author: Bkoyles, C. J.

text:
    15264.
    Buehl v. Wheeless.
    Decided April 15, 1924.
    Certiorari; from Fulton superior court — Judge Humphries. October 24, 1923.

      O. H. Greenwell, Leon G. Greer, for plaintiff in error.

      Troutman & Troutman, contra.
   Bkoyles, C. J.

1. Where a petition for certiorari is not filed in the office of the clerk of the superior court within three months after the rendition of the judgment complained of, the petition is void and must be dismissed on motion. Kirkland v. Luke, 30 Ga. App. 203 (1, 3) (117 S. E. 259), and citations.

2. It appearing that the writ of error in this case must have been prosecuted for the purpose of delay only, the request of the defendant in error, that ten per cent, damages be awarded him, is granted.

Judgment affirmed, with damages.

Luke and Bloodworth, JJ., coneur.


source: Caselaw Access Project

author: Broyles, C. J.

license: Public Domain

text:
    15267.
    HOWARD v. CITIZENS & SOUTHERN BANK.
    The overruling of the general demurrer to the first count of the plaintiff’s petition, not being excepted to, was a conclusive determination that a right of action existed in favor of the plaintiff; the undisputed evidence established the plaintiff’s case as laid in that count, and the coúrt erred in directing a verdict for the defendant.
    Decided April 15, 1924.
    Complaint; from Fulton superior court — Judge Ellis. December 3, 1923.
    Application for certiorari was denied by the Supreme Court.
    The first count of the plaintiff’s petition is as follows: “1. Defendant is a corporation of said State, has an office and agent in said county, and on November 24, 1920, was engaged in doing a general banking business in said State and county.

      “2. On November 9, 1920, plaintiff’s name was Mrs. F. A. Glisson, and on said date there was issued to her a draft of which the following is a copy, to wit:
    “‘Bank of Cobbtown,
    “‘Cobbtown, Ga., Nov. 9, 1920.
    “‘On demand pay to the order of Mrs. F. A. Glisson $700.00 Seven Hundred and no/100 Dollars value received and charge same to account of Merchants & Farmers Bank, Jesup, Ga.
    J. H. Glisson, Adm’r.’
    “3. On November 34, 1930, plaintiff was a depositor in defendant’s bank, having a regular account therein, and a pass-book as evidencing said account.

      “4. On said date of November 34, 1930, plaintiff indorsed said draft in blank, deposited the same with defendant, paid defendant the sum of one (1.00) dollar as exchange thereon, and said draft was entered to the credit of plaintiff in her account with defendant, and a credit thereof entered upon her pass-book for the amount thereof.

      “§. Defendant forwarded said draft to its agent and correspondent at Jesup, Ga., to wit, the Jesup Banking Company, at Jesup, Ga., which said Jesup Banking Company presented said draft to the drawee, to wit, the Merchants & Farmers Bank, of Jesup, Ga., and said Merchant & Farmers Bank on November 37, 1930, paid to said Jesup Banking Company the amount of said draft, took up said draft, charged the amount of the same to the' account of the drawer thereof, J. H. Glisson, adm’r, and delivered said draft, marked 'Paid,’ on said date to said drawer.
    “6. Plaintiff is informed and believes that said Jesup Banking Company did not remit in cash or otherwise to defendant, as its principal, the amount of said draft so collected, but that said Jesup Banking Company suspended payment, on November 39, 1930, and was taken charge of by the superintendent of banks of the State of Georgia on said date of November 39, 1930, and that all of the assets of said Jesup Banking Company are now in the hands of State superintendent of banks.
    “7. On December 4, 1930, defendant charged back the full amount of said draft, to wit, seven hundred dollars ($700.00), against the account of plaintiff, refused to pay plaintiff said seven hundred dollars on demand therefor, and refused on demand to return to plaintiff said draft.
    “8. Plaintiff avers that the actual final payment of said draft was made by the drawee thereof and received by the Jesup Banking Company as agent of defendant on November 37, 1930, and that defendant is indebted to plaintiff in said sum, with interest thereon from said date.”

      Conyers & Wilcox, Colquitt & Conyers, for plaintiff.

      Winfield P. Jones, for defendant.
   Broyles, C. J.

1. The petition contained several counts. A general demurrer to the first count was overruled, and to this judgment no exceptions were taken. This ruling, therefore, “made the law of the case, and was a conclusive determination that a right of action existed in favor of 'the plaintiff.” The case proceeded to trial, and the undisputed evidence introduced clearly established the plaintiff’s case as laid in the first count of her petition. The plaintiff,^ therefore, was entitled to a verdict and judgment in her favor for the amount sued for in the first count of her petition (Pierpont Mfg. Co. v. Mayor &c. of Savannah, 153 Ga. 455 (1), 457 (1), 112 S. E. 462, and citations), and the court erred in directing a verdict for the defendant and in overruling the plaintiff’s motion for a new trial.

(a) As to this feature of the case, the sole contention of counsel for the defendant is that the evidence failed to prove the plaintiff’s allegation that the Jesup Banking Company, of Jesup, Georgia, was the agent of the defendant. In our opinion the evidence for the plaintiff, coupled with the evidence for the defendant, demanded a finding for the plaintiff on this issue.

2. The above ruling being controlling in the case, it is unnecessary to consider the other assignments of error.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


author: Luke, J.

text:
    15268.
    Smith v. Inman et al.

   Luke, J.

1. Where a landlord has fully parted with both possession and right of possession, he is responsible to others only for damages arising from defective construction; and neither the mere juxtaposition of a toilet and elevator nor the absence of lights in the passageway to the toilet at night constitutes such a defect. Civil Code (1910), § 3694.

2. A tenant is hot, by virtue of his tenancy, under any duty to a cotenant, or the customers of a cotenant, to keep lighted at night the passageway to a toilet placed in the tenement for the joint use of both tenants, their employees and customers. Civil Code (1910), § 4420.

3. Where a building is occupied by two tenants, one a restaurateur and the other a furniture dealer, neither- the landlord nor the furniture dealer is liable in damages for injuries to a customer of the restaurateur, where the customer, with his full natural faculties, and without any inducement from the furniture dealer, enters a dark and unfamiliar room, undertaking to feel his way to a toilet, and in so doing inadvertently steps into an elevator shaft, the door to which has been negligently left open by the furniture dealer and is invisible in the darkness, thereby falling and receiving the injuries for which the damages are claimed. Day v. Graybill, 24 Ga. App. 524 (101 S. E. 759); Ogain v. Imperial Café, 25 Ga. App. 415 (103 S. E. 594); Hendricks v. Jones, 28 Ga. App. 335 (111 S. E. 81); Miller v. Central of Ga. Ry. Co., 28 Ga. App. 635 (112 S. E. 733); Bicderman v. Montezuma Mfg. Co., 29 Ga. App. 589 (116 S. E. 225).

Decided April 15, 1924.

Action for damages; from Fulton superior court — Judge Humphries. November 6, 1923.

Hooper Alexander, D. Meyerhardt, for plaintiff.

Underwood; Pomeroy & Haas, W. G. Henson, Douglas & Douglas, for defendants.

4. The restaurateur not being joined as a party defendant in the lower court, no question respecting his liability is presented for decision.

5. Applying to the facts of this case the principles announced above, the ' court properly sustained the general demurrers of the defendants and dismissed the plaintiff’s petition.

Judgment affirmed.

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


text:
    15269.
    HOGAN v. THE STATE.
    The charge of “having, controlling, and possessing” intoxicating liquor may be established by proof of one of the acts charged.
    The evidence was sufficient to show that the accused was guilty of controlling intoxicating liquor.
    Decided April 15, 1924.
    Certiorari; from Fulton superior court — J^udge Humphries. November 8, 1923.
    . Branch & Howard, for plaintiff in error.

      John A. Boylcin, solicitor-general, B. A. Stephens, R. II. Pharr, contra.
   Luke, J.

1. The charge of “having, controlling,- and possessing” intoxicating liquors may be sufficiently established by proof that the accused unlawfully had, controlled, or possessed such liquors, each of the three acts, — to have, to control, and to possess, —being alike made penal by the statute. Barbour v. State, 21 Ga. App. 243 (1) (94 S. E. 272); Tatum v. State, 22 Ga. App. 638 (8) (96 S. E. 1046).

2. In the instant case the evidence and the defendant’s statement together tended to show, in brief, that the owner of a restaurant in the city of Atlanta placed the accused temporarily in charge of the enterprise and of the servants employed therein; that a partition with an open window, through which food and orders for food were passed, divided the building into a front and a rear room; that while the accused was so in charge of the restaurant and occupied at the front, on seeing police officers enter he called to the servants in the rear to “pour it out”; that the officers, on hurrying to the rear, discovered one of the servants leaving the kitchen sink with an empty bucket, and also discovered a strong odor of whisky about the sink, the bucket, and a number of other vessels in the same room, some of which still contained a small quantity of whisky. The accused undertook no explanation of his command, “Pour it out,” as testified to by the witnesses, but made a statement denying that he had given any such command or had any knowledge of the presence of the whisky in the restaurant prior to its discovery by the officers. It cannot be said, as matter of law, that there was no evidence to show that the accused was guilty of “controlling” intoxicating liquors as charged.

3. The sufficiency of the evidence to authorize the verdict (which was returned by a jury in the criminal court of Atlanta) being the only question presented for decision by the petition for certiorari, the judgment overruling the certiorari was not erroneous.

Judgment affirmed.

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


author: Broyles, C. J. Bloodworth, J.

text:
    15272.
    DAVIS, agent, v. PHARR COTTON COMPANY.
    Under the former decision of this court in this ease, the trial judge did not err in directing a verdict against the defendant.
    Decided April 15, 1924.
    Complaint; from Wilkes superior court — Judge Shurley. December 18, 1923.
    Application for certiorari was denied by the Supreme Court.

      Gumming & Harper, W. A. Slaton, for plaintiff in error.

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

When this case was here before, the holding of this court, as stated in the headnote (30 Ga. App. 570), was as follows: “Under the facts of this case the words ‘Via Union Compress at Augusta/ written in bills of lading issued in the State of Georgia for interstate shipments of cotton, amounted to a valid and enforceable contract requiring the carrier to compress at Augusta, Georgia, the cotton thus shipped, and did not constitute an unlawful or undue preference in favor of the shipper and against others similarly situated. The published tariffs having permitted the carrier to exercise an option as to compressing cotton, and being silent as to whether the option should be exercised with or without a contract, there was no legal reason why the option should not be exercised by contract; and there was no evidence that the carrier refused to make similar contracts with other shippers. The plaintiff was entitled to recover for breach of the contract in question, and the trial judge erred in directing a verdict in favor of the defendant.” Upon the trial now under review, as admitted in the brief of counsel for the plaintiff in error, “exactly the same evidence was introduced as at the first trial, and thereupon the court, being governed by the opinion of the Court of Appeals, directed a verdict against the defendant James C. Davis, director-general, etc.” The defendant’s motion for a new trial was overruled, and he excepted.

Under the previous ruling of this court in this case the trial court properly refused the grant of a new trial. See also, as to the merits of the case, Draper v. Ga., Fla. & Ala. Ry. Co., 21 Ga. App. 707 (95 S. E. 16).

Judgment affirmed.

Lulte, J., concurs. Bio odio or Hi, J., concurs specially.

Bloodworth, J.

The majority opinion of this court when this case was formerly before it (30 Ga. App. 370) became the law of the case, and, as I am bound by that opinion, I concur in the present judgment.


text:
    15273.
    Brown v. The State.
    Decided April 15, 1924.
    Conviction of sale of liquor; from Houston superior court— Judge Mathews. December 8, 1923.

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

      Charles E. Garrett, solicitor-general, contra.
   Broyles, C. J.

The verdict was amply authorized by the evidence, and none of the special grounds of the motion for a new trial shows reversible error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15274.
    Edwards v. The State.
    Decided April 15, 1924.
    Rehearing denied May 13, 1924.
    Assault with intent to murder; from Cobb superior court— Judge Blair. December 8, 1923.
    Application for certiorari was denied by the Supreme Court.

      Morris, Eawhins & Wallace, for plaintiff in error.

      John 8. Wood, solicitor-general, contra.
   Luke, J.

.1. In the trial of an indictment for assault with intent to murder, the person assaulted is • a competent witness against the defendant, although testimony other than his, adduced upon the same trial, may tend to show that his wife, though not jointly indicted with the defendant on trial, was in fact an accomplice of the defendant in the commission of the alleged offense, and that the ultimate object and purpose of both in so attempting to kill the husband was to remove an obstacle to adulterous intercourse, as practiced in the past and contemplated for the future, by and between the defendant and the wife of the witness. Penal Code (1910), § 1037 (4) ; Williams v. State, 69 Ga. 13 (15); Whitlow v. State, 74 Ga. 819 (2); Askea v. State, 75 Ga. 356 (3); Rivers v. State, 118 Ga. 42 (1) (44 S. E. 859).

(a) Such adultery not being alleged in the indictment, and not being in any manner an essential element of the offense charged, the rule applicable to proceedings instituted in consequence of adultery is not here in point.

2. The evidence authorized the verdict, and the record discloses no reversible error.

Judgment affirmed.

Broyles, O. J., and Bloodnoorlh, J., concur.


text:
    15276.
    Reeves v. The State.
    Decided April 15, 1924.
    Rehearing denied May 14, 1924.
    Burglary; from 'Washington superior court — Judge Hardeman. December 18, 1923.
   Broyles, C. J.

1. Whore a ground of a motion for a new trial complains of the admission of a lengthy excerpt from the testimony of a witness, over the objection that all of the excerpt was inadmissible, and it appears that at least a portion thereof was admissible, the ground is too defective to be considered by this court. Luke v. State, 26 Ga. App. 175 (1), 176 (106 S. E. 199), and citations. Under this ruling the 2d ground of the amendment to the motion for a new trial is eliminated.

2. The 3d, 4th, and 5th grounds of the amendment to the motion for a new trial complain of the admission of certain testimony offered to show a confession by the defendant. The testimony was objected to on. the ground that it did not appear that the alleged confession was freely and voluntarily made. The burden is always on the plaintiff in error to show error, and it is not made to appear from the facts stated in these grounds that the alleged confession was not freely and voluntarily made.

3. Ground 6, complaining of the admission of certain testimony, shows no reversible error. Conceding (but not deciding) that the evidence was immaterial and inadmissible, its admission, under all the facts of the case, does not require a new trial. Eurthermore, the same facts given in this testimony were related by the defendant in his statement to the jury.

4. The evidence authorized the instructions given on the law of confessions and on the law of the recent possession of stolen property — the fruits of a burglary; and these instructions were not erroneous for any reason assigned.

5. The defendant’s conviction did not depend entirely upon circumstantial evidence, and the failure of the court to charge the law of circumstantial evidence, in the absence of a written request therefor, was not error.

6. Where two or more persons are jointly indicted for burglary, and the evidence authorizes the finding, that one of them was guilty as a principal in the second degree, a verdict finding that person guilty of burglary is not contrary to law. See, in this connection, Hill v. State, 28 Ga. 604; Johnson v. State, 151 Ga. 21 (2) (105 S. E. 603).

(a) Verdicts are to be given a reasonable construction. The verdict in this case, “We, the jury, find the defendant Hilory "Reeves guilty of second degree burglary. We fix punishment minimum two years, maximum four years,” reasonably and properly construed, under all the facts of the case, meant that the defendant was found guilty of burglary as a principal in the second degree, and, therefore, under the law, guilty of burglary.

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

Judgment affirmed.

Luke and Bloodworth, JJ., eonour.

Evans & Evans, for plaintiff in error.

Walter F. Grey, solicitor-general, J. W. Warren, J. E. Hyman, contra.


author: Luke, J-.

text:
    15277.
    Barrett v. The State.
    Decided April 15, 1924.
    Indictment for manufacture of liquor; from Floyd superior court — Judge Wright. December 8, 1923.

      Porter & Mebane, for plaintiff in error.

      E. 8. Taylor, solicitor-general, contra.
   Luke, J-.

1. Where the defense of alibi is set up by the defendant’s statement alone, a charge thereon is not necessary, in the absence of a timely written request. Brundage v. State, 14 Ga. App. 460 (2) (81 S. E. 384); Reed v. State, 15 Ga. App. 435 (1) (83 S. E. 674); Sheffield v. State, 15 Ga. App. 514 (3) (83 S. E. 871); Holliday v. State, 23 Ga. App. 400 (3) (98 S. E. 386).

(a) Where the evidence offered to establish an alibi is weak and inconclusive, there is no error in the failure of the court to charge the jury specifically on the subject, in the absence of a request to give such a charge. Jenkins v. State, 13 Ga. App. 82 (1) (78 S. E. 828); Gadlin v. State, 13 Ga. App. 660 (1) (79 S. E. 751); Moore v. State, 17 Ga. App. 344 (2) (86 S. E. 822).

(&) And where, as in this case, the only evidence offered in corroboration of the defendant’s statement setting up that defense fails reasonably to exclude the possibility of the defendant’s presence at the scene of the offense at the time of its commission, and there is no written request for a charge on the law of alibi, and the court’s attention is in no way called to the omission to charge thereon until after the verdict, such omission affords no cause for a new trial.

2. The evidence authorized the verdict, and the record discloses no reversible error.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., eoneur.


text:
    15278.
    LINDALE CO-OPERATIVE STORE v. AILEY.
    1. In an ordinary suit on an account verified by the affidavit of the plaintiff, where the answer denied the material allegations of the petition and further denied indebtedness in any sum whatever, the plaintiff was under the burden of proving a contract for the sale of goods as alleged by him, and a delivery of such goods to the defendant.
    2. Proof of a contract with a corporation includes proof of the authority of the agent purporting to act for it to make the alleged contract, or proof that the contract as made was subsequently ratified by the corporation.

      3. While delivery of goods to a common carrier is not a delivery to the purchaser within the purview of the statute of frauds, yet, to be considered in this court, that statute must have been invoked in the lower court.
    4. Where, in an action to recover the contract price of goods sold, it appears that the contract, if there .was any, was made at the purchaser’s place of business, and it does not appear that the parties thereto contemplated the shipment of the goods from some other point or by any common carrier, but it appears that the seller, without any notice to or authority from the purchaser, undertook to ship them by express, proof of delivery to such carrier does not constitute a constructive delivery to the purchaser.
    Decided April 15, 1924.
    Complaint; from city court of Floyd county — Judge Bale. December 4, 1923.

      Porter & Mebane, for plaintiff in error.

      Harris & Harris, contra.
   Luke, J.

G. W. Ailey sued the Lindale Co-operative Store, a corporation, upon a sworn open account. The statement of the account annexed to the petition contained only one item, as follows: “May 10, 1920. Meat, $136.25.” There was no demurrer calling for a more specific bill of particulars. The defendant answered, denying the material allegations of the petition, and further denying that it was indebted to the plaintiff in any sum whatever. Upon the trial Ailey testified: “I am the plaintiff in this case, and sold the goods mentioned on the 10th day of May, 1920. The amount of the bill is correct, and the bill is just, true, due, and unpaid. I went to the Lindale Co-operative Store and took the order for these goods, and they were shipped from Charleston, Tennessee. I carried the goods sued for to the depot myself. They were shipped by express, and the express agent is also the freight agent at Charleston, Tennessee. I don’t know of my own knowledge that the man I delivered the goods to is the agent of either the express company or the railroad company, but he is the man who stays at the office and attends to the business of the companies, and has been for eleven years, and I have been shipping through him during that period of time. (Cross-examination.) I don’t know who the manager of the Lindale Co-operative Store was at the time I sold these goods. I went in the store where the man I talked with and others were at work. He told me he was the manager, and told me about the large amount of business they were doing, and ordered these goods from me. I cannot say that he was the manager, or that he was employed by the company; can only say that he was at work in the store at the time; he was in charge of the store, and told me -he was the manager. I don’t know whether the Lindale Co-operative Store ever received this shipment or not, and I don’t know whether the man I talked with was employed by the company or not; and, if employed, I don’t know in what capacity. I just took this order and shipped the goods on his say so, without making any investigation as to whether he Avas the manager; didn’t CAren ask him his name; -hadn’t ever seen him before, and haven’t seen him since.” J. D. Bryan, a witness for the defendant, testified: “I am the present manager of the Lindale Co-operative Store, and haAre been since July, 1930. Mr. John McCollum was manager before I took charge. I know nothing about the charge the plaintiff has against the defendant. I carefully examined the record in the office of the defendant, also of the express company in their office at Lin-dale, and there is no record of any shipment handled through the express office at Lindale, or received by the Lindale Co-operative Store from the plaintiff before or since the plaintiff claims to have sold and shipped the goods sued for.”

At the conclusion of the evidence as above set out, the court directed a verdict for the plaintiff, for $136.35 principal, and $33.39 interest. To that ruling the defendant excepted.

Under the pleadings, the burden of proof was on the plaintiff to show a contract, either express or implied, for the sale by him to the defendant of goods as set out in his bill of particulars. Civil Code (1910), § 5746; Atlantic Coast Line R. Co. v. Drake, 21 Ga. App. 81 (1) (94 S. E. 65). -Since no effort was made to prove either the quantity of the goods or the reasonable value thereof, it is certain that the plaintiff neither relied upon nor proved an implied contract. Civil Code (1910), § 5513. But did he prove an express contract ? Conceding (but not deciding) that the agreement between him and the agent of the-corporation was sufficiently definite in all its terms to constitute an express contract, the burden was still upon the plaintiff to show either that the agent had authority to make the contract for the corporation or that the corporation had subsequently ratified the agent’s act in so doing. Hassell v. Woodstock Iron Works, 137 Ga. 636 (2) (73 S. E. 1052). “It is well settled that agency is not to be presumed, and must be established by the party claiming it to exist. It is likewise settled that agency is not provable by the mere declaration of one who claims to be the agent of another.” Herrington v. Shumate Razor Co., 6 Ga. App. 861 (65 S. E. 1064). The plaintiff’s testimony that “he was in charge of the store” is, in view of the rest of his testimony, a mere conclusion of the witness, drawn in large measure from what the alleged agent himself said about it. See cases cited in 6 Cum. Supp. Enc. Dig. Ga. Eep. 75; 4 Stevens’ Dig. 3130, 3145-6. Thus, the only evidence offered by the plaintiff to establish the authority or agency of the alleged purchasing agent of the defendant corporation was his testimony as follows: “I went in the store [of the defendant] where the man I talked with and others were at work. He . . ordered these goods from me. I cannot say that he was the manager, or that he was employed by the company; . . and if employed, I don’t know in what capacity. I . . didn’t even ask him for his name; hadn’t ever seen him before, and haven’t seen him since.” For aught that testimony shows the plaintiff’s transaction could as easily have been with the janitor as with the manager or purchasing agent of the corporation.

The next question is: Did the evidence demand a finding that the meat alleged to have been sold was delivered to the defendant ? Certainly, under the pleadings, proof of delivery, either actual or constructive, was essential to the plaintiff’s case. Civil Code (1910), §4125; Loyd v. Wight, 20 Ga. 274 (65 Am. Dec. 636); Biggers v. Equitable Mfg. Co., 124 Ga. 1045 (3) (53 S. E. 573); McCoy v. Meador, 140 Ga. 253 (2) (78 S. E. 848). Actual delivery alone will suffice, where the contract declared on falls within the statute of frauds and that .statute is specially'invoked in the lower court. Denmead v. Glass, 30 Ga. 637; Knowles v. Dayries Rice Co., 10 Ga. App. 569 (73 S. E. 856). In this court the defendant seeks to invoke that statute, but appears to have made no effort to do so in the lower court; and the rule is well settled that such questions cannot be raised for the first time in this court. Johnson v. Latimer, 71 Ga. 470 (3); Bentley v. Johns, 19 Ga. App. 657 (91 S. E. 999).

The plaintiff made no effort to show actual delivery, but testified that he shipped the meat by express, and personally delivered it to the express company at Charleston, Tenn., for shipment to the defendant at Lindale, Ga. He contends that under the facts of this case such delivery constitutes constructive delivery to the defendant, even though the meat never reached its destination. But it appears, from the evidence, that the agreement relied on by plaintiff as a contract with defendant was made at the defendant’s place of business in this State, and nothing appears to show that either party then contemplated the shipment of the meat from Charleston, Tenn., or from any other place, or by any common carrier, nor does the contract of affreightment or any notice to the defendant of the shipment appear. • In that state of proof it cannot be said as matter of law that the evidence demanded a finding that delivery to the carrier was delivery to the defendant. See Park’s Ann. Code, § 4135, and notes on “ Carrier.” The facts touching these several material issues will doubtless be developed with greater fullness upon another trial of the case.

The judgment of the lower court directing a verdict for the plaintiff was clearly erroneous.

Judgment reversed.

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


text:
    15280.
    Lewis v. The State.
    Decided April 15, 1924.
    Conviction of manslaughter; from Floyd superior court — Judge Wright. December 13, 1933.

      Harris & Ennis, for plaintiff in error.

      E. S. Taylor, solicitor-general, contra.
   Broyles, C. J.

1. Under the facts of the ease it was not error for the judge to fail to charge the law of justifiable homicide in defense of property or habitation.

2. The evidence and portions of the defendant’s statement to the jury authorized the charge upon the law of mutual combat and voluntary manslaughter, and the charge was not erroneous for any reason assigned.

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

Judgment affiimed.

Luke and Bloockvorih, JJ., concur.


text:
    15282.
    Booth v. Schmoller & Mueller Piano Co.
    Decided April 15, 1924.
    Trover; from city court of Oglethorpe — Judge Greer. November 19, 1923.

      Hatcher & Smith, for plaintiff in error.

      Gilbert G. Robinson, contra.
   Broyles, C. J.

1. “Under ‘the practice act’ of 1911 (Acts 1911, p. 149, sec. 3), the fact that there'was no formal approval of the grounds of the amendment to the motion for a new trial (the only entry thereon being ‘allowed and ordered filed’) will not withdraw such an amendment from the consideration of the reviewing court, or prevent this court from determining the merits of the amendment, unless the point was first raised and insisted on before the trial judge.” Mason v. State, 18 Ga. App. 224 (1) (89 S. E. 185); Eubanks v. Shewmake Brothers Co., 30 Ga. App. 315 (1) (117 S. E. 664).

(a) This ruling is not affected by the fact that in the instant ease, by agreement of the parties, the motion for a new trial was submitted to the judge without an oral hearing thereon, and “without either counsel for movant or respondent being heard or without either participating therein. ”

2. Applying the above ruling to the facts of the instant case the motion of defendant in error, “to dismiss and strike so much of the bill of exceptions as refers to the amended motion for a new trial, and further to strike the amended motion for a new trial for the reason that the same was not approved by the trial judge as required by law,” is denied.

3. As a general rule, the testimony of a person who has knowledge of the facts from which books of account are made up is as to those facts primary evidence, and is admissible, whether or not the books themselves are put in evidence. Harper v. Hammond, 13 Ga. App. 238 (3) (79 S. E. 44); Smith v. Southern Spring Bed Co., 16 Ga. App. 449, 451 (85 S. E. 612). Applying this ruling to the facts of the instant case, the court did not err in admitting in evidence, over the objections of the defendant, the depositions of the plaintiff’s witness, as complained of in the amendment to the motion for a new trial.

(a) The ease of Creamer v. Shannon, 17 Ga. 65 (63 Am. Dec. 226), cited by counsel for plaintiff in error, is distinguished from this case by its particular facts.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15285.
    Evans v. The State.
    Decided April 15, 1924.
    Conviction of manslaughter; from Hart superior court — Judge W. L. Hodges. December 8, 1923.

      T. 8. Mason, J. E. & Emmett Skelton, for plaintiff in error.

      A. 8. Skelton, solicitor-general, Worley & Nall, contra.
   Luke, J.

1. The verdict of guilty of voluntary manslaughter was authorized by the evidence, there being testimony tending to show that the deceased was committing an actual assault, if not assault and battery, upon the wife of the accused at the moment he was shot and killed by the accused.

2. The special grounds of the motion for a new trial complain only of the charge of the court. In the light of the entire charge, none of them appears to be meritorious.

Judgment affirmed.

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


text:
    15287.
    Dillingham v. Eslinger.
    Decided April 15, 1924.
    Certiorari; from Whitfield superior court — Judge Tarver. December 15, 1923.

      W. E. & W. G. Mann, for plaintiff in error.

      F. K. McGutchen, contra.
   Broyles, C. J.

1. A wife cannot legally sign as security an appeal bond given by her husband, and where she does so sign, and there is no other security on the bond, the appeal is a nullity and the bond cannot be amended by the addition or substitution of another security, and the appeal should be dismissed on motion. Section 5707 of the Civil Code (1910), which provides that an appeal bond may be amended, and new security given if necessary, refers only to cases where the security is lawful but merely inadequate. Benson v. Shines, 107 Ga. 406 (2), 407 (2) (33 S. E. 439), and citations; Chapple v. Tucker, 110 Ga. 467, 469 (35 S. E. 643); McEachern v. Clark, 18 Ga. App. 668 (90 S. E. 367), and citations. Under this ruling the court did not err in sustaining the certiorari and dismissing the appeal.

2. The first certiorari in this case not having been heard on its merits, but being dismissed because prematurely brought, a renewal of the suit by a second certiorari was in order. Smith v. Walkeen Millinery Co., 12 Ga. App. 119 (76 S. E. 992).

3. It appearing that the writ of error in this ease must have been sued out for the purpose of delay only, the request of the defendant in error for the award of ten per cent, damages is granted.

Judgment' affirmed, with damages,

huke and Bloodworth, JJ., concur.


text:
    15288.
    Atlanta Wrecking Co. v. Harris et al.

    Decided April 15, 1924.
    Certiorari; from Fulton superior court — Judge Bell. September 25, 1923.

      Frank G. Tindall, for plaintiff.

      L. Q. & J. L. Hopkins, Fuller & Bell, for defendants.
   Luke, J.

A motion to set aside a verdict, based on the ground that the ease was tried during the absence of the movant and its counsel, was without merit, when presented after the term at which the verdict was rendered, and when it failed to show what evidence was introduced upon the trial, or what evidence, if any, the movant then desired to introduce, or would introduce upon another trial, although it appeared that the movant was without actual notice of when tlie case was to be tried, and that the movant’s attorney, who did have such notice, was in attendance upon a sick relative in another city, it appearing that the attorney neither communicated nor attempted to communicate with the court in any manner touching his absence. Chapman v. Chattanooga Oil Mill Co., 146 Ga. 91 (90 S. E. 713). Especially is this true where the movant was the plaintiff in the case.

Judgment affirmed.

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


text:
    15290.
    BRINSON v. DAVIS, agent.
    The allegations of the petition in this case showing, as a matter of law, that the plaintiff’s injuries were caused solely by negligence or want of ordinary care on the part of the driver of the automobile in which the plaintiff was riding as a guest, the railroad was not liable, and the court did not err^in sustaining the general demurrer and dismissing the case.
    Decided April 15, 1924.
    Action for damages; from Fulton superior court — Judge Humphries. November 22, 1923.
    This is a suit by E. H. Brinson against the director general of railroads, operating the Atlanta & West Point Railroad, to recover damages for personal injuries alleged to have been received in the following manner: On the night of November 21, 1919, about
    nine o’clock, T. L. Cook invited plaintiff to ride with him in his automobile to the city of Atlanta. Plaintiff accepted Cook’s invitation and they began their journey to the city, proceeding along Ashby street, which crossed a railroad-track used by the Atlanta & West Point Railroad. Cook, the driver of the automobile, approached this crossing, which was a public crossing within the city limits, at a rate of about ten miles per hour, and upon reaching the crossing collided with a train of freight-cars (which had been stopped by the defendant on the crossing), thereby upsetting the automobile and causing the plaintiff’s injuries. The petition alleged that the defendant was negligent in the following particulars: (1) in maintaining an arc-light over the right of way of the railroad in such a position as to obstruct and blind the view of plaintiff, and others using the street, of trains upon the crossing; (3) in illegally obstructing the crossing for a period of about thirty minutes in violation of a valid municipal ordinance of the city of Atlanta; (3) in failing to maintain at the crossing a flagman, gate, electric bell, or other signal to warn plaintiff and other persons, when approaching the crossing, of trains upon, approaching, and crossing over the same; and (4) in failing to toll a bell, or to give some other signal or to have a watchman at the crossing to warn plaintiff and other persons using the same that a train of cars was upon the crossing.
    The court dismissed the petition, on general demurrer, and the plaintiff excepted.

      G. N. Bynum,, for plaintiff.

      Dorsey, Brewster, Howell & Heyman, for defendant.
   Broyles, C. J.

(After stating the foregoing facts.) While it is true, as shown by the petition, that the plaintiff was a guest of the driver and owner of the automobile which collided with the defendant’s train, and, therefore, that any negligence of the operator of the automobile is not imputable to the plaintiff, it is our judgment that the plaintiff is not entitled to recover, because the allegations of his petition show as a matter of law that his injuries were occasioned solely by the negligence or want of ordinary care of the driver of the automobile in driving his machine upon the crossing when he could not see what was upon the crossing; and that the acts of negligence alleged against the defendant did not contribute to, or concur with the negligence of the driver in bringing about, the plaintiff’s injuries. The cases cited and relied on by counsel for the plaintiff in error are distinguished by their particular facts from the case at bar. In this ease the operator of the automobile did not attempt to drive over a crossing in front of a moving train or drive around a standing train, but, in the language used in the brief of counsel fox the defendant in error, “He, with the plaintiff sitting by his side, carelessly and recklessly, and, to accept his own statement, blindly and being unable to see, undertook to go through the freight-train. Here was an obstruction which would have been seen had the party in the automobile looked, provided the headlights on the automobile were working and illuminating the road in front of the automobile in accordance with the State law.” It follows from what has been said that the court did not err in sustaining the general demurrer to the petition and in dismissing the case. ■

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


text:
    15293.
    Crider v. Hughes.
    Decided April 15, 1924.
    Certiorari; from Fulton superior court — Judge Humphries. November 24, 1923.

      W. A. James, for plaintiff in error.

      A.'G. Minhinnett Jr., contra.
   Broyles, C. J.

Under all the facts of the case it does not appear that the overruling of the certiorari was error.

Judgment affirmed.

Luhe and Bloodworth, JJ., concur.


text:
    15296.
    Terrell v. Clarke.
   Broyles, C. J.

1. The petition as amended failed to set out a cause of action, and the court did not err in dismissing it on the general demurrer interposed.

2. Courts of record retain full control over all their judgments during the term at which they are rendered, and in the exercise of a sound legal discretion may revise or vacate, or refuse to revise or vacate, such judgments; and that discretion, unless manifestly abused, will not be. controlled by the reviewing court. Bowen v. Wyeth, 119 Ga. 687 (1, 2) (46 S. E. 823).

(a) “Where a general demurrer was sustained, and the'plaintiff during the same term moved to reinstate, offering to amend so as to cure the alleged defects in the original petition, this court will not interfere with the judgment refusing to permit the reinstatement.” Bowen v. Wyeth, supra (3).

3. Under the above ruling and the facts of the instant case, this court cannot hold that the lower court abused its discretion in overruling the motion to vacate the judgment dismissing the amended petition on general demurrer, and to allow further amendment to the petition.

Decided April 15, 1924.

Action for damages; from Fulton superior court — Judge Humphries. December 15, 1923.

IF. II. Terrell, for plaintiff.

Westmoreland & Westmoreland, Sidney Smith, for defendant.

Judgment affirmed.

Luhe and Bloodworth, JJ., concur.


text:
    15298.
    JONES v. CITY OF ATLANTA.
    A conviction of keeping a rooming house without a permit, in violation of a municipal ordinance, was not supported by evidence showing that the house was operated by the defendant’s wife and in her name alone.
    Decided April 15, 1924.
    Certiorari; from Fulton superior court — Judge Humphries. December 4, 1923.

      G. G. Battle, for plaintiff in error.

      J. L. Mayson, Jesse M. Wood, contra.
   Broyles, C. J.

The defendant was convicted in the recorder’s court of the City of Atlanta for conducting a rooming house without a permit from the city authorities, in violation of an ordinance of the City of Atlanta. The evidence showed that at one time a permit to conduct the house in question as a rooming house had been granted to the defendant’s wife, but that this permit had been revoked, and that the premises continued to be operated as a rooming house. There was, however, no evidence introduced which showed that the defendant conducted it as a rooming house. On the contrary, the undisputed evidence disclosed that the rooming house was operated by his wife and in her name alone. It follows that the conviction of the defendant was not authorized by the evidence, and that the court erred in overruling the certiorari.

Judgment reversed.

LuJce and Bloodworih, JJ., concur.


author: Bloodworth, J.

text:
    13745.
    AVERY & CO. v. SORRELL.
    1. The courts of this State have no “jurisdiction” or authority after the trial term to open a judgment by default.
    2. An order entered after the trial term, opening a judgment of default, is void.
    3. Where a motion was made after the trial term to open a judgment of default, and counsel for the opposite party acknowledged service on the motion and made no objection to the order opening the default, and the defendant thereafter filed a plea, and the case was tried on its merits and a verdict was rendered in favor of the defendant, and the plaintiff filed a bill of exceptions in which there was no exception to the judgment opening the default, and in which the judgment was not attacked either directly or collaterally, and where the case was heard and decided by the Court of Appeals, and the default judgment was not attacked in any way until the third trial after the judgment of default was
    . opened, when it was attacked collaterally, the plaintiff in such case is estopped from raising the question that the judgment opening the default was void.
    4. When considered in connection with all the evidence and the remainder of the charge,' the excerpt from the charge of which complaint is made in the fourth ground of the motion for a new trial presents nothing that requires a reversal.
    5. This court cannot say that the verdict is without evidence to support it.
    Decided April 16, 1924.
    Trover; from Colquitt superior court — Judge W. E. Thomas. June 8, 1922.

      Dowling & Whelchel, for plaintiffs.

      W. F. Way, for defendant.
   Bloodworth, J.

The 1st, 2d and 3d headnotes are in the language of the Supreme Court, and are the answers given to questions certified by this court. Eor the full opinion of the Supreme Court, see 157 Ga. 476 (121 S. E. 828). It is necessary only to add that the principle announced in headnote 3 disposes of the questions raised by the exceptions pendente lite and grounds 5, 6, and 8 of the motion for a new trial, and of one of the contentions in ground 7 of the motion, adversely to the contention of plaintiff in error, and that there is no. merit in the additional contention in ground 7 that certain evidence was admitted over the objection of defendant that “the foreclosure papers testified about by said witness would be the highest and best evidence.”

Judgment affirmed.

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


author: Bloodwortii, J.

text:
    14783.
    Peoples Bank of Richland v. Farmers State Bank.
    Decided April 16, 1924.
    Action for damages; from Stewart superior court — Judge Little-john. June 12, 1923.

      G. Y. Harrell, for plaintiff in error.

      B. 8. Wimberly, contra.
   Bloodwortii, J.

1. A first mortgagee of chattels, whose mortgage has been duly executed and recorded, “is entitled to have preserved in its integrity his lien upon the mortgaged property until such time as he may see proper by foreclosure to enforce the payment of the debt secured; and by virtue of his interest as mortgagee, he may maintain an action on the case” as against a junior mortgagee having actual notice of the first mortgage, who wrongfully impairs his security, “and in such action may recover, to the extent that his security has been thus diminished, damages within the value of the mortgaged property and not in excess of the debt secured.” Benton v. McCord, 96 Ga. 393 (23 S. E. 392); Harris v. Grant, 96 Ga. 211 (1), 213, 214 (23 S. E. 390).

2. Since the cause of action in the instant case arose by virtue of the impairment of security (actual notice of the prior lien being admitted by defendant), and the measure of damages was “the value of the property received and disposed of by the defendant, not, of course, exceeding the amount due upon the mortgage,” evidence as to the value of property of the mortgagor, other than that wrongfully disposed of by the defendant, was irrelevant and immaterial, and the court properly rejected it.

3. There was ample evidence to support the verdict, which is approved by the trial judge; no error of law appears, and the court properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Lulce, J., coneur.


author: Luke, J. Luke, J.

text:
    14945.
    NEWARK FIRE INSURANCE COMPANY v. REESE.
   Luke, J.

1. This is a suit upon a fire-insurance policy which provided that, within 60 days after the destruction of the property by fire, the assured.should render a statement to the insurance company, signed and sworn to by him, stating the loss or damage, the time, the place, and the cause of the damage, etc. A compliance with this provision of the policy was a condition precedent to a recovery; and the evidence adduced upon the trial shows that the proofs of loss submitted to the insurance company were not signed or sworn to by the assured.

(a) The policy provided also that “no officer, agent, or other representative of this company shall have power to waive any of the terms of this policy unless such waiver be written upon or attached hereto.” No such waiver was written upon or attached to the policy.

(&) The evidence shows also that the insurance company did not refuse payment until more than 60 days after the destruction of the property by fire, .and, therefore, this refusal to pay did not amount to a waiver of the provision of the policy in reference to proofs of loss. See Phenix Ins. Co. v. Searles, 100 Ga. 97 (4) (27 S. E. 779); Bailey v. First Nat. Fire Ins. Co., 18 Ga. App. 213 (89 S. E. 80).

Decided April 16, 1924.

Rehearing denied May 13, 1924.

Action on fire-insurance policy; from city court of Newnan— Judge Post. July 25, 1923.

Application for certiorari was denied by the Supreme Court.

Spalding, MacDougald & Sibley, Hall & Jones, for plaintiff in error.

Stanford Arnold, contra.

2. Under the above rulings the court erred in refusing to grant a nonsuit.

Judgment reversed.

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

ON MOTION FOE REHEARING.

Luke, J.

It is contended by the defendant in error in his motion for a rehearing, (1) that the acceptance and retention, without objection, by the insurance company of the proofs of loss constituted a waiver of any defects therein; and (2) that the proposal of the adjuster of the company to pay the insured $500,— a sum less than the full amount 'claimed, — amounted to an absolute refusal to pay in less than 60 days of the loss, and was a waiver of the provisions of the policy in reference to the proofs of loss.

Under the facts of the case there is no merit in either of these contentions. As to the first point, there is no affirmative proof in the record that the alleged proofs of loss were submitted to the insurance company within 60 days after the loss or that they were ever actually received by the company. Moreover, the undisputed evidence shows that the proofs of loss were not sworn to or even signed by the insured, or by any one acting as his agent. In fact, it is not disclosed by the evidence that they were sworn to or signed by any one. Such a document amounted to nothing but a “scrap of paper,” and the submission of such a paper to the insurance company could not constitute a bona fide attempt on the part of the insured to comply with the provisions of the policy in reference tb furnishing proofs of loss.

As to the second contention, in view of the provision of the policy that “no officer, agent, or other representative of this company shall have power to waive any of the terms of this policy unless such waiver be written upon or attached hereto; nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the assured unless so written or attached/’ the mere offer of an adjuster of the company to pay the insured $500 could not amount to an absolute refusal on the part of the company to pay the claim of the insured, and the company could not be held thereby to have waived the provisions of the policy in reference to the submission of the proofs of loss. See, in this connection, Folds v. Fireman’s Fund Ins. Co., 28 Ga. App. 323. The cases cited in the motion for a rehearing are distinguished by their particular facts from this case.

Motion denied.

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


author: Bloodworti-i, J. Bloodworth, J.

text:
    14963.
    KILPATRICK v. SMITH.
    In a certiorari case tlie answer of the trial judge is the only source from which knowledge of the facts of the case and the rulings therein can he derived by the reviewing court.
    Decided April 16, 1924.
    Rehearing denied May 13, 1924.
    Certiorari; from Fulton superior court — Judge Humphries. June 28, 1923.
    Application for certiorari was denied by the Supreme Court.

      V. II. Gaddis, A. W. White, Neufville & Neufville, for plaintiff in error.

      Philip Weltner, contra.
   Bloodworti-i, J.

This court cannot say, under the record as brought to it, that the judge of the superior court erred in overruling the certiorari in this case. Basing its ruling on that of the Supreme Court in Buckner v. State, 115 Ga. 238 (41 S. E. 583), and Colbert v. State, 118 Ga. 302 (45 S. E. 403), this court, in Gilmore v. Georgian Company, 17 Ga. App. 759 (88 S. E. 416), held that “in a certiorari case the answer of .the trial judge is the only source from which knowledge of the facts of the case and the rulings made therein can be derived.” In the record we are now considering the answer of the judge who tried the case is not specified as material to a clear understanding of the errors of which complaint is made, and it 'does not appear in the record, nor does it appear that any answer was ever made. However, there is specified as material “the agreement of counsel to use the petition for certiorari as a true statement of facts.” Even this agreement was not incorporated in the record. But under the ruling in the foregoing eases, if it were before us it would avail plaintiff in error nothing. It is possible, though hardly probable, that a case might arise where counsel would agree upon a statement of facts in direct conflict with the answer of the judge who tried the case.

Judgment affirmed.

Broyles, O. J., and Buhe, J., concur.

ON MOTION ROE REHEARING.

Bloodworth, J.

In the motion for a rehearing in this case the plaintiff in error “most respectfully asks this court to vacate its judgment of affirmance of April 16, 1924, in said case, grant a rehearing, require the clerk of the superior court to send up the record in the ease, and permit the suggestion of the .diminution of the same should the record so sent up fail to meet the technical •requirements made and provided, all of which is hereby prayed by reason of and upon the following grounds:

“First: (a) Because it seemingly appears that the court overlooked the fact that it had before it no record on which to base a judgment of affirmance. (Z>) Because it seemingly appears that the court overlooked the fact that what purported to be the record in said case was a copy of a certiorari which had been sustained by Judge Geo. L. Bell, judge of the superior court, on a prior date, and the effect of the affirmance of this judgment would be to ap-. prove the grant of a new trial, (c)' Because it seemingly appears that the court overlooked the fact that this appeal was taken from the judgment and order of the Honorable John D. Humphries, judge, of [on?] June 28th, 1923, whereas it appears that the judgment affirmed was that of Judge Geo. L. Bell, of Fulton superior court on November 21, 1922. (d) Because it seemingly appears that the court overlooked code section 6159 (Park’s), subsections four and five.”

From this motion it appears that in this case there have been two petitions for certiorari, one of which was heard by Judge George L. Bell, who sustained the certiorari, and the other by Judge John D. Humphries, who overruled the certiorari. When this court originally entered upon a consideration of this case there was nothing in the record to show that the wrong record had been sent up. It is true that there is in the record a judgment signed by Judge Bell on November 21, 1922, but this was not “intituled in the cause,” and was a judgment sustaining a certiorari, whereas the bill of exceptions shows that the judgment excepted to was rendered June 28, 1923, and was an order overruling the certiorari. In their briefs counsel for each party argued the case in which the certiorari had been overruled. It was patent that the judgment in the record was not the one excepted to, because had that judgment been rendered in this case, as it was in favor of plaintiff in error, he would not have excepted to it. Before this court first passed upon the case the propriety of ordering-sent up the judgment of June 28, 1923, was discussed, but inasmuch as it was apparent that the order in the record was not the one excepted to, and as it was also apparent, as shown by the opinion of this court, that there was in the record no answer by the judge who tried the case, and as the record did not show that any answer was ever made by said judge, the judgment was not. ordered sent up. To have had this judgment before us would have availed nothing. The record showed no answer, and the only thing this court could do was to affirm the judgment excepted to, and it mattered not whether that judgment was one overruling or sustaining the certiorari. The effect of the judgment of this court is to affirm the judgment rendered June 28, 1923, that being the judgment overruling the certiorari and which is named in the bill of exceptions, and the one referred to in the briefs of counsel for both parties.

In the motion for a rehearing it is insisted thát this court did not have before it the proper record in this case. Counsel before arguing their cases should see to it that the records which come to this court are correct; and if incorrect or incomplete, they should take such legal action as may be necessary to have correct records before the court. After the case is argued and the court has announced its decision it is too late to require the clerk of the superior court to certify and send up a record entirely different from that originally brought up. The object of granting a rehearing in this court is to enable the court to correct any error it may have committed in the case made by the record then before it, and not to enable counsel to have á new and entirely different record brought up. The members of this court are earnest in their desire to have the records on which they pass absolutely correct, and this end can be attained only by the help and eo-operation of those who prepare these records. We would suggest to the lawyers and to the clerks of the various courts that they look more closely after the records that are sent to the appellate courts. Hardly a day passes that the members of this court (and we presume the same is true of the members of the Supreme Court) do not discover errors in copying that would be detected and corrected by the attorneys and clerks if they took the time to carefully read the transcripts of the records before transmission of the transcripts to the appellate courts.

We could call attention to many of these “oversights,” but two will suffice. The first of these is in a case from the court from which the case now under consideration came. In that case the following is found in the bill of exceptions: “And upon hearing and after argument upon said exceptions of law by the plaintiff, the court did thereupon enter an order sustaining said exceptions of law; said order being as follows: ‘The within exceptions of law coming on for a hearing after argument the same is hereby overruled. This March 28, 1923. Geo. L. Bell, Judge Superior Court Atlanta Circuit.’ To the ruling and judgment of said court in sustaining said exceptions of law the defendant then and there excepted.” (Italics ours.) The other is from a different court, and the record in that case shows that during the trial an ordinance was offered in evidence and objected to. Counsel asked that the discussion of its admissibility be argued in the absence of the jury. The record shows that “when said ordinance was offered in evidence the court directed that the jury be executed, and the jury was executed.” (Italics ours.) We can readily see that there are times when the judge should “excuse” a jury, but we know of no authority that he has to direct the execution of a dozen men without the semblance of a trial. The record from which we have just quoted says, “and the jury was executed.” Our curiosity is aroused to know who acted as executioner.

Rehearing denied.

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


text:
    14969.
    Brooks v. Ball et al.

    Decided April 16, 1924.
    Complaint; from city court of Bainbridge — Judge Spooner. July 23, 1923.
    Application for certiorari was denied by the Supreme Court.

      Harrell & Ouster, for plaintiff in error. J. O. Hale, contra.
   Bloodwortii, J.

1. The evidence failing to establish the fact that “Mr. Conger” was the agent of plaintiff, the court did not err in excluding the following evidence of Mrs. Brooks, the defendant: “I told Mr. Conger when I indorsed the note that I would not be responsible for the payment of it.”

2. The defendant having pleaded an affirmative defense and admitted a prima facie case and assumed the burden of proof, and having failed to establish her defense, the court did not err in directing a verdict for the plaintiff.

Judgment afjvrmed.

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


author: Broyles, C. J. Bloodworth, J.,

text:
    15111.
    HARRIS, for use, etc., v. ÆTNA INSURANCE COMPANY.
    The assignment written on the back of the “mortgagee clause” attached to the fire-insurance policy and signed by the person there named as mortgagee, in which it is stated that “The title to property described herein, and the debt which said property was conveyed to secure, having been this day transferred and assigned to C. C. Griffin, . . all rights hereunder are hereby transferred and assigned to said C. C. Griffin,” must bo construed as referring to rights under the policy, and not to any rights that the assignor had under an agreement amounting to an accord and satisfaction between him and the insurance company as to the claim arising from destruction of the insured property by fire, upon which agreement this suit was brought by the insured for the use of the above-named transferee. The court therefore did not err in dismissing the action, on general demurrer.
    Decided April 16, 1924.
    Rehearing denied May 14, 1924.
    Complaint; from city court of Americus — Judge Harper. October 12, 1923.

      B. L. Maynard, for plaintiff.

      Spalding, MacDougald & Sibley, James W. Smith, for defendant.
   Broyles, C. J.

When this case was here before, the suit was upon a policy of insurance, and this court held that under the evidence submitted the contract of insurance sued upon had been extinguished by a subsequent agreement entered into by Forman (the mortgagee named in the mortgagee clause attached to the insurance policy) and tlie insurance company, and that this agreement amounted to an accord and satisfaction binding upon both parties. Ætna Insurance Co. v. Griffin, 28 Ga. App. 774 (2) (113 S. E. 224). The suit now under review is upon the new agreement entered into by Forman and the insurance company, and was brought by Mrs. Harris, the insured, for the use of C. C. Griffin, the transferee of Forman, under the following assignment (which was subsequent to the new agreement and written upon the back of the mortgagee clause attached to the policy of insurance) : “The title to property described herein, and the debt which said property was conveyed to secure, having been this day transferred and assigned to 0. C. Griffin of Sumter County, Ga., all rights hereunder are hereby transferred and assigned to said C. C. Griffin. This Nov. 29, 1919. George M. Forman. Witness: E. Larson.”

The words in the assignment, to wit, “all rights hereunder are hereby transferred and assigned to said C. C. Griffin,” must be construed as referring to all rights under the policy of insurance, and not to any rights which Forman may have had under the new agreement. The plaintiff, therefore, had no right to sue upon that agreement, and the court properly dismissed the petition upon general demurrer.

Judgment affirmed.

Lulce, J., concurs. Bloodworfh, J., concurs specially.

Bloodworth, J.,

specially concurring. Because I am bound by the majority opinion in the case of Ætna Ins. Co. v. Griffin, supra, I concur in the judgment in this case.


text:
    15164.
    Central of Georgia Railway Co. v. Cox.
    Decided April 16, 1924.
    Certiorari; from Effingham superior court — Judge Strange. October 16, 1923,
   Bloodworth, J.

The presumption that the defendant railroad company was negligent, which arose from proof of damage to the plaintiff’s property by the running of the defendant’s train, was satisfactorily met; it being shown that the defendant exercised all reasonable care and caution to prevent the damage. The verdict against the company was, therefore, contrary to the evidence, and the court erred in overruling the certiorari.

Judgment reversed.

Broyles, O. J., and Lithe, J., oonour.

The suit was for injuries to the plaintiff’s Holstein heifer. The only witness in his behalf as to the striking of the heifer by the defendant’s train testified that the train killed a cow belonging to another person, and that the Holstein heifer belonging to the plaintiff was struck and walked off; that the point where the train struck her was about 300 yards below the depot at Guyton and about 20 yards below the public-road crossing when the train was slowing down to stop at Guyton; that this cow looked to him as if she -were on the track, but he was off to one side, on a veranda, and a sidetrack was between him and the main track on which the train was running, and the cow might have been on the side-track when the train was approaching; that the railroad curves at the point where she was struck, and that he could not say whether the bell on the engine was rung and the whistle blown. The fireman of the locomotive testified: “I was on the box looking ahead. I started to ring the bell for the public-road crossing that is about 300 yards below the station at Guyton, when about 150 yards below it. I was ringing the bell when the cow was struck. When I started to ring for the road crossing I kept ringing until we passed the crossing. The cow that was killed was off from the track and started to the track just in time to get on it and get knocked off. Mr. Callahan (the engineer) had applied the brakes to slow down for the stop at Guyton. He was blowing the whistle for the public-road crossing. He started to blow before the cow that was killed started towards the track. He was blowing the public-road-crossing whistle when the cow was struck. I never saw the Holstein cow that they say was hit at the same time. The track curves there where the cow was killed. We did all we could to prevent the killing of the cow.” The engineer testified: “As the train was slowing down for the depot at Guyton some cows were near the track . . a few yards below the public-road crossing, I was blowing the public-road-crossing whistle when the cow that was killed started toward the track. This was not a Holstein cow, but a brown cow. When I saw the ’ cow start towards the track I applied the emergency brakes. I could not kick open the cylinder-cocks, as I had the brakes applied and had done shut off for the stop at Guyton, I was up on the box looking ahead before we reached the post that is the signal for us to blow for the road crossing. The fireman was on the box and ringing the bell for the road crossing. He started to ringing about 150 or 200 yards below the crossing. The cow was struck about 15 or 20 yards below the crossing. We did all that we could have done to prevent the killing of the cow, and I never saw the Holstein cow that is said to have been injured. It was impossible to prevent it. . . , The road is on a curve. The post that is a signal for us to blow for the public-road crossing is about 150 or 200 yards below the crossing. I was blowing for the public-road crossing the signal that the law requires and the rules of the road. I do think that it is more important to blow for the crossing the signal required than to blow the shorter blows that are usually used to frighten cows from the track, because a human life may be involved. I was doing what the State law requires and the rules of the road require. We did all that we could do to prevent killing the cow. I never did see the Holstein cow said to have-been injured. I could have seen her if she had been on the track. It is true that sometimes cows run against the side of the engine and are knocked down. This Holstein cow could have been hurt in this way.”

C. T. Guyton, for plaintiff in error,

cited: 99 Ga. 245; 82 Ga. 190; 3 Ga. App. 197.

H. P. Cobb, contra.


author: Bloodworm, J.

text:
    15171.
    Clifton v. Carson Naval Stores Co.
    Decided April 16, 1924.
    Action on contract; from Toombs superior court — Judge Hardeman. September 10, 1923.

      Wimberly E. Brown, for plaintiff in error.

      Hitch, Denmark & Lovett, I. H. Corbitt, contra.
   Bloodworm, J.

“No brief filed in this court by an attorney who, at the time the case to which such brief relates is called in its order for a hearing, is not a licensed practitioner at this bar, will be considered; and . . where no appearance is made for the plaintiff in error other than by the filing of such brief, the case will be dismissed for want of prosecution.” Brice v. Chapman, 95 Ga. 799 (2) (22 S. E. 525). Under the foregoing ruling the writ of error in this case must be

Dismissed.

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


text:
    15172.
    Scott v. The State.
    Decided April 16, 1924.
    Conviction of burglary; from Houston superior court — Judge Malcolm D. Jones. October 27, 1923.

      Norman E. English, for plaintiff in error.

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

The conviction of the defendant being dependent upon the evidence of an accomplice, and there being no corroborating circumstances which in themselves and independently of the testimony of the accomplice directly connect him with the crime, it was error to overrule his motion for a new trial. See Baker v. State, 14 Ga. App. 578 (4) (81 S. E. 805), and cases cited.

Judgment reversed.

Broyles, G. J., and Blood/worth, J., concur.


text:
    15175.
    FLOWERS v. GEORGIA NORTHERN RAILWAY COMPANY.
    Whether delivery by the carrier was made in a reasonable time was a question for the jury, under the evidence in this case, and the court erred in directing a verdict for the defendant.
    Decided April 16, 1924.
    Action for damages; from Colquitt superior court — Judge W. E. Thomas. November 9, 1923.

      Hoyt H. Whelchel, for plaintiff.

      J. J. Hill, J. 0. Gibson, for defendant.
   Bloodworth, J.

At Moultrie, Ga.,- W. M. Flowers delivered to the Georgia Northern Railway Company a carload of watermelons, to be transported to Atlanta, Ga., and there delivered to R. T. Cook. The question as to whether or not the melons were delivered or tendered to Cook within a reasonable time was one peculiarly for determination by the jury, the evidence on this point being conflicting; and the judge erred in directing a verdict, and in overruling the motion for a new trial. Saunders v. Payne, 29 Ga. App. 615 (4) (116 S. E. 349); Stewart v. Citizens & Southern Bank, 30 Ga. App. 112 (2) (117 S. E. 115).

Judgment reversed.

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


text:
    15184.
    SMITH v. BARR, for use, etc.
    Where refusal to grant a nonsuit is followed by a verdict for the plaintiff which in a motion for a new trial the defendant complains of as unsupported by evidence, and exception is taken to the overruling of the motion for a new trial, an exception to the refusal of a nonsuit will not be considered.
    Some of the grounds of the motion for a new trial are not in proper form for consideration, no error of law appears, and the verdict is supported by evidence.
    Decided April 16, 1924.
    Lien foreclosure; from city court of Atlanta — Judge Reid. November 3, 1933.
    Application for certiorari was denied by the Supreme Court.

      Anderson & Slate, for plaintiff in error.

      Etheridge, Sams & Etheridge, contra.
   Bloodworth, J.

1. The court did not err in its rulings on the pleadings.

3. Under repeated rulings of the Supreme Court and of this court a refusal to grant a nonsuit will not be considered by the reviewing court where the case proceeded to verdict and judgment in favor of the plaintiff, and the defendant’s motion for a new trial embraced the ground that the verdict was not authorized by the evidence.

3. The court did not err in the rejection of oral testimony as complained of in several grounds of the motion for a new trial..

4. Ground 8 of the amendment to the motion for a new trial, complaining of the court’s refusal to allow a witness to answer a certain question, is without merit, as it does not appear that the court was informed as to what answer was expected from the witness.

5. There is no merit in the 9th ground of the amendment to the motion- for a new trial.

6. The 10th ground of the amendment to the motion for a new trial, complaining of the exclusion of documentary evidence, cannot be considered, as the evidence is not set forth in the ground nor attached thereto as an exhibit.

7. No error appears in the excerpt from the charge of the court as complained of, when the excerpt is considered in the light of the entire charge and the facts of the case.

8. The evidence on the main issues in this case was in conflict. The jury, the final arbiters of the facts, decided in favor of the plaintiff. In passing on the facts in a motion for a new trial, the judge of the trial, court has some discretion, but where he has exercised that discretion this court is powerless to interfere. Our Supreme Court has said'. “This court has always recognized that the greatest weight and consideration should be paid to the verdicts of juries, and in many cases has held that while the verdict was different from what the judges would have rendered as men, the court would not interfere. So, too, where the evidence was conflicting, it would not disturb the finding, although it might think ■ that the preponderance was in favor of the losing party. In testing the sufficiency of evidence this court cannot consider the credibility of witnesses, that being a matter exclusively for the jury, who note their'manner of testifying, and consider the thousand and one things transpiring during a trial, which cannot be photographed or transcribed and transmitted to this court as a part of the record.” Patton v. State, 117 Ga. 234 (43 S. E. 534). The 4th headnote in the case of Bunn v. Hargraves, 3 Ga. App. 518 (60 S. E. 223), is as follows: “This court has no power to determine that the preponderance of the evidence is in favor of one party to a cause rather than the other, or to award a new trial in any case where there is any evidence sufficient to support the verdict rendered.” See also Randall v. Bell, 12 Ga. App. 614 (77 S. E. 1132); Collins v. Brown, 21 Ga. App. 420 (94 S. E. 645); Bradham v. State, 21 Ga. App. 510 (94 S. E. 581).

9. Applying the foregoing to the facts as they appear in the present record, the judgment overruling the motion for a new trial must be Affirmed.

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


author: 'Bloodworth, J.

text:
    15252.
    TURMAN v. THE STATE.
    The charge of the court as to a confession or incriminatory admission was not subject to the exception that it was not authorized by evidence.
    The verdict was supported by evidence, and no error of law appears.
    Decided April 16, 1924.
    Conviction of manufacture of liquor; from Walker superior .court —Judge Wright. December 15, 1923:

      Porter & Mehane, for plaintiff in error.

      E. S. Taylor, solicitor-general, contra.
   'Bloodworth, J.

1. The special ground of the motion for a new trial complains of the following excerpt from the charge: “The State has introduced evidence of what it claims to be a confession or incriminatory admission on the part of the defendant. I charge you that a confession must be scanned with care and received with great caution, must be free and voluntarily made, without the slightest hope of benefit or remotest fear of injury, and a confession alone will not authorize a conviction unless corroborated by other evidence. So look to the evidence and see of [if] a confession was made or any incriminatory admission by the defendant; if so, see whether it has been corroborated sufficiently to authorize you to convict.” In passing on assignments of error this court is confined to those specifically made. The sole assignment of error in this ground is that “nowhere in the evidence was there anything authorizing or requiring said charge; that there was no evidence of any confession or incriminatory admission on the part of the defendant.” The record shows several instances of, abundant evidence as to, incriminatory admissions, and this ground is therefore without merit.

2. The evidence authorized the conviction of the accused, and, as no error of law was committed, the judgment is

Affirmed.

Broyles, G. J., and LuTce, J., concur.


text:
    15270.
    Wellborn v. The State.
   Bloodworth, J.

1. “ Where the trial judge promised that certain testimony, which counsel for the accused had moved to exclude on the ground that it did not connect the accused with the crime for which he was being tried, would be excluded unless such connection were shown, failure to make any subsequent motion to exclude it could be treated by the court as a waiver of the objection, and failure to exclude it is not cause for a new trial.” Quinn v. State, 22 Ga. App. 632 (2) (97 S. E. 84). See also eases cited in the opinion (p. 634), and Goldberg v. State, 25 Ga. App. 200 (7) (103 S. E. 90), and citations. The principle announced in the foregoing' cases disposes of special grounds 1, 2, and 3 of the motion for a new trial.

2. It is alleged that the court erred in admitting, over the objection that the evidence was irrelevant and immaterial, the following testimony for the State: “I went twice to the apartment house of Mr. Miller on West Peachtree street. I went into the room that was occupied by Mrs. Spillane. I saw some socks there at the time when I was there. I didn’t know at that time they were Mr. Miller’s. I saw about three pair, I believe, there.” To ascertain who are Mr. Miller and Mrs. Spillane, and whether this testimony is irrelevant as contended, would require reference to some other portion of the record. See Franklin v. State, 28 Ga. App. 460 (1b, c) (112 S. E. 170). The ruling in that ease disposes of this ground of the motion for a new trial.

Decided April 16, 1924.

Indictment for robbery; from Fulton superior court — Judge Humphries. December 8, 1923.

II. A. Allen, Hall & Finch, for plaintiff in error.

John A. Boylcin, solicitor-general, F. A. Stephens, R. II. Pharr, contra.

3. There is some evidence to support the verdict.

Judgment affirmed.

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


author: Bloo.dwortii, J.

text:
    15275.
    WINTERS v. THE STATE.
    The contract as set out in the accusation in this case — a prosecution under the “labor-contract law” (Penal Code of 1910, § 715) — was too indefinite to be the basis of a criminal prosecution; and although there was no demurrer by the defendant, the evidence for the State was insufficient to warrant a conviction, as it failed to show upon what particular farm belonging to the prosecutor and in the county named the defendant agreed to work.
    Decided April 16, 1924.
    Accusation of cheating and swindling; from city court of Dawson — Judge Edwards. December 17, 1923.

      R. R. Marlin, for plaintiff in error.

      W. II. Gurr, solicitor, contra.
   Bloo.dwortii, J.

The defendant was convicted of violating the “labor-contract law.” Because of the nature of this law, and lest it be abused, the courts have been strict in requiring the State to allege and prove those things which, under the statute, are necessary for a conviction. It has been held that the State must show “that there was a distinct and definite contract for service;” that there was no good reason why the contract was not performed, or no good reason why the accused did not return the money advanced to him; that the particular place where the labor is to be performed “must be so located and identified by the evidence as to establish a contract to labor at a certain and definite” place; and that the time for such labor must be specifically shown. Hnder these rules the evidence in the case under consideration is in several respects not entirely satisfactory. For example, the prosecutor swore that the defendant did not perform the labor or pay back the money advanced, but neither his testimony nor that of any other witness showed “that there was no good reason why the contract was not performed, or no good reason why the accused did not return the money advanced to him.” Mobley v. State, 4 Ga. App. 78 (60 S. E. 803). On the contrary, the prosecutor’s evidence, if taken alone, might reasonably be construed as showing a good reason why the defendant could not perform his contract of labor or pay back the money advanced; the prosecutor having testified: “Soon after January 1st, when he failed to show up and-commence work, I took out a warrant -against him and turned it over to Mr. Turner, sheriff of Terrell county. I did not see him any more. I heard afterwards-that he was in the chain-gang in ^Randolph county. I never did see him from the time he,was to commence work on January 1st until a few days before he was arrested, and that was just before this accusation was sworn out.” Under this evidence the defendant may or may not have been in the chain-gang in January. If he was in the chain-gang he could not perform his contract of labor with the prosecutor. Moreover, since the labor was to be performed in the year 1920, if the prosecutor did not. see him “from the time he was to commence work on January 1st [1920] until a few days before he was arrested” in 1923, the prosecutor could not know of his own knowledge whether or not the defendant was able to perform his contract of labor for the year 1920.

The accusation alleges that the defendant was “to work as a wage hand on the crop of Acy Bichardsón for the year 1920.” This is the only description in the accusation of the place where the labor was to be performed. It fails to show the particular location of the farm.on which the crop was to be raised, or even the county in which it was located. The evidence discloses the county but fails to locate or identify the farm. Under the ruling in Gatlin v. State, 16 Ga. App. 232 (3) (84 S. E. 973), and cases there cited, the contract as Set out in the accusation “was too indefinite to be the basis of a criminal prosecution; and while there was no demurrer by the defendant, nevertheless the evidence for the State was insufficient to warrant a conviction, inasmuch as it. failed to show upon what particular . . farm belonging to the prosecutor and located in the county named the defendant agreed” to work. See also Hurt v. State, 18 Ga. App. 144 (1) (88 S. E. 921).

Judgment reversed.

Broyles, C. J., and LuJce, J., concur.


text:
    15279.
    HANSON v. THE STATE.
    Where there is some slight evidence to support a verdict approved by the trial judge, his discretion in refusing to grant a new trial because of alleged insufficiency of evidence will not be interfered with by this court.
    Decided April 16, 1924.
    Conviction of manufacture of liquor; from Wilkes superior court — Judge Shurley. December 8, 1923.

      Norman & Norman, for plaintiff in error.

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

“In this case the motion for a new (rial contained only the usual general grounds. There was some slight evidence authorizing the verdict; and, the verdict having been approved by the trial judge, under the repeated and uniform rulings of this court and of the Supreme Court, a reviewing court is powerless to interfere. When the verdict is apparently decidedly against the weight of the evidence, the trial judge has a wide discretion as to granting or refusing a new trial; but when there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority°to control the judgment of the trial court.” Toole v. Jones, 19 Ga. App. 24 (90 S. E. 732). See also Tate v. State, 30 Ga. App. 35 (116 S. E. 541); Usry v. State, 30 Ga. App. 180 (117 S. E. 108); King v. State, 30 Ga. App. 181 (117 S. E. 119); Williams v. State, 24 Ga. App. 53 (2) (99 S. E. 711).

Judgment affirmed.

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


author: Bloodwoeth, J.

text:
    15286.
    WOOD v. THE STATE.
    1. Refusal of a continuance was not an abuse of discretion.
    2. Where, on the trial of one charged with possessing whisky, a witness, ■ who had testified that the defendant, in whose residence the whisky was found, admitted that it belonged to himself, was asked on eross-examination if tlie defendant did not at tlie same time say that the whisky “was for his grandfather,” the court did not err in sustaining an objection to tlie question, on the ground that it was immaterial and irrelevant.
    3. Error in the charge of the court does not require a new trial, where the verdict was demanded by the evidence.
    Decided April 16, 1924.
    Indictment for possession of liquor; from Crisp superior court —Judge Crum. December 8, 1923.

      C. L. Harris, for plaintiff in error.

      J. B. Wall, solicitor-general, contra.
   Bloodwoeth, J.

Error is alleged because tbe court refused to continue this case on account of the absence of a witness. Under the qualifying note of the trial judge to this ground of the motion for a new trial, this court cannot say that the judge abused his discretion in refusing to continue the case. Collins v. State, 19 Ga. App. 751 (92 S. E. 229). Moreover, had all the facts to which it is claimed the absent witness would have sworn been before the jury, the other evidence would still have demanded the conviction of the defendant. ,>

The defendant was being tried on a charge of possessing whisky. A witness for the State testiñed that he found whisky in 'the defendant’s residence, and that he heard the defendant state, freely and voluntarily, that the whisky found there belonged to him. This witness, on- cross-examination by counsel for the defendant, was asked: “He told you at the same time that the whisky that you found there was for his grandfather, old man- Cain, did he not?” The solicitor-general objected to the question as immaterial and irrelevant, and the court sustained the objection. This ruling was not error.

Granting, as claimed by the plaintiff in error, that the charge given to the jury was erroneous for the reason that it was “argumentative and unduly stressed the contentions of the prosecution,” and erroneous because the judge told the trial jury that the grand jury, by the return of the indictment against the defendant, “have said that this defendant is prima facie guilty of a violation of a law that was made for the good order, peace, and dignity of the State of Georgia and all its citizenship,” yet these errors will not require the grant of a new trial, for the evidence demands a verdict of guilty, and “where the evidence demands a verdict an error in the charge will not require the grant of a new trial.” Belton v. State, 21 Ga. App. 794 (5) (95 S. E. 300), and cases cited; Cason v. State, 16 Ga. App. 820 (4) (86 S. E. 644); Thomas v. State, 27 Ga. App. 41 (4) (107 S. E. 418); Toler v. State, 107 Ga. 682 (33 S. E. 629). From the record in this case “it appears beyond donbt that a free, voluntary, and unequivocal confession of guilt was made; that the accused introduced no evidence in his behalf at the trial; that in his statement to the jury he did not deny the making of the confession, and that the statement itself was practically an admission of his guilt.” Luby v. State, 102 Ga. 633 (29 S. E. 494). In Hagar v. State, 71 Ga. 167, Chief Justice Jackson said: “The evidence is overwhelming that the defendant is guilty, and where such is the case, even errors in the admission or rejection of testimony, or in the charge of the court, will not operate so as to require a new trial.” See cases cited. See also Wood v. State, 119 Ga. 426 (46 S. E. 658).

Judgment affirmed.

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