a lawful act without due caution and circumspection to which exception was taken contained no material or prejudicial error of sufficient gravity to justify the grant of another trial. Russell, J., dissenting. (Syllabus by the Court.) Error from Superior Court, Whitfield County; A. W. Fite, Judge. Claud Warnack was convicted of involuntary manslaughter in the commission of a lawful act without due caution, and he brings error. Affirmed. See, also, 5 Ga. App. 816, 63 S. E. 935. W. E. Mann and George G. Glenn, for plaintiff in error. Thos. C. Milner, Sol. Gen., Geo. W. Stevens, and Maddox, McCamy & Shumate, for the State. HILL, C. J. Claud Warnack was indicted for the murder of Chess Wilson, and the jury found him guilty of involuntary manslaughter in the commission of a lawful act without due caution and circumspection. His motion for a new trial being overruled, he brings error to this court. The motion for a new trial was predicated upon the usual grounds and on several special grounds which will be considered and determined in so far as we deem them material. This is the fourth trial of the defendant. In the first trial a mistrial was declared. On the second trial, he was convicted of voluntary manslaughter, and he was granted another trial by this court because of certain errors in the charge of the trial judge. On the third trial he was convicted of involuntary manslaughter in the commission of an unlawful act; and this court again granted him a new trial because of errors in the charge. It may be stated as to the general grounds that a careful consideration of the evidence satisfies us that the verdict on the trial now under consideration is supported by the evidence, and, unless there has been some material or prejudicial error of law, it should be allowed to stand. he could, but would try to do the best he could. The court declared him incompetent, over the objection of counsel for both the state and the defense. It cannot be doubted that the act of the court under these circumstances was not only authorized, but was in the interest of an impartial trial. Under the provisions of Pen. Code 1895, § 978, although a juror has been found competent and has been accepted, the trial court is authorized, before any evidence has been submitted on the main issue, to again put the juror on trial as to his competency, if, subsequently to his acceptance, there has been brought to the attention of the court any evidence attacking his competency; and, if the court then adjudges that the juror is incompetent, the court can withdraw him from the jury and cause another juror to be selected. 2. In charging the jury, the court made the following statement: "Now, gentlemen, in view of what has been said by counsel, it is proper that this court should state that neither this court nor the Court of Appeals has either directly or indirectly criticized the verdict of the jury in their findings of facts. It is a question of law which the Court of Appeals dealt with, and not a question of fact, in reversing this case." Exception is made to this statement on the ground that it was in the nature of an argument in favor of the state and was harmful to the defendant, and intimated to the jury that the verdict of guilty in the former trials was based upon sufficient facts. While the verdict of any former jury was a matter of no concern to the jury then trying the issues between the state and the defendant, and such previous verdict should not have been referred to, either by court or counsel, this court, in the absence of any statement in the exceptions as to what was said by counsel in reference to the former trials, will presume that the statement of the trial court on this subject was fully authorized by the comments of counsel. Error is assigned upon the following excerpt from the charge: "The law presumes they are all honest and speak the truth, but if, after an honest effort to reconcile the evidence, you are unable to do so, then you may believe that which to you seems the most reasonable and credible-that which as honest, conscientious, upright, intelligent jurors, wanting to do right, and render a just verdict, you believe to be the truth of the alleged transaction or transactions, viewing them in the light of all the surroundings as detailed from the witness stand, and in the light of human conduct, of reason, and common sense." It is said that this was an invasion by the court of the province of the jury, and that the court erred in telling the jury what they might believe, as this was a matter entirely with them. This charge of the court is entirely without error, and the criticism thereon wholly without merit. 1. Error is assigned on the action of the court in withdrawing a juror from the jury after he had been found competent on his voir dire and had been accepted. In explanation of this action, the judge certifies that, after the juror had been accepted and was on his way to join the other jurors in the box, the court saw him stop and hold a conversation with the ordinary of the county, and immediately after the juror had taken his seat in the box the ordinary informed the court that the juror had just stated to him that he had both formed and expressed an opinion as to the guilt or innocence of the prisoner, and he (the juror) feared that he would not be able to render a fair and impartial verdict. The court thereupon put the juror on trial as to his competency, and asked him if he thought that he could render a fair and impartial verdict independently of his opinion so formed and expressed, and trial allege error in the charge of the court | of Abercrombie, and a demurrer to the indicton the subject of voluntary manslaughter ment should have been sustained. and on involuntary manslaughter in the commission of an unlawful act. These exceptions are immaterial, in view of the fact that the verdict amounted to a practical acquittal of the defendant of these offenses, and he therefore could not have been prejudiced by any error, if error there was, relating to these grades of homicide. Chapman v. State, 120 Ga. 855, 48 S. E. 350. [Ed. Note. For other cases, see Assault and Battery, Cent. Dig. § 106; Dec. Dig. § 77.*] (Syllabus by the Court.) Error from Superior Court, Haralson County; Price Edwards, Judge. Floyd Gober and others were convicted of an assault, and they bring error. Reversed. J. N. Cheney and James Beall, for plain HILL, C. J. Judgment reversed. REYNOLDS v. JONES. (No. 1,899.) 4. There are exceptions made to certain tiffs in error. W. K. Fielder, Sol. Gen., for portions of the charge on the subject of in- the State. voluntary manslaughter in the commission of a lawful act without due caution and circumspection. The charge on this subject substantially follows the opinion of this court when the case was last before it; and, while the language of an appellate court is not always appropriate in a charge to the jury by the trial court, in this case we do not think there was any material or prejudicial error in giving in charge the law of involuntary manslaughter in the commission of a lawful act without due caution and circumspection substantially in the language of this court and as adjusted to the particular facts of this case. We think that any error in this excerpt was cured by the charge when considered as a whole. The charge, considered as a whole, fairly and accurately submitted to the jury the issues made by the evidence, and we find no error of such a serious character as would justify us, in view of our opinion that the evidence supports the verdict, in granting another trial. Judgment affirmed. RUSSELL, J., dissents. GOBER et al. v. STATE. (No. 2,264.) (Court of Appeals of Georgia. Dec. 10, 1909.) ASSAULT AND Battery (§ 77*)-INDICTMENT~ DEMURRABLE. The only question in this case was a single issue of fact, to wit, whether the property levied upon under the mortgage foreclosure was the same property described in the mortgage, and on this issue the evidence was in sharp conflict The identity of the property was exclusively a question for the jury under the evidence, and the direction of a verdict was error. [Ed. Note.-For other cases, see Chattel Mortgages, Dec. Dig. § 284.*] (Syllabus by the Court.) Error from City Court of Sylvester; J. B. Williamson, Judge. Claim case between W. J. Reynolds and R. L. Jones.. Judgment for claimant, Jones, and Reynolds brings error. Reversed. J. J. Forehand and L. D. Passmore, for plaintiff in error. J. H. Tipton and Claude Payton, for defendant in error. HILL, C. J. The questions in this record arose on the trial of a claim case. W. J. Reynolds (plaintiff in error) held a chattel mortgage, executed by J. R. Reynolds on January 23, 1906, covering, among other perAn indictment for an assault (omitting the sonal property, "two black mares, one namformal parts) contains the following allegations: ed Maud and the other Daisy, one 31⁄2 years The defendants "did unlawfully attack and assault one W. A. Abercrombie on the public old, and the other 8 years old." On Septemhighway, and did threaten to do vio-ber 25, 1908, he foreclosed this chattel mortlence to him, said Abercrombie, did curse and gage, and on October 9, 1908, the mortgage abuse him, said Abercrombie, they, the said fi. fa. was levied on the following described [defendants] being then and there armed with pistols, did violently and unlawfully attempt property, to wit: "One black mare, about to stop the United States mail wagon which 31⁄2 years old, name Daisy." On October 12, the said Abercrombie was then driving, by forci- 1908, Jones, the defendant in error filed a bly catching the bridle of his (Abercrombie's) horse, the same being then and there an attempt statutory claim to the mare in question and on the part of said defendants to commit a executed a statutory bond. On the trial of violent injury on the person of him, said W. A. the claim case the plaintiff proved the exAbercrombie, and being then and there prevented ecution and foreclosure of the chattel mortfrom committing a personal, violent injury on him, the said Abercrombie, by the presence and gage, and also proved that at the date of entreaties of one Dr. W. F. Goldin." Held, that the mortgage the title to the black mare, while these allegations are sufficient to show named Daisy, covered by the mortgage, was some offense, or the preparation to commit in the mortgagor. There was conflict in the some offense, yet, as amplified and explained by evidence as to the identity of the mare in the specific details, they do not show that an assault was actually committed on the person question. The witnesses in behalf of the plaintiff identified the mare as the one J. R. | the matter should be left to the jury for deReynolds owned and had mortgaged to the termination, in the light of all the facts and plaintiff. The claimant testified that the circumstances." In the language of Jones mare which had been levied upon was not on Chattel Mortgages (4th Ed.) § 53: "Dethe black mare, named Daisy, covered by scriptions do not identify themselves. They the mortgage, the property of J. R. Reynolds, only furnish the means of identification." but that the mare in controversy was bought The description of the property in this mortby him from one Dr. Robertson about two gage was prima facie sufficient to furnish years prior, and that she had been in his the means of identification. The question in possession from that time until she was levied this case, under the evidence, was not so on under said mortgage execution; that Dr. much one of sufficient or insufficient descripRobertson had bought or traded for her from tion of the property in the mortgage, but was one Mr. Luke, about three years before the a question of identity of the property. claimant bought her; and that she was nev- plaintiff insisted, and proved by the evidence er known by the name of Daisy, but was in his behalf, that the mare levied upon by called Maud, and was raised in Irwin coun- the mortgage execution was the mare dety by Mr. Luke. Mr. Luke corroborated the scribed in the mortgage, and the claimant inclaimant's testimony as to these facts. sisted that the mare levied upon was not the mare described in the mortgage, but was an entirely different animal. It was a question of identity, solely for the determination of the jury. At the conclusion of the evidence the court directed a verdict in behalf of the claimant, finding the mare levied on not subject to the execution. The plaintiff excepted to this direction of a verdict. The direction of a verdict by the court in behalf of the claimant was based upon two propositions: (1) That the description of the property in the mortgage was insufficient to create a lien or to constitute notice; and (2) that the evidence shows that the claimant and his predecessors in title had been in possession of the property for more than two years prior to the date of the levy. As to the first proposition: "No particular form is necessary to constitute a mortgage. It must clearly indicate the creation of a lien, specifying the debt to secure. which it is given and the property upon which it is to take effect. It must be executed ir the presence of, and attested by, or proved before, a notary public or justice of any court in this state," etc., and recorded. Civ. Code 1895, § 2724. It was not denied that the mortgage in this case had all the constituents of a statutory chattel mortgage and was duly executed and recorded. The description of that part of the property covered by the mortgage, pertinent to the question now under consideration, was one black mare, named Daisy. This description is very general; but, under the decision of the Supreme Court in the case of Nichols v. Hampton, 46 Ga. 256, it is sufficient to constitute notice. Ir the Nichols Case, the description was: "One bay mare sold by the plaintiff to Johnson." Here the descriptior is one black mare, named Daisy, mortgaged by J. R. Reynolds to W. J. Reynolds, to secure the payment of a note. In the case of Farkas v. Duncan, 94 Ga. 30, 20 S. E. 268, the Supreme Court says: "It would be difficult to lay down an inflexible rule for determining what description would, or would not, be sufficiently full and complete to put a purchaser of mortgaged property on notice. In cases of doubt, The As to the second proposition, that the direction of a verdict was proper, because the undisputed evidence shows that the mare in question had been in the possession of the claimant and his predecessors in title for more than two years prior to the date of the levy of the execution, and therefore his title was good as against the lien of the mortgage. This opinion is based upon a misconception of section 5355 of the Civil Code of 1895. This section provides that “when any person has bona fide, and for a valuable consideration, purchased real or personal property, and has been in the possession of such real property for four years, or of such personal property for two years, the same shall be discharged from the lien of any judgment against the person from whom he purchased." This section is not applicable to the present case. The lien here is lodged in the mortgage, and not in the levy, execution, or foreclosure. Morris v. Winkles, 88 Ga. 719, 15 S. E. 747. Neither is there any contention that the mare had been purchased by the claimant from the defendant in the mortgage execution. The contention is that it had been purchased by the claimant from an entirely different person, and had never been owned by the defendant in execution. The whole question in this case is simply one of fact, and narrows itself to a single issue: Was the mare levied upon the mare described in the mortgage, or was it the mare that the claimant purchased from Robertson, and which had been purchased by Robertson from Luke? And on this issue the evidence was in conflict. There was really no legal question involved, and the single question of fact should have been submitted to the jury; and the direction of a verdict for the claimant was therefore erroneous. Judgment reversed. bound when she goes security for her husHAMILTON & PRITCHETT v. JENKINS band's debt; that she cannot be made to pay et ux. (No. 1,878.) (Court of Appeals of Georgia. Dec. 10, 1909.) TRIAL (§ 256*)-ACTION FOR NECESSARIES INSTRUCTIONS-NECESSITY OF REQUESTS. The controlling question in this case was one as to which the evidence was conflicting, the charge of the judge was free from material error, and was sufficiently comprehensive (in the absence of written requests for more specific instructions), to give the jury an accurate idea of the issue and the law involved, and there is no reason for reversing the judgment refusing a new trial. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*] (Syllabus by the Court.) Error from City Court of Sylvester; J. B. Williamson, Judge. Action by Hamilton & Pritchett against Pomp Jenkins and wife. Judgment against Pomp Jenkins alone, and plaintiffs bring error. Affirmed. Polhill & Tison and Perry & Tipton, for plaintiffs in error. Claude Payton, for defendant in error. RUSSELL, J. Hamilton & Pritchett sued Pomp Jenkins and Mattie Jenkins on an account for groceries, clothing, and other articles which are clearly within the territory of necessaries. The defendants are husband and wife, and according to their testimony the husband went to the store of the plaintiffs and wanted to open an account for supplies for himself and his family. The defendants refused to open the account, unless he would get an agreement from his wife to stand security for him. She owned a small farm, and worked on it with her children, and the husband worked at a turpentine still. The husband then went away and got his wife and returned to the store, and she agreed that, if the plaintiffs would open an account with her husband for supplies needed by the family during the year, she would pay whatever amount he failed to pay. It was understood that the husband would make payments on the account out of his wages from time to time, and if anything remained unpaid at the end of the year the wife would pay it out of the crops which she and the children made on her farm. The plaintiffs denied this evidence, and said that they refused to open an account with the husband, that they expressly told the wife at the time that they were looking to her for payment, and that she was an original promisor, and so understood at the time. The jury brought in a verdict against the husband alone. The plaintiffs except to the overruling of their motion for a new trial, which, besides the general grounds, contains merely assignments of error upon the charge of the judge. The judge charged the jury as follows: "The law in this state is that the wife is not her husband's debt, her husband being the head of the family, and being, under the law, responsible for all necessaries and supplies absolutely necessary that the family need. The issue in this case for you to decide is whether or not this account-these goods and this account-was made by her, whether she is the contracting party with Hamilton & Pritchett, or whether her husband is the contracting party and she is the security for her husband's debt. This is the issue for you to pass upon and which controls this case." It is insisted that this charge excluded a contention made by the plaintiffs that both the husband and the wife were bound for the debt, on the theory that they had made an original joint obligation to pay for the supplies. The pleadings in the case were very meager, and if the plaintiffs desired a more detailed instruction upon their contentions they should have submitted written requests to that effect. Macon R. Co. v. Joyner, 129 Ga. 683, 59 S. E. 902; Millen R. Co. v. Allen, 130 Ga. 658, 61 S. E. 541. The judge correctly stated the one controlling issue in the case. It is doubtful, in any event, whether the charge as given was not more favorable to the plaintiffs than it would have been if the additional contention had been stated to the jury as an issue, for the reason that under the charge as given, if the jury believed that the wife was an original promisor, either jointly with the husband or in her individual capacity, they would have brought in a verdict against her. The case turned on a pure and simple question of fact, as to which there was evidence which would have authorized a finding either way; and the charge, in the absence of written requests, sufficiently stated to the jury the issues and the law governing the transaction, and we see no reason for reversing the judgment refusing a new trial. Judgment affirmed. FALLINS v. STATE. (No. 2,248.) (Court of Appeals of Georgia. Dec. 10, 1909.) CRIMINAL LAW (§ 1088*)-RECORD-AFFIDAVITS ON MOTION. Where the bill of exceptions complains of the decision of the trial court upon a motion as to which evidence was heard by affidavit and counter affidavit, it is not permissible to specify the affidavits as record, unless they be incorporated in an approved brief of the evidence. If not so incorporated and approved, they must be either set out in the bill of excepan exhibit and tions or attached thereto as verified as a portion thereof. It appears that the only error complained of in the bill of exceptions is one depending on the consideration of the affidavits, which have not been properly brought before this court. Summerlin v. State, 130 Ga. 791, 61 S. E. 849; Sasser v. State, 129 Ga. 542, 59 S. E. 255; McDonald v. State, 129 Ga. 452, 59 S. E. 242; Glover v. State, 128 Ga. 1, 57 S. E. 101; Johnson v. Gleaton, | job, but that during the period in question he 4 Ga. App. 383, 61 S. E. 493; Harrison v. was held out of other employment. The conBell, 132 Ga. App. 674, 64 S. E. 688. [Ed. Note. For other cases, see Criminal tract proved by the plaintiff was not such as Law, Cent. Dig. § 2790; Dec. Dig. 8 1088.*1 to authorize a recovery under these circumstances. While he was employed by the (Syllabus by the Court.) month, yet he was to be paid only for the Error from City Court of Griffin; J. J. days he actually worked; and he did not Flynt, Judge. Joe Fallins was convicted of an offense, and he brings error. Writ of error dismissed. Robt. T. Daniel, for plaintiff in error. W. H. Beck, Sol., for the State. POWELL, J. Writ of error dismissed. SOUTHERN RY. CO. v. EVERETT. (No. 2,118.) (Court of Appeals of Georgia. Dec. 10, 1909.) MASTER AND SERVANT (§ 73*)-ACTION FOR WAGES. Plaintiff did not make out a case of liability against defendant. [Ed. Note.-For other cases, see Master and work during this period. Judgment reversed. Ben Brookins was convicted of carrying a Servant, Cent. Dig. § 94; Dec. Dig. 8 73.*] concealed weapon, and he brings error. Af(Syllabus by the Court.) Error from Superior Court, Fulton County; W. D. Ellis, Judge. Action by J. H. Everett against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Reversed. McDaniel, Alston & Black and E. A. Neely, for plaintiff in error. J. Caleb Clarke, for defendant in error. POWELL, J. We omit from the discussion of the case the small item. of back wages, as to which there is no controversy. The case actually before us presents this state of facts: Everett sued the Southern Railway Company for his wages, at the rate of $2.60 per day for the days intervening between March 22, 1908, and April 22, 1908. He recovered a verdict and judgment for $80.60-31 days' wages, at $2.60. He testified that he was employed by the month and paid by the month for the days he actually worked. He further testified that on March 28, 1908, he was "let out of the service" of the Southern Railway Company, on account of a claim on the part of certain officers of the company that he was responsible for certain injuries to an engine which had been intrusted to his care. He was told that an investigation would be made, and that they would let him know later what the result of the investigation was: and in the meantime, as he states it, he was "let out of the service." On April 22d he was told that he was finally discharged. The gravamen of plaintiff's suit is, not that he was unlawfully discharged on March 22d, but that he ought to have been paid his wages during his suspension, pending the investigation; that, if he had been discharged, he could have gone on and gotten another firmed. H. A. Wilkinson, for plaintiff in error. M. J. Yeomans, Sol., for the State. The HILL, C. J. While service was in progress, some one near the church disturbed the preacher by disorderly conduct. preacher requested four of his deacons to go after the disturber and bring him to the church. Complying with this request, the deacons went to the place where the disturbance was, and, suspecting that the plaintiff in error was the guilty party, either took him into custody and led him to the church, or asked him to go and he went voluntarily. The deacons were not peace officers of the state, "only deacons of the church," and they did not know that the plaintiff in error was the one who had disturbed the preacher. On the way to the church a person, not an officer of the church and not in sympathy with the deacons, nor assisting them in any way in taking the suspected offender to the church, but, according to the evidence, his friend, ran up behind him suddenly and took from his pocket a pistol which he had concealed. He made no objection to this friendly act, and did not in any manner resist or endeavor to prevent his friend from taking his pistol. On his trial for carrying concealed weapons, the foregoing facts, over his objection, were admitted in evidence against him; and the only error insisted on in this court is that the trial judge erred in admitting the testimony, it being insisted that it was evidence procured by an unlawful seizure and search of his person, whereby he was involuntarily compelled to give evidence against himself. We do not think the facts bring the de |