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GEORGIA SUPREME COURT. forded without discrimination, he has been

accorded the equal protection of the laws. LEO M. FRANK, Plff. in Err., Same verdict in absence of defendV.

ant waiver. STATE OF GEORGIA.

2. If, on the trial of one indicted for mur

der, a verdict of guilty is received in the (142 Ga. 741, 83 S. E. 645.)

absence of the prisoner, and without his

consent, while he is incarcerated in jail, a Constitutional law - due process

motion for new trial is an available remedy criminal trial.

in such case, if made in time. 1. Due process of law implies the adminis- (a) But where a motion for a new trial tration of laws which apply equally to all is made by the defendant, with knowledge persons according to established rules, and of the fact that the verdict was rendered in which are “not violative of the fundamental his absence, and such motion does not conprinciples of private right, by a competent tain that fact as ground for a new trial, tribunal having jurisdiction of the case though it is recited therein, it is too late, and proceeding upon notice and hearing."

after the motion for new trial has been de(a) Consequently, where one indicted for nied, and the judgment has been affirmed by murder has had full opportunity under the this court, to make a motion to set aside Constitution and laws of the state to de- the verdict on that ground. fend his case in the courts of the state hav- Criminal law right to be present ing jurisdiction thereof, in person, by at- waiver. torney, or both, according to established 3. It is the right of a defendant, on trial constitutional rules of procedure, he has for crime in this state, to be present at been afforded due process of law under the every stage of his trial, and to be tried acstate and Federal Constitutions, which pro cording to established procedure. But he vide that no person shall be deprived of may waive formal trial and verdict, and life, liberty, or property without due process plead guilty, and this includes the power of law.

to waive mere incidents of trial, such as (b) Where such opportunity has been, un his presence at the reception of the verdict. der constitutional laws of the state, af- (a) Accordingly, where, on the trial of

one accused of murder, the counsel for the Headnotes by Hill, J.

accused, at the suggestion of the trial Note. Waiver of presence of accused, ened mob violence. That if he and his

at time of receiving verdict upon trial counsel conceived it to be necessary for his for felony.

own safety that he should be absent from

the county during the further progress of The earlier cases on this question are dis- the trial, he cannot thereafter complain that cussed in the note to State v. Way, 14 the verdict was rendered in his absence. L.R.A. (N.S.) 603, and that to State v. Gor- | It was urged that the defendant did not man, 32 L.R.A. (N.S.) 306.

waive his presence, and the counsel could In Davidson v. State, 108 Ark, 191, 158 not waive it for him; but there was a findS. W. 1103, it was held that the accused | ing to the effect that he did authorize his in a capital case had the right to waive counsel to take this step, and this finding his personal presence at the time of re- was held justified under the circumstances ceiving the verdict, and that where his pres of the case, and was not disturbed. ence had been duly waived a judgment The further question involved in FRANK against him should not be reversed on ac- v. STATE, that the accused in a felony case, count of his absence with his own consent, who was not present at the reception of unless it appeared that he was prejudiced the verdict, who does not take advantage in some way by such absence. In this case, of this fact upon his motion for a new upon consultation between the attorneys for trial, cannot thereafter take advantage of the defendant and the court, in the ab- the same, was considered upon an appeal sence of both the defendant and the prose to the United States Supreme Court from cuting attorney, at the request of the at- a decree of the Federal district court deny. torneys for the defendant, and upon the ing a petition for a writ of habeas corpus specific understanding that the agree in behalf of Frank, 237 U. S. 309, 59 L. ed. ment be reduced to writing, waiving the 35 Sup. Ct. Rep. 582. That court held presence of the defendant, if a verdict was that there was no denial of the due process returned in his absence, the court and the of law guaranteed by the United States Conatíorneys for the defendant believing that stitution in the practice established in the there was danger of a mob, and such action criminal courts of Georgia that the acbeing in the interest of the defendant, the cused may waive his right to be present defendant was conveyed to a jail in another when the jury renders its verdict, and that county. The waiver was prepared and such waiver may be given after as well as signed by the attorneys and other counsel before the event, and is to be inferred from in the case. The court states that in this the making of a motion for a new trial case it did no more than grant the request upon other grounds alone when the facts con veyed to it through defendant's counsel, respecting the reception of the verdict are that he be removed from the court and from within the prisoner's knowledge at the time the county for his own safety from threat.' of making such motion.

W. A, E.

judge, waived the presence of the defend-, county. He was not present when the verant at the reception of the verdict, without dict was received and the jury discharged, his knowledge or consent, and where the as he had the right in law to be, and as the verdict was received and the jury polled by law required he should be. He did not the court when the defendant was not pres. waive the right to be present, nor did he ent, but was confined in jail, and the defendant's counsel was also absent, and where authorize anyone to waive it for him, nor it appears that, when the defendant was consent that he should not be present. He sentenced to suffer death, he was present in | did not know that the verdict had been rencourt in person and by attorneys, and later, dered and the jury discharged until after within the time allowed by law, he made a the reception of the verdict and the dismotion for a new trial, which recited, among charge of the jury, and did not know of other things, his absence at the reception of

any waiver of his presence made by his the verdict, and that his presence had been counsel until after sentence of death had waived by his counsel, and his motion for a new trial was refused by the trial court,

been pronounced upon him. On the day and its judgment affirmed by the supreme the verdict was rendered, and shortly becourt, the defendant will be considered as fore the judge who presided at the trial of having acquiesced in the waiver, made by the cause began his charge to the jury, the his counsel, of his presence at the reception judge, in the jury room of the courthouse of the verdict, and he cannot at a subse wherein the trial was proceeding, privately quent date set up such absence as a ground conversed with two of the counsel of the to set aside the verdict in a motion made defendant, and in the conversation referred for that purpose.

to the probable danger of violence that the Appeal disorder at trial motion for

defendant would be in if he were present new trial.

4. In so far as the motion to set aside when the verdict was rendered, if the verdict the verdict relies on allegations of disorder should be one of acquittal; and after the within and without the court room and judge had thus expressed himself he repopular excitement as affecting the trial, quested the counsel, thus spoken to, to such matters peculiarly furnish grounds to agree that the defendant need not be present be included in a motion for a new trial, at the time the verdict was rendered and the under the practice in this state. In fact, contentions as to matter of that character the counsel did agree with the judge that the

In these circumstances

jury was polled. were included in the original motion for a new trial, and on examination as to the defendant should not be present at the renfacts were ruled against the movant, and dition of the verdict. In the same conversathe judgment was affirmed by this court. tion the judge expressed the opinion also to

the counsel that even counsel of the de(November 14, 1914.)

fendant might be in danger if they should

be present at the reception of the verdict. E to .

County to review a judgment dismiss Rosser and Arnold, did agree with the judge ing a motion to set aside a verdict convict that defendant should not be present at the ing defendant of murder. Affirmed.

rendition of the verdict. The defendant was

not present at the conversation, and knew Statement by Hill, J.:

nothing about any agreement made, as above Leo M. Frank filed his motion in writing, stated, until after the verdict was received which was afterwards amended, to set aside and the jury was discharged, and until after the verdict of guilty of murder rendered sentence of death was pronounced upon against him in the superior court of Fulton

him. Pursuant to the conversation above county. To this motion the state of Georgia stated, neither of defendant's counsel were interposed its demurrer, both general and present when the verdict was received and special. On the hearing of the demurrer, the jury discharged; nor was the defendant

1 and at the conclusion thereof, judgment was present when the verdict was rendered and rendered by the court on June 6, 1914, sus

the jury discharged. Defendant says that taining the demurrer upon each and every he did not give counsel, nor anyone else, ground, and dismissing the motion. To this

any authority to waive or renounce the judgment Leo M. Frank excepts, and as- right of the defendant to be present at the signs the same as error. From the motion

reception of the verdict, or to agree that it appears that the verdict of guilty of the defendant should not be present thereat; murder was received by the court on August that the relation of client and attorney did 25, 1913, and it was sought to be set aside not give them such authority, though counfor the following reasons:

sel acted in the most perfect good faith and At the time the verdict was received, and in the interest of the personal safety of the the jury trying the cause was discharged, defendant. Defendant did not agree that the defendant was in the custody of the law his counsel, or either of them, might be and incarcerated in the common jail of the absent when the verdict was rendered.

Defendant says, upon and because of each | noises that might occur upon the street; of the grounds above stated: The verdict that there was an open alleyway running was of no legal effect and was void, and in from Pryor street on the side of the courtviolation of article 1, § 1, 1 3, of the Con-house, and there were windows looking out stitution of the state of Georgia, which pro- from the courtroom into this alley, and vides that “no person shall be deprived of therein that crowds collected, and any life, liberty, or property, except by due noises in this alley could be heard in the process of law.” That the reception of the court room; that these crowds were boisterverdict in the "involuntary absence of the ous, and that on the last day of the trial, defendant” was in violation of and con- after the case had been submitted to the trary to the provisions of article 6, $ 18, 1, jury, a large and boisterous crowd of several of the Constitution of the state of Georgia, hundred people were standing in the street which provides that "the right of trial by in front of the court house, and as the jury, except where it is otherwise provided solicitor general came out they greeted him in this Constitution, shall remain invio with loud and boisterous applause, taking late.” That the reception of the verdict in him upon their shoulders and carrying him the absence of the defendant was contrary across the street into a building wherein his to and in violation of the provisions of the office was located; that this crowd did not 14th Amendment to the Constitution of the wholly disperse during the interval between United States, to wit: "Nor shall any the giving of the case to the jury and the state deprive any person of life, liberty, or time when the jury reached its verdict; that property, without due process of law; nor several times during the trial the crowd in deny to any person within its jurisdiction the court room, and outside of the court the equal protection of the laws.” That the room, which was audible both to the court reception of the verdict in the absence of and the jury, would applaud when the state the defendant was in violation of article 1, scored a point; a large crowd of people § 1, 1 5, of the Constitution of the state standing on the outside, cheering, shouting, of Georgia, to wit: “Every person charged and hurrahing, and the crowd in the court with an offense against the laws of this room signifying their feelings by applause state shall have the privilege and benefit of and other demonstrations, and on the trial, counsel." Because the trial judge (Hon. and in the presence of the jury, the trial L. S. Roan), upon considering “the motion judge in open court conferred with the for a new trial made by this defendant, chief of police of the city of Atlanta and after the reception of said verdict as above the colonel of the Fifth Georgia Regiment stated, rendered his judgment denying said stationed in Atlanta, which had the natural motion, and in rendering said judgment effect of intimidating the jury, and so instated that the jury had found the defend fluencing them as to make impossible a fair ant guilty, that he, the said judge, had and impartial consideration of defendant's thought about the cause more than any case. Indeed, such demonstrations finally other he had ever tried, that he was not actuated the court in making the request certain of the defendant's guilt, that with of defendant's counsel, Messrs. Rosser and all the thought he had put on this case he | Arnold, to have the defendant and counsel was not thoroughly convinced that Frank | themselves to be absent at the time the was guilty or innocent, but that he did not verdict was received in open court, because have to be convinced, that the jury was con- the judge apprehended violence to the devinced, that there was no room to doubt fendant and his counsel; and the apprehenthat, and that he felt it his duty to order sion of such violence naturally saturated that the motion for a new trial be over the minds of the jury, so as to deprive the ruled.” That the judge, in denying to the defendant of a fair and impartial considdefendant a new trial in the case, did not, eration of his case, which the Constitution as shown by his statement, give to the de- of the United States, in the 14th Amendfendant the judicial determination of the ment hereinbefore referred to, entitled him motion to which the defendant was entitled to. by law. That the judge, being constituted On Saturday, August 23, 1913, previous by law as one of the triors, did not afford to the rendition of the verdict on August to the defendant the protection which the 25th, the entire public press of Atlanta aplaw guarantees, nor the due process of law. pealed to the trial court to adjourn court

It was further alleged that the defendant from Saturday to Monday, owing to the was denied the due process of law, and the great public excitement, and the court adequal protection the laws, because the journed from Saturday, 12 o'clock m. to court room wherein his trial was had had Monday morning, because it felt it unwise a number of windows on the Pryor street to continue the case that day, owing to the side, looking out on the public street of great public excitement, and on Monday Atlanta, and furnishing easy access to any' morning the public excitement had not subsided, and was as intense as it was on binding on the defendant, Leo M. Frank, Saturday previous. When it was announced and effectively constitutes a waiver. (5) that the jury had reached a verdict, the Because the motion, in conjunction with the trial judge went to the court room and decision of the supreme court of Georgia found it crowded with spectators, and, in the case of Leo M. Frank v. State of fearing violence in the court room, the trial Georgia, affirmatively shows that Frank, judge cleared of spectators, and the jury after a knowledge of this waiver on the was brought in for the purpose of delivering part of his counsel, acquiesced in the same their verdict. When the verdict of guilty and took steps affirmatively indicating a was announced, a signal to that effect was waiver of such conduct on the part of his given to the crowd on the outside. The counsel. (6) Because the motion affirmalarge crowd of people standing on the out- tively shows that the jury returning the side cheered and shouted as the jury was verdict were polled, and the presence of the beginning to be polled, and before more defendant is necessary for himself mainly in than one juror had been polled the noise order to exercise this right to poll the jury. was so loud and the confusion so great that (7) Because the motion and the decision the further polling of the jury had to be of the supreme court of Georgia in the case stopped, so as to restore order, and so great above named affirmatively discloses that the was the noise and confusion and cheering verdict of guilty was received in open court and confusion from without that it was and a poll of the jury demanded on behalf difficult for the court to hear the responses of the defendant, and that the poll of the of the jurors as they were being polled, jury was in conformity with every requirethough the court was only 10 feet distant ment of law. from the jury. All of this occurred during the involuntary absence of the defendant, Mr. Henry A. Alexander, with Messrs. he being at the time confined in jail as Tye, Peeples, & Jordan, Herbert J. above set forth.

Haas, and Leonard Haas, for plaintiff in The state of Georgia, responding to the error: motion to set aside the verdict, said by way In trials for capital felonies, the accused of demurrer that the motion should be dis- has an absolute right to be present in permissed for the following reasons: (1) Be- son at each and every stage. Such presence cause a motion to set aside a verdict or is essential to the validity of a verdict of judgment of the court should be, under the guilty, and both he and his counsel are inlaw, predicated upon some defect appearing capable, on grounds of public policy, of on the face of the pleadings or record, and waiving the presence of the accused at any the motion filed is not one predicated upon stage of the trial. any defect appearing of the face of the Wells v. Terrell, 121 Ga. 368, 49 S. E. pleadings or the record. (2) Because it 319; Bagwell v. State, 129 Ga. 170, 58 affirmatively appears from the motion that S. E. 650; Tiller v. State, 96 Ga. 430, 23 the defendant, Leo M. Frank, made a mo- S. E. 825; Wade v. State, 12 Ga. 25; Hoption for a new trial, which was denied by son v. State, 116 Ga. 90, 42 S. E. 412; Mar. the court, and as a matter of law, if the tin v. State, 51 Ga. 567, 1 Am. Crim. Rep. verdict was rendered at a time when the 536; Bonner v. State, 67 Ga. 510; Wilson v. defendant was not present in court, such State, 87 Ga. 583, 13 S. E. 566; Nolan v. irregularity should have been included State, 53 Ga. 137; Barton v. State, 67 Ga. among the grounds of the motion for a new 653, 44 Am. Rep. 743; Hopt v. Utah, 110 trial; and as a matter of law is conclu- U. S. 574, 28 L. ed. 262, 4 Sup. Ct. Rep. 202, sively presumed to have been incorporated 4 Am. Crim. Rep. 417; Ball v. United and embodied in the motion for new trial, States, 140 U. S. 118, 35 L, ed. 377, 11 Sup. which motion was heard and denied, as Ct. Rep. 701; Schwab v. Berggren, 143 U. S. shown by the petition. (3) Because the 442, 36 L. ed. 218, 12 Sup. Ct. Rep. 525; motion shows a course of conduct on the Lewis v. United States, 146 U. S. 370, 36 part of the defendant which amounts to an L. ed. 1011, 13 Sup. Ct. Rep. 136; State v. estoppel, and that the motion and the rec- Hughes, 2 Ala. 102, 36 Am. Dec. 411; Eliza ord of the decision of the case of Leo M. v. State, 39 Ala. 693; Waller v. State, 40 Frank v. State, rendered by the supreme Ala. 332; Slocovitch v. State, 46 Ala. 227; court of Georgia, affirmatively shows a Cook v. State, 60 Ala. 39, 31 Am. Rep. 31, course of conduct that amounts to and 3 Am. Crim. Rep. 304; Wells v. State, 147 constitutes an estoppel. (4) Because the Ala. 140, 41 So. 630: Harris v. State, 153 motion affirmatively discloses that counsel | Ala. 19, 49 So. 458; Sneed v. State, 5 Ark. for the defendant agreed with the court that | 431, 41 Am. Dec. 102; Cole v. State, 10 the defendant should not be present at the Ark. 318; Sweeden v. State, 19 Ark. 205; rendition of the verdict; that this agree. Warren v. State, 19 Ark. 214, 68 Am. Dec. ment on the part of counsel was and is '214; Brown v. State, 24 Ark. 620; Osborn

v. State, 24 Ark. 629; Gore v. State, 52, State, 56 Tex. Crim. Rep. 396, 133 Am. St. Ark. 285, 5 L.R.A. 832, 12 S. W. 564; Peo- Rep. 986, 120 S. W. 485; Sperry v. Com. ple v. Kohler, 5 Cal. 72; People v. Ebner, 9 Leigh, 623, 33 Am. Dec. 261; Hooker v. 23 Cal. 159; People v. Beauchamp, 49 Cal. Com. 13 Gratt. 763; Jackson v. Com. 19 41; People v. Higgins, 59 Cal. 357; Green Gratt. 656; State v. Greer, 22 W. Va. 800; v. People, 3 Colo. 68; Smith v. People, 8 State v. Stevenson, 64 W. Va. 392, 19 L.R.A. Colo. 457, 8 Pac. 920, 5 Am. Crim. Rep. (N.S.) 713, 62 S. E. 688; State v. Sutter, 615; State v. HurlŁ t, 1 Root, 90; Holton v. 71 W. Va. 371, 43 L.R.A. (N.S.) 399, 76 State, 2 Fla. 500; Gladden v. State, 12 S. E. 811; French v. State, 85 Wis. 400, Fla. 562; Summeralls v. State, 37 Fla. 162, 21 L.R.A. 402, 39 Am. St. Rep. 855, 55 53 Am. St. Rep. 247, 2) So. 242; Holliday N. W. 566, 9 Am. Crim. Rep. 348; Co. v. People, 9 Ill. 111; Harris v. People, 130 Litt. 227b; 2 Hale, P. C. 300; Rex v. LadIll. 457, 22 N. E. 826; State v. Hutchinson, singham, T. Raym. 193; 4 Bl. Com. 360; 95 Iowa, 566, 64 N. W. 610; State v. Myrick, 1 Chitty, Crim. Law, 636; Bacon, Abr. 38 Kan. 238, 16 Pac. 330; Temple v. Com. title “Verdict” p. 308; 2 Barbour, Crim. 14 Bush, 769, 29 Am. Rep. 442; State v. Law, 365; Archbold, Crim. Pl. & Ev. 23d Ford, 30 La. Ann. 311; State v. Bradley, ed. p. 186; Abbott, Trial Brief, Criminal 30 La. Ann. 326; State v. Christian, 30 Causes, 2d ed. 718; Hughes, Crim. Law, La. Ann. 367; State v. Thomas, 128 La. § 3370; Clark, Criminal Proc. p. 423; 813, 55 So. 415; Com. v. Tobin, 125 Mass. Wharton, Crim. Pl. & Pr. 8th ed. § 741; 203, 28 Am. Rep. 220; State v. Reckards, 21 1 Bishop, New Crim. Proc. § 271(2); Diaz Minn. 47; Scaggs v. State, 8 Smedes & M. v. United States, 223 U. S. 442, 56 L. ed. 722; Price v. State, 36 Miss. 531, 72 Am. 500, 32 Sup. Ct. Rep. 250, Ann. Cas. 1913C, Dec. 195; Stubbs v. State, 49 Miss. 716, 11138; Stoddard v. State, 132 Wis. 520, 112 Am. Crim. Rep. 608; Finch v. State, 53 N. W. 453, 13 Ann. Cas. 1211; State v. Miss. 363; Sherrod v. State, 93 Miss. 774, Gorman, 113 Minn, 401, 32 L.R.A. (N.S.) 20 L.R.A. (N.S.) 509, 47 So. 554; Warfield 306, 129 N. W. 589; State v. Waymire, 52 v. State, 96 Miss. 170, 50 So. 561; McLen-Or. 281, 21 L.R.A.(N.S.) 56, 132 Am. St. don v. State, 96 Miss. 250, 50 So. 864; Rep. 699, 97 Pac. 46; State v. Way, 76 Kan. Stanley v. State, 97 Miss. 860, 53 So. 497; 928, 14 L.R.A. (N.S.) 603, 93 Pac. 159; Corbin v. State, 99 Miss. 486, 55 So. 43; Gore v. State, 52 Ark. 285, 5 L.R.A. 832, State v. Buckaer, 25 Mo. 172; State v. 12 S. W. 564; Humphrey v. State, 3 Okla. Cross, 27 Mo. 332; State v. Braunschweig, Crim. Rep. 504, 139 Am. St. Rep. 972, 106 36 Mo. 397; State v. Davis, 66 Mo. 684, 27 Pac, 978; 22 Enc. Pl. & Pr. 927. Am. Rep. 387; State v. Smith, 90 Mo. 37, Messrs. E. A. Stephens and Hugh M. 59 Am. Rep. 4; 1 S. W. 753; Burley v. Dorsey, for the State: State, 1 Neb. 385; State v. Peacock, 50 The doctrine of waiver and ratification is N. J. L. 34, 11 Atl. 2,0; People v. Perkins, recognized and applied in criminal cases. 1 Wend. 91; Maurer v. People, 43 N. Y. 1; Cawthon v. State, 119 Ga. 395, 46 S. E. State v. Blackwelder, 61 N. C. (Phill. L.) 897; Nolan v. State, 53 Ga. 137, 55 Ga. 38; State v. Bray, 67 N. C. 283; State v. 521, 21 Am. Rep. 281, 1 Am. Crim. Rep. Jenkins, 84 N. C. 812, 37 Am. Rep. 643; 532; Smith v. State, 59 Ga. 514, 27 Am. State v. Pay'or, 89 N. C. 539; State v. Rep. 393; Martin v. State, 51 Ga. 567, 1 Kelly, 97 N. C. 404, 2 Am, St. Rep. 299, Am. Crim. Rep. 536; Wilson v. State, 87 2 S. E. 185; State v. Cherry, 154 N. C. Ga. 583, 13 S. E. 566; Wade v. State, 12 624, 70 S. E. 295; Wilson v. State, 2 Ohio Ga. 25; Tiller v. State, 96 Ga. 430, 23 S. E. St. 319; Sargent v. State, 11 Ohio, 472; 825; Miller v. State, 13 Ga. App. 440, 79 Rose v. State, 20 Ohio, 31; Day v. Terri. S. E. 232; Richards v. State, 136 Ga. 67, tory, 2 Okla. 409, 37 Pac. 806; Le Roy v. 70 S. E. 868; Bagwell v. State, 129 Ga. 170, Territory, 3 Okla. 596, 41 Pac. 612; Humph- 58 S. E. 650; Baldwin v. State, 138 Ga. rey v. State, 3 Okla. Crim. Rep. 504, 139 | 349, 75 S. E. 324; Barton v. State, 67 Ga. Am. St. Rep. 972, 106 Pac. 978; Dunn v.

653, 44 Am. Rep. 743; Bonner v. State, 67 Com. 6 Pa. 384; Prine v. Com. 18 Pa. 103; Ga. 510; Ezzard v. State, 11 Ga. App. 30, Dougherty v. Com. 69 Pa. 286; State v.

74 S. E. 551; Mitchum v. State, 11 Ga. 630; Atkinson, 40 S. C. 363, 42 Am. St. Rep. Durham v. State, 70 Ga. 264; Hoye v. 877, 18 S. E. 1021; State v. France, 1 Overt. 434; Andrews v. State, 2 Sneed, 550; Clark State, 39 Ga. 719; Lyons v. State, 7 Ga. v. State, 4 Humph. 254; Hutchinson v.

App. 50, 66 S. E. 149; Wiggins v. Tyson, State, 3 Coldw. 95; Stewart v. State, 7112 Ga. 750, 38 S. E. 86; Fannin v. Durdin, Coldw. 338; Percer v. State, 118 Tenn. 765, 54 Ga. 476; Schumpert v. State, 9 Ga. App. 103 S. W. 780; Shipp v. State, 11 Tex. App. 553, 71 S. E. 879; Hill v. State, 118 Ga. 46; Massey v. State, 31 Tex. Crim. Rep. 24, 44 S. E. 820; Daniels v. Towers, 79 371, 20 S. W. 758; Hill v. State, 54 Tex. Ga. 785, 7 S. E. 120; Dean v. State, 43 Ga. Crim. Rep. 646, 114 S. W. 117; Derden v. '218; 22 Enc. Pl. & Pr. p. 929; Rhodes v.

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