governed alone by it; that the conversation referred to was a general, running conversation, in which all of the participants said that, if the rumors were true, Hackett ought to be hung. In connection with this affidavit the state offered one from the clerk and deputy clerk of the superior court, and from the sheriff and deputy sheriff of Bartow county, that Baker is a man of good character, an excellent citizen, and deserves the esteem and confidence of the people, and that his intelligence and uprightness specially qualify him to serve as a juror in any case. If the juror had formed and expressed any opinion as to the guilt of the plaintiff in error from having heard any part of the evidence, he was, of course, disqualified; and, if his mind was not perfectly impartial between the state and the plaintiff in error at the time of the trial, he could not legally have been a member of the jury to pass upon the guilt or innocence of the plaintiff in error. Whether he had formed such an opinion, or whether he was impartial, was a question of fact. Baker admits that he did say, from common rumor and general talk, that Hackett ought to be hung, and this is the extent to which his admission goes. It was therefore incumbent upon the judge of the superior court, in passing upon this ground of the motion, to take into consideration the evidence adduced on that question. He did so, and, by overruling it, he in effect decided that the evidence did not show that Baker was legally disqualified to sit as a juror on the trial of the case. We cannot say so, either, and on the evidence reverse this finding of the judge, who had better opportunities to determine the facts than we have. In the case of Myers v. State, 97 Ga. 76, 25 S. E. 252, it was ruled that "ordinarily the question as to whether or not a verdict is sufficiently impeached by showing the disqualification of a juror is a question where, upon a conflict of evidence, the discretion of the presiding judge should prevail, unless the weight of the evidence be so overwhelming against the finding of the circuit judge upon that point as that it can be fairly stated that he did not properly exercise the discretion vested in him by law." The evidence adduced here is not overwhelming against the finding of the circuit judge. It is in conflict, and as to what Baker said or did not say, as expressive of the condition of his mind, rests on his own evidence and that of the two witnesses, who have not exactly the same recollection as to the details of the conversation. Baker explains what he did say, deposes to his entire freedom from prejudice, and states absolutely that he had never heard any of the evidence on oath until he was accepted as a juror. Baker was either a prejudiced juror, or he was not. Being a question of fact, the circuit judge, after considering the same, decided that he was not. He might well have done so, under the evidence, and we cannot say that his determination was wrong.

2. Another ground of the motion for new

trial is an exception to a part of the charge which the court gave to the jury in the following language: "Now, upon the question of recommendation for mercy, that is a matter the law leaves entirely with you, and I give you this in charge: You may recommend, if, in your judgment, you think you are justified in so doing. It is for you to say whether the facts-all the circumstances in the case-warrant you in making such a recommendation; but you are not limited or circumscribed in any respect, and the law prescribes no rule for the exercise of your discretion. It is a matter entirely with you." So far as I am concerned, if it were an original proposition, I should not hesitate to pronounce this charge error, and wholly unwarranted by the law. The quality of mercy is free. Whether it shall be exercised or not in a capital case is for the jury alone to determine, and the judge may not lawfully abridge this right by instructions which even in the slightest degree qualify its exercise. But I am bound by previous rulings of this court. In the case of Inman v. State, 72 Ga. 269, where the judge, in the trial of a capital case, charged the jury that: "If you find him guilty, and the case be one in which you think you are justified in doing so (the facts and circumstances justify you in doing so), you can say in your verdict that 'we recommend that he be imprisoned in the. penitentiary for life'; and, upon that recommendation, it would be my duty to inflict that punishment upon him,"-this court ruled: "We do not think that the language used by the court was calculated to deprive, circumscribe, or restrict the jury in the exercise of their rights to recommend that the accused be imprisoned for life in the penitentiary.

Yet we think, in cases like this, the better practice would be for the court to call the attention of the jury to the law, and merely state to them, if they thought proper, they might, in addition to the verdict of guilty, recommend that defendant be imprisoned in the penitentiary for life." While I readily acknowledge the binding force of this decision, I may yet be permitted to say that I am at a loss to determine why, if the language of the charge did not circumscribe or restrict the jury in the exercise of their right to recommend, it would be the better practice not to use the language of the charge. Again, in the case of Valentine v. State, 77 Ga. 470, this court held that it was not error for the judge, in instructing the jury on the subject of their right to recommend the defendant to mercy, to charge as follows: is for you to say from the evidence-from all the facts and circumstances of the casewhether, in the event you find him guilty, you are warranted in recommending him to imprisonment in the penitentiary for life; and, if you render a verdict with that recommendation, the court is bound to sentence him accordingly." And in the case of Cyrus v. State, 102 Ga. 616, 29 S. E. 917, where, aft

"It

er charging the law properly as to the right of the jury to recommend the defendant to mercy, the judge added: "If you think this Is a case in which you will be justified in recommending a life imprisonment in the event of your finding the defendant guilty, you have a right to make such recommendation, as it is for you to say, in the event of your finding the defendant guilty, whether the facts and circumstances in this case warrant you in making such a recommendation. It is all a question for you, under the law and the evidence," this court said that it could not hold, on the authority of the Cases of Inman and Valentine, supra, that such added charge was a cause for a new trial. The court, however, in that case, said it would be decidedly better to omit the use of the word "justified" and of the word "warrant," and substitute in their stead language leaving the jury free to dispose of the question of recommending or not recommending life imprisonment, without any intimation from the bench as to what should control or influence them in reaching a conclusion upon this matter. Under the rulings of these adjudicated cases, we are bound to hold that the judge committed no reversible error in using the language complained of in his charge to the jury. But we are bound to say, even under the authorities referred to, that it is verging close to the line which separates the prerogatives of the judge from the rights of the jury. 3. The sixth, seventh, and eighth grounds of the motion for a new trial really involve an assignment of error because the court failed to give in charge to the jury the law relating to voluntary manslaughter. The specific error of which complaint is made is that the court charged the jury that they could find but one of three verdicts (that is, guilty, guilty with recommendation, and not guilty), and that the court, after the conclusion of the evidence, announced to counsel, in the presence of the jury, that there were but three verdicts which might be made by the jury (the same as above stated), and that the court did not charge the law of voluntary and involuntary manslaughter, so that we can fairly treat these grounds as complaining that the court did not charge the law of manslaughter. We think it was not error to refuse to charge the jury the law of manslaughter, either voluntary or involuntary, under the facts shown by the record. construe the evidence, the plaintiff in error was guilty of murder, if the witnesses spoke the truth. The deceased made no assault upon the accused, nor were there any circumstances equivalent to an assault. Indeed, the evidence is painfully silent as to the existence of any fact which would either legally or morally mitigate the guilt of the accused, or afford any reason, sufficient or in

As we

sufficient, for the homicide. It appears to have been deliberately committed, without any justification or the shadow of an excuse. The motion for a new trial should not have been granted for any reason stated in these three grounds.

4. It is further complained in the motion for new trial that the court erred in charging the jury that: "In determining what weight, if any, you give to the statement of the defendant, you should take into consideration his manner upon the stand; his manner of making his statement; what he says, and how he says it; consider that he is not under oath; that he is under no penalty to speak the truth; that he is not subject to cross-examination without his consent; and you should also consider his interest that he has in the case, and determine whether or not you give his statement any faith or credit, and, if so, how much. If you should determine that you will give his statement any faith or credit, you should consider it along with all the testimony in the case, and determine whether he be guilty as charged." In the case of Keller v. State, 102 Ga. 506, 31 S. E. 92, this court held that it was not error for the judge, in instructing the jury in relation to the prisoner's statement, to charge that, if they should find the statement consistent and true, they had a right to believe it in preference to the sworn testimony in the case; that they should not do so carelessly and capriciously, but under their oaths as jurors, considering the statement in connection with the sworn testimony in the case, and, testing it in the light of that testimony, give it such weight as the jury might think proper. To so much of that decision as contained the approval of that charge I entered my dissent. Subsequent reflection has but strengthened my conviction that the charge there given was error. But, however this may be, the ruling made upholds this charge, and, under the authority of that case, it was not error. It is my opinion that in giving instructions to the jury in the trial of a criminal case, where a statement has been made by the defendant, the purposes of the law are fully complied with when the trial judge limits his instructions to the words of the statute.

5. There was no error in the charge complained of in the ninth ground of the amended motion for new trial, and we do not think, after a careful consideration of the record, that the verdict was contrary to law, or to the evidence, or to principles of Justice. On the contrary, the evidence is amply sufficient to sustain the verdict, and to leave no reasonable doubt in the minds of the jury that the accused was guilty as charged. Let the judgment of the court below be affirmed. All the justices concurring.

(108 Ga. 49 )

BANYON v. STATE.. (Supreme Court of Georgia. July 19, 1899.) CRIMINAL LAW-CERTIORARI-NOTICE-ELECTIONS-ILLEGAL VOTING EVIDENCE.

1. A failure to serve the solicitor general with notice of the sanction of a petition for certiorari in a criminal case is not ground for dismissing the bill of exceptions in this court, assigning error upon the judgment of the court below overruling such petition.

2. An indictment which charges the defendant with illegally voting at a municipal election legally and regularly held at a certain time and place, on account of the defendant's being then and there a defaulter in a certain sum for taxes due by him to the state and county for a given year, sufficiently conforms to the requirements of the law in stating the offense.

3. Where a defendant is charged with the offense of illegally voting at a certain election, and the only evidence introduced on the trial in the county court tending to show that he actually voted at such election is a list of voters kept by one of the managers of the election, with the name of the defendant appearing thereon as a voter, a verdict finding the defendant guilty is contrary to the evidence; and the court erred in not sustaining the defendant's petition for certiorari on this ground.

LEWIS, J. Jim Banyon was tried in the county court of Dooly county under an indictment found by the grand jury of that county, charging him with the offense of illegal voting. The indictment charged the defendant "with the offense of a misdemeanor, for that the said Jim Banyon on the 11th day of January, 1899, in the county aforesaid, then and there unlawfully, with force and arms, there being then and there legally and regularly held a municipal election for mayor and three aldermen, did vote illegally at said election; he, the said Jim Banyon, being then and there a tax defaulter in the sum of $2.30, same amount of taxes due by him to the state and county for the year 1897, which amount he had had then and there an opportunity of paying agreeably to law. Contrary to the laws of said state, the good order, peace, and dignity thereof." To this indictment the defendant filed a demurrer on the grounds (1) that it was void for want of certainty, in that it failed to give him notice of the particular charge he was called upon to answer, and thereby precluded him of his right to meet said charge, and refute the same with proper testimony; (2) said indictment fails to allege to what county the defendant is due taxes for the year therein specified; (3) said indictment fails to allege that the said taxes were not paid for the year therein stated. The court overruled the demurrer, and the defendant, after being placed

on trial, was found guilty by the jury. He then petitioned the superior court for certiorari, which was sanctioned by the judge; but upon hearing the petition, and the answer of the judge of the county court thereto, the new trial prayed for in the petition was refused. On this judgment refusing the prayer of the petition for certiorari the defendant assigns error in his bill of exceptiors.

1. The defendant in error filed a motion to dismiss the writ of error in this case on the following ground: "Because the solicitor general of said county and circuit was not served with a notice of said sanction of certiorari, and of the time and place of the hearing of the same." It appears from the record that service of the petition for certiorari, and the order of court sanctioning the same, was acknowledged by W. B. Howard, as solicitor of the county court of Dooly county. When the case was called for trial in the superior court on the petition and the answer of the judge thereto, it does not appear that there was any motion to dismiss the same because service of the sanction of the writ of certiorari was not made upon the solicitor general of the circuit. Had such a motion been made, under the ruling of this court in Butts v. State, 90 Ga. 450, 16 S. E. 96, this would have been a good ground for dismissing the petition for certiorari; but no such motion having been made, and therefore the question not having been passed on by the court below, it, of course, constitutes no ground for dismissing the writ of error. As the case was tried before the judge of the superior court below on its merits, the presumption is that the state was there represented by proper counsel, and a failure to make such a motion amounted to a waiver by the state of notice that the petition for certiorari had been sanctioned.

2. Among the grounds of error complained of in the bill of exceptions, as well as in the petition for certiorari, was the judgment of the court overruling defendant's demurrer to the indictment. We think the indictment in this case stated the offense so plainly that the nature of the crime charged could be easily understood by the jury. This is all that the law requires upon the subject. The allegation in the indictment that the defendant was a tax defaulter, in that he failed to pay the amount of taxes due by him to the state and county for the year 1897, clearly refers to the state and county where the indictment was found, and could bear no other reasonable construction, they being the only state and county named or referred to in the indictment. We think, therefore, that the court was correct in overruling the demurrer. 3. It appears from the petition for certiorari and the answer of the judge of the county court thereto that substantially the following case was made out by the state on the trial in the county court: The defendant had paid no taxes for the year 1897, and returned none on the digest. The tax collector

testified that he supposed that the defendant owned property, such as household goods; he issued execution against him by seeing his name on the city registration list and seeing him around town. A tax fi. fa. was introduced, issued December 20, 1898, for $2.30, state and county taxes for the year 1897. It was shown that a municipal election was held in Cordele on January 11, 1899. A list of voters kept during the election was introduced, over the objection of defendant's counsel, showing the name of Jim Banyon, written there by one of the managers of the election. This manager testified that he recorded the name, and was satisfied he would not have done so if the man had not voted. A ballot was also introduced, which was likewise objected to by defendant, corresponding to the number on the list of voters, upon which ballot appeared the names of the candidates in that election. The defendant introduced no evidence. There was no testimony whatever identifying the defendant as the person who actually voted in that election under the name of Jim Banyon. The petition for certiorari alleges that the manager of the election, introduced by the state, swore that he took the ballots as they were offered, and in each instance received the name as given by the voter, and that he did not recollect seeing the defendant vote, and did not know whether he voted or not. This is not contradicted by the answer of the judge who tried the case in the county court. There was no proof that defendant was even seen at the polls that day. Conceding that there was evidence sufficient to show that this defendant was a tax defaulter, the only testimony relied on to show the further material fact that he actually voted at the election named in the indictment is the fact that a manager of the election wrote his name on the list of voters. It does not even appear from the testimony that there was no other person of the same name in the county; and we do not think that, considering the nature of popular elections in this country, it is necessarily a matter of unreasonable inference that what are known as "floating voters" sometimes cast their ballots under assumed names, and usually select the name of some person on the registry list not present, in order to insure the ballot being received by the managers. The law presumes the innocence of every defendant until his guilt is made to appear beyond a reasonable doubt; but to authorize a conviction of illegal voting simply because the defendant's name appears upon the election papers, without any evidence whatever that it was there by his authority or consent, and without any testimony that he was even present at the election, we think would be reversing the order of the above rule. We do not think there was any error in admitting the list of voters and ballot after the same had been identified by the officers of the election. These papers constituted a legitimate link in the chain of the

state's case. But alone they cannot furnish proof of the guilt of the defendant. Judgment reversed. All the justices concurring.

(108 Ga. 238)

VAUGHN et al. v. GLOER.

(Supreme Court of Georgia. July 21, 1899.)

APPEAL FROM JUSTICE.

Where the amount claimed in a suit in a justice's court is more than $50, the party disappointed by the judgment rendered therein has the right to enter an appeal to the superior court, whether any disputed issue of fact was involved in the trial or not.

(Syllabus by the Court.)

Error from superior court, Elbert county; S. Reese, Judge.

Rule by C. D. Vaughn & Co. on constable for not making amount of mortgage fi. fa. I. J. Gloer claimed the same under execution. From an order of the superior court dismissing appeal of Vaughn & Co. from a justice, Vaughn & Co. bring error. Reversed.

Z. B. Rogers and J. N. Worley, for plain tiffs in error. T. L. Adams and John P Shannon, for defendant in error.

FISH, J. Vaughn & Co. brought a rule iL a justice's court against Cleveland, a constable, for not making the amount due or a mortgage fi. fa. for $60 principal and $2.80 interest, which they had placed in his hands for levy upon and sale of the property desig nated in the execution. The constable answered that he had in his hands $52.82, the proceeds of the property mentioned in the mortgage f. fa.; that there were two executions in his hands, claiming this fund, which executions he exhibited to the court, and asked the court to pass an order directing to which fi. fa. the money should be paid. The two fi. fas. which he brought into court and exhibited with his answer were the mortgage fi. fa. of Vaughn & Co., and an execution in favor of Gloer for $21.40 principal and $3.20 interest. The judgment rendered by the justice was that, of the money in the hands of the constable, $17.20 should be paid on the Gloer execution, and the remainder to the mortgage fi. fa. of Vaughn & Co. Vaughn & Co. entered an appeal to the superior court. When the case came on for trial in the superior court, counsel for Gloer moved to dismiss the appeal upon the ground that certiorari, and not ap peal, was the way in which the case should have been brought up from the lower court. The court sustained this motion and dismissed the appeal, and the appellants excepted.

The error assigned in the bill of exceptions is that the court erred in holding that the case could not be brought from the justice's court to the superior court by appeal. Counsel for the defendant in error contend here that there were no disputed issues of fact involved in the trial of the case in the justice's

court, and therefore certiorari was the exclusive means for taking the case to the superior court. The plaintiffs in the rule against the constable claimed the sum of $60 principal, besides interest, upon the mortgage fi. fa. which they had placed in the constable's hands for the purpose of having the property described in the execution levied upon and sold, and the proceeds applied to the payment of the fi. fa. They ruled the constable for this amount. The answer of the constable showed that he had in his hands the sum of $52.82, the proceeds of the sale of the property designated in the mortgage execution, and the plaintiffs claimed that the whole of this sum should be applied to their fi. fa. From this we think it clearly appears that the amount claimed in the suit (that is, the rule against the constable) was more than $50. This being the case, the plaintiffs in the rule had the right to appeal the case to the superior court, whether there was any disputed issue of fact involved in the trial or not. The fact that the losing party in a case tried on its merits in a justice's court, where the amount claimed is over $50, and no issue of fact is involved, has the right to have the case reviewed in the superior court by certiorari, does not deprive him of the right, given to him by the statute, of entering an appeal to the superior court. Brown v. Robinson, 91 Ga. 275, 18 S. E. 156; Dowdle v. Stein, 99 Ga. 661, 26 S. E. 53. In Toole v. Edmondson, 104 Ga. 776, 31 S. E. 25, Mr. Jus tice Cobb collates the prior decisions rendered by this court in cases where the question arose whether certiorari or appeal was the means which a party seeking to review in the superior court a case tried in a justice's or a county court should have pursued. After a careful consideration and an able and discriminating discussion of these various decisions, he formulates a set of rules for the benefit of any one who may have to deal with this question. While the precise question which we have had under consideration in the present case was not directly involved in that case, we think the learned justice clearly demonstrates the soundness of the proposition that where the amount claimed in a suit in justice's court or a county court is more than $50, and no contested issue of fact is involved, the party disappointed in the result of the trial may take the case to the superior court either by appeal or certiorari. Judgment reversed. All the justices concurring.

(108 Ga. 235)

COSNAHAN v. JOHNSTON. (Supreme Court of Georgia. July 21, 1899.) EXECUTION SALE-TITLE OF PURCHASERHOMESTEAD RIGHTS-RES JUDICATA, Where, to the levy of a mortgage fi. fa. upon land, the defendant in fi. fa., as head of a family, filed a claim to the same upon the ground that it was exempt from the lien of the fi. fa., as homestead property, and where on the

trial of that issue a verdict was rendered finding the property subject, and an order granted by the court directing the fi. fa. to proceed, held, that a purchaser of the land at sheriff's sale acquired a good title, as against the homestead rights set up in the claim case by the defendant. This is true notwithstanding after such sale the husband may have duly established lost papers in the court of ordinary showing the existence of such homestead right before the mortgage was given.

(Syllabus by the Court.)

Error from superior court, Burke county; E. H. Callaway, Judge.

Action by M. B. Cosnahan against Phil. P. Johnston. Judgment for defendant, and plaintiff brings error. Affirmed.

F. W. Capers, C. Z. McCord, and W. T. Davidson, for plaintiff in error. Phil. P. Johnston and J. R. Lamar, for defendant in error.

SIMMONS, C. J. It appears from the record in this case that Cosnahan in 1878 had a homestead set apart to him as the head of a family, for his wife and minor children, in certain lands in Burke county. The homestead papers appear never to have been recorded, and to have been lost. In 1883 Cosnahan executed to C. A. Rowland a note secured by a mortgage on this tract of land. The mortgagee transferred the note and mortgage, before due, to R. C. Rowland, administrator, who foreclosed the mortgage on the land. Execution was issued, and it was levied by the sheriff. Cosnahan, as head of a family, filed a claim in which he set up that the land had been set apart to him as a homestead prior to the execution of the mortgage, and was therefore not subject to levy and sale. It seems from the record that Cosnahan established the lost homestead papers pending the trial of this claim case, but had not given to the plaintiff in fi. fa. any notice of his motion to establish the papers. On the trial of the claim case the jury returned a verdict finding the land subject, and the execution, by a judgment of the court, was ordered to proceed. Cosnahan made a motion for a new trial, which was overruled. He excepted, and brought the case to this court, where the judgment was affirmed; the court holding that the establishment of the lost papers was not binding upon the plaintiff in execution, as no notice was given him of the motion to establish,-the latter being made pending the claim case. See Cosnahan v. Rowland, 99 Ga. 285, 25 S. E. 647. The land was sold under the fi. fa., and purchased by Johnston, the defendant in error here. Subsequently Cosnahan moved in the court of ordinary to re-establish the homestead papers, and gave notice of his motion to C. A. Rowland, the original holder of the note and mortgage, and also claims to have served R. C. Rowland, who was a nonresident, by leaving a copy of the motion at the house of Johnston, who had represented him as his attorney in the claim case. The ordinary granted