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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 Coleman'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 witnesses, 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 often 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 afirmed.

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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 de mand 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 judg. ment 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 deci. sion 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.



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 pecessary 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 StarUTE-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. CABRIERS - CARRIAGE OF FREIGHT-OVERCHARGE-LIABILITY.

Independently of the statute of 1889, embodied in Civ. Code 1895, § 2316, a carrier is liable to suit by a shipper for the recovery of an overcharge of freicht which such shipper has paid under protest in order to obtain his goods, and which the carrier refused to repay on demand.

(Ed. Note.-For cases in point, see Cent. Dig. Fol. 9, Carriers, $ 915.) 4. SAME-PERSONS 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.


De Lacy & Bishop, for plaintiff in error.

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POWELL, J. Schlittler brought suit against the railway company for the recov


2, 3. Manifestly the constitutionality of 2. SAME-EVIDENCE. Civ. Code 1895, § 2316, so far as it author

No error of law was committed, and the

verdict was fully warranted by the evidence. izes a recovery of a penalty for the failure

(Syllabus by the Court.) to repay the overcharge within 30 days after written demand, is not involved in the case Error from Superior Court, Tift County; as it appears in this court; for no judgment Mitchell, Judge. has been rendered against the complaining One Perry was convicted of renting land party for any such penalty. But it is insist to a cropper or employé of another, and ed that the constitutionality of the statute brings error. Afirmed. may be brought into question, for that it T. R. Perry and C. C. Hall, for plaintiff in provides that the person paying the over error. W. T. Thomas, Sol. Gen., and W. L charge may sue for the repayment of the Talley, for the State. overcharge as well as for the penalty, and that the plaintiff's cause of action, as to the

HILL, C. J. Judgment affirmed. sum which he did recover, is also based solely upon this statute. We are not pre POWELL, J., disqualified. pared 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 MULHERIN v. PORTER et al. (No. 56.) consistent (except so far as the penalty is (Court of Appeals of Georgia. Feb. 6, 1907.) concerned) with what would be required in a

1. LANDLORD AND TENANT - DISTRESS WAB. suit under the law as it stands independent. BANT-LEVY. ly of the statute in question. In fact, the al Although a distress warrant cannot be lepo legations that the payment was made under

ied upon property which has already been seized

under judicial process, such distress warrant protest and that the carrier refused to de

may be placed in the hands of the levying offiliver him his property except upon his pay. cer, and, upon a rule to distribute the fund, may

assert its lien. ing the overcharge seem to indicate clearly that the plaintiff had in mind the general

[Ed. Note.--For cases in point, see Cent. Dig.

vol. 32, Landlord and Tenant, $ 1091.] law allowing a recovery in such cases; for

2. MARSHALING ASSETS AND SECURITIES such allegations are entirely unnecessary un GENERAL RULE. der Civ. Code 1895, § 2313. See, in this con The general rule, obtaining in the marshalnection, Civ. Code 1895, $ 3723. The plain- ling of assets and securities, that if one creditor,

by virtue of a lien or other interest, can resort tiff's recovery being authorized by common

to two funds, and another creditor to only one law, as well as by the statute in question, of them, the former must seek satisfaction out the constitutionality or unconstitutionality

of that fund which the latter cannot touch, is of the latter becomes absolutely immaterial.

subject to the limitation that such marshaling

must not be applied to the detriment of a third 4. It is insisted that the finding against person with an equity equal to or greater than the defendant is without evidence to sup

that of the creditor seeking to invoke the rule. port it, because the contract of shipment was

Beneficiaries of a homestead have such an equity

and interest in the homestead estate as to be not made with Schlittler, but with Baxley. within the protection of this limitation. It was alleged in the petition, and proved, [Ed. Note.-For cases in point, see Cent. Dig; that Baxley was Schlittler's agent. The de vol. 34, Marshaling Assets and Securities, $ 8.] fendant's agent, in presenting the bill for (Syllabus by the Court.) the freight, made it out against Schlittler, and collected the same, as well as the over

Error from City Court of Richmond Coun. charge from him. This was sufficient. Cen

ty; Eve, Judge. tral of Georgia Ry. Co. v. James, 117 Ga. 832,

Rule by one Mulherin to distribute a fund 45 S. E. 223.

arising from an execution sale against Frank Judgment affirmed.

Harris. Porter and Eve intervene. Judgment for intervenors, and plaintiff brings error. Atlirmed.

F. W. Capers, for plaintiff in error. WilPERRY V. STATE. (No. 366.)

liam H. Barrett and Joseph Ganahl, for de

fendants in error. (Court of Appeals of Georgia. March 28, 1907.) 1. MASTER AND SERVANT-RENTING TO Crop.

POWELL, J. The plaintiff in error, MulPER OB EMPLOYÉ OF ANOTHER


herin, brought a rule to distribute the fund TIONS.

On the trial of a defendant for violating arising from the sale of certain corn which the act of August 7, 1903 (Acts 1903, p. 91), had been levied upon and sold as the properby specific acts set forth in the indictment, the ty of one Frank Harris under a commonjudge did not err in giving the whole of said act in his charge to the jury, although the gen

law fi. fa. which Mulherin had obtained eral words with which the act concludes, and against him. In response to the rule, Porter which were intended to embrace all other viola and Eve intervened, and made it appear that tions of it, did not apply to the case on trial.

the corn in question was subject to a lien Especially is this true when it was not contended that the defendant was guilty, except in the

in their favor for rent which was superior manner charged in the indictment

to Mulherin's judgment, and that distress

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Farrants had been sworn out for tbis rent tional Bank v. Exchange Bank, 110 Ga. 693.
and had been placed in the sheriff's hands 36 S. E. 265 (2).
for the purpose of claiming the proceeds. In 2. Upon a rule to distribute money the
addition to these facts it was conceded upon equitable doctrine of the marshaling of as-
the hearing that the defendant Harris had sets and securities is applicable. This rule,
applied for and obtained a homestead which established upon ancient authority in courts
did not include the property in question, also of equity, has express recognition in several
that he had other crops, which, though in sections of our Code, notably sections 2691,
cluded in the homestead, were subject to the 4002, and 4012. "The general rule is that if
liens of Porter and Eve, but which could one creditor, by virtue of a lien or interest,
not be levied on by Mulherin's fi. fa., on ac. can resort to two funds, and another to one
count of being exempt under the homestead. of them only, the former must seek satisfac-
It was agreed upon the trial that these addi tion out of that fund which the latter cannot
tional crops were sufficient to pay the rents. touch.” Pom. Eq. Jur. § 1414. But this re-
The trial court awarded the funds to Porter lief will not be given if it will prejudice the
and Eve, and Mulherin excepted, alleging rights of third persons. Ga. Chem. Works
that the judgment was erroneous: "(1) Be v. Cartledge, 77 Ga. 547, 4 Am. St. Rep. 96;
cause the distress warrants were without Green

v. Ingram, 16 Ga. 164; Behri v.
llen on the fund in the hands of the sheriff, Young, 21 Ga. 207 (3); Craigmiles v. Gam-
for the reason that they were proceeding to ble, 85 Ga. 439, 11 & E. 838. "The doctrine
assert the special lien of the landlord upon of marshaling will not be applied so as to
the crop of the year, and this lien had not work an injustice to the debtor. Conse-
been perfected by levy. (2) Because, in addi quently it is generally held that it cannot
tion to the corn levied upon by the sheriff, be invoked to compel a creditor to resort to
proceeds from the sale of which are in his a homestead in the first instance. The ob-
hands, there was other produce grown on ject of the exemption is to protect the debtor
said premises for the same year, on which and his family. If a creditor without a lien
these distress warrants may be levied, suffi were allowed to compel its application upon
cient to pay off said distress warrants, out of a prior claim, the right might be practically
which the plaintiffs in distress warrants may valueless." Pom. Eq. Jur. $ 869, The eq.
realize their claim, and from levying upon uity of the beneficiaries of a homestead is,
which plaintiff in fi. fa. is debarred by the under our Constitution and laws, superior to
defendant's homestead; and it is an equitable that of a creditor by ordinary judgment,
principle that if two plaintiffs have liens on where the right of homestead has not been
the same person, and one plaintiff may at- | waived, or the homestead estate is not other-
tach two funds, and the other but one, the wise subject to the debt upon which such
plaintiff having the right to proceed against judgment is founded.
the two funds will be turned upon that fund Judgment affirmed
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 PRINCE, Sheriff, v. WALKER. (No. 121.)
in judicial custody, and therefore was not

(Court of Appeals of Georgia. Feb. 21, 1907.)
subject to levy by virtue of the distress war-
rant. Fulghum v. Williams, 114 Ga. 643, 40


ANSWER. $. E. 695, 7 L. R. A. (N. S.) 1055, 88 Am.

Where the sheriff has levied a common-law St. Rep. 48, and cases cited. Ordinarily the fi. fa. upon a crop in the field, but neglects to levy of a distress warrant is the apt and sell the same, and is ruled by the plaintiff in fi. effectual means of asserting the landlord's

fa. for bis failure to make the money, it is not lien for rent; but in cases such as this, where

sufficient answer that subsequently to the levy

the landlord of the owner of the crop carried a levy is not allowable, the lien may never the crop away and appropriated it to the paytheless follow the fund. “Where money is

ment of a lien due him, superior to that of the in the hands of an officer, he may pay it over

plaintiff in fi. fa.;. but, so far as the answer

to such a rule denies that the crop was of the to the plaintiff by whose process it was rais value alleged by the plaintiff in fi. fa., it is good, ed, unless other claimants deposit their lien and should not be stricken. with him. Notice to retain, unaccompanied (Syllabus by the Court.) by a lien, is insufficient. Money raised by legal process not being subject to levy and

Error from City Court of Dublin; Burel, sale, the court in making distribution pro

Judge. ceeds upon equitable principles. All parties

Rule by one Walker against one Prince, intervening sball, by appropriate pleading,

sheriff, alleging that by failure to sell set forth the ground of their claim to the

certain crops after levy on same he had fund. All persons interested, who are noti

been damaged to the amount of the debt, fied in writing by the sheriff or movant of

Rule absolute, and plaintiff brings error. the pendency of the rule, will be bound by the

Reversed, judgment of distribution." Civ. Code 1895, W. C. Davis, for plaintiff in error. Ira $ 4776; Hopkins v. Pedrick, 75 Ga. 706; Na S, Chappell, for defendant in error.

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POWELL, J. Prince, as sheriff of the value of the crops. Justice Samuel Lumpcity court of Dublin, levied a common-law kin, in Duncan v. Clark, 96 Ga, 266, 22 S. fi, fa, in favor of Walker upon certain crops E. 928, in discussing the reasons why it is of the defendant in fi. fa. Subsequently, up necessary for the landlord to foreclose in on the sheriff's neglecting to sell the property, order to assert bis lien, adverts to this ques. Walker brought rule, alleging that the crops tion as follows: "It covered the entire crop levied on were amply sufficient to pay the fi. fa. of the tenant, and it is obvious that in such in full, and that by the sheriff's failure to a case the landlord and tenant, by collusion proceed with the levy he had been damaged between themselves, could easily defraud in the amount of his debt. The sheriff an judgment creditors of the latter, if he were swered, admitting the levy, but denying that allowed, by merely delivering the crops, or the crops levied on were sufficient to have a portion thereof, to the landlord, to vest in paid the fi. fa., and setting up additionally him a title which would be superior to the that after the levy the crops were removed lien of existing judgments against the tenfrom the field by the landlord of the de ant. The tenant, by delivering to the land. fendant in fi. fa. and appropriated to pay lord more than enough of the crops to satisfy the rent due the landlord for the use of the the landlord's lien, could, with the latter's land on which the crops were raised, that connivance, cover up property really subject it took all of said crops so levied on to pay to judgments held by other creditors. Hence, the lien for rent, and that the landlord's lien in such cases, as was suggested in Stallings was superior to plaintiff's fi. fa. The court V. Harrold, Johnson & Co., 60 Ga. 478, the struck the entire answer as being wholly in necessity that the property be legally admin. sufficient in law, and gave rule absolute for istered and the proceeds paid out according the amount of plaintiff's fi. fa. The sheriff to due priority, thus giving to all persons excepts.

interested the assurance of obtaining their So far as the answer of the sheriff denied exact rights.” If the sheriff had maintained that the crops were sufficient to pay the fi. his levy, the landlord might have found other fa., it presented a good defense. "Two things

means of obtaining the sum due him. We are necessary to fix the sheriff's liability by therefore hold that the portion of the an. rule--contempt of court in not executing its swer relating to the seizure of the crops by process, and injury to the plaintiff.” Wheel the landlord and the appropriation of them er v. Thomas, 57 Ga. 163. See, also, Wilkin to the rent lien was properly stricken. V. Am. Freehold Mortgage Co., 106 Ga. 182, The sheriff's remedy in the matter is to 32 S. E. 135. It seems plain, therefore, that sue the landlord for the violation of the levy. this portion of the answer should not have To such a suit the landlord would not be been stricken.

permitted to set up as a defense his wrong. There is more difficulty as to the other ful seizure of the property from the sheriff's excuse set up by the sheriff for not making possession. The sheriff's title acquired by the the money--that after the levy the landlord levy is superior to the landlord's unfore took the crops and applied them to bis super closed rent claim. Let there be a new trial, ior lien. The sheriff contends that by show solely on the ground indicated in the heading this fact he demonstrates that no injury note. has resulted to the plaintiff in fi. fa.; and we Judgment reversed. 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 suffi

DAVIS V. JOINER. (No. 48.) cient answer. The levying officer may show

DURDEN V. MUTUAL FERTILIZER CO. outstanding title in a third person to escape

(No. 49.) liability for not selling property levied on;

(Court of Appeals of Georgia. Jan, 29, 1907.) but the landlord has no title. His only remedy by which he could protect his lien after


SUFFICIENCY-STATUTORY PROVISIONS. the levy by the sheriff was to sue out a dis

A bill of exceptions which recites that a tress warrant and to place it in the hands motion to dismiss a certiorari was made upon of the sheriff for the purpose of claiming the

various grounds, and that the motion to dismiss

was sustained on all the said grounds (said proceeds upon rule to distribute. Mulherin

grounds being specifically set out in the bill v. Porter, 1 Ga. App. 153, 58 S. E. 60. Upon of exceptions), “to each and all of which rulings such a rule the plaintiff in fi. fa. could have the plaintiff excepted, now excepts, and assigns contested with the landlord upon equitable

the same as error," specifies "plainly the deci

sion complained of and the alleged error," and principles, and probably upon more favor “specifically sets forth the errors alleged to have able terms than he could have resisted the been committed," within the meaning of Civ. defense set up by the sheriff under the land

Code 1895, $8 5527, 5528. lord's rights; since in the latter case the


RARI --PAYMENT OF COSTS-CERTIFICATE. matter has been so brought about that thie

Section 4639, Civ. Code 1895, requires, sheriff and the landlord, whose interests among other things, that, “before any writ of would naturally be in line with those of certiorari shall issue, the party applying for the

shall the sheriff', are probably enabled to claim a

same, his agent or attorney,

* produce a certificate from the officer monopoly upon the direct proof as to the

whose decision or judgment is the subject-matter

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