author: Bíoodworth:, J.

text:
    18118.
    LAWSON v. TRAVELERS INSURANCE COMPANY et al.

    A convict injured while serving a sentence in a county chain-gang is not an employee of the county and is not entitled to compensation under the workmen’s compensation act.
    Workmen’s Compensation Acts, C. J. p. 49, n. 52 New.
    Decided July 14, 1927.
    Appeal; from Muscogee superior court-—Judge McLaughlin. April 2, 1927.

      W. Paul Miller, for plaintiff.

      J. F. Terry, K. F. Bray, McDaniel & Neely, Ilarry L. Greene, for defendants. •
   Bíoodworth:, J.

While serving a twelve-months sentence on the chain-gang in Muscogee county as a misdemeanor convict, the plaintiff in error was accidentally injured by cutting his foot with an axe. He was confined to his bed as a result of the injury, and received hospital services and medical treatment at the expense of the county. After completing his sentence he filed a claim with the industrial commission of Georgia, in which he contended that he was partially, though permanently, disabled, and asked for damages. The case was heard by Hon. T. E. Whitaker, one of the members of the industrial commission. The following is a part of the agreed statement of facts: “It is further agreed that the county authorities of Muscogee county, Ga., having charge of its road-work, had no jurisdiction over the duration of the sentence of the applicant or his conduct as a prisoner; these matters being-under the jurisdiction of the superior court of said county, or of the judge thereof, and the prison commission of the State of Georgia, through its warden above referred to. It is further agreed that the applicant was engaged at the time of the injury in doing work upon the public roads of said county under the direction of the warden above referred to; that said injury occurred on June 5, 1926; that the applicant was totally disabled, and was-confined in the city hospital, Columbus, Georgia, for thirty-five days, and that his condition since said time has been - per cent, disabled. It is further agreed that there was no duty or liability on said county to pay any wages or compensation to said applicant for his labor performed as a convict on its said chain-gang, and that said county did not pay any wages or compensation to said applicant, and that said applicant did not receive any compensation for his labor.” The commissioner hearing the case in making his award said: “Brady Lawson, while serving his sentence in the Muscogee county chain-gang, was not an employee of Muscogee county, and therefore is not entitled to compensation under-the provisions of the act.” From this award denying compensation tire plaintiff appealed to the superior court of Muscogee county, and on a hearing of the appeal the judge passed the following order: “It is considered, ordered, and adjudged by the court that the decision of the industrial commission of Georgia, holding that the claimant, Brady Lawson, plaintiff herein, was not at the time of the injury complained of an employee of Muscogee county, Georgia, within the terms and provisions of the workmen’s compensation act of Georgia, be and the same is hereby sustained.” This judgment is right. Ga. L. 1920, p. 167,. sec. 2(b); Park’s Ann. Code, § 3154(b); Ga. Ry. & Power Co. v. Middlebrooks, 34 Ga. App. 156 (128 S. E. 777); New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682, 684 (118 S. E. 786); Goss v. Gordon County, 35 Ga. App. 325 (133 S. E. 68); U. S. Fidelity &c. Co. v. Watts, 35 Ga. App. 447 (133 S. E. 476).

Judgment affirmed.

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


source: Caselaw Access Project

author: Broyles, C. J.

license: Public Domain

text:
    18119.
    OZBURN v. ROYAL INSURANCE COMPANY LIMITED.
    The motion to poll tlie jury after their dispersal was properly denied, under the 'facts of this ease.
    Trial, 38 Cye. p. 1874, n. 64, 69.
    Decided July 14, 1927.
    Complaint on fire policy; from city court of Savannah—Judge Freeman. March 18, 1927.

      Lawrence & Abrahams, for plaintiff.

      Hariridge, Wright & Brennan, for defendant,
   Broyles, C. J.

Where it was agreed by counsel for both parties in a civil cause that the verdict when agreed upon should be put in an envelope and that the envelope should be opened by the clerk of the trial court or any other officer of the court, the verdict to be communicated to counsel in the case, and the jury to be allowed to disperse, and where all this was done, the trial of the case was ended, and the right of the losing party thereafter to demand a poll of the jury was gone, and the motion to poll the jury was properly denied by the judge on the ground that he had no discretion in the matter. Smith v. State, 59 Ga. 514, 515 (27 Am. R. 393); Vaughan v. State, 9 Ga. App. 613 (71 S. E. 945); City Bank of Macon v. Kent, 57 Ga. 285 (19). See also Thompson on Trials (2d ed. by Early), 228; 38 Cyc. 1874, paragraphs (B) and (11). While the first two cases just cited were criminal ones, they are controlling in the instant case. Assuredly the right to life or liberty is greater and more sacred than the right to property, and if the defendant in a criminal case, under certain circumstances, would lose his right to demand a. poll of the jury, then a fortiori a party to a civil cause, under similar circumstances, would like-, wise lose that right. The decisions in Smith v. Mitchell, 6 Ga. 458, Rutland v. Hathorn, 36 Ga. 380, Bell v. Hutchings, 86 Ga. 562 (12 S. E. 974), and Tennessee &c. Co. v. George, 11 Ga. App. 221 (75 S. E. 567), cited by counsel for the plaintiff in error, are not necessarily in conflict (obiter expressions excluded) with the present ruling.

Judgment affirmed.,

Luke ancl Bloodworth, JJ., concur.


author: Luke, J.

text:
    18120.
    PEEPLES v. LOUISVILLE & NASHVILLE RAILROAD CO.
    It appearing from the plaintiff’s petition that in going upon the railroads track at the crossing at which he was struck by the defendant’s train he failed to exercise ordinary care for his safety, and that by such care he could have avoided the consequences to himself of the defendant’s negligence, the judgment sustaining the general demurrer was correct.
    Railroads, 33 Cyc. p. 988, n. 19; p. 10(50, n. 25.
    Decided July 14, 1927.

      Action for damages; from Cobb superior court—Judge John S. Wood. March 28, 1927.

      Mosley & Gann, H. B. Moss, for plaintiff.

      Tye, Peeples & Tye, Morris, HawTcins & Wallace, for defendant.
   Luke, J.

Abe Peeples sued the Louisville & Nashville Railroad Company for damages for personal injuries alleged to have been caused by the defendant’s negligence in running its train against him on a public grade-crossing in Marietta, Ga. The controlling question in this case is whether or not the court correctly sustained the general demurrer and dismissed the petition.

Briefly stated, the petition set out the following case: In the city of Marietta the defendant’s line of railroad and that of the Western & Atlantic Railroad,, running parallel north and south, and within seven or eight feet of each other, cross Rose Lane street. This crossing is a much-traveled public grade-crossing, and the location of the McNeel Marble' Works, eight or ten feet east of the defendant’s railroad-track and about twelve or fifteen feet south of said crossing, prevents a person thereon from seeing the approach of a north-bound train, and makes the crossing dangerous to persons traveling thereon. When injured on June 25, 1926, the defendant was about eighty years old* but was “a man of exceptionally strong constitution.” Paragraph 7 of the petition reads as follows: “Petitioner avers that when he approached the said railroad-tracks to cross the same, the track of the Western & Atlantic Railroad was blocked by a passing train, and that before the train had cleared the crossing, and in order to get across the said railroad, he stepped upon the track of said defendant, and, without any warning from said defendant, and without the ringing of a bell, blowing a whistle, or giving any alarm whatever, said defendant’s train, traveling at from twenty to thirty miles per hour, and without any watchman at said crossing, and without any brakeman on the front end of the box-ear being pushed by the engine of defendant’s railroad, ran into and knocked him down as aforesaid, and injuring him as will be more fully hereinafter set out.” The train blocking the crossing was traveling at about forty miles per hour, and was making a great noise. The defendant’s train with the car in front of the engine, which struck the plaintiff, was going north. In addition to the acts of negligence indicated above, the petition alleged a violation of the State law “with reference to public crossings in a thickly populated community,” and a violation of the speed ordinance of the City of Marietta.

The demurrer alleges that the petition shows: (a) that the plaintiff’s injuries were the result of his own negligence; (&) that by the exercise of ordinary care the “plaintiff could have avoided being injured as alleged in the petition.”

Notwithstanding amendments were made to other parts of the petition, paragraph 7 was neither stricken nor changed by amendment. Construing the petition more strongly against the pleader, and having particularly in mind -said paragraph, it must be held, on demurrer, that the crossing was blocked by the Western & Atlantic train when the plaintiff approached it, and that he entered upon the crossing and stepped upon the defendant’s track before the train had cleared the crossing.

“That no person can recover damages from a railroad company for injuries to himself or his property, where the same are caused by his own negligence, or where by ordinary care he could have avoided the consequences to himself caused by the company’s negligence, are familiar declarations of our Civil Code.” . The foregoing quotation expresses the law as. laid down in sections 2781 and 4426, Code (1910), and is from Chief Justice Fish in So. Ry. Co. v. Hogan, 131 Ga. 159 (62 S. E. 65). “A railroad-track is a place of danger, and one who goes thereon is bound to know that he is going into a place where he is subject to the dangers incident to the operation of trains upon that track. See in this connection Comer v. Shaw, 98 Ga. 545 [25 S. E. 733]; Lloyd v. R. Co., 110 Ga. 167 [35 S. E. 170]. This is true without regard to the place where the track is, whether in the country, where pedestrians are not expected to be, or at a public road crossing, or at a street crossing, or at the stations and depots of railroad companies, where persons are expected and invited to be present. . . An ordinarily prudent person in the possession of all his faculties would not attempt to cross a railroad-track at any place without using at least his sense of sight, if not that of hearing, to determine whether at the time and place he was about to cross the same there were present any of those dangers which a person of ordinary intelligence would reasonably apprehend.” W. & A. R. Co. v. Ferguson, 113 Ga. 713 (39 S. E. 308, 54 L. R. A. 802). See also A. C. L. R. Co. v. Fulford, 159 Ga. 812 (127 S. E. 274); Harris v. So. Ry. Co., 129 Ga. 388 (2) (58 S. E. 873). “If, when the defendant’s negligence was discovered or when in the exercise of ordinary care it could have been discovered, the use by the decedent of his senses of sight and of hearing in an ordinarily diligent way could have prevented the. casualty from occurring, the plaintiff can not recover.” Moore v. S. A.-L. Ry. Co., 30 Ga. App. 466 (3) (118 S. E. 471). “(1) If a homicide occurs at a place upon the track of a railway company where it was the duty of the servants of the company to anticipate the presence of persons on the track, and their failure to so anticipate the presence of others thereon amounts to mere negligence, the negligence of the person killed, under such circumstances, amounting to the lack of ordinary care for his safety, and where the person killed could by the exercise of ordinary care have avoided the consequences to himself of such negligence of the servants of the company, will prevent a recovery by a plaintiff who sues for such homicide. (2) But if the servants of the company were guilty of wilful and wanton negligence, which resulted in the homicide of the person killed, then the negligence of the person killed, however gross, will not defeat a recovery of damages for such homicide by a plaintiff who is entitled under the law to sue therefor.” Lowe v. Payne, 156 Ga. 316 (118 S. E. 924).

Notwithstanding the allegation in the petition that the failure of' defendant to have a watchman at said crossing “amounted not only to negligence but was an act of reckless disregard of human life,” the facts alleged in the petition do not show “wilful or wanton negligence.” See So. Ry. Co. v. Davis, 132 Ga. 812 (65 S. E. 131). The case at bar falls within the first rule laid down in Lowe v. Payne, supra, and within the following general rule set out in Central of Ga. Ry. Co. v. Tapley, 145 Ga. 792 (5) (89 S. E. 841): “Where a person who is killed by the running of a railroad-train could by the exercise of ordinary care for his own safety have avoided the consequences to himself of the defendant’s negligence after it came into existence and was known to him or could have been discovered, by the exercise of ordinary care, an action for damages against the railroad company . . will not lie. Civil Code, §§ 2781, 4426.” “There being no allegation to the contrary, it must be assumed that the decedent was a person of' ordinary intelligence and that he was laboring under no physical defect or disability which rendered him incapable of appreciating his situation and of knowing the dangers incident thereto.” Moore v. S. A.-L. Ry Co., 30 Ga. App. 466 (2) (118 S. E. 471).

Plaintiff in error contends that this case should have been submitted to the jury, under the law as laid down in Richmond & Danville R. Co. v. Howard, 79 Ga. 44 (2) (3 S. E. 426). It is: “Failure of the injured party in the use of ordinary care, by untimely stepping upon a railroad track at a public crossing, is no complete bar to the recovery of damages, unless by the use of ordinary care the consequences due to the negligence of the other party could have been avoided. And whether they could or not is a question for the jury.” In the case cited the case had gone to the jury, and the evidence was “voluminous and conflicting.” The law there announced is applicable to that case, but it does not apply where there is a general demurrer to a petition. “When a motion for a nonsuit is made, or a demurrer to the declaration flled, it is the duty of the trial judge to pass upon it. If, however, the case is submitted to the jury without a motion to nonsuit, or a demurrer to the declaration, then the court must leave the question of negligence to the jury. . . And this is the distinction between the cases cited by counsel for the plaintiff in error, which hold that negligence is a question for the jury, and those cited by counsel for defendant in error, which hold that the judge can grant a nonsuit, or sustain a demurrer upon the facts alleged in the declaration.” Jarrett v. Atlanta & West Point R. Co., 83 Ga. 350 (9 S. E. 682). See also Hill v. L. & N. R. Co., 124 Ga. 243 (2) (52 S. E. 651, 3 L. R. A. (N. S.) 432); Moore v. S. A.-L. Ry. Co., supra.

The plaintiff in error urges that he was in an emergency, and that, under the law laid down in Bryant v. Georgia Ry. & Power Co., 162 Ga. 511 (134 S. E. 319), his case should have been submitted to the jury. Not so. See case cited in headnotc 3 of that decision, which differentiates cases where the emergency was brought about by the voluntary action of the party and where it was caused by an independent agency.

In the case at bar, the crossing was dangerous because of the proximity of the McNeel Marble Works, and, at the time the plaintiff entered upon it, was more dangerous because of the noise of the rapidly moving Western & Atlantic train, and because it was. blocked by that train. No urgent reason appears why the plain.tiff should have entered upon the crossing at the time he did. The tracks were only seven or eight feet apart, and the petition discloses no reason whatever why the plaintiff could hot, and should not, have waited in a place of safety, instead of going upon the defendant’s track. The tracks were parallel, and ran north and south at the crossing, and under no rule of construction can we say, on demurrer, that the plaintiff could not have seen the approaching train before he went upon the crossing, by using his sense of sight. Nor does it appear why he could not have seen it after he stepped upon the track, unless he suddenly stepped immediately in front of the train. Our conclusion is that the plaintiff failed to exercise ordinary care for his safety, and that by the exercise of such care he could have avoided the consequences to himself of the defendant’s negligence. The judgment sustaining the general demurrer was correct.

Judgment affirmed.

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


author: Bboyles, C. J.

text:
    18121.
    Georgia Baptist Hospital v. Smith.
    Charities, 11 C. J. p. 377, n. 14, 15.
   Bboyles, C. J.

1. Ordinarily an incorporated hospital, primarily maintained as a charitable institution, is not liable for the negligence of its officers and employees, unless it fails to exercise ordinary care in the selection of competent officers and employees, or fails to exercise ordinary care in retaining such officers and employees. Plant System v. Dickerson, 118 Ga. 647 (45 S. E. 483); Morton v. Savannah Hospital, 148 Ga. 438 (4) (96 S. E. 887); Butler v. Berry School, 27 Ga. App. 560 (109 S. E. 544).

2. In the instant case the plaintiff (a woman pay patient), while undergoing a major operation in the defendant hospital, and while. lying unconscious and helpless, was severely burned and permanently injured (the sight in one eye being practically destroyed) through the gross negligence of one of the defendant’s anesthetists, who while administering ether to the plaintiff allowed it to come in contact with the plaintiff’s face and eyes, thereby destroying her eyesight as stated, and severely burning her face, and causing her intense pain and suffering for -many months. Under the ruling in the first paragraph and the facts of this case the defendant hospital was not liable for the negligence of its anesthetist, unless it had failed to exercise ordinary care in her selection. However, this court can not hold that there was no evidence authorizing the jury to find, firstly, that the anesthetist was incompetent, and, secondly, that the defendant hospital had failed to exercise ordinary care in her selection. It is true that the petition failed to allege that the anaesthetist was generally incompetent, or that the defendant did not exercise ordinary care in her selection; but no demurrer to the petition was interposed, and those issues were raised by the evidence adduced and were charged upon by the court.

Decided July 14, 1927.

Rehearing denied July 26, 1927.

Damages; from Fulton superior court—Judge Humphries. March 26, 1927.

Application'for certiorari was denied by the Supreme Court.

Little, Powell, Smith & Goldstein, Kendrick L. Scott, for plaintiff in error.

Clarke & Clarke, contra.

3. The verdict in favor of the plaintiff (for $8000) was authorized, and none of the special grounds of the motion for a new trial require a reversal of the .judgment below.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    18122.
    Childers v. The State.
    Criminal Law, 16 C. J. p. 1218, n. 53 New; p. 1230, n. 66; 17 C.-J. p. 91, n. 79.
    Decided July 14, 1927.
    Seduction; from Crawford superior court—Judge Mathews. March 2, 1927.

      K. P. Lowe, Homer Beeland, for plaintiff in error.

      Charles H. Garrett, solicitor-general, contra.
   Broyles, C. J.

1. It is well settled by repeated rulings of the Supreme Court and of this court that a ground of a motion for a new trial must be complete and understandable within itself. Under this ruling grounds 4, 5, 6, 8, 9, and 10 of the motion for a new trial are too defective to be considered by this court.

(a) Grounds 8, 9, and 10 complain of certain language used by the solicitor-general in his concluding argument to the jury, and state that counsel for the defendant moved the court to declare a mistrial on account of such language, but it is not stated therein what ruling was made by the court thereon, or whether or not the court rebuked the solicitor-general and instructed the jury not to consider the alleged improper remarks.

2. One ground of the motion for a new trial was based upon alleged newly discovered evidence. However, the affidavit in support of the witness upon whose newly discovered evidence a new trial was sought failed to give the.names of his associates. In view of that defect the trial ' judge did not abuse his discretion by refusing to grant a new trial on this ground. Ivey v. State, 154 Ga. 63 (6) (113 S. E. 175).

3. The verdict was authorized by the evidence.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    18123.
    WILLIAMS v. THE STATE.
    A conviction of simple larceny was authorized by the evidence.
    Exclusion of the prosecutor’s tax-returns, which were offered in evidence for -the purpose of showing that he did not return for taxation the property alleged to have been stolen, was not error.
    Criminal Law, 17 C. J. p. 333, n. 95.
    Decided July 14, 1927.
    Larceny of sheep; from Coffee, superior court—Judge Eeed. March 30, 1927.

      Chastain & Henson, for plaintiff in error.

      A. B. Spence, solicitor-general, contra.
   Luke, J.

Williams was indicted and convicted of the offense of simple larceny. The second ground of the amendment to the motion for a new trial, which complains of the court’s refusal to allow in evidence the prosecutor’s tax-returns for several years back, and including the year in which the property was alleged to have been stolen, shows no error. The purpose of the introduction of such tax-returns was to show that the prosecutor failed to return for taxation the identical property which the defendant is alleged to have stolen. The prosecutor, in his evidence, admitted that he did not know whether or not he returned said property for taxation in any of said years, and further testified that some years he never made any returns at all. There was ample evidence to establish the ownership of the property alleged to have been stolen. The defendant had a legal trial, and after the court had approved the verdict of the jury the motion for a new trial was properly overruled.

Judgment affirmed.

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


author: Bloodworti-i, J.

text:
    18124.
    ALLEN v. THE STATE.
    There being some evidence in support of the verdict, and the motion for a new trial being based only on the usual general .grounds, the judgment overruling the motion must be affirmed.
    Criminal Law, 16 C. J. p. 922, n. 3; p. 929, n. 86; p. 930, n. 93; 17 C. J. p. 271, n. 41.
    Decided July 14, 1927.
    Arson; from Wilcox superior court—Judge Crum. April 23, 1927.

      Hal Lawson, for plaintiff in error.

      T. Hoyt Davis, solicitor-general, contra.
   Bloodworti-i, J.

The motion for a new trial contains the general grounds only. “The decision of every issue of fact is exclusively for the jury.” Davis v. Kirkland, 1 Ga. App. 5 (1) (58 S. E. 209). “No principle of law is founded upon better reason or has been more strictly adhered to by this court than that the jury are the proper judges of the weight and sufficiency of-testimony and of the credibility of witnesses, and this court will not disturb the verdict of a jury where there is evidence to support its findings. Stricklin v. Crawley, 1 Ga. App. 139 (58 S. E. 215); Charles v. Brooker, 1 Ga. App. 219 (58 S. E. 218); Daughtry v. S. & S. Ry. Co., 1 Ga. App. 393 (58 S. E. 230).” Unity Cotton Mills v. Hasty, 19 Ga. App. 590 (2) (91 S. E. 916). There is some evidence to support the verdict, and “whenever there is any evidence,however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Bradham v. State, 21 Ga. App. 510 (94 S. E. 618).

Judgment affirmed.

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


text:
    18125.
    ANDREWS et al. v. THE STATE.
    A conviction of assault with intent to murder was unauthorized. The specific intent to kill, which must be shown in order to convict of that offense, was not established by evidence that one of the defendants, when they were riding in an automobile followed by the automobile of an officer, operated a smoke-screen device and caused it to emit on and around the officer a dense smoke containing poisonous gas, and thus caused him to run his ear into the bank of the road and to suffer a severe headache from inhaling the gas. There was no evidence as to how much gas was emitted, and no evidence that the defendants knew that deadly gas would be emitted with the smoke. The only evidence that might tend to show intent to kill was wholly circumstantial and was not sufficient to exclude the reasonable hypothesis that the smokescreen device was operated solely for the purpose of escaping from the officer and without intent to kill.
    Homicide, 30 C. J. p. 319, n. 97.
    Decided July 14, 1927.
    Assault with intent to murder; from DeKalb superior court-judge Hutcheson. March 26, 1927'.

      Pml L. Lindsay, for plaintiffs in error.
   Broyles, C. J.

The indictment charged that the two defendants were operating an automobile on a public highway; that the automobile was equipped with a smoke-screen and poison-gas device which, at the will of the operator of the car, could be made to emit from the exhaust pipe at the rear of the car a dense smoke containing carbon monoxide—ra deadly and poisonous gas likely to produce death; that when L. S. Henderson, driving another automobile, approached the rear of the defendants’ car, they, with the intent to kill and murder him by poisoning him with the carbon monoxide gas, caused the poisonous gas to be emitted from their automobile onto and into said Henderson. A second count of the indictment charged that the ■ defendants attempted to kill and murder Henderson by blinding him with the smoke emitted from their car and thus causing him to be unable to see the road or to keep his car in the road, thereby causing the wreck of his car and his death.

Upon the trial the evidence showed that the automobile of the defendants was equipped with a smoke-screen device as charged in the indictment; that they were operating the car on a public highway, and that when Henderson, driving another car, approached them from their rear, one of the defendants began to operate the smoke-screen device and caused it to emit a dense smoke on and. around Henderson, which caused him several times to run his car into the bank of the road, and the inhaling of the smoke by him produced a severe headache which lasted a day and a night. Two professors of chemistry from Emory University testified that they had examined the smoke-screen device on the defendants’ car and the oil mixture therein, and that, in their opinion, the device when operated would emit into the air a dense smoke and an invisible, odorless, and highly poisonous gas—carbon monoxide— which would cause death to any one inhaling a sufficient quantity for a sufficient length of time. However, there was no evidence as to how much of this gas was emitted by the smoke-screen device, and no evidence showing that the defendants, or either of them, knew that this deadly gas would be emitted along with the smoke from their smoke-screen device; and the specific intent to kill is a necessary ingredient of the offense of an assault with intent to murder. In our opinion there was no evidence authorizing a finding that the defendants pnt out their smoke-screen with the intent to kill Henderson (who, the evidence showed, was a county policeman and who was pursuing them in the belief that they were transporting a load of whisky), either by poisoning him with carbon monoxide gas, or by blinding him with smoke and thereby causing the wreck of his car and his death.

The only evidence tending in the slightest degree to show an intent to kill on the part of the defendants was wholly circumstantial, and was not sufficient to exclude the reasonable hypothesis that they operated their smoke-screen device solely for the purpose of escaping from the officer and without any intent to kill him.

It follows that the defendants’ conviction of an assault with intent to murder was unauthorized.

Judgment reversed.

Lulce and Bloodworth, JJ., concur.


text:
    18126.
    Staples v. The State.
    Criminal Law, 17 C. J. p. 58, n. 17; p. 69, n. 38.
    Decided July 14, 1927.
    Operating automobile while intoxicated; from Dooly superior court—Judge Crum. March 26, 1927.

      J. M. Busbee, for plaintiff in error.

      T. Hoyt Davis, solicitor-general, contra.
   Luke, J.

1. The evidence sustains the conviction of the offense of operating an automobile on a public highway while under the influence of intoxicating liquor.

2. In view of the note of the trial judge, the assignment of error in ground 4 of the motion for new trial is without merit.

3. An objection to the admission of evidence, that it is “irrelevant, immaterial, inadmissible, and prejudicial,” is too general to be considered by this court. See Manning v. State, 33 Ga. App. 610 (9) (127 S. E. 475); Hayes v. State, 36 Ga. App. 669 (137 S. E. 860), and cit. Grounds 5, 6, and 7 of the motion for new trial are controlled by this ruling.

4. Viewing the charge of the court as a whole, no reversible error is shown in any of the criticisms of it in the remaining assignments of error.

Judgment affirmed.

Broyles, O. J., and Blood%oortli, J., concur.


text:
    18130.
    Windom v. Colquitt County.
    Bridges, 9 O. J. p. 487, n. 90; p. 488, n. 94.
    Decided July 14, 1927.
    Action for damages; from Colquitt superior court—Judge W. E. Tilomas. April 5, 1927.
    The plaintiff’s petition as amended alleged, in substance, that when he was driving his automobile on a designated public highway of the defendant county on January 17, 1926, “he crashed into a pile of lumber negligently placed on said road at the approach to a bridge about two and one half miles northwest of Eunston in said county,” and the impact wrecked the front end of the car and caused other damage described; that the defendant had negligently torn out the bridge and negligently failed to maintain any warning signs or lights for the guidance of traffic; that the defendant had negligently failed to keep the bridge and the approach thereto in reasonable repair so that persons who traveled thereon could use it with convenience and safety; that the pile of lumber, which completely blocked the passage of the bridge, was placed immediately next to the bridge opening across the stream, upon a fill made by the defendant approximately five feet high, which fill was a necessary part of the bridge itself, and the lumber was placed on that part of the public road which constitutes the abutment and approach to the bridge and which is essential to the existence and use of the bridge; that the bridge constituted a necessary part of the public highway and was erected by the defendant since December 19, 1888; that the' plaintiff had no knowledge of the dangerous condition of the road, and that the defendant knew of the defect complained of at the time of said accident and long prior thereto,, and the said defective and dangerous condition had existed for such a length of time as in law to charge the defendant with knowledge thereof; and that the plaintiff was damaged in a stated sum.
   Broyles, C. J.

This was a suit against a county for damage to an automobile, alleged to have been caused by the negligence of the county in maintaining a defective bridge on a public highway. The facts of the case, as stated in the petition, failed to show any actionable negligence on the part of the county. Furthermore, the petition, properly construed (most strongly against the plaintiff), clearly showed that the plaintiff, by the exercise of ordinary care, could have avoided the injuries sued for. The court properly dismissed the petition, on general demurrer. Judgment affirmed.-

Luke and Bloodworth, JJ., concur.

P. Q. Bryan, for plaintiff,

cited: 126 Ga. 699; 15 Ga. App. 687.

J. 0. Gibson, for defendant,

cited: Civil Code (1910), §§ 384, 748, 4426; 116 Ga. 371; 106 Ga. 743, 747; 24 Ga. App. 717-18; 52 Ga. 538; 118 Ga. 200 (2); 61 Me. 292; 29 Ga. App. 624; 134 Ga. 69; 8 Ga. App. 229 (5); 74 Ga. 107.


text:
    18131.
    Scott-Strother Lumber Co. v. Danner et al.

    Logs and Logging, 38 C. J. p. 182, n. 29, 36.
    Decided July 14, 1927.
    Complaint; from Wilkes superior court—Judge Perryman. March 8, 1927.

      B. W. Fortson, for plaintiff in error. G. F. Sulion, contra.
   Luke, J.

1. Where a deed conveys “all the pine timber of sawable kind standing on that tract or parcel of land known as a part of the Old Danner place, and bounded as follows: on the north by lands of B. E. Danner Jr., east by lands of B. E. Danner Sr., south same lands, and west by lands of B. G-. Sayer, and containing thirty-eight acres or aboirfc 175,000 feet, more or less, in said tract,” and in the conveyance it is provided that $300 shall be payable at one time' and $575 at a subsequent time, and the sellers sue upon the contract, a defense seeking to apportion an alleged deficiency in the number of feet of timber conveyed must show actual fraud on the part of the grantor. See King Lumber Go. v. Cowart, 136 Ga. 739 (72 S. E. 37), and cit.

(a) In the present case it was admitted, and the court charged the jury, that the sale of the timber was in bulk.

(b) The evidence was in conflict, but the jury were authorized to find that there was no intentional fraud on the part of the vendor.

(c) It was a question for the jury whether there was such gross deficiency in the number of feet estimated to be on the tract of land as to justify the suspicion of wilful deception, or mistake amounting to fraud.

2. The charge of the court was fair, and was not subject to the criticisms urged in the special grounds of the motion for a new trial. There being evidence to authorize the verdict rendered, and the court having approved the verdict, the motion for a new trial was properly overruled.

Judgment affirmed.

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


author: Beoyles, O. J.

text:
    18133.
    Louisville & Nashville Railroad Co. v. Lusk.
    Evidence, 23 O. J. p. 50, n. 61; p. 51, n. 72 New.
   Beoyles, O. J.

1. “The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against Mm, when it is self-contradictory, vague, or equivocal. And unless there be other evidence tending to establish his right to recover, he is not entitled to a finding in his favor, if that version of his testimony the most unfavorable to him shows that the verdict should be against him.” Long Cigar Grocery Co. v. Harvey, 33 Ga. App. 236 (2), 237 (125 S. E. 870), and cit.

Decided July 14, 1927.

Damages; from Bartow superior court—Judge Tarver. February 14, 1927.

Tye, Peeples & Tye, Neel & Neel, for plaintiff in error.

J. B. Whitaker, contra.

2. Under the above-stated ruling and the facts of the instant case, the plaintiff was not entitled to recover, and the verdict in his favor was contrary to law and the evidence.

Judgment reversed.

Luke and Bloodioorth, JJ., concur.


text:
    18134.
    Upchurch v. White.
    Covenants, 15 C. J. p. 1304, n. 2.
    Decided July 14, 1927.
    Complaint; from Campbell superior court—Judge Hutcheson. April 12, 1927.

      Frank G. Grizzard, PL. F. Sharp, for plaintiff.

      Lawrence S. Camp, for defendant.
   Luke, J.

Where title to a ti’act of land is conveyed by warranty deed, and possession of the land is delivered to the grantee, and several years thereafter an unsuccessful attempt is made to evict the grantee from the premises, a suit by the grantee will not lie against the grantor to-recover attorney’s fees, surveyor’s fees, etc. A petition which made only such a case was subject to general demurrer. See Joyner v. Smith, 132 Ga. 779 (65 S. E. 68); Gragg v. Richardson, 25 Ga. 566 (71 Am. D. 190); Smith v. Williams, 117 Ga. 783 (45 S. E. 394, 97 Am. St. R. 220); Taylor v. Allen, 131 Ga. 416 (4).

Judgment affirmed.

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


text:
    18136.
    CARSON v. THE STATE.
    Uncorroborated testimony of an accomplice may be sufficient to convict of a misdemeanor.
    Criminal Law, 16 C. J. p. 700, n. 11.
    Decided July 14, 1927.
    Possessing intoxicating liquor; from Cobb superior court—Judge John S. Wood. April 11, 1927.

      H. B. Moss, L. M. Blair, for plaintiff in error.

      George D. Anderson, solicitor-general, contra.
   Broyles, C. J.

The defendant was convicted of a misdemeanor. The only ground of the amendment to the motion for a new trial which was approved by the court set up that the only evidence connecting the accused with the offense charged was the testimony of two confessed accomplices and that their testimony was not corroborated. The rule that the testimony of an accomplice must be corroborated applies to felonies only. Penal Code (1910), § 1017.

The verdict was amply authorized by the evidence.

Judgment affirmed.

Luke and Bloodworih, JJ., concur.


author: Bloodwobti-i, J.

text:
    18137.
    Barnwell v. Tutwiler.
    Courts, 15 C. J. p. 987, n. 61.
    Decided July 14, 1927.
    Certiorari; from Fulton superior court—Judge Moore. March 30, 1927.

      McDaniel é Neely, Thomas M. Stubbs, for plaintiff in error.

      McElreath & Scott, contra.
   Bloodwobti-i, J.

There was sufficient evidence to authorize the judgment for $250 for the plaintiff, rendered by the judge of the municipal court of Atlanta; the petition for certiorari shows no legal reason why there should be another trial of the case, and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

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


text:
    18139.
    Williams et al. v. Lankford.
    Certiorari, 11 C. J. p. 158, n. 85.
    Decided July 14, 1927.
    Rehearing denied July 27, 1927.
    Certiorari; from Fulton superior court—Judge Humphries. April 12, 1927.

      Morris Macks, E. L. Fowler, for plaintiffs in error.

      Savage & Grawford, contra.
   Broyles, C. J.

Under all the facts of the case as disclosed by the record, it does not appear that the court erred in overruling the certiorari.

Judgment affio'med.

Luke and Bloodworth, JJ., eoneur.


author: Luke, J. Broyles, C. J.,

text:
    18140.
    GUEST v. ATLANTIC COAST LINE RAILROAD CO.
    Section 4381 of tlie Civil Code (1910), granting the right to renew a suit which has been discontinued or dismissed, is a remedial statute and is to be liberally construed; and “while the second suit must be substantially the same cause of action, it does not have to be a literal copy of that dismissed.” Go® v. Strickland, 120 Ga. 104 (5) (47 S. E. 912, 1 Ann. Cas. 870).
    . (a) Within the purview of the statute, the case under consideration is substantially the same as the one dismissed, and the court erred in sustaining the general demurrer and dismissing the petition. The sustaining of the special demurrers was likewise error.
    Limitations of Actions, 37 C. J. p. 1084, n. 53; p. 1086, n. 95.
    Decided July 14, 1927.
    Rehearing denied July 27, 1927.
    Action for damages; from Pierce superior court—Judge Reed. April 11, 1937.
    Application for certiorari was denied by the Supreme Court.

      James B. Thomas & Son, for plaintiff.

      Wilson, Bennett & Pedriclc, Memory & Memory, for defendant.
   Luke, J.

On October 16, 1934, I-Iiram E. Guest filed suit for damages for personal injuries, against the Atlantic Coast Line Railroad Company. On April 13, 1936, he withdrew the suit, and on May 33, 1936, he brought the present action. General and special demurrers were filed to the petition, and it was amended to meet them. The demurrers were renewed to the petition as amended, and other demurrers were filed. The exception in this case is to the sustaining of these demurrers.

The gist of the amended petition follows: The plaintiff accompanied an old and feeble lady to the defendant’s station at Black-shear, Ga., and purchased a ticket for her to Screven, Ga. He took her suit-case, accompanied her to the train, and handed the suit-case to the conductor. The conductor refused to accept it, and the plaintiff himself boarded the train and carried the suit-case to the lady. He then immediately walked to, and upon, the platform at the front of the coach, and grabbed hold of the guardrails with both hands, the train in the meantime having begun to move. “The porter of the train, . . seeing and observing that he was on the steps of the car,' then and there failed to exercise ordinary care of petitioner, jumped on the steps- against petitioner, wherein and whereby he was pushed, shoved, and his hand torn loose from the guard-rail of said steps.” After his hold had been broken loose from the guard-rail, a sudden jerk of the train caused him to lose his balance, and, as he was swinging on with only one hand to keep him from falling, said porter “kicked petitioner, thereby breaking loose his hand hold, and causing him to fall” upon the ground. The railroad-track was level, and the sudden jerk of the train was unnecessary, and “as a result of the sudden jerk forward, and the hand hold of petitioner being negligently broken and torn loose from the guard-rail,” the petitioner became unbalanced, and turned loose one of the guard-rails, “and while he was clinging and hanging on with the other, the sudden jerking of the train, and the acts of the porter in kicking petitioner at about the same time, was the proximate cause .of petitioner’s falling to the ground.”

The general demurrer relied on by the defendant in error is, that the petition as amended shows that the right of action of the plaintiff had accrued more than two years next before the commencement of said suit, and that the right of action is barred by the statute of limitations. The first contention of the defendant in error is that the demurrer was properly sustained because the first suit set forth no cause of action, and was a nullity, leaving no suit to renew. His second contention is that the second suit was not substantially the same as the first, and that for that reason there was no renewal within the meaning of the statute.

In his first petition the plaintiff alleged, that he was assisting the old lady to board the train; that so soon as he had seated her he immediately undertook to get off the train; that when 'he reached the platform of the car and was seeking to get off, the porter, or flagman, jumped on the steps in front of him; that while he was trying to get by the porter and off the steps of said car, and just as he got the lower step, the engine and train gave a violent and unusual jerk forward, which threw petitioner off the steps of the car, “whereby he received” designated injuries; that when petitioner entered said train for the purpose of assisting defendant’s passenger thereon with her baggage, defendant’s employees knew that he was on the train, that he was assisting their passenger, and knew that he was attempting to get off the train when it made said sudden jerk, and threw him to the ground and injured him.

That the first petition was defective there is no doubt; but that it might have been perfected by amendment we are quite sure. See Ellison v. Georgia, Railroad Co., 87 Ga. 691 (13 S. E. 809). The second petition might have set out the alleged proximate cause of the plaintiff’s injuries with much more certainty. It does not clearly appear from it whether the sudden and unusual jerk of the train, or the acts of the porter, caused the plaintiff to fall. As a matter of fact it appears to have been both. However, constru-' ing the petition more strongly against the pleader, and looking to the facts alleged rather than to the conclusions, reached, we are of the opinion that, from a legal viewpoint, the conduct of the porter is the proximate cause of the alleged injuries. In any event, however, the petitions evidently relate to the same parties, the same fall, and the same injuries; the same right is violated; the same wrong is perpetrated; the same result follows. -Section 4381 of the Civil Code'(1910) reads: “If a plaintiff shall be nonsuited, or shall discontinue or dismiss his case, and shall recommence within six months, such renewed case shall stand upon the same footing, as to limitation, with the original case; but this privilege of dismissal and renewal shall be exercised only once under this clause.” Hnder this law we do not think that the question as to whether or not the first petition was subject to general demurrer, or the question whether or not the acts of negligence proximately causing the injuries differ in the two petitions, is determinative of the issue presented here. “The act is remedial and is to be liberally construed.” Cox v. Berry, 13 Ga. 306. This construction of section 4381, supra, is elucidated and so ably and clearly elaborated in Cox v. Strickland, 120 Ga. 104 (4) (supra), that little has been added to, or can be added to, what has been said there. See also Lamb v. Howard, 150 Ga. 12 (102 S. E. 436); Colley v. Gate City Coffin Co., 92 Ga. 664 (18 S. E. 817); City of Tallapoosa v. Brock, 28 Ga. App. 384 (2) (111 S. E. 88). In the light of these decisions, we are constrained to hold that the sustaining of the general demurrer in this ease_ is reversible error.

There is no merit in the criticism of so much of paragraphs 3 and 5 of the petition as allege that the porter, or other train-hand, jumped on the steps, negligently breaking loose the hold of petitioner’s hand from the guard-rail and side-bars, 'because the same were conclusions of the pleader, and it is not alleged wherein or how the porter was negligent. The demurrer which insists that a certain portion of the amendment to the petition should be stricken because it failed to allege what the porter should have done in the exercise of ordinary care, and what would have constituted ordinary care, is without merit. It matters not whether the proximate cause of the plaintiff’s injuries was the sudden jerking of the train, it was permissible under the pleadings to show that the track was level and that the sudden movement of the train was unnecessary, and the 4th and last ground of the second demurrer was without merit. The court erred in sustaining the demurrers to the petition.

Judgment reversed.

Bloodworih, J., concurs. Broyles, G. J., dissents.

Broyles, C. J.,

dissenting. In my opinion the second suit was not substantially the same cause of action as the first suit, and the court did not err in dismissing the second suit on general demurrer.


text:
    18142.
    Thompson-Cauthorn Motor Co. v. Ross.
    Agency, 2 O. J. p. 584, n. 12; p. 585, n. 14.
    Decided July 14, 1927.
    Certiorari; from Fulton superior court—Judge Moore. April 12, 1927.

      B. B. Lambert, for plaintiff in error.

      Duke G. Meredith, G. E. Presley, contra.
   Broyles, C. J.

1. “One who deals with a special agent is chargeable with notice of the extent of the latter’s authority; and if such agent makes a settlement not within the scope of his agency, the settlement is not binding upon the principal.” Baldwin Fertilizer Co. v. Thompson, 106 Ga. 480 (32 S. E. 591).

2. “A principal is not bound or affected by the unauthorized acts of a special agent with limited powers, unless he ratifies the same.” Phoenix Insurance Co. v. Gray, 107 Ga. 110 (4) (32 S. E. 948).

3. In the instant ease the transactions of the special agent of the defendant corporation with the plaintiff (the transactions occurring after the plaintiff’s written application to the defendant to purchase an automobile had been rejected by the defendant, and the “earnest money” deposited by the plaintiff had been returned to him by the defendant) were without the scope of his agency and were not ratified by his principal.

4. It follows that the verdict in favor of the plaintiff was contrary to law, and that the court erred in overruling the certiorari.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    18143.
    HOLBROOK v. THE STATE.
    The conviction of an attempt to commit robbery was not without evidence to support it.
    Robbery, 34 Cyc. p. 1808, n. 78.
    Decided July 14, 1927.
    Assault with intent to rob; from DeKalb superior court—Judge Hutcheson.- April 9, 1927.

      II. A. Allen, Jesse B. Simmons, for plaintiff in error.

      Claude C. Smith,, solicitor-general, contra. <

   Luke, J.

Holbrook was charged with an attempt to rob', in that “he did make an assault upon S. M. Gamble, with intent then and there, wrongfully, fraudulently, and violently, by force and intimidation, to rob him the said S. M. Gamble by pointing a pistol at said Gamble, and at same time saying to him, ‘Up ■ with them.’ ” The person alleged to have been assaulted testified positively to the identity of the defendant, and testified that the defendant “threw his gun on” him and said to him, “God damn you, up with them, up with them.” The prosecutor fled. The defendant stated that he was not the person who pointed the gun at the prosecutor, and that he was not guilty of the offense charged. The jury returned a verdict of guilty. This court can not hold that the verdict was without evidence to support it.

The four assignments of error upon excerpts from the charge of the court do not show reversible error. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    18144.
    CARDIN et al. v. THE STATE.
    The ground of the motion for a new trial as to failure to charge the jury on the law on the subject of alibi is incomplete, in not setting out evidence requiring such a charge.
    The sentence imposed, being within the statutory limit as to punishment, is not subject to review on the ground that it is excessive.
    There is evidence to support the verdict, and there is no merit in the motion for a new trial.
    Criminal Law, 17 O. J. p. 87, n. 44; p. 91, n. 77 New; p. 254, n. 35.
    Decided July 14, 1927.
    Rehearing denied July 27, 1927.

      Killing and maiming bogs; from Colquitt superior court—Judge W. E. Thomas. April 15, 1927.
    P. Q. Bryan, for plaintiff in error.

      O. E. Hay, solicitor-general, contra.
   Bloodworti-i, J.

1. A ground of a motion for a new trial alleges that the court erred “in failing to charge that the defendants sought to establish an alibi and upon the law as to alibi.” In Beavers v. State, 33 Ga. App. 370 (2) (126 S. E. 305), this court held:' “Where a ground of a motion for a new trial complains of the failure of the judge to charge certain principles of law (which the ground alleges should have been charged under the evidence adduced upon the trial), but where no evidence whatsoever is set forth in the ground, the ground is not complete and understandable within itself, and this court will not search through the brief of the evidence to discover whether there was any evidence requiring such instructions.” This ruling disposes of the alleged error of omission in the charge adversely to the contention of the plaintiff in error.

2. There is no merit in the ground of the motion for a new trial that the sentence imposed on each of the defendants is excessive. “The sentence imposed, being within the limits prescribed by law, is not subject to review.” Owens v. State, 32 Ga. App. 418 (4) (123 S. E. 919).

3. There is no merit in either of the other special grounds of the motion.

4. There is evidence to support the verdict.

Judgment affirmed.

Broyles, G. J., and Lulce, ~J., concur.


author: Broyles, O. J.

text:
    18145.
    Lewis v. The State.
    Criminal Law, 17 C. J. p. 252, n. 16; p. 271, n. 41.
    Decided July 14, 1927.
    Possessing liquor; from city court of Sylvania—Judge Evans. April 28, 1927. ■ ... ■ ■ ■
   Broyles, O. J.

Tlie motion for a new trial contained the usual general grounds only; the verdict was authorized by the evidence, and, the finding of the jury having been approved by the trial judge, this court is without authority to interfere.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

H. A. Boykin, B. P. Searson, for plaintiff in error.

J. S. Sowa/rd, solicitor, contra.


text:
    18148.
    Cutts v. Ford.
    Certiorari, 11 C. J. p. 199, n. 26.
    Decided July 14, 1927.
    Rehearing denied July 26, 1927.
    Certiorari; from Bibb superior court—Judge Malcolm D. Jones. April 18, 1927.
    Application for certiorari was denied by the Supreme Court.

      B. D. Feagin, for plaintiff in error. J ohn J. M cOreary, contra.
   Broyles, C. J.

Under the facts of the case as disclosed by the record, the overruling of the certiorari was not error for any reason assigned.

Judgment affirmed.

LuJce and Bloodworlh, JJ., coneur.


text:
    18149, 18178.
    TAYLOR v. SWIFT & COMPANY et al.

    Where an alleged partnership 'is sued on an open account, and in the answer each of the alleged partners denies the allegations of indebtedness and pleads no partnership, the burden is upon the plaintiff to prove both a partnership and a partnership debt; and where no partnership debt is proved, a verdict against the partnership is without evidence to support it.
    Partnership, 30 Cye. p. 403, n. 51; p. 535, n. 48; p. 587, n. 93; p. 591, n. 21.
    Decided July 14, 1927.
    Complaint; from city court of Thomasville—Judge MacIntyre. April 16, 1927.

      O. E, Say, Eldon L. Joiner, James B. Burch, for plaintiffs in error.

      Titus & Dekle, contra.
   Luke, J.

Swift & Company sued “W. J. Taylor & E. S. Taylor, a partnership,” on a fertilizer account for $640.10. Each defendant denied indebtedness in any manner whatever, and pleaded no partnership and the statute of frauds. ' The jury found '“a verdict for plaintiff as sued for against W. J. Taylor and E. S. Taylor, a partnership,” for the full amount claimed. Each defendant filed his motion for a new trial upon both the general and special grounds. The court overruled each of said motions, and the defendants excepted separately to his judgment so doing.

Where a suit is brought on an open account for advertising done under a contract made by an alleged partnership, and one of the members denies the allegations of indebtedness and pleads no partnership, this places upon the "plaintiff the burden of proving both the debt and the partnership. See American Cotton College v. Atlanta Newspaper Union, 138 Ga. 147 (3) (74 S. E. 1084). In view of the fact that “An action is not maintainable against a partnership upon the individual contract of a member thereof” (Citizens Nat. Bank v. Jennings, 35 Ga. App. 553 (1-b), 134 S. E. 414; Floyd v. Wallace, 31 Ga. 688 (5); Wood v. Martin, 115 Ga. 147 (2), 41 S. E. 490; Hill v. Wallace, 31 Ga. App. 72, 119 S. E. 468; Pope v. Jennings, 34 Ga. App. 498, 130 S. E. 348), and in view of the further fact that certainly there could be no recovery if the obligation declared upon proved to be that of a third person, we must conclude that the decision in 138 Ga., supra, means that the burden of proving a partnership debt rests upon the plaintiff in a case like the one at bar.

It appears from the evidence of R. S. Taylor, sworn as a witness for the plaintiff, that he and W. J. Taylor were engaged in a farming enterprise for which W. J. Taylor was to furnish individually, as a part of his contribution to the business, all the fertilizers used therein; that, acting as W. J. Taylor’s agent and under his specific instructions, he bought said fertilizers for W. J. Taylor, and so advised H. M. Groover, who took the order and consigned the fertilizers to the witness. H. M. Groover, sworn for the plaintiff, testified that R. S. Taylor asked him the price of fertilizers, saying at the time that he wanted to see W. J. Taylor before buying; that R. S. Taylor returned in five days and ordered the fertilizer on a cash basis; that no charge was made for the goods at that time against anybody; that he billed the fertilizer to R. S. Taylor “down Kirby’s road,” and delivered it to the Georgia Northern Railway Company for shipment in the usual course of transportation. We quote from the testimony of this witness as follows: “Spangler (R. S.) Taylor bought it (the fertilizer) for some one else, not for himself. I did not know him in it, except to deliver it to him. . . Spangler Taylor never bought any fertilizer from me or asked to buy any from me for himself individually. It was not my intention to ship any to him for his own account.” W. J. Taylor, sworn as a witness for himself, testified that he had no interest in any farming enterprise with R. S. Taylor, and that he had never at any time been his partner; that he did not purchase said fertilizer himself, and did not authorize R. S. Taylor or any one else to do'so for him, and that he neither received nor used it.

If R. S. Taylor’s version of the transaction is correct, the debt declared upon was the individual obligation of one of. the partners, and there could be no recovery against the partnership, even though, as testified by R. S. Taylor, he used the fertilizer in question in said farming operations. See decisions cited above. If W. J. Taylor’s version is correct, there was no partnership and no indebtedness whatever on his part. It certainly does not appear from Groover’s testimony that the fertilizer was sold to the alleged partnership.

In short, our conclusion is that the plaintiff failed to carry the burden ■ resting upon it of showing that the debt declared upon was a partnership obligation, that the verdict was without evidence to support it, and that the court erred in overruling the general grounds of the motion for new trial filed by each of the defendants.

Judgments reversed.

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


author: Bloodworth, J.

text:
    18150.
    CONGOLEUM-NAIRN INC. v. BARKER WAREHOUSE CO.
    During the term at which a case was dismissed an order was taken vacating the order of dismissal and reinstating the case. Under the rulings in Athens Apartment Corporation v. Hill, 156 Ca. 437 (119 S. E. 631), and cit., this court will not say that the trial judge flagrantly abused his discretion in vacating the order of dismissal and reinstating the case.
    Appeal and Error, 4. O. J. p. 830, n. 41.
    Dismissal and Nonsuit, 18 O. J. p. 1209, n. 53, 55, 57.
    Decided July 14, 1927.
    Motion to reinstate; from city court of Atlanta—Judge Dorsey. April 23, 1927.

      Hendrix & Buchanan, for plaintiff in error.

      Walldns, Aslill & Walldns, contra.
   Bloodworth, J.

This case, while pending in the city court of Atlanta, was dismissed for want of prosecution. During the term at which it was dismissed the plaintiff filed a petition to set aside the order of dismissal. Upon a hearing- of the petition the judge passed an order vacating and setting aside the order of dismissal and reinstating the case. In Athens Apartment Corp. v. Hill (supra), speaking through Justice Hines, the Supreme Court said: vDuring a term of court at which a judgment is rendered the court has power, on its own motion, to vacate the same for irregularity, or because it was improvidently or inadvertently entered. The court has plenary control of its judgments, 'orders, and decrees during the term at which they are rendered, and may amend) correct, modify, or supplement them for cause appearing, or may, to promote justice, vacate them as may in its discretion seem necessary; and the exercise of his discretion by the trial judge in reinstating a case dismissed for want of prosecution will not, unless flagrantly abused, be disturbed. ’ The order of reinstatement is evidence of the improper .dismissal of the case and of the propriety of its reinstatement. Davis v. Alexander, 27 Ga. 479; Wallace v. Gason, 42 Ga. 435; Strachan v. Wolfe, 2 Ga. App. 254 (58 S. E. 492); Jones v. Garage Equipment Co., 16 Ga. App. 596 (85 S. E. 940).” Under this ruling and the principles announced in the cases cited in the opinion, this court will not say that the trial judge flagrantly abused his discretion in vacating the order of dismissal and reinstating the case. See also Smith v. Armour Fertilizer Worlcs, 18 Ga. App. 521 (89 S. E. 1087).

Judgment affirmed.

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


author: Bbovles, O. J.

text:
    18151.
    Letton v. Kitchen, by next friend, et al.

    Motor Vehicles, 42 C. J. p. 1242, n. SS, 89.
   Bbovles, O. J.

1. Where the driver of a motor-truck, traveling on a street in the City of Atlanta, attempted to turn to liis right into an intersecting street without extending his arm at an angle above the horizontal as a signal of his intention so to turn, he was guilty of a violation of an ordinance of the city; and where the driver of an automobile, traveling behind the truck and in'the same direction, attempted .to pass the truck on the right, in violation of another ordinance of the city, just as tlie truck began to turn to its right into the intersecting street, and the driver of the following automobile was thereby forced to drive upon the adjacent sidewalk, and his automobile struck and injured a person upon the sidewalk, in a suit brought' by the injured person for damages against both drivers it was not error for the court to overrule the general demurrer to the petition, interposed by the driver of the truck, since it was a question of fact for the determination of the jury whether the negligence of the driver of the truck contributed directly and concurrently with the negligence of the driver of the automobile in causing the injuries sued for. See, in this connection, Bonner v. Standard Oil Co., 22 Ga. App. 532 (96 S. E. 573), and cit.; Ga. Ry. & Power Co. v. Ryan, 24 Ga. App. 288 (100 S. E. 713); Southern Cotton Oil Co. v. Wallace, 27 Ga. App. 415 (108 S. E. 624) ; Gooch v. Ga. Marble Co., 151 Ga. 462 (107 S. E. 47); Central of Ga. Ry. Co. v. Wheat, 32 Ga. App. 151 (122 S. E. 794); Rome Ry. & Light Co. v. King, 30 Ga. App. 231 (2) (117 S. E. 464).

Decided July 14, 1927.

Damages; from Fulton superior court—Judge Moore. April 25, 1927.

Certiorari was granted by the Supreme Court.

Slaton & Hoplcins, for plaintiff in error.

Harwell, Fairman & Barrett, A. C. Corbett, D. J. Meyerhardt, contra.

2. The court overruled all the special grounds of the demurrer except ground 13, which was sustained. The only allegations in the petition as to the negligence of the driver of the truck which were relevant to the plaintiff’s cause of action against him were in 'reference to his failure to give the proper warning signal when he turned into the intersecting street, and the court erred in overruling the following special grounds of the demurrer: 4, 6, 7, 9, 11(b), 11(c), 11(d) and 11(e).

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    18153.
    Brown v. The State.
    Criminal Law, 17 C. J. p. 88, n. 46.
    Motor Vehicles, 42 C. J. p. 1336, n. 76.
   Luke, J.

1. Brown was convicted in the city court of Dublin of operating an automobile on the public highway leading from Roekledge to Dublin, while under the influence of intoxicating liquor. The evidence showed that he “was driving that Eord truck on the public highway that leads from . . [Dublin] to Roekledge;” that “it is a public highway and leads across the river and on toward Roekledge, Ga.; it is a part of the highway system of this State;” and that while so driving he “was drunk.” See Long v. State, 32 Ga. App. 451 (124 S. E. 110). The evidence amply authorized the verdict.

Decided July 14, 1927.

Operating automobile while intoxicated; from city court of Dublin—Judge Bidgood. March 26, 1927.

W. A. Bampier, for plaintiff in error.

J. A. Merritt, solicitor, contra.

2. Such grounds of the motion for a new trial as are approved by the trial judge are without merit; and, under the note of the trial judge approving the grounds of the amendment to the motion, the other grounds will not require a reversal. “Grounds of a motion for a new trial must have the unqualified approval of the trial judge.” Goolsby v. State, 35 Ga. App. 167 (2-a) (132 S. E. 245); Hammond v. State, 34 Ga. App. 234 (128 S. E. 918).

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., oone.ur.


text:
    18154.
    HARRIS v. THE STATE.
    “One accused of crime has the right, if he demands it by timely demurrer, to have an accusation perfect in form and substance.” .
    The allegation that the defendant fraudulently represented that he was “agent authorized to take orders for clothing” was subject to demurrer because of failure to allege whom he claimed to represent as agent in taking such orders. The indictment does not inform the defendant of the exact transaction for which he is indicted, and facts are not set out so as to enable him to prepare his defense. The court erred in overruling the demurrer to the indictment.
    Ealse Pretenses, 25 O. J. p. 623, n. 86.
    Indictments and Informations, 31 0. J. p. 661, n. 95, 96; p. 712, n. 71; p. 819, n. 19.
    Decided July 14, 1927.
    Cheating and defrauding; from Putnam superior court—Judge Park. April 27, 1927.
    The indictment alleged that the accused “with force and arms, did unlawfully, wrongfully and fraudulently represent to one Morris Griffin that he, the said Percy Harris, was agent authorized to take orders for clothing, and did procure from the said Morris Griffin the sum of ten dollars as part payment on an order, when in truth and in fact he, the said Percy Harris, was not an agent authorized to sell and take orders for clothing, and by said deceitful means and fraudulent practice did cheat and defraud the said Morris Griffin, whereby loss was sustained by the said Morris Griffin in the sum of ten dollars.” The accused filed a special demurrer which in part was as follows: “Said special presentment is insufficient in law, for the reason that the same is so vague and indefinite as not to reasonably inform this defendant of the exact transaction for which it is sought to put him on trial, and because of said fact this defendant is unable to prepare his defense, summons his witnesses, and go to trial;” and “on the ground that it sets out the following: ‘did unlawfully, wrongfully and fraudulently represent to one Morris Griffin that he, the said Percy Harris, was an agent authorized to take orders for clothing/ and because said special presentment does not set out for whom said Percy Harris claimed to be agent, and whose agent he claimed to be, or whom he claimed to represent as agent in taking said orders for said clothing;” and that said special presentment “does not set out whose agent defendant claimed to be or whom he claimed to represent in taking orders for clothing,” and does not “set out any facts so as to enable this defendant to prepare his defense in said case and summons his witnesses.” The demurrer was overruled, and exceptions pendente lite were filed. Upon the trial of the case the jury returned a verdict of guilty; a motion for a new trial was filed, and when this was overruled the accused excepted.

      B. G. Jenkins, for plaintiff in error.

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

(After stating the foregoing facts.) The indictment is so vague and indefinite that it does not inform the accused of the exact transaction for which he is indicted. It “does not set out whose agent defendant claimed to be, or whom he claimed to represent in taking orders for clothing,” nor does it “set out any facts so as to enable this defendant to prepare his defense.” In Burkes v. State, 7 Ga. App. 39 (65 S. E. 1091), Chief Judge Hill (p. 42) quoted with approval the following from Archbold’s Or. Pr. & PL: “It is an elementary principle of criminal pleading that where the definition of an offense, whether it be at common law or by statute, includes generic terms, it-is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition, but it must state the species; it must descend to particulars.” In this case we think the accused was entitled to know by allegations in the indictment the particular person, firm, or corporation that he was alleged to represent as agent. Without such an allegation the principal would probably be undiscoverable, and the accused might be placed absolutely at the mercy of the prosecution though the testimony against him may be false. It is true that upon a trial of the case the State would be required to affirmatively show that the accused represented that he was the agent of and authorized to take orders for some concern, but the defendant should be put upon notice by a specific allegation in the indictment and thus be enabled to prepare to meet the proof made by the State on this vital question. It would seem to be unfair that in order to prepare his defense he must be called upon to investigate every concern in the State who had agents employed for the purpose of taking orders for clothing. “He had the right to have this essential element of the offense described with sufficient particularity to relieve him from unnecessary burdens in making his defense.” For these reasons we think that the court erred in overruling the special demurrer, and because of this error the further proceedings were nugatory. Carter v. State, 12 Ga. App. 432 (2) (78 S. E. 205); Roughlin v. State, 17 Ga. App. 210 (3) (86 S. E. 452); Wingard v. State, 13 Ga. 400 (2).

Judgment reversed.

Broyles, 0. J.,-and Luke, J., concur.


text:
    18155.
    Troupe v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74; p. 1218, n. 61; p. 1230, n. 66.
    Decided July 14, 1927.
   Broyles, C. J.

1. A ground of the motion for a new trial was based on denial of a motion to continue the ease on account of the absence of some of the defendant’s witnesses. However, the ground, together with the exhibit attached thereto, fails to show the names of the absent witnesses or where they resided, that they had been subpoenaed, what facts they were expected to prove, or that the movant expected to have their testimony at the next term of the court. It is apparent that the ground failed to show error.

2. The grounds of the motion for a new trial based upon alleged newly discovered evidence fail to show that the trial judge abused his discretion in overruling those grounds, since the affidavits in support of the witnesses upon whose newly discovered evidence a new trial was sought failed to give the names of their associates. Ivey v. State, 154 Ga. 63 (6) (113 S. E. 175).

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

Judgment affirmed.

Lulce and Bloodworilv, JJ., concur.

Kobbery; from Montgomery superior court—Judge Graham. April 9, 1937.

N. L. Gillis Jr., W. B. Kent, for plaintiff in error.

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


text:
    18161.
    FUTCH v. THE STATE.
    1. “While the evidence in this case amply supported a finding that the accused used the language charged in the accusation, it was not sufficient to authorize a finding that when he used the same he knew a female was within hearing, or that he used the same under such circumstances that he must have known this fact. It is true the language was used on a public road near a dwelling house, and that a female was in the house, and [may have] heard the language, but it does not appear that the accused knew who constituted the members of the household of the man who owned the house. Taking the evidence as a whole, it did not warrant the conviction of the accused of the offense charged in the accusation.”
    2. The court erred in overruling the motion for a new trial.
    Criminal Law, 17 C. J. p. 252, n. 16.
    Disorderly Conduct, 18 C. J. p. 1221, n. 87; p. 1227, n. 6.
    Decided July 14, 1927.
    Profane language in presence of female; from Evans superior court—Judge Daniel. April 14, 1937.

      C. L. Cowart, for plaintiff in error.

      J. T. Grice, solicitor-general, contra.
   Luke, J.

The defendant was convicted of using obscene, vulgar, and profane language in the presence of a female. There is evidence that the defendant used such language betwen 3:30 and 3 o’clock a. m., in the road, about sixty feet from a dwelling house.. The contention of the State is that a female in the residence heard the language, for she was awake before and after the use of the profanity. The father of the female, who was the principal witness for the State and the prosecutor in the case, testified: “I do not know whether she was awake or not at that time. . .

I can not say of my own knowledge whether she was awake when any of the cursing was done, nor can I say that she heard any of it.” The only other witness for the State testified that the defendant “was not talking very loud.” No witness swore that the female heard the language alleged to have be.en used by the defendant.

The undisputed evidence was that the female in the residence had been living with her husband in Savannah. The prosecutor swore that he did not know whether the defendant knew of her presence in the residence or not. The defendant stated: “The last I knew of his daughter she was living in Savannah. I did not hear anybody say that she was there. . . I certainly did not know that Mr. G-lisson’s daughter was there.” No witness swore that the defendant knew that the female was in the residence, or that the defendant had ever seen her there or in the community. Without knowledge of the female’s presence in the residence, there would be no “criminal intent” to commit this crime. The prosecutor swore: “My feelings toward the defendant are not good, and I have plenty of reason for not feeling good toward him, as he has injured me $5000, and I don’t have anything to do with him. His folks and my folks do not associate with each other.”

“While the evidence in this ease amply supported a finding that the accused used the language charged in the accusation, it was not sufficient to authorize a finding that when he used the same he knew a female was within hearing, or that he used the same under such circumstances that he must have known this fact. It is true the language was used on a public road near a dwelling-house, and that a female was in the house and heard the language, but it does not appear that the accused knew who constituted the members of the household of the man who owned the house. Taking the evidence as a whole, it did not warrant the conviction of the accused of the offense charged in the accusation.” Parks v. State, 110 Ga. 761, 762 (36 S. E. 73). The facts of the instant' case furnish a stronger reason for a reversal than is shown in the decision in the Paries case. In that ease (in which the judgment was reversed) the female “heard” the language, while in the instant case she may or may not have heard it. Furthermore, the fact that the prosecutor’s daughter had been living in Savannah, and the families of the prosecutor and the defendant did not “associate with each other,” makes it reasonable to suppose, in the absence of any positive evidence to the contrary, that the defendant did not know of the female’s presence in the dwelling house. The evidence does not exclude every reasonable hypothesis save that of the guilt of the accused.

The court erred in overruling the motion for a new trial.

Judgment reversed.

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


author: Blüodworth, J.

text:
    18173.
    Cochran v. The State.
    Criminal Law, 17 G. J. p. 148, n. 73 New.
    Decided July 14, 1927.
    Possessing intoxicating liquor; from Cobb superior court—Judge John S. Wood. April 11, 1927.

      II. B. Moss, for plaintiff in error.

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

“It not appearing from the bill of exceptions and the record that the bill of exceptions was presented to the trial judge within twenty days of the judgment excepted to (the overruling of the defendant’s motion for a new trial), this court is without jurisdiction to entertain the case.” Hutchins v. State, 35 Ga. App. 395 (133 S. E. 265).

Writ of error dismissed.

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


text:
    18174.
    Grinstead v. The State.
    Homicide, 30 C. J. p. 406, n. 17; p. 407, n. 19; p. 408, n. 22.
    Decided July 14, 1927.
    Manslaughter; from Montgomery superior court—-Judge Graham. April 9, 1927.

      Sajfold, Sharpe & Saffold, for plaintiff in error.

      M. II. Boyer, solicitor-general, contra.
   Broyles, C. J.

1. “The law of voluntary manslaughter may properly be given in charge to the jury on the trial of one indicted for murder, where, from the evidence or from the defendant’s statement at the trial, there is anything deducible which would tend to show that he was guilty of voluntary manslaughter, or which would be sufficient to raise a doubt as to which of these grades of homicide was committed.” Reeves v. State, 22 Ga. App. 628 (97 S. E. 115); Riders v. State, 24 Ga. App. 279 (100 S. E. 781); May v. State, 24 Ga. App. 379 (11), 382 (100 S. E. 797). Under the ruling just stated and the facts of the instant case, the court did not err in instructing the jury upon the law of voluntary manslaughter.

2. The verdict was authorized by the evidence.

Judgment affirmed.

Luke and Bloodworih, JJ., concur.


text:
    18175.
    Whatley v. The State.
    Criminal Law, 17 C. J. p. 148, n. 73 New.
    Decided July 14, 1927.
    Possessing, liquor; from Early superior court. Judge Yeomans. April 6, 1927.

      Lowrey Stone, for plaintiff in error.

      B. T. Gaslellow, solicitor-general, B. B. Arnolds, E. G. Hill, contra.
   Luke, J.

It appearing from the bill of exceptions and the record that the bill of exceptions was presented to the trial judge more than twenty days from the date of the judgment excepted to .(the overruling of defendant’s motion for a new trial), this court is without jurisdiction to entertain the case.

Writ of error dismissed.

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


text:
    18179.
    BARRON v. THE STATE.
    It is not a good ground of a motion for a new trial that the court failed to give to the jury, in connection with an instruction not alleged to be erroneous, an instruction not' requested.
    This court can not say that there was no evidence to support the verdict in this ease.
    Criminal Law, 16 C. J. p. 964, n. 31; p. 1049, n. 82; p. 1050, n. 84; p. 1056, n. 20; 17 C. J. p. 252, n. 16; p. 271, Jl. 41.
    Decided July 14, 1927.
    Possessing liquor; from Eloyd superior court—Judge Maddox. May 7, 1927.

      M. B. Eubanlcs, Porter & Mebane, for plaintiff in error.

      J. P. Kelly, solicitor-general, contra.
   Bloodworth, J.

1. The accused was convicted of having in his possession, custody, and control intoxicating liquors. The only special ground of the motion for a new trial alleges that the .court erred in failing to instruct the jury, in connection with his charge on circumstantial evidence, that the defendant, who was driving the car and was traveling with another in whose possession in the car corn liquor was found, ihust have had knowledge of the presence of the liquor. There was no request for such a charge. There is no claim that the instructions given were erroneous. “It is not a good assignment of error on a portion of the judge’s charge which states a correct principle of law applicable to the case that some other correct and appropriate instruction was not given.” Grant v. State, 152 Ga. 252 (109 S. E. 502). See Conley v. State, 21 Ga. App. 134 (94 S. E. 261). Moreover, immediately following his charge on circumstantial evidence the judge did instruct the jury that in order to convict the defendant they must find that he “knowingly had in his possession, custody or control” some one of the liquors named in the indictment.

2. The verdict has the approval of the trial judge, and this court can not say that there is no evidence to support it. In Rogers v. State, 101 Ga. 562 (28 S. E. 978), Judge Cobb said: “Applications for new trials on the ground that the verdict of the jury is contrary to evidence are addressed to a sound legal discretion to be exercised by the trial judges. When this discretion has been exercised and the motion for a new trial overruled, this court will not interfere when there is any evidence which would justify the jury in reaching the conclusion which is set forth in the verdict. While in many cases we would probably not have rendered the verdict returned, and, if we „were authorized to pass upon the case as on appeal, would render here a different judgment, still under the established practice of this court as required by the law of the State, we can not overrule a trial judge, who, fresh from the atmosphere of the trial, sends to us a record in which he endorses the finding of the jury which tried the case in his presence. This is true even in cases where the evidence might be described as weak, unsatisfactory, and doubtful. The wisdom and discretion of the trial judge is sufficient for us to endorse his judgment in cases of this character.”

Judgment affirmed.

Broyles, G. J., and Lu'lce, J., concur.


text:
    18188.
    Landrum v. The State.
    Criminal Law, 17 C. J. p. 252, n. 16; p. 271, n. 41.
   Broyles, O. J.

1. The single special ground of the motion for a new trial (complaining of an excerpt from the charge of the court) shows no error.

2. Under all the facts of the case this court can not hold that there was no evidence authorizing the verdict; and, the finding of the jury having been approved by the trial judge, this court is without authority to interfere with the verdict.

Decided July 14, 1927.

Larceny of automobile; from Fulton superior court—Judge Pomeroy. April 19, 1927.

Application for certiorari was made to the 'Supreme Court.

Thomas G. Lewis, 0. C. Hancock, for plaintiff in error.

John A. Boykin, solicitor-general, J. W. LeOraw, John H. Hudson, contra.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    18189.
    WADE v. THE STATE.
    1. “Rape, according to our code, being the carnal knowledge of a female forcibly and against her will, if the sexual act be -accomplished with the mental consent and acquiescence of the female, and not in opposition to her will, the offense of rape is not committed, and, even though such consent be induced by the use of such a measure of force as might, under ordinary circumstances, serve to overcome her power of resistance, if, notwithstanding the use of such force, she finally consent to the sexual act and her will cease to operate against its consummation, the offense is not rape.”
    2. There was evidence sufficient to authorize the jury to find the defendant guilty of seduction, and the court did not err in overruling the motion for a new trial, which was based on the general grounds only.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Rape, 33 Cyc. p. 1423, n. 55; p. 1424, n. 58, 59.
    Seduction, 35 Cyc. p. 1358, n. 66.
    Decided July 14, 1927.
    Seduction; from Colquitt superior court—Judge W. E. Thomas. April 15, 1927.

      Waldo H&Loache, for plaintiff in error.

      C. H. Hay, solicitor-general, contra.
   Luke, J.

The defendant was convicted of seduction. His counsel insists that “under the record thé defendant is guilty of rape.” There is much in the record to show that the sexual act was consummated as the result of force by intimidation, a threat to kill; and were we considering the evidence from the standpoint of jurymen, we might reach a conclusion different from the one here reached. However, we can not invade the province of the jury; and when there is evidence to support their finding on questions of fact, this court will not interfere. The woman alleged to have been seduced testified: “I did not yield to him until he made me do it, and would not have yielded then if I had not been engaged to him. Eight there at that time and place [of the intercourse] he said we would get married in about two weeks, said he had already advertised the application for a marriage, posted the notice, he didn’t say where, whatever notice or advertisement has to be run to get it. We stayed there where we had sexual intercourse about two hours. He took me home from there and came back to my house the next Saturday. . . The only words Jake said to me were to persuade me to do this, and threatened me. He told me he would marry me, had advertised and all. He told me that April 4, 1926, ai ihai time and plac.e. I had never had intercourse with him nor anybody else before that time nor since.” The evidence showed that she stayed with the defendant a considerable time after the commission of the act; that he thereafter took her home; that she told no one about it for about two weeks; and that defendant came to her house the next Saturday. These facts would indicate that the crime was not that of rape; and there is some evidence to the effect that she yielded because of the defendant’s promise, made at that time and place, to marry her. The record shows also that the act was committed while the parties were standing and that the woman became pregnant as a result thereof. “Eape, according to our code, being the carnal knowledge of a female forcibly and against her will, .if the sexual act be accomplished with the mental consent and acquiescence of the female, and not in opposition to her will, the offense of rape is not committed, and, even though such consent be induced by the use of such a measure of force as might, under ordinary circumstances, serve to overcome her power of resistance, if, notwithstanding the use of such force, she finally consent to- the sexual 'act and her will cease to operate against its consummation, the offense is not rape.” Mathews v. State, 101 Ga. 547 (29 S. E. 424). See also Avery v. State, 12 Ga. App. 562 (4) (77 S. E. 892).

There was evidence sufficient to authorize the jury to find the defendant guilty of seduction; and, the case being here upon the general grounds only, the judgment overruling the motion for a new trial is

Affirmed.

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


text:
    18204, 18205.
    GRAY v. THE STATE (two cases).
    A conviction of having possession of intoxicating liquor was not authorized by the evidence.
    Criminal Law, 16 O. J. p. 764, n. 54; p. 1179, n. 67,
    Decided July 14, 1927.
    Possessing liquor; from Eloyd superior court—Judge Maddox. May 7, 1927.
    Whisky was found in the basement and underneath the back porch of a two-story building in which three of the six rooms on the top floor were occupied by the accused—“the Gray boys”— as tenants. These three rooms were the only occupied part of the building. The first floor was formerly used as a storehouse. The only way to get to the top floor was by a stairway leading from the back porch and’ on the outside of the building. Officers searching for whisky found none on the top floor, but in one of the rooms, in which there was bedding, found a suitcase containing a large number of new corks or bottle stoppers and four or five pint flasks, and found also some fruit jars. An officer testified that he smelled one of the flasks and one of the fruit jars and that they smelled of whisky. Six pints of whisky were found underneath the back porch and near a door Avhieh opened into the basement, and twenty-two pints were found in. the basement, some hidden in an automobile casing and some in a glass jug partly buried in the ground; it looked as if it “had been freshly done.” The basement door was .not fastened. The building is in a thickly settled part of the city of Rome and was not inclosed, and the general public had access to it. It was testified that the building was “a public hangout place,” and “always had a bad reputation as a hangout place for bootleggers, drinkers, and gamblers.” There Avas evidence that one of the accused had rented their rooms about eight or ten days before the officers made the search, and that they were preparing to “run a pressing club” there. One of the defendants stopped the officers at the door upstairs until he was ' told that they had a search warrant. The defendants denied knowledge of the presence of whisky in the building.

      Porter & Mebane, for plaintiffs in error.

      J. P. -Kelly, solicitor-general, contra.
   Bloodworth, J.

These defendants were indicted separately but tried together. The evidence as to both was the same, was entirely circumstantial, and was not sufficient as to either defendant to exclude every reasonable hypothesis save that of his guilt. It follows that the court erred in overruling the motion for a new trial. Clifton v. State, 34 Ga. App. 590 (130 S. E. 359); Wilson v. State, 32 Ga. App. 427 (123 S. E. 623), and cit.; Toney v. State, 30 Ga. App. 61 (116 S. E. 550); Vaughn v. State, 29 Ga. App. 388 (115 S. E. 670).

Judgment reversed.

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


text:
    18206.
    Moss v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided July 14, 1927.
    Carrying pistol unlawfully; from Taliaferro superior court-judge Perryman. April 11, 1927.

      J. A. Mitchell, P. II. Mitchell, for plaintiff in error.

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

The motion for a new trial contained the usual general grounds only, and the evidence authorized the verdict.

Judgment affirmed.

Lulce and Bloodworth, JJ., eoneur.


text:
    18207.
    CHAMBLISS v. THE STATE.
    1. “A reckless disregard of human life may be the equivalent of a specific intent to kill; and whether it existed in this case was a question for the jury.”
    2. The evidence abundantly supported the verdict.
    Homicide, 30 C. J. p. 23, n. 37 New; p. 318, n. 96; p. 326, n. 84.
    Decided July 14, 1927.
    Assault with intent to murder, from Upson superior court— Judge Searcy. May 12, 1927.

      James R. Davis, J. F. Hatchett, for plaintiff in error.

      F. M. Owen, solicitor-general, contra.
   Luke, J.

The defendant was convicted of assault with intent to murder. His motion for a new trial is based on the general grounds only. The evidence shows that the defendant, .tragther with another negro man and two women, neither lawfully fljttried to the other, driving a red Buick automobile at the rate of “fifty or sixty miles per hour,” attempted to pass a Ford car, and although it was at a wide place where “three or four ears could travel abreast,” and the Ford ear was on the right side of the road and “was as near the edge of the road as it could get,” the defendant hit the Ford car, turning it over, and it landed in a field “about thirty feet from the road,” and injured the occupants thereof, one of the occupants, a lady, having her vertebrae broken so that she has to “wear a brace,” is “constantly in dread and fear,” “can not sit up at all without a brace,” and “can not walk unaided.” The evidence shows that the defendant did not even stop after he hit the Ford and injured the occupants thereof, and that “he was drunk.” A whisky bottle, almost empty, was found, and the defendant admitted “I had taken a little before I left home.”

Counsel for the defendant admits in his brief that the evidence shows that the defendant, while attempting to pass the Ford, struck it and turned it over, but insists that^no malice is shown. “Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.” Penal Code, § 62. In Dennard v. State, 14 Ga. App. 485 (81 S. E. 878), this court held: “A reckless disregard of human life may be the equivalent of a specific intent to kill; and whether it existed in this case was a question for the jury.” And in the opinion in that ease (p. 488) it is said: “The presumption of malice may arise from a reckless disregard of human life; and ‘there are wanton or reckless states of mind which are sometimes the equivalent of a specific intent to kill, and which may and should be treated by the jury as amounting to such intention when productive of violence likely to result in the destruction of life, though not so resulting in the given instance.’ ” If the injuries to the occupants of the Ford car, or any of them, had proved fatal, “the accused might well have been tried for the offense of murder, leaving it to the jury to say whether thé unlawful acts, with all their attendant facts and circumstances, rendered the transaction one which, in its conseqiMices, naturally tended to destroy human life.” Black v. State, 34 Ga. App. 449, 452 (130 S. E. 591).

There was ample evidence to authorize the jury to find that the defendant, while under the influence of intoxicating liquor, was driving his car at an unlawful rate of speed, in a reckless manner, and with utter disregard of the lives and safety of others. It supports the verdict rendered.

Judgment affirmed.

Broyles, G. J., md Bloodworth, J., concur.


text:
    18208.
    JAMES v. THE STATE.
    The evidence in behalf of Ihe Ríale, being negative in its character, is, in view of the testimony for the defendant and his statement, insufficient to authorize his conviction of vagrancy.
    Criminal Law, 16 C. J. p. 761, n. 25; p. 762, n. 26. Vagrancy, 39 Cye. p. 1109, n. 8; p. 1112, n. 25.
    Decided July 14, 1927.
    Vagrancy; from city court of LaGrange—Judge Tuggle. May 2, 1927.

      Duke Davis, D. A. Jones, for plaintiff in error.

      L. L. Meadors, solicitor, contra.
   Bloodworth, J.

The indictment for vagrancy charged that the accused led “an idle, immoral, and profligate life, he having no property to support him and being able to work and not working.” There is no evidence to support the allegation that the accused led an immoral and profligate life, and this is not insisted upon by the State. Did the evidence support the charge that the defendant lived “an idle life, being able to work and having no property to' support him?” Three witnesses testified for the State. A county policeman who lived in West Point, but usually left that city early in the morning, swore that the accused moved into Troup county about three months before the trial of the case and lived in West Point; that the accused was a painter and carpenter; that he saw him nearly every day early in the morning, and that he had never seen him do any work, but that he had heard about his painting a filling station at West Point. A member of the police force at West Point swore that the accused is “able to work and has no visible means of support that I know of, . . I could not swear that he does not work, I just don’t see him at work. . . I heard about his painting a filling station.” Another policeman testified that the accused “moved to West Point about three months ago. I have not seen him at work since he moved over there. . . Sometimes there are several days that I do not see him. . . He does not steal that I know of. . . He does not gamble that I know of.” This witness and the county policeman each swore that, as far as he knew, the accused paid his bills, and each swore that the defendant was not a charge upon West Point or Troup county.- It will be noted that the evidence as to his being idle is negative in its-character. See Mooney v. State, 32 Ga. App. 448 (123 S. E. 734); Baugh v. State, 32 Ga. App. 496 (123 S. E. 923). A witness for the defendant testified that the accused painted a filling station at West Point and was paid for the work. Another witness for the accused swore: “I had some work for him to do last year. . . He worked for me as long as the work lasted. I had him building some garages.” The defendant stated: “I am a painter and carpenter. Last year I did a good deal of work over in Alabama. I built two houses over‘there for Mr. Sims. I helped build a concrete building just across the State line, for the junk man down there. That took nearly all the summer. Then I helped build the Kress building and another one right by it. Then I worked two weeks down at Opelika, Ala., on some work down there until that job gave,out. Mr. Dixon wanted me to cover the house I live in and do some patching on it. I did that and let it go on the rent. Then I painted this filling station down there at West Point. I got $50 out of that job. You can see the paint is still on my shoes. These are the shoes I painted it in, and you can see where the paint spattered on it and is still there. In my line of work you can’t get work at all times. There is times that the work is dull and you can’t get any work. This year I have been over in West Point, just moved over there, and work has been hard to find. I have been promised work on the new church down there as soon as the brick work is out of the way so that the carpenters can start in. I have been by there several times to see about that, because they said that they would use me when the brick work is through. I work whenever I can get the work to do. I provide for my family and pay my grocery bills and pay my rent. I don’t call on anybody for any help.”

Under the charge on which the State is asking for a conviction it must appear that, the accused having no visible and known means of a fair, honest and reputable livelihood, and being able to support himself by his own labor, he failed to work, lived in idleness, and was or threatened to become a drone or a charge upon the public. Hartman v. State, 119 Ga. 427, 429 (46 S. E. 628). These things do not appear from the evidence in this case. In Leonard, v. State, 5 Ga. App. 494 (63 S. E. 530), this court said: “Our statute as to vagrancy is intended to enforce

honest and reputable living, but it does not tend to luxury, nor compel any one to earn more than his necessities require.” It is apparent from the record in this case that the accused, during the several months preceding his arrest, must have earned a sufficient amount of money to support himself honestly, even though it was in a meagre style. In his statement he said: “I work whenever I can get the work to do, and I provide for my family and pay my grocery bills and pay my rent.” Taking the record as a whole, we think that the verdict was unwarranted, and that the trial judge should have granted a new trial. See Lewis v. State, 3 Ga. App. 322, 324 (59 S. E. 933); Ray v. State, 33 Ga. App. 50 (125 S. E. 767); Daniel v. State, 110 Ga. 915 (36 S. E. 293).

Judgment reversed.

Broyles, G. J., and Lulce, J., concur.