3. LARCENY (§ 40*)—ACCUSATION-VARIANCE. | and the witness went to the home of the Where the accusation describes the prop: accused in search of it. The accused opened erty as being 50 cigars of the value of $2, and the proof shows that the stolen property conthe sack in the presence of the witness, took sisted of a box of cigars of the value of $1.90, out the 9-pound piece of meat, and said that the variance is immaterial, whether the box this was all that he bought. The witness contained 50 cigars or a less number. looked in the sack and found another piece [Ed. Note.-For other cases, see Larceny, Cent. Dig. 88 102-126, 160; Dec. Dig. § 40. of meat, which he identified as the other portion of the side of meat from which the 4. CRIMINAL LAW (§ 1159*). APPEAL AND ERROR-VERDICT-EVIDENCE. 9 pounds were cut. The accused was requestThe evidence is exceedingly weak and un-ed to go back to the store, and, on the way, satisfactory as to the existence of any crim- he remarked that this was the only thing he inal intent; but this court cannot say that had ever taken in his life, and if the witness there were no circumstances from which the jury could have inferred the existence of such would not put him in jail he was willing to intent, and, as no error of law was committed, go to work for him. On cross-examination the verdict must stand. the witness testified that he did not hear the accused tell him that he got the other piece of meat, and to charge it to him. The witness would not say, however, that the accused did not make this statement, because he was some distance away from him. The acHenry Warren, Jr., was convicted of lar-cused had worked in the store for a numceny from a house, and he brings error. Af [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 3074-3083; Dec. Dig. 8 1159.*] Error from Superior Court, Baldwin County; Jas. B. Park, Judge. Where, in a criminal case, the accused, in his statement at the trial, presents a theory which, if true, entitles him either to an acquittal or to conviction of a lower grade of offense than that charged in the indictment, it is error for the court to refuse to give in charge to the jury a written request upon the law applicable to such theory. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. § 770.*] Error from City Court of Vienna; W. H. Lassiter, Judge. ber of years, had a good credit there, had cut meat, delivered goods, collected money, and performed similar duties. When the witness first saw the meat at the house of the accused the accused contended that he had weighed the meat and told the witness to charge it to him. When the accused first came to the store to make the purchase, he told the witness that he wanted all of the side of meat, but did not have enough money, and he had better let part of it remain. The witness had known the accused for several years, and his previous character had been good. Another witness also testified to the good character of the accused. The accused, in his statement, said that after he cut off the 9-pound piece of meat, and the clerk who was serving him had taken his money and had gone across the store to a desk to make out the cash ticket, the accused told the clerk that he would take the other piece of meat also, and gave its weight and requested that it be charged to him. He thought the witness heard this statement. He had often gotten meat at the store before and had it charged to him Charlie Dozier was convicted of larceny, self. He excepts to the overruling of his moand he brings error. Reversed. Jule Felton, of Montezuma, for plaintiff in error. Watts Powell, Sol., of Vienna, for the State. POTTLE, J. The accused was convicted of the larceny of a piece of meat from a storehouse of the Byrom Corporation. The main witness for the state testified, on direct examination, that the accused came to the store to purchase some meat, took a side of meat from the box, cut off a piece weighing about 9 pounds, paid for it, and put the remainder, weighing about 12 or 14 pounds, back into the meat box. Afterward the accused made several other purchases, put them all in a sack, and took them home. Shortly after he left, the meat was missed, tion for a new trial. 1. The court was requested in writing to charge the jury as follows: "If the defendant took the meat and requested Mr. Slade to charge it to him, and he believed that he was entitled to take it under these circumstances, you could not convict this defendant." The judge declined to give this instruction, but did charge generally the law as to the prisoner's statement at the trial. The refusal to charge as requested is complained of in the motion for a new trial, The accused was entitled to have the court give the instruction requested. If no request is made to do so, it is not generally reversible error to fail to charge on a theory arising solely from the prisoner's statement; but when a pertinent and legal request is pre sented for an instruction upon such a theory, to consider the two grounds contained in it is as much reversible error to refuse to the same, which said disallowance and redo so as it would be to refuse to give an in- fusal Joe Gordon now assigns as error." struction based upon a theory arising from The two grounds of the amendment, which the sworn testimony in the case. If this the trial judge refused to approve, are sent were not true, the accused could be deprived up in the record, and it appears that the of the benefit of the statement which the reason given by the judge for his refusal law authorizes him to make in his own de- to allow the amendment or to approve the fense, and which is often the only means by grounds thereof was that the grounds of the which the accused can rebut a prima facie motion as stated were conclusions of fact case against him made by the state's evi- and argumentative. If the question were dence. According to the evidence for the properly presented, we would have no hesistate, if the clerk had been requested by tation in holding that the judge properly the accused to extend credit for the meat, disallowed the amendment to the motion, he would have done so; and the clerk, who for the reason stated by him; but nothing testified in behalf of the state, does not une- is better settled as to motions for new trial quivocally deny the statement that the ac- than that a court of review can only pass upon cused made the request that the meat be such assignments of error as are contained in charged to him. The guilt of the accused is grounds of the motion which have been exby no means free from doubt, and he was pressly approved. It is elementary that entitled to the instruction which he requested assignments of error contained in the mo the court to give. tion for new trial, which are disapproved by the trial judge, present nothing for the consideration of a court of review. 2. There are several other grounds in the motion for a new trial, but none of them disclose any material error. Judgment reversed. peals. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. § 1064.*] 2. CRIMINAL LAW (§ 913*) - NEW TRIALSUFFICIENCY OF EVIDENCE. The incriminatory circumstances introduced in evidence by the state were sufficient to exclude every reasonable hypothesis, except that of the defendant's guilt, and authorized the jury to convict him of the offense of gaming; and, as there is no complaint of any error of law upon the trial, the trial judge did not err in overruling the motion for new trial. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2137-2145; Dec. Dig. § 913.*] Error from City Court of Statesboro; H. B. Strange, Judge. Joe Gordon was convicted of gaming, and brings error. Affirmed. F. B. Hunter, of Statesboro, and J. D. Kirkland, of Metter, for plaintiff in error. F. T. Lanier, Sol., of Statesboro, for the State. RUSSELL, J. [1] 1. It is recited in the bill of exceptions that his honor, Judge Strange, "refused to allow the amended motion, or [2] 2. The only point argued in the brief of counsel for the plaintiff in error is that the evidence offered to show the guilt of the accused is wholly insufficient, and therefore that a verdict finding him guilty is contrary to law. In our opinion the verdict was ful ly authorized by the proof submitted in behalf of the state. It is true that the defendant introduced a number of witnesses, who testified that he was merely a spectator, and did not in any way participate in the unlawful game of cards which they admitted was in progress. But, aside from the general rules which may or may not be controlling with juries in establishing the credibility of testimony, there was one undisputed circumstance, introduced on the part of the prosecution, which is wholly incompatible with the supposition of the defendant's innocence. The state proved that, when the game of cards was interrupted by the arrival of the officers, the defendant immediately claimed the money which was being used in the game as his property, and on the trial he did not offer any explanation which would tend to show that his money was being used either for an innocent purpose or without his consent. He did not deny having made claim for the money. The other circumstances introduced in bethe accused to those who were shown to be half of the state, such as the proximity of players in the game, and his interest in the proceedings, might have been insufficient to (12 Ga. App. 725) KILLEBREW v. STATE. (No. 4,821.) (Court of Appeals of Georgia. May 20, 1913.) (Syllabus by the Court.) HOMICIDE (§ 250*)-VOLUNTARY MANSLAUGH- ed shooting at him, and that he then shot the accused one time. Two wounds were inflicted on the deceased; he was wounded in his side and one finger was shot off. There is evidence that one shot could have made both wounds. From a careful examination of the eviThere was no theory of the evidence or of the prisoner's statement at the trial which au-dence, we are unable to find any theory upthorized his conviction of the offense of volun- on which the accused could properly be tary manslaughter, and the verdict finding him convicted of voluntary manslaughter. The guilty of that offense should have been set aside evidence for the state made out a clear case of murder, and the testimony for the defense an equally clear case of self-defense. There is nothing in the statement of the accused which would authorize a conviction of on a motion for a new trial. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. § 250.*] Error from Superior Court, Monroe County; Robt. T. Daniel, Judge. Sam Killebrew was convicted of voluntary Remanslaughter, and he brings error. versed. R. L. Williams, of Macon, and A. M. Zellner and Persons & Persons, all of Forsyth, for plaintiff in error. E. M. Owen, Sol. Gen., of Zebulon, for the State. The evi Under voluntary manslaughter. It is suggested by the solicitor general that the throwing of the rock by the deceased constituted an assault and authorized a conviction of voluntary manslaughter upon the theory that there was a mutual combat or upon the idea that the assault was enough to excite passion. The manifest reply to this contention is that the evidence demanded a finding that POTTLE, J. The accused was convicted of voluntary manslaughter, and his motion the deceased shot twice at the accused before the accused shot at him. If the acfor a new trial was overruled. Besides the general grounds, the motion contains assign-cused had shot and killed the deceased imments of error upon the ground that the mediately after the throwing of the rock, evidence did not authorize an instruction the position taken by the solicitor general would be correct. But there is no evidence upon the law relating to voluntary manAccording to slaughter, and also a ground containing al- which supports this theory. leged newly discovered evidence. the testimony the deceased was a man of viodence leaves in doubt the real cause of the lent temper, and the accused bore a good This doubtless influenced to difficulty. From a statement made by the reputation. deceased, which was introduced as a dying some extent the jury to return a verdict declaration, it appears that the accused was which, in the light of the evidence, can only angered because of some previous difficulty be regarded as a compromise finding. which had taken place between the deceased repeated rulings of the Supreme Court and and a brother of the accused. According to of this court, the accused has a right to have such a verdict set aside in order that the evidence for the state, the homicide was the question whether he is guilty of murder murder; the deceased was walking along the road unarmed; the accused met him, or not guilty of any offense may be clearly It is unnecessary to and, without any circumstances of justifica- submitted to the jury. tion or mitigation, deliberately fired at him pass upon the ground of the motion containand killed him. According to the evidence ing alleged newly discovered evidence. If for the defendant, the deceased came down such evidence is competent, it can be subthe road with a pistol in his hand, met sev-mitted to the jury on another trial. eral persons and inquired if they had seen the accused, shortly afterward met the accused in the road, threw a rock and hit him on the shoulder with it, and about the same time shot at the accused twice; the accused then shot once; and the deceased then fired three more times. Previous to the killing the deceased told one of the witnesses that 1. STATUTES (§ 47*) he had a pistol and that he was going to kill REGULATION-VALIDITY, the accused with it, if it was the last thing So much of the act of 1910 (Acts 1910, p. that he did. Thereupon he left this wit- 92, § 5) regulating the use of automobiles as ness, with the pistol in his hand and his undertakes to make penal the operation of an automobile on the highways of this state "at coat swung over his arm. This conversation a rate of speed greater than is reasonable and took place on the afternoon of the killing proper, having regard to the traffic and use of and some two or three miles from the place such highway, or so as to endanger the life or where the homicide occurred. In his state-limb of any person or the safety of any property," is too uncertain and indefinite in its ment at the trial the accused said that the terms to be capable of enforcement. deceased met him in the road and threw a [Ed. Note. For other cases, see Statutes, rock and hit him with it, and then commenc- Cent. Dig. § 47; Dec. Dig. § 47.*] Judgment reversed. (12 Ga. App. 430) CARTER v. STATE. (No. 4,132.) (Court of Appeals of Georgia. Feb. 24, 1913.) (Syllabus by the Court.) AUTOMOBILES SPEED 2. HIGHWAYS (§ 186*)-AUTOMOBILES-VIO- RUSSELL, J. The plaintiff in error was ACCUSA- convicted in the city court of Elberton of a The count of the accusation charging the violation of the act approved August 13, accused with having operated an automobile 1910, regulating the operation of automobiles "so as to endanger the life and limb of per- on public highways of this state (Acts Ga. sons and the safety of property", was subject 1910, p. 90). There were three counts in the to special demurrer on the ground that it fail- accusation: The first charging that he opered to show what person or what property was endangered by the running of the automobile. ated an automobile "at a rate of speed great[Ed. Note.-For other cases, see Highways, er than was reasonable and proper"; the Cent. Dig. §§ 476, 477; Dec. Dig. § 186.*] second, that he operated the automobile "so as 3. MUNICIPAL CORPORATIONS (§ 707*) — Au- to endanger the life and. limb of persons and TOMOBILES-SPEED REGULATION-OPERATION the safety of property"; and the third, that OF STATUTE. he operated the automobile on a public highway, at a place known as "Herndon's Corner," "without having said machine under control," and operated it “at a speed greater than six miles per hour." Section 12 of the act of 1910 (Acts 1910, p. 94) regulating the use of automobiles, which provides that "nothing contained in this act shall be construed as changing or interfering with any regulation or ordinance which has heretofore or may hereafter be adopted by any municipality of this state, regulating the running and operation of the machines described in this act, provided such regulation or ordinance is not in conflict with the provisions of this act," does not render the act inoperative in a city or town which has adopted an ordinance attempting to make punishable the running of automobiles "at a rate of speed greater than ten miles per hour at corners and crossings, or fifteen miles per hour beyond crossings and corners when outside of the fire limits, or at a greater speed than five miles per hour when inside the fire limits at crossings or corners, or ten miles per hour beyond corners and crossings," within the limits of the municipality; the ordinance being void because in conflict with section 5 of the same act, which makes it a misdemeanor to operate an automobile at a rate of speed greater than six miles per hour on approaching a crossing of intersecting highways. The defendant demurred to the first count upon the ground that it failed to charge any crime, and that the act itself failed to define a crime, because it failed to name any special rate of speed which would be unlawful, unreasonable, or improper. To the second count he demurred upon the ground that the accusation failed to show what person or what property was endangered by the running of the automobile named in the accusation. To the accusation as a whole he demurred upon the ground that the accusation failed to show that the automobile named therein was propelled by steam, gas, gasoline, electricity, or a power other than muscular power. The demurrers were overruled. The defendant then filed a plea in bar, set[Ed. Note.-For other cases, see Municipal ting up that the offense was alleged to have Corporations, Cent. Dig. § 1518; Dec. Dig. occurred within the city of Elberton, and 707.*] that, the city of Elberton having, on August 2, 4. HIGHWAYS (§ 186*)—VIOLATION OF SPEED 1909, passed an ordinance relating to autoREGULATION ACCUSATION "AUTOMO-mobiles within the city limits which fixed BILE. In an accusation specifically charging the illegal operation of an automobile in violation of the act of 1910 (Acts 1910, p. 90) regulating the running of automobiles and conveyances of like character, it is not necessary to allege the particular power by which the automobile in question was propelled. The term "automobile" has a definite popular significance, and is understood to refer to a wheeled vehicle, propelled by gasoline, steam, or electricity, and used for the transportation of persons or merchandise. [Ed. Note. For other cases, see Highways, Cent. Dig. §§ 476, 477; Dec. Dig. § 186.*] 5. QUESTIONS NOT CONSIDered. As some of the rulings upon the demurrer require a reversal of the judgment of the lower court, and the subsequent proceedings in the trial were nugatory, the questions raised by the assignments of error in the motion for new trial will not be considered. Error from City Court of Elberton; Geo. C. Grogan, Judge. the rate of speed on the streets and at crossings and in approaching curves, and provided a penalty for its violation, the jurisdiction of the municipality to punish for the unlawful operation of automobiles is exclusive. This special plea was overruled, and exceptions pendente lite were preserved. [1] 1. We think the court erred in overruling the demurrer to the first count. In so far as the General Assembly attempted to penalize the operation of automobiles at an unreasonable rate of speed, the act of 1910 is void, because there is no measure by which the unreasonableness can be ascertained. The law fails to define what is reasonable or unreasonable, and hence the definition of the offense is too vague and general to constitute a crime. The degree of unreasonableness that may be deemed criminal not being fixed by law, but being left to the varying opinions of different juries, the portion of the act referring to the speed is Cleveland Carter was convicted of violating the statute regulating the speed of auto-not uniform in its operation, and for that mobiles, and be brings error. Reversed. P. P. Proffitt, of Elberton, for plaintiff in error. Boozer Payne, Sol., of Elberton, for the State. reason is unenforceable. Hayes v. State, 11 Ga. App. 371, 75 S. E. 523. [2] 2. We think, also, that the demurrer to the second count in the accusation should have been sustained. While, as a general rule, an accusation which defines an offense in the precise language of the statute is sufficient (Penal Code, 1910, § 954), still this is not a universal rule; and, as has been frequently pointed out in the decisions and text-books (see Wingard v. State, 13 Ga. 400; U. S. v. Simmons, 96 U. S. 360, 24 L. Ed. 819; U. S. v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. 516; Johnson v. State, 90 Ga. 444, 16 S. W. 92; Amorous v. State, 1 Ga. App. 313, 57 S. E. 999; Youmans v. State, 7 Ga. App. 101, 112, 66 S. E. 383; Burkes v. State, 7 Ga. App. 40, 65 S. E. 1091), there are some offenses of such a nature as that a charge in the language of the statute under which the accusation is brought would be wholly insufficient to so inform the accused of the nature of the charge against him as to enable him to prepare his defense. Every person accused of crime has the right to be sufficiently informed as to the time, place, and circumstances of the alleged offense, to identify it and enable him to prepare his defense. Presumptively, at least, one accused of crime is innocent; and if he is indeed innocent, and yet the particular crime with which he is charged (identified only by its Code definition) is merely alleged to have been committed by him at a time within the statute of limitations and in the county in which the accusation is preferred, he is no better informed as to the identity of the alleged criminal transaction, as to which he is called upon to defend, than were the Romans as to the provisions of the statutes which Caligula required them to obey, though he purposely placed his edicts upon a column too high to be seen. a town or city that has an ordinance regulating the speed and operation of automobiles. The accused claims that it is, and that the state has no jurisdiction over the operating of automobiles and other like vehicles within the limits of the city of Elberton, which has an ordinance upon the subject. Section 12 of the act of 1910, supra, reads as follows: "Nothing contained in this act shall be construed as changing or interfering with any regulation or ordinance which has heretofore or may hereafter be adopted by any municipality of this state regulating the running and operation of the machines described in this act, provided such regulation or ordinance is not in conflict with the provisions of this act." The provision of the law regulating the speed and operation of automobiles is found in section 5 of the act, to wit: "No person shall operate a machine on any of the highways of this state as described in this act at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of such highway, or so as to endanger the life or limb of any person or the safety of any property, and upon approaching a bridge, dam, high embankment, sharp curve, descent or crossing of intersecting highways and railroad crossings, the person operating a machine shall have it under control and operate it at a speed not greater than six miles per hour." The ordinance of the city of Elberton provides: "It shall be unlawful for any person in charge of any automobile, auto buggy, motorcycle, or bicycle or other like machine, or chauffeur, rider, or driver, to run such machine at a rate of speed greater than ten fifteen miles per hour beyond corners and crossings when outside of the fire limits, or at a greater rate of speed than five miles per hour when inside the fire limits at corners and crossings, or ten miles per hour beyond corners and crossings, in the city of Elberton." A person who operates an automobile | miles per hour at corners and crossings, or should as much obey the law at all times as those citizens who (like the members of this court) are unable to support such a luxury; but it is easy to conceive of a case in which, if the owner of the automobile was accustomed to use his machine even a small portion of the time, and it was charged that in the county, on some day within two years prior to the filing of the accusation (for the state is not confined to the day stated therein), and at some place of which the accusation gives no hint, he operated an automobile so as to endanger the life and limb of some person or persons whose name, age, color, sex, or place of residence is not even suggested, or so as to endanger property the nature and location of which is possibly undiscoverable, he might be placed absolutely at the mercy of the prosecution, though the testimony against him be false. [3] 3. The question raised by the plea in abatement, based upon section 12 of the law regulating the speed and operation of automobiles and other like vehicles, as contained in the act of 1910, is whether the state law is inoperative upon drivers and automobilists The question to be decided by this court is whether or not, under section 12 as set forth, the general law of section 5 is operative within the city of Elberton, or whether the city of Elberton has exclusive jurisdiction in reference to the regulation of speed and operation of automobiles within the city limits; in other words, whether the city ordinance so conforms to the statute as to be exclusive of any other regulation within the city limits. Section 12 authorizes cities and towns to pass ordinances regulating the speed and operation of automobiles (notwithstanding that there is a general law on the subject), provided only that they do not conflict with any of the provisions of the general law upon the same subject. A city ordinance regulating the operation of automobiles may contain other regulations, |