text:
    17189.
    GEORGIA CREOSOTING COMPANY v. FOWLER.
    1. The person upon whom the rule nisi was served exercised large discretionary and supervisory powers, and was an agent of the defendant company, within the meaning of the Civil Code (1910), § 2258.
    2. The excerpt from the charge of the court to which exception was taken was inaccurate, but not cause for reversal, since, under the facts of the case, it is not probable that it was harmful to plaintiff in error.
    3. The evidence was sufficient to support the verdict.
    Appeal and Error, 4 C. J. p. 1029, n. 30.
    Corporations, 14a O. J. p. 807, n. 90 New.
    Decided May 12, 1926.
    Action for damages; from Montgomery superior court—Judge Strange. February 4, 1926.

      M. B. Calhoun, B. D. Header, for plaintiff in error.

      Dallam B. Jackson, L. C. Underwood,, contra.
   Luke, J.

On November' 16, 1923, James Fowler filed his petition against W. C. McCrimmon, to the February term, 1924, of the superior court of Montgomery county, alleging: that he had leased from the defendant, for turpentine purposes, the timber on a described tract of land in said county; that the defendant had cut and removed a large portion of said timber, and had otherwise interfered with the working of it, that the defendant was actually cutting said timber, and that he was insolvent. Petitioner prayed for damages and an injunction. On January 29, 1924, Fowler filed an amendment to his original petition, alleging that the said McCrimmon and the Georgia Creosoting Company, colluding together and for the purpose of defrauding petitioner, did jointly commit the acts alleged in the original petition and others set out by amendment. The prayer was, that Georgia Creosoting Company be made a party defendant in said cause, that a rule nisi issue, and that judgment be had against both defendants. On January 29, 1924, the rule was issued, requiring the Georgia Creosoting Company to show cause on February 4, 1924, at Mt. Vernon, why it should not be made a party defendant, and directing service of “a copy of the foregoing petition and this order” five days before the hearing. On November 8, 1924, an order was passed making said company a party. After being made a party, and on the same day, defendant filed its plea to the jurisdiction, alleging: that it was a corporation; that neither at the time said cause of action arose nor at the time of the filing of said suit, nor at the time of the filing of the amendment seeking to make it a party, did it have an agent, agency, or place of business in Montgomery county; and that at all said times the superior court of Glynn county, and not that of Montgomery county, had jurisdiction of defendant. The jury found a verdict against Georgia Creosoting Company and in favor of McCrimmon, and the plaintiff in error excepted upon the general and several special grounds.

The record neither specifies nor contains any answer of the defendant to the said rule, nor does it show any return of service upon said rule. However, since the court’s order fixed February 4, 1924, as the time of hearing, and stipulated that the rule should be served five days before the hearing, we deem it proper to assume (nothing appearing to the contrary) that service of the rule nisi was had at some time between January 29, 1924, the date of the court’s order, and five days before February 4, 1924. Nor does it appear from the record upon what alleged agent of the defendant service was made, but since the attorneys for both litigants argue the case from the viewpoint that one Eogers was the person in question, we will take it as true that he was the one upon whom service was made.

The first contention of plaintiff in error is that November 8, 1924, the time it was made a party to the cause, should be taken as the date of service of the rule nisi, and that since Eogers swore that he was not then a resident of Montgomery county, and that there was not then any agent, agency, office, or place of business of defendant in said county, there was no service. But, as heretofore shown, the service is presumed to have been made on or about January 31, 1924, and it appears from the testimony of Eogers himself that he resided in Montgomery county from November, 1923, to August, 1924. Hence this contention is without point.

The company’s next contention is that Eogers was a mere employee, and not an agent within the meaning of the Civil Code (1910), § 2258. This position is not supported by the evidence. It is true that Eogers swore that he was merely a timber inspector, and that he worked altogether under the direction of one Oliver, who was the timber buyer for the company, and that after inspecting the McCrimmon timber he procured authority from Oliver, before contracting for the company, to purchase it, yet he further testified that his business was to “look out timber for these camps,” keep them going, and see that those contracting to get out cross-ties for said company were manufacturing the right material; that he had a day to meet each camp and check up on it, and draw drafts to cover pay-rolls, and that he had paid McCrimmon for all cross-ties cut. These drafts were drawn by Rogers on said company, at Brunswick, Georgia. On November 17, 1923, “Georgia Creosoting Company, by G.. C. Rogers,” signed an agreement with Fowler to indemnify him against all loss or damage he might sustain “by reason of said Georgia Creosoting Company, or any one holding or claiming under them,” cutting black pines on or against the turpentine timber leased by Fowler from McCrimmon. On February 5, 1924, the said Rogers answered a garnishment for the defendant. It appears also that at the time the defendant was cutting the McCrimmon timber one Cox was in charge of the camp. Rogers testified that he was supervisor over about fifteen camps in south Georgia, that he had foremen at the said camp, and that he was “over Mr. Cox.”

It is unnecessary to go into the evidence further.to show that Rogers was an agent exercising discretionary and supervisory power, and that service upon him bound his principal. See Central Ga. Power Co. v. Nolen, 143 Ga. 776 (3) (85 S. E. 945); So. Bell Tel. Co. v. Parker, 119 Ga. 721 (47 S. E. 194). The cases of Ga. Ry. & Power Co. v. Head, 150 Ga. 177 (103 S. E. 158), and Smith v. So. Ry. Co., 132 Ga. 57 (63 S. E. 801), holding that the, agent did not come within the purview of the statute, fully sustain the reasoning of the Nolen and Parker cases. The burden of sustaining its plea to the jurisdiction of course rested upon the plaintiff in error. Pyron v. Ruohs, 120 Ga. 1060 (48 S. E. 434). The evidence not only failed to do this, but it disproved the plea.

Whether the allegations of the original petition were sufficient to warrant the making of the Georgia Creosoting Company a party defendant in the case is not a question presented for decision by this record or decided by this court; but see, in this connection, Roberts v. Atlanta Real Estate Co., 118 Ga. 502 (45 S. E. 308).

The other questions presented by the record require no elaboration, and are decided in the headnotes.

Judgment affirmed.

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


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    17190.
    Rucker v. The State.
    Criminal Law, 16 C. J. p. 1049, n. 82; p. 1050, n. 84.
    Indictments and Informations, 31 C. J. p. 863, n. 5 Hew.
    Decided May 12, 1926.
    Conviction oí shooting at another; from Macon superior court —Judge Littlejohn. December 21, 1925.

      Ilomer Beeland, for plaintiff in error.

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

Rucker was indicted for assault with intent to murder, and the jury, as they were authorized to do under the evidence, found the defendant guilty of shooting at another not in his own defense. Grounds 4 and 5 of the amended motion for a new trial, in view of the note of the trial judge, are without merit. The other special assignments of error, when the charge is read in its entirety, are without merit. The charge of the court was adjusted to the issues, and the defendant has had a legal trial, and for no reason pointed out did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodtoorlh, J., concur.


author: Bkotxes, C. J.

text:
    17193.
    Craig et al. v. Taylor.
    Affidavits, 2 C. J. p. 358, n. 34; p. 370, n. 58.
    Certiorari, 11 C. J. p. 212, n. 63.
    Executions, 23 C. J. p. 586, n. 85.
    Decided May 12, 1926.
    Certiorari; from Gordon superior court—Judge Tarver. January 16, 1926.

      J. Roy McGinty, Jesse M. Sellers, for plaintiffs in error.

      O. N. King, contra.
   Bkotxes, C. J.

1. A paper purporting to be an affidavit, but not signed by an affiant, is no affidavit and can not be amended; a judgment based thereon is void, and no execution can legally issue and no levy be legally made. Meadows v. Alexander, 1 Ga. App. 40 (57 S. E. 901).

2. Under the above-stated rulings and the facts of the instant case, there was no ease before the court, and the claimant’s motion to dismiss the levy should have been sustained (Morrison v. Anderson, 111 Ga. 847, 36 S. E. 462) ; the judge of the superior court properly sustained the certiorari, but erred in ordering a new trial. He should have dismissed the case.

Judgment reversed.

Luke and Bloodtoorth, JJ., concur.


author: Bboyles, C. J.

text:
    17196.
    Jones v. City of Atlanta.
    Municipal Corporations, 28 Cyc. p. 1311, n. 21; p. 1466, n. 42.
    Pleading, 31 Cyc. p. 78, n. 95; p. 83, n. 16.
    Decided May 12, 1926.
    Action for damages; from city court of Atlanta—Judge Eeid. January 23, 1926.
    Application for certiorari was denied by the Supreme Court.

      Poole & Fraser, for plaintiff.

      J. L. Mayson, C. 8. Winn, for defendant.
   Bboyles, C. J.

The facts of this case are almost identical with those of Cornelisen v. Atlanta, 19 Ga. App. 436 (91 S. E. 510), and the decision in that case is controlling. The petition, properly construed as a whole and most strongly against the petitioner, clearly shows that tile park in question (Piedmont park) and the bathing lake therein, at the time of the alleged injury sued for, were maintained by the city primarily for the use of the public, and intended as places of resort for pleasure and promotion of health of the public at large, and that any pecuniary profit resulting to the city from the operation of the park or the lake was purely incidental. The court, therefore, properly dismissed the ease, on the demurrer interposed.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17197.
    LOUISVILLE & NASHVILLE RAILROAD CO. v. STALLINGS.
    1. “An omission to instruct the jury on the mathematical process of reducing a given sum payable in the future to its present worth, in the absence of an appropriate request, is not ground for a new trial.”
    2. It can not be said from the facts in this case that the verdict was manifestly the result of prejudice or bias, or other corrupt motive.
    Appeal and Error, 4 C. J. p. 754, n. 86; p. 771, n. 75.
    Damages, 17 C. J. p. 1062, n. 84; p. 1071, n. 70; p. 1091, n. 85.
    Trial, 38 Cyc. p. 1696, n. 64.
    Decided May 12, 1926.
    Action for damages; from city court of Atlanta—Judge Eeid. January 23, 1926.

      Tye, Peeples & Tye, for plaintiff in error.

      Hewlett & Dennis, contra.
   Luke, J.

An engine of the Louisville & Nashville Eailroad Company, on which the plaintiff was fireman, collided with a locomotive of the Western & Atlantic Eailroad near Bolton, Georgia. The plaintiff was injured, and sued both railroad companies for damages. Defendants admitted that the plaintiff had made a ease against them, and that the only matter for determination was the amount of the damages. The jury found a verdict for the plaintiff for $26,171.20. When the defendants’ motion for a new trial came up for final hearing the plaintiff’s attorneys, with the approval of the court, reduced the verdict to $17,500, and the motion for a new trial was overruled.

After instructing the jury how to ascertain the gross amount of money that the defendant would lose by reason of his incapacity to earn money in the future, the court charged as follows: “Then, when you have ascertained that amount, since if the plaintiff recovers he has a right to have the money paid down to him now, it would be your duty to reduce the gross sum to its present cash value, which would be a less sum, and you can do this by any correct method of calculation satisfactory to yourselves, using in the calculation the seven per cent, basis, that being the legal rate of interest in this State.” The exception to this charge was as follows: “Movants contend that the said charge, being unaccompanied by any instruction to the jury that, in arriving at present cash value of the gross sum, there should be a discount of such gross sum at the yearly rate of seven per cent., so that the sum allowed for future loss of earnings would represent such loss as .of the times when such loss would occur, and that the plaintiff would not be allowed the use of the entire sum found during his life and have such sum or portion thereof uneonsumed. at the end of his expectancy of life, was insufficient to guide the jury to a correct conclusion. Movant contends further that the said charge was susceptible of the construction by the jury, and indeed to be construed by the jury, as authorizing the jury to effect the reduction to present cash value by deducting from the gross sum found seven per cent, thereof.”

In the first place, was this charge inherently erroneous, in that it was likely to lead the jury to conclude that the correct answer to the problem presented was the difference between said gross sum and seven per cent, thereof? "We think not. Unquestionably the jury had the right to use “any correct method of calculation satisfactory to themselves;” and, with equal certainty, seven per cent. being the legal rate of interest in this State, calculation on a “seven per cent, basis” was proper. Moreover, the legal rate of interest is fixed at a rate per annum, the calculation of interest over a period of years is usually upon an annual basis, jurors are presumed to be of at least average intelligence, and this court will not assume that the jury was misled by the charge into committing such a palpable blunder. In the ease of Yellow Cab Co. v. Echols, 31 Ga. App. 493, 499 (v) (121 S. E. 247), a charge in almost the exact language of the excerpt complained of was criticised by the plaintiff in error as not being full enough, and as being misleading to the jury; and this court held it was not error. In this connection see So. Ry. Co. v. Wessinger, 32 Ga. App. 559 (124 S. E. 100); Merchants & Miners Transportation Co. v. Corcoran, 4 Ga. App. 670 (c) (62 S. E. 130). “After instructing the jury that if they believe the plaintiff has sustained permanent injuries, they may use the mortality tables to aid in ascertaining his probable length of life, the court should inform the jury how to estimate the damage after ascertaining the expectancy of the plaintiff. But if general instructions are given on the subject of the ascertainment of damages, more specific instructions on the subject, if desired, should be duly requested.” So. Ry. Co. v. O’Bryan, 119 Ga. 147 (4) (45 S. E. 1000). In the case of L. & N. R. Co. v. Trout, 141 Ga. 123 (80 S. E. 623), Justice Evans uses the following language: “Complaint is also made that the court omitted to give in charge to the jury the mathematical process of reducing a sum payable at a future time to its present worth. Jurors are selected from the enlightened and intelligent citizens of the community, and there is no presumption of their inability to solve a mathematical problem of this kind. If a party is distrustful of a jurjr’s ability in this regard, a timely written request, accurately stating the rule, should be made.” There was no error in the charge.

The only other exception was that the verdict was excessive. The evidence is voluminous, and we shall not attempt to state it with any degree of fullness. However, there was evidence to the following effect: Plaintiff was forty-five years of age, and was in sound health prior to the time he was injured. As a fireman he could by working every day earn $190 per month. At times he worked as an extra engineer, and an engineer earned more than a fireman. Sometimes he did not make as much as $100 per month. It was not unusual for him to make as much, as $150 per month. Plaintiffs in error introduced pay-checks covering a period of approximately nineteen and one half months, which indicated that plaintiff’s average earning capacity for that time approximated $143 a month. Since being hurt the defendant had earned as much as $70 a month. The end of the plaintiff’s spine, or coccyx, was broken. About one third of the ligament that connected the lower bone of one of his legs with his knee-cap was severed, the use of the leg being greatly impaired, and the injury to the knee being permanent. The plaintiff suffered severe bruises about his head and body, and had a headache once a day because of his injuries. He suffered intense pain, was very nervous, and his memory was impaired. The jury evidently chose to believe the plaintiff’s version of the affair. This they had a right to do, and this corirt can not say that the verdict was excessive.

Judgment affirmed.

Broyles, C. J., and Bloodworlh, J., concur.


author: Broyles, C. J.

text:
    17199.
    Reflex Ignition Company v. Candler.
    Appeal and Error, 4 O. J. p. 864, n. 34.
    Decided May 12, 1926.
    Complaint; from city court of Decatur—Judge Daley. February 11, 1936.

      A. W. Long, Wright, Oox & Johnson, for plaintiff.

      Candler, Thomson & Hirsch, for defendant.
   Broyles, C. J.

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

Judgment affirmed.

Lulce and Bloodtoorth, JJ., concur.


text:
    17203.
    SHEPHERD v. WIDINCAMP.
    The verdict was authorized by the evidence.
    Appeal and Error, 4 O. J. p. 864, n. 34.
    Trial, 38 Cyc. p. 1518, n. 69.
    Decided May 12, 1926.

      Complaint; from city court of Reidsville—Judge Cowart. January 4, 1926.

      W. T. Burkhalter, for plaintiff.

      J. V. Kelley, E. E. Elders, for defendant.
   Luke, J.

Shepherd instituted a suit on a promissory note. Widincamp filed a plea of non est factum. Upon the issue thus raised the case was tried. The evidence was in conflict, but the-jury had the right to believe Widincamp, whose evidence sustained his plea. The only question raised in the record here is upon the ground that the evidence did not authorize the verdict. The special grounds are but amplification of the general grounds. The trial judge having approved the verdict, and there being evidence to authorize it, the motion for a new trial was properly overruled.

Judgment affirmed.

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


text:
    17204.
    Hogan v. The State.
    Criminal Daw, 17 C. J. p. 147, n. 67 New.
    Decided May 12, 1926.
    Conviction of manufacture of liquor; from Jones superior court —Judge Park. January 6, 1926.

      TS. T. Dumas, J. B. Jaclcson, for plaintiff in error.

      Joseph B. Duke, solicitor-general, contra.
   Broyles, C. J.

It appearing from the bill of exceptions and the record that the defendant’s motion for a new trial was overruled on January 6, 1926, and that the bill of exceptions was presented to the trial judge on February 5, 1926, this court is without jurisdiction to entertain the case.

Writ of error dismissed.

Luiste and Bloodworth, JJ., concwr.


text:
    539.
    MERCER v. THE STATE.
    A conviction of the offense of making intoxicating liquor was authorized.
    Criminal Law, 17 O. J. p. 271, n. 41.
    Decided May 12, 1926.
    Conviction of manufacture of liquor; from Jones superior court —Judge Park. January 29, 1926.

      J. B. Jackson, for plaintiff in error.

      J. B. Duke, solicitor-general, contra.
   Luke, J.

Will Mercer was convicted of violating the prohibition statute, and brings his case to this court for review upon the ground that the evidence did not authorize his conviction. The jury were authorized by the evidence to convict the defendant, and, this conviction having the approval of the trial judge, it was not error to overrule the motion for a new trial.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    17206.
    WATKINS v. THE STATE.
    1. “In misdemeanor cases it is the constant practice to submit to the jury evidence of several misdemeanors of the same character perpetrated by the same person.”
    2. There is positive and direct evidence of the guilt of the accused, and the overruling of the motion for a new trial was not error.
    Criminal Law, 16 C. J. p. 861, n. 25; p. 1180, n. 74.
    Indictments and Informations, 31 C. J. p. 841, n. 4,
    Decided May 12, 1926.
    Conviction of possession of liquor; from Hancock superior court —Judge Park. January 18, 1926.

      John 0. Lewis, for plaintiff in error.

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

Only the first headnote needs elaboration. The motion for a new trial alleges that the court erred in admitting certain evidence, the objection thereto being “that the evidence was illegal for the reason that the witness was being questioned and was testifying to a similar offense committed at a different time from that for which he [the defendant?] was then on trial.” It is well settled that the prosecution is not restricted in its proof to the precise date alleged in the indictment or other criminal accusation, but may prove the commission of the alleged offense-at any time within the statute of limitations. Cook v. State, 33 Ga. App. 571 (127 S. E. 156). “In misdemeanor cases it is the constant practice to submit to the jury evidence of several misdemeanors of the same character perpetrated by the same individuals.” Autrey v. State, 23 Ga. App. 764 (2) (99 S. E. 389). Under the facts of this case, and in the light of the qualifying note of the trial judge, there is no merit in this ground to the motion • for a new trial.

Judgment affirmed.

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


text:
    17207.
    Cohran v. The State.
    Intoxicating Liquors, 33 C. J. p. 765, n. 6 New.
    Decided May 12, 1926.
    Conviction of attempt to sell intoxicating liquor; from Douglas superior court—Judge Irwin. February 2, 1926.

      J. R. Iiuicheson, for plaintiff in error.

      B. 8. Griffith, solicitor-general, contra.
   Broyles, C. J.

The evidence authorized the jury to find the defendant guilty of an attempt to sell whisky in Douglas county, Georgia, within two years of the finding of the indictment.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17209.
    Midds v. The State.
    Motor Vehicles, 28 Cyc. p. 50, n. 58.
    Decided May 12, 1926.
    Accusation of operating automobile at unlawful speed; from city court of Macon—Judge Hall. January 16, 1926.

      W. A. McClellan, for plaintiff in error.

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

This case is here upon the sole assignment of error that the evidence did not authorize the verdict. The defendant’s conviction was amply authorized; indeed the jury could not have returned any other verdict.

Judgment affirmed.

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


text:
    17212.
    Jennings v. Citizens National Bank.
    Partnership, 30 Cyc. p. 612, n. 66, 68.
    Decided May 12, 1926.
    Complaint; from Wilkes superior court—Judge Perryman. February 2, 1926.

      A. W. White, Clement B. Button, for plaintiff in error.

      F. II. Colley, M. L. Fells, contra.
   Luke, J.

1. Where a creditor has been dealing with a partnership and the partnership is dissolved by the retiring of one of the partners, with notice of the dissolution, the continuing partner agreeing to assume the debts of the firm, the retiring partner becomes a surety for his copartner.

(a) If the creditor, without the knowledge and consent of the retiring partner, upon a sufficient consideration, extends the time of payment of the firm’s indebtedness, the retiring partner is released from the indebtedness and the creditor can not hold the retiring partner and his individual assets liable for the payment of the debt. See Preston v. Garrard, 120 Ga. 689 (48 S. E. 118, 102 Am. St. R. 124, 1 Ann. Cas. 724).

(&) Where a creditor of a dissolved firm takes a bill of sale from the continuing partner to the assets of the firm to secure an indorsement on a promissory note which the firm was liable for at the time of dissolution, there is no such extension of the time of payment of the firm’s indebtedness as will release the retiring partner. His risk is not increased, and the taking of such additional security will not be considered a novation of the original contract of endorsement upon the promissory note so secured.

2. The case here for review was in this court heretofore and is reported in 33 Ga. App. 659 (127 S. E. 657). We find no errors committed upon the trial of the case and the evidence amply authorized the judgment complained of. Therefore the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworih, J.-, eoneur.


text:
    17216.
    BUCHANAN v. THE STATE.
    The charge of the court as to the defendant’s statement at the trial was not subject to the exceptions taken.
    The other instructions complained of were not erroneous for any reason assigned.
    A conviction of possessing intoxicating liquor was authorized by the evidence.
    Criminal Law, 16 C. J. p. 849, n. 23; p. 964, n. 31; p. 1021, n. 44; 17 C. J. p. 271, n. 41.
    Decided May 12, 1926.

      Conviction of possession of liquor; from city court of Carrollton —Judge Hood. February 13, 1926.

      Smith & Taylor, for plaintiff in error.

      Emmett Smith, solicitor, contra.
   Bloodworth, J.

1. For no reason did the court err in instructing the jury as set out in the excerpts from the charge embraced in special grounds 1 and 2 of the motion for a new trial. (a) “While the jury may believe the statement of the accused in preference to the evidence, they should do so only in the event that they believe the statement to be the truth of the transaction. A charge to this effect was not erroneous.” McCollough v. State, 10 Ga. App. 403 (4) (73 S. E. 546). (6) “It is not a good assignment of error on a portion of the judge’s charge which states a correct principle of law applicable to the case, that some other correct and appropriate instruction was not given.” Grant v. State, 152 Ga. 252 (109 S. E. 502). See Conley v. State, 21 Ga. App. 134 (94 S. E. 261).

2. The excerpts from the charge embodied in the 3rd and 4th special grounds of the motion are not erroneous for any reason alleged.

3. This is the second appearance of this ease in this court. When it was first here (34 Ga. App. 155, 128 S. E. 686) a new trial was ordered for the reason that the circumstantial evidence was insufficient to establish the defendant’s guilt to the exclusion of every other reasonable hypothesis. On the last trial there was direct and positive evidence that the accused, when the whisky was being removed from the house where he lived, said: “For God’s sake, don’t take all my liquor; leave me a little bit;” If any part of the liquor was in the possession of the defendant he was guilty. This was for determination by the jury. They decided the question in favor of the State, and the verdict has the approval of the judge who tried the case. We can not say that there is no evidence which would authorize the jury to reach the conclusion that the defendant was guilty. In Rogers v. State, 101 Ga. 562 (28 S. E. 978), Justice Cobb said: “Applications for new trials on the ground the verdict of the jury is contrary to evidence are addressed to a sound legal discretion to be exercised by the trial judges. When this discretion has been exercised and the motion for a new trial overruled, this court will not interfere where there is any evidence which would justify the jury in reaching the conclusion which, is set forth in the verdict. While in many cases we would probably not have rendered the verdict returned, .and, if we were authorized to pass upon the case as on appeal, would render here a different judgment, still under the established practice of this court as required by the law of this State, we can not overrule a trial judge, who, fresh from the atmosphere of the trial,, sends to us a record in which he endorses the finding of the jury which tried the case in his presence. This is true even in cases where the evidence might be described as weak, unsatisfactory, and doubtful. The wisdom and discretion of the trial judge is sufficient for us to endorse his judgment in cases of this character.”

Judgment affirmed.

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


author: Broyles, O. J.

text:
    17217.
    Johnson v. The State.
    Criminal Law, 17 C. J. p. 86, n. 34.
    Decided May 12, 1926.
    Conviction of possession of liquor; from city court of Albany— Judge Clayton Jones. January 23, 1926.

      Cowart & Durden, for plaintiff in error.

      B. B. L. Spence Jr., solicitor, contra.
   Broyles, O. J.

1. The exception to a portion of the charge of the court can not be considered, as the exception fails to point out the alleged error therein.

2. The verdict was authorized by the evidence.

Judgment affirmed.

Luke amd Bloodworth, JJ., concur.


author: Ltjke, J.

text:
    17218.
    Terry v. The State.
    Criminal Law, 17 C. J. p. 255, n. 53.
    Decided May 12, 1926.
   Ltjke, J.

The evidence amply authorized the conviction and the special grounds of the motion for a new trial complaining of the court’s rulings in the admission of testimony in one instance and rejecting testimony in the other are wholly without merit. The court properly overruled the motion for a new trial.

Judgment affirmed.

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

Conviction of possession of liquor; from Walton superior court —Judge Fortson. January 22, 1926.

Orrin Roberts, J. TF. LeCraw, for plaintiff in error.

Henry H. West, solicitor-general, contra.


text:
    17223.
    HUMPHREYS v. THE STATE.
    The refusal to grant a continuance on account of the absence of certain witnesses was not an abuse of discretion.
    An assignment of error upon the admission of testimony objected to as being a mere conclusion of the witness should show that no foundation was laid for its admission.
    If a conclusion was stated when the woman alleged to have been assaulted testified that the accused was “trying to force” her to do what he asked her to do, the testimony was not objectionable for that reason, for she had testified to sufficient facts upon which to base the conclusion.
    There was no abuse of discretion by the judge in allowing the solicitor.general to propound leading questions to the State’s witness alleged to have been assaulted by the defendant.
    The verdict, being authorized by evidence and approved by the tidal judge, can not be interfered with by this court.
    Criminal Law, 16 C. J. p. 469, n. 7; p. 470, n. 31; p. 748, n. 49, ¡53; 17 C. J. p. 271, n. 41.
    Witnesses, 40 Oye. p. 2427, n. 27, 28.
    Decided May 12, 1926.
    Assault with intent to rape; from Colquitt superior court— Judge W. E. Thomas. January 22, 1926.
    Application for certiorari was denied by the Supreme Court.

      HeLoache & McDonald, for plaintiff in, error.

      Clifford H. Hay, solicitor-general, James L. Dowling, contra.
   Bloodworth, J.

1. The trial judge did not abuse his discretion in overruling the motion to continue the case on'account of the absence of two witnesses. On the hearing of the motion it was shown that one of the witnesses had moved to Florida, and the State made a counter-showing, in which the other witness swore: “If I had been present in court at the trial of Dan Humphreys he could not have proved by me any of the things he claimed he expected to prove by me. I did not even know Miss Maxie Hancock, and I never heard Dan Humphreys say anything to her or hear her say anything to him. I never saw them together in my life. It is true that, before the trial, Dan Humphreys came to me and offered inducements to testify for him, but the matter he wanted me to swear to was false, and I never promised him .to do it. He knew it was false when he was trying to get me to swear to it.”

2. Granting (but not holding) that when the witness said, “He was trying to force me to do what he had asked me,” she stated a conclusion, when all the evidence is considered it will be found that she had stated sufficient facts upon which to base this conclusion. ■ A nonexpert may give an opinion when the facts upon which it is based are stated. Civil Code (1910), § 5874; Pennington v. Perry, 156 Ga. 105 (9) (118 S. E. 710). Moreover, “the objection to this testimony was that it was a conclusion of the witness. The admission of this testimony was not error for the reason assigned. The assignment of error is not complete. Tt does not assert that no foundation was laid for the conclusion of the witness, nor does it state what foundation, if any, was laid. The conclusion of a nonexpert witness, or his opinion, is admissible when predicated upon facts stated by the witness.” Dean v. Littleton, 161 Ga. 65 (131 S. E. 507).

3. The court is alleged to have erred in allowing the solicitor-general to ask a witness for the State leading questions. “It is within the discretion of the trial judge to permit the solicitor-general to propound leading questions to a witness introduced by the State.” Lyles v. State, 130 Ga. 294 (4) (60 S. E. 578). See Wade v. State, 11 Ga. App. 411 (7) (75 S. E. 494).

4. There was evidence from which the jury would be authorized to reach the verdict rendered by them. Their finding has the approval of the trial judge, and this, court is without authority to interfere.

Judgment affirmed,.

Broyles, O. J., and Lulee, J., concur.


text:
    17227.
    Daniel v. The State.
    Decided May 12, 1926.
    Certiorari; from Fulton superior court—Judge E. D. Thomas. February 2, 1926.
   Bboyles, C. J.

The overruling of the certiorari was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., eoneur.

George G. Finch, Robert E. L. Gone, for plaintiff in error.

Roy. Dorsey, solicitor, John A. Boylcin, solicitor-general, J. W. LeCraw, contra.


text:
    17228.
    Jones v. The State.
    Criminal Law, 17 C. J. p. 271, n. 41.
    Decided May 12, 1926.
    Indictment for assault with intent to murder; from Cobb superior court—Judge Blair. February 8, 1926.

      John T. Dorsey, for plaintiff in error.

      John S. Wood, solicitor-general, contra.
   Luke, J.

The conviction here complained of was fully authorized by the evidence, and the special grounds of the motion for a new trial are without merit. The court properly overruled the motion for a new trial.

Judgment affirmed.

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


author: Bloodwortit, J.

text:
    17229.
    CLARK v. THE STATE.
    1. The judge did not abuse his discretion in requiring the defendant’s counsel, who was addressing the jury, to read the law “to the court in the presence of the jury.”
    2. In a criminal case a charge on the statement of the defendant is not rendered erroneous because the judge told the jury that “it is a question for the jury, in their discretion, to determine what they will do with the defendant’s statement. If they think right and proper to do so, they may believe the defendant’s statement in preference to the sworn testimony in the case, provided they think it is the truth of the transaction.”
    3. The verdict was authorized by the evidence.
    Criminal Law, 16 C. J. p. 849, n. 23; p. 912, n. 89 New; p. 1019, n. 26, 30; 17 C. J. p. 87, n. 44; p. 88, n. 48 New.
    Decided May 12, 1926.
    Possessing intoxicating liquor; from city court of Carrollton— Judge Hood. February 13, 1926.

      Boylcin & Boylcin, for plaintiff in error.

      Emmett Smith, solicitor, contra.
   Bloodwortit, J.

This court is not called upon to consider the first ground of the amendment to the motion for a new trial, because it is not complete within itself. This ground simply alleges that counsel “addressed the jury and stated that he desired to read the case of Buchanan v. State, when the court interrupted counsel and refused to permit him to read the law to the jury.” It will be noted that counsel proposed to read “the case,” the whole case. It was not stated where the Buchanan case could be found, nor is it stated that it was germane to the case on trial. However, in Rogers v. State, 128 Ga. 70 (4) (57 S. E. 229, 10 L. R. A. (N. S.) 999, 119 Am. St. R. 364), Mr. Justice Beck said: “While it is true that, under the practice in this State, counsel are allowed to argue to the jury the law as well as the facts, and should be allowed great latitude in the selection and presentation of those eases which in their judgment will assist the court and jury in a proper application of the law to the case as made by the evidence and the statement of the defendant, it is also true that the court exercises a discretion in such matters which this court will not interfere with, where it is not abused.” In Godwin v. State, 123 Ga. 569 (51 S. E. 598), the first headnote is as follows: “Where, during the argument before the jury in a criminal case, counsel for the accused started to read to the jury from a Supreme Court report of this State, and objection thereto was made by the solicitor, it was not error for the court, while allowing the extract to be read in the presence and hearing of the jury, to require that it be read cto the court/ ” In Solomon v. State, 100 Ga. 81 (25 S. E. 847), it was held: “While it is the right of counsel for the accused in a criminal case to read law to the jury and comment thereon, this court will not control the discretion of the trial judge in refusing to allow counsel to read from a Supreme Court report of this State the facts of a decided case for the purpose of commenting upon and comparing the testimony in that case with the facts of the case on trial.” See Hanley v. State, 128 Ga. 24 (57 S. E. 236); Clark v. State, 8 Ga. App. 757 (2) (70 S. E. 90). Under the principle announced in the foregoing decisions the court did not abuse its discretion in requiring counsel to read the law.to the court in the presence of the jury. See also the amendment, adopted July 2, 1924, to Rule 2 of the rules of the superior court.

The court charged the jury that “The defendant denies that he is guilty. He has made a statement, which he has the right to do under the law. His statement is not made under oath, but by permission of the law, in his own defense, and the law declares that the jury trying the case shall deal with this statement just as they see proper. They may believe it in part or believe it in whole, and reject it in part or reject it in whole. It is a question for the jury, in their discretion, to determine what they will do with the defendant’s statement. If -they think right and proper to do so, they may believe the defendant’s statement in preference to the sworn testimony in the case, provided they think it is the truth of the transaction.” There is no error in this charge. It is not subject to the criticism that “it unduly emphasized the fact that the statement was made by permission of law only; unduly emphasized that the jury must believe it to be the truth of the transaction.” In Mason v. State, 97 Ga. 388 (23 S. E. 831), it was held: “After the court had instructed the jury, with reference to the statement of the accused, in the following words, “To this statement you can give just such credit as you think it is entitled to; you-may believe the whole of it or any part of it; you may reject the whole of it or any part of it; you may go to the extent of believing it in preference to the sworn testimony in the case,’ there was no error in adding the words, ‘provided you believe it to be the truth.’ ” (Italics ours.) See McCullough v. State, 10 Ga. App. 403 (4), 405 (73 S. E. 546); Smith v. State, 27 Ga. App. 641 (109 S. E. 521).

3. While the evidence showed that the premises of the defendant were jointly occupied by him, his daughter, and his son-in-law, Will Pate, the evidence was sufficient to authorize the jury to find that it excluded every reasonable hypothesis except that the accused and Will Pate were both guilty of the offense charged. See Pate v. State, 34 Ga. App. 172 (128 S. E. 819). The case of Toney v. State, 30 Ga. App. 61 (116 S. E. 550), cited by counsel for the plaintiff in error, is distinguished by its particular facts from this case.

Judgment affirmed.

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


text:
    17234.
    Newham v. The State.
    Criminal Law, 17 C. J. p. 212, n. 18.
    Indictments and Informations, 31 C. J. p. 589, n 36.
    Juries, 35 C. J. p. 268, n. 3.
    Decided May 12, 1926.
    Rehearing denied June 14, 1926.
    Involuntary manslaughter; from Jeff: Davis superior court-judge Highsmith. February 12, 1926.

      John Rogers, for plaintiff in error.
    F. B. Gibhs, solicitor-general, contra.
   Broyles, C. J.

1. The accused, John Newham, was indicted for the offense of involuntary manslaughter. He duly filed a plea in abatement to the indictment. The issues raised by the plea were submitted to the court, without the intervention of a jury, upon the following agreed statement of facts. “The grand jury—sitting at the January term, 1925, returned an indictment against John Newham, charging him with the offense of involuntary manslaughter, alleging the offense to have been committed in October, 1924, and when it was returned into court the clerk made an entry of return as of January 20, 1924, whereas as a matter of fact it was returned January 20, 1925, and when the attention of the clerk was called to the fact he had made a mistake in entering it as of January 20, 1924, he changed it so as to make it appear returned as of January 20, 1925.” Reid, that the court did not err in disallowing and overruling the plea.

2. The provision of the statute (Penal Code of 1910, § 827) that, where jurors have been drawn by the ordinary and commissioners, the clerk •of the superior court shall, within five days, issue and deliver to the sheriff, or his deputy, a prsecept containing the names of the persons drawn as jurors, is directory merely, and not mandatory, and a failure of the clerk of the superior court to carry out such provision affords no ground for a challenge to the array of the jurors put upon a defendant in a criminal case. See, in this connection, Bird v. State, 14 Ga. 43, 46, 47; Woolfolk v. State, 85 Ga. 69, 88, 89 (11 S. E. 814) and cit.; Rafe v. State, 20 Ga. 60.

3. When the various exceptions to the charge of the court are considered in the light of the entire charge and the facts of the case, no reversible error appears.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17235.
    HIXON v. THE STATE.
    That the indictment designated the offense as “felony” was no ground for demurrer to an indictment charging the larceny of a hog. It is not the name, but the description of the crime, that characterizes the offense charged.
    The description of the stolen hog as “one white and black spotted sow hog, of the value of thirty dollars, and of the personal goods of” a named person, was not insufficient.
    Indictments and Informations, 31 O. J. p. 669, n. 19, 20.
    Larceny, 36 O. J. p. 823, n. 34.
    Decided May 12, 1926.
    Indictment for larceny of hog; from Houston superior court-judge Mathews. February 34, 1936.

      B. B. Feagin, for plaintiff in error.

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

To charge one, in the body of an indictment, with having committed a felony, and describe the crime as follows: “for that the said Walter Hixon, on the 5th day of November in the year 1935, in the county aforesaid, did then and there unlawfully and with force and arms wrongfully and fraudulently take and carry away, with intent to steal the same, one white and black spotted sow hog, of the value of thirty dollars, and of the personal goods of R. H. Roughton,” will not render the indictment defective because the crime is designated “felony” instead of “hog stealing;” it is not the name, but the description of the crime, which characterizes the offense charged. See Lipham v. State, 125 Ga. 52 (2) (53 S. E. 817, 5 Ann. Cas. 66). Neither is such an indictment,subject to demurrer upon the ground that the description of the animal alleged to have been stolen is insufficient. See Garrett v. State, 21 Ga. App. 801 (95 S. E. 301), and cit. The court properly overruled the demurrer to the indictment.

Judgment affirmed.

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


text:
    17243.
    HALL v. THE STATE.
    Proof that a spoonful of corn whisky was found in the defendant’s residence was sufficient to authorize the verdict of guilty of possessing intoxicating liquor.
    Intoxicating Liquors, 33 C. J. p. 585, n. 92.
    Decided May 12, 1926.

      Conviction of possession of liquor; from city court of Carroll-ton—Judge Hood. February 13, 1926.

      Smith & Millican, for plaintiff in error.

      Emmett Smith, solicitor, contra.
   Bloodworth, J.

The defendant was charged with possessing intoxicating liquor. The undisputed evidence showed that the officers found a jug with a spoonful of corn whisky in it in the residence of the defendant. In his statement the defendant did not deny or make any explanation whatever of his possession of the liquor. Under the ruling in Biddy v. State, 20 Ga. App. 784 (97 S. E. 196), if the defendant knowingly had in his possession in Carroll county any quantity of corn whisky, even a “spoonful,” he would be guilty. See LaCount v. State, 25 Ga. App. 767 (104 S. E. 920).

Judgment affirmed.

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


author: Bbotles, C. J.

text:
    17244.
    Roberts v. The State.
    Criminal Law, 16 C. J. p. 771, n. 26; p. 772, n. 27.
    Decided May 12, 1926.
    Conviction of unlawful sale of seed-cotton; from city court of Danielsville—Judge Murray. February 5, 1926.

      Comers Q. Moore, for plaintiff in error.

      B. Howard Gordon, solicitor, contra.
   Bbotles, C. J.

The accused was convicted of the offense of buying seed-cotton after sunset and before sunrise. The only evidence tending to show his guilt was an alleged confession, not corroborated by any other evidence. It is well-settled law in this State that a confession by the accused is not in itself sufficient to establish the corpus delicti, and that the corpus delicti must be proved before the accused can be lawfully convicted. Davenport v. State, 12 Ga. App. 102, 104 (76 S. E. 756). It follows that the defendant’s conviction was unauthorized, and that the overruling of his motion for a new trial was error.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    17254.
    DINKINS v. THE STATE.
    A conviction of cheating and swindling was not authorized by the evidence in this case.
    False Pretenses, 25 C. J. p. 650, n. 42.
    Decided May 12, 1926.
    Conviction of cheating and swindling; from Peach superior court—Judge Mathews. February 6, 1926.

      Norman E. English,, for plaintiff in error.

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

Dinkins was convicted of the offense of cheating and swindling, upon two separate indictments, and both cases are here upon the sole assignment of error that his conviction was unauthorized by the evidence. The indictment in this case alleged that the defendant collected a subscription from one C. B. Anderson “with intent to deceive and thereby the said W. A. Dinkins did deceive the said C. B. Anderson out of the sum of one dollar.” There is no evidence in the record that C. B. Anderson was defrauded out of any money by the defendant; and his conviction in this case was unauthorized.

Judgment reversed.

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


text:
    17255.
    DINKINS v. THE STATE.
    l’he conviction was authorized by the evidence, and a new trial was properly refused.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided May 12, 1926.
    Rehearing denied June 15, 1926.
    See preceding case for description and counsePs names.
   Luke, J.

Dinkins was convicted of the offense of cheating and

swindling, upon two separate indictments, and both cases are here upon the sole assignment of error that his conviction was unauthorized by the evidence. The conviction in this ease was amply authorized by the evidence; no error of law appears; and the court properly overruled the motion for a new trial.

Judgment affirmed.

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


author: Bloodwobth, J.

text:
    17257.
    Robertson v. The State.
    Criminal Law, 16 C. J. p. 698, n. 88; p. 712, n. 30; p. 714, n. 34.
    Decided May 12, 1926.
    Conviction of manufacture ■ of liquor; from Murray superior court—Judge Tarver. February 20, 1926.

      II. H. Anderson, for plaintiff in error.

      O. G. Pittman, solicitor-general, contra.
   Bloodwobth, J.

The evidence of the accomplice as to the guilt of the accused was direct and positive, and while the evidence of the accomplice must be corroborated, the extent of the corroboration is entirely for the jury. There being some corroborating testimony, this court will not say that the evidence did not authorize the verdict.

Judgment affirmed.

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


author: Beoyles, C. J.

text:
    17261.
    Hutchins v. The State.
    Criminal Law, 17 C. J. p. 147, n. 67 (Anno).
    Decided May 12, 1926.
    Conviction of assault and battery; from Early superior court— Judge Yeomans. January 30, 1926.

      Lowrey Stone, for plaintiff in error.

      B. T. Oasiellow, solicitor-general, B. B. Arnold, E. G. Hill, contra.
   Beoyles, C. J.

It not appearing from the bill of exceptions and the record that the bill of exceptions was presented to the trial judge within 20 days of the judgment excepted to (the overruling of the defendant’s motion for a new trial), this court is without jurisdiction to entertain the case.

Writ of error dismissed.

Luke and Bloodworbh, JJ., concur.


text:
    17262.
    Sewell v. The State.
    Criminal Law, 17 C. J. p. 271, n. 41.
    Decided May 12, 1926.
   Luke, J.

The evidence amply 'authorized the conviction of the accused, and the judge properly overruled' the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworbh, J., concur.

Conviction of’possession of liquor; from Greene superior court —Judge Park. February 3-, 1926.

J. 8. Galloway, Miles IF. Lewis, for plaintiff in error.

Joseph B. Duke, solicitor-general, contra.


author: Bloodworti-i, J.

text:
    17266.
    SANDERS v. THE STATE.
    Failure to charge the law of circumstantial evidence was not error, under the facts of this case.
    Criminal Law, 16 C. J. p. 1059, n. 39.
    Decided May 12, 1926.
    Conviction of cheating and swindling; from Wilkes superior court—Judge Perryman. February 20, 1926.

      W. A. Slaton, for plaintiff in error.

      M. L. Felts, solicitor-general, contra.
   Bloodworti-i, J.

1. The amendment to the motion for a new trial alleges that the evidence showing the intent of the accused to commit the crime charged was circumstantial; that intent was an essential element of the offense, and that for this reason the court erred in failing to' charge the law on circumstantial evidence. There was no request to charge this principle of law. The facts from which the guilt or innocence of the defendant could be drawn were all established by direct proof. In Reddick v. State, 11 Ga. App. 150 (3) (74 S. E. 901), the court said: “When the facts from which the inference of guilt or innocence is to be drawn are all established by direct proof, and only the intent with which the alleged criminal act was committed, or the degree of criminality, must be inferred, the trial judge, in the absence of a timely request, is not required to give in charge to the jury the usual rule applicable to circumstantial evidence, to the effect that if the proved facts are consistent with innocence, the defendant should be acquitted; this for the reason that every one is presumed to intend the natural and legitimate consequences of his acts.” Under this ruling and the facts of the instant case the failure of the court to charge the jury upon the law of circumstantial evidence, in the absence of a timely and appropriate written request, was not error. See McRae v. State, 27 Ga. App. 613 (2), 614 (109 S. E. 688).

2. There is ample evidence to support the verdict.

Judgment affirmed.

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


author: Bboxles, C. J.

text:
    17269.
    Beaver v. The State.
    Criminal Law, 16 C. J. p. 930, n. 93; 17 C. J. p. 271, n. 41.
    Decided May 12, 1926.
    Conviction of driving automobile unlawfully; from Catoosa superior court—Judge Tarver. February 20, 1926.

      Joseph M. Lang, for plaintiff in error.

      C. G. Pittman, solicitor-general, contra.
   Bboxles, C. J.

The verdict was authorized by the evidence. There was an acute conflict between the evidence for the State and the evidence for the accused, but the jury, as they had a right to do, evidently believed the witnesses for the State and discredited the testimony of the witnesses for the defense. The grounds of the amendment to the motion for a new trial show no cause for a reversal of the judgment below overruling the motion.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


text:
    17270.
    Hatcher, alias Middlebrooks, v. The State.
    Criminal Law, 16 C. J. p. 1.049, n. 82; p. 1050, n. 84; 17 C. J. p. 271, n. 41.
    Decided May 12, 1926.
    Conviction of manslaughter; from Bibb superior court—Judge Matliews. March 6, 1926.

      T. A. Wallace, Wallace & Wallace, for plaintiff in error.

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

The defendant was indicted for the offense of murder and was convicted of voluntary manslaughter. The evidence amply authorized the conviction, and the several assignments of error upon the charge of the court are, when the charge is read in its entirety, wholly without merit. The defendant has had a legal trial, and his motion for a new trial was properly overruled.

Judgment affirmed.

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


text:
    17271.
    Gravito v. The State.
    Criminal Daw, 16 C. J. p. 1096, n. 49; p. 1162, n. 37; p. 1228, n. 43; 17 C. J. p. 250, n. 14; p. 271, n. 41; p. 339, n. 60 New.
    Decided May 12, 1926.
    Rehearing denied June 15, 1926.
    Larceny of automobile; from Fulton superior court—Judge Howard. February 36, 1936.
    Application for certiorari was made to the Supreme Court.

      Joe Hill Smith, for plaintiff in error.

      John A. Boylcin, solicitor-general, John 11. Hudson, J. IF. LeGraw, contra.
   Bloodworth, J.

1. Under the qualifying note of the trial judge to the first special ground of the motion for a new trial, this ground is without merit. Indeed, it is but an amplification of the general grounds.

2. The 2d ground of the amendment to the motion complains of'the misconduct of two unnamed jurors during the trial of the case. There was a counter-showing by the State. This ground is disposed of by the following rulings.

{a) “The findings of the trial judge on conflicting affidavits as to alleged misconduct of the jury while considering as to their verdict will, in the absence of abuse of discretion, be upheld by the Supreme Court. Buchanan v. State, 118 Ga. 751 [45 S. E. 607]; King v. State, 119 Ga. 420 [46 S. E. 633]; Sullivan v. State, 121 Ga. 183, 187 [48 S. E. 949]; Desverges v. Goelte, 121 Ga. 65 [48 S. E. 693].” Tolbirt v. State, 124 Ga. 770 (53 S. E. 328).

(6) “In order for the misconduct of a juror during the trial of a criminal ease in which he is engaged to be cause for a new trial, it must affirmatively appear that the accused and his counsel did not know of the misconduct until after the verdict.” Josey v. State, 148 Ga. 468 (96 S. E. 1041).

(c) “If counsel know of misconduct on the part of the jury during the trial, such as conversing with others than members of their body, they should bring the same to the attention of the court, or it will be held to have been waived. They can not take the chances of acquittal, and upon failure make such conduct a ground for new trial.” Lyman v. State, 69 Ga. 404.

3. “The refusal of the court to direct a verdict in a criminal case can not be made the subject-matter of an assignment of error in the reviewing court.” Nalley v. State, 11 Ga. App. 15 (7) (74 S. E. 567).

4. The jury thought that the evidence authorized a verdict of guilty, and so found; the judge who tried the case approved the verdict; and as no error of law was committed on the trial, and there being some evidence authorizing the verdict, this court can not interfere.

Judgment affirmed.

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


text:
    17272.
    Nichols v. The State.
    Appeal and Error, 4 C. J. p. 1023, n. 46.
    Criminal Law, 16 C. J. p. 1049, n. 82; p. 1050, n. 84; p. 1180, n. 74; 17 C. J. p. 339, n. 60 New.
    Homicide, 30 C. J. p. 406, n. 17; p. 408, n. 22.
    Decided May 12, 1926.
    Conviction of manslaughter; from Fulton superior court— Judge Howard. February 13, 1926.
    Application for certiorari was denied by the Supreme Court.

      II. A. Allen, for plaintiff in error.

      John A. Boylcin,,solicitor-general, J. IF. LeCra/w, J. II. Hudson, contra.
   Beoyles, C. J.

1. Upon a trial lor murder, where there is adduced any evidence sufficient to raise a doubt, however slight, as to whether the case is murder or voluntary manslaughter, the court should instruct the jury upon the law of voluntary manslaughter as well as upon the law of murder. Jackson v. State, 76 Ga. 473; Elders v. State, 24 Ga. App. 279 (100 S. E. 781); May v. State, 24 Ga. App. 379 (11), 382 (100 S. E. 797). Under this ruling and the facts of the instant case, the court did not err in charging the law of voluntary manslaughter.

2. The various excerpts from the charge which are complained of do not, when considered in the light of the charge as a whole and the facts of the case, show reversible error.

(a) in view of the verdict returned, any errors in the charge upon the law of murder or upon the subject of malice would be harmless.

3. Under repeated rulings of the Supreme Court and of this court a refusal to direct a verdict in either a civil or a criminal case is never error.

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

Judgment affit'med.

Ltike and Bloodtoorlh, JJ., concur.


author: Pee Cueiam. Luke, J.,

text:
    17277.
    CLIFTON v. THE STATE.
    Criminal Law, 16 C. J. p. 1180, n. 74; 17 C. J. p. 285, n. 4.
    Embezzlement, 20 C. J. p. 158, n. 63; p. 486, n. 60.
   Pee Cueiam.

1. The general demurrer to the indictment was properly overruled.

2. Conceding that the court erred in overruling the special demurrer, it clearly appears from the record that the error was harmless, since the accused was already in possession of the very information called for by the demurrer. See Wrightsville & Tennille R. Co. v. Vaughan, 9 Ga. App. 371 (5) (71 S. E. 691).

3. It appears from the record that the ordinary of Lee county, Georgia, had jurisdiction to appoint the accused guardian for John J. Curry, that tlie verdict was authorized by the evidence, and that none of the grounds of the amendment to the motion for a new trial show cause for a reversal of the judgment overruling the motion.

Decided May 12, 1926.

Indictment for embezzlement; from Sumter superior court— Judge Littlejohn. February 24, 1926.

Application for certiorari was denied by the Supreme Court.

B. B. Forrester, Zach. Childers, Wallis & Fort, for plaintiff in error.

Jule Felton, solicitor-general, E. L. Forrester, contra.

Judgment affirmed.

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

Luke, J.,

dissenting. The indictment in this case alleges that J. D. Clifton, being the duly appointed and acting guardian of one John J. Curry, fraudulently and wilfully converted to his own use $4008.09, the same being money which came into his hands as such guardian, and that defendant failed to pay it to R. R. Green, the present duly appointed and acting guardian of said John J. Curry, after the defendant had been removed from said trust, said R. R. Green having made demand in writing on said J. D. Clifton for the payment of said money due and owing to said John J. Curry, which demand for payment was then and there refused by said J. D. Clifton. Defendant filed a general and special demurrer to the indictment, and exceptions pendente lite to the overruling of the same; and error is assigned thereon. The trial resulted in a conviction. The special demurrer to the indictment sets up that it does not “allege the nature of the guardianship, whether because John J. Curry was an infant or whether said John J. Curry was non compos mentis.” I think the defendant was entitled to know the nature of the trust or guardianship that he was charged with violating. Our law defines various forms of trusts, and since it took a special delegated statute to make a breach of trust a crime, the nature of the trust should be defined 'in an indictment with equal particularity. In an early case, Locke v. State, 3 Ga. 540, the court said: “The requirement of the statute is that the offence must be so plainly stated that the juryman may easily understand its nature. Our construction of this statute is, that the indictment should leave nothing to inference or implication; but that its statements should be so plain that a common man may without doubt or difficulty, from the language used, know what is the charge made-against the accused.” And in Johnson v. State, 90 Ga. 443 (16 S. E. 93), the Supreme Court says that “the rule is applicable to offences of all kinds.”

In my opinion the court erred in overruling the special demurrer, and all proceedings thereafter were nugatory.


author: Bloodworth:, J.

text:
    17278.
    Weaver v. The State.
    Criminal Law, 16 C. J. p. 764, n. 54.
    Intoxicating Liquors, 33 C. J. p. 757, n. 74; p. 758, n. 80.
    Decided May 12, 1926.
    Conviction of making intoxicating liquor; from Walker superior court—Judge Maddox. February 10, 1926.

      Henry & Jackson, for plaintiff in error.

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

The evidence relied upon by the State to show the accused guilty of manufacturing intoxicating liquor was wholly circumstantial and did not exclude every reasonable hypothesis save that of the guilt of the accused. Accordingly the court erred in overruling the motion for a new trial.

Judgment reversed.

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


text:
    17279.
    Meads v. The State.
    Criminal Law, 16 C. J. p. 762-, n. 32.
    Decided May 12, 1926.
    Conviction of possessing liquor; from city court of Sylvania— Judge Evans. February 25, 1926.
    A county policeman testified: that he and other county police went to the home of Jim Meads, the father of the defendant, Twiggs Meads, with a search warrant, because the defendant, who lived with his father, had been reported for handling whisky, and that they found in a trunk in a bedroom upstairs two half-gallon fruit-jars full of “shine” whisky, wrapped separately in newspapers; that the defendant was not at home, but his father was there; that after they got the whisky they went to the home of the defendant’s cousin, Bennie Meads, and on the way met the defendant’s father coming from there; that when they g-ot to the gate at Bennie Meads’ home they inquired for the defendant, and about that time they saw the defendant stooping over, running through the cotton patch back of the house; that he ran into an old pond, and they ran him through bushes and briars and caught him in a field on the other side of the pond, where he tried to conceal himself by lying down in the cotton; and that just before they got to him he raised up and said, “Here I am, come on and get me.”
   Broyles, C. J.

Under the particular facts of the ease the jury were authorized to find that the evidence adduced, although circumstantial, was sufficient to exclude every reasonable hypothesis save that of the defendant’s guilt. The cases cited in the brief of counsel for the plaintiff in error are distinguished by their facts from this case.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

The defendant, in his statement at the trial, said that when the officers came to his house his father came to where he was, at Bennie Meads’ home,' and told him of the finding of the whisky by the officers, and said, “Now you know you are under suspended sentence; you had better keep out of the way until I can go down to Sylvania and see what there is to it;” that ho went out of the back door and started walking across the field, and, on hearing one of the officers say, “Yonder goes the damned son of a bitch,” he started running and tried to keep out of the way, and they overtook him and arrested him, and one of the officers cursed him; that the whisky was not his whisk}', and he did not know whose ii was, and that the room out of which the officers got it was not his room, that his room was on the other side of the stairway. In rebuttal it was testified that there was no cursing, and that nothing was done to frighten or intimidate the defendant.

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

J. H. Howard, solicitor, contra.


text:
    17280.
    Thomas, alias Rome, v. The State.
    Criminal Law, 16 C. J. p. 762, n. 82; 17 ('. .1. p. 88, n. 46,
   Luke, J.

1. The evidence connecting the accused with the offense charged, while circumstantial, was sufficient to authorize the jury to find that it excluded every reasonable hypothesis save that of his guilt.

2. Ground 1 of the amendment to the motion for a new trial, not having been, approved by the trial court, can not be considered by this court. The remaining special grounds of the motion do not require a reversal of the judgment overruling the motion.

Decided May 12, 1926.

Rehearing denied July 13, 1926.

Conviction of assault with intent to murder; from Wilkes superior court—Judge Perrjonan. February 8, 1926.

Hugh E. Gombs, for plaintiff in error.

M. L. Fells, solicitor-general, contra.

Judgment affirmed.

Broyles, O. J., wnd Bloodworth, J., concur.


author: Bloodwoeth, J.

text:
    17283.
    Boyer v. The State.
    Criminal Law, 16 O. J. p. 1180, n. 74.
    Decided May 12, 1926.
    Conviction of larceny after trust; from Laurens superior court —Judge Camp. February 27, 1926.

      J. A. Merritt, for plaintiff in error.

      Fred Xea, solicitor-general, Hightower & Netv-, contra.
   Bloodwoeth, J.

The motion for a new trial in this ease contains the general grounds only. The conviction of the accused was authorized by the evidence, and no error of law is shown to have been committed.

Judgment affii-med.

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


text:
    17284.
    Jackson v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided May 12, 1926.
    Conviction of larceny; from Laurens superior court—Judge Camp. February 27, 1926.

      J. A. Merritt, for plaintiff in error.

      Fred Xea, solicitor-general, contra.
   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 and Bloodworth, JJ., concur.


author: Stephens, J.

text:
    16681.
    Garrett v. Atlanta Home Underwriters, etc.
    Replevin, 34 Cyc. p. 1532, n. 85 New; p. 1563, n. 36.
    Decided May 14, 1926.
    Trover; from Forsyth superior court—Judge Blair. June 27, 1925.

      J. P. Brooke, for plaintiffs in error.

      Underwood, Pomeroy & Haas, E. Smythe Gambrell, contra.
   Stephens, J.

1. In a trover suit, where there is an allegation and proof as to the value of the property, the plaintiff, after the close of the argument and before the case is submitted to the jury, may elect to take a money verdict and the defendant can not complain upon the ground that the election is too late and that he had not been given an opportunity to argue the question of value to the jury. Especially is this true when the defendant made no objection when the election was made. Holland v. Lawrence, 147 Ga. 479 (94 S. E. 561); Young v. Durham, 15 Ga. App. 678 (84 S. E. 165).

2. Where the plaintiff in trover elects to take a money verdict for the value of the property at the date of the conversion, he may.recover in addition thereto a sum representing the hire of the property from the date of the conversion. O’Neill Mfg. Co. v. Woodley, 118 Ga. 114 (44 S. E. 980) ; Bank of Blakely v. Cobb, 5 Ga. App. 289 (63 S. E. 24).

3. The evidence authorized the verdict for the plaintiff; and the court did not err in overruling the defendant's motion for a new trial, after the plaintiff had written off a part of the amount of the verdict.

Judgment affirmed.

Jenldns, P. J., and Bell, J., concur.


author: Bell, J.

text:
    16682.
    BEAVERS v. INMAN et al.

    1. Members of the police committee appointed under the charter and ordinances of the City of Atlanta were not legally disqualified, because of prejudice and bias, to preside in the trial of the chief of police for the alleged violation of a certain ordinance and certain rules of the police department. Beavers v. Armistead, 156 Ga. 833 (5) (120 S. E. 526) ; Anderson v. Howard, 34 Ga. App. 292 (129 8. E. 567).
    2. Whether or not the pendency of other and previous charges alleging the same cause as those preferred in the present case would have constituted ground for abating the later charges (but see Oabaniss v. State, 8 Ga. App. 129 (5), 68 S. E. 849; Hurst v. State, 11 Ga. App. 754, 76 S. E. 78), it appears from the record that the plea in abatement was heard upon its merits, and that under the evidence adduced the committee was authorized to find that the previous charges had been withdrawn and dismissed before the institution of the present proceeding. If the plea should be considered as a plea of former conviction, it affirmatively appears that there was no conviction in the prior proceeding. See Armistead v. Beavers, 32 Qa. App. 464 (124 S. E. 61). The superior court did not err in affirming the committee’s finding against the plea in abatement.

      Certiorari, 11 C. J. p. 204, n. 73.
    Criminal Law, 16 C. J. p. 68, n. 8.
    Municipal Corporations, 28 Cyc. p. 492, n. 9 New.
    Pleading, 31 Oye. p. 329, n. 61.

      3. The rule of the police department of the City of Atlanta providing that the chief of police “will, as often as possible, pay frequent visits at unusual hours to various portions of the city, that he may be able to know, of his own knowledge, that the officers and men are performing their duties,” is too uncertain and indefinite in its terms to be capable of a strict and literal enforcement. It could be upheld (if at all) only as a legislative guide, in the nature of a declaration of policy, to be observed by the officer in the exercise of discretion, with due regard to all the duties devolving upon him. Assuming that under this construction the regulation is valid, there was no evidence showing, or tending to show, that the plaintiff in error violated it, and his conviction on a charge of such violation was illegal.
    4. The superior court erred in not sustaining the certiorari as to such conviction.
    Decided May 14, 1926.
    Certiorari; from Fulton superior court—Judge Bell. April 18, 3935.

      Spence & Spence, for plaintiff in error.

      J. L. May son, J. M. Wood, Q. S. Winn, contra.
   Bell, J.

James L. Beavers, chief of police of the City of Atlanta, was tried by the police committee of the general council of that municipality upon charges preferred by Edward H. Inman, a member of the committee. The accusation was in four counts, styled and set forth as “specifications” 1, 3, 3, and 4. Count 1 charged in general terms the violation of rule 33 of the police department, which provided that the chief of police “will, as often as possible, pay frequent visits at unusual hours to various portions of the city, that he may be able to know, of his own knowledge, that the officers and men are performing their duties.” Count 3 charged the violation of an ordinance which was in language identical with the above. Count 3 alleged the infraction of rule 39 of the police department, which provided that “no member of the detective or police department will be permitted to work divorce cases, nor will any member of the police department knowingly be allowed to work on cases that will lead up to divorce proceedings.” Count 4 averred that the said Beavers as chief of police had falsely made an affidavit that on account of his poverty he was unable to pay the court costs in a named judicial proceeding to which he was a party, and thus had violated a certain rule of the police department, which provided that “members of the police department are required to speak the truth at all times and under all circumstances, whether under oath or otherwise,” and that anyone “who wilfully departs from the truth [is] considered unfit for service.”

The respondent made a motion to disqualify certain members of the committee, demurred generally and specially, and pleaded in abatement, and answered. The motion to disqualify and the demurrers were overruled. The committee tried the issue formed by the plea in abatement and found against the plea. The trial on the merits resulted in the respondent’s conviction of the charges specified as 1, 2, and 4, and in his acquittal of charge number 3. Whereupon the committee ordered his discharge from the police department. By petition for certiorari he excepted to all of the rulings and findings against him. The judge of the superior court set aside the conviction of charge number 4 as being contrary to evidence and without evidence to support it, but affirmed the other rulings and findings of the committee, with the direction that the case be remanded to the committee “to pass such judgment upon their findings as to them should seem meet and proper,” the purpose of which direction was “to allow the committee to reconsider, if it so desires, its judgment, in view of the fact that specification No. 4 is stricken, and, if they see fit, to resentence” the respondent upon specifications 1 and 2, both of the others being then eliminated. The respondent thereupon brought the case to this court for review.

The grounds of the motion to disqualify and the facts touching the plea in abatement are sufficiently indicated in the headnotes. The committee did not err in overruling the motion, nor in finding against the plea, and the superior court committed no error in overruling the certiorari so far as it related to these matters. The special demurrers were to specifications 3 and 4 only, and, in view of the history of the case as to these charges, counsel have not sought any decision by this court in reference to these demurrers. And we will not pass upon the general demurrer. This demurrer having challenged the sufficiency of the accusation as a whole, without reference to any particular count, was properly overruled if any one of the counts alleged cause for the respondent’s discipline or removal. Hence, a determination of the question raised by the general demurrer would involve a decision as to the sufficiency of each separate count of the accusation. Lowe v. Burke, 79 Ga. 164 (2) (3 S. E. 449); Napier v. Union Colton Mills, 93 Ga. 587 (20 S. E. 80); Hudson v. Hudson, 119 Ga. 637 (46 S. E. 874). One of these counts (number 3) was 'eliminated by an acquittal at the hands of the committee, and the conviction on another count (number 4) has been set aside by the judgment of the superior court, and no exceptions to that judgment have been taken by the municipality. Counsel for both sides have treated the case as if these counts were of no concern in the present inquiry. Thus, if we undertook a consideration of the demurrer to the accusation as a whole, we would at once be confronted with questions to which counsel have not even remotely addressed themselves, if not with questions actually moot under the instant writ of error, concerning, as they do, the sufficiency in law of counts 3 and 4. In these circumstances, and especially in view of the opinion which we entertain, and will later express, as to the exceptions to the committee’s ultimate finding and judgment, we make no ruling in reference to the demurrer. This conclusion will be without prejudice, however, and the case will stand without any adjudication on demurrer as to the legal sufficiency of any count or specification of the.accusation.

This brings us to a consideration of the exceptions to the committee’s findings under specifications 1 and 2. Since these counts are in substance the same, one alleging a violation of a rule of the police department and the other a violation of an ordinance which in language was identical with the rule, and since the convictions on -these two charges will, therefore, stand or fall together, we will not hereafter distinguish between the two regulations, but will deal with the case as though it involved a conviction of violating the rule only, what is said both in this opinion and in the head-notes having reference to' the ordinance as well as to the rule.

The petition for certiorari assigned, among other things, (1) that the committee erred in charging respondent as set forth in specifications 1 and 2, and in convicting him oE the offenses therein alleged, “because same did not constitute any offense, for that -said rule was impossible to be complied with in form or letter;” (2) that the committee erred in so convicting him, because “a compliance with said rule, as shown by said rule, was entirely discretionary with the chief,” and it “was not alleged or proved, nor was proof offered, that the chief of police had not exercised the discretion requiring [him] to comply with said rule, and he could not be convicted of a violation thereof without such proof;” and (3) that the conviction under those two specifications was illegal “because there was no evidence to show, or tending to show, that he was guilty of a violation of said rule.”

In our view of the case, it is unnecessary to decide whether all of these exceptions were well taken. To repeat the rule which the respondent was accused of violating, it provides: “He [the chief of police] will, as often as possible, pay frequent visits at unusual hours to various portions of the city, that he may be able to know, of his own knowledge, that the officers and men are performing their duties.” The “officers and men,” of course, are other members of the police department. What is meant by “as often as possible”? What are “frequent visits”? And when is an hour “unusual”? By what standards shall these questions be determined, and who is to determine them? Honest and intelligent men would, no doubt, differ very materially in undertaking to answer them.

It is well settled' that a law which is to be complied with under penalty must “so definitely and certainly define the offense that a person of reasonable understanding can know at the time of the commission of the act that the law is being violated.” “A penal law which is of doubtful construction and in which the act denominated as a crime is described in terms so general and indefinite as to make the question of criminality dependent upon the idiosyncrasies of the men who may happen to constitute the court and jury, and is of such nature that honest and intelligent men are unable to ascertain what particular act it seeks to condemn, is incapable of enforcement, and will be held to be null and void.” Hayes v. State, 11 Ga. App. 371 (2) (75 S. E. 523). We are satisfied that any effort to make a strict and literal application of the regulation here under consideration could result in no other logical conclusion than .that it is too uncertain and indefinite in its terms to be capable of enforcement. See Hale v. State, 21 Ga. App. 658 (94 S. E. 823); Hamilton v. State, 21 Ga. App. 660 (94 S. E. 824); 2 McQuillin on Municipal Corporations, 1414, 1426; 19 R. C. L. 1810, and cases cited.

The rule is not for the general public or a class, however, but applies only to the incumbent of a particular office, and possibly should be upheld as a legislative guide, in the nature of a declaration of policy, to be observed by the officer, not at his own arbitrary will, to be sure, but in the exercise of a wise discretion, with due regard to all the duties devolving upon him. It is only in this view that the regulation can be regarded as valid; and, under the facts of the present record, we may (and do) assume, without deciding, that it is valid even under this construction. To treat the rule, then, as one to be observed in good faith and in the exercise of a proper discretion, the officer could not be convicted of a violation of it, in the absence of proof that he refused to be guided by it or to exercise any discretion under it, or that such discretion as he may have exercised was affected with negligence, incompetence, or bad faith,, and was thus abused. Compare State ex rel. Coleman v. Trinkle, 70 Kan. 396 (78 Pac. 854). There is no evidence in the record, circumstantial or otherwise, showing, or tending to show, either that the respondent failed or refused to exercise the required discretion, or that he in any way abused it.

The scope of the evidence as to time was, by a ruling of the committee, restricted to a period of two years next preceding the trial. It appears that Atlanta --is a large city, occupying several square miles and having some three hundred and fifty officers on its police force. Each of about twenty of these officers testified that he either had not seen the respondent at all on his beat during the period mentioned, or had seen him but once or twice, or very infrequently. With one or two possible exceptions, those who so testified had beats ranging in size respectively from the space, of several blocks to very much larger areas. None of them, of course, were able to testify that the chief had not made tours of inspection and overlooked them when they had not noticed him. He was not required to make his presence known to the other men on these occasions. All the evidence for the prosecution was negative and of the weakest possible character of that class of evidence. Some twenty-five members of the police department, called as witnesses for the respondent, testified to having seen him at various times on their respective beats. The respondent himself testified at length, but in effect, that he had complied with the rule so far as he possibly could in view of the other duties requiring his attention. The other evidence, considered in parts or all together, failed to contradict this statement; that is, there was no evidence showing that the respondent did not visit the “various portions” of the city for the purposes of the rule as often as it was possible for him to do, under the attendant circumstances with respect to his other official obligations. See Neill v. Hill, 32 Ga. App. 381 (2) (123 S. E. 30). Even if the evidence shows that the respondent failed to make the visits as often as it was physically possible to do, it certainly establishes no more, and, as we have said, his conviction could not stand upon this fact alone, especially when, as appears, there were various other duties attached to the office which were to be regarded and weighed as to their importance, in determining what was “possible” under the regulation in question. The proper discharge of all the duties of chief of police of a large city like Atlanta would require some reason and judgment, in the due application of which it would not be necessary for the officer to visit the various portions of the city as often as physically possible, without regard to his other duties, where there is no mandatory and specific regulation so prescribing. As we have endeavored to show, the particular rule here involved is not one of that character. We conclude that the respondent’s conviction of the charges contained in counts 1 and 2 was without any evidence whatever to support it. When the superior court set aside the committee’s finding under count 4, there was nothing (whether there was anything before or not) for the conviction to stand on, and the certiorari ought at the same time to have been sustained as to the conviction of the other charges.

Although in a case like the present this court could not weigh the evidence, it has the power and the duty, under proper exceptions, to order a conviction .set aside, where it is absolutely without evidence to support it. Tibbs v. Atlanta, 125 Ga. 18 (6) (53 S. E. 811); City of Macon v. Anderson, 155 Ga. 607 (117 S. E. 753); Beavers v. Armistead, 156 Ga. 833 (supra). And this is true notwithstanding certain provisions of the city charter to the effect that the board of polioe commissioners (now the police committee) shall establish rules and regulations for the police department on the civil service plan, and that all the officers and employees thereoE shall serve under civil service rules, during good behavior and efficient service, to be finally and exclusively judged of by the board, and that the action of the board in suspending or removing any member of the department for failure to perform his duties shall be final. It appears that the police committee were proceeding under an ordinance which provided as follows: “Neither the chief, assistant chief, captains, or sergeants, shall be removed from office or reduced to ranks, or suspended for a longer time than until the next regular or called meeting of the board without a fair trial by the board of police commissioners after-charges have been preferred and the officer has been given an opportimity to be heard, and then only by a majority of the board and not simply a majority of the quorum present.” Even “where a municipal council had the right to remove a policeman with or without a trial, but proceeded under the latter method, their judgment of removal could be reviewed on certiorari.” City of Atlanta v. Blackman Health Resort, 153 Ga. 499, 509 (113 S. E. 545), citing Asbell v. Brunswick, 80 Ga. 503 (5 S. E. 500).

Being of the opinion that the charges were not sustained by the evidence, we omit to adjudicate a further contention of the plaintiff in error that rule 22 has been repealed or superseded by the adoption of later rules and regulations creating the office of assistant chief of police and the offices of captains and sergeants with duties similar to those referred to in the rule in question.

Judgment reversed.

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


author: Jenkins, R. J.

text:
    16702.
    Giddens v. Rentz et al.

    Appearances, 4 O. J. p. 1335, n. 4-9; p. 1350, n. 26.
    Evidence, 22 (', J. p. 1148. n, 96 Hew,
   Jenkins, R. J.

1. The exception taken to the failure to grant the motion of the plaintiff in trover, made at the trial term, to declare that no case was pending, because it appeared from the entry upon the petition that no service had been made on the defendant, and because the plaintiff had entered a voluntary dismissal of the ease, at the first term, before the filing of the defendant’s answer at that term, was without merit, since the court was fully authorized to find, from the evidence introduced on the hearing of the motion, that the answer was in fact filed at the first term and before such voluntary dismissal by the plaintiff. If the answer was so filed, lack of service was immaterial.

Decided May 14, 1926.

Trover; from city court of Nashville—Judge W. R. Smith. July 10, 1925.

Hendricks & Hendricks, for plaintiif.

Msie Higgs Griner, Jeff. S. Story, for defendants.

2. The record shows that the entry as to the date of the filing of the defendant’s answer, as it appeared at the time of the trial, consisted of three figures, a “1” followed by the figures “2” and “4,” written into each other. The clerk testified, without objection, that the entry as it stood was not his entry, and that his entry appeared to have been “tampered with.” The attorney for the defendants testified positively that the plea was in fact filed on September 4, this date being before the voluntary dismissal of the trover suit by the plaintiff, which latter was on September 11. This latter testimony was objected to on the ground that it sought to attack the official entry of the clerk as to the date of filing. Held: The clerk having testified, without objection, that the entry as then exhibited was not his entry, the evidence offered by this witness could not be taken as intended to impeach the official entry, but, in the absence of the existence of such, under the clerk’s testimony, could only be taken to establish the material fact as to when the plea was in fact filed.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16722.
    Davis v. Tittle & Company.
    Appeal and Error, 4 O. J. p. 952, n. 77 New.
    Bills and Notes, 8 O. J. p.. 1060, n. 38.
    Decided May 14, 1926.
   Stephens, J.

1. Although a juror may have been incompetent, by reason of relationship to the prevailing party, yet where the verdict found was as a matter of law demanded, and was directed by the court, the incompetency of the juror could not have affected the verdict and was harmless, and affords no ground for a new trial. Johnson v. Americus, 46 Ga. 80.

2. This is a suit upon a promissory note, where the execution of the note was admitted, and the only defense interposed was a denial of the required statutory notice for attorney’s fees and a partial payment upon the note. There being no evidence introduced to sustain either of the defenses, and no evidence introduced but the note, a verdict was properly directed for the plaintiff, for the principal and interest of the note.

3. In so far as the judgment may be construed as allowing attorney’s fees, direction is given that the judgment be modified by striking therefrom the part thereof which awards attorney’s fees.

Judgment affirmed, with direction.

Jenldns, P. J., and Bell, J., concur.

Complaint; from city court of Nashville—Judge W. K. Smith. July 19, 1925.

Jeff. S. Story, Elsie Higgs Griner, for plaintiff in error.

W. H. Buie, contra.


text:
    16731.
    Rambo v. Goldin, executor, et al.

    Appeal and Error, 4 O. J. p. 843, n. 65; p. 862, n. 26.
    Courts, 15 C. J. p. 1039, n. 54.
    Decided May 14, 1926.
    Complaint; from Haralson superior court—Judge Irwin. June 27, 1925.

      Lloyd Thomas, for plaintiff in error.

      Griffith & Matthews, contra.
   Jenkins, R. J.

1. “This court, by the constitutional amendment creating it, is limited in jurisdiction to the correction of errors of law alone, and therefore has no power to grant a new trial on the ground that the verdict is strongly contrary to the weight of the evidence, if there is any evidence at all to support it.” Edge v. Thomas, 9 Ga. App. 559 (71 S. E. 875). The constitutional amendment of 1916 in no wise changed this rule.

2. The defendant swore positively to a state of facts which, if believed by the jury, would authorize a verdict in his favor. This court can not say as a matter of law that his evidence, taken as a whole and construed most strongly against him, had no probative value in establishing his defense. It is true that he acknowledged writing the letters put in evidence by the plaintiff, but he gave as an explanation, not inconsistent with their contents, that they pertained to a different transaction, and the evidence of the plaintiff himself showed that there were other transactions of similar nature. It is also true that on cross-examination the defendant, when questioned about the relative dates, nine or ten years in the past, of the note sued on and the policy involved, testified that he “did not think” a certain state of facts relative to the respective dates of the two instruments was correct, but the quoted phrase did not change the character of his evidence from that of testimony as to a matter'of fact, but only implied a state of impaired memory as to the transaction, such as would affect only its probative value. The same is true as to his testimony on cross-examination relative to later admissions, when he stated that he did not remember having made certain statements inquired about. See, in this connection, Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 752 (7) (12 S. E. 18).

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16765.
    Harris v. Hines, administrator.
    Affidavits, 2 C. J. p. 36(1, n. 9.
    Appeal and Error, 4 C. J. p. 649, n. 35; p. 1000, n. 23.
    Arrest, 5 C. J. p. 476, n. 70 New; p. 514, n. 48; p. 520, n. 18 New; p. 521, n. 34 Now.
    Replevin, 34 Cye. p. 14 72, n. 91.
   Stephens, J.

1. Where a defendant in a bail and trover proceeding petitions the court for a discharge, as provided in section 5154 of the Civil Code (1910), and the respondent fails to file a written answer to the petition, the respondent is not to be considered as in default, but may appear and introduce evidence in rebuttal of that offered by the petitioner.

2. In a trover suit the following description of the property sued for is sufficient to identify the property: “One-half peck of silver money in 100, 250, 500 and $1.00 denominations, and a large amount of paper currency, lawful money of the United States of the denominations of $1.00 and $5.00, all of which, both silver and currency, being contained in a certain small sack of bedticking, being the same sack in which Carter Cogman carried his money and in which he kept it; all of which money, while contained in said sack, was delivered to the defendant Luke Harris by Carter Cogman about four weeks before his death to keep for him, the said Cogman, and which bag of money the said defendant accepted from the said Carter Cogman to keep for him.” This ruling is distinguishable from the rulings in Harper v. Jeffers, 139 Ga. 756 (78 S. E. 172), and McElhannon v. Farmers Alliance Co., 95 Ga. 670, 674 (22 S. E. 686). The petition for discharge, therefore, was not subject to dismissal upon the ground of insufficiency of description in the petition in the trover suit.

3. The nature of the original affidavit as the basis for bail, and not an inaccurate copy of this affidavit served upon the defendant in trover, should be looked to in determining the validity of the affidavit for bail. The attestation of the original affidavit by “H. C. Walker, C. S. C. Putnam County, Ga.” purports to be an attestation by H. C. Walker, clerk of the superior court of Putnam county, Georgia, an. officer authorized to attest affidavits. The affidavit is therefore prima facie valid.

4. In a petition for discharge by the defendant in trover, who is under arrest for failure to produce the property or to give bond therefor, where in his petition for discharge he recites the institution of the trover suit, the requirement as to bail, and his arrest and imprisonment for failure to produce the property, it is immaterial that there nowhere appears an entry by the sheriff of service upon the petitioner, as the defendant in trover, of the petition and process in trover, or of the application for bail, or other service.

5. Certain evidence as to declarations made by the intestate oE the plaintiff in trover, which were admitted in evidence over the objection of the petitioner, was harmless to the petitioner where, in the written finding and judgment of the court who acted as the trior of the facts, such evidence was disregarded and not considered.

6. The evidence authorized the finding that the petitioner had in his custody or could produce the property sued for in trover, and the court did not err in remanding the petitioner to custody and refusing his discharge.

Decided May 14, 1926.

Trover; petition for discharge; from Putnam superior court-judge Park. August 1, 1925.

17. T. Davidson, for plaintiff in error.

Sibley & Sibley, Allen & Pottle, and M. P. Adams, contra.

7. Since there was no error and the judgment should be affirmed, the motion of the defendant in error to dismiss the bill of exceptions, on the ground that by a subsequent release from custody of the petitioner this case has become moot, will not be passed upon.

Judgment affirmed.

Jenldns, P. J., and Bell, J., eoneur.