where evidence is adduced which fully warrants the verdict rendered, not only error, but injury, must he shown.' Taylor v. State, 5 Ga. App. 237, 62 S. E. 1048 (1); Walker v. Riley & Co., 6 Ga. App. 519, 65 S. E. 301 (3). [2] 2. We think the verdict of guilty on each count of the indictment can be construed as a general verdict of guilty, and the reforming of the sentence, so as to impose a single fine and limiting the imprisonment in the county jail of Chatham county to six months, cures the alleged errors in reference to this matter. "Where a verdict of guilty is rendered on a number of counts, a sentence which does not exceed that which may legally be imposed on any one count is supported by the indictment, if any count is good." Peters v. United States, 94 Fed. 128, 36 C. C. A. 105 (7). Judgment affirmed. a part of said indebtedness is represented by the holder." The defendant by amendment withdrew the foregoing agreement, and then by another amendment reinstated it. The plea as BROYLES, P. J., and HARWELL, J., con- amended was demurrer to, the demurrer sus cur. The court did not err in sustaining the plaintiff's demurrer, and in striking the original and amended plea. Error from Superior Court, Floyd County; Moses Wright, Judge. Suit by the Simpson Grocery Company against C. L. Conn. Demurrer to original and amended plea sustained, plea stricken, verdict for plaintiff, and defendant excepts. Affirmed on main bill of exceptions, and cross-bill of exceptions dismissed. tained, and the plea stricken. The plaintiff The de M. B. Eubanks, of Rome, for plaintiff in error. T. W. Lipscomb, Nathan Harris, and Wright Willingham, all of Rome, for defendant in error. BLOODWORTH, J. Nothing in the defendant's answer constitutes a valid defense to this suit. The agreement which is attached as an exhibit to the answer, and the relevant parts of which are hereinbefore set out, undoubtedly grants an extension of time on $1,500 of the indebtedness, by taking notes, one for $500 due in two years, and the other for $1,000 due in three years, but these notes are not the basis of this litigation. The agreement to extend did not fix any definite Simpson Grocery Company brought suit period to which the notes sued on were to be against C. L. Conn on two $500 notes signed extended, but on the contrary the agreement by J. J. Conn and W. F. Conn, and indorsed provided "that failure to pay one of the foreby C. L. Conn, on which there was an alleg-going notes according to their legal tenor and ed balance due, including attorney's fees, of $885.82. The petition alleged that J. J. Conn and W. F. Conn had been adjudicated bankrupts, and could not be joined in the suit. The defendant in his answer admitted the execution of the notes, denied any indebtedness to the plaintiff, and alleged among other things: "That some time before said notes were due the plaintiff entered into a contract and agreement with J. J. Conn and W. F. Conn, the makers of said notes, whereby, for a consideration to the plaintiff, the makers of said notes were granted an extension of time upon said notes, a copy of said contract and agreement being hereto attached and made a part of this answer." Said agreement is as follows: "Georgia, Floyd County. "Whereas, J. J. Conn is indebted to Simpson Grocery Company $2,500 which he desires to secure, Simpson Grocery Company having granted extension of time thereon, and whereas effect, shall mature all at the option of the holder." By the "legal tenor and effect" of the notes sued on they became due October 15, 1913, and March 15, 1914. Where there is an agreement between the holder and the maker of notes to extend the time of payment, unless it be for a definite period, even though for a valuable consideration, the surety will not be discharged from liability. The first headnote in the case of Bunn v. Commercial Bank of Cedartown, 98 Ga. 647, 26 S. E. 63, is as follows: "An agreement by the holder and owner of a promissory note with the maker of the same to extend the time of its payment for an indefinite period, though based upon a valuable consideration, does not discharge a surety on such note from liability. As such an agreement would not prevent the immediate bringing of an action, the making of it really amounts to no more than 'a mere failure by the creditor to sue as soon as the law allows, or negligence to prosecute with vigor his legal remedies, and it therefore stands upon an entirely different footing from an extension for a definite period. In the former case a surety may at any time pay the debt, and proceed to enforce the same against his principal, and he may also proceed against the cosureties, if any, for contribution. In the latter, he cannot do this, and consequently his risk is increased, and he is discharged.' See, also, Woolfolk v. I. C. Plant & Son, 46 Ga. 422 (2). From the foregoing it will appear that the court did not err in sustaining the demurrer and in striking the pleas. Judgment affirmed on main bill of exceptions; cross-bill dismissed. jury, whose peculiar province it is to pass upon the facts, have said by their verdict that this homicide was neither justifiable nor malicious. Then, was it intentional? We are sure that from the evidence every unprejudiced mind must be convinced beyond a reasonable doubt that the defendant intended to kill the deceased. The defendant, immediately after the blow which felled the deceased and resulted in his death and while standing "right at his feet," said, "I told you, God damn you, that I would kill you if you hit my mother." Here is a direct declaration from the defendant showing his intent to kill. In addition the intent may be inferred from the weapon used, an iron steelyard pea that weighed four pounds, and there is evidence to show that such a pea is a weapon likely to produce death. The fifth headnote in Weeks v. State, 79 Ga. 37, 3 S. E. 323, is as follows: "Intention is often more strongly indicated by the main act than by its BROYLES, P. J., and HARWELL, J., con- adjuncts. The killing of a human being with cur. Oct. 31, 1917.) an instrument likely to produce death is a stupendous fact as a guide to intention." In Moon v. State, 68 Ga. 688, the seventh headnote is as follows: "To kill by using a deadly weapon in a manner likely to produce death, (Court of Appeals of Georgia, Division No. 2. will raise a presumption of intention to kill." (Syllabus by the Court.) 1. CRIMINAL LAW 806(1) STRUCTIONS. TRIAL IN See, also, Hanvey v. State, 68 Ga. 613(4). All men are presumed to intend the natural and proximate consequences of their action. When a man kills another by the use of means appropriate to that end. he is presumed to have intended that end. "When death results from the unlawful use of a deadly weapon, the law by presumption imputes to the slayer an intention to kill." Gallery v. State, 92 Ga. 463, 17 S. E. 863. "When one voluntarily shoots at another and the shot kills, the homicide cannot be involuntary." Smith v. State, 73 Ga. 79(3). See, also, Stovall v. State, 106 Ga. 444 (3), 447, 32 S. E. 586; Johnson v. State, 4 Ga. App. 59, 60 S. E. 813. In each of the cases cited in the brief of plaintiff in error on this point, the evidence was not of such a character as to demand the finding that the implement was a weapon likely to produce death, and that TRIAL IN- the blow was struck with intent to kill. and Phrases, First and Second Series, Involun[Ed. Note.-For other definitions, see Words tary Manslaughter.] A correct statement of law embraced in a charge to the jury is not erroneous because the court failed in the same connection to give to the jury other appropriate instructions. Lucas v. State. 110 Ga. 756, 36 S. E. 87; Central of Georgia Railway Co. v. Grady, 113 Ga. 1045 (3), 1046, 39 S. E. 441; Keys v. State, 112 Ga. 392(4), 397, 37 S. E. 762, 81 Am. St. Rep. 63; Rawlins v. State, 124 Ga. 31(16), 50, 52 S. E. 1: Hill v. State, 18 Ga. App. 259, 89 S. E. 351(1). See, also. Nail v. State, 125 Ga. 234, 54 S. E. 145(2); Killian v. State, 19 Ga. App. 750, 92 S. E. 227(2); Barron v. State, 12 Ga. App. 342(2), 77 S. E. 214. 2. CRIMINAL LAW 825(1) STRUCTIONS-REQUEST. If fuller instructions had been desired, they should have been requested as provided by section 1087 of the Penal Code of 1910, and section 6084 of the Civil Code of 1910. 3. CHARGE-PROPRIETY. The charge is not erroneous as contended "because it mixes the law of self-defense up with the law and the right to defend a mother's life." 4. CRIMINAL LAW 922(2) TRIAL IN STRUCTIONS. "The case was not one depending wholly upon circumstantial evidence, and it furnished no ground for a new trial that the court failed to charge the law touching such evidence." Cliett v. State, 132 Ga. 36, 63 S. E. 626. See, also, Hicks v. State, 146 Ga. 221, 91 S. E. 57 (4): Smith v. State, 11 Ga. App. 89, 74 S. E. 711(10); Fuller v. State, 10 Ga. App. 34, 72 S. E. 515(2). - 5. HOMICIDE 145, 309(6) TRIAL INSTRUCTIONS- "INVOLUNTARY MANSLAUGH TER." The court did not err in failing to charge on involuntary manslaughter. Involuntary manslaughter is defined in the Penal Code of 1910, § 67. in part as follows: "Involuntary manslaughter shall consist in the killing of a human being without any intention to do so. * The fourth headnote of the decision in Mixon v. State, 7 Ga. App. 805, 67 S. E. 699, is as follows: "Wherever a homicide is neither justifiable nor malicious, it is manslaughter." The 255 6. CRIMINAL LAW 828-HOMICIDE The defendant was deprived of no defense to which he was entitled under the laws of the state or under the facts of the case. The evidence was sufficient to support the verdict of voluntary manslaughter, and the court did not latch out of the gate and run between Sam and err in refusing a new trial. Error from Superior Court, Dougherty County; W. M. Harrell, Judge. Sam Conley was convicted of manslaughter, and he brings error. Affirmed. The indictment in this case charged murder. The verdict was voluntary manslaughter. The defendant and his mother were croppers on the plantation of the deceased, and he was sent for by the deceased to pick cotton. He and his mother came to the lot where the landlord was. The deceased went out of the lot to where defendant and his mother were, and insisted on the defendant's picking cotton for him. The mother objected to this, and insisted that the defendant should pick his own cotton. Hot words between the mother and the deceased followed. Fannie Glover was in the lot and Fannie White was on the porch of her home, and each only a few yards away. The former testified: "I went to the gate, and I says, 'Sam, you all hush so much jawing and go on,' and Mr. Melvin told me to hush and go back and milk the cows, and I went on back, and I heard Fannie White say, 'Oh, Sam has done killed Cap'n,' and I broke and run back to the gate, and when I got there Sam was right at his feet, and he says, 'I told you, God damn you, that I would kill you if you hit my mother.' Mr. Melvin was lying down at that time, and Sam was and I says, 'Sam, don't hit standing right up, and him then to go and get him no more." Mr. Melvin when she got it. That is all she said about it right then. She did not say any thing about why they both had hold of it. Sam had picked up his mother and gone down the road with her when she told me this. She said that Mr. Melvin and Carrie had hold of the latch. I never asked her then and there where Carrie got the latch from." There was evidence that the steelyard pea was of iron and weighed about four pounds, and that the gate latch was about 5 feet long, 2 inches wide, and seven-eighths of an inch thick, and that each was a weapon likely to produce death. John R. Cooper, of Macon, and S. B. Lippitt, of Albany, for plaintiff in error. R. C. Bell, Sol. Gen., of Cairo, W. I. Geer, of Colquitt, and F. A. Hooper, of Atlanta, for the State. BLOODWORTH, J. Judgment affirmed BROYLES, P. J., and HARWELL, J., concur. (21 Ga. App. 125) McDONALD v. STATE. (No. 9008.) (Court of Appeals of Georgia, Division No. 2. Oct. 31, 1917.) 1. (Syllabus by the Court.) CRIMINAL LAW 825(2)—INSTRUCTIONS- complained of in the fourth ground of the motio The excerpt from the charge of the court for a new trial, correctly defines the offense of larceny from the person, and the exception taken thereto, that the court failed "to charge the law as to principals in the first and second degree," is not well taken. Collins v. State, 88 Ga. 347, 14 S. E. 474 (1): Morgan v. State, 120 Ga. 294. 48 S. E. 9 (1); Hill v. State, 18 Ga. App. 259, 89 S. E. 351 (1). 2. CHARGE OF COURT-LARCENY. The charge of the court excepted to in ground 5 of the motion, when considered in connection with the other portions of the charge, was not erroneous for any of the reasons assigned. 3. CRIMINAL LAW 784(4) CHARGE - CIR CUMSTANTIAL EVIDENCE. The charge of the court complained of in ground 6 of the motion instructed the jury: "In order to convict on circumstantial evidence, the facts proven in the case must not only be consistent with the guilt of the accused, but it must be inconsistent with any other reasonable hypothesis except that he is guilty; if it is not. you would not be authorized to convict upon circumstantial evidence." This charge is substantially in the language of the Code, and is not erroneous for any reason assigned. 4. CRIMINAL LAW 822(8), 825(3)—Charge CONSTRUED AS A WHOLE-REQUEST FOR MORE SPECIFIC INSTRUCTION—“ALIBI.' The charge of the court on the subject of alibi, excepted to in ground 7 of the motion, is as follows: "There is evidence in this case for the purpose of showing that the defendant is not guilty because he was not present at the time and place that the larceny was committed, if a larceny was committed. That is known in law as an alibi. Alibi as a defense involves the impossibility of the presence of the defendant at the time that the crime was committed, if it was committed. As a defense, an alibi must be established to the satisfaction of the jury. However, the jury may consider the proof as to alibi along with the other proof, and should consider the proof along with the other proof in the case to determine whether or not guilt is shown beyond a reasonable doubt." This charge, while omitting the word "reasonable" in the expression "reasonable satisfaction," was not erroneous when taken in connection with the entire charge on this subject. If the movant desired further instructions on his defense of alibi he should have made an appropriate and timely written request therefor. Pyles v. State, 12 Ga. App. 667, 78 S. E. 144. sitting room, reach in his pocket and give the defendant the pocketbook, and then saw the defendant go off; that when Andrews cried out that he had lost his pocketbook this witness then rushed after Jenkins, who ran and hid; that the next morning this witness saw the defendant in Atlanta, and, together with some officers, tried to catch him, but he ran, and they lost sight of him; that afterward, when the defendant was seen by the officers, he broke and ran, but was finally caught and arrested. The defendant denied the charge against him, and claimed that he was in Atlanta at the time which the prosecutor testiCHARGEIM-fied was the time of the larceny, and he offered evidence to support his defense of alibi. Hubert Fields Rawls and S. L. Wisenberg, both of Macon, for plaintiff in error. John P. Ross, Sol. Gen., of Macon, for the State. HARWELL, J. Judgment affirmed. BROYLES, P. J., and BLOODWORTH, J., [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Alibi.] 5. CRIMINAL LAW824(10) · PEACHMENT OF WITNESS-NECESSITY FOR RE QUEST. The failure of the court to charge on the impeachment of witnesses, in the absence of a request so to do, was not error. Millen & S. W. R. Co. v. Allen, 130 Ga. 657, 61 S. E. 541 (5); Wyatt v. State, 18 Ga. App. 29, 88 S. E. 718 (2). 6. CRIMINAL LAW 954(4) MOTION FOR NEW TRIAL-SUFFICIENCY-ADMISSION OF EVIDENCE. concur. A ground of a motion for new trial complaining of the admission of testimony must show the grounds of objection urged by the HARDEN movant at the time the evidence was offered. An objection to the admission of evidence upon the ground merely that it is inadmissible is equivalent to assigning no reason at all for its exclusion. (21 Ga. App. 218) v. CENTRAL OF GEORGIA RY. CO. et al. (No. SSS7.) (Court of Appeals of Georgia, Division No. 1. Nov. 2, 1917.) (Syllabus by the Court.) 7. LARCENY 61-LARCENY FROM THE PER-1. APPEAL AND ERROR 1064 (1)—EVIDENCE SON-SUFFICIENCY OF EVIDENCE. The evidence supports the verdict, and the trial judge did not err in refusing the defendant a new trial. Error from Superior Court, Bibb County; H. A. Mathews, Judge. Zula McDonald was convicted of larceny from the person, and he brings error. Affirmed. 1281⁄2 [New, vol. 17 Key-No. Series]-ADMISSIBILITY-INSTRUCTIONS. Whether or not declarations claimed to be a part of the res gestæ are really such is ordinarily a question of law for determination by the court, and in this case the court correctly held the evidence admissible as part of the res gesta. Since the only matter which was within the province of the jury was the weight to be given the evidence, the instruction, "You are to determine whether or not it is a declaration ac The defendant and one Jenkins were joint-companying an act, or so nearly connected therely indicted for the larceny of money and a with in time as to be free from suspicion of device or afterthought," may possibly have been pocketbook from the person of one Andrews. erroneous in this case, under the ruling in Jenkins was tried and convicted, and the Southern Railway Co. v. Brown, 126 Ga. 1, 7, 54 judgment of the court overruling his motion S. E. 911. See, also, Southern Railway Co. v. for new trial was reviewed and affirmed by Williams, 19 Ga. App. 544, 91 S. E. 1002(6). However, this instruction furnishes no sufficient the Court of Appeals. Jenkins v. State, 19 ground for reversal, since the statement of the Ga. App. 626, 91 S. E. 944. The defendant plaintiff, which was thus admitted by the court in the instant case was afterward tried and as part of the res gestæ, did not itself desigconvicted, his motion for new trial was over-who shot him and "stamped on his fingers," nor nate or definitely describe the particular man ruled, and he excepted. The testimony for did the testimony of the plaintiff or of any witthe state, briefly stated, shows that as An- ness in his behalf, at the trial, designate or dedrews, the prosecutor, was in the act of tak- scribe the particular one of the three defendants ing out his pocketbook and money for the (sued jointly with the railway company) as the person who inflicted this injury upon him, and purpose of purchasing a ticket at the terminal it would be impossible from the res gesta statestation in Macon, Ga., Jenkins and the de- ment admitted, coupled with all the other testifendant pressed up against him; that at the mony, to determine whether the conductor, flagman, or the brakeman was the person liable in time he replaced the pocketbook and money damages with the railway company for such inin his pocket, the defendant engaged him in juries. conversation about changing a dollar bill; that he stepped away from the ticket window, and, immediately missing his pocketbook and money, made an outcry; that Jenkins was seen by another witness for the state to take a pocketbook from the pocket of the prosecutor, motion to the defendant, go out of the door with him, and, when they got out of the 2. TRIAL 68(1)-RECALL OF WITNESS. Ground 2 of the amendment to the motion Richard Calhoun Billie B. Bush, of Colquitt, for plaintiff in error. B. T. Castellow, Sol. Gen., of Cuthbert, and R. R. Arnold, of Atlanta, for the State. ment, he can be. I am not going to let him go Error from Superior Court, Miller County; back except under those circumstances.' Coun- W. C. Worrill, Judge. sel thereupon stated that he expected "to prove by this witness that he was employed by the was prosecuted, and Central of Georgia Railway Company as a con- from the verdict he brings error. Affirmed. ductor on its Tybee division, and that, as such, he got into an altercation with a passenger on that train during the year 1911, and that he threw the passenger down; that in doing so he injured a lady, and the lady instituted suit in this court to recover damages, and that he testified, declaring that he was not the man who had done it, and had not got into an altercation. I wish to introduce that testimony for the purpose of showing general character, together with the record in the case." Counsel failing to declare that it was his intention to "lay grounds for impeachment" of the witness Keener, the court did not err in refusing to allow the witness to be recalled and subjected to further ex amination. 3. APPEAL and Error 1078(1) — GrounDS OF ERROR-WAIVER. "Grounds of error not covered by the brief or the argument of counsel for the plaintiff in error will be treated as abandoned. The general statement in the brief that grounds not referred to or argued are nevertheless not abandoned will not be sufficient to change the rule above announced. Courts of review have the right to expect assistance from counsel by citation of authority or argument, and will be apt to accept the inference that the lack of interest by counsel is due to a conviction of the lack of merit." Youmans v. Moore, 11 Ga. App. 66, 74 S. E. 710. See, also, White Sewing Machine Co. v. Horkan, 17 Ga. App. 48, 86 S. E. 257(7); Jefferson v. City of Perry, 18 Ga. App. 690, 90 S. E. 366: James v. Boyett, 19 Ga. App. 157, 91 S. E. 219. In the brief of counsel for the plaintiff in error in this case the only reference to one of the grounds of the motion for a new trial is as follows: "The third ground of the motion, we submit, is well taken." Such a statement does not amount to an argument in support of the ground referred to, and affords no assistance to the court in considering it, and the failure to say anything further in regard to that ground amounts to an abandonment thereof. Rounsaville v. Camp, 19 Ga. App. 336, 91 S. E. 446(4). 4. VERDICT-NEW TRIAL EVIDENCE. There was evidence to support the verdict, and the court did not err in overruling the motion for a new trial. Error from City Court of Savannah; Davis Freeman, Judge. Action by Frank Harden, alias Harrell, by his next friend against the Central of BROYLES, P. J. Judgment affirmed. cur. (21 Ga. App. 97) GARNER v. FARMERS' & MERCHANTS' (Court of Appeals of Georgia, Division No. 1. (Syllabus by the Court.) DEMURRER-DIRECTED VERDICT. Sloan v. Farmers' & Merchants' Bank, 20 Ga. This case being controlled by the rulings in App. 123, 92 S. E. 893; Hanes v. Farmers' & Merchants' Bank, 20 Ga. App. 129, 92 S. E. 896, and Evans v. Farmers' & Merchants' Bank, 93 S. E. 231, there was no error on the part of the trial judge in sustaining the demurrer to the amended answer and striking it, or in thereafter directing a verdict for the plaintiff for the full amount sued for. Error from Superior Court, White County; J. B. Jones, Judge. Action by the Farmers' & Merchants' Bank against G. W. Garner. Judgment for plaintiff, and defendant brings error. Affirmed. G. S. Kytle and C. H. Edwards, both of Cleveland, and B. P. Gaillard, Jr., of Gainesville, for plaintiff in error. Underwood & Henderson, of Cleveland, and W. A. Charters, of Gainesville, for defendant in error. JENKINS, J. Judgment affirmed. (21 Ga. App. 98) KEITH v. FARMERS' & MERCHANTS' BANK. (No. 8835.) Georgia Railway Company and others. There (Court of Appeals of Georgia, Division No. 2. was a judgment for the defendants, and plaintiff brings error. Affirmed. Osborne, Lawrence & Abrahams, of Savannah, for plaintiff in error. Lawton & Cunningham and H. W. Johnson, all of Savannah, for defendants in error. WADE, C. J. Judgment affirmed. (21 Ga. App. 75) CALHOUN v. STATE. (No. 9016.) Oct. 31, 1917.) (Syllabus by the Court.) 1. VENDOR AND PURCHASER 15- FRAUD INSPECTION-CONSIDERATION. Where there is no fraud on the part of the vendor of real estate which prevents the inspection thereof by the purchaser, and the latter fails to exercise diligence in inspecting the prop erty, a plea of failure of consideration on account of its physical condition or environment will not be entertained. Sloan v. Farmers' & Merchants' Bank, 20 Ga. App. 123, 92 S. E. $93 (b). Hanes v. Farmers' & Merchants' Bank, 20 Ga. App. 129. 92 S. E. 896: Martin v. Har (Court of Appeals of Georgia, Division No. 2. well, 115 Ga. 156, 41 S. E. 686 (3). Oct. 30, 1917.) (Syllabus by the Court.) REVIEW ON APPEAL. No error of law is complained of, and the evidence authorized the verdict. 2. DEMURRER TO PLEA. The plea set up no legal defense, the trial judge did not err in sustaining the demurrer to it, and the judgment is affirmed. Error from Superior Court, White County; J. B. Jones, Judge. |