juries, provides: "If the person injured is himself an employé of the company, and the damage was caused by another employé, and without fault or negligence on the part of the person injured, his employment by the company shall be no bar to the recovery." Of course, a fellow servant may be guilty of contributory negligence by voluntarily placing himself within, or by remaining within, the range of the fellow servant's negligent conduct, and in a certain sense it may be said that in such cases he assumes the negligence of the fellow servant; but a laconic and not altogether inexact statement of the substance of the two Code sections cited above may be expressed in the words, "The employé of a railway company does not assume the risk of injury from the negligence of his co-employés," and in cases where such a statement of the rule is not likely to prove misleading, and is coupled with explicit instructions as to the element of the servant's contributory negligence, there is no error in so charging the jury.

8. Some of the grounds of the motion make complaint of charges wherein the jury was In substance instructed that, while the conductor in this case assumed the risk of the ordinary dangers connected with the operation of the construction train, he did not thereby assume the risk of the negligence of other employés engaged in the work. This principle, in the abstract, is accepted as correct by the courts of this state. Lawhorn v. Millen & Southern Ry. Co., 97 Ga. 742, 25 S. E. 492; Southern Cotton Oil Co. v. Dukes, 121 Ga. 787, 49 S. E. 788; Blount Carriage & Buggy Co. v. Ware, 125 Ga. 571, 54 S. E. 637; Southern Cotton Oil Co. v. Gladman, 1 Ga. App. 259, 58 S. E. 249. As is said in the case last cited: "The assumption by the servant of the known ordinary risks, even of a dangerous employment, does not carry with it the assumption of an unknown, supervening, extraordinary, hazard occasioned by the master's negligence." Of course, to make this rule as stated directly applicable, we must remember that in cases of railway companies the negligence of the fellow servant is regarded as negligence of the master for most purposes. In the practical application of the rule above stated it must not be overlooked that if the dangers accompanying the employment are brought about in whole or in substantial part by the negligence or wrongful conduct of the employé injured, and these dangers caused the injury or contributed thereto, such servant cannot be regarded as blameless, so as to be allowed to recover, although the supervening negligence of the master or of the fellow servant may justly be regarded as the chief, efficient agency in causing the injury.

9. Error is also assigned on several of the court's charges which approach the border line of error, and in some cases step over, in the respect that in these instructions the court states or assumes that certain conduct

does or does not amount to negligence. The charge, "Even if you believe that the occupation in which the deceased, Mr. McManus, was engaged was dangerous, the jury are instructed that merely to engage in a dangerous occupation is not by itself negligence," approaches the border line; and the charge, "If you believe, from the evidence, that notwithstanding the fact that there was no bar in the door, Mr. McManus would not have been injured if the train had been handled with ordinary care, and if you believe that the death of Mr. McManus was caused by the negligence of the engineer in jerking the train, or in otherwise negligently handling the cars, then the plaintiff could recover in this case, provided, as I have charged you, and always have charged you, that he could not have avoided the consequences of such negligence to himself," steps over. The expression, "was caused by the negligence of the engineer in jerking the train," is justly open to the criticism that it assumes that the jerking of the train would be negligent. If this expression had been accompanied, either directly with, or in reasonably proximate relation with, an instruction that it was a question for the determination of the jury as to whether the jerking of the train, if any such jerk occurred, was, under the circumstances, negligent or not, the meaning given to the language of the trial judge might be regarded as unwarranted. However, we have carefully searched through the entire charge of the court, and find that nowhere did he squarely present to the jury the issue as to whether the alleged conduct of the engineer amounted to negligence, under the circumstances; on the contrary, we think it may justly be stated that a juror of ordinary intelligence would be led to believe, from the charge as a whole, that, if the engineer stopped the train suddenly and with a jerk, such conduct would in law be assumed to be negligent. This error comes at a crucial point in the case, and though, were it not for its existence, we would probably, out of our great reluctance to disturb verdicts for minor errors or irregularities, affirm the judgment, we must hold that for this injustice to the defendant we should grant a new trial. Probably the strongest defense available to the railway company, under the circumstances of this transaction, is the contention that, in view of the sudden discovery of the presence of a number of persons on the trestle a short distance away, it was not negligent for the engineer to apply the air brakes in the fullest emergency, even though a violent and sudden jerk to the train was the natural result of such a course. Such a defense, predicated upon the engineer's exertions to save human life, would likely appeal most strongly to an ordinary jury, and the judge should not have slighted it, and especially should he not have used language in his charge capable of being regarded as assuming that such conduct was, as a matter of law, negligent. Our trial

judges are allowed no latitude in these matters. They must not assume or declare that any given conduct, not amounting to violation of law, is negligent. As to these things our judges have been stricken dumb by statute, and their very attempt to speak is made mandatory cause for a new trial.

The contention that the verdict is excessive seems not to be well founded. If the defendant was liable at all, the damage assessed by the jury seems to closely approximate the amount fairly justified by the proof. We would not disturb the verdict on the facts; but, for the errors pointed out above, a new trial must be granted. Judgment reversed.

MOODY v. STATE. (No. 385.) (Court of Appeals of Georgia. May 9, 1907.) 1. CRIMINAL LAW-FORMER ACQUITTAL.

Where, by oversight, inadvertence, or otherwise, the defendant is put on trial upon an indictment alleging the homicide of a living man, and, upon the mistake being discovered, a verdict of not guilty is entered, such acquittal cannot be pleaded in defense to another indictment charging the same defendant with the homicide of another person, although it was the intention in the first instance to indict and prosecute for the killing of the person last mentioned, and no other transaction was contemplated, in the original indictment or trial, by the grand jury, the prosecutor, or the state's counsel.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 383.]

2. SAME-INSTRUCTIONS-CORRECTION OF RE

ᏢᏅᎡᎢ .

The trial judge has the power to correct errors in the stenographic report of his charge, even after it has been filed as part of the record, under his approval.

[Ed. Note. For cases in point, see Cent. Dig. vol. 13, Courts, § 369.]

3. SAME-NEW TRIAL.

A new trial will not be granted for refusal to grant a written request to charge, where the request contains an inaccuracy of law, where it is not adjusted to the proof or the defendant's statement, or where it is fairly covered by the general charge.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1980, 2011, 2012.] 4. SAME.

Minor verbal inaccuracies in the charge, not calculated to mislead the jury, do not constrain the grant of a new trial.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3154.]

5. SAME-INSTRUCTIONS.

In the absence of a timely written request, no error can be successfully assigned upon the failure of the judge to charge upon the impeachment of witnesses.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 2007.]

6. HOMICIDE-DYING DECLARATIONS.

While dying declarations should be received with caution, slight preliminary proof will justify the judge in prima facie admitting them, for final submission to the jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 26, Homicide, § 459.]

7. SAME-INSTRUCTIONS.

It is proper for the court to instruct the jury that he passes only prima facie upon the

admissibility of dying declarations, and that the jury are the judges, not only of the weight to be given them, but also as to whether they were made under such circumstances as to be entitled to consideration at all.

8. WITNESSES-CREDIBILITY.

The credibility of the witnesses is exclusively for the jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1719.]

9. CRIMINAL LAW-NEW TRIAL-NEWLY DISCOVERED EVIDENCE.

Newly discovered evidence, cumulative or impeaching in its character, does not require the grant of a new trial.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 2328, 2331.] 10. SAME-APPEAL.

A verdict not unsupported by evidence will not be set aside by this court, though the proof of the defendant's guilt may not be altogether satisfactory.

(Syllabus by the Court.)

Error from Superior Court, Tattnall County; Rawlings, Judge.

One Moody was convicted of murder, and brings error. Affirmed.

W. T. Burkhalter and H. H. Elders, for plaintiff in error. Alfred Herrington, Sol. Gen., L. J. Tippins, and W. W. Larsen, for the State.

POWELL, J. 1. We will first dispose of the plea of former acquittal. The defendant had killed O. D. Barnhill. Upon the investigation of this homicide the grand jury by inadvertence returned an indictment wherein the person killed was named as M. C. Barnhill. M. C. Barnhill was a witness before the grand jury, and was in life at the time of the trial. The defendant was arraigned upon this indictment, the jury was sworn, and, pending the introduction of evidence, the error was discovered. A verdict of not guilty was entered, and a new indictment was returned, charging the murder of Q. D. Barnhill. The prosecutor, the state's counsel, and the grand jury were attempting to prosecute and indict in the first case for the same homicide alleged in the last case. Upon arraignment on the second indictment the defendant entered a special plea of former acquittal, and the facts were conceded to be substantially as above. The court found against the plea. If it were not for the precedent of the Supreme Court decision in Gully v. State, 116 Ga. 527, 42 S. E. 790, this state of facts would present a close question. However, the Gully Case is so closely analogous as to free the question from doubt. Gully committed bigamy by marrying Bessie Shingler. Intending to present for this offense, the grand jury preferred an indictment charging the marriage with Gussie Shingler, a sister of Bessie Shingler. The defendant was acquitted on this indictment, and a new bill was returned, charging the marriage with Bessie Shingler. It was conceded, as in this case, that there was but one offense, and that the wrong name was inserted in the first indictment by inadvertence. The plea was held

bad. The meaning of that decision is that, if the first indictment be so drawn that no phase of the transaction in question can be investigated under it, there is no jeopardy as to the transaction, although it was the intention of the grand jury and the prosecuting officer that there should be. In this it is distinguished from Ingram v. State, 124 Ga. 448, 52 S. E. 759, Holt v. State, 38 Ga. 187, and several other cases of the same tenor.

2. Complaint is made that the court corrected the stenographic transcript of his charge, after having approved it and ordered it filed. No error. A. & B. Air Line Ry. v. McManus, 1 Ga. App. 302, 58 S. E. 258.

3. The defendant made a timely request in writing that the court give in charge to the jury section 72 of the Penal Code of 1895. The court did not give this section in charge literally, but did give in charge all of section 70. We think the latter section covered the issues as fully as they were made by the defendant's statement or evidence. In fact, neither of these sections was applicable under the theory of the defendant's statement, for therein he set up that the killing was altogether accidental, so far as he was concerned with it; and this the court covered fully. Another request was properly refused, because it did not contain a correct principle of law.

4. Error is assigned because the court instructed the jury that, if they believed the killing accidental, they would be "authorized" to find the defendant not guilty; the specific criticism being that the instructions to acquit under these circumstances should have been absolute. If this verbal criticism is well taken (and we are not prepared to say that it is), the error is too trivial to work a reversal.

5. Error is assigned that the court did not, without request, charge upon contradictory statements of the deceased, and upon the impeachment of witnesses. Instructions upon such questions are not compulsory, in the absence of written request. Cress v. State, 126 Ga. 567, 55 S. E. 491.

6. The foundation for the submission of the alleged dying declarations to the jury was sufficiently laid. Young v. State, 114 Ga. 850, 40 S. E. 1000.

7. An excerpt from the judge's charge on the subject of dying declarations is set out, and error assigned because the court instructed the jury that these declarations were first passed upon by the court prima facie. An examination of the context discloses that the instructions were in accordance with what the Supreme Court said should be charged on this subject in the case of Bush v. State, 109 Ga. 126, 34 S. E. 298. 8. One of the grounds of the motion presents the contention that the testimony of the defendant's witnesses was uncontradicted, and that the jury was bound to give weight to this testimony. The credibility of the witnesses is exclusively for the jury. In this

case the testimony of these witnesses was contradicted in many material respects, and an effort was made to impeach them by previous contradictory statements, yet we feel sure that the jury did give weight to their testimony; otherwise, the verdict should have been for murder, not for voluntary manslaughter.

9. The last ground is upon newly discovered testimony. The showing in this respect did not come up to the rule. Besides, it was mainly impeaching in its character.

10. Though we have some doubt of the defendant's guilt, yet after a careful and painstaking study of the record we find no reversible error: and the evidence is sufficient to support the verdict, which is approved by an honest and conscientious trial judge. Judgment affirmed.

KINARD v. STATE. (No. 172.) (Court of Appeals of Georgia. Feb. 5, 1907.) 1. FALSE PRETENSES-PROSECUTION-ACCUSA

TION-SUFFICIENCY.

The accusation was sufficient, as against the demurrers of the defendant.

2. JURY-CHALLENGE-GROUNDS OF - SERVICE AT PRECEDING TERM.

It is good ground of challenge to a juror in a city court, if the objection be timely made, that such juror served upon the jury in the same court at the next preceding term. 3. FALSE PRETENSES DENCE-ADMISSIBILITY.

PROSECUTION

- EVI

Upon the trial of a person charged with cheating and swindling by making false representations as to the ownership of property, claim affidavits, bonds. etc., filed by third persons to a levy upon certain property as the property of the defendant, are not admissible in evidence.

4. CRIMINAL LAW BEST EVIDENCE - CERTIFIED COPIES OF RECORDED INSTRUMENTS.

Certified copies of duly recorded instruments shown to be in the possession of the defendant are admissible in evidence against him, in a criminal case, as against the objection that the original is the highest evidence, unless he voluntarily offers to produce the originals. Farmer v. State, 28 S. E. 26, 100 Ga. 41.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 887, 888; vol. 20, Evidence, §§ 638, 642, 671.]

The evidence in this case is, as a matter of law, insufficient to sustain the verdict. (Syllabus by the Court.)

Error from Superior Court, Worth County; Spence, Judge.

C. L. Kinard was convicted in a city court of cheating and swindling. On certiorari the conviction was sustained, and defendant brings error. Reversed.

C. L. Kinard was tried in the city court of Sylvester before Judge Park. The accusation (founded upon the affidavit of G. C. Ford and J. O. Holloman, to the best of their knowledge and belief) alleged that C. L. Kinard, on February 8, 1904, falsely and fraudulently represented to Ford & Holloman that he had rented land enough for 12 plows

to evidence concerning a mortgage on mules, made in 1903, by the accused to Sam Farkas. Another objection that was overruled was to the introduction of claim affidavits and bonds interposed by J. F. Kinard, T. M. Wilder, and C. W. Hill to the levy of the mortgage fi. fa., before mentioned, on certain mules; the ground of objection being that the evidence was irrelevant. The testimony shows that in 1904 the accused had with the Sylvester Banking Company notes to the amount of $1,800 or $2,000, though in February they had been placed in the hands of an attorney for collection. There were $2.300 worth of them at first, but the bank had collected some of them. They had been pledged to the bank in 1903, but this pledge had been released by substitution of securities. Most of these notes stood in the name of J. F. Kinard & Sons, but upon a dissolution of the partnership on distribution of assets these notes had been given to the accused. At the First National Bank of Sylvester he had between $1,000 and $2,000 worth of similar notes. It appeared from the testimony that he had about 18 mules in February, 1904; but it did not appear that any of the mortgaged mules, already mentioned, were included in this number. He had been engaged during that season in buying and selling mules.

Further objection was made to the admission of the following evidence, on the ground that it was irrelevant and immaterial: The sheriff testified, as to his efforts to find the mules described in the mortgage fi. fa. already mentioned, that he found 4 of the mules at T. M. Wilder's place and 1 at G. F. Kinard's place, but his further search did not find any. An officer of the Sylvester Banking Company testified that the consolidated note of J. F., G. F., and C. L. Kinard, held by that bank, on February 8, 1904, was for $4,048.36. J. F. Kinard testified that he paid at least $3,000 of the note made to the Sylvester Banking Company with his own money: and in answer to the question whether the defendant was worth $4.000 on February 8, 1904, he answered: "If he had it, I did not know where it was at."

Payton & Hay, for plaintiff in error. W. E. Wooten, Sol. Gen., and J. H. Tipton, for the State.

POWELL, J. Judgment reversed.

MAHAN v. STATE. (No. 253.) (Court of Appeals of Georgia. March 28, 1907.) 1. CRIMINAL LAW-BEST AND SECONDARY EVIDENCE.

Where the original mortgage was in the possession of the defendant in a criminal case, a certified copy of the same, made from the record, is admissible in evidence against him, as against the objection that the original is the highest evidence, unless he voluntarily offers to produce the

original. Kinard v. State, 58 S. E. 263, 1 Ga. App. 146.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 887, 888.]

2. APPEAL-REVIEW.

There was some evidence to support the verdict; and, as the trial court was satisfied therewith, this court cannot disturb the judgment refusing a new trial, where no error of law was committed.

(Syllabus by the Court.)

Error from City Court of Floyd County; Hamilton, Judge.

One Mahan was convicted of crime, and Affirmed. brings error.

George A. H. Harris & Son, for plaintiff in error. W. H. Ennis, Sol. Gen., for the State. HILL, C. J. Judgment affirmed.

If the criminality of an act depends upon the place where it is committed, the allegation of place is material; and variance between the allegation and the proof is fatal.

(a) Proof that a road was commonly and largely used by the general public for a number of years, without more, will not support an allegation that such was a "public" highway, or a "public" road.

(b) The words "public highway" denote a generic term. The words "a public road," when used in an indictment based upon the act of 1905 (Acts 1905, p. 114), are descriptive of a species whose identity and characteristics are fixed by law, and are material; and the allegation must be sustained by proof.

[Ed. Note. For cases in point, see Cent. Dig. vol. 27, Indictment and Information, §§ 544547.]

3. DRUNKARDS-INTOXICATION ON HIGHWAYS -HIGHWAY AND ROAD DISTINGUISHED.

The terms "public highway" and "public road" are not synonymous.

(a) The word "road" refers to the piece or strip of land taken. "Way," in legal parlance, merely denotes an easement, and that the land has been subjected to servitude.

(b) "Highway" is also a generic term, which includes other uses besides the right of ordinary locomotion over land which has been subjected to public use.

4. HIGHWAYS-ESTABLISHMENT-DEDICATION. A road can be proved to be a public roadi. e., in use as a public highway-in four ways. A public road is created in four ways: (1) By a legislative enactment; (2) by action of the proper county authorities; (3) by dedication; (4) by prescription.