tion. Whether the plaintiff in error acted as the agent of Nunnally, as we have stated, is a question of fact. In our judgment, the evidence on the trial of this case constituted him such agent, and not a principal; and, for this reason, the judgment of the court below is reversed. All the justices concurring; LUMPKIN, P. J., dubitante. (105 Ga. 700) BACON et al. v. CAPITAL CITY BANK et al. (Supreme Court of Georgia. Nov. 7, 1898.) "FAST" WRIT OF ERROR MISTAKE IN REMEDYBILL OF EXCEPTIONS. upon the application of other creditors, this order was modified. This modification was excepted to by Bacon & Co., and they filed their bill of exceptions, and had a writ of error brought to this court, under section 5540 of the Civil Code. When the case was called here, a motion was made to dismiss it upon the ground that it was prematurely brought to this court. In resistance to that motion the learned counsel for the plaintiffs in error insisted that it was properly brought under the above-quoted section. That see tion provides that: "In all cases where an application for an injunction or receiver is granted or refused; in all applications for discharge in bail-trover and contempt cases: * 1. Where, upon the equitable petition of cred-granting or refusing application for alimony. itors, an injunction is granted, and a receiver is appointed to take charge of the assets of a firm.-such assets consisting of a large stock of goods and other property,-and the order appointing the receiver directs him to dispose of the goods in a particular manner, and no exception is filed to the granting of the injunction or the appointment of the receiver, but subsequently the judge modifies the original order, as to the disposition of certain of the goods which were claimed by one of the creditors, that creditor cannot file a bill of exceptions to the latter order, and obtain a "fast" writ of error thereon, and bring the case to this court for adjudication, under section 5540 of the Civil Code. (a) The plaintiffs in error having mistaken their remedy, and there appearing to be merit in their contention, leave is granted to enter the bill of exceptions, or the official copy of it retained below, as exceptions pendente lite. (Syllabus by the Court.) Error from superior court, Fulton county; J. H. Lumpkin, Judge. Action by the Capital City Bank against Moody & Brewster. Bacon & Co. intervene. From the judgment they except and bring error. Dismissed. Hammond, Skeen & Longley, for plaintiffs in error. Glenn, Slaton & Phillips, W. R. Brown, Rosser & Carter, King & Anderson, Goodwin, Westmoreland & Hollman, Ellis & Gray, Arnold & Arnold, and Clay & Blair, for defendants in error. SIMMONS, C. J. Upon the petition of various creditors, the assets of the firm of Moody & Brewster were placed in the hands of a receiver, and an injunction was granted against them and other parties, to restrain them from interfering with or disposing of the assets. Bacon & Co. intervened and made themselves parties before the granting of the injunction or the appointment of the receiver. They claimed in their intervention that they had sold a large quantity of cloth to Moody & Brewster, that it had been obtained from them by fraud, and that the title had therefore not passed from them to the purchasers. They asked permission of the court to identify the goods so claimed, and to retake them. The judge, in his instructions to the receiver, passed an order in relation to the goods of Bacon & Co., with which they were satisfied. Subsequently, mandamus or other extraordinary remedy; the bill of exceptions shall be tendered and signed within twenty days from the rendition of the decision," etc. Counsel contended that, although he did not except to the granting of the injunction or the appointment of the receiver, he had a right to bring the case here, under the words "or other extraordinary remedy"; and he relied upon the case of Hayden v. Phinizy, 67 Ga. 758. to sustain this contention. In that case it ap pears that an injunction had been granted restraining Hayden from interfering with the plaintiff's use and enjoyment of a certain house in Hall county. After the grant of the injunction, Hayden violated it. An attachment for contempt was issued against him. and upon the trial of the contempt proceedings the judge ordered that Hayden be imprisoned for 10 days. He excepted to that judgment, and brought the case here upon a "fast" writ of error. Motion was made to strike the cause from the docket of the term to which it was brought, and to transfer it to the docket of the next term. This court denied the motion, holding that "the power to attach for contempt for violating an injunction is absolutely essential to the effectiveness of the injunction itself. Hence a proceeding for that purpose is so connected with the injunction as that a decision upon It may be brought to the supreme court by a 'fast' writ of error." In our opinion, the case of Hayden v. Phinizy is not controlling in the present case. The disobedience of Hayden practically set the injunction aside. and was a contempt of the court which had granted the injunction. If the court could not enforce its injunction, the order would be rendered worthless. It was enforced by punishing the violator, and the court simply held that this proceeding for the violation of the injunction was so connected with the injunction itself that it could be brought here upon a "fast" writ of error. Jackson, C. J.. said, in substance, that if an injunction was properly granted, and a person then violated it, and was attached for contempt, and could bring his exceptions to this court only under the general law, proceedings in injunction cases would be rendered entirely nugatory. In the case now under consideration, the record does not disclose that any exception was taken by any one to the granting of the injunction or the appointment of the receiver. The order modifying the instructions to the receiver did not affect the injunction one way or the other. It was merely an act of the judge, changing the details of the disposition of the goods. Had he ordered them sold on the first Tuesday in July, and creditors had shown him some good reason why that was not a proper day for the sale, and he had changed it to the first Tuesday in August, this would have afforded as much right to a "fast" writ of error as do the facts of the present case. The words "or other extraordinary remedy" certainly do not give the right to parties, after the injunction has been granted and the receiver appointed, to except to orders of the judge changing the administration of the assets in the hands of the receiver. If the contention of plaintiffs in error is sound, a case of the kind now under consideration could never be ended by the trial court. Every order as to the details of administration granted by the judge could be excepted to and brought here. The proper practice, in our opinion, is for a creditor to file exceptions pendente lite to such orders as are unsatisfactory to him, and when the case is terminated in the trial court, and is brought here, to assign error in the regular bill of exceptions upon his exceptions pendente lite, or have them made a part of the record, and assign error on them in this court. This may in some instances amount to a great hardship, as is claimed to be true in the present case; but this court has no jurisdiction to entertain such a bill of exceptions as the present, however great may be the injustice to the party complaining. (a) We have looked into the complaint made by the plaintiffs in error, and think there may be merit in it. For this reason we grant them leave to enter the bill of exceptions, or the official copy of it retained below, for record pendente lite. Writ of error dismissed. All the justices concurring, except LUMPKIN, P. J., absent on account of sick ness. (105 Ga. 617) FINKELSTEIN v. STATE. (Supreme Court of Georgia. Oct. 13, 1898.) 1. Where a purchaser of goods delivers to the seller a bill of money exceeding in amount the price of the goods, intending that the seller shall return the proper change, and the latter accepts the bill for this purpose, but. instead of returning the correct change, appropriates to his own use, fraudulently and with intent to steal the same, the bill so received, he is guilty of simple larceny. 2. Where a verdict is not without evidence to support it, this court will not interfere with the discretion of the trial judge in overruling the general grounds in a motion for a new trial. Little and Fish, JJ., dissenting. (Syllabus by the Court.) Error from criminal court of Atlanta; J. D. Berry, Judge. Mrs. I. Finkelstein was convicted of larceny, and brings error. Affirmed. Goodwin, Westmoreland & Halleman, for plaintiff in error. Jas. F. O'Neill, for the State. LEWIS, J. The defendant, by accusation in the criminal court of Atlanta, was charged with the offense of simple larceny, in that she "did wrongfully and fraudulently take, steal, and carry away, with intent then and there to steal the same, eight dollars and ten cents, in money, the property of J. C. and ten cents." The testimony for the state, Northcutt, and of the value of eight dollars in brief, is that Northcutt went into the store of Mrs. Finkelstein, and bought of her goods to the amount of $1.90. He handed her a $10 bill, from which to take payment. He claimed that she carried this bill to another part of the store, and placed the same in the money drawer, and, returning, handed him $3.10 in change. He reminded her that the bill he handed her was $10, which was denied, she contending that it was only a $5 bill; whereupon she took from her stocking a $5 bill, and exhibited it to him as the money she had received from him. In the meantime her husband came, who, learning of the accusation against his wife, seized the prosecutor, and desired to call in a policeman and to have the store searched, to see if the $10 bill was therein. An altercation and fight ensued between the husband and Northcutt. No search was made. Defendant, in her statement, denied having ever received a $10 bill; claiming that It was a $5 bill paid her, and she placed the same in her stocking when it was handed her. There was some conflict in the evidence as to whether or not Northcutt was under the influence of whisky at the time. There was proof of defendant's good character by several witnesses. The defendant was found guilty, whereupon she filed a motion for a new trial, which was overruled, and she excepted. 1. The only question of law made by this record is whether or not the testimony on which the conviction rests makes a case of simple larceny. Section 155 of the Penal Code declares that "simple theft, or larceny. is the wrongful and fraudulent taking and carrying away, by any person, of the personal goods of another, with intent to steal the same." It is insisted by counsel for plaintiff in error that there was an entire absence of any fraud or deception on the part of the defendant in giving or receiving money, and that in the absence of such fraud there was no larceny,-certainly no simple larceny. This position is based upon the idea that to constitute theft the taking must be fraudulent, and that, if the property lawfully comes into the possession of the accused, under no circumstances can its subse quent appropriation by her be considered larceny. The bare fact of putting one's property in the possession of another does not necessarily deprive the owner of its legal possession. Although personal property may be placed by the owner in the hands of another, yet, if its custody is thus given upon condition that there should be at once returned for it its equivalent in value, neither the title to the property nor the right to its possession becomes complete until this condition has been complied with, and the constructive possession as well as the title remains in the owner. Where one, therefore, retains the goods thus received by him, and carries them away, with intent to steal the same, or any part thereof, before he has acquired any right of title or possession, he is guilty of theft; and the definition of simple larceny above quoted from the Code is broad and comprehensive enough to include such a theft in the general class of simple larceny. It is not denied that such a taking and appropriation of the personal goods of another constitute some crime, but it was insisted in the argument for plaintiff in error that the crime was that of a cheat and swindler. There is a broad distinction between this case and those in which an indictment for cheat would lie, based upon the fraudulent conduct of one in depriving another of his property. In the latter class of cases it is the intention of the owner to pass the title. There is no larceny. There is a want of an intent to steal, which, of course, is an essential ingredient of larceny. The title passes, and, while one may be guilty of such fraud in acquiring the title as would subject him to punishment as a cheat, yet he cannot be said to intend to steal that which the owner intended him to have. In the case we are now considering there was evidently no intent that the title to the bill handed by its owner to the defendant should ever pass, except upon condition that the owner should receive back the proper change as agreed upon in the contract of sale touching the articles purchased. Therefore, when the defendant carried it away, with intent to appropriate it to her own use without complying with this condition, she was guilty of stealing what did not belong to her, and to which she even had not acquired a perfect right of possession. Neither, under the facts of this case, could the charge of larceny after trust be maintained, under any definition of that offense in the Penal Code. If the offense committed falls within any of the provisions of our law on this subject, it must be included in section 191 or 194 of the Penal Code. The former section relates to factors, commission merchants, etc., "or any other bailee, with whom any money, or any other thing of value, may be entrusted or deposited." In no legal sense was this defendant the bailee of the owner of this money. There was really nothing intrusted to or deposited with her. It was a cash transaction. While, with the consent of the owner, she received his money, yet it was contemplated that the two acts one of receiving, and the other of paying back something in lieu-should be simultaneous. There was no delegated trust either to keep the money for any period of time, or to dispose of or use it for the benefit of either of the parties. In the case of Sanders v. State, 86 Ga. 717, 12 S. E. 1058, it was held that the words "or any other bailee," in the section cited, should be construed to mean other bailees of like character as those named just above; that is, bailees ejusdem generis. In Cody v. State, 100 Ga. 105, 28 S. E. 106, that decision is criticised; and Chief Justice Simmons, in the opinion delivered by him in the case of Weaver v. Carter, 101 Ga. 213, 28 S. E. 869, said that while Cody v. State virtually overruled the decision in 86 Ga. and 12 S. E., yet it was without in any way or manner reviewing the same as prescribed by the statute. But, so far as the question involved in this case is concerned, it matters not which of the two decisions cited presents the correct rule upon the subject, -neither is in conflict with our ruling in this case. For in Cody v. State there was evidently a delegated trust. There was not simply an exchange of property, involving acts by each party which were intended to be simultaneous, but the property was intrusted to the defendant for the purpose of holding and keeping it for the benefit of the bailor. In 2 Bish. New Cr. Law (2d div.) § 812, it is said, "If the owner of a coin passes it to a person, who is to take it out and get it changed, this one becomes neither a bailee nor otherwise in possession." The proposition that simple larceny of goods may be committed by a person, even if he acquires the lawful possession thereof, where there is no intention of the owner to part with the title, is sustained by abundant authority, both in the text-books and in the decisions of numerous courts of last resort in this country. quote the following from 12 Am. & Eng. Enc. Law, p. 768: "The mere delivery of prop erty to another for a special purpose vests in the person receiving it only the temporary charge or custody. The possession of the property remains in the owner, and a conversion of it is larceny, as in case of the delivery of money by the owner to another for the purpose of having it changed into other money of a different denomination." In 1 Bish. New Cr. Law, § 583, it is declared: "If one fraudulently, to steal another's goods, prevails on the latter to deliver them to him in a way to pass the property therein, he commits by this taking neither larceny nor any other crime, unless the transaction amounts to an indictable cheat. But if the permission extends to the possession only, and he takes and converts the whole to himself. he becomes guilty of larceny, because, while his intent is thus to appropriate the property. the consent which he fraudulently obtained covers no more than the possession." Again. We In volume 2 of the same work (section 815, 2d div.), it is declared: "If, on a sale of goods, the seller contemplates no credit, but the purchaser secretly purposes appropriating them to himself without paying, a delivery will not prevent the fraud being larceny; otherwise, if there is a credit." See, also, sections 816 and 817, giving instances where theft in the exchange of money similar to the present case is held to be simple larceny. In Rap. Larceny, § 3, is the following text: "So, one who, on receiving a bill to be changed, puts it in his pocket, with the fraudulent intent of converting it to his own use, and who refuses to deliver the change on demand, is guilty of larceny." Hildebrand v. People, 56 N. Y. 394, is a case so exactly in point that we quote its entire headnote: "Upon the trial of an indictment for larceny, it appeared that the prosecutor handed to the prisoner, a bartender, a fifty-dollar bill, to take out ten cents in payment for a glass of soda. The prisoner put down a few coppers on the counter, and, when asked for the change, put the prosecutor out of doors and kept the money. Held, that the prosecutor did not part either with the possession of or property in the bill, but, until the change was given back, the delivery was incomplete, and the bill remained, in legal contemplation, under his control and in his possession, and that larceny could be predicated upon the facts stated." On the same line, and sustaining the same principles, are the following cases: Justices of Court of Special Sessions v. People, 90 N. Y. 12; Farrell v. People, 16 Ill. 506; Walters v. State, 17 Tex. App. 226; Com. v. Barry, 124 Mass. 325; Murphy v. People, 104 Пl. 528. See, also, 46 Cent. Law J. p. 452, where the author cites a number of authorities to the same effect in a note attached to the case of People v. Martin (recently decided by the supreme court of Michigan) 74 N. W. 653. Authori ties might be multiplied almost indefinitely, but the above, with the numerous citations which they embrace, are quite sufficient to be given in this opinion. The case of Jones v. State, 97 Ga. 430, 25 S. E. 319, is relied on by counsel for plaintiff in error to sustain the position that this was a case of being a cheat and swindler, and not of larceny. The marked distinction, however, between that case and the one at bar, is that there was an intention on the part of the little girl to pass to the seller title to the coin which she delivered to him in payment for the goods. On page 431, 97 Ga., and page 319, 25 S. E., Justice Lumpkin, in the opinion, says: "The artful practice and the deceitful means which he employed consisted in adopting the necessary precautions to keep her in this belief [that is, that the coin she was passing was a silver dollar], and thus enable him to obtain the valuable coin and satisfy her with the inadequate sum given back in change." She intended to pass the title to the $20 gold piece if 75 cents were returned to her. her mind the delivery of 75 cents to her was In all that she required as a prerequisite to parting completely with both possession and title to the gold coin. She did not expect to get $19.75, or know that she was entitled to this amount, and accordingly there was no intention or purpose on her part to reserve title or right of possession of the coin until she actually got the amount of change which was really proper, viz. $19.75. In the present case there is an absence both of the intent to pass title, and also of any fraudulent practice whereby the title was acquired. Crofton v. State, 79 Ga. 584, 4 S. E. 333, is cited to sustain the position that this is a case of larceny after trust, rather than simple larceny. It appeared in that case, however, that the defendant was actually intrusted with 95 cents and a newspaper belonging to the owner of the money for the purpose of carrying the same to another party, and having returned to him $1, thus effecting a sale of his paper for 5 cents. It might with plausibility be argued that there was a delegated trust in the defendant, who was charged with the disposition of the property intrusted to him for the benefit of the owner. It will be seen, however, that the question as to whether or not the facts in that case constituted simple larceny was not raised at all. There was a contention that the offense constituted larceny from the person. The main issue passed upon by the court was whether or not there was any fatal variance between the proof and the allegations in the indictment. On the other hand, the case of Harris v. State, 81 Ga. 758, 7 S. E. 689, makes a much stronger case than the one at bar, either of being a common cheat and swindler, or larceny after trust. There the defendant procured the goods of the owner under the false representations that he was instructed by another party to purchase them. After receiving the goods, he appropriated them to his own use. This court held that the facts sustained the charge of simple larceny. In the case at bar the point was not made or argued that there was a variance between the accusation and the proof, because the former charged the larceny of $8.10, and the evidence shows that the thing stolen, if anything, was a $10 bill. We think the larceny, if any was committed, consisted really in stealing the $10 bill, and not simply that portion of the change to which the owner was entitled, and failed to receive. In the case of Walters v. State, 17 Tex. App. 226, the defendant was charged with a felony, to wit, stealing $20, and the proof showed that $1 in change was given back by the defendant to the prosecutDefendant contended that the conviction should not be maintained for an offense higher than a misdemeanor, theft of an amount under $20 being a misdemeanor ununder the statute. It was held that this contention was not good; that the larceny was really of the $20 bill. We do not mean to say, however, that such a variance would have been fatal, and that, even if the point had been made, we would have felt con or. strained to sustain the same. This point was not only not made, but counsel for plaintiff in error treated the case, in the argument, as if the amount of money was properly stated in the indictment. The only legal proposition presented was whether the facts made simple larceny or some other crime. 2. The question of an intent to steal in this case was one for the jury, and we cannot say, in the light of the record, that the evidence was insufficient to support their finding. The jury accepted the testimony of Northcutt, the main witness for the state, rather than the statement of the defendant, notwithstanding the evidence of her good character. If Northcutt told the truth, there was enough to infer criminal intent, and we do not feel authorized to interfere with the discretion of the trial judge in overruling the motion for a new trial. Judgment affirmed. All the justices concurring, except LITTLE and FISH, JJ., dissenting. (105 Ga. 625) HECOX v. STATE. (Supreme Court of Georgia. Oct. 13, 1898.) CRIMINAL LAW-CONFESSIONS - LARCENY - WHAT CONSTITUTES. 1. A confession of guilt by the accused, freely and voluntarily made, is admissible in evidence against him, although such confession is coupled with the proposition on his part to settle or compromise the case or charge against him; such an offer of settlement not being induced by another. 2. If, after a money-changing transaction between A. and B. (whereby the former delivered to the latter two bills in exchange for smaller bills and a coin) had been completed, B., with the consent of A., either express or implied, took from his possession, ostensibly and as A. supposed, for the purpose of recounting the same, the smaller bills and the coin, but really with the intention of fraudulently retaining and appropriating to his own use three of these bills, and if, in pursuance of such intention, B. carried away the three bills, with intent to steal the same, he was guilty of simple larceny. (Syllabus by the Court.) Error from criminal court of Atlanta; J. D. Berry, Judge. B. L. Hecox was convicted of larceny, and he brings error. Affirmed. Thos. L. Bishop and Geo. P. Roberts, for plaintiff in error. Jas. F. O'Neill, for the State. LEWIS, J. 1. It is insisted in this case that the confession of the accused was improperly admitted, inasmuch as it was done under a hope of benefit,-that his case might thereby be settled without a prosecution. It was not pretended that any such hope was induced by the witness or any other party. if any existed, it was entirely within the breast of the defendant himself. The confession was entirely voluntary, and, under section 1006 of the Penal Code, in order for a hope of benefit or a fear of injury to render it inadmissible, such hope or fear must be induced by another. Bohanan v. State, “If 92 Ga. 28, 18 S. E. 302. Chief Justice Bleckley, in delivering the opinion, on page 32, 92 Ga., and on page 303, 18 S. E., said: a man rears a crop of hope in his own mind from seeds of his own planting, and under its influence makes a confession, this will not exclude the confession as evidence. The hope that excludes is that, and that only, which some other person kindles or excites.” 2. It is further contended in this case that the facts make it one of a cheat and swindle, or some crime other than simple larceny. Under the facts of the present case, there is no question but that the prosecutor had perfect title to the property alleged to have been stolen when the defendant took the same ostensibly for the purpose of ascertaining if he had given the correct amount of change. No objection appears from the record to his again handling the money for this purpose. There was at least a tacit assent for him to recount it. There was not only no intention to pass the title, but there was no trust delegated to the defendant to make any use or disposition of the property whatever for the benefit of the owner. Nor in any view could this be considered a case of larceny from the person. It was not a private taking from the person of the owner, without his knowledge, which is essential, under section 175 of the Penal Code, to sustain a charge of larceny from the person. The principle ruled in the second headnote is controlled by the decision this day rendered in the case of Finkelstein v. State, 31 S. E. 589. See the opinion and citation of authorities in that case. Judgment affirmed. All the justices concurring. BERRY ▼. STATE. (105 Ga. 683) (Supreme Court of Georgia. Oct. 17, 1898.) CRIMINAL LAW DUTIES OF COURT AND JURY ASSAULT-JUSTIFICATION. 1. It is the province of the court to construe the law applicable in the trial of a criminal case, and of the jury to apply the law so construed to the facts in evidence. While the impaneled jurors are made absolutely and exclusively judges of the facts in the case, they are, in this sense only, judges of the law. 2. The opprobrious words or abusive language which may, under the provisions of our Code, be given in evidence as a justification for an assault, or an assault and battery, are such as are used by the person assaulted or beaten, to the accused, at the time of the assault or assault and battery. (Syllabus by the Court.) Error from superior court, Fulton county; J. S. Candler, Judge. John D. Berry was convicted of assault and battery, and brings error. Affirmed. J. T. Pendleton and R. R. Arnold, for plaintiff in error. C. D. Hill, Sol. Gen., for the State. LITTLE, J. John D. Berry was indicted by the grand jury of Fulton county for the offense of assault and battery upon the person of O. H. Stein. The indictment charged |