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Varnell et al. Speer.

defendant made a motion in arrest of judgment, on the ground that the indictment on which the defendant was tried and convicted contained, in separate counts, two separate and distinct offenses, requiring different punishments, and the jury having found a verdict of guilty generally, it is impossible to tell of what they found him guilty. On hearing and considering the motion, the court overruled it, and the defendant excepted.

This is not an open question in this court. Where an indictment contains two separate counts for offenses which may be properly joined therein, the one for a higher grade, and the other for a lower grade of an offense of the same nature, connected with, and growing out of the same transaction, though the punishment for each grade of the offense may be different, and upon the trial the jury find a general verdict of guilty, the legal intendment of such a verdict is to find the defendant guilty of the highest grade of the offense charged in the indictment: Bullock vs. The State, 10th Georgia Reports, 47; Dean vs. The State, 43d Ibid., 218.

Let the judgment of the court below be affirmed.

M. P. VARNELL, agent, et al., plaintiffs in error, vs. L. N.

SPEER, agent, defendant in error.

55 132 60 312

1. When the parties are not set out with sufficient certainty to ascertain who

are the defendants to a suit, no valid judgment can be rendered against

any one. 2. A summons of garnishment which requires the agent of a railroad com

pany to answer what he owes to the defendant, is not sufficient to found a judgment thereon against the company as garnishee.

Judgments. Parties. Garnishment. Principal and agent. Before Judge McCUTCHEN. Whitfield Superior Court. April Term, 1875.

Reported in the opinion.

Johnson vs. Western and Atlantic Railroad Company.

SHUMATE & WILLIAMSON, for plaintiffs in error.

No appearance for defendant.


This was a suit brought by L. N. Speer, agent of E. H. Speer, against the Missouri, Kansas and Texas Railroad Companies and their connecting lines on to Chattanooga, and the East Tennessee, Virginia and Georgia Railroad Company, garnishee. The justice court rendered julgment against the garnishee for some small amount, and the case came up to the superior court by certiorari, and the justice's judgment was affirmed by that court, and thereupon it was brought here by bill of exceptions. We think that the certiorari should have been sustained on two grounds; first, the parties are too indefinite to predicate any valid judgment upon against anybody; and, secondly, the summons of garnishment is issued against, and served upon, the agent of the East Tennessee, Virginia and Georgia Railroad Company, and requires him to answer what he owes, and not what the company owes.

In the case of Van Dyke et al., vs. Besser, 35 Georgia, 173, it is expressly ruled that a judgment should be set aside for such confusion and uncertainty of parties and pleadings as this record discloses. We therefore reverse the judgment below, and direct that the certiorari be sustained.

Judgment reversed.

TILLMAN W. JOHNSON, plaintiff in error, vs. WESTERN AND

ATLANTIC RAILROAD COMPANY, defendant in error.

55 133 58 490 68 706) 70 569 70 678 74 65

Where an employee of a railroad company knowingly uses defective ma

chinery, he cannot recover damages for injuries resulting therefrom.

Railroads. Torts. Before Judge McCUTCHEN. Gordon Superior Court. February Term, 1875.

Johnson vs. Western and Atlantic Railroad Company.

Reported in the decision.

W. H. DABNEY; W. R. MOORE, for plaintiff in error.

WOFFORD & MILNER; FAIN & MILNER, for defendant.

WARNER, Chief Justice.

The plaintiff brought his action against the defenılant to recover damages for the alleged careless and negligent conduct of the defendant's employees, whereby he was greatly injured, by having his leg broken, etc., the plaintiff being also an employee of the defendant. On the trial of the case the jury found a verdict for the plaintiff for the sum of $2,000 00. The defendant made a motion for a new trial, on the ground that the verdict was contrary to the evidence, that it was excessive, and for error in the refusal of the court to charge the jury as requested by defendant. The court granted the motion for a new trial, whereupon the plaintiff excepted.

It appears from the evidence in the record that the plaintiff was in the employ of the defendant as a track liand upon its road; that he, with other employees of the defendant, at the time of the alleged injury, were engaged in the transportation of themselves and tools to their place of work, on a hand-car. When going along to their place of work, on defendant's road, the boss of the squad directed them to stop and take on the car three iron rails, and five cross-ties, which was done, placing two of the rails on the west siile of the car, and one on the east side thereof; the cross-ties were put across the rails, the car then went forward about one-fourth of a mile, and took on another iron rail, which was placed on the east side of the car, near the edge, which was worn off and beveled. The parties then started off down the road, went about half a mile, when they reached Reeves' crossing; the boss blew his whistle for the car to stop, and said, let us get this car off the track, the train will soon be passing. Whilst unloading the car to get it off the track, the iron rail which had been placed on the east side of the car rolled off and broke

Johnson vs. Western and Atlantic Railroad Company. the plaintiff's leg. The plaintiff alleged, in bis declaration, as one ground of the defendant's negligence, that it was using an old, frail hand-car, that was nearly worn out, so much so that the edges of the platform were worn off to a steep bevel, and that said hand-car was in no way suited to the use intended. The evidence before the jury established the fact that the edges of the platform of the car, especially on the east side thereof, where the iron rail rolled off on the plaintiff's leg, was badly worn to a steep bevel. The plaintiff testified that he had been at work on the road with that same car about six months; that it was an old concern, badly worn off at the edges when he went on the road, and continued to get worse every day; that they used the car for hauling crossties and iron rails all the time, but he could see the car was getting worse and worse whilst he was at work on the road. The defendant, at the trial, requested the court to charge the jury, "that if the evidence shows that there was any defect in the handl-car furnished for the plaintiff's use, and with which he was associated, and if it appears from the evidence that the plaintiff was aware of such defect and continued to use it, and was damaged on account of the same, then he would not be entitled to recover.” The court refused this request to charge the jury, giving as a reason therefor that he did not understand the plaintiff as relying on the defects in the machinery or car furnished for the use of the employees. In view of the allegations in the plaintiff's declaration in relation to the defective condition of the car, and the evidence offered on the trial in support thereof, the charge requested was a pertinent legal charge, and should have been given as requested. The plaintiff's case was before the jury on the pleadings and evilence, for their consideration, and they may have found their verdict in favor of the plaintiff on the ground of the worn and beveled condition of the east side of the platform of the car, off of which the iron rail rolled on to the plaintiff's leg—who can tell? The court, therefore, should have given in charge to the jury the law applicable to the evidence in the case as requesteil. But inasmuch as the Earp vs. The State of Georgia. court below has corrected its own error, by granting a new trial, we affirm its judgment.

Let the judgment of the court below be affirmed.

Cass EARP, plaintiff in error, vs. The STATE OF GEORGIA,

defendant in error.

1. Confessions must be voluntary, and without the slightest hope of benefit or

the remotest fear of injury, in order to ground the conviction for crime

thereon. 2. If the confessions go to the jury without objection, and no motion be

made to rule them out, still counsel may request the court in writing to

charge the above principle to the jury, and the refusal to do so is error. 3. The assurance by the arresting officer to a girl fourteen years old, that she

shall not be hurt, does hold out to her a hope of benefit to induce her confession, and is sufficient evidence on which to predicate a charge of this principle of law; and where a conviction depends in a considerable degree upon such confession, the evidence being circumstantial, and hardly sufficient to authorize a conviction without the aid of the confession, the court should give the principle in charge when requested, and the refusal to do so is good ground for a new trial.

Criminal law. Confessions. Evidence. Charge of Court. Before Judge McCUTCHEN. Bartow Superior Court. December Adjourned Term, 1874.

Reported in the opinion.

A. JOHNSON; A. P. WOFFORD, for plaintiff in error.

A. T. HACKETT, solicitor general, for the state.


Cass Earp, the defendant, is a negro girl some fourteen years old. She was charged and convicted of murder, in throwing a little colored child two years old into the river. The child was found dead some week or so afterwards, lower down the river, in a fish trap. The evidence was purely cir

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