text:
    990.
    991.
    ROSE v. THE STATE. R. M. ROSE COMPANY v. THE STATE.
    1. Section 428 of the Penal Code, which prohibits the soliciting or taking of orders for the sale of intoxicating liquors in counties where such sales are by law prohibited, is a police regulation, necessary for the effective enforcement of the State’s prohibitory regulations. The act forbidding soliciting orders for intoxicating liquors is not affected by the extension of the scope of its operations, caused by. the passage of the general prohibition act.
    2. By the terms of §428 of tlxe Penal Code, the solicitation or taking of orders for the sale of intoxicating liquors is forbidden, whether the solicitation is by the seller personally, or only by an agent of the seller. To solicit the sale of intoxicating liquors by letter or circular is a crime, if the letter is intended to be delivered, and is in fact delivered as intended, in any county in this State.

      (a) The term “solicit personally” includes any act done by the seller himself which may tend to effect a sale, as contrasted with any like act “by an agent” of the seller, tending to a similar result.
    (b) Whether a solicitation is personal or by an agent is not dependent upon the personal presence of the solicitor, but upon whether the means of solicitation, whether oral or in writing, are used by an agent or by the principal himself. The solicitation of orders by mail for the sale of intoxicating liquors is personal solicitation, if the seller himself in person writes or mails the letter received by the prospective buyer.
    (c) The venue of a crime committed by mail is at the point where the matter transmitted by mail is delivered and takes effect. Where a sale of intoxicating liquors is solicited by a communication, written or printed, and mailed in one State, as no crime is committed until the delivery of the letter in the State where such solicitation is forbidden, the courts of the county where the letter is recived by the addressee of such letter and its contents are ascertained have jurisdiction of such offense.
    3. The State may punish for a crime committed through the mails as a medium, without in any sense impinging the undoubted right of the national government to control the mails. Freedom to use the mails does not extend to their use as a means of committing crime.
    4. “The general power of the States to control and regulate, within their borders, the business of dealing in, or soliciting ordex-s for, the purchase of intoxicating liquors is beyond question.” DeLamater v. South Dakota, 205 U. S. 93.

      5. Under the provisions of the Wilson act, a statute which (in aid. of a police regulation prohibiting the sale of intoxicating liquors within se State or any portion thereof) prohibits the solicitation of orders is not, for the reason that such statute conflicts with the power of Congress to regulate and control interstate commerce, void as to orders solicited in said State, although the seller and the liquor to be sold may both be in another State; because such regulation in no wise encroaches upon the power of Congress to control interstate commerce. The exercise of such State regulation, so far from being in conflict with the power of Congress to regulate interstate commerce, is expressly allowed by law'. 26 Stat. 313, c. 728.
    6. A corporation may be indicted and punished for any violation of law, by its servants and agents in the conduct of its business, which it commands or ratifies. That the servant may also be punished does not relieve the corporation.
    Indictments for misdemeanor, from Bartow superior court— Judge Fite. January 30, 1908.
    Argued March 10,
    Decided July 31, 1908.

      Anderson, Felder, Rountree & Wilson and Rosser & Brandon, for plaintiffs in error.

      Samuel P. Maddox, solicitor-general, contra.
   Russell, J.

The plaintiffs in error were accused in two presentments, which are practically identical. Demurrers were filed in both cases, and the plaintiffs in error except to the judgment of the superior court overruling their demurrers. As the same points-are presented in both bills of exceptions, they will be considered together.

The defendants in the court below were accused of the violation of §428 of the Penal Code, which forbids the solicitation or taking-of orders for intoxicating liquors in any county in this State where-tile sale of such liquors is prohibited by law, high license or otherwise. Each presentment contains two counts, charging the offense of misdemeanor. We quote so much of each count as is material. In the first count it is alleged, that the defendants, in Bartow county, unlawfully did “solicit personally and by agent the sale of spirituous, malt, and intoxicating liquors in said county of Bartow', where the sale of said liquors is prohibited by law', high license and otherwise, . . and soliciting being made by and through the United States mail, by mailing letters to citizens of Bartow county from the city of Chattanooga, Tennessee, containing self-addressed envelopes, order blanks, and other printed and written matter soliciting the sale of said liquors, said letters having been mailed and delivered to W. A. Cleveland and I. W. Alley in Bartow county, and other citizens of Bartow county w'hose names, to the grand jurors are unknown.” In the. second count of the-presentment it is alleged that the defendants were guilty of the-offense of misdemeanor, for the reason that they did “solicit personally and by agent the sale of spirituous, malt, and intoxicating liquors in said county of Bartow, where the sale of said liquors is. prohibited by law, high license and otherwise, . . said soliciting being made by and through the United States mail, by mailing letters to citizens of Bartow county from the city of Chattanooga, Tennessee, cpntaining self-addressed envelopes, order blanks, and ■other printed and written matter soliciting the sale of said liquors, said letters having been mailed to W. A. Cleveland and I. W. Alley in Bartow county, . . said liquors then and there being in Chattanooga, in the State of Tennessee, and to be shipped to said Cleveland and Alley from Chattanooga, where the said Randolph Bose and B. M. Bose Company, at the time of said soliciting, had a place of business where they were engaged in selling said liquors.”

The defendants demurred to the presentments, upon the following grounds: (1) That the indictment set forth no offense under the laws of Georgia; that it is not a crime under the laws of the State of Georgia to solicit the sale of intoxicating liquors not personally or by agent, but through the United States mail from a point without to a point within the State. (2) That the indictment shows on its face that the defendants are prosecuting a legal business, are not violating any penal law of the State of Georgia, have done no act in the county of Bartow, State of Georgia, either personally or by agent,, but that they only mailed certain documents, therein mentioned, in the State of Tennessee; which is not a crime under the laws of the State of Georgia. (3) That the indictment shows upon its face that the defendants are engaged in an interstate business not prohibited by the constitution or laws of the United States, and not subject to be interfered with by the laws of Georgia. (4) That the indictment shows upon its face that the defendants are using the United States mails for legal ends and the conduct of a legal business, and it is incidental to .interstate commerce. (5) That the indictment shows upon its face that the defendants are not guilty of any crime or penal offense, in that soliciting, through the United States mail, orders for the sale of liquors in Bartow county, Georgia, to be shipped from Chattanooga, in the State of Tennessee, is a lawful use of the United States mails, and is incidental to interstate commerce, namely, the sale and shipment from the State of Tennessee into the State of Georgia. (6) That if the laws of Georgia undertake to make criminal the solicitation of the sale 'of liquors by mailing letters from without the State to persons within the Stare, such liquors to be sold and shipped from without the State to persons within the State ordering the same, such laws are void, as •contravening section 8, subdivision 3, article 1 of the constitution •of the United States. The foregoing statement embraces the substance of the points presented in the demurrers of both defendants alike. The E. M. Eose Company also demurred upon the ground that, being an artificial person, it is not subject to indictment nor punishable for the criminal offense set out in this indictment.

Other than the one last stated (and which will be last considered) the demurrers raise three main points: (1) That the solicitation of orders for whisky by mail is not forbidden by the terms of §428 of the Penal Code, for the reason that to solicit by mail can not be to solicit “personally” and is not included in that term.

(2) That even if such solicitation be a violation of the law when the point from which the letter is sent and the point where the letter is received are both within the same State, yet the statute is without effect where the letter is sent from another State, because to give the law effect would be to interfere with interstate commerce and an incident to interstate commerce, as well as to interfere with the power of Congress to control the postal service.

(3) That if it be held that the solicitation of sales of liquor by mail from without the State to a person within the State comes within the provision of §428 of the Penal Code when the liquor to be sold is to be shipped from without the State to persons within the State, then §428 of the Penal Codeáis void, as contravening the power of Congress to regulate -commerce among the several States.

The questions raised by this record present issues of the highest importance to the people of this State, as well as of the gravest legal import. It is clear, upon the one hand, that the intention of the General Assembly, in the passage of the general prohibition .act of 1907 (Acts of 1907, p. 93), will be largely frustrated and brought to naught if it be held that liquor dealers have only to establish themselves beyond the borders of this State and carry on a mail-order business, in which their stock of goods is without the State, instead of within its borders. Upon the other hand, if the sale of intoxicating liquors comes within tire same category as other objects of interstate commerce, or if it is so 'held by the Federal courts, no State can prevent this.

The sale of liquor is a legitimate business, where it has not been placed under statutory ban; and it is not within the purview of our duties, nor our purpose at this time, to discuss the moral aspect of either the sale or use of intoxicating liquors. W.e shall deal only with the legal aspect of the case, that is, with that legal restriction or prohibition which is in the nature of police regulation. We recognize also that, the sale of liquor being a legitimate object of interstate commerce, no State statute can stand which encroaches in any degree upon the prerogative of Congress to regulate commerce between the States. We recognize that the constitution of the United States, and laws of the United States in pursuance thereof, are the supreme laws of this State; and so far as the writer is concerned, he feels no little pride, as a Georgian, in the fact that the framers of our constitution took the pains to embody in the organic law of this State a clear declaration of Georgia’s paramount allegiance to the Federal constitution and laws.

The growth of the conviction that total prohibition was the best regulation of intoxicating liquor was gradual in this State. Prior to the passage of the local-option act, numerous counties had, by local laws, some directly, and others by high license, prohibitory in amount, abolished the. sale of intoxicating liquors within their borders. By the passage of the act which prohibited the manufacture, sale, barter’, giving away to induce trade, etc., of any alcoholic, malt, spirituous or intoxicating liquors, approved August 6, 1907, the legislature of Georgia intended, as a matter of police regulation, to prohibit the sale of all intoxicants in this State. Every device by which the unlawful use of liquors in this State could be supplied, which was suggested to legislative ingenuity, is guarded against in the act last above referred to. It can not be conceived that fhe legislative contemplation extended only to the prevention of sales, for, if so, this would have worked merely to deprive the public treasury.of a large income, devoted to the cause of public instruction. Whether wisely or not, the legislature must have determined, either upon the ground of public health, public peace, or the public morality, or having all of them in view, that it was best, as a matter of internal police regulation of the State, that intoxicating liquors should be placed under the ban of the law. It is not to be denied that the law is sweeping and drastic. This, however, only goes to make more manifest the intention of the lawmakers, and to accentuate our duty, as a court, to enforce this manifest intention. We have given to each question involved most serious consideration. No question can be more important than some of those involved in the present writ of error. The very right of the sovereign State to control its internal police regulations is called in question. If the contention of the plaintiffs in error is correct, then the State is powerless to prevent, by the enforcement of absolute prohibition, the evils it apprehends from the sale of intoxicants within its borders. It can prevent its own citizens from soliciting sales within its borders, but the arm of the State is powerless to prevent non-residents from a similar violation of its policy. It can prevent its own citizens from lighting the fires of crime by inducing those to buy who otherwise might not do so, but can not prevent citizens of Tennessee and Alabama from shooting arrows of fiTe, which may cause the same combustion. The State, according to this contention, may keep down fire set out by its own citizens, but can not protect our homes in Georgia from being set on fire by showers of lighted arrows shot from Florida and Tennessee.

Keeping in mind the provisions of the Wilson act and various decisions of the Supreme Court of the 'United States, construing it, it is our deliberate opinion that §428 of the Penal Code of this State, which prohibits the soliciting or taking of orders for the sale of intoxicating liquors in counties where such sales are prohibited, is a salutary police regulation, necessary for the effective enforcement of the general prohibitory statute of 1907. It was considered necessary when in only a portion of the counties in the State prohibition had become effective by local option. If prohibition were effective in only one county (and particularly if it were a border county), it seems to us that a non-resident solicitor would be as much liable as a solicitor who was a resident of this State. In no view of the case, therefore, can the effect of §428 of the Penal Code be affected by reason of the fact that the practical effect of the passage of the prohibition law of 1907 has been to extend the scope of the territory within which §428 becomes operative.

The initial question to be considered in the determination of this case is whether §428 of the Penal Code forbids the solieitation of orders for whisky or other intoxicating liquors by mail in any case; that is to say, whether it would be a violation for A. B., living and doing business in Atlanta, Georgia, to solicit by letter, mailed in Atlanta, Georgia, an order for whisky from C. D., living in Elberton, Georgia. We must necessarily consider this phase of the question first, because, if the solicitation for the sale of intoxicants, by mail, through a letter which is delivered in a county where by law the sale of said intoxicants is prohibited, be no offense, where the solicitation by mail begins and ends within the jurisdiction of this State, then it would be unnecessary to consider the questions raised and argued at length as to whether the defendants could be. convicted because their letters were written and mailed in the State of Tennessee. If it is not a violation of the law to solicit the purchase of intoxicating drinks by mail, when the solicitation is initiated and also concluded within the State, there can. in no event be an. unlawful solicitation, within the terms of §428, where the United States mail is used as the medium of communication between him who desires to sell and him who might be induced to buy intoxicating liquors within a county where the sale has been prohibited. Section 428 of the Penal Code, as amended by the act of 1897 (Acts of 1897, p. 39), is as follows: “If any person shall sell, contract to sell, take orders for, or solicit, personally or by agent, the sale of spirituous, malt, or intoxicating liquors in any county or town or municipal corporation or militia district or other place where the sale of such liquors is prohibited by law, high license or otherwise, he shall be guilty of a misdemeanor.” Section 428 was taken originally from the act of 1893 (Acts of 1893, p. 115), which act, in its first section, also contained what is now §429. We mention this fact because in the argument considerable stress is laid on the language of §429, as sustaining the argument that the original act applies only to solicitations made by one in person, and that for that reason the solicitation of sales, referred to, whether it be by the seller himself or b.y his agent, must be by personal visit to the locality where such sales are prohibited. The language of §429 is: “The foregoing section does not prevent the furnishing of such liquors to persons in such prohibition counties upon purchases made of licensed dealers in such liquors outside of, and not solicited or contracted for in, said prohibition counties. Nor does it prevent the soliciting of orders from licensed druggists and practicing physicians.” It will be found, upon examination of the original act of 1893, that §429 is merely a proviso to the provisions of the only enacting section of the original act, the dominant purpose of which was to make the law effectual in those counties where the will of the people had decreed that intoxicating liquors should no longer be sold.

In our opinion the use of the words “personally or by agent,” in the act of 1893, if not'entirely superfluous, can in no event be construed as restricting the meaning and effect of the word “solicit” to personal solicitations onty. It must he remembered, as a' notable historical fact, that originally many of the strongest prohibitionists were not skilled lawyers, and vice versa. The words “personalty or by agent” were, no doubt, inserted, not-with the wish of restricting the meaning of the word “solicit,” but in the attempt to broaden it. And when we consider that the intention of the act, to which we have already referred, was to make criminal the introduction of intoxicants from a county where the sale of such intoxicants was legal, into a county where the sale was prohibited, it is readily to be seen that while the solicitation which was made penal could be a personal solicitation, it was none the less made a crime for any person, either himself or by an agent, in any way to solicit the sale of intoxicating liquors where it was prohibited by law. The use of the word "personally” is more of a reference to the doctrine that in misdemeanors all who participate in any way in the commission of a criminal act are principals, than a reference to the means which might be employed to solicit sales. The legislature declared, in effect, in this section, what has always been the policy of this State with reference to the violation of its liquor laws (as to sales under license and -to minors) that the solicitor should be responsible for the act of his agent, at his peril, as well as that the agent should be criminally responsible for his own act. The clear meaning of the act of 1893, so far as soliciting is concerned, is that the person who sells intoxicating liquor or solicits its sale in a prohibition county shall be responsible, whether the act is committed by himself individually, or by any person who is his agent, it matters not what may be the means employed by either to effect the illegal solicitation. Our view is sustained and strengthened by the provisions of §429, which was originally a part of the same act and elucidates the true intention of the legislature; for the act proceeds to say that licensed dealers outside of prohibition counties, who have not solicited sales, may furnish intoxicating liquors to persons in prohibition counties, and yet, in this provision, there is no repetition of the words “personally or by agent.” There is here no limitation placed on the word “solicit,” as would have been if the word “solicit,” in the earlier portion of the act, had been intended to-be restricted to solicitations made in person. The lawmakers had already said, in section 1 of the act, that any solicitation, whether made by the seller or by an agent of his, was unlawful; and, having thus defined what it meant by the word “solicit,” the legislature proceeded to say, by proviso in the same section, that one who had not solicited could furnish liquors, even in prohibition counties, upon unsolicited purchases made of them. This permission, of course, granted nothing, and amounted to nothing (except that it may be used to illustrate the meaning placed by the General Assembly upon the word “solicit,” as qualified by the words “personally or by agent”), because it has never been made penal to-purchase intoxicating liquors, and the sellers referred to were licensed dealers in the counties of their places of business. It is further to be noted that the language “personally or by agent” is not repeated after the word “solicit,” in the provision of the act of 1893 relating to licensed druggists and practicing physicians. On. the contrary, the language used clearly disclosed that in using the words “personally or by agent,” in the portion of the act which is now §428, the legislature was referring only to the fact that the solicitation might be done either by a principal or his-agent, and not to the means which might be employed in order to solicit; for the language employed is: “the soliciting of orders-from licensed druggists and practicing physicians.” This is not interdicted by the act, no matter what means may be employed either by the principal or by the one employed as his agent to solicit sales in his behalf.

The learned counsel for plaintiffs in error insist that the word “personally” is the keynote, in determining what the act forbids, and quote various liquor laws from which it is absent, to support the statement that “it is a stranger to the State’s liquor laws.” They insist that if §428 had read “if any person shall sell or solicit tlie sale of spirituous liquors,” etc., the family resemblance to the rest of the State’s liquor laws would have been preserved. It is true, as stated by counsel, that the word “personally” is not to be found elsewhere in the liquor laws of the State; but there is not, for that reason, any force in the argument that the legislature intended only to forbid personal solicitation, unless it can be said that the word “personally” also qualifies the word “agent.” Even a mere superficial reading will disclose that this is not true. The agent, then, could solicit in any manner he saw fit; and even in this view, the most that could be said would be that the principal could not be found guilty, unless he in propria persona and by personal presence and solicitation in the prohibition county violated the law, and yet one who is his agent, as the word “agent” necessarily refers back to the word “solicit,” if he in any manner solicits a sale, would be guilty, though his principal would not. It is not to be presumed that any legislature intended to create such an anomaly as this.

We have already referred to the fact that acts are frequently presented and pressed to passage whose authors are not skilled in the use of such language as will convey most aptly the thought desired to be expressed, and yet the language of the section now under consideration is very similar to that of the statute forbidding the sale of liquor to minors, and was, no doubt, intended to express exactly the same thought, as the latter statute forbids “any person, by himself or another,” to sell or furnish intoxicating liquorá to minors (Penal Code, §44-1). The same thing is true of §445 of the Penal Code, which forbids any person, who keeps or carries on, “either by himself or by another,” a barroom, to employ a minor in the barroom. Other statutes of the State, upon other subjects, use the same language, — “any person who shall by himself or another.” This is nothing more than a warning to the entire citizenry of the State that principals and accessories are alike punishable. We have no difficulty, therefore, in holding that it was the intention of the legislature (in order to make the prohibition laws of those counties that might adopt them effective) to absolutely prohibit the encouragement of purchases of intoxicating liquors in counties which had prohibited the sale, by any kind or form of solicitation, except that licensed sellers might solicit orders from licensed druggists and practicing physicians. As the buying of liquor had not been made a crime (even if the sale were made in a prohibition county, and were unlawful), and as the legislature, no doubt, considered that it could not punish the purchaser, and therefore could not prevent purchases from being made, liquor dealers who had not solicited the order were given permission to furnish purchasers who had come.to them unsolicited, as a reward for their observance of the law. But the words “personally or by'agent,” so far from being restrictive, were, no doubt, inserted with the intention of being as absolutely inclusive of all kinds and methods of soliciting as the expression, “from the north to the south,” or “from the east to the west,” would be esteemed inclusive of all intermediate Joints.

The next question, then, is whether the legislature had the power to penalize a solicitation which originated, say, in Fulton county and was completed in ^Washington county, so as to make the offense punishable in the latter county. To put the exact question raised by this record, if the solicitation was made by mailing the letter in Fulton county, and the letter was received by due course of mail by the person to whom it was addressed, in Washington county, would the courts of Washington county have jurisdiction of the case? We think so. It has been held that if one standing in one jurisdiction fires a gun and kills another, who is in a different and distinct jurisdiction, the courts of that government, where the bullet took effect, alone have jurisdiction of the crime, if any was committed. A thief may be prosecuted in any jurisdiction into which the stolen goods are carried. He who sends poison by mail with the intent of accomplishing the death of another, if {he poison be taken and death results, is triable for the murder where the poison is administered. It it be a crime at all, then, to solicit sales of whisky, regardless of the method of soliciting, the -venue of the offense must be the point where the solicitation is communicated to the person sought to be solicited. If the agent (for, as we have said before, the word “personally” can not limit or qualify the word “agent” in the statute) communicated by telephone, the solicitation would only be complete when the message was heard by the probable purchaser; and therefore the crime would be complete at the location occupied by the person solicited during the conversation. It has been held, as to telegrams, that damages accruing from the failure to deliver a message, though recoverable at its destination, .are due only to the sender, who may have been hundreds of miles away. What is said in Loeb v. State, 115 Ga. 241 (41 S. E. 575), does not conflict with what we now rule. It is true that the court in that case held the offense under §428 of the Penal Code to be personal solicitation of orders for the sale of intoxicating liquors; and counsel for the plaintiffs in error rely strongly upon the language used. When, however, the real issues involved in that ease are taken into consideration, it clearly appears that what the Supreme Court said upon this subject was obiter. The point now before us was not before the court. If it had been, we doubt not that the same considerations which control our judgment would have addressed themselves with equal force to the judgment of the Supreme Court.

Unquestionably the State may punish for a crime committed through the mails as a medium, without in any sense impinging the undoubted right of the national government to control the mails. Freedom to use the mails does not extend to their use as a means of committing crime. In re Palliser, 136 U. S. 266 (34 L. ed. 514, 10 Sup. Ct. 1034), Justice Gray, delivering the opinion, after citing some cases in which it was held that the sender of a letter may be punishable at the place where he mailed it, says: “But it does not follow that he is not punishable at the place where the letter is received by the person to whom it is addressed; and it is settled by an overwhelming weight of authority that he may be tried and punished at that place, whether the unlawfulness of the communication through the post-office consists in its being a threatening letter (The King v. Girdwood, 1 Leach, 142, s. c. 2 East P. C. 1120; Esser’s case, 2 East P. C. 1125), or a libel (The King v. Johnson, 7 East, 65, s. c. 3 J. P. Smith, 94; The King v. Burdett, 4 B. & Ald. 95, 136, 150, 170, 184; Commonwealth v. Vlanding, 3 Pick. 304 [15 Am. D. 214]; In re Buell, 3 Dillon, 116, 122), or a false pretence or fraudulent representation (Regina v. Leech, Dearsly, 642, s. c. 7 Cox Crim. Cas. 100; The Queen v. Rogers, 3 Q. B. D. 28, s. c. 14 Cox Crim. Cas. 22; People v. Rathbun, 21 Wend. 509; People v. Adams, 3 Denio, 190, and 1 N. Y. 173 [45 Am. D. 468] ; Foute v. State, 15 Lea (Tenn.), 712).” In the Palliser case the defendant mailed a letter in New York, addressed to a postmaster in Connecticut, soliciting him to violate his official duty. In concluding the opinion, the court lield that “it might admit of doubt whether any offense against the laws of the United States was committed until the offer or tender was known to the postmaster and might have influenced his mind. But there can he no doubt at all that, if any offense was committed in New York, the offense continued to be committed when the letter reached the postmaster in Connecticut; and that, if no offense was committed in New York, an offense was committed in Connecticut; and that, in either aspect, the district court of the United States for the district of Connecticut had jurisdiction of the charge against the petitioner.”

In the recent case of United States v. Thayer, 209 U. S. 39 (28 Sup. Ct. 426, 52 L. ed.), which was one of unlawful solicitation of campaign contributions, the Supreme Court of the United States, discussing the question of solicitation by letter, says: “The solicitation was made at some time, somewhere. The time determines the place. It was not complete when the letter was dropped into the post. If the letter had miscarried or had been burned, the defendant would not have accomplished a solicitation. . . To sum up, the defendant solicited money for campaign purposes; he did not solicit until his letter actually was received in the building; he did solicit when it was received and read there, and the solicitation was in the place where the letter was received. We observe that this is the opinion expressed by the civil service commission in a note upon this section, and the principle of our decision is similar to that recognized in several cases in this court. Re Palliser (Palliser v. United States), 136 U. S. 257, 266 [34 L. ed. 514, 10 Sup. Ct. 1034]; Horner v. U. S., 143 U. S. 207, 214 [36 L. ed. 126, 12 Sup. Ct. 407]; Burton v. U. S., 202 U. S. 344, 387 [50 L. ed. 1057, 26 Sup. Ct. 688].” While the Thayer case is not identical with the case at bar, the following language very clearly sustains our view, and holds, not only that it is possible to solicit by letter as well as in person, but also that the offense of solicitation, if it be made an offense, is only complete when the letter has reached the addressee in the manner intended by the writer. It also, we think, settles the question that the United States mail can be the agent of him who solicits, and thereby establishes the proposition-.that even a mailman, delivering the letter, may be the agent of the writer, within the terms of §428, even if we were to hold, as contended for by counsel for plaintiffs in error, that the solicitation must be made personally by an agent. In the Thayer case, supra, Justice Holmes, speaking for the court, says: Of course it is possible to solicit by mail as well as in person. It is equally clear that the person who writes the letter and intentionally puts it in the way of delivery solicits, whether the delivery is accomplished by agents of the writer, by agents of the person addressed, or by independent middlemen, if it takes place in the intended way.”

We think it clear, then, that the court of the place where the solicitation is completed by the delivery of the letter, in the way intended and by the agency selected by the defendants, would have jurisdiction of any crime growing out of the solicitation. ' Consequently, we hold that the solicitation by mail of orders for whisky or other intoxicants, to be filled for persons who live in counties where by law the sale of intoxicating- liquors is prohibited, is violative of §428 of the Penal Code. See 9 Cyc. 297 and cit.; Palliser, Horner and Burton cases, supra. To sum up the matter: whether a solicitation is personal or by an agent is not dependent upon the personal presence of the solicitor, but upon whether the means of solicitation, whether oral or in writing, are used by an agent or by the principal himself. The solicitation of orders by mail, for the sale of intoxicating liquors, is personal solicitation, if the seller himself in person writes or mails the letter received by the prospective buyer. The venue of a crime committed by mail is at the point where the matter transmitted by mail is delivered and takes effect. Where a sale of intoxicating liquors is solicited by communication, written or printed, mailed in one State, as no crime is committed until the delivery of the letter in the State where such solicitation is forbidden, the county where the addressee receives such letter and gains knowledge of its contents has jurisdiction of such offense.

Counsel for plaintiffs in error argue that §428 of the Penal Code, as construed and applied by the lower court, gives the law extra-territorial effect, and is repugnant to the commerce clause of the Constitution of the United States. It is insisted that whisky and other intoxicating liquors are as much legitimate objects of commerce as any other articles which may be the subject-matter of barter and trade. Of course, when the subject of interstate commerce is to be considered, the rulings of the Supreme Court of the United States upon this subject very properly should control; and for that reason we can not concur in the contention of counsel. In more than one case it has been held that the control of intoxicating liquors was a matter of police regulation, in regard to whose 'interchange a greater power had been delegated to the States than with reference to other articles of trade. In Pabst Brewing Co. v. Crenshaw, 198 U. S. 40 (49 L. ed. 925, 25 Sup. Ct. 552), Mr. Justice Brown states the. well-known fact that, the Wilson act was passed in consequence of the decision in Leisy v. Hardin, 135 U. S. 100 (34 L. ed. 128, 10 Sup. Ct. 681). In that case the State’s statute prohibiting the sales of liquors was held to be unconstitutional as applied to the sale by the importer in original packages from another State. The decision in the Hardin case, supra, was put upon the ground that liquors had always been recognized by the commercial world as subjects of exchange, barter, and traffic. The Wilson act, 26 Stat. 313, c. 728, provided, “that all fermented, distilled, or other, intoxicating liquors or liquids transported into any State or Territory or remaining therein for use, consumption, sale or storage therein shall upon arrival in such State or Territory be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in. original packages or otherwise.” The purpose of the Wilson act, 'as construed by the Supreme Court of the United States in Pabst Brewing Co. v. Crenshaw, supra, was to enlarge the powers of the States in respect to intoxicating liquors, so that upon their arrival in the State of their destination they should be subject to its police powers to the same extent and in the same manner as though such liquors, had been produced within such State. As -remarked by Justice Brown, “the primary, if not the sole, object of the Wilson act was to attach the prohibitory laws of the State as a police measure to liquors the moment 'they were delivered to the consignee, although they might still be in their original packages.” The scope of the Wilson act is thus stated in re Rahrer, 140 U. S. 560 (35 L. ed. 572, 11 Sup. Ct. 865) : “Congress has now declared that imported liquors or liquids shall upon arrival in a State fall within the cate- - gory of domestic articles of similar nature.”

The ruling in Rhodes v. Iowa, 170 U. S. 412 (42 L. ed. 1088, 18 Sup. Ct. 664), is not in conflict with the Rahrer case, the effect of the holding being merely that the Wilson act did not authorize the laws of Iowá to be applied to liquors while in transit from another State and before their delivery in Iowa. On the contrary, the ruling in the Bahrer case was reiterated, that liquors were divested of their character of articles of interstate commerce after their delivery in Iowa to the consignee. We think it clearly-established that the Wilson bill puts intoxicating liquors, shipped into a State, within the police power of such State upon their arrival and delivery to the consignee, that such liquors do not stand upon the same footing as other articles of interstate commerce, and that any police measure that is a valid exercise of, the police power of the State comes expressly within the purview of the Wilson bill. See also Vance v. Vandercook Co., 170 U. S. 438 (42 L. ed. 1100, 18 Sup. Ct. 674); American Express Co. v. Iowa, 196 U. S. 133 (49 L. ed. 417, 25 Sup. Ct. 182); Foppiano v. Speed, 199 U. S. 501 (50 L. ed. 88, 26 Sup. Ct. 138); Heyman v. So. Ry. Co., 203 U. S. 270 (51 L. ed. 178, 27 Sup. Ct. 104); Adams Express Co. v. Iowa, 196 U. S. 147 (49 L. ed. 424, 25 Sup. Ct. 185). To use the language of Justice White in the Pabst Brewing Co. case, supra, “Applying the Wilson act and the decisions thereunder to the statute here assailed, we think it clear that the contention that it is repugnant to the commerce clause of the constitution is without merit.” It is within the power of each State either to regulate the sale of liquor or to prohibit it altogether in the exercise of its police power.

At the time of the passage of the act of 1893, from which the code section is taken, in numerous counties of Georgia prohibitory laws were effective, while in other counties the sale of intoxicating liquors was legalized. The act, therefore, at that time was only effective in those counties where prohibition was effective. Now it is effective throughout the State, by reason of the passage of the general prohibition bill, approved August 6, 1907. This difference, however, does not affect the validity of the police regulation provided by the act of 1893, but only goes to the scope of the territory affected. In either case it is a matter of- police regulation, and if it does not encroach upon Federal authority it is valid. As -was held by the Supreme Court of Missouri, in the decision quoted in the Pabst case, so we hold that the act now in question, prohibiting the soliciting or taking orders for the sale of intoxicating liquors in any county where the same is prohibited, is a valid police regulation as to traffic which, it is conceded, the State of Georgia has the power to prohibit entirely. The purpose of the act was to make prohibition effective in each and any county where the sale of intoxicants was prohibited; and it is immaterial to the validity of the regulation whether such counties aré few in number or included all the counties of the State. To use the language of the Supreme Court of the United States, “it necessarily results from this that the assailed law comes directly within the express terms of the Wilson act. . . This must be the case, since, as we have seen, the Wilson act, to use the words employed in re Eahrer, places liquor coming from another State, after its arrival, ‘within the category of domestic articles of a similar nature.’ To decide that an exertion by a State of its power to regulate the sale of malt liquors manufactured within the State was an exercise of its police authority, and yet to say that the same, when applied to liquor when shipped into the State from other States, after delivery, was not an exertion of the police power, would be to destroy the Wilson act, and frustrate the very object which it was intended to accomplish, and besides would overrule the previous decisions of this court upholding and enforcing that statute.”

Counsel for the plaintiffs in error, however, argue that to hold that one may not by letter, from without the State, solicit orders for the sale of his liquors which are not in Georgia but are stored in Tennessee would be to affect traffic, in the article and operate to deter shipments to Georgia, and, therefore, that the statute must be treated as if it bore upon the liquor while still in transit as the subject of interstate commerce. A similar contention was made in the Pabst cáse, and the Supreme Court said in reference thereto, “this proposition simply amounts to contending that the Wilson act should be disregarded, since to enforce it would give the States power to regulate interstate traffic in liquor. If when a State has but exerted the power legally conferred upon it by the act of Congress its action becomes void as an interference with interstate commerce, because of the-reflex or indirect-influence arising from the exercise of the lawful authority, the result would be that a State might exert its power to control or regulate liquor, jret if it did so its action would amount to a regulation of commerce and be void. And this would be but to say at one £nd the same time that the power could and could not be exercised. But the proposition would have a much more serious result, since to uphold it would overthrow the distinction between direct and indirect burdens upon interstate commerce, by means of which the harmonious working of our constitutional system has been made possible.”

In insisting that negotiations leading up to an interstate sale of liquors are as much a part of interstate commerce as actual transit of goods, the learned counsel for plaintiffs in error lose sight of the fact that the TYilson bill has placed liquors upon a different plane from ordinary objects of interstate commerce. It is true, as a general rule, that “the negotiation in one State of sales of goods, which are in another State, for the purpose, of their introduction into the former State, constitutes interstate commerce.” 17 Am. & Eng. Enc. Law (2d ed.), 65. Upon this subject counsel for plaintiffs in error say, “if negotiations leading up to interstate traffic are subject to State regulation, there can be but little else left upon which the Federal constitution can act with profit;” and counsel proceed to argue that inasmuch as it is not a crime for a citizen of Georgia to negotiate for the purchase of liquor with a citizen of Tennessee who has liquor to sell, -it can by no means be held to be unlawful for a citizen of Tennessee to negotiate with a citizen of Georgia for the sale of such liquor. This would be true, no doubt, as to any article of commerce except intoxicating liquors. As to intoxicating liquors, the identical question has been decided by the Supreme Court of the United States adversely to the contention of plaintiffs in error. In DeLamater v. South Dakota, 205 U. S. 93 (51 L. ed. 724, 27 Sup. Ct. 447), not only are all the other questions with reference to interstate commerce, which are involved in the present case, adjudicated, but, as to the particular point now under consideration, it is expressly held that, “although a State may not forbid a resident therein from ordering for his own use intoxicating liquors from another State, it may forbid the carrying on within its borders the business of soliciting orders for such liquor, although such orders may only contemplate a contract resulting from final acceptance in another State.” In the opinion in that case, the court says: “The proposition relied upon, therefore, when considered in the light of the Wilson act, reduces itself to this: Albeit the State of South Dakota had power within its territory to prevent • the sale of intoxicating liquors, even when shipped into that State from other States, yet South Dakota was wanting in authority to prevent or regulate the carrying on within its borders of the business of soliciting proposals for the purchase of liquors, because the proposals were to be consummated outside of the State, and the liquors to which they related were also outside the State. This, however, but comes to this, that the power existed to prevent sales of liquor, even when brought in from without the -State, and yet there was no authority to prevent or regulate the carrying on the accessory business of soliciting orders within the State. Aside, however, from the anomalous situation to which the proposition thus conduces, we think to maintain it would be repugnant to the plain spirit of the Wilson act. That act, as we have seen, manifested the conviction of Congress that control by the States over the traffic of dealing in liquor within their borders was of such importance that it was wise to adopt a special-regulation of interstate commerce upon the subject. When, then, for the carrying out of this purpose the regulation expressly provided that intoxicating liquors coming into a State should be as completely under the control of a State as if the liquor had been manufactured therein, it would be, we think, a disregard of the purposes of Congress to hold that the owner of intoxicating liquors in one State can, by virtue of the commerce clause, go himself or send his agent into such other State, there, in defiance of the law of the State, to carry on the business of soliciting proposals for the purchase of intoxicating liquors. Passing from these general considerations, let us briefly more particularly notice some of the arguments relied upon.

“As we have stated, decisions of this court interpreting the Wilson act have held that that law did not authorize State power to attach to liquor shipped from one State into another before its arrival and delivery within the State to which destined. From this it is insisted, as none of the liquor covered by the proposals in this ease had arrived and been delivered within South Dakota, 'the power of the State did not attach to the earryihg on of the 'business of soliciting proposals, for until the liquor arrived in the State there was nothing on which the State authority could operate. But this is simply to misapprehend and misapply the cases and to misconceive the nature of the act done in the carrying on the business of soliciting proposals. The rulings in the previous cases to the effect that, under the Wilson act, State authority did not extend over liquor shipped from one State into another until arrival and delivery to the consignee at the point of destination, were but a recognition of the fact that Congress did not intend, in adopting the Wilson act, even if it lawfully could have done so, to authorize one State to exert its authority in another State by preventing the delivery of liquor embraced by transactions made in such other State. The proposition here relied on is widely different, since it is that, despite the Wilson act, the State of South Dakota was without power to regulate or control the business carried on in South Dakota of soliciting proposals for the purchase of liquors, because the proposals related to liquors situated in another State, But the business of soliciting proposals in South Dakota was one which that State had a right to regulate, wholly irrespective of when or where it was contemplated the proposals would be accepted or whence the' liquor which they embraced was to be shipped. Of course if the owner of the liquor in another State had the right to ship the same into South Dakota as an article of interstate commerce, and, as such, there sell the ■same in the original packages, irrespective of the laws of South Dakota, it would follow that the right to carry on the business of soliciting in South Dakota was an incident to the right to ship ■and sell, which could not be burdened without directly affecting interstate commerce. But as by the Wilson act the power of South Dakota attached to intoxicating liquors, when shipped into that ■State after delivery but before the sale in the original package, so as to authorize South Dakota to regulate or forbid such sale, it follows that the regulation by' South Dakota of the business carried on within its borders of soliciting proposals to purchase intoxicating liquors, even though such liquors were situated in other States, can not be held to be repugnant to the commerce clause of the constitution, because directly or indirectly burdening the right to sell in South Dakota, a right which by virtue of the Wilson act did not exist.”

It must be conceded, as insisted by counsel for plaintiffs in error, that tinder the Wilson act, even in a prohibition State, a resident of that State has the right to contract for liquors in another State and receive the liquors in the State of his residence for his own use. But it does not follow from this that a dealer in the State of Tennessee may himself individually, or b3 means of the mails, or. by circulars, or perhaps by advertisement in the newspapers, or by a traveling salesman, come into Georgia and carry on the business of soliciting from residents of this State orders for liquor, to be consummated by acceptance in the State of the non-resident dealer. To use the language of Justice White in the DeLamater case, “the premise is sound, but the error lies in the deduction, since it ignores the broad distinction between the want of power of the State to prevent a resident from ordering from another State liquor for his own use and the plenary authority of a State to forbid the carding on in its borders of the business of soliciting orders for intoxicating liquors situated in another State, even although such orders may onfy contemplate a contract to result from final acceptance in the State where- the liquor is situated. The distinction between the two is not only obvious but has been foreclosed by a previous decision of this court.” The decisions upon statutes forbidding foreign insurance companies or their agents to make certain insurance contracts with citizens is then referred to by the Supreme Court, and the cases of Hooper v. California, 155 U. S. 648 (39 L. ed. 297, 15 Sup. Ct. 207); and Allgeyer v. Louisiana, 165 U. S. 578 (41 L. ed. 832, 17 Sup. Ct. 427), are cited, and the decision in Nutting v. Massachusetts, 183 U. S. 553 (46 L. ed. 324, 22 Sup. Ct. 238), is cited and analyzed. A portion of the decision of the Supreme Court of Massachusetts in the Nutting case is expressly adopted as follows: “While the legislature can not impair the freedom of McKie to elect with whom he will contract, it can prevent the foreign insurers from sheltering themselves under his freedom in order to solicit contracts which otherwise he would not have thought of making. It may prohibit not only agents of the insurers, but also brokers, from soliciting or intermeddling in such insurance, and for the ‘same reasons.” Nutting v. Massachusetts, 175 Mass. 156 (55 N. E. 895). The ruling of the Supreme Court in the DeLamater case, 'supra, prevents the plaintiffs in error, or any other non-resident dealers in liquors, from sheltering themselves under the freedom of a citizen of Georgia to buy, in order to solicit contracts which, but for the attractive and glaring circulars which may be sent by mail, he would not have thought of making. The Massachusetts ruling, as Justice White in the DeLamater case, supra, says, “is particularly pertinent to the subject of intoxicating liquors and the power of the State in respect thereto. As we have seen, the right of the States to prohibit the sale of liquor within their respective jurisdictions in and by virtue of the regulation of commerce embodied in the Wilson act is absolutely applicable to liquor shipped from one State to another after delivery and before the sale in the original packages. It follows that the authority of the States, so far as the sale of intoxicating liquors within their borders is concerned, is just as complete as is their right to regulate within their jurisdiction the making of contracts of insurance. It hence must be that the authority of the States to forbid agents of non-resident liquor dealers from coming within their borders to solicit contracts for the purchase of intoxicating liquors, which otherwise the citizen of the State ‘would not have thought of making/ must be as complete and efficacious as is such authority in relation to contracts of insurance, especially in view of the conceptions of public order and social well-being which it may be assumed lie at the foundation of regulations concerning the traffic in liquor.”

In passing, we may say that the suggestion was made, in the argument, that certain constitutional questions should be certified to the Supreme Court. TJpon a careful examination of the demurrer we find that no such questions are made. Apart from the fact that no constitutional question is presented with that particularity and definiteness required by the decisions of the Supreme Court and of this court, it is clear that at most the demurrer raises only the question whether, for this court to give to §428 of the Penal Code the extension and construction which we have just given, would be to impinge upon the exclusive powers of Congress in the regulation of interstate commerce, as conferred by the Federal constitution. We have repeatedly held that a point of this kind does not present any such direct attack upon the constitutionality of the statute as to require certification. There are many constitutional questions which it is within the power of this court to decide. While our jurisdiction in that respect is limited, we are not forbidden all cognizance of constitutional law. The clause in the constitutional amendment, creating this court which requires certification of certain questions is necessarily limited by the concurrent constitutional provisions that the decisions of the Supreme Court of the United States upon Federal questions, and the precedents of the Supreme Court of Georgia upon State constitutional questions, are to be applied by this court. Consequently, we have held that where the immediate constitutional question has been directly passed upon either by the Supreme Court of this State or of the United States, such question would not be certified. Upon these propositions see Fews v. State, 1 Ga. App. 122 (58 S. E. 64) ; Hammock v. State, 1 Ga. App. 127 (58 S. E. 66); Anderson v. State, 2 Ga. App. 18 (58 S. E. 401); Walker v. Swift Fertilizer Works, 3 Ga. App. 283 (59 S. E. 850).

For the reasons stated in Southern Express Co. v. State, 1 Ga. App. 700 (58 S. E. 67), a corporation, being responsible for the acts of its agent, is indictable anl punishable just as a natural person would be for any unlawful act done by anjr of its servants as its agent and with its consent, if the act done by such servant in the conduct of the corporation’s business is forbidden by law and its commission is punishable as a crime. For this reason the trial judge did not err in overruling the demurrer interposed by the II. M. Bose Company, setting up the fact that it was a corporation.

The real question in the eases turns on whether the soliciting of sales of liquors can be a crime. Is the solicitation crime, or legitimate commerce? If the State of Georgia has the power, as held by the Supreme Court of the United States, to make the soliciting of orders for intoxicating liquor a crime, as a measure of police regulation, then he who uses any agency to violate that law with success may be guilty of that crime. And his guilt or innocence is not affected by the fact that the solicitation is by letter,' — 'that such an one used the mail as his medium of communication and action,' — any more than if the case was one of sending a threatening letter, a challenge to fight a duel, a circular in regard to a lottery or soliciting campaign contributions, or asking a postmaster to sell stamps upon a credit, or than if the case were even of murder, where the package which caused death was conveyed by mail. Judgment affirmed.


source: Caselaw Access Project

author: Powell, J.

license: Public Domain

text:
    1062.
    TINSLEY v. THE STATE.
    1. An application to continue a motion’for a new trial, in order to enable tire movant to obtain an affidavit as to alleged newly discovered testimony, is addressed to the sound legal discretion of the presiding judge. In the present ease there was no abuse of discretion.
    2. An alleged erroneous instruction of the court to the jury is not to be viewed insularly and apart from the context.
    3. An erroneous instruction to the jury will not work a reversal, if the verdict as rendered makes it manifest that the finding of the jury was in no wise affected thereby.
    4. No reversible error appears.
    Conviction of shooting at another, from Terrell superior court —Judge Worrill. February 8, 1908.
    Argued March 31,
    Decided July 31, 1908.

      James G. Parks, H. A. Wilkinson, for plaintiff in error.

      J. A. Laing, solicitor-general, R. R. Arnold, J. B. Ridley, contra.
   Powell, J.

The plaintiff in error excepts to the overruling of his motion for new trial, and also to the refusal of the trial judge to continue the motion in order to enable him to complete an extraordinary ground. At the time set for the hearing of the motion, the movant’s attorney requested that he be allowed a few days longer in which to prepare an additional amendment, on the ground of newly discovered evidence of one Connor, who was in Quincy, Florida, but was expected to return home in a very short time; and stated to the court that the substance of the newly discovered evidence was, that Connor was at the house of Emma Bumney at the time the defendant was accused of shooting the prosecutor, and saw the prosecutor get up from his chair and draw a pistol and advance on the defendant; that the defendant began to back, and the prosecutor kept advancing; that he saw him get into a tussle, and during the tussle the pistol fired; and that the prosecutor was trying to pull the pistol from the defendant at the time it fired. Movant’s counsel admitted that he had not seen" or talked with the proposed witness in person. The refusal to allow the additional time in which to submit the proposed amendment and the affidavit of Connor in support thereof was placed upon the ground that the movant had had ample time to prepare his case, and upon the further ground that the alleged newly dis■covered evidence was merely cumulative and impeaching. The court'proceeded to hear and determine the motion for new trial.

The rule that all applications for continuances are addressed to the sound legal discretion of the court, and that this discretion will not be interfered with unless manifestly abused, is applicable to the hearing of a motion for a new trial. The original motion was filed January 9, 1908. The hearing was first set for January 31, and was continued by proper order until February 8, 1908, which was the date upon which the' further postponement was asked. Thus thirty days had elapsed between the original filing of the motion and the hearing, and it was not made to,appear that counsel had not had time enough (after he was informed of the nature of Connor’s testimony) to procure the witness’s affidavit, even though he might have been in Florida. It is true that counsel stated that he had learned of this evidence only a few days before the hearing, but the term “a few days” is necessarily indefinite, and even a few days might be ample time in which to procure the affidavit of a witness in Quine}', Florida, if modern facilities for intercourse, such as mail, telephone, and telegraph were used. Before we could say that the judge abused his discretion, it would have to appear from the record that Quincy, Florida, was deprived of communication with the outside world, or that its location, as compared with the residence of the defendant’s counsel, was so-distant, or the definite time intervening between the knowledge of Connor’s testimony and the date of the hearing was so short,, that the testimony of the witness could have not have been procured by the exercise of ordinary diligence.- Comparing the proposed testimony with that produced by the defendant on the trial,, it appears that it would have been only cumulative; and for this-reason it appears that the court was justified in refusing to delay the hearing of the motion to obtain it.

It is insisted, in the first ground of the amended motion for a new trial, that the-court intimated an opinion that the weapon was used by the defendant, although that such was the case was denied by the defendant, and although it is an issuable fact whether the defendant used a weapon, or whether the prosecutor was-wounded by the accidental discharge of a pistol. The instruction of which complaint is made is in the following language: “In order to determine the intention with which the defendant acts,, you may look at the nature and character of the weapon used by him; you may look to the circumstances under which he used it, you may look at the manner in which he used it.” We have had occasion to remark several times that a criticism upon á disconnected excerpt from a charge to the jury is frequently unfounded, when the extract of which complaint is made is considered by the reviewing court (as it must be by the jury) in connection with the charge as a whole. Viewed thus, this charge is relieved by the context from the imputation of error. The court was charging in general and abstract terms as to the elements of an assault with intent to murder, and, upon the element of intention, used the language quoted above. It is plain that the “defendant” in the mind of the court was not the particular person on trial, but the hypothetical person who was the actor in the abstract proposition the court was announcing.

In the fourth ground of the motion for a new trial it is insisted that the court erred in charging the jury as follows: “If you should believe, at the time the assault was made, if any, that the defendant in this case got into a struggle or tussle with the party named in the bill of indictment, namely S. C. Winn, and that he didn’t shoot at him or intentionally hit him, but that it was an accidental discharge of the pistol, then you would not be authorized in finding him guilty of shooting at another, but under such conditions you would be authorized in finding him guilty of an assault.” It is contended that this instruction was unauthorized, under the law and testimony in the case. Compared with the indictment in the case, this instruction was erroneous; for the defendant was charged with making an assault only by shooting with a pistol. While, as an abstract proposition, the charge quoted would have been correct, it was not correct in this case, for the lack of any allegation in the indictment authorizing it. However, it is harmless error; for the defendant was not convicted of an assault, but of the offense of shooting at another; and thereby it clearly appears that the jury did not adopt that view of the evidence to which alone this charge was applicable. If the jury observed the charge of the court, as we are bound to presume they did, no harm resulted to the defendant from this error.

There are other exceptions to the charge. We have considered them carefully. None of them are well taken. Barring the slight blemish already dealt with, the charge was very able, full, and fair. Judgment affirmed.

Russell, J., dissents.


author: Pendleton, J. Powell, J.,

text:
    1071.
    GEORGIA RAILWAY & ELECTRIC COMPANY v. DOUGHERTY.
    1. D. sued, a street-railway company for damages on account of personal injuries received by him. There was, on the trial, a direct conflict in the testimony on the controlling question in the case. D. was the only witness in his own behalf on this point. His testimony was contradicted by three witnesses introduced by the defendant. Counsel for D., in the concluding argument, said he hoped that some of the jury knew D. personally, and said further that a man’s life, if properly lived, was his best asset. Defendant’s counsel objected to this statement, on the ground that a juror could not consider his personal knowledge of the plaintiff; and moved the court to caution the jury to that effect. This the court declined to do. Counsel for the plaintiff then made a similar statement to the jury, and the defendant’s counsel again moved the court as above stated, but the court again declined to interfere. Held, that the court erred in refusing to instruct the jury that a juror must not consider any personal knowledge that he might have in reference to the plaintiff’s character. What passed between the court and counsel might have left the jury under the impression that a juror could consider his personal knowledge of the plaintiff’s character.
    2. Where an attempt is made to impeach a witness by proof of contradictory statements previously made, the witness may explain the statement previously made, by showing that it was not made with reference to the transaction then being investigated, but was made with reference to another transaction, that happened at a different date, and may also give the details of the former transaction, for the purpose of showing that they corresponded with the alleged contradictory statements previously made.
    3. The other assignments of error are without merit.
    Action, for damages, from city court of Atlanta — Judge Reid. January 6, 1908.
    Argued May 7,
    Decided July 31, 1908.

      Rosser & Brandon, Walter T. Colquitt, Ben. J. Conyers, for plaintiff in error.

      Arnold & Arnold, Harvey Hill, C. D. Hill, contra.
    Hill, C. J., being disqualified, Judge Pendleton, of the Atlanta circuit was designated to sit in this case.
   Pendleton, J.

The plaintiff in the court below sued for damages which he alleged he received in alighting from a car of the defendant company. He claimed that the car stopped, and that, while he was in the act of stepping from the ear, it suddenly started forward and threw him to the ground. The defendant claimed that the plaintiff stepped from the car while it was in motion and before it came to a stop. The plaintiff supported his theory of the case by his own testimony alone. The defendant supported its theory of the case by the testimony of three witnesses. The judge charged the jury that, under the admissions made by counsel for defendant, it was not necessary for them to consider the question of negligence. It was admitted by defendant’s counsel that the plaintiff would be entitled to recover if he received the injuries in the way he claimed to have received them, but it was contended that he would not be entitled to recover if he received them in the way the defendant claimed he received them. It will thus be seen that there was a plain and sharp contest before the jury between the plaintiff’s theory and the defendant’s theory. The plaintiff’s theory was supported by one witness, —the plaintiff himself; the defendant’s theory was supported by three witnesses. It was therefore necessary to the plaintiff’s recovery that the jury should give more credit to his testimony than to that of these three witnesses. His counsel, in the concluding argument, stated to the jury: “Gentlemen, I don’t know whether any of you are personally acquainted with the plaintiff, but I trust you are.” Counsel for the defendant appealed to the court to stop this line of argument, on the ground, among others, “that the jury could not legally consider their personal knowledge of the plaintiff’s character and reputation.” The court declined to interfere, and counsel for the plaintiff continued: “Gentlemen, I hope that some of you do know Mr. Dougherty. A man’s life, if properly lived, is his most valuable asset. No noble life was ever lived in vain. If there should arise a question of veracity between Gen. R. E. Lee, on the one side, and two or three like myself, and Ben Conyers, and Walter Colquitt, on the other, you would, and ought, to believe General Lee rather than a whole cow pen full of us.” Defendant’s counsel then again moved the court to stop this line of argument, and to grant a mistrial, or caution the jury against giving consideration to their personal knowledge of the plaintiff’s character, ^but the court overruled this motion, and allowed counsel to proceed with the same line of argument.

What was the meaning of counsel’s statement to the jury? It was, in effect, this: “In this sharp conflict between Mr. Dougherty and three witnesses, I trust there are some of the jury who know Mr. Dougherty personally; I hope some of you know him; a man’s life, if properly lived, is his most valuable asset, and I feel sure that if you know that life, you will believe him in qjreference to all three of these witnesses who testify against him.” Plaintiff’s counsel say there was no intimation as to whether Mr. 'Dougherty’s character was good or bad. Certainly the jury would not suppose that he was “hoping” that they would know something about the plaintiff that was bad. They also contend that Mr. Dougherty’s character was in issue. Suppose it was; that issue ought to be tried, like all other issues, by the testimony»-. Again, it is claimed that the presumption was that Mr. Dougherty’s character was good. It is quite evident that counsel was not calling the attention of the jury to presumptions; there were three other witnesses who had presumptions in their favor. Something that the other witnesses did not have in their favor was what was needed, and what was evidently being sought after. We are not, however, considering this statement of counsel from any of these standpoints, but from the standpoint that what passed between the defendant’s counsel and the court, in view of the statements made, would authorize the jury to infer that a juror might consider his personal knowledge of the plaintiff’s character.

At the common law, a juror was permitted to consider his personal knowledge of the plaintiff, the witness, and the facts. This resulted from the fact that the jury came from the vicinage; for the reason that they were supposed to know the parties, the witnesses, and the facts. In Rogers v. King, 12 Ga. 229, there is an obiter to this effect, which seems to be followed in Anderson v. Tribble, 66 Ga. 584, Head v. Bridges, 67 Ga. 236, and Howard v. State, 73 Ga. 84. These cases were reviewed and overruled in Chattanooga, Rome & Columbus R. Co. v. Owen, 90 Ga. 265 (15 S. E. 853), the court holding that jurors must not consider their personal knowledge of the witnesses. This decision was made in 1892, and was codified by the compilers of the code of 1895, and appears as §5337, as follows: “A juror should not act on his private knowledge respecting the facts, witnesses, or parties, unless sworn and examined as a witness in the case.” In Savannah, Florida & Western Ry. Co. v. Quo, 103 Ga. 125 (29 S. E. 607, L. R. A. 483, 68 Am. St. R. 85), this section is cited to support the proposition that a juror could be introduced as a witness; as is also the case of Chattanooga, Rome & Columbus R. Co. v. Owen, supra. Section 5146 of the Civil Code deals with the question of the credibility of the witnesses, and provides that the juror may consider, along with many other things, in passing upon the credibility of the witnesses, “their personal credibility, so far as the same may legitimately appear from the trial.” The personal knowledge of the juror does not legitimately appear, if the juror is not sworn and examined in the case; and if a verdict is based on that knowledge, in a case in which he is not sworn as a.witness, it is based on that which is dehors the record. When counsel for the plaintiff, in the concluding argument, expresses the hope that some of the jury may have a personal knowledge of the plaintiff, who has been sworn as a witness in his own behalf, and opposing counsel object, on the ground that a juror should not consider his personal knowledge of the plaintiff, the court ought to caution the jury against considering any personal knowledge that any of their number might have as to the plaintiff’s character.

The defendant introduced the conductor as a witness. He testified that the car was moving at the time the plaintiff stepped off, and that the plaintiff stated to him as soon as he got up, after having fallen, that the company was not at fault; that he had made a mistake in supposing that the car had stopped when it had not. The plaintiff was reintroduced as a witness,.and admitted that he had a conversation with a conductor, in substance as stated, but testified that it was at another time. He stated that on a former occasion he stepped off the car while it was in motion; and he went into details of the former transaction, to show that it was not the injury for which he was then suing. The defendant objected to all of this testimony, on the ground that it was hearsay, irrelevant, and a self-serving declaration. The court allowed the testimony, and, we think, correctly. It was a difference of recollection between the witnesses as to the dates of the occurrences. If A testified that B made a statement to him on a given date, B would certainly be allowed to admit the statement, but deny the dáte, and to go further and show that he was a thousand miles away on the-date in question, in a distant city, and go into particulars to show that he could not be mistaken about the date. It has been held that a witness may explain a contradictory" statement, by showing that he was drunk when it was made, or that he did not understand the full effect of the English language, or that the scrivener did not correctly take down the statement. Jesse v. State, 20 Ga. 156, supports the last proposition. It would seem to he clear that the witness could deny the date of a contradictory statement and that it referred to the transaction in question, and could state the transaction that it did refer to. Judgment reversed.

Powell, J.,

specially concurring.

If the legislature or one of those courts by whose decisions I am judicially bound should declare that twice two are five, I would not know, in the law of the next case coming before me and involving mathematics, whether three times three should he declared to be six, or. some other number. Such inconsistencies frequently harass my judgment and always leave me in doubt. Our Supreme Court, and the legislature, through the code, have declared that the jurors shall not act upon personal knowledge of the character of the parties and the witnesses. Ideally speaking, this is possible; practically and psychologically considered, it. is impossible. The jurors, as human beings, in passing upon the credibility of the witnesses, necessarily must he, and in all cases are, to a greater or less degree affected by whatever knowledge they personally possess as to the character of the persons testifying. Shall we say, then, that an-intelligent lawyer (knowing as he does that, despite the mandate of the law to the contrary, the jurors will necessarily, to some extent, use their private knowledge if they have any) must absolutély ignore this practical feature of his case? May he not candidly assume this truth, in his discussion of the case to the jury? Suppose Mr. Hill had said to the jury, “The law forbids, that you should act upon your personal knowledge of the character of the witnesses; but I know that in a large degree this is psychologically impossible; and I congratulate myself, as counsel for the plaintiff, who has testified in his own behalf, that I am to suffer no disadvantage from this fact, in that I feel sure that whatever personal knowledge you possess and may use will merely corroborate, and not tend to detract, from that good character which the law allows you to presume he possesses,” would this have been improper? It is conceded that, in the absence of evidence showing.to the contrary, the law presumes that every party and witness is of good character, and that this presumption is sufficient of itself to justify counsel in urging to the jury, or in assuming before the jury, that the party or witness is of good character. See Bennett v. State, 86 Ga. 404 (12 L. R. A. 449, 22 Am. St. R. 465, 12 S. E. 806). It is conceded that in this case it was legitimate to point to the fact that the plaintiff had lived in the community throughout a long number of years and had been engaged in an honorable occupation; for these things appeared from the evidence. From this circumstance the presumption of his good character was strengthened; for if his life had not been honorable, his bad character would thereby have been so much the more easily capable of proof by the defendant. There was no evidence of his bad character; nothing on the trial indicated it. His good character was therefore a fact established in the case, — a fact of which the jury were required to take cognizance, even under the most ideal view of the jury’s prerogative in such matters. If the remarks of the plaintiff’s counsel in the present case are to be construed as urging the jury to act upon their private knowledge and find that the plaintiff was of good character, he was merely asking them to reach, through that practical process which he as a reasonable man knew they would use, the same result as.they should necessarily reach by the theoretical process which the law prescribes. If the actual and the theoretical truth in a given case are demonstrated to be the same thing, I can not see how either the opposite part} or the ultimate ends of justice can be very much hurt by the application of the one where the other is required. Now if Mr. Hill had said to the jury, of the witnesses for the opposite side, literally or in substance, “Gentlemen, they are presumed to be of good character, but in this case they are not telling the truth. We have not attacked their characters by proof, but I hope you know them personally, for your personal knowledge will not corroborate the presumption which the law raises in their favor,” then there would have been an attempt to array the actual against the theoretical truth, and the court could logically say, “This is juridie error.” I think that counsel should be allowed considerable latitude in argument, provided they do not attempt to bring into the case illegitimate extraneous facts. Matters which the law authorizes to be presumed are not extraneous; nor are those things which are within the range of the ordinary and common observation of all thinking men. At one time there was a tendency, in the decisions of our Supreme Court, to hold counsel to what, to my mind, seems to be undue strictness; but there is a tendency in the later decisions of that court to allow greater latitude. My personal judgment as to what is best leads me to desire to do nothing to counteract this tendency in what seems to be the right direction; and out of this consideration I am strongly led to dissent in this case. However, this verdict is not strongly supported by the evidence; and since what the French would call the tout ensemble of this incident of the trial may have unfairly prejudiced the defendant’s case, I will specially concur. See, in this connection, the concluding remarks in the Bennett case, supra. If counsel for the defendant had desired the jury to be instructed that they had no right to act on personal knowledge of the witness or party, a timely written request would have availed them.


author: Hill, C. J.

text:
    1099.
    McLeod v. Faircloth Brothers.
    Certiorari, from Wilcox superior court' — -Judge Whipple. February 11, 1908.
    Submitted May 8,
    Decided July 31, 1908.

      Herbert L. Grice, for plaintiff in error.

      W. A. Holt, Hal Lawson, contra.
   Hill, C. J.

Section 4644 of the Civil Code requires that “the plaintiff in certiorari shall cause written notice to be given to the opposite party in interest, his agent or attorney, of the sanction of the writ of certiorari, and also the time and place of hearing, at least ten days before the sitting of the court to which the same shall be returnable.” This requirement of the statute was not complied with, and no reason was shown for a failure to comply therewith. Consequently the judgment dismissing the certiorari, on motion of the defendant in certiorari, must be affirmed. Johnson v. State, 2 Ga. App. 182 (58 S. E. 415), and decisions of the Supreme Court therein cited. Judgment affirmed.


author: Russell, J.

text:
    1127.
    ROYAL UNION MUTUAL LIFE INSURANCE COMPANY v. McLENDON.
    1. Policies of insurance will be liberally construed in favor of the object to be accomplished, and conditions and provisions therein will be viewed, if ambiguous, most strongly against the insurer. Forfeitures are not favored, and the courts will be prompt to seize hold of any circumstance appearing in the whole transaction that will prevent forfeiture of rights accruing to the insured or the beneficiary.
    2. The policy of insurance in the present ease appears from the record to have been in full force and effect at the time of £lie death of the. insured.
    Action upon insurance policy, from city court of Atlanta— Judge Reid. April 3, 1908.
    Argued June 11,
    Decided July 31, 1908.

      Brown & Randolph, J. J. Bowden, for plaintiff in error.

      C. W. Smith, M. A. Hale, S. B. Hatcher, contra.
   Russell, J.

The defendant in error brought suit against the insurance company to recover upon a contract of insurance issued by the company upon the life of her husband. The defendant demurred to the petition, both generally and specially. The plaintiff, with the permission of the court, amended her petition, to meet the special demurrer, and thereupon the trial judge overruled the general demurrer; and exception is taken to these rulings.

The record really presents only one question, — had the policy lapsed at the time of the death of the plaintiff’s husband; or, to put the question more exactly, do the allegations of the petition show that at the time of McLendon’s death the contract of insurance was a valid obligation, binding upon the insurer ? There can be no dispute as to the allegations of fact; because, for the purposes of the demurrer, the facts stand admitted. We come, then, to determine the question whether the policy had lapsed at the time of McLendon’s death. The issue must be settled by a consideration of the insurance policy as a whole (including all of its terms, conditions, and stipulations), keeping always in mind the cardinal rules of construction, — that the whole contract must, if possible, be harmonized, and effect given to the manifest intention of the parties in its execution. As we have already held, in Arnold v. Empire Life Ins. Co., 3 Ga. App. 685 (60 S. E. 470), “Policies of insurance will be liberally construed in favor of the object to be accomplished, and conditions and provisions of every contract of insurance will be strictly construed against the insurer who prepares and proposes the contract. If a policy of insurance is. capable of being construed in two ways, that interpretation should be placed upon it which is most favorable to the insured; and, forfeitures not being favored, the court should be ‘prompt to seize hold of any circumstance that indicates an election to waive a forfeiture or an agreement to do so.’ ” In the present case, however, as it appears to us, the policy of insurance now under consideration is so free from ambiguity as to admit of but one construction. The intention of the parties to a contract is to be ascertained, in order that the whole contract, and every part thereof, so far as consistent with the rules of law, may be carried into effect. Hodges v. Hall, 5 Ga. 165; West v. Randle, 79 Ga. 28 (3 S. E. 454); Brown v. Ramsey, 74 Ga. 215. While a contract of insurance prepared and proposed by the insurer should be most liberally construed in favor of the insured (who ordinarily has no hand in the preparation of the contract), still it is not to be overlooked that the construction which will uphold the contract as a whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part. Jackson v. Carswell, 34 Ga. 281; Fletcher v. Young, 69 Ga. 592; Maxwell v. Hoppie, 70 Ga. 160. It is not only for the court to construe the contract, but it is also the duty of the court to determine, as a matter of law, whether a given state of admitted facts works a forfeiture or a lapse of a policy of insurance. The decision of the trial court upon the demurrer was practically the termination of the case; and we think that the demurrer was properly overruled.

Frank P. McLendon, the deceased, procured the policy of insurance in question on the 8th of April, 1899. The annual premium to be paid was $66.20 per annum. Under the terms of the policy this premium was to be paid wholly in cash, or the company agreed to advance the insured each year, at his option, $16.55 of the annual premium, and require only $49.65 to be paid in cash. Fox the $16.55, provided he desixéd that amount advanced or loaned to him in accordance with the terms of the contract, the insured was required to execute an acknowledgment of indebtedness, bearing interest at five per cent, per annum. In paying the first year’s premium McLendon availed himself of this option and executed the following acknowledgment of indebtedness: “1 hereby acknowledge that the Boyal Union Mutual Life Insurance Co., of Des Moines, Iowa, has advanced me sixteen and 55/100 dollars, being part premiums on policy No. 6872, issued to me bj said company on the 8th day of April, 1899, for $1,000.00 at age 46 on the 20 year endowment plan (¿ctuaries 4 per cent.), which amount, with, any additional advance stated on the renewal receipt and endorsed hereon, and with interest added annually at five per cent., shall be a lien on said policy until extinguished by the surplus apportioned thereto, or is otherwise paid to the company on or before the end of the accumulative period under said policy.” Dated April 8, 1899. The premiums payable on April 8, 1900, 1901, and 1902 were paid by the deceased, thus carrying his insurance to April 8, 1903, by virtue of payments made by him. No subsequent payment was made by him or in his behalf. He died on March 16, 1905. In addition to the advancements to which we have heretofore called attention, the company had made small advances, though at a slightly higher rate, during 1900, 1901, 1902, and 1903, amounting in all to $52.56, which appears to have been entered upon the original obligation quoted above, making an indebtedness of $69.11, which, with, the interest, computed to be $8.26, aggregated $77.37, which, on June 30, 1903, was the amount of the indebtedness of the insured to the company for loans or advancements. One of the stipulations of the cohtract is that “at the end of the third or any subsequent policy year, all premiums having been paid, this company guarantees: . . (,C) If any premium herein is not paid when due, the same shall be charged as a loan against the cash surrender value if it be sufficient. The insurance will continue in force so long as this fund will pay for the same at the term premium rates of the company. At any time before the expiration of this extended insurance, the insured may furnish satisfactory health certificate and pay arrearages, with interest thereon, and continue the original policy of insurance as though no default in payment had ever occurred.” The loan and cash-surrender values are embodied in the policy. The insured had paid for four years. As specified in the policy, he was entitled at that time to a guaranteed cash-surrender value of $108; so that under the stipulations of the policy, it was the duty of the company to have deducted the premium of $66.45 from the cash-surrender value of $108, in payment of the premium payable April 8, 1903, and which would have extended the insurance to April 8, 1904. Had the company complied with this stipulation of the contract, the policy would have been in force on April 8, 1904, with a cash-surrender value, specified in the policy, of $146, less the $66.45, which had been deducted to pay the premium payable April 4, 1903, and leaving* $79.55 of guaranteed cash-surrender value available upon that date, with which to pay the premium then again due, of $66.45, which would have extended the contract-of insurance to April 8, 1905, nearly a month subsequent to the death of the insured, and would have left $13.10 still available upon the cash-surrender value. So it is clear to us that, so far from the policy having lapsed, it was within the power of the defendant company, and its duty, under the provisions of this contract, to have kept the policy in force for a longer period of time-than the insured lived. And as the rights of the beneficiary can not be defeated by either wilful violation by the defendant company of its contract, or even by its unintentional negligence, we-hold that the policy was, at the time of the death of the deceased,, by the very terms of the contract, a valid policy of insurance. It was the evident intention of both parties to the contract, after the payment of three premiums, to provide for the extension of the contract automatically, so as to give the insured the benefit of his share of the surplus fund, and, in any event, to reward his faithfulness in paying three premiums, by providing that the guaranteed cash-surrender value should provide protection against forfeitures,, as far as the amount was consistent with that result. Each payment thus made, according to the company’s own contract, would increase the amount of the cash-surrender value, though, of course,, the increase not being great enough to pay any premium in whole,, it would only be a question of time before there would be no cash-surrender value available for the purpose of paying further premiums. In the estimate we have given above, we have taken the-view of the case which, under the facts, is the most favorable-to the company; because, if the company had continued the course-of dealings which had been carried on by the deceased, and had advanced upon the certificate the sum of $16.55 annually, to be paid out of the surplus when a settlement was had, then there-would have been deducted from the cash-surrender value only $49.45-each yean, instead of $66.55. Or if the term rate had been deducted, it appears that only $36.40 per annum could have been taken from the cash-surrender value and applied to the extension of the insurance, which would have made the $108 considerably more than sufficient to pay the two premiums due April 8, 1903 and 1904, in which the insured defaulted.

It is insisted by counsel for the plaintiff in error that when default was made in the payment of the premium which was payable April 8, 1903, the company had the right first to apply from the cash-surrender value the sum of $77.37, in payment of McLendon’s obligation for advances; which would have left only $30.63 to be applied upon the insurance premium, at term rates, and that thereby the insurance could only be extended to January 29, 1904, more than a year before the insured died, by which time the policy expired. We are unable to sustain this contention, in'view of the stipulations of the contract as a whole. The contract distinctly recognizes the fact that there is a surplus fund as well as a mortuary fund, and the obligation of the insured for the loan of $16.55, advanced him annually at five per cent, interest, is not payable upon any definite day nor upon any fixed contingency, but the amount advanced April 8, 1899, together with any additional advances stated in the renewal receipt and endorsed thereon, is to be a lien, until extinguished by the surplus apportioned to the policy, or until it is otherwise paid to the company. The insistence of the plaintiff in error would deprive the insured of any participation whatever in the surplus fund, and yet, as appears from the policy, the guaranteed loan value at the time that the cash-surrender value would have been exhausted by the payment of the two premiums to which we have .heretofore alluded would have been $228, while the insured would only have received the benefit, in all, of $146 of cash-surrender value; showing that there would have been a surplus, at the time that the company was entitled to make a settlement, of about $82, or more than enough to pay the company’s advances of $77.37. The policy in question was an endowment policy, and recognized a surplus in which the insured was entitled to participate, arising from every premium except the first. It is probable that this surplus collected from policyholders, over and above the experience cost of meeting-mortuary claims and providing the reserve fund required by law, was far greater than the amount indicated by the difference between the loan value and the cash-surrender value at the end of each year, as stipulated in the policy. But it is unnecessary for us to consider this view of the question, or the statutes of the State of Iowa in reference thereto, for the reason that it is plainly apparent to us as it was to the judge of the court below, that there was and would be, at any time during the application of the cash-surrender value to the payment of premiums so as to automatically extend the insurance, a sum sufficient to pay the advances made to the insured and for which the company held his obligation, in accordance with its terms. The court properly held that the condition of the contract as follows: “Policy liability. Any indebtedness due the company by reason of this policy (including any balance of the year’s premium) shall be a first lien against any equity, right, or interest of the insured, his heirs or assigns, under this policy, and such indebtedness shall first be deducted in settlement of any rights or privileges arising by virtue of this policy,” when construed in connection with the provision with reference to the payment of premiums out of the cash-surrender value, simply gave the company a lien collectible from the amount due the beneficiary out of the proceeds of the policy, and conferred no right to deduct the $77.37, claimed as a lien, from the cash-surrender value. The advances made, under the contract between the jDarties, were chargeable to the excess of premium collected and the dividends to be allowed during the life of the insured, and in case of death were to be deducted from the total value of the policy. If it was the intention of the parties that the cash-surrender value could be applied to any pre-existing debt, or to any purpose other than the payment of premiums as to which the insured had made default, then it should have been so stipulated in the contract of insurance. The certificate of advancement, which we have quoted above, is equivalent to a promissory note, and “a note accepted in payment of a premium is a separate and independent transaction, . . and has no relation to the contract of insurance, except as stipulated in such policy of insurance.” Arnold v. Life Ins. Co., supra. In confirmation of this view, it is stipulated in the policy that “in case of death the balance of the year’s premium, if any, and any other indebtedness to the company by reason of this policy, shall be deducted from the amount to be paid hereunder.” Construing this with paragraph C of the non-forfeiture clause, which provides, that “if any premium herein is not paid when due, the same shall be charged as a loan against the cash surrender value, . . and the insurance will continue in force so long as this fund will pay for the same,” and bearing in mind that it was optional with the insured, ■throughout the entire life of tbe contract, even including tlie first year (for which j’uar the premium was applied wholly to expenses), to pay only $49.65 in cash, it becomes perfectly clear that the $16.55, annually advanced at the option of the insured, was merely a portion of the excess premium, over and above the actual cost of insurance, which the company was anxious to lend the insured at five per cent, interest. It was virtually lending the insured his own money and charging him five per cent, for the privilege of using it.

The trial judge committed no error in overruling the general demurrer. To meet the special demurrer there should perhaps have been a more distinct averment as to the amount of premiums paid, in order to entitle the beneficiary to a recovery of fifty per cent, of the premiums guaranteed to her by the contract in the event the insured died within the twenty-year period, though we hardly think this necessary, in view of the fact that the petition alleges that four of the annual premiums were paid, and the policy specifies tbe amount of each annual premium, and the ascertainment of the fifty per cent, would be a mere matter of calculation. Even if the exact amount should have been specified, failure to sustain the special demurrer as to this point should not work a reversal of the judgment overruling the general demurrer. The amendment can still be made upon the trial.

Judgment affirmed.