text:
    15007.
    Nance v. The State.
    Decided November 13, 1923.
    Rehearing denied December 5, 1923.
    Indictment for assault with intent to murder; from Catoosa superior court—Judge Tarver. August 25, 1923.
    The accused was convicted of the offense of stabbing. The first paragraph of the foregoing decision relates to the following ground of the motion for a new trial: “The court erred in failing and
    refusing to charge the law as to the inequality between the relative size of movant and Henry Rollins, as orally requested by movant’s counsel when the case was being submitted to the jury. The following occurred with reference to this: Mr. Maddox [counsel for movant] : fI ask your honor to charge the jury the law with reference to their relative size, that they may take into consideration the difference in the size and strength of the parties/ The Court: H have charged the jury on that broadly that if at the time of the cutting—if he cut and stabbed Ilenry Rollins—he was acting under the belief of a reasonable maxi that it was necessary to use the amount of force that he did use, in order to protect himself from an assault being attempted upon him by Henry Rollins at the time, and he used no greater degree of force than would have appeared to a reasonable man to be necessary under those circumstances, he would not be guilty of any offense. That necessarily includes within it what you have said, Mr. Maddox, and all the circumstances surrounding the transaction/ Movant insists that this statement of the court did not present for the consideration of the jury the law with reference to the physical inequality between the relative size and strength of these combatants; movant insists that what the court stated in effect excluded from the consideration of the jury this request of movant’s counsel. Movant insists that the law in this respect should have been given to the jury although no written request was made therefor, because under the facts in evidence this charge was demanded, the same being the law of the case as shown by the evidence.”
   Broyles, O. J.

1. Conceding (but not deciding) that under the facts of the case the jury should have been instructed, even without a timely and appropriate written request, that in reaching their verdict they could consider any disparity in the size and strength of the defendant and the person alleged to have been stabbed by him, if any<such disparity had been shown by the evidence (Strickland v. State, 98 Ga. 84, 25 S. E. 908; but see Alexander v. State, 118 Ga. 26 (3), 28, 44 S. E. 85; Barnes v. State, 24 Ga. App. 373 (6), 100 S. E. 788), it appears from the record that the jury must have understood, from the charge of the court and the colloquy between the court and defendant’s counsel, that they had the authority to consider the relative sizes and strength of the defendant and the person alleged to have been stabbed. This . being true, and there having been no written request for a specific charge on the subject, there was no harmful error on the part of the court.

2. The excerpts from the charge of the court, complained of, when considered in connection with the entire charge and the facts of the case, contain no material error.

3. The verdict was authorized by the evidence, and the overruling of the motion for a new trial was not error.

Judgment affirmed.

Luhe and Bloodworth, JJ., concur.

Maddox, McCamy & McFarland, for plaintiff in error.

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


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    13563.
    District Grand Lodge No. 18 etc. v. Cothran, adm’x, et al.

   Luke, J.

I. Where the wife of a member of a mutual benefit association, who is named as a volunteer beneficiary in a certificate issued by the association, dies without leaving child or children, and without debts, prior to the death of the member, and where it does not appear that in the constitution or by-laws of the association, or in the certificate issued by it, there is any provision for payment of the benefit on failure of a beneficiary qualified to take such benefit, and where no such provision is made by the statutes of this State, neither the administrator of the deceased member nor the administrator of the deceased beneficiary can bring suit against the association for the benefit named in the certificate, but such benefit reverts to the association. District Grand Lodge No. 18 etc. v. Cothran (this case), 156 Ga. 631 (119 S. E. 594).

Decided November 14, 1923.

Motion to set aside judgment; from Floyd superior court—Judge ' Wright. April 1, 1933.

Branch & Howard, Willingham, Wright & Covington, for plaintiff in error.

Harris & Harris, contra.

2. It is unnecessary to decide whether the by-laws of the defendant association (adopted after the issuance of the policy in question), providing that in such a ease as the one at bar the benefit should revert to the association, are void, since, under the above-stated ruling of the Supreme Court in this ease, the benefit under the policy would revert to the association unless some person were entitled to it under the charter, constitution or by-laws, or the certificate issued by the association, or by virtue of statutory provisions of this State, and it does not appear in this case that any person was so entitled.

3. Under the facts of the instant case there is no merit in the contention of the defendant in error that the plaintiff in error had an adequate remedy at law, and therefore could not invoke the aid of equity.

4. Under the foregoing rulings and the facts of the case, the court erred in refusing to set aside the judgment.

Judgment reversed.

Broyles, O. J., and Blood/worth, J., concur.


author: Bloodworth, J.

text:
    13893.
    Berrien v. The State.
    Decided November 14, 1923.
    Rehearing denied December 5, 1923,
   Bloodworth, J.

1. The 1st and 4th counts of the indictment each set out a crime under the laws of the State; each sufficiently describes the money alleged to have been misappropriated, and neither is subject to the special demurrer. See answers of the Supreme Court to questions certified to it by this court in this case. 156 Ga. 380 (119 S. E. 300).

2. There is no error in any of the excerpts from the charge of which complaint is made in the motion for a new trial. Most of these are covered by the answers of the Supreme Court to the certified questions.

3. There is no merit in those grounds of the motion for a new trial which are based upon newly discovered evidence.

4. The court did not err in refusing to give in charge any of the requested instructions. So far as legal and pertinent they were covered by the charge given. Moreover, as was held in Killabrew v. State, 26 Ga. App. 232 (2) (105 S. E. 712), “The ground of the motion for a new trial in regard to the refusal of a request to charge was not in proper form for consideration, it not being alleged that the requested charge was pertinent and applicable to the facts of the case.”

5. The court properly excluded the evidence of which complaint is made in special grounds 30 and 31 of the motion for a new trial.

6. The evidence authorized the conviction of the defendant, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Luhe, J., concur.

Indictment for larceny after trust; from Fulton superior court— Judge Humphries. July 24, 1922.

Application for certiorari was denied by the Supreme Court.

Watkins, Russell & Asbill, for plaintiff in error.

George M. Napier, attorney-general, John A. Boykin, solicitor-general, Seward M. Smith, assistant attorney-general, E. A. Stephens, contra.


author: Bloodworti-i, J.

text:
    14220.
    MUNSEY v. WHITTIER MILLS COMPANY.
    A cause of action was set forth by the petition in this qaso—an action against a cotton-mill company by an employee alleged to have been injured by slipping on a floor on which was oil covered with waste or lint; and the court erred in dismissing the petition, on oral motion.
    Decided November 14, 1923.
    Action for damages; from Fulton superior court—Judge Ellis. November 21, 1922.
    The action was for injuries to a cotton-mill employee, alleged to have been caused by slipping on a floor on which was oil covered with waste or lint. The petition alleges: On March 26, 1920, the plaintiff was employed by the defendant corporation in the “twister’s room” of its cotton mill, in operating short twisters in twisting yarn. These twisters were run by electricity, by means of belts or pulleys, and there was a loose pulley in connection with the machinery which operated the yarn twisters, on which the defendant, through its foreman, instructed the plaintiff to slip the belt while the machinery was stopping for any reason. Just prior to the stopping of the machinery for noon recess or for any other reason the defendant would give signals, by flashing the lights, to the plaintiff and other employees of the defendant operating the same, to slip or pull the belt from the pulley which operated the machinery to the said loose pulley. At that time, while the plaintiff was giving her whole attention to the operation of the said yarn twisters, as it was her duty to do, the defendant, through its foreman, gave the signal, by flashing the lights, to pull the belt on the loose pulley, as the machinery was stopping for noon recess. It was one of the plaintiff’s duties, upon receiving the said signal, to slip or pull the belt on to the said loose pulley. In order for the plaintiff to get to the loose pulley from where she was working at the time, she had to pass through an alleyway which was between the frames of the yarn twisters and which was about three feet wide and about fifteen feet long. After the signal was given and as the plaintiff was passing through the said aisle on her way to put the belt upon the loose pulley, she stepped on a piece of waste or lint lying on the floor in the aisle way, and as she stepped upon it her feet slipped from under her, throwing her with tremendous force and violence upon the floor. A quantity of oil, as the plaintiff later learned, was on the floor underneath and covered by the waste or lint, by reason of which her view of the oil was obstructed. In order to keep the machinery from injuring the yarn in the twisters while stopping, plaintiff had been instructed by defendant through its foreman, after the signal was given as aforesaid, to put the belt upon the loose pulley before the machinery came to a stop; and in order to put the belt on the loose pulley after the signal and before the stopping of the machinery, she had to leave her work in the operation of the short twisters and pass quickly along the said aisle way to the loose pulley. By reason of the oil being in said place and the waste or lint thereon, there was created a trap which was dangerous to all persons stepping thereon, and more especially to the plaintiff. She did not know of this dangerous condition and could not have discovered it by the exercise of ordinary care and diligence, nor did she have equal means with the defendant of knowing the existence thereof. She had not been warned by her foreman, who was her superior officer and the agent of the defendant, nor by any one else, of the said dangerous condition of the floor. The defendant knew of this dangerous condition or could have discovered it by the exercise of ordinary care and diligence. The defendant had means of knowing the location of the said obstruction, and had agents or servants whose duty it was to keep the floor clean and free from oil and obstructions, in order that all persons working in the said .place or room, more especially the plaintiff, should have a safe place to walk. The plaintiff was not charged with the duty of cleaning or inspecting the floor, but the defendant, through its agents, was charged with such duty, which they negligently failed to perform. The defendant was negligent in not warning the plaintiff of the said dangerous condition of the floor, in not furnishing to her a reasonably safe place to work, and “in failing to provide an adequate number of competent servants and employees to inspect and to clean the floor in said aisle way, in that oil would often drop from the machinery on to the floor, making it unsafe, and the probable accumulation of oil and waste or lint on the floor rendered the same a dangerous trap, where plaintiff and other employees of the defendant were expected and required to walk, should have been anticipated and provided against by defendant.” Injuries caused by the fall are described, and allegations are made as to the resulting pecuniary damage; and it is alleged that all the injuries were caused by the defendant’s negligence, and could not have been avoided by the plaintiff by the exercise of ordinary care.

      G. N. Bynum, for plaintiff, cited:
    26 Cyc. 1255; 1 Ga. App. 88; 4 Id. 80 (2); 22 Id. 26 (1 b, c); 21 Id. 340 (3), 349; 2 Id. 308 (1 d); 18 R. C. L. 96 (5), 101; 1 Ga. App. 403 (3, 5); Id. 259 (1); 24 Id. 738 (2 a); 23 Id. 328.

      McDaniel & Neely, for defendant, cited:
    134 Ga. 712; 4 LaBatt, Master & Svt., §§ 1517, 1518; 67 Atl. 573; 80 Ga. 227; 115 Id. 137, 542; 114 Id. 459; 126 Id. 670; 103 Id. 584; 140 Id. 459; 23 Ga. App. 328 (distinguished).
   Bloodworti-i, J.

In the case of Whittier Mills v. Jenkins, 23 Ga. App. 328 (1) (98 S. E. 236), this court held that “the petition set forth a cause of action, and the court did not err in refusing to dismiss the case on oral motion.” The allegations of the petition in this case are so very similar to those in the Jenkins case, as shown by the record filed in the office of the clerk of this court, that the ruling in that case is absolutely controlling in this; and the court erred in dismissing this case on oral motion.

Judgment reversed.

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


author: Bloodwokth, J.

text:
    14330.
    Louisville & Nashville Railroad Co. v. Harrell & Murphy.
   Bloodwokth, J.

1. In a'suit against a railroad company for damage to mules shipped, an allegation that “one of the said mules was wounded in the nose, which disfigured said mule and made it necessary for petitioners to treat the same and cure it, which services of petitioners and expense incurred in treating said mule, together with the decreased value of the same, amounted to $50,” is subject to a special demurrer on the ground that “it is not alleged what the expense incurred in treating said mule amounted to.” L. & N. Railroad Co. v. Bradford, 135 Ga. 522 (1) (69 S. E. 870); Turley v. Atlanta, Knoxville & Northern Ry. Co., 127 Ga. 594 (3) (56 S. E. 748, 8 L. R. A. (N. S.) 695); L. & N. Railroad Co. v. Barnwell, 131 Ga. 792 (4) (63 S. E. 501), and citations.

Decided November 14, 1923.

Attachment; from Colquitt superior court—Judge W. E. Thomas. January 26, 1923.

Tye, Peeples & Tye, A. B. Kline, J. A. Dewberry, for plaintiff in error.

(a) The overruling of a special demurrer to such an allegation was error, but does not require a reversal of a judgment in favor of the plaintiff, as no specific evidence was. introduced to support such allegation, and the judge of the trial court did not submit such an element of damages to the jury. L. & N. Railroad Co. v. Bradford, 135 Ga. 522 (1 a) (69 S. E. 870).

2. The court did not err in overruling the other grounds of the demurrer.

3. In this case a declaration in attachment was filed, in which it was alleged that the plaintiff had shipped a number of mules from a point within the State of Illinois and consigned them to itself at Moultrie, Georgia. The bill of lading contained a stipulation that “As a condition precedent to the shipper’s right to recover any damages for loss or injury to said animals, he will give notice in writing thereof of his claim to the agent of the railroad company or other carrier from whom he receives said animals before said animals are removed from the place of destination above mentioned, or from place of delivery of the same to said shipper, and before said animals are mingled with other animals.” Under the foregoing stipulation, which is reasonable and valid, the plaintiff could not legally recover, because it did not show that it had complied with this stipulation. On the contrary, the defendant introduced the bill of lading which contained the said stipulation, and showed the failure of the plaintiff,—consignee, shipper, and owner,—to give the written notice therein required. Sou. Ry. Co. v. Tollerson, 129 Ga. 647 (59 S. E. 799); Southern Ry. Co. v. Adams, 115 Ga. 705 (42 S. E. 35); Payne v. Duncan, 28 Ga. App. 399 (1) (111 S. E. 209); Roberts v. Ga. Sou. & Fla. Ry. Co., 10 Ga. App. 100 (72 S. E. 942); Kidwell v. Oregon Short Line Ry. Co., 208 Fed. 3 (2), and citations. This being an interstate shipment, under decisions of the United States Supreme Court the parties to the bill of lading “cannot waive its terms, nor can the carrier by its conduct give the shipper a right to ignore them.” American Ry. Express Co. v. Roberts, 28 Ga. App. 511 (3 a) (111 S. E. 744). It follows that the verdict in favor of the plaintiff was contrary to law and the evidence, and that the court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, G. J., and Luhe, J., concur.


author: Blcodworth, J.

text:
    14350, 14351.
    JONES v. PACIFIC FIRE INSURANCE CO.; and vice versa.

    Under the facts of this case and the decisions on the question as to waiver of the conditions of the fire-insurance policy in regard to proofs of loss, this court cannot hold that the trial judge abused his discretion in refusing to set aside the judgment of nonsuit and reinstate the case.
    Decided November 14, 1923.
    Motion to set aside judgment; from Floyd superior court—Judge Irwin presiding. January 11, 1933.
    Application for certiorari was made to the Supreme Court.
    The action was upon a fire-insurance policy containing provisions similar to those passed upon in cases cited in the following decision, as to the furnishing of proofs of loss and as to waiver of conditions of the policy. On the trial the plaintiff failed to prove compliance with the provisions of the policy as to the furnishing of proofs of loss, but testified that on the next day after the burning of the property insured he told the defendant’s local agent about the burning, and the agent said that he would notify the insurance company at once; that the agent requested the plaintiff to send in an itemized statement of what was burned, and in a day or two the plaintiff carried to the agent the itemized statement; that the agent said he would forward the statement immediately to the company; that the plaintiff went back several times to the agent and the agent told the plaintiff he had not gotten any hearing on it, and finally he told the plaintiff that they were not going to pay the claim; that this was four or five weeks after the. itemized statement had been furnished; and that the plaintiff was “something over two months trying to get it before he sued.” A nonsuit was granted on motion of the defendant. The plaintiff filed in due time a motion to set aside this judgment and to reinstate the case; the motion was overruled, and the case came to this court on exceptions to the overruling of the motion. A cross-bill of exceptions assigned error on the overruling of certain demurrers of the defendant. In support of the motion to set aside the judgment of nonsuit the plaintiff introduced the affidavit of an adjuster, who stated therein that he had authority to make a settlement for the fire-insurance company, and that he discussed the matter with the plaintiff and finally stated unqualifiedly to the plaintiff that the company would not pay any part of the loss. The defendant introduced counter-affidavits to the effect that this adjuster was employed for the special purpose of investigating the facts in regard to the fire and loss in question, but had no authority to admit or deny liability, or to pass upon the sufficiency or insufficiency of the claim.

      F. W. Copeland, Harris & Ennis, for plaintiff.

      Smith, Hammond & Smith, Paul H. Hoyad, for defendant.
   Blcodworth, J.

This court cannot say that the judge abused his discretion in passing the following order: “The above case having come on for hearing before the court, after evidence introduced and argument of counsel, the court finds and adjudges that the policy of insurance is the law of the case as to the parties thereto; and, this policy expressly providing that proofs of loss shall be made in a certain way therein provided, and further providing that no agent or officer of the company has authority to waive any of the conditions of the contract unless done in writing, and no such waiver having been made, and it further appearing that the plaintiff failed to make out his case as laid, it is ordered and adjudged that the motion to reinstate be and is hereby overruled and denied.” See Bailey v. First Nat. Fire Ins. Co., 18 Ga. App. 213 (1 a, 1 b) (89 S. E. 80); Smith v. Western Assurance Co., 18 Ga. App. 461 (89 S. E. 533); Williams v. Atlas Assurance Co., 22 Ga. App. 661 (97 S. E. 91); Folds v. Fireman’s Fund Ins. Co., 28 Ga. App. 323 (110 S. E. 925).

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

Broyles, C. J., and Lulce, J., concur.


text:
    14481.
    WRIGHT COMPANY v. SAUL et al.

    1. “A corporation is a de facto corporation where there is a law authorizing such a corporation, and where the company has made an effort to organize under the law, and is transacting business in the corporate name. ”
    2. “A person dealing with a corporation as such is estopped from denying its corporate existence for the purpose of charging the incorporators as partners.”
    3. A de facto corporation could be a principal and have an agent.
    4. The court did not err in sustaining the demurrer and dismissing the petition.
    Decided November 14, 1923.

      Complaint; from Muscogee superior court—Judge Munro. March 17, 1923.
    The petition alleges in part that “I. Saul, A. E. Weiss and Joe Dannis (said Saul and Weiss being of Muscogee county, Ga., and said Dannis being of Jefferson county, Ala.), as partners doing business in the name of ‘The Jar din/ are indebted to petitioner” in a named sum. The non-resident defendant, Dannis, was not served, and the case proceeded against the other two defendants. The petition was divided into two counts. As amended the first count alleges in part, that “on or about the 16th day of May, 1921, the said defendants filed in the superior court of Muscogee county their petition praying for an order of incorporation under the name and style of ‘The Jar din/ and which order was granted on June 9th, 1921;” that there was no acceptance of nor any organization under said charter until October 1, 1921; that from August 23, 1921, to August 25, 1921, “the defendants under the name of ‘The Jardín’ ordered of petitioner, and petitioner thereafter delivered to the defendants,” certain goods (the bills for which, attached to the petition, show that the first shipment was made August 30, 1921, and the last on November 23, 1921) ; that “by reason of the facts aforesaid the said defendants, I. Saul, A. E. Weiss and Joe Dannis, doing business under the name of ‘The Jardín/ are indebted to petitioner in the sum of $2,961.32 upon said accounts, the said defendants at said time, by reason of the facts aforesaid, being partners, and their liability upon said accounts being a partnership liability.” The second count as amended makes practically the same allegations as those of the first count as to the application for the charter and the acceptance and organization under the charter, but alleges that “on August 10th, 1921, petitioner loaned to said defendants, doing business under the name and style of ‘The Jardín/ certain china and glassware to be used by defendants in the restaurant conducted by them ii Columbus, Georgia, until defendants could obtain certain other china and glassware which had been purchased by them but no1 delivered;” that “on December 1st, 1921, after defendants had céased to use said loaned articles,” demand was made for the loaned goods, but “defendants totally failed to account for and return a portion of said loaned goods,” an itemized statement of which is attached to the petition; that in packing and shipping said loaned goods plaintiff incurred an expense for which it should be paid, and that when these goods were loaned “they were contracted for by defendants acting for fThe Jardín’ as a corporation, plaintiff believing that defendants were authorized agents of an existing corporation, and plaintiff not then knowing that the charter obtained had not been accepted, nor that the corporation had not then been organized under said charter.”
    The defendants served—Saul and Weiss—each demurred to both counts of the petition, the court sustained the general demurrers and dismissed the petition, and the plaintiff excepted.

      Benny & Wright, Worsley & Flournoy, for plaintiff.

      McGutchen & Bowden, Hatcher & Hatcher, for defendants.
   Bloodworti-i, J.

(After stating the foregoing facts.) The question to be determined is whether the defendants who organized “The Jardín” are liable as partners for the goods for which they were alleged to be indebted. Plaintiff insists that the goods were all ordered in August, and that their rights then became “vested;” that at that time the corporation was “non-existent,” that there was no corporation de jure or de facto, and that “if a party contracts as agent when in fact he has no principal, he will be personally liable.” We cannot agree with learned counsel for the plaintiff in error that either one of his propositions as applied to .the facts of this case is true. We will first discuss the question whether there was a corporation de facto at the time the contract for the sale of goods became enforcible. In the brief of counsel for plaintiff in error we find the following: “It is sometimes difficult to define, under varying states of facts, what constitutes a corporation de facto, but the decisions are harmonious in requiring that in order to constitute a corporation de facto the following elements are absolutely essential: 1st. A special act or general law under which such a corporation may lawfully exist. 2d. A bona fide attempt to organize under the law. 14 Corpus Juris, pages 213, 217.”

The petition shows that the business carried on by the defendants under the name of “The Jardín” was that of running a restaurant. Unquestionably there is a general law of the State under which a corporation for such a purpose could lawfully exist. Was there a bona fide attempt to organize the corporation under this law? The petition itself answers this question. It shows that'in the superior court the defendants filed an application for an order of incorporation under the name and style of “The Jardinthat this order was granted; that the charter was accepted, and “organization had under said charter” on October 1, 1921. (Italics ours.) Let it be kept in mind that the petition alleges' nothing that shows that a partnership in fact existed, or that the defendants ever claimed that they were conducting the business of “The Jardín” as partners, or that they ever held themselves out! to the world as partners. We go a step further than the rule quoted above from the brief of plaintiff in error. In Cason v. State, 16 Ga. App. 828 (86 S. E. 649), this court said: “A corporation de facto is one exercising corporate powers under color of a more or less legal organization.” In McRee v. Quitman Oil Co., 16 Ga. App. 12 (3) (84 S. E. 487), it was said: “A 'corporation is a de facto corporation where there is a law authorizing such a corporation and where the company has made an effort to organize under the law and is transacting business in a corporate name. . . Where a supposed corporation is doing business as a de facto corporation, the stockholders cannot be held liable as partners, although there have been irregularities, omissions, or mistakes in incorporating or organizing the company.’ 1 Cook on Corporations, § 234. See also 2 Id. § 424.” In Brown v. Atlanta Ry. & Bower Co., 113 Ga. 468 (39 S. E. 73), Justice Cobb said: “In order to constitute a corporation de facto, it is necessary that there should be either a charter or a law under which such a corporation could exist with the powers it assumes to exercise, and a colorable compliance with the requirements of the charter or the law and a user of the rights claimed under the same. See Georgia Southern & Florida R. Co. v. Trust Co., 94 Ga. 306, 316 (21 S. E. 705, 32 L. R. A. 208, 47 Am. St. Rep. 153), and cases cited.” See Brooks v. Day, 129 Ga. 694, 696, 697 (59 S. E. 769).

Measured by the rule laid down in the foregoing cases, was there not at least a de facto corporation shown by the allegations of the petition ?Q| We have already stated that there is a law authorizing such a corporation. (í)The petition shows that the company was organized and conducting business in the corporate name, that of '/^fThe Jardin,” thus showing a user of the rights claimed under the order of incorporation. So it seems to us, from the allegations of the petition, that no other conclusion can be reached than that even at the time the goods were ordered there was a genuine and bona fide effort to establish a de jure corporation, and that at that time there, was_aLIeast_a_de- facto corporation. If the defendants were not acting at least under color of authority, it would be difficult to conceive how there could be a de facto corporation. In Georgia Southern R. Co. v. Trust Co., supra, Justice Lumpkin quotes with approval from Heaston v. Cin. & Ft. W. R. Co., 16 Ind. 276 (79 Am. Dec. 430), the following: “A de facto corporation, that by regularity of proceeding might be one de jure, can sue and be sued; and a party who contracts with such corporation, while it is acting under its de facto organization, is estopped, in a suit on such contract, from denying such organization at the date of the contract.” In Edenfield v. Bank of Millen, 7 Ga. App. 645 (67 S. E. 896), this court held: “A party will not be heard to deny that the opposite party to a suit is a corporation, where he has dealt with such party as a corporation.” See Dorris v. Farmers & Merchants Bank, 22 Ga. App. 514 (2) (96 S. E. 450). In Lockwood v. Wynkoop, 178 Mich. 391 (144 N. W. 847), Justice Stone said: “It is a familiar doctrine that a person dealing with a corporation as such is estopped from denying its corporate existence for the purpose of charging the incorporators as partners.”

Did the plaintiff deal with the corporation as such while it was “acting under its de facto organization?” The petition shows that none of the goods were ordered until after the date of the incorporation; that they were ordered by and shipped to the defendants in the name of “The Jardin,” the defendants contracting for and receiving said goods in the name of “The Jardin” as a corporation. The petition shows no acceptance of these orders further than that implied by the fact that the goods were shipped to and received by “The Jardin,” as shown by the account of sales attached to the petition, which account shows that some of the goods were shipped' after October 1, 1921, the date of the organization, as shown by the petition. So it appears that when some of the goods were delivered there was a de jure corporation, and when the others were delivered there was at least a de facto corporation. From the foregoing we must reach the conclusion that the plaintiff dealt with “The Jardin” as a corporation and shipped its goods to the corporation, and that the defendants are not liable as partners or as individuals. As was said in Planters & Miners Bank v. Padgett, 69 Ga. 164, “The members never agreed to enter into the contract, either severally or jointly, and it is difficult to see how they can be bound by it. They never agreed to be bound as partners, nor did they hold themselves out to the world as such.” What is heretofore said shows that there is nothing in the insistence of counsel for plaintiff in error either that “the corporation in August was nonexistent, there was no corporation either de jure or de facto,” or that “plaintiff relied on defendants being authorized agents of an existing corporation.”

In addition to what has been said, it was held in Bartram v. Collins Mfg. Co., 69 Ga. 751, that “a corporation is not a person in law until after the grant of its charter.” In Smith v. Satilla Pecan Orchard &c. Co., 152 Ga. 544 (110 S. E. 306), Justice Hill said: “The evidence is sufficient to authorize the conclusion that the charter was accepted, and that organization was effected under it. Where application is made for a charter in this State, and it is granted after having been applied for, acceptance of the charter may be presumed from such previous application. City of Atlanta v. Gate City Gas Light Co., 71 Ga. 106.” The law [Civil Code of 1910, § 2823 (3)] provides that “no corporation created under this section shall commence to exercise the privileges conferred by the charter until ten per cent, of the capital stock is paid in.” From the fact that the petition alleges that defendants were “doing business,” and did not negative the idea that this provision of the law had not been complied with, it is a legitimate inference that at least ten per cent, of the capital stock of the corporation had been paid in when the business of “The Jardin” was commenced.

As the petition shows that the plaintiff dealt with “The Jardin” as a corporation, shipped the goods to the corporation, loaned to the corporation certain goods, and all its dealings were with the corporation, the court did not err in sustaining the demurrer and dismissing the petition.

Judgment affirmed.

Broyles, C. J., and Lulce, J., concur.


text:
    14603.
    CENTRAL OF GEORGIA RAILWAY CO. v. SMITH.
    Where a principle of law abstractly correct but entirely inapplicable either to the pleadings or the evidence in a case is given in charge to a jury as to a material issue, the error is not rendered harmless by a subsequent statement of the correct principle, unless the judge expressly calls the attention of the jury to the incorrect statement, and retracts it.
    Decided November 14, 1923.
    Action for damages; from Muscogee superior court—Judge Munro. April 21, 1923.

      Arnold & Battle, for plaintiff in error.

      Watlcins, Russell & Asbill, Paul Blanchard, contra.
   Luke, J.

Plaintiff sued defendant as a common carrier, for a loss of $6,361.87, alleged to have been incurred by him by reason of damage by fire to seventy-seven bales of cotton placed on defendant’s platform for immediate shipment. There was a verdict and judgment for the full sum. Defendant asked for a new trial upon the general grounds, and upon alleged errors in the court’s charge. Having concluded, after a painstaking examination of the record, that the evidence would sustain either the contention of plaintiff that there was a complete delivery of the cotton to the railway company as a common carrier, or that of defendant that there was no such delivery, it is with some, reluctance that we hold that a new trial must be granted, because of error in the charge of the court.

■ “A common carrier, holding himself out to the public as such, is bound to receive all goods and passengers offered that he is able and accustomed to carry, upon compliance with such reasonable regulations as he may adopt for his own safety and the benefit of the public.” Civil Code (1910), § 2729. “Railroad companies, as common carriers, have the right to establish reasonable rules and regulations as to the time when and the place at which they will receive goods for transportation.” Ethridge v. Central of Ga. Ry. Co., 136 Ga. 677, 679 (71 S. E. 1063, 1064, 38 L. R. A. (N. S.) 932, Ann. Cas. 1912D, 128). A common carrier “has the right to make and enforce reasonable regulations which may lawfully fix the times, methods, and the forms in which it will receive the various commodities it undertakes to carry.” 4 R. C. L. 138. There was introduced in evidence a rule which was in effect that the defendant would assume no responsibility for freight until it had been received with proper shipping instructions and receipted for by its agent. From the foregoing authorities it appears that the carrier had the right to establish this rule. The court gave in charge to, the jury section 2779 of the Civil Code (1910), which is as follows: “In all cases where the person or property of an individual may be injured, or such property destroyed, by the carelessness, negligence or improper conduct of any railroad company, or officer, agent, or employee of such company, in or by the running of the cars or engines of the same, such company shall be liable to pay damages for the same to any one whose property or person may be so injured or destroyed, notwithstanding any bylaws, rules, or regulations, or notice which may be made, passed, or given by such company, limiting its liability.” Certainly in charging this code section, the court injected into the case a rule of law not applicable to either the pleadings or the evidence. But it is said that the law appropriate to this phase of the case was correctly charged elsewhere, and that “A charge though not applicable to the issue involved in the case is not cause for a new trial, when it does not appear that the complaining party was probably hurt thereby.” See Dolvin v. American Harrow Co., 131 Ga. 300 (10) (62 S. E. 198). Was the plaintiff: probably hurt by this part of the charge? It was said in Rowe v. Spencer, 132 Ga. 426 (5) (64 S. E. 648), that “Where an erroneous principle of law is charged as to a material issue, the error is not rendered harmless by a subsequent statement of the correct principle, unless the judge expressly calls the attention of the jury to the incorrect statement and retracts it.” See also Brush Electric &c. Co. v. Wells, 103 Ga. 512 (1) (30 S. E. 533); Sutton v. Ford, 144 Ga. 587 (1) (87 S. E. 799, L. R. A. 1918D, 561, Ann. Cas. 1918A, 106); Carter v. Parrish, 154 Ga. 531 (2) (114 S. E. 709).

The main issue in the case was whether or not there had been a complete delivery of the cotton to the defendant as a common carrier. Involved in this issue was the question as to whether defendant had promulgated and communicated to plaintiff the above-stated rule. Whether this rule was known to plaintiff, and whether plaintiff made, prior to the ñre, a bona fide attempt to present to the defendant appropriate shipping instructions and procure a bill of lading, and whether he was prevented from so doing, because of the inattentiveness of the defendant’s agent, or because it had no proper agent on duty at the time, were jury questions. The particular vice in the charge was that the court instructed the jury that a recovery could be had “notwithstanding any by-laws, rules, or regulations, or notice which may be made, passed, or given by such company, limiting its liability.” As indicated above, the defendant had the right, under the law, to establish the rule under consideration. Since it was the only rule in the case, the jury, if they considered the foregoing portion of the charge at all, must have applied it to that rule, and, being unskilled in the niceties of the law, may have concluded that they had no right to consider that rule in any event. A correct rule of law entirely inapplicable to either the pleadings or the evidence in a case may be as damaging as an inaccurate statement of law that is appropriate, especially when the court, as in this case, after saying to the jury, “I read you the following sections of our code, which are applicable to the contentions made in the pleading in this case,” immediately charged the objectionable code section. A careful reading of the court’s charge shows that this law was given without any sort of qualification in the portion of the charge where it occurs, that the court did not at any time call the attention of the jury to the inapplicability of that law to the case, or tell them that he retracted it; and certainly it cannot be said that it was legal and proper when considered with its context. The jury should not be called upon to select for themselves and apply to the facts of the case, from two conflicting rulés Of law,—the one applicable, and the other not applicable,—the appropriate rule. We do not feel justified in holding that “it does not appear that the complaining party was probably hurt thereby,” and we are constrained to reverse the judgment, on this ground alone.

Judgment reversed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    14708.
    SIMON v. MECHANICS INSURANCE COMPANY OF PHILADELPHIA.
    1. Where the purchaser of an automobile under a contract retaining title in the seller until full payment of the purchase price brought suit on a policy insuring the automobile against fire after the seller had transferred his contract to a bank as collateral security, and after a rider had been attached to the policy, making the insurance payable to the bank as its interest might appear, the petition was not subject to general demurrer upon the ground that the suit was not brought in the name of the party holding the legal title to the policy.
    2. Where in such a case the agent authorized to issue and deliver the ' policy in behalf of the insurance company issues and delivers it with knowledge that the automobile is not fully paid for and was purchased under a contract retaining title in the seller until full payment of the purchase price, knowledge of the agent is knowledge of the company, and delivery of the policy with such knowledge amounts to a waiver of a “warranty” in the policy that the automobile is fully paid for, and of the stipulation therein that the company shall not be liable if the interest of the assured in the property be other than unconditional ownership.
    3. The transfer of the retention-of-title contract to the bank as collateral security was not violative of the stipulations of the policy, and did not make the petition subject to a general demurrer.
    4. The failure of the assured to give written notice “forthwith” of the loss of the car did not vitiate the policy.
    Decided November 14, 1923.
    Rehearing denied January 16, 1924.
    Action on insurance policy; from city court of Savannah—-Judge Freeman. May 24, 1923.
    Application for certiorari was denied by the Supreme Court.

      Oliver & Oliver, for plaintiff.

      Adams & Adams, for defendant.
   Luke, J.

Mrs. Ray Simon sued the Mechanics Insurance Company of Philadelphia on an insurance policy taken out on her automobile. The case came to this court on exceptions to the sustaining of four grounds of the defendant’s special demurrer, and of its general demurrer to the petition. From the petition and the exhibits attached thereto it appears: that on March 17, 1921, plaintiff’s husband purchased an automobile from Chapman Motor Company, under a contract reserving title thereto in the seller until payment of the balance of the purchase price, and on the same day presented it to his wife, the plaintiff; that on March 18, 1921, the defendant issued to the petitioner a policy insuring the automobile against destruction by fire; that on April 6, 1921, the agent of the insurance company attached to the policy a rider making the insurance payable to the Commercial Bank as its interest might appear, the bank “holding the reserve-title notes under which the automobile was sold;” that on April 9, 1921, the motor company, “for value received and simultaneously with the purchase of notes referred to therein,” assigned and transferred to the Commercial Bank the retention-title contract, with all right, title, and interest of the motor company thereunder and to the property described therein; that on November 25, 1921, the automobile was totally destroyed by fire; that immediately after the loss of said car, petitioner gave to the insurance agent of defendant full information as to the destruction of the car, and asked him what she should do relative to the insurance, and that he told her to do nothing, as the adjuster would see her about the matter in a few days and pay her the proper amount thereon; that when the adjuster failed to appear she again saw the agent, and was again told by him to wait for the adjuster, but that when it appeared that the adjuster was not coming she filed her sworn proof of loss, on January 24, 1922; that on January 27, 1922, the company refused payment of the policy; that the defendant acted in bad faith and was liable to her for expenses of litigation, as well as for $3,500, the amount of her loss, with 25 per cent, thereon as damages.

Defendant’s first contention is that after the endorsement of April 6, 1921, providing that “Loss, if any, under this policy, having been made payable to the insured, is hereby cancelled, and loss, if any, is herewith made payable to the Commercial Bank as their interest may appear,” the plaintiff could ¿not sue, because there was no written assignment from the bank back to her, the well-recognized rule that an assignment of an insurance policy must be in writing, as stated in St. Paul Ins. Co. v. Brunswick Grocery Co., 113 Ga. 786 (3) (39 S. E. 483), being invoked to sustain this position. This contention is not sound. “Where one holding the beneficial interest in his own name brings an action, and the introduction of the person holding the legal title is necessary to the enforcement of the right of the person having the equitable interest, the declaration, under . . the code [Civil Code of 1910, § 5689], may be amended by the insertion of the name of such person as suing for the use of one holding the beneficial interest.” Wheeler v. Stapleton, 99 Ga. 731 (27 S. E. 724). The alleged defect, being amendable, could not be reached by a general demurrer, and was not cause for’dismissing the petition. Liverpool & London & Globe Ins. Co. v. Ellington, 94 Ga. 785 (1) (21 S. E. 1006).

Defendant further contends that the general demurrer was properly sustained because of the “warranty” in the policy that the automobile was fully paid for, and of the further provision therein that the company should not" be liable if the plaintiff’s interest in the automobile was not that of absolute ownership. Plaintiff’s amendment alleging that, prior to and at the time the policy was issued and delivered, the company, through the agent soliciting, taking, and transmitting to the company the application for insurance, and who obtained the policy from the company and delivered it, and received payment therefor, knew the automobile was not fully paid for and had been purchased under a contract retaining title in the vendor, brings this case within the rule stated in Mechanics & Traders Ins. Co. v. Mutual Real Estate & Bldg. Asso., 98 Ga. 262 (1) (25 S. E. 457), that “it is well settled that when an agent, who is authorized to issue and deliver policies in behalf of an insurance company, issues and delivers a policy with knowledge of the true state of the title, the knowledge of the agent is the knowledge of the company, and delivery of the policy with such knowledge amounts to a waiver of conditions relating to the existence of the title.” See also: Atlas Assurance Co. v. Kettles, 144 Ga. 306 (3) (87 S. E. 1); Springfield Fire Ins. Co. v. Price, 132 Ga. 687 (2) (64 S. E. 1074); Atlanta Home Ins. Co. v. Smith, 136 Ga. 592 (71 S. E. 902).

Defendant contends further that the transfer by the vendor of its retention-of-title contract to the bank without the written consent of the defendant vitiated the policy. The policy provides that the company shall not be liable “in case of transfer or termination of any interest of the assured, other than by death of the assured, or any change in the insurable interest of the assured in the policy described herein, either by sale or otherwise,” or “if the subject of this insurance be or become encumbered by any lien or mortgage except as stated in Warranty No. 3, or otherwise endorsed hereon.” The policy states that “This policy is made and accepted subject to the provisions, exclusions, conditions, and warranties set forth herein or endorsed hereon, together with such other provisions, exclusions, conditions, or warranties as may be endorsed hereon or added hereto, and upon the acceptance of this policy the insured agrees that its terms embody all agreements then existing between himself and the company or any of its agents relating to the insurance herein described, and no officer, agent, or other representative of this company shall have power to waive any of the terms of this policy, unless such waiver be written upon or attached hereto.” It may be noted in this connection that the com-. pany had full knowledge of the retention-of-title contract through its agent when the policy was issued and delivered, and further that the assignment of that contract to the bank was made by the seller, and not by the plaintiff, and that, three days before the assignment was made, the rider making the insurance payable to the bank as its interest might appear was duly attached to the policy by the company’s agent. But aside from these considerations, we do not think it can be said that the transfer of the retention-of-title contract of the seller to the bank violated either the letter or the spirit of the inhibitions in the policy; nor was the risk of the company affected thereby^ The provisions of the policy sued on in the case of Hartford Fire Ins. Co. v. Liddell Co., 130 Ga. 8 (60 S. E. 104, 124 Am. St. Rep. 157), are very similar to the stipulations of the policy now under consideration, and the facts of the two cases are somewhat parallel, except that in the former the loss was payable to the vendor as his interest might appear, and it was the vendee himself, and not the seller and holder of the retention-of-title contract, who changed the status of the insured machinery by giving a mortgage thereon in violation of the terms of the policy. In that case the Liddell Company sold the machinery and retained title thereto. The court said (p. 13) : “The inhibition against encumbrancing had no reference to, the Liddell Company transferring its reserved-title note. If Liddell Company had relinquished their interest in the property, or its debt had been paid before loss, Collins [the vendee] could have collected the insurance.”

Defendant says also that the provision in the policy that “In the event of loss or damage, the assured shall forthwith give notice thereof in writing to this company” was violated, for the reason that no such notice was ^forthwith” given. It is not denied that proof of loss was duly made to the company within sixty days from the destruction of the automobile. Referring to such proof of loss, the policy provides that “It is a condition of this policy that failure on the part of the assured to render such sworn statement of loss to the company within sixty days after the daté of the loss . . shall render such claim null and void.” No such specific and mandatory provision is made as to “forthwith” giving notice of the loss to the company, and we do not think the reading of the entire policy warrants the conclusion that the dereliction of the plaintiff in this regard works a forfeiture of her rights under the policy. Our conclusion is that the general demurrer to the petition was improperly sustained.

We shall consider briefly the special demurrers. We are of the opinion that the special demurrer to that portion of paragraph 3 of the petition which alleges that although the policy states that the automobile was fully paid for, that was incorrect, and information was given to the defendant’s agent that the car was not fully paid for, upon the ground that such allegation sought to vary by parol the terms of the policy, was met by plaintiff’s amendment, alleging that the company, through the agent who took her application and procured and delivered the policy and received payment therefor, knew that the car was not fully paid for and that the retention-of-title contract was outstanding. This demurrer should'not have been sustained.

We think that the defendant’s special demurrer to that portion of paragraph 6 of .the petition which alleges that after the automobile was destroyed, the petitioner gave full information to defendant’s agent and asked him what she should do relative to her insurance, and that he told her to do nothing, but to wait for the adjuster, was good, upon the ground that the defendant was not bound by this conversation, and that such allegations were immaterial. Ground 5 of the demurrer was to the same effect, and was properly sustained. In view of the full statement as to the destruction of the automobile, given in the plaintiff’s proof of loss, which was attached to the petition, the defendant’s demurrer upon the ground that the details and circumstances of the burning of the car were not given was without merit and should have been overruled.

The ruling here made does not conflict with that made in the case of Conyers v. Yorkshire Ins. Co., 30 Ga. App. 6 (117 S. E. 102). It was there held that notice to a person, alleged to have been associated in some way with the local agent of the insurance company, that the insured was not the unconditional owner of the automobile insured, was not notice to the insurance company. Whereas, in the instant case, the defendant’s agent who look the application and procured and delivered the policy and received payment therefor knew, when the policy was issued and delivered', that the insured was not the unconditional owner of the automobile insured.

Judgment reversed.

Broyles, G. J., and Bloodworth, J., concur.


author: Broyles, C. J.

text:
    14765.
    Hinson v. Hooks.
    Decided November 14, 1923.
    Complaint; from Wheeler superior court—Judge Eve presiding. April 21, 1923.

      A. G. Saffold, H. W. Nalley, W. A. Wooten, for plaintiff in error.

      W. S. Mann, W. G. Davis, contra.
   Broyles, C. J.

1. The motion to dismiss the bill of exceptions is overruled.

2. The affidavits of the jurors offered upon the hearing of the motion for a new trial, the exclusion of which is complained of in the bill of exceptions, being in the nature of evidence tending to impeach their verdict, were properly rejected by the court. Park’s Ann. Code, § 5933, and citations.

3. It is not cause for a new trial that on the trial of a civil case a judgment rendered on a former trial of the same case and written upon the petition was inadvertently handed to the jury and taken by them to the jury-room, especially where, as shown in this case by the certificate of the trial judge, the court’s attention was not directed to the former judgment and there was no request to have it detached, erased, or in some way concealed. Allen v. State, 155 Ga. 332 (116 S. E. 534 (1)), and citations.

4. The verdict (after $29.57 of the principal and $17 of the interest had been written off) was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

5. This coui't not being satisfied that the writ of error was prosecuted for the purpose of delay only, the request of the defendant in error for the award of damages is denied.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    14767.
    LANGFORD v. THE STATE.
    The motion to arrest and set aside the conviction was properly overruled.
    Decided November 14, 1923.
    Accusation of possession' of liquor; from city court of Athens— Judge Bradwell. June 16, 1923.
    The accusation states that it is based on an affidavit made “on the 29th day of Mayj 1922,” charging that the offense was committecl on that day; but the accusation alleges that the offense was committed on “the 29th day of April,”' 1922. The date of the affidavit sent up in the record as the affidavit on which the accusation was based is April 29, 1922, and this affidavit charges that the offense was committed on the same date. The motion to arrest and set aside the judgment is based on the variance in dates. The judgment was rendered at the February term of the city court, 1923, and the motion was filed on June 16, 1923. It was contended in the brief of counsel for the State that the motion was filed too late, and that the accusation was amendable as to the defect in question, and therefore the defect was not a sufficient ground for such a motion.

      Carl F. Grossley, Austin Bell, for plaintiff in error.

      Lamar G. Buclcer, solicitor, L. G. Penny, contra.
   Luke, J.

In this case exception is taken to a judgment overruling the defendant’s motion to stay and arrest a judgment of conviction. After conviction he filed a motion for a new trial, which motion was dismissed by the court, and the judgment dismissing it was affirmed by this court. 30 Ga. App. 278 (117 S. E. 659). Subsequently the motion to stay and set aside the conviction was filed. The court properly overruled and denied this motion.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    14776.
    HALEY v. PARTAIN, executor, et al.

    The right of an executor to appropriate the distributive share of one of the heirs of an estate to the payment of debts duo by the heir to: the testator is superior to the lien of a judgment against the heir.
    Decided November 14, 1923.
    Garnishment; from city court of Elberton—Judge Grogan. May 21, 1923.

      B. Stapleton, J. S. Haley, for plaintiff.

      Z. B. Rogers, contra.
   Bloodworth, J.

L. B. Partain died testate, leaving his property, both real and personal, to his wife for life, and at her death to be equally divided between his children. After her death the executor sold the property belonging to the estate of the husband. Among the effects of the deceased husband were certain notes of D. C. Partain, one of the children and a “distributee-heir.” Some of these notes were payable to the testator and some were indorsed over to him. These notes were included in the aggregate value of the estate, and amounted to nq.ore than the distributive share of the son and heir D. C. Prior to the death of the testator and his wife the plaintiff in error obtained judgments against the son D. C., who was insolvent, and after the death of the wife the plaintiff in error had summons of garnishment served on the executor. The executor answered the garnishment and denied that the estate was indebted to D. C. Partain. This answer was traversed by the plaintiff in error, and the issue thus raised was by consent “submitted to the judge without a jury, to determine the facts as well as the law.” Judge George C. Grogan, to whom the case was submitted, passed the following order: “The question of law involved is: Can the executor of testator set off the debts due testator by D. C. Partain, defendant in fi. fa., against the amount that would be due D. C. Partain as a legacy under said will; and the question of fact is, did D. 0. Partain owe these notes aggregating $969.19 to L. B. Partain at the time of his death? After considering the evidence and hearing argument of counsel, it is adjudged and ordered: that the executor, garnishee in this case, can first set off the debts due his testator by D. C. Partain, a legatee; that if the debts exceed the legacy, counting the notes as paid in, the answer of the garnishee that the estate of L. B. Partain did not owe or have in its possession any money, property or effects of D. C. Partain, is sustained. Whereupon it is adjudged and ordered that the answer of the garnishee be and is hereby sustained, and judgment is rendered against the traverse to said answer.”

Under the decision in the case of Lester v. Toole, 20 Ga. App. 381 (93 S. E. 55), the case was properly decided. See especially Streety v. McCurdy, 104 Ala. 493 (16 South. 686).

Judgment affirmed.

Broyles, C. J., and Lulce, J., concur.


text:
    14777.
    LITTLE v. THE STATE.
    Slight evidence identifying the accused with the crime may be sufficient to corroborate the testimony of an accomplice and warrant a verdict of guilty;.and, the trial judge in this case having approved the verdict on such evidence, this court will not disturb the verdict because of alleged insufficiency of evidence.
    Decided November 14, 1923.
    Burglary; from Putnam superior court—Judge Park. May 25, 1923.

      Callaway & DeJarnette, for plaintiff in error.

      Doyle Campbell, solicitor-general, A. Y. Clement, contra.
   Bloodworth, J.

The motion for a new trial contains the general grounds only. In the order overruling the motion for a new trial the judge said: “The motion for a new trial is based upon the general grounds, and there is sufficient legal evidence, as set forth in the brief of evidence, to corroborate the testimony of the accomplice, Arthur Bailey, to authorize the conviction of the defendant.” We think the conclusion reached by the trial judge is correct. In Anglin v. State, 14 Ga. App. 566 (81 S. E. 804), Judge Roan (p. 568) said: “The corroboration may be slight, but if the court approves of the verdict on the testimony thus corroborated, this court does not feel authorized to disturb the discretion thus exercised; for the law does not and cannot lay down any rule to measure the extent of the corroboration necessary. It must be such as to satisfy the jury and to lead to the inference that the defendant was guilty. Slight evidence that the crime was committed by the defendant, identifying him with it, will corroborate the testimony of an accomplice and warrant a conviction. Evans v. State, 78 Ga. 351; Roberts v. State, 55 Ga. 220; Chapman v. State, 109 Ga. 165 (34 S. E. 369).” See Evans v. State, 27 Ga. App. 316 (2), 317 (2) (108 S. E. 129).

Judgment affirmed.

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


text:
    14805.
    Watson v. Kvaternik Export Stave Company.
   Broyles, C. J.

1. Tlie motion to dismiss tlie bill of exceptions is denied.

2. Under repeated rulings of the Supreme Court and of this court, where a verdict is directed and tlie losing party excepts to the overruling of his motion for a new trial but does not complain, either in the bill of exceptions or in the motion for a new trial, of the direction of the verdict, the reviewing court will consider, in this connection, only tlie question as to whether the verdict is supported by the evidence.

3. This was a claim case. The plaintiff introduced his judgment, execution, levy, etc., and the claimant, upon the call of the case, admitted that at the time of the levy the defendant in attachment was in possession of the property levied upon, and assumed the burden of proof. A careful examination of the evidence introduced by the claimant fails to show that he sustained the burden assumed by him; the verdict directed was authorized by the evidence (there was no exception to the direction of the verdict), and none of the special grounds of the motion for a new trial requires another hearing of the case.

Decided November 14, 1923.

Rehearing denied Janauary 16, 1924.

Claim; from Baldwin superior court—Judge Park. May 31, 1923.

Application for certiorari was denied by the Supreme Court.

Allen & Pottle, PL. 0. Beasley, for plaintiff in error.

Sibley & Sibley, contra.

Judgment affirmed.

Luhe and Bloodworth, JJ., concur.


text:
    14807.
    Fuss v. The State.
    Decided November 14, 1923.
    Indictment for voluntary manslaughter; from Bibb superior court—Judge Mathews. June 12, 1923.
    Application for certiorari was denied by the Supreme Court.
    The indictment was returned on May 4, after the same grand jury had on May 1 made a return of “no bill” in the same case. A motion to quash and a special plea in abatement were made by the defendant on the ground that the same grand jury, after making a return of “no bill,” had no right to reconsider it and take further action in the case. It was contended that only a subsequent grand jury could take such further action. The court overruled the motion and the plea, and the defendant excepted.

      Collins d Collins, Clyde B. King, for plaintiff in error.

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

This case is controlled by the ruling in McNeely v. State, 25 Ga. App, 328 (1) (103 S. E. 189). In the brief of counsel for plaintiff in error it is urged that the foregoing decision “should be reconsidered and overruled,” but we are content to let it stand.

Judgment affirmed.

Broyles, O. J., and Lulce, J., concur.


text:
    14819.
    MANNING v. THE STATE.
    Under tlie facts of the case it was not cause for a new trial that the court charged the jury to the effect that if they believed from the evidence, beyond a reasonable doubt, that the defendant (who was charged with having had in his possession intoxicating liquors) had in his possession a bottle containing such liquors “at any time two years prior to’’ the finding of the indictment, “it would make no difference whether the bottle and its contents were in court or not,” the jury would be authorized to find him guilty.
    It is not ground for a new trial that the court admitted evidence which was objected to as a whole, where a part of it was admissible.
    Decided November 14, 1923.
    Accusation of possessing intoxicating liquor; from city court of Tifton—Judge J. H. Price. June 9, 1933.
    It was testified that a light was flashed in the defendant’s face at night and he dropped or threw away a bottle which contained whisky; and, according to the evidence, this occurred shortly after and near the place of the occurrence mentioned in the testimony complained of in the second special ground of the motion for a new trial, which ground was as follows: “Because the court erred in allowing the following evidence of witness C. T. Bowen for State, which was objected to by defendant for the reason that it illustrated no issue and was prejudicial to defendant: ‘Ed Manning [defendant] and two other negroes’ came by that night. They went about 75 yards and shot down toward us. I heard a bullet come right near me;’ which objection the court then and there overruled and allowed the evidence to go to the jury; however, restricting the consideration of said evidence for the purpose of identifying the presence of defendant at the time and place of the alleged transaction.”

      John Henry Poole, for plaintiff in error.

      J. 8. Bidgdill, solicitor, contra.
   Bloodworth, J.

1. Plaintiff in error was accused of having “in his possession, custody, and control a quantity of spirituous, malt, vinous, fermented, and intoxicating liquors.” On the trial the judge instructed the jury, “If you believe from the evidence, and beyond a reasonable doubt, the defendant Ed Manning did, on the date alleged in the accusation or at any time two years prior to the filing thereof, have a bottle in his possession, custody, pr control, and that the bottle did contain spirituous, malt, vinous, or intoxicating liquors, it would make no difference whether the bottle and its contents were in court or not, you would be authorized to find the defendant guilty.” Under the facts of this case this charge was not error for any reason assigned.

2. There is nothing in the second special ground of the motion for a new trial that would require a reversal of the judgment. When the evidence to the introduction of which objection was made was allowed to go to the jury, the judge restricted its use to a proper and legitimate purpose. Moreover, part • of the evidence objected to was clearly admissible. “Where evidence is offered and objected to, and a portion thereof is admissible and a part objectionable, unless the illegal portion is specified and properly objected to, the whole will be admitted. City of Atlanta v. Sciple, 19 Ga. App. 694 (3), 698 (93 S. E. 28); Luke v. State, 26 Ga. App. 175 (1), 176 (106 S. E. 199), and citations.” Joiner v. State, 29 Ga. App. 363 (1) (115 S. E. 378).

3. There is sufficient evidence to support the verdict.

Judgment affirmed.

Broyles, G. J., and Luhe, J., concur.


author: Bkoyi.es, 0. J.

text:
    14821.
    Overstreet v. The State.
    Decided November 14, 1923.
    Indictment for larceny from house; from Berrien superior court —Judge Dickerson. June 9, 1933.

      Jeff. S. Story, for plaintiff in error.

      J'. D. Lovett, solicitor-general, John P. & Dewey Knight, contra.
   Bkoyi.es, 0. J.

The verdict was amply authorized, if not demanded, by the evidence; and the alleged error in the charge of the court, if error, does not require' another trial of the case. The court did not err in refusing the grant of a new trial.

Judgment affirmed.

Luhe and Bloodworth, JJ., concur.


text:
    14822.
    Pew v. The State.
    Decided November 14, 1923.
    Conviction of assault with intent to rape; from Bibb superior court—Judge Mathews. June 23, 1923.

      E. Capers Palmer, Hubert F. Rawls, for plaintiff in error.

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

The defendant, a negro, was convicted of the offense of assault with intent .to rape upon a white child. His case is here upon the sole assignment of error that the verdict was unauthorized by the evidence. The verdict was fully authorized, and the court properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., conewr.


text:
    14823.
    BROWNING v. THE STATE.
    1. When all the evidence and the statement of the defendant are considered, this court cannot say that the trial judge erred in charging the jury on voluntary manslaughter. One theory upon which such a charge would be authorized is that the jury had a right to believe any part of the statement of the defendant and to disbelieve other parts. If tney believed that part of the statement of the defendant in which he said that the deceased made an actual assault upon him with a knife, which was not shown to be such a weapon as would likely produce death, and believed that the accused shot the deceased because of that assault, the law of voluntary manslaughter was involved and was properly given in charge to the jury. Dennis v. State, 93 Ga. 303 (20 tí. E. 315) ; Green v. State, 124 Ga. 344 (7) (52 S. E. 431) ; Tanner v. State, 145 Ga. 72 (1) (88 S. E. 554) ; Smith v. State, 23 Ga. App. 77 (4) (97 S. E. 454). •
    2. The evidence authorized the instructions of which complaint is made in grounds 6 and 7 of the motion for a new trial. However, these instructions related to the charge of murder, and, as the accused was convicted of the charge of manslaughter, they could not have been prejudicial. Dunwoody v. State, 23 Ga. App. 93 (1) (97 S. E. 561), and cases cited.
    3. The 8th ground complains of the failure of the judge to give a requested charge on the law of justifiable homicide. In this the judge did not err, as the charge given was correct and fully covered this issue.
    4. In grounds 9, 10, and 11 it is alleged that the court erred in failing to give certain instructions to the jury. There is no evidence to support such instructions. They could have been founded solely upon the statement of the accused; but, as there was no timely written request therefor, the failure so to charge is not cause for a new trial. See Stev. Dig., vol. 1, p. 469, catchwords “Statement of accused.”
    5. In the light of all the facts of the ease, and. when the entire charge is considered, the court did not err in failing to charge the jury as follows: “An accident is an event that takes place without one’s foresight or expectation; that which takes place or begins to exist without design.”
    6. Although the form of the verdict was changed by one of the attorneys for the State before it was published, this was not error harmful to the accused, as, after the change, the jury was polled and each one of them declared that the verdict as changed and published was his verdict.
    7. There was evidence to support the verdict.
    Decided November 14, 1923.
    Rehearing denied December 5, 1923.
    Conviction of manslaughter; from Atkinson superior court-judge Dickerson. June 9, 1923.

      Levi O’Bteen, Dickerson & Kelley, Casey Thigpen, for plaintiff in error.

      J. D. Lovett, solicitor-general, J. P. Knight, W. D. Buie, contra.
   Bloodworth, J.

Only the 6th headnote needs elaboration. The verdict was as follows: “We, the jury, find the defendant guilty. This — day of —, 191—. Thomas Kennedy, Foreman. Sentence five years; no more nor no less.” The motion for a new trial alleges that after a conference with the judge one of the attorneys for the State so changed the verdict as to make it read: “We, the jury, find the defendant guilty [of] voluntary manslaughter, and fix his sentence at not less than five years and not more than five years in the penitentiary. This the 23rd day of February, 1923;” which was written over the signature of the foreman of the jury. The verdict was then published. Thereupon counsel representing the defendant “objected to the reception of the verdict, upon the ground that the verdict that was rendered by the jury was not received by the court, and the verdict which was read in open court was the verdict which had been prepared by counsel representing the Staíé, and for that reason the verdict should not be received in court; it not being the verdict as rendered by the jury.” Counsel representing the defendant further objected to the verdict as changed, on the ground that, “this having been done in the presence of the jury, who had already made their verdict, which was not received, is prejudicial to the rights of the defendant,” and upon this ground moved the court that a mistrial be declared. The record shows that after the change in the form of the verdict was made, counsel for the defendant requested that the jury be polled. This was done, and each juror stated that the verdict as published after correction was his verdict. To allow the verdict to be so changed was irregular, as the jurors, under instructions from the court, should themselves have made any desired change in their verdict. However, the change resulted in no injury to the defendant. “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; Civil Code (1910), § 5927; Espy v. State, 19 Ga. App. 743 (1) (92 S. E. 229). In Tiflon Ry. Co. v. Butler, 4 Ga. App. 193 (60 S. E. 1088), this court held: “Verdicts are to be upheld if capable of legal intendment. . . They will be construed in the light of the pleadings, the issues made by the evidence, and the. charge of the court.” To give to the verdict in this case “a reasonable intendment,” and construing it in the light of the pleadings and the charge of the court, the only reasonable construction that could be put upon it is that the jury intended to find the accused guilty of voluntary manslaughter. In instructing the jury as to the verdict the judge gave them four forms, to wit, murder, murder with recommendation that the punishment be imprisonment for life, voluntary manslaughter, and not guilty. He told them that in the event they should convict of voluntary manslaughter they should fix the punishment, which could not be less than one nor more than twenty years. The punishment recommended by the jury and included in their verdict makes it certain that they intended to find the defendant guilty of voluntary manslaughter. “Id certum est quod certum reddi potest.” In Monk-Sloan Supply Co. v. Quitman Oil Co., 10 Ga. App. 390 (1) (73 S. E. 522), this court held: “Verdicts are not to be set aside for indefiniteness, if they are capable of being reduced to reasonable certainty by an application of the ordinary canons of construction.” In Giles v. Spinks, 64 Ga. 205, Jackson, J., said: “A verdict is certain which can be made certain by what itself contains or by the record.” In Morgan v. Coleman, 139 Ga. 459 (77 S. E. 579), the third division of the decision is as follows: “Where a deed provided for the securing of the principal debt, and also contained covenants that the debtor would pay the taxes and insurance on the property and the attorney’s fees; and where on the trial of a suit brought to recover the amount of principal and interest of the main debt, and certain amounts as having been paid for taxes and insurance, and attorney’s fees, and to have all of these declared to be special liens on the property, a verdict was returned generally in favor of the plaintiff, but, on inquiry from the court, the foreman of the jury informed him that the intention was to find the full amount of the principal sued for, with interest at a stated per cent, thereon, and for the amounts alleged to have been paid for insurance and taxes, and also the amount of attorney’s fees claimed, there was no error on the part of the court in framing a verdict to carry out this purpose and submitting it to the jury; nor was there error, after the jury had retired and returned with the verdict so framed as their verdict, and each of them on being polled stated that he had agreed to it, in receiving such verdict over objection on the ground that the jury had already found one verdict and could not find another, 'nor on the ground that the judge was invading the province of the jury in making one for them. Smith v. Pilcher, 130 Ga. 350 (60 S. E. 1000); Jordan v. Downs; 118 Ga. 544 (45 S. E. 439); Seaboard Air-Line Ry. v. Howe, [139 Ga.] 429 (77 S. E. 387).” See also Brantley v. State, 87 Ga. 149 (4) (13 S. E. 257); Pool v. State, 87 Ga. 526 (1), 530 (1) (13 S. E. 556); Seifert v. Holt, 82 Ga. 757 (2), 761 (2) (9 S. E. 843); Williams v. Brown, 57 Ga. 304 (4); Fant v. State, 8 Ga. App. 438 (2) (69 S. E. 586); Carter v. State, 8 Ga. App. 471 (69 S. E. 588); Peninsular Naval Stores Co. v. State, 20 Ga. App. 501 (2), 503 (2) (93 S. E. 159); Blackman v. Wilson, 28 Ga. App. 768 (3) (113 S. E. 32); State v. Potter, 16 Kan. 80 (23 L. R. A. 729, note); Robinson v. State, 23 Tex. App. 315 (4 S. W. 904).

Judgment affirmed.

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


author: Brovles, C. J.

text:
    14824.
    Morrison v. The State.
    Decided November 14, 1923.
    Rehearing denied December 5, 1923.
    Indictment for bastardy; from Berrien superior court—Judge Dickerson. June 9, 1923.

      L. G. Underwood, P. H. Saffold, Jeff. S. Story, for plaintiff in error.

      J. D. Lovett, solicitor-general, John P. & Dewey Knight, contra.
   Brovles, C. J.

The verdict was authorized by the evidence, and none of the special grounds of the motion for a new trial requires another hearing of the case.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    14825.
    PATTERSON v. THE STATE.
    A conviction of fornication was authorized by the evidence.
    It does not appear that the court erred, for the reasons assigned, in admitting in evidence the letter purporting to be from the defendant to the woman alleged to have been seduced by him.
    Decided November 14, 1923.
    Indictment for seduction; from Crisp superior court—Judge Crum. June 15, 1923.
    The letter referred to was signed with the defendant’s name, under the words “From your true lover,” and indicated that there had been previous correspondence between them. It was dated July 2, 1921. The date of the alleged sexual intercourse, as shown by the testimony for the State, was August 13, 1923. . From the brief of the evidence it appears that the letter was introduced after the defendant had made a statement to the court and jury, denying the intercourse, and denying that he had courted the girl alleged to have been seduced, or had sought her company, and stating that he knew “absolutely nothing about her, more than in school.” She testified that she was familiar with his handwriting, and that the letter was in his handwriting, and was received by her through the mail, in an envelope addressed to her. He denied that it was written by him. In the motion for a new trial it is alleged that the court erred in admitting the letter in evidence, over the objections of the defendant, then made, “that the execution of the same by the defendant had not been properly proven,” and “that the same was incompetent, inadmissible, and irrelevant.” No evidence outside the letter itself is set out in the motion for a new trial, and the motion contains no statement as to proof of execution or absence of such proof, except the statement made in the objection of the defendant.

      Callaway & DeJarneite, for plaintiff in error.

      Doyle Campbellj solicitor-general, A. Y. Clement, contra.
   Luke, J.

The defendant was tried upon an indictment charging seduction, and was convicted of fornication. He moved for a new trial upon the grounds, (a) that the evidence did not authorize the verdict, and (6) that the court erred in admitting a certain letter in evidence. There was no error in admitting the letter in evidence (see Arnold v. Adams, 4 Ga. App. 56 (2), 60 S. E. 815), and the defendant’s conviction was authorized by the evideuce. See Hopper v. Skate, 54 Ga. 389; Boggs v. State, 11 Ga. App. 92 (74 S. E. 716). It was not error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    14826.
    Simmons v. The State.
    Decided November 14, 1923.
    Conviction of shooting at another; from Berrien superior court —Judge Dickerson. June 9, 1923.

      W. D. Buie, Jeff. S. Story, for plaintiff in error.

      J. D. Lovett, solicitor-general, P. T: Knight, contra.
   Bloodworth, J.

The motion for a new trial contains no special grounds; the verdict is not without evidence to support it, and has the approval of the judge who tried the case, and this court cannot interfere.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


text:
    14827.
    Wing v. The State.
    Decided November 14, 1923.
    Indictment for seduction; from Toombs superior court—Judge Hardeman. May 29, 1923.
    The nolle prosequi was entered in August, 1920. The judge’s order (after stating the case) was as follows: “It appearing to the court that the indictment in' the above-stated case was lost in the fire in the burning of the court-house of Toombs county, and it further appearing that the defendant is not under bond for his appearance at any term of court, and for other good and sufficient reasons, and by and with the consent of associate counsel in said case, the same is, upon motion of the solicitor-general, nolle prosequied.” In January, 1923, the solicitor-general made a motion to set aside this order, for the following reasons: The defendant had not been arrested, had not given bond, and was not in court when the nolle prosequi was allowed and entered, and was a fugitive from justice, and the court did not have jurisdiction of his person. There was no examination of the case in open court before the nolle prosequi was entered. The solicitor-general was the only party who had authority to advise or recommend that a nolle prosequi be allowed, and he had no knowledge of the entering of the nolle prosequi, and no connection with it, and it was, in some way unknown to him, fraudulently obtained. It was not brought to his attention until the first day of the term of court at which this motion was filed. There was no consent to it by associate counsel for the State, or by the prosecutor, or by the female alleged to have been seduced, and they did not know of it until long after the nolle prosequi had been entered. The defendant answered, denying the foregoing allegations, and alleging that the nolle prosequi was prepared and presented to the court by the solicitor-general or associate counsel, and that, as a condition precedent to the signing of the order, the costs of the case were paid to the clerk of the court, and the solicitor-general received his part of the costs.
   Broyles, C. J.

Under the particular facts of the case this court cannot hold as a matter of law that the trial court abused its discretion in setting aside a former judgment of the court ordering a nolle prosequi to an indictment against the defendant.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

On the hearing of the motion the prosecutor, the female alleged to have been seduced, and the solicitor-general testified that they did not consent to the entering of a nolle prosequi. The solicitor-general testified that he had no knowledge of the nolle prosequi until “a short time ago;” that on leaving the court at the close of the term he left the collection of costs with the clerk and the sheriff, and after all the fines and costs had been paid they gave him a check for his part, and he did not examine the bills to see what cases the costs had been paid in, and would not know the particular cases. Associate counsel for the prosecution, who had been employed by the prosecutor, testified that he did not know of the nolle prosequi until “a term or two afterwards;” that his partner told him that Mr. Lankford, counsel for the defendant, “ dogged after him until he had it to do.” The clerk of the court testified that when he made a settlement with the solicitor-general “the solicitor-general received his part of the cost;” he “could not say whether the solicitor-general .went over it and knew whether he was getting his part of the cost or not.” Mr.' Lankford, counsel for defendant, testified that he “did not have anything to do with nolprossing this bill,” and “refused to have anything to do with it.” The court set aside the judgment of nolle prosequi, and the defendant excepted.

Lankford & Rogers, I. H. Corbitt, for plaintiff in error, cited:

Civil Code (1910), §§ 3987-8, 5370, 4032; 128 Ga. 358; 19 Ga. App. 368 (3), 158.

Walter F. Grey, solicitor-general, Enoch J. Giles, contra, cited:

16 Corpus Juris, 437-8; 39 Ga. 394, and cit.; Civil Code (1910), §§ 4584, 4629, 5965.


text:
    14842.
    BLAKEY v. THE STATE.
    This having become merely a moot case, by reason of the payment of the fine imposed upon the accused and his discharge from custody, the writ of error must be dismissed.
    Decided November 14, 1923.
    Indictment for possession of liquor; from Wilkes superior court —Judge Shurley. June 2, 1923.

      Hugh E. Combs, for plaintiff in error.

      M. L. Felts, solicitor-general, contra.
   Bloodworth, J.

Plaintiff in error, in his own behalf, filed a brief in which he stated: “I have paid the fine in this ease, and have been discharged from the court, and my attorney has withdrawn from the case. While this is true, I am innocent of this charge. But, being confined in jail, had to pay the fine in order to be liberated.” Under this statement the questions presented by the bill of exceptions have become moot; and, as courts will not decide moot questions, the writ of error must be dismissed. See Kirksey v. Geer, 31 Ga. App. 52 (119 S. E. 440), and cases cited.

Writ of error dismissed.

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


text:
    14843.
    Causey v. The State.
   Broyles, C. J.

1. The charge on the subject of good character was not erroneous because of failing to state that “good character alone is sufficient to generate a doubt and work an acquittal.” Hill v. State, 18 Ga. App. 259 (1 b) (89 S. E. 351), and authorities cited.

Decided November 14, 1923.

Indictment for larceny; from Bibb superior court—Judge Mathews. June 1, 1923.

John R. Cooper, W. 0. Cooper Jr., for plaintiff in error.

Charles E. Garrett, solicitor-general, contra.

2. None of the other excerpts from the charge of the court, complained of, when considered in the light of the charge as a whole and the facts of the case, contained material error.

3. The verdict was amply authorized by the evidence, and the overruling of the motion for a new trial was not error.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., disqualified.


text:
    14845.
    WALTON v. THE STATE.
    Where it is testified that a confession was freely and voluntarily made, it is incumbent on the defendant to show the contrary; and whether the confession was so made becomes a question for the jury. It is not cause for a new trial in this case that the court admitted testimony as to a confession, over the objection that the confession was not freely and voluntarily made.
    Decided November 14, 1923.
    Misdemeanor; from Wilkes superior court—Judge Shurley. June 2, 1923.

      Eugh E. Combs, for plaintiff in error.

      M. L. Felts, solicitor-general, contra.
   Bloodworth, J.

1. The only special ground of the motion for a new trial alleges that the court erred in allowing witness Haynie to testify to a confession made by the defendant; the objection being that it was not freely and voluntarily made. Haynie swore that “Whatever he (the defendant) said was freely and voluntarily made,” and the evidence shows nothing to the contrary. In Dawson v. State, 59 Ga. 333 (1), it was held that “where witnesses testify that the confessions were freely and voluntarily made, it is incumbent on the defendant to show to the contrary, and whether they were so made or not becomes a question for the jury.” See Price v. State, 114 Ga. 855 (40 S. E. 1015); Jenkins v. State, 119 Ga. 431 (46 S. E. 628); Adams v. State, 129 Ga. 251 (58 S. E. 822, 17 L. R. A. (N. S.) 468, 12 Ann. Cas. 158), and cases cited; Murray v. State, 29 Ga. App. 209 (114 S. E. 907), and citations. The charge on confessions was full and fair. Moreover, practically the same evidence went to the jury without objection from the lips of two other witnesses.

2. There is ample evidence to support the verdict.

Judgment affirmed.

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


author: Broyles, O. J.

text:
    14854.
    Long v. The State.
    Decided November 14, 1923.
    Indictment for manufacture of liquor; from Gilmer superior court—Judge Blaii. June 9, 1923.

      John T. Dorsey, for plaintiff in error.

      John B. Wood, solicitor-general, contra.
   Broyles, O. J.

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

Judgment affirmed.

Lulce and Bloodworth, JJ., eoneur.


text:
    14862.
    GILES v. THE STATE.
    A conviction of voluntary manslaughter was authorized in this ease.'
    Decided November 14, 1923.
    Conviction of manslaughter; from Morgan superior court—Judge Park. June 23, 1923.

      E. R. Lambert, for plaintiff in error.

      Doyle Campbell, solicitor-general, A. Y. Clement, contra.
   Luke, J.

The defendant was tried upon an indictment charging the offense of murder, and was convicted of voluntary manslaughter. The evidence was conflicting and the jury could have acquitted the defendant, but, as they had a right to do, they believed that part of the testimony which made a ease of voluntary manslaughter. There was no error'in overruling the motion for a new trial, which was based on the general grounds only.

Judgment affirmed.

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


text:
    14866.
    Sanford v. The State.
    Decided November 14, 1923.
    Indictment for manufacture of liquor; from Floyd superior court—Judge Wright. June 28, 1923.

      James Maddox, for plaintiff in error.

      E. 8. Taylor, solicitor-general, J. F. Kelly, contra.
   Bloodworth, J.

1. “In the absence of a written request, the court did not err in failing to charge on the weight to be given to evidence of good character.” McLendon v. State, 7 Ga. App. 687 (2) (67 S. E. 846); Mills v. State, 17 Ga. App. 116 (86 S. E. 280); Ellison v. State, 137 Ga. 193 (7) (73 S. E. 255).

2. “In the absence of a written request so to do, it is not error for the trial judge to fail to charge the law of the theory of a case presented solely by the prisoner’s statement.” Robinson v. State, 114 Ga. 56 (4) (39 S. E. 862). See also Grant v. State, 19 Ga. App. 229 (91 S. E. 338); Cook v. State, 134 Ga. 347 (4) (67 S. E. 812).

3. Under the ruling in Wilder v. State, 148 Ga. 270 (2) (96 S. E. 325), a new trial is not required because the court, in instructing the jury in reference to the defendant’s statement to the court and jury, said: “He has made a statement, not under oath, which you may believe in preference to the sworn testimony.”

4. In his brief counsel for the plaintiff in error admits that there is sufficient evidence to support the finding of the jury, and, as no error of law was committed, the court properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.


text:
    14882.
    GIBBS v. THE STATE.
    No error requiring a new trial was committed in this case, and the conviction was authorized by the evidence.
    Decided November 14, 1923.
    Indictment for abandonment of children; from Berrien superior court—Judge Dickerson. June 9, 1923.

      B. A. Hendricks, for plaintiff in error.

      J. D. Lovett, solicitor-general, W. L. Buie, contra.
   Luke, J.

The defendant was convicted of abandoning his minor , children, in violation of law. The rulings of the court upon the admissibility of evidence were not error. The charge of the court, when read in its entirety, was adjusted to the issues in the case, and was not error for any of the reasons pointed out in the special grounds of the motion for a new trial. The court’s refusal to give the requested instructions to the jury in the exact language requested, in view of the charge as a whole, was not error. In view of the instructions by the court to the jury, the motions to declare a mistrial were properly overruled. The venue of the offense charged was shown to have been in Berrien county, and there was evidence authorizing the defendant’s conviction. The overruling of the motion for a new trial was not error for any reason assigned.

Judgment affirmed.

Broyles, O. J., and Bloodteorth, J., concur.


text:
    14991.
    STRICKLAND v. THE STATE.
    The verdict of voluntary manslaughter was authorized, and no error was shown by the motion for a new trial.
    Decided November 14, 1923.
    Conviction of manslaughter; from Eulton superior court—Judge• Humphries. August 3, 1923.

      Thomas B. Broten, for plaintiff in error.

      John A. Boylcin, solicitor-general, B. A. Stephens, contra.
   Bloodworti-i, J.

1. The 1st ground of the amendment to the motion for a new trial is a “double-barrel” one. This ground complains of the refusal of the court to give a requested charge, and alleges error in an excerpt from the. charge. We find no error in the instructions given, and none in the refusal to give the charge requested. So far as the request was legal and pertinent, it was covered by the charge given.

2. Under the foregoing ruling the second special ground of the motion for a.new trial-points out no error.

3. The couTt did not err in giving in charge to the jury the law relating to voluntary manslaughter. There was evidence sufficient to support a verdict for this crime.

4. As no error of law was committed, and the finding of the jury has been approved by the trial judge, this court cannot interfere.

Judgment affirmed.

Broyles, G. J., and Lulce, J., concur.


text:
    15004.
    MILLS v. THE STATE.
    Failure to charge the jury (without request) on the law of circumstantial evidence was not error, a conviction not being wholly dependent upon such evidence.
    The charge of the court on conspiracy, in the light of the record and of the remainder of the charge, was not cause for a new trial.
    The evidence authorized the conviction.
    Decided November 14, 1923.
    Indictment for possession of liquor; from Fulton superior court —Judge Hardeman (motion for new trial before Judge Humphries). August 3, 1923.

      H. A. Allen, for plaintiff in error.

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

The defendant was convicted of violating the prohibition statute, by having possession and control of intoxicating liquor. Ilis case is here for review upon the grounds, (a) that the evidence did not authorize the verdict; (6) that the court erred in failing to charge the law of circumstantial evidence; and (c) because the court charged the jury that if the defendant possessed or controlled any quantity of whisky, or if they believed that with others he conspired to violate the prohibition law, and was a party with others in possessing, controlling, or having any quantity of intoxicating liquor, he would be just as guilty as the principal offender; it being contended that the charge as to conspiracy was error, because “there was no allegation in the indictment and no evidence in the record authorizing the same.” The evidence amply authorized the defendant’s conviction, which was not dependent wholly and entirely upon circumstantial evidence, and the failure of the court to charge upon the law of circumstantial evidence was not error. The other assignment of error upon the charge of the court, when considered in the light of the record in this case and the charge of the court as a whole, is without merit. The trial judge having approved the finding of the jury, he properly overruled the defendant’s motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


author: Bloodwortii, J.

text:
    15005.
    Toney v. The State.
    Decided November 14, 1923.
    Indictment for possession of liquor; from Fulton superior court —Judge Shurley (motion for new trial before Judge Humphries). August 8, 1923.

      G. G. Battle, for plaintiff in error.

      John A. Boyhin, solicitor-general, B. A. Stephens, contra.
   Bloodwortii, J.

1. Under all the facts of the case, there is no merit in any of the grounds of the amendment to the motion for a new trial.

2. There is ample evidence to support the verdict, which is approved by the judge who tried the case; and, as no error of law was committed, this court is powerless to interfere.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.