text:
    17848.
    SAVANNAH LUMBER COMPANY v. BURCH.
    In this case, in which an injured employee’s widow sought to recov^-from the employer a balance of compensation due on an award against the employer and the insurance carrier under the workman’s compensation law, and in which the petition alleged that payment of a check of the insurance carrier, covering certain weekly payments on the award, was refused, and that the cheek was returned with a notation thereon that “on account of receivership proceedings” the insurance carrier refused “to accept draft,” the court did not err in overruling the demurrer to the petition.

      Workmen’s Compensation Acts, C. J. p. 130, n. 46 (New).

      Decided April 12, 1927.
    Complaint; from Chatham superior court — Judge Meldrim. November 19, 1926.
    Certiorari was granted by the Supreme Court.
    < In the brief of counsel for the plaintiff in error it is stated that “the question presented for determination by the general demurrer is whether or not any liability exists against the plaintiff in error as employer in the event of the insolvency of the insurance carrier;” and the following sections of the workmen’s compensation act áre quoted: “Every employer who accepts the compensation provisions of this act shall insure the payment of compensation to his employees in the manner hereinafter provided, and while such insurance remains in force he or those conducting his business shall only be liable to any employee for personal injury or death by accident to the extent and in the manner herein specified.” “No policy or contract of insurance against liability arising under this law shall be issued unless it contains the agreement of the insurer or insurers that it will promptly pay to the person entitled to same all benefits conferred by this act and all installments of the compensation that may be awarded or agreed upon, and that the obligation shall not be affected by any default of the insured after the injury or by any default in giving notice required by such policy, or otherwise. Such agreement shall be construed to be a direct promise by the insurer or insurers to the person entitled to compensation enforceable in his name.” Ga. L. 1920, p. 176, see. 11; p. 206, sec. 71 (Park’s Code Supp. 1922, § 3154 (k), § 3154 (sss) ). Cited in the brief: In re Pethick (1915), 1 Ch. (Eng.) 26, (1914) W. N. 403, 84 L. J. Ch. N. S. 285, 112 L. T. N. S. 212, 59 Sol. J. 74, (1915) H. B. R. 59, (1915) W. C. & Ins. Rep. 5, 8 B. W. C. C. 337; Renishaw Iron Co., (1917), 1 Ch. (Eng.) 199, 115 L. T. N. S. 755, .61 Sol. J. 147; Post v. Berger, 216 N. Y. Supp. 544.

      Cobb & Bright, for plaintiff in error. Robert L. Colding, contra.
   Bloodworth, J.

The petition is as follows: “1. That on November 13, 1922, A. B. Burch, the husband of your petitioner, was severely injured while in the employment of the Savannah Lumber Company. 2. That an agreement was entered into by and between the Savannah Lumber Company, employer, and A. B. Burch, employee, for the payment of compensation during disability at the rate of $14.63 per week, and that this compensation was to be paid by the Integrity Mutual Casualty Company, insurance carrier for the Savannah Lumber Company. 3. That on August 14, 1925, an application was made for a hearing, by the employer and the insurance carrier, based on a change in the condition of the employee. This hearing was had in the City of Savannah, Chatham county, Georgia, on August 28, 1925. 4. That evidence was submitted, at the conclusion of which Honorable H. M. Stanley, commissioner presiding, made an award in the case in favor of A. B. Burch for compensation for total permanent disabilities for a period of 350 weeks from November 13, 1922, at the rate of $14.63 per week, this award to be paid by the Savannah Lumber Company, employer, as principal, and the Integrity Mutual Casualty Company, insurance carrier. 5. That this claim came before the full commission on October 30, 1925, on petition for review [of?] said decision so rendered by said Commissioner Stanley on October 15, 1925, at which time the award heretofore made by Commissioner Stanley was confirmed, and a copy of said proceedings was duly forwarded to the Savannah Lumber Company, insurance carrier. 6. That the said A. B. Burch received from said Integrity- Mutual Casualty Company 181 payments of $14.63; that on May 22, 1926, he received a cheek drawn by the said Integrity Mutual Casualty Company on the Harris Trust and Savings Bank of Chicago, 111., for $29.26 covering the 182d and 183d payments .of the specific indemnity of 350 weeks so allowed as' aforesaid. 7. That payment of said check was refused, and said check was returned to him with a notation on the same, ‘ On account of receivership proceedings the Integrity Mutual Casualty Company refuses to accept draft.’ 8. Your petitioner shows that said Savannah Lumber Company is still doing business in Chatham county, Georgia, and amply solvent to pay the entire .balance due on said award, which they nevertheless fail and refuse to do, although payment thereof has been demanded. 9. Your petitioner shows that said A. B. Burch, husband of your petitioner, died on September 1, 1926, as a result of the injuries he sustained as heretofore set out, and that at the time of Ills death she was solely dependent upon him for her support,' and that she is entitled to receive the balance due under said award from said Savannah Lumber Company. Wherefore petitioner prays that she have justment [judgment] against said Savannah Lumber Company for the amount so due as aforesaid. Your petitioner shows that she has filed in Chatham superior court a copy of all of the proceedings before said industrial commission in said case, and she now prays that a rule nisi do issue directed to the said Savannah Lumber Company, requiring it to be and appear and show cause, if any it has, why judgment should not be entered up against it in accordance with said award.”

The defendant filed a demurrer on the following grounds: “1. That said petition fails to set forth any cause of action or any right to summary or remedial relief against defendant. 2. That-said petition fails to show any right upon the part of Alpha 13. Burch to bring suit for the homicide of her husband, A. B. Burch. 3. Defendant demurs specially to paragraph 1 of petition, and moves to strike the same, upon the ground that said paragraph is vague, indefinite, and uncertain, in that said paragraph fails to disclose the capacity in which A. B. Burch was employed by Savannah Lumber Company, and fails further to indicate the nature of the injury suffered by the said A. B. Burch. 4. Defendant demurs specially to paragraph 2 of said petition, and moves to strike the same, upon the ground that said paragraph is vague, indefinite, and uncertain, in that said paragraph fails to disclose whether or not the alleged agreement entered into by and between Savannah Lumber Company, employer, and A. B. Burch, employee, was voluntary or was compulsorily fixed by the industrial commission of Georgia,' and fails further to disclose the date of such agreement or any other material fact or circumstance connected therewith. 5. Defendant demurs specially to paragraph 4 of petition, and moves to strike same, upon the ground that said paragraph shows on its face that the award of the industrial commission was improper and illegal, in that it provided for compensation in excess of $5,000. 6. Defendant demurs specially to paragraph 8 of the petition, and moves to strike the same, upon the ground that said paragraph fails to show why collection from the Integrity Mutual Casualty Company, insurance carrier, has not been made or further attempted, and fails further to show why Savannah Lumber Company is liable for default In payment upon the part of said insurance carrier. 7. Defendant demurs specially to paragraph 9 of petition, and moves to strike the same, upon the ground that the allegations concerning the death of A. B. Burch are conclusions of the pleader, and that said paragraph does not show the 'nature of the last illness of A. B. Burch, or the place, manner, or circumstances of his death. 8. Defendant demurs specially to that paragraph of complainant’s petition beginning ‘wherefore,’ upon the ground that said paragraph is vague, indefinite, and uncertain, and fails to show the amount expected to be recovered.” The demurrer was overruled and the defendant excepted.

The court did .not err in overruling the demurrer.

Judgment affirmed.

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


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    17849.
    Pruett v. The State.
    Decided April 12, 1927.
    Possessing intoxicating liquor; from Cobb superior cpurt — Judge Wood. November 27, 1926.

      H. B. Moss, for plaintiff in error.

      George D. Anderson, solicitor-general, contra.
    Intoxicating Liquors, 33 O. J. p. 757, n. 74; p. 701, n. 53; p. 762, n. 55, 57.
   Luke, J.

A conviction of possessing intoxicating liquor was not authorized where the only evidence of any liquor being found was that there was a two-gallon jug of whisky buried in the ground about seventy-five yards from the defendant’s house, and no witness swore that it belonged to liim or was on his place, and the evidence showed that “other people lived close there.” The circumstantial evidence depended upon for a conviction was not sufficient to exclude every reasonable hypothesis save that of the guilt of the accused.

Judgment reversed.

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


author: Bboyles, C. J.

text:
    17852.
    Simmons v. The State.
    Decided April 12, 1927.
    Making liquor; from Chattooga superior court — Judge Maddox. December 18, 1926.
    According to the evidence, the defendant was discovered by officers at a still which “was just being put up,” or was “about ready for operation,” and he ran off. There was no fire in the furnace under the still. Seven barrels of fermented beer, ready to boil, were found there. The defendant, in his statement at the trial, said that he ran “to keep from getting caught,” but that he had nothing to do with the still and knew nothing about it. It was contended on the part of the State that the defendant’s flight was a sufficient circumstance to authorize the conviction.

      B. E. Neal, for plaintiff in error.

      J. F. Kelly, solicitor-general, contra.
    Criminal Law, 17 C. J. p. 252, n. 16.
    Intoxicating Liquors, 33 C. J. p. 758, n. 80, 88; p. 774, n. 14; p. 1179, n. 69.
   Bboyles, C. J.

The accused was convicted of manufacturing intoxicating liquor. The evidence failed to establish that any whisky had been made at the distillery in question, or that the beer found there by the arresting officers was intoxicating. The verdict, therefore, was unauthorized, and the refusal to grant a new trial was error. See Walker v. State, 32 Ga. App. 18 (122 S. E. 645).

Judgment reversed.

Luke and Bloodworth, JJ., concur.


author: Bloodworth, J.

text:
    17854.
    GEORGIA, FLORIDA & ALABAMA RAILWAY COMPANY v. WELLS.
    1. “Where instructions are given that are not warranted by the evidence and are calculated to mislead and confuse the jury, the error requires a new trial.”
    2. “Where the entire charge is not sent up in the bill of exceptions or in the record, and the portion of the charge excepted to is error, without qualification, and when the judge who tried the case makes no statement in his certificate which shows that it was qualified by other parts of the charge, this court will presume that there was no qualification.”
    Decided April 12, 1927.
    Appeal and Error, 4 C. J. p. 768, n. 24; p. 769, n. 40.
    New Trial, 29 Cyc. p. 786, n. 87; p. 787, n. 90, 92.
    Trial, 38 Cyc. p. 1618, n. 36; p. 1620, n. 39; p. 1621, n. 44.

      Damages; from city court of Bainbridge — Judge Spooner. December 4, 1926.
    W. H. Wells sued the Georgia, Florida & Alabama Bailway Company, alleging that two of his mules, each of the value of $125, had been run over- and killed by a freight-train of that company, which was operated in a negligent manner. The evidence showed that when killed the mules were about 150 yards apart. The jury returned a verdict for $125. The railway company filed a motion for a new trial, which was overruled, and the movant excepted.

      A. B. Conger, for plaintiff in error. Vance Custer Jr., contra.
   Bloodworth, J.

(After stating the foregoing facts.) The motion for a new trial contains three excerpts from the charge of the court, all of which are alleged to be error. We will discuss two of these only. They are: (a) “Should you find from the evidence, find that it has been shown to your satisfaction, that on the occasion alleged, that this railroad, by its employees, were operating this train, and was operating at such speed that they did not have it under proper control as required by law, did not have it under such control that they could bring it to a stop in a case of emergency, or if they were guilty of any acts of negligence that would produce the results of such damage, you ought to find for the plaintiff in the case.” (6) “Should you find, on the other hand, that by the use of ordinary care and diligence he could have avoided killing the first mule, that it was a fault of his by not looking ahead, he would be responsible for the killing of that mule. If, after he had killed the first mule and saw the second mule, should you find he had his train -running at an excessive rate of speed and he failed to use ordinary care and diligence in applying his brakes, or whatever appliance was necessary, that he ran over the second mule without the use of ordinary care and diligence, he would be responsible fox killing that animal.” Bach of the foregoing excerpts is alleged to be error because each submitted to the jury issues not made by the evidence, and each would tend to confuse and mislead the jury. The entire charge was not sent up. The judge who tried the case did not make any statement in his certificate which would show that the portions of the charge to which exceptions were filed were-qualified by other parts of the charge, and, under the ruling in the case of Central Railroad v. Senn, 73 Ga. 705 (5), this court will presume that there were no such qualifications. See Armour Fertilizer Works v. Dwight, 22 Ga, App. 144 (4 a) (95 S. E. 746). So we must consider these excerpts just as they appear in the record, unaided by any help from the entire charge and without any qualification by the judge. When each is so considered it is erroneous and shows material error. As alleged in the motion, each of these excerpts submits issues not made by the evidence, and each was calculated to mislead and confuse the jury. “Where instructions are given that are not warranted by the evidence and are calcu: lated to mislead and confuse the jury, the error requires a new trial.” Sherman v. Stephens, 30 Ga. App. 511 (10) (118 S. E. 567), and cit.; Stiles v. Shedden, 2 Ga. App. 317 (3), 321 (58 S. E. 515); Park v. Chipstead, 20 Ga. App. 38 (92 S. E. 350). Even though a charge may contain a correct statement of an abstract principle of law, but which is not applicable to the evidence and tends to mislead the jury and prejudice the rights of one of the litigants, it is reversible error. Nation v. Jones, 3 Ga. App. 83 (3) (59 S. E. 330); Hines v. Duncan, 25 Ga. App. 712 (3) (104 S. E. 519); Redd v. Lathem, 32 Ga. App. 214 (3), 221 (123 S. E. 175). In this case the excerpts complained of in the motion probably confused and misled the jury, and for this reason a new trial should have been granted.

Judgment reversed.

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


text:
    17856.
    17857.
    HARGETT v. CITY OF COLUMBUS. McBRIDE v. CITY OF COLUMBUS.
    The certiorari to review the judgment of the recorder was properly dismissed because of failure to show compliance with the statute as to bond. The recorder’s certificate that “a good and sufficient bond as required by law” was given was, in the light of the record, a “conclusion inadequate to meet the requirement of the statute.”
    Certiorari, 11 C. J. p. 150, n. 34; p. 159, n. 94.
    Decided April 12, 1927.
    Certiorari; from Muscogee superior court — Judge McLaughlin. May 22, 1926.

      R. Terry, for plaintiff in error.

      H. C. McCutchen, William deL. Worsley, contra.
   Luke, J.

The defendants in these cases were convicted in the recorder’s court of the City of Columbus, and filed petitions for certiorari to the superior court of Muscogee county. The judge of the superior court passed the following order in each case: “This case coming on for' hearing, and the defendant having moved to dismiss same on the ground that the petition did not recite that a bond was given and approved as required by law, and for the further reason that no specific exception was taken to the judgment and the several errors alleged to have been committed, it is, therefore, ordered and adjudged that said certiorari be and the same is hereby dismissed.” Plaintiffs in error except to this ruling and assign the same as error. Section 5191 (a) of the Civil Code of 1910 provides that a party who seeks a writ of certiorari to review and correct the judgment of any recorder’s court “shall first file with the clerk of said court, or, if no clerk, with the judge of said court, except when the defendant is unable from poverty to give bond and a proper pauper affidavit is furnished, a bond payable to the municipal corporation,” etc. The petitions for certiorari did not contain a certified copy or set forth the terms of the bonds required by law in such cases, and there was no pauper’s affidavit. This being true the judge of the superior court properly dismissed the certiorari. See Gillespie v. Mayor &c. of Macon, 19 Ga. App. 1 (90 S. E. 970); Naylor v. Mayor &c. of Tybee, 35 Ga. App. 253 (132 S. E. 780). The certificate of the recorder that'“a good and sufficient bond as required by law” was given in each of these cases is, in the light of the record, a “conclusion inadequate to meet the mandatory requirement of the statute.” Freeman v. City of LaGrange, 27 Ga. App. 46 (107 S. E. 380).

Judgment affirmed.

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


author: Bloodwoeth, J.

text:
    17858.
    Johnson v. The State.
    Decided April 12, 1927.
    Criminal Law, 16 C. J. p. 1217, n. 44, 45.
    Drunkards, 19 C. J. p. 802, n. 17.
   Bloodwoeth, J.

The evidence authorized the verdict, and the court properly overruled the motion for a new trial, which was based on the general grounds only.

Judgment affirmed.

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

Drunkenness on highway; from Crawford superior court — Judge Mathews. December 11, 1926.

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

Charles E. Garrett, solicitor-general, contra.


author: Broyles, C. J.

text:
    17859.
    Smith v. The State.
    Decided April 12, 1927.
    Keeping lewd house; from Warren superior court — Judge Perryman. December 15, 1926.
    Mrs. Smith was convicted of keeping a lewd house. From the evidence it appeared that she and her unmarried daughter and a married couple lived in the same house in Warrenton. A witness testified that he lived within a hundred yards of her a little more than three months, and that a married man named Cason frequented the house, going there morning, evening, and night, and often staying ás much as two hours during his morning and evening visits; that he had seen Cason carry ice, milk, roasting ears, and other things there in a car, and that the general opinion in the community was that the house was a place where “illicit relation between man and woman was practiced.” Another witness testified: “As to the general reputation of Mrs. Smith’s house, I have heard no talk except about Mr. Cason going there; there is a general reputation in that community that Mr. Cason goes there for the purpose of illicit relations.” ' Other neighbors testified as to Cason’s visits and the reputation of the house, some that they did not know of its having a bad reputation. The defendant, in her statement at the trial, denied that there was improper conduct in the house, and said that she had been buying milk from' Cason for several years, that he sometimes brought ice to her, coming after dark when it was not convenient to come in the daytime; that his family and hers had been intimate as far back as she could remember; that his grandfather had been administrator on her grandfather’s estate, and his father had protected her mother in several litigations growing out of the estate, and that she and her daughter occupied the same room and slept in the same bed.

      Criminal Law, 16 O. J. p. 764, n. 54; p. 1179, n. 67; 17 G. J. p. 252, n. 16.
    Disorderly Houses, 18 O. J. p. 1227, n. 2.
   Broyles, C. J.

The evidence relied on for a conviction in this ease was wholly circumstantial, and was not sufficient to exclude every reasonable hypothesis except that of the guilt of the accused. It follows that the refusal to 'grant a new trial was error.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

F. P. & J. Cecil Davis, for plaintiff in error.

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


text:
    17861.
    Maryland Casualty Company et al. v. Miller.
    Decided April 12, 1927.
    Appeal; from Chatham superior court — Judge Meldrim. November 26, 1926.

      Bouhan & Atkinson, for plaintiffs in error.

      Adams, Adams & Douglas, contra.
   Luke, J.

The industrial commission found that the death of the injured party was occasioned by injuries arising out of and in the course of his employment. There was some evidence to sustain -this Adding, and, under the law as laid down in United States Fidelity &c. Co. v. Christian, 35 Ga. App. 326 (3) (133 S. E. 639), this court is without authority to reverse the judgment of the superior court affirming the finding of the industrial commission.

Judgment affirmed.

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


text:
    17862, 17891.
    TAYLOR v. KEOWN; and vice versa.

    1. An amendment to a petition for damages for personal injuries which merely increases the amount, sued for is not such an amendment as to “materially change the cause of action or defense” and open the petition as amended to demurrer or plea.
    2. Where, as in this case, an amendment is allowed increasing from $2,000 to $5,000 the amount of alleged damages, and a verdict for $2,500 is rendered, and where the plaintiff voluntarily writes from the verdict $500, and thus reduces the amount of the verdict to the amount originally sued for, the allowance of the amendment is harmless, even if such allowance were error.
    3. The judge erred in setting aside the judgment in favor of the plaintiff.
    Decided April 12, 1927.
    Appeal and Error, 4 O. J. p. 883, n. 33; p. 908, n. 63; p. 945, n. 99; p. 1168, n. 98.
    Pleading, 31 Cye. p. 417, n. 40, 45.

      Damages'; from Floyd superior court — Judge Maddox. December 11, 1926.
    Application for certiorari was made to the Supreme Court.
    Henry Taylor brought suit to the July term, 1926, of the superior court of Floyd county, against Homer Keown, for damages in the sum of $2,000, for personal injuries sustained as the result ■of Keown driving his automobile into the petitioner’s truck; the suit being filed May 7, 1926, and the defendant being served in person on that date. On the call of the appearance docket an entry of default was made. When the case was called at the trial term, on October 16, 1926, the defendant was still in default, and was not present. ’A jury was selected, and during the progress of the trial the plaintiff offered an amendment to his petition, changing the amount sued for from $2,000 to $5,000, and the amendment was allowed. The jury returned a verdict in favor of the plaintiff for $2,500, which was made the judgment of the court, on October 16, 1926. The defendant, on November 12, 1926, made a motion to set aside the said verdict and judgment, on several grounds, which are substantially as follows: Because the plaintiff offered an amendment at the trial term, increasing the amount sued for from $2,000 to $5,000, which amendment opened the default; the amendment was allowed without notice to the defendant; this amendment subjected the petition and the amendment to demurrer and answer, which was not allowed; the court should have continued the case and given defendant an opportunity to answer; the case was called out of its order and without notice to the defendant, and contrary to the rules of practice in Floyd superior court; the judge had announced that no further business would be taken up that week except the case which was then being tried; the defendant had not waived his right to be present at the trial; the amendment was material; the defendant has a good and meritorious defense to said suit, which was not filed .in the first instance because of a misunderstanding cm his part. To this petition the plaintiff filed his answer, and upon the hearing of the issues both plaintiff and defendant introduced evidence, and after argument the judge passed the following order on December 11, 1926: “The within motion to set aside verdict and judgment coming on for a hearing, after .evidence being submitted and. argument of counsel heard, the court is of the opinion that the amendment to the petition of Henry Taylor, which changed the amount sued for from $2,000 to $5,000, was such an amendment as is contemplated by section. 5652 of the Civil Code, and had the effect of opening the default that had been entered in said cause, and that movant should then have been allowed a reasonable time for answering such amendment, and that in view of the fact that the amendment was offered and allowed just as the jury was retiring to the jury room to make its verdict, that movant had no notice of such amendment and hadn’t a reasonable time in which to answer. For the reason assigned and for this reason alone, the court is of the opinion that the verdict and judgment should be set aside; wherefore it is ordered and adjudged that the verdict and judgment complained of be and the same is- declared null, void, and of no effect, and that the same is vacated.” The plaintiff, HenryTaylor, now plaintiff in error in the main bill of exceptions, excepted to and assigns error on this order, on the ground, in substance, that the amendment increasing the amount sued for from $2,000 to $5,000 “was not one which materially changed the cause of action or defense,” and that the setting aside of' said verdict and judgment “was further contrary to law and the evidence because plaintiff, the said Henry Taylor, voluntarily and in open court, and in his answer to the motion of Homer Keown to set aside said verdict and judgment, voluntarily wrote off from said verdict and judgment the sum of $500; and even if there was error in the trial court in the allowing of said amendment by plaintiff, changing the amount of damages claimed from $2,000 to $5,000 without allowing the defendant a reasonable time for answering such amendment, . . same was harmless and not hurtful to the defendant, because, under the record, now plaintiff only has a verdict and judgment for the sum of $2,000, the original amount sued for by plaintiff.” The defendant, Homer Keown, in a cross-bill of exceptions, excepts to and assigns error on this order setting aside the verdict and judgment, because the verdict and judgment were set aside for the one reason stated in the order hereinbefore set out, and “for this reason alone,” and should have been set aside for all the reasons urged by the defendant in his motion.

      Porter & Mebane, for plaintiff.

      Nathan Harris, Maddox, Matthews & Oivens, for defendant.
   Bloodworth, J.

(After stating the foregoing facts.) The amendment to the petition merely changed the amount of damages alleged to have resulted from the injury to the plaintiff from $2,000 to $5,000. The petition was not otherwise changed. We do not think that such an amendment so “materially changes the cause of action or defense” (italics ours) as to open the petition as amended to demurrer or plea. Civil Code (1910), § 5652. It is undisputed that the defendant had notice of the suit, that he was properly served, that he had discussed the matter with the plaintiff's attorney, and that he failed to appear in person or by counsel at the calling of the appearance docket or at the trial term. In fact, there is ample evidence supporting the allegation, in the answer to the petition'to set aside the judgment, that “the said Homer Keown told counsel for the plaintiff that he was not going to defend said case, and that so far as he was concerned, plaintiff could go ahead and try his suit and get a judgment against him, because it was not his duty to defend said suit, but the duty of the insurance company.” But should we concede that the defendant was not guilty of laches in failing to appear and file his defense, and that the court erred in failing to sustain the motion to set aside the judgment for all the reasons alleged in said motion, still the error was harmless, because the record shows that the “plaintiff, the said Henry Taylor, voluntarily and in open court and in his answer to the motion of Homer Keown to set aside said verdict and judgment, voluntarily wrote off from said verdict and judgment the sum of $500.” This had the same effect as a withdrawal of the amendment to the petition would have had; it reduced the judgment to the amount for which suit was originally brought, and left the defendant in exactly the same position in which he would have been had the amendment not been allowed. Therefore he was not harmed by said amendment.

In regard to the cross-bill of exceptions, there was conflicting evidence as to each issue raised by the motion to set aside the judgment and which was brought to this court by the cross-bill, and “upon these questions of fact involved the trial judge was the trior and his finding thereon is conclusive.” Montgomery v. Bowen, 20 Ga. App. 493 (2) (93 S. E. 111). Under the facts of the case the allowance of the amendment to the petition resulted in no injury to the defendant, and the trial judge erred in setting aside the judgment rendered in favor of the plaintiff. “To authorize a reversal of the judgment of the lower court, not only error but injury must be shown.” Elrod v. Grant, 9 Ga. App. 309 (71 S. E. 501); Hancock v. Tifton Guano Co., 19 Ga. App. 185 (4) 91 S. E. 246); Goodman v. Brown, 17 Ga. App. 778 (88 S. E. 593); Reid v. Caldwell, 114 Ga. 676 (3) (40 S. E. 712); Smith v. Peacock, 114 Ga. 698 (5) (40 S. E. 757, 88 Am. St. R. 53); Lee v. Pearson, 138 Ga. 646 (5) (75 S. E. 1051); Turner v. State, 138 Ga. 808 (3) (76 S. E. 349); First National Bank of Chattanooga v. American Sugar Refining Co., 120 Ga. 717 (48 S. E. 326); Braswell v. Equitable Mortgage Co., 110 Ga. 30, 33 (35 S. E. 322). The cross-bill of exceptions shows no valid reason why the verdict and judgment in favor of the plaintiff should have been set aside.

Judgment on main bill of exceptions reversed; on cross-bill affirmed.

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


text:
    17863, 17864.
    Manis v. Southern Railway Company; and vice versa.

    Decided April 12, 1927.
    Action for damages; from Whitfield superior court — Judge Tarver. October 12, 1926.

      J. A. McFarland, William E. & Gordon Mann, for plaintiff.

      Maddox, Maddox & Mitchell, for defendant.
    Pleading, 31 Cyc. p. 407, n. 71.
    Trial, 38 Cyc. p. 1555, n. 8; p. 1556, n. 9.
   Broyles, C. J.

1. The court did not err in ruling that the petition as amended was not subject to the demurrers interposed.

2. The plaintiff failed to prove his case as laid, and the court properly awarded a nonsuit.

Judgments affirmed on both the main and the cross bills of exceptions.

Luke and Bloodworth, JJ., concur.


text:
    17866.
    FAULKNER et al. v. WALKER, Governor, et al.

    1. “No judge or justice of any court . . can sit in any cause or proceeding in whicli . . he has been of counsel,” unless the opposite party or his counsel agrees in writing that he may preside.
    2. “A presiding judge who is disqualified to try a criminal case is also disqualified to forfeit a bond in such case, or to grant a rule nisi on the forfeiture; and a judgment absolute based thereon is illegal, and . should be set aside upon direct attack for that purpose.”
    3. The court erred in sustaining the demurrer and. dismissing the petition to vacate and set aside the judgment absolute upon the forfeiture of the criminal recognizance.
    Decided April 12, 1927.
    Forfeiture of recognizance; .from Cherokee superior court — Judge Wood. December 8, 1926.
    William J. Faulkner was indicted, and John. S. Wood, as solicitor-general, represented the State in the drawing and procuring of the indictment. William J. Faulkner, as principal, and James F. Faulkner, as security, executed an appearance bond. When the cáse was called in the superior court, in which John S. Wood was solicitor-general, the defendant failed to appear, and the bond was forfeited and scire facias issued. Subsequently the judge of the superior court died and John S. Wood succeeded him in office. Thereafter, while Johp S. Wood was presiding as judge of that court, the defendant’s case was again called, and William J. Faulkner not being present and having failed to make a new bond in the case, judgment was entered against the defendant and his security on the bond, which judgment was signed by John S. Wood, judge of the court, then and there presiding. The defendant and his security filed a petition in the superior court, praying that said forfeiture and judgment and the fi. fa. issued thereon be declared null and void, and be vacated and set aside, on the ground that the judge was disqualified because of his former participation in the case as solicitor-general. When this cause came on to be heard before Judge Wood, George D. Anderson, then solipitorgeneral, demurred to the petition, and the judge sustained the demurrer and dismissed the petition. To this judgment William J. Faulkner and James F. Faulkner excepted.
    Morris, Hawkins & Wallace, for plaintiffs in error.
    Judges, 33 O. J. p. 1002,. n. 16; p. 10Q3, n. 22; p. 1005, n. 66, 69, 78 New; p. 1020, n. 6; p. 1023, n. 60.
    Judgments, 34 C. J. p. 295, n. 97.

      George D. Anderson, solicitor-general, contra.
   Bloodworth, J.

(After stating the foregoing facts.) Section 4642 of the Civil Code of 1910, provides that “No judge or justice of any court . . can sit in any cause or proceeding in which . . he has been of counsel. . , Provided, that in all cases in which the presiding judge of the superior court may have been employed as counsel before his appointment as judge, he shall preside in such cases if the opposite party or counsel agree in writing that he may preside, unless the judge declines to do so.” (Italics ours.) It is undisputed that the presiding judge had been of counsel for the State in the case under consideration, and it is not contended that the defendant or his counsel gave written consent for him to preside in the bond forfeiture. In Marks v. Smith, 4 Ga. App. 129 (4), 130 (60 S. E. 1016), it was held that “A presiding judge who is disqualified to try a criminal case is also disqualified to forfeit a bond in such case, or to grant a rule nisi on the forfeiture; and a judgment absolute based thereon is illegal, and should be set aside upon direct attack for that purposed’ (Italics ours.) Applying this decision to the instant case, we necessarily conclude that if the judge is not qualified to try a criminal case in which he himself drew the indictment and otherwise participated, then he is not qualified to forfeit the bond in that case, and a judgment absolute based thereon is illegal, and should be set aside upon direct attack for that purpose. In Allen v. State, 102 Ga. 619, 622 (29 S. E. 470), the Supreme Court said: “It is conceded that Judge Felton of the Macon circuit was the solicitor-general of the circuit and prosecuted the plaintiff in error under the indictment for murder when that issue was tried in the superior court of Bibb county. He was therefore disqualified, under the terms of the Civil Code, § 4045 [§ 4642 of the Code of 1910, hereinbefore cited], from passing on the motion. By the common law the fact that the judge had been of counsel in a case was not a legal objection. . . Disqualification for this cause, therefore, is statutory, and the disability to preside is the result alone of the statute. From whatever source the disqualification to preside in a cause may arise, the effect, when such disqualification exists, is to divest jurisdiction, and the action taken is coram non judice, and void. . . It will be noted that the words of the statute are that 'No judge or justice of any court, no ordinary, justice of the peace, nor presiding officer of any inferior judicature or commission, can sit in any cause or proceeding in -which he has been of counsel. . The word ‘sit,’ when used in the statute, is synonymous with the word ‘preside; and it is fair, in construing it, to hold that the language intended that any act done or order made in the case of a judicial nature is prohibited.' . . It may therefore, we think, be conceded that while the statute forbids any judicial officer who has been of counsel in a particular case from thereafter presiding in the trial of such case, such prohibition is restricted to hearing the case, and to making or passing any order in relation thereto as may be judicial in its nature.” (Italics ours.) This ruling was based squarely on the fact that the presiding judge had been of counsel. If he has been of counsel, the statute, except as provided therein, forbids his “sitting” or “presiding” in the case, “or passing any order in relation thereto as may be judicial in its nature;” and it is not denied, in the instant case, that the judge had been of counsel for the State, participated as counsel in the case, and did thereafter preside as judge in the case, and that the 'judgment of forfeiture was an “order judicial in its nature.”

Inasmuch as the presiding judge was disqualified to try this case or to pass orders therein, and his disqualification was not waived, the trial thereafter went for naught. See Shuford v. Shuford, 141 Ga. 408 (9), 409 (81 S. E. 115); State Mutual Life Ins. Co. v. Walton, 142 Ga. 765 (3), 766 (83 S. E. 656); Dobbins v. City of Marietta, 148 Ga. 467 (2), 468 (97 S. E. 439).

The court erred in sustaining the demurrer and dismissing the petition and motion to vacate and set aside the judgment absolute upon the forfeiture of the criminal recognizance.

Judgment reversed.

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


text:
    17867.
    Jerks v. The State.
    Criminal Law, 16 C. J. p. 764, n. 54.
    Intoxicating Liquors, 33 O. J. p. 757, n. 74; p. 761, n. 53; p. 762, n. 54, 55, 57.
   Luke, J.

On circumstantial evidence the defendant was convicted of possessing intoxicating liquor. Under the facts of the case it could be reasonably concluded that the small quantity of whisky found, in the absence of tlie accused, in an outliouse on his premises, belonged to some one other than himself; and, since the evidence does not exclude every reasonable hypothesis save that of the guilt of the accused, the court erred in overruling the motion for a new trial. See Humphrey v. State, 25 Ga. App. 244 (102 S. E. 911); Turner v. State, 25 Ga. App. 234 (102 S. E. 847).

Decided April 12, 1927.

Possessing intoxicating liquor; from Pulaski superior court— Judge Graham. December 14, 1926.

Officers searching for whisky and whisky stills, it was testified, found in a swamp, about a mile from the residence of Frank Jelks (the defendant), several parts of a recently used still, and then went to his residence and to an outhouse on the premises; the house was locked and the only person there was a woman who said she was the wife of Frank Jelks, and from her they got the key of the house, and there found several jugs, in one of which was a pint of whisky, and found a funnel and three barrels; one of the barrels had recently (from its fresh appearance) contained whisky mash. “This house had been used years ago as a commissary by one Jim Johnson.”

D. R. Pearce, for plaintiff in error.

M. H. Boyer, solicitor-general, contra.

Judgment reversed.

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


text:
    17868.
    TAYLOR v. THE STATE.
    1. There is no merit in either of the special grounds of the motion for a new trial which are based upon alleged errors in the charge to the jury.
    2. “Under the evidence in this case,' there was no reasonable theory upon which the defendant could have based his contention that, if he was guilty of any crime at all, it was involuntary manslaughter. Even if such theory could have been predicated lipón the statement of the defendant, there was no error in omitting to charge the jury what would be the form of their verdict in the event they found the defendant guilty of involuntary manslaughter, no request to charge on this subject having been made by defendant’s counsel.”
    3. Under the facts of the case there is no merit in that ground of the motion for a new trial which alleges that the court erred “in that the defendant and her attorneys did not have time and were not given an opportunity to poll the jury nor to demand a poll of the jury between the time that the jury published its verdict and the time the judge sentenced the defendant.”

      Criminal Law, 16 C. J. p. 1056, n. 20; p. 1057, n. 26; p. 1098, n. 93; p. 1149, n. 91; p. 1177, n. 41; p. 1273, n. 4; p. 1316, n. 43.
    Homicide, 29 C. J. p. 1128, n. 14; p. 1129, n. 15; p. 1149, n. 38, 41; 30 C. J. p. 141, n. 50; p. 317, n. 69.

      4. A conviction of voluntary manslaughter was authorized by the evidence, and the overruling of the motion for a new trial was not error.
    Decided April 12, 1927.
    Manslaughter; from Richmond superior court — Judge A. L. Franklin. December 21, 1926.
    The deceased and the accused had been married. On the night of the homicide each went to a soft-drink place called “The Dirty Spoon,” in the back of which was a dance hall. On that night at “The Dirty Spoon” was a woman named Beulah, who lived on Heilman’s alley. In her statement to the jury the accused said that before going to “The Dirty Spoon” she went to the home of Beulah in search of her husband, and was there told by a neighbor that he and Beulah had gone to the dance. She then went over to “The Dirty Spoon” and there found him and Beulah. She called her husband, and Beulah said: “He can’t come now. He is not your husband now, he is mine;” and the accused said: “He is my husband, and he is going home.” Further words followed, and in the “disturbance” all three of these parties took part. As further showing the relation which existed between the deceased and Beulah a witness testified: “I don’t know whether Hamp [the deceased] lived with this woman [Beulah]. I know he and Dorothy [the accused] were separated. . . I have seen Hamp and Beulah together.” Another witness stated that during the evening and about half an hour before the homicide she saw Beulah “run into this woman [the accused] with an ice-pick.” Still another witness testified that about fifteen or twenty minutes before the killing she heard the accused say: “I am going to kill a man to-night.” Later the accused was seen running after the deceased with a knife in her hand. She caught up with him and cut him over the, heart. At that time the hands of the deceased were “down by the side of him.” From this wound the deceased died during the night. In her statement the accused said that she had a small pen-knife wrapped in her handkerchief, and added, “I did not cut him to kill him.” The accused was convicted of voluntary manslaughter, and her motion for a new trial was overruled.

      Peebles & Bowden, for plaintiff in error.

      George Hains, solicitor-general, John M. Graham, contra.
   Bloodworth, J.

(After stating the foregoing facts.) Only the second and third headnotes need elaboration.

Special ground 2 of the motion for a new trial is as follows: “Because the court failed to charge the jury on the law of involuntary manslaughter, and the defendant’s statement, taken as a whole, demanded a charge on involuntary manslaughter.” An examination of the evidence in this case clearly shows that there is nothing in it upon which the jury could base a verdict of involuntary manslaughter. Where one voluntarily stabs another and death results, the homicide can not be involuntary. The evidence shows beyond question that the accused deliberately stabbed the deceased over the heart. “Where a blow mortal in its nature is wilfully inflicted with an instrument likely to cause death, the homicide produced by it is not involuntary manslaughter, but unless justifiable, is either murder or voluntary manslaughter.” Boatwright v. State, 89 Ga. 140 (4) (15 S. E. 21). “While there can be neither murder nor voluntary manslaughter without an intent to kjll, yet where the weapon used was a pocket-knife, and- the defendant stabbed the deceased in the neck with it, an intent to kill may be presumed.” Johnson v. State, 4 Ga. App. 59 (3) (60 S. E. 813). Moreover, there was no request to charge the jury on involuntary manslaughter. In Jackson v. State, 91 Ga. 271 (18 S. E. 298, 44 Am. St. R. 22), the court held: “Where there is nothing in the evidence to indicate that the killing was not voluntary, and where no charge is requested on that subject, involuntary manslaughter is not an issue in the case, and no allusion should be made to it in charging the jury, even though the prisoner’s statement by indirection suggest such a theory.” See also Thornton v. State, 107 Ga. 683 (6) (33 S. E. 673); Lott v. State, 18 Ga. App. 747 (2, 3) (90 S. E. 727); Kinsey v. State, 24 Ga. App. 342, 343 (100 S. E. 770). So it is clear that the court did not err in failing to charge the law of involuntary manslaughter.

The next ground of the motion for a new trial alleges error “in that the defendant and her attorneys did not have time and were not given an opportunity to poll the jury nor to demand a poll of the jury between the time that the jury published its verdiet and the time the judge sentenced the defendant.” It appears that when the verdict, which fixed the punishment at a minimum of ten years and a maximum of fifteen years, was published the presiding judge turned to the defendant and said, “So that will be your sentence.” To support their contention that this ground is error counsel for the plaintiff in error cite and rely upon McCullough v. State, 10 Ga. App. 403 (6, 7) (73 S. E. 546). That case presents a very different question from the one presented in this case. When the decision in the McCullough case was rendered the judge fixed the sentence, and in doing so had a wide discretion. Under the present law (Acts 1919, p. 387; Park’s Penal Code Supp. 1922, § 1081 (e) the jury fixes the minimum and maximum term in such cases as this, and in sentencing the person convicted the judge has no discretion, but “shall commit said convicted person to the penitentiary in accordance with the verdict of the jury.” The decision in the McCullough case rested not so much upon the fact that the judge announced the sentence immediately upon the publication of the verdict as upon the fact that the judge sentenced the accused to the extreme limit of the punishment allowed by the statute, and this court said (p. 406) : “This precipitate and severe sentence could have had but one effect upon the jury, namely, the impression of judicial approbation of the verdict, and individual indignation against the accused. The sentence thus imposed deprived the accused of his legal right to poll the jury, at least it destroyed any possible value which the accused could have acquired by the subsequent polling of the jury; for even if any juror had been reluctant in consenting to the verdict, and had changed his mind and had concluded to withdraw his assent when polled, this strong approval by the court of the verdict would have induced any wavering juror to abandon any intended dissent and to agree to the verdict on subsequent polling.” The reasoning in that case is not applicable to the case under consideration. When the jury in this case returned its verdict the announcement by the judge, “So that will be your sentence,” could not have shown a “judicial approbation of the verdict and individual indignation against the accused,” and could not “have induced any wavering juror to abandon any intended dissent and to agree to the verdict on subsequent polling,” but simply amounted to an announcement that when the sentence was reduced to writing and formally entered, it would, as required by the statute, follow the verdict. Moreover, in the McCullough case this court expressly announced that “the evidence did not demand the finding.” In Tilton v. State, 52 Ga. 478, it was held: “The proper time to demand the right to poll the jury is after the publication of the verdict and before the dispersion of the jury and recording of the verdict.” Within the time allowed counsel for the accused to demand a poll of the jury nothing was done to prevent them from doing so, but they did not make any request fiherefor.

In Freeman v. Brown, 115 Ga. 23 (41 S. E. 385), Mr. Justice Eish said: “What the judge orally declares is no judgment until it has been put in writing and entered as such.” See Foy v. McCrary, 157 Ga. 461 (121 S. E. 804).

Judgment affirmed.

Broyles, C. J., and Buhe, J., concur.


text:
    17881.
    SMITH v. THE STATE.
    A charge on the offense of shooting at another was not required by the evidence.
    The charge of the court shows no reversible error; the evidence authorizes the verdict of assault with intent to murder, and the court did not err in overruling the motion for a new trial.
    Homicide, 30 G. J. p. 319, n. 97; p. 336, n, 70; p. 337, n, 86; p. 434, n. 3,
    Intent, 33 O. J. p. 168, n. 73, 87,
    Decided April 12, 1927.
    Assault with intent to murder; from Franklin superior court— Judge W. L. Hodges. December 7, 1926.

      Wolver M. Smith, George L. Goode, for plaintiff in error.

      A. S. Shelton, solicitor-general, Tutt & Brown, B. B. Zellars, L. S. Johnson, contra.
   Luke, J.

The defendant was convicted of assault with intent to murder, and assigns error on the overruling of his motion for a new trial. All the special grounds of the motion for a new trial relate to the charge of the court. The charge when considered as a whole and in the light of the evidence shows no reversible error. The evidence did not demand a charge on the offense of shooting at another. Intent is a matter of mind and is evidenced by external circumstances capable of proof, and there was ample evidence to show that defendant shot with premeditation and with deliberate intent to kill. The victim of the defendant’s assault was the sheriff of Hart county, who had chased a carload of whisky to the defendant’s home. He testified: “Mr. Smith [the defendant] and Mrs. Smith went in the house. Mrs. Smith said, just before she went into the house, ‘If you have got any business here you had better attend to it.’ She walked on in the house. I did not make any reply to that statement. They both went in the house, and the next I saw of Mr. Smith was, he come around the corner of the house and dripped a bucket, and as he dropped it he gave it a kick, and placed his eyes right in mine. I was some twenty or twenty-five yards from him. Mr. Smith turned and went back around to the back of the house, and in some four or five minutes [italics ours] I heard a noise in the same direction, and I looked, and Mrs. Smith and Rutledge Smith [the defendant] were standing at the corner of the house, and Rutledge drew up his gun. I looked around and he shot me in the right side. At the time he shot me I was some twenty or twenty-five yards from him. At that time I wasn’t doing anything; I was standing there at the back of my car, on the right-hand side, at the rear end. I could see Mr. Smith at the time he shot. He shot me with a rifle. While Mr. Crawford was gone to Lavonia I stayed' at the Smith home for the purpose of getting Mr. Moss, the sheriff of Franklin county, to take charge of this truck-load of whisky. . . As a result of that wound I was confined to my bed for about three weeks. The weapon I was shot with was one likely to produce death.” The doctor who attended the sheriff after he was shot testified: “I am a practicing physician and surgeon. On the 19th day of June, 1926,1 was called on to see Mr. A. B. Brown at his home at the Hartwell jail. He was suffering greatly from loss of blood and from shock. An operation was necessary, and I operated on him with the assistance of Dr. Hailey and Dr. Jenkins. When we went inside of him we found that two of his ribs were shot off entirely and torn to pieces, and the discharge of the bullet tore a hole in the pleural cavity, and the lining of the lung was torn and jagged. There was quite a lot of bone, that was fractured in the lung. In other words, the lung was torn open at the base. In my opinion the wound was a fatal one without the utmost care, and in my opinion it would have resulted in death without the intervention of medical science or an operation.” Had death ensued, a verdict of murder would have been authorized. See Coney v. State, 101 Ga. 582 (28 S. E. 918); Tyre v. State, 112 Ga. 224 (37 S. E. 374); Kendrick v. State, 113 Ga. 759 (39 S. E. 286); Troup v. State, 26 Ga. App. 623 (4), 628 (107 S. E. 75).

The charge of the court shows no reversible error, the evidence authorizes the verdict of assault with intent to murder, and the court did hot err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    17886.
    Anderson v. The State.
    Decided April 12, 1927.
    Possessing intoxicating liquor; from city court of Reidsville— Judge Cowart. November 4, 1926.

      H. H. Elders, for plaintiff in error.

      M. W. Eason, solicitor, contra.
    Criminal Law, 16 C. J. p. 1206, n. 95; p. 1208, n. 97.
   Broyles, C. J.

The overruling of an extraordinary motion for a new trial based solely upon alleged newly discovered evidence is complained of in this case. After a careful consideration of that evidence as disclosed by the record, we are of the opinion that it is not of such a character as would probably produce a different verdict upon another trial. Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17888.
    REAGAN v. THE STATE.
    In the light of the evidence, and of the judge’s charge as a whole, and the written requests to charge, the failure to charge the jury appropriately on the subject of impeachment requires another hearing of the ease.
    Decided April 12, 1927.
    Kidnapping; from Polk superior court — Judge Irwin. December 31, 1926.

      Mundy & Watkins, M. B. Eubanks, for plaintiff in error.
    Criminal Law, 16 C. J. p. 1016, n. 85; p. 1067, n. 97; p. 1068, n. 3; p. 1069, n. 12; 17 C. J. p. 350, n. 7; p. 351, n. 41.
    Kidnapping, 35 C. J. p. 911, n. 29.
    Witnesses, 40 Cyc. p. 2593, n. 90.

      E. S. Griffith, solicitor-general, S. W. Ragsdale, solicitor-general, R. S. Ault, contra.
   Luke, J.

The defendant was convicted of kidnapping a minor child, and excepts to the overruling of his motion for a new trial. Even though the defendant may have been guilty of gross misconduct, the evidence showing his guilt of kidnapping is extremely weak. It is undisputed that the girl alleged to have been kidnapped was a graduate of a business college and had held three positions with business concerns; that the defendant, when he was alleged to have kidnapped her, took her to the home of her aunt and then to the home of her friend; that her father came up to the car in which she was alleged to have been kidnapped, and stopped, and, instead of embracing the opportunity to go with her father, she hid from him; and there is much evidence to show that she had ample opportunity to get away from the defendant after the alleged kidnapping, and that she left her home and went with the defendant of her own free will and desire, and without any persuasion or enticement from him. In fact, she testified, “He [defendant] didn’t promise me anything or force me to get in, so I guess I got in the car of my own free will and accord.” There was also much evidence tending to impeach her testimony, both by her contradictory statements made under oath and by the ■testimony of two officers ,of court who heard her testimony on a previous trial. Kef erring to this previous trial she testified: “I didn’t tell the truth and the whole truth on that trial.” The court did not charge on the subject of impeachment, the credibility of witnesses, or that the burden of proof was on the State. The 5th and 6th grounds of the motion for a new trial complain of the court’s failure to charge on the modes of impeachment, and the 3d and 4th grounds of the motion complain of the court’s refusal to charge as requested on the subject of impeachment. In the light of the evidence, the charge as a whole, and the written requests to charge, the failure of the trial, judge to charge the jury appropriately on the subject of impeachment requires another hearing of the case. Whether a witness has been successfully impeached is a question for the jury, but whether the evidence demands a charge on the subject of impeachment is a question for the court. The written requests to charge were defective in that the requested instructions failed to state that the witness sought to be impeached might be believed if her testimony was corroborated by the facts and circumstances of the case or other credible evidence. The trial judge, of course, is not required, in charging the jury, to adopt the language of counsel as contained in a request, but he is required to charge the correct principles of law applicable to the material issues of the case. “The charge of the court as given to the jury did not comply with the requirement of the law applicable to the facts of the case, and although the request to charge was objectionable, still it was the duty of the court to' give the law applicable to the facts in charge to the jury, the more especially as attention was called to it by the defective request of the defendant. . . The defendant may be guilty, or he may not be, but whether he is or not, he should be tried in accordance with the laws of the land, and it is our duty to see that he is so tried.” Stafford v. State, 55 Ga. 591 (4), 599. See also Plummer v. State, 111 Ga. 839 (36 S. E. 233); McCullough v. Sawtell, 134 Ga. 512, 515 (68 S. E. 89).

Judgment reversed.

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


text:
    17889.
    BURNETT v. THE STATE.
    Newly discovered evidence the only effect of which would be to impeach a witness for the State did not require a new trial.
    Criminal Law, 16 C. J. p. 1202, n. 70; p. 1205, n. 90; p. 1230, n. 66.
    Decided April 12, 1927.
    Possessing liquor; from Gordon superior court — Judge Tarver. November 27, 1926.

      J. H. Paschall, J. M. Lang, for plaintiff in error.

      C. C. Pittman, solicitor-general, J. C. Mitchell, solicitor-general, contra.
   Bloodworth, J.

1. The only ground of the motion for a new trial other than the general grounds is based upon alleged newly discovered evidence,-the only effect of which would be to impeach a witness for the State. Even “though the witness sought to be impeached by newly discovered evidence was the only witness against the.prisoner upon a vital point in the case, if the sole effect of the evidence would be to impeach the witness a new trial will not be granted.” Arwood v. State, 59 Ga. 391; Levining v. State, 13 Ga. 513; Wright v. State, 34 Ga. 110 (2); Jackson v. State, 93 Ga. 190 (18 S. E. 401); Haynes v. State, 18 Ga. App. 741 (3), 742, 743 (90 S. E. 485), and cit. “An affidavit in support of the witness upon whose newly discovered evidence a new trial is sought must give the names of his associates [italics ours], a statement that he> keeps good company not being sufficient to meet this requirement, which is necessary,to enable the prosecution to make a counter-showing; and where such affidavit does not comply with this requirement, the trial judge does not abuse his discretion by refusing to grant a new trial on this ground.” Ivey v. State, 154 Ga. 63 (6) (113 S. E. 175). Under the foregoing rulings the court properly refused to grant a new trial upon the ground of newly discovered evidence.

2. There was ample evidence to support the finding of the jury.

Judgment affirmed.

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


text:
    17897.
    Felder v. The State.
    Decided April 12, 1927.
    Manslaughter; from Pulaski superior court — Judge Graham. November 11, 1926.

      H. E. Coates, for plaintiff in error.

      M. H. Boyer, solicitor-general, contra.
    Homicide, 30 O. J. p. 317, n. 69.
   Luke, J.

The defendant was indicted for murder and was convicted of voluntary manslaughter. The verdict is amply supported by the evidence. Judgment affirmed.

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


text:
    17898.
    JORDAN v. THE STATE.
    1. The verdict finding the accused guilty of making intoxicating liquor and fixing a “maximum” penalty of one year, and'a “minimum” penalty of one and a half years, and recommending that he be punished as for a misdemeanor, was not void, and the' court did not err in sending back the jury to correct the informality in the verdict, and did not err in . overruling the motion to declare a mistrial.
    Criminal Law, 16 C. J. p. 1114, n. 42, 43, 45; p. 1180, n. 74.
    Intoxicating Liquors, 33 C. J. p. 758, n. 80.

      2. The evidence amply authorized the defendant’s conviction, and the court properly overruled the motion for a new trial.
    Decided April 12, 1927.
    Making intoxicating liquor; from Bryan superior court — Judge Sheppard. December 30, 1926.

      Henry O. Farr, for plaintiff in error.

      J. Saxton Daniel, solicitor-general, J. T. Grice, solicitor-general, contra.
   Bloodworth, J.

A jury which tried a case in which the accused was charged with “manufacturing whisky,” returned a verdict as follows: “We, the jury find the - defendant guilty as charged, and fix a maximum penalty of one year and a minimum penalty of one and one half years, and recommend that he be punished as for a misdemeanor.” When this verdict was published the presiding judge told the jury that they would have to go back and rewrite their verdict, and again instructed them as to the form of the verdict. Thereupon counsel for the plaintiff in error made a motion for a mistrial upon the ground that this verdict was a nullity, was not “susceptible to amendment,” did not fix a minimum and maximum penalty as provided by law, and that the jury “was instructed and advised by the clerk of said court as to the form of their verdict.” The court did not err in failing to declare a mistrial. In overruling the motion for a mistrial the court said: “I have already instructed them and then reinstructed them (the jury) as to what the legal form was, and, the verdict not being in proper form, instructed them that they must return to their room and prepare the verdict in legal form, and that, the clerk here having a paper on which there was a legal form, with the permission of the court he submitted that to the jury, and at the direction of the court, as being a proper and legal form.” The record further shows that the form furnished the jury by the clerk at the direction of the court left a blank space for the period of service of the defendant to be entered by the jury.

“Verdicts are to have a reasonable intendment and are to receive a reasonable construction, and are not to be avoided unless from necessity.” Penal Code (1910), § 1059. Who could read the verdict as originally rendered without reaching the conclusion that the jury intended to fix the minimum term as one year and the maximum as one and one half years? Is not this a “reasonable construction”? Moreover, when a verdict is ambiguous it “may be construed in the light of the issues actually submitted to the jury under the charge of the court; and if, when so construed, it expresses with reasonable certainty a finding supported by the evidence, it is to be upheld as legal.” Barbour v. State, 8 Ga. App. 27 (68 S. E. 458), and cit. See Arnold v. State, 51 Ga. 144, 145. Even had the judge the right to declare a mistrial when a void verdict is rendered, the original verdict in this case is' not. a void one. The judge did not err when he sent the jury back, as was his duty, to correct a mere informality in the verdict, nor did he err in overruling the motion to declare a mistrial. Loyd v. State, 150 Ga. 803 (8, 10) (105 S. E. 465); Giles v. Spinks, 64 Ga. 205; Monk-Sloan Supply Co. v. Quitman Oil Co., 10 Ga. App. 390 (73 S. E. 522).

Judgment affirmed.

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


text:
    17900.
    Rogers v. The State.
    Decided April 12, 1927.
    Arson; from White superior court — Judge J. B. Jones. December 25, 1926.

      W. N. Oliver, for plaintiff in error.

      Robert McMillan, solicitor-general, contra.
    Arson, 5 O. J. p. 583, n. 51.
    Criminal Law, 16 C. J. p. 1217, n. 44, 45.
   Bboyles, C. J.

The accused was convicted of the offense of arson, and his motion for a new trial contained the usual general grounds only. The testimony of his accomplice was corroborated by other evidence, and the refusal to grant a new trial was not error,

Judgment affirmed.

Luke and Bloodworbh, JJ., concur.


text:
    17902.
    Beckworth v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74; p, 1217, n, 44, 45; p. 1221, n. 25.
   Luke, J.

The first special ground of the motion for a new trial being' but an amplification of the general grounds, and the second ground not having been approved by the trial judge, this case is here upon the single assignment of error that the evidence did not authorize the verdiet. There was ample evidence to authorize the verdict, and the trial judge did not err in overruling the motion for a new trial.

Decided April 12, 1927.

Possessing liquor; from McIntosh superior- court — Judge Sheppard. December 30, 1926.

H. O. Farr, W. G. Little, for plaintiff in error.

J. Saxton Daniel, solicitor-general, J. T. Grice, solicitor-general, contra.

Judgment affirmed.

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


text:
    17903.
    Drew v. The State.
    Decided April 12, 1927.
    Adultery;.from Webster superior court — Judge Littlejohn. December 10, 1926.

      G. Y. Harrell, M. A. Walker, for plaintiff in error.

      Jule Felton, solicitor-general, contra.
    Criminal Law, 16 C. J. p. 1180, n. 74; p. 1217, n. 44, 45.
   Bloodworth, J.

This case is here upon the general grounds only. The evidence supports the verdict, and the court properly overruled the motion for a new trial.

Judgment affirmed.

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


text:
    17905.
    Thomas v. The State.
    Decided April 12, 1927.
    Larceny after trust; from Bibb superior court — Judge Mathews. December 1, 1926.
    Criminal Law, 16 G. J. p. 451, n. 91; p. 1225, n. 94; p. 1228, n. 52.
    Larceny, 36 C. J. p. 899, n. 34.
   Luke, J.

A conviction of larceny after trust was authorized by the evidence, which shows that the defendant, as clerk of a local camp of American Woodmen and consequently agent of the Supreme Camp of the American Woodmen, collected money from members of said organization, and feloniously converted and appropriated it to his own use.

The trial judge did not abuse his discretion in overruling the defendant’s motion for a continuance; and the alleged newly discovered evidence is not properly supported by affidavits as provided by law.

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

Judgment affirmed.

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

Viola B. Napier, for plaintiff in error.

Charles H. Garrett, solicitor-general, contra.


text:
    17911.
    DRIGGERS v. THE STATE.
    The charge on the law of manslaughter was authorized, by the evidence, and a conviction of voluntary manslaughter was authorized.
    Homicide, 30 C. J. p. 317, n. 69; p. 406, n. 17; p. 407, n. 19; p. 408, n. 22.
    Decided April 12, 1927.
    Manslaughter; from Tattnall superior court — Judge Sheppard. December 27, 1926.

      C. L. Cowart, M. Price, H. H. Elders, for plaintiff in error.

      J. Saxton Daniel, solicitor-general, J. T. Grice, solicitor-general; contra.
   Bloodworth, J.

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

Tinder the ruling in the foregoing eases a verdict of voluntary manslaughter in this case was authorized.

Judgment affirmed.

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


text:
    17912.
    Sellers v. The State.
    Decided April 12, 1927.
    Possessing liquor; from city court of Baxley — Judge Speer. December 7, 1926.

      J. B. Moore, for plaintiff in error.

      Wade H. Watson, solicitor, contra.
    Criminal Law, 16 O. J. p. 1008, n. 4; p. 1010, n. 14, 15; p. 1011, n. 25; p. 1180, n. 74.
    Intoxicating Liquors, 33 C. J. p. 761, n. 53.
   Broyles, C. J.

1. “While in every criminal case where the guilt of the accused depends wholly upon circumstantial evidence, it is the duty of the court, even in the absence of a written request, to charge the law of circumstantial evidence, it is immaterial what language is employed to convey this instruction, if every possible hypothesis arising from the circumstantial evidence, favorable to the defendant, be presented in concrete statement to the jury, and if they are instructed that if they believe any one of these hypotheses the defendant should be acquitted.” Reynolds v. State, 23 Ga. App. 369 (98 S. E. 246), and cit. Under that ruling and the facts of the instant case, the failure of the court to charge the law of circumstantial evidence in the exact language of section 1010 of the Penal Code was not error.

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

Judgment affirmed.

Luke and Bloodworth, JJ., conowr.


text:
    17913.
    Simmons v. The State.
    Decided April 12, 1927.
    Possessing liquor; from Dooly superior court — Judge Crum. December 18, 1926.

      Jere M. Moore, for plaintiff in error.

      T. Hoyt Davis, solicitor-general, contra.
    Intoxicating Liquors, 33 C. J. p. 761, n. 53.
   Luke, J.

The evidence authorized the conviction of the accused, and none of the special grounds of the motion for a new trial require another hearing of the case.

Judgment affirmed.

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


text:
    17916.
    Moncrief et al v. The State.
    Decided April 12, 1927.
    Eiot; from Lanier superior court — Judge Highsmith. December 22, 1926.

      M. F. Johnson, W.. D. Buie, for plaintiffs in error.

      II. C. Morgan, solicitor-general, contra.
    Criminal Law, 16 C. J. p. 1217, n. 45; 17 C. J. p. 202, n.' 76.
    Riot, 34 Cyc. p. 1786, n. 3.
   Bloodworth, J.

The motion for a new trial contains only the usual general grounds and grounds merely elaborating those grounds. “The evidence was sufficient to authorize the jury to infer that the criminal act of violence set out in the indictment was committed by the accused in pursuance of a common intent; and, in the absence of complaint of any error of law, the conviction for riot must be sustained.” Grier v. State, 11 Ga. App. 767 (2) (76 S. E. 70). The principle announced in the foregoing ruling is controlling in this case. See also Walker v. State, 17 Ga. App. 525 (87 S. E. 711); Lewis v. State, 2 Ga. App. 659 (58 S. E. 1070); Jemley v. State, 121 Ga. 346 (49 S. E. 292).

Judgment affirmed.

Broyles, C. J., and Luke, J., eonour.


text:
    17917.
    Bradford v. The State.
    Decided April 12, 1927.
    Burglary; from Wilkes superior court — Judge Perryman. December 16, 1926.

      Hugh E. Combs, for plaintiff in error.

      M. L. Felts, solicitor-general, contra.
    Burglary, 9 C. J. p. 1075, n. 13.
    Criminal Law, 16 C. J. p. 1180, n. 74; p. 1217, n. 45.
   Broyles, C. J.

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

Judgment affirmed.

Luke and Bloodwortii, JJ., concur.


text:
    17922.
    Elliott v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Receiving Stolen Goods, 34 Cyc. p. 527, n. 97.
   Bloodworth, J.

There. is nothing in any of the special grounds of the motion for a new trial that requires a retrial of the ease; the evidence supports the finding of the jury, and the court did not err in overruling the motion for a new trial.

Decided April 12, 1927.

Receiving stolen goods; from Whitfield superior court — Judge Tarver. December 27, 1926.

William E. & Gordon Mann, for plaintiff in error.

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

Judgment affirmed.

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


text:
    17923.
    EDWARDS v. THE STATE.
    The evidence as to the place at which the accused was seen with a pistol in his automobile was too indefinite to authorize a conviction of carry- ■ ing a pistol outside his own home or place of business.
    Weapons, 40 Oye. p. 861, n. 82.
    Decided April 12, 1927.
    Carrying pistol without license; from city court of Macon— Judge Hall. January 8, 1927.

      W. A. McClellan, T. A. Jacobs Jr., for plaintiff in error.

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

The accused was convicted of carrying a pistol outside of his own home and of his place of business. The only witness in the case, testified that he was a deputy sheriff of Bibb county, and that on a named day he received a call to come out on “Montpelia Avenue;” that he “went out there,” and saw the defendant sitting in his automobile, which was not in operation; that he saw a pistol lying across the' defendant’s lap and saw the defendant pick the pistol up and lay it down behind him on the seat of the car; that lie arrested the defendant and found the pistol on the seat of the car where he had laid it, and that all of this occurred in Bibb county, Georgia.

This evidence fails to show where the defendant’s automobile was at the time he had the pistol in his lap or in his hand. So far .as this court can gather from the- evidence, the car may. have been parked on “Montpelia Avenue,” miles away from the defendant’s home or place of business, or it may have been standing on the defendant’s home or business premises abutting on that avenue, or elsewhere. At any rate, the evidence fails to affirmatively show that the defendant had the pistol in his manual possession at some place other than his own home or place of business, and his conviction was unauthorized.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    17924.
    BRYAN v. THE STATE.
    The prosecuting attorney’s remarks in liis argument to the jury on the trial of the accused, who was charged with having liquor in his possession, to the effect that so long as people from other counties were allowed to come into the county and make liquor and flood the county with it, and “get away with it,” corrupting the morals of the people of the county, they would never be able to enforce the prohibition law in the county, were irrelevant, not deducible from the evidence, and prejudicial to the rights of the accused; and the court erred in overruling the motion for a new trial, in which it was complained that the judge failed to declare a mistrial, on motion of counsel for the accused, because of this improper argument.
    Criminal Law, 16 C. J. p.'897, n. 93; p. 899, n. 4; p. 909, n. 46; p. 1141, n. 72, 73; 17 C. J. p. 357, n. 34.
    Decided April 12, 1927.
    Possessing liquor; from Taliaferro superior court — Judge Perryman. December 16, 1926.

      Hugh E. Combs, for plaintiff' in error.

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

The defendant was convicted of having intoxicating liquor in his possession. The first special ground of the motion for a new trial alleges error “Because the court failed to declare a mistrial in this case, on motion of counsel for the defendant, then and there made, said motion being made upon the ground of improper argument of counsel for the State, the argument and conduct of counsel for the State being as follows: ‘Now, gentlemen of the jury, so long as you allow people from other counties to come into your county and make liquor, and flood your county with it, and get away with it, corrupting the morals of the people of the good old county of Taliaferro, you will never be able to enforce the prohibition law .in your county.’ The court, in overruling the motion, stated, in the presence of the jury, ‘I think the solicitor was entirely within his rights.’” This was error which requires the grant of a new trial, (1) because the remarks of the solicitor-general related to the violation of the prohibition law generally, when they should have been confined to the case on trial. Such remarks were prejudicial to the rights of the defendant. A general violation of the prohibition law by others is no reason whatever for the conviction of the accused. (2) Because such arguments by the solicitor, in order to be permissible, must be deducible from the evidence, and we find no evidence in the record to show that the juries of Taliaferro county were allowing people from other counties to come into the county and make liquor, and flood the county with it, “corrupting the morals of the people of the good old county of Taliaferro.” (3) Because the remarks of the solicitor-general “were allowed to go unrebuked and with the apparent sanction and approval of the court.” In the case of Manning v. State, 13 Ga. App. 709 (79 S. E. 905), the remarks of the solicitor-general, like those complained of in the instant case, referred to violations of the prohibition law in general, rather than to the particular case on trial, and in that case this court, speaking through its Chief Judge, said: “The language of the solicitor-general in concluding the argument for the State was improper, highly inflammatory in character, and calculated to prejudice the jury against the defendant, and was not warranted by the evidence. The trial judge should have declared a mistrial, or have strongly admonished the jury that the language was improper and that they should disregard it in their deliberations.” See also Pelham & Havana R. Co. v. Elliott, 11 Ga. App. 621 (5), 626 (75 S. E. 1062); Southern Marble Co. v. Pinyon, 144 Ga. 259 (1); Butler v. State, 142 Ga. 286 (82 S. E. 654). The remarks of the solicitor-general in his argument to the jury were irrelevant, not dedueible from the evidence, prejudicial to the rights of the accused, and necessitate the grant of another trial.

Judgment reversed.

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


text:
    17925.
    MIDDLETON v. THE STATE.
    1. In overruling the motion for a continuance the court did not commit such an abuse of discretion as, in the light of all the facts of the case, requires a reversal.
    Criminal Law, 16 C. J. p. 451, n. 89, 91; 17 C. J. p. 295, n. 63.
    Intoxicating Liquors, 33 C. J. p. 758, n. 80.

      2. The judge did not err in overruling the ground oí the motion for a new trial based on alleged prejudicial remarks made in the presence of the jury while he was hearing evidence on the motion to continue the case.
    3. The evidence amply authorized the finding of the jury.
    Decided April 12, 1927.
    Making intoxicating liquor; from Long superior court — Judge Sheppard. December 27, 1926.

      M. Price, W. O. Hodges, for plaintiff in error.

      J. Saxton Daniel, solicitor-general, J. T. Once, solicitor-general, contra.
   Bloodworth, J.

Upon a call of this case for trial the accused made a motion for continuanse, because of the absence of two witnesses. The overruling of this motion was made one of the grounds of the motion for a new trial. The other special grounds of the motion were based upon alleged prejudicial remarks made by the'judge in the presence of the jury while he was hearing evidence on the motion to continue the case, and in requiring the defendant to go to trial before jurors who were in the court-room at the time these remarks were made. The judge said: “I do not like the aspect being exhibited in some of these cases.” Counsel for the accused then said: “Well, I assume your honor refers to this case.” Thereupon the judge remarked: “As well as others.” In his written order overruling the motion for a new trial the judge said: '“In passing upon the first ground of the amendment to the motion for a new trial, the ground based upon the motion for continuance, I call attention to the fact that neither of the absent witnesses accompanied the defendant, and what the defendant expected to prove by these witnesses was that they were to go with him hunting hogs in these woods, but, for the reasons stated, they neither of them went; that he was at their place about 30 or 40 minutes before he was captured, and the distance from where he had met them to the place where he was arrested about a mile and a half away. When this testimony is considered in the light of the evidence of the sheriff and his deputy, I do not think it would materially affect 'the case. In reference to the second and third grounds of the amendment to the motion for a new trial, I desire to say that the remark was made in view of the fact that in every case called where the charge was the violation of the prohibition law, the defendants or their witnesses were absent and could not, after diligent search on the part of the officers, be located, and the facts and circumstances surrounding these cases impressed me that the defendants were determined not to come to trial, and the attitude appeared to be one of defiance. I believed, from the circumstances surrounding the case, that these witnesses were purposely absent from the court, and I wish to say in this connection that I entirely and completely absolve the attorneys representing the defendant from any participation or connection in such intent or purpose, for I do not believe either of them would in aüy case be a party to such. It has been my purpose ever since I have been judge of the court to give all parties a fair and impartial trial. The remark of the judge complained of in the motion was made during the taking of testimony on the motion for continuance and before the selection of the jury to try the case, and I directed, at the request of the attorneys for the defendant, that the oath and voir dire questions be propounded to each juror separately as he was called, and he qualified according to law before he was placed upon the State or the accused as a trior. In view of all that occurred, I do not believe the rights of the defendant were prejudicated [prejudiced?], and therefore overrule the motion as amended on all of the grounds thereof.” We agree with the judge in the conclusion reached, that he did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    17927.
    Swain v. The State.
    Decided April 12, 1927.
    Manslaughter; from Tattnall superior court — Judge Sheppard. December 30, 1926.

      B. J. Giles, A. 8. Way, for plaintiff in error.

      J. T. Grice, solicitor-general, contra.
    Criminal Law, 16 C. J. p. 1122, n. 65; p. 1206, n. 95.
    Homicide, 30 C. J. p. 316, n. 68.
   Broyles, C. J.

1., The alleged newly discovered evidence is not of such a character as would probably produce a different verdict upon another trial of the case.

2. The remaining grounds of the amendment to the motion for a new trial show no reversible error.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17929.
    Fry v. The State.
    Decided April 12, 1927.
    Possessing liquor; from Chattooga superior court — Judge Maddox. January 6, 1927.

      J. M. Bellah, for plaintiff in error.

      J. F. Kelly, solicitor-general, contra.
    Criminal Law, 16 C. J. p. 1122, n. 70; p. 1180, n. 74.
    Intoxicating Liquors, 33 C. J. p. 761, n. 53.
   Luke, J.

The evidence authorized the verdict, and the motion for a new trial was properly overruled.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., eoneur.


text:
    17930.
    Johnson, alias Odom, v. The State.
    Decided April 12, 1927.
    Manslaughter; from Henry superior court — Judge Persons. December 22, 1926.

      W. H. Connor, Chester A. Byars, for plaintiff in error.

      Frank B. Willingham, solicitor-general, F. M. Smith, contra.
    Criminal Law, 16 C. J. p. 968, n. 95.
    Homicide, 30 C. J. p. 316, n. 68; p. 389, n. 51, 52.
   Bloodworth, J.

1. There being evidence which would have warranted a finding that the defendant and the deceased, upon a sudden quarrel, each being armed with a pistol, mutually engaged in,a mortal combat, each using his pistol and intending to kill the other therewith, the judge did not err in giving in charge to the jury the law of voluntary manslaughter as related to the doctrine of “mutual combat.” Ison v. State, 154 Ga. 408, 415 (114 S. E. 351); Waller v. State, 100 Ga. 320 28 S. E. 77); Land v. State, 11 Ga. App. 761 (3) (76 S. E. 78); Mulligan v. State, 18 Ga. App. 464, 467 (89 S. E. 541); Linder v. State, 17 Ga. App. 46 (86 S. E. 90). Nor did the court err in any of the excerpts from the charge of which complaint is made in the motion for a new trial.

2. The court did not err in failing to give in charge sections 74 and 75 of the Penal Code of 1910. .

3. There is evidence to support the verdict.

Judgment affirmed.

Broyles, C. J., and Luke, J., eoneur.


text:
    17939.
    LEGGETT v. THE STATE.
    Eor no reason assigned did the court err in charging to the effect that if the jury should find from the evidence that the defendant, who was being tried for the offense of having intoxicating liquor in his possession, perfected a sale of whisky as contended by the State, there would be a presumption that he had whisky in his possession, and the jury should find him guilty.
    Intoxicating Liquors, 33 v. J. p. 744, n. 12; p. 761, n. 53; p. 763, n. 65, 68; p. 791, n. 53.
    Decided April 12, 1927.
    Possessing intoxicating liquor; from city court of Baxley— Judge Speer. December 7, 1926.

      J. B. Moore, for plaintiff in error.

      Wade H. Watson, solicitor, contra.
   Luke, J.

1. Tbe defendant was convicted of possessing intoxicating liquor. The motion for a new trial complains of the following charge: “If you should find from the evidence that the defendant, Berrian Leggett, perfected a sale of whisky, as contended by the State, to some other person, then that sale, under the law, would be a presumption that he had whisky in his possession, and if you were to find that Mr. Leggett did make a sale of whisky as contended by the State, then it would be your duty to find that he was guilty of having whisky in his possession.” It was contended that this was error because there was no such presumption, and because it was an expression of opinion as to what had been shown by the evidence. Eor no reason assigned was this excerpt error. “The' offense of sale, which contemplates delivery within the meaning of the prohibition statutes as the culminating feature of the sale, could not be committed without having, controlling, or possessing liquors.” Kuck v. State, 149 Ga. 191, 193 (99 S. E. 622).

2. The court did not err in failing to charge on circumstantial evidence.

3. The evidence authorized the verdict.

Judgment affirmed.

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


author: Bloodwobtii, J.

text:
    17940.
    Tuten v. The State.
    Decided April 12, 1927.
    Possessing intoxicating liquor; from city court of Baxley— Judge Speer. December 18, 1926.

      J. B. Moore, for plaintiff in error.

      Wade H. Watson, solicitor, contra.
    Criminal Law, 16 C. J. p. 1180, n. 74; p. 1209, n. 7.
    Intoxicating Liquors, 33 C. J. p. 761, n. 53; p. 790, n. 35.
   Bloodwobtii, J.

1. In view of tlie particular facts of this ease and of the entire charge of the court, the judge did not err in charging the jury as follows: “If, however, you should find from the facts and evidence in the case, that the defendant did pick up the whisky, that he did take the whisky into his possessoin, custody and control, took it under such possession and control as to pass it on to another, although the other party only took possession of it for the purpose of taking a drink, I charge you that the party who took the whisky into his possession for the purpose of passing it on to another, if you find that to be the facts in this case, then under the law you will be authorized to find the defendant guilty.” Barbour v. State, 21 Ga. App. 243 (94 S. E. 272); Brantley v. State, 28 Ga. App. 536 (3, 4) (112 S. E. 170).

2. There was some evidence to support the verdict, and the judge did not err in overruling the motion for a new trial.

3. The trial judge did not err in overruling the motion to disqualify himself from passing upon the motion for a new trial. Parker v. State, 146 Ga. 131 (90 S. E. 859); Shuford v. Shuford, 141 Ga. 407 (3) (81 S. E. 115). Judgment affirmed.

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


text:
    17941.
    Thomas v. The State.
    Decided April 12, 1927.
    Assault and battery; from Wilkes superior court — Judge Perry-man. December 29, 1926.'
    The indictment charged Solomon Sampson and Florence Thomas with “the offense of misdemeanor,” for that they unlawfully made an assault upon Annie Heard and beat and wounded her with a Ford automobile-truck, which was driven by said Florence Thomas by permission of said Solomon Sampson, said Florence Thomas, to the knowledge of said Solomon Sampson, being an inexperienced driver, “and said Florence Thomas, with the consent of said Solomon Sampson, did then and there use, drive, and operate saicf Ford truck, which she was unable to operate and control with safety to pedestrians using the streets, in the City of Washington, to wit on Whitehall street, without regard to the traffic and use of said street by pedestrians, and at a rate of speed calculated to endanger the lives and limbs of persons on said street, and at a greater rate. of speed than ten' miles per hour at an intersection of said street called Alabama street, when and whereupon said Florence Thomas, with consent of said Solomon Sampson, did drive said truck against and over said Annie Heard, then and there severely injuring said Annie Heard, and did then and there refuse and fail to render any aid or assistance to said Annie Heard, contrary to the laws of said State,” etc.

      Assault and Battery, 5 C. J. p. 788, n. 2.'
    Criminal Law, 16 C. J. p. 1178, n. 63.
   Broyles, C. J.

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

Judgment reversed.

Luke and Bloodworth, JJ., concur.

From the evidence it appears that a Ford truck “that Solomon Sampson drove” and in which he was riding at night with Florence Thomas (a woman) was being driven by Florence Thomas when it struck Annie Heard, who testified: “That truck was running right fast, . . faster than a man could trot; . . it didn’t give any signal to turn as I got in the middle of the road. It seems as it was a reckless driver. I was in plain view of. that truck when they ran over me. I was going straight up Whitehall and the truck was coming down Whitehall, and as I got out in the middle of the road, . '. they cut in on me and the truck knocked me down and hurt me. . . That truck did not slacken speed. . . They kept driving in full speed. . . I could tell from the way they turned that it was an ignorant driver. I was in plain view of them before they cut in on me, and they could have seen me. . . If they had made any signal like they were cutting in, I wouldn’t have gone across.” When arrested, Florence Thomas, according to the testimony of the arresting officer, said “she didn’t know how to drive and was just learning how; she said she saw this woman and she couldn’t stop. She said she saw her and forgot how to stop.” Yiola Shank testified that she herself was on the truck when Annie Heard “got run over. . . She was driving slow, because she didn’t know how to drive. She turned the corner slow and was right on Annie before she saw her. . . I was so scared I don’t know whether they tried to stop it or not. . . She didn’t get any faster.”

The defendant, in her statement at the trail, said: “I was so .gpared I didn’t know what to do that night that lady got hurt. She was coming across this way and I was driving the truck as slow as I could, and she looked up and saw the truck, and the left wheel knocked her down, and up a little further Solomon stopped the car for me. When we stopped she got up and went across the street. We stopped and started to come back. She got up, so we went on home.”

Hugh E. Combs, for plaintiff in error.

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


text:
    17948.
    Hipp v. The State.
    Decided April 12, 1927.
    Possessing liquor; from Gilmer superior court — Judge Wood. January 8, 1927.

      John T. Dorsey, for plaintiff in error.

      George D. Anderson, solicitor-general, contra.
    Criminal Law, 16 C. J. p. 1180, n. 74; p. 1206, n. 95; p. 1217, n. 45; 17 C. J. p. 252, n. 16; p. 271, n. 41.
    Intoxicating Liquors, 33 C. J. p. 761, n. 53.
   Luke, J.

This case is here upon the general grounds and upon alleged newly discovered evidence. There is some evidence to authorize the verdict, which is approved by the trial judge, the alleged newly discovered evidence is not such as would likely produce a different result on another hearing of the case, and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed,.

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


author: Bloodworm, J.

text:
    17954.
    Hewett v. The State.
    Criminal Law, 16 C. J. p. 1230, n. 65, 66, 67, 68, 69; 17 C. J. p. 271, n. 41.
    Intoxicating Liquors, 33 C. J. p. 761, n. 53; p. 764, n. 99; p. 790, n. 35.
   Bloodworm, J.

1. No excerpt from the charge of the court of which complaint is made in the motion for a new trial shows error requiring another trial of the case.

2. This court is not called upon to consider the ground of the motion for a new trial based upon alleged newly discovered evidence, since the movant failed to comply with section 6086 of the Civil Code (1910), which provides that “if the newly discovered evidence is that of witnesses, affidavits as to their residence, associates, means of knowledge, character, and credibility must be adduced.” Cartright v. State, 27 Ga. App. 258 (2) (108 S. E. 70).

Decided April 12, 1927.

Possessing and selling liquor; from Cook superior court — Judge Kniglit. January 14, 1927.

C. E. Parris, W. D. Buie, for plaintiff in error.

H. C. Morgan, solicitor-general, contra.

3. There is some evidence to support the verdict, and it is approved by the judge who tried the case.

Judgment affirmed.

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


text:
    17957.
    BIRD v. THE STATE.
    The motion for a mistrial, because of the highly improper and prejudicial argument of counsel for the prosecution, as to the defendant’s failure to put his character in issue and what would have been shown if he had done so, should have been granted.
    Criminal Law, 16 C. J. p. 905, n. 85; p. 907, n. 22.
    Decided April 12, 1927.
    Larceny after trust; from Cobb superior court — Judge Wood. January 15, 1927.

      Mozley & Gann, for plaintiff in error.

      George D. Anderson, solicitor-general, contra.
   Luke, J.

1. A ground of the motion for a new trial is as follows: “While John T. Dorsey, attorney at law assisting the prosecution, was making the concluding argument for the prosecution, he stated to the jury that the defendant had the right to put his character in issue; that he had not done it; that he knew better than to put his character in issue; that if he had put it in issue, they would have shown him up; that they would have shown his conduct in Rome. At this point in the argument movant’s counsel moved the court to declare a mistrial, on the character of the argument of said attorney. The court overruled the motion, and stated to said' attorney that he had better argue the evidence. To this refusal of the court to declare a mistrial movant excepted then, he excepts now, and assigns the same as error and contrary to law.” To this ground the court added the following note: “The court did not hear the portion of the argument of counsel for the prosecution as complained of herein, but counsel for defendant did move for a mistrial upon the ground, as he insisted, that counsel for prosecution had used language substantially as set out in said ground, counsel for prosecution not denying the use of such language. The court overruled said motion, and reprimanded counsel for prosecution, admonishing him to adhere to the testimony in the case.” The verification of the amendment to the motion for a new trial is as follows: “ Grounds of this amendment are hereby certified as true, as corrected.”

1. The argument complained of was highly improper and prejudicial to the defendant’s ease, and the court erred in overruling the timely motion for a mistrial. Smoot v. State, 146 Ga. 76 (90 S. E. 715).

(a) The note of the trial judge does not conflict with any material portion of the foregoing assignment of error, and this ground is sufficiently verified. See, in this connection, Fletcher v. Collins, 111 Ga. 253 (36 S. E. 646).

2. Ground 1 of the amendment to the motion for new trial discloses no reversible error; ground 2 is neither argued nor insisted upon in the brief of counsel, and ground 4 is .without merit.

Judgment reversed.

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