Volume 30 — Georgia Appellate Reports

<p>1. The corpus delicti was sufficiently proved.</p> <p>2. Prejudicial remarks of a juror made in the hearing of the jury, and the approval of such remarks by the trial judge, where no motion for a mistrial was made, is not cause for a new trial.</p> <p>3. There is no merit in the assignment of error attacking the charge of the court.'</p> <p>4. The verdict was amply authorized by the evidence, and for no reason assigned was it error to overrule the motion for a new trial.</p>

<p>Accusation of possession of intoxicating'liquor; from city court of Metter — Judge Lanier.' September 20, T922.</p>

<p>Attachment; from city court of Cartersville — Judge Townsend. July 22, 1922.</p>

<p>Accusation of malicious mischief; from city court of Alma — Judge Henson. September 30, 1922.</p> <p>Harley Henderson was charged with having maliciously blown up and destroj'ed, by the use of dynamite or some other explosive, a sawmill engine and boiler of J. F. Lovell. The evidence mainly relied on as tending to show his guilt related to tracks and his riding in a buggy some distance from the sawmill in the night of the explosion and the next morning, and to remarks made by him. From the evidence it appeared that Lovell’s sawmill was blown up about twelve o’clock at night (or, according to other testimony, about ten o’clock) with some kind of explosive. Fuses of the kind used in exploding dynamite and blasting powder were found near the boiler the next morning. A set of human tracks led away from the boiler and down a path for a distance of about 200 or 300 yards to a settlement road, and then through woods about a half or three quarters of a mile from the sawmill site to where a mule and a buggy had been tied. It was testified that the witnesses could not follow the human tracks farther, but they followed the tracks of the mule and buggy to Coffee, which was about six miles from the sawmill site and about ten miles from the defendant’s home. There was evidence as to peculiarities in the tracks and as to similarity of the tracks to those of the defendant and his mule, but there was conflict in the testimony on this subject. It was testified that about eight or nine o’clock in the night of the explosion the defendant and Enoch Waters were seen in a buggy about three miles from Lovell’s sawmill, driving a mule, and that about four o’clock the next morning they were seen going to the defendant’s home in a buggy. A witness testified: “ A few clays before it was reported that .T. F. Lovell’s sawmill in Bacon county was blown uji I carried the defendant in my automobile from Blackshear to his home. . . He had a small package and laid it on the seat and said that we wanted to be careful, that we might get blowed up, that it was dynamite. I think I said I did not like to be hauling that stuff, that we might get blowed up. Then he said, ‘No/ it was not dynamite, it was whisky. . . T did not see what was in the package and did not know what was in it.” Others testified that a short time before the explosion the defendant said that “Mr. Lovell could not saw that timber on that land with that machinery.”</p> <p>The defendant, in his statement at the trial, said that he had nothing to do with the explosion, and was at home the entire night in question; that he had never seen Lovell, but had sent him word not to cut the timber unless he came and bought it and paid for it; that he (the defendant) consulted attorneys about bringing suit against Lovell for damages, but had no intention of doing him damage. Others testified that on the night in question the defendant was at home all night; that the wife of Enoch Waters, who lived there, was sick that night, and they were sitting up with her, and that in the morning, just before day, Waters and the defendant’s brother left there together to get some medicine for her. It was testified that before and after the time of the explosion the defendant’s buggy had a piece of wire wrapped around the right-hand rear wheel, over the tire, and that there was no impression of such a wire in the buggy tracks described by the witnesses for the State. It was also testified that about the time of the finding of the tracks one Williams was seen coming to the sawmill, and that he had tracks of the kind described by the witnesses for the State.</p>

<p>Action on insurance policy; from city court of Atlanta — Judge Reid. October 4, 1922.</p> <p>cited: 123 Qa. 404; 132 Qa. 687 (1, 2); 133 Ga. 793 (1); 134 Ga. 500-6; 136 Ga. 181-2; 138 Ga. 779; 150 Ga. 163 (1); 11 Ga. App. 545; 12 Ga. App. 53 (1); 23 Ga. App. 642-3. Cases cited below distinguished.</p> <p>cited: 116 Ga. 122; 108 Ga. 391; 148 Ga. 843; 151 Ga. 185; 51 Ga. 76; 54 Ga. 290; 106 Ga. 461 (2); 26 Ga. App. 350; 183 Ga. 308; 183 IJ. S. 308-364.</p>

<p>Accusation of carrying concealed weapon; from city court of Blacksliear — Judge Mitchell. October 12, 1922.</p>

<p>Accusation of misdemeanor;’from city court of Blackshear — Judge Mitchell. October 2, 1922.</p> <p>The accusation charged Fulford with having, controlling, and possessing intoxicating liquor. From the evidence it appears that he, with McKinley Tyre, went from his own garage in the City of Blackshear at night in Mrs. Cox’s car, drove it into the country, and returned in it to the garage about 12:30 o’clock the same night, at which time they were seen by Tuten, deputy sheriff, who testified that Tyre was then driving the car, that they got out of the car and Fulford opened the door of the garage, and Tyre took a gallon jug of whisky out of the car and put it down under a tree, and then put it between the garage and a certain store; that he “ did not see Fulford touch the whisky ;” that when he arrested them Tyre said to Fulford, “ Tell him the truth about the matter,” and Fulford said nothing; and that while Tyre was in jail that night he voluntarily and without being offered an inducement told the witness that the whisky was FulfórcFs. The defendant, in his statement at the trial, said he was there that night, but the whisky was not his and he had nothing to do with it, and that this was 'all he knew about it. Tyre testified, that he himself bought and paid for the whisky, that Fulford had nothing to do with it, and that although he told “them” that it was Fulf or d’s. whisky, he did so because he did not want this thing to get out on himself, and did not want to go to jail or to lose his job.</p>

<p>Action for damages; from Muscogee superior court — Judge Munro. October 17, 1922.</p>

<p>Accusation of larceny of chickens: from city court of Newnan — Judge Post. November 10, 1922.</p>

<p>Conviction of shooting at another; from Heard superior court — Judge Roop. October 26, 1922.</p>

<p>Action for damages; from DeKalb superior court — Judge Hutcheson. September 30, 1922.</p>

<p>Conviction of assault and battery;, from Fulton superior court — Judge Hardeman. November 27, 1922.</p>

<p>Indictment for carrying concealed weapon; from Floyd superior court — Judge Wriglit. November 8, 1933.</p>

<p>The evidence authorized the verdict.</p>

<p>1. The indictment states the offense (arson) so plainly that the nature thereof may be easily understood by the jury.</p> <p>2. The allegation as to ownership, that the house attempted to be burned was “ the dwelling house of George Daniels, on a farm in said county, then and there occupied by the said George Daniels and his family,” is sufficient to withstand the demurrer directed against it.</p> <p>3. The foregoing allegation is sufficient to put the defendant on notice as to the house alleged to be the subject of arson.</p> <p>(a) It was not necessary to allege whether the house was “frame or brick.”</p> <p>4. “An indictment which charges that one, being absent at the time when the crime was committed, did ‘ procure, counsel, and command ’ the persons alleged as principals in the crime to commit the same, contains a sufficient charge against one indicted as an accessory before the fact.”</p> <p>5. The indictment was sufficiently definite to inform the defendants of the “ nature of the offense ” charged against them.</p>

<p>Conviction- of manslaughter; from Eulton- superior court — Judge Humphries. November 4, 1922.</p>

<p>Accusation of possession of liquor; from city court of Eloyd county — Judge Nunnally. November 29, 1922.</p>

<p>L The court did not err in allowing evidence to go to the jury as com- . plained of in the motion for a new trial.</p> <p>2: There is no merit in any' of the grounds of the motion for a new trial which allege that the judge erred in his insrtuctions to the jury.</p> <p>3. The evidence was sufficient to authorize the jury to reach the conclusion that the knife used by the defendant was a weapon likely to produce death.</p>

<p>Condemnation under liquor law; from city court of Miller couny — Judge Geer. August 21, 1922.</p>

<p>Accusation of possession of liquor; from City court of La-Grange— Judge Duke Davis. October 11, 1922.</p>

<p>Processioning; from Jefferson superior court — Judge Hardeman. October 6, 1922.</p>

<p>Motion to set aside judgment; from Fulton superior court — Judge Ellis. September 23, 1922.</p>

Complaint; from Newton superior court — Judge Hutcheson. November 4, 1922. Application for certiorari in case 14120 was denied. This is a suit by J. L. Milton against the Bank of Newborn for the alleged breach of a contract of employment. The petition is based upon the following facts: On February 1, 1921, the defendant bank employed the plaintiff as a bookkeeper for a period of twelve months, at a yearly salary of $1,100.

<p>Certiorari; from Eulton superior court — Judge Humphries November 11, 1922.</p>

<p>Certiorari; from Fulton superior court — ; Judge Bell. October 27, 1922.</p>

<p>Complaint; from Polk superior court — Judge Irwin. June 7, 1922.</p>

<p>In an action against a bank by members of a religious association suing as copartners for the amount of a general deposit made in its name with the bank, where the defendant pleaded payment and the evidence showed, without contradiction, that the amount of the deposit was paid out by the bank on checks signed by the pastor of the association, and that the deposit had been made by a committee of members authorized to do so and to deal with the bank in behalf of the association, and who gave direction to the bank as to paying out the money on checks, but there was conflict in the evidence as to who was to sign the checks, it being testified on the part of the plaintiffs that the committee directed the bank to pay only on checks signed by both the pastor and another person named, and there being testimony on the part of the bank that the committee directed it to pay on checks signed by either the pastor or the other person named, it was error for the court to direct a verdict for the plaintiffs.</p>

<p>K. “ The extraordinary motions or cases contemplated by the statute are such as do not ordinarily occur in the transaction of human-affairs; as, when a man has been convicted of murder, and it afterwards appears that the supposed deceased is still alive, or where one is convicted on the testimony of a witness who is subsequently found guilty of perjury in giving that testimony, or where there has been some providential cause, and cases of like character. Goto v. Hillyer, 65 Ga. 57.” Harris v. Roan, 119 Ga. 379 (2) (46 S. E. 433); Norman v. Goode, 121 Ga. 499 (1) (49 S. E. 268).</p> <p>2. Where a motion for a new trial, made at the term of the court at which the verdict complained of was rendered, was overruled, and the decision was affirmed by this court, to authorize a second motion the extraordinary state of facts relied upon in support of the motion must have been unknown both to the movant and his counsel at the time of the iirst motion, or impossible to have been ascertained by the exercise of proper diligence for that purpose. Malone v. Bopkins, 49 Ga. 221 (1).</p> <p>3. “ A stricter rule is applied to extraordinary motions for new^ trial, based on newly discovered evidence, than to ordinary motions r based on that ground. Norman v. Goode, 121 Ga. 449 (49 S. E. 268).” Jackson v. Williams, 149 Ga. 505 (2) (101 S. E 116).</p> <p>4. In addition to the necessity of a showing of proper diligence to discover the facts which were made the basis of the motion, “ due diligence required the movants to make their extraordinary motion for new trial promptly on discovery of the grounds.” Crawley v. State, 151 Go. 818 (1) (108 S. E. 238, 18 A. L. R. 368).</p> <p>5. “ A ground of a motion for new trial based on newly discovered evidence was incomplete where only one of the officers of the losing party, a corporation, made affidavit that he did not know of the relationship of the juror to the opposite party at the time of the trial; it not appearing that this officer was the only officer of the corporation present at the trial of the ease, and it affirmatively appearing that there were other officers of the company. And this is true although the officer who made the affidavit testified that the other officers of the corporation did not know of the disqualification of the juror.” Inter-Southern Life Insurance Go. v. McQuarie, 148 Go. 233 (2) (9.6 S. E. 424). Furthermore, in the particular case the affidavit of the officer of the corporation movant, which was dated April 10, 1922, in merely stating, upon the question of time, that the relationship of the juror to the stockholder of the plaintiff bank was unknown to this movant “ until a short time ago,” did not demand a finding that the relationship. was not known at a time prior to the overruling of the first motion on May 31, 1921, the verdict having been rendered on October 19, 1920.</p> <p>6. “ A general statement that all possible diligence was used may need reduction to particular acts.” Patterson v. Collier, 77 Go. 292 (3) (3 S. E. 119). And see Evans v. Crier, 29 Go. App. 426 (3) (115 S. E. 921).</p> <p>7. In the absence of a showing demanding the conclusion both that the movants exercised proper diligence in discovering the relationship of the juror to the stockholder and that after discovering it they acted with sufficient promptness in instituting their extraordinary motion, the judgment overruling it must be affirmed.</p>

Complaint; from Jackson superior court — Judge Fortson. September 16, 1922. This was a suit by the State Banking Company of Gainesville against A. J. Morgan, as maker, and Gainesville Auto Company and William II.

<p>Complaint; from Murray superior court — Judge Tarver. August 19, 1922.</p>

<p>Complaint; from Laurens superior court- — Judge Kent. September 16, 1932.</p>

<p>Complaint; from Fulton superior court — Judge Bell. October 11, 1922.</p>

<p>Action for damages; from Polk superior court — Judge Irwin November 18, 1922.</p> <p>This was an action for the death of the plaintiff’s husband, alleged to have been caused by the defendant’s negligence in the operation of a train. The petition alleged in substance: that on September 20, 1921, about 5:30 to 6 o’clock in the afternoon, the decedent went to a point on the defendant’s railroad, long established and recognized by it as a flag station, at which its trains were accustomed to stop and receive passengers on signal, and that the decedent, on hearing the train approaching some 400 yards distant, placed himself at the accustomed place upon the track and signalled the train to stop, by waving his handkerchief and his arms, continuing until the employees in charge of the train either saw, or by the exercise of ordinary diligence could have seen, the signals so given; that the railroad-track upon which the train approached was practically straight for more than 400 yards, and there was nothing to prevent the signals from being observed, but that in utter disregard of them the train was run at the high and reckless rate of speed of 50 miles per hour to and by the station, striking and killing the decedent before he had time or opportunity to escape from the track to a place of safety; that the decedent was in a public road, crossed by the defendant’s track, at the time the train approached, where both the public road and the track are situated on high and narrow fills with deep ditches on the sides. It was further alleged that it was an established custom, recognized by the defendant, for persons to stand upon the track while flagging a train, in order for their signals to be heeded, ■and to continue waving until the operatives gave notice by ringing the bell or blowing the whistle that the signal was recognized; that the decedent intended to become a passenger upon the train that killed him, and was able to pay and expected to pay his fare, no tickets being sold at the station; and he was thus at the station :at the time under the express invitation of the defendant for that purpose; that, owing to his position immediately in front of the train, it was impossible for the decedent to calculate its rate of speed, and that he could not in the exercise of ordinary care have discovered that the train was approaching at the high rate of •speed, in time to escape from the danger; that it was the duty of the defendant to respond to the decedent’s signal in time for him to leave the track and escape the danger; that the failure of the defendant so to do left the decedent without means of knowing of the high and dangerous rate of speed, and he was suddenly and unexpectedly deprived of all the warning and notice to which he was entitled under the custom adopted and recognized by the defendant for many years; and was unable, by the use of ordinary care and diligence after the discovery of the defendant’s negligence, to escape its consequences, though he attempted to get off and away from the track as soon as its negligence was discovered; that while he succeeded in getting off the track and on to the narrow fill, the high rate of speed caused a draft or suction which pulled him to and against the train, with the result that he was killed; that the decedent was retying on the defendant to have its train approach in the usual and customary manner, and its failure so to do created an emergency which required that the decedent act quickly and unexpectedly; and that under the existing circumstances he was exercising all ordinary care and diligence to avoid the consequences of the defendant’s negligence. The defendant was alleged to have been negligent in running the train at a reckless and dangerous speed, in failing to keep a lookout for persons at the station signalling and desiring to board the trains, in failing to check the speed on approaching the station, in failing to ring the bell or blow the whistle on approaching the public road crossing where the decedent was situated, and where at its station persons were to be anticipated, in not observing and answering the decedent’s signal, in not observing the blow-post law approved August 19, 1918, in failing to anticipate the decedent’s presence at the time and place in question, and in making no effort to stop the train. It was alleged that the defendant’s negligence was the proximate cause of the decedent’s death.</p> <p>The court sustained a general demurrer, and the plaintiff excepted.</p>

<p>Complaint; from city court of Reidsville — Judge Cowart. November 6, 1932.</p>

<p>Complaint; from Marion superior court — Judge Munro. October 24, 1922.</p>

<p>Motion to set aside judgment; from Walker superior court — Judge Wright. April 28, 1923.</p> <p>Application for certiorari was denied by the Supreme Court.</p>

<p>Attachment; from Thomas superior court — Judge W. E. Thomas. October 20, 1922^</p> <p>Application for certiorari was made to the Supreme Court.</p> <p>The plaintiff sues for the breach of an alleged contract, and in his petition as amended alleges: “On November 28th, 1916, your’ petitioner and said American Manufacturing Co. entered into a contract whereby said American Manufacturing Co. undertook to make, manufacture and deliver to your petitioner, or to such customers of your petitioner as he might direct, f. o. b. Chattanooga, Tenn., 100,000 weeding hoes, at and for the price of $2.50 per dozen, and your petitioner agreed to pay for the same at and for the price of $2.50 per dozen. Said company was to bill said hoes to said customers of petitioner at such price per dozen as your petitioner named. Said company further agreed to make, manufacture, and deliver said 100,000 hoes between January 1, 1917, and April 1, 1918. . . On June 8, 1916, your petitioner gave to the defendant a written order for the manufacture of 100,000 Barwick hoes, to be made of the sizes and the material to be delivered at the times and in the quantitiés and on the terms specified in said order, a copy of which is héreto attached, marked Exhibit ‘ A/ and made a part of this amendment. On or about September 1, 1916, said American Manufacturing Co. accepted said order and undertook and agreed to manufacture and deliver said hoes upon the terms specified in said order. By mutual agreement between plaintiff and defendant said contract was modified and changed, and plaintiff and this defendant entered into the contract of November 28, 1916, set out in paragraph 1 of the petition in said ease. By this contract the defendant undertook and agreed to manufacture for your petitioner 100,000 Barwick hoes, at and for the price of $2.50 per dozen, instead of the price of $2.25 per dozen, made in the original contract of June 8, 1916. This defendant [plaintiff?] was to sell said hoes, taking orders therefor and sending the same to the defendant, who was to fill the same if said orders were given by parties of reasonable financial standing. All orders were to be deemed satisfactory when the givers had sufficient rating in Dun and Bradstreet mercantile agencies, or, in the absence of such printed rating, where special reports were obtained and the givers of such orders were found to be responsible.” Attached to the petition is the following exhibit :</p> <p>“Macon, Ga., June 8, 1916. American Manufacturing Co., Chattanooga, Tenn. Dear Sirs: Please book the following order for 100,000 Barwick eye hoes to be shipped from now until March 1, 1917, about one half by January 1st, and the remaining one half during January and February, 1917, at $2.25 per dozen f. o. b. cars, Chattanooga, Tenn.</p> <p>5.000 #1, 6" x 7 %" 15 to 16 gauge steel,</p> <p>45.000 #2 6" 8 i/2</p> <p>15.000 3 5 9 ' "</p> <p>15.000 4 5 10</p> <p>15.000 5 5 12</p> <p>5.000 garden, 1 x 6, 15 gauge only.</p> <p>“All to be made of 60 to 65 carbon open hearth steel and the best grade of malleable castings, and rivets as per pattern to be furnished. The blades to be shaped like samples or patterns, to be furnished, ground with long uniform bevel, oil tempered to a hardness suitable for the use, like sample to be furnished, and polished 2/5 of lower portion, and the polished portion dipped in suitable chemical to protect from rust, and the unpolished portion and eye dipped in suitable colored paint or lacquer, and labeled like sample to .be furnished and wrapped in ordinary wrapping paper. All hoes to be shipped on orders furnished by me, and approved and accepted by you. You to attend to all shipping and collect all accounts, and remit me the net amounts above $2.25 per dozen, f. o. b. cars Chattanooga, Tenn. It is agreed that on such orders as you do not collect for, you shall not owe me any profit or overage.”</p> <p>The plaintiff further alleges in the petition that “ petitioner, on January 14th, 1918, procured an order from the Barwick Hoe Company for all of the said 100,000 hoes which the defendant had not shipped, and your petitioner shows that the said Barwick Hoe Company was financially responsible for the fulfilment of said orders, but the defendant declined to fill said order and to ship said lioes.” The petitioner prays damages amounting to the difference between the contract price and the alleged market value at the time for performance under the alleged contract. The trial court sustained the defendant’s general demurrer to the petition.</p>