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of complaint that all costs which may have actrued on the trial below have been paid.” Where such certificate was not made by the “officer whose decision or judgment is the subject-matter of complaint," but by the clerk of the court, this was not a compliance with the positive requirements of this section of the Code, and a motion to dismiss the certiorari on this ground, made in the superior court, was properly sustaintd. Fuller v. Arnold, 64 Ga. 600 (3) ; Osborn v. Usborn, 70 Ga. 716; Cole v. Thurman, 45 S. E. T.S. 119 Ga. 55; Dixon v. State, 49 S. E. 31, 121 Ga. 346; Miller v. State, 55 S. E. 41%, 125 Ga. 558. The statute on this point, being free from ambiguity, must be construed according to its plain terms. Nowell v. Haire, 4. S. E. 719, 116 Ga. 388. For the reasons sa'od in this headnote, the judgment dismissing the certiorari is affirmed in both cases.

|Syllabus by the Court.)

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

Two actions—one between one Davis and One Joiner, and the other between one Durden and the Mutual Fertilizer Company. From the judgments, Davis and Durden bring error. Affirmed.

Suffold & Larsen and Z. D. Harrison, for slaintiffs in error. Smith & Kirkland, for defendants in error.

HILL, C. J. Judgments affirmed.


(Court of Appeals of Georgia. March 28, 1907.)

1. C A R RIE Rs – ExPULSION OF PASSENGER —DAMAGES. The forcible expulsion of a passenger from A railway train, where he presents the conductor a ticket from which coupons have been improptry detached by another conductor of the coinpany on an earlier portion of the passage, is a tort by breach of duty, for which the passenger is entitled to recover any damage he may have sustained, as determined by the jury from the evidence; and it is error to award a nonsuit, where the plaintiff has proved such case, as laid in the petition. [Ed. Note—For cases in point, see Cent. Dig. Vol. 9, Carriers, $ 1432.]

2. TEIAL–NoNsuit—OPENING CASE. Whether a case shall be opened after a motion to monsuit has been made is in the discretion of the trial court; and, where (as in this case) the trial judge did not in terms refuse to open the case as a matter of discretion, his consent to open the case is implied.

Ed. Note—For cases in point, see Cent. Dig. Vol. 46, Trial, § 165.]

3. Evidence—Documents IN Possession of ADVERSE PARTY--PRODUCTION. . As a general rule (subject to exceptions for Privilege), where it is shown that a paper which would be evidence material to the issue is in the ourt, it is the duty of the judge to require the production of . documentary evidence in*Aster; and it is the duty of the court, where the alleged holder of such paper is there presot, to grant a proper request for an investigaon to determine whether such paper is in fact o and whether its production shall be reso. Note-For cases in point, see Cent. Dig. ol. 20, Evidence, $ o;..] g

4. SAME.

A railroad ticket is evidence of the purchaser's right to ride a certain distance. When honestly obtained by purchase and payment therefor, it is the property of the purchaser. It is his property until delivered by him in exchange for transportation. If it be a coupon ticket, and any of the coupons be negligently, improperly, or wrongfully dotached by the carrier, the purchaser has, none the less, a property right in such detached coupon, for purposes of evidence.

(Syllabus by the Court.)

Error from City Court of Atlanta; Reid, Judge.

Action by one Moore against the Central of Georgia Railway Company. Judgment for defendant, and plaintiff brings error. ReVersed.

Edgar Latham, for plaintiff in error. Dorsey, Brewster, Howell & Heyman, for defendant in error.

RUSSELL, J. The plaintiff was nonsuited, and he excepted. He objects to the process of legal mechanics by which his case was chopped off. As this mechanical treatment can only be applied in a case so clear as to leave it beyond question that the plaintiff has nothing which it would be to his advantage to submit to the jury, and as the plaintiff in this case had proved the allegations of his petition, the question before us really becomes one as to whether the plaintiff selected the proper form of action ; that is, whether he should have sued, as he did, because he was ejected from the train, or whether he should have based his cause of action (if he has any) on the wrongful tearing of his ticket. We think the plaintiff's case is controlled by the decision in Head v. Ga. Pacific R. Co., 79 Ga. 358, 7 S. E. 217, 11 Am. St. Rep. 434.

Counsel for the defendant insists that the plaintiff did not present a complete ticket to the conductor; that what he did present was a part of a contract, which was absolutely worthless without the ticket part of the same attached thereto. It is a further contention of the defendant in error that in the Head Case, in Morse v. Southern Ry. Co., 102 Ga. 302, 29 S. E. S65, and in Southern Ry. Co. v. McKenzie, 102 Ga, 313, 29 S. E. 869, and other similar cases, the plaintiff, in each case, had a ticket and made an effort to comply fully with the requirements of the railroad company. We can see no real difference between those cases and the present case. In the IHead Case, as in this, the plaintiff did not have a ticket, in the strict sense of that term. It lacked validation; and this lack of validation, according to one of the express stipulations of the contract, voided it, so far as return passage was concerned. In this case the plaintiff had a ticket; but the coupon was detached, without any fault on his part. If he had ob. jected to the conductor detaching the return coupon (instead, as appears from the evidence, of ignorantly and passively submitting), he would have been powerless to prewent the detaching of the coupon and impotent to restore it. As in the Head Case, he complied fully with the requirements of the railroad company. He paid for his ticket, presented it to the conductor, and had the right to rely upon the fact that the company, which had sold him the ticket, would not destroy it. A corporation can only act through its agents; and so one hand of this being presented him the ticket, while the other hand repudiated and destroyed it. The only difference that we can see between the Head Case and the present case is that in the Head Case the conductor was bound, at ...his peril, to consider proof of identity of person. The present case relies on proof of identity of place of destination. In the Head Case the conductor, acting in behalf of the colupany, would have had the perfect right to eject the passenger if he had not been the person mentioned in the ticket and who originally purchased it; but the company having sold the ticket, acted at its peril, and if it ejected the purchaser, whose ticket, through no fault of his, was not validated, the company became liable. In the present case the plaintiff had a ticket, or a portion of a ticket, which he tendered the conductor, which showed that it was valid, except that it did not designate the place of destination. The company, having sold the ticket, is presumed to know the place of destination. If the holder of the ticket states the wrong place of destination, the company has the right to eject him, after carrying him to the proper place of destination. But it acts at its peril if it disregards its own contract and excludes the passenger short of the point where it has agreed to carry him. The principle underlying the decision in the Head Case is that the corporation is responsible for the acts of its agents—not of one only, but of all with whom the opposite party to the contract is obliged to deal until the contract has been fully executed; and the same principle is controlling in this case. It is not a question of the conductor's hearing evidence, and passing upon it, as to whether the holder of an unvalidated ticket was the true purchaser, or whether the holder of a contract with the return coupon detached was entitled to ride to Ilampton or to Savannah, Ga.; but in both cases the identical person (artificial) who sold the ticket and made the contract must be presumed to know its contents, and be held to carry them out. We think, therefore, the award of a nonsuit in this case was errone.0 U.S. The second exception is taken to the refusal of the court to allow a witness to be placed upon the stand for the purpose of proving that the coupon which had been detached was in his possession and in the court. As a general rule, where it is shown that a paper which is material to the issue is


in the court, it is the duty of the judge to require the production of such documentary evidence instanter. But this rule is subject to exceptions. For instance, if the paper in question is in the possession of counsel for one of the parties, the court in some cases may not require him to discover it, but may require the client to obtain it from his counSel and disclose it to the court. On the other hand, there is a difference dependent on the character of the possession. Where a paper which has been surreptitiously obtained is not material to the cause or defense of one's client, and is material to the interest of the opposite party, not only good law, but good morals, require the instant production of such a paper, when it is shown to be in court. As to parties other than counsel, the trial judge, when the paper is in court, and there. fore within his power, should, if its contents be competent evidence, require its production forthwith. We are unable to judge from the record in this case whether the witness, Mr. Erwin, was or was not of counsel. However this may be, we think it was the duty of the court to grant the request of the plaintiff for an investigation, which would have de. veloped whether or not the paper was in court, and thus within the power of the judge, provided Mr. Erwin was not of coun. Sel, or even if he were of counsel. The detached coupon was the property of the plain. tiff, which had been wrongfully taken from his possession by the defendant and con. tinuously wrongfully withheld. The plaintiff paid his money for a contract of carriage evidenced by the return coupon. It was as much evidence of his right to ride as a deed is evidence of one's right to possession of the land therein described. For that reason, re. gardless of the effect of this evidence on the defendant's case, and whether the witness offered by the plaintiff was an attorney for the defendant or not, we think good law, and certainly good morals, would demand its instant delivery to the party to whom it belonged. The railway company, through its conductor, forcibly took this coupon from the plaintiff. It should not be allowed to keep it through any other of its agents. Trustees of Chester County v. Blount, 70 Ga. 782; Morgan v. Taylor. 55 Ga. 223 (3). Judgment reversed.

FEws v. STATE. (Nos. 181. 182, 183.) (Court of Appeals of Georgia. Jan. 31, 1907)

1. Courts – Court of APPEALs –CONSTIT. Tio NAL QUESTIoN–CERTIFYING to SUPREMP COURT. Although a claim or a defense may be as: serted or resisted under a clause of the Constitu" tion, unless a construction of such clause of the Constitution is involved, this court is not to uired to certify the question to the so ourt. Where the meaning of the language use in the constitutional provision is unambiguous and undisputed, or where the recognized coo struction which has been given such a provis” is unchallenged, no question of construction...is involved. No such question, is presented in the more determination of whether a given state of facts establishes or disestablishes a claim or a defense asserted or resisted under an unquestion: onstruction of a constitutional provision. If the particular question of construction sought to be raised has been sed upon directly by the Supreme Court, such question will not be certifiej to the Supreme Court for repetition of its former decision.


2. SAME-FORMER CoNVICTION. The finding of the trial court against the lea of former conviction was not unauthorized: it appearing that, while both indictments were for assault with intent to murder, the assaults were separate, were upon two different individuals, and were not in response to a joint attack of the persons assaulted, although one of the assaults immediately followed the other. |Ed. Note—For cases in point, see Cent. Dig. vul 14, Criminal Law, § 382.] & HOMICIDE—ASSAULT witH INTENT To KILL —INSTRUCTIONS. The charges complained of were not erroneOls. The law against shooting at another was Lot involved in the case, nor was the law as to simple assaults; hence the court did not err in ofusing to charge on these subjects. Each verdirt was fully warranted by the evidence.

(Syllabus by the Court.)

Error from Superior Court, Bibb County; Felton, Judge.

One Fews was convicted of assault with intent to kill on two indictments, and brings triot. Affirmed on each bill of exceptions.

John R. Cooper, for plaintiff in error. William Brunson, Sol. Gen., for the State.

POWELL, J. The defendant was tried ind convicted of the offense of assault with Intent to murder in each of two cases. In tise No. 183 the felonious assault is alleged to have been committed upon W. G. Solomon, Jr., and in No. 181 upon Charlie Adams, Jr. The defendant was first tried and convicted upon the charge relating to Solomon (case N. 183). Upon being arraigned upon the inWoment relating to the assault upon Adams, * filed a plea of former jeopardy, alleging th the indictment in this case charged him with the same transaction for which he had on convicted in the case relating to the as*ult upon Solomon. By consent this plea "sheard by the trial judge, who, upon hearof the evidence, found against the plea. Footion to this finding of the court was taken, and this forms the basis of case No. * in this court. The evidence against the "used in each case made out a malicious, "unton, and unprovoked case of assault with intent to murder; the state's testimony owing that Solomon, Adams, and certain other young men were quietly walking along, upon the “circle,” or “midway,” at the State hit in Macon, when, without provocation or "arting the defendant, who was unknown * them, first fired two shots, one of which "tick Solomon, and then turned his pistol on Adams, who, seeing that he was about "be shot, ran towards defendant and grab*1 bold of him; and, while Adams was *uggling with the defendant, the defendant

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managed to get his pistol in such position that he fired it, striking Adams in the abdomen. The defendant's statement, which, however, was abundantly contradicted by other proof in the case, was that some one had assaulted him, knocked him down, and was on him, beating him and kicking him, when he shot his pistol in the air, thus inflicting the wounds upon Solomon and Adams. In each of the separate motions for new trials, in cases No. 181 and 183, the defendant Complains of a charge of the court upon the effect of the evidence of good character introduced by the defendant, and as to the manner in which the contentions of the state are set forth. Since these charges appear to us to be so manifestly without error, and since a decision upon them would not be to announce any new principle of law, we deem it unnecessary to set them out further. In case No. 183 (the Solomon case) exception is also taken to the fact that the court refused to charge the jury upon the law of shooting at another and upon the law of assault. 1. In case No. 182, relating to the finding of the court upon the plea of former jeopardy, counsel for the defendant asks us to certify the question therein to the Supreme Court for instruction, on the grounds that it involves a construction of the clause of the Constitution of this state, which provides that “no person shall be put in jeopardy of life, or liberty, more than once for the same offense, save on his or her own motion for a new trial after conviction, or in case of mistrial.” Civ. Code 1895, $ 5705. The constitutional amendment creating this court provides that “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 to 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. It will be seen from the above that, since the question presented in this case does not involve the constitutionality of an act of the General Assembly, it must appear that it raises a question as to the construction of a provision of the Constitution, before this court is required to certify it to the Supreme Court. A case that involves merely the applicability of a concededly unambiguous clause of the Constitution to a given state of facts raises no question of construction. Likewise, where a clause in the Constitution has been construed by the Supreme Court as having a certain meaning and intendment, and such fixed judicial construction is unchallenged, there is still no question raised as to the Construction of a clause of the Constitution. The excerpt from the constitutional amendment creating this court, quoted above, is also to be construed in pari materia with another provision in the same law that “the decisions of the Supreme Court shall bind the Court of Appeals as precedents.” Therefore, if the identical question of construction has been before the Supreme Court, and that court has judicially given a construction to the clause in question, it is unnecessary to certify and to continue to certify such a question to the Supreme Court every time a party may seek to raise it. In this case the able and earnest counsel for the defendant raises no question as to the construction of the clause of the Constitution under which he attempted to assert his defense, he merely contends that under the well-known, wellrecognized, and unquestioned construction of that fundamental law his defense was good. In his argument in this court he contended that under the recognized construction of that provision of the Constitution the “sametransaction test” should be applied to his plea of former jeopardy; and counsel for the state agreed with him. The trial court heard evidence for the express purpose of determining whether the transaction for which the defendant had been convicted already was the same transaction for which he was about to be put on trial in the second case. The finding of the court, that the transactions were not the same, in no Sense involved any construction of the constitutional provision ; and by determining, as we now do, that the trial court committed no error in that finding, we have not decided any constitutional question. 2. The defendant shot two separate and distinct men. The assault upon each of them was separate. They had made no joint attack upon him. The intent to kill was directed against them individually. The fact that the interval between the two shootings was slight does not make the transactions identical. Therefore there was no lawful reason why he should not be tried and convicted in both cases. Crocker v. State, 47 Ga. 508. 3. The only other assignment of error not already disposed of is that the court erred in not charging the jury, in the case relating to the assault upon Solomon, the law of shooting at another and the law of simple assault. Under the evidence in the case these offenses were not involved. Judgment affirmed on each bill of exceptions. ===


IIAMMOCK v. STATE. (No. 157) (Court of Appeals of Georgia. Feb. 4, 1907.) 1. CRIMINAL LAw-APPEAL – QUESTIows REv1EwABLE. . . No question as to the construction of a provision of the Constitution is necessary to the determination of this case.

2. SAME-EVIDENCE UNLAwFULLY EXTORTED. When by an unlawful search and seizure, under an illegal arrest, a person is compelled by an officer of the law to furnish incriminating evidence against himself, such evidence is not admissible against him in a criminal prosecution. [Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 874.]

(Syllabus by the Court.)

Error from City Court of Macon; Hodges, Judge.

One Hammock was convicted of carrying a concealed weapon, and brings error. Reversed.

Charles H. Hall, Jr., for plaintiff in error. William Brunson, Sol. Gen., for the State.

POWELL, J. The defendant was tried and convicted upon an accusation charging him with the offense of carrying a concealed pistol. The only testimony offered in the case was that of the prosecutor, as follows: “I am a deputy sheriff of this county. Upon information I arrested the defendant. I had no warrant for him. After I arrested him I Searched him, and found a pis. tol in his right hip pocket. The pistol was concealed. The defendant was doing nothing at the time I arrested him. I took the pistol from his pocket myself. I had not seen the defendant commit any crime. The defendant wore a coat which COWered pocket in which pistol was found. I arrested him in Dan O'Connell's bar, in Bibb county, Macon, Ga. This was on September 8, 1906.” To the introduction of this evldence the defendant objected on the following grounds: “Because the evidence of the said witness Jones was acquired by the unlawful and illegal arrest of the defendant by the witness Jones, such unlawful and illegal arrest of the defendant being forcible, being without the consent and against the will of defendant; that by means of such unlawful and illegal arrest of defendant, he, the defendant, was by said witness Jones compelled to furnish the incriminating evidence against himself, in violation of the Constitution and laws of this state, which provide that no person shall be compelled to give testimony tending in any manner to criminate himself.” The court overruled the objection, and the defendant brings up the ruling for review.

1. In his argument in this court defendant's counsel asked us to certify to the Supreme Court the question made by him as to the admissibility of the testimony complained of Since the ruling made by this court in the case of Fews v. State. 1 Ga. App. 122, 5S S. E. 64, seems to cover this point, we deem further discussion of it unnecessary.

2. Under the Constitution persons are proteeted against unlawful searches and selotes, and also against being compelled to *Ye testimony tending in any manner to in*iminate themselves. A violation of the former right does not necessarily render evi

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dence, incidentally disclosed thereby, inadmissible. A violation of the latter right does. When the act in question is a concurrent violation of both rights, the person is none the less to be protected. By an application of this test the decisions by the Supreme Court in the cases of Franklin v. State, 69 Ga. 36, 47 Am. Rep. 748 (3), Woolfolk v. State, 81 Gä. 562, 8 S. E. 724 (6), Williams v. State, 100 Ga. 511, 28 S. E. 624, 39 L. R. A. 269, D07ier y, State, 107 Ga. 708, 33 S. E. 418, Springer v. State, 121 Ga. 155, 48 S. E. 907, and Duren v. City, 125 Ga. 1, 53 S. E. 814, may be distinguished from and reconciled with the decisions in the cases of Day v. State, 63 Ga. 667, Blackwell v. State, 67 Gà, 76, 44 Am. Rep. 717, Rusher v. State, 94 Ga. 303, 21 S. E. 593, 47 Am. St. Rep. 175, and Evans v. State, 106 Ga. 519, 32

S. E. 659, 71 Am. St. Rep. 276. These deisions are not in absolute harmony, if we regård all that is said by way of argument and obiter, but are not irreconcilable when only the points actually decided are considered. If we were untrammeled by some of these decisions, our own views of the sa(red character of these constitutional rights of the private citizen might induce us to extend the rule further than we do. After giving recognition to the limitations imposed by the precedents, we hold that, when a person is subjected to an illegal arrest accomsailled by an unlawful search of his person, Whereby he is involuntarily compelled to disthose evidence of a crime which, in the ab*ence of his volition being destroyed, he would not otherwise have disclosed, the evidence so obtained shall not be received against him on a prosecution for the crime. Nothing in this ruling conflicts with the deisions cited above. In Franklin v. State, Dozier v. State, and Springer v. State, the “idence was disclosed by a lawful search Pending lawful arrest. In Duren v. City, no orrest Was made and no evidence was obtailed from the accused, nor from what was On his person. In Williams v. State the ob*tion was not made to the tesetimony on the ground that the defendant had been tompelled to furnish testimony tending to intiminate herself, but merely on the ground that the search and seizure, by which the *timony was disclosed, was unlawful, and o decision of the court was upon this point 8||00e, That the evidence offered in this case was obtained by an officer of the law as a result of an unwarranted act of violence committed by such officer upon the person of the ac(used, who was not under lawful arrest, is to plain to admit of question. The crime Committed by the officer was far more serious than that committed by the accused. The law recognizes no offset of crimes in such cas*s, but it does recognize that there is a public policy which would rather see the guilty go unpunished than have the guilt of the accused

established by violently and unlawfully compelling him to furnish evidence against himself. To say, in a case such as this, that the officer furnishes the testimony, and that the defendant, therefore, has not been compelled to give evidence tending to incriminate himself, can be justified only by skimming the surface and neglecting to consider the penetralia of the transaction. Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746. Although the remarks of Chief Justice Bleckley in Rusher v. State may have been obiter, they are too good to be untrue. He says (94 Ga. 366, 21 S. E. 594, 47 Am. St. Rep. 175): “The law ought to hold out no encouragement to violent and lawless men to commit crime for the sake of detecting a previous crime and bringing the offender to punishment. The law should never suffer itself to become an enemy or antagonist to its own reign. The multiplication of crimes as a remedy for crime would be a very absurd and disastrous public policy, and we think courts should not lend themselves to the advancement of any such policy, unless they are compelled to do so by statute or some authority equally obligatory.” The statement in the first headnote in that case, “The well-established rule that independent facts discovered in consequence of a constrained confession made by a prisoner are admissible in evidence against him is of force in this state, unless it appears that criminal violence was used in procuring the confession or making the discovery,” coincides very closely with what we are here ruling. Judgment reversed.

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