Criminal law.

Harris vs. The State of Georgia.

Larceny.

Before Judge VAN EPPS.

City court of Atlanta. March term, 1888.

Reported in the decision.

F. R. WALKER, for plaintiff in error.

F. M. O'BRYAN, solicitor, for the State. SIMMONS, Justice.

Joe Harris was convicted, in the city court of Atlanta, of the offence of simple larceny in two cases. He made a motion for a new trial in both cases, on the ground. that the verdict was contrary to the evidence. motion was overruled and he excepted.

The

The evidence in substance is as follows: Harris went to the store of J. M. High and also to the store of John Ryan's Sons, and represented to them that he was the agent of Moore & Marsh, to buy certain dry-goods boxes. They sold the boxes and made out the bill against Moore & Marsh. They did not sell them to Harris, or intend the title of the boxes to go into Harris. They delivered him the possession of the boxes to be carried to Moore & Marsh. He was not the agent of Moore & Marsh, nor did they know anything about his purchasing the boxes from High and Ryan's Sons. Harris sold the boxes and appropriated the proceeds of the sale to his own use. Counsel for Harris contend that this state of facts does not constitute the crime of simple larceny. We think it does. The rule is, that "if one, meaning to steal another's goods, fraudulently prevails on the latter to deliver them to him, under the understanding that the property in them is to pass, he commits neither larceny nor any other crime by the taking, unless the transaction amounts to an indictable

Reid vs. The State of Georgia.

cheat. But if, with the like intent, he fraudulently gets leave to take possession only, and takes and converts the whole to himself, he becomes guilty of larceny; because, while his intent is thus to appropriate the property, the consent which he fraudulently obtained covers no more than the possession." 1 Bishop Crim. Law, §583, and authorities there cited. In this case, Harris fraudulently represented to High and Ryan's Sons that he was the agent of Moore & Marsh. They did not sell him the goods, nor did they intend the title to go into Harris; but they simply delivered him the custody of the goods, to be delivered by him to Moore & Marsh. He having converted the proceeds of the sale of the boxes to his own use, he was guilty of larceny. The title still remained in the vendor. Harris got the custody of the · goods wrongfully and fraudulently. Judgment affirmed.

REID VS. THE STATE OF GEORGIA.

1. The statement of the evidence in another case, set out in the bill of exceptions filed in that case, offered in this case to impeach a witness who was sworn in both cases, was properly excluded. While the statement was approved by court, the witness was not bound by the recitals contained therein as to what he had testified, it not being shown that it had been read over to him and approved by him.

(a) Besides, it was shown in this case that the statement was not carefully prepared in the other case, as counsel relied for reversal only on questions of law.

2. There was sufficient evidence to authorize the verdict.

3. A new trial will not be granted on account of newly discovered testimony which is to be used simply for the purpose of impeaching a witness.

December 22, 1888.

Evidence. Witness. New trial. Before Judge ADAMSON. City court of Carrollton. May term, 1888.

Reid vs. The State of Georgia.

Reported in the decision.

WALKER & REESE, for plaintiff in error.

C. P. GORDON, solicitor, by brief, for the State

SIMMONS, Justice.

Reid was tried and convicted, in the city court of Carrollton, of the offence of selling liquor to a minor without the written authority of his parent or guardian. He made a motion for a new trial, upon the several grounds contained therein, which was overruled by the court, and he excepted. The only grounds insisted on before us for a reversal of the judgment of the court below were (1) that the court excluded, when offered in evidence, the bill of exceptions in the case of the State vs. Dukes, by which the defendant expected to show that Awtry, the minor, who testified for the prosecution, swore on the trial of that case that he only bought liquor once at Dukes's grocery; this being offered to impeach Awtry; (2) that the verdict was contrary to law, to the evidence, and to the charge of the court; (3) the newly discovered evidence of Lindsay and Stamps.

1. There was no error in excluding the bill of exceptions in the case of the State vs. Dukes. The statement of the evidence set out in that bill of exceptions was prepared by counsel for the plaintiff in error in that case; and while it was approved by the court, the witness in this case was not bound by the recitals contained therein as to what he testified on the trial of that case, it not being shown that it had been read over to him and approved by him. Besides, it was shown by the testimony in this case that the evidence in the case of the State vs. Dukes was not carefully prepared,

The Central Bank Clock Association vs. James et al., and vice versa.

as the counsel in that case did not rely for a reversal in that case on the ground that the verdict was contrary to the evidence, but relied upon questions of law.

2. As to the second ground of the motion, we think there was sufficient evidence to authorize the finding of the jury. It was argued by counsel for the plaintiff in error that the witness Awtry was impeached, and that therefore his testimony ought not to have been believed by the jury. It is true that an attempt was made to impeach this witness, but he was sustained by other witnesses, and his good character shown; and we think the jury had a right to believe him if they saw proper.

3. The newly discovered evidence of Lindsay and Stamps was for the purpose of impeaching the witness, Awtry; and a new trial will not be granted on account of newly discovered testimony which is to be used simply for the purpose of impeaching a witness.

The other grounds of the motion were not insisted upon here.

Judgment affirmed.

THE CENTRAL BANK BLOCK ASSOCIATION vs. JAMES et al., and vice versa.

A contract by which James, as trustee, and his wife agreed to make certain property of the plaintiff yield a certain percentage "beyond all contingency and above all expenses, net of taxes, insurance or water-charges or repairs," was properly constructed not to mean that said James, trustee, and his wife should be responsible for such percentage over and above salaries of the officers of the corporation, its printing and stationery bills, etc., and such an improvement as the laying of an asphalt floor in basement rooms of such property, in addition to taxes, insurance, water-charges and ordinary repairs; and said contract was properly held to cover the commissions of rental agents for the property, as a charge to be met and deducted from the rents of the same before the application of said rents toward making up the guaranteed percentage.

October 22, 1888.

The Central Bank Block Association vs. James et al., and vice versa.

Contracts. Construction. Before Judge MARSHALL J. CLARKE. Fulton superior court. March term, 1888.

Reported in the decision.

H. D. MCDANIEL, MILLEDGE & BLALOCK, and HOKE & BURTON SMITH, for plaintiff.

N. J. & T. A. HAMMOND, for defendants.

BLANDFORD, Justice.

John H. James failed for a large sum of money, and made an assignment. In the assignment he omitted to mention certain property, known as the "Central Bank Block." The creditors organized themselves into an association and became incorporated, and afterwards filed a bill against James and his wife, claiming that this property, which was claimed by the wife, should go to them. That suit was settled amicably and a decree had, and an agreement was entered into, a part of which was as follows:

"The said party of the second part (the Central Bank Block Association) agrees and undertakes to use ordinary and reasonable diligence to make the said real estate constituting its capital profitable for the payment of a fair and just net income to the said party of the second part; and the said parties of the first part (John H. James, as said trustee, and Mrs. Susan C. James) hereby guarantee unto the said party of the second part that, after the exercise of such diligence, the stock of said corporation issued upon said property, but in amount not to exceed $400,000, shall pay the holders thereof four per cent. per annum net interest thereon, payable semiannually, commencing the first day of January, 1885, for and during the term of ten years, this guarantee being that said stock shall pay said interest in said manner, provided said diligence is exercised as aforesaid beyond all contingency and above all expenses, net of taxes, insurance or water-charges or repairs."

The present bill was filed by the Central Bank Block Association to enforce the decree of settlement. The