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presumption is not overcome except by the strongest proof.” There is a presumption that every officer does his duty, and every official entry is supposed to be the act of such officer, yet this is a rebuttable presumption and may be overcome by proof; and, while it is true that an officer's return should not be lightly set aside, yet it would be improper for the court to instruct the jury that the presumption of verity which the entry imported should prevail unless overcome by the strongest proof. Such an instruction is equivalent to an expression by the court as to quantum of evidence necessary to overcome a rebuttable presumption. For this reason the request was properly refused. Judgment on the main bill of exceptions reversed, on the cross-bill affirmed. All the Justices concur.
The accused was charged with the offense of murder. He made a motion to continue the case. The showing for the continuance was made in the name of counsel appointed by the court to defend the accused. In the motion it was stated that Messrs. G. H. Howard and J. L. Kent had been appointed as counsel for the accused late Monday afternoon; that the case was called for trial Tuesday, and that they had not had sufficient time to prepare the case for trial or to confer with the witnesses; that the indictment was not returnod until Monday afternoon, and that the accused was not arrested until Saturday morning preceding the convening of the court; that from investigation made the evidence would develop that the deceased was killed at a negro party, where more than 75 persons had assembled; that the killing occurred at night, outside the house, and that many shots were fired by different parties, and that counsel did not know, and could not, during the present session of court, interview those who were present, to ascertain who saw the shooting; that many saw
it, and, while all of the witnesses were not known, they will swear, if time is given to confer with them to ascertain who they are, that the accused did not fire the fatal shot; that it was impossible for them, under the circumstances, to do justice to their client, or to see that he had a fair trial, such as is guaranteed under the Constitution; that many of the witnesses the accused did not know, but according to the best of his information some of them were living in the county adjoining that in which the indictment was pending; that, when counsel were appointed, they at once issued subpoenas for a large number of witnesses, the names of whom were furnished by the accused, some of whom lived in other counties, and it would be impossible for the officers to summon these witnesses during the present term of court; that, if such witnesses were produced, the accused would be able to prove that the killing was not done by him, but by another; that counsel used all diligence possible under the circumstances; and that the motion was not made for delay, but in order to secure the testimony of these witnesses at the next term. The court overruled the motion to continue, appointed a bailiff to assist counsel in procuring the witnesses desired, and passed the case until Thursday afternoon at 2 o'clock. Error is assigned upon this ruling. When the case, was called on Thursday afternoon, another motion was made to continue the case, upon the grounds stated in the former motion, and upon the additional facts appearing in the statement made to the court by Mr. Kent, of counsel for the accused. The Substance of Mr. Kent's statement was that the bailiff had been endeavoring to find the witnesses, but was unable to do so; that they had not been able to obtain the witnesses for him; that the court had also appointed other counsel besides himself and Mr. Howard, and these had been excused by the court, and that the case should not be pressed to trial until other counsel were appointed in their place; that a number of the witnesses to the transaction lived in Johnson, Jefferson, and Washington counties, and possibly other counties in the state; that counsel had been unable to obtain these witnesses so as to interview them: that some of the witnessos for whom subpoenas had been issued the officer had not been able to find; that the bailiff made every effort to get these witnesses, but now gave the infor. mation that they were not there; that counsel had learned that one of the witnesses possibly did not get the subpoena, and that one lived in Jefferson county very near to the scene of the occurrence; and the accused informed counsel that he could prove by this witness that another man fired the fatal shot; that counsel did not know whether this witness could be brought at that term of the court, but that he had not been brought. The court overruled the motion to continue, and this ruling is assigned as error. The trial resulted
COBB, P. J. (after stating the facts). 1. Motions for continuance are addressed to the sound legal discretion of the court. This is the rule in all cases, including those where the accused is charged with a capital felony. The Constitution guarantees to every one charged with a crime the privilege and benefit of counsel. This constitutional guaranty amounts to nothing, unless the counsel selected by the accused or appointed by the court are given a reasonable time to ascertain what is the character of the case that the accused is called upon to defend. There is no rule fixing what is a reasonable time for such preparation. What is a reasonable time depends upon the general character of the case and the questions of law and fact involved therein. In the present case it appears from the showing made for a continuance that the only question involved Was: Who fired the fatal shot? That there was a homicide, and that this homicide was murder, seems not to have been an open question. The accused was present at the scene of the killing. It is true that there was a large number present. It does not appear that the accused was among strangers. It is manifest, from the terms of the showing, that he knew a number of those present, if not all of them. He furnished to his counsel the names of a number of those who were present, and subpoenas were issued for them, but, notwithstanding this, there does not appear in the showing for a (Ontinuance the name of a single witness whose presence at the trial was desired. The showing upon which it is based is very loose and irregular, being, in substance, that there were a number of persons present, and that counsel were not in a position to do the accused justice until they could have an 0000rtunity to find out who of those present were witnesses to the homicide. In one portion of the showing it is stated that there was a witness living in another county who Would testify that the accused did not fire the fatal shot; but the name of this witness Was not disclosed to the court. If it had been the court would probably have exercised its discretion and postponed the trial until a later date in the term, in order to have this witness brought into court. While it appears from the showing that counsel Were not in a position to know who were the witnesses by whom the accused could “stablish that the homicide was committed o another, there is nothing in the showing "indicate why it was that the accused him*If could not have given to counsel the
names of those persons who actually witnessed the homicide. When the showing is considered in its entirety, there was no abuse of discretion shown. See, in this connection, Hardy v. State, 117 Ga. 40, 43 S. E. 434; Thompson v. State, 24 Ga. 297; Bradley v. State, 128 Ga. —, 57 S. E. 237. That portion of the showing which complains that other counsel who had been appointed to assist in the defense of the accused were excused, and no others had been appointed to take their place, is not referred to in the brief of counsel, and this point will be treated as abandoned.
2. The motion for a new trial contains no other special grounds than the ones dealt with in the preceding portion of this opinion. The evidence amply authorized the verdict, and we see no reason for reversing the judgment.
Judgment affirmed. All the Justices concur.
THRELKELD v. STATE. (Supreme Court of Georgia. July 11, 1907.)
1. CRIMINAL LAW — WRIT OF ERROR-ESTOPPEL to AII.EGE ERROR. When, in the trial of a murder case, the judge requests counsel to define their positions as to the issues involved, and both counsel for the state and for the accused reply that the only issue is the question as to whether the accused is guilty of murder or not guilty of any offense, and that voluntary manslaughter is not involved, if the court submits the issue to the jury as thus stated, the accused cannot, after conviction of murder, founded upon sufficient evidence, complain that the court erred in failing to charge the law of voluntary manslaughter. [Ed. Note:-For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 3007–3010.]
2. Homs ICIDE—TRIAL–INSTRUCTIONS. The extracts from the charge of the court
upon which error is assigned, are not erroneous
for any reason assigned.
3. WRIT of ERROR – REVIEw – NEW TRIAL – NEw LY DISCOVERED Evi DENCE. The evidence authorized the verdict. The newly discovered evidence is not of such char. acter as would probably produce a different result; and the uiscretion of the judge, exer. cised in overruling the motion for new trial will not be interfered with. >
(Syllabus by the Court.)
Error from Superior Court, Grady County; T. A. Parker, Judge.
Newton Threlkeld was convicted of murder, and he brings error. Affirmed.
W. M. Hammond and J. W. Walters, for plaintiff in error. W. E. Thomas, Sol. Gen. John C. Hart, Atty. Gen., and s. A. Rodden. berg, for the State.
ATKINSON, J. Newton Threlkeld was indicted for murder, and convicted. In his motion for new trial complaint is made that the court omitted to instruct the jury upon the law of voluntary manslaughter, although the evidence showed that offense to be involved. In his order approving the grounds of the motion the judge certifies that: “During the progress of said case, at the opening of the argument, the court requested counsel to define their positions as to the issues involved in said case. Whereupon counsel for the defendant and also counsel for the state stated in open court that the only issue was the question as to whether the defendant was guilty of murder or not guilty of any offense; that voluntary manslaughter was not involved in the case. The court agreed with counsel in this position, and for this reason the law of voluntary manslaughter was not given in charge.” This certificate is conclusive as to what transpired at the time. If voluntary manslaughter was involved, it was the duty of the court to charge with respect thereto; but, if the court's omission so to charge was brought about by the conduct of the defendant, it would not lie in the mouth of the defendant afterwards to complain. The maxim, “Consensus tollit errorem,” applies in criminal cases as well as in civil cases. Howard V. State, 115 Ga. 244, 41 S. E. 654. See, also, Caesar v. State, 127 Ga. 711, 57 S. E. 66; Steed v. State, 123 Ga. 569, and citations, 51 S. E. 627; Coney v. State, 90 Ga. 140, 15 S. E. 746; Griffin v. State, 113 Ga. 279, 38 S. E. 844. While a judge is not bound to commit an error simply because he is so requested, yet, if an error is committed as the result of a request on the part of the accused, he cannot thereafter complain. Able counsel for the defense no doubt believed that it was to the interest of their client that the law of voluntary manslaughter should not be given in charge to the jury, and thereupon took the bold position that the defendant was guilty of murder or of no offense. By taking that position in responding to the inquiry by the court they waived whatever right they may have had to a charge upon the law of voluntary manslaughter. After making such a waiver, if the evidence authorizes a verdict for murder and the defendant is convicted of that offense, a new trial should not be ordered simply because the court did not instruct the jury upon the law governing the less offense of voluntary manslaughter. We do not deem it necessary to elaborate upon the rulings expressed in the second and third headnotes. Judgment affirmed. All the Justices conCur.
PAYTON et al. v. McPHAUL. (Supreme Court of Georgia. June 14, 1907.)
1. MoRTGAGEs—DEscription—SUFFICIENCY. A mortgage which describes the property mortgaged as “100 acres in the southeast corner” of a given lot of land, which contains 490 acres and is in the form of a square, is sufficient as a description. The corner of the lot is to be taken as a base point from which two sides of the tract of land conveyed shall extend an equal
distance; so as to inclose by parallel lines the quantity conveyed.
so Note.—For cases in point, see Cent. Dig. vol. 35, Mortgages, §§ 125–132.]
2. SAME–PLACE OF SALE. The power of sale in a mortgage authorized a sale “before the courthouse door in the town of Isabella, Ga.” Subsequently to the execution of the mortgage the county site of the county was removed from the town of Isabella to Sylvester. Held, that a sale before the courthouse door in Sylvester was a valid execution of the power. [Ed. Note.—For cases in point, see Cent. Dig. vol. 35, Mortgages, § 1048.]
3. SAME – FORECLOSURE UNDER POWER OF SALE—CoN vey ANCE TO PURCHASER. A deed by a mortgagee, signed in his own name, but purporting to be in the execution of the power of sale in the mortgage, is a good execution of the power, when the recitals of the deed are sufficient to indicate that it was the intention of the grantor to convey in behalf of the mortgagor, and not in his own behalf. [Ed. Note.—For cases in point, see Cent. Dig. vol. 35, Mortgages, §§ 1118, 1118.1%.] 4. SAME—PURCHASE BY MORTGAGEE—VALIDITY. The general rule is that the mortgagee cannot be a purchaser at his own sale under the power in the o; but a purchase by him is not absolutely void, but voidable only at the instance of the mortgagor or the owner of the equity of redemption. A purchaser at an execution sale, had subsequently to the sale under the power, the execution being based on a judgment rendered after the execution and record of the mortgage, will not be allowed to impeach the purchase by the mortgagee at his own sale. [Ed. Note.—For cases in point, see Cent. Dig. vol. 35, Mortgages, §§ o 5. USURY — EFFECT OF POWER OF SALE IN MORTGAGE. The power of sale in a mortgage is not rendered void by reason of the fact that the debt sought to be secured is infected with usury. A sale under the power may be had for the purpose of collecting the principal and lawful interest on the debt. [Ed. Note.—For cases in point, see Cent. Dig. vol. 47, Usury, §§ 158–160.] 6. SAME. No sufficient reason has been shown for reversing the judgment complained of.
(Syllabus by the Court.)
Error from Superior Court, Worth County; W. N. Spence, Judge.
Action by John G. McPhaul against Claude Payton and others. Judgment for plaintiff, and defendants bring error. Affirmed.
John G. McPhaul filed a petition against Claude Payton, C. E. Hay, and J. D. Bridges, alleging that on July 7, 1904, W. D. Collier executed and delivered to the Bank of Poulan a mortgage to secure a debt of $490.20, due October 15, 1904, upon property described as follows: “100 acres in the Southeast COTIner of lot No. 307 in the 7th district of Worth county, Ga.” The mortgage contained the following provision: “Should this debt not be paid at maturity the said Bank of Poulan, Poulan, Ga., or their assigns are hereby authorized to advertise and sell the real property hereby mortgaged, before the court-house door in the town of Isabella, Ga., four weeks' notice of
such sale being made by the publication in
a newspaper published in the town of Syl-
tion, granted a temporary restraining order, and set the case down for a hearing. At the hearing the defendants showed as cause against the granting of the injunction a demurrer and an answer. The demurrer set up that the allegations of the petition were not sufficient to authorize any of the relief prayed for; that it did not appear from the petition that there was any sum due on the mortgage at the time the power of sale was exercised, such sale taking place nearly two years after the maturity of the debt; that it appears from the facts stated in the petition that the legal title to the property is in the defendants; that the deed to the plaintiff was not in harmony with the power; that it appears from the copy of the deed from the Pank of Poulan to McPhaul, attached to the petition as an exhibit, that McPhaul is the president of the Bank of Poulan, and that, therefore, he was acquainted with all of the facts in reference to the deed, and it was incumbent upon him to show that the debt was unpaid and that there was no usury in it; and that the description of the land in the mortgage is so indefinite that no lien was created by the execution thereof. In the answer it was averred that the description in the mortgage was too indefinite, and that McPhaul was active manager of the Bank of Poulan and the largest Stockholder, and he was not authorized to purchase at a sale had by the bank, and that the bank had no authority to sell the property at Sylvester, the power only authorizing a sale at Isabella; that McPhaul has not complied with his bid and paid the amount thereof; that the debt which the mortgage was given to secure was infected with usury, and the power of sale in the mortgage was therefore void; that the judgments in favor of Hornie & Co. were the only valid liens on the property, and the title to the property is therefore in the defendants. The answer denied that McPhaul was in possession, and set up that the defendants were in possession, and that Anglin, who was the tenant of Collier, had attorned to them as landlord. It is admitted that it was the intention of the defendants to erect a dwelling house upon the land at . an early date, and that, as Soon as the injunction is dissolved, it is their desire to continue to improve the land which is theirs. The answer concludes with a prayer that the plaintiff be enjoined from interfering with the right of possession of the defendants and their enjoyment of the property, and that the deed to the plaintiff be delivered up and canceled. The judge, after hearing the evidence, passed an order granting the injunction prayed for by the plaintiff, and the defendants excepted.
Payton & Hay and T. R. Perry, for plaintiffs in error. J. B. Williamson and Polhill & Foy, for defendant in error.
COBB, P. J. (after stating the facts). 1. The court will take judicial notice of the
fact that land lot No. 307, in che Seventh district of Worth county, Ga., contains 490 acres and is in the form of a square. Huxford v. Sou. Pine Co., 124 Ga. 182 (3), 52 S. E. 439. It is claimed that the description of the property mortgaged is so indefinite that no lien was created by the execution of the mortgage. The description is: “100 acres in the Southeast corner of land lot No. 307 in the 7th district of Worth county, Ga.” A deed or mortgage will not be held void for an insufficient description of the property if, by any reasonable construction of the terms of the instrument, the description therein used can be held to inclose or embrace a tract of land. If three sides of a tract are given, and there is nothing to indicate that the line not given is otherwise than a straight line, the description will be completed by supplying a straight line, and thus inclosing a tract; this being presumed to be the intention of the parties. Ray v. Pease, 95 Ga. 153 (1), 22 S. E. 190. Persons do not execute deeds and mortgages except for the purpose of conveying or creating a lien upon the property, and the intention to convey or create a lien will never be held to have been futile on account of the description of the property, when, by any reasonable construction, the instrument may be upheld. If two sides of a tract of land at right angles to each other are given, and it is clear from the instrument that it was the intention of the parties that the land conveyed should be in the shape of a square, the other two sides will be supplied by construction by drawing lines parallel with those which are given. In Walsh v. Ringer, 2 Ohio, 327, 15 Am. Dec. 555, the deed described the land as “70 acres of land being and lying in the southwest corner of the southwest quarter section of section 14.” In the opinion it was said: “The general position of the land conveyed Is given with sufficient certainty. It is in the southwest corner. According to the rules of decision, both in this state and in Kentu ky, that corner is a base point from which two sides of the land conveyed shall extend an equal distance, so as to include by parallel lines the quantity conveyed. From this point the section lines extend north and east so as to fix the boundary west and south, the east and north boundaries only are to be established by construction, and the rule referred to gives them with sufficient certainty.” See, also, 2 Devlin on Deeds (2d Ed.) $ 1013. The lot out of which the mortgage is to be taken is a square. The property intended to be mortgaged is in the corner of the square, and contains 100 acres. The number of acres intended to be mortgaged cannot be more nearly or accurately described to be in the corner of the lot than by taking the lines of the lot forming the corner referred to, and drawing parallel lines from each of such lines at such a point that the four lines would embrace a square con
taining 100 acres. It can be reasonably inferred that this was the intention of the parties, and this construction will be placed upon the terms used. 2. At the time the mortgage was executed the county site of Worth county was the town of Isabella. At the time that the power of sale was exercised the county site was at the city of Sylvester. The power of sale in a mortgage must be construed like other parts of the contract, so as to effectuate the intention of the parties; and this is true as to the place of sale, as well as in regard to the other stipulations in the power. There are numerous cases dealing with the question as to the validity of sales where, for some reason, the place of sale, as indicated by the strict terms of the power, was not chosen as the place of sale on account of events transpiring between the date of the execution of the instrument and the date that the power was exercised. When the power provides that the sale shall be at the courthouse door, the rebuilding, removal, destruction, or temporary abandonment of the building raises a doubt as to where the sale should be had under the power. The general rule is that, where the door of the Courthouse is designated as the place of sale, the building is referred to in its character as an official and public building, and that, therefore, the place of sale is the courthouse at the time of the foreclosure, rather than the place used for that purpose at the time the mortgage is executed. This has been held even where the courthouse was temporarily abandoned, as well as in cases where the building was destroyed or permanently abandoned. The decisions, however, are by no means in harmony. No general rule seems to have been laid down fixing the place of sale when there has been a new location of the courthouse. In some cases the sale at the old situs has been held good, and in others a sale at the door of the new structure has been upheld. 28 Am. & Eng. Enc. of Law (2d Ed.) S04; 2 Jones on Mort. (6th Ed.) $ 1848. In Napton v. Hurt, 70 Mo. 407, the power was to sell at the courthouse in Kansas City, and after the execution of the mortgage the courthouse was, by law, removed to and established in a dif: ferent place in the same city; and it was held that the sale must be had at the new place, and not at the old. In Williams v. Pouns, 48 Tex. 141, it was held that a trust deed requiring the sale to be made at the courthouse of the county is properly executed by a sale at the courthouse of a newly organized county which includes the land sold. It will be seen, from an examination of these authorities, that the court is in each instance endeavoring to ascertain the inten: tion of the parties and carry it into effect as to the place of sale, and that wherever there has been a change of the location of the courthouse between the date of the exe"