text:
    1001.
    JESTER et al. v. BAINBRIDGE STATE BANK.
    1. (a) The entry of a judgment by the court, without the verdict of a jury, in an action brought to recover on an unconditional contract in writing (even though the defendant has the right to demand, and has demanded, trial by jury), is not in violation of the constitutional right of trial by jury, where the answer of the defendant raises no issuable defense, and where those facts, if there be any, necessary to be proved by the plaintiff are admitted by the defendant’s answer. Since the passage of the Neel act of 1893, even though a party in a civil case has the right to demand trial by jury, still, in the absence of a plea which presents some meritorious, issuable defense, — there being no right of the defendant to be preserved,- there is no right to trial by jury upon facts legally admitted to be true.
    (b) As to an action brought in proper orderly paragraphs upon an unconditional contract in writing, a plea of general issue amounts to no defense.
    2. (a) Damages arising upon the breach of an alleged agreement to extend or defer the maturity of a note can not be pleaded as recoupment to an action brought to recover the principal and interest due upon such promissory note. The contract to extend (though referring to the note) is independent of the original promise to pay. Recoupment can be pleaded only where the plaintiff is in good conscience liable to the defendant under the same contract.

    (b) A plea which avers that the plaintiff contracted to extend or defer the maturity of a promissory note is, in effect, a plea that the suit is prematurely brought; it is therefore a plea in abatement, and must be considered’ subject to the rules of strict construction applicable generally to dilatory pleas.
    (c) A plea in abatement upon the ground that a plaintiff’s suit is prematurely brought, and which is dependent upon an indivisible, entire contract providing for the extension of a promissory note (which contract contains several different stipulations), may, upon demurrer, be properly stricken, where, from the answer of the defendant himself, it appears that the conditions precedent devolving upon him were not wholly fulfilled.
    3. Where a demand for payment of the whole of an existing indebtedness is relied upon as a waiver of the tender of a smaller amount agreed to be accepted by a corporation upon such debt or demand, it must appear that the demand was made upon an agent of the corporation authorized to collect and empowered to demand payment, and the literal contents of the alleged demand must be sufficiently set out to enable the court to determine the exact nature and effect of the demand relied upon.
    4. Losses, which one may have sustained in complying with obligations devolving upon him in carrying out his undertaking under a contract, are not recoverable as damages, even though the contract may have been breached by the opposite party to the contract. Damages to either party to a. contract, to be recoverable, must be the result of some act on the part of the other party, and the measure of such damages is the profit, if legally ascertainable, which would have accrued, had the contract been complied with.

      5. All proper unequivocal allegations in a petition which are not denied in the defendant’s answer are held to be admitted, and proof of such allegations need not be submitted.
    Complaint, from city court of Bainbridge — Judge Harrell. January 6, 1908.
    Submitted March 13,
    Decided July 8, 1908.

      G. G. Bower, R. G. Hartsfield, for plaintiffs in error.

      Russell & Hawes, contra.
   Russell, J.

To a suit brought by the Bainbridge State Bank on a promissory note for $2,000, with interest and attorney’s fees thereon, the defendants filed an answer, attempting to set up, by way of recoupment, a claim for $5,000 damages, which they alleged they had sustained by breach of a contract which the plaintiff had made with them to extend the note in question one year. In their answer the defendants averred, that on May 17, 1907, two months before the note in question matured, they made a contract with the duly authorized cashier of the plaintiff corporation (who had full power and authority, by law and by virtue of his office, to make the agreement), by which the bank agreed to extend the maturity of said note from July 17, 1907, to July 17, 1908, in consideration of the sum of $160 to be paid on said note on July 17, 1907, and the further payment of two other notes, for $200-each, more particularly described in the answer. By an amendment the defendants pleaded, as an additional stipulation of the contract and as a consideration moving the bank to the contract to extend the maturity of said note, an agreement that the defendants would not move their deposit account and business, the profits on exchange and from said deposit account being valuable to the bank. The defendants alleged, that the profits on said account amounted to $50, or other large sum, and insisted that as the bank secured this by the agreement to extend the note, the contract was thereby partially performed by them and accepted by the bank, and that for this reason it would be a fraud upon the defendants to permit the bank to avoid the contract. The defendants pleaded, that, relying upon the contract of extension, they expended their ready money in improvements on their plant and thereafter sacrificed enough of their manufactured products to raise the sum of $560 to comply, and were ready to comply, with their part of the contract; but that on July 12, 1907, “they received notice from said plaintiff corporation stating that said corporation would insist on the payment of said note for $2,000 on July 17, 1907, in violation of said express contract extending the maturity of said nóte, and would repudiate said contract thus solemnly entered into.” In response to a special demurrer, the defendants alleged, that the plaintiff refused to accept the $160 and the payment of the two notes for $200 each, and they continued to tender $560 as fulfilment of their part of the contract. To the original answer of the defendants the plaintiff interposed both general and special demurrers. In response to the latter the defendants amended. The amendment was met with further special demurrers, and another amendment thereupon allowed; and this again was demurred to. Upon review of the record, we find that some of the defects pointed out by special demurrer were remedied, but the information demanded by certain others was not supplied. The trial judge finally sustained the demurrers and struck the defendants’ plea as amended, and entered judgment for principal, interest, and attorney’s fees. The bill of exceptions challenges the judgment sustaining the demurrers and striking the answer with the two amendments thereto, and also assigns error upon the judgment rendered in favor of the plaintiff.

The first insistence of the plaintiffs in error is, that they were entitled, upon their demand, to a jury trial, and that this right was denied by the action of the court. Even if the assignment of error be sufficient to raise the point, it appears to be without merit. The act establishing the city court of Bainbridge (Acts of 1900, p. 108, sec. 16) provides for a jury trial in any civil case in which either party may demand it, “in all cases in which said parties may be entitled to a trial by jury under the constitution and laws of this State” (see also section 27 of the same act); and thereby, under article 6, section 18, paragraph 1, of the constitution (Civil Code, §5876), the defendants, having demanded a jury trial, were entitled to it upon the same terms as if the case were being tried in a superior court; but they were not entitled to trial by jury except upon a plea presenting issuable facts for the determination of a jury. If the .plea, as allowed and filed, analyzed either by the special or general demurrers, presented no meritorious defense to the plaintiff’s action, there would be no right which could be preserved by the jury trial, and, therefore, ho right to such trial. It must be remembered that since the decision in Parmelee v. Williams, 72 Ga. 47 (upon which plaintiffs in error rely), was rendered, our entire system of pleading has been simjffified by the passage of the Neel act, and that as to an unconditional contract in writing, upon which suit is brought in proper orderly paragraphs, a plea of general issue amounts to no defense at all.

The real question in the case, then, is whether the defendants had a good plea, or whether the answer filed by them was totally insufficient to raise any issue for a jury. If the defendants’ plea raised any issue of fact, they had the constitutional right of trial by jury. If the plea as amended, properly construed, failed to directly and distinctly challenge a single material allegation of the plaintiff’s petition, or to assert an affirmative defense, the case was legally in default, and the judge’s order sustaining the demurrer was but a formal declaration and announcement of that fact. The nature and character of the defendants’ plea is first to be considered. Taking the plea as a whole and judging it with all liberality to the defendants, it can not be said to be a plea of recoupment; because the defendants’ damages, if any, did not arise from the breach of the contract upon which the action was brought, — the promissory note, — but, as alleged by the defendants, their damages resulted from the breach of an independent, subsequent contract to extend the time of payment or to postpone the maturity of that note. “Recoupment is a right of the defendant to have a deduction from the amount of plaintiff’s damages, for the reason that the plaintiff has not complied with the cross-obligations or independent covenants arising under the same contract.” Civil Code, §3756. “Recoupment lies for overpayments by defendant, or payments by fraud, accident or mistake.” Civil Code, §3758. It may be pleaded in all actions ex contractu, where from any reason the plaintiff under the same contract is in good conscience liable to defendant.” Civil Code, §3759. While a set-off includes all mutual debts and liabilities, recoupment is confined to the contract on which the plaintiff sues. Civil Code, §3757.

The plaintiff in this case brought suit on a promissory note. The defendants did not claim any overpayments, or payments by fraud, accident, or mistake, or any reason, arising under the same contract upon which suit was brought, why they had been damaged, but they alleged an independent contract, apart from and subsequent to the note, although relating to it. If the bank had brought suit upon the' alleged contract, the defendants might have set up, by way of recoupment, their damages arising from the breach of this contract. In its last analysis the plea of the defendants, with all its amendments, if it be construed to be a good plea, is, in effect, nothing more nor less than a plea that the note was sued before maturity. It must, therefore, be classified as a plea in abatement, and, being a dilatory plea, is subject to the strictest rules of construction. Taking all the statements of the pleader as true, the duly authorized agent of the bank agreed, upon the payment of $400, the amount of two smaller notes, and $160, the interest for a year in advance on the $2,000 note, and the continuation of the deposit account and exchange business of the defendants, to extend this $2,000 note for a year or until July 17, 1908. According to the plea, the contract can not rationally be construed as divisible. It was an entire contract. The two small notes were to be paid on July 17, 1907, the interest on the note to be renewed was also to be paid, and the bank was to get the benefit of the defendants’ deposits, all as consideration for the extension. Failure on the part of the defendants to comply with any one of those stipulations was to destroy the whole contract.

Furthermore, while it is alleged that the bank received the consideration growing out of the deposits, and that the defendants made considerable sacrifices to raise the $560 with which to pay their smaller notes and the $160 interest, according to the agreement, it is not alleged that they ever tendered the amount of cash to be paid by them, at the proper time and to a designated, authorized agent of the bank. The plaintiff hád the right to raise these points by special demurrer, as it did; and as the required information was not given, the court properly and necessarily was compelled to conclude that no such tender as was required by the' alleged contract was made. It is obvious that the defendants were imwilling to commit themselves to a definite statement upon this line under oath, for they attempted, in one of their amendments, to plead generally that the necessity for a tender was obviated by the refusal of the bank to accept the $560 in cash. The statement quoted above, that the defendants received notice stating that the 'plaintiff corporation would insist upon the payment of the note at maturity, and which was relied upon by the defendants- to set up the waiver óf a formal tender, was twice specially demurred to by the plaintiff; and, in the absence of any proper response to these demurrers, by amendment, the trial court, in our judgment, very properly concluded that the allegation of the answer was insufficient to excuse the defendants from their duty of tendering payment of the $560 on July 17, 1907, in cash, to the cashier of the bank, according to the terms of the contract upon which the defendants themselves relied. In the absence of the explicit statement of the exact contents of the notice received (stripped of the mere conclusions of the pleader), and the plea being accompanied by no statement showing whether the notice was oral or in writing, or showing its literal contents, or by what officer of the bank it was given, the court could not tell whether the notice was merely the customary reminder, calling attention to what date the defendants’ note matured, or whether it was the urgent demand for payment which the defendants’ conclusions adjudged it to be,— whether it was an oral demand from one who was not authorized to collect for the bank, or a written demand from one whose duty authorized him to insist upon payment. Indeed, even if the properly authorized officer of the bank had demanded payment in writing, the defendants should have replied to this demand by insisting upon the performance of the contract;, and they would not have been relieved from their duty to tender payment, until it was unequivocally made to appear that the plaintiff, with its attention directed to the contract, had said or done something which demonstrated that an actual tender would'be nugatory.

In no event could the defendants’ allegation that they sacrificed some of their manufactured products at a price below cost, in order to raise funds with which to comply with their obligation, be considered as an element of damage or be used as a measure of the damage, if any, sustained by them. Whatever the defendants may have lost by the sacrifice of their property, as a means of complying with their undertaking, towards a contract which they supposed to be to their advantage, was the result of their own act in the carrying out of.their part of the contract. Damages to one party to a contract must always be the result of some act on the part' of the other party thereto. For instance, if I contract with A. B. to purchase from him, for a certain price, which I deem greatly to my advantage, a certain article, and, upon my offering to comply with the contract, A. B. refuses'to comply, and if, in order to raise thet purchase price (expecting to profit by 'my purchase), I have-sacrificed other property, the measure of my damages would not'be what I have 1-ost in the sale of my property below its value. This loss I would have sustained had the contract been complied with. It accrued from my compliance with my own contract. The real measure of my damages would be the profit, if any, which I really and certainly could have made had the contract been complied with instead of being breached by A. B.

We think, therefore, that in the absence of a sufficiently specific amendment to meet the special demurrers directed to the points to which we have called attention, as well as others which we have deemed unnecessary to note, the court was justified in sustaining the special demurrers, and in thereupon striking the plea upon the general demurrer.

5. The plea having been stricken, it was not error to enter judgment by default for the principal and interest and for attorney’s fees. The point especially urged in the brief of counsel for the plaintiffs in error is that the court erred in entering judgment for attorney’s fees, in the absence of any evidence upon that subject; and our decision in Webb v. Simmons, 3 Ga. App. 639 (3), (60 S. E. 334), is cited as authority for this contention. In the Webb case the allegation as to the service of notice of claim for attorney’s fees and liability therefor was denied by the defendant’s answer, and consequently, there being an issue upon this point, a judgment for attorney’s fees could not be rendered in the absence of evidence. In the present case the allegations of the petition as to the attorney’s fees are not denied in the answer or in either of the amendments thereto, and, under the well-settled rule, the averments of the petition upon this subject must be taken as admitted to be true. It is true that the note does not specify the amount of attorney’s fees, nor does it say “reasonable attorney’s fees,” as was the case in Brooks v. Boyd, 1 Ga. App. 66 (6), (60 S. E. 334), but it includes a promise to pay all attorney’s fees if it be collected by law or through an attorney; and the allegations of the petition, that the plaintiff has served each of the defendants with the notice required by law, etc. (attaching copy thereof), and that the plaintiff “has incurred the expense of attorney’s fees amounting to ten per cent, of the principal and interest due on said note,” not being-denied, are tacitly admitted to be true. There being no issue upon this point, the judgment of the court for attorney’s fees was as much authorized as the judgment for the principal and interest.

Judgment affirmed.


source: Caselaw Access Project

author: Russell, J.

license: Public Domain

text:
    1000.
    JESTER et al. v. BAINBRIDGE STATE BANK.
    The judgment in this ease is controlled by the decision in Jeater v. Bainbridge State Bank, ante, 469. Even if the plaintiff broke its agreement, the defendants were not thereby relieved from paying their notes. The exceptions to the judgment of the lower court are so entirely without merit that damages are awarded for delay.
    Complaint, from city court of Bainbridge — Judge Harrell. January 6, 1908.
    Submitted March 13,
    Decided July 8, 1908.
    G. G. Bower, R. G. Hartsfield, for plaintiffs in error.

      Russell & Hawes, contra.
   Russell, J.

The facts in this case are so intimately related to those in Jester v. Bainbridge State Bank, ante, that they need not be recounted here. This suit was brought to recover $400 on the two notes mentioned in the preceding case. According to the undisputed statement of the answer, but one inference could have been drawn. These notes were to have been paid on July 17, 1907, if no agreement had been made between the Bainbridge State Bank and the defendants. They Avere likewise to have been paid upon that date, by the express terms of the agreement relied upon by the defendants. Even if the agreement relied upon had been broken, as averred by the defendants, that Avould not relieve the defendants from their obligation to comply Avith their part of the contract. For the reasons stated in Jester v. Bainbridge State Bank, supra, the answer of the defendants, which is practically the same in this case as in that, can only be construed as a plea that the notes were sued on before maturity; which is totally without merit in the present case, because, from the statements of the defendants in their answer, the notes here involved Avere to be paid as a condition precedent to an extension on the other note. The court, therefore, did not err in sustaining the demurrers, striking the defendant’s plea, and entering judgment for the plaintiff.

The writ of error is so wholly without merit that we can not decline the motion of defendant in error to award the damages allowed by law in cases of frivolous appeals.

Judgment affirmed, with, damages.


author: Hill, C. J.

text:
    1052.
    MACON RAILWAY AND LIGHT COMPANY v. CARGER, administratrix.
    1. There was no abuse of discretion in overruling the motion for a continuance.
    2. The true interpretation of section 2322 of the Civil Code, where applicable to injuries caused by mutual fault or negligence, is that the plaintiff can only recover when his contributory fault or negligence is less than that of the defendant. The language of the charge excepted to conveys the impression that the plaintiff’s ‘negligence, where the defendant is also negligent, is material only on the question of the diminution of damages, and not on the right to recover at all, and for this reason was erroneous. The error, however, was harmless, as there was no evidence of any mutual fault, the issue being only as to whether the negligence of the plaintiff or the negligence of the defendant caused the injuries, and the jury was fully and correctly instructed on this issue and settled the conflict in the evidence.
    Action for damages, from city court of Macon — Judge Hodges. February 11, 1908.
    Argued April 22,
    Decided July 8, 1908.

      Roland Ellis, for plaintiff in error.

      R. D. Feagin, J. H. Hall, Warren Roberts, contra.
   Hill, C. J.

This is a suit against the Macon Railway and Light Company for damages on account of personal injuries, alleged to have been caused by the negligence of a motorman of the street-car company in unnecessarily ringing the bell and not stopping the ear when he saw that the mules which the plaintiff was driving to a wagon loaded with wood were thereby frightened. The allegations of the petition, which were proved by the evidence in behalf of the plaintiff, were substantially as follows: The plaintiff was driving a wagon loaded with wood, and had just turned into the street on which the car was approaching, when he saw the car. On account of the narrowness of the street he could not safely pass the car without crossing the track in front of the car to the other side of the street, and he could not safely do this, on account of the rapid approach of the ear. His mules became frightened at the noise of the approaching ear and the ringing of the bell, and he waved his hand at the motorman to stop the car or to slow down so that his wagon could pass. The motorman saw that the mules were frightened, and, instead of stopping his ear, continued to ring his foot-bell and continued at the same rate of speed to approach the team. This frightened the mules, and they backed the wagon into a ditch and overturned it with the wood on the plaintiff; which caused the injuries complained of. The car was about 25 steps from the plaintiff when he gave the signal to stop, and the motorman then had the car under control and could have stopped it, but he ran the car beyond the wagon for about 50 steps before stopping. The plaintiff could have safely passed the car, if his signal had been obeyed and the car had stopped. The evidence, in behalf of the defendant showed, in brief, that the motorman did not ring the bell in approaching the team; that the mules were not frightened by the approach of the car; that the street on which the plaintiff was driving was wide enough for him to drive by the car, and that, by his own carelessness, he pulled his mules too far to the right and drove into the ditch on the side of the street; that the wagon was falling into the ditch and he jumped off the wagon in order to catch it, and attempted to hold it, but it was too heavy, and it forced him down on his knees and mashed him on the ground, and the wagon fell across his legs; that the car never struck his wagon, and that the mules were never frightened'. The jury found a verdict for the plaintiff, for $350, and the defendant’s motion fox a new trial was overruled.

When the case was called for trial, the defendant, through its counsel, made a motion for a continuance, on account of the absence of the motoTman of the car, who had been subpoenaed and had been in attendance on the court when the case was expected to be tried at the previous term. In support of this motion the attorney for the defendant stated, that he had talked with the absent witness and he expected to show by him that he did not ring the bell, and the mules were not frightened, and that the plaintiff by his own negligence pulled his team into the ditch and the wágon fell on him; that he, as attorney, had had another subpoena issued, for the absent witness, but, when the officer went to serve it, he was informed that the witness had moved from the county; that he did not know that the witness had moved from the county, and that the witness was not absent by his leave or consent; that if he had known of the witness’s removal from the county, he had plenty of opportunity to take- his testimony and would have done so; that the motion was not made for the purpose of delay, and that he would have the witness present at the next term of the court; that he had not before that day learned of the removal of the witness from the county; that he first learned of it when the sheriff, on that day, went to where the witness had previously lived, to serve him with the subpoena. The absent witness did not then work for the defendant company. There was no evidence to show that the defendant itself did not know of the change of residence of the witness in time to get his testimony, nor did counsel make any statement that the duty of procuring the witness had been entirely entrusted to him by the defendant. The court overruled the motion, and this judgment constitutes one of the grounds in the motion for a new trial.

The showing for a continuance was insufficient, in that it did not appear that the change of residence by the absent witness after he had been subpoenaed was not known to the defendant, before the trial, in time to have procured his testimony. The statement of the attorney for the defendant that he, as such attorney, did not know of this change of residence until the day of the trial was not sufficient, unless supplemented by proof either that the party also did not know of such change of residence, or that the relationship of the attorney to the corporation was such that he was the official charged with the duty of procuring the attendance of the witness. The court, therefore, did not abuse its discretion in overruling the motion for a continuance.

The following instruction of the court is assigned as error: “If you believe, from a consideration of the evidence, that both parties were at fault, and that the alleged injury was the result of the fault of both parties, and you further find, from the evidence, that the plaintiff could not, by the exercise of ordinary care, have avoided the injury occasioned by the defendant’s negligence, then, notwithstanding the plaintiff having been to some extent negligent, the plaintiff would be entitled to recover, but the amount of damages should be diminished by you in proportion to the amount of fault attributable to the plaintiff, from a consideration of the evidence adduced upon the trial.” It is contended that this was “an erroneous statement of the law, because it instructed the jury to' find in favor of the plaintiff even though the fault of the plaintiff was greater than the fault of the defendant.” We think this' charge, without further explanation, is subject to the criticism-made. The jury could have inferred, from the charge, that it made no difference as to the extent of the plaintiff’s contributory negligence, if it appeared that the defendant was also negligent. The court should have gone further and instructed the jury that the plaintiff could not recover at all, if he was guilty of contributory negligence, unless it appeared that the negligence of the defiéndan! preponderated in causing his injuries. Section 2322 of the Civil Code has been frequently construed by the Supreme Court, and it has been uniformly held that where there was mutual fault the plaintiff could not recover, unless the fault of the defendant, contributing to his injury, was greater than his own. In Macon & Western R. Co. v. Davis, 27 Ga. 113, it was held, that “In. suits against a railroad Compaq, if it appear that there was mutual fault, the party guilty of the greater wrong or negligence must be regarded as an original aggressor.” In Southern Ry. Co. v. Watson, 104 Ga. 243 (30 S. E. 818), the following charge on the subject of contributory negligence was held erroneous: “If both parties are at fault, the plaintiff, would be entitled to recover, but the jury would have the right to scale the damages.” “To illustrate: if the fault was about half and half, one party as much at fault as the other, . . you would have the right to give the plaintiff half damages.” In the case of Central R. Co. v. Newman, 94 Ga. 560 (21 S. E. 219), it was held that “where the injury complained of was the result of mutual negligence by the plaintiff’s servant and the defendant, there can be no recovery unless the servant was less at fault than the defendant.” In Macon & Western R. Co. v. Winn, 19 Ga. 445, Chief Justice Lumpkin, in discussing the principle now under consideration, says: “the law, in conformity with common sense, declares that if both parties are equally in the wrong, neither can or ought to maintain an action against the other.” See also Brunswick & Western R. Co. v. Wiggins, 113 Ga. 849 (39 S. E. 55), 61 L. R. A. 513); Willingham v. M. & B. Ry. Co., 113 Ga. 374 (38 S. E. 843).

It is clear, from these repeated rulings of the Supreme Court, construing §2322, supra, that there can be no recovery in a case of mutual negligence, unless the jury finds that the preponderance of the blame or fault causing the injury is attributable to the defendant. While the more reasonable interpretation of the excerpt from the charge now under criticism would seem to be that the court intended to instruct the jury that the plaintiff could not recover if his own fault preponderated in causing his injury, yet the language used by the learned judge might be construed to mean that the plaintiff could recover, whatever might have been his own negligence contributing to his injury, if they also found that the negligence of the defendant also contributed thereto. Of course, what we are saying is only applicable where the evidence shows that the plaintiff could not by the exercise of ordinary diligence have avoided the consequences of the defendant’s negligence. Under the facts of the present case, however, the charge objected to, though erroneous for the reasons stated, was harmless. There was no evidence showing any mutual or concurring fault contributing to the plaintiff’s injury. Under the testimony in his behalf the ease was one of negligence on the part of defendant’s, agent, unmixed with any negligence on the part of the plaintiff. The evidence for the defendant, on the other hand, indicated that the injury was caused entirely by the plaintiff’s own negligence, and that the defendant was entirely free- from blame. In other portions of the charge the court fully and accurately charged the issues presented by the evidence of both parties, and the excerpt objected to, although not adjusted to the facts, could not have hurt the defendant. There is no evidence whatever as to mutual fault or blame, but the evidence presents a conflict as to whose fault caused the plaintiff’s injury, and this conflict was settled by the verdict of the jury. Judgment affirmed.


author: Powell, J.

text:
    1083.
    Southern States Life Insurance Company et al. v. Statham.
    Complaint, from city court of Americus — Judge Crisp. February 29, 1908.
    Argued May 6,
    Decided July 8, 1908.
    Statham sued the Southern States Life Insurance Company, a corporation of Alabama, having an agent and a place of transacting business in Americus, Sumter county, Georgia, and the General Agency Company and R. K. Shaw, both of Fulton county, Georgia, to recover $1,881.34 principal, besides interest. The action was based on three written instruments: the first being a contract between the insurance company and Statham; the second, a contract between the agency company and Statham; the third, a contract between Shaw and Statham. The first sets forth that Statham is appointed an agent of the company, to solicit applications for insurance and to collect the first premium on policies; that for his services and all expenses he shall receive specified commissions on the premiums collected, and other specified commissions on renewals; and that it is understood and agreed by him that all said commissions shall be paid to him by the agency company, and that the insurance company is in no way liable for the payment thereof. This contract contains numerous other provisions and stipulations, which, need not be stated here. The second contract sets forth, that, in consideration of Statham having entered into the aforementioned contract with the insurance company (a copy of which is attached to and made a part of this agreement), the agency company hereby agrees that should Statham fail to earn commissions on business written under the contract with the insurance company, within the next twelve months, amounting to $3,250, the agency company will pay to him such sum of money as may be necessary to make good the difference between the amount of commissions so earned and the sum just named; this agreement to be void should he cease during that period to devote his entire time and attention to securing business for the insurance company. The third contract is like the second, except that it states the sum of $4,250 instead of $3,250, and that it limits the liability of Shaw to $1,000.
   Powell, J.

1. In considering, on demurrer, the petition in an action upon several written contracts, the court will look to the writings alone to determine their meaning and legal effect, where they are unambiguous, and will disregard conclusions of the pleader contrary to the true construction.

2. A necessary incident to the existence of the relationship of principal and surety is that the principal shall contract to assume the obligation as to which the suretyship arises.

3. If A contracts to perform services for B, but upon the distinct understanding that B shall not be liable to pay therefor, and that A shall be paid by C, who obligates himself to do so, the relationship of principal and surety as to this transaction is not created between B and C; nor are B and C joint obligors as to the debt due A. The rule is not changed by reason of the fact that C is the agent of B.

4. In the case at bar the written contracts disclosed, that no liability . attached to the oniy defendant suable in the venue where the action was instituted, that the other defendants were residents of this State and of a county other than that in which the suit was brought,- and that they were not joint obligors. The court erred in not dismissing the action, on demurrers properly raising these points. Judgment reversed.

The plaintiff alleged, that the contract was one, though evidenced in three .separate documents, by the terms of which he was employed as agent of the insurance company at a salary of $4,250 per annum, and the sum sued for is the balance due him thereunder; that Shaw was the agent of the insurance company and its director of agencies, and had power and authority to employ and contract with agents of it; that the agency company is a plan or method of the insurance company of employing and handling its agencies, and is a part and parcel of the insurance company in the conduct and management of its business and its agent to conduct the same; that it employed the agency company and Shaw as its agents, acting for it and on its behalf, in the employment of Statham as agent, and became liable to him in the full amount of said salary, jointly and severally with the agency company and Shaw; that after their execution the defendants treated and construed the three contracts as one, and dealt with Statham under them as one contract of employment of him as agent of the insurance company at a salary of $4,250 per annum, and the insurance company paid to him, under said contract, $81.73 per week; and that the agency company and Shaw were and are the sureties for the insurance company, and no benefit followed to them or either of them by said contracts or obligations, but the' consideration was a benefit given to the insurance company as principal.

Each of the defendants demurred generally, and on the grounds: (1) that no facts are set forth that give the court jurisdiction of person or subject-matter; (2) for misjoinder of parties defendant; (3) for misjoinder of causes of action. The demurrer was overruled, and the defendants excepted.

Jackson & Orme, Allen Fort & Son, for plaintiffs in error.

E. A. Hawkins, contra.


text:
    1104.
    Bennett v. Ralf.
    Certiorari, from Cobb superior court — Judge Gober. January 7, 1908.
    Submitted May 8,
    Decided July 8, 1908.
    In the superior court a motion was made to dismiss the certiorari, because of failure to give due notice as to the time for hearing.. The record does not show any judgment on this motion, but shows a judgment sustaining the certiorari and remanding the case to the justice’s court for another trial. The bill of exceptions recites that “the court refused to dismiss the certiorari, but granted the same,” and refused “to put any kind of order upon the motion [to dismiss the certiorari] hereto attached as an exhibit.” The bill of exceptions does not assign error either upon the refusal to dismiss the certiorari or upon the refusal to put any kind of order upon the motion to dismiss. The only assignment of error is as follows: “Defendant in certiorari excepted to the order and judgment of the court sustaining the certiorari, and now excepts to the same upon the ground and for the reason that the same, as he insists, is contrary to law, and assigns the same as error.” In the brief submitted for the plaintiff in error this assignment of error is not alluded to, the brief being confined entirely to the refusal of the court to dismiss the certiorari or to enter upon the motion to dismiss an order refusing to entertain the motion.
   Hill, C. J.

1. Where the bill of exceptions recites that it was tendered within the time prescribed by the Civil Code, §5539, the writ of error will not he dismissed because the presiding judge failed to certify tlie same within the statutory period, unless it be made to appear that his failure to so certify was caused by some act of the plaintiff in error or his counsel. Acts 1896, p. 45; Moore v. Kelly & Jones Co., 109 Ga. 798 (35 S. E. 168).

2. In computing the ten days within which a hill of exceptions should be served, section 4, paragraph 8, of the Political Code, is applicable, and only the first or last day should be counted. Consequently a bill of exceptions certified on the 11th day of March, 1908, and served on the 21st of March, 1908, is within the ten days prescribed. Rusk v. Hill, 117 Ga. 722 (45 S. E. 42).

3. The failure to pay costs and give bond, or to file a proper pauper affidavit in lieu thereof, in excepting to the judgment of the court below, will not deprive this court of jurisdiction. It is only where it is desired that the bill of exceptions shall operate as a supersedeas that costs must be paid and bond given or pauper affidavit filed. Cummings v. Clegg, 82 Ga. 766 (9 S. E. 1042) ; Perkins v. Rowland, 69 Ga. 661.

4. Where the only assignment of error contained in the bill of exceptions is not alluded to or insisted on in the brief submitted for the plaintiff in error, this court will treat it as having been abandoned. Dicks v. State, 1 Ga. App. 192 (58 S. E. 335); Hines v. State, 2 Ga. App. 383 (58 S. E. 524); Stewart v. Marietta F. & B. Co., 129 Ga. 418 (59 S. E. 231). Judgment affirmed.

In this court a motion was made to dismiss the writ of error, on the following grounds: (1) “Because plaintiff in error failed to present his bill- of exceptions or to file the same within sixty days from the time he claims the alleged error complained of was made by the court below, the ruling and judgment complained of having been made January 7, 1908. The plaintiff in error did not present his bill of exceptions until March 11, 1908, a period of. 64 days having elapsed.” The bill of exceptions recites that it was tendered to the presiding judge within sixty days from the date of the judgment excepted to. (2) “Because plaintiff in error failed to serve defendant in error with a copy of the bill of exceptions within the time prescribed by law, there being eleven days from the time of granting bill of exceptions until acknowledgment of* service by counsel for defendant in error.” The bill of exceptions was certified on March 11, 1908, and served on March 21, 1908. (3) “Because none of the costs in the ease have been paid by plaintiff in error; neither has he filed any affidavit in forma pauperis, as appears of record.”

J. E. Mozley, H. B. Moss, for plaintiff in error.

R. N. Holland, contra.


text:
    1159.
    BATES v. THE STATE.
    1. A declaration of a witness previously made, inconsistent with his testimony in any material particular, is admissible for the purpose of impeachment, whether the declaration be a statement of facts inconsistent with his testimony, or an expression of opinion different from the conclusion which the facts testified to by him tend to establish.
    2. As a general rule, a party may show any fact or circumstance that may affect the credit of an opposing witness. Therefore, on the trial of a criminal ease, where a witness testifies against the defendant, the fact that the prosecutor is bail for the witness on an indictment is relevant testimony on the question of the credibility of the witness.
    3. In charging the jury on the law of self-defense, it was error for the court to give instructions susceptible of the construction that words, threats, menaces, or contemptuous gestures could be considered only in determining whether the accused, in killing the deceased, acted under the fears of a reasonable man that his life was in danger; thus excluding the defense that he acted under a reasonable fear that a felony was about to be committed upon his person.
    4. Where neither in the evidence nor in the defendant’s statement was there any fact, circumstance, or inference indicating the offense of voluntary manslaughter, a charge on the law of voluntary manslaughter was erroneous; and the verdict finding the defendant guilty of that offense must be set aside.
    Conviction of manslaughter, from Jasper superior court — Judge Lewis. April 20, 1908.
    Argued June 9,
    Decided July 8, 1908.

      Greene F. Johnson, for plaintiff in error.

      Joseph E. Pottle, solicitor-general, contra.
   Hill, C. J.

Sam Bates was indicted in the superior court of Jasper county for the crime of murder. He was convicted of voluntary manslaughter, and his motion for a new trial was overruled. The motion for a new trial contains numerous assignments of error, complaining of the admission of testimony, of the charge of the court; and of the failure to charge, and that the verdict for manslaughter is without evidence to support it. These assignments will be considered in their order so far as material, and will be fully understood by the following brief statement of the evidence: The State introduced the only witness who saw the homicide, and this witness testified, that the defendant, the deceased, and himself, on the day preceding the homicide, were out hunting birds; that during the afternoon they began drinking whisky, and about night they went into an old house called the “'Hardy place/’ for the purpose of playing cards for money. In a room of this house they built a fire, and they played there until about three o’clock in the morning, continuing to drink. About three o’clock the defendant got up from the game and said that he was going to quit, that he had to go home. Before he did this, the deceased, who was a loser in the game of cards, pawned his shotgun to the defendant for five dollars. When the defendant got up and said he was going home, the deceased told him to come on and go down to Mr. Hardy’s, where he would get the five dollars and redeem his gun. The defendant started to get the gun, and the deceased “beat him to it” and got it, and told the defendant to come on down to Mr. Hardy’s and get the five dollars. The defendant told him, no, he had to go home; and the deceased told the defendant two or three times to “come and go down there,” to Mr. Hardy’s, and the defendant replied each time that he had to go home. The defendant walked to the front door and turned around, and the deceased said something to him about the gun, and the defendant told the deceased to give it to him. The deceased told the defendant that he would not; that he was not going to do it, but to come on down and he would pay him for it. The defendant told the deceased to put the gun down, and that if he didn’t, he would kill him; and about that time he shot, and the deceased fell. Adjoining the room where the shooting took place there was a little shed-room, and when it took place the witness ran into this shed-room, and the defendant went to the shed-room and shot at the witness. When the defendant started to shoot, the deceased said, “Don’t do it;” and the witness said, “Don’t do that, Sam.” The deceased “was standing there, had /his gun unbreeched, stooped over, looking up at [the defendant], laughing.” Just before the defendant shot, the deceased said to him, “Come on and go down to Hardy’s store and get the five dollars,” that he owed him on the gun, that he had pawned it for. Just before the defendant fired, the deceased said “Don’t do that.” The defendant had his gun up on his shoulder, and had it on the deceased. He was four, five, or six feet from him. Just as the deceased said that, the defendant shot. All three .were drinking liquor during the game, and, though not drunk, were under its influence. When the deceased got the gun he had pawned to the defendant, the defendant told him to give it to him, and told Mm to put it down. The deceased had the gun in his hand when he told him to put it down. “I didn’t have my knife out, and don’t know why Sam shot at me. We had not had any fuss. I did not start at Sam with my knife. He run and throwed the gun in the door, and I jumped behind the door, and he shot right by me. He left the house soon after the shooting.” This was all the testimony introduced by the State as to the criminal transaction.

The defendant introduced no evidence, but relied upon his statement. This statement corroborated the testimony of the one witness for the State as to the hunting, drinking, and playing cards, and gave the following account of the homicide: “I caught Rowe [the State’s witness] dealing himself six cards, and I said I was going to quit. They said, ‘Don’t jump us that way. Come on back;’ and I thought I would play a little more.” “Ed, [the deceased] had pawned me his gun for $5. . . When I said I was going to quit, they said ‘Don’t jump us that way. Come on back.’ . . I had Ed’s gun, and I sat it down by the side of the fire board, and they wanted me to come over here [indicating], and I didn’t think about any fuss. I was playing, and Rowe kept on drinking and fussing around more than any of us, like he always does. I said ‘I am going home.’ I said, ‘Come on, Woody;’ and Rowe jumped up and jerked out his knife, and said, ‘God damn you, you shan’t jump us this way;’ and Ed said, ‘I would rather die and be in hell than to be treated this way;’ and I said, ‘There is no use in your cutting up this way, I am going home;’ and I picked up the single-barrel gun and started to get that other gun, and Ed beat me to it, and Rowe staggered up towards me and I began backing oif; and by that time Ed had raised up with the gun, sorter sideways to me, and had his back to me, sorter fooling with it, and I heard it click, and I said, ‘Ed, put that gun down;’ and Rowe said ‘Kill the damn jumping son of a bitch,’ and Ed said ‘Put down hell,’ and Ed threw the gun down this way [indicating], and I shot, and Rowe jumped right across Ed’s head, and I said, ‘You pick up that God damn gun and I will kill you.’ Then he run in there and he started back, and I throwed my gun up this way, and he dodged behind the door, and I shot through the door that led in there. Then I went and called the negro. Tie saw me when T shot Ed. T called him to come back in there. Woody said, ‘They will come back and kill you/ and I decided to take the gun he was laying on, and I caught him in the breast and laid him off the gun out of the blood, and I went on by Mr. Os-burn’s and called him up and told him that I had killed Waits, that I had to do it. T knew how Ed was any way when he got to drinking and got mad. He would hurt you. I went on then home. . . I was never in any trouble before this trouble, and I wouldn’t have done this thing if it hadn’t been for Ed trying to kill me.”

We will decide specifically only those assignments of error which we think entitle the plaintiff in error to another trial.

The defendant in the court below offered to lay the foundation for the impeachment of the only witness to the homicide, introduced by the State. It was proposed to ask the witness the following questions: “Don’t you recollect telling Henry Osburn, the next day after the homicide, that Sam [meaning the defendant] was coming clear?” The court excluded this question, on the ground that the testimony would be a mere matter of opinion, and therefore was not admissible to impeach the witness. We think this ruling was erroneous. This witness had testified to a state of facts which, if believed by the jury, would have authorized a conviction of murder. A statement made by him the very next day after the homicide, that the defendant “was coming clear,” was entirely inconsistent with this opinion, if the facts testified to by him were true; and an, expression of such an opiniqn by the witness was in effect a contradiction of his testimony. One of the most usual and impressive ways in which to contradict a statement is to prove a previous expression of an opinion inconsistent with such statement. The argument is both legitimate and logical that one who knows of the existence of facts which would establish a certain conclusion would not express an opinion contrary to and contradictory of these facts. To illustrate: if the witness in the present case, on the very day, after the homicide, had stated that the defendant “would come clear,” that opinion could not have been based upon the facts narrated in his testimony; for, ■according to these facts, the defendant was guilty of an unprovoked murder. If the witness had previously stated that the defendant was “coming clear,” it was equivalent to an expression on his part of an opinion, from the facts within his knowledge, that the defendant was not guilty. The expression of such an opinion would certainly tend to destroy the value of his testimony, which clearly showed that the defendant was guilty of murder.

We would be satisfied with the correctness of this conclusion even if it did not find support in any adjudicated case. But the Supreme Court has, we think, decided practically the same principle in several cases. In Cox v. State, 124 Ga. 95 (52 S. E. 150), it is held, that “Where a witness has testified to a material fact, prior declarations of his which appear to be inconsistent with the facts related by him on the trial are competent for the purpose of impeachment.” In the instant case the witness testified to material facts that, if believed, proved the murder. The declaration attributed to him not only appeared to be inconsistent with these facts, but was in fact strongly and clearly inconsistent therewith. “The testimony of the witness was inculpatory. His previous declaration was exculpatory. The two were in direct antagonism.” In Central Railway Co. v. Trammell, 114 Ga. 312 (49 S. E. 259), the court states the rule as follows: “In a case of the character disclosed by the present record, it is competent to prove, for the purpose of impeaching a witness who has testified that the fire was caused by other agencies than the railroad company, that on the night upon which the fire occurred he expressed a decided conviction that the fire was caused by the railroad company.” In the opinion the court says: “Of course, proof of the previous statement did not necessarily show that his statement at the trial was false; but we think the jury should have been allowed to consider the evidence that he had, on a former occasion, expressed a very decided conviction, whether it was founded on sufficient reasons or not, that the fire was caused by sparks from the defendant’s engine.” In Jordan v. State, 120 Ga. 864 (48 S. E. 352), the court uses this language, “Where, in the trial of one accused of seduction, a witness for the accused has given testimony tending to show lewd conduct on the part of the prosecutrix, which, if true, was known to the witness prior to the time of the alleged seduction, declarations to third persons, made by him subsequently to that time, not in the presence of the accused, tending to show that he thought the prosecutrix a chaste and virtuous female, are admissible in evidence, after proper foundation laid, to impeach the witness.” Proof of previous statements of witnesses, inconsistent with their testimony, is not confined to previous statements of facts; proof of previous expressions of opinion which are inconsistent with the testimony of the witness, and which expressions of opinion tend to detract from the value of the testimony, should be allowed for the purpose of discrediting the witness. 1 Greenleaf on Evidence (16th ed.), §264 a. We conclude that the defendant in this case had the right to lay the foundation proposed, for the purpose of attacking the credibility of the witness, who was the only witness to the criminal act, and whose testimony bore so strongly against his innocence; and it was reversible error on the part of the trial judge to deny him this privilege.

Error is assigned upon the ruling of the court in refusing to allow the State’s witness, on cross-examination, to answer the following question: “Is it not true that Cal Price is on your bond in this gambling ease?” Cal Price was admittedly the real prosecutor; and, at the time the homicide occurred, this witness, with the -deceased and the defendant, was gambling, and he had been indicted for gambling; and it is stated that he would have answered the question in the affirmative. The testimony was excluded on the ground that it was irrelevant. The court did permit, on cross-examinatipn, evidence that this witness and the real prosecutor, Cal Price, were on intimate and friendly relations, and had been together during the trial. We think this testimony was admissible, as against the objection made to its introduction. The Penal Code, §1023, declares that “the state of the witness’s feelings to the parties, and his relationship, may always be proved for the consideration of the jury.” The relationship of the witness to one of the parties is an important fact in properly estimating the credit to be given the witness who swears in behalf of that party. The relationship of principal and bail is one that necessarily raises a sense of obligation on the part of the principal. The fact that the witness is an employee -of one of the parties is a proper matter to be considered by the jury, in passing upon his credibility. Central Ry. Co. v. Bagley, 121 Ga. 781 (49 S. E. 780). It has been frequently held that a party may prove anything which might in the slightest degree affect the credit of an opposing witness. Thus, it may be shown that the witness is under obligation to the party calling him. 8 Enc. PI. & Pr. 120. A feeling of grateful obligalion naturally arises in the breast of the principal towards his bail. This act of kindness on the part of the bail keeps him out of jail. In addition to this feeling there must also be a consciousness on the part of the principal that if he displeases in any way his bail, the latter can at once end his freedom and surrender him *to the sheriff. Penal Code, §935. This testimony, therefore, we think, was clearly admissible as against the objection that it was irrelevant. This was the only objection urged against it in the court below.

The following excerpt from the. charge of the court is assigned as error: “While it is true that a provocation by words, threats, menaces, or contemptuous gestures will not reduce the crime from murder to voluntary manslaughter, and that the crime would be murder, under the law, where it is done in the heat of passion growing out of a provocation by words, threats, menaces, or contemptuous gestures, yet it is proper, and the duty of the jury, in passing upon the question as to whether or not the defendant tcok the life of the deceased laboring under the fears of a- reasonable man that his life was in danger, to take into consideration words, threats, menaces, or contemptuous gestures, together with all the other facts surrounding the homicide, in passing upon the issue as to whether or not he acted in self-defense, or under the fears of a reasonable man that his life was in danger.” The objection which we think is justly made to this part of the charge is that, under it, words, threats, menaces, or contemptuous gestures can be considered by the jury only in determining whether the defendant acted under the fears of a reasonable man that his life was in danger. Under the law the right of self-defense exists as against one who manifestly intends or endeavors, by violence or surprise, either to take life or to commit a felony on the person, and the jury would have the right to consider words, threats, menaces, or contemptuous gestures, in deciding whether the defendant was acting under the fears of a reasonable man either that the purpose of the deceased was manifestly to commit a felony upon his person, or to take his life; in other words, that the right of self-defense exists in either event, and that the jury would have the same right 'in either ease to consider words, threats, menaces, or contemptuous gestures, in determining the question as to whether or not the defendant was really acting under the fears of a reasonable man that either crime was about to be committed by the deceased upon his person. Cumming v. State, 99 Ga. 662 (27 S. E. 177); Stubbs v. State, 110 Ga. 917 (36 S. E. 200).

The court charged the doctrine of voluntary manslaughter, and it is insisted that neither the evidence nor the defendant’s statement authorized such charge. We have examined the evidence and the defendant’s statement, and we have arrived at the conclusion, that on no view of the evidence or the statement, or any reasonable inference therefrom, could the offense of voluntary manslaughter be predicated; and that therefore the charge of the court on this subject was inapplicable and probably prejudicial to the defendant. The evidence for the State makes a case of unprovoked murder. According to this evidence, when the deceased was shot he had his gun unbreeched, and was looking up in the face of the defendant, laughing and begging him not to shoot him, and the only witness present also begged the defendant not to shoot the deceased. With no assault made upon him, with no provocation whatever to shoot, with nothing to justify any sudden heat of passion, the defendant shot the deceased. This is the evidence for the State.

The defendant introduced no testimony, but relied upon his own statement. In this statement he declared, that the deceased raised the gun towards him and he heard it click, and he called to the deceased to put the gun down, and that the deceased replied, “Put down hell;” that the third party present, the only witness for the State, called upon the deceased to “kill the damn jumping son of a bitch” (meaning the defendant) ; and that the deceased thereupon drew the gun upon him> and shot, to save his own life. It will thus be seen, from this brief statement, that there was no middle ground; that if the evidence for the State was the truth, the verdict should have been for murder; that if the defendant’s statement was the truth, the defendant should have been acquitted; and that the charge on the law of voluntary manslaughter led the jury away from the consideration of the truth as it existed in the evidence, or from the truth as it existed in the prisoner’s statement, and induced them to agree on a compromise verdict, without any evidence whatever to support it. Therefore, following the repeated rulings of the Supreme Court and of this court, we are constrained to hold in this case that the law of voluntary manslaughter was improperly given in charge by the court, and that the verdict of the jury for this offense, being without evidence, must be set aside as contrary to law. Reeves v. State, 2 Ga. App. 414 (58 S. E. 548); Watts v. State, 3 Ga. App. 606 (60 S. E. 287); Berry v. State, 122 Ga. 429 (50 S. E. 345).

Judgment reversed.


text:
    1192.
    PUGHSLEY v. THE STATE.
    This case is controlled by Brown v. State, 104 Ga. 525 (30 S. E. 837) ; Glover v. Slate, ante, 455 (61 S. E. 862), and Mason v. State, 1 Ga. App. 534 (58 S. E. 139).
    Accusation of unlawful sale of liquor, from city court of Swainsboro — Judge Mitchell. April 20, 1908.
    Argued June 9,
    Decided July 8, 1908.

      Saffold & Larsen, for plaintiff in error.

      Henry R. Daniel, solicitor, contra.
   Powell, J.

The defendant was charged, under §431 of the Penal Code, with selling liquor without a license in Emanuel county. The sale took place in Swainsboro on December 31, 1907. In 1876 an act was passed fixing a license fee for sales of spirituous liquors in that county at $1,000. In 1877 (Acts 1877, p. 189) an act was passed making it unlawful to sell intoxicating liquors within three miles of the Masonic Academy in Swainsboro in that county. In 1882 (Acts 1882, p. 601) the local license act of 1876 was amended so as to include other intoxicating liquors within its provisions. In 1887 (Acts 1887, p. 849) this license act was again amended, so as to increase the fee to $10,000. In 1900 (Acts 1900, p. 345) the city council of Swainsboro were given certain powers relating to intoxicating liquors. In Mason v. State, 1 Ga. App. 534 (58 S. E. 139), we held (with much doubt, we confess) that this last-cited act effected no repeal of any portion of the act of 1877 prohibiting altogether the sales of intoxicating liquors within three miles of the Masonic Academy in Swainsboro. The act of 1877 withdrew from the operation of the local license law of 1876 all the territory within three miles of the Masonic Academy. The. subsequent amendments to the license law ex pressed no intention of extending its territorial operation or of repealing the act of 1877. The case therefore falls within the decisions of the Supreme Court in Brown v. State, 104 Ga. 525 (30 S. E. 837), Bailey v. State, 114 Ga. 79 (39 S. E. 918), Collins v. State, 114 Ga. 70 (39 S. E. 916), and Patton v. State, 80 Ga. 714 (6 S. E. 273), and of this court in Glover v. State, ante, 455 (61 S. E. 862), holding that one can not be properly indicted and convicted for selling without a license in territory in which the sale is wholly prohibited. Judgment reversed.


text:
    1204.
    TOOKE v. THE STATE.
    1. Before this court is authorized or required to certify any question to the Supreme Court on the ground that it is a constitutional question, it must be specifically made in the record, and must also be necessary to the proper determination of the case.
    (a) An allegation, in a demurrer to an indictment, that the statute on which the indictment is based deprives the defendant of his life, liberty, and property, without due process of law, and is therefore violative of the properly-designated constitutional provision on that subject, is not sufficiently specific, unless it points out how or wherein such deprivation takes place.
    (b) A party can not raise a constitutional question in a case by placing a factitious or incorrect interpretation upon a law and basing the alleged unconstitutionality on the effect of such an interpretation.
    (c) Whether a statute is or is not unconstitutional must be determined according to the construction placed upon it by that court having final power to construe it.

      (d) As to the construction of all criminal statutes in this State (excepting only certain eases arising under statutes creating felonies punishable by death) the Court of Appeals is the final arbiter.
    2. A single accusation or indictment may include therein, in separate counts, any number of distinct misdemeanors of the same nature.

      (а) It is permissible to join one or more counts charging violation of the general prohibition law, which went into effect January 1, 1908, with counts charging violations of such laws regulating or prohibiting the sale, etc., of intoxicating liquors as may have been in force in the particular venue of the trial prior to that date and within the period prescribed by the statute of limitations.
    (b) Persons may be prosecuted and convicted for violations occurring prior to January 1, 1908, of those laws which were suspended or repealed by the enactment of the general prohibition law.
    3. A plurality of counts in an indictment may be occasioned by the charging of the same criminal transaction as having been committed in a number of different ways, or by the charging of a number of distinct transaetions of the same general nature. The courts disregard the form and look to the substance, in determining the rights of the parties under the respective methods of procedure.

      (а) Upon an indictment containing more than one count, all charging misdemeanors, a general verdict of guilty is to be construed as convicting the defendant of each and every separate criminal transaction alleged throughout the indictment.
    (b) If by the indictment the defendant is prosecuted for only one offense, though it contains a number of counts in which the method of the commission of this offense is variously stated, a general verdict of guilty will be upheld against the contention that it is contrary to the evidence, if any one of the counts is supported by the proof.
    (c) If by the indictment the defendant is prosecuted for several distinct offenses set forth in its various counts, a general verdict of guilty can not be upheld, unless there is sufficient proof to justify a conviction under each and all of them.
    (d) The jury may legally acquit the defendant as to some of the counts and convict him as to others.
    (e) Where the plurality of counts is occasioned by the joining of more than one distinct misdemeanor, the better practice is to require the jury to render a separate verdict as to each count contained in the indictment and not specifically abandoned by the State’s counsel or withdrawn by the court from the consideration of the jury. In a trial upon such an indictment the court should not instruct the jury that if they should find the defendant guilty under any of the counts, they should render a general verdict of “We, the jury, find the defendant-guilty;” but, on the contrary, should instruct them that they should return that form of verdict only in the event they should find the defendant guilty as to each and every criminal transaction with which he stands charged.
    4. Under the general prohibition law of this State (Acts 1907, p. 81), it is criminal for any person to keep or furnish any intoxicating liquor at any “public place.” The phrase “public place,” as here used, is to be given a relative meaning; and a place may be public during some hours of the day and private during others.

      (a) The phrase “public place,” as used in the prohibition law, by a broad, general, and not wholly exhaustive definition, includes any place which, from its public eharaetei-, members of the general public frequent, or where they may be expected to congregate at any time as a matter of common right; also any place at which, even though it is privately owned or controlled, a number of persons have assembled, through common usage or by general or indiscriminate invitation, express or implied; it excludes those places which, though publicly owned, are devoted to a private use and are not open to the access of the public; also those -places privately owned or controlled from which the indiscriminate public is generally excluded, notwithstanding that at a particular time in question a number of persons may have congregated there, if the congregation is the result of special invitation for that occasion alone.
    (b) A town guard-house, relatively to a prisoner confined in a cell therein with a sole companion, is not a public place.

      (c) A person’s residence, primarily, is not a public place, but it may become so through the use to which the owner devotes it.

      5. Upon a trial for the violation of the several provisions of the general prohibition law, evidence that the defendant received frequent shipments of liquor, that he had a large amount on hand in his home, that in his house there were generally a number of persons singing, carousing, and otherwise acting disorderly, is admissible, against the objection of irrelevancy.
    6. The fact that evidence against a defendant was obtained through an illegal search of his house will not render it incompetent or inadmissible.
    Accusation of unlawful sale of liquor, from city court of Oglethorpe — Judge Greer. April 22, 1908.
    Argued June 10,
    Decided July 8, 1908.

      Hixon & Greer, for plaintiff in error.

      Jule Felton, solicitor, contra.
   Powell, J.

The defendant was convicted on an accusation charging: (1) that on the 1st day of February, 1908, he did “sell for a valuable consideration certain spirituous, malt, or intoxicating liquors in the county of Macon, State of Georgia, said county being then and there a county wherein the sale of such liquors was at the time of said sale prohibited by law;” (2) “at the time and place aforesaid, unlawfully and with force and arms, did sell and barter for a valuable consideration certain alcoholic, spirituous, and intoxicating liquors, or intoxicating bitters, or other drinks which, if drunk to excess, will produce intoxication;” (3) “did, at the time and place aforesaid, then and there keep, at a public place in said county, viz., at the jail or.guard-house of the town of Oglethorpe, on the public square of the county of Macon, certain alcoholic, spirituous, malt, or intoxicating liquors, or intoxicating bitters, or other drinks which, if drunk to excess, will produce intoxication;” (4) “did, at the time and place aforesaid, furnish to one David Hall certain alcoholic, spirituous, malt, or intoxicating liquors, or intoxicating bitters, or other drinks which, if drunk to excess, will produce intoxication, at a public place in said county, viz., at the guard-house or jail of the city of Oglethorpe, upon the public square of the county of Macon;” (5) “'at the time and place aforesaid did keep on hand at his place of business certain,alcoholic, spirituous, malt, or intoxicating liquors, or intoxicating bitters, or other drinks which, if drunk to excess, will produce intoxication.”

Upon, arraignment he filed a demurrer containing the following grounds: “Because said accusation charges defendant with the commission of a crime under two separate and distinct laws, to wit, local-option law as was of force in some counties in the State prior to 1908, and the general prohibition law of 1908, in one and the same accusation.” “Because said accusation in the first count charges the defendant with the violation of the local-option law as it existed and was of force in said county of Macon prior to January 1, 1908, and in the same accusation, in counts second, third, fourth, and fifth thereof, charges the defendant with the violation of the prohibition law and different provisions thereof as embodied in act of 1907, page 81, going into effect January 1, 1908.” “Defendant demurs to the first count of said accusation, for that the local option law, as it existed, if at all, in the county of Macon prior to 1908, was superseded and repealed by the general prohibition law of 1907, going into effect January 1, 1908.” “Defendant demurs especially to count third in said accusation, for that that portion of the general prohibition law embodied in acts of 1907, p. 81, that attempts to prevent the keeping at public places alcoholic, spirituous, malt, or intoxicating liquors or bitters is unconstitutional and void,-is repugnant to and violative of article 1, section 1, paragraph 3, of the constitution of the State of Georgia, as embodied in Civil Code, §5707, and it is a deprivation of life, liberty, and property, without due process of law. And further, said portion of said act is unconstitutional and void, contrary to and violative of article 1, section 1, and paragraph 3, of the constitution of the State of Georgia, as embodied in Civil Code, §5730, in that each court trying a case thereunder would necessarily have to determine what would be and constitute a public place, and such determination would necessarily be ex post facto law. As to the case on trial, said portion of said act is further unconstitutional and void because it violates the spirit and letter of the fourteenth amendment of the constitution of the United States j and the same is further unconstitutional, void, and illegal for want of general uniformity and certainty. Different courts, in adjudicating and determining what would constitute a public place, would necessarily vary, according to temperament, environment, training, fixed beliefs, etc., of such courts.” “Defendant demurs specially to count fourth in said accusation, for that that portion of the general prohibition law embodied in acts of 1907, p. 81, that attempts to prohibit the furnishing at public places alcoholic, spirituous, malt, or intoxicating liquors or bitters is unconstitutional and void, is repugnant to and violative of article 1, section 1, paragraph 3, of the constitution- of the State of Georgia, as embodied in Civil Code, §5707, and it is a deprivation of life,, liberty, and property without due process of law. And '-further, said 'portion of said act is unconstitutional and void, contrary to and violative of article 1, section 1, paragraph 3, of the constitution of the State of Georgia as embodied in Civil Code, §5730, in that each court, in trying a case thereunder, would necessarily have to determine what would be and constitute a public place, and such determination would necessarily be ex post facto law. As to the ease on trial, said portion of said act is further unconstitutional and void because it violates the spirit and letter of the fourteenth amendment of the constitution of the United States; and the same is further unconstitutional, void, and illegal for want of general uniformity and certainty. Different courts, in adjudicating and determining what would constitute a public place, would necessarily vary according to temperament, environment, training, fixed beliefs, etc., of such courts.” “Because said act of the legislature of 1907, embodied in acts of 1907, p. 81, constituting the general prohibition law of the State, of Georgia which went into effect January 1, 1908, and so much thereof that attempts to prescribe that no alcoholic, spirituous, malt or intoxicating liquors or bitters shall.be kept in one’s place of business, is illegal and void, for that it is a deprivation of property without due process of law, is a restriction upon one of the most valuable characteristics of possession of property, that it is unreasonable and therefore violative of and contrary to article 1, section 1, paragraph 3, of the constitution of the State of Georgia, as embodied in Civil Code, §5707.”

The court overruled the demurrer, and the defendant preserved exceptions pendente lite. Upon the trial a general verdict of guilty was returned; the defendant filed a motion for a new trial, on various grounds; and to the overruling of this he also brings error. Further facts necessary to an understanding of the points presented will be stated in the course of the opinion.

We shall first examine the grounds of the demurrer with the purpose of ascertaining whether they present any such constitutional questions as to require us to certify them to the Supreme Court for decision. The ground that the portion of the general prohibition law which prohibits the keeping of liquors at public places is repugnant to article 1, section 1, paragraph 3, of the State constitution, in that the defendant is thereby deprived of life, liberty and property, without due process of law, is too vague and indefinite to present any question for decision. It does not state how or wherein the defendant is to be deprived of his life [sic], his liberty, or his property. This also applies to the similar attack upon that portion of the act which prohibits the furnishing of liquors at public places.

The grounds alleging that these provisions of the act are contrary to article 1, section 1, paragraph 3, of the State constitution, because “each court trying a cause thereunder would necessarily have to determine what would be and constitute a public place, and such a determination would necessarily be ex post facto law/’ present no question requiring certification. Should we overlook the fact that the portion of the constitution in which ex post factolaws are forbidden is not contained in the section and paragraph stated, but in article 1, section 3, paragraph 2, nevertheless the objection is bad, — the demurrer is speaking. The act does not leave to each court trying a cause the determination of what would, be a public place. What is a public place is not a matter of finding of fact, but of construction and definition. While each given, case may involve the determination' of the question whether, under the facts presented, the place alleged was or was not, at the time of the transaction, a public place, still the subject-matter of the enactment remains fixed and uniform. Under the act itself, neithexthe court nor the jury can, by construction or finding, declare that, to be a public place which was not so at the time the alleged offense was committed. Since the demurrer assumes the contrary of this proposition, it is speaking. A party can not create a constitutional question by giving to a law a factitious meaning. This court is the final arbiter as to the meaning of all criminal statutes-in this State, except those creating crimes punishable by death;, and we will not certify to the Supreme Court any alleged constitutional question which places upon a statute which we have the final right to construe an interpretation which we have not adopted, and which we can not and do not adopt. It is an old principle that the constitutionality of a law is to be determined only from that construction placed upon it by that court whose duty it is finally to declare its meaning. The constitutional amendment creating this court requires. certification of a constitutional question only when that question is necessary to the proper determination of the ease; to certify a question based on a construction different from that adopted by us and applied in the actual administration of the law would be to certify a question not necessary to the proper determination of the case.

The point that the act, so far as it prohibits the keeping of intoxicating liquors at one’s place of business, is unconstitutional, is immaterial to the decision of the present case, as there was no testimony offered in support of the count of the indictment alleging a violation of this part of the law.

As to the other grounds of the demurrer: it is permissible to join, one or more counts charging violations of the general prohibition law which went into effect January 1, 1908, with counts charging violations” of such laws regulating or prohibiting the sale, etc., of intoxicating liquors, as ma3r have been of force in the particular venue prior to that time and within the statute of limitations. Sutton v. State, 124 Ga. 815 (53 S. E. 381); So. Express Co. v. State, 1 Ga. App. 700 (4), (58 S. E. 67). The demurrer on the ground of the alleged improper joinder of offenses was properly overruled. We may say in passing that the better practice in such cases would be to allege, as the time of the violation of the general prohibition law, some date subsequent to January 1, 1908; and as the time of the violation of statutes, suspended or repealed by that law, some date prior' to January 1, 1908; but a dereliction of this nature can be reached only by a special demurrer. Newsome v. State, 2 Ga. App. 392 (58 S. E. 672). It is still legally possible to indict and convict for violations of any of the laws repealed or suspended by the enactment of the general prohibition law, provided the offense occurred prior to January 1, 1908. By section 18 of the Penal Code, “All crimes shall be prosecuted and punished under the laws in force at the time of the commission thereof, notwithstanding the repeal of such laws before the trial takes place.” See also Patton v. State, 80 Ga. 714 (6 S. E. 273).

There was a general verdict of guilty. This means guilty on every count. Where offenses of different grades are joined in the same indictment, a general verdict of guilty means guilty of the highest offense (Dean v. State, 43 Ga. 219; Estes v. State, 55 Ga. 132); but where several misdemeanors, which though of the same general character are separate and distinct offenses, are joined in different counts of the same indictment, such a verdict is to be construed as a conviction on all of the counts. Driver v. State, 112 Ga. 229 (4), (37 S. E. 400); Bishop’s New Crim. Proc. §§1005 (a), 1015 (a) 4. That confusion to which Bishop refers, in the section, last cited, as arising from the fact that “a plurality of counts may mean that each one or each group thereof is for a distinct offense, or mean that one offense is charged in different ways, or that there is a mixture of the two methods,” exists to some extent in this State. Our Penal Code, §1033, provides that on the trial of all criminal cases the jury shall give a general verdict of guilty or not guilty. It is held, however, that a verdict of guilty, specifying the particular counts to which it relates, is nevertheless a general verdict; and that there may be a conviction as to some of the counts and an acquittal as to the others. Roberts v. State, 14 Ga. 8 (5), (58 Am. D. 528); Lynes v. State, 46 Ga. 209 (3); Wilson v. State, 67 Ga. 658. Confining our attention now to indictments charging misdemeanors only, we find that if the indictment as a whole relates to but one offense, to but one transaction, stated in different counts with variation of details so that the indictment, as pleading, may adapt itself to the different phases which may appear in the proof at the trial, a general verdict of guilty, without any specification as to the count on which it is rendered, is sustainable and proper, if any one of the counts be supported by sufficient proof. Dohme v. State, 68 Ga. 339. See also Stewart v. State, 58 Ga. 577; Williams v. State, 107 Ga. 693 (33 S. E. 641). On the other hand, if by the indictment the State is prosecuting not merely for one offense, but charges several different and distinct transactions, though of a kindred: nature, in the respective counts of the indictment, a general verdict of guilty is not sustainable, and is contrary to the evidence, unless the proof is such as to uphold a conviction as to each and every offense alleged. Driver v. State, supra. The State’s counsel may abandon or the judge may withdraw from the consideration of the jury the unsupported counts, and in that event a general verdict of guilty will relate only to the counts submitted. Weaver v. State, 108 Ga. 775 (33 S. E. 423). See also Camp v. State, 91 Ga. 8 (16 S. E. 379). The cases of Dohme and Driver, supra, are sufficiently alike in general complexion to present clearly the existing distinction. In Dohme’s case the defendant was indicted for a single transaction, the maintenance of a gaming-house; in one count the maintenance is alleged to have been immediate— that the defendant kept the house himself; in the other indirect— that he rented the rooms to another for the purpose of gaming; and in that case, therefore, proof that the defendant was guilty of the one crime in either of the forms alleged authorized a general verdict of guilty. In Driver’s case the three counts alleged three distinct transactions, not merely one transaction with the circumstantiality of its commission varied; it alleged the maintenance of a gaming-house, the maintenance of a gaming-table, also gaming; and there being no proof that the defendant maintained the house or kept the table, the general verdict of guilty was set aside, though there was sufficient evidence to convict him of the gaming. In a case like Dohme’s, separate indictments could not be returned for the offense in its different phases; or, if so, a jeopardy under one of. such indictments would bar a prosecution under any other. In a case like Driver’s, separate indictments may with perfect propriety be returned for the separate offenses, and jeopardy under one of them would afford no bar to a prosecution under either of the others. A paramount reason why the distinction should exist is this: where the indictment relates. to a sole transaction, and the pleader, not being certain as to the exact manner in which he shall be able to prove that the crime was committed, yet knowing that if he describes the offense with alternative or ambiguous allegations he renders the indictment subject to demurrer for duplicity, resorts to the fiction of charging that the defendant has committed a number of crimes, all in fact the same, yet varying in detail, — that is, charges the same offense in different counts, as if it were.a number of transactions, — the court on the trial of the case, and the appellate tribunal on a review of it, largely disregard the fiction and look to the substance, and not the form of the charge. Hence if the defendant is convicted generally, — that is to say on all of the counts, — the court imposes but a single sentence; or (under the former practice in England and under the present practice in some of the States) meets fiction with fiction, and imposes several sentences, but makes them run concurrently. On the other hand, where the same indictment really charges a number of distinct and separate transactions, it becomes the duty of the trial court to conduct the case, and of the appellate court to review it," just as if it were a consolidation of separate indictments; and where the defendant was convicted generally, — that is to say, on all of the counts — or specifically on more than one of them, — it was the course at common law to sentence the defendant on each count; and these sentences might be cumulative. For some reason, it has not been the practice in this State to impose cumulative sentences, upon the different counts of an indictment charging distinct offenses; but we know of no reason why it may not be done; for as to these things we are supposed to follow the common law. Indeed, all through the course of our reports are to be found intimations that the power to impose more than one sentence in such a case exists. Section 1041 of the Penal Code directs that in felonies, where the defendant is prosecuted and convicted on more than one indictment, the penalties shall be successive. Notwithstanding this provision, it is held in Fortson v. Elbert County, 117 Ga. 158 (43 S. E. 492), that as to.sentences in misdemeanor cases the rules of the common law prevail. See also Simmons v. Ga. Iron Co., 117 Ga. 318 (43 S. E. 780, 61 L. R. A. 739). By keeping in mind these fundamental differences between indictments plural in form only and those plural in substance also, many cases throughout our reports, which are frequently supposed to be conflicting, are found to be harmonious. In the case at bar the accusation was plural in sub- ' stance; the court, therefore, incorrectly instructed the jury that in case they found the defendant guilty on any of the counts, they should return a general verdict of guilty. And since some of the counts were not supported by proof, the verdict so rendered, under the reasoning above presented and under the direct authority of the Driver ease, supra, must be set aside, as being contrary to the evidence and without evidence to support it.

We shall not discuss all of the points made in the motion for a new trial, for many of them are necessarily covered by what is decided above. However, one of the points presented requires us to define a “public place,” as that expression is used in the general prohibition act. Among other things, that statute (Acts 1907, p. 81) makes it criminal for any person “to give away to induce trade at any place of business, or keep or furnish at any other public place,” any of the prohibited liquors. By two of the counts in the accusation the defendant was charged with violating this provision by having whisky at the town guard-house in Oglethorpe, and furnishing it to another there, it- being alleged that the town guard-house was a public place. The proof showed that the defendant, while a prisoner in the guard-house, had a flask of whisky in the cell with him, and gave his cell-mate a drink of it.

The expression “public place” has been a matter of frequent judicial definition. There are two general lines in which these definitions run, dependent largely, in each case, upon the particular context of the subject-matter of the enactment in which the words appear. The one looks to the ownership of the place; and in this view, any building, premises, or lot owned by any branch of the government, or devoted to its uses, is a public place; and if this definition were .adopted as to the law before us, a town calaboose or guard-house would be a public place. The other definition looks to the congregating of a number of persons, by common right or usage, or by a general express or implied invitation, as furnishing the element of publicity. Shelbogan v. State, 9 Tex. 430; State v. Alvey, 26 Tex. 155; State v. Barnes, 25 Tex. 654; Arnold v. State, 29 Ala. 46; State v. Luce, 9 Houst. (Del.) 396 (32 Atl. 1076). We are satisfied, from the context and the nature of the enactment, that the legislature in the present instance intended that the latter meaning should attach. The introduction of the word “other” into the context, immediately preceding the phrase “public place,” strongly argues for this interpretation; because the place just previously mentioned is “place of business,” which is not a public place in the sense of being devoted to governmental use. The object of this portion of the statute was to prevent the having of liquors at those places where they would tend to create a public nuisance. As. used in this sense, the phrase “public place” is one of great relativity; a place may be public at one time of the day and private at another. Defining broadly and generally, we shall say, then, that the term “public place,” within the purview of this law, includes any place which, from its public character, the members of the public frequent, or whepe they may be expected to congregate at any time as a matter of common, right; also any place at which, though privately owned or controlled, a number of persons have assembled, through common usage, or by general invitation, express or implied; it excludes-those places which, though publicly owned, are devoted to a private use and are not open to the access of the public; also those places privately owned and controlled from which the indiscriminate public is generally excluded, notwithstanding that at a particular time in question a number of persons may have congregated there, if the congregation is the result of special.invitation for that special occasion alone. We derive this general definition from a review of the large number of decisions rendered, by .the courts generally throughout the country upon similar phrases in criminal statutes. An excellent collection of- cases' will be found in 6 Words & Phrases, 5806. As exemplifying this definition, the following examples may be given. Public rooms and spaces of public buildings, such as court-houses, post-offices, etc., where the people do come or may come at all times as a matter of common right, are per se public places. Public offices in such buildings, where business with the public is transacted, are also public places. Eailway coaches and stations, boats, wharfs, omnibuses, theatres, churches, schoolhouses, and such places are protected during the period in which they are open to the congregating of persons. Dickey v. State, 68 Ala. 508; Reg. v. Watson, 20 Eng. L. & Eq. 599, 600; Reg. v. Holmes, Id. 597; Coleman v. State, 13 Ala. 602; Bishop v. Commonwealth, 13 Grat. (Va.) 785, 787. Stores, offices, shops, etc., while open for trade or business, are public places, but are covered by the preceding clause of the act which relates to places of business (a term which has been defined by this court in Roberts v. State, ante, 207, 60 S. E. 1082). Lorimer v. State, 76 Ind. 495, 496; Parker v. State, 26 Tex. 204; Williams v. State (Tex.) 34 S. W. 271; Campbell v. State, 17 Ala. 369; Windsor v. Commonwealth, 4 Leigh (Va.) 680; Commonwealth v. Feazle, 8 Grat. (Va.) 585. While closed to the public they are not within this immediate portion of the law. Graham v. State, 105 Ala. 130 (16 So. 934); Windsor v. Commonwealth, supra; Lorimer v. State, supra; Sherrod v. State, 25 Ala. 78. The lobbies, parlors; dining-rooms, etc., of a hotel are prima facie public; the individual rooms set apart for guests usually are not so, but may become so. Wortham v. Com., 5 Rand. (Va.) 669, Neal v. Com., 22 Grat. (Va.) 917; Bordeaux v. State, 31 Tex. Crim. 37 (19 S. W. 603); Comer v. State, 26 Tex. App. 509 (10 S. W. 106); Weiss v. State, 16 Tex. App. 431. The rooms of bona fide private clubs of select and discriminate membership, to which only members and specially-invited guests are permitted access, are prima facie not public; if the membership of the club is organized upon an indiscriminate basis, or if it admits upon special invitation, or if it is not a bona fide organization, or if it be organized or maintained chiefly for the purpose of encouraging or facilitating the drinking of liquors, it is a public place while persons are congregated there. Goldstein v. State (Tex.), 35 S. W. 289; Grant v. State, 33 Tex. Crim. 527 (27 S. W. 127). To have liquor at a public picnic, barbecue, or other entertainment where the guest list is not bona fide personal and exclusive, would be a violation of the statute; though to have it at a private entertainment, barbecue, banquet, or dinner (not given in a place otherwise public), where one ór more special guests are entertained for the special occasion by a private person, or even by a private club or society, would not be. A man’s home, his private apartments in a hotel or lodging house, his private office into which the public are not expected to come, are primarily not public places, but may be made so. If a person keeps liquor in his home or other private place, and allows persons to come there for it, and is accustomed to furnish it to them there, whether with or without pay, under such circumstances as to indicate that his premises are usually accessible to the neighboring public, or to a generality of people, he makes it a public place. Coleman v. State, 20 Ala. 51; Nichols v. State, 111 Ala. 58 (20 So. 564); State v. Sowers, 52 Ind. 311; Roquemore v. State, 19 Ala. 528; Lafferty v. State, 41 Tex. Cr. 606 (56 S. W. 623); Sewell v. Taylor, C. B. (N. S.) 160; State v. Spaulding, 61 Vt. 505 (17 Atl. 483). These examples are not presented as being exhaustive; nor as prejudging any particular state of facts. They are given merely for concrete illustration of what we had more generally and abstractly stated above. Tested by the definition of a public place, as thus defined and exemplified, it will be seen that while a town guard-house may be made a public place by an assemblage of persons there, it is not. primarily nor per se such a place. State v. Alvey, 26 Tex. 155. So public offices therein may be, while the cells are not. Certainly, relatively to a prisoner confined in a cell with a sole companion, it is not so. If the defendant had been charged with keeping the liquor on hand at his home, with due allegations as to how he had made that a public place, the conviction as to that might have been sustained under the proof; for it seems, according to his own statement, as well as from the proof, that he had large quantities of liquors on hand in his home, that persons frequented there day and night in unusual numbers, that he made a practice of ordering liquor for other persons, and of receiving it and delivering it there; but the conviction which might otherwise rest on this state of facts must be set aside because the accusation alleges that the transaction occurred at the guard-house, and not at the defendant’s home.

Evidence that the defendant received frequent shipments of liquor in unusual quantities, that he had a large amount on hand in his home, that in his house "there were generally a number of negroes singing and carousing and creating a “rough house,” was admissible on the trial, under the accusation, against the objection of irrelevancy. Bonner v. State, 2 Ga. App. 711 (58 S. E. 1123); 7 Enc. Evidence, 735 (d), 739 (H), 741 (d), 760 (R).

Evidence tending to incriminate the defendant was admissible, over the objection that it was procured through an illegal search of his house, even though he were also illegally arrested at the time. Glover v. State, ante, 455 (61 S. E. 862); Croy v. State, ante, 456 (61 S. E. 848); 7 Enc. Ev. 745 (L).

Judgyient reversed.