text:
    11460.
    SAVANNAH & STATESBORO RAILWAY COMPANY v. FIRST NATIONAL BANK OF STATESBORO.
    Decided July 19, 1920.
    Irrespective of whether or not the defendant was liable as a common carrier (which it is unnecessary to decide in this ease), there was evidence showing liability on the part of the defendant as a warehouseman, and, the verdict in favor of the plaintiff having been approved by the trial judge, this court will not control the judgment overruling a motion for a new trial based on the general grounds only.
    Action for damages; from city court of Statesboro — Judge Proctor. March 8, 1920.

      Johnston & Cone, for plaintiff in error.

      Fred T. Lanier, contra.
   Smith, J.

The First National Bank of Statesboro brought suit against the Savannah & Statesboro Railway Company as initial carrier, for the value of 24 bales of sea-island cotton, which were destroyed by a great conflagration. The cotton in question was delivered to the defendant railway company by C. M. Rushing, and bills of lading were issued to him, with order to notify a certain cotton factory in the city of Savannah. The plaintiff, First National Bank of Statesboro, advanced money to pay for the cotton shipped, and became the transferee of the defendant’s bills of lading. The defendant, in defense to the plaintiff’s contention that it was liable both as a common carrier and as a warehouseman, urged that it had fully complied with its contract as a common carrier, and that its liability, if there was any, was only that of warehouseman. The parties went to trial before a jury on the issue thus raised, and a verdict was returned in favor of the plaintiff for the value of the cotton sued for. Defendant filed a motion for a new trial, and to the order of the judge overruling the motion it excepted, and now asks that the verdict be set aside solely on the ground that it is contrary to law and evidence, and without evidence to support it.

Irrespective of whether or not the defendant was liable as a common carrier, which would require the exercise of extraordinary care in the preservation and protection of the property entrusted to it, there was sufficient evidence to authorize the jury to find that the defendant was liable as a warehouseman. Briefly summarized the evidence adduced on the trial shows that the cotton, at the time it was destroyed by fire, was stored on a pier within 500 feet of a large dilapidated frame building, between 75 and 100 feet high, and from 400 to 500 feet long, covered with pine shingles. It was in this building that the fire originated. On the west side of the pier, and near this building, was a shed in which there was stored a large quantity of nitrate of soda. One of the doors on the west side of the pier where the cotton was stored was open, thus exposing the cotton to a shed or building in which were stored chemicals and other combustible matter. One witness for the plaintiff testified that when he reached the island, after the fire had been in progress for some time, the hose was locked in a box and had not been put in use. This witness also testified that it was his opinion that if they had had sufficient water, the fire could have been •checked even after he reached the island, but that the “ flow of water was so poor that they resorted to using buckets to put out the small fires; . . that they had no water pressure. The pressure would not throw the water more than 10 or 12 feet, or maybe 15 feet.” The chief of the fire department of the city of Savannah testified that he had, prior to the fire, called the railroad’s attention to the defects in its equipment, and had pointed out that in case of a fire, the wiring of the electric pump would be tlie first thing to burn, and that they would have no power to force water, and that this is exactly what occurred before the fire in question was of any consequence at all. This witness further testified that about thirty per cent, of the hose “was bursted and no account, and would not stand any strain on them,” and that this rotten condition could have been ascertained by the railroad company if it had tested the hose. Testifying further this witness said: “We had a low tide that day, but I won’t say we had the lowest tide we ever had, but one of the lowest. The west winds had blown the tide out, and when the electric pump-house eventually got fixed so they could pump, the water lacked that much (indicating several inches) getting up to the suction; and, by the way, that has not been remedied. The tide flowing so low as that is a thing that does not happen often, . . but unfortunately that was one of the days. It is true that the pump could have been built so that would not have happened; they could have extended the suction low enough, so as to prevent the water getting out of reach at any time. ”

This evidence was, as above suggested, sufficient to authorize the jury in finding that the defendant did not exercise ordinary care and diligence (the degree of care required of a ■warehouseman) to prevent the destruction of the cotton by fire. The Supreme Court has said that in determining what was extraordinary diligence, a jury should take into consideration “the situation and surrounding facts, including the existence of an emergency,” Atlanta & West Point R. Co. v. Jacobs Pharmacy Co., 135 Ga. 113 (68 S. E. 1039); and we know of no reason why the same rule should not apply to the consideration and determination of whether or not a defendant had used ordinary care and diligence.

Judgment affirmed.

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


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    11481.
    Griffis v. Buckofzer.
    Decided July 19, 1920.
    Certiorari; from Eulton superior court-—Judge Bell. March 24, 1920.

      Moore & Pomeroy, Coles & Savage, for plaintiff.

      Walter W. Visanska, for defendant.
   Smith, J.

1. Where a guest of a hotel leaves upon the bed of the room occupied by him a large sum of money, approximately $176, together with a railroad ticket, and there is posted upon the door of the room the following notice: “The management will not be responsible for money, jewelry, or other valuables of any kind, unless deposited in the office for safe-keeping and a receipt given for the same,” the innkeeper will not be liable for the loss of such money or other property, if he has complied with section 3510 of the Civil Code (1910) by providing “an iron safe, or other place of deposit for valuable articles, and by posting a notice thereof.” Jones v. Savannah Hotel Co., 141 Ga. 530 (81 S. E. 874, 51 L. R. A. (N. S.) 1168).

2. The undisputed evidence showing that the notice set out above was in fact posted upon the door of the room occupied by the plaintiff, and that the hotel-keeper had a safe for the deposit of money and valuables of guests, the evidence demanded a verdict for the defendant, and the trial judge did not err in directing such a verdict.

3. The assignments of error as to the admission and exclusion of evidence will not be considered, as they are not insisted upon by the plaintiff in error.

4. The judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

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


author: Luke, J. Bloodworth, J.,

text:
    11206.
    Davis v. The State.
    1. Charles E. Davis and H. D. Leon were jointly indicted for the offense of forgery, it being alleged that the accused “did wrongfully, falsely, and fraudulently make, sign, and forge the name of L. E. Bleckley on and to a certain deed.” A copy of the deed — a warranty deed to land purporting to be from L. E. Bleckley as grantor—was incorporated in the indictment, and it was further alleged that “ said acts were done with intent to defraud Mrs. L. E. Bleckley.” In its formal parts the indictment followed the statute. The defendant Davis demurred to it, both generally and specially. Held:

      (а) The indictment was not subject to any of the demurrers. Penal Code (1910), §§ 231, 954.
    (б) The averment that the accused forged the name of the grantor to the deed is equivalent to an averment that they forged the deed. See 12 R. C. L. 139, sec. 2, and dictionary definitions of “forgery.”
    (c) The fact that one person’s name appears to have been forged with intent to defraud a different parson does not render the indictment defective. Barron v. State, 12 Ga. App. 342 (Id) (77 S. E. 214).

      (d) Where two or more persons are jointly indicted for forgery, it is not necessary that the indictment show how they could or did jointly take part in the manual act or acts charged against them. The particular part played by each is a matter to be shown by evidence, and not by pleading. Jackson v. State, 87 Ga. 432 (13 S. E. 689) ; Roane v. State, 97 Ga. 195 (22 S. E. 374); Mangham v. State, 9 Ga. App. 559 (2) (71 S. E. 922).

      (e) The part of the indictment set out above contains a sufficient averment of intent to defraud. The indictment need not on its face show in what manner or by what means it was intended to consummate the fraud. Travis v. State, 83 Ga. 372 (9 S. E. 1063) ; Shope v. State, 106 Ga. 226 (1) (32 S. E. 140); McLean v. State, 3 Ga. App. 660 (1) (60 S. E. 332. A further averment as to the ownership of the land at any time was wholly unnecessary, and the averment made as to its “present” ownership and the source of the owner’s title was mere surplusage, whether the pleader’s purpose therein was to show how the intended fraud might be consummated or not.
    2. While the testimony of an accomplice must be corroborated by other evidence, which directly connects the accused on trial with the perpetration of the crime,- before such testimony will authorize a conviction of a felony, yet the law does not require that the corroborating evidence shall in and of itself alone be sufficient to warrant a verdict of guilty, or that the testimony of the accomplice shall be corroborated in every material particular. On the contrary, slight evidence that the crime was committed by both defendants, and identifying them with it, will corroborate the testimony of the accomplice and warrant a conviction. Penal Code (1910) § 1017; Evans v. State, 78 Ga. 351; Pritchett v. State, 92 Ga. 33 (1) (18 S. E. 350); Boswell v. State, 92 Ga. 581 (17 S. E. 805); Chapman v. State, 112 Ga. 56 (2) (37 S. E, 102); Dixon v. State, 116 Ga. 186 (7) (42 S. E. 357); Nance v. State, 126 Ga. 95 (1) (54 S. E. 932).

      (a) In this ease the testimony of the accomplice tended to prove the case as laid, and it was sufficiently corroborated, by other evidence.
    3. A person may be principal in the first or the second degree in the offense of forgery as well as in any other offense. Renal Code (1910), § 42. And as principals in the first and second degrees are punished alike, no distinction between them need be made in the indictment. Bradley v. State, 128 Ga. 20 (2) (57 S. E. 237). Furthermore, where two persons are jointly indicted for forgery, each may be convicted upon evidence showing that he- was either the actual perpetrator of the crime or was present aiding and abetting the other in its commission. McLeod v. State, 128 Ga. 17 (3) (57 S. E. 83) ; Futch v. State, 137 Ga. 75 (3) (72 S. E. 911).
    4. Where in the trial of a criminal case a witness for the State testifies that he dealt with the accused as requested in a letter which he received by mail, purporting to be from a third person, of whom he professes to know nothing, and counsel for the State and for the accused thereupon elicit, without objection, so much of the contents of the letter as tend to explain the conduct of the witness, it affords no cause for a new .trial that the court refuses to admit in evidence the entire letter when subsequently tendered by counsel for the accused. Renal Code (1910), § 1023. Moreover, the ground of the motion for a new trial in which error is assigned as to that ruling is defective. It is not shown that the letter was received in due course of mail.
    5. The instructions given with reference to accomplices, venue, and the statute of limitations were sufficiently full and fair. The refusal to give the requested charges on the same subjects does not, therefore, afford cause for a new trial.
    6. Witnesses were examined with respect to numerous documents. While one witness was being interrogated by the State’s counsel with reference to a paper then in the hand of the witness the defendant’s counsel insisted that the witness should identify the paper with greater certainty. The judge thereupon questioned the witness as to the nature and the date of the paper, and, after the witness had answered, remarked: “Now there is no doubt about it.” It is contended that this remark by the court was an expression of opinion as to what had been proved, in violation of section 1058 of the Penal Code. Held: The complaint is without merit. The remark of the judge, when considered in connection with the attendant circumstances, is capable of but one construction, to wit, that the previous doubt, if there was any, as to the subject-matter of the testimony had been removed. Moreover, there was no request for. a mistrial on account of the statement complained of.
    7. - Where evidence is offered and objected to, and counsel for the party offering it states that he expects to offer further evidence removing the ground of objection, and the court thereupon admits the evidence temporarily, expressly or impliedly reserving to the objector the right to renew his objection unless the ground thereof is satisfactorily removed, a failure to renew such objection before verdict amounts to a waiver thereof. The 12th ground of the amendment to the motion for a new trial comes within this rule. Stone v. State, 118 Ga. 705 (9) (45 S. E. 630, 98 Am. St. Rep. 145) ; Quinn v. State, 22 Ga. App. 634 (2) (97 S. E. 84), and eases cited. Moreover this ground is defective, in that the evidence objected to is not set out in the ground.
    8. The deed alleged to have been forged bearing a date in 1852 and an imprint of the “Georgia Journal,” and there being evidence to show that its written portion was upon a photo-engraved form, and that photo-engraving was not in use in this country in 1852, and did not come into commercial use until two or three decades thereafter, and. a genuine deed dated in 1847 and written upon a substantially similar form having been admitted in evidence for the sole purpose of camparison with the forged deed, there was no error in admitting testimony to show that the genuine deed was written upon a type-printed form, or to show or explain any other point of similarity or difference between the two deeds. The 13th and 14th grounds of the motion for a new trial are therefore without merit.
    9. An illogical argument of counsel affords no ground for declaring a mistrial, even if it be conceded that the argument complained of was illogical. Holmes v. State, 7 Ga. App. 570 (2) (67 S. E. 693) ; Adkins v. Flagg, 147 Ga. 136 (2a) (93 S. E. 92), and cit. Especially is this true where, as in this case,, the court, in overruling the motion to declare a mistrial, added, in the hearing of the jury, that it was for them to determine “if the inferences the solicitor-general and other counsel draw are correct.” The 15th ground of the motion for a new tidal is therefore without merit.
    10. The defendant’s counsel having apparently sought, during the cross-examination of the witness Leon, to discredit the motive and the conduct of the solicitor-general, because of his several conferences with Leon in the preparation of the case for trial, the court did not err in permitting the solicitor-general, on redirect-examination of this witness, to ask liow many times he had been called from the jail for such conferences; nor was there error in permitting the answer of the witness to remain before the jury, the witness having replied: “Gentlemen, he (meaning the solicitor-general) has got a pile o'f papers there to fill up this desk two or three times, that he has gone over with me — papers that I have never seen before or gone over before.” Even if such a reply could have prejudiced the defendant’s cause, it was, by his own counsel, made proper matter for the jury, to prevent their being unjustly prejudiced against the State’s counsel. The 16th ground of the motion is therefore without merit. Stone v. State, 118 Ga. 705 (7) (45 S. E. 630, 98 Am. St. R. 145).
    11. Tlie court did not err in admitting in evidence a letter, purporting to be from Davis to Leon, saying, “ Herewith I send you a check for $20.00 on South Georgia matter,” Leon having previously testified that he received the letter by due course of mail, and that the remittance was a payment on his share of the proceeds of the alleged forgery, and there being other evidence to show that the letter (the body and signature to which were typewritten) disclosed the same peculiarities of the writing machine as numerous other letters written by Davis during the period in question, and it further appearing that the letter was discovered upon an official search of Leon’s room about the time of his arrest, and long before His confession of his own guilt or his agreement to testify as a witness for the State against Davis. Ragan v. Smith, 103 Ga. 556 (1) (29 S. E. 759); Lancaster v. Ames, 103 Me. 87 (68 Atl. 533, 17 L. R. A. (N. S.) 229) ; People v. Storrs, 207 N. Y. 147 (100 N. E. 730, 45 L. R. A. (N. S.) 860, Am. Cas. 1914 C, 196).
    Decided July 28, 1920.
    (a) This ruling disposes of the 17th ground of the motion far a new trial; and, upon the same principles and authorities, the 19th, 20th, 25th, 26th, 27th, 28th, 29th, and 30th grounds of the motion are without merit.
    12. The accused being on trial for the alleged forgery of a warranty deed, the fact that the grantee named therein did not return for taxation the land therein described, during any one of the several years of his purported ownership under the deed, was a proper circumstance for the consideration of the jury, and the court did not err in admitting proof thereof. The 18th ground of the motion for a new trial is therefore without mei'it.
    13. The court’s instructions were not erroneous for any of the reasons assigned in the 21st and 22d grounds of the motion for a new trial.
    14. Where a telegraph company is shown to have destroyed all original messages deposited with it for transmission by wire during a certain period, and the proved agent of the defendant on trial in a criminal case is shown to have received during that period a number of telegrams purporting to be from the accused, the subject-matter of which relates to the offense or some feature thereof, and is necessary to complete, or is consistent with, other proved correspondence between the accused and his said agent, the messages so delivered to the agent are admissible in evidence. Civil Code (1910), §§ 5759, 5760; Western Twine Co. v. Wright, 11 S. D. 521 (78 N. W. 942, 44 L. R. A. 438). The 23d ground of the motion for a new trial is therefore without merit.
    15. The evidence complained of in the 24th ground of the motion for a new trial not being set out therein or annexed thereto as an exhibit, the complaint will not be considered by this court.
    16. The venue was sufficiently proved.
    17. The evidence authorized the verdict, and no error of law appears.
    Indictment for forgery; from Fulton superior court — Judge Humphries. December 13, 1919.
    Application for certiorori was denied by the Supreme Court.

      Seaborn Wright, Samuel D. Hewlett, Nathan Harris, Barry Wright, T. T. Miller, for plaintiff in error.

      John A. Boykin, solicitor-general, E. A. Stephens, Herman E. Riddell, contra.
   Luke, J.

Charles E. Davis and H. D. Leon were jointly indicted for the offense of forgery. Davis interposed a demurrer to the indictment, which was overruled. He was then separately tried and convicted, and, his motion for a new trial being overruled, he brought the case here for review.

The indictment charged that “said accused, in the county of Fulton and State of Georgia, on the 21st day of November, 1917, . . did wrongfully, falsely, and fraudulently make, sign, and forge the name of L. E. Bleckley on and to a certain deed, the same being in form and substance as follows, to wit: . .; and said acts were done with intent to defraud Mrs. L. E. Bleckley, who is the present owner of said land, under the will of L. E. Bleckley, the grantee from the State of Georgia, and the acts herein complained of were and are contrary to the laws of said State, the good order, peace, and dignity thereof.” Incorporated in the indictment at the place above indicated was a warranty deed, dated November 20, 1852, purporting to have been executed by L. E. Bleckley, as grantor, to M. B. Millen, as grantee, and to convey all 'of lot of land No. 522 in the 5th district of “Appling (now Ware) County.” The deed also purported to have been duly attested. To that indictment Davis demurred (1) generally, and (2) because only a forgery of the grantor’s name, and not the deed itself, was charged; (3) because it did not appear how the two defendants “could jointly take part in the manual act of writing” the grantor’s name; and (4) because there is no allegation that the act of forging the name of L. E. Bleckley was done at that time with intent to defraud any person; “ the allegation in the indictment that said name was forged to said deed on November 21, 1917, for the purpose of defrauding a person who did not own the property before the finding of the indictment, on June 13, 1918, does not charge that the act was done with intent to defraud any one.” The opinion of this court upon all the grounds of the demurrer is announced in the headnotes.

The principles stated in headnote 2 need no elaboration. If any further discussion along that line is desired, it will be found in the authorities there cited, which are controlling. The only question for consideration here is the application of such principles to the facts of this case. In the trial of Davis his codefendant Leon testified as a witness for the State. Leon’s testimony establishes his own guilt of the offense charged as clearly as it tends to establish the guilt of Davis. It follows that his testimony stands, and must stand, as that of an accomplice. Stone v. State 118 Ga. 108 (3) (45 S. E. 630, 98 Am. St. Rep. 145.); Hargrove v. State, 125 Ga. 270, 273 (54 S. E. 164). The accomplice Leon testified' to the truth of every essential averment in the bill of indictment, unless it can be said that there was a material variance with respect to the form of the deed alleged to have been forged. As to this matter, the deed set out in the indicment describes the land as being in “Appling (now Ware) County.” The original deed shown by the evidence, and abundantly proved to be a forgery, is identical throughout, in both form and substance, with that set out in the indictment. Leon identified the deed in evidence and testified that it was a deed, and the only deed, which he had forged at the solicitation and dictation of the defendant Davis; but he further testified that at the time he so forged it and delivered it to Davis the land was therein described as being in “Coffee” county, and the names of the attesting witnesses did not appear. Both he and other wittnesses testify that these alterations in and additions to the proved original are in a different handwriting from the rest of the deed. In this connection, the documentary evidence shows correspondence by Davis at a date subsequent to the alleged and proved date of the original forgery, endeavoring to ascertain the name of the county from which Ware county was taken and the county in which the land in question actually lay at the time the forged deed purports on its face to have been executed. In our opinion these facts, in connection with the other evidence in the case, tend far more strongly to connect Davis with the actual perpetration of the crime alleged in the indictment than to create a variance between the allegations and the proof.

So far 'as the general grounds of the motion for a new trial are concerned, the only remaining question is: Does the other evidence in the case sufficiently corroborate the testimony of the accomplice? The matter above mentioned, on the question of variance, is itself one circumstance to be considered in this connection. In his statement to the court and jury the defendant Davis says that the only connection he had with the forged deed was as a real-estate agent, endeavoring to negotiate a sale of the land for Leon, whom he believed to be the bona fide owner thereof, and in whose chain of title the forged deed appears as one link, without any knowledge or suspicion on his part with respect to the fact of forgery. Leon testified, that he had known nothing of the land in question until Davis entered his (Leon’s) room one night in September, 1917, and suggested the forgery in order that they might both make some money out of it; that Davis dictated the contents of the deed while he wrote it; that there was no agreement between them as to how much he should receive for his share of the proceeds, but that Davis handed him $10 at that time, and subsequently remitted by mail $20, retaining for himself the balance of the proceeds of sale, whatever sum it may have been. The other evidence showed that, through one Carver, Davis negotiated a sale of the land for $1,000; that Carver remitted a half of that consideration, or $500 (less some small items of expense) to Davis; and that Davis thereupon remitted $20 to Leon, which sum was accompanied by a letter from Davis saying: “Herewith I send you check for $20.00 on South Georgia matter, and I am sorry it is not more, but the old codger put us to so much expense and after he got the money had to run him down, there was but little left.” In Pritchett v. State, 92 Ga. 33 (1) (18 S. E. 350), a burglary case, it was held that possession of some of the stolen goods by the accused on trial, and possession of some of them by a witness for the State, sufficiently corroborated the testimony of the witness, who testified that the building was burglarized by himself and the accused in the night by unlocking the door, entering the house, and stealing the goods. That decision seems in principle to be controlling here.

Leon further testified, that, in an effort to forge an apparently genuine signature to the deed, Davis furnished him with an old fi. fa., whereon an entry signed “L. E. Bleckley, Plffs Atty.,” appeared, and that, after some practice at imitating that signature, he signed an imitation thereof to the deed, and returned the fi. fa. and the forged deed together to Davis. The other .evidenc shows that when the deed was subsequently attacked as a forgery, in a civil proceeding brought by Mrs. L. E. Bleckley, Davis furnished to counsel for the defendant in that proceeding a like fi. fa. for use in establishing the genuineness of the forged signature. The fi. fa. so furnished by Davis for use in evidence in that case was put in evidence in this case, and was identified by Leon as the same fi. fa. he had used in forging the deed. It further appeared, from a comparison of the two papers, that the forged signature to the deed was an imitation of the genuine signature on the fi. fa., and that, althougn the signature on the fi. fa. was genuine, it was unlike any other of a great number of the proved genuine signatures of the same person covering a period of thirty years. Not only do these extrinsic matters serve to corroborate Leon, but they also tend to identify Davis with the preparation of the offense charged. The brief of the evidence, consisting of 159 pages, affords much additional evidence, both oral and documentary, corroborative of Leon and identifying Davis as the prime mover in and chief benficiary of the crime charged in the bill of indictment. In the opinion of this court, however, the evidence specifically referred to above affords sufficient corroboration of the testimony of the accomplice; and since his testimony relates to every essential of the offense charged, the conviction was warranted by the evidence.

It is contended that, since the indictment contains no allegation that the accused did “cause or procure” the crime to be committed, or that he did “willingly aid or assist” in so doing, as it might have done under the provisions of section 231 of the Penal Code, and since the evidence shows the forgery to have been the manual act of Leon, a fatal variance between the allegations and the proof results as to Davis. We do not agree with that contention. It may be that, under the peculiar provisions of the code as to forgery, an accessory before the fact to that offense is indictable as a principle in the first degree. Indeed, the principle stated in Stone v. State, 118 Ga. 705 (1) (45 S. E, 630, 98 Am. St. R. 145), seemingly leaves no question about it. But, however that m'ay be, under the principles announced in the third headnote, as applied to the facts of the instant case, the indictment was sufficiently broad in its terms to authorize the evidence, and the variance between the allegation and the proof is nominal, rather than real.

The remaining grounds of error, which deal with rulings made during the progress of the trial and with excerpts from the charge of the court, are ruled upon in the headnotes.

The guilt of the defendant in this case was abundantly established by the evidence, and his conviction was. approved by the trial judge in overruling the motion for a new trial. Every assignment of error has been carefully considered by this court, and there are no errors of law in the trial of the case that require a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.

Bloodworth, J.,

concurring specially. Without being committed to every statement in the foregoing opinion, I do not think that any of the assignments of error shows cause for a new trial of the case, and I concur in the judgment of affirmance. I am authorized to say that' Broyles, C. J., joins in this concurrence.


author: Broyles, C. J.

text:
    11588.
    Giddens v. The State.
    Decided July 28, 1920.
    Indictment for assault with intent to murder; from Harris superior court — Judge Howard. May 3, 1920. °
    The ground of the motion for a new trial referred to in paragraph 1 of the decision is: “Because the court erred in charging the jury as follows: 'All essentials of murder, save killing, must exist before one may be convicted of the offense of assault with intent to murder; and, in considering the instructions of the court on the subject of assault with intent to murder, you should view the transaction as if death had ensued at the time.’ The error in the foregoing charge consists in the failure to instruct the jury as to the difference between the rule where death results from an assault and where death does not result. . . The court should have instructed the jury substantially as follows: 'You would consider the testimony precisely as you would if death had resulted from the injury inflicted by the defendant, if any has been proven in this case. The only difference is that when death results, the intention to kill is presumed until the contrary appears; but when death does not result, the intention to kill is never presumed.’ . . The jury had no instructions from the court that would leave the question of the intention of the defendant to be determined by them, except the charge as follows: 'You should bear in mind that to constitute the offense of assault with intent to murder, there must have been an assault by one person upon another. An assault is defined in law as an attempt to commit a violent injury upon the person of another. Second, such assault must have been made with a weapon likely to produce death in the manner used; third, the assault must have been actuated by malice, either express or implied; and, fourth, made by the person making the assault with the specific intent to kill the person assaulted. The burden is on the State to show beyond a reasonable doubt that each- and all of these essential elements existed at the time the defendant committed the offense charged (if he did commit it), before he could be convicted of the offense of assault with intent to murder; and also that the offense, if it was committed, was not justified or justifiable under the law, and not in self-defense/”
   Broyles, C. J.

1. The excerpt from the charge of the court complained of in the special ground of the motion for a new trial, when considered in connection with the other portions of the charge set out in that ground, contains no reversible error.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Hardy & Peavy, for plaintiff in error,

cited: 90 Ga. 691; 92- Ga. 463; 106 Ga. 368; 125 Ga. 11; 9 Ga. App. 291 (1); 10 Ga. App. 831; 12 Ga. App. 540; 1 Ga. App. 118; 2 Ga. App. 418; 7 Ga. App. 541 (6).

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

cited: 7 Ga. App. 848; 125 Ga. 101.


author: Bloodworth, J.

text:
    11595.
    SENIOR v. THE STATE.
    Decided July 28, 1920.
    A conviction of having possession of intoxicating liquor was authorized by the evidence.
    Indictment for possession of liquor; from Harris superior court — Judge Howard. May 3, 1920.

      Hardy & Peavy, for plaintiff in error.

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

In no case where the motion for new trial contains the general grounds only, and there is a conflict in the evidence, is this court called upon to say which witness or witnesses spoke the truth. This is a question entirely for the jury, under a proper charge of the court. ■ In such a case all that is necessary for this court to determine is whether or not there is any evidence to support the verdict. In this case there is “some” evidence to support the verdict, for a witness testified: ■ “We found some whisky there about 35 steps from his house, right in the edge of the yard. It was just below his yard, on his premises. There was a gallon jug, two quarts, and three or four coca-cola bottles full.” The trial judge was satisfied with the verdict, and we cannot interfere.

Judgment affirmed.

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


text:
    11597.
    Davidson v. The State.
    Decided July 28, 1920.
    Indictment for misdemeanor; from Harris superior court — Judge Howard. May 3, 1920.
    The indictment charged Huse Davidson with having possession of intoxicating liquor. On the trial the sheriff (the sole witness) testified that on October 9, 1919, he found a 5-gallon jug, with about half a teacupful of whisky in it, behind a log, about 20 or 25 feet from the defendant’s house and in. his yard. The alleged newly discovered evidence was contained in an affidavit of John Billingslea, in which he said: “On the 8th day of October, 1919, deponent went with one Bobbie Lovelace, colored, to the residence of Huse Davidson. The said Bobbie Lovelace had with him a 5-gallon jug which he placed behind a log near the well at Huse Davidson’s house. The jug was empty or practically empty and contained no stopper.”

      J. R. Lunsford, J. B. Burnside, for plaintiff in error.

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

The alleged, newly discovered evidence is neither cumulative nor impeaching in its character, and would probably cause a different verdict to be returned upon another trial. The court, therefore, erred in overruling the defendant’s motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    11612.
    Watts v. Sanders.
    Decided July 28, 1920.
   Broyles, C. J.

Under the pleadings and the evidence as disclosed by the record, the verdict for the defendant was amply authorized, and none of the special grounds of the motion for a new trial shows cause for a reversal of the judgment below.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Action on contract; from city court of Greensboro — Judge Brown. May 14, 1920.

Miles W. Lewis, for plaintiff.

J. G. Faust, Noel P. Park, for defendant.


text:
    11618.
    DUMAS v. THE STATE.
    Decided July 28, 1920.
    1, 2. While an instruction to the jury, in regard to the offense of assault with intent to murder, that they should “view the transaction as if death had ensued,” is not harmful error if qualified by such instructions as immediately followed that instruction when it was first given in the charge of the court in this case, the repetition of such an instruction in a subsequent part of the charge, without proper qualification following it, was such an error as requires a new trial.
    3. More full instructions to the jury than those given as to assault and battery were not necessary, without request.
    Indictmeut for assault with intent to murder; from Harris superior court—-Judge Howard. May 3, 1920.

      J. B. Burnside, for plaintiff in error.

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

Plaintiff in error alleges that the court erred in charging the jury as follows: "All essentials of murder, save killing, must exist before one may be convicted of the offense of assault with intent to murder; and in considering the instructions of the court on the subject of assault with intent to murder, you should view the transaction as if death had ensued at the time.” Standing alone this charge would be erroneous, but under the ruling Giddens v. State, ante, 540 (103 S. E. 739), it was not harmful error, as it immediately preceded the following: “You should bear in mind that to constitute the offense of assault with intent to murder, there must have been an assault by one person upon another, as charged in the indictment. An assault is defined as an attempt to commit a violent injury upon the person of another. Second, such assault must have been made with a weapon likely to produce death in the manner used; third, the assault must have been actuated with malice, either expressed or implied; and, fourth, it must have been made by the person making the assault with the specific intent to kill the person assaulted. The burden is on the State to show, beyond a reasonable doubt, that each and all of these essential elements existed at the time the defendant committed the offense charged (if he did commit it) before he could be convicted of the offense of assault with intent to murder, and that the offense, if it was committed, was not justified or justifiable under the laws, and not in self-defense.”

Entirely disconnected from the foregoing instructions and further along in the charge, the judge charged as follows: “It is my duty, as applied to one of the defenses set forth in this case by the defendant, and in addition to his denial of each and all of the allegations as made in the indictment, to define for you what justifiable homicide is, keeping in mind that you should view this transaction, in order to understand and apply the law to the facts in the case, as if death had resulted at the time.” This was not qualified thereafter in the charge. To tell the jury, without any qualification, that they “should view this transaction, in order to understand and apply the law to the facts in the case, as if death had resulted at the time,” was error requiring the grant of a new trial.

The court having in general terms, and correctly, charged the jury on their right under certain circumstances to find the defendant guilty of assault and battery, if a fuller charge on this branch of the case was desired, a request for it should have been made as required by statute.

Judgment reversed.

Boyles, C. J., and Luke, J., concur.


text:
    11619.
    Hammontree v. The State.
   Broyles, C. J.

1. Where in an indictment for burglary the ownership of the place alleged to have been burglarized is laid in a name which imports a corporation, “the presumption is that it is a corporation, and, in the absence of affirmative proof by the accused that no such corporation existed, and where there is no allegation in the indictment that it was a corporation, it is not necessary for the State to prove the fact of incorporation. And where a final judgment has been rendered, a judgment is not void, nor voidable, for the mere want of such proof. ” Vaughn v. State, 17 Ga. App. 268 (1) (86 S. E. 461). Under this ruling the first special ground of the motion for a new tidal is without merit.

2. The defendant’s conviction was amply authorized by the evidence, exclusive of the testimony of his accomplice. The court, therefore, in the absence of a timely and appropriate written request, did not err in failing to instruct the jury upon the law applicable to the weight to be given the testimony of an accomplice.

Decided May 15, 1920.

Indictment for burglary; from Whitfield superior court —Judge Tarver. May 15, 1920.

George G. Glenn, for plaintiff in error.

Joseph M. Lang, solicitor-general, contra.

3. In the light of the facts of the ease and of the charge as a whole, there is no substantial merit in any of the other assignments of error upon the charge of the court.

4 Hie verdict was amply authorized by the evidence, and it was not error to overrule the motion for a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Luke, J.

text:
    11621.
    Lanier v. The State.
    Decided Judy 28, 1920.
    Conviction of seduction; from Bulloch, superior court—Judge Lovett. May 15, 1920.
    Paragraph 1 of the decision relates to the following extract from the charge of the court; “The test of a virtuous woman, under this law, is whether she had, at the time of the alleged seduction, had sexual intercourse with another man; that is to say, with a man other than the defendant on trial. If she had, she was not a virtuous female. If she had not, she was a virtuous female.” The court, after charging that before the jury could convict the accused, it must be shown that the person named in the indietment as having been seduced was a virtuous unmarried female, instructed them as follows: “A ‘virtuous unmarried female means a woman of physical purity, a virgin, a woman who has never had sexual intercourse, and does not mean a woman with an entirely pure mind and heart. Physical chastity, not moral or intellectual chastity, is the test by which to determine a woman’s virtue at the time of her seduction. However, if you find in this case any evidence of a debauched mind of the female alleged to have been seduced, — if there is any evidence in this case of a lewd and lascivious nature on her part, or like testimony, ■—■ you may consider such testimony in determining whether the female had parted with her virginity before the alleged seduction and was not at that time a virtuous female within the contemplation of the statute.” Then followed the language of the extract first quoted, and the court added: “Unmarried females who are virgins are virtuous, and those who by their own consent have ceased to be virgins are not virtuous. You should estimate the woman alleged to have been seduced, as a virtuous female, in this case, unless the evidence directly, or circumstances, show and satisfy you that, she had lost her virtue prior to the alleged seduction, by having illicit intercourse.”
   Luke, J.

1. The excerpt from the charge of the court complained of, when considered in the light of the entire charge and the facts of the case; contains no reversible error.

2. The evidence in the ease was conflicting. It was for the Jury, under proper instructions from the court, to credit the witnesses who testified before them. The jury believed the evidence for the State, which, if credited, authorized the verdict. Since the trial judge has approved that verdict, and there being no errors of law on the trial of the ease, this court can not set the verdict aside.

3. The alleged newly discovered evidence and the counter-showing thereto were heard by the trial judge. This court can not say that it was error, upon the ground of the newly discovered evidence, for the court to overrule the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.

Deal & Renfroe, F. T. Lanier, for plaintiff in error.

Walter F. Grey, solicitor-general, R. Lee Moore, contra.


text:
    11629.
    Hallman v. The State.
    Decided July 28, 1920.
    Indictment for assault and battery; from Webster superior court ■—Judge Littlejohn. May 15, 1920.

      J. F. Souter, M. A. Walker, for plaintiff in error.

      Jule Felton, solicitor-general, contra.
   Bloodworth, J.

The motion for a new trial contained the usual general grounds only. The evidence was conflicting; the jury believed the evidence for the State, and convicted the defendant. In such a ease where there is any evidence to support the verdict, and it is approved by the trial judge, this court is powerless to interfere.

Judgment affirmed.

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


text:
    11631.
    Dedge v. The State.
    Decided July 28, 1920.
    Indictment for drawing check, without funds to pay it; from city court of Baxley— Judge Lawrence. May 27, 1920.

      H. L. Williams, for plaintiff in error.

      C. H. Parker, solicitor, contra.
   Broyles, C. J.

1. The special grounds of the motion for a new trial, complaining of alleged errors of omission in the charge of the court, are without merit. In the absence of timely and appropriate written requests for more particular instructions the charge was sufficiently full.

2. The verdict was authorized by the evidence.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Ltjke, J.

text:
    11632.
    Decatur v. The State.
    Decided July 28, 1920.
    Accusation of public indecency; from city court of Macon —■ Judge Guerry. May 21, 1920.

      Early W. Butler, for plaintiff in error.

      Will Gunn, solicitor, contra.
   Ltjke, J.

The evidence authorized the conviction of the defendant. There is no merit in the assignment of error upon the excerpts from the charge of the court. The charge of the court was full and fair, and if more specific instructions to the jury were desired a timely written request should have been made therefor. It was not error, for any reason urged, to overrule the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    11639.
    HOWELL v. THE STATE.
    Decided July 28, 1920.
    An indictment drawn under section 245 of the Renal Code of 1910, which fails to set forth the name of any person, firm, or corporation that the defendant intended to defraud, is fatally defective, and a verdict and judgment of guilty upon a trial under the indictment are void and mere nullities, and a motion to arrest the judgment should be sustained notwithstanding that the indictment was not demurred to.

      Indictment for forgery; from Bibb superior court—■ Judge Thomas presiding. May 15, 1920.

      Hubert F. Rawls, Charles A. Glawson, W. J. Grace, for plaintiff in error.

      Charles H. Garrett, solicitor-general, contra.
   Broyles, C. J.

The indictment in this case was drawn under section 245 of the Penal Code of 1910, which reads as follows: “If any person shall fraudulently make, sign, forge, counterfeit, or alter, or be concerned in the fraudulent making, signing, forging, counterfeiting, or altering of any other writing not herein provided for, or shall fraudulently utter, publish, pass, or tender the same, knowing the said writing to be forged, or counterfeited, or falsely and fraudulently altered, with intent to defraud any person, firm, or corporation, or shall fraudulently cause or procure the same to be done, he shall be punished by imprisonment and labor in the penitentiary for not less than two years nor longer than five years.” (Italics ours.)

All criminal statutes must be strictly construed, and so construing this section of the Penal Code (which is based upon a statute: Cobb’s Dig. 802; Acts 1907, p. 57), it clearly appears that, to constitute a violation thereof, there must be an intent to defraud some .particular person, firm, or corporation, and that an indictment drawn thereunder which does not charge such an intent sets forth no crime under this code section. It follows, that where a person has been convicted and sentenced in a trial had under such an indictment his motion to arrest the judgment should be' sustained, notwithstanding that he had failed to demur to the indictment. See, as to the principle involved, Williams v. State, 51 Ga. 535 (3). This ruling is not contrary to the decisions in Dukes v. State, 94 Ga. 393 21 S. E. 54), and Brazil v. State, 117 Ga. 32 (43 S. E. 460); for those cases hold, in effect, merely that in an indictment drawn under section 4447 of the Code of 1882 (section 241 of the Penal Code of 1910) it is not necessary to charge that the defendant had the intent to defraud any particular person. That section reads as follows: “If any person shall falsely and fraud- ' ulently pass, pay, or tender in payment, utter or publish any false, .■forged, counterfeit, or altered note, bill, check, or draft as aforesaid, knowing the same to have been falsely and fraudulently forged, counterfeited, or altered, he shall be punished by imprisonment and labor in the penitentiary for not less than two years nor longer than ten years.” It will be seen that under the language of that section a violation thereof may occur without any intent on the part of the violator to defraud any particular person. In our opinion the court erred in overruling the defendant’s motion to arrest the judgment.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    11640.
    McClure v. The State.
    Decided July 28, 1920.
    Indictment for assault and battery; from Carroll superior court — Judge Terrell. May 31, 1920.

      Boykin & Boykin, for plaintiff in error.

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

The defendant was indicted for assault with intent to murder, and was convicted of the offense of assault and battery. There is some evidence to support the verdict, which has the approval of the trial judge.

The exception to the court’s failure to charge upon the law of circumstantial evidence is without merit, since the conviction of the defendant was not wholly dependent upon circumstantial evidence, and there was no timely request for such a charge.

The other exception to the charge of the court is without merit. ■ Eor no reason assigned was it error to overrule the motion for a new. trial.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    11641.
    SCHLEY v. THE STATE.
    Decided July 28, 1920.
    A conviction of gaming was authorized by the evidence.
    Accusation of gaming; from city court of Greensboro—Judge Brown. May 18, 1920.
    From the evidence it appears that the defendant was one of several negroes found together “back of Dr. Adams’ in Greensboro,” by deputy-sheriff Copelan, city-marshal Bethea, and W. D. Taylor, who went there because of information as to gambling, Taylor testifying that some information had come to him “about a crowd of white folks down there gambling,” and that he got Copelan to go down there. Copelan testified: “I found the negroes, seven of them, sitting in a ring, with cards in their hands, and I got a half-dollar off the ground. This is all “the money I saw. I watched them about a minute or two before they saw me. I couldn’t say what they were doing,—I couldn’t see exactly, and I left the place where I first got and walked around and got to them before they saw me. They dropped the cards when they saw me.” To the question, “Did this boy (the defendant) have any cards in his hand?” the witness responded, “Yes, sir; I know one of them did.” He further testified: “I first saw the money on the ground, and one of the negroes, John Buff, picked it up, and he then gave it to one of the negroes, and I made him give it to me. This boy was one of the seven sitting round in a ring holding cards in their hands. Mr. Bethea was a good ways off. The game was broken up before Mr. Bethea got there. . . When I first saw them I could not tell what they were doing and could not see more than the tops of their heads. I then walked round and got closer to them. I never saw any of them throw down a card, and could not say from anything I saw that they were gambling, except they had cards in their hands. From what I saw I am satisfied they were playing cards for money.” Being asked why he swore this, the witness answered: “I saw them with the cards in their hands and after they throwed them down.” Being asked if he saw any of the negroes play a card he testified: “I can’t say that I did. I saw them throw all down; and having cards in their hands is sufficient to make me know what they are doing. I saw John Buff pick up a half-dollar which they said was the defendant’s. I never heard a word to indicate that they were gambling. I never saw him pick it up, nor anything bet against the half-dollar. I am satisfied they were playing and betting for money, I will swear that they were from what I saw. The place where these negroes were had some bushes and trees around it and was about 100 yards from the nearest negro house.” The witness produced a full deck of cards, which he testified were the cards picked up by him at the time referred to above. Bethea and Taylor testified as witnesses for the defendant, Bethea stating that he got to where these negroes were ahead of Copelan and waited for Copelan and Taylor to come up, and that he could see them and saw cards on the ground, but did not see them playing cards and did not see any money or anything to indicate that they were playing. Taylor testified, that he was with Copelan and saw no money there and no cards except the cards on the ground, but heard Copelan say that he (Copelan) got half a dollar ; that when he (the witness) and Copelan “walked on down on them ” one of the negroes got up and started to walk off, and that Copelan “pulled a gun on them.” ’John Henderson testified that he was “one of the negroes indicted for gaming,” and that on the occasion referred to in the testimony there was no gaming, and there was no money on the ground; that he had fifty cents in his pocket and he gave it to Mr. Copelan.

      Joseph G. Faust, for plaintiff in error,
    cited: 8 Ga. App. 97; Id. 473; 2 Ga. App. 534; Id. 624; 15 Ga. App. 470; 16 Ga. App. 376.

      Doyle Campbell, solicitor-general, Miles W. Lewis, solicitor, contra,
    cited: 120 Ga. 197; Id. 311; 123 Ga. 502 (1); 117 Ga. 706; 6 Ga. App. 783; 8 -Ga. App. 124; Id. 407; 9 Ga. App. 233; 11 Ga. App. 265; 12 Ga. App. 571; Id. 710 (2); 17 Ga. App. 288-9; 21 Ga. App. 494; 22 Ga. App. 274.
   Bloodworth, J.

The facts in this case are somewhat similar to those in Frost v. State, 120 Ga. 311 (47 S. E. 901). A witness swore in part: “I found the negroes, seven of them, sitting in a ring, with cards in their hands, and I got a half-dollar off the ground.” The motion for a new trial contained only the usual general grounds. There was some slight evidence authorizing the verdict; and the verdict having been approved by the trial judge, under the repeated and uniform rulings of this court and of the Supreme Court a reviewing court is powerless to interfere. "When the verdict is apparently decidedly against the weight of the evidence, the trial judge has a wide discretion as to granting or refusing a new trial; but whenever there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court. Bradham v. State 21 Ga. App. 510 (94 S. E. 618). and cit.

Judgment affirmed.

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


text:
    11642.
    Ward v. The State.
    Decided July 28, 1920.
    Conviction of shooting at another; from Walton superior court— Judge Cobb. May 12, 1920.

      Orrin Roberts, for plaintiff in error.

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

Tlie sole error assigned is the overruling of the motion for a new trial, which contained) only the usual general grounds. The evidence amply authorized the verdict.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11644.
    MANNING v. THE STATE.
    Decided July 28, 1920.
    To warrant a conviction of a felony on the testimony of an accomplice, there must be such corroborating circumstances as will in themselves and independently of that testimony lead to an’ inference of the guilt of the accused. No .evidence in this case outside of that of an alleged accomplice connects the accused with the perpetration of the crime or leads to an inference of his guilt.
    Indictment for larceny of hog; from Brooks superior court — Judge Thomas. May '6, 1920.

      Bennet & Harrell, for plaintiff in error.

      Clifford E. Hay, solicitor-general, contra.
   Bloodworth, J.

Plaintiff in error was convicted of simple larceny (hog-stealing). The chief witness against him was an alleged accomplice. While the question as to whether or not there is sufficient corroboration of the testimony of the accomplice to produce conviction of the defendant’s guilt is peculiarly for the jury, and while it is true that slight evidence corroborating the testimony of the accomplice may be sufficient to authorize a jury to find the defendant guilty, this corroborating evidence must within itself connect the defendant with the crime. It is “an inflexible rule ” that “ in order to warrant a conviction of a felony upon the testimony of an accomplice, the corroborating circumstances must be such as would lead to the inference that 'the defendant is .guilty independently of the testimony of the accomplice.” Butler v. State, 17 Ga. App. 522 (1) (87 S. E. 712). See eases there cited; and see also Nance v. State, 126 Ga. 95 (1) (54 S. E. 712). Eliminating from this ease the testimony of the alleged accomplice, there is left no evidence “to connect the accused with the perpetration of the offense and lead to the inference of his guilt.”

Judgment reversed.

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


text:
    11643.
    Manning v. The State.
    Decided July 28, 1920.
    Indictment for larceny of hog; from Brooks superior court — Judge Thomas. May 6, 1920.

      Bennett & Harrell, for plaintiff in error.

      Clifford E. Hay, solicitor-general, contra:
   Luke, J.

This case is controlled by the decision of this court in Manning v. State, ante, 552.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    11646.
    Scott v. The Staet.
    Decided July 28, 1920.
    Indictment for robbery; from DeKalb superior court—Judge Hutcheson. June 9, 1920.

      A. M. Brand, W. M. Bailey, T. J. Ripley, for plaintiff in error.

      George M. Napier, solicitor-general, contra.
   Broyles, C. J.

The indictment in this case, which charged the offense of robbery, failing to allege that the fraudulent, wrongful, and violent taking of the property was without the consent of the owner, but, on the contrary, alleging that the taking was xoith his consent, set forth no crime under the laws of this State; and the verdict of “ guilty of robbery by force and violence, ” and the judgment based thereon, were void, and the court erred in overruling the defendant’s motion to arrest the judgment. Penal Code (1910), § 148; Long v. State, 12 Ga. 294 (11), 321 (11).

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    11648.
    WHITE et al. v. THE STATE.
    Decided July 28, 1920.
    A verdict supported by any evidence and approved by the trial judge can not be set aside by this court because of conflicting evidence or alleged insufficiency of evidence.
    A conviction of manslaughter was authorized by the evidence.
    Conviction of manslaughter; from Jackson superior court — Judge Cobb. May 3, 1920.
    P. Cooley, for plaintiff in error.

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

As the motion for new trial in this case contains no special grounds, the only question to be determined by this court is whether or not there is any evidence to support the verdict. In passing on the facts in a motion for a new trial, the judge of the trial court has some discretion, but where he has exercised that discretion, this court is powerless to interfere. Our Supreme Court has said; “This court has always recognized that the greatest weight and consideration should be paid to the verdicts of juries, and in many cases has held that while the verdict was different from what the judges would have rendered as men, the court would not interfere. So, too, where the evidence was conflicting, it would not disturb the finding, although it might think that the preponderance was in favor of the losing party. In testing the sufficiency of evidence this court cannot consider the credibility of witnesses, that being a matter exclusively for the jury, who note their manner of testifying and consider the thousand and one things transpiring during a trial, which cannot be photographed or transcribed and transmitted to this court as a part of the record. ” Patton v. State, 117 Ga. 234 (43 S. E. 534). “This court by the constitutional amendment creating it, is limited in jurisdiction to the correction of errors in law alone, and therefore has no power to grant a new trial on the ground that the verdict is strongly contrary to the weight of evidence, if there is any evidence at all to support it.” Collins v. Brown, 21 Ga. App. 420 (1) (94 S. E. 645), and cit. Applying the foregoing rulings to the facts as they appear in the present record, the judgment overruling the motion for new trial must be

Affirmed.

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


text:
    11651.
    Barnes v. The State.
    Decided July 28, 1920.
    Accusation of larceny; from city court of Floyd county — Judge Nunnally. June 2, 1920.
    Jack Barnes was convicted under an accusation of “the offense of a misdemeanor,” alleged to have been committed by unlawfully and fraudulently taking and carrying away $170 in money of B. S. Biggs with intent to steal it. Biggs testified that on a train of the Southern Bailway going south from Dalton the defendant and two other men were betting as to the time in which they could open a certain knife, and one of them asked if he (Biggs) had $10, and he said “Yes,” and, taking it from a roll of money, “let him have it.” What then occurred was stated by the witness as follows: “ I had $170 rolled up together. When I pulled out the $170 Barnes says, ‘I’ll put you twenty more down,’ and I says, ‘No, I don’t gamble, I don’t bet;’ and he says, ‘It ain’t you, it’s me. You will not lose a penny;’ and I was foolish like and laid down the $170. They started to count ten and he could not open the knife, and Barnes grabbed up the whole pile and started back in the sleeper with it. . . I said, ‘Stop with my money.’ The stout man said to me, ‘You can’t go in that sleeper without you have a ticket.’ . . I went on to look for the defendant, but did not see anything of him, and then I went to the conductor and told him about my money. . . Barnes got off and went around the depot at Shannon, the other two got off on the other side of the train and went through the woods; they ran off. The conductor took the defendant and brought him to Borne. . . I do not bet or gamble, did not lose the money to him in some sort of a bet. I just laid it down and he said I would not lose a penny. . . That was at a station north of here, called Shannon. The money was in tens and twenties, mostly twenties. . . The train had blowed for Shannon when I went for the conductor. . . It was something like a minute from the time I lost my money until I found the conductor. . . I didn’t let the defendant have that $170 to bet on that trick.” The conductor testified that when Riggs came to him and made the complaint the train was at Pinson in Floyd county, about a mile and a half from Shannon; that Barnes, when arrested, said in the presence of Riggs, that he had gambled with Riggs and won the money fairly, and would use it to pay his fine. It was testified that when Barnes said this, Riggs told Barnes that he (Riggs) was not gambling, and said “You know you are crooks, and one of you says that ifT would back you, you would win me some money, and I backed you and you took all I had.” The defendant, in his statement at the trial, said that Riggs bet with him and lost the money on the bet. The defendant introduced in evidence a petition of Riggs for an injunction to prevent the chief of police of Rome from turning over to Barnes the money taken from Barnes at the time of the arrest. In the petition it was stated, that Barnes “asked petitioner for the money to make said bet; petitioner let said Jack Barnes have $170 in ten and twenty dollar bills, which said Barnes bet on said trick, and when the money was placed on a seat in said car said Jack Barnes with his said two confederates grabbed said money and ran to the sleeper on said train, the said Barnes carrying the said money in his hands,” etc.
   Broyles, C. J.

The verdict was authorized by the evidence, and none of the special grounds of the motion for a new trial shows reversible error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

The special grounds of the motion for new trial were as follows:

“ Because, as movant contended on the trial and now contends, the venue of the alleged offense was not sufficiently proved.”

The verdict is contrary to law and without evidence to .support it, in that the charge is simple larceny, and the evidence, if showing a larceny at all, shows one from the person, and not simple larceny; for, to constitute a larceny, the evidence must show the money still in the control and possession, and so near the person as to be entirely within his control and not out of his possession; if the money had passed actually out of his possession, so that it might become the subject of any larceny other than from the person, then, under the evidence, such passing out of his possession was with his knowledge and consent and not privately done.

The court erred in the following charge to the jury: “There has been some evidence submitted to you, documentary evidence, for the purpose of impeaching the witness Riggs;” the error being in the use of the words “documentary evidence” alone, while the strongest evidence offered to impeach the witness - was oral testimony.

The court erred in charging: “ It would be immaterial whether the crime, if there was one, occurred in this county or some other county,.if the property was brought into this county by the defendant, and he intended to hold possession of it, this would be the proper venue of the crime.” This was error because not a correct statement of law, and further in direct conflict with the former charge of the court that it was incumbent upon the State to show that the crime occurred in this county.

The court erred in charging: “ If you find there was any plan, scheme, device, or fraud practiced upon Biggs by the defendant for the purpose of getting possession of this money for the purpose of stealing the same, and the defendant did take and carry it away under those circumstances, he would be guilty.” This was error because it made larceny conditioned upon the carrying away of the money, when, as a matter of law, larceny is first a wrongful and fraudulent taking- and then carrying away; the wrong and the fraud and the intent to steal applying to the taking, the covering into possession of the defendant the stolen property, and the carrying away being merely evidentiary of the purpose and intent with which the thing was taken.

The court erred in charging: “If there was such a game on, and had not been completed, and he took the money away before it was determined who was the winner, with intent to steal the same, it would still be larceny.” This was error because not the law, because it eliminated, from those things necessary for the State to prove, a wrongful and fraudulent taking.

M. B. Eubanks, for plaintiff in error.

J. F. Kelly, solicitor, contra.


text:
    11652.
    Ellis v. The State.
    Decided July 28, 1920.
   Luke, J.

The hill of exceptions, not having been tendered within twenty days of the judgment complained of, must be and is

Dismissed.

Broyles, C. J., and Bloodworth, J., concur.

Indictment for sale of liquor; from Bulloch superior court — Judge Lovett. May 5, 1920.

Anderson & Jones, for plaintiff in error.

Walter F. Grey, solicitor-general, contra.


text:
    11662.
    Thomas v. The State.
    Decided July 28, 1920.
    Indictment for manufacture of liquor; from Bibb superior court —Judge Thomas presiding. May 29, 1920.
    1. On the grounds that no offense against the law of the State was charged, that the act of 1917,- under which the defendant was indicted, was in conflict with and was superseded by the “war prohibition act” of October 28, 1919, and the “national prohibition act passed in January, 1920,” and that because of this subsequent legislation the court was without jurisdiction of the case, the defendant demurred to the indictment, which charged her with “the offense of manufacturing whisky, for that the said Lila Thomas, on the 7th day of November, in the year 1919, in the county aforesaid, did . . unlawfully . . distill, manufacture, and make alcoholic liquors, spirituous liquors, whisky, and'rum, contrary to the laws o-f said State,” etc.
   Broyles, C. J.

1. The court did not err in overruling the demurrer to the indictment.

2. The following charge complained of was not error: “ Evidence as to good character of one on trial charged with crime is always relevant and competent to be considered by the jury, and, in a case where guilt is not plainly established, evidence as to good character may of itself be sufficient to generate in the minds of the jury a reasonable doubt as to the guilt of the defendant. The rule is that evidence as to good character is to be taken and considered by the Jury in connection with the other evidence in the case in its entirety, and if, after considering the evidence as a whole, the jury is satisfied of the defendant’s guilt, then and in that event it is [for] the jury to convict, notwithstanding such evidence as to such good character.” Brazil v. State, 117 Ga. 37, 38, (43 S. E. 460); Hill v. State, 18 Ga. App. 259 (89 S. E. 351) and cit.

3. The evidence upon which the State relied to convict the defendant was purely circumstantial, and it was not sufficient to exclude every reasonable hypothesis save that of her guilt. The verdict, therefore, was unsupported by the evidence, and the court erred in overruling the motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

2. The court’s instructions as to the effect of evidence of good character, which are set out in the decision, are complained of on the grounds that they restrict the consideration of such evidence to cases in which guilt,is not plainly established, and allow the jury to consider it only in connection with other evidence. It is contended that evidence of good character is in itself a defense and may alone work an acquittal.

3i According to the evidence, Lila Thomas, the defendant, was at the house of Mary Ann Crawford, which was the next house to the one in which the defendant lived, when detectives came to the house of Mary Ann Crawford and there found whisky and rum, and a lard can connected with a worm, etc. One of the detectives testified that, in the afternoon he went to the house with Mr. Hardison, another detective, and found that the doors were fastened and the window-shades were down; that repeated knocking on the door brought no response, and the witness moved one of the shades and saw two boys — Eobert Pennington and Hilton Connor — tipping across the floor, but did not then see,the defendant; that they were finally admitted into the house and found the defendant in the middle room, a cook-room, and in a closet of that room, they found a large lard can and a worm; the can was hot, and “it had a trough; the worm connected with the pipe; it was stuck in that hole, and some putty or dough, or something, around the worm;” “there was meal, and looked like syrup and stuff had soured or fermented in the can; . . it smelled like beer; it was hot and there was steam coming from it; it was smoking; ft smelled like stump' rum;” about two quarts and a pint of stump rum were found there; one of the boys was under the bed when the witness got in the house; the defendant said there was no whisky there; whisky was found in a wardrobe. Mary Ann Crawford testified that the defendant had been in the habit of coming to the house to get meal to cook for her, that Hilton Connor, who was in the house when the detectives came, boarded there and that she knew nothing of the making of liquor there. The defendant, in her statement at the trial, said that she went to the house to get some meal to cook for Mary Crawford’s supper, and that when she went in to pull the can out and get the meal from it, some one knocked at the door, and the man who charged her with making whisky came into the house.

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

Charles H. Garrett, solicitor-general, contra.


text:
    11663.
    Tate v. The State.
    Decided July 28, 1920.
    Indictment for having distilling apparatus on premises; from Lincoln superior court — Judge "Walker. May 11, 1920.

      Colley & Colley, for plaintiff in error.

      R. C. Norman, solicitor-general, contra.
   Luke, J.

This ease is here upon the sole assignment of error that the verdict was without evidence to support it. The direct and circumstantial evidence was sufficient to authorize the verdict of guilty; the trial judge approved the verdict. It was not error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    11164.
    VARNUM v. THE STATE.
    Decided July 28, 1920.
    In sending for the jury and in the inquiries addressed to them, after they had retired to consider the case, and in the instructions given to them when the foreman stated that they were divided on a question of fact, no error requiring a new trial was committed by the trial -judge.
    The verdict was authorized by the evidence.
    Indictment for manufacture of intoxicating liquor; from Pike superior court—Judge Searcy. May 29, 1920.
    In the ground of the motion for a new trial as to the action of the court in sending for the jury and addressing inquiries to them, and giving the instructions set out, it is contended that “said proceeding” was and must have been construed by the jury as in the nature of a reprimand to them for failing to make a verdict, and as in the nature of a command to return a verdict, and was coercive in its effect and destructive of the defendant’s right to an impartial adjudication of his case by a jury free from outside influence or coercion.

      W. H. Conner, for plaintiff in error,
    cited: 9 Ga. App. 162.

      E. M. Owen, solicitor-general, contra,
    cited: 145 Ga. 614; 128 Ga. 241; 117 Ga. 710; 90 Ga. 500 (9); 88 Ga. 54,
   Bloodworth, J.

1. The verdict in this case has the approval of the trial judge, and there is ample evidence to support it.

2. Error is alleged because, after the jury had been charged and “for some time” had been considering the case, the judge, on his own motion, had the jury brought back into the courtroom, when the following occurred. The court said: “ Gentlemen of the jury, I have sent for you to inquire if you have made a verdict.” Foreman: “No, sir.” The court: “I wish to inquire of the jury how they are divided; not as to what side they are on, but how divided as to numbers.” Foreman: “Ten against two.” The court: “Are you divided on questions of fact, or of law ?” Foreman: “ It is on a question of fact.” The court: “The object of legal investigations, gentlemen, is the discovery of truth and the reaching of a verdict. Mistrials are to be deprecated, and to be avoided when possible. It is expensive to a party charged with a crime to have to come into court a number of times to stand trial for the same offense, and it is expensive to the public; but while this is true, it is not intended that jurors should surrender conscientious conviction, if they have a conscientious conviction, — that is one that satisfies the conscience of the juror. A ‘conscientious conviction’ does not necessarily and alone mean to have a fixed opinion; because there can be a fixed opinion without it being from conscientious conviction. The fixed opinion may be the result of an obstinate will and determination to hold' out because one takes a position and is unwilling to surrender it. A conscientious conviction means a conviction that grows out of the evidence and that appeals to reason and judgment. Such a conviction as this ought not to be surrendered. Jurors have no right to take -a position and merely remain in that position simply because they take it without regard to the evidence and without regard to his conscience and his oath. As to what has been testified in this case is a matter wholly for you; the court has nothing to do with it; but I think the court may in this case, as in any other case, instruct the jury along these lines in order that a full discussion of the evidence may be entered into, and the jury may give to each other their opinions of the evidence, and, after discussing the facts as they have been developed, they might then reach, if possible, or at least make an honest effort to reach, a verdict in the ease. If they are unable to do so, a mistrial results necessarily. You should reach a verdict which satisfies both the judgment and the conscience of each juror, and then it is your duty to return that verdict, whatever it may be. Betire and reenter upon the discussion of the evidence in this case, and apply the rules of law heretofore given you in charge to the same, and see if you are able to reach a verdict.” Under the facts of this case this was not error requiring the grant of a new trial. See Golatt v. State, 130 Ga. 18 (3) (60 S. E. 107); Chandler v. State, 124 Ga. 821 (3), 822 (53 S. E. 91); Dalton Fruit & Produce Co. v. Puryear, 22 Ga. App. 489, 490 (96 S. E. 344).

Judgment affirmed.

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


text:
    11667.
    Young v. The State.
    Decided July 28, 1920.
    Indictment for embezzlement; from Wilkes superior court — Judge Walker. June 1, 1920.
    Young was convicted under an indictment which charged him with embezzlement of money of the County of Wilkes, to the amount of $642.67, coming into his hands as clerk of the board of commissioners of roads and revenues of the county. From the evidence it appears that when about to resign his place as clerk of the board he requested the chairman of the board to sign a check payable 'to his (Young’s) order, and blank as to amount, on which were written the words, “Final settlement with the county, ” and which was drawn on a bank that had funds of the coupty on deposit in the name of the chairman of the board; that -the chairman signed the check as requested, with the understanding that the amount due Young was to be written into it by Young, who said that it would take him “some little time to figure it out;” that Young wrote into it the amount of $642.67, indorsed the check, collected the money on it, and used the money for himself; and that when the check was drawn and when it was paid the county owed him nothing.
   Broyles, C. J.

1. “Where facts can be ascertained, only by an examination of a large number of details on books of account, it is permissible for an expert accountant, who has made an examination of the books and figures, to testify as a witness and to give a summarized statement of what the books show, provided the books themselves are made accessible to the court and to the parties. ” Spence v. State, 20 Ga. App. 61 (11) (92 S. E. 555), and cit. In the instant case the record contains the following note of the trial judge: “The above and foregoing motion for a new trial read and considered, and the recitals of fact therein are approved as true, subject to this statement that on the making-of the objections set out in grounds 1 and 2 of the amended motion the trial was suspended and the entire series of books and records were brought into court and then made accessible to the court and parties. ” Under this note of the judge and the other facts of the case, the 1st and 2d special grounds of the motion for a new trial are without merit.

2. In the light of the entire charge of the court and of the facts of the case, the court did not err in refusing the several requests to charge, as complained of.

3. The verdict was authorized by the evidence and has the approval of the trial judge; no error of law is shown, and the judgment of the court below is

Affirmed.

Luke and Bloodworth, JJ., concur.

Paragraph 1 of the decision relates to testimony of S. H. Everett, who testified that he was “an auditor, a practising accountant,” and had audited the books of the County of Wilkes and of the bank referred to above, and had examined and checked up the accounts of Young as clerk of the board of county commissioners. He testified that from an examination of these books, “this check for $642.76 never did go to the credit of the county.” The witness then added the following testimony, which was admitted over the objection of the defendant: “Let me modify that just a little. We did not have to take all of the books. Some of the records were necessary to make a reconcilement. Mr. Young kept all the records; they are in his handwriting. With reference to the clerk’s salary, I found that he was paid every month. I found from an examination that in place of what we call ‘petty cash’ he apparently advanced some money himself, some little cash items. For .these small cash items I find that he received a check regularly every month. If he failed at any time to reimburse himself for these little items, I failed to find it. I am making my statement from the summary itself. He was short with the county $3,548.63 exclusive of this check here.” The court admitted also over objection the following testimony of this witness: “Mr. Young kept those books. I have found from them what amount he collected, and I found the amount that went to the credit of the county. He did not account for afl the money that came into his hands. He failed to account for $4,191.30, including the check for $642.67. Those are the correct figures as shown by his books. ” The grounds of objection to these parts of the testimony, as’ set out in the 1st and 2d special grounds of the motion for a new trial, were: that the records required by law to be kept in the office of the clerk of the commissioners of roads and revenues were public documents, and their contents could be proved only by certified copies; that such of the records referred to by the witness as were not required by law to be kept in that office were private writings, and were themselves the highest and best evidence of their contents; that the testimony offered was a mere conclusion of the witness, and was not as to a matter of science or skill about which the witness could testify as an expert; and that no foundation had been laid for his testimony by offering in evidence the books themselves.

Colley & Colley, H. E. Combs, W. A. Slaton, for plaintiff in error.

R. C. Norman, solicitor-general, William Wynne, contra.


text:
    10637.
    Waters v. The State.
    Decided July 29, 1920.
    Conviction of involuntary manslaughter in the commission of an unlawful act; from Clarke superior court'—1 Judge -Cobb. May 22, 1919.

      Thomas & Thomas, H. S. West, T. J. Shackelford, Shackelford & Meador, for plaintiff in error.

      W. O. Dean, solicitor-general, S. C. Upson, T. W. Rucker, contra.
   Broyles, C. J.

1. A motion in arrest of judgment is a separate cause from the main case and must be predicated upon a defect not amendable which appears on the face of the record or pleadings. Where one has been convicted and sentenced in a criminal case he can maintain a bill of exceptions to the judgment of the court overruling a motion to arrest the judgment, notwithstanding the fact that there is still pending and undisposed of in the lower court a motion for a new trial. Hay v. Collins, 118 Ga. 243 (44 S. E. 1002) ; Earnest v. State, 148 Ga. 632 (97 S. E. 672). Under this ruling the motion to dismiss the writ of error is denied.

2. The question as to whether the judge erred in overruling the defendant’s motion to arrest the judgment is controlled by the decision this day rendered in Summerlin v. State, post, 565.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    10632.
    SUMMERLIN v. THE STATE.
    Decided July 29, 1920.
    1. The motion to dismiss the writ of error is denied. See Waters v. State ante, 564 (1).
    2. The facts alleged in the second count in the special presentment constitute the offense of involuntary manslaughter in the commission of an unlawful act.
    3. -The verdict, which reads as follows: “We, the jury, find the defendant . . guilty of involuntary manslaughter in the commission of an unlawful act as under the 2d count, ” is on its face .legal and valid.
    Conviction of involuntary manslaughter; from Clarke superior court — Judge Cobb. May 22, 1919.
    Involuntary manslaughter in the commission of an unlawful act, by the unintentional killing of a pregnant woman by the unlawful use of instruments with the intent to produce a miscarriage and abortion, is alleged in the second count of the indictment. The language of this count is set out in the decision. By motion to arrest the judgment it was contended that the conviction under this count was illegal because the facts alleged do not constitute the crime of involuntary manslaughter in the commission of an unlawful act, but, if they constitute any crime, it is the crime defined in section 8l of the Penal Code, which provides that “Any person who shall administer to any woman, pregnant with a child, any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose, shall, in case the death of child or mother be thereby produced, be guilty of an assault with intent to murder.”

      William M. Howard, Green & Michael, Wolver M. Smith, John B. Gamble, for plaintiff in error.

      W. O. Dean, solicitor-general, S. C. Upson, T. W. Rucker. contra.
   Bloodworth, J.

The accused was indicted' with another, th^ indictment containing three counts; first, murder, second, involuntary manslaughter in the commission of an unlawful act; third, assault with intent to murder. Upon his separate trial the following verdict was rendered: “We, the jury, find the defendant M. T. Summerlin guilty of the offense of involuntary manslaughter in the commission of an unlawful act as under the 2d count.” Upon this verdict a judgment was rendered, and a motion was made to set it aside “because said verdict and judgment was illegal and invalid, for the reason that the facts alleged in said second count of said presentment as constituting the crime of involuntary manslaughter in the commission of an unlawful act do not and can not in law constitute said crime, but if said alleged facts constitute any crime at all, it is the crime punished as assault with intent to murder and defined by section 81 of the Penal Code of Georgia.” This motion was overruled and a bill of exceptions to this ruling was taken to this court; whereupon this court certified to the Supreme Court the following questions and requested instruction in reference thereto: “ The special presentment contained three counts. The first count charged murder. The second count (the formal parts omitted) charged the defendants ‘with the offense of involuntary manslaughter in the commission of an unlawful act; for that the said W. G. Waters 'and M. T. Summerlin, in the county and State aforesaid, on the 20th day of February in the year of our Lord nineteen hundred and nineteen, with force and arms, and without any intention to do so, but in the commission of an unlawful act, did unlawfully, feloniously, and wilfully kill Yiola Parr, the said Yiola Parr being at the time a pregnant woman, by then 'and there using and employing an instrument and instruments to the grand jurors unknown, which said instrument and instruments were by the said W. G. Waters 'and M. T. Summerlin used and employed for the purpose and with the intent thereby to produce the miscarriage and abortion of the said Yiola Parr, and by the use and employment of said instrument and instruments on the person of the said Yiola Parr did thereby cause and produce the miscarriage and abortion of said Yiola Parr and did thereby kill the said Yiola Parr, the use and employment of said instrument and instruments not being then and there necessary to preserve the life of said Yiola Parr, and not having been advised by two physicians to be necessary for that purpose; said W. G. Waters and M. T. Summerlin, in the manner and form aforesaid, the said Yiola Parr did unlawfully, feloniously, and wilfully kill, contrary to the laws of said State, the good order, peace and dignity thereof.’ The third count (the formal parts omitted) charged the defendants ‘with the offense of assault with intent to murder; for that the said W. G. Waters and M. T. Summerlin, in the county and State aforesaid, on the 20th day of February in the year of our Lord nineteen hundred and nineteen, did then and there, with force and arms and with a certain instrument 'and instruments to the grand jurors unknown, unlawfully and with malice aforethought in and upon Yiola Parr, a woman pregnant with a child, and with the intent thereby to destroy such child and by the use of such instrument and instruments in and on the person of Yiola Parr the death of the said Yiola Parr, the mother, was thereby produced, the use and employment of said instrument and instruments not being then and there necessary to preserve the life of such mother and not having been then and there advised by two physicians to be necessary for said purpose; and the grand jurors aforesaid, upon their oaths aforesaid, do say that the said W. G. Waters and M. T. Summerlin, in the manner and form aforesaid, unlawfully, feloniously, and with malice aforethought did commit the crime of assault with intent to murder, contrary to the laws of said State, the good order, peace, and dignity thereof/ The jury returned the following verdict: ‘1. We, the jury, find the defendant . . . not guilty of the offense of murder, as under the first count. 2. We, the jury, find the defendant. . . guilty of involuntary manslaughter in the commission of an unlawful act, as under the second count. 3. We, the jury, find the defendant . . . not guilty of assault with intent to murder, as under the third count. ’ Did the facts alleged in the second count of the presentment legally constitute the offense of involuntary manslaughter in the commission of an unlawful 'act; and was the verdict, upon the face of the presentment, a legal and valid one?”

The headnotes to the opinion rendered by the Supreme Court appear above (headnotes 2 and 3),.and need no elaboration. The full opinion will be found in 150 Ga. 173 (103 S. E. 46). Under the rulings of the Supreme Court the trial judge did not err in overruling the motion in arrest of judgment.

Judgment affirmed.

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