issue in the trial. But no one was bound to anticipate that the specific instance inquired about would be made the subject of investigation. A specific act does not necessarily tend to establish one’s general character. The single transaction may have been exceptional, unusual, and not characteristic of the deceased. Where a witness has testified that one bears the character of being peaceable, it may sometimes be proper, on cross-examination, to inquire if the witness has not heard that'the man who he says was peaceable had in a particular case acted in a manner directly contrary to such reputation. Ozburn v. State, 87 Ga. 180 [13 S. E. 247]. But this line of questioning is intended solely to test the truthfulness of the witness, and not for the purpose of making an investigation of the other transactions. To allow proof of specific acts of violence would prolong the trial, multiply issues, and confuse the jury.” See Thornton v. State, 107 Ga. 683 (3), 687 (33 S. E. 673), and cases cited; Doyal v. State, 70 Ga. 134 (5), 147, and cases cited. The fact that on cross-examination the witness, without objection, testified that the deceased at the time in question “ran when he got a chance” would not alter this rule and allow counsel introducing him to prove specific acts of violence. “There can be no equation of errors in the trial of a case.” Stapleton v. Monroe, 111 Ga. 848 (2) (36 S. E. 428).

The 5th special ground of the motion for new trial alleges error as follows: “Because the following evidence on behalf of the State was admitted to the -jury over the objection of movant, to-wit: ‘He (movant) walked up there and just pulled the gun and stuck it up the negro’s neck, and Mr. Nasworthy called him over there and told him to come over there, that he would run off the music.’ (The foregoing testimony was delivered by Marvin Wash, a witness for the State, upon the trial of said case, and referred to a transaction between movant and a party other than the deceased, at a time prior to the killing of deceased.)” The objection urged at the time of the introduction of this evidence was -that it was irrelevant' and inadmissible. Every ground of a motion for new trial must be complete within itself, and show error without reference to other parts of the record. When and to what place was it that movant “walked up?” It is stated that it was “prior to the killing of deceased,” but how long prior? Under what circumstances did the movant pull the gun and stick it “up tliG negro’s neck?” Standing alone, the evidence to the introduction of which complaint is made in this motion is too indefinite for this court to say that its introduction was harmful to the cause of plaintiff in error. “Grounds of a motion for new trial which are incomplete, and can not be understood without resorting to an examina-, tion of the brief of 'evidence, fail to present any question for decision.” Copeland v. Ruff, 20 Ca. App. 217 (92 S. E. 955), and cases cited.

The 6th special. ground of the motion complains of the introduction by the Sfate of that portion of the defendant’s written motion for a continuance which follows: “Defendant shows that he expects to prove by said absent witness that he, the said John Bennett, was present when the difficulty occurred between Crockett Galloway- and this defendant, in which difficulty the said Crockett Galloway was killed, and defendant expects the said Bennett to swear that ripon that occasion the said Galloway walked upon this defendant’s feet, and when defendant remonstrated with him for so doing and asked him, the said Galloway, to desist from such conduct, the said Galloway cursed this ■ defendant for a ‘God damned white son of a bitch,’ and stated that he would cut his ‘God damn throat,’ and actually drew his knife and attempted to cut this defendant, and that this [defendant] then and only then shot the deceased in order to save his own life.” The only objection to this testimony was that it was inadmissible, irrelevant, and immaterial. Taking this evidence as it stands alone, we can not say that its nature is manifestly prejudicial to the cause of the plaintiff in error; and no attempt is made to point out in what respect it was harmful. In Brown v. State, 119 Ga. 572 (46 S. E. 833), Justice Lamar said: “An assignment of error must be complete in itself. ... If on its face manifestly prejudicial, or if the motion discloses in what way irrelevant testimony has been harmful, a new trial may be granted for its admission over objection. But mere irrelevancy is not sufficient to upset a verdict. Such evidence cumbers the record, sheds no light, gives no assistance, and prima facie is calculated to do no harm. If it does, the motion should disclose how it worked such a result.” See also Johnson v. State, 128 Ga. 71 (2) (57 S. E. 84).

The 7th special ground of the motion for a new trial is as follows: “Because the court, having admitted the portion of- the written motion .for continuance set out and complained of in the sixth ground' of this amendment, erred in refusing to admit in evidence the entire motion for continuance submitted by movant, a timely request that the whole record be admitted in evidence, if any portion of it was to be, having been submitted by counsel for movant, which request was denied by the court.” The court did not err in this ruling. “An assignment of error upon a ruling of, the court excluding evidence, which does not set forth the evidence literally or in substance, is too indefinite to present- any question for consideration.” Danner v. Johns, 147 Ga. 667 (95 S. E. 233); Lewis Mfg. Co. v. Davis, 147 Ga. 203 (93 S. E. 206); Deal v. Moseley, 147 Ga. 523 (5) (94 S. E. 1013); Maxwell v. Bucher, 127 Ga. 111 (56 S. E. 91); Johnson v. Thrower, 123 Ga. 706 (51 S. E. 636); Chamblee v. Farmers & Merchants Bank, 20 Ga. App. 527 (4) (93 S. E. 239); City of Atlanta v. Sciple, 19 Ga. App. 694 (92 S. E. 28), and cases cited.

Complaint is made in ground 8 of the motion for a new trial that the court, ex mero motu, twice interrupted counsel for the defendant in his concluding argument,- and alleges several reasons why these interruptions were erroneous. While the interruptions may have been unwarranted, and were doubtless annoying to counsel, we can not say they were harmful to the cause of his client. Indeed, if the interruptions of counsel by the court, and the colloquies between them which followed, had any effect on the jury, we are inclined to think it was beneficial to the cause of the defendant, for in both instances the judge finally admitted the correctness of the position of counsel, and each time allowed him to proceed as if no interruption had taken place. Nor can we believe that the interruptions of able and experienced counsel by the court could have'so disturbed “the line of argument of coun-' sel” that his address to the jury “may not have been as effective as . . if counsel had been permitted to pursue his line of argument without the unlawful and unwarranted interference of the court.” If there are any,dormant powers of eloquence in the speaker, such interruptions usually arouse them. “The lion sleeping in his lair when aroused by a wound fares forth with an angry roar, and woe to the other beasts, it matters not how powerful, that cross his path.” Moreover, if the conduct.of the trial judge appeared prejudicial to the cause of the defendant, a motion for mistrial should have been made. Perdue v. State, 135 Ga. 277 (69 S. E. 184); Harrison v. State, 20 Ga. App. 157 (6), 160 (92 S. E. 970), and cases cited.

Complaint is made of the refusal of the court to declare a mistrial because the solicitor-general in his concluding argument said, “The only thing we were able to get out of him [Marsh Wilcox] was that the negro ran.” The witness Marsh Wilcox had been introduced by the defendant to show the character for violence of deceased. On cross-examination the witness testified that on a certain occasion the deceased “ran when he got a chance.” In the enthusiasm of debate the solicitor-general used the language quoted above; but we do not think this error is of sufficient gravity to demand a new trial, especially as the judge, when he refused the motion to declare a mistrial, told the jury: “I will instruct the jury that they are to consider the evidence in the case as it has been delivered by the witnesses, and all other evidence as it has been admitted in the case.” While the court did not in express terms instruct the jury not to consider the statement of the solicitor-general, the effect of the instructions given was to eliminate it from the consideration of the jury. Besides, a statement made by an attorney in his argument to the jury will result in a mistrial only when the cause of the opposite party would be affected thereby. Justice Cobb, in Taylor v. State, 121 Ga. 348 (49 S. E. 303), said: “What the law forbids is the introduction into a ease, by way of argument, of facts not in the record and calculated to prejudice the accused.” Judge Russell, speaking for the court, in Moore v. State, 10 Ga. App. 805 (74 S. E. 315), said: “In our opinion, therefore, the question in every ease turns upon whether the nature of the argument is such that it is manifestly improper and prejudicial to the rights- of the opposite party. If the nature of the remark is such that it can plainly be seen that it could not have affected the result, the error would be harmless, and would afford no ground for a new trial. For this reason, if the argument was directed to some collateral matter not directly affecting the guilt or innocence of the accused in a criminal trial,'though the argument might be improper, the error would seem to be immaterial.” See Ellis v. State, 124 Ga. 91 (1), 93 (52 S. E. 147). In the instant case, as stated by Judge Lumpkin in McNabb v. Lockhart, 18 Ga. 495, 507, “The facts were rather overstated; not sufficiently so, however, to authorize a new trial on that ground.”

When considered in connection with the- entire charge, there is no error in the excerpt therefrom complained of in the 10th special ground of the motion for a new trial'.

The judge charged the jury as follows: “If you believe that he [the accused] was justified in taking the life of Crockett Gallimore, if such you find and believe to be the truth of the case beyond a reasonable doubt from the evidence in the case, that is, if you find and believe beyond a reasonable doubt that he did take the life of Crockett Gallimore, but you believe that he was justified in so doing, then you should acquit him.” After a clear, full, and fair charge covering all the issues of the case, the judge was charging on the forms of the verdict. After telling the jury under what conditions they should return a verdict of murder, or a verdict of murder with a recommendation to the mercy of the court, or a verdict of voluntary manslaughter, the judge said: “If you do not believe the defendant guilty of the offense of voluntary manslaughter, or if you entertain a reasonable doubt of his guilt of that offense, then you should acquit him.” Then followed that portion of the charge quoted above and alleged to be erroneous. The first clause of the sentence in the excerpt above is erroneous, but when in the same sentence the judge immediately adds, “that is, if you find and believe beyond a reasonable doubt that he did take the life of Crockett- Gallimore, but you -believe that he was justified in so doing, then you should acquit him,” the effect of this last clause, which, is a correct statement of the law, is to “specifically modify” the first and erroneous clause, and to render it harmless. The jury could clearly see that the judge was correcting the statement in the first clause, though he did not -in express terms so state. It will also be noted that the erroneous clause is immediately preceded, as well as immediately followed, by a correct statement of the law, and under these circumstances the jury could hardly have been misled by the erroneous statement.

The judge charged that “Flight, if any, and similar acts, if proven, from which an inference of consciousness of guilt may be drawn, may be considered by the jury, but flight is subject to explanation; the weight to be given to it, or whether the jury will draw an inference of consciousness of guilt, or not, is for the jury. It is for the jury to determine whether the flight of the defendant, if such has been proven, was due to a sense of guilt, or to other reasons. If from other reasons, no inference hurtful to the defendant must be drawn by the jury.” We find no error in the ' language of the judge, nor do we think it was error harmful to the defendant that the charge was given. It appears from this ground of the motion that it was contended by the State that flight had been shown, and this charge simply left the jury to determine whether or not flight had been proved, and if so, whether or not they would draw from it “an inference of consciousness of guilt;” and this charge could not have “amounted to an expression, of ' opinion on the part of the court that the defendant had fled, when in point of fact there was no evidence to ■ show that such was the Case.”

(a) The charge was not erroneous because the court did not instruct the jury what was meant by “and similar acts, if proven, from which an inference of consciousness of guilt may be drawn.”

There was evidence to support the verdict.

Judgment affirmed.

Broyles, P. J., concurs. Stephens, J., not presiding.


source: Caselaw Access Project

author: Bp.oylíís, P. J.

license: Public Domain

text:
    1001.
    Fountain v. The State.
   Bp.oylíís, P. J.

The only assignment of error in the bill of exceptions in this case is upon the refusal of the trial jud'ge to grant an application for bail, made by a defendant who had been convicted' of voluntary manslaughter, and who had pending in this court a bill of exceptions to a judgment overruling his motion for a new trial. This’ court having this day affirmed the judgment of the lower court refusing a new trial . in that case \Fountain v. State, ante, 113), the question raised in the present ease became moot.

Decided November 23, 1918.

Application for bail; from Ben Hill superior court—Judge Crum. July 27, 1918.

John W. Bennett, H. J. Quincey, for plaintiff in error.

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

Writ of error dismissed.

Bloodworth, J., concurs. Stephens, J., not presiding.


author: Broyles, P. J.

text:
    10055.
    Ray v. The State.
   Broyles, P. J.

1. Under repeated rulings of the Supreme Court and of this court, an excerpt from the charge of the trial judge which is correct in itself will not be considered erroneous because some other correct principle of law is not included therein or added thereto. In such a ease the motion for a new trial should asqign error, not upon the charge given, but upon the failure of the court to charge the other principle of law involved. Under this ruling the first special ground of the motion for a new trial is without merit.

2. The excerpt from the charge, set forth in the second special ground of the motion for a new trial, while in some particulars inaccurate, does not require a new trial of the case, the inaccuracy being beneficial instead of harmful to the accused.

3. None of the excerpts from the charge, as complained of in the 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, and 11th special grounds of the motion for a new trial, when considered in the light of the entire, charge and of the facts of the case, require a new trial. The instructions as a whole were full, fair, and as favorable to the defendant as he was entitled to under the law. See, in this connection, Mosley v. State, 11 Ga. App. 1 (2) (74 S. E. 569), and the statement of Chief Justice Bleckley in Brown v. Matthews, 79 Ga. 1 (1) 7 (4 S. E. 13).

4. A special ground of the motion for a new trial complains of certain questions asked a'witness for the State by the court, and of the answers elicited, on the ground that the questions and answers had a tendency to prejudice the movant’s cause with the jury, and indicated judicial disapproval of certain conduct of the defendant, disclosed by such examination. This ground of the motion, however, fails to show that the questions and answers were objected to at the time, or that there was a motion to exclude this evidence, or a motion for a mistrial of the case. Accordingly, under repeated rulings of this court, no question for adjudication is presented.

Decided November 23, 1918.

Conviction of manslaughter; from Cherokee superior court— Judge Morris. July 15, 1918.

John 8. Wood, George D. Anderson, for plaintiff in error.

Herbert Clay, solicitor-general, contra.

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

6. The verdict was authorized by the evidence, and the court did not err in overruling the motion for'a new trial!

Judgment-affirmed.

Bloodworth, J., concurs. Stephens, J., not presiding.


text:
    10075.
    McDonald v. The State.
    Decided November 23, 1918.
    Indictment for murder; from Calhoun superior court—Judge Harrell. August 17, 1918.

      A. L. Miller, for plaintiff in error.

      R. C. Bell, solicitor-general, F. A. Hooper, C. J. Taylor, contra.
   Broyles, P. J.

1. There was no error in instructing the 'jury upon the law of murd'er. Where one of two persons jointly indicted for murder has been convicted of voluntary manslaughter, the other can nevertheless be tried and convicted of murder. Bruce v. State, 99 Ga. 50 (25 S. E. 760) ; Maughon v. State, 9 Ga. App. 559 -(71 S. E. 922). Moreover, even if this charge were error, the defendant can not complain, since he was found guilty of voluntary manslaughter only.

2. The instruction upon the principle of mutual protection by parents and children was authorized by the evidence, and was distinctly favorable to the accused.

3. The evidence authorized the charge upon the law of voluntary manslaughter.

4. Where two persons are jointly indicted for murder, and the one actually doing the killing is guilty of voluntary manslaughter, the other defendant, if he was present, aiding and abetting in the killing, may be convicted as a principal in the second degree of the offense of voluntary manslaughter. Pope v. State, 13 Ga. App. 711 (79 S. E. 909).

5. None of the excerpts from the charge excepted to contains material error.

6. There was some' evidence authorizing the verdict, and, the trial judge having approved it, this court is without authority to interfere.

Judgment affirmed.

Bloodworth, J., concurs. Stephens, J., not presiding.


text:
    10076.
    McDonald v. The State.
    Decided November 23, 1918.
    Conviction of manslaughter; from Calhoun superior court— Judge Harrell. August 17, 1918.

      A. L. Miller, for plaintiff in error.

      R. C. Bell, solicitor-general, F. A. Hooper, C. J. Taylor, contra.
   Broyles, P. J.

1. The charge upon the law of voluntary manslaughter was authorized by the evidence.

2. The verdict was amply supported by the evidence, and the’ court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworth, J., concurs. Stephens, J., not presiding.


text:
    10094.
    BUSH v. THE STATE.
    Decided November 23, 1918.
    1. While in every criminal case, where it is sought to show the guilt of the defendant by circumstantial evidence alone, the jury should be instructed and cautioned that he should not be convicted on circumstantial evidence, unless the proved facts exclude every possible reasonable hypothesis save the guilt of the defendant, still it is immaterial what language is employed to convey this instruction, if all possible hypotheses arising from the circumstantial evidence which are favorable to the defendant be presented in concrete statement to the jury, and the jury are told that if they believe any one of these hypotheses the defendant should be acquitted. This rule is substantially complied with where, as in the present ease, only two inferences can be drawn from the evidence,—the one of innocence, and the other of guilt,—and the hypothesis . consistent with innocence is fully and fairly stated to the jury, and the jury are instructed that if they are satisfied that the hypothesis consistent with innocence is true, or if they have a 'reasonable doubt as to its truth, the defendant should be acquitted. Mangum v. State, 5 Ga. App. 445 ( 2) (63 S. E. 543); Barrow v. State, 80 Ga. 191 (3) (5 S. E. 64) ; Richards v. State, 102 Ga. 569 (27 S. E. 726) ; Jones v. State, 105 Ga. 649 (31 S. E. 574).
    2. While some of the excerpts from the charge which are complained of are subject to criticism, none of them, when considered in the light of the entire charge and of the facts of the case, requires a new trial.
    Accusation of possession of intoxicating liquor; from city court of Macon—Judge Guerry. July 29, 1918.

      W. A. McClellan, John R. Cooper, E. W. Butler for plaintiff in error.

      Will Gunn, solicitor, contra.
   Broyles, P. J.

The .defendant was charged with having, con- . trolling, and possessing alcoholic liquors. The undisputed evidence showed that a large quantity (about three, hundred pints)’ of whiskey was found in a locked closet in the defendant’s private home. The sole defense was that this whisky was in the closet of a room which his wife had rented to a “Mr. and Mrs. Hattaway of Atlanta,” and that he (the defendant) knew nothing of its presence in his home,-and that it must have been put and kept there by Hattaway. The judge in his charge gave the defendant the full benefit of this defense, by fully instructing the jury upon the law as to the burden of proof, the presumption of innocence, reasonable doubt, and the defendant’s statement, and by concretely charging them, in substance, that if they found from the evidence and all the facts and circumstances in the case that Hattaway had the possession of the whisky found in the defendant’s home, and had put it there and kept it there without the knowledge, consent, or acquiescence of the defendant, the defendant should be acquitted. It follows from these facts, and the ruling stated in the first headnote, that the court did not err, in the absence of a timely written request, in failing to give in charge to the jury section 1010 of the Penal Code, as to circumstantial evidence. .

The conviction of the defendant was amply authorized by the evidence; no reversible error of law appears; and the court did not err in refusing the grant of a new trial.

Judgment affirmed.

Bloodworth, J., concurs. Stephens, J., not presiding.'


author: Bloodworth, J.

text:
    9723.
    Blalock v. Farkas.
    Decided December 3, 1918.
    Complaint; from city court of.Albany—Judge Clayton Jones. April 11, 1918,

      R. J. Bacon, R. H. Ferrell, for plaintiff in error.

      Milner & Farkas, contra.
   Bloodworth, J.

Grounds 4, 5, and 6 of tlie motion for a new trial are but amplifications of the general grounds; and ground 7 .is without merit. There is ample evidence to sustain the verdict.

Judgment affirmed.

Broyles, P. J., concurs. Stephens, J., not presiding.


text:
    9802.
    Weeks v. Reliance Fertilizer Company.
    Decided December 3, 1918.
    Levy and claim; from Colquitt superior court—Judge Thomas. May 4, 1918.

      R. A. Hendriclcs, John A. Wilkes, for plaintiff in error.

      James Humphreys, Eagan & Maire, Franklin & Langdale, contra.
   Bloodworth, J.

1. “Where personal property 3s claimed by a third person, and the claim-affidavit and bond recite that it has been levied on, the claimant is estopped from saying the levy was not complete.” Cohen v. Broughton, 54 Ga. 296. See Scolly v. Butler, 59 Ga. 849 (2) ; Pearce v. Renfroe, 68 Ga. 194 (5a) ; Smith v. Camp, 84 Ga. 117 (7) (10 S. E. 539) ; Stroud v. Hancock, 116 Ga. 336 (42 g. E. 496) ; Oliver v. Warren, 124 Ga. 551 (53 S. E. 100, 4 L. R. A. (N. S.) 1020, 110 Am. St. R. 188), and cit. The pr-inciple announced in these decisions disposes of grounds 1%, 2, 3, 6, and 7 of the amendment to the motion for a new trial.

2. “A ruling of the court in sustaining or overruling a. demurrer, and in allowing or disallowing an amendment to pleading, can not be made the ground of a motion for a new trial; ’but direct exceptions should be filed to such ruling, if a review of it is to be had'.” Hawkins v. Studdard, 132 Ga. 265 (63 S. E. 852, 131 Am. St. R. 190). See Leathers v. Leathers, 132 Ga. 211 (2) (63 S. E. 1118); Brown v. Wilkes, 20 Ga. App. 92 (92 S. E. 553), and eases cited. This ruling disposes of grounds 4 and 5 of the amendment to the motion for a new trial.

3. “Where property has been levied on and a claim interposed, the claimant can not, for the purpose of protecting the property, show paramount title in a third person.” Rowland v. Gregg, 122 Ga. 819 (1), 821 (50 S. E. 949), and cases cited. This proposition disposes of ground 10 of the amendment to the motion for a new trial.

4. “This court can not consider exceptions to the refusal of the trial judge to comply with written requests to charge, unless it is made to appear that they were tendered to the court before the jury retired to consider the ease. Shirley v. Slate, 5 Ga. App. 611 (63 S. E. 583). In this ease it is not disclosed that the written requests to charge were so tendered.” Seaboard Air-Line Railway v. Barrow, 18 Ga. App. 261 (4) (89 S. E. 383); Civil Code (1910), § 6084; Dickey v. Grice, 110 Ga. 315 (2) (35 S. E. 291).

5. While there may be slight errors of statement, and some inaccuracies of 'expression, in the excerpts from the charge of the court of which complaint is made, they are not of such a character as would likely influence the jury in making a verdict. A new trial should not be granted on account of slight errors and inaccuracies of expression not calculated to mislead the jury.

7. None of the other alleged errors require the grant of a new trial.

Judgment affirmed.

Broyles, P. J., concurs. Stephens, J., not presiding.


text:
    9920.
    Williams v. The State.
    Decided December 3, 1918.
    Indictment for murder; from Walton superior court—Judge Cobb. May 15, 1918.
    1. In the motion for a new trial the charge of the' court on the law of manslaughter was complained of on the ground that the evidence did not authorize instructions on that subject.
    3. The 5th ground of the motion was: “That the court erred in excluding from the jury the following evidence of J. L. Gibson, a witness for the defendant, to wit: Question: ‘Mr. Gibson, where did you first see Paul Williams [the defendant] after this crime was committed?’ ‘He came up here and gave himself up.’ This evidence was objected to by the solicitor-general and was ruled out by the court, as a self-serving declaration; which the movant contends was error and harmful to the defendant; defendant’s counsel stating that it was offered for the purpose of showing that the defendant surrendered^ himself to the deputy sheriff, Mr. Gibson, the witness, before a warrant was issued for him.”
    3. . On the subject of flight the court charged the jury as follows: “Plight of one accused of crime, if shown to the satisfaction of the jury beyond a reasonable doubt, may be considered by the jury, for the jury to determine whether, undfer all the circumstances, an inference of conscious guilt should be drawn from such flight, if proven. But flight is subject to explanation, .and the weight to be given it, and whether the jury will draw an inference of consciousness of guilt or not, is for the jury. It is for the jury to determine whether the flight of the defendant, if flight has been shown by the evidence, was due to a sense of guilt or to other reasons; and if the.jury are satisfied that-flight has been shown, but that it was due to other reasons than a consciousness of guilt, then no prejudicial inference should be drawn by the jury from such, flight.” In the motion for a new trial it is contended that “the evidence was not sufficient to justify this charge to the jury, and the same was harmful to the defendant.”
   Broyles, P. J.

1. The evidence submitted in behalf of the accused amply authorized the charge of the court upon voluntary manslaughter.

2. As presented by the 5th ground of the motion for a new trial, the ex elusion of the testimony set out therein -was not error.

3. Under the facts of the case the charge of the court upon the subject of flight was not error.

4. The verdict finding the accused gujlty of voluntary manslaughter was authorized by the evidence, and the court did not err in refusing to. grant a new tidal.

Judgment affirmed'.

Bloodworth, J., concurs. Stephens, J., not presiding.

Orrin Roberts, for plaintiff in error.

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


text:
    9951.
    Smith v. The State.
    Decided December 3, 1918.
    Accusation of possession of intoxicating liquor; from city court of Dublin—Judge Flynt. June 4, 1918.

      W. A. Dampier, for plaintiff in error.

      S. P. New, solicitor, contra.
   Broyles, P. J.

"1. Upon the trial of a misdemeanor ease in the city court of Dublin the defendant, before arraignment and before pleading to the merits of the case, has a right to demand a jury of twelve, but he has not the right to demand a'panel of twenty-four jurors from' which to strike the jury. 6a. Laws, 1904, pp. 140-144, sec. 4 (p. 143). See also, in this connection, Conyers v. Graham, 81 Ga. 615 (4) (8 S. E. 521); Mattox v. State, 115 Ga. 212, 214 (41 S. E. 709). Under this ruling the amendment to the motion for a new trial is without merit.

2. The general grounds of the motion for a new trial, not having been referred to in the brief of counsel for the plaintiff in error, are treated as abandoned. . •

Judgment affirmed.

Bloodworlh, J., concurs. Stephens, J., not presiding.


text:
    9990.
    Melton v. The State.
    Decided December 3, 1918.
    Indictment for manufacture of intoxicating liquor; from Randolph superior coiirt—Judge Worrill. June 22,1918.

      C. W. Worrill, M. C. Edwards, for plaintiff in error,

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

1. None of the several excerpts from the charge of the court, excepted to, when considered in connection with the entire charge, contains reversible error.

2. The court did not err in admitting in evidence the distilling apparatus found on the defendant's premises.

3. The verdict was amply supported by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworth, J., concurs. Stephens, J., not presiding.


text:
    10006.
    Tolliver v. The State.
    Decided December 3, 1918.
    Indictment for burglary; from Bibb superior court—Judge Mathews. July 15, 1918.

      John R. Cooper, for plaintiff in error.

      John P. Ross, solicitor-general, contra.
   Broyles, P. J.

1. There is no material error in any of the excerpts from the charge of the court, excepted to, when considered in connection with the entire charge.

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

Judgment affirmed.

Bloodworth, J., concurs. Stephens, J., not presiding.


text:
    10007.
    Tolliver v. The State.
    Decided December 3, 1918.
    Indictment for breaking and entering railroad-car; from Bibb superior court—Judge Mathews. July 15, 1918.

      John R. Cooper, for plaintiff in error.

      John P. Ross, solicitor-general, contra.
   Broyles, P. J.

1. There is no material error in the excerpt,from the charge of the court, exeepted' to, when it is considered in the light of the charge as a whole.

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

Judgment affirmed.

Bloodworth, J., concurs. Stephens, J., not presiding.


text:
    10014.
    Swann v. The State.
   Broyles, P. J.

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

2. The charge of the court upon the doctrine of reasonable doubt was sufficiently full. '

3. None of the other instructions excepted to, when viewed in the light of the charge as a whole, contains material error.

4. The alleged newly discovered evidence was cumulative and was not of such a character as would probably cause a different verdict upon another trial.

5. Under the facts of the case the other special grounds of the motion for a new trial are without merit.

Decided December 3, 1918.

Conviction of manslaughter; from Meriwether superior court— Judge Terrell. July 10, 1918.

N. F. Culpepper, McLaughlin & Jones, W. I. Heyward, H. A. Allen, for plaintiff in error.

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

6. The verdict was amply authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworth, J., concurs. Stephens, J., not presiding.


text:
    10021.
    Jester v. The State.
    Decided December 3, 1918.
    Indictment for larceny of automobile;' from Fulton superior court—Judge Hill. July 13, 1918.

      Harvey Hill for plaintiff in error.

      John A. Boykin, solicitor-general, E. A. Stephens, contra.
   Broyles, P. J.

1. “Whether an explanation which the accused makes of his possession of property recently stolen'is consistent with hjs innocence is exclusively a question of fact for determination by the jury, and this court has no right to interfere with that determination, unless it is wholly unsupported by the evidence, or by any reasonable theory deducible therefrom.” Jordan v. State, 9 Ga. App. 578 (3) (71 S. E. 875). Under all the particular facts of the instant case the jury were authorized to disregard the explanation of the accused as to how he came into possession of the stolen, automobile.

2. The verdict was authorized by the evidence, and no substantial merit appears in .-any of the special grounds of the motion for a new trial.

Judgment affirmed.

Bloodworth, J., concurs. Stephens, J., not presiding.


author: Broyles, P. J. “George, J.

text:
    9297.
    FIDELITY & DEPOSIT COMPANY OF MARYLAND v. THE STATE OF GEORGIA et al.

    1. The act of 1898 (Acts 1898, p. 41; Civil Code of 1910, § 112), which provid'es that “Where the tax-collector of any county is succeeded by another, the outgoing collector shall make final settlement with the State and county for the taxes levied and chargeable for the year for ’ which he was elected, and for the collection of which he has given bond; the incoming collector being charged,and responsible only»with the collection of the taxes due for the years for which he is chosen and bonded,” applies only when the tax-collector is succeeded by another, and has no application where the collector is succeeded by himself.

      Decided December 13, 1918.
    2. The failure to pay over taxes collected By a tax-collector, and not the date of the collection, constitutes the breach of his official bond.
    Affidavit of illegality; from Jenkins superior court—Judge H. C. Hammond. September 10, 1917.

      W. Van Tyler, Little, Powell, Smith & Goldstein, for plaintiff in error.

      Clifford Walker, attorney-general, A. S. Anderson, contra.
   Broyles, P. J.

Certain questions involved in this case were certified by this court to the Supreme Court, and on November 15, 1918, the Supreme Court handed down a decision thereon, holding as is set forth in the headnotes above. In addition, the following opinion was rendered:

“George, J.

The several questions certified by the Court of Appeals are covered by the answer to one of them. Prior to the act of 1898 (Acts 1898, p. 41, Civil Code of 1910, § 112) it was held that an execution issued by a tax-collector after’ his term of office had expired and his successor had qualified was not a legal process. Skinner v. Roberts, 92 Ga. 366 (6) (17 S. E. 353). The effect of this ruling is that prior to the act of 1898 it was not the official duty of a tax-collector, nor did he have the power, to col- - lect State and county taxes after his term of office had expired and after his successor had qualified, although such taxes were levied and had accrued before the expiration of his term of office. By the act of 1898 (which amended section 98 of the Political Code of 1895), fixing the terms of office of county officers, it was provided, ‘That where the tax-collector of any county is succeeded by another, the outgoing collector shall make final settlement with the State and county for the taxes levied and chargeable for the year for which he was elected, and for the collection of which he has given bond; the incoming collector being charged and responsible only with the collection of the taxes due'for the years for which he is chosen and bonded.’ With respect to a tax-collector who succeeds himself, the act in question worked no change in the existing law. Such collector, after he had qualified for his new term of office, was charged with the duty and clothed with the power to collect and make final settlement with the State and county for any taxes levied and due during his preceding term of office. In Wilson v. Wright, 83 Ga. 38 (3), 44 (9 S. E. 834), decided prior to the act of 1898, a case in which the collector had succeeded himself, it was ruled: Gf the tax-collector received the taxes in question while acting under his bond for 1885-6, it seems that the securities on that bond would be liable for the amount so received, but not so liable if they were received under his bond for 1887-8/ The act of , 1898 did not in terms deal with the obligation of the sureties upon the official bond of the tax-collector. The liability of his sureties was in all respects the same as the liability of the tax-collector himself. The liability of the sureties is in no respect broader-than the liability of the principal. The liability of the sureties is limited to á breach of official duty by the principal. It was not, prior to the passage of the act of 1898, any part of the official duty of a tax-collector, after his term of office had expired, and after his successor had qualified, to collect the taxes due the State and county which had been levied and which had accrued before the expiration of his term of office The act of 1898 made it the duty of the tax-collector, only where he is succeeded by another, to make, final settlement with the State and county for the taxes levied and chargeable for the year for which he was elected, and for the collection of which he has given bond. The incoming tax-collector is by that act relieved of this duty of collecting such taxes only where he succeeds another. It is the failure to pay over the taxes collected, arid not the date of the collection, which constitutes the breach of the bond.”

It clearly appears from the foregoing opinion that the failure of a tax-collector to pay over, at the time required by law, taxes collected by him, constitutes the breach of his official bond; and in such a case the breach does not extend back to the date of the accrual of the taxes, nor even to the date of their collection, but the date of the breach is the time when he should have paid over the taxes, and not the time of their accrual or collection. Under' the ruling of the Supreme Court that the act of 1898 (Civil Code of 1910, § 113) has no application where a tax-collector is succeeded by himself, the defaulting tax-collector in the instant case (who succeeded himself in office, pmd who, after his new term of office had begun, and after Ti’is new bond had been executed, misappropriated certain taxes which had accrued during his first term, and which he had collected after the beginning of his second term) committed a breach of his official duty, and therefore a breach of hihbond, subsequently to the giving of his new bond, and accordingly 'the sureties on that bond, and not the surety on the old bond, were liable for the shortage.'

It follows that the trial judge, passing, by consent, without the intervention of a jury, upon all issues both of law and fact, erred in finding against the affidavit of illegality filed by the Fidelity & Deposit Company of Maryland (the surety on the old bond), as set forth in his order.

Judgment reversed,.

Bloodworth, J., concurs. Stephens, J., not. presiding.


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

text:
    9804.
    Shore Lumber Company v. American Lumber & Export Co.
    Decided December 13, 1918.
   Broyles, P. J.

1. The court did not err in overruling the demurrers to the amended petition. The contract on which .the suit was based, and which called for a definite number of “large” carloads of lumber of a certain kind and size at a specified price per thousand feet, was not too indefinite and uncertain to be. enforced, it appearing, as alleged in the plaintiff’s petition, that “a large carload of lumber, according to .the custom of the lumber business or trade,.means any available freight-car loaded to its fullest capacity, and is a term frequently used and so understood in the lumber business.” Farmers Oil & Guano Co. v. Southern Refining Co., 10 Ga. App. 415 (73 8. E. 350) ; Thompson v. Strong (Ala.), 74 So. 34 (4); Holland-Cook Mfg. Co. v. Consolidated Wagon &c. Co., 49 Utah, 43 (161 Pac. 922); Kirwan v. Van Camp Packing Co., 12 Ind. App. 1 (39 N. E. 536). The decision in Stewart v. Cook, 118 Ga. 541 (45 S. E. 398), and the other cases cited by counsel for the plaintiff in error, are not controlling in the present case.

2. Under the facts of the case the court did not err in disallowing the proffered amendment to the defendant’s answer. .

3. No material error was committed on the trial of the case. The defendant offered! no testimony. There was no conflict in the plaintiff’s evidence, which proved the case as laid. The petition and the evidence showed that the lumber ordered by the plaintiff was for resale to its customers, that this fact was known to the defendant, and that, after the defendant had breached the contract, the plaintiff, after due notice to the defendant of its intention, bought the lumber at the lowest market price (which was, however, higher than the contract price), and sued the defendant for the difference between that price and the contract price. Under (these facts the court did not err in directing a verdict for the plaintiff for the full amount sued for.

Judgment affirmed.

Bloodworth, J., concurs. Stephens, J., not presiding.

Action for damages; from city court of Quitman—Judge Long. April 9, 1918.

Branch & Snow, for plaintiff in error.

Bennet & Harrell, contra.

Bloodworth, J.,

concurring specially.

Under the facts of this case the verdict seems to accord with substantial justice; and while in doubt as to some of the rulings in the headnotes, yet, as the burden of showing error is upon the plaintiff in error, I concur in the judgment of affirmance. .


author: Bloodworth, J. Bloodworth, J.

text:
    9813, 9814.
    TWYMAN v. AVERA LOAN AND INVESTMENT COMPANY; and vice versa.

    Decided December 14, 1918.
    Rehearing denied Eebrtjajiy 11, 1919.
    Complaint; from Twiggs superior court—Judge Kent. April 30, 1918.

      L. D. Moore, for plaintiff in error.

      B. J. Fowler, contra.
   Bloodworth, J.

The following cases support the general proposition that “One who executes and delivers a promissory note without reading or knowing its contents can not avoid liability thereon because he acted ignorantly, without showing some justification for his ignorance, either by reason of his inability to read' or by some misleading device or contrivance amounting to fraud on the part of the person with whom he was dealing,” Barnes v. Slaton Drug Co., 21 Ga. App. 580 (94 S. E. 896); Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (2), 516 (94 S. E. 892) ; Levy v. Miles F. Bixler Co., 20 Ga. App. 766 (93 S. E. 233); Sloan v. Farmers &. Merchants Bank, 20 Ga. App. 123 (a), 125 (92 S. E. 893) ; Parker v. Parish, 18 Ga. App. 258 (2) (89 S. E. 381) ; Bostwick v. Duncan, 60 Ga. 384; Radcliffe v. Biles, 94 Ga. 480 (20 S. E. 359); Jossey v. Ga. So. &c. Ry. Co., 109 Ga. 439, 446 (34 S. E. 664); Walton Guano Co. v. Copeland, 112 Ga. 319 (1), 320 (37 S. E. 411, 52 L. R. A. 268) ; Georgia Medicine Co. v. Hyman, 117 Ga. 851 (45 S. E. 238) ; Harrison v. Wilson Lumber Co., 119 Ga. 6 (2), 8 (45 S. E. 730) ; Stoddard Mfg. Co. v. Adams, 122 Ga. 802 (50 S. E. 915) ; Rounsaville v. Leonard Mfg. Co., 127 Ga. 735 (2) (56 S. E. 1030) ; Baker v. Patton, 144 Ga. 502 (87 S. E. 659). Applying the rulings in these cases to the facts of the instant case, the court did not err in directing a verdict for the plaintiff:

Judgment on main bill of exceptions affirmed; cross bill dismissed.

Broyles, P. J., concurs. Stephens, J., not presiding.

ON MOTION TOR REHEARING.

Bloodworth, J.

The motion for rehearing in this case is based upon the ground that the court overlooked the following evidence of the defendant: “He just handed me the deed and the other papers and said/ ‘Sign here, right here;’ and I thought I was signing a receipt for the deed. . . He did not read to me this paper: I did not read the paper. Mr. Walker did not read it to me. I could not read it. No one read it to me.” The court did not overlook the above-quoted evidence. It is a well-established principle of law that where the evidence of a party “bears two constructions, the one less favorable to his interest should be adopted.” Burkhalter v. Oliver, 88 Ga. 473 (14 S. E. 704); Baggett v. Trulock, 77 Ga. 369 (3) (3 S. E. 162); Southern Railway Co. v. Hobbs, 121 Ga. 428 (49 S. E. 294); Horne v. Peacock, 122 Ga. 45 (2) (49 S. E. 722). In Western & A. R. Co. v. Evans, 96 Ga. 481 (23 S. E. 494), Justice Lumpkin said: “A party testifying in his own favor has no right to be intentionally or deliberately self-contradictory; and if he is so, the courts are fully justified in taking against him that version of his testimony which is most unfavorable to him. Being peculiarly in a position to state fairly and definitely the facts which he professes to know, he is under a duty of so stating them as to give a candid and intelligible account of what occurred. The courts are also authorized to give great weight to statements unwillingly made upon cross-examination, when these statements have every appearance of being the real truth, though reluctantly told.” On cross-examination the defendant said: “I can write and read the English language. I can write some and read a little bit—nothing to amount to anything.” In the evidence there is nothing to show that the defendant made any effort to read the note and found that he could not do so, or that at the time he signed it there existed any emergency which would excuse his failure to read, or that his failure to read was brought about by any “misleading artifice or device perpetrated by the opposite party, amounting to actual fraud such as would reasonably prevent him from reading it-.” On the contrary, it clearly appears that he signed the note upon presentation, without apprising himself of its contents otherwise than by accepting statements with reference thereto made by the representative of the opposite party, and between whom and himself there existed no fiduciary or confidential relation. See Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (2) (94 S. E. 982), and other cases cited in the opinion in the instant case.

Rehearring denied.

Broyles, P. J., concurs. Stephens, J., not presiding.


text:
    9536.
    Earnest v. The State.
    Decided January 9, 1919.
    Indictment for misdemeanor; from Ben Hill superior court—•. Judge Crum. January 22, 1918.

      James H. Dodgen, Otis H. Elkins, for plaintiff in error.

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

“Where one lias been convicted and sentenced in a erim-

inal case and has made a motion for a new trial, he can not, while the motion is still pending and undisposed of in the lower court, maintain a bill of exceptions assigning error upon the refusal of the court to set aside the sentence and judgment, the motion to set aside being based on an- alleged error committed at the. trial that entered into and . affected the judgment, viz., that the sentence and judgment were passed and signed while the defendant was absent from the court-room. If the motion to set asid’e should be sustained, it would not affect the .verdict or terminate the cause. Civil Code, § 6138; Duke v. Story, 113 Ga. 112 (38 S. E. 337) ; Duncan v. Duncan, 145 Ga. 424 (89 S. E. 486);. Durrence v. Waters, 140 Ga. 762 (79 S. E. 841). The ruling here made does not in any way conflict with the decision in May v. Collins, 118 Ga. 243 (44 S. E. 1002), which dealt with á motion’ in arrest of judgment, which is a separate cause from the main case and must be predicated on a defect, not amendable, which appears on the face 5f the record or pleadings. Civil Code, § 5957.” This ruling was . made on December 12, 1918, by the Supreme Court (148 Ga. 632, 97 S. E. 672), in response to a question certified by this court; and under it the writ of error is

Dismissed.

Bloodworth and Stephens, JJ., concur.


author: Stephens, J.

text:
    9776.
    Bragg v. The State.
   Stephens, J.

1. Where a witness testified that ho approached the defendant and made inquiry of him as to where witness could obtain some whisky, that the defendant replied that lie himself had none, but pointed out a negro from whom he thought some could be obtained', that this negro had sometime before offered to sell him" some, that witness gave the defendant some money with which to see this negro and get for witness the whisky, that the defendant returned in a short while and told witness that-the whisky could be found in a certain . place, and upon witness going to the place designated he found some r whisky, this evidence, under the repeated rulings' of this court, was sufficient to authorize the jury to infer that the defense set up by the defendant, that he was acting purely as an- agent of the purchaser to procure said whisky, was a s.ubter-fuge, and that the defendant was himself making the sale,, or assisting the negro to make it. The evidence was therefore sufficient tó authorize the jury to convict the dev fendant of the offense of selling intoxicating liquors.

Decided January 9, 1919.

Accusation of sale of liquor; from city court of Sylvania—Judge Evans. April 13, 1918.

H. S. While, for plaintiff in error.

A. B. Lovell, solicitor, contra.

2. The special grounds of the motion for new trial are absolutely without merit.

Judgment affirmed.

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


text:
    9819.
    Stewart v. The State.
    Decided January 9, 1919.
   Stephens, J.

1. Where a defendant is indicted for the larceny of an ' automobile, the charge in detail being that he did take and carry away with intent to steal, etc., “one seven-passenger automobile Overland” of a certain designated number and model, and the evidence shows that ' the automobile was a “seven-passenger Wyllis-Overland” of the same number and mod'el as alleged in the indictment, the description in the evidence conforming in every detail with that contained in the indictment, except that the indictment alleges “Overland” when the proof shows the automobile to have been a “Wyllis-Overland,” there is no such variance between the charge and the proof as would amount to a failure of the evidence to sustain the charge set out in the indictment. In the absence of proof that an “Overland” and a “Wyllis-Overland” are separate and distinct types of automobiles; the word “Overland” will be taken as generic and generally descriptive of a certain type of automobile, and the word “Wyllis”'will be taken as an adjective describing specifically a particular species of automobile. It follows, therefore, that where an indictment alleges generally that the. automobile stolen was an “Overland” of a certain number and model, this allegation is sustained by evidence to the effect that the automobile claimed 'to have been stolen was a particular kind of Overland, such as a “Wyllis-Overland.” '

2. The failure on the part of the trial judge' to define simple larceny, or larceny, in his charge to the jury is not' error, in the absence of a timely written request so to do, when the charge as a whole correctly and properly states the law applicable to the case..

3. The evidence, while circumstantial, was sufficient to authorize the- jury to find the defendant guilty, and the jury having so found, and their ■ verdict having been approved by the trial judge, this court will not • disturb their' finding.

Judgment affirmed.

Broyles, P. J., concurs. Bloodworth, J., concurs diibitante.

Indictment for larceny; from Laurens superior court—Judge Kent. May 10, 1918.

W. A. Dampier, for plaintiff in error.

E. L. Stephens, solicitor-general, contra.


text:
    9948.
    Hamp, alias Hamilton, v. The State.
    Decided January 9, 1919.
    Indictment for violation of prohibition law; from Jasper superior court—Judge Park. June 14, 1918.

      Greene F. Johnson, for plaintiff in error.

      Doyle Campbell, solicitor-general, contra.
   Bloodworth, J.

The motion for a new .trial in this ease contains the general grounds only. ■ There is some evidence to support the verdict, which has' the approval of the trial judge, and this court will not interfere.

■Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.


text:
    9950.
    Smith v. The State.
   Broyles, P. J.

1. The defendant was charged with manufacturing whisky in 1916 (which oifense was then a misdemeanor),'and was convicted of an attempt to manufacture the same. The question of law raised by the 4th, 6th, 8th, and 9th grounds of the motion for a new trial was decided adversely to, the contentions of the plaintiff in error, in Leverett v. State, 20 Ga. App. 748 (93 S. E. 232), upon a state of facts substantially identical with those sub judice, and growing out of the same transaction.

2. The excerpt from the charge of the court, complained, of in the 5th ground of the motion for a new trial, upon the subject of principals in the first and second degrees, was not technically accurate, since all persons aiding and abetting in the commission of a misdemeanor are principals, and in misdemeanors there are no principals in the “first” or “second” degree. Under the facts of the case, however, this inaccuracy affords no cause for a new trial.

3. In the absence of a timely written request, the trial judge, 'in his charge to the jury, did not err in not describing or defining “the nature and character of the acts essential and necessary for this movant to commit in order to render him guilty of an attempt to manufacture whisky illegally, as distinguished from the nature and character of those acts which, were merdly preparatory, and would not authorize the jury to find the movant guilty of any offense.”

Decided January 9, 1919.

Indictment for misdemeanor; from Jasper superior court— Judge Park. June 14, 1918.

Greene F. Johnson, for plaintiff in error.

Doyle Campbell, solicitor-general, R. B: Russell, contra.

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

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


text:
    9949.
    Leverett v. The State.
    Decided January 9, 1919.
    Indictment for manufacture of liquor; from Jasper superior court—Judge Park. June 14, 1918.

      Greene F. Johnson, for plaintiff in error.

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

1. The defendant was charged with manufacturing whiskyin 1916, which offense was then a misdemeanor, and convicted of an attempt to manufacture the' same. The offense, charged being substantially the same as the offense charged in the case of 'Smith v. State, ante, 140, and growing out of the same transaction, the assignments of error raised in the 5th, 6th, 7th, 11th, and 12th grounds of the motion for new trial are disposed of in the first and second divisions of that decision. See also Leverett v. State, 20 Ga. App. 748 (93 S. E. 232).

2. There being evidence tending to show a confession on the part of the defendant, it was not error for the court to charge the law relative to confessions, and the assignment of error set out in the 4th ground of the motion for new trial is therefore without merit.

3. There is no merit in the exceptions taken to the charge of the court as set Out in the 8th and 10th grounds of the amendment to the motion for new trial, nor is there any merit in the exception taken to the ■ failure of the court to charge as set out in the 9th ground of said motion.

4. The charge of the court fairly submitted the ease to the jury, and there being evidence to support the verdict, the court did not err in overruling the motion for new trial.

Judgment affirmed.

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


text:
    10117.
    Kennedy v. The State.
   Broyles, P. J.

The evidence in this case, connecting the defendant with the possession or control of. the whisky found outside bis restaurant, was wholly circumstantial, and was insufficient to exclude every reá- . sonable hypothesis save that of his guilt. It follows that the court erred in overruling the motion for a new trial.

Decided January 9, 1919.

Indictment for misdemeanor; from Floyd superior court—Judge Wright. September 24, 1918.

The indictment charged the defendant with having control and possession of intoxicating liquors. From the evidence it appeared that in a three-story building divided into two sections by a hall running through the center, and occupied by a number of tenants, the defendant had a restaurant “on the lower floor of the left section.” Police officers found behind the restaurant and on a table against the wall’at the rear door a half-gallon fruit-jar containing whisky, and, just above this table and on a concrete .embankment, . a quart-bot.tle containing “a mixture of something like cider and whisky,” wrapped in an old pair .of'trousers. A cement wall about five or six feet high and about three or four feet from the rear end of the building runs along at the back, and there is an opening in the center of the building by which all tenants can use the rear part where the whisky was found. An undertaker’s establishment and a pressing club occupy the'section opposite that occupied by the defendant, and doors from these places as well as from the center hall open on the space back of the building. The table on , which the whisky was found was just outside a door of the defendant’s restaurant, and on it were several coca-cola bottles. A" cook employed in the restaurant testified: “The table just outside of the door of the restaurant ... is his [the defendant’s] table, and we use it in connection with the restaurant, to put coca-cola bottles, milk bottles> and other things- on. . . No one else uses this table. The public used the rear part of the building, where the table was, as well as the cement part to the rear. All the occupants of these two upper stories use the back part of the building, as-well as tenants in the undertaker’s parlor, and negro pressing club, as do also the patrons of these tenants. The public use the back part of the building throughout the day and night. You can go through the building from the street; ' . . it stays open all the time. There is a toilet in the rear . . which is used • tenants, patrons of tenants, and the public. The defendant uses half-gallon fruit-jars in the restaurant for the purpose of keeping ■milk in them.” . The defendant'was away from the restaurant from about four o’clock in the afternoon until nine o’clock at' night, 'and on his return at nine the police officers' searched the premises and discovered the liquor. None was discovered in the restaurant, and he denied that he knew anything of the liquor or the trousers found with it. The cook testified that he was in the restaurant and had . the back door locked all the time during the absence of the defendant that afternoon and night, and during that time went to the rear, where the table was, but did not notice any whisky there.

Judgment reversed.

Bloodworth and Stephens, JJ., concur.

W. B. Mcbane, for plaintiff in error.

C. H. Porter, solicitor-general, contra.


text:
    10121.
    AUTREY v. THE STATE.
    Decided January 9, 1919.
    Upon a trial under an indictment for assault with intent to murder, alleged to have been committed by shooting another with a pistol, a .verdict finding- the defendant “guilty of shooting a man” is not void for uncertainty. Its reasonable intendment and meaning- is that the defendant was guilty of the offense of shooting at'another, not in his own defense nor under other circumstances of justification.
    Indictment for assault with intent to murder; from Eorsyth superior court—Judge Morris. August 31, 1918.

      J. P. Brooke, R. B. Russell, for plaintiff in error.

      John T. Dorsey, solicitor-general, Herbert Clay, contra.
   Broyles, P. J.

The indictment under which the defendant was being tried for assault with -intent to murder alleged that the assault was committed upon one-Jim Goswick by shooting him with a pistol. The following verdict was returnee?: ‘We, the jury, find the defendant guilty of shooting a man and recommend that he be punished as for a misdemeanor.” At the same term of court, and before sentence was pronounced, the defendant filed his motion to arrest the judgment, praying that the judgment and verdict he set aside and that he be discharged, on the ground' that the verdict did pot find the defendant guilty of any offense under .the laws of this 'State,- and that the verdict was not one upon which .a sentence could be predicated or pronounced.” This motion was overruled by the trial .judge, and the defendant excepted..

In our opinion this case is controlled by the principle enunciated in the second headnote of Parker v. State, 95 Ga. 483 (22 S. E. 176), where it was held: “Upon the trial of an indictment for assault with intent to murder, alleged to have been committed by-shooting another with a pistol, a verdict finding the accused ‘guilty of shooting another’ is not void for uncertainty. Its reasonable intendment and meaning is, that the accused.was guilty of the offense of shooting at another, not in his own defense nor under other circumstances of justification.” Applying the principle of that ruling to the facts of the instant case, the verdict under review is not void for uncertainty, but, as stated in the Parker case, “its reasonable intendment and meaning is, that the accused was guilty of the offense of shooting at another, not in his own defense nor under other circumstances of justification.” See also Arnold v. State, 51 Ga. 144; Kidd v. State, 10 Ga. App. 147-9 (75 S. E. 266); Smith v. State, 14 Ga. App. 286 (80 S. E. 512). In our opinion the court did not err in overruling the motion to arrest the judgment.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


text:
    10124.
    Neville v. The State.
    Decided January 9, 1919.
    Indictment for felony; from Wilkes superior court—Judge Walker. September 10, 1918.
    Herbert Neville was found guilty under an indictment charging him with having distilled and made alcoholic, spirituous, and malt liquors. It was testified that a still was found on a branch about a hundred yards back of the house of his father; and he stated that he had helped his older brother to move it there, but that he had nothing further to do with it. Six barrels which had had whisky in them were found near the house, and bottles which had contained whisky were found “around there;” some vats which had been used to put malt in, to make beer with, were found “down the branch a little;” and at the corner of the garden was a barrel containing two bushels of wet corn, which was sour and was used for malt, and which had been there a week or ten days. “There was no complete liquor there.” There was a hole which áppeared to' have been dug for a furnace, but it was not completed. The still “had not been used in that place; they had just moved it there.” The defendant said it had been moved from across the river, which was the boundary between that county and another county. At the time these things were found by the witness the defendant’s mother said in the defendant’s presence that “the boys were making whisky because they didn’t want to make a crop, for they were going to war.” The defendant “did not deny it.” Ilis mother has two other boys, and one of them went to the war; one of them, it was testified, “was hiding.”
   Stephens, J.

1, The verdict in this case, being without evidence to support it, cannot be allowed to stand.

2. In view of the above ruling it is unnecessary to pass upon the specific assignments of error.

Judgment reversed.

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

Colley & Colley, for plaintiff in error.

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


text:
    10125.
    Neville v. The State.
    Decided January 9, 1919.
    Indictment for'violation of prohibition law; from Wilkes superior court—Judge Walker. September 17, 1918.

      Colley & Colley, for plaintiff in error.

      R. C. Norman, solicitor-general, contra.
   Broyles, P. J.

1. A constitutional question is not raised in a special ground of a motion for a new trial which excepts to an excerpt from the charge of the court upon the ground that “the act and law” upon -which it was based is violative of a designated! provision of the constitution of the United States and of this State, but which fails to show specifically what particular act and law is meant. Under this ruling, no constitutional question was raised by the plaintiff in error, and this court has jurisdiction of the casé.

2. The following excerpt from the charge of the court is excepted to: “Unless the defendant shows to you by the proof of the ease that' such ‘apparatus’ was on his premises without his knowledge.” This excerpt comprises not even a single completed sentence, but only a part thereof, and is too fragmentary, incomplete, and indefinite to be considered. _ ■

3. The 'remaining ground of the motion for a new trial, being expressly disapproved by 'the trial judge, can not be considered by this court.

4. The evidence amply authorized the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


text:
    10135.
    Bailey v. The State.
    Decided January 9, 1919.
    Indictment for possession of liquor; from Cherokee superior court —Judge Morris. August 26, 1918.

      Howell Brooke, for plaintiff in error.

      John T. Dorsey, solicitor-general, Herbert Clay, contra.
   Broyles, P. J.

1. It was not error for the judge in his charge to remind the jury of the oath they had taken, that they would well and truly try the case, and to read the oath to them. The statement of the court, in this connection, that the jury had “sworn to try the case ‘according to the opinion you entertain of the evidence as adduced on the trial of the case/ ” while slightly inaccurate, was not materially erroneous.

2. Under the facts of the case there was no error in the charge of the court as complained of in the 2d special ground of the motion for a new trial.

3. The venue was properly laid in the indictment, and was clearly and ' undisputedly proved by the evidence, and the court instructed the jury that the burden was on the State to prove every material fact alleged in'the indictment. There was no contention whatever as to the venue 'during the trial of the case. Under such circumstances it affords no ground for a new trial that the judge failed to charge the jury specifically that it was" incumbent on the State to prove that, the defendant had the whisky in his possession,' custody, or control in the county of Cherokee.

4. The verdict was authorized by the evidence, and the court did npt err in overruling the motion for a new trial. ,

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


text:
    10137.
    Zachry v. The State.
    Decided January 9, 1919.
    Indictment for larceny of cow; from Troup superior court— Judge Terrell. September 25, 1918.

      Arthur Greer, for plaintiff in error.

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

1. The motion for new trial in this case contained 'the general grounds only. The evidence, while circumstantial, was sufficient to authorize the jury to find tlie defendant guilty; and the jury having so found, and .their verdict having been approved by the trial judge, this court will not disturb their finding.

Judgment affirmed.

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


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

text:
    10145.
    FOLDS v. THE STATE.
    Decided January 9, 1919.
    1. The folio-wing charge of the court was not error: “Who -used the first opprobrious words, if any were used? I charge you that if you should find that although there might have been opprobrious words used, yet if you find the defendant Eolds used the first opprobrious words, that . would not justify him in striking Moseley on account of his (Moseley) using opprobrious words.”
    2. When considered in the. light of the entire charge of the court and the facts of the ease, there is no material error in any of the other excerpts from the charge upon which error is assigned.
    3. A portion of the request to charge contains a reference to “the relative size and strength” of the prosecutor and the defendant. The evidence is silent as to the relative strength of these parties, and accordingly the court did not err in refusing to give the requested instructions. Thompson v. State, 20 Ga. App. 178 (6) (92 S. E. 959).
    4. The verdict was amply authorized by the evidence, and the court did not err in overruling the motion for a new trial.
    Accusation of assault and battery; from city court of Carrollton —Judge Beall. August 2, 1918.

      Emmett Smith, for plaintiff in error.

      Willis Smith, solicitor, contra.
   Broyles, P. J.

The first beadnote alone needs elaboration. In our opinion the court did not err in charging, in substance, that if the defendant first used opprobrious words to the prosecutor, thereby causing the prosecutor to reply with opprobrious words, then the defendant would not be justified in striking the prosecutor on account of the latter’s use of opprobrious words. This ruling is not in conflict with the decision in Arnold v. State, 46 Ga. 456, cited by counsel for the plaintiff in error. In that case it was merely held that it was not error for the court to charge the jury that “if they believed, from the evidence, that the defendant used the first insulting and opprobrious words, they might take that into consideration in determining whether the defendant was justified in making the alleged assault.” It is obvious that the plaintiff in error in that case could not complain of the charge given; and that was substantially all the court decided. It does not follow that the judgment of the trial court would have been . reversed if the charge had not been given: Nor is our ruling in conflict with the decision in Reid v. State, 71 Ga. 865, or with that in Sutton v. State, 2 Ga. App. 659 (58 S. E. 1108). In the Reid case the third headnote is as follows: “If one makes use of opprobrious epithets, and another replies with other opprobrious words, the former will not be justified in striking the latter for the use of language provoked by his own similar language.” (Italics ours). An examination of the original record in the Reid case, on file in the office of the clerk of tlm Supremo Court, shows that the charge of the judge which was excepted to, and which was approved by the Supreme Court, was as follows: “If defendant first used abusive language to Canafax [the prosecutor], and caused Canafax to reply with abusive language or opprobrious yrords, then defendant would have no right to strike Canafax for the use of such language”. It swill be observed that the charge just quoted is substantially like the charge excepted to in the instant case. The record in the Reid case shows also that the opprobrious words used by the prosecutor and the defendant respectively were not “similar” in the sense that they were equal in severity and abuse, but that they were similar in their general character and in belonging to a particular class of words, viz. opprobrious words; and, in our opinion, the Supreme Court used the word “similar” in the latter sense.

In the Button case, supra, this court held, in the second paragraph of the decision, that “the aggressor in the use of opprobrious words can not set up, as a defense to a violent battery with a pistol, the use of similar words provoked by his own language.” An examination of the original record in that case shows the same 'state of facts substantially as disclosed by the record in the Reid case, and this court must have used the word “similar” in the sense in which it was used by the Supreme Court. At all events, the charge approved by the Supreme Court in the Reid case, just mentioned, is substantially the charge complained of in the case at bar. It follows that the charge under review was not erroneous in this respect; nor was it erroneous for jany other reason assigned.

Judgment affirmed.

Bloodworth, J., concurs. Stephens, J., dissents.

Stephens, J.,

dissenting.

The judge below charged the jury that if the defendant used the first opprobrious words, that would not justify him in striking the prosecutor on account of the prosecutor having used opprobrious words. This, in my opinion, was ‘error, and deprived the. defendant of the right, which the law gives him, to plead, in defense to a battery by him, opprobrious words used by the person assailed, and to have the jury pass upon the sufficiency of his defense. The Penal Code, § 103, says: “On the trial of an indictment for an assault, or an assault and battery, the defendant may give in evidence to the jury any opprobrious words,- or. abusive language, used by the 'prosecutor, or person assaulted or beaten; and such words and language may or may not. amount to a justification, according to the nature and extent of the battery, all of which shall be determined by the jury.” According to the provisions of this section the jury is given the right to pass upon such defense, and its power in this respect is not limited or curtailed. It is plenary and full. According to the view which I take, no court has the right to say that the • defendant, by language slightly offensive used by him to the one assaulted, has forfeited his right to avail himself of the defense which the statute, without limit or qualification, gives him. It has always been the distinct policy in this State to favor jury trials in criminal cases. I am, therefore, unwilling to render a judgment curtailing and limiting this right, unless forced to do so by clear and' imperative authority.

It is true that in the reporter’s headnote in the case of Reid v. State, 71 Ga. 865 (3), cited in the majority opinion, it is stated in general language that “if one makes use of opprobrious epithets, and another replies with other opprobrious words, the former will not be justified in striking the latter for the use of language provoked by his own similar language.” While this language, literally construed, might sustain the doctrine now announced by the majority of this court, I do not think; from an inspection of the original record in that ease, that this language means what the majority of the court -construes it as meaning. It must be taken with reference to the peculiar facts of that case, which show that the defendant therein did not commit an ordinary battery, which he could justify on account of opprobrious words used to him, but committed an assault and battery with a rock, inflicting a severe and dangerous wound upon the head, calculated to produce death. See the comments of Mr. Justice Samuel Lumpkin in Nixon v. State, 101 Ga. 575 (28 S. E. 971), restricting and distinguishing this case to its own peculiar facts. The charge in the Reid case was tó the effect that if the opprobrious words used by the defendant to the prosecutor “caused” the prosecutor to reply with abusive language or opprobrious. words, the defendant would have no right to strike the prosecutor for the use of such language. This charge'is entirely different from the charge complained of in the instant case, where the jury was charged that the defendant could not defend a battery on account of the use to him of opprobrious words when .the defendant himself used the first opprobrious words; the judge in the instant case failing to limit the.application of the rule which he lays down to cases where opprobrious words used by the defendant “caused” the prosecutor to retaliate with words in kind Therefore, even assuming that the majority opinion correctly states the law, I respectfully submit that it is no* applicable to the charge of the court in the instant case.

In the Sutton case, 2 Ga. App. 659 (58 S. E. 1108), also cited in the majority opinion, it is held that when the opprobrious words used by the one assaulted ire “provoked” by the assailant, then the latter cannot justify a “violent battery with a pistol” by way of resentment provoked by his own. similar language, such battery being further characterized as “a battery with a large pistol, sufficient in severity to knock-down and cause unconsciousness”. The facts in that case show that the defendant cursed the prosecutor in much more violent and abusive language than the prosecutor used to him, if the prosecutor used any abusive language in that case. The case of Patterson v. State, 14 Ga. App. 120 (80 S. E. 213), seems to recognize the doctrine of my contention. There was evidence in that case of a mutual exchange of both blows and abusive language. The court held that the whole matter was one for the jury. . In the case of Arnold v. State, 46 Ga. 456, the court charged the jury as follows: “If they believe that the prosecutor used insulting and abusive language to the defendant, it might or might not amount to a justification, depending upon the extent of the battery, and if they believe, from the evidence, that the defendant used the first insulting and opprobrious words, they might take that into consideration in determining whether the defendant was justified in making the alleged assault.” The Supreme Court must have tacitly approved this charge, 'since they did not characterize it as more favorable to the defendant than he had a right to expect. It, at least, shows how this question was regarded by a trial judge at that time.

While there is evidence in the instant case to the effect that each party used insulting and abusive language to the other, yet each party denies that he used the language attributed to him. Whether this justified the inference that there was a mutual exchange of ' such language, there was in evidence certain testimony by a witness for the defense that he heard the defendant tell the prosecutor that he (defendant) understood, that the prosecutor threatened to whip him, and that, upon prosecutor’s reply with a most vile and insulting epithet, the defendant assaulted-prosecutor and knocked him down. Kimberly v. State, 4 Ga. App. 852 (3) (62 S. E. 571). Without, however, confining the inquiry to this witness, it appears from the entire evidence as undisputed that the language alleged to have been used by the defendant to prosecutor was far less aggravating and insulting 'than that alleged to have been used by the prosecutor to defendant. There is some evidence to the effect that the battery was inflicted with the fists. I do not think, therefore, that it can be said, as a matter of law, that the language applied by the defendant to the prosecutor amounted to a forfeiture of the defendant’s right to resent with an appropriate battery the vile insult alleged to have been given to' him by the prosecutor. Whether or not an assault- and battery is justified, under such circumstances, is a question entirely for the jury to determine; and the trial judge having failed to so submit in his charge, the conviction should be set aside and a new trial .granted. .See, in this connection, Boatright v. State, 89 Ga. 140 (1) (15 S. E. 21); Crawley v. State, 7 Ga. App. 95 (66 S. E. 273).