author:
Bloodworth, J.
      Luke, J.,

text:
    19689.
    NOBLES v. MAYOR AND ALDERMEN OF SAVANNAH.
    Decided June 11, 1929.

      Oliver & Oliver, John Z. Ryan, for plaintiff in error.

      John J. Bouhan, E. Ormonde Hunter, contra.
   Bloodworth, J.

Plaintiff in error was convicted in the recorder’s court of Savannah of disorderly conduct, and presented to the judge of the superior court a petition for the writ of certiorari. Accompanying the order of Judge Meldrim refusing the writ is an opinion by him which practically covers the entire case and shows the issues involved. That opinion is as follows: “W. J. Nobles was convicted and sentenced in the recorder’s court. ‘After the testimony in said hearing had been concluded and the defendant had made his statement, and before judgment was rendered by the court and sentence pronounced by the court,’ the charge against the defendant was changed upon the docket to ‘disorderly conduct by making improper proposals to Miss Sadie Schwarz.’ This change in the language of the charge is made the ground of certiorari, together with three other grounds which will be considered hereafter. It will be noted, by reference to the evidence, that the case was tried as one of disorderly conduct, the evidence of the prosecutrix being substantially as follows: ‘About 7.10 o’clock Friday evening, January 25, a man came to the Coffee Shop and was talking to Mr. Iler, a Yellow Cab driver, on the outside. I was busy waiting on table at the time, and Mr. Iler" came to the door and called Mrs. Fannie Hurst to tell me that there was a gentleman outside who wanted to speak to me. • When I got the message I went to the door and called the man talking with Mr. Iler and asked him what he wanted, and he replied that he wanted to see me after 9 o’clock. I asked him for what, and he said he wanted to make a date with me after I got off, and I told him that I was not in the habit of making dates with men I did not know. He then shook his finger in my face and told me if I did not make a date with him after I got off he was going to beat me.’ The only change made on the docket was by adding the words ‘disorderly conduct by,’ so that the charge read when amended, ‘disorderly conduct by making improper proposals to Miss Sadie Schwarz.’ This change was made before judgment was rendered by the court and sentence pronounced by the court. No objection was made to this amendment; no ruling was made by the recorder on this amendment. I am now asked to grant the writ of certiorari upon the error of the recorder in making this amendment. Certiorari would not lie except for the correction of an error. The court did not err in perfecting this charge on the docket, and certainly did not err when no objection was made to the allowance of the amendment. There was no surprise expressed by the prisoner, no motion to continue, and no objection made. In my opinion there was no error committed.

“The other three grounds of certiorari are: 1. Because the judgment and sentence are contrary to the evidence. There was evidence to support the judgment and sentence. 2. Because the same are contrary to law and contrary to the principles of justice and equity. The third ground was that making improper proposals to Miss Sadie Schwarz is no offense under the laws of the State. Grant that this is true, it is equally true that to call a woman out from her place of work, seek to make a date with her, and, upon her refusal to accede to his proposal, to shake his finger in her face and threaten to heat her, is disorderly conduct. The recorder had the witnesses before him, heard them and saw them, and he had the right to believe or disbelieve the respective witnesses, as he deemed proper. I am constrained to refuse to sanction the writ.” This court agrees with Judge Meldrim.

In addition to the foregoing, the Supreme Court, in Davis v. Rome, 89 Ga. 724 (15 S. E. 632), held: “The municipal ordinance under which the plaintiff in error was convicted of disorderly conduct not appearing in the" record, and none of its provisions being stated or recited, the Supreme Court will not reverse a judgment of the superior court overruling a certiorari brought to set the conviction aside. In order to compare evidence with the terms of an ordinance, the substance of the ordinance, if not its letter, must be before the court.” In Hill v. Atlanta, 125 Ga. 697 (54 S. E. 354, 5 Ann Cas. 614), the headnotes are: “1. In a trial before a municipal court the recorder or other presiding judge may take judicial notice of the ordinances of the city, defining offenses against the same. 2. Neither the Supreme Court nor any other court than the municipal court can take judicial cognizance of a municipal ordinance. 3. When a petition for certiorari, brought to review a judgment rendered in a municipal court, assigns error upon the judgment of that court, on the ground that the same is contrary to the evidence, and the existence of the ordinance alleged to have been violated is admitted in the petition, but the provisions of the ordinance are not set out either literally or in substance, it is impossible to tell whether any error has been committed, and this is a sufficient reason for a judge of a superior court to refuse to sanction the petition.” See Holcombe v. Atlanta, 18 Ga. App. 312 (89 S. E. 379).

The plaintiff in certiorari has failed to show error, and the judge properly refused to sanction the petition.

Judgment affirmed.

Broyles, G. J., concurs. Luke, J., dissents.

Luke, J.,

dissenting. The defendant was charged in the recorder’s court with “making improper proposals to Miss Sadie Schwarz,” and under this charge evidence was introduced. After all the testimony was concluded the charge was changed upon the docket by the court to “disorderly conduct by making improper proposals to Miss Sadie Schwarz.” The defendant was found guilty and sentenced for the latter ofEense. We thus have a defendant convicted of a .charge under which no evidence whatever was submitted. The writer knows of no law which authorizes a change of the charge against the accused after all the evidence has been introduced; and no law which would authorize a conviction under a particular charge without the introduction of any evidence under that charge. A broad principle of law is involved in this case; and to sanction the practice as disclosed by the record would, in my opinion, constitute a dangerous precedent. Judge Meldrim, in his order refusing to sanction the writ of certiorari, refers to the change of the charge as an “amendment;” but since there was no such penal ofEense as “making improper proposals,” there was nothing to amend. The recorder simply made the charge after all the evidence was concluded, and sentenced the defendant for an ofEense different from that for which he was prosecuted. “One can not be tried and convicted for an ofEense different from that for which he is prosecuted or called upon to answer.” Mayor &c. of Columbus v. Arnold, 30 Ga. 517. A fortiori, he can not be convicted when the charge under which he was prosecuted constituted no penal ofEense at all. See also Lesterjelle v. Columbus, 30 Ga. 936. “Penal statutes must be construed strictly.” Rouse v. State, 4 Ga. 139. The lax methods often employed in our recorder’s courts should not go to the extent of doing violence to the fundamental principles of our system of jurisprudence. “One charged with the violation of a municipal ordinance is, equally with those charged with greater crimes, entitled to a fair and impartial trial.” Porter v. Thomasville, 16 Ga. App. 313 (85 S. E. 283).

Since the petition for certiorari plainly shows that the real complaint of the defendant is that there is no law or ordinance covering the charge under which he was tried, and that the trial judge had no legal right to change the charge against the defendant after all the evidence was introduced, the issue before us is clearly presented. Under the issue raised, as I see it, there was no ordinance to submit to the superior court or to this court, and, therefore, the decisions cited by my colleagues in the majority opinion are, in my opinion, not in point.

Even in civil cases, where the rule is not so strict, certain errors “render the grant of a new trial imperative, without reference to the correctness of the verdict.” See Sanders v. Nicolson, 101 Ga. 739 (3) (28 S. E. 976). The defendant was entitled to a fair trial according to the rules of law. In my opinion he was not legally convicted and the court erred in refusing to sanction the writ.


source: Caselaw Access Project

author: Broyles, C. J.

license: Public Domain

text:
    19690.
    DANIEL v. THE STATE.
    Decided June 11, 1929.

      R. Lawton LeSueur, Z. 8. Childers, for plaintiff in error.

      T. O. Marshall, solicitor, contra.
   Broyles, C. J.

The defendant was charged with the larceny of 800 pounds of cottonseed “of what is known as Council Toole variety, of the personal goods of S. B. Heys and L. K. Heys.” Hpon the trial the evidence for the State was wholly circumstantial and failed to affirmatively establish that the cottonseed found in the possession of the accused were the identical seed alleged to have been stolen. The identity of the subject-matter of the larceny was not proved by testimony that the stolen seed were of the Council Toole variety and that the seed in the possession of the defendant were of the same variety. It follows that the conviction of the accused was unauthorized, and that the refusal to grant him a new trial was error.

Judgment reversed.

Lulce and Bloodworth, JJ., concur.


text:
    19696.
    Blumenfeld v. Citizens Bank and Trust Company.
    Decided June 11, 1929.

      George S. Richter, for plaintiff.

      Mclntire, Walsh & Bernstein, for defendant.
   Broyles, C. J.

Under the facts of the case as disclosed by the record the court did not err in directing a verdict in favor of the plea in abatement filed by the defendant bank, and in dismissing -the case.

Judgment affirmed.

Lulce amd Bloodworth, JJ., concur.


author: Bloodworth, J.

text:
    19698.
    JONES v. GRAHAM, executor.
    Decided June 11, 1929.

      J. L. Wallace, L. A. Dean, J. F. Kelly, M. B. Fubanics, for plaintiff.

      Maddox, Matthews & Owens, F. W. Copeland, for defendant.
   Bloodworth, J.

(After stating the foregoing facts.) The petition seems to seek to declare on an agreement made by E. A. Jones and the plaintiff. The only effort to allege such an agreement is found in the first part of paragraph 4 of the petition, hereinbefore set out. Under that alleged agreement the plaintiff can not recover a child’s part in the estate of E. A. Jones, for the reason that paragraph 7 of the petition alleges that “the contract between this petitioner and the said E. A. Jones was terminated at the expiration of. 11 years.” The plaintiff then was only 19 years old, and at that time had not rendered services to the said E. A. Jones during his entire minority. Moreover, while it is alleged that James Jones, the son of E. A. Jones, received the sum of $3,000 as his part, of the. estate; it is not shown that this was the amount of a “'child’s part,” it being alleged that the estate was worth more than $25,000, and it not being shown how many children the deceased had, or what his debts were, or that the amount of a child’s part had been definitely determined. In addition the suit was for a fixed sum of $3,000 alleged to be due at the time of the death of E. A. Jones. If the remaining portion of paragraph 4 not discussed above can be considered as a suit on a quantum meruit, the allegations of the petition are too indefinite to support such a suit. E. A. Jones did not recognize any obligation: of any kind to the plaintiff, as shown, by the allegations in the petition that he made a will-and made no provision for paying any such thing. As was said in Lansdell v. Lansdell, 144 Ga. 571, 573 (87 S. E. 782), quoting from Wall’s Appeal, 111 Pa. St. 460, “Claims of this nature against dead men’s estates, resting entirely in parol, based largely upon loose declarations, presented generally years after the services in question were rendered, and when the lips of the party principally interested are closed in death, require the closest and most careful scrutiny to prevent injustice being done. We can not too often repeat the cautions we have so frequently uttered upon this subject, and we feel that the present occasion is one which demands both their repetition and their application.”

From the foregoing it appears that the allegations of the petition are vague and indefinite, that the petition does not set out a cause of action, and that the judge properly sustained the general demurrer and dismissed the petition. See Lansdell v. Lansdell, supra; Russell v. Switzer, 63 Ga. 711, 725; Grizzle v. Gaddis, 75 Ga. 350 (2); Bentley v. Smith, 3 Ga. App. 242 (59 S. E. 720); Graham v. Jones, 39 Ga. App. 610 (147 S. E. 902), and cit.

Judgment affirmed.

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


text:
    19699.
    JONES v. GRAHAM, executor.
    Decided June 11, 1929.
    See case 19698, next before.
   Bloodworth, J.

The petition as amended is as follows: “That John M. Graham is the executor of the last will and testament of B. A. Jones, deceased, and is a citizen and resident of said State and county, and this court has jurisdiction of the parties and the subject-matter of this suit. (2) That at the time of the death of the said B. A. Jones he was indebted to the petitioner in the sum of $2,000 upon a certain contract which was fully executed by the petitioner. (3) The terms and conditions upon which said contract was founded is herein set out as follows, to wit: The petitioner rented from the said E. A. Jones for the year 1925, a certain farm located and situated just south of Lindale, Floyd County, Georgia, upon which was situated two-dwelling houses, and, as a part of said rental contract, was to have the use of two mules, and all farming tools on the place, used or to be used in the cultivation of said farm, and for the rent of said farm, mules, and tools, agreed to pay the sum of $600 for the year 1925; and the petitioner entered into the possession of said premises and began the preparation of the land for the planting and growing of the crops hereinafter specified. (4) That on or about the 1st day of May, 1925, the said E. A. Jones came to the petitioner and proposed and importuned the petitioner to surrender to the said E. A. Jones the rights that he had acquired under said contract of renting, and devote his, the petitioner’s, time to the care and nursing of the said E. A. Jones, who at that time was very sick. Thereupon the petitioner entered into the contract sued on whereby the said petitioner surrendered to the said E. A. Jones the possession of said lands, mules, and tools, upon the promise of the said E. A. Jones to pay the petitioner for so surrendering said lands,- mules, and tools and caring for and nursing the said E. A. Jones, when his services were required, a sum equal or more than the petitioner could or would realize from the cultivation of said lands. (5) Petitioner further shows that he prepared to plant 20 acres in cotton, which would, under ordinary farming conditions, have produced 15 bales of cotton of the value of $1500, and 450 bushels of cottonseed of the market value of $225; 10 acres of corn which would have produced 200 bushels of corn, under ordinary conditions, of the value of $250 and 1,000 bundles of fodder of the value of $30; 2 acres of sweet potatoes, which would have produced 100 bushels of sweet potatoes of the value of $300; 5 acres in peas, which would have produced 50 bushels of peas of the value of $200; and 1 acre in watermelons, beans, and other vegetables, of the value of $150. (6) That the cost of making the above-described crops would have been $1,068.75, itemized as follows: rent $600; 2 tons of fertilizer, $100; ginning of cotton, $60; labor in making and gathering, $240.00; cotton picking, $168.75; making a total expense of $1,-068.75. (7) That petitioner would have received for rent of the two tenant houses on said farm the sum of $30 per month, or a total of $240 for 8 months. (8) That the crops intended to have been raised on said farm were the usual and ordinary crops raised on said land, and that the year 1925 was a good year to make crops, and the prices paid from said crops were good, and that the petitioner could and would have easily made from the crops above mentioned and the rent of the two dwelling houses the sum of $2000 over and above all expenses for the year 1925.” A demurrer to the petition, on both general and special grounds, was filed. The court sustained the demurrer and dismissed the petition.

The foregoing petition shows that the plaintiff in error rented from E. A. Jones a certain farm for the year 1925; that about the 1st of May the said Jones proposed to Mm to cancel said contract of rental, to which he agreed, and that he and Jones then entered into an agreement under which he surrendered possession of said farm, the mules, etc., and agreed to care for and nurse said Jones, who was sick, when his services were required, and was to be paid for surrendering the farm and waiting on said Jones a sum equal to or more than he “could or would realize from the cultivation of said land.” This contract is indefinite both as to the services to be rendered by. the plaintiff and as to the compensation he was to receive. “The rule as to certainty is that the agreement must be so certain and complete that each party may have an action upon it.” The court properly sustained the demurrer to the petition and dismissed it. See Bentley v. Smith, 3 Ga. App. 242 (59 S. E. 720); Grizzle v. Gaddis, 75 Ga. 350 (2); Hart v. Georgia Railroad Co., 101 Ga. 188 (28 S. E. 637); Coweta Falls Mfg. Co. v. Rogers, 19 Ga. 417 (5) (65 Am. D. 602); Red v. Augusta, 25 Ga. 386 (2), 390; Prior v. Hilton & Bodge Lumber Co., 141 Ga. 117 (80 S. E. 559); Graham v. Jones, 39 Ga. App. 610 (147 S. E. 902), and cit.

Judgment affirmed.

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


author: Bboyles, C. J.

text:
    19700.
    Jones v. Elkin Drug Company.
   Bboyles, C. J.

1. “Even where a garnishee is in default, and a judgment is rendered against it, upon motion during the same term, setting forth good and sufficient reasons for not answering in due time, and denying indebtedness to defendant, the court is not without discretionary power to set aside the judgment and relieve the garnishee from having an injustice done to it.” Dannenberg Co. v, Adler-May Co., 137 Ga. 111, 113 (72 S. E. 906), and cit.

Decided June 11, 1929.

H. A. Allen, J. S. Hall, for plaintiff.

B. II. Burgess, for defendant.

2. Under tlie above-stated ruling and the facts of the instant case this court can not hold, as a matter of law, that the trial court was “without discretionary power” to set aside the judgment against the garnishee. Judgment affirmed.

Lulce and Bloodworth, JJ., ooncur.


author: Luke, J.

text:
    19710.
    Cross v. The State.
    Decided June 11, 1929.

      J. A. Drake, for plaintiff in error.

      B. T. Gastellow, solicitor-general, Bond Almand, contra.
   Luke, J.

The bill of exceptions in this case was certified by the judge on February 18, 1929, and was filed in the office of the clerk of the trial court on March 8, 1929. Not having- been filed within fifteen days from the date of the certificate of the judge, as required by law, this court is without jurisdiction, and the writ of error must be dismissed. Johnson v. State, 5 Ga. App. 490 (63 S. E. 533); Woods v. State, 11 Ga. App. 383 (75 S. E. 491), and cit.

Writ of error dismissed.

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


author: Bboyles, O. J.

text:
    19714.
    Powell v. The State.
    Decided June 11, 1929.
   Bboyles, O. J.

1. The ground of the motion for a new trial complaining of the admission of certain testimony is too defective to be considered, since it does not give the name of the witness whose testimony was objected to. Adams v. State, 22 Ga. App. 252 (1), and citations.

2. The grounds of the motion for a new trial based upon alleged newly discovered evidence can not be considered, as it fails to present any affidavits as to the character, credibility, associates, etc., of the “newly discovered” witness. Griggs v. State, 17 Ga. App. 301 (15), 305 (86 S. E. 726).

3. There was some evidence authorizing the verdict, .and, the finding of the jury having been approved by the trial court, this court is without authority to interfere.

Judgment affirmed.

Lulce and Bloodworth, JJ., eoneur.

Claud Mahaffey, Dorsey Davis, for plaintiff in error.

Rupert A. Brown, solicitor, contra.


text:
    19721.
    BENFORD v. THE STATE.
    Decided June 11, 1929.

      R. D. Feagin, W. E. Bartlett, for plaintiff in error.

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

An indictment can properly contain a count for burglary and one for receiving stolen goods knowing them to be stolen when the articles were knowingly received from the person who committed the burglary and were taken from the store at the time it was burglarized. In Williams v. State, 72 Ga. 180, it is held that “Different counts charging offenses of the same nature may be joined in one indictment.” Mitchell v. State, 6 Ga. App. 554 (1). Burglary and receiving the fruits of the burglary are of the same nature. Each is a felony, and in each the same quantum of punishment would follow a conviction. In Johnson v. State, 61 Ga. 212, the first headnote is as follows: “A count for receiving stolen goods knowing them to be stolen, may be joined in an indictment with a count for simple larceny.” We are not unmindful of the fact that in Gilbert v. State, 65 Ga. 449, the Supreme Court held that a count for burglary could not b'e united with one for receiving stolen goods knowing them to be stolen. However, that decision was based on the fact that at that time receiving stolen goods knowing them to be stolen was a misdemeanor; the Supreme Court expressly stating that “had the indictment been one for larceny from the house, and for goods under the value of fifty dollars, then to that might have been joined the count for receiving stolen goods, because they are of the same nature.” (Italics ours.) See Freeman v. State, 35 Ga. App. 223 (132 S. E. 782); Warren v. State, 32 Ga. App. 359 (123 S. E. 182); Sewell v. State, 23 Ga. App. 765 (2) (99 S. E. 320); Braxley v. State, 17 Ga. App. 196 (2) (86 S. E. 425); State v. Hogan, R. M. Charlton, 474, 477; Sims v. State, 110 Ga. 290 (2) (34 S. E. 847); Hoskins v. State, 11 Ga. 92 (1).

Where an indictment contained two counts; the first charging burglary and the second receiving stolen goods' knowing them to be stolen, and in his address to the jury the solicitor-general confined his argument to the burglary count, and on the conclusion of the arguments the judge instructed the jury relative to the burglary count only, and, on his attention being called by the solicitor-general to the second count, he charged the jury relative to that count, it was not error for the judge to charge as to the second count, although the solicitor-general by his argument had led the court to believe that he had abandoned that count.

When considered in the light of the entire charge as it relates to the second count, there is no error in the portion of the charge embraced in the second special ground of the motion.

The excerpts from the charge embraced in special grounds 3 and 4 related to the first count of the indictment, and even if they are erroneous, they are harmless, as the defendant was convicted on the second count only. Shaw v. State, 38 Ga. App. 269 (2) (143 S. E. 600).

A ground of the motion alleges that the court erred in refusing a mistrial because of “the prejudicial and unfair remark of the solicitor-general in the presence of the jury and on account of the testimony of the witness Parks that he and the defendant had been convicted of a different burglary.” In a note to this ground the trial judge said: “The facts with reference to said ground are that the solicitor-general asked the State’s witness, Nelson Parks, about his intimacy and friendship to and with the defendant, and the witness said they were very friendly, and remarked that they had both been in a previous burglary and had been convicted. The defendant’s counsel objected to this reply, and one of the objections urged was that the record should be the highest evidence of the previous conviction. The solicitor-general stated that the record was available. Thereupon defendant’s counsel moved for mistrial as stated, but the court ruled out the reply as far as it related to any previous conviction, and instructed tire jury not to consider any such evidence, and also instructed the jury not to consider what the solicitor-general had said as to the availability of the record.” It appearing that the evidence given by the witness to the effect that he and the defendant “had both been in a previous burglary aiid had been convicted” was volunteered by the witness, and that the solicitor-general was not responsible for this statement getting in the record, this, under the qualifying note of the judge, does not require the grant of a new trial.

Judgment affirmed.

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


text:
    19726.
    Graham v. The State.
    Decided June 11, 1929,
   Broyles, C. J.

1. Under tlie facts of the case the refusal of the court to declare a mistrial (the motion being based upon the statement of counsel for the State, in the concluding argument, that if the jury, with the evidence before them, did not convict, they should not be allowed to sit on the jury) is not cause for a new trial. When the judge denied the motion he instructed the jury “not to consider any statement made by counsel but to look to the evidence and base their verdict upon the evidence from the witness or witnesses produced from the stand and from the charge of the court.” Furthermore, the verdict was demanded by the evidence adduced by the State (the defendant made a statement but introduced no evidence). See, in this connection, Burke v. State, 27 Ga. App. 314 (3) (108 S. E. 119).

2. The refusal to grant a new trial was not error for any reason assigned.

Judgment affirmed.

Luke and Bloodworth, JJ., concur,

If. L. Williams, for plaintiff in error.

Wade II. Watson, solicitor, contra.


text:
    19727.
    O'QUINN et al. v. THE STATE.
    Decided June 11, 1929.

      J. B. Moore, J. P. Ilighsmilh, for plaintiffs in error.

      Wade II. Watson, solicitor, contra.
   Luke, J.

Isham O’Quinn and his wife, Mrs. Bertha O’Quinn, were jointly charged with the offense of riot, and were jointly tried and convicted. They demurred to the accusation, and, on the overruling of the demurrer, liled exceptions pendente lite. In their bill of exceptions they assign error on the overruling of the demurrer, and on the overruling of their motion for a new trial.

The accusation was sufficient to withstand the demurrer.

The substance of the testimony is that Isham 0’Quinn went to the home of Miss Annie Laurie Pleape, who was living at the home of Mr. and Mrs. Lightsey? and demanded that she pay him for an incubator, or for the use of the incubator. Miss Heape stated that the incubator was no good, and that she had turned it back and did not owe anything on it. O’Quinn “became very angry and cursed, and said he was going to get his wife and bring her over there and have her to beat hell out of Miss Heape.” He did go and got his wife and brought her back, and then “took the baby from his wife and told her to go ahead.” Mrs. Lightsey asked O’Quinn “to take his wife away, and he refused to do so.” Miss Heape told Mrs. O’Quinn “not to come in, and that if she did I would strike her with the chair. She, Mrs. O’Quinn, came upon the porch and appeared to be in a rage. She used a lot of bad language and picked up a hot iron that was on the porch where the girls had been ironing. Mrs. Lightsey prevented her from coming in. She then started around the house, and when she got to a window threw the iron at me through the window.” Mrs. O’Quinn, in her statement at the trial, did not deny that she went there, or that she “used a lot of bad language,” or that she threw the hot iron through the window at Miss Heape; but she did state that she was not guilty of the offense charged, and “that her husband did not have anything to do or say in it.”

There is no merit in the general grounds of the motion for a new trial. According to the testimony, Isham O’Quinn said he was going to get his wife and have her beat hell out of the prosecutrix, and he did go and get her, and refused, upon request, to take her away, and took the baby from her and told her to go ahead. Mrs. O’Quinn did “go ahead,” according to the evidence. “If two or more persons do an unlawful act of violence, or any other act in a violent and tumultuous manner, they shall be guilty of a riot.” Penal Code (1910), § 360. And “all persons connected with and sharing in the common purpose of the assembly were guilty of riot, whether their conduct was violent and tumultuous or not.” Green v. State, 109 Ga. 536 (2) (35 S. E. 97). (Italics ours.)

The first special ground of the motion for a new trial alleges that the defendants were tried jointly; that under the act creating the city court of Baxley, as amended, the defendant has four strikes and the State two; that movants contended that they were entitled to four strikes or challenges each, giving them together eight strikes; that the court ruled that the defendants were not each entitled to four strikes, but together were entitled to four strikes; and that this ruling was error. Neither the State nor the defendants elected to sever. There was no evidence or allegation that any unknown party, or any one other than the two defendants on trial, participated in the alleged riot. It is settled by section 360 of the Penal Code (1910), and by Lewis v. State, 5 Ga. App. 496 (63 S. E. 570), that the offense of riot “is a joint offense for which one person alone can not be indicted or convicted,” unless it be shown that the party named, jointly with one or more others whose names are unknown, participated in the unlawful act or acts that constitute the offense of riot. In the instant case, since only the two defendants were involved, if one were acquitted, the other alone could not have been guilty of riot; and consequently the acquittal of one meant the acquittal of both. It takes two or more to commit the offense of riot. It is the general mle that “where there is a joint trial under a joint indictment, each defendant may challenge the whole number of jurors to which he would be entitled if tried separately;” and thus each defendant would get the benefit of his own challenges and the challenges of his codefendants. However, in this State there is a well recognized exception to this rule; and that exception is that where two persons are jointly indicted for an offense that requires their joint action or concurrence, such as riot or affray, and there is no allegation or contention that any other person participated in the crime, and neither the State nor the defendants elect to sever, and the defendants are tried jointly, and the acquittal of either will operate as an acquittal of both, they may be required to join in their challenges. This exception to the general rule was follorved by the Supreme Court in 1853, and has been consistently followed ever since. An affray, like a riot, requires two or more persons (see sections 360 and 361 of the Penal Code), and the Supreme Court, in Hawkins v. State, 13 Ga. 322 (58 Am. D. 517), in passing on a motion for a new trial where two were indicted for an affray, said: “The defendants are to be tried, together, and for the purposes of the trial and in making their defense, are to be considered as having one common interest; and this view of the question disposes of the objections made to the refusal of the court to allow each defendant to strike seven of the jurors peremptorily. . . Where two are indicted for an affray, the successful defense of one will operate as an acquittal of both. . . Let the judgment of the court below be affirmed.” Since the ruling of the Supreme Court quoted above, this court has by direction of law refrained from conflicting therewith. In Cruce v. State, 59 Ga. 84 (2), the Supreme Court held that “when two are tried jointly for an offense of which one may may be convicted, though the other be acquitted, . . each is entitled to his full statutory allowance” of peremptory challenges. The language, “of which one may be convicted, though the other be acquitted,” was undoubtedly inserted to distinguish that case from a case where the acquittal of one meant the acquittal of both, as decided in the Hawkins case, supra. In the opinion in the Cruce case, at page 88, the Supreme Court recognizes the exception to the general rule in this State. It lays down the general rule, and then the exception (13 Ga. 324), and says, in effect, that the exception prevailing in this State is denied in some other States, and cites an Ohio case. It is thus recognized that the exception does prevail in this State. In Nobles v. State, 12 Ga. App. 355 (77 S. E. 184), this court held: “Where two or more persons are jointly indicted and put on trial for an offense for which one may be convicted and the others acquitted, each is entitled to the same number of peremptory challenges as would be allowed him in the case against him had been tried separately.” Again, we have the signilieant clause, “One may be convicted and the others acquitted.” We can ascribe no reason for its embodiment in the .headnote except for the purpose of avoiding a conflict with the Supreme Court ruling in cases where the acquittal of one means the acquittal of the other. In the opinion in the Nobles case it was said: “So in Hawkins v. State, 13 Ga. 322, it was held that persons jointly indicted for an affray should not be allowed separate challenges, though this ruling was put upon the ground that the offense charged was a joint one and the acquittal of one was the acquittal of all? We have not been able to find where this exception has ever been overruled, but on the contrary it seems to have been consistently adhered to. We are convinced that in this State both the general rule and the exception to it are well settled. The trial court did not err in limiting the defendants to four strikes.

The second special ground of the motion alleges that the court erred in permitting the prosecutrix to testify over objection of the defendant Bertha O’Quinn, that Isham O’Quinn went to the'residence of the prosecutrix, made demand upon her for payment of the alleged indebtedness, and, upon her refusal to pay, became very angry and cursed, and said he was going to get his wife and bring her over there, and have her beat hell out of the prosecutrix. The evidence shows that Isham O’Quinn carried out his threat; that he did go and get his wife and brought her back, and she attempted to commit a violent injury'upon the prosecutrix; and that, after bringing her back, he took the baby from his wife and told her to go ahead after the prosecutrix. The evidence objected to was admissible to show common intent and concert of action and purpose. Concurrence of purpose is essential; and this conduct of Isham O’Quinn was a part of the transaction.

The third special ground of the motion for a new trial alleges error because the court “instructed the jury that they should consider the statement of Mrs. O’Quinn as to herself only, and not as to the guilt or innocence of her codefendant, Isham O’Quinn.” There was no error in this charge. Under the law a defendant has the right to make to the court and jury “such statement as he deems proper in his own defense.” “The right of the accused to make to the jury a statement in his defense is strictly a personal privilege.” Brown v. State, 10 Ga. App. 50 (5) (72 S. E. 537). The statement of Mrs. O’Quinn'was not evidence, and there is no provision of law by which she might become a witness. Roberson v. State, 12 Ga. App. 102 (2) (76 S. E. 752). In this case the defendants were man and wife; but even “on the trial of several persons jointly indicted for murder, the statement of one of them in his own defense, not under oath, can not be considered in determining the guilt or innocence of the other defendants.” Berry v. State, 122 Ga. 429 (50 S. E. 345). Under this charge that the jury could consider the statement of Mrs. O’Quinn as to herself only, and not as to the guilt or innocence of her codefendant, the jury could consider everything in Mrs. O’Quinn’s statement so far as it affected her guilt or innocence. If she stated that her husband had no part in the alleged riot, and that therefore she was innocent of the charge, because it took at least two to commit the offense of riot, the jury could have considered this statement so far as it affected her, and could have concluded that she was not guilty, because no one participated with her, and the crime charged was not proved. This is true even though the acquittal of either of the defendants would result in the acquittal of the other. The husband could have made a statement in his own behalf, but did not do so. We therefore hold that where a man and his wife are jointly indicted and jointly.tried, and the husband makes no statement, and the wife makes a statement not under oath, it is not error for the court to charge the jury that they should consider the statement of the wife “as to herself only,” and not as to the guilt or innocence of her codefendant.

The evidence authorized the verdict, which has the approval of the trial judge, and for no reason pointed out in the record did the court err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    19728.
    Frazier v. The State.
    Decided June 11, 1929.

      M. B. Eubanks, for plaintiff in error.

      M. Neil Andrews, solicitor-general, Dean Owens, contra.
   Bloodworth, J.

The motion for a new trial contains no special grounds, there is some evidence to support the verdict, and “whenever there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Toole v. Jones, 19 Ga. App. 24 (90 S. E. 732). See Journigan v. State, 38 Ga. App. 741 (2) (145 S. E. 500), and eit.

Judgment affirmed.

Broyles, O. J., cm id Luke, J., concur.


author: Broyles, O. J.

text:
    19737.
    Hughes v. The State.
    Decided June 11, 1929.
   Broyles, O. J.

1. The bill of exceptions having been amended to conform to the record, the request of the solicitor-general (made in his brief), that the writ of error be dismissed, is denied. See, in this connection, Civil Code (1910), § 6184; Wooten v. Archer, 49 Ga. 388 (3).

2. The accused was convicted of larceny from the house. The evidence tending to connect him with the offense was wholly circumstantial, and, while raising a strong suspicion of his guilt, was inadequate to exclude every other reasonable hypothesis save that of his guilt. It follows that the court erred in refusing to grant a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

M. B. Súbanles, for plaintiff in error.

M. Neil Andrews, solicitor-general, contra.


text:
    19738.
    JOHNSON v. THE STATE.
    Decided June 11, 1929.

      II. A. Allen, J. O. Miner, for plaintiff in error.

      John A. Boylein, solicitor-general, J. W. LeCraw, contra.
   Luke, J.

The defendant, Eemus Johnson, was charged with murder and was convicted of voluntary manslaughter. He assigns error upon the overruling of his motion for a new trial.

There was evidence that the deceased, G. W. Brown, and his brother went to the house of the defendant and purchased from him a quart of whisky; that they then went away and, together with a negro, drank the whisky; that they then came back to the defendant’s house to get more whisky, and, on the back porch of the house, had some words with the defendant’s wife; that the defendant came out, and an argument and scuffle ensued between him and the two Browns; that he shot G. W. Brown with a pistol, inflicting a wound from which Brown died, and that the defendant was hit on the head with something. No witness swore that the deceased or his brother had a deadly weapon, or any weapon at all; but the defendant stated that he was hit with something, but “never did see what he hit me with.” The evidence further showed that when the officers came to arrest the defendant he was drinking, and a man who was in defendant’s house with him was drunk; and that the defendant’s wife came in the house with some whisky and defendant told the officer that it was his, defendant’s, whisky.

The first special ground of the motion for a new trial alleges that the court erred in permitting a witness for the State to testify, over objection, that the defendant was drinking at the time of the shooting. It is a matter of human experience that with many men drinking is at least conducive to violent conduct; and this evidence was admissible to show motive. “Evidence to show motive is always relevant and admissible.” Wall v. State, 153 Ga. 309 (112 S. E. 142). And “the testimony that the accused was drinking at the time of the alleged assault was admissible for the purpose of showing a condition of mind which might have rendered him reckless of consequences.” Roberts v. State, 9 Ga. App. 807 (72 S. E. 287).

The second special ground of the motion alleges that the court erred in permitting a witness for the State to testify, over objection, that “he (defendant) said it was his whisky, and that he sent her out after it,” referring to the whisky brought into defendant’s house by his wife after the shooting. As held in the preceding paragraph, drinking tends to show motive, and the evidence here complained of tends to corroborate the evidence as to the defendant’s drinking. See Mulligan v. State, 18 Ga. App. 464 (12) (89 S. E. 541). Furthermore, this evidence would have been admissible, after the defendant had made his statement, to rebut his statement that he had no whisky.

Special grounds 3 and 7 allege that the court erred in charging on voluntary manslaughter. When it is considered that there was evidence of an “argument” and a “scuffle” — mutual combat, and that no witness swore that the deceased or his brother had a weapon likely to produce death with which they could have made a felonious assault upon defendant, and that the defendant did not claim in his statement that he was attacked with a deadly weapon, we are constrained to hold that the court was authorized to charge on voluntary manslaughter. “When the defense to an indictment for murder was that the accused did the killing under the fears of a reasonable man that a felony was about to be committed -upon him, and his own statement at the trial left it open to question whether the alleged assault upon him therein set up as the ground of that fear was, as the same appeared to him at the time of the homicide, felonious or of a less serious nature, and when, in view of all the evidence and the statement, the jury would have been warranted in finding that the accused really did not entertain any such fear, but that there was a minor assault upon him sufficient to justify the excitement of passion, it was not erroneous to charge upon the law of voluntary manslaughter.” Chestnut v. State, 112 Ga. 366 (4) (37 S. E. 384). See also Grinstead v. State, 37 Ga. App. 118 (139 S. E. 120), where it is held that if there is anything deducible from the defendant’s statement or from the evidence tending to show that he was guilty of voluntary manslaughter, or that would be sufficient to raise a doubt as to this grade of homicide, the court is authorized to charge upon voluntary manslaughter.

The fourth special ground alleges that the court erred in failing to charge the law relative to “forcible attack and invasion on the property or habitation of another as embodied in section 72 of the Penal Code.” While the failure so to charge was error,'we do not think, under the record before us, that such a charge would have produced a different verdict, and therefore we hold that it is not cause for reversal. The record shows that the purpose of the deceased in going to the house of the defendant was not forcibly to attack or invade his property or habitation, but to get whisky. Furthermore, the record shows that the alleged attack of the deceased on the defendant was on his person rather than on his habitation; and the defendant in his statement made no claim that he shot in defense of his habitation, but did state that he shot in defense of “self,” and that he had to do something to protect himself. The substance of the defendant’s defense as made by his statement was that he shot in defending against an assault upon himself, rather than in defense of his habitation. He stated: “I done it in self-defense.” Where the evidence shows that the deceased went to the defendant’s home to buy whisky, and an argument and fight between the defendant and the deceased took place on the defendant’s back porch, and the defendant in his statement at the trial said that he shot the deceased in self-defense, and there was no request for a charge of section 72 of the Penal Code on the law relative to. defense of property and habitation, the failure of the court so to charge does not require a new trial.

The court did not err in charging that “justifiable homicide is the killing of a.human being in self-defense, or in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on either.” See section 70 of the Penal Code. The failure to charge further in reference to habitation is covered by our discussion of ground 4.

The court did not err in charging the jury that “If a person were to attempt a serious personal injury upon another with his hand, or without a weapon likely to produce death, this would not usually be a felony.” This charge was authorized because no witness swore that the deceased had a deadly weapon, and the defendant in his statement said that he did not know what he was hit with. The court plainly charged that if there was an attempt to commit' a serious injury upon the defendant with a weapon likely to produce death, with intent to kill, the defendant would be justifiable. The court did not intimate what weapon the de-. ceased had, or that he had any at all, but simply charged the law that was applicable. He charged what would usually be a felony, and what would not be a felony; and his definition of a felony as used in the charge was correct.

The excerpt from the charge complained of in the 8th ground of the motion for a new trial, when considered in connection with the remainder of the charge, in the absence of a request for a different charge on justifiable homicide, was not error.

The conviction of the defendant was authorized by the evidence, and for no reason pointed out in the record did the court commit error in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    19590.
    BUCHANAN v. ELLIS et al.

    Decided June 12, 1929.
    Rehearing denied June 27, 1929.

      Jones & Anderson, for plaintiff.

      McDaniel, Neely & Marshall, Harry L. Greene, for defendants.
   Luke, J.

Mrs. Kate C. Buchanan filed suit against Tom Ellis, Eloyd Walden, C. W. Belcher, and Mrs. Kate Belcher, for damages on account of the death of her son, resulting from a collision between a motorcycle, on which her son was riding, and “a Eord car then being operated by the defendants C. W. Belcher and Mrs. Kate Belcher.” Defendants Ellis and Walden filed general demurrers to the petition, which the trial judge sustained. On these rulings sustaining the general demurrers the plaintiff assigns error in her bill of exceptions. The petition set forth no cause of action against defendants Ellis and Walden, and the court properly sustained their demurrers and dismissed the case as to them.

Judgment affirmed.

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


author: Russell, J.

text:
    727.
    FLOYD COUNTY v. MILLER.
    It is the duty of a coroner to hold an inquest when it is apparent from the body of the deceased that he came to his death by violence, unless it be known by whose hands death was occasioned; and this rule should not be relaxed in a case where a citizen is killed by a mob.
    Certiorari, from Floyd superior court — Judge Wright. June 7, 1907.
    Argued December 10, 1907.
    Decided March 16, 1908.

      J. F. EilJyer, for plaintiff in error. G. E. Maddox, contra.
   Russell, J.

In this case Floyd County declined to pay the coroner for holding an inquest. The coroner brought suit for his fee, and the jury in the justice’s court rendered a verdict in his favor, which, upon certiorari, was upheld by the judge of the superior court; and the county now excepts to the judgment holding it liable.

The testimony shows that two policemen of Rome, in response to a call for their services, went to the residence of one of the citizens of that city and attempted to arrest the deceased. The evidence does not disclose what offense, if any, the deceased had committed. Neither officer had any warrant for the arrest of the alleged culprit, nor was the offense committed in their presence. The -accused, whatever he had done, if anything, resisted arrest, as under the law he had a right to do, and, in the mélée that ensued, shot a bystander and retreated into an outhouse, where he was killed by a mob. Iiis bodjr was found inside of the door of the house, and it was evident that his death had been caused by shots. His revolver lay beside him and bore evidence of having been discharged but once. It appears from the evidence that a large crowd was present and shots were fired into -the house from almost every direction; and the specific point made is that there was no need for an inquest by the coroner, because there were many witnesses to the killing; in other words, that the coroner was not authorized to hold any inquest, nor entitled to any fee for holding an inquest, because of the large number of people who saw the firing of the shots, from one of which death resulted. The record does not disclose what was the result of the inquest, or whether it resulted in the ascertainment of who fired the fatal shot; but the testimony in the justice’s court, we think, unequivocally demonstrates that the coroner, did right in holding the inquest, and is entitled to recover his fee for his services.

Guice, one of the policemen who was summoned, testified that the negro was shot by some one of the crowd; and this disposed of the presumption, if any such there be, insisted upon by the learned counsel for the countjr, that the deceased was killed by one of the officers. We waive any discussion of the right of the officers to kill the deceased because he had refused to submit to an arrest without a warrant; for the only testimony before 'the justice’s court was that of Mr. Guice, who said that the deceased was shot by somebody in the crowd around the house. According to the testimony, nearly five hundred people surrounded the house. The evidence does not disclose how many were shooting, but cer- • tain it is (in the absence of any evidence that such a one had been summoned as part of the officers’ posse) that if one of the crowd killed the negro, he was guilty of murder; and if the person was unknown, it was the duty -of the coroner to set in motion the machinery of the law to ascertain the murderer. The fact that a large number of persons are present at the commission of a crime does not necessarily imply that there are witnesses present. There may be no witnesses present; because all who are present may be jointly criminal in the perpetration of an offense. To hold that because a large number of persons are present, who might be witnesses, this will preclude the holding of a coroner’s inquest, would be to say that no coroner’s inquest should be held where a citizen meets death at the hands of a mob. Certainly the legislature never intended the law to be thus construed.

We are well aware that the policy of curtailing expenses and of preventing useless 'inquests was manifested by the passage of the act of 1893 (Acts of 1893, p. 116) which superseded §589 of the Code of 1882, and that the opinion was expressed by Judge Lump-kin, in Meads v. Dougherty County, 98 Ga. 699 (25 S. E. 915), that “some of the coroners of this State* are overzealous in the matter of holding inquests.” The facts in the Meads case, however, bear no parallel to those in the instant case. In the Meads case the few bleached bones that had been washed upon the banks of the creek were held not to constitute a dead body; and very naturally the opinion was expressed that it was not apparent from these bones that violence had caused the death. All that was said, however, in the Meads case was mere obiter dicta; because the coroner’s fee for holding the inquest was not before the court, the only point made in the bill of exceptions then being that the coroner was not entitled to the fee of $15 for expense incurred in burying the body, because it appeared that the bones were interred in a soap-box without expense to any one. The present case is covered squarely by the third division of .§1255 of the Penal-•Code. “Coroners shall take inquest over dead bodies in their respective counties as follows: . . 3d. Of all dead bodies found, whether of persons known or unknown, when it is apparent from the body that violence caused the death.” It was apparent from the body of this deceased that he had been shot to death. 'Under our construction of the code section, nothing more is necessárv than this to place upon the coroner the duty of holding an inquest, where no witnesses are known. The statement that the grand jury can investigate the case would be no excuse for the non-performance of this duty on the part of the coroner; because that is true as to the commission of every crime. The office of coroner is useless if it be not to collect evidence while all the details of the act are fresh in the minds of the witnesses, before the witnesses disappear, and before the offender has opportunity to make good his escape. And if no crime has been committed, the inquest may develop that fact and thus save further trouble and obviate future expense.

In carndng out the provisions of §1255, the coroner must act within the limits of a sound discretion; and he is presiuned to do so, until the contrary appears. And under the evidence in this case, the judge of the superior court could properly have overruled the certiorari upon this ground; because, in the state of the evidence introduced in the trial in the justice’s court, there was nothing to rebut the presumption that this officer had acted in good faith and on sufficient cause. Clark County v. Calloway, 52 Ark. 361 (12 S. W. 56); Boislinere v. County Comm’rs, 32 Mo. 375. But in our opinion his decision rested upon even higher grounds. It is plainly apparent that it was the duty: of the coroner to act. “The object of a coroner is to seek information and to obtain and secure evidence in ease of death by violence or other unlawful means; and if there is reasonable ground to suspect that it was so caused, it becomes the duty of the coroner to act, especially when he has abundant cause to believe-that death was the'result of violence or that the deceased was feloniously destroyed.” 9 Cyc. 985, and cit. “It is the duty of the coroner to hold an inquest .over the body of a deceased person upon the receipt of information of the circumstances of his death which indicate that some one might be criminally liable; for, the killing being known, the presumption is that the slayer is guilty of a crime.” Jefferson County v. Cook, 65 Ark. 557 (47 S. W. 562). A coroner should not be deterred from the performance of his duty because of the difficulty of its performance.

Judgment affirmed.


author: Powell, J.

text:
    736.
    GOBER et al. v. BARRY, constable, for use, etc.
    Even if in any ease a separate suit may be maintained upon a replevy bond executed as a part of tlie defense to.a distress warrant, under Civil Code, §4819, no recovery can be had unless it appears that the rent action has terminated by a judgment in favor of the landlord.
    Certiorari, from Haralson superior court — Judge Edwards. July 22, 1907.
    Submitted December 11, 1907,
    Decided March 16, 1908.

      Janes & Hutchens, for plaintiff in error.

      Griffith, Weatherly & Mathews, contra.
   Powell, J.

This ease is a veritable example of “confusion, worse confounded;” but most of its intricacy arises from the attempt to bring into it issues of another case which reached a very illogical result. This action began by Barry, constable, for the use of Mrs. Williams, causing a summons to issue from the justice’s court of the 1078th district, G. M., requiring Gober, principal, and Wood, security, to appear upon a named day at “Wild Cat Court House” in Haralson county, to answer an action on a replevy bond by them executed, the condition of which was that Gober should pay the eventual condemnation-money and costs recovered by Mrs. Williams on a proceeding for rent, begun by her by distress warrant against Gober. The defendants appeared and pleaded, that the bond had.not been broken; that Mrs. Williams had not recovered in her action; but, on the contrary, that 'case had resulted in a judgment for the defendant. We may note in passing that the justice of the peace stated in his answer that he construed this to be a “plea of general issue and statute of limitations.” We will not lead the reader through all the mazes of entanglement which the record discloses (though a presentation of some of the things that happened might provoke many a smile from those who have had the privilege of getting their first legal training in justice’s courts), but will only state so much as is immediately necessary to the decision of the question now present. On the trial of the suit begun as above stated, the plaintiff showed the bond sued on. It was in the usual form of replevy bonds taken under distress warrants, and recited that the defendant had filed counter-affidavit. The constable then testified that no counter-affidavit was tendered with the bond, but that the defendant filed what purported to be a counter-affidavit with the notary public who had issued the distress warrant; that the notary public in turn handed the papers to the justice of the peace of the district, who, at the first term, not in the “Wild Cat” court-house, but at -a point in the “big road,” about 50 yards away, without the presence of parties and without hearing any evidence, gave judgment for the defendant. What purports to be the counter-affidavit of the defendant is sui generis, and is probably subject to the criticism of the constable that it amounted to no counter-affidavit at all. The justice, on the trial of the suit we are now considering — the action on the bond, after hearing the evidence, dismissed the plaintiff’s action; a judgment equivalent under the circumstances to the grant of a nonsuit. The plaintiff brought the matter, by certiorari, to the superior court, and upon the hearing there the certiorari was sustained and a new trial ordered; and to this judgment the defendant brings error.

A distress warrant is final process until arrested by counter-affidavit and replevy bond. If the levying officer releases the property without taking the affidavit and bond he does so at peril of being held liable by the plaintiff for the amount of the rent or the value of the property. No issue arises between the plaintiff and the defendant until the distress proceedings are arrested in the manner prescribed by the statute. No liability attaches to the bond until that issue is disposed of adversely to the defendant; the liability is solely dependent upon the result of that issue, and not upon the distress warrant, which is rendered functus by the creation of that issue. Willis v. Bivins, 76 Ga. 745; Griggs v. Willbanks, 96 Ga. 744 (22 S. E. 327), and cases cited.' If the plaintiff recovers in the suit thus arising, judgment is entered at one and the same time against both main defendant and the surety on the replevy bond; and no separate suit on the bond is necessary. McNeil v. Harker, 40 Ga. 26. Indeed, since the surety for the eventual condemnation-money is so far a party to the original action that judgment may go immediately against him, or, if his name is omitted from the original judgment, it may be inserted therein by an entry nunc pro tunc (cf. Stewart v. Hall, 106 Ga. 172 (32 S. E. 14), and cit.; Scott v. Bedell, 108 Ga. 205, 210 (33 S. E. 903)), it would seem to follow that no separate suit on the bond is permissible; for to such a suit a plea of former judgment, if judgment had been rendered, or the pendency of a prior action, if judgment had not been entered, would lie. Except in those instances where the case has reached an indecisive end and may therefore be renewed, a defendant is not to be harassed by more than one suit on the same cause of action. In the case at bar, however,'the action of the magistrate in dismissing the suit on the bond was in any event the only proper judgment, and the judge of the superior court erred in sustaining the certiorari and in remanding the case for further trial. Under this proceeding neither this court nor the superior court, nor the justice’s court in which the case originated, has any jurisdiction to right any wrongs or irregularities that may have come about in the proceeding begun by the distress warrant. Judgment reversed.


author: Hill, C. J.

text:
    766.
    SEABOARD AIR-LINE RAILWAY v. SIKES et al.

    1. “A navigable stream is one capable of bearing upon its bosom, either for the whole or a part of the year, boats loaded with freight in the regular course of trade. The mere rafting of timber, or transporting wood in small boats, does not make a stream navigable.” Applying this definition to the evidence, the Canoochee river in this State is not a navigable stream.
    2. The right of the public to use watercourses as highways is restricted, in this State, to such as are navigable.
    3. The owner of land is entitled to the free and exclusive enjoyment of all watercourses not navigable flowing over his land; but this right may become subject to a public servitude by acquiescence and use sufficient to show a prescription.
    4. A right acquired by the public to use a watercourse not navigable may be lost by a discontinuance of such use for a time sufficient to justify an inference of abandonment.
    5. A corporation is not bound by a declaration of an agent made outside the scope of his agency.
    6. The trial court should not undertake to state specifically the contentions of one party, without, in like manner', stating the corresponding contentions of the other party.
    Action for damages, from city court of Reidsville — Judge Morgan. August 31, 1907.
    Argued December 17, 1907.
    Decided March 16, 1908.

      Bason & Bull, Kelley & Smith, for plaintiff in error.

      Robert B. DeLoach, W. T. Burhhalter, contra.
   Hill, C. J.

Sikes and others brought suit against the Seaboard Air-Line Railway to recover damages resulting to them from the erection of a bridge across the Canoochee river. They allege that the Canoochee river is a navigable stream which the public has the right to use as a highway, and that the river has been in fact used by the public for the purpose of drifting and floating lumber, timber, and logs to market so long that “the memory of man runneth not to the contrary;” and they assert that the public has 'therefore acquired a right by prescription to such use of the river. The Seaboard Air-Line Railway erected a bridge across the river, which it is asserted prevents the enjoyment of this right, by obstructing the passage of rafts, the arches supporting the bridge over the river being too narrow to permit rafts to pass between them. They base their claim for damages in the present suit on the following facts: They had information that the railway, in erecting the bridge over the river, had constructed it so as not to interfere' with the use of the river as a commercial highway for floating rafts of lumber and logs. Retying upon this information they prepared a raft of logs containing 700 pieces of stick timber; placed this raft in the river some ten miles above the bridge in question, and floated it down to the bridge, when it was discovered that the raft could not pass between the arches, and they were compelled to go to heavy expense in taking the raft to pieces in order to get the logs through. The jury found a verdict in favor of the plaintiffs, and the defendant’s motion for a new trial was overruled.

The undisputed evidence shows that the Canoochee river is a small, crooked stream, incapable of floating freight or passenger boats, and “only used for rafting timber and fishing.” In its ordinary condition it is incapable of floating rafts, and only when the volume of water is increased by rains can it be so used. This use has not been constant or continuous during this period, bur sometimes has been discontinued for several years. The owners of the land adjacent to the river have never interrupted or objected to such use. The river, where this bridge crosses, is from 75 to 100 feet wide, and the bridge is located on the right of way of the railway, and the space between the arches supporting the bridge across the river is from sixteen to seventeen feet wide. This general statement of the evidence is sufficient to illustrate the questions of law involved.

The controlling question in the ease is, what are the rights of the public or of individuals to use watercourses as highways? The right to use watercourses as highways is analogous to the right to use public highways upon the land. This statement applies to those waters that are navigable. From the very earliest times, .both in this country and in England, it has been recognized that .the citizens have an inherent right to use as highways all navigable rivers; and this right of navigation extends to the entire surface of the water from bank to bank. In determining what is a navigable stream it is unnecessary to consult the text-writers from the De Jure Maris of Lord Hale to Gould on Waters, or'the numerous decisions of the courts. Section 3059 of the Civil Code of 1895 gives a clear and explicit definition: “A navigable stream is one capable of bearing upon its bosom, either for the whole or a part of the year, boats loaded with freight -in regular course of trade. The mere rafting of timber, or transporting wood in small boats, does not make a stream navigable.” The test by which to determine the navigability of a particular river in this State is found in the navigable capacity measured by the essentials of this definition. Applying this test to the Canoochee river, it is perfectly clear that it is not a navigable stream. It is incapable of bearing upon its bosom at any time any sort of boat loaded with freight or passengers, and is capable of rafting logs or timber only when its' waters are swollen by rains. The evidence eliminates from the case, as an issue, the question of its navigability.

It has been frequently held that although a river may not be navigable in a strict legal sense, so as to import general public servitude, yet, if in its natural state it is capable of floating to market logs and other products of the forest, the public has an easement in the use of the water for that purpose. In 4 Amer. & Eng. Enc. Law (2d ed.), 709, it is broadly stated that “The general public has an easement of floating logs down any stream which is capable of floating them.” A large number of cases- are citéd in the notes, in support of the text. “The public has a right to float logs on streams which in their natural state are capable of being so used, or on streams capable of floating logs at some seasons every year.” 25 Cyc. 1566, notes 7 and 8; 33 Century Digest, title Logs and Logging, §29; Brooks v. Cedar Brook Co., 82 Me. 17 (19 Atl. 87, 7 L. R. A. 460, 17 Am. St. Rep. 459). In Morgan v. King, 35 N. Y. 459 (91 Am. D. 58), it is declared, that “The true rule is that the public have a right of way in every stream which is capable, in its natural state and its ordinary volume of water, of transporting, in a condition for the market, the product of the forests, upon its banks. It is not essential to the right that the property to be transported should be carried in vessels, provided it can ordinarily be carried safely without such guidance. . . If it is so far navigable or floatable as to be of public use in the transportation of property, the pirblic claim to such use ought to be liberally supported.” In this State, under our code, this public right of floatage or raftage exists only in streams that are navigable. The title to streams not navigable is in the owner of the land through which such streams run. And as- owner of the stream, he is entitled to the same exclusive possession thereof as he has of any other part of his land. Civil Code, §§3061, 3879.

Unquestionably non-navigable streams may become subject to public servitude by long use. A right of way through land may be acquired by prescription, and there is no difference in principle in the acquisition of a right of way over the water in streams. Any incorporeal right that can be lawfully granted can be lawfully acquired by use. Civil Code, §§3590, 3591. Bracton says that all incorporeal rights or services may be acquired by acquiescence and use. 4 Bracton, chap. 38, §3. According to the common law, to constitute a prescription, the enjoyment must have existed time out of mind, or, in legal phrase, “during time whereof the memory of man runneth not to the contrary.” And, according to Blackstone, “time of memory” commenced from the reign of Richard I. 1 Bl. Com. 75; 2 Id. 263. By the modern rule, the period of use necessary to constitute a prescription has been limited to twenty years. Lord Ellenborough, in Bealy v. Shaw, 6 East, 208, uses this language, “The general rule of law, as applied to this subject, is, that every man has a right to have the advantage of a flow of water in his own land without diminution or alteration, but an adverse right may exist, founded on the occupation of another. I take it, that twenty years exclusive enjoyment of the water, in any particular manner; affords a conclusive presumption of right in the party so enjoying it.” The case of Shaw v. Crawford, 10 Johns. (N. Y.) 236, is in point. Battenkill river, although not navigable according to the statute, had been used by the public for rafting for twenty-six years. The court held that such usage had created a public right, and that an action would lie against the owner of a mill-dam for obstructing the river so as to injure a raft in passing over. Under the principle of section 3591 of the Civil Code, we think the owner of a stream not navigable in the strict legal sense can, by his acts of acquiescence, allow the same to be used by the public in floating logs to market for such a length of time as to give a right to such use.

The court, in the instant case, charged the jury that “if the right to drift their timber and logs down the stream in question had been enjoyed by the public without interruption or obstruction for over twenty years by the adjacent landowners, then the plaintiffs, in common with the public, would have acquired the right to so use the river, and any infraction of such right by which they were damaged would give them a cause of action.” The court also charged, “If you find that the public has acquired a prescriptive right to the use of the river for the purpose of drifting timber, that right would not become forfeited or lost because the public ceased for the time to use this stream for the purpose of drifting timber, on account of low prices, or for any other reason, unless the public expressly abandoned that right.” We think the latter part of this charge is clearly erroneous. This right of user, to ripen into a prescription, must be continuous and uninterrupted; and even where it has been acquired by acquiescence, it can be lost by neglect or disuse. Angelí, Law of Watercourses, §201. Section 3068 of the Civil Code, declares that “An easement may be lost by abandonment, or forfeited by non-user, if the abandonment or non-user continue for a term sufficient to raise the presumption of release or abandonment.” If the public, after having acquired the right, ceased for a sufficient length of time to authorize the inference that such right was abandoned, this would be sufficient, without any express declaration on the subject. Indeed, we do not see how or in what manner the public could expressly abandon the right. It would be a question for a jury, under all the facts, to determine whether such right, once acquired by continuous use, was subsequently abandoned by non-use. The right of way which the public may have acquired by long use over private property is not exclusive of the right of the owner of such property. If in this case the evidence established the fact that the public had acquired the right to use the water of the river for the purpose of floating logs to market, such right did not prevent the owner of the stream from conveying to the railway company a right of way across the stream. The right of the railway, having been expressly acquired from the owners of the stream, is equal to the right of the public, acquired by usage, to float logs down the river. This conflict of rights must be, if possible, reconciled. In the erection of its bridge across the stream, the railway should be required to do so in such manner as to leave a sufficient passage under the bridge for the drifting of rafts of logs; and the owners of logs are not entitled to the exclusive use of the surface of the river from bank to bank, but only to enough space to enable them to get through conveniently and safely. What would be a fair and reasonable adjustment of these relative rights is a question for the jury.

The plaintiffs contend in this instance that they had been led to make their rafts of the width that they were made, by. statements of certain agents of the railway company that the space between the arches of said bridge would be 24 feet wide, and would be sufficient to admit the passage of rafts of said width. These declarations were made hy agents of the railway company who had no connection with the erection of the bridge, and were objected to as inadmissible to bind the principal. We think these declarations were inadmissible and were prejudicial to the defendant, and especially so because the court, in his charge to the jury, referred to such declarations and treated them as binding upon the railway. These declarations simply amounted to loose statements of certain agents of the defendant who were in no manner connected with the construction of the bridge in question, and were clearly beyond the scope of their agency.

It is insisted that the court erred in his charge, in that he gave in full and in detail the contentions of the plaintiffs and the grounds upon which they based their right to recover, and failed to give in the same manner the corresponding grounds of defendant’s contentions, but stated generally that the defendant denied the truth of the plaintiff’s contentions. It is well settled that in all cases, in stating the contentions of the parties, the contentions of 'each should' be alike fairly stated. Rouse v. State, 2 Ga. App. 184 (58 S. E. 416). The court specifically charged the contentions of the plaintiffs that the Canoochee river was navigable, and therefore a public highway; that the plaintiffs, in common with the public, had acquired by long use the right to use the river to float rafts of timber to market, and that this right had not been abandoned. The corresponding contentions of the defendant, that the Canoochee river was not a navigable stream, and therefore not a public commercial highway,'and that the public had never used the river continuously to float rafts of logs for such a length of time as to establish any prescriptive right, and the railway company had constructed said bridge in such manner as not to interfere with or obstruct any reasonable use of the river by the public or by the plaintiffs as a part of the public, should also have been specifically given in charge.

We think a new trial should be granted in this case, because of errors set out in the 4th, 5th, and 6th divisions of this opinion.

Judgment reversed.


text:
    769.
    Sparks v. Bedford.
    Action for, slander, from city court of Atlanta — Judge Calhoun. July 13, 1907.
    Argued December 17, 1907,
    Decided March 16, 1908.

      W. A. James, for plaintiff in error.

      T. J. Ripley, R. R. Shropshire, contra.
   Hill, C. J.

1. To publicly call a young white woman “a Decatur street whore” is actionable. Malice and damage will be inferred. Civil Code, § 3837; Pledger v. Hathcock, 1 Ga. 550.

2. It was not error to charge the jury that a witness could be impeached by proof of general bad “moral” character. The use of the word “moral” was neither restrictive nor misleading. General bad character, as a ground of impeachment, refers to general bad. moral character, the word “moral” being used in its broadest sense.

3. Newly discovered evidence which is merely cumulative and impeaching is not ground for new trial.

4. No material error of law appears, and the verdict was fully warranted by the evidence. Judgment affirmed.