was in motion, the conductor and another employé of the said railroad company caught petitioner and pulled her off the steps to the ground with great force." The fourth paragraph alleges that her injuries were "caused by being pulled violently to the ground as aforesaid by the conductor and other employé," and concludes as follows: "All of which petitioner charges was caused by the violent manner in which the employés of defendant took her from the said company's train." The sixth and most important paragraph of the petition is the only one that charges negligence upon the defendant company, or mentions negligence in any way. This paragraph reads as follows: "Petitioner further charges that it was through the willful negligence of defendant's employés that the train was started before she was able to reach the door of the car and alight therefrom, and that her injuries resulted from the forcible manner with which they took her from the car while in motion. Petitioner charges that the conduct of defendant's employés in putting her off the train was aggravating, both in act and intention, and that she is thereby injured in the sum of ten thousand dollars." We have quoted all of the declaration, as it appears in the record, which illustrates the theory upon which the plaintiff's case was based. No effort was made to show that it was through the willful negligence of any employé that the train was started. At most, so far as this feature of the case is concerned, the railroad company might be said to have started its train too quickly before giving this passenger a reasonable opportunity to alight. The case, however, by the evidence and by the argument of counsel for the defendant in error, is predicated upon her forcible removal. Certainly this is the theory of the declaration, by which the plaintiff must stand or fall. An examination of the evidence of the plaintiff herself shows that she failed to sustain this theory. It must be borne in mind that this court has more than once ruled that, where a party to a suit makes statements upon the stand concerning his or her case which are not harmonious, that one must be taken as true which bears most strongly against his or her right to recover. Concerning this point there are several statements. The plaintiff below says: "Train had started. Conductor took one arm, and flagman the other, and pulled me off. Train gave a lurch when I got to the door." Again: "I was undecided what to do, when conductor took one arm, and flagman the other, and jumped me to the ground with my baby." In another place she states: "They pulled me to the ground with a great deal of force. Having my baby, I couldn't well prevent the shock. I came down with a great deal of force." Immediately afterwards she says: "I had to steady myself. I just jumped; just gave way little; fell around." The truth of the matter is, accord

ing to her testimony, that she stood upon the steps of the platform, uncertain whether to alight or not while the train was in motion, and the conductor and another employé took hold of her and "jumped" her to the ground. It is not a case of her forcible removal, or one in which, against her will and her resistance, she was pulled violently to the ground. Her mother and two other lady passengers were helped to the ground by this same conductor and train hand just before this plaintiff. The mother testified concerning her daughter: "I got off before my daughter. She had the baby. She did not reach the ground before the cars began to move, and she stood on the steps, uncertain what to do. She was assisted by the conductor and flagman. The conductor took her by one arm, the, flagman by the other, and they jumped her from the steps of the car. She had her baby in her arms when she got off the car." This is all the testimony from the plaintiff's mother on the subject. Ac cording to the conductor, whose testimony showed that he had been acting in this capacity for more than 32 years, and had never before had any trouble, or even been a witness in a case against the railroad, the trair hand who assisted the conductor, and the other two lady passengers, who alighted at the same time, the plaintiff was assisted to the ground politely and gently, and nothing happened which could possibly have caused her any damage. This defense of the railroad company was supported by a great deal of corroborative evidence. If it served any useful purpose, it could be shown that the testimony adduced by the plaintiff in rebuttal merely corroborated her as to the fact that the train had started to move when she was on the steps. It is not consistent with the theory that any sort of violence, rudeness, or improper conduct was observed towards her. Recognizing, however, that the wide discretion of the jury could permit them to predicate the verdict upon the testimony of the plaintiff herself, no matter how great the preponderance on the other side, we have been careful to show what the theory of the plaintiff's declaration is, and her own evl dence, which, in our opinion, does not sustain that theory. Reluctant as we are to interfere, or seem to interfere, with the discretion of the jury and of the presiding judge, we nevertheless feel bound to reverse the judgment of the court below denying the motion for a new trial. This renders it unnec essary to consider the exceptions to the charge of the court with reference to the damages recoverable. It appearing from the evidence that the plaintiff was living apart from her husband, it is, perhaps, not amiss to say that we do not discover any error in this charge that could have been prejudicial to the defendant company.

Judgment reversed. All the justices concurring, except LUMPKIN, P. J., absent on account of sickness

(116 Ga. 557)

LOCKHART v. STATE. (Supreme Court of Georgia. Nov. 12, 1902.) INDECENT EXPOSURE-PUBLIC PLACEINDICTMENT.

1. To constitute a notorious act of public indecency, within the meaning of Pen. Code. § 390, it is essential that the act should have been committed at a time when and in a place where it could have been seen by more than one per

son.

2. An indictment charging one with "publicly and indecently exposing his secret or private parts of his person" in the presence of one named individual, but which fails to charge that the act was committed at a place where it could have been seen by more than one person, should have been quashed on a demurrer raising this objection.

(Syllabus by the Court.)

Error from city court of Columbus; J. L Willis, Judge.

Barney Lockhart was convicted of crime, and brings error. Reversed.

A. W. Cozart, S. T. Pinkston, and E. J. Wynn, for plaintiff in error. Peter Preer, Sol., for the State.

COBB, J. Barney Lockhart was arraigned in the city court of Columbus upon an indictment charging that he "on the 9th day of July, in the year nineteen hundred and two, in the county aforesaid, did then and there, unlawfully and with force and arms, publicly and indecently expose his secret or private parts of his person in the presence of one Mrs. E. M. Brumage, contrary to the laws of said state," etc. The accused demurred to the indictment upon various grounds,-among them being that the facts alleged did not constitute an offense against the laws of the state, that the indictment failed to allege that the act of indecency was in a place where it might have been seen by more than one person, and that it did not allege that the act was committed in a public place. The Penal Code provides that "any person who shall be guilty of any notorious act of public indecency, tending to debauch the morals, shall be guilty of a misdemeanor." Pen. Code, § 390. A person is not guilty of a notorious act of public indecency, within the meaning of this statute, unless the act is committed at a place where and at a time when more than one person was in a position to see it. See Morris v. State, 109 Ga. 351, 34 S. E. 577. It is not absolutely essential that this place should be a public road or street, but it is at least necessary that it should be at a place that is for the time being open to a portion of the public, as distinguished from a private room or dwelling, which at the time is occupied by the inmates only. But no matter where the place, it is absolutely essential, not that more than one person should have actually seen the exposure, but that more than one person was in a position where it would have been possible for them to have seen it. While the indictment charges that the ac

cused publicly exposed his private parts in the presence of one named person, it does not allege that this exposure was in a public place, or in any other place where it could have been seen by more than one person. The allegation of the indictment is that it was done in the presence of one person, and this was not a sufficient allegation to make out the offense. The accused was entitled to an indictment perfect both in form and substance, if he called for it at the proper time and in the proper way. He called for it before arraignment and by a special demurrer. The demurrer so filed was well taken, and the court erred in overruling it. See Adkins v. State, 103 Ga. 6, 29 S. E. 432, and cases cited.

Judgment reversed. All the justices concurring, except LUMPKIN, P. J., absent on account of sickness, and CANDLER, J., not presiding.

WALKER v. STATE.

(116 Ga. 537)

(Supreme Court of Georgia. Nov. 12, 1902.) HOMICIDE-TRIAL STATEMENT-OF ACCUSED CROSS-EXAMINATION-INSTRUCTIONS -POSTPONEMENT.

1. In making a statement the accused is not under examination as a witness, and his counsel has no right to ask him questions. If, in continuing his statement, the prisoner refers to the subject-matter of a suggestion or question which his counsel has made, and prior to such reference the accused has been notified by the judge that if he answered the suggestion or question he would subject himself to cross-examination, he is not even then lawfully subject to such examination. The right to make such a statement as he may deem appropriate is by law given to a prisoner on trial, and, unless he consents thereto, he cannot be compelled to answer questions on cross-examination.

2. The manner of conducting a trial of one charged with a criminal offense is largely within the discretion of the judge presiding, and when, after the evidence of both sides has been closed, the trial judge suspends the progress of the trial for a limited time, for the purpose of procuring the attendance of an important witness, such discretion is not abused.

3. No evidence appears in the record which authorized a charge in relation to threats.

4. The evidence was sufficient to authorize the judge to instruct the jury as to the law of conspiracy.

5. When it appeared on a trial for murder that the deceased was shot and wounded by the defendant, using a shotgun, and another person, using a pistol; that one of the wounds inflicted by the pistol was certainly mortal, and probably one or more of the wounds inflicted by the shotgun were so,-a charge to the effect that, if the jury should believe that no conspiracy existed between the parties doing the shooting, yet, if they should believe that the defendant inflicted on the deceased a wound that would have produced death, they were authorized to convict the defendant, provided the other elements of murder existed when he shot, was error. (a) To sustain a conviction of murder in such a case, the evidence must be such as to authorize the jury to find that death ensued as the result of the act of the defendant on trial.

(Syllabus by the Court.)

1. See Criminal Law, vol. 14, Cent. Dig. 1582

he is making his statement, in relation to the same; second, that the trial judge himself cannot do so. While counsel, as thus shown, has no right to ask the accused questions, nor to make suggestions to him, in relation to the matter of his statement, this court, in a later case (Echols v. State, supra), ruled that it was in the discretion of the judge to allow either to be done. In the present case the judge, in the exercise of his discretion, refused to allow the desired suggestion to be made. In doing so he did not abuse his discretion. In overruling the motion for a new trial, his honor who presided in the court below places his ruling by which he allowed cross-examination on the idea that the prisoner had been instructed by the court that, if he answered the question or suggestion made by counsel, it would subject him to cross-examination, and that, as the prisoner did answer the question or suggestion, he was thus lawfully subjected to a cross-examination. We cannot agree in this

view. We know of no rule of law or practice which sanctions it. The statute expressly declares that the prisoner shall not be compelled to answer questions on cross-examination should he think proper to decline to answer them. Furthermore, so long as the prisoner confines his statement to matters cornected with his defense, he has the right to refer to any particular phase of it, and this he may do without let or hindrance. While counsel has no right to make suggestions to him, or to put any question to him, if he do so, even while out of order, the prisoner may lawfully incorporate in his statement any matter which involves the subject of the suggestion or question, without placing himself at any disadvantage, because his right to make such a statement as he may deem proper is unqualified. It does not appear in this case tha: the prisoner consented to be crossexamined. His counsel objected to it, and when the court ruled that by answering the suggestion of question of his counsel the prisoner has subjected himself to cross-examination, under which ruling the prisoner was cross-examined, he committed an error which required the grant of a new trial

2. It is insisted that the trial judge erred, after both the state and the defendant had closed, in allowing the case to be suspended, on the application of the solicitor general, for the purpose of sending for a witness; the defendant at the time objecting to such suspension. To this ground of the motion the presiding judge attaches an explanatory note to the effect that on satisfactory proof submitted to the court of the existence of the witness, the importance of his testimony, and that the solicitor general had just heard of the same, he suspended the trial from 11:45 a. m. to 3:10 p. m. in order to secure the presence of the witness. We find no error in this. The manner of conducting a trial is largely in the discretion of the judge presiding, and that discretion was not abused

by a suspension of the trial for the limited time named for the purpose of procuring the evidence of an important witness. On the contrary, such a suspension seems to have been in the furtherance of justice.

3. An examination of the evidence fails to disclose that any witness testified as to threats made on the part of the accused against the deceased, and for that reason it was error on the part of the trial judge to charge the jury in relation to threats.

4. Complaint is made that the court erred in charging the jury in relation to the law of conspiracy. The accused, with one Jones, was jointly indicted, and the charge objected to appears to be a full and accurate presen tation of the law in relation to the liability of one of two conspirators for the acts of the other. There can be no objection to the matter of the charge, and, on a review of the evidence, we find there was evidence which tended to some extent, at least, to show that the accused and Jones had entered into a conspiracy to kill deceased.

5. It is claimed that the court erred in instructing the jury as follows: "After going through the evidence, if you should have a reasonable doubt on your mind that any conspiracy existed between these parties, Pomp Walker and Eli Jones, to take the life of this deceased Tom Holton, yet if you should be lieve from the evidence that wounds were inflicted upon the deceased by Eli Jones, and that the defendant in this case inflicted a mortal wound on Ton. Holton,-a wound that would have produced death,-then you would be authorized to return a verdict finding th defendant guilty of murder. provided you believe that all the other elements of murder existed about which I have charged you." When fairly construed, we think this por tion of the charge might be understood to have this meaning: That if both Jones and the accused inflicted wounds on the person of the deceased, and the wounds inflicted by the accused would have resulted in death, then the accused could be lawfully convicted, although, as a matter of fact, the wound inflicted by Jones may have been the immediate cause of the death. So construed, this charge war error. The state charged that Walker was guilty of murder in killing Holton. It was therefore incumbent upon the state, before a conviction for any grade of homicide could have been had, to prove not only that the deceased was killed, but that he died from the effects of a wound inflicted by the accused. Mr. Kerr, in his treatise on the Law of Homicide (section 31), on authority, lays down the following propositions: "Where the defendant inflicts a fatal blow, he cannot escape liability for his wrongful act from the fact that other blows were subsequently inflicted by other persons which hastened the death. But if one inflicts a mortal wound, and, before death ensues, another kills the same person by an independent act, without concert or procurement of the

Of

one who caused his first wound, the first person cannot be convicted of murder," etc. Mr. Wharton, in volume 1 of his Criminal Law (section 153), says: "When, after a wound, a new and independent causation intervenes, producing death, this relieves parties to whom such new causation is not imputable." And again, in the same volume (section 309a): "The death must be traced to the blow charged to the defendant." "It has been ruled that if a person receives a wound willfully inflicted by another, which might cause death, and death actually follows, the burden is on him who inflicted it to show that it did not cause the death." Hughes, Cr. Law & Proc. § 87. The converse of this proposition must be true; that is, if the person inflicting such wound in fact shows that it did not cause the death,-as, for instance, by showing that death actually occurred in consequence of a wound inflicted by another, -he meets this burden, and cannot be convicted. It is, however, unnecessary to cite authorities to support this proposition. course, in the case of a proven conspiracy, one may be found guilty, while another inflicted the wound which caused death. But in an individual case, one cannot be lawfully convicted of murder when it is shown that the deceased really died from another and a distinct wound, inflicted by a different person. We, of course, are not to be understood as saying that the evidence in this case shows that the deceased did not die from the wound inflicted by the accused. That is a question for legitimate determination by a jury. We are intending only to meet the proposition involved in the instruction to the jury under consideration. That instruction contains the proposition that, if the accused inflicted on the person of the deceased a wound that would have produced death, the jury would be authorized to return a verdict of guilty, if the other elements of murder existed. The charge was error. The jury could not have lawfully convicted the accused of murder, if he was acting independently when he inflicted the wound, unless they could find from the evidence that the wound inflicted was the cause of death.

Judgment reversed. All the justices concurring, except LUMPKIN, P. J., absent on account of sickness, and CANDLER, J., not presiding.

(116 Ga. 515)

PAULK v. STATE

(Supreme Court of Georgia. Nov. 12, 1902.) CRIMINAL LAW-REVIEW-MANSLAUGHTER.

1. It does not appear that the trial judge committed any error for the causes assigned in the special grounds of the motion for a new trial.

2. The finding by the jury that the accused was guilty of the offense of voluntary manslaughter was fully authorized by the evidence. Therefore the trial judge committed no error in overruling the motion for a new trial.

(Syllabus by the Court.)

(Supreme Court of Georgia. Nov. 12, 1902.) BIGAMY-INDICTMENT-FORMER ACQUITTAL

EVIDENCE-GENERAL OBJECTION.

1. An acquittal under an indictment charging that the accused committed bigamy by contracting an unlawful marriage with "Gussie Shingler" will not be a bar to a prosecution subsequently instituted under an indictment charging that, on the same date as that named in the first indictment, the accused committed bigamy by contracting an unlawful marriage with "Bessie Shingler," especially when it appears that, at the time upon which the marriages were alleged to have taken place, there were in life persons answering to the names both of Gussie and Bessie Shingler. The above is true notwithstanding it appears that the witness who testified before the grand jury by mistake gave the name of Gussie Shingler when he intended to give that of Bessie, and that the name of Gussie was inserted in the indictment under a misapprehension growing out of this mistake of the witness; there having been but one marriage, and it having been in fact contracted with Bessie, and not Gussie.

2. Where objection is made to specified evidence as a whole, part of which is admissible and part inadmissible, and the objection does not point out the objectionable portion, there is no error in admitting the entire evidence.

(Syllabus by the Court.)

Error from superior court, Decatur county; W. N. Spence, Judge.

R. C. Gully, alias C. R. Bridges, was convicted of bigamy, and brings error. Affirmed.

W. D. Sheffield, by, J. D. Harrison, for plaintiff in error. W. E. Wooten, Sol. Gen., by R. R. Arnold and Donalson & Fleming, for the State.

COBB, J. R. C. Gully, sometimes known as C. R. Bridges, was placed upon trial, charged with the offense of bigamy; the indictment charging that on November 7, 1901, the accused married one Bessie Shingler; his lawful wife, Annie Bridges, being then in life, which fact was known to him. The ac cused filed a special plea setting up that at a previous term an indictment had been preferred against him, charging him with the offense of bigamy, in that on November 7, 1901, he had married one Gussie Shingler, -his lawful wife, Annie Bridges, being then

2. See Criminal Law, vol. 14, Cent. Dig. § 1697.