IN GEORGIA, INDICTMENT SHOULD CHARGE DEFENDANT "IN THE NAME AND BEHALF OF THE CITIZENS OF GEORGIA "; but an exception on the ground of failure to so charge must be taken before trial, and if not so taken, will not be good in arrest of judgment. DEFENDANTS, UPON APPLICATION, HAVE RIGHT TO BE TRIED SEPARATELY in all cases where they are indicted for an offense which does not require the joint act of two or more to constitute the offense; the rule is otherwise in those cases which require the concurrence of two or more in the commission of the offense. In cases of the latter class, the matter rests in the legal discretion of the court before whom the trial takes place. JUDGE SHOULD DISCHARGE HIS DUTY WITH IMPARTIALITY, and it is error for him to remark, on a trial for murder, in ruling upon a question, that the deceased "had a right to be mad; he thought anybody shot had a right to be mad." The deceased had no right to be mad unless he had been wronged, and whether or not the defendants had wronged him, and if they had done so, to what extent, was the issue on trial by the jury, as to which they should receive no intimation from the judge of what he thought the verdict should be. INDICTMENT for murder. The indictment charged Ben Horne, Scott Horne, Edmund Horne, Richard Horne, and George Jackson, Jr., with the murder of Joab W. C. Horne. After the first juror had been sworn, the defendants moved to sever on the trial. The state objected on the ground that the motion came too late. The court overruled this objection, and required the defendants to assign special reasons for severing; whereupon they assigned specifically that they wished to use each other as witnesses. Counsel for the state consented that the defendants should testify as if severed, and thereupon the

court refused the motion to sever. In the progress of the case the solicitor-general asked a witness the condition of the aeceased's mind towards the prisoners after the mortal wound had been given, -whether kind or malevolent. The court refused to allow the witness to answer the question, remarking, "Horne had a right to be mad; he thought anybody shot had a right to be mad." The jury found the defendants guilty, who thereupon moved to arrest the judgment. Other facts appear from the opinion.

C. T. Goode and Samuel Elam, for the plaintiffs in error. N. A. Smith, solicitor-general, and W. A. Hawkins, for the state.

By Court, WALKER, J. 1. By the revised code, section 4535, the form of an indictment should be: "The grand jurors selected, chosen, and sworn for the county of, to wit: in the name and behalf of the citizens of Georgia, charge and accuse," etc. By section 4536, all exceptions which go merely to the form of an indictment shall be made before trial, and no motion in arrest of judgment shall be sustained for any matter not affecting the real merits of the offense charged in the indictment. After the rendition of the verdict, the defendants moved to arrest the judgment because the bill of indictment fails to charge defendants "in the name and behalf of the citizens of Georgia." Did this omission affect the real merits of the offense charged in the indictment? Was it not an exception which went merely to the form of the indictment? The exception, being merely to the form of the indictment, should have been taken before trial.

2. Ought the court to have permitted the defendants to sever on their trial? This is an important question, and has received our careful consideration. By the old law, when two or more defendants were jointly indicted, any one might be tried separately, except such offenses as required the concurrence of two or more to constitute the crime; in such cases, the defendants should be tried jointly: Cobb's Dig. 841. The act of 1856 (Pamp. Acts, p. 266) amended this, and authorized the trial of one or more in those cases which require the joint act of two or more to constitute the crime. The history of this act, as we understand it, and the reason for its passage, was, that in many cases of riots, etc., some of the parties would avoid arrest, and one party might be held for years without being tried, because the other party charged in the

indictment could not be brought to trial. This was especially so in the counties bordering on the state line, and proved to be in many cases a great hardship to those parties who were indicted for such offenses and remained within the jurisdiction of the court. They could not be tried separately, and they could not demand a trial (McAllister v. State, 17 Ga. 618), and were liable to be bound indefinitely to attend upon an indictment for an offense for which they could not be tried. The act of 1856 intended to remedy this evil, and allow any one of such defendants to be tried separately, without waiting for the arrest of others charged in the same indictment. The effect of this amendment was to advance the ends of justice and secure to the citizen his right to a speedy and public trial. Section 4595 of the revised code intended to embrace the provisions of the code of 1833 as amended by the act of 1856, and authorized the separate trial of defendants for all offenses. In Caldwell v. State, 34 Ga. 10, this section was before the court for construction, and the court seemed to hold that the court is the repository of the discretion given by the statute to say in what cases a defendant may be tried separately, though jointly indicted. The court, however, there say (page 20), "We do not say it is an unbridled, uncontrollable discretion; but where severance is demanded as a right, unsupported by cause shown, and refused, we are wholly indisposed to interfere with the exercise of the discretion." That was an indictment for riot,a crime which required the joint act of two or more to constitute it, and the defendants demanded a separate trial as a matter of right, upon mere motion, and without any special cause shown therefor. Under that state of facts, and in that class of cases, we think the decision was right, and we affirm it. This case, however, is a very different one.

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Here the defendants were jointly indicted for an offense of which one might be guilty and all the others innocent. This is one of the other class of cases referred to in the statute. The defendants stated that they wished to use each other as witnesses on the trial. This was assigning a special reason for severing on the trial. We all from our experience know how difficult it is to have a fair trial when several parties are on trial and they are introduced as witnesses for each other. The witness cannot testify in his own favor, and he is not bound to criminate himself. Besides, the confusion of several issues being passed upon at the same time by the same jury, affecting the lives of several persons, and some of those per

ons on the stand as witnesses, is not likely to enable the jury to do full and impartial justice to each defendant. In this case, the wife of one of the defendants was a witness, and there is a difficulty in determining from the bill of exceptions what the court ruled as to certain portions of her testimony. Even the counsel for the state, in the argument before this court, differ as to what was decided. It originates from complicating too many issues to be decided at once. The humanity of the law did not intend to deprive three men of their lives by a trial thus confusedly conducted. The court should have granted their motion to sever on their trials, and then the attention of the court, counsel, and jury could have been fixed upon the party on trial; and justice would much more likely be attained in this manner than by the course pursued on the trial. In a case of this sort, the fact that the defendants wished to use each other as witnesses ought to have been sufficient special reason for severing on the trial, even if the court had the right to refuse it without special cause shown, and we would have felt bound to reverse his ruling on this point as a matter of discretion. The court must so use his discretion as not to abuse it; and if he improperly use his discretion, this court will control it. But, as a general rule, we hold that in all cases where parties are indicted for an offense which does. not require the joint act of two or more to constitute the offense, the defendants, upon application, have a right to be tried separately. The rule is otherwise in those cases which require the concurrence of two or more in their commission. In cases of this class, the matter is subject to the legal discretion of the court before whom the trial takes place.

3. The remark of the judge in ruling out a question asked by the state's counsel, "that Horne had a right to be mad; he thought anybody shot had a right to be mad," was improper; and such an impropriety as we should be constrained to correct, if there were no other error in the case. It was certainly an intimation by the judge during the progress of the cause as to the guilt of the accused; and would make it obligatory upon this court to grant a new trial: Rev. Code, sec. 3183. Horne had no right to be mad unless he had been wronged; and whether defendants had wronged him or not, and if so, of how great a degree was that wrong, was the issue then upon trial. The judge should discharge his duties with impartiality. Let him so administer the law that it may appear, as indeed his feelings should be, that it is wholly indifferent

to him which party may succeed, provided the law is administered. Justice is represented as blind, so that she may not know either party, and with a firm hand hold the scales even. The jury should not from any conduct or word of the judge be able to know what he thinks the verdict should be. Let him discharge with impartiality those duties which the law imposes upon him, and leave the jury free to perform those imposed upon them, according to law and the facts of the

case.

Judgment reversed.

OBJECTION TO INDICTMENT NOT TAKEN BEFORE VERDICT COMES TOO LATE: See State v. Shippey, 88 Am. Dec. 70, note 75, where other cases are collected. IT IS ERROR FOR COURT TO EXPRESS OPINION TO JURY as to the weight or sufficiency of the testimony upon any fairly controverted or debatable question of fact: Hill v. State, 86 Am. Dec. 736, note 740; People v. King, 87 Id. 95, note 102, where other cases are collected.

SOUTHERN EXPRESS COMPANY v. PURCELL.

[87 GEORGIA, 103.]

NOTHING EXCEPT ACT OF GOD OR PUBLIC ENEMY WILL EXCUSE COMMON CARRIER for loss of goods intrusted to him for transportation, and he cannot, in Georgia, limit that legal liability by any notice given either by publication or by entry on receipts given or tickets sold; but he may limit his liability by express contract, independent of his receipt, fairly made between the parties.

WHERE EXPRESS CONTRACT IS ENTERED INTO BETWEEN COMMON CARRIER AND SHIPPER of goods, limiting the former's legal liability for loss thereof, evidence tending to show that the loss occurred through the shipper's failure to perform his contract, and not through the carrier's negligence, is admissible on behalf of the carrier.

ACTION against common carrier. The facts are stated in the opinion.

William T. Gould and William Dougherty, for the plaintiff in error.

H. W. Hilliard, for the defendant in error.

By Court, WARNER, C. J. This is an action brought against the defendant as a common carrier for the loss of thirty-three bales of cotton. The errors complained of are, that the court below refused to grant a new trial upon the several grounds specified in the record. The first assignment of error that we will now consider and decide is, that the court below erred in