text:
    19442.
    SEWELL v. ARMOUR FERTILIZER WORKS INC.
    Decided April 9, 1929.

      J. B. McDonald, for plaintiff in error. Beclc & Beclc, contra.
   Bloodworth, J.

This was a suit on an unconditional promissory note given by the plaintiff in error for rent. She filed a plea. By agreement the case was submitted to the judge, to pass upon the law and the facts without the intervention of a jury. The defendant admitted a prima facie case and assumed the burden. The bill of exceptions recites in part that “The plaintiff moved to strike and rule out all the answers of Mrs. Willie Blanche Sewell that added to, took from, or varied the terms of the written contract. The court, over the objection of the defendant, struck all the answers and excluded from the evidence all testimony of Mrs. Willie Blanche Sewell which varied, added to, or took from the terms of the written contract, and entered up judgment in favor of the plaintiff for the full amount of the principal, interest, and attorney’s fees sued-for in said suit.” The second paragraph of the decision in Little v. Lary, 12 Ga. App. 754 (78 S. E. 470), is as follows: “The rental contract being in writing and being clear and unambiguous, parol evidence was not admissible to add to or vary its terms. Civil Code (1910), § 4268.” The court did not err in its rulings either as to the pleadings or in excluding evidence, and the evidence demanded the verdict.

Judgment affirmed.

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


source: Caselaw Access Project

author: Broyles, C. J.

license: Public Domain

text:
    19445.
    MULL v. THE STATE.
    Decided April 9, 1929.

      Henry & Jackson, for plaintiff in error.

      J. F. Kelly, soliciior-generad,, M. Neil Andrews, solicitor-general, Dean Owens, contra.
   Broyles, C. J.

The indictment charged that Ered Mull did “break and enter the dwelling house of J. B. Jackson, a place where valuable goods were contained and stored, with intent to commit a larceny therein; and the said Fred Mull then and there, after having broken and entered said house as aforesaid, did wrongfully, feloniously, fraudulently, and privately take and carry away from said dwelling house, with intent to steal same,” certain articles of value (the articles being specified and their value stated in the indictment). Upon the trial the undisputed evidence showed that although the house belonged to J. B. Jackson, it had not been his dwelling house for twenty years. The jury returned a verdict of guilty of larceny from the house, and the defendant’s motion for a new trial was denied.

There was a fatal variance between the allegations in the indictment and the proof, and the conviction of the accused was contrary to law and the evidence. Lindsey v. State, 9 Ga. App. 299 (2) (70 S. E. 1114). The case of Harrison v. State, 74 Ga. 801, cited in the brief of the solicitor-general, is distinguished by its facts from the case at bar.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


author: Luke, J.

text:
    19446..
    Caswell v. The State.
    Decided April 9, 1929.

      M. U. Mooty, for plaintiff in error.

      L. L. Meadors, solicitor, contra.
   Luke, J.

The only special ground of the motion for a new trial alleges error in failure to charge the law of circumstantial evidence. The defendant’s conviction not being wholly dependent upon circumstantial evidence, this was not error.

The evidence authorized the verdict.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    19447.
    Hayes v. The State.
    Decided April 9, 1929.

      Clarence T. Quyion, for plaintiff in error.

      John C. Hollingsworth, solicitor-general, W. C. Neville, solicitor-general, contra.
   Bloodworth, J.

The evidence authorized the defendant’s conviction, and • the motion for a new trial, which was based on the general grounds only, was properly overruled.

Judgment affirmed.

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


text:
    19448.
    Mitchell v. The State.
    Decided April 9, 1929.

      Tillou Ton Nunes, Irma Ton Nunes, for plaintiff in error.

      H. P. Phillips, solicitor, contra.
   Broyles, C. J.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    19452.
    REID v. CITY OF ATLANTA.
    Decided April 9, 1929.

      Breen, Finch & Padgett, for plaintiff.

      J. L. May son, G. S. Winn, J. G. Savage, for defendant.
   Luke, J.

The only question raised by the record in this case is whether or not. the trial judge erred in sustaining the general demurrer to the petition, which is in substance as follows:

“The petition of Harry Reid, by C. L. Reid- as next friend, shows to the court: 1. That the defendant herein named is the City of Atlanta, a municipal corporation, etc. 2. That the defendant has injured and damaged your petitioner in the sum of $5,000, by reason of the facts hereinafter set out. 3. That the defendant is the owner of an amusement park, located in Atlanta, State and county aforesaid, commonly known as Piedmont Park. 4. That the primary object of the said park is pecuniary gain to the defendant in.its operation. 5. That therein the defendant maintains and operates the following sports, devices, and amusements for a fee, admission, or charge: golf links wherein a fee is charged each player per round; tennis courts wherein each player is charged a fee for each hour played; a riding course wherein the defendant rents ponies owned by it, for a charge or fee per circuit of the track; a lake which is reputed to contain fish, and for which a charge is made upon each angler to fish therein; that the defendant rents boats at a charge or fee per hour; that the defendant maintains a swimming pool at one end of the lake, for use of which bathers are charged admission thereto; that adjacent to the said building the defendant maintains a building wherein it leases concessions to vendors of wieners, popcorn, peanuts, ice cream and soda water, bathing suits and' other equipment; that upon the golf links there is a building wherein the defendant rents out concessions for the sale of food and drinks, and for the rent and sale of golf accessories. 6. That there is, contiguous and adjacent to the foregoing enterprises, several acres of land which are purely incidental to the operation of the foregoing amusements and devices for profit. 7. That the said park is not maintained primarily for the use of the public, intended as a place of resort for pleasure and promotion of health of the public at large, but primarily for the purpose of profit. 8. That the said amusements, sports and devices can not be used or enjoyed by a person except upon payment of the fee demanded by the defendant in each case, and of each person. 9. That the City of Atlanta has charter authority to operate an amusement park. 10. That on or about July 18, 1928, at 2:30 p. m., your petitioner had paid the admission charge to enter the swimming pool of the defendant. 11. That in the said pool the defendant maintains a slide for the use of such persons who are lawfully in the said pool. 12. That the slide was constructed of sheets of metal which overlapped, and the said metal had, through continued use, cracked, so that an opening therein was created whenever the weight of a body passed down the slide. 13. That the slide was defective and of a dangerous nature. 14. That the defendant had actual andconstructive knowledge of the dangerous condition of the said slide for a period of more than two weeks prior to the injury hereinafter complained of. 15. That at the said time- and place plaintiff entered the said slide, which was exposed to the use of bathers;, without warning of the dangerous and defective condition of the slide. 16. That in descending the same, petitioner’s hand became lodged in the opening in the metal set out above, and ..the little finger of plaintiff’s right hand was jerked, snatched, and violently torn off. 17. That the loss of the said finger caused plaintiff intense pain, etc. 18. That the defendant was negligent in the following particulars: (a) in failing to repair the slide; (6) in failing to maintain a barrier or to warn plaintiff of the defective condition of the slide. 19. That plaintiff notified the defendant of his claim for damages more than thirty days prior to the filing of this suit. Wherefore petitioner prays that process issue,” etc.

A careful analysis of the foregoing petition satisfies us that, construed as a whole and most strongly against the plaintiff, it is subject to general demurrer, for the reason that it shows that the park was maintained primarily for the use of the public as a place of resort for pleasure and promotion of the health of the public at large, and was therefore operated in virtue of the governmental powers of the municipality. In this regard the allegations of the petition at bar make a stronger case than those in Jones v. City of Atlanta, 35 Ga. App. 376 (133 S. E. 521). In this connection, see Watson v. City of Atlanta, 136 Ga. 372 (71 S. E. 665), where, in sustaining a general demurrer to a petition in an action for damages for personal injuries alleged to have been sustained in consequence of being run down by an ambulance, the court said: “Had the distinct allegation been made that the hospital was established and operated for private gain and profit by the city, quite another case would have been made from that presented in this petition.”

However, “municipal corporations are creatures of statute, and only those powers granted, either expressly or by fair implication, can be exercised by them.” Cannon v. Americas, 11 Ga. App. 98 (74 S. E. 702). What might be termed a corollary of the foregoing truism is the rule that a municipality is not liable for the ultra vires acts and negligence of its officers and agents. See 43 C. J. 933, § 1711; Roughton v. Atlanta, 113 Ga. 950 (39 S. E. 316).

In our opinion, the allegation in paragraph 9 of the petition that “the City of Atlanta has charter authority to operate an amusement park” falls far short of alleging that the city had charter authority to operate an amusement park primarily as a source of revenuej and, for this reason, we think the petition is fatally defective.

In conclusion, we can not do better than quote the headnotes of the decision in the ease of Gornelisen v. Atlanta, 146 Ga. 416 (91 S. E. 415). They are as follows: “1. Where a city maintains a park primarily for the use of the public, intended as a place of resort for pleasure and promotion of health of'the public at large, its operation is in virtue of the governmental powers of the municipality, and no municipal liability would attach to the non-performance or improper performance of the duties of the officers, agents, or servants of the city in respect to keeping the park safe for use by members of the general public. It would not affect the public character of the duties of the officers, agents, or servants of the city that a purely incidental profit might result to the city from its operation or management of the park. 2. But if the city, having charter authority, maintain the park primarily as a source of revenue, the duty of maintaining it in a safe condition for the use for which it is intended would be ministerial, and municipal liability would attach for breach of such duty.”

Judgment affirmed.

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


text:
    19454.
    Epstein et al. v. Esserman et al.

    Decided April 9, 1929.

      Wright, Wright & Oovingion, for plaintiffs.

      Maddox, Matthews & Owens, for defendants.
   Broyles, C. J.

1. Under the pleadings the court did not err in ruling that the defendants had the right to open and conclude the argument.

2. In the light of the facts of the ease and the charge of the court, none of the special grounds of the motion for a new trial, complaining of certain excerpts from the charge and of the failure to charge certain things, show error requiring a new trial.

3. The verdict was authorized by the evidence.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    19456.
    HURST v. THE STATE.
    Decided April 9, 1929.

      8. F. Memory, for plaintiff in error.

      8. Thomas Memory, solicitor, contra.
   Luke, J.

The accusation in this case alleges that the defendant, Henry Hurst, did “run into the wagon of one Everett King, and cause an accident thereby, while he, the said Henry Hurst, was operating a motor-vehicle on said highway, and did fail to render to the said Everett King such assistance as was reasonable or necessary, contrary to the laws,” etc. The defendant demurred to the accusation, on the following grounds: “1. That said accusation fails to charge any criminal offense. 2. That said accusation is so vague, indefinite, general, and uncertain as not to put the defendant on notice as to what he is required to defend. 3. That that part of the act of Aug. 23, 1927 (Ga. L. 1927, p. 238), section 14, as provides that the operator of a motor-vehicle, in case of accident, shall render ‘such assistance as may be reasonable and necessary’ is void for uncertainty and indefiniteness, and therefore not capable of enforcement, and said accusation, being based on that part of said law, is void. 4. That the said law, that is, section 14 . . , and that part of said section which provides that the operator of a motor vehicle, in case of an accident, shall render ‘such assistance as may be reasonable and necessary,’ is null and void for lack of certainty in defining the acts thereby prohibited and declared unlawful, and the accusation, being based solely upon said part of said law, is null and void.” The court overruled the demurrer and the defendant excepted pendente lite, and proceeded to trial and was convicted. In his bill of exceptions he “specifically assigns error on the judgment of the court overruling his said demurrer.”

It will be noted that the accusation does not allege that the defendant knowingly, or intentionally, or negligently, or recklessly, or wantonly, or wilfully, or maliciously ran into the wagon of Everett King; and running into the wagon is not made the basis of the prosecution. The basis of the action is that, after running into the wagon, the defendant failed to render King “such assistance as was reasonable or necessary.” The language last quoted is too vague, indefinite, and uncertain to be capable of enforcement, and therefore can not properly form the basis of a criminal action; and for this reason the court erred in overruling the demurrer to the accusation.

In the case of Hayes v. State, 11 Ga. App. 371 (2) (75 S. E. 523), this court held that “So much of the act approved Aug. 13, 1910 (Acts 1910, p. 92), regulating the use of automobiles, as undertakes to make penal the operation of an automobile on one of the highways of this State ‘at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of such highway, or so as to endanger the life or limb of any person or the safety of any property,’ is too uncertain and indefinite in its terms to be capable of enforcement.” In tbe first part of tbe same headnote it is said: “A penal law which is of doubtful construction and in which the act denominated as a crime is described in terms so general and indefinite as to make the question of criminality dependent upon the idiosyncrasies of the men who may happen to constitute the court and jury, and is of such a nature that honest and intelligent men are unable to ascertain what particular act it seeks to condemn, is incapable of enforcement, and will be held to be null and void.” In the opinion in that case Judge Pottle cited an Arkansas decision holding that a statute making it a misdemeanor to “commit an act injurious to the public health or public morals . . ” is void for uncertainty; a Kentucky decision holding that the language “just or reasonable rate of toll” was unconstitutional; a Texas decision holding that a statute making penal the combining of two or more persons for the purpose of “mob violence” was invalid, the statute not designating what acts constituted mob violence; a Wisconsin decision holding that “A law which takes one’s property or liberty as a penalty for an offense; must so clearly define the acts on which the penalty is denounced that no ordinary person can fail to understand his duty and the departure therefrom which the law attempts to make criminal, since one can not be said' to wilfully violate a statute which is so contradictory or blind that he must guess what his duty is thereunder” (italics ours); and a decision of the United States Supreme Court holding that “It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government.”

Applying the reasoning in the Hayes case to the case under consideration, we would ask, who is to determine whether or not assistance is necessary, and, if so, how much assistance would be reasonable ? There would be a diversity of opinion among men on these questions where no- rule is laid down to guide them. In Carter v. State, 12 Ga. App. 432 (78 S. E. 206), this court said: “In so far as the General Assembly attempted to penalize the operation of automobiles at an unreasonable rate of speed, the act of 1910 is void, because there is no measure by which the unreasonableness can be ascertained. The law fails to define what is reasonable or unreasonable, and hence the definition of the offense is too vague and general to constitute a crime. The degree of unreasonableness that may be deemed criminal' not being fixed by law, but being left to the varying opinions of different-juries, the portion of the act referring to the speed is not uniform in its operation, and for that reason is unenforceable.” In Hale v. State, 21 Ga. App. 658 (94 S. E. 823), the Court of Appeals held that “So much of the act approved November 30, 1915 (Ga. L. Ex. Sess. 1915, p. 113), regulating the use of automobiles, as undertakes to make penal the failure of any operator of a motor-vehicle, when meeting any vehicle approaching in the opposite direction, to Turn his vehicle to the right so as to give one half of the traveled roadway, if practicable, and a fair opportunity to the other to pass by without unnecessary interference/ is too uncertain and indefinite in its terms to be capable of enforcement.” In Beavers v. Inman, 35 Ga. App. 405 (3) (133 S. E. 275), it was held that “The rule of the police department of the City of Atlanta providing that the chief of police ‘will, as often as possible, pay frequent visits at unusual hours to various portions of the city, that he may be able to know, of his own knowledge, that the officers and men are performing their duties/ is too uncertain and indefinite in its terms to be capable of a strict and literal enforcement.” See also Strickland v. Whatley, 142 Ga. 802 (83 S. E. 856); Western & Atlantic R. Co. v. Smith, 145 Ga. 280 (88 S. E. 983); Jones v. State, 151 Ga. 506 (107 S. E. 765); Howard v. State, 151 Ga. 847 (108 S. E. 513). In the case last cited the Supreme Court held that the language, “reasonable and safe,” as used in a statute relative to the operation of an automobile, was just as indefinite as the language “reasonable and proper,” and, because of this indefiniteness, that the portion of the statute containing that language was invalid. The language “reasonable or necessary,” as used in the statute now under consideration, is likewise too indefinite.

It is not amiss to say, even though it be obiter, that while we are impelled by the decisions of the Supreme Court, this court, and the fundamental principles of our law to hold -that the language in question can not be the basis of a criminal prosecution, yet such language is humanitarian in its nature and salutary in its inception; and where, under a proper accusation or indictment, it is proved that a defendant, knowing of an injury that he has inflicted, deliberately refuses to stop or assist his victim, this fact may be considered as evidence of a malignant heart, and as an aggravating circumstance which may be taken into consideration in determining the defendant’s guilt and fixing his punishment.

Since the accusation was null and void, the further proceedings were nugatory, and it is unnecessary to decide the other issues presented for consideration.

Judgment reversed.

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


text:
    19457.
    Jones v. The State.
    Decided April 9, 1929.

      E. L. Forrester, for plaintiff in error.

      T. O. Marshall, solicitor, contra.
   Bloodworth, J.

The defendant was convicted, on circumstantial evidence, of maliciously maiming and killing a mule. The jury, by their verdict, said that the evidence excluded every reasonable hypothesis save that of the guilt of the accused; and the trial judge approved their verdict. This court can not say that the motion for a new trial, based on the general grounds only, was improperly overruled.

Judgment affirmed.

Broyles, O. J., and Luhe, J., coneur.


author: Broyles, O. J.

text:
    19458.
    Pennington et al. v. The State.
    Decided April 9, 1929.

      Karris & Smith, Peebles & Bowden, for plaintiffs in error.

      A. 8. Bradley, solicitor-general, M. L. Gross, solicitor-general, contra.
   Broyles, O. J.

The accused were convicted of manufacturing whisky. The only evidence directly connecting them with that offense was the testimony of an accomplice, and his testimony was not corroborated by any other evidence whatsoever that directly, and independently of his testimony, connected them with the crime of making whisky. It follows that the verdict was unauthorized and that the refusal to grant a new trial was error.

Judgment reversed.

Luhe and Bloodworth, JJ., concur.


text:
    19459.
    Story v. The State.
    Decided April 9, 1929.

      M. G. Barwiclc, for plaintiff in error.

      A. 8. Bradley, solicitor-general, M. L. Gross, solicitor-general, contra.
   Luke, J.

The defendant’s conviction of manufacturing intoxicating liquor was authorized by the evidence, and his motion for a new trial, which was based on the general grounds only, was properly overruled.

Judgment affirmed.

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


text:
    19460.
    DAVIS v. THE STATE.
    Decided April 9, 1929.

      M. B. Eubanks, for plaintiff in error.

      J. F. Kelly, solicitor-general, M. Neil Andrews, solicitor-general, Dean Owens, contra.
   Bloodworth, J.

The verdict has the approval of the trial judge, and we can not say that there is no evidence to support it. In Rogers v. State, 101 Ga. 561 (28 S. E. 978), Justice Cobb said: "Applications for new trials on the ground that the verdict of the jury is contrary to evidence are addressed to a sound legal discretion to be exercised by the trial judges. When this discretion has been exercised and the motion for a new trial overruled, this court will not interfere when there is any evidence which would justify the jury in reaching the conclusion which is set forth in the verdict. While in many cases we would probably not have rendered the verdict returned, and, if we "were authorized to pass upon the case as on appeal, would render here a different judgment, still under the established practice of this court as required by the law of the State, we can not overrule a trial judge, who, fresh from the atmosphere of the trial, sends to us a record in which he endorses the finding of the jury which tried the case in his presence. This is true even in cases where the evidence might be described as weak, unsatisfactory and doubtful. The wisdom and discretion of the trial judge is sufficient for us to endorse his judgment in cases of this character.”

Judgment affirmed.

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


author: Bkoyles, C. J.

text:
    19461.
    Jones v. The State.
    Decided April 9, 1929.

      M. B. Eubanks, for plaintiff in error.

      J. F. Kelly, solicitor-general, M. Neil Andrews, solicitor-general, Dean Owens, contra.
   Bkoyles, C. J.

1. The motion to dismiss the bill of exceptions is denied. 2. The evidence amply authorized the verdict, and none of the special grounds of the motion for a new trial show error requiring a new trial.

Judgment affirmed.

Luke cmd Bloodworth, JJ., concur.


text:
    19464.
    Farmers Mutual Co-operative Fire Insurance Co. v. Kilgore.
   Broyles, C. J.

1. “Where the constitution of a relief association provides that 'No member shall be entitled to benefits who has not paid dues and assessments in advance,’ and that ' any member whose dues remain unpaid for two months shall be dropped from the roll and lose' all claim to membership,’ neither of these results will ipso facto amount to a forfeiture of the benefits. There must be some judicatory or affirmative action by the association, declaring the member suspended or expelled. . . Where the secretary of the association has simply marked the defaulting member as ‘ suspended,’ this does not amount to affirmative action of the association.” Starnes v. Atlanta Police Protective Association, 2 Ga. App. 237 (58 S. E. 481).

{a) “Even if, under the by-laws of a benevolent fraternal association or assessment insurance society, no affirmative action is necessary in order to enforce the forfeiture of a policy of insurance, for non-payment of dues or assessments, as the case may be, the subsequent demand for the payment of such dues or assessments is a waiver of the forfeiture, and an acknowledgment that the delinquent policy-holder is still entitled to the benefits conferred by his contract with the association.” Farmers &c. Association v. Elliott, 4 Ga. App. 342 (61 S. E. 493).

Decided April 9, 1929.

J. B. Hutcheson, for plaintiffs in error, Astor Merritt, contra.

2. “A forfeiture occurs, if it results at all, immediately upon a breach of the condition of the contract on which it is based; and, forfeitures not being favored in law, a waiver of the forfeiture, once made, can not be recalled. The demand for payment in full of a future premium subsequently to the breach of a condition which would have entitled the insurer to insist upon a forfeiture of the contract will be held to be a waiver of the forfeiture, and be treated as an acknowledgment that the delinquent policy-holder is still entitled to the benefits conferred by his contract.” Williams v. Empire &c. Insurance Co., 8 Ga. App. 303 (7) (68 S. E. 1082).

3. “Policies of insurance will be liberally construed in favor of the object to be accomplished, and conditions and provisions of every contract of insurance will be strictly construed against the insurer who prepares and proposes the contract. If a policy of insurance is capable of being construed in two ways, that interpretation should be placed upon it which is most favorable to the insured, and, forfeitures not being favored, the court should be prompt to seize hold of any circumstance that indicates an election to waive a forfeiture or an agreement to do so.’” Arnold v. Empire Insurance Co., 3 Ga. App. 685 (60 S. E. 470).

4. Applying the principles of the above-stated rulings to the facts of the - instant ease, it clearly appears that the forfeiture, if such there were, was waived by the subsequent conduct of the insurer, and that the court properly directed a verdict in favor of the insured.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Bloodworti-i, J.

text:
    19466.
    CHEVES, for use, etc., v. HITZ.

      Decided April 9, 1929.

      Tye, Thomson & Tye, for plaintiff.

      Mitchell <&' Mitchell, for defendant.
   Bloodworti-i, J.

1. So far as legal and pertinent, the request to charge set forth in the motion for a new trial was covered by the charge given; and the refusal to give the requested instructions to the jury was not error. Bryan v. Moncrief Furnace Co., 38 Ga. App. 107 (3) (142 S. E. 700); Miles v. Foy, 38 Ga. App. 473 (3) (144 S. E. 802). Moreover, this ground of the motion need not be considered by this court. It is well settled by repeated rulings of this and the Supreme Court that each ground of a motion for a new trial must be complete and understandable without reference to any other part of the record. In this ground it is not alleged that the requested charge is not covered by the instructions given the jury, and it would be necessary toc examine the charge given to ascertain whether or not the request was not covered by said instructions. Nor is it alleged that the requested instructions.were pertinent and applicable to the facts of the case and were authorized by the evidence. Cherry v. State, 38 Ga. App. 388 (3) (144 S. E. 50); Eunice v. State, 38 Ga. App. 357 (2) (143 S. E. 925).

2. A ground of the motion for new trial alleges error “because the court, after charging the jury as follows: ‘That isv a presumption, that is a rebuttable presumption/ failed and omitted to explain to the jury the meaning and effect, as a matter of evidence, of the presumption, and failed to state to the jury how the presumption might be rebutted and on whom the burden of rebutting the presumption would rest.” In Holmes v. Clisby, 121 Ga. 241 (7) (48 S. E. 934, 104 Am. St. R. 103), the Supreme Court held: “The judge should explain to the jury the meaning of technical terms which occur in his instructions; but a failure to do so will not generally be a ground for a new trial, in the absence of an appropriate and timely written request for such explanation.” See also Pickens v. State, 132 Ga. 46, 41 (63 S. E. 183). There was no request for an explanation of the meaning of the word “presumption,” and the failure of the judge to explain it is not, under the particular facts of this case, cause for a new trial. In addition, “An exception to a correct charge, because of the failure to give in the same connection some other pertinent legal proposition, is not a good assignment of error.” Macon Railway & Light Co. v. Barnes, 121 Ga. 443 (3) (49 S. E. 282). See Ga. Granite Corp. v. Union Granite Co., 31 Ga. App. 261 (3) (120 S. E. 541), and cit.

3. The court charged the jury: “As to what the truth may be is a matter entirely for your consideration and determination.” This charge states a correct principle of law, and is not subject to the criticism that it “authorized and led the jury to believe that they might find against the plaintiff even though there was no evidence whatever to rebut the presumption in plaintiff’s favor.”

4. A ground of the motion for a new trial alleges that the court erred when the jury was instructed that “if the plaintiff has failed to show you that this entry was made, you should find for the defendant.” This ground is not complete and understandable without reference to other parts of the record. To ascertain what is meant by “this entry” it would be necessary to look to other parts of the record, and without looking beyond what appears in this ground we could neither learn the facts nor ascertain error. Nissenbaum v. State, 38 Ga. App. 253 (2), 255 (143 S. E. 116); Russ v. State, 35 Ga. App. 416 (133 S. E. 148).

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

Judgment affirmed.

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


text:
    19469.
    FANNING v. THE STATE.

      Decided April 9, 1929.

      Hugh H. Gomls, for plaintiff in error.

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

1. The indictment in this case charges the defendant, in two counts, with carrying a pistol concealed, and with carrying a pistol without a license. The jury returned a verdict of guilty; the defendant made a motion for a new trial, which was overruled; and to this ruling he excepts. A witness for the State, in addition to testifying as to the time, place, etc., swore: “I saw him (the defendant) with a pistol on the Sunday night when they caught us skinning, on the other side of the railroad trestle. . . I saw this defendant Lloyd Fanning with a pistol. . . The pistol was hid down in his overall pocket. . . I seen him take the pistol out of his pocket.” This evidence authorized a conviction under both counts. “On the trial of one charged with a violation of the act of 1910 (Acts 1910, p. 134), the State makes out a prima facie case when it proves that the accused carried a pistol on his person, or had manual possession of a pistol, not at his home or place of business, and the burden is upon the accused to show, in answer to this evidence, that he had a license as prescribed by the act.” Blocker v. State, 12 Ga. App. 81 (3) (76 S. E. 784); Harden v. State, 17 Ga. App. 322 (86 S. E. 736). See also Butler v. State, 18 Ga. App. 201 (2), 202 (89 S. E. 178).

2. The only special ground of the motion for a new trial complains that the verdict was contrary to the evidence, under the following charge of the court: “If you believe, beyond a reasonable doubt, that this defendant did, at any time within two years prior to the finding and returning of the bill of indictment into court.by the grand jury in the county of Wilkes, commit the offense with which he is charged in the bill of indictment, under both counts thereof, and' in the way and manner chargéd, you would be authorized to find him guilty, and- the form of your verdict would be, ‘We, the jury, find the defendant guilty.’ ” Under the authorities cited above and the evidence introduced by the State, the burden was upon the accused to show, in answer to this evidence, that he had a license to carry the pistol; and he failed to do so. The excerpt quoted states a correct proposition of law, and the verdict was not contrary thereto.

3. The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Blood-worth, J., concur.


text:
      19472.

    TUTT v. THE STATE.
    Decided April 9, 1929.

      Hugh H. Combs, for plaintiff in error.

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

The defendant was convicted of possessing intoxicating liquor. The contention of the State was that he was driving a car, and when the officers got after him he broke a bottle of whisky in the ear. The State introduced only one witness, and he swore in part: “1 did not see him break the whisky. I did not see him in possession of any whisky. . . All I found was the smell of whisky in the car and the broken bottle. . . There was no whisky dripping from the car that I saw. . . I searched the defendant twice. The first time I searched him there was another negro with him. We searched the car there and there was not any whisky. We searched him again in possibly two hours.” The defendant in his statement said that there was another man with him in the car, and that “when he seen another car coming down the road, he broke the bottle and jumped out. I didn’t have nothing to do with the bottle the fellow broke.” Under the defendant’s statement another man had the whisky and broke it. Under the State’s evidence anybody could have broken it, any time within two hours prior to the arrest, and in or out of the county. -The evidence does not exclude every reasonable hypothesis save that of the guilt of the accused; and the court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, O. and Bloodworik, J., concur.


author: Blood worth, J.

text:
    19473.
    COFER v. THE STATE.
    Decided April 9, 1929.

      B. J. Stevens, C. S. Glaxlon, for plaintiff in error.

      J. Q. West, solicitor, contra.
   Blood worth, J.

1. The demurrer to the indictment was properly overruled.

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

3. “Before the act of 1903, commonly called the ‘ labor contract act/ can be violated, the evidence must clearly show that there existed in the mind of the laborer a fraudulent intent when he obtained the advance of money or property on his contract or promise to perform services.” Hankinson v. State, 6 Ga. App. 793 (2) (65 S. E. 837). “The evidence failing to disclose an intent to defraud on the part of the defendant at the time the advances were obtained, the conviction was unauthorized.” Raffield, v. State, 7 Ga. App. 422 (2) (67 S. E. 109). “In a prosecution for a violation of the labor contract act’ (Penal Code, § 7.15), the burden rests upon the State to show that there was no sufficient reason for the breach of the contract on the part of the defendant, or, in default thereof, that there was no good and sufficient reason why the money advanced on the strength of the contract was. not returned. ‘ Without this proof the State’s case is incomplete, because the prosecution has not created the evidentiary presumption necessary to rebut the presumption of innocence. Presumably the accused had good and sufficient cause.’ Thorn v. State, 13 Ga. App. 10 (78 S. E. 853).” See Jones v. State, 15 Ga. App. 642 (84 S. E. 88); Durham v. State, 17 Ga. App. 810 (88 S. E. 594); Dixon v. State, 28 Ga. App. 374 (111 S. E. 69); Skinner v. State, 37 Ga. App. 153 (139 S. E. 90); Clements v. State, 39 Ga. App. (554) (147 S. E. 792). Under the rulings in the foregoing cases and the facts of the instant case, the defendant’s conviction was unauthorized, and the trial court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, G. J., and Luke, J., cancwr.


text:
    19477.
    FAGAN v. THE STATE.
    Decided April 9, 1929.

      T. J. Ripley, Bryan & Middlebrooks, M. H. Meeks, for plaintiff in error.

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

The indictment in this case charged and accused “Frank Fagan with the offense of burglary, for that said accused, in the county of Fulton and State of Georgia, on the 9th day of October, 1928, with force and arms, did break and enter the dwelling house of Nellie Brewer, where valuable goods were contained, with intent to commit a felony, said felony being the intent to kill and murder the said Nellie Brewer.” “The intent to kill and murder the said Nellie Brewer” is a material issue and essential to a conviction under this indictment. ’“The position that descriptive averments can not be rejected, extends to all allegations which operate by way of description or limitation of that which is material. Bishop says: 'If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance. And where there is a necessary allegation which can not be rejected, yet the pleader makes it unnecessarily minute in the way of description, the proof must satisfy the description as well as the main part, since the one is essential to the. identity of the other.’” Fulford v. State, 50 Ga. 593; Haupt v. State, 108 Ga. 53 (34 S. E. 313, 75 Am. St. R. 19). It is conceded by his counsel “that Frank Fagan broke and entered the dwelling-house of Nellie Brewer, situate in Atlanta, Fulton county, Georgia, on October 9, 1928; that goods of value were contained therein; that the said Frank Fagan broke up and mutilated some of the furnishings and fixtures thereinand the record shows a very aggravated case in that respect. However, the question for determination is not ■whether the defendant has been guilty of gross misconduct or of some crime, but whether he is guilty of the crime charged in the indictment, and has the State proved the material allegations of the indictment. To constitute the crime of burglary, the breaking and entering must be “with intent to commit a felony or larceny” (Penal Code, § 146), and in the instant case the State alleged that the defendant broke and entered with the intent to kill and murder Nellie Brewer. No matter what other gross misconduct the defendant may have been guilty of, this material allegation must be proved, to authorize a conviction, and the State failed to carry this burden. The evidence shows that the house was in the dark before the defendant broke in, the lights having been turned off, and that the defendant broke three windows on the front of the house with flower pots and got in and proceeded to mutilate the place. Officers were called and there was considerable shooting; but the undisputed evidence shows that Nellie' Brewer was not in the house when the defendant entered it, and there is no evidence to show that the defendant attempted in any way to kill Nellie Brewer after breaking and entering the house, or attempted to catch her; she having fled before he entered. No witnesses swore that they saw the defendant with a pistol, and he denies that he had a pistol. There was some evidence that there was shooting in the house while he was in there. However, since it is undisputed that Nellie Brewer was not in the house while this shooting was going on, mere shooting in a vacant house could in no way show an attempt to kill Nellie Brewer. Nellie Brewer testified: “Frank Fagan came to my house and rang the door bell. . . He was at the door ringing the bell. We were all in the dark house. Frank Fagan was at the door. . . He rapped again. He took a flower pot and threw it through the window. . . The officers came soon.after. . . After the shooting I returned to the house and the officers were there. . . I don’t know who did the shooting. I did not see the persons that did the shooting. As to how far I was when I heard the shooting, I was at the corner of Simpson and Griffin street, just a block. . . When he threw the first flower pot in . . we went out the back. . . I did not see a pistol on Frank. As to how long I waited at this place a block away, I was excited and don’t know. . . I stayed there until the shooting ceased. . . We were not seen by him. We left unseen by him. We left the back. . . He never shot at me at all. He never attempted to shoot at me. . . I never saw him in the house at all. I left. I left the house. Nobody shot at me.” She testified that the defendant drew a knife on her that afternoon, but that was several hours before he broke and entered the house, not at the time or after he broke and entered; and the statute provides that he must break and enter with the intent. This circumstance alone is not sufficient to show, to the exclusion of every other reasonable hypothesis, the intent alleged in the indictment. H. W. Armstrong, an officer, testified: “I waited there [after the shooting] until the persons who lived in the house came. I went through the house with her, — I mean the girl that lives there and that testified before myself. . . I did not see Frank shoot at anybody or make an attempt to shoot at anybody. . . Nellie Brewer was not in the house when we got there.” The defendant might have broken into the house for the purpose of rape, rather than for the purpose of murdering Nellie Brewer. It is not unreasonable to conclude that he had a fit of temper and that he broke and entered for the purpose of doing just what he did, viz., break up the furniture and thereby give vent to his wrath. Mere breaking furniture and fixtures, or even shooting in a vacant house while Nellie Brewer was a block away, does not show an attempt to kill Nellie Brewer; and since it is undisputed that she was not in the house at the time the defendant was, and the State failed to show any effort on the part of the defendant to kill her at the time or after he broke and entered the house, the circumstantial evidence as to the defendant’s intent in breaking and entering the house was not sufficient to exclude every reasonable hypothesis save that he broke and entered with the intent to kill Nellie Brewer, as alleged in the indictment; and for this reason the court erred in overruling the motion for a new trial. This ruling disposes of the general grounds of the motion for a' new trial and the first five special grounds, which are but amplifications of the general grounds. The other special grounds of the motion show no error that requires a new trial, and none of them except the 8th need be discussed.

The 8th special ground of the motion alleges error because of the remarks of the court as disclosed by the following: “When the State rested, defendant’s counsel stated to the court that he wished to make a motion; whereupon the following took place: Mr. Ripley: Tour honor, I would like to make a motion. The court: I overrule the motion. Mr. Ripley: I would like to state the ground, so you can catch the point. The court: I have already caught it. I know what it will be. Mr. Ripley: Will you agree that it is going to be what I say? The court: Yes, I will agree that you will say anything you want to say. Mr. Ripley: And I can put that in ? The court: Yes.” “Counsel for the defendant having had full opportunity to move for a mistrial on the ground of these statements of the court in the presence and hearing of the jury, and having failed to do this, the defendant can not, after the return of the adverse verdict, have that verdict set aside and a new trial granted” because of such statements. Tanner V. State, 163 Ga. 130 (9) (135 S. E. 917), and cit. “Prejudicial remarks of the judge to counsel, where there is no motion for a mistrial, are not cause for a new trial.” Ga. Utilities Co. v. Ward, 37 Ga. App. 45 (138 S. E. 588). However, for the benefit of the bench and bar, we deem it proper to say that these remarks of the court tended to belittle the defendant’s counsel and discredit him before the jury, and were therefore improper.

Judgment reversed.

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


text:
    19479.
    Phillips v. The State.
    Decided April 9, 1929.

      E. S. Jaclcson, for plaintiff in error.

      E. G. Morgan, solicitor-general, contra.
   Bkoyles, C. J.

1. One 'can not legally be convicted of violating the act of 1910 (Ga. L. 1910, p. 137; Bark’s Penal Code, §§ 718 (a), 718 (b), 718 (c)), as to defrauding the keeper of a hotel or boarding house, unless the evidence shows that a copy of that law, “printed in distinct type,” was “posted in the lobby, public waiting room, or that portion of the establishment most frequented by the guests thereof,” at the time the accused obtained the food, lodging, or other accommodation.

2. Under the above-stated ruling and the facts of the instant case the verdict was unauthorized, and the denial of a new trial was error.

Judgment reversed.

Luke and Bloodworth, JJ., conow.


text:
    19483, 19484, 19485.
    CAULEY v. THE STATE (three eases).
    Decided April 9, 1929.

      G. G. Delete, for plaintiff in error.

      B. G. Weathers, soUcitor, contra.
   Luke, J.

Accusations in two of these cases charge that the de-. fendant “did place and cause to be placed in the waters of Ogeechee river a certain trap, basket, and similar device for the purpose of catching fish.” The accusation in the third ease charges that the defendant, on June 24, 1928, “did fish and attempt to catch fish with hook and line, nets, gigs, and by other manner and means, in the waters and streams within the State of Georgia, said date being on Sabbath day.” In each case the defendant was convicted. He made motions for a new trial, which were overruled, and in each case he assigns error in his bill of exceptions upon that ruling. Each motion was upon the general grounds only. In each case the evidence authorized the verdict, and the judge properly overruled the motion.

Judgments affirmed.

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


text:
    19486.
    McMATH v. THE STATE.
    Decided April 9, 1929.

      W. P. Wallis, John P. Jlaunson, for plaintiff in error.

      George M. Napier, attorney-general, T. B. Gress, assistant attorney-general, Jule Felton, solicitor-general, contra.
   Bloodworth, J.

(After stating the foregoing facts.) The act approved August 15, 1923 (Ga. L. 1923, p. 39), provides that “There shall be levied upon and collected from each person, firm, or corporation, engaged in selling cigarettes and cigars at retail, a tax of ten per centum of the sales price at retail of each package of cigarettes and each cigar sold by such dealer.” This act was amended by an act approved December 19, 1923, which provides that stamps shall be affixed to “each package of cigarettes and each box, package or other container of cigars.” Ga. L. 1923, Ex. Sess., p. 69. It is provided that “Any dealer who shall sell, or offer for sale, cigarettes or cigars without complying with the foregoing provisions shall be guilty of a misdemeanor” (Ga. L. 1923, p. 40); and that “The exhibition of any package, or packages, of cigarettes which do not bear the stamps required to be fixed” under the foregoing provisions, “by any retail dealer, in any show-case, window, or on any shelf or table, or the possession of any box, package or container of cigars, which do not bear stamps as required herein, shall constitute prima facie evidence of the guilt of such dealer of the violation of this act.” Ga. L. 1924, p. 27. The plaintiff in error insists that the indictment was subject to demurrer on the ground that it failed to charge a sale or offer to sell at retail; and cites the case of Mills v. State, 33 Ga. App. 151 (125 S. E. 728). A reading of the indictment, quoted above, will show that it did charge that the accused did “offer for sale and sell certain cigarettes and cigars,” and that he was “a retail dealer of cigarettes and cigars.” The acts alleged in the indictment constitute a violation of the provisions heretofore referred to, and therefore the indictment charged a crime, and the demurrer, based on the ground that it failed to do so, was properly overruled.

The record shows that the date of the acquittal which the defendant pleaded in bar was March 27, 1928, and the indictment in the present case charges that the offense was committed November 1, 1928, more than seven months after the acquittal under the first charge. It is needless to say that an acquittal on any charge does not authorize a defendant to commit a similar crime thereafter and obtain exemption from punishment by pleading the former acquittal as a bar. Since the indictment charged that the crime was committed after the acquittal pleaded in bar, the court properly sustained the motion to dismiss the plea of former jeopardy.

The 1st special ground of the motion for a new trial alleges that the court erred in not admitting in evidence the former accusation, referred to in the plea of former jeopardy, and the verdict of acquittal thereon. The plea of former jeopardy had already been disposed of on motion of the solicitor-general, and to that ruling the defendant had duly excepted, and the accusation and the verdict in the former trial were not material to the issues under consideration, and were properly rejected as evidence.

Under the note of the trial judge, there is no merit in the second special ground of the motion for a new trial, which complains of an excerpt from the charge of the court.

The 3d and last special ground of the motion for a new trial alleges that the court erred in charging the jury as follows: “The exemption under the law given to the veteran of the Confederate or a veteran of the Spanish-Ameriean war, or the World War, or in any other wars of the United States that is designated in the section of the code, providing for exemption from the paying license by a veteran, does not apply to a State tax; and if this defendant in this ease sold cigarettes and cigars as charged, without first having paid the State tax that is required to be paid, as charged in the bill of indictment, then it would be a violation of the law, and if the jury believes that to be the truth of the case, it is their duty to return a verdict so finding; if they do not, if they have a reasonable doubt of his guilt, it would be their duty to acquit him.” The substance of the defendant's objection to this charge was that it was error for the reason “that the license granted by the ordinary as an exemption from taxes on occupation applies to State tax on cigars and cigarettes, and that under the law a veteran of the Spanish-Ameriean War is exempt from placing [paying?] the taxes of the State of Georgia on cigars and cigarettes where the veteran conducts a retail mercantile business and sells in connection therewith cigars and cigarettes;” and that the court erred in not so charging the jury. Section 1886 of the Civil Code of 1910 is as follows: “Every peddler or itinerant trader, by sample or otherwise, must apply to the ordinary of each county where he may desire to trade, for a license, which shall be granted to him on the terms said ordinary has or may impose. They are authorized to impose such tax as they may deem advisable, to be used for county purposes. The license extends only to the limits of the county.” A mere reading of this section will show that it refers to a county license or business tax. Following this section are section 1887, excepting certain merchandise, and section 1888, excepting certain persons from the license or business tax. Section 1888, under which the defendant claims exemption, is in part as follows: “Any disabled or indigent Confederate soldier or soldier . . of the Spanish-Ameriean War . . who is a resident of this State may peddle or conduct business in any town, city, county, or counties thereof without paying license for the privilege of so doing, and a certificate from the.ordinary of any county stating the facts of his being such disabled or indigent soldier . . shall be sufficient proof; provided that this section shall not authorize peddling or dealing in” certain named things. It will be noted that the caption of section 1886 is “License to peddle,” and the caption of section 1888 is “Disabled soldiers to peddle without a license.” Section 1886 vests authority in the ordinary of each county “to impose such tax as they may deem advisable, to be used for county purposes,” and unquestionably relates to a county tax and not to a State tax. Since section 1888 is an exception to, and mhst be construed in connection with, sec-' tion 1886, section 1888 likewise relates to a county license or business tax, and not to a State tax.

If the State had intended to exempt war veterans from payment of the State tax on cigars and cigarettes, the presumption is that the act providing for such tax would have specifically exempted them. Exemptions by implication are not favored. It will be noted that section 1888 of the Civil Code makes the same exemption apply to Spanish-American War veterans as applies to Confederate veterans. In Manus v. State, 7 Ga. App. 377 (66 S. E. 1037), this court held: “The license or certificate issued by the ordinary to a Confederate veteran, which permits him to peddle without paying county and municipal license taxes, does not relieve him from the payment of the tax of $200.00 imposed by the State upon retail dealers in “near beer’.” And in the opinion (p. 379) it is said: “The grant of the privilege authorized by the act of 1897 did not give the holders of veterans’ licenses or certificates a vested right in an exemption not included within the terms of the original grant. The act of 1897 dealt only with the subject of municipal and county taxes, and did not relate to the subject of State taxation or State license. . . A confederate veteran has all that was granted to him originally by the act of 1897, and the mere fact that the State has imposed a State tax, or may hereafter impose a State tax, upon certain articles upon which it has hitherto forborne to impose a license fee, does not legally affect the rights heretofore conveyed by the license to the Confederate soldier. The purpose of the act of 1897 was to give to the Confederate veteran who was entitled to the ordinary’s certificate the distinct advantage of relief from the payment of county and municipal taxes as to those articles upon the sale of which others might be taxed.” If the veterans of the various wars mentioned in section 1888 of the code were exempt from this and similar State taxes, they could, bjr virtue of this advantage, create a monopoly on various industries and deprive the State of millions of dollars of revenue. It is unlikely that the General Assembly, by passing the acts of which this section is a codification, intended so to throttle the State. While we think this section is not ambiguous, yet even if it were so, it would be construed against the grantee, since the exemption provided for tends to curtail the authority of the commonwealth. “A grant of exemption from taxation being in derogation of the sovereign authority and of common right, must invariably be construed most strictly against the grantee, and can never be permitted to extend, either in scope or duration, beyond what the terms of the concession clearly require.” Sisters of Charity, v. Corey, 73 N. J. 699 (65 Atlantic 500).

From the foregoing it will be seen that the exemption of war veterans provided for in section 1888 of the Civil Code of 1910, does not include exemption from the State tax on cigars and cigarettes imposed by the act of 1923.

6. The evidence authorized the verdict and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    19488.
    Shehaney v. The State.
    Decided April 9, 1929.

      Peek, Randolph & Henson, C. G. Bailie, for plaintiff in error.

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

1. Upon the hearing of the motion for a continuance of the case, based upon the absence of a witness, the movant failed to show that the witness was not absent by his (the movant’s) permission, or that he expected to have the testimony of the witness at the next term of the court, or that the application for a continuance was not made for the purpose of delay. The showing was deficient in several other particulars, and the denial of the motion was not error.

2. The general grounds of the motion for a new trial are not argued or insisted upon in the brief of counsel for the plaintiff in error, and are treated as abandoned.

Judgment affirmed.

Luke amd Bloodworth, JJ., concur.


text:
    19497.
    Spires v. The State.
    Decided April 9, 1929.

      Harris & Smith, Peebles & Boivden, for plaintiff in error.

      A. S. Bradley, solicitor-general, M. L. Gross, solicitor-general, contra.
   Luke, J.

On circumstantial evidence the defendant was convicted of manufacturing intoxicating liquors. The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    19498.
    WHITMAN v. THE STATE.
    Decided April 9, 1929.

      Wallace & Wallace, for plaintiff in error.

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

In ground 1 of the motion for a new trial certain evidence was objected to on the grounds that “it has no bearing on the case, was irrelevant, immaterial, incompetent, and prejudicial to the rights of the defendant.” Each of these objeetions is general and presents nothing specific for the consideration of this court. Under repeated rulings of this court, such objections are insufficient. Herndon v. State, 38 Ga. App. 117 (4), 119 (142 S. E. 695), and cit.; City of Manchester v. Beavers, 38 Ga. App. 338 (2) (144 S. E. 11), and cit.

This ground of the motion alleged also that “the admission of certain testimony was error for the reasons above stated and for certain other enumerated reasons,” which are 'then for the first time stated. These additional reasons can not be considered because “it does not affirmatively appear that they were urged and passed upon at the trial.” Jolly v. State, 38 Ga. App. 731 (145 S. E. 525); Edenfield v. State, 37 Ga. App. 628 (2) (141 S. E. 220); Langston v. State, 153 Ga. 127 (111 S. E. 561). It is further alleged in this ground that the. court erred in a certain statement made when ruling on the admissibility of evidence. Counsel for the defendant did not move for a mistrial, and “having failed to do this, the defendant can not, after a return of an adverse verdict, have that verdict set aside and a new trial granted.” Tanner v. State, 163 Ga. 130 (9) (135 S. E. 921); Georgia Utilities Co. v. Ward, 37 Ga. App. 45 (138 S. E. 588), and cit.

Ground 2 of the amendment to the motion for a new trial, after quoting certain evidence, alleges that the court erred in permitting the following part thereof to go to the jury: “He was tried for having whisky in possession at a store.” The objections urged to the admissibility of this evidence were that the record would be the highest and best evidence on that point, and that the evidence was “hearsay, irrelevant, and immaterial.” As against these objections the evidence was properly admitted. Immediately following the sentence to which objection was made, the witness said: “I know that of my own knowledge.”

A motion to declare a mistrial was made because a witness while on the stand accused the defendant of making a statement which the witness said was “an absolute lie.” It is alleged that this reflected upon the character of the defendant, put his character in issue, and was highly prejudicial. When the witness made this statement the trial judge of his own motion told him that to use such language was not proper, and later instructed the jury as follows: “I wish to say that any statement that Mr. Malone made just now in stating that what the defendant said . , was a lie . . was improper on the part of the witness, and I wish to say very emphatically to,the jury that such statement on the part of Mr. Malone should have no influence on the minds of the jury in reaching a verdict in this case, and when you go to your room it would be proper for the jury to disabuse their minds of any impression as to this language.” Under the ruling in May v. State, 24 Ga. App. 379 (3) (100 S. E. 797), and cit., the court did not err in denying the motion to declare a mistrial.

A new trial should not be granted because of the alleged newly discovered evidence. The only effect of this evidence would be to impeach a witness for the State. “Though the witness sought to be impeached by newly discovered evidence was the only witness against the prisoner upon a vital point in the case, if the sole effect of the evidence would be to impeach the witness a new trial will not be granted.” Morgan v. State, 38 Ga. App. 686 (145 S. E. 521). Moreover, this ground of the motion is defective, “(1) because the affidavits in support of the witnesses upon whose alleged newly discovered evidence a new trial is sought fail to name any associate of such witnesses. Civil. Code (1910), § 6086; Hart v. State, 36 Ga. App. 673 (2) (137 S. E. 798); Ivey v. State, 154 Ga. 63 (6) (113 S. E. 175); Crosby v. State, 34 Ga. App. 235 (128 S. E. 817), and (2) because the bare recital in the affidavit of movant that said evidence could not have been discovered before trial and conviction by the exercise of ordinary diligence is a mere conclusion, and not binding upon the trial judge. Hart v. State, supra; Taylor v. State, 132 Ga. 235 (3) (63 S. E. 1116); Tyre v. State, 35 Ga. App. 579 (134 S. E. 178).” And see Kingston v. State, 38 Ga. App. 675 (145 S. E. 468). See Trammel v. Shirley, 38 Ga. App. 711 (2), 727 (145 S. E. 486), and cit.; Deen v. State, 37 Ga. App. 377 (140 S. E. 427). In Crosby v. State, 34 Ga. App. 235 (128 S. E. 817), this court quoted from Ivey v. State, supra, as follows: “An affidavit in support of the witness upon whose newly discovered evidence a new trial is sought must give the names of his associates, a statement that he keeps good company not being sufficient to meet this requirement, which is necessary to enable the prosecution to make a counter showing; and where such affidavit does not comply with this requirement, the trial judge does not abuse his discretion by refusing to grant a new trial on this

Judgment affirmed.

Broyles, G, J., and Buhe, J„ concur.


text:
    19506.
    HEATLEY v. THE STATE.
    Decided April 9, 1929.

      Hewlett & Dennis, Bindley W. Camp, T. B. Bowden, for plaintiff in error.

      John A. Boylcin, solicitor-general, J. W. LeCraw, contra.
   Luke, J.

The indictment charged that the accused “did unlawfully, and without any intention to do so, kill Gladys May Lilly, while accused was engaged in the commission of an unlawful act.” The evidence showed that the accused, while under the influence of intoxicating liquor, drove his car against Gladys May Lilly, a little girl seven years of age, with such force that it broke both arms and legs, crushed her through the body, and crushed her head to such an extent that her brains came out on her mother's coat sleeve; that a part of the child's hair was found on a nut that goes under the axle of the defendant's car; that after hitting the little girl the defendant drove about 200 feet and ran into the rear of another car; that the occupant of the second car told him to stop, that he had killed a child, but he refused to stop and drove around the second car and went away; that he then ran into still another car and had a wreck about a mile and a half from the scene of the killing; and it was here that the officer caught him around twenty or thirty minutes after he had run against the child. There was ample evidence to show that the defendant was drunk and driving in a reckless manner, and that the child was on the right side of the road when the defendant killed her. The jury returned a verdict of guilty; the defendant made a motion for a new trial, which was overruled, and on this ruling he assigns error in his bill of exceptions.

Special grounds 1 and 2 of the motion for a new trial object to testimony relative to the finding of some of the child’s hair on the radius rod nut of defendant’s car, the objection being that there was an interval of time between the killing of the child and the finding of the hair. The State introduced evidence to show that the homicide occurred about night, when a few small strands of hair could not be seen; that soon after the homicide the car was taken charge of and put away, and “it was not touched,” and that the next morning the hair was found when the officers were not looking for hair, but for blood, on the defendant’s car. The remoteness of evidence goes to its weight rather than its admissibility. In the instant case the jury had ample opportunity to judge of the credibility of this testimony, as was their province. In the case of Louie v. II. S., 218 Fed. 36 (3), it was held that “where a criminal prosecution rests, in part at least, on circumstantial evidence, the court’s rulings admitting offered evidence of that character will be sustained, if it tends even remotely to establish the ultimate fact.” In Chewning v. State, 18 Ga. App. 11 (3) (88 S. E. 904), this court held that whisky taken from the accused after the homicide was admissible in evidence. In Keener v. State, 18 Ga. 194 (7) (63 Am. D. 269), the Supreme Court held that “the remoteness or nearness of time as to threats pointing to an act subsequently committed, can make no difference so far as the competency of the testimony is concerned.” In Lindsay v. People, 63 N. Y. 143, it was held that evidence of blood stains found six months after an alleged murder was properly admitted. Since the evidence leads to the natural conclusion that the child was hit on the head, as her skull was badly fractured, and the hair on the automobile was found upon the first examination in daylight after the injury, and an opportunity was given to the jury to compare this hair with other hair taken from the child’s head, we think there was no error in admitting the evidence objected to, leaving to the determination of the jury the weight they should give it. Remoteness may affect the weight of evidence, but where the evidence offered is relevant and material, and connected with the fact sought to be proved, it should be submitted to the jury to determine its credibility and probative value. This ruling covers also the 4th special ground of the motion for a new trial, relative to the admission of the hair itself.

The 3d special ground of the motion complains of the admission of certain testimony of one Arthur'Smith, which it is not necessary to set out here. Some of this evidence was admissible as tending to show that the defendant was driving while under the influence of liquor, as alleged in the indictment; the witness having sworn that the defendant was on the wrong side of the road and came near running into a post. Some of it was admissible to show that it was in the neighborhood of the homicide, and some of it was admissible to show the identity of the defendant. Since the evidence was objected to en bloc, and the alleged illegal part was not specified, the whole was properly admitted. City of Atlanta v. Sciple, 19 Ga. App. 694 (3) (92 S. E. 28); Raines v. State, 37 Ga. App. 11 (138 S. E. 587); Smalls v. State, 99 Ga. 25 (2) (25 S. E. 614).

The 5th. special ground of the motion complains that the court erred in charging the jury that “Involuntary manslaughter shall also consist in the killing of a human being without any intention to do so, but in the commission of a. lawful act,” etc. Since the accused was charged with and convicted of involuntary manslaughter, in the commission of an unlawful act, he “was not harmed by a charge on a lesser offense than that for which he was convicted.” Ingram v. State, 34 Ga. App. 505 (2) (130 S. E. 222); Rich v. State, 33 Ga. App. 153 (3) (126 S. E. 154).

The 6th special ground of the motion complains because the court charged the jury relative to the defendant’s having his automobile under immediate control while passing a pedestrian. The allegations of the indictment and the evidence authorized this charge.

The evidence authorized the verdict, and no error of law is shown.

Judgment affirmed.

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


text:
    19507.
    SMITH v. THE STATE.

      Decided April 9, 1929.

      G. G. Battle, for plaintiff in error.

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

The record shows that a Cadillac car, while being driven along Martin Street in the City of Atlanta, struck a Ford ear which was crossing said street at the intersection of Woodward Avenue on which avenue the Ford was traveling; and by reason of the impact the occupants of the Ford car were injured. The plaintiff in error was indicted for assault with intent to murder, it being alleged that he was operating the Cadillac car at the time of the collision. The trial resulted in a verdict of guilty. A motion for a new trial was overruled, and the accused excepted. Owing to the ruling hereinafter made, it is unnecessary to consider the-special grounds of the motion for a new trial, as the errors alleged therein are not likely to recur upon another trial of the case. The evidence shows that the Cadillac car was traveling rapidly, and just after passing a truck struck the Ford car, causing the injury to the occupants. It has frequently been held by the appellate courts of this State that “the specific intent to kill is an essential ingredient of assault with intent to murder.” Even if it should be conceded that the accused was driving the Cadillac at the time it struck the Ford, there is no evidence to show a specific intent to kill on the part of the plaintiff in error. Therefore the verdict for assault with intent to murder was unauthorized, and the court erred in overruling the motion for a new trial. Springer v. State, 37 Ga. App. 154, 155 (139 S. E. 159);

Judgment reversed.

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


text:
    19509.
    Clements v. The State.
    Decided April 9, 1929.
   Luke, J.

The defendant was convicted of violating the “labor-contract act” .(Penal Code of 1910, § 915). “The evidence failing to disclose an intent to defraud on the part of the defendant at the time the advances were obtained, the conviction was unauthorized,” and the court erred in overruling the motion for a new trial. Raffield v. State, 7 Ga. App. 422 (2) (67 8. E. 109) ; Curry v. State, 7 Ga. App. 582 (67 S. E. 698).

Judgment reversed.

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

Ben Smith, for plaintiff in error.

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


text:
    19510.
    WOOD v. THE STATE.
    Decided April 9, 1929.

      Ben Smith, for plaintiff in error.

      E. G. Morgan, solicitor-general, contra.
   Bloodworth, J.

“In a prosecution for a violation of the ‘labor contract act’ (Penal Code of 1910, § 715), the State, to complete its presumptive case, must show that there was no good reason why the contract was not performed, or no good reason why the accused did not return the money advanced to him. Without this proof the-case'for the State is incomplete, because the prosecution has failed to create the evidentiary presumption necessary to rebut the presumption of innocence. Lewis v. State, 15 Ga. App. 406 (83 S. E. 439). It does not affirmatively appear in this case that the failure to perform the services contracted for or to return the money advanced was without good and sufficient cause.” Gatlin v. State, 16 Ga. App. 232 (84 S. E. 973). “An essential element of the offense of violating section 715 of the Penal Code (known as the labor-contract act), and one which the State must prove, is that the accused failed to perform the services contracted for, or failed to return the money advanced, ‘without good and sufficient cause.’” See Dixon v. State, 28 Ga. App. 374 (111 S. E. 69) and cit. In this case there is no evidence to sustain the essential element of the offense that the defendant refused to carry out his contract without good and sufficient cause. “ This essential proof was not furnished by the hirer’s testimony that he did not give the defendant any cause to quit. The testimony on this point amounted to no more than an opinion or conclusion, without proof of facts to support it. Moreover, proof that the hirer did not give the defendant cause to quit would not of itself show that there was no good and sufficient cause.” Durham, v. State, 17 Ga. App. 810 (88 S. E. 594), and cit. See also King v. State, 36 Ga. App. 272 (136 S. E. 466). The record does not show that this material fact was proved; consequently the conviction of the accused was unauthorized, and the judge erred in overruling the motion for a new trial.

Judgment reversed.

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


text:
    19511.
    HOLMES v. THE STATE.
    Decided April 9, 1929.

      E. L. Stephens, T. E. Hightower, for plaintiff in error.

      Fred Kea, solicitor-general contra.
   Broyles, C. J.

The defendant was convicted, under section 720 of the Penal Code of 1910, of the wrongful sale of personal property which, it was charged, he had previously included in a bill of sale to a certain corporation. It was alleged in the indictment that the bill of sale was executed by the defendant, John Holmes, and Mrs. Victoria Holmes, whereas upon the trial the undisputed evidence disclosed that it was executed by Mrs. Victoria Holmes alone. The allegation as to the execution of the bill of sale being essential, it must be proved as laid in the indictment, and the variance between the allegation and the proof is fatal. See, in this connection, Rogers v. State, 29 Ga. App. 363, 365 (115 S. E. 668), and cit.; Horton v. State, 21 Ga. App. 120 (3) (93 S. E. 1012); Thompson v. State, 118 Ga. 330 (3) (45 S. E. 410); Perkins v. State, 29 Ga. App. 278 (3), 280 (115 S. E. 27), and cit. It follows that the verdict was contrary to law and that the court erred in refusing the grant of a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    19518.
    JOHNSON v. THE STATE.
    Decided April 9, 1929.

      E. W. Feeney, Perry, Tipton & Perry, for plaintiff in error.

      Hollis Fort, solicitor-general, contra.
   Bloodworth, J.

“The verdict in this case is dependent entirely on circumstantial evidence. The proved facts are consistent with innocence, and are insufficient to exclude every reasonable hypothesis save that of the guilt of the accused. Suspicion of guilt will not authorize a conviction. Penal Code (1910), § 1010; Williams v. State, 113 Ga. 121 (39 S. E. 481). It was error to refuse a new trial.” Henderson v. State, 141 Ga. 134 (2) (92 S. E. 811).

Judgment reversed.

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


text:
    19519.
    THOMAS v. THE STATE.
    Decided April 9, 1929.

      Corbitt & Pope, Wimberly F. Brown, for plaintiff in error.

      Marvin L. Gross, solicitor-general, A. S. Bradley, contra.
   Broyles, C. J.

“Under the repeated rulings of the Supreme Court and of this court, each special ground of a motion for á new trial must be complete and understandable within itself; and when so incomplete as to require a reference to the brief of the evidence, or to some other portion of the record, in order to determine either what was the alleged error or whether the error was material, the ground will not be considered by the reviewing court.” Beavers v. State, 33 Ga. App. 370 (2) (126 S. E. 305), and cit. Under this ruling each one of the special grounds of the motion for a new trial in the instant case is fatally defective. Furthermore, even if the grounds were sufficiently understandable to be considered, in the light of all the facts of the case and the note of the trial judge qualifying his approval of the grounds, they show no error that requires a new trial.

2. The verdict was amply authorized by the evidence, and the refusal to grant a new trial was not error for any reason assigned.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    19520.
    Thomas v. The State.
    Decided April 9, 1929.

      Gorbitt & Pope, Wimberly JH. Brown, for plaintiff in error.

      Marvin L. Gross, solicitor-general, A. S. Bradley, contra.
   Broyles, C. J.

1. In view of the note of the trial judge, special grounds 1, 3, and 5, of the motion for a new trial are without merit.,

2. The remaining special grounds of the motion for a new trial (some of which are too defective and incomplete to be considered) show no reversible error.

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

Judgment affirmed.

Luke and Bloodnoorth, JJ., eoneur.


text:
    19525, 19526.
    ALUMBAUGH v. THE STATE (two cases).
    Decided April 9, 1929.

      Don H. Clark, E, O. Blalock, W. G. Thomas, for plaintiff in error.

      Walter C. Hartridge, solicitor-general, Julian Hartridge, Mc-Intire, Walsh & Bernstein, Hitch, Denmark & Lovett, contra.
   Luke, J.

The two records before us present phases of the same case and will be considered together. The record in case No. 19525 questions the correctness of the court’s judgment overruling the demurrer to the indictment, and the record in case No. 19526 questions the right of the lower court to proceed with the trial of the case until this court had determined the validity of said demurrer.

The accusation charges Mrs. Ed C. Alumbaugh with the offense of misdemeanor, “for that the said Mrs. Ed C. Alumbaugh, in the County of Chatham, State of Georgia aforesaid, on the 23d day of October, 1928, did unlawfully and maliciously defame, by printing, the honesty, virtue, integrity, and reputation of one who is alive, to wit, N. T. Stafford, of Chatham County, Georgia, and further of another who is alive, to wit, A. E. Winkers, of Chatham County, Georgia, and further of another who is alive, to wit, Thomas F. Walsh, of Chatham County, Georgia, and each of them, and did thereby expose him, the said N. T. Stafford, and him, the said A. E. Winkers, and him, the said Thomas F. Walsh, and each of them, to public hatred, contempt and ridicule, in that the said defendant, the said Mrs. Ed C. Alumbaugh, did, in the City of Savannah, in the said County of Chatham and State of Georgia, on the 23d day of October, in the year of our Lord, nineteen hundred and twenty-eight, unlawfully, wilfully, and maliciously circulate, distribute, and publish a -certain printed handbill, which printed handbill contains false printed statements and matters of and concerning members of the Knights of. Columbus, a Catholic fraternal order, having a council and an organization in the City of Savannah, within the said County of Chatham and State of Georgia, in that said printed handbill contained, set out, and stated a purported , oath of the said Knights of Columbus, which said purported oath was false and untrue; the said Knights of Columbus then and there being a Catholic fraternal order, as aforesaid, of which the said N. T, Stafford, the said A, E. Winkers, and the said Thomas F. Walsh, and each of them, then and there were, and were known to be, members, and residents of the said City of Savannah in said Chatham County, State of-Georgia; and which said false printed purported oath of said Knights of Columbus was then and there in said county and State aforesaid distributed, circulated, and published by the said Mrs. Ed C. Alumbaugh to one J. W. Eoyal, a resident of said County of Chatham, State of Georgia, and to others whose names are to the solicitor-general of the Eastern Judicial Circuit of Georgia, who prosecutes for the State of Georgia, in the City Court of Savannah, unknown; and the said defendant, the said Mrs. Ed C. Alumbaugh, then and there gave and delivered to the said J. W. Eoyal a supply of said handbills containing said false printed purported oath of said Knights of Columbus; and the said defendant, the said Mrs. Ed C. Alumbaugh, did then and there employ and hire the said J. W. Eoyal to distribute, circulate, and publish within said County of Chatham, State of Georgia, said handbills containing said false printed purported oath of said Knights of Columbus, by putting them into automobiles and into houses in said County of Chatham, State of Georgia, so that they might be read by the owners of said automobiles and the persons occupying said houses; and the said false printed purported oath of said Knights of Columbus exposed the said N. T. Stafford, the said A. E. Winkers, and the said Thomas E. Walsh, and each of them, then and there members, and known to be members, of said Knights of Columbus, and the said Knights of Columbus, to public hatred, contempt and ridicule; and said false printed purported oath of said Knights of Columbus, circulated, distributed and published as aforesaid in and by said handbills, tended and tends to blacken the honesty, virtue, integrity, and reputation of the said N. T. Stafford and the said A. E. Winkers and the said Thomas E. Walsh, and each of them, then and there members of the said Knights of Columbus, and the said Knights of Columbus, and thereby exposed them, and each of them, to public hatred, contempt, and ridicule; and said false printed purported oath of said Knights of Columbus, so distributed, published, and circulated by the said defendant, Mrs. Ed C. Alumbaugh, as aforesaid, being as follows, to wit:” Here follows the alleged false oath of the Knights of Columbus. We shall not copy it, but will content ourselves with saying that any citizen of the United States taking it makes of himself a traitor to his government and a potential murderer of the worst sort.

The demurrer to the accusation is in substance as follows: 1. The accusation charges no crime for the following reasons: (a) It alleges that the alleged unlawful and malicious defamation was made of and concerning a Catholic fraternal order, known as Knights of Columbus. (5) It expressly avers that no defamation of the character of Stafford, Winkers, and Walsh was made by the defendant of or concerning them or either of them, (c) “Said accusation expressly shows that any defamation of the character of said Stafford, Winkers, and Walsh, is a conclusion of the pleader, in that they were members of the Knights of Columbus.” (d) “Because said accusation does not aver that said defendant knew at the time of the alleged circulation of the reputed oath of the Knights of Columbus that any such organization existed in the said county of Chatham.”(e) “Because said accusation fails to allege that the said defendant knew that said Stafford, Winkers, and Walsh were members of the Knights of Columbus, or members of any Catholic order.” (f) “Because said accusation does not aver that said defendant knew at the time of the alleged distribution of the oath of the Knights of Columbus that said oath was false and untrue.” (g) “Because said accusation expressly shows, by an attached printed circular and made a part thereof, headed, ‘To Murder Protestants and Destroy American Government/ that the alleged oath of the Knights of Columbus printed and circulated by this defendant is itself printed from the Congressional Record of the United States, for the 62d Congress, 3d Session, Saturday, February 15th, 1913.” (h) “Because the said accusation expressly shows that the alleged defamatory language and charges is. itself a matter of public record, of the Congressional Record, . . and so became and was at the time of the alleged distribution and circulation an absolutely privileged communication.” (i) “Because the said accusation does not aver that said Knights of Columbus is a natural person, or any artificial person, but is merely a fraternal order.” 2. “Defendant specially demurs to said accusation upon the following grounds: (a) In that said accusation does not set out the alleged printed handbill containing the defamatory charges against said Knights of Columbus. (6) Because the printed matter attached by way of exhibit of said accusation shows that such exhibit is a detached fragment of some circular or other paper, (c) Because the fragmentary part of the attached circular is so torn and mutilated that it does not show what was the character of the circular distributed by defendant.”

The judgment of the trial court upon the foregoing demurrer was as follows: “The within demurrer is overruled upon each and every ground thereof.” Was this reversible error ?

Of course, if the accusation sufficiently alleges criminal libel of the three persons named therein, it is good as against the general demurrer, whether it does, or does not, as a matter of law, charge a libel of the Knights of Columbus. Therefore, since, to our minds, it fairly appears from a reading of the entire accusation that the solicitor-general seeks to charge that the libel was committed against the individuals named therein, rather than against the order, we shall consider the case from that viewpoint.

“A libel is a malicious defamation, expressed either by printing or writing, or signs, pictures, or the like tending to blacken the memory of one who is dead, or the honesty, virtue, integrity, or reputation of one who is alive, and thereby expose him to public hatred, contempt, or ridicule. Every person convicted of this offense shall be punished as for a misdemeanor.” Penal Code (1910), § 340.

Section 248 of the Penal Code of California is very like the Georgia statute. In so far as it is pertinent to the offense here involved, it reads: “A libel -is a malicious defalcation, expressed . . by . . . printing . . , tending to impeach the honesty, integrity, virtue or reputation . . of one . . and thereby expose him to public hatred, contempt or ridicule.” In' passing upon a demurrer to the information, the Supreme Court of California, in People v. Turner, 28 Cal. App. 766 (154 Pac. 34), said: “It would seem that a mere statement of the published oath, coupled with an averment that it was false and malicious, would be sufficient to bring the publication within the terms of section 248 of the Penal Code. It would be a severe reflection upon the condition of the law of libel if it permitted to go uncondemned the publication of articles such as this, if false. It is clear that the published oath, if believed by the community to be taken by the mémbers of the fourth degree Knights of Columbus, would have a tendency to expose those persons to hatred, contempt, or ridicule. While the publication may not, as claimed by the defendant, directly impeach their honesty and integrity, it does in a most direct and vital way, assail their loyalty as citizens by charging them with the taking of an obligation which is, in itself, a violation of their oath of allegiance and of the essential duties and bonds of American citizenship, and this in a general sense impeaches their reputations, and exposes them to those attitudes of public feeling described in the section of the Penal Code.” See also Crane v. Oklahoma, 14 Okla. Cr. 30 (166 Pac. 1110, 19 A. L. R. 1455).

The alleged objectionable printing as it appears in the paper attached to the indictment is headed in large type: “To Murder Protestants! And Destroy American Government!” “Is the Oath Binding Roman Catholics?” We quote further from the heading of said paper: “It contains everything stated in the REPUTED OATH OF THE KNIGHTS OE COLUMBUS. The following form of obligation reprinted from the Congressional Record of the Sixty Second Congress, third session, for Saturday, Feb. 15, 1913.” Following the above, and immediately under the words, “KNIGHTS OF COLUMBUS,” is printed the alleged oath. Beneath the alleged oath appears the following: “IF THIS IS TRUE, the Oath and Law of the Pope’s Government violates the Constitution of the United States and should be investigated by Congress. This is a move of the American People to get Congress to Investigate and See.” The paper concludes: “Public Cordially Invited. Hear Protestant’s Joan of Arc, MRS. ED O. ALUMBAUGH.”’

There can be no question as to the libelous nature of the printed matter in the ease at bar, and we are well satisfied that the accusation charges that the defendant libeled the individuals named therein by publishing the purported oath as the “reputed oath” of a fraternal order to which they were known to belong.

From what is said above, it is in our opinion apparent that the general demurrer was not good for any reason assigned in paragraph 1, subsections (a), (c), (d), and (e). In regard to subsection (5), it need only be said that the accusation does not expressly aver “that no defamation of the character of N. T. Stafford, A. R. Winkers, and Thomas Walsh, was made by said defendant of or concerning them or either of them.” There is no merit in subsection (/) of the general demurrer. The accusation alleges that the oath was false and untrue, and that the alleged libelous matter was maliciously published; and this is sufficient without a specific allegation that the defendant knew of its falsity. Subsections (g) and (h) raise the point that the circular attached to the accusation shows on its face that the purported oath was reprinted from the Congressional Eecord, and was therefore a privileged communication.

The accusation does not aver that the purported oath was reprinted from the Congressional Eecord, and we do not think that there is any presumption in favor of the truthfulness of the statement in the handbill that it was. However, for the purposes of this decision, we shall consider the case just as though the alleged oath was reprinted from the Congressional Eecord. It is true that fair and honest reports of the proceedings of legislative bodies are privileged communications. See Civil Code (1910), §§ 4432, 4436. Nevertheless, we are quite sure that whatever privilege might attach in favor of any member of Congress who may have caused the alleged false oath to be inserted in the Congressional Eecord will not be extended to other persons, not members of Congress, who maliciously reprint the said oath; and it is alleged in the indictment that the said oath was false and was maliciously published. In Holmes v. Clisby, 121 Ga. 241 (2) (48 S. E. 934, 104 Am. St. R. 103), it was said: “A wilful falsehood can not be uttered in good faith, and therefore can never be the subject of a privileged communication.” Indeed, the privilege extended to members of legislative bodies will not be extended to include words spoken by them unofficially,- although spoken in the legislative hall while the legislature is in session. 36 C. J. 1260, sec. 239. It would be as dangerous as illogical to say that the mere fact that something had been printed in the Congressional Eecord would import its verity and warrant any private person in publishing it for any purpose. The alleged oath may have been published in the Eecord without any purpose to indicate or intimate that it was the oath of the Knights of Columbus. It may have been so published to show precisely the contrary.

Under the view we take of the accusation it is not necessary for us to decide the merit of subsection (i) of the demurrer. However, there is highly respectable authority in other States that a class or a fraternal order may be libeled. See Crane v. Oklahama, supra, and cit.

Grounds {a), (&), and (c) of the special demurrer are “speaking” in nature and clearly without merit.

For no reason assigned did the court err in overruling the demurrer to the accusation.

We direct our attention to case No. 19526. The defendant was charged with criminal libel; a demurrer to the accusation was overruled, and a bill of exceptions was immediately sued out. The case is docketed as No. 19525, and is the same one we have considered above. The case coming on for trial, the defendant filed what is called by her a “demurrer to the record.” In that paper she recited that the record to which she demurred consisted of the accusation, the demurrer thereto, the judgment of the court overruling said demurrer, and the bill of exceptions sued out to that ruling. She then alleged that the city court of Savannah was without jurisdiction “to further assign said case for trial or to hear or determine any of the issues therein involved, until said bill of exceptions shall have been heard and determined by the Court of Appeals.” The prayer reads: “Wherefore, defendant prays the judgment of the court, sustaining this demurrer to the jurisdiction of said court, and that any other or further proceedings in the trial' of said case be dismissed and quashed, until such time as the error assigned in said bill of exceptions shall have been heard and determined by the Court of Appeals.” The court overruled the demurrer, and error is assigned on this ruling.

The procedure employed in this case is new to us, but, for the purposes of this decision, we shall consider the question made by the “demurrer to the record” as properly before this court.' Of course, the defendant had the right to except either pendente lite or directly to the overruling of her demurrer. She pursued the latter course. Counsel for the plaintiff in error state in their brief that the only question for determination is this: “Did the bill of exceptions, signed and certified by the judge of the city court of Savannah on January 15th, divest that court of jurisdiction to try defendant ... on the 18th day of January following?” This appears to be a new question as to criminal cases, but not so as to procedure in civil cases. In Mass. Bonding & Ins. Co. v. Realty Trust Co., 139 Ga. 180 (2) (77 S. E. 86), where one of the defendants excepted directly to the overruling of its general demurrer to an equitable proceeding, and filed a bond payable to the plaintiff, conditioned to pay the eventual condemnation money and all future costs, the court held that the presiding judge, in the exercise of a sound discretion, could have delayed further proceedings until the Supreme Court had passed upon the demurrer, or he could have caused the case to proceed. Eeferring to the rights of a defendant in such a case under the Civil Code (1910), § 6138, the court said: “He may file a bill of exceptions pendente lite, and except when the case finally terminated, or, if he prefers, he may except directly, although the case is still pending in the trial court. In the-latter event the court is not compelled to stay the further progress of the cause, and await the determination of the question thus permitted to be carried up. He may do so in his discretion, but not as a matter of right on the part of the excepting party to have it done; and if the case proceeds pending his exception, the result may be modified or upset by the ruling of this court.” See, in this connection, Montgomery v. King, 125 Ga. 388 (54 S. E: 135), which differentiates and limits the decision in W. & A. Railroad v. State, 69 Ga. 524, which is chiefly relied on by the plaintiff in error.

In the absence of any authority sustaining the contention of the plaintiff in error, and in view of the decisions cited above, we hold that the court had the right to proceed with the trial of the case after the judge had signed and certified the bill of exceptions, without waiting for this court to pass upon the validity of the general demurrer to the indictment.

Therefore, we hold that the judgment overruling the demurrer in case No. 19525 was correct, and that the “demurrer to the record” in case No. 19526 was likewise properly overruled.

Judgment in each case affirmed.

Broyles, G. J., and Blood-worth, J., concur.


author: Bboydes, O. J.

text:
    19532.
    Albritton v. The State.
    Decided April 9, 1929,
   Bboydes, O. J.

The only assignment of error in the bill of exceptions is upon the refusal to grant a new trial. The verdict was amply authorized by the evidence, and the motion for a new trial was based upon the usual general grounds only.

Judgment affirmed.

Luke and Bloodioorth, JJ., concur.

P. Z. Geer, for plaintiff in error. J. A. Drake, solicitor, contra.


text:
    19535.
    KIRKLAND v. THE STATE.
    Decided April 9, 1929.

      P. Z. Geer, for plaintiff in error. J. A. Drake, solicitor, contra.
   Bloodworth, J.

There is no complaint of any ruling made during the trial of the case. It is insisted that there is no evidence to support the verdict. A jury is authorized to believe one witness as against many. The credibility of witnesses is a matter exclusively for the jury. Upon a hearing of a motion for a new trial the judge of the trial court who hears the case, has some discretion where there is a conflict of evidence, but this court has none where there is any evidence to support the verdict. As was said in Soell v. State, 4 Ga. App. 337 (3) (61 S. E. 514). “Though the evidence of the defendant’s guilt is weak and unsatisfactory, this court has no jurisdiction to review a finding of the jury upon an issue of fact.”

Judgment affirmed.

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


author: Brovles, C. J.

text:
    19536.
    Phillips v. The State.
    Decided April 9, 1929.
   Brovles, C. J.

The motion for a new trial contained the usual general grounds only. The evidence, while circumstantial, was sufficient for the jury to find that it excluded every reasonable hypothesis save that of the defendant’s guilt. The cases cited in the brief of counsel for the plaintiff in error are distinguished by their particular facts from this case. The refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

P. Z. Geer, for plaintiff in error. J. A. Drake, solicitor, contra.