Obrázky stránek
PDF
ePub

Fry vs. Shehee.

the point that when such is the case, the omission of the little word "as," will not vitiate the process of the court.

12. The tenth ground is that the court erred in admitting the mortgage without the rule nisi and rule absolute. We think that the mortgage fi. fa. sufficiently identified the mortgage as that on which it was issued, and the fi. fa. was presuptive evidence that the foreclosure had been regular. If the claimant wished to show otherwise, he had the right to introduce the whole record.

13. The eleventh ground is that the court charged the jury that the record of a mortgage made in time is notice to all the world. We think the charge law.

So as to the twelfth ground. We think that the lien of a mortgage is good for twenty years, and that it may be foreclosed any time within that period, and that the court charged correctly.

As to the thirteenth ground, we think that if the mortgage execution sufficiently identifies the mortgage as its foundation the lien does relate back to the date of the mortgage, and we see no error in the charge to that effect.

The fourteenth ground, we think also untenable. The court charged to the effect that land held by perfect title from the state down or by prescription, may be subject to a mortgage, if the mortgage was made by the vendor under whom the tenant claimed title. We think the charge legal.

We see no error in the charge complained of in the fifteenth ground, "that actual notice of a mortgage lien created by the maker of the color of title, under which the claimant bases his prescription, will prevent any number of years' possession defeating said lien.” We understand the court to mean within the twenty years that the mortgage is alive.

14. The charge complained of in the sixteenth ground is to the effect that if the creditor indulges the debtor, such creditor being mortgagor, and the debtor mortgagee, to the detriment of purchaser of mortgaged property for value, for a consideration, until the debtor becomes insolvent, it makes the purchaser's title good; but if the indulgence is without

VOL. LV. 15.

Smith vs. Wright. consideration, it does not, unless the facts show fraud. We see no error iv this charge.

The seventeenth ground relates to the verdict being against the charge, and has been already alluded to in the former part of this opinion. We see no error in the verdict.

The same may be said of the eighteenth and nineteeth grounds. They relate to the law on the main question firsť decided, and neeil not be repeated.

15. In looking through this whole record, we see but two errors of the court, in our judgment; one, the giving his charge in part orally, when required to put the whole in writing, and the other the refusal to continue for the absence of the two witnesses subpænaed. As, however, under the view of the law of the case we have taken, and the undisputed facts, the verdict must be what it now is, we do not grant the new trial, but affirm the judgment.

Judgment affirmed.

WILLIAM P. SMITH, plaintiff in error, vs. H. G. WRIGHT,

defendant in error. The words alleged in the plaintiff's declaration, to-wit: “ Peter Smith had

told lies, and sworn to them,” were actionable per se. The plain import of the words was to charge the plaintiff with the offense of false swearing.

Slander. Before Judge HERSCHEL V. Johnson. Washington Superior Court. September Term, 1874.

Reported in the decision.

LANGMADE & Evans; JAMES K. HINES, for plaintiff in

error.

R. L. WORTHEN; H. D. D. Twiggs, for defendant.

WARNER, Chief Justice.

The plaintiff brought his action against the defendant to recover damages for falsely and maliciously saying of and

Smith vs. Wright.

concerning the plaintiff, in the presence and hearing of sundry citizens of the county of Washington, the following false and malicious words, to-wit : "that Peter Smith, (meaning plaintiff,) would steal, tell lies and swear to them, that Peter Smith had told lies, and sworn to them,” thereby meaning and intending to charge him, the plaintiff, with the offenses of perjury and larceny.' The defendant demurred to the plaintiff's declaration. The plaintiff then offered to amend it as follows, that said defendant used the following false and malicious words of and concerning plaintiff, to-wit: “that Peter Smith, (meaning plaintiff,) had sworn in the case of Almira Paradise against him, tried at the September term of said court, 1872, and had sworn falsely all the way through, thereby meaning and intending that plaintiff, wlio had testified in an equity cause pending in said court, wherein Almira Paradise was complainant and the said Henry G. Wright was defendant, meaning thereby, and intending, that plaintiff had testified falsely and corruptly in said cause, and was guilty of willful and corrupt perjury.” The court refused to allow the amendment, sustained the defendant's demurrer, and dismissed the plaintiff's action, whereupon the plaintiff excepted.

False swearing, in any matter or thing, (other than a judicial proceeding,) is an offense in this state, punishable by imprisonment in the penitentiary for not less than three

years nor longer than ten years: Code, sections 4462, 4463. The words alleged in the plaintiff's declaration " that Peter Smith had told lies, and sworn to them,” were actionable per se. The plain import of the words, was to charge the plaintiff with the offense of false swearing. If he had told lies, he had told that which was false, and if he had sworn to them, he had sworn to that which was false, and was therefore guilty of false swearing, and such would be the common understanding of those to whom such words were addressed in the common acceptation and meaning thereof. To render words actionable per se, it is not necessary that they should in express terms charge another with a crime punishable by law; it is sufficient if they impute a crime in such terms as that the

Roberts vs. The State of Georgia.

hearers understand what is meant: Lewis vs. Hudson, 44 Georgia Reports, 568. The innuendo that the defendant meant and intended to charge the plaintiff with the offense of perjury, was not necessary to sustain the charge of false swearing, which was the plain import of the words alleged to have been spoken by the defendant, and therefore, the innuendo may be considered as surplusage: Lewis vs. Hudson, 44 Georgia Reports, 572. The office of an innuendo is to explain that which is doubtful or ambiguous in the words or language employed, but cannot enlarge the meaning of words plainly expressed: Park & Iverson vs. The Piedmont Insurance Company, 51 Georgia Reports, 510. The plain import of the words alleged to have been spoken by the defendant of and concerning the plaintiff, was to charge him with the offense of false swearing, and no innuendo, or colloquium, was necessary to explain them. In our judgment the court erred in sustaining the demurrer to the plaintiff's declaration, and in refusing to allow the amendment offered thereto.

Let the judgment of the court below be reversed.

55 220 67 571 73 574 76 667

Hart ROBERTS, plaintiff in error, vs. THE STATE OF GEOR

GIA, defendant in error.

50 220 109 165

1. One who receives stolen goods, knowing them to be stolen, is an accom

plice in the larceny, and on his uncorroborated testimony, the defendant

cannot be convicted. 2. If he be acquitted of the offense of receiving stolen goods, though the

evidence shows them at his store under suspicious circumstances, the jury may well conclude that he is not an accomplice, and if the question be fairly submitted to them by the presiding judge, this court will not inter

fere. 3. Light circumstances, such as constant and easy access to the place whence

the goods are stolen, the defendant's presence thereabouts when the goods are missed, the fact that he drove a single dray there and that such a dray was seen being unloaded, about the break of day, where the stolen goods were found, may be weighed by the jury as corroborating proof, and if the presiding judge fairly submits that question, this court will not interfere.

Roberts vs. The State of Georgia.

4. Evidence that more than $50 00 worth of goods are missed by the owner,

at the time of the larceny, from the house, and found where defendant acknowledged he carried them, though it be proved that he converted only a part to his own use, and only a part was recovered by the owner, is sufficient on the question of value to sustain a verdict that defendant stole from the house goods of greater value than $50 00, and is guilty of felony.

Criminal law. Larceny. Evidence. Corroboration. Value. Before Judge HOPKINS. Fulton Superior Court. October Term, 1874.

Reported in the opinion.

GARTRELL & STEPHENS; THRASHER & THRASHER, for plaintiff in error.

John T. GLENN, solicitor general, for the state.

JACKSON, Judge.

The defendant moved for a new trial in this case two grounds : 1st. That he was convicted on the testimony of an accomplice without corroborating proof; and 2d. That there is no evidence to sustain the finding of the jury that the stolen goods were worth more than $50 00, so as to make the offense a felony.

The court overruled the motion on both grounds, and defendant excepted and assigns error here thereon.

1, 2. The stolen goods were found at the store of Fain under circumstances of some suspicion against him. He was indicted for receiving stolen goods, knowing them to be stolen, and acquitted. If he had received them, knowing them to have been stolen, he would have been an accomplice; but the question of whether he was or was not an accomplice was fairly submitted to the jury, and they were fully authorized by the testimony to find that he was not.

3. If they found he was an accomplice, still there is, in our judgment, sufficient evidence to corroborate the witness. He had access to the store of Jack, delivered coke which he hauled for him at the back door of the store, drove a single dray, and

« PředchozíPokračovat »