securing the loan, the transaction is usurious: Monographic note to Bank of Newport v. Cook, 46 Am. St. Rep. 197. See, also, note to Stein v. Swenson, 24 Am. St. Rep. 239.

USURY-EFFECT OF.-The statute of Arkansas denounces the taking of usury and upon all contracts for its payment impresses the stamp of absolute nullity; and this blight covers the entire transaction: Vahlberg v. Keaton, 51 Ark. 534; 14 Am. St. Rep. 73, and note. But usury cannot affect pre-existing indebtedness: Swint v. Carr, 76 Ga. 322; 2 Am. St. Rep. 44. The right to set up usury as a defense against a mortgage may be lost by laches, and if for this reason usury does not invalidate a mortgage, a sale under the power contained therein will not be enjoined by reason of it, unless the debtor brings into court the principal and the legal interest due: Ferguson v. Soden, 111 Mó. 208; 33 Am. St. Rep. 512.

KING V. STATE.

[99 GEORGIA, 686.]

CRIMINAL LAW-POSSESSION OF STOLEN PROPERTY. In a prosecution for burglary in entering a house and stealing chickens, the possession by the accused of chickens stolen from the same owner at the same time is not evidence of his guilt of the crime charged, where it does not appear that the chickens of which he was so in possession were any part of those taken from the house.

Blandford & Grimes, for the plaintiff in error.

S. P. Gilbert, solicitor general, contra.

687 LUMPKIN, J. 1. The plaintiff in error was convicted of the crime of burglary. The state's contention was, that he broke and entered a house, within the curtilage of the prosecutor's dwelling-house, with intent to steal certain chickens, and did actually steal the same. The evidence showed that the house in question was broken, and that a theft of chickens therein contained was committed. The material issue in the case was whether or not the accused was the guilty party. It also appeared that the prosecutor had some chickens in a coop, and that they disappeared simultaneously with those in the house. The offense was committed at night. There was no direct evidence to show the guilt of the accused, but the state relied mainly upon the fact that on the next morning he was found in possession of chickens belonging to the prosecutor, which had previously been either in the house or in the coop, or perhaps some of them may have been in one and some in the other. It does not affirmatively and distinctly appear, however, that the accused had in his possession any of the chickens which were taken from the house. Upon this state of facts, a charge in the following language was not fair to the accused, and did not present the true law of the case: "If he [the accused] has not satisfied you from the testimony in

the case, and he was found in the possession of them [the chickens], and a burglary had been committed, then, gentlemen, you would be authorized to return a verdict of guilty against him.”

688 In the light of what is said above, it is apparent that the court should have qualified this charge by further instructing the jury that, in order to justify a conviction of burglary, it was, in any view of the case, essential that they should be satisfied from the evidence that the chickens found in the possession of the accused were taken from the house which had been burglariously broken and entered. We therefore think that the giving of the charge above quoted is cause for a new trial.

2. We the more readily grant one in the present case for another reason. Even assuming that the accused was in possession of chickens which had been taken from the house, and that it was therefore incumbent upon him to satisfactorily explain how he obtained them, the evidence introduced by him in this connection was seemingly sufficient to show that he came honestly by the chickens he had. Three witnesses, whose testimony was in no material respect contradicted, testified that they saw the accused buy the chickens from a boy who publicly offered them for sale just outside the market-house on the morning following the burglary; and that the accused immediately, and without hesitation, surrendered them to the prosecutor when they were identified and demanded by the latter. We do not see why the jury should not have accepted as true the testimony of these witnesses, none of whom were impeached.

In expressing our opinion as to the sufficiency of this evidence, we do not wish to be understood as holding that the accused was under any obligation of showing that he acquired possession of the chickens honestly, though in the present case the explanation offered would seem to justify the conclusion that he purchased them in entire good faith. Any explanation which negatived his commission of, or participation in, the burglary, would have sufficed: Falvey v. State, 85 Ga. 157. In this case, therefore, the accused undertook, successfully we believe, to go even further than the law requires in accounting for his possession of the stolen property.

Judgment reversed.

CRIMINAL LAW-POSSESSION OF STOLEN PROPERTY AS EVIDENCE OF GUILT.-The late possession of stolen property alone is not sufficient to sustain a verdict of guilty of larceny, but it is a circumstance tending to show guilt: State v. Duncan, 7 Wash. 336; 38 Am. St. Rep. 888, and note; Cooper v. State, 29 Tex. App. 8;

25 Am. St. Rep. 712, and note; State v. Warford, 106 Mo. 55; 27 Am. St. Rep. 322. The prosecution must identify stolen property found in the possession of the accused with that for the theft of which he is Indicted, and this must be done by the most direct and positive testimony of which the case is susceptible: Garcia v. State, 26 Tex. 209; 82 Am. Dec. 605. See extended note to Hunt v. Commonwealth, 70 Am. Dec. 447-452.

MURDER,

SELLERS V. STATE.

[99 GEORGIA, 689.]

PASSION AROUSED BY DISPUTE AS TO PROPERTY RIGHTS.-Where there is an honest difference of opin ion between parties in respect to their interest in property, the fact that one of them proceeds, against the protest of the other, to assert his rights according to his understanding of them, cannot constitute a sufficient provocation for killing him, nor can it be deemed to excite an irresistible outburst of passion on the part of the slayer, so as to reduce the offense to voluntary manslaughter.

E. D. Graham, J. J. Summerall, and Estes & Walker, for the plaintiff in error.

J. M. Terrell, attorney general, and W. G. Brantley, solicitor general, contra.

GS9 LUMPKIN, J. The plaintiff in error, D. F. Sellers, was convicted of murdering John P. Dixon, and sentenced to imprisonment in the penitentiary for life. The evidence shows that Mrs. Sellers, the wife of the accused, was the owner of a field on which Joseph Dixon, a brother of the deceased, had, under a contract with Sellers, cultivated and raised a crop of corn. It is not absolutely clear whether the relation between Sellers and Joseph Dixon was that of landlord and tenant, or landlord and croppcr. It is, however, immaterial to ascertain what may have been the precise truth as to this matter. A dispute arose between Sellers and Joseph Dixon over a division of the fodder raised on the field in question. It is 690 not essential to set forth the particulars of this dispute, further than to say that Joseph Dixon, evidently in good faith, claimed the right to remove from the land two-thirds of the fodder, while Sellers contended that Joseph Dixon's share was only one-half. On the day of the homicide, Joseph Dixon entered the field, accompanied by John P. Dixon and others, for the purpose of emoving two-thirds of the fodder. While they were engaged in so doing, Sellers appeared on the scene and shot and killed John P. Dixon with a rifle, having no reason or excuse for so doing, other than the fact that the deceased was assisting

his brother in violating what Sellers regarded as the contract rights of himself, or of his wife, in the premises.

The accused introduced a considerable amount of testimony tending to show that he was afflicted with a disease which at times affected his mind to a greater or less extent, and that in consequence he was more than ordinarily susceptible to the excitement of passion; but it was not contended in his behalf that he was mentally incapable of committing crime, or legally irresponsible for the homicide. The state introduced in rebuttal much evidence tending to show that the accused had no mental infirmity, but was in all respects a thoroughly rational person. It was practically conceded at the trial that the accused was guilty of some offense, and the chief effort of his counsel seems to have been to have the killing reduced to voluntary manslaughter. With this end in view, the court was requested to charge, in substance, that if under the contract Joseph Dixon was entitled to remove only one-half of the crop of fodder, and was seeking to carry away two-thirds of the same, and the jury should believe that this "provocation" and the surrounding circumstances were sufficient to justify the excitement of passion, they should find the accused guilty of voluntary manslaughter, and not murder; and that, in determining the degree of the homicide, they might take into consideration the mental condition of the accused 691 at the time of the killing, with a view to ascertaining whether or not he acted with malice aforethought, or upon a sudden impulse of passion. These requests were refused; and the judge, on the contrary, in effect instructed the jury that such "provocation" as that above indicated would not, in legal contemplation, be sufficient to justify the excitement of passion on the part of the slayer, so as to reduce the homicide to the grade of voluntary manslaughter.

Under the facts as they appear in the record, no error was committed, either in refusing to charge as requested, or in charging as stated. Civil disputes of this nature cannot be settled with deadly weapons. The deceased, as the assistant of his brother, had an undoubted right to enter the field upon which the crop was raised; and even though the latter may have been mistaken as to the proportion of the fodder to which he was lawfully entitled, neither he nor the brother who was killed were in any sense trespassers. The law will not for a moment tolerate the idea that their conduct should be treated as a cause for exciting in the breast of Sellers an outbreak of passion supposed to be irresistible. To hold that a mere difference of opinion between

parties as to their respective shares in a crop in which they are jointly interested, accompanied by peaceable acts only on the part of one of them in endeavoring to obtain what he honestly be lieved to be his legal rights, would be sufficient to justify the excitement of that degree of passion in the other which would make the killing of his adversary, under such circumstances, manslaughter, would be establishing an unheard of and exceedingly dangerous precedent. The proposition is too plain for serious discussion. The effect of promulgating such a doctrine would doubtless diminish to an enormous extent the amount of business standing upon the civil dockets of our courts, but the increase in the criminal business would be simply terrible. If, in a case like this, the tenant or cropper had slain the 692 landlord for no better reason that that set up by the accused in mitigation of his offense, the killing would as plainly have been murder as it was in the present instance. The conviction of murder was unquestionably right; and even if the jury had failed to recommend that the accused be imprisoned for life, this court would have had neither the power nor the disposition to disturb their finding.

Judgment affirmed.

HOMICIDE-WHEN

JUSTIFIABLE-MANSLAUGHTER.—Although a trespass, not amounting to a felony, will not justify murder, and is not of itself sufficient to reduce a homicide to manslaughter, yet if the circumstances show that the killing was the result of a sudden, violent impulse of passion, provoked by the trespass, especially if accompanied by an assault with a deadly weapon, and acted upon before the passion has time to cool, this is such provocation as will operate to reduce the crime to manslaughter: Crawford v. State, 90 Ga. 701; 35 Am. St. Rep. 242. The provocation, however, should be of such a character as in the mind of a reasonable man would stir resentment to violence endangering life: Note to Crawford v. State, 35 Am. St. Rep. 250; see note to Sullivan v. State, 48 Am. St. Rep. 28.

LEWIS v. STATE.

[99 GEORGIA, 692.]

FORCIBLE ENTRY, WHAT IS.-An entry upon premises in defiance of the occupant, with such a display of force as to reasonably deter him from maintaining his possession, is a forcible entry.

FORCIBLE ENTRY, WHAT IS NOT.-A mere invasion of the premises of another during his absence, accompanied by such violence only as was incident to effecting an entry into an unoccupied dwelling-house thereon is but a naked trespass, not indictable as a forcible entry. There can be no forcible entry in the absence of acts naturally tending to excite a breach of the peace.

UNDER AN INDICTMENT CHARGING BOTH forcible entry and a forcible detainer, it is essential to sustain a conviction that both offenses be proved.