author: Luke, J.

text:
    14771.
    Rentz v. Hagan.
   Luke, J.

1. The motion to dismiss the writ of error is without substantial merit. Ga. L. 1911, p. 150, § 3.

2. Where, in the trial of a purchase-money attachment, the defendant claimed that he was entitled to a certain credit against the amount of the plaintiff’s claim, by reason of a garnishment proceeding instituted by the plaintiff against the defendant, the court did not err in charging as follows: “I charge you, in reference to the garnishment proceedings that have come into this case, that, before the defendant could claim any credit for’ anything on account of the garnishment proceedings instituted by the plaintiff, it would be incumbent on the defendant to show, first, that under these garnishment proceedings some amount had been obtained by the plaintiff—that is, show that something had been recovered by the plaintiff as a result of the garnishment proceedings. The mere fact that the garnishment proceedings had been instituted, or the fact that such a proceeding was or is pending, would be no defense for the defendant, until such garnishment proceedings have been terminated and it has been shown that these are funds arising from the garnishment proceeding which are to be applied to plaintiff’s debt.”

3. In order to be considered by this court, the ground of a motion for a new trial assigning error upon the charge of the court must segregate from the entire charge the part or parts thereof constituting the alleged error. Park’s Ann. Code, § 6084, and notes on “Assignment of error.”

(a) Where, by- consent of the parties, a distress warrant and a purchase-money attachment are tried together, and, in the course of the charge, the court instructs the jury that “The propositions of law as I have laid down and given you apply to both cases being tried,” this instruction may be either proper or erroneous, depending upon the nature of that part of the charge preceding it. A ground of a motion for new trial assigning error upon the excerpt here quoted, but failing either to quote or to indicate the nature of any part of the charge preceding it, presents no question for decision.

4. The evidence, though conflicting, authorized the verdict, which has the approval of the trial court. The special grounds of the motion for a new trial are without substantial merit; and the judgment of the lower court overruling the same will not be disturbed.

Decided March 6, 1924.

Attachment; from city court of Nashville—Judge W. R. Smith. May 2, 1923.

John P. & Deivey Knight, for plaintiff in error.

R. A. Hendricks, contra.

5. This court not being convinced that the writ of error in this ease was prosecuted for the purpose of delay only, the request of the defendant in error that damages be awarded him is denied.

Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    14772.
    Rentz v. Hagan.
    Decided March 6, 1924.
    Distraint; from city court of Nashville—Judge W. R. Smith. May 2, 1923.

      John P. & Dewey Knight, for plaintiff in error.

      R. A. Hendricks, contra.
   Luke, J.

1. The motion to dismiss the writ of error is without substantial merit. Ga. L. 1911, p. 150, § 3.

2. The evidence, though conflicting, authorized the verdict. Considered in connection with the entire charge, the excerpts therefrom upon which error was assigned áre not subject to any of the criticisms urged against them, and no reversible error is. made to appear.

(a) Under the 4th division of section 6149 of the Civil Code (1910), this court might, on its own motion, require the clerk of the trial court to certify and send up omitted parts of the record. In this case, however, it clearly appears that the judgment of the lower court should be affirmed whether such omitted part of the record be considered or not.

3. This court not being convinced that the writ of error in this case was prosecuted for the purpose of delay only, the request of the defendant 0in error that damages for such delay be awarded him is denied.

Judgment affirmed.

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


text:
    14790.
    Rome Railway & Light Company v. Jackson.
   Luke, J.

1. The court did not err in overruling the demurrer to the petition.

(a) “A person occupies the position of a railroad passenger as respects the railroad company, who, having approached the railroad for that object, undertakes, with its express or implied consent, to travel in the car provided by it for the purpose.” Georgia Ry. & Elec. Co. v. Cole, 1 Ga. App. 33, 34; (57 S. E. 1026); Smith v. Seaboard Air Line Ry., 10 Ga. App. 227 (73 S. E. 253); Western & Atlantic R. Co. v. Voils, 98 Ga. 446 (26 S. E. 483, 35 L. R. A. 655); 4 Elliott on Railroads, § 1579.

Decided March 6, 1924.

Action for damages; from Floyd superior court—Judge Wright. June 9, 1923.

1. Because of injuries from being struck by a street-car of an electric-railway company when he was about to board a street-car of the same company, on a parallel track in the City of Rome, Jackson sued the company. The defendant demurred on the grounds: (1) No cause of action is stated in the petition. (2) The allegations show that the plaintiff, of his own accord, walked directly into the path of an oncoming street-car which could have been clearly seen by him, and by the exercise of ordinary care he could have avoided the consequences of the negligence complained of. (3) The allegations do not show that the plaintiff was a passenger of the defendant, but show that he had not become a passenger and was not entitled to extraordinary care, as alleged' in paragraph 10 of the petition; and defendant prays that this paragraph be stricken. (4) It is not shown that the injury was not caused by the plaintiff’s own negligence and that he could not have avoided the injury by the exercise of ordinary care and diligence.

In the petition it is alleged, that at a described point in a named street the defendant has a double track used for cars passing each other in going from Rome to Lindale, and vice versa, where there is a stopping point at which the defendant receives and discharges passengers. Petitioner was walking in a southerly direction on the sidewalk on the right-hand side of the street, between four and five o’clock in the afternoon of the 20th of October, 1922, and, for the purpose of going to Lindale on a car of the defendant, which was standing on the right-hand track, he walked from the sidewalk and went in front of that car, and “got around over on the front left-hand side of” the car, that being the only way to get into it at that place. Immediately upon his going to the door of the car for the purpose of getting into it, and while waiting for the conductor and motorman in charge of it to open the car door and let him in, a street-car of the defendant, coming from Lindale and going in a northerly direction, suddenly and quickly came running up on the other track, which ran parallel to the track on which stood the car that he was in the act of boarding, and struck him on the right hip, and inflicted injuries described. He does not know the names of the conductors in charge of the cars. In paragraph 10 it is alleged: “Petitioner . . , having gone to said place where passengers of the defendant are received and discharged, with the intention of boarding a street-car of the defendant, and being almost in the act of getting on said car, . . petitioner was in fact and in law a passenger of the defendant company, and, as such passenger, was entitled to extraordinary care and diligence on the part of the agents and employees of the defendant company.” He alleges further, that he was in the exercise of due care for his own protection and safety at •the time he was injured, and that his injuries were occasioned solely by the negligence of the agents and employees of the defendant. His back was turned to the oncoming car which struck him, and the motorman in charge of it saw him or by the exercise of ordinary care could have seen him, and knew or should have known that he was at that place for the purpose of boarding the street-car, and that he was in the act of boarding it. The motorman in charge of this oncoming car was inexperienced and did not know how to handle the car with proper diligence and caution, “in that when he saw petitioner standing at said street-car and near the track . . he knew or should have known that he could not run the . . car by him without striking him.” It was the grossest kind of negligence to run the street-car against petitioner, and this gross negligence renders the defendant liable in damages to petitioner. Petitioner did not know and had no reason to believe that the motorman would run the car up to and against him, and had no reason to anticipate that the motorman would do anything but stop the car and not hit him. The act of the motorman in driving the car against hint amounted to recklessness, negligence, and carelessness.

2. The court did not err in charging the jury relative to whether or not the plaintiff was, as alleged in the petition, a passenger of the defendant street-railway company at the time of his injury.

3. There is no merit in that ground of the motion for a new trial which complains that the court erred in permitting counsel for the plaintiff to propound to a witness certain alleged leading questions. The questions propounded were not leading questions, and, even if they had been, the allowance of such questions is within the sound discretion of the trial court, and there appears to have been no abuse of this discretion in the instant case. Wilborn v. Barnes, 28 Ga. App. 254 (4) (110 S. E. 738).

4. The other special grounds merely amplify the general grounds; and, there being evidence to authorize the verdict returned, the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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

The ground of the motion for a new trial to which paragraph 2 of the decision refers is as follows: “The court charged the jury as follows: 'He says that he was in law a passenger on this street-railway company, that he had arrived at their stopping place, the place where they took on and discharged passengers, and that he was in front of the door, waiting to get on the car and waiting for the door to open, where he was invited by the defendant railway company to be, and that he became in law a passenger, and that this defendant owed him extraordinary care not to injure or hurt him. . . You may look further and see whether or not the plaintiff was a passenger of the defendant railway company. I charge you, if you should find in this case that this place, at which the plaintiff was alleged to have been in his petition, was a regular stopping place for the taking on and discharging of passengers, and if you find that the plaintiff had arrived at the place for taking on and discharging of passengers, and he was standing there waiting for the car to open, with the intention of entering the car and becoming a passenger, and the car was there at the time, then I charge you, in law, he would be a passenger.’ Movant insists that this charge was error, in that neither the pleadings nor the evidence were sufficient to authorize the charge as given; . . that nowhere in the pleadings were facts alleged to show that plaintiff was a passenger at the time of his injury, nor did the proof introduced.upon the trial show that he was a passenger; that it was not alleged or proven that the conductor in charge of defendant’s car, that plaintiff alleged he wanted to enter, was notified in any way by plaintiff that he wanted to enter said car, or that said conductor recognized or accepted him as a passenger, or did any act towards permitting plaintiff to enter the car or to be received as a passenger; that plaintiff was not in any act of boarding said car at the time he was struck. Movant insists that the law governing street-railroads . . requires some act on the part of a person proposing to become a passenger, towards actually entering a street-car, and some act on. the part of the employee of the street-railroad in charge of the car showing acceptance of the person as a passenger, before such person can become a passenger. Merely standing on the street before an act of entry and acceptance does not make a person a passenger as a matter of law. For which reason movant insists said charge was error, and a new trial should be granted because of the extra burden of care placed upon defendant because thereof.”

Linton A. Dean, Lamar Gamp, for plaintiff in error.

Porter & Melane, contra.


text:
    14801.
    Douglas v. Virginia-Carolina Chemical Co.
   Luke, J.

1. A plea to a suit on a note, that so far as the defendant could ascertain, six tons of the fertilizer for which the note was given did not have any of the ingredients of commercial fertilizer and were absolutely worthless, “because the same as mixed was unsuited to the soil and crops for which it was intended and bought,” is not a good defense to a fertilizer note containing the following stipulations: “which fertilizer I accept without warranty from the company or its agent as to its quality or value, leaving me to rely solely on the fact that the laws of this State have been complied with.” Arlington Oil & Guano Co. v. Swann, 13 Ga. App. 562 (4) (79 S. E. 476); Branson v. Piedmont Fertilizer Co., 16 Ga. App. 546 (85 S. E. 767).

2. It was not error to strike an amendment to the defendant’s answer, setting up that six tons of 9-3-0 fertilizer “did not contain any amount of phosphoric acid or nitrogen, or any other thing available as plant food, and was therefore worthless as a fertilizer and of no commercial value.”

(а) Especially was this true after the plaintiff had introduced in evidence a certified copy of the official analysis from the office of the commissioner of agriculture, snowing that 9-3-0 “Edisto” actually contained 10.08% of phosphoric acid and 1.76% of nitrogen.

(б) It follows that the court correctly repelled evidence to sustain the stricken pleas.

3. There was evidence warranting the jury’s finding against the defendant’s contention that the note sued on was void because the laws of the State as to analysis, inspection, tagging, branding, and registration had not been complied with.

4. The suit being on a fertilizer note for the principal sum of $715.84, with interest from October 1, 1918, at 8 per cent, per annum, and the verdict and judgment, dated February 22, 1922, being for $554.22 principal and $143.99 interest, and the defendant having pleaded that the six tons of 9-3-0 “Edisto,” sold to him as containing 9 per cent, of phosphoric acid and 3 per cent, nitrogen, contained only 1.76 per cent, nitrogen, which was 40 per cent, less nitrogen than it was represented to contain, and that he was entitled, under the law, to have an abatement of $90.55 from the purchase price of the fertilizer, because the deficiency in nitrogen reduced the commercial value of the fertilizer more than 3 per cent, below the guaranteed analysis, that a deduction cf $219.15, alleged to be the 25 per cent, damages plus the shortage allowed where fertilizer is falsely branded or tagged Dy reason of a deficiency in tlie nitrogen ingredient of more than 10 per cent, below the guaranteed analysis of such fertilizer, should also be allowed the defendant, that an additional deduction of if'M.55 as the 25 per cent, damages allowed where, by reason of a deficiency in one of its ingredients as guaranteed, the value thereof fell more than 3 per cent, below its guaranteed analysis, and the certificate from the office of the commissioner of agriculture introduced by plaintiff showed that the manufacturer’s guaranteed analysis was 2.47 per cent, nitrogen, while the official analysis showed 1.76 per cent, nitrogen, and rfiat the commercial value of the fertilizer claimed by the manufacturer was $31.29, while the commercial value found by the State chemist was $27.40, and the plaintiff having sworn: “The price of this ‘Edisto’ was $40, with $2 off, making it $38, with 38 cents freight added,” an arithmetical calculation clearly shows that under the pleading and the evidence as applied to the law governing such cases, the evidence would have sustained a larger verdict than the one actually found for plaintiff. Therefore the evidence supported the verdict. Civil Code (1910), §§ 1774, 1778 (b), 1778 (c), and 1778 (d); Arlington Oil & Guano Co. v. Swann, supra; Terry v. Swift, 21 Ga. App. 431 (94 S. E. 658).

Decided March 6, 1924.

Complaint; from Atkinson superior court—Judge Dickerson. May 22, 1923.

Levi O’Steen, for plaintiff in error.

Grantham & Roberts, contra.

5. The court’s charge gave to tne defendant the benefit of the only defenses he had under the law and the pleading, there was ample evidence to sustain the verdict, and the record discloses no reversible error.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    14959.
    Taylor et al., receivers, v. Scott.
    Decided March 6, 1924.
    Complaint; from city court of Macon—Judge Gunn. July 27, 1923.

      A. L. Miller, Jones, Parle & Johnston, for plaintiffs.

      Hall, Grice & Bloch, for defendant.
   Bloodworth, J.

The motion for a new trial in this case contained no special grounds. Acting without the intervention of a jury the judge, under the law and facts of the ease, rendered a judgment for the defendant; and as there is evidence to support the finding, this court will not disturb it.

Judgment affirmed.

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


text:
    14977.
    McQuarie v. The State.
    Decided March 6, 1924.
    Indictment for embezzlement; from Appling superior court— dudge W. E. Thomas. July 10, 1923.

      V. E. Padgett, Wilson & Bennett, for plaintiff in error.
   Bloodworth, J.

In answer to a question certified by this court the Supreme Court said: “According to the facts stated in the question propounded by the Court of Appeals, the trial court erred in overruling the ground of the motion for a new trial based on alleged newly discovered evidence that one of the jurors trying the case was disqualified because related within the prohibited degree to named stockholders of the bank from which the accused was convicted of the offense of embezzling funds.” Eor full opinion see 157 Ga. 380 (121 S. R. 316).

As a new trial must result from the ruling of the Supreme Court, it is unnecessary to consider the other allegations of error. The errors complained of are not likely to recur.

Judgment reversed.

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


author: Per Curiam. Luke, J.,

text:
    15012.
    BROADNAX, alias GRASSY, v. THE STATE.
    If the court erred in admitting evidence as to the alleged dying declaration, the error was rendered harmless by an admission made by the' accused in his statement at the trial.
    Under the evidence as to the homicide, which was committed by throwing a piece of a brick at the deceased, the accused was guilty of murder or of voluntary manslaughter; and the court did not err in not charging the jury on the law as to involuntary manslaughter iij the commission of an unlawful act. (Luke, J., dissents.)
    Decided March 6, 1924.
    Conviction of voluntary manslaughter; from Colquitt superior court—Judge W. E. Thomas. September 1, 1923.

      James L. Dowling, for plaintiff in error.

      G. E. Hay, solicitor-general, Eva. L. Hay, contra.
   Per Curiam.

1. It is complanied that the court erred in admitting in evidence an alleged dying declaration. The brief of evidence discloses that the deceased was killed with a brickbat thrown from the rear, that the blow rendered him unconscious, and that upon regaining consciousness his first inquiry was as to why a certain person other than the defendant had struck him. He was then told that the brick bat was thrown by the defendant, and not by the other person. Hpon ascertaining this fact he made the dying declaration, the admission of which is complained of. The gist of the complaint was that the deceased was stating what he had learned from others, and not what he claimed to know of his own knowledge. Conceding, but not deciding, that the admission of such evidence was error, the error was rendered harmless by the defendant’s admission, in his statement to the jury, that he had inflicted the mortal wound. Garnett v. State, 10 Ga. App. 109 (5) (72 S. E. 951).

2. It is complained that the court erred in failing to charge the jury the law of involuntary manslaughter in the commission of an unlawful act. The undisputed evidence showed that the deceased and the defendant had a quarrel and a fight, that the defendant threatened to kill the deceased, that he (the defendant) broke a brickbat into two pieces and put them in his pocket, and about an hour or two afterwards hit and killed the deceased with one of the pieces of the brickbat. The undisputed evidence also showed that the defendant was an expert thrower with rocks and bricks, and had killed birds and animals with them. Under these facts the defendant was guilty of murder or of voluntary manslaughter, and the court did not err in failing to charge the law of involuntary manslaughter in the commission of an unlawful act.

3. The evidence authorized the defendant’s conviction, and 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. Lulce, J., dissents.

Luke, J.,

dissenting. I cannot agree to a judgment of affirmance in this case," for, under all the facts adduced upon the trial, I am of the opinion that the law of involuntary manslaughter was involved, and consequently it was reversible error for the trial judge to fail to instruct the jury on this subject. See Jordan v. State, 124 Ga. 780, 781 (53 S. E. 331); Dorsey v. State, 126 Ga. 634 (55 S. E. 479).


text:
    15137.
    Camp v. The State.
   Luke, J.

1. Section 186 of the Penal Code (1910), as to embezzlement by bank officers and employees, is superseded by section 20 of article XX of the banking act of 1919 (Ga. L. 1919, p. 216) so far as the two statutes cover the same offenses, because of the different penalty-prescribed by the later act.

’2. The indictment alleged, in substance, that the accused, being cashier of the Bank of Shiloh, and having, by virtue of such office, the custody and control of the bank’s funds, did unlawfully, with intent to defraud the said bank, embezzle and steal $13,257.74 of its funds so intrusted to him; that said amount was not taken in a lump sum, but consisted of various lesser sums received by said cashier for said bank from divers persons at different times during the years 1917 to 1921, both inclusive, amounting in the aggregate to the sum stated; and that the embezzlement of said aggregate amount was affected by making false entries on the books of the bank and false reports of the bank’s condition, by abstracting its cash, and by other means to the grand jurors unknown, all with the intent and purpose on the part of the accused to defraud said bank. The date of the offense, as alleged at the beginning of the indictment, was January 1, 1921. After so setting out the offense the indictment further alleged that all of said acts of the- accused were by him kept concealed and remained unknown until January 11, 1921. Eeld:

(a) The indictment was not subject to general demurrer.-

(b) It did not misjoin in one count separate and distinct offenses of different natures.

(e) It did not undertake to charge, or have the effect of charging, the offense of making a false report of the bank’s books, so as to authorize a conviction for either of those offenses, but the sole purpose of the allegations touching such matters was to set forth the fraudulent means used by the accused in effectively committing and concealing the series of embezzlements with which he is charged.

(d) It is not necessary to allege in such a case that the embezzlement was committed without the bank’s consent.

(e) Where the thing alleged to have been embezzled or stolen is a trust fund, no description thereof is necessary beyond a statement as to the amount of it and of the facts constituting the trust.

(f) Where, as in this case, the alleged embezzlements extend over a long period of time and embrace numerous transactions with divers persons at different times, a bill of particulars is not a necessary part of the indictment, even as against a timely special demurrer. “To specify particularly what money was received and embezzled would be impossible, and such a requirement would render the statute ineffectual.” Jackson v. State, 76 Ga. 571 (13).

(g) The allegation that all the alleged unlawful acts of the accused remained unknown until a stated date is sufficient, when proved, to prevent the statute of limitations from applying to so much of such acts as may appear to have been committed more than four years prior to the filing of the bill of indictment.

(h) The indictment was sufficient to withstand all of the grounds of demurrer urged against it, and the judgment overruling the demurrer was not erroneous.

3. The court gave in charge to the jury that section of the banking act of 1919 which defines the offense of embezzlement (Ga. L. 1919, p. 216, see. 20), and further instructed the jury as follows: “Should you find from the evidence that the defendant, while acting as cashier'—in the capacity of cashier—of the Bank of Shiloh, issued a time certificate to his mother for $900, and that the bank did not receive the money for the same, and that such certificate was wrongfully and fraudulently issued, and that the defendant was either directly or indirectly benefited, then I charge you that you ought to convict the defendant; otherwise not.” This excerpt from the charge is assigned as error, on the ground, among others, that it relates to and authorizes a conviction for an offense not embraced in the bill of indictment. Held:

(а) While the above-cited section of the banking act provides, in part, that “any officer . . of any bank . . who issues or puts forth any certificate of deposit . . with intent . . to injure or defraud the bank . . . shall be punished,” etc., thus defining a separate and distinct offense, yet. in the indictment now under review no such offense is alleged to have been committed.

(б) The part of the charge here complained of was erroneous for the reason that there was no indictment on which to predicate it.

4. The State introduced evidence tending to show that a certain sum of the bank’s money was embezzled on January 11, 1921, while the accused was in charge as cashier. It appears that, on the trial, minutes of the board of directors were exhibited to the court, disclosing that on January 6, 1921, the accused was discharged as cashier, and was succeeded in that office by E. B. Trammell, who is the prosecutor in this case. In the prisoner’s statement to the jury he declared that he was in fact discharged as cashier on January 6, 1921; that he thereafter had nothing whatever to do with the bank; that a certain page of the minutes cited by him would so show, and he challenged the State to offer the minutes in evidence. It does not, however, appear that the minutes were offered in evidence by either side, nor does any reason for such failure on the part of either side appear. In this state of the record the accused presented a timely written request for the court to charge as follows: “I charge you further that the defendant insists and contends that he was not the cashier of the Bank of Shiloh after the 6th day of January, 1921; that he was not the cashier of the bank on the 11th day of January, 1921. Before you would be authorized to convict the defendant for abstracting funds from the Bank of Shiloh, if they were abstracted after the 6th day of January, 1921, and on the 11th day of January, 1921, you would have to be satisfied beyond a reasonable doubt that he was the cashier of the bank at that time. If he was not the cashier of the bank at that time, even though you believe from the evidence he in fact abstracted funds from the bank, you would not be authorized to convict him for abstracting funds at a time when he was not cashier of the bank.” The court’s refusal so to instruct tne jury, either in the form requested or in substance, is assigned as error. Held;

{a) While the stealing of a bank’s money by a former officer or employee, after complete severance of his connection with the bank, is an indictable ■ offense, yet it is not the offense of embezzlement as charged in this case.

(6) Documents exhibited to the trial judge, but not introduced in evidence for consideration by the jury, require no instruction to the jury.

(c) While, in the absence of a timely written request, a defense disclosed by the prisoner’s statement alone does not necessitate an instruction to the jury, yet where, as in this case, a specific defense is so set up, and an appropriate written request applicable to such defense is timely presented, it is tne duty of the court to give it in charge to the jury, if not in the words of the request, at least the material substance thereof.

(d) Under the facts of this case the refusal to give the requested charge was error requiring the grant of a new trial.

(e) It is not to be inferred from this ruling that proof of such subsequent larcenies would be irrelevant upon another trial of the case, or not illustrative of the defendant, s intent and bent of mind touching such of the alleged offenses as may be then proved.

5. As a general rule, the highest and best evidence of the election or employment of a particular person as cashier of a bank is to be found in the minutes of the bank’s board of directors; and before parol evidence thereof can bo introduced, over timely and proper objection, the minutes must be produced or accounted for, or it must appear that the board’s action was informal or was not entered on the minutes, or some other foundation for the introduction of secondary evidence must be laid.

(a) It appearing that the minutes were in court and in the possession of the prosecutor, and that they would disclose the facts touching such official connection with the bank, and no foundation whatever being laid

■ for the introduction of secondary evidence covering much of the period of time in question, and there being no contention that the accused was de facto cashier, it was erroneoiis for the court to allow the prosecutor to testify, over timely and appropriate objection, that the accused was annually so employed by the bank’s board of directors for the entire period, the existence of such official capacity being an essential element of the offense of embezzlement as laid -in the bill of indictment.

6. “Where facts can be ascertained only by an examination of a large number of details on books of account, it is permissible for an expert accountant, who has made an examination of the books and figures, to testify as a witness and to give a summarized statement of what the books show, provided the books themselves are made accessible to the court and to the parties.” Cabaniss v. State, 8 Ga. App. 129 (14) (68 S. E. 849).

(a) But where, as in this case, such books are neither introduced in evidence nor accounted for, it is erroneous to admit in evidence such summarized statement, over timely and appropriate objection specifically pointing out that the books from which it was made have been neither introduced nor accounted for.

7. To be relevant, “the evidence must relate to the questions being tided by the jury, and bear upon them either directly or indirectly.” Civil Code (1910), § 5744. In the application of this rule to trials for embezzlement it has been held permissible to prove acts of extravagance on the part of the accused, the amount and sources of his income, the amount reasonably necessary to maintain himself and family in the manner in which they were maintained during the period in controversy, fraudulent practices on his part to increase his income and cover up his defalcations, and other like matters, not only on the question of intent, but also to show his bent of mind for the commission of the particular offense charged in the bill of indictment on trial. Bulloch v. State, 10 Ga. 47 (1); Jackson v. State, 76 Ga. 552 (8); Bridges v. State, 103 Ga. 21 (3) (29 S. E. 859); Green v. State, 26 Ga. App. 109 (6) (105 S. E. 634). Applying this rule to the facts of the instant case, it is held:

(a) The court did not err in admitting the evidence set out in grounds 3, 4, 5, and 10 of rue amendment to the motion for new trial, this evidence tending to show that the accused, though a married man, was, during the period in controversy, lavishing at least a part of his affections upon a woman other than his wife, one wno lived in a different town, and presenting her with a fur, a diamond ring, and a few other less expensive presents.

(5) Nor did the court err in admitting- the evidence set out in grounds 8, 15, 16, and 17, this evidence tending to show that the accused, during the period of his employment as cashier, committed crimes and irregularities in connection with his work as cashier other than those charged in the bill of indictment. Such evidence was admissible on the question of intent and to illustrate the defendant’s bent of mind.

(c) It was, however, erroneous (as complained of in the twelfth ground) for the court to allow the prosecutor’s sister to testify, over timely and appropriate objection, to the substance of a conversation had between her and the accused with, respect to Green’s case, supra, giving the surmises of each as to the probable outcome of the case at the time it was on .trial, buch evidence was irrelevant to any issue before the jury, and was calculated to prejudice the minds of the jury against the accused.

8. “The right of cross-examination, thorough and sifting, belongs to every party, as to the witnesses called against him.” Penal Code (1910), § 1044. “The state of the witness’s feeling to the parties, and his relationship, may always be proved for the consideration of the jury.” Penal Code (1910), § 1049. “In determining where the preponderance of evidence lies the jury may consider . . the witnesses’ . . interest or want of interest, and also their personal credibility so far as the same may legitimately appear from the trial.” Civil Code (1910), § 5732. Applying these principles to grounds 7 and 9 of the amendment to the motion for a new trial, the court erred as therein complained of.

(a) One of the controlling questions, under the evidence and the prisoner’s statement, was whether the alleged embezzlement was the work of the president or of the cashier of the bank. The president was the prosecutor. The cashier was the defendant on trial. One of the principal witnesses relied upon by the State was D. B. Kendrick, who was employed by the prosecutor as an expert accountant to examine the books of the bank and make a report of its condition. It appears that for several months the books had been in the exclusive possession of the prosecutor, and inaccessible to the accused, and revealed different hand-writings, and that the accountant’s work upon the books was done during the period of the prosecutor’s exclusive control. In ground 7 it is complained that the court, on objection by the State’s counsel, refused to permit the accused to show by the witness Kendrick, on cross-examination, that he (Kendrick) had refused to let the defendant’s counsel have a copy of his summarized report of the bank’s condition, because the prosecutor would not agree for him to do so. In ground 8 it is complained that the court, on objection by the State’s counsel, refused to permit the accused to show by this witness, on cross-examination, that he (Kendrick) was being paid $20 per day by the prosecutor for all time consumed by him in attendance upon the court as a witness in this case. The evidence thus excluded should have been permitted to go to the jury.

Decided March 6, 1924.

Indictment for embezzlement; from Harris superior court— Judge Custer presiding. September 24, 1923.

J. B. Lunsford, Hardy & Peavy, Morris, Hawkins & Wallace, for plaintiff in error.

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

9. Since the ease is to be tried again, no ruling is now made with respect to the sufficiency of the evidence. The rulings and charges complained of other than those herein specifically dealt with are not likely to recur upon another trial. For the reasons pointed out above, it was error to overrule the motion for a new trial.

Judgment reversed.

Broyles, O. J., and Bloodavorth, J., concur.


author: Bboyles, O. J.

text:
    15165.
    Friedman v. First National Bank of Madison.
   Bboyles, O. J.

1. The petition, upon which the attachment issued, set forth a cause of action, and the court did not err in 'refusing to dismiss the petition and the attachment upon the oral motion of counsel for the defendant.

(а) The allegations of paragraphs 4, 5, 6, 9, and 10 of the petition were relevant and material, and the court did not err in overruling the motion of defendant’s counsel to strike them, upon the grounds that they were irrelevant and immaterial and set forth no legal grounds upon which the attachment could issue. Nor were the allegations contained in paragraphs 7 and 8 of the petition so indefinite and defective as to render , them subject to the motion to strike.

(б) Where an affidavit to obtain an attachment is made by the agent of the party seeking it, the agent may swear that the amount claimed to be due is true to the best of his knowledge and belief. Civil Code (1910), § 5056. See also Levy v Millman, 7 Ga. 167 (1). The instant case differs from that of Brown v. Massman, 71 Ga. 859 (2) (cited and relied upon by counsel for the plaintiff in error), in that the affidavit in that case, which was held to be defective, qualified the grounds of the attachment, whereas in the instant case the agent in his affidavit swore positively as to the grounds of the attachment, and qualified only tlie statement as to tlie cmnouni of the indebtedness. Chronicle and Constitutionalist v. Rowland, 72 Ga. 195. There is, therefore, no merit in the contention of counsel for tlie plaintiff in error that the attachment should have been removed because the grounds of the attachment were not positively sworn to in the affidavit of the plaintiff’s agent.

Decided March 6, 1924.

Attachment; from Morgan superior court—Judge Park. April 29, 1923.

The petition for attachment was by the First National Bank of Madison against W. Friedman & Brother, a partnership composed of W. Friedman and Phil Friedman, and against the property of W. Friedman individually, and was filed March 26, 1923. In the petition it is alleged: that the partnership operates a mercantile business in the city of Madison, Morgan county, Georgia, that W. Friedman resides in that county, and that Phil Friedman resides in Polk county, Georgia; that the partnership is indebted to the plaintiff on four described promissory notes (copies of which are exhibited), of dates beginning in 1922, and due respectively on March 28, 1923, and on subsequent dates; that these notes were executed by the firm through W. Friedman, for the purpose of evidencing a loan made to the firm by the plaintiff; that subsequently the partnership suffered a loss by fire which destroyed and injured the stock of merchandise in its store-house; that the firm had certain policies of fire insurance on the stock of goods, and that some of the policies were paid to “him” by the companies issuing them, but'that there is one policy due to the firm which has not been paid.

Paragraphs 4 to 10 inclusive allege, in substance: (4) The plaintiff made the loan to the partnership because of the existence of the stock of goods, which was of such value as to make the plaintiff feel secure in granting the loan. (5) Since the fire the firm has been operating a business at another store in Madison, conducting what is called a “fire sale,” from the stock damaged by fire and water. (6) The firm is rapidly disposing of all its property in the county of Morgan, the merchandise yet remaining on its shelves is liable for the payment of its debts, and the firm is not replacing the goods by purchasing others in the same amount or values. (7) The insurance policies represent a loss arising from the stock of goods by total destruction by fire or by damage from fire or water, or both, and the goods are liable for payment of the partnership debts. The proceeds of the policies are being concealed by the partnership for the purpose of avoiding payment of its debts. (8) The partnership is concealing its property, consisting of money arising from the sale of its goods in the fire sale, and this is done for the purpose of avoiding payment of its debts. (9) Tlie said W. Friedman, manager of the business, is planning to remove from the limits of this State, and has made several trips into a neighboring State for the purpose of finding a place to locate, and, unless the remedy afforded by a writ of attachment is given to petitioner, petitioner will suffer loss. (10) The said W. Friedman is threatening to convey the said property to certain of his relatives, in payment on what petitioner believes to be fictitious debts, and such threatened convejrance of his property is for the purpose of avoiding the payment by defendant of the debts of the partnership.

2. On an application to remove an attachment granted ex parte under the provisions of section 5088 of the Civil Code of 1910, the judge, in passing upon the facts adduced upon the hearing, is vested with a wide discretion, similar to that which he has in cases of injunctions, and such discretion will not be controlled unless it plainly appears to have been abused. Falvey v. Adamson, 73 Ga. 493 (3).

3. Under the above rulings and the particular facts of this case, this court cannot say, as a matter of law, that the judge abused his discretion in refusing to remove the attachment and ordering it to continue.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

It is further alleged: (11) Petitioner attaches hereto the affidavit of T. M. Douglas, cashier of the First National Bank of Madison, setting up the truth of the allegations contained therein. (12) Petitioner appends hereto bond payable to. the defendant partnership in double the amount sworn to be due by said partnership to petitioner. The bond has been duly attested and the affidavit of the security has been attached, showing that “he is worth more than the legal exemptions and liens on his property than the amount of the bond.” (13) The said sums of indebtedness are not yet due, and before they become due great loss will be suffered by petitioner unless the writ of attachment issues. Wherefore petitioner prays: (1) that this petition for writ of attachment be considered by the court, together with all the exhibits and affidavits attached; (2) that the bond attached hereto be approved as good and sufficient by the court; (3) that the petition for attachment be granted and be issued in the usual form; (4) that summons of garnishment issues upon the attachment and be directed to London & Lancashire Fire Insurance Company; (5) that the clerk of the superior court be ordered to file this petition, with all entries of service thereon and all levies that may be made thereunder.

In the attached affidavit referred to in the petition the affiant 'states: that he is the cashier of the First National Bank of Madison ; that W. Friedman & Brother are indebted to the said bank in a stated sum; that he is authorized to make this affidavit for the purpose of securing attachment .against W. Friedman & Brother, a partnership composed of W. Friedman and Phil Friedman; that the . allegations of fact contained in the foregoing petition are true; that he is familiar with the accounts of the First National Bank of Madison, and that “the sum of indebtedness named herein is true to the best of his knowledge and belief.”

The petition to remove the attachment was by W. Friedman. It was alleged therein that the indebtedness mentioned in the petition had not matured; the allegations as to fraud and collusion were denied, and it was alleged that Phil Friedman was not at the time of the creation of the indebtedness or thereafter a partner of W. Friedman, and that the business mentioned was conducted by W. Friedman individually under the trade name of W. Friedman & Brother.

The judge, afier hearing evidence, passed an order as follows: “The application to remove the attachment in the above-stated case was tried before me . . on April 7, 1923. . . Since said hearing I have carefully examined the records and the principles of law applicable to the facts. While W. Friedman, the applicant to remove the attachment, claims that the firm of W. Friedman & Brother dissolved in April, 1922, by his purchasing the interest of Phil Friedman, yet he continued his business under the name of W. Friedman & Brother arid executed the note to the bank as such, and there is no evidence before me that the First National Bank of Madison had any actual knowledge of such dissolution, and, under the law, where a person is held out to the world as the member of a partnership, he is responsible for the debts. See on this the case of Shapleigh Hardware Co. v. McCoy & Son, 23 Ga. App. 265, and authorities cited therein. Under the testimony of the respondent W. Friedman before me, he admitted that he had been paying money to his brother Phil Friedman, and that, he had deposited some of his money in said bank in the month of March, 1923, in the name of his wife. Therefore, under these admissions, taking into consideration the law as contained in sections 5066 and 5088 [of the Civil Code of 1910], it would be my duty to continue the attachment of the said case, and therefore the application to remove said attachment is denied.”

The bill of exceptions was taken first to the Supreme Court, and the case was transferred by that court to the Court of Appeals. 156 Ga. 717.

B. B. Lambert, for plaintiff in error.

Williford & Dulce, contra.


text:
    15167.
    Stanley & Gravitt v. Roberts Brothers.
    Decided March 6, 1924.
    Complaint; from Whitfield superior court—Judge Tarver. October 2, 1923.

      Maddox, McOamy & McFarland, for plaintiffs in error.

      George G. Glenn, Jolm G. Mitchell, contra.
   Luke, J.

1. Where, without notice to creditors, a partnership is dissolved by the retirement of one of the partners, and the continuing partner agrees to assume the debts of the firm, and liability of each partner to creditors of the firm remains the same as before the dissolution, although as between the copartners themselves the dissolution agreement is enforceable. Richards v. Butler, 65 Ga. 593.

(a) Where actual notice of such a dissolution agreement and of the terms thereof is subsequently given to creditors, the retiring partner becomes, as to all creditors with such notice, a mere surety for his copartner, and must thereafter be so treated by all creditors with such notice, even though they were not parties to the dissolution agreement. Preston v. Garrard, 120 Ga. 689 (48 S. E. 118, 102 Am. St. Rep. 124, 1 Ann. Cas. 724); Grigg v. Empire State Chemical Co., 17 Ga. App. 385 (87 S. E. 149).

(5) But where a creditor is himself a party to such a dissolution agreement, expressly agreeing to release the retiring partner from and to look solely to the continuing partner for the payment of the firm’s debt, and in pursuance thereof the retiring partner delivers to the continuing partner the entire interest and equity of the former in the firm’s assets, the contract is binding and enforceable against copartners and the creditor alike, the undertaking of each party constituting a sufficient consideration to support the undertakings of the others. Civil Code (1910), § 4242.

2. The defendant Gravitt and the defendant partnership having pleaded a defense of the character last above indicated (which, as against a demurrer thereto, must be taken as true), the court erred in striking the original plea, and in disallowing the proffered plea, on the ground that the alleged release was a mere nudum pactum. The subsequent proceedings were nugatory.

Judgment reversed.

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


text:
    15168.
    TRAWICK v. POOL.
    There was no material variance between .the affidavit to foreclose a laborer’s lien and the plaintiff’s evidence as to the contract under which he cultivated the crops levied on; and the verdict was authorized by the evidence.
    Decided March 6, 1924.
    Lien foreclosure; from city court of Sandersville—Judge Goodwin. October 6, 1923.

      J. J. Harris, for plaintiff in error.

      J. Hines Wood, contra.
   Bloodworth, J.

Ed Pool made an affidavit to foreclose a laborer’s lien against J. W. F. Trawick, alleging in part that “Affiant is a farmer and laborer working on shares during the year 1922 with J. W. E. Trawick of said State and county; that affiant cultivated a two-horse farm and cultivated the said crops of corn, peas, and beans raised thereon to maturity during said year; that his contract with the said J. W. F. Trawick was that affiant was to have for his said labor on said farm one half of all the crops raised by him the present year.” Under the evidence the jury were authorized to find that Pool agreed to run a two-horse farm on the land of Trawick under a contract in substance as follows: Trawick was to furnish the land, mules, plow-fixtures, etc, and Pool was to furnish the labor necessary to make the crop; Pool was to plant ten acres in cotton, all of which was to belong to him, and ten acres in corn, all of which was to belong to Trawick; and the rest of the two-horse farm was to be planted in corn, beans, and peas, and these crops were to be equally divided between the contracting parties. The jury were also authorized to find that the plaintiff worked the crops properly; that he planted about ten acres in cotton and a like amount in corn; that Trawick received the corn raised on the ten acres, and that Pool got the cotton raised on the other ten acres. This was a compliance by Pool with his agreement as to the ten-acre tracts, leaving for division only the crops raised on the other portions of the land. The levy was only on these crops. Under the facts we cannot say that there was a fatal variance between the allegations of the affidavit to foreclose and the proof, or that the verdict is without evidence to support it.

Judgment affirmed.

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


text:
    15170.
    ROWDEN et al. v. SCHACKTER.
    The evidence authorized the verdict complained of, which was a finding on a dispossessory warrant in favor of a landlord against a tenant for double rent for one month, it appearing from uncontradicted evidence that the tenant had held the rented premises for one month beyond the period of the sixty-days notice prescribed by law for such eases, as well as beyond his term of rental, for which he had made no payment.
    Decided March 6, 1924.
    Certiorari; from Eulton superior court—Judge Humphries. October '30, 1923.

      B. B. Jaclcson, for plaintiffs in error.

      Hewlett & Dennis, contra.
   Luke, J.

Mrs. Schackter instituted in the municipal court of Atlanta her statutory proceeding against Rowden to evict him from certain premises as a tenant holding over and beyond his term. He interposed his counter-affidavit, averring that his term of rent had not expired and denying that he was holding over and beyond his term. By amendment he alleged that he had previously occupied the rented premises at $75 per month, under a written contract, and that he subsequently accepted the plaintiff’s written offer to rent him the premises in question “at the price of $65 per month as long as defendant wished to occupy the same at said price.” He further alleged that, in pursuance of the latter agreement, he expended $15 in painting the floor of the house and paid a water bill of $2.20 for the plaintiff, which sums he sought to set off against her claim for rent. He admitted his indebtedness to her “in the sum of $57.30 for one month and four days rent at the price of $65.00 per month, less the sum of $17.20 herein set out.” Hpon the trial Mrs. Schackter testified that she had previously rented the premises to Rowden at $75 per month, under a written contract; that in April, 1922, he wrote her for a reduction of the rent; that she thereupon reduced the rent to $65 per month for two months, with the understanding that, at the end of that period, she would repossess the premises for the purpose of remodeling the house; and that he thereafter paid only $65 per month for the rented premises. The notice to vacate was dated June 7, 1922, and the sixty-day period expired August 6, 1922. The premises were vacated on September 6, 1922, the defendant leaving one month’s rent unpaid. To establish his alleged contract at $65 per month, tbe defendant testified that, in April, 1922, he received from plaintiff a letter saying: “I have changed my mind in regards to remodeling the building, and if you have not made other arrangements, you may stay there as long as you desire to stay. Please notify me by return mail.” He testified that the original letter was lost, and undertook to quote its contents from memory. No effort to show the defendant’s written acceptance of that offer was made. The plaintiff denied having written any such letter, and no proof was offered to show that her name was signed thereto either by her or by authority from her. Defendant further testified to his alleged expenditures for painting the floor of the house and for water, but claimed no authority from the plaintiff for so doing other than his reliance upon the alleged letter which he claimed to have received from the plaintiff as above set out. The jury returned a verdict in favor of the plaintiff for double rent for one month. On certiorari the finding of the jury was sustained by the superior court, and a writ of error was then brought to this court.

Under the pleadings and the evidence, the verdict was demanded. Eulings in the admission and exclusion of evidence, of which complaint is made in the petition for certiorari, are not of such materiality as to affect this result; and, where the verdict is demanded by the evidence, alleged errors in the charge of the court afford no cause for setting the verdict aside.

Judgment affirmed.

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


author: Bbovees, O. J.

text:
    15173.
    Wardlaw v. Chattanooga Savings Bank.
   Bbovees, O. J.

1. Where A sues B upon a past-due promissory note, executed by B and payable to the order of C, and where the copy of the note, attached to the petition, fails to show any indorsement or transfer of the note Dy C, and where the petition fails to allege (except upon the copy of the notice as to attorneys’ fees, attached as an exhibit to the petition, which notice B’s answer admits was served upon him) that the note was transferred from 0 to A, the petition, while possibly subject to a timely and appropriate special demurrer, sets out a cause of action, the presumption being that A, the holder of the note, is also the owner of the note.

{a) In such a case a plea which merely denies the allegations of indebtedness in the petition amounts to nothing more than a plea of the general issue, and is properly stricken on demurrer. Akers v. Decatur Street Bank, 16 Ga. App. 262 (1) (85 S. E. 201), and citation. And before the plea in this case was stricken it was not error to disallow an amendment alleging tliat tlie plaintiff was not entitled to recover because “this suit is brought by the Chattanooga Savings Bank, a corporation, upon a note alone, payable to .the Central Loan & Savings Company Inc., a totally different corporation, and there is no allegation that the plaintiff has any title or interest in said note, or how, and nothing is shown by the note, attached as Exhibit A to the petition, that the same belongs, legally or equitably, to any one save the payee named in it.” This amendment, by itself or together with the original answer, did not set up any good defense to the suit. It failed to deny the execution of the note, did not plead payment thereof, did not deny that the plaintiff was the lawful and bona fide holder of the note, and dia not allege any other fact which showed that the defendant was not liable. The proffered amendment merely pointed out some amendable defects in the petition. It might have been good as a demurrer, but was wholly devoid of merit as an answer to the petition.

Decided March 6, 1924.

Complaint; from Walker superior court—Judge Wright. September 5, 1923.

Henry & Jackson, for plaintiff in error.

Rosser & Shaw, contra.

2. The plea having been properly stricken, it was not error to direct a verdict in favor of the plaintiff for the full amount sued for.

Judgment affirmed.

Luke and Bloockoorih, JJ., concur.


text:
    15174.
    MITCHELL v. TURNER.
    The evidence demanded a verdict in favor of the plaintiff, and it was error . for the court to overrule his motion for a new trial.
    Decided March 6, 1924.
    Appeal; from Henry superior court—Judge Persons. October 23, 1923.

      Reagan & Reagan, for plaintiff.

      E. M. Smith, for defendant.
   Luke, J.

Mitchell brought suit against Turner upon an open account, alleging an indebtedness of $200 for the plaintiff’s interest in an engine and boiler owned by them. Turner denied each paragraph of the petition. The evidence for the plaintiff was briefly as follows: that he owned a two-thirds interest and Turner a one-third interest in a boiler and 'engine; and he sold his two-thirds interest to Turner for $200, which has never been paid; that the sale came about in this way: Turner came to his home and asked him if he did not want to sell his two-thirds interest, and he told Turner that he would take $200 for it; that Turner said he would take the boiler and engine if it did not cost too much to fix it up, and that he would go over to Hampton and see what it would cost to fix it up; that shortly thereafter Turner moved the engine away to his own plabe, and came over and jacked up the boiler, putting sills under it and painting it; that later he went to Turner to get pay or a note for the boiler and engine, and Turner said “times was hard and he.did not have the money, but would pay him if he would give him time;” and that at that time Turner said nothing about not wanting to buy the boiler and engine, or about the cost of repairing it, and did not say that he would not take it. Another witness for the plaintiff testified that he heard Turner say that he owned the boiler and engine, having bought MitchelPs two-thirds interest in it. Another witness for Mitchell testified that in conversation with Turner about getting some timber and sills he stated that he had bought a boiler from Mitchell.

Turner in his own behalf testified as follows: that he went to the home of Green Mitchell and asked Mitchell if he would not sell the boiler and engine, and what he would take for his part—the two-thirds interest; that Mitchell said he would take $200, and Turner said that he would give him $200, provided it did not cost too much to fix them up, and that he would find out what it would cost to have them fixed; that he went to Hampton and had a negro to look at the engine, and the negro said it would cost about $20 to “re-habit” or fix the engine, and that he got the engine and carried it home, and had never had it fixed, and still had it at his home; that he carried sills up there and jacked up the boiler, which was down on one end, and put these sills under it, and that he thereafter went there and painted the boiler, to preserve it, because he had an interest in it, that he never did ask Mitchell to paint it, and that all this was after he told Mitchell he would 'take the boiler and engine if it did not cost too much to fix them up; that he never did go back and tell Mitchell he would not take them or tell Mitchell it would cost too much; that he also had John Smith to go there and look at the boiler, and Smith told him it would need new flues and would take 44 flues, and that he later on, in August, went to Atlanta to find out what the flues would cost, and found that they would be $6 apiece, and that it would cost him something over $264 to fix up the boiler with new flues; that it was in January, 1920, when he went to Mitebell to buy the boiler and engine, and that he never at any time went back to Mitchell to tell him he would not take the boiler and engine; that he admitted talking to Stone in presence of Patterson at Weems’ gin, , and told Stone that he had a better boiler and engine than the ones at Weems’ gin, but did not remember that he told Stone that he had bought the boiler and engine from Mitchell and was going to put in two gins. He testified also that C. H. Griffin did come to his place to get some timber or sills, and that he told Griffin that he had some sills up there under the boiler at Green Mitchell’s.

The evidence is positive and uncontradicted that Turner moved the engine away; that, upon being approached by Mitchell for pay for the boiler and engine, he pleaded hard times and asked for indulgence, and that he did not tell Mitchell that he would not take the boiler and engine or that it' cost too much to repair them, or anything of the kind. He admitted having the engine in his pos-1 session, and his every act was such as to justify but one conclusion. Indeed, he did not deny that he stated to two other persons at different times that he had bought the boiler and engine from Mitchell. Hnder the evidence, a judgment was demanded in favor of Mitchell, and it was error to overrule his motion for a new trial.

Judgment reversed.

Broyles, G. <7., and Bloodworth, J., concur.


author: Bboyles, C. J.

text:
    15176.
    Smith v. Meigs Lumber & Manufacturing Co.
   Bboyles, C. J.

1. In a suit by a broker for commissions, where the petition shows that the plaintiff received from the defendant a letter in which the defendant stated that he owned a certain amount of timber which he wished to sell, and that if the plaintiff would send him a buyer he would allow the plaintiff, as a commission, a stated per cent., not on a fixed contract price, but on whatever amount should be agreed upon by the owner and the procured purchaser; and where the petition fails to show that the plaintiff ever answered the defendant’s letter, but merely alleges that “in pursuance of said contract” the plaintiff interested a third person in the property, and that this person, within a few days thereafter, went to the owner and made a contract with him, under which he acquired the property, and the petition fails to show that the plaintiff notified the defendant, before the consummation of the sale, that the prospective purchaser had been procured by him, and fails to show that the defendant, before the sale of the property, had any notice or knowledge whatsoever that the 'prospective purchaser had been interested in the property by the plaintiff, and fails to show that tlie defendant did not deal with the purchaser as an original customer procured by him (the owner) ; and where the petition shows that after the receipt of the defendant’s letter several months passed before the property was sold, and fails to show that the defendant, in agreeing upon the purchase price of the property, had any knowledge, or was chargeable with any knowledge, that he would be liable for commissions, the petition, construed -(as it must be) most strongly against the plaintiff, fails to set out a cause of action, and is subject to be dismissed on general demurrer. See, in this connection, Mobley v. Tinsley, 31 Ga. App. 259 (120 S. E. 437).

Decided March 6, 1924.

Complaint; from Thomas superior court—Judge W. E. Thomas. October 16, 1923.

H. n. Merry, Branch & Snow, for plaintiff.

Titus & Delete, for defendant.

{a) In the instant ease the petition shows that the defendant, in his letter to the plaintiff, stated that he had the timber for “sale” and offered the plaintiff commissions upon -the “sale” if he would send him a “buyer,” and that the person interested in the property by the plaintiff acquired it under a “lease” and not by a “sale.” However, in this decision it is conceded (but not decided) that, under the terms, of the lease and the other facts of the case as shown by the petition, the lease was tantamount to a sale, within the meaning of that word as used in the defendant’s letter to the. plaintiff. -

2. Under the above ruling and the allegations of the petition in the instant case, the court did not err in dismissing the petition on general demurrer.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15177.
    COLEY v. THE STATE.
    A conviction of voluntary manslaughter was authorized by the evidence as to what the defendant said after the homicide and his statement at the trial, from which it appeared that he killed his wife by stabbing her several times on discovering her in a pine thicket about sunrise with a man who fled, and that when discovered they were “acting just like man and wife.”
    Decided March 6, 1924.
    Conviction of manslaughter; from Houston superior court— Judge Malcolm D. Jones. November 3, 1923.

      John R. Cooper, W. 0. Cooper Jr., J. W. Bloodworth, for plaintiff in error.

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

The record in this case shows that one morning about sun-up the defendant found his wife and Robert Johnson in a pine thicket, “acting just like man and wife,” that Johnson escaped, and that the wife was stabbed several times by the defendant;-that the defendant said, “Kobert got away, I couldn’t get him, but I got her,” and “I put my knife to her.” In his statement at the trial he said: “I found Eobert Johnson and my wife down there just like man and wife; so by being kinder dark and I couldn’t see, and I stepped right up on them for certain. I run into them, and the first one I got to I cut them. I thought that I was cutting Kobert Johnson, until my wife hollered, and then I stopped.” The wife died during the morning. In August v. State, 20 Ga. App. 168 (1) (92 S. E. 958), this court said: “According to the testimony for the State, touching statements made by the defendant immediately after the tragedy, he discovered his wife and her paramour engaged in the act of adultery, and immediately slew them both with an axe, without engaging in any parley or altercation, but acting inferably under the influence of irresistible passion, and without any admixture of deliberation or revenge. The statement of the accused to the jury was not in conflict with the evidence of the State. There was therefore ample testimony to authorize the verdict of voluntary manslaughter.” The facts in the case under consideration are so very much like those in the case from which we have just quoted that the principles announced in that case are controlling in this one.

The court did not err in charging on voluntary manslaughter, and the verdict for this offense is supported by the evidence.

Judgment affirmed.

Broyles, G. J., and Lulce, J., concur.


text:
    15178.
    Underwood v. The State.
    Decided March 6, 1924.
    Indictment for larceny of automobile; from Lamar superior court —Judge Persons. October 20, 1923.

      Dobbs & Barrett, for plaintiff in error.

      T. J. Brown, solicitor-general, contra.
   Bboyles, O. J.

The defendant’s conviction was authorized by the evidence, and none of the special grounds of the motion for a new trial shows reversible error.

Judgment affirmed.

Jmhe a/nd Bloodworth, JJ., concur.


text:
    15179.
    O’Berry v. Davis.
   Luke, J.

1. In an action lor damages for an alleged malicious criminal prosecution, the controlling issues are (1) whether the prosecution was carried on maliciously, and (2) whether it was carried on without any probable cause. Civil Code (1910), § 4439; Joiner v. Ocean Steamship Co., 86 Ga. 238 (12 S. E. 361); Thornton v. Story, 24 Ga. App. 503 (2) (101 S. E. 309).

2. Evidence is relevant when it relates to the questions being tried by the jury and bears upon them either directly or indirectly. Civil Code (1910), § 5744.

3. Applying the foregoing principles to the facts of this ease, the plaintiff having introduced in evidence a copy of the indictment alleged to have been maliciously procured, together with an order of the court thereon, establishing the same as an office paper in lieu of the lost original, and an order of nolle prosequi entered upon the established copy, the court did not err in permitting the defendant to show, by parol, that the established copy was prepared by counsel for the accused, that there was a material variance between it and the original indictment, and that, after being so established, it was nolle prosequied solely because of that variance. Civil Code (1910), § 5312.

(a) Such parol evidence was admissible, not for the purpose of varying or attacking tlie written record in the criminal case, but for whatever it might be worth to the jury trying the civil case in passing upon the real issues before them. The different rule, applicable to proceedings to enforce such established copies, with no change in the nature of the case or of the parties thereto, and with remedies available for the correction of such errors, is, for reasons which are palpable, not in point here. In Torrent v. Butler, 67 Ga. 32, and Branson v. State, 99 Ga. 194 (29 S. E. 404), the proceedings were of the latter character.

4. In a case of the character first above indicated, where it appears that the indictment was for the offense of larceny, that the original indictment designated one person as the owner of the property alleged to have been stolen, and that the established copy designated a different person as such owner, proof that, at the time the original indictment was drawn, the prosecutor and his witnesses told the draftsman to designate as such owner the person who was therein so designated, is not subject to the objection that it is hearsay evidence. Such evidence was admissible to explain the conduct and ascertain the motives of both the prosecutor and the draftsman of the indictment at the time it was being drawn for and considered by the grand jury. Civil Code (1910), § 5763.

5. The grounds of the motion for a new trial not dealt with above are without substantial merm. The complaint that one of the jurors was related to the' defendant within the prohibited degree, Deing submitted to the coru-t as trior, upon conflicting affidavits, and the finding of the '■ judge thereon being authorized by affidavits offered, his finding is conclusive here. The evidence as a whole presented questions for determination by the jury; and their finding in favor of the defendant, having the approval of .the trial judge, will not be disturbed by this court.

Decided March 6, 1924.

Action for malicious prosecution; from Long superior court— Judge Sheppard. October 13, 1923.

Travis & Travis, for plaintiff.

Edwin A.~ Cohen, Darsey & Mills, for defendant.

Judgment affirmed.

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


text:
    15181.
    Glennville Bank v. DeLoach.
    Decided March 6, 1924.
    Trover; from city court of Reidsville—-Judge Lauier. October 24, 1923.

      A. 8. Way, E. C. Collins, J. T. Grice, Daniel & Durrence, for plaintiff in error.

      P. M. Anderson, PL. PL. Elders, conrta.
   Bloodworth, J.

Under the evidence in this ease the court did not err for any reason alleged in any of the grounds of the motion for a new trial. Neither the charge that “any circumstance which would place a prudent man on his guard in purchasing a negotiable paper would be sufficient to constitute notice to a purchaser of such paper before it is due,” nor the verdict, is without evidence to support it. The motion for a new trial was properly overruled.

Judgment affirmed.

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


author: Broyles, O. J.

text:
    15182.
    Illinois Central Railroad Co. v. Banks.
   Broyles, O. J.

1. The assignments of error in the petition for certiorari upon the exclusion of certain parts of depositions offered by the petitioner are insufficient, in that they merely specify the rulings complained of and do not point out the alleged error or errors in the rulings. Nor does the petition specify, either literally or in substance, the evidence which was excluded. See, in this connection, Civil Code (1910), § 5183; Lamar Co. v. Lamar, 123 Ga. 667 (1), 668 (51 S. E. 584); Green v. Patterson, 25 Ga. App. 374, 376 (103 S. E. 437).

(a) Moreover, it appears from the petition for certiorari, and the answer of the trial judge thereto, that the portions of the depositions excluded were those parts wherein witnesses were stating the contents .of certain original records in their possession, the records not being introduced in evidence nor attached to the depositions, and the witnesses not reading from the records for the purpose of refreshing their recollection. Under these circumstances it was not error for the judge to rule that the original records were the best evidence, and that the witnesses could not state their contents. Civil Code (1910), §§ 5748, 5759; Griffin v. Wise, 115 Ga. 610, 612 (41 S. E. 1003); Johnson v. State, 125 Ga. 243 (2 a) (54 S. E. 184;) Henderson v. Maysville Guano Co., 15 Ga. App. 69 (4) (82 S. E. 588); Perry v. Camilla Cotton Oil &c. Co., 28 Ga. App. 512, 513 (111 S. E. 823).

Decided March 6, 1924.

Certiorari; from Fulton superior court—Judge Bell. September 26, 1923.

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

Watkins, Bussell & Asbill, contra.

2. “When goods moving in interstate commerce upon a through bill of lading are delivered in bad condition and the evidence shows that they were sound when received by the initial carrier, but does not affirmatively establish where the loss occurred, there is a common-law presumption, applicable under the Carmack amendment, against the delivering carrier, that the injury occurred on the delivering carrier’s line.” “There is no inconsistency between tins rule and the provision of the amendment making the initial carrier also liable.” Chicago & Northwestern Railway Co. v. Whitnack Produce Co., 258 U. S. 369. See Barron v. New York &c. R. Co., post, 757.

(a) CJnder the above decision of the Supreme Court of the United States and the facts of the instant case, the trial magistrate, sitting without the intervention of a jury, did not err, either in denying the motion for the grant of a nonsuit or in rendering the judgment complained of in favor of the plaintiff; and the judge of the superior court did not err in overruling the certiorari.

3. It not appearing to this court that the writ of error was prosecuted for the purpose of delay, the request of the defendant in error for an award of damages is denied.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Broyles, C. J.

text:
    15169.
    BARRON BROTHERS v. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY.
    1. In a suit for damages by a shipper against the delivering carrier for deterioration of goods moving in interstate commerce upon a through bill of lading, where the undisputed evidence for the plaintiff shows that they were sound when received by the initial carrier, but does not affirmatively establish where the injury occurred, there is a common-law presumption, applicable under the Carmack amendment, that the loss occurred on the delivering carrier’s line; and, where no evidence tending to rebut this presumption is introduced, a verdict for the plaintiff is demanded.

      2. An “attachment ease” is subject to the rules of the municipal court of Atlanta regarding “eases of default.”
    3. The court erred in sustaining the certiorari and granting a new trial.
    Decided March 6, 1924.
    Certiorari; from Fulton superior court—Judge Humphries. November 2, 1923.
    Application for certiorari was denied by the Supreme Court.
    On March 7, 1923, Barron Brothers sued out an attachment in the municipal court of Atlanta against the New York, New Haven & Hartford Railroad Company, a non-resident corporation. A declaration in attachment was filed on March 12, 1923. The defendant in attachment failed to file an answer. The clerk of the municipal court notified plaintiffs in attachment that the ease would be tried on April 17,. 1923, and on that date the plaintiffs appeared for trial. No appearance was made for the defendant, the case was treated as being in default, and the trial judge, sitting as court and jury, after hearing evidence from the plaintiffs, rendered a verdict and judgment in their behalf, to be made out of the property levied on. Thereafter, on May 15, 1923, the defendant made its first appearance in the case by suing out a'certiorari. The answer of the trial judge was not traversed except in so far as the 4th paragraph thereof stated that the rules of the municipal court were followed in disposing of the case. In-order to avoid the necessity of trying the issue formed by this traverse, counsel for both sides agreed to, and filed in court, a written statement outlining the practice rules of the municipal court. The judge of the superior court sustained the certiorari and granted a new trial, and to this judgment the plaintiffs excepted.

      Wallcins, Bussell & Asbill, for plaintiffs.

      Dorsey, Brewsler, Howell & Hey man, for defendant.
   Broyles, C. J.

(After stating the foregoing facts.) The answer of the trial judge sets forth the following evidence: “ On July 22, 1920, plaintiffs delivered to the Macon and Birmingham Railway Co., at Thomaston, Ga., 456 crates of peaches in good order, which were loaded in car FGE 24063 and consigned to the Georgia Fruit Exchange at Potomac Yards, Ya. Upon arrival of the car at Potomac Yards the same was diverted to H. B. Fisk & Co., Providence, R. I., and said car was delivered to the defendant in time for the peaches to have arrived in Providence July 28, 1920. The usual running time for delivery from Potomac Yards to Providence was such that they should have been delivered on July 28, 1920, if they had not been delayed. On arrival and inspection on July 30 many of the peaches were spoiled and decayed, and the delay was the cause of the spoiled and decayed condition. Had the peaches arrived in good condition their market value at Providence would have been $4 per crate and would have netted plaintiff $1,262.87, but, due to the decayed condition, they netted plaintiff $666.32, resulting in a damage of $596.55. The plaintiff’s witness also testified that he had been engaged in handling peaches for several years and was familiar with the thing which caused decay in transit, and was familiar with the usual running time between Potomac Yards and Providence, E. I. He also testified that a claim for loss and damages was filed with the Macon and Birmingham Eailway Co., the initial carrier, on August 30, 1920, and that an amended claim was filed March 3, 1921, and that the claim had been declined in full. The witness also identified a copy of the amended claim filed March 3, 1921, copies of which bill of lading and amended claim are hereto attached and marked Exhibits A and B of this answer.” This part of the answer was not traversed, and it is well settled that “in a certiorari case the answer of the trial judge is the only source from which knowledge of the facts of the case and the rulings made therein can be derived.” Gilmore v. Georgian Co., 17 Ga. App. 759 (88 S. E. 416).

The above-stated facts bring the instant case squarely within and under the ruling of the Supreme Court of the United States in the case of Chicago & Northwestern Railway Co. v. Whitnack Produce Co., 258 U. S. 369, where it was held: “1. When goods moving in interstate commerce upon a through bill of lading are delivered in bad condition and the evidence shows that they were sound when received 'by the initial carrier but does not affirmatively establish where the loss occurred, there is a common-law presumption, applicable under the Carmack Amendment,- against the delivering carrier, that the injury occurred on the delivering carrier’s line. 2. There is no inconsistency between this rule and the provision of the amendment making the initial carrier also liable.” See also Illinois Central R. Co. v. Banks, 31 Ga. App. 756 (502 S. E. 756).

It follows that since the evidence introduced upon the trial demanded a verdict and judgment in favor of the plaintiffs, the only other question for determination is whether or not the trial judge erred in treating the case as being in default. The practice in the municipal court of Atlanta as to default cases is set out in the agreement of counsel as follows: “Rule No. 8 of the ‘Rules for the Municipal Court’ is as follows: ‘Rule No. 8. Default judgments and verdicts where proof is necessary may be taken on the second day Of the term to which said case is made returnable, or thereafter, at such time as will not interfere with the contested litigation of said court.’ For his own convenience, the clerk of the court separates the papers in all ‘default’ cases, with the exception of those. based upon a sworn open account, from the general file and places them into a file known as the ‘default file.’ The plaintiff may at any time secure these papers, present them to the court with the necessary evidence, and secure his judgment. ‘Default’ cases are not placed upon the trial calendar of the Municipal Court. In order to prevent an accumulation of ‘default’ cases, and for the purpose of serving notice upon the piaintiff that the case is ‘in default’ and ready for judgment, it is the practice of the clerk of the court, at such time as he deems fit, to send a written notice to counsel for the plaintiff, to the effect that the ease will be placed upon the ‘trial calendar’ to be called by the Chief Judge of the court at 10 o’clock on a named day, and that unless disposed of by the plaintiff the same will be dismissed for want of prosecution. There is no definite or stipulated time for the calling of such ‘default’ cases, and no notice is given to the bar generally, either by publication, the formation of a calendar on file in the clerk’s office, or otherwise, that ‘default’ cases will be called at a specified time. The ‘default’ cases, are not placed upon any trial calendar, but the court papers in these cases are handed to the Judge, who calls the names of the cases in open court at 10 o’clock on the day named. If there is no answer the case is dismissed for want of prosecution. If the plaintiff is present and ready with evidence to support his ease, the matter is tried by the Chief Judge or is sent to one of the other trial judges of the court for disposition. The present case has never been on the trial calendar of the municipal court of Atlanta. It was not on the trial docket for Tuesday, April 17, 1923, and was not called as a regular trial case. As no answer was filed to the declaration in attachment in this case, and as no appearance was made, the case was treated by the clerk of the court as a ‘default’ case. The papers were placed in the default file.”

Section 46 of the act establishing the municipal court of Atlanta (Ga. L. 1913, p. 145) provides: “In all cases of default, the Chief Judge of said court, or any other Judge acting therefor, may enter judgment without any call of the docket on or after the Monday on which the action in default is returnable.” In construing this section the Court of Appeals in the case of Bacon v. Douglas, 23 Ga. App. 262, 264 (97 S. E. 862), said: “The validity of this act is not in question, and under it no entry of default or call of the docket is required, but the provision is that ‘in all cases of default’ the judge ‘may enter judgment without any call of the docket on or after the Monday on which the action in default is returnable.’ Do the words, ‘in all cases,’ authorize the judge to thus ‘enter judgment’ where the service, though legal, is not personal? We concur in the opinion held by the judge who entered the judgment, and by the superior-court judge, that they do. While the act creating the municipal court establishes the practice of that court to be the same as that which obtains in justice’s courts, except as may herein he otherwise provided, here it seems that there is a specific exception to the rules of such uniform practice and procedure. In justice’s courts it is only in some cases that' such a default judgment without proof may be entered; while in this municipal court such power is, under the terms of the act, vested in it in all cases.” The provisions of section 46, supra, referring to “all eases of default” is obviously broad enough to include an attachment case in which no answer has been filed at the appearance term; and in the instant case the practice pertaining to default eases'in the municipal court of Atlanta was strictly followed.

It is. true that the defendant was never notified of the trial. However, it would have received notice if it had filed an answer. The attachment was ample notice to the defendant that a defense should be made, if any existed, and after the levy the defendant had a reasonable time in which to file an answer. See, in this connection, Pennoyer v. Neff, 95 U. S. 714 (24 L. ed. 565). In the instant case no general judgment in personam was rendered, but merely a judgment in rem. The failure to place the case upon the tentative calendar published in the Eulton Daily Report is of no legal import. See Watts v. Jackson, 22 Ga. App. 31 (95 S. E. 324).

It is our opinion that the case was tried in accordance with the rules of the municipal court, and that the evidence demanded the verdict and judgment in favor of the plaintiffs. The judge of the superior court, therefore, erred in sustaining the certiorari and granting a new trial.

Judgment reversed.

Luke and Blooclworih, JJ., concur.


text:
    15183.
    LONDON GUARANTEE & ACCIDENT CO. v. SHOCKLEY.
    1. Upon a review of an award made by the industrial commission under the provisions of the Georgia workmen’s compensation act, the commission’s findings of fact are, in the absence of fraud, conclusive, provided there is any evidence to support the award. Ga. L. 1920, p. 199. With respect to the sufficiency of the evidence to support it, such an award stands in this court upon the same footing as the verdict of a jury approved by the trial judge in other eases.
    2. “In all claims for compensation for hernia resulting from injury by accident arising out of and in the course of the employee’s employment, it must be definitely proved to the satisfaction of the industrial commission . . that the hernia did not exist prior to the accident for which compensation is claimed.” Ga. L. 1920, p. 170. Yet where, as in this case, the claim is for a complete strangulated hernia, proof merely that, prior to the accident from which the complete hernia arose, the claimant showed a possible sign of a partial hernia a few inches from the place of the complete hernia, but not attended by pain or reduced capacity for work, does not even authorize, much less demand, a finding that the hernia alleged to have resulted from the accident in question really existed.
    Decided March 6, 1924.
    Appeal; from Eulton superior court—Judge Humphries. October 24, 1923.

      Bryan & Middlebrooks, for plaintiff in error.

      Hendrix & Buchanan, contra.
   Luke, J.

The evidence sufficiently showed that the employee suffered a complete strangulated hernia under such circumstances as to entitle him to compensation in accordance with the terms of the workmen's compensation act; that both the employer and the insurer refused to provide any medical or surgical treatment, or to allow any compensation for lost capacity for work; that the employee's medical and hospital expenses were much in excess of $100; and that he was totally incapacitated for work for a period of four weeks. The commissioner who heard the case awarded compensation for three weeks at $15 per week and $100 for medical expenses, leaving the amount of compensation for partial incapacity, if any, for determination upon a subsequent hearing. From that award the insurer appealed to the full commission, and the award was affirmed. The insurer then appealed to the superior court, and the award was again affirmed. The insurer thereupon sued out a writ of error to this court. The sole ground upon which the claim was contested is that dealt with above in the headnotes.

Judgment affirmed.

Broyles, G. J., and Bloodworih, J., concur.


author: Bkoyles, C. J.

text:
    15186.
    Sammons v. Read Incorporated.
    Decided March 6, 1924.
    Complaint; from city court of Oglethorpe—Judge Greer. October 11, 1933.
    Application for certiorari was denied by the Supreme Court.

      Gilbert G. Robinson, for plaintiff in error.

      Jule Felton, Jule W. Felton, contra.
   Bkoyles, C. J.

1. A plea of recoupment is confined to the contract sued upon by the plaintiff, including any cross-obligation or independent covenant arising out of that contract. A plea of set-off is not so confined, but is á defense which goes not to the justice of the plaintiff’s demand, but which sets up a demand against the plaintiff, and which includes all mutual debts and liabilities. Civil Code (1910), § 4351; Arnold v. Carter, 125 Ga. 319 (54 S. E. 177); Jester v. Bainbridge State Bank, 4 Ga. App. 469, 472 (61 S. E. 926); McNatt v. Citizens & Southern Bank, 20 Ga. App. 755 (3) (93 S. E. 271).

(a) Under this ruling and the pleadings in this case, the proffered amendment to the answer was a plea of set-off, and not of recoupment.

2. A city court has no jurisdiction to entertain a plea of set-off which attempts to set off damages arising ex delicto against an action on a contract. Such a plea can be entertained only in a court of equity. Hitch v. Snook & Austin Co., 114 Ga. 921 (41 S. E. 74). Under this ruling the trial judge did not err in disallowing the proffered amendment to the defendant’s plea.

3. Under the facts of the ease and the notes of the trial judge there is no merit in the first four grounds (numbered 4, 5, 6, and 7) of the amendment to the motion for a new trial; and the remaining ground (numbered 8) is expressly abandoned in the brief of counsel for the plaintiff in error.

4. The verdict was authorized by the evidence, and the overruling of the motion for a new trial was not error.

Judgment affirmed.

Luke and Bloodioorth, JJ., concur.


text:
    15187.
    LAWSON v. THE STATE.
    Tlie evidence authorized a conviction under an indictment charging the defendant with having located and permitted the locating of an apparatus for the making of intoxicating liquor on his premises.
    Decided March 6, 1924.
    Indictment for misdemeanor; from Wilcox superior court-judge Crum. November 5, 1923.
    It was contended that the evidence failed to show that the defendant had on his premises a 'complete still or apparatus capable of producing intoxicating liquor, and that for this reason the verdict was unauthorized.

      Max E. Land, for plaintiff in error.

      J. B. Wall, solicitor-general, J esse Grantham, contra.
   Luke, J.

Lawson was convicted of violating the prohibition statute. The conviction was authorized by the evidence. In fact, when the officers were searching his premises and just before locating several gallons of beer and part of an apparatus for the manufacture of whisky, the defendant, according to the testimony of one witness said to him, “I have got a little outfit here, but I haven’t used it in God knows when.” The grounds of the motion for a new trial which have the approval of the trial judge are without substantial merit. Eor no reason pointed out did the court err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    15188.
    Darnell v. Shirley.
   Luke, J.

1. In an action to recover damages for an alleged malicious criminal prosecution, the piaintiil carries the burden of proving not only that such prosecution was maliciously carried on, but also that it was carried on without any probable cause. Civil Code (1910), § 4439; Joiner v. Ocean Steamship Co., 86 Ga. 238 (12 S. E. 361); Thornton v. Story, 24 Ga. App. 503 (2) (101 S. E. 309); O’Berry v. Davis, ante, 755.

2. The “malice” contemplated by law in an action for malicious prosecution is the same as in an action for malicious arrest, and “may consist in personal spite or in a general disregard of the right consideration of mankind, directed by chance against the individual.” Civil Code (1910), § 4451; Waters v. Winn, 142 Ga. 138 (1) (82 S. E. 537, Ann. Cas. 1915D, 1248).

3. While want of probable cause is sometimes a circumstance from which malice may be inferred, yet this is so only in cases where there is a total want of such cause. Civil Code (1910), § 4444. And where there is no evidence of malice other than such inference as may be drawn from proof of the want of probable cause, and that proof shows some cireumstances pointing to the guilt of the accused, although insufficient to exclude every other reasonable hypothesis, the essential ingredient of malice is not so established as to entitle the plaintiff in an action for malicious prosecution to recover.

4. Want of probable cause is the gravamen of an action for malicious prosecution; and there can be no recovery by the plaintiff where there was any probable cause for the prosecution, even though it may appear that the prosecutor was actuated by improper motives. Seamans v. Hope, 105 Ga. 159 (31 S. E. 156).

5. That want of probable eairse which constitutes an essential ingredient of an action for malicious prosecution exists only “when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused.” Civil Code (1910), § 4440.

6. In determining whether or not there was a total want of probable cause for a criminal prosecution alleged to have been maliciously carried on, the question is not whether the accused was actually guilty of the offense with which he was so charged, but the real question is whether the prosecutor had reasonable cause so to believe,—that is, whether the circumstances at the time of the prosecution were such as to create in the mind of the prosecutor a reasonable belief that there was probable cause for the prosecution. Hartshorne v. Smith, 104 Ga. 239 (30 S. E. 666).

7. The action of a magistrate in binding over the accused on a criminal warrant is prima facie, but not conclusive, evidence of probable cause for such prosecution. Lindsay v. West, 6 Ga. App. 284 (2) (64 S. E. 1005).

{a) The return of an indictment by the grand jury investigating the alleged offense is likewise prima facie, but not conclusive, evidence of the existence of such probable cause.

8. Proof that the accused was discharged and acquitted of the offense alleged in the bill of indictment, without a trial- and upon a second demand therefor, because of the inability of the State and the prosecutor to obtain the attendance of some of the witnesses relied upon to establish the charge, serves only to show that the prosecution terminated. Even a verdict of not guilty upon tiie indictment would not tend to show the want of probable cause for the prosecution, because, in a trial of the indictment, such a verdict would be the only legal result in the event of a reasonable doubt as to the guilt of the accused, or of the existence of some reasonable hypothesis other than the guilt of the accused, although probable .cause to suspect his guilt might be abundant.

9. Where, as in this case, there is no evidence whatever of any fraudulent conduct or improper motive on the part of the prosecutor, or of any other person dealing with the criminal prosecution, and it appears from the uncontradicted evidence that the accused was bound over by the magistrates who presided at the preliminary hearing on the warrant, that lie was subsequently indicted, by the grand jury investigating it, and that there were some slight circumstances pointing to his guilt, though not enough to exclude every other reasonable hypothesis, a finding that the prosecution was malicious is without any evidence to support it. Harishome v. Smith, supra. In such a case the direction of a verdict for the defendant would be in order. Stuckey v. Savannah, F. & W. Ry. Co., 102 Ga. 782 (29 S. E. 920).

Decided March 6, 1924.

Action for damages for malicious prosecution; from Gordon superior court—Judge Tarver. October 13, 1923.

Wood & Vandiviere, for plaintiff in error.

J. 11. Paschall, Maddox, McCamy & McFarland, contra.

10. Where, as in this ease, the criminal prosecution was for the offense of burglary, and the evidence to establish the corpus delicti ivas convincing, and there were only circumstances to connect any particular person with the offense, and the circumstances to connect the accused wilh it tended to show that he and another person were together near the burglarized storehouse after midnight on the night of the burglary; that both men spent a part of the night in woods near by in company with two women of questionable character; that the stolen goods consisted, in part, of women’s wearing apparel, some of "which was shortly thereafter found hidden in the woods near the point where the party had camped; that there was some indication, of the tracks of two persons leading from the road which the accused admitted traveling by automobile towards (but not to) the point where the stolen goods were .found; that the burglarized store showed signs of spilled kerosene, and that the accused was using kerosene instead of gasoline to operate his automobile on the night of the burglary, the evidence demands a finding that there was probable cause for the prosecution, notwithstanding tliar, evidence subsequently discovered might completely exonerate the accused.

11. In no view of the case was the verdict for damages in the sum of $100 authorized; and for this reason the judgment of the lower court, overruling the defendant’s motion for a new trial, was erroneous.

Judgment reversed.

Bloodworlh, J., concurs. Broyles, G. J., dissents.


text:
    15189.
    Mann v. The State.
    Decided March 6, 1924.
    Indictment for manufacture of liquor; from Lamar superior court—Judge Persons. November 9, 1923.

      A. M. Zellner, for plaintiff in error.

      T. J. Brown, solicitor-general, contra.
   Bloodworth, J.

There ivas some evidence to authorize the verdict, which has the approval of the trial judge; and, no error of law appearing, this court will not interfere.

Judgment affirmed.

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