A. C. McCalla and W. C. Munday, for plaintiff in error. C. D. Hill, Sol. Gen., for the State.

LUMPKIN, J. Judgment affirmed. All the Justices concur.

(125 Ga. 231)

LYONS v. COLLIER.

(Supreme Court of Georgia. May 10, 1906.) MUNICIPAL CORPORATIONS-VIOLATION of OrDINANCES-PUNISHMENT-HABEAS Corpus.

There being three ordinances of a city, the first, among other things, providing, under given circumstances, for the imposition of a sentence by the judge of the municipal court of a "fine," or "confinement in the station house, or both," the second providing, among other things, that upon refusal to pay any "fine" the court may by order require the person refusing "to work on the streets" of the city, and the third providing that all fines not otherwise paid may be enforced by work on the streets or public works of the city, such ordinances, relative to a sentence by the judge, and the enforcement thereof by the imposition of a fine, and the collection thereof, are to be construed together.

(a) Under such ordinances a sentence by the court imposing a fine, and directing that in default of the payment thereof the defendant do "work on the streets or public works of the city" for a time within the limit prescribed by the ordinance, was not unlawful.

(b) The sentence being lawful, the detention of the defendant, under requirement of service upon the public works of the city, after refusal to pay the fine, was not unauthorized by law, and the defendant was not entitled to a discharge under the writ of habeas corpus. (Syllabus by the Court.)

Error from City Court of Atlanta; H. M. Reid, Judge.

Application by Annie Lyons for writ of habeas corpus to H. L. Collier, superintendent of public works. Writ denied, and petitioner brings error. Affirmed.

Section 1777 of the City Code of Atlanta provides that "any person who, during the sitting of police court, or during a session of the council or general council, or board of aldermen, shall be guilty of contempt of court, or of council, or refuses to abide by any sentence or order of said court or council aforesaid, shall be fined in a sum not exceeding $50 and costs, or confinement in the station house, or both, as shall seem expedient or proper under the circumstances." Under the section just quoted, Gertrude Lyons, having been adjudged guilty of a refusal to abide a sentence of the municipal court of Atlanta, the "police court," was sentenced by that court to pay a fine of $15.75 and costs, and, in default of such payment, to work on the streets or public works of said city 30 days under direction of the superintendent of public works. She failed to pay the fine, and was placed in the charge of H. L. Collier, superintendent of public works of the city of Atlanta, and by his authority was detained in the city stockade, and required to work on the streets and public works of the city. Sections 1778 and 1779 of the City Code of Atlanta are as follows:

"Sec. 1778. The clerk of council may Issue an execution instanter, where any fine is imposed by the court, or mayor and general council, to be levied upon the goods, chattels, lands, and tenements of the person or persons fined, if the sum is not immediately paid, which execution shall bear test in the name of the mayor, and be signed officially by the clerk and be directed to the marshal of the city of Atlanta; or the court may, by order, compel any person fined, who shall fail or refuse to pay the fine, to work on the streets of said city, under the commissioner of public works, or other person having control over said works.

"Sec. 1779. When any person is convicted of any offense against the laws and ordinances of the city, before the recorder, mayor, or mayor pro tem., or other presiding officer, it shall be discretionary with the court to punish such offenders by ordering them to work on the streets or public works of the city, under the supervision of the proper officer; and payment of all fines, not otherwise paid, may be enforced by work as aforesaid."

Through the writ of habeas corpus, it was sought to obtain the discharge of Gertrude Lyons from custody, and to relieve her from execution of the sentence imposed upon her. The plaintiff did not make any question as to the legality of the conviction, or as to the legality of any of the sections of the City Code of Atlanta hereinbefore recited, but does contend that upon the subject of the penalty authorized to be imposed, section 1777 is exhaustive, and that the municipal court of Atlanta has no power to impose any penalty other than the three prescribed in that section, to wit, fine, or "confinement in the station house, or both." The defendant, Collier, asserts that the section referred to is not exhaustive on the subject, but that section 1778 and 1779 are also applicable, and therefore that the sentence of the court is lawful, and the detention of the prisoner for the purpose of executing the sentence is legal.

Moore & Moore, for plaintiff in error. J. L. Mayson, for defendant in error.

ATKINSON, J. The three ordinances quoted in the statement of facts, in so far as consistent in their provisions, are to be construed together. All are directed against offenders of the city laws, and all relate, among other things, to the enforcement of penalties for the violation of the city ordinances. Under section 1777 of the Municipal Code, it was in the power of the court, by its sentence, to have imposed a fine and also confinement in the station house. Upon the imposition of such a sentence by the court, the defendant could have served her term in the station house, and omitted to pay the fine, thus leav. ing the sentence partly unexecuted. Without further authority than that expressed in section 1777, there would have been no way of enforcing the part of the sentence which re

quired payment of the fine. To provide, among others, for just such cases, sections 1778 and 1779 were designed. By the express terms of section 1778, the clerk of council was authorized to issue execution to be levied upon the goods, chattels, etc., of the defendant, or, in lieu of issuing execution, the court was authorized to compel the defendant, upon refusal to pay the fine, "to work on the streets of the city under the commissioner of public works, or other person having control over said works.". And likewise, under section 1779, it is expressly provided that payment of all fines not otherwise paid may be enforced by work on the "streets or public works of the city." The recorder exercised the exact powers conferred by these ordinances for the collection of the fine imposed. The legality of the ordinances not being questioned, and their provisions clearly authorizing the sentence imposed by the court, it must follow that the detention of the prisoner, under the requirement of service upon the streets and public works of the city, was not illegal, and that she was not entitled to a discharge.

Judgment affirmed. All the Justices concur.

The accusation was not open to demurrer on the ground of duplicity.

2. WITNESSES REFRESHING MEMORY DENCE-EXCLUSION.

-

- EVI

If a witness, after refreshing his memory by an examination of his books as to a transaction made by himself, finally testifies from his recollection thus refreshed, such testimony is admissible.

(a) Books are the best evidence as to what they show.

(b) Refusal to rule out as a whole specified evidence, partly competent and partly incompetent, the inadmissible portion not being specified, does not furnish a legal ground of complaint.

[Ed. Note.-For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 887, 893.]

3. MASTER AND SERVANT BREACH OF CONTRACT-CRIMINAL PROSECUTION.

In order to sustain a conviction under the "labor contract" act of 1903 (Acts 1903, p. 90), it must appear that the accused contracted to perform the labor or service himself, not merely to furnish and pay for the labor, and that he has, without good or sufficient cause, failed and refused to carry out his contract. 4. SAME EVIDENCE.

The verdict was without evidence to support it, and the refusal of a new trial was error. (Syllabus by the Court.)

Error from City Court of Sandersville; J. E. Hyman, Judge.

Richard Johnson was convicted of a violation of the labor act, and brings error. Reversed.

Richard Johnson was tried on an accusation charging him, under the provisions of

the act approved August 15, 1903 (Acts 1903, p. 90), with the offense of cheating and swindling. The allegations of the accusation, so far as material here were, that the accused, on December 16, 1905, contracted "with B. E. Roughton to perform for him service as a farm laborer as cropper for the said B. E. Roughton for the year 1906, with intent then and there to procure money or other things of value thereby, to wit: $56 in money, of the value of $56, and with intent then and there not to perform said service so contracted to be done, to the loss and damage of the said B. E. Roughton in the sum of $56, and after having so contracted did procure from the said B. E. Roughton the sum of $56 in cash, with intent not to perform said service, to the loss and damage of the hirer in the sum of $56, of the value of $56, contrary to the laws of said state," etc. The defendant demurred to the accusation, on one ground, viz., "that said accusation was bad for duplicity, in that it charged and set forth two separate and distinct offenses in one and the same count." The demurrer was overruled. The trial proceeded, and B. E. Roughton, the prosecutor and the sole witness for the state testified: "On December 16, 1905, Richard Johnson made a contract with me to run a one-horse farm during this year [1906]. I was to furnish the land and the mule and half of the guano. I was also to feed the mule. The crop was to be equally divided between us. The contract was made in Washington county, Georgia. On the day the contract was made, I paid the defendant fifty-six dollars in money. I paid John Paine for him $27.60. I paid his boy $13.40 and I gave the defendant himself $10 for Christmas money. I paid this money on the faith if the contract, at defendant's request, on the day the contract was made. The defendant has failed to carry out the contract, and moved off my place since the contract was made, and he has not paid back the money. I am damaged in these amounts, because I am out of my money."

On cross-examination, the witness swore: "I did testify, at the commitment trial of the defendant that the contract was made on the 18th day of December and that I paid him something over $61 on the contract, but I have since gone to my books, and they show that the contract was made on the 16th day of December, and that the amount I paid him was $56. I was not certain what amount I paid to John Paine, until I looked at my books, but since looking at them and refreshing my memory I know it was $27.60. My books are not here in court; they are across the street in Mr. Grier's store. I did not pay John Paine any money, because he owed me, and I just credited the $27.60 to his account, which was satisfactory to him. Yes, the defendant claimed that the $13.40 I paid his boy was for the boy's half interest in a bale of cotton which the boy and John

Paine owned together, and John Paine might have said so, too, I don't remember. I got the bale of cotton, but I gave John Paine credit for it. All the money I paid this defendant on the contract was the $27.60 to John Paine, the $13.40 to defendant's son, and the $10 I paid to defendant in person. I admit that the defendant paid back the $10 before this prosecution, that he left that amount for me with my foreman. I had no contract with defendant last year; he was working on shares with John Paine on my plantation." Defendant moved to rule out so much of the foregoing testimony of the prosecutor as is italicized, on the ground that it was secondary and hearsay, that the books were the best evidence, and that the witness could not refresh his memory from the books without producing them in court. This motion was overruled. There was a verdict of guilty. Defendant moved for a new trial, which motion was overruled, and he excepted, assigning error upon the overruling of the demurrer to the accusation, and upon the refusal of a new trial.

A. R. Wright, for plaintiff in error. Howard, for the State.

Gus

FISH, C. J. (after stating the facts). 1. It is contended, for plaintiff in error, that the accusation was bad for duplicity, as it alleged in the same count "(a) that the accused made a contract with the intent to defraud, and did, by that act, defraud the prosecutor, and (b) that after having made and entered into a contract with the prosecutor, he committed fraudulent acts by which the prosecutor was damaged. We do not think the accusation open to a demurrer on the ground of duplicity. The substance of the charge was that the accused, with intent to defraud the prosecutor, entered into a contract with him, and after so doing committed the fraudulent acts by which the prosecutor was damaged. Whether the accusation was otherwise demurrable is not before us for decision.

2. The prosecutor testified that he paid the accused a designated sum of money; that three specified items made up this sum; that on a former trial he testified to a different sum; that the reason for the change in his testimony was that on the former trial he had forgotten the exact amount of one of the items, but he had subsequently refreshed his memory as to that item by referring to his books. It appears that the witness had personal knowledge of the transactions, entries of which were made on his books, as he testified that he paid the several amounts himself. He refreshed his memory as to only one item by referring to his books. He remembered the other two items. He testified: "I was not certain what amount I paid to John Paine, until I looked at my books; but, since looking at them and refreshing my memory, I know it was $27.60." He was not simply rudertaking to swear to the correctness of

information he had derived solely by consulting his books, but he ultimately testified from his recollection, as refreshed by an ex. amination of his books, to the exact amount he paid John Paine and about which he had previously been in doubt. This he could do. Shrouder v. State, 121 Ga. 615 (2), 49 S. E. 702. A portion of the testimony of the prosecutor sought to be excluded was as follows: "I have since gone to my books, and they show that the contract was made on the 16th day of December, and that the amount I paid him was $56." This was clearly inadmissible as the books themselves were the best evidence as to what appeared thereon. There was, however, no separate motion to exclude this portion of the prosecutor's testimony. The motion was to exclude as a whole that portion which we have italicized in the statement of facts, which includes the testimony we have ruled was admissible, as well as that which was inadmissible. The overruling of the motion therefore furnished no ground of complaint. "Where a motion to rule out evidence is too broad, comprehending both admissible and inadmissible evidence given by the witness named, and not distinguishing the one from the other, the motion should be denied." Birmingham Lumber Co. v. Brinson, 94 Ga. 517, 20 S. E. 437; Barnard v. State, 119 Ga. 436, 46 S. E. 644, and citations.

3, 4. The evidence was not sufficient to authorize the conviction of the accused. "Before one can be lawfully convicted of a violation of the statute [act approved August 15, 1903 (Acts 1903, p. 90)] several things, essential to constitute the offense defined, must be shown. Among them is that there was a distinct and definite contract for service; and another is that the person contracting to perform this service has, without good and sufficient cause, failed and refused to carry out his contract by performing the service." Glenn v. State, 123 Ga. 585, 587, 51 S. E. 605. There was no evidence that the accused, under the alleged contract, was to perform any service or labor himself. As to the contract the prosecutor testified: "I was to furnish nothing but the land and the mule and half of the guano, and the mule was to be fed in my lot. * * * The defendant was to furnish half of the guano and the labor, and pay for it, and he was to furnish his own supplies." The accused was to furnish the labor and pay for it. This did not mean that he was to do the labor, or perform the service himself. Under the evidence, he was not a servant or laborer, but a contractor, and did not come within the scope of the act under which the accusation was framed. Vinson v. State, 124 Ga. 19, 52 S. E. 79 and citations. Moreover, even if there had been any evidence that the accused was to perform the service or labor, there was no evidence that he refused to carry out his contract, without good and sufficient cause.

WILLIAMS v. STATE. (Supreme Court of Georgia. May 10, 1906.) 1. HOMICIDE-ASSAULT WITH INTENT TO KILL -INSTRUCTIONS.

The charge, when considered as a whole, fairly submitted the issues to the jury. The extracts from the charge upon which error was assigned were not erroneous, when considered in the light of the entire charge. If any more elaborate instructions in reference to the defendant's theory of defense, as disclosed by the evidence and his statement, were desired, they should have been made the subject of appropriate written requests.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 2005.]

2. SAME EVIDENCE.

The evidence authorized the verdict, and no sufficient reason has been shown for reversing the judgment.

(Syllabus by the Court.)

Error from Superior Court, Appling County; T. A. Parker, Judge.

Af

George Williams was convicted of assault with intent to kill, and brings error. firmed.

The accused was placed upon trial on an indictment charging him with the offense of assault with intent to murder, and was convicted. He assigns error upon the refusal of the judge to grant him a new trial. There was evidence tending to establish that the accused boarded a railway train, and when the conductor asked him for his ticket he replied he had none, and the conductor demanded his fare at the rate of four cents a mile; that the accused said he had not been in the habit of paying at that rate, and he and the conductor had some words before he paid his fare. A woman sitting by the accused during this controversy urged him to pay his fare. He pulled the money out of his pocket, and had it in his hand, and the conductor took out the fare, returned him the change, and passed on. The accused counted the money, turned to the woman, and said: "That son of a bitch took four cents a mile out of the money sure enough. get off at Sessoms, and I'm going to kill that son of a bitch." He pulled out his pistol and put it down in his pocket in a "shooting position." He got up and went down the aisle of the car, followed by the porter, who had overheard his threat, and when he got within two or three steps of the conductor he pulled his pistol to shoot the conductor, and the porter caught him, calling to the conductor, "Captain, there is a fellow about to kill you." The conductor and the porter then had a struggle with the accused, during the progress of which the pistol fired, the ball going under a seat of the car. The accused had

You

his hand on the pistol in a "shooting position," but the porter testified that it is possible that the discharge was produced by his pulling the hand of the accused. The porter was attempting to take the pistol away from him. The porter testified that he had him around his arms trying to take the pistol from him, and he was pulling his pistol in a "shooting position," having his hands on the trigger in a "drawing position," that he caught him just as he pulled the pistol from his pocket, and at that point the struggle be gan. The porter further testified that the accused was about to point the pistol at the conductor when he stopped him, and that he had seen him take the pistol from his right hip pocket and put it in his right side pocket. There was evidence for the accused tending to establish that no attempt at all was made to use the pistol, and that the struggle resulted from the effort of the conductor and the porter to take the pistol away from him.

W. W. Bennett, for plaintiff in error. Jno. W. Bennett, Sol. Gen., for the State.

COBB, P. J. (after stating the foregoing facts). It is complained that the court failed to charge the jury in reference to the law of a simple assault, and also failed to give them a form of verdict appropriate to such an offense. Under the evidence the accused was either guilty of an assault with intent to murder, or he was guilty of no offense at all, and this assignment of error is therefore without merit. The judge charged the jury: "Mere preparation to commit a crime, without any purpose to carry out the crime, that is without any undertaking to commit, of course, would not constitute the offense of assault with intent to murder. There must be some act going towards the commission of the offense, coupled with the intent to take the life of the party assaulted." Error is assigned upon this instruction upon the ground that it failed to inform the jury that there must be a physical effort to commit the crime. We do not think this assignment meritorious. The language of the charge certainly conveyed to the jury the impression that a physical effort was necessary to complete the offense, and there is in the charge nothing to indicate that it was the purpose of the judge to inform them that a mere mental determination to commit a crime would be sufficient to authorize a conviction. There were also other assignments of error upon the instruction of the judge, but if any error at all was committed, the error was not of such a character as to require a reversal of the judgment. It seems to us that the charge was full and fair. The evidence authorized the verdict. It appears that there was a quarrel between the conductor and the accused in reference to the fare to be paid, that as soon as the conductor left him, a threat to kill was made, and immediately afterwards the accused approached the conductor with his pistol in

such a position that he could carry out his threat, holding it in this position when he arrived within two or three steps of the conductor. This was certainly an assault, and in the light of the quarrel, and the threat immediately following, the intent with which the assault was made could be no other than a purpose to kill. The judge who tried the case is satisfied with the verdict, and we see no reason for reversing his judgment refusing a new trial.

Judgment affirmed. All the Justices con

cur.

(125 Ga. 262)

HEYWOOD v. STATE. (Supreme Court of Georgia. May 10, 1906.) CRIMINAL LAW-TIME OF TRIAL-TERM SUCCEEDING ACCUSATION.

The act creating the city court of Camilla (Acts 1905, p. 189, § 27) does not, in cases other than indictments transferred from the superior court, authorize the trial of a defendant in a criminal case by a jury until the "regular" or "special" term next succeeding the time of filing accusation. Accordingly a verdict of the jury rendered at the same term of the court during which the accusation was filed is unauthorized by law.

(Syllabus by the Court.)

Error from City Court of Camilla; J. H. Scaife, Judge.

Joe Heywood was convicted of cheating and swindling, and brings error. Reversed.

An accusation was filed in the city court of Camilla during the February term, 1906, charging the defendant with the offense of cheating and swindling. The defendant pleaded not guilty, and was tried by a jury at the same term of the court, and convicted. He moved for a new trial on the ground, among others, that the verdict was contrary to law. The motion was overruled, and the defendant excepted.

E. M. Davis, for plaintiff in error. Saml. S. Bennet, for the State.

ATKINSON, J. Under section 27 of the act creating the city court of Camilla (Acts 1905, p. 189) It is provided that "the defendants in criminal cases in said city court shall be tried on written accusation setting forth plainly the offense charged, founded on affidavit made by the prosecutor. Said accusation shall be signed by the prosecutor and prosecuting officer of said court. Upon such affidavit and accusation being made and filed in the clerk's office of said court, the defendant shall be asked by the judge whether he waives trial by jury. If he answers 'Yes,' the judge shall proceed to try and determine said case; if defendant shall answer 'No,' or stand mute, then the judge shall commit him for trial at the next regular term, or special term, in all cases allowing bail to defendant, to be fixed by said judge. The defendant shall not be allowed to demand indictment by the grand jury as a condition precedent to

trial." The language of this section of the act is not ambiguous, nor is the intention of the Legislature left in doubt. If the defendant, in answer to the judge's inquiry as to whether he waives trial by jury, should say "Yes," it is the duty of the judge to proceed to try the case without a jury. If he answers "No," or stands mute, then in express terms the act fixes the time of trial at the next regular term or the next special term.

It is insisted by counsel for the state that "next" means nearest, and that the nearest term is the one already in session. This is a strained interpretation of the legislatiye intent, which we do not feel authorized to follow. There must be a beginning of each term by the proper organization, and there must follow, by limitation of time or formal adjournment, a conclusion of that term. In prescribing the mode of practice, it is in the power of the Legislature to say what shall or shall not be done at the first or second term. The Legislature in this instance has exercised this power, and for reasons not necessary to consider has seen fit to expressly provide that those who waive jury trial shall be tried by the judge at the time of filing the accusation, and that those who do not waive jury trial shall be tried by a jury at the next term. The lawmakers having prescribed that procedure, the courts have no power to make it otherwise. This is a criminal case, where all laws are strictly construed-is one wherein the defendant cannot be deprived of his liberty, except under the lawful judgment of a court of competent jurisdiction. There can be no such judgment without a lawfully organized court. If the determination of the case depends upon the verdict of a jury, there could not be a lawful verdict without a lawfully organized and impaneled jury. If the jury acts at a term before the law gives it power to assume jurisdiction, it acts without authority, and its verdict is of no effect. The difficulty in this case is jurisdictional. The law has made no provision for a jury trial when such is not waived, except at a term which succeeds the filing of the accusation against the defendant. It was as much in the power of the Legislature to prescribe what cases should be tried by a jury at a term succeeding the time of accusation as it was to prescribe the substance of the accusation. In the absence of indictment, the provision of law is for a trial upon accusation; and in such case, if there be no accusation, the court is without jurisdiction because of a want of essential pleadings. Unless the defendant waived jury trial, the judge was without jurisdiction to try him, and there was no provision for trying him by jury until the "next term" of court following the time of filing the accusation. Until the arrival of such term the law did not authorize the submission of the case to a jury for disposition upon its merits.

It is insisted that the policy of the law is to try criminal cases speedily, and for this