author: Jenkins, j.

text:
      9203.

    Marietta Fertilizer Company v. Gary et al.

   Jenkins, j.

1. The law does not require an approval of the brief of evidence by opposing counsel, but requires only that it be approved by the trial judge. Price v. High, 108 Ga. 145, 149 (33 S. E. 956); Bugg v. State, 13 Ga. App. 672 (79 S. E. 748).

2. Any point of practice which, if sound, would be fatal to a motion for a new trial should be presented to the trial court by a motion to dismiss the application for a new trial, and, if not so presented, will be treated as having been waived. Walker v. Neil, 117 Ga. 733 (45 S. E. 387). Where the judge has finally passed on the merits of a motion for a new trial and the parties have raised no question as to approval of the brief of evidence, or as to the filing of the motion or the brief, or as to the jurisdiction of the judge to entertain the motion at the time he did, and have acquiesced in his entertaining it at that time, no such question can be entertained by the reviewing court. Acts 1911, p. 149 (Park’s Ann. Code, § 6090 (a)); Lewis v. Phillips-Boyd Publishing Co., 18 Ga. App. 181 (89 S. E. 177).

3. Failure to serve counsel of the opposite party with the brief of counsel for the plaintiff in error, as required by Rule 15 of this court (Civil Code of 1910, § 6339), is not ground for dismissal of a writ of error. Stewart v. Murray, 14 Ga. App. 438 (81 S. E. 382); Barfield Music House v. Harris, 20 Ga. App. 42 (92 S. E. 402).

4. The death of a party to a case pending in this court may be suggested • by counsel for either side at any time in open court, and the legal representativa of the deceased party may voluntarily become a party to the case at any time. Civil Code (1910), § 6352.

5. Under the foregoing rulings and the waiver signed by the representative of the deceased defendant, Bradford, the motions to dismiss the bill of exceptions must be overruled.

6. There was no error in excluding from evidence Bradford’s plea of non est factum, which was offered in evidence by the plaintiff for the purpose of comparing the signature on the plea with the signature on the bond sued upon. Civil Code (1910)', § 5836. Even though the other writings offered for the purpose of comparison be “acknowledged as genuine,” the opposite party is entitled to know that evidence for the comparison of signatures will be resorted to, and to have the writings that are introduced for that purpose submitted to him before he announces himself ready for trial.

7. While in answer to a plea of non est factum it is only necessary for the plaintiff to make out a prima facie case of the execution of the instrument sued on, in order to authorize its admission in evidence (Jewell v. Walker, 109 Ga. 241, 34 S. E. 337; Bank of Norwood v. Chap man, 19 Ga. App. 709, 92 S. E. 225), it is not admissible without some extrinsic evidence of its execution. Patton v. Bank of LaFayette, 124 Ga. 965 (53 S. E. 664, 5 L. R. A. (N. S.) 592, 4 Ann. Cas. 639); Paulk v. Creech, 8 Ga. App. 738 (70 S. E. 145); Wilson v. Barnard, 10 Ga. App. 98 (72 S. E. 943). The only evidence relied on by the plaintiff in this case to prove execution of the bond by Bradford, which was denied by him, was testimony of W. E. Morris, who swore as follows: “I have seen Mr. W. B. Bradford’s signature a good many times, but I could not swear to his signature. The signature on1 the bond resembles his. I am not familiar with it well enough to say that it is.” This testimony is not sufficient, since a witness must express what amounts to an opinion, one way or the other, at the time he is testifying. Foster v. Jenkins, 30 Ga. 476. The court, therefore, did not err in refusing to allow the plaintiff to introduce in evidence the -bond sued on, as to the defendant Bradford, or in thereafter directing a verdict in his favor.

8. There was sufficient evidence to sustain the plea of the defendant Gary, setting up that the bond sued on had never' been accepted by the plaintiff, but on the contrary had been declined,' and that another bond in lieu of the one sued on had been given and accepted.

9. Error is assigned on the following excerpt from the charge of the court: “The defendants, J. H. Gary, A. J. Connell, and J. P. Peeples, come into court and set up that the bond was not accepted by the' sheriff, and that there was another bond given; that while the bond which purports to have been executed, which is being sued upon, was prepared and offered to the sheriff, it was not in fact accepted by him, therefore not binding upon them, never having been accepted. That makes the issue-as to the plaintiff in the case and J. H. Gary, J. P. Peeples, and A. J. Connell.” Since the defendants J. P. Peeples and A. J. Connell had filed no defense of any kind, the charge given was not authorized as to them. But “the obligation of the surety is accessory to that-of his principal, and if the latter from any cause becomes extinct, the former ceases of course, even though it be in judgment.” Civil Code (1910), § 3539. Thus, the verdict of the jury in favor of J. IT. Gary, principal, discharging him from liability, extinguished ipso facto the obligation of the sureties J. P. Peeples and A. J. Connell (Schlittler v. Deering Harvester Co., 3 Ga. App. 86, 59 S. E. 342), and under the .well-recognized doctrine of the law of suretyship, that whatever discharges the principal discharges the surety (Patterson v. Gibson, 81 Ga. 802, 10 S. E. 9, 12 Am. St. R. 356), the grant of a new -trial upon this ground of the motion for a new trial would be of no avail to the plaintiff. See also Savannah Bank & Trust Co. v. Purvis, 6 Ga. App. 275, 277 (65 S. E. 35); Gartrell v. Johns, 15 Ga. App. 671 (84 S. E. 175); Norris v. Pollard, 75 Ga. 358. This holding' is not in contravention of the rule of law to the effect that where a bond is joint and -several, suit may be brought upon it against the sureties without joining the principal (State of Georgia v. Henderson, 120 Ga. 781, 48 S. E. 334); and see Morrison v. Slaton, 148 Ga. 294 (96 S. E. 422); since in those cases there had been no adjudication of non-liability on the part of the principal.

Decided September 17, 1918.

Action upon bond; from city court of Nashville—Judge Christian. September 11, 1917.

W. D. Buie, W. B. Smith, for plaintiff.

Ilendriclcs, Mills & Hendricks, J. A. Alexander, for defendants.

jjO. The remaining grounds of the motion for a new trial are Without substantial merit..

Judgment affirmed.

Wade, O. J., and Luke, J., concur.


source: Caselaw Access Project

author: Broyles, P. J.

license: Public Domain

text:
    9633.
    Darby v. The State.
    Decided September 17, 1918.
   Broyles, P. J.

1. The motion by the accused for a continuance of the case on the ground of the' absence of a witness did not come up, in several particulars, to the statutory requirements (Pena'l Code, § 987), and the judge did not abuse his discretion in overruling it.

2. The court did not err in admitting the alleged dying declaration of the deceased, which, according to the- testimony, was made -a few hours before his death and when he believed that he was about to die. Under all the facts surrounding it, disclosed by the record, the jury were authorized to find that the deceased was actually in the article of death at the time of the declaration; and the court clearly instructed the jury that they could not consider the alleged declaration unless they found that the deceased was, at the time he made it, in the very article of death. Darby v. State, 9 Ga. App. 700 (3), 703 (72 S. E. 182).

3. The excerpt from the charge upon the subject of voluntary- manslaughter, complained of in the 4th special ground of the motion for a new trial, is not erroneous when considered with its context and in the light of the’.entire charge.

4. The court did not err in overruling those special grounds of the motion for a new trial based upon the disqualification of certain members of the- jury which returned the verdict against the defendant.’ The showing by the movant was met by a counter-showing by the State, and it does not appear that the court abused its discretion in this matter.

5. The court did not err in refusing to give any of the instructions requested. So much of them as was legal and pertinent to the facts of the case was sufficiently covered by the charge given.

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

7. The defendant in this case has been three times convicted of the offense of voluntary manslaughter. Twice, on account of errors in the trial of the case, this court has granted him a new trial. 9 Ga. App., supra; 16 Ga. App. 171 (84 S. E. 724). Upon the last trial no material error appears to have been committed; the charge of the court was fair, full, and as favorable to the defendant as he was entitled to under the law; and the verdict is amply supported by the evidence.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.

Conviction of manslaughter; from Toombs superior court-.Judge Hardeman. October 4, 1917.

E. J. Giles, G. 1F. Lanlcford, G. IF.. Sparks, J. K. Hines, for' ■ plaintiff in error.

Walter F. Grey, solicitor-general, contra.


author: Jenkins, J.

text:
    8397.
    Central of Georgia Railway Co. v. Meriwether County.
    Decided September 27, 1918.
    Illegality of execution; from Fulton superior court—Judge Bell. April 10, 1916.'

      Battle & Hollis, for plaintiff in error.'

      N. F. Culpepper, contra.
   Jenkins, J.

Under the answer to the questions of law submitted to the Supreme Court in this case (148 Ga. 438, 96 S. E. 884), judgment of ’ the superior court, overruling the affidavit of illegality, must be

Reversed.

Wade, O. J., and Luhe, J., concur.


author: Wade, C. J.

text:
    8695.
    Morton v. Savannah Hospital.
    Decided September 27, 1918.
    Action for damages; from city court'of Savannah—Judge Free^ man. February 14, 1917.
    • Shelby Myrick, for plaintiff. Wilson & Rogers, for defendant.
   Wade, C. J.

Under the answers made by the Supreme Court (148 Ga. 423 96 S. E. 887) to the several questions certified by this court in this ease, it appears that the trial judge erred in sustaining the general demurrer to the plaintiff’s petition; and therefore his judgment must be reversed.

(a)' As the decisions and rulings, of the Supreme Court are binding- as .precedents upon this court, anything in the decision in the ease of Medical College v. Rushing, 1 Ga. App. 468 ( 57 S. E. 1083), which may be in actual conflict with holdings of the Supreme Court in this case will not be followed.

Judgment reversed.

Jerilñns and Luhe, JJ., concur.


author: Harwell, J.

text:
    9407.
    GAMBLE v. SHINGLER et al.

    1. The incorrect heading of the petition was evidently an oversight, and ' was amendable.
    2. The property was sufficiently identified, and the first ground of the demurrer, as to the insufficiency of the description, was properly overruled.
    3. There is no merit in the ground of the demurrer that the suit was prematurely'filed. (Harwell, J., dissents.
    4. In the absence of a formal assignment in writing, and there being no evidence of any clerical mistake in the naming of the payee, the court erred in admitting in evidence, over timely objection, the retention-of-title note involved in this case.
    5. This suit in trover having been brought by the vendor against a third person, and not the original vendee, and there being no proof of the value of the property sued for, the court erred in directing a money verdict.
    Decided September 28, 1918.
    Trover; from city court of Albany—Judge Clayton Jones. December 1, 1917.

      /Benton Odom, Peacock '& Gardner, for plaintiff in error.

      Milner & Parkas, contra.
   Harwell, J.

The petition"was improperly headed, “Georgia, Terrell County,” and addressed to the city court of Dawson. The plaintiff offered an amendment,'which the court allowed over the objection of the defendant, changing the heading to “Georgia, Dougherty County,” and addressing the suit to the city court of Albany. The petition alleged that the defendant was a resident of Dougherty county, Georgia, it was filed in the city court of Albany, the affidavit for bail, attached to1 the petition,'is headed, “Georgia, Dougherty County,” and recites that suit is about -to be entered in the “city court of Albany;”’the process was issued from the city court of Albany, and requires the defendant to appear at that court, and was served by the sheriff of Dougherty, county;. ,all the proceedings in the case being in the city court of Albany, Dougherty county, Georgia. . The incorrect heading was evidently an oversight, and was amendable,, and the court did not err in' allowing the amendment or in overruling the oral motion to dismiss the petition bn this ground. The Supreme Court in the case of Wingate v. Gornto, 147 Ga. 192 (93 S. E. 207), said: “The petition was addressed to the wrong court—to a court withopt jurisdiction of the subject-matter; but it was never filed in that court, nor did it ever become a proceeding of the court of ordinary. The petition was handed to the judge of the city court [the proper court] for action; he treated it as a proceeding in the city court, and passed an order requiring service of the petition and an appearance of the minor before him. The misdirection of the address of the court was an amendable defect which is cured by the judgment.” In this case, as in that ease, the petition was addressed to the wrong court, but all the proceedings were in the proper court, and'“the misdirection of the address of the court was an amendable defect.” Civil Code, §§ 5682, 5691; Nance v. Patterson, 10 Ga. App. 843 (74 S. E. 438); Parish v. Davis, 126 Ga. 840 (55 S. E. 1032); Ocilla So. R. Co. v. McAllister, 20 Ga. App. 400 (93 S. E. 26); Morgan v. Goldstein, 20 Ga. App. 115 (92 S. E. 777).

The first ground of the demurrer was as to the insufficiency of the description of the property for which the bail-trover suit was brought. The description was “One Chevrolet five-passenger touring, car, 1917 Model.” This description was too indefinite (McElhannon v. Farmers &c. Co., 95 Ga. 670, 22 S. E. 686; Collins v. West, 5 Ga. App. 429, 63 S. E. 540); and the ground of demurrer is well taken, unless the property is otherwise identified in the declaration. We think it is sufficiently identified by the further allegation that “said property is the property of your petitioners by virtue of a conditional-sale note, ^herein plaintiffs retain title. A copy of said note is hereto attached, marked exhibit fA,’ and is hereby made a part of this petition.” The note is attached,' and in addition to the above description, gives the motor number “71416.” This ground of the demurrer was therefore properly overruled.

The second ground of thé demurrer is that the suit is “prematurely filed, it affirmatively appearing that title is retained to said property by reason of a contract attached to the "petition, the title being retained in said contract for the balance of the purchase money due on said property, and that the amount is not due and payable until the first day of September, 1917.” The note retaining title, • attached to the petition, is due September 1, 1917. Suit was filed August 20, and service made August 23, 1917. The petition is in the short form, simply alleging possession in the defendant and refusal’ to deliver.

A majority of the court is of the opinion that since the suit is not against the original purchaser but against a third -party, and since the petition alleges possession of the property sued for in the defendant, an inference arises that the defendant is holding the property for himself and not for the original purchaser; that the petition might be subject to a special demurrer calling upon the petitioners to show how the- defendant came into possession of the property, but that it was not subject to the demurrer interposed, which, failed to “put its finger on the very point.” The writer dissents from this opinion of the majority. It is insisted by counsel for the defendants in error that there was an unconditional sale of the property by Fisk, the maker of the note, to Gamble, the defendant,' and therefore that trover could be brought before the note Was due; citing Sims v. James, 62 Ga. 260. But the reply to this is that there is no allegation to this effect in the petition. The demurrer attacks the sufficiency of the petition, and it must be tested by the allegations thereof, and not by what the evidence may show. I do not think the allegations of possession and refusal to deliver are sufficient .to show a conversion, where the petition further shows, as this does, that a suit was filed before the note given for the purchase of the car was due. In the opinion of the writer this ground of the demurrer was well taken and should have been sustained. However, a majority of the court think otherwise.

4. This suit is one in trover for an automobile, brought by J. S. Shingler Jr. and J. R. Brown, doing business under the firm name of Shingler Auto Company, against Dave Gamble. The plaintiffs’ claim of title, as set up in the petition, is based on a purchase-money note retaining title to the automobile, given by W. R. Fisk and Jesse Fisk to the Shingler Auto Company, a copy of the note, being attached to the petition. The plaintiffs offered in evidence a note signed by W. R. Fisk and Jesse Fish, payable to “Shingler & McKenzie Hardware Co., a corporation under Georgia laws.” The note otherwise was substantially the same as that attached to the petition. The court, over the objection of the defendant,' admitted the note in evidence. This we think was error. There was no evidence of any transfer or assignment in writing of the note from the “Shingler & McKenzie Hardware Co., a corporation,” to the Shingler Auto Company, and no evidence that it was, by a .clerical mistake, inadvertently made to the Hardware Company. The only evidence on this point is testimony simply that “the Shingler Auto Company owns this note.” It is not shown how it became the owner. Mere delivery of the note would not pass title. to the automobile from the Shingler & McKenzie Hardware Co., a corporation, to the Shingler Auto Company. This court has held that “even if the mere delivery of the note was sufficient (because the note was payable to the bearer) to transfer the evidence of the indebtedness, delivery alone was not sufficient to effect ■an assignment of the special chose in action involved in the reservation of title. . . It was necessary, to the existence and validity of the assignment of the right to assert title, that the assignment be in writing.” Swann Davis Co. v. Stanton, 7 Ga. App. 668, 671, 672 (67 S. E. 888), and cases there cited. See, in this connection, Park’s Ann. Code, §§ 3345, 3346, 4276; Burch v. Pedigo, 113 Ga. 1157 (39 S. E. 493, 54 L. R. A. 808); Mills v. Pope, 20 Ga. App. 820 (93 S. E. 559).

The plaintiffs offered no evidence of the value of the property. This action was between the original seller and a third person, not the original vendee. The verdict was a money verdict. “To authorize a money verdict in a trover suit there must be some evidence to show the value of the personal property converted by the defendant.” Oglesby v. Hanson, 7 Ga. App. 318 (66 S. E. 802). “As between the original seller and the original purchaser, the agreed price as stated in the contract of sale is prima facie, but not conclusive, evidence of the actual value of the property. But as between the seller and third persons the amount stated in the contract of purchase is of no such evidentiary value.” Elder v. Woodruff Hardware Co., 9 Ga. App. 484, 486 (71 S. E. 806). See also Young v. Durham, 15 Ga. App. 678 (84 S. E. 165); Wilson v. Owen, 19 Ga. App. 159, 160 (91 S. E. 233). The court therefore erred in directing a money verdict for the plaintiff.

Since there is to be another trial, it is not necessary to pass upon the . special -ground of the motion, that there was no evidence to identify the property described as being in the possession of the defendant. Neither is it necessary to pass upon the alleged error in the admission of testimony as set out in the 4th special ground of the motion, as, if erroneous, it will not likely occur on the next trial; See, in this connection, Swann Davis Co. v. Stanton, supra.

Judgment reversed.

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


author: Bloodworth, J.

text:
    9463.
    WILBURN v. THE STATE.
    Under § 1066 of the Pqnal Code (J910), an accusation charging that the accused made “an attempt to steal” certain property, and not alleging, some overt act done toward the commission of the attempt, is lacking in definiteness and is insufficient.
    Decided October 8, 1918.
    Accusation of misdemeanor; from city court of Dublin—Judge Elynt. December 4, 1917.
    The accusation alleged that the accused “did . . unlawfully make an attempt to steal one bale of cotton, being the property of a partnership. composed of W. T. Smith and E. T. Andrews, name of firm, Smith and Andrews, warehouse number 7783, weight 415 pounds, being lint cotton, and baled with bagging and ties of the value of $80.00.” The defendant demurred as follows: “1st. Because said accusation charges this defendant with no crime against the laws of this State. 2d. Because the acts alleged to have been done by the defendant are not such overt acts as to make out the offense that he is charged with, to wit an attempt to commit a felony, or to steal baled cotton. Defendant demurs specially to said accusation because it does not put defendant on ■ notice of what overt acts he did in the commission- of an attempt to steal baled cotton, set out in the accusation.”

      W. A. Pompier, for plaintiff in error.

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

Under section 1066 of the Penal Code (1910), an indictment is insufficient and lacking in definiteness which charges that the defendant “did then and there make an attempt to steal” certain property, and does not allege some overt act which the defendant did toward the commission of such attempt. The section referred to provides that “If any person shall attempt to' commit a crime and in-such attempt shall do any act toward the commission of such crime,” etc. (Italics ours.) The conjunction “and” makes the doing of the act an essential and requisite part of the crime. An attempt to commit a crime is as much a violation of the law of our State as is any other statutory offense. The mies of law as to certainty and definiteness of pleadings in indictments apply to this offense with the same strictness as to other statutory crimes. The pleadings must be sufficiently definite not only to prevent the defendant from being put in jeopardy the second time, but also to put him on notice of what he is charged with having done. In the instant case the accusation gives the defendant no notice of what he is charged with" having done in making the attempt. The accusation seeks to charge him with an attempt to steal, and yet it contains no allegation whatever'of the way in which the attempt was made. “Indictments for attempts to commit a crime must aver the intent and the overt act constituting the attempt.” Hogan v. State, 50 Fla. 86 (39 So. 464, 7 Ann. Cas. 139). And see State v. Doran, 99 Me. 329 (58 Atl. 238, 105 Am. St. R. 278); Thompson v. People, 96 Ill. 158; State v. Wilson, 30 Conn. 500; State v. Frazier, 53 Kan. 87 (36 Pac. 58, 42 Am. St. R. 274); State v. Colvin, 90 N. C. 719. In the headnotes of the case of United States v. Ford, 34 Fed. 26, it is said: “An indictment charging, in the-exact words of Rev. St. U. S. § 3177, that defendant 'did forcibly attempt to rescue’ property seized by a revenue collector, does not state with sufficient certainty what acts were done by defendant that constituted the attempt charged. A conviction on such indictment, although fully warranted by the evidence, will be arrested on motion, the want of certainty not being waived by failure to demur.” A fair illustration of a proper allegation in an indictment under this section of the Penal Code is found in the case of Weaver v. State, 116 Ga. 550 (42 S. E. 745), wherein “John J. Weaver was indicted for the offense of 'attempt to commit arson,’ the allegation in the indictment being that the said Weaver did attempt wilfully and maliciously to burn the home of Mrs. G. Bevill,.and did do a certain act towards the commission of said crime, to wit, by putting kerosene oil on said house,” etc. In Groves v. State, 116 Ga. 516 (42 S. E. 755, 59 L. R. A. 598), it was said: “In order to constitute the offense of "attempt to commit a crime, the accused must do some act towards its commission.” See cases there cited.

As the proof must show that some act was done toward the commission of the attempt, it is necessary that the act constituting the attempt be alleged. This is necessary in order that, the court may determine whether the indictment really shows- an “attempt” or merely preparation to commit the crime. “If the facts charged in the indictment to have been done amount to an attempt, the offense of attempt to commit the crime is sufficiently charged.” Griffin v. State, 26 Ga. 493, 946. There are numerous decisions to the effect that mere preparation, without doing an overt act, does not constitute an attempt. “Between the preparation for the attempt and the attempt itself there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement towards the 'commission after the preparations are made.” People v. Murray, 14 Cal. 159; Jackson v. State, 103 Ga. 417 (30 S. E. 251); Brown v. State, 95 Ga. 481 (20 S. E. 495); Moss v. State, 6 Ga. App. 524 (65 S. E. 300). “An attempt to commit a crime is an act done with intent to commit that crime, and tending to, but falling short of, its commission.” Clark’s Criminal Law (2d ed.), 126. “An attempt to commit crime is an act done with intent to commit it, beyond mere preparation, but falling short of its actual commission.” 12 Cyc. 177.

In the ease of Griffin v. State, supra, the same question is raised as in the instant case, and while the act constituting the attempt was, in the opinion of the writer, rather in the nature of preparation, still the indictment does allege two acts which the accused did in making the attempt, and the Supreme Court in its opinion in that ease recognized the fact that the indictment must allege some act. In the opinion Judge McDonald said: “The object, of the act under which the plaintiff in error is indicted is to punish intents to commit crime, if they are demonstrated by an- act,—for it declares that if a person shall attempt to commit a crime, and in such attempt shall do any act towards the commission of such offense, etc. The accused, according to the bill of indictment, conceived the-purpose of perpetrating the offense, and he did an act towards tbe commission of it, for it was an act to take the impression of the 'key, and that alone is sufficient to subject him to the law; but he prepared the key, and for the object, and so the indictment alleges.” In the case of Alsobrook v. State, 126 Ga. 100 (51 S. E. 805), the Supreme• Court, in passing upon another question, said that the indictment properly construed charged “an attempt to commit the offense defined in the Penal Code.” The indictment, a proper construction of which charged an attempt to commit the crime,- alleged the following acts: “that he did . . attempt to obstruct a railroad track . . ; the said Watson Alsobrook then and there seeking out and procuring a railroad cross-tie and carrying the same to said railroad track with the intent,” etc..

From the above it is apparent that the trial judge erred in overruling the demurrer to the indictment, and that the .judgment must be Reversed.

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


text:
    9590.
    Smith v. The State.
   Bloodworth, J.

No brief of evidence waS filed with the motion for a new trial. The hearing of the motion was set for the 3d day of October, 1917, by an order which provided “that movant have until October 3, 1917, to prepare and present for approval a brief of the evidence in said case.” On December 13, 1917, the following order, was passed: “The within motion is dismissed for want of prosecution, and for the further reason that no brief of evidence has been filed as required by law.” On December 21, 1917, the movant’s attorney filed a motion to set aside the order dismissing the motion for new trial, “1st. Because said judgment was signed within five days of the convening of the December term, 1917, and therefore after the September term of said court had as a matter of law adjourned, and when court was not legally in session. 2d. Because no notice was given to movant or his attorney that said motion would be called up at said time and at said place or at any other time, while under the law, said motion not having been heard at the time same was set, if was the duty of the solicitor to give ten-days notice in writing to movant or his .attorney, with intention to call same up.” On February 11, 1918, the following order was passed: “This motion to set aside judgment being set by special order for two o’clock p. m., and it now being two thirty p. m., this petition refused and motion overruled.” Held: Nothing in the record authorizes this court to hold that this order was erroneous. Counsel for the movant should have been present at the time fixed for the hearing of Ms motion. In addition to this, and even granting that the order dismissing the motion for a new trial was passed in vacation and without notice to the movant, this could not have injured his cause, for the time fixed for filing the brief of evidence was passed. The motion for a new trial never haying been perfected, the result was as if none had ever been made. “A motion for a new trial is not complete before the brief of evidence has been approved. Where the court in its order specifically limits the time within which the brief of evidence must be presented, and no brief is presented within that time, it is not error to dismiss this incomplete and defective motion for a new trial.” Guthrie v. Hendley, 8 Ga. App. 101 (68 S. E. 654). See also Bell v. State, 19 Ga. App. 41 (90 S. E. 733); Baker v. Johnson, 99 Ga. 374 (27 S. E. 706); Brooks v. Proctor, 111 Ga. 835 (36 S. E. 99); Verner v. Gann, 144 Ga. 843 (88 S. E. 204); Reed v. Warnock, 146 Ga. 483 (91 S. E. 545).

Decided October 8, 1918.

Motion for new trial; from city court of Floyd county—Judge Nunnally. February 11, 1918.

M. B. Súbanles, for plaintiff- in érror.

J. F. Kelly, solicitor, contra.

Judgment affirmed.

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


text:
    9613.
    Moon v. The State.
    Decided October 8, 1918.
    Conviction of manslaughter; from Bibb superior court—Judge Mathews. February 22, 1918.

      John B. Cooper, E. W. Butler, for plaintiff in error.

      John P. Boss, solicitor-general, contra.
   Harwell, J.

1. When considered in connection with the charge of the court as a whole and the evidence in the casé, the instructions eom- , plained of were not erroneous foV -any reason assigned. '

2. There is no merit in the ground of the motion -for a new trial,. which assigns error because the court did not charge upon the character of the deceased for violence and turbulence. The defendant should have submitted a timely written request, if a charge on. this subject was desired. Tillman v. State, 136 Ga. 59 (70 S. E. 846). The charge of the court fairly submitted to the jury the issues in the case. The evidence amply authorized the verdict of voluntary manslaughter, no error of law appears, and, the trial judge having approved the verdict, this court will not interfere.

Judgment affirmed.

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


text:
    9619.
    SHIELDS v. THE STATE.
    1. When read and considered in connection with the notes appended by the court and the facts in the case, the excerpts from the charge of the court, complained of, were not erroneous for any reason assigned.
    2. It is not cause for a new trial that the court ruled out the testimony on cross-examination set out in the 6th special ground of the motion for a new trial, testimony to the same effect having already been admitted on the direct examination.
    3. There is no merit in the ground that the .court erred in admitting in evidence the statement of the deceased, made a short time after he was cut and a few minutes before he died, that he was cut, and that the defendant cut him. If not admissible as a part of -the res gestas, it was harmless error, inasmuch as the defendant in his statement at the trial admitted that he cut the deceased.
    4. The evidence authorized the verdict, no error of law appears, and the court did not err in overruling the motion for a new trial.
    Decided October 8, 1918.
    Conviction of manslaughter; from Jasper superior court—Judge Park. February 33, 1918.

      Eugene M. Baynes, for plaintiff in error.

      Doyle Campbell, solicitor-general, W. S. Florence, contra.
   Harwell, J.

The accused was indicted for the murder of one 'Jordan, and was found guilty of voluntary manslaughter. He made a motion for a new trial, which the court overruled, and he excepted. It is not necessary to discuss any of the grounds of the motion, except perhaps the 5th, which complains of an excerpt from the charge of the court, in which the judge instructed the jury as to the circumstances under which a man would have.a right to kill another to prevent an act of adultery with his wife. It will be noted that, as the judge says in the note appended to this ground, he was presenting to the jury one of the theories of the State as to the motive of the killing. He was not presenting a contention of the defendant, and in this respect the instant case is differentiated from the case of Key v. State, 21 Ga. App. 300 (94 S. E. 383), cited and relied on by counsel for the plaintiff in error. In that case the court was presenting to the jury a contention of the defendant, and, in doing so, incorrectly stated the defendant’s contention, and this court held that it was such harmful error as required the grant of a new trial. In the instant ease the charge of the court was full and fair, and correctly stated the defendant’s theory of self-defense. The State insisted, however, that the defendant invited Jordan, the deceased, to his house, and killed him out of revenge, because the defendant had discovered improper relations between Jordan and the defendant’s wife. The evidence, together with the defendant’s statement, we think, authorized the charge complained of, and there was.no error in overruling this ground of the motion. -The headnotes do not need further elaboration.

Judgment affirmed.

Broyles, P. J., and Blood-worth,, J.,-concur.


author: Bloodwobth, J.

text:
    9669.
    Hicks v. The State.
    Decided October 8, 1918.
    Conviction of assault; from city court of Dublin—Judge Flynt. 'March 25, 1918.

      R. Earl Camp, for plaintiff in error.

      8. P. New, solicitor, contra.
   Bloodwobth, J.

By consent t’his case was tried by the judge without the intervention of a jury. The motion for new trial contains the general grounds only. There is ample evidence to support' the finding, and this court will not interfere with the discretion of the trial judge in.refusing a new trial.

Judgment affirmed.

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


text:
    9713.
    Robinson v. The State.
    Decided October 8, 1918.
    Accusation of violation of prohibition law.; from city court of Macon—Judge Guerry. March 21, 1918.
    ■ W. A. McClellan) J. F. Urquhari, for plaintiff in error.

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

There was some evidence to authorize the finding of th'e trial judge, exercising by consent the functions of both judge and jury;. and the motion for a new trial containing only the usual general grounds, this court will not interfere with'the discretion of the lower court in overruling the motion.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur. ■


text:
    9741.
    Flannagan v. The State.
    Decided October 8, 1918.
    Accusation of misdemeanor; from city court of Floyd county— Judge Nunnally. April 15, 1918.

      W. B. Mebcme, for plaintiff in error.

      J. F. Kelly, solicitor, contra.
   Bloodworth, J.

1.' Where the defendant, on cross-examination of a witnéss for the State, put in evidence her own general character, it was not error for the court thereafter to allow other witnesses to testify that they were “acquainted with the general reputation of the defendant for lewdness, and it is bad.”

2. While, the evidence as to the general reputation of the defendant and of her house for. lewdness, standing alone, would not be sufficient to authorize a conviction, there was other evidence which, taken in connection with this, was sufficient to authorize the jury to convict on the count for keeping a lewd house, Fitzgerald v. State, 10 Ga. App. 70 (5), 76 (72 S. E. 541).

3. There was ample evidence to authorize the conviction on the count for running a disorderly house.

Judgment affirmed.

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


text:
    9758.
    ASHLEY v. THE STATE.
    The evidence authorized a finding that the taking of the seed from the store by the accused was done privately,. and that he was guilty of larceny from the house.
    Decided October 8, 1918.
    Accusation of larceny from house; from city court of Eastman— Judge Griffin. October 23, 1917.
    It was contended on the part of the plaintiff in error that, according to the evidence, 'the seed alleged to have been stolen from the prosecutor’s store were not privately, taken, and the owner con- ' sented to the taking, and therefore the conviction was unauthorized.

      8. P. New, for plaintiff in error, cited:
    Penal Code (1910), § 176; Edmondson v. State, 18 Ga. App. 233; O’Bannon v. State, 76 Ga. 29.

      J. H. Boperts, solicitor pro tern., contra.
   Broyles, P. J.

The defendant, after buying some other articles in the prosecutor’s storehouse in the daytime, put his hand into a box and took out several packages of garden-seed (of the value of 45 cents), put them into his pocket, and- walked out of the building. The box of seed was in the front part of the store, and when the seed were taken the prosecutor was at his desk near the rear of the store and could not be seen by the defendant. The prosecutor, however, could see the defendant, and saw him take the seed, but said and did nothing at the time. On the trial the prosecutor testified that the seed were taken without his consent. A clerk in the store also saw the defendant take the seed, and told the prosecutor about it when the defendant left, and the prosecutor replied, “Let him go.” The prosecution was not instituted until about fourteen months after the alleged larceny was committed. The defendant introduced no evidence and made no statement. The evidence authorized the finding that the (defendant did privately steal the seed.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9778.
    Clark v. The State.
    Decided October 8, 1918.
    Indictment for manufacturing intoxicating liquor; from Heard superior court—Judge Searcy presiding. April 20, 1918.

      M. 77. Mooty, for plaintiff in error.

      G. E. Boop, solicitor-general, contra.
   Broyles, P. J.

The motion for a new trial contained only the usual general grounds. The conviction of the defendant was authorized by the evidence and has been approved by the trial court.

Judgment affirmed.

Bloodworth and Harwell, J.J., coneur.


text:
    9800.
    Parks v. The State.
   Broyles, P. J.

1. The statute defining the offense of burglary (Penal Code of 1910, § 146) states that “all outhouses contiguous to or within the curtilage or protection of the mansion or dwelling-house shall be considered as parts of the same.” Under the ruling in Bryant v. State, 60 Ga. 358, an outhouse may be considered a part of the dwelling-house if it be within its protection, although it may not be contiguous thereto or within its curtilage. In the instant case the corn-crib’ broken into, and from which corn was stolen, and the prosecutor’s dwelling-house were in a “no fence” county, and neither was enclosed by any fence, and a public road ran between them. When the offense was being committed the prosecutor and his wife, at night, from thei/r dwelling-house heard and saw the defendant breaking into the corn-crib. This clearly shows that the corn-crib was so located as to be within the protection of the dwelling-house, and therefore, under the ruling just stated, it must be considered as a part thereof.

Decided October 8, 1918.

Indictment for burglary; from Dawson superior court—-Judge Jones. May 8, 1918.

R. H. Baker, B. P. GaiTlard Jr., for plaintiff in error.

Robert McMillan, solicitor-general, contra.

2. The conviction of the offense of burglary was amply supported by the evidence, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9818.
    BURNEY v. THE STATE.
    1. As to the weapon used in committing the crime, an indictment for the offense of shooting at another, in which the weapon is 'described as a “shotgun,” is supported by proof that the crime was committed with a rifle.

      (a) It is not cause for a new trial that the judge, in overruling a motion to exclude such evidence, remarked, in the presence of the jury, that “a rifle is a shotgun.”.
    2. The court is not required to charge the jury on a theory of defense arising solely from the prisoner’s statement at the trial, where there is no request so to charge.
    3,4. Failure to give other instructions, not requested, in connection with correct instructions given to the jury, is no ground for exception to those given. In view of the entire charge and the facts of the case, there was no error in refusing to charge or in charging as complained of in the motion for a new trial.
    5. The evidence authorized the verdict.
    Decided October 8, 1918.
    Indictment for shooting at another; from Laurens superior court —Judge Kent. May 7, 1918.

      W. PL. Dampier, for plaintiff in error.

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

The 4th and 5th grounds of the motion for new trial will be considered together. The 4th ground alleges error in allowing the prosecutor to testify that the accused shot -at him “with a little 23 rifle,” when the indictment charges that the weapon used was a “shotgun.” The 5th ground complains that the trial judge expressed an opinion on the facts to the jury when the above-referred-to evidence was objected to, by saying, “Go ahead, a rifle is a shotgun.” Had these propositions been submitted to the writer a few months ago, he would have ruled that both objections were good, basing his ruling upon the general proposition that the material allegations in the indictment must be proved as alleged. However, he yields to authority and must now hold differently, for the question seems settled by the decisions of this court and our Supreme Court. In the case of Watson v. State, 21 Ga. App. 637 (94 S. E. 857), the indictment charged that the alleged •murder was committed by hitting and striking with á certain soda-water bottle. There was proof from witnesses for the defendant that the homicide was committed with a brick. Judge Cobb charged the jury: “If it should appear to you that the killing was done, not with a soda-water bottle, but with another instrument, of similar nature—a blunt instrument, which would inflict a wound of the same character of wuund.that might have been inflicted with a soda-water bottle,—if you believe this beyond a reasonable doubt, then that averment in the indictment would be sufficiently proved.” This court held that the charge given was not error. To this opinion the writer was reluctant to agree, but finally did so on account of the cases cited by Judge Harwell in his opinion, .and especially on account of the decision in the case of Trowbridge v. State, 74 Ga. 431, in which our Supreme Court said: “It is not indispensable to prove the precise weapon set forth in the indictment; it is sufficient if both were weapons likely to produce death, and were capable of inflicting the same character of injury.”

It now seems settled that the rule in Georgia is:.“The proof of the means of commission of a homicide or assault need not conform strictly to the averment, of such means in the indictment, provided the means of death or mode of applying the violence be the same in kind and agree in substance with those charged. As to the allegation of the instrument by which death is inflicted, or the assault committed, there is no variance where the proof shows that another instrument than that alleged was used, and where it was of a similar nature and caused the same character of wound or injury. The question in each case is whether the nature and character of the injury and the manner and means of inflicting it as proved is practically and substantially, though not identically, the same as that alleged. Thus evidence as to a dagger, sword, bayonet, hatchet, or other cutting instrument, has been held to support the averment of a knife; striking with a stick, club, metal bar, or pistol an allegation of striking with a rock; striking with' a piece of iron an allegation of striking with a piece of plank; shooting with a pistol, shotgun, riñe, musket, or any kindred weapon, an allegation of killing or assaulting with a gun; shooting with a gun an allegation of shooting with a pistol, and strangling with a scarf or cord an aver; ment of strangling or choking with the hands. Under an indictment charging the defendant with causing the death of the deceased by beating with a stick and whip, proof of beating with other similar instruments is admissible.” See opinion' of Judge. Harwell and cases cited in the Watson case, supra. In Hill v. State, 147 Ga. 650 (94 S. E. 213), our Supreme Court said “An indictment for murder charged that the accused shot and killed the named decedent ‘with a certain gun’ which the accused then -and there’ held. On the trial it appeared that the accused committed the homicide by shooting the decedent with a pistol. Held, that it was not cause for a new trial that the court told the jury that a pistol is a gun. State v. Barrington, 198 Mo. 23 (95 S. W. 235).” Under the. above rulings there is no merit in the 4th and 5th grounds of 'the motion for a new trial.

The 6th ground of the motion for a new trial is based upon the failure of the court to charge the jury on “one1 of the theories of defense.” This “theory” was based solely upon the statement of the defendant. “The court is not required'to charge upon a theory of defense arising solely from the statement of the accused, in the absence of a timely written request so to charge. Hardin v. State, 107 Ga. 718 (33 S. E. 700); Baker v. State, 111 Ga. 141 (36 S. E. 607); Gay v. State, 111 Ga. 649 (36 S. E. 857); Richards v. State, 114 Ga. 834 (40 S. E. 1001); Smith v. State, 117 Ga. 259 (43 S. E. 703); Johnson v. State, 4 Ga. App. 59 (60 S. E. 813).” Lott v. State, 18 Ga. App. 747 (90 S. E. 727). The general principle stated in this quotation is applicable also to the 7th ground of the motion.

In view of the entire charge of the court and the facts of the case, there was no error in failing to charge as complained of in the 8th ground of the motion, and none in refusing to charge as complained of. in the 9th ground thereof. „

“Where a correct charge is given, it affords no ground of attack upon the charge itself that the court failed to give, in connection therewith, some other principle or proposition of law. Cline v. Milledgeville Banking Co., 131 Ga. 611 (62 S. E. 984); Seaboard Air-Line Ry. v. Randolph, 136 Ga. 505 (71 S. E. 887).” Hicks v. State, 146 Ga. 221, 226 (91 S. E. 57). If a fuller charge was desired, a timely and appropriate written request should have been presented.

The evidence is ample to support the verdict.

Judgment affirmed.

Broyles, P. J., and Harmed, J., concur.


text:
    9843.
    Clements v. The State.
    Decided October 8, 1918.
    Certiorari; from Jones superior court—Judge Park. April 30, 1918. '

      R. C. Jenkins, R. I>. Stubbs, for plaintiff in error.

      Doyle Campbell, solicitor-general, contra.
   Broyles, P. J.

The answer of the trial judge to the petition for certiorari was neither traversed nor excepted to. The evidence, as set forth in the answer, with the legal inferences and deductions arising therefrom, authorized the finding of the trial judge, exercising by consent the functions of both judge and jury; and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9850.
    Baughn v. The State.
    Decided October 8, 1918.
    Accusation of misdemeanor; from city court of Savannah— Judge" Eourke. April 20, 1918.

      Robert L. Colding, for plaintiff in error.

      Walter C. Hartridge, solicitor-general, contra.
   Broyles, P. J.

The motion for a new trial contains only the usual general grounds. The verdict was authorized by the evidence and approved by the trial judge.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9853.
    Ashley v. The State.
    Decided October 8, 1918.
    Accusation of misdemeanor; from city court of Eastman--Judge Griffin. March 2, 1918.
    The accusation charged that on November 25, 1916, in Dodge county, Mack Ashley fraudulently contracted with J. J. Cadwell to perform for him services as a share-cropper on halves on a certain two-horse farm on lot of land No. 176 in the 13th district of that county, being the same farm on which said Ashley lived during the year 1916/it being contracted between them that the said Cadwell as landlord would furnish the mules, farming tools, and a half of the fertilizers and all necessary provisions for the use of said Ashley and his family, "and the said Mack Ashley obligated to furnish one half the fertilizer and the necessary labor to make and gather the crop, and was to receive one half the crop made on. said farm as his compensation, the said Mack Ashley agreeing to perform said services as such cropper during and for the year 1917, to begin January 1st, 1917, and to end December 31st, 1917, the said Mack Ashley so contracting with intent to procure money and other thing of value thereby, -and with intent not to perform the services contracted for, to the loss and damage of the hirer; the said J. J. Cadwell then and there, on the strength of the. contract so entered into with the said Mack Ashley, advanced said Mack Ashley” on November 25, 1916, and on given dates in December, 1916, certain described articles of clothing and provisions, of stated values, itemized, of the total value of $7.23; “and the said Mack, Ashley has failed to perform the services so contracted for, and has failed to return the things of value enumerated above, so advanced, with interest thereon at the time said labor was to be performed, without good and sufficient cause, and to the loss and damage of the said J. J. Cadwell, hirer aforesaid, in the said sum of $7.23; and the said Mack Ashley did obtain the aforesaid merchandise with the intent not to perform, the labor contracted for; the above-mentioned crops to consist of a two-horse farm, one half to be planted in cotton and the other half in corn and velvet beans; contrary to the laws of said State,” etc.
   Broyles, P. J.

1. Tlie court did not err in overruling the demurrer to the accusation. .

2. In a prosecution for violation of the “labor-contract act” of 1903 (Penal Code; § 715), the burden of proving that the accused did not have good cause for his failure to carry out his contract is upon the-State; and in the instant case this burden was not carried by the testimony of the hirer that the accused “had no good and sufficient reason” for not performing the services agreed upon, or for not returning the articles of value advanced by the hirer upon the strength of the contract. This statement amounted to a mere opinion or conclusion of the witness, which was not supported by proof of sufficient facts to give it probative value. Simmons v. State, 18 Ga. App. 65 (88 S. E. 800), and cit.

3. Por the reason given above, the verdict was not authorized by the evidence, and the court erred in refusing to grant a new trial.

Judgment reversed.

Bloodworth and Harwell, JJ., eoneu/r.

The demurrer was on the grounds: (1) No crime is charged. (2) The alleged contract is too vague, uncertain, and ambiguous to meet the requirements of the law. (3) The description of the place is too indefinite. (4) It is not clearly enough alleged whether the accused is being prosecuted under the first or the second division of the statute as to cheating by contract to perform services.

8. P. New, for plaintiff in error.

J. H. Roberts, solicitor pro tem., contra.


author: Bloodwoeth, J.

text:
    9881.
    Howard v. The State.
    Decided October 8, 1918.
    Accusation of unlawful possession of liquor; from city court of Columbus—-Judge Tigner. May 11, 1918.

      Pd. Wofilwender, Frank D. Foley, for plaintiff in error.

      T. H. Fort, solicitor, contra.
   Bloodwoeth, J.

1. In the excerpts from 'the charge of the court, complained of in the 1st, 2d and 3d grounds of the amendment to the motion for a new trial, there is no error sufficient to warrant the granting of a neW trial. Grounds 4 and 5 are specifically abandoned in the brief of counsel for plaintiff in error.

2. “There was some slight evidence authorizing the verdict; and, the verdict having been approved by th'e trial judge, under the repeated and" uniform rulings of this court and of the Supreme Court a reviewing court is powerless to interfere. When the verdict is apparently decidedly against the weight of the evidence, the trial judge has a wide discretion as to granting or refusing a new trial; but whenever there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Toole v. Jones, 19 Ga. App. 24 (90 S. E. 732). See McCarty v. Keys, 19 Ga. App. 494 (91 S. E. 875); Phillips-Boyd Publishing Co. v. Bird, 19 Ga. App. 808 (92 S. E. 287). Judgment affirmed.

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


author: Brovees, P. J.

text:
    9885.
    Ogletree v. The State.
    Decided October 8, 1918.
    . Indictment for assault with intent to murder; from Taliaferro superior court—Judge Walker. May 37,1918.
    ■ Colley & Colley, for plaintiff in error.

      B. C. Norman, solicitor-general, contra.
   Brovees, P. J.

1. Under the evidence submitted on the defendant’s motion for a continuance of the case, on the ground that he was physically unable.-to undergo the strain of a trial, it does not appear that the trial judge abused his discretion in overruling the motion. Moreover, the record shows that the defendant was present in court when the motion for a continuance was made, and the judge had the right to consider, in connection with the testimony adduced, the apparent physical condition of the defendant.

2. The court did not err in giving to the jury the following instruction: “The law does not require that before you find the defendant guilty you must find him guilty to a mathematical certainty; moral or reasonable certainty is all that the law requires.”

3-. The verdict was authorized by the evidence, and the court did not err in refusing the grant of a new trial.

Judgment affirmed.

Bloodworth and Barwell, JJ., concur.


text:
    9886.
    REEVES v. THE STATE.
    1. The law of voluntary manslaughter may properly be given in charge to the jury on the trial of one indicted for murder, where, from the evidence or from the defendant’s statement at the trial, there is anything deducible which would tend to show that he was guilty of voluntary manslaughter, or which would be sufficient to raise a doubt as to which of these grades of homicide was committed.
    2. The instruction that “a witness may be impeached by disproving the facts testified to by him” was not reversible error for the reason assigned,—that this method of impeachment was not attempted as to any of the witnesses.
    3. In giving in charge to the jury provisions of the code-section as to impeachment of a witness by proof of contradictory statements (Penal Code of 1910, § 1052; Civil Code, § 5881)-, it-was not error to omit the part of that section which relates to sustaining the witness by proof of general -good character. There was no such evidence of general good character of a witness thus attacked as would require an instruction as to sustaining a witness by such proof.
    4. When the entire charge of the court is considered, a new trial is not required on any ground assigned in the exceptions to excerpts from the charge.
    5. As to the defendant’s statements to another person in regard to the homicide, made near the body of the man he had killed, which the court excluded on the ground that they were self-serving declarations, and which it was contended were admissible as a part of the res gestie of the homicide, the ground of the motion for a new trial relating to their exclusion is incomplete, in not showing how near to the time of the homicide they were made. It should appear from the ground itself that they were “so nearly connected [with the homicide] in time as -to be free from all suspicion of device or afterthought.” Penal Code, § 1024.
    6. There was evidence sufficient to support the verdict.
    Decided October 8, 1918.
    Indictment for murder—conviction of manslaughter; from Pick-ens superior court—Judge Morris. May 11, 1918.

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

      Herbert Clay, solicitor-general, contra.
   Bloodworth, J.

In the ease of Cain v. State, 7 Ga. App. 24 (65 S. E. 1069), it was said: “It is well settled by repeated rulings of the Supreme Court and this court that on a trial for murder, if there is anything deducible from the evidence or the defendant’s statement that would tend to show manslaughter, voluntary or involuntary, it is the duty of the court to instruct the jury fully on the law of manslaughter. Crawford v. State, 12 Ga. 142 (6); Jackson v. State, 76 Ga. 473; Wynne v. State, 56 Ga. 113; Bell v. State, 130 Ga. 865 (61 S. E. 996); Strickland v. State, 133 Ga. 76 (65 S. E. 148); Pyle v. State, 4 Ga. App. 811 (62 S. E. 540). In the Crawford case, supra, the court strongly expresses itself on the subject, as follows: 'When a defendant is put upon trial for murder, and there is any doubt as to the grade of homicide of which he is guilty, it is the duty of the court clearly and distinctly to instruct the jury as to the law, defining the several grades of homicide as recognized by the' Penal Code, and then leave it to the jury to find from the evidence of what particular grade he is guilty.’ In Jackson v. State, supra, the court uses still stronger language, and holds that 'where there is evidence sufficient to raise a doubt, however slight, upon the point whether the case is murder or manslaughter, voluntary or involuntary, the court should instruct the jury upon these grades of manslaughter as well as murder.” See also Tanner v. State, 21 Ga. App. 190 (94 S. E. 67), and cases cited in the opinion. Applying the rules laid down above, the court committed no error in charging the jury on voluntary manslaughter.

Under the facts of this case, and in the light of the entire charge of the court, it was not reversible error, in charging on the impeachment of witnesses, to tell the jury “a witness may be impeached by disproving the facts testified to by him.” Penal Code, § 1051.

The 3d ground of the amendment to the motion for a new trial alleges error because the judge, in giving in-charge § 1052 of the Penal Code (1910), omitted therefrom the last clause, which reads as follows: “When thus impeached, he may be sustained by proof of general good character, the effect of the evidence to be determined by the jury.” The court was not required to give this part of the section in charge, when the only testimony which could be construed as tending to sustain a witness whose credibility was attacked by proof of contradictory statements as to matters material to the issue was as follows: “I know Wes Duncan. I don’t know a thing against him. I am acquainted with Duncan, but I don’t know very much about him. I am not intimately ac•quainted with him. I haven’t heard anything against Mr. Duncan. I have known him for a* number of years casually. I have never .been intimately acquainted with him. I don’t know that I ever .had any business dealings with him. As far as I know about Duncan he is all right. I wouldn’t hardly think I would believe him .on'oath in a court of justice. I said as far as I knew Mr. Duncan was all right, when you asked me out by the side of the courthouse'before coming up here. Yes, I told you I would believe him on oath, but possibly I had better change this a little bit and explain matters further. Maybe I don’t understand exactly what it means by not believing a man on oáth. I have never been a witness on a case of this kind or a witness against a man’s'character, ánd Mr. Wood asked me would I believe him on oath, and I told him I would, judging from general character and what I have really .known of him. I say now from what I hnow and from dealings I have had with him I would believe him on oath.” (Italics ours.) See, in this connection, Joyner v. State, 12 Ga. App. 217 (2) (77 S. E. 9); Gibson v. State, 20 Ga. App. 73 (93 S. E. 48).

When considered in connection with the entire charge of the court we find no error in any of the excerpts therefrom, of which complaint is made, that would authorize the grant of a new trial.

Each ground of the motion for a new trial must be complete within itself. Ground 11, while it shows that the conversation which it is claimed was erroneously ruled out occurred near the dead man, does not show when it occurred. Before this court can say it is error to rule out evidence as a part of the íes gestee, the ground of the motion must itself show that the declarations either accompanied the act or were “so nearly connected therewith in time as to be free from all suspicion of device or afterthought.” Penal Code (1910), § 1034.

There was evidence sufficient to support the verdict.

Judgment affirmed.

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


author: Brotles, P. J.

text:
    9897.
    Coppedge v. The State.
    Decided October 8, 1918.
    Indictment for assault with intent to rape—conviction of assault; from Bibb superior court—Judge Mathews. Mdy 31, 1918.

      W. D. McNeil, for plaintiff in error.

      John P.Boss, .solicitor-general, B. F. Birozier, O. T. Gower, contra. - . ■.
   Brotles, P. J.

1. Under all the facts of the case the- admission of the testimony of the prosecutrix, giving the substance of conversations between herself and two other persons, not in the presence of the defendant but within a few minutes after the alleged assault, was not erroneous, as the evidence authorized a finding that these third persons were eoeonspirators of the defendant, and that-the conversations were had at the instance of the defendant, for the purpose of intimidating the prosecutrix and concealing the crime. Moreover, a considerable portion of this testimony was admissible for the purpose of explaining why the prosecutrix failed to make prompt complaint against the defendant.

2. When considered in the light of the entire charge of the court, no harmful error appears in either of 'the excerpts complained of.

3. The conviction of. the defendant not depending entirely. upon circumstantial evidence, it was not error, in the absence of a timely written request, for the court to fail to instruct the jury upon the law of circumstantial evidence.

4. The court did not err in refusing to give ilie requested instruction set forth in the 8th special ground of the motion for a new. trial.' So-much of it as was applicable to the facts of the ease was sufficiently covered by the charge given.

5. The remaining special grounds of the motion for a new trial aie'without merit, and are not of such a character as to require elaboration ,of the ruling thereon.

6. The verdict is amply supported by the evidence, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9908.
    Purtell v. City of Atlanta.
    Decided October 8, 1918.
    Certiorari; from Fulton superior court—Judge Bell. April 12, 1918.

      Edgar A. Neely, for plaintiff in error.

      J. L. Mayson, S. B. Hewlett, contra.
   Broyles, P. J.

1. While some illegal evidence was admitted over the objections of the defendant, a new trial of the case 'is not required, since the legal evidence introduced demanded a finding by the recorder (exercising by virtue of his office the functions of both judge and jury) th^t the defendant had been carrying on the business of a private detective, or detective agency, within the meaning of sections 2024 and 2027 of the Code of the City of Atlanta of 1910, which make it an offense punishable by fine or imprisonment, or both, to engage in such a business without first obtaining a license as provided therein. And it was admitted by the defendant that he had not obtained such a license.

2. The judge'of the superior court did not err ino overruling the certiorari.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9627.
    Bailey v. The State.
    Decided October 9, 1918.
    Conviction of manslaughter; from Early superior court—Judge Highsmith, presiding.
    ' Parle & Stone, for plaintiff in error.

      B. T. Oastellow, solicitor-general, R. R. Arnold, contra.
   Bloodworth, J.

1. When considered in connection with the entire charge of the court, the excerpts complained of contain no error which would require that the verdict be set aside.

2. There was ample evidence to authorize a verdict of voluntary manslaughter.

Judgment affirmed.

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


text:
    9707.
    QUINN v. THE STATE.
    1. A ground of a motion for a new trial, as to the admission of testimony, is incomplete and will not be considered by this court, where the testimony to which it relates' is not set out therein and is referred to merely as the evidence of a named witness “with reference to getting whisky from some young men.”
    2. Where the trial judge promised that certain testimony which counsel for the accused had moved to, exclude, on the ground that it did not connect the accused with the crime for which he was being tried, would be excluded unless such connection were shown, failure to make any subsequent motion to exclude it could be treated by the court as a waiver of the objection, and failure to exclude it is not cause for a new trial.
    3. On the trial of one charged with having had unlawful- possession of whisky, and with the sale of whisky, the statement of a witness, that he “had seen others go to the place of business of defendant and come away with whisky,” was not subject to the objection that it was a conclusion of the witness. It was a statement of a fact admissible as a circumstance corroborative of other evidence.
    4. The charge of the court as to the first count of the accusation was sufficiently full. '
    5. Error in charging the jury on the second count of the accusation could not have harmed the accused, since he was found guilty on the first • count only.
    6. An instruction to the jury, in a case in which there are two counts in the accusation, that the verdict should be “guilty,” or “not guilty,” is harmless, -where the accused is found guilty on one count only.
    7. The charge of the court was sufficiently full as to the contentions of the accused, and did not unduly stress the contentions of the State.
    8. Failure to charge as to alibi was harmless. Such a charge, if authorized by evidence, could have been applicable only to the evidence on the second count, on which the accused was not found guilty.
    9. The ground of the motion for a new trial that the verdict “was not in accordance with the instructions of the court” will be treated as meaning that the verdict was contrary to law. Such a ground adds nothing to the general grounds of the motion.
    10. Granting that there was error in rulings as to other evidence, there was testimony by an unimpeached witness that he bought whisky more than once from the defendant; and this was sufficient to support the verdict.
    Decided October 9, 1918.
    Conviction of sale of liquor; from city court of Hazlehurst— Judge Knox. April 10, 1918.

      8. D. Dell, for plaintiff in error.

      J. Marie Wilcox, solicitor, contra.
   Bloodworth, J.

In the motion for new trial it is complained that "the court erred in allowing the evidence of the witness J. E. Yarn, with reference to getting whisky from some young man, to remain in the record after defendant’s counsel moved to exclude the same.” What this evidence is, “with reference to getting whisky from some young man,” is not shown in this ground of the motion, and our Supreme Court and this court have repeatedly held that a ground of a motion for new trial assigning error upon the admission of evidence will not be considered, unless the evidence is sufficiently set forth for the question of its admissibility to be determined without reference to other parts of the record. Pound v. Smith, 146 Ga. 431 (5), 436 (91 S. E. 405); Willbanks v. Byrd-Matthews Lumber Co., 146 Ga. 750 (3) 751 (92 S. E. 281); Bank of Norwood v. Chapman, 19 Ga. App. 709 (3) (92 S. E. 225); Copeland v. Ruff, 20 Ga. App. 217 (2), 218 (92 S. E. 955).

Where counsel for the accused moves to exclude certain testimony upon the ground that it does not connect the accused with the alleged crime, and the trial judge says, “I will exclude it unless . . [the solicitcogeneral] shows some cónnection with the defendant,” but no motion to rule it out is thereafter made, counsel for the accused will be held to have waived his objection, and it is not error for the judge to fail to exclude the testimony later on his own motion. Lindsay v. State, 138 Ga. 818 (7), 823 (76 S. E. 369); Cawthon v. State, 119 Ga. 395 (7), 396 (46 S. E. 897); Stone v. State, 118 Ga. 705 (9), 716 (45 S. E. 630, 98 Am. St. R. 145); Thurman v. State, 14 Ga. App. 543 (2) (81 S. E. 796).

The court did not err in permitting a witness to testify that he “had seen others go to the place of business of defendant and come away with whisky,” on the ground that this was a conclusion of the witness. This evidence was not a conclusion, but the statement of a fact which was clearly admissible as a circumstance corroborative of other evidence in the case. Reddick v. State, 15 Ga. App. 437 (2), 442, 443 (83 S. E. 675); Gary v. State, 7 Ga. App. 501 (3), 505 (67 S. E. 207); Bonner v. State, 2 Ga. App. 711 (58 S. E. 1123); Cole v. State, 120 Ga. 485 (48 S. E. 156).

There is no merit in the ground of the motion for a new trial that the court did .not charge the jury “the laws with.refer-., ence to the first ground in the accusation.” An examination of the charge of the court will show that the judge did charge, the. jury in reference to this “ground,” and if a fuller charge in reference thereto was desired, a proper and timely written request should have been made as provided by the statute.

5. Error is assigned on the charge of the court with reference to"the second count of the accusation. The jury having found the defendant guilty on the first count* only,- this was an acquittal of the crime charged in the second count, and even if the court committed error in his charge in reference to this count, it’could not have harmed the defendant. Hathcock v. State, 88 Ga. 91 (2), 97 (13 S. E. 959.).

Where an accusation contained two counts, and the judge instructed the jury, if “they were satisfied of the guilt of the defendant beyond a reasonable doubt, to return a verdict of ‘W'e, the jury, find the defendant guilty,’ otherwise ‘¥e, the jury, find the defendant not guilty.’ ” and the jury, notwithstanding this charge, found the defendant guilty on the first count only, the error in the charge could not have been harmful to the defendant. This ruling covers grounds 6 and 10 of the amendment to the motion for a new trial. '

There is no merit in ground 7. “While it is the duty of a judge in the trial of a criminal case to state the contentions of both the State and the defendant, still, in the absence of a request for more definite instructions, a statement by the court that the grand jury has returned an indictment against the defendant, charging him with the offense of murder, and that to this the defendant has filed a plea of not guilty, which makes the issue for them to-try, sufficiently presents the issue.” Faison v. State, 13 Ga. App 180 (79 S. E. 39). And see Wilensky v. State, 15 Ga. App. 360 (83 S. E. 276).

“The fact that the presiding judge stated in his charge, Tn two separate and distinct places,’ the language or substance of the indictment did not unduly emphasize the contentions of the State to the prejudice of the prisoner.” Mulligan v. State, 18 Ga. App. 464 (4), 468 (89 S. E. 541).

Besides, “The exception that the State’s contentions were •unduly stressed is not so presented as to submit anything for the consideration of this court, but would require a careful scrutiny and analysis of the entire charge of the court, and the language to which the exception is taken is not embodied in the motion.for a new trial as required by the decisions of the Supreme Court and of this court.” Roberts v. State, 16 Ga. App. 315 (4) (85 S. E. 285).

Even if evidence was of such a character as to authorize the court to charge on. alibi, the failure so to charge in the instant case was not harmful’to the defendant, as the charge could have been applicable only to the evidence on- the second count, and the defendant was acquitted on this count.

A ground of a motion for new trial which alleges that a new trial should have been granted’“because the verdict returned in said case was not in accordance with the instructions cf the court” amounts merely to a complaint that the verdict was contrary to law, and the general grounds of the motion cover this exception. Brannan v. McWilliams, 146 Ga. 528 (4) (91 S. E. 772); Seaboard Air-Line Railway v. Vaughn, 19 Ga. App. 397 (2a), 398 (91 S. E. 516); Georgia Northern Ry. Co. v. Sharp, 19 Ga. App. 503, 504 (91 S. E. 1045).

Granting that the trial judge erred in his rulings in reference to other evidence, there was direct and positive evidence, by an unimpeached witness, that the witness bought whisky more than once from the defendant, and this is enough to support a conviction.

Judgment affirmed.

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


author: Bdoodwoeth, J.

text:
    9719.
    Crone v. The State.
    Decided October 9, 1918.
   Bdoodwoeth, J.

1. The charge to the jury that “malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart” (Penal Code, § 62), was not' subject to exception on the ground that the judge erred in so charging “without going further and charging and instructing the jury that if considerable provocation appeared and all the circumstances' did not show that the killing was of an abandoned and malignant heart, no malice would be implied.” The accused was not convicted of murder, but was convicted of manslaughter; and for this reason the instruction on the subject of malice could not have been prejudicial to him. Simpson v. State, 12 Ga. App. 292 (77 S. E. 105); Gray v. State, 12 Ga. App. 634 (77 S. E. 916); Land v. State, 11 Ga. App. 761 (2) (76 S. E. 78). Moreover, “a correct and pertinent charge is not rendered erroneous by failure to give other instructions, appropriate to the case, in connection therewith.” Grimsley v. Singletary, 133 Ga. 56 (3), 57 (65 S. E. 92, 134 Am. St. R. 196). Western & Atlantic R. Co. v. Watkins, 14 Ga. App. 388 (4), 394 (80 S. E. 916) and eases cited.

2. Tlie court charged the jury: “It is the duty of a jury, in the investigation of a criminal ease, to consider along with the evidence the defendant’s statement; and after considering the entire case, all of the circumstances surrounding it and part of it under the law as given in charge by the court, then you determine what it is.” This is alleged to be error because the court did not explain what was meant by the expression' “then you determine what it is.” While this portion of the charge was subject to' criticism, yet, when considered in connection with the entire charge, we do not think it was calculated to mislead the jury to the prejudice of the defendant.

3. The evidence authorized the verdict, which has the approval of the trial judge, and this court will not interfere.

Judgment, affirmed.

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

Indictment for murder—conviction of manslaughter; from Habersham superior court—Judge J. B. Jones. March 15, 1918.

B. E. A. Hamby, T. L. Bynum, J. G. Edwards & Sons, for plaintiff in error.

Robert McMillan, solicitor-general, contra.


text:
    9740.
    Grigg v. The State.
    Decided October 9, 1918.
    Indictment for misdemeanor; from Ben Hill superior .court— Judge Crum. March 30, 1918.

      O. H. Elkins, J. H. Dodgen, for plaintiff in error.

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

1. The 1st, 2d, 3d and 4th grounds of the amendment to the motion for a new trial, being expressly disapproved, by the trial judge, can not be considered.

2. Where, in the presence of jurors selected and - empanelled in the trial of a criminal ease, the judge makes remarks to counsel which are of such a character as to prejudice the minds of the jurors against the defendant, a motion for a mistrial should be made; and upon the judge’s refusal to grant the motion, his ruling would be subject to review. If no such motion is made and the trial proceeds without objection, counsel can not, after verdict, raise in a motion for a new trial the question as to the prejudicial nature of the remarks complained of. Perdue v. State, 135 Ga. 277 (69 S. E. 184); Stapleton v. State, 19 Ga. App. 36 (13), 38 (90 S. E. 1029). Under this ruling the 5th ground of the amendment to the motion for a new trial' is without merit.

3. In the instructions excepted to there is no material error, when they are considered in the light of the entire charge of the court- and of the facts of the case.

4. In the absence of a timely written request for more specific instructions on theories of the defense elaborated in the 8th ground of the amendment to the motion for a new trial, the court did not err in failing to give such instructions to the jury.

5. The plaintiff in error must affirmatively show error. The fact that after the trial and on the same or the next day one of the jurors, when called as .a juror in another case, asked the court to excuse him from further service, stating that he was too hard of hearing to understand the evidence in a case, and the fact that the court thereupon excused him from further jury service, do not affirmatively show that he did not hear and understand the evidence in the instant case. The court did not err in overruling the ground of the motion for, a new trial based upon these facts.

6. The conviction of the defendant was authorized by the evidence and has been approved by the trial judge.

Judgment affirmed.

Bloodwortlt and Harwell, JJ., eóneur.


text:
    9823.
    Tatum v. The State.
   Broyles, P. J.

1. The questions attempted to be raised by the demurrer could properly have been raised only by a plea in abatement, since the accusation itself did not show that the person who made the affidavit which was the basis of the accusation was the solicitor of the city court who preferred and , signed the accusation; and the statement in the demurrer that the accusation was made by the said solicitor could not be considered. The demurrer was a “speaking” one, and was properly overruled.

2. The constitutional questions; even if they could have been presented in this case by demurrer, were not sufficiently raised, as no specific provision of the constitution was named as having been violated.. In connection with these questions see the recent decision of this court in Pinkney v. State, 22 Ga. App. 105 (95 S. E. 539).

3. The court did not err in overruling the defendant’s motion to exclude certain jurors from the panel put upon the accused, upon the ground that they had .been summoned as tales jurors by the deputy sheriff, who, the defendant contended, “was the real prosecutor in the case; that it was through his effbrts and acts that the case was made against the defendant”; that he was also' “a witness in the case, and that it was upon his testimony the State relied largely for a conviction.” In the'special ground of the motion for a new trial, complaining of this ruling, it is not stated that the contentions of the defendant were true.

4. Under repeated rulings of the Supreme Court and of this court, a ground of a motion for a new trial, complaining of the trial court’s refusal to exclude certain testimony of a witness, must set forth therein, or as 1 an exhibit thereto,'the evidence objected to.- Under this ruling the 3d, 4th, and 5th grounds of the amendment to the motion for a new trial can- .not be considered. ' ...

5. Under the facts of the case'the court did not err in admitting in evidence the two suit-cases tendered by the State.

6. It was not error for the court to refuse to direct a verdict for the defendant; A-refusal to direct a verdict is never error.

7. Since the proof showed that the offense of having, controlling, or possessing-intoxicating liquors was committed solely on-August 24, 1917, after the passage of the prohibition..law of 1917 (Acts 1917, Extraordinary Session, p. 7 and 8),, which.'became effective on March 28, 1917, the court did not err in failing to instruct the jury that “it was incumbent upon the State to prove that if this law had been violated, it must have been .done, between the 28th day of March, 1917, and the- date of . the filing of the accusation.” Adams v. State, 22 Ga. App. 252 (95 S. E. 877).

8. It is'a violation of the prohibition law of 1917 (Acts 1917, Extraordinary Session, pp. 7, 8) for. any person to have, control, or possess in this State any intoxicating liquors. It is not necessary, for a convie-. tion, .to show that the accused had, controlled, and possessed, them. Barbour v. State, 21 Ga. App. 243 (94 S. E. 272).

9. The evidence in this ease, while circumstantial; was sufficient to exclude every reasonable hypothesis save that of the guilt of the accused, and the court did not err in denying the motión for a new trial.

Decided October 10, 1918.

Accusation of misdemeanor; from city court of Blackshear— Judge Mitchell. April 19, 1918.

E. L. Bowen, W. A. Milton, for plaintiff in error.

S. F. Memory, solicitor, contra.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9873.
    JOHNSON v. THE STATE.
    On a trial for burglary, where the fact relied -upon by the State for a conviction is the defendant’s recent possession of articles stolen from -the burglarized premises on the occasion of the burglary, it is error for the court to instruct the jury that the burden is upon the defendant to show that he came by the stolen articles honestly.

    Decided October 10, 1918.
    Indictment for burglary; from Eulton superior court—Judge Hill. May 25, 1918.

      A. M. Brand, for plaintiff in error.

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

The defendant was on trial for burglary, and the fact,, relied upon by the State for his conviction, was that he was found in recent possession of articles stolen from the burglarized premises at the time of the burglary. In view of this fact, and of the further fact that the evidence did not demand the defendant’s conviction, the majority of this court hold that it was reversible error for the court to instruct the jury, in substance, that th.e accused must satisfy the jury that he came into possession of the stolen articles honestly. Falvey v. State, 85 Ga. 157 (11 S. E. 607); Cornwall v. State, 91 Ga. 277 (7), 283 (18 S. E. 154). The Writer, while agreeing that this instruction was inaccurate, .does not think that it requires a new trial when it is considered in the light of the charge as a whole.

Judgment reversed.

Bloodworth and Harwell, JJ., concur; Broyles, P. J., dissents.


author: Broodworth, J.

text:
    9640.
    Somers et al. v. The State.
    Decided October 10, 1918.
    Accusation of violation of prohibition law; from city court of Richmond county—Judge Black. March 18, 1918.

      0. A. Picquet, for plaintiff in error.

      W. I. Gurry, solicitor, contra.
   Broodworth, J.

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

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


text:
    9657.
    Gallaher v. The State.
    Decided October 14, 1918.
   Bloodworth, J.

1. There was no error in refusing to admit in evidence the letter referred to in the motion for a new trial. A letter not otherwise admissible was not made so “because the letter was received in due course of mail, . . the handwriting of the writer proved, . . and all of the ear-marks of the letter and the envelope in whieh it came showed that the letter, itself was genuine,” or “because the writer of the letter Was without the jurisdiction of the court,” or “because the letter corroborated the statement made by the defendant at the time of his arrest,” or “because the letter was the only evidence obtainable to establish the ownership of the trunk and the beverage contained therein,” or “because the absence of the. writer of the letter was fully explained by the letter,” or “because the letter was a confession on the part of the writer that the writer had committed the crime.” On the latter proposition, see Robison v. State, 114 Ga. 445 ( 2), 447 ( 40 S. E. 253), and cases cited.

2. In charging the jury as complained of in the motion for a new trial, the judge did not “intimate or express an opinion as to what had been proved.”

(a) Where the evidence showed that in the place of business of the defendant there was found a trunk containing several bottles of “whisky,” and the evidence that the bottles contained whisky was undisputed, it is not erroneous for the judge, in his charge to the jury, to refer to the liquid as whisky or liquor.

3. The instruction to the jury that they might “consider the ownership of this warehouse where this property was stored” could not have been harmful to the defendant, as one of the witnesses testified that “They did say that the place of business belonged to the cousin, who owned the trunk.”

4. While the evidence makes a weak case, this court has no authority to set aside a verdict which has the approval of the trial judge, when there is any evidence to support it; and there is some evidence to support the verdict in this case.

Judgment affirmed.

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

Accusation of violating prohibition law; from city court of Bichmond county—Judge Black. March 25, 1918.

Archibald Blackshear, W. D. Irvin, for plaintiff in error.

W. Inman Gurry, solicitor, contra.


text:
    9689.
    DeLoach v. The State.
    Decided October 14, 1918.
    Accusation of unlawful possession of liquor; from city court of Nashville—Judge Christian. April 8, 1918. .

      R. A. Hendricks, W. D. Buie, for plaintiff in error.

      H'. L. Jackson, solicitor, contra.
   Bloodworth, J.

The grounds of the motion for a new trial are without merit; there is evidence to support the verdict, and the court did not err in overruling the motion. .

Judgment affirmed.

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


text:
    9769.
    Gay v. The State.
    Decided October 14, 1918.
    Accusation of assault and battery; from city court of Dublin— Judge "Flynt. April 15, 1918.

      Fred Zea, for plaintiff in error. S. P. New, solicitor, contra.
   Bloodworth, J.

There is no merit in any of the grounds of the motion for a new trial. There. is ample evidence to support the verdict, and the judgment is Affirmed.

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


text:
    9774.
    King v. The State.
   Bloodworth, J.

1. On the trial of King on the charge of selling intoxicating liquor, the judge asked a witness: “Who was King accused of selling to up there, do you know?” This was not error for the .reason alleged, that it impressed the jury that the court believed that the defendant was guilty. “The court may properly propound questions to a witness on the stand, with a view to elicit the truth of the ease; and if in such examination the court does not express or intimate an opinion as to the credibility of the witness, or as to what has or has-not been proved, the mere fact that competent testimony of the witness so elicited may be detrimental to the interest of a party will not be cause for granting him a new trial. The questions which the court asked the witness, as set out in the motion for a new trial in the present case, were not calculated to impress the jury with the idea that the judge believed the party who gained the case in the court below should prevail.” Johnson v. Leffler Co., 122 Ga. 670 (7) (50 S. E. 488).

Decided October 14, 1918.

Indictment for sale of liquor; from Whitfield superior court-judge Tarver. April 10, 1918.

W. B. Mann, G. G. Glenn, W. 0. Martin, for plaintiff in error.

J. M. Lang, solicitor-generalcontra. ■

2. When considered in connection with the entire charge, there is no error, in any of the excerpts therefrom complained of.in the motion for new trial.

3. The evidence demanded the verdict.

Judgment affirmed.

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


text:
    9775.
    King v. The State.
    Decided October 14, 1918.
    Indictment for possessing intoxicating liquor; from Whitfield superior court—Judge Tarver. April 10, 1918.

      W. B. Mann, G. G. Glenn, W., 0. Martin, for plaintiff in error.

      J. M. Lang, solicitor-general, contra.
   Bloodworth, J.

The grounds of the’amended motion for a new trial'are without merit, the evidence demanded the verdict, and the motion for new trial was properly overruled.

Judgment affirmed.

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