author: Smith, J. Stephens, J.,

text:
    10738.
    GEORGIA RAILWAY & POWER COMPANY v. BEALE.
    Decided May 21, 1920.
    A married daughter, living- with and supported by her husband, cannot sue for the homicide of her father, though she be the only minor child and the father's wife died before the homicide.
    (Certiorari was granted by the Supreme Court.)
    Action for damages; from Fulton superior court — Judge Pendleton. June 16, 1919.

      Colquitt & Conyers, for plaintiff in error.

      Little, Powell, Smith & Goldstein, contra.
   Smith, J.

Mrs. Marjorie A. Beale brought suit, through her husband, R. H. Beale, as next friend, to recover damages for the homicide of her father, claiming that he had been killed on account of the negligence of the Georgia Railway & Power Company. The deceased was a widower at the time of his death. The petitioner, at the time of her father’s death, was married, and, nothing appearing to the contrarjq it must be presumed that she was supported by her husband. She was the only minor child of the deceased.

This case presents but a single question, and that is, has the plaintiff, under the facts stated, a right of action under the provisions of the Civil Code (1910), § 4424, for the negligent homicide of her father? The code-section referred to provides as follows: “A widow, or, if no widow, a child or children, may recover for the homicide of the husband or parent; and if suit be brought by the widow or children, and the former or one of the latter dies pending the action, the same shall survive in the first case to tbe children, and in the latter to the surviving child or children. The husband may recover for the homicide of his wife, and if she leaves child or children surviving, said husband and children shall sue jointly, and not separately, with the right to recover the full value of the life of the deceased, as shown by the evidence, and with • the right of survivorship as to said suit if • either die pending the action. A mother, or, if no mother, a father, may recover for the homicide of a child minor or sui juris, upon whom she or he is dependent, or who contributes to his or her support, unless said child leave a wife, husband, or child. Said mother or father shall be entitled to recover the full value of the life of said child.” Is the word “ child ” here used in its broad generic sense, and limited only to the concept of parentage and offspring, or is it employed in its narrower and more restricted sense, as referring to the members of a family who, as such, are dependent children? Both the Supreme Court and this court have by previous decision already passed upon and interpreted the meaning and intent of the statute in this respect, and have repeatedly held that the word “child,” as here used, should be taken in its limited sense. As pointed out by this court in Denham v. Texas Co., 19 Ga. App. 662, 665 (91 S. E. 1070), it was intimated by the Supreme Court as far back as the case of Atlanta & West Point Railroad Co. v. Venable, 65 Ga. 55, “that the right of the child to recover for the death of its mother exists because the death of the father casts the burden of supporting the child on the mother, and the child thus becomes interested in the' life of the mother.” . In Mott v. Central Railroad, 70 Ga. 680 (48 Am. Bep. 595), it was ruled that the statute as it then existed did not give a right of action to an adult child, and in the opinion the court used the following language: “We cannot entertain a serious doubt that the legislature meant to use the word ‘ children’ in a limited and specific and not ini a generic or general sense. . . It is evident, from the decisions upon previous legislation, that they were such only as were entitled to a support from the. deceased; such as were dependent members of the family at the time of the homicide of the parent.” This language • was quoted with approval by the Supreme Court in Coleman v. Hyer, 113 Ga. 420, 422 (38 S. E. 962), in which case the court said that the acj; aHiendipg this section, subsequent to the ruling in the Mott' case, did not have the effect oí enlarging the meaning of the word “children.” See also Western & Atlantic R. Co. v. Harris, 128 Ga. 394 (1) (57 S. E. 722). In the Denham case Judge George, speaking for the court, said: “It must be remembered that the right of civil action for a negligent death is founded upon the theory of compensation. The beneficial interest in the life of the deceased is the basis upon which the right of recovery exists.” In the Denham case minor children living with their father sought to maintain an independent action for the homicide of their mother, and in the course of the opinion this language was used: “It is said that the father may abandon his family and that his whereabouts may be unknown to his children. We do not think that such injustice will How from the construction we have here placed upon section 4424 of the code. If the father is separated from the mother, and if the burden of supporting the children is cast upon the mother, she in legal effect is the head of the family, and for her wrongful death under such circumstances the children may have the right to sue. If the father be divorced, and if the mother be given the custody of the children, the provision of our law which compels her to support the children during their minority might confer -upon them such a beneficial interest in her life as would enable them to maintain a suit in their own names for the death of the mother, but we do not so decide. If injustice to the children result in exceptional cases by reason of the construction here given to section 4424, that matter should be brought to the attention of the legislature.”

Thus it will be seen that the decisions are uniform in holding that dependency is the basis of the right of a child to maintain such an action. Upon this theory and interpretation it is manifest that 'a married woman, not dependent upon her father, cannot maintain an action for his homicide, since by marriage the wife’s legal civil existence is merged in the husband (Civil Code (1910), § 2992; Central of Georgia Ry. Co. v. Cheney, 20 Ga. App. 393, 93 S. E. 42), and upon the marriage of the minor daughter the duty to support is transferred to the husband. Civil Code (1910), § 2996; Brunswick Light Co. v. Gale, 91 Ga. 813 (18 S. E. 11); Georgia Railroad &c. Co. v. Tice, 124 Ga. 460 (5) (52 S. E. 916, 4 Am. Cas. 200) ; Wrightsville S Tennille R. Co. v. Vaughn, 9 Ga. App. 371 (71 S. E 691); Civil Code (1910), § 3021 (5). See also Goss v. Harris, 117 Ga. 345 (43 S. E. 734).

Under our view of the law as it has been interpreted, we are of the opinion that the petition failed to set forth a cause of action, since it appears therefrom that the plaintiff had no beneficial interest in the life of the one alleged to have been killed, and that the court erred in failing to sustain the defendant’s demurrer.

Judgment reversed.

Jenkins, P. J., concurs. Stephens, J., dissents.

Stephens, J.,

dissenting. While conceding that the object of the statute is to provide for the dependents of a deceased parent, yet the statute, instead of providing that dependents should recover, and thus leaving the question as to dependency open to controversy in every case, seeks to obviate this confusion, and specifically designates the beneficiaries by name, without any qualification indicating dependency. Among others, the statute provides that a “child” may recover for the homicide of its parent. The Supreme Court, having in mind this object of the statute, has construed the word “child” to mean a child who is an infant, i. e., a child under 21 years of age, and not an adult. Mott v. Central Railroad, Coleman v. Hyer, Western & Atlantic R. Co. v. Harris, supra. The statute therefore is to be construed as if the word “ child ” read “ infant.” Any construction, therefore, of the word “child” (meaning infant) which limits its meaning to an infant who is not married gives to the word “child” a construction to which it is not susceptible under any of its recognized definitions. Such a construction adds to and amends the statute, and does not construe it. It amounts to judicial legislation. The statute having named and fixed a “ child ” (meaning infant) as 'a beneficiary, no judicial inquiry into the child’s dependency, either as a matter of law or fact, is permissible. The duty of the court is only to construe the words of the statute and expound the law as it is written, and not to add to the definition of a word or amend the statute. The statute in terms names a “ child ” (meaning infant) as a beneficiary, and therefore precludes any inquiry into the “child’s” (meaning infant’s) dependency. The beneficiary therefore may in a particular instance fall without the object of the statute, but yet fall within its terms.

Besides, financial dependency of a child, or dependency for support upon the parent, does not apply in every case under the statute. “The husband may recover for the homicide of his wife, and if she leaves child or children surviving, said husband and children shall sue jointly. . .” The father of such a child being in life, there certainly is no presumption that the child, who under the statute is given the right to sue for the homicide of the mother, is dependent upon her for support. Such child may be dependent upon the mother in many other respects; and, although independent of the mother for- financial support, the child may nevertheless, under certain conditions, recover for the mother’s homicide. It can therefore be doing no violence to the statute to hold that a child who is married, and thus also financially independent of the father for support, may recover for his homicide. The above-quoted provision of the statute giving a child, together with the father, the right to recover for. the homicide of the mother, was added in 1887 (Ga. L. 1887, p. 43), after the rendition of the decision in the Mobb case, supra, in 1883, which construed the word “child” as meaning an infant and not an adult. The beneficiaries of the statute as it now reads, being not in all instances children dependent for support and maintenance, what was said in the Mobb case should be confined to the particular question there presented and in the cases following it, to wit, whether or not an aduli child had a right to recover. The statute as it read when construed in the Mobb case should now be construed in the light of the amendments thereto, and as it now reads as codified in the Civil Code (1910), § 4434.

It follows therefore that no change in the status of such “child” (meaning infant), by marriage or otherwise, even though the child’s dependency upon the parent for support is destroyed should operate to deprive such “child” (meaning infant) of the right secured by the statute to recover for the homicide of the parent. Marriage, while destroying the “child’s” (meaning infant’s) status of financial dependency upon the parent for support, does not destroy the child’s dependency upon the parent for other things which a parent can give, and does not destroy the “child’s” status as an infant. An infant who is married in an infant still. 3 Bishop on Married Women, sec. 511 et seq.; Nicholson v. Wilborn 13 Ga. 467.

I am therefore of the opinion that the marriage of a “child” (moaning infant) does not operate to deprive such “child” of the right to recover for the homicide of the parent.


source: Caselaw Access Project

license: Public Domain

text:
    11045.
    LEBBY v. ATLANTA REALTY CORPORATION.
    Decided May 21, 1920.
    No cause of action -was stated by the allegations as to the injury to the plaintiff from slipping and falling on the floor of a hallway, upon which he was walking when going from the office of a tenant in the defendant’s office building, and which, while he was in the tenant’s office, was covered with water preparatory to mopping it, and thus was rendered slick and dangerous to walk upon; it not appearing that there was any culpable negligence on the part of the defendant, or that the alleged danger was not obvious and could not by the exercise of ordinary care have been discovered by the plaintiff. Stephens, J., dissents.
    Action for damages; from city court of Atlanta — Judge Bell. October 4, 1919.

      Westmoreland & Smith, for plaintiff.

      W. E. Roberts, D. W. Blair, for defendant.
   Smith, J.

R. G. Lebby brought suit against the Atlanta Realty Corporation, alleging, substantially, that the defendant was a corporation of the State of Georgia, with its principal office in the city of Atlanta, and owned, operated, and maintained in that city an office building, known as the Hurt building, the space in which was leased to numerous individuals for hire, the offices being maintained by them for the transaction of their business; that on March 28, 1918, between eleven and twelve o’clock in the day time the plaintiff was in said building, on the seventh floor, for the purpose of consulting a doctor whose office was on that floor, said doctor being a tenant of the defendant; that the plaintiff remained in the doctor’s office about thirty minutes, and that when he came out of the doctor’s office and started down the hall to the elevator he had taken only a few steps when his feet slipped suddenly from under him, in a manner set out in the petition. The plaintiff further alleged that the tile flooring upon the seventh floor of the building was very smooth and very slick, and that while he was in the doctor’s office the said floor was covered with water, preparatory to mopping the same, and the water was allowed to stand, on the floor, causing it to be unsafe and dangerous for any one to walk upon it. He further alleged that he knew nothing of the unsafe and dangerous condition of the said floor, and could not by the exercise of ordinary care have known thereof. He also alleged that he was injured by the negligence of the defendant in the following particulars: (a) that the defendant failed to provide a safe place for persons lawfully in said building to walk on, as it was its duty to do; (&) that the defendant negligently placed or allowed to be placed on the seventh floor of said building water in sufficient quantity to make the sam.e dangerous and unsafe for walking on, when it knew or should have known that it would render said floor unsafe and dangerous for persons using the same; (c) that it allowed water to remain on said seventh floor of said building, rendering it unsafe and dangerous, without maintaining a watchman or some person to warn persons of the dangerous and unsafe condition of the floor, when it knew or should have known of that condition; (d) that it ordered or allowed said floor to be sprinkled or wet when it knew or should have known that it would render the floor unsafe and dangerous to so sprinkle or wet it while it was in constant use by persons authorized to be in the building. The petition next sets out the particulars of the plaintiffs injuries, and prays for damages.

The petition fails to set out a legal cause of action against the defendant, in that it fails to allege any culpable negligence on the part of the defendant, and fails to allege any facts showing that the danger, if any, was not obvious and could not by the exercise of ordinary care have been seen and discovered by the plaintiff. The court therefore did not err in sustaining the general demurrer and dismissing the petition. See Jones v. Candler, 22 Oa. App. 217 (95 S. E. 733).

Judgment affirmed.

Jenkins, P. J., concurs. Stephens, J., dissents.

Stephens, J.,

dissenting. Where one owns and operates a building wherein offices are leased to tenants, and where the public by express or implied invitation enter for lawful purposes, he is bound to exercise ordinary care in keeping the hallways and approaches to the offices therein safe. Civil Code (1910), § 4420. Where, in the hallway of such a building, the floor, which is constructed of very smooth and slick tile, is allowed to become covered with water and thus rendered slippery and dangerous to walk upon, such condition of the floor, if permitted in the middle of the day and during business hours and while the building is frequented by persons entering under an implied invitation, may amount to a failure to keep the hallway safe, and thus constitute negligence on the part of the owner or person operating the building. Any one passing along the hallway of such building who is, without any fault on his part, injured by reason of slipping and falling, caused by such negligent condition of the floor, may recover damages for such injuries. He has a right to assume that the floor is safe, and is chargeable with only ordinary care and diligence in observing its condition. Where he has no knowledge of the unsafe condition of the floor, and there is nothing to indicate it other than the bare existence of the water on the floor, and such person, only a half hour before the injury and before the placing of the water upon the floor, has passed over it in safety, it is a question for the jury whether or not under such circumstances such person by the exercise of ordinary care could have discovered the dangerous and unsafe condition of the floor, and thereby prevented the injury. The condition of a tile floor covered with water without anything calling attention thereto is not necessarily patent. It is likely not to attract attention, and may not be observed by one exercising ordinary care.

It cannot be said that the only inference to be drawn from the facts alleged in the petition is that the plaintiff, under the circumstances, could by the exercise of ordinary care have'discovered the dangerous condition of the floor and prevented his injury. While the facts alleged may strongly demand this -inference, they may nevertheless, on the contrary, authorize the inference that the plaintiff could not by the exercise of ordinary care have discovered such dangerous condition. In Frost v. McCarthy, 200 Mass. (1910), 445, it was held that whexe a woman went into a store in which she often transacted business and as she entered noticed on the steps mortar or plaster around which she had to pick her way, and after remaining in the store a few minutes she came out and slipped upon the substance upon the steps and was injured, and where there was evidence to warrant the finding that the condition of the steps had existed for such a period of time that the proprietor of the store ought to have known of it, the questions of negligence on the part of the person injured and the proprietor were for the jury. The court, in that case, speaking through Mr. Justice Bugg, now its eminent Chief Justice, says: “The question as to the plaintiffs due care, although close, was properly submitted to the jury. Albeit she observed the presence upon the steps of the powdered and lumped mortar before she entered, and had to pick her way along and feared that she might slip, the door was open leading into the store and business was in fact being conducted there as usual. An invitation on the part of the defendant was thus held out to customers to enter his store, which to some extent carried an implication of safety, if the invitation was accepted. The principle is too well settled to require a citation of authorities to support it, that mere knowledge of the danger of doing a certain act without a full appreciation of the risk involved is not sufficient to preclude a plaintiff from recovery, even though there may be added to the knowledge of danger a comprehension of some risk. It is still in most cases a question of fact whether, taking into account all the circumstances, including the knowledge and appreciation as well as every other material condition, the plaintiff is guilty of such negligence as to preclude recovery. Such knowledge and appreciation no doubt oftentimes, perhaps generally, constitute weighty evidence of negligence. They do not invariably rise to such clear and conclusive manifestation of want of ordinary prudence as to warrant a court in ruling as a matter of law that there is want of due care. Facts are often present which require the court to say as a matter of law that no person of ordinary prudence would do the act which accompanied the injury. . . The established standard is whether, taking everything into account, the act is one which the common sense of mankind pronounces want of such prudence as the ordinarily careful, person would use in a like situation. It is hard to conceive of anything more universally known to be plainly liable to cause a person to slip than ice, yet it has not infrequently been held that knowledge of the presence of ice on the part of one attempting to pass over it, sometimes even when there is another way open, is not such evidence of negligence as to warrant the court in ruling as a matter of law that the person injured by the attempt to get over the slippery place is precluded from recovery by negligence," citing authorities. See also Anjou v. Boston Elevated Ry. Co., 208 Mass. (1911) 273; 31 Am. & Eng. Anno. Cases, p. 133, note; L. R. A. 1915F, 572, note.

I am therefore of the opinion that the petition set out a cause of action and was improperly dismissed on general demurrer.


author: Luke, J.

text:
    10471.
    Harris v. Adams, executor.
    Decided June 15, 1920.
    Complaint; from Washington superior court — Judge Hardeman. March 14, 1919.

      Jordan & Harris, for plaintiff.

      Evans & Evans, for defendant.
   Luke, J.

1. “ Where an instrument purporting to be a will is duly probated in common form in pursuance of the Civil Code, § 3855, and letters testamentary are duly issued to the executor nominated in the will, and recorded as provided by the statute, the executor may proceed with the regular administration of the estate. Maund v. Maund, 94 Ca. 479 (20 S. E. 360). Where an executor has qualified after the probate of the will in common form in the manner indicated above, and, after more than twelve months have expired since the qualification of the executor, a creditor of the estate institutes a suit against the executor to recover a debt created by the testator, the institution of the suit is not premature.

“ (a) The facts that before the probate of the will in common form an application had been presented to the court of ordinary to probate the paper in solemn form, and a caveat had been filed to such probate, and a judgment rendered by the court of ordinary setting up the will, and an appeal entered from the judgment of the court of ordinary to the superior court, and the suit by the creditor was instituted within less than twelve months after the judgment probating the will in solemn form, would not affect the case. If, pending the application to probate the will in solemn form, the ordinary had merely appointed as temporary administrator the person nominated in the will as executor, as provided in the Civil Code, § 3943, par. 10, a different question would arise.” 150 Ga. 204 (103 S. E. 229).

2. The foregoing is the answer of the Supreme Court to a question certified by this court, and under the^ruling there made the trial court erred in sustaining the defendant’s plea in abatement, which set up that the suit was prematurely brought. •

Judgment reversed.

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


author: Per Curiam.

text:
    10981.
    Tenenbaum v. Knight.
    Decided June 15, 1920.
    Action on contract; from city court of Reidsville—-Judge Cowart. September 1, 1919.

      E. C. Elmore, for plaintiff in error.

      J. T. Grice, contra.
   Per Curiam.

“ Under the provisions of the act approved August 17, 1915 (Acts 1915, p. 117), entitled ‘An act to amend an aet establishing the city court of Reidsville/ relative to the selection of jurors, the number of jurors, etc., the city court of Reidsville is not a court from which a writ of error will lie directly to the Supreme Court or to the Court of Appeals. Ash v. People’s Bank of Oliver, 149 Ga. 713 (101 S. E. 912).” Kennedy v. Kicklighter, 150 Ga. 276 (103 S. E. 153). Consequently the writ of error in this case must be

Dismissed.

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


author: Bloodworth, J.

text:
    11114.
    GREEN v. PATTERSON.
    Decided June 15, 1920.
    “A petition for certiorari which contains no assignment of error with which the court can deal is an absolute nullity. It is so much waste paper, and the court has no authority to decide any question which is sought to be raised therein, and can only strike the petition from its files.”
    Certiorari; from Pulton superior court—Judge Pendleton. October 30, 1919.
    On June 5, 1918, in a case tried before Judge L. Z. Rosser, one of the judges of the municipal court of Atlanta, judgment was rendered for the plaintiff. An oral motion for a new trial was overruled, and a petition for certiorari was presented, in which it was alleged that “the court did, on June 5, 1918, render judgment in favor of the plaintiff and against this defendant for the suni of $160.00 principal, $33.60 interest to date, but no judgment for costs was rendered.' Upon the rendition of said judgment counsel made an oral motion for new trial, and the same was on said date, to wit June 5, 1918, overruled by the court. The judgment of the court is a final judgment, and your petitioner is dissatisfied therewith, and now, within thirty days from the final determination of said cause, petitioner having complied with all the law in such cases, presents this his petition for certiorari, in which petition he here and now sets forth fully and distinctly the nature of the cause, what occurred on the trial, and the errors complained of.” The petition was sanctioned, the writ of certiorari issued, and an answer was filed. On the hearing of the case a motion was made to dismiss the petition and quash the writ on three grounds, to wit: “ 1. Because the petition for said writ of certiorari complains of and is to the judgment of the court rendered at the trial of said case, which was not the final adjudication of said case, the said S. E. Green having made his motion for new trial to said judgment, which was duly prosecuted by the said S. E. Green, and at the hearing thereof was overruled, which was the final adjudication of said case in the municipal court of Atlanta, F. S. 2. Because said petition for certiorari does not complain of the overruling of his said motion for new trial, made in said case by the said S. E. Green, and no error is assigned to the overruling of said motion for new trial, which was the final adjudication of said case in the municipal court of Atlanta, Fulton Section. 3. Said petition fails to set forth the ground or grounds upon which said motion for new trial was based, and therefore the court cannot adjudicate the question of whether or not the trial in the municipal court of Atlanta, F. S., erred in overruling said motion for new trial, and therefore said petition for said writ of certiorari is insufficient in law, in that same does not set forth plainly, fully, and distinctly the errors complained of, as required by law, and therefore said writ of certiorari is void and should be quashed.” The judge of the superior court passed the following order: “ The within motion coming on to be heard, after argument of counsel for defendant and plaintiff in certiorari it is ordered and adjudged that the within and foregoing motion made by defendant in certiorari be and the same is hereby sustained, because said writ of certiorari is not taken from the final adjudication of the case in the municipal court of Atlanta, Ga. It is ordered and adjudged that the order 'granting the writ of certiorari in this case be set aside, and the same is hereby set aside, and that the writ of certiorari herein issued be and the same is hereby quashed.” To this order exceptions'were taken.

      George Campbell, Neufville & Neufville, for plaintiff in error.

      Albert Kemper, contra.
   Bloodworth, J.

(After stating the foregoing facts.)

An examination of the assignment of error in the petition for certiorari, which is copied in the foregoing statement of facts, will show that it is not clear whether movant sought to except to the original judgment awarding $160.00 principal and $33.60 interest, ox to the order overruling his oral motion for new trial. However, plaintiff in error cannot complain if this court resolves the uncertainty in favor of his contention as set out in the bill of exceptions as follows: “That the certiorari shows on its face that it was taken from the final judgment, to wit the judgment denying the motion for new trial.” So construing it, this court must hold that the judgment on the hearing of the certiorari be affirmed, because the grounds upon which the oral motion for a new trial was made are not stated in the petition for certiorari, and the errors complained of are not “ plainly and distinctly set forth ” as required by law. Civil Code (1910), § 5183. The third ground of the motion to dismiss the petition goes directly to this point. Without knowing what the grounds of the motion for new trial were, this court cannot say that the'trial judge erred in overruling them. The Supreme Court said in Citizens Banking Co. v. Paris, 119 Ga. 518 (46 S. E. 638): “The question, therefore, to be determined is whether a petition for certiorari which contains no assignment of error, or, what is the same thing, no proper assignment of error, is absolutely void. The statute relating to bills of exceptions in the Supreme Court provides that the ‘bill of exceptions shall specify plainly the decisions complained of, and the alleged error.’ Civil Code § 5527 [Civil Code of 1910, § 6139]. It has been held that a bill of exceptions which contains no assignment of error or an insufficient assignment of error presents nothing for decision by the Supreme Court, and must be dismissed. Sewell v. Conkle, 64 Ga. 436; Smith v. Frost, 74 Ga. 824; Williams v. Railroad Company, 98 Ga. 392; Dismukes v. Bainbridge State Bank, 99 Ga. 179; Wheeler v. Worley, 110 Ga. 513; Jackson v. Fitzpatrick, 114 Ga. 364; Neal Loan and Banking Co. v. Wright, 116 Ga. 395. The certiorari statute provides that the petition ‘shall plainly and distinctly set forth the errors complained of.’ Civil Code § 4637 [Civil Code of 1910, § 5183], The requirement of this statute is very similar to that for bills of exceptions, and the principle of the decisions above cited would apply to petitions for certiorari. A petition for certiorari which contains no ‘ assignment of error with which the court can deal is an absolute nullity. It is so much waste paper, and the court has no authority to decide any question which is sought to be raised therein, and can only strike the petition from its files.”

Under the above rulings the conclusion reached by the judge of the superior court in this case was correct and must be adhered to, notwithstanding the fact that the judge gave a reason for his decision different from that upon which this opinion is based. “ A judgment that is right remains right, notwithstanding that the court rendering the judgment may assign a wrong reason for it.” Doe v. Roe, 20 Ga. 689 (3) (65 Am. Dec. 639). See also Wynn v. Wynn, 68 Ga. 820 (2).

Judgment affirmed.

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


text:
    11117.
    HINES, director-general, v. WALLACE.
    Decided June 15, 1920.
    1. The evidence authorized a recovery for the loss of the trunk sent by the plaintiff to the railroad-station and left there at the baggage-room of the terminal company with a person employed by it in the cheeking of baggage, who accepted the ■ trunk for temporary storage, although no baggage or claim-check was given for it and no railroad-ticket was presented with it, and although the employee who accepted it may not have been authorized to do so where no such check was given or ticket presented, it not appearing that the plaintiff or the person who delivered the trunk for her knew of such a limitation upon the employee’s authority.

      (a) Private instructions or limitations not known to persons dealing with an agent who assumes to act within the apparent scope of his authority cannot affect them.
    2. The rules of the interstate-commerce commission were properly rejected as evidence.
    Certiorari; from Fulton superior court — Judge Pendleton. September 26, 1919.
    The plaintiff, intending to make a railroad trip on the following day from the Terminal Station in Atlanta to Montgomery, Alabama, sent her trunk to the station by a truckman, who, according to his testimony, left it there inside the door of the place where trunks were received at the baggage-room of the Atlanta Terminal Company, with an employee in the office of the checkroom that leads to the baggage-room, who accepted the trunk for storage until the plaintiff should call for it. There was no one in the office but this employee. No baggage or claim-check was given for it, and the plaintiff had not obtained a railroad-ticket. When she called for the trunk the next day it could not be found, and it was not subsequently found. Mrs. Ramsden, the employee mentioned above, denied that she accepted the trunk; and it was testified in behalf of the defendant that neither this employee nor any one else at the station was authorized to receive baggage and hold it without the issuance of a claim-check; that she was employed as a checking clerk, to issue checks for baggage on transportation tickets and claim-checks of passengers going out on trains; that it was not her duty to issue claim-checks, but where a passenger or the passenger’s representative wished to leave baggage in the station to be checked out later on a train, an employee at the baggage-room would issue a claim-check for it. The defendant introduced in evidence a rule of the railroad commission of Georgia, as follows: “ Rule 4. All railroads, depots, or terminal companies in this State shall receive at all stations where they have agents all baggage proper for transportation presented by prospective passengers or their agents, and issue on demand a claim-check for the same; and upon presentation by holder of such claim-check with transportation, said company shall issue train-cheeks.” This rule was immediately followed by the statement that “ These rules are applicable only to passengers on railroad-trains.” It was testified that it was “the policy of the Terminal Station to observe that rule;” there was no other written rule with reference to how it should be carried out; it was “just done by instructions to the force.” The truckman testified that this trunk was the only one he had ever carried to the Atlanta Terminal Station, and that he “never thought that if you carry a trunk there not to be checked right away, you have to get a claim-check for it;” but “ if I had stopped to think about it I knew that if I did not check a trunk right away, I ought to get a claim-check; I knew that, but did not think about it on that occasion.”

      Brewster, Howell & Heyman, Hugh, Howell, for plaintiff in error.

      Horace Russell, Watkins, Harwell & Watkins, contra.
   Bloodworth, J.

Suit for damages on account of the loss of a trunk, alleged to have been turned over by the plaintiff to the Atlanta Terminal Company, was filed in tbe municipal court of Atlanta against Walker D. Hines, director-general of railroads, operating that company. Judgment was rendered in favor of the plaintiff, certiorari was overruled by the judge of the superior court, and the case was brought to this court. It appears from the record that the truckman who as agent of the plaintiff delivered the trunk to the terminal company did not demand a baggage or claim-check, and that one Mrs. Bamsden, an employee and agent of the terminal company, who was in the office of the checkroom that leads to the baggage-room, accepted the trunk without issuing a claim-check or a check of any kind for it, and that the trunk was pointed, out to her by the truckman before she accepted it for temporary storage.

1. Hnder all the facts of. the case the truckman had a right to assume that this employee and agent of the terminal company, in this particular office, the office being open for business and she being the only one there, had a right to accept the trunk in behalf of the company; and this assumption was strengthened by the fact that the. said employee did, according to the evidence, actually accept the trunk, thereby implying that she had authority to do so. The party so accepting the trunk was an agent of and was placed in this position by the company. “ If one or two innocent parties must suffer by the act of a third party, he who put it in the power of such third party to do the wrongful act must suffer the loss, rather than the other innocent party who would be a victim without any fault on his part.” Blaisdell v. Bohr, 77 Ga. 381 (&); Civil Code (1910), § 4537. “Private instructions or limitations not known to persons dealing with an agent who assumes to act within the apparent scope of his authority cannot affect them.” Hutson v. Prudential Insurance Co., 122 Ga. 850 (50 S. E. 1000). See, in this connection, Coskery v. Nagle, 83 Ga. 696, 699 (10 S. E. 491, 6 L. R. A. 483, 20 Am. St. R. 333); Civil Code (1910), § 3595.

2. Certain rules of the interstate-commerce commission pertaining to handling baggage were tendered in evidence by the defendant and-were rejected by the trial court. Granting that there was a sufficient assignment of error relative to the ruling on this evidence, no error was committed in rejecting it.

3. There is ample evidence to support the judgment of the municipal court, the judge of the superior court did not err in overruling the certiorari, and the judgment is

Affirmed.

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


text:
    11211.
    Payne v. Braswell.
    Decided June 15, 1920.
    Foreclosure of lien; from city court of Monroe — Judge Stone. November 17, 1919.

      Orrin Roberts, for plaintiff in error.

      R. L. & H. C. Cox, E. W. Roberts, contra.
   Bloodworth, J.

1. The special grounds of the motion for new trial are without merit, and the evidence warranted the verdict for plaintiff.

2. Not being fully convinced that this case was brought to this court for delay only, the request to award damages against the plaintiff as provided by section 6213 of the Civil Code of 1910 is denied.

Judgment affirmed.

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


text:
    11217.
    Burton v. Bearden.
    Decided June 15, 1920.
    Distraint; from Cherokee superior court—-Judge Morris. December 29, 1919.

      E. W. Coleman, for plaintiff in error.

      Howell Brooke, contra.
   Bloodworth, J.

The special grounds of the' motion for new trial are without merit; there is evidence to support the verdict, which is approved by the trial judge, and the judgment is

Affirmed.

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


text:
    11225.
    Williams v. The State.
   Luke, J.

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

2. Upon the hearing of the defendant’s motion for a continuance, based upon the absence of a material witness, the movant did not state that he expected to have the testimony of the witness at the next term of the court. It was therefore not error to overrule the motion.

Decided June 15, 1920.

Indictment lor larceny from house; from city court of Carroll-ton— Judge Beall. December 5, 1919.

Williams was convicted of simple larceny, under an indictment which charged larceny from the house. The indictment described the stolen property as “one leather collar of the value of $4.00, and one pair leather buggy lines of the value of $2.00, of the personal goods of” Emory Thomas in his buggy-house. In the demurrer it was contended that this description was not sufficiently specific.

As to possession of the articles alleged to have been stolen, the court charged the jury as follows: “Were they recently found in the possession of Will Williams, the defendant on trial? If you find that they were, has Will Williams made satisfactory explanation of his possession and shown to your satisfaction that he was not recently in possession of them? If he has, then you could not convict him. But if you should find that the goods were stolen, that they were recently found in the possession of Will Williams, the defendant, and he has not made satisfactory explanation, and explanation that satisfies you as jurors, then that would be a circumstance that would authorize you to convict the defendant.” In the motion for a new trial it is alleged that the court erred in charging, “If you find that they were [recently found in the possession of Will Williams], has Will Williams made satisfactory explanation of his possession and shown to your satisfaction that he was not recently in possession of them.” The exception to this part of the charge is that it “conveyed to the jury the idea that movant must show that he was not in recent possession of the goods, rather than that he must explain possession; and such language is so positive and so misleading that no subsequent language in an effort to modify the same could be sufficient to clear the minds of the jury of the impression.”

R. W. Adamson, for plaintiff in error.

Willis Smith, solicitor, contra.

3. The charge upon the subject of recent possession of stolen property was confusing to the jury, in that it tended to mislead them into thinking, that the defendant had the burden of showing that he had never been in the recent possession of the stolen property. As it was a very close case upon its facts, this error requires another trial.

Judgment reversed.

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


text:
    11234.
    Clover Leaf Casualty Co. et al. v. National Life Insurance Company.
    Decided June 15, 1920.
    Action for damages; from Fnlton superior court — Judge Bell. October 25, 1919.
    The National Life Insurance Company of the United States of America sued the Clover Leaf Casualty Company, George W. Cooper, and J. E. Ashley for damages, alleging that the defendants conspired together to persuade and did persuade and cause certain agents of the plaintiff to break their contracts of employment with the plaintiff and leave its service for the service of the defendant company. Ashley died and was stricken as a party defendant. The trial of the case resulted in a verdict against the other defendants, their motion for a new trial was overruled, and they excepted.
    Paragraph 3 of the foregoing decision relates to testimony of PI. C. Iietterer as to certain conversations and transactions witli Ashley, to which the defendants objected on the grounds that the conversations and transactions were solely between a deceased agent of the defendant company and an agent of the plaintiff, and that the statements made and advice given to Ashley by the witness, who was an agent of the plaintiff, could not bind the defendants, being made without their knowledge, and were prejudicial to the rights of the defendants and tended to mislead and confuse the jury. The witness stated that in these conversations Ashley exhibited his contract of employment with the Glover Leaf Casualty Company and told of his employing the agents and “working on the men,” and of the commissions to be paid, and discussed methods of getting men away from the National Life Insurance Company.
   Bloodworth, J.

1. When the charge of the court as given is considered in its entirety and in connection with all the facts of the case, there is no reversible error in any of the excerpts therefrom of which complaint is made.

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

3. The court did not err in admitting the evidence of .which complaint is made in the 8th ground of the motion for new trial.

4. There was evidence to support the verdict.

Judgment affirmed.

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

Dorsey, Shelton & Dorsey, G. L. Bynum, for plaintiffs in error.

Moore & Pomeroy, contra.


text:
    11283.
    Polhill v. The State.
    Decided June 15, 1920.
    Accusation of cheating and swindling; from city court of Nashville— Judge W. E. Smith. January 12, 1920.

      C. A. Christian, Story & Story, for plaintiff in error.

      J. H. Gary, solicitor, contra.
   Luke, J.

1. The judgment overruling the demurrer in this case can not be considered, as no assignment of error upon the exception pendente lite, or upon the judgment overruling the demurrer, is contained in the final bill of exceptions, nor was error assigned thereon, by permission of this court, before the beginning of the argument here. A judgment upon the demurrer can not bo considered upon the motion for a new trial.

2. The motion for a new trial is based on the general grounds only, and this court can not say that the evidence did not authorize the verdict. 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:
    11320.
    Crutchfield v. Green, administrator.
    Decided June 15, 1920.
    Foreclosure of mortgage; from Jones superior court — Judge Park. December 27, 1919.
   Bloodworth, J.

“ 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. Broom, 21 Ga. App. 420 (94 S. E. 645), and cases cited. In the order overruling the motion for new trial the judge said: “'No error of law is complained of, and the evidence authorized the verdict, and under the law and facts of this case I do not feel authorized to set aside the verdict.” The trial judge, who has some discretion in setting aside a verdict on conflicting evidence, having refused a new trial, and no error of law having been committed, this court has no authority to interfere.

Judgment affirmed.

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

J. C. Barron, for plaintiff in error.

F. Holmes Johnson, contra.


author: Ltjke, J.

text:
    11321.
    Gilbert v. The State.
    Decided June 15, 1920.
    Indictment for misdemeanor; from Laurens superior court — Judge Kent. February 5, 1920.
    Gilbert was indicted under section 387 of the Penal Code (1910), the indictment charging him with having used obscene, vulgar, and profane language in the presence of a female. One of the grounds of the motion for a new trial was that the court permitted a named witness to testify that the defendant was drunk; the defendant’s attorney objecting to this testimony on the ground that it was irrelevant, immaterial, and prejudicial. In the brief of counsel for the plaintiff in error it was requested that the Court of Appeals request the Supreme Court to overrule or modify the ruling made in Pierce v. Slate, 53 Ga. 365, as to proof of drunkenness in such a case.

      W. A. Dampier, S. P. New, for plaintiff in error.

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

1. Tlie evidence in this case amply supported the verdict of guilty, and there was no error in the admission of evidence.

2. The assignment of error upon the alleged improper argument of counsel for the State raises no question for the determination of this court, since no motion for a mistrial was made.

3. For no reason assigned was it error to overrule the motion for a new trial.

Judgment affirmed.

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


text:
    11334, 11335.
    PHIPPS et al. v. GULF REFINING CO.; and vice versa.

    Decided June 15, 1920.
    Injury inflicted in the operation of a truck owned by one who used it in the business of selling and delivering goods furnished by another would not render the latter liable for damages, under the state of facts shown by the evidence in this case; and it was not error to direct a verdict for the defendant.

      Action for damages; from Whitfield superior court-—-Judge Tarver. January 6, 1920.
    The Gulf Eefining Company was sued for damages on account of the killing of the father of the plaintiffs by a truck owned by A. M. Hopkins and driven by his employee, which was being used by Hopkins in the business of selling and delivering oils and gasoline furnished by the company, and in collecting empty barrels and other containers to be returned to it; the plaintiffs alleging that the truck was in such a defective and dangerous condition that to drive it on a public road was gross negligence, the steering apparatus being so worn and broken that the driver could not control the movements of the truck; and that the company was operating it through Hopkins, who was alleged to be an employee of the company.
    The question argued in the briefs in this court was whether the relation of Hopkins to the company, under a written contract between them and the other facts of the case, was such as to render the company liable for injury inflicted in the operation of his truck. On the part of the company it was contended that he was merely a consignee of its goods or an independent contractor, and not an employee or agent for whose operation of the truck the company could be held liable, and that the relation between them was governed entirely by the written contract. There was evidence that the company was a corporation of the State of Texas, and had at Dalton, Georgia, a plant, including a warehouse, where oils and other products sold by it were kept, and that Hopkins was- in charge of the plant and of the business .conducted there; that the company’s name was painted on the truck, although it was his individual property, his purpose as stated by him being to let the public know that he was handling the company’s products; that tax-returns of the company’s property in the county were signed by him, and he was named as its agent in certain advertisements run by him and on one of the trucks used in delivering oil; and service of this suit was made on»him as the company’s agent. He testified that his relationship with the company and his powers to represent it were all stated in the contract referred to above, which was as follows:
    "This memorandum of agreement made and entered into this second day of April, 1918, by and between the Gulf Eefining Company, Atlanta, Ga., party of the first part, and A. M. Hopkins, of Dalton, Georgia, party of the second part, witnesseth: The party of the first part agrees to furnish a warehouse at Dalton, Georgia, suitable for the storage of oils. Party of the first part agrees to furnish a warehouse at Dalton, Georgia, suitable for the storage of oils. Party of the first part agrees to ship to party of the second part lubricating oils, illuminating oils, and gasoline, in carload lots, which shipments are to be received by the party of the second part and sold by him at prices named by party of the first part — all sales of such oils to be for cash; if on credit, only to such parties as are acceptable to party of the first part and upon terms authorized by them. When first party orders second party to sell on credit, second party shall deliver a signed receipt, or in case the oil is shipped out of the city of Dalton, Ga., second party will deliver an original bill of lading from the railroad company, which shall constitute a receipt. Party of the second part is to be responsible to the party of the first part for all goods shipped to him and is to account for all sales in accordance with above paragraph, sending three times weekly a statement showing all sales made and remitting three times weekly to party of the first part, at their Atlanta, Ga., office, all moneys received by him from sale of above-named goods. Second party shall render to party of the first part statement on the first day of each month, showing in detail the goods on hand. Second party agrees to pay all dray-age and delivery charges, and collect all empty drums and barrels and ship same back to first party as ordered. It is strictly understood that all goods shipped party of the second part by party of the first part are the property of the first party until sold. Dalton, Ga., points to be made by wagon. Bocky Face, Tunnel Hill, Binggold, Waring, Varnells, Cohutta, Bed Clay, Spring Place, Tilton, Chatsworth, Eton, Besaca, Calhoun, Phelps, Carbondale, Hill City, Sugar Valley, Deep Springs, Beaverdale. On or about the first of each month, party of the first part will send to the party of the second part a statement showing the sales made by party of the second part during the preceding month, remitting party of the second part commission earned on such sales, said commission to be 2 cents per gallon on kerosene and gasoline when sold in milk cans or tank wagons, and 2 cents per gallon when sold in original package such as drums, barrels, cans or cases, and 10 per cent of invoice on lubricating oils, where oil is delivered by party of the second part without payment of railroad freight charges. Where shipments are made by railroad, commission to party of the second part is to be 2 cents per gallon on kerosene and gasoline and 10 per cent, of the invoice on lubricating oils, and party of the first part is to allow party of the second part amount of freight paid on such shipments. Party of the first part reserves the privilege of making shipments from its stock of goods in hands of second party, and second party agrees to fill such orders as may be sent them by party of the first part — no commission to be allowed party of the second part on such shipments, but first party will pay second party 25 cents per barrel for draya'ge and clerical work in making such shipments. This contract may be terminated by either party upon ten days’ written notice to the other party and upon such termination each party shall settle with the other in full any and all amounts which may be due by either party to the other.” Signed by the parties.
    There was evidence as to the defective condition of the truck, and as to the inability of the driver to control it, because of that condition, when it caused the death of the father of the plaintiffs by striking an automobile in which he was riding on a public road and which its driver was attempting to drive out of the way of the truck. The main bill of exceptions complains of the direction of a verdict for the defendant; and in the cross-bill of exceptions the defendant complains of the overruling of a demurrer to the petition.

      Maddox, McCamy & Shumate, for plaintiffs,
    cited: 132 U. S. 518; 124 Ga. 735; 2 Ga. App. 565; 6 Ga. App. 147 (1); 9 Ga. App. 752.

      W. Carroll Latimer, Frank K. McCutchen, C. D. McCutchen, for defendant,
    cited: 108 Ga. 397; 94 Ga. 463; 85 Ga. 38; 40 Ga. 363, 371-2; 18 Ga. App. 446 (2); Civil Code (1910), §§ 4414, 4415; 168 Ill. 514 (48 N. E. 163); 25 Ky. Law Reporter, 1758 (78 S. W. 862); 54 App. Div. (N. Y.) 252 (66 N. Y. Supp. 522); 132 U. S. 518 (distinguished).
   Bloodworth, J.

The court did not err in directing a verdict for the defendant.

Judgment on main hill of exceptions affirmed; cross-hill dismissed.

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


text:
    11347.
    Conner v. Farmers & Merchants Bank of Brewton.
    Decided June 15, 1920.
    Trover; from city court of Dublin — Judge Flynt. January 30, 1930.
    The bill of exceptions states that “the only question of law presented and passed upon by the court was whether or not the document in evidence was a mortgage, or a bill of sale passing title so that bail-trover would lie.” In the document in question the form of a deed of bargain and sale conveying title to personal property is followed by the statement that “This conveyance is intended to operate as provided in sections 3771, 3775, and 5433 of the Civil Code in regard to the sale of property to secure debts and pass the title of the property described into the said Farmers and Merchants Bank, Brewton, Ga. (a bond to reconvey said property in terms of the statute having been executed contemporaneously herewith, the receipt of which is hereby acknowledged by the said maker), the debt hereby evidenced and secured being,” etc., specifying the debt. The action was by the Farmers and Merchants Bank against the maker of this instrument; a verdict was rendered against the defendant, and, her motion for a new trial being overruled, she excepted.

      W. A. Dampier, J. A. Merritt, for plaintiff in error, cited Stokes, v. Hollis, 43 Ga. 262-263.

      Larsen & Crochett, contra, cited Ellison v. Wilson, 7 Ga. App. 314.
   Luke, J.

This case is controlled by the decision in the case of Owens v. Bridges, 13 Ga. App. 419 (1) (79 S. E. 225), and cases cited. The judgment rendered in favor of the plaintiff was proper, and it was not error to overrule the motion for a new trial.

Judgment affirmed.

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


text:
    11425.
    Alexander v. The State.
    Decided June 15, 1920.
   Luke, J.

The evidence in this case authorized the conviction of the defendant, who was charged with carrying a pistol without a license; and it was not error to overrule and deny his petition for certiorari. See Cheney v. State, 10 Ga. App. 451 (73 S. E. 607) ; Green v. State, 23 Ga. App. 519 (98 S. E. 553).

Judgment affirmed.

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

Certiorari; from Putnam superior court — Judge Park. March 17, 1920.

Sidney Alexander was convicted in Putnam county court of tbe offense of carrying a pistol without a license. From the petition for certiorari it appears, that it was testified that the defendant had a pistol in his hand at the house of Daisy Lawson, and it went off and shot the lamp out, and, when the shot was made, Alonza Alexander, who had come with him to the house, grabbed the pistol and ran off with it, and the defendant remained at the house. The witnesses did not know who owned the pistol or who brought it to the house. The defendant, in his statement at the trial, said that the pistol did not belong to him and that it was brought to Daisy Lawson’s house by Alonza Alexander; that when they got to the house Alonza took it out of his (Alonza’s) pocket and tried to sell it to him, and he (the defendant) was merely looking at it when it went off and shot out the lamp, and Alonza grabbed it and ran off. The judge’s answer to the certiorari states, that the evidence is correctly set forth in the petition except that one of the witnesses testified that he saw Alonza, not at Daisy Lawson’s house, but up town, try'to sell the pistol to Sidney Alexander; and no witness testified that at Daisy Lawson’s house the defendant and Alonza were talking about a trade for the pistol. The petitioner alleged: that the judgment was contrary to law and to the evidence and without evidence to support it; that there was no evidence that he had the pistol with intent to carry it to some other place than that at which the manual possession began, and that the only evidence was that he had it in his possession for the purpose of examination; citing 12 Ga. App. 427.

R. C. Jenkins, for plaintiff in error.

Doyle Campbell, solicitor-general, contra.


author: Broyles, C. J.

text:
    11426.
    Hunter v. Staten.
    Decided June 15, 1920.
   Broyles, C. J.

The verdict was authorized by the evidence, 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.

Trover; from city court of Valdosta—Judge Cranford. March 5, 1920.

F. S. Harrell, for plaintiff in error.

Dan R. Bruce, contra.


text:
    11429.
    RAMBO v. THE STATE.
    Decided June 15, 1920.
    A motion ill arrest of judgment will lie where the exceptions are to a defect appearing on the face of the. indictment (Williams v. State, 4 Ga. App. 853, 62 S. E. 525), and are to the substance of the indictment, and where the defect affects the real merits of the offense charged (Penal Code of 1910, § 980) and is such as to render the indictment void. Gazaway v. State, 9 Ga. App. 190 (70 S. E. 978).
    An indictment for larceny after trust, charging the conversion of money intrusted to the defendant, which failed to charge that he “ fraudulently” converted it, was absolutely void, under section 192 of the Penal Code of 1910.
    Indictment for larceny after trust; from Fulton superior court •—-Judge Humphries. March 14, 1920.

      Etheridge, Sams & Etheridge, Frank A. Hooper & Son, for plaintiff in error.

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

H. M. Rambo was charged in the indictment “ with the offense of larceny after trust, for that said accused in the county of Fulton and State of Georgia, on the 1st day of August, 1919, with force and arms, being then and there employed as a salesman and collector for the Honduras Coffee Company, a corporation, and as such employee having been entrusted by said Honduras Coffee Company with four hundred dollars ($400.00) in money, of the value of four hundred dollars and the property of the aforesaid corporation, for the purpose of accounting to and delivering to said Honduras Coffee Company said sum of money, did, after having been so intrusted, convert said sum of money to his, the aforesaid H. M. Rambo’s own use, contrary to the laws of said State, the.good order, peace, and dignity thereof.” The defendant was tried and convicted, and made a motion in arrest of judgment, upon the ground that the indictment was fatally defective because it “fails to allege 'any ‘fraudulent’ conversion.” This motion in arrest of judgment was overruled by the trial judge, and the case was brought to this court for review.

A motion in arrest of judgment will lie where the exceptions are to a defect appearing on the face of the indictment (Williams v. State, supra) and are to the substance of the indictment, and where the defect affects the real merits of the offense charged (Penal Code of 19.10, § 980) and is such as to render the indictment void. Gazaway v. State, supra. In this case the defect which appears on the face of the indictment is in its “substance,” and affects “the real merits of the offense charged,” for it is not alleged that the accused did “fraudulently convert,” as required by section 192 of the Penal Code. The words “fraudulently convert” “are inherent in the body of the definition of the offense and can not be separated from it. Every allegation in .this indictment may be true, and yet the plaintiff in error be guiltless of any violation of the law; for the facts stated do not necessarily constitute an offense by the law.” Herring v. State, 114 Ga. 102 (39 S. E. 869). Justice Lewis, in Keys v. State, 112 Ga. 396 (37 S. E. 764, 81 Am. St. R. 63), said: “Indeed, so far as our research has extended, the weight of authority is based upon the idea that the gravamen of the offense of larceny after trust is the fraudulent conversion of the property of another, and therein consists the crime of larceny.” Justice Little in the case of Almand v. State, 110 Ga. 885 (36 S. E. 216, 78 Am. St. R. 140), said: “It must be noted, however, that it takes more than this to constitute the offense with which the accused was charged [larceny after trust]. Undoubtedly the check was converted from the use to which it was intended by the owner to have been put; but it is only when a fraudulent conversion has been made that a criminal offense is committed.” See, in this connection, Herrington v. State, 121 Ga. 141 (48 S. E. 908).

Under the above rulings the indictment is fatally defective, is absolutely void, and the judge erred in overruling the motion in arrest of judgment. 'The above being controlling, it is unnecessary to pass on the other assignments of error.

Judgment reversed.

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


text:
    11483.
    Rambo v. The State.
    Decided June 15, 1920.
    Indictment for larceny after trust; from Fulton superior court — Judge Humphries. March 14, 1920.

      Etheridge, Sams & Etheridge, Frank A. Hooper & Son, for plaintiff in error.

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

This case is controlled, by the ruling in Ramio v. State, ante, 390.

Judgment reversed.

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


text:
    11430.
    Davis v. The State.
    Decided June 15, 1920.
    Indictment for possession of liquor; from Muscogee superior court — Judge Howard. March 20, 1920.

      D. L. Parmer, for plaintiff in error.

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

The motion for a new trial contained only the usual general grounds; the verdict was authorized by the evidence, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11433.
    SHAW v. THE STATE.
    Decided June 15, 1920.
    Unlawful possession of intoxicating liquor by the accused was sufficiently shown by the evidence. The name of the liquid is immaterial.
    Accusation of misdemeanor; from city court of Nashville — Judge Smith. March 22, 1920.

      R. A. Hendricks, for plaintiff in error.

      J. H. Gary, solicitor, contra.
   Luke, J.

The defendant was charged with having and possessing intoxicating liquors in violation of the law. The witness testified that the defendant possessed one barrel of‘“buck,” which is made from corn, syrup, and water, and that “buck” was intoxicating. It makes no difference by what name an intoxicant may be known, tlie question is whether the liquid is an intoxicant. The defendant’s evidence to the effect that the liquid was just for hog feed was not believed by the jury. The charge of the court was full and fair, and the conviction of the defendant was not without evidence to support it. For no reason assigned was it error to overrule the motion for a new trial.

Judgment affirmed.

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


text:
    11434.
    LOYD v. THE STATE.
    Decided June 15, 1920.
    Where application for bail was made pending a motion for a new trial by one convicted of rape under a verdict which recommended him to the mercy of the court, it was within the sound discretion of the presiding judge whether the application should be granted; and this court cannot say as a matter of law that his refusal to grant it was an abuse of discretion.
    Application for bail; from Bleckley superior court — Judge Graham. March 8, 1920.

      John R. Cooper, C. A. Weddington, for plaintiff in error.
   Bloodworth, J.

Defendant was indicted and tried for rape. The jury found him guilty and recommended him to mercy. Pending a motion for a new trial he made application for bail, and, in his brief, he insists that “ the Georgia legislature has made it mandatory upon the trial judges to grant bail after a motion for new trial has been filed;” relying on the act of 1916 (Ga. L. 1916, p. 157). In Crumley v. Gibbs, 149 Ga. 119 (99 S. E. 297), the Supreme Court construed this act, and said: “It was not intended to take away the discretion of the trial judge in the matter of granting bail.” Hnder this ruling it was within the sound discretion of the trial judge to refuse bail in this case, and this court cannot say as a matter of law that he abused his discretion. See also Barnes v. State, 24 Ga. App. 373 (2).

Judgment affirmed.

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


text:
    11437.
    ADAMS v. THE STATE.
    Decided June 15, 1920.
    Relationship which would disqualify a juror was not so clearly established in this case as to authorize this court to hold that the trial judge erred in overruling the motion for a new trial, in which such relationship was alleged.
    Conviction of manslaughter; from Coffee superior court — Judge Summerall. February 28, 1920.

      C. A. Ward, R. B. Chastain, Casey Thigpen, for plaintiff in error.

      A. B. Spence, solicitor-general, F. Willis Dart, contra.
   Broyles, C. J.

The sole assignment of error in the bill of exceptions is to the overruling of the amendment to the motion for a new trial, which was based upon the alleged relationship, within the prohibited degree, of one of the jurors to the deceased (whom the defendant was convicted of slaying), and another of the jurors to a named person who had contributed to a fund to employ counsel to assist in the prosecution of the defendant. Under the facts of the case, this court can not determine that, as a matter of law, the alleged relationship was so clearly established that the trial judge erred in overruling the motion for a new trial. See, in this connection, Davis v. State, 150 Ga. 19 (102 S. E. 445); 24 Ga. App. 776 (102 S. E. 378).

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11438.
    Ellis v. The State.
    Decided June 15, 1920.
    Conviction of manslaughter; from Clarice superior court — Judge Cobb. February 25, 1920.
   Luke, J.

1. Motions for continuance, while addressed largely to the discretion of the trial judge, must come up to the requirement of law as to diligence, service of subpoena, etc. In this case no legal showing for a continuance was made, and it was not error to overrule the motion for a continuance.

2. The verdict of voluntary manslaughter was authorized by the evidence, and it was not error to overrule the motion for a new trial.

Judgment affirmed.

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

Thomas & Thomas, for plaintiff in error.

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


text:
    11439.
    Fields et al. v. Shores-Mueller Co.
    Decided June 15, 1920.
    Action on guaranty; from city court of Sylvester — Juflge Monk. ■ March 16, 1920.

      J. J. Forehand, for plaintiffs in error.

      Passmore & Forehand, contra.
   Broyles, C. J.

1. Ordinarily before an action can be maintained against a guarantor, it must be shown that the principal is unable to perform. Manry v. Waxelbaum, 108 Ga. 14 (33 S. E. 701); Musgrove v. Publishing Co., 5 Ga. App. 279 (63 S. E. 52).

(a) The decision in Fonché v. Cherokee National Bank, 18 Ga. App. 569 (90 S. E. 102), and the authorities there cited, apply to undertakings of a different character from that involved in the instant case.

2. This was a suit against guarantors, and, while the insolvency of the principal was alleged in the petition, there was no evidence whatever to sustain that allegation. The verdict against the guarantors was therefore unsupported by the evidence,, and the court erred in overruling the motion for a new trial.

3. In view of the above ruling, it is unnecessary to consider the special grounds of the motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    11446.
    HINES, director-general, et al. v. McCOOK.
    1. In charging the jury it is not error for the court to state to the jury any contention of the plaintiff as set forth in his petition, where it is supported by evidence, and especially where the contention and the stated facts upon which it is based are expressly and specifically denied in the defendant’s answer. This is true even though the undisputed evidence may show that "for some other reason the plaintiff is not entitled to recover on that particular contention. Prejudicial error was committed as to one of the defendants in this ease, .however, in the statement of the court to the jury that the plaintiff alleged that the defendants were negligent in establishing and maintaining a dangerous crossing, when no such allegation was made as to that defendant and . the allegation as to negligence in this respect was limited to the other defendant.

      Decided June 15, 1920.
    Reheasins denied Judy 14, 1920.
    2. The statutory presumption of negligence, as set forth in section 2780 of the Civil Code of 1910, is applicable in a suit against the director-general of railroads, where the damage sued for was caused by the running of the locomotives or cars of any of the railroads under his control as director-general.
    Action for damages; from city court of Albany — Judge Clayton Jones. March 8, 1920.

      Peacock & Gardner, Pope & Bennet, for plaintiffs in error.

      E. E. Cox, Lippitt & Burt, contra.
   Broyles, C. J.

Mrs. Nora McCook brought her joint suit against Walker D. Hines, director-general of railroads, and H. A. McGee, for the alleged negligent homicide of her husband at a railroad-crossing. A verdict against both defendants was returned, their separate motions for a new trial were overruled, and they excepted. Counsel for the plaintiffs in error, in their brief and in their oral argument before this court, expressly abandoned every assignment of error except as to the overruling of the 4th, 5th, and 6th special grounds of the motions for a new trial.

The 4-tli ground in effect complains that the court erred in stating to the jury that the plaintiff alleged that the defendants, the director-general of railroads and McGee, were negligent in establishing and maintaining an unsafe and dangerous crossing. This charge was clearly erroneous and prejudicial so far as the defendant McGee was concerned, since the plaintiff in her petition did not charge McGee with this particular act of negligence, but specifically limited it to the other defendant, the director-general of railroads; and as it is impossible to know on which particular act of negligence alleged in the petition the verdict against the defendant McGee was based, this error requires a new trial for him.

The charge is further complained of as erroneous as' against the other defendant, the director-general of railroads, for the reason that the undisputed evidence showed that the déceased was well acquainted with the dangerous crossing, and that he voluntarily, and not in an emergency, attempted to use it, and that therefore he was himself guilty of such gross negligence as to bar the plaintiff from a recovery on this particular allegation of negligence. Counsel for the director-general of railroads earnestly insist that under such circumstances it was harmful error against that defendant for the court to merely instruct the jury that one of the contentions of the plaintiff was that the defendant was negligent in maintaining an unsafe and dangerous' crossing. We can not agree with this contention of learned counsel. Conceding, for the sake of the argument, that counsel are correct in their contention that the undisputed evidence showed that the deceased personally knew that the crossing was unsafe and dangerous, and that he voluntarily and not in an emergency attempted to use it, and therefore that the plaintiff was not entitled to recover on account of the negligence of the defendant in maintaining the crossing, we do not think that the court erred in merely stating to the jury that one of the contentions of the plaintiff was that the defendant was negligent in maintaining an unsafe and dangerous crossing. This contention was specifically set out in the plaintiff’s petition, and was expressly and specifically denied in the defendants’ answers, and a direct and clear-cut issue was thereby made. Under such circumstances the director-general of railroads, if dissatisfied with the judgment against him, should have sought a reversal thereof on some other assignment of error.

In this special ground of the motion for a new trial three excerpts from the charge of the court are complained of, but they cover substantially the same subject-matter, and none of them is prejudicial to the defendant, the director-general of railroads, for any reason assigned, and especially when the excerpts are considered in the light of the entire charge and all the facts of the case. The certified copy of the charge of the court comprises fourteen closely typewritten pages, and is a very clear, comprehensive, and fair presentation of the contentions of the parties (with the exception already pointed out) and of the law applicable thereto.

2. There is no substantial merit in either the 5th or 6th special ground of the motion for a new trial. The instructions therein complained of were, in effect, that where it was shown that a person had been injured by the running of the cars of a railroad company, a presumption of negligence against the company arose. These instructions were not erroneous for any reason assigned.

The director-general of railroads, so far as the suit was concerned, was merely a substitute for the railroad company, and, under the law, assumed all of its burdens; and we think it quite clear that under the act of Congress of March 21, 1918 "(40 Stat. ch. 25, § 10, U, S, Comp. Stat. 1918, § 3115 3/4 j), the director-general oi railroads was precluded from making any defense in this case that the railroad company itself could not have made.

The court, in these instructions, did not charge that the presumption would arise against the defendant McGee, but charged merely that it would arise against the railroad company. If the defendant McGee desired a specific instruction that the presumption would not arise against him, he should have presented a timely written request therefor.

Judgment affirmed as to the defendant Hines, director-general of railroads; reversed as to the defendant McGee.

Luke and Bloodworth, JJ., concur.


author: Bloodwortii, J.

text:
    11447.
    Harris v. The State.
    Decided June 15, 1920.
    Indictment for intoxication in public place; from Murray superior court-—-Judge Tarver. February 28, 1920.
    The court charged the jury that if they should find that the defendant appeared in an intoxicated condition at the place named in the indictment, and that the intoxication was caused in the manner prescribed by the statute (that is, by the use of intoxicating wines, beers, liquors, or opiates), and was made manifest in any manner provided by statute (that is, by boisterousness, by indecent condition or acting, or by vulgar, profane, or unbecoming language, or by loud and violent discourse), they should find the defendant guilty. This instruction is complained of in the first special ground of the motion for a new trial, for the reason that '' it is not the law of the case,” and “ it tells the jury, in defining the statute, that 'the use of intoxicating wines/ etc., is sufficient when the law is, the 'excessive use of intoxicating wines/ etc.”
    In the other special ground of the motion for a new trial it is alleged that the province of the jury was invaded and an opinion intimated that the defendant was drunk and intoxicating, by the following instruction of the court: ''It is not necessary that the drunkenness or intoxication should be made manifest in all of the ways which the statute provided, but, if it was made manifest in one of the ways, that would be sufficient.”
   Bloodwortii, J.

The excerpts from the charge of the court complained of in the special grounds of the motion for new trial contain .no reversible error; there is ample evidence to support the verdict, and the judgment is

Affirmed.

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

H. H. Anderson, for plaintiff in error.

Joseph M. Lang, solicitor-general, contra.


text:
    11448.
    Yother v. The State.
    Decided June 15, 1920.
    . Indictment for sale of liquor; from Murray superior court — Judge Tarver. February 28, 1920.

      H. H. Anderson, for plaintiff in error.

      Joseph M. Lang, solicitor-general, contra.
   Broyles, C. J.

There is no merit in the special ground of the motion for a new trial, and the verdict was authorized by the evidence.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11449.
    Currie v. The State.
    Decided June 15, 1920.
    Application for change of venue; from Toombs superior court — Judge Hardeman. March 19, 1920.

      Giles & Sharpe, for plaintiff in error.

      Walter F. Grey, solicitor-general, Lankford & Rogers, contra.
   Luke, J.

On the hearing of the motion to change the venue in this case, wherein the defendant was charged with murder, there was evidence that he could get a fair trial in the county in which it was alleged that he committed the crime, and that he would be in no danger of bodily harm; and, from a careful examination of the record, this court can not say that the judge who heard the evidence and denied the motion abused the discretion with which he is by law charged.

Judgment affirmed.

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


text:
    11466.
    Adams v. The State.
   Luke, J.

The conviction of the defendant in this case was authorized. The charge of the court gave the defendant the benefit of every legal right, and his conviction can not, by this court, be held to have been improper. It was not error, for any reason assigned, to overrule the motion for a new trial.

Decided June 15, 1920.

Conviction of receiving stolen goods; from Bibb superior court — Judge Mathews. March 22, 1920.

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

Charles H. Garrett, solicitor-general, contra.

Judgment affirmed.

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


text:
    11467.
    GEORGE v. THE STATE.
    Decided June 15, 1920.
    The charge of the court as to the effect of possession of stolen goods, as evidence against one indicted for burglary, was not subject to the ex¿ ceptions taken.
    Indictment for burglary; from Bibb superior court — Judge Mathews. March 22, 1920.
    The first extract from the charge of the court, set out in the following decision, is complained of as follows: “The defendant excepts to this charge and says that the possession of stolen property is not sufficient to infer guilt, under the rules of the law in Georgia, but it is only a circumstance going to show guilt, and when the trial judge charged the jury that the possession of stolen property was a circumstance from which the jury could infer guilt, he committed reversible error. This is the rule in the Federal court, but not the rule in the State courts in Georgia.” The second extract from the charge is complained of “for the same reasons,” “ as it was a broad instruction that if the defendant was found in possession of any of the stolen property, he would be guilty. It is a question for the jury to decide whether the defendant is guilty, from all the facts proven in the case.”

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

      Charles H. Garrett, solicitor-general, contra.
   Bloodworth, J.

1. The special grounds of the motion for a new trial complain that the court erred in charging the jury: (1) “’If this defendant was found in the recent possession of any of the goods taken from the house at the time it was burglarized, if it was burglarized, and if that is shown beyond a reasonable doubt, then that is a circumstance the jury may consider, and that is a circumstance from which the jury may infer guilt, and if that recent possession is not explained, if the jury believe that the defendant was in possession of some of the stolen goods taken from the house at the time of the burglary, if there was a burglary, and that possession is not explained by a reasonable explanation, then from that circumstance alone the jury may infer guilt, but it is for the jury to say, after all, whether that circumstance alone, or that circumstance in connection with other circumstances proven in the case, shows that the defendant is guilty, and excludes every other reasonable hypothesis except his guilt.” (2) “ The defendant in this case contends that he did not break and enter the house, that he did not have any of the goods; that he was not in possession of any of the goods. I charge you that before you would be authorized to convict in this case, you must believe he was in possession of some of the goods taken from the house, and you must believe that that circumstance with other circumstances proven in the ease, if you believe that it is proven that he had possession of any of the goods, excludes every reasonable hypothesis except that he is the person that broke and entered the house, if the house was broke and entered as alleged in the indictment.- As I said, this case must be made out beyond a reasonable doubt, and the facts proven must exclude every reasonable hypothesis except the guilt of the accused.” Both excerpts state the law correctly, and the court did not err in giving them in charge. See Davis v. State, 76 Ga. 16; Mangham v. State, 87 Ga. 549 (1), and cases cited on page 551 (13 S. E. 558); Rutland v. State, 90 Ga. 102 (1) (15 S. E. 813); Mosley v. State, 11 Ga. App. 303 (2) (75 S. E. 144).

2. There is ample evidence to support the finding of the jury, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    11474.
    Austin v. The State.
   Broyles, C. J.

1. There is no substantial merit in any of the special grounds of the motion for a new trial.

2. There was some slight evidence which authorized the verdict, and, the finding of the jury having been approved by the judge and no error of law appearing, this court is .without authority to interfere with the discretion of the judge in refusing to grant a new trial.

Decided June 15, 1920.

Indictment for larceny after trust; from Bibb superior court — Judge Mathews. March 22, 1920.

H. F. Rawls, W. J. Grace, for plaintiff in error.

Charles H. Garrett, solicitor-general, contra.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11475.
    Dillard v. The State.
    Decided June 15, 1920.
    Indictment for larceny; from Bibb superior court — Judge Mathews. March 22, 1920.
    The larceny of an automobile was charged in the indictment. It was testified that the car disappeared from its owner’s possession in Bibb county, without his knowledge or consent, and soon after was discovered, with the defendant and an older boy in it, in Barnesville; and that the defendant made conflicting statements as to how they got the car. One of his statements was that they started to Atlanta afoot, and a white men asked them where they were going, and turned the car over to them, telling them to take it and go ahead; another statement was that the other boy suggested that they get a car, and later drove up^ in this car, and they got in it and started to Atlanta. As to possession of stolen goods the court charged the jury as follows: “ I charge you that where one of the circumstances proven in the case is that the defendant is in possession of stolen goods, the jury may presume from that fact that the defendant is guilty, unless a reasonable ’explanation, in the opinion of the jury, is shown, as to such possession. Now, if you believe, beyond a reasonable doubt, that this defendant was found in possession of the car, the jury may presume from tliat circumstance alone tbat he is guilty of larceny of the ear, where other proof in the case shows that the ear was stolen. This is not a conclusive presumption, but it is a presumption that may be rebutted. It is for the jury to say when such a conclusive presumption arises, unless it is rebutted. But I charge you, as a matter of law, the jury may presume from that circumstance, if such a circumstance is shown in the case, the jury may presume it and act upon it unless it is rebutted by showing a reasonable explanation as to such possession.” In the motion for a new trial it is alleged that the court erred in so charging, for the reason that the effect of this part of the charge was to instruct the jury that if they found the defendant in possession of the automobile, they might find him guilty on that fact alone; that the charge was not justified by the evidence, which showed that two negroes were in the car when found; that it was error because the jury might find that the defendant was using the car without the owner’s consent and was not guilty of stealing it; and it was error because it put an undue burden on the defendant and took away from the State its duty of proving him guilty beyond a reasonable doubt.
   Luke, J.

The charge of the court upon the question of recent possession of stolen goods, as complained of, was not erroneous for the reason stated in Cuthbert v. State, 3 Ga. App. 600 (60 S. E. 322). See Jackson v. State, 25 Ga. App. 16 (102 S. E. 373). The charge of the court was full and fair, and the’evidence amply authorized, if indeed it did not almost demand, the conviction of the defendant. It was not error to overrule the motion for a new trial.

Judgment affirmed.

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

H. F. Rawls, for plaintiff in error.

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


text:
    11476.
    Jones v. The State.
   Bloodworth, J.

“In tlie absence of a timely written request the failure to charge upon the credibility of witnesses, the mode of impeachment, or the weight that should be given to the testimony of witnesses successfully impeached, will not be reversible error.” Smith v. State, 7 Ga. App. 710 (2) (67 S. E. 1048).

“When an exception is taken to alleged improper remarks of the solicitor-general in the argument of the case, and the court qualifies it by the statement that he did not hear the remarks, and, therefore, cannot say whether the ground is true or not, this leaves the ground unapproved and prevents its consideration by this court.” Lewis v. State, 7 Ga. App. 56 (65 S. E. 1072).

“ Improper remarks by the solicitor-general, unrebuked by the judge, will not work a reversal of the judgment in this case, as no objection was made and no ruling of the court invoked.” Herndon v. State, 111 Ga. 178 (3), 181 (3) (36 S. E. 634, 635), and cit. The principles announced above are applicable to the second special ground of the amendment to the motion for a new trial.

Decided June 15, 1920.

Accusation of sale of intoxicating liquor; from city court of Oglethorpe — Judge Greer. March 3, 1920.

Gilbert C. Robinson, for plaintiff in error.

John B. Guerry, solicitor, contra.

The evidence supports the verdict.

Judgment affirmed.

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


author: Broyles, P. J.

text:
    11482.
    McKINNEY v. THE STATE.
    Decided June 15, 1920.
    In view of the improper remark of the solicitor-general in the hearing of the jury, in a colloquy with the defendant’s counsel, in which, referring to a witness for the State who afterwards gave testimony favorable to the defendant, he said that he was not going to depend upon her testimony, that she was “not going to swear the truth,” which statement was immediately objected to by the defendant’s counsel and was the ground of a motion for a mistrial, made after the jury had retired to consider the case, the trial' judge should have declared a mistrial or should have recalled the jury and instructed them not to consider the remark; and his failure to do so is ground for a new trial. It was not sufficient that the judge, in response to the objection made at the time of the remark, said to the defendant’s counsel, in the presence and hearing of the jury, “ Well, the jury will not be influenced by any remarks between the solicitor and counsel and the court on questions, of evidence.”
    Conviction of shooting at another; from Fulton superior court — Judge Humphries. April 3, 1920.

      B. H. & Harvey Hill, for plaintiff in error.

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

The defendant was being tried for shooting his wife with intent to murder her. The solicitor-general put up the wife, who testified that the shooting was an accident. Before introducing the witness, however, the solicitor-general, in a colloquy with the defendant’s counsel, in the presence and hearing of the jury, stated: “Pm not going to depend upon the testimony of the wife; she’s not going to swear the truth about it.” Counsel for the defendant objected to this statement, whereupon the court, addressing defendant’s counsel, said: “Well, the jury will not be influenced by any-remarks between the solicitor and counsel and the court on questions of evidence.” Subsequently, after argument of counsel and after the court had charged the jury and while the jury were considering the ease, counsel for the defendant moved for a mistrial because of the solicitor-general’s remark. This motion was overruled. The jury returned a verdict finding the defendant guilty of shooting at another.

Under the circumstances stated, the court should either have declared a mistrial of the case, or have recalled the jury and expressly instructed them not to consider the improper' remarks of the solicitor-general, and the failure so to do necessitates another trial of the case.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    11490.
    Duggar et al. v. The State.
    Decided June 15, 1920.
    Indictment for manufacture of liquor; from Murray superior court — Judge Tarver. March 13, 1930.

      H. H. Anderson, for plaintiffs in error.

      J. M. Lang, solicitor-general, contra.
   Broyles, C. J.

The excerpt from the charge of the court complained of, when considered in connection with the. entire charge, contains no harmful error, and the verdict was amply authorized by the evidence.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.