text:
    17429.
    COPELAND v. CURTIS.
    The evidence as to injury from food furnished would authorize a jury to apply the maximum res ipsa loquitur in this case, and it was error to grant a nonsuit.
    Appeal and Error, 4 C. J. p. 939, n. 22, 23; p. 944, n. 83.
    Rood, 26 C. J..p. 784, n. 78; p. 788, n. 41, 42, 43.
    Negligence, 29 Cyc. p. 592, n. 98.
    Decided December 20, 1926.
    Action for damages; from city court of Atlanta — Judge Reid. March 16, 1926.
    Application for certiorari was denied by the Supreme Court.
    Illness of the plaintiff was alleged to have been caused by ice cream and pork sandwiches wrapped at the defendant’s store and sold to her there, and alleged by her to have been unwholesome and deleterious.

      Carl B. Copeland, G. N. Bynum, for plaintiff.

      Dorsey, Howell & Heyman, Mark Bolding, for defendant.
   Jenkins, P. J.

1. This case is controlled adversely to the defendant, in whose favor a nonsuit was granted, by the ruling made by this court in McPherson v. Capuano, 31 Ga. App. 82 (121 S. E. 580). The proof in the instant case, going to show the deleterious character of the articles of food furnished to the plaintiff, consists not only of expert testimony somewhat similar to that offered in the McPherson case, but in the instant case there is additional testimony, going to show that similar food was- furnished to a person other than the plaintiff at the same time, and that both the other person and the plaintiff were thereafter made ill in a similar manner. The defendant’s contention that under the Civil Code (1910), § 4460, the plaintiff must allege and prove carelessness in furnishing deleterious food, resulting in injury to the customer partaking thereof, does not take the instant case from within the operation of the adjudication made in the McPherson case. While negligence on the part of the defendant must be alleged and proved, yet “where the plaintiff establishes the unwholesome quality of the food [italics ours], with injury from its consumption, these facts in themselves would sufficiently speak of the defendant’s negligence to' make a prima facie caseand until the defendant is exonerated, the jury would be authorized to apply the maxim res ipsa loquitur, and to find such issue in favor of the plaintiff.” McPherson v. Capuano, supra. Such a prima facie case can be established by proof of surrounding facts and circumstances. See Atlanta Coca-Cola Bottling Co. v. Danneman, 25 Ga. App. 43 (102 S. E. 542). The rule in force in this State as applicable to cases such as disclosed by the facts of the present record does not have application where goods are purchased from a reputable dealer and sold in the original package. See, in this connection, Fleetwood v. Swift, 27 Ga. App. 502 (108 S. E. 909). Under the doctrine announced in the McPherson case, it was error to grant a nonsuit, and under the allegations and proof the case should have been submitted to the jury for determination.

2. A 'cause of action having been set forth by the original petition, the striking of certain paragraphs of the amendment, as complained of in exceptions pendente lite, was harmless to the plaintiff.

Judgment reversed.

Stephens and Bell, JJ., concur.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    17520.
    Noles et al. v. Tulley.
    Courts, 15 C. J. p. 987rn. 61.
   Stephens, J.

1. As provided in section 3365 of the Civil Code (1910), as to the foreclosure of liens on real estate, a proceeding under section 3353, against the owners of real estate, to establish a lien thereon claimed under a contract between the plaintiff and the defendants for work done by the plaintiff in superintending the construction of a building on the real estate of the defendants, is a suit for the foreclosure of a lien upon real estate. Such a proceeding is within the jurisdiction of the municipal court of Atlanta,' as provided in section 29 of the act establishing that court (Ga. L. 1913, p. 115)’, which confers upon that court jurisdiction to “foreclose all liens of laborers, contractors, materialmen and other liens of a similar nature on real estate . . ”

2. A judgment rendered in such a proceeding, which declares a special lien in favor of the plaintiff upon the real estate, can not be set aside upon the ground that the municipal court of Atlanta has no jurisdiction to foreclose and declare a special lien upon real estate.

Decided December 20, 1926.

Petition for certiorari; from Fulton superior court — Judge Humphries. April 31, 1936.

Ray & Ray, for plaintiffs in error.

Douglas & Douglas, E. E. Andrews, contra.

3. The defendant’s motion to set aside the judgment in the municipal court of Atlanta having been overruled, and the judgment overruling the same having been affirmed by the appellate division of the municipal court, the judge of the superior court did not err in refusing to sanction a petition for certiorari, brought by the defendants, excepting to the judgment of the appellate division of the municipal court.

Judgment affirmed.

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


author: Jenkins, P. J.

text:
    17604.
    ATLANTA TITLE & TRUST COMPANY v. DAVIS.
    1. The defendant title company having certified to the plaintiff a clear title to the lot subsequently purchased by him, and it appearing that the owner of the adjoining lot had previously acquired by written reservation from the owner of the purchased lot an easement “over the north strip of said described premises, now a driveway,” cut off entirely from the lot purchased by the plaintiff, and there being evidence sustaining the verdict as to the amount of damage occasioned by such adverse easement, the verdict in favor of the plaintiff can not be disturbed. The previous owner of both of the lots having expressly reserved to the owner of the other lot an easement in the driveway as thus cut off, marked, and established, taken entirely from the lot subsequently certified by the defendant to the plaintiff as altogether clear, the defendant can not be absolved from liability to the plaintiff by showing that prior to the reservation of such outstanding ten-foot easement on the plaintiff’s property, the previous owner had conveyed to the owner of the other lot a lesser easement in a joint driveway to be taken, five feet from each of the lots.
    2. “Direct testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer in the article, but may testify as to value, if he has had an opportunity for forming a correct opinion.” Civil Code (1910), § 5875. “Primarily, the competency of the witness to testify as to market value is for the court.” Central Georgia Power Go. v. Cornwell, 139 Ga. 1, 5 (76 S. E. 387, Ann. Oas. 1914A, 880). “Where the value of the article is relevant, it may be shown by the opinion of witnesses, although they may not be experts, if they have knowledge of facts on which to predicate such opinion.” Bla

      ton v. Fowler, 124 Ga. 955 (2) (53 S. E. 567) ; Miller v. Luckey, 132 Ga. 581, 583 (64 S. E. 658). Tlie witnesses testifying to the decreased market value of the property on account of the defective title to ten feet of the fifty feet bargained for testified to their familiarity with the property in question, thus indicating that they had opportunity for forming a correct opinion; and the court did not err in admitting the testimony thus offered.

      Abstracts of Title, 1 O. J. p. 368, n. 58.
    Evidence, 22 C. J. p. 514, n. 17; p. 523, n. 93; p. 526, n. 11; p. 573, n. 33, 34; p. 575, n. 49; p. 576, n. 51, 62; p. 578, n. 82; p. 579, n. 84; p. 581, n. 97; p. 587, n. 79; p. 588, n. 84; p. 591, n. 5.
    Trial, 38 Oye. p. 1514, n. 40.

      Decided December 20, 1926.
    Complaint; from Fulton superior court — Judge Pomeroy. July 7, 1926.

      Candler, Thomson & Kirsch, for plaintiff in error.

      J. J. Barge, contra.
   Jenkins, P. J.

Davis sued the Atlanta Title & Trust Company for damages alleged to have been sustained by reason of the failure of the defendant to report an existing incumbrance by way of an easement on certain property purchased by Davis in the city of Atlanta. It appears that Davis employed the defendant to exam-: ine the title to the property prior to his purchase thereof; that he purchased the property from Mrs. Sallie J. Foote, who held an unrecorded deed from Aaron Tenenbaum, and that the deed from Tenenbaum to Mrs. Foote was delivered by her to Davis and turned over to the defendant by Davis for its use in examining the title. This deed conveying the property to Mrs. Foote contained the following reservation: “This conveyance is made subject to an easement which grantor herein reserves to himself and his assigns, over the north strip of said described premises, no.w a driveway, and to be used as such for purpose of entering north lot adjoining this.” Tenenbaum had originally owned both the lot in question and the one adjoining it on the north. On June 2, 1920, he sold the north lot to another purchaser, making the following reservation: “This conveyance is made subject to easement heretofore reserved over the south strip of said premises, now a driveway, to be used as such for the purpose of entering lot adjoining this lot on the south. A similar easement reserved on the lot adjoining this lot on the south of a strip same width as herein reserved, the two said strips adjoining and comprising said driveway, now clearly marked out, being one half off of above lot, and one half off of adjoining lot adjoining this on the south. Same to be used as to both lots perpetually on ingress and egress, as a driveway for the benefit of both lots.” It appears from the evidence that there was a fence between the two lots, and that the driveway as used was entirely on the lot bought by Dávis. The defendant certified the title to Davis, making no exception of the easement, but excepting all questions of survey, and prepared on its form a deed from Mrs. Foote to Davis to the lot purchased, making no reference to the easement. It is contended by the defendant that the deed from Tenenbaum to the purchaser of the north lot created an easement in favor of the lot purchased by Davis in a driveway to be used on both lots, and that the court should have construed both deeds and fixed the location of the driveway, as a matter of law, as provided for by the deed made by Tenenbaum to the purchaser of the north lot.

The evidence for the plaintiff fixes the damage by reason of the location of the driveway on the lot purchased, at $1,500; while the evidence'for the defendant fixes the damage at a smaller sum.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17631.
    WALKER v. SHEDDEN et al.

    1. Wlien “a person in good faith truthfully communicates to the solicitor-general all facts known to the former in relation to a criminal charge against another, and is advised that the facts as stated constitute an indictable offense, and such person becomes the prosecutor on an indictment prepared and submitted to the grand jury by such officer, he can not be held liable in damages for a malicious prosecution at the suit of the accused, even though on the trial under the indictment it appears that the facts as stated do not constitute a crime and that the defendant was not in fact- guilty of any offense.” Hides v. Brantley, 102 Qa. 264 (29 S. E. 459); Woodruff v. Doss, 20 Qa. App. 639 (93 S. E. 916).
    2. Where, however, on a trial for malicious prosecution the issue is not whether the undisputed facts communicated by the prosecutor to the solicitor-general constitute a crime, but where the sole contested issue relates to whether or not the communications as'made to the solicitor-general, on the faith of which his advice was given, were made by the prosecutor in good faith, as the true and correct facts of the transaction, it is error to direct a verdict for the defendant on the theory that the advice of the solicitor-general is conclusive on the question of good faith. Since it appears from the evidence of the defendants in the instant suit for malicious prosecution that the advice of the solicitor-general was given them in response to what they now testify was a full, fair, and correct statement of the facts as made by them to the solicitor-general, and since it appears that such version of the facts as now sworn to by the defendants in the instant suit is disputed by the testimony of the plaintiff, and that the version of'the facts as thus sworn to by the plaintiff is such as it would not have been altogether impossible for the jury to accept, it follows that the case should have been submitted to the jury, in order for them to determine whether the advice of the solicitor-general was procured fairly and in good faith, and if not, then whether the prosecution was in fact instituted maliciously and without probable cause.

      Malicious Prosecution, 38 C. J. p. 428, n. 40; p. 429, n. 42; p. 431, n. 69; p. 432, n. 88; p. 433, n. 5; p. 435, n. 21; p. 505, n. 32; p. 507, n. 40; p. 508, n. 51.

      Decided December 20, 1926.
    Action for malicious prosecution ; from city court of Newnan— Judge Stallings. July 38, 1936.

      S. H. Dyer, for plaintiff.

      Anderson, Rountree & Crenshaw, Hall & Jones, for defendants.
   Jenkins, P. J.

Walker sued Shedden and North for damages for an alleged malicious prosecution, alleging that Shedden swore out a warrant against him, charging him with larceny after trust, and that North conspired with Shedden in the prosecution, and “that he advised and consulted and helped with said prosecution maliciously to convict your petitioner.” The petition charges, that the prosecutioi v/as without probable cause, and that the petitioner was innocent of the charge brought against him; that after the issuance of the warrant he was arrested and incarcerated for two or three hours; that he was subsequently indicted for the offense charged in the warrant and tried by the superior court, and a verdict of not guilty returned in his favor by a jury. He alleged that the prosecution was malicious and was instituted for the purpose of injuring and damaging the plaintiff’s reputation in his community. The defendants answered, denying in substance the allegations of the petition and setting up that the prosecution was justified and was had under the advice of competent attorneys and of the solicitor-general of the Coweta circuit, who, after a full, fair, and complete statement of the facts, advised defendants that the facts related amounted to a violation of the criminal law, and that in carrying on such prosecution they acted in entire good faith, and that on the trial the plaintiff’s guilt was established by overwhelming evidence.

At the trial of the instant case the defendants assumed the burden of proof and introduced evidence showing that the plaintiff Walker was indebted to the defendant Shedden’s wife, whose tenant lie was, for certain supplies; that North, acting as agent for Mrs. Shedden, had received from the plaihtiff certain cotton warehouse receipts as collateral to the indebtedness; that North delivered the receipts to the plaintiff in order that he might sell the cotton and apply the proceeds to the indebtedness; that Walker sold the cotton and then informed North that he did not have enough money to pay his indebtedness to Mrs. Shedden in full, and offered to pay the balance in farm products, and that upon North’s refusal to accept the farm products in payment, Walker refused to turn over the proceeds of the cotton to North. Both North and Shedden testified that before taking out the warrant they conferred with attorneys, who advised them that the facts stated amounted to a violation of the law by Walker, and that after the issuance of the warrant, but before it was served by the sheriff, and before it was delivered to the sheriff for execution, they consulted the solicitor-general, giving him a full, fair, and complete statement of the facts, and that he advised that a prosecution for larceny after trust would lie. The testimony of the plaintiff Walker as to the transaction with North was substantially the same as that offered by the defendants, except that Walker testified that the cotton warehouse receipts were not deposited with North as collateral, but were simply placed with him for safe-keeping in the bank of which he was president; he further testified that both North and Shedden were “mad” with him.

At the conclusion of the evidence the court, on motion, directed a verdict for the defendants, and the plaintiff excepted.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    17635.
    BROOKS v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY.
    1. As between grantor and grantee, the strict rule of common law prevails, that, in the absence of either an intrinsic or an extrinsic agreement to the contrary, “all fixtures, whether actually or constructively annexed to the realty, pass by. a conveyance of the freehold.” Wolff v. Sampson,
      123 Ga. 400 (51 S. E. 335). “Machinery, such as planers, moulders, belting, shafting and the like, placed in and attached to a mill in order to cany out the obvious purpose for which it was erected, or to permanently increase its value for use as a manufacturing establishment, and not intended to be moved about from place to place but to be permanently used with the building, becomes a part of the realty, although such machinery may be removable without injury either to itself or the building.” Cunningham v. Cureton, 96 Ga. 489 (4) (23 S. E. 420). Under this rule a boiler incased in brick', an engine bolted to a brick foundation, and a gin with its equipment attached to the sills of the ginnery building, prima, facie become a part of the land, and, as between the grantor and grantee of the premises, in the absence of some agreement evidencing a contrary intent, would pass under a conveyance of the land. Power v. Garrison, 141 Ga. 429, 432 et seq. (81 S. E. 225). In the instant case, nothing being disclosed to indicate in any wise an intention to change the operation of the general rule, it was properly given effect, and the court did not err in directing a verdict in favor of the plaintiff. It was contended that under the ruling of the case of Smith v. Odom, 6,3 Ga. 499, quoted by the Supreme Court in Power v. Garrison, supra, p. 433, certain parts of the gin outfit were prima facie personalty, and that it was incumbent upon the plaintiff (as purchaser of the realty) to show a contrary intent. Since, however, most of the property sued for had manifestly become a part of the realty, the portions of the gin outfit referred to must be treated likewise, for, in the language of the decision in the Cunningham case, supra, it “was of a kind essential to the completeness of the.mill for the purpose for which it was built and was being operated,” and “could not properly be regarded, therefore, as machinery ‘movable at pleasure’ in the sense intended by the code.”

      Fixtures, 26 O. J. p. 654, n. 31; p. 664, n. 99; p. 665, n. 9; p. 669, n. 44; p. 670, n. 48; p. 720, n. 38; p. 721, n. 40, 41; p. 722, n. 54, 55; p. 727, n. 90, 91; p. 730, n. 11.
    Vendor and Purchaser, 3D Oye. p. 1805, n. 41; p. 1806, n. 42, 43.

      2. It is made to appear that at some time subsequent to the giving of the lien on the premises by the defendant to the plaintiff certain additional gin machinery, in some comparatively small quantity, was added to the plant by the defendant, and purchase-money notes were given for it, which the seller caused to be recorded, but that all the notes became satisfied prior to the public sale of the premises to the plaintiff. If the purchase-money notes remained outstanding and the contest was between their holder and the purchaser of the realty, the rule to be applied would be such as is indicated in the case of International Clay Machinery Co. v. Moultrie Banking Co., 34 Ga. App, 396 (129 S. E. 877) ; but where, as here, the contest is between the vendor and the vendee of the premises, that rule does not apply. ’ Nor can it be said that the addition of fixtures annexed to the realty after the giving of the lien on the land, and fully paid for prior to the sale thereof, throws any light upon the intention of the parties as to whether the lien or the sale thereunder was actually intended to include such fixtures as a part of the realty. Under the rule announced in Cimningham v. Cureton, supra, p. 492, if such additions were attached to and became a part of the realty, the sale of the realty “includes not only such fixtures as are attached to the realty at the time” the lien was executed, “but such as may be annexed subsequently.”
    Decided December 20, 1926.

      Trover; from Wilkes superior court — Judge Perryman. August 2, 1926.

      F. H. Colley, W. A. Slaton, for plaintiff in error.

      J. D. Bradwell, B. W. Fortson, contra.
   Jenkins, P. J.

John Hancock Mutual Life Insurance Company filed a suit in trover in Wilkes superior court against John E. Brooks, for the recovery of a steam-engine, boiler, and gin outfit. In December, 1917, Brooks borrowed money from John Hancock Mutual Life Insurance Company, giving a deed to the land to secure the debt, in which no reference was made to the machinery. This deed contained a power of sale, under the terms of which the property was sold in 1923 and purchased by the insurance company. No reference to the machinery was made in that deed. After the execution of the security deed, Brooks bought certain other equipment for the gin, giving his purchase-money notes therefor, which were duly recorded, but which were all paid off and discharged prior to the sale of the premises to the plaintiff. Brooks was living on the land at the time of the sale, and, upon removing therefrom, took up and carried away the machinery sued for. The judge directed a verdict in favor of the plaintiff, to which defendant excepted.

Judgment affirmed.

Stephens^ and Bell, JJ., concur.


author: Luke, J.

text:
    17534.
    EAST RIVER NATIONAL BANK v. ELLMAN.
    A petition for certiorari does not “plainly and distinctly sot forth the error eompained of,” where its only assignment of error is upon a judgment which affirms a judgment overruling a motion for a new trial, and where the grounds of the motion for a new trial are not set forth in the petition nor attached to it as an exhibit. For this reason it was proper for the judge of the superior court in this case to dismiss the petition for certiorari.
    Certiorari, 11 C. J. p. 150, n. 17; p. 151, n. 51; p. 153, n. 61.
    Decided January 11, 1927.
    Rehearing denied February 23, 1927.
    Certiorari; from'Eulton superior court — Judge E. D. Thomas. May 19, 1926.

      Little, Fowell, Smith & Goldstein, for plaintiff.

      Noah J. Stone, for defendant.
   Luke, J.

The bill of exceptions in this case assigns as error the dismissal of a certiorari upon motion of the defendant in certiorari, the motion being based upon alleged defects in the petition for certiorari. The merits of the case were not passed upon by the judge of the superior court and will not be considered by this court. The petition for certiorari shows that upon the trial of the case in the municipal court of Atlanta a verdict was directed for the defendant, and judgment thereon entered up, and that the plaintiff (who is also the plaintiff in the certiorari proceedings) made a motion for a new trial, which was overruled by the trial judge; that thereafter the plaintiff filed its appeal to the appellate division of the court, appealing from the order of the trial judge overruling its motion for a new trial; that the appellate division of the court affirmed the judgment of the trial court; and that judgment of the appellate division is assigned as error, and is the only assignment of error in the petition for certiorari. The petition, however, fails lo set forth, either literally or in substance, the grounds of the motion for a new trial, and they are not attached to the petition as an exhibit. The petition, therefore, was fatally defective, as the judge of the superior court, in the absence of the grounds of the motion for a new trial, could not adjudicate the question whether the appellate division of the court erred in affirming the judgment of the trial judge overruling the motion for a new trial; and as a petition for certiorari is not amendable, the judge of the superior court properly dismissed the petition, upon the timely and appropriate motion of the defendant in the certiorari proceedings. The plaintiff in certiorari did not “plainly and distinctly set forth the errors complained of” (italics ours), a's is required by section 5183 of the Civil Code of 1910.

Judgment affirmed.

Broyles, G. J., concurs. Bloodworth,, J., absent on account of illness.


author: Brotles, C. J.

text:
    17677.
    JONES v. THE STATE.
    A conviction on the charge of having had possession and control of intoxicating liquor was authorized by the evidence.
    Decided January 11, 1927.
    Intoxicating Liquors, 33 O. J. p. 757, n. 71, 74; p. 701, ri. 53; p. 702, n. 55, 61.

      Possessing liquor; from city court of Greenville — Judge Bevill. September 3, 1936.
    From the evidence it appeared that the defendant was discovered standing alone in a ditch watching a still in operation at which whisky was being made, and that when he saw that he had been discovered he ran off. Several gallons of whisky and a barrel of beer were found at the same place. It Was about 300 yards from the defendant’s home and nearer to the homes of some other persons. A man on a hill “across from the still” was cutting wood. There was fresh wood on the fire at the still, and just before it was discovered smoke was seen ascending from it in puffs as if the fire had just been rebuilt or wood put on it. The defendant in his statement at the trial said that he saw the smoke and walked down to see what it was, and when he got near the still he heard some one holler “halt,” or “stop,” and he ran because he did not know who it was, and thought it might be the one who was running the still; that he did not know anything about the still or the whisky and had no interest in it.

      Jones & Jones, for plaintiff in error.

      J. F. Hatchett, solicitor, contra.
   Brotles, C. J.

1. In the light of the notes of the trial judge, as set forth in his order approving the grounds of the amendment to the motion for a new trial, the first two grounds are without merit; the remaining ground is merely an elaboration of the general grounds of the motion for a new trial.

3. The evidence connecting the accused with the offense charged, while wholly circumstantial, was sufficient to authorize the jury to find that it excluded every reasonable hypothesis save that of his guilt. See, in this connection, Yonce v. State, 154 Ga. 419 (114 S. E. 325), 29 Ga. App. 173 (114 S. E. 584), and cit.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


author: Broyles, C. J.

text:
    17707.
    Beard v. The State.
    Decided January 11, 1927.
    Blackmail; from Floyd superior court — Judge Maddox. September 27, 1926.

      Harris & Harris, for plaintiff in'error.

      J. F. Kelly, solicilor-general, contra.
    Extortion, 25 C. J. p. 239, n. 97; p. 241, n. 42.
    Indictment and Information, 31 G. J. p. 708, n. 28; p. 720, n. 55.•
    Threats, 38 Cyc. p. 296, n. 71.
   Broyles, C. J.

1. The defendant was indicted, under section 118 of the Penal Code of 1910, f.or the offense of blackmail. The indictment charged the offense substantially in the language of-the statute, and the overruling of the demurrer was not error.

2. The indictment charged that the accused did “verbally accuse George Clements with the crime of having sexual intercourse with [a named woman], and did compel the said George Clements, against his will, to give him ten dollars in money and of the value of ten dollars, all being done by the said M. S. Beard [the accused] with the intent to extort money and other thing of value from the said George Clements against his will, and the said M. S. Beard did then and there unlawfully, wrongfully, and fraudulenty extort ten dollars in money and of the value of ten dollars from the said George Clements.” Upon the trial the evidence failed to support the charge in the indictment that the defendant verbally accused George Clements of the crime of having sexual intercourse with the woman named. Clements, the prosecuting witness, testified that the defendant made no such accusation, and no other witness testified to the contrary. It follows that there was a fatal variance between the indictment and the proof, and that the defendant’s conviction was contrary to law.

Judgment reversed.

Luke, J., concurs. Bloodtoorlh, J., absent on account of illness.


text:
    17708.
    SIMS v. THE STATE.
    The testimony as to what was said in conversation between the accused and his wife was admissible against him.
    The testimony as to statements made by the accused after his arrest was admissible.
    The evidence authorized the verdict.
    Decided January 11, 1927.
    Criminal Law, 17 C. J. p. 255, n. 53; p„ 270, n. 16; p. 358, n. 52.
    Witnesses, 40 Cyc. p. 2377, n. 98.

      Burglary; from Butts superior court — Judge Persons. October. 16, 1936.

      T. J. Ripley, for plaintiff in error.

      Frank B. Willingham, solicitor-general, contra.
   Luke, J.

1. The accused was convicted of burglary. The •first ground of the amendment to the motion for a new trial is as follows: “ On the trial of said ease the court erred in admitting the following evidence over the objection- of movant’s attorney, to wit, L. P. Higgins testified for the State, ‘My partner and myself and Mrs. Sims went to the home of the defendant, Bobert Sims, the man on trial, and arrested him. As to why I was arresting him, I told the defendant that his wife came down to the police station and told me that she was tired of living with him, and they had broke into a place here (Jackson, Ga.) and several places and stole gold, and she would go and sell it, and he would make her bring the .money back to him, and she didn’t get her share out of it, and said that she wanted to go and arrest him, and she was willing to take what punishment was put on her, that she was sick of it, that she was equally guilty with him, but that she was willing to go to the penitentiary, as he wouldn’t work.’ His statement then was that he looked at her and said, ‘Lucile, what in the world did you do this for?’ and she said, ‘Well, they have got me too,’ and he said, ‘Well, I never would have thought that you would ever have done this;’ so he got in the Ford and started to police station with them, and he was sitting next to her. He says, ‘I wouldn’t have thought that of you. What do you mean, after we have been living together two years and you turn me up this time?’ So we come on down to police station, and this fellow here, I was talking to him a day or two after that, he says,. ‘Well, you won’t be able to convict me, because there is nobody to swear against me except my wife.’ And he says, ‘She can’t swear against me or for me; and besides, I have been to Milledgeville and I am crazy, and they won’t do nothing with me.’ ” (The ground sets out the reasons why this evidence was inadmissible and should have been rejected.) The court did not err in admitting the testimony. It was admissible, as being a conversation between husband and wife which was heard by a third person. “A conversation between husband and wife, though intended to be confidential, may, whenever relevant, be proven by one who overheard it.” Knight v. State, 114 Ga. 48 (39 S. E. 928, 88 Am. St. R. 17); Williams v. State, 139 Ga. 591 (77 S. E. 818); Nunn v. State, 143 Ga. 451 (85 S. E. 346).

2. The sheriffs testimony (objected to in the 2d special ground of the motion) as to statements made to him by the accused was relevant to the issue involved, and admissible for what probative value it might have. Portions of it were favorable to the accused and pointed to his innocence of the crime charged.

3. The 3d special ground of the motion, pertaining to the defendant’s sanity, is without merit. As therein stated it is but an enlargement upon the general grounds. The record shows that “the defendant was introduced by physical profert,” and, this being true, the jury had an opportunity, from seeing him and hearing the evidence adduced, to pass upon the question of his sanity.

4. The evidence was sufficient to convict, and the record discloses no reversible error of law.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17710.
    PENCE v. THE STATE.
    1. “One who waives liis right to be tried upon an indictment perfect' in form as well as substance, and takes his chances of acquittal, will not be heard, after conviction, to urge defects in the indictment, unless these defects are so great that the accusation is absolutely void.”
    2. The indictment for perjury was not fatally defective, and the court properly overruled the motion in arrest of judgment.
    Criminal Law, 16 C. J. p. 1256, n. 95.
    Indictment and Information, 31 C. J. p. 799, n. 99; p. 871, n. 31.
    Perjury, 30 Cyc. p. 1434, n. 62; p. 1435, n. 63.
    Decided January 11, 1927.
    Rehearing denied February 23, 1927.
    Perjury; from Walker superior court' — -Judge Maddox. October 1, 1926.

      Norman Shattuck, for plaintiff in error.

      J. F. Kelly, solicitor-general, M. N. Andrews, Rosser & Shaw, contra.
   Luke, J.

The defendant, Will Pence, was convicted of perjury. He made a motion in arrest of judgment, and an amendment to it, alleging that the indictment and the verdict and sentence based thereon are void because the indictment “is fatally defective and void and charges no offense under the law,” and “does not specifically allege how and wherein the testimony upon which the perjury is assigned was material to the issue in the trial in which the alleged false testimony was delivered, neither does it allege what was the issue before the said justice court, nor how the same was raised, and that the said defect was such a defect as appeared on the face of the record.” The indictment, omitting formal parts, is as follows: The grand jurors “charge and accuse Will Pence of the county and State aforesaid with the offense of felony, for that the said Will Pence, on the 20th day of February, in the year of our Lord nineteen hundred and twenty-six, in the county aforesaid, did wilfully, knowingly, absolutely, and falsely swear, both with and without laying his hand on the holy evangelist of almighty God, and in like manner did affirm, in a matter material to the issue and point in question, a lawful oath and affirmation having then and there been administered to him by M. P. Orr, justice of the peace of the 943d district G. M. of said Walker county, who then and there had power and authority to administer an oath, in a certain judicial proceeding in the justice court of said M. P. Orr, justice of the peace as aforesaid, which court then and there had jurisdiction to hear and determine said issue then before said court, the issue then and there being raised by suit of W. H. Davis & Son on a certain promissory note dated January 1, 1921, and signed by Will Pence, the said Will Pence then and there wilfully, knowingly, absolutely, and falsely did swear as follows: did not sign that note; that is not my signature; I never saw that note before/ when in truth and in fact said Will Pence did sign said note, it is and was his signature on said note, and he had seen said note before. And so the grand jurors aforesaid, upon their oaths aforesaid, do say that the said Will Pence did then and there commit wilful perjury.” This indictment clearly shows that the defendant was being sued on a note in the justice’s court, and swore that he did not sign the note. Considering the indictment as a whole, the materiality of the alleged false testimony, to the issue before the justice of the peace is clearly apparent. Herndon v. State, 17 Ga. App. 558 (87 S. E. 812). Where the indictment shows that the defendant was sued on a note and lie swore that he did not sign the noté and had never seen it, there is only one reasonable and logical conclusion to reach as to the materiality of the testimony. Even conceding that the indictment was defective, it certainly was not fatally defective, and “one who waives his right to be tried upon an indictment perfect in form as well as substance, and takes Ms chances of acquittal, will not be heard, after conviction, to urge defects in the indictment, 'unless these defects are so great that the accusation is absolutely void.” Lanier v. State, 5 Ga. App. 472 (63 S. E. 536). The court properly overruled the'motion in arrest of judgment.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17709.
    PENCE v. THE STATE.
    A conviction of perjury was warranted by tlie evidence, which authorized a finding that the accused, in the trial of a suit against him in a justice’s court, upon a promissory note purporting to have been signed by him, wilfully testified falsely that he did not sign the note and had never before seen it. It is immaterial in the instant case whether a written plea of non est factum was filed in the justice’s court.
    The court did not err in giving in charge section 1017 of the Penal Code (1910) as to the number of witnesses necessary .to convict of perjury and certain other offenses, although a part of the section was not applicable to the case. The court gave additional instructions on this subject which were perfectly fair to the defendant.
    Perjury, 30 Oye. p. 1449, n. 69; p. 1450, n. 78.
    Decided January 11, 1927.
    Rehearing denied February 23, 1927.
    Perjury; from Walker superior court — Judge Maddox. October 1, 1926.

      Norman Shattuck, for plaintiff in error.

      J. F. Kelly, solicitor-general, M. N. Andrews, Rosser & Shaw, contra.
   Luke, J.

The defendant was convicted of perjury. He excepts to the judgment overruling his motion for a new trial. The evidence shows that he was being sued in a justice’s court, on a note signed by him. The case came on for trial in that court, and the defendant, after being sworn “to tell the truth, the whole truth, and nothing but the truth in that case,” stated under oath and in the trial óf that case that he did not sign the note and never saw it before. There was ample evidence that he did sign the note, and that his sworn testimony to the contrary was false. The testimony given by him was on a material issue in the case on trial, it relating to his signature to the note on which the suit was based. A careful study of the record shows that the evidence was sufficient to authorize the jury to find that he wilfully testified falsely, under oath, in a judicial proceeding, on an issue material to the cause under investigation, which testimony was given with intent to conceal the truth; and that such testimony could have influenced (whether it did or not) the decision of the court on a material issue in the case.

The court did not err, as alleged in ground 4 of the motion for a new trial, in giving in charge section 1017 of the Penal Code, pertaining to the number of witnesses necessary to convict. Parts of that section are not applicable to the case under consideration, but it would have been impracticable and improper to eliminate the part which was inapplicable. The court properly gave the whole section in charge and stated to the jury that parts of the section were inapplicable. Furthermore, reference to the charge shows that the judge was perfectly fair to the defendant in charging on the evidence necessary to convict. He instructed the jury: “Before you could convict in this case, there must be two witnesses that swear to the material parts of the indictment. You can not convict upon the testimony of one witness alone. It must be two or' more. . . The intent to testify falsely and the falsity of the testimony must both appear to authorize a conviction of perjury. In every case of perjury it is essential to a conviction that it should be proved beyond a reasonable doubt that a false oath was knowingly and wilfully taken.”

The charge of the court was sufficiently full and fair to withstand the attack made upon it in grounds 5, 6, 7, and 8 of the motion for a new trial.

Grounds 9, 10, and 11 of the motion are but elaborations of the general grounds, and are without merit. On the issue involved in the instant case it is immaterial whether or not the defendant filed a written plea in the justice’s court case in which he is alleged to have sworn falsely. Ordinarily no defense is required to be filed in writing in a suit on a note in a justice’s court. Montgomery v. Fouché, 125 Ga. 43, 45 (52 S. E. 757), and eit. The defendant appeared and went into the trial of that case. The justice swore that the case was docketed, that “that case came on for trial,” that he (the J. P.) was presiding in the case, and that the defendant was a witness in his own behalf, and was duly sworn. -Unquestionably the evidence showed a judicial proceeding.

The evidence authorized the verdict, no reversible error of law appears, and the court properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, G. J., concurs. Bloodivorth, J., absent on account of illness.


author: Bkoyles, O. J.

text:
    17711.
    King v. The State.
    Decided January 11, 1927.
    Cheating and swindling; from city court of Washington — Judge Sutton. September 15, 1926.

      Hugh H. Combs, for plaintiff in error.

      Charles H. Calhoun, solicitor, contra.
    Criminal Law, 16 C. J. p. 747, n. 47.
    Master and Servant, 39 C. J. n. 143, n. 34.
   Bkoyles, O. J.

The defendant was convicted of violating the “labor-contract act” (Ga. L. 1903, p. 90; Penal Code, §§ 715, 716). It not having been proved upon the trial that he had no good and sufficient cause for his failure to perform the contract, his conviction was unauthorized. This essential proof was not furnished by the hirer’s testimony that the defendant “had no reason not to work for me so far as I know. . . I did not give him any reason not to come; . . he did not have any reason not to come to work for me, as far as I know.” This testimony amounted to no more than an opinion or conclusion of the hirer, without proof of facts to support it. Durham v. State, 17 Ga. App. 810 (88 S. E. 594), and citations.

Judgment reversed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17712.
    Ware v. The State.
    Intoxicating Liquors, 33 C. J. p. 761, n. 53; p. 762, n. 55.
   Luke, J.

On circumstantial evidence the accused was convicted of unlawfully possessing intoxicating liquors. The evidence did not exclude every reasonable hypothesis save that of the guilt of the accused, and the court, therefore, erred in overruling the motion for a new trial.

Decided January 11, 1927.

Possessing liquor; from city court of. Washington — Judge Sutton. September 25, 1926.

Ware lived “on the edge of Washington, on Dr. Will Hill’s place.” Officers who searched his house found no whisky, but found two or three spoonfuls of whisky in a fruit jar “at the side of the yard, in a post-hole,” and found five or six'pints of whisky, halfway covered with grass, across the road, in a field, about seventy-five yards from his house, and tracks leading from his house to where the whisky was found. There are other houses and a store not far from his house and on the other side of the road from it, and houses back in the field. “There was evidence of considerable travel going to his house.” In his statement at the trial he said that he did not know anything about the whisky.

Hugh E. Combs, for plaintiff in error.

Charles H. Calhoun, solicitor, contra.

Judgment reversed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17713.
    YOUNG v. THE STATE.
    The finding of whisky in and near the house in which the defendant resided with others, under the circumstances shown by the evidence, authorized his conviction of having whisky in his possession.
    Decided January 11, 1927.
    Certiorari; from Putnam superior court — Judge Park. October 16, 1926.
    Young was convicted on the charge of possessing intoxicating liquor. From the evidence it appeared that he lived in a three-room house in a city, and rented one room to a man who used it as a bedroom for himself and his niece. There' was a door between this room and the defendant’s bedroom, and the latter room' opened into a third room, a kitchen. An officer searching the premises found in the defendant’s bedroom two tin cans, one smelling of whisky and the other containing about one drink of whisky, and found in weeds, about one step from the back door of that room, a jar containing about a pint of whisky, and in a woodhouse, about three steps from the front door of that room, a jar of whisky covered with wood. The defendant was at the house when the search was made. The other occhpants were absent, and in their testimony denied ownership or knowledge of the liquor, and stated that they worked elsewhere in the daytime. The defendant, in his statement at the trial, said that he did not know anything about the whisky and did not know that the cans found in his room were there; that he worked at night in a cotton mill and slept in the daytime, and was the only one in the house on the day of the finding of the liquor.

      Intoxicating Liquors, 33 O. J. p. 761, n. 53; p. 762, n. 55.

      Meriwether F. Adams, for plaintiff in error.

      Joseph B. Dulce, solicitor-general, contra.
   Broyles, C. J.

The evidence in this case, as set forth in the untraversed answer to the certiorari, authorized the trial judge, sitting without the intervention of a jury, to find that it excluded every reasonable hypothesis save that of the defendant’s guilt. The particular facts of this case clearly distinguish it from that of Toney v. State, 30 Ga. App. 61 (116 S. E. 550), cited by counsel for the plaintiif in error. The overruling of the certiorari was not error.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17715.
    Williamson v. The State.
    Decided January 11, 1927.
    Criminal Law, 17 C. J. ,p. 212, n. 18; p. 293, n. 48.
   Broyles, C. J.

1. Under the particular facts of the case, as disclosed by the motion for a new trial, it does not appear that the alleged error of the judge, if error, in ruling that a named juror was competent and qualified to serve on the jury, was harmful to the defendant’s cause, this juror having been stricken by the defendant before the challenge to the jui’or was made, and it not definitely appeai-ing from the motion for a new trial that the defendant exhausted all the strikes he was entitled to.

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

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.

Possessing liquor; from city court of Blackshear — Judge Crawley presiding. October 2, 1926.

James R. Thomas & Sons, for plaintiff in error.

S. Thomas Memory, solicitor, contra.


text:
    17716.
    Hunter et al v. Garmany et al.

    Decided January 11, 1927.
    Complaint on bond; from Walker superior court — Judge Maddox, August 26, 1926.

      David F. Pope, M. B. Eubanks, for plaintiffs.

      Rosser & Shaw, for defendants.
    Election of Remedies, 20 O. J. p. 17, n. 15.
    Sheriffs and Constables, 35 Cyc. p. 1676, n. 86 New.
   Broyles, C. J.

1. Where property levied on has been released on a forthcoming bond and is not produced on the day of sale, the plaintiff in fi. fa. has two remedies. He can proceed directly against the sheriff by an action on the case or by rule; or he can bring suit upon the forthcoming bond, either in his own name or in the name of the sheriff for his use, provided that he has ratified the action of the sheriff in accepting the bond where it was taken without the consent of the plaintiff in fi. fa. These two remedies are inconsistent, and where the plaintiff in fi. fa. elects to sue on the forthcoming bond, and the suit results in a verdict and judgment against him, he can not subsequently bring an action against the sheriff, either on that officer’s official bond or by rule. Bacon v. Moody, 117 Ga. 207 (43 S. E. 482); Hand v. Brown, 144 Ga. 272, 274 (86 S. E. 1080).

2. Although the sheriff may have accepted the forthcoming bond and released the property without the consent of the plaintiff in fi. fa., yet where the plaintiff in fi. fa. elects to sue upon that bond, his action in bringing the suit amounts to a ratification of the sheriff’s act in releasing the property upon the bond, and he can not thereafter maintain a suit against the sheriff. Hand v. Brown, supra.

(a) This ruling is not affected by the fact that in the instant case the sheriff, subsequent to the release of the property on the forthcoming bond, took, without the consent of the plaintiff in fi. fa., another forthcoming bond (for the same property and signed by different sureties), as a substitute for the first bond, and that no suit upon this second bond was ever brought.

3. This was a suit upon a sheriff’s official bond, and under the above-stated rulings the court did not err in directing a verdict for the defendants; and no error appears in the rulings upon the admissibility of evidence.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17717.
    BLAND v. WALLACE.
    1. The evidence sustains the verdict.
    2. The judge charged the jury on the subject of fraud, and the exception based on alleged failure so to charge is groundless.
    3. There being no evidence that the automobile in question was entirely worthless, the court was not required to charge on total failure of consideration.
    4. There being no evidence to show how much less the automobile was worth by reason of the alleged defects, the court did not err in failing to charge on partial failure of consideration.
    5. A ground of a motion for a new trial must be complete within itself, and an assignment that the court erred in' expressing an opinion in a colloquy with counsel as to the admission of evidence is defective if it does not set out what fact the court intimated had been proved, or that the intimation was unfavorable to the movant.
    6. Where error is assigned upon the admission of evidence, it must appear that a valid and timely objection was made on the trial.
    Appeal and Error, 3 O. J. p. 967, n. 40 New; 4 C. J. p. 70, n. 90, 91; p. 859, n. 7.
    Bills and Notes, 8 O. J. p. 1077, n. 42.
    Trial, 38 Oye. p. 1618, n. 35.
    Decided January 11, 1927.
    Complaint; from city court of Metter — J. L. Brown, judge pro hac vice. October 14, 1926.

      Kirlcland & Kirkland, for plaintiff in error.

      Anderson & Trapnell, contra.
   Luke, J.

H. C. Wallace (hereinafter referred to as the plaintiff) sued J. C. Bland (hereinafter called the defendant) on a $250 check given in part payment for a Dodge automobile. The defendant admitted the execution of the check and that the plaintiff was the legal holder thereof, and assumed the burden of proof.

In view of the stipulations in the retention-of-title contract under which the automobile was bought, that it “constituted the full and complete terms of the sale,” and that the defendant had “examined same, and accepted it in its present condition,” and of the further fact that it appears from the record that the “court excluded all evidence of parol, agreements made prior to the execution of the contract, tending to change the terms of the written contract,” there were really only two tenable defenses made by the evidence, i. e., that the defendant was induced by fraud to buy the automobile, and that the sale was subsequently rescinded, by agreement. Though conflicting, the' evidence warranted the jury in finding that there was no fraud and no rescission; and there is no merit in the general grounds of the motion for a new trial.

Since it appears from the record that the court did charge upon the subject of fraud, there is no merit in the assignment that he did not do so. Moreover, the ground óf the motion for a new trial complaining of such failure to charge, is not complete and understandable within itself.

There being no evidence in the record to show that the automobile was entirely worthless, the court was not required to charge on total failure of consideration. Hornsby v. Butts, 85 Ga. 694 (11 S. E. 846).

There being no evidence to show how much less the automobile was worth by reason of the alleged defects, the court did not err in failing to charge on partial failure of consideration. Hornsby v. Butts, supra.

Complaint is made that “the court did express an opinion in the presence of the jury, which is contrary- to law,” in saying to the attorney for the defendant, “I do not know whether this letter is admissible, just the letter itself or not; I think the letter would be admissible to show you that Mr. Wallace did not get anything from this Finance Company, or not. I will let the letter go in.” The ground alleges that “this was error for the reason the defendant contended that the plaintiff had received the Dodge car in question, the check for $250 sued on, and one Ford car valued at $150, and the letter that the court admitted in evidence was a letter from Motors Finance Company to H. C. Wallace, H. C. Wallace being the agent of Motors Finance Company or the Motors Finance Company being the ones that purchased the notes of defendant from H. C. Wallace.” “A ground of a motion for a new trial must' be complete within itself, and the assignment of error is defective in failing to allege what fact the court intimated had been proved, or that the intimation was unfavorable to the movant.” Jackson v. Blitch-Everett Co., 32 Ga. App. 192 (122 S. E. 829). Moreover, it can not be concluded from the assignment'that any opinion was expressed.

The next, and last, ground of the motion follows: “Because the court erred in admitting in evidence, over timely objections, the following letter: ‘Mr. Wallace. . . Dear sir: Referring to telephone conversation of this morning, we are enclosing herein note and conditional-sale contract signed by J. C. Bland, and we wish to advise that the amount still open on this account is $149.86, 'plus court expenses and interest. Yours very truly, Motors Finance Corporation.’ This was error for the reason only letters and replies are admissible in evidence, and this was a letter from Motors Finance Corporation, of Savannah, to Mr. H. C. Wallace, Metter, G-a.” This ground is of no avail for the following reasons: (1) It does not appear that the objection now urged to the létter was presented to the trial court at the time the ruling was made. Soell v. State, 4 Ga. App. 337 (2 b) (61 S. E. 514). (2) If such objection had been made in the lower court, it would not be sufficiently specific and intelligible to present any question for determination. (3) The objection that “only letters and replies are admissible in evidence” is intrinsically not sound.

Judgment affirmed.

Broyles, O. J., concurs. Bloodworih, J., absent on account of illness.


text:
    17719.
    Durrence v. The State.
    Decided January 11, 1927.
    Possessing liquor; from city court of Baxley — Judge Speer. September 4, 1926.

      H. H. Elders, J. B. Moore, for plaintiff in error.

      Wade H. Watson, solicitor, contra.
    Criminal Law, 16 C. J. p. 1230, n. 73.
   Luke, J.

1. As regards the alleged newly discovered evidence, the affidavits of both the defendant and his counsel fail to state that the evidence could not, by the exercise of ordinary diligence, have been discovered by them before the verdict. The court, therefore, had the discretion to overrule that ground of the motion for a new trial.

2. The verdict was amply authorized by the evidence.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17720.
    HALL v. THE STATE.
    The evidence as to the killing of the heifer by the accused, by striking it with the automobile which he was driving, authorized a finding that the killing was malicious.
    In the absence of an appropriate written request to charge, the judge was not required to charge the jury more fully than he did as to the contentions of the accused.
    Animals, 3 C. J. p. 73, n. 28, 30; p. 74, n. 41.
    Criminal Law, 16 C. J. p. 1059, n. 42; p. 1061, n. 61.
    Decided January 11, 1927.
    Cruelty to animal; from city court of Baxley — Judge Speer.September 4, 1926.

      J. B. Moore, for plaintiff in error.

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

The defendant was convicted of maliciously killing a heifer cow. He assigns error on the judgment overruling his motion for a new trial. There was ample evidence to show that the defendant, while under the influence. of intoxicating liquor, was driving a Ford car “about as fast as it could run,” with flve other boys in the car, “all whooping and hollering,” and that while so driving he purposely turned out of the road about six feet and struck the heifer, and did not stop to see if the calf was killed 'or was suffering, or to make explanation of his act or reparation therefor. The evidence showed also that while so driving he came near to killing a little girl. His recklessness and maliciousness is shown throughout the State’s testimony, and especially by the following evidence: “Before they got to this cow they were coming as hard as they could, and they had done passed me about a hundred yards, and just before they got to me I snatched Mr. Cooper’s little girl out of the road, and I told them about it, and they said they would not have give a damn if they had killed her. . . He (the defendant) said he didn’t care if he had killed the child.” This evidence shows the'maliciousness and the viciousness of the defendant on the occasion' on- which the heifer cow was killed. It is perfectly apparent from the evidence that the jury properly found that the defendant killed the heifer purposely.

The motion' for a new trial alleges in substance that the court erred in failing to state, to the jury the defendant’s contention that the killing was unavoidable, unintentional, and accidental. The court charged the jury in part as follows: “The defendant is'on trial charged with maliciously maiming and killing one certain heifer. . : It is necessary for the State to show all the material facts or all the material allegations in the accusation. . . If any person shall maliciously maim or kill any horse or cattle, or shall maliciously maim or kill a hog, he shall be guilty of a misdemeanor. . . You will look to the evidence and see whether or not the defendant killed this heifer in the manner alleged, whether he did it maliciously. . . If you do not find the State has maintained the material allegations in the accusation, it would be your duty to acquit the defendant.” In the absence of an appropriate written request for a fuller charge in reference to the defendant’s contention, the instructions of the judge were sufficient. The evidence amply authorized the conviction, and the motion for a new trial was properly overruled.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17726.
    Gober v. The State.
    Decided January 11, 1927.
    Certiorari; from Fulton superior court — Judge Howard. September 17, 1926.

      II. A. Allen, for plaintiff in error.

      Éoy Dorsey, solicitor, John A. Boylcin, solicitor-general, J. IF. LeCraw, contra.
    Criminal Law, 17 C. J. p. 255, n. 53.
   Broyles, C. J.

In view of the evidence contained in the petition for certiorari and the additional evidence set forth in the answer of the trial judge, the verdict in this case was authorized, and the overruling of the certiorari was not error.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17727.
    Green v. The State.
    Decided January 11, 1927.
    Certiorari; from Fulton superior court — Judge Howard. September 22, 1926.
    On or about October 20, 1925, the time alleged in the accusation, police officers Brooks and McCrary and deputy sheriff Schillings went to the store of Green, the defendant, at -366 Decatur street in the city of Atlanta, in search of whisky, but did not see the defendant with whisky and did not find any in the store. Brooks testified that when he entered the front door the defendant was coming through the middle door and turned toward a stove which had fire in it, and he could not see what the defendant did, but something exploded in the stove and it smelt like corn whisky. McCrary testified that after the explosion he found' in the stove the neck of a half-pint bottle with a cork in it, and smelt the odor of whisky. Schillings testified that he found a pint and a half of whisky in a quart bottle in a locked toilet in the rear of the defendant’s place of business; that there were two other toilets side by side with this one and nearer to the deféndant’s place of business ; the witness did not know which one was the defendant’s, but the defendant said that the middle one was his, and no whisky was found in that one; the lock of the one in which the whisky was found was knocked off by the witness, and he fitted to it a key obtained from the defendant, and which fitted the middle toilet also; the witness did not know whether the toilet in which he found the whisky was a part of the defendant’s premises; .his store was in a building occupied by other persons. A witness testified that he lived in the basement of the building, that the second toilet was the defendant’s, and that the third (in which the liquor was found) was used by people in a restaurant in the same building. The defendant denied that he threw whisky in the stove, and denied that the whisky found in the toilet was his.

      Criminal Law, 16 C. J. p. 586, n. 98; p. 588, n. 5, 6; p. 764, n. 54.
    Intoxicating Liquors, 33 C. J. p. 762, n. 55.
   Luke, J.

1. “The general rule is, that, on a prosecution for a particular crime, evidence which'in any manner shows or tends to show that the accused has committed another crime wholly independent from that for which he is on trial, even though it he a crime of the same sort, is irrelevant and inadmissible.” (Italics ours.) Booth v. State, 160 Ga. 271, 275-6 (127 S. E. 333). While there are a few exceptions to this general rule, as stated in the above-cited ease, “these exceptions ought to be carefully limited and guarded by the courts,” and, under all the facts of this case, the evidence of similar crimes, which was admitted over the objection of the defendant, did not come within the exceptions to the general rule.

2. The defendant was charged with illegally possessing “one quart of corn whisky in a bottle, at 366 Decatur street, in the City of Atlanta.” The evidence legally admitted in support of this charge was wholly circumstantial, and did not exclude every reasonable hypothesis save that of the guilt of the accused. See Kennedy v. State, 23 Ga. App. 141 (97 S. E. 894).

3. The judge of the superior court erred in overruling the certiorari.

Judgment reversed.

Broyles, C. J., coneurs. Bloodworth, J., absent on account of illness.

Over objection of the defendant, McCrary was permitted to testify that on September 28, 1925, whisky was found in a gutter, under some paper, outside the building mentioned above, and that on different occasions whisky was found around there in garbage cans; also that on August 25, 1925, liquor was found stored-at the defendant’s residence, No. 49 Biggers street. It was stated that accusation as to the storing of the liquor at the place last mentioned had been disposed of “by way of a plea.”

C. G. Battle, for plaintiff in error.

Roy Dorsey, solicitor, John A. Boykin, solicitor-general, J. W. LeCraw, contra.


author: Broyles, O. J.

text:
    17728.
    Morris v. The State.
    Criminal Law, 16 C. J. p. 1199, n. 56; p. 1202, n. 70; p. 1230, n. 65, 66; 17 Q. J. p. -89, n. 65; p. 255, n. 53.
   Broyles, O. J.

1. Grounds 1, 2, and 3 of the amendment to the motion for a new trial, complaining of the admission of certain evidence, do not raise any question for determination, since it is not stated in any of those grounds what objections were made to the evidence at the time it was offered, nor does it appear that any motion to rule it out was made. Langston v. State, 153 Ga. 127 (1) (111 S. E. 561), and citations; Milliken v. State, 34 Ga. App. 596 (130 S. E. 347).

2. The excerpt from the charge of the court excepted to was not error for any reason assigned.

3. The alleged newly discovered evidence is cumulative and impeaching in its character. Furthermore, the affidavits in support of the witnesses upon whose alleged newly discovered evidence a new trial is sought are defective, in that they fail to give the residence of -the witnesses or the names of their associates. Crosby v. State, 34 Ga. App. 235 (1) (128 S. E. 817); Brice v. State, 34 Ga. App. 240 (1) (129 S. E. 665); Ivey v. State, 154 Ga. 63 (6) (113 S. E. 175). It follows that the court did not err in overruling the ground of the motion for a new trial based upon the alleged newly discovered evidence.

Decided January 11, 1927.

Assault with intent to murder; from Fulton superior court— Judge Pomeroy. October 7, 1926.

J. Mallory Hunt, for plaintiff in error.

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

4. The remaining special ground of the motion for a new trial is without merit.

5. The verdict was amply authorized by the evidence.

Judgment- affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17729.
    Jordan v. The State.
    Decided January 11, 1927.
    Rehearing denied February 23, 1927.
    Larceny of hog; from Colquitt superior court — Judge W. E. Thomas. October 15, 1926.

      James L. Dowling, for plaintiff in error.

      Clifford E. Hay, solicitor-general, contra.
    Criminal Law, 17 C. J. p. 249, n. 3; p. 264, n. 89.
   Broyles, C. J.

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

.Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17730.
    Kendrick v. The State.
    Decided January 11, 1927.
    Rehearing denied February 23, 1927.
    Criminal Law, 17 C. J. p. 249, n. 3; p. 255, n. 53.
    Intoxicating Liquors, 33 C. J. p, 580, n. 15; p. 758, n. 83.
   Luke, J.

The defendant’s conviction of knowingly permitting distilling apparatus to be located on his premises was authorized by the evidence; no error of law was committed on the trial; and the motion for a new trial, based on the general grounds only, was properly overruled.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.

' Distilling apparatus on premises; from Colquitt superior court— Judge W. E. Thomas. October 25, 1926.

James L. Dowling, for plaintiff in error.

Clifford E. Hay, solicitor-general, contra.


text:
    17731.
    Radney v. The State.
    Decided January 11, 1927.
    Possessing intoxicating liquor; from Colquitt superior court— Judge W. E. Thomas. October 15, 1926.

      James L. Dowling, for plaintiff in error.

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

The evidence authorized the defendant’s conviction; no error of law was committed on the trial; and the motion for a new trial, based on the general grounds only, was properly overruled.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17732.
    Moody v. The State.
    Burglary, 9 O. J. p. 1009, n. 3; p. 1029, n. 73, 74; p. Í041, n. 71.
   Broyles, O. J.

1. “Burglary is the breaking and entering into the dwelling, mansion, or storehouse, or other place of business of another, where valuable goods, waz'es, produce, or any other article of ’value, are contained or stored, with -intent to commit a felony or larceny.” Penal Code (1910), § 146.

2. In a prosecution for burglaiy, where the house alleged to have been broken and entered was not a “dwelling, mansion, or stoi'ehouse,” it must be alleged in the indictment that the house was a place of business where valuable goods were contained or stored. Jones v. State, 12 Ga. App. 813, 814 (78 S. E. 474).

(a) It is not essential that the house alleged to have been broken and entered should be expressly denominated in the indictment as a “place of business,” if descriptive words are used sufficient to show that the house was used as a place of business of another. Keenan v. State, 10 Ga. App. 792 (74 S. E. 297).

(5) It is’ essential, however, that it should appear from the indictment that the place charged to have been broken and entez-ed was being used as a place of business. Jones v. State, supra, page 815. The mere fact that valuable goods were contained or stored therein is riot alone sufficient to make the house a place of business, within the meaning of the statute. McElreath v. State, 55 Ga. 562.

Decided January 11, 1927.

Burglary; from Putnam superior court — Judge Park. October 16, 1926.

R. C. Jenkins, for plaintiff in error.

Joseph B. Dulce, solicitor-general, contra.

3. Where an indictment for burglary described the house broken into and entered as a cottonseed warehouse where valuable goods were stored, but where there was no allegation in the indictment that the warehouse was being used as a place of business, the indictment failed to charge the offense of burglary and was subject to be quashed on motion. Jones v. State, supra, page 815.

4. The indictment in the instant ease charged that the accused did unlawfully “break and enter into the church house of Oconee, Baptist Church, white, appropriated to public worship, with intent to commit a larceny therein.” The indictment further charged that the accused, after such breaking and entering, did steal and carry away from said church certain described rugs of the total value of sixteen dollars, said rugs being then and there contained and stored in said church. The church house was not expressly denominated in the indictment as a “place of business,” nor were there descriptive words in the indictment sufficient to show that the house was used as a “place of business” within the meaning of section 146 of the Penal Code. Conceding, but not deciding, that an ordinary church building or edifice, appropriated to public worship, is subject to be burglarized, the indictment in this case, under the above-stated rulings, was fatally defective, and the court erred in overruling the general demurrer interposed, and that error rendered the further proceedings in the case nugatory.

Judgment reversed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17733.
    Mull v. The State.
    Decided January 11, 1927.
    Burglary; from Putnam superior court — Judge Park. October 16, 1926.

      R. C. Jenkins, for plaintiff in error.

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

This case is controlled by the decision in Moody v. State (a companion ease), ante, 284, and, the court erred in overruling the general demurrer to the indictment.

Judgment reversed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17736.
    Black v. The State.
    Decided January 11, 1927.
    Making false election return; from Tattnall superior court— Judge Sheppard. October 18, 1936.

      P. M. Anderson, for plaintiff in error.

      J. Saxton Daniel, solicitor-general, contra.
    Criminal Law, 17 C. J. p. 255, n. 53.
    Elections, 20 C. J. p. 194, n. 20, 21; p. 278, n. 57; p. 279, n. 60; p. 300, h. 34.
   Broyles, C. J.

1. Where a superintendent of an election fails to discharge any duty required of him by law he is guilty of a misdemeanor. Penal Code (1910), § 658; Civil Code (1910), § 83.

(a) One of the duties of a superintendent of an election, after the votes are all counted out, is to state, in a certificate signed by him, the number of votes received by each person voted for. Civil Code (1910), § 82, par. 7. This means, of course, that the certificate must correctly give the number of votes received by each person voted for. If the number of such votes is knowingly and falsely misstated by a superintendent of an election, he has failed to discharge a duty imposed upon him by law, and he is liable to be prosecuted, under section 658 of the Penal Code of 1910, for a misdemeanor. This is true although section 84 of the Civil Code provides that if a superintendent of an election shall make a fraudulent return thereof, he shall forfeit for the offense one hundred dollars, to be recovered by information, and if he be a justice, he forfeits his office on proceedings for removal.

2. Under the above-stated rulings, the conviction of the defendant was amply authorized, and none of the grounds of the amendment to the motion for a new trial show cause for a reversal of the judgment below.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17737.
    SHUPE v. THE STATE.
    1. The indictment, which charged the accused with murder, alleged to have been committed in the driving of a motor-vehicle, was not subject to the demurrer.
    2. The evidence was insufficient to authorize the verdict of involuntary manslaughter in the commission of an unlawful act, and the refusal to grant a new trial was error.
    Decided January 11, 1927.
    Involuntary manslaughter; from Colquitt superior court — Judge W. E. Thomas. October 15, 1936.
    Homicide, 30 C. J. p. 89, n. 58; p. 317, n. 79.
    Motor Vehicles, 28 Cyc. p. 49, n. 57, 58.

      Shupe and Howze were indicted jointly and the indictment was demurred to, “first on the ground that it does not allege' which one of the defendants was driving the automobile at the time of the alleged homicide; and for the further reason that the unlawful acts complained of were not such unlawful acts as would naturally tend to destroy human life.”

      R. D. Smith, James L. Dowling, for plaintiff in error.

      Clifford E. Hay, solicitor-general, contra.
   Broyles, C. J.

Shupe was indicted for the offense of murder; and convicted of involuntary manslaughter in the commission of an unlawful act. The unlawful acts charged in the indictment were as follows: “using and operating, a motor-vehicle, to wit, a Hudson Sedan, upon the Moultrie and Norman Park road, a highway of this State, at a rate of speed exceeding thirty miles per hour, approaching and traversing with said machine that certain bridge on said road located about four miles from Moultrie, and then and there on said bridge meeting said B. L. Smith [the person alleged to have been murdered], who was driving a Ford automobile and approaching in the opposite direction, failed and refused to turn his said machine to the right so as to give one half of the traveled roadway to the said Smith and his vehicle, although it was then and there practicable to give such portion of said roadway, and also failed and refused to give to said Smith so met a fair opportunity to pass by without unnecessary interference.” The evidence showed that ’the car driven by the defendant collided with the ear driven by Smith, on a temporary bridge which was less than twelve feet wide, and the undisputed evidence was that the bridge .was too narrow to permit two automobiles to pass each other thereon. It follows that the charges in the indictment, that it was then and there practicable for the defendant to turn his car to the right so as to give one half of the traveled roadway to Smith and his car, and that the defendant failed and refused to give Smith so met a fair opportunity to pass by without unnecessary interference, were not sustained by the proof. Furthermore, the defendant could not lawfully be convicted upon those charges in the indictment for the reason that they are too uncertain, vague, and indefinite in their terms to be capable of penal enforcement. Hale v. State, 21 Ga. App. 658 (94 S. E. 823); Heath v. State, 36 Ga. App. 206 (136 S. E. 384).

The only other unlawful act charged in the indictment is that the defendant was driving his automobile upon a public highway at a rate of speed exceeding thirty miles per hour. After a careful review of the brief of the evidence we find no evidence, direct or circumstantial, authorizing a finding that at the time of the collision of the two cars upon the bridge, or immediately preceding the collision, the defendant was driving his car at a rate of speed greater than thirty miles an hour. There was no charge in the indictment that the defendant while approaching the bridge ivas driving the automobile at the unlawful rate of speed of more than ten miles per hour. It follows from what has been said that the defendant’s conviction of the offense of involuntary manslaughter in the commission of an unlawful act was unauthorized, and that the court erred in overruling the motion for a new trial.

Judgment reversed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17738.
    MARTIN v. THE STATE.
    1. The evidence warranted the jury in concluding that the knife in question was a deadly weapon, and that the intent to kill was shown.
    2. There having been no request to charge, and the court having twice instructed the jury in effect that in order to convict of assault with intent to murder they should be satisfied, from the evidence, “that the knife was a weapon likely to produce death, used in the manner in which it was used,” and that the defendant cut “with a specific intent to kill,” there is no merit in the exception that “the court erred in failing to charge . . that intent to kill will not be presumed from an attack with a deadly weapon, where death has not ensued,” and that the State must prove beyond a reasonable doubt that the assault was made with “a specific intent to kill.”
    3. Where the doctrine of reasonable fears is invoked as a defense by one charged with an assault with intent to murder with a deadly weapon, it is essential for the defense to show that the attack was necessary, or apparently necessary, to prevent the commission of a felony upon the person making it; and the instruction to the jury in this case, “that the danger must be so urgent and pressing at the time of the cutting, or it must appear that the danger .was so urgent and pressing at the time, that it was necessary for the person to cut the other person,” was entirely applicable to the defense made, in no wise deprived the defendant of his defense, was more favorable to the defendant than to the State, and was not error for any reason assigned.

      Criminal Law, 16 C. J. p. 1056, n. 20; p. 1057, n. 21.
    Homicide, 30 O. J. p. 31, n. 14, 17; p. 318, n. 96; p. 376, n. 66; p. 385, n. 15.

      (a)' A “bare fear” on the part of a person that another is about to commit “a serious personal injury” upon him is never sufficient to justify a deadly assault, with a weapon likely to produce death, and a charge to that effect did not eliminate the defense of'“reasonable fears,” was not calculated to lead the jury to believe that the defendant could not defend himself against any sort of an attack that might be made on him, and was not erroneous for any reason assigned.
    Decided January 11, 1927.
    Assault with intent to murder; from Putnam superior court— Judge Park. October 16, 1926.

      E. L. Stephens, R. C. Jenkins, W. O. Cooper Jr., for plaintiff in error.

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

T. O. Martin was convicted of assault with intent to murder. The gist of the evidence follows: The meeting of the defendant and A. L. Tuggle, the prosecutor, at the home of W. D. Anderson, an acquaintance, was entirely accidental. Martin arrived a short while before Tuggle, and was talking to Anderson on the latter’s porch when Tuggle drove up to Anderson’s house. When Martin saw Tuggle he said, “Yonder is the man who broke up my home, I will go out to see him.” Anderson told Martin to go home, and he said he would, and that he was going to his automobile. Martin had an open knife in his hand when he left the porch. Tuggle had gotten out of his automobile and was standing by Zach Anderson’s car,- which was between Martin and his automobile, with his back to Martin. As Martin approached he said, “Good-bye, Mr. Anderson.” Tuggle, who was standing with one foot on the running-board of Anderson’s car, said to Martin, “How do you do ?” Tuggle made no movement towards Martin, did not leave the side of the car, and had no weapon in his hand. He was smiling. Then “his face went set, and he run his hand down in his pocket, and Martin flashed by.” Tuggle had no time to get anything. He straightened up and Martin cut him. In the struggle which followed, Tuggle caught Martin’s knife hand and fell on top'of him. Others interfered, the knife was taken from Martin, and W. D. Anderson took Tuggle to the doctor in his automobile. A year prior to^ the difficulty Martin threatened Tuggle, and the latter had been told of it and advised to keep away from Martin. Tuggle swore that he looked back, saw Martin within six or eight feet of him with an open knife in his hand, and that Martin said, “Damn you, I have got you,” and made a jump and cut him before he could get his own knife out. The knife was a very small one, opening and shutting with a spring, and having a blade estimated to be from an inch to two and a half inches long. One witness said it was dull, but that it could produce death when used as it was used, and that he knew it could kill a man. Tuggle swore that the knife was a deadly weapon, and that he would have been killed had Martin cut him where he tried to strike him. During the trip to the doctor’s office Tuggle bled profusely, and fainted. Dr. Tolliver swore that there were two wounds in the back of the neck, one about four inches long, and the other just through the skin, about half an inch long; that he took five or six stitches in the larger wound, and none in the other; that the larger wound went to the muscles for about two thirds of its length, and was about half an inch deep at one end; and that the wounds were not serious, but that they were “close to very important centres and vessels,” though they did not penetrate them. The knife was not in evidence. The defendant’s statement at the trial was in effect that he was going to his car when Tuggle, apparently thinking he was going to him, ran his hand in his pocket for a knife, or something; that he, Martin, thought it was a case of his being killed or hurt, or of his hurting Tuggle; and that he had no murder in his heart, and was sorry it happened.

The evidence warranted the jury in concluding that the knife in question was a deadly weapon and that the intent to kill was shown. The evidence sustains the verdict, and there is no merit in the general grounds of the motion for new trial.

The first ground of the amendment to the motion for a new trial is that the court failed to charge that “intent to kill will not be presumed from an attack with a deadly weapon, where death has not ensued; and on the trial of a person charged with assault with intent to murder the burden is upon the State to prove beyond a reasonable doubt that the alleged assault, if made, was made with the specific intent to kill.” That this criticism is not meritorious clearly appears from the following excerpt from the court’s instructions to the jury: “Now, I stated to you just now, and I will repeat it, in order to convict the defendant of assault with intent to murder in this.case, you would have to believe by the evidence in this ease that . . he did with a certain knife unlawfully and feloniously assault and cut Mr. A. L. Tuggle; you would have to further believe that the knife was a weapon likely to produce death, used in the manner in which it was used; you would have to further believe that he cut him with the specific intent to kill him, and with malice aforethought, either express or implied. If you are satisfied of these facts by the evidence in the case beyond a reasonable doubt, you would be authorized to convict the defendant of the offense of assault with intent to murder.” It may not be amiss to' state that the foregoing rules had been once already given the jury as indicated by the beginning of this excerpt. The next ground of the motion for a new trial raises the same question presented in the first ground, and for the same reason there is no merit in it.

The third ground of the amendment to the motion for a new trial really contains two grounds. The first alleges error in the following charge: “But the court charges you that if one person cuts another, and claims to cut him in self-defence, the danger must be so urgent and pressing at the time of the cutting, or it must appear that the danger was so urgent and pressing at the time, that it was necessary for the person to cut the other person.” This excerpt is said to be error (1) because it deprived defendant of his sole defense that he acted under the fears of a reasonable man, and (2) because neither mutual combat nor manslaughter was involved in the case. “The doctrine of reasonable fear does not apply to any case of homicide where the danger apprehended is not urgent and pressing, or apparently so, at the time of the killing.” Tolbirl v. State, 124 Ga. 767 (4) (53 S. E. 327); Jackson v. State, 91 Ga. 271 (1) (18 S. E. 298, 44 Am. St. R. 22). “A bare fear of injury can never be regarded as sufficient to justify a homicide.” Williams v. State, 120 Ga. 873 (48 S. E. 370). See also Elrod v. State, 27 Ga. App. 265 (1) (108 S. E. 67). The foregoing excerpt applies this principle to the case at bar, and is not objectionable for any reason assigned. Newman v. State, 60 Ga. 610 (1).

The second portion of this ground complains that the court charged that “under the laws of this State, if any person cuts another just under a bare fear that the other person is about to commit a serious personal injury upon him, why, he would not be justillable, and it would not be a lawful cutting.” It is said that this charge eliminated the sole defense, of “reasonable fears,” and that it confused the jury, and made them “believe that no matter how great the danger, movant must not act, must not defend himself against any effort Tuggle might make to cut him.” That a “bare fear” of a “serious personal” injury would have been no justification of the cutting in this case can not be questioned. See cases cited immediately above; also section 71 of the Penal Code. That this section is applicable to the sole defense relied on by the defendant, — that of “reasonable fears,” — is too well known to require citation of authority. The second alleged reason why this excerpt was error is too clearly a non sequitur to need discussion.

The last ground of the motion for a new trial, being but an elaboration of the general grounds, is controlled by our previous ruling that the evidence was sufficient to support the verdict.

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17739.
    NEILL v. THE STATE.
    The municipality of Eairburn being a “town” at the date of the establishment of a city court therein, no writ of error lies to the Court of Appeals from that court.
    Courts, 15 O. J. p. 864, n. 60 New; p. 1039, ji. 56,
    Decided January 11, 1927.
    Drunkenness on highway; from city court of Eairburn — Judge Stallings presiding. September 20, 1926.

      Lester G. Dichson, for plaintiff in error.

      William B. Jones, solicitor, contra.
   Luke, J.

Counsel for the State, in his brief, moves to dismiss the bill of exceptions in this case “for the reason that the city court of Eairburn is not a constitutional court from which a bill of exceptions will be entertained by the appellate courts. The city court of Eairburn was created in July, 1923, at which time the city of Eairburn was incorporated as a Town of Eairburn/ ” The record contains no motion to dismiss the bill of exceptions. However, if this court has no jurisdiction to entertain the bill of exceptions, this court would, of its own motion, dismiss the writ of error. “It is not only the right but the duty of a reviewing or appellate court to raise the question of its jurisdiction in any case in which there may be any doubt as to the existence of such jurisdiction.” Welborne v. State, 114 Ga. 796 (40 S. E. 859). It is true that the town of Fairburn was chartered as a city by an act approved August 3, 1925 (Ga. L. 1925, p. 1024), and was therefore a “city,” within the constitutional meaning of that term, at the time of the trial of this case in 1926. It is also true that the act creating the city court of Fairburn provides “that the city court of Fairburn be located in the county of Campbell, in the City of Fairburn.” Ga. L. 1923, p. 114. However, since Fairburn had 'not before that time been chartered as a city, the use of the phrase “City of Fair-burn” in the act creating the court does not render the municipality a city. “It has also been ruled that an act establishing a city court at a place which is incorporated as a town will not have the effect of bringing such court within the class of city courts referred to in that section of the constitution which fixes the jurisdiction of this court, notwithstanding the act creating the city court refers to the place at which it is established as a city, and distinctly declares that the court shall be located at the place thus apparently recognized as an existing city. Atkinson v. State, 112 Ga. 402 [37 S. E. 746]. It is clearly settled, by the decisions just referred to, that a place distinctly incorporated as a town does not become a city by reason of the fact that the General Assembly, in an act in relation to the affairs of such town, refers to it as a city. In order to create a city in the first instance it is necessary for the General Assembly to expressly declare its intention that a given place shall be so designated and recognized. In order to change a town into a city a similar express legislative declaration is essential. And where a place has been distinctly incorporated as a town, the character of the municipal corporation thus created continues unchanged until there has been a legislative declaration which not only in effect says that the place shall no longer be designated as a town, but expressly declares that it shall be classed as one of the cities of the State.” Savannah Railway Co. v. Jordan, 113 Ga. 688 (39 S. E. 511). In Welborne v. State, 114 Ga. 809 (40 S. E. 864), the Supreme Court said: “If an act creates a court at any other place than a county site, or at a county site which has not been expressly incorporated as a city, the court thus created is not a constitutional city court.” In Western Union Telegraph Co. v. Jackson, 98 Ga. 207 (25 S. E. 264), the Supreme Court held that these courts must be established in “cities,” in order to meet the constitutional requirement under consideration. The city court of Fairburn was established in a town, and consequently was not a constitutional city court at the time of its creation. The act creating the court has not been changed in this respect. The later act creating the City of Fairburn and making no reference to the city court of Fairburn could not affect the act creating the court. By merely substituting'the town and the reviewing court in the instant case in lieu of those named in the 3d headnote of the decision in White v. State, 121 Ga. 592 (49 S. E. 715), we have the following ruling which is controlling in the instant case: The municipality of Fairburn being a town at the date of the establishment of a city court therein, no writ of error lies to the Court of Appeals from that court.

Writ of error dismissed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17740.
    Johnson, alias Broddus, v. The State.
    Decided January 11, 1927.
    Possessing liquor; from Jasper superior court — Judge Park. October 13, 1936.

      W. H. Key, W. S. Florence, for plaintiff in error.

      Joseph B. Duke, solicitor-general, contra.
    Criminal Law, 17 C. J.. p. 271, n. 41.
   Broyles, O. J.

1. In the light of the facts of the case and the entire charge of the court, the several excerpts from the charge, excepted to, contain no reversible error.

2. The verdict was authorized by the evidence, and, the finding of the jury having been approved by the trial court, and no reversible error of law appearing, this court is without authority to interfere.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17741.
    Powell v. The State.
    Decided January 11, 1927.
    Burglary; from Johnson superior court — Judge Camp. October 23, 1926.
    Powell and codefendants were charged with having broken and entered the smoke-house of Mrs. Williams and taken from it certain meat. According to the testimony the meat was taken on the night of January 25, and on the 26th meat which Mrs. Williams testified was taken from her smoke-house was found in a branch on the Rawlings place, a large plantation on which twenty-five or thirty families were living, and on which Powell conducted a tw'ohorse farm at a distance of a mile or half mile from where the meat was found. Tracks of a mule and buggy were relied on to connect him with the taking of the meat. It was testified that the tracks began in woods about a quarter or half mile from the house of Mrs. Williams, several miles from where Powell lived, and went to his yard, which was unfenced, and close to a window of his house, and could not be traced farther than his yard, but that neither the mule nor the buggy was found there; that the buggy was found at the house of one of his codefendants, who lived nearer than he did to where the meat was found; that he had two mules, but neither of them made the tracks; that mule and buggy tracks were found near where the meat was found, but no tracks led from there to the defendant’s house, the tracks were not like those found at the defendant’s house, and “there was no evidence that anybody had been down to the meat from the defendant’s house;” that early in the morning of the 26th or 27th he was seen going to his house leading a mule that belonged to Rawlings, and the mule’s tracks “corresponded with the tracks in question;” that he requested a search of his place, and that no meat of the kind in question was found there.

      C. S. Claxton, J. L. Kent, for plaintiff in error.

      Fred Kea, solicitor-general, contra.
    Burglary, 9 O. J. p. 1075, n. 11.
   Luke, J.

The circumstantial evidence upon which the accused was convicted was not sufficient to exclude every reasonable hypothesis save that of the guilt of the accused, and, therefore, the court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.


text:
    17742.
    Eason v. The State.
    Decided January 11, 1927.
    Larceny of cotton; from city court of Baxley — Judge Speer. September 14, 1926.

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

      Wade H. Watson, solicitor, contra.
    Criminal Law, 17 C. J. p. 255, n. 53.
   Broyles, C. J.

1. In the light of the facts of the case and the entire charge of the court, the excerpts from the charge, excepted to, were not error for any reason assigned. The chai’ge was full and fair and correctly presented to the jury the issues in the case and the appropriate law thereon.

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

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17743.
    Smith v. The State.
    Decided January 11, 1927.
    Possessing intoxicating liquor; from Pulton superior court-judge Pomeroy. September 27, 1926.

      C. G. Battle, for plaintiff in error.

      John A. Boykin, solicitor-general, J. W. LeCraw, J. H. Hudson, contra.
    Criminal Law, 17 C. J. p. 267, n. 93; p. 271, n. 41.
   Broyles, C. J.

1. In the light of the entire charge of the court and the facts of the case as disclosed by the record, the alleged errors of omission and commission in the charge do not require another hearing of the case.

2. While the evidence relied upon by the State for a conviction of the offense charged was wholly circumstantial, this court can not hold, as a matter of law, that it was insufficient to authorize the jury to find that it excluded every reasonable hypothesis save that of the defendant’s guilt; and the court having correctly instructed the jury upon the law of circumstantial evidence, and the finding of the jury having been approved by the trial court, and no reversible error of law appearing, this court is without authority to interfere. This case is distinguished by its particular facts from those cited in the brief of counsel for the plaintiff in error.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.


text:
    17748.
    Faver v. The State.
    Decided January 11, 1927.
    Larceny from house; from Wilkes superior court — Judge Perry-man. October 4, 1936.
    The court charged the jury on the law as to the defendant’s statement at the trial, but no such statement was made in this case.

      Hugh E. Combs, for plaintiff in error.

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

Upon the authority of Cooley v. State, 152 Ga. 469 (3), the judgment overruling the motion for new trial is affirmed. See also Carter v. State, 7 Ga. App. 42 (65 S. E. 1090); Tucker v. State, 29 Ga. App. 221 (1) (114 S. E. 583).

Judgment affirmed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.