Frain vs. State of Georgia.

And the Grand Jurors aforesaid, further charge and accuse the said Walter S. Frain with the offense of accessory after the fact. For that on the 15th day of February, 1869, Jordan Williams and Albert Smith, with force and arms, a certain bale of cotton" (described fully as in the first count) "fraudulently and wrongfully take and carry away, with intent to steal the same. And the said Walter S. Frain did, on the 15th day of February, 1869, receive said bale of cotton, knowing the same to have been stolen, contrary," etc.

Defendant's counsel requested the Court to give the following charges: 1st. "In an indictment time and place are material allegations, and the omission of either is not a matter of form and is not cured by pleading on the part of defendant; that the time, place and value of the property is part of the substance; that these allegations are material and must be proved. 2d. That each count in the indictment must be perfect in itself, and if one count alledges the place where the offense was committed, and the other does not, the jury has no right to look to the first count to cure the defect in the second." The Court gave the first request, with this addition: "It is sufficient, if time, place and value can be gathered from the whole indictment and evidence." He refused the second request, stating to the jury that they "could look into the whole indictment, and if they were satisfied there was enough with the evidence adduced to convince them of the guilt of the prisoner, they could so find." Their verdict was: "We the jury find the defendant guilty generally."

Frain's counsel moved an arrest of judgment, upon the ground that the indictment had no such averment of place as to give jurisdiction to the City Court of Augusta. The Court overruled the motion. Thereupon counsel for Frain moved for a new trial, upon the grounds that the Court erred in refusing said continuance, in refusing to let Frain testify to subpoenaing said witness; because said evidence of Young was inadmissible, because the verdict was contrary to the evidence, because said proceedings and remarks by the Judg were such as to prejudice the jury against Frain. With thi last ground was evidence to show that the witness who w

Frain vs. State of Georgia.

fined was told by Frain, at the term before, not to attend that term, because the case had been continued, that that was true, and that Frain never told him not to attend the term at which this trial was had. There were other grounds touching the charge of the Court, and as to newly discovered evidence, but they were not passed upon by this Court. The Judge refused a new trial, and error is assigned upon his failure to arrest the judgment, and his refusal of a new trial, upon the grounds aforesaid.

MCLAWS & GANAHL, for plaintiff in error, cited as to the arrest of judgment: Revised Code, section 4536, as to the continuance: 9th Ga. R., 375; 14th, 24; 5th, 54; as to the implied confession: Rev. Code, sec. 3740.

PRESCOTT, Solicitor General, for the State, replied, the indictment was good, under section 4535, Rev. Code; a good count may supply defects of an imperfect count: Regina vs. Waverton, 16 British Cr. Cases, 333; upon a general verdict, presumption is that it was on the good count: 10th Ga. R., 48; the objections to the indictment came too late: 7th Ga. R., Studstill's case, 34th Ga. R., 108.

McCAY, J.

1. It is with much reluctance we reverse the judgment of the Court below in this case. We have no complaint with the verdict of the jury; on the contrary, we think it proper enough under the facts as they were presented.

2. We think, too, that the motion in arrest of judgment was properly overruled. The verdict of "guilty generally" is only in accordance with the usual instruction given to the jury in cases where in one count there is a charge of an offense, and in another count a charge of a lower grade of the same offense. Receiving stolen goods, knowing them to be stolen, makes the receiver accessory after the fact to the theft Code, section 4420. A verdict of guilty generally, convicts the accused of the principal offense. This Court has held, that after verdict, one bad count in an indictment is no

Frain vs. State of Georgia.

ground for a motion in arrest of judgment. The verdict will be presumed to have been found on the good count: 11th Ga. 92; 12th Ga. 393.

3. We think, however, that the testimony of the witness, Young, was improperly admitted. Even in a civil case it was inadmissible, because evidently and in the terms, the language of the accused was used by way of an offer to compromise the claim of the witness upon him for damages, and by the Code, section 3736, it was inadmissible. As a confession, it is inadmissible, because made under the influence of a promise to settle. It is clearly within the rule of section 3740, of the Code, excluding admissions made under the influence of fear or hope of reward.

4. We are further of opinion, that this defendant did not have a fair trial. The action of the Court in dragging him from his bed and forcing him to trial, in the condition he was in, was not only harsh, but unauthorized. However bad a man may be, he is entitled, when put upon his trial for a crime, to the full use of his faculties. From all the evidence it is apparent that this man ought, during the trial, to have been in bed, and it was not only unjust to him, but unjust to the public justice of the country, to put him upon his trial under the circumstances.

5. Clearly, the prisoner may, in a showing for continuance, state, under his oath, that a witness has been subpenaed. It is a necessary part of the showing for a continuance which the rules of Court require to be under the oath of the defendant: Rules of Court, 36. He does not do this as a witness before the jury. It is for the Court alone, and has always been allowed. How much credit is to be given to it depends upon circumstances, and it was error in the Court to refuse to hear him. Infamy is now no ground of incompetency: Act of 1865 and 1866. Perhaps had the Court heard his story it would have carried conviction with it, in spite of the bad opinion the Court had, perhaps justly, of the teller of it.

6. We do not think a physician's "certificate" proper evidence before a Court of a fact required to be proven, and

Burke et al., vs. Anderson.

we say nothing, therefore, about the effect of it. These certificates were, a few years ago, very useful documents to sick soldiers, but it is not proper to receive them as evidence in the court-house.

A. T. BURKE et al., plaintiff in error, vs. ROBERT S. ANDERSON, defendant in error.

1. In the exercise of its jurisdiction to correct mistakes, equity will grant relief between the original parties and their privies in estate or in law, except as against bona fide purchasers without notice, and a judgment creditor does not, for this purpose, occupy the position of such a purchaser,

2. Sections 1947 and 1948 of our Code regulating the rights of liens existing by operation of law against unrecorded or defectively recorded mortgages, does not change the rule in equity as to the mistakes in the instruments themselves. Such mistakes are still relievable except as against bona fide purchasers without notice.

3. The judgment of a Chancellor below refusing to dissolve an injunction will not be disturbed by this Court, except in a clear case of manifest injustice.

Equity pleading. Mistake. Before Judge ALEXANDER. Pulaski Superior Court. October term, 1869.

Simon Merritt has lived very many years on a certain plantation in said county, one undivided half of which was owned by him and the other half by his son-in-law, Ruel W. Anderson. On the 2d of January, 1868, in consideration that Frisbee & Roberts, of New York, had advanced to Merritt $5000 00 to enable him to carry on his farming operations during 1868, Merritt gave them his note therefor, and as security for such advance, in the same paper, a lien upon the crop to be raised on said plantation in 1868, and a mortgage on land described therein as follows: "My said half plantation consisting of one thousand acres lying in the fourth district and county of Pulaski in said State." This paper was duly recorded. In October, 1868, Ruel W. An

Burke et al., vs. Anderson.

derson told Robert S. Anderson, who was his father, that Frisbee & Roberts were willing to take $4000 00 for said claim and advised Robert S. to buy it. They went to Hawkinsville where Roberts was, and found him willing to take the $4000 00 for the claim, but in too great haste to stop, as his train had arrived. Roberts, however, produced the note and mortgage. Robert S. Anderson saw only the back of the mortgage and agreed that his son, Ruel W., should go with Roberts to Macon, and, if he could get a good transfer, should there pay Roberts the $4000 00 and take the transfer. His son went, read over the mortgage carefully, and believ ing the description was all right, paid the $4000 00 and took the transfer.

Afterwards the undivided half of the plantation occupied by said Merritt and said Ruel W. was levied on by a common law fi. fa., and the levy decribed it as being in the twelfth district of said county.

Knowing Merritt so long as a good business man and a person of integrity, and having been told by said Ruel W., even before he bought said mortgage, etc., that Merritt had mortgaged his half of their plantation to Frisbee & Roberts, and knowing that Merritt owned no other land in said county, Robert S. Anderson took it for granted that the plantation was correctly described in said mortgage. And on the day of sale under said fi. fa. his attorney gave public notice that the land levied on was subject to said mortgage, etc., and that said mortgage, etc., belonged to said Robert S. Anderson. Burke began bidding for it, and then the attorney went to him and told him personally that the land being sold was subject to said mortgage, etc., and showed him the paper. Burke replied that it was but a crop lien and continued to bid. But others would not bid, and so said onehalf of said plantation was knocked off to Burke at $500 00, when it was worth from $3,500 00 to $4,000 00. The number of the district was not then noticed, but afterwards Robert S. Anderson found that the plantation was in the twelfth district, and that the mortgage described it as in the fourth district.