author: Russell, J. Powell, J.,

text:
    700.
    FULLER v. THE STATE.
    1. To authorize a conviction of a violation of the labor-contract act of 1903 (Acts of 1903, p. 90), the evidence must show an intent to defraud on the part of the accused, and loss on the part of the person alleged-to have been cheated and swindled.
    2. Testimony on the part of a witness that a certain payment was an advance is not competent evidence of that fact. It is the province of the jury to determine, from the facts in connection with the payment, the state of the employee’s account with his employer, and whether the payment made was an advance, or part' payment of an indebtedness for labor, due by the employer to his servant.
    Accusation of cheating and swindling, from city court of Americas — Judge Crisp. July 19, 1907.
    Submitted October 9,
    Decided October 22, 1907.

      Howell B. Simmons, for plaintiff in error.

      Zach. Childers, solicitor, contra.
   Russell, J.

The defendant may be guilty, but his guilt was not legally established. The burden of establishing his guilt devolves upon the State, and if he be guilty the fact can be shown, as it must be, by sufficient evidence. The evidence, as it appears in the record, not being sufficient to authorize a conviction of the violation of the labor act of 1903, we feel it to be our duty to grant a new trial. The learned trial judge erred in overruling the defendant’s motion for a new trial, for the reason that the verdict, so far as the evidence is concerned, is contrary to law. The only facts shown by the State, as disclosed bjr the record, were that the witness, Jones, paid $108 for Ambrose Fuller, and at the same time made a contract with said Fuller in behalf of his (Jones’) employer, Johnson, by the terms of which contract Fuller was to work twelve months for Johnson. The contract appears in the record, and is as follows:

‘'’Georgia, Sumter county. I, Ambrose Fuller, ’do solemnly swear that I am not under a written contract as emploj'ee, tenant, cr cropper, with any person for the period or any part thereof covered by the contract I am about to make with Mr. R. 17. Johnson. Signature of the affiant: Ambrose Fuller (his x mark). Sworn to and subscribed before me, this 12th day of December, 1906. Signature of attesting officer: G. E. Buchanan, N. P. S. Co., Ga.”

for instance, the note to secure which the mortgage was given ivas not due until January 1, 1908, the employer would have no right whatsoever to apply the wages of the defendant to the payment of the mortgage indebtedness. As the mortgagor was the mother of the defendant, and as, by the very nature of the case, if the defendant’s wages were to be applied to the payment of the $108 mortgage and interest thereon, the result of defendant’s contract ■ would be that he would get nothing himself for his labor during the entire year, and as the court can take judicial knowledge of the fact that food and clothing are necessary and ordinarily must be bought by those who use them,- the contract, if thus construed, in the absence of any proof of the contents of the mortgage, would evidence a system of peonage, which this court is now asked to uphold.

Taking the case as-we find it, the evidence shows that the defendant had worked nearly four months for the prosecutor upon the contract; and the only payment shown by the State and called an “advance” is the sum of $2. To make a ease which would authorize the jury to infer fraudulent intent, the State should have shown that the $10 a month for the time which had elapsed had been paid to the defendant, and that when he obtained the $2 he became thereby indebted just that amount, or some other amount which he had not repaid, either by working on his contract or by returning the money, and that thereby his employer had sustained a loss either of the $2 or some portion of it. There is no legal evidence showing that the defendant ever received anything from his employer except the $2, and all of the evidence is clear that he worked in pursuance of his contract from December 12, 1906, to . April 9, 1907. It is true that the prosecutor testified that this ’ $2 was an advance. It is insisted that the word “advance” necessarily means a payment of money which had not been earned, and, for that reason, that the use of that word by the witness establishes the fact that all pre-existing indebtedness for labor had been paid by the prosecutor to the 'defendant. We hold that such is a reasonable construction of the word “advance;” and yet the use of that word by the witness established nothing for the jury. The jury, instead of being given the facts upon which the witness based his conclusion, and from which they might have drawn an entirely different conclusion, were compelled to adopt a mere opinion of- the witness, which may or may not have been well founded. In our judgment, this opinion volunteered by the witness had no evidential value. If it should hereafter appear, upon the trial which we now order, that the prosecutor had complied with his agreement and had paid the defendant $10 per month for nearly four months during which he had been employed prior to the payment of the $2, and that, therefore, at the time the $2 was paid he owed the defendant nothing, and if it should further appear that the $2 was not repaid and the defendant quit the service of his employer without sufficient cause, the conviction of the’ defendant would be authorized. But if it should appear that the defendant quit the service of his employer with a balance still in his favor for work done, there could be no conviction. And this would be true regardless of the intent of the’ defendant; for the prosecutor would not have sustained any loss by reason of the advance. The pajrment of the wages to which we have alluded might be shown by proof of payment directly to the defendant; or •if it can be established that there was am agreement embodied in the mortgage, or otherwise evidenced in writing as part of the contract, that the wages of the defendant were to be applied to the payment of the indebtedness secured by the mortgage, for the benefit and protection of the mortgagor, and that his wages were thus paid to him by having been so applied that, and that for that reason no part of the wages which had been earned by the defendant 'had been paid at the time the $2 was advanced, and that thereby the prosecutor sustained loss, a conviction can be sustained; but this record does not disclose any of these essential facts. The fact that the employer had taken other security does not in any way illustrate the intention of the accused at the time he procured the advance. This was our ruling in Harwell v. State, ante; and ’ for this reason the learned trial judge well says in his opinion, filed in the record, that “a verdict of guilty of the original advance of ’$108 at the time the contract was made can not be upheld.” And for the further reason that in the Mulkey case the evidence showed that the defendant entered upon a contract and worked more than three months for the prosecutor after that advance was made. It is clear to our minds,'under the evidence, that the $108 in this case was'not, strictly speaking,- an advance upon the contract; because there is' no evidence that the defendant requested the prosecutor to pa}' bis indebtedness, and it is testified that one purpose of making the advancement and securing his mother’s mortgage was to indemnify the witness against loss on a criminal bond which, so far as appears from the evidence, was in no way connected with this case. In the absence of evidence to the contrary, it is to be presumed that the mortgagee had security ample for the dual purpose. In the absence of express direction to apply the defendant’s wages as a credit upon the $108 debt, the defendant would have the right each month, before the maturity of the mortgage, to demand payment of his wages; and it is only in ease there was such express direction that the prosecutor would have the right to refuse to pay the defendant his wages, and to apply them upon the debt evidenced by the mortgage. It not being made clearly to appear that the defendant had received any advance at the time that he quit the service of his employer, nor that the employer was defrauded or sustained any loss, a new trial is ordered. Judgment reversed.

Powell, J.,

dissenting. There is not the slightest disagreement among the members of this court as to the proposition that the act of 1903 is designed purely for the punishment of frauds, and that it is not to be perverted into an instrumentality of oppression or a. harsh remedy for the collection of debts. Yet the act, legally construed and fairly' applied, has a beneficial and useful purpose to subserve. As to the $108 advanced by the prosecutor before the labor began, it is plain that no legal conviction, can be based on it, under the circumstances of the present case. The defendant’s desertion of his contract of labor is too remote in point of time and circumstance to be evidentiary of any fraudulent intent at .the time that payment was made by the prosecutor; and in his opinion filed in the record the trial judge recognizes this to be true. See Mulkey v. State, 1 Ga. App. 521 (57 S. E. 1022). My brethren of this bench agree with me in the proposition that, if the $2 paid, to the defendant on the Saturday night before he left the prosecutor was in fact an advance under the contract, the defendant’s leaving without good excuse and without repaying the $2 might be evidentiary of an intent to cheat the prosecutor out of that sum, upon which theory the conviction could be sustained. But my colleagues say that there is no proof that this $2 was in fact an advance; and here comes the point of oui disagreement and my dissent. In the first place the prosecutor testified in direct terms that the $2 was “advanced” to the defendant. My fellows say that this' has no sufficient probative value, because it merely states a legal conclusion without giving the facts on which it is based. To my mind, not so. The use of a word which ex vi termini connotes a number of individual facts that in their sum total go to make up the meaning of the word (as, in the present case, the word “advance” contains in itself the idea of a sum of money paid, not .for services rendered in the past, but to be rendered in the future) does not render the statement of the witness opinionative, any more than it would be opinionative of him to express the same idea by the circumlocution of many words. When the witness says “I advanced to him two dollars,” it means no more and no less than if he had said “I gave him two dollars, not for work already performed, but for work to be performed by him in the future.” However, I may waive this point, for I think the record otherwise discloses that this $2 was an advance in the true sense of the word. On December 12, 1906, when the contract was made, the prosecutor paid for the defendant the $108. This payment, by the direct, undisputed testimony, was paid “on the contract.” This was sufficient to pay all the monthly payments due by the promisor under the contract for a period extending far beyond the time when the defendant left his employment;-so that whatever sum was paid to the defendant at the time he left and before this $108 had been worked out was necessarily an advance. My colleagues, to avoid the effect of this, say that this $108 was secured by a mortgage given by the defendant’s mother on her house and lot; ,and this fact does appear in the record. They say that the date of the maturity of this mortgage does not appear. So; but if necessary, as to this date a jjresumption should be indulged which would uphold the verdict, not one which would defeat it. This, however, is unnecessary, for the maturity of this mortgage is wholly immaterial. Take the supposititious case proposed by my colleagues, that the mortgage, given by the mother to secure the performance of the son’s contract to repay the $108 by his labor, does not become due until January 1, 1908; would this alter the case? The mother’s mortgage is only a collateral undertaking; and while the prosecutor could not proceed against her until the mortgage actually matures, this fact in no wise impairs the terms of the contract between him and the defendant. Indeed, if that mortgage had been made dire one day after date, still under the law, it having been given merely as security for the defendant’s contract, it could not be foreclosed until the defendant had broken the main contract. An elemental principle of the law of surety-ship compelled the prosecutor to credit the defendant’s labor to the extinguishment of the debt for which the mother, through the mortgage, stood security. Every dollar the prosecutor paid to the defendant on his wages, the $108 not being first repaid, pro tanto released the surety and the mortgage. Underwood v. Bass, 1 Ga. App. 623 (57 S. E. 953), and cases cited. In the majority opinion in the present case it is said: “If it can be established that there was an agreement embodied in the mortgage, or otherwise evidenced in writing as part of the contract, that the wages of the defendant were to be applied to the payment of the indebtedness secured by the mortgage, for the benefit and protection of the mortgagor, and that his wages were thus paid to him by having been so applied, and that for that reason no part of the wages which had been earned by the defendant had been paid at the time the $2 was advanced, and that thereby the prosecutor sustained loss, a conviction can be sustained; but this record does not disclose any of these essential facts.” The obvious reply is that the law itself embodies into the transaction this duty of applying the defendant’s wages to the reduction of the sum already paid him, and secured by his surety’s mortgage, and all courts are required to notice judicially the legal effects growing out of transactions. That which is judicially recognized need not be proved.

Having paid the defendant $108 at the inception of the contract, the prosecutor owed the defendant nothing else thereunder until the ten months and twenty-four days expired, — for the wages were at the rate of $10 per month. Anything else paid him in the meantime was an advance. The question then stands out, “How is the laborer to support himself in the meantime ?” “Aye, there’s the rub!” If the defendant had left the prosecutor because the contract he had made was so hard that he could not live up to it in reasonableness and the prosecutor had refused to ameliorate the hardship by making advances or otherwise, the excuse for quitting would have been a good one and the defendant would have been exempt from criminality. But he presents no such excuse. in fact the prosecutor s wears that pending the employment he made-advances. Taking advantage of this liberality of his employer in advancing him money beyond what the letter of the contract, required, the defendant obtained the two dollars on Saturday night; on Monday morning he was absent from his post of duty, and thereafter came no more, — tp employ the colloquial phrase, he had "skipped out.” I think the verdict of guilty should stand.


source: Caselaw Access Project

author: Russell, J.

license: Public Domain

text:
    729.
    GLAZE v. THE STATE.
    1. In a criminal case, where the guilt or innocence of the defendant is; wholly dependent upon circumstantial evidence, the jury should be instructed, without request, that his guilt must be sliown to the exclusion of every other reasonable hypothesis.
    2. The controlling issue in a case must not only be submitted to the jury with such appropriate instructions as will call their attention to the-existence of such issue, but the charge of the court must further contain such clear, apt, and definite exposition of the specific principles-of law applicable to the case as will enable the jury to deal with the-real issue in the case and to properly decide it. And this is true-whether a specific request be made or not.
    3. Where there is only one defense on which a party relies, failure to instruct the jury as to this defense so specifically that the jury will not-only be required to pass upon it, but will be able to do so intelligently, under pertinent rules of law and evidence, practically withdraws that defense, and is, in effect, tantamount to directing a verdict.
    Accusation of larceny -from house, from city court of Americus —Judge Crisp. July 18, 1907.
    Submitted October 9,
    Decided October 22, 1907.

      Shipp & Sheppard, J. A. Hixon, for plaintiff in error.

      Zach. Childers, solicitor, contra.
   Russell, J.

Plaintiff in error was convicted of the offense of larceny from the house. The evidence showed, that Glaze went-into the store of A. E. Luke, in the presence of a clerk and of a, customer who was at that time being waited upon by the clerk, and that he claimed to want to buy a gun. The clerk was busy waiting on the other customer, and Glaze, while in plain view of the clerk, went to the gun-rack and took down the gun alleged to have been stolen, and began to examine it, simultaneously speaking to the clerk, who was also the brother of the prosecutor. The clerk was at that time cutting off a piece of meat for his customer, and only ten or fifteen feet from the defendant. The clerk, the customer, and the defendant were the only persons in the store. Before the clerk finished waiting on the other customer, a noise was heard on the outside, and a buggy passed. The defendant started out hurriedly, carrying the gun with him, and the clerk called to him to “put down that gun.” The buggy which was passing was the buggy of the defendant, which he had previously refused to lend to one of the persons whom he found in the buggy and who was driving away. When the clerk called out “put down that gun,” the defendant immediately dropped it, or, as he claims, stood it against the store, immediately outside the store door, and ran on and took possession of his buggy, which was being rapidly driven off by the persons in it. There was practically but little difference between the State and the defendant as to any of the material facts. The defendant claimed that he set the gun down and pursued the parties who were attempting to carry off his buggy. The State insisted that the defendant ran off with the gun, and that he dropped it only" because his theft was discovered. The prosecutor immediately pursued the defendant, and overtook him before he had succeeded in overtaking his buggy; and when the prosecutor seized the defendant, the latter jerked loose, saying he had done nothing, and continued running until he overtook his buggy. It is not necessary to consider the evidence, however, as to the pursuit of the defendant, because his conduct would be just as consistent with the theory that he was trying to overtake his buggy, if he were innocent, as that he was trying to escape, if he were guilty; for he was well known both to the prosecutor and to his brother, the clerk in the store. The only question in the case, therefore, which the jury had to determine was, whether at the time that the defendant went out of the store he had the intention of stealing the gun, or, having only the intention of getting possession of his buggy, he thoughtlessly took the jaiu with him without any intention of converting it to his own use. The question o£ the defendant’s intention is the only question in the case. It is the paramount, — the only issue.

The accusation alleged, that “Alex. Glaze on the 20th day of October, in the year 1900, . . did . . , unlawfully and with force and arms, the house, to wit the storehouse, of E. A. Luke, in said county situate, enter, and, haying entered, one double-barrel, breech-loading shotgun, of the personal goods of E. A. Luke, in said house then and there being found, of the value of $15, did wrongfully, fraudulently, and privately take therefrom and carry away, with intent to steal the same.” The accusation is good, under either §178 or §182 of the Penal Code.' As the offense is denominated “misdemeanor,” it was perhaps intended to be brought under §182. But, whether brought under §178 or §182, there is no allegation that the defendant entered the storehouse with intent to steal. “Larceny from the house is the breaking or entering any house with the intent to steal, or after'breaking or entering said house, stealing therefrom anything of value.” Penal Code, §178. Under the statute the offense can be committed in four different ways. It may consist in breaking a house with intent to steal (provided the offense is not burglary); entering any house with intent to steal; breaking a house and stealing therefrom, where it can be accomplished without entry; or entering and stealing. The offense can be stated, therefore, in more than one way in the accusation, but in this accusation only one method is charged, to wit, that the defendant, after entering the house, carried away the gun with intent to steal it. And if the offense be based 'upon § 182, the same thing is true; for the State’s case as set out in the bill of indictment limited the charge to entering the store and stealing therefrom. Section 182 defines two classes of larceny from the house, and .distinguishes them. It says: “Any person breaking and entering any house or building (other than a dwelling-house or its appurtenances) with intent to steal, but who is detected and prevented from carrying such intent into effect;” this is the first class. It is directed against those who break* and enter a certain class of houses with intent to steal, but are detected before they succeed in stealing any of the articles therein contained. The section then proceeds in the following language: “and any person breaking or entering any such house or building, and stealing therefrom any money, goods, chattels, wares or merchandise, or any other thing or article of value, shall be guilty'of a misdemeanor.” Of course this second division of the section is itself subdivided into thefts, where there is a breaking and entering in order to accomplish the theft, and where there is no breaking but merely an entrance into the building and a theft is accomplished. But in both cases a theft must actually be committed. TJnder the first portion of §182, as in the first clause of §178, where a house other than a dwelling-house and its appurtenances is broken and entered with intent to steal, and the offender is detected, he is guilty of larceny from the house, though nothing be taken.

Whether the accusation, therefore, be construed as based upon §178, or upon §182 of the Penal Code, the State relied for conviction solely upon proof that the defendant, after having entered the store, formed the intent to steal; and upon the sole .charge that the gun was carried away with the intent to steal the same. The distance of the asportation would make no difference, if the defendant in carrying away the gun intended to steal it. That he dropped the gun instead of carrying it with him would afford him no excuse or defense, if, before he dropped it, he had intended to steal it. The intention of the defendant, therefore, becomes a matter of paramount importance to be considered by the jury. If the jury should find that he carried the gun out of the store with the intent to steal it, he would be guilty. If, on the contrary, the evidence does not establish this fact, the defendant should be acquitted. The intention is always a material element in the offense of larceny; in this case it is especially material, in view of the fact that the taking was admitted, and the defendant’s only defense' was that there was no intention to steal it. The defendant’s complaint is that not only was his defense practically withdrawn from the jury by the charge of the court, but further, that the jury should have been fully instructed upon the law on the subject of intent, so as to enable them intelligently to weigh and consider the testimony in the ease. It is also insisted by the plaintiff in error that the verdict is contrary to the evidence. The plaintiff in error insists that the court should have charged the jury the law relative to circumstantial evidence, as applicable to the circumstances of the ease and to the intention of the defendant .at the time qf the taking. In his motion for new trial the defendant further contends that there was no issue b'etween the State and the defendant as to the taking or the manner of the taking, the only contested issue being as to the intention of the defendant at the time of the taking; and, the court having failed to charge the jury with reference to intention in this connection, this was a failure to charge the law touching the material issue involved in the ease. The trial judge, in his charge, made no reference to the subject of intention, other than by quoting §178 of the Penal Code and giving the following explanatory instruction: “Now,, gentlemen of the jury, if you are satisfied beyond a reasonable doubt that Alex. Glaze, in Sumter county, at the time alleged in the accusation, wrongfully, fraudulently, and privately took and carried away from.the storehouse of E. A. Luke one double-barrel breech-loading shotgun, the property of E. A. Luke, and the gun liad any value, with the intent to steal the same, he would have violated the law, and you should find him guilty of the offense charged. On the contrary, if you do not believe this, or if you. have reasonable doubt of it, he would not be guilty, and you should acquit him.” We think the complaint of the plaintiff in error is well founded. „ The charge of the court is correct as far as it goes, but it does not go far enough. The jury should have been instructed that the intention of the defendant in taking the gum was the .matter especially to be considered by them and (in view of the fact that this could be shown only by circumstantial evidence) the jury should further have been instructed that where the guilt of the defendant was dependent entirely upon circumstantial evidence, the guilt of the accused must be shown to the exclusion of every other reasonable hypothesis. Riley v. State, 1 Ga. App. 651 (57 S. E. 1031). There was only one material issue in the case, to wit, whether there was an intent to steal the gun, existing in the mind of the defendant at the time that he carried it away. This issue was not dependent upon the defendant’s statement for its existence. It necessarily arose, regardless of the statement,, from the ’other evidence in the case, and the jury should have been more fully instructed with reference to this issue than by mere reference to the intent in the language of the statute. It is not. only error to submit to the jury an issue which has no foundation in the evidence, or give instructions which are not applicable to the evidence, or to t present a contention which is not" urged by the party. It seems to have been uniformly held by “the Supreme' Court that the omission to submit the controlling -issue in the case to the jury was such an error as demanded the grant of a new trial. And such issue must be submitted with such appropriate instructions as will not only call the attention of the jury to the existence of the issue, but the charge of the court must contain such clear, apt, and definite exposition of the specific principles of law applicable to the case as will enable the jury to deal with the real issue in the case and properly to decide it. And this is true whether a specific request be made or not. Where there is only one defense on which a party relies, to fail to instruct the jurjr as to this defense so specifically that the jury will be not only required to pass upon it, but will be able to do so intelligently under pertinent rules of law and evidence, virtually withdraws that defense, and is, in effect, to direct a verdict. When the only real contention in a case is only mentioned en passant, and then dismissed, as it were, with a wave of the hand, it is worse than ignored. To use the language of Justice Lumpkin in Smith v. State, 109 Ga. 485 (35 S. E. 61), the defense is “chilled by judicial oversight or blighted by implied judicial disapproval.” In Chattanooga & Durham R. Co. v. Voils, 113 Ga. 362 (38 S. E. 819), the Supreme Court granted a new trial solely upon the ground that the judge did not submit to the jury the main defense relied upon by the defendant. The court says, that “where the company relies mainly upon one defense and introduces evidence to sustain it [and the same thing would be true if the evidence introduced bjr the opposite party sustains it], it is error, demanding a new trial, for the judge to omit to call the attention of the jury to this defense. This is true whether or not he is requested by counsel to do so. Unless the judge charges upon such defense, and thereby calls the attention of the jury to it, the cáse is not properly tried.” It is true that the Voils case was a civil suit; but unless the right of personal liberty is inferior to the right of property, the same rule must govern in a case wherein a citizen is charged with crime, especially where the defense is not dependent alone upon the statement of the defendant.

In Central R. R. v. Harris, 76 Ga. 509, the point was made that a plaintiff in error could not use the same exception as that nov^ insisted upon in the present case, because “he did not call the attention of the court [below] to the omission of which he now complains;” but Chief Justice Jackson, reviewing all of the former decisions of the Supreme Court on the subject, says, “the eases cited, and the principle on which they rest, do not apply to the clear omission to’notice in the charge a plain defense of the company arising ont of [the] evidence so as not to escape the observation, of the judge. . . The courts will not allow a party to lie in wait for the judge when he charges substantially the law covering the case, and then object to the insufficiency of a portion of it; but in every ease, the law of it must be given in substance to the jury, because if it is not given, the general verdict they give is not upon the law of the case, but on facts without instructions on the law of the case. The ship is at sea without chart or pilot, and can never reach the port to which it is bound without their guidance. The verdict can never be a legal verdict unless instructions on the law of the case be given by him who presides for that purpose.” See also citations in that decision, p. 511. The judgment was reversed, as expressly stated, solely because the charge ignored the defense set up by the defendant.

In view of the fact, as it appears from the record, that the defendant had not, and could not have, any-other defense than that his taking (which was admitted) was not with intent to steal, we think that an instruction to the jury to the effect, first, that they should consider what was the intention at the time that he took the gun and carried it out of the store; and that, secondly, unless the jury were satisfied, to tire exclusion of every other reasonable hj'pothesis or supposition, that when the defendant took the gun, if he took it, he intended to steal it, they should acquit him, was demanded, even without request.

In Horton v. State, 120 Ga. 307 (47 S. E. 969), it was held that the defendant was entitled to a charge on the subject of manslaughter, and the judgment was reversed because of the failure to charge therein, although his counsel (so far from requesting that the law of manslaughter be charged) actually insisted at' the trial that there was “no manslaughter in the case.” Our opinion is further confirmed by the rulings in Phenix Mfg. Co. v. Hart, 112 Ga. 765 (38 S. E. 67); Seymour v. State, 102 Ga. 806 (30 S. E. 263); Mays v. Shields, 117 Ga. 817 (45 S. E. 68); Whelchel v. Electric Ry. Co., 116 Ga. 431 (3) (42 S. E. 776); Whedon v. Knight, 112 Ga. 642-3 (37 S. E. 972). The publicity of the taking, the delay of more than two months in beginning the prosecution, and the admission of the prosecutor that-negotiations were meanwhile being carried on with reference to the payment of an indebtedness of $150, due him by a brother-in-law of the defendant, as well as the undisputed fact that one of the main witnesses for the State had settled with the prosecutor for a stolen gun and had never Leen prosecuted for the theft, render us the less' reluctant to order a new trial, in which the guilt of this defendant, if he be guilty, can be established beyond legal question.

Judgment reversed.


author: Hill, C. J.

text:
    733.
    BONNER v. THE STATE.
    1. On a trial for the unlawful sale of spirituous liquors, evidence that the accused had on several occasions received packages or boxes through the express office, with physical marks thereon indicating that they contained whisky, is relevant and admissible.
    2. The charge of the court upon which error was assigned was objectionable for the reasons stated in the opinion.
    S. A verdict wholly unsupported by any evidence must be set aside as contrary to law.
    Accusation of selling liquor, from Early superior court—Judge Worrill. July 27, 1907.
    Submitted October 9,
    Decided October 22, 1907.

      Parle & Collins, for plaintiff in error.

      J. A. Laing, solicitor-general, R. R. Arnold, J. B. Bidley, contra.
   Hill, C. J.

Davis Bonner was- convicted of the offense of selling whisky in Early county, where the sale of spirituous liquors is prohibited by law. His motion for a new trial being overruled, he brings the pase to this court. Error is assigned upon the ruling of the court in admitting, over the objection of the defendant, the following testimony: that on (Several occasions packages or boxes had come through the express office, addressed to Davis Bonner, and, on looking through the cracks of the boxes, bottles were seen that looked like they might be quarts of whisky; that on two different occasions the defendant, Davis Bonner, had carried from the express office two large boxes weighing about sixty pounds, having printed thereon “seventy-two half pints,” “White Oak Whisky,” “Chattanooga.” We think the testimony was admissible, as against the objection that it was irrelevant and immaterial. While it was not a violation of law to purchase whisky outside of the county and ship it thereto, yet, where the defendant was charged with selling whisky in the county in viola-lion of the statute, evidence that he was receiving whisky was a relevant fact in connection with the charge. Considered alone, of course, it would not be sufficient, and would have to be supplemented by evidence showing that a sale had been consummated in the county by the defendant.

The following charge we think is justly assigned as error: “If you believe, gentlemen of the jury, that the defendant, Davis Bonner,- received of Dock Knight money, and went off, and in a short time returned and furnished Dock Knight with whisky, that would make him guilty, unless he has given the jury satisfactory information as 'to how he got the whisky and that his connection therewith was lawful.” We think that these facts would be evidence of a more or less probative value, to be determined by the jury; but the charge that these facts “would make him guilty,” even if unexplained by him, expresses too strongly the inference arising from the facts. This charge leaves out of consideration entirely that the money must have been given to the defendant by Dock Knight for the purpose of buying whisky which he subsequently delivered to him. The case relied upon by the solicitor-general in support of this charge is Billups v. State, 107 Ga. 766 (33 S. E. 659). In that case, the Supreme Court said, in substance, that if the State proved by a witness that he had given the accused money with which to. buy whisky, and that the ac-•c-used was absent about half an hour, and when he returned he brought back a bottle of whisky and delivered it to the witness, this made out a prima facie case for the State; but the important .fact that the money must have been given by the witness to the accused for the purpose of buying whisky is entirely omitted from the charge complained of.

The most serious objection to this verdict, however, is that there is no evidence in the record which in any measure gives it support. The only fact proved by the State was that a witness had given the accused 'twenty-five cents for the purpose of going to the express office and getting a package of whisky for him, paying the express charge thereon with the twenty-five cents, and that subsequently the party who gave-'the twenty-five cents to the accused for this purpose went to the house of the - accused and got this whisky. The witness who testified to .this fact was introduced by • the-State? and,his testimony-.is as follows: ' “I saw Davis Bonner •clown about the store of Bob ICnigbt, and handed him a quarter ■and told him to go down to the express office and get me a package of whisky; and that day, when I started hunting, I went by Davis Bonner’s house and he handed it to me, that is, the bottle of whisky. I never paid Davis Bonner for the whisky, but I bought it myself from the Albany Whisky House, in Albany, Ga. Davis Bonner never sold it to me, but I gave him a quarter to go to the express office and get it for me and pay the express on it.” Another witness for the State testified that he saw the witness who had testified about giving the twenty-five cents to the accused go into the house of the accused when he started out hunting, and come back with a bottle of whisky. This is all the testimony in the record, except that mentioned in the first part of this opinion, — that the accused had received express boxes at the express office indicating that they contained whisky, — and it is clearly insufficient to prove the defendant’s guilt. The verdict is therefore set aside and a new trial ordered. Judgment reversed.


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    734.
    FOUNTAIN v. CITY OF FITZGERALD.
    There was no error in refusing to sanction the petition for certiorari.
    (а) That a charge that the defendant pointed a gun .at another is included as one of the acts constituting the offense of disorderly conduct under a city ordinance does not subject such accusation to the objection that an offense of which the State has jurisdiction is charged, and that the municipal court is for that reason without jurisdiction.
    (б) In an affidavit in which it is alleged that the defendant committed the offense of disorderly conduct by fighting, cursing, using profane language, pointing a gun at one Bullard to intimidate said Bullard, and generally conducting himself in a tumultuous, riotous manner on the streets of Fitzgerald, Georgia, the statement that the defendant pointed a gun may properly be included, to authorize proof that the defendant acted in a disorderly manner, without in any way affecting the guilt or innocence of the defendant of the offense of pointing a weapon at another, under the terms of the Renal Code, §343.
    (c) The demurrer to the accusation was also properly overruled for the reason that the language used with reference to pointing the gun was not sufficient to set forth a violation "of the Penal Code, §343, and for that reason could neither create conflict between the authority of the State and the municipal courts, nor put the defendant twice in jeopardy.

      Certiorari, from Ben Hill superior court — Judge Whipple. August 22, 1907.
    Submitted October 9,
    Decided October 22, 1907.

      O. H. Elkins and McDonald & Quincey, for plaintiff in error.

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

The plaintiff in error was found guilty of disorderly conduct, by the mayor of Fitzgerald. He then presented a petition for certiorari to the judge of the superior court, who refused to sanction the petition. The order of the judge, refusing the issuance of the writ of certiorari, is excepted to. The accusation (or rather the affidavit which seems to have taken the place of an accusation) alleged that “Charles Fountain did, on the 3d day of August, 1907, within the limits of the city of Fitzgerald, commit the offense of disorderly conduct, by fighting, cursing, using profane language, pointing a gun at one Bullard, to intimidate said Bullard, and generally conducting himself in a tumultuous, riotous manner on the streets of Fitzgerald, Georgia, contrary to the good order of the said city of Fitzgerald.”. The defendant demurred to the accusation, insisting that the portion charging him with pointing a weapon at said Bullard set forth no offense against the city ordinances, and that the defendant can not be tried for the same by the mayor, nor fined for the same, for that it sets forth an offense against the laws of the State of Georgia; and secondly, that' the allegation that the acts were to intimidate said Bullard constitutes no offense against the city laws. The defendant also moved to strike that part of the accusation which charged Charles Fountain with pointing a gun, upon the ground that the same was a State offense. And that part of the accusation which charged him with conducting himself in a tumultuous and riotous manner he moved to strike, because it was not specific enough to put the defendant on notice of what he was charged with. Both the demurrer and the motion to strike were overruled in the mayor’s court. The evidence in behalf of the city established the charge as laid in the accusation, though some of the acts alleged were contradicted by testimony id. behalf of the defendant.

We find'no error in the judgment of the judge of the superior court in refusing to sanction the certiorari. The errors alleged by the defendant, in his petition for certiorari, are: (1) that the court erred in overruling the motion to strike certain parts of the accusation; (2) that the court erred in overruling the demurrer; (3) that the finding and judgment are contrary to law, contrary to the evidence, and without evidence to support them. The motion to strike and the demurrer may be considered together. Thus considered, three objections were made to the accusation: (1) that the offense was not cognizable by the mayor’s court of Fitzgerald, because it charged an offense against the laws of the State, the city could not proceed against him, and the ordinance would be void; (2) that-the allegation that the acts were to intimidate Bullard constituted no offense against the city laws; (3) that the charge that defendant conducted himself in a tumultuous and riotous manner is not sufficiently specific.

The charge made against the defendant was disorderly conduct, and the reference in the accusation to the pointing of a gun does not charge that as a separate offense, but is merely a part of the description of how the offense of disorderly conduct was committed; nor was there any attempt in the accusation to charge more than the one offense of disorderly conduct. Proof of the same act may supply the basis for a prosecution by both municipal and State authorities, and yet the offense may not be the same. An illustration of this is found in the ordinances of many cities in this State which affix penalties to the keeping of intoxicating liquors for sale, though the only evidence of the violation of the city ordinance — the only proof that the liquor was kept'for sale— ofttimes is testimony showing a sale. It is true that a municipality, without an express and specific legislative grant of authority, can not deal with any criminal offense which is the subject-matter of the penal statutes of the State. But while a municipal court could not try A. B. for murder, it could try A. B. for disorderly conduct in murdering C. D., if, in murdering C. D., A. B. disturbed the public peace and tranquility. A safe test to apply is whether the language of the municipal ordinance and that of the accusation drawn in pursuance thereof contain the same essentials for the creation of a criminal act as the penal statutes of the State. Judged by this standard the statement that the defendant pointed a gun at Bullard to intimidate him would hot sufficiently charge the offense defined in the Penal Code, §343. The fact that a charge that a defendant pointed a gun at another is included, as one of the acts committed by the defendant, which, considered together, constituted the offense of disorderly conduct under the terms of a city ordinance, will not subject the accusation for disorderly conduct to the objection that an offense against the State, of which the municipal court has no jurisdiction, has been charged.

Nor is there any merit in the second ground of the demurrrer, when considered (as it must be for the purposes of the demurrer) in connection with the accusation. Whether a gun or a stick was used, the intimidation of a citizen, in the joeace of the State, by the defendant would properly come within the definition of disorderly conduct. And it is only in the description of the acts constituting the disorderly conduct on the part of the defendant that the language employed is used. The same may be stated of the objection that the accusation that the defendant acted in a tumultuous and riotous manner is not sufficiently specific. Even if it is not specific enough to authorize conviction when considered alone, it is immaterial when considered in connection with the other descriptive averments of the defendant’s alleged disorderly conduct; and therefore the error, if any, in failing to strike it would be immaterial and harmless.

It is insisted that there was no proof of a proper ordinance of the City of Fitzgerald on the subject of disorderly conduct.- If there was no such ordinance it would devolve upon the defendant to show that fact. In Chambers v. Barnesville, 89 Ga. 739 (15 S. E. 634), it was held: “There being no ordinance in the record, and no complaint that a sufficient ordinance, if the mayor and council had power to pass it, did not exist, the court will presume that such ordinance did exist.” When it was alleged that the defendant committed the offense of disorderly conduct, in the absence of proof to the contrary the court would presume the passage of a legal ordinance defining, forbidding, and punishing disorderly conduct; and, in connection with the other statements in the accusation, the averment that the defendant pointed a gun, as has already been stated, may properly be included, to authorize proof that the defendant acted in a disorderly manner, without in any way affecting the guilt or innocence of the defendant of the offense of pointing a weapon at another, in the terms of the Penal Code, §343. In the present ease, under the accusation now under consideration, the proof would be limited to whether the defendant pointed a gun at Bullard, and to whether such pointing was for the purpose of intimidating Bullard, and whether such intimidation was, under the circumstances, disorderly conduct. As already intimated, however, the allegation with reference to the gun, contained in this accusation, falls far short of what would be required to be stated in an indictment against the defendant, for pointing a weapon at another in the terms of the Penal Code, §343. For that reason the accusation in the city court could neither create a conflict between the authorities of the State and the municipal courts, nor put the defendant twice in jeopardy.

It was insisted that the finding of the mlayor was contrary to thé evidence; and two points were urged. It was insisted, in the first place, that there was failure to prove the venue. Though not personally fully concurring in the strictness of the Supreme Court upon the subject of venue, as evidenced in the Gosha case, 56 Ga. 36, the Futch case, 90 Ga. 472 (16 S. E. 102), the Cooper case, 106 Ga. 119 (32 S. E. 23), and various other cases which might be cited, this court has, more than once, followed these decisions, as we are bound to do, in all their strictness; and if this were a case in which it were necessary to prove that the offense was committed in a definite county, in order to give the court jurisdiction, we would be bound by the decisions before cited, and especially the Cooper case. But inasmuch as the mayor’s court of the City of Fitzgerald is confined, as to its jurisdiction, to the limits of the city, and the testimony of one of the witnesses establishes unequivocally the fact that the defendant was at a certain place “in this city on the corner of Pine, and Sherman streets,” there is no trouble whatever about the venue. It is true that the witness and the father of the defendant went a few feet away to hold a conference; and, as held in the Gosha case, supra, this might leave the inference that they even in that short distance went outside of the city limits. But the defendant, who, according to the-testimony, was talking and cursing in a loud tone of voice, and attempting, apparently, to get an excuse to shoot the witness, did not move from the spot which was fixed in the testimony as being in the city of Fitzgerald.

The point is also made that the testimony described the date of tbe offense as August 3, without fixing the year. The language employed by the witness, as all other language, should be given a reasonable intendment. No point was made before the lower court that the evidence showed that the offense, if any, was barred by the statute of limitations, or that it was committed after the accusation. The warrant was sworn out the 5th of August, 1907. From all of the evidence it appears that the transaction was recent; that the difficulty started the previous Saturday afternoon, about some costs due for the arrest of a negro. It was plain, from the testimony, that the origin of the difficulty was in 1907; and consequently no other inference can be entertained than that when the difficulty itself was testified to have occurred on August 3, it meant August 3, 1907. Judgment affirmed.


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    144.
    Eady v. Atlantic Coast Line Railroad Company.
    Action for damages, from city court of Sylvester — Judge Park. July 7, 1906.
    Argued February 26,
    Decided October 29, 1907.

      Joseph H. Hall, Warren Roberts, Polhill & Williamson, for plaintiff. W. E. Kay, Bennet & Conyers, T. R. Perry, J. H. Tipton, for defendant.
   Hill, C. J.

The only question insisted on in this ease having been certified by this court to the Supreme Court, and a decision having been rendered by the latter court adversely to the contention of the plaintiff in error (129 Ga. 363), the judgment is Affirmed.


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    535, 561.
    BETTS-EVANS TRADING COMPANY v. BASS, and vice versa.

    1. Where the controlling question in a ease is presented by a cross-bill of exceptions, and the judgment of the lower court thereon is reversed, the writ of error issued upon the main bill of exceptions will be dismissed. ,
    2. An officer, authorized by law to attest the execution of deeds, mortgages, bills of sale, and other papers is disqualified to attest such ■writings, when executed (whether as conveyances or as security) to a partnership in which he is a partner, or to a corporation in which he is a stockholder. The record of a written instrument, whether the same purports to create a lien, or to convey or to reserve title, which is attested by a stockholder in a corporation in whose interest such writing is executed, is unauthorized and invalid, and effects no notice of the existence or contents of such instrument.
    (a) It was error not to exclude the instrument in question in this case, upon proper and timely objection to its attestation and record.
    Trover, from city court of Ashburn — J. A. Comer, judge pro hac vice. April 19, 1907.
    Argued October 23,
    Decided October 29, 1907.

      R. L. Tipton, J. H. Tipton, for plaintiff.

      A. J. Davis, J. H. Pate, Z. Bass, for defendant.
   Russell, J.

The Betts-Evans Trading Company complained, by a bill of exceptions, of -the judgment of the city court of Ashburn awarding a nonsuit; and Bass, the defendant in the. court below, filed his cross-bill of exceptions. The Betts-Evans Trading Company filed, in that court, an action of trover, to recover a sorrel horse to which it claimed title. There was also filed an affidavit for bail. The defendant, in his plea, denied all the allegations of the plaintiff’s petition, except as to the jurisdiction of the court. On the trial the plaintiff offered in evidence a note evidencing a conditional sale with reservation of title by the Betts-Evans Trading Company, attested by J. B. Bozeman, notary public of Worth County, Georgia, and duly recorded. On the instrument in question appeared a credit of $90. In the testimony of the first witness' in behalf of the plaintiff, it appeared that J. B. Bozeman was a stockholder in the plaintiff corporation at the time he attested the note and paper in question. The defendant’s counsel moved to rule the note out of evidence, upon the ground that it was not properly attested, — that the testimony showed that at the time of the attestation Bozeman was a stockholder in the Betts-Evans Trading Company; and the note, not being properly attested, was not admissible as against the interest of the defendant. This motion the court overruled. The plaintiff proceeded to introduce testimony to show that the horse was, at the commencement of the action, in the possession of the defendant; and also proved that the corporation, at the time of the sale of the horse to one Johnson by Smith, the maker of the note, did not agree to release or cancel its reservation of title. At the conclusion of the plaintiff’s evidence the defendant moved for a nonsuit. The court overruled this motion. The motion to grant a nonsuit was upon the ground,, that the defendant, Bass, was manager for the Turner County Stock Company, and the evidence showed that the possession of Turner was as manager for the Turner County Stock Company,, and, for that reason, was its possession, and that the evidence did not show that Bass individually was in possession of the horse. The court allowed the plaintiff to reopen the ease and introduce further testimony, for the purpose of showing Bass’s possession of the horse at the time of the demand. At the conclusion of the additional testimony for the plaintiff, the court awarded the nonsuit, upon the ground, as it appears from the judge’s oral statement in the record, that the possession of the horse was shown to be in the Turner County Stock Company, and not in Bass as an individual.

Plaintiff in error in the main bill of exceptions insists that the court erred in granting a nonsuit, because the title to the property in question was clearly shown to be in the plaintiff in error, and possession of the property was proved to be in the defendant, Bass, and conversion of the property by him .was shown. In the cross-bill, exception is taken to the judgment overruling defendant’s special demurrer to the fourth paragraph of the petition, and to the ruling admitting in evidence the conditional-sale note, and to the refusal of the court to withdraw this note from evidence, for want of proper attestation. We think the court should have sustained the special demurrer, and should have required the plaintiff to state in its petition the date from which it claimed that the defendant was liable for hire. We are further of the opinion that if the plaintiff had proved title in itself and constructive notice of that title to the defendant, and that the horse was in the possession of the defendant, even though such possession was in his capacity as manager of the Turner County Stock Conipany, it would have been error to'award a nonsuit.

The first thing that the plaintiff had to prove was that the Betts-Evans Trading Company had title to the horse in question.. The plaintiff attempted to show this title by the conditional-sale note, and its record. This title was not established in any other manner. The defendant, Bass, moved to rule the note out of evidence i and had the court so ruled, the jdaintiff would not have been entitled to be awarded the possession of the horse. The con» trolling question, therefore, is presented by the cross-bill of exceptions. We think the paper containing the reservation of title in question should have been excluded from the evidence. It was uncontradicted that it was attested only by J. B. Bozeman, as notary public of Worth County, and that Bozeman was, at the time of its attestation, one of the stockholders of the Betts-Evans Trading Company. He was clearly disqualified by interest for the performance of a legal duty of such importance as would entitle to record a paper in which he himself had a direct pecuniary interest. We can see a marked difference between allowing one to be a witness in his own behalf on the trial of a case, where his testimony may be discounted or its weight diminished in consideration of his interest, and allowing such interested party to confer upon his own paper a special privilege, lien, or priority which may be antagonistic to the rights of others. The witness testifies in the bright sunlight of judicial investigation, under the scrutiny of the court and jury, and is subject to cross-examination; but to allow an officer, in private or public, to discharge a function in his own interest, by which special rights accrue to him, is obnoxious to public policy and liable to be productive of fraud. We do not see that a clerk who has no interest conditional iipon the profits might not, as notary public, attest deeds,'mortgages, or conditional bills of sale in behalf of his employer; or that a cashier or other officer of a bank, who. owns no stock therein, might not do the same thing; though this would be of doubtful propriety.

The exact point now presented to us, so far as we are able to find, has not been decided in this State; but, upon every ground of public policy and good morals, we are compelled to hold, that a partner who may be an officer authorized to attest papers officially is disqualified to attest instruments taken in behalf of the partnership, or in which the partnership has a pecuniary interest; and that a stockholder in a corporation, though he may by law be authorized to attest papers for others, is disqualified to attest 'officially, so as to entitle them to record,'any papers in which the corporation, or in which he as a stockholder, has a pecuniary interest. Certainly one authorized by law to attest writings so as to entitle them to record would be disqualified from attesting an instrument drawn in his own interest, either to secure a debt or to convey title to himself. We apprehend that this would not be disputed. And though in case of a partnership or of a .stockholder in a corporation the degree of pecuniary interest would be less, the principle would be unchanged. A party at interest is competent to testify, as a witness, to the fact of the execution of a writing; but there is a difference of great import to the rights of third persons between testifying to the execution of a paper, and the official attestation of such papers as are required by law to be formally attested so as to admit them to record. Official attestation is not strictly judicial, but it is of judicial nature, and requires judicial fidelity. The probative force of the attestation by an officer authorized to attest a deed, mortgage, or other like paper is such that if the paper to be recorded has not been thus attested, it requires the oath of a witness to admit such paper to record; and after record this probative force of the official attestation is again recognized by the courts. Not only because of this probative effect so accorded to the act of attestation by an officer authorized to act, but also on account of the usually important consequences of the writing itself, public policy forbids that the act of witnessing, and by his signature certifying the signature of the maker, shall be exercised by an officer who is financially interested in the conveyance. After such an instrument has been recorded, the execution of the writing by the maker is presumptively established by the attestation, subject to impeachment only by proof to the contrary, or' by evidence of fraud or imposition in the procurement. Certainly a person financially interested should not be permitted to impart such characteristics and intrinsic elements to a paper, to his own benefit and to the detriment of others. Our view is sustained by the following authorities: Ogden Bldg. Assn. v. Mensch, 196 Ill. 554 (63 N. E. 1049, 89 Am. St. R. 330); Hayes v. Southern Home Assn., 124 Ala. 663 (25 So. 527, 82 Am. St. R. 216); Devlin on Deeds, § 476; Smith v. Clark, 100 Iowa, 605 (69 N. W. 1011); Miles v. Kelly, 16 Texas Civ. App. 147 (40 S. W. 599); Amick v. Woodworth, 58 Ohio, 86 (50 N. E. 437); Watts v. El Reno First National Bank, 8 Okla. 645 (58 Pac. 782); 6 Cyc. 1006 (2); Siebold v. Rogers, 110 Ala. 438 (18 So. 312); Donovan v. St. Anthony Elevator Co., 8 N. D. 585 (80 N. W. 772, 46 L. R. A. 721, 73 Am. St. R. 779).

We think, therefore, the court should have excluded the instrument containing the reservation of title to the Betts-Evans Trading Company, upon the objection made by defendant’s counsel. This being true, the plaintiff failed to sustain its case, and there was no error in awarding a nonsuit. As our judgment on the cross-bill of exceptions necessarily effects a final disposition of the case, adverse to the plaintiff in error in the main bill of exceptions, it is needless for us to deal with the questions therein.

Judgment, on the cross-bill of exceptions, reversed; main bill of exceptions dismissed.


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    644.
    TAYLOR v. THE STATE.
    1. There is no material variance between the allegata and the probata, and the allegations of the indictment were sufficiently proved as laid.
    2. The court fully, fairly, and clearly submitted to the jury the issues, and the law applicable thereto. The exceptions to portions of the charge are without merit.
    3. A new trial is granted solely because the trial court violated the spirit of section 4334 of the Civil Code.
    Indictment for larceny after trust, from Worth superior court— Judge Spence. June 15, 1907.
    Argued October 7,
    Decided October 29, 1907.

      Perry & Williamson, Pope & Bennet, J. J. Forehand, for plaintiff in error.

      W. E. Wooten, solicitor-general, J. H. Tipton, contra.
   Hill, C. J.

Taylor was convicted in the superior court of Worth county, on an indictment charging him with the offense of larceny after trust, under the Penal Code, §195. The character and purpose of the trust, and the fraudulent breach thereof, are described in the indictment, in the following language: “Eor that the said Charles L. Taylor did, on the first day of October, 1906, in the county aforesaid, being intrusted by the Virginia-Carolina Chemical Company with .the following described promissory notes, to wit: [Here follows a list of the notes, giving the names of the makers, dates and amounts], all of said notes being due on October 1st, 1906, payable to Charles L. Taylor or order, and by the said Taylor transferred and assigned to said Virginia-Carolina Chemical Company, said notes being intrusted to said defendant, as aforesaid, for the purpose of said defendant collecting the money due on said notes and each of them, and paying the proceeds and moneys collected on said notes and each of them over to the said Virginia-Carolina Chemical Company, he, the said defendant, being intrusted as aforesaid, did collect the- moneys and proceeds on and from said notes and each of them, in the amounts hereinbefore respectively stated, and did then and there wrongfully, fraudulently, and feloniously convert said moneys and proceeds to his, said defendant’s, own use.” In proof of the allegations in the indictment, the State introduced the following evidence, here substantially stated: (1) Agreement between the Chemical Company and the defendant, dated January 16, 1906, stipulating that the company was to furnish from its factories, for sale by Taylor, one hundred tons of fertilizers, with guaranteed analysis and price per ton, to be delivered in car-load lots at the depot at Huggins, Ga., Taylor agreeing to receive all of said fertilizers for sale, and take .the same and pay therefor the prices mentioned in the agreement; that until sold or settled for by Taylor, the fertilizers were to remain the property of the company, “and, when sold, all the proceeds of sale of such fertilizers, including cash, notes, open accounts, and collections therefrom, shall be kept separate and be held by Taylor as a trust fund, and turned over to said company as collateral security and pledge until the entire indebtedness of Taylor to the company, arising under this agreement, has been paid;” that shipments of fertilizers were to be made by the company before May 1, 1906, and payments of all shipments were guaranteed in full to the company, at prices stated; and settlements were to be made on or before May 1, 1906, by cash; or negotiable notes (on the company’s regular form) of Taylor, maturing November 1, 1906, November 15, 1906, and December 1, 1906, each of said notes being payable at the Bank of Tifton, Ga.; that Taylor was to pay over to the company all the cash proceeds of sales made for cash, when sold, and on or before May 1, 1906, was to send to the company a complete list of his time sales, and indorse, if necessary, and surrender to the company all notes received by him from the purchasers of said fertilizers, which notes were to be taken on forms of the company, and to be returned by the company to Taylor, “for the purpose only of collection and remittance to the company, until his debt to it has been fully paid, as aforesaid; and when said notes are so returned to Taylor by the company, they are to be receipted for in trust to the company by Taylor.” (2) Taylor’s three notes provided for in the agreement, payable to the company at the Bank of Tifton, Ga., due November 1, November 15, and December 1, 1906, and indorsed in blank by the company. (3) “Trust receipt,” signed by Taylor, dated August 17, 1906, as follows: “Deceived of Virginia-Carolina Chemical Company, in trust for eol- * lection, for its account, as per terms and conditions of contracts made by - with said company, the following described notes and accounts [describing them], it being -agreed that all money or cotton or other proceeds collected on them will always ■ be held subject to order of Virginia-Carolina Chemical Company, until notes to them are paid in full.” This receipt contains'a list of the notes set forth in the indictment, giving names of the makers of each note, dates, and amounts.» The State also introduced some of the notes described in the indictment, marked “Paid,” and proved by the makers that the proceeds thereof had been paid to the defendant; and also showed, by oral evidence, that many of the notes described in the indictment and trust receipt had been paid by the makers to Taylor. In these latter cases, the paid notes themselves were not introduced in evidence. The State introduced a letter from Taylor to the company, dated December 27, 1906, notifying it that he had been robbed Monday night of $1,373 of money that he had in his possession, belonging to the company. An admission of the defendant, made to the agent of the company who demanded the money collected on the notes, that he had collected the whole amount of the notes, was also proved. The defendant, in his statement to the jury, qualified his admission, by stating that he had collected about $900 due on the notes; and, explaining why he had not sent this amount to the company according to his contract, aside, that he was waiting to collect the full amount, so as to pay in full his three notes held by the company for the fertilizers; that he added to the amount collected, belonging to the company, enough of his own money to make the amount $1,373, and- that this sum was -in his satchel in his store, and the store was broken open and the satchel entered and the whole amount stolen. He introduced some fifteen of the notes which he claimed had hot been collected.. These notes were among, those set. out in the. indictment, and were all made- . payable to the defendant, and were indorsed by him in blank. On tbe merits of the case, it will, therefore, be seen that the defendant admitted on the trial the trust delegated to him by the company, and that he had collected the larger part of the notes intrusted to him, but set up as a defense for his breach of the trust the burglary of his storehouse and the larceny of the money.

The first assignment of error is that the court erred in admitting in evidence the trust receipt signed by the defendant, because said receipt showed a different trust from the one alleged in the indictment. The indictment charged that the notes therein described, and set out in the “trust receipt,” were intrusted to the defendant for the purpose of being collected by him and paying the proceeds so collected to the company; and the “trust receipt” stipulated that the notes were intrusted to the defendant for the purpose of collection, but that “ail money or cotton or other proceeds collected on them will always be held subject to the order of the Virginia-Carolina Chemical Company.” In other words, it was contended that there was a material variance in the allegations that the proceeds of the notes were to be collected and paid over to the company by the defendant, and the recitals in the “trust receipt” that the proceeds of the note were to be collected and alwajrs held subject to the order of the company. This “trust receipt” must be construed in connection with the terms of the original agreement between the defendant and the company, which was in evidence. This agreement provided that Taylor “will pay over to the company all the cash proceeds of sales made for cash, when sold, and on or before May 1, 1906, will send to the company a complete list of his time sales, and endorse, if necessary, and surrender to the company all notes received by him from the purchasers of said fertilizers, . . to be returned by the company to Taylor, . . for the purpose only of collection and remittance to the company, . . and when said notes are so returned to Taylor by the company, they are to be receipted for in trust to the company by Taylor.” There is no evidence of any cash sales, but it is not disputed that Taylor did sell to various parties the fertilizers belonging.to the company, did receive therefor their notes, did send these notes to the company according to the agreement, and that these notes were returned by the company to Taylor for the sole purpose of having him collect the same and pay over the proceeds to the company. This agreement, supplemented by the oral evidence, fully proved the trust alleged in the indictment, and its breach by Taylor. The “trust receipt” was merely cumulative as to the nature of the trust created. We do not think, however, the statement in the “trust receipt,” that the money — the proceeds of the notes — was to be held by the defendant at all times subject to the order of the company, described a different trust from that alleged in the indictment. It is clear, from the evidence and the admission, of the defendant, that he was in no doubt as to the character of the trust delegated to him by the company.

It was insisted, in the next place, that the State failed to prove the allegation of the indictment, that the notes in question were “transferred and assigned” by Taylor to the Virginia-Carolina Chemical Company; and that this allegation was descriptive of the notes and should have been proved as laid. The writer is inclined to the opinion that this allegation is simply surplusage. It is alleged that the notes described in the indictment were the property of the company, and intrusted to the defendant for the purpose of collecting them and paying over the proceeds to the company. Taking this in connection with the facts that the notes were payable to Taylor, were sent by him to the company, and were intrusted by the company to Taylor as its property, for the purpose of having him to collect the proceeds and pay over the same to the company, the only rational conclusion was that the notes had been transferred and assigned by Taylor to the company; and the express allegation of that fact was simply the legal conclusion of the pleader. But whether this position be sound or not, any deficiency on this point in the proof offered by the State was fully supplied by the evidence of the defendant. The fifteen notes introduced by him were each payable to the order of the defendant, and were each indorsed in blank by him and sent to the compan}1, and by the company intrusted to the defendant for the purpose alleged in the indictment. These notes were all described in the'indictment, among the others which the evidence showed had been collected by the defendant. It is a fair and reasonable inference that the notes collected by Taylor had also been indorsed by him. On three of the notes shown to have been indorsed by the defendant and sent to the company, there appeared credits amounting to $30 or $40; and as the defendant admitted that he had not paid to the company any part of the proceeds of any of the notes, the allegation that the'notes were “transferred and assigned” to the company by the defendant was fully and even technically proved.

The court-allowed several of the makers of tire notes to testify that they paid to the defendant these notes and that he delivered the notes into their possession. This testimonjr was objected to, on the ground that the notes and entries of payment thereon were the best evidence of the fact of payment. Testimony by the maker of a note that he had paid it in full and that it had been delivered up to him by the holder was competent and admissible, without the production of the note itself.

Error is assigned as to certain portions of the charge of the court. A careful examination of the entire charge leads us to the conclusion that there is no merit in any of-these assignments. The charge fully, fairly, and clearly submitted the issues and the law applicable thereto.

■During the progress of the trial, the court propounded many questions to the witnesses on both sides. A large number of these questions are specifically objected to, because they were not only “leading and suggestive, but clearly indicated -to the jury an opinion of the court as to the guilt of the defendant.” A great part of this examination of the witnesses was as to the collection of the notes intrusted to the defendant. There was no controversy over this fact. It was not denied thát the notes were all intrusted by the company to the defendant, to be collected and the proceeds paid over by him to the company. The defendant admitted, in his statement to the jury, that he had collected about $900 on the notes, and. had not paid any o.f it to the company. So this part of the examination of the witnesses by the judge, even conceding that it was justly amenable to the criticism made, could not have been in any manner material or harmful to the defendant. As before stated, the defendant did-not. deny, but fully admitted the nature and purpose of the trust. He admitted that he had collected a large portion of the money, represented by the notes intrusted to him and had not,remitted any part of it to the owner. In-short, he admitted every material allegation of the indictment, except the charge of fraudulent conversion. He set up, as an excuse for-the'breach of the trust reposed in him, the burglary of the storehouse, where he , had the money . in his grip, and the stealing of the same therefrom. This defense was a good one, if true, but it presented three weak points, which were vigorously assailed by the State: the absence of physical marks on the window or door of the storehouse, indicating a burglary; the conduct of the defendant before and immediately after the alleged burglary; and the unreasonableness of the statement that so large a sum of money should have been carelessly left in a small satchel in the store. There were other facts and circumstances, which, the State contended, proved the untruthfulness of this defense, and indicated that it was a sham or pretense to hide guilt.

It is in some cases difficult to determine when the judge violates the spirit of the positive limitations of his judicial right, as prescribed in section 4334 of the Civil Code. Talleyrand said, “Language is given to man to conceal his thoughts;” but the' most adroit and careful use of words is necessary to hide from an alert juror an intimation of the opinion entertained by the trial judge. We know of no better test to apply to the language of a judge, claimed to contain and to intimate an opinion to the jury, than the impression made upon our own minds in reading and considering the words objected to. After a most careful consideration of the questions asked by the court for the purpose of elucidating the issues on the points of the defense above mentioned, we are convinced that the learned judge clearly, although unconsciously, ga-ve expression to his incredulity as to the honesty and truth of the defense. On reading the evidence, we fully share in such incredulity. But the very weakness of a defense makes it all the more necessary that it should go to the jury without the ponderous handicap of judicial disparagement' and discredit. The purpose of the legal inhibition against the expression or intimation of opinion by the judge is to protect a defendant in his weakness, as well as in his strength, and to preserve inviolate the priceless right of trial by jury. The province of the jury as the exclusive arbiters of facts is holy ground, not to be approached by the judge even with bare feet and uncovered head. The judge should sit on the bench the calm and impartial incarnation of law, as silent •as the Sphinx on contested questions of fact. We do not deem it necessary to specifically point out the questions in the record which we think justly obnoxious, to the foregoing criticism. Comprehensively stated, it is that part of the court’s examination of the witnesses which emphasized by suggestive questions the weakness of the defense in the particulars mentioned. We repeat what was said by this court in the Sharpton case, 1 Ga. App. 548 (57 S. E. 932) : “It is almost an intellectual impossibility for a judge to engage in an examination of a witness on vital questions of the case on trial, without in some manner, and to some extent, indicating his own opinion. Every practitioner knows how eagerly alert jurors are to every utterance from the bench, and how sensitive is the mind of the juror to the slightest judicial expression. Therefore, while the trial judge has the right to ask questions of the witnesses whenever necessary, to bring out the full truth of the ease, we are not prepared to say that it is his duty to do so; and, in exercising the right, he should be careful not to intimate any opinion upon the facts, or use any expression calculated to prejudice the rights of either party.” Even in a clear case of guilt, this court has no other alternative, and it desires no other, than to grant a new trial when it comes to the conclusion that the right'of the defendant to have the fact of his guilt or innocence determined exclusively by the jury has been in the slightest degree infringed by judicial intimation or expression. Judgment reversed.


text:
    682.
    COOPER v. THE STATE.
    1. A plea of not guilty, by one accused of crime, is an express contention on bis part antagonistic to every fact necessary to be proved by the State in order to establish his guilt; and unless the accused admits one or more of the facts which it devolves upon the State to prove, such fact must be established by evidence. To assume that an important fact in the case on trial has been admitted, and to so instruct the jury when no such admission has been made, is reversible error.
    2. Venue is a jurisdictional fact which must be established to the satisfaction of the jury beyond a reasonable doubt. If there be uncertainty in the evidence which the jury can not make certain, an acquittal must result.
    3. When the intention of the accused can only be derived from circumstances, the jury should be instructed substantially in the terms of §984 of the Penal Code, that if the circumstances from which a guilty intent could be inferred are equally consistent with an innocent inten-’’ tion or an intention different from that charged against the accused, he should be acquitted.

      Indictment for assault with intent to rape, from Dougherty superior court — Judge Spence. July 15, 1907.
    Submitted October 7,
    Decided October 29, 1907.

      R. J. Bacon, L. W. Nelson, for plaintiff in error.
    W. E. Wooten, solicitor-general, contra.
   Russell, J.

The plaintiff in error was convicted of assault with intent to rape. He excepts to the overruling of his motion for a new trial. The fifteen grounds of the motion, so far as are necessary to be considered, can well be grouped info three exceptions or complaints.

Plaintiff in error excepts to the following instruction of the court, contained in the charge to the jury: “In this case, gentlemen, it is insisted by the State that so far as the element of force is concerned, — the element of consent, — that the female named in the bill of indictment is of such unsound mind, such a mental condition, as to be incapable of giving consent. However, that issue, that question, is not an issue in this case, I believe; it is not contended by the defense that the female was of sufficient mind to give consent to have carnal knowledge.” We have carefully examined the record and do not find that the defendant anywhere or in any manner admitted that the female was of unsound mind, or of such mental condition as to be incapable of giving consent; and for that reason, under the mandatory terms of the Civil Code, §4334, the statement of the judge, contained in this portion of the charge, demands a reversal of the judgment. As has heretofore been pointed out by this court in the case of Southern Express Company v. State, 1 Ga. App. 700 (58 S. E. 67), the filing of a plea of not guilty by the accused is an explicit contention on his part antagonistic to every fact necessary to be proved by the State to establish his guilt. Hnless he admits unequivocally one or more of the facts which it devolves upon the State to prove, such facts must be proved. Especially would this be true in a case, such as the present, where the presumption of sanity must necessarily be rebutted by proof of unsoundness of mind, and where proof of this fact is a burden to be borne by the State.

We can not agree with the contention of the plaintiff in error that the capacity or incapacity óf the female to give' consent is immaterial, or that there is any difference, as to the capacity to give consent, in assault with intent to rape and in rape. The intent to have sexual intercourse with a female forcibly and against her will, as defined in the statute, is a quality applicable to the accused, and not to the person assaulted; and the intent is the same whether the attempt be successful or be defeated. If sexual intercourse with a female of unsound mind be rape, the attempt to have sexual intercourse with. the same female would be assault with intent to rape, provided the attempt to accomplish the intercourse included an intent to do the act forcibly and against the will of the female assaulted. We recognize, however, that there is a distinction between sexual intercourse against the will of the female, and such intercourse without the consent of the female. While it has frequently been held that the two are practically synonymous, yet when this rule is applied to cases where the female is of unsound mind, a difference may he admitted to exist. In cases where assault with intent to rape is alleged to have been committed and the female assaulted is of unsound mind, the rule must be that if the female has a clear and definite understanding of the act sought to be committed, and is capable of exercising a desire in the premises, and under these circumstances consents, the offense would not be complete. Whether she was or was not clothed with a full apprehension of the nature of the act and consented thereto could be determined by the circumstances of the case. The intent, however, of the male, and not of the female, ■would be determinative of his guilt or innocence. If the female be of unsound mind on all subjects, necessarily any sexual intercourse with her or any attempt directed to that end, evidenced by an overt act, would either be rape or assault with intent to rape. If, however, the female, although of unsound mind as to many matters other than that of sexual intercourse, yet has a full understanding of the nature of the act to be committed, and desires to consent to the act of sexual intercourse, and this is apparent to the defendant (the desire not being superinduced by her insanity), it can not safely be said that the offense would be more than fornication, adultery, or adultery and fornication.

The court charged the jury that, “If the State establishes that it was in Dougherty county, inside of the Dougherty county line, beyond a reasonable doubt, or that it was so near the dividing line between the county of Baker and the county of Dougherty as to make it impossible to determine definitely as to whether it was on one side of the line or the other, then, under this section of the code, the State will have complied with the law, if it shows that state of facts.” This charge was error. The venue is a jurisdictional fact which must be established to the satisfaction of the jury beyond a reasonable doubt. The learned trial judge was evidently of the opinion that sections 23 and 24 of the Penal Code were applicable in this ease. Section 23 is as follows: “Whenever a stream of water is the boundary of a count}r, the jurisdiction of the county shall extend to the centre of the main channel of such stream; and if an offense is committed on such stream, and the evidence on the trial does not definitely disclose in which county it was committed, the courts of either county may maintain jurisdiction for the trial and punishment of the offender;” and section 24 provides that where the evidence does not definitely disclose on which side of the line of two counties, at the place where such county line touches a river forming a boundary between this and any other State, the offense is committed, the courts of either county may maintain jurisdiction. The instruction was wholly unsuited to the facts of this case. There was a conflict in the testimony as to which side of the line between Baker and Dougherty counties the alleged offense was committed. A large number of the witnesses swore that the road, which presumably, from the evidence, was constructed on the line between these two counties, curved or deflected around the lime sink where the offense is alleged to have been committed. The evidence showed that the county line was a straight line; and this, court judicially knows that fact, and the further fact (also disclosed by the evidence) that the boundary line of Dougherty and Baker counties is not a stream of water. A large number of the witnesses swore that the lime sink was in Baker county and quite a number that it was in Dougherty county. The jury would'have been authorized to believe, from the testimony, that the transaction occurred in either county. But the only correct charge that could have been made, with reference to a boundary line, would have been (had there been evidence from any witness that the offense was committed on the boundary line) that if the jury believed that the offense was committed on the boundary line, then either county would have jurisdiction to try the offender, — -this means on the line, and not that the place was so near the line as to leave the matter in doubt.

"We think that the complaint contained in the 13th ground of the motion is well taken3 and that the jury should have been instructed that the intent must be proved beyond a reasonable doubt; and inasmuch as the intent of the defendant could have been ascertained only from the circumstances, .we think further that the jury should have been instructed that if these circumstances were equally consistent with the defendant’s innocence, he should be acquitted. While we1 may think that the assault, if made, could have been for no other purpose than that of sexual intercourse, still failure to call the attention, of the jury to section 984 of the Penal Code would have the effect of precluding the defendant’s defense that he had a different' intention in making the assault, if the jury believed he made the assault. Judgment reversed.