author: Luke, J.

text:
    18857.
    MOBLEY, superintendent of banks, v. MINTER et al.

      Decided December 11, 1928.

      O. A. Parle, G. N. Davie, J. P. Kemp, for plaintiff.

      Slade & Swift, for defendant.
   Luke, J.

A. B. Mobley, superintendent of banks for the State of Georgia, brought an action against certain officials of the Bank of Cusseta to recover money alleged to have been lost on account of the negligence of the defendants. The defendants demurred to the petition upon both general and special grounds. The court adjudged “that said demurrers be sustained, and said petition of the plaintiff be dismissed/’ and the plaintiff excepted.

The petition by paragraph is substantially as follows: (1) Petitioner took charge of said bank in his official capacity on July 14, 1926. (2) At the time petitioner took over the affairs of the bank, its officers were C. C. Minter, president; O. C. Stephens, vice-president, and W. A. Gaylor, cashier; and said officers and E. M. Lightner and S. D. MeMurrain constituted its directors; said Minter, Stephens and MeMurrain having been members of the board of directors of said bank continuously for more than fifteen years before the closing thereof; and said Gaylor and Lightner having been members of said board continuously for more than seven years before the closing thereof. (3) “All of said directors are residents of Chattahoochee county, and all of said parties are named as defendants in this suit.” (4) As directors and officers of said bank, defendants were charged with the administration of its affairs, the investment of its funds, including amounts deposited with it, and the protection of its depositors and stockholders, and it was their duty to give their personal attention to the trust eommitteed to them, and to use their best judgment and business ability in the handling of the affairs of said bank, and the investment of its funds so that the business might be safely conducted without loss to depositors and with profit to the stockholders of the bank. (5) “Said officers and directors as aforesaid grossly neglected the duties devolving upon them . . and so mismanaged and neglected tlie affairs of said bank as that it became insolvent and was forced to close its doors; by reason of which neglect and misconduct the depositors sustained large losses, investment of the stockholders was swept away, and they became liable upon assessment of 100% on their stock for the benefit of the depositors.” (6) “Defendants, acting as a board of directors, entered into a contract with Bankers Trust Company, a corporation having its place of business in Atlanta, Fulton county, Ga., by which said trust company was constituted the financial agent of said Bank of Cusseta, and the said defendants allowed said trust company to invest a very large proportion of its funds and'to manage and control as it saw fit all of the business of said bank save its purely local affairs.” (7) Said trust company undertook to place for said bank such funds as were not presently needed to care for the demand of the local customers of the bank, and, “as often as the bank had any accumulated funds on hand, sent to it commercial paper, which paper the defendants as officers and directors of said bank took and paid for without question.” Such paper, amounting to $46,443.50, besides .interest, was held by the Bank of Cusseta when it closed its doors. (8) Most of said paper “was that of corporations closely affiliated with the trust company and in which it or its officers were largely interested, in many instances being the only stockholders, and the paper of its officers and their close business associates.” (9) “Any investigation on the part of defendants would have disclosed the fact that the trust company was directly or indirectly interested in the paper which it offered the bank, and . . that most of the corporations and individuals were insolvent or were not entitled to the amount of credit they were securing. An investigation would also have shown that few, if any, of the papers offered for discount were properly secured.” (10) “Defendants made no investigation whatever of any of the paper offered to said bank by the Bankers Trust Company, but accepted the same when it was offered without investigation and without question.” (11) “In almost every instance the paper held by the bank at the time it closed has been renewed from time to time. Almost all of it had been carried for a period of two years, and a large portion of it had been carried from four to fifteen years. In most instances no reductions or payments on account had been made.” (12) “The fact that the paper had been renewed o'ver such a long period of time was of itself sufficient to put the defendants on notice that the makers of the paper were not proper business risks, and any attention to the affairs of the bank would have required the defendants to take appropriate steps for the collection of the paper, but said defendants continued through a long period of years to accept renewals every ninety days, and made no effort whatever to collect the paper, to have it better secured, or to require its reduction.

(13) “The paper which had been placed in the bank by the Bankers Trust Company which was held among its assets at the time it closed and upon which the bank sustained large losses was as follows: (a) Amortization Corporation, Atlanta, Ga., endorsed by Georgia Bealty Company, $2,060. This loan was placed in the bank on November 1, 1922, and had been renewed eight times prior to the closing of the bank. The Amortization Corporation was organized by the officers of the Bankers Trust Company for the purpose of financing large losses which they had sustained in an automobile enterprise. The company at no time had any substantial assets, but did assume very heavy liabilities. Its officers were officers of Bankers Trust Company, and its business was conducted from the office of the Bankers Trust Company. It has been liquidated through a receivership in Fulton superior court, and no dividends whatever have been paid to general creditors. Georgia Bealty Company, a real-estate corporation organized by the Bankers Trust Company, and the business of which was conducted from the office of that company. It was insolvent at the time this loan was placed in the bank and had been insolvent some time prior thereto. It has been adjudged a bankrupt and has paid its eredtors 4%. Except for the small dividend paid by the Georgia Bealty Company, this loan will be a total loss to the bank. (&) Bankers Investment Company, Jacksonville, Fla., secured by stock in Bankers Guaranty Company, Miami, Fla., $2,000. Both these corporations were subsidiaries of the Bankers Trust Company, through which it served Florida banks belonging to its chain, and financed its Florida operations and speculations. Both companies have been adjudged bankrupt. The liquidation of the Bankers Investment Company has been completed and creditors have been paid no dividend. The stock of the Bankers Guaranty Company of Miami is worthless. The loan was placed in the bank June 25, ’ 1925, and was renewed three times. The loan will be a total loss to the bank, (c) Bankers Financing Company, Atlanta, Ga., secured by stock in sundry banks, $4,000. The stock of the Bankers Financing Company was all owned by the Bankers Trust Company. It had no assets except the stock in certain banks belonging to the Bankers Trust Company chain, all of which was hypothecated. The company has been adjudged a bankrupt and no dividend has been paid to its creditors. The stocks securing this loan are worthless, except the ten shares of stock of the First National Bank of Amity-ville, N. Y., which has been sold, and litigation is pending in the courts of New York over the proceeds, and two shares' of stock in the Bank of Irwinton. The other banks are all being liquidated through the superintendent of banks, and assessments of 100% have been levied on the stock by the superintendent. The loan was placed in the bank December 1, 1920, and was renewed sixteen times. The bank will sustain a loss of not less than $3,000 on this loan. (d) Bankers Trust Company, Atlanta, Ga., $4,000, secured by ten shares of stock of the Bank of Jennings, Jennings, Fla.; thirty shares of stock of Georgia State Bank, Atlanta, Ga. The Bankers Trust Company has been adjudged a bankrupt, and no dividend has been paid to creditors. The stock securing the loan is worthless; all of it was for the stock of banks which have closed, and upon which assessments have been made. The loan was placed in the bank on December 1, 1920, and was renewed nineteen times, and will be a total loss to the bank, (e) Farley & Heard, Miami, Fla., endorsed by Georgia Farm Loan Company, $2,040. Farley & Heard were real-estate operators in Miami who went out of business and became insolvent in 1925. The Georgia Farm Loan Company was a corporation organized by the Bankers Trust Company, and having the same officers, and its affairs were conducted from the office of the Bankers Trust Company. It has been insolvent fox at least five years, and it has practically no assets. It has been adjudged a bankrupt and no dividends have been paid to creditors. The loan was placed in the bank May 17, 1926, and will be a complete loss to the bank. (/) Georgia Bealty Company, Atlanta, Ga., guaranteed by Bankers Trust Company, $2,728.50. The Georgia Bealty Company is the same corporation referred to in paragraph (&) hereof. The guarantee of the Bankers Trust Company is wholly worthless, as that company guaranteed commercial paper of more than three million dollars. This note was placed in the bank June 6, 1910, and has been renewed thirty-six times without any reduction in the principal. Except for the small dividend paid by tbe Georga Realty Company, tbe loan will be a total loss to the bank, (g) Decatur Brick Corporation, Decatur, Ala., endorsed by John E. Morrison and H. T. Rawlins, $3,000. The Decatur Brick Corporation operated a brickyard at Decatur, Ala. P. J. Baker, treasurer of the Bankers Trust Company, was heavily interested and was a director of the corporation. It has been adjudged a bankrupt, and has paid its creditors 30%. Both indorsers of the note are insolvent. The note was first placed in the bank September 29,, 1919. It has been renewed twenty-three times. Except for the 30% dividend the note will be a total loss to the bank, (h) Bankers Security Company, Atlanta, Ga., secured by note [of] Amortization Corporation, $2,040. The Bankers Security Company was a corporation organized by the Bankers Trust Company and conducted in its offices. It was insolvent at the time this loan was made, and has since been adjudged a bankrupt, and no dividend has been paid to creditors. The Amortization Corporation was referred to in paragraph (a) of this petition. Both the Bankers Security Company and the Amortization Corporation were insolvent at the time the loan was originally made. The loan -was originally placed in the bank on August 10, 1923, and was renewed eight times. Said loan will be a total loss to the bank. (i) Clarendon Hotel Company, Seabreeze, Ela., secured by second mortgage on hotel, and endorsed by E. L. Kincaid and Bankers Guaranty Company of Miami, Ela., $2,550. The first mortgage of $222,000 on the Clarendon Hotel Company’s property has been foreclosed and final judgment rendered. The second mortgage secures indebtedness of $50,600, which is long past due, and no payments have been made. E. L. Kincaid is the president of the hotel company, and is endorser on first mortgage, as well as on the second. Bankers Guaranty Company is the same corporation referred to in paragraph (&) hereof. It is guarantor on the first mortgage, as well as on the second, and has endorsed and guaranteed a very large amount of commercial paper. Whether or not this loan is of any value will depend on whether the hotel company’s property can be sold for more than enough to pay the first mortgage. The loan was placed in the bank May 25, 1925, and was renewed four times. (/) E. B. Davis, Byromville, Ga., secured by five shares of stock [of] Bank of Byromville, $300. This note was discounted June 1, 1923, and has been renewed seven times. Diligent effort has been made to collect the note since the closing of the bank, but so far all efforts have failed. (h) C. A. Hatcher, Columbus, Ga., $4,070, secured by stock in the Chero-Colo Company, Columbus, Ga. This loan was placed in the bank on July 14, 1924, and was renewed eight times without reduction. This is part of a loan amounting to $190,000. Some payments have been made by C. A. Hatcher since the bank closed. The amount of loss on this loan can not be estimated. (1) Liberty Cotton Mills, Dallas, Ga., secured by four $1,000 first-mortgage bonds on the property of the mills, $4,065. Liberty Cotton Mills failed and was reorganized by the Bankers Trust Company, the trust company owning all the stock of the reorganized cotton mills. The property against which the first-mortgage bonds were issued was appraised at less than 50% of the amount of the bonds. The mill has been adjudicated a bankrupt and has paid no dividend to creditors. The loan was placed in the bank on April 15, 1919, and was renewed fifteen times. This bank will sustain a loss of more than $2,000 on this loan. (m) Morning-side Park Inc., Atlanta, Ga., guaranteed by Bankers Trust Company, $2,000. It owns a considerable body of land in Fulton county, largely undeveloped and of uncertain value. The corporation was organized by the officers of Bankers Trust Company and is in the hands of a receiver appointed by Fulton superior court. The note was placed in the bank on December 12, 1925, and was renewed three times. The bank will sustain a loss of at least 50% of the amount of the note. (n) Phoenix Building Company, Atlanta, Ga., secured by bonds on Atlanta city property, $3,070. Phoenix Building Company was a corporation organized by the Bankers Trust Company, the business of which was conducted in the office of the Bankers Trust Company. Had the defendants investigated they would have found that the property which purported to secure these bonds stood in the name of Georgia Bealty Company, and that the deed of trust securing the said bonds had never been executed or recorded. Phoenix Building Company has been fully administered through a receiver in Fulton superior court and has paid a dividend of 31%. The loan was placed in the bank on December 29, 1921, and was renewed fourteen times. Except for the dividend of 31% the note will be a total loss to the bank, (o) Harry S. Kelsey, Miami, Fla., $1,020. Kelsey was a real-estate operator at West Palm Beach, Fla. This claim is a participation certificate issued by the Bankers Trust Company in a loan of $75,000 made to Kelsey. The loan has been paid off, but the bank in Miami, Fla., which collected the amount has set off the amount collected against the indebtedness due it by the Bankers Trust Company. Suit is now pending in Florida for the recovery of the amount, but result of the suit is problematical. The loan was placed in the bank on February 10,1926. (p) J. R. Smith, Atlanta, Ga., secured by notes of P. J. Baker, Atlanta, $2,000. Both J. R. Smith and P. J. Baker were trustees of Bankers Trust Company, Baker being also treasurer. J. R. Smith is now deceased and his estate is insolvent. P. J. Baker has been adjudged a bankrupt and has paid a dividend of only 1%%. This loan was placed in the bank on November 25, 1924, and was renewed seven times. With the exception of the small dividends paid by the bankrupt estate of P. J. Baker the loan will be a total loss. (q) J. R. Smith & Company, Atlanta, Ga., secured by twenty-five shares of stock of Morningside Park Inc. J. R. Smith & Company was a partnership composed of J. R. Smith and W. D. Manley. The partnership has no assets. J. R. Smith is the same party referred to in paragraph (p) hereof. W. D. Manley has been adjudged a bankrupt and no dividends have been paid to his creditors. The partnership had a policy of insurance on the life of J. R. Smith from which dividends of 28% have been paid to creditors. Except for these dividends the loan will be a total loss. The loan was placed in the bank on December 16, 1922, and was renewed eleven times, (r) Summit Nurseries, Monticello, Fla., endorsed by Miller Gissard, $3,000. Both principal and endorser are of doubtful solvency. The loan was placed in the bank on February 24, 1925, and was renewed four times. The bank will sustain a loss of $2,000, or other large sum, on this claim.”

(14) “The Bank of Cusseta had a capital stock of $15,000, and claimed a surplus of $7,500, and ‘could not lend over 10% of that amount’ to any one person or corporation, unless the loan was secured and approved in writing by a majority of the board of directors. Each renewal note exceeding $1,500 was so approved by a majority of the directors, but said defendants were so negligent in the discharge of their duties that they approved these several loans, with the constantly recurring renewals, without making any investigation or inquiry, and without any regard to the solvency of the makers and endorsers of the security back of the notes.” (15) “The loans hereinbefore referred to were frequently in the form of participating certificates issued by the Bankers Trust Company, certifying that the bank was entitled to participate in the amount indicated in a much larger loan, the principal obligation and the collateral securing the same being held by the Bankers Trust Company. Defendants made no effort to ascertain whether in point of fact the trust company held the notes against which the securities purported to have been issued or the collateral securing the same. The trust company renewed these loans, substituted collaterals, and changed the form of the obligation whenever it saw fit, without consulting or asking for the approval of the bank or the defendants who were its officers and directors. Where notes were secured by collaterals, the common practice was for these collaterals to be retained by the trust company in its own possession, sometimes sending to the bank its trust receipt for the collaterals. These collaterals were renewed, extended, exchanged, substituted by the trust company whenever it saw fit, and so negligent were the defendants that they made no inquiry as to what was being done with the collateral securing a large part of the funds of the bank, with management of which they were charged.” (16) “On account of the negligence of the defendants in discounting the notes hereinbefore referred to for the Bankers Trust Company, the bank and the depositors thereof will sustain a loss of $40,000, or other large sum.”

(17) “Defendants also allowed the said trust company to lend other funds belonging to it to banks belonging to the Bankers Trust Company chain of banks on call, the Bankers Trust Company placing funds from time to time with such banks as it saw fit, the defendants having no voice in the placing of the funds or with their repayment. At the time the bank closed it had $11,500 so placed; $3,000 with the Bank of Omega, $2,000 with the Bank of Palmetto, Georgia; $1,000 with the Bank of Pineview, Pineview, Ga.; $3,000 with the Farmers State Bank, Temple, Ga.; $1,500 with the Georgia State Bank, Mansfield, Ga.; and $1,000 with the Georgia State Bank, Bronwood. All of the above banks have closed and very small dividends will be paid to their creditors. The Bank of Cusseta will sustain a loss of approximately $9,000 on account of these loans which the directors negligently allowed the Bankers Trust Company to make on account of said bank.”

(18) “Said defendants negligently and wrongfully advertised that the depositors of the bank were insured against loss, and they paid over to the Depositors Guarantee Fund, operated by the Bankers Trust Company, which they allowed to completely dominate the policy of the bank, the sum of $2,?02.?0, and each year, after this deposit was made, credited interest on the amount, so that at the time of the failure of the bank this fund showed a credit balance on its books of $3,656.05. In truth and in fact the fund had been lost or squandered by the trustees thereof, and if the defendants had made any inquiry they could have ascertained that the depositors were not insured, and that the fund which they were carrying as an asset on their books did not exist. By reason of the advertisement that deposits in the bank were insured, the defendants induced depositors to make deposits with said bank when they’ knew, or by the exercise of proper diligence should have known, that the advertisement was false and that the depositors were not in fact insured.” (19) “Defendants purchased with the funds of the bank and carried as an asset thereof ten shares of stock of the Bankers Trust Company, paying therefor $1,500. Such stock was not a proper investment for the funds of the bank and the investment of the money of the depositors therein, and continuing to carry said stock as an asset of the bank was a breach of the duty which the defendants owed the bank and the depositors and stockholders thereof. An investigation of the condition of the Bankers Trust Company would have disclosed that the company was insolvent; but, in spite of its insolvency, defendants continued to carry the stock as an asset. The trust company has been adjudged a bankrupt, and the stock is a total loss. By reason of the negligence of the defendants, the bank, its depositors and stockholders, have sustained a loss on this item of $1,500.” (20) “By reason of the misconduct and the gross neglect of the defendants, the bank, its depositors and stockholders; have sustained losses in the sum of $60,000 for which defendants are liable.” 21. “Petitioner, as superintendent of banks in charge of the Bank of Cusseta, is charged with the duty of administering its affairs, collecting all amounts which may be due it, and distributing the same to depositors and other creditors according to the priorities fixed by law, and it is his duty as such superintendent to collect from the defendants the amount which has been lost by reason of their misconduct, breach of trust and neglect of duty.” (22) “Petitioner shows that the liability of said bank to its depositors is the sum of $117,679.12; that out of the assets of the bank there have been paid all claims entitled to priority of payment, and a dividend of 40% to depositors; that the remaining assets will not be sufficient to pay more than an additional ten per cent, if, indeed, so much can be realized out of them. There will therefore be due the depositors after all the assets are exhausted more than the sum of $58,000.” “Wherefore, petitioner prays judgment against said defendants and each of them in the sum of $60,000,” and that process issue, etc.

The first thirteen grounds of the defendants’ demurrer may be conveniently treated together. The substance of each of them follows by paragraph: (1) The petition is insufficient in law. (2) There is no right in the plaintiff to maintain the action. (3) No breach of duty by the defendants as directors is plainly, fully, and distinctly set forth. (4) The alleged acts of omission and commission of the defendants as directors are not shown to be the proximate cause of any actual loss to the depositors of the bank. (5) The petition is prematurely brought, in that the alleged acts of the defendants are not shown to be the proximate cause of any actual loss or damage sustained by the depositors of the bank. (6) The actual loss to the depositors at the time of the filing of said petition is vague, indefinite, uncertain, and unascertained. (7) The liquidation of the bank has not proceeded far enough to determine the actual loss to the depositors. (8) The amounts which will be realized for the depositors of said bank from its assets, other than the claims of the plaintiff against the defendants, are uncertain, vague, and indefinite. (9) The petition is duplicitous beeause.it seeks to embrace in one count an action for a breach of the defendants’ statutory duties as directors under the banking act approved August 16, 1919, and an action for a breach of the defendants’ common-law duties as directors. (10) The petition is duplicitous because the plaintiff seeks to embrace in the same count in the same action the liabilities of all the defendants as directors, and the liabilities of C. C. Minter as president, O. C. Stephens as vice-president, and W. A. Gaylor as cashier. (11) The petition is duplicitous, vague, indefinite, and uncertain in that the plaintiff seeks to maintain an action against all of the defendants as a board of directors, and against certain of the defendants for their alleged acts as president, vice-president, and cashier. (12) The petition is duplicitous in that the petitioner seeks to embrace in the same count of the same action an alleged right of action arising out of each of the transactions named in the subsection of paragraph 13 of the petition. (13) The petition is duplicitous because it seeks to embrace in one count common-law causes of action arising out of the eighteen separate transactions set out in paragraph 13 thereof, and another transaction for the breach of a statutory duty in paragraph 19 thereof, and still another transaction for the breach of a statutory duty in paragraph 14 thereof.

The petition abundantly sets out a cause of action, and if there had been any doubt as to this, such doubt would be completely dispelled by the ruling of the Supreme Court in the very similar case of Shannon v. Mobley, 166 Ga. 430 (143 S. E. 582). The petition is not duplicitous, and is not subject to any of the foregoing objections. Neither is paragraph 4 of the petition duplicitous, as alleged in paragraph 14 of the demurrer, because it embraces complaints against the defendants as directors and against some of them as officers of the bank.

The numerous attacks made on paragraph 4 of the petition, in paragraphs 15, 16, 17, and 18 of the demurrer, may be summarized as contending that the duties of the directors are overstated, and the diligence required of them made to exceed that which the law demands. “The general rule in’ this State is that directors of a bank must exercise ordinary care and diligence in the administration of its affairs.” Woodward v. Stewart, 149 Ga. 620 (101 S. E. 749). The duties of bank directors are discussed at length in the case cited. In the case of Shannon v. Mobley, supra, Justice Gilbert, speaking for the court, says: “If the qualities of integrity, diligence and loyalty are required in any institution more than in others, it would seem to be in banking institutions.” Under the authorities cited, paragraph 4 of the petition is not objectionable for any reason assigned in the demurrer.

Bearing in mind the nature of the case, the number of transactions involved, the patent fact that the entire action can not be set out in one or even a few paragraphs, paragraph 5 of the petition is not subject to any of the objections raised by paragraph 19 of the demurrer, these objections being mainly that the allegations of paragraph 5 are too general, and are opinions without sustaining facts.

Paragraph 20 of the demurrer complains that paragraph 6 of the petition states an erroneous conclusion of law in alleging that the directors were charged with the responsibility of “safely lending and investing” the bank’s funds. Let this paragraph be so amended as to allege that directors were bound to use ordinary care and diligence in safely lending and investing the funds of the bank. We are further of the opinion that paragraph 6 of the petition should be so amended as to allege the date and the essential parts of the alleged contract between the board of directors of the Bank of Cusseta and Bankers Trust Company, in order to meet .the 21st ground of the demurrer. The other grounds of the demurrer are not meritorious.

Grounds 22, 23, 24, 25, 26, and 27 of the demurrer to paragraphs 7, 8, 9, 10, 11, and 12, respectively, of the petition, for the most part attack these paragraphs of the petition for the alleged reason that they are vague, indefinite, and uncertain, are conclusions, and do not allege requisite facts. Considering these paragraphs in the light of the nature of the action and of the allegations in other paragraphs of the petition, these grounds of the demurrer are not good.

The demurrer raises approximately one hundred and fifty objections to the various subsections of paragraph 13 of the petition. Most of these objections may be summed up as follows: (1) There is not any statement as to when the particular loan was made, nor as to the value of the loan when it was made. (2) No allegation as to when the maker of the paper, or the security thereon, became insolvent. (3) No allegation of facts that would put the defendants upon notice that either the maker of the paper or the surety thereon was insolvent at the time the loan was made, or that the stocks or other security was worthless at such time, or at any time when the loan was renewed. (4) No statement as to when receiver was appointed, if one was appointed. No allegation of fact as to whether final dividend has been paid by insolvent maker or insolvent security, or as to when dividend alleged to have been paid was paid. (5) The particular claim is barred by the statute of limitations. (6) No allegation of actual loss to Bank of Cusseta. (7) The description and amount of stock securing the particular claim is not stated. (8) No statement as to what has been, or will be, realized from the security. (9) The allegation of loss is not supported by tbe facts, or there is no definite statement at all of loss.

In order to avoid repetition, we now state that any transaction referred to in paragraph 13, or elsewhere in the petition, which does not affirmatively appear to be within the statute of limitations, is subject to demurrer, and will be stricken unless amendment curing such defect is made before the remittitur of this court is made the judgment of the trial court. If the original loan, or any renewal thereof, was made within four years from the time suit was filed, the particular claim is not barred by the. statute. See Shannon v. Mobley, supra.

Subsection (a) of paragraph 13 of the petition should be amended so as to meet the 28th ground of the demurrer, to the effect that the claim is not shown to be within the statute of limitations. Otherwise this subsection is not subject to the demurrer. Subsection (b) is not subject to any ground of the demurrer. The loan referred to in subsection (c) was placed in the bank December 1, 1920, and was renewed sixteen times. It appeal's that the petition in this case was filed in office August 3, 1927. Therefore it appears that the claim is barred by the statute of limitations, and the demurrer is sustained in this regard, with the right in the plaintiff in error, however, to meet the objection by proper amendment before the remittitur of this court is made to the judgment of the trial court. The other grounds of the demurrer as to this subsection are not meritorious, and the judgment sustaining them is reversed. The loan referred to in subsection (d) is subject to the ground of the demurrer that it does not come within the statute of limitations. This item may be saved by appropriate and timely amendment. In other respects the court erred in sustaining the demurrer. The loan referred to in subsection (e) is not subject to the demurrer for any reason assigned. The demurrer as to subsection (/), in so far as it attacks the loan as not coming within the statute of limitations, is sustained, with the right to make timely and appropriate amendment. The court erred in sustaining the demurrer as to this subsection in other respects.

What was ruled in regard to subsection (/) in the next preceding paragraph applies to subsection (g). Subsection(h) is not subject to the demurrer, and the judgment holding that it was is overruled. The demurrer as to subsection (i), for the reason that the value of the paper is uncertain and problematical, is good. If this defect can be cured by appropriate and timely amendment, this may be done. Otherwise the subsection must be stricken. The judgment sustaining the demurrer as to this subsection in other respects is overruled. Subsection (/) is subject to the demurrer in that the facts alleged are insufficient to show any definite loss and no definite loss is alleged; also in that the claim is not shown to come within the statute of limitations; and in these respects the judgment sustaining the demurrer is sustained, with the right to make appropriate and timely amendment. In other respects the judgment sustaining the demurrer as to this subsection is error. Subsection (1c) is subject to the demurrer in that no facts are alleged to show what the amount of the loss is, and the judgment sustaining the demurrer in this respect is affirmed; in other respects it is overruled. Subsection (l) is subject to the demurrer in that it does not appear that the loan comes within the statute of limitations. A timely and appropriate amendment may be made to remedy this defect. If this is not done, the item is stricken. In other respects the judgment sustaining the demurrer is overruled.

In view of the fact that the borrower is in the hands of a receiver and its property is of uncertain value, the allegation of “a loss of at least 50 % of the amount of the note ” is a conclusion not supported by facts; and the demurrer in this regard to subsection (to) is good. Timely and appropriate amendment may be made; and if this is not done the item is stricken. In other respects the judgment sustaining the demurrer is reversed. Subsection (n) does not bring the claim within the statute of limitations, and in this regard the demurrer is sustained, with the right to make timely and appropriate amendment. In other respects the demurrer as to this subsection is not good. Subsection (o) is subject to the demurrer in that no facts are pleaded to show what the loss is, or what it is likely to be. In this regard the demurrer is sustained, with the right to make timely and proper amendment. In other respects the judgment sustaining the demurrer as to this subsection is reversed. Subsection (p) was not subject to the demurrer, and the judgment sustaining the demurrer as to this subsection is error. Subsection (q) is defective in these respects: The amount of the loan is not averred; the claim is not shown to be within the statute of limitations; and the facts alleged do not warrant the conclusion that there will be a total loss; nor do the facts alleged indicate with sufficient certainty what the loss will be. ■ In these respects only the judgment sustaining the demurrer as to this subsection is correct. In the absence of timely and appropriate amendment this subsection is stricken. The facts alleged in subsection (r) do not warrant the conclusion reached by the pleader that the bank “will sustain a loss of $2,000, or other large sum;” and in this regard the demurrer was good. In other respects the judgment sustaining the demurrer as to this subsection was error. This subsection is stricken unless appropriate and timely amendment be made.

Paragraph 46 of the demurrer, that “the allegations in paragraph 13, and in all the subparagraphs thereof, are vague, indefinite, and uncertain, and are insfficient in law to show that the defendants have not diligently and honestly administered the affairs of the Bank of Cusseta,” is answered by the rulings above made as to the subsections of paragraph 13 of the petition. As stated, this ground of the demurrer is not good. Paragraphs 14, 15, and 16 of the petition are not subject to the demurrer. Paragraph 17 of the petition is subject to ground 50 of the demurrer, in that it fails to allege facts sufficient to show that the borrowers were not proper risks or that the loans referred to were negligently made, or to indicate when said loans were made. In other respects the demurrer was not good as to this paragraph and the judgment sustaining it was error. Paragraphs 18, 19, 20, and 21 are good as against the demurrer, and the same is true of paragraph 22 of the petition.

In the 55th and last ground of the demurrer it is urged that paragraphs 6 and 7 of the petition are insufficient in law, (a) because under section 2817 of the Civil Code (1910) Bankers Trust Company was empowered to act as the fiscal agent of the Bank of Cusseta; and (b) because under article 17 of the Banking Law of 1919, the Bank of Cusseta was authorized to appoint such agents as the business of the bank might require, prescribe their duties, and fix their compensation. This ground of the demurrer is not good.

The court erred in sustaining the general and certain of the special grounds of the demurrer. Whereupon it is ordered that the ease stand for trial upon the petition in so far as it is not subject to special demurrer and in so far as the defects indicated herein shall be cured by amendment.

Judgment reversed, with direction.

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


source: Caselaw Access Project

author: Broyles, C. J.

license: Public Domain

text:
    19115.
    Mayes v. Pierce.
    Decided December 11, 1928.

      J. B. & T. B. Burnside, for plaintiff.

      M. L. Felts, for defendant.
   Broyles, C. J.

1. In tlie light of the charg'e as a whole and the facts of the ease, none of the exceptions to the charge require a reversal of the judgment.

2. Under repeated rulings of the Supreme Court and of this court, a ground of a motion for a new trial complaining of the admission of documentary evidence can not be considered by the reviewing court where the evidence is not set forth in the ground nor attached as an exhibit thereto.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    19139.
    Hall v. Continental Insurance Co.
   Luke, J.

1. It appearing from the record that the petition for supplementation of the brief of evidence in this case was presented to the trial judge within twenty days after service of the bill of exceptions was acknowledged by counsel for the defendant in error, and it further appearing from the court’s order directing that the fire-insurance policy declared upon and the other policy be sent to this court, that these documents are “true copies of the documents introduced in evidence in the trial of the ease and filed therein, and are material to a clear understanding of the errors complained of,” the contracts of insurance are properly before this court, under the Civil Code (1910) § 6149, and will be considered as a part of the record in the case.

(a) The cases of Jones v. Gill, 121 Ga. 93 (48 S. E. 688), and Cutcliffe v. Lowry, 165 Ga. 287 (140 S. E. 752), relied on by the plaintiff in error, are patently different from this case. In the first of these cases “the matter consisted of statements as to what transpired on the hearing in tlie superior court . . which did not, and could not, properly become a part of the record of file in the clerk’s office.” In the second case it was held that the Supreme Court “has no jurisdiction to change the record as made in the trial court, or to allow a change by consent of the attorneys for parties at interest.”

Decided December 11, 1928.

J. H. Paschall, J. M. Lang, for plaintiff.

Spalding, MacDougald & Sibley, Henson & Barnett, for defendant.

2. The court did not err in directing a verdict for the insurance company, since it clearly appears, from the evidence, that the plaintiff violated the following provision of the contract declared upon: “This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.” Civil Code (1910), § 2489; Morris v. Orient Ins. Co., 106 Ga. 472 (33 S. E. 430); Lippman v. Ætna Ins. Co., 108 Ga. 391 (33 S. E. 897, 75 Am. St. R. 62); Beasley v. Phœnix Ins. Co., 140 Ga. 126 (78 S. E. 722); Sherrer v. Queen Ins. Co., 23 Ga. App. 674 (99 S. E. 139).

3. None of the alleged errors in rejecting or admitting evidence are of sufficient materiality to warrant the grant of a new trial.

Judgment affirmed.

Broyles, O. J., and Blood/ioorth, J., concur.


text:
    19147.
    JONES v. THE STATE.
    Decided December 11, 1928.

      Don K. Johnston, for plaintiff in error.

      Cla/ude C. Smith, solicitor-general, James A. Branch, contra.
   Luke, J.

An information was filed before the judge of the superior court of the Stone Mountain Circuit, charging N. T. Jones with contempt of court. A rule nisi was issued requiring said Jones to appear before the bar of DeKalb superior court and show cause why he should not be dealt with as for contempt. A demurrer to the information was overruled, and, after evidence had been introduced, Jones was adjudged in contempt of court. The correctness of the judgment overruling the demurrer and of the said final judgment is duly presented for our consideration.

Omitting formal parts, the information, by paragraph, follows: “1. That on June, 1927, there was presented to his honor John B. Hutcheson, judge of the superior courts of the Stone Mountain circuit, by L. L. Ray, an attorney at law, a petition and prayer in the case of Carter Electric Company v. Mrs. Ella Dee Jones, said cause then pending in DeKalb superior court, one of the courts of said circuit. ' 2. A copy of said petition is hereto attached and marked Exhibit A. 3. That the language of said petition and prayer has a tendency to impede, embarrass, and obstruct said court in the due consideration of justice therein, and contains false and defamatory reflections upon the judicial integrity of said court. i. That N. T. Jones, a resident of Eulton county, Ga., a son of defendant in said cause, actively counseled, advised, and urged the preparation of said petition, was present at the preparation of said petition and said prayer, was conversant with its contents, carried it to his mother for her signature, and accompanied L. L. Ray to Jonesboro, where said petition was presented to your honor.”

The objectionable petition, attached as Exhibit A to the information, alleged: 1. The pending for fourteen months of “certain litigation in which your petitioner is defendant and Carter Electric Company et al. plaintiffs, same being a. bill for receiver for certain property,” which was described. “2. That various and sundry petitions and bills, both at common law and at equity, have been presented to the Hon. John B. Hutcheson, judge of the Stone Mountain Circuit for the State of Georgia; that upon these bills and petitions various orders have been entered and passed by the said Hon. John B. Hutcheson, touching the questions made in the litigation between the parties herein referred to. 3. That, without exception, the said Hon. John B. Hutcheson, when any petition has been presented to him by your petitioner, has accepted the same for consideration, and, before passing an order upon the same, would, by some means unknown to your petitioner, but she supposes by phone, communicate with counsel for the Carter Electric Company and confer with them and others secretly, and without notifying counsel for your petitioner to be present at such conference. Your petitioner alleges that she has a legal right to be represented at any conference upon any petition or bill that she has presented to the judge, which said right has been denied her in all petitions and bills presented to the Hon. John B. Hutcheson.” 4. The possession of said property was, by order of court, “conditioned upon your petitioner paying the sum of $250 per month as rent, or giving any proper bond for the same. Petitioner paid one month's rent. Proper and solvent bonds were delivered to the sheriff and refused by him.” “5. Your petitioner charges upon information and belief, and from past acts, that she will be evicted from the premises described in the petition at 10 o’clock, June 20th, and she here and now shows to the court that she is in the legal and peaceable possession of said property, and that her possession did not originate in fraud, and is not permissive only, and that she has complied with the former orders of this court and all of the bonds thereof to remain in possession of said property. Your petitioner further asserts that, with regret and humiliation, she is compelled to assert to this court that she can not get a fair, impartial, and legal hearing. The reason for this condition is unknown to your petitioner, but is very apparent to even a casual observer.” “6. Your petitioner respectfully shows to the court that she asked in the litigation herein referred to that nothing be doné except justice and right, which she stands ready and willing to do, and to abide any. order of the court that may be founded on the principles of justice and right. She claims this privilege as a citizen of the United States, and as constitutional right under the provisions of the constitution of the United States and the State of Georgia.” '“7. Your petitioner here charges that, under the former orders of this court and rulings of the Hon. John B. Hutcheson, she is about to be deprived of the possession of her property without due process of law to which she is entitled.” “8. Your petitioner herewith presents the affidavits of certain parties, which will appear by reference to said affidavits, and which said affidavits are self-explanatory, and prays that your honor, in passing your order upon.this petition, will consider.”

The prayers of the petition are: (1) that the sheriff and others be restrained from interfering with the petitioner’s possession of the property described in the petition; (2) “that your honor will conscientiously and honestly consider the subject-matter, and the questions as made in this bill as to your qualifying or disqualifying to decide any question therein made except the question as to your qualification.” 3. '“That process do issue,” etc. 4. “That your honor will pass such order as in good conscience and justice you may deem right as to the matters mentioned in this petition, whether you are qualified to do so, and, if disqualified, enter some order asserting the same, that your petitioner may go to some other judicial officer qualified, and have the questions made in this petition adjudicated in accordance with the rules of law, equity, and justice.”

The demurrer to the information follows: “1. Said rule and information set forth no cause of action or complaint for contempt against this respondent. 2. Said rule and information do not set up facts showing that the contempt alleged took place in the presence of the court or so near thereto as to obstruct the administration of justice. 3. The facts in said ease set forth in the rule and attachment do not show that respondent has been guilty of any contempt, or conduct for which the law justifies fine and imprisonment. 4. Because the information and rule show that N. T. Jones is neither an officer of the court nor a party to a suit, nor a juror, witness, or that he has disobeyed any writ, process, rule, or order of court.”

An examination of the petition attached to the information as Exhibit A, and especially of paragraphs 3, 5, 6, and 7, and of the prayers thereof, clearly shows the contemptuous nature of the petition. In this connection, see the Fite case, 11 Ga. App. 665 (76 S. E. 397), and citations.

Accepting as true, as we must on demurrer, the allegations of fact in the information, we are sure that paragraph 4 of the information fixes upon N. T. Jones full responsibility for everything contained in the petition which is the basis of the contempt proceeding.

The second ground of the demurrer is in the language of the Civil Code (1910), § 4643 (Civil Code of 1895, § 4046). In Bradley v. State, 111 Ga. 168 (1, 2) (36 S. E. 630, 50 L. E. A. 691, 78 Am. St. R. 157), where this code, section was directly up for construction, it was said: “1. The power to punish contempts is inherent in every court of record. If the court is created by the constitution, the legislature can not, without express constitutional authority, define what are contempts and declare that the court shall have jurisdiction over no acts except those specified.” “2. The provision of the constitution which declares that ‘The power of the courts to punish for contempts shall be limited by legislative acts’ does not confer such authority, but only the power to prescribe the punishment, after conviction. Consequently section 4046 of the Civil Code [of 1895], in so far as it seeks to limit the jurisdiction of a constitutional court to punish contempts to certain specified acts, is not binding upon such courts. They may go beyond the provisions of the statute, in order to preserve.and enforce their constitutional powers by treating as contempts acts which clearly invade them.” In the decision (p. 171) this language 'appears: “Among these powers was that of defining and punishing contempts of court, whether such contempts were direct, that is, committed in the presence of the court, or constructive, interfering indirectly with the administration of justice.” Clearly there is no merit in the second ground of the demurrer.

We have already reached the conclusion that the information set out facts constituting a contempt of court, and the punishment inflicted is within the rule that superior courts have the right “to punish contempt by fines not exceeding two hundred dollars, and by imprisonment not exceeding twenty days.” Civil Code (1910), § 4849 (5). The third ground of the demurrer is without merit.

Ground 4 of the demurrer is in effect that the information is defective because it shows that Jones did not belong to any class made subject to contempt under section 4643 of the Civil Code of 1910. This contention is denied by the ruling in Bradley v. State, supra, and by numerous other decisions of this court and of the Supreme Court.

No ground of the demurrer was good, and the court’s judgment overruling it was correct.

N. T. Jones was found guilty of contempt of court and sentenced to pay a fine of $200, or to serve twenty days in jail. Does the evidence support the judgment? In his answer to the rule Jones admitted paragraphs 1 and 2 of the information, and denied paragraph 3. Paragraph 3 of the answer was as follows: “Answering paragraph 3 of the petition, says that he admits that he is the son of the defendant, Mrs. Ella Dee Jones, that he was conversant with the contents of the petition as alleged, that he carried it to his mother for signature, and that he accompanied L. L. Ray, attorney for his mother, to Jonesboro as alleged; but respondent denies that he either actively counseled, or urged, or participated in the preparation of the petition, but on the other hand respondent counseled and advised against the preparation and filing of said petition as filed, and especially to the allegations in paragraphs 3, 5, and 7 of the petition, and 2 and 4 of the prayer to the petition, but was assured by counsel for his mother that the language used therein could not be construed as offensive or in contempt, but was permissive in pleading; that respondent acted solely upon advice of counsel for his invalid mother, who was bedridden at that time, and that, he was advised that the language employed in said petition was permissible under the rules of pleading in Georgia.”

N. T. Jones testified in effect that he protested against the objectionable features of the petition, but finally, upon the assurances of counsel that the petition was unobjectionable and proper, consented that it be presented to the judge as it was. It is inferable from the testimony of L. L. Ray, who had already been found in contempt of court for the part taken by him as an attorney in preparing and presenting the petition to the court, that N. T. Jones was largely responsible for the objectionable features of that petition, and that they were incorporated in the petition under Jones’s directions, and over his, Ray’s, protest. There is evidence in the record sustaining Mr. Jones’s version of the matter, and there is also evidence tending to sustain Mr. Ray’s version of it. It was also in evidence that Mr. N. T. Jones had frequently acted as his mother’s agent in handling her legal affairs; and it appears from the record in this case that Mr. Jones assisted in the conduct of the ease by examining witnesses at length.

In the light of the foregoing, and of the fifty-page brief of evidence, which we have carefully read, we are constrained to hold that, the judge did not abuse his discretion in adjudging the plaintiff in error in contempt of court.

Judgment affirmed.

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


text:
    19184.
    EYANS v. THE STATE.
    Decided December 11, 1928.

      Clement E. Sutton, for plaintiff in error.

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

Mack Evans was convicted of manufacturing liquor, and, his motion for a new trial being overruled, he brought the case to this court for review. The evidence shows that one Wilmer Harwell, a brother-in-law of the defendant, was caught at the still, pleaded guilty, and paid his fine. Harwell, admittedly an accomplice, testified that the defendant and other named persons were interested in the still and had been making liquor there with him; that they had all agreed that should any one be caught, he would take the sole responsibility for the still, and all of them would go equal parts in paying the fine; that he had assumed the responsibility, and the defendant and others had not paid their part of the fine as per agreement, and for this reason he was “turning them up.” M. A. Harwell, the father of Wilmer Harwell and father-in-law of Evans, testified that Evans admitted that the still was his and that he had been making liquor there. In addition to the evidence of the accomplice Wilmer Harwell, and the evidence of M. A. Harwell as to the confession of the defendant, there was evidence that Wilmer Harwell, who was caught at the still, was living with Evans; that there was a path which led from the still towards Evans’ house, and into a road that went to Evans’ house; that the still was about a mile from Evans’ house; that there were ■wagon tracks and automobile tracks leading from the still, and that Evans had a wagon and an automobile. There was no evidence that Wilmer Harwell had an automobile or a wagon. In addition to this the following note was introduced in evidence: “Mack: You are trying to pull such trick on Wilmer as you are trying to do. I want you to know for the last time that you can bring me $165 by 4 o’clock to-morrow, or I am going to Washington and tell Wilmer to go his rout. You all don’t bluff me with your 10-gallon whisky threat. M. A. Harwell.” This note was written to the defendant while Wilmer Harwell was in jail and before the defendant was indicted. This note could easily have been construed by the jury to mean: “If you don’t pay your part of Wilmer’s fine as you agreed to do, then I am going to Washington and tell the boy to go his route and tell about your being interested in the still and making liquor.”

The undisputed evidence as to the still will serve to corroborate the confession made by the defendant, and his confession thus supported, together with the other circumstance of the case, will serve as sufficient corroboration of the accomplice Wilmer Harwell. In the case of Schaefer v. State, 93 Ga. 177 (18 S. E. 552), Bivins, an accomplice, testified that he saw. Schaefer endeavoring to enter through a window, and later heard a pistol fire. Other evidence showed that the house was actually .entered through the window, and that the deceased was shot while asleep. There was some testimony of a contradictory nature, tending to show admissions by Schaefer. In that case it was held: “Clear and undoubted evidence of the corpus delicti will serve to corroborate a confession made by the accused, and his confession thus supported will serve as sufficient corroboration of the evidence of an accomplice.” The case sub judice is much stronger than the Schaefer case, because in that case the accomplice did not swear that he saw the defendant actually shoot the deceased, and in the instant case the accomplice did swear that the defendant actually made the liquor. Furthermore, in the Schaefer case the accomplice had previously sworn falsely, while in the instant case the accomplice had only made a false statement not under oath, as to the ownership of the still, and he assigned a reasonable motive for so doing. See also Langston v. State, 153 Ga. 128 (4) (111 S. E. 561); Thomas v. State, 18 Ga. App. 101 (1) (88 S. E. 917).

The first special ground of the motion for a new trial complains of the court’s charge on circumstantial evidence, and alleges that “a full charge on the law of circumstantial evidence was absolutely demanded.” There is no merit in this ground. “There being evidence as to a confession by the accused, the conviction did not depend exclusively upon circumstantial evidence, since a confession is direct evidence; and, in the absence of an appropriate request, it would not have been erroneous for the court to- omit to charge the law of circumstantial evidence altogether.” Thomas v. State, supra, and cases cited; Perry v. State, 110 Ga. 234 (3) (36 S. E. 781); Griner v. State, 121 Ga. 614 (2) (49 S. E. 700).

The charge complained of in the second special ground of the motion is a correct statement of the law, and was by no means unfavorable to thé accused.

Ender the facts of this case it was not error for the court to fail to charge the law of confessions, as alleged in the third special ground of the motion. There was no request for such a charge, and “in the trial of a criminal case the failure of the court to charge the law of confessions, in the absence of an appropriate and timely request, is not cause for the grant of a new trial.” Brown v. State, 154 Ga. 54 (113 S. E. 161), and cit.

The 4th special ground of the motion for a new trial is but an amplification of the general grounds. The evidence authorized the verdict, no reversible error of law is shown, and the court did mot err in overruling the motion for a new trial.

Judgment affirmed.

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


author: Bloodwobth, J.

text:
    19191.
    Newsome v. The State.
    Decided December 11, 1928.

      Hugh F. Combs, for plaintiff in error.

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

The motion for a new trial contains the general grounds only. The evidence authorized the verdict, which was approved by the trial judge, and the court did not err in overruling the motion.

Judgment affirmed.

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


text:
    19217.
    WRIGHT v. THE STATE.
    Decided December 11, 1928.

      S. B. McCall, Branch & Snow, for plaintiff in error.

      C. E. Kay, solicitor-general, K. B. Edwards, contra.
   Luke, J.

Indicted for assault with intent to murder by shooting a.pistol at Dave Dixon, and convicted of unlawfully shooting at another, I. J. Wright filed a motion for a new trial, based upon the general grounds, and upon four special exceptions to the court’s charge.

In ground é of the motion for a new trial, the movant insists that the court erred in charging that it is unlawful for a person who is not an officer to carry a pistol outside of his home or place of business without having a license from the ordinary. The criticism of this charge is that the defendant had already been convicted of carrying a pistol without a license, and that the law charged had nothing to do with this case, and the charge was harmful error. There is evidence that the defendant was pointing a pistol at his daughter, when the marshal, who was an arresting officer, appeared upon the scene, and that the shooting began at once, the evidence differing as to whether Dave Dixon, the marshal, or the defendant fired the first shot. Notwithstanding evidence to the effect that the marshal and the defendant were not on the best of terms, the jury had the right to conclude that the marshal expected trouble when he saw the defendant enter the store of his estranged wife, and that the marshal’s purpose was to perform his duty as marshal to keep the peace, and that he drew his pistol to effect that purpose, at a time when the defendant was violating the law, both by carrying a pistol without a license and by pointing the pistol at his daughter. The jury had the right to conclude that the marshal was attempting to fulfil his duty as an arresting officer. The court’s reason for this charge is clearly shown by the following words in the next paragraph of, his instructions to the jury: “If you believe I. J. Wright was in violation of any law of this State) it would be, if such were the truth of the case, the duty of the officer to arrest the defendant.” The excerpt was applicable to a phase of the case that the jury should have considered, and was not erroneous for the reason assigned.

Ground 5 complains of this excerpt from the charge of the court: “If you believe that the defendant in the case, I. J. Wright, was then and there in violation of the law of the State, in the presence of Dave Dixon, whom you believe to be an arresting officer of the State; if you believe that while so violating the law in the presence of Dave Dixon, Dave Dixon approached him for the purpose of making an arrest, or if you believe that I. J. Wright, the defendant, believed he was approaching him for that purpose, shot at Dave Dixon as alleged in the indictment, he would be guilty as charged under the indictment, unless you find under your instructions and under the evidence the defendant was justified.” The contention is that the foregoing charge was not applicable to the facts of the case, for the reason that Dixon, the marshal, “did not claim even remotely that he approached the defendant for the purpose of making an arrest,” and did not indicate to the defendant that he intended to arrest him, and for the further reason that it did not appear that Wright knew that the purpose of the marshal was to arrest him. Dixon testified: “I knew he (defendant) was not wanted in the store, knew the folks were scared of him, and I went to see what was going to happen.” We can not agree with counsel that this was a candid admission on his part that his motive was mere curiosity. Dixon was the marshal of Hahira, an arresting officer. He suspected that there was about to be trouble at a place where it was his duty to arrest any one committing a breach of the peace. The jury had the right to conclude that he intended to prevent trouble, if necessary, in a lawful way, i. e., by arresting the defendant if he were breaking the law. If the testimony of the marshal and the defendant’s daughter be true, the defendant was pointing his pistol at his daughter when the marshal entered the store. It is clear, from the evidence in the case and the defendant’s statement, that the defendant well knew Dixon. Dixon testified that he had on his badge and uniform at the time of the difficulty, which occurred in Mrs. Wright’s store in the town of Hahira. There was testimony from which the jury had the right to conclude that Dixon shot first, and there was testimony from which the jury might believe that the defendant began the shooting.- The precise manner in which the transaction occurred is very uncertain, and it was the judge’s duty to charge, as he did, the various theories presented by the evidence, leaving the jury to unravel the facts. The excerpt complained of was applicable to a theory of the case presented by the evidence, and was not error for the reason assigned.

Ground 6 of the motion for a new trial (complaining of another part of the charge) is based on the contention that there was no evidence that the marshal approached the defendant for the purpose of arresting him, or that the defendant believed that the marshal was attempting to arrest him. This contention has already been discussed, and our opinion that there is no merit in it has already been clearly indicated.

The seventh and last ground presents no error. The charge of the court upon the law of self-defense was correct; and if more specific instructions upon that subject were desired, they should have been requested. The following statement of the law from the case of Cronin v. State, 37 Ga. App. 611 (3) (70 S. E. 93), applies directly to this exception: “While it is the duty of the court, without request, to present the particular defense upon which the defendant in a criminal prosecution relies, it is not necessary, in the absence of a request, to refer specifically to the particular testimony upon which that defense is based, or to inform the jury of the defendant’s specific contentions. Groves v. State, 8 Ga. App. 691 (2) (70 S. E. 93). See also Central of Ga. Ry. Co. v. McKinney, 118 Ga. 535 (45 S. E. 430); Williams v. State, 120 Ga. 870 (48 S. E. 368); Wrightsville & Tennille R. Co. v. Gornto, 129 Ga. 204 (3) (58 S. E. 769). If the substantial law covering the issues made by the pleadings and evidence' is given in charge, and more specific instructions are desired, timely and appropriate written request therefor should be made. Anthony v. State, 6 Ga. App. 784 (3) (65 S. E. 816); Weldon v. State, 21 Ga. App. 330 (1 a, b) (94 S. E. 326).”

The evidence supports the verdict, there is no merit in any of the special grounds of the motion for a new trial, and the judgment overruling the motion for a new trial was correct.

Judgment affirmed.

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


text:
    19247.
    SALTER v. THE STATE.
    Decided December 11, 1928.

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

      A. S. Bradley, solicitor-general, contra.
   Luke, J.

The defendant was charged with murder and convicted of voluntary manslaughter, and, his motion for a new trial being overruled, he brings the cáse to this court for review.

The 1st special ground of the motion for a new trial alleges that the court erred in charging the law of voluntary manslaughter. The defendant’s' statement showed “circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice” (Penal Code, § 65), and “the law of voluntary manslaughter may properly be given- in charge to the jury on the trial of one indicted for murder, where, from the evidence or from the defendant’s statement at the trial, there is anything deducible which would tend to show that he was guilty of voluntary manslaughter, or which would be sufficient to raise a doubt as to which of these grades of homicide was committed.” Reeves v. State, 22 Ga. App. 628 (1) (97 S. E. 115).

The 2d, 3d, and 4th special grounds of the motion are based on newly discovered evidence. Some of the affidavits are not supported as required by law, and one presents evidence that is inadmissible. It is not shown that the alleged threat of the deceased against the defendant, referred to in the 3d special ground, was communicated to the accused prior to the homicide. Ellison v. State, 21 Ga. App. 259 (2) (94 S. E. 253). The State made a counter-showing; and we can not say that the judge abused his discretion in refusing a new trial on these grounds. “‘The discretion of a trial judge in refusing a new trial on the ground of newly discovered evidence will not be controlled, unless manifestly abused.’ Tilley v. Cox, 119 Ga. 867, 872 (47 S. E. 219). Where a motion for a new trial is based upon alleged newly discovered evidence, and affidavits are introduced, sustaining and disputing this ground of the motion, ‘the trial judge is the trior of the facts, and it is his province to determine the credibility of the conflicting facts and contradictory witnesses.' Hayes v. State, 16 Ga. App. 334 (85 S. E. 235).” Wright v. State, 18 Ga. App. 705 (90 S. E. 285).

Special grounds 5, 6, 8, 9, and 10 of the motion for a new trial (complaining of the refusal of the court to permit certain witnesses to answer certain questions propounded to them) are not complete and understandable within themselves. In order for this court to understand the gist of the complaints, and to know whether the questions and expected answers were material, it would be necessary to examine other portions of the record, and, under repeated rulings of the Supreme Court and of this court, this will not be done.

The remark of the court objected to in the 7th special’ground of the motion did not express or intimate any opinion as to the guilt or innocence of the accused, and was harmless to the defendant.

We have carefully considered the record and the briefs of counsel; and so far as the record shows, the trial court committed no error-of law, the evidence authorized the verdict, and therefore the judgment overruling the motion for a new trial is

Affirmed.

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


author: Bloodworth, J.

text:
    19248.
    Cone v. Hunter, executrix.
    Decided December 11, 1928.

      Peek, Randolph & Wimberly, Morris Macks, Orville D. Rogers, for plaintiff in error.

      Madison Richardson, contra.
   Bloodworth, J.

1. “The law embodied in the Civil Code, § 6152, does not in any ease authorize delay in tendering to a trial judge a bill of exceptions alleging error in a judgment rendered during a given term, for more than thirty days after the final adjournment of the court for that term. Forsyth v. Freer, 64 Ga. 281; Huff v. Brantley, 66 Ga. 599; Diets v. Fahy, 107 Ga. 325 (33 S. E. 51) ; Carter v. Johnson, 112 Ga. 494 (2) (37 S. E. 736) ; Heery v. Burkhalter, 113 Ga. 1043 (39 S. E. 406) ; Crawford v. Goodwin, 128 Ga. 134 (2) (57 S. E. 240) ; Brandon v. Akers, 134 Ga. 78 (3) (67 S. E. 540); First National Bank of Forsyth v. Taylor, 138 Ga. 119 (74 S. E. 783); Cunningham v. Strom, 144 Ga. 324 (87 S. E. 20) ; Grant v. Southern Bell Tel. Co., 145 Ga. 298 (89 S. E. 364).” Birmingham Finance Co. v. Chisholm, 162 Ga. 501 (1) (134 S. E. 301).

2. The judgment excepted to in this ease was rendered on June 27, 1928, during the May (1928) term of the city court of Decatur. That term necessarily was adjourned before the beginning of the next term, which, under the law, convened on July 16, 1928. The bill of exceptions was certified by the judge on August 25, 1928, and it is admitted by counsel for the plaintiff in error in their brief that it was presented to him on the same day. This was more than thirty days after the rendition of the judgment to which exception was taken, and more than thirty days after the adjournment of the term of court at which the judgment was rendered. Under the foregoing ruling the writ of error must be dismissed.

Writ of error dismissed.

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


text:
    19249.
    Rackley v. Burgess.
   Broyles, C. J.

The description of the property sued for in trover, as “five spotted barrow pigs, weight about 65 or 70 pounds, also three spotted gilts, weight about 65 or 70 pounds, of the value of $100,” was • insufficient to withstand the special demurrer interposed, and the overruling of tlie demurrer was an error which rendered the further proceedings in the ease nugatory.

Decided December 11, 1928.

Hill & McElvey, for plaintiff in error.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    19251.
    Bloodworth v. The State.
    Decided December 11, 1928.

      C. F. Richter, for plaintiff in error.

      Jeff A. Pope, solicitor, contra.
   Broyles, C. J.

The verdict was authorized by the evidence, and the single special ground of the motion for a new trial can not be considered, for the reason that it is not complete and understandable by itself.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    19252.
    JONES v. GREENWAY, administratrix.
    Decided December 11, 1928.

      Payne & Jones, Noah J. Stone, for plaintiff in error.

      Sims & Berman, contra.
   Luke, J.

Under the record in this case we are to decide whether or not the trial judge erred in overruling general and special demurrers to a trover petition, which, by paragraph, is substantially .as follows: (1) The defendant Winfield Jones resides in Fulton County, G-a. (2) Mrs. E. W. Greenway, the petitioner, is the duly appointed administratrix of the estate of E. W. Greenway. (3) “Defendant is in possession of 125 shares of capital stock of the General Purchasing Company of Georgia, which said General Purchasing Company of Georgia is a corporation, and said- certificate of stock being issued in the name of E. W. Greenway.” (4) “Said shares of stock in said corporation represent a part of the estate of E. W. Greenway, deceased.” (5) “Said stock is of the value of $100 per share. . . ” (6) “Defendant refuses to deliver said stock to your petitioner, or to pay her the profits thereof.” (7) Petitioner has demanded possession of said property, and the defendant has refused to deliver the same. (8) Defendant is in possession of said property.

Concurrently with the filing of the petition, plaintiff made the usual bail-affidavit, describing the property sought to be recovered as “125 shares of the capital stock of the General Purchasing Company of Georgia.” The sheriff’s return stated that the defendant, Winfield P. Jones, failed to make the bond required by law, and surrendered the property.

Defendant demurred to the petition, upon the ground that it failed to set out a cause of action, and the plaintiff amended by alleging that she was bringing the suit as the duly qualified administratrix of the estate of E. W. Greenway, deceased, and by further alleging: “That said stock is represented by certificates, numbers one to seven inclusive, in General Purchasing Company Incorporated, a corporation of Fulton County, Georgia. The first three certificates, numbers 1, 2 and 3, are for twenty-five shares each; certificate No. 4 is for twenty shares; certificate No. 5 is for fifteen shares; certificate No. 6 is for ten shares, and certificate No. 7 is for five shares. The said certificates of stock are dated December 10, 1926, and are signed by E. W. Greenway, President, and Mrs. Sara Hale, Secretary, and this suit is brought to recover said certificates of stock.”

The defendant renewed his original demurrer to the petition, and further demurred: (1) Because the amendment set out a new cause of action, in that the original suit was for 125 shares of stock, and the amendment seeks to recover certain certificates of stock. (2) “Because the said amendment seeks to convert the original bail-trover proceedings for the recovery of an intangible thing, to wit, 125 shares of stock of the General Purchasing Company of Georgia, into bail-trover proceedings for the recovery of tangible things,, to wit, the certain certificates of stock as described in the second paragraph thereof.” (3) “Because the said amendment seeks to convert the original bail-trover proceedings for the recovery of 125 shares of stock of the General Purchasing Company of Georgia into an action to recover damages for the conversion of the. certain certificates representing shares of stock in the General Purchasing Company Inc., as described in the second paragraph of the said amendment.” (4) Defendant demurs to that part of paragraph 3 of the original petition which reads as follows: “125 shares of the capital stock of the General Purchasing Company of Georgia,” upon the following grounds: (a) “Said allegations are irrelevant, immaterial, and not germane to the issues of said ease, for the reason that said suit as amended is limited to an action for the recovery of certificates of stock only.” (6), (c) “Said allegations” should be stricken because bail-trover does not lie for the recovery of “shares of stock,” they being intangible and incapable of seizure. (5) Defendant demurs to that part of paragraph 4- of the original petition which reads as follows: “That said shares of stock in said corporation,” upon the following grounds: (a) “Said suit as amended is brought to recover certain designated certificates of stock of the General Purchasing Company Inc., and not for the recovery of shares of stock in said company,” and, therefore, “said allegations are irrelevant, immaterial, and not germane to the plaintiff’s cause of action, and should be stricken from said paragraph.” (&), (c) Said allegation should be stricken because bail-trover will not lie for the recovery of “stock” in a corporation, it being intangible and incapable of seizure. (6) Defendant demurs “to paragraph 5 of plaintiff’s petition upon the ground that said suit as amended is limited to the recovery of certificates of stock in the General Purchasing Company Inc., and for this reason the value of the shares of stock in said designated company is not germane to the plaintiff’s cause of action, and does not illustrate any issue in said case, and should be stricken.” (7) Defendant demurs to paragraph 6 of the petition, because said suit as amended is brought'for the recovery of “certificates of stock,” and the refusal to deliver “shares of stock” is irrelevant, and not germane to plaintiff’s cause of action. (8) Defendant demurs to that part of paragraph 2 of plaintiff’s amendment which reads, “Said stock is represented by,” upon the following grounds: (a) “Said suit as amended is to recover certificates of stock only, in the General Purchasing Company Inc., and for this reason the allegations in said amendment, as quoted with reference to said stock, are irrelevant, immaterial, and not germane to plaintiff’s cause of action, and should be stricken from said paragraph.” (6) “Shares of stock in a corporation are intangible and incapable of being seized, and for this reason bailtrover will not lie for their recovery, and said allegation should be stricken from said petition as mere surplusage.”

A reading of the original petition, and especially of paragraph 3 'thereof, leads us to conclude that the action was for the recovery of the concrete, physical evidence of the stock, to wit, the certificates, and not of the intangible, incorporeal thing termed “capital stock,” or “stock.” If we are correct in this conclusion, the amendment, stating in so many words that the action was brought to recover described certificates of stock, did not change the original cause of action, and was properly allowed. The case of Small v. Wilson, 20 Ga. App. 674 (93 S. E. 518), very much resembles the case at bar, and, in our opinion, supports the conclusions reached above.

Neither did the court err in allowing the petition to be amended to show that the stock represented by the certificates sought to be recovered was in the “General Purchasing Company Incorporated, a corporation of Pulton County, Georgia,” instead of in the “General Purchasing Company of Georgia,” as alleged in the original petition.

In consonance with our previous rulings that the original petition set out a cause of action, and that the amendment to the petition was properly allowed, we hold that the court did not err in overruling grounds 4 and 5 of the demurrer. We see no objection to the allegation in paragraph 5 of the petition, as to the value of the stock represented by the certificates sought to be recovered, and hold that the overruling of ground 6 of the demurrer was not error. Ground 7 of the demurrer is sustained, with the right in the plaintiff-to amend paragraph 6 of the petition by alleging a refusal to deliver “certificates of stock,” instead of “stock.” Ground 8 of the demurrer is not valid.

Therefore the judgment overruling the demurrer is sustained, with direction that paragraph 6 of the petition be amended to meet our ruling thereon.

Judgment affirmed, with direction.

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


text:
    19254.
    Dennis v. Rainey.
    Decided December 11, 1928.

      B. B. Lambert, B. G. Jenlcins, for plaintiff.

      M. F. Adams, for defendant.
   Broyles, C. J.

Under the facts of the case as disclosed by the record, the trial judge (sitting by consent without the intervention of a jury) did not err in rendering the judgment excepted to.

Judgment affirmed.

Luhe and Bloodworth, JJ., concur.


text:
    19257.
    Kennemore v. Black.
    Decided December 11, 1928.

      A. B. Tollison, for plaintiff in error.

      Vandiviere & Tallant, contra.
   Broyles, C. J.

The evidence adduced in the justice’s court amply authorized the verdict and judgment in favor of the plaintiff, and the defendant’s petition for certiorari, assigning error upon the verdict and judgment because they were contrary to law and the evidence, was without merit and should have been overruled. Substantially the same result,was reached by the dismissal of the petition.

Judgment ajw-med.

Luke and Bloodworth, JJ., concur.


author: Broyles, O. J.

text:
    19258.
    Anderson v. The State.
   Broyles, O. J.

1. The ground of the motion for a new trial complaining of the rejection of certain evidence is without merit, since the identical evidence is included in the brief of evidence transmtted to this court.

2. Under the evidence adduced and the defendant’s statement at the trial, there were legally possible only three verdicts, to wit, guilty of an assault with intent to murder, guilty of unlawfully shooting at another, or an acquittal. Therefore the court did not err in failing to instruct the jury upon the law of assault and battery, or upon “the grade of simple assault,” as complained of in the motion for a new trial.

Decided December 11, 1928.

J. B. Wall, D. E. Griffin, for plaintiff in.error.

T. Hoyt Davis, solicitor-general, contra.

3. The remaining special grounds of the motion for a new trial are without merit.

4. The evidence amply authorized the verdict.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    19259.
    REID v. THE STATE.
    Decided December 11, 1928.

      Hallie B. Bell, Julian F. TJrquhart, for plaintiff in error.

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

C. E. Beid was convicted of assault with intent to murder James O. Walker, and, his motion for a new trial being overruled, he brought the case to this court for review.

The contention of the State is that on the afternoon of March 3, 1928, some young white men and some negroes were engaged in a fight when the prosecutor in this case came up, but refused to take part in the difficulty, and, after Avatching the fight for a short time, went on to town. The white men engaged in the afternoon fight, incensed because Walker would not help them fight the negroes, went to Macon and informed the defendant C. F. Eeid and other friends that Walker had assisted the negroes in the fight during the afternoon. Eeid armed himself with a pump-gun, and, together with several other men, started in automobiles to the place where Walker resided with his brother, for the purpose of killing the prosecutor. They parked their cars about 200 yards from the prosecutor’s home, and, while they were so parked, the prosecutor’s'brother, Euss Walker, drove by in his car. Eeid stopped him and told him that he intended to kill his brother, the prosecutor, and tried to prevent Euss Walker from going to the house, but he drove on anyway. The defendant and his associates then proceeded towards Walker’s house. The prosecutor heard them coming and endeavored to conceal himself in the grass. As the conspirators approached, the defendant was heard to say: “A man who will do that trick, I am going to kill him. I will die and go to hell to-night or kill him, one.” When it became apparent to the prosecutor that the conspirators were approaching the house along a course which would cause them to walk directly upon him as he lay concealed in the grass, he got up and ran, and, as he ran, at least two of the conspirators began firing pump-guns at him, and one of them was the defendant. A great many shots were fired, but only two took effect, one in the hip and one below the shoulder-blade, which ranged diagonally across the chest, perforated the right lung, and lodged in the wall of the chest. The doctor’s testimony showed that Walker was shot in the back “just below the left shoulder-blade, and the X-ray showed later the bullet lodged between the seventh and eighth ribs in the front part of the chest.” The doctor testified also that “the instrument seemed to be a pistol-ball or buckshot, because it was larger than an ordinary shot used in a shotgun.” In the contentions of the defendant he made no explanation of why he carried with him to the scene of the shooting a pump-gun loaded with buckshot. The sheriff testified that when he saw the defendant that night after the shooting the defendant “was drinking pretty noticeably.”

Eeid admitted that he shot at the prosecutor, and admitted that with a pump-gun in his hand he told the prosecutor’s brother, as he started to drive by, to “wait a minute,” but his contention was that one Green had been cut by one of the negroes during the fracas in the afternoon; that Green was at the hospital, and had left his truck at or near the place where the shooting that night took place; that he (Reid) and his associates went out there .to get Green’s truck; that when Russ Walker drove by that, Jim Walker, the prosecutor, stepped out of some bushes and asked Russ to get out of his car, get his gun, and said, “We will kill the whole God damned bunch;” that Jim Walker shot at the defendant three or four times, and when he did, the defendant returned the fire and came to town.

To state the contentions as set out in the foregoing statement of facts is to state in substance the evidence of the respective parties. Where the evidence is conflicting its credibility is for the jury, and we can not invade the province of the jury. This evidence, the interest of the witnesses, and all the circumstances surrounding the case amply authorized the-jury to conclude that the defendant and others, while under the influence of liquor, went out to kill the prosecutor, Walker, because they believed that he helped the negroes in a fight that afternoon with white men. The fact that the prosecutor was shot in the back is a strong circumstance supporting the theory of the State that he was running from the defendants, rather than facing them and shooting at them. No gun or pistol of the prosecutor was ever found, so far as the record shows. The defendant failed to explain why he carried a pump-gun loaded with buckshot on such a friendly mission as he contended he was engaged in. Turner, Bass, McConnell, Cook, and Homer Reid, witnesses for the defendant C. F. Reid, were all in the party with Reid at the time he shot Walker, and consequently might reasonably be presumed to be interested in his behalf. Green, another witness for the defendant, was the one who was cut by a negro during the fight in the afternoon when Walker refused to help fight the negroes. Some of the parties who were in the fight with the negroes during the afternoon, or at least present, were also with Reid when he shot Walker that night, which also tends to support the State’s contention.

The first special ground of the motion for a new trial complains of the following testimony by Russ Walker: “I told my brother, after I saw he was shot, that he would have to go to the hospital, and he said he was afraid to go back by there, and he said they were all drinking and I better not carry him back by there, and I knew it was either to carry him or he would die, and when I got where they were they had done left, and I passed them about a half a mile up the road coming to town.” This testimony was objected to on the ground that the defendant was not present, and that it took place too late to be part of the res gestae. The admission of this testimony will not require a new trial. In the first place, we can not say that' it was not a part of the res geste. While the exact time of the conversation is not shown, the circumstances do show that it took place within a few minutes after the shooting and while the prosecutor was fleeing to save his life. See Walker v. State, 137 Ga. 398 (3) (73 S. E. 368). Furthermore, part of this evidence.was unquestionably admissible, and the evidence was objected to en bloc. See Barnard v. State, 119 Ga. 436 (3) (46 S. E. 644). Furthermore, the alleged objectionable part of the testimony showed that the prosecutor was afraid to go back where the defendants were, and this is undisputed. Furthermore, when this evidence was objected to, the court replied, “I will let it in for the present;” and, so far as the record shows, no’ further objection to this evidence was offered. “Where the court, over objection, admits certain evidence, with the statement that the objection will be passed upon at a later stage of the trial, it is incumbent upon the objecting party, if the evidence be inadmissible, to direct the court’s attention thereto either before or at the close of the testimony, and to move to exclude it; and upon his failure to do this he will be-held to have waived his objection.” Cawthon v. State, 119 Ga. 396 (7) (46 S. E. 898). See also Hix v. Gulley, 134 Ga. 547 (1) (53 S. E. 890).

The 3d special ground of the motion alleges that the court erred in refusing to permit a witness for the defendant to testify: “I did not see Walker shoot at Reid. I saw him with a gun.” This ground shows that the time that the prosecutor had the gun was a month previous to the shooting in the instant case; and since the witness stated that he did not see Walker shoot at Reid, the refusal of the court to permit the defendant to prove merely that Walker had a gun a month prior to the difficulty under consideration was not harmful to the accused.

The 3d, 4th, and 5th special grounds of the motion allege error because the court admitted testimony as to the fight that occurred during that afternoon between the negroes and the young white men. This evidence was admissible to show motive. The State contended that it was the failure of the prosecutor to engage in this fight that caused the defendant to try to kill the prosecutor. Furthermore, reference to the defendant’s statement shows that the defendant himself referred to this fight in his statement. Evidence of the defendant’s motive in a case of assault with intent to murder is always relevant. Boone v. State, 145 Ga. 37 (1), 39 (88 S. E. 558).

The failure of the court to charge the law of voluntary manslaughter, as alleged in the 6th ground of the motion, will not require a new trial. Under the evidence, the defendant either shot the prosecutor with intent to kill and without justification, or shot him without intent to kill and without justification, or shot him in self-defense after the prosecutor shot at him. The charge in its entirety was fair to the accused.

The charge complained of in ground 7 when considered in connection with the remainder of the charge- of the court is not erroneous. The court charged fully on the burden of proof, and that the jury should be satisfied of the defendant’s guilt beyond a reasonable doubt, before they could convict; and the charge clearly showed the distinction between assault with intent to murder, shooting at another, and justifiable homicide.

Grounds 8, 9, and 10 deal with the court’s failure to charge the jury with reference to their right to recommend that the accuáed be punished as for a misdemeanor. The record discloses that the court omitted to charge this principle of law until after the verdict had been published; but the record discloses also that the jury rendered a verdict of guilty and fixed the punishment at a minimum and maximum of five years, and after the verdict was read in court, but before the jury was discharged, the trial judge charged the jury as to their right to recommend that the accused be punished as for a misdemeanor, and they retired, and, after considering the matter again, returned the same verdict. To have failed to charge this principle of law would have been reversible error; and to charge it after the verdict was published was error, and under different circumstances could have been reversible error. However, this law deals only with the punishment of the accused, and not with his guilt, and the jury had already found him guilty, and this irregularity in charging, the jury tended to help rather than harm the accused. When a jury returns a verdict of guilty without recommendation, and the judge tells them that they can recommend, and sends them back to their room to reconsider, their natural impression will be that the judge thinks they should recommend. The jury in this case had full opportunity to recommend that the accused be punished as for a misdemeanor, and the defendant was not harmed by this irregularity. The decisions that harmless error in a charge will not require a new trial are numerous. See, in this connection, Geter v. State, 22 Ga. App. 264 (95 S. E. 877); Nalley v. State, 11 Ga. App. 15 (3) (74 S. E. 567).

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

Judgment affirmed.

Broyles, C. J., and Bloodworih, J., concur.


text:
    19265.
    BRYANT v. THE STATE.
    Decided December 11, 1928.

      L. L. Woodward, for plaintiff in error.

      T. Hoyt Davis, solicitor-general, contra.
   Bloodworth, J.

We will enlarge upon headnote 1 only. Special ground 1 of the motion for a new trial complains that “the court erred in allowing the witness, Dr. Welchel, to testify in said case after the State had closed its case and after the defendant had closed his case, and after the argument both for the State and movant had been made to the jury. The admission of the testimony of said witness, Dr. Welchel, was prejudicial to the interest of the accused and was not submitted in the order of proof provided by law.” This ground is not in proper form for consideration by this court.' It does not appear what the evidence was to which exceptions are now taken, nor that this evidence was objected to. In McNeal v. State, 165 Ga. 302 (140 S. E. 885), it was held: “Assignments of error in admitting or in excluding evidence must, in order to receive consideration on review, be complete in themselves without reference to other parts of the record. The evidence referred to, the offered objections, and the ruling of the trial court in each instance should be embodied severally in each ground of exception.” In Ga. & Fla. Ry. Co. v. Stapleton, 143 Ga. 46 (84 S. E. 120), it was held that “A ground of a motion for a new trial which assigns error in the admitting of evidence ‘ over objection’, but which does not show what objection was made’to the evidence offered, is insufficient to invoke a ruling by this court.” In Beese v. State, 34 Ga. App. 600 (1) (130 S. E. 920), this court held that “the reopening of a case is always in the sound discretion of the trial judge.” See Harrison v. Powers, 76 Ga. 220 (4). As it does not appear from this -ground of the motion what the evidence was, that it was objected to when offered, or how it was prejudicial to the cause of the accused, the rulings in the foregoing cases dispose of this ground of the motion. In any event the matter was in the discretion of the trial judge, who did not abuse his discretion.

Judgment affirmed.

Broyles, C. J., and Lulce, J., concur.


text:
    19270.
    Butts v. The State.
    Decided December 11, 1928.
   Broyles, C. J.

The verdict was amply authorized by the evidence, and the motion for a new trial was based upon the usual general grounds only. Judgment affirmed,.

Luhe and Bloodworth, JJ., concur.

W. U. Key, Fleming Jordan, for plaintiff in error.

Joseph B. Dulce, solicitor-general, contra.


text:
    19282.
    Lowry v. The State.
    Decided December 11, 1928.
   Broyles, O. J.

The evidence was not sufficient to authorize the defendant’s conviction of the offense charged, and the refusal to grant a new trial was error.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

J. L. Wallace, Porter '& Mebane, for plaintiff in error.

J. F. Kelly, solicitor-general, contra.


text:
    19286.
    MORTON v. THE STATE.
    Decided December 11, 1928.

      C. L. Harris, for plaintiff in error.

      T. Hoyt Davis, solicitor-general, contra.
   Luke, J.

The defendant was convicted of possessing and selling intoxicating liquors. He excepted to the overruling of his motion for a new trial. The only special ground of the motion for a new trial is based on alleged newly discovered evidence to the effect that the defendant was illegally arrested, and illegally detained by the officer until a witness for the State could be procured and made to identify him, and thus his constitutional rights were violated, for the reason that he was forced, against his will, to produce this evidence against himself. Since the arresting officer testified in the case, the movant or his counsel could have asked him then if he had a warrant at the time he arrested the defendant, and, on his replying in the negative, could have made objection to the alleged objectionable testimony of the witness who identified him, and thus the objection would have been made at the trial instead of being, incorporated in the motion for a new trial. The movant’s failure to do this might have justified the trial judge in concluding that due diligence was not exercised. However this may be, the supporting affidavits required in cases of newly discovered evidence do not come up to the rule laid down in the Civil Code, § 6086.

The defendant introduced no evidence and made no statement. The evidence for the State authorized the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    19287.
    Kidd et al. v. The State.
    Decided December 11, 1928.

      M. B. Eubanks, for plaintiffs in error.

      John C. Mitchell, solicitor-general, contra.
   Bloodworth, J.

1. When read as a part of the entire charge, there is nothing in the instructions complained of that requires a new trial.

2. Under the qualifying note of'the trial judge, there is no merit in the ground which alleges error in admitting evidence as to a car broken open.

3. The court did not err in permitting a witness to testify that the “ears named in the indictment contained merchandise and other things of value.” The indictment alleged that the accused entered the cars “with the intent to steal goods, wares, freight, and other things of value being therein. ”

4. The evidence supports the verdict, which has the approval of the trial judge; and, as no error of law was committed, the judgment must stand.

Judgment affirmed.

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