author: Hill, C. J.

text:
    1068.
    PYLE v. THE STATE.
    1. A ground of a motion for a new trial alleging error in admitting a written statement of tlie deceased as a dying declaration is without merit,, unless it sets out in substance the written statement admitted. This court will not refer to the brief of evidence for the purpose of completing an incomplete assignment of error.
    2. It was error to charge, on the subject of dying declarations that, “when a dissolution is approaching and the dead man has lost hope of life, and his mind feels the full consciousness of his condition, the solemnity of the scene gives to his statement the sanctity of truth.” The instruction gives undue emphasis to the weight which the jury should give-to such evidence.
    3. The written request to charge on the 'subject of dying declarations contains the true rules as to the admissibility of such declarations as evidence, and how they should be considered and weighed when treated as evidence; and the court erred in not giving it in charge.
    4. Where, on a trial upon an indictment for murder, the dying declarations of the deceased are introduced by the prosecution, it is error to' exclude proof offered by the defendant of other statements made by the deceased,' contradicting his dying declarations.
    5. When tested by the verdict, the erroneous rulings clearly appear to' have been harmless. The verdict, being manifestly based on other evidence, will not be set aside for errors as to evidence on which the jury plainly did not act.
    6. Where some of the evidence, and inferences fairly dedueible therefrom, tend to show voluntary manslaughter, a charge on that subject is not only proper, but demanded.
    Conviction of manslaughter, from Early superior court — Judge Worrill. February 8, 1908.
    Argued June 9,
    Decided October 12, 1908.
    John Pyle was indicted for murder, and was convicted of voluntary manslaughter. His motion for a new trial was overruled, and. the writ of error challenges the correctness of this judgment. The motion for a new trial is based upon the general grounds and the following additional assignments of error: (1) That the court* erred in admitting as evidence the paper purporting to be the dying declaration of the deceased, dated April 20, 1906, and signed T. W. Jackson, which is fully set out in the brief of evidence. It is insisted that the admission of this paper as a dying declaration was error, because the evidence did not show that it was made by Jackson, the deceased, in the article of death and after all hope of life had been extinguished. (2) That the court erred in the following portion of the charge on the subject of dying declarations: “When a dissolution is approaching and the dead man has lost hope of life and his mind feels the full consciousness of his condition, the solemnity of the scene gives to his statement the sanctity of truth, and such dying declaration, when made under such circumstances and conditions, may be admitted in,evidence and considered by the jury.” It is insisted that this is not the law as applicable to the weight of dying statements. (3) That the court erred in refusing to give the following timely written request: (a) “Dying declarations constitute one of the exceptions to the rule of hearsay evidence, the rule being that hearsay' evidence is ordinarily rejected. Their admission is founded on the necessity of the case and the reason that, being made in view of impending death and judgment, when the hope of life is extinguished and the retributions of eternity are at hand, they stand upon the same plane of solemnity as statements made under oath. They are admissible only when made by a person in the article of death, and great caution is necessary in the use of this kind of evidence.” (b) “You are to pass finally for yourselves on the question of whether the declarations were as the conscious utterances of the deceased in the apprehension and immediate prospect of death; and if not so made, you will not consider them.” (c) “Great caution should be observed by the jury in the use of this kind of evidence. Such evidence is liable to be very incomplete, for the reason that the deceased may be disposed to give a partial account of the occurrence, although not influenced by animosity and ill will. And furthermore, the fact, can not be concealed that animosity or resentment is not unlikely to be felt by the deceased in such a situation; and the passion of anger, once excited, may not have been entirely extinguished even when all hope of life is extinct. Such considerations show the necessity of caution in receiving accounts given by persons in a dying state, especially when you consider that the party making the statement can not be subjected to the power of a cross-examination.” (d) “The alleged dying statement of Jackson, the deceased, neither would be for your consideration if you believe the declarations were made at a time when he was not in the article of death or in extremis, or at a time when he had a hope of living, although that hope may have been slight.”
    (4) That the court erred in refusing to allow the defendant’s counsel to prove by Dr. J. H. Crozier, who was then upon the stand testifj'ing as a witness for the State, that Jackson told him that it was his purpose and intention to kill Pyle, that he would have done it if Pyle had not shot him in the mouth. Defendant now insists that this was legal and important testimony in his behalf, and that Crozier would have sworn so if the court had _not ruled it out and refused to allow him to do so. Following this ground of the motion for a new trial is this note: “When counsel for defendant offered to ask Dr. Crozier the foregoing question, counsel for the State objected, unless his statement was offered as a dying declaration. Counsel for defendant stated that he did not offer it as a dying declaration, but as a statement made against him*” (5) That the court erred in charging the jury on the subject of voluntary manslaughter, the defendant insisting that there was no evidence upon which to predicate this charge, as, under the. evidence, dm was either guilty of murder or was entirely justifiable, and that the charge complained of gave- the jury an opportunity of rendering a. compromise verdict. (6) That the court erred in the following portion of the charge: “The court charges you further to look into the matter and see whether or not the defendant was guilty of murder, or whether or not he was justifiable; but if you still believe that the act was done without malice and in a heat of passion arising from a mutual quarrel and mutual- intention to fight upon the part of the defendant and the deceased, the court instructs you, if you believe that such were the conditions and you believe that both were armed at the time of the homicide, and there was a mutual intention to fight, and that under such conditions the defendant shot and killed Jackson, then you would he authorized in finding him guilty of voluntary manslaughter; and if such intention existed, both intending to fight, it would make no difference who fired the first shot, the killing under such conditions would be voluntary manslaughter.” It is insisted, that the above charge was illegal and not applicable to the ease, the evidence failing to show any agreement or intention on the part of Pyle to engage in mutual combat; and that, therefore, this charge was calculated to mislead the jury and injure the defendant.

      R. H. Sheffield, J. W. Walters, for plaintiff in error.

      J. A. Laing, solicitor-general, J. E. Pottle, Pottle & Glessner, contra.
   Hill, C. J.

(After stating the foregoing facts.)

A well-settled rule of practice is not complied with in the first special ground of the motion for a new trial. The written statement objected to as a dying declaration is not literally or in substance set out in the motion, nor is it attached thereto as an exhibit. This court will look alone to the motion for a new trial,_ and what is set out therein and made a part thereof, for the purpose of determining whether the ruling complained of is erroneous. “Under no circumstances can an incomplete ground be made complete by a reference to the brief of evidence.” Barker v. State, 1 Ga. App. 287 (57 S. E. 989); Seaboard Ry. v. Phillips, 117 Ga. 106 (43 S. E. 494); Spence v. Morrow, 128 Ga. 722 (58 S. E. 356), and citations.

A statement made by the deceased, although admitted by the court as a dying declaration and so found and treated by the jury, has no greater force and effect than the testimony of a living witness. Indeed, when this anomalous character of evidence is properly considered, it is doubtful if it should have equal weight with that of an unimpeached witness. As was said by Mr. Chief Justice Lumpkin in Campbell v. State, 11 Ga. 375, “it must be admitted that great caution should he observed in the use of this kind of evidence.” And in discussing this species of evidence another great jurist has declared: “When a party comes to the conviction that he is about to die, he is in the same practical state as if called on in a court of justice under the sanction of an oath, and his declarations as to the cause of his death are considered equal to an oath, but they are, nevertheless, open to obserration. For though the sanction is the same, the opportunity for investigating the truth is very different, and, therefore, the accused is entitled to every allowance and benefit that he may have lost by the absence of the opportunit3 of more full investigation by the means of cross-examination.” Alderson, B., in Ashton’s •case, 2 Lewin’s Crown Cases, 147. This wise criticism has been -quoted with approval by Mr. Justice Hall in his great opinion rendered in the case of Mitchell v. State, 71 Ga. 128, in discussing the unreliable and unsatisfactory character of such proof, and the undue influence that juries are almost sure to give it. In the language of Sir Walter Baleigh, “A dying man is ever presumed to speak the truth.” And in the words of that mighty master of the human heart, Shakespeare (Bichard II, act 2, scene 1), “The tongues of dying men enforce attention like deep harmony.” To tell a jury, therefore, that they should give to dying declarations the “sanctity of truth” is to give undue emphasis to a kind of evidence which the human mind, whether through reli.gious sentiment, or awe at the approach of the pallid messenger, . -or because the declarant, being at the point of death, “must lose the use of all deceit,” is always prone to magnify. However unimpeachable might be the testimony of a living witness under oath, the court could not tell a jury that they should give it the sanctity of truth; nor should anjr greater weight be given to dying declarations. In the language of Mr. Justice Lumpkin, for the judge to so instruct the jury “is calculated to give undue emphasis to the weight to be attached to such evidence.” Robinson v. State, 130 Ga. 361 (60 S. E. 1005). Nor do we think the undue emphasis thus given to the dying declarations was corrected or in any degree weakened by the remainder of the charge on the subject. Mitchell v. State, 71 Ga. 149.

The request to charge embraced in the third ground of the motion embodies the rules laid down by the Supreme Court in the Mitchell case, supra, on the weight of dying declarations .and the cautious use which the jury should malee of this kind of testimony. In short, the charge in full, as given, on the subject of dying declarations falls clearly within the adverse criticism of the Supreme Court in the Mitchell case, supra, and the request refused embodies substantially what the court there said should have been charged on that subject without request.

After the dying declaration had been admitted by the court,, the defendant offered to prove contradictory statements made by the deceased after he was wounded,» concerning the shooting. The-court sustained the objection made to this testimony, and to this ruling the defendant excepted. It does not appear from the record on what ground the court based its ruling, unless, as explained, in the note to this ground in the motion for a new trial, it was-because the attorney for the defendant stated that he did not offer the contradictory statement as a dying declaration, but as a statement made against himself^bjr the deceased. The rule is general that a witness may be impeached bj proof that he has made statements contrary to what he has testified. It is true there is a condition to the application of this rule, which requires that the attention of the witness be previously called to the particular occasion and circumstances under which the supposed contradictory statements were made, in order to give him an opportunity of making any explanation of the matter which he may have. This preliminary condition can not be complied with where the contradictory statements offered are for the purpose of discrediting the testimony as to a dying declaration. Originally, at common law, dying declarations were only admitted ex necessitate rei, and while-this ancient and, we think, salutary rule has been greatly relaxed by modern decisions, yet, as has been well said by Justice Bland-ford, “It can not be easily seen, if the dying declarations of the deceased, made ex parte in the presence of his own friends and relatives, and not in the presence of the accused or his friends, without a cross-examination, and testified to bj his friends and relatives, áre to be admitted against the accused from the necessity of the case, why the declarations of the deceased, after the mortal blow is given, to other persons and at other times, different from the dying declarations, should not be admitted- in evidence to impeach the dying statement. If the one is admitted contrary to the general rule, why should not the other be likewise admitted? The former is admitted in favor of public justice, why not the latter in favor of life and liberty?” Battle v. State, 74 Ga. 104. If in the one case the witness who is to be impeached can not be-given an opportunity to explain, in the other case neither can the-accused have the benefit of the invaluable privilege of cross-examination; and the deprivation of the latter right probably works greater injustice than the deprivation of the former; for while the loss of the one may destroy the character of the witness for veracity, the loss of the other may, in many instances, deprive the accused of his life or liberty. That public justice which treats every man alike, the living as well as the dead, and which has as much concern for the protection of the innocent as it has for the punishment of the guilty, demands that where proof of a dying declaration has been allowed against the accused, proof of a contradictory statement made by the declarant should be allowed in his favor. There can be no justice, therefore, in any rule which would deprive the accused, under such circumstances, of the right to impeach the credit of the deceased by proof of his having made contradictory statements as to the homicide and its cause. The contradictory statements offered to be proved in this case, and the circumstances under which they were made, were substantially similar to those in the case of Battle v. State, supra, which the Supreme Court ruled should have been allowed in evidence.

While the instructions of the court and the rulings complained of to which we have referred in the foregoing division of this opinion were erroneous, yet, when tested by the verdict in this particular ease, these errors' were all harmless. An error of law which justifies the grant of a new trial should be an error resulting in injury; and no ruling, though it be erroneous when abstractly considered, ought to be sufficient ground for setting aside a verdict, unless in some appreciable degree such error contributed to the verdict. The verdict in this case was for voluntary manslaughter. It was in direct conflict with, and in the very teeth of, the dying declaration; and the rulings complained of, which we have held to be erroneous, all relate to the weight which the jury should give to -a dying declaration as evidence. It is clearly apparent, from the verdict, that the jury gave no credence whatever to the statement of the deceased submitted as a dying declaration. Whether the jury in fact found that the written statement made by the deceased came up to the full legal requirements which entitled it to have the force and effect of evidence, or whether they believed that it did not speak the truth touching the homicide, is not apparent. It may have been that the jury did not find as a matter of fact that- the written statement of the deceased fully measured up to the requirements of the law, so as to make it testimony. There are some expressions, in the testimony of the able lawyer who wrote down this statement, which indicate that the deceased, when he made it, was not fully conscious of his condition, and, at the time that he made the statement, still entertained some hope of recovery. The positive, absolute conviction that death is certain is an essential before a dying declaration is evidence, — a certainty not limited by doubts or reserves. There must be a settled, hopeless expectation of death in the declarant. The deceased in this case declared, when making this statement, “He hoped to get well, but could not expect to get well, in view of his condition.” But whatever may be the real truth touching this matter, it is, nevertheless, perfectly clear that the jury did not consider the alleged dying declaration at all, in making up their verdict; for it was impossible, legally speaking, if they gave any weight to the dying déclaration as.evidence, that the verdict could have been for any crime less than wilful, causeless assassination. Neither did the jury give any credence to the statement of the accused; for this statement, with all reasonable deductions therefrom, made a perfect case of justifiable homicide in self-defense. We must therefore look to the evidence of the witnesses who testified in the case, if we are to find any support for the verdict of voluntary manslaughter.

It is earnestly insisted, by the learned counsel for the plaintiff in error, that the evidence presents no middle ground; that the homicide was either murder or justifiable in self-defense. While we think, from a careful study of the evidence, that there is a very large preponderance of evidence in favor of the theory of the State that the crime of murder was committed by the accused, 3'et we find in this evidence some support for the conclusion at which the jury arrived. These final judges of the facts rejected alike the theory of the State and the theory of the -defendant. They weighed all the evidence, accepted some portions of it as true, and discarded other portions as untrue. The jury found in the evidence the following facts: that the defendant and the deceased had been friends; that on the day of the homicide, and just shortly before the shooting took place, the deceased was at the home of the defendant, on his invitation, engaged there with other friends, as the defendant’s guest, in social pleasure; that the deceased, without any provocation, and under the influence of intoxicants, gave to the defendant what the defendant construed to be an insult both to himself and his family, and threatened to take the defendant’s life; that the deceased left the home of the defendant, but the defendant, still rankling under the supposed insult, which was greatly magnified by his intoxicated condition, in a short time sought the deceased for the avowed purpose of securing from him an apology for his conduct, and, in a few minutes, found the deceased, and the difficulty was renewed and the shooting occurred; that both were armed and both were under the influence of intoxicating liquors. Whether the insult which the deceased had given to the defendant at his house was sufficient to .justify the excitement of passion in the defendant, and whether the defendant had had sufficient cooling time before he again met the deceased, were all questions for the sole determination of the jury. Some of the facts show that there was a sudden quarrel, followed by a combat, in which both used deadly .weapons, weapons which they already had in their possession and which they had not procured for the purpose of using in the combat. And because of the existence of these facts in the evidence, which the jury had the right to accept as the truth of the case, we think the court properly charged the law of voluntary manslaughter, and that the verdict for that offense is not without support in the evidence. Gann v. State, 30 Ga. 67; McDuffie v. State, 90 Ga. 787 (17 S. E. 105); Fish v. State, 3 Ga. App. 34 (59 S. E. 192).

Judgment affirmed.

Powell, J., disqualified.


source: Caselaw Access Project

license: Public Domain

text:
    1111.
    CHRISTOPHULOS CAFÉ COMPANY v. PHILLIPS.
    1. Wllere the plaintiff sues for special damages alone for breach of contract, and such special damages are not recoverable under the allegation of his petition, considered in connection with the contract which is made a part of the petition, he is limited, in his .recovery, to the special damages alleged, and there can be no recovery for general or nominal damages.
    2. The allegations of the petition, in connection with the contract made a part of the petition, clearly showing that the special damages sued for were not such as could be recovered by the plaintiff for the breach of the contract, the trial court did right, on demurrer, in dismissing thé petition.

      Action for breach of contract, from city court of Macon — Judge I-Iodges. March 21, 1908.
    Submitted June 10,
    Decided October 12, 1908.
    The Christophulos Café Company, a corporation, brought suit against John Phillips, to recover damages for breach of contract. By the contract, which was made a part of the petition, the defendant agreed to build for the plaintiff a counter and a refrigerator of certain dimensions, for specified sums, the job to be-completed on September 15, 1907. The contract was executed on August 2, 1907. The petition alleges that the defendant failed to comply with this contract and did not furnish to the plaintiff by the day agreed upon, or at any other time, either the counter or the refrigerator. It is alleged that the counter and the refrigerator were to be installed in a café which the petitioner was to open, in the city of Americus, Georgia, and that both parties to the contract understood that time was of the essence of the contract,, and that the counter and the refrigerator were to be furnished and delivered on September 15, 1907; that, relying upon the promises and agreement of the defendant as contained in the contract, the plaintiff employed skilled cooks and waiters to report for work at Americus, Georgia, at the time the defendant agreed to furnish said counter and refrigerator;, and that on account of the unsatisfactory labor condition prevailing, and the plaintiff’s-agreement to pay its help, the plaintiff was compelled to pay them their salaries for the period of one month, as well as the board of' one of them for one month, in order to retain them, besides the rent of the store for one month, during which time the store was unused, awaiting the completion of the contract by the defendant; that after the neglect of one month on the part of the defendant to complete his contract, it became necessary for the plaintiff to have the two articles set out in the contract constructed by another person; and that by this breach of the contract the plaintiff was damaged in the sum of $206, as shown by an itemized statement of the amounts the plaintiff was compelled to pay out by reason of the breach, as follows: “Tom Jones, unemployed', for one month, $40; Jim Mitchell, unemployed, for one month, $40; board of Jim Mitchell for one month, $38; George Adams, manager, unemployed, one month, $48; rent of store unused, $40; total, $206.”
    The defendant filed a general and special demurrer to the petition, on the following grounds: (1) that the items of damages alleged are too remote, and are not such as were contemplated when the contract was made, and are not such as the defendant can be made liable for; (2) that the petition sets out matter not within the terms of the contract, in that, by the contract, there was no agreement concerning the delivery of the counter or the refrigerator in Americus, Ga., or elsewhere) and the contract does not state that time is of the essence of the contract; (3) that the petition sets up matter of labor between the plaintiff and third persons, outside of the contract, and concerning which no notice is alleged to have been given the defendant by the plaintiff; and that the defendant has no concern with . the employment of cooks and waiters, and is not in any wise responsible for the alleged unsatisfactory condition of labor, and not liable for the salaries or board of such laborers, or for the rent of the store; (4) that the allegations of the petition are not sufficiently specific to enable the defendant to investigate and ascertain the truth or falsity of the claim, as it is not stated in what capacity the laborers were eim ployed, or whether they were white or colored, nor when they were employed, or what contract was made between them and the plaintiff, or what store the plaintiff rented, or from whom he rented it, or the amount of rent that should have been paid for it, or the length of time for which it should have been paid. The court sustained the demurrer and dismissed the petition; and this judgment is the error assigned.

      Glawson & Fowler, for plaintiff.

      Arthur L. Dasher, for defendant.
   Hill, C. J.

(After stating the facts.) The plaintiff must stand or fall by the terms of the contract which he sets out, and can only recover such damages as arise naturally and according to the usual course of things from the breach of the terms of the contract, and such as the parties contemplated when the contract was made, as a probable result of its breach. By the terms of his contract, the defendant agreed to build for the plaintiff a counter and a refrigerator according to specified dimensions and for a stipulated price, and agreed that the job should be completed on the 15th day of September, 1907. It is insisted by the defendant that the contract is in two distinct paragraphs, the first of which refers to the counter, and fails to specify at what time it was to be completed; and tbat the second paragraph, relating to the refrigerator, contains the agreement as to completion by the 15th day of September, 1907, and is limited, therefore, to the time when the refrigerator was to be completed. We think, taking the contract as a whole, that the reasonable interpretation on this point is, that both the counter and the refrigerator were to be completed by the 15th day of September, 190.7; that the words “this job,” occurring at the end of the contract, refers to the entire contract, and not to a separate part of it. There is nothing in the contract, however, that indicates for what purpose the plaintiff needed the articles in question, or where they were to be used; and there is no allegation that the defendant was informed or knew anything as to these facts. There is no allegation that the defendant knew that the plaintiff was going to rent a store for the purpose of operating a restaurant; that it was to use either the counter or the refrigerator in such restaurant, or that it was going to employ laborers to carry on the restaurant in which the counter and the refrigerator were to be installed. There are many places where counters and refrigerators are used, other than restaurants. Neither is it alleged that the restaurant of the plaintiff could not have been operated without the counter and the refrigerator, and that this fact was known to the defendant when he made the contract. Under the contract and the allegations of the petition, we think the only measure of damages resulting from a breach of the contract was the difference between the cost of the counter and the refrigerator, in the market and the contract price. It certainly would be unreasonable to hold that the defendant, as the result of his breach of the contract, was liable to pay as damages to the plaintiff the items of damages sued for. The amounts paid out for the hire of two skilled laborers, a manager for the restaurant,*and the rent of the store, can not be said to have been contemplated by the defendant as a probable result of a breach of a contract which only bound him to build for the plaintiff a counter and a refrigerator. It would be as reasonable to claim that the plaintiff could have rented a hotel in which the counter and refrigerator were to be used, and have hired fifty or a hundred waiters to work therein, and that, because the defendant failed to furnish the counter and the refrigerator by the time specified, he should pay as damages the rent of the hotel and the hire of all these laborers. Especially so when there is no allegation that defendant knew, when the’ contract was made, that the counter and the refrigerator were- to be used in the hotel, and that the hotel could not be carried on without them. Certainly the defendant was not responsible for the unsatisfactory condition of labor prevailing, which the plaintiff said made it necessary for him to pay the salaries and board of the laborers for the space of one month, who were to be employed in his restaurant. We conclude that the defendant was in no wise liable for the items of special damages claimed by the defendant. There is no claim for general damages, and the judgment sustaining the demurrer and dismissing the petition must be affirmed. Civil Code, 1895, §§3799, 3802; Wright v. Smith, 128 Ga. 432 (57 S. E. 684).

Judgment affirmed.


text:
    1114.
    RUSHING v. MEDICAL COLLEGE OF GEORGIA.
    A husband is entitled to tbe dead body of his wife for burial, and in the condition in which death leaves it, but a slight incision by the attendant surgeon in a hospital, to ascertain the cause of death, authorized by the board of health of the city in which the hospital is located, and in obedience to the requirements of a city ordinance, in order that a certificate of burial may be obtained, not otherwise obtainable, where there is no cutting or removal of any limb or organ, and the incision is properly closed and not visible when the body is clothed, does not infringe this right.
    Action for damages, from city court of Richmond county — - Judge Hammond presiding. February 29, 1908.
    Submitted June 10,
    Decided October 12, 1908.

      F. W. Capers, for plaintiff. W. H. Fleming, for defendant.
   Hill, C. J.

This case has been reviewed by this court before, and certain questions' of law, raised by demurrer, decided in favor of the plaintiff (1 Ga. App. 468). It is now before us after a trial on the merits and a verdict in behalf of the defendant, and on .an assignment of error in the judgment overruling the plaintiff’s motion for a new trial. Two material questions are presented by the record: (1) whether the Medical College of Georgia, the defendant in the court below, is responsible for the tort, if such was committed; and (2) whether a tort is shown to have been, committed. The view that we take of the second question makes the first question purely an abstract one and unnecessary to be determined. The evidence, briefly stated, is as follows: Plaintiff’s wife, during his absence from home, was taken sick. The family physician was called in. He decided that it was necessary to take the patient to the city hospital for treatment and attention. He so informed the members of the family, and was permitted by them to take the patient to the hospital. He delivered her to what was known as the charity ward of the hospital, taking her to this ward because he had no instructions to the contrary, and had, on three previous occasions, taken the plaintiff himself and two of his children to the charity ward of this hospital. He had no. authority, under the rules of the hospital, to minister to the patient in that ward of the hospital, and she was taken in charge by the regular physician or surgeon of the hospital. This surgeon found the patient in a moribund condition, past help from either medical or surgical assistance. She died in the hospital in a few hours after she' had been entered. The physician in charge communicated with the family physician who brought her there, requesting that he make a burial certificate. The family physician declined to do so, stating that he was not able to make a burial certificate, as he did not know the cause of death. The physician in charge at the hospital could not make a burial certificate, because he did not know and could not determine, without an autopsy, the cause of death. It was necessary, under an ordinance of the city which was in evidence, to have a burial certificate by an attending physician, as to the cause of death, before the body of the deceased could be interred in any of the cemeteries of the city. In this situation the physician at the hospital communicated with the chairman of the board of health of the city, stating to him the facts and asking for his directions. The chairman of the board of health directed him to have an autopsy made, for the purpose of determining the cause of death. In pursuance of this direction and authority, a surgeon of the hospital made a slight incision into the cavity of the abdomen, and discovered that the cause of death was uremic poison. No limb or organ was cut or. removed, the body was in no way mutilated; the slight incision was sewed up, and was not discoverable except by an examination. A certificate of burial was made by the surgeon who performed the autopsy, and the body was delivered to the undertaker for the family, and was buried in one of the city cemeteries. These facts are not disputed, and, we think, utterly, refute the.gravamen of the complaint made by the plaintiff in his petition, that there was an unauthorized and unlawful mutilation of the body of his wife, “to gratify professional curiosity, or for some other unlawful purpose.” This court decided, when the case was here before, that the husband was entitled to the corpse of his wife for burial, and in the condition in which death left it. But where a necessary incision is made by an attendant surgeon in a hospital, by authority of the board of health of the city in which the hospital is situated, in order to ascertain the cause of death, so that a certificate of burial can be made in obedience to the requirements of a city ordinance, where there is no removal of any limb or organ, or cutting or mutilating of either, and where such slight and necessary incision is not visible except by an inspection, and not visible at all when the body is clothed, this right of the husband is not infringed. Farley v. Carson, 8 Ohio Dec. (Reprint), 119 (5 Cin. Law Bulletin, 786). “A physician who performs an autopsy upon a dead body with ordinary care and skill, and in pursuance of the authority of the coroner or a city ordinance, is not liable, in an action by the family of the deceased, for the mutilation of the body without their consent.” Cook v. Walley, 1 Col. App. 163 (27 Pac. 950); Young v. College of Physicians, etc., 81 Md. 358 (32 Atl. 177, 31 L. R. A. 540).

‘ Whether the hospital where the autopsy was performed was controlled by and under the management of the defendant, or whether it was under the control and management of the City of Augusta, is immaterial, as it is manifest that no tort was committed by the surgeon who performed the autopsy. It appears that he did his duty, under the facts of the case, decently and with due regard for the rights of the husband, and tenderly toward the dead. The jury so found, and the evidence fully justifies the finding. While we fully share in the sentiment eloquently expressed by counsel for plaintiff in error, that the body of the dead, when the soul has departed, is still sacred to the loved ones, and that they alone are entitled to it for the last tender ministrations of love, yet we can not lose sight of the fact that the laws of health, duly enacted by municipal authority in order that the living may be-protected, are salutary and should be observed.

Judgment affirmed.


author: Russell, J.

text:
    1182.
    GRAHAM v. MASSENGALE ADVERTISING AGENCY.
    It is not error to strike a plea in abatement which is filed to an action-brought upon an unconditional contract in writing and is based upon, the pendency of a suit on an open account between the same parties. Especially is this true where it appears that the account, the subject-matter of the prior suit, has been settled by the defendant, without any agreement as to the costs, and where, in the absence of an agreement as-to the payments of costs, the plaintiff’s liability for the costs, if any,, ended, and the defendant became, by law, liable therefor.
    Complaint, from city court of Bainbridge — Judge Harrell. April 20, 1908.
    Submitted July 14,
    Decided October 12, 1908.

      E. S. Longley, for plaintiff in error.

      Donalson & Donalson, contra.
   Russell, J.

All of the questions raised by the writ of error-are abandoned by the plaintiff in error in his brief, except the assignment of error which insists that the court erre¿l in striking the defendant’s plea in abatement. In addition to what we have said in the headnote, it is only necessary to state that the Massengale Advertising Agency, having brought an action against the plaintiff in error to recover upon an open account, effected a settlement with him, by the terms of which he paid $100 in cash, and gave certain promissory notes in settlement of the remainder of the account. These promissory notes were the basis of the-second suit. It appears that both suits were open upon the docket at the time that the plea in abatement was filed, but it is uncontroverted that the second suit was upon the notes given in settlement of the first. It is clear, where one settles an action instituted against hint, that, in the absence of any agreement between the parties to the controversy, the costs in the case become chargeable -against him. The case, therefore, does not fall within the provisions of §5043 of the Civil Code, which provides that where.there is a dismissal or nonsuit, the plaintiff can not recommence' his action -without paying costs. In this case the plaintiff did not. dismiss his action, and his right was to have, a judgment for the costs against the defendant, which the court properly allowed, entered nunc pro tunc. This being true, there was no merit in the plea in abatement. ■ Judgment affirmed.


text:
    1215.
    Young v. The State.
    Accusation of cheating and swindling, from city court of Moultrie — Judge McKenzie. May 18, 1908.
   Hill, C. J.

1. All the objections made by tlie plaintiff in error to tlie act. of tlie General Assembly approved August 15, 1903 (Acts 1903, p. 90), making criminal the fraudulent obtaining of money or other thing of value under a labor contract, on the ground that the act is repugnant, to certain provisions of the Eederal and State constitutions, having been fully settled by the decisions of the Supreme Court, this court refuses to certify any of the questions to the Supreme Court, especially where-there is no request made to have any of these decisions reviewed. Lamar v. State, 120 Ga. 312 (47 S. E. 958) ; Banks v. State, 124 Ga. 15 (52 S. E. 74, 2 L. R. A. (N. S.) 1007) ; Vance v. State, 128 Ga. 661 (57 S. E. 889) ; Mulkey v. State, 1 Ga. App. 521 (57 S. E. 1022).

2. “Peonage is a status or condition of compulsory service based upon the-indebtedness of the peon to the master. The basal fact is indebtedness.” Clyatt v. U. S., 197 U. S. 207 (25 Sup. Ct. 429, 49 L. ed. 726). A. State statute which makes criminal the procurement of money upon a. fraudulent contract to perform service, and the fraudulent abandonment of the contract after having so procured the money, is not a violation, of the Federal Statutes (Rev. Stat. §§1990, 5526 (U. S. Comp. St. 1901, pp. 1266, 3715)), prohibiting involuntary service or labor.

3. The fraudulent act of the promisor in procuring the money on his contract does more'than make a debt; it also constitutes a crime; and the-purpose of the act of 1903, supra, is not to create a remedy for the collection of the debt, but to provide punishment for the fraudulent and successful intent to cheat and defraud. Mulkey v. State, supra.

4. It is permissible, in an accusation or indictment for a violation of the-act of 1903, supra, to embrace in a single count various sums of money, as having been fraudulently procured by the promisor from the promisee . at different times, the various amounts so procured making up the aggregate sum charged to have been fraudulently obtained by the accused. Such a count does not charge separate offenses, but includes only one offense. Jackson v. State, 76 Ga. 551 (7).

6. The accusation sets out in apt and sufficient language the offense as. defined by the statute, and the evidence proves the offense as charged.

Judgment affirmed.

Submitted June 30,

Decided October 12, 1908.

James Humphreys, Alfred R. Kline, for plaintiff in error.

W. F. Way, solicitor, contra.


author: Powell, J.

text:
    1231.
    IVEY v. THE STATE.
    1. An ordinary snbptena signed by tbe clerk and issued on bebalf of the defendant in a criminal ease is sufficient to compel tlie attendance of a witness from any portion of the State. It is not required that subpoenas for the defendant’s witnesses residing out of the county of the prosecution shall be countersigned, either by the presiding judge or the solicitor-general.
    2. If a panel of less than forty-eight jurors is put upon the prisoner and he does not challenge the array, but proceeds with the selection of the jury, he can not -thereafter, as a matter of right, demand the filling of the panel.
    3. A voluntary confession or incriminatory statement is not inadmissible merely because it was made pending an illegal arrest.
    Indictment for uttering forged cheek, from Warren superior court — Judge Worley. May 5, 1908.
    Submitted June 30,
    Decided Ocober 12, 1908.

      M. L. Felts, for plaintiff in error.

      David W. Meadow, solicitor-general, E. P. Davis, contra.
   Powell, J.

Tutt Ivey was prosecuted for knowingly uttering a forged check. He presented at the Citizens Bank of Warrenton a forged check purporting to be signed by one of its customers, payable to Will Smith and endorsed in blank in the name of Will Smith. There was evidence from which the jury might have found that the defendant himself committed the forgery, as well as uttered it; but he set up, that he got the check innocently from Will Smith at Macon, Ga., in the presence of John Ivey; that Will Smith had gone on to Tampa, Fla., but John Ivey was still at Macon. He made a motion for continuance, on the ground, that he had placed a subpoena in the hands of the sheriff of Warren county for John Ivey, and that by reason of the fact that the sheriff had not served the subpoena the witness was absent. It appears, from the note of the presiding judge, that this motion for continuance was overruled on the ground that the subpoena was not countersigned by the judge or by the solicitor-general. If the judge had placed the exercise of his discretion on-the ground that the showing was otherwise deficient, we might not reverse his judgment, but the reason given for refusing to grant the continuance is entirely insufficient. There is no law requiring the signature of the judge or of the solicitor-general to a subpoena for the attendance of -a non-resident witness for the defendant. The Penal Code, §1114, provides that “no subpoena for a non-resident witness for the State shall be issued, unless signed by the clerk of the court and the solicitor-general of the circuit.” As to nonresident witnesses for the State this is mandatory. Harris v. Early County, 96 Ga. 186 (22 S. E. 704). Penal Code sections 1115 to 1117 inclusive relate to the method of computing and collecting the fees of non-resident witnesses subpoenaed on behalf of the State. Section 1118 is as follows: “The foregoing provisions of this article shall apply to the defendant’s witness when, in the discretion of the presiding judge, the end of justice may demand it.” An examination of the statutes and the amendments to statutes on which these code sections are based will disclose that the words “foregoing provisions,” found in section 1118, apply to the three sections immediately preceding, and not also to section 1114. (Compare the act approved August 1, 1879, Ga. Laws 1878-9, p. 66, with the act approved October 8, 1879, Georgia Laws 1878-9, p. 47.) That is to say, it simply provides that the judge- may require the fees of non-resident witnesses for the defendant to be paid by the county, at the rate and in the manner prescribed as to State’s witnesses. This is in general done by an order passed by the judge after the witness has attended and he has satisfied himself, from an investigation into the facts, that there has been no collusion between the witness and the party to have the former subpcenaed for the purpose of making a claim for fees, and that the defendant is unable to pay the fees (or under the particular circumstances should not be put to the injustice or hardship of doing so), and that the substantial justice of the whole situation requires that the county, and not the witness or the defendant, should pajr the amount of expense thus incurred. In some cases, for instance, where the judge has information in advance that the witness is too poor to pay his expenses in coming to the trial, and his testimony is important, it is expedient and altogether legal for the court to order that the witness be subpcenaed for the defendant at the expense of the county. Primarily, of course, the defendant is chargeable with the fees of his own witnesses. He is not chargeable, however, unless he is convicted. Howell v. Blackwell, 7 Ga. 443; Roberts v. State, 72 Ga. 677; Constitution, art. 1, sec. 1, par. 10 (Civil Code, §5707). It must be remembered that the constitution guarantees that every person charged with an offense against the laws of this State “shall have compulsory process to obtain the testimony of his own witnesses.” (Civil Code, §5703.) The ordinary process is a subpoena signed by the clerk; certain rare cases, as where the witness is a prisoner or a convict, are the exceptions. A subpoena in a criminal case is sufficient to compel the attendance of a witness from any part of the State. The requirement that the solicitor-general shall countersign the subpoenas for non-resident witnesses for the State is a salutary provision; for he is the State’s counsel and is informed as to what witnesses are essential to the establishment of the State’s case. As to the prisoner’s defense, this officer, however, has an adverse relation; not he, but the prisoner and his counsel, should determine what witnesses will be needed in the defense. It would be unreasonable to hold, in the absence of clearest legislative declaration to the contrary, that the defendant, in' order to enjoy his constitutional right of compulsory process for the attendance of such of his witnesses as live out of the county, should inform the State’s counsel of the'names of these witnesses, and disclose to him the materiality of their testimony, and that even the very privilege of compulsory process itself should be dependent upon the State’s counsel’s liberality, or even discretion, in approving the subpoenas. We seriously doubt that such a limitation upon the guaranteed compulsory process could be upheld as against proper constitutional attack. In the , language of an old -time lawyer — not a solicitor-general, “The State has vested rights; but the defendant has some rights.”

A panel of twenty-five jurors ivas put upon the prisoner. So far as the record discloses, he mads no objection — in no wise challenged the array. The record being silent on the question, it will be presumed that the panel was put upon the prisoner with the ordinary formality. Reed v. State, 73 Ga. 567. Just before the panel was exhausted, he demanded the full panel of forty-eight. The court refused this demand and put the subsequent jurors upon him in small panels. Certainly the prisoner is entitled to have every panel put upon him in the manner prescribed hy law, unless he waives the formality; and the first panel should consist, in a felony case, of forty-eight jurors. This is a valuable :xight, and will be enforced by the courts. Cochran v. State, 62 Ga. 731. We digress to say that the opinion by Judge Bleckley in the case just cited should be read periodically by every judge and lawyer. We sometimes become impatient with what we call the technicalities of the law; to read this opinion brings us back to a truer appreciation of what a noble thing it is to obey the law .as it is written. To return to the discussion, the putting on of the panel may be waived expressly or by implication. Vaughn v. State, 88 Ga. 731 (16 S. E. 64). If the panel does not contain the requisite number of jurors when it is put upon the defendant, the law prescribes, in Penal Code, §972, his sole remedy, — he may challenge the array. If he does not challenge the array, no other method of complaint as to the deficiency of the panel is open to him. Jordan v. State, 22 Ga. 546; Thomas v. State, 27 Ga. 287; Moon v. State, 68 Ga. 695. If the jury can not be made up from the first panel, “the court shall continue to furnish panels of such number of jurors as the court in its discretion may think proper, until a jury is obtained.” Penal Code, §858.

A voluntary confession or incriminatory statement is not inadmissible merely because it was made pending an illegal arrest. Thompson v. State, ante, 649 (62 S. E. 99).

Solely for the error dealt with in the first division of this opinion the judgment is reversed. Judgment reversed.


text:
    1264.
    Jackson v. The State.
    Accusation of trespass, from city court of Fitzgerald- — Judge Jay. June 9, 1908.
    Submitted October 5,
    Decided October 12, 1908.

      E. Wall, E. S. Fuller, for plaintiff in error.

      O. H. Elkins, solicitor, contra.
   Hill, C. J.

Where there is no error of law assigned and the verdict is supported by the evidence, the judgment of the court below, refusing a new trial, will be affirmed. Judgment affirmed.


text:
    1269.
    CRIPE v. THE STATE.
    1. The State, in its proof, is not restricted to tlie date alleged in the indictment; and a conviction for crime is authorized, where the offense is-shown to have been committed on any day, prior to the indictment, which is within the statute of limitations.
    2. Proof of reputation for lewdness may be offered, to discredit the testimony of a female witness; but the jury may believe such a witness to be truthful, although not virtuous.
    3. The courts may take judicial cognizance of the fact that lager beer is, an intoxicating malt liquor.
    Accusation of unlawful sale of liquor, from city court of Fitzgerald — Judge Jay. June 8, 1908.
    Submitted October 5,
    Decided October 12, 1908.

      E. S. Fuller, for plaintiff in error.

      O. H. Elkins, solicitor, contra.
   Russell, J.

Cripe was convicted, on a special presentment, for-selling intoxicating liquor. He excepts to the judgment overruling his motion for new trial. The arguments presented in. support of the general grounds of the motion are, that the presentment charged the offense to have been committed on the 3d. of Juljq 1907, whereas all of the evidence shows that the sale, if any, was made on the 4th of July; and that the onty evidence of the sale of whisky is from two women, whom the evidence shows to be of lewd character.

These points are so well settled by authorities that we-deem even the reference to them which we have made in the head-notes almost unnecessary.

Another point which is presented is that the.evidence fails-to show that the beer which was sold was intoxicating. The authorities differ much as to whether judicial notice shall be taken of the fact that beer is intoxicating. The stronger current of. authority is that where the allegation and the proof are confined to beer, evidence must be adduced to show that such beer is intoxicating. This is due to the fact that there are many beers,, such as persimmon beer, ginger beer, spruce beer, and others, which are not generally supposed 'to be intoxicating. However,, one of the witnesses in this case testified that the beer in question was lager beer. Lager beer is so generally known to be an intoxicating malt liquor that the courts can as well take judicial. notice of its qualities in that regard as of any other fact of common notoriety which the courts,. in common with every other well-informed person, can be presumed to know. See Black on Intoxicating Liquors, §17; 7 Enc. Evidence, 675, D; Tinker v. State, 90 Ala. 647 (8 So. 855); Walker v. State, 38 Ark. 656; Netso v. State, 24 Fla. 363 (5 So. 8, 1 L. R. A. 825); State v. Giersch, 98 N. C. 720 (4 S. E. 193); State v. Goyette, 11 R. I. 592; State v. Graveline, 16 R. I. 40 (16 Atl. 914); State v. Kibling, 63 Vt. 636 (22 Atl. 613); State v. Church, 6 S. D. 89 (60 N. W. 143). We are aware that the Supreme Court of New York takes the contrary view, holding that the question should be left with the jury. In our own State, in Snider v. State, 81 Ga. 753 (7 S. E. 631, 12 Am. St. R. 350), the question as to whether the court should take judicial notice that beer was an intoxicating liquor was not before the court, nor was lager beer involved. The liquor there under consideration was pure alcohol. We think,, however, that from the reasoning in the Snider case we can safely deduce that the court may take judicial cognizance of the fact that lager beer is intoxicating; because it is a fact, known to every man of common understanding, that what is ordinarily known as lager beer, will intoxicate; and also the further rule that where a beer is not well known and recognized as an intoxicant, proof that it will intoxicate should be required. The verdict against this defendant can stand upon proof of the sale of whisky, though the date of the sale is not more definitely stated than that it took place in the last two years; but the verdict is equally well supported by proof of the sale of lager beer on the 4th of July, because we conceive that judicial knowledge of intoxicating quality extends as much to lager beer as to whisky.

Judgment affirmed.


text:
    1274.
    Roberson v. The State.
   Hill, C. J.

1. The court should instruct the jury as to all the methods by which a witness may be impeached, so far as such instructions are authorized by the evidence; but failure to do so will not require the granting of a new trial, where no written request was made to charge the jury as to the mode of impeachment omitted from the instructions on that subject. Millen & Southwestern R. Co. v. Allen, 130 Ga. 656 (5), (61 S. E. 541).

Accusation of unlawful sale of liquor, from city court of Swainsboro — Judge Mitchell. June 8, 1908.

Submitted October 5,

Decided October 12, 1908.

Williams & Bradley, for plaintiff in error.

Henry B. Daniel, solicitor, contra.

'2. Although the violation of the penal statute was not flagrant, and the accusation not strongly supported by the evidence, there being some evidence in support of the verdict, this court can not Interfere.

Judgment affirmed.


text:
    1281.
    WESTFALL v. THE STATE.
    1. An indictment which charges in one count a violation of section 420 of the Penal Code, in running six freight-trains on a railroad .in the county on Sunday, is not demurrable on the ground that it charges six distinct and separate offenses in one count.
    2. Where a railroad company operates a railroad through several States, with separate divisions of transportation, and a different superintendent of transportation for each division, the superintendent - of transportation having charge of the transportation for the division which embraces that part of the railroad on which a freight-train is'run on the Sabbath day in violation of the statute is the officer designated by the statute to be indicted for such violation.
    3. Where a freight-train running on a bona fide, practicable schedule, leaving the starting point before Sunday, scheduled to reach its destination before eight o’clock Sunday morning, is detained by unavoidable circumstances, so that it can not reach its destination before eight o’clock Sunday morning, it can, nevertheless, continue to run after eight o’clock Sunday morning, until it reaches its destination, without violating the law.
    4. Where a freight-train has left its starting point upon a schedule giving it ample time to reach its destination within the time allowed by the statute relating to the running of trains on Sunday, the right to continue to destination, when prevented by unavoidable delays from completing its trip within the time required by the regular schedule, is not affected by the fact that the unavoidable delay has lasted such a length of time as, in railroad parlance, to “kill” that schedule and require that the delayed train be ordered to run to its destination on an extra schedule.
    5. The verdict is without evidence to support it.
    Indictment for running freight-train on Sunday, from Douglas superior court- — Judge Edwards. June 15, 1908.

      Argued October 5,
    Decided October 12, 1908.
    Westfall was fried and convicted in the superior court of Douglas county, for a violation of section 420 of the Penal Code, relating to the running of freight-trains on the Sabbath day through anj'- county in this State. The charging part of the indictment is in the following language: "he, the said A. H. Westfall, being then and there superintendent of transportation of the Southern Eailway Company, and, as such officer, having charge of the business of the transportation department of that portion of the Southern Eailway Company, embracing the railroad running from Atlanta in the State of Georgia through Douglas county to the cityi- of Birmingham in the State of Alabama, did, on the 14th day of April, 1907, said day 'being the Sabbath dajq unlawfully run and cause to be run in and through Douglas county, over said railroad, six freight-trains of the Southern Eailway Company, all going east, and each drawn by an engine pulling a train of freight-cars, all of said freight-trains arriving and departing from the city of Douglasville during the afternoon of said date.” The defendant demurred to this indictment, on the grounds, (1) that six different offenses are charged in one count of the indictment, to wit, the running of six freight-trains; and (2) that the indictment does not charge the defendant with being the superintendent of transportation of the Southern Eailway Company, but only of that portion thereof between the cities of Atlanta and Birmingham. The court overruled this demurrer, and the defendant excepted pendente lite.
    The material part of the evidence is as follows: The defendant was the superintendent of a division of the Southern Bail-way, known as the Atlanta division, extending from Weems, Alabama, to the city of Atlanta; and the movement of the trains of this division was under his supervision and management, he being the officer in charge of the transportation of trains in that division. There was a general superintendent of transportation •of all the divisions of the Southern Eailway Company, who had-supervisory charge of all the division superintendents of transportation. The six freight-trains in question ran through Douglas county after eight o’clock a. m. on the Sunday charged in the indictment, arriving at their destination, Atlanta, at different hours in the afternoon and evening of. that Sunday. The six freight-trains left their initial points in the State of Alabama on Saturday, running on a schedule which would have allowed each one of them time to reach its destination before eight o’clock Sunday morning, if not detained by unavoidable delays. These trains were all prevented from making their trips in schedule time, and were delayed at Waco, by the fact that there was no water in the tank at that place, to supply the engines; and the tank was not supplied with water at Waco until about noon on Sunday. The water tank at Waco was empty Saturday night, because the pool from which water was pumped into the tank was pumped dry on Saturday night about six o’clock, and there was not sufficient water in the pool to pump into the tank, until Sunday morning, •when the employee of the company in charge of the pumping station began to pump, and filled the tank as rapidly as could be done, for the purpose of supplying the engines. The failure to keep water at Waco prevented the freight-trains from complying with their regular schedule, and caused them to be delayed more than twelve hours; and when they left Waco on Sunday, about noon, they were ordered to make the run to Atlanta on what was known as an “extra schedule.” The employee of the company at Waco whose duty it was to keep the tank supplied with water did not notify any one connected with the movements of the trains of the fact that the supply of water had failed, and those in charge of the, freight-trains did not know of the failure of water, until they had arrived at Waco. There was another water tank between. Atlanta and Waco, forty-one miles west of Villa Eica, but the engineers, when they arrived at Waco, did not have sufficient water to continue to run to this water tank. The train dispatchers were directed by the superintendent of transportation not to start any freight-trains on Sunday, and not to start them on a schedule unless they had schedule time to reach their destination by eight o’clock Sunday morning; and when these trains were started from their initial points on their regular schedule, the railroad authorities did not know that the water supply was insufficient at Waco; and they did not find it out until the next Sunday morning, when the freight-trains were at Waco.
    Besides the general grounds in the motion for a new trial, there are three grounds assigning error in certain excerpts from the charge of the court to the jury, the first of which is as follows: “A freight-train running over a road on Saturday night, if the time of its arrival at destination, according to schedule by which it started on the trip, be not later than eight o’clock Sunday morning, this will be a justification for the running of the train on the railroad up to eight o’clock Sunday morning. And if it is shown that a train starts on a schedule which would put [it] into the place of destination by or before eight o’clock Sunday morning, or not later than eight o’clock Sunday morning, and the train starting on such schedule runs up till that time, then the defendant would not be guilty.” The error assigned in this charge is, that it “limited the right to run a freight-train up to eight o’clock Sunday morning;” and it is contended that “the court should have further charged the jury that if the train would have reached its destination by eight o’clock Sunday morning if run on schedule time, yet if the same was unavoidably delayed, it could still be run to its destination, although to do so would require its movement later than eight o’clock Sunday morning.”
    The second ground assigning error in the charge of the court is covered by the demurrer as to the defendant not being the proper official designated as liable to an indictment for a violation of its terms.
    The third ground is that the court erred in charging as follows: “In reference to schedules, I charge you, that if a train is started from Birmingham that will put it into Atlanta, the place of destination, before eight o’clock, and, on account of delays that arose along the line, that schedule was annulled by the superintendent of transportation or the officer having charge of the business of that department of the railway company, if that schedule was annulled and said train was started in this State on a new schedule, or by orders running it extra, then it would have no right to run any distance after midnight Saturday night, would have no right to run up till eight o’clock, and would have no right to run after eight o’clock; and if you find in this case that these trains named in the bill of indictment were run on a schedule made up after midnight Saturday night, and they were started on such schedule in this State after midnight Saturday night, then they would have no right to run any distance; and if the other elements of the offense are made out, that A. H. Westfall is the officer named in the statute and he is not justified in one of the two ways that I have called your attention to, then he would he guilty.” The objections made to this charge are that “it was not properly adjusted to the evidence in this ease,” and,, “under the evidence in this case, it is not the law.”

      Maddox, McCamy & Shumate, for plaintiff in error.

      W. K. Fielder, solicitor-general, contra.
   Hill, C. J.

(After stating the foregoing facts.)

It is entirety proper and in conformity with good pleading to charge in one count that the defendant violated the penal statute in running six freight-trains through the county on the same Sunday. While, .strictly speaking, the running of each train may have been a violation of the law, yet we think the running on the same day of six trains might well have been treated as but. one offense. Certainty this did not embarrass the defendant in making his defense or deprive him of any right. In fact this-method of pleading could not be otherwise than beneficial to the defendant. Wingard v. State, 13 Ga. 396; Walker v. State, 118 Ga. 772 (45 S. E. 621); Jackson v. State, 76 Ga. 551 (7); Young v. State, ante, 827 (62 S. E. 558).

The superintendent of transportation, having charge of the-business of the transportation department of that portion of the Southern Eailway Company over which the freight-trains were alleged to have been run in violation of the statute, was the proper-person to be indicted. Where a railroad system runs through several States, has separate divisions, and has a separate superintendent of transportation for each division, we think the superintendent of transportation of the division in which the law is-claimed to have been violated is the proper officer to be indicted,, under the terms of the statute (Penal Code, §420). The court, in considering a demurrer on this ground, could judicially recognize that the Southern Eailway Company was such a system; and the demurrer admits that the defendant was its superintendent-of transportation having charge of the business pf transportation, of that portion or division of its road over which the freight-trains were alleged to have run in violation of the law, on the day specified in the indictment. The section of the code defining this, offense designates, as the officer to be indicted, the one who is-primarily responsible for the running of freight-trains; and it-can not be doubted that the superintendent of transportation of the division embracing that part of the railroad where the alleged violation of law occurred fits the designation made by the statute. Vaughan v. State, 116 Ga. 841 (43 S. E. 249).

The charge of the court complained of in the first ground' of the amended motion for a new trial was error. If a freight-train leaves its starting point upon a practicable schedule which would bring it to its destination before eight o’clock on Sunday morning, of course the justification provided by the statute for the running of a train up to eight o’clock Sunday morning would be complete. The preamble to this act of the legislature shows, that the intention was to allow a train running on such schedule, as above stated, when unavoidably detained or delayed by acci-. dents or other circumstances, to continue running to its destina-tion, although to do so might require the running of the train on Sunday morning after eight o’clock. In other words, a complete defense is established when the evidence shows that the freight-train left its initial point within the time provided by the statute, and on a schedule that was practicable and could reasonably be complied with, and in the particular instance was prevented from being run according to schedule and within the time provided by the statute, because of unavoidable delays not due to bad faith of those who had charge of the movement of the train in question. The charge complained of instructed the jury that they could find.the defendant guilty if it appeared, from the evidence, that the train ran after eight o’clock on Sunday morning, regardless of the time of departure from its starting point, and regardless of all unavoidable delays that may have prevented the train from making its regular schedule, although in other respects it had fully conformed to the requirements of the statute. See Acts of 1874, p. 97; Brand v. State, 3 Ga. App. 628 (60 S. E. 339).

The charge complained of in the third ground of the amended motion for a new trial was, in our opinion, erroneous, for both the reasons stated. It was not adjusted to the evidence, because there was no evidence whatever that the regular schedules on which the trains started from their initial points were annulled by the superintendent of transportation^ or by any officer who had charge of the business of that department, of the railroad. The evidence was that the delay' of over twelve hours at Waco of the trains in question temporarily displaced the regular schedules and made it necessary for the trains not to leave Waco except under special orders. But the fact that such delay, under the rules of the company, amounted to a temporary displacement of the regular schedule, and the substitution therefor of an extra schedule, adjusted to the situation, made necessary by such delay, did not amount to an annulment by the superintendent of transportation of the regular schedule. If the freight-trains in question started from their initial points on a schedule which was practicable, and which could be reasonably run within the terms of the statute, and were unavoidably delayed in making such schedule, they would have the right to rim to their destination, regardless of the length of such unavoidable delays. The fact that, according to railroad technicalities, the regular schedule was “killed” by delays lasting longer than twelve hours, and that the freight-trains, after such unavoidable delays, started under new orders, does not affect in any manner the question. Of course a freight-train can not start from its initial point on Sunday, but if it starts from its initial point before Sunday, and on a schedule which gives it ample time to reach its destination in this State before eight o’clock Sunday morning, it has a right to do so; and if, after starting from its initial point before Sunday, it meets with unavoidable delay, and is thus prevented from making its regular schedule on which it started, it nevertheless has a right to continue its run to its destination after eight o’clock Sunday morning; and any delaj^s that are unavoidable and not caused by bad faith of the officers of the company having charge of the movements of such trains, whatever may be the length of such delays, do not destroy this right. The court, in the charge excepted to, considered the start from Waco after the delays as a start from the initial point, and that a start made on Sunday constituted a violation of the statute. We think this construction of the law was, for the reasons stated, erroneous.

We have examined the evidence in this case very carefully, and we have concluded that it fails to show any violation of the statute in question. There is no dispute that the schedules upon which these trains started from their initial points gave them ample time to reach their destination within the limitations of the law. There is no dispute that the trains were delayed at "Waco by a failure to get water at that point, which was the customary place for getting water, or that those in charge of the movements of the trains did not know that the water could not be obtained at this regular place, until the trains reached there. It may be that the employee of the company at Waco whose duty it was to keep the tank supplied with water could have notified the officers in charge of the movements of the trains that the water could not be procured at Waco; but this he did not do, ■and the trains went to Waco, the employees in charge of them reasonably relying upon the fact that at that point they would be able to get water. Under all- the circumstances of this case we think the delay was unavoidable, and was not caused by bad faith •of the defendant or of- those who - were in charge of the running of the trains, so as to render the defendant amenable to the penal statute, and that the verdict in this case is without any ■evidence to support it, and should be set aside as contrary to law.

Judgment reversed.


text:
    1292.
    Hall v. The State.
    Certiorari, from Irwin superior court — Judge Whipple. March 10, 1908.
    Submitted October 6,
    Decided October 12, 1908.

      H. J. Quincey, for plaintiff in error.

      Walter F. George, solicitor-general, contra.
   Hill, C. J.

1. The act of 1903 (Acts 1903, p. 83), which makes a juror who has served at any term of the superior court ineligible to serve at the next succeeding term, “relates to regular terms, and does not apply to either adjourned or special terms.” “An adjourned term is but a continuance of a regular term, and the act by its terms would not apply to jury service at such adjourned term.” Wall v. State, 126 Ga. 86 (54 S. E. 815). A plea in abatement, therefore, reciting that the indictment was returned at an adjourned term, by the same grand jury which had served at the prece’ding regular term of the court, was properly stricken on demurrer.

2. No other error of law is complained of, and the evidence supports the verdict. Judgment affirmed.


text:
    1294.
    STRINGFIELD v. THE STATE.
    1. Proof that an alleged offense was committed in a designated town or city will not suffice to establish the fact of venue, and consequent jurisdiction, in a court whose jurisdiction is coextensive with a county.
    2. (By Russell, J.) In a prosecution for drunkenness upon a public street or highway, the evidence must show that the street or highway in question had been laid out by the city or used by the public as such,, and had become such by legislative enactment or enactment of a city council under its charter powers, or by dedication, prescription, or otherwise.
    Accusation of drunkenness on public highway; from city court, of Baxley- — Judge Thomas. June 11, 1908.
    Submitted October 6,
    Decided October 12, 1908.

      W. W. Bennett, H. L. Williams, for plaintiff in error.

      V. E. Padgett, solicitor, contra.
   Russell, J.

Two points are raised by the present writ of error. The plaintiff in error insists, first, that his conviction was unsupported by the evidence, because there was no proof of the venue. The first witness for the State testified that the accused was drunk in the City of,Baxley. To our minds this would seem to be sufficient proof of the venue; for it would seem that-the court could take judicial knowledge of the fact that the City of Baxley is in Appling county, especially when the trial is proceeding in that city and in that county. The very act of incorporation of the City of Baxley declares it to be in Appling county; and all of Appling county is within the jurisdiction of the city-court of Baxley. In a previous case we have suggested the propriety of the passage of an act which would preclude any question as to the jurisdiction of the trial court being raised in an appellate court, unless it were first raised upon the trial in the-lower court. Hntil the passage, however, of some such law, this court must be controlled, upon the subject of the venue, by the rulings in Moye v. State, 65 Ga. 754 (in which it was held that proof thát the crime was committed in the City of Amerieus was not sufficient to establish the fact that the alleged crime was committed in Sumter county), in Cooper v. State, 106 Ga. 119, 32 S. E. 23 (in which it was held that proof that an act was committed in Lawrenceville did not establish that it was done in Gwinnett county), and in Murphy v. State, 121 Ga. 142, 48 S. E. 909 (in wbicb it was held that like proof that the defendant did a criminal act in the City of Atlanta did not establish the fact-that the offense was committed in Fulton county). All of these cases, as well as our decision in Smith v. State, 2 Ga. App. 413 (58 S. E. 549), are exactly parallel with the case at bar.

It is also insisted that the evidence was insufficient, because it failed to show that the public place where the defendant was. alleged to have been intoxicated was a public street or highway. The evidence upon this subject was that the defendant was drunk “on the public streets in the City of Baxley,-on Comas street, and on (Railroad street.” The majority of the court think this proof sufficient. In the opinion of the writer, however, this. opinionative evidence is insufficient to authorize a jury to reach the conclusion that the place in question was really a public street or a public highway. In Johnson v. State, 1 Ga. App. 195 (58 S. E. 265), we considered at some length the different methods in which public highways may be established; but we held, as I think we should again hold, that the evidence must disclose that the character of the street or road as a public highway is to be determined, not by the mere opinion of witnesses as to its publicity or continuous use, but by the methods by which the public highway was created. For the reason first stated, we are unanimous that we should reverse the judgment refusing a new trial..

Judgment reversed.


text:
    1295.
    Daniel v. The State.
   Powell, J.

In a criminal prosecution, when the State’s witnesses have testified that in a difficulty which occurred the defendant drew a pistol from his pocket and had it out in his hand during the difficulty, and the defendant’s witnesses, in whose presence and sight also the transaction occurred, have testified that they did not see him draw or have any pistol, it is error for the court to give the following charge to the jury: “I charge you, if you find some witnesses were present and had opportunity to know the facts and bring them to your consideration, and there was another class of witnesses, who say they didn’t know, the law requires you to believe the positive testimony. Positive testimony is., that of witnesses who know the facts; negative testimony is that where the witness doesn’t know the facts, or didn’t see it.” Hunter v. State, ante, 761 (62 S. E. 466). Judgment reversed.

Accusation of carrying concealed weapon; from city court of Sparta — Judge Little. June 15, 1908.

Submitted October 6,

Decided October 12, 1908.

R. H. Lewis, for plaintiff in error.

R. W. Moore, solicitor, contra.


text:
    1296.
    DANIEL v. THE STATE.
    No reversible error appears.
    Accusation of disturbing divine worship, from city court of Sparta — Judge Little. June 15, 1908.
    Submitted October 6,
    Decided October 12, 1908.

      R. H. Lewis, for plaintiff in error.

      R. W. Moore, solicitor, contra.
   Powell, J.

The only exception is to an instruction of the court to the jury in the following language: “It is not necessary for a defendant charged with an offense like this to go into the church to disturb it, or even to go on the church grounds to disturb the congregation. If, either in the- church or outside of it, he is guilty of any of the conduct defined in the section I have just read to you, section 418 [óf the Penal Code], which actually does disturb a congregation from the very beginning of their assembling until they ape finally dispersed, any member of the congregation, whether one, or two, or ten, or five hundred, or a thousand, if he is guilty óf such conduct as disturbs people who are assembled to worship, then this offense is made out.” While we can not approve the instruction as altogether suitable for a model, jet, when it is carefully analyzed, it shows no reversible error as applied to the facts of the present case. Judgment affirmed.


text:
    1297.
    Bass v. The State.
   Hill, C. J.

1. The right to make a statement in his behalf is a personal right granted to the defendant, and extends no further than to permit him personally to make to the court and jury just such statement as he deems proper in his defense. His counsel has no right to ask him questions While he is making his statement. The trial judge, however, in liis discretion, can permit the defendant’s counsel to make suggestions to the defendant relating to his statement, while he is making it or when he has concluded it. Walker v. State, 116 Ga. 540 (42 S. E. 787, 67 L. R. A. 426) ; Brown v. State, 58 Ga. 214; Echols v. State, 109 Ga. 508 (34 S. E. 1038).

Accusation of trespass, from city court of Sparta — Judge Little. June 15, 1908.

Submitted October 6,

Decided October 12, 1908.

R. H. Lewis, for plaintiff in error.

R. W. Moore, solicitor, contra.

2. The trial judge, in refusing to allow the defendant’s counsel to examine him or to call his attention to “one other matter,” did not err in saying, in the hearing of the jury, “I have allowed him to make a free and full statement.” The use of the word “full” was not an expression relating to the credibility or weight of the statement.

3. The evidence supports the verdict. . Judgment affirmed.


text:
    1299.
    Veasy v. The State.
    Accusation of carrying concealed weapon, from city court of Sparta — Judge Little. June 26, 1908.
    Submitted October 6,
    Decided October 12, 1908.

      William N. Maltbie, for plaintiff in error.

      R. W. Moore, solicitor, contra.
   Powell, J.

1. A demurrer to a plea of former jeopardy, filed in a prosecution for carrying a concealed pistol, is properly sustained when the plea sets up the former conviction of the defendant 'for carrying the pistol to a church, though it is alleged that both transactions were one and the same. As a matter of law, the two transactions were not the' same. In legal contemplation, a person who carries a concealed pistol to a church commits two offenses, and neither is inclusive of the other. Blair v. State, 81 Ga. 629 (7 S. E. 855) ; McIntosh v. State, 116 Ga. 543 (42 S. E. 793).

2. The evidence is sufficient to support the verdict. Judgment affirmed.


text:
    1301.
    Gamble v. The State.
   Hill, C. J.

1. The person who buys spirituous, alcoholic, or malt liquors is not in law an accomplice of the person who sells it to him. Besides, the law does not require, in misdemeanors, that the testimony of an accomplice shall be corroborated. Penal Code, §991, and citations.

2. The evidence is sufficient to support the verdict. Judgment affirmed.

Indictment for unlawful sale of liquor, from Crisp superior court — Judge Whipple. June 20, 1908.

Submitted October 6,

Decided October 12, 1908.

Crum & Jones, for plaintiff in error.

Walter F. George, solicitor-general, contra.


text:
    1308.
    THOMPSON v. THE STATE.
    The evidence affirmatively shows that there was no fraudulent intention on the part of the defendant when he obtained from the prosecutor the money on his labor contract; consequently, there was no violation of the act of the General Assembly of 1903 (Acts 1903, p. 90), and the verdict of guilty was contrary to law. Mwlloey v. Slate, 1 Ga. App. 521 (57 S. E. 1022).
    Accusation of cheating and swindling, from city court of Quit-man — Judge McCall. June 18, 1908.
    Submitted October 6,
    Decided October 12, 1908.

      J. D. Wade Jr., for plaintiff in error.
   Hill, C. J.

Thompson was convicted of a violation of the act of 1903 making criminal the obtaining of money or other thing of value upon a fraudulent promise to perform services. He made a motion for a new trial on the general grounds, and the judgment overruling the same is the error assigned. The evidence clearly shows the contract and the obtaining of the money by the accused. It is equally clear, from the State’s evidence, that the accused at the time he obtained the money from the prosecutor •on his promise to perform the service according to his contract did not have any criminal intention. A witness for the State, who employed the defendant subsequently to his contract with the prosecutor, testified that the defendant stated to him that he owed the prosecutor the amount of money which the prosecutor had advanced to him, and refused to accept employment until this money was repaid. The witness loaned him the money to repay the prosecutor, and the accused went to the home of the prosecutor for that purpose, but failing to find the prosecutor, returned to the witness, and, stating that fact, gave the money to the witness on his express promise to deliver it to the prosecutor. The witness did not perform his promise, but the defendant did not know that he had not done so, until his arrest. The subsequent conduct of the defendant as above stated, fairly and reasonably construed, refutes the existence of an intention to defraud when he obtained the money from the prosecutor on his contract to perform services; and for this reason the verdict against him was contrary to law, and a new trial should have been granted.

Judgment reversed.


text:
    1315.
    HOOD v. THE STATE.
    1. It is error to refuse to sanction a petition for certiorari, properly verified, when, according to the statement of the evidence contained in the petition, the finding sought to be reviewed is, for want of sufficient evidence, unwarranted.
    2. A petition for certiorari to correct errors' of the criminal court of Atlanta is properly verified by an affidavit in the form contained in §4638 of the Civil Code. In the absence of express legislation to that effect, the affidavit provided in §765 of the Penal Code has no reference to certioraries brought to review errors alleged to have been committed in the. criminal court of Atlanta; for the reason that such right of review is dependent upon general, and not special, provisions of law.
    Certiorari; from Fulton superior court — -Judge Pendleton. July 8, 1908.
    Submitted October 6,
    Decided October 12, 1908.

      Eugene Dickey, for plaintiff in error. C. D. Hill, solicitor-general, Lowry Arnold, solicitor, D. K. Johnston, contra.
   Russell, J.

The plaintiff in error was convicted in the criminal court of Atlanta, upon an accusation charging him with the offense of vagrancy. A petition for certiorari was presented by him to the judge of the superior court, who refused to sanction the same; and he excepts to this refusal.

As related in the petition for certiorari, the conviction was wholly unauthorized by the evidence submitted; and, under the .previous rulings of this court, when a petition for certiorari is presented to the judge of the superior court, the statements therein contained must be assumed to be true. If they be untrue, that fact is to be ascertained from the contents of the answer. The evidence in this case, as stated in the petition, shows merely that the defendant was passing through Hapeville, walking to ins home at Moleña; and, because one of the witnesses suspected, that he might be “planning some deviltry,” and two witnesses, who had never seen him before, swore that they did not know the-defendant had any property and they had never seen him at work,, the jury returned a verdict of guilty against the accused. No-witness swore that he did not work, or that he did not have any property; and, in fact, no witness was introduced who knew or claimed to know anything about the defendant, his habits, or' his financial condition.

The conviction being so manifestly unsupported by any evidence, we apprehend that the real reason why the learned judge-of the superior court declined to sanction the petition for certiorari lay in the fact that the defendant had not complied with, the requirements of §765 of the Penal Code, which declares that-the writ of certiorari shall not be granted unless the accused shall file his affidavit stating that he has not had a fair trial, and has-been wrongfully and illegally convicted. It appears from the; record that the petitioner for certiorari did not present the affidavit required by this code section; and the point is insisted, upon by the counsel for the State, in his brief. The plaintiff in error did attach to his petition for certiorari, however, the affidavit required in §4638 of the Civil Code; and we think that this was sufficient. The trial of which the defendant was complaining occurred in the criminal court of Atlanta. Section 765 of the-Penal Code is taken from the Acts of 1871-1872, p. 296, sec. 14, and it is strictly applicable only to certioraries brought for the,, correction of errors committed by judges of county courts. The act, creating the criminal court of Atlanta (Acts of 1890-1891, p. 935) creates a court sui generis. It is neither a county nor a. city court; and the subject of certiorari is not mentioned in the act. The right of certiorari, however, is a constitutional right, and a defendant' tried in the criminal court of Atlanta certainly could not be deprived of that right by reason merely of the fact-that the act constituting that court is silent upon the subject. If,, then, one convicted of crime in the criminal court of Atlanta desires to bring a certiorari to correct errors in that court, as his right depends upon the general law, he must proceed to pursue his remedy under the general law upon the subject of certiorari which prevailed prior to the passage of the act of 1871, and must file-.the affidavit provided in §4638 of the Civil Code, which was taken from the act of 1850, and which was applicable to all certioraries, whether civil or ‘criminal. The act of 1871 provided an exception in cases arising from the county courts; and, as the criminal court of Atlanta is not within that exception, and there is no special provision made therein for certioraries, the mode of procedure, in applying for the certioraries, must be controlled, not by the exception, but by the general law. Many of the acts creating city courts enact that the procedure applicable to certioraries from the county courts shall be applied to writs brought to correct errors in these judicatories; and, of course, petitions for certiorari from such courts must be verified by the affidavit prescribed in §765 of the Penal Code; but in the absence of an express enactment to this effect, petitions for certiorari, even in criminal cases, unless from the county courts, are to be verified in the terms of §4638 of the Civil Code. We are clear, therefore, that the affidavits filed by the plaintiff in error in this ease were sufficient to verify his petition for certiorari from the criminal court of Atlanta, and that to withhold sanction of the petition for certiorari upon that ground would be erroneous.

Judgment reversed.


text:
    1318.
    EDWARDS v. THE STATE.
    One who shoots with a pistol in the direction of another, situated within the range of the pistol, not intending to hit him, but intending to frighten him, is guilty of an assault.
    Indictment for assault, from Bartow superior court — Judge Pite. July 16, 1908.
    Submitted October 6,
    Decided October 12, 1908.

      G. H. Aubrey, T. J. Lyon, for plaintiff in error.

      Samuel P. Maddox, solicitor-general, contra.
   Powell, J.

This case has been to this court previously, and the facts are reported, with the former opinion, ante, 167 (60 S. E. 1033). The court in the trial now under review instructed the jury -as follows: “I further charge you that if you find the defendant, without justification, shot a pistol in the direction of the witness, within carrying distance of the pistol, not intending to hit him, but intending to scare Mm, he would be guilty of an assault.” In the former decision of the case Chief Judge Hill, speaking for the majority of the court, said: “We do not doubt that the firing of a pistol in the direction of another,. within a distance in which it might do execution, although with the intention of frightening only, might amount to an assault. And if one should recklessly fire a pistol in the direction of another, it might •constitute an assault; for the offense may consist in putting another in fear of violence.” The writer, specially concurring said: “I think that fright is such bodily harm that to shoot in the general direction of a person, with intent to 'bluff or scare’ him, is an assault.” It seems, therefore, that the instruction sub judice is directly in accord with the views of the entire court, as expressed in the former decision. . Judgment affirmed.


text:
    1320.
    Sanders v. The State.
    Accusation of misdemeanor, from city court of Tifton — Judge Eve. June 13, 1908.
    Submitted October 6,
    Decided October 12, 1908.

      Smith & Foy, for plaintiff in error.

      W. J. Wallace, solicitor, contra.
   Russell, J.

The decision in this ease is controlled by the ruling in Holsey v. State, ante, 453 (61 S. E. 836). The evidence did not authorize the verdict of guilty Judgment reversed.


text:
      1327.

    Johnson v. The State.
   Hill, C. J.

A rule nisi granted on a motion for a new trial set the hearing for a fixed date, and directed that the motion be served on the opposite party “five days prior to the hearing.” On the date fixed for the hearing, the trial judge granted an order postponing the hearing of the motion for a new trial to a later date, making no other order as to service. The motion for a new trial was not served five days before the date fixed for the hearing in the first order, but it was duly served five days prior to the date as fixed in the subsequent order of postponement. Eeld, that the judgment dismissing the motion for a new trial, because the opposite party was not served therewith as required by the original rule nisi, was erroneous. Judgment reversed.

Motion for new trial, from city court of Bainbridge — Judge Harrell. July 14, 1908.

Submitted October 6,

Decided October 12, 1908.

P. D. Rich, J. H. Gilpin, for plaintiff in error.


author: Per Curiam.

text:
    1332, 1333.
    Tooke v. City of Oglethorpe.
    Certiorari, from Macon superior court — Judge Littlejohn. May 15, 1908.
    Argued June 6,
    Decided June 12, 1908.

      Hixon & Greer, for plaintiffs in error.

      Jule Felton, solicitor, contra.
   Per Curiam.

These eases are controlled by the decision in the case of McDonald v. Town of Ludowici, 3 Ga. App. 654 (60 S. E. 337).

Judgment affirmed.


text:
    1359.
    Bryant v. The State.
    Accusation of larceny from house, from city court of Fort Haines — Judge Bambo. August 10, 1908.
    Submitted October 8,
    Decided October 12, 1908.

      Ben. M. Turnipseed, for plaintiff in error.

      P. C. King, solicitor, contra.
   Russell, J.

Evidence of the- possession of a • stolen pistol will not, without more, authorize a conviction of larceny, in the absence of any evidence that the defendant was in possession of the pistol shortly after the larceny, and where it appears that the property had passed from hand to hand before it was recovered. Especially is this true where others, who are shown to have been in possession of the stolen property prior to its discovery by the owner, had made false and contradictory statements in regard to the manner in which they procured possession. While the possession of stolen goods is a circumstance from which guilt may be inferred, the presumption is not conclusive, when that possession is not shown to have been recent. Cuthbert v. State, 3 Ga. App. 600 (60 S. E. 322). Judgment reversed.


text:
    1365.
    JACKSON v. THE STATE.
    This case is controlled by Gole v. State, 2 Ga. App. 734 (59 S. E. 24) j Walker v. State, 117 Ga. 323 (43 S. E. 737).
    Indictment for assault and battery, from Mclntosb' superior court — Judge Seabrook. July 18, 1908.
    Submitted October 8,
    Decided October 12, 1908.

      Kenan & Crawford, for plaintiff in error.

      N. J. Norman, solicitor-general, contra.
   Powell, J.

We do not care to recite the facts. The defendant sought to justify the battery, on one of those natural grounds which appeal to all honorable men, but which the law does not recognize as a defense. If we had pardoning power, instead of judicial authority only, we would incline to a different judgment; but in the light of the law as it is, the judgment is Affirmed.


text:
    1368.
    Marshall v. The State.
    Accusation of assault and battery, from city court of Dawson — Judge Edwards. July 21, 1908.
    Submitted October 8,
    Decided October 12, 1908.

      Marlin & Hoyl, for plaintiff in error.

      M. J. Yeomans, solicitor, contra.
   Russell, J.

No error of law is alleged to have been committed by the court on the trial. The evidence authorized the verdict, and the motion for new trial was properly overruled.

Judgment affirmed.