text:
    8246, 8247.
    GEORGIAN COMPANY v. KINNEY ; and vice versa.

    1. The assignment of error in the main bill of exceptions is sufficient to give this court jurisdiction. Lyndon v. Georgia Railway & Electrie Oo., 129 Ga. 353 (58 S. E. 1047).
    2. Where a demurrer to a plea is sustained, and the defendant pleads over to meet the objections pointed out by the demurrer, he will not thereafter be heal'd to complain of the order sustaining the demurrer.
    3. “Where there is a conflict between the bill of exceptions and the transcript of the record, the conflict must be determined by inspection of the transcript. ”
    4. Section 6184 of the Civil Code of 1910 provides that a bill of exceptions may be amended and corrected from the record, by correcting any imperfection or omission of necessary and proper allegations, but there is no provision of law for amending the bill of exceptions not by the record, .but by agreement of counsel.
    5. Exercising the discretion given by law, this court declines to grant the request of the defendant in error to tax the plaintiff in error with ten per cent, damages for bringing the ease to this court for the purpose of delay.
    6. Where a contract provides that a party securing advertisements for a newspaper shall receive fifty per cent, of the gross receipts for such advertising, and the newspaper company is to collect the accounts therefor, and suit on the contract is brought against the newspaper company, and it admits collecting a certain amount on the contract and in part pleads that “it made a diligent effort to collect all sums due on all contracts turned in by said plaintiff,” and no evidence in the case is brought to this court, and the only reference thereto is contained in a bill of exceptions, where it is said, “the plaintiff introduced evidence to sustain the several allegations in his petition,” this court, on considering a cross-bill of exceptions in the ease, does not feel authorized to say that the judge erred in directing a verdict in favor of the plaintiff for a half only of the amount shown by the pleadings to have been collected.
    Decided April 9, 1917.
    Complaint; from Fulton superior court—Judge Ellis. December 23, 19Í5.
    Lee Kinney sued the Georgian Company on a contract, a. copy of which is as follows: “Agreement entered into this seventh day of February, 1911, between the Georgian Company, party of the first part, and Lee Kinney, party of the second part: It is proposed to publish on definite dates, to be fixed hereafter, but not later than July first, 1911, in the-daily Atlanta Georgian , and News, what shall be known as the triple tabloid supplements, to consist of one or more pages, to be published once a week for three consecutive weeks. It is understood that the party of the second part shall give the necessary time and attention and assume all expenses incident to the securing of the contracts for advertising to be published in said triple tabloid supplements; each contract to cover a minimum space of two inches single column to each advertiser, with a maximum space of one page; the rates to be as follows: $3.00 per inch for each insertion; $180.00 per page each insertion; size of page to be fifteen inches deep, four columns wide. It is agreed that a list of persons or concerns to be solicited for such advertising shall first be submitted to and accepted by the party of the first part, and the party of the first part has the right to refuse any contracts brought in by the party of the second part, and can not be bound by same unless such contracts are accepted by a duly authorized agent of the party of the first part. It is further agreed by the party of the first part that of the total gross receipts of money received for such advertising the party of the second part shall be entitled to fifty per cent, of the same; and it is further agreed that all checks received in payment of such advertising shall be made payable to the party of the first part.” The plaintiff alleged, that he proceeded “to secure contracts for advertising in accordance with said contract made with defendant, and the defendant accepted the same to the total amount of-$14,777; that under said contract it was the duty of defendant to collect the total amount of advertising from those who contracted for same and had their advertisements published; that he did not know the amount which had been actually collected upon said contracts, but alleged that it exceeded the sum of $7,000, and that a reasonable time had been allowed the defendant to collect the said sum. He asked for interest thereon at seven per cent, per anmrm, and prayed for recovery in the amount of $7,388.50, besides interest, the said principal amount being one half of the total amount of' the contracts accepted.
    The defendant filed lengthy pleas, admitting the making of the contract; that the plaintiff had secured and turned in to the Georgian Company advertising contracts to the amount of $14,777, and that of said amount $8,383 had been collected by defendant; and, by way of counter-claim, the defendant alleged that it had "been damaged by the wrongful acts of certain solicitors employed by the plaintiff to secure advertising, and asked for judgment against the plaintiff in the sum of $10,000. The plaintiff amended his petition, by adding thereto copies of three different kinds of contracts which his solicitors secured from three different classes of" advertisers. On each of these contracts was printed the following: “Conditions or representations not expressed on the original and duplicate are not holding.” Defendant admitted in an amended plea that the copies of these contracts were correct. The plaintiff filed general and special demurrers to the plea, and upon the hearing thereof practically all the grounds of the demurrer .were .sustained and the plea was stricken. Ten days were given the defendant in which to amend. The defendant redrafted his plea and filed the redrafted plea as an amendment to the original. The plaintiff renewed the demurrers originally filed, and added others, and upon a hearing thereon the court sustained the general demurrer to the counter-claim of the defendant, and sustained certain other grounds of the demurrer. After the filing of his amended plea the defendant, on July 2, 1915, filed a bill of exceptions pendente lite to the order sustaining the demurrer to the original plea, and on November 2, 1915, a bill of exceptions to the order on the demurrer to the amended plea. On the trial of the case the plaintiff, as stated in the main bill of exceptions, “introduced evidence to sustain the several allegations in his petition.” No evidence was introduced by the defendant. The judge directed a verdict in favor of the plaintiff for $4,140, principal (being one half of he amount collected), and for interest amounting to $746. The defendant excepted, and the plaintiff filed a cross-bill of exceptions.

      Anderson & Rountree, for Georgian Company.

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

(After stating the foregoing facts.)

(2) Is there any merit in the bill of.exceptions filed July 2, 1915? Defendant filed a plea with paragraphs numbered from 1 to 16. Plaintiff filed demurrers under which paragraphs 8 to 16 and parts of paragraphs 3 and 6 of the petition were stricken. This order was signed June 9, 1915, and gave the defendant ten days in which to amend. On June 19, 1915, defendant presented to the presiding judge an amendment, which was allowed and ordered filed, subject to demurrer. Several of the paragraphs of the amended plea were in the same language as those which had been stricken by the order of June 9, 1915. Others were added to, and still others had portions thereof eliminated therefrom. The evident purpose of these changes was to make the amendment cure the defects in the original plea which were pointed out by the demurrer. Where a demurrer to a plea is filed and sustained, and the defendant pleads over to meet the objections to the original plea pointed out by the demurrer, he will not thereafter be heard to complain of the order sustaining the demurrer. Glover v. S., F. & W. Ry. Co., 107 Ga. 34 (3) (32 S. E. 876); Hamer v. White, 110 Ga. 300 (34 S. E. 1001); Waller v. Clark, 132 Ga. 830 (64 S. E. 1096); Southern Cement Co. v. Logan Coal Co., 136 Ga. 475 (71 S. E. 915); A. C. L. R. Co. v. Hart Lumber Co., 2 Ga. App. 88 (2) (58 S. E. 316); Daniel v. Browder-Manget Co., 13 Ga. App. 392 (4), 394 (79 S. E. 237); Robertson v. Christenson, 90 Kan. 555 (125 Pac. 567). The decision in the case of Sikes v. Hurt, 18 Ga. App. 197 (89 S. E. 832), cited by counsel for the plaintiff in error, is not applicable to the facts in this case.

(3) Was the bill of exceptions pendente lite, dated November 2, 1915, filed in time? This bill of exceptions pendente lite alleges that the judgment sustaining the demurrers and excepted to was rendered on the 9th day of October, 1915. The main bill of exceptions refers to the exceptions pendente lite as filed on the 2d day of November, 1915, and alleges that the order sustaining the demurrer was passed on the 25th day of September, 1915. There is thus a conflict between the main bill of exceptions and the exceptions pendente lite, as to the date of the order. To settle this conflict we must turn to the transcript of the record. This shows that the order was signed “in open court this the 25th day of September, 1915.” “Where there is a conflict between the bill of exceptions and the transcript of the record, the conflict must be determined by inspection of the transcript.” James v. Cooledge, 129 Ga. 860 (4) (60 S. E. 182); Southern Ry. Co. v. Flemister, 120 Ga. 524 (48 S. E. 160).

(4) Where the bill of exceptions is filed in the appellate court December 15, 1916, the rule announced in the preceding headnote will not be changed by a “stipulation” signed by counsel representing the plaintiff in error and by counsel for the defendant in error, dated June 16, 1916', and which is as follows: “It is stipulated between counsel for the parties in the above case that the demurrers of the plaintiff to the amended answer of the Georgian Company, the defendant, were argued in the superior court of Fulton county, Georgia, before his honor Judge John T. Pendleton, on September 25, 1915; that at the conclusion of said argument the judge announced that he would sustain said demurrers; that the order sustaining the same was not at that time presented and signed; said order was to be prepared by plaintiff’s counsel. A carbon copy of the order as entered, bearing upon it the typewritten date September 25, 1915, was sent for inspection to counsel for the Georgian Company by counsel for the plaintiff, by letter dated September 29, 1915, which stated that the order, if satisfactory, would be thereafter presented for signature. The order as drawn was not objected to. It was not in fact presented until the 9th day of October, 1915, and was signed on said date, as is recited in the bill of exceptions pendente lite dated November 2, 1915. This 16th day of June, 1916.” The minutes of the superior court of Fulton county, as shown by the record in this case, show that the order referred to in the foregoing stipulation was passed on September 25, 1915, and that the superior court for that term adjourned on October 30, 1915 (see cross-bill of exceptions), more than thirty days from the date of the order and after the adjournment of the court for that term. If this court should consider the above-stated stipulation, the' effect would be to amend the bill of exceptions by it. This can not be done- by an agreement in conflict -with the record. It is true that in the case of Jinks v. Stale, 115 Ga. 243 (41 S. E. 580), the Supreme Court acted on an admission of counsel, made in that court, that a statement in the bill of exceptions was erroneous, but that was where the admission agreed with the record. In discussing the ruling in the Jinks case, supra, in the case of Board of Education v. Day, 128 Ga. 156 (57 S. E. 359), Mr. Justice Lumpkin said: “Although the bill of exceptions recited that the motion for new trial was heard and determined during the continuance of a term, an agreement of counsel that the term of court had adjourned was considered by this court. The matter of adjournment of the superior court was one of record. The clerk of the superior court could have been required to certify to this court when the adjournment was shown by the record to have taken place, and such certificate would have prevailed over a mere recital in the bill of exceptions oil the subject. The agreement of counsel, therefore, amounted in substance to supplying this matter of record.” Section 6184 of the Civil Code of 1910 provides that the bill of exceptions may be amended and corrected from the record by correcting any imperfection or omission of necessary and proper allegations, yet “there is no provision of law for counsel to agree that the bill of exceptions is wrong or lacking in material particulars, and to amend it, not by the record, but by the agreement. Such a practice might result in substantially having one bill of exceptions which the presiding judge certifies to be true and to present the case as it appeared before him, and quite a different bill of exceptions considered by this court.” Board of Education v. Bay, supra.

The wisdom of refusing to allow a bill of exceptions amended by such an agreement of counsel is clearly illustrated in this case. Counsel for the plaintiff in error in their brief contend that the stipulation shows that the proper date of the order is the 9th day of October, while counsel for the defendant in error insist that the same stipulation shows that the proper date of the order is the 25th of September. If the date of the order as shown by the record in the court below is erroneous, it should have been corrected by proper proceedings for that purpose. The order to which the exceptions were filed.bearing date September 25, 1915, the term of superior court then in session having adjourned on October 30, 1915, and the bill of exceptions pendente lite having been signed on the 2d day of November, 1915, and it not appearing that the same was tendered to the judge prior to this time, it can not be considered by this court, because it was not “tendered during the term,” nor did the court “adjourn within less than thirty days from the date of the ruling complained of.” Civil Code (1910), § 6151.-

(5) The foregoing rulings on questions of practice dispose of the questions raised in the bill of exceptions, but the plaintiff in error is not injured thereby. On account of the application to assess damages for delay, as well as to determine the preceding questions, we have carefully considered the ease, and find no merit in any of the pleas filed by the defendant, and find that the rulings of the trial judge were correct. However, not being convinced that this case was brought to this court for delay only, and exercising the discretion given us by the law, we decline to grant the request of defendant in error to tax the plaintiff in error with ten per cent, damages for delay.

Judgment affirmed on both bills of exceptions.

(6) The plaintiff filed a cross-bill of exceptions, alleging error, upon the refusal of the judge to direct a verdict in his favor for one half of the full amount for which contracts for advertising were received; for half the amount uncollected as well as half the collected accounts. The original suit was brought on a contract under which the defendant was to secure advertising for the plaintiff, the publisher of a daily paper. The portions of the contract pertinent to the issue raised by this cross-bill of exceptions are as follows:- “It is agreed that a list of persons or concerns to be solicited for such advertising shall first be submitted to and accepted by the party of the first part [Georgian Company], and the party of the first part has the right to refuse any contracts brought in by the party of the second part, and can not be bound by same unless such contracts are accepted by a duly authorized agent of the party of the first part. It is further agreed by the party of the first part that of the total gross receipts of money received from such advertising the party of the second part shall be entitled to fifty per cent, of same; and it is further agreed that all checks received in payment for such advertising shall be made payable to the party of the first part.” Defendant pleaded in part that “it made a diligent effort to collect all sums due on all contracts turned in by said plaintiff.” No evidence was brought to this court, either by the main bill of exceptions or the cross-bill of exceptions. The only reference to the evidence is contained in the main bill of exceptions, where it is said, “the plaintiff introduced evidence to sustain the several allegations in his petition.” Under these conditions we do not feel authorized to say that' the judge erred in directing a verdict in favor of the plaintiff for one half only of the amount shown by the pleadings to have been collected.

Broyles, P. J., and Jenhins, J., concur.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    8319.
    WOOTEN v. THE STATE.
    A defendant against whom a verdict is rendered in a criminal case has- a legal right to poll the jury, and if the right be demanded when the verdict is published and before the jury disperses, and before sentence is imposed, a denial of this right will be sufficient ground to set the verdict aside. The facts set out in the note of the trial judge in this case did not constitute a waiver of this right.
    Decided April 21, 1917.
    Indictment for seduction; from Jeff Davis superior court—Judge Highsmith. November 28, 1916.

      Chastain & Henson, W. W. Bennett, for plaintiff in error.

      A. V. Sellers, solicitor-general, J. H. Thomas, contra.
   Luke, J.

The defendant was convicted of the offense of seduction, and .after the verdict had been published and before the jury had dispersed, and before sentence, he demanded the right to poll the jury. This demand was refused, and the refusal was complained of in' the defendant’s motion for a new trial, the overruling of which is assigned as error. The trial judge, in a note to the bill of exceptions, makes the following statement as to his reason for refusing the request: “The above-stated case was submitted to the jury about four o’clock in the afternoon. About eight o’clock the jury reported that an agreement had been reached. Upon the jury coming into the court the court inquired if a verdict had been agreed upon, to which the jury replied in the affirmative; whereupon the verdict was received and published. The court thereupon inquired of counsel for defendant whether there was any reason why the record should not then be completed by sentence being pronounced, aiid counsel, replying in the negative, made to the court in the presence of the jurors, who had not left the box, a statement of some length, asking that the court show extreme leniency in imposing sentence. Counsel discussed the verdict of the jury recommending the defendant to the mercy of the court, and suggested' that the jury probably thought that this ease was one in which such recommendation would reduce the punishment to that of a misdemeanor, and called attention to the fact that while this was not the case the court had considerable latitude in fixing the penalty, mentioning that the punishment was from two to twenty years, and asking that the extreme minimum be imposed. The matter was discussed at considerable length by counsel for defendant, various suggestions and statements being made with respect to the punishment. After hearing'from counsel for defendant and after the lapse of some fifteen or twenty minutes, the court proceeded to enter upon some discussion of the ease before formally pronouncing sentence, and, among other things, stated that while the recommendation of the jury would be taken into consideration, the court would not assume that the jurors supposed that the case was reducible to a misdemeanor, inasmuch as no such matter was given them in charge, but would assume that the jury were undertaking simply to recommend the defendant to the mercy of the court, as expressed in their verdict; all of the above occurring in the hearing and presence of the jury. In the meantime the jurors trying the case had not been formally excused, nor had they left the box. At this point one of the jurors trying the case asked if he could speak to the court privately, and, upon the court stating that he could, came forward and stated publicly that he thought that the punishment would be by fine, and that there would be no imprisonment, and that he would not have agreed to the verdict except for this understanding and except for the statement by other jurors that the punishment would be by fine and would be very small; the juror also stating that nine of the jurors had been for conviction and that the other three wouldn’t have agreed except for the understanding that only a fine would be imposed. Upon this statement being made by the juror, counsel for defendant requested and moved that the jury be polled, which motion was overruled by the court upon the ground that while the jury had not been formally excused by such a statement being made to them by the court, that under all the circumstances the court considered the poll of the jury as having been waived by defendant, and that in the light of the statements made in the presence of the jury and the statement made by the juror, the jury was not then properly subject to be polled.”

, The right .to poll the jury should never be denied where demanded in time. The demand is always in time when made after the verdict is published and before the jury is dispersed, and before sentence. A waiver of the right should never be implied. Perhaps the statement of the juror that.he acted upon a misapprehension would not have been a sufficient reason for the court to refuse to accept the verdict of the jury, and require them to further deliberate, but this is not the question in this ease. The court committed reversible error in refusing the defendant’s demand that the jury be polled. McCullough v. State, 10 Ga. App. 403 (73 S. E. 546); Ponder v. State, 11 Ga. App. 60 (74 S. E. 715) ; Tilton v. State, 52 Ga. 478; Blankinship v. State, 112 Ga. 402 (37 S. E. 732); Brownlow v. State, 112 Ga. 405 (4) (37 S. E. 733).

Judgment reversed.

Wade, C. J., and George, J., concur.


author: Wade, O. J.

text:
    8335.
    Harris v. The State.
    Decided April 21, 1917.
    Indictment for larceny from house; from Marion superior court —-Judge Munro. December 16, 1916.

      W. D. Crawford, for plaintiff in error.

      C. F. McLaughlin, solicitor-general, George C. Palmer, contra.
   Wade, O. J.

1. The corpus delicti, as well as any other substantive fact in a criminal case, may be proved by circumstantial evidence; but where such evidence alone is relied upon to show a violation of a penal law, it must be “so conclusive as to exclude every reasonable hypothesis other than that a crime has been committed.” Ray v. State, 4 Ga. App. 67 (2), 70 (60 S. E. 816). There was no dii-eet evidence in this case that any cottonseed had been stolen, and the circumstances in proof were insufficient to establish the fact to the exclusion of every other reasonable hypothesis. The trial judge, therefore, erred in ovrruling the motion for a new trial.

2. The exceptions not dealt with above either relate to matters which can scarcely recur on another trial, or else need not be considered, in view of the foregoing ruling.

Judgment reversed.

George and Luke, JJ., concur.


author: George, J.

text:
    8412.
    Harris et al. v. The State.
   George, J.

1. Upon the trial of two defendants, jointly indicted, the court charged as follows: “The defendants, each of them; have made a statement in your hearing. You have the right to look to them and accept them as the truth of .the case, or you may reject the statements and look to the sworn testimony; or you' may accept them in whole or in part, or reject them in whole or in part. Give the statements just such force and effect as in your opinion the statements are entitled, to.” Held, that the charge is in substantial accord with the provisions of section 1036 of tlie Penal Code of 1910, and is not subject to any of the criticisms made upon it.

Decided April 21, 1917.

Indictment for burglary; from Emanuel superior court—Judge Hardeman. January 3, 1917.

I. W. Rountree, W. A. Damfier, Larsen & GrocJcett, for plaintiff in error.

2. To constitute one a principal in the second degree, he must not only be present when the crime was committed, but must aid and abet the actual perpetrator in the commission of the crime. One who is present when a crime is committed, but neither assists in its commission nor shares in the criminal intent of its perpetrator, is not guilty as principal in the second degree. Mere presence is not sufficient to render one an aider or abettor. Thornton v. State, 119 Ga. 437 (46 S. E. 640); Lowery v. State, 72 Ga. 649; Butler v. State, 11 Ga. App. 815 (76 S. E. 368). The charge of the court in the case at bar was in substantial accord with the foregoing well-established principle of law, and did not tend to confuse the jury.

3. The assignment of error upon the ground that the court unduly stressed the contentions of the State is without merit in this case. The judge was under the necessity to properly and correctly apply the law to the contention of the State, to wit, that the defendants on trial were not the actual perpetrators of the offense, but that they were present, actually or constructively, aiding and abetting the principal perpetrator in committing the offense. He did not undertake to give the contentions of the State further than was necessary in order to enable the jury properly to apply the law of the case to the theory presented by the State and referred to above.

4. The verdict is not without evidence to support it, and, having been approved by the trial judge, this court is without authority to interfere. Judgment affirmed.

TVade, O. J., and Lulce, J., concur.


text:
    8462.
    Shephard v. The State.
    Decided April 21, 1917.
    Conviction of assault and battery; from Jeff Davis superior court—Judge Highsmith. .December 37, 1916.

      8. D. Dell, for plaintiff in error.

      A. V. Sellers, solicitor-general, contra.
   Luke, J.

1. The newly discovered evidence was merely cumulative and impeaching in its character. Penal Code, § 1088.

2. The jury were the judges of the facts, and there was evidence upon which they could have found the verdict of guilty.

Judgment affirmed.

Wade, O. J., and George, J., concur.


author: 1’eb Curiam.

text:
    8519.
    Rivers v. The State.
    Decided April 21, 1917.
    Accusation of carrying concealed weapon; from city court of Leesburg—Judge Martin. January 17, 1917.

      Robert. R. Forrester, for plaintiff in error.

      J. B. Hoyt, solicitor, contra.
   1’eb Curiam.

1. The motion for a new trial having been overruled on January 17, 1917, and the bill of exceptions having been tendered for certification on February 13, 1917, the motion to'dismiss the writ of error must be sustained. Civil Code (1910), § 6153. ■

2. On account of the peculiar facts appearing as to the cause of the delay in tendering the bill of exceptions, this court, before entering the order of dismissal, examined into the merits of the case. No error of law is complained of, and the evidence was sufficient to sustain the verdict.

Writ of error dismissed.

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


text:
    8541.
    Espy v. The State.
   George, J.

1. Verdicts are to have a reasonable intendment, and are to receive a reasonable construction, and are not to be avoided unless from necessity. Penal Code (1910), § 1059. The verdict will be construed in the light of the maxim “Id certum est quod certum reddi potest.” Mosley v. State, 11 Ga. App. 1 (4) (74 S. E. 569).

2. Accordingly, where the defendant is indicted for the offense of assault with intent to murder by shooting at another wilfully and feloniously with a loaded gun, a verdict in the following form: “We, the jury, find the defendant guilty of shooting at another with intent to kill, and recommend him to the mercy of the court,” is not void for uncertainty, and a judgment may, by reference to the indictment, be rendered upon it for unlawfully shooting at another. Compare Arnold v. State, 51 Ga. 144, and cases there cited; Kidd v. State, 10 Ga. App. 147 (2) (75 S. E. 266). In the instant case the judge charged the jury that if they believed the defendant guilty of the offense of assault with intent to murder, the form of their verdict would be, “We, the jury, find the defendant guilty;” and that if they believed'the defendant guilty of the offense of unlawfully shooting at another, the form of the verdict would be, “We, the jury, find the defendant guilty of shooting at another.” The sentence imposed was under section 115 of the Penal Code (1910), fixing the punishment for the .offense of unlawfully shooting at another, and the defendant can not complain.

3. On the verdict in this case, quoted above, the court rightly, by reference to the indictment and in the light of the charge submitted, entered judgment against the defendant for unlawfully shooting at another. The verdict is not to be construed as a verdict of guilty of the offense of assault with, intent to murder, since one may unlawfully shoot at another with the intent to kill him, and not he guilty of the offense of murder if death ensue, or of assault with intent to murder if death does not occur. One may unlawfully and intentionally shoot and kill, and yet he guilty of manslaughter only. One may unlawfully shoot at another with the intent to kill, and yet be guilty of unlawfully shooting only. Malice may be inferred from the act of unlawfully shooting at another with the intent to kill him, yet, under the indictment in this case and in the light of the charge of the court, the verdict of the jury does not so find, but finds merely that the shooting was unlawful and done with the intent to kill, which alone, and in the absence of a finding that the shooting was also done with malice, is an acquittal of the offense of assault with intent to murder.

Decided April 21, 1917.

Conviction of shooting at another; from Floyd superior court—Judge Wright. February 17, 1917.

Pubanhs & Mebane, for plaintiff in error.

Glande H. Porter, solicitor-general, contra.

4. Error is assigned upon the failure of the judge to define murder and malice and to give in charge the law of voluntary manslaughter. This did not hurt the accused, for he was acquitted of the offense of assault with intént to murder, and the omission to define murder and malice is immaterial. The principles of the law of voluntary manslaughter were applied in behalf of the accused by the verdict finding him guilty of shooting at another. He could have derived no further benefit-from a full charge upon the law of voluntary manslaughter. See Kidd v. State, supra.

5. The venue was properly proved, and the evidence, including the defendant’s statement, ’ practically demanded a verdict of guilty.

Judgment affirmed.

Wade, 0. •/., and Luke, •/., concur.


author: Wade, C. J.

text:
    8543.
    ZOUCKS v. THE STATE.
    1. There was no “unwarranted denial of the right of cross-examination” in the refusal of the court to allow counsel for the accused to ask the prosecutor whether he was spanked when he was little. The fact that spanking in childhood had not knocked him senseless would not have been material for the purpose of impeaching his testimony that the blow of an ax on the hip by the defendant had knocZced him senseless.
    2. The admission of testimony as to the mailing of a letter of the prosecutor to the defendant’s employer was not cause for a new trial, there being no evidence as to the contents or purpose of the letter, and it not appearing that this testimony was harmful to the defendant.
    3. It appearing that the assault upon the prosecutor, for which the defendant was on trial, was committed on account of interference by the prosecutor with, the erection of a fence by the defendant on land to which the prosecutor claimed title and which he contended was in his possession, the deeds under which the prosecutor claimed title were admissible on the question as to his good faith in interfering with the erection of the fence, and his right to employ force necessary to prevent a trespass by the defendant, without thereby furnishing a lawful excuse for the battery committed by the defendant in protecting the fence.
    Decided April 21, 1917.
    Indictment for assault and battery; from McIntosh superior court—-Judge Sheppard. January 23,. 1917.

      ■ Charles M. Tyson, Paul E. Seabroolc, Travis & Travis, for plaintiff in error. W. F. Slater, solicitor-general, contra.
   Wade, C. J.

1. The prosecutor testified that he was knocked senseless by a blow on his hip from an ax in the hands of the defendant, and that the court declined to allow counsel for the accused to propound to this witness, on cross-examination, the following question: “Did your folks ever spank you when you were little?” Counsel thereupon stated to the court that the answer expected was that the prosecutor had been spanked when he was little, and that “the operation had not knocked the senses out of him.” The refusal of the court to allow this question is excepted to, on the grounds: (a) that “it was an unwarranted denial of the right of cross-examination;” (6) that “the question and answer were material, as tending to show whether or not said prosecutor was telling the truth; and such an answer as the court was at the time told by counsel for defendant was expected would have been material in the direction of impeaching the witness by his own statement;” and (c) that “the ruling of the court tended to impress the jury that the question of counsel was improper, and was calculated to lead the jury to think that the court sympathized with said prosecutor’s side of the case.” This ground of the motion for a new trial, being argued in the brief of counsel for the plaintiff in error, must be treated as seriously insisted upon. It is enough, however, to say that there is no substantial merit therein. None of the conditions surrounding the battery, or the consequences resulting therefrom, as depicted or suggested by the testimony of the prosecutor and other witnesses to the effect that the prosecutor was struck on the hip with an ax, or even by the statement of the accused that he “slapped him on the behind with the wide part of the ax, . . struck him back here, . . hit him on the left side with the ax, the' flat of it, just flatways,” could by the wildest stretch of fancy be analogized to the conditions or consequences associated with or resulting from the ordinary administration of a simple punitive spanking to an infant. The trial judge did not abuse his discretion in limiting the cross-examination in this particular.

2. There is no merit in the ground that the court erred in allowing the prosecutor to testify, over objection, that on the day preceding the day of the battery in question, he mailed a letter to the Georgia Land Company, by whom the defendant was employed and in connection with whose business the battery occurred. Irrespective of the objections urged as to this testimony, it does not appear that it was harmful to the accused, since no attempt was made to prove the contents or the purpose of the letter.

3. The court did not err in admitting certain documentary evidence, to wit, deeds under which the prosecutor claimed title to certain lands which the State contended he was in possession of, and upon which, the State further contended, the defendant was trespassing by erecting a fence thereon,,for interference with which the defendant committed the assault and battery. The good faith of the prosecutor in interfering with the erection of the fence by the defendant, and his right to employ so much force as might be necessary to prevent a trespass by the accused, without thereby furnishing a lawful and sufficient excuse for the battery committed by the latter in protecting the fence, being directly involved, any evidence of title in the prosecutor to the lands alleged to have been trespassed upon would be admissible. See, in this connection, Hately v. State, 118 Ga. 79 (44 S. E. 852); Alaculsy Lumber Co. v. Gudger, 134 Ga. 603 (2) (68 S. E. 427).

4. The remaining grounds of the motion for a new trial involve no' novel question, and are without substantial merit, or are practically abandoned by failure to argue them in the brief of counsel for the plaintiff in error. The evidence and the defendant’s statement fully authorized, if they did not demand, the verdict returned, and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

George and Luke, JJ., concur.


text:
    8554.
    McArthur v. The State.
    Decided April 21, 1917.
    Indictment for misdemeanor; from Jeff Davis superior court— Judge Highsmith. December 27, 1916.

      S. D. Bell, for plaintiff in error.

      Alvin V. Sellers, solicitor-general, contra.
   Wade, C. J.

1. “It is not an invasion of the exclusive province of the jury, to determine all questions of disputed facts, for the judge to charge them that the criminal act alleged against the defendant may be shown by circumstantial evidence, and that if certain specified incriminatory circumstances are proved, the jury would be authorized to infer guilt. In the case sub judice the court instructed the jury that if they believed it to be true, under the evidence, that the defendant and the man with whom she is charged with having committed the act of . . fornication were in bed together, that would be a circumstance that would authorize them to convict.” Radford v. State, 7 Ga. App. 600 (2) (67 S. E. 707).

2. Complaint is made that “the court erred in not charging the jury the law of confession.” This ground of the amendment to the motion for a new trial is without merit, since it is well settled that even if the evidence authorizes a charge on the law of confessions, the failure to instruct the jury on that subject, in the absence of an appropriate written request so to do, is not cause for a new trial. Wail v. State, 125 Ga. 234 (3) (54 S. E. 145). See also Patterson v. State, 124 Ga. 408 (52 S. E. 534) ; Walker v. State, 118 Ga. 34 (44 S. E. 850); Malone v. State, 77 Ga. 767 (5); Sellers v. State, 99 Ga. 212 (25 S. E. 178); Baker v. State, 14 Ga. App. 578, 582 (81 S. E. 805) ; Cooner v. State, 16 Ga. App. 539 (5), 540 (85 S. E. 688).

3. The grounds of the amendment to the motion for a new trial, other than those dealt with above, are not approved by the trial judge, and therefore can not be considered by this court. No error of law appears, the evidence authorized the verdict, and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

George and Luke, JJ., concur.


text:
    8560.
    Detmering v. City of Fayetteville.
    Decided April 21, 1917.
   Luke, J.

The petition for certiorari did not show that the bond provided for in the act of 1902 (Park’s Annot. Code, § 5191 (a)) had been given. Kendricks v. Millen, 16 Ga. App. 273 (85 S. E. 264) ; Hubert v. Thomasville, 18 Ga. App. 756 (90 S. E. 720). No error of law is complained of; and besides, the evidence authorized the conviction of the accused in the police court. Accordingly the court did not err in refusing to sanction the petition for certiorari.

Judgment affirmed.

Wade, O. J., and George, J., concur.

Petition for certiorari; from Fayette superior court—Judge Searcy. February 1, 1917.

Lester G. Diclcson, for plaintiff in error.

J. W. Culpepper, E. M. Owen, contra.


text:
    8561.
    Sams v. City of Fayetteville.
    Decided April 21, 1917.
    Petition for certiorari; from Fayette superior court—Judge Searcy. January 31, 1917.

      Lester G. Diclcson, for plaintiff in error.

      J. W. Culpepper, E. M. Owen, contra.
   Wade, C. J.

This ease is controlled, by the decision in' Detmermg v. Fayetteville, ante, 747.

Judgment affirmed.

George and Luke, JJ., concur.


text:
    8562.
    Stinchomb v. City of Fayetteville.
    Decided April 21, 1917.
    Petition for certiorari; from Fayette superior court—Judge Searcy. February 1, 1917.

      Lester Q. Diclcson, for plaintiff in error.

      J. W. Culpepper, E. M. Owen, contra.
   George, J.

The evidence was sufficient to sustain the judgment of the mayor finding the defendant guilty of disorderly conduct, and no error of law appears. Moreover, the bond attached to and made a part of the petition for certiorari in this case does not meet the requirements of the statute, and the judge of the superior court did not err in refusing to sanction the petition. See Detmermg v. Fayetteville, ante, 747.

Judgment affirmed.

Wade, G. J., and Luke, J., concur.


text:
    8563.
    Travis v. City of Fayetteville.
    Decided April 21, 1917.
   Luke, J.

This case is controlled by the decision in Detmering v. Fayetteville, ante, 747.

Judgment affirmed.

Wade, G. J., and George, J., concur.

Petition for certiorari; from Fayette superior court—Judge Searcy. February 1, 1917.

Lester 0. Dickson, for plaintiff in error.

J. W. Culpepper, E. M. Owen, contra.


text:
    8575.
    Burke v. The State.
    Decided April 21, 1917.
    Accusation of misdemeanor; from city court of Bainbridge— Judge Spooner. February 27, 1917.

      C. W. Wimberly Jr., for plaintiff in error.

      M. E.- O’Neal, solicitor, contra.
   Wade, C. J.

Under the particular facts in this case and in the light of the entire charge of the court, and considering further that no timely written request was made for any fuller or liiore specific charge than was given, there is no substantial merit in any of the assignments of error which complain of the admission of testimony, of certain excerpts from the charge of the court, and of the failure by the court to give other instructions. The evidence authorized the verdict, and the trial . judge did not err in overruling the motion for a new trial.

Judgment affirmed.

George and, Lulce, JJ., coneur.


text:
    8576.
    Morris v. The State.
    Decided April 21, 1917.
    Accusation of misdemeanor; from city court of Bainbridge— Judge Spooner. February 12, 1917.
    ■ C. W. Wimberly Jr., for plaintiff in error.

      M. E. O’Neal, solicitor, contra.
   George, J.

This ease' is controlled by the ruling in the ease of Burhe v. State, ante, 749.

Judgment affirmed,

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


text:
    8577.
    Davis v. The State.
    Decided April 21, 1917.
   Luke, J.

The evidence fully authorized the -conviction, and w error of law was committed in the trial.

Judgment affirmed.

Wade, 0. J., and George, J., concur.

' Accusation' of misdemeanor; from city court of Greenville— Judge Kevill. March 2, 1917.

N. F. Culpepper, for plaintiff in error.

J. F. Hatchett, solicitor, contra.


text:
    8598.
    Killian v. The State.
    Decided April 21, 1917.
    Indictment for assault witb intent to murder; from Floyd superior court—Judge Wright. March 7, 1917.

      John W. Bale, for plaintiff in error.

      C. H. Porter, solicitor-general, contra.
   George, J.

1. The court charged the jury that “Assault with intent to murder may be defined as an assault without justification and without any circumstances of mitigation, made by one person upon another, with a weapon in its nature likely to produce death, with the specific intent at the time unlawfully to take away the life of the person assaulted.” Held: This instruction is not subject to the exception that it excludes the necessary ingredient of malice; nor is it error because the court failed to define legal malice. Malice, in its application to the law of homicide, means the intent to take life without legal justification, excuse, or mitigation. If a killing take place as intended and if the killing is without justification, excuse, or circumstance of mitigation, legal malice exists, and the homicide is murder. Caudle v. State, 7 Ga. App. 848 (68 S. E. 343).

2. A correct statement of the law applicable to the case is not erroneous because the court failed in the same connection to give to the jury other and further instructions. Hill v. State, 18 Ga. App. 259 (89 S. E. 351), and cases there cited.

3. In the trial of a criminal case the failure of\the court to instruct the jury in express terms that they are the judges of the law and of the facts, that the law is to be taken from the court, and that, in weighing the testimony of the witnesses, their interest or want of interest, knowledge or want of knowledge, etc., is to be considered, is not reversible error, where no appropriate request was made for such instructions, and where the court correctly charged the law of the ease and submitted the issue to the jury. The court in this case fairly instructed the jury with reference to the weight and credit to be given to the defendant’s statement.

4. The further portions of the charge, defining the offense of stabbing, and submitting the question thereof to the jury, are without substantial merit. The defendant was indicted for assault with intent to murder by wilfully and feloniously stabbing another with a knife, and the evidence is sufficient to support the verdict. The court did not err in overruling the motion for a new trial.

Judgment affirmed..

Wade, C. J., and Luhe, J., concur.


text:
    8599.
    Rogers v. The State.
    Decided April 21, 1917.
    Accusation of carrying pistol without license; from city court of Tifton—Judge Price. March 3, 1917.

      Fulwood & Hargrett, for plaintiff in error.

      J. S. Bidgdill, solicitor, contra.
   Luke, J.

One charged with carrying a pistol without a license may successfully defend by showing a license granted by the ordinary of the county of his residence, in accordance with the statute. Acts 1910, p. 134; Park’s Penal Code, §§ 348 (a), 348 (b), 348 (c). Where the evidence showed that the defendant owned property in Walton county, and moved to Tift county in the early part of 1916, and in March, 1916, while in Walton county, procured the required license, proof that subsequently and within three years from the date of the license issued by the ordinary of Walton county he carried a pistol in Tift county, openly and fully expressed to view, will not be held to show such union of act and intention as is sufficient to authorize his conviction on the charge of carrying a pistol without a license. The court erred in overruling the motion for a new trial.

Judgment reversed.

Wade, O. J., and George, J., concur.


text:
    8607.
    Collins v. The State.
    Decided April 21, 1917.
    Indictment for sale of liquor; from Tattnall superior court-judge Sheppard. February 10, 1917.

      E. E. Elders, for plaintiff in error.

      W. F. Slater, solicitor-general, contra.
   Wade, C. J.

1. Under the particular facts of this case and the possible inferences deducible therefrom as to the bad faith of the defendant in making the motion for a continuance, and especially in view of his failure to show that he expected to “be able to procure the testimony of the witness at the next term of the court” (Penal Code, § 987), notwithstanding his testimony that he expected to show certain defensive facts by the absent witness at some time and place unnamed, this court can not hold that the trial judge abused his discretion in overruling the motion for a continuance.

2. The only special ground in the motion for a new trial is that dealt with above;, and the evidence amply supported the verdict.

Judgment affirmed.

George and Luhe, JJ., concur.


text:
    8606.
    Palmer v. The State.
    Decided April 21, 1917.
    Accusation of misdemeanor; from city court of Tifton—Judge Price. March 5, 1917.

      J. B. Murrow, for plaintiff in error.
    J. 8. Ridgdill, solicitor, contra.
   George, J.

1. No judgment of a trial court in a criminal case shall be reversed by either the Supreme Court or the Court of Appeals for lack of proof of venue or of the time of the commission of the offense, save where the particular point has been specifically raised by a ground of the motion for a new trial. Acts 1911, p. 149; Park’s Penal Code, § 1101 (a).

2. There being no specific assignment of error upon the ground that the State failed to prove the venue of the offense, that question can not be considered. The evidence, however, was insufficient to sustain the verdict. Judgment reversed.

Wade, G. J., and Lulce, J., concur.


text:
    8328.
    Dowdell v. The State.
    Decided April 24, 1917.
    Indictment for' larceny; from city court of Americus—Judge Harper. October 23, 1916.

      8hipp & Sheppard, for plaintiff in error.

      John A. Fort, solicitor-general, -Zach Childers, solicitor, contra.
   Luke, J.

The conviction being dependent on circumstantial evidence, and the evidence not being sufficient to identify the corn found in the defendant’s possession as the corn alleged to have been stolen, and to exclude every other reasonable hypothesis than that of his guilt, the verdict was unauthorized, and the court erred in overruling the motion for a new trial.

Judgment reversed.

Wade, G. J., and George, J., concur.


text:
    8354.
    PARTEE v. THE STATE.
    1. Where the defendant in a criminal case enters a general plea of not guilty, but interposes and relies upon a special defense, it is not error, requiring a new trial, for the trial judge, in his enumeration of the defendant’s contentions, to call the jury’s attention to the special defense.
    2. The charge of the court on the methods of impeachment referred to in sections 1051, 1052, and 1053 of tlie Penal Code of 1910 was warranted by the evidence.
    3. A party can not obtain a reversal for an error which he has invited.

      4. The evidence for the State, if believed, was sufficient to support a conviction of the offense of murder. The defendant having been found guilty of the lesser offense of voluntary manslaughter, a new trial will not be granted him, it appearing that the verdict was in conformity with the charge of the court given at his request.
    5. In the absence of a timely and appropriate request, the failure of the court to give instructions applicable to isolated facts and circumstances relied upon by a party to sustain his contentions is not error.
    6. A ground of the motion for a new trial complaining of the failure of the court to submit an instruction upon the law of justifiable homicide is not a good exception when it fails to point out what the trial judge should have charged, or why the omission to charge as suggested is error.
    Decided April 24, 1917.
    Indictment for murder—conviction of manslaughter; from Clarke superior court—Judge Brand. November 27, 1916.

      W. D. McNeil, G. L. Goode, Fermor Barrett, Thomas & Thomas, II. 0. Tuck, for plaintiff in error.

      W. 0. Dean, solicitor-general, J. B. Gamble, A. 8. Skelton, T. J. Brow’n, II. M. Dorsey, II. II. Chandler, B. B. Russell, W. R. Little, W. M. Smith, G. Bond, D. Davis, F. A. Stephens, contra.
   George, J.

T. S. Davis, Cohen Davis, and Alfred Davis, three brothers, were in the town of Lavonia, Georgia, in the afternoon of October 23, 1915, for the purpose of attending a show. Just before the beginning of the show Cohen Davis engaged in a difficulty with Pike Whitworth. He accused Whitworth of calling him a vile name, and slapped his face. Spectators interfered and Davis went with a friend into the circus tent. Inside the tent he and his two brothers were seated on the lower seats, awaiting the beginning of the performance. It appears that one Tribble had reported the difficulty between Cohen Davis and Whitworth to policemen Ledford and Weldon. These officers, together with J. W. Partee, the defendant in this case, entered the tent and approached the three Davis boys. The State contended that when the officers approached them Ledford said to Cohen Davis, “Cohen, let me see you a minute,” and, reaching over, attempted to pull him out of his seat. Tom Davis arose, and, placing his hand on the officer’s shoulder, requested that he be allowed to make bond for his brother. Ledford declined to accept bail, and continued his efforts to carry Cohen Davis from the tent. At this time Weldon struck Cohen Davis with a walking cane one or more times over the head and the shoulders. Partee was standing on the right of Ledford and Weldon. He stepped around and behind these officers. Tom Davis had withdrawn his hand from the officer’s shoulder and reached down, apparently to take hold of his brother Cohen, who was still seated. As Partee reached the left side of the officers, and just as Tom Davis leaned forward with his back to the officers and to Partee in particular, Partee drew a pistol from his pocket, pointed it directly at Tom Davis, and fired twice. Several witnesses testified that the pistol in the hands of Partee, at the time it was fired, was about two feet from Tom Davis’s body. The latter walked a few feet, sank to the ground, was taken from the tent, and died a few minutes later. During the shooting which followed the slaying of Tom Davis, his brother Cohen was killed, and officers Led-ford and Weldon also received wounds. Ledford and Weldon were not present at the difficulty between Cohen Davis and Whitworth, outside the tent. No warrant had been issued for the arrest of Davis, and he was not endeavoring to escape. He was committing no offense at the time of the attempt to arrest him. It was contended by the defendant that when the officers approached Cohen Davis the three Davis brothers arose almost simultaneously, drew their pistols, and began firing. The evidence offered by the defendant upon his trial was to the effect that Weldon shot and killed both Tom and Cohen Davis. According to the defendant’s evidence and his contention, when the officers approached the Davis boys there was a general fight between the three Davis brothers on the one hand and the two arresting officers on the other; the defendant did not participate in the fight, and did not shoot the deceased. Immediately after the shooting the defendant left the scene of the killing. That night he boarded an engine of a passing train, concealed himself in the tender or coal-box, and was not again seen in Lavonia until after his arrest in the State of South Carolina. A discussion of the evidence in detail is unnecessary. The trial of the case consumed four days. The evidence for the State, if credible, made an unprovoked case of murder against the defendant. The evidence for the accused and his statement, if believed, established a case of justifiable homicide. It is doubtful if voluntary manslaughter is in the case. The defendant, however, requested the court to charge on manslaughter, and the jury found him guilty of that' offense.

1. In the first and seventh grounds of the amendment to the motion for a new trial it is complained that the court, in the charge to the jury, restricted them to a consideration of whether the defendant or the policeman Weldon killed the deceased; and that the instruction given was not adjusted to the evidence and was prejudicial to the accused, because there was testimony tending to show that some person or persons other than the accused or the policeman might have killed the deceased. The presiding judge certifies that the defendant contended upon the trial that the deceased was shot and killed by the officer Weldon, and not by the defendant. From a close scrutiny of the charge it appears that the court, in the excerpts to which exceptions are taken, was stating the contention of the defendant, for the purpose of applying the law thereto. We think the first headnote of this decision announces a sound principle. If the defendant, under a general plea of not guilty, interposes a specific defense, the trial judge, in his charge to the jury, is authorized to instruct them upon that defense. It is the duty of the trial judge to deliver instructions appropriate to every phase of the evidence, without regard to whether a particular view of the case may or may not have been insisted upon by the defendant; but it is quite apparent that there is no merit in the contention presented in these grounds of the motion for a new. trial. The jury, under the evidence in this case, could only find that the killing was done either by the defendant or the officer Weldon. Any other finding would amount to mere conjecture. Counsel for the plaintiff in error, in the brief filed in this court, used this language: “There was only one issue in this ease—did Partee kill Davis, or was Weldon the author of the shooting?” We think counsel have rightly conceived the facts of this record, and we are equally certain that the plaintiff in error and his counsel have no right to complain that the trial court instructed the jury upon a theory which they specifically and consistently insisted upon throughout the trial of the case, and still urged upon this court on a review of the case.

2. The statement made in the second headnote disposes of the fourth ground of the amendment to the motion for a new trial. The State attempted to impeach certain witnesses of the defendant by the three methods referred to in sections 1051, 1052, and 1053 of the Penal Code of 1910. The evidence for the State tended to disprove certain facts testified to by certain of the defendant’s witnesses; contradictory statements were shown to have been made by certain of them, and it is conceded by counsel for the plaintiff in error that proof of the general bad character of at least one of the witnesses introduced by the defendant was offered.

3, 4. In grounds 2 and 3 of the amendment to the motion for a new trial it is complained that the court committed error harmful to the defendant in charging the law of voluntary manslaughter. In grounds 5 and 6 of the amendment it is complained that the court erred in charging upon the law of justifiable homicide, and in failing especially to instruct the jury as to the circumstances under which the defendant would have been justified in taking the life of the deceased in the protection of the two arresting officers. In regard to the exceptions taken to the instructions upon the law of justifiable homicide the judge certified that “it was only by request of defendant’s counsel that the court made any charge upon the subject or defense of justifiable homicide based upon the theory that Partee shot, and therefore the court was extremely cautious not to embrace in this charge anything upon this subject not requested.” When it is .recalled that the defendant contended upon his trial, and contends here, that he did not shoot at all, the fairness of the trial judge, in confining his instructions to the request as made by counsel for the defendant, is manifest. A charge detailing the circumstances under which Partee would have been justified in shooting to protect the life of the two arresting officers would have been at once unfair and subject to the criticism that it amounted to an intimation of opinion on the part of the court that Partee did in fact shoot and bill the deceased. According to the notes of the trial judge, all the charges excepted to were given upon the express request of counsel for the defendant, with the single exception of the charge relating to the impeachment of witnesses. Not only is this fact stated after each ground of the motion relating to these instructions, except that relating to impeachment, but in the approval of the grounds this statement by the court appears: “During the four days’ progress of this trial not an adverse ruling to the defendant was made by the court. The court omitted to charge nothing in behalf of the defendant to which its attention was called by defendant’s counsel, and nothing was charged, of which complaint is made in said amended motion, which was not charged at the request of defendant’s counsel, except and save only ground 4, with reference to the impeachment of witnesses.” Even if, as now contended by the plaintiff in error, the evidence made only a case of murder or of justifiable homicide and no middle ground appears in the record, the plaintiff in error can not complain because the judge, in compliance with his express request, charged on the subject of voluntary manslaughter; nor can he have a reversal of the judgment in his ease for an error in the charge of the court upon the law of justifiable homicide which he himself expressly invited. This simple statement appears to be incontrovertible.

In Hicks v. State, 105 Ga. 627, 631 (31 S. E. 579), this statement appears: “ One ground complains of the charge given on the subject of confessions, but the trial judge certifies that this charge was given at the request of counsel for the accused. This being true, counsel are estopped to assign error thereon.” In Howard v. State, 115 Ga. 254 (41 S. E. 654), it was said: “So it must be ruled, as a matter of law, that where, in the trial of a person charged with a crime, that person through his counsel submits to the judge certain written instructions which he desires given to the jury, he can not afterwards be heard to complain that the judge gave the instructions as requested, even if such instructions were erroneous. A new trial'can not, therefore, be granted on this ground of the motion.” In Horton v. State, 120 Ga. 307 (47 S. E. 969), this language occurs: “A party can not obtain a reversal for an error which he has invited, as by a request to charge, or by formal admission that a given' principle is not involved in the case.” In Quattlebaum v. State, 119 Ga. 433 (46 S. E. 677), it was ruled that “A party can not obtain a reversal for an error which he has himself invited. . . The defendant was found guilty of voluntary manslaughter; and even if, as contended by him, the evidence made out a case of murder or justifiable homicide, he can not complain because the judge, in compliance with his oral and written requests, charged on the subject of voluntary manslaughter.” In Hopkins v. State, 119 Ga. 569 (46 S. E. 835), it was ruled that, “the defendant having been found guilty of the lesser offense of shooting at another, a new trial will not be granted, it appearing that the verdict was in conformity with a charge given at his request;” and it was there said: “It is assigned as error that the verdict is contrary to law and the evidence; the plaintiff in error- insisting here that he should have been found guilty of assault with intent to murder, or not guilty. There was evidence to warrant the charge in reference to shooting at another. But in any event the defendant can not complain of a verdict which was rendered in conformity with a charge requested by himself.” The writer has not overlooked the decision of this court in Griggs v. State, 17 Ga. App. 301 (16), 309 (86 S. E. 726). The decision in the Griggs case is to the effect that a request by the defendant in a criminal case for a specific charge will estop him from complaining that the charge given upon his request was unauthorized by the evidence, but that a defendant may nevertheless insist, under the general ground of his motion for a new trial, that the verdict is contrary to law, where the evidence for the State, if believed, makes out a case of murder, and the evidence for the defendant and his statement, if accepted, make a clear case of justifiable homicide. A verdict of manslaughter in such a case is said to be without evidence to support it and, therefore, contrary to law. Where the evidence for the State, if believed, makes a case of murder, and where the evidence for the defendant and his statement, if credible, make a case of justifiable homicide, a verdict of manslaughter, under a charge of the court on manslaughter, given upon the .express request of the defendant, is not without evidence to support it and is not contrary to law merely because the superadded ingredient of malice has been shown by the proof. If the evidence authorizes a conviction of murder, but upon his own invitation the defendant is convicted of the lower grade of homicide,—manslaughter,—the verdict against him is not without evidence to support it. The defendant has committed the crime of which he was convicted: He, by his own request, made in open court, injected into his ease the law of manslaughter. The evidence proves him guilty of everything alleged in the indictment. It does all this, and the only objection is that it superadds to the facts thus found that the killing was with malice aforethought. In such a case, although there is nothing in the evidence or in the defendant’s statement to warrant the charge on manslaughter, the defendant has no reasonable ground for complaint. He is none the less guilty of manslaughter because perchance he committed the offense of murder. Estoppel, in a strict sense, has nothing to do with the matter. The law requires consistency both in substance and in procedure. A decent regard for the orderliness of the trial compels this conclusion. So far as anything in the decision in the Griggs case, supra, is not in accordance with this view, it will not be followed. Chief Judge Wade, who wrote the opinion in that case, concurs in this ruling, on the authority of Hopkins v. State, supra.

5, 6. Headnotes 5 and 6 require no elaboration. There is no complaint of any ruling admitting or rejecting testimony. All of the alleged errors depend upon criticisms on disjointed excerpts from the charge, injected into the case by the express request of the plaintiff in error; with two exceptions to which reference is made in headnotes 5 and 6. The language of Chief Justice Bleckley in Brown v. Matthews, 79 Ga. 1 (4 S. E. 13), is peculiarly appropriate: “A charge, torn to pieces and scattered in disjointed fragments, may seem objectionable, although when put together and considered as a whole, it may be perfectly sound. The full charge being in the record, what it lacks when divided is supplied when the parts are all united. United they stand, divided they fall.” The judge did not err in overruling the motion for a new trial. Judgment affirmed.

Wade, G. J„ and Luke, J., concur.


text:
    8420.
    WILSON v. THE STATE.
    1. Section 513 of tlie Penal Code (1910), which provides a penalty for wrecking or attempting to wreck “a railroad train, locomotive, car, coach, or vehicle of any kind, when used or run on any railroad-track for the purpose of travel or transportation," includes cars of a street-railroad operated by electric power, as well as cars of a railroad oper- . ated by steam power.
    2. On the trial of one charged with the offense of wrecking a street-car by the use of dynamite, it was competent to prove the fact of injury to a passenger thereon. The nature and character of the injury was relevant for the purpose of illustrating the character of the explosive used.
    3. Upon the trial of a criminal case the presiding judge may ask of a witness under examination any proper question in a proper manner. If the question be pertinent, but the response disclose irrelevant and immaterial testimony, counsel should move the court. to exclude the answer.

      4. A statement of an officer to one accused of crime, to tlie effect that it would be better for him to tell the truth about the case, does not necessarily, as a matter of law, render inadmissible as evidence a confession of guilt, made in the circumstances disclosed by the present record. With reference to confession evidence, what the law altogether abhors is the testimonial untrustworthiness of the confession. If the inducement is sufficient by possibility to elicit an untrue confession of guilt, then the confession.is to be rejected; otherwise it is to be admitted under proper instructions from the court.
    5. The evidence was sufficient to warrant the verdict of guilty, and the court did not err- in overruling the motion for new trial.
    Decided April 24, 1917.
    Indictment for wrecking car; from Fulton superior court— Judge Hill. December 8, 1916.

      O. P. & Ernest G. Bentley, F. A. Hooper, for plaintiff in error.

      John A. Boylcin, solicitor-general, E. A. Stephens, contra.
   George, J.

1. The plaintiff in error was indicted under § 513 of the Penal Code (1910). Omitting formal parts, the indictment is as follows: “Said accused, in the county of Fulton and State of Georgia, on the 7th day of November, 1916, . . , with force and arms, did, by the device, use, and employment of dynamite, wreck and attempt to wreck a street-railroad car and coach of the Georgia Bailway and Power Company, a corporation, said car and coach being then and there used and run on and upon the railroad tracks of the said Georgia Bailway and Power Company in Fulton county, Georgia, for the purpose of travel and transportation.” It is contended that the act of October 13, 1885 (Acts of 1884-5, p. 131), from which § 513 of the Penal Code was taken, does not apply to the dynamiting of a street-car, but refers only to such railroads as were used for travel in this State in 1885, and since no electric railroads were then in operation in this State, electric railroads were not in contemplation of the legislature at the time of the passage of the act. So much of this section of the code as is relevant to the question here raised is as follows: “Any person who shall, by any device whatever, wreck, or attempt to wreck, a railroad train, locomotive, car, coach or vehicle of any kind when used or run on any railroad-track for the purpose of travel or transportation, or assist or advise it to be done, shall be punished with confinement in the penitentiary for life, unless the jury trying the case shall recommend the prisoner to mercy.” The precise question here raised has not been determined by the Court of Appeals or the Supreme Court of this State. Section 522 of the Penal Code (1910) is as follows: “If any person shall wilfully and maliciously destroy, or in any manner injure or obstruct, or shall wilfully and maliciously cause, or aid and assist, or counsel or advise any other person to destroy, or in any manner to injure or obstruct, any railroad or branch thereof, or any bridge connected therewith, or any vehicle, edifice, right, or privilege granted by charter, and constructed for use under authority thereof; or if an unauthorized person shall turn, move, or in any manner interfere'with any gate, switch, sideling, or other appurtenances to any such railroad, he shall be imprisoned in the penitentiary not less than four nor longer than eight years.” By comparison, it will be noted that the section last quoted has direct reference to the track of a railroad company, and by its express terms refers only to railroads; while § 513, under which the plaintiff in error was indicted, refers to the rolling stock used for the purpose of travel or transportation upon the tracks of a railroad company. The statute from which § 522 was taken was enacted in 1837, and in Price v. State, 74 Ga. 378, it was held to apply to a street-railroad operated by horse-power, though no such species of railroad existed when the act was passed. If that statute applies to a street-railroad operated by horse-power, although no such railroad was in existence when the act was passed, it would seem to follow that § 513, providing a penalty for wrecking cars operated upon a railroad for the purpose of travel and transportation, applies to cars operated on a street-railroad by electricity, whether electric-cars were in operation in this State at the time of the passage of the act of 1885 embodied in this section or not. • Moreover, while electricity may not have been in actual use in this State as a motive power for cars on street-railroads before the passage of this act, its use for this purpose had been expressly authorized by legislative charter in this State (see acts of Dec. 12 and Dec. 24, 1884, Acts 1884-5, pp. 191, 194), and electric street-railroads were in operation in other parts of this country. The provisions of the Civil Code respecting the right to recover of a railroad company for negligent injury to, or negligent homicide of, passengers, employees, and other persons, have generally been held to apply to street-railways, whether operated by horse power, electric power, or steam power. Savannah &c. Railway v. Williams, 117 Ga. 414 (43 S. E. 751, 61 L. R. A. 249), and cit. If in the act of 1885 the legislature used language broad enough to include street-cars propelled by electricity, and if such cars were within the spirit of the act, the courts have no right to restrict the meaning of the act and say that it does not apply to street-cars, whether operated by horse, steam, or electric power. The word “railroad” in the act of 1885 was generic, as it is now, and broad enough to take in the new species as they arise from time to time. Moreover the legislature knew, and, it must be presumed, was satisfied with, the construction placed upon the meaning of the word “railroad” by the Supreme Court of this State, and was willing ■ to re-enact this section in the codes of 1895 and 19Í0 in the light of the express or implied definition of the word “railroad” as contained in the section. No sufficient reason occurs to us, nor has any been advanced by able counsel, why the provisions of § 513 do not apply as well to á ear propelled by electric power and used for the transportation of travelers as to a car propelled by steam power.

2. The court allowed a witness for the State, over the objection that the testimony was illegal and irrelevant, to testify as follows: “I was hurt when the explosion occurred on November 7th on North Boulevard. I was a passenger on that car. My head was. cut by some glass from the window, and it made it bleed a little, and my sister was sitting next to me and she had her ankle sprained and bruised. We were blown up, etc. Mr. Porter was sitting in front of us and he was hurt.” Porter testified as follows : “The doctor says my ankle was not broken, but was severely bruised. I have been using these crutches continually ever since, and it will be some time yet before I can go without them.” The same objection was urged to his evidence. In Hobbs v. State, 8 Ga. App. 53 (68 S. E. 515), a distinction is made between § 513 and § 522 of the Penal Code, on the ground that § 513 applies to wrecking and attempting to wreck cars, and § 522 to obstructing the track of a railroad company. It has also been held that the intent to wreck a ear must be proved, in order to establish an attempt to wreck. See Nowell v. State, 94 Ga. 588 (21 S. E. 591). The burden was therefore on the State to show that it was the defendant’s intention to wreck the car rather than obstruct the track. The direct result of his act was both relevant and material. ' Injury to passengers may be regarded as a part of the res gestee of the wrecking of the ear. The evidence of injury to passengers bore directly .upon the material questions involved in the case. The defendant, inferentially at least, attempted to show that the car , was not wrecked by means of dynamite, as alleged in the indictment. The effect of the explosion upon the car, including the effect upon the passengers riding'therein, is of some relevancy in the ease. The character of the injuries may be relevant as illustrating the kind of explosive used, or whether any explosive was used. On this point it would have been more satisfactory if the court had eliminated the evidence with regard to the probable duration of the injuries inflicted upon the passenger, Porter, sworn upon the 'trial'of the case. There was no motion to exclude this particular-evidence alone. We can not say that the evidence admitted in the instant case was wholly irrelevant and immaterial; if relevant and material, the fact that it may have affected the defendant injuriously is no ground for its exclusion. The facts against the defendant in any case may be decidedly damaging to him, but if relevant or material, they are admissible in evidence. See on this point-the opinion in Gunter v. State, a companion case, post, 772.

3. During the trial the court asked a witness for the State what the defendant was doing when arrested,—whether or not he was on duty. The witness answered that the defendant was formerly an employee of the Georgia Eailway and Power Company, but at the time of his arrest was not on duty, and was one of the strikers. It is insisted that this question was improper, because illegal, irrelevant, and harmful to the defendant. No objection to the answer was urged at the trial, nor indeed did counsel for ihe defendant object to the question itself.' The court has the right to ask of a witness a proper question. Murphy v. State, 13 Ga. App. 431 (79 S. E. 228). If the question propounded by the court was objectionable for any reason, we are able to understand' why counsel for the accused might hesitate to urge the objection. Plowever, we think it the duty of counsel to object to any improper question, whether propounded by court or counsel, and certainly it is both proper and necessary to move the court to exclude the answer of the witness if the answer is for any legal reason objectionable. In the present case the fact that the defendant was on a strike at the time of his arrest runs throughout the record. Neither the question by the court nor the answer of the witness injected any new fact into the case.

4. On the trial of the case the court admitted in evidence a written confession of the accused. The confession appears to have . been obtained by Waggoner, a detective. On cross-examination this witness admitted that, just before the making of the confession, he advised the accused that, “it would be better for him to' tell the truth about the case.” On this- point his testimony, as it appears in the brief, is as follows: “As to my advising him it would be better for him to tell the truth, I would advise anybody to tell the truth. I advised him to tell the truth, that is true,— told him it would be better to tell the truth about it.” In submitting the case to the jury the court charged as follows: “It don’t render it [the confession] inadmissible for the officer to tell him it is best for him to tell the truth about the case.” This charge was given, according to a note by the judge, because counsel for the accused had argued to the jury that the statement made by Waggoner to the defendant that “it would be better for him to tell the -truth about the case,” rendered the confession inadmissible in evidence. The charge from which the excerpt quoted above is taken is as follows: “A confession has been introduced; it is alleged by the State that he confessed the crime. Confessions are not favored in law. They are received with great caution and must be scanned with great care; and confessions, to be admissible at all, must be freely and voluntarily made,—that is, they must not have been induced by the slightest hope of benefit or remotest fear of injury. It doesn’t make a confession inadmissible if an -officer has entrapped a party into making it by anything short of hope of benefit or fear of punishment. If by his skill and finesse he entraps a man into making a confession, it don’t render it inadmissible. It may go to its weight, but it don’t render it inadmissible. It don’t render it inadmissible for the officer to tell him it is best for him to tell the truth about the case. A confession freely and voluntarily made is evidence to be considered by the jury along with the other evidence, in determining the question whether or not a man is guilty. . .• If he was induced to make the confession by hope of benefit or by fear of punishment, you should not pay any attention to the confession; you would not accept it at all; but the mere statement that he was entrapped into making it, that there was a 'frame up’ on him, would not be sufficient, unless you think that he was induced to make it by the hope of benefit held out to him by some one having authority, or by fear of punishment.”

It was insisted that the evidence of the confession should have been excluded in view of the statement made by Waggoner to the accused, and it was likewise insisted that the instruction of the court quoted above was an incorrect statement of the law, and that the jury were thereby authorized to consider a confession which, under the law, should have been excluded from their consideration. The ruling in the case of Green v. State, 88 Ga. 516 (15 S. E. 10, 30 Am. St. R. 167), was cited as controlling upon the question here made. There a confession of guilt was made by the accused while in jail to the sheriff and. another, under circumstances very similar to those in the case at bar. The following statement was made by the third person to Green in the presence of the officer: “Edmund, if you know anything, it may be best for you to tell it,” or “Edmund, if you know anything, go and tell it, and it may be best for you.” It was there ruled that the confession was inadmissible. In Dixon v. State, 113 Ga. 1039 (39 S. E. 846), the Supreme Court cited approvingly the decision in the Green case, supra, and held that any advice to a person under arrest, by the officer having him in custody, to the effect that, if he knows anything, he had better tell it, vitiates a confession induced thereby. In Smith v. State, 125 Ga. 252 (54 S. E. 190), a confession was held to be inadmissible because induced by the advice of an employee of the prosecutor that it would be best for the accused to go to the prosecutor and plead guilty, if he was guilty, and that it would be lighter on him. In Stafford v. State, 55 Ga. 591 (3), evidence of a confession was held to be -admissible. It there appeared that the defendant confessed to a fellow prisoner who was grossly irreligious, but who read the Bible and sang psalms to the defendant, and told him that if he was guilty he had better confess and seek his God. In Miller v. State, 94 Ga. 1 (21 S. E. 128), it appears that a fellow prisoner asked the accused, who was charged with murder, about the killing, and told him he had “better tell the truth, the white folks were going to break somebody’s neck.” There the confession was admitted. In the opinion by Justice Simmons it is recognized that in this State it is not necessary, in order to exclude a confession induced through hope or fear, that the inducement should have proceeded from a person in authority; but the fact that the confession in that case was made to a fellow prisoner undoubtedly influenced the court in the conclusion reached. The opinion in that case clearly recognizes the true rule upon which confessions are rejected.

Practically all the authorities agree that in determining whether there was an inducement which would render the confession inadmissible, the only proper question is whether the inducement held out to the prisoner tended to make his confession an untrue one. The exclusion of confession evidence rests on the connection with the inducement; the inducement and the confession stand to each other in the relation of cause and effect. The object of every legal investigation is to ascertain the truth. Testimonial worthlessness is the underlying and fundamental principle on which confession evidence is, under certain circumstances, rejected. If the court'could know in a given case that a confession was true, it is clear that the evidence thereof .should not be rejected. The wrong done, however, reprehensible, in inducing the accused to make a confession, could never, rightly considered, require a rejection of the confession, if the court coiild know as a fact that the confession was the truth of the case. The underlying principle is that the only confession that can be excluded is the false confession. Human nature is such (however we may theorize upon it), and experience demonstrates, that a man under promise of relief will choose often to make a false confession as to the speediest way to his freedom. Likewise, under the pressure of a threat, he will confess as the speediest way out of injury, actual or probable. Since this is well-nigh universally true, there is, generally speaking, no certainty of obtaining the only element that is of value, to wit, trustworthy information or testimony through confession evidence. It is for precisely this reason that the courts have from the beginning refused evidence of a confession if it appear that the alleged confession was an involuntary one,—that is, induced by fear or hope. This regard for the weakness of humanity and the strong probability that one accused of crime may be induced to say that which is not true, through hope of benefit or fear of punishment, accounts for the existence of the strict rule stated in § 1032 of our Penal Code—“To make a confession admissible, it must have been made voluntarily, without being induced by another, by the slightest hope of benefit or remotest fear of injury.” This statute, however, is not a fresh particle dropped into the theretofore existing body of the law, but it is to be regarded as a rule.deducible from the common law, and from many decisions of the courts since the beginning of our jurisprudence. By reference to the plain terms of the statute, the hope of benefit or fear of injury must be induced by another, and that which is conceived in the mind of the accused to be best for himself will not exclude from evidence the confession thereby induced. See Bohanan v. State, 92 Ga. 28, 32 (18 S. E. 302); Hecox v. State, 105 Ga. 625 (31 S. E. 592). While the test laid down in our code is a rigid one, it must not be interpreted without regard to the fundamental principles and primary considerations impelling it. As a particle in the great ocean of law, it is to be considered in connection with the currents and tides of that ocean, and as modified and controlled thereby.

In 1 Greenleaf on Evidence (16th ed.), 354, § 219a, it is declared that “The foundation of all rules upon this subject rests upon an anxiety to exclude confessions that are probably not true; and therefore to exclude those that are not voluntary because such are probably untrue.” In the language of Chief Justice Shaw in Commonwealth v. Morey, 1 Gray, 462, “The ground on which confessions made by a party accused, under promises of favor or threats of injury, are excluded as incompetent is not because any wrong is done to the accused in using them, but because he may be induced, by the pressure of hope or fear, to admit facts unfavorable to him, without regard to their truth, in order to obtain the promised relief or avoid the threatened danger; and therefore admissions so obtained have no just and legitimate tendency to prove the facts admitted.” In 2 Wharton on Criminal Evidence (10th ed.), 1291, § 622y, it is said: “Under the fundamental principle of exclusion, namely, that the only confession that can be excluded is the false confession, it is clear that a true confession can not be excluded, even where it is admittedly brought forth by torture. The difficulty, however, is in determining that the confession so made is actually the true confession, or the truth that it is sought to establish. Hence the rule that, if a confession is involuntary, it is false, courts generally preferring to contravene the fundamental principle of excluding only false confessions by substituting a general rule of exclusion, based entirely upon the voluntary or involuntary character of the confession, holding that the involuntary character renders it untrustworthy.” Professor Wig-more, in his work on Evidence (vol. 1, § 822), says: “The principle upon which a confession is treated as sometimes inadmissible is that under' certain conditions it becomes untrustworthy as testimony. The principle is the same as that upon which statements based on memoranda, or testimony given while intoxicated, or testimony given upon suggestion of a leading question, are treated as dubitable and may under circumstances be excluded. In criminal charges, the higher degree of caution always exercised by the law in favor of the accused prompts to a greater strictness in excluding suspicious testimony, and the degree of likelihood of its incorrectness need be much less than in other instances; yet the principle is the same.” He then proceeds to say that the primary and essentially correct test, in passing upon the admissibility of confession evidence, is this: “Was the inducement sufficient, by possibility, to elicit an untrue acknowledgment of guilt?” The secondary considerations—was the confession induced by a threat or a promise, by fear or hope, or was the confession voluntary—are but aids in application of the principal test. In 1 ■Bishop’s New Criminal Procedure, § 1221 et seq., the underlying principle upon which confession evidence is excluded is recognized. Keeping in view the true reason upon which confession evidence is excluded, and the test by which the courts have sought to determine whether or not the truthfulness of the confession is sufficiently evidenced to admit the evidence thereof to the jury, it is clear that a confession should not be excluded because made under spiritual exhortation, or promise of secrecy, or promise of collateral benefit, since these means, or. none of them, have the slightest tendency in a proper sense to induce one to confess falsely. Material, facts discovered by a confession may yet be considered, although the confession itself be rejected because improperly obtained. The true reason for the admission of such facts is that the facts themselves, discovered in consequence of the confession improperly obtained, sufficiently evidence the truth of so much of the confession as to authorize its consideration by the jury. It is true that such facts are material and relevant, irrespective of the confession, but, at least, in so far as‘they may have a tendency to connect the person accused with the commission of the offense, they depend upon the principle first announced. See, in this connection, Daniels v. State, 78 Ga. 98 (3), 104 (6 Am. St. R. 238), especially the opinion by Justice Hall.

Coming, then, to a consideration of the inducement in the present ease, let us see how the evidence of the confession and the instruction given the jury by the court stand upon general authority. In 1 Greenleaf on Evidence (16th ed.), § 220, it is said: “On principle, the advice by any person 'You had better tell the truth/ or its equivalent, can not possibly vitiate the confession, since it does not tend to produce a false statement; and to this effect is the modern weight of authority.” It is different, as noted by this author, if the advice or suggestion is to “tell it,” or “you had better tell,” or “it will be better for you to tell,” because, under such circumstances, the inducement offered to the party accused is to benefit himself by a confession, regardless of its truth or falsity. In 2 Wharton’s Criminal Evidence (10th ed.); § 647, it is said:- “A mere adjuration to speak the truth does not vitiate a confession where neither- threats nor promises are implied.” In 1 Wigmore on Evidence, § 832, it is said: “On principle, the advice by any person whatever that it would be better to tell the truth can not possibly vitiate the confession, since by hypothesis the worst that it can evoke is the truth, and there is thus no risk of accepting a false confession. The confessor is not obliged to choose between silence and a false confession having powerful advantages; the advantages are attached to the utterance of the truth; and, however tempting we may suppose them to be, there is nothing in the nature of the temptation to make the statement untrustworthy; for if it has availed at all, it has availed to bring out the truth.” Telling a prisoner that it will be better for him to tell the truth can hardly, by any process of right reasoning, be interpreted as an invitation to him to make an untrue confession. Advice to tell the truth ought not to be interpreted as an invitation to tell a lie. 1 Bishop’s New Criminal Procedure, § 1227, is as follows: “Since the danger that the confession will be false is the ground for excluding it,' an exhortation, re-enforced or not by a motive, to tell the truth, does not render inadmissible what is said in response; unless the meaning is that the real thing sought is a confession, the speaker assuming the truth to be guilt.” This statement of the doctrine by Bishop seems to us in a comprehensive way to cover the ground. It must be admitted that words, as such, may be pregnant with meaning, or practically colorless, according to the circumstances under which they are uttered. Indeed, a confession may be the direct result of either hope or fear, to be kept from the jury upon every principle of reason and justice, where no words whatever are used to-the accused.. Words which may, under some circumstances, induce hope or fear may, in other circumstances, be entirely void of such meaning. In any case, if the inducement was sufficient by possibility to elicit an untrue confession of guilt, then the evidence thereof, on reason and principle, ought to be excluded. The advice given the prisoner in the case of Green v. State, supra, was, “If you know anything, tell it, and it may be best for you.” As was said by Lumpkin, «L, in the opinion in that case: “The real object of the conversation had with the prisoner was to obtain confessions of guilt, rather than to ascertain the truth, whatever it might be.” The circumstances _under which the confession was made in the case of Dixon v. State, supra, do not appear. In Smith v. State, supra, the accused inquired of an employee of the prosecutor what he should do, and was advised that the best thing to do was to give a plea of guilty, if he was guilty, and that it would be lighter on him. The court was of- the opinion that this statement, under all the circumstances of the case, rendered the truthfulness of the confession so doubtful as to make its admission improper. It is to be noted that the statement is in the form of a direct inducement to plead guilty.

In the case at bar the evidence of the officer to whom the confession was made-is as follows: “I advised him to tell the truth, that is true,—told him it would be better to tell the truth about it.” It appears from the evidence that this particular officer and others expressly cautioned the accused that nothing could be promised him, and treated him with proper consideration. All of the evidence is to the effect that the confession was purely voluntary, unless that of the witness Waggoner quoted above is sufficient to make the confession involuntary. The defendant, in his statement at the trial, contended otherwise, but this is beside the question. We think that under the facts in this record the advice that it would be better to tell the truth about the case did not, as a matter of law, vitiate the confession. Not only was the written confession concerning which the officer Waggoner testified offered in evidence upon the trial, bnt another employee of the electric company, himself under indictment, testified to facts directly implicating this defendant, and to direct confessions made by him before he was arrested. Moreover, it was shown that the accused appeared before the grand jury of Fulton county .in a certain cause there being investigated and under oath testified to his guilt of the offense for .which he was tried, and later, upon the trial of the case of the State v. Pollard, in Fulton superior court, again testified to his guilt of that offense.

If the confession was properly admitted, it was not error for the court to so instruct the jury. The assignment of error on the charge of the court is that the court did not correctly state the law. There is no exception to this instruction upon the ground that it tended to impress upon the jury the duty of considering the alleged .confession, even if they should find that it was not freely and voluntarily made. Confession evidence should be rigidly restricted in the interest of justice. Our code prescribes a very rigid test, and we do not wish to be understood as holding that the just, wise, and salutary restrictions placed upon the admission of confession evidence should be in any wise relaxed. But in the absence of any other circumstance calculated to produce in the mind of one the slightest hope of benefit or remotest fear of injury, the mere statement to him that it is best to tell the truth about the case ought not to take away from the jury the evidence of a confession then made, since, by possibility, the circumstances considered, such advice does not tend to cause a false or untrue eonfession of guilt.

5. The jury were the judges of the facts of this ease. The facts, if believed by the jury, required the verdict rendered. Judicial interference with the discretion of the trial judge in overruling the motion for a new trial is not in this case authorized.

Judgment affirmed.

Wade, G. J., and Luke, J., concur.