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son or property or on one's own premises, it is incumbent upon the state to negative each one of these things by proof, in order to make out the offense. In delivering the opinion of the court in Rumph v. State, 119 Ga. 123, 45 S. E. 1003, Justice Cobb says: “The line is sometimes very closely marked between what exceptions need be proved and what need not. It is safe to say, however, that whenever the exception constitutes a part of the offense itself, and not merely an exception to a general offense previously defined, it is necessary to allege and prove that the case is not within the exception; or, to state it differently, whenever a statute makes penal an act when committed by a particular class of persons, or when committed under particular circumstances, it must appear that the person accused was within the particular class or committed the act under the particular circumstances.” The precise rule which is applicable to accusations under section 508 is laid down in Elkins v. State, 13 Ga. 435: “Where a statute contains provisos and exceptions in distinct clauses, it is not necessary to state in the indictment that the defendant does not come within the exceptions or to negative the provisos which it contains; but, on the contrary, if the exceptions themselves are stated in the enacting clause, it will be necessary to negative them, in order that a description of the crime may, in all respects, correspond with the statute.” The decisions in Conyers v. State, 50 Ga. 105, 15 Am. Rep. 686; Newman v. State, 63 Ga. 533; and Isom v. State, 83 Ga. 379, 9 S. E. 1051, are to the same effect. So that we think that the position assumed by the plaintiff in error is correct as a matter of law.

On the other hand, we think that the allegations and evidence fully sustain the conviction of the plaintiff in error when applied to the rule we have stated. The state was obliged to show that the defendant shot a pistol or gun, as charged, within 50 yards of the public highway named in the indictment, between dark and daylight; and in order to show that it was willfully and wantonly done the state was further obliged to prove that such shooting was not in defense of person or property, and that it was not on the defendant's land. There were a number of witnesses introduced, and the testimony of several of them is confused, unsatisfactory, and insufficient. But the jury was authorized to convict, if they had had no other testimony, if they believed the evidence of Alonzo Bivins; and they had the right to disregard all other witnesses and rest their verdict on his testimony alone. He testified that he saw the defendant shoot five times at John Coleman's house. The defendant stood in the public road and shot five times just as fast as he could load and unload his breech-loader. It was between dark and daylight, in Sumter county, Ga. The witness swore, further, that the moon was shining, and that he could see the defendant

plainly, and knew that it was he who did the shooting. The witness says, further, that the only thing that was going on at that time was some fussing and loud talking in Cole. man's house, where the dancing was going on. The state proved by this testimony that the shooting was not on the defendant's land, by proving that Ferguson fired in the public road; and, of course, the public road is not his land. It proved that the shooting was not in self-defense or in defense of his property at the time of the shooting, by proving that nothing was being done to Ferguson at the time of the shooting. This showed conclusively that, whether there had been pistol shots there that night or not, Ferguson's shooting was not necessary for his defense. According to Bivins' testimony, when taken with the testimony of some of the other wit. nesses, the defendant willfully and wantonly fired his gun on land belonging to the public, and without any necessity for defending himself, his brother, or his belongings. The plaintiff in error insists that a number

of witnesses swore that Bivins was in a

house and could not see, and therefore his testimony was false. This was a matter entirely for the jury. It is for them to say whether Bivins or the witnesses who contradicted him were impeached, and by their verdict they sustain Bivins. In the brief of State's counsel it is insisted that there was an error in the approved brief of evidence. Of course we cannot consider this statement. The brief of evidence as approved by the trial judge is taken to be true to its very letter. The plaintiff in error further insists that he is entitled to a new trial upon the ground of newly discovered evidence. We have of: ten marveled at the power of a verdict of guilty in quickening the thirst for an investigation and the faculty of discovery. But, even if the newly discovered evidence submitted in this case were produced before a jury, it could not produce a different result. The testimony of one of the witnesses is to the effect that he heard some unknown man say to the Mancy boys that he tried his best to get one of the Fergusons; and the affidavit of Simpkins is simply cumulative of testimony, already adduced, that there were pistol shots, both preceding and following the report of the shotgun. If there is anything in this testimony it would tend only to set up the fact that the defendant fired in his own defense. And this testimony would be impeaching, not only the state's witnesses, but his own witnesses as well: and it does seem to us that if a new trial is not to be granted upon extraordinary grounds when the newly discovered evidence merely impeaches the witnesses of the Opposite party, it should much the less be granted when the newly discovered evidence would impeach one's own witnesses, for whose ve. racity he vouches. The only purpose of the newly discovered evidence is to establish self.

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defense in firing the gun. The defendant and his witnesses say he did not fire at all. Motions for new trial upon the extraordinary ground of newly discovered evidence are not favored. If not regarded with suspicion, they should at least be granted with great caution. They should only be granted to avoid palpable injustice, and in order that the judgment set aside may perhaps be replaced by a different finding. We think there was no error in refusing to set aside the verdict and judgment in this case. Judgment affirmed.

SOUTHERN RY. CO. v. SCHLITTLER. (No. 10.) (Court of Appeals of Georgia. Jan. 11, 1907.)

1. CourTS – Court of APPEALs — CoNSTITUTIONAL QUESTIONs—CERTIFICATION TO SUPREME COURT. Where, in a pending case, a question is raised as to the constitutionality of an act of the General Assembly of this state, this court will examine the record and ascertain whether a decision of the constitutional question is necessary to the determination of the case. If we find that the decision of such a question is necessary to the determination of the case, we will so certify to the Supreme Court and abide their instruction in the matter; but, where the contrary appears, we will proceed to decide the case without so certifying. 2 CONSTITUTIONAL LAw—VALIDITY of STATUTE–NECESSITY OF DETERMINATION. Where suit is brought for the recovery of an amount for which the defendant would be liable, even in the absence of the statute which be seeks to set aside as being contrary to the Constitution of the United States, as well as for an additional amount as the penalty authorized by such statute, and the trial court awards judgment in favor of the plaintiff only for the sum which he would be authorized to recover in the absence of such a statute, upon a bill of exceptions brought to this court by the defendant, complaining of the judgment and attacking the constitutionality of such a statute, a determination of such constitutional question is neither necessary nor proper. 3. CARRIERs—CARRIAGE of FREIGHT-OvehCHARGE—LIABILITY. Independently of the statute of 18S9, embodied in Civ. Code 1895, § 2316, a carrier is liable to suit by a shipper for the recovery of an overcharge of freight which such shipper has paid under protest in order to obtain his £00ds, and which the carrier refused to repay On demand. (Ed. Note—For cases in point, see Cent. Dig. Vol. 9, Carriers, $ 915.]

4. SAME-PEBsons ENTITLED To REcover, The recovery in this case is authorized by the evidence.

(Syllabus by the Court.)

Error from City Court of Baxley; Thomas, Judge.

Action by one Schlittler against the Southern Railway Company. From a judgment for plaintiff, defendant brings error. Affirmed,

De Lacy & Bishop, for plaintiff in error.

POW E L L. J. Schlittler brought suit against the railway company for the recov

ery of an overcharge of freight which he had paid to it, under protest, upon the shipment of a car load of horses from Louisville, Ky., to Baxley, Ga.; the shipment not being made by Schlittler personally, but by one Baxley, who, it was alleged and proved, was the agent of Schlittler. He also alleged the demand required by Civ. Code 1895, § 2316, and prayed judgment for the penalty provided by that statute for the failure of the carrier to repay the overcharge. By both plea and demurrer the defendant set up that the section of the Code referred to, as applied to this interstate shipment, is violative of the commerce clause of the Constitution of the United States. The demurrer, which was oral and general, and which went to the whole petition, was overruled by the court; but upon the conclusion of the testimony the judge, who heard the case without the intervention of a jury, rendered a finding that the plaintiff was entitled to recover $30.95 overcharge and the interest thereon, but that he was not entitled to recover the statutory penalty. The defendant excepted, and insists here, in addition to the general ground that the verdict is contrary to the law and the evidence, upon a reversal of the judgment on the ground that the Code section (2316) is unconstitutional, and asks this court to certify the question of the unconstitutionality of the statute to the Supreme Court for their instructions. 1. The constitutional amendment by which this court came into existence provides: “Where, in a case pending in the Court of Appeals, a question is raised as to the construction of a provision of the Constitution of this state, or of the United States, or as to the constitutionality of an act of the General Assembly of this state, and a decision of the question is necessary to the determination of the case, the Court of Appeals shall so certify to the Supreme Court: and thereupon a transcript of the record shall be transmitted to the Supreme Court, which after having afforded the parties an opportunity to be heard thereon, shall instruct the Court of Appeals on the question so certified, and the Court of Appeals shall be bound by the instruction so given.” Acts 1906, p. 26. Since the duty of certifying that the decision of the constitutional question is necessary to the determination of the case is placed upon the Court of Appeals, the jurisdiction to decide when such a necessity exists obviously rests with this court, Hence, when such a question is raised, we will examine the record, and, if we find that a decision of a constitutional question is necessarily involved, we will so certify to the Supreme Court; otherwise, we will not. This doctrine is in keeping with the general rule, obtaining in the courts, that it is not proper to examine into the constitutionality of an act of the General Assembly unless it is found necessary to do so in order to determine the case as made.


2, 3. Manifestly the constitutionality of Civ. Code 1895, § 2316, so far as it authorizes a recovery of a penalty for the failure to repay the overcharge within 30 days after Written demand, is not involved in the case as it appears in this court; for no judgment has been rendered against the complaining party for any such penalty. But it is insisted that the constitutionality of the statute may be brought into question, for that it provides that the person paying the overcharge may sue for the repayment of the overcharge as well as for the penalty, and that the plaintiff's cause of action, as to the sum which he did recover, is also based solely upon this statute. We are not prepared to assent to this proposition. While the allegations and prayers of the petition are such as to authorize a recovery under the terms of that statute, still they are entirely consistent (except so far as the penalty is concerned) with what would be required in a suit under the law as it stands independently of the statute in question. In fact, the allegations that the payment was made under protest and that the carrier refused to deliver him his property except upon his paying the overcharge seem to indicate clearly that the plaintiff had in mind the general law allowing a recovery in such cases; for such allegations are entirely unnecessary under Civ. Code 1895, § 2313. See, in this connection, Civ. Code 1895, $ 3723. The plaintiff's recovery being authorized by common law, as well as by the statute in question, the constitutionality or unconstitutionality of the latter becomes absolutely immaterial. 4. It is insisted that the finding against the defendant is without evidence to support it, because the contract of shipment was not made with Schlittler, but with Baxley. It was alleged in the petition, and proved, that Baxley was Schlittler's agent. The defendant's agent, in presenting the bill for the freight, made it out against Schlittler, and collected the same, as well as the overcharge from him. This was sufficient. Central of Georgia Ry. Co. v. James, 117 Ga. 832, 45 S. E. 223. Judgment affirmed.


PERRY v. STATE. (No. 366.) (Court of Appeals of Georgia. March 28, 1907.)

1. MASTER AND SERVANT—RENTING To CRoPPER OR EMPLOYE OF ANOTHER – INSTRUCTIONS. On the trial of a defendant for violating the act of August 7, 1903 (Acts 1903, p. 91), by specific acts set forth in the indictment, the judge did not err in giving the whole of said act in his charge to the jury, although the general words with which the act concludes, and which were intended to embrace all other violations of it, did not apply to the case on trial. Especially is this true when it, was not contended that the defendant was guilty, except in the manner charged in the indictuent

2. SAME–EVIDENCE. No error of law was committed, and the verdict was fully warranted by the evidence.

(Syllabus by the Court.)

Error from Superior Court, Tift County; Mitchell, Judge.

One Perry was convicted of renting land to a cropper or employé of another, and brings error. Affirmed.

T. R. Perry and C. C. Hall, for plaintiff in error. W. T. Thomas, Sol. Gen., and W. E. Talley, for the State.

HILL, C. J. Judgment affirmed.

POWELL, J., disqualified.

MULHERIN v. PORTER et al. (No. 56.) (Court of Appeals of Georgia. Feb. 6, 1907)

1. LANDLORD AND TENANT – DISTRESS WABRANT—LEVY. Although a distress warrant cannot be lev: ied upon property which has already been seized under judicial process, such distress warrant may be placed in the hands of the levying offcer, and, upon a rule to distribute the fund, may assert its lien. [Ed. Note.—For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, $ 1094.] 2. MARSHALING ASSETS AND SECURITIESGENERAL RULE. The general rule, obtaining in the marshal. ing of assets and securities, that if one creditor, by virtue of a lien or other interest, can resort to two funds, and another creditor to only one of them, the former must seek satisfaction out of that fund which the latter cannot touch, is subject to the limitation that such marshaling must not be applied to the detriment of a third person with an equity equal to or greater than that of the creditor seeking to invoke the rule. Beneficiaries of a homestead have such an equity and interest in the homestead estate as to be within the protection of this limitation. [Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Marshaling Assets and Securities, i S.]

(Syllabus by the Court.)

Error from City Court of Richmond County; Eve, Judge.

Rule by one Mulherin to distribute a fund arising from an execution sale against Frank Harris. Porter and Eve intervene. Judgment for intervenors, and plaintiff brings ero ror. Affirmed.

F. W. Capers, for plaintiff in error. William H. Barrett and Joseph Ganahl, for defendants in error.

POWELL, J. The plaintiff in error, Mul. herin, brought a rule to distribute the fund arising from the sale of certain corn which had been levied upon and sold as the proper" ty of one Frank Harris under a common" law fi. fa. which Mulherin had obtained against him. In response to the rule, Porter and Eve intervened, and made it appear that the corn in question was subject to a lien in their favor for rent which was superior to Mulherin's judgment, and that distress

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warrants had been SWOrn out for this rent and had been placed in the sheriff's hands for the purpose of claiming the proceeds. In addition to these facts it was conceded upon the hearing that the defendant IHarris had applied for and obtained a homestead which did not include the property in question, also that he had other crops, which, though included in the homestead, were subject to the liens of Porter and Eve, but which could not be levied on by Mulherin's fl. fa., on actount of being exempt under the homestead. It was agreed upon the trial that these additional crops were sufficient to pay the rents. The trial court awarded the funds to Porter and Eve, and Mulherin excepted, alleging that the judgment was erroneous: “(1) BeCause the distress warrants were without lien On the fund in the hands of the sheriff, for the reason that they were proceeding to assert the special lien of the landlord upon the crop of the year, and this lien had not been perfected by levy. (2) Because, in addition to the corn levied upon by the sheriff, proceeds from the sale of which are in his hands, there was other produce grown on said premises for the same year, on which these distress warrants may be levied, sufficient to pay off said distress warrants, out of which the plaintiffs in distress warrants may realize their claim, and from levying upon which plaintiff in fi, fa. is debarred by the defendant's homestead; and it is an equitable principle that if two plaintiffs have liens on the same person, and one plaintiff may attach two funds, and the other but one, the plaintiff having the right to proceed against the two funds will be turned upon that fund Out of which the other plaintiff has no right to recovery.” 1. The corn, having been seized by the Officer under the common-law execution, was In judicial custody, and therefore was not subject to levy by virtue of the distress wartant. Fulghum v. Williams, 114 Ga. 643, 40 S. E. 695, 7 L. R. A. (N. S.) 1055, 88 Am. St. Rep. 48, and cases cited. Ordinarily the levy of a distress warrant is the apt and effectual means of asserting the landlord's len for rent; but in cases such as this, where a levy is not allowable, the lien may nevertheless follow the fund. “Where money is in the hands of an officer, he may pay it over to the plaintiff by whose process it was raisod, unless other claimants deposit their lien With him. Notice to retain, unaccompanied by a lien, is insufficient. Money raised by *gal process not being subject to levy and sale, the court in making distribution pro*ls upon equitable principles. All parties "tervening shall, by appropriate pleading, * forth the ground of their claim to the fund. All persons interested, who are noti*d in writing by the sheriff or movant of * Pendency of the rule, will be bound by the fogment of distribution.” Civ. Code 1895, **Tib. Hopkins v. Pedrick, 75 Ga. 706; Na.

tional Bank v. Exchange Bank, 110 Ga. 693. 36 S. E. 265 (2). 2. Upon a rule to distribute money the equitable doctrine of the marshaling of assets and securities is applicable. This rule, established upon ancient authority in courts of equity, has express recognition in several sections of our Code, notably sections 2691, 4002, and 4012. “The general rule is that if one creditor, by virtue of a lien or interest, can resort to two funds, and another to one of them only, the former must seek satisfaction out of that fund which the latter cannot touch.” Pom. Eq. Jur. § 1414. But this relief will not be given if it will prejudice the rights of third persons. Ga. Chem. Works v. Cartledge, 77 Ga. 547, 4 Am. St. Rep. 96; Green v. Ingram, 16 Ga. 164; Behn v. Young, 21 Ga. 207 (3); Craigmiles v. Gamble, 85 Ga. 439, 11 S. E. 838. “The doctrine of marshaling will not be applied so as to work an injustice to the debtor. Consequently it is generally held that it cannot be invoked to compel a creditor to resort to a homestead in the first instance. The Object of the exemption is to protect the debtor and his family. If a creditor without a lien were allowed to compel its application upon a prior claim, the right might be practically valueless.” Pom. Eq. Jur. § 869. The equity of the beneficiaries of a homestead is, under our Constitution and laws, superior to that of a creditor by ordinary judgment, where the right of homestead has not been Waived, or the homestead estate is not otherwise subject to the debt upon which such judgment is founded. Judgment affirmed


PRINCE, Sheriff, v. WALKER. (No. 121.) (Court of Appeals of Georgia. Feb. 21, 1907.)


Where the sheriff has levied a common-law fi. fa. upon a crop in the field, but neglects to sell the same, and is ruled by the plaintist in fi, fa. for his failure to make the money, it is not sufficient answer that subsequently to the lovy the landlord of the owner of the crop carried the crop away and appropriated it to the pay. ment of a lien due him, superior to that of the plaintiff in fi, fa. ... but, so far as the answer to such a rule denies that the crop was of the value alleged by the plaintiff in fi, fa., it is good, and should not be stricken.

(Syllabus by the Court.)

Error from City Court of Dublin; Burch, Judge.

Rule by one Walker against one Prince, sheriff, alleging that by failure to sell certain crops after levy on same he had been damaged to the amount of the debt. Rule absolute, and plaintiff brings error. Reversed,

W. C. Davis, for plaintiff in error. Ira

S. Chappell, for defendant in error.


POWELL, J. Prince, as sheriff of the city court of Dublin, levied a common-law fi. fa. in favor of Walker upon certain crops of the defendant in fi, fa. Subsequently, upon the sheriff's neglecting to sell the property, Walker brought rule, alleging that the crops levied on were amply sufficient to pay the fi. fa. in full, and that by the sheriff's failure to proceed with the levy he had been damaged in the amount of his debt. The sheriff answered, admitting the levy, but denying that the crops levied on were sufficient to have paid the fi. fa., and setting up additionally that after the levy the crops were removed from the field by the landlord of the defendant in fi, fa. and appropriated to pay the rent due the landlord for the use of the land on which the crops were raised, that it took all of said crops so levied on to pay the lien for rent, and that the landlord's lien was superior to plaintiff's fi. fa. The court struck the entire answer as being wholly insufficient in law, and gave rule absolute for the amount of plaintiff's fl. fa. The sheriff excepts.

So far as the answer of the sheriff denied that the crops were sufficient to pay the fi. fa., it presented a good defense. “Two things are necessary to fix the sheriff's liability by rule—contempt of court in not executing its process, and injury to the plaintiff.” Wheeler V. Thomas, 57 Ga. 163. See, also, Wilkin v. Am. Freehold Mortgage Co., 106 Ga. 182, 32 S. E. 135. It seems plain, therefore, that this portion of the answer should not have been stricken.

There is more difficulty as to the other excuse set up by the sheriff for not making the money—that after the levy the landlord took the crops and applied them to his superior lien. The sheriff contends that by showing this fact he demonstrates that no injury has resulted to the plaintiff in fi, fa.; and we must confess that the proposition strikes us with considerable force. However, after an examination of the authorities, we have concluded that this does not present any sufficient answer. The levying officer may show outstanding title in a third person to escape liability for not selling property levied on; but the landlord has no title. His only remedy by which he could protect his lien after the levy by the sheriff was to sue out a distress warrant and to place it in the hands of the sheriff for the purpose of claiming the proceeds upon rule to distribute, Mulherin v. Porter, 1 Ga. App. 153, 58 S. E. 60. Upon such a rule the plaintiff in fi, fa. could have contested with the landlord upon equitable principles, and probably upon more favorable terms than he could have resisted the defense set up by the sheriff under the landlord's rights; since in the latter case the matter has been so brought about that the sheriff and the landlord, whose interests would naturally be in line with those of the sheriff, are probably enabled to claim a imonopoly upon the direct proof as to the

value of the crops. Justice Samuel Lumpkin, in Duncan v. Clark, 96 Ga. 266, 22 S. E. 928, in discussing the reasons why it is necessary for the landlord to foreclose in order to assert his lien, adverts to this ques. tion as follows: “It covered the entire crop of the tenant, and it is obvious that in such a case the landlord and tenant, by collusion between themselves, could easily defraud judgment creditors of the latter, if he were allowed, by merely delivering the crops, or a portion thereof, to the landlord, to vest in him a title which would be superior to the lien of existing judgments against the tenant. The tenant, by delivering to the landlord more than enough of the crops to satisfy the landlord's lien, could, with the latter's connivance, cover up property really subject to judgments held by other creditors. Hence, in such cases, as was suggested in Stallings v. Harrold, Johnson & Co., 60 Ga. 478, the necessity that the property be legally administered and the proceeds paid out according to due priority, thus giving to all persons interested the assurance of obtaining their exact rights.” If the sheriff had maintained his levy, the landlord might have found other means of obtaining the sum due him. We therefore hold that the portion of the answer relating to the seizure of the crops by the landlord and the appropriation of them to the rent lien was properly stricken. The sheriff's remedy in the matter ls to Sue the landlord for the violation of the levy. To such a suit the landlord would not be permitted to set up as a defense his wrongful seizure of the property from the sheriff's possession. The sheriff's title acquired by the levy is superior to the landlord's unforeclosed rent claim. Let there be a new trial, solely on the ground indicated in the headIn Ote. Judgment reversed.

DAVIS v. JOINER. (No. 48.)

(No. 49.)
(Court of Appeals of Georgia. Jan. 29, 1907)

1. WRIT OF ERROR – BILL OF EXCEPTIONS SUFFICIENCY-STATUTORY PRov ISIONS. A bill of exceptions which recites that a motion to dismiss a certiorari was made upon various grounds, and that the motion to dismiss was sustained on all the said grounds (said grounds being specifically set out in the bill of exceptions), “to each and all of which rulings the plaintiff excepted, now excepts, and assigns the same as error,” specifies “plainly the deci: sion complained of and the alleged error,” and 'specifically sets forth the errors alleged to have been committed,” within the meaning of Civ. Code 1890, $$ 5527, 55.28. 2. JUSTICEs of THE PEACE—REview—CERTIORARI–I’AYMENT of Costs—CERTIFICATE. . Section 4639, Civ. Code 1895, requires, among other things, that, “before any writ o certiorari shall issue, the party applying for the same, his agent or attorney, * * shall :: * produce a certificate from the officer whose decision or judgment is the subject-matter

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