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Earp vs. The State of Georgia.

cumstantial, and hardly sufficient to authorize a conviction without the aid of defendant's confessions of guilt. Those confessions were, that she threw the child into the river, but they were reluctantly made by her, and before she made them she said "If I tell you, won't you hurt me?” to which the reply of the constable was, “no, you shan't be hurt, I came here to arrest you, and you shan't be hurt.” This promise was, repeated to her upon her hesitating and asking the question again, and then, and only then did she make the confession. The confession went to the jury without objection, and her counsel requested the court to charge, “that in order to make her confessions evidence against her, it must appear to the satisfaction of the jury that such confessions were made voluntarily, without being induced by another by the slightest hope of benefit, or the remotest fear of injury.” The court refused so to charge, and this was the main ground of the motion for new trial, which was refused, and error is assigned thereon. The Code declares “to make a confession admissible, it must have been made voluntarily, without being induced by another, by the slightest hope of benefit, or remotest fear of injury.” The request is therefore in the very language of the Code, and should have been given to the jury, unless the defendant forfeited her right to the charge by the failure of the counsel to object to the confession, or to move to rule it out. The court below put his refusal upon this ground, and the naked question is, should a conviction for murder stand upon illegal evidence because it went to the jury without objection, when the court's attention was called to it, and he was requested to charge the law thereon, and wholly failed to do so ? We think that it should not stand, but that the unhappy, and doubtless guilty girl, should have another chance for her life, and if convicted, should be convicted according to law.

A motion to rule out the evidence would have been the safer and better practice; but if admitted, we think the law should go to the jury with it, that it might have only the weight to which it is entitled. The girl here evidently hoped that she would make something by her confession, for the

VOL. LV. 10.

Gray et al. vs. Obear.

on.

great man of the company, in her eyes, the constable, assured her that she should not be hurt, after she had expressed her apprehensions that they would hurt her. Besides, some of the witnesses heard the promise of the constable that she sbould not be hurt, and others did not, and the testimony of the latter was in before it was certain that such hopes were beld out to her to induce the confession, and in such case the counsel might well prefer not to rule out the evidence, as it was already in, but to ask the instructions of the court there

At all events, the circumstantial evidence, without the confessions, would scarcely justify the hanging of this defendant; and if her confessions were illegally extorted from her, she ought not to suffer the death penalty. Besides, we think this court has substantially ruled the point in issue: See Holsenbake vs. The State, 45 Georgia, 47; Stallings vs. The State, 47 Ibid., 572; and Nathan Irwin vs. The State, 54 Ibid., 39. These cases leave this no longer an open question in this court. Let the judgment be reversed on the ground that the court erred in not granting the new trial on the ground predicated upon the refusal to charge as requested.

Judgment reversed.

55 138 59 675 59 676 68 182 73 457

EDWIN T. GRAY et al., plaintiffs in error, vs. GEORGE S.

OBEAR, executor, defendant in error.

A bill was filed by the complainant against the defendant, as executor of his

father's will, for account and settlement. The latter answered that he held the property in controversy under the provisions of said will, as trustee for complainant, who was non compos mentis, and not as executor. He also set up, by way of cross-bill, that certain judgments had been fraudulently obtained against complainant, and that the executions issuing therefrom levied upon the aforesaid property; he therefore prayed that such plaintiffs in fi. fa. might be made parties to this litigation, and enjoined from further proceeding with their levy. The court ordered in accordance with

the prayer :

Held, error. The defendant had his remedy without bringing such third per.

sons into litigation with which they had no concern.

Gray et al. vs. Obear.

Bibb county.

Equity. Parties. Before Judge HILL. At Chambers. July 8th, 1875.

This is the second time this case has been before this court: See 5+ Georgia Reports, 231.

Reported in the decision.

R. F. LYON; J. & J. C. RUTHERFORD, for plaintiffs in

error.

LANIER & ANDERSON, HILL & HARRIS, for defendant.

WARNER, Chief Justice.

It appears from the record in this case, that an original bill had been filed by Edwin T. Gray against Obear, as the executor of his father's will, calling upon him for an account and settlement as such executor. The defendant set up as a defense to that suit that he held the property claimed, as trustee under the will of the complainant's deceased father, and was not bound to account to him as executor. On a former trial of that case which was brought here by a writ of error, the judgment of the court below was reversed and a new trial ordered, this court holding and deciding that a trust estate could not be created in this state for the sole benefit of a full grown man who is sui juris, and be conveyed to a trustee for the purpose of protecting it against his creditors for the payment of his debts, or for the purpose of depriving him from the free use and enjoyment of such property as the owner thereof. It did not appear on the face of the pleadings on the former trial that the alleged cestui que trust was non compos mentis, and therefore incapable of managing his own property; the defendant in his answer to the complainant's bill in that suit, did not allege that fact. The defendant has now amended his answer alleging that the complainant is, and was at the time of the execution of his father's will, non compos mentis, and incapable of managing his affairs. The defendant also alleges

Gray et al. vs. Obear.

in his amended answer in the nature of a cross-bill, that certain executions issued on judgments obtained against Edwin T. Gray on contracts made by him with one Harris, have been assigned and transferred by said Harris to J. & J.C. Rutherford, who have caused the same to be levied on lot number nineteen as the property of E. T. Gray, which is held by the defendant as trustee for him, the defendant alleging that the making of the contracts with Gray by Harris and obtaining judgments thereon, was a fraud upon the defendant as trustee aforesaid. The defendant, in his said answer, in the nature of a cross-bill, prays that J. & J. C. Rutherford may be made parties thereto, and that they be enjoined from proceeding to sell the property levied on as aforesaid, or any oiher property under said executions, until the further order of the court. On the hearing of the motion for the injunction as prayed for, the presiding judge granted the same; whereupon the defendants in the cross-bill, J. & J. C. Rutherford, excepted.

The original bill, and the answer thereto, which is now sought to be amended, was a suit between E. T. Gray, and Obear, the defendant, as executor of William Gray, calling upon

the latter for an account and settlement with the complainant as executor. The defendant insisted he was not liable to account to the complainant, as executor, because he held the property as trustee, and that the objects and purposes of the trust had not been executed; that was the question involved between the parties in the original suit. In our judgment, it was competent for the defendant to amend his answer by alleging that the complainant was non compos mentis for the purposes of that original suit, but we are not aware of any law, or rule of equity practice, which would authorize the defendant by a cross-bill, to make J. & J. C. Rutherford parties to that suit between Gray and Obear, the defendant therein. Why should the defendant be allowed, by a cross-bill, to compel them to be made parties to that original suit, and litigate between him and Edwin T. Gray? If the defendant has a title as trustee to the property levied on, he can interpose his claim to it. If there are any obstacles in the way of his asserting his claim to

Rowland vs. Harris.

the property in the manner pointed out by law, or if his remedy at law is inadequate for his protection, then let him file an original bill against the parties, and not force them by a cross-bill into a litigation between himself and Gray with which they had no concern. In our judgment, the presiding judge erred in making J. & J. C. Rutherford parties to the original suit between Gray and the defendant in the nature of a cross-bill, and then enjoining them, on the statement of facts disclosed in the record.

Let the judgment of the court below be reversed.

55 141 73 642

WILLIAM L. ROWLAND, executor, plaintiff in error, vs. IDA

F. HARRIS, defendant in error.
A negotiable note for value imports that it is given for a consideration, and it

devolves on the defendant, who pleads that it is without consideration, to
show the fact, and proof that a note previously given by another for the
same amount, and satisfied by the payee about the time the note sued on
was given, is insufficient to show the want of the consideration without
more, though one note was given by the father, and satisfied by him, and
that sued on was given by the daughter to the same payee.

Promissory notes. Consideration. Before Judge UNDERWOOD. Floyd Superior Court. July Term, 1874.

Reported in the opinion.

DABNEY & FOUCHE, for plaintiff in error.

Smith & BRANHAM, for defendant.

JACKSON, Judge.

This was a suit on a promissory note for $1,000 00, payable to plaintiff's testatrix or bearer, and purporting to be for value received, and dated 22d of March, 1869. The defendant put in a plea of no consideration, and on that issue the case went to the jury, who found for the defendant. A motion for a new trial was made by the plaintiff on the ground

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