author: Bloodworth, J. Bloodworth, J.

text:
    18979.
    HUNT v. THE STATE.
    Decided July 10, 1928.
    Rehearing denied July 31, 1928.

      John T. Dorsey, for plaintiff in error.

      George D. Anderson, solicitor-general, contra.
   Bloodworth, J.

The motion for a new trial alleges that the solicitor-general asked a witness a question, and that counsel for the defendant objected to the question. The record does not show that this question was ever answered or that the judge was apprised of what the answer would be if the witness should answer. This ground is, therefore, incomplete. This court will not refer to the brief of evidence for the purpose of completing an incomplete assignment of error.

The second ground of the amendment to the motion alleges that the court erred in a certain portion of the charge. The instructions given were not alleged to be erroneous, but the objections were “to the fashion and arrangement of the principles of law given by the court, [to ?] their order in the charge, movant excepted, he now excepts, and assigns the same as error and contrary to law.” In this contention we can not agree with counsel for plaintiff in error.

As in misdemeanors “there are no accessories, and all who knowingly participate in such criminal transactions are equally guilty, whether they participate as chief or principal actor, or as a mere accessory” (Loeb v. State, 6 Ga. App. 23, 30, 64 S. E. 338; Hebbard v. State, 33 Ga. App. 45, 47, 125 S. E. 508), this court can not.say that there is no evidence which would authorize the jury to reach the conclusion that the defendant was aiding and abetting a certain party who was clearly guilty of transporting intoxicating liquor.

Judgment affirmed‘.

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

ON MOTION EOR REHEARING.

Bloodworth, J.

The plaintiff in error alleges that “the court overlooked the verdict of the jury trying the case acquitting the defendant on the first count and finding him guilty on the 3d count, as shown by the record in this ease,” and insists that a rehearing should be granted him because “the verdict is contrary to law,” which is the 3d ground of the original motion for a new trial. The court did not overlook the verdict of the jury which tried the case. In Empire Cotton Oil Co. v. Continental Gin Co., 21 Ga. App. 16, 18 (93 S. E. 525), on motion for a new hearing Judge Jenkins said: “Section 6142 of the Civil Code of 1910 provides: ‘When a party desires to review the judgment of the court in granting or refusing a new trial, the plaintiff in error shall specifically set out the errors complained of/ The only assignment of error which it would seem, under any view, might be taken as covering the point here mentioned is the general ground, contained in the motion for a new trial, that the verdict is ‘ contrary to law/ Under the rulings made by the Supreme Court, such an assignment presents nothing for the decision of the appellate court. Napier v. Burkett, 113 Ga. 607 (38 S. E. 941); Roberts v. Keeler, 111 Ga. 181 (36 S. E. 617). See also Civil Code (1910), § 6203; McKelvin v. State, 17 Ga. App. 413 (87 S. E. 150).” In Callaway v. Atlanta, 6 Ga. App. 354 (2) (64 S. E. 1105), Judge Powell said: "Assignments of error must be specific, whether contained in a bill of exceptions or in a petition for certiorari. Civil Code, § 4650; Western & Atlantic R. Co. v. Jackson, 81 Ga. 478 (8 S. E. 209); Durham v. Cantrell, 103 Ga. 166 (20 S. E. 708); Clements v. McCormick Co., 115 Ga. 852 (42 S. E. 222); Hayden v. State, 69 Ga. 731; Fleming v. State, 67 Ga. 767. An assignment of error that the verdict and judgment is contrary to law’ is not a specific assignment of error, and can not be considered by the court. Newberry v. Tenant, 121 Ga. 561 (49 S. E. 621); Rogers v. Black, 99 Ga. 142 (25 S. E. 20).”

Rehearing denied.

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


source: Caselaw Access Project

author: Broyles, C. J.

license: Public Domain

text:
    18980.
    Hyatt v. The State.
    Decided July 10, 1928.

      J. R. Irwin, for plaintiff in error.

      Claude C. Smith, solicitor-general, contra.
   Broyles, C. J.

It not affirmatively appearing from tlie bill of exceptions and the record that the bill of exceptions was presented to the judge within 20 days of the judgment denying the motion for a new trial, this court has no authority to assume jurisdiction of the case.

Writ of error dismissed.

Luke and Bloodworth, JJ., concur.


author: Luke, J.

text:
    18981.
    Leeth v. The State.
    Decided July 10, 1928.
   Luke, J.

Leeth was convicted of violating the prohibition law. The evi-

dence was wholly circumstantial and, in our opinion, not sufficient to meet the legal requirement. Eor this reason the court erred in overruling the motion for a new trial.

■Judgment reversed.

Bloodworth, J., eoneurs. Broyles, O. J., dissents.

R. Garter Pittman, J. B. Rosser, for plaintiff in error,

cited: Hampton v. State, 34 Ga. App. 699; King v. State, 37 Ga. App. 482.

John C. Mitchell, solicitor-general, contra.


author: Bloodwobth, J.

text:
    18993.
    McSwain v. The State.
    Decided July 10, 1928.
    Reheaeing denied July 31, 1928.

      R. Lee Moore, Saffold, Sharpe & Saffold, for plaintiff in error.

      Francis B. Hunter, solicitor, contra.
   Bloodwobth, J.

1. In Chandler v. State, 36 Ga. App. 121 (135 S. E. 494), this court held: “The writ of error will not be dismissed because of violation of the rule of the superior court requiring counsel for the plaintiff in error, on filing the bill of exceptions in a misdemeanor case, to certify that he believes that his client has good grounds for reversal.” Under this ruling there is no merit in the motion to dismiss the bill of exceptions.

2. The portion of the charge of which complaint is made in the motion for a new trial shows no error requiring the grant of a new trial.

3. The jury were satisfied that the evidence authorized the conviction of the accused, the judge who tried the case approved the verdict, and this court will not interfere.

Judgment affirmed.

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


author: Beoyles, O. J.

text:
    18998.
    O’Neal et al. v. The State.
   Beoyles, O. J.

The accusation, under which the defendants were tried together, contained two counts. ‘ The first count charged them with possessing whisky. The second count charged them with knowingly allowing one to locate distilling apparatus on their premises. The jury returned a verdict finding the defendants “guilty on counts number one and number two.” The evidence demanded the defendants’ conviction under the first count of the indictment, but did not authorize their conviction under the second count. The defendants made a motion for a new trial, and the court overruled the motion as related to the first count, and granted it as related to the second count, and the defendants excepted. Held, that the verdict, while specifying the particular counts to which it related, was nevfertheless a general verdict (Tooke v. State, 4 Ga. App. 495, 502, 61 S. E. 917), and “a general verdict of guilty upon an indictment containing two counts charging different offenses can not be sustained where there is no evidence to support a conviction upon one of the counts.” Lee v. State, 32 Ga. App. 333 (123 S. E. 49), and cit. The trial court had no authority to split up the verdict and to grant a new trial on one count of the accusation and to deny a new trial on the other count.

Decided July 10, 1928.

W. A. Bampier, for plaintiffs in error.

J. A. Merritt, solicitor, contra.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    19007.
    CAREY v. THE STATE.
    Decided July 10, 1928.

      Meriwether F. Adams, for plaintiff in error.

      Joseph B. Buhe, solicitor-general, contra.
   Luke, J.

Error was assigned on the following instruction to the jury: “The defendant in this case has made a statement, and, under the law, he has the right to make to the court and jury just such statement as he sees proper to make in his defense; and while this is not required to be under oath, yet it is left entirely with the jury as to what credit you will give the defendant’s state • ment. You have the right to accept it, or you have the right to reject it, or you have the right to'believe it in preference to the sworn testimony in the case, if you see proper to give it that degree of credit.” This was excepted to because of failure to charge that the jury could believe the statement in part and reject part.

Upon conflicting evidence the jury had the right to convict the defendant. The crime alleged was positively sworn to by a State’s witness. The single special exception of the motion for a new trial, which assigns error upon the court’s charge as to the defendant’s statement, is without merit. The charge of the court as a whole was most fair. The defendant has been legally convicted, and his motion for a new trial was properly overruled.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    19008.
    Eunice v. The State.
    Decided July 10, 1928.

      8. F. Memory, Griffin & Wallcer, for plaintiff in error.

      8. Thomas Memory, solicitor, contra.
   Bloodworth, J.

1. The court did not err in instructing the jury that, “one question in a criminal case being in regard to a county line, so as to fix the venue, hearsay evidence is admissible.” Wimbish v. State, 70 Ga. 718 (3); Riley v. Griffin, 16 Ga. 142 (18) (60 Am. D. 726).

2. “The grounds of the motion for a new trial which complain of the refusal of certain requests to charge are not complete and understandable within themselves, as none of them show or even allege that the requested instructions were adapted to the facts of the case or were authorized by any evidence adduced. Beavers v. State, 33 Ga. App. 370 (2) (126 S. E. 305); Sandersville R. Co. v. McDaniel, 37 Ga. App. 34 (138 S. E. 584).” Brazil v. City of LaGrange, 37 Ga. App. 500 (140 S. E. 782). This ruling disposes of special grounds 2 and 3 of the motion.

3. The court is alleged to have erred in admitting certain evidence as to the county line, over objection that it was hearsay. Under the ruling in the cases referred to in paragraph 1 above, this was not error.

4. There is evidence sufficient to show that the venue of the crime was in Pierce county.

5. The verdict of guilty is not without evidence to support it.

Judgment affirmed.

Broyles, G. J., and Dulce, J., concur.


text:
    19010.
    Trollinger v. The State.
   Broyles, C. J.

1. Upon the call of the case counsel for the defendant, when he announced ready for trial, stated that the defendant would waive nothing but arraignment, and when he signed the plea of not guilty he struck therefrom all the usual waivers except the waiver of arraignment. The defendant and his counsel were furnished by the clerk of the court with a list of the names of 72 jurors (constituting six panels), and they were informed that those were the jurors from which the jurors trying the case would be selected. Thereupon the first panel was called into the jury box, and after they qualified as to their competency, the voir dire questions, as provided by the statute, being propounded to them, the State and the defendant proceeded with the selection of the jury, and the jury was finally selected and returned a verdict in favor of the State. Held: Since the defendant participated in selecting the jury, without making any objections or a challenge to the array, he will not be heard, after his conviction, to complain that the panels were not properly put upon him or that he had no opportunity to challenge the array. See, in this connection, Cumming v. State, 155 Ga. 346 (2) (117 S. E. 378); Schumpert v. State, 9 Ga. App. 553 (71 S. E. 879).

Decided July 10, 1928.

Reiieaeins denied July 31, 1928.

Len B. Guillebem, F. Joe Turner Jr., for plaintiff in error.

John A. Boykin, solicitor-general, J. W. LeOraw, John H. Hudson, contra.

2. Those grounds of the motion for a new trial which are based upon alleged improper arguments made to the jury by the solicitor-general do not raise any question for the consideration of this court, since it does not appear that a motion for a mistrial was made in connection therewith.

3. The last ground of the amendment to the motion for a new trial is without merit.

4. 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 Bloodworih, JJ., eoneur.


text:
    BULFIN v. THE STATE.
    Decided July 10, 1928.

      D. K. Johnston, for plaintiff in error.

      John A. Boykin, solicitor-general, J. W. LeOraw, E. A. Stephens, contra.
   Luke, J.

The indictment in this case charged T. W. Bulfin with blackmail, in that he, verbally and in writing, charged different persons with various misdemeanors, — in some instances with threatening to prosecute his victim, and in others with both arresting and threatening to prosecute him, with the intent to extort money fiom him. The defendant demurred to the indictment and the several counts thereof, (1) because “said indictment in its various counts sets forth no crime against the laws of Georgia, and does not with any definiteness charge this defendant with a violation of any law of Georgia;” and (2) because “said indictment is defective in that it attempts to join in the same indictment in different counts transactions at different times with different parties.” The court overruled the motion for a new trial, based upon the usual general grounds, and also upon special grounds, some of them averring a failure on the part of the State to prove the venue as to some of the counts, and others insisting that the statute of limitations had run as to certain counts.

The demurrers to the indictment were properly overruled. It is not a violation of good pleading in cases like the one here for review to charge in separate counts different and distinct acts of blackmail. Each act charged is a different transaction, but of the same general nature. Each count stands as a separate indictment. The indictment was so framed that the jury could, if the evidence so authorized, legally acquit the defendant on some of the counts and convict him on others. The venue was proved, and the evidence amply authorized the defendant’s conviction on the counts named in the verdict. He was a constable, and his conduct, if the evidence be true (and a jury of his fellow citizens say under oath that it is true), was most reprehensible. The jury found that the defendant charged various people with misdemeanors, and arrested some of them, for the purpose of extorting money from them, when in fact no such offenses had been committed. This kind of conduct is denounced by the law as blackmail. In the light of some of the evidence there is no merit in the assignments of error based upon the ground that some of the alleged misdemeanors were barred by the statute of limitations. The defendant has had a legal trial, and for no reason pointed out in the record did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, G. Jand Bloodworth, concur.


text:
    19012.
    Mitchell v. The State.
    Decided July 10, 1928.

      Alton B. Liles, W. N. Oliver, for plaintiff in error.

      Robert McMillan, .solicitor-general, contra.
   Bloodworth, J.

1. Frank Mitchell was convicted of assault with intent to murder Hoyt McDaniel. The court did not err in allowing in evidence a bloody shirt which McDaniel was wearing at the time he was cut. Goodwin v. State, 148 Ga. 33 (3) (95 S. E. 674).

2. The court did not err in refusing to declare a mistrial on the ground that the solicitor-general exhibited to the jury the shirt referred to above, nor in refusing to declare a mistrial because the assistant solicitor-general, in his concluding argument, said: “The defendant claims that he was beaten over the head and that he was bloody; but in my opinion the only blood he had on him was Hoyt McDaniel’s blood off this shirt.” This was a legitimate and reasonable inference from the evidence. It was not stated by counsel as a fact. “A statement by the prosecuting attorney in his argument, expressive of his opinion of the defendant’s guilt . . should be construed to mean that the testimony led him to this conclusion. . . What the lane condemns is the injection into the argument of extrinsic and prejudicial matters which have no basis in the evidence.” (Italics ours.) Floyd v. State, 143 Ga. 286, 289 (84 S. E. 971). See also Pullen v. State, 30 Ga. App. 24 (3), 28 (116 S. E. 871), and cit.

3. When considered in connection with the remainder of the charge, the excerpts therefrom of which complaint is made in the motion for a new trial show no error that requires another trial of the case.

4. There is ample evidence to support the verdict, which has the approval of the judge who tried the case, and this court will not interfere.

Judgment affirmed.

Broyles, O. J., and Liohe, J., concur.


text:
    19015.
    JONES v. THE STATE.
    Decided July 10, 1928.

      Pat Haralson, T. 8. Candler, J ones & Reid, for plaintiff in error.

      Robert McMillan, solicitor-general, T. R. Gress, assistant attorney-general, B. P. Gaillard Jr., W. V. Lance, contra.
   Broyles, C. J.

The accused was tried for murder and was convicted of voluntary manslaughter. The evidence for the State amply authorized the verdict. The defendant introduced no evidence, but made a statement to the jury in which he contended that the killing was an accident. That contention was evidently rejected by the jury. The charge of the court upon the law of voluntary manslaughter, the law of mutual combat, and the law upon dying declarations was not error for any reason assigned. The evidence connecting the accused with the offense of voluntary manslaughter not being wholly circumstantial, the failure of the court to charge upon the law of circumstantial evidence was not error, in the absence of an appropriate written request. Under the evidence adduced, the court did not err in failing to instruct the jury upon the law of involuntary manslaughter in the commission of a lawful act, or in failing to charge as set forth in ground 4 of the amendment to the motion for a new trial. The refusal to grant , a new trial was not error for any reason assigned.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    19016, 19017.
    CLEVELAND v. THE STATE.
    Decided July 10, 1928.

      F. W. Gilbert, B. W. Fortson, for plaintiff in error.

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

Cleveland was convicted in two cases of burglary. His conviction in both cases was dependent upon the same evidence, and the same jury, by agreement, decided both, rendering separate verdicts. The conviction in each case was dependent upon the testimony of an accomplice. It was contended that the conviction was unauthorized, because there was no evidence to corroborate the testimony of the accomplice. Wc have carefully examined the evidence in a search for corroborating testimony, and fail to find it. The circumstances relied upon to corroborate the accomplice are but slight, and at best only raise a suspicion of the defendant’s guilt; none of the circumstances are sufficient to connect him directly with the crime. Of course he may be guilty, but that presumption of innocence which the law throws around him is not overcome, and cannot be overcome, by circumstantial evidence which in no manner directly, and independently of the testimony of an accomplice, connects him with the crime charged. For the reason that the testimony of the accomplice was not, as required by law, sufficiently corroborated, the court erred in each case in overruling the motion for a new trial. The other assignments of error in the motion for a new trial need not be considered.

Judgment in each case reversed.

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


author: Bioodworth, J.

text:
    19018.
    CHANDLER v. THE STATE.

      Decided July 10, 1928.

      Strozier & Gower, W. H. Dorris, for plaintiff in error.

      T. Hoyt Davis, solicitor-general, G. L. Han'ris, contra.
   Bioodworth, J.

We will discuss headnotes 4, 5, and 7 only.

Complaint is made in the motion for a new trial “that the court failed to set out in his charge, at any point, the contention of the defendant, — that is to say, the court ignored in his charge, and failed to state to the jury, the defense relied upon in the trial of his case. In other words, movant contends that it was the duty of the court, and in fairness to the defendant in the trial of his case, to have stated to the jury his contentions that he was not guilty for the reason that he was totally incapacitated, both mentally and physically, to take care of and provide for his child, and that the defendant, by reason of his affliction, both mentally and physically, had provided a home for his said wife and child at the home of defendant’s father, and that his said wife, by voluntarily leaving the home and support which he had provided for them, therefore rendered fruitless the provision which the defendant had made for the support of his said child.” The court having charged generally on the issues in the case, if more specific instructions appropriate to these theories of the defense were desired, there should have been a timely and legal written request therefor. In the absence of such a request it is not incumbent on the trial judge to call the attention of the jury to such theories. Williams v. State, 120 Ga. 870 (48 S. E. 368); Southern Ry. Co. v. Hill, 139 Ga. 555 (77 S. E. 803); Edge v. Calhoun National Bank, 155 Ga. 821 (2), 826 (118 S. E. 359). In Beavers v. State, 33 Ga. App. 370 (2) (126 S. E. 305), this court held: “Where a ground of a motion for a new trial complains of the failure of the judge to charge certain principles of law (which the ground alleges should have been charged under the evidence adduced upon the trial), but where no evidence whatsoever is set forth in the ground, the ground is not complete and understandable within itself, and this court will not search through the brief of the evidence to discover whether there was any evidence requiring such instructions.” This ruling disposes also of the alleged error of omission to charge of which complaint is made in ground 6 of the motion.

The following excerpt from the charge is alleged to be error: “Separation of the father from the child does not bring about the question of how or in what manner such separation was brought about. It doesn’t involve the question of whether the father went away voluntarily from the place where the child had formerly been. It doesn’t involve the question of whether the mother of the child took the child with her, away from the place where the father was. It doesn’t involve the question of who, if either of the parents, were at fault in bringing about such separation between the father and the child. The conduct of the mother, no matter what it may be, in coming or going, can in no manner relieve the father of his duty to furnish food, shelter, and clothing for the minor child. The question to be considered by the jury is, was the father separate from the minor child ? If so, then did he fail to supply its needs ?” For no reason alleged is this excerpt erroneous. In Campbell v. State, 20 Ga. App. 190, 192 (92 S. E. 963), Judge George said: “We bring nothing' into the world, literally, so far as food, shelter and clothing are concerned. The unnamed infant referred to in the indictment was no exception to the rule. It needed food, clothing and shelter; it had to depend upon its mother for its food, its clothing and its shelter, because it had no property of its own. Neither good morals nor the laws of this State require that the father should be invited or requested to administer to the needs of his dependent child. The child is, in law, dependent upon the father for its food, shelter and clothing, and it is the legal duty of the father to provide them. If the child is fed at the mother’s breast, and if the mother be abandoned by the father prior to the birth of the child, and if this abandonment of both the mother and the child continue after the birth, the child is abandoned by the father. The fact that the mother supplied the food, shelter and clothing is no legal defense to an accusation against the father under section 116 of the Penal Code.”

It is alleged that the court erred in charging: “It is claimed by the State that the child in question is a helpless infant, deriving its sustenance from the mother’s breast. On that subject the law of this State, as declared by the Court of Appeals, is as follows: ‘We bring nothing into the world, literally, so far as food, shelter and clothing are concerned.’ An infant baby needs food, clothing and shelter. If the baby procures its food from the mother’s breast, then the duty devolves upon the father to furnish sustenance for the support of the mother, that she may in turn, in the course of nature, be able to furnish the child with its food.” We can not agree with the insistence of counsel for plaintiff in error that this portion of the charge is erroneous for any of the reasons urged against it; that is, that it was argumentative, was an intimation by the judge of what had been proved, and that it was calculated to mislead and did mislead the jury.

Judgment affirmed.

Broyles, C. J., concurs. Lulce, J., dissents from the ruling in headnote A


text:
    19025.
    Cleary v. The State.
    Decided July 10, 1928.

      D. W. Mitchell, for plaintiff in error.

      John G. Mitchell, solicitor-general, contra.
   Broyles, C. J.

1. The charge of the court is not subject to exception because of the alleged errors of commission and omission as set forth in the motion for a new trial. It fairly presented the issues to the jury; and if more detailed instructions were desired by the plaintiff in error, they should have been called for by appropriate written requests.

2. The evidence, although circumstantial, was sufficient to exclude every reasonable hypothesis save that of the defendant’s guilt.

Judgment affirmed.

Luhe cmd Bloodworth, JJ., concur.


text:
    19026.
    McNAIR v. THE STATE.
    Decided July 10, 1928.

      B. J. Stevens, for plaintiff in error.
    ‘ George Hams, solicitor-general, J. B. & T. B. Burnside, John M. Graham, contra.
   Luke, J.

McNair was convicted of attempting to wreck a passenger-train. The case is here for review upon the assignments of error that the evidence did not authorize the verdict, and upon the special grounds that the court, over objection, permitted a witness to remain in the court-room to assist the prosecution in the trial of the case, and upon certain rulings of the court in admitting in evidence, over objection, both a written and an oral confession by the defendant that he placed a cross-tie on' the railroad-track with no intention of hurting any one or of wrecking the train, but just to have the fun of seeing the train knock the ties off the track.

The court did not err in permitting one of the State’s witnesses to remain in the court-room to assist in the prosecution of the case. This was discretionary with the court, and there is nothing in the record to show an abuse of discretion. The confession was not illegally admitted, for any reason pointed out in the record. Those to whom the alleged confession was made testified positively that the confession was freely and voluntarily made. The foundation was, as is required, properly laid. The subsequent statement of the defendant contradicting the making of the confession freely, etc., was no reason for excluding the alleged confession. The jury was properly instructed by the court with respect to the law as to confessions. The defendant has had a legal trial, and his case was presented fully by his able counsel in the trial court and here. For no reason disclosed by the record did the court err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    19027.
    SMITH v. THE STATE.
    Decided July 10, 1928.

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

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

Two accusations were filed against the accused. By agreement these cases were tried together.

During the trial and after the judge had commenced to charge the jury the solicitor-general discovered that one of the jurors selected to try the- cases was an uncle of the defendant, and he made-a motion that a mistrial be declared on account of this relationship. The mistrial was declared. Later the accused filed a plea of former jeopardy, insisting that at the time the mistrial was declared he was in jeopardy, and that the legal effect of declaring the mistrial over his objection amounted to his acquittal. Under the facts of this case and the principle announced in Cambron v. State, 36 Ga. App. 784 (2), 785 (138 S. E. 280), the court did not err in declaring a mistrial or in striking the plea of former jeopardy. See also Cambron v. State, 164 Ga. 111 (2), 112 (137 S. E. 780); Rittenberry v. State, 30 Ga. App. 289, 291 (117 S. E. 765).

Of the two accusations filed against the accused, one charged him with selling intoxicating liquor on the 15th day of October, 1927, and the other alleged that on the same date he did have and control intoxicating liquor. By agreement these eases were tried together. There was a verdict of guilty of selling intoxicating liquor, and one of not guilty of possessing intoxicating liquor. There was but one trial; thé evidence was necessarily the same in both cases, and it showed but one transaction. Under the principle announced in Kuck v. State, 149 Ga. 191 (99 S. E. 622), and in Britt v. State, 36 Ga. App. 668 (137 S. E. 791), the verdict finding the accused guilty of selling intoxicating liquor is repugnant to the one finding him not guilty of possessing intoxicating liquor, and is void. The facts of this case differentiate it from the case of Phillips v. State, 27 Ga. App. 1 (107 S. E. 343).

Judgment reversed.

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


author: Bkoyles, C. J.

text:
    19028.
    Williamson v. The State.
    Decided July 10, 1928.

      Alfred Herrington Jr., A. G. Saffold, for plaintiff in error.

      A. 8. Bradley, solicitor-general, contra.
   Bkoyles, C. J.

1. The excerpts from the charge, complained of in the motion for a new trial, when considered in the light of the charge as a whole, show no reversible error.

2. It is conceded in the brief of counsel for the plaintiff in error that the verdict was authorized by the evidence.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    19030.
    HENDERSON v. THE STATE.
    Decided July 10, 1928.

      Porter & Mebane, for plaintiff in error.

      J. F. Kelly, solicitor-general, contra.
   Luke, J.

Henderson was indicted for and convicted of the offense of assault with intent to murder. His motion for a new trial was on the general grounds and on a special ground assigning-error upon the following excerpt from the charge of the court: “But he could not be convicted of assault with intent to murder, unless he used a weapon in its nature likely to produce death, and that he assaulted the party mentioned in the indictment, if he did assault him, with the specific intent at the time to kill him; and the burden is on the State to establish that intent to kill, and that the weapon was a weapon in its nature likely to produce death, but this intent to kill and the character of the weapon may both be shown by circumstantial evidence as well as by direct evidence.” The defendant contended that portion of the charge, to wit, “but this intent to kill and the character of the weapon may both be shown by circumstantial evidence as well as by direct evidence,” was error for the reason that the court failed to define, or instruct the jury upon, the circumstantial-evidence rule.

The conviction of the defendant was not dependent wholly upon circumstantial evidence; nor was the specific intent to kill, or the character of the weapon, wholly dependent upon circumstantial evidence. Therefore, under the repeated rulings of this court and of the Supreme Court, the failure to charge, without request, upon circumstantial evidence was not error. The evidence authorized the defendant’s conviction. He has had a fair trial, and for no reason pointed out in the record did the court err in overruling the motion for a new trial.

Judgment affirmed.

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


author: Bloodwokth, J.

text:
    19033.
    Johnson v. The State.
    Decided July 10, 1928.

      B. 0. Jenkins, for plaintiff in error.

      Joseph B. Duke, solicitor-general, contra.
   Bloodwokth, J.

1. Under the ruling in Carter v. State, 21 Ga. App. 493 (94 S. E. 625), and the facts of this case, it was not error for the court to fail to charge the jury on the law of circumstantial evidence.

2. The evidence was sufficient to authorize the jury to conclude that apparatus for distilling and manufacturing intoxicating liquors was located on premises in the actual possession of the accused. Indeed he did not deny this. Such evidence, by the express terms of the law (Act 1917. Ex. Sess., p. 18), is prima facie evidence that the person in actual possession had knowledge of the fact that the apparatus was located on his premises, and the burden of proof is on him to show that he had no such knowledge. Whether or not he had such knowledge is a jury question which has been determined against him, and in this we can not say that the jury erred. Malcom v. State, 28 Ga. App. 627 (112 S. E. 651); Neville v. State, 29 Ga. App. 232 (114 S. E. 720).

■Judgment affirmed.

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


text:
    19034.
    Ricks v. The State.
    Decided July 10, 1928.
   Broyles, C. J.

In a prosecution for cheating and swindling based upon section 719 of the Penal Code of 1910 the gist of the offense is the existence of a fraudulent intent. Moore v. State, 11 Ga. App. 813 (76 S. E. 368). In the instant ease the evidence as to the fraudulent intent of the accused was wholly circumstantial, and was not sufficient to exclude every reasonable hypothesis save that of his guilt. It follows that his conviction was unauthorized, and that the refusal to grant him a new trial was error.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

Price & Spivey, for plaintiff in error,

cited: Civil Code (1910), § 3705; Moore v. State, 11 Ga. App. 813; Foster v. State, 8 Ga. App. 119; Goddard v. State, 2 Ga. App. 154.

D. B. Jackson, solicitor, N. L. Gillis Jr., contra.


text:
    18797, 18841, 18843.
    WILLCOX et al. v. STATE HIGHWAY BOARD; and vice versa.

    Decided July 11, 1928.
    Rehearing denied July 31, 1928.

      Gordon Knox, L. G. Ilarrell, Hal Lawson, for plaintiffs in error.

      W. S. Mann, J. P. Highsmith, S. M. Smith, J. G. Bennett, contra.
   Luke, J.

The State Highway Board of Georgia filed petitions in the superior courts of Telfair and Jeff Davis counties, for the condemnation of certain lands for a right of way for a State-aid road and for material to be used in constructing and building the road. The record shows that the principal object of the condemnation proceedings was to procure a bridge site across the Ocmulgee river, with abutments therefor and approaches thereto. The lands sought to be condemned on both sides of the river were jointly owned by J. Clyde Willcox and I. L. Cook, hereinafter called defendants. The parties agreed to refer to a jury the issue as to the value of the land and the assessment and the fixing of the value of the land sought to be condemned. The bridge was completed before the trial of this issue. Upon the trial the evidence showed that on the lands sought to be condemned the defendants owned, and for several years had operated under a legally granted franchise, a public ferry across the Ocmulgee river, a navigable stream, for which as a legal right they charged toll; that the ferry was used by the public, but that the defendants kept up the road for some distance from the river on each side thereof; that the principal value of the land to the defendants was because of the revenue derived from the operation of this ferry, which they exclusively possessed by virtue of their ownership of the land on each side of the river, and because of the particular adaptability of the land for a bridge site; that defendants operated the ferry until the completion of the bridge by the highway department; that the principal value of the land to the plaintiffs was for a bridge site and abutments of and approaches to a bridge across the river. There was evidence that the land sought to be condemned was the most available and economical place to put the bridge, and evidence of the land’s value as a bridge site, of the value, of the land with and because of the ferry and ferry rights, of the net income to the defendants from their operation of the ferry, and of the cost of the ferry to defendants. There was evidence that the value of the land for ferry purposes was destroyed by the construction of the free bridge by the highway board. There was evidence of the value of the land per acre without regard to the ferry, ferry rights, income derived from the ferry, or the land’s particular availability as a bridge site, or the cost of the bridge. The evidence as to the value of the land, taking into consideration the ferry, the cost of the ferry, ferry rights, the income from the ferry, its availability as a bridge site, and the cost of the bridge, varied from $30,000 to $100,000. The evidence as to the value of the land by the acre for agricultural purposes, without regard to the above features, varied from $20 to $35 per acre. The jury rendered a verdict for $300 for the land in Jeff Davis county, and $162.50 for the land in Telfair county. Willcox and Cook filed motions for a new trial, which were overruled, and they excepted. In the Telfair-county case the highway board filed a cross-bill of exceptions, complaining of the admission of specified evidence and of the charge of the court.

The charge of the court in each case was substantially the same, except that in the Jeff-Davis case the court charged at the request of the eondemnee as follows: “Whatever the time fixed upon with reference to which the compensation shall be estimated, the owner is entitled to the actual value of the land at that time; that is, in this ease the actual value of the land at the time it was taken, even though it may have been enhanced by reason of the projected improvement for which it was taken. That is not really making the condemning party pay for an enhancement from the mere projection of the work, but from the existence of circumstances which create a demand for the work and render it probable that such a work will sooner or later be built. In so far as the enhancement is due to such circumstances, no doubt it is properly considered and allowed.” The errors assigned, when summed up, all go to the method of arriving at the damages sustained by the defendants by reason of the peculiar value to them of the land taken, as for ferry purposes and for bridge site. The amounts of the verdicts in the respective cases are each averred to be so small as to be the result of gross mistake, etc. From a careful examination of all the evidence, it must be said that each verdict shows on its face that the value of the land for ferry purposes and its value as a bridge site were not taken into consideration by the jury. Where damages are “so small or so excessive as to justify the inference of gross mistake or undue bias,” the court is permitted to interfere. Civil Code (1910), § 4399; Dougherty County v. Tift, 75 Ga. 815 (3); Anglin v. City of Columbus, 138 Ga. 469 (57 S. E. 780).

When this ease was before the Supreme Court (Cook v. State, 162 Ga. 84, 97 (132 S. E. 902), that court held that the Highway Board had the right to condemn property for road purposes, and “the fact that the proper county authorities are required to furnish rights of way, free to the State Highway Board, does not prevent that board from condemning rights of way for State-aid roads whenever the county authorities fail or refuse to furnish said rights ■of way. This provision may make the counties liable for expenditures incurred by the State Highway Board in acquiring these rights of way; but it does not bar this board from proceeding to condemn rights of way.” And in headnote 3 of that decision it was said: “Where the State Highway Board instituted a proceeding to condemn lands of the plaintiffs for the purpose of laying out a State-aid road and for securing approaches for the erection of a free public bridge across a navigable river, and where the plaintiffs had previously entered suit against certain counties to recover damages for taking and appropriating a right of way over their said lands for the same purposes, such condemnation proceeding is no bar to the action for damages.” (Italics ours.) In other words, the right of the Highway Board to condemn pro bono publico is undeniable, but this condemnation must not amount to confiscation. The words, “just and adequate compensation,” as used in the decisions pertaining to such cases, are neither meaningless nor ambiguous. The records and the briefs of able counsel in these cases are voluminous and present many issues, some of which are collateral, but all of which have been given due consideration; but the main, controlling issue is whether or not the jury, in arriving at the value of the land and the damage sustained by the defendants by virtue of its condemnation, should -have considered the ferry, ferry rights, cost of the ferry, income from the ferry, availability and desirability of the land for a bridge site, and cost of the bridge, or whether they should have valued the land by the acre for agricultural purposes without regard to these features, as was done. The value of land depends upon the use to which it may be put and the income which it will produce. Land may be particularly valuable by virtue of its particular location or its desirability for some particular purpose. In this event the owners are entitled to the benefit, and this has ever been the rule. Are these defendants required under the law to surrender a property that was yielding them before the completion of the free bridge approximately $1000 a month for the nominal sum of $462.50 ? Some of the decisions of the Supreme Court are apparently somewhat in conflict on this issue; but the oldest decisions, the latest decisions, and the code section now of force hold in effect that the owners of the land are entitled to “just and adequate compensation,” and in determining what is just and adequate compensation, for the land, “its prospective value as a bridge site and its present value as a ferry, if one is in use, may be taken into the calculation.-”

In one of the earliest decisions on this subject, that of Harrison v. Young, 9 Ga. 359 (4), the court held: “The value of land taken for public use is not restricted to its agricultural or productive qualities, but enquiry may be made as to all other legitimate purposes to- which the property could be appropriated.” And in the opinion (pages 364, 365) the court said: “Counsel for the Harrisons then proposed to prove the value of the land seized and occupied by the company as a bridge site, and that the land for the western abutment cost the company $6000, and that the location on the eastern side of the river was worth equally as much, and insisted that the value of the land for this and all other legitimate purposes was proper to be submitted to the jury, to enable them to estimate correctly the damages to be paid by the company. But this the court refused, and restricted the evidence to the actual value of the land for its .agricultural and productive qualities. When land or any other property is taken for public use the owner is entitled to compensation for its whole value, not for this or that particular object, but for all purposes to which it may be appropriated. Suppose I have on my premises a waterfall admirably adapted to machinery, and a portion of my land is seized and applied to the erection of a bridge or the construction of a railroad, so as to render the water-power unavailable; in computing my damages ought not this fact to be taken into consideration? The value of land or anything else is its price in the market. Concede, then, that the right to erect this bridge is not in the Harrisons, but has been bestowed by the State upon this company, ought not the owners of the land to be paid for the worth of the site to the company? Who, in making investments of capital in real estate, is not influenced by the consideration that it will be valuable for a town, bridge, ferry, mill, manufacture, etc? We hold, therefore, that our brother Warren, who ruled this case below, was mistaken as to the law which regulates this branch of the investigation.” The foregoing is the oldest case in point that we find, and it holds very emphatically that the owner is entitled to compensation for the whole value of the land, and that in arriving at such value all purposes to which the land may be appropriated should be taken into consideration. Under this decision, unquestionably the jury should have considered the value of the land in the instant case for ferry purposes and as a bridge site, and rendered a verdict accordingly.

At the second appearance of the Harrison case in the Supreme Court (Young v. Harrison, 17 Ga. 30 (1)), the court held: “Where the owner of a parcel of ground has been deprived thereof by an incorporated company, for the purpose of appropriating the same as a bridge site, and by virtue of a provision of their charter an appeal had been taken from the commissioners or appraisers to a jury, and the latter were called upon to award just compensation to the land owner: Held, that the value and damage, at the time the land was taken, was the thing to be ascertained; but to discover this, the jury was authorized to look to the prospective value of the property as a bridge site, and to take that into consideration also, in determining what it was then worth.” (Italics ours.) And in the opinion (p. 38) the court said: “In such case, it would certainly be a great hardship, not to be tolerated in a free country, if a citizen owning a piece of land of this description, whose prospective value, derived from its situation as affording facilities for a bridge site, was as much his property as was its soil for planting purposes (it may, indeed, have been purchased with reference to such value), could be compelled to part with the same, and forced to give up his property in the prospective value of the ground, and receive only its value for agricultural purposes, or its value as a bridge site on the day when it is taken, estimated by the trade and travel which would that day have passed over it if the bridge had been built. Such could not be a case of just compensation.” There was considerable evidence as to the prospective value of the land under consideration; and the land’s facilities were as much the property of the owners as was the soil itself. When the Young-Harrison case again came to the Supreme Court, as reported in 21 Ga. 584, the court said (p. 589): “The verdict should have been for the full value of the land at the time it was taken,” and (p. 591): “We would advise that the witnesses be examined simply and directly as to the whole worth of the land taken from the Harrisons by the Irwinton Bridge Company, and for all purposes to which it may be appropriated.” (Italics ours.) In the case of Dougherty County v. Tift, 75 Ga. 815, the 2d headnote is as follows: “If a person owning land on both sides of a stream built a bridge across it for the use of the public, and charged tolls under the act of 1850, such a bridge was a public bridge; but whether it was a public or private bridge, if the county in which it is situated proceeds to take the land of such property owner and to erect another bridge, which causes damage to his property, he is entitled to just compensation; and to ascertain this, the cost of erection and the income derived from the bridge, together with all the other facts and circumstances calculated to enhance or diminish the value of the property taken or damaged, may be looked to.” In the case under consideration Willcox and Cook owned the land on both sides of the stream, and there was ample evidence of the cost of their ferry and the income derived therefrom, and that the building of the free bridge totally destroyed the value of the land for ferry purposes.

The highway board relies largely upon the case of Hudspeth v. Hall, 111 Ga. 510 (36 S. E. 770), in which it was held that if the authorities “grant the right to establish over the same stream such additional public ferries as the public convenience demands, and if the first grantee is injured by the establishment and maintenance of another public ferry, he has no right of action to recover damages therefor; it is damnum absque injuria.” This decision, if conflicting, will not prevail as against older decisions of the Supreme Court, and especially the case of Harrison v. Young, 9 Ga., supra. However, the Supreme Court in a later decision (Mitchell County v. Hudspeth, 151 Ga. 767, 108 S. E. 305), having fully in mind the Hudspeth-Hall case (reference thereto being made in the opinion), held that “Where one has land abutting .on both sides of a navigable river on which she maintains and operates a public toll ferry, and has other land adjacent thereto which is sought to be condemned by the county authorities of two counties, each of which lies upon opposite sides of the river, and the owner has filed an equitable petition against both the counties jointly, to enjoin them from proceeding to condemn her land under section 5206 et seq. of the Civil Code of 1910, and for recovery of damages by reason of the taking of her land for the purposes of building roads thereon and building a public free bridge across such stream, and the approaches thereto; it is proper, in order to arrive at just and adequate compensation in determining the value of such adjacent land talcen for the bridge and roads, that its prospective value as a bridge site and its present value as a ferry site may be talcen into the calculation." And in the opinion in that case (pp. 774, 775), the Supreme Court said: “Under the allegations of the present petition the land taken by the defendants from the plaintiff was for the avowed purpose of building a free bridge, and the approaches thereto, across the Flint river, and for this damage to her property she is entitled to just and adequate compensation; and in order to ascertain what this just and adequate compensation is, it seems to us, while the plaintiff has no exclusive right to establish and maintain a ferry on her land, as decided in Hudspeth v. Hall [supra], yet the value of the land taken by the county as a ferry or bridge site, and the approaches thereto, together with all the facts and circumstances calculated to enhance or diminish the value of the property taken or damages, may be inquired into. In the case of Dougherty County v. Tift, 75 Ga. 815, Blandford, Justice, delivering the opinion of the court, said: ‘ If Tift was the owner of the land through which the stream ran, on both sides, then, under the act of 1850, he had the right to erect a bridge over the same, and charge toll for crossing thereon; and whether the bridge be public or private, it belonged to Tift, and when the county of Dougherty takes this land and erects another bridge, which causes damage to Tift’s property, he is entitled to compensation therefor. Art. 1, sec. 3, par. 1, Constitution of Georgia; Code, § 5024. Whether the same is a public or private bridge, the question in such case is, what damage has the party sustained; and to ascertain this, the cost of erection, the income derived from the bridge may be looked to and considered by the jury, together with all other facts and circumstances calculated to enhance or diminish the value of the property taken or damaged.’ The Civil Code, § 688, provides: ‘In estimating the value of land when taken for public uses, it is not restricted to its agricultural or productive qualities, but inquiry may be made as to all other legitimate purposes to which the property could be appropriated.’ We are of the opinion that the plaintiff may show the value of the land for any legitimate purpose to which the land could be appropriated, including its value as a bridge site, and as a ferry, if any.”

Surely this recent decision, written in the light of former decisions, and referring to some of them, is authority to guide us in this case. See Mitchell County v. Hilliard, 159 Ga. 502 (126 S. E. 719). Section 781 of the Civil Code says: “In determining the value of land taken for a bridge, its prospective value as a bridge site and its present value as a ferry, if one is in use, may be taken into the calculation.” Let us not confuse the principle involved in these cases with that of the right of eminent domain. Of course, the public interest must be served, and Willeox and Cook must sell whether they would or not, and they can not demand an arbitrary, excessive sum for their property; but they are entitled to receive just and adequate compensation for their property or the damage they have suffered by virtue of its loss; and to hold otherwise would endanger the property rights of every free citizen within our Commonwealth.

We do not in the least doubt the soundness of the foregoing decisions upon which we base our decision in this case, but whether they are sound or not, we are bound by them; and under them Will-cox and Cook were entitled to recover the value of their land for “all legitimate purposes to which the property could be appropriated,” and the jury should have taken into consideration the-evidence of the availability of the land for a bridge site, the economy of placing the bridge at this place, the cost of the bridge, the income of the defendants from the ferry, the right of the defendants to operate the ferry, and the investment that the defendants had in the ferry. The jury having failed, as shown by their verdict, to consider this evidence, and the verdict being so small that it justified the “inference of gross mistake,” the trial judge erred in overruling the motions for a new trial made by Willcox and Cook. Upon a retrial of these cases we suggest, as was done by the Supreme Court in the Harrison case, 21 Ga. supra (in the case here, by agreement, the only issue being as to value of land taken and damages sustained by the plaintiffs), that evidence be taken as to the whole worth of the land taken, and for all purposes to which it may be appropriated. In determining the value of the land and arriving at just and adequate compensation, its value as a bridge site and its value as a ferry site should be taken into consideration.

It is unnecessary to pass on those grounds of the motions for new trial which are not covered by the foregoing rulings. The court did not err in any of the rulings complained of in the cross-bill of exceptions.

Judgment on both main bills of exceptions reversed; on cross-bill affirmed.

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


text:
    18821.
    18872.
    18873.
    18874.
    18875.
    18876.
    18877.
    18878.
    18879.
    18880.
    MOBLEY, superintendent of banks, v. SASSER et al. THE SAME v. BAKER et al. THE SAME v. BAKER et al. THE SAME v. SASSER et al. THE SAME v. WITHAM et al. THE SAME v. BAKER et al. THE SAME v. KENDRICK et al. THE SAME v. NILES et al. THE SAME v. SASSER et al. THE SAME v. RUSSELL et al.

    Decided July 11, 1928.
    Rehearing denied July 31, 1928.

      O. A. Parle, G. N. Davie, J. F. Kemp, for plaintiff.

      Dorsey, Shelton & Dorsey, Sutherland & Tuttle, Hooper & Hooper, F. L. Forrester, Little, Powell, Smith & Goldstein, Kendrick Scott, G. D. Rivers, Hoa'I Jackson, Reuben R. Arnold, Smith, Hammond & Smith, Smith & Millican, Boykin & Boykin, G. G. Minter, Hall, Grice & Bloch, Green S Michael, A. Sidney Gamp, Hollis Fort, R. G. LeSueur, W. A. Fuller, Fleming & Flerrwng, G. W. Foy, Howell, Heymm & Bolding, Branch & Howard, for defendants.
   Bloodworth, J.

(After stating the foregoing facts.) If any one of the several grounds of the general demurrers is good, the court did not err in sustaining the demurrer and dismissing the suit. Exercising our discretion we will discuss only two grounds of the demurrers.

First, that the right of action is not in the superintendent of banks, but is in creditors. It is apparent that each of these suits is based upon the provisions of section 2220 of the Civil Code of 1910. This section is not a legislative enactment, but a codification of the principle announced in Burns v. Beck & Gregg Hdwe. Co., 83 Ga. 471 (6) (10 S. E. 121). See Ham v. Robinson Co., 146 Ga. 442, 445 (91 S. E. 483); Howard v. Long, 142 Ga. 789, 791 (83 S. E. 852). This section was a part of our law long before the passage of the general banking act of 1919 (Ga. L. 1919, p. 135 et seq.), which was amended in 1925. Ga. L. 1925, p. 119 et seq. Section 2220 provided for liability, in certain contingencies, in favor of creditors. Hill v. Jackson Stores, 137 Ga. 174 (73 S. E. 13); Rosenheim Shoe Co. v. Horne, 10 Ga. App. 582 (2) (73 S. E. 953). Prior to the banking act of 1919 the Supreme Court had definitely decided that “the liability imposed by this code section (2220) is to the creditors directly, and is not an asset of the corporation -which can be collected and administered by a receiver of the corporation” (Rigbers v. Hathcock, 138 Ga. 120, 121, 74 S. E. 782); and that “the remedy is in equity by a petition brought at the instance of one or more creditors and in behalf of all other creditors who may come in and be made parties plaintiff to the action.” Hill v. Jackson Stores, supra. This liability could not be enforced by a receiver of the bank (Wells v. DuBose, 140 Ga. 187, 78 S. E. 767; Rigbers v. Hatchcock, supra), nor by a trustee in bankruptcy. Rosenheim Shoe Co. v. Horne, 10 Ga. App. 582 (2) (73 S. E. 953). The superintendent of banks of the State of Georgia is a statutory receiver. Bennett v. Green, 156 Ga. 572, 578 (119 S. E. 620). As such statutory receiver he has no authority except that conferred on him by statute. Under the foregoing rulings the superintendent of banks would have no authority to bring these suits. Has section 2220 been repealed, amended, or modified by direct legislation ? If so, we can not find it. Then as this section gives the superintendent of banks no authority to bring these suits, where does he get his authority? Does the banking act of 1919 give it to him? In no section of that act can we find such authority. However, counsel for the plaintiff in error insist that certain sections of that act do give him this authority, and especially that the amendment of August 21, 1922, which added a new section to the general banking act known as section 7 a (Ga. L. 1922, p. 65), empowers the superintendent of banks to bring these suits. We can not agree with this contention. This section does not give to 'the superintendent of banks, as contended by counsel for plaintiff in error, any authority to prosecute any cause of action which is vested by law in the bank or in its stockholders or the creditors thereof. That section is “in terms confined to such matters as relate to the assets of the bank as such, debts and liabilities due to the bank in its corporate capacity.” Hines v. Wilson, 164 Ga. 888 (2) (139 S. E. 802). The liability sought to be enforced by these suits is neither an asset of the bank nor a liability due the bank in its corporate capacity. So we find no authority whatever for the superintendent of banks to bring these suits.

Second, was the right of action in each of these cases barred by the statute of limitations? Yes. The petition in each case contains substantially the following allegations: “6. That at the time said bank was organized, same was illegally done, in that the law required the bank to have a minimum capital stock of twenty-five thousand ($25,000.00) dollars, with at least fifteen thousand ($15,000.00) dollars paid in, and ten thousand ($10,000.00) dollars of bona fide subscriptions. 7. That only the sum of fifteen thousand ($15,000.00) dollars was paid in for the capital-stock and no bona fide subscriptions over and above the same were had or obtained by the same bank. 9. That said defendants published and caused to be published advertisement, and represented to the Secretary of State that twenty-five thousand ($25,000.00) dollars in bona fide subscriptions had been made, all of which was a fraud upon the rights of the creditors whom the petitioner represents.” When was this fraud perpetrated ? Under the foregoing allegations it could not have been subsequent to the grant of the charter in each case. Not one of the charters of the banks involved was granted less than eight years ago. But counsel for the plaintiff in error urge that section 4360 of the Civil Code of 1910, which provides that “All suits for the enforcement of rights accruing to individuals under statutes, acts of incorporation, or by operation of law, shall be brought within twenty years after- the right of action accrues,” is authority for bringing such suits within twenty years after the right of action accrues. We can not agree with this contention. That this section is not applicable to the cases under consideration is shown by the decision of Judge Sibley and the Georgia cases he cites in Anderson v. Anderson, 23 Fed (2d) 331. Counsel for the plaintiff in error insist also that the right of action in each case did not arise until the closing of the bank. The basis of these actions is alleged fraud at the time the bank was organized. The right of bringing an action for such a fraud could not be postponed until the bank was closed. Whether each of these suits be designated as an action on an implied warranty, as insisted by some of the counsel for the defendant in error, or as an action for deceit, as suggested by others, such a suit is barred after four years from the time the right of action accrues. The court therefore properly sustained this ground of demurrer.

Judgment affirmed.

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


text:
    18952.
    SWANSON v. THE STATE.
    Decided July 11, 1928.

      E. E. Anderson, for plaintiff in error.

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

(After stating the foregoing facts.) Headnote 1 needs no elaboration.

The act of 1913 (Ga. L. 1913, p. 112) provides for the probation of persons who have been convicted of “misdemeanors or felonies which have been reduced to misdemeanors,” in the following words: “Where the defendant has been convicted either upon a trial or upon his plea, where the court has power to sentence such defendant to the chain-gang, jail or other place of detention in this State, where it appears to the satisfaction of the court that the circumstances of the case and the public good does not demand or require the defendant’s incarceration, said court may mold its sentence so as to allow the defendant to serve same outside the confines of the chain-gang, jail or other place of detention, under the supervision of the court, and in such manner and on such conditions as it may see fit.” The woids, “on such conditions as it may see fit,” are very broad, and this court will not say that the portion of the sentence of which complaint is made is not authorized by the terms of the act. See Towns v. State, 25 Ga. App. 419 (103 S. E. 724); Jones v. State, 27 Ga. App. 631 (110 S. E. 33).

Jxidgment affirmed.

Broyles, G. J.} and Buhe, J., concur,


text:
    18958.
    Gaynus v. Brown.
    Decided July 11, 1928.

      S. C. Townsend, for plaintiff in error.

      L. J. Cowart, G. B. Cowart, contra.
   Bloodworth, J.

The judge of the superior court sustained exceptions to the original answer of the justice of the peace and required him to answer again. Acting upon the “rectified” answer, the presiding judge did not err in overruling the petition for certiorari.

Judgment affirmed.

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


text:
    18960.
    CHERRY v. THE STATE.
    Decided July 11, 1928.

      McClure & McClure, S. W. Fariss, for plaintiff in error.

      James F. Kelly, solicitor-general, contra.
   Bloodworth, J.

1. There is no merit in the 1st special ground of the motion for a new trial.

2. In Cason v. State, 16 Ga. App. 820 (86 S. E. 644), the 4th headnote is as follows: “The evidence demanded the conviction of the accused, and it was therefore immaterial what the judge charged or failed to charge the jury.” See also the opinion in that case (pp. 824, 825). In Hagar v. State, 71 Ga. 164, headnote 3a is as follows: “The verdict was required by the evidence, and in such cases, even if there be error in the charge, it will not necessitate a new trial.” See also the opinion in that case, and cases cjfed on page 167; Jones v. State, 105 Ga. 649 (31 S. E. 574); Barrow v. State, 80 Ga. 191 (3), 193 (5 S. E. 64). Even if the court erred in the ruling set out in special ground 2, and in failing to charge the law as to an accomplice as complained in ground 4, these errors were harmless, as the evidence demanded the verdict.

3. “The grounds of the motion for a new trial which complain of the refusal of certain requests to charge are not complete and understandable withip themselves, as nope of them show or eypp allege that the requested instructions were adapted to the facts of the case or were authorized by any evidence adduced. Beavers v. State, 33 Ga. App. 370 (2) (126 S. E. 305); Sandersville R. Co. v. McDaniel, 37 Ga. App. 34 (138 S. E. 584).” Brazil v. LaGrange, 37 Ga. App. 500 (140 S. E. 782). This ruling disposes of the 3d ground of the amendment to the motion for a new trial.

4. There is ample evidence to support the finding of the jury.

Judgment affirmed.

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


text:
    18969.
    MONTGOMERY v. PADGETT.
    Decided July 11, 1928.

      H. H. Elders, for plaintiff in error. J. T. Grice, contra.
   Luke, J.

C. C. Padgett sued Charity Montgomery on a promissory note alleged to have been signed by her, and the jury rendered a verdict for the full amount sought to be recovered.

The defendant denied indebtedness, and further pleaded: (1) non est factum; (2) that she never received an attorney’s fee notice; and (3) that after the death of her first husband, E. Wells, in February, 1910, she paid the plaintiff the full amount due him by Wells on a promissory note for $89.61, which was due November 1, 1908, and that was all Wells owed him. The plea was amended by adding the following defense: “Now comes the defendant and says that the note sued on is for the debt of her husband — former husband of this defendant, and she is not liable for the same, as she was a married woman at.the time the note is alleged to have been signed.”

The note sued on was introduced in evidence. It was for the principal sum of $212.19, with certain credits thereon, dated August 9, 1911, due December 1, 1911, signed by Charity Montgomery by her mark, and witnessed by Frank Montgomery and J. A. Stan-field, a notary public and ex-officio J. P. The names of both witnesses were in Stanfield’s handwriting. There were four credits on the note which were not sued for. The mortgage given to secure the note was also put in evidence. It bore the same date as the note, was signed and witnessed in the same way, and covered 103 acres of land. There was also in evidence a warranty deed from E. Wells to the defendant, dated December 14, 1908, and covering the tract of land described in the said mortgage.

O. C. Padgett testified positively that Charity, Montgomery signed the said note and the mortgage at her home, and that the papers were witnessed by her husband and by J. A. Stanfield; that he accepted the note as full payment of his claim against the estate of E. Wells; that Wells, while Charity was his lawful wife, contracted the debt of $212.19 for which the note in suit was given; that all the payments made on the note by Charity were paid after the death of Wells, and that the note and the mortgage were given to take up the said debt of Wells. Charity Montgomery testified that she did not sign the note and the mortgage that Padgett said were signed by her; that E. Wells, her first husband, died in February, 1910, and that she married Frank Montgomery in April, 1911; that after Wells died Mr. Padgett told her Wells owed him about $80, and that she paid him that amount; that she never heard of the note sued on until Mr. Padgett’s lawyer wrote her about it in the first of 1926, and that her former husband, E. Wells, left no estate. Frank Montgomery testified that he did not witness either the said note or the said mortgage, and that neither Mr. Padgett nor Mr. Stanfield came to his home in August, 1911, and got the note signed, as Mr. Padgett testified.

The motion for a new trial, which was overruled, contained the usual general grounds, and one special ground assigning error upon the charge of the court. The note was in evidence, the defendant admitted receiving the attorney’s fee notice, and there was evidence that the defendant signed the note. Clearly the case hinges upon the special ground.

Plaintiff in error contends that the following excerpt from the charge of the court is not a correct statement of law and was injurious to her ease: “Though the defendant was a married woman at the time it is alleged that she signed the note and mortgage, I charge you that she could, even though she was married, assume the debt of a former husband.” If this is a correct statement of law, the judgment must be affirmed; if not, it must be reversed.

There is evidence that while the defendant was married to Wells he became indebted to Padgett; that on December 14, 1908, Wells deeded the land described in the mortgage to her; that after the death of Wells in February, 1910, she married Frank Montgomery, in April, 1911; that while married to Montgomery she executed the note sued on, as an original undertaking on her part to pay the debt of her deceased husband; that the said debt which had been made by said Wells and was a debt of his estate was extinguished by the note and the mortgage given Padgett by her, and that Wells left no estate.

The Civil Code (1910), § 3007, provides that “while the wife may contract, she can not bind her separate estate by any contract of suretyship, nor by any assumption of the debts of her husband, and any sale of her separate estate, made to a creditor of her husband in extinguishment of his debts, shall be absolutely void.” “The provision of the code which declares that a wife can not bind her separate estate for the debts of her husband does not affect the power of á widow to contract with reference to such debts after his death.” Walker v. Walker, 139 Ga. 547 (7-a) (77 S. E. 803), citing Mize v. Hawkins, 54 Ga. 500. To the same effect is the decision in the case of Booker v. Small, 147 Ga. 566 (2) (94 S. E. 999), which rules that “A wife has the right to assume the debts of the husband after his death, if she so chooses.” Speaking for the court in the case of Farmers & Traders Bank v. Eubanks, 2 Ga. App. 839, 841 (59 S. E. 193), Hill, C. J., held that the restrictions mentioned in § 3007 of the Civil Code, supra, “were designed to protect the wife against the ‘kicks and kisses’ of her husband, her conjugal leanings, the importunities of her husband’s creditors, and the pliant nature of feminine character.” In short, it appears that the statute under consideration was designed to protect the wife against the influence, direct or indirect, of her husband. In the light of the decisions quoted above, a widow needs no such protection as to the debts of her deceased husband. Is it conceivable that she would be less able to protect her property against such debts after she had taken nnto herself another husband? We think not. In our opinion the case sub judiee is controlled in principle by the following ruling in Tindol v. Breedlove, 19 Ga. App. 73 (90 S. E. 977): “While a married woman can not bind her separate estate by any contract of suretyship (Civil Code, § 3007), yet she may extinguish the debts of her son, or cause them to be extinguished, on her own credit, as an original undertaking, with a mortgage upon her property as security for the performance of her own contract. Freeman v. Coleman, 86 Ga. 590 (12 S. E. 1064); Finch v. Barclay, 87 Ga. 393 (13 S. E. 566). A mortgage given by a married woman to a creditor of her son, in extinguishment of a debt of the son, is valid. Villa Rica Lumber Co. v. Paratain, 92 Ga. 370 (17 S. E. 340)."

For no reason assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    18955.
    MARTIN v. THE STATE.
    Decided July 13, 1928.

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

      Roy W. Moore, solicitor, contra.
   Luke, J.

N. E. Martin was convicted in the city court of Macon on an accusation charging that he “did then and there unlawfully indulge in and do a notorious act of public indecency tending to debauch the morals, by taking pictures of Mrs. N. E. Martin, Madge Lewis, and another whose name is unknown, females naked limbs and private parts, on or near a public street and highway, known as Ocmulgee street and Second street, in the City of Macon, and at a place where the said act of indecency could have been seen by more than one person,” etc. The defendant demurred to the accusation, upon the following grounds: (1) No crime was charged. (2) No specific female was named as 'the one of whose limbs and private parts pictures were taken. (3) It was not alleged with sufficient particularity where the alleged crime was committed. (4) It was not charged that the defendant persuaded or compelled the alleged female to pose for the pictures. (5) “There is no law of Georgia making it an offense merely to make a picture of the naked limbs and private parts of a female, without more, unless said pictures were developed and .exhibited, and this is not alleged.” (6). “The word ‘posing’ is too indefinite and vague to charge any crime,” and posing’ pictures is contradictory to the charge of making pictures. The court overruled the demurrer, and by agreement the case was tried before the judge without a jury. In substance the evidence was as follows: On the day alleged in the accusation an officer of the city of Macon was called to go to the corner of Ocmulgee and Second streets. When he arrived there he saw Mrs. N. E. Martin and the other accused persons lying on a bank on the side of Ocmulgee street, where they could have been seen by more than one person. Mrs. Martin had her dress up and was exposing her private parts, and the others had their dresses up, exposing their limbs, and the defendant was standing over them with a kodak, taking a picture of the females. The officer arrested the defendant and took the kodak from him, and took the undeveloped films out of the kodak, and another role of films from the pocket of the defendant. The officer had the films developed, and one of them was the identical picture which he saw the defendant take of the females. All the developed pictures were introduced in evidence, and they show that the defendant had taken other exposures of the females than the ones the officer actually saw snapped, and that they were taken at the same place, and were reproductions of the private parts of Mrs. Martin and the naked limbs of the other females. The motion for a new trial contained the usual general grounds, and the special ground that the admission of such pictures in evidence, over objection, was a violation of the constitutional provision that “No person shall be compelled to give testimony tending in any manner to criminate himself.”

All participating in misdemeanors are guilty as principals; and the allegation that the defendant was taking pictures of the naked limbs and private parts of Mrs. N. E. Martin, Madge Lewis, and another, on a named public street and highway in the City of Macon, at a place where the act could be seen by more than one person, is certainly a sufficient charge that he was participating in the act of public indecency. The word “posing” does not appear in the accusation, and the demurrer in that regard, is “speaking.” The accusation was sufficiently definite as to the names of the females and the place where the crime was committed, and the demurrer was properly overruled.

Conceding, but not deciding, that the court erred in admitting in evidence the pictures of which complaint is made in-the motion for a new trial, this would not require a reversal of the judgment. The defendant did not make a statement denying the charge, and the undisputed evidence shows that the defendant was taking a picture of the private parts of his wife on the side of a public street where it could be seen by more than one person; and this act alone constituted a notorious act of public indecency, even if the pictures had never been introduced in evidence and even if they had never been developed. The officer swore that he “saw Mrs. Martin holding up her dress” and the defendant “-in the act of snapping the picture” and that “they could be seen by more than one person.” “What is decent and what is indecent are determined by the sensibilities and moral standards of a people, as evolved from generation to generation along with their civilization.” “When, by general consensus of the people and practical unanimity of public opinion, an act tending to debauch the morals is understood to be offensive to the common instincts of decency if done under particular circumstances, that act when so done is, in contemplation of law, a notorious act of indecency.” (Italics ours.) Redd v. State, 7 Ga. App. 576 (2, 4) (67 S. E. 709). It might reasonably be presumed that the defendant had no earthly reason for making the films if he did not intend to have them developed, and the only reason he did not have them developed was because of the intervention of the officer. Had he developed the films or had them developed, it might have aggravated his crime, if possible; but without regard to the admission of the pictures in evidence and the development of the films, the act theretofore committed by the woman and the defendant, both participating, was shockingly obscene, and notorious public and indecent conduct. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


author: Stephens, J.

text:
    18380.
    Haverty Furniture Co. v. Jewell.
   Stephens, J.

1. Evidence that the plaintiff’s foot slipped upon linoleum upon a floor and that the linoleum at that particular place had the appearance of having been gone over with an oil mop and of being at the time covered with if substance resembling oil, that the linoleum elsewhere had no such appearance as has just been described, but that the floor surrounding the strip of' linoleum had the appearance of having been freshly oiled, authorizes an inference that the plaintiff’s foot slipped as a result of a slick condition of the linoleum caused from a slick substance resembling oil upon the linoleum.

2. Evidence that the floor upon which the plaintiff claimed to have slipped was in the store of the defendant, and within the defendant’s custody and control, that the passageway over the floor at this point was not well lighted and somewhat dark, that the plaintiff, before she slipped, did not know of the slippery condition of the linoleum, although she had looked at it before she stepped upon it, that she had been in the store to make a payment upon her account with the defendant, and that when she slipped and fell she was. leaving the store by a passageway which led to the street, authorizes the inference that the plaintiff at the time of the injury was an invited guest upon the premises of the defendant, and that she, without negligence on her part, was injured as a result of a slippery condition of the linoleum due to the defendant’s negligence and to no fault on her part.

3. Where the court charged the jury that if the defendant used the most approved methods of cleaning and washing the linoleum, there could be no recovery by the plaintiff as a result of her having slipped upon the linoleum, “unless it is shown that the oil or grease was left or allowed to accumulate on the floor by the defendant,” this latter expression in the charge is not an unequivocal instruction that there could be a recovery against the defendant if the defendant allowed oil or grease to accumulate on the floor, without reference to the defendant’s negligence. If this charge contains any intimation that there could be a recovery against the defendant without any reference to negligence on the part of the defendant as respects the condition of the linoleum, this vice in the charge is cured and removed by the unequivocal instructions contained elsewhere in the charge to the effect that a recovery by the plaintiff is dependent upon negligence upon the part of the defendant as respects the conditions out of which the plaintiff’s alleged injuries arose.

4. No error of law appears. The evidence authorized the verdict in the amount found for the plaintiff; and since the verdict has the approval of the trial judge, this court is powerless to interfere.

Decided July 13, 1928.

Underwood, Haas & Gambrell, for plaintiff in error.

Dillon, Calhoun & Dillon, C. M. Austin, contra.

Judgment affirmed.

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


text:
    18397.
    Burnette v. Johnson et al.

    Decided July 13, 1928.

      Frank C. Tindall, for plaintiff.

      Morris, Hawkins & Wallace, for defendants.
   Stephens, J.

1. The validity of a replevy bond filed by a defendant in attachment as provided in the Civil Code, § 5113, is dependent upon the validity of the attachment; and where the attachment has been dismissed, no liability attaches against the surety on the replevy bond, notwithstanding the plaintiff in attachment may, after obtaining jurisdiction in personam over the defendant, have proceeded with the suit and obtained a common-law judgment thereon against the defendant. Bruce v. Conyers, 54 Ga. 678; Williamson v. Williamson, 154 Ga. 788 (115 S. E. 805). Anything to the contrary contained in Blakely Milling & Trading Co. v. Thompson, 34 Ga. App. 129 (2) (128 S. E. 688), must yield to the superior authority of the Supreme Court as expressed supra, which under the constitution of this State is controlling. See also Cincinnati Ry. Co. v. Pless, 3 Ga. App. 400 (60 S. E. 8).

2. The judge of the superior' court, after having sustained the traverse filed by the defendant in attachment to the plaintiff’s affidavit for attachment, denying the alleged ground for the attachment, namely, that the defendant “conceals himself,” did not, after a verdict found for the plaintiff against the defendant in personam in the suit preceding as at common law, err in failing and refusing to enter up judgment in favor of the plaintiff against the surety upon the replevy bond which had been filed by the defendant in attachment, replevying the property which had been seized under the attachment proceedings.

Judgment affirmed.

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


author: Bell, J.

text:
    18453.
    BOONE v. LORD.
    Decided July 13, 1928.
    2?. B. Hubbard, for plaintiff in error.

      G. H. Carswell, J. 8. Davis, J. F. Bloodworth, contra.
   Bell, J.

E. M. Boone brought suit against J. T. Lord Jr., for $1055.51, alleged to be due as the balance of the purchase-money for 496,624 feet of lumber of various kinds and grades, sold and delivered by the plaintiff to the defendant at different prices, grades B and No. 1 of pine lumber to be paid for respectively at prices stipulated, and grade No. 2 of pine lumber and all grades of the poplar lumber to be paid for at market value. The defendant in his answer claimed that as to each grade of the pine lumber he had not received the quantity alleged in the petition, and that, as to grade No. 1 of the pine lumber and as to the poplar lumber, the market value was less than the amount stated in the petition. The jury found in favor of the defendant, and the plaintiff’s motion for a new trial haying been overruled, he excepted.

In one ground of the motion for a new trial the plaintiff contends that he is entitled to a new trial because of the following occurrence: After the trial of the case had progressed through the charge of the court and the jury had retired to their room for deliberation, and after the trial of another case was begun, the hour being late in the afternoon, counsel for the plaintiff sought a leave of absence “until the night session,” in order that he might go “to his home in the same town, only a few blocks away from the court-house, for supper.” Counsel agreed that if the jury should make a verdict the same might be received by the court in his absence, and, upon this as the entire rmdorstanding, the court excused the attorney as requested. After the jury had considered the case for some time but before the night session,’ they indicated a desire for additional instructions, when the following communications were had between the court and the jury:

By the court: “Mr. Foreman, I got a message from the jury through their bailiff that you wanted to ask me some questions or make some statement to me. What is it ?”

By the foreman: “We want to know if we could deviate from that contention. We wish to ask the question if we could have the right to deviate or lessen the amount contended for in the verdict.”

By the court: “Well, gentlemen, you will bear in mind what I stated to you as to the contentions of the parties. Mr. Boone contends that there is a balance due him on this lumber that he furnished to Mr. Lord during the year 1925 of $1055.52. That is what he contends that was the balance due him. Mr. Lord contends that he does not owe Mr. Boone anything, that he has settled up with him according to his contract for all lumber that he actually received according to his contract. Now in the event'the jury finds under the law as given you in charge by the court, applied to the facts in evidence, that Mr. Boone is entitled to recover anything, you would just say, We, the jury, find for the plaintiff so many dollars and cents, with seven per cent, interest thereon from January 1, 1926, down to the present time. In the event you reach the conclusion that Mr. Lord has paid Mr. Boone in full according to the contract and does not owe him anything, you would say, ‘We,-the jury, find for the defendant. Does that answer your question ?”

By the foreman: “Yes, sir.”

By the court: “You all understand in the event you reach the conclusion that Mr. Boone is entitled to recover anything, whether it is $1055.52 or a less amount, you would specify the amount in your verdict. In the event you reach the conclusion that Mr. Boone is not entitled to recover anything, you would just say, We, the jury, find for the defendant.

Plaintiff contends that the court erred in giving the jury the above instructions in the absence of his counsel, who was absent by leave of the court and with the understanding with the court that in the meantime nothing would be done in the trial of the case except to receive the verdict; that the giving of such instructions in the absence of counsel was to deprive the plaintiff “of a trial by due process of law,” as guaranteed in the constitution of the State (see Civil Code (1910), § 6360).

A number of cases are cited in the brief of counsel for the plaintiff in error in support of his contention that a new trial is demanded as a result of the happenings referred to. In Bryant v. Simmons, 74 Ga. 405, the trial judge had the jury brought into the court-room and delivered another charge to them upon the main points in the case. In Martin v. State, 51 Ga. 567, the jury “were called back by the court to be recharged” on the general law of the case. We think the present ease, like the case of Roberson v. State, 135 Ga. 654 (70 S. E. 175), is to be distinguished from those eases “where the judge misled counsel or parties so as to permit them to leave the court in reliance upon an announcement that nothing would be done but to receive a verdict, and where some important step in the trial was taken in addition thereto.” What happened was merely that the jury inquired of the trial judge whether they might find a verdict in the plaintiff’s favor for a lesser amount than was sued for, and that he responded to the inquiry by answering in the affirmative. It is not suggested, nor does it appear, that anything by way of request, motion, or otherwise could have been done by the plaintiff’s attorney had he been present.

This was a civil case, and it seems that a new trial will not be so readily ordered in a civil case for happenings of -this sort as may be done in criminal cases. The occurrence was irregular, but it is inconceivable that the plaintiff was harmed or deprived of any substantial right as a result thereof. “In order to obtain in this court a reversal of a judgment of which complaint is made, the burden is upon the plaintiff in error to show not only error but injury.” First National Bank v. American Sugar Refining Co., 120 Ga. 717 (48 S. E. 326). There are some errors, of course, from which injury may be presumed, and in some cases the presumption may be conclusive. This is a case in which injury would probably be presumed but not conclusively presumed, that is, if it had appeared merely that the court had given a charge to the jury while the attorney was absent on leave, without the effect of the same being shown, this would probably have made a prima facie case of prejudicial error; but since the assignment of error discloses fully and in detail just what occurred, and since, from the facts thus shown, it affirmatively appears that the plaintiff was not prejudiced, a new trial should not result. See, in this connection, Miller v. State, 13 Ga. App. 440 (79 S. E. 232). Confining our opinion to the particular facts of this case, we think the occurrence above described did not require a new trial. There is no merit in any of the other special grounds of the motion for a new trial.

Coming now to the general grounds of the motion, we are still unable to agree with the able counsel for the plaintiff in error, who has so diligently and earnestly sought to establish that the verdict is contrary to the evidence and the law. A painstaking effort has been made to demonstrate that even by the defendant’s own pleadings and evidence a verdict against him was demanded. As intricate as was the task, we have carefully examined the evidence, for the purpose of passing upon this contention, and have determined that we can not hold with the plaintiff in error upon this point. Nor can we say that a verdict for the plaintiff was demanded either by his evidence or from all the evidence together.

The chief issue between the parties in the court below seems to have had reference to the quantity of lumber delivered, although, as stated above, there was a difference also as to the amount to be paid for two classes of the lumber. The plaintiff alleged in his petition that he had delivered 15,385 feet of poplar lumber and the following quantities of pine: 29,059 feet of Grade B; 9683 feet of Grade No. 1; 442,497 feet of Grade No. 2, making a total of 496,624 feet. The lumber, as delivered, was counted by the defendant, and was not counted by the plaintiff. Statements were rendered to the plaintiff by the defendant from time to time showing the quantities received and counted, and it was upon these statements that the plaintiff arrived at his conclusion that he had delivered the quantities set forth in his petition. In support of his case as thus laid, the plaintiff brought these statements into court and testified from them. He read them in evidence, and then testified: “I don’t understand the letters and figures, but that is all I ever got on it. I got that at the office. There is 15,385 feet of poplar that I delivered to the planer. The total amount of lumber, as shown by the bills read to the jury, is 496,624 feet. The total of No. 2 stuff as shown by those bills is 442,497 feet, of B, 29,059 feet, of No. 1, 9,683.” The statements were afterwards introduced in evidence, and are set out in full in the record. From our addition of the figures contained therein we think the plaintiff by duplication or otherwise (apparently the former) has made an error somewhere which, without more, will fully account for .the discrepancy between his contention and that of. the defendant as to the quantity of the lumber. There is no difference between the parties as to the quantity of poplar lumber. By our calculations from the statements referred to, the following are the aggregate amounts of pine lumber: grade B, 22,399; grade No. 1, 8,303; grade No. 2, 363,997; total, 394,699 feet. It thus appears that the difference between the amount of lumber the plaintiff actually delivered and that which he thinks he delivered is 86,540 feet, and that his claim was to this extent excessive. Taking what appears from the evidence to be the aggregate quantity delivered of each grade, and allowing to the plaintiff therefor the price alleged in his petition, and then taking the amounts which the plaintiff showed had been paid, there is no balance whatever in his favor.

Whether these conclusions were demanded by the evidence as a matter of law, they were at least authorized as a matter of fact, and the jury were fully warranted in finding for the defendant. There was no error in refusing a new trial.

Judgment affirmed.

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


text:
    18530.
    MULHERIN v. NEELY et al., executors.

      Decided July 13, 1928.

      F. M. Price, W. K. Miller, for plaintiff.

      FulTbrigM & Burney, for defendants.
   Bell, J.

J. C. Mulherin filed suit against the executors of R. C. Neely to recover the amount of a number of open accounts which the plaintiff had' purchased at public sale from the trustee of a corporation bankrupt, R. C. Neely Company. The petition showed that the accounts were entered upon the company’s books as charges against various individuals, and that they were sold as accounts against these persons as the debtors, but the petition further alleged that R. C. Neely during his lifetime was engaged extensively in the business of farming, and that the persons so appearing upon the books of the bankrupt to be the debtors were Neely’s sharecroppers; and that the goods were actually bought and delivered to Neely upon his credit, he in turn delivering the same to the other persons in whose names the accounts were entered. It is averred that “while the indebtedness herein sued on and the obligation upon which this suit is based was designated by the trustee in name of said share croppers, yet plaintiff alleges that said names of the share croppers were mere trade names of said R. C. Neely, and that such a designation by the trustee in sale to plaintiff is a designation of the indebtedness of said R. 0. Neely to said Neely Company by the use of his said farm trade names in said conveyance to plaintiff as trustee, and that title to said obligation against said R. 0. Neely as so indicated is now vested in the plaintiff.” Upon the basis of these averments it is contended that what appeared to be a number of accounts against various distinct persons was in fact but one account against a different person, namely R. C. Neely, and that his estate is liable for the aggregate amount of the indebtedness. The superior court sustained a general demurrer and dismissed the petition, and the case is here upon exceptions to that judgment.

Even though the petition may have shown a liability against the estate of R. C. Neely and in favor of the bankrupt or the trustee in bankruptcy, it wholly fails to allege a right of action in favor of the plaintiff Mulherin. What appears to have been a sale of certain accounts against various individuals can not be converted by construction into the sale of a liability of a person whose name was not known in the transaction, merely by alleging that the person sought to be held incurred the indebtedness upon his own sole credit, not in his own name but in the names of the others as so many trade names in which he transacted business. This would be a clear contradiction of the written terms of the trustee’s sale and would amount to nothing less than an attempt to claim a right which the plaintiff had not purchased. If the indebtedness had been against E. C. Neely and not against the other persons referred to, the estate might not have been insolvent. Such could be true in a given ease although it might not have been true in the particular case. The accounts in question amounted to upwards of $31,-000, and' these, with other claims, amounting in the aggregate to more than $100,000, were purchased by the plaintiff for a very small consideration. If it had been the intention of the trustee to sell an account against E. C. Neely and this had been known to the buyers, the accounts might have been sold for a very much larger sum, — in fact a larger consideration might have been exacted.

We fully recognize that a person may transact business in a trade name. The instant petition may, perhaps, allege this fact sufficiently. It fails to show, however, that either the trustee in bankruptcy or the plaintiff knew of that fact at the time of the sale of the accounts, or that such fact was made known to the court, or was in the contemplation of any person concerned.

We fully agree with the learned trial judge in his holding that “the said Mulherin having only acquired the title in said sale to such claims and demands as the E. O. Neely Company had against the several named and alleged debtors, the purchaser at said sale could not now convert those claims into claims against the estate of E. C. Neely, he not having purchased any claims or demands against him.” Compare 7 C. J. 243; Shesler v. Patton, 114 App. Div. 846 (100 N. Y. Supp. 286, 17 Am. Bk. R. 372); Seger v. Fabacker (La.), 34 Am. Bk. R. 89; In Re Levinson (D. C.), 297 Fed. 490, affirmed in 1 Fed. (2d) 851.

Judgment affirmed.

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