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6
THE MACON TELEGRAPH: MONDAY MORNING, JUNE I, 1903
Supreme Court ot Georgia {
112 Cohen Hste. MuM-r. )'<'•!
Judue Harrow Cfcn'li
candlcr, J -Kol onl>
Ihe erstemsnt of the t
manned a finding that, with' 'it a».\ prov*
o'AtKm of which the law take* c« . t Us
ance at calculated to excite an numptfol*
UM* psieion. he wantonly killed the per-
i' r for the m irderof whom ho w*h tried.
The requests to charge which »cm pre
sent'd In hie behalf, but which the court
■( lined to submit to the Jury, were ,in
ii-«d mode in th^ Indictment,
nrd va. Bute, 77 Ua. 7C4; Col
ce, but I Btafo, 88 Ca. 847; Penal Code, ,
where a witnefj who haa bee
under the rule remains In the
room, he la not thereby render**
■ '' H'- might t>- - ... j «• t \
ta« hm< nt for contempt; but to ex
him altogether might deprive
<Wlined to submit to the jury, were ,in to of „ nK . . au^ationa or tne pennon, in in*
for at th- fain* were leg d and pertinent, . , y,y w|,l h n fact not net forth such statement,
fully covered by the general charge given. 1 flight be . -tabllihed. May va. <!-nUy specific to require a fuller
wu h 13 i.ot < s< n to any of the crttlcUnu 1 «tate, itO Qa. 800. to the petition.
Judgment affirmed. (No further opln-j;
H Ji linker end If. P. Howard, for
I r»l«lntlft In error; J. K. Pottle, eoUcitor
general. contra.
-L Exceptions to the answer
j to a writ of certiorari mu*t specify the
deffcte therein,
J 2. Where the petition for certiorari In
I a • rlrr.inal care get* out a atatement
I alleged to have been mede by the accused
j upon his trial In the lower court, nnd no
statement of the accused la contained in
I the answer, an exception cast the *atl-
j awtr does not reply specifically to the
tl-gatlon* of the petition. In that It does
set forth such statement, la suffl-
response
Judgment affirmed, (jfo further ©pin*
Jon >
brief for plaintiff In error; John C Hart,
423 Calvin vs. state. Before Judge Bar
row. Chatham superior cotirt. •
Cobb. J.~Io tha trial of a murder case,
where the state rellea In part upon a con
fession which Is proved by the testimony
of one witness only. H l* error to instruct
the Jury: “When a confession Is mads
and atated to th# Jury by a creditable
witr.'is, It la of the highest order of tes
timony. There ctn be but few higher
> .urcea of evidence than a confession vol
untarily and freely made.”
Judgment reversed.
William Pense, Francis p. Bataa, and
l). If. Clark, for plaintiff In error; Jno.
C. Ifart, attorney-general, and William
\v. Osborne, solicitor-general, contra.
424. nice vs. Stale. Barreny from the
house. Before. Judge Roberts. * Irwin
superior court.
Lomax. J.'—l. Where personal prop
erly Is taken and retained by A person
Incapable of commuting a crime, the
custody l» that of the owner; and ooe
inking it from such irresponsible agent,
with Intent to convert the same, would
h* guilty of larceny as in the cage of
finding ]r*Kt property.
2. If one iihouM procure an Infant to
enter a hong* and take persona] prop
erty thrrtfront, ho would be guilty of
larceny from the houso, or burglary, na
th** inse might be.
Judgment affirmed,
McDonald, Qulmey A Ornnthnm, for
plaintiff in error; J. F. DeLncy, sollcl-
tor-g* nernl. utid L. Kennedy, contra*
425 Walke
Sta
Before Judge
F.vnns. l.nur.-ns super)or coiirt.
Lamar, J. I Having charged us to
the weight tbit might be given to the
prisoner's statement. It wgs not necee-
eary. in defining a reasonable doubt, for
the Judge further to any thnt It might
“rise from the defendant's statement.
Ivmii Code, sec. 1010, #87; Vaughn vs.
Htate, m Ga., 738; I.urcwell vs. State,
»5 (Sn., 6<#.
2 Where there was no evidence that
a w ltnaas for the state wgs on accom-
pnee. the court was not bound to charge
J'enul Code, Her. MI. as to'the ncce.i-
VV "! "'" ,i D""'«h th*.
defendant contended the witness was
an accomplice. Robinson vs. Htate, 84
3. In the
do, fhi
77 i
HI Ga . 212.
** nce of a special request
r °urt in not bound, to
r’nde. Her. 1005, na to the
iven gonfraslons. Malone
768; Seller* va. Htate,
not be
defectlv
new
" f th. W |t n ,„„„. hnrt
nimtntm.ll; nn.l „■ ,j| , h ,
nr a rontlnuanca wna faulty
I'-nnl Cod., R»r. 083,
Th" V. i.ll, . ,| |,j. , h .
in,in nritl nn m«r of tnw na com.
inltr*'<| The refusal to
trial la
> Affirmed. (No further opinion.)
John H cooper, E. s Baldwin and
\ l n K " r *r f,n ; for P*«lntlff In* error;
Joaeph L I ottle, sollcltor-Kcnci.il. con-
428 Rivers ’
Barrow. (
I.amur. J i Where n married wo-
mnn Is Jointly Indicted with another,
and there la a Joint trial, the husband
»e incompetent as a witness for or
against her. Where there has been a
severance, and the offense doe< not re-
joint act of th# ptraons in-
The preliminary proof wna suffi
cient to admit the eonfef.rloo. The ver
dict was sustained by tha evidence.
Judgment affirmed.
Lewis R. Herrington and Clawson A
Fowler, for plaintiff In error: William
Brunson, solicitor-general, contra.
42#. Maddox vs. state. Selling liquor.
Before Judge Adams. City court of
Dublin. .
Cobb, J.—An accusation charging that
the Accused sold ‘'alcoholic, spirituous,
malt and Intoxicating liquors, and other
drinks to prosecutor unknown, which
If drunk to exceaa will produce Intoxi
cation," charges with sufficient certain
ty n violation of the provisions of the
Political Code, section 1648, the tale of
liquors enumerated In that section be
ing made penal by the Penal Code, sec
tion 451, in counties where the sale is
prohibited under the operation of thi
general local option liquor law, of
which Political Code, section 1548. Is n
part. Buch an accusation |s not defee.
live because It falls to specify the par
ticular kind of liquor sold; nor because
It charges the sale of Intoxicating and
other liquors In the conjunctive; nor
because of the addition of the words
"other drinks to prosecutor unknown,"
etc.
Judgment c/flrmed.
John R. Cooper, 8. II. Baker and I!.
P. Howard, for plaintiff In error; O. If.
Williams, solicitor, contra.
420. Taylor va. state. Certiorari. Be
fore Judge Roberts. Irwin superior
court.
Hlmmona. C. J.—l. Where one con
victed of crime In o county court ap
plies to the superior court for the writ
of certiorari, his petition should be ver
ified by an affidavit as to the truth
of the averments of the petition. An
nffldnvlt which does not so verify the
averments of the petition is Insufficient,
although It may comp!/ fully with the
Penal Code, section 765.
t. Where the Judge of the superlo.-
court sanctions a petition for cerllorarl
which Is not properly verified, and In
his answer to the writ the Judge of the
county court fully supports and cor
roborates the averments of the petition,
It Is too late to dismiss Che certlornyl
on the ground thnt the averments of
the petition are not sufficiently verified.
Judgment reversed.
..McDonald, Qulmey & Ornntham. for
plaintiff In error; J. F. DeLncy, sollcl-
tor-general, and L Kennedy, eontr*.
411. Beckett v. Mayor and Aldermen ot
th* City of Savannah. C*. rtlomrl. Be
fore Judge Harrow. Chatham superior
court.
Simmons. C, J.—1. While an attorney
at law who engages In the bu«ln*M of
lending money la nubject to n lawful
municipal tax Imposed upon all money-
*• "■!* ' - nm ", Uinn •• \\Ji" t ■ '
attorney* at law who lend money, with
out tfcrlng other money-lend*-*. Is vtr»
Dtlva of thnt provision of the e*>nttHu-
tl (, n whlrh requires that "*r| taxation
shall be uniform upon tha same clara of
413 Watson at at. vs. Btata. Larceny.
He far* Judit Kvons. Laurens superlw
court.
Cobb. J.—1.4 new trial will be granted
In a criminal case on the gtmind that th#
verdict l*| contrary to the evidence, when
the evidence la < Irrumttantlftl ‘and does
not exclude every renaonnble hypothesis
am that af Um guilt of the accused.
I. Where the prosecuting officer ad
mits th* truth of facts to which It Is
claimed absent wltn**a«s would teatlfy.
It la not error to overrule a motion for
a continuance baaed on the absence of
*d. he Is not Incompetent to tea-
separata trui of tha other
itant.
nrdIn i
being
such wltn
red na t<>.Dave Watson,
Jllrtjrm. M* iwTwi am tuit/mr n m
nn* affirmed as to Dement Wntam.
H P. Howard and J, A. Thomas, for
plaintiffs in error; J. E. Pottle, solicitor
general, contra.
lh ' knawlolK* or Int.nt
with whlth an nrt I. <!nni< ron.tttutn
ml of n ortmln.l off.n... u ..
ly lmp»»«u,i. t„ prov. th. m.n-
d.f.nd.nr, th. pro..-
t mnlr.,1 to .how Hi.
ihllliy Mini opportunity to know.
S. On. ,’nnnot l.frntn from follonrln,
ip a rln. for f.nr of itl.rov.rlnr th.
rnth nn.l th.n him,rtf h.hln’l
uch Intentional Igmy.ancc.
4. A special presentment against one
nr keeping n r.imlrg hotiaa la not evl-l
••nee of hia guilt but is • public rhargf one nccusad of unlawfully sailing intox-
o that effect cnlculnted to put one on tenting liquors, the use by the trial
Candlar, J.—l. On tha trial of a crim
inal case It Is not error prejudicial to th*
accused for tha court to chart* the Jury
that In reconciling conflicts In the evi
dence they may take into constderatDn
evidence as to th* good character« f th*
accused.
2. A beveraga Is not nacesaarlly nn
Intoxicant. A.-mnllnily, on th. trial of I |Trit'of"i.’n«t«i”Mi4 U K.^r.'Von-
The evidence demanded a finding In
favor of tha traverse to the answer.
Judgment reversed.
W, C. Bnodgrass and Roscoa Luke, for
plaintiff In error.
437. Robinson vs. State. Assault with
Intent to rape. Before 'Judge Rusaell-
Gwinnett superior court.
Flah, J.—An indictment which charges
the accused with the offense of assault
with intent to rape." for that he, on a
named date. In a designated county,
“then and there unlawfully and with
force and arms, in and upon" s named
female, "violently, feloniously, and fore*
ibly did make an assault *u«i Intent upon
h#r. the said female, "then and there
forcibly and against her will to felon
iously ravish and carnally know." la not
demurrable upon the ground that It "does
not allege any offense under the laws of
Georgia." or "because It does not allege
any overt act that the defendant did. go
ing to show that he Intended to commit
the crime of rape."
Judgment affirmed. (No further opin
ion)
John B. Cooper and Oacar Brown, for
plaintiff In error; C. H. Brand, solicitor
general contra.
4W. Jinks vs. state. Before Judge Rus-
aell. Gwinnett superior court.
FI*H, J.—1. Newly discovered evidence
which Is merely cumulative of that of
tha existence of which the party mak
ing a motion for a new trial knew when
the case was tried, and which he ap- N
P'irently, py the exercise qf ordinary
diligence, might have procured, but did
not Introducp. is not good causa for a
Dr*w trial, even in an ordinary motion
therefor, and certainly can afford no
ground upon which to base an extra
ordinary motion.
2. In n, motion for a new trial a
ground that la not verified by th* trial
Judge cannot be considered.
Judgment offlrmed.
Brown A Cooper and Hutchins A
Hutchins, for plaintiff In error; C. H.
Brand, aollctor-genersl, contra.
429. Lamb va. state. Before Judge
Evans. . I^iurcns superior court.
Candler, J.—l. The Instructions of the
trial court as to confessions and as to
dying declarations were warranted by
th* evidence and slated correct princi
ples of law. ,
2. Tha charger on the subject of rea
sonable doubt contained no error suffi
cient to require the grant of a new
trial,
8. The evidence did not require a
charge on the law of voluntary man
slaughter, and no request for such n
charge seems to have been made.
4. The court below committed no error
In overruling the motion for a new trial
on the general grounds
Judgment offlrmed. (No further
opinion.)
John H. Cooper, James A. Thomas
and Henry F. Howard, for plaintiff Ir
error; John C. Hart, nttomey-general,
and Joseph E. Bottle, solicitor-general,
contra.
440. Hhfppard vs. Walker et nl., com
missioners. Certiorari. Before Judge
Mitchell. Ilerrlen superior court.
Flah. J.—Written notice of the sanc
tion of the petition for certiorari and
of th* time and place of hearing must
be given to the opposite party In Inter
est. Nolle* tb the members of th*
court thnt rendered lh* Judgment com
plained of will not suffice.
Judgment affirmed.
Hendricks A Harrison, for plaintiff In
error; Wm. D. Buie, contra.
441. Rice vs. state. Before Judge Rob
erts. Irwin tuperlor court.
Candler, J.—l. It is not made to np-
pear that the trial Judge erred In hla
charge to tha Jury upon their request
for additional Instructions.
2. The portion of the original charge,
of which complaint Is mat'e la correct
In the abstract; and as no specific ob
jection to It 1* made In th# motion. It
MW not fumhh a ground for a new
ttlil.
. 3. The verdict wa* not contrary to
law or th# evidence; and the court did
not err in overruling th# motion for a
new tr'al.
Judgment affirmed. (No further opin
ion.)
McDonald. Quinety A Grantham, for
plaintiff In error; John F. DeLacy,
Inquiry; and such presentment is ad-
mieslble with a view of establishing
th/* reputation of th* person to whom
the house Is rented.
Judgment affirmed. a
Lawton A Cunningham* for plaintiff
In orror; William W. Osborne, solici
tor-general. contra.
4?: Robinson vs. state. Before Judge
Roberts. PuUskl superior court.
Simmons, C. J —ruder no view of th*
evidence or of Die statement of the ac-
Judge, in hia charge to the Jury, of the 0»burn ve. mayor and council of
Carrol)ton.
. Camllor. J.—l. On the trial of one In-
vho was charged with th# i of-1 diriment for criminal trespass, under
....... of assault with intent to imir- the Renal Code, Pec. 219, Bar. l. where
h r , old h.' rroperty have been found tha sole drfense of the accused Is that
kuIId of tb* minor offense of assault he has tlth* to the land, and const-
1 nd Imm,m \ | quently could not be guilty of trespass
ju .lament reversed. ■ upon It, and muniments of title ara |n-
+' H. Martin, for plaintiff In amor; l iroduced in evidence to suit tin this d*-
J K Do Lacy, soli t r-gencral. contra, fens*. It Is error for the court to give
.... , "~V . to 'he Jury a charge which In efTe-t !n-
<.« m Whortrr VS. State. Burglary, strut ts them to disregard all evidence
l’/*fore Judge F* Iton. Bibb superior J of title Introduced by lh* accused. An>
»° Urt ‘ *, , . . evidence of title In the accused ha* a
L unar, J.—l. The fact of a former I strong probative effect to show the
word “beverage," to describe certain
drinks that, the accused was guilty of
selling an Intovlrnnt.
Judgment affirmed.
John H. t*ooper, 8. B. Baker and JL
B. Howard, for plaintiff In errer; G. I ueut, vinous or mail liquors, the hav-
II. Williams, solicitor, contra. lug of any plsce where any of rail.
—'—* I liquors gre stored ©r kept for Illegal »* 1?h * r hlmr* f would have no right, at
431. Hateley ve State. Trespass. Be- oat* or to he distributed or to b* fre- ' th / lln: • ,0 Wll th ‘
f- r* Judge ltodn-tt. City court of quewted and drunk.end the distributing I ,1 ,n
Marietta. Certiorari. Before Judge
Oob*r. Cobb superior court.
Candler, J.—l. A municipal ordinance
prohibiting the having or keeping for
Illegal use of any Intoxicating, rpltlt
nde any attempt to strike her with
hot*.
Judgment affirmed. (No further opln*
J. A. Robson, for plaintiff In error; J.
E. Hyman, solicitor, contra.
445. Chapman va. state. Before Judge
Felton. Bibb superior court.
Cobb. J.—l. Objection that a een-
tence Imp/ r<- d in a criminal case is for
any reason illegal cr Irregular cannot
ground of a motion for a
new trial.
2. The evidence authorised the ver
dict, and no error was committed at
the trial.
Judgment affirmed.
John It Cooper.and W. C. Line, for
plaintiff in *rror: Wm. Brunson, solic
itor general, contra.
16. Hatchett vs. State. Before Judge
Felton/, Bibb* superior court.
Candor. J.—The Indictment was g«od
as agalost any Objection urged against
It, and It was not error to overrule the
demurrer thereto.
Judgment affirmed. (No further
opinion.)
John R. Cooper, for plaintiff In error;
Wlllfam Brunson, solicitor - general,
contra.
447. Taylor vs. City of BanderaviUe.
Cerllrorarl. Refer* Judge Holden.
Washing ton superior court.
8lmm/>n-, c. J.—l. In a proceeding fit
a municipal court to enforce an ordin
ance of th* municipality. Judicial no-
of the existence and
substance of th* ordinance.
2. A municipal ordinance making It
penal for any person “to be found Idling,
loitering or io.-iAng upon the streets"
ot thq municipality Is not void as an
effort to punlxh for the same sets Which
aro embraced within the state laws
against vagrancy.
2. To warrant a conviction under
*u«~h an ordinance it Is not necessary
that the municipality should pro*/* that
the secured Is without property and
means of support.
4. Stntrrnenis of fact made In a*pe-
tltlon for certiorari cannot be consid
ered on th* henrlng when they are not
verified by the answer.
6. Questions not made In the record
wll! not be considered, although argued
here.
Judgment affirmed.
Evans fir Evans, for plnlntlff In errer;
Hardwick A Hyman, by Fulton Col
ville. contra.
448.
vs. Btata. Before Judge
City court of Griffin.
J/—No error or isw was
and the evidence author-
r t.
affirmed. (No further
Knight
Hammond,
flmsnons, <
complained /
tied the ver*
Judgment
opinion).
w. if Bet k. J. j. Flynt and T. E.
Patterson for plaintiff In error; J. D.
Boyd, solicitor,,contra.
v$ *‘J nr0 Jud ** Htm -
mand. City court of Griffin,
glmmons. C. J f -Th* finding of the Jury
•’-* was rrulitv of the of.
•g ws* hilly supported by
pon which the s‘ate relied
on. nnd accordingly this
Jest eke to ray Oat Iher
fho* th- .
fen*# of k
the evld*n-
court com
Jff 41 * 1 contrary to law and ahou'd
r, n "° n have been *s#t aside by
the tfill Court.
Judgment affirmed,
Ion.)
Counsel the ram*
Ing esse,
(No further opln-
In th* next preced-
I "no-, J.-Thf r- was posltlr* lestlntoqy
that th* defendant had no property to
•upport htr. wm sbl* to work, sn l wan
dered and strolled about in Id eness; and
while conflicting, the evidence was euf*
nclem to support a conviction of v«-
I'engt cod*, section
nt affirmed. (No further ©pin-
J ' l
J. A.
411. Hu
VM. Piste
B*fora Judge
i. City court of Dublin
llmmoDs. C. J.—No error of law was
commuted, and tht evidence authorised
th* verdict.
lodgment affirmed. (No further opln-
Hawkins * Weddteftm. for p!alntlff In
esror; o. H. Wlllifm*. MHtcuer, contra.
03 Brown vs. State Before Judge
Hodgee city court of Macon.
Cobb. J.-Th# evidence warranted the
llidgn eot of conviction, gpd t h rr. was
no abuse of discretion »n overruling the
m/.it.-n for a new trial, which waa based
•ol*|y upon th* grounds that the verdict
was contrary to law and th* evidence.
Judgment affirmed (No further opln-
D - for I'1'lnlirr In ,mri
L.„h._ n fOT.nO, COB;
william Brunson, sulldto
tra.
453. Alexander vs. state Manslaughter.
Before Judge Sheffield. Early supe
rior court.
Lnmar, J.—1. Request to charge. In
so far as they were pertinent and
proper, were fully covered by the gen-
era! charge whl^h correctly submitted
the Issues to the Jury..
2. The charge as tn th* right of a son
to defend his father was qs favorable
to th* defendant ns he had a. right to
ark, and was given without any sug
gestlon .S to Whether ru h right might
not be lost If the eon koew that th*»
r/ntcnce must be charged In the In
dictment where a get ond conviction
would affect the grade of the offense*
or require the fenpoettlon of a different
punishment.
2. The maximum penalty might be
imposed on a first conviction of bur-
*i*r> ond the requirement of the Pe
nal ' Mde, ttvlion IM*. that it must be
Imposed In the event of a second con
st. non. doe* not alter the character of
the crigir. ii offm.. or provide for a
different put u«nL N
3. a.>k.it -n and proof that the de
fendant h « l i r • > lously been sentenced
to Itnpr11* -r!•" In the penitentiary
would tend to hi* prejudice, and need
not be M id • b la for the imposi
tion of t».. m nlnmn, |>< dt> provbiM
by the !Vn*‘ - b* - tlon 1042.
4 Aftfi I - -.nd iivl.tloq the
judge W»\ ine|-*« t I'm r • rd «.f the for*
•1*1.
neelf of
a fldes of hie acts alleged to have
constituted a trespass v
2. Paragraph 1 of section tit of the
Pena! t'ode was not designed to tr>N
disputed land tltlea but to punish those
who wilfully, ond without claim of
right, commit acts of trespass on the
lands of others. ,/
Judgment reversed.
James Beall and It. D. Jackson, for
plaintiff In error; 8. Ho'.demev, solici
tor, and Oscar Reese, contra.
485. Watson vs. 8tate. Before Judge
Evans. Laurens super'or court,
randier, J.-The alleged Impeaching
evidence eras not of such character at
to authorise a reversal «f th* Judgment
of the court below for refusing to
charg* the law In regard to Impeach-
mcnt.ln Her ahectuw of whlrh complaint
Is made. The allcg.-d newly dU^verr I
evidence waa merely cumulative in'
I character. Thera was sufficient evidence
! to sustain the conviction of the ac-
I rused. and the court bviifw did not err
I in iwtuelng to giant a new trui.
of aqy of cakl liquors, or the doing of
any Mhcr art that tends to increase- or
prrjucc tlruakrnners. ts not unconsti
tutional as In conntrt wtih the general
«1< mcgtl? win* net o! 1171.
?. Bapworth vs. state, 102 Ga. 86, dis
tinguished,
J- Z. Foster, for plaintiff in error; J.
E. Motley and D. W. Blair, contra.
448. price vs. state. Assault. Before
Judge Taliaferro. City court of San
ders v I lie.
Simmons. C. J.—A finding that th*
accused was guilty of an aaaault was
fully warranted by the evidence, from
which It appeared that he entered the
house of the prosecutrix, notwithstand
ing he had been repeatedly told by her !
not to come there, and began to curs-
and abuse her; that she thervuron j
• picked up a bed-rlat or d *>r-bar and
hit him two I'cka on the leg. when he (
grabbed up a hoe and tried to hit" her i
a severe blow; and that he was pre-
vented from thus indicting upon her a
grl«»vx»u» battery by reason of th* fact
that another man present Interpose 1
and Vaught the lick with a t h .Ir Th"
Jury might have well reached the con-
> !u‘|oa that,. In view of the provision*
cf the Penal code, section 103. the pi«.*- guarantee t
• ltrla was Jnstlffed, because .»f th, tha . r !;• ..
,• <'l»r! - is words and abusive !a>,- sul-pocn-i
f the accusetl. In rtrlk nc h*m 7. It v
-:ii; It not appearing from th«- I m* for th*
testimony - at the weapon with whl.h t > let-rinlr.
sh‘ struck Mm was used by hrr In proof was *>
such a manner as to Inflict upon tv.m i vl.tiwllor
great b ..i.v Injury; and he !n h-x ruling
state.: , i t to th* jury makt g n-» \ .+ who must tx
t*n«e that he acted m self-defense, but “im the «t.-,
relying upon h>a flat detUal tha; he \ in the artlc
hether then
wa- cau$* for r*a*->nab!e fear, or
whether the h- mleldv uar Justlflable.
th* jury might consider th* dlffer^n.o
In s’** ard physK H crrdltion of th*
V'artl/*. It would have been erroneoua
for the Jude- to Inetru. t them that
they should consider such disparity.
4. For the witness to state what wss
his Intention was'not opinion evidence,
but proof of a substantive fact, end ad-
in this cape The error In ex
chiding such testimony was subse
quently cured by showing the witness
to testify to hA intention.
5. There was no as-ignment of errer
what.-ver on th* charge as given, and i • n ... vh
•hl, M,, . OT«nl vOTdlrt «•»«(*. UVStBri
defpnda
tlon,
3. It T
facts, t<
t was conscious of his condl-
as not error, under the proved
charge on th* law of mutual
olqnUry manslaughter. '
supported by the ev-
ombat
4. The verdict
Idp-nce.
Judgment affirmed.
John R. Cooper and Herman Brasch.
for plaintiff In error; William Brunron,
sdUcltar-general, contra.
453. Monahan et al. vs. state. Gaming
house. Before Judge Barrow. Chat
ham superior court.
Fish, J.—The fact that the court,
upon the trial of one indi/*t*d for and
convicted of the offer.se of keeping and
maintaining &. gaining house, charged
the Jury that they would be authorized
to find the accused guilty U they be
lieved, beyond a reasoned* doubt, that
he knowingly permitted persons to
-me together in a room or place oc
cupied by him and play for money or
other thing of value at any game or
device for the hazarding r.’f money or
other thing of value, was not cause for
a new trial, wh*n the evidence! demand
ed a verdict of guilty of the offense
charged.
Judgment affirmed. (No further opin
ion.)
Robert L. Coldlng. for plaintiffs In
error; Wm. W. Osborne, solicitor gen
eral, contra.
16. Smith vs. state Before Judge
Adams. City court of Dublin.
FImmons. C. J.—1. Where In a crimi
nal care there Is no proof of the venue,
a verdict of guilty is without evidence
to support It.
2. The brief of evidence filed with the
motion for a. new trial and proved by
the trial Judge must be treated as cor
rect, and this court h»s no power to
amend it, or to order the clerk of the
court below to send up the original
transcript of the evidence, although It
may have been Identified by (he Judge.
Judgment reversed,
J. B. Hicks and Hawkins A Wed-
dtngton, for plaintiff In error; G. H.
Williams, solicitor, contra,
457. Gill vs. mayor and council of
Brunswick. Certiorari. Before Judge
Barker. Glynn superior court.
Simmons. C. J.-it was io legislative
contemplation that the snayor and al
dermen of the city of Brunswick should
act In a JudHal capacity when exer
cising the power conferred upon them
by. the act of November 23, 1900. to dl«-
mlsa from service all officers and mem
bers of the police force who should be
guilty of conduct which that act de
clares shall constitute cause for remov
al from office. Acta 1900, page 240.
(a) A trial condu t*d In accordance
with a statute of this character is a
quasl-crlmlnal proceeding and the writ
of certiorari lies to review the rulings
and findings of such a corporation
court.
(b) The refusal of the court below
to sanction the petition for certiorari
In the present case could not property
have been based either on the ground
that a writ of certiorari could not le
gally Issue or on the ground that there
waa no merit In any of the complaints
which the plaintiff In certiorari sets
forth In his petition.
Judgment reversed. (No further
opinion).
Ernest Dart, for plaintiff In error; F.
E. Twitty, contra.
45*. LeCroIx va Western and Atlantic
Railroad Company. Care. Before
Judge Gober. Cobb superior court.
Lamar. J —The act approved Novem
ber 12. 1889 (Arts\1880. p. 302). for the
lease of the Western end Atkmltc ralt-
rood, providing that suits might be
brought "In any county through which
the road runs." does not give tne plain
tiff the right to elect in which county
suits may be brought. Actions against
•aid company are governed by thed>ro-
visions of the Civil Code, section 2834;
nnd where the injury occurred In Ful
ton county, a suit therefor could not be
brought in Cobb county.
Judgment affirmed.
E. B. Green and N. A. Morris, for
plaintiff; Bayne A Tye and Clay A
Blair, for defendant.
459. Commissioners of Gordon County
vs. Burns et at. Msndamu*. Before
Judge Fite. Qordon superior court.
Lamar, J.—Where the alternative
road law (provided for by the act ap-
ptored December 24. UM, as argended
by the net approved December 19. 189S)
has been adopted by popular vote, the
recommendation of th* grand Jury ts
not necessary to put the law into ef
fect.
Judgment affirmed.
Starr A Erwin, for plaintiffs In er
ror; R. J. A J. McCamy. contra.
460. Letter et al. vs. Lester. Injunc
tion. Before Judge Lumpkin. Fulton
superior court.
Simmons. C. J.—Both the pleadings
and the evidence bring this case el/Arty
within the jurisdiction of a court uf
equity. The quentiqn* of law raised in
the record do not present any reason
for reversing the Judgment of the lower
court; and that court did not abuse it-
discretion In granting the injunction.
Judgment affirmed. (No further
oplplon).
J. H. Porter, foe p'.iintiff in error;
May-son, lllll A McGill, centra.
ubject to a specific oc-
a domestic busine.-s
5. One wh
cu pa tlon ta:
Ing. for an
within this
empt from such tax ber-aus* h*» also
conducts, for the same principal, other
business which is not subject to state
taxation.
•Judgment affirmed.
Smith, Hammond A Smith, for plaln-
, for defendant.
tiff; Black A Jacks
<©. Mayor and Council
Actl
Dalton v*.
u parlor
Befog
court.
;,'? l v‘ pa ' c °n>°*Mion u
i.Iure or refusal to ex-
Simmons. C. J.- 1 A legislative act
which tmpos.a i *$>*cUle tux cr. '•rr’.Mn
bueineas Oftfupatb n» m 1 whUh does
not be om* optretlv* unt 1 the com
mencement of th* year following its
passage, la not retroa live, or violative
of that section of the federal constitu
tion whleh forb'ds u state's passing
any > x post facto law or \»w Impair
ing the obligation of contracts.
; A tax on tb, prtvt]«(. cf wtl': x
good. I., in i in on tb. *wdi
i j'urch.-i*
itn.l tbrr.. being no error rr<tulr!nx th
kh. t ot a new trUI, the Jujgmen Is
>•
M H» ■ tm'im! »n* Arthur >.
1’ir *» rMittin in error: J. A. t SveT’.tSn*
La Ing - tcltor-g neral. contra. j ... ,k.
Ar. J.—l. The cor.
Boeing that the de
<-i pulsory process
ance of hi* wltne*
■tltutlon. In
>ndant shall
o compel the
es. does not j ©f bu:
this st tte. as the agent
" <h « tn another state.
* n h r rinctpal for th<-
>ls h»*ld In tuch other
. when the gc. is are
principal to him. r*.
th - state and delivers
in the original packages to the
customers from whom he obtains th*.
orders, and upon delivery receives
from them the price of tho go-tj,, j*
engagf-l in Interstate eotrjmcr.r
i When a < *.s. the prep* rty of a res
ident of another state, are ship; d
from that state m the owner's place
In this state, there to 1*
vtng a
• h.irge that It
h-r
tdmlt the dy
tlon thnt thts
* on th* Jury.
E& the evtdeno*
m-*i t was actually made
Of d«Ath, and when the
rnU*ffet| fr-
il and offered fo:
t by h!s agent. 1
them In this str
commerce, but ie
by the state, i
of the Vnlted Staten
nly to the
■■tl* tn
• ( atl
nt <
pr
rlness of
not Inter-
i t to tax-
netltutlon
•cts such
ing
Imi-'Wes
Btata htWattop which
them, b. ause cf their orlg'ln. burdei.
Tsh.ch are not Impos' d upon g.M>ls ihi
prolu/i of the state imposing »uch bur
dens.
462. Fleming et a! vs. Blosser Print
ing Company et aL Interpleader. Be
fore Judge Felton. Bibb superior
court.
Candler. J.—1. If a clear rase for In- 1
terpl*ader was not made, a court of ;
equity had Jurisdiction to prevent a
multiplicity of suits and a consequent
waste of the funds In dispute. The
remedy at Jaw was not so .adequate,
full, or complete as equity could if- j
ford; and therefore there wa* no error
In overruling the demurrer to the pe
tition.
.2 AH the questions of law and fact
In this case were by agreement sub
mitted to the court for determination.
There wak no error In any of the rul
ings on the legal questions Involved,
and the finding on the facts is fully
sustained by the evidence.
Judgment affirmed. (No further opin
ion.)
B. J. Dasher, for plaintiffs in error;
Lane A Parle. Hardeman. Davis, Tur
ner A Jones and A. L. Dasher, contra.
463. Ray vs. Byrd. Trover. Before
Judge Felton. Crawford superior
court, a
Lamar, J.—Property having keen
levied on, the plaintiff brought ball tro
ver against the officer, giving bond
under the Civil Code, section 4606. for
the forthcoming of the property to an
swer the Judgment in the case. The
defendant prevailed In the suit and
elected to take a money vepdict. Hel l,
that the officer had only a qualified
Interest in the property, and where It
was worth ipore than the amount of
the fl. fa., he waa only entitled to re
cover an amount sufficient to satisfy
and discharge the execution under
which the levy had been made. Holmes
vs. Langston, 110 Ga. 864.
Judgment reversed. (No further
opinion.)
R. D. Smith and Matthews A Riley,
for plaintiff; W. J. Wallace, for de
fendant.
464. McDonnell va Central of Georgia
Railway Company. Damages. Before
Judge Felton. Bibb superior court.
Cobb, J.—Applying the rules laid
down In the Civil Code, sections 3611.
2612. In reference to suits against mat
ter* /ither than railroad companies, to
the facts of tho present case, the court
erred In granting a non-suit. The evi
dence authorised a finding that the de
fendant was negligent In reference to
the machinery furnished upon'which
the servant was at work at the time
of his death, and that the defects in
the machinery were of such a character
that the defendant ought to have
known of them and have, given warn
ing to the servant in respect thereto, as
well as finding that the servant did not
know of the defects and had Kot equal
means with the master of discovering
the same and was not required to make
an Inspection or examination to dis
cover the defects, and therefore waa
not lacking In ordinary care In proceed
ing to work upon the machinery with
out making an Inspection or examina
tion.
Judgment reversed.
Ross A Grace, for plaintiff: Lawton
A Cunningham, Hall A Wimberly and
J. E. Hall, for defendant
465. Hill vs. Lundy. . Before Judge Hot-
den. Hancock superior court.
Candler, J.—l. It was not a proper
ground of a motion for a new trial that
the Judge of the superior court, on the
trial ot an appeal from a county couti.
refused, on motion, to dismiss the ap
peal. or to dlsmlaa the petition of on*
of the partita thereto. The error. If any,
ehould be made the subject of a direct
exception. Henry va. Burkbalter. 118
Ga. 1048.
3. The verdict waa supported by the
evidence, and tt waa not erroneous to
override the motion for a new trial.
Judgment affirmed. (No further
opinion.)
Hunt A Merritt, for plaintiff In error;
R. H. Lewis, contra.
466. Scales va. Heirs at Law of Thorn
ton. Probate of nuncupative will. Be
fore Judge Russell. Gwinnett supe
rior court.
Cobb, J.—l. It la essential to the va
lidity of a nuncupative will that the tes
tator should at the time of pronouncing
th* same, communicate tj> some of the
persona present hla intention to make
such a will, and In some way request
them to bear witness that the state
ments about to be made are Intended
as hla wilt
2. Th# evidence In this case deman
ded a finding against the propounder,
and there was no error In refusing to
grant a new trtal.
Judgment affirmed.
N. L. Hutch in*, for plaintiff In er
ror; W. E. Simmons, contra.
467. Dillard vs. Dillard. Before Judge
Russell. Rabun superior oourt.
Lamar. J.—L Where byTnutual Agree
ment a note was given by J. to A. and
the latter accepted the former as a sub
stitute for his original debtor, W. thl*
wa* a novation, and the debt from W.
to A. was abrogated. Ferat vs. Bank.
Ill Ga. 282.
2. The fact that It subsequently ap
peared that the note was for an amount
greater than W.*e‘ Indebtedness to A.
would not defeat a recovery thereon.
3. Wh*re there has been a novation
and substitution as before stated, an
executory agreement by A. to surren
der this note and take another from J,
for the correct amount, with a provls-
] Ion that It was never to be* bme due
j unless \t\completed a contnut to build
j a house for J. was not enforcable, being
without any benefit or consideration
j moving to A. It was therefore error to
i«n i’ v '•
! that A. was not er.t;t!-l to recover on
| th* o-tRlnal note. Civil code, sections
I Judgment reversed.^ (No further
opinion).
W. £. Baris, for plaintiff In error;
j J. R. Grant, contra.
4-< r-ir.ror, Sk .Vi” *’ . •■ Re
fer* Ju!s* Fit*. Gordon superior
] court.
! Lamar, J.—Th*r* was r.o evidence
from the attesting wltn- or other
wise, tending to show that th* deeds
were signal ift--r Judem* -.t. .*r or. »de
for the purpose 1 i.'ln* and de-
frandlng cred.t ..nd th. wrdlrt for
anded by the* ev-
Judsr* Fite.
Cobb. J.-L
not liable for the fail
'•raise Its.charter power t, abate Trui.
•ance maintained by a private IndlvBa,!
upon private property and r.ot for *
a character as to amount to an obstrir
tlon of a public stret or to imperil
gafety of travelers thet*on: and thi* •!
true notwithstanding the nuisance In quaZ
tlon may consist of a sewer which
municipal authorities allowed to be con
structed by a private Individual jn D
ur.de/ the streets of the. city, that portion
ol the sewer under the puotus street! n A »
Mr* lOTlf the cuue i ( any " If. 0 ?
either to the public or to any prlvatZ •
u,dividual. V
2. The petition In the present case con,
strued most strongly against the ple^er
does not set forth a cause of sc Ln
against the municipality tor maintain r,
a nuJrance. It Is at most a compa’nt
that the municipality consented to i‘h«
erection of a nuisance by a private indi
vidual and haa failed and refused to abuts
the same,
Judgment reversed.
It. J. A J. McCamy. for plaintiff u
error; Shumate,* Maddox, contra.
476. Ach * Co. vs. MUam et al. F re.
closure of mortgage. Before J04.,
Fite. Bartow superior court.
Candler. J.—L Where a Homestead mas
ee: azide under the constitution ot
*hd a mortgage on the homestead propi
erty was given in 1SK8. It was permissible
for the defendant to set jp the hotr.«*
stead In defense tq an action to foreebs)
the mortgage.
1 Where the original petition fop such
a homestead showed that the legal this
to the land sought to be set astde wa, in
the wife, who made the ap^lcatlon. cvi. ,
dence wss admissible to show that sub
sequently to the filing of the original pe
tition the wife conveyed Xhe land to h*r
husband and amended her petition »■>
as to show that the title to the lend was
In him and pray that the homestead u»
set aside out of his property.
3. The defendant in an action to forp.
close a mortgage by t|te terms of whi h
the mortgage waivers all rights to borr--
•tead or exemption Is not estopped by
the recitals of the mortgage t> deny th*
right of the mortgagee to sell the land
covered thereby under auch a Judgment
as would deprive her of the use of the
homestead property during her life.
Judgment affirms).
John W. Akin, for plaintiffs. Thomas
W. Milner * Son*, for defendants.
471. O'Neill Manufacturing Co. vs.
Woodley. Trover. 'Before Ju)k«
Reece. City court of Floyd county.
Cobb. J.—l. In an action of trover
the plnlntlff has the option to "dernan)
a verdict for the damages alone, or for
the property alone, and Its hire, if
any." If he elects to take a verdict
for the v damages alone, these damages
may, at his option, consist of the high
est proven value of the property be.
tween the date of the conversion and
tho date of the trial, or the value of
the -property at the date of the conver
sion. with Interest thereon from that
date to the date of the trial, or if thj
property is of a character that hire
may be recovered, the value of the
property at the date of the conversion,
with hire of the same from that dnte
to the date of the trial.
2. In an action of trover brought to
recover two mules and their hire, a
verdict In the following words: "We,
th* Jury, find for the plaintiff 3200 for
value of mules and for hire for 302 days
87H cents each per day," la sufficiently
certain to authorise a Judgment to be
entered for a gross amount made up of
the value of the mules and their hire
at the rate and for the time stated In
the verdict, and when the judgment li
so entered it will bear lnterrst on the
gross amount from Jhe entry of the
Judgment.
8. The evidence authorized the v»r-
dlct and th-re was no error requiring
the granting of a pew trial.
Judgment affirmed. ,
Denny * Harris, for plaintiff in er
ror; S. E. Carpenter and Griffith *
Weatherly, contra.
472. Aiken, administrator. Vs. South
ern Hallway Company. Breach of
contract. Before Judge Irwin. City
court of Folk county.
Cobb, J.—l. While a husband may
make a railway company a contract
for the safe carriage of his wife, the
law will not Imply su h a contract from
the mere purchase of an ordinary tick
et by the husband for the wife, in such
a case the law raises an Implied con
tract for safe carriage in favor of th*
wife only.
1 construing the petition tn the
present case most strongly against the
pleader, It simply alleged that the hus
band had purchased an ordinary ticket
for the wife, and did not set up that
there was any other contract than one
which would result from the purchssa
ot such a ticket.
Judgment affirmed.
Bunn A Trawtck, for plaintiff; Shu
mate A Maddox and Fielder A Ault,
for defendant.
471. City of Newnan va. Davidson.
Damages. Before Judge Freeman.
City court of Newnan.
Lamar, J.—l. A petition alleging thAt
the rUlntjff in walking along a city
sidewalk, fell and waa thrown to th*
ground, her foot going into a hole or
washouLpractlcally concealed by grass,
which had exlated for two weeks or
more, could be amended so as to charge
that the fall and damage resulting
therefrom were by reason of stepping
into th» hole, and, aa amended, wet
forth a cause of action.
3. The suit being fo- damages occa
sional by keeping and maintains the
eldewalfc In a defective condltlon.it was
Irrelevant, but harmless, to charge that
the law requires of cities ordinary care
In constructing and keeping their side
walks in a safe condition.
3. T .kJng the charge * whole, sno
considering the Instructions complained
of In connection with their Immediate
ontext, the Jodge did r.ot express an
opinion as to what had been proved.
Civil code, section 4?'4.
4. Whr:. th. fully »*t* forth
:<• general principle* sp r : cable to the
if.*, if either party desires more tpe-
*■ ’ Instn: ti. ?is. r<■■■,'.!■ -ta therefor
lust be presented.
n. Tho evidence was ronlctlng; the
damages were not excessive; the ver-
d > t r. »t contrary to law; and the
Judgment is
Affirmed. (No further orlnlon).
W if Glass .nd W. c. Wright, for
pi ‘intiff in error; H. A. Hall and W. S.
Hubbard, contra.
the claimant wa
Idence.
Judgment affii
Union Pacific R. R, Co.
Clipnp. Colonists Tickets to
California tind tho North*
west from Febv. 15 to Juno
15. Solhl Yestibaled trains.
Through Service. For par
ticulars. address
J. F. Van Rknssklxr,
General Agent, 13 Peachtree
.■it., Atlanta, <ia,