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Daniel vs. The State of Georgia.

such a dray was seen at or about the break of day unloading at Fain's store. At all events, the two questions, whether he was an accomplice, and if so, whether he was supported by other evidence, were fairly submitted to the jury, and if they found either that he was not an accomplice, or that he was supported, if an accomplice, the verdict is sustained. They certainly could properly have found the former; for he was acquitted of the offense of receiving stolen goods; they might have found the latter, for there are circumstances, though slight, tending to corroborate Fain's evidence.

4. As to the other ground, that there is no evidence to justify the finding of the value of the goods to be more than $50 00, it is sufficient to say that the barrel of sugar and two barrels of flour acknowledged by defendant to have been carried by him where part was recovered, are worth more than that

sum ; and though but one barrel of flour was recovered, yet the clerk told Jack several barrels were missing, which testimony was admitted without objection, if it can be called testimony, and Jack himself missed as much as three barrels.

The defendant made his escape from the officer of the law, fled to Alabama, was brought back upon the requisition of the governor; the jury have found him guilty, the presiding judge before whom the trial was had approves the verdict, and we are unwilling to interfere with the verdict of the jury and the discretion of the court.

Judgment affirmed.

55 222 61 455 69 738

CHARTER DANIEL, plaintiff in error, vs. THE STATE OF

GEORGIA, defendant in error.

55 2:22 | 99 24

to

1. This court is not aware of any valid law authorizing the county

entertain a motion for a new trial. 2. The proper remedy of a defendant who has been convicted before that

court, is by writ of certiorari in the first instance; but where a motion for a new trial was made and overruled, and the writ of certiorari sued out to

Daniel vs. The State of Georgia.

such judgment, the whole record being before the superior court, it was competent for that tribunal to look into the same and to consider the errors

assigned. 3. Where a witness referred to a book in his pocket as containing a statement

of an account which was material to the issue then being tried, it was error

in the court not to require the same to be produced. 4. The judgment of guilty rendered by the court was contrary to the evi- .

dence.

County Court. New trial. Certiorari.

Certiorari. Practice in the Superior Court. Evidence. Before Judge BARTLETT. Morgan Superior Court. March Term, 1875.

Reported in the decision.

A. G. & F. C. FOSTER, for plaintiff in error.

No appearance for the state.

WARNER, Chief Justice.

The defendant was tried in the county court of Morgan county, on a written accusation, charging him with the offense of simple larceny, to-wit: at he secretly and fraudulently took and carried away a bale of cotton of the value of $60 00, with intent to steal the same. The defendant was found guilty, and a motion was made for a new trial in the county court on several grounds, which was overruled. The defendant then sued out a certiorari to the superior court, alleging the same errors complained of in the motion for a new trial in the county court, and alleged that the county court erred in overruling the motion for a new trial on the grounds specified therein. The superior court overruled the certiorari and dismissed the same; whereupon the plaintiff in certiorari excepted. 1. We are not aware that the county court had any

valid legal power or authority to grant a new trial in the case.

2. The defendant's proper remedy was by certiorari in the first instance, but inasmuch as the whole case was brought before the superior court by a writ of certiorari, it was compe

Morgan vs. Taylor.

tent for that court to look into the record of the trial of the defendant in the county court, and to consider the errors alleged therein to have been committed on the trial, in the same manner as if there had not been any motion for a new trial in the county court.

3. It appears from the evidence in the record that the defendant claimed an interest in the bale of cotton alleged to have been stolen by him; that he took it publicly in the day time from the gin-house where it was ginned; that he raised the cotton; that the extent of his interest in it depended on the settlement of the accounts between him and Reid. The county court erred in not requiring the witness, Reid, to produce the book of account against the defendant, which he admitted he then had in his pocket, inasmuch as he referred to that book of account in his testimony, as containing a statement of the defendant's indebtedness to him.

4. There is no evidence in the record of the value of the cotton alleged to have been stolen by the defendant. In our judgment the court erred in overruling the defendant's certiorari.

Let the judgment of the court below be reversed.

55 224 57 477 61

Thomas J. MORGAN, plaintiff in error, vs. Seth K. TAY

LOR, defendant in error.

47 70 713 71 709

1. A levy on sufficient personal property to satisfy the execution, undisposed

of on the face thereof, is no legal ground for withholding the execution from the jury, if it be shown, aliunde, to the satisfaction of the presiding judge, that such levy was unproductive and without injury to the de

fendant. 2. A bona fide purchase of land by parol, with payment of part of the pur

chase money, and immediate entry by the purchaser into open and exclusive possession, more than four years before the levy of the execution against the vendor, and the payment of the balance of the purchase money, and taking a conveyance within four years prior to the levy, will, if such possession be continuous, discharge the land from the lien of the judgment. In such case, the four years' possession must be open and notorious for the full term.

Morgan vs. Taylor. 3. A charge to the effect that if the defendant in fi. fa. and purchaser agreed

to keep the trade a secret, the possession under it would be no protection to the claimant, who is the purchaser, is too broad. Such an agreement is a circumstance tending to show bad faith in the sale, and to cast suspicion upon the fairness of the trade and the possession thereunder, but, by itself, it is not enough totally to destroy the claimant's right. It should be considered in connection with the explanation of the parties and the other facts of the case, and the charge of the court should have been so restricted

and guarded. 4. Where the evidence is conflicting, this court will not control the discretion

of the court below in refusing a new trial on the ground that the verdict is

contrary to the charge. 5. Diligence must be shown, and party and counsel must swear that they did

not know of the testimony at the time of the trial, before the court will

grant a new trial on the ground of newly discovered testimony. 6. Where the court erred in his charge on material points of law on which

the jury might have found their verdict without considering the real issue of fact, on which the case should have been put by the court and determined by the jury, this court will grant a new trial, unless the evidence be so decisive, and without conflict, as to have required the verdict, notwithstanding such errors in the charge.

Claim. Execution. Evidence. Judgments. Lien. Vendor and purchaser. Statute of limitations. New trial. Charge of Court. Before Judge CLARK. Sumter Superior Court. October Adjourned Term, 1874.

Reported in the opinion.

HAWKINS & HAWKINS, for plaintiff in error.

N. A. Smith; J. A. ANSLEY, for defendant.

JACKSON, Judge.

Taylor levied an execution upon a tract of land in the county of Sumter, as the property of Hooks, and Morgan claimed it. Morgan bought from Hooks, and predicated his title to the land, as against the judgment, upon the ground that he was a bona fide purchaser from Hooks, the defendant in fi. fa., and had been in possession of the land more than four years. The jury found the land subject; a motion was made for a new trial on various grounds; the motion was

Morgan vs. Taylor.

overruled and the new trial refused on all the grounds, and this refusal is assigned for error liere.

1. The first ground for the motion is that the court erred in admitting the fi. fa. to go to the jury. There was a levy on sufficient personalty to satisfy the fi. fa., but it was shown to have been unproductive, in the judgment of the court below, and we agree with him in that judgment: 6 Georgia, 392; 30 Ibid., 433.

2. The second ground is, that the court erred in charging the jury to the effect that part of the purchase money paid, with possession, was not enough to begin the holding of the land adversely to the judgment, so as to discharge it from the lien of that judgment. We think this charge was error. Payment of part of the purchase money, with possession of the land, is sufficient ground on which to base a decree for specific performance when the contract is in parol, and we are at a loss to see why it is not sufficient to begin the four years' possession adverse to the juilgment. The question is, was the purchaser in possession four years, holding as a bona fide purchaser from the defendant ? If he was, it does not matter how much he had paid for it, or what remained unpaid, unless from the little paid the bona fides of the transaction was brought in question : Code, section 3187. But in this case the evidence is uncontradicted that all the purchase money was paid within the four years and a deed made, thougli not.before or at the time of claimant's entry.

3. The third ground is that the court erred in charging to the effect that if the agreement was to keep the trade a secret, the possession under it would not protect the claimant. The question on which the case turned is, was the possession actually kept a secret, and not was it agreed that the trade should be kept secret? The agreement night have been a circumstance to show fraud, and the court might have charged it as such a circumstance to be weighed with the explanation of it by the parties, and the other facts of the case; but the mere fact that Hooks and Morgan agreed to keep the trade a secret, cannot, alone, destroy the right of the claimant. It may be a

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