text:
      652.

    ALBANY PHOSPHATE COMPANY v. HUGGER BROS.
    1. The rule of the common law which forbade the filing of contradictory pleas does not prevail in this State. Under the provisions of the Civil Code, §5047, a defendant may rely at one and the same time on a demurrer, a plea in bar, and a plea in discharge. Pleas, however conflicting, do not oust each other.

      (a) The admission by the defendant of a prima facie ease in the plaintiff, in order to get the opening and concluding argument before the jury, whether made in the original answer or by amendment, does not estop the defendant from complaining of prior rulings on demurrer, to which exceptions pendente lite have been filed.
    2. Where the contract does not prescribe otherwise, the certificate of an architect as to the satisfactory completion of a building need not follow any particular form.
    3. Where a contract has been broken, the law deeks to give such damages as will put the injured party in the same position as if the contract had been kept; subject, however, to the exception that damages which are speculative, consequential, or of a nature not reasonably within the contemplation of both parties as a natural and probable result of a breach, are not recoverable.

      (a) Where a builder agrees to.erect a building within a certain time, knowing that it has been leased from the time named for its completion, and breaks the stipulation as to time, he is ordinarily liable to the owner for loss of rent, but not for loss of interest on the capital invested in the building, nor for damages paid, by the owner to a lessee in accordance with a stipulation of the lease contract, as to which the builder had no knowledge.
    4. Where an amendment to pleadings has been, in term, duly allowed over objection by demurrer, it is not, after the term has expired, within the power of the court to revoke the order of allowance, and on motion strike the amendment; but harmless error in this regard will not authorize, the grant of a new trial.
    5. A juror over sixty years old is exempt, but not disqualified to serve in a civil case. His exemption is a privilege, but not a disqualification.
    6. “It has long been the rule in this State, when tlie admissibility of evidence is doubtful, to admit it and leave its weight and effect to be determined by the jury.”
    7. The charge of the court was accurate, fair, comprehensive of the issues in the ease, and free from material error. The verdict is amply supported by the evidence; and no reversible error appears.
    Complaint, from city court of Albany — Judge Crosland. June 26, 1907.
    Argued November 12, 1907.
    Decided September 30, 1908.
    Hugger Brothers contracted with the Albany Phosphate Company “to build a large plant for the manufacture of acid phosphate and fertilizers, according to certain plans and specifications made by an architect and engineer, P. S. Gilchrist. The contract reads as follows: “This agreement, made and entered into this 17th day of May, 1905, between the Albany Phosphate Company, of Albany, Georgia, a corporation organized and existing under the laws of the State of Georgia, hereinafter called the ‘company/ party of the first part, and Hugger Brothers,' of Columbia, Tenn., hereinafter called the ‘builder/ party of the second part, witnesseth: First: Said builder hereby agrees with said company that he will well and substantially build the fertilizer buildings near the city of Albany, according to the plans and detailed specifications furnished by PeterS. Gilchrist, Charlotte, N. C.; said work to be executed in the most sound, substantial, and.workmanlike manner, and with the best materials of their respective kinds, the cost of which (except the Glover tower frame), with all iron work, nails, scaffolds, ladders, implements of every kind, is to be borne by said builder, for the sum of forty thousand and five hundred dollars, to be paid to the said builder by the said company. Second: The builder shall be paid in the following manner; that is to say, when Peter S. Gilchrist, architect and engineer, shall have certified that the work has been, completed to his satisfaction, and that the builder has complied with, the conditions of the aforesaid plans and specifications, then said company agrees that when said certificate shall have been presented to it, to pay the aforesaid sum of $40,500; payments to be made as is customary during construction, namely', eighty [sic] .per cent, every thirty day's, as the work progresses, the balance on completion. In no case is the payment to be made within twenty per cent, of the work and materials on the ground. Third: Any alterations or changes that the company may wish to have made during the progress of the work shall be done by said builder in accordance with, the wishes of said company', and the difference in said cost, if any', shall be approved by P. S. Gilchrist, engineer, before settlement shall be made. In no case shall the charges be greater in proportion to the work done than the work according to the original plans would have cost. Fourth: The said builder further agrees with the said company that he will finish the whole of said work according to the full intent and meaning of the said plans and specifications, and to the satisfaction of P. S. Gilchrist, engineer, within one hundred and twenty working days, and will have ready for said company the acid chamber building within forty working; dajrs for the lead work to be done, and will have the fertilizer mill building ready for machinery to be placed therein within seventy working days from the time the railroad tracks are ready to receive material. The same builder will be responsible to the company for any delay caused by his failure to complete the building according to contract.” (Signed by the parties.)
    The builders, claiming to have finished the buildings according to contract, filed suit for an alleged balance due of $9,366.44. The defendant, claiming that the builders had delayed the completion of the building for a period of three months, whereby it had suffered various items of damage, contended for a recoupment therefor. The items of damage claimed were as follows: (1) the estimated profit on the output of the factory during the period of delay, amounting to $36,450; (2) the rental value of the plant during this same period, amounting to $9,000; (3) tire, interest on. the sum invested for the period of delay, amounting to $3,500; and (4) the amount which the defendant had been compelled to pay the lessee of the building in accordance with its contract with said lessee, amounting to $9,053. The court struck the portions of the answer alleging the third and fourth items of damage as above; to which rulings the defendant excepted pendente lite. The court also overruled general and special demurrers to the plaintiffs’ petition; to which rulings the defendant likewise preserved exceptions pendente lite. The trial resulted in a verdict in favor of the plaintiffs, for $7,666.44. The defendant moved for a new trial, which was denied. The bill of exceptions complains of the rulings pendente lite, and also of the overruling of the motion for a new trial. The further facts necessary to an understanding of the points thus raised are stated in the opinion.

      Olin J. Wimberly, Wooten & Hofmayer, for plaintiff in error.

      Jesse W. Walters & Sons, contra.
   Russell, J.

(After stating the foregoing facts.)

After the court had made the several rulings on demurrer, adverse to the defendant, to which exceptions pendente lite were preserved, and before the introduction of any testimony at the trial, the defendant admitted a prima facie case in the plaintiffs, in order to obtain the opening and concluding argument before the jury; and, in the trial of the case, it availed itself of this right. The defendants in error contend that this court should not consider any of tbe exceptions pendente lite, for the reason that this admission is a waiver of the defendant’s right to complain thereof, estopping and precluding it from complaining of any adverse ruling-made prior to such admission. So far as our investigation has gone, the exact point thus raised has never been passed upon by this court or by the Supreme Court; and its proper determination necessitates a consideration of the basis of the right to open and close, and of the nature of the admission which the defendant must make-in order to deprive the plaintiff thereof. The reason back of the rule which gives this right to the plaintiff in the first instance is that he has the burden of carrying the affirmative of the issue. The law recognizes that it is harder to build than it is to tear clown, and so seeks to do even-handed justice by giving him who> has the harder task — the burden of proof as to the issue between the litigants — the advantage of the argument. Generally the issue is the truth of -the facts alleged in the plaintiff’s declaration; and the right to open and close the argument belongs by right to him. But if the defendant admits those facts which show a prima facie cáse in the plaintiff, and seeks to avoid or defeat such prima faciecase by the introduction of new facts by way of an affirmative defense, as to such a defense he has the burden of carrying the affirmative of the issue, and the law gives him the right to open and close the argument before the jury. For example, where the defendant at common law pleaded the general issue, the right to-open and close belonged to the plaintiff; but if the defendant pleaded by way of confession and avoidance, the right to open and close belonged to him, for the issue between the parties was not then the truth of the facts alleged in the plaintiff’s declaration (they being admitted), but the truth of the new matter alleged in the defendant’s plea. Shipman’s Common Law Pleading, 163, 181; Andrews’ Stephen on Pleading, 148, 229; 15 Enc. Plead. & Prac. 187, 190; Augusta Factory v. Barnes, 72 Ga. 217 (63 Am. R. 838); Seymour v. Bailey, 76 Ga. 338. The admission must extend to every fact necessary to show, without proof, a right in the plaintiff to recover on his case as laid in the petition. Consequently, the issue between the parties will not be as to the facts admitted, but as to new facts introduced by the defendant by way of confession and avoidance. Crankshaw v. Schweizer Mfg. Co., 1 Ga. App. 363 (58 S. E. 222); Augusta Factory v. Barnes, supra; Abel v. Jarratt, 100 Ga. 732 (28 S. E. 453); Reed v. Sewell, 111 Ga. 880 (36 S. E. 937); Massengale v. Pound, 100 Ga. 770 (28 S. E. 510); Brunswick R. Co. v. Wiggins, 113 Ga. 842, 846 (39 S. E. 551, 61 L. R. A. 513). The admission is conclusive upon the defendant, and he can not thereafter deny the facts admitted, nor withdraw the admission. Fisher v. Jones Co., 108 Ga. 490 (34 S. E. 172); Harris v. Amoskeag Lumber Co., 101 Ga. 641 (29 S. E. 302).

There is no real inconsistency in urging a general demurrer and m admitting a prima facie case for the purpose of obtaining the opening and conclusion. The one relates to the sufficiency of the pleadings as a matter of law; the other to the establishment of the allegations of the pleadings as a matter of fact. At the demurrer stage of the case the petition must present a case which, upon its admitted facts, entitles the plaintiff to recover as a matter of law; on the trial the plaintiff prima facie recovers if he prove, or if the defendant admit, those facts which he has alleged in his petition, irrespective of their legal sufficiency to constitute a cause of action. Our code expressly recognizes the right of a defendant to demur, plead in bar, and plead in discharge, without legal objection. When, therefore, in the present case, the defendant pleaded in discharge, by way of confession and avoidance (for that is the effect of the plea), its rights arising under the demurrer were not waived, nor was it estopped from insisting thereon. When the demurrer was overruled, the decision of the judge became the law of the case until reversed; the defendant had the right to give his case direction accordingly, and if the truth of the- transaction, viewed in the light of the court’s ruling, threw the burden of proof on the defendant, it was entitled to the opening and conclusion of the argument. Crankshaw v. Schweizer Mfg. Co., supra; Stiles v. Shedden, 2 Ga. App. 317 (58 S. E. 515).

The general demurrer was based on the ground that the petition did not allege that the certificate of the architect had been, obtained as prescribed by the contract; and that no reason was alleged why said certificate had not been obtained. Such an allegation is a condition precedent to an action on the contract. Elmore v. Thaggard, 130 Ga. 702 (3); Lloyd on the Law of Building, §20. It will be noted, however, that the contract does not prescribe any particular form of certificate, and no particular form is made necessary by law. Lloyd, supra, §19; Kirk v. Bromley Union, 2 Phill. 640, 17 L. J. (N. S.) Ch. 127. “When an architect certifies that when some slight additions should be made to the work it would be acceptable, and it appears that these additions have been made, and on notice thereof no further objections are made, it will be a sufficient acceptance.” Mills v. Weeks, 21 Ill. 561. The certificate in the present case is as follows: “I have looked over the buildings and accepted same on your behalf, with the exception of the skylights on the fertilizer building, as some of these leak. Mr. Hancock is to go over them to-morrow systematically, and repair any broken putty joints and have all putty joints painted. When this is done I think everything will be satisfactory. Peter S. Gilchrist.” This certificate shows that the architect was satisfied that the builder had substantially complied with his contract; and there is no contention that the defects pointed out were not remedied. It does not appear, therefore, that the court erred in overruling the general demurrer. '

The question presented by the striking Of the defendant’s answer relates to the proper measure of damages. The portions of the answer which the court struck alleged that the defendant had been damaged because of the alleged delay of three months: (1) in a sum equivalent to the interest on the amount invested in the factory; and (2) in the sum of $9,053, which the defendant had been forced to pay under the following circumstances: Prior to the time fixed in the building contract for its completion, the defendant had leased said plant to the Tennessee Fertilizer Company, which company had a similar plant at Montgomery, Alabama, and the lease contract provided that if the building at Albany was not completed by the day named in the building contract for its completion (from which date the lease was to begin), the defendant would pay its lessee the difference in freight rates between Montgomery and Albany, to make good the deficiency in output, due to the non-completion of the building in time to manufacture a full season’s output at Albany. It was further averred, in this connection, that at the time the building contract was entered into, and during the period of its construction, the plaintiffs knew that the plant had been leased to the Tennessee Fertilizer Company.

The law always seeks to give a remedy commensurate with the injury. “The injured party is to be placed, as near as may .be, in the situation he would have occupied if the wrong had not been committed.” Wicker v. Hoppock, 6 Wall. 98; Beale’s Cases on Damages, 486. Accordingly, where a promise has been made and broken, the promisee ought to be put as near as may be in the same situation he would have been in if the promise had been kept. Roper v. Johnson, L. R. 8 C. P. 167; Brown v. Muller, L. R. 7 Exch. 319. On the other hand, where such damages are so remote, consequential, or speculative, that they can not. reasonably be said to have been in the contemplation of the parties as a result of a breach of the contract, the law does not allow their recovery; for this would be unjust to the promisor. Civil Code, §3799; Stewart v. Lanier House Co., 75 Ga. 585; Hadley v. Baxendale, 9 Ex. 341, 23 L. J. Ex. 179, 18 Jur. 358, 26 Eng. L. & Eq. 398. The plaintiffs can in truth say that the damages set up in the above pleas are not such as would naturally and in the usual course of things flow from a breach of his obligation; nor were they in his contemplation when the contract was made. See Stewart v. Lanier House Co., 75 Ga. 583; Frye v. Maine R. Co., 67 Me. 414; Fox v. Harding, 7 Cush. (Mass.) 516, 522. It must be borne in mind that while the plea does allege that the builder knew at the time he signed the building contract that the building had been leased to the Tennessee Fertilizer Company, it is not stated that the plaintiff had any knowledge of that stipulation in the lease contract as to the payment of freight. So far as appears from the allegations of the plea, the builder was not even aware that the alleged lessee had a plant at Montgomery, Alabama. “Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendant, and thus known to both parties, the damages resulting from the breach of such a contract which they would reasonably contemplate would be the amount of injury which would ordinarily follow from the breach of a contract under those special circumstances, so known and communicated. . . Had the special circumstances been known, the parties might have specially provided for the breach of contract by special terms as to the damages in that case, and of this advantage it would be unjust to deprive them.” Hadley v. Baxendale, supra. Before damages are recoverable when they flow from inde-f pendent contracts which the promisee has entered into on the faithl of the promise being kept, it must appear that the promisor knew that a breach of his promise would result 'in such specific damages to the promisee. 1 Sutherland on Damages (3d ed.), §§50-53; 1 Sedgwick on Damages (8th ed.), §§149, 159 et seq.; Hammer v. Schoenfield, 47 Wis. 455; Van Winkle v. Wilkins, 81 Ga. 93 (12 Am. St. Rep. 299, 7 S. E. 644). The mere fact that the builder had notice of the fact that the building had been leased would not be sufficient to charge him with notice of the clause of the contract as to the payment of the difference in freight rates between Montgomery and Albany. Horne v. Midland Ry. Co., L. R. 7 C. P. 583; Sedgwick, ubi supra, §163. Knowledge that the building has been leased, makes the builder liable for the rental value of the property (as was held by the learned judge in the case at bar) t during the period of delay, but for no more. 3 Sutherland, supra, §3130 et seq.; Lloyd, supra, §41. What we now rule is not in. conflict with the cases to-which we have been cited. In Gore v. Malsby, 110 Ga. 894 (36 S. E. 315), it was held that damages in the nature of expenses necessarily incurred because of the breach of the contract, so, too, profits capable of exact computation, directly due to the breach, and of such nature that they must have been within the contemplation of the parties, are recoverable. To the same effect are the holdings in the cases of Walden v. Western Union, 105 Ga. 275 (31 S. E. 172), and Van Winkle v. Wilkins, supra. These cases are rather in’ harmony than in conflict with what we have above stated. Compare Masterton v. Mayor of Brooklyn, 7 Hill (N. Y.), 62 (42 Am. D. 48).

Certainly it follows, from the rules we have discussed above, that interest on the sum invested was not a proper item of damage in this case. Such an item would not put the promisee in the position he would have been in if the promise had been kept; nor could such an item have been in the contemplation of the parties at the time they made the .contract. When money is invested in a building, the owner loses rent, and not interest. Interest on the-money invested in a building can -not be used as a measure of damage in such a case as, this, for the rental value of a building is sometimes much less than the interest on the investment, and sometimes far in excess of the legal rate of interest.

It is urged, however, that the court erred in striking the portion of the answer setting up the claim for interest during the period of- delay, for, the following reason: Defendant filed this portion of its answer by way of amendment, at the December term, 1906, at which time the court allowed the same, as shown by the following order entered thereon: “The foregoing amend-' ment being offered by the defendant, the same is hereby allowed, and demurrer thereto overruled.” No exceptions pendente lite were filed by the plaintiffs. Subsequently, at the February term, 1907, the court struck the plea, as appears from, the following order entered thereon: “Upon motion of plaintiffs, the foregoing plea is hereby stricken.” The defendant contends that, irrespective of the legality of the damages claimed in the plea' the court having allowed it at the December term and overruled- the plaintiff’s demurrer thereto at that time, the judgment could not at a subsequent term be changed into one disallowing the plea. We think that this contention is sound. An oral motion to dismiss the plaintiff’s case, because no cause of action is set out in the petition, may be made at any time before verdict. Kelly v. Strouse, 116 Ga. 872 (43 S. E. 280); Capps v. Edwards, 130 Ga. 149. But “where an amendment to pleadings has been, in term, duly allowed, it is not, after the term has expired, within the power of the court to revoke the order of allowance and strike the amendment on the ground that it was in the first instance erroneously allowed.” McCandless v. Conley, 115 Ga. 48 (41 S. E. 256). The judgment on the demurrer is entirely without the-power of the judge to review or revise after the expiration of the-term at which it was granted. Sims v. Ga. Ry. & Elec. Co., 123 Ga. 643 (51 S. E. 573); Matthews v. State, 125 Ga. 248 (54 S. E. 192); Dolvin v. American Harrow Co., 125 Ga. 699 (54 S. E. 706); Kelly v. Strouse, supra. In the present ease, however, the error does not authorize the grant of a new trial; for it appears-that such error was harmless to the defendant. Every one of the pleas asserted that there had been an inexcusable delay of about three months in the completion of the building, and claimed damages during that time; first, loss of rent; second, loss of profits; and third, loss of interest. The pleas as to the loss of rent and loss, of profits were allowed and evidence thereunder was presented to the jury. Now in the first place, before allowing damages under’ any one of these pleas, the jury must have found that there was delay. The evidence on the issue of delay or no delay was all allowed. to go before the jury under the pleas claiming loss of rent and loss of profits. Therefore the striking of the plea as to loss of interest did not preclude the defendant from introducing every particle of its evidence on the preliminary question of delay. Even if this plea had been allowed, the evidence thereunder as to this feature of the case would have been the same; and consequently the finding of the jury as to the question of delay necessarily would have been the same. In the second place, the undisputed evidence at the trial was that the rental value of the property was $3,000 a month; and that the loss of profits was about $12,000 a month. The highest amount claimed under the plea alleging loss of interest was about $1,200 a month. The jury could not have assessed damages during the period of delay actually found for loss of rent, loss of profits, and loss of interest. In the nature of things the defendant could not have lost profits, rent, and interest. Therefore, under the undisputed evidence, the jury must have given the defendant the benefit of a more liberal measure than they could have given it if the plea as to interest had been allowed. It conclusively appears, therefore, that the striking of this plea could not have harmed the defendant; and therefore a new trial will not be granted. Realty Co. v. Ellis, ante (61 S. E. 832); Southland Knitting Mills v. Tennille Yarn Mills, ante, 753 (62 S. E. 532).

This brings us to the motion for a new trial. The defendant challenged one of the jurors on the ground that he was over sixty years of age (which fact was admitted by the juror), and the challenge was overruled. By Penal Code, §973, it is stated that it is a ground of challenge that the juror is over sixty years of age. Looking to the wording of this section and to the act from which it was codified (Acts 1855, p. 229), it is clear that it was intended to apply only to criminal cases. This is conceded to have been the original intention of the legislature, but it is insisted that the codifiers of 1895 have made the section alike applicable to both civil and criminal eases. In the Civil Code, §4452, it is said: "The law in reference to grand and petit jurors; to jury commissioners; to the selection, drawing, impaneling, and other matters relating to jurors; being in the main [italics ours] applicable alike to civil and criminal cases, is omitted here, but will be found in the criminal code.” The words italicized show that there was no intention to work a change in the law relating to jurors; and the whole section clearly indicates no more than an intention on the part of the codifiers to eliminate from the code useless repetition. By the act of 1875 (Acts 1875, p. 98), now Penal Code, §867, it is provided that persons over sixty years of age are exempt, hut not disqualified for jury service in both civil and criminal cases. There is an apparent conflict between section 867 and section 973; the latter section is based on a law passed in 1856, and the former on a law passed in 1875; it would seem, therefore, that the later act would control. However, it is not necessary for us to rule upon this. The decision of the Supreme Court in the ease of Carter v. State, 75 Ga. 747, has never been overruled or changed by any act of the legislature. In that case it is held that a person over sixty years of age is exempt, but not disqualified to serve as a juror. The exemption was granted for his own benefit; and if he does not object to serving, tli^re is no reason why the law should disqualify him. This is the general rule. 17 Enc. Pl. & Prac. 1116, 1177.

It was conceded that rainy days were to be excluded from the one hundred and twenty working days prescribed by the contract for the completion of the buildings; but it was a sharply contested issue as to how many rainy days there were during this period. One of the defendant’s witnesses testified that the entire time lost on account of rain was two and one-half days. One of the plaintiffs’ witnesses testified as follows: “I kept a calendar on the wall, and when it rained I marked that calendar; 1 marked it up until December, and in December the calendar disappeared, and I have got the weather bureau of Albany’s reports, and they are right with that calendar, so P have got to the best of my recollection. The weather bureau verified what I had on my calendar; for some cause or other that calendar was taken away from there.” The defendant objected to so much of the above evidence as refers to the report of the weather bureau, on the ground that it violates the best-evidence rule. A witness can not prove the contents of a written instrument by parol, but must introduce the instrument itself, if it is in existence and accessible. On the other hand, a witness may testify to any fact which he recollects; and for the purpose of refreshing his memory he may refer to any written instrument which would .aid him. Civil Code, §5284. The only limitation is that he must ultimately testify from his recollection as thus refreshed. Shrouder v. State, 121 Ga. 615 (49 S. E. 702); Lenney v. Finley, 118 Ga. 427 (45 S. E. 317); 1 Wigmore on Evidence, §758. It is often difficult to draw the line between refreshing memory from written aids, and testifying to the contents of a written instrument; because when a witness testifies that by referring to a written instrument he recollects a fact, he is indirectly testifying that the fact is contained in such instrument; else how was his recollection'refreshed by referring to it? When, therefore, in the present case the witness testified that he had verified his calendar by the report of the weather bureau, and that he remembered there were fourteen rainy days, he does indirectly state that the weather bureau report shows fourteen rainy days. But in such a case the recollection of the witness, and not the weather bureau report, is the evidence. When read in connection with the context, the statement of the witness is susceptible of the construction that he recollected that there were fourteen rainy days; this fact having been fixed in his memory because he had kept a record on a calendar, and had refreshed his memory by verifying the calendar with the report, of the weather bureau. “If upon looking at any document he can so refresh his memory as to recollect a circumstance, it is sufficient; tod it makes no difference that the memorandum was not written by himself, for it is not the memorandum that is the evidence, but the recollection of the witness.” Henry v. Lee, 2 Chitty, 124. See Miner v. Phillips, 42 Ill. 141; Huff v. Bennett, 6 N. Y. 337; State v. Lull, 37 Me. 246; Bank v. Zorn, 14 S. C. 444 (37 Am. R. 733). The evidence was of that doubtful character which, in our opinion, would legalize its admission 'and leave its weight for the jury. “Doubtful evidence is to be admitted rather than excluded.” Savannah R. Co. v. Flannagan, 82 Ga. 579 (9 S. E. 471, 14 Am. St. R. 183); W. & A. R. Co. v. Young, 83 Ga. 512 (10 S. E. 197). “It has long been the rule in this State, when the admissibility of evidence is doubtful, to admit it and leave its weight and effect to be determined by the jury.” Goodman v. State, 122 Ga. 111-118 (49 S. E. 922). Judgment affirmed.


source: Caselaw Access Project

author: Russell, J.

license: Public Domain

text:
    745.
    WOODALL v. THE STATE.
    1. The right of a defendant in a criminal trial to make to the court and jury such statement as he may deem proper in his defense is not to be governed or restricted by the rules controlling the admissibility of evidence. The statement of the defendant can properly include a statement of the reasons which influenced his actions in the transaction under consideration, even though his actions were dependent upon or caused by the acts of others, which he may also properly relate. It is error to interrupt a defendant .in making - his statement, merely because, , under the rules of evidence, the statement made by him would be technically objectionable, if the facts stated by him are in fact connected with those facts upon which he bases his defense.
    2. A minister of the gospel is not guilty of disturbing divine worship because, by his preaching upon an occasion when he bona fide claims the right to do so, another is prevented from occupying the same pulpit. The statute of this State against disturbing divine worship was not designed as a means of determining the respective rights of contesting claimants to a benefice.
    Indictment for disturbing worship, from city court of Americus —Judge Crisp. August 12, 1907.
    Argued October 9, 1907.
    Decided September 30, 1908.

      Blalock & Cobb, for plaintiff in error.

      F. A. Hooper, solicitor-general, Zach. Childers, solicitor, contra.
   Russell, J.

We hold the judgment of the lower court, refusing the defendant a new trial, to be erroneous, upon two of the - exceptions made in the record.

The defendant was proceeding to make his statement to the jury when he was interrupted, as we think, improperly by the trial judge. As appears from the record, the defendant had stated to the jury as follows: “I was up to Mount Mary church last-third Saturday and Sunday in April. On Saturday afternoon they held a conference and made resolutions that brother Bedding could not preach there the third Sunday, as he was there Saturday and did not come into church at all. I was elected pastor of Mount Mary church, and as delegate to Mount Pilgrim association. I went up to Macon, Ga., as a delegate from Mount Mary church, as the minutes will show, to Mount Pilgrim Primitive Baptist association, held at Dennis church, near Macon, Ga., on October 4th and 6th, 1906,” when the court stopped him and said, “You must confine your statement to Sunday, or go down;” and thereafter the defendant, in obedience to the court, was required to confine his statement to what occurred on the Sunday on which the offense was said to have been committed. We think this interruption of the defendant’s statement was an abridgement of his legal right to make such statement as he deemed proper in his own defense, and, as such, demands the grant of a new trial. We have heretofore, in Richardson v. State, 3 Ga. App. 313 (59 S. E. 916), expressed our view upon the right of the defendant in a criminal trial to make, without necessary embarrassment, a statement which is not governed by the rules which control the admissibility of' evidence. Upon this subject the court was not divided in opinion. In the present case we think that the defendant had the right to state, as he was doing at the time he was interrupted, the prior transactions, which were reasons influencing his actions on the Sabbath in question, and any facts from which the jury might have inferred that he in fact violated no law in preventing Bedding from preaching by taking charge of the services and preaching himself, or at least might properly have concluded that he .did not intend to disturb divine worship. lie had the right to state to the jury the authority by which he assumed to preach, and that. Bedding had been unfrocked, if such was the case.

The facts in the present case are not similar to those in Montross v. State, 72 Ga. 262 (53 Am. R. 840), Wells v. State, 97 Ga. 210 (22 S. E. 958), or Nero v. State, 126 Ga. 554 (55 S. E. 404). In the Montross case the defendant Was properly prevented from reading to the jury, as a part of his statement, outrageously vulgar extracts from other publications, as a justification of his own violation of law. In the Wells case there was an attempt to read a letter as part of the statement; and the same, thing was true in Nero’s case, in which the-“attempt to bolster up his unsworn statement by making profert of documents, letters, or the like” is condemned; but in the present case the minutes kept by each faction of this church had been introduced, and hence the defendant here was not making the minutes a part of his statement without introducing them, and thus unfairly depriving the State of the opening and concluding argument. The criticism on this practice is expressed by Judge Evans in Nero’s case, as follows: “Without such proof he can not place them before the jury as corroborating evidence of what he says; it would be extending his privilege far enough to accord him the right of making a statement to the. effect tliat he had received a document or letter of a certain purport, without permitting him to produce the same and read it for the purpose of convincing the jury of its existence or genuineness.” •It appears from the record in this case that the court had previously permitted a set of minutes to be introduced in testimony, showing that Bedding had been turned out of the church and this defendant selected to preach in his stead, as well as another set, showing that Bedding was pastor. It was for the jury to say which was the truth. With this evidence in, the defendant certainly had the right to state that he was acting upon the faith of his connection with, and of his authority in, the congregation, and the fact that he had gone as a delegate from Mount Mary church was not an uncorroborated circumstance, otherwise inadmissible, made merely to bolster up his statement. The minutes, were in evidence. Certainly the defendant had the right to call the attention of the jury to what those minutes showed, as well as to state that it was upon the faith of the facts evidenced by the minutes that he acted. In each of the cases to which we have been referred, and which are stated above, the defendant was attempting to prove by his statement facts not in evidence, which could be better supported by proper evidence. In the present case the evidence had been introduced. The defendant was merely referring to and explaining his connection with this evidence, as we think he had a right to do.

Begardless of the error in interrupting the defendant, in his statement, we think the verdict of guilty was without evidence to-support it, and, therefore, contrary to law. It is manifest from the record that there was conflict between two rival factions in a negro church, as to which was entitled to carry on religious services at Mount Mary church. It is undisputed that the plaintiff in error was a preacher, and all that he did or said on the occasion which is the subject-matter of the indictment was directed to carry out the sole object of preaching himself instead of letting the rival pastor preach, at the time and place set out in the presentment, and to the congregation assembled. It is undisputed that he wanted to carry on divine worship, and not to prevent it, and that, as a matter of fact, divine worship was carried on. It is true, his ministry might have prevented some one else from ministering at the same time to the spiritual needs of the flock, but as the evidence fails to show that the defendant did anything more than prevent his contesting brother from preaching, by preaching himself, we can not hold that this comes within any of the allegations of the presentment, even if it is in any event a crime.

The statute which forbids the disturbance of a congregation of persons, lawfully assembled for divine worship, is intended to protect citizens in the right of worshiping the Deity in their own way, without the slightest molestation or hindrance. It is directed against any one who in any way does anything which will prevent religious services. But the statute was never designed to be used as a means of settling, by a criminal prosecution, the respective rights of contestants for the privilege of carrying on divine worship at a particular time or in a particular house of worship. That" complete separation of church and State which is absolutely essential, no less to our political than to our religious liberty, forbids the State to recognize either of two contesting factions as the lawful congregation, which has been lawfully assembled at a particular church for divine worship (where the purpose of each is to carry on divine worship), except under the ordinary rules of evidence which shall disclose which organization or faction is legally entitled to the possession of the premises. In the absence of such evidence, and where it is plain, as in the present case, that the only purpose of the accused was to conduct divine worship himself, in a proper, decent, and orderly manner, it can well be said that he has the same right to protection against disturbance on the part of others (who would perhaps prefer to hear a different pastor) as they would be entitled to receive against his preaching. It is beyond the power of the courts to settle by criminal prosecutions the respective rights of contesting claimants to a beneñee, even in a negro church. Judgment reversed.


text:
    746.
    COLEMAN v. THE STATE.
    1. That a defendant in a criminal case is confined in jail under sentence for a felony, of which lie has been convicted in a superior court, does not of itself present any bar to his being tried upon an indictment for misdemeanor, pending against him in a city court. Even if in any case there should be a conflict of jurisdiction between the courts, the defendant wlio is before the court for trial can not take advantage of the fact that his presence has been illegally or improperly obtained.
    2. The entry upon the minutes of a city court of an order of the judge of the superior court, directing the transfer of certain indictments for .misdemeanor to such city court, where such transfer is authorized, by law, is sufficient to give the city court jurisdiction of the several eases transferred by the order.
    3. Assignments of error based upon the refusal of a trial court to charge the jury in accordance with requests orally presented by counsel can not be considered by this court.

      4. The evidence authorized the verdict.
    Indictment for disturbing worship, from city court of Americus — Judge Crisp. August 12, 1907.
    Argued October 9, 1907.
    Decided September 30, 1908.

      Blalock & Cobb, for plaintiff in error.

      F. A. Hooper, solicitor-general, Zach. Childers, solicitor, contra.
   Russell, J.

Mose Coleman excepts to the judgment overruling his motion for new trial, and also to the judgment finding against his special plea to the jurisdiction. The special plea, which was by agreement heard by the court, is as follows: “And now comes the defendant and enters this, his special plea in said case, and says: 1st: That the city court of Americus, Georgia, has no jurisdiction over the defendant in this case, for the following reasons: that he is now under sentence and serving a sentence from the superior court of said county, and sent for assault with intent to murder, having been found guilty in said court at the May term and sentenced to twelve months in the chain-gang, or a fine of $250, and that he is now in custody under said sentence, and this court has no jurisdiction of the person of the defendant while he is serving this sentence imposed by the superior court of Sumter county. 2nd: Defendant further says that this court is out of jurisdiction in this ease for the reason that said case is now pending in the superior eoiirt of said county, there being an indictment found by the grand jury at the May term of Sumter superior court, .and that there is no order on the minutes of the superior court, transferring this case to the city court; neither is there any order entered on the minutes of the city court of Americus, Georgia, showing that said case has been duly transferred and entered upon -the minutes. The defendant says before this court can get jurisdiction of the case in the superior court of said county by the grand jury, must be by duly signed order of the superior, court entered upon the minutes of said court, and then entered upon the minutes of this court; and it appearing that neither of this has been done.”

The first ground of the special plea is sufficiently dealt with in the headnote. This ground was really nothing more than a motion to continue the case. Any person haying an interest in maintaining the jurisdiction of the superior court, or the State (having an interest in the service of the defendant as a convict from the superior court), could perhaps be heard upon this question, but' it is immaterial so far as the defendant is concerned, unless it appear that, by reason of his prior sentence and consequent confinement, he has been rendered less prepared for trial than he otherwise would have been. This lack of opportunity for preparation might be good ground for continuance, but is no basis for a special plea.

It appears that the evidence did not sustain the second ground of the defendant’s plea to the jurisdiction as stated; because it .appears that the order of the judge of the superior court transferring the presentment in question was. entered upon the minutes both of the superior and the city courts. The court, therefore, did not err in finding against this ground of the special plea. It is insisted in the brief of counsel for the plaintiff in error that the entry should have been made upon the minutes of the city court from a certified transcript of the order which had been entered upon the minutes of the superior court.- This, pterhaps, would have been the more regular mode of procedure if it were indispensable that the order of the judge of the superior court should be entered upon the minutes of the city court.

We have already in the case of Woodall v. State, ante, 783 (62 S. E. 485), expressed our views upon the subject of enforcing-the respective rights of contesting claimants to the occupancy of a. church by prosecution for disturbing divine worship. We can not say, however, in the present case, that the jury were not authorized to find that this defendant violated the law. He would have had the right, as one of a committee appointed by his church conference, to notify Bedding not to preach on the Sunday in question. But if (as testified by several witnesses whose testimony the jury believed) he proceeded further, by snatching the would-be preacher from the pulpit and telling him that if he attempted to preach he would give him the worst whipping a man ever got, this conduct would not only disturb the congregation, but bis action became individual and not representative, because he exceeded his instructions. Judgment affirmed.


author: Russsell, J.

text:
    962.
    CRAWFORD v. THE STATE.
    1. That the affidavit upon -which an accusation is based is defective, in not properly denominating or describing the offense charged, will not afford ground for quashing the accusation, if the identity of the transaction set forth in the affidavit with that charged to be a crime in the accusation is apparent.
    2. That instead of being charged with the offense of being a cheat and swindler one is charged by accusation with “cheating and swindling” will not of itself authorize the accusation to be quashed. That the offense charged is improperly denominated in an indictment or other accusation does not necessarily vitiate, such accusation. The test by which the sufficiency of the accusation, as well as the particular offense charged against the defendant, is to be determined is not the denomination which the pleader applies to the offense, but the nature of the criminal act alleged, and the fulness with which the act is set forth.
    3. An allegation that certain representations were fraudulent is a sufficient statement that such representations were made with' intent to defraud.
    3. (a) An intent to defraud by false representations is sufficiently alleged when such representations are charged as fraudulently made.
    3. (5) One may be defrauded by representations the truth or falsity of which has not been investigated.
    4. The solicitor of a city court has the right to amend an accusation, prior to arraignment; and, in the absence of proof to the contrary, interlineations appearing in an accusation will be presumed to have been made at the proper time and by the proper authority.
    5. Where a presentment is returned within the time required by the statute of limitations, and a nolle prosequi is thereafter entered thereon for any informality, the prosecution may be continued by an accusation in the city court having jurisdiction of the offense, provided such accusation be preferred within six months from the date of the order of nolle prosequi.
    6. While a new trial should be granted whenever it appears that the finding of a jury has been influenced by improper remarks of a judge, still, as some liberality of expression must be allowed the judge in ruling upon testimony, it should clearly be made to appear both that the remark was improper and that the movant’s case .was prejudiced thereby.
    7. The contents of a writing which has been lost or destroyed or otherwise has become inaccessible may be proved by a properly authenticated copy of that writing, appearing in the brief of evidence which was approved by the trial judge upon a former trial between the same parties.
    8. Assignments of error which do not direet the attention of the court to the specific error of which complaint is made will not be considered.

      SÍ. Where a paper containing the finding of a jury between the same parties is admitted by the court without concealment of the former verdict, and the jury are properly cautioned by the court, it is not to-be presumed that the jury were influenced in their finding by knowledge of the former verdict.
    10. A new trial will not be granted upon minor inaccuracies of a court’s-charge, appearing in disjointed fragments, where, by an examination of' the charge as a whole, the apparent errors are dissipated.
    11. Where a defendant is charged with the offense of being a common cheat and swindler by means of specific false representations, which he is alleged to have made, the fact that the party alleged to have been defrauded 'did not exercise reasonable diligence in preventing the fraud affords no defense to the accused.
    12. Where one, either by false representations or by fraudulent concealment of material facts, deceives prospective purchasers of property and induces them to purchase, to their damage, what they otherwise would not have purchased, the belief of the seller that he is giving full value to the purchaser is immaterial, unless the evidence shows that either the seller himself or some one else has acquainted the purchaser with all of the material facts as they really exist in relation to the transaction as to which he has been deceived. One can not be deceived by false representations which he knows to be false; but on the other hand, it-will not be presumed, in favor of one who has made false representations, that the party to whom these representations were made knew them to be untrue.
    13. The requests contained in the 18th and 19th grounds- of the amended motion are fully covered in the charge of the court to the jury, and hence it was not error to refuse these requests.
    14. The evidence authorized the verdict.
    Accusation o£ misdemeanor, from city court of Bainbridge — - Judge Harrell. January 6, 1908.
    Submitted February 25.

    Decided September 30, 1908.

      T. S. Hawes, for plaintiff in error.
   Russsell, J.

J. R. Crawford was tried in tbe city court of Bainbridge, upon an accusation charging Mm, jointly with one J. R. D. Raster, with the offense of cheating and swindling. For a former report of this case, see 117 Ga. 247. The jury returned a verdict of guilty, and the defendant’s motion for new trial was overruled. The accusation was based upon an affidavit made by one Thomas Chason on April 18, 1907, alleging the offense to have been committed on September 22, 1900. The accusation was as follows: “State of Georgia, Decatur County. In the city court of Bainbridge, March term, 1907, held in April of said year. The following accusation is founded upon the foregoing affidavit-of Thomas Chason, who now, in the name and behalf of the citizens of Georgia, charges and accuses J. E. D. Laster and J. E. Crawford with the offense of cheating and swindling, for that the said J. E. D. Laster and J. E. Crawford did, on the 22 day of September in the year 1900, in the county of Decatur, then and there unlawfully and with force and arms did falsely and fraudulently represent to Chason & Eeynolds, a firm composed of Thomas Chason and J. F. Eeynolds, that said Crawford and Laster were the owners of all the timber on a place known as the Harvey place, in said county and State, .and bounded on the east by the lands of Adam Eambo and Joe Collier, and on the north by the lands of A. Fort and J. E. Crawford; on the west by the river road, and on the south, commencing on the east boundary, by lands of Ike McGill, Cassie Williams, and Caroline Hopkins, and thence the balance of the said south line by a road leading from what was then the mill of Chason & Eeynolds to the Harvey landing 'on the Chattahoochee river, and did thus induce said Chason & Eeynolds to purchase all of said timber on said land that measured twelve inches at the stump and eighteen inches from the ground, for the sum of five hundred dollars, said leased timber estimated to be about three hundred and fifty acres, when in truth and in fact about two hundred acres of said land and said timber was not the property of said Laster and Crawford, which fact was well known to the said Laster and Crawford at the time they made said false and fraudulent representations, and was not known by said Chason & Eeynolds, and, by said deceitful means and artful practices, did cheat and defraud the said Chason & Eeynolds of the sum of $400.00, the value of the timber that did not belong to the said Crawford and Laster, and contrary to t the laws of said State, the good order, peace, and dignity thereof. And deponent aforesaid, in the name and behalf of the citizens of Georgia, further charges and accuses the said J. E. D. Laster and J. E. Crawford with having committed the offense of cheating and swindling, for that, on the day aforesaid and in the County and State aforesaid, the said defendants did execute and deliver to, the said Chason & Eeynolds a lease to all the timber on the place known as the Harvey place, between the boundaries hereafter described: bounded on the east by the lands of Adam Eambo and Joe Collier, on the north by the lands of A. Fort and J. E. Crawford, on the west by tbe river road, on the south commencing on the east boundary by the lands of Ike McGill, Cassie Williams, and Caroline Hopkins, thence the balance of the said south line by road running ‘ from mill of Chason & Eeynolds. to the Harvey landing on the Chattahoochee river; the. timber on said lands to be cut down to twelve inches at the stump and eighteen inches from the ground; the lease to remain operative three years from September 22, 1900; and when the description in said contract of land was being written by the prosecutor, the said defendants, Laster and Crawford, allowed him (the prosecutor) to insert, ‘bounded on the west b3r lands of Adam Bambo and Joe Collier/ knowing at the time that this was not the proper boundary on the east, and, by remaining silent and not giving the proper information, did use deceitful means and artful jDractices, by reason of which said lease contained 350 acres of land, whereas the proper boundary was ‘bounded on the east by lands of Adam Sambo’ alone, which would have made 150 acres as the proper acreage of timber, instead of 350, whereby the said Chason & Be3raolds were deceived and defrauded and suffered loss in the sum of $400.00, the same being the value of the timber that did not belong to the said Laster and Crawford, they the said Chason & Eeynolds believing, at the time, that said boundary on the east was in fact by the lands of J. Collier; and they, the said Crawford and Laster, knew that the said Chason & Eeynolds so believed, and thus, by using deceitful means and artful practises, did fraudulently cheat and swindle the said Chason & Eeynolds, contrary to the laws of said State, the good order, peace, and dignity thereof. Deponent further alleges, that a bill of indictment was regularly found by the grand jurors of said county against said defendants at the November term, 1901, of the superior court of said county, and that the case thus made has been pending in the superior court, the Supreme Court of Georgia, and the city court of Bainbridge, up to this date, when said bill of indictment was, for informality, nolle prossed in open court by the State, and this accusation was immediately preferred in lieu thereof. — M. E. O’Neal, Solicitor City Court of Bainbridge. — Thomas Chason, Prosecutor.”

Hpon arraignment the defendant demurred to the accusation, upon the following grounds: (1) That the affidavit on which the accusation is founded charges no crime against these defendants. (3) That the accusation filed in said case charges no crime against these defendants; and, for said reason, said affidavit and said accusation should be quashed. (3) That whatever crime, if any, was committed was barred by the statute of limitations, on the face of the accusation. — For special demurrer the defendants say: (1) That the affidavit is not sufficient upon which to base an accusation ; for the reason that it charges defendants with no crime; nor could an accusation charging any crime be based on said affidavit; and, under the law of the city court of Bainbridge, an accusation must be founded on an affidavit. (3) That there is no such offense or crime in the State of Georgia as “cheating and swindling;” and for this reason the affidavit charges no crime. (3) That the accusation based on said affidavit accuses the defendants of committing no crime; for the reason that they are only charged with the offense of cheating and swindling, which is not a crime under the laws of Georgia. (4) Because said indictment fails to allege that the representations, if any were made, were made for the purpose of, or with the intention of, defrauding Chason & Reynolds. (5) Because said indictment, in the'first count thereof, fails to allege that the two hundred acres shortage could not, by reasonable diligence, have been discovered and known to the said Chasón & Reynolds. (6) Because said indictment is indefinite and uncertain, in that it alleges that “said leased timber estimated to be about three hundred and fifty acres,” when in truth and in fact about two hundred acres of said land and' timber was not the property of said Laster and Crawford, and fails to state who estimated the amount to be about three hundred and fifty acres, and who estimated the shortage to be about two hundred acres; and for the reason that “about three hundred and fifty acres” fails to allege any definite amount of land; and for the further reason that “about two hundred acres short” fails to allege or show the amount of the shortage, because said' accusation shows on its face that Chason & Reynolds only leased the timber twelve inches at the stump eighteen inches from the ground, and shows that they did not lease the land, and said indictment fails to show that any timber twelve inches at the stump eighteen inches from the ground was situated on the land which the accusation alleges to be short; and said - accusation fails to allege how much timber of the character described was situated on the land that was short. (7) Because said indictment alleges-on its face that defendants offered to sell Chason & Reynolds the timber on the Harvey place, and nowhere alleges that the timber received by Chason & Reynolds was not all the timber on the Harvey place, and fails to allege that Chason & Reynolds were not thoroughly familiar with the Harvey place, and that said Chason & Reynolds did not know all the lands and timber situated on the Harvey place, or that they could not have discovered, by ordinary diligence, all of the lands and timber situated on the said Harvey place. (8) Because said accusation shows on its face that it has been interlined, erased, and changed since said accusation was filed. (9) Because said accusation shows on its face that the crime, if any is charged against these defendants, is barred by the statute of limitations; for the reason that the crime is alleged to have been committed on September 22, 1900, and the accusation and the affidavit on which it is based were made and filed on the 18th day of April, 1907, and the accusation does not show that any indictment or accusation has been heretofore filed, charging these defendants with the particular offense or crime with, which they are now charged, and fails to show that any valid charge or crime relating to this transaction was ever made against-these defendants. (10) Because said accusation shows on its face-that the description of the property or timber sold to Chason & Reynolds by these defendants was reduced to writing, and because said accusation fails to set out the description contained in said writing. (11) Because said accusation fails to state that the defendants, by remaining silent at the time that it is alleged that-the prosecutor inserted the words “bounded on the east by the-lands of Adam Rambo and J. Collier,” in the said lease, acted fraudulently and intended to deceive the prosecutor or Chason & Reynolds, and that the defendants purposely resorted to such conduct as a means of obtaining money or other thing of value from the persons alleged to have been deceived. (12) Because said, accusation fails to allege that Chason & Reynolds relied on either the 'statements of the defendants or the silence of the defendants and were thereby deceived. (13) Because the accusation fails to-allege what deceitful means and artful practices were used by the.' defendants.

The points raised by the demurrer may be summarized into five heads. (1) The insufficiency of the affidavit. (2) The failure to properly denominate the crime. (3) That the offense is not sufficiently set forth to put the defendants properly upon their defense. (4) That the accusation has been interlined and changed since it was filed. (5) That it appears, from the accusation, that the offense charged against the defendant was barred by the statute of limitations. We shall consider these objections raised to the form of the accusation seriatim.

The fact that the affidavit upon which the accusation was. based may or may not have been defective in describing the offense will not afford ground for quashing the accusation, if the identity of the transaction set forth in the affidavit with that charged by the accusation to be a Crime is apparent. It has frequently been held that an affidavit charging merely that the defendant committed the offense of misdemeanor is ample basis for an accusation in which a criminal act referred to by the affidavit, is distinctly and properly set forth and every material particular sufficiently amplified to enable the accused to prepare for his defense. The defendant in a criminal case proceeding by accusation against him can derive no benefit, nor does he suffer any injury, from the fact that the affidavit may be but a mere skeleton which brings him into court.

Another point raised by the demurrer, in more than one of its subdivisions, is that the offense of which the defendant was accused is denominated in the accusation as “cheating and swindling.” It is true that the statute declares that one guilty of certain acts is a common cheat and swindler, and does not refer td the offense as being cheating and swindling. That the offense is. improperly denominated in an indictment or other accusation will not necessarily vitiate the accusation. The test by which the: sufficiency of the accusation, as well as the particular offense which, is charged against a defendant, is to be determined is not the: denomination applied to it by the pleader, but the nature of the. criminal act alleged, and the fulness with which the act is set forth. We would have no hesitation in holding that if the offense was not denominated at all, an indictment charging even a felony would be sufficient, if the accused were properly charged with the commission of such acts as rendered him guilty of a felony, and. indicated beyond question the specific felony of which he would be guilty under the law if the' allegations were proved.

The third complaint of the demurrer is that the accusation fails, in several particulars, to allege enough to constitute the crime of being a common cheat and swindler, so as to call upon the defendant to defend. In the fourth ground of the demurrer it is stated that the indictment fails to allege that the representations, if any were made, were made with the intent of defrauding the prosecutors. The statement of the accusation, in each of its counts, that the representations were fraudulent, is sufficient answer to this ground of the demurrer. The usual meaning of the word “fraudulent,” as applied to representations, is a representation made with the intent to defraud.

The 5th ground of the demurrer complains that the indictment is insufficient because it fails to allege that the shortage of BOO acres of timber land could not have been discovered by reasonable diligence on the part of the prosecutor. Such an allegation may be proper in some cases of cheating and swindling, but it is not indispensable that it should be alleged in every accusation of that odíense. In some cases where one purports to disclose all of the facts, or is under duty to disclose them, there may be no duty on the part of another dealing with him to make any inquiry or to attempt to discover whether the representations being made to liim are true or untrue. To hold, for instance, that one who may have defrauded another by exhibition of written muniments of title (ostensibly genuine) can not be prosecuted criminally unless he who is sought to be defrauded has used all diligence to detect the fraud, and has perhaps in fact prevented it, would be to our minds an unnatural ruling. A citizen has the right to rely, so far as the criminal law is concerned, upon representations made to him by one with whom he deals'which are apparently reasonable and truthful, and he who falsely, fraudulently, and intentionally abuses this confidence, so absolutely necessary to the conduct of commercial transactions, must be made to know that he doe's so at his peril.

A sufficient reply to the objections' raised by the 6th and 7th grounds of the demurrer is that it is not required that the accusation should’ set forth all of the evidence which it may be necessary to introduce to support its statements. The .accusation in the present instance is amply specific.

If the fact that an accusation has been interlined or changed subsequently to the filing can properly afford ground for special demurrer, the court did not in the present instance err in overruling the 8th special ground of the demurrer. Not only has the solicitor of a city court the right to amend an accusation at any time prior to the arraignment (Goldsmith v. State, 2 Ga. App. 283, 58 S. E. 486), but, in the absence of proof, any interlineations appearing in an accusation, or even in an indictment, would be presumed to have been made prior to its return into court.

There is no-merit in the demurrer alleging that the accusation was barred by the statute of limitations. It is distinctly alleged in the accusation, as well as in the affidavit, that an indictment which had been returned at the November term, 1901, for the same offense had, upon the day of the filing of the accusation, been “nolle prossed by the State,” and that the accusation was for the same offense and criminal act as that charged in the indictment as to which a nolle prosequi had been entered. The original indictment was found within two years from the time ,the offense was alleged to have been committed, and was transferred to the city court of Bainbridge. This transfer gave the city court of Bainbridge full jurisdiction to dispose of the case in its entirety, both as to matters of form and of substance. The case was not altered by reason of the fact that it originated by presentment of the grand jury, instead of by accusation in the city court. Both presentments and accusations are mere pleadings. The effect of the order of the judge - of the superior court in transferring the case was to give to the city court of. Bainbridge jurisdiction to dispose of not only such pleadings as might be in existence at the time of the transfer, but any other pleadings as well, which might be necessary in the proper conclusion of the judicial investigation remitted to it. lYe are clear in the opinion that §30 of the Penal Code, which provides that “if the indictment is found within the time limited, and for any informality shall be quashed or nol. pros’d, a new indictment may be found and prosecuted within six months from the time the first is quashed or nol. pros’d,” applies interchangeably to indictments, presentments, or accusations. ■

After conviction the defendant filed a motion for new trial, upon the general grounds, which was thereafter amended by the ■addition of twenty-two other assignments of error. In the 4th .ground of the amended motion it was insisted that the court erred in requiring the defendant’s counsel, in the presence of the jury, to produce a postal card alleged to have been written by the defendant, which the defendant had introduced in evidence on a former trial of the case. From the colloquy between the court and the defendant’s counsel, which appears in the record, it seems that the only statement by the court upon this point was, "I insist, if-you have these papers, that you will have to turn them over.” Mr. Hawes, the defendant’s counsel, declined to answer whether he had ever seen the postal card and lease in question, upon the ground that he was not compellable to testify; and it does not appear that the court thereafter made any further ruling or any remark of anjr kind in regard to this matter. We would be far from sustaining a verdict in a case where it appeared that the finding of the jury was influenced by an improper remark which could clearly be held to have been prejudicial to a party in the case; but we have several times held that some liberality of expression must be allqwed the trial judge in ruling upon testimony; and at the time the judge uttered the remark of which complaint is made, the State had the right to prove, and in fact was required to prove (in"advance of establishing the contents of the postal card in question aliunde), that the original was either lost or destroyed, or that it was otherwise beyond the power of the State to produce it. Mr. Hawes not having, at the time of the court’s statement, asserted the claim of privilege, it was not improper for the court to require the production of material written testimony as to which no exemption had been claimed. We fail to see that the remark of the court could have been prejudicial to the defendant; and, so far as appears from the record, the court did not finally peremptorily order the production of the postal card, but, on the contrary, appears to have held with Mr. Hawes, that his possession of the original postal card, if indeed he had it, was privileged, for later in the trial the contents of the postal card were proved by a copy contained in the record of the former trial of the case.

The admission of the above-stated copy of the postal card forms the basis for the 5th ground of the amended motion; and, in view of what we have already said, we find no merit in the •objectidn contained in this ground of the motion. The original postal card written by the defendant, as appears from the record, was introduced by him on a former trial of the case, and returned by the jury with the other papers to the court. It is immaterial whether, as appears from some of the evidence, the postal card then passed into the possession of the former counsel for the defendant or not. If it did, it was inaccessible to the State, on .account of the privilege which attached to it. It was as inaccessible as if it had been in the possession of the defendant himself. If the original postal card was lost, it was likewise inaccessible. If material to the State’s case as an admission on the part of the defendant, the State had the right to prove its contents; and we know no better way of doing this than by the introduction of the copy contained in the brief of the evidence at the former .trial, presented by the defendant and approved by the presiding judge. It is true that the substantial contents might have been shown by any witness who remembered the contents of the writing in the original which was inaccessible, but the exact contents would be much more likely to be ascertained from the record contained in the brief of evidence which the trial judge had officially verified. It was not an introduction of a copy in lieu of the original, but rather the authentication of the contents of the lost writing.

Complaint is made in the 6th ground of the amended motion that the court, in passing upon the admissibility of the record of the former trial, or some portion of it, remarked, -“It appears to be in Judge Bower’s handwriting. I will not allow you to introduce this record in evidence. You can take it and use it to assist you.” The specific assignment of error is, that this statement of the court was error, for the reason that the defendant had the right to introduce the record for the purpose of contradicting the testimony of the witness who was on the stand, as well as to show that the original record had been changed and the word “defendant” inserted in lieu of the word “State;” and that the •court further erred in making the statement that the interlineation appeared to have been made in Judge Bower’s handwriting. This assignment of error. appears to us to he without merit, for several reasons. In the first place, it is not stated in what manner .the statement of the judge, that the' interlineation was in Judge Bower’s handwriting, could have hurt the defendant. Doubtless the judge was familiar with Judge Bower’s handwriting, and naturally used this statement as an assertion of the presumption that the record had not been improperly interlined. But whether the remark was spontaneous or was well considered, we are unable to say that the judge erred, because the assignment does not: direct our attention to the specific error complained of. As to the contention that the defendant had the right to introduce the; record approved by the court in a former trial, it is plain that-the court did not err in rejecting it at the time and in the manner in which it was done. If the defendant had offered the record at a proper time, the court might have erred in rejecting it. But it appears from the assignment of error itself that the record, if offered at all and rejected, as complained of by the defendant, was offered while Dr. Chason was on the stand, and without any request that he be temporarily withdrawn to permit the introduction of other testimony. Two witnesses can not be put upon the stand at the same time; nor is the introduction of written testimony, without the special permission of the court, permissible while a witness is upon the stand and undergoing cross-examination.

While we think it would perhaps have been better for the court to have concealed the verdict of the jury which had formerly-convicted the defendant, and which appeared upon the indictment which was introduced in.evidence, still, to do this or to decline was a matter of discretion on the part of the trial judge; and we can not say that his discretion was abused, or even that the defendant’s case was prejudiced by his refusal to conceal the prior verdict of guilty. The court cautioned the jury that tliey were to be guided only by the evidence; and we can not assume that the jury would be any more influenced by ascertaining from a. writing that the defendant on trial had been theretofore convicted of an offense than if thej had had knowledge of that fact from general rumor, or that a fair jury Avould be influenced by either.

Numerous exceptions are taken to the instructions of' the court embodied in the 8th, 9th, 10th, 11th, 12th, 13th and. 14th grounds of the amended motion. After a careful review of the charge as a whole, we are ’more than ever impressed with the statement of Judge Bleckley in Brown v. Matthews, 79 Ga. 1 (4 S. E. 13), that “A charge, tom to pieces and scattered in disjointed fragments, may seem objectionable, although when put together and considered as a whole it may be perfectly sound. The full charge being in the record, what it lacks "when divided is supplied when the parts are all united. United they stand, divided they fall.” A similar charge upon the subject of reasonable doubt to that complained of here was approved by this court in Parker v. State, 3 Ga. App. 336 (59 S. E. 823), and each of the other excerpts presented principles of law abstractly correct, and which, when considered and qualified by other instructions given in connection with them, fairly presented the law of the case to the jury. In so far as the omission of the court to call the attention of the jury to lack of reasonable diligence, by the exercise of which the persons alleged to have been defended might have prevented a fraud, and failing in which the defendant could hot be convicted, is concerned, as we have already intimated, a charge upon this subject was not required and would not have been correct. Frequently, from the less diligence used by the defrauded party, and even in case of his total imbecility and consequent inability to use any diligence, arises the greatest necessity that the State should protect such a citizen against' those deceitful means and artful practices of which he may become the easiest prey.

The 15th, 16th and 17th grounds of the amended motion allege error upon the court’s refusal to give in charge certain instructions which were properly requested in writing. The requests set forth in the 15th and 16th grounds were made in the endeavor to have the court instruct the jury, among other things, that if the defendant believed that the amount reduced from the contract price was to cover the difference between the amount of timber represented and the true amount owned by the defendants, then the defendant could not be convicted. There was evidence to the effect that in the original negotiations the defendants endeavored to sell the property in question for $750, but that, in the consummation of the trade, the purchasers (the prosecutors) refusing to give more than $500, the latter sum was finally ac•eepted. The principle embodied in the request, even if it is justified by the statement of the defendant as to his belief, should not have been given in charge. If the defendant, either by false representation or fraudulent. concealment of material facts in the transaction, deceived the purchasers of the property, and induced them to purchase what they otherwise would not have purchased, to their injury and damage, it would be wholly immaterial that the seller, the defendant, believed they were given full value on account of the reduction of the price, or believed that the reduction of the price was made to cover the amount of value which he had represented was being conveyed, unless he had undeceived the purchasers ás to the true amount of their purchase, or unless the evidence showed that some one else had undeceived them prior to the consummation of the contract and the payment of the money. It would never do for the court to charge baldly that if the defendant believed that the contract had been changed he must bo acquitted, no matter what were the true facts of the case. It is, ■of course, true that in every case where one is accused of being a cheat and swindler, the jury should be instructed that if they believe that the intent to defraud was lacking, the defendant should be acquitted, and this was clearly stated to the jury by the court in the charge. But as the judge was not required to give the requests unless they were in all respects legal and proper, the court did not err in refusing those contained in the 15th and 16th grounds. The court's charge upon this point was as favorable to the defendant as he had any right to expect, when the jury was instructed, “I charge you further, gentlemen, ‘that if you are satisfied, from the testimony in this case, that •either Dr. Chason or Mr. Beynolds knew, at the time they made this purchase, that the title to that property was not in Crawford and Las.ter, you would not be authorized to convict the defendants."

The 18th and 19th grounds of the amended motion except to the refusal of the court to charge as follows: (18) “I charge jrou, gentlemen, 'that the State is required to prove to }rour satisfaction, beyond a reasonable doubt, that the alleged representations were made by the defendant, and that they were known by the defendant to be false, that they were made by the defendant for the purpose of deceiving Chason & Beynolds, and that as a re-•suit thereof Chason & Reynolds were defrauded. I charge you, gentlemen, that a mistake by the defendant as to the amount of land owned, or as to the boundaries of the land, or as to the number of • acres, would not make him guilty of the crime charged, and unless you are satisfied, from the evidence, that the representations, even if false, were not a mistake, or if you have a reasonable doubt as to whether the representations were the result of a mistake, it would be your duty to acquit the defendant.” (19) “I charge you, gentlemen, that before you would be authorized to convict the defendant, you must be satisfied beyond a reasonable doubt, from the evidence, that the representations alleged in the accusation were false. If you are satisfied, beyond a reasonable doubt, that the representations were false, then you must go further and be satisfied from the evidence, beyond a reasonable doubt, that the defendant knew that each of the representations were false; and further still, you must be satisfied beyond a reasonable -doubt, from the evidence, not only that the representations were false, and were known by the accused to be false, but you must be further satisfied beyond a reasonable doubt, from the evidence, that the accused intended to deceive the parties named in the accusation, and further, you must be satisfied beyond a reasonable doubt, from the evidence, that the accused purposely resorted to the particular means of obtaining the money or other thing of value from the person alleged to have been deceived; and you must be further satisfied beyond a reasonable doubt, from the •evidence, that the parties alleged in the accusation were actually deceived and defrauded as a result of the charges alleged in the accusation; that is, the acts alleged must have been the sole and only cause which caused the parties, alleged to have been deceived, to have been so deceived. If you. have a reasonable doubt as to any of these propositions, gentlemen, it would be your duty to acquit the defendant.”

In so far as the first portion of the request contained in the 18th ground of the motion is concerned, the principle had already been given to the jury in the instruction which we have quoted above; and the law favorable to the defendant’s defense, that his mistake was an honest one, was equally well presented in the general charge. The court, in the earlier portion of the charge, instructed the jury as follows: “Before you would be authorized, gentlemen, to convict either of the defendants, you would have to be satisfied, beyond a reasonable doubt,'that at the time this trade was made, the defendants, Crawford and Laster, knowingly made false representations as to the number of acres conveyed in this lease.” And later on, in the charge, the jury were instructed upon this subject as follows: “The jury will look to all these facts and circumstances and determine what was in the minds of the defendants at the time this lease, this trade, was made. The jury, before they could convict in this case, would have to be satisfied beyond a reasonable doubt that the defendants, Crawford and Laster, knew, at the time they made this trade, that they were selling more timber than they owned. If the defendants really and in truth and in good faith thought that they owned this timber, and they sold it under those circumstances, then, if you believe that, I charge you, you would find the defendants not guilty.”

After -a painstaking investigation of the very voluminous record in this case, and after an investigation of the assignments of error, which are so numerous as to satisfy us that every plausible reason for a new trial which the learning and ingenuity of the very able counsel for the plaintiff in error could suggest has been’ skilfully presented, we are unable to find any error which would warrant a reversal of the judgment refusing a new trial. The evidence in behalf of the State was sufficient to authorize the verdict. The finding of the jury has been approved by the trial judge who presided. Two juries have found the same verdict. As a matter of law, there is every reason why the judgment should be Affirmed.


text:
    963.
    LASTER v. THE STATE.
    The special exceptions are the same as those presented in Crawford v. State, ante, 789, and are without merit; hut the verdict of guilty was. unauthorized, and a new trial should have been granted, for the reason that the evidence upon the subject of the defendant’s fraudulent intent, which was entirely circumstantial, was as consistent with the defendant’s innocence as with guilt, and did not exclude an hypothesis that the defendant was innocent of a fraudulent intent, even more reasonable than that he acted with such fraudulent intent.

      Accusation of misdemeanor, from city court of Bainbridge— Judge Harrell. January 6, 1908.
    Submitted February 25,
    Decided September 30, 1908.

      T. S. Hawes, for plaintiff in error.
   Russell, J.

In tlie court below the defendant in this case was charged and tried jointly with one Crawford, and exactly the same questions are raised by both bills of exceptions. In the opinion in the Crawford case, ante, 789 (62 S. E. 501), we have already fully considered the special exceptions filed pendente lite and the assignments of error contained in the nineteen grounds of the amended motion, and have held, as we again hold, that none of these exceptions are well taken. Having disposed of these, the only remaining question in this case, as was true in the Crawford case, is whether the evidence is sufficient to authorize the verdict of guilty. We are' clear that the evidence' adduced upon joint trial authorized the jury to find the defendant Crawford guilty, and, consequently, this court was without jurisdiction to set aside the finding as being contrary to law for lack of evidence to support it. In the case of the present plaintiff in error, however, we are of the opinion that the judgment refusing a new trial should be reversed, because the evidence against the defendant Laster is insufficient to authorize a verdict of guilty against him.

We waive all consideration of the fact that it is plain that Chason & Reynolds placed but little reliance on the representations of this particular defendant; that they would not consummate the lease until his codefendant Crawford had been consulted; that when the lease was being made, Crawford assisted in giving the description Qf the land, by means of which Chason & Reynolds were defrauded, and the fact that they knew that Laster could not sell the timber without Crawford’s' consent. In a case of cheating and swindling it must appear that he who was defrauded was so defrauded because of his reliance upon the statements made to him; and the evidence for the State upon this branch of the case is exceedingly weak, so far as this defendant is concerned. We plant our judgment, however, upon the fact that the State failed to show, beyond a reasonable doubt, that the defendant Laster knowingly made any false representations, or, in other words, that he made the statements he did with fraudulent intent. The evidence of fraudulent intent is necessarily circumstantial. This being true, the testimony must establish beyond any other reasonable hypothesis that the defendant knew that he did not own the timber he was proceeding to sell, at the time that he was pointing out the boundaries of the land and when he signed the lease. So. far as the evidence in this case is concerned, the testimony is most susceptible to the inference that he honestly believed and had good reason to believe that he had a perfect right 'to sell the timber, with Crawford’s consent, and to sign the lease by which Chason & Eeynolds were defrauded. It is undisputed, in the testimony, that Laster held the land under bond for title from Crawford, and that Chason & Eeynolds knew this; and there is no evidence that the description of the land set forth in the-bond for title did not include all of the land which Chason & Eeynolds claimed to have purchased. There is no evidence that Laster, in pointing out the boundary of the land, exceeded what had been bargained to him by Crawford; and as to the timber itself, Chason & Eeynolds were informed that he could not sell this except upon Crawford’s assent. Another significant difference which tends to show that the defendant Laster was perhaps honestly mistaken as to the extent of his interest at the time-that he dealt with Chason & Eeynolds is the evidence'by the witnesses for the State, that after the shortage was discovered, the defendant Laster expressed his willingness to accede to the demand of the purchasers to rescind and restore the purchase-price, while the defendant Crawford, to whom the money had been paid on a debt due him by Laster (for which he still held Laster’s note), refused to rescind, and stood on the proposition that the purchasers ought themselves to have discovered the shortage before they paid their money. While this circumstance is not conclusive, it is strongly illustrative of intent, and tends to strengthen an hypothesis as to this defendant which is inconsistent with guilt. It is plainly apparent, from. various circumstances detailed by witnesses for the State, that the evidence fails to exclude any other reasonable hypothesis save the guilt of the defendant; and for this reason the conviction of Laster was unauthorized.

Judgment reversed.


author: Russell, J.,

text:
    843.
    SMITH v. THE STATE.
    The instruction of the trial judge upon the subject of alibi is approved.
    Indictment for arson, from Monroe superior court — Judge Beagan. October 15, 1907.
    Argued December 10,
    Decided December 20, 1907.

      B. H. Manry, Berner, Smith & Hastings, for plaintiff in error.

      O. H. B. Bloodworth, solicitor-general, O. H. B. Bloodworth Jr., contra.
    Tbe trial judge instructed tbe jury as follows: -“The defendant has set up an alibi as a defense in this case. An alibi involves the impossibility of the defendant’s presence at the scene of the offense at the time of its commission; and the range of the evidence, in respect to time and place, must be such as reasonably to exclude the possibility of his presence. In order to constitute a complete alibi, it should appear that it was reasonably impossible that the defendant could have been at the place where the crime was committed, if one was committed. If he could not have been at the place where the crime was committed; that would be a complete alibi under the law, and would constitute a complete defense. Where an alibi is offered, whether it is complete or not,, it is the duty of the jury to consider it along with all the testimony in the case; and if the evidence, taken as a whole, raises a doubt in the mind of the jury of the defendant’s guilt, you should acquit him.” Error was assigned, in that the court failed to charge that the defendant should be acquitted if he established an alibi to the reasonable satisfaction of the jury; and that an alibi, as an independent defense, should not be confused with the other issues in the case.
    (By accidental omission, the following opinion was not of file until after this ease was reported in 3 Ga. App. See the opinion of the majority of the court, on page 803 of that volume.)
   Russell, J.,

dissenting. I can not concur in the decision of the majority of the court, because I think the plaintiff in error is entitled to a new trial upon more.than one error pointed out by the exceptions. As my views, however, can not affect the judgment, I express my dissent solely because I do not wish my silence, by any possibility, to be construed as an approval of the charge of the judge of the superior court upon the subject of alibi. To my mind the charge of which complaint is made is clearly violative of the principle which was expressly recognized by this court in Ransom v. State, 2 Ga. App. 826 (59 S. E. 101), following the rulings of the Supreme Court in Landis v. State, 70 Ga. 651 (48 Am. R. 588), and Ledford v. State, 75 Ga. 856. All that was expressly ruled in Harrison v. State, 83 Ga. 135 (9 S. E. 542), was that the charge upon the second “branch” of the rule with reference to alibi was correct. It has uniformly been held in this State that there are two horns to the defense of alibi. The one is a substantive defense; the other provides a mere breakwater against the State’s case by providing room and reason for doubt. There can, therefore, be no such distinction as a complete and an incomplete alibi, which was presented by the judge to the jury. If the defendant satisfies the jury that at the time of the crime he was at such a place as rendered his participation in the offense impossible, the code declares that he has proved an alibi. There is no alibi unless he has done this! If he fails io satisfy the jury of the truth of his alibi, his defense, upon that ground, is obliterated. It does not create an incomplete alibi; there is no alibi at all, though the facts and circumstances proved in the futile attempt to prove an alibi may be considered and may cast doubt upon the case made by the State. It is not unknown to courts that defendants in criminal eases frequently enter upon their trial bearing the burden of a presumption of guilt against them, as a matter of fact, instead of going before the jury with the presumption of innocence, as a matter of law, in their favor. This statement is antagonistic to the theory of a jury trial, but is capable of demonstration as a practical truth. Its truth is recognized by high authorities as to two classes of cases at least: — the nameless crime against woman, and those cases where a great crime has been, committed, — whether it be assassination or arson, — where the suspicions of- the defendant’s guilt are foiled and baffled by the fact that there is no direqt evidence. In such a case, to cast a substantial independent defense before the jury into the vague category of reasonable doubts is obliged to be an error most prejudicial to the defendant. It reduces what the jury should consider as evidence in support of the manly and unequivocal assertion of innocence, — -“I am not guilty and can even prove my innocence,” into a pitiful plea for a Scotch verdict of “not proven,” — into this statement to the jury: “I may be guilty, but the State has not shown it beyond a reasonable ddubt.”

To tell the jury that if they are not reasonably satisfied that the defendant has established his defense of alibi, they may still consider the evidence upon the subject to see if it raises, when considered with the evidence as a whole, a reasonable doubt of the defendant’s guilt, holds out a straw at which the defendant can catch to save him from conviction; whereas, if the jury believe the alibi is established, the court places a sword, long enough and strong enough, to beat back every fact proved against him and utterly annihilate the suspicious circumstances summoned to enmesh him. Nor, in my opinion, should the court direct the jury to consider the proof of alibi “along with all the testimony in the case,” even though they are satisfied of the truth of the evidence in its support, and that the alibi has been established. It is only when the evidence is insufficient to establish the alibi, cither because the jury does not believe the witnesses as to that point or because the evidence with relation thereto, even if credible to the jury, is not necessarily incompatible with the possibility of the defendant’s presence, that the jury is perforce compelled to consider the evidence upon the subject of alibi along with all the evidence in the case; and then it is for the sole purpose of seeing whether such evidence raises a reasonable doubt, in conjunction with the other evidence in the case, as to the defendant’s guilt. The charge presented by this record is appropriate to the second horn, but inapplicable to the first horn of the doctrine of alibi, and must necessarily have been confusing to a jury of laymen. If a jury is satisfied, by proof of alibi, that the defendant did not commit the offense charged against him, by reason of the absolute veracity of the witnesses by whom the alibi is established, as well as by the fact that the scope of their testimony makes his guilt impossible, not only has the State failed to make a case, but the defendant has really proved his innocence to' the reasonable satisfaction of the jury. Cases are conceivable where the jury might find it necessary to compare and measure the testimony in support of alibi with the other testimony in the ease, and cases can also .be conceived where no such analysis and comparison would be at all necessary,, because the jury might be unanimously satisfied with the proof of alibi. So that while the jury should be told that if they are not satisfied, about the alibi they can then consider the evidence with the other evidence in the ease to see if a reasonable doubt of guilt is raised, a flat direction by the court that it is their duty to do this, even, after they are satisfied of the truth and sufficiency of the evidence in support of the alibi, is an unwarranted interference with the prerogative of the jury, naturally tending to depreciate the-weight and value of the testimony adduced in support of the> alibi. This is certainly true unless the jury is more fully and. clearly instructed than in this case that the defendant is only required to establish his' defense of alibi to their reasonable satisfaction, and that .if it is so established he is entitled, as a matter of right, to an acquittal. To merely .say en passant that an. alibi is a complete defense, immediately preceding an instruction that “where an alibi is offered, whether it is complete or not, it is the duty of the jury-to consider it along with all the testimony in the case, and if the evidence, taken as a whole, raises a doubt in the mind of the jury of the defendant’s guilt, you should acquit him,” is not, in my humble judgment, either equivalent to» presenting, or a fit substitute for a clear presentation, to the jury of the right of a defendant to have the jury first consider his. defense of alibi (with the rest of the evidence or without regard to it, as the jury may elect) for the purpose of determining,. m the 'first instance, whether the defendant has established his. defense, before reducing the importance of his defense, because of failure to establish it, by casting it into the heap of those circumstances in the pathway of the case that tend, under our law,, to raise barriers of doubt over which the jury can not pass unobstructed to the verdict of guilty. In a close and doubtful case the effect of this scant notice — if not actual depreciation — of -a. defendant’s sole defense can scarcely be estimated. It is a vitaL error, and in my opinion demands a reversal of the judgment refusing a new trial.