were the result of a mistake on his part, and he had had no communication with any member of the jury. The court overruled the motion to declare a mistrial, and this is the subject of one of the assignments of error. There was no error in refusing to declare a mistrial. There was no evidence introduced to contradict the statement of the party. His character for veracity was not attacked, and the court was justified in accepting his statement as the truth in the absence of evidence showing to the contrary, or showing that he was a person unworthy of belief.

4. There are six grounds in the motion for a new trial where the foundation of the complaint is alleged to be improper argument on the part of counsel. In each instance the argument was objected to and the objection was sustained. The assignment of error is that the court failed of its own motion to interpose and prevent the remarks, that it did not rebuke or reprimand counsel, that it did not of its own motion declare a mistrial, that it failed to instruct the jury not to consider the remarks or permit them to affect their finding. There was no motion for a mistrial. There was no motion for instructions to the jury. There was no motion to rebuke or reprimand counsel. Under these conditions, the record does not disclose a ruling of the court which can be reviewed. The alleged improper argument was made. This argument was objected to, the court stopped the argument, and no further action was invoked. The judge is the representative of the public, and the exponent of the law, and it is his duty to interpose whenever necessary to preserve the dignity of the court, or to protect the rights of the parties whose interests may be imperiled by an impropriety occurring during the trial. He is not bound to and never should await the action of a party or counsel when an impropriety occurs in his presence. The right to review the conduct of a judge on any matter occurring during the progress of the trial depends, however, upon a ruling made by him which may be made the subject of an assignment of error. A judge may fail in the discharge of his duty as the exponent of the law, but at the same time a party may lose the right to have the conduct of the judge reviewed by a failure on his part to invoke a ruling in reference to the matter. When improper argument is made by counsel, counsel for the opposite party, in order to make the action of the judge in reference to the same the basis for a review, may object to the argument and rest simply on the objection, and if the court fails to take any notice of the objection and allows the argument to proceed, this conduct may be reviewed; or he may, in addition to his objection, move for appropriate instructions to the jury, or for a reprimand or rebuke of counsel in order that the jury may be impressed with the grave nature of the impropriety which has taken place, or, if the impropriety is of a 54 S.E.-58

very grave character, he may move for a mistrial, and upon the refusal of the court to do that which ought to have been done on the motion made, whatever its nature may be, the conduct of the judge will then be a subject for review by this court. O'Dell v. State, 120 Ga. 152, 47 S. E. 577; Rawlins v. State, 124 Ga. 33, 52 S. E. 1. In the present case counsel in each instance objected to the argument, and did nothing more. The court sustained the objection, and caused counsel to desist. So far as the motion made by counsel was concerned, the court ruled in his favor, and objection cannot be taken now to some matter on which no ruling from the court was invoked.

5. Error was assigned upon the failure of the judge to instruct the jury that they should not consider the statement of deceased unless they were satisfied that it was free from all suspicion of device or afterthought. An instruction to this effect would not have been proper. The court correctly held the evidence admissible, and the weight to be given it as admitted was the only matter within the domain of the jury. The rule that a failure to give instructions as to the credibility of witnesses, the weight to be giv en to testimony, and the like, will not work a reversal in the absence of an appropriate written request on the subject, disposes of that ground of the motion for a new trial which complains that the court failed to give to the jury the rules for determining where the preponderance of evidence lay.

6. Complaint is made that the court did not submit to the jury the theory that the homicide of the plaintiff's husband was the result of an accident for which no one was to blame. The court distinctly instructed the jury that before the plaintiff could recover it must appear that the defendant was at fault, and that the deceased was not guilty of negligence; and while there is no distinct statement that if the homicide was the result of an accident there could be no recovery, it was impossible for the jury to have reached the conclusion, from what the court said, that there could be a recovery in such a case. The charge, although not long or elaborate, was filled with instructions containing the words "fault," "blame," and "negligence," in reference to the foundation of the plaintiff's claim. The charge precludes the idea of a recovery for an accident. If the defendant desired further instructions on this subject, a request for the same should have been made.

7. There are also other assignments of error upon several extracts from the charge of the court. After a careful reading of the charge as a whole, we have reached the conclusion that these extracts are not erroneous for any of the reasons assigned, if erroneous at all. If any error at all was committed in any of them, it was not of sufficient charac ter to require a reversal of the judgment. The charge was brief and pointed. It might

well have been more elaborate, but when it is taken as a whole, it clearly submitted to the jury the controlling issues in the case, that is, whether the plaintiff's husband was free from fault and whether the defendant was negligent. No intelligent jury, under the instructions of the court, could have arrived at a verdict in favor of the plaintiff unless they had reached the conclusion that the plaintiff's husband was free from fault and the defendant was negligent, and the death of the plaintiff's husband was the consequence of this negligence. There was evidence authorizing the verdict, and we see no sufficient reason for reversing the judgment. Judgment affirmed. All the Justices concur, except FISH, C. J., absent.

(126 Ga. 54)

GEORGIA INDUSTRIAL CO. v. PROVIDENT SAVINGS LIFE ASSUR. SOCIETY.

(Supreme Court of Georgia. July 28, 1906.) RECEIVER-APPOINTMENT.

Under the facts of this case and in view of the entire situation and circumstances disclosed by the pleadings and evidence, after a careful examination this court cannot say that the presiding judge abused his discretion in appointing a receiver.

(Syllabus by the Courc.)

Error from Superior Court, Chatham County; Geo. T. Cann, Judge.

Action by the Provident Savings Life Assurance Society against the Georgia Industrial Company. From an order appointing a receiver, the Industrial Company brings error. Affirmed.

Walter McElreath and W. Cecil Neill, for plaintiff in error. J. H. Gilbert, W. H. Burwell, W. L. Clay, A. H. Blackshear, Hall & Wimberly, Green, Tilson & McKinney, H. A. Johnson, Osborne & Lawrence, Lawton & Cunningham, Erwin & Calloway, Jno. R. L. Smith, and C. H. Hale, Jr., for defendant in

error.

LUMPKIN, J. Judgment affirmed. All the Justices concur, except FISH, C. J., absent.

(126 Ga. 105)

BROWN v. STATE. (Supreme Court of Georgia. July 27, 1906.) CRIMINAL LAW-APPEAL-REVIEW.

The charge of the court was not erroneous for any reasons assigned. The evidence supported the verdict, and the court did not err in refusing to grant a new trial.

(Syllabus by the Court.)

Error from Superior Court, Crisp County; Z. A. Littlejohn, Judge.

George Brown was convicted of crime, and brings error. Affirmed.

Blalock & Cobb, for plaintiff in error. F. A. H. Hooper, Sol. Gen., for the State.

(Supreme Court of Georgia. July 27, 1906.) 1. DISTURBANCE OF PUBLIC ASSEMBLAGE— EVIDENCE.

One who takes possession of the doorstep of a church and by curses and threats prevents a congregation of persons, there lawfully assembled for the purpose of conducting divine service, from entering the congregation then dispersing without conducting the services for which they had met-is guilty of a violation of the Penal Code of 1895, § 418, and a request by counsel for the defendant that the court instruct the jury that there could be no violation of the statute unless the persons assembled, having failed to enter, conducted the services on the outside of the church before dispersing, was properly refused.

[Ed. Note.-For cases in point, see vol. 17, Cent. Dig. Disturbance of Public Assemblage, §§ 1-5.]

2. SAME-INSTRUCTIONS.

It follows that a charge which in substance complied with the requirements of the principle announced in the preceding note was not erro

neous.

3. SAME EVIDENCE.

The evidence authorized the verdict and there was no error in refusing a new trial. (Syllabus by the Court.)

Error from City Court of La Grange; Frank Harwell, Judge.

Vinie Tanner was convicted of disturb ing divine worship, and brings error. Affirmed.

Gaffney & Jones and D. B. Whitaker, for plaintiff in error. Henry Reeves, for the

State.

BECK, J. Vinie Tanner was convicted of disturbing divine service. The state's evidence disclosed that she went to a certain church some time before the congregation arrived, and sat upon the doorstep. There she remained and refused to allow any one to enter, saying: "I am the truth, the way, and the light, and no one can enter here except through me." And by force and violence she kept the people out who had assembled for the purpose of divine worship, cursing them and threatening to take the life of any one who should enter. After conviction she made a motion for a new trial upon the general grounds, and because of the court's refusal to charge the jury as requested; also assigning error upon a portion of the charge as given. The motion was overruled, and she excepted.

1. The Penal Code of 1895, § 418, provides that "any person who shall, by cursing or using profane or obscene language, or by being intoxicated, or otherwise indecently acting, interrupt, or in any manner disturb,' a congregation of persons lawfully assembled for divine service, and until they are dis

persed from such place of worship, shall be guilty of a misdemeanor." In this case the evidence for the state shows that the congregation—some 20 in number-had assembled at the church in question for the purpose of having divine services, and while they did not hold the service or even enter the church, their failure to do so was the result of the indecent and improper conduct of the defendant; and although there was introduced by the accused the testimony of several witnesses to contradict the evidence against her, it is manifest that the request to charge as made by her counsel does not embody a correct principle of law, such request being in the following language: "If people start to church with the intention of assembling therein for the purpose of divine worship in the church, but fail to enter said church and no divine service is held therein, and depart without undertaking to hold divine service on the outside of such church, then there could be no violation of the statute under which the accusation is drawn in this case." If a number of persons lawfully assemble for divine worship, the mere fact that they fail to enter a church at which they may have congregated, and depart therefrom without undertaking to hold the service, will not divest of its criminal character the conduct of one, who by cursing, threatening, and other boisterous and indecent behavior, prevents the carrying out of the purpose for which such a congregation assembled. The protection of the law quoted above extends not only to the congregation while actually engaged in divine service, but it begins as soon as they have assembled at the place of holding it and until they have dispersed therefrom. Minter v. State, 104 Ga. 744, 30 S. E. 989.

2, 3. And, for the foregoing reason, the following extract from the court's charge, attacked by the defenuant as erroneous, states fairly the law of the case, and was properly given: "If you find from the evidence in this case that a congregation of persons had lawfully assembled at Springfield Baptist Church for divine service, though they had never entered the church, and, while so assembled and before dispersing therefrom. the defendant by cursing, or by using profane or obscene language, or by otherwise indecently acting, that is by quarreling and fussing and fighting, interrupted and disturbed said congregation so assembled, that this occurred in Troup county on or about the date alleged in the accusation, January 15, 1906; if you believe beyond a reasonable doubt, from all the evidence in the case, that these facts are true, then the defendant would be guilty and you should so find." And the jury having so found, and their verdict being amply supported by the evidence, the judgment of the court below will stand.

(126 Ga. 15)

MILLIGAN et al. v. FORTSON. (Supreme Court of Georgia. July 27, 1906.) DOMICILE-EVIDENCE-MUNICIPAL CORPORATIONS CITY COUNCIL.

re

The undisputed evidence in the case quired a finding that the respondent was a resident of the Third Ward in the city of Augusta at the time of his election, and that he had his domicile there; and further, that he had not done any act to change either his legal residence or domicile. The court did not err in denying and dismissing the petition of the plaintiffs for leave to file pleadings in the nature of a quo warranto.

(Syllabus by the Court.)

Error from Superior Court, Richmond County; H. C. Hammond, Judge.

Application J. H. Milligan and others for writ of quo warranto to S. A. Fortson. From the order denying the writ, they bring Affirmed.

error.

The

Milligan and others made application to the judge of the superior court of Richmond county for leave to file a petition in the name of the solicitor general for the writ of quo warranto against Samuel A. Fortson, requiring him to show by what warrant he was undertaking to fill the office of member of the city council of Augusta. In response to a rule to that effect, Fortson made answer to the application, and after hearing argument of counsel and considering the answer of respondent and affidavits supporting the same the judge refused to grant the applicants leave to file their petition for quo warranto, and dismissed their cause. following, from the written opinion filed by the judge below, presents a fair statement of the facts in the case: "In October, 1905, Fortson put tenants in possession of his house in Augusta for a term of one year; he, with his family and effects, moved into a house in Summerville which he rented for one year. There is no denial of these facts by Fortson, but in his answer he sets up these further facts: that for the past nine years he has been a resident of Richmond county, and for four years a resident of the Third Ward of the city of Augusta; that his property is located, and returned for taxes, and taxes paid thereon, in the city of Augusta; that he is an officer of the Lombard Iron Works & Supply Company, whose manufactory is located in the Third Ward, and that there he spends the working hours of each working day; that on account of the illness of his wife he was ordered by his family physician to take her for a season, particularly for the winter months, to the Summerville Heights; that he was obliged to rent a house there for a year, because he could not rent one for a shorter period; that he could not financially afford to leave his house in Augusta unrented, yet it was impossible to rent it for a shorter

year of the house in Summerville, and his

house in Augusta, was not a matter of choice with him, but a condition forced upon him by the rental custom existing in the two places; that the sole object of his leaving his house temporarily in Augusta, and removing to one in Summerville, was the restoration of his wife's health; that this temporary sojourn in Summerville was experimental, and contingent upon his wife's condition of health; that should the experiment fail, it was his intention to return to Augusta, and remain in the house of a relative in the Third Ward until he could secure possession of his own residence; that he declined to entertain a proposition made to him by a real-estate agent, for the sale of his house, that in renting it he reserved the right, and actually availed himself of it, to leave and to store therein certain household and personal effects which he did not need in the house rented in Summerville; that since his occupation of the house in Summerville, he has assumed none of the burdens, nor exercised any of the rights incident to resIdent citizenship in that municipality, but that on the contrary he has exercised all of the rights and borne all the burdens incident to resident citizenship in the city of Augusta; that it is not now, nor has it ever been, his intention to acquire a legal residence or domicile in Summerville, or to lose that which he had in Augusta; that the object and purpose of the temporary removal of his family was declared and published to the voters of the Third Ward, who, with full knowledge of the facts, elected him to council." The facts were not disputed. Fortson moved to Summerville in October, and was elected the following December as member of council for the Third Ward of the city of Augusta. Annexed to the application of the plaintiffs are copies of various portions of different ordinances, among them being the following: "The qualifications of a member of council are, that he shall have the same qualifications as a member of the House of Representatives of the state Legislature (namely, that he shall be a citizen of the United States who has attained the age of 21 years, shall have been a citizen of the state of Georgia for two years, and a resident of the county of Richmond in said state for one year); that he shall be a citizen of the ward for which he is elected; and that he shall not hold any office or appointment under council; or be interested in any contract with council." "Any member of council accepting any office or appointment, federal, state or county, or becoming interested in any contract with council, or removing from the city or from the ward for which he was elected, thereby vacates his seat in council; and if any member of council be absent from the city two months at any one time, without leave of council, council may declare his seat vacant." "That each of the wards in said city shall be entitled to three members of the city council [who] shall be resi

dents of the ward they are designated to represent."

The case comes here upon the exceptions of the plaintiffs to the dismissal of their application.

Jos. B. & Bryan Cumming, for plaintiffs in error. Lamar & Callaway and C. H. Cohen, for defendant in error.

BECK, J. Judgment affirmed. All the Justices concur, except FISH, C. J., absent.

(126 Ga. 91)

BRIDGES v. STATE. (Supreme Court of Georgia. July 27, 1906.) MASTER AND SERVANT-BREACH OF CONTRACT OF SERVICE-FRAUDULENT INTENT.

The act approved August 15, 1903 (Acts 1903, p. 90), "to make it illegal for any person to procure money or other thing of value on a contract to perform services, with intent to defraud," relates to transactions where money or other thing of value is procured with fraudulent intent, either contemporaneously or subsequently to the contract of service. Where an employé agrees to pay an existing debt due his employer by rendering to him further service, and fails to perform the service as contracted and omits to pay the debt, his failure in this regard does not constitute the offense as defined in the act referred to.

(Syllabus by the Court.)

Error from City Court of Dawson; A. M. Raines, Judge.

Henry Bridges was convicted of obtaining money under contract for services with intent to defraud, and brings error. Reversed. R. R. Marlin, for plaintiff in error. M. J. Yeomans, for the State.

EVANS, J. Judgment reversed. All the Justices concur, except FISH, C. J., absent.

(126 Ga. 105)

SOWELL v. STATE. (Supreme Court of Georgia. July 28, 1906.) 1. INDICTMENT-Demurrer-SUFFICIENCY.

Under the decision in Wells v. State, 45 S. E. 443, 118 Ga. 556, where one of the grounds of a demurrer to an indictment or presentment was that separate and distinct offenses for which separate and distinct penalties are provided were improperly joined in such indictment or presentment, but the demurrer failed to indicate what such separate and distinct offenses were, such ground was fatally defective and was properly overruled.

[Ed. Note.-For cases in point, see vol. 27, Cent. Dig. Indictment and Information, $$ 489-495.]

2. INTOXICATING LIQUORS — ILLEGAL SALEDEMURRER TO INDICTMENT.

The second ground of the demurrer, reasonably construed, merely raised the point that under the indictment, which charged, the sale of intoxicating liquor, the sale of domestic wine might be proved, that the act of 1904 regulated the granting of licenses for selling wines, and that, for this reason, the coupling of intoxicating liquors with spirituous liquors in the indictment was improper. So construed, it was not error to overrule this gound of the demurrer, whether or not the indictment was subject to

(Syllabus by the Court.)

Error from City Court of Sylvania; J. W. Overstreet, Judge.

Lovett Sowell was convicted of violation of the liquor law, and brings error. Affirmed.

A special presentment was returned by the grand jury of Screven county against Lovett Sowell, the material portions of this presentment being as follows: That the defendant, "without a license and without taking the oath prescribed by law, and without license from the proper authorities of said county, and without license from the corporate authorities of any town or city where by law the authority to grant license is vested in such corporate authorities, did sell, for a valuable consideration, a certain quantity brandy, rum, gin, whisky, and spirituous malt and intoxicating liquors and mixture of spirituous, malt, and intoxicating liquors, and did sell by retail for a valuable consideration a certain quantity of wine." The defendant demurred to this presentment on two grounds: (1) Because it charges the defendant with two separate and distinct offenses, for which there are separate and distinct punishments, and which are committed in separate and distinct ways, in one and the same count; (2) because "the first offense charged against this defendant in said indictment charges this defendant with the unlawful sale of spirituous liquors, and mixtures of spirituous liquors, and in one and the same count therewith charges this defendant with the unlawful sale of intoxicating liquors, under which said last mentioned charge the state would be authorized to prove the unlawful sale of domestic wine in quantities not less than a quart, even though this defendant were the manufacturer thereof from grapes, the product of his own vineyard in this state; there being at the time of the finding of this indictment of force in this county" the act approved August 13, 1904, regulating the sale of domestic wines (Acts 1904, p. 98) for the sale of which the commissioners of roads and revenues of Screven county had provided a license of $25. His demurrer was overruled, and he excepted pendente lite. Upon the trial of the case he was found guilty, and filed his motion for a new trial, which, being overruled, he filed his bill of exceptions complaining of the overruling of both his demurrer and motion for a new trial.

Lovett Sowell, for plaintiff in error. H.A. Boykin, for the State.

LUMPKIN, J. 1. Under the decision in Wells v. State, 118 Ga. 556, 45 S. E. 443, the first ground of the demurrer was fatally defective. In that decision it was said (page 558 of 118 Ga., page 444 of 45 S. E.): "One of the grounds of the demurrer was that 'separate and distinct' offenses, for which 'separate and distinct penalties are provided,' are improperly joined in the indictment; but the demurrer fails to even indicate what these 'separate and distinct' offenses are; and for this reason, if for no other, this ground was fatally defective." The first ground of the demurrer was therefore properly overruled.

2. It is not quite easy to understand clearly the point which is intended to be made by the second ground of the demurrer. If it were intended to make the point merely that the joinder of a charge of an unlawful sale of spirituous liquors and mixtures of spirituous liquors, together with a charge of an unlawful sale of intoxicating liquors, was improper generally, the larger part of the ground would be meaningless. Construing it altogether, we think it fairly intends to raise the point that since the passage of the act of 1904 (Acts 1904, p. 98), regulating the sale of domestic wines, a violation thereof might be shown under a charge of selling Intoxicating liquors without a license, and that for that reason this presentment coupled a charge under which the sale of domestic wine might be unlawful along with a charge of selling spirituous liquors. No question was raised as to the inclusion of malt liquors with others in the presentment. A part of the demurrer is plainly bad as being a "speaking" demurrer, in alleging that the commissioners of roads and revenues of Screven county had provided a license of $25 for selling domestic wines. Construing this ground as above indicated, it was properly overruled. Formerly the law did not require a license for the sale of domestic wine. See, on the subject, Acts 1877, p. 33; Acts 1887, p. 21; Acts 1890-91, p. 130; Pen. Code 1895, §§ 449, 450. It was held that, under a charge of the sale of wine and spirituous liquors, it was not necessary to negative the fact that the wine was domestic, but it was matter of defense to show that the wine was of a character which required no license. Kemp v. State, 120 Ga. 157, 47 S. E. 548 (4), and cases cited on page 159 of 120 Ga., page 548 of 47 S. E. Since the passage of the act of 1904 the state might base an indictment upon such special act, alleging that the wine sold was domestic wine, that the local authorities had made provision for the granting of a license, and that the defendant had failed to obtain one. not compelled to do this. law (where selling wine was prohibited) it might still accuse the defendant of selling wine without a license, leaving him, if he so desired, by way of de fense to show that the wine was domestic

But the state was Under the general without a license