should have been declared. The evidence before the jury was conflicting, and the defendant was entitled to have the jury pass upon the case in a regular way, and render their verdict at a regular time and place; and he should not have been deprived of this right by the arbitrary action of the court. In the case of Riggins' Ex'rs v. Brown, 12 Ga. 271, the court allowed the jury to separate in the presence of counsel, and no objection was made. A new trial was not granted, for the reason that the separation took place in the presence of counsel, who, at the time, made no objection to the proceeding. In the case of Adkins v. Williams, 23 Ga. 222, the court refused to set aside the verdict because the jury had separated after being charged by the court, but it appeared that the jury requested leave of the court to separate to go to their supper, and this was all done in the presence of counsel for the complaining party, who made no objection to the court's granting the leave. In the case of Stix v. Pump, 37 Ga. 332, it appeared that the court, without the consent of the parties, permitted the jury to disperse in order to go to dinner, but the parties, knowing this fact, before the jury reassembled, made no objection to the jury considering the case after they had so dispersed and reassembled. It was held that such acquiescence was an implied assent to the dispersal, but the court distinctly recognizes the general rule to be that, after the jury has retired for the purpose of considering and determining a case, the court should not permit them to disperse without the consent of the parties to the case on trial. There being, in the present case, no express consent for the jury to disperse, and nothing which would authorize a holding that there was an implied consent on the part of counsel, the reception of the verdict and the failure to declare a mistrial was improper, and the judge erred in overruling the certiorari. Judgment reversed. All the justices concurring.

(107 Ga. 721)

WILLIAMS v. STATE. (Supreme Court of Georgia. May 31, 1899.)

INDICTMENT - VALIDITY-MOTION FOR NEW TRIAL WAIVER OF DEFECTS-TRIAL-HOMICIDE-INSTRUCTIONS-HARMLESS ERROR.

1. When an indictment has been returned against a defendant, charging him with the crime of murder, and it is in due form, except that there is omitted from the body thereof the names of the grand jurors, such defect cannot be taken advantage of in a motion for new trial made by the defendant after his conviction, when it appears that, through his counsel, he expressly waived the defect, consented for the solicitor general to insert the names of the grand jurors in the body of the indictment, and then filed his plea of not guilty, upon which issue alone he went to trial before the jury.

2. When the state has consented to a verdict of not guilty as to one of two defendants jointly on trial under an indictment for murder, it is not error for the court to withdraw from the consideration of the jury the statement that had been made on the trial by such defendant.

3. On the trial of a defendant for murder, it is error for the court to charge the jury as follows: "If you find that the circumstances were sufficient to excite the fears of bodily harm less than death, or such bodily harm as might reasonably cause death, such killing would then be voluntary manslaughter." But where the evidence, and even the statement of the accused itself, demanded a conviction of an offense at least as great as voluntary manslaughter, the crime of which the accused was found guilty, this court will not reverse the judgment of the court below in refusing a new trial on ac count of such error in the charge,-especially in view of the fact that the charge, as a whole, fairly presented to the jury the law governing the issues in the case.

(Syllabus by the Court.)

Error from superior court, Floyd county; W. M. Henry, Judge.

Mack Williams was convicted of voluntary Affirmed. manslaughter, and brings error.

Wright & Ewing, for plaintiff in error. Moses Wright, Sol. Gen., for the State.

LEWIS, J. Guy Williams and Mack Williams were placed upon trial in Floyd superior court under an indictment charging them with the offense of murder. Before either of the defendants pleaded to the merits of the case, the solicitor general, in open court, called attention to the fact that there was an omission to insert the names of the grand jurors in the body of the indictment. This bill had been returned during the term of the court then in session, and there was a regular entry thereon of "True bill," signed by the foreman. When the case was called, the grand jurors had been discharged; and defendants' counsel at once stated to the court, in response to above announcement of the solicitor: "We have no objection. We had rather try the case now. The solicitor can fill it in, if he wants to." Thereupon the solicitor general filled in the names of the grand jurors for the term, 22 in number,-being all that were impaneled,—and the defendants entered their pleas and went to trial. At the conclusion of the evidence, it was conceded by counsel for the state that there was no testimony to authorize a conviction of the defendant Guy Williams, whereupon the court, in his charge to the jury, withdrew from their consideration the statement made by that defendant on the trial. There was a verdict of guilty of voluntary manslaughter as to Mack Williams, and he moved for a new trial, and excepts to the judgment of the court overruling his motion.

1. One ground of the motion for a new trial is that there was no bill of indictment against the movant to give the court jurisdiction, the instrument upon which the defendant was tried being originally a blank at the place in which the grand jurors' names should have been inserted. It is claimed that the verdict was null and void-First, because a valid bill of indictment is necessary in capital cases to give the court jurisdiction, and consent cannot walve such error; and, second, because a bill of indictment cannot be amend

ed to give jurisdiction. Section 929 of the Penal Code prescribes a form for every indictment or accusation of a grand jury, and the form prescribed evidently contemplates the insertion in the body of the indictment of the names of the grand jurors who pass upon the bill. Section 955 provides that all exceptions which go merely to the form of an indictment shall be made before trial. In order to determine what is meant by the expression "merely to the form of an indictment," we must have reference to that section of the Penal Code which prescribes the form. But it is contended that the names of the grand jurors who acted on the indictment are not merely a matter of form, but that they are absolutely necessary to give the indictment any validity whatever, and that the indictment, without these names, is nothing more nor less than a blank piece of paper. We do not think, however, that, in the absence of any statute upon the subject, an indictment would be fatally defective on account of an omission therefrom of the names of the grand jurors. When an indictment charges that it was by grand jurors selected, chosen, and sworn at a particular term of court, the names of those thus officially acting upon this instrument can be readily ascertained from the minutes of the court itself, and therefore the insertion of those names in the body of the indictment is simply intended as a compliance with a mere form prescribed by the statute. It would seem that the real entry which is necessary to give the paper authenticity as an indictment by the grand jury is the indorsement of that action upon the paper, signed by the foreman of that body; and the recital in the indictment that it was found by the grand jury of a particular term, in the absence of any form prescribed by statute, would carry with it the presumption that the identical Jurors who served at that term actually passed upon the bill, and authorized the entry of the action placed thereon by the foreman. Indeed, it is probably the general practice that the writing of the names of the grand jurors in the bill of indictment is merely clerical work, which may be performed before the bill is acted upon, by the solicitor general or by the clerk of the grand jury. At one time there seems to have been some conflict of authority as to whether or not it was necessary to insert at all the names of grand jurors in an indictment, but, as far as our Investigation has extended, the very decided weight of the modern decisions upon the subject is that such form is now entirely unnecessary.

In 10 Enc. Pl. & Prac. 429, it is asserted: "An indictment itself need not state the names of the grand jurors, as this, if necessary at all, is proper matter for the caption or the record. It was formerly necessary, it seems, that the names and number of the grand jurors should appear in the caption, but it was afterwards decided otherwise; and, if it appears that the legal number consti

tuted the jury, this will be sufficient." See, also, this subject treated in 1 Bish. New Cr. Proc. 655 et seq., and authorities cited; Faulkner's Case, 1 Saund. 248a. Of course, when the statute requires the insertion of the names of the grand jurors in the body of the indictment, an omission to comply with the provision renders the instrument defective; but, if it is unnecessary without such statutory requirement, then it may be treated in the light of a mere form required by law, which a party has the right to waive, and, if he seeks to take advantage of the defect, he must do so in the manner prescribed by the law itself (that is, must make his exception before trial). In the case of Williams v. People, 54 Ill. 422, it was decided: "While it is usual, and would be more formal, to insert in the record in a criminal case the names of the persons composing the grand jury who found the indictment, yet it is not essential, to support a verdict of guilty, that the record should affirmatively show even that the requisite number of grand jurors was present at the time of the organization of the body." That was a case of murder. In the case of Dawson v. People, 25 N. Y. 399, it was held that: "After verdict and | judgment, the allegation in an indictment that it was found by 'a grand jury of good and lawful men' is sufficient, although the names or number of the grand jurors by whom it was found are not stated. If the objection that the grand jurors are not named in the caption is available at all, it must be presented on motion to quash the indictment or by demurrer." We do not know that this exact question has ever been passed upon by this court, but we think it clearly falls within principles which have been recognized by it in matters of criminal pleading. For instance, in the case of Forrester v. State, 34 Ga. 107, it was decided that, after a plea of guilty, judgment would not be arrested because a blank left in the indictment for the name of the county for which the grand jurors were sworn had not been filled up. It does seem that an omission of the name of the county where the grand jurors were selected, chosen, and sworn would be as fata! to the jurisdiction of the court as a mere omission of the names of the grand jurors. In the case of Barlow v. State, 77 Ga. 448, it appeared that, after the trial had proceeded to the extent of swearing the jury, the prosecuting attorney discovered that the accusation, as it had been amended by consent of defendant's counsel, alleged that the property stolen belonged to the accused, instead of to the prosecutor. The court allowed that defect to be amended over objection of defendant's counsel. It was held that the agreement in open court that the accusation might be changed from simple larceny to larceny from the house embraced the right of the solicitor to make a good and perfect accusation for the latter offense; and, having been made when the solicitor could have with

drawn the accusation and presented another, it was right to allow it to be consummated by the making of the amendment which was objected to. It is true, that was an accusation, and not an indictment; but the principle is the same, for the statute prescribes certain means by which such accusations shall be framed, for instance, that they shall be founded upon the affidavit of a prosecutor,and, if an agreement in open court will dispense with such formalities in the case of an accusation, we do not see why the same rule will not apply to an indictment. We therefore think that, even if the alleged defect in this indictment had not been observed until after trial, it was then too late for the defendant to make the objection. But in this case counsel for defendant not only knew of the defect before pleading to the merits, but actually waived it for the accommodation of the defendant himself, consented for the solicitor to fill in the names of the grand jurors, which was accordingly done, and went to trial on his plea of not guilty. When he pleaded, therefore, the record was perfect on its face. As this court has said in the case of Lampkin v. State, 87 Ga. 517, 13 S. E. 523, "It is not sound practice for counsel to remain silent, take the chances of acquittal for his client, and then, after conviction, urge the juror's incompetency as a ground for setting the verdict aside." Much less would it be sound practice to allow counsel to waive a defect, for his own convenience, take the chances of an acquittal, and then, after conviction, urge such defect as a reason for setting aside the verdict. Hoye v. State, 39 Ga. 719. The principle cannot be expressed in stronger language than the following from the decision in Sarah v. State, 28 Ga. 576(2): "As the prisoner may waive even a trial itself, and be capitally punished upon his own confession of guilt, he may waive every other right or privilege. The greater includes the less, or the whole the parts."

2. Error is also alleged in the motion for a new trial because the court withdrew from the jury the statement of Guy Williams, one of the defendants. The defendant in a criminal case is allowed to make such statement as he may see proper in his own defense. He cannot make such a statement in defense of any one else, though such other person be a co-defendant on trial for the same crime. Manifestly, then, when it was conceded that this defendant should have a verdict of acquittal, his case was no longer before the jury for investigation, and therefore his statement constituted no legal evidence whatever as to the guilt or innocence of the remaining defendant.

3. Exception is further taken to the following charge of the court: "If you find that the circumstances were sufficient to excite the fears of bodily harm less than death, or such bodily harm as might reasonably cause death, such killing would then be voluntary manslaughter." By reference to the entire

charge of the court, we find, upon the whole, that it gave fairly to the jury the law governing the real issues in the case. For instance, in the very next sentence after the one just quoted, the judge charged the jury as follows: "But if you find the circumstances were sufficient to so excite the fears of death, or such grievous personal injury as might reasonably cause death, at the hands of the deceased, then such killing would be justifiable homicide." The sentence excepted to was evidently a mere inadvertence on the part of the judge; for the idea expressed therein is diametrically opposite to what follows, and opposed to the principles laid down by the judge in divers other parts of the charge bearing on the law of voluntary manslaughter. We do not mean to say, however, that in a close case such an error might not require the grant of a new trial; but in this case the evidence for the state tends strongly to make out a case of murder,-certainly it is enough to authorize a conviction of this highest grade of manslaughter. Taking the defendant's own statement, we think he utterly failed to make out for himself a case of justification. He admits the killing, and. from what he says, his life was not at the time in danger, and he was not being attacked in such a way as to put a reasonably courageous man in fear of jeopardy to his life. We think, therefore, that a verdict for at least voluntary manslaughter was demanded, and for this reason the judgment of the court below overruling the motion for a new trial will not be reversed on account of the error of law above mentioned, as no other proper verdict, except for a graver offense, could be rendered on another trial.

There are a few other grounds in the motion for a new trial, but they are so utterly void of merit that we deem it unimportant to call attention to them. Judgment affirmed. All the justices concurring; LITTLE, J., in the judgment only.

(107 Ga. 738)

BROOKS v. MAIR. (Supreme Court of Georgia. May 31, 1899.)

CITY COURTS-JURISDICTION.

Under the provisions of the act abolishing the city court of Spalding county, considered in connection with the act establishing the city court of Griffin, the latter court has jurisdiction and authority to deal with and dispose of all the unfinished business of the former.

(Syllabus by the Court.)

Error from city court of Griffin; E. W. Hammond, Judge.

Action by Charles A. Mair against H. A. Brooks. Judgment for plaintiff, and defendant brings error. Affirmed.

T. E. Patterson, for plaintiff in error. T. R. R. Cobb and C. E. Hawker, for defendant in error.

LUMPKIN, P. J. A city court for the county of Spalding was established under the

provisions of the act of October 19, 1891. See Acts 1890-91, vol. 1, p. 96. At the March term, 1897, of that court a verdict was rendered in favor of Mair against Brooks, bui no lawful judgment was entered upon the same, the judge merely making the following entry under the verdict: "Judgment accordingly. This Mar. 14th, 1897." Upon this an execution was issued in Mair's favor. That court was abolished by an act approved December 14th of the year last mentioned. Acts 1897, p. 529. On December 16th of the same year the general assembly passed an act establishing "the city court of Griffin, in Spalding county." Acts 1897, p. 462. Mair thereupon presented to the new court a petition containing the necessary allegations, and praying that an order be passed quashing the above-mentioned execution, and allowing him to enter up a proper judgment nunc pro tunc. This petition was granted, and Brooks excepted. By his bill of exceptions he presents the single question whether or not the new city court had jurisdiction to grant the order of which complaint is made. His contention is that this court is an entirely distinct and separate tribunal from the original city court of Spalding county, which was abolished, and therefore could not, without express legislative authority, correct the minutes and records of the old court, and that the only remedy open to Mair was an equitable petition addressed to the superior court of that county.

Construing together all the provisions of the two acts of 1897, above cited, we have reached the conclusion that the general assembly intended to confer upon the new city court jurisdiction and authority to deal with all the unfinished business of the old city court, and, in that connection, to pass any appropriate and necessary order. The matter to which the petition presented by Mair related should certainly be regarded as unfinished business of the old court. He had a lawful verdict, but no formal judgment thereon, and, accordingly, his original action against Brooks should be considered as one which had not been finally disposed of, no proper judgment having been duly entered. The following extracts from the two acts mentioned seem to eliminate all doubt that the general assembly intended to confer on the city court of Griffin jurisdiction to pass the order to which exception is taken. The abolishing act provided: "That all cases pending in said city court of Spalding county shall be transferred to the city court of Griffin, to be disposed of as other cases therein. That all mesne and final process from the city court of Spalding county which has not been executed, shall be returnable to the city court of Griffin, and all claims and illegalities and other issues arising from the execution of such process shall be returnable as though such process had issued from the city court of Griffin.

• That all mesne and final process from the city court of Spalding county, not executed when this act goes into effect,

may be executed by the officers having the authority to execute similar papers from the city court of Griffin;" and "that all dockets, minutes, records, books and papers of the city court of Spalding county shall be turned over to the clerk of the city court of Griffin." Section 28 of the act establishing this latter court reads as follows: "Be it further enacted by the authority aforesaid, that all cases, civil and criminal, now pending and undisposed of in the city court of Spalding county shall be, and the same are hereby, transferred to the said city court of Griffin, and the same shall be tried and disposed of as other cases in the city court of Griffin; all dockets, records, books and papers of the city court of Spalding county shall be turned over to be used and disposed of by the city court of Griffin. All final and other processes heretofore issued returnable to the city court of Spalding county shall be returnable to the city court of Griffin. The judge and other officers of the city court of Griffin shall have the power and authority to enforce in the name of the city court of Griffin any and all processes in any case from the city court of Spalding county necessary to the final disposition of the same, which for any cause have not been issued and disposed of by the officers of the city court of Spalding county. All fi. fas. and processes not satisfied issued from the city court of Spalding county may be enforced and levied by the officers of and in the same manner as similar papers from the city court of Griffin." Acts 1897, p. 469. We are satisfied, in view of all these provisions, that the judge of the city court of Griffin rightly held that his court had jurisdiction to grant the order for which Mair prayed. Judgment affirmed. All the justices concurring.

(107 Ga. 733)

ALLEN et al. v. STEPHENS. (Supreme Court of Georgia. May 31, 1899.) PLEADING AMENDMENT OF PETITION-CORRECTION OF MISTAKE.

In an action for the recovery of a certain amount of money, alleged by the plaintiffs to be their proportionate part of the proceeds of certain timber sold by defendant, having been grown on land in which plaintiffs and defendant owned undivided interests, when it appeared from the petition that there were several lots of such land so owned by them in a given district and county, but it was charged in the petition that the timber was cut from lot No. 57 of this district, it was error to reject an amendment offered by the plaintiff to his petition simply changing the number 57 therein to 54; the petition having otherwise so identified the property sued for as to make it clear that the amendment offered did not add a new cause of action, but was simply for the purpose of correcting a mistake made in the original petition, in designating by the wrong number the particular lot from which the timber was cut.

(Syllabus by the Court.)

Error from superior court, Carroll county; S. W. Harris, Judge.

Action by A. W. Allen and others against Josie Stephens. Judgment for defendant, and plaintiffs bring error. Reversed.

Oscar Reese and Cobb & Bro., for plaintiffs in error. Adamson & Jackson and C. P. Gordon, for defendant in error.

LEWIS, J. The petition of plaintiffs in error in this case discloses, among other things, substantially the following facts: Larkin A. Allen died in the year 1864, leaving a will, in which, as claimed in the petition, all of the property of the testator was given to his wife for life or widowhood, and at her death or marriage it was to be equally divided among their children. The wife died in July, 1895, since which time there has been a division of the real estate among the children. The realty consisted of divers lots of land situated in the Sixth district of Carroll county, among which was lot No. 57. The plaintiffs, five in number, were children of the testator; and there were four other children still living at the time the suit was brought, three of whom were not parties to the action. The suit was brought against Josie Stephens, one of the children, and alleged, in effect, that prior to the division of the realty the defendant sold off of lot No. 57, to the Southern Bed-Spring Company, of Atlanta, Fulton county, Ga., under a contract she had with that company, a large amount of timber, as represented in the contract; that under the contract the company went upon said lot, and cut therefrom a large amount of timber, amounting to a specified value; and that, for the timber sold by Mrs. Stephens, it paid to her the sum of $275. The petition further alleged that the plaintiffs' part of said sum so received by Mrs. Stephens was $214.45, which was due them from the amount so received from said Southern Bed-Spring Company by Josie Stephens, and for which petitioners made demand after the death of the widow, and that the said Josie Stephens refused to pay the same. The action was brought to recover from her the petitioners' proportionate part of this sum. On the trial of the case it appeared from the testimony which the plaintiffs introduced that the timber referred to in the petition was not cut from lot No. 57, as alleged in the petition, but from lot No. 54, which lay in the same district and county with lot No. 57, whereupon plaintiffs moved to amend their petition by striking therefrom the number 57 wherever it occurred in the petition, and inserting in lieu thereof the number 54. The court refused to allow the amendment. It was then admitted in court that no timber had been cut from lot No. 57, but that all the timber referred to in the petition had been cut from lot No. 54, and that all the other evidence which plaintiffs proposed to introduce would have reference to that lot, whereupon the court granted a nonsuit and dismissed the case. The proposed amendment offered by the petitioners was sworn to by their attorneys and two of the plaintiffs, who stated in their affidavit that the facts set forth in the amendment were unknown to them until the day it was

offered. To the ruling of the court refusing the amendment and granting the nonsuit petitioners except, and assign the same as error in their bill of exceptions.

This case was here before, and is reported in 102 Ga. 596, 29 S. E. 443. It was brought here by the plaintiffs, who complained of error in the judgment of the court sustaining a demurrer to their petition. We may therefore regard it as settled by an adjudication of this court that the original petition set forth a good cause of action. The sole question presented by this record is whether or not the court erred in refusing the amendment offered by the plaintiffs to their petition, and in granting a nonsuit. It is contended that this amendment set forth a new and distinct cause of action, not germane to the issue presented by the original petition. The entire argument of counsel for defendant in error seems to be based upon the theory that this suit was for a trespass committed by entering upon a certain lot of land and cutting therefrom timber; but from the facts above related, touching the substantial allegations of this petition, in so far as they bear upon the issue raised in this case, it will be clearly seen that this view is an entire misapprehension of the character of the suit. It was not an action of damages to the freehold caused by cutting therefrom growing timber. It was not a suit for a tort. The bringing of the action for the purchase money of the timber that was cut from the land was tantamount really to a ratification of its sale by the defendant, and a waiver of the tort or trespass, if such it could have been considered when committed by one of several tenants in common. The subject-matter of the suit was really a certain proportionate part of the proceeds of the sale of timber in which the plaintiffs claimed an interest. Had this been an action of trespass for damages on account of injury done the freehold by trespassing upon a certain lot of land, the question would have been entirely different from what is presented by this record. It would have been necessary then to have definitely described the lot or parcel of land that had been thus damaged, and an amendment showing that an entirely different lot had been trespassed upon from that mentioned in the original petition would have apparently added a new cause of action. But we do not mean to say that even in such a case the plaintiffs would not have had a right to amend by correcting a simple mistake made as to the number of the lot, if there had been enough in the petition to amend by, by which the real lot could have been identified, and the amendment offered had shown that the defect in the petition was simply in giving the lot in question the wrong number. In this case we think there were sufficient allegations in the petition to clearly identify the particular property, and the particular fund arising from its sale, for which these plaintiffs were suing, apart from any description in the pe