(105 S.E.) executors. The petition alleged, in part, Before the trial Mrs. Sarah J. Hilton died, * "Item 6. I leave it discretionary with my executors hereinafter named, as to the time when, the manner in which, and the circumstances under which my said estate should be divided, as provided in item 5 of this will. I confer upon my said executors, or a majority of them, full power and authority to sell, either at public or private sale, any or all of the property of my estate, for the purpose of carrying out the provisions of this will. And they shall ecute any contract or instrument of writing likewise have full power and authority to exnecessary to carry out this will. "Item 7. Until the division of my estate, as provided for in item 5 of this will, shall have taken place, the income therefrom, after making provision as set forth in items 1 and 4 of this will, shall be paid over for the use and benefit of my wife and children named in said will, share and share alike, and the portion of shall be invested and used for their benefit by said income belonging to any minor children my executors, who are hereby constituted and appointed testamentary guardians for all of my children who may be minors, with full power and authority to make necessary investments and expenditures for the support, maintenance, education, and benefit of my said minor children, without making either report or returns to any court. "Item 8. I constitute and appoint my wife, Sherman and H. E. Hightower, executors of Sarah Hilton, and my two sons-in-law, J. S. this my will. They shall serve without any compensation; they shall not be required to give bond, or to make any returns to any court whatsoever. In case of disagreement among my said executors in reference to any act which they have authority to perform under this will, a majority of them shall control. judgment of my executors, I desire that they Having confidence in the integrity and business shall wind up my estate, according to the terms of this will, whenever and however they may deem best. I recommend, but do not require, that all of my interest in Alabama be disposed of in as speedy a manner as it can be done without sacrifice. The other property may be kept together and dealt with and managed in such way as my executors may deem to the best interest of my estate." In effect the trial court held that the will did not create a trust within either the reason or letter of the rule announced in Trustee v. Augusta, supra, directed a verdict for the plaintiffs, and entered a decree enjoining the municipality as prayed. The city excepted. tiff in error. ants in error. GEORGE, J. (after stating the facts as above). In Trustees of the Academy of Richmond County v. Augusta, 90 Ga. 634, 17 S. E. 61, 20 L. R. A. 151, it was held that choses in action in the hands of trustees were taxable to the trustees at the domicile of the trustees, and that where one of the trustees resided within and two resided without the limits of a municipal corporation, the pro rata share of the trustee residing within the limits of the corpo R. A. Hendricks and J. P. Knight, both of Nashville, for plaintiffs in error. W. D. Buie and J. D. Lovett, both of Nashville, for defendants in error. FISH, C. J. Judgment affirmed. All the ration was taxable by the municipality. tion of the office of the executors as such. tention of the testator to end the duties of the executors at any point of time, and to require them thereafter to constitute and set up one or more trusts, to be held and managed as such for the interest of the beneficiaries. We are of the opinion that the court correctly construed the will. Under the admitted facts, the verdict for the plaintiffs was properly directed. Judgment affirmed. All the Justices concur. (159 Ga. 707) MARSHALL et al. v. CLEMENTS et al. (No. 1837.) (150 Ga. 746) (No. 1931.) (Supreme Court of Georgia. Dec. 16, 1920.) (Syllabus by Editorial Staff.) New trial 70-Denial not error, when verdict supported by evidence. SMITH V. GERRELL et al. Where the verdict was supported by the evidence, it was not error to overrule a motion for a new trial, made on the usual general grounds. Error from Superior Court, White County; J. B. Jones, Judge. Suit between B. P. Smith and Bill Gerrell and others. Judgment for Gerrell and others, and Smith brings error. Affirmed. C. H. Edwards and T. F. Underwood, both of Cleveland, for plaintiff in error. Underwood & Henderson, of Cleveland, and W. A. Charters, of Gainesville, for defendants in error. HILL, J. No error is assigned on any ruling of the court made on the trial of the case. The motion for new trial was on the usual general grounds. The verdict was sup (Supreme Court of Georgia. Dec. 15, 1920.) ported by the evidence, and the court did not sy as to location of schoolhouse site must be determined under existing laws, and equity will not entertain jurisdiction. A controversy as to the location of a site for a school building and the erection of a schoolhouse thereon, in a school district wherein an election has been held to determine the question whether bonds should be issued for the purpose of building a schoolhouse, and the result thereof declared in favor of such issuance, must be determined under existing laws respecting the administration of the public school system, and a court of equity will not entertain jurisdiction of the subject, but will remand the parties to the controversy to the statutory remedy. Edge v. Garrett, 138 Ga. 93, 74 S. E. 758, and cases cited. Accordingly, under the facts of this case, the refusal of an interlocutory injunction was not error. (Syllabus by the Court.) 1. Husband and wife 299(1)-Reconciliation pending suit for alimony did not prevent judgment after subsequent separation. Where upon a separation of husband and wife a petition was brought for temporary alimony, and while this was pending the parties resumed cohabitation, but no order was taken dismissing the suit, and the parties after a short time again separated, and the suit for alimony was prosecuted, a judgment rendered therein was not void on the ground that the Error from Superior Court, Berrien Coun- court was without jurisdiction, and that there ty; R. G. Dickerson, Judge. Proceedings between L. M. Marshall and others and H. W. Clements and others. Judgment for the latter, and the former bring erzor. Affirmed. were no pleadings authorizing the judgment. It does not appear from the evidence that the court abused his discretion in the allow (105 S.E.) ance of alimony, and in adjudging that the husband was in contempt for his failure to pay the same, and in refusing to reduce the amounts previously allowed. (Additional Syllabus by Editorial Staff.) 3. Contempt 66(6) — Contention not presented by bill of exceptions not reviewable. On proceedings in error to review an order adjudging defendant in contempt, the contention that the order left the duration of the jail sentence to be determined by the sheriff cannot be considered, when such ground of exception is not taken in the bill of exceptions. | mony, and had no knowledge of it; but his attorney appeared for him, and this judgment was entered. [1] It is insisted by plaintiff in error that, even if there was a suit for alimony, it had been dismissed. But the record does not show that an order dismissing the suit had ever been taken. Plaintiff in error, however, contends, further, that if there was no order taken dismissing the suit for alimony, it was automatically dismissed by the cohabitation of the parties after the institution of the suit, and that though the parties separated again, the former suit was Error from Superior Court, Dougherty functus officio and could no longer be proseCounty; W. M. Harrell, Judge. BECK, P. J. Mrs. Leila Fountain brought a petition against her husband, Henry Fountain, and prayed that a rule be issued requiring him to show cause why he should not be attached for contempt because of his failure to comply with the terms of a judg ment formerly rendered in the superior court, requiring him to pay the petitioner stated sums as temporary alimony. Upon the hearing of this petition, after the introduction of evidence by petitioner and the respondent, the court adjudged the defendant in contempt, and issued an order directing the sheriff to confine him in jail in case he further failed to pay the alimony in accordance with the terms of the court's judgment. The defendant excepts to this order, and says the court was without jurisdiction to pass the same, and that it was unauthorized by the evidence in the case; that he had never been served with a copy of the petition in the suit upon which the judgment for alimony was based, and that the judgment for alimony was rendered without his knowledge or consent; and that if the attorney of record consented to the same he was unauthorized to do so. 1. It appears from the record that a short time after the marriage of the parties to this case they separated and the wife brought a petition for alimony. While this was pending there was a reconciliation, and the husband and wife resumed cohabitation. They again separated, and the suit for alimony formerly instituted was prosecuted, and resulted in the judgment referred to in the foregoing statement of facts. The plaintiff in error in his pleadings avers that he had never been served with the suit for ali cuted. It may be true that when the reconciliation between husband and wife took place and cohabitation was resumed the husband would have been entitled, as a matter of course, to have the proceedings for allmony then pending against him dismissed, and the case stricken from the docket. But this was not done, and when the second separation took place between the parties, and the petitioner pressed the suit to a judgment, such judgment was binding upon the defendant. The defendant claimed that he was not served with the petition, and had no notice of the pendency of the same. There is evidence in the record authorizing No traverse of the official return in the case the court to find against this contention. appears in the record, and the attorney for the defendant appeared. There is evidence in this record showing that the husband afterwards recognized the right of the counsel appearing for him to represent him. Consequently the court did not err in entertaining the suit and entering the judg ment therein. ant in contempt recited that he then owed [2, 3] 2. The order adjudging the defendhis wife, under the judgment for alimony, the sum of $50, and that he should pay $10 per week as future alimony, payable on the last day of each week; and further directed that, unless said sum should be paid within five days from the date of it, the defendant be taken in custody by the sheriff of the county and confined in the common jail till the amounts due under the judgment in the case should be paid, including the sum of $10 per week, which should accrue. It does not appear under the evidence that the court abused his discretion in ordering the payment of this amount, or in refusing to reduce the amount allowed as alimony. The ability of the respondent to pay the amount allowed was a matter resting in the discretion of the court under the evidence. In the brief of counsel for the plaintiff in error it is urged that this order was illegal, because it left to the sheriff the determination of the duration of the jail sentence. This ground of exception, however, is not | ground of the amended motion for a new trial taken in the bill of exceptions, and for that does not show what objection, if any, was urged reason it is not decided whether this is a to the question. valid ground of exception to the judgment 3. Homicide 297, 309 (2) Instruction on justifiable homicide and manslaughter held not necessary. There being nothing in this case to authorize the jury to consider the issue as to whether the killing was justifiable or was manslaughter, it was not error hurtful to the accused for the court to instruct the jury that, when an unauthorized killing occurs, the law presumes that it was done with malice, unless the proof shows a lawful killing; that, in the absence of all else, the law implies that it was done with malice aforethought. 5. Criminal law 805(1), 1144(14) Presumed in absence of objection that court charged rule applicable to circumstantial evidence; instruction on reasonable doubt need not be given in connection with instruction as to circumstantial evidence. The court's charge to the jury that, if they were satisfied beyond a reasonable and moral certainty and beyond a reasonable doubt that the defendant was guilty of murder, they should so find, was not error. 6. Criminal law 1059 (2)-Exception to exclusion of evidence must show objection to question. The exception to the ruling of the court admitting the evidence set forth in the sixth 7. Criminal law 918(1) not ground for a new trial. Refusal of view The refusal of the court to allow the jury to visit and view the premises, the scene of the alleged crime, is not a good ground for the grant of a new trial, as under the facts of this case that matter was within the discretion of the court. 8. Newly discovered evidence insufficient. The newly discovered evidence, which apparently could not have been discovered before the trial in the exercise of proper diligence, is not of such character as to authorize a reversal of the judgment of the court below refusing a new trial. Atkinson, J., dissenting in part. Error from Superior Court, Oglethorpe County; W. L. Hodges, Judge. Evans Pope was convicted of murder, and he brings error. Affirmed. Hamilton McWhorter, Jr., and Joel Cloud, both of Lexington, and Spencer R. Atkinson and F. A. Hooper & Son, all of Atlanta, for plaintiff in error. A. S. Skelton, Sol. Gen., of Hartwell, W. W. Armistead, of Lexington, Paul Brown, of Elberton, R. A. Denny, Atty. Gen., and Graham Wright, Asst. Atty. Gen., for the State. BECK, P. J. Evans Pope was tried under an indictment charging him with the offense of murder; and the jury trying the case returned a verdict of guilty, with a recommendation of life imprisonment. The defendant's motion for new trial was overruled. [1] 1. The court in his charge to the jury defined malice as follows: "Malice is a state of mind or intention to kill under such circumstances as the law would not justify nor in any way excuse the intention if the killing occurred. It is the deliberate intention unlawfully to take the life of a human being under such circumstances as would not justify or excuse that intention if the killing occurred." trial. While not entirely accurate, the charge as given is not ground for the grant of a new Mann v. State, 124 Ga. 760, 53 S. E 324, 4 L. R. A. (N. S.) 934; Worley v. State, 136 Ga. 231, 71 S. E. 153. If the defendant desired a more precise definition of malice, one more nearly adapted to his theory of the case under the facts and circumstances proved, it should have been requested of the court. [2] 2. The court gave to the jury the following instructions: "The defendant in this case by his plea contends that he did not fire the fatal shot that killed the deceased. The state, on the other hand, charges and attempts to prove that the (105 S.E.) defendant did fire the fatal shot that resulted theory that the killing was justifiable or was in the death of the deceased; and that forms manslaughter. The testimony of one of the the issue for you to try in this case." No witness claiming to be an eyewitness to the shooting testified that the defendant fired the deadly shot. The defendant himself in his statement, in effect denied shooting at all. He did not say expressly that he did not shoot, but his statement, taken in its entirety, amounts to a denial upon his part that he did the shooting which resulted in the death of McLendon. He recites in that state ment how his daughter jumped out of a window and he went up the road in pursuit of her, and how, on the road, he met one Horace Johnson and inquired of him if the latter had met any one, to which Johnson replied in the affirmative, naming the place. The accused then states that he then went further along the road, walked up to the door, knocked on it two or three times, and that after a while "they shot; they shot again; and I heard somebody talking very low, and somebody came to the door and said, 'I don't want to kill you.'" Thereupon, the defendant states, he told his wife and requested her to go with him, "and she went up there with me, and she knocked on the door, and they wouldn't let her in, and she came back. We got in the car and went down the road and went back home, and that is the way it was." The statement is very vague and indefinite as to how far the prisoner followed his daughter; it barely indicates what house he went to and what he did there. But upon the vital question as to whether he fired a gun or pistol the statement makes a practical denial that he shot. says that he knocked on the door, "and they shot." The court had the right to charge the jury on the theory that the defendant denied the shooting. He [3] 3. In the absence of a contention upon the part of the defendant that the killing was justifiable or that it was voluntary manslaughter, the court was not bound to present the issues as to whether the killing was justifiable homicide or manslaughter. We do not mean that it was necessary for the defendant distinctly to claim in his statement that the killing was manslaughter or justifiable homicide. If he had introduced witnesses whose testimony showed that the defendant did the killing under circumstances that would render it justifiable or reduce it from murder to manslaughter, then the court should have charged upon the subject of justifiable homicide or manslaughter. But there is nothing in the evidence that presented the state's witnesses that he heard Evans Pope's voice outside of the house saying, "These negroes have shot at me three times, and I ain't done nothing," which was admitted as a part of the res gestæ, did not require a charge upon justifiable homicide or manslaughter. The court charged the jury that "When an unauthorized killing occurs, the law presumes it was done with malice, unless the proof shows a lawful killing; in the absence of all else, the law implies that it was done with malice aforethought." Under the facts of this case, this charge is not error. [4] 4. The court's charge to the jury that, if they believed any witness had sworn willfully and knowingly falsely, the testimony of such witness should be disregarded, unless so corroborated by circumstances or other evidence unimpeached as to be irresistible, states the rule too broadly, and it would have been more correct to have charged the language of the statute; but the charge does not require the grant of a new trial. See the cases of Ivey v. State, 23 Ga. 576; Fishel v. Lockard, 52 Ga. 633; Pierce v. State, 53 Ga. 365. The [5] 5. Nor did the court err in instructing the jury that, if they were satisfied beyond a reasonable and moral certainty and beyond a reasonable doubt that the defendant was guilty of murder, they should so find, giving them the form of verdict in that case. evidence upon which the defendant was convicted was circumstantial, but there is no complaint that the court did not charge the rule of evidence which should be given in cases based upon circumstantial evidence. It is therefore to be presumed that he did. The mere fact that he did not charge it in connection with the charge last quoted does not render that charge erroneous. [6-8] 6-8. The rulings made in headnotes 6, 7, and 8 require no elaboration. Judgment affirmed. All the Justices concur, except ATKINSON, J., dissenting from the ruling in the fourth headnote. |