Error from Superior Court, Jackson Coun- and from the legal evidence alone determine ty: A. J. Cobb, Judge. the issues. There was some evidence to sup Ed Sheppard was convicted of an offense, port the finding of the judge that the city and he brings error. Affirmed. court of Bainbridge had jurisdiction of the BROYLES, C. J., and LUKE, J., concur. LUKE, J. [1] 1. The evidence in this case shows that the defendant and Elgie Appleby, who were playing, with others, in a game of cards, engaged in a quarrel, drew pistols, and cursed at each other, and, while they were thus engaged, the defendant shot and killed Appleby. It was not error for the court to charge the law of voluntary manslaughter. Gann v. State, 30 Ga. 67; Williams v. State, 125 Ga. 302, 54 S. E. 108; Findley v. State, (Court of Appeals of Georgia, Division No. 1. 125 Ga. 579, 54 S. E. 106 (3). [2] 2. The newly discovered evidence was cumulative and impeaching and would not likely produce a different verdict upon another trial of the case. For no reason assigned did the court err in overruling the motion for a new trial. Judgment affirmed. (26 Ga. App. 100) KAUFMAN METAL CO. v. ATLANTIC REFINING CO. (No. 11688.) Dec. 17, 1920.) (Syllabus by the Court.) Principal and agent 103(6) — Seller not bound to accept where employee who had accepted was not authorized to do so. The court did not err in directing a verdict in favor of the defendant. Error from City Court of Brunswick; Eus BROYLES, C. J., and BLOODWORTH, J., tace C. Butts, Judge. concur. (26 Ga. App. 61) WARD v. STATE. (No. 11710.) (Court of Appeals of Georgia, Division No. 1. Dec. 16, 1920.) (Syllabus by Editorial Staff.) Criminal law 255-When cause tried by judge, strictness in admission of evidence not necessary. When a criminal case is by agreement submitted to the judge without a jury, the same Action by the Kaufman Metal Company against the Atlantic Refining Company. Judgment for defendant, and plaintiff brings error. Affirmed. Max Isaac and Isaac & Isaac, all of Brunswick, for plaintiff in error. Bennet, Twitty & Reese, of Brunswick, for defendant in error. BROYLES, C. J. The Atlantic Refining Company of Brunswick, Ga., gave to the H. C. Weller Company of Jacksonville, Fla., an order for a one yard No. 61 Ransome mixer (concrete mixer). The refining company, on | 2. Criminal law 1022-Court of Appeals the request of the Weller Company, sent A. may review decisions of city court of Hinesville. J. Wright, one of its employees, to Jacksonville to inspect the mixer, which he did, and, The city court of Hinesville is a constituafter the inspection, he wrote across the or- tional city court whose decisions may be reder the following words: "Above inspected viewed by the Court of Appeals. and accepted for Atlantic Refining Company. 3. Criminal law 936(6) .A. J. Wright, Traffic Manager." The machine was subsequently shipped by the Kaufman Metal Company of Jacksonville to the refining company, which refused to accept it, and the Kaufman Company brought suit against the refining company for the agreed purchase price of the machine. Defendant, surprised by testimony, cannot ask new trial where he did not move for continuance. Where a witness makes a statement wholly unexpected to defendant, who knows it to be false and can so prove by another witness, he should move for a continuance, and cannot take his chances of a verdict and then move for a new trial on the ground of surprise. Error from City Court of Hinesville; W. C. Hodges, Judge. Frank Walters was convicted of an offense, Affirmed. and he brings error. Ben A. Way, of Hinesville, for plaintiff in error. M. Price, Sol., of Ludowici, for the State. Upon the trial of the case the undisputed evidence showed that the machine inspected by Wright and shipped to the refining company was not a one yard mixer as ordered, but that it was either a half yard or a threequarter yard mixer, and that the refining company wanted to buy a one yard mixer only. It was further undisputed from the evidence that Wright, the employee of the refining company, had no authority to accept the machine for his company, but that his LUKE, J. [1, 2] 1. This court has jurisdicauthority was limited to an inspection there-tion to review the decisions of any city court of, and further that he was sent to inspect in the state established at a county site which the mechanical condition only of the machine, and that, relying upon the order which called for a one yard mixer, he inspected the machine only as to its mechanical condition and did not attempt to ascertain its capacity, and furthermore that he did not have the technical knowledge necessary to determine such capacity. Under these circumstances, we think the refining company was legally justified in refusing to accept the machine sent it, and that the court did not err in directing a verdict in favor of the defendant. Judgment affirmed. was a city when the act establishing the court was enacted. The act, or an amendment thereto, provides for a jury of 12 upon the demand of either party in a cause, civil or criminal, and, if the court has both civil and criminal jurisdiction, either over the limits of the city in which the court is located or over the entire county, or criminal jurisdiction over the city and civil jurisdiction over the county, or civil jurisdiction over the city and criminal jurisdiction over the county. Welborne v. State, 114 Ga. 793, 40 S. E. 857; Ash v. Peoples Bank of Oliver, 149 Ga. 713, 101 S. E. 912. Under this ruling the city court of Hinesville is a "constitutional city LUKE and BLOODWORTH, JJ., concur. court," and the motion of the defendant in error to dismiss the writ of error is denied. [3] 2. "A new trial will not be granted because a witness, in his testimony on the trial, made a statement wholly unexpected to the defendant, who at the time knew the state ment was false, and that he could so prove by a witness whose testimony he could have (Court of Appeals of Georgia, Division No. 1. procured had he thought such proof was nec Dec. 16, 1920.) (Syllabus by Editorial Staff.) I. Criminal law 1022-Jurisdiction of Court of Appeals to review decisions of city court stated. The Court of Appeals has jurisdiction to review the decisions of any city court established at a county site which was a city when the act establishing the court was enacted, if a jury of 12 is provided for on demand in any cause, civil or criminal, and the court has civil and criminal jurisdiction over either the city or the county, or criminal jurisdiction over the one and civil jurisdiction over the other. essary. The party surprised by the statement of the witness should have moved for a continuance. He could not take his chances of a verdict and then claim a surprise." Sanders v. State, 7 Ga. App. 603, 67 S. E. 696, and citations. Under this ruling the amendment to the motion for a new trial is without merit. 3. The remaining grounds of the motion for a new trial were expressly abandoned in the brief of counsel for the plaintiff in error. Judgment affirmed. BROYLES, C. J., and BLOODWORTH, J., concur. (105 S.E.) (26 Ga. App. 44) (Court of Appeals of Georgia, Division No. 1. (Syllabus by the Court.) Courts 189 (4)-Service of process from municipal court on member of family occupy ing rooms in same house with defendant held good. Under the facts of this case, service of a summons issued by the clerk of the municipal court of Atlanta, directed to the defendant and served on a person more than 18 years old who lived in the house in which the defendant resided, with an entry of service as provided by the statute, was good although the person served did not actually live in the rooms occupied by the defendant, but occupied rooms across the hall from those in which the defendant lived. and had never waived service nor authoriz- "That he went to 567 South Pryor street and inquired for Mr. Cooper, and was informed by the lady who answered the door that Mr. Cooper was not at home but this was his home that he understood her to say her name was and he resided there, was out at his work, and Miss Brown, describing her as tall and angular, about 5 feet 6 inches in height, weighing 105 pounds, about 45 years of age. After she told witness that Mr. Brown (Mr. Cooper?) resided there, he delivered her the summons for Mr. Cooper, and made the entry herein referred to." The trial judge overruled the traverse, the case was then carried to the superior court by certiorari, the certiorari was "overruled and denied," and the plaintiff excepted. Morris Macks and Saml. A. Massell, both of Atlanta, for plaintiff in error. Hewlett & Dennis, of Atlanta, for defend Error from Superior Court, Fulton Coun- ants in error. ty; Geo. L. Bell, Judge. Action by the Fourth National Bank of Atlanta and others against J. B. Cooper. Defendant's traverse to the return of service was overruled and certiorari denied by the superior court, and defendant brings error. Affirmed. The Fourth National Bank of Atlanta sued Cooper and others in the municipal court of Atlanta. There was a judgment in favor of the bank, and an execution was issued. An officer called upon Cooper for payment of the execution. He denied having been served or having any notice of the suit, and "filed his traverse to said return of service at the first term of the court after he had notice of said return of service." On the trial of the issue raised by the traverse it was shown that the defendant and his wife resided at 567 South Pryor street, Atlanta, Ga., in a one-story, nine-room house, in which there was a hall with four rooms on one side which were occupied by them, while W. A. Brown and his wife occupied rooms across the hall, and that the hall had "a door at the front and a door at the rear entrance." The return of the officer was as follows: BLOODWORTH, J. (after stating the facts as above). The brief for the plaintiff in error limits this court to the consideration of a single issue, to wit, is the service of the summons on the defendant, as shown by the entry of service and by the evidence on the traverse, sufficient? The provisions of the statute in reference to service of summons issued by authority of the municipal court of Atlanta are found in section 36 (Ga. L. 1913, p. 163), and are as follows: "Such summons and copy shall be served by the marshal, or his deputy, by delivering a copy thereof to the defendant, or by leaving such copy with some person more than eighteen years old domiciled at the residence of the defendant; and the marshal or his deputy, as the case may be, shall make return of service, stating the method thereof; and, where personal service is not made, the marshal, or his deputy, as the case may be, shall state the place where summons was left, with a brief description of the person with whom it was left, giving the name of such person if possible." There can be no doubt that the defendant resided at No. 567 South Pryor street, and that service was perfected on a person "more than eighteen years old and domiciled at the residence of the defendant." Suppose the defendant had been asked where he resided, would he not have replied, "At 567 South Pryor street"? The statute in reference to service of process issued by the clerk of the superior court provides that "leaving "Georgia, Fulton County. I have this day served the defendant, J. B. Cooper, 567 Pryor St., by leaving a copy of the within action and summons at his most notorious place of abode in this county. Delivered same into the hands of Miss Brown, inmate, white person, described as follows: Age about 45 years, weight about 105 pounds, height about 5 feet and 6 inches, domiciled at the residence of defendant. This a copy at the defendant's residence shall be Sept. 20th, 1917. "L. L. Johnson, D. Marshal." The defendant testified that there was no "Miss Brown" domiciled at his home on the date of the alleged return, and that he had never been served with any notice of the suit, a sufficient service." Civil Code (1910) § 5563. Summons issued by a justice of the peace may be served on the defendant "by leaving such copy at his usual and most notorious place of abode." Should a sheriff go to the residence of the defendant and push under the door a copy of a suit with Judgment affirmed. proper process attached, or if a bailiff should | al Bank, 95 Ga. 503, 20 S. E. 240; Hays v. make a similar service of a summons issued Fourth National Bank of Atlanta, 17 Ga. by a justice of the peace, this service would App. 409, 87 S. E. 147. be good. Why? Because the service has been perfected in the manner provided by statute. As persuasive argument of the position we take in this matter, we quote from Lovin v. Hicks, 116 Minn. 182, 133 N. W. 576, as follows: "It is true that the statute, providing as it does for a substituted service, should be construed with reasonable strictness; but a construction should not be adopted that would defeat the purpose of the statute, or make it unreasonably difficult to obtain service of summons or process. The reason for permitting this substituted service is that, where the summons is left at the usual place of abode of defendant and with a person of suitable age and discretion, defendant will in all probability receive it. To hold that the summons must be left actually in the house or in the rooms that constituted the place of abode would make it easy to avoid the service, and unreasonably difficult for the server." In McLeay v. Davison-Paxon-Stokes Co., 18 Ga. App. 134, 88 S. E. 992, the entry of the constable who served the summons issued by a justice of the peace was as follows: "Served the defendant with a copy of the within summons and note by leaving the same at her most notorious place of abode." Upon a trial of the issue formed by a traverse to this return, the husband of the defendant testified: BROYLES, C. J., and LUKE, J., concur. (26 Ga. App. 72) SHEFFIELD v. STATE. (No. 11830.) (Court of Appeals of Georgia, Division No. 1. Dec. 16, 1920.) (Syllabus by Editorial Staff.) 1. Larceny 16-Person inducing finder not to return lost property but to lend it to him held guilty of larceny. Under Pen. Code 1910, § 152, defining simple larceny, defendant could be convicted of larceny where, with full knowledge of the ownership of a lost pocketbook containing money, he induced the finder not to return it but to lend a part of the money to him, and never returned any of the money to either the owner or the finder, and afterwards destroyed the pocketbook. 2. Criminal law 776(5) Instruction on proof of good character held not erroneous. An instruction concerning defendant's proof of good character, in which it was stated that and that such proof might of itself be sufficient defendant had a right to prove good character to raise the reasonable doubt of the law, held not erroneous as failing to state that proof of good character might of itself generate a doubt which might alone authorize an acquittal. 3. Criminal law 762(5)-Instruction as to right to convict notwithstanding good character held not expression of opinion. That, together with his wife and family he rented and occupied apartments "at the Georgian Terrace Apartment House, which apartments were separate and distinct from all other apartments in said apartment house, except that all tenants in said apartment house used the same hall, which was one of several ways An instruction that if defendant's guilt was of entrance into said building; that his apart-made to appear to the jury's satisfaction and ment was furnished by himself, and that all beyond a reasonable doubt they would be ausupplies for himself and family, as well as all thorized to convict him, regardless of his alpackages, were delivered direct to his apart-leged good character, was not an expression of ment, and his said apartments were as separate opinion of defendant's guilt. and distinct as any individual residence of a family might or could be; that said Georgian Terrace Hotel is a hostelry separate and distinct from said apartment house; that guests are entertained at said hotel which has no connection with the tenants of said apartment house; that the guests at said hotel are pro- J. J. Forehand and W. R. Sumner, both of vided for on either the American or the Euro-Sylvester, for plaintiff in error. pean plan, and are furnished with all accommodations incident to a hotel." This service was held good by this court. The record in the case under consideration shows that the defendant was served in the manner pointed out by law, and that the statute was conformed to in the entry of service. When this has been done the service is good although the defendant may never see or receive the summons. See, in this connection, Moye v. Walker, 96 Ga. 769, 22 S. E. 276(1); Burbage v. American Nation Error from City Court of Sylvester; C. W. Monk, Judge. Jim Sheffield was convicted of larceny, and he brings error. Affirmed. Clyde Forehand, Sol., of Sylvester, for the State. LUKE, J. [1] 1. All exceptions relating to the evidence in this case present the single contention that the evidence is not sufficient to sustain the verdict; and, it appearing from the evidence that, while Ford and his wife were working as tenants on a place rented by the defendant from one Sutton, Ford's wife found and turned over to him a pocketbook containing $85, which Sutton had (105 S.E.) peach only witness on vital point not ground for new trial. Newly discovered evidence to impeach a witness for the state is not ground for a new trial, though he is the only witness against the prisoner upon a vital point in the case. Error from City Court of Alma; L. D. Luke, Judge. lost and which they knew was his property; (2. Criminal law 942(1) — Evidence to imthat Ford had started to return the lost property to its owner, when the defendant met him, and, upon being fully apprised by Ford as to the ownership of the property and of his intended mission to return it to Sutton, persuaded him to keep the lost articles and to let him (the defendant) have $40 of the money, upon his promise that he would protect him and return to him the $40 later, with 10 per cent. interest; that the defendant never returned any of the money to either Ford or Sutton; that Ford kept and used the remainder, and that the pocketbook was afterwards destroyed by the defendant-the evidence amply sustained the verdict of guilty of simple larceny. Penal Code 1910, § 152; Love v. State, 9 Ga. App. 874, 72 S. E. 433; Flemister v. State, 121 Ga. 146, 48 S. E. 910; Slaughter v. State, 113 Ga. 284, 38 S. E. 854 (1), 84 Am. St. Rep. 242. [2, 3] 2. The judge's charge that, "If the defendant puts his character in issue before you and submits to you proof of his good character (which I charge you he has a right to do, and proof of good character may of itself be sufficient to raise the reasonable doubt of the law), yet I charge you that if his guilt is made to appear to your satisfaction and beyond a reasonable doubt, you would be authorized to convict him, regardless of his alleged good character," is not error for failing to state that proof of good character may of itself generate a doubt in the minds of the jury which may alone authorize an acquittal. Johnson v. State, 21 Ga. App. 497, 94 S. E. 630 (4), and cases cited. Nor is the latter part of the above excerpt from the charge of the court "in effect an expression of opinion of defendant's guilt." 3. For no reason assigned was it error to overrule the motion for a new trial. Judgment affirmed. Will Taylor was convicted of an offense, and he brings error. Affirmed. I. J. Bussell, of Alma, for plaintiff in error. BLOODWORTH, J. [1, 2] 1. The ground of the motion for a new trial which relates to alleged newly discovered evidence cannot be considered, because it is fatally defective, in that the witness upon whose evidence the ground is based is not supported by the other affidavits required by section 6086 of the Civil Code of 1910. Moreover the, only effect of the alleged newly discovered evidence would be to impeach the only witness for the state, and "though the witness sought to be impeached by newly discovered evidence was the only witness against the prisoner upon a vital point in the case, if the sole effect of the evidence would be to impeach the witness a new trial will not be granted." Key v. State, 21 Ga. App. 795, 95 S. E. 269 (1), and cases cited. 2. The evidence is sufficient to support the finding of the jury; the verdict has the apProval of the judge who presided at the trial, and the judgment is affirmed. BROYLES, C. J., and LUKE, J., concur. (26 Ga. App. 82) TOWNSEND v. STATE. (No. 11891.) BROYLES, C. J., and BLOODWORTH, J., (Court of Appeals of Georgia, Division No. 1. concur. (26 Ga. App. 80) TAYLOR v. STATE. (No. 11862.) Dec. 16, 1920.) (Syllabus by Editorial Staff.) 1. Criminal law 1160-When verdict supported by evidence, Court of Appeals cannot control judgment denying new trial. Where the evidence, though weak, is not (Court of Appeals of Georgia, Division No. 1. insufficient as matter of law to support the Dec. 16, 1920.) verdict, and the verdict has been approved by the trial court, the Court of Appeals is without authority to control the judgment of the trial court in refusing a new trial. 2. Criminal law 935(1)—Trial judge has wide discretion as to granting new trial because verdict against weight of evidence. When the verdict is apparently decidedly against the weight of evidence, the trial judge has a wide discretion as to granting or refusing a new trial. Error from City Court of Wrightsville; B. B. Blount, Judge. |