author: Stephens, J.

text:
    14927.
    Turner v. Albany Coca-Cola Bottling Co.
   Stephens, J.

1. Subsection & of section 67 of the workmen’s compensation act of 1920 (Ga. L. 1920, p. 167), which imposes certain penalties upon an employer affected by the act, among which is the deprivation of the employer’s right to come under the act and to be exempt from an action at common law by an injured employee, does not penalize the refusal or neglect of an employer to perform the duty, imposed upon him under subsection a of that section, to file with the commission within thirty days after the act goes into effect “evidence satisfactory to the commission of his compliance with.the provisions of section 66 and all others relating thereto.”

Decided July 22, 1924.

Action fox damages; from Colquitt snpexiox. court — Judge Thomas. July 5, 1913.

Aslcew & Mather, for plaintiff.

Hill & Gibson, for defendant.

2. Under the foregoing ruling the defendant employer came within the terms of the workmen’s compensation act, and the petition, filed in the superior court by the employee, seeking to recover in tort at common law, for an injury received July 19, 1921, failed to set out a cause of action, and was properly dismissed on general demurrer.

Judgment affirmed.

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


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    15533.
    Brown v. Marbut-Williams Lumber Co. et al.

    Decided July 22, 1924.
    Motion to vacate judgment; from Fulton superior court — Judge E. D. Tliomas. January 19, 1924.

      J. V. Poole, B. H. Sullivan, for plaintiff.

      Etheridge, Sams & Etheridge, McElreath & Scott, Burress & Dillard, W. J. Laney, A. E. Mayer, for defendants.
   Bell, J.

1. Where a motion to set aside a consent verdict does not allege any facts upon which the motion is predicated, but merely avers that “through some misunderstanding or inadvertence” the verdict is not as the movant contends it should have been, the motion does not show any cause for setting aside the verdict. Marshall v. Livingston, 77 Ga. 21 (5 a); Ford v. Clark, 129 Ga. 292. The dismissal of such motion would have been proper, and the order denying it will be construed as having that effect. Bedgood v. Floyd, 20 Ga. App. 617 (93 S. E. 218); Lovett v. Vickers, 24 Ga. App. 407 (100 S. E. 755); Swicord v. Grady County, 24 Ga. App. 522 (3) (101 S. E. 395).

2. Where a motion to set aside a decree was made upon the ground that the court therein held that the contract price for the building of a certain house “was $4,150, when in fact the contract price was . . $4,000,” and where, after judgment adverse to the motion, it assigned that the court erred in refusing-“to allow movant to introduce any evidence touching this matter whatever,” this court cannot say that the . trial judge committed error as alleged, where he certified that prior to the entry of the decree sought to be set aside “certain contracts by and between the parties were submitted to the court,” and the movant’s contention upon this question was fully heard and passed upon, and it does not appear that in the motion any matter was brought forward which, by reason of fraud, accident, or mistake, or -the acts of the adverse party, unmixed with the negligence or fault of the movant, he was prevented from urging before the court at or before the rendition of the decree. Civil Code (1910), § 5965.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    15540.
    Sims v. Saunders.
    Decided July 22, 1924.
    Complaint; from Barrow superior court — Judge Fortson. February 16, 1924.

      G. A. Johns, for plaintiff in error. B. H. Kimball, contra.
   Bell, J.

There being ample evidence to sustain the verdict, and no error of law being complained of, this court is without authority to reverse the judgment of the trial court, refusing the motion for a new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    15643.
    FAIRBURN SUPPLY COMPANY v. CRUMLEY-SHARP HARDWARE COMPANY.
    Disqualification of a juror in the case in which the judgment in question was rendered was not a sufficient ground of the affidavit of illegality.
    The ground as to settlement of the execution by a bank check delivered to the plaintiff’s attorney failed to show that the check had been paid; but if it sufficiently averred that he accepted the check as payment, the affidavit of illegality was insufficient in failing to allege that he had authority to make the alleged settlement, or that the plaintiff ratified his act.
    Decided July 22, 1924.
    Affidavit of illegality; from Campbell superior court — Judge Hutcheson. April 15, 1924.
    Crumley-Sharp Hardware Company procured a verdict and judgment against Fairburn Supply Company and others, and an execution, issued in pursuance thereof, was levied on the property of the supply company. It thereupon filed an affidavit of illegality, containing two grounds, as follows: (1) “That said execution was based upon a judgment, which judgment was based upon a verdict of a jury in Campbell superior court at the February term, 1924, and that D. B. Gullatt, a member of said jury, was and is related to O. W. Gullatt, a stockholder in defendant company, the said D. B. Gullatt being a brother of the said 0. W. Gullatt; that said verdict of said jury was therefore void, and the judgment issued upon said void judgment is therefore void and illegal.” (2) “That said execution has been paid in full by this defendant, and settled with a check issued by defendant upon the Bank of Campbell County, payable to plaintiff in fi. fa. and delivered to its attorney or agent, F. L. Eyles, and accepted by him for plaintiff in fi. fa., and said execution is therefore illegal and proceeding illegally, for the reason that the same has thus been settled.” The affidavit was stricken on motion of the plaintiff in fi. fa., and the affiant excepted.

      Lawrence S. Gamp, for plaintiff in error.

      May son & Johnson, contra.
   Bell, J.

1. There are at least three reasons why the first ground of the affidavit of illegality was properly stricken: (a) That one of the jurors before whom the original case was tried was related within the prohibited degree to a stockholder of the defendant corporation, the unsuccessful party therein, is no legal cause for complaint by such party after verdict, and would not have been sufficient ground even of a motion by it for a new trial, although not known to such party or its counsel until after verdict. Wright v. Smith, 104 Ga. 174 (30 S. E. 651); Screws v. Anderson, 124 Ga. 361 (4) (52 S. E. 429); Parker v. State, 146 Ga. 131 (90 S. E. 859). (b) An objection to the validity of a verdict and judgment upon the ground that one of the jurors rendering the verdict was disqualified because of relationship to one of the parties, whether the successful or the unsuccessful party, is not available by affidavit of illegality, even where the circumstances might have afforded ground for a new trial. McMillan v. Nichols, 62 Ga. 36; Rogers v. Felker, 77 Ga. 46; Jarrell v. Guann, 105 Ga. 139 (2) (31 S. E. 149); Mayor &c. of Brunswick v. Sims, 14 Ga. App. 315 (80 S. E. 730). (c)‘ “Before a verdict will be set aside because of the disqualification of a juror it must appear that the disqualification was unknown to the complaining party before the service of the juror” (Futch v. Quinn-Marshall Co., 14 Ga. App. 692 (2), 82 S. E. 55), such want of knowledge not being alleged in the affidavit of illegality in this case. Inter-Southern Life Insurance Co. v. McQuarie, 148 Ga. 233 (2) (96 S. E. 424); Holder v. Farmers Exchange Bank, 30 Ga. App. 400 (5) (118 S. E. 467).

2. “Bank cheeks are not payment until themselves paid.” Civil Code (1910), § 4314. “Without special authority, attorneys cannot receive anything in discharge of a client’s claim but the full amount in cash.” Civil Code (1910), § 4956. The second ground of the affidavit of illegality failed to allege that the check itself had been paid, but assuming that it sufficiently averred that the attorney for the plaintiff in fi. fa. had accepted the check as payment, it still does not show any cause for arresting the fi. fa., “the burden [being] upon the defendant to show the authority of the plaintiff’s attorney to make the settlement which [it] sets up as a satisfaction of the plaintiff’s claim,” and the affidavit having failed .to allege that the attorney had such authority or that the plaintiff in fi. fa. had ratified his act. Kaiser v. Hancock, 106 Ga. 217 (32 S. E. 123); Sonnebom v. Moore, 105 Ga. 497 (30 S. E. 947); Holland v. Mutual Fertilizer Co., 8 Ga. App. 714 (2) (70 S. E. 151); Jones v. Word, 23 Ga. App. 646 (99 S. E. 230); Johnson v. Starr Piano Co., 27 Ga. App. 425 (108 S. E. 811); Evans v. Atlantic National Bank, 147 Ga. 621 (3) (95 S. E. 219).

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    15654.
    HOBBS v. CITIZENS BANK OF WRENS.
    1. Eairly construed, an averment in an action upon a note, that the defendant executed and delivered the note to the petitioner, would imply that the note was payable either to the plaintiff or to bearer, and not that it was payable to a third person. This is so even under the general rule that a pleading is to be construed most strongly against the pleader.
    2. A promissory note is a negotiable instrument. Civil Code (1910),'§§ 4270, 4273; Reed v. Murphy, 1 Ga. 236; Lyneh v. Goldsmith, 64 Ga. 42.
    3. A promissory note being negotiable by the law merchant, it is not necessary in a suit thereon to aver or prove that it was founded upon a consideration. A consideration will be presumed unless the .eontraiy is made to appear. Purcell v. Armour Packing Go., 4 Ga. App. 253 (3) (61 S. E. 138), and authorities therein cited. See also Jones v. Winstead, 186 N. C. 536 (120 S. E. 89).
    4. Under the ruling in paragraph 1 above, it sufficiently appeared by the petition in this case that the plaintiff was the owner of the note upon its execution and delivery. There is no presumption that the plaintiff did not continue to own it merely because it was a negotiable instrument. Where title to property, even a promissory note, is shown to have been at one time in a certain person, his ownership is presumed to continue until the contrary appears. Coleman & Burden Co. v. Rice, 105 Ga. 163 (31 S. E. 424); Russell v. Morris, 134 Ga. 65 (2) (67 S. E. 404); Culpepper v. Culpepper, 18 Ga. App. 182 (2) (89 S. E. 161); Branch v. American Agricultural Chemical Co., 22 Ga. App. 52 (2) (95 S. E. 476) ; Sasser v. Byrd, 8 Ga. App. 824 (70 S. E. 157).
    5. Mere lapse of time short of the period fixed by the statute of limitations as a bar to a suit on a note will not of itself (that is, in the absence of other circumstances) raise a presumption of payment. Milledge v. Gardner, 33 Ga. 397 (1), 401; Tumlin v. Guest, 31 Ga. App. 250 (2) (120 S. E. 442). “Payment is an affirmative defense which should be set up and proved by the defendant.” Christian v. Bryant, 102 Ga. 561 (27 S. E. 666); Armour v. Bluthenihal, 9 Ga. App. 707 (3), 712 (72 S. E. 168); Douglas v. Stephens, 27 Ga. App. 485 (2), 488 (108 S. E. 833); Lanier v. Huguley, 91 Ga. 791 (1), 793 (18 S. E. 39) ; Haywood V. Lewis, .65 Ga., 221 '(2).. ....
    6..Under tlie foregoing rulings it sufficiently appeared, as against objection in the nature of a general demurrer, that the defendant was indebted to the plaintiff on the note upon which the action was brought, although there was no express averment of such indebtedness.
    7. All liquidated demands, where by agreement or otherwise the sum to be paid is fixed or certain, bear interest from the time the party is liable and bound to pay them; if payable on demand, from the time of the demand. In ease of promissory notes payable on demand, the law pre- ■ sumes a demand instantly, and gives interest from date. Civil Code (1910), § 3434. Bills, notes, or other paper, payable on demand, are due immediately. Civil Code (1910), § 4292.
    8. No answer having been filed, the present action was marked in default at the return term. Prior to verdict and at a subsequent term the defendant filed written objections to the rendition of any verdict against him, because, as averred therein, the petition failed to set forth a cause of action. See Kelly v. Slrouse, 116 Ga. 872 (5) (43 S. E. 280) ; O’Oonnor v. Brucker, 117 Ga. 451 (3) (43 S. E. 731). He has excepted to the action of the court in striking- such pleading and to the direction then of a verdict against him, the same being for principal, interest, and attorney’s fees. Held:

      (a) The defendant, as the plaintiff in error, is certainly in no better position than he would have been if excepting to the overruling of a general demurrer. The test of the sufficiency of the petition as against a general demurrer is whether the defendant can admit all the obligations contained therein and at the same time escape all liability. Citizens & Southern Bank v. Union Warehouse Co., 157 Ga. 434 (7) (122 S. E. 327). -
    (b) The overruling of a general demurrer does not adjudicate that the petition is good in every part, or that the plaintiff is entitled to recover the entire sum claimed, but that the petition is not wholly bad. Georgia Railway é Electric Co. v. Town of Decatur, 29 Ga. App. 653 (7) (116 S. E. 645); Hew Zealand Eire Ins. Co. v. Brewer, 29 Ga. App. 773 (5) (116 S. E. 922). A pleading of that nature is properly overruled if any part of the petition sets out a legal cause of action. See Port Wentworth Terminal Corporation v. Leavitt, 24 Ga. App. 650 (101 S. E. 766). Striking it is the equivalent of overruling it.
    (c) Accordingly, since a cause of action was set forth as to principal and interest, the judgment of the trial court, striking the pleading designed to prevent any verdict and judgment being rendered against the defendant and attacking the petition as a whole, will not be reversed, “whether or not the recovery of attorney’s fees was unauthorized under the pleadings in the ease.” If so much of the judgment as awards attorney’s fees was unauthorized, proceedings to amend the judgment or vacate it in part might lie, whereby that which was good might be preserved and . that which was bad might be removed; but where part is good and a. part bad, and the motion was an attack upon the judgment as a whole, the motion was properly overruled or dismissed. This decision affirming the judgment of the court below is not to be so construed as to have the effect of precluding the plaintiff in error from instituting appropriate proceedings for the purpose of having the judgment amended by striking therefrom so much thereof as awards attorney’s fees against the defendant, if, upon the hearing of the application to amend, it should appear that judgment for attorney’s fees was unauthorized. Sliahan v. Myers, 130 Qa. 724 (61 S. E. 702).
    (d) As to the sufficiency of the averments for the recovery of attorney’s fees, see Rawleigh Medical Co. v. Burney, 22 Qa. App. 492 (96 S. E. 578).
    Decided July 22, 1924.
    Complaint; from Warren superior court — Judge Shurley. April 10, 1924.

      B. F. Walker, for plaintiff in error. L. D. McGregor, contra.
   Bell, J.

The Citizens Bank of Wrens, Ga., a corporation, filed suit in the superior court of Warren county against F. A. Hobbs upon five promissory notes. The petition contained five counts, one for each note. To neither count was there attached any copy of the note sued. The first count was as follows:

“1. That the said F. A. Hobbs is a resident of Warren county, Georgia.

“2. That the said F. A. Hobbs did upon the 11th day of November, 1920, execute and deliver to your petitioner his promissory note for the principal sum of $553.00, the same being due upon demand, with interest at the rate of 8% per annum.

“3. That your petitioner has demanded of the said F. A. Hobbs the payment of the above-described promissory note, and payment has been refused.

“4. That the above-described note contained a provision that if said note was collected by suit or placed in hands of an attorney for collection, the defendant would pay 10 per cent, attorney’s fees, together with said principal and interest; that on the 30th day of August, 1923, petitioner did deposit in the Hnited States mail, with sufficient postage thereon, and did register the same, addressed to the said F. A. Hobbs, a notice in writing that it was the intention of the petitioner to bring suit on said note to the October term, 1923, of Warren superior court, and that unless the defendant paid said note on or before the return day of said court, which was on the 11th day of September, 1923, that in such event petitioner would claim the attorney’s fees as expressed in said note, and that the defendant has failed and refused to pay said note or any part thereof.

“Wherefore petitioner prays judgment against the defendant upon said promissory note for the principal sum, interest, and attorney’s fees due thereon.”

Each of the other counts was in. the same form, except as to the amount and date of the notes, and except also in the fact that in each of the remaining counts it was alleged that the note bore interest at 8 per cent, per annum from date, while in the first count, as will have been noticed, it was not alleged from what date the note was to bear interest.

The case was marked in default at the appearance term, but the defendant, before verdict, filed a written motion that the court should “refuse rendering any judgment against defendant,” or, if the case should be submitted to a jury, that the court should “charge and instruct the jury that they would not be authorized to render .a verdict in said case against this movant,” the grounds of which were as follows: “1. Because there is not sufficient allegation made and alleged in plaintiff’s petition to authorize a verdict for any amount against defendant. 2. Because, under all the allegations in plaintiff’s petition, there is no legal cause of action set out, nor any legal reason for passing or giving a judgment or verdict against defendant. 3. Because no allegation of the required statutory written notice being given so as to make the attorney’s fees recoverable. 4. Nowhere is it alleged that defendant is indebted to plaintiff in any amount upon said notes. No allegation that said notes were non-negotiable.” The court passed an order dismissing this motion, and thereupon directed a verdict in favor of the plaintiff for principal, interest, and attorney’s fees. To each of these judgments the defendant excepted.

Under the authorities cited in the headnotes, we are of the opinion that the petition set forth a cause of action in each count. The headnotes are framed with reference to the first count, but the rulings made therein are controlling alike upon every other count.

It will be observed that the motion attacked the petition as a whole, and the assignments are 'upon the verdict and judgment as a whole. It is true that in paragraph 3 of the defendant’s motion it is insisted that there is “no allegation of the required statutory notice being given so as to make the attorney’s fees recoverable,” but this is merely one of the reasons assigned in the motion why the court should “refuse rendering any judgment against the defendant,” or should charge and instruct the jury that they would not be authorized to render a verdict against him. Such general attack upon the entire petition does not raise for decision the question as to whether the petition was bad in some specific part, or, to be more definite, whether it contains sufficient averments for the recovery of the distinct item of attorney’s fees. The motion was in the nature of a general demurrer or oral motion to dismiss, and such a motion is properly overruled where the petition sets forth a cause of action as to any item sued for. It may be true that the averments are insufficient for the recovery of attorney’s fees .(Rawleigh Medical Co. v. Burney, 22 Ga. App. 492, 96 S. E. 578), but this would not have afforded a reason for refusing to permit any verdict and judgment to be rendered in favor of the plaintiff; and therefore the defendant’s motion was properly denied. On the question of practice, see the following, in addition to the decisions cited in headnote 8: Gainesville Midland Railway v. Jackson, 1 Ga. App. 632, 635 (57 S. E. 1007); Hart v. Phenix Insurance Co., 113 Ga. 859 (4) (39 S. E. 304); Patterson v. Beck, 133 Ga. 701 (1), 706 (66 S. E. 911); Ætna Insurance Co. v. Peavy, 9 Ga. App. 759 (2) (72 S. E. 300); Lester v. Rogers, 31 Ga. App. 590 (4) (121 S. E. 582).

What we have just said applies equally to a contention made in the supplementary brief of the plaintiff in error, that the verdict and judgment for interest and attorney’s fees were excessive, under a proper calculation, even assuming that attorney’s fees were recoverable.

It follows that the judgment of the trial court in dismissing the defendant’s motion must be affirmed; but the judgment of affirmance is not to be so construed as to preclude the plaintiff in error from instituting appropriate proceedings for the purpose of having the judgment amended by striking therefrom so much. as awards attorney’s fees, or any excess in the attorney’s fees or the interest, if upon the hearing of the application to amend it should appear by the record that the judgment was in part illegal.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


author: Broyles, C. J.

text:
    14970.
    Bell v. Georgia Military College et al.

    Decided August 8, 1924.
    Certiorari; from Baldwin superior court — Judge Park. August 6, 1923.

      Sibley & Sibley, for plaintiff.

      Allen & Pottle and George S. Carpenter, for defendants.
   Broyles, C. J.

1. The judge of a county court lias authority to direct ' a verdict where the amount involved in the case is less than $100, and the suit is filed to the monthly session or term of the court.

2. The Georgia Military College being a public institution of educational character within the meaning of the decision in the case of Hightower v. Slaton, 54 Ga. 108 (21 Am. R. 273), the salary of a teacher employed by it is not subject to process of garnishment.

'3. Under section 5298 of the Civil Code (1910), as- amended by the act approved August 14, 1914 (Ga. L. 1914, p. 62), the salary of a teacher in- a public institution of this State is not subject to the process of garnishment, irrespective of whether the salary is to be paid daily, weekly, or monthly, or at the eiid of the scholastic year.

4. Applying the above rulings (which were made by the Supreme Court in answer to questions certified to it by this court, — 158 Ga.'539), the judge of the county court did not err in directing a verdict for the defendants and a finding that the funds were not subject to the process of garnishment; and the judge of the superior court properly overruled the certiorari.

(a) The point raised in the brief of counsel for the plaintiff in error, that where the plaintiff fails to make out a case the court should award a nonsuit instead of directing a verdict, was not raised in the petition for certiorari, and that question, therefore, cannot be considered by this court. Wall v. Hawker Pottery Go., 27 Ga. App. 255 (2) (108 S'. E. 134), and citations.

Judgment affirmed.

Luke and Bloodioorth, JJ., concur.


author: Bloodwortii, J.

text:
    15263.
    Atlanta & West Point Railroad Co. v. Patton.
   Bloodwortii, J.

1. On the trial of an action against a railroad company for damages for personal injuries sustained by a person while riding in an automobile as the guest of the owner and driver thereof, the automobile having been struck by a train, it was not the expression of an opinion but the statement of a fact by the plaintiff, who was a witness, to say that at the time he was injured he had no control over the automobile in which he was riding.

2. The 6th ground of the motion for a new trial will not be considered, because it is not specifically argued in the brief of plaintiff in error, and there is no general insistence on all the grounds of the motion.

3. The court did not err in refusing to admit in evidence an ordinance of . the City of. Atlanta, which in part provides that “it shall be unlawful for any person to run, drive, or operate any automobile, auto-truck, motorcycle, or other motor-driven vehicle upon or across the track or tracks of any steam railroad company operating in the City of Atlanta, where such steam railroad track or tracks cross any street, alley, avenue or highway, in the City of Atlanta, without first bringing such automobile, auto-truck, motorcycle or other motor-driven vehicle to a full stop not less than twenty (20) feet from the nearest rail of such steam railroad track or tracks. . . The owner of any automobile, auto-truck, motorcycle or other motor-driven vehicle, when not actually the driver thereof, who shall knowingly cause or permit the driver thereof to violate this ordinance, shall likewise be guilty of a violation thereof.”

Decided August 8, 1924.

Damages; from city court of Atlanta — Judge Reid. November 16, 1923.

Dorsey, Brewster, Howell & Heyman, for plaintiif in error.

Harwell, Fairman & Barrett, contra.

4. The court properly admitted in evidence the following ordinance of the City of Atlanta: “Any engineer or other person in charge of an engine, with or without cars attached, wild shall run the same through any part of the city at a greater rate of speed than six miles an hour, shall on conviction be fined not more than five hundred dollars, pr imprisoned not longer than thirty days, either or both in the discretion of the recorder’s court. ”

5. When they are read in connection with the other instructions given and the facts of the case, the excerpts from the charge of which complaint is made show no error which would require the grant of a new trial.

0. There is evidence to support the verdict.

Judgment affirmed.

Broyles, O. J., and Lube, J., concur.


author: Bloodworth, J.

text:
    15519.
    LAMAR v. BANKERS HEALTH & LIFE INS. CO.
    Under the act creating the municipal court of the City of Macon, a sufficient demand for a trial by jury is not made by the words, “And with this your petitioner puts herself upon the country,” which follow the prayer for process, in the plaintiff’s petition, but where such a trial is desired, there must bo an express, unequivocal, “written demand for trial by jury.”
    Decided August 8, 1924.
    Certiorari; from Bibb superior court — Judge Malcolm D. Jones. February 29, 1924.
    In the municipal court of Macon suit was brought against the Bankers Health & Life Insurance Company by Sallie Lamar. Just after the prayer for process the petition contained the following words: “And with this your petitioner puts herself upon the country.” Section 25 of the act creating the municipal court of Macon (Ga. Laws, 1913, p. 261) is as follows: “Be it further enacted by the authority aforesaid, that every case in said municipal court shall be tried by the judge thereof without a jury unless a written demand for trial by jury is filed in said court by the plaintiff or his attorney or by any other party seeking affirmative relief at the time such action or proceeding is instituted, and by the defendant or his attorney on or before the day upon which he is required to appear in'court in response to the proceedings against him; upon the failure of a party to demand a trial by jury, he shall be held to have waived such right.” When the petition was filed the clerk marked it on the docket as a jury case, and placed it on the “jury calendar.” The defendant asked that the case be placed on the “non-jury calendar,” and based his motion on the ground that the plaintiff had not made “a demand in writing for a jury as required by law.” The motion was sustained, the judge tried the case without a jury, rendered judgment against the plaintiff, and she excepted.

      J. D. Hughes, for plaintiff. Turpin & Lane, for defendant.
   Bloodworth, J.

(After stating the foregoing facts.) In the brief of counsel for the plaintiff in error he says: “The record presents only one question for consideration by this court: Was the demand in writing in the plaintiff’s petition, 'with this she puts herself upon the country,’ sufficient in law to enable her cause to be tried by a jury.” As this point seems never to have been passed upon by either of the appellate courts of this State, we have made a rather exhaustive examination of text-books, encyclopedias, and reports for some precedent. The case nearest to this one that we have found is that of Cleaves v. Davidson, 85 Tenn. 380. In that case it was held that “The ordinary conclusion to the country, in a plea, is not a sufficient demand for a jury, by the defendant, under the act of 1875, chapter 4, requiring that 'either party desiring a jury shall in case of original suits, demand á jury in his first pleading, tendering an issue triable by jury.’ ” And the court held in that case (p. 382) : “Though 'the resort to a jury, in ancient times, could, in general, be had only by the mutual consent of each party,’ and the conclusion to the country was then used by the one party to indicate that the issue tendered was to be tried by a jury, and the similiter was used by the other party to express his consent to such trial (Stephens on Pleading, Buie 3, pages 236-7; Rule 2, page 229), we thiuk the ancient origin of such pleading, and the reasons therefor, cannot now be invoked, as controlling, in the construction of a modern statute.” We agree with the conclusion reached in the foregoing case that “the ancient origin of such pleading and the reasons therefor, -cannot now be invoked, as controlling, in the construction of a modern statute.” Under the act creating the municipal court of the City of Macon, when a trial by jury is desired it is not a sufficient demand therefor for the petition to conclude with the words, “And with this your petitioner puts herself upon the country,” but there must be an express, unequivocal, “written demand for trial by jury” as required by the statute.

Judgment affirmed.

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


author: Bloodwortti, J.

text:
    15580.
    WAYNE OIL TANK & PUMP CO. v. CLAXTON OIL CO.
    The court erred in overruling the plaintiff’s motion for a new. trial.
    (a) The contract sued on was a good and valid one, and was not breached by the plaintiff.

      (h) The telegrams referred to in the motion for a new trial were erroneously admitted in evidence.
    (c) All oral negotiations between the representatives of the parties preceding the execution of the written contract are to be regarded as merged in and extinguished by it.
    Decided August 8, 1924.
    Action for breach of contract; from city court of Claxton— Judge Elmore. March 22, 1924.
    Wayne Oil Tank &_Pump Company, in its petition, alleged: that on June 26, 1922, it entered into a written contract with.the defendant, Claxton Oil Company, to sell to it certain property “consisting principally of gasoline tank and pump and fixtures” f. o. b. Port Wayne, Indiana;'that “in compliance with the terms of said contract for said property, and at its express request, as set forth in the* contract, this plaintiff, after acceptance thereof on the 1st day of July, 1922, shipped the property purchased by. defendant .by freight from Port Wayne,' Indiana, consigned to it at Claxton, Georgia; that after said property had been shipped to defendant, said defendant failed and refused to accept same upon arrival and delivery thereof at the point of destination, Claxton, Georgia; that the defendant still fails and refuses to accept said property or pay this plaintiff, although the amount due thereon has long been due and now remains unpaid.” Plaintiff also alleged that when defendant failed and refused to accept said property it stored the same for defendant, to be delivered to it “upon demand therefor and compliance by defendant with the terms of the contract;” and further alleged that because of the breach of the contract by defendant it “has damaged and caused plaintiff a loss of $103.45 in freight and storage charges which the plaintiff paid on said property and which the defendant was obligated to do under the terms of the contract;” that it paid $2.50 for drayage “for hauling said property from the depot to plaintiff’s warehouse .where the property is stored for defendant.” The plaintiff alleged that the defendant had acted in bad faith, and it claimed attorney’s fees. It alleged that it had fully complied with the terms of the contract, and asked judgment for the foregoing items, in addition to the principal sum of $461, the purchase price of the property.
    Defendant filed a plea in which it denied liability and further alleged “That it is engaged in the business of selling gasoline, kerosene and like products of Claxton, Georgia, and that in the course of its business it frequently furnishes tanks and pumps to dealers who are its customers, free of charge; that about the 14th day of June, 1922, it had a customer who desired a tank and pump such as the one that was ordered from the plaintiff, for immediate use, and it was urgently necessary that the defendant procure such tank and pump without delay, and in order to procure the same it wired the defendant at its Atlanta office on June 14th, 1922, asking if shipment could be made from Atlanta by plaintiff. [Plaintiff?] wired the defendant that it could not be shipped from Atlanta, but could make shipment almost immediately from Fort Wayne, Indiana. On June 17th defendant wired to plaintiff to its Atlanta office for the price on said pump and tank, and on June 19th plaintiff wired the defendant what price was, and June 20th defendant wired to plaintiff to its Atlanta, Georgia, office to ship quick said pump and tank. Defendant relied on said pump and tank being shipped upon the strength of this wire, and heard nothing more of it until June 26th when C. L. Saunders, one of the stockholders and secretary and manager of said company, was in Atlanta, and called to see the agent of the plaintiff and asked him why shipment had not been made of said tank and pump, but he gave defendant no satisfactory reason for the same not having been shipped. The said Saunders then 'and there representing the defendant related to the plaintiff by telling its agent who took said order he was E. E. Erwin, district manager, the exact circumstances surrounding defendant’s need of said pump and tank, and then and there put the plaintiff under notice that unless shipment could be made at once that he did not desire to sign said written order for the said pump and tank, and would not depend upon plaintiff to furnish the same, and then and there plaintiff assured defendant that shipment would be made on the day said order was assigned; and while the said Saunders was in the office of the said plaintiff in Atlanta, Georgia, and at the time said written order was signed, the said Erwin sent an order by telegram to the plaintiff in Fort Wayne, Indiana, for the said pump and tank to be shipped. Eelying upon the promise to ship said tank and pump without delay, and believing that the same had already been ordered by wire, defendant executed the said order in good faith believing that the said pump and tank would be shipped as promised.
    . “Defendant alleges further that plaintiff did not ship said pump and tank as soon as it could have been shipped and as soon as it was contemplated by the parties to the said written order.
    “Defendant says that plaintiff did not ship pump and tank within a reasonable time, taking into consideration all the facts and circumstances with the transaction, and therefore did not ship in accordance with said order.
    “Defendant says that said pump and tank was not shipped until about fifteen days after said order was given, and that in failing to ship sooner plaintiff breached said contract, and is not entitled to recover thereon.
    “Defendant alleges further that after waiting several days [ ?] plaintiff should have shipped and was obligated to ship said pump and tank .before the same had been shipped and before anything had been done towards shipping it, he coufitermanded said order on the 6th day of-July, 1922, for the reason that plaintiff had failed to live up to his agreements to make shipment, and proceeded to supply its demand for the pump and tank by other means.”

      Upon the trial of the case a verdict was rendered in favor of the defendant. Plaintiff filed a motion for a new trial, and, this being overruled, he brought the case to this court for review.

      R. H. Burroughs, for plaintiff. P. M. Anderson, for defendant.
   Bloodwortti, J.

.(After stating the foregoing facts.) It is apparent from the record in this case that when the representative of the Claxton Oil Company met the agent of the Wayne Oil Tank & Pump Company in Atlanta on June 26, 1922, and the two had a conference, each decided that so far as the sale of the tank, pump and fixtures was concerned, he would “let the dead past bury its dead.” This is shown by the fact that they proceeded to draw a written contract in which it was stated that “this proposal of purchase shall not become effective or binding until it is accepted or confirmed by said company [plaintiff] at its home office in Port Wayne, Indiana;” that “there are no agreements not mentioned herein, and all the terms and specifications have been distinctly understood;” and that “all agreements between the parties hereto are covered by this order, and that same are not subject to countermand by the vendee.” (Italics ours.) ' This order contained all the elements of a sale. It identified the articles sold, named the price thereof, and the consent of the parties thereto is shown by their signing it. Civil Code of 1910, § 4106. That each party recognized this as a complete contract is shown also by the fact that in their pleadings each claimed that the other breached it. It is apparent not only from the plea of the defendant, but from the evidence that defendant’s representative, Saunders, signed the contract, a duplicate of which was given him at the time, “without apprising himself of its contents otherwise than by accepting representations made by the opposite party,” and it' does not appear that between him and the other party there existed any “fiduciary or confidential relations,” of that “at the time he signed it some such emergency existed as would excuse hís failure to read it, or that his failure to read it was brought about-by some misleading device or artifice amounting to actual fraud.” Tinsley v. Gullet Gin Co., 21 Ga. App. 512 (2), (94 S. E. 892); Barnes v. Slaton Drug Co., 21 Ga. App. 580, and eases cited on pages 581, 582 (94 S. E. 896); Twyman v. Avera Loan &c. Co., 23 Ga. App. 136 (98 S. E. 239). The case of Arnold v. Malsby, 120 Ga. 586 (48 S. E. 132), is somewhat like this one, and in that case the first heaclnote is as follows: “All previous verbal negotiations respecting the terms of sale of certain machinery are merged in the subsequent written contract of sale, and are inadmissible to vary or contradict the writing. Smith v. Newton, 59 Ga. 113 (5).” In Chicago Building Co. v. Summerour, 101 Ga. 820 (29 S. E. 291), Justice Little said: “If he signed the written agreement without reading it, and it did not contain the contract as in fact made, or if he was induced to enter into the agreement by fraudulent promises on the part of the agent, he was only deceived by such promises in consequence of his own neglect to read the terms of the written contract to which he subscribed. The defendant had full opportunity to inform himself as to the terms of the instrument. Had he taken the precaution to do so, he would have been protected against the imposition alleged to have been practiced upon him. His negligent omission to inform himself as to the truth of the representations or their binding force defeats an impeachment of his contract upon grounds as to which the exercise of reasonable care would, in the first instance, have protected him.” See also Equitable Mfg. Co. v. Biggers, 121 Ga. 381 (49 S. E. 271); Butler v. Standard Guaranty & Trust Co., 122 Ga. 371 (50 S. E. 132); Case Threshing Machine Co. v. Broach, 137 Ga. 602 (73 S. E. 1063). When the written order was accepted by Wayne Oil Tank & Pump Company it became a complete contract of sale, binding each party (Black v. Maddox, 104 Ga. 157, 161, 30 S. E. 723), and by its terms not subject to countermand. Notwithstanding this writing it is insisted that the purchaser countermanded the order before the goods were shipped, and for this reason should not be required to pay for them; but “what is writ is writ.” Without a lawful cause, “a written contract cannot be abrogated by one of the parties without the consent of the other.” Phosphate Mining Co. v. Atlanta Oil &c. Co., 20 Ga. App. 660 (6), 662 (93 S. E. 532); Draper v. Ga., Fla. & Ala. Ry. Co., 21 Ga. App. 707 (95 S. E. 16), and cases cited. The defendant further insists that the plaintiff breached the contract by not shipping the goods “in accordance with said order,” and “within a reasonable time.” To support this contention the defendant relies upon certain telegrams which passed between the parties several days prior to the signing of the written order and a conversation held between the representatives of the plaintiff and the defendant in Atlanta on the day the contract was signed. From what has already been said -in the discussion of this case, and from the authorities cited, it will readily be seen that the written contract was made without reference to these telegrams and independent thereof, and that they can play no part in the determination of the case; and therefore they were improperly admitted in evidence. Even if the conversation to which we have hereinbefore referred were not by the express terms of the contract merged therein or extinguished thereby, it would be so considered under the law. Rauschenberg v. Peeples, 30 Ga. App. 384 (118 S. E. 409); Holman v. Georgia Railroad, 67 Ga. 595.

As the contract was a valid one, was not breached by the plaintiff, and could not be countermanded by the defendant, and as the telegrams were erroneously admitted in evidence, the judgment must be Reversed.

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


author: Luke, J.

text:
    15588.
    Sharpe v. The State.
    Decided August 8, 1924.
    Indictment for seduction; from Toombs superior court — Judge Hardeman. February 29, 1924. •
    . Generally and also upon the ground that it was not alleged “what the false and fraudulent promises of marriage consisted of,” tile defendant demurred to the 'indictment, which alleged that Johnnie Sharpe, on a given date, “unlawfully and with force of ■arms- did by persuasion- and by false and-fraudulent promises of marriage seduce . . [a named person], a virtuous and unmarried female, and induce the'said . . [female], to yield to his lustful embrace and have carnal knowledge of him,- the said Johnnie Sharpe, contrary to the laws of said State, etc. The case .came to this court on exceptions to the overruling of "the, demurrer.

      Hnoch J. Giles, for plaintiff in error,
    cited: .Park’s Penal Code, § 378; 159 Ga. 153.

      Walter F. Grey, solicitor-general, Lankford & Rogers, contra,
    cited: Penal Code, § 954; 7 Ga. App. 102; 109 Ga. 540; 109 Ga. 153 (distinguished).
   Luke, J.

The indictment was not subject to the demurrer.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., coneur.


text:
    15660.
    Security Mutual Life Insurance Co. v. Bankers Trust & Audit Co.
    Decided August 8, 1924.
    Action on insurance policy; from Fulton superior court — Judge E. D. Thomas. May 13, 1924.

      E. P. Tutile, Anderson, Rountree & Crenshaw, for plaintiff in error.

      Branch & Howard, E. G. Jaclcson, contra.
   Broyles, C. J.

In a suit upon a policy of life insurance which contains a provision that “no assignment of this policy shall be binding upon the company unless it be filed uAth the company at its said Some Office. The company assumes no responsibility as to the validity of any assignment” (italics ours), where the amended petition, brought by an alleged transferee for value of the policy, fails to show that the alleged assignment was ever filed with the insurance company at its home office, and fails to show any waiver by the company of this provision of the policy, the petition does not set out a cause of action and should be dismissed on general demurrer. See, in this connection, 4 Joyce on Insurance (2d ed.), 3976, § 2329; 14 R. C. L. 1005, § 183; Thomas v. Metropolitan Life Ins. Co., 144 Ga. 367 (87 S. E. 303).

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    15661.
    Anderson v. The State.
    Decided August 8, 1924.
   Broyles, C. J.

1. It appears from the record that the only objection to the admission of the testimony, as complained of in the 1st ground of the amendment to the motion for a new trial, made at the time the evidence was offered, was that “it is immaterial and irrelevant.” The evidence was not subject to this objection.

2. There is no merit in the second ground of the amendment to the motion for a new trial.

3. In the light of all the facts of the ease, the admission of the evidence set forth in the third ground of the amendment to the motion for a new trial does not require another hearing of the case.

4. The court did not err in ruling out the testimony of three witnesses for the defense, that a day or two after the car in question was stolen they saw in Eorsyth county a similar car in the possession of a man named Otho Martin, and that Martin was trying to sell the car, there being no evidence whatsoever that this car was the same car that the defendant was charged with having stolen.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Larceny of automobile; from Fulton superior court — Judge Shurley presiding. May 2, 1924.

Application for certiorari was denied by the Supreme Court.

H. A. Allen, for plaintiff in error.

John A. Boylcin, solicitor-general, B. A. Stephens, Ralph H. Pharr, contra.


author: Beoyles, C. J.

text:
    15669.
    Smith v. Elder Lumber Company.
    Decided August 8, 1924.
    Lien foreclosure; from Bibb superior court — Judge Malcolm'D. Jones. April 19, 1924. .

      Jones, Parle & Johnston, for plaintiff in error.

      Martin, Martin & Baldwin, contra.
   Beoyles, C. J.

1. The admission of the testimony complained of in the motion for a new trial was not error, since it was elicited from the witness on cross-examination and was in rebuttal of testimony given by the witness on the direct examination.

2. A ground of the motion for a new trial complains that a statement of the judge, made in the presence and hearing of the jury, was prejudicial to the plaintiff in error and was an expression of his opinion upon questions of fact. It appears that the alleged prejudicial remark was made during a colloquy between the court and counsel as to the admissibility of certain evidence and the legal effect thereof, and it does not appear that the court expressed an opinion as to what had been proved in the case. Under these circumstances there was no error. Florida C. & P. Railroad Co. v. Lucas, 110 Ga. 121 (2) (35 S. E. 283); McCurdy v. Binion, 80 Ga. 691 (6) (6 S. E. 275).

3. In the light of all the facts of the case, and the entire 'charge of the court, none of the alleged errors in the charge requires another hearing of the ease.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15671.
    Carter v. The State.
   Bloodworth, J.

1. When read with the remainder of the charge of the court, the instruction that “it is not necessary that more than one witness be produced against the defendant, if the testimony establishes the charge made in the bill of indictment beyond a reasonable doubt,” is not erroneous for any reason alleged.

Decided August 8, 1924.

Selling whisky; from Appling superior court — Judge Highsmith. April 18, 1924.

J. B. Moore, for plaintiff in error.

Alvin V. Sellers, solicitor-general, contra.

2. There is no merit in any of the special grounds of the motion for a new trial, and there is evidence to support the verdict.

Judgment affirmed.

Broyles, O. J., and Luke, J., eoneur.


text:
    15672.
    Dunn v. The State.
    Decided August 8, 1924.
    Selling whisky; from Appling superior courts-Judge Highsmith. April 18, 1924.

      V. E. Padgett, for plaintiff in error.

      Alvin V. Sellers, solicitor-general, contra.
   Broyles, C. J.

The verdict was authorized by the evidence, and none of the special grounds of the motion for a new trial shows error requiring a reversal of the judgment below.

Judgment affirmed.

Luke and Bloodworth, JJ., eoneur.


text:
    15678.
    INGRAHAM v. THE STATE.
    The court did not err in allowing the solicitor-general to challenge a juror peremptorily immediately after he had accepted the juror; it appearing that no injury to the defendant could have resulted therefrom.
    Decided August 8, 1924.
    Adultery and fornication; from Hancock superior court — Judge Park, April 30, 1924.

      Wiley & Lewis, for plaintiff in error.

      Boyle Campbell, solicitor-general, A. Y. Clement, contra.
   Bloodworth, J.

This is a misdemeanor, but the jury seems to have been selected as in a felony ease. Why this was done does not appear. In the brief of plaintiff in error is the following: “The sole question for determination in this ease is whether the court erred iñ allowing the solicitor-general to peremptorily challenge a juror after the juror had been accepted by him.” The special ground of the motion for a new trial alleges that “during the selection and striking of the jury in said case, when ,the name of the twenty-first juror on the panel, whose name was Harry Binion, was called in its order, there still remaining at the time two more jurors to be selected for the trial of said case, Hon. Doyle Campbell, solicitor-general, accepted said juror, and said, ‘The juror is upon you.’ Whereupon, before counsel for defendant could accept said juror, and before one minute had elapsed after the acceptance of said juror by said solicitor-general, [he] .peremptorily challenged said juror without assigning any cause therefor, and stated: ‘The State ’ excuses Mr. Binion.’ Whereupon counsel for defendant objected to the peremptory challenge on the part of the solicitor-general, after he had accepted said juror, upon the ground that said peremptory challenge was made too late, and was made after said juror had been accepted by the State, and tendered to the defendant, and in less time than one minute after the State had accepted him.”

As it appears from the above recitals that no possible injury could have resulted to the defendant from the action of the solicitor-general, the court did not err in allowing him to peremptorily challenge the juror. Carr v. State, 7.6 Ga. 592 (2 c).

Judgment affirmed.

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


text:
    15679.
    Slappey v. The State.
    Decided August 8, 1924.
    Robbery; from Hancock superior court — Judge Park. April 30, 1924.

      B. II. Lewis, for plaintifi in error.

      Doyle Campbell, solicitor-general, A. Y. Clement, contra.
   Broyles, C. J.

1. Tlie conviction of the defendant not depending wholly upon circumstantial evidence, the refusal of the court to instruct the jury upon the law of circumstantial evidence was not error, no yyritten request for such a charge having been made.

2. While the evidence for the State, in view of all the facts of the case, ■ was weak and unsatisfactory, it cannot be held that the verdict was unsupported by any evidence, and, the finding of the jury having been approved by the trial judge, this court is powerless to interfere.

Judgment affirmed.

Luke and Bloodworth, JJ., eoneur.


author: Bkoyles, C. J.

text:
    15680.
    Askew v. Redwine Brothers.
    Decided August 8, 1924.
    Lien foreclosure; from Fayette superior court — Judge Searcy. May 7, 1924.

      W. B. Hollingsworth, for plaintiff in error.

      J. W. Culpepper, contra.
   Bkoyles, C. J.

1. In view of the note of the trial judge, grounds 1 and 2 of the amendment to the motion for a new trial are without merit.

2. A ground of the motion for a new trial is based upon the alleged newly-discovered evidence that after the jury had been charged, and before the verdict was returned, and during the noon recess of court, one of the jurors, while separated from the other jurors, talked with one of the defendants in error. This ground was supported by the affidavit of the plaintiff in error, who stated therein that, about three weeks after the trial of the case, the juror in question told him that he had so conversed with one of the defendants in error. This ground is without merit. A verdict cannot be impeached by an affidavit from a juror as to his misconduct during the trial of a case, nor by an affidavit from any other pierson that subsequent to the trial the juror told him of'such misconduct. Corbin v. McCrary, 22 Ga. App. 473 (5) (96 S. E. 445), and citations.

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

4. Not being fully convinced that the bill of exceptions was brought to this court for delay only, the request of the defendant in error that ten per cent, damages, as provided by section 6213 of the Civil Code of 1910, be assessed against the plaintiff in error, is denied.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Blood wobth, J.

text:
    15683.
    Quillian v. The State.
    Decided August 8, 1924.
   Blood wobth, J.

1. The 3d ground of the motion for a new trial is not complete within itself, and therefore, cannot be considered by this court. It fails to show that the evidence of defendant’s witness, which was excluded, was material, or that its exclusion was harmful to the accused, or that the State’s witness sought to be impeached by the excluded testimony was a material witness, or that his evidence was harmful to the accused. To ascertain these facts reference to other portions of the record would be necessary. Cason v. Dickson, 30 Ga. App. 336 (118 S. E. 72); Sherman v. Stephens, 30 Ga. App. 509 (5), 510 (118 S. E. 567), and cases cited.

2. There is no merit in any of the other grounds of the motion for a new trial.

3. There was evidence to authorize the verdict.

Judgment affirmed.

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

Larceny of cotton; from Whitfield superior court — Judge Tarver. May 17, 1924.

George G. Glenn, John C. Mitchell, for plaintiff in error. ,

Joseph M. Lang, solicitor-general, contra.


text:
    15694.
    Grimes v. The State.
    Decided August 8, 1924.
    Petition for certiorari; from Putnam superior court — Judge Park. May 21, 1924.

      W. T. Davidson, for plaintiff in error.

      Doyle Campbell, solicitor-general, 8. T. Wingfield, solicitor, A. Y. Clement, contra.
   Broyles, C. J.

1. Where the accused was convicted under an indictment charging him with selling and bartering, for a valuable consideration, intoxicating liquors, the verdict was not unauthorized because the witnesses for the State testified that they had “bought” whisky from the accused, without testifying anything about the consideration, whether it was money or something else of value. As was held in Howell v. State, 124 Ga. 698, an indictment for selling whisky need not allege that the sale was for a valuable consideration, as the words “for a valuable consideration” are merely surplusage; but where the indictment does so charge, proof that a witness “bought” whisky from the accused (nothing further appearing as to the consideration) is sufficient to import a valuable consideration, the word “bought” importing such a consideration. Howell v. State, supra, page 699; New Standard Dictionary.

2. The venue of the offense was sufficiently proved.

3. The trial of the accused was held in April, 1924, and the indictment charged that the offense was committed on December 1, 1924. No demurrer to the indictment was interposed, and upon the trial the evidence showed that the offense was committed in December, 1923. Held: The accused waived his right to raise the point'that the indictment charged that the offense was committed on a day subsequent to the finding of the bill and subsequent to the trial itself. Hill v. State, 41 Ga. 484 (2); Adkins v. State, 103 Ga. 5 (29 S. E. 432); Lanier v. State, 5 Ga. App. 472 (2) (63 S. E. 536); Gazaway v. State, 9 Ga. App. 194 (70 S. E. 978).

4. The verdict was authorized by the evidence and the court did not err in refusing to sanction the certiorari.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Bloodwoktii, J.

text:
    15696.
    Hall v. The State.
    Decided August 8, 1924.
    Possessing intoxicating liquor; from city court of Dublin — Judge Sturgis. May 3, 1924.

      'W. A. D ampler, for plaintiff in error.

      William Brunson,, solicitor, contra.
   Bloodwoktii, J.

1. There is no merit in any of the grounds of the motion for a new trial. Although the defendant made no statement, the judge charged the jury as if he had made one, but he quickly discovered his error and promptly withdrew that portion of the charge from the jury, stating to them that it had been inadvertently given.

2. The evidence is sufficient to support the verdict.

Judgment affirmed.

Broyles, O. J., and Luhe, J.,, concur.


text:
    15698.
    Richardson v. The State.
    Decided August 8, 1924.
    Indictment for adultery arid fornication; from Crawford superior court — Judge Malcolm D, Jones. May 17, 1924.
    The indictment-alleged that W. T. Richardson, a married man, had unlawful sexual intercourse with Mrs. Joyner, a widow. Hendricks Yaughn testified in part as follows: “I have seen the defendant at Mrs. Joyner’s house a good many times; he is there-pretty regular. On or about Christmas eve . . I saw the defendant at Mrs. Joyner’s house at night. . . Henry Proctor was with me. . . It was between 10 and 11 o’clock at night the defendant went to Mrs. Joyner’s house. There was a path that went through the yard at the back of the house, and he was coming down the path. . . He went in the room where a fire was. I saw Mrs. Joyner come out of the room whére the fire was and went in a little shed-room at the far end of the house, on the porch. She had on her top clothes. The defendant and Mrs. Joyner kinder went in the little room together. . . I then went under the house, under the shed-room in which they went, and remained there fifteen or twenty minutes. While under the room I could hear a movement of the bed in the room; I heard the bed making a fuss. At that time I had not seen the defendant and Mrs. Joyner come out of the room. I heard the springs of the bed making a fuss; I don’t know hardly how to describe it; the springs were making a fuss like they wore going up and down. Henry Proctor rvas under the house Avitli me at the time. We stayed under the house until Ave got pretty cold, and I got a stick and hit the side of the room, and they came out. I didn’t see them' come out, but heard them. We then went on off. . . I did not see the defendant any more that night. . . There was a baby in the room crying that night, and I got after the defendant about the baby crying, and he said he didn’t know anything about it, and he asked me what baby it Avas, and I told him he knew, and we talked on, and he says, ‘Boys, stop that now and not talk about that any -more.’ He did say if he had had his pistol he would have killed somebody out about the well. I didn’t go to the well. I suppose Mr. Eichardson was- living with Mrs. Eichardson at that time. . . Mrs. Joyner was a widow at that time. . . As far as I know, Mrs. Joyner’s girls and boys were in the house that night. . . I don’t know but that it was the children going to bed that made the bed-springs go up and down. I don’t know whose room that was.” Henry Proctor testified that he was with Hendricks Yaughn at the time mentioned by that witness, and that the defendant went in a little shed-room in Mrs. Joyner’s house, and he “could hear them talking in the room;” that he and Yaughn “stood up side of the house,” but he did not know whether either himself or Yaughn went under the room, and he did not know whether he heard a bed or not; he did not remember hearing a bed; that Yaughn hit the side of the.house with a stick, and “they came out of the room;” that he did not see them come out, but heard them, — heard two come out of the room, and then he (the witness) and Yaughn went home. He testified also: “I did not see any light in the little shed-room. I do not think there Avere any glass windows to the room. When they went in the little room we were coming up on the front side of the house. We were where we could see them. There was a light in the big house, but don’t remember seeing any in the little shed-room. . . Mrs. Joyner’s children were living with her. Her oldest son was nearly grown at the time. . . I cannot say what occurred in the house. I cannot say who was in the room with them.”
   Bkoyles, C. J.

The evidence raised a strong suspicion of the defendant’s guilt, but was not sufficient to authorize his conviction, and the court erred in overruling his motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur..

Another witness testified that when riding in a buggy on a public highway in the daytime he saw the defendant in the woods with Mrs. Joyner, where they were putting up a pasture fence, about two or three hundred yards from her house. “Mrs. Joyner 'was leaning back under some bushes, lying down, leaning back. It looked like Mrs. Joyner was on the ground, up under a bush. There was a little skirt of woods there. They were by themselves. The boys were about 150 yards from them; the woods were between them and the boys; the boys were putting up a fence, — Mrs. Joyner’s boys. Mrs. Joyner’s clothes were about her knees. When I first saw the defendant he was standing up. I saw him just as he was getting up. It looked like he got up from just about where she was at under those bushes. . . The women wore their dresses pretty short at that time. . . The defendant got up from about where she was at and come out and went to packing dirt around the posts. . . I guess that anybody that had eyes could have seen them. . . I cannot say whether Mrs. Joyner’s clothes were short or turned up, but I know they were just about to her knees. . . I have seen her with short dresses.”

Another witness testified that he had seen the defendant sitting in Mrs. Joyner’s lap in a single-seat Ford car driven by her son, who was more than twenty years old, and he “didn’t think anything of it;” he had seen men and women riding that way before. The defendant, in his statement at the trial, denied that he ivas guilty.

Citations by counsel: 14 Ga. App. 441 (1); 15 Ga. App. 487; 16 Ga. App. 218. See 30 Ga. App. 10.

W. D. Aultman, W. 0. Cooper Jr., for plaintiff in error.

Charles H. Garrett, solicitor-general, contra.


text:
    15703.
    SHADRICK v. THE STATE.
    The allegation that the accused operated an automobile “without then and there having fastened on the rear of said automobile, in a position to be plainly visible, the number plate assigned to said automobile,” was not subject to the demurrer; and the indictment was not demurrable on other grounds stated.
    Decided August 8, 1924.

      Indictment for violation of automobile law; from Quitman superior court — Judge Eve presiding. April 22, 1924.
    The indictment charged E. L. Shadrick with “the offense of misdemeanor; for that . . on the 9th day of January, 1924, in the county aforesaid,” he did “unlawfully and with force of arms use and operate a motor-vehicle, to wit, an automobile, on the streets and highways of said State, to wit, upon the public street in the town of Georgetown, Ga., known, as Main Street, and upon the public road known as Eufaula and Cuthbert public road, leading from Eufaula, Ala., to Cuthbert, Ga., without then and there having fastened on the rear of said automobile, in a position to be plainly visible, the number plate assigned to said automobile; contrary to the laws of said State,” etc. The demurrer was on the grounds: (1) No offense is set forth. (2) The indictment is too indefinite and uncertain in the allegation as to visibility of number plate; the phrase “plainly visible” is capable of too many and varied interpretations; what might be visible to a child by moonlight could probably be seen only with difficulty by an old man at midday, and the allegation is so indefinite as to make the question of „ criminality dependent on the idiosyncrasies of the men constituting the court and jury. (3) “Because all of the objections raised in paragraph 2 hereof also apply to § 828(c) of Park’s Ann. Code, and to § 828 (bb) of Park’s Ann. Code, vol. 8, wherein it is provided that every vehicle shall display number plate in rear ‘plainly visible,’ etc.; and for further reason that said sections do not provide that it is the duty of any particular person as owner, driver, passenger to so display such number plate.” (4) “Because § 828 (x) of Park’s Code, vol. 8, provides that the owner of a motor-vehicle may have until March 1st of each year to provide such vehicle with number plate, whereas said bill of'indictment sets forth an offense as of January 9th, 1924.”

      J. B. McDonald, for plaintiff in error.

      B. T. Gastelloio, solicitor-general, R. R. Arnold, B. G. Rill, contra.
   Bloodworth, J.

1. The defendant specifically abandons the assignment of error based upon the overruling of his plea in abatement, and also the assignment of error based upon the overruling of his motion in arrest of judgment.

2. The court properly overruled the demurrer to the indictment “upon each and every ground therein.”

3. It is not insisted that the verdict is without evidence to support it.

Judgment affirmed.

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


text:
    15704.
    Smith v. The State.
    Decided August 8, 1924.
    Manslaughter; from Carroll superior court — Judge Roop. May 17, 1924.
    Application for certiorari was denied by the Supreme Court.

      Smith & Millican, S. Holderness, for plaintiff in error.

      W. Y. Atkinson, solicitor-general, contra.
   Broyles, C. J.

The verdi'et was authorized by the evidence and none of the grounds of the amendment to the motion for a new trial shows reversible error.

Judgment affirmed.

Jjuhe and Bloodworth, JJ., eonour.


text:
    15708.
    HENDRICKS v. THE STATE.
    The indictment in this ease, which charges embezzlement by a bank officer, was drawn under section 186 of the Penal Code of 1910, and the court erred in giving in charge to the jury section 20 of title XX of the banking laws of 1919 (Ga. L. 1919, p. 216), and charging that the indictment was drawn under the latter section.
    Decided August 8, 1924.
    Indictment for embezzlement; from Taylor superior court-judge Munro. December 4, 1923.

      Gilbert G. Robinson, Jere M. Moore, Brown Marshall, Homer Beeland, O. T. Montfort, for plaintiff in error.

      W. R. Flournoy, solicitor-general, contra.
   Bloodworth, J.

1. Section 186 of the Penal Code of Georgia provides that any officer of any bank “who shall embezzle, steal, secrete, or fraudulently take and carry away any money, paper, book, or other property or effects, shall be punished by imprisonment and labor in the penitentiary for not less than two years nor longer than seven years.” The indictment in this case charged that the defendant did “unlawfully and fraudulently embezzle, secrete, steal and carry away the sum of $22,581.15, . . which said sum of money so abstracted, secreted, embezzled, and taken was by making false entries on the books of said bank, by uttering and giving checks on said bank, and abstracting sums of money at various times and various amounts during the years 1918, 1919, and 1920, and by making false reports of the money he had and controlled for said bank, and by other means unknown to the grand jurors, all of which was with the intent to embezzle, steal, and fraudulently take and carry away,” etc. It will be noted from the above that the real charge in the indictment is that the defendant embezzled a stated amount of money, and that the remainder of the charges are merely descriptive of how he embezzled the money; and the indictment was evidently drawn under the code section (186) quoted above. However, the court charged the jury as follows: “The defendant is indicted under the following code section which I will read to you: 'Any officer, director, agent, clerk or employee of any bank, who embezzles, abstracts, or wilfully misapplies any of the monies, funds, securities, or credits of the bank, or who issues or puts forth any certificates of deposit, draws any draft or bill of exchange, makes any acceptance, assigns any note, bond, draft or bill of exchange, mortgage judgments, decrees or executions, or who makes use of the name of the bank in any manner, with intent in either case to injure or defraud the bank, or any person, firm or corporation, or to deceive any officer of the bank or the superintendent of banks, or any examiner, or any person who with like intent aids or abets any such officer, director, agent, clerk or employee in any violation of this section, shall be punished by imprisonment and labor in the penitentiary for not less than one year nor more than ten years.’ ” See Banking Laws, 6a. L. 1919, p. 216, art. XX, sec. 20; Park’s Penal Code, Supp. (1922), § 202 (t).

We think this charge was error: 1st. Because the section charged is not the one under which the indictment is drawn. 2d. Because it includes matters with which the defendant was not charged in the indictment, and is broader than section 186 of the Penal Code, under which the indictment was drawn. As stated in the notes on page 105 of Park’s Banking Laws as amended, section 20 of the banking laws of 1919 “is considerably broader and more comprehensive than section 186 of the Penal Code, and includes wilful misapplication as well as embezzlement.” 3d. Because the section charged was not the law until January 1, 1920 (See Ga. L. 1919, art. 21, sec. 1, p. 222), and the indictment charged the defendant with embezzlement during 1918, 1919, and 1920, and under the evidence some of the alleged acts of embezzlement might have occurred in each of these years. This being true, and the section charged not being retroactive, it could not apply to such “unlawful acts as were alleged to have been committed during 1918 and 1919.' Under the Penal Code, § 18, “All crimes shall be prosecuted and punished under the laws in force at the time of the commission thereof, notwithstanding the repeal of such laws before such trial takes place.” (Italics ours.) 4th. Because the maximum punishment under the law charged was ten years, and the maximum punishment under the law of force during two-thirds of the time charged in the indictment was only seven years. See Jordan v. State, 38 Ga. 585.

2. As a new trial must follow the foregoing ruling, we will not consider the rulings of which complaint is made in the other grounds of the motion for a new trial, as the precise questions will not likely reappear when the case is again tried.

Judgment reversed.

Broyles, O. J., and Lulce, J., concur.


text:
    15709.
    Hamilton v. The State.
    Decided August 8, 1924.
    Driving automobile while intoxicated; from Barrow superior court — Judge Russell. February 2, 1924. ’

      Quillian & Drake, for plaintiff in error.

      Pemberton Cooley, solicitor-general, contra.
   Bkoyles, C. J.

The general grounds of the motion for a new trial are expressly abandoned in the brief of counsel for the plaintiff in error, and the amendment to the motion is without merit.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Bloodwobtii, J.

text:
    15724.
    Porter v. The State.
    Decided August 8, 1924.
    Assault and battery; from city court of Hall county — Judge Sloan. June 7, 1924.

      J. O. Adams, for plaintiff in error.

      E. E. Kenyon, solicitor, .contra.
   Bloodwobtii, J.

The motion for a new trial in this case is based on the general grounds only. This court and the Supreme Court have repeatedly and consistently held that where there is any evidence to support a verdict, and no error of law is complained of, the discretion of the trial judge will not be interfered with by the appellate court because of alleged insufficiency of evidence. In this case the verdict is not without evidence to support it.

Judgment affirmed.

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


author: Broyles, O. J.

text:
    15725.
    Rinehart v. The State.
    Decided August 8, 1924.
    Accusation of drunkenness on highway; from city court of Summerville — Judge Rivers. June 4, 1924.
    The entire testimony of the only witness introduced by the State was as follows: “I went to Berry ton on the day of the hog sale and I saw the defendant, Taylor Rinehart, that day. I did not know him then, but this defendant looks like the man I saw drunk that day. He.is the man. There had been a car wreck about a half mile below Berryton. He was carrying and taking on. Two of the other boys in the car had a fight and one of them had gotten knocked down, and this defendant was crying and taking on over him. I smelt liquor. He had his shirt tail out.” Witnesses for the defendant testified that they were with him “on the day of the hog sale” and at the place where the ear in which he had been riding was wrecked, and that he was not drinking and not under the influence of liquor. It was testified that “he was not doing anything except walking around with the crowd and talking as the others were.”
   Broyles, O. J.

The accused was convicted of being in an intoxicated condition upon a public highway. The evidence failed to show that his intoxication “was then and there made manifest by boisterous and by indecent condition and acting,' and by the use of vulgar, profane and unbecoming- language, and loud and violent discourse,” as charged in the indictment. The verdict of guilty, therefore, was unauthorized and the court erred in refusing the grant of a new trial.

Judgment reversed.

Luke and Bloodnoorth, JJ., concur.

J. M. Bellah, for plaintiff in error,

cited :• 13 Ga. App. 71; 25 Ga. App. 425.

JS. 8. Taylor, solicitor-general, contra.


author: Blood worth,. J.

text:
    15732.
    Neal v. The State.
    Decided August 8, 1924.
    Forgery; from Bibb superior court — Judge Malcolm D. Jones. June 7, 1934.

      W. 0. Cooper Jr., for plaintiff in error.

      Charles E. Garrett, solicitor-general, contra.
   Blood worth,. J.

1. For no reason assigned did the court err in admitting in evidence the checks of which complaint is made in the motion for a new trial.

2. In view of the qualifying note of the trial judge, there is no merit in that ground of the motion which alleges that the court erred in refusing to declare a mistrial.

3. When considered in connection with the remainder of the charge, there is no error in the following excerpt therefrom: “Under the law, if a person should be found in possession of a paper, a cheek that is forged, and it appears beyond a reasonable doubt that he uttered or published or attempted to pass, or did pass, such forged paper, and that he was the sole beneficiary, the only one to be benefited by such forged paper, and there are not circumstances in the case pointing to anyone, else as the forger, or anyone else who would be benefited by the circulation or passage dr uttering of such forged paper, then you would be authorized to conclude that a person in the possession of such forgery, and the person uttering and publishing or attempting to pass, either by himself or through others, was the real one who forged the paper. That is a presumption which you are authorized to draw, but you are not compelled to draw it.” Mitchell v. State, 64 Ga. 448; Womble v. State, 107 Ga. 666 (4) (33 S. E. 630).

4. There is ample evidence to support the verdict.

Judgment affirmed.

Broyles, O. J., and Lulce, J., concur.


text:
    15733.
    Reeves v. The State.
    Decided August 8, 1924.
   Broyles, O. J.

Under the evidence and the defendant’s statement to the jury, his conviction was demanded, and none of the special grounds of the motion for a new trial requires another hearing -of the case.

Judgment affirmed.

Lulce and Blood/worth, JJ., concur.

Violating liquor law; from Haralson superior court — Judge Irwin. May 26, 1924.

Glande V. Driver, lor plaintiff in error.

F. 8. Griffith, solicitor-general, contra.


text:
    15738.
    Cohen v. The State.
    Decided August 8, 1924.
    Pointing pistol at another; from Bryan- superior court — Judge Sheppard. April 7, 1924.

      W. F. Slater, for plaintiff in error.
   Bloodworth, J.

The motion for a new trial in this ease contains no special grounds. The determination of questions of fact is the especial province of the jury. In this case the jury decided the questions of fact in favor of the State, and upon the evidence in the record this court cannot hold that the trial judge erred in refusing to grant a new trial on the general grounds.

Judgment affirmed..

Broyles, O. J., and LuJce, J., concur.