author: Harwell, J. Broyles, P. J.,

text:
    8945.
    HORTON v. THE STATE.
    1. The charge of the court, that' “the defendant in this case has offered some evidence of an alibi,” is not, when taken in connection with the entire charge^ of the court on this question, error harmful to the defendant. The court fully and fairly submitted to the jury the defendant’s defense of alibi.
    2. As there was evidence of a confession of the crime by the defendant, together with other circumstances connecting him with the perpetration ' of the offense, the court did not err in failing to charge the jury on the law of circumstantial evidence.
    3. There was a fatal variance between the accusation and the proof, it being alleged in the accusation that the property stolen belonged to three named persons and was in. the possession of one of these, and the prooí showing that it belonged jointly to him and two others of different names than those alleged.
    4. The court erred in overruling the motion for a new trial.
    Decided October 31, 1917.
    Accusation of- larceny; from city court of Sparta — Judge Moore. May 10, 1917.

      T. M. Hunt, G. Lee Dichens, for plaintiff in error.

      B. L. Memtt, solicitor, contra.
   Harwell, J.

The accusation charged the accused with the lar-' eeny of "one copper metal syrup pan, of,the personal goods of Gilmore Thomas, Lee Boyer and Murray Harper, in the possession of Gilmore Thomas.” The evidence on the trial showed that the syrup pan was the joint property of Gilmore Thomas, Albert Boyer, and Harry Harper, though in the possession of Gilmore Thomas. In a prosecution for larceny the ownership of the property alleged to have been stolen must be laid, if known, in some person or’persons. Randolph v. State, 16 Ga. App. 338 (85 S. E. 358); Buffington v. State, 134 Ga. 34 (53 S. E. 19). Being an essential allegation, it must be proved as laid in the accusation. In the instant case there is a fatal variance between the accusation and the proof as to the ownership of the property. Riley v. State, 1 Ga. App. 651 (57 S. E. 1031); Grant v. State, 130 Ga. 199 (47 S. E. 534); 35 Cyc. 93, 103; Parmer v. State, 41 Ala. 416; Atkins v. State, 44 Tex. Crim. 291 (70 S. W. 744). For this reason the court erred in refusing the defendant' a new trial. In the second ground of the amendment to the motion for a new trial it is insisted that the court erred in failing to charge the law of circumstantial evidence. There was evidence that the syrup pan was carried off across the field of the defendant, an.d that the tracks of the parties who carried it off led to the defendant’s house, and evidence showing where the pan was torn up in the swamp, and other circumstances connecting the defendant with the commission of the crime. One of the witnesses testified that the defendant 'told him that he had had the pan; that he got it out from under the shelter himself and carried it down across the field a little piece, and then went back and got his brother; and he further testified that defendant had endeavored to get him to swear that he, the defendant, was at the witness’s house on the night of the larceny. There being evidence of a confession, and other circumstances connecting defendant with the perpetration of the crime, the failure of the court to give in charge the law of circumstantial evidence was not error. Griner v. State, 121 Ga. 614 (49 S. E. 700); Perry v. State, 110 Ga. 234 (36 S. E. 781). See also Nolles v. State, 127 Ga. 213 (5) (56 S. E. 125); Hegwood v. State, 138 Ga. 274 (75 S. E. 138). The judgment of the court belotv, overruling the motion for a new trial, is reversed solely because of the fatal variance between the accusation and the evidence as to the ownership of the property.

Judgment reversed.

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

Broyles, P. J.,

specially concurring. It is with some reluctance that I concur in the judgment reversing the judgment of the lower court in this case. I heartily agree with Mr. Justice Cobb’s language in Thomas v. State, 125 Ga. 286 (54 S. E. 182), that "those who enter dwelling-houses and steal therefrom will not he permitted to raise hice and delicate questions as to the title of the article stolen.” If the accusation in this case had simply charged that the stolen property belonged to Gilmore Thomas, this allegation would have been sustained by proof that the property belonged jointly to him and other persons, and was in his actual possession or control when stolen (Waters v. State, 15 Ga. App. 342 (83 S. E. 200), and authorities there cited), or that it belonged exclusively to other persons if he had actual lawful possession of it when, the larceny occurred. Wimbish v. State, 89 Ga. 294 (15 S. E. 335); Bradley v. State, 3 Ga. App. 633 (58 S. E. 1064). However, the accusation having charged that the stolen property belonged to “Gilmore Thomas, Lee Boyer, and Murray Harper, in the possession of Gilmore Thomas,” and the proof showing that although the property was in the possession of Gilmore Thomas it belonged.to Gilmore Thomas, Albert Boyer, and Harry Harper, I am forced to admit that, under the common law (which in this particular has not been changed by any statute of this State), this variance is fatal, and that the conviction of the defendant is contrary to the law and the evidence.


source: Caselaw Access Project

author: Harwell, J.

license: Public Domain

text:
    8960.
    Cason v. The State.
    Decided October 31, 1917.
    Accusation of making intoxicating liquor, etc.; from city court of Polk county — Judge John K. Davis. May 14, 1917. ■
    The defendant was charged with the offense of manufacturing liquor, and with having in his possession more than two quarts of liquor. He was found guilty, and he filed a motion for new trial on the general grounds only. Briefly stated, the evidence showed a still in active operation; the defendant’s presence at the still, with two other persons; that the defendant, from the woods near by, brought to the still an armful of pine-knots and threw them down at the still; that he picked up a jug and carried it to where the other two persons at the still were measuring out whisky; that he squatted down by the side of the “other ’fellow” who was measuring out the whisky, “all close together”; that later, when the officers arrived on the scene, the defendant, with the same two “fejlows,” was at the still; that all three ran when the officers appeared; that defendant stumbled and fell, jumped up, and continued to run until the officer told him .he need not run, as the officer knew him; and that defendant then stopped, but did not say anything. In a subsequent conversation with this officer, defendant stated that he was not there. Other circumstances in evidence need not be recited. The defendant was convicted of manufacturing liquor, "and a new trial was denied. . -
   Harwell, J.

The evidence authorized the verdict, and the trial judge did not err in overruling the motion for new trial, which was based upon the general grounds only. Strickland v. State, 9 Ga. App. 201 (70 S. E. 990).

Judgment affirmed.

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

Irwin & Tison, for plaintiff in error.

J. A. Wright, solicitor, contra.


author: Bloodworth, J.

text:
    8963.
    Jackson v. The State.
    Decided October 31, 1917.
    Indictment for 'murder; conviction of manslaughter; from Houston superior court — Judge Mathews. May 21, 1917'.

      John R. Cooper, C. L. Shepard, for plaintiff in error.

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

1. The instructions complained of in the motion for new trial are not erroneous when read in the light of the entire charge of the court, which covered all the issues raised, and, with the exception of slight verbal inaccuracies which were harmless, was full and fair.

2. The requests- to charge, so far as legal and pertinent, were covered by the general charge.

3. Where, on the trial of one indicted for murder, the evidence for the State showed that the deceased and the defendant had a quarrel at the home of the latter, and the latter procured a hickory stick and ordered the deceased, away, and the deceased .picked up a rock, threw it at the defendant, and struck him on the head, and then ran off, followed by the defendant, that the two passed out of the sight of the witnesses, who immediately thereafter heard licks and heard the deceased holier , “murder,” and, upon going to where he was in a briar-patch, found him dead, with his head beaten so that “a beefsteak could not have been beaten much worse,” and where the defendant admitted to a witness that he tried to kill deceased, and in his statement said, “I remember overtaking him and hitting him some, but it seemed like I was unconscious in some way; and I come back up home and I never had any idea I had killed him. . . I am not a murderer, but.I feel that a man should protect his house, and not let a man come and kill him and take him out,” “the case was not one depending wholly upon circumstantial evidence, and it furnished no ground for a new trial that the court failed_to charge the law touching such evidence.” Cliett v. State, 132 Ga. 36 (63 S. E. 626) ; Hicks v. State, 146 Ga. 221 (4) (91 S. E. 57) ; McElroy v. State, 125 Ga. 32 (2) (53 S. E. 759).

4. The evidence authorized the verdict, of voluntary manslaughter, anc the court did not err in refusing a new trial.

Judgment affirmed.

Broyles,. P. J., and Harwell, J., concur.


text:
    8968.
    Stansell v. City of Conyers.

      Writ of error dismissed.

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

    Decided October 31, 1917.
    Certiorari; from Koekdale superior court — Judge Smith. April 23, 1917.

      J. R. Irwin, G. B. .Vaughn, for plaintiff in error.

      J. H. McCalla, contra.
   Harwell, J.

The petition for the writ of certiorari is not incorporated in the bill of exceptions or otherwise verified as a part thereof by the trial judge. Accordingly, this court is not able to review the judgment of the superior court in refusing to sanction the writ. See Hall v. State, 2 Ga. App. 437 (58 S. E. 558), and cases there cited.


text:
    9007.
    Coldwell v. The State.
   Bloodworth, J.

1. The evidence in this case was submitted to a jury, whose peculiar province it was to pass upon the facts, under a charge of which no complaint is made. There was ample evidence to support the verdict, which was approved by the trial judge, and this court will not interfere.

2. Where the person alleged to have been seduced (the only witness who testified in reference to the venue) swore that the offense was committed “last year in Polk county,” this is sufficient to establish the venue in that county (Knox v. State, 114 Ga. 272 (40 S. E. 233) ; Mitchum v. State, 11 Ga. 615) ; and the verdict will not be set aside on the ground that “the evidence in said case fails to establish that the offense charged, or any other offense, was committed ill the county of Polk,” even though in another part of her testimony the witness swore that the offense was committed “in a place they called Bugger Hollow,” and although on the hearing of the motion for new trial there were affidavits from three witnesses who swore that'they lived in the community of “Bugger Hollow” many years, and that it is in Eloyd county. Especially is this true when the affidavits of eight witnesses were produced on the said hearing, each of whom swore that the person alleged to have been seduced “personally pointed out to affiant the place where the defendant, William Coldwell, . . committed the alleged offense of seduction with her; that said place or location is on the A. E.-Scott farm in Polk county, Georgia.”

3. The alleged newly discovered evidence of the witnesses W. L. Wilson and Emmett Bridges is cumulative and impeaching in its character.

4. "A judgment of the trial court refusing a motion for new trial on the ground of newly discovered evidence will not be disturbed when the motion fails to show, by affidavit of the movant and each of his counsel, that they did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the. exercise of ordinary diligence.” Pharr v. Davis, 133 Ga. 759 (2) (66 S. E. 917); Civil Code (1910), § 6086.

Decided October 31, 1917.

Indictment for seduction'; from Polk superior court — Judge Bartlett. June 12, 1917.

W. II. Trawich, Fielder & Fielder, for plaintiff in error.

J. B. Hutcheson, solicitor^ enerad, W. W. Mundy, contra.

Judgment affirmed.

Broyles, P. J., and Harwell, J., concur.


text:
    9008.
    McDonald v. The State.
   Harwell, J.

1. The excerpt from the charge of the court complained of in the 4th ground of the motion for a new trial correctly defines the offense of larceny from the person, and the exception taken thereto, that the court failed “to charge the law as to .principals in the first and second degree,” is not well taken. Collins v. State, 88 Ga. 347 (14 S. E. 474); Morgan v. State, 120 Ga. 294 (48 S. E. 9); Hill v. State, 18 Ga. App. 259 (89 S. E. 351)..

2.. The charge of the court excepted to in ground 5 of the motion, when considered in connection with the otliér portions of the charge, was not erroneous for any of the reasons assigned.

3. The charge of the court complained of in ground 6 of the motion instructed the jury: “In order to convict on circumstantial evidence, the facts proven in the case must not only be consistent with the guilt of the accused, but it must be inconsistent, with any other reasonable hypothesis-except that he is guilty; if it is not, you would not be authorized to convict upon circumstantial evidence.” This charge is substantially in the language of the code, and is not erroneous for any reason assigned.

4. The charge of the court on the subject of alibi, excepted to in ground 7 of the motion, is as follows: “There is evidence in this ease for the purpose of showing that the defendant is not guilty because he was not present at the time and place that the larceny was committed, if a larceny was committed. That is known in law as an alibi. Alibi as a defense involves the impossibility of the presence of the defendant at the time that the crime was committed, if it was committed. As a defense, an alibi must be established to the satisfaction of the jury. However, the jury may consider the proof as to alibi along with the other proof, and should consider the proof along with the other proof in the case to determine whether or not guilt is shown beyond a reasonable doubt.” This charge, while omitting the word “reasonable” before .the word' “satisfaction,” was not erroneous when taken in connection with the entire charge on this subject. If the movant desired further instructions on his defense of alibi he should have made an appropriate and timely written request therefor. Pyles v. State, 12. Ga. App. 667 (78 S. E. 144).

Decided October 31, 1917.

Indictment for larceny from the person; from Bibb. superior court — Judge Mathews. June 9, 1917.

McDonald and Jenkins were jointly indicted for larceny from the person of money and a pocket-book of one Andrews. Jenkins was tried and convicted, and the judgment of the court overruling his motion for new trial was reviewed and affirmed by the Court of Appeals. Jenkins v. State, 19 Ga. App. 626 .(91 S. E, 944). McDonald, the defendant in-the instant ease, was afterward tried and convicted. His motion for new trial was overruled, and he excepted. The testimony for the State, briefly stated, shows that as Andrews, the prosecutor, was in the act of taking out his pocket-book and money for the purpose, of purchasing a ticket at the terminal station in Macon,. Ga., Jenkins and the defendant pressed up against him; that at the time he replaced the pocketbook and money in his pocket the defendant engaged him in conversation about changing a dollar bill; that he stepped away from the ticket-window, and, immediately missing his pocket-book and money, made an outcry; that Jenkins was seen by another witness for the State to take a pocket-book from the pocket of the. prosecutor, motion to the defendant, go out of the door with him, and, when they got out of the sitting-room, reach in his pocket and give the defendant the pocket-book, and then saw the defendant go off; that when Andrews cried out that he had lost his pocket-book this witness rushed after Jenkins, who ran and hid; that the next morning this witness saw the defendant in Atlanta, and, together with some officers, tried to catch him, but he ran, and they lost sight of him; that afterward, when the defendant was seen by the officers, he broke and ran, but was finally caught and arrested. The defendant denied the charge against him, and claimed that he was in Atlanta at the time which the prosecutor testified was the time of the larceny, and he offered evi-dence to support his defense of alibi.

6. The failure of the court to charge on the impeachment of witnesses, in the absence of a request so to do, was not error. Millen &c. R. Co. v. Allen, 130 Ga. 657 (5) (61 S. E. 541) ; Wyatt v. State, 18 Ga. App. 29 (2) (88 S. E. 718).

6. A ground of a motion.for new trial complaining of the admission of testimony must show the grounds of objection urged by the movant at the time the evidence was offered. An objection to the admission of evidence upon the ground merely that it is inadmissible is equivalent to assigning no reason at all for its exclusion.

7. The evidence supports the verdict, and the trial judge did not err in refusing the defendant a new trial.

Judgment affirmed.

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

H. F. Rawls, S. L. Wisenberg, for plaintiff in error.

John P. Ross, solicitor-general, contra.


text:
    9017.
    Newberry v. The State.

      Broyles, P. J., and Harwell, J., concur.

    Decided October 31, 1917.
    Indictment for larceny; from Miller superior court — Judge Worrill. June 9, 1917. .

      Billie B. Bush, for plaintiff in error.

      B. F. GasteTlow, solicitor-general, R. R. Arnold, contra.
   Bloodworth, J.

The motion for a new trial being based on the general grounds, alleging no error of law on the part of the trial judge, and the evidence, though conflicting^ being suiEcient to support the verdict, this case falls within the general rule, so repeatedly announced, that under such circumstances the verdict, after its approval by the trial judge, will be allowed to stand.

Judgment affirmed.


text:
    9027.
    Sapp et. al. v. City of Baxley.
    Decided October 31, 1917.
    Certiorari; from Appling superior court — Judge Highsmith. June 4, 1917.

      H. L. Williams, A. A. McLean, for plaintiff in error.
   Bloodworth, J.

The condition of the bonds attached to and made a part . of the petition for certiorari is as follows: “that -the defendant shall and will personally appear and abide the final judgment of the court upon the said fine and'sentence in said case, and if the defendant shall so appear thou [thenll said bond to be in full force and effect” (italics ours). This does not meet the requirement of the statute (Acts 1902, p. 105, Park’s Ann. Code, § 5191 (a)); and no pauper affidavit having been made, the judge of the superior court did not err in refusing to sanction the certiorari.

Judgment affirmed.

Broyles, P. J., and Harwell, J., concur.


text:
    9028.
    COLLINS v. THE STATE.
    It affirmatively appearing from the extraordinary motion for new trial that all of the alleged newly discovered testimony was either known to the defendant at the time of trial, or inadmissible as being hearsay, or impeaching in its character, the trial court properly overruled the motion. . '
    Decided October 31, 1917.
    Indictment for selling intoxicating liquor; from Tattnall superior court — Judge Sheppard. May 35, 1917.

      E. E. Elders, for plaintiff in error.

      W. F. Slater, solicitor-general, contra.
   Harwell, J.

In January, 1917, J. W. Collins was convicted in the superior court of Tattnall county of selling liquor, his motion for a new trial was overruled by the trial judge, and the judgment overruling his motion was affirmed by this court. See 19 Ga. App. 751 (93 S. E. 339). On May 16th, 1917, Collins made an extraordinary motion for a new trial, based upon the alleged newly discovered testimony of J. C. Collins, W. A. Brown, and E. J. Brown. It affirmatively'appears, from the recitals in.the motion, that the defendant knew, at the time of his trial, of the testimony of J. C. Collins; that, as a matter of fact, he had subpoenaed this witness to testify in his behalf on his trial, and had asked for a continuance because of the inability of this witness to attend the trial. The motion also shows that the facts sought to be proved by W. A. Brown were entirely impeaching in character, being an effort to impeach the testimony of one Bogers, who testified against defendant in the first trial. ■ Not only was the testimony of this new witness altogether impeaching in its character, and a large part of it hearsay and therefore inadmissible, but in addition it must have been, under the facts alleged in the affidavit, as well known to the defendant as to the witness. The newly discovered evidence of E. J. Brown also, as shown by his affidavit, sought only to impeach the testimony of the witness Bogers. We not only think that the trial judge did not abuse his discretion in overruling this extraordinary motion for a new trial, but we consider his judgment imperative, in view of the nature of the three affidavits offered in support of the motion.

Judgment affirmed.

Broyles, P. J.3 and Bloodworth, J., concur.


text:
    9030.
    Lee v. City of Thomaston.
    Decided October 31, 1917.
    Certiorari; from Upson superior court — Judge Searcy. June 30, 1917.

      J. B. Davis, for plaintiff in error. 17. T. Allen, eon^a.
   Bloodworth, J.

The petition for certiorari did not affirmatively show that the petitioner had given such a bond as is required by the statute (Acts 1902, p. 105, Park’s Ann. Code, § 5191 (a)); and under the rulings in Toliver v. Wrightsville, 17 Ga. App. 345 (86 S. E. 823), Hubert v. Thomasville, 18 Ga. App. 756 (90 S. E. 720), and Gillespie v. Macon, 19 Ga. App. 1 (90 S. E. 970), the court did not err in overruling the certiorari.

Judgment affirmed.

Broyles, P. J., and Harwell, J., concur.


text:
    9152.
    Osbrooks v. City of Thomaston.
    Decided November 1, 1917.
    Certiorari; from Upson superior court — Judge Searcy. August 11, 1917.

      ' J. B. Davis, .for plaintiff in error. Claude Worrill, contra.
   Harwell, J.

This ease is controlled by the decision in the case of Lee v. City of Thomaston, ante, 129.

Judgment affirmed.

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


author: Broyles, P. J.

text:
    9062.
    Howell v. City of Thomaston.
    Decided October 31, 1917.
    Certiorari; from Upson superior court — Judge Searcy. July 10, 1917.

      J.’B. Davis, for plaintiff in error. Claude Worrill, contra.
   Broyles, P. J.

Under the rulings in Toliver v. Wrightsville, 17 Ga. App. .345 (86 S. E. 823), Hubert v. Thomasville, 18 Ga. App. 756 (90 S. E. 720), and Gillespie v. Macon, 19 Ga. App. 1 (90 S. E. 970), the petition' for certiorari did not affirmatively show that the petitioner had given such a bond as is required by the statute, and the court did not err in refusing to sanction the petition.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9031.
    BOWLES v. THE STATE.
    The evidence authorized the verdict, and the court did not err in overruling the motion for 'a new trial.
    Decided October 31, 1917.
    Indictment for murder; conviction of manslaughter; from Troup superior court — Judge Terrell. June 11, 1917.

      E. A. Jones, for plaintiff in error.

      G. E. Boop, solicitor-general, contra.
   Harwell, J.

Bowles, the defendant, was indicted for the murder of Simon Brooks, and was convicted of voluntary manslaughter. He made a motion for a new trial based on the general grounds, which the judge overruled, and he excepts to this judgment. Brooks was killed on Friday night, September 15, 1916, about eight or nine o’clock. When the neighbors went in they found his body in the dining-room of the defendant’s residence, in the northwest corner. A plate was on the table with some crumbs in it. His feet were under the table. There was a bullet hole in his breast near the region of the heart, and his body was still warm. His clothing was searched and nothing was found in his pocket but a little Barlow knife, shut up, and an empty bottle. No pistol or dirk was found on his person, and none was in the room. There was a case-knife lying under the table and a pint bottle lying on the floor. The defendant made several statements to witnesses that night about the killing. To a Mrs. Blackwood he said: “Oh, Miss Jennie, haven’t I just played the world. What have I done? I have played the world.” To others: “I killed him. He was the best friend I have in the world — wouldn’t have done it for anything in the world.” Later “he was crying and going on, and said: 'Who done it»? Who did it ? Who -killed him? I did it. Ab Bowles did it. I did it, and what for? For nothing.’” Mrs. Blackwood further testified that “once in a whilé he was crying and hollering.” “As to who was present when Ab Bowles said 'Ab Bowles killed him, and killed him for nothing,’ I couldn’t tell you.” This witness- further testified that he was unnatural and excited — “I don’t mean he was unconscious, I just mean he was not like he was when he was sober. He showed he had whisky, but at the same time he knew all of us in the dark — in the moonlight.” To the question, “Is not it possible the language he used might have been 'I killed Simon Brooks, and wouldn’t have done it for nothing/” she answered that it was possible such was his language. “He made that remark later, ‘that he killed him, and wouldn’t have done it for nothing.’ It isn’t possible I misunderstood his language, and it might have been he said ‘I killed Simon Brooks, and wouldn’t have done it for nothing.’ He said exactly the words I told you — ‘I killed him, Ab Bowles killed him.’” She further testified: “There was not anything else, unnatural except he was drunk; .he knew everything that come up as well as anybody else there.” Other witnesses testified that on this night, after the killing, when they went to the defendant’s house, the defendant had been drinking. Other witnesses testified that the defendant and Bsooks were close friends, and that in conversation at the defendant’s house on the night of the killing he told them that he killed Simon Brooks, and said that “Sime” was the best friend he had, and he “wouldn’t have done it for nothing,” he had to do it, that “Sime” had him up in a corner and he had to do it to save his life; that Simon Brooks said he was going to cut his damned throat or kill him, one or the other. Other witnesses testified, that he was at Jim Bass’s house drinking, about 2:30 o’clock Friday morning; that he slept a while at Bass’s house; that Bass’s pistol was there under the pillow, and that Friday night the pistol was missed. They identified the pistol shown them with which defendant killed Brooks, as Bass’s pistol. It was testified that the defendant said to Hawkins, who was present at Bass’s, house at that time: “I have played hell, and I 'am going to play it bigger; I am going to kill Mr. Simon Brooks, a God damned small-headed son of a bitch.” Bass also testified that the defendant told him at that time that he, the defendant, and Simon had had a row, “and if the same thing turned up' again he would kill him — he. didn’t say what; that he had just come from Chipley, and.said he had some trouble down there, and brought it up; I couldn’t tell you why he brought it up, I didn’t pay any attention.” Another witness testified that he found Simon Brooks’s hunting knife, or dirk, at Simon’s house when he went there the next day, somewnere about his bed, either in front of it or at the side of it, on the floor. The defendant made substantially the following statement at the trial: “Me and Sime have been friends all our lives. We never had any trouble in our lives until the night I had to kill him to keep him from killing me., If I said any such thing as Jim Bass said I must have been'drunk, for I never thought of-any trouble with Sime. I never told Hawkins nor anybody else I was going to kill Sime. When I went to Jim Bass’s the pistol was in the bed and the house was open; I put the pistol in my pocket and forgot to give it to Jim, and come off with it in my pocket. Sime had been on a spree Jor two or three days, and when he got drunk that way he would stay in his house without anything to eat. So at dinner I carried him something to eat, and told Bose Broughton to get some milk. Me and Sime set and laughed and talked until Bose got some water. Then me and Bose went home and hitched up his buggy and carried me to Stovall. When I got home about sundown I was told Sime had been there and said for me to come down to his cabin. When I got there I found him feeling bad and I told him to come up to my house and we would sober him up like we had always done. My wife fixed over what we had had for supper, and Sime and me went in and set down to supper. I was sitting on the bench and Sime was at the end of the table. I moved the lamp so he could see better. Sime says, ‘What in the hell did you move that lamp for?’ I told him so he could see; he told me to keep my damn hands off. I told him that was all right, I wasn’t going to' get mad with him. Then Sime said he was going to beat hell out of me and he grabbed me. I got loose and told him to come on and go to bed, then Sime grabbed me again and I was trying to get loose, and he was cursing me, and in the scuffle he got me 'down on the floor. My wife heard the fuss and she come with Eunice, and my wife pulled Sime and I got loose. Sime said he was going to kill me, and my wife and Eunice was screaming and my mother come and caught hold of Sime and he jerked loose and grabbed me by the throat and told my mother, ‘Miss Jane, I am going to kill the damned son of a bitch,’ and he reached for his knifd and when he come up I saw the blade and I shot him. Sime had been drinking until he would do anything, and I knew he always carried a dirk; when he said he was going to kill me I knew I had to save myself, and I shot once to keep him from killing me. I went and told Mr. Perry and came up here next morning and gave up.”

We think the evidence warranted the verdict of voluntary manslaughter, and the court did not err in overruling the motion for new trial, based on the usual general grounds only.'

Judgment affirmed.

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


text:
    9033.
    Baker v. The State.
    Decided October 31, 1917.
    Accusation of larceny; from city court of Macon — Judge Guerry. June 23, 1917.

      U. F. Bawls, 8. L. Wisenberg, for plaintiff in error. '

      Will Gunn, solicitor, contra.
   Bloodworth, J.

The motion for a new trial contains the general grounds only. There was sufficient evidence to support the verdict of guilty, and the court did, not err in overruling the motion for new trial.

Judgment affirmed.

Broyles, P. J., and Harwell, J., concur.


text:
    9034.
    BRACEWELL v. THE STATE.
    1. The court did not err in allowing the witness Wynn to testify that he was jointly indicted with this defendant and had pleaded guilty to the same charge, the jury being sufficiently instructed that “any plea, he made would not bind the defendant.”
    2. An attorney is both competent and compellable to testify, for or against his client, as to any matter or thing, knowledge of which he may have acquired in any other manner than by virtue of his relations as ■ attorney, or by reason of his anticipated employment as attorney. Penal Code (1910), § 1037 (5).
    3. The charge of the court excepted to in ground 3 of the amendment to the motion for a new trial, when considered together with the general charge, fully and fairly instructed the jury on the subjects of presumption of innocence and burden of proof, and is not subject to any of the criticism made thereon.
    4. The court did not err in defining to the jury a principal in the first degree and a principal in the second degree, and in instructing them that all persons aiding and abetting in the perpetration of a misdemeanor are indictable as principals.
    5. The court sufficiently instructed the jury on circumstantial evidence and reasonable doubt, and the exceptions taken to the charge in grounds 5 and 6, complaining that the court failed so to do, are therefore without merit.
    6. The remaining ground of the motion for a new trial, not being argued in brief of counsel for the plaintiff in error, will be treated as abandonea.

      7. The evidence authorized the verdict, and the court committed no error in refusing the defendant a new trial.
    Decided October 31, 1917.
    Accusation of. dynamiting fish; from city court of Dublin— Judge Flynt. June 30, 1917.

      John R. Cooper, for plaintiff in error.

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

The defendant was charged, fointly with one Wynn, of dynamiting fish, and was found guilty. The evidence shows that the defendant suggested to Wynn that they go down to Turkey Creek and get a mess of fish, and together they went to the creek. Defendant was not seen to have any fishing tackle of any kind when he went to the creek. A large explosion was heard at the creek, and when witnesses who heard it arrived at its source they found the water muddy, dead fish floating on its surface, and saw the defendant and Wynn gathering in the fish. Wynn was in the water picking up fish, and the defendant on the bank with a dip-net dipping them up. The defendant was afterward seen on his way home with the fish; and when asked if they were fit to eat, he replied that they were. We think the evidence amply supports the verdict; and the errors alleged to have been committed on the trial are dealt with in the headnotes to this decision.

Judgment affirmed.

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


text:
    9038.
    Conley v. The State.
   Bloodworth, J.

1. “A correct statement of law embraced in a charge to the jury is not erroneous because the court failed in the same connection to give to the jury other appropriate instructions. Lucas v. State, 110 Ga. 756 (36 S. E. 87) ; Central of Georgia Ry. Co. v. Grady, 113 Ga. 1045 (3), 1046 (39 S. E. 441); Keys v. State, 112 Ga. 392 (4), 397 (37 S. E. 762, 81 Am. St. R. 63); Rawlins v. State, 124 Ga. 31 (16), 50 (52 S. E. 1).” Hill v. State, 18 Ga. App. 259 (89 S. E. 351). See also Nail v. State, 125 Ga. 234 (2) (54 S. E. 145); Killian v. State, 19 Ga. App. 750 (2) (92 S. E. 227); Barron v. State, 12 Ga. App. 342 (2) (77 S. E. 214).

2. If fuller instructions had been desired, they should have been requested as provided by § 1087 of the Penal Code and § 6084 of the Civil Code.

3. The charge is not erroneous, as contended, “because it mixes the law . of ■ self-defense up with the law. and the right to defend a mother’s life.”

4. “The case was not one depending wholly upon circumstantial evidence, and it furnished no ground for a new trial that the court failed to charge the law touching such evidence.” Cliett v. State, 132 Ga. 36 (63 S. E. 626). See also Hicks v. State, 146 Ga. 221 (4) (91 S. E. 57); Smith v. State, 11 Ga. App. 89 (10) (74 S. E. 711); Fuller v. State, 10 Ga. App. 34 (2) (72 S. E. 515).

5. The court did not err in failing to charge on involuntary manslaughter. Involuntary manslaughter is defined in the Penal Code, § 67, in part as follows: “Involuntary manslaughter shall consist in the killing of a human being without any intention to do so. . .” “Wherever a homicide is neither justifiable nor malicious it is manslaughter.” Mixon v. State, 7 Ga. App. 805 (4), 807 (67 S. E. 699). The jury, whose peculiar province it is to pass upon the facts, have said by their verdict that this homicide was neither justifiable nor malicious. Then, was it intentional? We are sure that from the evidence every unprejudiced mind must be convinced beyond a reasonable doubt that the defendant intended to kill the deceased. Immediately after the blow which felled' the deceased and resulted in his death, and while standing “right at his feet,” the defendant said, “I told you, God damn you, that I would kill you if you hit my mother.” Here is a direct declaration from the defendant showing his intent to kill. In addition the intent may be inferred from the weapon used, an iron steelyard pea that weighed four pounds, and there is evidence to show that such a pea is a weapon likely to produce death. “Intention is often more strongly indicated by the main act than by its adjuncts. The" killing of a human being with an instrument likely to produce death is a stupendous fact as a guide to intention.” Weeks v. State, 79 Ga. 37 (3 S. E. 323). “To kill by using a deadly weapon in a manner likely to produce death will raise a presumption of intention to kill.” Moon v. State, 68 Ga. 687 (7). See also Hanvey v. State, 68 Ga. 612 (4). All men are presumed to intend the natural and proximate consequences of their action. When a man kills another by the use of means appropriate to that end, he is presumed to have intended that end. “When death results from the unlawful use of a deadly weapon, the law by presumption imputes to the slayer an intention to kill.” Gallery v. State, 92 Ga. 463 (17 S. E. 863). “When one voluntarily shoots at another and the shot kills, the homicide can not be involuntary.” Smith v. State, 73 Ga. 79 (3). See also Stovall v. State, 106 Ga. 444 (3), 447 (32 S. E. 586) ; Johnson v. State, 4 Ga. App. 59 (60 S. E. 813). In each of the cases cited in the brief of plaintiff in error on this point, the evidence was not of such a character as to demand the finding that the implement was a weapon likely to produce death, and -that the blow was struck with intent to kill.

6. Complaint is made that the court failed to charge certain propositions of law, though timely written requests therefor were made. In approving these grounds the judge attached a note which showed that the request was made as follows: “Request the court to charge the jury before argument and before the court charges the jury 67 1910 of Criminal Code of Georgia 'and section 76, 1910 Criminal Code of Georgia, and 74 and 75 of the Criminal Code of 1910 of Georgia.” Where several requests for instructions were made en bloe and by reference to code-sections only, and some of .these were not appropriate or adjusted to the evidence, the court committed no error -in refusing them; nor could they be. properly treated as written requests for definite instructions. Wallis v. Heard, 16 Ga. App. 802, 803 (86 S. E. 391); Woodard V. State, 18 Ga. App. 59 (2) (88 S. E. 825) ; Grant v. State, 122 Ga. 740 (5), 744 (50 S. E. 946); Thompson v. O’Connor, 115 Ga. 120 (5), 123 (41 S. E. 242). .However, as far as the requests were pertinent they were covered by the charge.

Decided October 31, 1917.

Indictment for murder; conviction of manslaughter; from Dougherty superior court — Judge Harrell. June 9, 1917.

The defendant, Sam Conley, and his mother were croppers on the plantation of Melvin, who had sent for the defendant to pick cotton. He and his mother came to the place, and were met by Melvin, who insisted on the defendant’s picking cotton for him. The mother objected to this, and insisted that the defendant should pick his own cotton. Hot words between the mother and Melvin followed. Fannie Glover was in the lot, and Fannie White was on the porch of her home; each only a few yards away. The former testified: “I went to the gate and I says, ‘Sam, you all hush so much jawing, and go on,’ and Mr. Melvin told me to hush and go back and milk the cows, and I went on .back* and I heard Fannie White say, ‘Oh,.Sam has done killed Cap’n!’ And I broke and run back to the gate, and when I got there Sam was right at his feet; and he says, ‘I told you, God damn you, that I would kill you if you hit my mother.’ Mr.' Melvin was lying down at that time and Sam was standing right up; and I says, ‘Sam, don’t hit him no more.’ I told him then to go and get Mr. ■ Bennett.

■. . Mr. Melvin did not speak any more. After Sam" Conley cursed him and told him he would kill him, God damn him, he called his mother and started on down the road. The woman, Carrie Conley, was also lying on the ground, and Sam helped her up and carried her on with him. They both, Mr. Melvin and Carrie, lay there on the ground together, one on face and the other on back. Carrie was not hurt, and I didn’t see any sign of a wound on her. I saw a stick and a steelyard pea lying there on the ground where Mr. Melvin was. The stick was a long slabby piece-of board. I do not know just how long it was. I do not [know] what it was nor what it had been used for, but he had it then for a gate-latch. . . It only took me about a minute from the time I came to the cow-pen to where the two bodies lay. Fannie White told me that Sam knocked Mr. Melvin with tho steelyard pea, that him and Carrie was tussling over the gate-latch, and Mr. Melvin slung the gate-latch loose'and that Sam struck him. She said Mr. Melvin had the gate-latch and struck Carrie and knocked her down, and then the boy hit him with the steelyard pea. That is all she said at that time. She did not say that Mr. Melvin first struck her with his fist, but that he hit her one time when he flung the gate-latch away from her. She said the blow knocked her down. And then is when the boy struck him with the steelyard weight. Fannie White told me right then and there that Carrie jerked the latch out of the gáte and run twixt Mr. Melvin and Sam with the latch. Carrie had the latch, and said Sam [Mr. Melvin?] grabbed the latch, and they were tussling over the latch, and when he slung her loose from the latch he knocked her with it, and she said that when he knocked Carrie that Sam knocked him with the steelyard pea. She said Carrie took the latch out of the gate and run between Sam and Mr. Melvin when she got it. That is all she said about it right then. She did not say anything about why they both had hold of it. Sam had picked up his mother and gone down the road with her when she told me this. She said that Mr. Melvin and Carrie had hold of the latch. I never asked her then and there where Carrie got the latch from.” There was evidence that the steelyard pea was of iron and weighed about four pounds; that the gate-latch was about five feet long, two inches wide, and seven eighths of an inch thick; and that each was a weapon likely to produce death.

7. The defendant was deprived of no defense to which he was entitled under the laws of the State or under the facts of the case. The evidence was sufficient to support the verdict of voluntary manslaughter, and the court did not err in refusing a new trial.

Judgment affirmed.

Broyles, P. J., and Harwell, J., concur.

John R. Cooper, S. B. Lippett, for plaintiff in error.

R. Q. Bell, solicitor-general, W. I. Geer, F, A. Hooper, contra.


text:
    9043.
    WILLIAMS v. THE STATE.
    The evidence authorized the verdict, and there was no error in overruling the motion for new trial.
    Decided October 31, 1917.
    Accusation of possessing intoxicating liquor; from city court of Brunswick — Judge Krauss. May 11, 1917.

      John T. Powell*Franlc PL. Harris, for plaintiff in error.
    A. H. Crovatt, solicitor, A. D. Gale, contra.
   Harwell, J.

The defendant was charged in the accusation with being in possession of intoxicating liquors. The State’s witness, a policeman of the city of Brunswick, testified substantially that he went to Fernandina, Florida, on an excursion boat on Friday, on or about April 21, 1917; that as he was coming down to the boat he saw the defendant with a suit-case, — the one exhibited to him at the trial; that this suit-case and two or three trunks were unloaded at Fernandina onto a dray or truck, which was driven to the saloon of Jim Peterson and unloaded; that he went to this saloon and saw the defendant, with Peterson’s saloon-keeper, load up these articles with the whisky, and then the suitcases and the trunks were taken from the saloon and carried back to the boat, again loaded on the boat, and brought on to Brunswick that night and unloaded at Brunswick onto the docks and into the warehouse, and were in the warehouse when they broke it open to get them out; that defendant was on the boat and came to Brunswick the same night; and that he did not see the defendant after he came off the boat until the following Sunday, about noon, when the defendant was arrested by him; that the boat left Brunswick about 9 o’clock in the morning and returned to Brunswick about 7 p. m.; that they had to break open the warehouse to get the whisky in the suit-eases, including the defendant’s suitcase; that there was no one with the defendant on this trip. The State offered in evidence the suit-case and its contents, consisting of from twenty to thirty bottles-of whisky, in quart and half-pint bottles. The defendant admitted that he went to Fernandina on the excursion boat, but denied that he had any suit-ease with him; he denied that the suit-case and the liquor belonged to him; he admitted that he did assist a woman off the boat by carrying her suit-case, stating that she was on the boat with a suit-case and a little shaggy dog,, and that she carried the dog, and he carried the suit-case. The defendant made a motion fox a new trial on the general grounds only.

We think the evidence points irresistibly to the conclusion that the defendant made this trip to Feraandina for the purpose of procuring a stock of liquors, and that the liquors were in his custody and control when he and the boat and the liquors arrived within the limits of Glynn county. The jury so found, the able trial judge approved their finding, and we will not disturb the verdict.

Judgment affirmed.

Broyles, P. J., and Bloodworfh, J., concur.


text:
    9045.
    Mager et al. v. The State.
   Bloodworth, J.

1. “When a demand for trial is entered in a criminal case either as a matter of right or by special permission, the State is bound to try the accused at the term when the demand is entered or at-the next succeeding term. Trial or discharge are the only two alternatives.” Nix v. State, 5 Ga. App. 835 (63 S. E. 926); Flagg v. State, 11 Ga. App. 37 (74 S. E. 562); Collins v. Smith, 7 Ga. App. 653 (67 S. E. 847); Thornton v. State, 7 Ga. App. 752 (67 S. E. 1055); Walker v State, 89 Ga. 482 (15 S. E. 553); Kerese v. State, 10 Ga. 95; Durham v. State, 9 Ga. 306.

2. The fact that a mistrial was declared at the next term after the defendant had made demand for trial is not á reason for refusing his discharge. “The court could have put the defendant on trial before another jury at the same term of the court.” Little v. State, 54 Ga. 24, 25; Collins v. Smith, supra.

3. Where at the term in which a discharge would be effective under a demand the accused was tried and a mistrial declared, he should remain in attendance on the court, but “it is not incumbent upon him to take further . . steps to bring the case to trial, and he does not waive it by remaining silent and not calling the attention of the court to the matter thereafter. . . The State is the pursuer; he is the pursued; until the State moves towards him he may remain still. . . If the State neglects to try him within the time prescribed by law, it operates as a conclusive and final abandonment of the prosecution.” Thornton v. State, supra. While voluntary absence of the defendant on the call of his ease would be a waiver of his demand, yet, before the State can take advantage, of this, the ease must be called by the prosecuting attorney- and the defendant given an opportunity to respond. Especially is this true when the judge, in the order overruling the application for discharge, says: “However, in justice to the defendants, the court states that this case had been assigned for trial on the date of the mistrial, there being a number of non-resident witnesses, and was neither set for trial nor called for trial at any subsequent date during said term of court.” The statement by the trial judge, in this order, that the defendant was not in attendance on the court during the remainder of the term after the mistrial would not be 'sufficient in itself to show the “voluntary absence” of the defendant.

Decided October 31, 1917.

Accusation of larceny; from city court of Cartersville — Judge Aubrey. June 15, 1917.

James B. Whitalcer, John S. Wood, for plaintiffs in error.

Watt E. Milner, solicitor, contra.

Judgment reversed.

Broyles, P. J., and Harwell, J., concur.


text:
    9057.
    LAWSON v. THE STATE.
    There was not sufficient evidence to corroborate the testimony of the confessed accomplice, and the trial judge erred in overruling the motion for a new trial.
    Decided October 31, 1917.
    Indictment for burglary; from Harris superior court — Judge Howard. June 23, 1917.
    Freeman Lawson was convicted of the burglary of the drug-store of one McDonald, and he excepts to the overruling of his motion for new trial, based on the gen eral grounds only. The only question that is raised is, whether there is sufficient evidence connecting the defendant with the burglary, independent of the testimony of one James Hamlin, a self-confessed accomplice. The witness McDonald testified that his drug-store was entered at night through a side window near the rear, a little slot machine was broken open and the money taken out, and as much as ten dollars in nickels and about half a cupful of pennies were taken out of the money drawer. He testified that the defendant came often into his store; that after the burglary he found tracks behind his store. He stated: “There was a peculiarity about the defendant’s track —just kinder a nubby ended track, didn’t make the print of any heel. That was on the outside of the store. The defendant's toes is cut off.” This witness also stated that he saw the defendant the next morning, searched his person and his residence, but did not find any money at all. The witness Moon, sworn for the State, also saw the track outside the store, about ten or twelve feet from the store in the patch, where some one had crossed over the fence, leading from the store. He stated: “There was a peculiarity about the track, seemed like it didn’t have any toes. I do not know anybody with a track like that except Freeman Lawson and Mr. Bill Lane. Freeman Lawson has a nub foot. The person who crossed the wire made no print of his toes.” The State’s witness Jackson testified: “I saw Freeman Lawson after the burglary with some money — less than a dollar total; nickels and dimes, I think, was the denomination.”

      J. R. Lunsford, for plaintiff in error.

      G. F. McLaughlin, solicitor-general, contra.
   Harwell, J.

(After stating the foregoing facts.) It will be seen that the only testimony, other than that of the accomplice, relied upon to connect this defendant with the perpetration of the crime is the evidence of the tracks found behind the prosecutor’s store, and the evidence that defendant was seen, after the burglary, •with some money, less than a dollar, in the denomination of nickels and dimes. It appears that the tracks seen near the store were made, according to the State’s evidence, either by this defendant or a certain Lane, these two persons being the only ones in the community whose foot would make a track of this nature. In our opinion the evidence as to this track is the only circumstance connecting the defendant with this burglary. The testimony that defendant was seen with “some” money after the burglary, consisting of nickels and dimes in amount less than a dollar, does not connect him in any manner with a burglary wherein more than ten dollars in nickels and pennies were stolen. If this were true there were doubtless a number of good citizens in the same community who could have been, with equal certainty, connected with this crime. It is true that the evidence in corroboration of The testimony does not have to be sufficient of itself to warrant a conviction ; but, on the other hand, it must be sufficient, independently of the accomplice’s testimony, to, connect the defendant with the commission of the crime. It must go further than casting a grave suspicion on the accused; it-must lead to the inference that he is guilty. Taylor v. State, 110 Ga. 151 (3) (35 S. E. 161); Bishop T. State, 9 Ga. App. 205 (70 S. E. 976). Had the tracks found behind the store been conclusively shown to be those of the defendant, and the money with which he was seen shown to be in similar denominations and proportions with the money stolen, the circumstances connecting him with the crime would have been much stronger. However, under the testimony, it is as fair to conclude that the tracks were made by another person in the same community, having the same peculiarities in his foot, as that they were made by defendant. The fact that a small amount of money of different denomination from that stolen was in the defendant's possession at some indefinite time after the burglary is no circumstance at all. We are further influenced in reaching this conclusion by the overwhelming and uncontradieted evidence showing the bad character of the accomplice, ■ his unworthiness of belief, his previous contradictory statements to the effect that the accused Was not involved in this crime, -and his expressed purpose, prior to this trial, to make the defendant suffer .for some past grievance. Though the credibility of the accomplice was solely for the jury, these circumstances go to show that the rule in force in this State as to the sufficiency of corroborative testimony in such cases should be applied in this case with not less care than in those formerly decided by our courts. Because of the insufficiency of the evidence, the court erred in overruling the defendant's motion for a new trial.

Judgment reversed.

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


text:
    9059.
    Brooks v. The State.
    Decided October 31, 1917.
    . Accusation of misdemeanor; from city court of Macon — Judge Guerry. July 6, 1917.

      Hunter & Wimberly, for plaintiff in error.

      Will Gunn, solicitor, contra.
   Bloodworth, J.

When considered in connection with the explanatory notes of the trial judge, attached to the grounds of the amended motion for new trial, and in the light of the entire charge, there was no error in the excerpts complained of, the evidence authorized the verdict, and,the new trial was properly refused.

Judgment affirmed.

Broyles, P. J., and Harwell, J., concur.


text:
    9061.
    SMITH et al. v. THE STATE.
    1. The alleged newly discovered evidence as set out in the affidavit attached to the motion lor new trial is too -indefinite to be of any value as evidence, and is not such as would probably cause a different verdict on another trial.
    2. The evidence, though entirely circumstantial, authorized the verdict, and the trial judge did not err in overruling the motion for new trial.
    Decided October 31, 1917.
    Accusation of possessing intoxication liquor ; from city court of Jefferson — Judge Mahaffey. July 6, 1917.

      W. W. Starh, -for plaintiffs in error.

      S. J. Nix, solicitor, contra.
   Harwell, J.

The defendants were found guilty of being in possession of more 'than two quarts of intoxicating liquor. They made a motion for new trial on the general grounds, and upon the special ground of newly discovered evidence, which was overruled, and they excepted. The testimony for the State was circumstántial. It shows that on the morning of September 22, 1916, at two or three o’clock, the defendants were seen by a policeman to pass through Maysville in a car. There was a bulk of something in the back of the car. The top of the car was up and the defendants had what looked like an apron or lap-robe. The State’s witness, the policeman, had suspected the defendants of transporting liquor, and attempted once before to stop the ear of .the defendant Smith, but the latter would not stop. On this occasion he threw his light in front of them and tried to get them to stop but they would not. Witness heard, the following day, that this car had broken down near Maysville, and in the afternoon went down there and found the defendants and the car. They had stopped in a corn patch, about three fee.t from the road. Nothing was in the car except a storm apron. He began to search in the brush around and near the car, and found twenty gallons of liquor in a keg under a brush pile;' out from that a little piece he found a fifteen-gallon keg under another brush, a five-gallon keg up further in the woods, and another five-gallon keg, or can. The car was not even with the kegs, it was a little to the left of the kegs. The kegs had no label or revenue marks on them. There were two other men with the defendants when the policemen arrived. The stopper was out of the first keg the witness saw. The defend7 ants were sworn for each other, and each made also a statement in his own behalf. They denied having any knowledge of the liquor, and claimed that the axle of the car had broken, and that the defendant Smith had left Daniel with the car and had gone to Athens to get assistance, in order to repair it, and had found his nephew Benton in Athens and had returned with Benton and another man to assist him in repairing the car. These were the other two men who were present when the policeman arrived in the afternoon. Smith further claimed, in explanation of his trip, that he lived in White county, and that he was going to Madison county to get Benton, his nephew, and take him to see his (witness’s) father, who was then about to die. The defendant Daniel stated that he had remained with the car while the other defendant went to Athens, and said that he did not know when Smith left the car that morning to go to Athens, but that Smith got back about three o’clock in the afternoon; that he got out on the other side of the road and went to sleep under some trees and slept a part of 'the day; he heard automobiles pass that day, he didn’t know how many; that after Smith left no car stopped there and put out anything; that no car stopped. No explanation was made as to what had become of the bulk of something which the policeman saw in the back of the car. No explanation was made of the failure of the defendant Smith to stop when the policeman attempted to stop his car. Benton, the nephew, who lived in Madison county, stated that Smith had not let him know that he was coming after him in an automobile, that he never had been after him before, that he went to White county, but that it was eight or ten days after this. The testimony further showed that nothing was placed over the five-gallon keg, but it could not be seen from the road; nothing but some oak brush was over the rest. There was no mark of any kind on the kegs.

The alleged newly discovered evidence is based on the affidavits of one Culberson and one Adams.. The record shows no supporting affidavit in reference to Adams, and his affidavit will not be considered. The supporting affidavit in reference to Culberson is hardly a compliance with the requirement of the law that it must show the witness’s residence, associates, character, and credibility, and means of knowledge.. The affidavit is simply to the effect that on the evening of the 31st of September, about dark, the deponent passed along the public road between Maysville and Commerce, near the place where Mr. Highfield lives, where there is a small body of woods; that as he passed he saw some parties, and from their appearance thought they had some whisky, made inquiry if he could get some, was informed that he could, and got about two quarts. The next day he heard about a car being broken down near this place. We think that this affidavit is too indefinite to be of any value as evidence. It is not shown by the affidavit of this witness who the parties were that the witness claimed to have seen. The affidavit does not show that this is the same place where the defendant’s car was broken down and where the policeman found the whisky. It is not probable, therefore, that a different result would be produced on another trial by the submission of this evidence. We think, therefore, that the court did not err in overruling this ground of the motion for a new trial.

The evidence, while circumstantial, in our opinion authorized the verdict. The evidence connecting the defendants with this liquor found near their car by the policeman, it is true, is weak, but there are some things in the evidence which are not explained by the defendants, and there was no attempt at explanation. No explanation was offered by them of the bulk of something which the State’s witness saw in their car as it passed through Maysville. It is hardly probable that other parties would have placed this liquor under the brush near the road and left it there during the day without some of them being seen near by. One of the defendants himself said that no automobile stopped there during the day. A mind seeking for the truth would hardly come to any other conclusion from the evidence than that this bulk of something which loomed up in the' car as it passed through Maysville was this liquor, and that when the defendants’ car broke down on the side of the road they removed it to the hiding places in the nearby brush pile, where it was found by the State’s witness.

Judgment affirmed.

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


text:
    9070.
    Whidby v. The State.
    Decided October 31, 1917.
    Petition for certiorari; from Jones superior court — Judge Park. May 15, 1917.

      J. A. Henderson, for plaintiff in error.

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

1. “A motion for a mistrial was not the appropriate remedy when, upon a x>oll of the jury, the party against whom the verdict was rendered contended that it appeared from the answers of one of the jurors that it was not his verdict.” Macon Railway &c. Co. v. Barnes, 121 Ca. 444 (49 S. E. 282).

2. The court did not err in refusing to sanction the certiorari.

Judgment affirmed.

Broyles, P. J., and Harwell, J., concur.


text:
    9073.
    JACKSON et al v. THE STATE.
    In an indictment for larceny the ownership of personal property may be laid in an agent having lawful possession of the property for another; but is not properly laid in a servant having the 'mere custody of goods for his master. The ownership in this case was properly laid in the husband, who had charge of the plantation as agent for his wife, and was properly not laid in the superintendent of the plantation.
    Decided October 31, 1917.
    Indictment for larceny; from Muscogee superior court — Judge Howard. June 30, 1917.
    The defendants in this case were indicted for larceny from the house, and were found guilty. The property stolen was stolen from a gin-house, and was-alleged to be “the personal goods of James A. Lewis.” James A. Lewis testified: “I am the husband of Mrs. Eobena Lewis, and she owns the plantation from which the property was stolen, and it was her property. I am the authorized special agent of my wife and have charge of the place. I made the trade as agent for my wife with Mr. Pullen to superintend the plantation, but it was in her name. Mr. Pullen is under my direction and orders. I pay off the hands. Mr. Pullen has a key to the gin-house and there is also one at my home in Columbus for my use. I go down to the plantation and look after it for my wife, but Mr. Pullen had the actual possession of the property stolen at the time, as I was not at the plantation, and he lives on the place. I go to the place often and am in general charge. Sometimes I go every day.” Pullen, a witness for the State, testified: that he was superintendent of the plantation owned by Mrs. James A. Lewis, and the contract of employment was made by Mr. James A. Lewis,"agent of his wife; that the property did not belong to Mr. Lewis; he was agent of his wife and would come down two. or three times a week; that Mr. Lewis gave witness instructions for his wife, but witness looked 'after the place as superintendent and received a salary for the same ;■ that Mr. Lewis paid off the hands.

      Richard Terry, Ed Wohlwender, for plaintiffs in -error.

      O. F. McLaughlin, solicitor-general, contra.
   Harwell, J.

(After stating the foregoing facts.) It is contended-that the State failed to prove the ownership as laid in the indictment; that the ownership should have been alleged either in Pullen or Mrs. Lewis. In our opinion the evidence sustains the allegation of ownership as laid in the indictment. It shows that the husband had charge of the property as agent for his wife. Pullen was simply an employee or servant. In larceny the ownership‘may be laid in the agent, but not in a servant. “A mere servant has only the custody of goods, and he can maintain no action for them; hence he has in them no ownership.” Ownership may be laid in “any other person having the lawful possession of the article, in distinction from a bare custody thereof.” 2 Bishop Crim. Procedure, §§ 721, 722. “An agent has sufficient special property in goods of his principal in'his charge or care to support an indictment which describes them as his property. . . Where servants have in their custody the goods of the master the property should be laid in the master.”. 2 Russell on Crimes, 1287, 1288. “It is a clear maxim of the common law that where one has only the bare custody of the goods of another the legal possession remains, in the owner. '. . A mere servant or employee has no special property” — that is, such as will support the allegation of ownership in an indictment for larceny. “A distinction is drawn in some of the cases between the possession of a -servant and that of an agent, an agent being considered a bailee who obtains actual possession of the goods, as distinguished from the mere custody of an ordinary servant.” 17 R. C. L. § 49. “In an indictment for larceny or for burglary the ownership of personal property may be laid in the person having actual lawful possession of the same, although he may be holding it as agent or bailee of another.” Bradley v. State, 3 Ga. App. 622 (3) (58 S. E. 1064). See also 25 Cyc. 93; State v. Jenkins, 78 N. C. 478. This ruling is in accord with the decision of the Alabama Supreme Court in the case of Heygood v. State, 59 Ala. 49, where it is held: “A superintendent of another’s plantation is the servant of the employer; and an indictment for larceny, which charges that the corn stolen was the property of such superintendent, is insuffi'cient.” There was no variance between the’ allegation of ownership and the proof thereof in the instant case, and the trial judge did not err in overruling the motion for new trial.

Judgment affirmed.

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


text:
    9081.
    ALCORN v. THE STATE.
    1. Although it is improper for the State’s counsel to comment upon the failure of the defendant to put his character in evidence, the instruction of the court to the jury in this case, that “he would have no right to argue the defendant’s character, or against the defendant that he did not put his character in evidence,” and that the jury should not consider that fact, was sufficient to cure such error.
    2. The evidence supports the verdict, the venue of the crime was sufficiently shown by the evidence, and the court did not err in overruling the motion for new trial.
    Decided October 31, 1917.
    Indictment for larceny; from Dodge superior court — Judge Littlejohn presiding. June 27, 1917.

      John B. Cooper, for plaintiff in error.

      W. A. Wooten, solicitor-general, contra.
   Harwell, J.

Will Alcorn was indicted jointly with one Gilbert and one Darsey for the larceny of a Jersey bull, the property of one Yareen, and was found guilty. The main contention of the defendant in his motion for a new trial was that the venue of the larceny was not proved in Dodge county. The evidence as to venue was circumstantial, and is substantially as follows: The prosecutor missed this bull some time in July. The bull had never been known to range outside of Dodge county, but had always ranged on certain lands within that county. On the night of July 3. at about eight o’clock, the witness Daniels saw this bull being driven along the road past his home in Chester, in Dodge county, by two men, whom he did not recognize. These two men got over a fence and hid as some one passed them on the road, then came out of hiding, and, with the bull in their possession, proceeded on down the road in the direction of Dublin, Ga. On the following day Alcorn, together with his two codefendants, carried this bull to one Currie on a farm near Dublin, in Laurens county, and sold the bull to Currie for about $16, the defendant telling Currie at the tibie that he had brought the bull from Chester, Dodge county. About a week later the prosecutor came to this farm, identified the bull as his property, and was given possession of it. The bull owned by the prosecutor was positively'identified as the same one seen driven along the road at night, and the one bought from the defendánt by Currie on the following day. We think this evidence sufficient to-authorize the finding that the defendant stole the bull in Dodge county, carried it to Laurens county, and sold it there. Hence, the venue was properly laid in either Dodge or Laurens county.

Judgment affirmed.

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


author: Bloodwobth, J.

text:
    9088.
    Butler v. The State.
   Bloodwobth, J.

1. “Where the presiding judge by his general charge presents to the jury the law governing the substantial and controlling issues in a case, the mere failure or omission to charge upon minor points, to which his attention is not called at the time, is not ground for a new trial.” Thomas v. State, 95 Ga. 485 (4) (22 S. E. 315).

2. The court should instruct the jury as to all the methods by which a witness may be impeached, so far as such instructions are authorized by the evidence; but failure to do so will not require the granting of a new trial, where no written request was made to charge the jury as to the mode of impeachment omitted from the instructions on that subject. Millen &c. R. Co. V. Allen, 130 Ga. 656 (5) (61 S. E. 541) ; Roberson v. State, 4 Ga. App. 833 (62 S. E. 539).

3. If fuller instructions were desired, a legal and timely written request therefor should have been made.

4. When considered in connection with the entire charge, it was not erroneous to charge the jury that “If you believe beyond a reasonable doubt, under the rules of law given you in charge, that the defendant, Harrison Butler, at any time within two years previous to the swearing out of the accusation, was guilty of selling whisky as alleged in the accusation, you should find him guilty, in which event the form of your verdict would be, ‘We, the jury, find the defendant guilty.’ ”

Decided October 31, 1917.

Accusation of selling intoxicating liquor; from city court of Dublin — Judge Flynt. July 20, 1917.

Twitty é Sicks, J. B. Green, for plaintiff in error.

S. P. New, solicitor, contra.

5. The' jury believed the evidence for the State, the .verdict was approved by the trial judge, and this court will not interfere.

Judgment affirmed.

Broyles, P. J., and Harwell, J., concur.


text:
    9104.
    HOLMES v. THE STATE.
    1. The instruction of the court to the jury that they should disregard any language the solicitor might use in reference to the defendant, but should pass upon the case upon the evidence and the defendant’s statement, rendered harmless the improper remark made by the State’s counsel in his argument to the jury.
    2. The evidence supports the verdict of guilty of shooting at a dwelling-house, and the fact that the defendant may have been guilty, in the same transaction, of unlawfully shooting at another does not render this verdict illegal.
    Decided October 31, 1917.
    Accusation of unlawful shooting; from city court of Dublin— Judge Flynt. July 25, 1917.

      Smyth Burch, J. B. Burch, for plaintiff in- error.

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

Donnie Holmes was tried and convicted on an accusation charging him with unlawfully shooting at, towards, and into the dwelling-house of one Elbert Higgins. (Acts 1910, p. 137; Park’s Penal Code, § 115 (a).) The evidence shows that the deefndant passed by the house of. the prosecutor, who was defendant’s stepfather, at about seven or eight o’clock at night, and while in front of this house began cursing. The prosecutor told him to stop cursing. Defendant went on down the road, but in half an hour returned and stopped before the house. The prosecutor testified: “He was there cursing and telling me to come out; he was begging and prevailing me to come out — just dared me to stick my head out of the door.” The defendant fired at the house with a shotgun, the shots striking over the porch, where the porch joined the house. The testimony of other witnesses also shows clearly that defendant shot the house, and the testimony of others shows that he afterwards admitted the shooting. It is contended that the evidence made out a case of unlawful shooting at another, and that therefore there could be no conviction of the offense of shooting at a dwelling, as charged in the accusation. There is no merit in this contention. The defendant was convicted of unlawfully shooting at the dwelling-house; and should the facts show that he was at, the same time unlawfully -shooting at another, it would not render this conviction illegal. Compare Smallwood v. State, 9 Ga. App. 300 (2) (70 S. E. 1124).

Judgment affirmed.

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


text:
    9115.
    STEPHENS v. THE STATE.
    1. The court did not err in admitting in evidence, over objection of the defendant, testimony showing his possession of the whisky, Or in admitting the whisky in evidence, or in failing to charge as requested.
    2. The charge of the court, to which exception is taken was not erroneous or harmful to the accused.'
    3. The evidence was sufficient to sustain the verdict, and there was no error in overruling the motion for a new trial.
    Decided October 31, 1917.
    Accusation of possessing intoxicating liquor; from city court of Jesup — Judge Clark. July 14, 1917.
    J. B. Thomas, for plaintiff in error.

      W. B. Gills, solicitor, contra.
   Harwell, J.

The defendant was convicted of having whisky in his possession. The testimony of the State’s witness shows that on the day alleged he saw the defendant alight from a train with a grip in his hand; that when that defendant saw the witness, who was a constable, the defendant dashed off; witness halloaed at him and pursued him; defendant dropped the grip and reached for a pistol, and witness shot at him three or four times; defendant got away, but witness recovered the grip and found whisky in it. The four bottles of whisky found in the grip were admitted in evidence. The defendant made no statement. We think this' evidence sufficient to warrant the conviction.

Í. The trial judge did not err in admitting the testimony showing the defendant’s possession of the whisky or in admitting in evidence the whisky found in his grip, over the objection -that it was obtained from him by a constable -without a warrant and without authority of law, and was obtained by holding him up and forcing him to throw down the evidence which was in his possession. Smith v. State, 17 Ga. App. 693 (88 S. E. 43). Neither did the court err in refusing to charge the jury that, if the defendant objected to the arrest or to the disclosure of the whisky, this evidence would not be admissible against him, and that he should be acquitted. Smith v. State, supra.

3. The following charge was objected to as prejudicial to the defendant: “In all criminal trials the defendant has a right to make or not to make to the court and jury a statement in his own behalf. If the defendant sees fit to make no statement, he is acting within his rights, and such failure should not be considered for or against him.” We do not think this charge was subject to the criticism made. 'It is simply intended to warn the jury not to let the fact that the defendant made no statement influence them one way or the other; and is favorable to the defendant, rather than prejudicial. .

Judgment affirmed.

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


text:
    9121.
    Adams v. The State.
   Bloodworth, J.

In an indictment for simple larceny, which, alleges that the article stolen was “one bicycle painted red, and bearing trade-mark ‘Climax/ and of the value of $15.00, and of the personal goods of Bradford & Geeslin, a partnership composed of Frank S. Bradford and C. B. Geeslin,” the description of the property is sufficient to meet the requirement that “in indictments for larceny ‘the description [of the stolen propex’ty] should be simply such as, in connection with the other allegations, will affix-matively show the defendant to be guilty, will reasonably inform him of-the instance meant, and put him in a position to make the needful preparations to meet the chax-ge.” Ayers v. State, 3 Ga. App. 305 (59 S. E. 924). “The description of the thing must be always one of degi'ee. It would be an encouragement to cxdme to require every imaginable mai'k of identity to be mentioned. Certainty to a reasonable extent is all the law requires,” Brown v. State, 44 Ga. 300, 301 (2). See also Paterson v. State, 122 Ga. 587 (3, 4) (50 S. E. 489); Bone v. State, 120 Ga. 866 (48 S. E. 356) ; Powell v. State, 88 Ga. 32 (13 S. E. 829) ; Rivers v. State, 57 Ga. 28; Wheeler v. State, 18 Ga. App. 15 (88 S. E. 712). The description of the bicycle alleged to have been taken was sufficiently definite to identify the transaction under investigation, was full enough to put the accused on notice of what he was charged to have stolen, and gave him all the information necessary to enable him to prepare for trial. Bone v. State, supra.

Decided October 31, 1917.

Indictment for larceny; from city court of Macon — Judge Guerry. July 14, 1917.

L. B. Aultman> J. D. Hughes, for plaintiff in error.

Will Gunn, solicitor, contra

Judgment affirmed.

Broyles, P. J., and Harwell, J., concur.


text:
    9142.
    Courson v. The State.
    Decided October 31, 1917.
    Indictment for burglary; from Bacon superior court — Judge Summerall. July 12, 1917.
    The defendant, with two others, was indicted for breaking and entering the depot of the Atlanta, Birmingham and Atlantic Railroad Company, and stealing therefrom thirty quarts of whisky. The evidence for the State showed that the depot was broken into and certain liquors taken therefrom, as alleged in the indictment. Early Thomas, an accomplice jointly indicted with this defendant, testified that he, the defendant, and Herschel Johnson went to the depot, and, while he watched, the other two broke and entered the depot and obtained the liquor. The only evidence, except that of the accomplice, by which the State sought to connect the accused with the crime, was that of H. W. Andrews and L. S. Guthrie, and a rule nisi granted at the November adjourned term, 1915, preceding the trial of the accused in October, 1916. Andrews testified: “I know Joe Courson; I remember the day his case was called for trial here at the November adjourned term of the court in 1915. I saw him here in town immediately before his case was called. I saw him some time that morning before "his case was called for trial, down on the street. I heard his case called. I had seen him down town some time that morning. I don’t know whether he was gone or not, but he was not in the court-room; but I couldn’t swear positively whether he was gone or not; he was not around the court-room. I didn’t see him leave.” Guthrie testified as follows: “I was a bailiff at the November adjourned term of this court in the year 1915. I was in court when Joe Courson’s case was called. Joe Courson was not in court then. I had just passed him a few minutes before then on the street before I came up here. I don’t think anybody said for me to go down there and hunt him. That wds the first_time the case was called. He never did appear. He didn’t appear in court at that term. I had gone down the street after some other witnesses, and saw him down there, and come right on back in a hurry. His case was sounded and the bond forfeited right after I got in the court-house.”
   Bloodworth, J.

T. “It is not essential that the testimony in corroboration of an accomplice shall of itself be sufficient to warrant a verdict of guilty, or that the testimony of the, accomplice shall be corroborated ' in every material particular; but it is necessary, in addition to the corroboration of the accomplice, that the testimony shall be of itself sufficient to raise an inference that the defendant is guilty. The corroborative evidence in the present ease is wholly insufficient for that purpose, and the conviction, resting solely upon the testimony of a confessed accomplice, should have been set aside.” Bishop v. State, 9 Ga. App. 205 (70 S. E. 976).

2. “To authorize a conviction on the testimony of an accomplice, the same must be corroborated by evidence connecting the accused with the perpetration of the offense. Corroborating evidence which, without going to this extent, merely casts a grave suspicion upon the accused is not sufficient.” Taylor v. State, 110 Ga. 151 (35 S. E. 161).

3. As the case is to be remanded because of these rulings, it is unnecessary to pass upon the errors alleged in the amendment to the motion, for a new trial, for if errors were committed as therein claimed, they will probably not occur on another trial.

Judgment reversed.

Broyles, P. J., and Harwell, J., concur.

Padgett & Watson, for plaintiff in error.

M. D. Diclcerson, solicitor-general, contra.


author: BiiOODWORTH, J.

text:
    9148.
    FRASER v. THE STATE.
    1. If during a trial for misdemeanor the accused (being under bail and. free from constraint.) voluntarily absents himself from the court-room while the jury is considering the case, he will have no .ground for a plea of former jeopardy should a mistrial be declared and the jury be discharged while he is thus absent.
    2. The,grounds of the motion .for new trial are without merit.
    Decided October 31, 1917.
    Accusation of misdemeanor; from city court of Hinesville— Judge W. C. Hodges. July 17, 1917.

      N. J. Norman, Ben A. Way, for plaintiff in error.

      Melville Price, solicitor, contra.
   BiiOODWORTH, J.

1. The defendant had given bond. “He was under no restraint .or constraint by the action of the court,” but was free to go and come at his will. While it is the right’ of the defendant to be present at all stages of his trial, this rule is established for his benefit; and if he voluntarily absents himself from the court-room while the jury is considering his case, he thus waives his right to be present should occasion arise therefor and a mistrial be declared. “Where a defendant who is out' on bail voluntarily absents himself, he can not complain if the trial proceeds or the verdict is received in his absence.” Barton v. State, 67 Ga. 653 (44 Am. R. 743); Robson v. State, 83 Ga. 167 (9) (9 S. E. 610); Wilherson v. State, 14 Ga. App. 475 (81 S. E. 395). The Barton and Robson cases, supra, were both felonies. The rules of law are more strictly enforced in felonies than in misdemeanors; and if a verdict can he received in a felony case when the defendant is under bond and voluntarily absent, and where he loses the .right of demanding that the jury be polled, a fortiori a mistrial can be declared in a misdemeanor case when the defendant is under bond and voluntarily absent, and loses no right hy not being present.

On the trial of an issue raised by the plea of former jeopardy in this case the defendant swore: “I was not present when the jury trying my case was discharged and a mistrial declared. I was not in the house. I was under bond. My attorneys, I suppose, were present, but I did not know anything about it.” This was the only evidence submitted. Under the foregoing rulings and reasoning we must conclude that the judge properly overruled the plea, even though he may have given a wrong reason therefor and “stated from .the bench that he knew the defendant was in the court-house at the time.” While “the court should not overrule a plea because of matter of fact which is outside both of the plea and the record, although such extrinsic matter may be within the knowledge and recollection of the judge” (Lovett v. State, 80 Ga. 255, 4 S. E. 912), yet, as said above, even if the judge erroneously based his ruling on such extrinsic matter, the ruling was still correct. The bond of the' defendant “obligated him to be present during the whole trial, including the time when the verdict was rendered; and if he was absent, it was not because he was prevented from being present by any action of the court or of any officers thereof, Tjut by his own volition.-' He should not be allowed to take advantage of his own laches.” Wilkerson v. State, supra. Of course this ruling does not apply when the defendant is in jail and his absence is enforced and involuntary, as in such cases as Bagwell v. State, 129 Ga. 170 (58 S. E. 650).

2. The foregoing ruling disposes of the question raised by the exceptions pendente lite. The grounds of the amended motion for a new trial are without merit, and the judge properly refused a new trial.

Judgment affirmed.

Broyles, P. J., and Harwell, J., concur.


text:
    9159.
    Brooks v. City of Macon.
    Decided October 31, 1917.
    Certiorari; from Bibb superior court — Judge Mathews. July 28, 1917.

      Hunter & Wimberly, for plaintiff in error.

      W. D. McNeil, contra.
   Bloodworth, J.

1. This court is a court for the correction of errors in law alone. “It has no authority to entertain an assignment of error that the verdict is contrary to the evidence, if there is any evidence at all to support the verdict. This gx-ound in the motion for new trial is addressed to the discretion of the trial judge, upon whom is imposed the duty of being satisfied with a verdict before he approves it.” Bell v. Aiken, 1 Ga. App. 36 (57 S. E. 1001).

2. While a rather weak case was made out by the city, yet we can not as a matter of law say that the evidence was not sufficient to satisfy the recorder, beyond a reasonable doubt, of the guilt of the accused; and, his finding' having been approved by the judge of the superior court, this court will not interfere with it.

Judgment affirmed,.

Broyles, P. J., and Sarwell, J., concur.


text:
    9167.
    Wright v. The State.
   Harwell, J.

The bill of exceptions recites that the defendant was convicted in the city court of Leesburg for violation of the liquor law; that he made a motion for a new trial, and made amendments thereto, which were duly approved. It further recites: “The said motion, pursuant to the order of the court, came on for a hearing at chambers, in Leesburg, Ga.; and said motion was, on the eighth day of August, 1917, overruled by the court on each and all grounds therein stated.” It then specifies the portions of the record material to “a clear understanding of the errors complained of.” There is no exception to the overruling of the motion for a new trial, or to any judgment of the court. Hence there is no question raised for this court to pass upon. See Citizens Banking Co. v. Paris, 119 Ga. 517, 518 (46 S. E. 638), and cases cited; Ocean Steamship Co. v. Blumberg, 16 Ga. App. 861 (86 S. E. 1070), and citations.

Decided October 31, 1917.

Accusation of misdemeanor; from city court of Leesburg— Judge Martin. August 8, 1917.

R. R. Forrester, for plaintiff in error.

J. B. Hoyl, solicitor, contra.

Writ of error dismissed.

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


author: Luke, J.

text:
    8367.
    KERSEY v. McGOWAN UNDERTAKING COMPANY.
    Upon the question whether the contract of the plaintiff in error was an original undertaking or one of suretyship, the finding of the jury that it was his original undertaking was not authorized by the evidence.
    Decided November 1, 1917.
    Certiorari; from Brooks superior court — Judge Thomas. December 9, 1916.

      Bennet & Harrell, for plaintiff in error.

      Branch & Snow, contra.
   Luke, J.

The controlling question in this case is whether Kersey’s contract was an original undertaking or was a contract of suretyship, which, under the statute of frauds, must have been in writing to be enforceable. Civil Code, (1910), § 3222 (2). Upon this question the plaintiff’s representative testified: “My recollection is that W. M. Kersey said for me to let Taylor have the coffin and dress, and he would see that I got my money. . . I chm’ged the account to J. S. Taylor and W. M. Kersey, and I am loolcing to loth of them for the money [italics ours]. . . In a subsequent conversation between me and Kersey, in the presence of J. H. Hunter, Kersey said: U did not tell you I would pay for the goods, I told you I would see that you got your money.’” As to the negotiations at the time the credit was extended, Kersey testified: “I then stated that I would keep in behind J. S. Taylor and make him pay so much each month, and I would see that the McGowan Undertaking Company got its money.” The suit was against Taylor and Kersey jointly. Under this evidence the j'ury were not authorized to find that Kersey’s contract was an original undertaking, that is, that the debt sued for was the sole undertaking of Kersey. Baldwin v. Piers, 73 Ga. 739; Maddox v. Pierce, 74 Ga. 838; Cruse v. Foster, 76 Ga. 723; Crowder v. Keys, 91 Ga. 180 (16 S. E. 986); Cordray v. James, 19 Ga. App. 156 (2) (91 S. E. 239). It was, therefore, error to overrule the certiorari sued out by Kersey.

Judgment reversed.

Wade, C. J., and Jenkins, J., concur.


author: Jenkins, J.

text:
    8403.
    Bateman v. Cherokee Fertilizer Company.
    Decided November 1, 1917.
    Complaint; from city court of Houston county — Judge Greer presiding. January 5, 1917.

      W. J. Wallace, C. -C. Richardson, for plaintiff in error.

      Walter DeFore, J. C. Estes, contra.
   Jenkins, J.

1. Error can not be successfully assigned upon the court’s failure to submit to the jury instructions as to defenses which, though pleaded, are not supported by any evidence. American Ins. Co. v. Bailey, 6 Ga. App. 424 (6) (65 S. E. 160) ; Bullard v. Brewer, 118 Ga. 918 (3) (45 S. E. 711). Grounds 10 and 14 of the motion for a new trial are therefore without merit, under the view which this court takes of the evidence.

2. Where a wife enters into an unambiguous written contract whereby she is to become the owner of certain timber, and agrees to pay a stipulated price therefor, she is bound by her obligation as purchaser, if the seller committed no fraud upon her nor knew of any committed by ■ the husband, notwithstanding the fact that by reason of such purchase an indebtedness of the husband, based upon a prior sale of the same property to him, was to be cancelled. Where the purpose, object, and effect of the contract are that the wife shall pay only for what she bought, the debt is as much her own as if there ha'd been no previous sale of the property to her husband. Hull v. Sullivan, 63 Ga. 127; Strickland v. Gray, 98 Ga. 667 (27 S. E. 155). The excerpts from the charge of the court contained in grounds 2, 3, and 4 of the amendment to the motion for a new trial were therefore not erroneous.

3. The jury having returned no verdict against the defendant on the second and third counts of the plaintiff’s petition, which were based upon open accounts, there is no merit in the assignments of error contained in grounds 7 and 8 of the motion for a new trial.

4. The verdict is sustained by the evidence, and, in view of the rulings . above made, there is no merit in the other grounds of the motion for a new trial.

Judgment affirmed.

Wade, C. J., and Luke, J., concur.


text:
    8451.
    Harrell v. Holman.
    Decided November 1, 1917.
    Complaint; from Decatur superior court — Judge Spooner presiding. January 22, 1917.-

      W. V. Custer, for plaintiff in error. Hartsfield & Conger, contra.
   Jenkins, J.

1. Where, in a promissory note given for the purchase-price of a mule, the description of the mule was followed by the words, “Above property not being guaranteed,” the word “guaranteed” must be taken as synonymous with “warranted;” and this provision not being limited, and being an express refusal to warrant, to the exclusion of .the implied-warranty, no defect in the mule for which the note was given could be pleaded by way of defense. Branch v. James, 4 Ga. App. 90 (60 S. E. 1027); Mock v. Kemp, 17 Ga. App. 448 (87 S. E. 608); Denson v. Battle, 17 Ga. App. 575 (87 S. E, 842); Toller v. Hewitt, 12 Ga. App. 496 (2) (77 S. E. 650).

2. The trial court did not err in sustaining the general demurrer to the defendant’s plea, and entering up judgment for the plaintiff.

Judgment affirmed.

Wade, O. J.,-and Lulee, J., concur.


text:
    8456.
    Harrell et al. v. First National Bank of Eastman.
   Jenkins, J.

J. E., W. L., and J. W. Harrell were the owners of certain personal property, and executed a mortgage thereon to the First National Bank of Eastman, in order to secure promissory notes. Subsequently the property was sold by its owners to Cooper and Hardy, who by the terms of the sale agreed to assume liability for the debt due to the bank and secured by the mortgage; it being further ■ agreed that the title was to remain in the vendors until payment of- the purchase-money. Cooper and Hardy executed their notes to the bank for the debt covered by the Harrell notes, the latter being .surrendered by the bank and accepted by the Harrells with the following entry endorsed thereon: “This note is satisfied so far as J. F. Harrell, W. L. Harrell, and J. W. Harrell Jr. are concerned, except that the mortgage on the bottling plant is held as security for notes of Cooper and Hardy, purchasers of the said plant, which said Cooper and Hardy notes represent balance due under said mortgage.” The mortgage held by the bank, securing the Harrell notes, was not surrendered, but was retained. The bank subsequently foreclosed the mortgage executed by the Harrells, who filed an affidavit of illegality setting up that the substitution of new notes for their notes operated as payment of their notes, so as to void the mortgage given to secure' payment thereof. The case was tried by the presiding judge on an agreed statement of facts, and he rendered judgment allowing the foreclosure 'to proceed. Held, that the judgment was not erroneous. ' While it is true that a mortgage can have no existence apart from the debt which it is given to secure (Civil Code (1910), §§ 3256, 3257; Walker v. Neil, 117 Ga. 733, 740, 45 S. E. 787), it is a well-settled rule of law that the intention of the parties is controlling as to whether or not, when one note, is given in substitution for another, the substituted note is to operate in ex-tinguishment of the original debt (Civil Code (1910), § 4314; Norton v. Paragon Oil Can Co., 98 Ga. 470, 25 S. E. 501; Holmes v. Langston & Woodson, 110 Ga. 861 (5), 870, 36 S. E. 251; Gariton Supply Co. v. Battle, 142 Ga. 605, 83 S. E. 225, L. R. A. 1916A, 926) ; and where, as in this case, it clearly appears, by the express exception contained in the written agreement, that the satisfaction of the original note was conditioned upon the retention of the mortgage as a valid lien, such a substitution would not operate in extinguishment of the mortgage. 5 R. C. L. 456, note 6, and note 10; 27 Cyc. 1404, 1412; 1 Hilliard on Mortgages (2d ed.), 448 (4), (5), (6), et seq.

Decided November 1, 1917.

Mortgage foreclosure; from Irwin superior court — Judge George. December 19, 1916.

M. B. Cannon, Quincey & Bice, for plaintiffs in error.

J. H. Milner, contra.

Judgment affirmed.

Wade, O. J., and Lulce, J., concur.