text:
    18477.
    INDUSTRIAL ACCEPTANCE CORPORATION v. PERRY.
    Where an automobile was sold in Elorida under a conditional bill of sale which reserved title in the seller as security for payment of purchase-money, and the automobile was afterwards brought into this State and was here sold to a third person, who bought in good faith, for value and without actual notice of the claim of the original seller, and the original seller, within six months from the time when the automobile was brought into this State, brought trover to recover the property from the last purchaser, and the petition was served on the defendant within that time, notice by record of the bill of sale within the six months fixed by law for recording was not necessary, to preserve the rights of the original seller as against the last purchaser. The court which tried the case upon an agreed statement of facts erred in rendering judgment for the defendant.

      Sales, 35 Oye. p. 680, n. 7; p. 687, n.'49.

      Decided December 13, 1927.
    Complaint in trover; from city coart of Savannah—Judge Freeman. September 3, 1927.

      Albert L. Cobb, for plaintiff.

      Stephens & Stephens, for defendant.
   Luke, J.

On December 12, 1926, in the State of Florida, Industrial Acceptance Corporation sold an automobile under a conditional bill of sale retaining title to the property. On January 10, 1927, the automobile was brought into Chatham county, Georgia, and since that time it has remained in that county. On January 24, 1927, Perry purchased the automobile in good faith, for value, and without actual notice of the claim of the original seller under its conditional bill of sale. On May 3, 1927, Industrial Acceptance Corporation brought trover for the automobile, and a copy of the petition was duly served on the defendant, the purchaser from the grantee in the conditional bill of sale. The bill of sale was not recorded in Chatham county, Georgia, within six months from the time it was brought into this State, or at any other time so far as the record discloses. Upon the agreed statement of facts the court rendered a judgment for the defendant. Under the rule laid down in the case of Hubbard v. Andrews, 76 Ga. 177 (2), the bringing of the trover action, and the serving of a copy of the petition upon the defendant within the six months period fixed by law for recording the conditional bill of sale, dispensed with the necessity of giving record notice of the existence of the bill of sale, and the judgment for the defendant was error. See also Peterson v. Kaigler, 78 Ga. 464 (3 S. E. 655), and Armitage-Herschell Co. v. Muscogee Real Estate Co., 119 Ga. 552 (46 S. E. 634).

Judgment reversed.

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


source: Caselaw Access Project

author: Bloodwobth, J.

license: Public Domain

text:
    18481.
    King v. The State.
    Criminal Law, 16 C. J. p. 764, n. 54; p. 766, n. 78; p. 1179, n. 67.
    Intoxicating Liquors, 33 C. J. p. 762, n. 54, 55.
    Decided December 13, 1927.
    Possessing liquor; from city court of Albany—Judge Clayton Jones. August 4, 1927.
    The State’s witness, a policeman, testified, that he saw King, the defendant, coming from down the river in the city of Albany, wearing overalls, and with his hand stuck in front of them, as if he had something in the front of the overalls like a bottle of whisky which was produced on the trial (a quart glass jug, a little more than half full). The defendant went down to the river and out of sight of the witness. The witness hailed him and he started to run, but stopped, and the witness searched him and questioned him about what he was doing there, and was told that he was looking for a chicken belonging to his mother-in-law, who lived near by. The defendant had an empty bottle in his pocket, but there was no odor of whisky in it. His clothes smelled of whisky, and it appeared to the witness that whisky had been spilled on the defendant’s clothing. He was allowed to- proceed on his way and the witness returned to the river, and, while standing there, saw “the bottle,” a little more than half full of whisky and without a stopper in it, come floating up from under a dredge-boat. The boat was something like twenty feet wide by fifty feet long and probably drew from one to two feet of water, and as it was heading up and down the stream the bottle floated out from it the long way. Men on that boat and other boats said that they did not see the defendant throw the bottle in the river. Some hours later the witness found the defendant at a picture show and arrested him. The bottle was unusually heavy for a glass bottle, and resembled “the vinegar variety of glass jugs:” The defendant, in his statement at the trial, denied that lie had whisky at the timé mentioned, and said that he was engaged in bill posting and sometimes got paste on his overalls, and it would sour and have some odor.
   Bloodwobth, J.

“The verdict in this case is dependent entirely on circumstantial evidence. The proved facts are consistent with innocence, and are insufficient to exclude every reasonable hypothesis save that of the guilt of the accused. Suspicion of guilt will not authorize a conviction. Penal Code (1910), § 1010; Williams v. State, 113 Ga. 721 (39 S. E. 487). It was error to refuse a new trial.” Henderson v. State, 147 Ga. 134 (2) (92 S. E. 871).

Judgment reversed.

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

Cowart & Durden, for plaintiff in error, cited Ga. App. Rep.: 15/423 (bot.), 425; 13/144; 12/816-17; 2/534; 12/111; 17/730; 23/9, 141, 463; 25/427; 27/582.; 28/625; 29/388; 30/61; 32/427; 33/678; 34/590.

R. R. L. Spence Jr., solicitor, contra, cited Ga. App. R.: 3/518; 23/760.


author: Broyles, C. J.

text:
    18482.
    Floyd, administratrix, v. Floyd, administrator.
    Appeal and Error, 3 C. J. p. 952, n. 24.
    Executors and Administrators, 24 C. J. p. 1000, n. 54.
    Decided December 13, 1927.
    Appeal; fr.om Bulloch superior court—Judge Strange. August 15, 1927.
    This case arose on a temporary administrator’s petition to the court of ordinary for discharge from his trust. The petition as amended' alleges, that Mrs. Ethel M. Floyd has been appointed and has qualified as the permanent administratrix on the estate of F. F. Floyd, deceased, of which the petitioner is temporary administrator; that as temporary administrator he collected the personal property of the estate, such as jewelry, books, and other such property, and executed proofs upon seven insurance policies, and collected the proceeds, amounting to $24,271.85, and turned over the same to the said permanent administratrix; that he turned over to her all assets and property of the estate, and she gave him a receipt (a copy of which was attached to the petition) for specified property, but refused to give him a receipt in full and complete settlement; that her refusal to do this was without good or sufficient reason; that, waiving all compensation, for collecting and protecting the property of the estate except the $24,271.85 mentioned above, he should receive on that sum at least 2-1/2 per cent., amounting to $605.78, as a minimum and reasonable compensation for giving bond, collecting and preserving the property of the estate, and delivering it to the permanent administratrix. The permanent administratrix, in her answer, denied that she was withholding without reason a receipt in full, and admitted that the plaintiff was entitled to “some small amount of compensation as temporary administrator, in proportion to the service rendered, which service [she alleged] consisted in the signing of two proofs of claim on life-insurance policies, which proofs were prepared by other persons, and endorsing and depositing in banks the checks for said insurance.” She prayed that the court would fix the amount of compensation properly due for the petitioner’s services as temporary administrator, with direction that it be credited on his indebtedness to the estate. On appeal, in the superior court, the permanent administratrix moved to dismiss the petition, because the court of ordinary .was without jurisdiction of a controversy between administrators as to a proper division of commissions, and the movant cited in support of this contention the case of Groover v. Ash, 132 Ga. 374. This motion was overruled, and in the bill of exceptions error is assigned on the ruling. The court, after hearing evidence, held that the temporary administrator was “entitled to the same compensation for handling and receiving money belonging to ihe estate that a permanent administrator would be,” and that “the question of fixing fees where two administrators have been appointed and are acting as such is not involved in this case,” and adjudged that the temporary administrator recover 2-1/2 per cent., amounting to $605.78, on the amount received, “as provided by law for administrators,” the court being of the opinion that “the court has no legal right or authority to fix said fees at any other amount.” The permanent administratrix assigned error on this judgment.
   Broyles, C. J.

1. Tlie bill of exceptions contains two assignments of error, the first upon the judgment overruling the defendant’s motion to dismiss the petition, and the second upon the final judgment of the court (sitting without a jury) in favor of the plaintiff. The first assignment of error was not preserved by exceptions pendente lite, and the judgment excepted to was rendered on August 3, 1927, while the bill of exceptions was not tendered to the judge until September 3, 1927. It follows that the first assignment of error can not be considered by this court. ,

2. Under all the facts of the case as disclosed by the record, the judgment in favor of the plaintiff was not error for any reason assigned. This case Was not a controversy between coadministrators as to a division of their commissions, and the decision in Groover v. Ash, 132 Ga. 371 (64 S. E. 323, 22 L. R. A. (N. S.) 1119, 131 Am. St. R. 201), is not

applicable. Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Hinton Booth, for plaintiff in error.

Howell Gone, Deal & Renfroe, contra.


author: Bboyi.es, C. J.

text:
    18484.
    Hawkins v. The State.
    Criminal Daw, 16 C. J. p. 896, n. 85; p. 897, n. 86; 17 C. J. p. 267, n. 93.
    Intoxicating Diquors, 33 C. J. p. 762, n. 61.
    Decided December 13, 1927.
    Possessing liquor; from Hall superior court—Judge I. H. Sutton. September 6, 1927.

      B. P. Gaillard Jr., for plaintiff in error.

      Robert McMillan, solicitor-general, E. D. Kenyon, contra.
   Bboyi.es, C. J.

1. Although' the evidence connecting the accused with the offense charged was wholly circumstantial, this court can not hold that it was insufficient to. authorize the jury to find that it excluded every reasonable hypothesis save that of his guilt.

2. The denial of the defendant’s motion for a mistrial, based upon alleged improper remarks of the solicitor-general in his argument to the jury, was not an abuse of the court’s discretion. The defendant was being tried for possessing whisky, and the evidence authorized the jury to find that on the date alleged in the indictment he was in possession of 240 gallons of whisky. The remarks objected to were: “Gentlemen of the jury, you have the big boy there and the fountain ■ source of this • business.” This statement by the solicitor-general was clearly a deduction drawn from the evidence and one which he had a right to draw. “While counsel should not be permitted in argument to state facts which are not in evidence, it is permissible to draw deductions from the evidence; and the fact that the deductions may be illogical, unreasonable, or even absurd, is matter for reply by adverse counsel, and not for rebuke by the court.” Owens v. State, 120 Ga. 209 (3) (47 S. E. 545); Pullen v. State, 30 Ga. App. 24 (3) (116 S. E. 871), and cit. The two cases cited by counsel for the plaintiff in error are distinguished from the instant case in that in those eases the remarks complained of were not authorized by any evidence whatsoever nor by any inferences or deductions therefrom.

3. The refusal to grant a new trial was not error.

Judgment affirmed.

Luhe amd Bloodworth, JJ., concur.


author: Luke, J.

text:
    18487.
    Morris v. The State.
    Homicide, 30 C. J. p. 318, n. 96; p. 356, n. 90.
    Decided December 13, 1927.
    Assault with, intent to murder; from Haralson superior court— Judge Edwards. September 5, 1937.

      M. J. Head, for plaintiff in error.

      S. W. Ragsdale, solicitor-general, contra.
   Luke, J.

There was an abundance „of evidence to support the conviction.

All the special grounds of the motion ■ attack the charge of the court, and all are without merit. The charge was adapted to the issues involved. The court properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, O. J., cmd Bloodworth, J., ooneur.


author: Bloodworth, J.

text:
    18488.
    Dixon v. The State.
    Criminal Law, 17 C. J. p. 272, n. 43.
    Decided December 13, 1927.
    Cheating and swindling; from Laurens superior court—Judge Camp. September 17, 1937.

      E. L. Stephens, T. E. Hightower, for plaintiff in error.

      Fred Kea, solicitor-general, contra.
   Bloodworth, J.

While there are some special grounds of the motion for a new trial, with subdivisions, the only thing argued by counsel for the plaintiff in error is that the verdict is not supported by the evidence. There is no general insistence on all the grounds of the motion. The jury has settled the issues of fact in favor of the State; their finding has been approved by the judge who tried the case, and this court will not interfere.

Judgment affirmed.

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


text:
    18489.
    Driscol v. The State.
    Criminal Law, 16 C. J. p. 1217, n. 45.
    Decided December 13, 1927.
    Larceny of hog; from Laurens superior court—Judge Camp. September 3, 1937.
   Broyles, C. J.

The evidence authorized the verdict, and the motion for a new trial contained the usual general grounds only.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

E. L. Stephens, Stephens & Kea,, for plaintiff in error.

Fred Kea,, solicitor-general, contra.


text:
    18490.
    JOINER v. STATE.
    Where an indictment charges seduction “by persuasion and promises of marriage” alone, and the court, after charging section 378 of the Penal Code (1910) in full, thus injecting into the case seduction by “other false and fraudulent means,” repeatedly so instructs the jury as to indicate that the defendant is being tried for seduction accomplished by “other false and fraudulent means,” as well as “by persuasion and promises of marriage,” without anywhere charging in effect that the State relied for a conviction upon proof by persuasion and promises of marriage only, this court can not say that the jury were not confused or misled by the court’s instructions, and a new trial must be granted.
    Seduction, 35 Oye. p. 1367, n. 11.
    Decided December 13, 1927.
    Seduction; from Laurens superior court—Judge Camp. September 17, 1927.

      E. L. Stephens, T. E. Hightower, for plaintiff in error.

      Fred Kea, solicitor-general, contra.
   Luke, J.

Claud James Joiner was convicted of seduction under an indictment containing two counts. . Tbe first count charged seduction “by persuasions and promises of marriage.” The second count charges that after marrying Miss Wood on January 2, 1927, to stop his prosecution for seduction, defendant deserted and abandoned her without giving bond for the maintenance and support of her and the child, and that he has since failed and refused either to give said bond or to live with said Miss Wood. The jury found the defendant guilty, and fixed his sentence at a minimum of ten and a maximum of twelve years. In his motion for a new trial he assigns error upon several special grounds, as well as upon the usual general grounds.

The indictment charges seduction “by persuasions and by promises of marriage” alone. Section 378 of the Penal Code (1910) reads: “If any person shall, by persuasion and promises of marriage or other false and fraudulent means, seduce a virtuous unmarried female,” etc. Ground 7 complains that the court erred in charging the foregoing section in full when the indictment did not charge seduction by “other false and fraudulent means,” •without instructing the jury that the State relied for conviction upon proof that the seduction was had by persuasion and promises of marriage. Ground 8 is to the same effect, error being alleged on the following excerpt from the charge: “To make out a case of seduction there must be persuasion and promises of marriage, or other false and fraudulent means.” Another special ground (not numbered) raises the same question presented in grounds 7 and 8.

In Jones v. State, 90 Ga. 616 (16 S. E. 380), the judge charged the jury as follows: “The charge made in the bill of indictment is, that this woman was seduced by persuasion and promises of marriage; ‘other false and fraudulent means' are left out. The State relies for conviction upon the proof of persuasion and promises of marriage—seduction by these means.” In the decision (p. 628) the court held: “It is true the indictment alleged the seduction was accomplished only by persuasion and promises of marriage, and did not charge that any other false and fraudulent means were used by the accused; but the court took pains to instruct the jury, and distinctly explained to them, that the State relied for conviction upon proof of the latter alone.” In passing upon a certified question from this court, the Supreme Court held in Thomas v. State, 146 Ga. 346 (3) (91 S. E. 109) : “In answer to the third question propounded by the Court of Appeals, it was not reversible error, on the trial of one under an indictment charging him with the commission of the crime of seduction by ‘persuasion and promises of marriage only,’ for the court to give the jury the full definition of the crime of seduction as contained in the Penal Code, § 378, including the accomplishment of that crime, not only by ‘persuasion and promises of marriage,’ but also by ‘other false and fraudulent means,’ where the court subsequently instructed the'jury, without specially retracting or explaining anything contained in the above instruction, in effect that the State relied for conviction upon proof of persuasion and promises of marriage.” We think it is deducible from the foregoing decisions, as well as from well-recognized rules of criminal jurisprudence, that the trial should not be broader than the indictment, and that where the seduction is charged “by persuasion and promises of marriage” only, the court should not even read to the jury that portion of section 378 which contains the words “or other false and fraudulent means,” without somewhere apprising them of the fact that the State relied for conviction upon proof of persuasion and promises of marriage only.

While the court charged more than once upon seduction by persuasion and promises of marriage without using the phrase “or other false and fraudulent means/5 yet nowhere in the charge did he instruct the jury that the State relied for conviction -upon proof of persuasion and promises of marriage. Where, as in the case at bar, the court not only charged said code section fully, but repeatedly instructed the jury so as to indicate that the defendant was being tried for seduction by “other false and fraudulent means/5 as well as “by persuasion and promises of marriage/5 without anywhere charging in effect that the State relied for conviction upon proof of persuasion and promises of marriage only, we can not-say that the jury was not confused or misled by the court’s instructions. A new trial is awarded solely upon the grounds discussed.

Judgment reversed.

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


text:
    18491.
    ADAMS v. HILL, receiver.
    Although the evidence is set forth in the bill of exceptions, and the judge’s certificate thereto states that the bill of exceptions contains all' the evidence material to a clear understanding of the errors complained of, the judgment complained of, which was rendered in passing on •the facts on a trial without a jury, and of which a copy is sent up in the transcript of the record, shows on its face that in arriving at the judgment the court considered much evidence not set out in the bill of exceptions; and, there being no brief of evidence in the transcript of the record, and it being therefore impossible to determine whether there was error which would require or warrant a reversal of the judgment, there is no question legally before this court for adjudication.
    Decided December 13, 1927.
    Money-rule; from Madison superior court—Judge W. L. Hodges. September 6, 1927.

      G. E. Adams, for plaintiff.
    ' B. H. Gordon, Berry T. Moseley, Erwin, Erwin & Nix, for defendant.
   Bloodworth, J.

This was a money rule against the sheriff, involving priority of liens. The trial judge, acting without the intervention of a jury, rendered judgment against the plaintiff, and the plaintiff excepted. The defendants in error moved to dismiss the bill of exceptions, on the grounds that no brief of the evidence was sent up as required by the Civil Code (§§ 6140, 6141), and that there was no proper assignment of error. While the certificate of the trial judge specifies that the bill of exceptions “contains all of the evidence and specifies all of the record material to a clear understanding of the errors complained of,” the judgment of which complaint is made shows on its face that much evidence, of which this court has no brief, was considered by the judge in arriving at the judgment.

1. “Where there is a conflict between the bill of exceptions and the transcript of the record, the conflict must be determined by inspection of the transcript.” James v. Cooledge, 129 Ga. 860 (4) (60 S. E. 182).

2. “This being a direct bill of exceptions assigning as erroneous a judgment rendered by the trial judge without a jury, and certain rulings made by him during the trial; and the bill of exceptions neither containing nor purporting to contain all of the material evidence introduced at the trial, and no brief of the same having been made and approved by the judge so as to become a part of the record, the evidence has not been brought to this court in the manner prescribed by law, and can not be considered. The fact that the bill of exceptions sets forth, by recital and by exhibit, some of the material evidence, will not suffice.”

3. “All of the errors assigned necessarily involve a considera- ’ tion of the evidence, and it being impossible without reference thereto to determine whether there was error (if any at all) which would require or warrant a reversal of the judgment, there is no question legally before this court for adjudication.” Kirby v. Lippincott, 98 Ga. 426 (25 S. E. 267). See also Ingram v. Clarke, 96 Ga. 777 (22 S. E. 334), and cit.

Judgment affirmed.

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


text:
    18495.
    MOBLEY, superintendent, v. POWELL.
    1. The demurrer to the defendant’s answer, by which he attempted to set off against his note to the bank a half of the balance on a deposit account standing in the names of himself and another person, was properly overruled.
    Banks and Banking, 7 O. J. p. 746, n. 22.

      2. The court did not err in allowing the set-off claimed in defendant’s answer.
    Decided December 13, 1927.
    Complaint; from Colquitt superior court—Judge W. E. Thomas. July 22, 1927.

      Waldo DeLoache, Gardner, Gardner & Grow, for plaintiff.
   Bloodworth, J.

A. B. Mobley, as superintendent of banks of the State of Georgia, brought suit against J. L. D. Powell, alleging that the defendant was indebted to petitioner in the sum of $700, besides interest and attorney’s fees; said debt being evidenced by two promissory notes payable to the Citizens Bank of Moultrie and signed by J. L. D. Powell; that the assets of the Citizens Bank of Moultrie are in the petitioner’s charge for the purpose of liquidating’ its affairs; that the defendant refuses to pay said indebtedness; and that petitioner has given notice of his intention to bring suit and claim attorney’s fees. The notes attached to and made a part of the petition are in the usual form of promissory notes, one for $500, and one for $200, and are signed, “J. L. D. Powell (Seal).” On the back of the $200 note appears the following: “Dec. 2nd, 1926, offset $158.80.”

The defendant in his answer admitted'a prima facie case in the plaintiff, and that the plaintiff would be entitled to recover but for the following facts, which the defendant affirmatively pleaded: “that the Citizens Bank, on the day on which it closed its doors and ceased to do business and on which the plaintiff took charge thereof for liquidation, was, and continuously ever since said time has been and still is, indebted to this defendant in the sum of $1,306.15, which represents one half of the balance on a deposit account of $2,612.30, then and now standing on the books of said bank in the name and to the credit of this defendant and C. H. Powell, said one half of said deposit being the separate, several, and individual right and property of this defendant, and the other one half of said deposit likewise belonging to said C. EL Powell and being his separate, several, and individual right and property. . . Defendant says that the money representing said deposit arose out of and was deposited in said bank in the following circumstances: Defendant is the father of said C. EL Powell; they are all and the only stockholders in the Grand Theatre Company, a corporation,—defendant and C. EL Powell each owning one half the shares of its capital stock,—which company had carried its deposit and checking account with said bank and maintained such account at the time the bank closed, and each also maintained an individual deposit or checking account in his respective name with said bank. As said corporation earned dividends and accumulated profits sufficient to be paid the stockholders, and as the stockholders would direct such earnings to be paid out and disbursed to its stockholders, said C. H. Powell would from time to time withdraw and separate said dividends or earnings from the other funds or money of said corporation by issuing the corporation’s checks therefor, and would deposit the same to the account or credit of C. Ii. and J. L. D. Powell. Said earnings or dividends so paid out and deposited in said account in favor of C. H. and J. L. D. Powell then belonged and now belong to this defendant and C. H. Powell in equal portions or shares, each being the owner of one half of said stock, and said deposit representing money which had already been separated from and paid out by said corporation to them and which was deposited in said account for convenience only and'to keep it separated from the deposits of other moneys derived from other sources. This defendant further shows.that all withdrawals of money from said account both to him and to said C. H. Powell were made at the same time and in equal amounts to each of them, so that the interest or right of each in and to said deposit has at all times remained and now remains the same; and so that this defendant has at all times owned and now owns one half the money represented by said deposit of $2,612.30. ’ Defendant further avers that neither is there now, nor has there ever been, any partnership or partnership relationship between him and said C. H. Powell; that there is no joint relationship of any character; that they are not now nor have they ever been jointly interested or connected in any business, enterprise, industry, or promotion of any kind or character whatsoever; that such deposit represents no joint investment or venture, nor had it ever been used, nor had they ever intended to use the same, in any joint business, venture, or investment; and that defendant and the said C. H. Powell have no joint interest in said deposit, but that said funds were so deposited in the name of C. H. and J. L. D. Powell for convenience in keeping said funds separate and distinct from their other respective individual accounts or deposits, and that there was no further or other purpose or concerted action in making such deposit. . . Defendant further shows that as required by the provisions of the banking act of 1919, he made due proof of his claim, based upon his interest in and ownership of one half of said deposit, and that the said C. H. Powell likewise made proof of his claim, based upon his interest in and ownership of one half of said deposit, within ninety days from the time when the superintendent of banks caused notice to be published for such claim to be presented; that the defendant also then and there claimed the right and made application to said bank and the plaintiff to have set of£, against the notes sued on and defendant’s liability thereon to said bank, a sufficient amount of his one half of said deposit to pay off and discharge said notes; that the said C. H. Powell also, in his proof of claim to his one half of said money, likewise recognized and, in writing and under oath, advised the plaintiff and said bank of this defendant’s right to and ownership of one half of said deposit and of defendant’s right to have such set-off allowed; and that the claim and right of this defendant in and to said deposit and to said set-off were supported by written affidavits of both the defendant and C. H. Powell duly filed with the plaintiff. . . Defendant further shows: On December 1, 1926, when he executed the note sued on for $500, which was in renewal of another note, he then advised the cashier of the Citizens Bank that he had in said bank on deposit in said account more than a sufficient amount of money to pay off the notes sued on, that he would pay the same, if the bank preferred to receive such payment rather than to renew the note, and that said bank advised this defendant that it would prefer to renew the note, and would not ask for payment of it at that time. . . The defendant shows that he is entitled to set off against his liability to the plaintiff on the notes sued on a sufficient amount of the money bwing to him by said bank, contained in and represented by said deposit, to pay off and discharge said note.” The defendant prayed that the set-off be allowed and that said notes be decreed and adjudged to be paid.

The plaintiff demurred to the defendant’s answer on the ground that “there is no matter of defense set up in said plea and answer, and the facts therein stated are not sufficient to eonstitute a defense or to entitle the defendant to the set-off claimed, said deposit not being owed to the defendant in his individual capacity.” The demurrer was overruled.

By agreement the ease was submitted to the presiding judge, to be decided at the first term and to be “passed on by the court, without the intervention of a jury, and upon the pleadings, both parties agreeing that the allegations of the petition and answer are true and shall be used as all the evidence.”

The judge held that the defendant was entitled to the set-off claimed in his answer, and entered judgment in his favor and against the plaintiff.

1. The demurrer was properly overruled.

2. The court did not err in allowing the set-off claimed in defendant’s answer.

Judgment affirmed.

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


text:
    18496.
    Douglas v. The State.
    Criminal Law, 16 C. J. p. 1179, n. 67.
    Intoxicating Liquors, 33 C. J. p. 762, n. 56; p. 777, n. 62.
    Decided December 13, 1927.
    Possessing liquor; from Terrell superior court—-Judge Yeomans. September 15, 1927.
    According to the evidence, a quart bottle and a gallon jug, each containing whisky, were found by an officer under the boards of the fioor in a toilet about á hundred yards from the house of Douglas, the defendant, and on his premises but not enclosed by a fence. The defendant and his family used the toilet. A witness for the defendant testified that Fred Williams, who, with himself, worked for the defendant and lodged and boarded at the defendant’s house, bought the whisky in question and put it under the boards in the toilet, and, so far as the witness knew, the defendant had no interest in the whiskey and knew nothing about it. The defendant, in his statement at the trial, said that he did not know that the whisky was on his premises and did not know anything about it.
   Bloodworth, J.

The evidence in this ease is consistent with the innocence of the accused, and that portion of it which connects him with the alleged crime is circumstantial and does not exclude every reasonable hypothesis save that of his guilt; and the judge who presided in the case erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, G. J., cmd Luke, J., concur.

E. A. Wilkinson, for plaintiff in error.

B. T. Oastellow, solicitor-general, R. R. Arnold, E. 0. Sill, contra.


text:
    18497.
    Brandon v. The State.
    Escape, 21 O. J. p. 835, n. 6; p. 839, n. 19.
    Statutes, 36 Cyc. p. 1183, n. 46.
    Decided December 13, 1927.
    Escape; from city court of Savannah—Judge Freeman. September 9, 1927.
    The indictment was for the escape of the defendant from the common jail óf Chatham county while confined under a sentence of the United States district court for an offense below the grade of a felony, to wit a violation of the national prohibition act.

      Ernest J. Eaar, W. E. Bédgood, Sheppard & Dukes, for plaintiff in error.

      Walter G. Eartridge, solicitor-general, Julian Eartridge, contra.
   Broyles, C. J.

1. Renal statutes must be strictly construed. Section 319 of the Renal Code of 1910, making it an offense for any person convicted of a misdemeanor to escape from a chain-gang or other place of imprisonment, refers only to persons convicted in State courts and not to those convicted in the Federal courts who may be imprisoned, under the authority of United States officials, in State jails. This is true notwithstanding the provision of section 1152 of the Penal Code of 1910 that if the keeper of a county jail receive as a prisoner a person convicted in a 'Federal court “it shall be under like penalties and sub- . ject to'the same action as in the case of prisoners committed under the authority of the State.” Section 1152 was codified from the act of the General Assembly approved November 12, 1889 (Ga. L. 1889, p. 47), and the last clause thereof refers solely to the duties and responsibilities of the keeper of a county jail in safely keeping and humanely treating such United States prisoners as may be received by him.

2. Under the above-stated rulings and the facts in the instant case the court erred in overruling the general demurrer to the accusation.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


author: Ltjke, J.

text:
    18498.
    Clark v. The State.
    Criminal Law, 16 O. J. p. 642, n. 31; 17 0. J. p. 332-, n. 64.
    Decided December 13, 1927.
    Making liquor; from Walker superior court—Judge Maddox. September 2, 1927.

      Henry & Jaclcson, Rosser & Shaw, for plaintiff in error.
    , J. F. Kelly, solicitor-general, M. Neil Andrews, contra.
   Ltjke, J.

In a prosecution for manufacturing whisky the solicitor-general asked a witness for the State: “Have you had information, or reported information, that the defendant is continuously engaged in the liquor traffic?” The witness answered, “Yes.” The corirt overruled a motion of the defendant’s counsel to exclude the evidence upon the ground that it was hearsay and irrelevant. Held: Such evidence was hearsay; and the judgment is reversed for this reason alone, it being unnecessary at this time to consider the other assignments of error.

Judgment reversed.

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


text:
    18499.
    CLARK v. THE STATE.
    1. The evidence was sufficient to sustain the verdict finding the accused guilty of possessing intoxicating liquor, and the court did not err in overruling the general grounds of the motion for a new trial.
    2. In the light of the certificate of the trial judge,, the excerpt from his charge, on the presumption as to possession of premises by a husband, as head of the family, does not warrant a reversal.
    Criminal Law, 17 0. J. p. 342, n. 90.
    Intoxicating Liquors, 33 C. J. p. 761, n. 53.
    Decided December 13, 1927.
    Possessing liquor; from Walker superior court—Judge Maddox. August 29, 1927.

      Henry & Jaclcson, Rosser & Shaw, for plaintiff in error.

      J. F. Kelly, solicitor-general, M. Neil Andrews, contra.
   Luke, J.

John 'Clark was convicted of possessing whisky, under an indictment.charging that offense alone. The motion for a new trial was based upon the general grounds, and upon á special assignment of error as to the judge’s charge.

Clark and his family lived on a farm containing ’ one hundred and ninety acres. On November 6, 1926, the sheriff, his deputy, and two others searched defendant’s house and premises for whisky. Tn the loft of the house were found about five bushels of meal and sugar estimated by different witnesses to be from one hundred to four hundred pounds, and two copper funnels, one of which one of the witnesses thought'smelled like liquor. No liquor was found in the house. Some cans in the smoke-house smelled like liquor. On the defendant’s farm in a pine thicket, from one hundred and fifty to three hundred yards east of his house, were found three ten-gallon kegs of whisky. On his place about three-quarters of a mile north of his house, near a branch, was found “an old still place,” where were some rocks and bricks. It looked as if a still had been there, but had been torn down. A witness thought it had not been long since the still had been in operation, could not tell how long. Some distance from the “still place” were found two boxes of about sixty to seventy-five gallons capacity each. There was no still, and there was no apparatus or appliance for making whisky. A path to the defendant’s house led from the “still place” by a spring located about one hundred yards from his house. According to the State’s witnesses, no other path led away from the “still place,” while a witness for the defendant testified that a path led in a northerly direction therefrom. A “thump barrel” was found in the branch below the spring. Some scrap copper, empty bottles, and an empty keg were found near the defendant’s hog-pen. The defendant denied any knowledge of the whisky found, and asserted his innocence. He stated also: “I was caught on that place on May 31, 1934, with a still. I then plead guilty, and served five month’s sentence.” There was evidence for the defendant that on the Thursday before the raid, which was on Saturday, four men, none of whom was defendant, were seen unloading whisky from a truck parked on the road east of and about two hundred and fifty yards from the defendant’s house, and that three of the men were carrying three kegs into the pine thicket east of the house; and that upon inquiry as to whether there had been a wreck, one of the men said, “No,” but that they were “looking for the law,” that they had had a time getting through with their liquor. Under the evidence we can not say that the jury were not authorized to find the defendant guilty. The court did not err in overruling the general grounds of the motion for a new trial.

The sole special ground of the motion for a new trial complains that the judge, toward the conclusion of his charge, and at the request of the solicitor-general; instructed the jury as follows: “The husband is the head of the family and is presumed by the law to be in possession of the premises. This" presumption is not conclusive, and may be rebutted by evidence, and everything found on the premises is presumed by the law to be in the possession of the husband. That presumption is not conclusive, but may be rebutted by evidence.” Under the facts of the case, nothing else appearing, this excerpt would be error requiring a reversal; but, in the light of the court’s certificate that he had “previously specifically charged the jury that there could be no conviction unless the defendant knowingly possessed the liquor,” this assignment of error is not meritorious.

Judgment affirmed.

Broyles, G.' J., concurs. Bloodworth, J., dissents.


text:
    18500.
    FOSTER v. THE STATE.
    A conviction of an attempt to manufacture intoxicating liquor was not authorized by the evidence.
    Criminal Daw, 16 C. J. p. 114, n. 20.
    Intoxicating Liquors, 33 C. J. p. 758, n. 81.
    Decided December 13, 1927.
    Attempt to make intoxicating liquor; from Chattooga superior court—Judge Maddox. September 19, 1927.

      John D. & F. S. Taylor, for plaintiff in error.

      J. F. Kelly, solicitor-general, M. Neil Andrews, contra.
   Bloodworth, J.

Plaintiff in error was indicted and tried for manufacturing intoxicating liquor. The jury found the accused guilty of attempting to manufacture intoxicating liquor. A new trial was refused and he excepted. On the trial it was shown that an officer saw the ,defendant “at a spring washing a copper still.” This was about 50 or 75 yards from where there were a “still furnace” and two barrels of beer. The beer was “working” and “was intoxicating.” The accused ran when he saw the officer. This officer testified: “I do not know whether this still John [the accused] was washing had ever been in that furnace or not. I do not know whether John had anything whatever to do with that beer up that path. I do not know whether John ever made any whisky or not. I do not know where he got the still he was in possession of ox what he was going to do with it. . . All I know is I saw John in possession of the still, and I do not know that it had any connection whatever with the manufacturing of whisky.” Under the foregoing facts the plaintiff in error could not have been legally convicted of attempting to manufacture the beer which at that time was intoxicating and which was at the still furnace. He is not shown to have had anything to do with the preparation of the beer; nor could he be legally convicted of attempting to manufacture liquor with the copper • still. Even if it was intended to use the still in manufacturing intoxicating liquor, his merely washing it, when from 50 to 75 yards away from the still furnace and the beer, shows nothing more than “an act merely preparatory to the commission of the crime,” and not an act “proximately leading to its consummation.” This act does not show an actual effort to carry the purpose of manufacturing intoxicating liquor into execution. It does not show any “overt act done towards the consummation of the attempt.” Moss v. State, 6 Ga. App. 524 (65 S. E. 300); Wilburn v. State, 22 Ga. App. 613, 615 (97 S. E. 87), and cit. See, in this connection, Leverett v. State, 20 Ga. App. 748 (93 S. E. 232).

As there is no evidence to support the verdict the court erred in overruling the motion for a new trial.

Judgment reversed.

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


author: Bloodworm:, J.

text:
    18503.
    Streetman, administratrix, v. Glover.
    Decided December 13, 1927.
    Complaint; from Forsyth superior court—Judge John S. Wood. August 23, 1927.

      G. W. Gain, Morris, Hcuwkins & Wallace, for plaintiff.

      J. P. Brooke, for defendant.
   Bloodworm:, J.

The court did not err in awarding a nonsuit in this case. Judgment affirmed.

Broyles, O. J., amd Luke, J., eoneur.


text:
    18504.
    Brazil v. City or LaGrange et al.

    Appeal and Error, 4 C. J. p. 905, n. 40.
    New Trial, 29 Oye. p. 947, n. 9; p. 950, n. 16; p. 959, n. 75.
    Decided December 13, 1927.
    Action for damages; from city court of LaGrange—Judge Tuggle. September 2, 1927.

      Dulc^fflavis, L. L. Meadors, for plaintiff. L. ]^A¥yatt, for defendant.
   Broyles, C. J.

3. The grounds of the motion for a new trial which complain of the refusal of certain requests to charge are not complete and understandable within themselves, as none of them show or even allege that the requested instructions were adapted to the facts of the case or were authorized by any evidence adduced. Beavers v. State, 33 Ga. App. 370 (2) (126 S. E. 305); Sandersville R. Co. v. McDaniel, 37 Ga. App. 34 (138 S. E. 584).

2. Grounds 7 and 8, which complain of the admission of certain alleged material evidence, are not complete and understandable within themselves. It is impossible for this court to determine, without referring to other portions of the record, whether the evidence objected to was material, or whether the admission was error, or harmful error.

3. Ground 9 is not unqualifiedly approved by the trial court, and, therefore, can not be considered by this court.

4. Ground 10 is based upon alleged newly discovered evidence of the misconduct of one of the jurors during the trial. The affidavit setting forth the misconduct was met by an affidavit of the juror in question, in which he denied all the material allegations in the affidavit of the witness. The judge was the trior of the questions of fact raised by the two affidavits, and his decision thereon was final.

5. The remaining special grounds of the motion for a new trial show no harmful error.

6. Under all the facts of the case this court can not hold as a matter of law that the recovery by the plaintiff should have been for a larger sum than $125 and costs of suit (the amount of the verdict).

Judgment affirmed,.

Luke and Bloodworih, JJ., eoneur.


text:
    18505.
    TRAVELERS INSURANCE COMPANY v. CONINE.
    The petition in this case, in which a death benefit was sued for by the beneficiary under a group contract of insurance issued to an employer and-covering the lives of employees, set out a cause of action. The clause of the contract which continued the insurance in force until the assured should “notify the company to terminate the insurance as to 'such employee” did not render it necessary for the plaintiff to allege that no such notice was given. The giving of such notice was matter for defense. The special grounds of the demurrer were without merit.

      Life Insurance, 37 O. J. p. 60$, n. 3 New.

      Decided December 13, 1927.
    Action on accident policy; from city court of Floyd count}»-— Judge Bale. September 6, 1927.

      Maddox, Matthews & Owens, for plaintiff in error.

      M. B. Eubanks, contra.
   Luke, J.

“Under and subject to the terms and conditions of a group contract of insurance, . . issued and delivered to Anchor Duck Mills,” Travelers Insurance Company issued a “certificate” insuring the life of Fred Calhoun Conine, an employee of said Anchor Duck Mills. He died, and his mother, Mrs. Willie Conine, sued for $600 alleged to be due her as beneficiary under the certificate.

The petition is substantially as follows: (1) Travelers Insurance Company, the defendant, is engaged in writing life insurance and has an agent in Floyd county, Ga. (2) Defendant is indebted to plaintiff in the sum of $600, besides interest, upon a certain policy of insurance, a copy of which is hereto attached and made a part hereof. (3) “Defendant did on January 6, 1925’, issue and deliver to Fred Calhoun Conine said policy of insurance Upon the life of said Fred Calhoun Conine, in accordance with the terms of said policy and contained therein.” (4) That $600 was due under the terms of said policy October 6, 1926. (5) “That said Fred Calhoun Conine died on April 23, 1927, while said policy was in full force and effect, he having eompliecÉ^ith all the conditions of said policy.” (6) “That your petitrauer was the mother of said insured and the beneficiary named in said policy.” (7) “That said sum of $600 became due upon the death of said Fred Calhoun Conine, and defendant fails and refuses to pay the same.”

The copy of the policy attached to' the petition contains the following provision: “The insurance of- any employee covered hereunder shall end when his employment with the assured shall end, except in a case where at the time of such termination the employee shall be wholly disabled and prevented by bodily injury or disease from engaging in any occupation or employment for wage or profit. In such case the insurance shall remain in force as to such employee during the continuance of such disability for the period of three months from the date upon which the employee ceased to work, and thereafter during the continuance of such disability, and while.this contract shall remain in force, until the assured shall notify the company to terminate the insurance as to such employee.” A letter from Anchor Duck Mills to “Our employees,” which is attached to the polic3>-, contains this statement: “Insurance will cease upon the attaining the age 65, or upon the termination of employment, save as the employee elects to take advantage of the conversion privilege stated on page 1 of the certificate. The certificate becomes void and is to be returned to the office of the Anchor Duck Mills.”

The'petition-was amended by adding thereto an allegation that at the time he left his work the deceased was suffering from tuberculosis, which “wholly disabled him from continuing his work, and which wholly disabled him and prevented him from at any time thereafter engaging in any occupation or employment for wages or profit.” This amendment effectually meets one ground of the demurrer, which needs no further consideration.

Other than the ground mentioned and decided, the demurrer as amended presents the following questions for determination: (1) Does the petition set forth a cause of action? (2) Is the allegation of paragraph 5 of the petition, that Conine died “while said policy was in full force and effect, he having complied with all the conditions of said policy,” a mere conclusion, unsupported by averments of fact? (3) Is an allegation that “Anchor Duck Mills had not notified this defendant to terminate the insurance as to said Fred Calhoun Conine” necessary to make out the case? Question 1 depends upon the answer to question 3. Paragraph 5 of the petition is not subject to the objection raised by the demurrer. It appears from the petition that the deceased’s disability continued more than three months from the time his employment ended. After that time the policy remained in force until notice by the assured to the company to terminate the insurance. Of course, if the “group contract of insurance” was not in force, the policy based upon it was worthless. The former, however, was an agreement between parties over whom neither, plaintiff nor her son had any control. It was not in their power either to keep the “group contract” in force or to abrogate it. The notice which under the contract would destroy plaintiff’s rights as beneficiary had to come from Anchpr Duck Mills. Whether the plaintiff or her son could have conveniently ascertained that such notice had been given we can not say. It is certain, however, that if such notice had been given, the defendant would be aware of it, and could plead it in defense to the action. In short, the giving of such notice was a matter of defense, and the'plaintiff was not required to plead or prove that it was not given. The petition set out a cause of action, and for no reason assigned did the court err in overruling the demurrer.

Judgment affirmed.

Broyles, O. J., and Bloodworlh, J., concur.


author: Brotles, O. J.

text:
    18507.
    Hester v. The State.
    Appeal and Error, 4 C. J. p. 223, n. 35.
    Decided December 13, 1927.
    Writ of error; from Laurens superior court.

      W. A. Dampier, for plaintiff in error.

      Fred Kea, solicitor-general, contra.
   Brotles, O. J.

The bill of exceptions in this case, not having been signed by the plaintiff in error or his attorney, must be dismissed. The indorsement of the name of the attorney on the back of the bill of exceptions is not a signing within the meaning of the statute. Brand v. Garrett, 62 Ga. 165.

Writ of error dismissed.

Luke and Blood/worth, JJ., concur.


text:
    18508.
    SAMS v. THE STATE.
    The evidence authorized the charge on voluntary manslaughter and the conviction of that offense.
    Homicide, 30 O. J. p. 406, n. 17.
    Decided December 13, 1927.
    Manslaughter; from Bleckley superior court—Judge Graham. September 17, 1927.

      L. A. Whipple, H. B. Goales, for plaintiff in error.

      M. H. Boyer, solicitor-general, contra.
   Luke, J.

Grady Sams was' indicted for the offense of murder and convicted of voluntary manslaughter. His motion for a new trial was upon the general grounds, and one special ground which challenged the charge of the court for the reason that the law of voluntary manslaughter was given in charge to the jury. Upon a review of the record it would have been .erroneous for the court to have failed to charge the law of voluntary manslaughter. The defendant’s conviction of this offense was fully authorized, and the court properly overruled his motion for a new trial.

Judgment affirmed.

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


text:
    18509.
    WINGFIELD v. THE STATE.
    Tlie finding of whisky in the defendant’s house, under the circumstances shown by the evidence, did not authorize 'the verdict finding her guilty of having whisky in her possession.
    Criminal Law, 16 C. J. p. 1179, n. 67 New. Intoxicating Liquors, 33 C. J. p. 777, n. 62.
    Decided December 13, 1927.
    Possessing liquor; from Wilkes superior court—Judge Perry-man. August 9, 1927.

      Hugh H. Combs, for plaintiff in error.

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

The defendant was convicted of having whisky in her possession. The record shows that the whisky was found in her house, and shows also that Joe Gartrell boarded with her. Both the defendant and Gartrell were arrested. There is no direct evidence that the whisky belonged to the defendant or that it was in her house with her consent or knowledge; Indeed, when Joe Gartrell was arrested he told the officers it was his whisky. The defendant was not present when the whisky was found. She denied knowing anything about the whisky. Under all the particular facts of the case the evidence did not exclude every reasonable hypothesis save that of the defendant’s guilt, and the judge of the superior court erred in overruling the motion for a new trial which alleged that the verdict was contrary to the law and the evidence. See Toney v. State, 30 Ga. App. 61 (116 S. E. 550); Mullins v. State, 24 Ga. App. 357 (100 S. E. 755); Cummings v. State, 25 Ga. App. 427 (103 S. E. 687).

Judgment reversed.

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


author: Beoyles, C. J.

text:
    18511.
    Fulton National Bank of Atlanta v. Cornell.
    Decided December 13, 1927.
    Certiorari; from Fulton superior court—Judge Howard. September 21, 1927.

      Little, Powell, Smith & Goldstein, William Matthews, for plaintiff in error.

      J. Lon Duclcivorth, McElreaih & Scott, contra.
   Beoyles, C. J.

Under the facts of the case as disclosed by the record, the court did not err in overruling the certiorari.

Judgment affirmed.

Luke amd Bloodworth, JJ., concur.


text:
    18518.
    Phillips v. The State.
    Intoxicating Liquors, 33 C. J. p. 758, n. 80.
    Decided December 13, 1927.
    Making liquor; from Emanuel superior court—Judge Camp presiding. September 10, 1927.

      Alfred Herrington Jr., for plaintiff in error.

      A. S. Bradley, solicitor-general, contra.
   Beoyles, C. J.

The accused was convicted of manufacturing intoxicating liquors. The evidence would have authorized a finding that he was guilty of an attempt to manufacture such liquors, but it did not authorize the verdict returned. It was not shown that any whisky had been made at the “still” in question, or that the “beer” found there by the officers was intoxicating. The refusal to grant a new trial was error.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    18519.
    Thomas v. The State.
    Criminal Law, 16 C. J. p. 931, n. 8.
    Decided December 13, 1927.
   Luke, J.

Handsome Thomas was charged with and convicted of larceny after trust. His motion for a new trial, which is upon the usual general grounds, was overruled. The evidence for the State clearly made a case of larceny after trust, and the defendant’s statement would have justified an acquittal. The jury had the right to believe the State’s testimony in preference to the statement of the accused. No error of law is shown..

Judgment affirmed.

Broyles, G. J., and Bloodnoorth, J., concur.

Larceny after trust; from Bibb superior court—Judge Mathews. September 20, 1927.

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

Charles E. Garrett, solicitor-general, contra.


author: Bloodwortii, J.

text:
    18520.
    Wright v. The State.
    Intoxicating Liquors, 33 C. J. p. 761, n. 53.
    Decided December 13, 1927.
    Certiorari; from Fulton superior court—Judge Howard. September 19, 1927.

      Audley M. Lane, for plaintiff in error.

      Carlton W. 'Binns, solicitor, John A. Boyltin, solicitor-general, J. W. LeCraw, .contra.
   Bloodwortii, J.

There was ample evidence to authorize the conviction of . the accused of the offense of possessing intoxicating liquor, and the judge of the superior court properly overruled the certiorari.

Judgment affirmed.

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


text:
    18527.
    Burt v. The State.
    Criminal Law, 17 C. J. p. 248, n. 3.
    Decided December 13, 1927.
    Seduction; from Colquitt superior court—Judge W. B. Thomas. September 22, 1927.

      James L. Bowling, for plaintiff in error.

      Clifford E. Eay, solicitor-general, contra.
   Luke, J.

1. In view of the counter-showing made by the State, the trial judge did not abuse his discretion in refusing to grant a new trial on the newly discovered evidence. Neither will the rejection of evidence as complained of in the third special ground require a new trial of the case.

2. The evidence convinced the jury of the defendant’s guilt; the trial judge approved their verdict; and, no reversible error of law being shown, this court will not say that the judge erred in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodnvorth, J., concur.


text:
    18528.
    GILLESPIE v. THE STATE.
    An instruction to the jury, that, “when witnesses appear and testify, they are presumed to speak the truth, and are to be believed by the jury, unless impeached in some manner provided by law, or otherwise discredited, in your judgment,” was correct, and was not subject to exception because of failure to add to it a certain other correct instruction, or to explain, without written request so to do, what was meant by the words, “unless impeached in some manner provided by law, or otherwise discredited. ”
    A verdict approved by the trial judge and supported by any evidence can not be set aside by this court because of alleged insufficiency of evidence.
    Criminal, 16 C. J. p. 1014, n. 54; p. 1057, n. 24; p. 1063, n. 85; p. 1218, n. 53 New; 17 C. J. p. 271, n. 41.
    Decided December 13, 1927.
    Possessing liquor; from Gordon superior court—Judge Pittman. September 17, 1927.

      J. H. Paschall, J. M. Lang, for plaintiff in error.

      John C. Mitchell, solicitor-general, contra.
   Bloodworth, J.

1. The court charged the jury: “When witnesses appear and testify, they are presumed to speak the truth, and are to be believed by the jury, unless impeached in some manner provided by law or otherwise discredited in your judgment.” This states a proper principle of law. Hamilton v. State, 143 Ga. 265 (5) (84 S. E. 583), and cit.; Ga. Talc Co. v. Cohutta Talc Co., 140 Ga. 248 (5) (78 S. E. 905). It is urged that this charge is error because the judge failed to give a certain correct charge in connection therewith. “It is not a good assignment of error on a portion of the judge’s charge which states a correct principle of law applicable to the case that some other correct and appropriate instruction was not given.” Grant v. State, 152 Ga. 252 (109 S. E. 502), and cit. See Conley v. State, 21 Ga. App. 134 (94 S. E. 261).

2. A ground of the motion for a new trial alleges that the court erred “because, after giving said charge as set forth in the fourth ground of this amended motion, the court failed anywhere in his charge to the jury to explain what he meant by his language therein set out, to wit, * unless impeached in some manner provided by law, or otherwise discredited,’ and because nowhere in his charge did he instruct them as to the manner provided by law for the impeachment of witnesses.” What is quoted from the case of Grant v. State, supra, is applicable to the assignment of error in this ground of the motion. In addition, “when it is necessary to refer to another special ground of the motion or to the record, it will not be considered.” Jennings v. State, 22 Ga. App. 550 (96 S. E. 397); Hall v. State, 22 Ga. App. 112 (4) (95 S. E. 936). Moreover, “the judge should explain to the jury the meaning of technical terms which occur in his instructions, but a failure to do so will not generally be ground for a new trial, in the absence of an appropriate and timely written request for such explanation.” Holmes v. Glisby, 121 Ga. 241 (48 S. E. 934, 104 Am. St. R. 103). See Pickens v. State, 132 Ga. 46 (63 S. E. 783).

3. In the trial of a criminal case the jurors are the sole and final arbiters of the facts, and when a case reaches this court, where no error of law has been committed on the trial and the trial judge has approved the verdict, and it is supported by any evidence, however slight, this court is powerless to- interfere. •

Judgment affirmed.

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


text:
    18536.
    Hill v. The State.
    Criminal Law, 16 C. J. p. 1217, n. 45.
    Decided December 13, 1927.
    Possessing liquor; from city court of Oglethorpe—Judge Greer. September 5, 1927.

      Jere M. Moore, Homer Beeland, for plaintiff in error.

      John B. Guerry, solicitor, contra.
   Broyles, C. J.

The motion for a new trial contained the usual general grounds only; the verdict was authorized by the evidence, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodioorih, JJ., concur.


text:
    18545.
    Lamb v. The State.
    Intoxicating Liquors, 33 C. J. p. 761, n. 53.
    Decided December 13, 1927.
    Possessing liquor; from Emanuel superior court—Judge Camp presiding. September 10, 1927.

      Price, Spivey & Bdenfield, for plaintiff in error.

      A. S. Bradley, solicitor-general, contra.
   Luke, J.

The court did not err in overruling the motion for a continuance. The evidence demanded the defendant’s conviction, and the motion for a new trial was properly overruled.'

■Judgment affirmed. Broyles, G. J., cmd Bloodtoorth, J., concur.


text:
    18546.
    LAMB v. THE STATE.

      No cause for a new trial of one who was tried under an indictment charging sale of intoxicating liquor in Emanuel county is shown by grounds of the motion for a new trial which complain of the admission of testimony as to possession and delivery of whisky in Jefferson county.

      (a) The grounds mentioned above, in which the quoted testimony was in regard to delivery and possession' by persons designated as “he,” “him,” and “they,” and not by name, are too incomplete to require consideration, since reference to the brief of the evidence would be necessary to enable this court to understand them.
    There was ample evidence to support the verdict.
    Criminal Law, 16 C. J. p. 1218, n. 53 New; 17 C. J. p. 271, n. 41.
    Intoxicating Liquors, 33 C. J. p. 764, n. 1.
    Decided December 13, 1927.
    Sale of intoxicating liquor; from Emanuel superior court-judge Camp. September 18, 1927.
    The testimony complained of in the grounds of the motion for a new trial mentioned in the decision was admitted over the objections that it evidenced a sale of liquor in a county other than that in which the defendant was being tried, and referred to possession of liquor in a county other than the county of the trial, and that it tended to prejudice the defendant’s case and to inflame the minds of the jury against him.
    There was other testimony showing the sale of liquor by the accused in the county of the trial at the time alleged in the indictment.

      Price, Spivey & Bdenfield, for plaintiff in error.

      A. S. Bradley, solicitor-general, contra.
   Bloodworth, J.

1. In. the 4th and 5th special grounds of the motion for a new trial error is alleged “because the following material evidence [of named witnesses] was illegally admitted to the jury:” (4) “I went back to the Jefferson county side with him. He then delivered this whisky to me. I saw the quantity of liquor he had in his possession. I never seen all of it. Three cases is as much as I seen. It was all in fruit-jars or appeared to be. That is a half-gallon of that same liquor that I procured from him.” (5) “They said, £We can’t deliver it to'you here. We have got 25 gallons. We will deliver it on the other side. We are afraid of Emanuel county, but we are not afraid in Jefferson county.’ Then Jim Black and Lumus went back. He asked us if we wanted to go over there. We told him £No,’ that we didn’t want to catch them in Jefferson county, that we had nothing to do with over there, that we wanted to catch them in Emanuel, and we were not going across. He went over there and brought back this half-gallon from the other side. That is the half-gallon right there.” The court did not err in admitting this evidence. See Aubrey v. State, 23 Ga. App. 763 (99 S. E. 389); Cole v. State, 120 Ga. 485 (48 S. E. 156). Moreover, these grounds of the motion are so incomplete as to require reference to the record to understand them, and this coujrt is not required to consider them. Who is the “he” and the “him” referred to in the 4th ground, and the “they” and “we” referred .to in the 5th ground?

2. There is ample evidence to support the finding of the jury, which is approved by the judge who tried the case, and this court will not interfere.

Judgment affirmed.

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


text:
    18558.
    ROY v. THE STATE.
    The sole special ground of the motion for a new trial, not being unqualifiedly approved, will not be considered.
    The verdict was amply supported by evidence.
    Criminal Law, 16 C. J. p. 122-1, n. 25.
    Weapons, 40 Cye. p. 861, n. 82; p. 862, n. 86.
    Decided December 13, 1927.
    Carrying pistol unlawfully; from Wilkes superior court—Judge Perryman. September 9, 1927.

      Hugh H. Combs, for plaintiff in error.

      M. L. Fells, solicilor-general, contr'a.
   Bloodworth, J.

The indictment in this case contains two counts, the first charging the defendant with carrying a pistol concealed, and the second charging that he “did carry around with him on his person and did have in his manual possession, outside of his own home and place of business, a certain pistol, without first tailing out a license from the ordinary of the county of which he was a resident.” The jury returned a verdict of guilty on the second count only.

1. Grounds of a motion for a new trial must have the unqualified approval of the judge who tried the case. Goolsby v. State, 35 Ga. App. 167 (2a) (132 S. E. 245); Jordan v. State, 153 Ga. 167 (2) (111 S. E. 417). The only special ground of the motion for a new trial in this ease is not so unqualifiedly approved, and this court can not consider it. Moreover, it was not error, under the facts of this case, for the judge to instruct the jury as follows: “I charge you, however, that the home or place of business of the defendant would not mean the home or place of business of any one else.”

2. The evidence was ample to support the finding of the jury.

Judgment affirmed.

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


text:
    18560.
    WALL v. THE STATE.
    1. It is not cause for a new trial that in the charge of the court the contentions of the State were stated more in detail than those of the accused.

      2. The instruction of the court that the jury must assume the duty and responsibility of passing upon the facts in the case without any aid by the court “or by any one else,” except in the charge of the court,-was not cause for a new trial on the ground that it misled the jury or caused -them to conclude that the argument of counsel was to be disregarded as an aid in reaching a proper verdict.
    3. In the charge on reasonable doubt there was no error that would require a reversal.
    4. The evidence authorized the verdict.
    Criminal Law, 16 C. J. p. 990, n. 3; p. 1008, n. 94; p. 1036, n. 65; p. 1040, n. 88; p. 1057, n. 22; 17 C. J. p. 271, n. 41.
    Decided December 13, 1927.

      Selling intoxicating liquor; from city court of Thomson—Judge Stovall. September 20, 1927.

      J. B. & T. R. Burnside, B. Randall Evans, for plaintiff in error.

      J. Q. West, solicitor, contra.
   Luke, J.

The defendant was convicted on two counts of an accusation, the first charging possession and control of intoxicating liquors, and the second charging the sale of intoxicating liquor; and he excepts to the overruling of his motion for a new trial.

The first special ground of the motion for a new trial alleges error because the court charged the contentions of the State more in detail than he did those of the defendant. “While the contentions of the State were given more at length than were the contentions of the defendant, the statement of the defendants contentions was apparently full and fair, and, in the absence of a timely and appropriate request for fuller instructions as to his contentions, no error appears in this respect. It is well settled that the mere fact that the contentions of one side are stated more at length than those of the other does not show that undue stress was laid upon or undue prominence given to the contentions so stated. Millen &c. Railroad Co. v. Allen, 130 Ga. 656 (1), and cit.” Smith v. State, 24 Ga. App. 654 (2a) (101 S. E. 764).

Error is assigned because the court charged the -jury as follows: “If you have in any manner got an idea that I have intimated to you what I think has been proven or has not been proven, I ask you now to disregard it entirely. You must assume the duty and the responsibility of passing upon the facts in this case without any aid by me or by anyone else, except in so far as the charge which I give you—the rules under which you will apply the law to the evidence in this case.” While the words “or by anyone else” might well have been omitted, we are of the opinion that this instruction ■ did not mislead the jury or cause them to conclude that “the argument of counsel is to be disregarded as an aid to the jury in reaching a proper verdict on the facts of the case.” Even were this true, it applied with equal force to counsel for both sides. The charge complained of contains no reversible error.

The court charged the jury that in order to authorize a conviction, the evidence must satisfy their minds “as reasonable and impartial jurors beyond a reasonable doubt. . . The reasonable doubt which the law Contemplates and to which the defendant is himself entitled to the benefit of, is just such a doubt as would remain in the mind of an honest juror conscientiously undertaking from a careful analysis and careful weight of all the evidence in the case, just such a doubt as would remain in the mind of a juror, that kind of a juror and under those circumstances.” There is no reversible error in this charge. See Peterson v. State, 47 Ga. 524 (5).

There was direct evidence that the defendant possessed whisky and sold whisky; the jury believed this evidence, as shown by their verdict; the trial judge approved their finding; and the judgment overruling the motion for a new trial will not be disturbed.

Judgment affirmed.

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


text:
    18470.
    GEORGE v. THE STATE.
    Applying tlie prima facie presumption as to the husband’s ownership of intoxicating liquor found in a house in which he and his wife reside together, the jury, under the evidence in this case, were authorized to find the accused guilty of possession of such liquor.
    Although the judge in his charge to the jury might have applied more aptly than he did the rule as to the presumption stated above, yet in the light of the charge as a whole and in the absence of a request for fuller or more specific instructions, the exceptions to the charge do not require a new trial. •
    Intoxicating Liquors, 33 O. J. p. 744, n. 16; p. 761, n. 53; p. 791, n. 53.
    Decided December 14, 1927.
    Possessing liquor; from city court of Yaldosta—Judge Cranford. August 26, 1927.

      W. B. Perry, for plaintiff in error.

      R. G. Diclcerson, solicitor, contra.
   Luke, J.

1. “In tbis State the husband is recognized by law as the head of his family, and, where he and his wife reside together, the legal presumption is that the house and all the household effects, including any intoxicating liquors, belong to the husband as the head of the family. This presumption, of course, is rebuttable.” Isom v. State, 32 Ga. App. 75 (122 S. E. 722). See also Hendrix v. State, 24 Ga. App. 56 (100 S. E. 55); Young v. State, 22 Ga. App. 111 (95. S. E. 478). Applying the foregoing rule of law to the evidence as a whole, and to the defendant’s statement that “other people live in that house besides me,” the jury had the right to conclude that the defendant was in the possession, custody, and. control of the seventy-seven pints of whisky found in the house occupied by his wife and children; and this is true notwithstanding the defendant’s assertion that his mother-in-law rented the house, and that his cousin lived in it, and that the defendant himself “did not live in Yaldosta for the past eight years for more than about two weeks at a time.” It follows that the judgment overruling the motion for a new trial can not be reversed upon the general grounds of the motion.

2. While the trial judge, in his charge to the jury, might have applied the rule of law set out in Isom v. State, supra, more aptly to the different phases of the case, including the contentions made by the defendant in his statement, yet in the light of the charge as a whole, and of the fact that there was no request for fuller or more specific instructions, this court declines to hold that either of the special grounds of the motion for a new trial discloses reversible error. See Reynolds v. State, 23 Ga. App. 369 (98 S. E. 246).

Judgment affirmed.

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


author: Brotms, O. J. Bloodworth, J.,

text:
    18476.
    BELL v. PIKE.
    Appeal and Error, 4 O. J. p. 223, n. 35.
    Pleading, 31 Cyc. p. 529, n. 22.
   Brotms, O. J.

1. Under the principle of the ruling in Bank of Ringgold v. Poarch, 30 Ga. App. 102 (117 S. E. 114), the bill of exceptions in the instant case was- signed by counsel for the plaintiff in error; and the motion by counsel for the defendant in error to dismiss the bill of exceptions is denied. The request of counsel for the defendant in error that the decision in the Bank of Ringgold case be reviewed and overruled is also denied.

2. It is well-settled law in this State that where an action is founded upon an unconditional contract in writing, a plea filed thereto must be sworn to, and in such a case where the plea is not verified it is not error for the court to strike the plea on demurrer. Cherry v. Rawson, 49 Ga. 228 (2). Under this ruling and the facts of the instant case, the court did not err in striking the amended answer on the demurrer interposed, or thereafter in permitting verdict and judgment to be entered up in favor of the plaintiff. Judgment affirmed,.

Decided December 14, 1927.

Complaint; from Catoosa superior court—Judge Pittman. August 2, 1927.

McClure & McClure, T. J. Head, for plaintiff in error.

William H. & Gordon Mcrnn, contra.

LuJce, J., concurs.

Bloodworth, J.,

dissenting. I do not agree with my associates as to the first paragraph of the decision. I think that the signing of the bill of exceptions in the case of Bank of Ringgold v. Poarch, 30 Ga. App. 102 (117 S. E. 114), is quite different from the present ease. Indeed, I do-not believe that the bill of exceptions in the instant case was ever signed by the attorneys. A dotted line was left on the right of the page on which they were to sign, and this is still blank. Under this dotted line appear the words, “Attorney for Plaintiff in Error.” On the left of the page in the same type and ink as that of the bill of exceptions appear the names of the attorneys, followed simply by the words, “Attorneys at law, Einggold, Ga.” I think this signing on the typewriter was an effort to comply with sections 6224 and 6332 of the Code, which require that attorneys, “when signing a bill of exceptions or acknowledging service thereof, will add to their signature their post-office address;” and it is not an effort to comply with the law requiring their signature to the bill of exceptions.


text:
    18480.
    Bolton v. The State.
    Decided December 14, 1927.
    Assault and battery; from Wilkes superior court—Judge Perry-man. August 9, 1927.

      Hugh H. Combs, for plaintiff in error.

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

Bolton was indicted for the offense of assault with intent to murder, and his conviction of the offense of assault and battery was fully justified. Eor none of the reasons 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:
    18494.
    LOGAN v. GOSSETT.
    Under the decision in the ease of Goddard v. Watt&rs, 14 Ga. App. 722 (2) (82 S. E. 304), and decisions there cited, no cause of action was stated in the petition in this case, in which a recovery of damages was sought for “a nervous collapse and breakdown mentally and physically,” “great mental and physical pain,” confinement to bed and great lessening of capacity for enjoyment, because of alleged wilful and wanton acts of the defendant in entering unlawfully and without notice the house in which the plaintiff and her husband were living, when she was nursing a sick child, and in a highly excited voice making threats against a negro woman in the house and against her husband, whom he charged with shielding the negro, thus causing the plaintiff great fright and shock.
    Damages, 17 O. J. p. 752, n. 39; p. 836, n. 77.
    Torts, 38 Oye. p. 449, n. 2.
    Decided December 14, 1927.
    Action for damages; from Spalding superior court—Judge Searcy. October 27, 1927.

      F. A. Scums, S. B. Wallace, for plaintiff,
    cited: 81 Ga. 640; 127 Ga. 125, 131; 2 Ga. App. 845; 35 Ga. App. 59; 36 Ga. App. 817; 102 Ga. 474; 79 Ga. 360; 14 Ga. App. 722 (distinguished); 146 Ga. 243, and 23 Ga. App. 161 (distinguished).

      Cleveland & Goodrich, for defendant, cited:
    14 Ga. App. 722, 727; 146 Ga. 243; 23 Ga. App. 161; 25 Ga. 829, 35 Ga. 59, and 36 Ga. App. 817 (distinguished).
   Luke, J.

Mrs. Eleanor Logan sued A. E. Gossett for damages, the court sustained a general demurrer to her petition, and she excepted.

The paragraphs of the petition material to an understanding of this decision are substantially as follows:

“4. On or about Dec. 31, 1926, in' said county, defendant did unlawfully and wantonly, and uninvited and without notice, and through no fault of the plaintiff, enter the house where petitioner and her husband and family were living, and, while petitioner was sitting in a chair and attending her sick child, defendant did then and there, in a highly excited voice, and with threatening gestures, point to a negro woman then in said house, and did then and there say: £I am going to have that God-dam bitch sitting right there,’ in the presence of petitioner and her little child, and causing petitioner great fright and physical and mental shock. II. W. Logan, husband of petitioner, then quietly invited defendant out of the house, and then defendant said to H. W. Logan: ‘By God, yon are shielding that negro;’ all in the presence and to the great fright and injury of petitioner. Then defendant, in the presence of petitioner, said: ‘Look here, that negro hit me on the hand, and I am going to kill her;’ causing petitioner great mental and physical shock and fright. Then, out in the yard of said home, . . defendant put his hand back on his pistol and said to peti..tioner’s husband: ‘Don’t you come no further on me, or I will fix you;’ causing, fright and shock and suffering to petitioner, all in her presence and in her house or in her yard. And after he had terrorized the family, defendant walked up and down in front of where plaintiff lives, in a highly excited and threatening manner, in the presence of petitioner, and to the great fright and shock of petitioner.”

“5. Petitioner shows that although she was in good health, and was up and doing her housework before the experience set out in paragraph 4 above, that within two days thereafter petitioner suffered a nervous collapse and breakdown mentally and physically, all caused by and brought on by the unlawful and wilful acts of defendant as set out in paragraph 4 above, and through no fault of your petitioner; and that petitioner has suffered great mental and physical pain, and has been confined to bed, and her capacity for enjoyment has been greatly lessened, and that she has been unable to care for herself, all caused by the wilful and wanton acts of defendant as set out in paragraph 4 above.”

“6. Petitioner prays that she have judgment against defendant for the sum of ten thousand dollars, damages for mental and physical pain and suffering caused by defendant as set out in paragraph 3 above.”

The demurrer follows: “1. The petition sets out no cause of action.” “2. It appears from the petition that plaintiff seeks to recover damages for fright and mental shock unaccompanied by any injury or damage to her person or purse.” “3. The damages alleged in the petition are not recoverable in an action of this kind.”

Upon the authority of Goddard v. Watters, 14 Ga. App. 722 (2) (82 S. E. 304), and cit., the court did not err in sustaining the general demurrer.

Judgment affirmed.

Broyles, G. J., and Bloodworlh, J., concur.


text:
    18502.
    SECURITY FINANCE CO. v. HERRIN DRUG CO.
    There was some evidence, though slight, to sustain the verdict in favor of the plea that the radio and the graphophone for which the notes sued on were given were worthless and that the plaintiff was not an innocent purchaser of the notes; and there was no error that would require a new trial.
    New Trial, 29 Oye. p. 824, n. 41.
    Decided December 14, 1927.
    Complaint; from Barrow superior court—Judge Stark. September 1, 1927.

      Q-. A. Johns, for plaintiff in error. B. B. Bussell Jr., contra.
   Luke, J.

Herrin Drug Company purchased from Brenard Manufacturing Company a combination radio and graphophone, and gave promissory notes therefor. These notes were indorsed by the' original payee to Security Finance Company, which sued on them. The defendant pleaded that the articles sold were worthless, and that the plaintiff was not an innocent purchaser for value of the notes. The jury found for the defendant. Held, that, though slight, there was some evidence to sustain the plea; that the special assignments disclose no reversible error; and that the judgment overruling the motion for a new trial was not error.

Judgment affirmed.

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


author: ■ Broyles, C. J.

text:
    18506.
    HESTER v. THE STATE.
    The charge of the court that if the jury should determine that a confession was properly made, “the doctrine of circumstantial evidence would not apply,” was error, because the evidence, outside the confession, as to the corpus delicti was wholly circumstantial.
    Criminal Law, 16 C. J. p. 773, n. 34; p. 1008, n. 4.
    Decided December 14, 1927.
    Larceny; from Laurens superior court—Judge Camp. September 14, 1927.

      W. A. Dampler, for plaintiff in error.

      Fred Xea, solicitor-general, contra. ■
   ■ Broyles, C. J.

1. The accused was tried on a felony charge and the jury returned a verdict of “guilty.” While there was proof of a confession by the accused, the evidence, outside of the confession, as to the corpus delicti was wholly circumstantial. The corpus delicti may be proved by circumstantial evidence, but “the circumstantial evidence should be so conclusive as to exclude every reasonable hypothesis other than that a crime has been committed.” Ray v. State, 4 Ga. App. 67 (2), 70 (60 S. E. 816). Under that ruling and the facts of the instant case the court erred in instructing the jury as follows: “ Should you determine in this case that a confession was properly made, then the doctrine of circumstantial evidence would not apply.” Under the facts of the case the doctrine was applicable to the proof of the corpus delicti.

2. In the state of the record the other special assignments of error show no cause for a reversal of the judgment below.

3. As another trial of the case must be had, the sufficiency of the evidence to support the verdict is not passed upon. This court, however, feels called upon to say that the evidence tending to connect the accused with the offense charged, and especially the evidence as to his alleged confession, is extremely weali and unsatisfactory.'

Judgment reversed.

Lulce and Bloodworth, JJ., concur.


text:
    18526.
    McLendon v. The State.
    Homicide, 30 O. J. p. 452, n. 38.
    Decided December 14, 1927.
    Manslaughter; from Seminole superior court—Judge Yeomans. September 30, 1927.

      H. G. Bawls, B. L. Gox, J. T. Goree, W. I. Geer, for plaintiff in error.

      B. T. Gastellow, solicitor-general, B. B. Arnold, B. G. Hill, contra.
   Broyles, C. J.

The accused was indicted for the offense of murder and was convicted of voluntary manslaughter. He made a statement to the jury, but introduced no evidence. The uncontradicted evidence adduced by the State demanded a verdict of murder, and the statement of the accused to the jury showed no legal justification for the killing and fully authorized his conviction of murder. Under these facts he will not be heard to complain that he was convicted of a lesser grade of homicide. Lewis v. State, 17 Ga. App. 195 (86 S. E. 413).

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    18547.
    Quarles v. The State.
    Criminal Law, 16 C. J. p. 505, n. 23; p. 831, n. 66; p. 976, n. 42; p. 977, n. 53; p. 986, n. 64, 70; p. 991, n. 7; p. 1005, n. 59; p. 1006, n. 69; p. 1014, n. 54; p. 1015, n. 80; p. 1058, n. 37; p. 1061, n. 61; p. 1219, n. 67; 17 C. J. p. 89, n. 65; p. 233, n. 83; p. 235, n. 91.
    Intoxicating Liquors, 33 O. J. p. 759, n. 98.
    Decided December 14, 1927.
   Broyles, C. J.

1. This court can not hold that the trial judge abused his discretion in denying the motion for a continuance of the case, based upon the absence of a material witness, since upon the hearing of the motion the movant failed to state that he expected to have the testimony of the witness at the next term of the court. Williams v. State, 25 Ga. App. 380 (2) (103 S. E. 685).

2. Those grounds of the motion for a new trial which allege that the court erred in allowing the solicitor-general to propound certain questions to a witness, over the objections of the accused, fail to set out the answers of the witness, and therefore raise no question for consideration by this court. Kerney v. State, 21 Ga. App. 500 (94 S. E. 625), and cit.

3. Ground 4 show's no error in the questioning of a witness by the trial judge, nor any good reason why the motion for a mistrial should have been granted.

4. It w'as not error for the court to instruct the jury as follows: “When witnesses appear and testify, they are presumed to speak the truth, and are to be believed by the jury unless impeached in some manner provided by law', or otherwise discredited in your judgment.” Hamilton v. State, 143 Ga. 265 (5) (84 S. E. 583).

5. Ground 6 of the motion is without merit.

6. The charge upon the law' of alibi was npt error for any reason assigned. Smith v. State, 3 Ga. App. 803 (61 S. E. 737), and cit.

7. The charge set forth in ground 8 of the motion w'as not error for any reason assigned. Martin v. State, 28 Ga. App. 723, 727 (113 S. E. 27), and cit.

8. The court did not err, in the absence of a proper written request, in failing to instruct the jury on the rule as to' reconciling conflicting testimony. Lewis v. State, 125 Ga. 48 (53 S. E. 816).

9. In the light of the evidence adduced and the charge of the court, and in the absence of a proper written request, the failure to charge as set forth in ground 10 of the motion was not error.

10. Ground 11 of the motion is without substantial merit. A clear charge on the subjects of reasonable doubt and the presumption of the defendant’s innocence, with an instruction that it is the jury’s duty to acquit if they should have a reasonable doubt of the guilt of the accused, sufficiently informs the jury that the burden is on the State to prove the defendant’s guilt beyond a reasonable doubt. Watts v. State, 20 Ga. App. 182 (2) (92 S. E. 966); Thomas v. State, 129 Ga. 419 (4), 423 (59 S. E. 246).

11. The verdict was authorized by the evidence.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Transporting intoxicating liquor; from Murray superior court —Judge Pittman. October 1, 1927.

Tbe ground of the motion for a new trial referred to in paragraph 3 of the decision, after setting out testimony of a witness for the defense who was being examined by the court, in which occurred the statement that he “did not pass Luke, him and that mule, on the road,” followed this testimony with these questions and answers: Q. “Did you pass him on the road?” A. “Who, Luke?” Q. “Him and that mule.” A. “No.” Q. “Did not pass him?” A. “I did not go by his house.” Q. “What say?” At this point counsel for the defendant objected “to the questioning by the court,” and moved for a mistrial, and “before counsel could state his reasons for objecting and why a mistrial should be granted,” the court overruled the objection and the motion. It is contended that 'this questioning was a violation of section 1058 of the Penal Code as to the expression or intimation of an opinion of the court as to what had been proved, and that the questions were not “within the limitation of law with regard to the court’s questioning of a witness;” that “the court should have remained silent as the sphinx” until the time to charge the jury.

In the ground referred to in paragraph 5 of the decision it is alleged that the court erred in charging as follows: “In determining what weight you will attach to the testimony of any witness, you will look to his appearance on the stand, consider his manner of testifying, his interest or want of interest in the case, his feeling, prejudice or bias, if anything of the sort is made to appear, together with his opportunity of knowing the facts about which he testifies, and his inducement, if any, to swear falsely; and you will consider also the personal credibility of witnesses; you may consider also the number of witnesses. However, I charge you that the greater weight of testimony is not necessarily with the greater number of witnesses.” It is' contended that the effect of the use of the word “his” was to withdraw from consideration the testimony of a female witness for the defendant; and that in other respects these instructions were prejudicial.

The instructions referred to in paragraph 6 of the decision were as follows: “The defendant in this case has set up the defense of alibi. Alibi, as a defense, involves the impossibility of the prisoner’s presence at the scene of the crime at the time of its commission, and the range of the evidence in respect to time and place must be such as to reasonably preclude the possibility of his presence. When a defendant sets up a defense.of an alibi the burden is on him to establish his defense of an alibi to the reasonable satisfaction of the jury, and it is your duty to consider the evidence on the question of alibi along with all other evidence introduced in this case, and if all the evidence so considered creates in your mind a reasonable doubt as to the guilt of the prisoner, then it is your duty to give him the benefit of that doubt and to acquit him, the law being, before you can convict him you must believe him guilty beyond a reasonable • doubt.” It is contended that these instructions are incomplete, confusing, and misleading; that the court should have added certain other instructions (set out) as to the duty to acquit if the defense of alibi had'been proved to the reasonable satisfaction of the jury; and that the court should have instructed the jury to consider the defendant’s statement in connection with the evidence on alibi, and should have instructed them that if they had a reasonable doubt as to whether the accused had established the alibi, he should be acquitted.

Paragraph 7 of the decision refers to the following part of the .charge: “Looh to all the evidence in the case, and if you believe from the evidence, as reasonable men, viewing it in the light of common sense, that the defendant is guilty of this-charge, you ought to convict him. If you do not believe he is guilty, you ought to acquit him.” It is contended that this withdrew from consideration the defendant’s statement.

Paragraph 9 of the decision-refers to the failure to charge the jury as follows: “Where the facts in evidence and all reasonable deductions therefrom present two theories, one of guilt and the other of innocence, the justice and humanity of the law compel the acceptance of the theory which is consistent with innocence.”

Paragraph 10 of the decision refers to the failure to charge as follows: “The burden is upon the State to prove the defendant’s guilt beyond a reasonable doubt; and in order to have carried this burden, they must have proven every material allegation in the indictment in this case beyond a reasonable doubt.”

H. H. Anderson, W. B. Robinson, for plaintiff in error.

John 0, Mitchell, solicitor-general, contra.


author: Jenkins, P. J.

text:
    18063.
    ANTHONY, for use, etc., v. CALLAWAY.
    Where no copy of the note sued on was attached, to the petition of one who for the use of another person was suing upon a promissory note, and the petition did not show to whom the note was payable, or whether it was negotiable or had been indorsed, or who was the holder, and therefore the petition did not show that the legal title to the instrument sued on was held by the person bringing the suit, the court, on special demurrer, did not err in dismissing the petition.
    Bills and Notes, 8 C. J. p. 821, n. 84; p. 857, n. 85; p. 885, n. 31; p. 897, n. 73.
    Pleading, 31 Cyc. p. 78, n. 95; p. 337, n. 1 New.
    Decided December 15, 1927.
    Complaint; from Wilkes superior court—Judge Perryman. February 11, 1937.

      Lawson E. Thompson, for plaintiff. M. L. Felts, for defendant.
   Jenkins, P. J.

Anthony, for the use of Combs, sued S. T. Callaway and Jessie M. Callaway on a promissory note described as being for a stated amount, bearing a stated date, maturing on a certain date, and bearing certain credits. No copy of the note is attached to the suit, and it does not appear from the petition to whom the note is payable, or whether it is negotiable, whether it had been indorsed, or who is the holder thereof, it merely being alleged “that said defendants are indebted to your petitioner” on the described note. A demurrer was interposed by the defendants, on, the grounds that the suit was pending in the name of no person or corporation, and that the note was insufficiently described and no copy thereof attached to the petition. On the hearing of the demurrer the court passed an order reciting that, “the plaintiff’s counsel in the above-stated ease admitting that there is no such person as G. T. Anthony, and that said Anthony was dead at the time of the commencement of the above-stated case, the within demurrer is sustained and the case dismissed on motion of defendants’ counsel, for the reason that it is proceeding in the' name of no person whomsoever.”

1. While it has been held that admissions of counsel can not be considered in passing upon a demurrer (Hicks v. Beacham, 131 Ga. 89 (3), 93, 63 S. E. 45; Pollard v. Blalock, 147 Ga. 406 (3), 94 S. E. 336), yet since it is the general rule that an action on a promissory note must be brought in the name of the person holding the legal title thereto, and since from the petition, which must be construed against the pleader, it in no wise appears that the legal title to the instrument sued on was held by the person instituting the suit, it not being alleged, as in Hobbs v. Citizens Bank, 32 Ga. App. 522 (124 S. E. 72), to whom the note was executed and delivered, the demurrer interposed should have been sustained, even though the court might not have been authorized to take into account the admission of the plaintiff in open court that the usor named in the petition had become deceased before the suit was commenced.

2. No offer having been made to amend the petition by striking the name of the deceased usor as plaintiff, so as to seek its maintenance in the name of the usee, the contention made in the brief of counsel that the suit should have been allowed to continue in the name of the usee is not a question which the record presents for determination.

Judgment affirmed.

Stephens and Bell, JJ., concur.