text:
    14946.
    AVERA LOAN & INVESTMENT CO. v. NATIONAL SURETY COMPANY et al.

    1. Under the broad powers given an auditor by section 5129 of'the Civil Code of 1910, he may grant a nonsuit on the terms and conditions stated in section 5942 of the code.
    2. Under the facts of this case the auditor did not err in granting a non-suit to each of the defendants, and the judge of the superior court properly passed the following order: “ It is considered, ordered, and adjudged that the motion to recommit be denied, and all exceptions of law and fact be and the same are hereby overruled, and a nonsuit is hereby granted in favor of the National Surety Company and George Beverly Walker.”
    3. (a) The judge properly taxed the auditor’s fee against the Avera Loan & Investment Company.
    (6) The judge erred in allowing the auditor a fee of $500.
    Decided May 13, 1924.
    Action on bond; from Bibb superior court — Judge Malcolm D. Jones. May 24, 1923.
    Avera Loan & Investment Company sued National Surety Company and George Beverly Walker. The petition as amended alleged in part that the surety company was a corporation doing a fidelity-insurance business in.this State, and. that it and Walker were indebted to the plaintiff $4,000, by reason of the following facts: “On January 30, 1914, said George Beverly Walker and National Surety Company executed and delivered to your petitioner a contract of fidelity insurance whereby they jointly agreed to make good to your petitioner within sixty days after satisfactory proof thereof any loss not exceeding $4,000 which your petitioner might sustain by reason of any act of personal dishonesty, forgery, theft, larceny, embezzlement, wrongful conversion, or abstraction on the part of George Beverly Walker while employed in the service of your petitioner as an attorney in collecting notes and accounts, committed after the first day of February, 1914, and before the termination of said bond. . A copy of said contract is hereto attached, marked Exhibit A, and by this reference made a part of this petition. By the payment of the premium charged by said National Surety Company said contract was continued in force until the first day of February, 1917. While said contract continued in force, to wit, between February 1, 1914, and February 1, 1917, said George Beverly Walker, while employed in the service of your petitioner as attorney in collecting notes and accounts, collected on notes and accounts of your petitioner, entrusted to him for collection, the sum of . . $3,438.53, which he has failed and refused to pay over to your petitioner upon demand. Whereupon petitioner sustained a loss to said amount by reason of acts of personal dishonesty, embezzlement, and wrongful conversion on the part of said George Beverly Walker. An itemized statement of the collections aforesaid is hereto attached, marked Exhibit B, and by this reference made a part of this petition, showing the names of the debtors, the principal, interest, the total amounts due from the [them?] respectively, the amounts collected from them respectively, the amounts of such collections remitted to petitioner, and the balance of such collections not paid over or accounted for to petitioner.” Petitioner alleged also that it “did not have at the date of said contract any knowledge of said George Beverly Walker having been guilty of any act of personal dishonesty in any position in petitioner’s service or in the service of any other person, firm, or corporation,” and that when it did ascertain that he had been guilty of such acts it promptly notified the surety company as provided in its contract with that company.
    Each of the defendants filed a plea denying liability. Walker also pleaded that he had rendered certain services to plaintiff and had expended certain money for it and had overpaid it. This case was consolidated with that of Walker against A ver a Loan and Investment Company “to the extent only of trying them together.” The two cases were referred to an auditor, but this court is here concerned only with the case in which the Avera Loan and Investment Company is plaintiff. When the case reached the superior court after the auditor’s report there was a motion to recommit, which was overruled. There were also exceptions both of law and of fact, and these were also overruled.

      B. J. Fowler, John B. L. Smith, Grady 0. Harris, for plaintiff.

      Jones, Parle & Johnston, L. D. Moore, A. M. Lamar, for defendants.
   Bloodworth, J.

(After stating the foregoing facts.)

To the statement of facts and the headnotes we will add only the following:

This case was submitted to an auditor “to investigate the same and pass upon all questions of law not heretofore passed upon and all facts arising therein in accordance with the law in such cases made and provided.” (Italics ours.) The law “in such cases made and provided” is found in § 5129 of the Civil Code of 1910, and is as follows: “In all cases, unless modified by the order of appointment, in addition to the matter specially referred the auditor shall have’ power to hear demurrers, allow amendments, and pass upon all questions of law and fact.” This court is clearly of the opinion that under the terms of the submission, such as in this ease, as well as under the law itself, it is the right of the auditor to grant a nonsuit in all cases where “the plaintiff fails to make out a prima facie case, or if, admitting all the facts proved and all reasonable deductions from them, the plaintiff ought not to recover.” Civil Code (1910), § 5942.

This court is also of the opinion that the evidence in this case is ample to support the findings of the auditor “that the officers of the Avera Loan & Investment Company had knowledge of acts indicating dishonesty on the part of George Beverly Walker before the bond was renewed for the period in which the liability is claimed,” and that “the Avera Loan & Investment Company-failed to give the National Surety Company notice within the ten days, as provided in the bond, of acts indicating dishonesty on the part of George Beverly Walker.” The bond in this case indemnifies the Avera Company against any loss sustained “by reason of any act of personal dishonesty, forgery, theft, larceny, embezzlement, wrongful conversion, or abstraction on the part of George Beverly Walker, employee as attorney in collecting notes and accounts at Macon, Georgia, in the employer’s service, committed after the 1st day of February, 1914, and before the termination of this bond. Provided, that the employer shall not have had at the date hereof any knowledge of the employee having been guilty of any act of personal dishonesty, in any'position in the employer’s service, or in the service of any other person, firm, or corporation, and shall have notified the surety (at the surety’s expense) by telegraph and registered letter, giving all known particulars, addressed to its home office, No. 115 Broadway, New York City, within ten days after becoming aware of any such loss.” The contract between the Avera Loan and Investment Company and Walker provided that Walker should furnish good and sufficient security in the sum of $4,000, payable to said company “for the prompt and honest remittance of all funds, less his fees, collected by him.”

A contract between principal and agent for the handling of money, especially when that agent is an attorney at law, should be carried out in the strictest good faith and on principles of absolute honesty. Any unauthorized use of the funds of the principal by the agent for his personal benefit for any length of time, however short, even if with the idea that the money will be returned, is a violation of his obligation to his principal. In Orr v. State, 6 Ga. App. 629 (65 S. E. 582), Judge Russell said: “The defendant was convicted of embezzlement. His alleged criminal transactions ran through a long number of years. There are several instances clearly proved by the testimony, and not satisfactorily explained by the defendant, in which he took and used, for his own purposes, and in an unwarranted manner, money belonging to the bank. The defendant probably expected when he used this money that he would repay it (and it may be that the jury was authorized to find that after the defendant severed his connection with the bank he did repay it by means of a settlement made); but, legally speaking, he was guilty of embezzlement. Indeed no impartial unbiased legalist can read the testimony and the statement of the defendant without being convinced of two propositions: (1) that the defendant was guilty of embezzlement; and (2) that he probably did not fully realize, at the time the crime was being committed, that he was violating the law in this respect; and yet the two things are not inconsistent. While to constitute the offense of embezzlement there must be a criminal intent, still, where the money of the principal is entrusted to an agent and is knowingly used by the agent in violation of his duty, it is none the less embezzlement because he intended at the time to restore it. Metropolitan Life Ins. Co. v. Miller, 114 Ky. 154 (71 S. W. 921). There cannot, of course, be embezzlement where there is no intent to defraud; but there are cases where one uses the money of another which he has no right to use, and thereby he appropriates it to his own use; from which a fraudulent intent will be inferred, and the act be branded as embezzlement. People v. Wadsworth, 63 Mich. 500. Though there is much in the record to palliate the defendant’s offense, still, under the law as it is written, he is clearly guilty. Jackson v. State, 16 Ga. 551.” In Mangham v. State, 11 Ga. App. 427 (75 S. E. 512), this court held: “To constitute the offense of embezzlement there must be both a wrongful conversion and a fraudulent intent; but where money of the principal-is knowingly used by the agent for his own private benefit, and in violation of his duty to the principal, it is none the less embezzlement because at the time of the unlawful use the agent intended subsequently to restore the money. An officer or agent of a corporation cannot take money of the corporation, entrusted to him or. in his possession by virtue of his official relation or agency, and use it temporarily for his private benefit and avoid criminal responsibility by calling it a loan. The law calls such a transaction h wrongful conversion, from which a fraudulent intent can be inferred.” See also Dixon v. State, 16 Ga. App. 290 (85 S. E. 257).

Did Walker make prompt and “'honest remittance of all funds less his fees collected by him?” Let it be carried in mind that the bond sued on was given in 1914, and had endorsed thereon. “This bond is continuous in form and remains in effect for an indefinite period by payment of premium when due.” The premiums were paid and the bond kept in force during the years 1915 and 1916. As early as May, 1915, a check given by Walker for a collection he had made was returned by the bank to the Avera Company unpaid. This happened again in June, 1915, and several times during each of the years 1915 and 1916. To cover some of these dishonored checks Walker sometimes gave checks or money or both, and on some of these amounts, where checks were returned, partial payments only were made, and some of these amounts have never been paid and are sued for in this case. It is true that it was at times agreed between Denton, the President of the Avera Company, and Walker that the amount due on certain collections should be charged to Walker’s account. However, these agreements were always made after the checks had, been presented at the bank on which they were drawn and payment had been refused. Did not these acts show a “wrongful conversion” of the funds of the Avera Company? It is useless to burden the record with specific instances of these transactions. That a number of them were acts of personal dishonesty is shown by the petition itself; paragraph 7 of which, after alleging that Walker was indebted to plaintiff for money collected on notes and accounts entrusted to him to the amount of $3,438.52, which he had failed and refused to pay over to petitioner on demand, alleges that “petitioner sustained a loss to said amount by reason of acts of personal dishonesty, embezzlement, and wrongful conversion on the part of said Beverly Walker.” Did the Avera Company have knowledge of these “acts of personal dishonesty?” Mrs. Eeynolds, who was secretary and treasurer as well as bookkeeper of the Avera Company and who handled these transactions, necessarily knew of them. To questions asked her on the trial she answered as follows: Q. “You knew that Mr. Walker was failing to pay over to the Avera Loan & Investment Company money which he reported he collected?” A. “Well, he didn’t pay it over.” Q. “And you knew it in 1915 ?” A. “Yes, sir, but, as I said, it was always understood between him and Mr. Denton, and I was instructed to charge it to him. That was understood after he failed to pay the money and not before.” Q. “Was he using money which he collected, without paying it over?” A. “Well, I think he used some of the money, but I didn’t think at that time that he used it intending to hold it himself and not make it good. I thought that in 1915.” Denton, the president, also knew of some of these transactions, and yet, with the officers possessed of this knowledge and the bond providing that the Avera Company should give to the surety company notice of any act of “personal dishonesty, forge^, theft, larceny, embezzlement, wrongful conversion, or abstraction” on the part of Walker, “within ten days after becoming aware of any such act or facts indicating any such acts or any such loss,” it gave no notice to the surety company until October 23,1916, at which time it received information that Walker had collected a certain sum from L. W. Wilcox several months before, and had not remitted to cover the collection. It then notified the surety company. As this court sees the evidence, it is clear that the Avera Company was aware of facts indicating “personal dishonesty” on the part of Walker as early as the spring of 1915, long before the bond was renewed for 1916, and should have even then notified the surety company.

The foregoing shows that this court is of the opinion that the judge of the superior court properly refused to recommit the case to the auditor, that he did not err in overruling the exceptions either of law or of fact, and that he properly granted a nonsuit in favor of the National Surety Company.

The nonsuit as to Walker was properly granted. Evidently it was the intention of the plaintiff to sue on the bond alone-; and, as there is in the bond no covenant or promise of liability of Walker to the Avera Company, a recovery on the bond could not be sustained. This construction of the petition is borne out by the fact that the amount of recovery sought is the exact amount of the penal sum named in the bond, whereas the total loss alleged in the petition is considerably in excess of this amount. In addition the allegations in the petition are not sufficient to support an action for fraud and deceit or for money had and received.

(a) The judge properly taxed the auditor’s fee against the Avera Loan & Investment Company. Civil Code (1910), § 5980. See also §§ 5148, 5423; Moore v. Dickenson, 117 Ga. 887 (45 S. E. 241); Fitzpatrick v. McGregor, 133 Ga. 344 (4) (65 S. E. 859, 25 L. R. A. (N. S.) 50).

(6) The word “involving,” as used in this statute, means the ' amount for which suit is brought. In this case this is $4,000 principal, interest thereon, $1,000 damages, and $1,000 attorney’s fees. Should counsel and auditor think the statute does not make a sufficiently liberal provision for the auditor in any particular case, the Civil Code of 1910, § 514-9, provides how the fee may be fixed in advance. Central of Ga. Ry. Co. v. Central Trust Co., 135 Ga. 474 (5) (69 S. E. 708). The judge of the superior court is hereby directed so to modify his judgment as to the amount of the auditor’s fee as to conform to the provision of section 5148 of the code as construed above.

Judgment affirmed with direction.

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


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    15389.
    Smoky Joe v. The State.
    Decided May 13, 1924.
    Accusation of carrying pistol unlawfully; from city court of Miller county — Judge Geer. January 26, 1924.

      P. Z. Geer, for plaintiff in error:

      P. 1). Rich, solicitor, contra.
   Luke, J.

The evidence amply authorized the defendant’s conviction. There being no insistence upon the special assignments of error in the amendment to the motion for a new trial, and the trial judge having approved the finding of the jury, there is no legal reason why the judgment overruling the motion for a new trial should be set aside.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    15393.
    Felder v. The State.
    Decided May 13, 1924.
    Indictment for possession of liquor; from Dooly superior court —Judge Crum. January 19, 1924.

      Waits Powell, for plaintiff in error.

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

1. Under the qualifying note of the trial judge there is no merit in the first special ground of the motion for a new trial.

2. For no reason assigned should a new trial be granted because of the excerpt from the charge of which complaint is made in the second ground of the amendment to the motion for a new trial.

3. The evidence is sufficient to support the verdict.

Judgment affirmed.

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


text:
    15395.
    McDonald v. Blackmar.
    Decided May 13, 1924.
    Action, for damages; from Muscogee superior court — Judge Munro. February 9, 1924.
    Application for certiorari was denied by the Supreme Court.
    In the plaintiff’s petition as amended it is alleged: On February 19, 1923, and for several weeks prior to that date, the relation of landlord and tenant existed between the defendant and the petitioner, the petitioner then, occupying as the defendant’s tenant a described house and lot; and on that date and while the said relation existed, and while petitioner was preparing breakfast, at about six o’clock in the morning, she had occasion to carry from the wood-box in the kitchen of the said residence to a certain room in said house an armload of stove-wood; and, having placed several pieces of the wood on her left arm, to the height of her face and higher, she proceeded from the west side of the kitchen across the kitchen to a door in the east wall of the kitchen, leading to other parts of the house, and, just prior to reaching said door, and while exercising all due care and diligence, she stepped upon a board or plank which formed a part of the kitchen floor and which was about two feet from said door, and the plank gave way beneath her weight, plunging her leg through the hole or opening in the floor, in consequence of which she received injuries described. The plank gave way and injured petitioner as aforesaid because it was negligently and defectively constructed, in that it was laid in the floor without any support at all on one end of the plank, it being merely a short piece or remnant used to piece out a longer piece laid in the flooring from the west side of the kitchen to a point about two feet from the east wall, and beyond by several inches the last joist or sleeper .running north and south, supporting the kitchen floor; and the said short piece commenced at the east wall and terminated at a point two feet from the east wall and three or four inches short of meeting the first joint or sleeper running north and southwest of the east wall, and the only support holding the said plank was the narrow tongue or mortice joining it to the adjacent planks; and such support was entirely insufficient to prevent it from giving way and falling through when the weight of an adult person of average height and weight was placed squarely thereon, which must occur in the frequent and constant use of the kitchen floor by petitioner in the prosecution of her daily household duties. The failure so to lay the said plank as to give it support on both ends constituted a negligent and defective construction of the kitchen floor. The defendant has owned the premises for about twenty years, and by a reasonably diligent inspection, in the prosecution of his duty to keep the same in repair and in a reasonably safe condition for use by petitioner and tenants, should have ascertained that the floor was defectively and negligently constructed and in an unsafe condition, and corrected the same. Petitioner had"occupied the premises only a few weeks, the floor appeared Ann and sound from above, and the failure of the said plank to reach as far as the first joist, and the fact that it did not have any support except at one end, was not apparent to a casual inspection from above and in the kitchen, nor had petitioner any knowledge that the said plank was not so supported until the said accident, nor could she by the exercise of ordinary care and diligence have ascertained the defective, improper, and negligent construction of the floor. Petitioner was in the exercise of all reasonable care and diligence at the time of said accident, and could not in the exercise of such care and diligence have avoided it.
   Luke, J.

In this caso a tenant sought to recover damages from a landlord on account of an injury received by reason of the alleged defective construction of premises rented. The court properly sustained the general demurrer and dismissed the petition.

Judgment affirmed.

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

Petitioner alleges the following specific acts of negligence as being the sole and proximate cause of her injuries: Defendant was negligent in failing to discover and correct the.said negligent and defective construction of the premises in the course of his many years ownership and rental, so as to render the same safe for the usual and ordinary use thereof by petitioner as his tenant. Defendant was negligent in permitting said flooring to remain so laid in an unsafe and unworkmanlike condition over the course of many years ownership and control, knowing that said plank would not bear the usual and ordinary weights placed upon it in its daily use by a tenant. Defendant was negligent “in that he gave [ ?] your petitioner warning of the unsafe and defective construction of said flooring, nor any warning that said board or plank was so insecurely and defectively laid as aforesaid, to permit her to avoid placing her weight squarely on said board, and to thus avoid injury from its defective construction and -insecure position.” Defendant was negligent in that he rented to petitioner the said premises with knowledge that petitioner was to use the premises as a dwelling house or domicile, when, by reason of the defective and negligent construction of the kitchen floor as aforesaid, and the consequent danger to occupants of the premises, the premises were unfit for the purpose for which they were rented, and not in a condition suitable for use as a dwelling house, the purpose for which they were rented from the defendant..

In the demurrer it was contended, that no cause of action was set out; that no facts were alleged to show how the defendant, by the exercise of ordinary care, could have discovered the alleged defect; that the petition shows that the defendant could not, by the exercise of ordinary care, have discovered the alleged defects before the injury; that the petition, being most strongly construed against the plaintiff, shows that the defendant did not discover the defective condition of the floor before the injury; that the petition shows that if the defendant was negligent, the plaintiff was equally or more negligent; and that no facts are alleged to show why the plaintiff could not have discovered the defective condition of the floor by the exercise of ordinary care.

W. Paul Miller, Theo. J. McGee, for plaintiff,

cited: 20 Ga. App. 203 (3); 4 Ga. App. 680; 6 Ga. App. 80; 18 Ga. App. 248; 24 Ga. App. 94; 55 Ga. 180; 44 Ga. 489; 56 Ga. 11; 58 Ga. 204 (1).

A. W. Cozart, J. JS. Chapman, for defendant,

cited: 112 Ga. 901 (1, 2); 30 Ga. App. 462 (2 a); 20 Ga. App. 203.


text:
    15404.
    Cearley v. The State.
   Bloodworth, J.

1. When the entire charge of the court is considered, no error requiring the grant of a new trial was committed in charging the jury as follows: “Where a larceny from the house has been shown by proof, and shortly thereafter the defendant on trial is shown to be in possession of some of the goods so taken from tlie store-house or house, that proof may be sufficient to authorize his conviction, unless he satisfactorily accounts for his possession. As to whether the possession is satisfactorily accounted for is a question for” the jury. On the effect of the unexplained possession of stolen goods, the larceny from the house being otherwise established, the charge conforms, in substance to the ruling in Mangham v. State, 87 Ga. 549 (1) (68 S. E. 518), and eases there cited (p. 551).

Decided May 13, 1924.

Indictment for larceny from house; from Cherokee superior court —Judge Blair. January 19, 1924.

Morris, Hawkins & Wallace, for plaintiff in error.

John 8. Wood, solicitor-general, contra.

2. While the evidence to connect the defendant with the crime is rather weak and unsatisfactory, this court cannot say that there is no evidence to support the verdict.

Judgment affirmed.

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


author: Bloodwobtii, J.

text:
    15411.
    Thompson v. The State.
    Decided May 13, 1924.
    Indictment for possession of liquor; from Haralson superior court — Judge Irwin. December 27, 1923.

      I. N. Cheney, for plaintiff in error.

      E. 8. Griffith, solicitor-general, contra.
   Bloodwobtii, J.

1. “Where the court provisionally admits evidence on the promise of the solicitor-general that he will subsequently connect the same and show its relevancy, it is not incumbent on the judge, of his own motion, to determine whether such promise has been kept and to exclude the testimony, without a request to that effect by the defendant. ” Thomas v. State, 129 Ga. 419 (59 S. E. 246). See Sasser v. State, 129 Ga. 543 (3) (59 S. E. 255), and cases cited (p. 546); Quinn v. State, 22 Ga. App. 634 (2) (97 S. E. 84), and cases cited. The principle announced in the foregoing cases disposes of ground 2 of the amendment to the motion for a new trial.

2. There is some evidence to support the verdict, and where this is true, and no error of law is shown to have been committed during the trial, this court is powerless to interfere.

Judgment affirmed.

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


text:
    15417.
    Crowley v. The State.
    Decided May 13, 1924.
   Luke, J.

1- A conviction of larceny was authorized by the evidence.

2. The seven grounds of the motion for a new trial, as to the exclusion of evidence, the alleged insufficiency of evidence, and alleged error in excerpts from the charge of the court, are without substantial merit. The defendant has had a legal trial, and for no reason pointed out did the court err in overruling the motion for a new trial.

Judgment affi/rmed.

Broyles, O. J., and Bloodworlh, J., concur.

Indictment for larceny from house; from Lowndes superior court ■ — -Judge Dickerson presiding. February 16, 1924.

II. B. Edwards, Hendricks & Hendricks, for plaintiff in error. ~

G. E. Hay, solicitor-general, Eva L. Hay, contra.


text:
    15418.
    HEAD v. THE STATE.
    1. The demurrer to the indictment, on the ground that the grand jury had not found it to be time, but had found it not true, was properly overruled.
    2. When considered in connection with the remainder of the charge and in the light of the evidence, no part of the charge complained of contains error requiring the grant of a new trial; nor is a new trial demanded because the judge failed to give certain instructions.
    3. There is evidence to support the verdict.
    Decided May 13, 1924.
    Indictment for niurder — conviction of manslaughter; from Douglas superior court — Judge Irwin. February 8, 1924.
    Application for certiorari was denied by the Supreme Court.

      J. II. McLarty, Aslor Merritt, Morris, Hawkins & Wallace, for plaintiff in error.

      J. S. Edwards, solicitor-general pro tem., J. R. Hutcheson, D. S. Strickland, contra.
   Bloodworth, J.

We will discuss only the demurrer to the indictment. The demurrer alleged that the grand jury had “never found the same to be true, but on the contrary have found the same Not True/ and therefore the purported bill of indictment is void.” The court was asked to quash the indictment. An endorsement on the back of the indictment shows that it was “returned into open court by the grand jury.” On the back of the indictment the following endorsements also appear: “The State vs. Leonard Head. Murder. J. M. Boyd, Foreman pro tem. True bill. E. S. Griffith, Solicitor-General. Special presentment.” It will thus be seen that the entries on the indictment show that the grand jury did find the bill true, and it was regularly returned into court. “In the case of Barlow v. State, 127 Ga. 58 (56 S. E. 131), Justice Lump-kin quoted with approval the statement made in Williams v. State, supra (107 Ga. 724), that The real entry which is necessary to give the paper authenticity as an indictment by the grand jury is the endorsement of that action upon the paper, signed by the foreman of that body.’ ” Willerson v. State, 14 Ga. App. 455 (81 S. E. 392). That on the back of the endorsement both the words “true bill” and “special presentment” appear can make no difference in this case. In Switzer v. State, 7 Ga. App. 10 (65 S. E. 1081), this court, speaking through Chief Judge Hill, said: “The distinction between a special presentment and a bill of indictment, even under the old practice, according to Mr. Bishop, in his work on Criminal Procedure (§ 136), was very thin; and even this distinction has been abolished in practice for many years in this State. The solicitor is not required to frame any indictment on a special presentment, but the special presentment of the grand jury is returned into court, and upon it the defendant is arraigned and tried. In other words, it has the same force and effect as a bill of indictment. The only formal difference.between the two is that a prosecutor prefers a bill of indictment, and a special presentment has no prosecutor, but, in theory, originates with the grand jury. Even this difference between a bill of indictment and a special presentment no longer exists, and the finding of the grand jury is prepared by the solicitor-general and called a bill of indictment, or a special presentment at his will.” In Barlow v. State, 127 Ga. 58 (56 S. E. 131), the first headnote is as follows: “In this State all special presentments of the grand jury charging defendants with violations of the penal laws are treated as indictments.” See also Penal Code (1910), § 956. Nor does it make any difference that the name of the foreman was written above the words “true bill” or “special presentment.” See Barlow v. State, supra. Nor does it matter that the indictment is signed by a member of the grand jury as foreman pro tern. In White v. State, 93 Ga. 47 (2) (19 S. E. 49), it is held: “When it appears upon the face of an indictment that a named grand juror served as 'foreman pro tern.’, and the finding of 'true bill’ was signed by him as such, the presumption is that the juror was properly serving as foreman in that case.” Indeed, in the brief of counsel for plaintiff in error, they say: “It is true that the statement is first made on the indictment that it is found to be true.” The only insistence by counsel for plaintiff in error is that the grand jury had not found the bill true because it Avas returned into court “with the following notation made thereon or attached thereto: 'We, the grand jury for the March term, 1923, find bill against Leonard Head true, with recommendation that he be tried for manslaughter instead of murder. This recommendation made to save the drawing of another bill charging manslaughter instead of murder. J. M. Boyd, Foreman pro tern.’ ” The certificate of tire clerk shows that the above recommendation of the grand jury was not written on the indictment, but was “attached to said bill of indictment by the grand jury.” As shown above, the indictment in this case was found true and regularly returned by the grand jury, and nothing contained in the paper attached to it by the grand jury would invalidate it. See Edwards v. State, 121 Ga. 590 (1) (49 S. E. 674). The demurrer was properly overruled.

Judgment affirmed.

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


text:
    15425.
    Humbert v. The State.
    Decided May 13, 1924.
    Certiorari; from Chatham superior court — Judge Meldrim. January 8, 1924.
    Humbert was convicted under section 359 of the Penal Code (1910), it being charged that he and others assembled for the purpose of disturbing the public peace, and did not disperse on being commanded to do so by the sheriff.

      Robert L. Golding, for plaintiff in error.

      Walter G. Eartridge, solicitor-general, contra.
   Luke, J.

The evidence raised a strong suspicion of the defendant’s guilt, but was not sufficient to authorize the conviction. It was therefore error to overrule and deny the certiorari.

Judgment reversed.

Broyles, O. J., and Bloodworhh, J., concur.


text:
    15426.
    LEE v. THE STATE.
    A general verdict of guilty upon an indictment containing two counts is not sustainable where there is no evidence to support a conviction on one of them.
    Decided May 13, 1924.
    Indictment for violating liquor law; from Douglas superior court —Judge Irwin. February 9, 1924.

      Astor Merritt, for plaintiff in error.

      E. 8. Griffith, solicitor-general, contra.
   Bloodworth, J.

Tlie indictment in this case contained two counts; the first charging the accused with manufacturing intoxicating liquor, and the second charging that he did “have and possess on his premises” apparatus for the distilling and manufacture of such liquors. Granting that the evidence authorized the conviction of the accused on the first count, there is absolutely no evidence that there was on his premises any of the apparatus named in the indictment. A general verdict of guilty upon an indictment containing two counts charging different offenses cannot be sustained where there is no evidence to support a conviction upon one of the counts. Jones v. State, 27 Ga. App. 600 (110 S. E. 37), and cases cited; Brooks v. State, 27 Ga. App. 629 (109 S. E. 548), and cases cited (p. 630).

Judgment reversed.

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


text:
    15431.
    Burnett v. Mal-Gra Castings Co.
    Decided May 13, 1924.
    Complaint; from city court of Thomasville — Judge Hammond. January 24, 1924.

      D. Boy Hay, for plaintiff in error.

      B. B. Earle, contra.
   Luke, J.

The only question raised is upon the sufficiency of the evidence to authorize a verdict in favor of the plaintiff; and the evidence amply supported,-if indeed it did not demand, the verdict.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., ooneur.


text:
    15446.
    Byrd v. The State.
   Bloodworth, J.

1. Granting (but not deciding) that the evidence the admission of which is complained of in the 4th ground of the motion for a new trial should have been excluded, the error was harmless, as practically the same evidence from the same witness was admitted without objection. Payne v. Simmons, 27 Ga. App. 506 (2) (109 S. E. 168).

2. For no reason assigned did the court err in admitting the evidence of which complaint is made in the 5th ground.

3. Ground 6 alleges that the court erred in admitting the evidence of J. W. Cowart as to the execution of a certain contract. It was not error to admit this evidence over the objection urged against it. Moreover, this ground of the motion carries its death wound upon its face, as it sliows that in the objection to the admission of this evidence counsel for the defendant stated that the prosecuting attorney had “already proven by C. A. Rogers that it was executed and it had been admitted in evidence.”

Decided May 13, 1924.

Indictment for perjury; from Tattnall superior court — Judge Sheppard. February 9, 1924.

W. T. Burklmlter, for plaintiff in error.

J. Saxon Daniel, solicitor-general, contra.

4. Where a landlord prosecuted his tenant for disposing of the crop grown on the rented land “without having paid the rent due the landlord and for supplies to make said crop,” it was necessary to show that the landlord had actually furnished the supplies to make the crop. This was a material issue on the trial of the case, and a note given to the landlord by the tenant (and a cotenant) in which it was stipulated that it was given for “ supplies, money, stock, fertilizer, etc., furnished us for making a crop for the year 1919 as his tenant,” was relevant as a part of the proof to establish the fact that the landlord had furnished the supplies to'make the crop. If the landlord actually furnished the supplies to make the crop for 1919 he would have a lien on the crop raised on the rented premises for that year, even though the note for the supplies bore date November 18, 1918. Johnson v. McDaniel, 138 Ga. 203 (1) (75 S. E. 101); Lowe v. Warbington, 144 Ga. 181 (2, 3) (86 S. E. 537). Under the foregoing ruling there is no merit in ground 8 of the motion for a new trial.

5. There is nothing in grounds 7, 9, 10, or 11 of the motion for a new trial which would require a reversal of the judgment.

6. There is evidence to support the finding of the jury.

Judgment affirmed.

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


author: Duke, J.

text:
    15465.
    Long v. The State.
    Decided May 13, 1924.
    Indictment for assault with intent to murder; from Jackson superior court — Judge Russell. February 9, 1924.
    Long was charged with having put calcium arsenate in flour, to poison his wife, who ate bread made from the flour and became ill. Two of his children, one eight years old and the other eleven, were witnesses against him. In the motion for a new trial it is contended that the judge erred in submitting to the jury the admissibility of the testimony of witnesses of tender years; that “the court is the sole judge of the admissibility of such evidence, and it is not a matter finally left to the jury,” and that the charge on this subject was prejudicial to the defendant. The instructions complained of are as follows: “Now, on the subject of the admissibility of the evidence of a child of tender years, our courts have held this to be the law, and you are instructed that this is the law on that subject: When a witness of tender years is produced in a trial the duty devolves upon the court to make a preliminary examination to determine whether such witness is prima facie of such capacity and age as to understand the obligations of an oath, in.order that the court may determine whether it is proper to allow the testimony of such witness to go to the jury to be considered by them. This examination by the court is merely preliminary on the competency of the witness; and if the court is satisfied that the witness is not of sufficient age or capacity to understand the obligation of am oath, it is the duty of the court to exclude the witness altogether; but if the court is not so satisfied, and the circumstances are such as there may be a doubt as to the capacity of the witness, then it is the duty of the court to allow the witness to testify, and make in the presence of the jury an examination as to the capacity of the witness, and all of the testimony of the witness and all of the evidence as to the capacity of the witness, and the demeanor of the witness on the stand, go to the jury for them to determine at last whether the witness is of such age and capacity as they may think the witness can understand the obligation of an oath, and whether the witness’s evidence should be considered.- In determining this question you may take into consideration the appearance of the witness, his immature years, his age, if it appears in the evidence, the manner in which he testifies, and all of the circumstances surrounding the examination of the witness in your presence. If the jury reaches the conclusion, after considering all these matters, that the witness in question was, although of immature years, of such age and capacity as that he understood what he was doing when he was testifying before you, then you may be authorized to believe this witness as to such facts and circumstances testified to by him before the jury as impressed themselves on your minds as being established to your satisfaction. If, however, after considering all the circumstances surrounding the witness that appeared before you during the progress of his examination, the jury reaches the conclusion that he is of such immature years that he does not understand the obligation of an oath, then, of course, the jury would be authorized to eliminate his testimony from the ease altogether. But all of these matters [are] for you to determine, taking into consideration all of these circumstances and the manner in which he testified, the manner of his examination, and give to that witness such credit, and such credit only, as you see proper to give, under your convictions, after you have reached your conclusions as to whether his immature years were such as ho did not appreciate the circumstances by which he was surrounded or had no definite recollection of these things to which his testimony relates. If, however, the jury reaches the conclusion that he is to be believed by you, then give his testimony just such credit as in your judgment it is entitled to. In other words, after you reach the conclusion that he is a competent witness, under the law, to testify to whatever he may know about the transaction, you deal with his testimony just as you deal with the testimony of other witnesses, and weigh it, and give it such consideration and such weight only as you see proper to give it, under all the facts and circumstances of the particular case that arise from a witness of immature years being called to the stand.”
   Duke, J.

1. The evidence authorized a conviction of the offense of assault with intent to murder.

2. The special ground of the motion for a new trial, as to the charge of the court upon the testimony of a child of tender years, in view of Shields v. State, 16 Ga. App. 680 (85 S. E. 1057), and cases there cited, is without merit.

3. The defendant has had a legal trial, and for no reason pointed out was it error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloockuorth, J., concur.

A. C. Brown, for plaintiff in error.

Pemberton Cooley, solicitor-general, contra.


text:
    15466.
    Jarvis v. The State.
    Indictment for larceny of automobile; from Bibb superior court —Judge Mathews. February 25, 1924.

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

      Charles H. Garrett, solicitor-general, contra.
   Bloodworth, J.

When considered in connection witli the remainder of the charge, there is no error in any of the excerpts therefrom of which complaint is made in the motion for a new trial; the venue was proved, there is evidence to support the verdict, and the judgment is

Affirmed.

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


text:
    15468.
    MONTGOMERY v. THE STATE.
    A conviction of carrying a pistol without a license was not authorized by the evidence.
    Decided May 13, 1924.
    Accusation of canning pistol; from city court of Eloyd county— Judge Bale. March 10, 1924.
    The only witness was a policeman, who testified: that the defendant was one of three negroes who were talking together when he arrested them at night, that he found a concealed pistol on one of the others, and saw another throw a pistol on the ground, which he (the witness) picked up; that he took the negroes in the yard of Eoser, near which they had been standing, and “pinned them up in a space near Mr. Boser’s porch” until they were taken to the lockup; that he went back to the same place the next morning and found a hacksaw and a pistol hidden in a flower-box on Boser’s porch near where he had the negroes the. night before, and that in the police court the next morning the defendant “admitted that he put a pistol in the flower-box at Boser’s.” On cross-examination the witness said: “The only thing that I know to connect the defendant with the pistol is what he said in police court the next morning after I told him that I had found a pistol in the flower-box.”

      Porter & Mebane, for plaintiff in error,
    cited: 2 Ga. App. 654, and cit.; 15 Ga. App. 484; 4 Ga. App. 458, 58; 7 Ga. App. 197; 118 Ga. 320.

      James Maddox, solicitor, contra,
    cited: 15 Ga. App. 484; 14 Ga. App. 521; 12 Ga. App. 81; 45 Ga. 44 (5); 64 Ga. 605; 121 Ga. 615 (5); 10 Ga. App. 33.
   Luke, J.

Montgomery was convicted of carrying a pistol without license. The evidence did not meet the requirements of law, and for this reason the conviction was unauthorized. It was error to overrule the motion for a new trial.

Judgment reversed.

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


text:
    15469.
    ROBERTS v. THE STATE.
    1. Tlie purpose of allowing tlie accused in a criminal case to give bond is at least twofold; to prevent punishing the accused before conviction, and to secure his attendance upon the court at the time named in the bond.

      (а) The sureties on a criminal bond are as the four walls of a jail, and “in order to fully discharge their obligations, they are obliged to secure their principal’s presence and put him as much in the power of the court as if he were in the custody of the proper officer.”
    (б) The failure of the defendant to appear in accordance with the provisions of the bond will operate as a breach thereof.
    (e) The proceeding to forfeit a criminal recognizance is a civil case, and the law in this State allows the sureties until the criminal ease is called at the next term after they have been served with notice of the forfeiture, to produce their principal; but the proceeding to forfeit the bond does not, “as a matter of law,” result in the continuance of the criminal case for a term.

      (d) When a criminal case is called, and in obedience to the order of the court the accused is rearrested and taken in custody by the proper officer, this abrogates the bond so far as the principal sum thereof is concerned.

      (e) The undertaking of the sureties on a criminal bond is stricti juris, and where the bond obligates the principal to be- present at a specified term of court, but contains no provision for his appearance from term to term, or other like provision, the appearance of the principal at the term specified in the bond would be a compliance with the condition thereof.
    2. Eor no reason assigned in the demurrers should the accusation have been stricken.
    3. It is not insisted that the evidence is insufficient to support the verdict.
    Decided May 13, 1924.
    Accusation of diversion of gas; from city court of Eloyd county —Judge Bale. March 10, 1934.

      Porter & Mebane, for plaintiff in error.

      James Maddox, solicitor, contra.
   Bloodworth, J.

Plaintiff in error was arrested and gave bond for his appearance at the March term, 1934, of the city court of Eloyd county, to answer to the accusation, in which he was charged with a misdemeanor. During that term the ease was called for trial and he was not in court. Thereupon the judge ordered the sheriff to arrest the accused and bring him into court to answer to the charge for which he had given bond and for which an accusation against him was pending. The sheriff arrested the accused and placed him in jail. So far as the record shows, there was at the time no protest as to this action of the sheriff, and no offer to give an additional bond. Wlien the case was called for trial the accused filed a motion in which he alleged in part: “Defendant shows that inasmuch as this is the first term of court after the original arrest of defendant and the taking of bond, and being the first term after said accusation was filed in said case, and defendant being in possession of his bondsmen, and that said bond is amply sufficient, that his arrest under the order of the court as aforesaid, and the order of the court, is illegal, and that defendant is entitled to his discharge, and that the defendant as a matter of law had the right to forfeit his bond at this the March term of court, and that the court had no right, under the law, to issue an order for the defendant’s arrest, and that the sheriff of said county had no right to rearrest the defendant for said offense for which he had heretofore as aforesaid been arrested and given legal bond, his bond having never been forfeited nor any rule nisi issued. Wherefore, defendant prays the court for a discharge upon the ground that he is in the custody of his bail, who has not surrendered him, and that the court not proceed to compel defendant to go to trial at this the March term, 1924, of said county [court P] and prays that the court release him under his original bond aforesaid, so that he may depart hence until the June term, 1924, of this court, at which said time under and by law this defendant will be present and 'present himself to this court for trial of said case as is by law provided.” The prosecuting attorney admitted the facts alleged, and upon a hearing of the motion it was overruled.

The defendant then demurred to the accusation, which was in three counts. The solicitor struck the first count; so this court is concerned only with the other two. The demurrers were overruled. The trial resulted in a verdict of guilty. A motion for a new trial was overruled, and the defendant excepted.

Let it be remembered that there was no motion to continue the case upon any of the grounds for which provision is made by the code, and that the only reason urged for a continuance is that set out in the motion shown in the foregoing statement of facts. The court properly overruled the motion to release the accused from the custody of the sheriff and continue his case until the June term of the court. What is the purpose of such a bond as was given in this ease? It is at least twofold: to prevent punishing the accused before his conviction, and to secure his attendance at the time named in the bond. No copy of the bond given in this case appears in the record. However, from the motion to which reference is made above, we learn that the bond was “conditioned on the defendant being and appearing at the March term, 1924, of the city court of Floyd county, Georgia.” Under this bond it was the duty of the accused to be present at all times during the March term, to answer the call of the court to do whatever the law required of him. It was the duty of his bondsmen to see that the principal at all times during the term was present to respond to the call of the court. If the defendant had been placed in jail, he could at any time on the call of the case have been' brought into court for trial. The bondsmen are as the four walls of the jail, and “in order to fully discharge their obligations, they are obliged to secure their principal's presence and put him as much in the power of the court as if he were in the custody of the proper officer.” 3 R. C. L. 42, § 48; 6 C. J. 1030-, note 27(a). A failure of the defendant to appear in accordance with the provisions of the bond will operate as a breach thereof. Penal Code (1910), § 961. If a jury qualified to try the defendant is in attendance on the court, and the prosecuting attorney calls the case and announces that the State is ready to fry it, or if the judge calls the case in its order and the accused does not answer, the court can proceed to forfeit the bond. The proceeding to forfeit’ a criminal recognizance is a civil case. Perkins v. Terrell, 1 Ga. App. 250 (2) (58 S. E. 133); Vaughn v. Candler, 113 Ga. 9 (2) (38 S. E. 352). The law in its leniency to the bondsmen allows them until the criminal ease is called at the next term after they are served with notice of the forfeiture, to produce the principal and save themselves from final judgment as to the principal sum of the bond. See Boswell v. Colquitt, 73 Ga. 63; Freeman v. State, 112 Ga. 648 (37 S. E. 886). But the mere fact of the forfeiture does not necessarily, “as a matter of law,” result in the continuance of a criminal case for a term. In ex parte Mariano, 34 Rhode Island, 536 (84 Atl. 1087), the court said: “From the nature and the purpose of criminal proceedings, the authority is inherent in the Superior Court to require respondents in criminal cases pending before it to give additional bail whenever in the judgment of that court such additional bail becomes necessary to secure the presence of the respondent before it-for trial or for sentence, provided the additional bail required be not excessive in amount. The jurisdiction of the court to try the respondent upon the charge against him or to impose sentence upon him is dependent upon his presence before the court at the trial or at the time of sentence as the case may be. The purpose of holding a respondent in custody is to secure his attendance at the trial or for sentence; and when he is bailed, although the immediate custody over him passes to the surety or sureties upon the recognizance, it is not intended thereby to jeopardize the right of the State to proceed against him upon the criminal charge. . . The purpose of a criminal proceeding is not to secure to the State the obligation of the respondent and the sureties in a penal sum. Such obligation is merely incidental to the main proceeding; is taken for the benefit of the respondent; and is permitted, as far as such grace can be granted, without affecting the rights of the State or the performance by the State of its duty under the criminal law. By the acceptance of such recognizance by the court, the State does not bargain away for a penalty its right to have the attendance of the respondent when required, nor does the court lose its authority to take such action as it may consider necessary to further its execution of the law. In re James, 18 Fed. Bep. 835. If the recognizance be defaulted the right of the State is not restricted to a recovery of the penalty, but it may take proceedings to enforce the penalty, and at the same time bring the respondent before the court and go on with his prosecution upon the criminal charge.”

Counsel for the plaintiff in error urged that “the defendant as a matter of law had the right to forfeit his bond at this the March term of court.” The members of this court know of no such provision of the law. On the contrary, the whole scheme of our law looks to a speedy trial of all criminal cases. To this end the constitution of the State, in article 1, section 1, paragraph 5 (Civil Code of 1910, § 6361), provides that every person charged with an offense against the laws of this State shall have a public and speedy trial before an impartial jury; and § 983 of the Penal Code of 1910 gives to every person accused of a crime, where the offense is not one affecting his life, a right to “demand a trial at the term when the indictment is found, or at the next succeeding term thereafter, or at any subsequent term, by special permission of the court, which demand shall be placed upon the minutes of the court; and if such person shall not be tried at the term when the demand is made, or at tlie next succeeding term thereafter, and at both terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the indictment.” Section 959 provides: “No person shall give bail more than twice before trial for the same offense, after presentment or indictment found.” And § 986 is in part as follows: “Every person against whom a bill of indictment is found shall be tried at the term of the court at which the indictment is found, unless the absence of a material witness, or the principles of justice, should require a postponement of the trial.” In addition, under the ruling in Smith v. Kitchens, 51 Ga. 159, when a case was called and the defendant failed to appear and the court ordered his rearrest for the same offense, and he was taken in custody by the sheriff, this abrogated his bond. The case just referred to was one in which a bond was given prior to indictment, and after being indicted the accused was arrested under a bench warrant. In the opinion in that case (p. 160) Judge McCay said: “The course pursued in this case is the common practice in the State, and has been for many years. Especially after indictment found, the judge of the court where the indictment is orders the rearrest of one under bail, at his discretion. As we have said, it is a very proper thing often for the judge to do, and if such a power did not exist, it would be a great defect in our criminal law.” See in re Mariano, supra. Moreover, as hereinbefore stated, all we know of the condition of the bond is what is stated in the motion to continue, and that shows that the defendant was to appear at the March term of the court. The record does hot show that the bond provided for the appearance of the defendant “from term to term.” In Colquitt v. Smith, 65 Ga. 341, it was held: “Where the condition in a criminal recognizance was that a principal should appear at a particular term of court, but it contained no provision as to appearing from term to term, or other like provision, the appearance of the principal at the specified term was a compliance with the condition, and her failure to appear at a subsequent term to which the case was continued would not subject the sureties to a forfeiture.” In that case Justice Crawford said (p. 342) : “The only question made by this record therefore is, whether the condition in a recognizance which binds the principal to appear at a particular term of the court, to answer upon a criminal charge can be construed to extend the said appearance from term to term, so as to make the securities liable to a forfeiture for a failure of their principal to appear at any other term than that named in the bond. We hold that it cannot; as the undertaking of the security is stricti juris, he cannot in law or equity be bound further than the very terms of his contract. Code, sec. 2150 [Civil Code of 1910, § 3540]; 10 Ga. 235.” As the undertaking of a surety is one of strict law, under the record as it is brought to us the bond obligated the accused to be present at the March term of court only, and, the defendant not having been present when his case was called, the bond became functus officio, and the defendant was properly ordered into custody.

Counsel for plaintiff in error refer to the cases of McDaniel v. State, 103 Ga. 268 (30 S. E. 29); Oglesby v. State, 121 Ga. 603 (49 S. E. 706), and Huggins v. State, 25 Ga. App. 41 (103 S. E. 32). If there is an apparent conflict between the ruling in those cases and the ruling of this court in the present case, an examination of the cases cited will show that the apparent conflict is in the portions of the decisions that are obiter.

The accusation in this case contained three counts. The first was stricken by the solicitor. For no reason assigned in the demurrers to counts 2 and 3 should the accusation be stricken. The defendant was charged with a purely statutory offense, and the accusation follows substantially the language of the statute. See Ga. L. 1916, pp. 153, 154, and Park’s Ann. Code Supp., vol. 11, § 230 (d). “An indictment for a purely statutory offense is sufficient which describes the offense in the language of the statute.” Stoner v. State, 5 Ga. App. 716 (63 S. E. 602). Seé Penal Code (1910), § 954; Skipper v. State, 23 Ga. App. 155 (97 S. E. 866); Moore v. State, 27 Ga. App. 782 (110 S. E. 55); Carson v. State, 22 Ga. App. 743 (1) (97 S. E. 202).

Judgment affirmed.

Broyles, C. J., and Dulce, J., concur.


author: Bboyles, C. J.

text:
    14667.
    Parks et al. v. Hardwick, Governor.
   Bboyles, C. J.

1. “Where the principal in a misdemeanor criminal case and his sureties sign a recognizance and mail the same to the sheriff of the county where the indictment against the principal has been returned, or to his agent in another county, and where, under the direction of the sheriff, the bond, without having entered thereupon the approval and acceptance of the same, is returned to the sureties who reside in another county of this State, for the purpose of obtaining the affidavit of the sureties as to their financial responsibility, and such affidavit is made, and these papers are placed in the United States mail addressed to the accused in the county where he is detained in jail, but before the arrival of the papers the principal escapes from jail, it cannot be said that the principal obtained his liberty by reason of the bond, there being no evidence of the acceptance and appi'oval of the bond prior to the escape of the principal. It was error to hold that the trial judge was authorized to render a judgment of forfeiture absolute against the sureties on such bond.” Parks v. Hardwick, 158 Ga. 71.

Decided May 13, 1924.

Forfeiture of recognizance; from Stewart superior court — Judge Littlejohn. April 25, 1923.

Bussell & Chandler, for plaintiffs in error.

Jule Felton, solicitor-general, contra.

2. Under the above ruling the judgment of affirmance rendered by this court in this case (30 Ga. App. 673) was error. That judgment is, therefore, vacated, and it is now held that under the facts of the case the trial judge erred in rendering a judgment of forfeiture absolute against the sureties on the bond.

Judgment reversed.

Luke and Bloodioorth, JJ., concur.


author: Brotles, O. J.

text:
    15394.
    Waters v. The State.
    Decided May 14, 1924.
    Accusation of possession of liquor; from city court of Metter— Judge Lanier. January 30, 1924.

      Kirhland & Kirhland, for plaintiff in error.

      C. W. Turner, solicitor, contra.
   Brotles, O. J.

The conviction was authorized by the evidence, and none of the special grounds of the motion for a new trial shows cause for a reversal of the judgment overruling the motion.

Judgment affirmed.

Luke and Bloodioorth, JJ., concur.


author: Brotles, C. J.

text:
    15397.
    Nix v. Bassett.
   Brotles, C. J.

1. Where a ease has been marked in default, and the defendant, at the trial term, moves to open the default, pays the costs, and makes a showing under oath, setting up a meritorious defense, offers to plead instanter, and announces ready to proceed with the trial, the judge in passing on the motion has a wide discretion, and that discretion will not be controlled by the reviewing court unless it has been manifestly abused to the injury of the plaintiff. Thompson v. Kelsey, 8 Ga. App. 23 (1) (68 S. E. 518), and citations. Under the facts of the instant case it does not appear that the court erred in overruling the demurrer to the petition to open the default, or in admitting, over the objection of the plaintiff, the evidence on the motion to open the default, or in passing an order opening the default and permitting the defendant to plead.

Decided May 14, 1924.

Action for damages; from city court of Houston county — Judge Riley. January 22, 1924.

Jule W. Felton, for plaintiff.

Norman E. English, for defendant.

2. Under the particular facts of the case a verdict for the defendant was demanded, and the court did not err in directing a verdict in his favor.

Judgment affirmed.

Lulce and Bloodtoorth, JJ., concur.


author: Broyles, C. J.

text:
    15400.
    RILEY v. AMERICAN NATIONAL INSURANCE CO.
    The action being upon an insurance policy which provided that it did not cover any loss from disease “not common to both sexes,” and the only issue to be determined being whether a fibroid tumor' was a disease covered by the policy, and there being undisputed evidence that men can not have fibroid tumors, and that only women can be so afflicted, the court did not err in directing a verdict for the defendant.
    Decided May 14, 1924.
    Appeal; from Chatham superior court — Judge Meldrim. January 11, 1924.

      O. E. Johnson, O. E. Alexander, for plaintiff.

      Frederick A. Tuten, for defendant.
   Broyles, C. J.

This was a suit upon a health and accident insurance policy. Upon the trial it was agreed in open court by both parties that the only question in issue and to be determined by the court and jury was whether or not a fibroid tumor was a disease or disability covered by the policy. The policy of insurance provided that it did not cover any loss resulting from any disease “not common to both sexes;” and the undisputed evidence was that men.cannot have fibroid tumors — that only women can be so afflicted. It follows that the court properly directed a verdict in favor of the defendant.

The case of Schuler v. American Benefit Association, 132 Mo. App. 123, cited by counsel for the plaintiff in error, is distinguished by its particular facts from this case.

Judgment affirmed,.

Luke and Bloodworth, JJ., concur.


text:
    15405.
    Hendrick v. Foster.
    Decided May 14, 1924.
    Attachment; from Heard superior court — Judge Eoop. January 19, 1924.

      D. B. Whitaker, 8. Holderness, for plaintiff.

      Hall & J ones, for defendant.
   Broyles, C. J.

The only assignment of error in the bill of exceptions is upon the overruling of the plaintiff’s motion for a new trial, which contained only the usual general grounds. Erom a study of the record it cannot be held that the verdict was not supported by any evidence; and, the finding of the jury having been approved by the trial judge, this court is without authority to interfere.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15406.
    Nelson v. Parker.
    Decided May 14, 1924.
    Rehearing denied June 10, 1924.
   Luke, J.

1. While it is true that “a vendor who has taken a note for the purchase price of personalty and has reserved title in himself until full payment of the purchase money cannot in an action of trover for the property after a default in payment recover the value of the property from the vendee until the note has been delivered up to him or has been sufficiently accounted for so that the vendee will incur no further risk of liability thereon” (Smith v. Commercial Credit Co., 28 Ga. App. 403 (4), 111 S. E. 821, and cases cited), yet where the plaintiff elected to take a money verdict in lieu of the property, and brought into court and introduced in evidence the note in question, and where it indisputably appeared from the evidence that the plaintiff was the owner of the note and that the indebtedness evidenced thereby was past due, it followed, as a necessary conclusion, that, when the plaintiff prevailed according to his election, neither he nor any other person could ever enforce any further liability upon the note. See Securities Trust Co. v. Marshall, 30 Ga. App. 379 (7) (118 S. E. 478), and citations.

2. The evidence amply authorized the verdict returned, and the court did not, for any reason assigned, err in overruling the motion for a new trial.

Judgment affirmed.

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

Trover; from city court of LaGrange — Judge Duke Davis. January 10, 1924.

Ilallie B. Bell, M. U. Mooty, for plaintiff in error.

L. B. Wyatt, contra.


text:
    15408.
    JOHNSTON v. WILSON.
    In a suit to recover the value of a dog alleged to have been unlawfully . killed by the defendant while it was killing his chickens, it was error for the court to instruct the jury, in effect, that the defendant did not have the right to kill the dog if it was worth more than the chickens. In such a case the relative value of the dog and the chickens is but a circumstance to be considered by the jury in deciding the issue of whether or not the killing was justifiable under the circumstances.
    Decided May 14, 1924.
    Action for damages; from Oconee superior court — Judge Fort-son. February 16, 1924.
    J. A. Wilson brought suit against E. P. Johnston to recover $150, the alleged value of a bird-dog, which the petitioner alleged was shot and killed by the defendant wilfully and without justification, at a time when the dog was doing neither the defendant nor his property any damage that would have authorized the killing of such a valuable animal. The defendant, answering, admitted the killing of the dog, but denied that he did so wilfully and without justification, and alleged that immediately before he shot the dog it had killed several of his chickens, and that at the time of the shooting it was attempting to kill other chickens belonging to him. He pleaded also, by way of set-off, that this dog had from time to time killed forty-eight of his chickens, alleged to be worth $1 each; and he prayed for a judgment against the plaintiff for the sum of $48. Upon the trial of the case the plaintiff testified, among other things, that he was the owner of a number of dogs which he kept at his home, usually in an inclosure in the back-yard, but that on Sunday morning, (the day the dog was killed) one of his dogs, a Llewellyn setter, given to him by Ty Cobb and worth $150, followed his wife to the sehoolhouse, and in returning home it went across the defendant’s yard and was shot and killed by the latter. The defendant testified that on one occasion, prior to the time he killed the dog, he “went out to feed the chicks, . . and found several killed, seven in all, some of them badly mutilated;” that on another occasion “we found chicks scattered all over the yard, fresh killed and some of them warm. We gathered them up, thirty-eight of them. We found tracks of the dog this time further out in the yard, where the ground was soft;” and that on the date he killed the dog he “got the gun and stepped out in the back-yard, to where I could see the dog, and there was a mangled chicken between his feet, and when he jumped and got another one I shot him.” He further testified: “These chickens of mine that were killed were white leghorns, and would have cost me one dollar each to have bought them in the open market that size.”
    The jury returned a verdict in favor of the plaintiff for $2. The defendant made a motion for a new trial, which was overruled, and he excepted.

      W. K. Meadow, for plaintiff in error.

      F. A. Gillen, John B. Gamble, contra.
   Broyles, C. J.

(After stating the foregoing facts.) The general grounds of the motion for a new' trial are expressly abandoned; and the four special grounds of the motion raise but a single question,- to wit, did the court err in charging the jury as follows: “But the defendant would not have had the right to kill the dog even though caught in the act of killing chickens, if the value of the dog was greater than the probable damage he would have inflicted then or in the future. In other words, a man has the right to protect his property from the depredations of vicious' animals, and, if necessary, to kill the animal, if the value of the property he protects is greater than the value of the dog.” Plaintiff in error insists that this charge was error for the following reasons: “(a) It was contrary to the principle of law of force in this State that a man has the right to protect his property, and especially his domestic fowls and animals which are incapable of protecting themselves, from the depredations of dogs, and if necessary, to kill the dog, even though the value of the fowls he so protects is not greater than the value of the dog. (&) Said charge was error for the reason that it was an incorrect statement of the law applicable to the main issue in the case, and peculiarly prejudicial to movant in this case, for the reason that it placed upon him the burden of showing that the value of his fowls which he sought to protect was in excess of the value of the dog which he killed in attempting to protect them, a greater burden than the law of this State requires him to cany, (c) It was contrary to the rule of law of force in this State that one may lawfully and without liability kill a dog which is in the act of killing one’s chickens. (d) Said charge was especially harmful to movant for the reason that there was evidence submitted to the jury which would have authorized said jury to have fouhd that the value of the chickens which movant sought to protect was not greater than the value of the dog.”

Generally speaking, whenever and wherever the dog has been the subject-matter of litigation, counsel and court have been prone to eulogize at length this familiar animal. And, since both this court and the Supreme Court have already followed this time-honored course (see Vaughn v. Nelson, 5 Ga. App. 105, 62 S. E. 708, and Strong v. Ga. Ry. & Elec. Co., 118 Ga. 515, 45 S. E. 366), we will refrain from any dissertation upon or elaboration of the many splendid qualities of this humble but faithful friend of mankind. However, it does not seem amiss to state, in passing, that the cackling hen and the crowing rooster are far more important to the public weal than is the more conspicuously portrayed canine; for, without these valuable fowls, the great American public would not only be deprived of its favorite breakfast of eggs, but the majority of our people in the rural districts, towns, and cities would be deprived of one of their chief means of combating the high cost of living, and of making their small salaries and small business enterprises carry them and their families through the year. Indeed, since King Cotton, due to the ravages of the boll-weevil, has been dethroned in favor of Queen Diversification, the heretofore lowly hen has come into her own, and, together with the cow and the hog, is rapidly blazing the trail towards a far more prosperous era for the long-suffering farmer of the Southland.

The exception to the charge in the instant case presents, for the first time in this State, the question whether or not a man has the legal right to kill a dog that is attacking his chickens when the relative value of the dog is .greater than that of the chickens. There is no statute in Georgia changing the common-law rule that the owner of a domestic animal or fowl which is placed in jeopardy by the attack of a dog has the right to kill the dog for the protection of his property. One of the earliest English cases applying this principle is that of Wadhurst v. Damme, Cro. Jac. 45 (79 Eng. Reprint, 37), decided by the court of King’s Bench more than three hundred years ago, where it was held that the keeper of a warren might, without liability^, kill a dog that attacked the conies in the warren. That this is the law of this State is recognized in the case of Miller v. State, 5 Ga. App. 463, 464 (63 S. E. 571). For other decisions adhering to this principle see: Thompson v. State, 67 Ala. 106 (42 Am. Rep. 101); Minor v. Coleman, 16 Ala. App. 5 (74 So. 841); Johnson v. McConnell, 80 Cal. 545 (22 Pac. 219); Ford v. Glennon, 74 Conn. 6 (49 Atl. 189); State v. Churchill, 15 Idaho, 645 (19 L. R. A. (N. S.) 835, 98 Pac. 853, 16 Ann. Cas. 947); Brent v. Kimball, 60 Ill. 211 (14 Am. Rep. 35); Dinwiddie v. State, 103 Ind. 101 (2 N E. 290); Marshall v. Blackshire, 44 Iowa, 475; Farney v. Vanarsdall, 139 Ky. 247 (129 S. W. 589); Livermore v. Batchelder, 141 Mass. 179 (5 N. E. 275); Chapman v. Decrow, 93 Me. 378 (74 Am. St. Rep. 357); Bowers v. Horen, 93 Mich. 420 (17 L. R. A. 773); Lale v. Laughlin (Mo. App.), 203 S. W. 244; Brown v. Graham, 80 Neb. 281 (114 N. W. 153); Moebius v. Williams, 84 N. J. L. 540 (87 Atl. 73); Gibbons v. VanAlstyne, 56 Hun. 639 (29 N. Y. S. R. 461); Parrott v. Hartsfield, 20 N. C. 242 (32 Am. Dec. 673); Job v. Harlan, 13 Ohio St. 485; Finnerty v. Lamareaux, 10 Kulp. 576; Harris v. Eaton, 20 R. I. 81 (37 Atl. 308); Brookerson v. State, 49 Tex. Crim. Rep. 421; Miller v. Spaulding, 41 Wis. 221.

It is true that in the Georgia case of Miller v. State, supra, Judge Powell, who delivered the opinion for the court, said, by way of obiter dictum, that, “Whether the killing of a dog is justifiable or not, as related to a civil case, seems to depend upon whether the killing was done, not necessarily while some act of depredation was in progress, but under such circumstances as that the killing was a fair act of prudence on the part of the person doing the killing, reasonable regard being had to the value of the dog, the value, of the property menaced, and the probability of present or future depredations.” This is but another way of stating that the relative value of the dog and of the animal threatened is a circumstance to be considered by the jury in passing upon the question as to whether or not the killing was justifiable under the circumstances. As far as we have been able to find, this is as far as any court has ever gone in dealing with the relative value of the animal attacking and the animal attacked; and the charge in the instant case to which exception is taken is not at all in accord therewith, but, on the contrary, states affirmatively that the defendant did not have the right to kill the dog if it was worth more than the menaced chickens. In the case of Ex Parte Minor, 203 Ala. 481 (83 So. 475), it was held: -“The relative values of the dog that was killed and the guinea fowls to be protected by his killing have been held to be ‘a proper circumstance for the jury to consider in arriving at a conclusion whether the defense was a reasonable one under the circumstances.'’ Kershaw v. McKown, 196 Ala. 123 (72 So. 47). But there is no rule of law that the defense against liability for killing the dog must have been 'based upon a showing that the fowls thus protected were in value equal to or not greatly less than the value of the dog. Ibid. That question is comprehended in the issue of reasonable necessity for the killing, and need not be alleged in the plea.” So, also, in Anderson v. Smith, 7 Ill. App. 354, it was said: “In case of defense of domestic animals from the attacks of other animals, the relative value of the animals may be a proper circumstance for the jury to consider in arriving at a conclusion whether the defense was a reasonable one under the circumstances.” Likewise, in Coleman v. Minor, 16 Ala. App. 5 (82 So. 42), it was said: “As to whether the necessity to kill in the particular case exists, and whether or not excessive force was used, are questions of fact, in the determination of which the nature of the attack, from what the danger proceeds, the character of the property in peril, the relative importance of the harm threatened (involving a consideration of the relative value of the property), and that which is done in defense, are 'circumstances that should be submitted to and considered by the jury.” And in Kershaw v. McKown, 196 Ala. 123, it was held that the court properly refused to charge that, “if the goat which was being attacked was of less value than that of the dog killed, or if the value of the two was not greatly disproportionate, the verdict should be for the plaintiff for the value of the dog killed, and that, if defendant could have driven the dogs away and thus saved the goats from harm or death, then he had no right to kill- the dog.” The same view was taken in Nesbett v. Wilbur, 177 Mass. 200 (58 N. E. 586). In that case, which was an action to recover damages for the alleged unlawful killing of tbe plaintiff’s dog while it was engaged in killing the defendant’s hens on his premises, the court said: “No doubt such a justification as that relied on depends upon a number of variable facts: the imminence and nature of the danger, the kind of property in peril, from whom or what the danger proceeds, the relative importance of the harm threatened and that which is:done in defense.”

Other decisions hold that'the relative value of the animals involved is not to be considered at all. For instance, in Sabin v. Smith, 26 Cal. App. 676 (147 Pac. 1180), it was held: “The claim that the dog killed was possessed of a pedigree and had a greater relative value than the fowls injured, and that therefore the killing was unwarranted, is without merit. The right to kill a dog found trespassing is not affected by the relative value of the dog and the property being injured.” The same rule was laid down in the recent case of Collinson v. Wier, 154 N. Y. Supp. 951, wherein the court said: “The right to kill a dog found' trespassing and endangering property is not affected by the relative value of the dog and the property being injured.” And in Simmonds v. Holmes, 61 Conn. 1 (15 L. R. A. 253), the same principle was asserted, although the facts in that case showed that the property sought to be protected was inanimate.

The act of the General Assembly of 1912 (Ga. L. 1912, p. 46), expressly making dogs personal property and subject to taxation, does not change the common-law rule with reference to depredations committed by dogs.

It follows from what has been said that the court -erred in charg-" ing the jurjr that “the defendant would not have had the right to kill the dog even though caught in the act of killing chickens, if the value of the dog was greater than the probable damage he would have inflicted then or in the future. In other words, a man has the right to protect his property from the depredations of vicious animals, and if necessary, to kill the animal, if the value of the property he protects is greater than the value of the dog.” (Italics ours.) If this were the correct rule, a keeper of poultry might lose his entire flock of chickens while endeavoring to ascertain whether the attacking dog was worth more than the chickens, and thus be deprived of the right, which the law has given him from the earliest times, to defend his property against the unlawf ul acts of man or beast.

Judgment reversed.

Lulce and Bloodworth, JJ., concur.


author: Beoyles, C. J.

text:
    15409.
    Johnson v. The State.
    Decided May 14, 1924.
    Conviction of assault with intent to rob; from Ware superior court — Judge Summerall. February 7, 1924.
    Application for certiorari was denied by the Supreme Court.
    I. J. Bussell, for plaintiff in error.

      A. B. Spence, solicitor-general, contra.
   Beoyles, C. J.

The verdict was demanded by the evidence, and neither of the special grounds of the motion for a new trial shows cause for a reversal of the judgment overruling the motion.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


text:
    15412.
    Wacaser v. The State.
    Decided May 14, 1924.
    Accusation of drunkenness on highway; from city court of Miller county — Judge Geer. January 26, 1924.

      Jesse A. Drake, P. Z. Geer, for plaintiff in error.

      P. D. Rich, solicitor, contra.
   Beoyles, C. J.

The motion for a new trial contained only the usual general grounds; the verdict was authorized by the evidence, and the overruling of the motion for a new trial was not error.

Judgment affirmed.

Lulce and Bloodworth, JJ., eoneur.


text:
    15413.
    Wacaser v. The State.
    Decided May 14, 1924.
   Beoyles, C. J.

The motion for a new trial contained only the usual-general grounds; the verdict was authorized by the evidence, and the overruling of the motion for a new trial was not error.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.

Accusation of disturbing congregation; from city court of Miller county — Judge Geer. January 26, 1924.

J. A. Brahe, P. Z. Beer, for plaintiff in error.

P. B. Rich, solicitor, contra.


text:
    15419.
    Plummer v. The State.
    Decided May 14, 1924.
    Accusation of violating liquor law; from city court of Dublin— Judge Sturgis. January 26, 1924.

      T. E. Hightower, for plaintiff in error.

      William Brunson, solicitor, contra.
   Broyles, C. J.

1. Under repeated rulings of the Supreme Court and of this court a special ground of a motion for a new trial must be complete within itself, and will not be considered when a reference to the brief of the evidence or other portions of the record is necessary to enable the reviewing court to determine whether error has been committed.

(a) Under this ruling the following ground of the motion for a new trial is too defective to be considered: “Because the court erred in failing to charge to the jury the law relating to circumstantial evidence.” It should have been alleged in the ground that the conviction of the defendant depended wholly upon circumstantial evidence.

2. Complaint is made in another ground of the motion for a new trial that the judge “assumed to the jury that there was a still,” when he instructed them in his charge that, “if you are satisfied to á moral and reasonable certainty, and beyond a reasonable doubt, there was whisky at this still, . . it would be your duty to convict.” The fact “that there was a still” was shown by the undisputed evidence, and was not an issue of fact in the case. It follows that this charge does not require another hearing of the case.

3. There was evidence authorizing the verdict, and, the finding of the jury having been approved by the trial judge, this court is without authority to interfere.

•Judgment affirmed.

LuJce and Bloodworth, JJ., concur.


text:
    15424.
    Brown v. The State.
   Broyles, C. J.

1. The exclusion of certain love letters that the female alleged to have been seduced by the defendant wrote to á third person after the alleged seduction was not error. See, in this connection, Keller v. State, 102 Ga. 506 (7) (31 S. E. 92); Davis v. State, 31 Ga. App. 523 (3) (121 S. E. 136).

Decided May 14, 1924.

Indictment for seduction; from Gwinnett superior court — Judge Russell. January 26, 1924.

I. L. Oakes, 0. A. Nix, for plaintiff in error.

Pemberton Cooley, solicitor-general, Kelley & Kelley, contra.

2. The verdict was authorized by the evidence and the overruling of the motion for a new trial was not error.

Judgment affirmed.

Luke cmd Bloodworth, JJ., concur.


text:
    15427.
    Crowley v. The State.
    Decided May 14, 1924.
    Indictment for larceny of automobile; from Cook superior court —Judge Dickerson. February 21, 1924.

      II. B. Edwards, Hendricks & Hendricks, for plaintiff in error.

      J. D. Lovett, solicitor-general, contra.
   Broyles, C. J.

The v.enue of the crime was sufficiently proved; the evidence authorized the verdict; and none of the special grounds of the motion for a new trial requires another hearing of the case.

Judgment affirmed,.

Luke and Bloodworth, JJ., eoncur.


text:
    15433.
    STRICKLAND v. COLEMAN, adm’r.
    Where the surety on a note was informed by the payee and holder that it had been settled in a trade between himself and the maker, discharge of the surety resulted; and especially does such conduct discharge the surety where the maker was solvent when such information was given the surety, but insolvent at the time of the trial of the suit upon the note.
    Decided May 14, 1924.
    Complaint; from city court of Reidsville — Judge Cowart.. January 18, 1924.

      II. II. Elders, J. Saxton Daniel, for plaintiff in error.

      E. C. Collins, R. W. Barnes, contra.
   Broyles, C. J.

W. A. Coleman, administrator of the estate of Eli Coleman, sued W. S. Sikes, as maker, and Dr. L. V. Strickland, as surety, upon a promissory note payable to W. A. Coleman, administrator of the estate of Eli Coleman. The maker filed no defense. The surety answered, admitting the execution of the note, but denied liability, and pleaded that he had been discharged because of certain acts on the part of the creditor which increased the risk incurred by his contract of suretyship. IJpon the trial of the ease the plaintiff introduced in evidence the note sued upon, together with a copy of a notice to collect attorney’s fees, and then rested. The evidence adduced in behalf of the defendant showed: that he gave W. A. Coleman, the payee named in the note, written notice to proceed to collect the debt out of Sikes, the principal; that about the time the note became due Coleman went to see Sikes and told Sikes that he had a written notice from Strickland, the surety, to sue upon the note, and wanted to know what to do about it, and Sikes proposed to sell to Coleman a mule for $235, but later agreed to take $225 for the mule and let Coleman take out of this sum the amount of the note and pay the difference in money; that when the principal and the payee of the note were closing the trade, Strickland, the surety, approached them and Coleman said to him: “Me and Stout [Sikes] have traded on a mule and settled this note that you are indorser on;” that at the time of this conversation Sikes was in possession of and the owner of the mule in question, and that the agreed value of $225 was an amount more than enough to pay the 'note, and that at the time of the trial Sikes was insolvent. The defendant testified, among other things: “My reason for not doing anything further towards having Coleman press the principal on the note was because I thought it was settled. I thought the trade was made. I understood, after the conversation, that my connection with it [the note] had ended.”

In our opinion the above facts, which were uncontradicted, demanded a finding that the defendant’s risk, incurred by the contract of suretyship, was increased, and, under the provisions of section 3544 of the Civil Code (1910), “any act of the creditor, either before or after judgment against the principal, which injures the surety or increases his risk, or exposes him to greater liability, will discharge him.” The conduct of Coleman, the payee, in notifying Strickland, the surety, that he and Sikes, the principal, had “traded on a mule and settled this note that you are endorser on,” was sufficient to work a discharge of Strickland under the statute. In Whitaker v. Kirby, 54 Ga. 278, 280, Judge McCay said: “This court, in Toomer v. Dickerson, 37 Georgia, 428, held that the failure of the mortgagee to put upon record a mortgage given to secure the debt by the principal, discharged the security, though it did not affirmatively appear that the security was injured; under such failure he was liable to have been injured, his risk was increased. This is a much stronger case. Here the security was allowed . . to rest under the belief, produced by the plaintiff’s own declaration, that the note was paid off. Under the law, the security had a right to notify the plaintiff to sue, and on failure to sue in six months, this would discharge .him. He had, besides, a right at any time to pay the debt and himself collect the money. He had a right to get additional security for his own protection. Who shall say what he would have done if he had known the truth? Anri all of these rights he has, in effect, been deprived of, by the information given him by the plaintiff. He had no call to use any of these rights, because the plaintiff had told him the note was paid. It is no reply to this to say that if the principal is still solvent the security is not hurt. It does not appear that the principal is solvent. . . This act of the plaintiff was, in our judgment, a serious wrong, cinjury’ to the defendant. He thus lulled him to sleep; in fact, deprived him of several ways by which he might have secured himself.” See, also, Bullard v. Ledbetter, 59 Ga. 109; High v. Cox, 55 Ga. 663; Matthews v. Everett, 84 Ga. 476 (10 S. E. 1088); and Scarratt v. Cook Brewing Co., 117 Ga. 181, 187 (43 S. E. 413).

It follows from what has been said that the verdict in favor of the plaintiff was contrary to law and the evidence, and therefore that the court erred in overruling the defendant’s motion for a new trial.

Judgment reversed.

Luke and Bloodwortli, JJ., concur.


author: Broyles, O. J.

text:
    15467.
    Fuqua v. The State.
    Decided May 14, 1924.
    Conviction of assault and battery; from Bibb superior court— Judge Malcolm D. Jones. February 23, 1924.

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

      Charles II. Garrett, solicitor-general, contra.
   Broyles, O. J.

The verdict was authorized by the evidence and the special grounds of the motion for a new trial are without substantial merit., Judgment affirmed.

Luke and Bloodwortli, JJ., concur.


author: Luke, J. Bloodworth, J.,

text:
    15429.
    Warren v. The State.
    Decided May 14, 1924.
    Indictment for assault with intent to murder, etc.; from Thomas superior court — Judge W. E. Thomas. February 5, 1924.

      B. Boy Hay, James B. Burch, for plaintiff in error.

      G. E. Hay, solicitor-general, Eva L. Hay, contra.
   Luke, J.

1. “While a defendant cannot, as a general rule, be- charged with separate and distinct offenses in the same indictment, yet it is well settled that offenses of the same nature and differing only in degree may be joined in one count in the same indictment; and it is as clearly settled that offenses, though not of the same nature, if they constitute hub one transaction, may also he joined in one count in the same indictment.” (Italics ours.) Mitchell v. State, 6 Ga. App. 554 (65 S. E. 326). See also Lawrence v. State, 10 Ga. App. 786 (1), 788 (74 S. E. 300), and citations. Under this ruling, the indictment in the instant case was not subject to demurrer on the ground that it charged the defendant with the commission of two separate offenses in the same count, to wit, robbery by force and intimidation and assault with intent to murder, since it appears from the indictment that the offenses were committed on the same person and on the same occasion, and constituted but one single transaction.

2. The defendant was charged with assault with intent to murder and with robbery, and the jury returned a verdict of “guilty as charged.” There was no evidence authorizing his conviction of robbery. The verdict, therefore, was contrary to law and the evidence, and the court erred in refusing to grant a new trial. See, in this connection, Jones v. State, 27 Ga. App. 600 (110 S. E. 37); Brooks v. State, 27 Ga. App. 629 (109 S. E. 548), and eases cited on page 630.

3. The special grounds of the motion for a new trial are not passed upon.

Judgment reversed.

Broyles, O. J., concurs. Bloodworth, J., concurs specially.

Bloodworth, J.,

concurring specially. Were this a case of first impression I would not agree to the ruling made in the first paragraph of the decision. In my opinion it is too broad. I thiulr that there are offenses so separate and distinct from each other that they cannot be joined in the same count even though they constitute but one transaction. But inasmuch as the decision reiterates a former decision of this court, by which I am bound, and which as applied to the facts of this case may not be erroneous, I concur in the judgment.


author: Bboyi.es, C. J. Bloodworti-i, J.,

text:
    15454.
    BALKMAN v. THE STATE.
    Decided May 15, 1924.
    Indictment for murder — conviction of assault with intent to murder; from Bibb superior court — Judge Mathews. February 2, 1924.

      John B. Cooper, W. 0. Cooper Jr., W. I. Geer, for plaintiff in error.

      Charles H. Garrett, solicitor-general, contra.
   Bboyi.es, C. J.

1. The court’s charge upon the subject of good character was not error for any reason assigned, Hill v. State, 18 Ga. App. 259 (1 b) (89 S. E. 351).

2. The defendant was convicted of an assault with intent to murder. The case was a very close one, and under all the particular facts it was prejudicial error for the court, in charging the jury, as set forth in the 2d special ground of the motion for a new trial, to fail, in that connection, to instruct them specifically that they should return a verdict of not guilty if, under all the facts and circumstances of the case, they had a reasonable doubt as to the guilt of the defendant.

3. The other alleged errors in the charge of the court as complained of in special grounds 3 and 4 of the motion for a new trial are not likely to recur upon another hearing of the case.

4. The error in the charge referred to above in paragraph 2 requires a new trial, and it was error to overrule the motion for a new trial.

Judgment reversed.

Luhe, J., concurs. Bloodworih, J., dissents.

Bloodworti-i, J.,

dissenting. The excerpt from the charge of the court upon which the majority opinion is based closes with these words: “If you have any reasonable doubt about the guilt of the defendant, you will give him the benefit of the doubt. If, in considering his defense, you believe that he acted under the fears of a reasonable man and under what seemed to him a present necessity to shoot, if he did shoot, or if you have any reasonable doubt on that subject, give him the benefit of the doubt.” I cannot agree with my associates that the judgment in this case should be reversed on the ground that the judge failed to add at the end of this excerpt the words “and find him not guilty.” The court fully and clearly instructed the jury upon reasonable doubt, and, both before and after the portion of the charge under discussion, told them that if the evidence did not show beyond a reasonable doubt the guilt of the accused, it would be their duty to acquit him. I think that where a charge has in it a clear enunciation of the rule that if the jury has any reasonable doubt of the guilt of the defendant it would be their duty to acquit him, it is not necessary, each time they are instructed “if you have any reasonable doubt as to his guilt, you should give him the benefit of the-doubt,” to add thereto the words, “and acquit him.” When the whole charge in this case is considered, I do not think the jury could have reached any other conclusion, upon being told to give the defendant the benefit of the doubt, than that this meant that if they did this, a verdict of not guilty would necessarily follow. I do not think that the judge is required to repeat these words any more than he is to repeat instructions on reasonable doubt. See Harris v. State, 1 Ga. App. 136 (4) (57 S. E. 937); Watts v. State, 9 Ga. App. 500 (2) (71 S. E. 766); Nance v. State, 126 Ga. 95 (2) (54 S. E. 932).