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McMath vs. The State of Georgia.

forcibly and against her will, as the law says that when this act is committed upon a child under that age it is held to be forcibly and against her will. Children under that age cannot consent; hence, if the evidence shows to you that the prisoner committed the act, under this rule given you, the crime is complete, without the necessity of showing that it was forcibly and against her will.

8th. In not allowing the defendant's counsel to read the law to the jury after first reading it to the court, for the purpose of applying it to the facts of the case.

9th. Because the verdict was contrary to evidence, without evidence, and strongly and decidedly against the weight of the evidence.

1. We find no error in allowing the witness, Matilda Wells, to testify as to the age of her daughter, Dora Carter.

2. There was no error in allowing the mother of Dora Carter to testify that the defendant offered to give her $5 00 to stop the prosecution against him.

3. It was error, in our judgment, for the court to refuse to allow the defendant's counsel to ask the witness if she had not agreed and consented to drop the prosecution against the defendant if he would pay her $5 00, as her answer to this question, if in the affirmative, would have tended to show what were her motives, and might, in the opinion of the jury, have affected her credibility as a witness in relation to her other statements.

4. There was no error in allowing the witness to state what her infant daughter, Dora, told her at the time, and under the circumstances, as to the injury that had been committed upon her, and that defendant had done it, as a part of the res gesto : Code, section 3773. Whilst this evidence was competent, under the peculiar facts of this case, without an allegation in the indictment that the female upon whom the offense was committed, was an infant under ten years of age, still, we think that the court should have examined the child as to whether she understood the nature of an oath, and if, upon such examination, it was satisfied that she did, and was competent to be

McMath vs. The State of Georgia.

examined as a witness, then she ought to have been examined, otherwise not.

5. There was no error in the refusal of the court to charge as requested as to the allegation in the indictment that the offense was committed on the 10th day of October, 1875. An indictment is good although an impossible day be stated on which the offense is alleged to have been committed: Corner vs. The State, 25 Georgia Reports, 515.

6. There was no error in refusing the second request to charge the jury, in view of the evidence in the record. When a man is charged with the offense of rape, which is defined by law to be the carnal knowledge of a female forcibly, and against her will, the charge of "carnal knowledge of a female” is sufficiently definite and distinct to enable the jury to understand the nature of the offense, without specifying the particular manner in which that carnal knowledge was had as contained in the defendant's request.

7. There was no error in the charge of the court that it was not necessary to prove that the carnal knowledge of Dora by the defendant was forcibly and against her will, she being a child under ten years of age: Stephen vs. The State, 11 Georgia Reports, 226.

8. On the argument of the defendant's case before the jury, his counsel, when about to read some law to them, which bad been read to the court, for the purpose of applying it to the facts, the court stopped him, and held that he must read the law to the court, and refused to allow him to read any law to the jury, and that refusal of the court to allow him to read any law to the jury, is assigned as error. Whilst we fully recognize the court as the constitutional organ to give in charge to the jury the law, in criminal cases, and that it is the duty of the jury to receive and accept the law as given them in charge by the court as the law applicable to the case, and to apply the law so given them in charge by the court to the facts, and return a general verdict of guilty, or not guilty, still, we are not aware of any law or rule of practice, adopted by the judges in convention, that will authorize the court to prohibit The Mayor, etc., of Savannah vs. LaRoche. counsel, in the argument of criminal cases, from reading law to the jury, if they shall think proper to do so. Counsel, in their argument, may read law to the court in the hearing of the jury, or they may read law to the jury in the hearing of the court, subject to the correction of the court in its charge, which is to be considered as the authoritative exposition of the law for the consideration of the jury. In our judgment, the court erred in not allowing the defendant's counsel to read the law in his argument to the jury, on the statement of facts disclosed in the record. If the evidence in this case had been so clear and satisfactory as to the guilt of the defendant as to have required the verdict, we should not be disposed to set it aside for the errors which we have found in the rulings of the court, but the evidence is not of that character, and we therefore reverse the judgment and order a new trial.

Judgment reversed.

THE MAYOR AND ALDERMEN OF THE CITY OF SAVANNAH,

plaintiffs in error, vs. JAMES A. LaRoche, defendant in

error.

1. Savannah has statutory power to tax all private real estate within the cor

porate limits not expressly exempted by law. 2. Lands brought within the corporate limits by the act of 1838 are not so exempted.

Tax. Savannah. Municipal corporations. Before Judge TOMPKINS. Chatham Superior Court. February Term, 1875.

Reported in the opinion.

WILLIAM S. BASINGER, for plaintiffs in error.

Rufus E. LESTER; R. R. RICHARDS, for defendant.

BLECKLEY, Judge.

The power of taxation vested in the city authorities of Savannah is conferred by the acts of 1787, 1805, 1825, and

Salter vs. Taylor.

1838: See 8 Georgia Reports, 23, and the Code, section 4812. Taking all these together, we think it is pretty clear that the power exists to tax all private real estate within the corporate limits, not expressly exempted. An instance of express exemption is found in the act of 1854. Beyond the corporate limits extends a belt embraced within the jurisdictional limits, Code, sections 4844 and 4845, over which the power of taxation is not enjoyed. By the act of 1838 certain land which before lay within the jurisdictional limits was brought withio the corporate limits and subjected to all the authority of the city. This act does not, as does the subsequent act of 1854, make an exception of the power of taxation until the plan of the city shall be extended. It seems from the statement of facts agreed upon, that La Roche, the owner of some of the land brought in by the act of 1838, having paid, under compulsion of legal process, tax to the city, upon said land, sued in a justice's court to recover it back. The case was appealed to the superior court, and there judgment was rendered in his favor, the court holding that the land in question had not become taxable. We think otherwise, and reverse the judgment.

Judgment reversed.

55 310 BENJAMIN F. SALTER, plaintiff in error, vs. E. TAYLOR,

defendant in error.

61 157 63 658

1. The stopping or impeding a private way is a private nuisance.
2. Such a nuisance may be abated by a proceeding before two justices of the
peace and a jury, under sections 4094 and 4098 of the Code.

Nuisance. Roads and bridges. Before Judge CLARK.
Lee Superior Court. November Term, 1874.

Reported in the opinion.
COOK & CRISP; GEORGE KIMBROUGH, for plaintiff in

error.

Salter vs. Taylor.

R. F. LYON; G. W. WARWICK, for defendant.

JACKSON, Judge.

Taylor contracted with Salter for a right of way through the latter's land, and it was laid out, and Taylor incurred some expense in causewaying a part of it. He used it for two years, when Salter erected a fence across it. Taylor proceeded under section 4094 and the subsequent sections in the same chapter of the Code, to have the fence abated as a nuisance, by a petition to two justices of the peace, who summoned a jury, and they passed upon the case, and the fence was, by order of the court, under the finding of the jury, to be abated. Salter carried the case by certiorari to the superior court; that court sustained the verdict and juilgment below, and this ruling is assigned for error here.

1. Was the fence a private nuisance? Blackstone says, nuisance signifies anything that worketh hurt, inconvenience, or damage.” Anıl again he says, “If I have a way annexed to my estate, across another's land, and he obstructs me in the use of it, either by totally stopping it, or putting logs across it, or plowing over it, it is a nuisance:” Chitty's Blackstone, 3d book, 215, 218. This fence then was a nuisance.

2. Did Taylor pursue the proper remedy? By the common law, he could have sued in case for damages, or he could have had a writ, called an assize of nuisance, commanding the sheriff to summon a jury, to try the case and abate the nuisance, if found to be one: Chitty's Blackstone, 221. The remedy is very similar with us. The petition is addressed to two justices of the peace, who summon the jury, try the case, and abate the nuisance; or if the injured party wish, he may sue in case.

In this case he proceeded to abate the nuisance under the Code, sections 4094, 4098. This court has decided that he has this remedy to abate a private nuisance: 50 Georgia Reports, 130.

Juilgment affirmed.

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