text:
    18325.
    SAVANNAH MOTOR CAR CO. INC. v. BUTLER.
    1. Though conflicting, the evidence is sufficient to withstand the attack of the general grounds of the motion for a new trial.
    2. Where an automobile is sold under a retention-of-title-contraet' and the seller elects to sue in trover instead of on the contract, any special stipulations in the contract that might affect the rights of the parties if the suit had been to enforce the contract can not be considered in the trover suit.
    3. There is no merit in the contention that the court erred in so instructing the jury as to exclude the special stipulations in the contract.

      (a) There having been no request to charge as to the burden of proof resting upon the defendant to establish his plea, failure to charge on this topic will not require a new trial.
    New Trial, 29 Oye. p. 791, n. 15; p. 827, n. 45; p. 942, n. 95.
    Sales, 35 Cyc. p. 512, n. 25; p. 518, n. 97.
    Trial, 38 Cyc. p. 1693, n. 55; p. 1750, n. 16.

      4. The excerpt from the charge of the court complained of upon the subject of the time when demand was made for the automobile was not, for any reason pointed out in the record, erroneous.
    Decided November 15, 1927.
    Trover; from city court of Savannah—Judge Freeman. May 13, 1927.

      I. G. Fa/rihmg, James T. Sill, N. J. Norman, for plaintiff.

      Wilson (Si Rogers, for defendant.
   Luke, J.

Plaintiff sued in trover for an automobile sold under a retention-of-title-contract, alleging that the automobile was worth $220, and asking for a money verdict. Defendant denied all the material allegations of the petition, and pleaded further that he purchased an automobile from the plaintiff in March, 1926, for $200, paying $100 cash on it; that the car proved to be worthless; that defendant returned it to plaintiff, who turned over to him the car described in the petition, with the statement that defendant was to keep it until plaintiff could furnish him with a satisfactory car; “that the car described in the petition proved totally worthless, and defendant notified petitioner that he did not want it and could not make any use of it, and requested that he send for the ear, which he agreed to do;” that defendant had at all times been willing and anxious' to deliver said car to petitioner, and so informed petitioner’s agent, and instructed the party with whom the car was stored to deliver it to petitioner when he called for it; that in addition to the $100 paid on the first car, defendant expended' $13 in trying to get said cars to run; and that defendant have a judgment for $100.

The jury found a verdict for the defendant for $100. The plaintiff excepts to the overruling of his motion for a new trial.

Though sharply conflicting as to the value of the automobile and the payments made thereon, and in other respects, the evidence is sufficient to withstand the attack of the general grounds of the motion for a new trial.

Ground 1 of the amendment to the motion for new trial, complaining that the court erred in admitting the retention-of-title-contract only for the purpose of showing title, when as a matter of fact it contained a statement that the defendant had examined said automobile and accepted it in its then condition, and contained another clause waiving all claims for damages arising under the contract, is controlled adversely to the plaintiff in error by the following rule enunciated in Ayash v. Georgia Show-Case Co., 17 Ga. App. 467 (2) (87 S. E. 689) : “The plaintiff having elected to bring his suit in trover, instead of suing upon the contract, the admission in evidence, over appropriate objection, of the written contract between the parties, for any other purpose than to show title in the plaintiff, was error. Any special terms or stipulations in the contract that might affect the rights of the parties if the suit had been to enforce the contract can not be considered in a trover suit.” See also City of Jeffersonville v. Cotton States Belting Co., 30 Ga. App. 470 (9) (118 S. E. 442). That portion of this ground which complains in effect that the court’s ruling excluded pertinent evidence that after the original contract for $300 was made the amount due thereon was reduced to $253.85 and a renewal note given therefor, and that subsequently several payments were made reducing the last-mentioned note to $218.50, the amount sued for, is without' merit. Neither the original contract nor the original note would have shown these facts.

There is no merit in the contention that the court erred in so charging the jury as to exclude consideration of the provisions in the contract, that the defendant had examined the automobile and accepted it in its then condition, and that he waived all claims for damages as against the agreement. See cases cited above. The complaint that the court erred in failing to charge the burden resting upon the defendant in establishing his plea is without merit, under the following rule: “No request being made to charge as to the burden of proof, or the preponderance of evidence, mere failing to charge on these topics will not require a new trial.” Askew v. Amos, 147 Ga. 613 (5) (95 S. E. 5).

The excerpt from the charge of the court complained of upon the subject of the time when demand was made for the automobile was not, for any reason pointed out in the record, erroneous.

Judgment affirmed.

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


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    18334.
    McCLUSKEY v. THE STATE.
    The special grounds of tlio motion for a new trial show no cause for. a reversal', and there being some evidence to support the verdict, this court can not say tlikt the trial judge erred in overruling the motion for a new trial.
    Criminal Law, 16 C. J. p. 930, n. 93; 17 C. J. p. 252, n. 16; p. 254, n. 51; p. 267, n. 99.
    Disturbance of Public Meetings, 18 C. J. p. 1401, n. 13.
    Decided November 15, 1927.
    Disturbing religious assembly; from city court of Jefferson— Judge 'Ayers. June 22, 1927.

      S. W. Davis, Pemberton Cooley, E. G. Cooley, for plaintiff in error.

      G. W. Westmoreland, solicitor, contra.
   Luke, J.

The defendant was found guilty of disturbing divine service, and assigns error on the overruling of his motion for a new trial. The substance of the testimony was that Deacon Rake-straw, the prosecutor in this case, had been or was about to be “uncrowned,” and tvas registering his objections by persisting in reading a paper, over the strenuous objections of the presiding officer and four fifths of the congregation, including the defendant. Provoked by the dogmatic determination of the prosecutor to enlighten the congregation as to the contents of this paper, the defendant (who was.not the presiding officer) rose in his place and admonished Deacon Rakestraw to “set down, or I will knock you down with my fist,” which remark “disturbed” Deacon Rakestraw and his sympathizers, though it apparently met with the entire approbation and approval of a majority of the congregation. The defendant > insists that the meeting was lacking in the quality of divineness which'should characterize such a meeting, and proof of which is essential to a conviction under this charge. He insists also that the equilibrium of this alleged spiritual body was already upset before he made this remark, and that there were two rival, rowing, and belligerent factions in the church, and that his prosecution is but an effort to settle in the courts the respective rights of the unreconciled church factions.

Were we passing on the case as a jury, whose exclusive province it is to pass on the facts and the credibility of the witnesses, we might be inclined to agree with the defendant; especially so since there is some evidence tending to show that the prosecutor was actuated by a spirit of revenge because he had been “uncrowned,” and because, after the defendant had come to him and apologized for the remark in question, the parents of the defendant did not also come to the prosecutor and do homage. However, regardless of which church faction may have been right (which is not a matter within the jurisdiction of this court), and regardless of the fact that the prosecutor himself may have been equally guilty of disturbing the service, these things would not justify, in law, the disturbance by the defendant. The statute provides that “Any person who shall . . in any manner disturb a congregation of persons lawfully assembled for divine service, and until they are dispersed from such place of worship, shall be guilty of a misdemeanor.” While the evidence was conflicting, there was some evidence of every' essential element of this crime. There was some evidence to show that they were assembled for divine service, that at and during this assemblage they were engaged in preaching, singing, and praying, that the remark which the defendant admitted making disturbed certain members, and that ’“there was no disturbance before that.” The jury believed this evidence, as shown by their verdict, which has the approval of the trial judge.

The special grounds of the motion for a new trial show no cause for a reversal; and, there being some evidence to support the verdict, this court can not say that the trial judge erred in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    18337.
    PULLEN v. POWELL.
    The evidence in this case supports the verdict. The special grounds of the motion for a new trial disclose no reversible error; and the court did not err in refusing to grant a new trial.
    Appeal and Error, 4 O. J. p. 864, n. 34.
    Bills and Notes, 8 C. J. p. 1072, n. 85.
    New Trial, 29 Cyc. p. 832, n. 60.
    Decided November 15, 1927.
    Mortgage foreclosure; from Calhoun superior court—Judge McLaughlin presiding. April 2, 1927.

      A. L. Miller, for plaintiff. E. L. Smith, for defendant.
   Luke, J.

J. H. Pullen, as transferee of his father, J. K. Pullen, the original payee, sued R. R. Powell on a promissory note dated May 19, 1922, due November 19, 1922, and transferred February 4, 1924. The note was originally for $833.51, but prior to the transfer a credit of $433.51 was entered thereon; and the plaintiff sought to recover the balance due, $400, with interest and attorney’s fees.

The defendant pleaded that the note was transferred after maturity; that the plaintiff was not an innocent purchaser for value; that J. K. Pullen owed the defendant $550 for board for his wife from August 1, 1922, to “the present time,” and for board for himself at $1 per day for blank days; that the plaintiff was not the owner of the note, had no financial interest therein, and was only seeking to collect it for the use of his father, the true owner; that J. K. Pullen, knowing of his said indebtedness to the defendant, was using his son’s name in an effort to defeat the defendant’s said set-off; that the plaintiff likewise knew this, and was co-operating with his father for such purpose; that after the said board bills became due, J. K. Pullen, who was then the owner of the note, abandoned his wife, conveyed all his property to others, and left the State of Georgia for the purpose of evading his wife’s alimony and the said set-off; and that the plaintiff was well aware of all these facts.

There was no demurrer to the answer, the case went to trial, the jury rendered a verdict against defendant for $104, with interest and attorney’s fee, and the plaintiff excepted.

When this case Avas here before (see Pullen v. Powell, 35 Ga. App. 333, 132 S. E. 922), this corrrt, after stating that “when a negotiable paper is sued on by a holder or indorsee, received under dishonor, no set-off is alloAvod against the original payee, except such as is in some way connected with the debt sued on, or the transaction out of which it sprung,” and holding that the court erred in directing a verdict for Powell, further held, that “while it is true that 'if the plaintiff sues for the benefit of another person, a set-off against the beneficiary shall be allowed,’ a verdict for the defendant in the instant case could not be directed on this principle of law, since the evidence for the defendant, Avhen taken by itself, did not conclusively show that the plaintiff was not the owner of the note assigned to him,' and the plaintiff on his part testified that he in fact became by purchase the holder and owner of the note sued on.” We therefore take it that the controlling question here is whether or not there was any evidence to sustain the verdict based on defendant’s plea.

The following appears from the evidence: On. January 19, 1925, J. H. Pullen wrote the defendant a letter wherein he called attention to “your note . . in favor of my father, J. K. Pullen,” stated that $435.87 was due thereon, and further wrote, “I will thank you to make prompt settlement of above amount at an early date, as my father has some obligations for which these funds are very much needed.” In reply to this letter the defendant wrote J. H. Pullen that he had an adjustment to make with J. K. Pullen, and requested the latter’s address in order that the defendant could take the matter up with him and adjust it. The defendant received no reply to this letter, but on February 20, 1924, about a month later, J. H. Pullen wrote the defendant from Bainbridge, Ga., stating that he was the owner of the note, and demanding payment thereof. The note was transferred by J. K. Pullen to J. II. Pullen on February 4, 1924, in California. The defendant testified, that in August, 1922, J. K. Pullen and his wife came to board with him; that'on November 5, 1922, prior to the maturity of the note, he and J. K. Pullen entered into a verbal agreement that the defendant should make the payment credited on the note, and that the note should be extended twelve months; that it was agreed at the same time that the matter of board should be adjusted, and that if the board amounted to more than the balance due on the note, J. K. Pullen was to pay the defendant the difference; that while no price was then .fixed for the board, it was understood that a reasonable amount was to be paid; that in August, 1923, the board for the wife was fixed at $25 per month, and J. K. Pullen, being with defendant irregularly, was to pay $1 a day for the time he was actually present; that J. K. Pullen owed board for at least one hundred days; that at the time the note became due under the said verbal extension agreement the defendant wanted to adjust it, but was unable to locate J. K. Pullen. J. H. Pullen testified, that he bought the note sued on from J. K. Pullen; that he assumed a note due the Bank of Meigs, signed “J. II. Pullen, C. T. Pullen, P. W. Curies,” given in settlement of a note clue the bank by J. K. Pullen; that on January 23, 1925, he gave his check for $438.99 to pay off the last-mentioned note, and that this payment was part of the consideration for the note sued on; that on June 23, 1925, the plaintiff gave his check for $406.95 in payment of a note given by him and his brother to take up a note on which J. K. Pullen had become liable as security, and that this was a part of the consideration for the note sued on; that ■when the note sued on was transferred to him he agreed to take care • of the obligations stated above; that while the total of the two cheeks greatly exceeded the balance due on the note sued on, there were other transactions between him and his father; that before J. K. Pullen left Georgia for California he deeded to the plaintiff, for a consideration of only $1 and love and affection, 250 acres of land in Mitchell county worth from $20 to $25 per acre, and deeded to the plaintiff and another son two lots in Cotton, Ga., worth $350; that said two transactions last mentioned had nothing to do with his purchase of the note sued on; that at the time this suit was brought the plaintiff had not paid a dime on his father’s obligations to the banks; that he could not say that J. E. Pullen had deeded away all of his property before leaving Georgia, but thought the latter had left some property in Cotton, Ga.; that he did not help his father leave Georgia to defeat payment of alimony, and that the question was not discussed at the time J. E. Pullen deeded said land to him without other consideration than love and affection; that when the deed was made he did not know of any set-off against the note sued on, unless the defendant’s letter to him imparted such information, and that his recollection was that it did not.

We can not say, from the record presented to us, that the verdict was without evidence to sustain it. There appears to be no point to the fourth ground of the motion for a new trial, complaining that attorney’s fees were proved and not allowed, since it appears from both the copy of the verdict and the copy of the judgment in the record that such fees were awarded the plaintiff.

In the fifth ground of the motion it is contended that since the plaintiff was an innocent transferee of the note sued on, and since the board bills were no part of the consideration of the note, the defendant could not set them off against the note. Under the pleading and the evidence, we see nothing in this ground. See Powell v. Pullen, supra, paragraph 2.

The next and last ground of the motion complains that the - court, in charging the jury, erred in saying, “If the plaintiff is not the owner, holder, and transferee of the note in fact, but is suing for the benefit of J. K. Pullen,” etc. The alleged error is that there was no evidence disputing that of J. II. Pullen that he paid for the note, and that the defendant’s plea was not supported by the evidence. It appears, from what has already been said, that, in our opinion, this charge of the court was applicable to a very important issue in the case.

Judgment affirmed.

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


text:
    18343.
    LAW v. MULLIS, for use, etc.
    The evidence as to the damages in this case was conflicting, and the court erred in directing a verdict for the plaintiff.
    Damages, 17 C. J. p. 1057, n. 56; p. 1058, n. 60.
    Decided November 15, 1927.
    Complaint on bond; from city court of Eastman—Judge O. J. Franklin. June 2, 1927.

      D. D. Smith, for plaintiff in error. W. B. Smith, contra.
   Luke, J.

0. N. Mullis, for use of Standard Motors Finance Company, brought an action for damages in the sum of $339.58 and interest, against T. E. Law, as security on a forthcoming bond given in a proceeding to foreclose a mortgage on a certain automobile. The court directed a verdict for the full amount sued for, and the defendant excepted.

It appears from the brief of evidence that the forthcoming bond was given on April 30, 1924, and that the automobile was surrendered to the sheriff three or four days before it was sold by him on the first Tuesday in February, 1925. under the said foreclosure proceeding, for $83. The attorney for the plaintiff testified that when the automobile was released under the bond it was worth $400, but that when it was delivered to the sheriff to be sold it had deteriorated in value and brought only $57.77 net to his client. C. N. Mullis, the sheriff, testified, that the car was in pretty good condition when it was released under the bond, and that it was in about the same condition when delivered to him to be sold; that frequently property fails to bring its value at sheriff’s sale; that the plaintiff’s attorney bought in the car and left it with him to sell for what it was bid in at, and that in a few days the witness sold the car for what it brought at sheriff’s sale. T. E. Law testified, that both at the time it was surrendered to the sheriff to be sold and at the time of the sale three or four days later the automobile was worth between $350 and $400, and that it was of the same value when delivered to his principal under the forthcoming bond; and that when the plaintiff’s attorney requested the witness to purchase the car on the sale day the witness told him he did not want it.

Section 0043 of the Civil Code (1910) reads as follows: “Whenever personal property is levied upon under any judicial process from the courts of this State, and a forthcoming bond is given for the same, the measure of damages to be recovered upon such bond shall be the value of the property at the time of its delivery under the bond, with interest thereon; and if the property shall deteriorate in value, by reason of being used by the person giving the bond, or otherwise, and shall then be delivered up to the officer making the seizure, such officer or the plaintiff may recover on the bond ihe difference between ihe value at ihe time of ihe delivery of the property under the bond and its value when turned over to the officer malcing the levy, with interest thereon [italics ours]. The amount of damages shall in no case exceed the amount due on the execution levied.” We find no-support, either in law or in logic, for the contention that the plaintiff in error is irrevocably bound by the price for which the automobile was sold at sheriff’s sale. Why the evidence that the automobile had not deteriorated in value and was worth from $350 to $400 both when delivered to the sheriff to be sold and when sold by him should not be considered at all we are unable to see. Clearly, under the evidence, it was the jury’s duty, and not the court’s, to fix the damages. The direction of a verdict was error.

The fact that the forthcoming bond was conditioned to “deliver the property at the time and place of sale,” and bound the principal and security “unto C. N. Mullis, sheriff,” is not for consideration under the record. In this connection see Glass v. Austin, 28 Ga. App. 311 (2) (111 S. E. 84).

Judgment reversed.

Broyles, G. J., and Btoodworlh, J., concur.


author: Ltjke, J.

text:
    18351.
    Pearce v. Clemons.
    Appeal and Error, 4 C. J. p. 833, n. 57; p. 838, n. 99.
    Decided November 15, 1927.
    Complaint; from city court of Macon—Judge Hall. June 36, 1937.

      Edw. Miraglia Jr., for plaintiff in error.

      T. A. Jacobs Jr., Charles E. Garrett, contra.
   Ltjke, J.

Clemons sued Pearce upon a series of promissory notes, and, as against the plea of the defendant, recovered judgment. The motion for a new trial, complaining that the evidence did not authorize the verdict, and that the court’s charge unduly stressed the question of the burden of proof to be carried by the defendant in order to sustain his plea, was overruled. Held, that the overruling of the motion for a new trial was not erroneous for any reason pointed out in the record.

Judgment affirmed.

Broyles, O. J., and Bloodioor-th, J., eoneur.


text:
    18378.
    JOHNSON v. THE STATE.
    On the trial of one charged with the offense of possessing whisky it was not error to admit evidence that about two months after the date of the offense charged a large quantity of' whisky was found at the defendant’s place of business; and the court did not err in the instructions given to the jury as to the purpose for which evidence of transactions similar to the offense charged was admissible.
    The evidence authorized the conviction of the accused.
    Criminal Law, 16' C. J. p. 605, n. 16 New; p. 850, n. 23.
    Decided November 15, 1927.
    Certiorari; from Fulton superior court—Judge Humphries. July 9, 1937.

      C. G. Bailie, for plaintiff in error.

      Boy Dorsey, solicitor, Carlton W. Binns, solicitor, John A. BoyJcin, solicitor-general, J. W. LeGraw, contra.
   Luke, J.

1. The defendant was convicted in the criminal court of Atlanta for possessing whisky. He carried his case by certiorari to the superior court of Fulton County, and now excepts to and assigns error on the judgment of the superior court overruling the certiorari. Under all the facts of the case it was not error for the trial judge to admit evidence that on another occasion, about two months after the date of the offense charged, a large quantity of whisky was found at the defendant’s place of business. “This evidence was admissible to prove scienter, or guilty knowledge of the accused, and to show his intent or motive under the circumstances.” Terry v. State, 36 Ga. App. 305 (136 S. E. 476), and cit.

2. Neither did the court err in charging as follows: “This defendant is on trial in this case for a particular offense charged against him in this accusation, and not on account of any other alleged offense, or offenses. Where knowledge, motive, intent, plan, scheme, design, good or bad faith, or other matters dependent upon a person’s state of mind are involved as material elements in the particular offense for which the defendant is on trial, evidence of the defendant’s conduct with reference to similar transactions is admissible for the consideration of the jury in so far only as they may tend to illustrate the state of the defendant’s mind on the subject involved. Now, any evidence with reference to other alleged transactions of the defendant should be limited by the jury to a consideration of the state of the defendant’s mind with reference to the subject involved in this case, and should not be considered otherwise.”

3. ' The evidence amply authorized the conviction, and for no reason assigned did the court err in overruling the certiorari.

Judgment affirmed.

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


text:
    18390.
    Stanford v. The State.
    ‘Criminal Law, 17 C. J. p, 142, n. 7, 8.
    Decided November 15, 1927.
   Luke, J.

The defendant was convicted on November 9, 1926; his motion for a new trial -was overruled on November 26, 1926; the bill of exceptions was certified by the trial judge on December 14, 1926, and on the same date was filed in the office of the clerk of the trial court; the clerk of the trial court certified to the correctness of the bill of exceptions on July 28, 1927, and it was filed in the office of the clerk of the Court of Appeals on July 30, 1927. The case is presented to this court almost a year after the trial. The record fails also to show any service of the bill of exceptions upon counsel for the State, or any acknowledgment or waiver of service. The writ of error must be dismissed. See Earnhart v. Atlanta & West Point R. Co., 133 Ga. 59 (65 S. E. 138); Cox v. Gulf Guano Co., 21 Ga. App. 421 (94 S. E. 582), and cit.

Writ of error dismissed.

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

Selling intoxicating liquor; from city court of Alma—Judge ' Tuten. November 26, 1926.

I. J. Bussell, Homer Causey, for plaintiff in error.

C. A. Williams, solicitor, 'A. B. Spence, contra.


text:
    18416.
    Leake v. City of Atlanta.
    Certiorari, 11 C. J. p. 210, n. 37, 43.
    Decided November 15, 1927.
    Certiorari; from Fulton superior ' court—Judge Humphries. June 17, 1927.

      Claud Brackett, for plaintiff in error.

      J. L. May son, C. S. Winn, contra.
   Luke, J.

The evidence, as shown by the untraversed answer of the trial magistrate, was sufficient to. support the verdict; no error of law appears; and the judge of the superior court did not err in overruling and dismissing the certiorari.

Judgment affirmed.

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


text:
    18427.
    Gunn v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 70.
    Decided November 15, 1927.
    Drunkenness on highway; from Newton superior court—Judge Hutcheson. August 6, 1927.

      C. L. Redmau, for plaintiff in error.

      Claude C. Smith, solicitor-general, contra.
   Luke, J.

The defendant was charged with and convicted of being drunk on a public highway, which drunkenness “was made manifest by boisterousness, and by indecent condition and acting, and by vulgar, profane and unbecoming language, and loud and violent discourse.” The evidence failed to sustain theáe allegations of the indictment; and under the evidence as to the defendant’s condition it is not unreasonable to conclude that he did not go voluntarily upon the public highway, but was driven there by some one else and thereafter abandoned. The trial judge erred in overruling the motion for a new trial. See Reddick v. State, 35 Ga. App. 256 (132 S. E. 645); Howell v. State, 13 Ga. App. 74, 77, 78 (78 S. E. 859).

Judgment reversed.

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


text:
    18434.
    KING v. THE STATE.
    1. The court did not err in overruling the demurrer to the indictment, which charged the accused with giving concerts, shows, and exhibitions, and charging admission therefor, without first paying to the tax-collector the special tax as required by law.
    2. There being no allegation in the indictment that the defendant had failed to register with the ordinary as required by law, and there being no evidence of such fact, the same was not an issue to be determined by the jury, and the court’s charge on this subject, being calculated to mislead the jury into believing that the defendant had violated this law, was harmful error.
    3. The charge of, the court, that paragraph 91 of the tax act of 1923 (Ga. L. Ex, Sess. 1923, p. 48) referred to “a place of business that is regarded or has the attributes of a permanent place,” withdrew from the consideration of the jury the contention of the defendant that his show was taxable under that section, and thereby deprived him of his main defense.
    4. The evidence failed to show that the defendant had violated any penal law, and the court erred in overruling the motion for a new trial.
    Criminal Law, 16 C. J. p. 1041, n. 14; p. 1047, n. 65; p. 1178, n. 63; 17 C. J. p. 342, n. 97.
    Licenses, 37 C. J. p. 267, n. 6.
    Decided November 15, 1927.
    Violating license-tax -law; from Crisp superior court—Judge Crum. August 6, 1927.

      Strozier & Gower, for plaintiff in error.

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

The indictment in this case charged that Jack King, in the county of Crisp, “did then and there unlawfully and with force and arms, being then and there owner, proprietor, and in charge of Jack King’s Comedian Vaudeville Company, same being then and there a group, company, and troup of actors, actresses, and theatrical performers, give concerts, shows, and exhibitions, and charge an admission therefor, within the incorporate limits of the City of Cordele, Georgia, without first paying to the tax-collector of said 'county the special tax as required by law.” There were five other similar counts alleging different dates. The defendant demurred to the indictment, the demurrer was overruled, •and he excepted pendente lite. Upon his conviction he filed a motion for a new trial, which was overruled. In his bill of exceptions he assigns error on the exceptions pendente lite and on the judgment overruling his motion for a new trial.

The court did not err in overruling the demurrer to the indictment.

The controlling issue in the case is whether or not the defendant should have been taxed under paragraph 45 of the tax act of 1923 (Ga. L. Ex. Sess. 1923, p. 32), which is as follows: “Upon all concerts, shows and exhibitions charging an admission, not otherwise herein taxed, in or near cities of less than 5000 inhabitants, $25.00; in or near cities of more than 5000 and not more than 20,000, $50.00; in or near cities of more than 20,000 and not more than 50,000, $75.00; in or near cities of more than 50,000, $100.00 for each day,” etc., or whether he should have been taxed under paragraph 91 of said act, which is as follows: “Upon each and every electric show or exhibition of moving pictures, or illustrated songs, except where given for educational purposed, and upon each place where vaudeville performances are given, whether with or without electric show or moving pictures, for each place of business in or near towns of less than 2000 inhabitants, $2.00 per month; in or near cities from 2000 to 5000 inhabitants, $2.00 per month; in or near cities from 5000 to 10,000 inhabitants, $7:00 per month,” etc. (Italics ours.) In the motion for a new trial it is alleged that the court erred in charging the jury in part as follows: “Now, there is another provision of this law which provides that before one shall enter upon the conduct of any of the businesses upon which these special licenses or specific licenses or occupation taxes are laid, before he shall enter upon the conduct of such business, or engage in such' occupation he must appear before the ordinary of the county in which he proposes to carry on such business or occupation, and with such ordinary register as one proposing to carry on such business. . . Any person failing to register with the ordinary, or having registered failing to pay the special tax as required by the Civil Code, shall be guilty of a misdemeanor, and on conviction shall be fined double the tax or imprisoned as prescribed in section 1065 of the Code of Georgia.” The mere fact that this is a correct proposition of law does not necessarily justify the charge. True, a charge not applicable to the issue involved, if not harmful, would not require a new trial; but the charge in question was erroneous and harmful to the accused because it was not adapted to the facts and issues pf the case,, because there wa& no allegation whatever in the indictment that the defendant had failed to register as provided by law, because there was no evidence whatever showing or tending to show that the defendant had failed to register as required by law, and,because the charge was calculated to mislead the jury into believing that the defendant had violated this provision of the law as to registering. The court charged that either failing to register or failing to pay the tax was a misdemeanor, and the jury would naturally conclude that the court would not have charged on the subject of registering and given them instructions as to the penalty for failing to do so if such an issue were not before them for consideration. Not only did the. indictment fail to allege and the evidence fail to show that the defendant had not registered, but the evidence tended to show that the defendant had registered and tendered the same license tax that he had paid for the same kind of show the previous year, which tax he conceived to be the correct amount due. The charge on a failure to register was unauthorized, misleading, and harmful to the accused. Culberson v. Alabama Construction Co., 127 Ga. 599 (56 S. E. 765, 9 L. R. A. (N. S.) 411, 9 Ann. Cas. 507); Yopp v. State, 131 Ga. 593 (62 S. E. 1036).

The court erred also in charging as set forth in the 7th special ground of the motion, as follows: “You will observe that the tax regulation, according to population, is upon each and every electric show or exhibition, or moving pictures, or illustrated songs, except where given 'for educational purposes, and that tax is also upon each place where vaudeville performances are given, whether with or without electric shows or moving pictures, and it is for each place of business. Now the court is bound to construe that as meaning a tax that is levied upon a place of business, a place of business that is regarded or has the attributes of a permanent place, such as a building or perhaps a tent,' or any permanent place of business having the attributes of permanency, and that it is a tax to be levied upon persons conducting a place of business, irrespective of the performance -they may from time to time carry on, performances of either electric shows, or exhibition of moving pictures, or illustrated songs, or vaudeville performances.” This charge was error for the reason’ that it instructed the jury that this tax applied to “a place of business that is regarded or has the attributes of a permanent place.” This is not necessarily true. It may apply to permanent places, but there is' nothing in the paragraph which limits its application to permanent places. Contrary to this theory, this paragraph fixes a monthly tax rather than a yearly tax, as provided in other portions of the act applicable to permanent places of business. It was error for the further reason that the defendant did not contend that he was operating a permanent business at this place, and this charge therefore excluded from the jury a, consideration of the contention of the defendant that vaudeville shows, wherever operated in this State, were taxable only under the provisions of the paragraph referred to in this portion of "the said charge, viz. paragraph 91 of the tax act (Ga. L. Ex. Sess. 1923, p. 48). This paragraph specifically fixes the tax on “vaudeville performances,” and is the only paragraph that refers to vaudeville shows; and there was ample evidence to show that the performance sought to be taxed in the instant case was a vaudeville performance. In fact the State 'charged in the indictment that the defendant was operating “Jack King’s Comedian Vaudeville Company.” The section of the act (paragraph 45) under which the State insists the license should be paid makes no reference whatever to vaudeville shows, but on the contrary it excludes vaudeville shows, since it taxes only shows and exhibitions “not otherwise herein taxed,” and vaudeville shows are otherwise taxed in paragraph 91 of the act. Furthermore, if vaudeville shows were taxed under paragraph 45, as insisted by the State, the tax for a town the size that Cordele is shown to be would be, in addition to the license imposed by the city, $1300 per month, or $15,600 per year, which might be construed as being prohibitive for a show such as the evidence shows this one to be; and statutes must be given a reasonable intendment and the constitutionality thereof upheld whenever possible. Winter v. Jones, 10 Ga. 190 (7) (54 Am. D. 379).

Because of the erroneous charges referred to> and since there was no criminal intent shown (the undisputed evidence showing a willingness on the part of the defendant to pay the only special tax that could be legally imposed upon him), the court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, G. J., and Bloodworih, J., concur.


text:
    18450.
    WOODY v. THE STATE.
    Under the proof in this ease, in which the accused', who was indicted for assault with intent to murder, was convicted of shooting at another, the court, in charging the jury, did not err in giving them the discretion to convict of the lower offense if they believed that the evidence did not show a specific intent to kill.
    Evidence that the defendant’s appearance bond had been forfeited was admissible as tending to show flight.
    The verdict was supported by evidence.
    Criminal Law, 16 C. J. p. 551, n. 9; p. 552, n. 38 New; p. 1025, n. 91; p. 1180, n. 74. Indictments and Informations, 31 C. J. p. 863. n. 6.
    Decided November 15, 1927.
    Shooting at another; from Lumpkin superior court—-Judge I. H. Sutton. July 2, 1927.

      B. II. Baker, B. P. Gaillard Jr., for plaintiif in error.

      Robert McMillan, solicitor-general, contra.
   Luke, J.

1. The defendant was indicted for the offense of assault with intent to murder and convicted of shooting at another. He contends in the special grounds of his motion for a new trial that the evidence, if believed by the jury, authorized his conviction of assault with intent to murder, but did not authorize his conviction of shooting' at another, or the judge’s charge thereon. Under the proof in this case it was not error to give the jury “the discretion to convict of the lower offense included in the higher felony charged, if they believed the evidence did not show a specific intent to kill.” Autrey v. State, 24 Ga. App. 415 (100 S. E. 782). See also Espy v. State, 19 Ga. App. 743 (92 S. E. 229).

2. “Evidence that the appearance bond of the defendant had been forfeited was admissible as tending to show flight.” Jones v. State, 26 Ga. App. 635 (3) (107 S. E. 166).

3. The evidence supports the verdict, .and for no reason assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworih, J., concur.


text:
    18455.
    TULLIS v. THE STATE.
    A general verdict of guilty means guilty under all the counts of the indictment. Here the counts alleged separate transactions, and, the evidence failing to prove some of these transactions, the general verdict of guilty is unsupported by evidence; and therefore the court erred in overruling the motion for a new trial.
    Criminal Law, 1G C. J. p. 1105, n. G.
    Decided November 15, 1927.
    Embezzlement; from Wilkes superior court—Judge Perryman. July 28, 1927.

      B. IF. Fortson, for plaintiff in error.

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

The defendant was charged with embezzlement. The indictment contained seven counts, each alleging different dates, amounts, and methods of embezzlement. Each count alleged embezzlement from the same corporation, but a separate transaction. The jury rendered a general verdict of guilty. This means guilty on each count in the indictment, and we are unable to find in the record sufficient evidence to support the 3d and 5th counts. In the case of Innes v. State, 19 Ga. App. 271, 273 (91 S. E. 339), Judge George, speaking for the court, said: “It is well settled that an indictment may in several counts charge a violation of one statute in different ways; in which event a general verdict of guilty is good, if the evidence sustains either count. On the other hand, an indictment may charge in different counts the commission of distinct offenses of similar nature; in which event a general verdict of guilty is not good, unless the evidence sustains each count.” In the light of other decisions on this subject we construe this .as holding that different counts in an indictment charging a violation of one statute may contain a different description of the same offense, the same transaction, and if the State proves that the defendant committed this particular offense in any one of the methods alleged, then a general verdict of guilty is good. But if the State alleges different transactions in different counts, then each count must be sustained by proof, in order for a general verdict Qf guilty to stand. In the case of Driver v. State, 112 Ga. 229 (37 S. E. 400), the Supreme Court said: “A general verdict of guilty upon an indictment containing three counts, the first charging the accused with keeping a gaming-house, the Second with keeping a gaming table, and the third with gaming, being in effect a finding of guilty of all the charges set forth in the indictment, is not sustainable when there is no evidence of guilt as to the charges set forth in the first and second counts.” In discussing this case Judge Powell, speaking for this court in the case of Tooke v. State, 4 Ga. App. 495, 503 (61 S. E. 917), said: “In Driver’s case the three counts alleged three distinct transactions, not merely one transaction with the circumstantiality of its commission varied; it alleged the maintenance of a gaming house, the maintenance of a gaming table, also gaming; and there 'being no proof that the defendant maintained the house • or kept the table, the general verdict of guilty was set aside, though there was sufficient evidence to convict him of the gaming.” Judge Powell said also, in the Toolce case, in reference to misdemeanors, that “if the indictment as a whole relates to but one offense, to but one transaction, stated in different counts with variation of details so that the indictment, as pleading, may adapt itself to the different phases which may appear in the proof at the trial, a general verdict of guilty, without any specification as to the count on which it is rendered, is sustainable and proper, if any one of the counts be supported by sufficient proof. Dohme v. State, 68 Ga. 339. See also Stewart v. State, 58 Ga. 577; Williams v. State, 107 Ga. 693 (33 S. E. 641). On the other hand, if by the indictment the State is prosecuting not merely for one offense, but charges several different and distinct transactions, though of a kindred nature, in the respective counts of the indictment, a general verdict of guilty is not sustainable, and is contrary to the evidence, unless the proof is such as to uphold a conviction as to each and every offense alleged.” The decision in the Toolce case is referred ta approvingly by tlie Supreme Court in Simmons v. State, 162 Ga. 316, 318 (134 S. E. 54).

A general verdict of guilty means guilty under all the counts of the indictment. The counts alleging separate transactions, and the evidence failing to prove some of these transactions, the general verdict of guilty is unsupported by evidence, and the court erred in overruling the motion for a new trial.

Judgment reversed.

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


text:
    18462.
    Roberts v. The State.
    Criminal Law, 16 C. J. p. 1179, n. 67. Larceny, 36 C. J. p. 899, n. 34; p. 905, n. 44.
    Decided November 15, 1927.
    Larceny; from Cook superior court—Judge Knight. June 20, 1927.
    On circumstantial evidence, including testimony as to tracking by hounds, Jim Roberts was convicted of larceny of an automobile. It was testified, that about an hour before sundown on a Sunday in the latter part of November the owner of the automobile parked it across the street from a drug-store in the town of Adel. He missed it about dark, and it was found about 8 or 8:30 o’clock the same evening, standing in the street by a warehouse near the railroad. Belle Wright testified that when she was riding down the street on the Sunday evening mentioned, she saw the car in question with two boys riding in it, and turned around and rode behind it, suspecting that it had been stolen, and the boys stopped it, jumped out of it, and ran behind the warehouse, and then down the railroad; one of them had on a brown overcoat and light cap and black suit; the other had on a black suit. She saw them by the light of the automobile in which she sat. She and her companion then drove to where the car in question was standing, and, on finding that it was the car of Mr. Roberts, told him that they had found it. A crowd had then gathered there. Track dogs were put on the trail of the boys, she followed with the crowd, and, in about thirty or forty minutes from the time when she first saw them, Jim Roberts was found in “his house,” a short distance from the railroad, and arrested. She had known him about four months. When found “he had on an overcoat and black suit and a black cap; the overcoat was brown and corresponded with the one” she “saw get out of the car, and about the size;” he was “a little tall, with the same kind of cap and suit and black suit.” The hounds took the trail behind the warehouse; there was no street there and people did not frequent that place on Sunday afternoons. Two hounds from the convict camp of the county were put on the trail by the warden of the camp. He testified: “One of them is the young dog that is registered bloodhound; the other is an old dog, but is an ordinary hound [that] . . I had been using for six years; the other one about two years. . . They were as accurate as any dog . . in following tracks on any occasion. . . I turned the dogs loose close to the car, but the dogs took the track about fifty yards from the car; . . it was across the railroad from the ear. . . The dogs went across a vacant lot there till they hit the South Georgia Railroad, to a crossing, . . probably half a mile; . . they turned back there and came right back through the edge of the quarters and came back around to the house where they stopped. There were two negroes in the house, Jim Roberts and Jessie King. The dogs stopped at the back door and .bayed. I . . went in the house at the front door. . . When I found Jim Roberts there in the shanty he was dressed in light brown overcoat, gray cap, a dark-colored suit. . . He told me he had been in Frazier's restaurant right back just a few feet this side of the house where I found him. He said he had been there at Frazier's about two hours. I asked him wlieré he went into this house, and he said he went into the house where he was found at the back door. I couldn’t say he lived there. . . The registered dog is about two and a half years old and has made several chases on the camps, in the woods and different places. The other is-an old dog; I have had him in use ever since I have been at the camp, and consider them as reliable as anybody's dogs. They are trained practically every day. They are on the road every day, and I run them two or three times a week. I have never run but one of my own convicts that got away that I put the dogs directly on the track of. . . I caught him. I have run- several different tracks trailing people as criminals, and have captured some besides the convicts. These followed that night about a mile or a little farther, and the way we came back was a little farther, where they came back through the quarters like. . . I held the dogs with a chain and they were not turned loose until they picked up the track. I followed immediately behind the dogs. . .1 met the boy at the door. I think the other negro had on a striped sport sweater. . . He had on no overcoat. . . The house where I caught [Jim Roberts] was not tlie first house the dogs' went to. . . I have had about twenty years’ experience with dogs.” The sheriff testified that he had some good success and some bad with a track hound; that he made two or three races with “these same dogs,” and “did not catch anything,” and would not swear that these dogs were reliable as track hounds; he did not think he could. The defendant introduced several witnesses to establish an alibi.
   Luke, J.

Tlie defendant was convicted on circumstantial evidence wliicli fails to exclude every reasonable hypothesis save that of the guilt of the accused; and therefore the court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, O. J., and Bloodioorth, J., eoneur.

G. E. Parrish, for plaintiff in error.


author: Broyles, 0. <).

text:
    17451.
    Shannon v. Martin.
    Motor Vehicles, 42 0. J. p. 617, n. 28; p. 629, n. 95.
    Decided November 16, 1927.
    Damages; from city court of Atlanta—Judge Reid. April 27, 1926.

      Jones, Evins, Moore <& Powers, for plaintiff in error.

      Hewlett & Dennis, contra.
   Broyles, 0. <).

1. “The provisions oí the second paragraph oí section 2 of the act of the General Assembly approved August 15, 1921 (Ga. L. 1921, p. 255), relating to the speed of motor-vehicles upon approaching or traversing intersecting highways, do not apply to intersecting streets of a city.” Shannon v. Martin, 164 Ga. 872 (139 S. E. 671). In view of this decision, and upon request of counsel for the plaintiff in error, the case of Faggart v. Rowe, 33 Ga. App. 423 (126 S. E. 731), is reviewed, and any contrary ruling therein is hereby overruled. Under the above-stated ruling, the trial court’s charge as set forth in the fifth ground of the amendment to the motion for a new trial was reversible error.

2. The remaining special grounds of the motion for a new trial show no error, and the general grounds of the motion are not passed upon.

Judgment reversed.

Luhe and Bloodworlh, JJ., concur.


author: Broyles, C. J.

text:
    18299.
    SPRINGER et al. v. ADAMS.
    The petition in this ease, by which the plaintiff sought to recover for injuries inflicted by an automobile when he was walking on a public highway, and which alleged, as specific acts of negligence contributing to the injuries, the failure of the defendants to stop after the infliction of the injuries, and their failure to give the name and address of the operator and the name and address of the owner of the automobile as required by the motor-vehicle act of 1921, was subject to the special demurrer as to these and other allegations in regard to the conduct of the defendant after the injuries had been inflicted.
    Appeal and Error, 3 O. J. p. 895, n. 52; p. 903, n. 13, 16; p. 904, n. 20; 4 O. J. p. 649, n. 36; p. 937, n. 4.
    Motor Vehicles, 42 O. J. p. 1195, n. 12.
    Decided November 16, 1927.
    Damages; from Hancock superior court—Judge Park. May 28, 1927.

      Colquitt & Conyers, Sidney Smith, Samuel H. Wiley, for plaintiffs in error.

      G. Lee Dickens, D. B. Lambert, Q. L. Williford, contra.
   Broyles, C. J.

This was an action for damages for personal injuries alleged to have been inflicted by the striking of the plaintiff by an automobile while he was walking upon a public highway. The petition, in subsection j of paragraph 22, charged, as a specific act of negligence; contributing to the injuries sued for and forming a basis of recovery therefor, the failure of the defendants, to stop after the infliction of the injuries sued for, and their failure to give the name and address of the operator of the automobile striking the plaintiff, and their failure 'to give the name and address of the owner of the- automobile, as required by section 4 of the motor-vehicle act approved August 15, 1921 (Ga. L. 1921, p. 255). The petition contained no allegation of facts showing or tending to show that this violation of law, alleged to have been committed subsequent to the infliction of the injuries sued for, had any causal relation to the injuries. Nor was such a charge allowable in the petition on the theory that it might be shown as matter of aggravation, to support a recovery of punitive damages; for, under the facts of the case as set forth in the petition, such a recovery was not authorized, and the learned trial judge- so ruled by striking (on demurrer) that portion of the petition which asks a recovery for punitive damages. That ruling was not excepted to, and therefore the question of punitive damages has been eliminated from the case.

The defendants interposed a timely and appropriate special demurrer attacking subsection j of paragraph 22 of the petition, mentioned above, and the court erred in overruling it. That error, under all the facts of the case as disclosed by the petition, was prejudicial to the defendants, and requires another hearing of the case. See, in this connection, Holbrooks v. Ford Rental System, 34 Ga. App. 588 (130 S. E. 363), and cit. For the reasons stated above, the court erred also in overruling grounds 3 and 6 of the special demurrer, attacking certain other parts of the petition. The errors referred to rendered the further proceedings in the case nugatory, and the assignment of error upon the refusal to grant a new trial will not be passed upon.

Judgment reversed.

Luke and Bloodworih, JJ., concur.


author: Bkoyles, C. J.

text:
    18301.
    Ussery v. The State.
    Criminal Law, 16 C. J. p. 271, n. 9; p. 273, n. 24; p. 278, n. 39; p. 279, n. 56 New.
    Intoxicating Liquors, 33. C. J. p. 758, n. 80.
    Decided November 16, 1927.
    Making intoxicating liquor; from Jones superior court—Judge Park. June 15, 1927.

      J. B. Jackson, for plaintiff in error.

      Joseph B. Duke, solicitor-general, contra.
   Bkoyles, C. J.

1. Upon the trial of one charged with manufacturing whisky, a plea of autrefois convict, setting up that a few months previously the accused had been convicted of the offense of possessing whisky, and that the charge of possessing whisky, upon which he had been convicted, and the present charge of manufacturing whisky, were based upon the same facts and grew out of the same transaction, is insufficient in law and is not a good plea of autrefois convict. It is obvious that the greater offense of manufacturing whisky can not be merged into the lesser offense of possessing the whisky.

2. The verdict was amply authorized by the evidence.

Judgment affirmed.

Jmhe and Bloochoorlh, JJ., concur.


text:
    18303.
    Hill v. Citizens Bank and Trust Company.
    Pleading', 31 Cyc. p. 617, n. 48.
    Decided November 16, 1927.
    Complaint; from city court of LaGrange—Judge Tuggle. June 7, 1927.

      Hall & Jones, for plaintiff in error.

      W. Howell Morrow, Lovejoy & Mayer, contra.
   Broyles, C. J.

Under the facts of the case as disclosed by the record, the court did not err in striking the amended plea of the defendant, on general demurrer, or thereafter in permitting a verdict and judgment to be taken in favor of the plaintiff for the full amount sued for.

Judgment affirmed.

Lulce and Bloockoorih, JJ., eoneur.


author: Bloodwortii, <).

text:
    18308.
    Belcher v. Land.
    Appeal and Error, 4 O. J. p. 832, n. 47; p. 833, n. 57. ~~
    Decided November 16, 1927.
    Trespass; from Douglas superior court—Judge Edwards. May 18, 1927.

      Aslor Merrill, for plaintiff. L>. 8. Stridcland, for defendant.
   Bloodwortii, <).

The verdict rendered not having been absolutely demanded by the evidence, and this being the first grant of a new trial, this court will not interfere. Civil Code (1910), § 6204; Carr v. Carr, 157 Ca. 208 (121 S. E. 227), and cit.; Rooks v. Stanaland, 33 Ga. App. 9 (4, 5) (124 S. E. 904).

Judgment affirmed.

Broyles, C. J., and Lulce, J., eoneur.


text:
    18309.
    Hogan v. Laurens County.
    New Trial, 29 Cyc. p. 824, n. 41.
    Decided November 16, 1927.
    Action for damages; from Laurens superior court—Judge Camp. June 11, 1927.

      8. P. New, T. E. Ilighlower, for plaintiff.

      Burch & Daley, for defendant.
   Broyles, C. J.

The verdict was amply authorized' by the evidence, and none of the grounds of the amendment to the motion for a new trial show cause for a reversal of the judgment below;

Judgment affirmed.

Lulce and Bloodworlh, JJ., eoneur.


text:
    18310, 18317.
    Oliver v. Farmers Bank; and vice versa.

    Pleadings, 31 Cyc. p. 360, n. 20. Trial, 38 Cyc. p. 1565, n. 84; p. 1574, n. 21; p. 1575, n. 22.
    Decided November 16, 1927.
    Complaint; from Barrow superior court—Judge Stark. June 11, 1927.

      Joseph D. Quillian, for Mrs. Oliver.
    (?. D. Boss, J. G. Pratt, contra.
   Luke, J.

The Farmers Bank, of Winder, sued Mrs. Roxie B. Oliver on two notes, and sought a special lien on certain real estate alleged to have been conveyed by security deed, to secure a note of which these notes were renewals. The defendant pleaded mental and physical incapacity to contract, and duress. She demurred to the petition; her demurrer was overruled, and she excepted pendente lite. She likewise excepted to the allowance of an-amendment to the petition. By cross-bill the bank excepted to the overruling of its demurrer to an amendment to the answer. The case went to trial, and the court directed a verdict for plaintiff. Held:

1. The court did not err in overruling the demurrer, or in allowing tlio amendment to the petition.

2. It appearing that the evidence demanded a finding against the pleas filed, and that the evidence as a whole, with all reasonable deductions and inferences therefrom, demanded the verdict, its direction was not error.

3. Under the facts of the case the remaining grounds of the amendment to the motion for a new trial show no cause for a reversal of the judgment below.

Judgment affirmed on main hill of exceptions; cross-hill dismissed.

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


text:
    18312.
    Stoddard, agent, etc., v. Churchill Line.
    Appeal and Error, 4 C. J. p. 890, n. 90.
    Decided November 16, 1927.
    Complaint; from Chatham superior court—Judge Meldrim. April 16, 1927.
    For an alleged balance due as rent under a lease, the Churchill Line was sued by Edward S. Stoddard as agent for the estate of H. M. Stoddard. The lease ran from year to year and provided for its continuance unless at least three months' written notice were given before its expiration. The parties differed as to the effect of an agreement under which rent was reduced for a stated period and bills rendered and receipts given for the reduced amount for some time after that period, the suit being for the difference between that amount for this additional period and the amount which under the original agreement would have been due for the same period, and the plaintiff contending, in the brief of his counsel in this court, that the billing and receiving of reduced rent for the additional period was at variance with the written contract and was an error, while the defendant contended that there was an automatic renewal and extension of the lease at the rate existing in the agreed period of the reduction; that the parties, by their course of dealing, placed this construction on the contract; and that the case is governed by section 4227 of the Civil Code (1910), which provides that “Where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given the other of intention to rely on the exact terms of the agreement. Until such notice, the departure is a quasi new agreement.” It was also contended that the payment and acceptance of the reduced amount for the period stated constituted an accord and satisfaction. Upon an agreed statement of facts the case was tried by the court without a jury, and judgment was rendered for the defendant. The case came to this court on exceptions to the overruling of a motion for a new trial, based on the usual general grounds.
   Broyles, C. J.

The ease, by consent of both parties, was submitted to the court, without the intervention of a jury, upon an agreed statement of facts, and the court did not err in rendering a judgment in favor of the defendant, or thereafter in refusing to grant a new trial.

Judgment affirmed.

Luhe <md Bloodworth, JJ., concur.

The lease was dated October 1, 1920, and was for a term of twelve months next ensuing, and covered offices in Savannah at Numbers 34 and 36 East Bay street and warehouses directly under the same. It contained a clause as follows: “The tenant does covenant and agree to give the landlord, or his agent, not less than three months' notice in writing of his intention to give up the premises at the end of this lease prior to the expiration thereof, or at the end of any renewal or renewals thereof, otherwise the lease will be continued in force for a-year from its expiration, and from year to year until such notice is given; the landlord to have the privilege of cancelling this lease by giving the same notice.” The agreed rental was $3600, payable in monthly installments of $300 in advance on the first day of each month. The lease “was renewed from rental year to rental year until October 1, 1924.” On July 11, 1924, the parties entered into an agreement as to renewal of the lease. This agreement was in a letter of the lessor, which says that as agreed, the lease “is hereby amended to make the rental for the year Oct. 1st, 1924, to Oct. 1st, 1925, $270.00 per month; also the privilege granted to give up either 34 or 36 E. Bay street on ninety days5 notice after present lesPse' year Oct. 1st, 1924. It is understood the above changes apply only for the lease year Oct. 1, 1924, to Oct. 1, 1925. In all other respects the lease remains unchanged.” This was accepted in writing by the lessee. Under both the original lease and -the new arrangement a half of the rental applied to 34 East Bay street and a half to 3G East Bay street. On July 3, 1925, an agreement was made as to the rental of 36 East Bay street, as set out in a letter of the lessor which says: “Confirming agreement with your Mr. Beytagh as to notice under lease for offices 34-36 East Bay 'street, it is agreed that notice of your dfesire to discontinue lease be temporarily waived so far as relating to next lease year commencing Oct. 1, 1925, you agreeing to advise me of any changes as soon as same may be determined and prior to October, 1925. . . In reference to rental of 36 East Bay, it is understood that your rental on this portion of the offices was reduced to $75.00 per month from Meh. 11, 1925, to October 1, 1925.” This was accepted in writing by the lessee. Bills were regularly rendered and paid for rent of 34 and 36 East Bay street at the reduced rate until June, 1926. On June 23, 1926, the lessor wrote to the lessee: “As requested by you, it is agreeable that your lease of offices at 34-36 Bay street . . dated October 1, 1920, be terminated as of June 1, 19.26, in so far as liability for rentals accruing on and after June 1, 1926, are concerned.” This was accepted and agreed to in writing by the lessee.

H. Mercer Jordan, Robert L. Golding, for plaintiff, cited: 128 Ga. 628 (4); Id. 695; 15 Ga. App. 678 (2); 141 Ga. 565 (2).

Stephens & Stephens, for defendant, cited: Civil Code (1910), §§ 4266, 4227; 16 Ga. App. 636.


author: Bloodwortii, J.

text:
    18315.
    Hulsey v. The State.
    Criminal Law, 16 O. J. p. 777, n. 90; p. 1057, n. 26; p. 1058, n. 32; p. 1140, n. 63; p. 1149, n. 91.
    Intoxicating Liquors, 33 C. J. p. 761, n. 53; p. 764, n. 1.
    Decided November 16, 1927.
    Possessing and selling intoxicating liquor; from Paulding superior court—Judge Edwards. May 19, 1927.

      G. D. McGregor, G. B. McGarrity, for plaintiff in error.
    . 8. W. Ragsdale, solicitor-general, contra.
   Bloodwortii, J.

1. “The only evidence which suggests the defense of alibi is confused and uncertain, and fails reasonably to exclude the possibility of the presence of the 'defendant at the scene of the offense at the time of its commission.” Moore v. State, 17 Ga. App. 344 (2) (86 S. E. 822). In the absence of a timely written request, it would not have been error had the court failed to instruct the jury touching the law of alibi. However, the court gave the defendant the benefit of the charge on this defense, and under the facts of this case this charge will not require the grant of a now trial, oven though the court prefaced these instructions With the statement, “The question of alibi is0 possibly in it.”

2. There is ample evidence to support the verdict.

Judgment affirmed.

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


text:
    18318.
    King v. Coweta Fertilizer Company.
    Chattel Mortgages, 11 C. J. p. 735, n. 38.
    Crops, 17 C. J. p. 379, n. 8.
    Trial 38 Cye. p..l565, n. 84; p. 1566, n. 87; p. 1574, n. 21; p. 1575, n. 22.
   Broyles, C. J.

1. This was a mortgage foreclosure, and the issue was between the original parties to the mortgage. The affidavit of illegality interposed raised no issue as to the description of the property levied on. Under these circumstances the entry of the sheriff sufficiently described the property levied on. Nor did the levy show upon its face that the property levied upon was realty, merely because the levying officer described the property as “cotton and corn growing on the farm,” etc. (Italics ours.) The misuse of the word “growing” by the sheriff could not make realty out of personal property. The facts of the case disclose that the crop was being gathered and sold and was in fact mature. The court did not err in overruling the motion to dismiss the levy.

2. Under the facts of the case, after the introduction of the plaintiff’s evidence, and the failure of the defendant to put in any evidence, a verdict in favor of the plaintiff' and against the illegality was demanded, and the court did not err in directing such a verdict.

Decided November 16, 1927.

Affidavit of illegality of execution; from Gwinnett superior court —Judge Stark. June 6, 1927.

W. L. Nix, for- plaintiff in error. Kelley & Kelley, contra.

Judgment affirmed.

Luke and Bloodworth, JJ., comcur.


author: Bloodworti-i, J.

text:
    18320.
    American National Insurance Co. v. Barclay.
    Appeal and Error, 4 C. J. p. 1093, n. 77.
    Decided November 16, 1927.
    Complaint on accident policy; from city court of Macon—Judge Hall. June 8, 1927.

      Ma/rtin, Martin & Snow, for plaintiff in error.

      B. J. Fowler, contra.
   Bloodworti-i, J.

1. This is the second appearance of this case in the Court of Appeals. The present motion for a new trial contains a number of grounds. Several of these were settled by the decision rendered when this case was first before this court. Barclay v. American National Ins. Co., 36 Ga. App. 447 (136 S. E. 803). None of the other grounds of the motion show any reason why the case should be tried again, and the motion for a new trial was properly overruled. 2. The request of counsel for the defendant in error that damages, as provided by section 6219 of the Civil Code of ' 1910, be awarded against the plaintiff in errpr is denied.

Judgment affirmed.

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


author: Brovles, C. J.

text:
    18321.
    Beavers v. Howell.
    Appeal and Error, 4 C. J. p. 864, n. 32, 33; p. 865, n. 36. New Trial, 29 Cyc. p. 942, n. 95.
    Decided November 16, 1927.
   Brovles, C. J.

1. None of the grounds of the amendment to the motion for a new trial (many of them too incomplete within themselves to be considered) shows cause for a reversal of the judgment below.

2. There was some evidence authorizing the verdict, and, the finding of the jui’y having been approved by the trial judge, this court is without authority to interfere.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

10, Trover; from city court of Americus—Judge Harper. 1927.

James A. Fori, for plaintiff in error. Zach. Childers, contra.


author: Bloodworth, J.

text:
    18323.
    DIXON v. HOLLIMAN.
    1. The, denial of the justice and fairness of an account sued on in a justice’s court and proved by affidavit, under § 4730 of the Civil Code of 1910, must be in,writing and sworn to.
    2. Where an account is sued on in a justice’s court, it is sufficiently proved when the affidavit attached to it is in writing, signed by the plaintiff, and sworn to before an officer authorized to administer oaths.
    3. Under section 4730 of the Civil Code (1910), it is only “where a verified account is attached to the summons in a justice’s court and served upon the defendant personally” that “the affidavit performs the office of evidence.”
    Accounts and Accounting, 1 G. J. p. 659, n. 63; p. 664, n. 38, 45, 49; p. 666, n. 70, 71; p. 667, n. 95, 96, 97, 99; p. 668; n. 3. Statutes,. 36 Cyc. p. 1179, n. 16.
    Decided November 16, 1927.
    Appeal; from lLaurens superior court—Judge Camp.’ June 11, 1927.

      William Brunson, for plaintiff in error. W. A. Dampier, contra.
   Bloodworth, J.

This was a suit in a justice’s court on an open account which was verified by the affidavit of the plaintiff as follows: “The above account sworn to and subscribed before me this the 19th day of March, 1926. Ira Holliman. Nathan Gilbert, J. P.” The defendant did not comply with the provisions of section 4730 of the Civil Code of 1910, and “file his affidavit denying the justice and fairness of the whole .or any part of such account.” After judgment against him the defendant appealed to the superior court and there filed a plea. This plea was afterwards “disallowed, because filed too late.” The defendant offered an amendment to the plea which had been stricken, and the amendment was also disallowed. The defendant excepted pendente lite to the order striking the original plea and to the order disallowing the amendment. Upon the trial a verdict for the plaintiff was directed. A motion for a new trial was overruled, and the defendant excepted.

The law directly involved in this case is § 4730 of the Civil Code of 1910. It will be seen that this section provides that “When suit is brought upon an open account in a justice court, such account may be. proved by the written affidavit of the plaintiff, and, when so proved, shall be received in evidence as if proved in open court; nevertheless, if the defendant will file his affidavit denying the justice and fairness of the whole or any part of such account, the court shall not give judgment in favor of the plaintiff for that part of the account so denied and controverted, unless supported by other proof.” There is “nothing in the law of this State which prescribes the time within which such counter-affidavit by the defendant shall be filed,” yet “the time when the counter-affidavit may be filed as a matter of right is when the cáse is called for trial.” Brierton v. Smith, 7 Ga. App. 69, 71 (66 S. E. 375); O’Dell v. Meacham, 114 Ga. 910, 912 (41 S. E. 41). Counsel for plaintiff in error insists that as his name was marked on the docket in the justice’s court, this amounted to a plea of the general issue, and he should be allowed to amend, but under the statute this is not sufficient. Indeed, in Rockmore v. Cullen, 94 Ga. 648 (21 S. E. 845), it was held that “an unsworn plea will not suffice as a substitute for the affidavit required of the defendant by the statute, nor will a .sworn plea, unless the oath thereto be in writing.” Eeferring to the case of Barnes v. Coker, 112 Ga. 137 (37 S. E. 104), Justice Eish, in O’Dell v. Meacham, supra, said: ■ “Of course, the unsworn plea filed by the defendant in that case at the first term was not the counter-affidavit provided for by the Civil Code, § 4130 [§ 4730 of the Code of 1910].” If the plea is not sworn to, it does not amount to the counter-affidavit provided by section 4730 of the code, and, so far as the defendant is concerned, the case is in default. Central of Ga. Ry. Co. v. Duncan, 8 Ga. App. 177 (2, 3) (68 S. E. 871). In the case which we are now considering no written plea was filed in the justice’s court, nor did counsel offer to file one. See Coffee v. McCaskey Register Co., 7 Ga. App. 425 (66 S. E. 1032). Under the facts in this case and the principle announced in Draper v. Burr Mfg. Co., 10 Ga. App. 321 (73 S. E. 534), the plea filed in the superior court was properly stricken, and the amendment thereto was properly disallowed. See, in this connection, Freeman v. Carr, 104 Ga. 718 (30 S. E. 935); Morgan v. Mayor &c. of Cohulta, 120 Ga. 423 (4) (47 S. E. 971), and cit.

It was insisted by counsel for plaintiff in error that the account sued on was improperly admitted in evidence, because not properly verified. We can not agree with this contention. The account was sufficiently verified. The affidavit attached to it was in writing, signed by the plaintiff, and sworn to before a justice of the peace.

As the account sued on was sworn to, it was not inadmissible in evidence on the ground that it was not properly verified; yet the court erred in rendering a judgment for the plaintiff, because the statute, § 4730, requires that “In all cases when such affidavit to prove the account is made, there shall be personal service upon the defendant before judgment is given for the plaintiff under the provisions of this- section.” The record in this case shows that service was “by leaving copy at home of defendant.” In Sims v. Thomas, 18 Ga. App. 212 (89 S. E. 163), it was held: “Section 4730 of the Civil Code is in derogation of the common law, and must be strictly construed. When a suit in a justice’s court is based on an open account which has been properly itemized and verified, but service of the suit has been effected upon the defendant by merely leaving a copy of the summons and account at his most notorious place of abode, final judgment for the plaintiff can not be entered by the magistrate unless the account is otherwise proved. This is true although the defendant appears in court and announces ready for trial, and does not file a counter-affidavit or make airy other defense to the suit. Sapp v. Mathis, 12 Ga. App. 273 (77 S. E. 102).” It is only “where a verified- account is attached to the summons in a justice’s court and served on the defendant personally” that “the affidavit performs the office of evidence, and the plaintiff is entitled to a judgment unless a verified defense is filed.” Peeples v. Sethness Co., 119 Ga. 777 (47 S. E. 170); Brierion v. Smith, supra. A ground of the motion for a new trial alleges that “the mere introduction of the statement of the account in favor of the plaintiff against the defendant, which was attached to the original summons, and which original summons was served on the defendant not personally but by leaving a copy of the same at defendant’s residence, was not sufficient evidence to make out a case in favor of the plaintiff' against the defendant, and did not authorize the direction of a verdict in any sum against the defendant, as the burden of proof resting on plaintiff to prove his account and make out his case was never carried by the plaintiff, and the court therefore erred in directing a verdict without any evidence to support the same.” The contention of counsel as set out in this ground is correct. Under the foregoing decisions, the introduction of the verified account alone would not authorize a verdict for the plaintiff where the service on the defendant was not personal.

In thus deciding this case we are not running counter to the case of Draper v. Burr Mfg. Co., supra, relied on by defendant in error; for an examination of the record in that case reveals the fact that there was personal service on the defendant.

Judgment reversed.

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


text:
    18324.
    Green v. Villa Rica Motor Company.
    New Trial, 29 Cyc. p. 762, n. 10.
    Trial, 38 Cyc. p. 1565, n. 84; p. 1574, n. 21.
    Decided November 16, 1927.
    Complaint; from Carroll superior court—Judge Eoop. June 7, 1937.

      Beall & Beall, for plaintiff in error. Boykin & Boykin, contra!
   Broyles, C. J.

1. Under numerous and repeated decisions of the Supreme Court and of this court, a ruling- upon a demurrer can not be the basis of a ground of a motion for a new trial.

2. The evidence demanded a verdict in favor of the plaintiff for the .full amount sued for, and the court properly directed such a verdict.

Judgment affirmed.

LuJce and Bloodioorth, JJ., eonour.


text:
    18326.
    Newsome v. The State.
    Criminal Law, 10 C. J. p. 1218, n. 46.
    Intoxicating Liquors, 33 C. J. p. 764, n. 1.
    Decided November 16, 1927.
    Selling intoxicating liquor; from Macon superior court—Judge Littlejohn. June 21, 1926.

      Jere M. Moore, for plaintiff in error.

      Jule Felton, solicitor-general, contra.
   Broyles, C. J.

The motion for a new trial contained the usual general grounds only. The verdict was authorized by the evidence, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luhe and Bloodworth, JJ., eoneur.


text:
    18327.
    BRANNEN et al. v. RIGGS.
    1. An extraordinary motion for a new trial is not the proper method to secure the reinstatement of a former motion for a new trial which was dismissed.

      (a) A motion to reinstate a case because of the illness of counsel when the case was dismissed is fatally defective when it does not allege that at the time of the dismissal counsel was unable to notify the court of his condition.
    2. The overruling of an extraordinary motion for a new trial will not be reversed unless it appears that the judge abused his discretion.
    New Trial, 29 Cyc. p. 765, n. 38; p. 955, n. 39; p. 1008, n. 48; p. 1028, n. 87.
    Decided November 16, 1927.
    Motion for new trial; from city court of Statesboro—Judge Proctor. June ,4, 1927.

      J. L. Brown, Hugh B. Kimbrough, Howell Gone, for plaintiffs in error.

      Fred T. Lamer, contra.
   Bloodworth, J.

On April 11, 1927, an extraordinary motion for a new trial was filed, upon two grounds: (1) that the court had, on February 12, 1927, erred in dismissing an ordinary motion for a new trial, and (2) because of newly discovered evidence that a juror “who was on the panel that rendered a verdict for the plaintiff therein was a disqualified juror’ because of relationship to the plaintiff.”

The first of these grounds is without merit, because an extraordinary motion for a new trial is not the proper method to secure the reinstatement of a former motion for a new trial which was dismissed. Moreover, even had this been a proper proceeding, the motion as made would not have availed the movant. In his extraordinary motion it was alleged that on February 12th, the day set for the hearing of the original motion for a new trial, J. L. Brown, leading counsel for movant, “was too. ill to attend court at Statesboro, or to prepare a brief of the evidence, or to prepare an amendment to the motion for a new trial.” There was nothing in the motion to the effect that leading counsel was too ill to notify the court of his condition or that associate counsel conveyed to the court such information. In Brown v. Verekas, 164 Ga. 733 (139 S. E. 344), it was held: “Petition for injunction and to vacate judgment on ground that petitioner’s attorney was sick in bed and unable to be in court, or know that case was assigned for trial, failing to allege that counsel was unable to notify court of his condition, did not set out cause of action for equitable relief.”

“Motions for new trials upon extraordinary grounds are not favored by the courts. Hayes v. Westbrook, 96 Ga. 219 (22 S. E. 893)Jackson v. State, 30 Ga. App. 669 (118 S. E. 763). Where an extraordinary motion for a new trial is based upon the alleged • relationship of one of the jurors to a party to the cause, it is required that the movant “shall make his extraordinary motion c promptly on discovery of the grounds,’ and where facts come within his knowledge following a trial, from which reasonable inquiry would develop full knowledge of the disqualification of a juror, due diligence requires that such an inquiry be made. Holder v. Farmers Exchange Bank, 30 Ga. App. 400 (118 S. E. 467).” Edenfield v. Youmans, 33 Ga. App. 430, 431 (126 S. E. 908). The relationship between the party and juror in this case is not in dispute. This relationship was shown by the affidavit of W. B. Bowe. This affidavit was obtained by Cleve Jones, an attorney, and in it Bowe swore that Cleve Jones “is the only person that approached deponent to get an affidavit in said case, and that he is the only one representing defendants that ever discussed the matter with deponent,” and that “about four weeks prior to February 12, 1927,” Cleve Jones came to his home and inquired about the relationship of W. L. Zetterower to the plaintiff, and that he then explained to Jones the relationship, and Jones at that time made a diagram or drawing on paper showing the relationship, similar to the one attached to the affidavit made by deponent on February 12, 1927.” Howell Cone, one of the attorneys for plaintiffs in error, and “who had the most to do with and took the leading part in getting up the affidavits and making the showing that one of the jurors in the first case was related to plaintiff,” testified that Lester Brannen, a brother of plaintiffs in error “was to get the affidavit of W. R. Rowe on the 11th of February, but did not get it,” and that “D. C. Jones was consulted by the said Lester Brannen and was to go with said Lester Brannen to get said affidavit,” and that he “had heard that there was relationship if affidavit could be obtained.” In addition to this, Attorney Cone, on the morning of February 12th and before the call of the motion for a new trial, stated, in reference to the relationship of the party and juror, “We have not got to hunt for it. We have already found it.-” “The overruling of an extraordinary motion for a new trial will not be reversed unless the discretion of the trial judge has been abused.” Holder v. Farmers Exchange Bank, 30 Ga. App. 404 (118 S. E. 467).

Under the evidence submitted in the instant case, the judge was authorized to find that counsel for the movant, before the ordinary motion for a new trial was dismissed, knew of the relationship of the juror to the plaintiff; and this court can not hold that the judge abused his discretion in overruling this ground of the extraordinary motion for a new trial.

Judgment affirmed:

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


author: Bboyles, C. J.

text:
    18333.
    Puffer Manufacturing Company v. Nunn.
    Appeal and Error, 4 C. J. p. 853, n. 63.
    New Trial, 29 Cyc. p. 942-, n. 95; p. 944, n. 98; p. 949, n. 15.
    Trial, 38 Cyc. p. 1610, n. 94; p. 1613, n. 16; p. 1621, n. 40; p. 1624, n. 51; p. 1707, n. 98; p. 1778, n. 73; p.' 1779, n. 75.
   Bboyles, C. J.

1. Grounds 1, 2, 3, and 4 of the amendment to the motion for a new trial (complaining of certain alleged errors in the chai-ge of the court, but failing to set forth any excerpts from the charge) are too general and incomplete to raise any question for the consideration of this court.

Decided November 16, 1927.

Complaint; from city court of Atlanta—Judge Dorsey. May 30, 1927.

George B. Rush, for plaintiff.

Hewlett & Dennis, for defendant.

2. The court did not err in failing to give in charge to the jury section 4137 of the Civil Code of 1910. That section relates to cases of express warranty (Cook v. Finch, 117 Ga. 541, 544, 44 S. E. 95), and the warranty in the instant case was an implied one.

3. In the light of the facts of the case and the entire charge of the court, the excerpt complained of in ground 6 of the amendment to the motion for a new trial was not reversible error. ' “It is not reversible error for the court, in stating the contentions of the parties, to state these contentions as they are presented in the pleadings, even though there be no evidence, or insufficient evidence, to support the contentions.” Matthews v. S. A. L. Ry., 17 Ga. App. 664 (87 S. E. 1097).

4. Under all the facts of the case this court can not hold, as a matter of law, that the defendant failed to carry the burden of proof which he assumed at the beginning of the trial, or that the verdict in his favor was not authorized by the evidence.

Judgment affirmed.

Jjulte and Bloodworth, JJ., concur.


text:
    18335.
    RODDENBERRY v. THE STATE.
    1. The demurrer to the indictment as a whole and to each count thereof was properly overruled.

      {a) As to the misjoinder of counts, see. Jordan v. State, 127 Ga. 278 (56 S. E. 422), and eit.; Rale v. Stale, 120 Ga. 183 (2), 184 (47 S. E. 531); Williams v. State, 72 Ga. 180; Belcher v. Slate, 19 Ga. App. 439 (91 S. E. 879), and cit.; Jackson v. State, 76 Ga. 551 (13-d), 553. ■
    (6) As to the sufficiency of the allegations in the several counts, see Ruff v. State, 17 Ga. App. 337 (3, 5) (86 S. E. 784).
    2. While, under the foregoing rulings, each count is sufficient to withstand the demurrers, it is patent that some of them are repugnant ■ one to the other, yet the trial judge did not abuse his discretion in failing to require the solicitor-general, before any evidence was introduced, to elect upon which count he would try the defendant. Laseelles v. Slate, 90 Ga. 347 (4) (16 S. E. 945, 35 Am. St. R. 216). See Freeman v. Slate, 35 Ga. App. 223 (132 S. E. 782).
    3. The evidence was not sufficient to support the verdict.

      (a) In this State there can be a legal verdict for perjury only when it is supported by the evidence of two witnesses or one witness and corroborating circumstances.

      Criminal Law, 16 C. J. p. 862, n. 42; 17 C. J. p. 228, n. 24; p. 229, n. 34.
    Perjury, 30 Cyc. p. 1425, n. 17; p. 1448, n. 65; p. 1452, n. 92; p. 1453, n. 93, 95.

      (6) Proof that the defendant had made contradictory statements is not alone sufficient.
    Decided November 16, 1927.
    Indictment for perjury; from Pierce superior court—Judge Reed. Junp 25, 1927.

      S. F. Memory, for plaintiff in error.

      A. B. Spence, solicitor-general, contra.
   Bloodworth, J.

Only the 3d headnote needs elaboration. Under the law of this State, to convict of perjury requires two witnesses or one witness and corroborating circumstances. Penal Code (1910), § 1017. Basing his charge on the foregoing statute and the principles announced in the ease of Bell v. State, 5 Ga. App. 701, 703, 704 (63 S. E. 860), which case is supported by decisions from many States and numerous text writers, the presiding judge correctly charged the jury that “The corroborating evidence necessary to support the testimony of a witness must not be evidence that emanates from the mouth of the defendant himself, but evidence from another source which tends to show the perjury independently of the declaration of the defendant.” “ Contradictory sworn statements by the defendant are not alone sufficient to establish the crime of perjury.” “Where it is shown that the contradictory statements are made under oath, and there is nothing to show which of them is false, the defendant can not be convicted.” “The mere statements of the defendant who is alleged to have made the false oath that such oath was in fact untrue, are not entitled to any weight by the jury unless supported by other competent evidence to establish the falsity of the oath.” Applying the foregoing rules of law to the evidence in this case it is clear that the charge of perjury was not established by “two witnesses or by one witness and corroborating circumstances.” The proof that defendant had made contradictory statements is not alone sufficient to convict.

Judgment reversed.

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


text:
    18339.
    Tanner v. Cochran.
    Trial, 38 Cyc. p. 1565, n. 84; p. 1574, n. 21.
    Decided November 16, 1927.
    Complaint; from city court of Douglas—Judge Henson. July 1, 1927.

      JB. L. Grantham, for plaintiff in error.
    J. N. McDonald, Mingledorff & Gibson, contra.
   Bloodworth, J.

Under the pleadings and the evidence in this case, the only proper and legal verdict which the jury could have found, had the case been submitted to them, would have been in favor of the plaintiff for the full amount for which suit was 'brought; and the court did not err in directing such a verdict.

Judgment affirmed.

Broyles, O. J., and Luke, J., eonour.


text:
    18340.
    Wilson v. The State.
    Criminal Law, 16 C. J. p. 764, n. 54; p. 1179, n. 67; 17 C. J. p. 252, n. 16.
    Decided November 16, 1927.
    Cruelty to animal; from Houston superior court—Judge Mathews. June 25, 1927.
    Connie Wilson was charged with cruelty to David Cromer’s cow, by shooting her. They lived on adjacent farms. Cromer missed the cow, which had been tied to a stake on his premises, and, after sundown of the same day, acting on a report of his son, whom he had sent to look for her, he went to the defendant’s house. A light which he saw in the house as he approached was extinguished. The cow, with her left hind-leg broken and a hole in it about the size of a bullet, was found lying down in the defendant’s field, back of his bam, which was immediately behind his house. The next day Cromer went back there with the sheriff and others. He testified: “I [then] told Connie Wilson that I was a poor man and could not afford to lose the cow. Connie Wilson said that he would pay the doctor’s bill, but he has never spoken to me about this cow since. Nothing that I know of but a bullet could have made the hole in the hide and broken the leg as it was broken. . . Connie Wilson denied that he shot the cow. . . I let her leg stay bandaged up for about seven weeks. When I took the bandage off, the bone was sticking out of her leg. . . Her leg was rotted off where she was wounded. I never looked for the bullet after she was dead. I never saw any bullet.” „ Another witness testified as to the defendant’s promise to pay the doctor’s bill. A veterinary surgeon and others testified that they could not positively swear that the wound was made by a bullet, blit they thought that it was. It was round and smooth. The surgeon swore that the wound was just above the hock-joint, and he could not explain what it was unless it was a bullet; in his opinion the cow was shot with a rifle or pistol. Cromer’s son testified that just before sundown on the day on which the cow was missed he saw her lying down near a hay-stack back of the defendant’s barn, 'with a hole in her leg, and that the defendant was plowing in a circle around his fiéld and passing within fifty steps of the cow. The persons living on the place with him were his wife, his mother and several small children. The defendant, in his statement at the trial, said that when he started plowing he saw the cow and noticed that she was hurt, but did not know how she was hurt; that he gaw Cromer’s boy come up on a mule, and whistled to him, but the boy did not hear, and rode off. The defendant said that he told Cromer that he would not pay for the cow. Cromer’s son testified that the defendant passed right by him when he went to the defendant’s place and saw the wounded cow, and that nothing was said to him by the defendant. Several witnesses testified that they did not hear shooting that day, though they were near where the cow was found.
   Broyles, C. J.

The evidence upon which the accused was convicted was wholly circumstantial, and did not exclude every reasonable hypothesis other then that of his guilt. It follows that the court erred in refusing the grant of a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

8. M. Mathews, M. Kum, for plaintiff in error,

cited: 26 Ga. App. 591; 147 Ga. 134; 117 Ga. 230; 17 Ga. App. 820; 19 Ga. App. 782; Penal Code, § 1010.

Gharles E. Garreit, solicitor-general, contra,

cited:1 1 Kelly, 610; 59 Ga. 738 (6); 63 Ga. 93.


text:
    18341, 18342.
    Grant v. Southern Railway Co. et al. (Two Cases.)
    Negligence, 29 Cyc. p. 581, n. 3.
    Pleading, 31 Cyc. p. 78, n. 95; p. 289, n. 60.
    Decided November 16, 1927.
    Action for damages; from Pike superior court—Judge Searcy. June 18, 1927.

      T. J. Lewis, B. C. Johnson Jr., for plaintiffs.

      McDaniel & Neely, II. L. Greene, Arnold & Battle, for defendant.
   Broyles, C. J.

Conceding (but not deciding) that the petitions as amended in these cases showed that Luther Grant, the person alleged to have been injured, was, at the time he was injured, an invitee on the premises of the defendants, the petitions (construed most strongly against the pleaders) further show that Luther Grant, by the exercise of ordinary care, could have avoided being injured. It follows that the trial court properly dismissed the cases on general demurrer.

Judgments affirmed.

I/uke and Bloodworth, JJ., eoneur.


text:
    18346.
    Lovelace-Eubanks Lumber Co. v. Martin.
    New Trial, 29 Cyc. p. 942, n. 95.
    Decided November 16, 1927.
    Complaint; from city court 'of Washington—Earl Norman, judge pro liac vice. June 24, 1927.

      Lawson E. Thompson, for plaintiff in error.

      Colley & Wynne, contra.
   Broyles, C. J.

This ease was submitted to the court without the intervention of a jury. The judgment in favor of the plaintiff was authorized by the evidence. The defendant’s motion for a new trial was based upon the usual general grounds only, and its denial by the court was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.