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Saulsbury, Respess & Company vs. McKellar.

breach of it by the plaintiff, and there was, altogether, such conflict in the evidence that the jury might have found either way.

We should have been rather better satisfied with the verdict if it had been in favor of both defendants, instead of for the plaintiff against one of them. But if anything is for the jury, it is the credibility of witnesses, and as they have thought proper to believe the plaintiff and her husband, we will not disturb the verdict. The principles which underlie trial by jury, require that even this verdict should be spared by a reviewing court. If the judge who tried the case had set it aside, we should have thought him justified.

Judgment affirmed.

SAULSBURY, RESPESS & COMPANY, plaintiffs in error, vs

John D. MCKELLAR, defendant in error. To entitle a landlord to assert his special lien on a crop, he must prove to the

satisfaction of the jury that the crop or fund from it, which he seeks to subject, was raised on his land. The mere fact that land was rented by him to certain parties, and that these parties, or one of them, consigned cotton to certain factors, and that cotton was one of the crops made on the landlord's farm, does not cast upon the defendants, who are third persons in possession of the cotton or its proceeds, the onus of proving that the cotton was not made on the landlord's land, but on some other land,


Landlord and tenant. Liens. Before Judge HILL. Superior Court. October Term, 1874.

Reported in the opinion.

E. F. Best, for plaintiffs in in error.

HILL & HARRIS, for defendant.


McKellar rented a plantation to Peter M. and Wiley N. Curry, and took their note for rent. Some cotton was consigned by Peter M. Curry to Saulsbury, Respess & Company,

Saulsbury, Respess & Company vs. McKellar. who sold it and applied the proceeds thereof to the payment of his indebtedness to them. An effort was made by McKellar to levy a distress warrant upon the cotton, but it was sold, and proceeds applied to the payment of a debt to Saulsbury, Respess & Company before any levy could be made. McKellar had notified one of the Saulsburys of his lien on cotton raised on his farm. There was very slight evidence, if any at all, of the cotton having been raised on the farm which McKellar rented to the Currys. The court charged to the effect that if the jury believed that land was rented to the Currys by McKellar, and cotton raised on that land, that then they might infer that this cotton at Saulsbury, Respess & Company's warehouse, stored as the property of Peter M. Curry, and sold by them, was the cotton raised on McKellar's farm, and that it devolved on the defendants to show it was raised elsewhere.

We think this charge was error. The burden of proof is on the landlord to make good his special lien on this cotton. To do that, he must show that it was raised on his land ; and if he fail to do that to the satisfaction of the jury, he has no foundation for the action and must fail. We are aware of no principle of law which shifts the burden of making out his case from off his own shoulders and lays the weight thereof upon those of his adversaries, who, to say the least, are in the possession of the proceeds of the cotton lawfully and claim it as matter of right.

The section of our Code, 3759, quoted and relied upon by counsel for defendant in error, was not designed to cover a case of this sort, and to authorize such a charge of the court; and if it was so designed, we think the facts here do not make a case where the court should have changed the onus ; and that the charge, especially that the jury might draw the inference that the cotton held by defendants was raised on the land of plaintiff, because some cotton was raised there, was error. The conclusion is a complete non sequitur to the premise, as it presents itself to our view, and we reverse the judgment on the ground that the court erred in so charging the jury.

Judgment reversed.

Wilson vs. The State of Georgia.

55 324 87 551

55 324 58 82

VINCE WILSON, plaintiff in error, vs. THE STATE OF GEOR

GIA, defendant in error.

58/82. Crit. & expl.

Burglary in the night time being established, attended with larceny of meat,

flour, rice, two bolts of cloth and a lady's skirt, all stolen from within the building which was broken open, the prisoner's participation in the burglary is sufficiently made out by evidence that he was a mechanic, and that the breaking was with a tool used in a skillful manner; that next day, grains of rice were found scattered along from the building to his shop, situated in the same enclosure, some grains also being within the shop; and that on executing a search warrant in the afternoon of the same day, at the prisoner's dwelling-house, he being present, the cloth and skirt were found there concealed in his bed: the prisoner failing at the trial to offer any explanatory evidence, or any evidence of good character, but resting upon his statement, made first immediately after the goods were found by the officer in his possession, and repeated at the trial to the jury, which statement was, in substance, that he was absent when the goods were brought to his house on the night of the burglary; that he found them there on his return, and was told by his family that they were brought and left by another man.

Criminal law. Burglary. Before Judge McCuTCHEN. Whitfield Superior Court. April Term, 1875.

Reported in the opinion.

JOHNSON & McCamy, for plaintiff in error.

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


The plaintiff in error was convicted of burglary. He makes no complaint of the charge of the court, or of any ruling upon evidence. His sole reliance is on the inconclusiveness of the proof made against him. The corpus delicti of burglary in the night time was established beyond all question, and the only problem left was, who was the burglar ? The jury, on the evidence, thought it was the prisoner before them, and found him guilty. The main features of the evidence, so far as it went to implicate the prisoner, are presented briefly in the head-note. His bed was searched, and

Fraser vs. The State of Georgia.

proved to be the hiding place for some of the goods removed from the broken building. He failed to account, satisfactorily, for their possession, or for his own whereabouts on the night of the burglary. Rice was traced into bis shop all the way from the broken building, some two hundred feet, by scattered grains wasted in its removal. According to many authorities, the mere possession of stolen goods missed from the building, will not serve as a basis of conviction of burglary: 1 Whar. Cr. Law, section 729; 1 Parker's C. C., 447; Burrell on Cir. Ev., 455–6. But here, while it is the strongest evidence against the prisoner, it is not the only evidence against him. Rice was tracked to his shop; he was a workman, and the door was broken open by a rather skillful driving of a bar, so as to disable the lock at the right place; two bolts of cloth and another article, which came out of the building, were not only found at his house the next afternoon after the burglary, but they were discovered in the bed, covered up and concealed ; and he gave no account of them, except by his bare statement that he found them in the house on his return home in the night, and was told by his family that they were brought there and left by some other man. If he is not guilty, he is an unfortunate wretch in the grip of most merciless circumstances. We are willing to take the word of the jury for his guilt, based on these circumstances, and leave the case as we find it. It is not the strongest, but strong enough.

Judgment affirmed.

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JAMES J. FRASER, plaintiff in error, vs. THE STATE OF GEOR

GIA, defendant in error.

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1. On the trial of defendant for murder, all the testimony going to show mo

tive is material to the issue, because there can be no murder without malice

and no malice without motive. 2. Therefore, testimony to the effect that defendant had step-children living

with him, and who left him at night and went to deceased's residence, and

Fraser vs. The State of Georgia.

the reasons which induced them to do so, particularly the fact that he had lived in illicit cohabitation with one of the girls and wished to marry her, coupled with the other fact that deceased had taken care of these children, and refused to give them up, and resisted a habeas corpus suit for them, is

admissible as showing motive for, and malice in, the homicide. 3. Letters of defendant to the girl he had so used and wished to marry, and

to others about her, evincing great anxiety to get possession of her person, though purporting to have been written at a place where he had never been,

and without date, are admissible for the same reason. 4. Disputes amounting to the demand for the step-children by defendant and

the refusal to deliver them up by deceased, and culminating in a habeas corpus case about them, may well be termed “ a difficulty," and the charge of the court that the state claimed that there had been a difficulty between defendant and deceased, is supported by such evidence, and is not hypo

thetical. 5. The sayings of the defendant as to all matters material to the issue, are

admissible; and as the capacity of the horse he is said to have been riding for swiftness, was material on account of the distance he had to ride and the time within which he had to make it, his sayings are admissible about such capacity, as well as about everything else material, as much so as any threats

he may have made. 6. Questions of fact are for the jury, especially in cases of circumstantial evi

dence; and where no error of law has been committed, and the court has submitted to them the law in regard to such evidence and no complaint is made about the charge in this respect, and there is ample evidence to authorize the finding, this court will not interfere—the verdict being neither against the law nor the evidence.

Criminal law. Evidence. Charge of Court. Before Judge Hill Houston Superior Court. May Term, 1875.

Reported in the opinion.

LANIER & ANDERSON, Hul & Harris; H. M. HoltzCLAW; L. C. Ryan, for plaintiff in error.

CHARLES J. HARRIS, solicitor general; DUNCAN & MilLER; WARREN & GRICE, for the state.


Dr. Joseph B. Dunwoody was murdered at the door-sill of his house in Houston county under circumstances of great atrocity. He was called out between ten and eleven o'clock

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