Barron et al. vs. The State of Georgia. BARRON et al. vs. THE STATE OF GEORGIA. 1. Where four persons were jointly indicted for riot, and the jury returned a verdict finding two of them guilty of "unlawful riot," and the other two guilty of "lawful riot," this was, in effect, a finding of not guilty as to the two latter defendants, and it was error to remand the jury to their room to correct their verdict as to them. (a.) The mere making a noise or behaving tumultuously will not alone constitute riot, in the absence of any violence; and the effect of the verdict as to two of the defendants was to find that they committed no unlawful act of violence, and that, though their conduct may have been tumultuous, it was not violent. Code, §4514. 2. While jurors should not be related to the parties by blood or affinity, and such relationship affects their competency, and ordinarily disqualifies them from serving, yet where the discovery of the relationshp of two jurors to the prosecutor is made a ground of a motion for a new trial, and the affidavits in support thereof merely show that since the trial the defendants and their counsel have heard that such relationship existed, but do not show its actual existence, or the source from which such information came, this does not require a new trial. (a.) Directions given that a judgment be entered discharging two of the defendants substantially found not guilty, and as to the other two, that the verdict and sentence stand. Judgment reversed in part and affirmed in part. March 17, 1885. HALL, Justice. [Four defendants were jointly indicted for riot. The jury returned a verdict finding two of them guilty of "unlawful riot," and the other two guilty of "lawful riot." Over objection of the defendants' counsel, the court ordered the jury to return to their room and correct their verdict. They retired, and in a short time returned a verdict finding all of the defendants guilty, and each of the defendants was sentenced to pay a fine or be imprisoned. They moved for a new trial, on the ground that there was error in ordering the jury to retire to their room to correct the first verdict returned; and because two of the jurors were second cousins to the prosecutor, which was unknown to the de V 74-53 74 833 109 542 74 833 113 1061 74 833 125 145 | 74 834 e124 467 Eichberg vs. Bandman. fendants and their counsel until after the trial. This ground was supported by affidavits of the defendants and their counsel, that they had heard of the relationship since the trial and did not know of it before. The motion was overruled, and defendants excepted.] EICHBERG vs. BANDMAN. Where a married woman, living with her husband, owned a separate estate, which consisted in part of a house and lot where they resided, and she carried on the business of keeping a boarding-house, since the act of 1866, her earnings in that enterprise belonged to her, and she was entitled to sue and recover in her own name from one who boarded with her and failed to pay the amount due therefor. 73 Ga., 275. Judgment reversed. BLANDFORD, Justice. [Mrs. Caroline Eichberg brought suit against J. C. Bandman on an open account for board furnished. The testimony of the plaintiff was to the effect that she was a married woman, living with her husband, and had never been made a free-trader; that she had a separate estate, including the residence where the family resided. She took defendant to board with her, with the consent of her husband that she might do so and have the proceeds of his board. On motion, the court granted a non-suit, on the ground that the earnings of a married woman, who was not a free-trader, belonged to her husband, and she could not sue for and collect them. Plaintiff excepted.] Buchanan vs. The State of Georgia; Latimer vs. Tumlin et al.; etc. BUCHANAN vs. THE STATE OF GEORGIA. The evidence is ample that the defendant was legally guilty of the crime of simple larceny, and a fine of fifty dollars, or three months' imprisonment in the chain-gang, was very lenient against a chicken thief. Judgment affirmed. February 24, 1885. JACKSON, Chief Justice LATIMER VS. TUMLIN et al. H. sold a tract of land to L., gave bond for titles, and received part of the purchase money. Subsequently L. having ascertained that there were old judgments against his vendor, he caused the sale to himself to be rescinded, and obtained a decree against H. for the money paid, which was to operate against the land as a lien; he also retained possession of the land. Prior to the date of this decree, a judgment had been obtained against H.; on this a fi. fa. was issued and levied on the land, which was sold at sheriff's sale. The purchaser ruled the sheriff to require the latter to put him in possession. L. resisted the rule: Held, that the rule was properly made absolute, requiring the sheriff to place the purchaser in possession. L. held under the defendant in fi. fa., and his decree gave him. no right to hold possession of the land against the purchaser under a prior judgment. Judgment affirmed. March 10, 1885. BLANDFORD, Justice. FULLER vs. SMITH. 1. The court gave the law properly in charge; the jury decided the issues correctly, under the evidence; and there was no abuse of discretion in refusing to grant a new trial. 2. Where exception is taken to the admission of evidence, the ground of objection thereto must be stated. Judgment affirmed. March 17, 1885. JACKSON, Chief Justice. Damnman Brothers & Company vs. Armstrong; Parker vs. The State. DAMNMAN BROTHERS & COMPANY vs. ARMSTRONG. [Blandford, J., did not preside, on account of providential cause.] A motion for new trial was made during the term when the case was heard; a consent.order was taken allowing a certain time to file an approved brief of the testimony, and postponing the hearing of the motion until such time in vacation as the judge should appoint, of which he should give notice to the parties. The brief was approved and filed within the time prescribed, and nothing further was done until after the adjournment of the next term of court, when a time for the hearing was appointed; the motion was submitted without argument, and was refused by the judge, on the ground that the order for hearing it expired with the adjournment of the last term of court: Held, that this was error. On the failure of the judge to appoint a time for the hearing, the motion stood over for a hearing at the next term of court, and was in the situation of any other motion not reached during the term, it not appearing that the failure to hear it was caused by any laches of the movant. 63 Ga., 541; 69 Id., 748. Judgment reversed. April 2, 1885. HALL, Justice. PARKER VS. THE STATE OF GEORGIA. 1. A showing for a continuance based on the absence of a witness should show what was expected to be proved by such witness, in order that the court might judge of its competency and materiality. Code, §3522. 2. Newly discovered evidence which was cumulative, and would have been admissible only to impeach the character of the state's witnesses, will not authorize the grant of a new trial. Code, §3716. 3. If the jury believed the account given by the state's witnesses, there was ample evidence to require their finding; and the ver dict having been approved by the presiding judge, this court will not interfere. Judgment affirmed. April 2, 1885. HALL, Justice. Phelps vs. Thurman; Bonds vs. Pearce et al. PHELPS vs. THURMAN. [This case was argued at the last term, and the decision reserved.] Where, to a suit to recover damages for the wrongful and malicious (b.) No other error of material character appears in this case. Judgment reversed. February 24, 1885. BLANDFORD, Justice. BONDS vs. PEARCE et al. While this court has held that a certiorari is such a suit as might be renewed within six months after dismissal, yet the statute imperatively requires the plaintiff in certiorari to cause written notice to be given to the opposite party in interest, his agent or attorney, of the sanction of the writ, and also the time and place of the hearing, at least ten days before the sitting of the court to which the same is returnable, and in default of such notice, unless prevented by unavoidable cause, that the certiorari shall be dismissed. When, therefore, a certiorari has been dismissed for this cause, and it is sought to renew it by a second certiorari within six months thereafter, it also will be dismissed. Cobb's Dig., 528; Code, §§4057, 4059, 4058, 217; Acts, 1858, p. 74. (a.) This case differs from those in 32 Ga., 435, and 22 Id., 359. Judgment affirmed. March 10, 1885. HALL, Justice. |