text:
    15939.
    COPELAND v. THE STATE.
    The charge of the court as to reasonable doubt and as to the sufficiency of circumstantial evidence was not subject to the exceptions taken.
    The charge as to the burden to establish the defense of alibi was not error. The verdict finding the accused guilty of arson was authorized by the evidence.
    Decided December 9, 1924.
    Indictment for arson; from Emanuel superior court—Judge Hardeman. August 28, 1924.
    Application for certiorari was denied by the Supreme Court.

      F. II. Bajfold, for plaintiff in error.

      Walter F. Grey, solicitor-general, contra.
   Luke, J.

1. - The court instructed the jury as follows: “When arson is charged, the burden is on the State to show, either by direct or by indirect or circumstantial evidence, or by some circumstantial evidence satisfactory to the jury, that the house was actually burned by some criminal agency. Second, the burden is on the State to show that the man the State says did it was the man that did it. Now, when the State does-that, if the defendant’s evidence is insufficient to raise a reasonable doubt in your minds, and the State shows those two things beyond a reasonable doubt, that is all the law requires, and you would be authorized to convict.” In view of that part of the instruction which required the State to show “those two things beyond a reasonable doubt,” this charge was not subject to the criticism that it excluded from the consideration of the jury any reasonable doubt that might arise from evidence introduced by the State or from the entire evidence. Especially is this true when the excerpt here complained of is considered in the light of the entire charge and of the very full and fair statement therein of the rule with respect to any reasonable doubt arising from the evidence or from the lack of evidence. .

2. The court instructed the jury as follows: “The rule at last is this, in a criminal case: not that the testimony at which the conclusion points may be false, but are all the facts and circumstances sufficient to satisfy your minds and consciences to a moral and reasonable certainty and beyond a reasonable doubt? If it does, you would be authorized to convict; if it does not, you ought to acquit.” The omission to add in immediate connection with this part of the charge the further instruction that the jury must be satisfied of the defendant’s guilt to the exclusion of every other reasonable hypothesis affords no cause for á new trial, even though the case was dependent wholly upon circumstantial evidence, the court having fully and fairly instructed the jury elsewhere in the charge touching the weight and sufficiency of such evidence. Young v. State, 95 Ga. 456 (3) (20 S. E. 270).

3. The accused having set up the defense of alibi, the court did not err in instructing the jury that the burden was upon him to establish that defense “by a preponderance only, or greater weight, of the evidence,” since, immediately after such charge, the court instructed the jury to consider all the evidence offered, including that as to alibi, in determining whether the evidence as a whole was sufficient to convince them of the defendant’s guilt beyond a reasonable doubt. Bone v. State, 102 Ga. 387 (2) (30 S. E. 845).

4. The evidence authorized the verdict, which has the approval of the trial judge, and for no reason assigned was the judgment overruling the defendant’s motion for a new trial erroneous.

Judgment affirmed.

Broyles, G. J., and Bloodiuorth, J., concur.


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    15944.
    MILLS v. THE STATE.
    The first count of the accusation, alleging that the accused, “being a' dealer engaged in selling cigarettes and cigars at retail,” failed “to affix to each package of cigarettes and to each box, package, and other container of cigars, a stamp and stamps, furnished by the Commissioner of Revenue of Georgia, evidencing the payment of the tax of ten per centum of the sales at retail of each package,” etc., was subject to demurrer on the ground that it failed to charge a sale or offer to sell. The second count was not subject to the demurrer.
    Decided December 9, 1924.
    Accusation of misdemeanor; from city court of Bainbridge— Judge Spooner. September 19, 1924.
    The first count of the accusation “charges and accuses A. H. Mills with the offense of a misdemeanor, for that the said A. H. Mills, on the 3d day of September in the year 1924, in the county aforesaid, did then and there unlawfully and with force and arms, being a dealer engaged in selling cigarettes and cigars at retail, fail to affix to each package of cigarettes and to each box, package, and other container of cigars, a stamp and stamps, furnished by the Commissioner of Bevenue of Georgia, evidencing the payment of the tax of ten per centum of the sales at retail of each package of cigarettes and each box, each package, and each container oí cigars, imposed and required by the laws of Georgia, and did fail to cancel such stamps before said cigarettes and said cigars are offered for sale; contrary to the laws of said State, the good order, peace, and dignity thereof.”
    The second count “charges and accuses A. H. Mills with the offense of a misdemeanor, for that the said A. H. Mills, on the 3d day of September in the year 1924, in the county aforesaid, did then and there unlawfully and with force of arms, being a dealer engaged in selling cigarettes and cigars at retail, sell and offer for sale cigarettes and cigars at retail without first paying the tax of ten per centum of the sales price at retail of each package of cigarettes, and each cigar sold and offered for sale by such dealer, as required by the laws of Georgia, and without affixing to each package of cigarettes and to each box, each package, and each other container of cigars, a stamp and stamps furnished by the Commissioner of Eevenue of the State of Georgia, evidencing the payment of the tax of ten per centum of the sales price at retail of each package of cigarettes and each cigar sold by such dealer, as required by the laws of Georgia, and without cancelling such stamps before said cigarettes and cigars were offered for sale, as required by the laws of Georgia; contrary to the laws of said State,” etc.
    The defendant demurred to the first count on the ground that no crime is charged therein; that “the law simply makes a failure to stamp or to cancel such stamps prima facie evidence of an illegal sale of such cigars and cigarettes, but the law does not make it a crime to fail to attach stamps or to cancel the same; and said count fails to charge a sale or offer to sell.” To the second count the defendant demurred on the ground that it' “does not charge a crime, and simply pleads the prima facie evidence of the State.” To each count the defendant demurred on the ground that it fails to allege what box, package, or container was not stamped, or what stamps on each package were not cancelled as required by law, and fails to allege to whom the cigars or cigarettes were sold.

      T. 8. Hawes, for plaintiff in error.

      M. E. O’Neal, solicitor, contra.
   Bloodworth, J.

The accusation in this case is based upon the act “to levy a tax upon dealers in cigarettes and cigars, . . to require the use of stamps as evidence of the payment thereof,” etc., approved. August 15, 1923 (Ga. L. 1923, p. 39); amended 1924 (Ga. L. 1924, p. 25). This statute, being penal, must be strictly construed. The gist of the offense, as shown by the act itself, is the selling or offering to sell cigarettes or cigars “without complying with the provisions of this act.” What are the provisions of the act the violation of which is made penal? (a) The person, firm, or corporation accused must be engaged “in selling cigarettes and cigars at retail.” (b) “It shall be the duty of each dealer to affix to each package of cigarettes and each cigar a stamp, or stamps, furnished by said comptroller-general, evidencing the payment of the tax imposed by this act, and to cancel such stamps, before such cigarettes or cigars are offered for sale.” (c) “Any dealer who shall sell, or offer for sale, cigarettes or cigars without complying with the provisions of this act, shall be guilty of a misdemeanor and upon conviction shall be punished as provided by section 1065 of the Penal Code of 1910.”

Before an accusation under this act will be good, all of the three foregoing things must be alleged therein. This1 being true, as it is not alleged in the first count that the accused sold or offered for sale cigarettes or cigars, that count alleged no crime, was subject to the demurrer filed thereto, and should have been stricken.

The second count was not subject to either ground of the demurrer filed thereto. The accused was charged with a statutory offense, and the accusation uses substantially the language of the statute, and is so plain that the nature of the offense charged can be easily understood by the jury, and is sufficiently full and specific to meet all the objects requiring particularity in setting out an offense, enumerated by the Supreme Court in Wingard v. State, 13 Ga. 400 (2). See DeWitt v. State, 27 Ga. App. 644 (109 S. E. 681), and eases cited in the opinion.

Judgment affirmed in part, and reversed in part.

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


author: Broyles, C. J.

text:
    15945.
    RICH v. THE STATE.
    1. “Though, the person outraged swears that the crime of rape was actually committed by the prisoner, yet where an attempt is made to impeach her testimony, and her age and the circumstances surrounding the criminal act render her testimony on this subject doubtful, the jury may disregard it and find tlie accused guilty of an assault with intent to rape, there being overwhelming evidence of such assault.”- Jones v. State, 68 Ga. 760 (4). Under this ruling- and the facts of the instant case, the verdict of assault with intent to rape was authorized, and the court did not err in charging the jury upon that offense.
    2. Exception was taken to the following excerpt from the charge of the court. “The jury is bound exclusively to the evidence that has been introduced on the stand and allowed by the court, either oral or such other evidence admitted for your consideration to go to the jury, and applying these rules which I have given you in charge.” 'The sentence immediately preceding this excerpt was, as follows: “A juror can never use anything he may know himself respecting the ease, or respecting the facts in the ease, or the circumstances—you can’t use that—a jury can never be governed by anything called public sentiment.” In view of this context, and the fact that the court had correctly instructed the jury upon the weight to be given the defendant’s statement, the excerpt is not subject to the criticism that it excluded from the consideration of the jury the defendant’s statement. See, in this connection, Gobi v. State, 11 Ga. App. 52 (1 a) (74 S. E. 702); Bragg v. State, 15 Ga. App. 623 (4) (84 S. E. 82) ; Dimn v. State, 18 Ga. App. 95 (4) (89 S. E. 170).
    3. The verdict being for an assault with intent to rape, it is immaterial whether there was error in the charge upon the law of assault and battery.
    4. In a trial for rape, where the verdict is for an assault with intent to rape, it is no ground for a new trial that the testimony of the alleged victim was not corroborated. IVade v. Slate, 27 Ga. App. 650 (2) (109 ,S.'E. 511), and citation. Under this ruling it is immaterial whether the judge correctly charged upon the law of corroboration.
    5. The other grounds of the motion for a new trial are without merit.
    Decided December 9, 1924.
    Rehearing denied January 15, 1925.
    Conviction of assault with intent to rape; from Union superior court—Judge J. B. Jones. September 13, 1924.
    Application for certiorari was made to the Supreme Court.

      J. G. Collins, B. P. Gaillard Jr., V. M. Waldrup, C. J. Wellborn, for plaintiff in error.

      Robert McMillan, solicitor-general, contra.
   Broyles, C. J.

The first headnote alone needs elaboration. The defendant was tried under an indictment charging rape, and was convicted of an assault with intent to rape. The undisputed evidence in the ease shows that on December 22, 1923, Docia Thompson, who had just turned eighteen, years old, attended, in company with Mattie Burns and two other girls, a Christmas-tree celebration at Ivy Log Schoolhouse in Union county; that the defendant was also there; that when the. party broke up, the defendant and Docia started walking along the public road towards her home, and that Mattie Burns and Letha Toivnsend were walking a little distance in front of them; that when they came to a little trail that went through the woods, Mattie and Letha took it, but the defendant and Docia continued in the road. Docia testified that when the girls had gotten out of sight, the defendant said to her, “Let’s stop and talk a whilethat it was raining a little, and she said, “I can’t. Letha will be going on 'and leave me, and I have to stay with them.” Docia’s testimony continued as follows: “Well, he grabbed me, and I tried to get away and asked him to quit, and said, “Please don’t,’ but he paid no attention to me. He grabbed hold of me and pushed me back and threw me down, and I pulled his hair and pulled out a right smart I think, and I picked up a rock—I would not say for sure it was a rock—and I hit him on the head with the rock several times, but he did not quit, and then I commenced screaming and holloing, but he did not turn me loose. Was on the ground when I hit him, that was the only way I had of helping myself by using my hands; . . was dressed in a brown silk dress and a brown coat, had on underclothing, had on a white petticoat. When he threw me down and at the time I pulled his hair he was on me. I don’t know for sure that he had my clothes up, but 1 suppose he did. My clothing were up. I did not pull them up. I reckon Clovis Eich pulled them up; there was nobody else there. My dress was torn up and ruined. He penetrated my privates with his privates. It was not with my consent. Only had my hands to protect myself. I took hold of his privates with my hand and pulled it away from me. When I got up I started to run, and he grabbed me by the coat, and I pulled loose and left him standing there, and he holloed to me and said to wait there, and I just went on. A button was torn off my coat. I lost my hair net there at that place. There was considerable scuffling there between me and the defendant. I tried to get away from him and left him standing there, left him quick as I could get away. I never looked back. The last I saw of him he holloed, I looked back and he was standing there at the same place. I was going home. The first person I saw after that was Mattie Burns; told her about the trouble. I went on down the road that Mattie went and stopped at her house, and then went home. I had on Letha’s cloak. I stopped at Mattie Burns’ to wash my face; face was muddy. My clothes and underclothes were also muddy. This mud was gotten on me at the place where he made the assault on me. Miss Burns was at Ely Daniel’s. Prom Miss Burns’ I went on home. Don’t know when I got home. It was before dark. They were all there in the house, and I went in and pulled off my things. I was wet, and when I done that it was getting dark. I changed my clothes. I did not tell my father and mother at that time. The reason was that I knew they were against me going with this young man. That was the reason I did not tell my parents. It was, I suppose, ten minutes after the assault before I saw Miss Burns, I guess, I don’t know. She was the first person I saw after the assault. I never saw any one in sight at the time of the assault.” The record then proceeds as follows: “The witness was shown a cloak and she testified that it was the cloak she had on, and there is still some mud on the cloak; it was muddy all over at the time. But the witness has cleaned some of the mud off because it was a cloak she borrowed that day to match her brown dress. The mud now on the cloak was some that was gotten on it at the time of the difficulty. The witness was also shown a dress, and she testified that it was the dress she had on at the time of the assault. ‘The dress was torn by Clovis Eich I reckon. It was torn at the time the assault was made.’ Witness was presented with underskirt and said it was the one she had on on the occasion in question, and it has mud on it that was gotten there at the same time. Witness was shown a button that she said came off the’ cloak and that it was lost at the same place and at the same time; says that she did not know it was lost until they found it. It was at this place that the button came off the coat and was lost at this time. Witness says .that she saw the hair net afterwards as they came on to the trial that morning. ‘Bill Davenport, I think, found it and I put it in my pocket. It is the hair .net I had on at that time. I was not present at the time the hair net was found.’ ”

On cross-examination Docia admitted that she first told her father and mother about the assault on the 25th of December (three days after the alleged assault), and that she at first swore out a warrant charging the defendant with an assault with intent to rape; that at the preliminary trial she testified, that when she saw Mattie Burns shortly after the assault, Mattie asked, “What makes you so muddy?” and she said, “1 fell down;” and as they went on a little further Mattie wanted to know how she came to be so muddy and her clothes torn, ahd she told -Mattie that as she went on that morning there was a mud hole that she stepped across, and she tore her clothes; first told Mattie-that she fell down and when Mattie asked the second time why her clothes were torn, she told Mattie that Clovis Rich threw her down, and Mattie asked, “did he get to do what he wanted to do ?” and she said, “No.” “On that trial I swore that I went with my father to the home of 0. W. Thompson, justice of the peace, and signed an affidavit charging the defendant with an assault with intent to rape; testified that I knew the difference between doing a thing and attempting to do it. . .

When I told Mattie Burns that the defendant did not accomplish his purpose, I meant that he did not finish. There was a penetration.”

Mattie Burns in her testimony corroborated the testimony of Docia as to attending the Christmas celebration, and as to the defendant and Docia walking together towards Docia’s home, and as to their getting out of sight of her. This witness swore that about an hour afterwards she saw Docia again; and she testified as follows : “When I saw her coming down the road I did not recognize her. The reason was when I last saw her with Clovis Rich she had on a dark brown dress, and as she came on down the road it appeared to be a white dress, but that proved to be her underskirt. Her underclothes were muddy and the coat she had on was muddy. Her dress was very muddy. She appeared to have been crying and looked nervous. She came up and I saw there was something wrong with her dress, it was torn and was muddy, and she appeared to be crying and looked to be very nervous, and I asked her what was wrong. Her head was muddy. She said to me then that she fell down at the time there at Mr. Daniel's. We went on down the road as far as my home, and she stated that she did not tell me the truth; said she had trouble with defendant and that she did not think he was the fellow that he was. She said that he was the one that muddied her and tore her clothes. She said he took hold of her and threw her down and muddied and tore her clothes. At my house she washed the mud from her hands and face. At first she said she fell down, and then I said to her, after she told me different, to go home and tell her father, and she said she did not know what to do. Asked her if the defendant accomplished his purpose, and she said he did not. ”

Several witnesses testified that a few days after the alleged assault they examined the place where the alleged assault occurred, and that there were signs of scuffling and a struggle on the muddy ground, and the imprint of a body in the mud. One witness testified that he also saw the imprint of a head in the mud, and the footprints of a man and a girl. Another witness testified that he saw signs, of a struggle upon the ground and an imprint that looked like some one had been on the ground, and that he saw also where a toe had been dug in the ground. “Somebody had their toe stuck in the ground—looked like some one was trying to get a toe holt.” A witness testified that he “found a button there, the button in evidence.” There was also testimony that a hair net had been found at the scene of the alleged assault. Docia testified that she wore no hat on the day in question, and that after the assault her head was muddy, and that she lost a hair net in the struggle.

The defendant in his statement to the jury said that he accompanied Docia from the Christmas-tree celebration; that they were walking in the public road, and that he had to help her across a mud hole, “and we got on the bank of the road and we came to where there was a stump on the side of the road, only a few inches from the bank of the road, and I was walking arm in arm with her, and I fell behind and let her pass the stump, and I slipped and started to fall off, and naturally grabbed hold of her, and then we both fell off the bank and down in the road. I rose up as soon as I could and helped her up. If her clothes were torn and in the condition they are now, it might have happened then, but I never noticed it then—I never noticed her clothes being torn. We both goj; á little bit muddy, and we walked out a ways in the road there, and she says, Tt looks like it is going to rain hard/ and says, ‘Would you mind running down to your house and getting your car and carrying me home ?’ And she also said, T don’t want to be seen like this;’ and I told her that I would do that. . . I went on down to the house, only two or three hundred yards, and she said she would wait until I got back, and when I got there I found out I couldn’t run the car, it wasn’t fixed, and I went back up to the road to tell her and she wasn’t there. . . I learned that she 'had first swore out a warrant charging assault with intent to rape, and later a warrant charging rape, and I was advised by friends to get out of the neighborhood until they could investigate this charge and get up evidence, and then I intended to come back and face trial. On Friday, December 28th, I took the train at Eegal, North Carolina, and when I got on the train at the depot the deputy sheriff of this county was on the train, and he put me under arrest, and we got off at Andrews and got a Ford automobile and started back, and I says, 'What right'have you got to come in North Carolina and arrest me?’ And he said he had a right to go anywhere, and I thought he was out of his jurisdiction and I was out of Georgia, and I knew he was a Georgia officer, and I didn’t feel under any obligations to go back with him, and I happened to know one of the fellows in the front seat, and I spoke to him, and' while the ear was going very slow, running in low gear, I just opened the door and stepped out and run off. On the following day, December 29th, I got off the train at Marjwille, Tennessee, and was walking around the town, and was arrested and locked up. When Sheriff Jones came after me he asked me if I would go back without requisition papers, and I told him I would. Now, I am not guilty of this charge. I made no assault on that girl. I never attempted to rape her nor raped her.”

An uncle of the defendant testified that on the day of the alleged assault he saw the defendant and a girl, who was unknown to him, walking arm in arm upon the public road, and that he saw them fall off the bank into the road; that there was a stump on the bank of the road, and that a trail ran between the stump and the road, and that they were walking the trail single file, the girl in front, when “all of a sudden they fell in a pile in the road. They got up and got on the bank. Defendant came on down across the woods into the trail and I spoke to him. He was muddy and I asked him if he had been taking a swim in the road. He laughed and I asked him why he did not go on home with her, and he said he was going home and get his ear and take her home. . . After they fell I don’t know where the girl went, did not see her leave; . . saw them get up. . . I saw the girl get up from the road on the bank. . . I was present- at the commitment trial, was not sworn as a witness.” This witness admitted on cross-examination that he had subpoenaed witnesses in the case and had conferred with the defendant’s counsel, and that he had studied law.

The State introduced in evidence the statement made by the defendant on the preliminary trial. In this statement he made the following explanation about the alleged accidental fall in the mud: “We were passing along the public road returning towards her home, and near Mr. Daniel’s.residence, the road being muddy at this place, I was aiding her across the muddy part of the road so as to get on drier ground when we both slipped and fell, and as I fell I naturally .caught hold of her, and we both reached the ground together. I immediately arose and helped her to her feet and carried her across the road to the dry ground.”

It will be noticed that in this first statement (which was made about three months before his statement to the jury, and when his memory about the events was fresher than at his trial) he said nothing about their walking single file along the trail on the bank between the stump and the road, or about their falling off the banlc into the road. On the contrary'-, he stated that they slipped and fell while they were crossing the road, and that he helped her up and carried her across the road to the dry ground. In view of these material contradictions between the two statements, the jury were amply authorized to reject both statements, and also to reject the testimony of the defendant’s uncle about seeing them fall off the bank into the road.

Dpon a trial under an indictment charging rape, it is well settled that where the evidence demands a finding that the carnal knowledge was realized, and the only possible question is as to the force and the consent, a verdict for an assault with intent to rape is unauthorized (Kelsey v. State, 62 Ga. 558); and where the alleged victim is a mature woman and testifies that her sexual organ was penetrated by the sexual organ of the accused, and there is no such material contradiction in her testimony, nor any such contradiction between her testimony and the other evidence, as would have authorized a finding that only an assault with intent to rape had been committed upon her, a verdict for that offense is contrary to law and the evidence. Welborn v. State, 116 Ga. 522 (2) (42 S. E. 773). However, where the alleged victim, as in the instant case, a. young and innocent country girl, testifies that the accused, with violence and force; and against her will and consent, threw her upon the ground, tore her clothing, and made a violent assault upon her, that she struggled and resisted and tore out some of his hair, and struck him with a rock, and finally escaped and ran away before he had accomplished his purpose, her testimony that during the struggle and assault his privates had penetrated her privates did not demand a finding that the offense of rape had been committed upon her, where it also appeared in the evidence that soon after the assault and on the same day she told Mattie Burns, the first person she met, after the assault, that the accused had not accomplished his purpose, and where several days later she swore out a warrant charging the accused with the offense of assault with intent to rape.

In view of all the evidence, direct and circumstantial, this court can not hold that the jury were not authorized to conclude that this young girl, who is presumed to be innocent and virtuous until the contrary is shown (and it was not so shown in this case) was mistaken when she testified that her privates had been penetrated by the defendant’s privates. Under the excitement and terror occasioned by the defendant’s violent assault upon her person and virtue, when she was screaming and struggling to throw him off, and pulling his hair, and striking him with a rock, and being ignorant and innocent concerning the act of sexual intercourse, she might have thought that his sexual organ had penetrated her sexual organ when it was merely violently pushing against it and causing her pain, or had penetrated her rectum, instead of her sexual organ. In such a struggle such a supposition is not improbable. In other words, the jury were authorized to find that this innocent little country girl had not been raped, but that she had been violently assaulted with intent to rape. See, in this connection, Jones v. State, 68 Ga. 760 (4); Dalton v. State, 27 Ga. App. 288 (108 S. E. 122); Byrd v. State, 28 Ga. App. 504 (111 S. E. 924); Whiddon v. State, 31 Ga. App. 776 (4) (122 S. E. 243).

The decisions cited and relied on by the plaintiff in error are distinguished by their particular facts from this case. In Kelsey v. State, supra, the alleged victim (as shown by the original record of file in the office of the clerk of the Supreme Court) was a grown woman, 22 years old, and, at the time of the alleged rape, was engaged to be married to the accused, and she testified positively and unequivocally that the complete act of sexual intercourse had been accomplished; and there was no conflict in her testimony as to this question, and no other evidence, direct or circumstantial, tending to cast a doubt upon this part of her evidence. The accused in that case did not deny the fact of sexual intercourse. Iiis sole defense -was that it was done with her consent. In Welborn v. Stale, supra, as pointed out in Byrd v. State, supra, the alleged victim testified positively and unequivocally that the accused, by force and violence, and against her will and consent, had sexual intercourse with her, and there were no such material contradictions in her testimony, nor such contradictions between her testimony and the other evidence, as would have authorized a finding that only an assault with intent to rape had been committed upon her, but, on the contrary, her testimony demanded a finding that the defendant had fully accomplished the act of sexual intercourse with her, and that he was guilty of rape.

In the instant case it clearly appears from the brief of the evidence, and especially from the cross-examination of the prosecutrix, that the defense was contending before the court and jury, first, that no offense against Docia had been committed by the accused; and, second, that if any offense had been committed, it was an assault with intent to rape, and not rape. The first contention was negatived by the evidence as to the girhs torn and muddy clothes, the signs of a violent struggle upon the ground, and the imprint of a head in the mud, and mud upon her head, her tearful and nervous condition, and the flight of the defendant from the State, soon after the warrant against him was issued, and his escape and second flight from the officers, after he had been arrested in North Carolina. There remained then but one issue in the case, to wit, whether the defendant had committed rape or an assault with intent to rape; and under all the facts of the case this court is of the opinion that the jury were amply authorized to find that the girl was mistaken when she testified that her privates had been penetrated by the privates of the defendant, and to return a verdict of an assault with intent to rape.

Judgment affirmed.

Lulee and Bloodworlh, JJ., concur.


author: Bkoyles, C. J.

text:
    15948.
    Buffington v. The State.
   Bkoyles, C. J.

1. There is no merit in the ground of the motion for a new trial which alleges that the court erred in overruling a motion (made when the case was called and before the signing.of the plea) to disqualify the solicitor pro tern, from proceeding with the prosecution, on the ground that he was related within the prohibited degree to the prosecutor of the case. See Pinkney v. State, 22 Ga. App. 105 (95 S. E. 539), and citations.

Decided December 9, 1924.

Accusation of possession of liquor; from city court of Floyd county—Judge Bale. September 26, 1924.

Application for certiorari was denied by tbe Supreme Court. The ground referred to in paragraph 1 of the decision is as follows: “1. When said case was called and before signing the plea, the defendant’s counsel made a motion to disqualify Mr. Alex. Harris from proceeding with the prosecution of the case, on the ground that he was related within the prohibited degree to Mr. C. I. Harris, the prosecutor in this case. It was admitted that Mr. James Maddox, the solicitor of said court, was absent, and that Mr. Alex. Harris was duly appointed solicitor pro- tern, to act in his place during the term of court, and that Mr. Alex. Harris was a nephew of the said C. I. Harris, prosecutor in this case. The court overruled the motion; which ruling is assigned as error. Movant insists that the same Mr. Alex. Harris was disqualiñed to act as solicitor or solicitor pro tern, in said case, because he is related to the prosecutor in said case." The accusation was signed by James Maddox, solicitor, and by C. I. Harris, prosecutor.

2. Evidence as to articles forcibly taken from the person of the accused, tending to establish his guilt of the offense of which he is charged, is admissible against him, notwithstanding the articles were discovered by an unlawful search and seizure; and this rule of evidence is not violative of the constitutional prohibition of unreasonable searches and seizures, nor of the constitutional provision that no person shall be compelled to give testimony tending in any manner to criminate himself. However, if the accused be compelled himself to produce the incriminating evidence, the evidence should be rejected as being in the nature of an involuntary admission. Calhoun v. State, 144 Ga. 679 (87 S. E. 893).

3. The fourth amendment to the constitution of the United States (relating to unreasonable searches and seizures) applies only to proceedings in the Federal courts, and not to trials in State courts. Johnson v. State, 152 Ga. 271 (1) (109 S. E. 662, 19 A. L. R. 641).

4. It is well settled, by repeated rulings of the Supreme Court and of this court, that where a ground of a motion for a new trial complains of the admission of certain evidence, a portion of which is admissible,' and the objection was to all of the evidence, the objection is too broad and the ground is without merit. In the instant case the defendant was charged with possessing intoxicating liquors, and the testimony of the arresting officer was that he arrested the accused and got three pints of whisky off his person; that the whisky was concealed in the defendant’s clothes; that he (the officer) took one pint of whisky out of the defendant’s bosom, and then made the defendant hand the other two pints to him. All of this testimony was objected to on the ground that the accused was compelled to produce the whisky. The evidence that the arresting officer himself took one pint of whisky from the person of the defendant was admissible, and this evidence alone demanded the verdict of guilty, as the evidence was not contradicted by any other evidence in the case, and was not even denied by the defendant in his statement to the jury.

5. Conceding (but not deciding) that the court erred in admitting the testimony complained of as to a certain warrant, this error was harmless, as the other evidence in the case (which was not even contradicted by the defendant’s statement to the jury) demanded the verdict.

Judgment affirmed.

Tjuke and Bloodworth, JJ., concur.

M. B. Eubanks, for plaintiff in error.

James Maddox, solicitor, contra.


text:
    15950.
    WILLIAMS et al. v. SEABOARD AIR-LINE RAILWAY COMPANY.
    The word “children” in the statute as to joint actions by husband and children for the homicide of a married woman (Civil Code of 1910, § 4424) does not include adults or a married minor daughter living with and supported by her husband.
    To such an action the two-years limitation as to actions for personal injuries applies, and the exception in section 4379 of the Civil Code (1910), as to a joint right of action where some of the persons having the right are under disability, does not apply.
    The court did not err in dismissing the petition, on general demurrer.
    Decided December 9, 1924.
    Action for damages; from city court of Eastman—Judge 0. J. Franklin. September 4, 1924.

      Roberts & Smith, II. W. Nalley, for plaintiffs.

      W. S. Mann, for defendant.
   Broyles, C. J.

Section 4424 of the Code of 1910 provides that “The husband may recover for the homicide of his wife, and if she leaves child or children surviving, said husband and children shall sue jointly, and not separately, with the right to recover the full value of the life of the deceased, as shown by the evidence, and with the right of survivorship as to said suit if either die pending the action." This statute' is in derogation of the common law and must be strictly construed, Georgia Railroad & Banking Co. v. Wynn, 42 Ga. 332; Atlanta & West Point R. Co. v. Venable, 65 Ga. 55. Denham v. Texas Co., 19 Ga. App. 662 (91 S. E. 1070),

(a) The words “child or children,” in the statute, mean minor children only. Mott v. Central Railroad, 70 Ga. 680, and citations; Coleman v. Hyer, 113 Ga. 420 (38 S. E. 962); Griffith v. Griffith, 128 Ga. 371 (57 S. E. 698). The contrary ruling by Judge Newman in Roberts v. Central of Georgia Ry. Co., 124 Fed. 471, is in direct conflict with the construction of the statute as repeatedly given by the Supreme Court of Georgia, and will not be followed by this court. The amendment to this statute in 1887 (Ga. L. 1887, p. 43) shows no reason why the Supreme Court’s construction of these words should be altered.

(b) A married child, although a minor, living with and supported by a husband, can not be joined by her father in a suit brought by him for the homicide of his wife. See, in this connection, Georgia Railway & Power Co. v. Beale, 25 Ga. App. 364 (103 S. E. 434); s. c. 150 Ga. 774 (105 S. E. 447).

2. Actions for injuries to the person shall be brought within two years after the right of action accrues. Civil Code,(1910), § 4497. (a) The provision of section 4379 of the code, that where there is a joint right of action, and some of the persons having such right are under disabilities, the statute of limitations shall not begin to run until the disabilities are removed, does not apply to a suit brought under section 4424 of the code by a husband and minor children for the negligent homicide of the wife and mother. The right of action in such a case is solely in the husband (although he must join with him in the action the minor children of the deceased), and is not “a joint right of action” within,the meaning of the statute. Statutes making exceptions to general rules must be strictly construed, and section 4379 of the' code provides for exceptions to the general rule of limitations to suits as enumerated in section 4497 of the code. Moreover, where minors are seeking to toll the statute of limitations, their interest must be such as will enable them to maintain an action in their own name. Pendergrast v. Foley, 8 Ga. 1 (3); Worthy v. Johnson, 10 Ga. 358 (54 Am. Dec. 393); Wingfield v. Virgin, 51 Ga. 139 (1).

3. In the instant case a husband brought suit against a railroad company for the negligent homicide of his wife and joined with him in the action all the children of the deceased. The petition disclosed that at the time of the homicide two of the children were minors, but that when the suit was brought only one was a minor, and she was married; and the petition, construed most strongly against the plaintiff, showed that this married child was living with and supported by her husband. The petition disclosed also that the suit was brought more than two years after the date of the homicide sued for. Under these facts and the above stated rulings, the court did not err in dismissing the petition, on general demurrer.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


author: Luke, J.

text:
    15952.
    RHODES et al. v. WINGFIELD ORCHARDS INCORPORATED
    The evidence being in conflict as to the facts upon which depended the right of the applicants to removal of the' obstruction from the alleged private way, and no error of law appearing, the judgment in favor of the defendant must stand.
    Decided December 9, 1924.
    Certiorari; from Richmond superior court—Judge A. L. Franklin. August 27, 1924.

      Pierce Brothers, for plaintiffs.

      Callaway & Howard, for defendant.
   Luke, J.

In this case a proceeding under section 825 of the Civil Code (1910) was instituted for the removal of an obstruction from an alleged private way over which the' plaintiffs claimed an easement by prescription under section 824. The ordinary rendered a judgment in favor of the defendant, a certiorari was overruled, and the plaintiffs excepted. “Before an applicant can have obstructions removed from a private way, he must not only show that there has been an uninterrupted use for more than seven years, but he must show that it is not more than fifteen feet wide, and that he has kept it open and in repair, and that it is the same fifteen feet originally appropriated.” Collier v. Farr, 81 Ga. 749 (7 S. E. 860). No error of law appearing, and the evidence being conflicting, the judgment of the court below must stand.

Judgment affirmed.

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


text:
    15954.
    Kennedy v. The State.
    Decided December 9, 1924.
    Conviction of possessing liquor; from city court of-Floyd county —Judge Bale. September 27, 1924.
    Application for certiorari was denied by the Supreme Court.

      Porter & Mebane, for plaintiff in error.

      James Maddox, solicitor, contra.
   Luke, J.

The evidence authorized the defendant’s conviction of possessing intoxicating liquors. The two special assignments of error upon excerpts from the charge of the court, when the charge is read in its entirety, are without merit. The defendant has had a legal trial, and the court properly overruled his motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodicorth, J., eoneur.


text:
    15955.
    Martin v. The State.
    Decided December 9, 1924.
    Larceny of automobile; from Fulton superior court—Judge Persons presiding. August 18, 1924.

      H. A. Allen, for plaintiff in error.

      John A. Boykin, solicitor-general, E. A. Stephens, Ralph II. Pharr, contra.
   Bloodworth, J.

Plaintiff in error was convicted of receiving a stolen automobile in Fulton county, knowing that it was stolen. The venue of such a crime is in the county where the stolen article was received with knowledge that it was stolen. There is no evidence that the accused received the stolen automobile in Fulton county, but direct and uneontradieted evidence that he received it in Forsyth county. The facts in this ease are so similar to those in Gamblin v. State, 33 Ga. App. 51 (125 S. E. 517), that the ruling in that ease and in the cases cited therein are controlling in this case. See also Gravitt v. State, 33 Ga. App. 33 (125 S. E. 503).

Judgment reversed.

Broyles, O. J., and Luke, J., coneivr.


text:
    15956.
    WOODLAND v. WOODLAND.
    This court will not pass upon a ease on a direct bill of exceptions assigning error upon the sustaining of a so-called general demurrer to a petition, where the only effect of the ruling complained of was the striking of certain parts of the petition, leaving the ease still pending in the trial court.
    Decided December 9, 1924.

      Complaint; from city court of Atlanta—Judge Eeid. September* 6, 1924.
    This case came to this court by a direct bill of exceptions assigning error upon the following order and judgment: “The within general demurrer and renewal thereof being called for hearing and after argument thereon, the same is sustained and it is ordered that all expenditures alleged to have been made prior to the granting of the divorce, June 19, 1924, be stricken from the petition. Plaintiff is allowed thirty days in which to amend as to expenditures made since the 'granting of said divorce June 15, 1924. The special demurrer being called with the renewal thereof and after argument thereon, they are overruled.” It is stated in the bill of exceptions that “Plaintiff has not accepted said privilege to amend, and will not accept said privilege to amend, and said order and judgment sustaining said general demurrer to plaintiff’s amended' petition is a final judgment in said case.”

      Len B. Guillebeau, for plaintiff.

      Herman B. Bvins, Bdward G. Hill, for defendant.
   Broyles, C. J.

(After stating the foregoing facts.) Although the trial judge in his order stated that he sustained the “general” demurrer, an inspection of -the order and the demurrer clearly shows that the only effect of the order was to strike from the petition certain items of the account sued for, and to leave the suit, as to some of the items sued for, still pending in the court. It follows, that the order sustaining the so-called general demurrer was not a final judgment- in the case, and the motion of the defendant in error to dismiss the bill of exceptions is granted.

Writ of error dismissed.

Lulce and Bloodworth, JJ., concur.


author: Beoyles, O. J.

text:
    15957.
    Wiggins v. The State.
    Decided December 9, 1924.
    Indictment for manufacture of liquor; from Dooly superior court —Judge Crum. September 6, 1924.
   Beoyles, O. J.

The venue of the offense was sufficiently proved, the evidence authorized the verdict, and none of the grounds of the motion for a new trial shows reversible error.

Judgment affirmed.

Luke and Bloodworth, JJ., eoneur.

Jere M. Moore, for plaintiff in error.

<7. B. Wall, solicitor-general, contra.


author: Bboyles, O. J.

text:
    15958.
    Wiggins v. The State.
    Decided December 9, 1924.
    Indictment for manufacture of liquor; from Dooly superior court—Judge Crum. September 6, 1924.

      Jere M. Moore, for plaintiff in error.

      J. B. Wall, solicitor-general, contra.
   Bboyles, O. J.

The venue of the offense was sufficiently proved, the evidence authorized the verdict, and none of the grounds of. the amendment to the motion for a new trial shows reversible error.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


text:
    15959.
    Collins v. The State.
    Decided December 9, 1924.
    Conviction of possession of liquor; from city court of Metier-— Judge Lanier. September 30, 1924.

      Kirkland & Kirkland, for plaintiff in error.

      G. W. Turner, solicitor, contra.
   Luke, J.

The evidence amply authorized the defendant’s conviction of violating the prohibition statute. The special grounds of the motion for a new trial are without merit. The court properly overruled the motion for a new trial.

Judgment affirmed.

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


text:
    15960.
    Bugg, receiver, v. Overstreet.
    Decided December 9, 1924.
    Damages; from city court of Tifton—Judge J. H. Price. September 19, 1924.
   Luke, J.

The ground based upon alleged newly discovered evidence, not being referred to in the brief of counsel for plaintiff in error, must be treated as abandoned.

The evidence authorized the verdict, and none of the special grounds of the motion for a new trial requires another hearing of the case.

Judgment affirmed.

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

W. B. Bennel, Brie B. Askew, for plaintiff in error.

J. S. Ridgdill, R. D. Smith, contra.


text:
    15963.

      Corley v. Carolina Portland Cement Company.
    Decided December 9, 1924.
    Complaint; from city court of Greenville—Judge Eevill. September 19, 1924.

      Jones & Jones, for plaintiff in error.

      J. P. Atkinson, contra.
   Broyles, C. J.

1. It is well settled by repeated rulings of the Supreme Court and of this court, that an assignment of error upon the refusal to award a nonsuit will not be considered, where thereafter the case proceeded to a verdict in favor of the plaintiff, and the defendant’s motion for a new trial (to the overruling of which exception is taken) includes the ground that the verdict was contrary to the evidence and without evidence to support it.

2. Under the facts of the case and the rulings in Wight v. Hester, 24 Ga. 485 (4); Boehm v. Juehter, 62 Ga. 580 (2), 583 (2); Wimpy v. Gaskill, 79 Ga. 620 (2) (7 S. E. 156); Nixon v. Christie, 84 Ga. 469 (10 S. E. 1087), and Burge v. State, 133 Ga. 431 (2), 432 (66 S. E. 243), the court did not err in overruling the ground of the motion for a new trial which was based upon alleged newly discovered evidence.

3. The judge tried the case without the intervention of a jury, and the judgment rendered in favor of the plaintiff was authorized under the law and the evidence.

Judgment affirmed.

Luke and Bloodworlh, JJ., eoneur. ,


text:
    15964.
    Head v. Jordan.
    Decided December 9, 1924.
    Complaint; from city court of Polk county—Judge Tisón. September 29, 1924.

      Mundy & Watkins, for plaintiff in error.

      John X. Davis, contra.
   Luke, J.

The only assignment of error in this case being upon the judgment striking the defendant’s jilea and answer, and it not appearing that any final judgment below has been rendered, this court is without jurisdiction to entertain the ease, and the writ of error is therefore dismissed. Civil Code (1910), § 6138; Neal-Blun Co. v. Zeigler, 11 Ga. App. 273 (75 S. E. 142); Farmer v. White Sewing Machine Co., 29 Ga. App. 657 (116 S. E. 224), and cases cited.

Writ of error dismissed.

Broyles, G. J., and Bloodworlh, J., eoneur.


text:
    15967.
    PHILLIPS et al. v. THE STATE.
    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.
    Decided December 9, 1924.
    Conviction of manslaughter; from Toombs superior court —Judge Hardeman. August 29, 1924.

      Saffold & Sharpe, for plaintiffs in error.

      Walter F. Grey, solicitor-general, contra.
   Bloodworth, J.

The motion for a new trial in this case contains no special grounds. The verdict has the approval of the trial judge, and we can not say that there is no evidence to support it. Applications for new trial on the ground that the verdict is contrary to the evidence are addressed to a sound legal discretion to be exercised by the trial judge. When this discretion has been exercised and the motion for a new trial overruled, this court will not interfere, if there is any evidenca.which would justify the jury in reaching the conclusion set forth in the verdict. This is true even in cases where the evidence might be described as weak, unsatisfactory, and doubtful. The wisdom and discretion of the trial judge are sufficient for this court to endorse his judgment in cases of this character. Terrell v. State, 29 Ga. App. 285 (114 S. E. 909).

Judgment affirmed.

Broyles, G. J., and LuJce, J., concur.


author: Broyles, O. J.

text:
    15968.
    Great Union Fire & Marine Insurance Company v. Cox.
    Decided December 9, 1924.
    Trover; from Dawson superior court—Judge J. B. Jones. August 5, 1924.

      E. Smyihe Gambrell, E. G. Brannon, Underwood, Pomeroy & Haas, for plaintiff.

      Boyd Sloan, for defendant.
   Broyles, O. J.

This was an action in trover to recover an automobile. The evidence offered to show title, or the right of possession, in the plaintiff was hearsay and of no probative value, and the court did not err in directing a verdict for the defendant. No ruling upon the admissibility of evidence requires another hearing of the case.

Judgment affirmed.

Lulce and Bloodworth, JJ,, eoneur.


text:
    15969.
    Bohler v. The State.
    Decided December 9, 1924.
    Indictment for seduction; from Lincoln superior court—Judge Shurley. September 37, 1934.

      Clement E. Button, for plaintiff in error.

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

1. The excerpt from the charge of the court, complained of, when considered in connection with the remainder of the charge and the facts of the case, shows no reversible error.

2. Under the showing made by the accused in support of the ground of the motion for a new trial based upon alleged newly discovered evidence, and the counter-showing by the State, this court can not hold that the judge, the trior of the issue, abused his discretion in overruling that ground.

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

Judgment affirmed.

Luke and Bloodworth, JJ., eoncw.


text:
    15970.
    BAILEY v. BARRON G. COLLIER INCORPORATED.
    As to the misrepresentations which it was alleged induced the signing of the advertising contract sued upon, the court, under the facts of the .case, did not for any reason assigned err in charging the jury as follows: “If the defendant had knowledge as to the facts about which the alleged misrepresentations were made, if made, or if he had equal means of informing himself with reference to such facts as clients’ solicitor, he would not be entitled to avail himself of that defense, unless some fraud or artifice was practiced upon him by plaintiff’s solicitor to prevent such inquiry as would have developed the truth or falsity of such representation.”
    The verdict in favor of the plaintiff is supported by evidence.
    Decided December 9, 1924.
    Rehearing denied January 13, 1925.
    Certiorari; from Bibb superior court—Judge Mathews. September 15, 1934.

      Jones, Evins, Moore & Powers, for plaintiff in error.

      J ones, Parle & J ohnston, contra.
   Luke, J.

When this case heretofore appeared in this court (Barron G. Collier Inc. v. Bailey, 31 Ga. App. 197) it was ruled that one sued upon a contract was competent to testify that he was induced to sign the contract by the misrepresentation of material facts, made under circumstances amounting to fraud, without which misrepresentation he would not have entered into the contract. On a new trial the jury found a verdict in favor of the plaintiff. The defendant sued out certiorari. In answering the petition for certiorari the trial judge stated that the evidence adduced upon the trial was as follows: J. H. Bailey testified: that the agent of the plaintiff represented to him that there were 44 cars operated daily on regular schedule by the Macon Bailway & Light Company; that on the faith of this statement about the number of cars operated on regular daily schedule he signed the contract upon which -the suit was brought; that at that time he made no investigation, but depended upon this representation; that he subsequently discovered that the representations. were not tyue, and that, although the Macon Bailway & Light Company had 44 cars for service, there were only 28 in actual daily service; that upon discovery of this fact he canceled his contract and tendered payment in full for advertising-on the 28 cars in actual daily service; and that for this reason he did not owe for advertising on 44 cars as provided in the contract. Mr. Williamson, for the plaintiff, testified: “There was 44 cars operated regularly by the Macon Bailway & Light Company. All of these cars were carded by Barron G. Collier, and carried the card of J. H. Bailey. All of these 44 ears were subject to regular use, though all of these 44 cars did not run at .the same time. There were 34 cars operated regularly every day, and the balance were maintained as extras and for replacements. There is no distinction between cars run regularly every day and those used for replacement purposes. There is such a continuous change of the regular for replacement cars that at times each of the 44 cars are operated on regular daily schedules. It is absolutely necessary for street-railway company to have extra cars for that purpose.” Mr. Cannon, for the plaintiff, testified: “When I got Mr. Bailey to sign the contract I did not have but two copies, and these two copies were the only ones shown to Mr. Bailey, and the only two that were signed and are the copies which are in court and the ones that Mr. Bailey signed. They are in the same condition as when signed, no erasures nor changes on either of them. I did not misrepresent any facts to Mr. Bailey. Mr. Bailey had every opportunity to read and did read the contract before signing it. I did not substitute papers on Mr. Bailey, nor did I cover up any papers or practice any trick or artifice which would prevent Mr. Bailey from reading the contract. I did not tell Mr. Bailey that there were 44 cars operated every day. 1 told him there were 44 cars in service, and that he had to have about 50 cards, so as to have a few extra ones in case some got soiled or torn. The information I gave Mr. Bailey with reference to the number of cards was absolutely correct. ”

In the petition for certiorari error was assigned upon the following excerpt from the charge of the court: “If the defendant had knowledge as to the facts about which the alleged misrepresentations were made, if made, or if he had equal means of informing himself with reference to such facts as clients’ solicitor, he would not be entitled to avail himself of that defense, unless some fraud or artifice was practiced upon him by plaintiff’s solicitor to prevent such inquiry as would have developed the truth or falsity of such representation.” In answering this assignment of error the trial judge stated that “this charge .was pnade in connection with the charge on the question oE fraud and the various elements and effects of fraud, and is only an isolated part of the entire charge.” It was not error to overrule the'certiorari. We do not agree with the contention of the plaintiff in error that the charge complained of was contrary to the law of the case as announced in 31 Ga. App. 197. The charge of the court was not, for any reason pointed out, and as applied to the pleadings and the evidence adduced upon the trial of the case, erroneous. The evidence was in conflict, and the verdict in favor of the plaintiff has the approval oE the trial judge. As to the assignment of error upon the excerpt from the charge of the court, see Miller v. Roberts, 9 Ga. App. 511 (2) (71 S. E. 927).

Judgment affirmed.

Broyles, C. J., and Bloodworih, J., concur.


text:
    15972.
    Thigpen v. The State.
    Decided December 9, 1924.
    Conviction of-shooting at another; from Johnson superior court ' —Judge Kent. September 15, 1924.

      0. 8. Glaxton, B. B. Blount, for plaintiff in error.

      E. L. Stephens, solicitor-general, contra.
   Luke, J.

The evidence amply authorized the defendant’s conviction and the charge of the court was full, fair, and not subject to the criticism urged in the motion for a new trial.

Judgment affirmed.

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


text:
    15973.
    Bourquin et al. v. Bourquin.
    Decided December 9, 1924.
    Damages; from Chatham superior court—Judge Meldrim. September 27, 1924.

      Oliver & Oliver, E. W. Martin, W. W. Douglas, for plaintiffs in error.

      O’Byrne, Har bridge, Wright & Brennan, contra.
   Broyles, C. J.

1. The defendant in a case can not complain that certain abstract principles of law pertinent to his contentions were not charged, where no written request therefor was made, and where the charge of the court made clear the specific application of such abstract principles of law by enumerating all the material contentions of the defendant, and in substance instructed the jury that they should find for the defendant if any of his contentions were proved to their satisfaction. Crankshaw v. Schweizer Mfg. Co., 1 Ga. App. 363 (11) (58 S. E. 222). Under the above-stated ruling and the facts of the instant case, the grounds of the amendment to the motion for a new trial are without merit.

2. The general grounds of the motion for a new trial, not being referred to in the brief of counsel for the plaintiff in error, are treated as abandoned.

Judgment affirmed.

Luke and Bloodwortli, JJ., concur.


text:
    15975.
    Southern Railway Co. v. Beneficial Loan Society.
    Decided December 9, 1924.
   Luke, J.

Where an employee executed a written order drawn on his employer in favor of a payee therein named, directing the employer to pay out of his future wages certain sums monthly to the payee until payment of the full amount specified in the order, and, after the wages were, earned but before they were paid to any one, and before there was any written acceptance of the order, another creditor of the employee sued him and caused summons of garnishment to be served on the employer, the written order was not available to the employer as against such plaintiff to justify the payment of the wages to the payee subsequent to the service of the summons of garnishment. Usher v. Seaboard Air-Line Ry. Co., 125 Ga. 809 (54 S. E. 704); Atlanta Finance Co. v. Southern Ry. Co., 15 Ga. App. 663 (84 S. E. 147).

(а) Applying this principle to the facts of the case, the municipal court of Macon did not err in sustaining the plaintiff’s traverse of the garnishee’s answer.

(б) No other question raised by the petition for certiorari, sanction of which was denied by the superior court, is referred to in the briefs for the plaintiff in error.

Judgment affirmed.

Broyles, C. J., and Bloodioorth, J., concur.

Petition for certiorari; from Bibb superior pourt—Judge Malcolm D. Jones. September 6, 1924.

Harris, Harris & Popper, Miller■& Garrett, for plaintiff in error.

Strozier & Heaver, B. Cubbedge Snow, contra.


text:
    15976.
    Anderson v. The State.
    Decided December 9, 1924.
    Conviction of possessing liquor; from city court of Floyd county —Judge Bale. September 27, 1924.

      Porter & Mebane, for plaintiff in error.

      James Maddox, solicitor, contra.
   Bloodworth, J.

Counsel for plaintiff in error in their brief insist upon the general grounds only of the motion for a new trial. The verdict is supported by some evidence and approved by the trial judge, and this court is without authority to interfere with it.

Judgment affirmed.

Broyles, G. J., and LuJce, J., concur.


text:
    15977.
    Atlantic Coast Line Railroad Co. v. Martin.
    Decided December 9, 1924.
    Damages; from city court of Hinesville—Judge W. C. Hodges. September 26, 1924.
    Tlie suit was for the killing of the plaintiff’s black mare mule by the defendant’s train. No eye-witness of the killing was introduced by the plaintiff. The plaintiff testified: “The point where the mule was killed is . . 250 or 300 yards from the station-house or depot at McIntosh. . . The track is level and straight for about ten-miles at this point. The defendant’s right of way is cut and the bushes cleaned out.” (The defendant admitted that the track was level at that point.) “I am generally familiar with train 22 [which struck the mule] and the light it carries. I have stood ahead of the train when approaching, and it lights up the right of way. . . Being familiar with this light lighting up the right of way, I should think that any one could see a mule for one half a mile, if clear of bushes at .night. . . It is perfectly clear. . . In my opinion, from the light they carry and all, he could have seen a mule for several hundred yards.”
   Bloodworth, J.

“The plaintiff’s right to recover resting solely upon the statutory presumption of negligence, and the undisputed testimony of the engineer and fireman showing that they were in the exercise of all ordinary care and diligence, and that the killing of the plaintiff’s cow was not due to any negligence on the part of the defendant or its employees, the presumption of negligence was fully rebutted, and the recovery in favor of the plaintiff was unauthorized. Macon, Dublin & Savannah R. Co. v. Hamilton, 9 Ga. App. 254 (70 S. E. 1126); Atlantic Coast Line R. Co. v. Whitaker, 10 Ga. App. 207 (73 S. E. 34).” Atlantic Coast Line R. Co. v. Cox, 11 Ga. App. 384 (75 S. E. 268). See Whiddon v. Atlantic Coast Line R. Co., 21 Ga. App. 377 (2) (94 S. E. 617), and cases cited. Under the ruling in the foregoing cases the court erred in- overruling the motion for a new trial.

Judgment reversed.

Broyles, O. J., and Luke, J., concw.

The engineer of the train testified: “ On the night of September 5, 1922, I was running train No. 22, which arrives at McIntosh station at about 9:25 o’clock p. m. This train I was pulling from Jacksonville, Florida, to Savannah, Georgia. At the point where the mule in question was struck the railroad company’s right of way is enclosed by a standard fence, and is fenced from a point about 300 yards south of McIntosh station to Allenhurst, a distance of four or five miles. McIntosh station . . was at that time a regular stop for the train. . . About three quarters of a mile from McIntosh depot I blew my whistle for the station and began to reduce my speed in order to make the usual stop at the station-house. My headlight was burning bright and my brakes were working all right. Just before I reached the stock-gap I saw a black mule show up on the track ahead of me. I was looking straight ahead and watching for signals at the station, as I am required to do at this point. As soon as I saw this animal, which was standing on the track about five feet south of the stock-gap and within the company’s enclosed right of way, I opened the engine’s cylinder-cocks, blew the whistle cattle alarm or stock alarm, and applied the brakes more promptly, in order to stop at once or as quickly as possible. The mule was about ninety feet from the front of my engine when I first saw it. When I saw the mule I had already reduced my speed, preparatory to stopping at the station, to about twenty-five miles per hour. After seeing the mule and applying the brakes for a prompt stop in order to save the mule, the engine was running about fifteen miles an hour when it struck the mule. I could not stop my engine in time to prevent killing the. mule. There is nothing I could have done which I did not do to have avoided this accident. When I struck the mule the impact threw the mule against the side of the cattle-gap brace and partially, tore it down. The mule finally landed ten or fifteen feet north of the cattle-gap and outside of the fenced right of way.” The fireman of the engine testified: “About 9 :25 p. m., after Mr. Wingate [the engineer] had blown his whistle for McIntosh station and during the time he was reducing his speed to stop at the station, about ninety yards, inside of the fenced right of way, . . I saw a dark object show up on the track, which a little later I discovered to be a black mule. The engineer blew the cattle alarm, opened the cylinder-cocks, and applied the brakes for a prompt stop; but before he could stop the train the mule was struck by the engine at a point about five feet south of the cattle-gap and inside of the fenced right of way, and thrown against the cattle-gap brace, tearing them partially down and finally landing on the outside of the cattle-gap by the track. 1 was sitting on the fireman’s box, ringing the bell, as I am required to do approaching stations. Just as I saw this mule the engineer started blowing his whistle and setting his brakes for a prompt stop, and opened the cylinder-cocks. There was nothing either of us could do which was not done to prevent striking the mule.”

M. Price, for plaintiff in error.


author: Bloodwortii, J.

text:
    15750.
    MATHEWS v. THE STATE.
    1. There is no merit in the motion to dismiss the bill of exceptions.
    2. The court did not err in admitting in evidence the deed the admission of which is complained of.
    3. Under the particular facts of the case, the deed record, the introduction of which is complained of, was not inadmissible for any reason assigned.
    4. The court did not err in giving in charge to the jury § 771 of the Renal Code upon which the second count of the indictment was based; nor did the court err in “submitting to them the question of whether or not the defendant was guilty under the second count of said indictment.”
    5. Under the principle announced in the opinion, there is no error in the excerpt from the charge of which complaint is made in the 4th special ground of the motion for a new trial.
    6. There is evidence to support the Verdict; it has the approval of the judge who tried the case, and the motion for a new trial was properly overruled.
    Decided December 10, 1924.

      Indictment for mutilating burial ground; from Brooks superior court—Judge W. E. Thomas. June 6, 1924.
    Application for certiorari was denied by the Supreme Court.

      Branch & Snow, for plaintiff in error.

      G. E. Hay, solicitor-general, Sam T. Harrell, contra.
   Bloodwortii, J.

Only the second headnote will be enlarged upon.' The indictment contained two counts. The accused was convicted on the second count, which charges that he “did unlawfully, wilfully, and wantonly, by himself and by his agents and servants, to wit, Berry Arnold, Sam McRae, German Jenkins, James Arnold, and each of them, mutilate, injure, and destroy the private burying ground on lot of land No. 431, in the 12th district of said county, known as the ‘Old Wilson Cemetery/ by having the same cleared of all trees, flowers, shrubbery, and grave markings then and there in said cemetery, and by having said grounds plowed and prepared for cultivation, which burying ground consisted of one acre reserved in the warranty deed from J. D. Wilson to E. M. Mathews, conveying to said accused the land surrounding said cemetery, and under which deed said accused was then and there occupying said surrounding lands.” Under this count, admitted by counsel for plaintiff in error to be good, one of the tilings necessary to be proved is that the “Old Wilson Cemetery,” the burying ground in question, “consisted of one acre reserved in the warranty deed from J. D. Wilson conveying to said accused the land surrounding said cemetery.” This is a part of the description of the offense. No question of title is involved in the case. It matters not in Avhom the title to the cemetery is vested. Under the statute it is not necessary to allege in the indictment that the title to the acre reserved for the cemetery was vested in any one person. There being no allegation of title, proof thereof Avas not necessary. The question is: Was the land which was being used as a cemetery the land reserved in the deed ? - Any competent evidence to establish this fact Avas admissible. The same definiteness of description is not required as in a ease Avhere title is involved. As a part of the evidence to establish the foregoing allegation in the indictment, the deed from Wilson was admissible, although this deed had no further description of the acre reserved than that which is set out therein. In this connection see Drew v. State, 18 Ga. App. 34 (88 S. E. 716); Phillips v. State, 29 Tex. 226.

Judgment affirmed.

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


text:
    15926.
    HENDERSON v. THE STATE.
    That certain physical objects not introduced in evidence but referred to and identified by witnesses were sent out with the jury and used by them in the consideration of the ease does not require a new trial, under the facts of this case.
    Decided December 10, 1924.
    Conviction of possessing liquor; from Glynn superior court— Judge Highsmith. August 16, 1924.

      Farr & Powell, for plaintiff in error.

      Alvin 7. Sellers, solicitor-general, contra.
   Bloodworth, J.

1. When the instructions complained of are considered in the light of the remainder of the charge of the court, there is no error therein that requires the grant of a new trial.

2. A ground of the motion for a new trial is in part as follows: “That certain physical objects, to wit: basket, crocus sack, four one-half gallon fruit jars with their contents, referred to in the testimony of S. D. Lamb and L. E. Ridley, identified by them; testified to concerning, for the purpose of such identification, were never tendered in evidence, formally or otherwise, for the purpose of having their admissibility passed upon by the court, were sent out with the jury, and was used by them in the consideration of the case without any waiver on the part of the defendant or upon counsel for the defendant.” To support this ground of the motion counsel for the plaintiff in error rely upon the case of Smith v. State, 14 Ga. App. 610 (81 S. E. 817). The facts of this case distinguish it from that case. In that case it was said (p. 611) that “in the state of the record” the admissibility of the physical objects might not have been warranted.- In the case at bar the physical objects were clearly admissible in evidence. Moreover, the accused made no affidavit that she did not know that they had been sent to the jury-room. However, eliminating from the case the inspection of the physical objects by the jury, the other evidence demanded the conviction, and the fact that the jury inspected the physical objects did not harm the accused. Brannon v. State, 21 Ga. App. 328, and eases cited (p. 329) (94 S. E. 259).

Judgment affirmed.

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


text:
    14482.
    OTIS ELEVATOR COMPANY v. ROGERS.
    The charge of the court as to the duty of a master to furnish a safe place to work was not cause for a new trial.
    For no reason assigned did the court err in overruling the motion for a new trial.
    Decided December 11, 1924.
    Damages; from Eulton superior court—Judge E. D. Thomas. March 17, 1923.
    Rogers sued Otis Elevator Company for damages, and in substance alleged that, in the line of his employment as a general installer of elevators, he was engaged in work upon an elevator; that, with his helper, he was engaged in setting up a post inside an elevator-shaft; that in properly setting, bolting, and nailing the post it was necessary to have some footing inside the elevator-shaft, and it was the practice of the elevator company to have the elevator move up and down for the work, and to have the employees stand upon the top of the elevator for this purpose in order to do the work of erecting and fastening the posts, and the company’s superintendent ordered that this be done; that it was the custom and practice of the employees to stand upon the top of the elevator, especially in doing such work as erecting posts, and this way of doing the work was ordered by the superintendent; that, accordingly, the elevator was moved up so that the plaintiff and his helper could stand upon its top to-do the work he was ordered and required to do by the superintendent; that the top of the elevator consisted of a strong wire netting, stretched between and fastened to iron rods, which were to be attached with bolts firmly,, so as to make the same hold securely and prevent the top from slipping off; that, as was the custom and practice, in the exercise of ordinary care, assuming that the same would be ordinarily and reasonably safe, and as ordered by the defendant through its superintendent, knowing that the same, properly bolted, would easily hold both himself and his helper, he stepped upon the top of the elevator; that, because the defendant had negligently failed to furnish him with a safe place in which to work, and had negligently failed to bolt or in any way fasten the elevator top, but, on the contrary, had loosely laid the said top without any fastening or bolts thereon, it slipped when plaintiff stepped on it, there being no support fo;1 it, and the iron rods not being in any way bolted, and the entire work fell through, carrying plaintiff with it to the bottom of the elevator and permanently injuring him; that the defendant was negligent in failing to furnish him with a safe place at which to work, and in failing to exercise ordinary care in furnishing machinery and appliances equal in kind to those in general use, and reasonably safe for all persons who operated it with ordinary care and diligence; that “there were latent defects in this employment and in this machinery,” unknown to the plaintiff, which the defendant knew of, or should have known, and of which the defendant failed to give the plaintiff any warning whatever; that the top of said elevator upon which he was ordered to work appeared to fit properly and appeared to be in safe condition, there being nothing to suggest that it was loose in any way, and it would have required a very minute and detailed inspection on the part, of the plaintiff to have discovered that the iron rods to which the wire netting was attached were not properly bolted and fastened to the angle rods; that plaintiff was intent upon his work and absorbed in his work of erecting said posts, and had nothing to call his attention to the fact that said top was not fastened or bolted on, and such observation as he had the opportunity to and did make would not disclose any defects; that he did not know and had not equal means with defendant of knowing of the failure to properly fasten said top, and by the exercise of ordinary care could not have known thereof; that the defendant and its superintendent were negligent in furnishing him an unsafe place at which to work, in that the said top was dangerous and, being unbolted, would not bear the weight of the plaintiff in standing upon the same; that the same was the place at which plaintiff was directed and ordered to work, and that the appearance of said top, lying smoothly and evenly upon the angle irons, was deceptive, and it had the appearance of being bolted and fastened on, when as a matter of fact it was not, and the least weight or motion of the plaintiff upon the top of the elevator would cause the same to slip and fall into the shaft, which it did-upon his stepping upon, the same, and in so doing he was permanently injured. . : ■ .;,

      The defendant by its plea and answer denied generally the allegations contained in the plaintiffs suit. Upon the trial of the ease the verdict was in favor of the plaintiff. In the defendant’s motion for a new trial error is assigned upon the refusal of timely written requests to charge as follows: (a) “Under the disputed evidence in this case the plaintiff is not entitled to recover.” (6) “Under the undisputed evidence in this case no negligence has been shown for which the defendant is liable under the law of Georgia.” (c) “The undisputed evidence in this case shows that the plaintiff, T. I. Eogers, assumed the risk of the happening of the event or events which produced his injury.” (tl) “Under the evidence in this case Eadford, whose negligence is complained of, was a fellow servant of T. I. Eogers, the plaintiff, and the plaintiff, therefore, is not entitled to recover in this ease.” (e) “Under the undisputed evidence in this case, Eadford, the foreman, was a fellow servant of T. I. Eogers, the plaintiff, and there can be no recovery in this case under the evidence for any alleged act or acts of alleged negligence of the said Eadford while engaged in the performance of his duties as a servant and employee and doing the work of a servant and employee.” (/) “Under the undisputed evidence in this case it appears that the work in which the plaintiff, T. I. Eogers, was engaged was the construction or building of a system of elevators in the plant of the Bibb Manufacturing Company, at Columbus, Ga., and under the law, therefore, the plaintiff, T. I. Eogers, assumed whatever risks were incident to and connected with such work, and if any such risks caused the injuries for which he sues, he can not recover in this case.” (g) “If you believe from the evidence that the plaintiff was injured by the failure to bolt or otherwise securely fasten the top on the elevator, and if you further believe from the evidence that the failure to fasten or bolt the wire top of the elevator was the act of a fellow- servant of the plaintiff, and that failure to fasten the top of the elevator was the negligent act of a fellow servant of the plaintiff, nevertheless the plaintiff can not recover in this case, the law being that a servant of a master'can not recover damages from the master on account of the negligence, if there be such, of another servant of the master, employed about the same business as the plaintiff for the master.” (h) “If there are two ways of doing an act, one way safe and the other way unsafe, the law requires the servant to use the safe way; arid if the servant uses the dangerous way and in consequence thereof is injured, he can not recover.” (i) “If the plaintiff had the choice of securing a board to place across the top of the elevator to form a support for him to stand upon while doing his work, and failed to do so, he can not recover, provided you believe that way of doing the work was a safe way, and the way he selected was a dangerous way.”
    Error was assigned upon the following excerpts from the charge of the court: (a) “I charge you that the plaintiff in this case can not recover if his injuries were caused solely by the negligence of a fellow servant.” (5) “Where an employee is confronted with two methods of doing a certain thing, the one safe and the other dangerous, he owes a duty to his employer to pursue the safe method, and a departure from the safe method will prevent his recovery in the event he is injured; that is, any intentional or conscious departure—any departure that was inconsistent with ordinary care.” (c) “This suit is based by the plaintiff upon the alleged negligence of the defendant; that is to say, the plaintiff says that he was injured, and was injured through the negligence of the defendant, acting through its vice-principal or alter ego.” (d) “He specifies that the defendant was negligent in failing to furnish the plaintiff a safe place to work. He further says that the defendant was negligent in that it negligently failed to furnish plaintiff a safe place to work. . . He also says that the defendant was negligent in that said Eadford, the defendant’s superintendent, was negligent in [not] furnishing plaintiff a safe place at which to work.” (e) “The master is bound to exercise ordinary care in the selection of his servants, and not to retain them after knowledge of incompetency.” (/) “He (the master) must use like care (ordinary care) in furnishing machinery equal in kind to that in general use, and reasonably safe for all persons who operate it with ordinary care and diligence.” (g) “In suits for injuries arising from the negligence of the master in failing to comply with the duties imposed in the preceding section, it must appear that the master knew or ought to have known of the incompetency of the other servant.” Error was assigned also upon the rulings on objections to certain evidence. The motion for a new trial was overruled, -and the movant excepted.

      Bryan & Middlebroohs, TP. B. Tichenor, J. C. Davis, for plaintiff in error.

      Beuben B. & Lowry Arnold, B. G. Hill, contra.
   Luke, J.

(After stating the foregoing facts.) Error is assigned apon the following excerpts from the charge of the court, to wit: “He [the plaintiff] specifies that the defendant was negligent in failing to furnish the plaintiff a safe place to work. . . He further says that the defendant was negligent in that it negligently failed to furnish plaintiff a safe place to work. . . He also says tnat the defendant was negligent in that said Radford, the defendant’s superintendent, was negligent in [not] furnishing plaintiff a safe place at which to work,” upon the grounds that “the court did not at any place in its charge, as movant contends, explain to the jury that it was the defendant’s duty to furnish to the plaintiff a reasonably safe place to work, and not absolutely a safe place to work or a place absolutely safe to work;” the movant contending that “the jury naturally got the impression, from the language used by the court in its charge, that it was the duty of defendant to furnish the plaintiff a place to work that was safe, and not a place to work that was reasonably safe.” This particular assignment of error caused this court to propound to the Supreme Court the following questions, to wit:

1. “In a suit against a corporation for damages on account of personal injuries to an employee of the defendant, where one of the issnes was as to whether or not the master furnished a proper place for -the servant to work, was it error for the judge to charge that the master should furnish the servant a ‘safe place’ at which to work, or should he have charged that it was the duty of the master to furnish a ‘reasonably safe place ?’ ” See King Manufacturing Co. v. Walton, 1 Ga. App. 403 (3) (58 S. E. 115); Pelham Mfg. Co. v. Powell, 6 Ga. App. 308 (2) (64 S. E. 1116); Eagle & Phœnix Mills v. Moncrief, 17 Ga. App. 10 (1, 1 a), 24 (1), 25, 26, 27, 28 (86 S. E. 260); City of Atlanta v. Trussell, 21 Ga. App. 351 (94 S. E. 649), and citations; Betts v. Hancock, 139 Ga. 198 (4), 205 (4) (77 S. E. 77); Jackson v. Merchants & Miners Transportation Co., 118 Ga. 651 (45 S. E. 254); Southern Bauxite Mining & Mfg. Co. v. Fuller. 116 Ga. 695 (43 S. E. 64).

2. “In a suit by an employee against a corporation for personal injuries, where the petition alleges that the defendant ‘negligently failed to furnish the plaintiff a safe place at which to work, and negligently failed to furnish appliances reasonably safe;’ that defendant ‘was negligent in furnishing plaintiff said unsafe place to work;’ and further alleges that ‘plaintiff in the exercise of ordinary care assumed that the same (the place of work) would be ordinarily and reasonably safe for that purpose,’ and where the evidence shows that the plaintiff was engaged at work placing posts for the gates of an elevator, and the vice-principal of the corporation directed the plaintiff, in doing this work, to use the top of the elevator as a platform, and the evidence further shows that as the servant was endeavoring to place one of the posts in position he stepped on the top of the elevator, which was not properly fastened and turned, and he fell through and was precipitated to the floor of the elevator, was it error for the court to charge the jury that the master should furnish the servant a ‘safe place’ at which to work, or should he have charged that it was the duty of the master to furnish a ‘reasonably safe place?’”

3. “If in answer to either of the preceding questions the court says that it was error not to charge that the master should furnish to the servant a ‘reasonably safe place’ in which to work, was this error rendered harmless by the fact that the judge, whenever he charged the jury that it was the duty of the master to furnish a ‘safe place’ to work, always coupled it with the further instructions that before the plaintiff could recover, the failure of the master to furnish a safe place at which to work must be negligence ?”

The Supreme Court evenly divided upon the answer to these questions, and the case was returned to this court without instructions. Russell, C. J., Beck, and Gilbert, JJ., entertained the following views: “We are of the opinion that a non-delegable duty of the master is to use ordinary care in providing his servant a safe place in which to work. This statement .of the rule has found frequent expression in many decisions of this court. In Atlanta & Charlotte Air-Line Ry. v. Ray, 70 Ga. 674 (2-a), it was said: ‘The duty rested on the company to properly select and superintend its operatives, its machinery, appliances, and appointments of every sort used in its business. It was a guarantor that all reasonable and proper care had been exercised in the performance of those duties, and its liabilities should be limited to a failure to meet its obligations in this respect.’ It would seem that if a master had used ordinary care to make the place of work safe, he would in every case be relieved from liability. There is in fact but little substantial difference between providing a reasonably safe place -to work and using reasonable diligence to make such a place safe. The rule laid down in Middle Georgia & Atlantic R. Co. v. Barnett, 104 Ga. 582 (30 S. E. 771), Chenall v. Palmer Brick Co., 117 Ga. 108 (43 S. E. 443), and Norris v. American Railway Express Co., 156 Ga. 150 (118 S. E. 686), is, in our opinion, correct. In some cases the rule has been stated by this court to be that it was the duty of the master to furnish a ‘reasonably safe place/ Such is the ruling in Jackson v. Merchants & Miners Transportation Co., 118 Ga. 651 (45 S. E. 254). In Atlantic & Birmingham R. Co. v. Reynolds, 117 Ga. 47 (43 S. E. 456), it was said that the master is held to only ordinary care in furnishing his servant ‘a reasonably safe place to work/ In Betts v. Hancock, 139 Ga. 198 (77 S. E. 77), it was said that it was inaccurate for the court to instruct the jury that ‘it was the duty of the defendant in this case to have used in the transaction under investigation ordinary care and diligence, as I have defined it to you, in furnishing the plaintiff a safe place to work/ but a new trial was not granted because of this in struction. The verbiage used by this court in passing upon this question has not always been precisely the same, but the lack of harmony has been more apparent than real. The oldest ruling by this court precisely in point is that in the case of Middle Georgia & Atlantic R. Co. v. Barnett, supra, a full bench unanimous decision, and should be adhered to. It followed in principle the case of Atlanta & Charlotte Ry. v. Ray, supra.

“Whether or not the master is liable in any given case depends upon whether or not he has been derelict in the duty imposed upon him by law, to wit, the exercise of ordinary diligence. If he has been faithful to that duty, no liability can attach to him for any injury that may result. If he has failed in that duty, liability will attach. In order to determine whether he has been faithful or derelict, we must look to the standard of duty prescribed by law. In such a case as this the well-established rule in this State is that the master must exercise ordinary care, that is, such care as every prudent man would exercise under the same circumstances. What every prudent man would do under the circumstances would vary according to the time, place, and conditions. ‘The standard of ordinary and reasonable care is invariable, such care being that of every prudent man. Code [1882], § 2061. But the care of a prudent man varies according to circumstances dependent upon the degree of danger.- . . “What is the precise legal intent of the term ‘ordinary care’ must, in the nature of things, depend upon the circumstances of each individual case. It is a relative and not an absolute term.”’ Central Railroad Co. v. Ryles, 84 Ga. 430 (11 S. E. 499); 1 Hopkins’ Personal Injuries (2d ed.), §§ 2, 87. The fixed standard of the law that the master shall furnish a safe place for the servant to work does not impose an absolute duty to furnish a safe place, but the duty is placed upon the master to make an effort to do so. As stated in 3 LaBatt on Master and Servant, 2410, § 907, ‘As the master is deemed to be culpable if he fails to. exercise that degree of care which is denoted by one or other of the expressions used to describe the hypothetical conduct of a man of ordinary prudence, so, on the other hand, he is not required to satisfy any higher standard of diligence or skill than that which such a man may be supposed to exercise under the circumstances. Any instruction is correct which embodies this principle. [Italics ours.] On the other hand, it is a misdirection to charge the jury in language the effect of which is to subject the master to more extensive obligations than those indicated by the phrase “ordinary care” or its equivalents.’ From the annotations on the subject in the work just quoted it is seen that the expressions are widely variant. Summing the whole subject up Mr. LaBatt has shown, in the quotation above in the sentence which we have italicized, that the real test is whether or not the master exercised ordinary care, that is, whether or not he has fulfilled the duty imposed upon him by law. See also LaBatt on Master and Servant, §§ .906, 907, 919, 920. Such is the rule adopted by this court in Middle Georgia & Atlantic Ry. Co. v. Barnett, supra, as follows: ‘It is well settled that a master is generally under a duty of providing his employee with a safe place in which to work. . . The duty of the master to furnish a safe place for the servant to work is not absolute and unqualified. Some kinds of work are necessarily attended with dangers against which the master can not by any degree of diligence provide. In such case the law does not require of him impossibilities ; but if, by exercising ordinary care, he can make safe the place wherein the servant is to labor, it is the master’s duty to do so.’ ”

Justices Atkinson, Hill, and Hines had contrary views, and in their opinion it was error to charge that it was the master’s duty to furnish “a safe place” in which to work, and “the third question should be answered in the negative.” 159 Ga. 56.

We agree with the views entertained by Bussell, C. J., and Justices Beck and Gilbert, especially so when applied to the excerpts complained of in this case. It will be noted that the judge was stating the contention of the plaintiff in his suit. When the charge of the court is read in its entirety it will be found that the court charged the jury that “This case being based upon the alleged negligence of the defendant, it becomes necessary for you to understand what the law means by negligence; and negligence means simply the absence of or the failure to exercise the degree of care required by law to be exercised. In other words, negligence is the absence of or the failure to exercise legally required care.” The court then charged the jury that “in .this case the law requires the defendant to exercise ordinary care; and the definition of ordinary care is just that care which every prudent person would exercise under the same or similar circumstances; and, with this definition, it becomes a question of fact for you to determine whether the defendant exercised ordinary care in so far as the particulars charged are concerned, or whether the defendant was guilty of negligence in so far as the particulars charged are concerned, or in any of them.” The charge of the court as a whole did not put a greater burden upon the defendant than the law placed upon it in the matter of furnishing a safe place to work. The question of negligence and the necessity that the proof must satisfy the jury of its existence was fully and most fairly submitted to the jury.

When the charge is read in its entirety, neither the refusal of the written requests to charge, nor any of the excerpts from the charge complained of, shows error harmful to the defendant. The assignments of error upon the rulings on the admissibility of evidence are without merit. The evidence amply authorized the verdict. The entire charge of the court was adjusted to the issues raised by the pleadings and shown by the evidence. Under all of the record in the case, the court having approved the verdict, the motion for a new trial was properly overruled.

Judgment affirmed.

Broyles, C. J„ and Bell, J., concur.