McCrary vs. The State of Georgia. 5. There was no error in overruling the motion upon the 6th ground thereof, to wit: that one of the jurors when polled answered that he had agreed to the verdict, but had agreed to it reluctantly. If a juror agrees to a verdict, that in law is sufficient. If verdicts are to be set aside because some of the jurors agree to them reluctantly, very few verdicts in important cases would be allowed to stand. The law does not inquire as to the degree of reluctance or willingness with which a juror's mind assents to the verdict. Its only inquiry is, does he agree to it? If he does, that is sufficient. Judgment affirmed. MCCRARY vs. THE STATE OF GEORGIA. The charge in the indictment being that defendant, having been entrusted by Emma Lipscomb wi h a certain amount of money to be applied to the use and benefit of Ike Lipscomb, to whom it belonged, fraudulently converted it, etc., was not sustained by the evidence, which showed that the confidence was reposed in defendant and the trust delegated to him by Ike Lipscomb, and that Emma simply acted as the agent of Ike in handing defendant the money, which belonged to Ike. May 16, 1888. Criminal law. Indictment. Evidence. Before Judge HARRIS. Campbell superior court. August adjourned term, 1887. Reported in the decision. T. W. LATHAM, for plaintiff in error. H. M. REID, Solicitor-general, for the State. SIMMONS, Justice. It appears from the record in this case that Fillmore McCrary vs. The State of Georgia. McCrary was indicted by the grand jury of Campbell county for the offence of larceny after trust delegated, "for that the said Fillmore McCrary, in the county aforesaid, on the 22d of July, in the year 1887, having been entrusted by Emma Lipscomb with $2.50 in money, for the purpose of applying the same to the use and benefit of Ike Lipscomb, to whom the same belonged, did fraudulently convert the same to his own use, and did then and there dispose of the same, to the injury and without the consent of said Ike Lipscomb, the owner thereof, and without paying to Ike Lipscomb, the owner thereof, on demand, the full value and market price thereof." On the trial of the case the jury rendered a verdict of guilty, and the defendant made a motion for a new trial, which was overruled by the court, and he excepted. The view we take of this case renders it unnecessary to discuss any of the grounds of the motion except the first ground thereof, to wit, "because the verdict was contrary to the evidence and the law of the case." We think the court should have granted a new trial upon that ground, because, in our opinion, the evidence adduced upon the trial did not sustain the charge contained in the indictment. It will be seen by reference to the portion of the indictment above set out, that it charges that this defendant, having been entrusted by Emma Lipscomb with a certain amount of money to be applied to the use and benefit of Ike Lipscomb, to whom it belonged, fraudulently converted it, etc. We have carefully read the testimony as sent up in this record, and we think that the evidence clearly shows that the defendant was not entrusted with the money by Emma Lipscomb, but by Ike Lipscomb. According to this evidence, there was no confidence reposed by Emma Lipscomb in this defendant; nor was there any trust Turner vs. The Rome Street Railroad Company. delegated by her to this defendant; but the evidence clearly shows that the confidence was reposed and the trust delegated to him by Ik Lipscomb. It is true that the evidence shows that the act of handing the defendant the money was done by Emma Lipscomb, but it furthermore shows that the money was not hers, and that the understanding and agreement with the defendant was made and entered into by Ike Lipscomb, and not by Emma. The defendant admitted, when confronted with Roan and Golightly, that he had promised Ike Lipscomb to deliver the money to Roan. Taking the whole testimony together, it shows that it was Ike Lipscomb's money, and was to be paid to Roan for Ike Lipscomb's use and not for Emma Lipscomb's use, and that Emma was simply the agent of Ike, her only connection with the transaction being simply to deliver the defendant the money, and to repeat the instructions of Ike Lipscomb. For these reasons, we think that the State failed to make good its charge that the money was entrusted to the defendant by Emma Lipscomb; and on this ground the judgment of the court below is reversed. TURNER VS. THE ROME STREET RAILROAD COMPANY. This case was twice tried by a jury in a justice's court, who returned the same verdict both times, and the verdict was fully sustained by the evidence; this being true, it was error for the court to set the second verdict aside on certiorari. May 14, 1888. Verdict. Justice's courts. Certiorari. Before Judge MADDOX. Floyd superior court. September term, 1887. Robert Turner sued the Rome Street Railroad Company in a justice's court for injury to his hack, caused by careless driving of its car. On the trial before a jury Turner vs. The Rome Street Railroad Company. in that court, the plaintiff showed the following: He was carrying the mail from the depot of the E. T., V. & G. railroad to the post-office, and had gone part of the distance when he heard a street-car coming behind him, He started to cross the track, so that he would not have to cross it again before reaching his destination. Finding that he could not get over easily, he turned his horse to the right, and in so doing broke one of the bolts which held a shaft of the vehicle in place. By this time the car was right up on him, and persons aboard it were hollooing as loud as they could and saying, "Run over the damned nigger." He knew they would catch him if he did not run, so he put his foot on the broken shaft and held it down and whipped up his horse trying to get off, the mud being deep and there being ruts beside the rails. One of his wheels got in a rut on the inside of the track and another on the outside. When he had gone a little distance, the car struck the hack and broke it in pieces. The car was going very fast, and did not stop when it struck him but kept right on. It broke two of his wheels and shattered the others so that they would not stand much. He bought the hack a few weeks before for $50. After the collision, he obtained two new wheels and took them and the broken vehicle to one Wimpee and paid him $7.70 to fix it as well as plaintiff could afford to have it done; but it was so badly damaged that no work would make it stand, and he had to abandon it. He did all in his power to get off the the track. Did not see the car, but heard it coming. The bolt broke when it was right on him, and the shaft did not drop down. He gave no signal that anything was wrong, because he did not have time. Another of his witnesses swore that the car struck the hack and demolished it; that plaintiff was trying to get off the track; that one of his shafts was entirely v 81-22 Turner vs. The Rome Street Railroad Company. loose; that the car was going pretty fast and did not slack up much; and that if the shaft had been in good condition, plaintiff could have gotten off. Another swore that he was on the car, which was being drawn by the fastest horse the company owned; that it was heavily loaded but going fast; that the hack was on level ground before the car struck it, and persons on the car could see it wabbling round and the driver trying to get it off the track; that some of the passengers said, "Run over the damned nigger"; that the speed of the car was very little slackened before the collision; that two wheels of the hack were off the track; that the car could have been stopped very quickly; that no signal was given by the driver of the hack, but the driver of the car blew his whistle, but the plaintiff did not stop; and that from where the plaintiff first got on the track to where he was struck was about 150 yards. The defendant showed that its car was heavily loaded; that as soon as plaintiff was seen, he was signalled to get off the track both by hallooing and with the whistle; that when the car got to the top of the hill (up which it had to be pushed), plaintiff was fifteen yards ahead of it and seemed to be trying to outrun it, and when the car was within twenty steps of him he pushed to the right; that the brakes were put on the car and whistle blown, but the hack was struck; that then the car was stopped and the plaintiff asked if he was hurt; that he did not speak, but seemed to be all right, and the car passed on; that the persons in charge of the car had no notice that plaintiff's shaft was broken, or that he could not get over the rails with the shaft in that condition; and that if he had given a signal, the car would have been stopped. The defendant introduced three witnesses who swore substantially as above stated. It also introduced Wimpee, who swore that he had known the hack in |