text:
    1072.
    McARTHOR et al. v. OGLETREE et al.

    1. Where one of the parties to an action vouches a third person to participate in the suit, on the ground that he is a party at interest, before the voucher can invoke the judgment in that ease as an estoppel against the vouchee in a subsequent action instituted between these two, it must aliunde appear that as to the cause of action upon which, by legal necessity, the original judgment was based, the voucher in fact had an action over against the vouchee; except in those eases where the prior judgment necessarily, under the particular facts, also establishes this, relationship.
    2. Whenever, in a suit by the voucher against the vouchee, it appears that the former does in fact have a lawful and enforceable right of action over (whether by contract or by operation of law) against the latter as to the cause of action upon which a prior judgment has been rendered, that judgment is conclusive upon the vouchee as to those matters and facts which, under the pleadings in that case, the vouchee would have had the right to prove and urge in resistance to the judgment as rendered.
    Action upon bond, from city court of Atlanta — Judge Reid. January 27, 1908.
    Argued May 5,
    Decided June 18, 1908.
    McArthor and the other plaintiffs were the owners of a building occupied by tenants, in the city of Atlanta. Desiring to have the building remodeled and enlarged, they employed one McGilvray, as contractor, to do the work. In his contract McGilvray agreed to be responsible for any damage done to other persons through the construction of the work and to hold the property owners harmless. The price of the work was increased by reason of the fact that the building was occupied by tenants and that the contractor agreed to carry on the work with due care and in such manner that the tenants could continue to do business. Ogletree signed a bond guaranteeing that McGilvray would perform his contract in all respects. During the progress of the work the building collapsed. The tenants sued the property owners for the damage to their stock and to their business caused by the collapse; and they alleged in their suit that the collapse was occasioned by the improper and negligent manner in which the work of repairing and remodeling the building was done. McGilvray and Ogletree were duly notified of the pendency of this action and were vouched into court to defend it. A verdict was recovered against the landowners by the tenants. Thereupon the landowners filed the present action against McGilvray and his surety, Ogletree, seeking repayment of the sums they were required to pay out in settlement of the judgment. The case came to this court on the sustaining of a demurrer to the plaintiff’s petition. The judgment of the lower court was reversed. In the report of the case as it appeared in this phase (1 Ga. App. 643) there is a fuller statement of the facts than is here made. Upon the ease proceeding to trial in the city court, the plaintiffs introduced in evidence the contract between the parties, the suit brought by the tenants, and the notice vouching the present defendants. It was admitted that judgment against the present plaintiffs was duly rendered and that it was paid off by them. The defendants presented no proof and the judge directed a verdict against Ogletree, McGilvray having previously been discharged in bankruptcy. Ogletree made a motion for new trial, on the general grounds; he especially set up that the court erred in directing a verdict against him, because the plaintiffs’ proof was not sufficient to sustain a case. The trial judge granted this motion for new trial, saying in the order: “The judgment obtained by Morse, Williams & Company against H. W. McArthor et al. is conclusive against the defendants in this suit as to the amount thereof, and also as to the right of Morse, Williams & Company to recover. Beyond that it is only prima facie evidence, and the defendants in this suit have the right to show, if they can, that the injury complained of was not due to their fault, or that the plaintiffs in this suit were also at fault. In other words, while the Morse, Williams & Company judgment is conclusive to the extent stated, these defendants have a right to show, if they can, that they are not liable for the amount which it is established by the judgment Morse, Williams & Company had the right to recover against the plaintiffs in the suit. For the reasons above stated, which seem to me to be supported by the authorities I have examined, I am quite clear that error was committed in directing a verdict for the plaintiffs in this case, and the motion is granted and a new trial ordered on that ground.” The plaintiffs bring error to the granting of the new trial.

      Westmoreland Brothers, J. N. Bateman, for plaintiffs.

      Mayson & Hill, fox defendants.
   Powell, J.

(After stating the foregoing facts.)

Section 5234 of the Civil Code, which provides, “Where a defendant may have a remedy over against another, and vouches him into court, by giving notice of the pendency of the suit, the judgment rendered therein will be conclusive upon the party vouched, as to the amount and right of the plaintiff to recover,” is merely declaratory of the principle announced by the Supreme Court in the case of Western & Atlantic R. Co. v. Atlanta, 74 Ga. 774; and the language of that decision is an almost literal adaptation of what is said by the Supreme Court of the United States in the case of Chicago v. Robbins, 2 Black, 418 (17 U. S. (L. ed.) 298). This code section, while not exhaustive, states the law governing such eases with fair accuracy. Under it the person vouched into court is bound by the judgment rendered, so Ear as the plaintiff’s right to recover and the amount of the recovery are concerned, but before any application of this principle can be made, it must appear that the defendant in that suit is entitled to a remedy over against the person vouched. When the person vouched is sued the initial question arises, “Has the present plaintiff an action over against the present defendant on account of the matter involved in the former suit ?” This question the former judgment has not concluded. To state it in slightly different language, “While a judgment against the person to be indemnified will be conclusive on the person responsible to him, so far as concerns the fact of the rendition of the judgment, its amount and the cause of action on which it was rendered, it will not determine the question whether or not the one person is in fact responsible to the other; nor will it preclude the person responsible over from setting up any defense which, from the nature of the action or the pleadings, he could not have interposed in the first action had he been a formal party to it.” The first judgment conclusively establishes the relationships and liabilities existing between the original parties as to the cause of action asserted in the first .suit, but does not determine the relationships and liabilities between the party vouching and the person vouched, as to that cause of action, except so far as those relationships and liabilities are necessarily involved in the first suit, and in the judgment rendered therein. The relationship between the voucher and the vouchee may arise by contract, express or implied, or by operation of law. When the relationship is contractual it is usually easier of ascertainment than in other cases. For example, the warrantor of the title of a defendant in an ejectment suit bears to the cause of action an express contractual relationship; if the judgment in the ejectment case goes against the defendant, it conclusively establishes against the person vouched as a warrantor that the title of the defendant has failed, but not the fact that the person vouched was a warrantor of it; the contract must be shown, to prove this. The unconditional transferor of a promissory note bears to the transferee and the cause of action asserted by him against the maker, in a suit on the note, an implied contractual relationship. If the transferor is vouched and a successful defense is asserted, the judgment concludes him from asserting that the defense was not meritorious. Bullock v. Winter, 10 Ga. 214. In a suit brought against him by the transferee for indemnity on account of a failure to collect the note, he might plead that he did not make the transfer or that the defense arose after he made it — in other words might show that it was not a case in which the voucher had a case over against him. If the sheriff is ruled for the misconduct of a deputy, the latter, if vouched, is precluded by a judgment .against the sheriff from asserting that he was not guilty of the misconduct forming the basis of the rule. Holley v. Wallow, 10 Ga. 158. But in a suit against him by the sheriff on that account he may show that he was not a deputy. In tort cases an action over sometimes exists; and then the rule is the same. See W. & A. R. Co. v. Atlanta, supra. The voucher, notwithstanding the judgment in the first suit, still has the burden of showing that the vouchee bears that necessary relationship to him and to the cause of action, as asserted in the original suit, essential to give an action over; and the vouchee may defend by showing anything which will negative the right of an action over. For example, in addition to a plain denial of the relationship he may show that the relationship, if contractual, was forbidden by.law; as in the case of an agreement to indemnify a person in the doing of an act known to Be criminal or contrary to good morals (see Ives v. Jones, 25 N. C. 538, and notes to the same case as published in 41 Am. Dec. 421); or if the asserted relationship arises out of the facts of the ease and not by contract, he may show that in such relationships the law recognizes no action over; as in ease of joint trespassers. See W. & A. R. Co. v. Atlanta, supra. As in other cases of estoppel by judgment, it is sometimes necessary to resort to parol evidence, to determine whether the cause of action on which the recovery was had in the first suit was the same cause of action (if any such at all exists) to which the vouchee was related. For example, a railway company is sued for negligently setting fire to property; the name of the employee by whom the damage' was done is not stated in the petition; the defendant vouches one of its engineers. If the proof in the first case shows that the alleged negligent act was necessarily done by the particular engineer vouched, and not another, a judgment for the plaintiff in that suit establishes, as between the engineer and the company, the fact that he was negligent, and that the negligence caused the injury, and that the damages were the sum.found; and in an action by the company against the engineer for indemnity, this estoppel may be established by parol. If the pleadings and evidence in the first case left it doubtful or issuable as to whether the negligent act upon which the judgment was based was committed by this particular engineer or by another, or by the concurrence of him and another, the judgment would not per se bind him. If the plaintiff’s petition alleged solely an act of negligence of the particular engineer, not concurring with any other alleged negligence of the master or of any other employee, and the case was distinctly and plainly of such a nature that proof on the trial that this particular engineer was not negligent would defeat a recovery, the judgment would preclude inquiry into this question, as between the company and the engineer. The vouchee, not being identified by the pleadings as a party at interest in the first suit, is not to be held so in any subsequent suit in which an attempt to estop him by the. judgment is made, until it aliunde appears that he was in fact a party at interest; but when this fact is established he is bound as far as if he had been named in the pleadings as a party, but no further. In no event is he bound as to matters not necessarily concluded by the judgment in the first suit, as rendered under the pleadings and evidence.

We have discussed this question at some length because it has not been a frequent matter of adjudication in this State, and in no case has 'it been given anything like a full discussion. Applying these principles to the case at bar: If it was a case in which the property owners had an action over against McGilvray and Ogletree, the judgment in favor of the tenants concludes the following facts: that in making the improvements to the building in question, and through the negligent manner in which the work was done, the building collapsed and damaged the tenants in the sum fixed by the verdict, and that the relation between the alleged cause and these damages was such that the recovery was lawful and in all respects proper. It is not disputed that McGilvray and Ogletree were regularly touched. It is not disputed that McGilvray was the contractor by whom the work was actually done and that if in fact the building collapsed through negligence in doing the work, it was necessarily the negligence of McGilvray, and not that of another. If as to this point there had been any dispute, the judgment would not have settled it; but as to this there was no dispute; for, though McGilvray says that he was not negligent, he does not deny that he was the immediate person responsible for the manner in which the work was done; and, therefore, if there was any negligence; it was his negligence. If the verdict of the jury and the consequent judgment in the original suit, under the pleadings in the ease and the actual details and developments of the trial, could in legal contemplation rest on any theory of fact other than that the damages recovered flowed out of the particular act or thing of which McGilvray was the author,— namely, the method in which the work toward the repairing of the building was done, — It would be issuable in the present suit whether McGilvray was negligent, and whether that negligence caused the injury. Under the copies of the pleadings in the former case, the contract between the parties, the admissions of the present pleadings, and the other facts appearing in the record before us, no issue arose as to this question. It was established, therefore, by the judgment in the former suit, and by the evidence aliunde, that the plaintiffs in the present action were compelled by that judgment to pay out the amount thereof on account of the negligent manner in which McGilvray constructed the work, to the damage of the tenants in the building. Following this, the plaintiffs proved express contractual relationship between themselves and the defendants as to this very exigency. McGilvray had contracted, as this court pointed out in this case when it was previously before us (1 Ga. App. 643, 57 S. E. 1058), so to do the work that the tenant might continue business without injury; also to use proper care to do no injury to the stock or to any other thing the tenants might have in the building; also to indemnify the plaintiffs against any damage or loss they might sustain on account of failure in any of these respects; and for all these things Ogletree became his surety, and contracted to pay if he did not. Certainly this made a prima facie case as to every fact essential to a recovery by the plaintiffs; and so far as the record discloses, the defendants neither proved nor offered to prove anything in contradiction to any of these facts; the court therefore did not err in directing a verdict in favor of the plaintiffs, and did err when he set that verdict aside on the motion for a new trial.

Judgment reversed.


source: Caselaw Access Project

author: Hill, C. J.

license: Public Domain

text:
    1076.
    STARR v. SOUTHERN RAILWAY COMPANY.
    Whether the allegations of the petition in this case make the plaintiff a licensee or a trespasser, they are sufficient to withstand a general demurrer; and the conclusion of negligence therefrom and consequent liability is a question of fact for the jury, and not one of law for the court. The judgment sustaining the demurrer and dismissing the petition was erroneous.
    Action for damages, from city court of Floyd county — Judge Hamilton. February 28, 1908.
    Argued May 5,
    Decided June 18, 1908.

      M. B. Eubanks, W. B. Mebane, for plaintiff. George A. H. Harris & Son, Maddox, McCamy & Shumate, for defendant.
   Hill, C. J.

Starr sped the Southern Railway Company for an injury which occurred in the State of Alabama. The court sustained a general demurrer to the petition, and the writ of error challenges the correctness of this judgment. The petition, in brief, makes the following case: The plaintiff was engaged in driving a dray in the town of Gadsden, Ala. His family lived at Cedar Bluff, some fifteen miles from Gadsden. On every Saturday afternoon his son, who was a brakeman on a freight train of the defendant, would bring his clean clothes to him from his home at Cedar Bluff, and take his soiled clothes back to his home on Monday morning. The plaintiff would meet the trains on Saturday afternoons at Gadsden and get his clothes from the brakeman. This was not an occasional happening, but was uninterrupted and continuous for eighteen months; and he did this with the consent and at the invitation of the brakeman, and this habit was well known to the defendant, or could have been known by the exercise of any care. On the day the plaintiff was injured he started to get up on the freight train of the defendant company, to get his clothes from the brakeman as usual, and, just as he mounted the car to get up on it, the train suddenly pulled off. At the time he began to mount the car, it was forty feet from a box-car on a side-track, which had been left within four inches of the cars on the main line, and, before he got to the top of the car, his body came in contact with the box-car on the side-track, and his arm was mashed off and his leg broken. He did not know of the car standing on the side-track, until after his injury. The engineer and the fireman had just passed with their engine by the car on the side-track, and knew that this car was too near the main line. The brakeman on the train saw the plaintiff getting on the car, saw that the car on the side-track was dangerously near the main line, knew that the plaintiff did not see the ear, and knew that he would be hurt. The brakeman immediately gave to the fireman, who was at his post of duty on his engine, a danger and distress signal, and, with a motion of his hand, signaled the fireman to stop the train immediately; but the fireman did not tell the engineer promptly of the signals, as he should have done, nor did he make them known to the engineer at all, until after the plaintiff was hurt, or, if he did signal the engineer, the engineer failed to obey the signal and did not stop the train. When the brakeman became aware of the plaintiff’s danger, the train was running very slow, to wit, five miles per hour, and if the fireman had heeded the signals as they wore given him, and had reported them promptly to the engineer, the train could and would have been stopped immediately. Negligence is alleged, in leaving the car on the side-track within four inches of the cars on the main line; in the engineer and fireman in not keeping a lookout for the plaintiff on Saturday afternoon; in the fireman in not immediately making known to the engineer the danger and distress signal and the signal to stop immediately, which he had received from the brakeman; in the engineer in not heeding the signals given to him by the fireman; and in the engineer and the fireman in not stopping the train immediately after the danger to the plaintiff had become known to the brakeman.

Whether the allegations of the petition make the plaintiff a licensee or a trespasser, they sufficiently show a cause of action to withstand a general demurrer. The distinction between a licensee and a trespasser, and the correlative liability of the railroad company, is so clearly and fully drawn by this court in the case of Mandeville Mills v. Dale, 2 Ga. App. 607 (58 S. E. 1060), and citations therein, that nothing can be added on the subject. Conceding the contention of the defendant in error, that the plaintiff was only a trespasser, and that his perilous situation was brought about by his own negligence, yet, according to the allegations of the petition, his presence and perilous position were known to the employees of the railroad company in charge of the train, in time to stop the train without hurting him; and it was therefore a question for the jury to determine if the injury to him could not have been avoided by the use of due care on the part of such employees. The allegations are distinct, that the perilous position of the plaintiff was seen by the brakeman, who immediately gave a distress signal to the fireman to stop the train; that the fireman received this signal, and either failed to give it to the engineer, or, if he did give it, the engineer faffed to obey it. There was no objection made to the form of these allegations, and, if proved as laid, the company might he liable; at least, the conclusion of negligence from these facts was for the jury, and not for the court, though, before a recovery would be warranted, the facts should, show that the injury to the plaintiff was wilful or wanton. We therefore think there was error in sustaining the demurrer and dismissing the petition. Charleston Railway Co. v. Johnson, 1 Ga. App. 441 (57 S. E. 1064); Atlanta Ry. & Power Co. v. Walker, 112 Ga. 725 (38 S. E. 107); Kendrick v. Seaboard Air-Line Ry., 121 Ga. 775 (49 S. E. 762); Southern Ry. Co. v. Chatman, 124 Ga. 1026 (53 S. E. 692, 6 L. R. A. (N. S.) 283). Judgment reversed.


text:
    1079.
    DOBBINS v. SHY.
    In a suit on a promissory note, where a plea of recoupment is filed, it is error to refuse to allow the defendant, pending the trial of the case, to withdraw the plea.
    Complaint, from city court of Athens — Judge Cobb. January 14, 1908.
    Submitted May 5,
    Decided June 18, 1908.

      W. M. Smith, H. C. Tuck, for plaintiff in error.

      T. S. Mell, contra.
   Hill, C. J.

Shy brought suit on a promissory note, against Dobbins, in the city court of Athens. The defendant admitted the execution of the note sued on, and that the plaintiff was the owner and holder thereof, hut pleaded recoupment. On the trial of the case the defendant moved the court to be allowed to withdraw his plea, and .the court refused the request, and an exception pendente lite was allowed. The jury returned a verdict for the plaintiff, and the defendant’s motion for a new trial was overruled.

The only question made in the ease is the alleged error in the refusal of the court to allow the defendant to withdraw the plea. Section 4970 of the Civil Code allows the petitioner to dismiss the petition at any time, either in term or vacation, so that he does not thereby prejudice any right of the defendant; and the same right is allowed to defendants, as to pleas. A plea of recoupment is in the nature of a cross action, and we think the defendant can, as matter of right, withdraw it at any time before the publication of the verdict. In Bailey v. Wilner, 107 Ga. 366 (33 S. E. 434), the Supreme Court says, “Furthermore, it would have been an easy matter for the defendant to have withdrawn her answer if, in her opinion, so doing would have been of any advantage to her.” So far as the record discloses, we can imagine no legal reason why the court refused to allow the defendant to withdraw the plea, and we therefore affirm the judgment, with direction that an order be entered nunc pro tunc allowing the plea to be withdrawn.

Judgment affirmed, with direction.


text:
    1088.
    Adams v. Nashville, Chattanooga & St. Louis Railway Co.
    Action for damages, from city court of Floyd county — Judge Hamilton. March 16, 1908.
    Submitted May 6,
    Decided June 18, 1908.

      M. B. Eubanks, W. B. Mebane, for plaintiff.

      Dean & Dean, for defendant.
   Hill, C. J.

The facts of this ease are identical with those in Nix v. Southern Railway Company, ante, 331 (61 S. E. 292), and this case is therefore controlled by the decision in that ease.

Judgment affirmed.


author: Powell, J.

text:
    1109.
    Wheeler v. Albany & Northern Railway Co.
   Powell, J.

In an action against a railway company for negligently communicating fire through sparks from a passing engine to adjacent property, the defendant admitted that the fire was communicated by the engine named, but offered proof that the engine was equipped with a first-class standard spark-arrester; also the’ testimony of the engineer that at the time in question it was being operated in the usual and ordinary manner, and that no more sparks were emitted than were necessary in the running of the train; the plaintiff submitted proof that this same engine also communicated two other fires, to adjacent property, on the same day, and that as it passed the plaintiff’s premises it was “puffing and blowing” more than usual: Held, that while the plaintiff’s case was very weak, nevertheless, under the testimony, .the facts proved and the inferences to be drawn therefrom were not so entirely free from issue as to justify the court in directing a verdict for the defendant. Judgment reversed.

Action for damages, from city court of Cordele — Judge Henderson presiding. March. 12, 1908.

Argued June 10,

Decided June 18, 1908.

Crum & Jones, for plaintiff.

J. T. Hill, Maynard & Hooper, for defendant.


author: Russell, J.

text:
    1115.
    KITCHENS v. THE STATE.
    Where it appears that a plaintiff in error who has been convicted in a criminal case (and upon whom an alternative sentence, permitting the-payment of a fine, has been imposed) has voluntarily complied with the sentence of the court, by payment of the fine, this court will not review the judgment of conviction. The court will not consider the record in any ease where it is shown that the parties have settled their controversy or that the judgment has been satisfied. In such a ease the writ of error will be dismissed.
    Practice. Motion to dismiss the writ of error.
    Submitted May 5,
    Decided June 18, 1908.

      R. L. Tipton, for plaintiff in error.

      J. A. Comer, solicitor, Crum & Jones, contra.
   Russell, J.

The plaintiff in error filed a .hill of exceptions assigning error on the dismissal of his motion for new trial. Counsel for the defendant in error moved to dismiss the exceptions, upon the ground that the plaintiff in error had voluntarily and without protest paid the fine imposed by the court as an alternative to the term which he had been sentenced to serve in the-chain-gang upon the public works, and had also paid costs in the court below. The ground of the motion to dismiss the writ is properly verified, and the fact that the sentence of the lower court has been complied with is undisputed. As “courts do not settle moot questions^ or deal with fictitious litigation, nor proceed to judgment where.it is shown that the parties have settled their controversy or that the judgment has been satisfied,” the writ of error will be dismissed. Upon this subject see White v. Tifton, 1 Ga. App. 569 (57 S. E. 1038), in which we held that “a defendant who has paid a fine imposed by a police court, with the alternative of imprisonment, can not, after paying such fine, prosecute a writ of error to review the judgment, unless the fine was paid under protest and under duress.” See also Brown v. Atlanta, 123 Ga. 497 (51 S. E. 507). The rule is the same in criminal as in civil cases. It has uniformly been held in this State that the appellate court will not investigate and decide the abstract questions involved in-a case where the substance of the controversy has been withdrawn. Sutcliffe v. McSweeney, 102 Ga. 897 (30 S. E. 268); Henderson v. Hoppe, 103 Ga. 684 (30 S. E. 653); Atlanta & Fla. Ry. Co. v. Blanton, 80 Ga. 563 (6 S. E. 584); Thornton v. Manchester Investment Co., 97 Ga. 342 (22 S. E. 987); Cranston v. Bank of the State of Ga., 97 Ga. 406 (23 S. E. 822); Gallaher v. Schneider, 110 Ga. 322 (35 S. E. 321); Tuells v. Torras, 113 Ga. 691 (39 S. E. 455) ; Owens v. Read Phosphate Co., 115 Ga. 768 (42 S. E. 762); Randolph v. Brunswick Ry. Co., 120 Ga. 969 (48 S. E. 396).

Let the writ of error be dismissed.


text:
    1120.
    Thornton v. The State.
    Conviction of manslaughter, from Bibb superior court — Judge Felton. March 28, 1908.
    Submitted May 5,
    Decided June 18, 1908.

      John R. Cooper, for plaintiff in error, William Brunson, solicitor-general, contra.
   Hill, C. J.

No error of law appears, and the verdict is fully warranted by the evidence. Judgment affirmed.


text:
    1124.
    DAVIS v. THE STATE.
    1. The first clause of § 989 of the Penal Code, which is in the following . language: “When a party has evidence in his power and within his reach, by which he may repel a claim or charge against him, and omits to produce if. . . a presumption arises that the charge or claim is well founded.” is, in criminal eases where the accused relies solely upon his statement, applicable only when the statement discloses the existence of evidence which is accessible to the accused and not accessible to the State, or of such as it would be unreasonable for the State to use, on account of special relationship. The second clause of the section, which is as follows: “or, having more certain and satisfactory evidence in his power, relies upon that which is of a weaker and inferior nature, a presumption arises that the charge or claim is well founded,” is not applicable in a criminal case where the accused introduces no-evidence, but relies solely upon his own statement.
    2. It was harmful error to give the entire section in charge where the party whose testimony may have been beneficial to the accused was present in the court-room during the trial and was equally “within the reach” of the State as “within the reach” of the accused, and where the latter introduced no evidence, but relied solely upon his own statement.
    Accusation of assault and battery, from city, court of Asbburn— Judge Hawkins. April 4, 1908.
    Submitted May 5,
    Decided June 18, 1908.

      R. L. Tipton, for plaintiff in error.

      J. A. Comer, solicitor, contra.
   Hill, C. J.

Ed Davis was convicted in the city court of Asbburn of an assault and battery. On the day the offense was committed the accused was employed at a planing mill, and had several boys, the party assaulted being among the number, working under him. While he was at work a block of wood fell against the side of his head, and he was told by one of the other boys that the prosecutor had thrown it at him. The prosecutor denied that he threw the block of wood, but stated that it got hung in the saw and fell down and suddenly hit the defendant. When told that the prosecutor had thrown the block which hit him, the defendant immediately took up a lath and struck the prosecutor several times with it on the shoulder and back. The assault and battery seems to have been, even according to the testimony of the prosecutor, very slight. The defendant introduced no testimony, but relied upon his statement to the jury, giving an account of the transaction. In this statement he claimed, that he was struck on the head with the block of wood, and that another negro boy told him that the prosecutor had hit him, and that for this reason he took up the lath and struck the prosecutor several blows. The negro boy who informed him that the prosecutor had hit him with the block of wood was in the court-room during the trial, but was not introduced as a witness. He was, however, equally accessible to both sides. The jury found the defendant guilty, but recommended clemency in the sentence. The defendant made a motion for a new trial, which was overruled, and the case came to this court.

The general grounds may be disposed of by the statement that the jury passed upon the defense of justification of the assault, and probabfy gave it due weight. Three special grounds of error are assigned. Two of them we do not consider it necessary to decide, as the alleged errors probably will not occur on a second trial. The other assignment of error, we think, is well taken. As before stated, the defendant relied entirely upon his own statement. He did not introduce the negro boy who told him that the prosecutor struck him with the block of wood. The failure of the defendant to introduce this witness, whose statement he had relied upon as a justification for the assault and battery, probably led the court to give in charge §989 of the Penal Code, which is in the following language: “When a party has evidence in his power and within his reach, by which he may repel a charge or claim against him, and omits to produce it, or, having more certain and satisfactory evidence in his power, relies upon that which is of a weaker and inferior nature, a presumption arises that the charge or claim is well founded; but this presumption may be rebutted.” It is insisted, that this instruction was erroneous because not appropriate to the case; that it was likely to confuse the minds of the jury; that the latter part of the instruction conveyed an intimation by the court that the statement of the defendant was of a weaker and inferior nature as evidence; and that, as the defendant relied upon his statement alone, the jury may have thought that a presumption was thereby raised against the defendant. This section of the code is codified from the common law. Mr. Starkie, in his work on Evidence, 846, says: “If, on the supposition that a charge or claim is unfounded, the party against whom it is made has evidence within his reach by which he may repel that which is offered to his prejudice, the omission to do so supplies a strong-presumption that the charge or claim is well founded; it would be contrary to every principle of reason, and to all experience of human conduct, to form any other conclusion.” This presumption arises in two events: first, when the party has evidence in his power and within his reach with which he may repel the claim or charge against him, and omits to produce it. Where the evidence is equally accessible to both parties, we do not think this presumption would arise. The witness in this case was present in the court-room; his name was given by the defendant, and he was as accessible to the ■State as to the accused, and under these circumstances the mere failure by the defendant to introduce him did not give rise to any presumption that his testimony would have been unfavorable to him. This presumption arises in the second place when the party, having more certain and satisfactory evidence in his power, relies upon that which is of a weaker and inferior nature. This part of the section was certainly not pertinent, because the defendant did not introduce any testimony at all. He relied upon his statement of the occurrence; and this he had a legal right to do. The presumption is applicable to the- comparative weight of evidence. It has no reference to evidence as compared to the unsworn statement of the defendant; and certainly the court could not properly intimate to the jury that the statement of the defendant was inferior to and weaker than the evidence; for the jury may, in its discretion, believe the statement in preference to the sworn testimony of the witnesses. Penal Code, §1010. We think this instruction was not only inapt and not pertinent to the case, but was calculated to mislead the jury, to the prejudice of the defendant.

The principle embraced in §989 of the Political Code is of doubtful application in criminal cases where the defendant fails to introduce any testimony, but relies solely upon his statement. If applicable at all in such cases, it is only where the statement of the accused discloses the existence of testimony accessible to him, and not accessible to the State, or of such as it would be unreasonable for the State to use, on account of special relationship, by which he may repel the charge against him. The latter clause can not be applicable at all where the accused introduces no testimony. The adverse presumption arises under this part of the section where the accused “relies upon evidence of a weaker and inferior nature, having more certain and satisfactory evidence in his power,” which is not within the reach of the State.

Judgment reversed.


text:
    1131.
    STRICKLAND v. THE STATE.
    1. In the absence of a request in writing, the trial judge is not required to instruct the jury upon the subject of the impeachment of witnesses. And it is not error to disregard an oral request, preferred by counsel, that the jury be charged upon that subject.
    2. The evidence authorized a conviction of the defendant, and it was not error to refuse a new trial.
    Indictment for gaming, from Fayette superior court — Judge Beagan. March 18, 1908.
    Submitted June 9,
    Decided June 18, 1908.

      J. W. Shell, J. W. Wise, for plaintiff in error.

      O. H. B. Bloodworth, solicitor-general, B. L. Tisinger, contra.
   Russell, J.

The only question raised by the motion for new trial (except the general grounds) is that “the court erred in failing to charge the jury on the law of impeachment, after the same had been requested by the defendant, though not in writing.”' Nothing is better settled than that it is not error for the court, in the absence of a request to instruct the jury upon the law in reference to the impeachment of witnesses, to omit all reference to the subject. And it has been held more than once by this court that requests to charge, upon the refusal of which error may be predicated, are confined to requests in writing. Error can not be assigned upon the refusal to give a request which is presented orally.

In this case the State introduced only one witness. Ibis-testimony established every element of the defendant’s guilt. As the jury are the sole judges of the credibility of the witness, it is not for us to say that the verdict of guilty is unauthorized, though he may appear to have been overwhelmingly impeached. We have no jurisdiction to so declare. And for the same reason the judge did not err in refusing to set aside the verdict of the jury. It is true, the defendant introduced witnesses who testified that there was no gambling at the time and place to which the State’s witness had testified, and twelve witnesses swore that the character of the State’s only witness was so bad that they would not believe him upon his oath. But the jury could believe the testimony of the State’s witness if they saw fit, in spite of the attempted impeachment. In fact, it is possible to be convinced that a witness who ordinarily, on account of his notoriously disreputable character, might not be believed is in the particular case stating the truth of the transaction under investigation. The jury in this ease saw and heard the witness for the State, and, though they may have believed that the witnesses who testified that they would not believe him on oath were sincere in that opinion and entitled to- the highest credit, and though they may have been satisfied by the ’testimony of these witnesses that the character of the State’s only witness was generally bad, we can not say, nor was the trial judge compelled to hold, that the witness swore falsely when he testified to a state of facts which, if true, proved the guilt of the defendant beyond any doubt whatever. Judgment affirmed.


text:
    1132.
    Jordan v. The State.
    Accusation of gaming, from city court of Sparta — Judge Little. April 16, 1908.
    Submitted June 9,
    Decided June 18, 1908.

      R. H. Lewis, for plaintiff in error.

      R. W. Moore, solicitor, contra.
   Powell, J.

The evidence against the defendant is meagre, but not so wholly deficient as to warrant this court in interfering with the verdict, on that ground. Judgment affirmed.


text:
    1133.
    Askew v. The State.
    Indictment for furnishing liquor to minor, from Fayette superior court — Judge Reagan. April 8, 1908.
   Hill, C. J.

1. Where the accused is charged with a violation of section 444 of the Penal Code, the intoxicating character of the liquor furnished to the minor, although called “grape juice” by the accused, is sufficiently shown by the testimony of the minor, that “he drank two quarts of the stuff, and it made him drunk.”

2. Whether one charged with furnishing spirituous and intoxicating liquors to a named minor exercised due diligence to find out the age of the minor, before furnishing him the liquor, and was honestly mistaken, is to be determined by the jury. Stern v. State, 53 Ga. 229 (21 Am. R. 266).

3. The evidence in support of the verdict is weak, but the jury and the trial judge thought it sufficient, and this court can not interfere.

Judgment affirmed.

Argued June 9,

Decided June 18, 1908.

Blalock & Culpepper, for plaintiff in error.

O. H. B. Bloodworth, solicitor-general, O. H. B. Bloodworth Jr., contra.


text:
    1137.
    FOLEY & WILLIAMS MANUFACTURING COMPANY v. BELL & HARRELL.
    1. A bond purporting to have been executed by a corporation through an agent or officer thereof, and bearing either the common corporate seal or a scroll or similar device for the nonce, adopted in substitution for the regular seal, will, in the absence of proof to the contrary, be presumed to be the corporate act and deed; and a certiorari bond so executed is valid.

      (a) Corporate existence is connoted by the corporate name Foley & Williams Manufacturing Company.
    (b) The attorney at law of a plaintiff in certiorari has adequate statutory authority to execute the usual certiorari bond in behalf of his client.
    2. Where the only surety on a certiorari bond purports to be a corporation, and its signature thereto, although accompanied by an impression of the corporate seal, does not appear to have been affixed by an officer or a general agent, or an agent specially authorized to act in the particular ease, but purports to have been made by an attorney in fact, the bond is not sufficient, unless it is accompanied by the power of attorney through authority of which it has been executed; and it is then not sufficient unless the power of attorney expressly or by reasonable implication authorizes, either generally or specially, the designated attorney in fact to execute such a bond in its behalf as surety.
    Certiorari, from Grady superior court — Judge Spence. March 3, 1908.
    Submitted June 12,
    Decided June 18, 1908.

      J. E. Ricketson, for plaintiff.

      Ledford & Terrell, for defendants.
   Powell, J.

The plaintiffs in error were the plaintiffs in a certiorari. The certiorari bond was signed: “Foley & Williams Mfg. Co. (L.S.), per S. A. Eibola, Treasurer; also by its attorneys at law, Bicketson & Hale (L.S.), United States Fidelity & Guaranty Co. (L.S.), by its' attorney in fact, T. H. Parker, (L.S.) f and the corporate seal of the guaranty company was attached. In the superior court a motion to dismiss the certiorari, for lack of a sufficient bond, was sustained; and the plaintiffs in certiorari bring error.

The defendant in error seeks to sustain the judgment on two grounds: (1) that the execution of the bond by the principal does not appear, and (2) that the jiower of attorney in fact to sign for the surety does not appear in the record. The first point is not well taken. Corporate existence is connoted by the corporate name, "Foley & Williams Mfg. Co.” Ayer v. State, 2 Ga. App. 158 (58 S. E. 374), and cases cited.

A bond purporting to have been executed by a corporate agent or officer, and bearing either the common seal of the corporation or a scroll or similar device for the nonce adopted in substitution for the common seal, will, in the absence of proof to the contrary, be presumed to be the corporate act and deed; and a certiorari bond so executed is prima facie valid. New York Life Ins. Co. v. Rhodes, ante, 25 (60 S. E. 828); Solomon’s Lodge v. Montmollin, 58 Ga. 547. See also American Investment Co. v. Cable Co., ante, 106 (60 S. E. 1037). Further, by statute the attorney at law of a plaintiff in certiorari has ample authority to execute the bond in behalf of his client. Civil Code, §4637.

We think the point as to the signature of the surety in. this ease is well taken. It is accompanied by the corporate seal, but purports to have been signed, not by an officer of the corporation, but by an attorney in fact. In the case of New York Life Ins. Co. v. Rhodes, supra, Judge Russell, speaking for the court, as to the execution of a certiorari bond in behalf of a corporation, said: "Where an agent has signed with a seal, the courts are to presume that he did not exceed his authority. The seal itself, prima facie, imports proper authority.” Also, “either a general agent or a special agent can execute a certiorari bond. . . Where the bond appears under seal, authority to execute it will be presumed.” A careful reading of the whole opinion in that case, and the decisions on which it is based, will show, however, that it was not intended to overturn the principle, announced by the Sureme Court in the case of Southern Express Co. v. Wheeler, 72 Ga. 210, that a certiorari bond signed by one as an attorney in fact should he accompanied by the power of attorney. See Am. Inv. Co. v. Cable Co., supra. The person signing as attorney in fact does not purport to be a general agent of the corporation, nor yet a special agent for the purpose of doing the particular act of signing the bond; per contra, the designation “attorney in fact” primarily denotes that all the authority the person so signing possesses is contained in a. written power of attorney. While the corporate seal affixed fo the signature.may give prima facie authenticity to the fact that the signer holds a power of attorney of some sort from the corporation, yet that writing is itself the highest evidence of its contents and of the scope and limitations of the powers contained in it. It is for the court to say, upon an inspection of the writing, and not for the attorney in fact to say, from his opinion of it, whether it gives the power to execute the bond or not. Since the signature of the surety corporation, though accompanied by the common seal, is not also accompanied by, the signature of any one purporting to be an officer of the corporation, or a general agent, or an agent specially authorized for the particular purpose, the court did not err in dismissing the certiorari, for lack of a proper bond. Judgment affirmed.


text:
    1143.
    SANFORD v. THE STATE.
    The scienter is an indispensable essential of the offense of receiving stolen goods, and conviction of this offense is not authorized except where the guilty knowledge of the accused is established beyond a reasonable doubt. The presumption of guilt, arising from the recent possession of stolen goods, was rebutted by the State’s own evidence; and for this reason the State failed to establish the defendant’s guilt.
    Accusation of receiving stolen goods, from city court of Macon —Judge Hodges. March 14, 1908.
    Submitted June 9,
    Decided June 18, 1908.

      Nottingham & McClellan, for plaintiff in error.

      William Brunson, solicitor-general, contra.
   Russell, J.

The plaintiff in error was convicted of receiving-stolen goods; the property alleged to have been stolen being certain cutlery, taken from the Southern Bailway Company. The evidence disclosed that the principal thieves and this defendant were eoemployees of that company. The former were truckmen, while he was employed to help unload freight inside of freight-cars, and to place upon trucks the freight thus being unloaded. After the trucks were thus loaded the truckmen conveyed the freight into the depot. Shortly after the theft the plaintiff in error was found in possession of one of the stolen knives; and it was proved, that he received it from one of the principal thieves; but, as there was no evidence that he knew that the knife had been stolen, the verdict of guilty, in our opinion, was unauthorized. It is insisted that the circumstance that the knife was marked with the name of a mercantile firm in another city was sufficient to bring home to him knowledge of the fact that the knife had been stolen. To us this circumstance seems utterly inconclusive, or, to say the least of it, it is a circumstance as consistent with innocence as guilt. The scienter is an essential of the offense of receiving stolen goods, and must be not only alleged, but proved. The receiving of stolen goods, without knowledge that they are stolen, or any reasonable ground to suspect that they are stolen, is no offense in law; the receiving of stolen goods with knowledge that the property in question is the fruit of a larceny renders the recipient as guilty as the thief. In every case, therefore, of receiving stolen goods it is indispensable that the guilty knowledge of the accused be shown beyond a reasonable doubt. We are of the opinion that it does not so appear in this ease. The testimony of the State’s own witness is positive that the plaintiff in error knew nothing of the theft, at the time that he accepted, as a gift, the knife afterwards found in his possession. Tlie evidence of guilty knowledge being insufficient to authorize the conviction, the court erred in refusing a new trial. Judgment reversed.


text:
    1144.
    Murray v. The State.
    Accusation of receiving stolen goods, from city court of Macon— Judge Hodges. March 14, 1908.
    Submitted June 9,
    Decided June 18, 1908.

      Nottingham & McClellan, for plaintiff in error.

      William Brunson, solicitor-general, contra.
   Powell, J.

In a prosecution for receiving stolen goods, proof of guilty knowledge on the part of the defendant in receiving the goods is an essential to a lawful conviction. There is a fatal lack of proof of the scienter in the present case. See Sanford v. State, ante, 449.

Judgment reversed.


text:
    1167.
    HUTCHINGS v. THE STATE.
    The evidence authorized the verdict, and it was not error to overrule the motion for new trial.
    Indictment for larceny from house, from Polk superior court— Judge Edwards. April 15, 1908.
    Submitted June 9,
    Decided June 18, 1908.

      Janes & Hutchens, J. A. Wright, for plaintiff in error.

      W. K. Fielder, solicitor-general, contra.
   Russell, J.

This case has been to this court before, and may be found reported in 3 Ga. App. 299 (59 S. E. 848). On the second trial, which is now the subject-matter of review, the plaintiff in error was convicted of larceny from the house; and he excepts to the judgment overruling his. motion for new trial. The evidence adduced upon the trial was sufficient to authorize the conviction. According to the testimony in behalf of the State, the defendant was seen at a late hour in the night in the barnyard of the prosecutor and near his corn-crib, in which was a quantity of corn in the ear and shelled corn. When the defendant discovered that his presence was observed he ran. He had a sack or bag upon his shoulder, and, as he ran; the contents of the sack rattled like shelled corn would rattle under such circumstances. In running the defendant encountered a barbed-wire fence, and in getting out of the barn-yard he left on the wire fence pieces of his pants and shirt. The prosecutor had for some time been missing corn from the crib, and some of his family and friends were engaged, on the night in question, in endeavoring to ascertain who was the thief. Some of the witnesses were near the defendant’s house and had ascertained that he was not at home, and when he went to his house they followed him, and upon getting him to come out they discovered that his pants and shirt were torn, as if by a wire fence, and later the pieces of cloth taken from the fence were found to fit and correspond exactly with the rents in his garments. Near the barn a sack of corn was discovered, which a witness said was dropped by the defendant as he ran away that night. And about a week later a sack of corn in the ear was discovered in some weeds in the barn-yard, where it had evidently been for some days, because its condition gave evidence of the fact that it had been Tained upon, and the grains of corn had begun to swell.

Counsel for the plaintiff in error insist that the evidence is insufficient to prove the larceny, because the barn was fastened in the same way it had been left by the prosecutor when he last entered the corn-crib, and because the evidence does not show that the prosecutor missed any corn or that any was taken from the barn. It is insisted that the defendant should not have been convicted of larceny from the house, for the reason that the testimony does not show that the defendant ever entered the barn. In the absence of any evidence that the barn was fastened in any extraordinary way, we can not attach any importance to the fact that it appeared that the door and its fastenings were in the same condition after the supposed larceny that they were before. If the door was secured by a bar from the outside, or a bolt, or a button, and corn was really taken from the house, nothing would be easier or more natural than for the thief to fasten the door just as he found it and as it was ordinarily secured. The prosecutor says that he missed corn that night and had been missing it for some time, and he further testified that he had stacked quite a quantity of oats the evening before in the barn. He testified that when he entered the barn after the supposed larceny, these oats had been knocked down and thrown into disorder. Under the testimony of the prosecutor, there is evidence, both direct and circumstantial', that corn was taken from his barn, and circumstantial evidence that some one entered his barn. We quite agree with the learned counsel for the plaintiff in error that it is incumbent upon the State to show that the property alleged to have been stolen was in fact stolen, — in other words, it is essential that the corpus delicti be established. But we think that the circumstances were' sufficient to satisfy the jury (to the exclusion of any other reasonable supposition) that corn was stolen from the barn. The jury had to settle, by the testimony in the ease, the question as to whether it was the same corn as that alleged in the indictment. We think that the jury were fully authorized by the circumstances detailed by the witnesses, to find that the sack dropped by the defendant was a sack of corn, and as the corn in the sack and the corn in the crib were testified to be of the- same quality and identical in appearance, and it does not appear from the evidence that the defendant had any reason either for being in prosecutor’s horse lot or at his barn, or why he should have been in possession of any corn at that hour in the night or at that particular place— the conclusion is irresistible that the defendant is guilty as charged.

The corpus delicti can be proved by circumstantial as well as by direct proof. One accused of crime should never be convicted upon mere suspicion; and where circumstantial evidence alone is relied upon, the evidence must be so strong as to remove every other reasonable hypothesis than that of the defendant’s guilt. Yet when circumstances are sufficiently proved, which point so strongly to a defendant’s guilt .as to demand an explanation and which are not explained (though they could be explained if the defendant were innocent), we will not say that a jury is not authorized to convict.

The cases cited by counsel for plaintiff in error to sustain his contention that the corpus delicti was not established in this mase are not in point. In Wiley v. State, 74 Ga. 840, the defendant was charged with stealing one kind of hog, and the prosecutor testified to the loss of a hog with different marks from the one which the defendant was accused of stealing. The conviction was set aside in Middleton v. State, 53 Ga. 248, because the cotton alleged in the indictment to have been in a certain warehouse was proved to have been outside of the house, and consequently a conviction of larceny from the house was unwarranted.

In Hand v. State, 110 Ga. 257 (34 S. E. 286), the case of larceny from the house failed because there was no evidence that the gold bullion had ever been kept in the test-house mentioned in the indictment, and no evidence that the company had lost any gold bullion.

As we have stated above, the prosecutor in the present case testified positively that he had missed corn from the particular corn-crib on the occasion of which he was testifying.

Judgment affirmed.


text:
    1174.
    HOLSEY v. THE STATE.
    Although, under the Penal Code, § 225, “If any person shall wilfully ride or drive any horse or mule belonging' to another, without his consent, he shall be guilty of a misdemeanor,” nevertheless, if, after having so ridden or driven the animal and after discovering that the owner of it has made objection, the defendant offers to settle the matter by paying in full for the animal, and agrees with the owner on the price and terms, and a sale of the animal is thus effected, the transaction will so relate back as to give ratification of the owner to the driving of the animal-, and thereby rob the offense of one of the essential elements, namely, the lack of the consent of the owner.
    Accusation of misdemeanor, from city court of Moultrie — Judge McKenzie. April 22, 1908.
    Submitted June 9,
    Decided June 18, 1908.

      Alfred R. Kline, L. L. Moore, George R. Kline, for plaintiff in error.
   Powell, J.

The defendant, who did odd jobs around a livery stable, drove one of the horses on a certain Sunday without the consent of the proprietor. On the next day, when the proprietor discovered this fact, he gave the defendant the choice of taking a whipping or paying for the horse; the defendant chose the latter horn of the dilemma and bought the horse on satisfactory terms. Afterwards this prosecution was instituted and the defendant was convicted.

The old and well-recognized rule is that where one person interferes with the property of another and converts it to his own use, the latter, upon discovery of the fact, may elect to reclaim the property, treating the taking as wrongful, or he may waive the wrongful character of the taking and treat the matter as a purchase of the property by the taker, and sue him for the price. In the latter event the law looks upon the transaction just as if it were originally a regular sale between the parties. In the case at bar, when the owner of the animal discovered that it had been used, — that is to say, that the defendant had made a wrongful interference with it, and then took pay for the entire value of the animal, neither law nor justice should give the transaction any other interpretation than that it was the intention of the owner of the animal to acquiesce in the defendant’s act of using it on the day before. Indeed, we think it may be said, as a general rule, that in no event will a prosecution under section 225 of the Penal Code lie, where, before the institution of the prosecution, the owner of the animal, either for or without a consideration, has given acquiescence, or, so to speak, ex post facto consent to the previously unauthorized use of his property. This ruling is to be taken, however, with the understanding that the principle is applicable only in that class of eases where the offense involves no crime against society or good morals, but relates solely to the redressing of private-property wrongs. Of course the ex post facto consent of the owner could not render a larceny, with all its elements complete, any the less a crime; but as to the offenses of the nature involved in §225 of the Penal. Code there is a different principle.

Judgment reversed.


text:
    1176.
    Glover v. The State.
    Accusation, of unlawful sale of liquor, from city court of Nashville — Judge Peeples. May 4, 1908.
    Submitted June 9,
    Decided June 18, 1908.

      W. R. Smith, for plaintiff in error.
   Russell, J.

1. The general prohibition law of 1907 (Acts of 1907, p. 81) repeals all existing laws allowing the sale .of intoxicating liquors in this State, the repeal taking effect from and after January 1, 1908. Consequently one who on January 7, 1908, may have sold intoxicating liquors can not be legally convicted under an accusation charging the statutory" offense of retailing without a license, in a county in which prior to January 1, 1908, whisky and other intoxicating liquors might legally have been sold upon obtaining a license. Patton v. State, 80 Ga. 714 (6 S. E. 273); Parker v. State, 126 Ga. 443 (55 S. E. 329). Such conviction or acquittal (inasmuch as the offense of retailing without license and that of selling in violation of the prohibition law are distinct) would not operate as a bar to a future prosecution for a violation of the general prohibition law.

2. While evidence obtained by illegal seizure and search of a defendant’s person which compels him to incriminate himself is inadmissible against him, this rule is applicable only to searches of a defendant’s person after an unlawful seizure thereof. The distinction between the search of one’s person, by which he is compelled to incriminate himself, and the search of one’s property or premises, whereby incriminating testimony against a defendant is obtained by another, is pointed out in Hughes v. State, 2 Ga. App. 29 (58 S. E. 390).

3. Evidence of guilt, which a defendant, either directly or indirectly, is compelled to disclose, by an illegal seizure and search of his person under an unlawful arrest, is not admissible against him, but if his premises or belongings are searched by another, although without a vestige of authority, the evidence thus disclosed may be used against him. The criterion is, who furnished or produced the evidence? Duren v. Thomasville, 125 Ga. 1 (53 S. E. 814) ; Dozier v. State, 107 Ga. 710 (33 S. E. 418). Judgment reversed.


text:
    1179.
    CROY v. THE STATE.
    While evidence which a defendant has been compelled involuntarily to disclose, through the coercion of a search of his person by an officer pending an illegal arrest, is.not admissible against him, it is no violation of this principle to receive testimony of witnesses that the defendant, intentionally or through accident or inadvertence, exposed to view a pistol previously concealed, while resisting an arrest, legal or illegal, or while such arrest and consequent detention were pending or in progress.
    Accusation of carrying concealed weapon, from city court of Dalton — -Judge Longley. April 11, 1908.
    Submitted June 9,
    Decided June 18, 1908.

      George G. Glenn, for plaintiff in error.

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

An officer was attempting to arrest certain kinsmen of the defendant. It is claimed that under the circumstances this arrest was illegal; but in the light of what we are about to say, inquiry into this is wholly immaterial. The defendant interfered, - and the officer attempted to take him also. He threw his hand back as if to draw a weapon, and disclosed a pistol in his pocket. A scuffle between him and the officer followed; and in this scuffle the pistol was again diáclosed to view as the defendant fell upon the ground. The officer thus seeing it took it from his pocket. Upon the trial of the defendant for carrying the weapon concealed, the officer and another witness were allowed to testify to these facts, over the defendant’s objection that he was thus compelled to incriminate himself.

This court is thoroughly committed to the proposition announced in Hammock v. State, 1 Ga. App. 126 (58 S. E. 66); Sherman v. State, 2 Ga. App. 29 (58 S. E. 390), and several other cases, that when by an unlawful search and seizure under an illegal arrest, a person is compelled by an officer to furnish incriminating evidence against himself, such evidence is not admissible against him in a criminal prosecution; but we have never held, nor do we see anj lawful basis for holding, that evidence indicating a defendant’s guilt is not admissible against him simply because he may happen to have been.the victim of an unlawful arrest, unless the evidence was obtained against him solely through an involuntary disclosure on his part, immediately coerced by that arrest and the destruction of Ms .ability to keep to Ms own self and person the indicia of guilt which he otherwise would not have divulged or disclosed.

Judgment affirmed.


text:
    1180.
    Croy v. The State.
    Accusation of riot, from city court of Dalton — Judge Longley. April 13, 1908.
    Submitted June 9,
    Decided June 18, 1908.
    The accusation charged the plaintiff in error with the offense of .riot, in that he did, in violent and tumultuous manner, and jointly with four other named persons, and in execution of a common intent, obstruct, resist, and oppose the marshal of the city of Dalton in making an arrest, and did unlawfully assault the marshal, and did otherwise act in a violent and tumultuous manner. The evidence introduced by the State shows, that the marshal, acting upon information that a brother of the defendant had committed an offense against a law of the State, attempted to arrest the. brother, and was resisted in making the arrest, not by the defendant, but by his brothers and his father; and that thereupon the marshal went off and summoned a posse, and returned for the purpose of effecting the arrest, and was again resisted by the father and brothers, and finally arrested them. The defendant-was not present when the marshal went to make the arrest alone, or when he returned with the posse, and took no part in the resistance on either occasion. After the arrest was made,- the defendant came upon the scene and attempted to take his own gun from a member of the posse; a scuffle ensued between them for the possession of the gun, and the defendant was knocked down by other members of the posse.- -Neither his father nor his brothers, who are jointly- accused with him, participated in this act of violence. When he took hold of the gun he said to the man who had it, “What, are you doing with my gun?” and the struggle then ensued for its possession, between these two alone.
   Hill, C. J.

To constitute tlie offense of riot, tliere must be two or more persons acting jointly and in execution of a common intent, in the commission of an unlawful act of violence, or of some other act in a violent and tumultuous manner. Where the evidence shows that the act committed by the accused, whether an unlawful act of violence or otherwise, was not done in execution of a common intent with any other person, and not done, jointly with another, but by him alone, a verdict finding him guilty of riot was contrary to law, and a new trial should have been, granted. Penal Code, § 354; Stanfield v. State, 1 Ga. App. 532 (57 S. E. 953) ; Robinson v. State, 84 Ga. 680 (11 S. E. 544).

Judgment reversed.

George G. Glenn, for plaintiff in error.

Samuel P. Maddox, solicitor-general, contra.


author: Russell, J. Powell, J.,

text:
    1188.
    ALLEN v. THE STATE.
    1. A confession uncorroborated will not authorize a conviction of crime; nor is a conviction of crime authorized upon a confession even though it be corroborated, where it plainly appears that the confession was induced by even the slightest hope of favor or the remotest fear of injury.
    2. The corpus delicti is not established where evidence that a crime has been committed is derived wholly from a confession, even though such confession be freely and voluntarily made. The amount of corroboration which is required to support a confession which has been freely and voluntarily made, and to authorize a conviction upon such a confession, is a question for the jury. But corroboration of the confession does not necessarily afford proof of the corpus delicti.
    Indictment for manufacturing spirituous liquor, from Pulaski superior court — Judge Littlejohn. April 3, 1908.
    Submitted June 9,
    Decided June 18, 1908.

      H. F. Lawson, for plaintiff in error.

      E. D. Graham, solicitor-general, contra.
   Russell, J.

The defendant was convicted of manufacturing intoxicating liquor in violation of the general prohibition law of this State, approved August 6, 1907. (Acts of 1907, p. 81). It appears, from the evidence, that a respectable lady of Pulaski county and her husband had been assaulted by unknown parties. Naturally the excitement and indignation were general and intense. The defendant was a negro, and shortly before his arrest twonegroes, supposed to have been implicated in the assault, had been, lynched. The defendant knew this. As he was going along a road he was overtaken by a posse, and the two first men who overtoqk him were riding in a buggy. One jumped out on one side of the buggy and one on the other, one armed with a gun, while the other presented his pistol at the defendant and commanded him to halt. The defendant offered no resistance, nor did he make any attempt to flee. He was taken in charge by a party of eight or ten men, who securely tied him with a rope andlcarried him into the woods, where he was kept tied about four or five hours. It does not appear that any threats were made with reference to the case now under consideration, or that any inducement of favor was extended to him to procure a confession; but, according to the testimony, he was subjected to a rigid cross-examination with reference to his reasons for having been, a short time previously, 'in company with one Ike Wells, who was one of the negroes that had just been lynched. The defendant explained his presence at Wells’ house by saying that he was there helping Wells to manufacture whisky; and the indictment now before us originated from this confession.

It is clear to our minds that the evidence in this case does not warrant the conviction of the defendant, and that the court erred in overruling his motion for new trial. Outside of his confession, there is no evidence that the defendant ever manufactured any whisky, either for himself or in conjunction with Ike Wells. It is true that one of the witnesses testified that the defendant produced, at the request of the posse, a bottle of “Kennesaw,” which is testified to be the kind of whisky made from cane skimmings. But there is nothing to show that this bottle of whisky was made by the defendant, or by his aid, except his statement. We are of the opinion, for this reason, that the corpus delicti was not shown. It is unnecessary, however, for us to deal with this question further than in what is contained in the headnote.

We think the plaintiff in error is entitled to a new trial because the confession was not freely and voluntarily made. And if the confession is excluded, the verdict, being without evidence to support it, is contrary to law. It is true that the witnesses for the State testified that “everything was peaceable” and that the defendant seemed “unafraid.” Giving full credit to the witnesses for the State, we do not think that their opinion (for, from 'the nature of the case, the evidence of these witnesses could only be mere matter of opinion) that the defendant “seemed unafraid” throws as much light on the question whether the defendant confessed voluntarily, or through fear that he had manufactured whisky, as the fright-producing environments of the defendant and their natural consequences. If he had properly presented the question as to refusal of the trial judge to rule out this testimony, we would .unhesitatingly hold that all of the evidence in reference to the confession should have been excluded. As there is no sufficient assignment of error upon the refusal to exclude this testimony, we can not consider the fourth ground, of the motion. The confession stands before us as if it had beep admitted to the jury without objection. This being true, the duty devolved upon the jury to determine for themselves (what the court would have been required to determine in the first instance) whether the confession was freely and voluntarity made. And this testimony must be governed by the same rules of law as would have controlled the judge in permitting or excluding the evidence. Under the facts and circumstances of this ease, the jury should have disregarded the confession; and without this testimony there was no evidence of the defendant’s guilt. The verdict, therefore, was contrary to law, because without evidence to support it, in the same sense that a verdict in any case would be contrary to law where it depended wholly upon testimony which was without probative value; and for that reason the judge erred in refusing the defendant a new trial.

Judgment reversed.

Powell, J.,

concurring specialty. I find in the record sufficient circumstances to corroborate the confession, if it were held to be freely and voluntarity made. I doubt our right to overrule the finding of the jury, under the approval of the trial judge, that the confession was free and voluntary; still I am not so strongly impressed with this view as to justify me in dissenting from the judgment of my associates in granting a new trial on this ground.


text:
    1195.
    Avery v. The State.
   Hill, C. J.

1. The judges of the superior courts have jurisdiction to hear and determine certioraries in criminal cases, as in civil cases, in vacation, and in a county other than that wherein the plaintiff in certiorari was tried and convicted. Renal Code, §§ 764,-767; Civil Code, § 4323.

2. The judge of the superior court, on the application of either the plaintiff in certiorari or the solicitor-general, can pass an order fixing a time and place for hearing the certiorari; and when the time and place is fixed by the court on the application of the solicitor-general, the solicitor-general shall give the accused or his attorney ten days’ notice in writing of the time and place of the hearing. This notice need not be given by him officially; it is sufficient if given by any one' acting under his direction. If the accused, by his counsel, appear at the time and place so fixed and participate 0ixx the hearing, he will be presumed to have’ waived the ten days’ notice required by statute (Civil Code, § 4324).

Certiorari, from Putnam superior court — Judge Lewis. April 20, 1908.

Submitted June 9,

Decided June 18, 1908.

W. T. Davidson, for plaintiff in error.

J. E. Pottle, solicitor-general, contra.

3. The verdict was fully supported by the evidence, and there was no error in overruling the certiorari. Judgment affirmed.


text:
    1196.
    Jackson v. The State.
    Accusation of cheating and swindling, from city court of Fitzgerald — Judge Jay. April 18, 1908.
    Submitted June 9,
    Decided June 18, 1908.
   Russell, J.

1. The solicitor of a city court may amend an accusation in that court at any time before the defendant therein has pleaded to the merits, provided the affidavit of the prosecutor will legally support the accusation as amended, unless such amendment is forbidden by the act creating the court. Goldsmith v. State, 2 Ga. App. 283 (58 S. E. 486). The act creating the city court of Fitzgerald (Acts of 1905, p. 222) not forbidding the amendment of accusations, the court did not err in allowing the accusation in the present case to be amended by alleging that the defendant was a laborer, instead óf a farm laborer, although the affidavit averred the defendant to be a farm laborer.

2. On the trial of an accusation charging the violation of the labor-contract law of 1903 (Acts of 1903, p. 90), evidence that R. & Brother furnished certain goods to the defendant will not, without more, suppox't an allegation that the defendant procured from D. & Company valuable merchandise and supplies.

3. A conviction ixpon an accusation alleging that the defendant was a laborer can not be supported by evidence which cleax'ly discloses that the contract between the parties was one of- a .different nature. An agreement whereby certain turpentine boxes are placed by the owner under the control of another, who agi'ees to chip and dip the same upoxx a counter-agreement of the owner to pay him $2.75 per barrel for all the turpentine yielded by said boxes, is not a contract of hire, but one ixx the nature of a rental.

4. From what has been said, consideration of the other assignments of error Is unnecessary. Judgment reversed.

Eason & Bull, for plaintiff in error.

O. H. Elkins, solicitor, contra.


text:
    1205.
    French v. The State.
    Accusation of cheating and swindling, from city court of Fitzgerald — Judge Jay. April 24, 1908.
    Submitted June 9,
    Decided June 18, 1908.

      J. B. Wall, for plaintiff in error.

      O. H. Elkins, solicitor, contra.
   Powell, J.

Under the Penal Code, § 669, “Any person who shall, in the sale or disposing of any property, either real or personal, defraud another by falsely representing that such property is not subject to any lien,' knowing the same to be subject thereto, . . shall be punished as for misdemeanor.” Where the State shows that the defendant knowingly sold the prosecutor a parcel of real estate upon which a binding common-law execution had been levied, and expressly informed him that there was no lien thereon, a conviction may be sustained, although the prosecutor has not paid off the execution. The incumbrance upon the property, caused by the existence of the lien, effects such damage upon the prosecutor as to make the act criminal. In the ease at bar the evidence justified the verdict of guilty rendered against the accused.

Judgment affirmed.


text:
    1031.
    Singleton v. Merchants & Miners Transportation Company.
    Action for damages, from city court of Savannah — Judge Freeman. January 9, 1908.
    Argued April 21,
    Decided June 18, 1908.
    Rehearing denied July 8, 1908.
   Powell, J.

The action is by a ship-hand against the owners, for injuries received while loading freight. The evidence tends to indicate either that the injury was occasioned by the negligence of fellow servants— as to this defendant a non-actionable transaction, or through haste in the manner in which the loading was being done under the orders of a foreman, — a thing for which the defendant primarily would be liable. Nevertheless the situation was manifestly patent, and the servant, by voluntarily continuing to work under the circumstances, in legal contemplation evinced a willingness to assume risk of injury. The grant of a nonsuit was, therefore, not erroneous. Judgment affirmed.

Shelby Myrick, for plaintiff.

O’Connor, O’Byrne & Hartridge, for defendant.


text:
    943.
    MACON GAS LIGHT AND WATER COMPANY v. FREEMAN, administrator.
    1. The Macon Gas Light and Water Company, in the exercise of a franchise granted to it by the City of Macon, and under its contract with the city, is under a public duty to furnish to the inhabitants of the city, for domestic use, a supply of water, at fixed tolls; and for a breach of this duty it is liable in damages to a citizen who has sustained injury by reason of the breach. The citizen who is entitled to he furnished the water is under a correlative duty to pay the company therefor, according to its tolls and at the time and in the manner prescribed by its rules; and the failure to do so gives the company the right to discontinue furnishing the water to the delinquent; "and when it exercises this right in a proper and reasonable manner, it is not liable in damages.
    2. The verdict is without evidence to support it, and is therefore contrary to law.
    Action for damages, from city court of Macon — Judge Hodges. December 7, 1907.
    Argued April 21,
    Decided July 8, 1908.
    Freeman sued the Macon Gas Light and Water Company for damages on account of the alleged wrongful cutting off of water from his residence. The jury rendered a verdict in favor of the plaintiff, for $150; and the defendant’s motion for a new trial was overruled. The motion for a new trial contains numerous assignments of error, but the controlling issue in the case is whether, under the facts, the defendant company committed a breach of its duty as a public-service corporation, in cutting off the water from plaintiff’s residence. The Supreme Court, when the case was before it, decided, that the defendant was a public-service corporation in. so far as the duty of furnishing water to the citizens" of Macon was. concerned; and that for a breach of this duty the injured party could recover nominal damages, or, if the circumstances would warrant, punitive damages, and also such special damages as might proximately flow from a breach. Freeman v. Macon Gas Light and Water Co., 126 Ga. 846 (56 S. E. 61, 7 L. R. A. (N.S.) 917).

      The following is a substantial statement of the material evidence pertinent to the controlling issue as above stated and the contentions of the parties thereon. The Macon Gas Light and Water Company furnishes water to the citizens of Macon under a contract with the city, and the plaintiff was a householder in Macon and a customer of the company. Water bills, under the rules and regulations of the company, are payable monthly, and it is the custom of the company to send to its patrons on the first day of each month the following notice: “All water bills are payable by the 15th of each month. Non-payment of the same will cause the supply to be discontinued, and the payment of one dollar will be required for the turning on of the water.” The plaintiff in the court below admitted that when his water was cut off from his residence he was in arrears in the payment of his bills for water for the months of December, 1904, and January, February, and March, 1905, and that he had received from the company each month the foregoing notice. He insisted, however, that notwithstanding his failure to pay for his water for the four months in question, and the repeated demand of the company for payment, the company had no right to cut off the water from his residence without first’giving him five days’ notice of its intention to do so. He bases this contention upon section 8 of the water company’s contract with the city of Macon. This section reads as follows: “As the safety of the property of the citizens is largely dependent upon the proper and efficient management of the waterworks, and to that end rules and regulations are necessary to be observed, it is hereby agreed by the parties hereto that the right of the party of the second part to enter into the premises of the citizens by its authorized agent, during business hours of the day, for the purpose, of inspecting the water fixtures used by its customers, is recognized, and its right to shut off the water from any section of the city to make repairs and extensions, after notice where practicable, but without notice in emergency, as well as its right to refuse to supply customers who neglect to pay for their supply, or who refuse to have fixtures repaired to prevent waste, or who persistently waste the water, after five days’ notice and in accordance with the published rules of the party of the second part.” The following rule of the water company was also introduced in evidence: “If any parties neglect or refuse to pay the water rent when due, or permit any waste or use of water not authorized by the company, or shall fail to keep hose and fixtures in good repair, the water may and will be turned off without notice, at the option of the company, and not turned on again until all back water rent and damages are paid, and in addition thereto the sum of one dollar for expense of shutting off and turning on the water.”
    The trial court, construing section 8 of the contract with the city above quoted, charged the jury that the water company would have the right to cut off the water, for non-payment of water bills when due, only after giving the delinquent five days’ notice of its intention to do so; and this construction of the contract is one of the errors assigned. The plaintiff in the court below insisted, in the next place, that while he himself had not paid his water bills for the four months stated, he did not owe the bills in question when the water was discontinued; because the company had accepted Mr. Roland Ellis as its debtor for the bills, in lieu of himself. In support of this position he testified, that he had requested Mr. Ellis to pay the bills for him, and that Mr. Ellis had reported to him that lie had “settled the matter with the president of the company.” This testimony was objected to by the defendant, on the ground of hearsay; but the court admitted the testimony. On this point, the president of the company testified, that Mr. Ellis had not paid the bills for the plaintiff, and that he had not agreed to accept Mr. Ellis as the company’s debtor in lieu of the plaintiff, but that he had simply promised to hold up the bills for a week, because Mr. Ellis had stated to him that in that time the plaintiff would have money with which to pay them. It is further shown, on this point, that when the plaintiff, during the first week in May, went to the office of the water company to pay his bill for the month of April, he was informed by the cashier of the company that Mr. Ellis had not paid the bills in question, and that the company required the plaintiff to pay the bills before it would accept payment from him of the bill due for the month of April. The water was not cut off from the plaintiff’s residence for nearly a month after this information had been given to him by the cashier, and after the demand for payment for the four-months in question had been made on him personally.

      N. E. & W. A. Harris, for plaintiff in error. J. E. Hall, contra.
   Hill, C. J.

(After stating the facts as above.)

The admitted facts in this ease prove that there was no breach of its public duty by the water company in cutting off the water from the plaintiff’s residence. Under its franchise and the contract made with the city, the water company was unquestionably under a duty, as a public-service corporation, to furnish water to the citizens of Macon for domestic use; but the citizens were under a correlative duty to pay for the water so furnished to them. The failure to pay for the water according to the tolls and the rules of the company releases the water company from the duty of furnishing water. Payment for the water, and time of payment, were of the essence of the contract to furnish water; and a failure on the part of the citizen to pay for the water when furnished, within the period fixed by the company for payment, was such a breach of the agreement by the citizen as entitled the company to rescind the contract made with the city to furnish the water, in so far as the delinquent citizen was concerned. No citizen could justly claim the benefit of the contract, without performing his correlative obligation. Savannah Ice Delivery Co. v. American Refrigerator Transit Co., 110 Ga. 142 (35 S. E. 280).

Conceding that the water company could not exercise its right to discontinue the water on failure to pay for it according to its rules and regulations, without first giving a delinquent five days’ notice of its intention to cut off the water on account of such failure of payment, yet the evidence in this case incontestably shows that the plaintiff in the court below had in fact had much longer than the five days’ notice from the company that his bill was past due and that the water would be discontinued unless payment was made. This notice had been sent to and received by the plaintiff each month for four months before the water was cut off, and it seems to us that, under the admitted facts, the company had fully complied with the requirement as to notice. In other words, ww think the evidence shows that the company had been more indulgent to the delinquent customer on the subject of notice than was required by the contract, even as construed by the court.

The contention of the plaintiff in the court below that at the time when the water was cut off he did not owe the bill for the four months is not sustained by evidence. His contention that Mr. Ellis had been accepted by the company as its debtor, in lieu of himself, is not supported by his statement that Mr. Ellis had told him that he had settled the matter with the president of the company. This testimony, being hearsay, was of no probative value, and besides was completely refuted by the admitted fact that the company had personally notified him that Mr. Ellis had not paid the bill, and that he (the plaintiff) would be required to pay it before the payment of his April bill would be accepted.

In the view that we take of this case, it is not necessary to consider the other numerous assignments of error. On the merits, under the uncontroverted evidence, the plaintiff was not entitled to any recovery at all. He had failed to pay his water rent for a period of four months. He had repeatedly received notices from the company that the water rent must be paid by the 15th of the current month, or the water would be discontinued without further notice. He had disregarded the repeated notices so given to him, and had persisted in his delinquency. His conduct had fully absolved the company from any duty it owed him by reason of its contract with the city, and he had thus given to the company the right to discontinue the water. Instead of there being any breach by the company of its public duty, it had exercised its manifest right to discontinue the water, properly and indulgently; and the verdict against it is wholly unsupported by the evidence, and is therefore contrary to law. The judgment refusing a new trial is Reversed.


author: Powell, J. Russell, J.,

text:
    969.
    FORD v. HARRIS.
    1. Where a motion for a new trial is made before a judge other than the one who presided at the trial, the same breadth of presumption is not indulged in favor of the correctness of the grant as in cases where the judge who actually presided at the trial grants the new trial.
    2. In this ease the verdict rendered was supported by the evidence; a verdict, if rendered in favor of the opposite party, would not have been so. The judge, therefore (who did not preside at trial), erred in granting a new trial.
    Trover, from Gwinnett superior court — Judge Brand. December 5, 1907. (See 130 Ga. 273.)
    Argued April 21,
    Decided July 8, 1908.

      O. A. Nix, for plaintiff in error.

      N. L. Hutchins, J. A. Perry, contra.
   Powell, J.

Mrs. Harris sued Ford for certain personal property, chiefly household goods, formerly belonging to Mrs. Holmes, who was the mother of the plaintiff and the grandmother of the defendant. At the first trial of the case the plaintiff had a finding in her favor, and this was set aside by the presiding judge, upon motion for new trial, on the ground that the verdict was contrary to the evidence. At the second trial Judge Kimsey presided. There was a verdict for the defendant, and a motion for new trial was filed. This motion came on to be heard before Judge Brand, who had in the meantime been elected judge of the superior court of the circuit including the county of Gwinnett, where the trial occurred. Upon this motion, which contained only the general grounds, Judge Brand granted a new trial, and the defendant excepts.

While any judge, in passing on a motion for a new trial, must exercise a sound discretion, still, where the judge who is acting upon a motion is not the same judge who presided at the trial, the reason for the rule that every presumption should be indulged in favor of the legality of the grant does not prevail. Shannon v. State, 57 Ga. 482.

The plaintiff’s case rested upon a gift to her of the goods by her mother in the year 1895. The defendant showed a gift from the same source two years prior to the date just mentioned, and possession of the property for about seven years before the bringing of suit. The plaintiff also attempted to aid her case by proof of the declarations of the mother, made after she had parted with her title to the defendant. These declarations were mere hearsay, and were not admissible in evidence. On the other hand, her declarations (she having died) against her interest were admissible in favor of the defendant, under the rule that the declarations of a deceased person against his interest are not subject to the objection that they are hearsay. The plaintiff and the defendant both showed title from the same source; the defendant’s, being prior in point of time, was entitled to prevail.

Russell, J.,

though not legally disqualified, declined to participate in the decision, having presided at the first trial of the case in the court below. Judgment reversed.