author: Broyles, C. J.

text:
    17497.
    Brown et al. v. The State.
    Criminal Law, 16 C. J. p. 806, n. 9; p. 961, n. 83; p. 971, n. 61; p. 1031, n. 88; p. 1091, ri. 86; p. 1092, n. 95; p. 1149, n. 91; p. 1150, n. 93; p. 1180, n. 74; 17 C. J. p. 272, n. 2; p. 339, n. 64; p. 357, n. 36.
    Homicide, 30 C. J. p. 409, n. 31; p. 418, n. 99, 3, 5.
   Broyles, C. J.

1. “On the trial of one for murder, where the evidence or the defendant’s statement at the trial would authorize the jury to find that the person killing acted in self-defense on account of a reasonable fear aroused in his mind by words, threats, or menaces, in connection with the other facts in the case, it is not erroneous for the court, in instructing the jury on the law of voluntary manslaughter, as contained in the Penal Code of 1910, § 65, to fail or refuse to charge in immediate connection therewith the right of the jury to consider words, threats, or menaces in determining whether the circumstances attending the homicide were such as to justify the fears of a reasonable man that his life was in imminent danger or that a felony was about to be committed upon his person.” “Instructions on the law of voluntary manslaughter and justifiable homicide should be independent of each other.” “Although the facts of a given case might authorize an instruction as to the right of the jury to consider words, menaces, or threats, in connection with the facts of the ease, as being sufficient to arouse the fears of a reasonable man that his person was in apparent or real danger of a felonious attack or that his life was in imminent danger, the failure to give such an instruction would not be erroneous solely for the reason that the court gave in charge to the jury the law of voluntary manslaughter in the language of the Penal Code of 1910, § 65.” Deal v. State, 145 Ga. 33 (1, 2, 3) (88 S. E. 573). Under the above-stated rulings, ground 3 of the amendment to the motion for a new trial is without merit.

2. “The trial judge is vested with large discretion in the conduct of judicial proceedings, and he may properly admonish the jury as to the desirability and importance of agreeing on a verdict, and may urge them to make every effort to do so consistent with their consciences.” 11 Enc. Pl. & Pr. 304; Golatt v. State, 130 Ga. 19 (60 S. E. 107). In the instant case, after the jury had been considering of their verdict for about twenty-two hours, they sent word to the judge that they wished to speak to hinr. They were brought into the court-room and informed him that they had failed to reach any conclusion. The judge thereupon inquired if the trouble was a question of law or of fact, and the foreman replied that it was a question of fact. The judge then instructed them as follows: “It is a case of considerable importance, and I am quite hopeful that the jury will be able to agree. You haven’t had the case with you a great while. I have no disposition to punish you or to make you uncomfortable at all, but the case has to be decided by some jury, and I suggest that you go to dinner now and rest yourselves and then come back and give it further consideration in an effort to get together.” Meld: The judge by these instructions did not unduly urge the jury to agree upon a verdict, and the language used was not calculated to injure the cause of the accused. It was not error to overrule a motion for a mistrial based upon such instructions. See, in this connection, Dalton Fruit & Produce Co. v. Puryear, 22 Ga. App. 489 (1) (96 S. E. 344).

Decided November 9, 1926.

Manslaughter; from Coffee superior court — Judge Reed. May 1, 1926.

Quincey & Quincey, Dicherson & Kelly, for plaintiffs in error.

A. B. Spence, solicitor-general, contra.

3. When the extracts from the charge of the court which are complained of in the remaining grounds of the amendment to the motion for a new trial are studied in the light of the charge as a whole and the facts of the case, no harmful error appears.

4. The verdict was amply authorized by the evidence (counsel for the accused virtually concede this, since in their brief they do not argue or insist upon the general gorunds of the motion for a new tidal), and the refusal to grant a new trial was not error.

Judgment affirmed.

Duke, J., concurs. BloodwortJi, J., absent on account of illness.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    17523.
    BROWN v. THE STATE.
    The court did not err in charging on confessions or in refusing to give the requested instructions on that subject.
    The evidence amply supported the verdict.
    Criminal Law, 16 C. J. p. 717, n. 39; p. 940, n. 46; p. 1002, n. 21 j p. 1036, n. 62; p. 1043, n. 32.
    Highways, 29 C. J. p. 670, n. 59.
    Decided November 9, 1926.
    Violation of automobile law; from city court of Savannah— Judge Rourlce. June 1, 1926.

      Aaron Kravitch, Gasper Wiseman, for plaintiff in error.

      Walter C. Hartridge, solicitor-general, Leo A. Morrissy, contra.
   Luke, J.

The defendant was convicted of operating an automobile on a public highway while under the influence of intoxicating liquor. There was evidence adduced on the trial that the defendant was drunk; that he was on a public highway; that he was driving his own ear, and that it ran into a truck and another automobile. All the special grounds of the motion refer to the charge on confessions.

The first special ground alleges that the court erred in refusing a request to charge as follows: “The State contends that the defendant made a confession. The defendant contends the defendant was so drunk he was not in possession of his mental faculties sufficiently to know what statements he was making, and therefore the confession could not be considered as an admission of guilt. A confession must be voluntary and made by a person who is sane and conscious and in possession of sufficient faculties to know what he was saying.” The court refused to adopt the language of the request, but did charge the law of confessions in terms of the statute. Counsel insisted that the defendant was too drunk to make the confession alleged. For the court to have adopted the language of the request would have been to give undue emphasis to this contention of the defense. “A trial judge should not give a charge which is argumentative or expressive of an opinion on-the facts of the case.” Johnson v. State, 148 Ga. 547 (4) (97 S. E. 515). “The court did not err in refusing a request to charge in reference to dying declarations, where the instruction requested was couched in strongly argumentative language, and its essential substance was included in instructions given.” Darby v. State, 16 Ga. App. 172 (5) (84 S. E. 724). The “essential substance” of this request was included in the instructions given. The court charged the jury that “all admissions should be scanned, with care, and confessions of guilt should be received with great caution. A confession alone uncorroborated with other evidence will not justify a conviction. To make a confession admissible, it must have been made voluntarily, and without being induced by another by the slightest hope of benefit or the remotest fear of injury.” Our lawmakers have purposely and wisely embodied the word “voluntary” in the statute on confessions. It is a broad term. It not only includes in its meaning freedom of choice, but also includes exercise of will without constraint by any force or influence. It is defined as “brought about by free choice; unconstrained by extraneous force or influence; endowed with possessing or exercising will; acting without constraint by extraneous force.” And “voluntarily” means “in a voluntary manner.” It will thus be seen that the trial judge, in charging that a confession must have been made voluntarily, charged the jury in substance and in effect that the making of a confession must be an exercise of the will unconstrained by any force or influence of any character. If the defendant was too much under the influence of liquor to exercise his will, then the confession was not voluntary in the true sense; and of this the jury was the judge.

The. second special ground of the motion for a .new trial complains of the charge on confessions as given by the court. It suffices to say that the charge given was in terms of the statute, and was sufficiently full and fair.

The third special ground alleges error “because the court charged the jury on the law of confessions, which was not borne out by the evidence.” In this contention there is no merit. The record shows that the defendant was drunk, was on a public highway, was in an automobile which ran into two other vehicles, and that when the county policeman came up the defendant said that “he was driving the car and took full responsibility for it, and he said that several times. . . He kept saying he took the. responsibility, he was driving; he said it was his car.” Under the facts of the case and the charge in the accusation, this was sufficient evidence to justify the charge on confessions as given by the court. Furthermore, the confession was not only corroborated by other testimony, but there was sufficient evidence to authorize a conviction had there been no confession. A witness for the State testified: “I found out this man [referring to the defendant] had run his car into Mr. Martin’s truck and knocked it in the ditch or off the road somewhere.” This was direct evidence that the defendant was driving, and, taken in connection with the other evidence relative to Mr. Martin’s truck being run into, and the defendant being drunk and on a public highway, it was sufficient to authorize the verdict.

The evidence amply supported the verdict; there was no error in the charge as alleged, and the court properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17524.
    BENSON v. THE STATE.
    The word “emigrants,” in section 632 of the Penal Code as amended by the act of 1920, as to the soliciting or procuring of emigrants without first procuring a license, does not apply to persons who have no intention of abandoning their residence in this State or of acquiring a domicile outside the State, but who leave the State merely for the purpose of temporarily engaging in work in another State.
    The evidence did not authorize the conviction of the accused.
    Emigrant, 20 O. J. p. 500, n. 24.
    Licenses, 37 C. J. p. 220, n. 98; p. 269, n. 30.
    Decided November 9, 1926.
    Soliciting emigrants; from Crisp superior court — Judge Crum. June 2, 1926.

      Dorris & Brown, for plaintiff in error.
   Broyles, C. J.

Section 632 of the Penal Code of 1910, as amended by the legislature in 1920 (G-a. L. 1920, pp. 87, 88), is as follows: “Any person who shall solicit or procure emigrants, or shall attempt to do so, without first procuring a license as required by law, shall be'guilty of a misdemeanor. An emigrant agent is any person who shall solicit or attempt to procure labor in this State to be employed beyond the limits of the same.” The first sentence in the above quotation constituted section 632 before it was amended. While the amendment defined an emigrant agent as any person who shall solicit or attempt to procure labor in this State to be employed beyond the limits of the State, it did not attempt to define the word “emigrants” in the section, and left that word undisturbed, and the offense denounced by that section as so ^mended is still the soliciting or the procuring of emigrants, or the attempt to solicit or procure emigrants. Under the well known' rule of law that criminal statutes must be strictly construed, such a. construction is imperative. It follows that the ruling of the Supreme Court in Varner v. State, 110 Ga. 595 (1, 2) (36 S. E. 93), made before the code section was amended by the act of 1920, is still the law of this State. That ruling was as follows: “1. An emigrant is one who quits Ms country for any lawful reason, with a design to settle elsewhere, and takes his family and property with him.” “2. It follows from the foregoing definition that one charged with a violation of a law prohibiting the soliciting or procuring of emigrants can not be convicted upon proof showing that the persons whom he solicited or procured to leave the State had no intention of abandoning their residence in this State or of acquiring a domicile in the other State, but were leaving merely for the purpose of temporarily engaging in work in the latter State.”

Under the above-stated rulings and the facts of the instant case, the conviction of the accused was unauthorized, and the refusal to grant a new trial was error.

Judgment reversed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17525.
    Cartwright v. The State.
    Decided November 9, 1926.
    Possessing liquor; from city court of Greenville — Judge Revill. June 3, 1926.

      M. Z. O'Neal, N. F. Culpepper, for plaintiff in error.

      J. F. Hatchett, solicitor, contra.
    Criminal Law, 16 C. J. p. 458, n. 76.
   Broyles, C. J.

1. Under the facts of the case the refusal to grant a continuance, upon the ground of absent witnesses, does not require a reversal of the judgment below.

2. The evidence demanded the verdict.

Judgment affirmed.

Luke, J., concurs. Bloodworlh, J., absent on account of illness.


text:
    17526.
    GLOVER v. THE STATE.
    A conviction of vagrancy was not authorized by the evidence.
    Criminal Law, 16 C. J. p. 761, n. 25.
    Vagrancy, 39 Cyc. p. 1112, n. 25, 26.
    Decided November 9, 1926.
    Vagrancy; from Laurens superior court — Judge Camp. June 12, 1926.

      G. G. Bidgooi, J. A. Merritt, E. L. Stephens, for plaintiff in error.

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

The accused was charged with vagrancy and was convicted; and he excepts to the overruling of his motion for a new trial. The State introduced certain testimony relative to the defendant’s transporting whisky and indulging in other immoral conduct. While this evidence was admissible and had 'probative value in showing whether or not the defendant. was earning an honest livelihood, it is not sufficient within itself to prove the defendant guilty of the offense charged in the indictment. As stated in Hartman v. State, 119 Ga. 429 (46 S. E. 628), these offenses “are made penal by other statutes covering each. It must be borne in mind that the accused was not tried under any such law, and that to authorize her conviction on the charge of vagrancy, proof of immoral conduct alone will not suffice.” No witness for the State swore that the defendant had. not worked, the State’s evidence being purely negative. Several witnesses for the defendant showed that he had worked some during the time he was alleged to be a vagrant. In fact the defendant proved that he had run a garage up to a few months before the finding of the indictment, and showed enough specific instances in which he had received pay for legitimate labor during the five months preceding the indictment, to support him, he being a single man. Besides these specific instances, there was some evidence that he had worked on cars for people whose names he did not know, and he had also sold his business. “The evidence in behalf of the State, being wholly negative in its character, is, in view of the testimony in behalf of the defendant, insufficient to authorize a conviction.” Hawks v. State, 3 Ga. App. 447 (2) (60 S. E. 207). See also Elders v. State, 17 Ga. App. 743 (88 S. E. 414). It necessarily follows that the court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17527.
    Manning v. The State.
    Decided November 9, 1926.
    Making liquor; from Laurens superior court — Judge Camp. June 12, 1926.

      Hightower & New, for plaintiff in error.

      Fred Kea, solicitor-general, contra.
    Criminal Law, 16 C. J. p. 267, n. 93; p. 271, n. 41.
   Broyles, C. J.

1. Under the facts of the case, the grounds of the amendment to the motion for a new trial show no cause for a reversal of the judgment below.

2. While the evidence connecting the accused with the offense charged was wholly circumstantial, it was sufficient to exclude every reasonable hypothesis save that of his guilt; and the judge having correctly instructed the jury upon the law of circumstantial evidence, and the find- . ing of the jury having been approved by the judge, and no error of law appearing, this court is without authority to interfere.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17528.
    Rogers v. Hughes et al.

    Decided November 9, 1926.
    Complaint; from Gordon superior court — Judge Tarver. May-24, 1926.

      J. M. Lang, for plaintiff. M. B. Eubanlcs, for defendants.
    Appeal and Error, 4 C. J. p. 858, n. 3.
   Broyles, C. J.

The evidence, while in acute conflict, authorized the verdict, and the grounds of the amendment to the motion for a new trial show no cause for another hearing of the case.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17532.
    Murray v. The State.
    Decided November 9, 1926.
    Possession and transportation of liquor; from city court of Way-cross — Judge Crawley. May 20, 1926.
    Intoxicating Liquors, 33 C. J. p. 759, n. 98; p. 761, n. 53.
   Broyles, C. J.

The evidence was not sufficient to authorize the conviction, and the refusal to grant a new trial was en-or.

Judgment reversed.

Luke, J., concurs. Bloodivorth, J., absent on account of illness.

According to the testimony of the sheriff (the only witness for the State), he with others pursuing an automobile, in which were the defendant and Clarence Murray, found in the back seat of the car eight five-gallon glass jugs of whisky in sacks covered by a blanket. Clarence was “under the steering wheel.” The witness testified: “I don’t know who owned the car. . . I can not swear that Hoke Murray [the defendant] had anything to do with the controlling and possession of the ear,” or “owned or controlled any of the whisky. . . I judged it belonged to the two boys. I do not know whether Hoke Murray knew it was whisky in the back seat or not. When we got to the car you could smell it though.” The defendant, in his statement at the trial, said that Clarence Murray invited him to go in the automobile just to ride around a little; that Clarence had borrowed the car and drove it, and he (the defendant) did not know and was not told that Clarence was going to get whisky, and did not have anything to do with the whisky, and did not at any time have possession or control of the car; that they turned off a road and went to a house, but he did not know whose house it was and did not help put anything in the car. The defendant’s statement was supported by the testimony of Clarence Murray, who said that he himself bought the whisky at the house at which they stopped, that it was tied up in sacks, and that the defendant was standing off some distance tailsing to a man at that time and did not have anything to do with the whisky.

Bennett & Bennett, John W. Bennett, for plaintiff in error.

W. C. Parker, solicitor, contra.


author: Beoyles, C. J.

text:
    17533.
    Daniel v. Bennett et al.

    Decided November 9, 1926.
    Trover; from Monroe superior court — Judge Persons. May 31, 1926.
    Appeal and Error, 4 C. J. 852, n. 56.
   Beoyles, C. J.

The verdict was authorized by the evidence, and the grounds of the amendment to the motion for a new trial show no cause for a reversal of the judgment below.

Judgment affirmed.

Luhe, J., concurs. Bloodworth, J., absent on account of illness.

Claude Christopher, for plaintiff.

Willingham & Willingham, for defendants.


text:
    17535.
    Hill v. The State.
    Decided November 9, 1926.
    Rehearing denied December 14, 1926.
    Possessing intoxicating liquor; from Fulton superior court-judge Howard. May 15, 1926.
    Application for certiorari was denied by the Supreme Court.

      George T. Fielding, Linton 8. James, for plaintiff in error.

      John A. Boykin, .solicitor-general, J. W. LeCraw, contra.
    Intoxicating' Liquors, 33 G. J. p. 761, n. 53.
   Luke, J.

The defendant’s conviction of possessing intoxicating liquor was amply supported by the evidence, and, no error of law being shown, the trial judge properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17538.
    McLarin et al. v. Fairburn School District.
    Decided November 9, 1926.
    Rehearing denied December 14, 1926.
    Appeal and Error, 4 O. J. p. 649, n. 36; p. 650, n. 37.
    Elections, 20 O. J. p. 87, n. 55, 58.
    Schools and School Districts, 35 Cyc. p. 990, n. 85.
   Broyles, C. J.

In an election for bonds to build a sehoolhouse for 'a school district in a county, “the bonds could not lawfully be issued without the assent of two thirds of the qualified voters of the district, voting at an election for that purpose, nor unless the two thirds so voting were a majority of the registered voters of the district.” Turk v. Royal, 34 Ga. App. 717 (7) (131 S. E. 119), and citation.

(а) A registered voter is not necessarily a qualified voter; and in a proceeding to validate school bonds, where it appeared that, although two thirds of the qualified voters of the district voted for the bonds, this did not constitute a majority of the registered voters of the district, the judge of the superior court had no authority to purge the list of the registered voters of the district of unqualified voters, so as to make the two thirds voting for the bonds a majority of the registered voters of the district, and his ruling in so doing -was error, and his judgment validating the bonds was error. '

(б) The above-stated ruling being controlling in the case, it is unnecessary to pass upon the other assignments of error. •

Judgment reversed.

Luke, J., concurs. Bloodworlh, J., absent on account of illness.

Validation of school bonds; from Campbell superior court— Judge Hutcheson. May 29, 1926.

Application for certiorari was made to the Supreme Court.

J. H. Longino, Post & Arnold, for plaintiffs in error.

Claude C. Smith, solicitor-general, Lawrence S. Camp, contra.


author: Bkoyles, C. J.

text:
    17539.
    Gordon v. The State.
    Decided November 9, 1926.
    Certiorari; from Jones superior court — Judge Park. May 20, 1926.

      J. B. Jackson, for plaintiff in error.

      J. B. Duke, solicitor-general, contra.
    Certiorari, 11 C. J. p. 219, n. 86.
   Bkoyles, C. J.

The bill of exceptions assigns as error the judgment overruling a certiorari. It appearing that the judgment complained of was rendered on May 20, 1926, and that the bill of exceptions was presented to the judge on June 15, 1926, this court is without jurisdiction to entertain the case.

Writ of error dismissed.

Lulce, J., concurs. Bloodioorth,, J., absent on account of iUness.


text:
    17540.
    Wilbanks v. The State.
    Decided November 9, 1926.
    Manslaughter; from Fulton superior court — Judge Howard. May 15, 1926.

      Hewlett & Dennis, J. O. Ewing, Branch & Howard, for plaintiff in error.

      John A. Boykin, solicitor-general, J. W. LeCraw, J. H. Hudson, contra.
    Criminal Law, 17 C. J. p. 264, n. 89; p. 271, n. 41.
   Broyles, C. J.

1. The grounds of the amendment to the motion for a new trial show no cause for a reversal of the judgment below.

2. While evidence adduced upon the trial amply authorized the defendant’s acquittal, there was other evidence which authorized his conviction; and, the finding of the jury against him having been approved by the trial judge, and no error of law upon the trial appearing, this court is without authority to interfere.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17542.
    JORDAN v. THE STATE.
    A conviction of the manufacture of intoxicating liquor was authorized by the evidence.
    Criminal Law, 17 C. J. p. 255, n. 55.
    Intoxicating Liquors, 33 C. J. p. 758, n. 80, 87.
    Decided November 9, 1926.
    Making intoxicating liquor; from Wilkes superior court — Judge Perryman. May 24, 1926.

      Hugh F. Combs, for plaintiff in error.

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

The defendant was convicted of manufacturing intoxicating liquor. The evidence showed that a part of a still, “the cap and worm,” was found in the defendant’s house; that it showed it “had been used recently;” that a path which “was beaten down and showed recent use” led from defendant’s house about 200 yards to “a thirty-gallon barrel of beer” which “was alcholic at the time and would produce drunkenness if drunk to excess;” that “all the tracks went to the defendant’s door.”' The path from the defendant’s house was the only used path leading to the place where the beer was found. “There was .an old path that led on by this place; it looked like a cow trail; it had been abandoned. There were no other paths.” The jury were justified in finding that the evidence excluded every reasonable hypothesis save that of the guilt of the accused.

The only special ground of the motion for a new trial complains of an excerpt from the charge of the court, and is without merit; and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17544.
    WINN v. THE STATE.
    A charge on the law of voluntary manslaughter, based on the theory of mutual combat, was authorized by the evidence.
    Homicide, 30 C. J. p. 389, n. 51; p. 406, n. 17, 19.
    Decided November 9, 1926.
    Manslaughter; from Crisp superior court — Judge Crum. June 11, 1926.

      Whipple & McKenzie, for plaintiff in error.

      J. B. Wall, solicitor-general, contra.
   Broyles, C. J.

The accused was tried for murder and convicted of voluntary manslaughter. His counsel in their brief abandon all assignments of error except upon the charge of the court on the law of voluntary manslaughter based upon the theory of mutual combat, counsel conceding that the evidence authorized the charge on'voluntary manslaughter based upon the theory of sudden heat of passion. It is well settled by repeated decisions of this court and the Supreme' Court that upon a trial for murder a charge upon the law of voluntary manslaughter based upon the theory of mutual combat is authorized if there be any evidence, however slight, or any portion of the defendant’s statement to the jury, authorizing a finding that at or immediately before the time of the homicide there was a mutual intention to fight on the part of both the accused and the deceased. Hnder the evidence adduced in this case, this court can not hold, as a matter of law, that the jury were not authorized so to find.

Judgment affirmed.

Luhe, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17545.
    BROWN v. THE STATE.
    A conviction of possessing intoxicating liquor was authorized by the evidence.
    Intoxicating Liquors, 33 C. J. p. 761, n. 53; p. 762, n. 61.
    Decided November 9, 1926.
    Possessing intoxicating liquor; from Appling superior court— Judge Beed. June 1, 1926.

      J. B. Moore, for plaintiff in error.

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

The defendant was convicted of possessing intoxicating liquor. A witness for the State testified: “Mr. Dorman and I went over to Prentiss in this county, and went into an old bay, and we found some beer and a distilling outfit there, and we found a path leading into it, and we went there about eight o’clock in the night, and about nine the same night the defendant came in there, the path that we went in, and came up to near where the still and beer was and went to the place where there had apparently been some old evidence of fire before, as there were coals and an old sign of where fire had been some time prior, and the defendant stooped down and it looked as though he was trying to build a fire, and the match went out, and the splinters that he had would not light, and he threw his light down and walked in the direction where we were, apparently looking for something, and we caught him. . . The beer was off some thirty or forty feet. . . The beer that we saw was intoxicating and is used to make what we commonly call moonshine whisky.” The defendant’s presence at the still at nine o’clock at night, coupled with the fact that he was endeavoring to build the fire, sufficiently indicates ownership or possession in contemplation of the law; and that the beer within thirty or forty feet of the still was in charge of the same person who controlled the still is a natural and reasonable deduction, and excludes every reasonable hypothesis save that of the guilt of the accused.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


author: Bboyles, C. J.

text:
    17547.
    Howard v. City of Macon.
    Decided November 9, 1926.
    Certiorari; from Bibb superior court — Judge Malcolm D. Jones. May 21, 1926.

      Earl W. Butler, for plaintiff in error.

      Hairy S. Strozier, Grady Gillon, contra.
    Municipal Corporations, 28 Cye. p. 828, n. 56.
   Bboyles, C. J.

There was evidence to authorize the defendant’s conviction in the recorder’s court of violating a city ordinance making it unlawful to permit a minor to enter or remain in a pool-room; no error of law is shown to have been committed, and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Luhe, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17549.
    Cain v. The State.
    Decided November 9, 1926.
    Larceny,- from city court of‘Alma — Judge Tuten. May 26, 1926.

      Homer L. Causey, for plaintiff in error.

      C. A. Williams, solicitor, contra.
    Criminal Law, 16 C. J. p. 1180, n. 74; p. 1217, n. 45.
   Broyles, C. J.

The motion for a new trial contained the usual general grounds only; the evidence authorized the verdict and the denial of the motion was not error.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17550.
    JONES v. CITY OF MACON.
    Although a certificate of the ordinary, stating that the defendant 'was an indigent soldier of the late European war, was issued to him in 1922, under section 1888 of the Civil Code as amended by act of 1919, which exempts such soldiers from license tax for conducting business, his conviction in the recorder’s court of the City of Macon, for violation of a municipal ordinance by conducting business in that city in the year 1926 without payment of a license tax to the city, was authorized by the evidence, there being ample evidence that he waif not indigent in 1926, and no legal reason being shown for exemption from a license tax for that year.
    Licenses, 37 O. J. p. 269, n. 30.
    Decided November 9, 1926.
    Petition for certiorari; from Bibb superior court — Judge Malcolm D. Jones. June 10, 1926.
    Application for certiorari was denied by the Supreme Court.

      J. D. Carlisle, E. W. Maynard, for plaintiff in error.

      Grady Gillon, Harry S. Strozier, contra.
   Luke, J.

Jones was convicted in the recorder’s court of violating a license ordinance of the City of Macon. He presented a petition for certiorari to the superior court which the judge of the superior court refused to sanction, and to this refusal he excepted and assigns error thereon.

The record shows that the city ordinance which Jones was convicted of violating was that providing a license for buying wages and salaries; that Jones was engaged in this business in 1926, under a license obtained from the ordinary in 1922 on the ground that he was an indigent soldier of the late European war; that the property he returned for taxation in'1926 amounted to $5,350; that he “has got between five and- six thousand dollars invested in the Broadway Trading Company;” that he gets about $350 a month as profit from this business; and that he sold one of his places of business to an employee for $3,000.

Counsel for the plaintiff in error contend in substance that the ordinary's license issued back in 1922 is conclusive and irrevocable, and that it can not ever be shown that the facts upon which it was based were untrue or that they have ceased to exist. To this we can not agree. While the ordinary might be able to certify to a patent, permanent physical disability, he necessarily could not certify that Jones would always be indigent, and, according to the record, did not certify that Jones was ever indigent, but certified in 1922 that Jones had filed an oath to that effect in the ordinary's office. Being an indigent soldier was the basis of his claim of exemption from paying a license. There was no claim of physical or mental disability. If there is no indigency, there can be no exemption. There is nothing in the act which provides for exemption years after the indigency or cause of exemption ceases to exist. The act provides that “a certificate from the ordinary stating the fact of his being [not having been in the past] such indigent soldier shall be sufficient proof.” Civil Code (1910), § 1888; Ga. L. 1919, p. 91. See Park’s Code Sup. 1922, § 1888. This provision in the act as to a certificate being sufficient proof does not render inadmissible evidence as to present indigency or lack of it. In the case of Coxwell v. Goddard, 119 Ga. 371 (46 S. E. 412), the Supreme Court held that the certificate of the court of ordinary was “only prima facie evidence” of the fact of disability of a Confederate soldier, and their judgment in that case was based on the “amended certificate of the ordinary, and also . . the allegations of the verified petition, which was offered as evidence, that Goddard was a disabled Confederate soldier.” In that case Lamar, J., speaking for the court said: “The exemption under section 1642 [now § 1888] is rooted in the sole fad of the owner of the business being a disabled Confederate soldier, not in the certificate, which is only prima facie evidence of the fact.” (Italics ours.) Applying the same rule to the instant ease, we hold that the exemption under this section is rooted in the sole fact of the owner of the business being an indigent soldier of the late European war, not in the certificate, which is only prima facie evidence of the fact.

The certificate of the ordinary begins with the words “This is to certify;” it shows on its face that it is a certificate, and the act of the General Assembly refers to it as a certificate, and not a judgment, as insisted by the plaintiff in error.

There being ample evidence that the defendant was not indigent in 1926, and no legal reason being shown for his exemption from a license tax for that year, the finding of the recorder was authorized; and no error of law having been committed on the trial, the judge of the superior court properly refused to sanction the certiorari.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17551.
    House v. The State.
    Decided November 9, 1926.
    Kidnaping; from Newton superior court — Judge Hutcheson. June 19, 1926.

      C. L. Redman, for plaintiff in error.

      Claude C. Smith, solicitor-general, contra.
    Criminal Law, 17 C. J. p. 255, n. 53; p. 339, n. 64.
   Broyles, C. J.

1. Under the ruling in Taylor v. State, 25 Ga. App. 500 (1, 2) (103 S. E. 740), and the facts of the instant ease, the verdict was authorized by the evidence.

2. All the grounds of the amendment to the motion for a new trial are based upon alleged errors in the charge of the court. However, when the excerpts from the charge complained of are considered in the light of the facts of the case and the charge as a whole, no material or harmful error appears.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


author: Broyles, O. J.

text:
    17552.
    Hannah v. The State.
    Decided November 9, 1926.
    Certiorari; from Fulton superior court — Judge E. D. Thomas. May 27, 1926.

      H. H. Turner, for plaintiff in error.

      Boy Dorsey, solicitor, John A. Boykin, solicitor-general, J. W. LeCraw, contra.
    Criminal Law, 17 C. J. p. 147, n. 68.
   Broyles, O. J.

The bill of exceptions assigns error upon a judgment overruling a certiorari. It is disclosed by the bill of exceptions and the record that the judgment was rendered on May 27, 1926, and that the bill of exceptions was presented to the judge on June 21, 1926. This being a criminal case, and the bill of exceptions not having been tendered the judge within 20 days of the judgment complained of, this court is without jurisdiction to entertain the case.

Writ of error dismissed.

Luke, J., concurs. Bloodworth, J., absent on account of-illness.


text:
    17555.
    Knowles v. Roser.
    Decided November 9, 1926.
    Trover; from Floyd superior court — Judge Maddox. June 14, 1926.

      Maddox, Matthews & Owens, for plaintiff.

      Harris & Harris, for defendant.
    Appeal and Error, 4 O. J. p. 834, n. 60.
    New Trial, 29 Oye. p. 942, n. 95.
   Broyles, O. J.

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

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17556.
    DUNCAN v. PLATSHEK.
    “In order to sustain a cause of action against a landlord for failure to keep the premises in repair, the tenant must allege and prove that he has given the landlord notice of the defective condition of the premises.” In this case the allegation that notice was given “of the general repairs needed to the house” was not sufficiently specific to put defendant upon notice of the defective condition of the back porch; and it does not appear that the letter containing a direct reference to the back porch ever reached the landlord or his agent. The petition failed to set out a cause of action and the trial court properly sustained the general demurrer.

      Landlord and Tenant, 36 C. J. p. 222, n. 90, 94; p. 250, n. 88, 91; p. 251, n. 13.
    Pleading, 31 Oye. p. 78, n. 95.

      Decided November 9, 1926.
    Action for damages; from city court of Savannah — Judge Freeman. June 17, 1926.

      Oliver & Oliver, for plaintiff.

      George H. Richter, for defendant.
   Luke, J.

A. C. Duncan, by ber next friend, sued the defendant for damages for injuries alleged to have resulted from falling through a rotten board in the back porch of a certain house rented from the defendant and occupied by the plaintiff and her parents as tenants of the defendant. The question presented is whether or not the trial court erred in sustaining a general demurrer to the petition. Since the controlling factor is whether or not there is a sufficient allegation of notice to the defendant of the defective condition of the premises, only the portion of the petition concerning notice need be considered. Paragraph 5 of the petition is as follows: “That on October 1,,1923, petitioner’s father notified defendant’s agents, Platshek & Company, of the general repairs needed to -the house, and was advised by them that these repairs would be made promptly and the house given a general overhauling.” Paragraph 6 of the petition is: “That on November 1, 1923, petitioner’s father wrote a letter to defendant’s agents, Platshek & Company, notifying them of the condition of the house, and calling particular attention to the condition of the back porch of said premises; a copy of said letter being hereto attached marked exhibit A and hereby made a part hereof.” The material part of the letter referred to in paragraph 6 is as follows : “I also wish to put you on notice that the condition of the back porch is such that it is dangerous to venture on, and I will hold you liable for any injuries that may occur to me. or my family as a result of the decayed condition of this part of the property.” It is alleged as negligence that (1) “the boards of the flooring on the back porch of the premises were allowed by defendant to remain in a rotten and dangerous condition after being notified by petitioner’s father;” (2) “the defendant failed to have the flooring on the back porch of the premises promptly repaired after being notified by petitioner’s father of their defective and dangerous condition.” The case rests on the theory that the landlord failed to keep the premises in repair. “But, in order to sustain a cause of action against a landlord for failure to keep'tlie premises in repair, the tenant must allege and prove that he has given the landlord notice of the defective condition of the premises.” Roach v. LeGree, 18 Ga. App. 251 (89 S. E. 167), citing Guthman v. Castleberry, 48 Ga. 175; Stack v. Harris, 111 Ga. 149 (36 S. E. 615). The allegation in paragraph 5, as to notice “of the general repairs needed to the house,” and the promise “that these repairs would be made promptly and the house given a general overhauling,” is not specific enough to put the defendant upon notice of the defective back porch. Ledbetter v. Gibbs, 19 Ga. App. 485 (91 S. E. 875), and citations given above. The letter referred to in paragraph 6 of tlie petition contained a very specific description of the defects in the porch. The question is, does it appear from the petition that the letter reached the defendant’s agents? The clause, “wrote a letter to defendant’s agents,” etc., can not be considered as equivalent to an allegation that- the letter was actually delivered, nor is it the same as an allegation that the letter was properly directed, stamped, and mailed to the defendant’s agents. In short, construing the petition more strongly against the pleader, there is no allegation that the letter reached the defendant’s agents. Consequently, there was no notice of the defective condition of the back porch; and such notice being prerequisite to a recovery, the petition failed to set out 'a cause of action, and the general demurrer was properly sustained.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17559.
    SILLS v. THE STATE.
    A conviction of assault and battery, under an indictment charging rape, was authorized by the evidence; and the court did not err in charging the jury on assault and battery.
    Criminal Law, 16 C. J. p. 1023, n. 77, 79.
    Indictment and Information, 31 C. J. p. 457, n. 72, 73; p. 854, n. 38; p. 856, n. 61; p. 859, n. 12 New.
    Rape, 33 Cyc. p. 1453, n. 12; p. 1503, n. 20.
    Decided November 9, 1926.
    Assault and battery; from Bulloch superior court — Judge Strange. June 25, 1926.

      Anderson & Jones, for plaintiff in error.

      John G. Hollingsworth, solicitor-general, contra.
   Luke, J.

The accused was charged with rape and convicted of assault and battery. The only two special grounds of his motion for a new trial allege error because the court charged on assault and battery. Part, of the testimony in the case, if believed by the jury, would authorize a conviction of this offense. “It is conceded that a verdict of assault, or of assault and battery, or of assault with intent to commit a rape, may be founded upon an indictment for rape. An assault or assault and battery is necessarily involved in every case of rape. Speer v. State, 60 Ga. 381, 382; Goldin v. State, 104 Ga. 549, 551 (30 S. E. 749); Watson v. State, 116 Ga. 607 (43 S. E. 32, 21 L. R. A. (N. S.) 1). Where a charge of graver character includes a minor offense, if the evidence will justify a verdict finding the defendant guilty of the minor offense, it is the duty of the judge to instruct the jury as to the principles of law applicable thereto. The graver offense must either necessarily include the minor offense, or the indictment must charge the essential elements of the minor offense. To state the rule as strongly as possible, the jury should in all cases be instructed that the defendant may be convicted of the lesser offense necessarily involved in the .graver offense, where the evidence submitted, under any view thereof, will authorize conviction of the lesser grade.” Moore v. State, 151 Ga. 662, 663 (108 S. E. 47).

The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17560.
    CENTRAL OF GEORGIA RAILWAY COMPANY v. CITY SUPPLY COMPANY.
    The railway company’s charges for icing a carload of oranges in interstate transportation, in order to preserve them, were recoverable by it, under the evidence in this case.
    Carriers, 10 C. J. p. 449, n. 77 New.
    Decided November 9, 1926.
    Certiorari; from Carroll superior court — Judge Roop. June 5, 1936.

      Smith & Taylor, for plaintiff.

      Smith & Millican, for defendant.
   Luke, J.

The Central of Georgia Railway Company sued the City Supply Company' for $53, charges for icing a car-load of oranges. Upon the trial of the case in a justice’s court judgment was rendered in favor of the defendant. The railway company was granted a writ of certiorari. The magistrate’s answer was that the railway company proved “that the $53 (the sum sued for) were charges for icing one car of oranges, which was shipped from Gentile, Florida, to Waycross, Georgia, and reconsigned from Waycross, Georgia, to the City Supply Company, Carroll-ton,' Georgia, and here the freight was paid by the City Supply Company, on said car of oranges; that it was necessary that said car of oranges should be iced in order to preserve said oranges, and unless same was iced said oranges would be damaged by the failure thereof; the railway company would be held liable for said damages through their negligence to ice said ear of oranges, as it was their custom to preserve all fruit by icing or other means, in order to take care of same; and that the $53 charges have never been paid by the City Supply Company; they only paid the freight charges and refused the icing charges on the refrigerator car.” The answer of the magistrate shows also that it was proved that the City Supply Company did not know that the car was to be iced, and that if it had so known the car would have been refused, and that the freight charges, except for icing the car, had been paid. On hearing the petition for certiorari and the answer thereto the judge of the superior court dismissed and overruled the certiorari; and to this judgment exception was taken. Held: The evidence, under the law, demanded a judgment in favor of the plaintiff. See, in this connection, Central of Ga. Ry. Co. v. O’Neal Mfg. Co., 19 Ga. App. 490 (91 S. E. 877), and cases there cited. Eor the reason that the evidence in the magistrate’s court demanded a finding for the Central of Georgia Railway Company, it was error to dismiss and overrule the certiorari.

Judgment reversed.

Broyles, C. J., concurs. Bloodworth, J., absent on account. of illness.


text:
    17562.
    UNION WAREHOUSE & COMPRESS CO. v. CITIZENS & SOUTHERN BANK.
    Whether a custom fixing the weight and the grade of bales of cotton in hundred-bale lots was a universal custom in the cotton trade at Augusta was a question of fact for the jury.
    The verdict was authorized by the evidence, and none of the grounds of the motion for a new trial require a reversal of the judgment.
    Customs and Usages, 17 C. J. p. 522, n. 62; p. 525, n. 87; p. 526, n. 87 91, 95.
    Decided November 9, 1926.
    Complaint; from Richmond superior court — Judge A. L. Franklin. June 11, 1926.

      Hamilton Phinizey, H. C. Hammond, W. H. Fleming, Lee & Congdon, for plaintiff in error.

      Wright & Jackson, Adams & Adams, contra.
   Broyles, C. J.

When this case was here before, this court certified certain questions to the Supreme Court, and that court made, among other rulings, the following: “Where a warehouseman, for cotton stored with him, issues to the owner his negotiable warehouse receipts in which the commodity is described only as so many bales, and neither the weight nor grade of cotton is stated or indicated, but at the time there is a universal, definite, and valid usage and custom in the trade in the locality of the transaction, known to the warehouseman, that bales of cotton should be of a given grade and weight, and if the bales of cotton for which such receipts, are issued are below such customary weight and grade, and if the owner, for value received, assign such receipts to one who takes the same relying upon such custom, and without any notice of the actual weight and grade of such cotton, when the warehouseman at the time of issuing such receipts knew or by the most casual inspection and in the exercise of the slightest ordinary care could and should have known’ of the actual weight and grade thereof, the warehouseman, in an action brought against him by the assignee, in which the above facts are alleged, will be liable for the difference between the actual value of the identical cotton stored' and the value of the same if of the customary weight and grade, although the warehouseman tendered to the assignee the identical hales of cotton for which the receipts were issued.

“(a) A universal,. definite, and valid custom or commercial usage, which defines and fixes the weight and grade of bales of cotton, is to be read into and made a part of receipts given by the warehouseman for their storage.

“(b) Where warehouse receipts are issued for bales of cotton without stating their weight or grade, parol evidence is admissible to prove the meaning of bales of cotton in the cotton trade or business; and to prove that a bale of cotton, according to the custom of the cotton trade, means a bale of a given weight and grade.

“(c) Warehouse receipts should be construed in accordance with the rules applicable to the construction of contracts in general, and especially in accordance with commercial usage.

“(d) Eepresentations in warehouse receipts, when expressly embraced therein or read into them by custom or usage, should usually be confined to those of which the warehouseman may ordinarily be presumed to have knowledge, or of which he-ought to know.

“(e) Where a warehouseman issued receipts for bales of cotton without expressly stating or indicating their weight or grade, but where by custom or commercial usage such bales of cotton must be of a given weight and grade, and the warehouseman can, by the most casual inspection and in the exercise of the slightest ordinary care, know of their weight and grade, such warehouseman will be liable to a bona fide assignee of the warehouse receipts given for the storage'of bales of cotton of the customary weight and grade.

“(f) The issuing of such receipts gives to the holder thereof a false credit, if the bales of cotton do not come up to such customary weight and grade; and the warehouseman will be estopped to deny, as against a bona fide assignee of such receipts, that the bales are not of such weight and grade.” See 157 Ga. 434 (122 S. E. 327); 32 Ga. App. 85 (122 S. E. 652).

Under these rulings and the evidence adduced upon the subsequent trial of the case, the verdict in favor of the plaintiff was authorized. This is true notwithstanding the fact that many witnesses testified (without contradiction) that there was no custom in the cotton trade at Augusta which read anything into receipts given by a warehouseman for the storage of cotton, since the reading into such receipts of the custom that fixes the weight and grade of bales of cotton in 100-bale lots or more is done by the law, and not by any custom.

The further fact, that many of the witnesses testified that the customary meaning of “bales of cotton” in the cotton trade "at Augusta did not apply to cotton stored in warehouses, merely tended to show that the custom was not universal in the cotton trade at Augusta, and since other witnesses testified that the custom was universal in the cotton trade at Augusta and that the words “bales of cotton” meant the same thing “on the street or in a warehouse or on the farm,” it became a question of fact, for the determination of the jury, whether the custom in question was a definite, known, uniform, reasonable, and universal custom in the cotton trade at Augusta. This question was submitted to the jury with appropriate instructions, and was settled by their verdict.

After a careful consideration of the voluminous grounds of the motion for a new trial, we have reached the conclusion that no reversible error appears, and that no useful purpose would be served by passing upon the grounds seriatim.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent ón account of illness.


text:
    17563.
    Louisville & Nashville Railroad Co. v. Johnson.
    Decided November 9, 1926.
    Damages; from city court of Atlanta — Judge Reid. June 12, 1926.

      Tye, Peeples & Tye, for plaintiff'in error.

      Homer C. Benton, contra.
    Carriers, 10 C. J. p. 790, n. 19.
   Luke, J.

The verdict for damages' against the railroad company, for ejecting the plaintiff from a passenger-train while he was within his rights as a passenger, was not without evidence to support it; and for no reason pointed out by special assignment of error did the court err in overruling the motion for a new trial.

Judgment affirmed..

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17564.
    Johnson v. The State.
    Decided November 9, 1926.
    Certiorari; from Fulton superior court — Judge E. D. Thomas. May 20, 1926.

      G. II. Cornwell, P. W. Flint, for plaintiff in error.

      Roy Borsey, solicitor, John A. Boylcin, solicitor-general, J. W. LeCraw, contra.
    Criminal Law, 16 C. J. p. 273, n. 24, 25; p. 274, n. 62 New.
   Broyles, C. J.

1. A former acquittal of the charge of public indecency will not bar a prosecution for being drunk at a place of public gathering or assembly. This is true although the evidence for the State may be the same in both cases. The offenses 'are separate and distinct. The evidence necessary to convict one of public indecency would not necessarily be sufficient to convict him of being drunk, and vice versa. “The true rule is, if the evidence required to convict under the first indictment would not be sufficient to convict under the second indictment, but proof of an additional fact would be necessary to constitute the offense charged in the second, the former conviction or acquittal could not be pleaded in bar to the second indictment.” Blair v. State, 81 Ga. 629 (2 a) (7 S. E. 855); Collier v. State, 8 Ga. App. 371 (2) (69 S. E. 29).

2. The court did not err in overruling the certiorari.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17565.
    Hargett v. The State.
    Decided November 9, 1926.
    Larceny; from Muscogee superior court — Judge McLaughlin. June 26, 1926.

      Frank W. Foley, B. Terry, for plaintiff in error.

      W. B. Flournoy, solicitor-general, contra.
    Criminal Law, 16 C. J. p. 1180, n. 74; p. 1217, n. 45.'
   Broyles, C. J.

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

Judgment affirmed.

Luke, J., concurs. Bloodivorth, J., absent on account of illness.


text:
    17567.
    McGOWAN-MOTES MOTOR COMPANY v. WHATLEY.
    By reason of the agreement between the automobile seller and the seller ■ of the tires to the buyer of the automobile, which the buyer took to another State and abandoned, that the seller of the automobile should bring it back on these tires and return the tires to the party who had sold them, the automobile seller was estopped from setting up title to the tires under the rule of accession.
    Accession, 1 C. J. p. 384, n. 41.
    Estoppel, 21 O. J. p. 1112, n. 40.
    Decided December 9, 1926.
    Claim; from Richmond superior court — Judge A. L. Franklin. June 26, 1926.
    Application for certiorari was denied by the Supreme Court.

      Mortimer M. Jarecky, Abram Levy, for plaintiff in error.

      John J. Jones, contra.
   Broyles, C. J.

A sold to B an automobile, under a retaining-title note and contract which reserved the title to the property in A until payment of the purchase price. The contract was duly recorded. Subsequently C sold to B, on open account, two automobile tires and tubes. These tires and tubes were put on the automobile and were never paid for. Some time after this purchase of the tires B abandoned the automobile in South Carolina (it having been 'bought in Augusta, Ga., and the balance of the purchase price not having been paid), and so notified C. Hpon being informed that the automobile was the property of' A, C notified A (who resided in Augusta) that B had abandoned the automobile in South Carolina; that his (C’s) tires and tubes were on the automobile, and that he was going from Augusta (his residence) to South Carolina and take his tires off the automobile and bring them to Augusta; that he realized, however, that if he did this, A would be put to the trouble and expense of sending other tires to South Carolina to bring the automobile back to Augusta, and, therefore, to accommodate A he would let him bring the automobile back on his (C’s) tires, provided that when A brought the automobile bade to Augusta he would give to hum (G) his tires and tubesj and A agreed to do so. In pursuance of this agreement, C abandoned his trip to South Carolina, and A brought the automobile to Augusta on C’s tires, and thereafter told C that he would either give him the tires and tubes or pay him the value thereof. Subsequently A, after consulting his lawyer, refused to give up the tires or to pay for them, and foreclosed his mortgage on the automobile, whereupon 0 sued out a purchase-money attachment against B and A for the tires and tubes sold to B, alleging as a ground of attachment against A that the tires and tubes were in his possession, and that he (A) was holding them for the benefit of B and in fraud against him (C). This attachment was levied on the tires and tubes while in A’s possession. A thereupon filed a claim to them, and the issue was decided in favor of C in a justice’s court, and on an appeal to the superior court the jury returned a verdict for C f-or an amount less than the purchase price of the tires and tubes. A’s motion for á new trial was overruled and he excepted.

Conceding (but not deciding) that the title to the tires and tubes in question, under the rule of accession, passed to A and gave him the rights incident to title and possession, he, by his above-stated agreement with C, waived such rights; and, both parties having acted upon the agreement to the benefit of A and the detriment of C, A was thereafter estopped from setting up such rights, and the verdict in favor of C was demanded. The grounds of .the'amendment to the motion for a new trial show no cause for another hearing of the ease.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17568.
    BELL v. THE STATE.
    A conviction of assault with intent to rape was authorized by the evidence.
    A charge on assault and battery was not required.
    A reversal is not required because the court permitted cross-examination of the defendant on his motion for a continuance, or because of the refusal to continue the case.
    Criminal Law, 16 C. J. p. 451, n. 90, 91; p. 1024, n. 80; 17 C. J. p. 255, n. 53.
    Rape, 33 Cyc. p. 1453, n. 13; p. 1486, n. 12.
    Decided November 9, 1926.
    Assault with intent to rape; from Evans superior court — Judge Sheppard. June 18, 1926.

      P. M. Anderson, for plaintiff in error,
    cited: 124 Ga. 784; 108 Ga. 477; 63 Ga. 355; 7 Ga. App. 397; 29 Ga. App. 389; 80 Ga. 452; 9 Ga. 121 (6); 24 Ga. 297 (3).

      J. Saxton Daniel, solicitor-general, contra.
   Luke, J.

The defendant was convicted of assault with intent to rape. The woman assaulted testified that about 12 o’clock at night the defendant waked her up; that he was lying on the bed beside her; that “the first thing that attracted my attention was his arm around my neck and his hand under my clothes. I was asleep, and his putting his' arm around my neck and his hand under my clothes is what waked me up. I just had on a nightgown. He put his hand on my person under my clothes. . .. I waked my husband by calling him and telling him Son Bell was trying to rape me, and when he seen my husband was getting up he went out on his all-fours;” that the defendant “went through the kitchen door on the front side and jumped the fence behind the kitchen, and went through the field down there I reckon a hundred yards from the house;” that in calling her husband, “I called Barney two or three times as loud as I could. I called him loud enough to wake him up. I just called, Barney, Barney, Son Bell 'is here trying to rape me,’ and he jumped up as quick as he could, and Bell turned me loose when he saw Barney was getting up.” Both the husband and wife testified positively that the defendant was the man who committed these acts. This evidence was sufficient to authorize the verdict. While there is some evidence which tends to show that the defendant was attempting to get the consent of the prosecutrix to have sexual intercourse, the jury believed, as charged in the indictment, that the defendant intended to commit rape. The credibility of the testimony is within the province of the jury only, and this province must not be invaded. The plaintiff in error insists that the crime charged would not have been attempted in- the same room with the husband. It is true that a normal man in a normal condition would not attempt to rape a woman in the same room with her husband; neither would he attempt to have sexual intercourse by consent of the woman, under such conditions; but there was some evidence that the defendant was drinking, and this could have emboldened him to take an unusual risk, and also augmented the criminal inclination. Furthermore, the evidence showed that the husband went “to Belleville that evening,” and that he saw the defendant there, and the defendant may have concluded that the husband was away from home; all of which was a question for the jury.

The first special ground of the motion alleges error because the court failed to charge the law of assault and battery. The indictment does not allege a battery. “If the indictment be for assault with intent to rape and does not charge a battery, and the proof shows a mere assault and battery without any intent to rape, the defendant can not be convicted of any offense, but should be acquitted.” Owens v. State, 9 Ga. App. 441 (71 S. E. 680). In accordance with this principle of law, the judge charged the jury that it must have been done with the intent to commit the offense of rape, and that if they had a reasonable doubt of this intent to commit rape, the defendant should be acquitted. There was no request for a charge on assault and battery, and no error in failing to give such a charge.

The court committed no reversible error in permitting the defendant to be cross-examined on his motion for a continuance, nor in refusing to continue the case, as set out in the 2nd and 3rd special grounds of the motion for a new trial. The counter-showing on the motion for a continuance discloses, among other things, that counsel who tried the case was the attorney originally employed, and that the accused was well defended. “All applications for a continuance are addressed to the sound legal discretion of the court,” and this discretion will not be interfered with unless abused. Penal Code, § 992; Caswell v. State, 27 Ga. App. 78 (107 S. E. 562); Eberhart v. State, 47 Ga. 606.

There being some evidence to authorize the verdict, and no reversible error of law having been committed, the trial judge did not err in overruling the motion for a new. trial.

Judgment affirmed.

Broyles, G. J., concurs. Bloodworth, J., absent on account of illness.


author: Broyles, C, J.

text:
    17569.
    Bryant v. The State.
    Decided November 9, 1926.
    Rehearing denied December 14, 1926.
    Assault; from city court of Savannah — Judge Bourke. June 19, 1926.
    A fifteen-year-old white girl, according to her testimony, was walking .down a street-car track at night with her little brother, when she saw two negro boys sitting on the car-track. She testified: “When we passed by they got up and walked towards me. One of them said ‘’Stop,’ and I ran. They ran a few steps after me and then turned and ran away. I was very near my aunt’s home, and ran into her house.” She identified the defendant as one of the boys. The defendant, by his statement at the trial and by witnesses, attempted to establish an alibi.

      Stella Akin, for plaintiff in error,
    cited: Penal Code (1910), § 95; 95 Ga. 481; 53 Ga. 205; 99 Ga. 203; 114 Ga. 78; 116 Ga. 516; 4 Ga. App. 167; 7 Ga. App. 206; 5 C. J. 716, 717; 13 N. D. 337, 342 (100 N. W. 697); 125 Iowa, 694 (101 N. W. 520); 136 N. C. 544 (48 S. E. 544; 103 Am. St. Rep. 970); 30 Miss. 521, 525; 67 Mo. 84; 82 N. C. 549.

      Walter C. Sartridge, solicitor-general, Leo A. Morrissy, contra,
    cited: 25 Ga. App. 31, 32; 99 Ga. 38-44; 108 Ga. 477; 10 Ga. App. 403-7; 3 Car. & P. 373; Clark and Marshall, Law of Crimes (2d ed.), § 198, pp. 273-4.
    Criminal Law, 16 C. J. p. 1180, n. 74; p. 1217, n. 45.
    Juries, 35 C. J'. p. 199, n. 72.
   Broyles, C, J.

1. Under the decision in Pitts v. State, 25 Ga. App. 31 (102 S. E. 381), and the facts of the instant case, the judge, sitting, by consent of both parties, without the intervention of a jury, was authorized to find the accused guilty of the offense of an assault.

2. The motion for a new trial contained the usual general grounds only, and its denial was not error.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17570.
    Butt v. The State.
    Decided November 9, 1926.
    Assault with intent to murder; from Hall superior court — Judge J. B. Jones. June 19, 1926.

      Boyd Sloan, William P. Whelchel, for plaintiff in error.

      Robert McMillan, solicitor-general, contra.
    Criminal Law, 16 C. J. p. 1002, n. 12; p. 1050, n. 84; p. 1056, n. 20; p. 1180, n. 74.
   Broyles, C. J.

1. The excerpt from the charge, complained of in ground 5 of the motion for a new trial, when considered in connection with the entire charge, is not error for any reason assigned.

2. Under the facts of the case the failure of the court to charge the law of admissions and confessions was not error, no written request for such a charge having been presented.

3. The remaining special grounds of the motion for a new trial are without substantial merit.

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

Judgment affirmed.

Luhe, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17571.
    Shensky v. The State.
    Decided November 9, 1926.
    Keeping lewd house; from city court of Savannah — Judge Bourke. June 19, 1926.

      Shelby Myrick, for plaintiff in error.

      Walter O. Ilartridge, solicitor-general, Leo A. Morrissy, contra.
    Criminal Law, 17 C. J. p. 271, n. 41.
    Disorderly Houses, 18 C. J. p. 1271, n. 12.
   Luke, J.

A conviction of keeping a lewd house was authorized by the evidence; and, the only ground of the motion for a new trial insisted upon being that “there is no evidence to sustain the verdict,” the judgment overruling the motion must be

Affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17572.
    Posey v. The State.
    Decided November 9, 1926.
    Rehearing denied December 14, 1926.
    Burglary; from Bibb superior cou,rt — Judge Mathews. June 26, 1926.

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

      Charles H. Garrett, solicitor-general, contra.
    Burglary, 9 C. J. p. 1075, n. 13; p. 1088, n. 34, 35; p. 1090, n. 55 New.
    Criminal Law, 16 C. J. p. 1180, n. 74; 17 C. J. p. 341, n. 84, 88.
   Broyles, O. J.

1. In charging the jury upon the law with reference to the possession of stolen property — the fruits of a burglary — by one accused of the burglary, the judge should use the word “recent,” but the omission to do so is not reversible error where it necessarily appears from the evidence that such possession, if it existed at all, was in fact recent. Young v. State, 95 Ga. 456 (2) (20 S. E. 270).

2. In the light of the facts of the case (the uncontradicted testimony being that the accused voluntarily and freely confessed that he was present and aided in the commission of the burglary) and of the entire charge of the court, no reversible error appears in the excerpt from the charge complained of in the motion for a new trial.

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

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17573.
    LaGrange Lumber & Supply Company v. Farmers & Traders Bank of Atlanta.
    Decided November 9, 1926.
    Complaint; from city court of LaGrange — Judge Tuggle. July 6, 1926.

      E. T. Moon, for plaintiff in error.

      Lovejoy & Mayer, Herbert Haas, contra.
    Appeal and Error, 3 C. J'. p. 314, n. 28; p. 433, n. 7.
   Luke, J.

The writ of error in this case must be dismissed for the reason that the record shows there has been no final termination of the case in the court below.

Writ of error dismissed.

Broyles, G. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17575.
    Waits v. Rice.
    Decided November 9, 1926.
    Complaint; from city court of Atlanta — Judge Beid. May 26, 1926.
    The action was on purchase-money notes of Waits, the defendant, to the plaintiff for a city lot described in the plaintiffs deed to the defendant as “commencing at the northeast corner of York Place and State Street,” and as extending a stated distance “along the north side of York Place,” “York Place being a thirty-foot street,” etc. A plea filed by the defendant alleged that the land was sold to him by the plaintiff according to a plat in which it was similarity described, and that afterwards the plaintiff “sold the property represented by York Place upon said plat; that the-same has been filled up, and that a new street, known as York Place, has been opened up thirty feet from defendant’s lot;” “that he purchased the aforesaid property for business purposes, and was induced to purchase the same by reason of the fact' that it was a corner lot, and therefore suitable for business purposes, and that by reason of the change in York Place the value of the property purchased by this defendant has depreciated to the extent of $1,-000.” The plea concludes as follows: “Defendant files this his plea of a partial failure of consideration to the extent of $1,000, and shows to the court that he is entitled to a deduction of the aforesaid amount of $1,000 as against the purchase-money notes sought to be enforced in this action.”
    The defendant demurred to the plea, on the following grounds: (1) No legal defense is set forth. (2) It is not shown how the purchaser of the property represented by York Place acquired any title superior to the defendant’s title, or acquired any title or right to said street when, as alleged, the plaintiff sold the street. (3) Said answer does not show the description of the property that defendant claims plaintiff sold, or to whom plaintiff sold it, or when he sold it, or who filled up the street, or who opened up the alleged new street. . Defendant ought to show what deed or contract of sale plaintiff made, and ought to describe what he sold, if anything. Defendant fails to show how and in what particular he is damaged by the alleged sale, or that he is damaged by it, or-that he is damaged at all by plaintiff’s alleged conduct. By amendment the plaintiff demurred further as follows: “Plaintiff’s case is a suit ex contractu and the defense set up is a claim founded on an alleged tort, alleged to have been committed after the execution of the notes sued on. The defendant’s answer is not properly a plea of failure of consideration as therein alleged, but is in reality a set-off or recoupment based on an alleged tort, and such damages can not under the law be pleaded against a suit arising ex contractu.”

      Recoupment, Set-Off and Counterclaim, 34 Cyc. p. 704, n. 67, 69.
    Vendor and Purchaser, 39 Cyc. p. 1958, n. 21.
   Broyles, C. J.

Under tlie facts of the case as disclosed by the pleadings, the court properly struck the defendant’s answer on demurrer and rendered judgment in favor of the plaintiff.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.

W. O. Wilson, for plaintiff in error,

cited: 95 Ga. 97; 131 Ga. 489; 55 Ga. 76; 83 Ga. 212; 93 Ga. 765; 134 Ga. 288; 135 Ga. 299; 10 Ga. App. 660; 29 Ga. App. 4; 90 Ga. 416, 427.

Mitchell & Mitchell, contra,

cited: 19 C. J. 932, 935; 143 Ga. 104; 137 Ga. 325; 131 Ga. 489; 146 Ga. 694; 137 Ga. 325; 124 Ga. 929; 116 Ga. 376; 69 Ga. 456; Civil Code (1910), 4198-9, 4214; 59 Ga. 610 (2); 73 Ga. 657; 119 Ga. 926; 114 Ga. 923, and cit.; Park’s Code, § 4340, and cit. under “Ex contractu action;” 90 Ga. 416; 110 Ga. 392; Civil Code, § 4351; 134 Ga. 288, and 10 Ga. App. 660, distinguished.


text:
    17576.
    WITTERN v. HIGH COMPANY.
    The words alleged to have been spoken to the plaintiff by a clerk in the defendant’s store, in an angry tone of voice and in a rough and insulting manner, and to a house detective in her presence, did not charge a crime, and were not slanderous; and no cause of action was stated in the petition.
    Libel'and Slander, 36 O. J. p. 1149, n. 56; p. 1169, n. 92.
    Decided November 9, 1926.
    Action for damages; from Eulton superior court — Judge E. D. Thomas. June 34, 1936.
    Application for certiorari was denied by the Supreme Court.

      Poole & Fraser, for plaintiff.

      A. W. Long, Troutman & Troutman, Roger B. Jones, for defendant.
   Luke, J.

Mrs. Wittern instituted an action against J. M. High Company, a corporation, which maintains a mercantile establishment for the purpose of selling goods, and alleged that while she was in this store for the purpose of making purchases, one of the sales-ladies in the employ of said company opened a box of face cream, and that it spattered out on the dress worn by the petitioner, causing the dress to be covered with greasy spots, and that the said company requested her to leave the said dress so injured at the store for the purpose of removing the spots, that the spots were not removed, and that, as she was directed, she went to Paul Jones, who was an agent of the company and in charge of its business, and told him that the spots had not been removed, and asked him to have them removed; that her request was quiet and polite, and that the said Paul Jones, instead of speaking to her in a quiet, polite, and courteous manner, spoke to her in a very rough and insulting manner, and became very angry, and spoke to her in a loud, angry tone of voice, telling her that there were no spots then on the dress; and that the said Paul Jones called out to Mr. Yic Young, who happened to be near by, in a voice so loud that all persons in the office could hear it, and asked Mr. Young “if he, Mr. Young, ever had anything against this woman before;” that Young was a detective in the employ of the defendant, whose duty was to apprehend shop-lifters, and that there were a number of clerks in the main office at the time Mr.'Young was asked this question, and that the question greatly humiliated and embarrassed her; for which she claimed damages in the sum of $10,000. J. M. High Company demurred to the petition, upon the ground that it set forth no facts which would entitle the plaintiff to recover in any surm The court'sustained the general demurrer and dismissed the petition.

The petition set forth no cause of.action. The words.alleged to have been used were, not slanderous, nor did they charge a crime. There are no facts alleged which would entitle the plaintiff to a judgment against the corporation for the alleged conduct of its agent and servant. This ease may be distinguished from the case of Lemaster v. Millers, 33 Ga. App. 451 (126 S. E. 875), for the reason that in that case it was alleged that the plaintiff, was charged with crime. . .

Judgment affimed.

Broyles, C. J., concurs. Bloodworthy J., absent on account of illness.


text:
    17585.
    HAYNES v. THE STATE.
    The charge of the court on the offense of stabbing was proper, and a conviction of that offense was authorized by the evidence.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Homicide, 30 C. J. p. 318, n. 96.
    Decided November 9, 1926.
    Indictment for assault with intent to murder; from Eulton superior court — Judge Howard. June 20, 1926.

      H. A. Allen, for plaintiff in error.

      John A. Boykin, solicitor-general, J. W. LeCraw, John H. Hudson, contra.
   Broyles, C. J.

The accused was tried for an assault with intent to murder, the indictment charging that the assault consisted of cutting and stabbing with a knife. The judge charged the law of assault with intent to murder, and also the law of stabbing, and a verdict for stabbing was returned. Counsel for the defendant insists that the court erred in instructing the jury upon the subject of stabbing, and that the verdict was not authorized by the evidence. After a careful consideration of the evidence in the record, it is our opinion that the evidence authorized the verdict, and that the court properly charged the law of stabbing.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17589.
    Brown v. The State.
    Criminal Law, 16 O. J. p. 971, n. 64.
    Food, 26 C. J. p. 766, n. 42; p. 780, ri. 99.
   Luke, J.

Wliere, on the triál of one charged with having slaughtered an animal to be used for food for human consumption, which animal showed symptoms of being affected with cancer and other diseases, known to the defendant, the sole defense relied upon by him was that if the animal was diseased as alleged, he did not know it, it was reversible error for the court to fail to submit to the jury this contention. One of the essentials of the crime is knowledge in the person slaughtering the diseased animal for human consumption. Error being' properly assigned upon the failure so to charge, the court erred in overruling and denying the defendant’s motion for a new trial complaining of his conviction. See Parker v. State, 24 Ga. App. 267 (100 S. E. 452).

Decided November 9, 1926.

Unlawful slaughter of cow; from city court of Dublin — Judge Blount presiding. July 12, 1926.

E. L. Stephens, for plaintiff in error.

J. A. Merritt, solicitor, contra.

Judgment reversed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17593.
    Waldrip v. The State.
    Decided November 9, 1926.
    Incest; from Crisp superior court — Judge Crum. July 3, 1926.

      Dorris & Brown, for plaintiff in error.

      J. B. Wall, solicitor-general, Strozier & Gower, contra.
    Criminal Law, 16 C. J. p. 1180, n. 74; p. 1217, n. 45; 17 C. J. p. 271, n. 41.
   Broyles, C. J.

The motion for a new trial contained the usual general grounds only; there was some evidence authorizing the verdict, and, the finding of the jury having been approved by the trial judge, this court is without authority to interfere.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17594.
    COOPER v. THE STATE.
    Evidence as to possession of money in bills identical in denomination with those alleged and proved to have been stolen from a safe, together with other circumstances shown by the evidence, authorized a conviction of larceny from the house.
    Criminal Law, 17 C. J. p. 271, n. 41. .
    Larceny, 36 C. J. p. 907, n. 71, 74; p. 917, n. 4; p. 918, n. 15.
    Decided November 9, 1926.
    Larceny from house; from city court of Nashville — Judge Smith. July 13, 1926.

      W. D. Buie, William Story, Jeff. S. Story, Elsie H. Griner, for plaintiff in error.

      J. H. Gary, solicitor, contra.
   Luke, J.

Cain Cooper was convicted of the offense of larceny from the house. The jury were authorized to believe that Cooper went into the back end of a drug-store, where he could not be seen by those in charge of the store, who were at the time in the front part of the store heard the lock of the iron safe in the back store, his presence being unknown, one of those who were in the front part of the store heard the lock of the iron safe in the back of the store click, and went back into the rear of the store and found Cooper there. Cooper, being the ice-delivery man, inquired as to the ice needs of the drug-store and filled the ice order. Upon his leaving the store the safe was opened (money having' been missed at other times), and it was found upon investigation that $44, which had been placed in the safe but a short time before, was missing. Cooper was arrested and $56 was found in his pocket, and of this amount there were bills identical in denomination with those alleged and proven to have been stolen from the drug-store. While the evidence is circumstantial, the trial judge having approved the verdict, this court can not say there was no evidence upon which to base the verdict.

Judgment affirmed.

Broyles, C. J., concurs. Bloodiuorth, J., absent on account of illness.


text:
    17602.
    CHANDLER v. THE STATE.
    The writ of error will not be dismissed because of violation of the rule of the superior court requiring counsel for the plaintiff in error, on filing the bill of exceptions in a misdemeanor case, to certify that he believes that his client has good grounds for reversal.
    To authorize a conviction of public drunkenness under section 442 of the Renal Code (1910) the drunkenness must have been made manifest by boisterousness, or by indecent condition or acting, or by vulgar, profane, or unbecoming language. The evidence did not authorize a conviction in this case.
    Criminal Law, 17 C. J. p. 194, n. 99 New.
    Drunkards, 19 C. J. p. 798, n. 47, 48, 49, 50; p. 802, n. 17.
    Decided November 9, 1926.
    Drunkenness on highway; from city court of Carrollton — Judge Hood. July 9, 1926.

      S. Holderness, Smith & Millican, for plaintiff in error.

      Emmett Smith, solicitor, contra.
   Broyles, C. J.

1. Hpon the call of this case in this court the defendant in error made a written motion to dismiss the bill of exceptions, on the ground that counsel for the plaintiff in error had failed to comply with rule 60 of the superior courts, established by the superior-court judges in convention at Atlanta on July 2, 1924, and reading as follows: “that upon the filing of a bill of exceptions in a misdemeanor case, counsel for plaintiff in error be required to certify that he verily believes that his client has good grounds for reversal, and that upon an examination of the whole record he does in good faith appeal said case.” A violation of this rule is no cause for a dismissal of the bill of exceptions by this court, and the motion to dismiss is denied.

2. “The public drunkenness punishable by the terms of section 442 of the Penal Code ‘must be made manifest by boisterousness, or by indecent condition or acting, or by vulgar, profane or unbecoming language, or by loud and violent discourse/” Under this ruling and the evidence adduced in the instant case, the conviction of the accused was unauthorized, and the refusal to grant him a new trial was error.

Judgment reversed.

Lulce, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17603.
    Campbell v. Mayor and Aldermen of Savannah.
    Decided November 9, 1926.
    Certiorari; from Chatham superior court — Judge Meldrim. July 6, 1926.

      Robert L. Colding, for plaintiff in error.

      John J. Bouhan, contra.
    Criminal Law, 17 O. J. p. 255, n. 53.
   Broyles, O. J.

The accused was convicted in tlie recorder’s court of Savannah of two offenses, to wit, disorderly conduct consisting of fighting upon a public highway, and disorderly conduct consisting of cursing in the women’s quarters of the police station. She was convicted of both offenses, and separate fines were imposed. She obtained a writ of certiorari, and upon the hearing thereof the certiorari was overruled, and to this judgment she excepted. After a careful review of the record we find no evidence authorizing a conviction upon the first charge, to wit, of fighting upon a public highway. Her conviction of the other offense was authorized.

Judgment reversed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17610.
    Gossett v. The State.
    Decided November 9, 1926.
    Transporting intoxicating liquor; from Rockdale superior court —Judge Hutcheson. June 23, 1926.

      Paul L. Lindsay, for plaintiff in error.

      Claude C. Smith, solicitor-general, contra.
    Criminal Law, 17 C. J. p. 135, n. 28.
   Luke, J.

The plaintiff in error was convicted of violating the prohibition statute, his motion for a new trial was overruled, and he sued out a bill of exceptions, assigning error upon the verdict, as being contrary to evidence, and upon the failure of the court to charge on impeachment of witnesses, but failed to except to the judgment overruling his motion for a new trial. This court, therefore, has no jurisdiction to entertain the ease.

Writ of error dismissed.

Broyles, O. J., concurs. Bloodwortli, J., absent on account of illness.


text:
    17612.
    BOWMAN v. THE STATE.
    A mistrial should have been declared on the motion of the defendant because, after the court, on his trial for selling and possessing whisky, had excluded testimony of an arresting officer that the report which caused the officers to go to the defendant’s home was that he had and was selling whisky; the prosecuting attorney, in his argument to the jury, said: “It is easy for you to infer what the report was that caused the officers to go to the home of this defendant; it was that it was a whisky joint.”
    Criminal Law, 16 C. J. p. 898, n. 97.
    Decided November 9, 1926.
    Possessing intoxicating liquor; from city court of Macon — Judge Hall. July 31, 1926.

      Hunter & Daly, for plaintiff in error.

      Boy W. Moore, solicitor, contra.
   Broyles, C. J.

Tbe defendant was being tried for selling' whisky and having whisky in his possession. The arresting officer testified for the State: “We went to the home of the defendant on account of a report made to us that he had and was selling whisky.” Hpon objection by the defendant the court properly excluded the words “that he had and was selling whisky,” and instructed the jury not to consider this part of the evidence. He left in, however, the rest of the testimony, to wit, “We went to the home of the defendant on account of a report.” Subsequently the attorney for the State, in his argument to the jury, said: “It is easy for you to infer what the report was that caused the officers to go to the home of this defendant; it was that it was a whisky joint.” The court erred in denying the defendant’s timely motion for a mistrial, based upon these improper and prejudicial remarks.

Judgment reversed.

Lulce, J., concurs. Bloodworlh, J., absent on account of illness.


text:
    17616.
    Thurmond v. The State.
    Decided November 9, 1926.
    Transporting intoxicating liquor; from city court of Richmond county — Judge Black. July 22, 1926.

      H. A. Woodward, Hammond & Kennedy, for plaintiff in error.

      W. Inman Gurry, solicitor, contra.
    Criminal Law, 17 C. J. p. 267, n. 93.
   Broyles, C. J.

While the conviction of the accused depended wholly upon circumstantial evidence, the jury were correctly instructed upon the weight to be given such evidence; and, under the facts of the ease, this court can not hold, as a matter of law, that the jury were not authorized to find that the evidence adduced excluded every reasonable hypothesis save that of the defendant’s guilt.

Judgment affirmed.

Luke, J., concurs. Bloodworlh, J., absent on account of illness.


text:
    17624.
    McMillan v. THE STATE.
    The charge that if the defendant had possession of liquor under the advice and prescription of a physician, “that would not authorize him to violate the law,” was not subject to the exceptions taken.
    The alleged newly discovered evidence did not require a new trial.
    Criminal Law, 16 C. J. p. 1049, n. 82; p. 1050, n. 84; p. 1196, n. 37; p. 1206, n. 95.
    Decided November 9, 1926.
    Possessing intoxicating liquor; from city court of Sylvania— Judge Evans. July 26, 1926.

      J. W. Overstreet, H. A. Boylcin, for plaintiff in error.

      J. H. Howard, solicitor, contra.
   Luke, J.

McMillan was convicted of violating the prohibition statute, and in addition to the general grounds of the motion for new trial he assigns error because the court charged the jury as follows: “By consent of both parties, the prosecutor and the defendant, I have been requested to state in substance a conversation I had with Dr. Lewis, inasmuch as Dr. Lewis could not be present this morning. That statement is this: Dr. Lewis came to my office some months ago pending the trial of this case, and made the statement that he had been treating J. L. McMillan’s wife, that her health was bad, and that he had told Mrs. McMillan that if she could get intoxicating liquor she would be benefited by use of it. He further stated that he knew nothing about the particular liquor in question, and the only thing he knew was, he told her that liquor would help her. I charge you, in connection with that statement, that -if you find from the testimony that Mr. McMillan had possession of liquor, and had it under the advice and prescription of a physician, that would not authorize him to violate the law, in other words a man can not, under the advice of anybody else, violate the law. I make this statement, that it has no bearing on this case whatever except as showing Dr. Lewis’ attitude, and I may go further and state that if he advised any one to violate the law, he would be conspiring to violate the law.” The movant insists that this was error for the following reasons: (a) that it is contended by the defendant, as shown by the statement, that he knew nothing about the whisky claimed to have been found in his house at all; that if it was there he knew nothing about it; he stated that his wife, he understood, had some whisky to make camphor, and she missed some of it and some one had it under the house; that the vice of this instruction is that the court should have charged the jury more definitely that if Mrs. McMillan had procured whisky and had the whisky in the house, and it was without the defendant’s knowledge or consent, he would not be guilty of possessing whisky; (&) that the language of the court excluded from the jury the theory of the defense as to whisky found on the defendant’s premises, by stating to the jury that if he had possession of whisky, even though under the advice of a physician, it would still be a violation of law.

Another ground of the motion for a new trial is based on newly discovered evidence. The evidence in this case amply authorized the defendant’s conviction, and, in view of the charge of the court as a whole and the agreement of counsel permitting the court to state the conversation referred to in the charge of the court, and because the alleged newly discovered evidence would not likely produce a different result upon another trial of the case, the motion for new trial was properly overruled.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17625.
    WOODS v. THE STATE.
    The verdict of guilty on the indictment for selling intoxicating liquor was not illegal or repugnant to the verdict of not guilty on the indictment for possessing such liquor, under which' the accused, by his consent, was tried at the same time.
    Criminal Daw, 16 O. J. p. 1180, n. 74; 17 C. J. p. 255, n., 54; p. 363, n. 23.
    Decided November 9, 1926.
    Selling intoxicating liquor; from Eloyd superior court — Judge Maddox. August 2, 1926.

      M. B. Eubanks, for plaintiff in error.

      James F. Kelly, solicitor, M. Neil Andrews, contra.
   Broyles, C. J.

The defendant, by consent, was tried at the same time on • two separate indictments returned on the same date. One indictment charged him with selling intoxicating liquors on July 10, 1926. The other indictment charged him with having alcoholic liquors in his possession on May 10, 1926. Only two witnesses testified. One of them swore that in July, “this month” (the trial was had on July 28, 1926), he bought a pint of whisky from the defendant at his store and paid him $1.25 for it. The other witness testified that “some time last December,” and at another time, he saw the defendant have a small amount of whisky in coca-cola or beer bottles at his store. Both cases were tried together and separate verdicts were returned, the jury returning a verdict of guilty in the “selling” case, and a verdict of not guilty in the “possessing” case.

The verdict of guilty in the “selling” case was not illegal, null and void, or repugnant to the verdict of not guilty in the other case. See, in this connection, Phillips v. State, 27 Ga. App. 1 (107 S. E. 343).

Judgment affirmed.

Luke, J., concurs. Bloodivorth, J., absent on account of illness.


text:
    17629.
    JOHNSON v. THE STATE.
    Refusal to declare a mistrial was error where the prosecuting attorney-asked a witness whether the defendant, who was then on trial for a violation of the prohibition law, had ever before been convicted of a violation of that law, and the witness answered that the defendant had twice been convicted of violating that law, and where the court, without reprimanding the attorney, excluded the question and answer and instructed the jury not to consider them, as the defendant had not put his character in issue.
    Criminal Law, 16 C. J. p. 581, n. 15; p. 919, n. 72.
    Decided November 9, 1926.
    Possessing intoxicating liquor; from city court of Thomasville —Judge MacIntyre. July 10, 1926.
    W. H. Hammond, for plaintiff in error.

      J. Baird Edwards, solicitor, contra.
   Broyles, C. J.

The accused was being tried for a violation of the prohibition law. At the outset of the trial the solicitor of the court asked a witness for the State the following question: “Has this defendant, Nathaniel Johnson, ever been convicted before for violating the prohibition law?” The answer of the witness was: “Yes, he has been convicted twice before this for violating the prohibition law.” Counsel for the defendant immediately objected to the question and answer and moved for a mistrial on the grounds that the evidence was improper, illegal, and prejudicial to the accused, and that by said question and answer the State, had put in issue the defendant’s character, which had not been put in issue by him. The court, without reprimanding the solicitor, excluded the question and answer, and instructed the jury not to consider them, as the defendant had not put his character in issue, and denied the motion for a mistrial. The refusal to grant a mistrial was error, and requires another hearing of the case.

Judgment reversed.

Luke, J., concurs. Blood-worth, J., absent on account of illness.


text:
    17630.
    FLOYD v. THE STATE.
    A conviction of the manufacture of intoxicating liquor was authorized by the evidence.
    Criminal Law, 16 C. J. p. 1180, n. 74; 17 C. J. p. 255, n. 53.
    Intoxicating Liquors, 33 C. J. p. 758, n. 80; p. 761, n. 53.
    Decided November 9, 1926.
    Making liquor; from Houston superior court — Judge Mathews. July 31, 1926.

      Marx Kunz, for plaintiff in error.

      Charles E. Garrett, solicitor-general, contra.
   Luke, J.

Floyd was convicted of violating the prohibition statute. The sole question to be determined is whether the evidence authorized the verdict. The jury had a right to believe from the evidence that the defendant had on his premises, underneath one of his houses, a barrel of fermented beer, and, a short distance away from his house, another ’barrel of fermented beer, together with a part of a still outfit which had been used, and that in addition the defendant stated to the officer who discovered it that the beer was his and that the still was his, and that he had operated the still for the making of whisky. The judge properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworlh, J., absent on account of illness.


text:
    17633.
    Poolas v. The State.
    Decided November 9, 1926.
    Yiolating stamp-tax law; from city court of LaGrange — Judge Tuggle. July 29, 1926.

      Duke Davis, F. P. Longley, for plaintiff in. error.

      L. L. Meadors, solicitor, contra.
    Criminal Law, 17 C. J. p. Z55, n. 53; p. 363, n. 23.
   Broyles, C. J.

The verdict was authorized by the evidence, and none of the grounds of the motion for a new trial require another hearing of the case.

Judgment affirmed.

Lulce, J., eoneurs. Bloodworth, J.; absent on account of illness.


text:
    17638.
    Bailey v. The State.
    Decided November 9, 1926.
    Bastardy; from city court of Newnan — Judge Stallings. August 25, 1926.

      S. H. Dyer, for plaintiff in error.

      Stanford Arnold, solicitor, contra.
    Criminal Law, 16 C. J. p. 1191, n. 7; p. 1193, n. 10; p. 1196, n. 37; p. 1206, n. 95; p. 1230, n. 66; 17 C. J. p. 255, n. 53.
   Broyles, C. J.

1. The alleged newly discovered evidence is not of such a character as would probably produce a different verdict upon another trial. The “newly discovered” witness is a brother of the accused,'lives with him, and was present at the trial of this case. The judge, in passing on the ground of the motion for a new trial based on this alleged newly discovered evidence, was authorized to find that this evidence would have been discovered before the trial if the defendant or his counsel had exercised proper diligence in the premises. Furthermore, the supporting.affidavit of the witness in question is defective, in that it fails to give the names of his associates. See Smith v. State, 34 Ga. App. 172 (1) (128 S. E. 699), and citation.

2. The verdict was authorized by the evidence.

Judgment affirmed.

Luhe, J., concurs. Bloodworth, J., absent on account of illness.