author: Jenkins, P. J.

text:
    18421.
    KELLY v. EDWARDS et al.

    Decided April 14, 1928.

      W. I. Geer, P. Z. Geer, for plaintiff.
   Jenkins, P. J.

This was a suit against a sheriff and his bondsmen to recover damages on account of the alleged failure of the sheriff to execute a bail-trover process for the recovery of a certain mule. The evidence authorizes a finding that at the time the bailtrover process was issued, the defendant therein was not in the county, and thereafter moved out of the State, and that the sheriff might have been justified in his failure to execute the process; also that the sheriff was unable to locate the mule sued for. The jury found in favor of the defendant. Exception is taken to the charge of the court, on the ground that the judge expressed an opinion upon the issues of fact; that he failed to charge specifically, on his own motion, that the taking of a claim bond by the sheriff would constitute no defense to his failure to execute the bail-trover process; and on account of his failure, on his own motion, to charge the principle of law to the effect that if the plaintiff in trover had bargained the mule to the defendant in trover on the condition that the defendant was to give a note to the plaintiff and a mortgage upon the property sued for and another mule, and if he failed to comply with this condition of the sale agreement, that the title to the property did not pass from the plaintiff to the defendant in trover.

1. The evidence upon the issue as to whether the sheriff exercised diligence in seeking to execute the bail-trover process being in conflict, the verdict rendered in favor of the defendants can not be set aside upon the general grounds.

2. The charge of the court to the effect that the ease presented a simple issue of fact, which it was the province of the jury to determine, was not a statement such as would indicate an opinion of the judge as to what the finding upon the issue should be. The instruction to the jury that “if you find that the sheriff by ordinary diligence could not seize the mule, that the mule was not in the county, was not where he could seize it, get to it, or if you find that in addition to that fact that the defendant was not in the county, had gone, and that he could not be arrested, that would be a complete defense of the defendant and his surety; it would be your duty to find for them, in which event the form of your verdict would be-: ‘We, the jury, find for the defendant,’ ” did not amount to an expression of -opinion upon the issues of fact. ■ • '

3. The court clearly charged the jury that it was a duty incumbent upon- the sheriff, by law, to execute the bail-trover process, and that the sole issue involved was whether or not he had exercised diligence in seeking to perform that duty, and that a failure to perform it could be excused only by showing diligent efforts to execute the process. This amounted to an adoption of what the plaintiff now contends was the law, that the plaintiff’s title in the property sued for authorized the maintenance of the action in trover, and it eliminated any possible confusion growing out of the testimony that after the sheriff had failed, after diligent effort, to find the property, he took a claim bond of a third person.

Judgment affirmed.

Stephens and Bell, JJ., concur.


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    18423.
    CARSWELL v. WOODWARD BROTHERS.
    Decided April 14, 1928.

      B. F. Walker, for plaintiff.

      FulTbright & Burney, for defendants.
   Bell, J.

Mrs. P. D. Carswell filed with the industrial commission a claim against Woodward Brothers for compensation for the death of her husband, who was killed while working at a cotton-gin owned and operated by the respondents in Burke county. The industrial commission denied the claim, and, the superior court having, on appeal, affirmed the action of the commission, the claimant brought the case to this court for review. The industrial commission based its award upon a finding that the respondents had regularly in their service less than ten employees in the same business, and thus, in the absence of election by them and the decedent to become bound thereby, were not subject to the provisions of the compensation act. It appeared from the evidence that Woodward Brothers were a partnership, and, as such, owned and operated a store, a cotton-gin, a planing mill, and certain sawmills, which they rented to other people, who in turn used them to saw lumber for the respondents at so much per thousand feet. The gin and the planing mill were situated near to each other and were operated with power from a common engine and boiler. However, for some reason having reference to the adequacy of the machinery, they were never operated at the same time. The planing mill was always shut down during the main portion of the ginning season. Ten or more employees were regularly employed at the planing mill when it was in operation, but never as many as ten were employed at the gin. The ginning season lasted for about three months of each year. Accounts in connection both with the gin and the planing mill were kept by one of the partners on their books at the store. The decedent was not employed to perform any service at the planing mill, and performed none, and was working at the gin at the time of the injury which caused his death. At the beginning of the ginning season, when the planing mill would be closed, all employees except such as were needed to operate the gin were discharged until needed again at the planing mill. There were no other facts tending to connect the two enterprises as parts of the same business.

Under the evidence the gin and the planing mill were not parts of the same business, although they were operated by power from a common source and were owned and controlled by the same persons. Sargent v. Henderson, 79 Ga. 268 (2) (5 S. E. 122); Leidy v. Gould, 37 Ga. App. 410 (2) (140 S. E. 400); Holliday v. Merchants & Miners Transp. Co., 161 Ga. 949 (2) (132 S. E. 210). Under section 15 of the workmen’s compensation act (Ga. L. 1920, p. 167), the provisions of the act are not applicable to any employer “that has regularly in service less than ten employees in the same business within this State,” unless he and his employees voluntarily elect to become bound thereby. In this case neither of the parties had made such election, and, since less than ten men were regularly employed at the gin, it is immaterial how many were regularly employed at the planing mill. The industrial commission correctly held that the claimant could not proceed under the compensation statute, and the superior court properly denied the appeal.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    18429.
    Backey v. Grow.
    Decided April 14, 1928.

      W. I. Geer, P. Z. Geer, for plaintiff in error.

      Lamar Cox, contra.
   Bell, J.

1. Ordinarily a tenant cannot dispute the landlord’s title uor at-torn to another while in possession; but there is an exception to this rule where the landlord, after renting the premises to the tenant, has sold and conveyed the same to a third person and is not the owner at the time of proceeding against the tenant. In such a case, where the original landlord seeks to dispossess the tenant as for holding over beyond his term, the proceeding may be defeated upon the ground that the right is not in the original landlord but in the person holding under him. Raines v. Hindman, 136 Ga. 450 (71 S. E. 738, 38 L. R. A. (N. S.) 863, Ann. Cas. 1912C, 347); Hindman v. Raper, 143 Ga. 643(2) (85 S. E. 843); Hines v. Lavant, 158 Ga. 336 (3) (123 S. E. 611).

2. “If a plaintiff testify in his own behalf, and there are material conflicts and contradictions in his own testimony, he is not entitled to recover, unless that portion of his testimony which is least favorable to his contention is of such a character as to authorize a recovery in his behalf.” Horne v. Peacock, 122 Ga. 45(2) (49 S. E. 722); Steele v. Central of Ga. Ry. Co, 123 Ga. 237(1) (51 S. E. 438); Long Cigar & Grocery Co. v. Harvey, 33 Ga. App. 236(2) (125 S. E. 870). Applying this rule to the testimony of the plaintiff in the instant case, it is conclusive that after the contract of tenancy, he conveyed the premises by deed to a third person before instituting the proceeding to eject the defendant as a tenant holding over, and did not own the premises at that time. The verdict in his favor was therefore unauthorized, and the defendant was entitled to a new trial.

3. Even assuming that the testimony of the plaintiff would have authorized the inference that he had reacquired the property before the trial (but see Holder v. Scarborough, 119 Ga. 256 (46 S. E. 93); Sikes v. Seckinger, 164 Ga. 96(3), 137 S. E. 833), it still was undisputed, in the evidence, that he had parted with his title and was not the owner of the premises at the institution of the dispossessory proceeding; and the general rule is that there can be no recovery unless the plaintiff has a complete cause of action at the time the suit is filed. Deas v. Sammons, 126 Ga. 431 (55 S. E. 170, 7 Ann. Cas. 1124); Elmore v. Thaggard, 130 Ga. 701(3) (61 S. E. 726).

4. Since it is held that the verdict in favor of the plaintiff should have been set aside on the general grounds, it is unnecessary to pass upon the special grounds of the motion for new trial.

Judgment reversed.

Jenkins, P. J., mid Stephens, J., concur.


text:
    18437.
    LEVERETT v. LOUISVILLE & NASHVILLE RAILROAD COMPANY.
    Decided April 14, 1928.

      Mozley & Gann, H. B. Moss, for plaintiff.

      Tye, Peeples & Tye, Morris, Hawkins & Wallace, for defendant.
   Bell, J.

The petition failed to set forth a cause of action, and the general demurrer was properly sustained, — not necessarily upon the ground that the petition failed to show negligence on the part of the railroad company, but because it affirmatively appeared that the decedent was guilty of such negligence as to bar a recovery for his death, where it was not caused by any wilful or wanton act on the part of the company. A. C. L. Ry. Co. v. Fulford, 33 Ga. App. 631 (127 S. E. 812); A. C. L. Ry. Co. v. Fulford, 159 Ga. 812 (127 S. E. 274); Lowe v. Payne, 156 Ga. 312 (118 S. E. 924); Central of Ga. R. Co. v. Tapley, 145 Ga. 792 (89 S. E. 84); Moore v. So. Ry. Co., 136 Ga. 872 (72 S. E. 403); So. Ry. Co. v. Davis, 132 Ga. 812 (65 S. E. 131); So. Ry. Co. v. Hogan, 131 Ga. 157 (62 S. E. 64); W. & A. R. Co. v. Ferguson, 113 Ga. 708 (39 S. E. 306, 54 L. E. A. 802); Peeples v. L. & N. R. Co., 37 Ga. App. 87 (139 S. E. 85); Reese v. So. Ry. Co., 35 Ga. App. 369 (1 a) (133 S. E. 284); Henson v. L. & N. R. Co., 34 Ga. App. 421 (129 S. E. 907); Bugg v. Knowles, 33 Ga. App. 710 (127 S. E. 814); Young v. So. Ga. Ry. Co., 34 Ga. App. 537 (130 S. E. 542); Moore v. Seaboard Ry. Co., 30 Ga. App. 466 (118 S. E. 471); Western Union Tel. Co. v. Spencer, 24 Ga. App. 471 (101 S. E. 198).

Judgment affirmed.

Jenkins, P. J., and Stephens. J., concur.


text:
    18515.
    Gentile Brothers Co. v. Barron & Son.
   Bell, J.

1. Where the owner of a earload of peaches, which were at the time in transit and subject to diversion, engaged a broker to handle and sell them on commission, and where the broker, in ordering a diversion, gave to the carrier the wrong car-number, and, as a result, the car was delayed in reaching the market, the broker may be held liable for any resulting damage. In this case the evidence was sufficient to authorize the inference that the defendant broker was negligent in giving to the carrier the wrong car-number, and also that this negligence was a proximate cause of at least a part of the damage to the peaches. Barron v. Gentile, 36 Ga. App. 459 (137 S. E. 106),

Decided April 14, 1928.

Hall, Grice & Bloch, for plaintiff in error.

John R. L. Smith, Joseph LeConle Smith, contra.

2. While the evidence may have shown that only one of the two days delay was attributable to the fault of the defendant, there was evidence from which the jury could legitimately determine the proportionate part of the damage caused by the defendant’s negligence; and the verdict returned in the plaintiff’s favor was not excessive.

3. The charge of the court fully covered all the material issues raised by the pleadings and the evidence, and none of the excerpts therefrom were subject to the criticisms lodged against them. In the absence of timely written requests for more specific instructions, there was no error in the failure to give in charge certain additional principles.

4. There was no merit in any ground of the motion for new trial.

Judgment affirmed.

Jenldns, P. J., and Stephens, J., concur.


text:
    18524.
    Clay v. Brown.
   Bell, J.

1. In a suit for assault and battery, if the defendant was authorized by law to do the act complained of, he may plead the same as a justification and obtain all the privileges of one holding the affirmative of the issue. Civil Code (1910), § 4488. In such a case the burden of proof is lifted from the plaintiff and east on the defendant. But in order to obtain such a result, the plea must admit the commission of the act in form and manner as charged in the petition, and a plea which merely admits the act in part and justifies it in part, although setting forth a valid defense, is not such a plea of justification as will relieve the plaintiff of the burden of proof and entitle the defendant to open and close. Berkner v. Dannenberg, 116 Ga. 954(4) (43 S. E. 463); Ocean S. Co. v. Williams, 69 Ga. 251 (1, 2); Seymour v. Bailey, 76 Ga. 338; Augusta Factory v. Barnes, 72 Ga. 217(2) (53 Am. R. 838); Chapman v. Atlanta & W. Point R., 74 Ga. 547; Binder v. Ga. Ry. &c. Co., 13 Ga. App. 381(5) (79 S. E. 216).

2. Hence, in a suit for assault and battery, where the petition alleged that “the defendant was a strong and vigorous woman and mad with rage,” and struck the plaintiff violently and “with all the force she could use,” a plea in which the defendant admitted only that she struck the plaintiff “with her open hand,” and pleaded facts to justify the blow as thus admitted, was not a. good plea of justification, in the sense that it shifted the burden of proof and placed the defendant in the position of one holding the affirmative of the issue.

3. Applying the foregoing rulings, the court did not, in view of the plea filed in this case, commit error in charging the jury that the burden of proof was upon the plaintiff, nor in giving other instructions which might not have been appropriate if the plea could have been construed as a technical plea of justification.

Decided April 14, 1928.

Lowndes Calhoun, for plaintiff.

Aldine & Hewitt W. Chambers, for defendant.

4. In a suit for assault and battery, where the plaintiff, besides claiming (1) punitive damages, seeks also to recover (2) for the value of lost time and for medicine and physician’s bills, it is not error, as' against the plaintiff, for the court to instruct the jury substantially in the language of section 4502 of the Civil Code, the principle contained therein being pertinent at least in determining the right of the plaintiff to recover the latter class of damages, representing the pecuniary loss alleged to have been sustained as a result of the injury. County of Bibb v. Ham, 110 Ga. 340, 341 (35 S. E. 656); Ga. Ry. & Power Co. v. Howell, 28 Ga. App. 798(3) (113 S. E. 101).

5. Moreover, in the present case, the exception to the charge upon the subject of damages was predicated solely upon the theory that the defendant had filed such a plea of justification as relieved the plaintiff of the burden of proof; and since the plea can not be so construed, the assignment of error on this portion of the charge must necessarily fail. The same is true also of complaints as to certain omissions to charge.

6. There was evidence to warrant the court in charging the jury on the subject of opprobrious or abusive language as a defense or mitigation in an action of this sort. Hutcheson v. Browning, 34 Ga. App. 276(2) (129 S. E. 156). Although the evidence as to the language used by the plaintiff may not have conformed strictly to the allegations of the plea, yet since the evidence was admitted without objection and the plea could have been amended to cure the variance, a charge predicated upon the evidence alone was not cause for a new trial. Napier v. Strong, 19 Ga. App. 401(2) (91 S. E. 579).

7. The evidence authorized the verdict found in favor of the defendant, and there was no merit in any of the special assignments of error. The court did not err in ^refusing a new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


author: Stephens, J.

text:
    18568.
    DECATUR COUNTY v. O'NEAL et al.

      Decided April 14, 1928.

      II. G. Bell, Pollle & llofmayer, for plaintiff.

      G. G. Bower, B. G. Harlsfield, Hooper & Hooper, for defendants.
   Stephens, J.

(After stating the foregoing facts.) While all persons who deal with public officials are chargeable with the limitations imposed by law upon the powers of the officials, and where public money is, contrary to law, paid out by public officials, it may, in a proper suit, be recovered for the public benefit from any person to whom it has been paid, although, when receiving it he may have been in fact ignorant of the illegality of the payment, unless the person receiving the money may in equity and good conscience retain it, and the public can not in equity and good conscience be entitled to its return. Where public money has been paid for services rendered, which were in fact beneficial to the public, although the services were not applied to any purpose for which the public officers paying out the money could have lawfully contracted, yet, where the services were performed by the recipient of the money, and the money was paid to him for the services rendered under a bona fide agreement or arrangement between the officers representing the public and the recipient of the money, and the recipient was in fact ignorant of any illegality in the transaction, and where, by reason of such agreement and the payment and receipt of the money for such services, the recipient of the money failed to collect in whole or in part compensation for the services out of another fund upon which he could have drawn and which had since become exhausted, and where, by reason of the recipient having spent the funds so paid to him, he is placed in a situation where he can not refund the money without a detriment to himself greater than he would have incurred had the payment never been made to him, he, in equity and good conscience, notwithstanding any illegality in the transaction under which he received the money, can retain the funds. See, in this connection, 3 Williston on Contracts, 2812, 2816; Collier v. Perkerson, 31 Ga. 117; Strange v. Franklin, 126 Ga. 715 (55 S. E. 943); Watkins v. Stulb, 23 Ga. App. 181 (98 S. E. 94).

The denial of a right to recover under such circumstances is not predicated upon estoppel on the part of the public (which, under section 303 of the Civil Code, is not estopped by unauthorized acts of its agents), but is predicated upon the right of the recipient to retain the money, which he can in equity and good conscience do, and which money the public can not in equity and good conscience retake.

While the public may not be estopped by unauthorized acts of its agents, the public, when seeking a remedy against one who has profited by unauthorized acts of its agents, — as in a suit to recover funds which the defendant has received by virtue of .such unauthorized acts, — carries the burden, and can not recover except upon a right to retake the funds^ superior to the right of the defendant to retain them. The defendant is entitled to have his -rights respected in the situation in which he is found, and his right to retain the funds to which in equity and good conscience he is entitled is at least equal to the right of the plaintiff to repudiate the unauthorized acts of its agents. Where the rights of the plaintiff and the defendant ate equal, the law will leave the parties where it finds them. The right of the individual is as sacred as the right of the public, and the public can not enforce its right to repudiate the unauthorized act of its agents, at the expense of the equal, if not superior right of the individual in equity and good conscience to retain a benefit which he has received by virtue of the unauthorized act of the agents of the public.

The services performed by the solicitor in prosecuting the cases, even if they could not be legally contracted for by the county, were in fact beneficial to the county (Clark v. Reynolds, 136 Ga. 817, 824, 72 S. E. 254), and furnished a consideration for the money paid him by the county; and since, in receiving the payments made, he failed, in so far as the costs accruing to him in these eases were concerned, to participate in the fines and forfeitures fund, and since he has, in reliance upon the arrangement with the county by which these fees were paid to him, received the money and spent it, and therefore can not by restoring it be placed in as advantageous a situation as he would have occupied had he never received the money for his services, and since it does not appear that he acted in bad faith or knowingly participated in an illegal transaction, he can in equity and good conscience retain the money, and the county can not in equity and good conscience recover it, notwithstanding it may have been illegally paid out to the solicitor without authority on the part of the county commissioners to raise the money by taxation or to pay it out for the services rendered.

This opinion is not to be construed as holding that the tax levy or the agreement with the solicitor or the payment of the funds to the solicitor were illegal acts or beyond the lawful powers of the commissioners. But assuming, however, that any of these acts were illegal for the reason stated, we hold that under the facts as outlined in the headnote, which appear to be undisputed by the testimony, the judgment rendered for the defendant was as a matter of law demanded.

Under the view which we take of the law, the alleged errors in the admission of evidence need not be passed upon.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.


author: Bloodworth, J.

text:
    18132.
    HARPER, administratrix, v. SOUTHERN RAILWAY CO.
    Decided May 15, 1928.

      T. J. Lewis, A. B. Knoiules, Taylor Smith, for plaintiff.

      Lloyd Thomas, Griffith & Matthews, Maddox, Matthews & Owens, for defendant.
   Bloodworth, J.

While Judge Price Edwards, one of the judges of the superior courts of Georgia, was presiding over the superior court of Haralson county, one of the counties of his home circuit, the case of Mrs. Zether Harper, administratrix of the estate of W. T. Harper v. Southern Railway Company was tried, and a verdict was rendered and a judgment entered. The next week, while Judge James Maddox, of the Rome circuit, was presiding for Judge Edwards in the superior court of Haralson county, and while Judge Maddox was actually engaged in presiding over the trial of another case, or while the trial of the case was temporarily suspended, a motion for a new trial in the Harper case was presented to Judge Edwards “at the corner of the court grounds,” and he assumed jurisdiction of the motion, issued a rule nisi thereon, and ordered the plaintiff to show cause why a new trial should not be granted in the case. Mrs. Harper moved to dismiss the motion for a new trial, upon two grounds: first, “for the reason that the same has never been filed or become a court paper in the clerk’s office of said court as required by law;” second, because “at the time his honor Price Edwards, judge, granted a rule nisi on the motion for a new trial in the above cause, the Hon. Price Edwards, judge of the superior court of Haralson county, Georgia, was not presiding in Haralson superior court, but that Hon. James Maddox, of Rome, Georgia, was presiding in said court,” and “that said motion for a new trial should have been presented to his honor James Maddox, judge presiding in Haralson superior court at the time the same was applied for, to wit, on February 7, 1927, and not to his honor Price Edwards, as was done in said cause.” The question whether or not Judge Edwards properly assumed jurisdiction of the motion for a new trial was certified to the Supreme Court, and that court answered that “Judge Edwards had jurisdiction of the motion presented at the time and place and under the circumstances stated in the question.” See Harper v. Southern Ry. Co., 166 Ga. 175 (142 S. E. 873).

This answer settles one of the grounds of the motion to dismiss the motion for a new trial. Under the evidence introduced on the trial of the motion to dismiss, there is no merit in the other ground. Judge Edwards, therefore, properly overruled the motion to dismiss the motion for a new trial.

Judgment affirmed:■

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


author: Luke, J.

text:
    18781, 18782.
    TRADERS SECURITIES CO. v. CANTON DRUG CO.; and vice versa.

      Decided May 15, 1928.

      J. Glenn Giles, Morris, Hawlcins & Wallace, for plaintiff.

      Aldine & Hewett W. Chambers, A. J. Henderson, for defendant.
   Luke, J.

Traders Securities Company sued Canton Drug Company on three “trade acceptances,” payable February 25, 1925, 'April 25, 1925, and July 25, 1925, respectively, and “exactly similar” except as to their dates of maturity. The copy of the first acceptance set out in the petition follows:

“Trade Acceptance.”
“$59.60. St. Louis, Mo., July 25, 1924. No. 12809.
“Seven months after date, pay to the order of ourselves, at our office at St. Louis, Mo., fifty-nine and 60/100 dollars.- The obligation of the acceptor hereof arises out of the purchase of goods from the drawer.
[Signed] Blackstad, Inc.
“To Canton Drug Company, Canton, Ga.
Due Feb. 25, 1925.”

The following words are written across the face of the paper: “Accepted. Canton Drug Co., W. W. F.;” and on the back of the acceptance appears the following: “Pay to the order of Traders Securities Co. Blackstad, Inc., per W. A. Blackstad, President.” Paragraph 7 of the petition follows: “Plaintiff shows further that each of said acceptances herein referred to were, before the maturity thereof, for value, transferred and assigned by the payee therein to the plaintiff herein, and that the plaintiff is now the holder and owner thereof.”

The defendant denied indebtedness, denied the allegations of paragraph 7 of the petition, and pleaded that on July 25, 1924, it made five trade acceptances aggregating $298, given Blackstad, Inc., for a lot of jewelry, represented in a schedule to be merchantable at certain prices listed therein; that when the jewelry was shipped, the defendant learned that it was “worthless, made of all sorts of inferior metals, tarnished, turned black, and was not suited for the purposes intended;” that the few sales made of it injured defendant’s business; that upon learning that the jewelry was worthless the defendant returned it to the seller; that “before the discovery of the fraud” the defendant sold $42.20 worth of the jewelry, but returned the remainder; that the defendant had already paid said company $119.20; that “the entire plan of said company for the advertising and sale of the jewelry . . was a scheme to cheat and swindle” the- defendant; that if the plaintifE has said acceptances as alleged, “the same were received by it for the purpose of aiding and abetting the perpetration of the fraud upon the defendant;” that the same, if transferred as alleged, were so transferred in order that the defendant should be shut off from its defense of failure of consideration; and that if the plaintiff has such acceptances, it took them with full knowledge and notice of the worthlessness of the goods for which they were given.

The jury found for the defendant, and Traders Securities Company assigns error upon the overruling of its motion for a new trial, based upon the general grounds. Canton Drug Company, by cross-bill of exceptions, alleges that the court erred in admitting the said acceptances in evidence.

We shall first consider the cross-bill. The ruling of the trial judge as therein complained of can not be considered by this court, for the reason that the assignment of error, complaining of the admission of documentary evidence, does not set out the evidence, either in form or in substance.

At this stage of our discussion, then, Traders Securities Company is presumed to be the holder of the said acceptances bona fide and for value; but Canton Drug Company, as it has the right to do, pleads, and undertakes to prove, fraud in the procurement of the acceptances (Civil Code of 1910, § 4288), in order to let in its defense of failure of consideration. Civil Code (1910), § 4290. Of course, if the plaintiff acquired title to the acceptances or to any one of them after maturity, it took subject to all the equities existing between the original parties, and was not a bona fide purchaser (Civil Code, § 4287); and the plea and answer presents this defense. See also Parker v. Daniel, 16 Ga. App. 23 (84 S. E. 483).

Frank Coffman, who was secretary and treasurer of Traders Securities Company and at times acted as its attorney, testified that his company was in the business of buying and selling commercial paper of all kinds; that it did not finance Blackstad, Inc., and that its only connection with the latter was that at times it bought its papers outright and for value at a discount; that on September 8, 1924, his company, acting through him, bought from Blackstad, Inc., five trade acceptances, due respectively three, five, seven, nine, and twelve months after date; that the first two of said acceptances were paid through American Trust Company, to whom they were given for collection, but that the last three were not paid; that each acceptance was for the principal sum of $59.60; that neither Traders Securities Company nor the witness had any knowledge whatsoever of any infirmity or defect in the acceptances, or of any defense to them, either prior to or at the time of the purchase; that the papers were purchased for $268.20, and that the three sued on represented three fifths of that amount; that he had no connection, personal, financial, or official, with Blackstad, Inc., and that the stockholders of one company were not the stockholders of the other; that the Traders Securities Company “did not advise Blackstad, Inc., on March 11, 1925, that the defendant failed and refused to pay the trade acceptances which had become due,” and “Blackstad, Inc., did not at that time advise us that the defendant had refused to pay for the balance of the jewelry; there was no conversation of that kind,” and “we did not know that Blackstad, Inc., was engaged exclusively in selling jewelry under a plan of installment payment;” and that the acceptances sued on were the only ones his company had received from Blackstad, Inc., that it had not been able to collect from the maker, and that approximately five per cent, of his company’s business was with that concern.

It appears from the record that the acceptances sued on were similar, except as to due dates, and as to the fact that the one due February 25, 1925, had “also on the back thereof indorsement of American Trust Company scratched out with pencil, the name Traders Securities Co.’ being stamped in the blank space in the indorsement in ink of different color from that used in the other words of indorsement.”

W. F. Fincher, manager of Canton Drug Company, testified that he had no notice from Traders Securities Company that it had the acceptances, until suit was filed; that he paid two of the acceptances by check sent direct to American Trust Company, these checks being dated respectively October 28, 1924, and December 23, 1924, payable to American Trust Co., signed “Canton Drug Co., by W. W. F.;” that the two acceptance paid had on them an indorsement in blank of Blackstad, Inc., and the indorsement of the American Trust Company; that before the acceptance maturing in February, 1925, became due, he received a notice from American Trust Company, of St. Louis, that it would soon become due; that he did not receive any notice from any other person .or corporation of the acceptances becoming due, or that any other person was holding the acceptances for collection, until after the refusal of Canton Drug Company to pay said acceptance; that not until after the third acceptance became due and Canton Drug Company refused to pay it did Blackstad, Inc., indirectly notify the defendant in error that it had sold the acceptances; that the jewelry for which the acceptances were given was “too high, was not as the salesman represented it to be, and would not sell;” that his concern sold about $30 worth of the jewelry at about half cost; that some of the ear-bobs were torn up, and were not worth anything like their cost of fifty cents'each; that Canton Drug Company had on hand about $53 worth of jewelry, according to the valuation of the seller; that this jewelry was kept because Canton Drug Company lacked about $30 or $40 of getting value received for the money paid by it on the first two of the original five acceptances; and that the balance of the jewelry had been returned to the seller, which had it, the witness supposed.

The first of the two acceptances paid was identified by the witness Fincher as having been paid by him with check of Canton Drug Company, dated October 28, 1924. This acceptance, which was introduced in evidence was identical in language with those sued on, except as to due date and had an entry on the face thereof, “Paid 10/31.24. American Trust Co., St. Louis.” The following indorsements appeared on the back of the paper: “Pay to the order of-Blackstad, Inc., per W. A. Blackstad,” and “Pay to the order of any bank or banker. All prior indorsements guaranteed. American Trust Co. 4/2, St. Louis, Mo., 0. L. Sager, Treasurer.”

The letter of February 12, 1925, written by Canton Drug Company to American Trust Company, follows: “We received your notice of trade acceptance you hold against us. We have to-day returned to Blackstad, Inc., the jewelry for which these trade acceptanees were given. The jewelry was not salable here, and his prices were not in line; so we have returned it to them, with instructions to send'us something worth the money, or we would have to stop payment on same. If they send goods that look like they have something like the value represented, we will continue payment; if not, we will be forced to protect ourselves.”

The letter of February.23, 1925, written by Canton Drug Company to Blackstad, Inc., acknowledged receipt of $94.62 worth of jewelry, complained of certain errors in the credit invoice, inquired what “exchange credit” meant, stated that it had paid two acceptances aggregating $119.20, and had returned $265.45 worth of merchandise, and offered to “call it square.”

On March 5, 1925, Blackstad, Inc., replying to the foregoing letter, offered to exchange jewelry, but declined to accept any goods as a credit.

On March 11, 1925, Blackstad, Inc., wrote Canton Drug Company the following letter: “We have an inquiry from the Traders Securities Co., of this city, who discounted for us your five trade acceptances for $59.60 each. They advise us that they have been depositing your acceptances as they came due with the American Trust Co., of this city, for collection. The American Trust Co. failed to receive a check for your Feb. 25th acceptance, and forwarded the same to a local bank in your community, where it would be more convenient for payment, but up to date they state that no remittance has been received. The Blackstad, Inc., finds it necessary now and. then to discount some of its paper in order to buy advantageously for- cash large purchases of merchandise when the opportunity affords, and also to enable us to extend longtime payments to our customers. We desire greatly to have you sustain the high standing that our inquiries justified us in assuming, and hope that you will take care of this past-due paper without further delay.”

On March 13, 1925, Canton Drug Company wrote to Blackstad, Inc., that it had paid $119.20; that it had returned the jewelry, and that it was willing to take a loss, and suggested that if this was not satisfactory, further correspondence be had with attorney Henderson, who had the files in charge.

The •defendáfit contends that the fact that the indorsement of American Trust Company had been scratched off the acceptance due February 25, 1925, and that “Traders Securities Co.” was stamped over the blank indorsement thereon in ink differing in color from the remainder of the indorsement (see prior statement of evidence), indicated that something was wrong with the transfer, and that it was made after the maturity of the paper. The defendant contends also that it had not been advised of any transfer of the papers until after it had notified both the bank and Blackstad, Inc., of its dissatisfaction with the jewelry; that the letter of .Blackstad, Inc., of March 11, 1925, clearly showed that that concern and Traders Securities Company “had their heads together” about the acceptances and that Blackstad, Inc., had a lively interest in the transferred acceptances, — that for these, and other reasons indicated by the evidence, the plaintiff was not an innocent purchaser for value.

Of course, fraud in the procurement of a note has no reference to fraud in the contract out of which the note arose, but refers only to fraud on the part of the holder in obtaining it. Harrell v. National Bank of Commerce, 128 Ga. 504 (57 S. E. 869); Hope v. Hedgerose Heights Co., 19 Ga. App. 10 (4) (90 S. E. 731); Brantley v. Merchants and Farmers Bank, 22 Ga. App. 667 (2) (97 S. E. 109). “Fraud may not be presumed, but, being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence.” Civil Code (1910), § 4626. “Any circumstance which would place a prudent man upon his guard, in purchasing negotiable paper, shall be sufficient to constitute notice to a purchaser of such paper before it is due.” Civil Code, § 4291; Fidelity Trust Co. v. Mays, 142 Ga. 821 (83 S. E. 961). However, the circumstances relied on to overcome the presumption that one is the bona fide holder of a negotiable paper must have some probative force. To this effect see Edwards & Deutsch Lithographing Co. v. Vidalia Grocery Co., 144 Ga. 514 (87 S. E. 675).

Neither the fact that the indorsement of the collecting bank had been scratched off a negotiable paper to which it appeared likely there was to be a defense, nor the fact that the blank indorsement had been completed by the insertion of the name of the transferee, shows fraud in the procurement of the paper, or indicates that the transfer of the acceptance was made after maturity. Of course, the fact that Canton Drug Company had not been notified of the transfer of the papers is not indicative of fraud in the procurement of them. Tuck v. National Bank of Athens, 108 Ga. 446 (33 S. E. 983). Nor do we think that the letter of Blackstad, Inc., requesting Canton Drug Company to pay the acceptances was indicative of the fraud alleged. It appears from the evidence that Blackstad, Inc., often discounted its papers to Traders Securities Company, and it is quite natural that Blackstad, Inc., preferred that its discounted papers be paid. Furthermore, Blackstad, Inc., was liable on the acceptances as indorser. We are aware of the fact this question has been decided by a jury, yet our opinion, from a careful study of the record, is that the evidence raises no fair inference of the alleged mala tides of the transaction.

The Traders Securities Company being a bona fide purchaser before maturity of the trade acceptances, it was protected against the defense of failure of consideration, and that phase of the defense needs no discussion.

The court erred in overruling the plaintiff’s motion for a new trial.

Judgment on the main hill of exceptions reversed; on cross-hill affirmed.

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


text:
    18783.
    Fuller v. Watkins.
    Decided May 15, 1928.

      J. F. Kelley, for plaintiff in error. T. G. Borough, contra.
   Bloodworth, J.

1. The court did not err in striking the “answer and plea, upon the ground that no legal defense to the suit is set forth in same.”

2. The plea having been stricken and the petition being properly paragraphed, the allegations of the petition are to be taken as true; and, being thus taken, they required the verdict which the court directed.

Judgment affirmed.

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


author: Broyles, C. J.

text:
    18784.
    Miller et al. v. Hubbell et al.

   Broyles, C. J.

1. The demurrer to the amended petition was properly overruled.

2. The disallowance of the amendment to the answer was not error.

Decided May 15, 1928.

Martin, Martin & Snotu, for plaintiffs in error.

Jones, Jones & Johnston, contra.

3. Under the facts of the case as disclosed by the record the various assignments of error upon rulings as to the admissibility of evidence are without merit, and the evidence demanded the verdict directed.

Judgment affirmed.

Luke cmd Bloodworth, JJ., eoneur.


text:
    18786.
    Thomas v. The State.
    Decided May 15, 1928.
    Rehearing denied June 12, 1928.

      Jule W. Felton, for plaintiff in error.

      Jule Felton, solicitor-general, contra.
   Bloodworth, J.

1. When all the facts and circumstances of the case, including the note of the trial judge to the ground of the amendment to the motion for a new trial, are considered, the judge did not err in instructing the jury, as set out in the amendment, that “under the prohibition law of this State, if there be found upon the premises or land which one is in the actual possession of a still, the presumption of law is that the still belongs to the one in the actual possession of the land. However, that’s not a conclusive presumption; it may be rebutted,” etc.

2. The evidence was sufficient to authorize the jury to reach the conclusion that the accused was guilty, and so to find, and, the trial judge having approved of that finding, this court cannot interfere, as no error of law was shown to have been committed on the trial.

Judgment affirmed.

Broyles, O. J., cmd Luke, J., eoneur.


text:
    18787.
    Crummey v. The State.
    Decided May 15, 1928.

      H. H. Elders, J. B. Moore, for plaintiff in error.

      W. B. Gills, solicitor-general, contra.
   Broyles, C. J.

1. The refusal of oral requests to charge is never error. Under this ruling the special grounds of the motion for a new trial are without merit.

2 The verdict was amply authorized by the evidence.

Judgment affirmed.

Luke and Bloodworth, J.J., eoneitr.


text:
    18788.
    Tooke v. The State.
    Decided May 15, 1928.

      J ohn M. Greer, for plaintiff in error.

      Jule Felton, solicitor-general, contra.
   Luke, J.

1. The general grounds of the motion for a new trial aré not argued or referred to in the brief of counsel for the plaintiff in error, and are treated as abandoned.

2. There is no merit in grounds 1, 2, 3, and 4 of the special assignments of error; and since, in the light of his note attached thereto, the trial judge does not approve of the fifth and last special ground, this court will not consider it. ■

Judgment affirmed-

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


text:
    18789.
    BOSWELL et al. v. BOSWELL.
    Decided May 15, 1928.

      Joseph G. Fcmst, John 8. Callaway, for plaintiffs in error.

      Noel P. Parle, contra.
   Luke, J.

Mrs. Boswell recovered a judgment for $175 against E. T. Boswell Sr. and E. T. Boswell Jr., because of the alleged negligence of one Peter Johnson in driving a lumher-truck into the Eord roadster that the plaintiff was driving; it being alleged that at the time of the collision the said Johnson “was in the employ of and engaged in the business of E. T. Boswell Sr. and E. T. Boswell Jr.” E. T. Boswell Jr. denied liability, and pleaded that the collision was an unavoidable accident. E. T. Boswell Sr, denied the material allegations of the petition, and further pleaded: that he was in no way connected with the sawmill business of E. T. Boswell Jr. or with the operation of the said truck; that Johnson was not employed by him, and was not operating the truck for him or under his direction; and that he had no interest in the truck or the driving of the same by Johnson.

1. The evidence as to the injuries was clear; and, upon conflicting evidence,' it was the jury’s right to conclude that the collision was not an accident, but the result of the negligence of the driver of the truck.

2. The amendment to the motion for a new trial, which deals entirely with alleged errors in the charge of the court, discloses no reversible error.

3. Under all the facts and circumstances of the case, the jury had the right to conclude that both of the defendants were responsible for the negligence of the truck-driver.

4. It follows that the court committed no error in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. Jand Bloodworth, J., c'oncur.


author: Blood worth, J.

text:
    18790.
    ROSS v. RICHARDSON.
    Decided May 15, 1928.

      Hatcher & Hatcher, for plaintiff in error.

      Neill & McGee, contra.
   Blood worth, J.

(After stating the foregoing facts.) The only point insisted upon in the brief of the plaintiff in error is that “he had the right to support his child at his own fireside, and that his wife, who wrongfully took the child away from his home, can not recover from him money which she voluntarily expended for the support of the child.” Under the facts stated in the petition, there is no merit in this contention. Section 3020 of the Civil Code of 1910 provides that “Until majority, it is the duty of the father to provide for the maintenance, protection, and education of his child.” These words are clear and unequivocal and make it the absolute duty of the father “to provide for the maintenance, protection, and education of his child” until the child reaches its majority. In the brief of counsel for the plaintiff in error it is stated that “it is not contended that he is not legally bound to support his child, nor that the divorce affected his legal obligation to do so, nor is it contended that a third person who did not take the child away from his home can not recover from him the value of necessaries furnished to the child if the child was destitute.” The fact that at the time of the separation the mother “carried with her the then infant child about one year of age,” and has since kept her, will not have the effect of abrogating the law which requires the father to support the child. Strong support for the ruling of the judge in overruling the demurrer is found in the following cases: In Smith v. Smith, 136 Ga. 531, 533 (71 S. E. 869), Mr. Justice Beck said: “A wife can not separate from her husband or live in a state of separation from him, take charge of the minor children, and maintain a suit against the husband for necessaries furnished them. If the husband had made no adequate provision for the support and maintenance of the children, and a stranger had furnished them the necessaries of life, he could maintain a suit against the deliquent father for the cost and value of the necessaries furnished; or a divorced wife, after the dissolution of the bond of marriage between herself and husband, where no provision had been made for the support of her minor children, might, just as a stranger (for after divorce she would be a stranger), maintain an action against her former husband for necessary expenses incurred in maintaining and nourishing their minor children. Brown v. Brown, 132 Ga. 712 (64 S. E. 1092, 131 Am. St. R. 229).” In the Brown ease, just cited, the first headnote is as follows: “Where the wife, on account of the misconduct of the husband, obtains a decree granting her a divorce and awarding to her the custody of their minor child, and no question as to the support of such child by the father has been made or passed on, the father is not relieved of his legal obligation for a proper support of the child. If he fails or refuses to discharge this obligation, the mother, in an original action, may recover of the father the amount of expenditures made by her after such decree, for a proper support of such child.” In Waller v. Waller, 163 Ga. 377, 380 (136 S. E. 149), Chief Justice Russell said: “As the father is by law required to support the child, unless by some judgment otherwise the mother has assumed or placed upon her the liability for its support, it seems plain that the trial judge did not err in granting the judgment allowed in this case. No misconduct of the mother will deprive an infant of its right to be supported by its father. Likewise, such infant can not be debarred of its rights in this respect by any judgment against its mother, even though incidentally and practically such infant might have been in a degree affected by the result of the judgment against its mother. So we hold that even though a mother might be altogether deprived of any right to alimony, no matter upon what grounds the judgment might be predicated, such wife and mother, having the custody of a child of her husband, and who is living separate and apart from her husband, is entitled to apply for alimony for the support of such child.”

Judgment affirmed.

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


author: Broyles, O. J.

text:
    18791.
    Lane v. Farmers & Merchants Bank of Garfield, Ga.
    Decided May 15, 1928.
   Broyles, O. J.

The petition as amended was subject to general demurrer, and the court did not err in so holding and in dismissing the ease.

Judgment affirmed.

Ltilce and Bloodworth, JJ., concur.

Alfred Herrington Jr., for plaintiff.

A. S. Bradley, for defendant.


text:
    18792.
    North Carolina Mutual Life Insurance Co. v. Evans.
    Decided May 15, 1928.

      S. B. Lippitt, for plaintiff in error,
    cited: 119 Ga. 457; 22 Fed. (2d Series) 136, 139; 86 U. S. 531.

      W. H. Burt, contra,
    cited: 1 C. J. 457; 24 A. L. R. 274, 976; 129 Ga. 195, 199; 86 U. S. 531.
   Luke, J.

Where an action is brought on a life-insurance policy providing that the insurance company “shall not be liable for death occurring while in the commission of, or as a punishment for, some act in violation of any law, nor shall it be liable for death resulting from the malicious or unlawful act or the culpable or intentional negligence of the insured or beneficiary hereunder,” and the defendant pleads that the death of the insured resulted from his unlawful conduct in pointing his pistol at his slayer and precipitating the difficulty in which he was slain, and the uncontradicted evidence sustains the plea, there can be no recovery.

[a) Stipulations like the one set out above must be construed reasonably, and the insurance company is not absolved from liability unless the death of the insured is the reasonable and legitimate consequence of the unlawful act.

The court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, O'. J., and BloocUvorth, J., concur.


text:
    18793.
    ROSS v. WILLIAMS MANUFACTURING COMPANY.
    Decided May 15, 1928.

      Brock, Sparks & Bussell, for plaintiff in error.

      Jones, Jones & Johnston, contra.
   Bloodworth, J.

(After stating the foregoing facts.) In addition to the foregoing statement of facts, particular attention is called to the 19th paragraph of the petition, which alleges that “petitioner charges that the fire from the lumber plant of said Joe Hadaritz would not have spread to your petitioner’s property, and would not have injured or damaged any of your petitioner’s property, except for the lumber piled on your petitioner’s property by defendant’s agents and employees;” and to the fact that the petition further alleges that by reason of said lumber being piled by the defendant on the plaintiff’s land, the plaintiff was injured and damaged by fire. It will thus be seen that the plaintiff has plainly alleged that the pile of lumber caused the plaintiff’s damage, and that the plaintiff would not have been damaged had it not been for the pile of lumber placed there by defendant. The petition shows that the defendant was guilty of the breach of a legal duty, which caused the plaintiff’s injury and without which the plaintiff would not have been injured. The trespass of leaving the lumber on the plaintiff’s land after notice to remove it was a continuing one, and was being committed at the very moment that the fire in the Hadaritz mill started. Counsel for the plaintiff in error'in his brief says: “This case involves a single issue. What was the proximate cause of the' damage to the plaintiff’s property ? The plaintiff in error says that the legal cause of this loss was the act or omission of third persons. This is disputed by defendant in error. In Georgia Railway & Power Co. v. Ryan, 24 Ga. App. 289 [100 S. E. 713], the court said: No general yet precise and inflexible rule can be laid down with reference to the highly involved and much-discussed subject as to what constitutes the proximate" cause of an injury. Consequently each case must depend for solution upon its own particular facts; but it is a well settled principle of law that where two concurrent causes operate directly in bringing about an injury, there can be a recovery against either one or both of the responsible parties. The mere fact that the injury would not have been sustained had only one of the acts of negligence occurred will not of itself operate to define and limit the other act as constituting the proximate cause, for if both acts of negligence contributed directly and concurrently in bringing about the injury, they together will constitute the proximate cause. Barrett v. Savannah, 9 Ga. App. 642 (72 S. E. 49); Bonner v. Standard Oil Co., 22 Ga. App. 532 (96 S. E. 573), and cases cited. The determination of questions as to negligence lies peculiarly within the province of the jury, and in the exercise of this function the question as to what constitutes the proximate cause of an injury complained of may be directly involved as one of the essential elements and disputed issues in the ascertainment of what negligence, as well as whose negligence, the injury is properly attributable to. White v. Seaboard Air-Line Ry., 14 Ga. App. 139 (80 S. E. 667). It was not error, therefore, for the judge to overrule the railway company’s demurrer to the petition, since it was properly a question of fact, for the jury to determine from the evidence, whether the defendants were guilty of negligence in any of the particulars charged, and, if so, whether the concurrent acts of negligence of both wrongdoers, or the separate acts of either of them, constituted the proximate cause of the injury.’ ”

Applying to this case the principles announced in the above quotation and the cases cited therein, this court will not say that the judge erred in overruling the demurrer to the petition.

Judgment affirmed.

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


author: Bloodwobtii, J.

text:
    18794.
    Reed v. The State.
    Decided May 15, 1928.

      Tyson & Tyson, for plaintiff in error.

      J. T. Grice, solicitor-general, contra.
   Bloodwobtii, J.

The evidence authorized the verdict, and the motion for a new trial, based on the general grounds only, was properly overruled.

Judgment affirmed.

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


text:
    18795.
    Phillips v. The State.
    Decided May 15, 1928.
   Broyles, C. J.

1. The evidence amply authorized the jury to find that the plaintiff in error and his codefendants entered into a conspiracy to commit the robbery charged. Under tuis ruling the admission of the evidence and the charge of the court complained of in the motion for a new trial were not error for any reason assigned.

2. The alleged newly discovered evidence is cumulative and impeaching, and is not of such a character as would probably produce a different verdict upon another trial.

3. The verdict was authorized by the evidence and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

H. E. Elders, O. L. Gowari, for plaintiff in error.

J. T. Grice, solicitor-general, contra.


author: Broyles/ C. J.

text:
    18796.
    Hartford Accident & Indemnity Co. et al. v. Durden.
    Decided May 15, 1928.

      Stoddard & Brahe, for plaintiffs in error.

      Price, Spwey & Edenfield, contra.
   Broyles/ C. J.

Under the facts of the case as disclosed by the record, the commissioner hearing the case was authorized to find: first, that the relationship of employer and employee existed between the Town of Adrian and the deceased minor son of the claimant, Durden; secondly, that the claimant was partially dependent upon the earnings of the son for the support of himself and his family; and thirdly, that the son lost his life as the result of an accident arising out of and in the course of his employment by the Town of Adrian. The evidence authorized the award made by the commissioner and affirmed by the full commission. It follows that the judge of the superior court did not err in affirming the finding and judgment of the industrial commission.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    18801.
    CARTER v. THE STATE.
    Decided May 15, 1928.

      G. L. Cowart, for plaintiff in error.

      M. W. Eason, solicitor, contra.
   Luke, J.

Carter was convicted of violating that portion of the motor-vehicle law which provides that “no person shall take, use or operate any motor-vehicle or motorcycle upon the public streets and highways, without the permission of the owner.” Ga. L. 1921, p. 255, sec. 6 (8 Park’s Code Supp. 1922, § 828 (uu-1); Michie’s Code (1926), § 1770(56)). It appears from the record in the case that the jury had the right to believe that, on a certain Saturday afternoon, the defendant rented an automobile from one Banks for $2, under a distinct agreement to return the automobile within two hours; and that he drove the automobile into an adjoining county, and kept it Saturday night and all day Sunday, and that sometime Sunday night he left it in front of Smith Motor Company’s place of business, where the owner found it on the following Monday morning with two tires damaged.

The evidence sustains the conviction, and the court did not err in overruling the motion for a new trial, based solely upon the usual general grounds.

Judgment affirmed.

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


author: Bioodwoeth, J.

text:
    18802.
    Goodwyne v. The State.
   Bioodwoeth, J.

1. The court did uot err in overruling the demurrer to the indictment.

2. Grounds 6 and 8 of the motion for a new trial are not approved and can not be considered by this court. Moore v. State, 27 Ga. App. 781(4) (110 S.E. 55); Durrett v. McWhorter, 161 Ga. 179, 186 (10) (129 S. E. 870).

3. “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 a ground for a new trial, in the absence of an appropriate and timely written request for such explanation.” Holmes v. Clisby, 121 Ga. 241(7) (48 S. E. 934, 104 Am. St. R. 103). See also Pickens v. State, 132 Ga. 46 (63 S. E. 783). There was no request for an explanation of the alleged technical terms in the charge under consideration, and the failure of the judge to explain them will not require a reversal of the judgment.

4. “Eailure to charge the jury on the law of circumstantial evidence, when there is no request for such a charge, .is not ground for a new trial in a case in which a conviction is not wholly dependent on such evidence.” Tanksley v. State, 35 Ga. App. 189 (132 S. E. 263). The conviction in the case under consideration is not wholly dependent on circumstantial evidence, and there was no request for instructions thereon..

5. “It is not error requiring a new trial to fail to charge upon the subject of the burden of proof, when there is no written request for such an instruction. Brooks v. Griffin, 10 Ga. App. 498(5) (73 S. E. 761)”. Whittle v. Central of Ga. Ry. Co., 11 Ga. App. 257 (74 S. E. 1100). “The failure to charge upon the subject of impeachment of witnesses is not cause for the grant of a new trial, in the absence of an appropriate timely written request to instruct them in reference thereto. Brown v. State, 138 Ga. 814 (76 S. E. 379).” Dean v. State, 139 Ga. 591 (77 S. E. 818). Under the foregoing decisions there is no merit in the 10th ground of the motion.

Decided May 15, 1928.

Boy B. Friedin, for plaintiff in error.

T. Hoyt Davis, solicitor-general, contra.

C. The court instructed the jury as follows: “The jury are the judges of the evidence, the weight of the evidence and the credibility of all the witnesses testifying in the case. It is for the jury to say what weight and what credit they will give to the testimony of each and all of the witnesses in the case.” This charge was not error for any reason alleged. It does not “in effect instruct the jury to disregard the defendant’s statement.” The court charged as to the presumption of innocence and the statute allowing the defendant to make a statement. Mulligan v. State, 18 Ga. App. 464(2) (89 S. E. 541).

7. Under the facts of this case there is no merit in the attack made on the excerpt from the charge embraced in ground 12 of the motion for a new trial.

8. Even if it should be conceded that the excerpt from the charge which is quoted in ground 13 of the motion is erroneous, the error is not so material as to require a new trial of the case. The judge had concluded his general charge, and the instructions here complained of were given after a verdict of guilty had been returned and in connection with an instruction as to the duty of the jury to fix the minimum and 'maximum term of service in such cases. Injury as well as error must be shown before a new trial will be granted.

9. The evidence fully authorized, if it did not demand, the verdict rendered. Judgment affirmed.

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


text:
    18803.
    Wise v. The State.
    Decided May 15, 1928.
   Broyles, C. J.

The defendant’s conviction of the offense charged was not authorized by the evidence adduced, and the refusal to grant him a new trial was error.

Judgment reversed.

Luke and Bloodworth, J.J., concur.

Joel B. Mallet, for plaintiff in error.

Frank B. Willingham, solicitor-general, contra.


text:
    18804.
    MASSEY v. WINCHESTER.
    Decided May 15, 1928.
    Reheaking denied June 12, 1928.

      E. F. Goodrum, for plaintiff in error.
    Brock, Sparks & Bussell, contra.
   Luke, J.

(After stating the foregoing facts.) From the foregoing statement it will be seen that after Massey was adjudicated a bankrupt he and Winchester made an oral agreement under which Massey retained the real estate and agreed to execute the written contract already in writing. The question for determination is, was this agreement a parol promise to pay a debt dischargable in bankruptcy and void under § 4384 of the Civil Code of 1910, or was it a new agreement based on a valid consideration, possessing the requisites of a valid contract, and enforceable?

Had Winchester foreclosed his security deed and the foreclosure still left a part of the debt unpaid, and this debt had been listed by Massey as a liability, and Massey had been discharged in bankruptcy, the debt could not have been rendered enforceable after Massey’s discharge, except by a written promise to pay the same. But such was not the case. The bankruptcy court recognized that Massey had given to Winchester a security deed to the property, and that Massey had no equity therein which would inure to the benefit of his creditors, and the real estate was turned back to Massey by the bankrupt court as burdensome property, or, in other words, property which was unprofitable to Massey’s creditors, and therefore such property as the bankrupt court would not handle, and there was not even an appointment of a trustee.

After the defendant was adjudicated a bankrupt and after he failed to pay the note due on January 11, “the plaintiff approached defendant with the view of arranging to take back the said real estate and to have the defendant vacate the same without the necessity of a foreclosure of the said security deed.” The agreed statement of facts shows this, and therefore it is undisputed that it was when the defendant was confronted with the necessity of making some arrangement or losing possession of the property that he “entered into a verbal contract by the terms of which it was agreed that inasmuch as the said real estate had been turned back to the defendant as burdensome, the said defendant would continue in possession of the same and complete and carry out his contract of purchase as evidenced by the notes and the security deed.” The defendant had not been discharged in bankruptcy at the time of this new agreement, and even if he had been discharged, such discharge would not extinguish the old debt, but would operate only as a bar to an action thereon, and thus go merely to the remedy. Black on Bankruptcy, § 710. The parties merely agreed to continue a written contract, and this agreement was itself a contract between two persons capacitated to contract to do a specified thing, and both parties assented thereto, and there was a consideration therefor. In other words, since the writing already in existence embodied the terms of their new contract, they made an oral agreement to adopt the already written contract as the new contract, instead of rewriting that which was already written. Section 4384 of the Civil Code, relied upon by the defendant, provides that “no promise made after discharge in bankruptcy” shall be valid unless in writing; and the record shows that this new agreement was made before the defendant was discharged in bankruptcy, and possessed all the requisites of a valid contract.

It may reasonably be presumed, from the fact that Massey made the new agreement, that he desired to hold the property, as by doing nothing he would have lost it. Under the new agreement Winchester arranged with the bank for the reestablishment and reinstatement of the notes and the security deed and he arranged for Massey to remain in possession of the property; he arranged with the bank that the notes would be due on their maturity dates instead of all at once, as they were due immediately prior to the new agreement; he gave up his right to foreclose or have the bank foreclose at that time. This constituted a valid consideration, flowing from Winchester to Massey, and this new consideration went to Massey after he had been adjudicated a bankrupt. There is no law to prevent contracting by one who has been adjudicated a bankrupt and has not been discharged, and Massey so contracted. 7 Corpus Juris, p. 399, sec. 714. Winchester fully performed his part of the new contract, and Massey, by virtue of the new contract, remained in possession of the property and partially performed the new contract by paying three monthly notes after the new agreement was made. Under § 3223 (2, 3) of the Civil Code, the statute of frauds does not apply “where there has been performance on one side, accepted by the other in accordance with the contract,” and “where there has been such part performance of the contract as would render it a fraud of the party refusing to comply, if the court did not compel a performance.” It is shown by the agreed statement of facts that the defendant made partial payments on the realty, and remained in actual possession thereof, with the consent of the vendor, from the time of the new agreement, and that during all of this time a portion of the real estate was subrented at the rate of $28 per month, and the defendant received the benefit of the rental. Undoubtedly, as long as Massey remained in 'possession and paid the notes under the new agreement, neither Winchester nor the bank could have ousted him; and if the new agreement was enforceable by Massey, it was likewise enforceable by Win-Chester, as the law does not sanction unilateral contracts. See, in this connection, Kinderland v. Kirk, 131 Ga. 454(2) (62 S. E. 582); Vanduzer v. Christian, 30 Ga. 336.

In Fairmont Creamery Co. v. Collier, 21 Ga. App. 87 (94 S. E. 56), the company sued Spratling as principal and Collier as surety on a bond given for the faithful performance of Spratling’s duties as the plaintiff’s agent. In answer to the suit it was pleaded that a part of the debt sued upon represented a claim for a part of Spratling’s commissions, to be applied on an old debt due by him to the company, and that since the creation of the old debt he had been adjudicated a bankrupt, and his discharge extinguished that debt. The record shows that before and after his bankruptcy the company had been deducting regularly a certain amount of Spratling’s commissions and applying it on his old debt to the company, and that Spratling acquiesced in this deduction after he was adjudicated a bankrupt. This court held that literally a discharge in bankruptcy does not extinguish a debt, but “strictly speaking only operates as a bar to an action on the debt, and thus goes merely to the remedy.” And the court said (p. 92): “We can see no reason why the parties to the agreement might not, if they both see fit, continue its operation; and in so far as they might actually do so by acquiescence in its terms and performance of its conditions, we think such conduct amounts to an election to treat the contract as valid and still subsisting. This appears to have been done in the instant case, since after bankruptcy Spratling continued in the employ of the company as usual, received his statement each month containing the- item Credited to your account -dollars,’ as theretofore, cashed his check with the one half cent per pound deducted by the company, and made no complaint or suggestion that because of bankruptcy he no longer was under obligation to have the one cent per pound thus applied, until after the termination of his contract with plaintiff on September 14, 1924. We think this amounted to such acquiescence and performance on the part of each of the parties as would operate to keep the original contract of force. If the effect of such acquiescence could be taken as setting up a new agreement upon the same terms as the old, and so performed, the effect would be the same, at least so far as the principal defendant is concerned.” The case now under consideration is even stronger than that case. In both cases there ivas a written agreement before adjudication in bankruptcy, and no new writing after adjudication; but in that case the new agreement or continuance of the old agreement was merely by acquiescence, while in the instant case there was an express agreement by the defendant. See, in this connection, Kessler v. Slappey, 34 Ga. App. 614, 619, 620 (130 S. E. 921).

Under the foregoing authority and the particular facts of this case we rule as stated in the headnotes.

Judgment affirmed.

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


author: Bloodwobth, J.

text:
    18805.
    Rhyne et al. v. Moshell.
    Decided May 15, 1928.

      Whitalcer & Whitaker, for plaintiffs in error.

      Finley & Henson, contra.
   Bloodwobth, J.

There is no merit in the special grounds of the motion for a new trial, and the court did not err in directing a verdict for the plaintiff. Judgment affirmed.

Broyles, G. J., and Lulce, J., eoneur.


text:
    18810.
    HIGHSMITH v. THE STATE.
    Decided May 15, 1928.

      Ben Smith, for plaintiff in error.

      S. Thomas Memory, solicitor, contra.
   Luke, J.

J. C. Highsmith was convicted, under the act of 1919 (Ga. L. 1919, p. 220; Park’s Code Supp. 1922, vol. 11, sec. 202(hh)), of giving O. L. Roberson a worthless check for $25 on the First National Bank of Waycross. The defendant’s motion for a new trial being overruled, he excepted.

The defendant, who operated a “U-drive-it” automobile business in Waycross, Ga., rented an automobile to a negro, who failed to return it. 0. L. Roberson, sheriff of Pierce county, located the automobile near Blackshear. Roberson testified that neither the defendant nor any one else offered a reward for the automobile, but that he held it for a reward; that on March 21, 1927, the defendant gave him a check for $25 on the First National Bank of Waycross, signed “J. C. Highsmith,” that the check was returned by the bank, marked “insufficient funds,” and that he never realized any money on it; that- he agreed with the defendant to hold the check for two weeks before presenting it to the bank, and that he actually held it about thirty days before depositing it for collection; that the defendant never told the witness that he had no money in the bank ■ with which to pay the check; that the witness understood that the purpose of holding the check was to give the defendant a chance to collect the reward out of the insurance company, and that the sole consideration for his delivering the automobile to defendant was said check. The defendant in his statement at the trial said that he went to Blackshear and told the sheriff, Roberson, to look out for his automobile; that upon Roberson’s asking about a reward, he told Roberson that he would not give any reward, but that he bought the automobile from the Commercial Credit Company, and he would' try to get it out of that company; that when he found out that Roberson had his automobile and went to Blackshear to get it, Roberson wanted a reward of $25; that he told Roberson that he bought the car through the Commercial Credit Company, and supposed that the company had it insured and would pay the reward; that Roberson said he would hold the car until the reward was paid; that he then stated to Roberson that it would be cheaper for him to pay the reward than to wait on the insurance people, as he needed his car, but that he did not have the money, and that if Roberson would hold the check and give him a chance to get the money out of the Credit Company, he would pay it himself if he could not get it out of that company; that he told Roberson, when the cheek was given, that he did not have the money to pay it with, and that Roberson took the cheek with the understanding that defendant was to go back and get the check when he collected the money out of the insurance company; and that the automobile was delivered to him.

The gravamen of the offense is the “intent to defraud” (Berry v. State, 153 Ga. 169, 173, 111 S. E. 669, 35 A. L. R. 370); and since the prosecutor testified that he accepted the check under an agreement that he would not collect it for two weeks, the transaction was nothing more nor less than an extension of credit by Roberson, and a promise by the defendant to pay the former $25 at a future date. This case is controlled in principle by the eases of Neidlinger v. State, 17 Ga. App. 811 (88 S. E. 687), and Strickland v. State, 27 Ga. App. 772 (110 S. E. 39). The evidence does not support the verdict, and the court erred in overruling the motion for a new trial.

Judgment reversed.

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


text:
    18814.
    Wallin v. The State.
    Decided May 15, 1928.
   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).” Henderson v. State, 147 Ga. 134(2) (92 S. E. 871). The foregoing ruling is controlling in the instant case, and the court erred in refusing to grant a new trial.

Judgment reversed.

Broyles, O. J., and Luke, J., eoneur.

McClure & McClure, 8. W. Farris, for plaintiff in error.

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


author: Beoxles, C. J.

text:
    18823.
    Aycock v. The State.
   Beoxles, C. J.

1. The ground of the motion for a new trial based upon alleged error in excluding certain testimony is without merit, since that testimony is in the brief of the evidence transmitted to this court as a part of the record.

2. The charge of the court clearly and fully presented the issues in the case and the contentions of the State and the accused. Various excerpts from the charge are assigned as error. Some of them contain slight inaccuracies, but when these defects are considered in the light of the entire charge and the facts of the case, no harmful error is shown.

3. Error is assigned upon the refusal of the court to give several requested instructions to the jury. The charge given sufficiently covered such of these requested instructions as stated correct principles of law pertinent to the facts of the case.

Decided May 15, 1928.

8. B. Lippitt, James B. Thomas <& 8on, for plaintiff in error.

W. B. Gibbs, solicitor-general, contra.

4. Several grounds of the motion for a new trial are based upon alleged misconduct of the jury during the trial. The evidence as to such misconduct was met by a strong counter-showing from the State, which amply authorized the judge to decide that no such misconduct had been shown.

5. The evidence adduced by the movant as to the bias, partiality, and prejudice of the foreman of the jury was met by a counter-showing on the part of the State, and upon this question of fact the judge was the trior, and his decision was final.

6. The other alleged newly discovered evidence is cumulative and impeaching, and is not of such a character as would likely result in a different verdict upon another trial. Furthermore, it appears that this evidence could have been discovered by proper diligence on the part of movant and his counsel before the trial.

7. The verdict was amply authorized by the evidence, and the denial of the motion for a new trial was not error for any reason assigned.

Judgment affirmed.

LuJce and Bloodieorth, JJ., concur.


text:
    18824.
    BROWN v. THE STATE.
    Decided May 15, 1928.

      Lowrey Stone, for plaintiff in error.

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

Charles Brown was charged with entering the ice plant of the City of Blakely, and taking therefrom, with intent to steal the same, four books of ice-tickets, each book being of the value of $4.50 and containing ten tickets, and each ticket representing one hundred pounds of ice. A conviction resulted, and the defendant made a motion for a new trial upon the general grounds and upon three special grounds.

A. E. Killebrew, sworn for the State, testified: that he had been superintendent of the said ice plant since January 1, 1927; that the plant was owned by the City of Blakely; that his duties were merely supervisory until March, 1927; that Mr. Kelly, whose office was next to that of the witness, attended to the “sales part” of the plant; that about November 10, 1927, Kelly left, and Mr. Johnson took his place; that each ice-book had a number on it, and that the ten tickets in each book bore the same number as the book; that the ice-books and tickets were the property of the City of Blakely; that “Mr. Kelly kept the ice-books in a box in a small wooden cabinet against the wall in the office, in plain view of any one coming into his office;” that these ice-books were bought before the witness came to Blakely, and that there were two hundred of them in the series; that in checking up the ice-books about November 10, 1927, they found that there were no books numbered 450, 451, 452, and 453, though there were books numbered regularly through 449, and books in regular sequence beginning with 454; that at this time two men, — the defendant and Clifford Anthony, — were delivering ice; that when a ticket numbered 451 was turned in by one of the men, they were directed to write on the back of each ticket the customer’s name from whom it was procured; that five tickets numbered 451 were turned in with different names written on each ticket, .and that the defendant admitted writing the names on the tickets, and that he probably turned them .in, but could not explain how these tickets bearing the same number could have been gotten from different people; that ice-book 451 had not been sold, as “the books had not been sold that high up;” that book 453 was found under the ice-platform with all the tickets gone out of it; that he did not check up the ice-books either in January or March, 1927; that he could not swear that he ever saw any of the missing ice-books in the cabinet where they were kept; that he could not swear of his own knowledge that the tickets in each missing book were numbered the same as the book from which they came; that until recently the cabinet in which the ice-books were kept was open, and that the office containing the cabinet was often left with no one in it; that Mr. Kelly often left in his office the negroes who delivered ice; that it was possible for the missing books to have gotten mixed np when Mr. Kelly went to get them; that there had been trouble about the ice-tickets both before and after the defendant started to delivering ice about September 10, 1927; that the other man, Anderson, claimed to have sold an ice-book to a man who “denied that he had written in it where his name appeared;” that he considered the defendant all right and very industrious; that the defendant consistently denied stealing the tickets, saying that he got them in the usual way; that all the tickets examined corresponded with the number on the back of the book from which they came; that whenever an ice-book was sold the customer’s name was written on the back ‘of the book, but that no name was written on the book found under the platform; and that the books corresponding with the numbers on the tickets turned in were not found.

W. M. Johnson, sworn for the State, testified that the defendant turned in at the same time five tickets numbered 453; that the number was too large, and he knew that the book bearing that number had not been sold; that ice-books 450 to 453, inclusive, were missing; that he asked the defendant how it was he had five tickets out of one book coming in at the same time, and the defendant said he might have gotten them from the market, but that the witness knew he had not gotten the tickets from the market, because the book bearing the same number as the tickets had not been sold, and that no customer’s name was written on any of these five tickets. The defendant, in his statement at the trial, said: “I don’t know nothing about it. I tried to give them good service, and every book they give me I collected for it and carried it back to the office.”

It does not appear when the missing ice-books were purchased, the only testimony in this regard being that of Mr. Killebrew, who said that they were bought before he came to Blakely as superintendent on January 1, 1927. The same witness testified that he could not swear that he ever saw any of the missing books in the cabinet where the ice-books were kept. Mr. Johnson’s testimony that “he looked through the cabinet, and five books were missing from the series,” throws little or no light on the question whether the missing ice-books were ever in the cabinet.

Again, assuming that the ice-books were in the office as alleged, the evidence entirely fails to show when they were taken therefrom. Certainly the fact that a “check up” of the ice-books in November, 1927, disclosed that the books were missing does not show when they disappeared. Indeed, it does not appear that the alleged offense was committed within two years prior to the indictment. However, since this contention was not specifically raised by a ground of the motion for a new trial, the judgment overruling the motion can not be reversed for lack of evidence showing that the offense charged was committed within the statute of limitations. Ga. L. 1911, p. 149 (Park’s Penal Code (1914), § 1101(a)). See also Wall v. State, 10 Ga. App. 136 (72 S. E. 934); Parrish v. State, 10 Ga. App. 836 (74 S. E. 445); Gentry v. State, 15 Ga. App. 641 (83 S. E. 1099); Ford v. State, 21 Ga. App. 499 (94 S. E. 69); Dennis v. State, 19 Ga. App. 446 (91 S. E. 783); Palmer v. State, 19 Ga. App. 752 (92 S. E. 233); Shirley v. State, 32 Ga. App. 780 (124 S. E. 812). It clearly appears from the foregoing authorities that the question whether there was a failure to prove the time of the commission of an offense must be raised before the trial court, and that the question can not be invoked by the general assignment in a motion for a new trial that the verdict is contrary to the evidence.

However, where a conviction, as in this case, rests entirely upon the unsatisfactorily explained possession of stolen goods, the “recency” of the possession has much to do with the weight of the evidence, and we do not think a conviction should be allowed to stand where the evidence fails to show when the alleged offense was committed. The nearer the possession to the time of the larceny, the stronger is the inference of guilt. McAfee v. State, 68 Ga. 823. It was held in Calloway v. State, 111 Ga. 832 (36 S. E. 104), that “While recent possession of stolen goods unexplained will justify a conviction for larceny, the mere possession of goods several months subsequent to the time they were alleged to have been stolen and a failure to satisfactorily account for such possession will not alone authorize a conviction.”' In the case of Turner v. State, 114 Ga. 45 (39 S. E. 948), where the goods alleged to have been stolen were found in the possession of the defendant “some fifteen months” after the larceny, the following ruling was made: “While proof that an accused was found recently after a larceny in the possession of stolen goods is a circumstance from which the presumption of guilt arises, suflieiciitly. strong to authorize a conviction, yet where the evidence shows such possession not to have been recent, and the articles stolen to be of such a nature that they could readily have passed from hand to hand, a presumption of guilt still arises, but it is not, without other evidence, sufficient to sustain a conviction.” In the same case (p. 48) the court stated “that in all cases where such possession is relied on to establish guilt, it must either be shown to have been recent, or else it must be strengthened by other evidence.”

In this connection it might not be amiss to remark that this is not an ordinary case of possessing property alleged to'have been stolen, since if another than the defendant or his colaborer either bought or stole ice-tickets, they would ordinarily be used fox procuring ice, and would naturally come into the hands of one of the delivery men as the. representative of the ice company. We do not think that the presumption of theft would be as strong/ in any event, in a ease like this as it would be in the cases usually presented to the courts.

The evidence in this case does not support the verdict, and the court erred in overruling the motion for a new trial.

Judgment reversed.

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


text:
    18825.
    McKENZIE v. THE STATE.

      Decided May 15, 1928.

      L. L. Woodwa/rd, for plaintiff in error.

      T. Hoyt Davis, solicitor-general, contra.
   Bloodworth, J.

Of the foregoing headnotes, the 4th and 5th are understandable in themselves. The others will be understood when read in connection with the following ground of the motion for a new trial: “Because the court erred in accepting the verdict as rendered by the jury and sentencing movant as for a felony. The jury having returned a verdict as follows: ‘¥e, the jury, find the defendant Ibo McKenzie guilty. Becommend punishment as a misdemeanor. This 22nd day of November, 1927. S. W. Morgan, Foreman.’ The court refused to accept the verdict and ordered the jury back to their room to fix a minimum and maximum sentence. The jury retired and endorsed below the signature of the foreman the following: ‘ Sentence not less than 2 years nor more than 4 years.’ The court then announced to the jury and others that he would ignore their recommendation and did sentence movant to the penitentiary for a term of not less than 2 nor more than 4 years. Movant says that the eleven words added to the indictment by the jury were not signed by anyone as foreman or otherwise, and that the same is not a parcel and part of the verdict of the jury, but is a separate and distinct matter and of no effort [effect?], certainly no legal effect in this case, and was not the verdict of the jury. Said attempted amendment was harmful to this movant. To all of which objections were-urged at the trial.”

Judgment affirmed.

Broyles, C. J., and Luke, J., corlcur.


text:
    18826.
    Ray v. The State.
    Decided May 15, 1928.
    Rehearing denied June 12, 1928.

      Shelby MyricTc, for plaintiff in error.

      Walter 0. Martridge, solicitor-general, Julian Martridge, contra.
   Broyles, C. J.

1. “On the trial of a husband charged with a crime, conversations between him and his wife, when relevant, may be testified to by one who overheard them.” Hudson v. State, 153 Ga. 695, 697 (113 S. E. 519), and cit. Sims v. State, 36 Ga. App. 266 (136 S. E. 460). If there be any contrary holding in Wicker v. State, 14 Ga. App. 665 (82 S. E. 58), that ruling must yield to the ruling of the Supreme Court in the Hudson case, supra. The conversation in the instant case was relevant and was properly admitted.

2. Conceding (but not deciding) that the admission of the testimony set forth in the second special ground of the motion for a new trial was error, the error does not require a new trial, since substantially the same testimony was elicited from another witness without objection.

3. Another ground of the motion for a new trial complains of alleged prejudicial statements made by the judge during the trial and in the presence of the jury. The ground, however, raises no question for the consideration of this court, since it does not appear that a motion for a mistrial was made.

4. Various excerpts from the charge of the court are assigned as error, and the charge as a whole is attacked as being “highly argumentative of the State’s contentions,” and as failing to set forth with equal particularity the contentions of the defendant. While some of the excerpts contain slight inaccuracies as to the contentions of the State, such inaccuracies, in the light of the entire charge and the facts of the case, do not require a new trial. The charge as a whole was clear and fair and was not subject to the criticisms made against the charge in Griffin v. State, 34 Ga. App. 526 (130 S. E. 368). In the instant ease it is conceded in the record that the charge set forth all the legal contentions of the accused. However, the plaintiff in error contends that it “did not specify in detail the various facts upon which the defendant relied for acquittal,” while it did set forth “not only the legal position of the State, but specified the various facts upon which the State relied and the conclusions from those facts upon which the State relied.” Suffice it to say in this connection that the testimony for the State was voluminous and that no testimony was introduced by the defendant, he relying upon his statement to the jury. The court charged upon all the legal contentions of the accused; and if further detailed charges thereon were desired, written requests therefor should have been presented.

5. The charge upon the law of mutual combat was amply authorized by the evidence.

6. The verdict was authorized by the evidence, and the refusal to grant a new trial was not error for any reason assigned.

Judgment affirmed.

Luke and Bloodworth, JJ., coneur.


text:
    18827.
    Slaton v. The State.
    Decided May 15, 1928.

      II. A. Allen, for plaintiff in error.
   Luke, J.

The evidence in this ease sustains the conviction of the defendant for both transporting and possessing intoxicating liquor, and the trial judge did not err in overruling the motion for a new trial, based solely upon the usual general grounds.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., eoneur.


text:
    18832.
    ARVINGER v. THE STATE.
    Decided May 15, 1928.

      Kirlcland & Kirkla/nd, for plaintiff in error.

      L. G. Anderson, solicitor, contra.
   Bloodworth, J.

The true bill in this case alleged that the accused did “take and carry away, with the intent then and there to steal the same, 2-% barrels of turpentining gum of the value of $30.00 and the property of Myer Saul." Myer Saul appeared from the indictment to be the prosecutor. The record shows that on the trial of the case J. M. Wilkins, a justice of the peace, swore that in his presence and in the presence of J. L. Dickerson, a constable, the prosecutor told the accused that if he would get up his money he would stop the case. The constable swore: “We told him [the accused] that there would have to be something done, or we would have to try him one way or the other." This all occurred before the accused made the alleged confession. The evidence of the justice of the peace and of the constable was objected to on the ground that if the statement made by the defendant was a confession, it was not freely and voluntarily made, and there was held out to him the hope of a reward and an inducement to make the statement. Section 1032 of the Penal Code provides that “To make a confession admissible, it must have been made voluntarily, without being induced by another, by the slightest hope of benefit or remotest fear of injury.” The headnote in King v. State, 155 Ga. 707 (118 S. E. 368), we have adopted as the headnote in this case. See Byrd v. State, 68 Ga. 661 (2); Frain v. State, 40 Ga. 529; Johnson v. State, 1 Ga. App. 129 (57 S. E. 934); Allen v. State, 4 Ga. App. 458 (61 S. E. 840); Morris v. State, 33 Ga. App. 53 (125 S. E. 508), and cit. The confession, evidence of which was admitted over objection, we think, was induced by a hope of benefit, and should not have been admitted, and, as the remaining evidence did not demand the verdict, the court erred in overruling the motion for a new trial.

Judgment reversed.

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


author: Bbovx.es, C. J.

text:
    18839.
    Starr v. The State.
    Decided May 15, 1928.

      Shelby Myricle, H. Mercer Jordan, for plaintiff in error.
   Bbovx.es, C. J.

The verdict was amply authorized by the evidence, and none of the grounds of the motion for a new trial show cause for a reversal of the judgment.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


text:
    18840.
    Childers v. The State.
   Luke, J.

Where, after this court affirmed a conviction for seduction (Childers v. State, 37 Ga. App. 93, 139 S. E. 88), the accused filed an extraordinary motion for a new trial, based upon alleged newly discovered evidence, and the motion was overruled, this court will not hold that in so ruling the trial judge abused his discretion, where none of the affidavits in support of the two witnesses upon whose evidence a new trial was sought gave the names of their associates (Civil Code (1910), § 6086; Childers v. State, supra; Ivey v. State, 154 Ga. 63 (6), 113 S. E. 175) , and where one of the two attorneys representing the accused at his trial declined to make an affidavit that he did not know of the existence of such evidence before the trial and that the same could not have been discovered by the . exercise of ordinary diligence. Civil Code (1910), § 6086; Speer v. State, 136 Ga. 67 (70 S. E. 797); Patterson v. Collier, 77 Ga. 292 (2) (3 S. E. 119); Weeks v. State, 79 Ga. 36 (7) (3 S. E. 323); Wheeler v. Salinger, 33 Ga. App. 300 (9) (125 S. E. 888); Carpenter v. State, 35 Ga. App. 349 (133 S. E. 350); Hart v. State, 36 Ga. App. 673 (2) (137 S. E. 798); Williams v. State, 34 Ga. App. 174 (2) (128 S. E. 586); Brand v. Kennedy, 71 Ga. 707 (2).

Decided May 15, 1928.

George W. Garrett, Walter DeFore, James C. Estes, for plaintiff in error.

Charles E. Garrett, solicitor-general, contra.

Judgment affirmed.

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


text:
    18846.
    HOBBS v. THE STATE.
    Decided May 15, 1928.

      Rosser & Shaw, for plaintiff in error.

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

Hnder the rulings in the headnotes, the court did not err in overruling the motion for a new trial. It is not denied that the storehouse named in the indictment was broken into and the articles named taken therefrom. One of the owners of‘the store identified at least one of the articles found in the possession of the plaintiff in error as having been taken from the store. If a single one of the articles taken from the store at the time of the burglary is soon thereafter found in the possession of the aecused, this is sufficient, in the absence of an explanation which is satisfactory to the jury, to authorize a conviction. See, in this connection, Dixon v. State, 26 Ga. App. 13, 16 (105 S. E. 39).

Judgment affirmed.

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


text:
    18847.
    Davis v. The State.
    Decided May 15, 1928.

      E. E. Goodrum, for plaintiff in error.

      Roy TP. Moore, solicitor, contra.
   Broyles, C. J.

A mere temporary loan of property, without hire or other benefit to the person lending, is not such a fiduciary bailment as would make the stealing or conversion of the property larceny after trust. Barksdale v. Slate, 28 Ga. App. 535 (112 S. E. 165).

Under the above-stated ruling and the facts of the instant case, the defendant’s conviction of larceny after trust was unauthorized, and the refusal to grant him a new trial was error.

Judgment reversed.

Luke and Bloodworth, JJ., concur.