author: Bloodavortii, J.

text:
    16147.
    FADER v. THE STATE.
    1. There is no merit in the grounds of the motion for a new trial which allege error in the exclusion or admission of evidence.
    2. Where the evidence in a criminal case demands a verdict of guilty, the fact that the defendant was improperly deprived of the right to open and close the argument will not necessitate a new trial.
    3. The evidence demanded the verdict, finding the accused guilty of possessing intoxicating liquor.
    Decided March 27, 1925.
    Conviction of possession of liquor; from Glynn superior court— Judge Iliglismith. November 29, 1924.

      J. T. Colson, for plaintiff in error.
    TF. B. Gibbs, solicitor-general, Alvin Y. Sellers, contra.
   Bloodavortii, J.

We Avill elaborate the second headnote only. One of the grounds of the motion for a neAV trial is as follotvs: “Because, after both sides had closed, the court erred in allowing counsel for the State to make the opening and concluding arguments before the court and jury in said case, over the objection of movant, movant then and there having urged the following grounds of objection, to wit: that the only testimony offered by the defendant Avas by the court, on motion of counsel for the State, excluded from the consideration of the jury; that the defendant had introduced no testimony, but on the other hand had offered to introduce certain testimony Avhicli the court would not allow to go to the jury; that the defendant, having introduced no testimony, Avas therefore entitled to the opening and concluding argument before the court and jury; Aidiich objection the court then and there' overruled.” To this ground the trial judge attached the following' note: “The defendant put in evidence the evidence set out in ground 4. At the conclusion of the testimony of the Avitness the State moved tó exclude the evidence, and the motion was sustained.” In Haywood v. State, 14 Ga. App. 114 (80 S. E. 213), this court’ held: “Where in a criminal case the accused introduces no testimony, Ms counsel is entitled to open and conclude the argument to the jury. This rule is not varied by reason of his mere offer of testimony which is rejected by the court.” Although in that decision the words “mere offer of testimony” were used, the original record in the office of the clerk of this court shows that the defendant introduced certain evidence which was, on motion of counsel for the State, excluded; so the rule in the Haywood case controls in this case, and the court erred in refusing to allow the attorney for the defendant to open and conclude the argument. Counsel for the State cites Freeney v. State, 129 Ga. 760 (4) (59 S. E. 788), and Daniels v. State, 8 Ga. App. 469 (4) (69 S. E. 588), as supporting the ruling of the court in this case; but in each of those cases the defendant, after introducing evidence, sought to withdraw it and thus gain the opening and conclusion. In the case we are now considering and in the Haywood case the evidence was ruled out by the court against the insistence of the defendant, and this accounts for the difference in the rulings. In Sayden v. State, 78 Ga. 106 (4), the Supreme Court said: “It is true that the making of a statement by the defendant, where he introduces no other evidence, entitles him to conclude the argument in the case, and that this is an important right, and its denial will generally cause a reversal of the decision of the lower court. Chapman, next friend, vs. Atlanta and West Point Railroad, 74 Ga. 547; Phelps v. Thurman, Id. 837. We hold that the presumption arising from the denial of the right is that the party thus deprived of it has been injured. These several rulings are now approved as perfectly correct, both as general propositions as applicable to the facts of the cases in which they were made; but the presumption in the one case, and the effect declared in the other, are not of such universal application as to admit neither of exception nor of qualification, when compared with other rules regulating the grant of a new trial, or when there are facts in the case absolutely inconsistent with the presumption arising ordinarily from withholding the conclusion. The presumption is not of such a conclusive nature and tendency as to work an estoppel; it is, at most, a disputable presumption, which may be overcome by proof, and here it was overthrown by the most convincing and irrefragable proof, viz. the admission of the defendant that he did open his tippling-house on Sunday and furnish, for a consideration of money then paid, a bottle of liquor upon an occasion for an alleged cause which we have shown would neither justify nor excuse, the act. We are of opinion that the verdict was demanded by the evidence, and that another hearing, if the law be regarded, would result in the same way; and where this is the case, as has been frequently held, the new trial will be refused.55

The evidence in this case shows that the defendant had been living in a certain house for a year or two, and that while he was there sick in bed the officer found under this house a pipe some two inches in diameter, running up through a brick “pillow.” “The lower end of the pipe was connected to a sixty-gallon barrel. The barrel was buried in the ground.55 The officers dug it out. “It contained nearly sixty gallons of ‘’moonshine5 whisky. The upper end of the pipe stopped just under the dining-room floor, and was covered with a cap that screwed on and off. The dining-room floor was covered with a linoleum rug. Near the middle of the room and under the rug a small hole was cut through the floor just above the top of the pipe. There was a piece of wood that just fitted into the hole in the floor.. By the use of a pump whisky could have been pumped up through the pipe from the barrel.55 A witness swore that after the officers had found the sixty-gallon barrel under the house, he went in the room where the defendant was and told him of the discovery, and the accused said: “Yes,. it5s full. You are going to have a hard time getting it out.55 This was not denied by the accused. In Hagar v. State, 71 Ga. 164, Chief Justice Jackson, after citing several cases, said (p. 168) : “The above cases show a strong current of opinions against new trials where the verdict is right, though error may have been committed by the court.55

As the evidence in this case demanded the verdict rendered, the judgment is

Affirmed.

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


source: Caselaw Access Project

author: Bboyles, C. J.

license: Public Domain

text:
    16153.
    Hanson v. The State.
    Decided March 27, 1925.
   Bboyles, C. J.

The evidence authorized the verdict, and there is no merit in any of the special grounds of the motion for a new trial.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.

Conviction of possessing liquor; from city court of LaGrange— Judge Duke Davis. November 30, 1934,

M. U. Mooty, for plaintiff in error.

L. L. Meadors, solicitor, contra.


author: Bloodwortii, J.

text:
    16163.
    Gray v. The State.
    Decided March 27, 1925.
    Indictment for adultery and fornication; from Catoosa superior court—Judge Tarver. October 35, 1934.

      McClure & McClure, Sam E. Seymour, for plaintiff in error.
   Bloodwortii, J.

1. Grounds 1 and 2 of the amendment to the motion for a new trial complain'of the admission of certain evidence over the objection of the defendant. What objections were made does not appear. It has been frequently held by the appellate courts of this State that a ground of a motion for new trial based upon the admission of evidence should state the objection made to the evidence, and that such objection was urged at the time the evidence was offered; otherwise no question is raised for determination. Boatright v. State, 30 Ga. App. 10 (110 S. E. 557), and cases cited; Langston v. State, 153 Ga. 127 (1) (111 S. E. 561).

2. Under the foregoing ruling the court did not err in refusing to rule out the evidence incorporated in each of the other special grounds of the motion.

3. A verdict approved by the trial judge will not be disturbed by this court because of alleged insufficiency of evidence, when supported by any evidence.

Judgment affirmed.

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


text:
    16164.
    Heck v. The State.
    Decided March 27, 1925.
    Indictment for adultery and fornication; from Catoosa superior court—Judge Tarver. October 35, 1934.

      Sam E. Seymour, McClure & McClure, for plaintiff in error.
   Bloodwortii, J.

This is a companion ease to that of Gray v. State, ante, 596. The eases were tried together; the grounds of the motion for new trial in each are identical, and the rulings in that case are controlling in this.

Judgment affirmed.

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


author: Broyles, C. J.

text:
    16165.
    Heard v. The State.
    Decided March 27, 1925.
    Indictment for assault with intent to murder; from Fulton superior court—Judge Howard. December 6, 1924.

      Benjamin H. Hill, for plaintiff in error.

      John A. Boykin, solicitor-general, Ralph II. Pharr, contra.
   Broyles, C. J.

1. A motion for a new trial based upon alleged newly discovered evidence is fatally defective unless accompanied by an affidavit of the movant that he “did not know of the existence of such evidence before the trial, and that the same could not have been discovered by tlie exercise of ordinary diligence.” Civil Code (1910), § 6086. The court therefore did not err in overruling the ground based upon sueli evidence.

2. The other special grounds of the motion for a new trial, complaining of rulings upon the admissibility of evidence, but not showing that objection to it was made at the trial, are too incomplete to he considered by this court.

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

Judgment affirmed.

Luhe and Bloodworlh, JJ., concur.


author: Broyles, O. J.

text:
    16169.
    Cooley Furniture Company v. State of Georgia et al.

    Decided March 27, 1925.
    Confiscation of automobile; from Gwinnett superior court— Judge Bussell. December 10, 1924.

      0. A. Nix, for plaintiff in error.

      Pemberton Cooley, solicitor-general, contra.
   Broyles, O. J.

The verdict was amply authorized by the evidence and neither ground of the amendment to the motion for a new trial shows reversible error.

Judgment affirmed.

Luhe and Bloodworlh, JJ., concur.


author: Duke, J.

text:
    16173.
    Carney v. The State.
    Decided March 27, 1925.
   Duke, J.

The evidence upon which the accused was convicted of manufacturing intoxicating liquor is wholly circumstantial, and not sufficient to exclude every reasonable hypothesis other than that of his guilt. It was therefore error to overrule his motion for a new trial.

Judgment reversed.

Broyles, O. J., and Bloodworlh, J., concur.

Conviction of manufacture of liquor; from Floyd superior court —Judge Wright. December 17, 1924.

From the evidence it appears that the defendant M. L. Carney and his son (jointly indicted) owned land divided by a public road, on one side of which were the defendant’s farm and residence, and on the other side their blacksmith shop and unfenced woods which ran up on the side of a mountain; and that in these woods officers found a hot still and the apparatus pertaining to it and about 900 or 1000 gallons of fermenting beer at a distance variously estimated at from a fourth to three fourths of a mile from the blacksmith shop. The shop was on the public road and about 50 or 75 yards from the defendant’s residence. Neither the shop nor the residence could be seen from the still. There was no cultivation or fencing near the still. It was testified that a pathway led directly from the still to the blacksmith shop and went by the shop “across to the house.” Oiie of the officers testified that this pathway was the only evidence of travel leading away from the still, except little paths out to the woods, one of which led to where wood had been cut and an ax and hidden tools were found. Other witnesses testified that there were trails which connected with the above-mentioned pathway and with an abandoned mine in the woods and an old wood road which was frequently used, and a trail across the mountain, and that anybody traveling the public road might have turned off and gone to the still. No search for liquor was made on the defendant’s premises at his home, except in an outhouse, and none was found there. It was testified that he was sick at the time; but the evidence as to this was contradictory. Other stills had previously been found in the woods in the same neighborhood. There were other houses in the locality.

Denny & Wright, for plaintiff in error.

J. F. Kelly, solicilor-general, F. 8. Taylor, M. N. Anderson, contra.


author: Bloodwoeth, J.

text:
    16174.
    Walker v. The State.
   Bloodwoeth, J.

1. The court having charged the jury that, “to warrant a conviction on circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other hypothesis save that of the guilt of the accused” (Penal Code of 1910, § 1010), it was not necessary to give this instruction again in connection with the instruction, given in another part of the charge of the court, that if, upon a consideration of the case, the jury believed beyond a reasonable doubt that the defendant was guilty, it was their duty to find him guilty. There is no merit in the ground of the motion for a new trial in which it is contended that the former instruction should have been given in immediate connection with the latter for the reason that, “the State having to rely in this case entirely upon circumstantial evidence for a conviction, the charge should not have been so far as to overshadow, minimize, or distract from the attention of the jury the rule of law applicable to circumstantial evidence.” See Buckhanon v. State, 151 Ga. 827 (4) (108 S. E. 209); McNaughton v. State, 136 Ga. 612 (2) (71 S. E. 1038); Knight v. State, 148 Ga. 41 (5) (95 S. E. 679); Copeland v. State, 33 Ga. App. 150 (2) (125 S. E. 781).

Decided March 27, 1925.

Indictment for larceny of hogs; from Atkinson superior court— Judge Graham presiding. October 18, 1924.

R. A. Hendricks, for plaintiff in error.

2. In Buchanan v. State, 118 Ga. 751 (45 S. E. 607), the court said: “Where a ground of a motion for a new trial complained that a member of the jury which convicted the accused was related by consanguinity to the prosecutrix within the prohibited degrees, which fact had been discovered by the accused since the trial, and upon the hearing of the motion affidavits were introduced to support this ground, and the State introduced affidavits to the effect that no such relationship existed, this court will not interfere with a finding by the trial judge, upon the issue of fact thus made,'adverse to the contention of the accused.” The facts in the case under consideration are so very much like those in the ease cited that the ruling therein is controlling on this point.

3. This court can not say, as a matter of law, that there is no evidence to support the finding of the jury; and as the verdict has the approval of the trial judge and no error of law was committed on the trial, this court is powerless to interfere.

Judgment affirmed.

Broyles, C. J., and Luke, J., eonatvr.


author: Luke, J.

text:
    16183.
    Callaway v. The State.
    Decided March 27, 1925.
   Luke, J.

This court can’ not say that the verdict finding the accused guilty of burglary is without evidence to support it, and, the trial judge having approved it in overruling the motion for a new trial, which was based on the usual general grounds only, the judgment must be

Affirmed.

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

Conviction of burglary; from Wilkes superior court—Judge Shurley. December 8, 1924.

Hugh H. Combs, for plaintiff in error.

M. L. Fel{s, solicitor-general, contra.


text:
    16185.
    Tiller v. The State.
    Decided March 27, 1925.
    Indictment for drunkenness on highway; from Wilkes superior court—Judge Shurley. November 29, 1924.

      Hugh H. Combs, for plaintiff in error.

      M. L. Fells, solicitor-general, contra.
   Broyles, O. J.

The verdict was authorized by the evidence, and the alleged error in admitting certain testimony, elicited on cross-examination of a witness for the defendant, does not require a new trial, under all the facts of the ease.

Judgment affirmed.

Luke and Bloodworih, JJ., concur.


author: Bloodworth, J.

text:
    16206.
    HENNON v. THE STATE.
    1. “Bias or prejudice on the part of the judge does not disqualify him, in the absence of a statutory provision on the subject.”
    2. In view of the entire charge of the court, a new trial is not required because of failure to give the instructions requested, or because of those parts of the charge to which exception was taken.
    3. There is some evidence to support the finding of the jury.
    Decided March 27, 1925.
    Accusation of possession and sale of liquor; from city court of Eloyd county—Judge Bale. December 30, 1924.
    Application for certiorari was made to the Supreme Court.
    The defendant was charged with having in his possession and with selling intoxicating liquor. He filed the following special plea:. “And now comes the defendant in the above-stated ■ case, and before pleading to the merits thereof, and filéd this his special plea, and for grounds thereof says, that his Honorable Judge John W. Bale, judge of the city court of Eloyd county, Georgia, is disqualified, and from acting as judge in the trial of said case, in that his honor, the said John W. Bale, was instrumental in bringing about the prosecution of defendant in said case, and did instigate, bring about, assist and procuring, and did help procure the services of one Charlie Deck, for the purpose of securing evidence against, parties engaged in the possessing and selling of intoxicating liquors; that upon the services of said Charlie Deck being finally so secured, that the said Charlie Deck contends that he did come to Rome, and, acting as a decoy and a detective, did persuade, deceive, and fraudulently induce said defendant to furnish and sell him, the said Charlie Deck, intoxicating liquors; that the State of Georgia, upon such testimony and contentions of the said Charlie Deck, alleges and contends that the defendant is guilty of the offense charged; that the defendant joins issue with the State on said charge, and says that each and every allegation as to defendant being guilty of either selling or possessing liquor is false, and not the truth; that said issue is t'o be tried and decided by the court and jury; that the liberty and rights of defendant as a citizen of Georgia is at issue, and the final outcome of the issue and the judgment to be pronounced in said case is of vital interest to defendant. Defendant says that because of the assistance to the State of Georgia, in the securing and procuring of said detective, and because of the interest that his honor has manifested in securing said detective to come to Rome and secure evidence against persons alleged to be engaged in the business of selling and possessing liquor, and the securing of said alleged evidence by said detective renders his honor, John W. Bale, disqualified to try defendant for said alleged offense, because said acts of said judge in fact amounts to the rendering of said judge a prosecutor in said case.” This plea was dismissed on oral demurrer. To this ruling-exceptions pendente lite were filed. The case then proceeded to trial; the jury returned a verdict of guilty; the defendant filed a motion for a new trial, which was overruled, and he excepted.

      Porter & Mebane, for plaintiff in error.

      Alec Harris, solicitor, contra. ■
   Bloodworth, J.

(After -stating the foregoing facts.) Only the first headnote will be discussed. Did the court err in striking the special plea? In Long v. State, 25 Ga. App. 22 (1) (102 S. E. 359), this court (citing 17 Am. & Eng. Enc. of Law, 738; 23 Cyc. 582; Elliott v. Hipp, 134 Ga. 848, 68 S. E. 736, 137 Am. St. R. 272, 20 Ann. Cas. 423) held: “Bias or prejudice on the part of a judge does not disqualify him, in the absence of a statutory provision on the subject.” In Luke v. Batts, 11 Ga. App. 783 (3) (76 S. E, 165), this court held that “the statutory grounds of the disqualification of a judicial officer, as contained in the Civil Code, § 4642, are exhaustive.” There is nothing in the special plea which shows that Judge Bale came within any of these statutory provisions relating'to disqualification. Therefore the court did not err in striking the special plea.

Judgment affirmed.

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


text:
    16208.
    Brice v. The State.
    Decided March 27, 1925.
    Rehearing denied April 15, 1925.
    Indictment for unlawful shooting; from Fulton superior court— Judge Howard. December 6, 1924.

      W. E. Terrell, for plaintiff in error.

      John A. Boykin, solicitor-general, John E. Hudson, Ralph E. Pharr, contra.
   Broyles, C. J.

1. A motion for a new trial based upon alleged newly discovered evidence -is fatally defective unless accompanied by an affidavit of counsel for tbe movant that he “did not know of the existence of such evidence before the trial, and that the same could not have been discovered by the exercise of ordinary diligence.” Civil Code (1910), § 6086. This ruling disposes of the amendment to the motion for a new trial.

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

Judgment affirmed.

Luke and Bloodworth, JJ., eoneur.


text:
    16210.
    Kerby v. The State.
    Decided March 27, 1925.
    Conviction of larceny of tires, etc.; from city court of Swainsboro—Judge Kirkland. December 6, 1924.

      T. N. Brown, for plaintiff in error.

      I. W. Rountree, solicitor, contra.
   Luke, J.

An examination of the record does not. convince this court that the court below abused its discretion or committed legal error, in overruling the motion for a continuance. The evidence authorized the defendant’s conviction, and for no reason assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    16211.
    OLIVER v. THE STATE.
    A conviction will not be set aside by this court on the ground that the only witness for the State was impeached.
    Decided March 27, 1925.
    Accusation of possessing and selling liquor; from city court of Houston county—Judge Riley. December'29, 1924.

      Marx Kunz, for plaintiff in error.

      J. W. Bloodworth, solicitor, contra.
   Bloodworth, J.

The plaintiff in error insists that'the only witness for the State was impeached, and therefore the verdict is without evidence to support it. The decisions from which the following quotations are taken settle the question against this contention. “It being the exclusive province of the jury to determine the credibility of all witnesses, when an effort is made by any of the methods pointed out by law to impeach a witness, the jury then become the triors of the credibility, respectively, of the witness or witnesses by whose testimony the impeachment is attempted; and, accordingly, they have the right, under all the attendant circumstances and conditions, to determine whether credit shall be given to the witness whose credibility has been attacked, or to the witness or witnesses by whose testimony such attack is made, and thereupon decide whether the witness has or has not been impeached. . . A witness is never impeached, in contemplation of law, until there is a mental conviction, produced upon the mind of the jury by proof, that he is unworthy of credit.” Powell v. State, 101 Ga. 9 (5, 5 b) (29 S. E. 309, 66 Am. St. Rep. 277). “The fact that the court will not undertake to review findings of fact by the lower court results not from a mere unwillingness to do so, but because the constitution excludes from its jurisdiction the hearing and determining of any errors other than those fin law and equity.’ That there is no evidence to support a verdict rendered is a question of law, and may, therefore, be reviewed; but where there is evidence of a defendant’s guilt, the sufficiency of this evidence to support the verdict is not rendered a question of law by reason of the fact that there was testimony which, if believed, would have successfully impeached each and all of the State’s witnesses; nor that the State’s testimony bears inherent indicia of untruthfulness.” Plummer v. State, 1 Ga. App. 507 (57 S. E. 969). “The determination of the credibility of the witnesses is so exclusive!y within the province of the jury that the verdict finding a defendant guilty is not affected by the fact that the verdict is supported by the testimony of only one witness, whose testimony is directly in conflict with a large number of witnesses who had equal opportunity of knowing the facts, and who, so far as appears from the record, are worthy of credit. In the absence of any error on the part of the court or any irregularity which may have prejudiced the defendant, such a verdict, approved by the trial judge, is absolutely conclusive; because this court is without jurisdiction to review a finding upon the facts, which is supported by sufficient evidence.” Jolly v. State, 5 Ga. App. 454 (63 S. E. 520). “The credibility of witnesses is a matter exclusively for the jury, and where, on the trial of a criminal case, one" witness testifies positively to all the facts essential to constitute the offense charged, this court can not interfere with the verdict, no matter how many witnesses may have testified to the contrary, or how many circumstances may be adduced tending to disprove the testimony of the single witness. This is true even though an attempt was made at the trial to impeach the only witness for the prosecution, and though many witnesses testified that, from the general bad character of the witness, he was not worthy to be believed on oath.” Chatman v. State, 8 Ga. App. 842 (1) (70 S. E. 188).

Under the foregoing rulings and the facts of this case the judgment must be

Affirmed.

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


author: Beoyx.es, C. J.

text:
    16212.
    Stubbs v. The State.
    Decided March 27, 1925.
   Beoyx.es, C. J.

1. The ground of the motion for a new trial based upon alleged newly discovered evidence is defective, in that the supporting affidavits as to the character, etc., of the alleged newly discovered witnesses fail to show their residence, associates, or means of knowledge, as required by section 6086 of the Civil Code of 1910. Furthermore, the alleged newly discovered evidence is largely cumulative in character and is not such evidence as would probably cause a different verdict upon another trial of the case.

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

Judgment affirmed.

Luhe and Bloodworlh, JJ., concur.

Conviction of manslaughter; from Clayton superior court— Judge’Hutcheson. November 22, 1924.

Lester C. Dickson, for plaintiff in error.

Claude C. Smith, solicitor-general, contra.


text:
    16225.
    Langham v. The State.
    Decided March 27, 1925.
    Indictment for making liquor; from Lee superior court—Judge Littlejohn. December 18, 1924.

      Robert R. Forrester, for plaintiff in error.

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

The evidence amply authorized the defendant’s conviction, and the verdict has the approval of the trial judge. The three special grounds of the motion for a new trial (one the ground of newly discovered evidence, one the ground that a material witness for the State desired to change his evidence, and the other the ground of incompetency of one of the jurors) are without merit. The court properly overruled the motion for a new trial.

Judgment affirmed.

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


text:
    16229.
    LAMAR v. THE STATE.
    The alleged newly discovered evidence did not require a new trial.
    The verdict of voluntary manslaughter was not unsupported by evidence.
    Decided March 27, 1925.
    Conviction of manslaughter; from Houston superior court— Judge Malcolm D. Jones. December 19, 1924.

      Marx Kunz, J. W. Bloodworth, for plaintiff in error.

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

1. Special grounds 4 and 5 are based upon alleged newly discovered evidence. Even if it be granted that proper diligence was exercised in discovering the evidence incorporated in ground 4, it is cumulative. If that embodied in ground 5 can be considered as newly discovered evidence, it is impeaching in its nature, and its only effect would be to tend to discredit a witness for the State. The evidence embraced in these grounds is of such a character that if it were introduced upon another trial, with the other evidence in the case, it is not probable that a different verdict would be returned.

2. “It is well settled by repeated rulings of the Supreme Court and this court that on a trial for murder, if there is anything deducible from the evidence or the defendant’s statement that would tend to show manslaughter, voluntary or involuntary, it is the duty of the court to instruct the jury fully on the law of manslaughter. Crawford v. State, 12 Ga. 142 (6); Jackson v. State, 76 Ga. 473; Wayne v. State, 56 Ga. 113; Bell v. State, 130 Ga. 865 (61 S. E. 996); Strickland v. State, 133 Ga. 76 (65 S. E. 148); Pyle v. State, 4 Ga. App. 811 (62 S. E. 540).” Cain v. State, 7 Ga. App. 24 (65 S. E. 1069). In Griffin v. State, 18 Ga. App. 462 (89 S. E. 537), it was said: “If there be any evidence to create a doubt, however slight, as to whether the offense is murder or voluntary manslaughter, instructions as to the law of both of these offenses should be given. Jackson v. State, 76 Ga. 473, 478; Wayne v. State, 56. Ga. 113.” And “if .there is anything deducible from the evidence or from the defendant’s statement at the trial, that would tend, to show manslaughter, voluntary or involuntary, it is the duty of the court to instruct the jury fully on the law of manslaughter.”

Under the rulings in the foregoing cases a verdict of voluntary manslaughter in this case was not without evidence to support it.

Judgment affirmed.

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


text:
    16230.
    Creswell v. The State.
    Decided March 27, 1925.
    Conviction of possessing licpior; from Walton superior court— Judge Fortson. December 20, 1924.

      E. W. Roberts, for plaintiff in error.

      Henry S. West, solicitor-general, contra.
   Broyles, C. J.

It appearing from the bill of exceptions and the record that the bill of exceptions was not tendered to the judge within twenty days from the date of the judgment overruling tne motion for a new trial, the writ of error is

Dismissed.

Luke and Bloodworth, JJ., concur.


text:
    16232.
    Touchtone v. The State.
    Decided March 27, 1925.
    Rehearing denied April 16, 1925.
    Indictment for embezzlement; from Thomas superior court— Judge W. E. Thomas. December 31, 1924.
    Application for certiorari was denied by the Supreme Court.

      E. K. Wilcox, J. J. Murray, for plaintiff in error.

      Clifford E. Hay, solicitor-general, contra.
   Bloodworth, J.

As far as the special grounds of the motion for a new trial properly; present questions for determination by this court, there is nothing in any of them that requires the grant of a new trial; the evidence demanded the verdict rendered, and the court properly overruled the motion for a new trial.

Judgment affirmed.

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


author: Broxles, C. J.

text:
    16233.
    Williams v. The State.
    Decided March 27, 1925.
    Conviction of cheating and swindling; from Macon superior court—Judge Littlejohn. December 29, 1924.
    A letter addressed to Jesse Williams with a check payable to Jesse Williams, intended for a white person of that name, was received by a colored person of the same name, who presented the check at the bank on which it was drawn. He was convicted under an indictment which alleged that the check described therein, which was on the Bank of Hazlehurst, ivas “really payable and intended for Jesse Williams, white, who was then and there the cashier of the Peoples Bank of Ideal, Georgia,” and that “the said Jesse Williams, colored, did fraudulently personate said Jesse Williams, white, with the intention thereby of fraudulently obtaining money on said check, and did present said check at said Bank of Ideal for payment, with intent to defraud the owner thereof, and did thereby become and is a common cheat and swindler, contrary to the laws of said State,” etc. The demurrer was on the following grounds: (1) No offense is set out. (2) It is not alleged whether the Jesse Williams indicted is white or colored. (3) It is not alleged how the impersonation took place. (4) It is not alleged that the impersonation “was wilfully done, and the circumstances under which a black man could personate a white man.” (5) It is not alleged that Jesse Williams had knowledge that the check payable to Jesse Williams was really intended for Jesse Williams, white, cashier of the Peoples Bank of Ideal. (6) “It is not alleged that Jesse Williams had knowledge that in presenting said check he was not the owner thereof, and the manner in which the alleged fraud was perpetrated.”
   Broxles, C. J.

1. The demurrer to the indictment was properly overruled.

2. In the light of the facts of the case and the entire charge of the court, there is no reversible error in any of the excerpts from the charge which are- complained of.

3. The verdict was amply authorized by the evidence.

Judgment ajjvnned.

Luke and Bloodioorth, JJ., concur.

John B. Guerry, for plaintiff in error.

Jule Felton, solicitor-general, contra.


text:
    16262.
    Spivey v. The State.
    Decided March 27, 1925.
    Conviction of stabbing; from Muscogee superior court—Judge Munro. December 30, 1924.

      M. H. Norris, B. Terry, George 0. Palmer, for plaintiff in error.

      W. B. Flournoy, solicitor-general, contra.
   Broyles, O. J.

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

Judgment affirmed.

Luhe and Bloodworlh, JJ., concur.


text:
    16266.
    Bragg v. The State.
   Bloodworth, J.

1. The court did not abuse its discretion in overruling the motion to continue this case.

2. Even should it be conceded that the evidence incorporated in the second ground of the motion for a new trial was improperly admitted, it is of such little probative value that the error does not require the grant of a new trial. Adams v. State, 27 Ga. App. 48 (2) (107 S. E. 388). Indeed, in the brief of counsel for plaintiff, in error he admits that this evidence “may not of itself be sufficient ground for a new trial.”

3. “Where a motion is made to exclude certain testimony in its entirety, some of which is clearly admissible, a new trial will not be granted because the court refuses to exclude the entire testimony, although some of it may be of doubtful admissibility or not admissible.” Louisville & Nashville R. Co. v. McHan, 144 Ga. 683 (2) (87 S. E. 889); Knight v. State, 143 Ga. 678 (6) (85 S. E. 915); City of Atlanta v. Sciple, 19 Ga. App. 694 (3), 698 (3) (92 S. E. 28).

Decided March 27, 1925.

Conviction of possessing intoxicating liquor; from city court of Sylvania—Judge Evans. January 9, 1925.

Dixon & Gold, J. 8. Powell, for plaintiff in error.

H. 8. VThite, solicitor, contra.

4. Where trvo eases were pending against a defendant, in each of which he was charged with possessing liquor, and in each of which he had different witnesses, and where he “requested the court to require the State to select which case would be put on trial, and that the State be confined to the particular charge covered by said indictment,” and the court granted the request, it was not cause for declaring a mistrial that a certain witness was permitted to testify that on a day different from that named in the indictment on which the accused was being tried the witness “sent a man by the name of Romie Bragg to the house of the defendant, and the said-Romie Bragg returned with a quart of liquor purchased at said residence,” “counsel for defendant not suspecting that such testimony would be offered.”

5. Where a person was on trial charged with “possessing whisky,” and a witness testified that the accused, who was traveling in an automobile, asked him if he wanted “some liquor,” and said that “he had plenty of it in the car,” and where the witness swore that the accused “had the liquor in the back of the automobile," and that he presumed “there were about 35 or 40 bottles and jars in the back of the automobile, filled with liquor,” that he smelled whisky on the breath of the defendant, that the liquid in the jars looked like “shine whisky,” and he knew that it was whisky, this evidence was sufficient to support a verdict of guilty of the crime charged, although the witness swore also that he did not taste or smell any of the liquid in the bottles and jars and that none of it was opened in his presence. Dunn v. State, 32 Ga. App. 491 (123 S. E. 905); Stoker v. State, 23 Ga. App. 11 (2) (97 S. E. 273); Smith v. State, 17 Ga. App. 118 (1) (86 S. E. 823).

Judgment affirmed.

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


text:
    16267.
    Holland v. The State.
   Broyles, O. J.

1. Under the rulings in Durrence v. State, 20 Ga. App. 192 (92 S. E. 962), and the facts of the instant case, the jury were authorized to find that the sexual intercourse between the accused and the prosecutrix was not a purely meretricious transaction, notwithstanding her testimony that the accused promised to marry her if she became pregnant.

2. Where a prosecution for seduction has been suspended by the marriage of the parties, and where it appears that the man has failed to comply with the provision of section 379 of the Penal Code of 1910, that he shall live with the female in good faith for five years, the prosecution can be revived. And where it is so revived, it is not incumbent upon the State to prove that the accused did not give the statutory bond, or that he was unable to give it. This is a matter of defense. The statute (Penal Code of 1910, § 379), properly construed, m'eans that the prosecution is not stopped by the marriage of the parties unless the required bond is given, or, if the bond bo not given, until the man has lived with the female in good faith for live years. A conviction may be had although the evidence be silent as to whether the accused gave the bond or as to whether he was unable to give it. Especially is this true where, as in the instant ease, no question as to the giving of the bond-or as to the defendant’s inability to give it was raised upon the hearing of the case, and the case was tried by both parties on the theory that the bond had not been given, and where there is no contention by the accused that it was actually given.

Decided March 27, 1925.

Indictment for seduction; from Jackson superior court—Judge Russell. December 29, 1924.

Application for certiorari was denied by the Supreme Court.

A. C. Brown, John J. Strickland, for plaintiff in error.

Pemberton Cooley, solicitor-general, contra.

3. Under the above-stated rulings and the facts of the instant case, the verdict was authorized by the evidence, and none of the grounds of the amendment to the motion for a new trial shows reversible error.

Judgment affirmed.

Luke and Bloodworlh, JJ., eoneur.


text:
    16268.
    Horton v. The State.
    Decided March 27, 1925.
    Assault with intent to. murder; from Fulton superior court— Judge Humphries. January 10, 1925.

      II. A. Allen, for plaintiff in error.

      John A. Boykin, solicitor-general, Ralph II. Pharr, contra.
   Luke, J.

The motion for a new trial being based only on the usual general grounds, and there being ample evidence to authorize the verdict, which has the approval of the trial judge, the judgment overruling the motion for a new trial must be »

Affirmed.

Broyles, O. J., and Bloodworlh, J., eoneur.


text:
    16279.
    Manning v. The State.
   Bloodworth, J.

1. The first special ground (numbered 4) of the motion for a new trial alleges that the court erred in admitting certain testimony “over defendant’s objection.” In order to ascertain how or in what manner, or whether or not, this evidence illustrates any issue in the case, it would he necessary to look to other portions of the record, and under repeated rulings of the appellate courts of this State, this ground will not be considered by the reviewing court. Tice Co. v. Evans, 32 Ga. App. 387 (16) (123 S. E. 742), and cases cited. Moreover, “it does not appear how the testimony which was admitted over objection was material or could have been hurtful to the plaintiff in error” (Hunter v. State, 148 Ga. 566 (2), 97 S. E. 523), or that it had any probative value. Clare v. Drexler, 152 Ga. 420 (4) (110 S. E. 176).

2. The opening paragraph of the 5th ground of the motion is as follows: “Because the court erred in not excluding from the jury the following evidence offered by the State, and all of the testimony offered objected to upon the same ground.” This must refer to the objection 'urged in the preceding ground. In Bowen v. Smith-Hall Grocery Co., 146 Ga. 160 (4) (91 S. E. 32), error was assigned as follows: “This charge was error for the reasons stated in ground 5.” In discussing this assignment of error the Supreme Court said: “We will not return to ground 5 of the motion to ascertain what were the exceptions to the charge set forth therein. Each ground of the motion should be complete in itself, and we should not be referred to other grounds to see what questions were there raised.” See also Perkins v. State, 29 Ga. App. 278 (4) (115 S. E. 527).

3. After the testimony referred to above was admitted “the movant then moved to exclude each and every part of the evidence,” upon the ground that “the notes of the stenographer, put in writing at the time said evidence was offered, was the highest and best evidence as to what the defendant Ira W. Manning did swear upon the trial of said ease, it not appearing that said notes were lost or destroyed.” If the words “the notes of the stenographer put in writing at the time said evidence was offered” referred to the shorthand notes of the stenographer, to have introduced them would have been useless, as the jury could not have read them. If these words referred to the evidence after it had been transcribed from the notes, this was impossible, because the stenographer swore positively that he never transcribed these notes.

4. Even should it be granted that there is a slight inaccuracy in the excerpt from the charge of the court of which complaint is made in the 6th ground of the motion for a new trial, this was not of such materiality as to require a retrial of the ease. Holliday v. State, 23 Ga. App. 400 (4) (98 S. E. 386).

5. When read in connection with the remainder of the instructions given the jury, the following instruction was not erroneous: “He (the defendant) has entered a plea of not guilty and enters upon the trial presumed to be innocent, and the burden is upon the State to prove his guilt.” If fuller instructions were desired, a proper and timely written request therefor should have been made. Pullen v. State, 30 Ga. App. 24 (2), 27 (2) (116 S. E. 871), and cases cited; Hatfield v. State, 31 Ga. App. 554 (2) (121 S. E. 129), and citations; Hays v. State, 18 Ga. App. 68 (4) (88 S. E. 752). This ruling disposes also of the 8th ground of the motion for a new trial.

6. Where a person accused of perjury is on trial, the judge should instruct the jury that before they would be authorized to convict the accused, tlie charge must be established by the testimony of two witnesses or by one witness and corroborating circumstances. Penal Code (1910), § 1017. However, the. failure so to charge in this case could not have been harmful to the cause of the defendant, as he introduced no evidence, and two or more witnesses for the plaintiff testified positively to each of the material allegations in the indictment.

Decided March 27, 1925.

Indictment for perjury; from Wayne superior court—Judge Ilighsmith. January 10, 1925.

Application for certiorari was denied by the Supreme Court.

M. Price, James R. Thomas & Son, for plaintiff in error.

17. B. Gibbs, solicitor-general, Alvin V. Sellers, contra.

7. It is urged that the evidence introduced on behalf of the State “failed to show that the superior court of Wayne county, Georgia, had jurisdiction over and to try said case.” There was no demurrer or plea raising this point. The record contains an appeal from the court of ordinary to the superior court. In addition, on the trial in the superior court, evidence was introduced, without objection, that the case was pending on appeal.

8. The 11th ground of the motion was emasculated by the note attached thereto by the judge who tried the ease. Jordan v. State, 153 Ga. 167 (111 S. E. 417).

9. The court did not err in allowing in evidence the ajipeal to the superior court from the judgment rendered in the court of ordinary and filed May 3, 1922. The only objection urged at the time to its introduction was that it was “wholly irrelevant, immaterial, and inadmissible.” In the latter part of this ground the court is alleged to have erred in admitting this evidence, and reasons are given why it should not have been admitted. Such reasons will not be considered by this court unless : they “appear to have been urged before the trial judge and at the proper time.” This does not appear. Langston v. State, 153 Ga. 127 (1) (111 S. E. 561), and cases cited; City of Rome v. McWilliams, 145 Ga. 191 (88 S. E. 931), and citations.

10. There is ample evidence to support the verdict.

Judgment affirmed.

Broyles, O. J., and fjulce, J., eoneur.


author: Blood worth, J.

text:
    16284.
    Crawford v. The State.
   Blood worth, J.

1. “A ground of a motion for a new trial, complaining of the court’s ruling upon the admissibility of specified testimony, which does not state the name of the witness whose testimony was admitted or excluded, is too incomplete to be considered. Hunter v. State, 148 Ga. 566 (1) (97 S. E. 523); Adams v. State, 22 Ga. App. 252 (1) (95 S. E. 877), and citations.” Palmer v. State, 28 Ga. App. 567 (112 S. E. 154). Under this ruling special grounds 1, 2, and 3 of the motion for a new trial will not be considered.

2. Ground 4 of the motion for a new trial alleges that the court erred “because, over objection of movant, the State was alleged [allowed?] to send out with the jury a certain ‘jitney-bus tag.’ ” In order to ascertain whether, and how, this evidence illustrates any issue in the case, it would be necessary to look to other portions of the record. “Under repeated rulings of this court and of the Supreme Court, each special ground of a motion for a new trial must be complete within itself; and when so incomplete as to require a reference to the brief of the evidence, or to some other portion of the record, in order to determine what was the alleged error and whether such error was material, the ground will not be considered by the reviewing court. McCall v. State, 23 Ga. App. 770 (99 S. E. 471); Roddenberry Hardware Co. v. Merritt, 17 Ga. App. 425 (87 S. E. 681), and citations.” Franklin v. State, 28 Ga. App. 460 (1 b) (112 S. E. 170). See also Hunter v. State, 148 Ga. 566 (2) (112 S. E. 170); Clare v. Drexler, 152 Ga. 428 (4) (110 S. E. 176). The rulings in these cases dispose of this special ground adversely to the contention of plaintiff in error.

Decided March 27, 1925.

Indictment for larceny of automobile; from Fulton superior court—Judge Howard. January 10, 1925.

Ernest G. Bentley, C. P. Bentley, for plaintiff in error.

John A. Boylcin, solicitor-general, Ralph H. Pharr, contra.

3. Under the facts of this case there is no merit in grounds 5 and 6 of the motion for a new trial.

4. There is some evidence to support the verdict.

Judgment affirmed.

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


text:
    16285.
    Hart v. The State.
    Decided March 27, 1925.
    ' Conviction of possessing intoxicating liquor; from Fulton superior court—Judge E. D. Thomas. January 10, 1925.

      J. Walter LeCraiv, for plaintiff in error.

      John A. Boylcin, solicitor-general, Ralph II. Pharr, contra.
   Broyles, C. J.

The verdict was demanded by the evidence, and none of the grounds of the amendment to the motion for a new trial requires a reversal of the judgment refusing a new trial.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


text:
    16352.
    Coggeshall et al. v. The State.
   Broyles, C. J.

1. “ ‘While it is mandatory upon the judge to whom a petition for a change of venue is presented in behalf of a defendant in a criminal case, under the act approved August 21, 1911 (Acts of 1911, p. 76), to change the venue if the evidence submitted should reasonably show that there is a “probability or danger of lynching or other violence,” it is primarily a question for the judge, upon the hearing of such petition, to determine from the evidence whether or not such probability or danger of lynching or other violence exists; and where the evidence upon such issue conflicts, the judgment denying the defendant’s motion to change the venue will not be reversed, unless manifestly erroneous. Where the evidence fails to reasonably show the probability or danger of lynching or other violence, it is not error on the part of the judge to refdse to change the venue.’ Broxton v. State, 24 Ga. App. 31 (1) (90 S. E. 635), and cases cited.” Wilson v. State, 28 Ga. App. 574 (112 S. E. 295).

Decided March 27, 1925.

Indictment for murder; motion to change venue; from Putnam superior court—Judge Park. March 16, 1925.

Allen & Pottle, Branch & Howard, for plaintiffs in error.

Joseph B. Duke, solicitor-general, contra.

2. “ ‘Where an application is made, by one accused of crime, for a change of venue on the ground that an impartial jury can not be obtained, the law devolves on the trial judge the duty and responsibility of making an examination and informing himself of the truth of the averments in the application; and where after hearing evidence the trial court is satisfied that a fair and impartial jui-y may be had in the county where the crime is alleged to have been committed, this court will not reverse his judgment refusing to change the venue, unless it is made to appear that there has been an abuse of discretion.’ Coleman v. State, 141 Ga. 737 (2 S. E. 227); Best v. State, 26 Ga. App. 671 (1) (107 S. E. 266).” Wilson v. State, supra.

3. The plaintiffs in error in the instant case were indicted in Putnam county for murder, and moved for a change of venue on the grounds that they could not get a fair and impartial trial in that county, and that if brought to trial therein there would be a probability or danger of their being lynched, or an attempt made to commit other violence upon them. Upon the hearing of the motion the great preponderance of the evidence adduced (as frankly admitted by counsel for the movants) was to the effect that the plaintiffs in error could obtain a fair and impartial trial in Putnam county, and that, if tried in that county, there was no probability or danger of their being lynched or of other violence attempted to be committed upon them, even if they should be acquitted by the jury. It follows that under the foregoing-rulings the presiding judge was amply authorized, from the evidence introduced to determine that the movants could obtain a fair and impartial trial in Putnam county, and that there was no probability or danger of their being lynched or of other violence being attempted upon them, if tried there, even if they should be acquitted of the charge against them. The denial of the motion was not error.

Judgment affirmed,

hulee and Bloodworth, JJ., concur.


text:
    16200.
    Sims v. The State.
    Decided March 28, 1925.
    Indictment for burglary; from Wilkes superior court—Judge Sburley. November 29, 1924.
    The prosecutor testified that he missed from his home a gold ring and a $2.50 gold coin, his property; that the defendant told him where the ring could be found, and it was found at that place; that the defendant said also that he had the gold coin, and said that lie got it “out of the trunk in the house”; that “he told how he got in the house, that he went in a window on the east side of the house.” Another witness testified that a $2.50 gold coin was found on the defendant, and that he stated that he “got it out of the house.” The defendant, in his statement at the trial, said, “I plead guilty to getting that money.” He did not say where or how he got it.

      Hugh E. Covibs, for plaintiff in error.

      M. L. Fells, solicilor-general, contra.
   Luke, J.

The accused was charged with burglary and was convicted of that offense. The evidence demanded a verdict of larceny from the house, but did not authorize the verdict returned, since there was no evidence, either direct or circumstantial, that showed a breaking, and proof of a breaking is essential in a prosecution for burglary. Strickland v. State, 12 Ga. App. 640 (3) (77 S. E. 1070). It follows that the court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, O. J., and Bloodivorth, J., concur.


author: Jenkins, P. J.

text:
    15773.
    FIRST NATIONAL BANK OF THOMASVILLE v. SANDERS, administrator.
    Under the evidence as to the deposit made in the bank by the husband in the wife’s name, the jury were authorized to find—without regard to whether there was any probative value in the evidence (admitted without objection) as to the changing of the deposit at his instance so as to make it stand in the names of his wife and himself jointly—that it belonged to her alone at the time of her death.
    Decided April 10, 1925.
    Complaint; from city court of Thomasville—Judge Hammond. June 30, 1924.
    IF. I. McIntyre, J. E. Cmigmiles, for plaintiff in error.

      J. B. Burch, contra.
   Jenkins, P. J.

When this case came formerly before this court on the pleadings alone, it was held that, “where a husband deposited in a bank a sum of money belonging to himself, in the name of his wife but with the understanding that all or any part thereof might be withdrawn either by himself or by his wife, but by no one else, thus reserving to himself a free right of withdrawal, but giving to the wife the same right, the effect was to make a joint deposit with the conditions stated attached thereto;” that, “where the deposit remained intact and nothing was withdrawn by either the husband or the wife, both of whom subsequently died, . . the bank was right in requiring the representative of the husband who in fact had owned the moneys to join in claiming the fund, in the absence of any appropriate proceedings to adjudicate their respective rights and interests;” and that “accordingly, the court erred in sustaining the demurrer to the defendant’s plea and answer and in entering a judgment for the plaintiff,” suing as administrator of the wife alone. First Nat. Bank of Thomasville v. Sanders, 31 Ga. App. 789 (3) (122 S. E. 341). In the subsequent trial of the case under the petition and plea it does not appear from any of the evidence that, at the time the husband made the original deposit with the bank, he designated the fund as belonging to himself, but it does appear bjr the undisputed evidence that the husband then entered the deposit in the name of the wife, and a pass-book and deposit slip were both made out to her alone, that the pass-book in her name was later posted by the bank, showing the amounts due to her as interest, and that after her death this pass-book was found in her trunk. There was also evidence from the bank’s cashier, admitted without objection, that the husband, several days after making the deposit to the credit of the wife, returned to the bank and requested that the deposit be arranged so that he as well as the wife could draw thereon, and that the bank accordingly then fixed the ledger and identification card so as to show the account as in the name of both the husband and the wife. A verdict was rendered in favor of the plaintiff (the wife’s administrator), and the bank, whose position appears to be merely a proper insistence that the fund be paid to the legal owners, moved for a new trial on the general grounds.

In view of all the facts and surrounding circumstances, a verdict sustaining the plea of a joint deposit as set up by the bank was not demanded; for while it is true that, had it appeared that the husband at the time he made the deposit dealt with the fund as his own, and merely entered it for deposit in the name of his wife, such conduct on his part, unaccompanied by any act or declaration indicating an intention to donate the fund, would not alone be sufficient to prove a gift (12 R. C. L. 948, 952; Smith v. Peacock, 114 Ga. 691, 692, 40 S. E. 757, 88 Am. St. Rep. 53), still, since the deposit as originally made does not appear to have been other than a deposit by the wife, made through the husband, and since a pass-book is prima facie evidence of the state of an account of a depositor with a bank (Bank of Lawrenceville v. Rockmore, 129 Ga. 582, 587, 59 S. E. 291; Moore v. Citizens Bank, 21 Ga. App. 183 (1), 94 S. E. 90), the jury were authorized to find that the fund claimed in the petition belonged to the estate of the wife; and this is true irrespective of whether or not the evidence, unobjected to, as to the words and actions of the now deceased husband, subsequent to the time of making the deposit to the credit of the now deceased wife, in attempting to change the same, had any probative value as going to show an original joint deposit as alleged by the bank in its plea. The exceptions being limited to the general grounds, and the evidence not demanding a verdict sustaining the defendant’s-plea, the court did not err in overruling the bank’s motion for a new trial.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15819.
    Rome Railway & Light Company v. Jones.
   Jenkins, P. J.

1. The ground of demurrer, setting up that the plaintiff is not entitled to recover, by reason of the fact that it appears from the petition that she had accepted compensation from the employer of her deceased husband under the provisions of the workmen’s compensation act, is controlled, adversely to the movant, by the decision of this court in Hotel Equipment Co. v. Liddell, 32 Ga. App. 590 (124 S. E. 92 (1 b) ).

2.'While the determination of questions of negligence lies peculiarly within the province of the jury, and in the exercise of this function the question as to what constitutes the proximate cause of the injury complained of may be directly involved as one of the essential elements and disputed issues in the ascertainment of what negligence, as well as whose negligence, the injury is properly attributable to, and while it is also true that the mere fact that the injury would not and could not have resulted by reason of the defendant’s acts alone will not of itself be taken to limit and define the intervening agency as constituting the proximate cause (Rollestone v. Cassirer, 3 Ga. App. 161, 173, 59 S. E. 442; Ga. Ry. & Power Co. v. Ryan, 24 Ga. App. 288, 100 S. E. 713), yet a demurrer to a petition should be sustained where it appears from the plaintiff’s pleading that the'negligence charged against the defendant was not the proximate and effective cause of the injury. Southern Ry. Co. v. Barber, 12 Ga. App. 286 (77 S. E. 172). The most generally accepted theory of causation is that of natural and probable consequences (Mayor &c. of Macon v. Dykes, 103 Ga. 847, 848, 31 S. E. 443); and in order to hold the defendant liable the petition must show either that the act complained of -was the solo occasion of the injury, or that it put in operation other causal forces, such as were the direct, natural, and probable consequences of the original act, or that the intervening agency could have reasonably been anticipated or foreseen by the original wrongdoer. Southern Ry. Co. v. Webb, 116 Ga. 152; Hardwick v. Figgers, 26 Ga. App. 494 (106 S. E. 738); Gillespie v. Andrews, 27 Ga. App. 509 (1) (108 S. E. 906). The petition in the instant case does not show on its face that the alleged negligence of the defendant did not constitute the proximate cause of the injury; nolis this court able to say as a matter of law that the intervening contributing agency should not have been reasonably anticipated by the defendant as a natural and probable consequence of its own alleged negligence; nor that the deceased might have obviated the consequences of defendant’s alleged negligence by the exercise of ordinary care on his part.

Decided April 10, 1925.

Damages; from Floyd superior court—Judge Wright. June 11, 1934. . -

Eosa H. Jones sued the Rome Railway & Light Company for the homicide of her husband. At the time of the homicide he was working for the Ingalls Iron Works Company, which was engaged as a contractor in erecting a steel building for a third company. A part of this work involved the unloading of some steel or iron beams from railroad-cars in which they had been shipped, placing them on wagons or carts, and hauling them to the place where the building was being erected. The work of unloading was being carried on by using a derrick, with which the iron or steel beams were lifted from the railroad-car and carried over to the wagon or cart. Near the place where this work was being done was a power wire of the Rome Railway & Light Company. As one of these steel beams was being lifted and carried by the derrick, one oí the cables carrying the beam was swung around and touched this electric-power wire. It was the duty of the deceased, after this beam was placed on the wagon or cart, to unhook it from this cable, and while he was doing this the cable swung against this power wire and an electric current was conducted through his body, causing his death. The negligence alleged AAras that the power wire Avas defectively and improperly insulated, and furthermore that an ordinance of the City of Kome required that all electric Avires be placed not less than 24 feet from the ground and under supervision of the superintendent of public Avorks, and that this ordinance Avas violated in both particulars. It was alleged that the poiver wire was of the type known as an insulated wire, and that the appearance of insulation Avas likely to deceive and did deceive persons into thinking that contact with the Avire Avould not be dangerous, but that the insulation Avas defective or broken so that it allowed the current to escape from the wire into the cable and kill the plaintiff’s husband. The defendant demurred to the petition, and several amendments to it were made. It appears from the petition that the plaintiff had received compensation from the Ingalls Iron Works Company under the workmen’s compensation act, and the defendant contended that under the allegations of the petition the iron works company Avas a joint tort-feasor, and that consequently this compensation barred her from a recovery against the defendant.

3. In accordance with the foregoing rulings, the judge did not err in overruling the demurrer to the plaintiff’s petition.

Judgment affirmed.

Stephens and Bell, JJ., concur.

L. A. Dean, Lamar C&mp, for plaintiff in error.

Willingham, Wright & Covington, Scott, Kemper & Hornbuclcle, contra.


author: ¡Stephens, J.

text:
    15822.
    United Cigar Stores Company of America v. O’Connor-Schweers Paint Company.
    Decided April 10, 1925.
   ¡Stephens, J.

1. On tlie trial of an issue formed by a distress warrant and tlie counter-affidavit of the tenant, where the tenant had replevied the property and had given bond for the eA'entual condemnation money as provided by the Civil Code (1910), § 5391, where-it appeared that, more than four months after the levy of the distress warrant, the tenant was adjudicated a bankrupt, the plaintiff could nevertheless, upon proof of the indebtedness, proceed to take a judgment against the bankrupt, as the basis of a judgment against the surety on the' bond, on condition that a stay of execution be granted as against the bankrupt. Alvaton Mercantile Co. v. Caldwell, 156 Ga. 317 (119 S. E. 25).

2. The court erred in overruling the motion of the plaintiff to enter up judgment against the defendant on condition that the execution thereon be stayed.

Judgment reversed.

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

Distraint; from Richmond superior court—Judge A. L. Franklin. July 21, >1924.

Pierce Brothers, for plaintiff.

P. II. Rowe, for defendant.


text:
    15830.
    Ivester v. Coe, by next friend.
   Jenkins, P. J.

1. “Slander, or oral defamation, consists, first, in imputing to another a crime punishable by law,” or, among other charges and disparaging words recognized by the statute, it may consist in charging a person of “being guilty of some debasing act which may exclude him from society.” Civil Code (1910), § 4433. Words charging a person with illegal sexual intercourse with another impute a crime and are actionable per se. Penal Code, § 372; Nicholson V. Dillard, 137 Ga. 225, 231 (73 S. E. 382); Richardson v. Roberts, 23 Ga. 215, 221 (8).

2. An essential ingredient of an action for libel is malice, express or implied (Civil Code of 1910, § 4428; State Mut. Life Assn. v. Baldwin, 116 Ga. 855 (1), 43 S. E. 262), and it would seem that the same rule should apply where the statement is merely oral and not written or printed (Civil Code, § 4429; Nelson v. Davis, 9 Ga. App. 131, 137, 70 S. E. 599); but where the language used is actionable per se, malice is implied, except where the occasion of the utterance renders it privileged, in which case, while the occasion does not excuse if the accusation is maliciously made (Civil Code, § 4437), the burden is put upon the plaintiff to establish malice. Lester v. Thurmond, 51 Ga. 118; Hendrix v. Daughtry, 3 Ga. App. 481, 482 (60 S. E. 206).

3. Communications which are deemed privileged may be such in an absolute sense (Civil Code, § 4438), or may be only conditionally so. Among the latter are communications made in the performance of a private duty, either legal or moral, and statements made to protect the speaker’s own interest in a matter where it is concerned. Civil Code, § 4436 (1, 2, 3). In order to make the defense of privilege complete, the defendant must show, among other things, a proper occasion for the utterance, and that the publication was limited to proper persons. In the instant case the charge by the defendant, impugning the chastity of the plaintiff, whether it consisted of the language alleged in the petition or that set forth in the plea, was admittedly made not only -in the presence of the plaintiff’s father, but in the presence of some four or five other witnesses, whose presence was then and there procured by the defendant. Consequently, it can not be said that the plea setting up that the communication ivas privileged was in any wise sustained. Sheftall v. Cen. of Ga. Ry. Co., 123 Ga. 589 (51 S. E. 646).

4. In a suit for slander, charging the utterance of language which is slanderous per se, where the utterance was not privileged, the defendant may defend by denying that the words were uttered, or he may defend by setting up the truth of the charge in full justification. Civil Code (1910), § 4435. Where the plea in effect admits the utterance of language the natural and reasonable construction of which imputes a crime, and reiterates the charge, nothing short of proving the truth of the charge as admittedly made will justify a verdict in favor of the defendant. In the absence of such proof, malice is conclusively presumed, but if the defendant should partially and imperfectly establish his charge by the production of evidence strongly tending to establish, though failing to establish the same, the jury may mitigate the damages imposed, on the theory that the defendant, though wrongfully negligent and guilty of legal malice in making the accusation, was not moved therein by the promptings of actual and express malice. In the instant case no exception is taken to any charge relating to the measure of damages or their mitigation, or to failure to comply with a written request to charge on that subject, but complaint is made that the charge as a whole failed to state properly the law of the ease, especially with reference to mitigation of damages, and it is contended that the court should have charged without a request “the correct rule for the jury to assess damages, and the correct rule by which the jury could consider the pleadings filed by. the defendant and the evidence offered by the defendant on the question of mitigating the damages if the jury believed that the defendant had published the slander alleged.” The court gave in charge the language of section 4429 of the Civil Code, and in other instructions gave the defendant the full benefit of the principle of law set forth above as to mitigation of damages.

5. The court did not err in admitting, over the defendant’s objection that it was irrelevant and unauthorized by the pleadings, the evidence of the plaintiff to the effect that, one or two weeks before the alleged slander, the defendant unsuccessfully attempted to kiss and to. forcibly embrace her. Such evidence was material on the issue as to good faith or malice of the defendant in making the alleged communications to the father in the presence of several witnesses. 17 R. C. L. 167. See also Adkins v. Williams, 23 Ga. 222 (1), 224; 36 C. J. 1246, 1248. This was one of the vital issues in the case under certain portions 'of the testimony tending to show that the presence of the witnesses and the making of the statements arose from the initiative and acts of the defendant alone.

6. “Talebearers are as bad as talemakers.” Every repetition of a slander originated by a third person is a wilful publication of it, rendering the person so repeating it liable to an action, and it is no defense that the speaker did not originate the slander, but heard it from another, even though he in good faith believed it to be true. Cox v. Strickland, 101 Ga. 482 (3), 493 (28 S. E. 655); Anderson v. Savannah Press Pub. Co., 100 Ga. 454 (28 S. E. 216); Richardson v. Roberts, 23 Ga. 215 (3, 4), 220; Bennett v. Crumpton, 1 Ga. App. 476, 478 (58 S. E. 104); Newell on Slander & Libel (4th ed.), p. 337; Odgers on Libel & Slander, 173. The charge giving in effect this rule was not an erroneous statement as to the law; nor was it unauthorized, as contended, under the pleadings and the evidence, there being testimony from the defendant himself that his nephew, with whom the misconduct was alleged to have occurred, had told the defendant thereof prior to the alleged slander.

7. The court, when defining slander in substantially the language of section 4433 of the Civil Code, did not err in stating, that, in addition to “imputing to another h crime punishable by law,” such as “adultery or fornication and adultery,” slander might consist also in “charging him with having been guilty of some debasing act which may exclude the party -from society.” The exception to this language is that “this suit was brought for defamation by spoken words imputing a crime, punishable by law,” and that the charge as to a “debasing act” was not authorized by the pleadings and the evidence. Since the evidence warranted the instruction, and since the petition charged that the defendant had spoken words imputing acts of fornication and adultery with another, and referred thereto not only as an imputation of an “offence,” but also as “misconduct imputed to her by the said defendant,” on account of which the plaintiff’s neighbors, citizens, and associates have “withdrawn their confidence and companionship, wholly refusing and still refusing to associate with your petitioner as in the past,” and since the acts charged constituted both an “offence” and a “debasing act,” this ground is without merit.

8. In two excerpts, to which separate exceptions are taken, the court charged as follows: “Now the question of whether or not it was intentionally done, or whether with malice or without malice, you may consider the pleading filed by the defendant in this case;” and, immediately following, this language: “If the defendant in his plea charged her with an offense, that the plaintiff made improper advances on him, and charges that the advances were immoral, then the burden would be on the defendant to prove those charges; and if he didn’t do it, you may consider that on the question of whether or not there was malice and a verdict could not be predicated on damages, but only on the question of malice at the time the language was used, if it was used.” The grounds of exception are that these instructions were “not a correct statement of the law,” and were misleading to the jury, unauthorized by the “pleadings and the evidence, and placed the burden of proof on the defendant to sustain his plea, while under the law the burden was on the plaintiff to make out her case,”, and that “the jury would, only be authorized to consider the pleadings of defendant on the question of. mitigating the damages.” While the plea of the defendant denied that he had in terms charged the plaintiff with the offense of fornication, it did set forth that he had seen the plaintiff and the defendant’s nephew “go into the woods together at a place near defendant’s house under suspicious circumstances, and that this meeting was effected bj' motions and signs by said parties so that they met together in said woods,” and that “the circumstances were very suspicious,” that he so informed the plaintiff’s father; and, in concluding, the plea referred to its allegations as “in justification.” The plea set up also that the communications, so far as thus admitted, were privileged because made in the performance of a legal and moral duty to the plaintiff and her father, and made bona fide with good intent, to protect the parties. However, in another paragraph of the plea, the defendant alleged that the plaintiff, “along about said time and before the filing of this suit, made improper advances on this defendant in an immoral way.” There was undisputed testimony from two physicians, offered in behalf of the plaintiff, that she was a virgin. The only evidence offered to sustain the allegation with reference to a meeting in the woods was that of the defendant himself, and that was vague and indefinite. Iiis evidence with reference to the alleged immoral advances made to himself was as follows: “Regarding the improper proposals she made to me—she hasn’t said anything directly to me— there was one time I was getting some pine—had to get some pine splinters below the house, and she come to where I was at, she had no subject at all, but just come out there and she tlirowed herself in my way and pass by home and have no occasion to stop, and kinder tlirowed herself in my way. I didn’t have anything to do with her.” Held: Where the words are privileged, the mere fact that a plea of justification is filed is not alone evidence of malice sufficient to go to the jury, but in such a case, where defendant will neither abandon the plea nor give any evidence to support it, obstinately persisting in the charge to the last without any sufficient reason, this alone may he sufficient evidence of malice. “Thus, a plea of justification may, according to the evidence introduced under it, have one of three effects in the action: (1) the plea being established, the action is simply defeated; (2) failure to establish it, connected with failure to show any reasonable or proper cause for filing it, may aggravate the damages; (3) the partial or imperfect establishment of it, or the production of evidence strongly tending to establish it, may mitigate the damages.” Henderson v. Fox, 83 Ga. 233 (3), 243 (9 S. E. 839); Ransone v. Christian, 49 Ga. 491 (4); Henderson v. Fox, 80 Ga. 479 (3), 482 (6 S. E. 164). The instructions excepted to were fully as favorable to the rights of the defendant as the evidence offered in support of his plea warranted.

Decided April 10, 1925.

Action for slander; from Stephens superior court—Judge J. 33. Jones. July 7, 1924.

Leonora Coe, by lrer next friend, sued J. C. Ivester for slander, and in her petition as amended alleged, that she was a virgin and pure in character, and that tlie defendant, on April 23, 1922, spoke to and in the presence of E. E. Coe, Eeuben Ivester, and otlier persons named, the following false and scandalous words concerning her character: “I have seen Leonora and Eeuben Ivester meet in the woods at different times- alone,” and other words set out, to the same effect; and “I can prove the very act by different ones in the past, and Leonora is big now” (meaning tliat she was pregnant with a bastard cliild, the foregoing assertions meaning that slie was going to the woods for immoral purposes and committing fornication and adultery witli Eeuben Ivester); and that by reason of tire speaking of these malicious and defamatory words she was greatly injured in her good name and reputation, etc.

The defendant in Ins answer denied these allegations, and further pleaded in substance as follows: Defendant’s nephew, Reuben Ivester, was living in defendant’s house with him and working on his -farm for him, about February 20, 1922, and before and after that time he saw the plaintiff and Reuben Ivester go into the woods together at a place near defendant’s house under suspicious circumstances, and this meeting was effected by motions and signs by them. Defendant went in good faith to E. E. Coe, the plaintiff’s father, and communicated to him this information, and remonstrated with Reuben about the matter and tried to get him to keep away from Leonora and go on with his work for defendant and not get into any trouble. Defendant did not see Reuben and Leonora in the act of adultery or fornication, and did not charge adultery or fornication upon them, but the circumstances were very suspicious, and he bona fide and with good intent and to protect the said persons from shame, and to protect his own interest in a matter in which he was concerned, informed the plaintiff’s father of said conduct, as’ he felt that to do this was his duty, both legal and moral, that the father might save his daughter from trouble, shame, and disgrace, and that Reuben might be corrected and kept at his work, and therefore the said communication was privileged under the law. The defendant further averred: “Plaintiff Leonora Coe along about said time was a young girl 16 or 17 years old, and was stating to her associates that she and defendant were soon to be married, which was not true, and Leonora, along about said time and before the filing of this suit, made improper advances on this defendant in an immoral way. Defendant never at any time gave Leonora Coe any grounds or reason to believe that he would marry her. And therefore defendant pleads this in justification and as a privileged communication as allowed by law.”-

Judgment affirmed.

Stephens and Bell, JJ., eoneur.

The trial of the case resulted in a verdict against the defendant for $2,000. The case came to this court on exceptions to the overruling of his motion for a new trial. The grounds of the motion are sufficiently indicated in the foregoing decision.

Farmor Barrett, J. J. & Bam Eimzey, for plaintiff in error.

John 0. Bell, T. Q. Borough, contra.


text:
    15841.
    Huber v. Vereen.
    Decided April 10, 1925.
   Jenkins, P. J.

1. “Custom or usage, while admissible to explain an ambiguous written agreement, is inadmissible if repugnant to or inconsistent with a clear, express agreement.” Stamey v. Western Union Tel. Co., 92 Ga. 613, 616 (18 S. E. 1008, 1010, 44 Am. St. Rep. 95); Case Threshing Machine Co. v. Broach, 137 Ga. 602 (73 S. E. 1063); Park v. Piedmont Life Ins. Co., 48 Ga. 601, 606; Albany Ry. Co. v. Merchants Bank, 137 Ga. 391 (4), 397 (73 S. E. 637); Parcel Delivery Co. v. American Oil Pump Co., 25 Ga. App. 659 (1) (104 S. E. 27); Brunswig v. East Point Milling Co., 11 Ga. App. 9 (2) (74 S. E. 448); 17 C. J. 508. Thus, where the vendor of an automobile sues the purchaser, upon a promissory note executed by the purchaser to the vendor in payment of the balance of the purchase-price, unconditionally promising to pay the specified principal and interest on a certain date, identifying the machine by motor number and description, and agreeing that “this property is bought after full inspection and without warranty either express or implied,” a plea which admits the execution of the note and the delivery of the ear under the contract, but seeks to set up as a defence an alleged custom and usage among automobile dealers not to regard contracts of purchase as complete and binding before delivery .of the machines, and to allow or charge against purchasers on such contracts reductions or increases in price, made by the manufacturers between the, time of signing the contract and the delivery of the ear, is subject to demurrer upon the ground that such a custom “seeks to vary, add to, and contradict the terms of the express, unambiguous written contract sued upon.” See Bradley v. Dozier Land Co., 29 Ga. App. 78 (1) (113 S. E. 819); Tennille Banking Co. v. Ward, 29 Ga. App. 660, 664 (116 S. E. 347). Nor, in a suit such as stated, is there any mutual mistake shown by allegations of a plea that, after such a contract of purchase and sale had been made, the manufacturer reduced the price on its cars in a stated sum, so as to entitle the purchaser, in the absence of any provision therefor in the contract, to a credit of such reduction, notwithstanding that the seller may have already received the benefit thereof. This case is distinguished from that of Pilcher v. Thompson, 29 Ga. App. 493 (2) (116 S. E. 49), where the principle involved was the alleged fraudulent misstatement of an existing fact. Especially does a plea such as that described fail to set forth, as against demurrer, a good defense, where it appears that the clear and unambiguous promise to pay was voluntarily given without protest, in renewal of an original note, after maturity of the debt, and after the car had been delivered and accepted, and when it continued to be retained by the purchaser, and there is no averment that he did not know of the factory’s reduction in price when he executed the renewal note sued on.

2. The court did not err in striking the defendant’s plea on demurrer, and entering judgment for the plaintiff.

Judgment affirmed.

Stephens, J., concurs. Bell, J., disqualified.

Attachment; from Colquitt superior court—Judge Thomas. July 22, 1924.

J. L. Dowling, for plaintiff in error.

E. B. Askew, contra.


author: Stephens, J.

text:
    15860.
    Barnes v. West Publishing Co.
    Decided April 10, 1925.
    Affidavit of illegality; from city court of Macon—Judge Jordan. June 2, 1924. . *

      E. G. Collins, for plaintiff in error.

      Marlin, Marlin & Baldwin, contra.
   Stephens, J.

1. A defendant upon whom service has been perfected and against whom a judgment has been rendered, although he was in default and made no appearance by plea or answer, has had his “day in court.” Civil Code (1910), § 5311.

2. Where such a judgment is obtained in a suit upon a conditional contract in writing or upon an unverified open account, and without the introduction of any testimony, the judgment is not subject to attack by an affidavit of illegality based upon the ground that it was without evidence to support it. Brown v. Webb, 121 Ga. 281 (48 S. E. 917); Taylor v. Holmes, 25 Ga. App. 422 (103 S. E. 687).

Judgment affirmed.

Jenkins, P. J., and Bell, J., coneur.


text:
    15869.
    Roberts v. Citizens Bank & Trust Company.
   Jenkins, P. J.

1. While the presumptions are in favor of the validity of verdicts, and they are to have a reasonable intendment, so as not to be avoided save from necessity, and while in any case the test of certainty is whether the verdict can be made certain by what it contains or by the record, still the judgment entered thereon must follow the true meaning and intent of the finding; and where it is not possible to frame a judgment in accordance with the certain intent of the verdict as construed with the pleadings, the verdict must be set aside and a new trial ordered. Manget-Brannon Co. v. White Crown Fruit Jar Co., 20 Ga. App. 339 (93 S. E. 307).

2. While a traverse to an answer in a garnishment proceeding, which merely denies the truth of the answer, is sufficient (Turner v. Rosseau, 21 Ga. 240; Barkley v. May, 3 Ga. App. 101 (1), 59 S. E. 440), still where the traverse merely disputes the truth of an answer denying all indebtedness, a verdict which simply finds “in favor of the plaintiff” fails to establish any specific amount subject to the garnishment, such as would authorize a judgment thereon. Consequently, where such a situation appeared upon the face of the record as disclosed by the pleadings, including the verdict, and the verdict was not cured or amended prior to the dispersing of the jury (Smith v. Pilcher, 130 Ga. 350, 60 S. E. 1000), a motion to arrest the entering of a judgment upon the verdict and to set the verdict aside on account of such apparent defects was properly sustained. The rule may be otherwise where the traverse in fact avers that the “garnishee was indebted to the defendant in a stated amount.” In such a case a verdict “in favor of the plaintiff” might properly be construed as a finding in favor of the traverse, for the amount named therein. Whaley v. Kear, 139 Ga. 16 (2) (76 S. E. 3990). In the instant case the jury were instructed that in the event they found the plaintiff’s contentions to be true, they should render a verdict in the form and manner in which they did; still, the evidence introduced on the trial is not specified, and there was no attempt to have it brought up as a part of the record, and therefore, even if, in construing the verdict, it were legal and proper to look further than the pleadings and to consider undisputed evidence as to what amount, if any, the garnishee had in his hands belonging to the defendant at the time the summons was served (Garrett v. Wall, 29 Ga. App. 642 (4 b), 116 S. E. 331; Leffler v. Union Compress Co., 121 Ga. 40, 44, 48 S. E. 710), this court would not be authorized to assume that the judge erred in holding that the verdict, apparently insufficient, was not in fact insufficient to form the basis of a judgment.

Decided April 10, 1925.

Garnishment; from city court of Bainbriclge—Judge Spooner. August 11, 1934.

H. O. Rawls, Hartsfield & Conger, for plaintiff.

J. C. Hale, for defendant.

Judgment affirmed.

Stephens and Bell, JJ., coneur.


text:
    15876.
    Van Dyke et al. v. White Company.
   Jenkins, P. J.

1. The demurrer raising the objections that the petition in trover did not set forth the place of residence of the plaintiff, and that it did not allege that the property sued for belonged to plaintiff, but only that it “claimed title” thereto, was properly overruled.

2. The question as to the sufficiency of description of property in a reservation-of-title contract is one of law for the court; that of the actual identity of the property is one of fact. First Nat. Bank v. Spicer, 10 Ga. App. 503 (73 S. E. 753). In the instant case the latter proposition was not in dispute. The properly recorded reservation-of-title contract was not void on aceormt of uncertainty in the description, where by the fcrms of the instrument the property was referred to as a “truck,” “received of the White Company of Cleveland, Ohio, and having a usual place of business at Atlanta,” and more particularly identified as “Model 15 Chassis No. 70477.” While it is true that the principle of law to the effect that parol evidence may be employed even by persons at interest other than parties to the contract, to aid in identifying the property covered by the lien (Thomas Furniture Co. v. T. & C. Co., 120 Ga. 879, 48 S. E. 333) applies only in those cases where the instrument provides within itself some means or method by which such extrinsic evidence can be employed and its range limited (Thomas Furniture Co. v. T. & C. Co., supra; Reynolds v. Tifton Guano, Co., 20 Ga. App. 49, 51, 92 S. E. 381), yet the present instrument, when considered as a whole, indicated a sale with reservation of title by the White Company of Cleveland of a specified model of truck, the chassis of which bore a designated number, and thus sufficiently indicated the identity of the property covered by the lien (Rountree v. Chrisman, 20 Ga. App. 815, 93 S. E. 511), and this is_ true although it might not in terms and specifically designate the truck sold by the White Company as a “White truck,” since it appears from the record that the machine was a White truck manufactured by the White Company, and since it appears from the instrument that this particular model with this particular number was purchased of the White Company, the instrument itself must be taken as providing a sufficient and certain means of supplying by parol whatever additional proof of identity might be required, if any were in fact required. Thomas Furniture Co. v. T. & C. Co., supra.

Decided April 10, 1925.

Trover; from city court of Brunswick—Judge Butts. July 14, 1924.

B. B. Meader, for plaintiffs in error.

Smith, E.ammond & Smith, Bennet, Twitty & Reese, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    15880.
    Davis v. Davis.
   Jenkins, P. J.

In a contest for appointment as administrator, -“if there be several of the next of kin equally near in degree, the person selected in writing by a majority of those interested as distributees of the estate, and who are capable of expressing a choice, shall be appointed” (Civil Code of 1910, § 3943 (3)); and if the ijerson thus selected be competent, qualified, and disinterested (Popwell v. Nail, 27 Ga. App. 97, 107 S. E. 364), neither the ordinary nor the jury on appeal has any discretion in the matter (Mandeville v. Mandeville, 35 Ga. 243 (3), 247) ; nor is such fitness to be measured and determined by a mere speculation that on account of business inexperience the person thus designated might waste the estate (Maddox v. Maddox, 27 Ga. App. 369, 108 S. E. 304); yet, on the other hand, the absence of legal fitness does not necessarily imply a lack of morality or good sense, but the issue of legal fitness, when submitted to the ordinary or to a jury on appeal, is to be tried and determined in the same way and under the same regulations as other issues of fact; and in passing upon such question they can properly consider all the proved facts and circumstances which might reasonably lead them to believe that the interest of the person so selected is nevertheless so adverse to that of the estate as would likely jeopardize its interest as against the rights of others having an interest therein. Moody v. Moody, 29 Ga. 519; Chalker v. Thornton, 31 Ga. App. 791 (3) (122 S. E. 244). There being no complaint of any error of law except than that a verdict in behalf of the caveator was demanded, this court is unable to say as a matter of law that, under all the facts and circumstances testified to in behalf of the defendant in error, the verdict sustaining the judgment of the ordinary and approved by the trial judge, which necessarily involved the question as to the legal unfitness of the' caveator, was without sufficient evidence to support it.

Decided April 10, 1925.

Appeal; from Thomas superior court—Judge W. E. Thomas. July 19, 1924.

Thomas K. Davis applied to the ordinary of Thomas county for letters of administration on the estate of his father, IT. C. Davis. James M. Davis, a brother of the applicant, interposed a caveat, asking for his own appointment as- administrator, and three of the six children of the decedent joined him and expressed their choice of him in writing. The other,heirs appear not to have expressed a choice.' On the trial of the case, on appeal, evidence was introduced to show the fitness of the caveator. Thomas K. Davis testified: “I am a son of IT. 0. Davis, deceased, and was appointed administrator on said estate by the ordinary, and the same was appealed to this court by my brother, James M. Davis, .the caveator, who is not a fit person to be appointed administrator, because there [are] certain debts that he wishes charged to the estate and paid by the estate that should not be charged to the estate.” He testified that James M. Davis told him that an account of M. C. McManeus, dated September 26, 1922, for $258, o. k.’d by James M. Davis, should be paid by the administrator of H. C. Davis, and that a note for $12.19, signed by James M. Davis and T. K. Davis, payable to the Bank of Ochlocknee, should be charged to the estate, and insisted that the administrator pay this bill and note from funds of his father’s estate. He testified also that the account of M. C. McManeus was for material and labor in repairing a certain Buick automobile, the property of James M. Davis, and that IT. C. Davis, deceased, did not own an automobile at that time; that James M. Davis had mortgaged to the Bank of Ochlocknee a pair of mules that belonged to the estate, and that questions as to this paper were pending in the city court of Thomasville, and the court had not passed on the issue as to whether the mules belonged to said James M. Davis or to the estate of H. C. Davis; and that a majority of the distributive heirs had selected James M. Davis in writing, to be appointed administrator. The following documentary evidence was introduced: Account of M. C. McManeus for $258.08, dated September 26, 1922, and o. k.’d by James M. Davis, for work done and material furnished in repairing a Buick automobile, the items of which were of dates subsequent to the mortgage mentioned; note dated May 23, 1922, and payable to the Bank of Ochloclmee, July 3, 1922,.for $12.19, signed by James M. Davis and T. I£. Davis; mortgage made by James M. Davis to Bank of Ochloeknee, covering two mules and one Buick automobile, dated November 8, 1920, for $413.84; mortgage execution issued from the city court of Thomasville, showing by entries of the sheriff thereon that the Buick automobile mortgaged to the Bank of Ochloclmee was sold under this execution as the property of James M. Davis.

Judgment affirmed.

Stephens and Bell, JJ., concur.

P. G. Andrews, for plaintiff in error.

II. J. MacIntyre, contra.


text:
    16060.
    Bugg, receiver, v. Huffman.
    Decided April 10, 1925.
    Action for damages; from Colquitt superior court—Judge W. E. Thomas. November 11, 1924.

      Erie B. Aslcew, for plaintiff in error.

      Humphreys & BeLoache, contra.
   Stephens, J.

This being a suit against a railroad company, to recover damages for injuries to stock belonging to the plaintiff, and it being clearly inferable from the evidence that the stock were injured by a train of the defendant and were of the value found in the verdict for the plaintiff, and the evidence being conflicting as to whether, at the time of the injury to the stock, the engineer’s vision was so obscured by rain that the stock could not be seen by him in time to avert the injury, although the injury happened in the nighttime, and the evidence further authorizing the inference that the engineer could, by the exercise of due care, have observed the dangerous situation of the stock in time to prevent the injury, the verdict found for the plaintiff was authorized. The cases of Ga. R. & Banking Co. v. Wall, 80 Ga. 202 (7 S. E. 639), and Atlantic Coast Line R. Co. v. Thomas, 10 Ga. App. 45 (72 S. E. 514), are clearly distinguishable.

Judgment affirmed.

Jenkins, P. J., condors. Bell, J., disqtoalified.


author: Bell, J.

text:
    14495.
    Atlantic Coast Line Railroad Co. v. Singletary.
    Decided April 11, 1925.
    Action for damages; from Clinch superior court—Judge live presiding. February 24, 1923.

      Bonnet, Twitty <£ Reese, Drawdy & Iiuxford, for plaintiff in error.

      G. E. Hay, E. K. Wilcox, contra.
   Bell, J.

This case is controlled by instructions received from the Supreme Court in answer to a question certified. See Atlantic Coast Line R. Co. v. Singletary, 159 Ga. 805 (126 S. E. 794) .

Judgment affirmed.

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