ness who has been examined and cross-examined and whose examination has been concluded, without being truly said to have introduced testimony. And if a defendant in a criminal case introduces any testimony, he forfeits the right to the opening and conclusion of the argument, which is his where he does not introduce testimony or is content to rest upon his right to make a statement. As already stated, the defendant in a criminal case may under some circumstances recall to the stand a witness who has been introduced and has testified in behalf of the state, without forfeiting his right to conclude the argument; but to avoid a forfeiture of the right to conclude he must distinctly inform the presiding judge as to the reason why he did not conclude his examination of the witness while the witness was on the stand. The court must have an opportunity of determining the validity of these reasons and of ruling thereon. A request of counsel that a witness who has retired from the witness stand remain in the courtroom for the purpose of further cross-examination, which is merely addressed to the witness instead of to the court, will not avoid a forfeiture of the defendant's right to conclude the argument, correctly ruled that proof of actual manual | of his own motion recall to the stand a wit delivery of a shipment to a consignee by one who asserted that he saw the delivery made, or who himself made the delivery, was primary proof of delivery. The testimony of a witness who as agent of a carrier actually knows that certain articles were delivered is not such secondary evidence of the delivery as to render such testimony inferior to written records of the shipments to the receipts given for the shipments by the consignee, and to require these written memorandums of the shipments to be introduced as proof that the consignee actually received the articles embraced in the shipments. Actual manual delivery of goods is a substantive fact which may be established by the testimony of any person who knows that the delivery was made. The receipt of a consignee in which he acknowledges that a certain shipment was delivered to him by a carrier, like other receipts, is only prima facie true, and is subject to contradiction by parol, and for this reason, among other things, a written receipt acknowledging delivery of a shipment by a carrier is not higher or better evidence of the fact of the delivery of the shipment to the consignee than oral proof that there was an actual manual delivery, coming from one who saw or made it. See Pitts v. State, 15 Ga. App. 436, 83 S. E. 673. [3] 3. In the third ground of the amend ment to the motion for a new trial the plaintiff in error complains that he was wrongfully deprived of the opening and conclusion of the argument. From an examination of the record it appears that the defendant's counsel and the presiding judge did not concur in their understanding of the reasons and purposes underlying the recalling and further examination of Mr. Robertson, a witness for the state, and the understanding of the judge must control. It appears, from the recital of facts approved by the judge, that at the conclusion of the examination of the witness and after he had left the stand and before he left the courthouse, the defendant's counsel requested the witness, in the presence of the court, not to leave the courtroom, and stated that he desired to cross-examine him further. However, it does not appear that the discretion of the court was invoked for permission to cross-examine the witness further. It is essential in any case to obtain the court's permission to further cross-examine a witness when ample opportunity has already been allowed for that purpose and the examination of the witness has been concluded. If for any reason which the court, in his discretion, may adjudge to be sufficient, such as that by oversight or lack of information some question material to a full cross-examination has been omitted, a witness introduced by the opposite party may be recalled for further examination, and he still remains the witness of the party introducing him, and who vouched for his credibility. But whether the case should the defendant thereafter examine the witness without invoking the judgment of the court as to whether there is such reason for reintroducing the witness as that the witness can properly be treated as if he had remained upon the stand, in the relation he occupied, when originally introduced as a witness for the state. Since it appears in the present case that the permission of the court to reintroduce the witness was not asked, and that the judge did not understand that his there was no exercise of discretion on the discretion was invoked, it is quite clear that part of the court, and, therefore, that when the defendant recalled Mr. Robertson and elicited from him the fact that he based his opinion that the packages delivered by him were whisky only was based upon the fact that the parcels were so labeled, the witness was called merely in the exercise of the defendant's right to introduce any competent witness he might see fit to introduce. It does not appear that the request by the defendant's counsel to Mr. Robertson that he remain in the courtroom, because counsel wished to further cross-examine him, was heard by the presiding judge. It could have been made in his presence without being heard by him. But even if the judge heard the remark, he was not called upon to exercise his discretion as to the propriety of permitting a further cross-examination. The court was not asked to require the witness to remain, nor was any reason stated why counsel for the defendant should be permitted to further cross-examine the witness, other than that he wished to do so. The request of the de nothing more than a request on the part of (18 Ga. App. 232) OF ATHENS. one gentleman to another. The trial judge PORTER v. MAYOR, ETC., therefore correctly ruled that the defendant (No. 7205.) had introduced testimony, and that the state (Court of Appeals of Georgia. June 1, 1916.) was entitled to open and conclude the argu ment in the case. (Syllabus by the Court.) [4] 4. The ruling stated in the fourth head- 1. INTOXICATING LIQUORS 233(2), 236(7)— note requires no elucidation. [5] 5. In the motion for a new trial it is alleged that the court erred in charging the jury as follows: CRIMINAL PROSECUTIONS-EVIDENCE-SUFFI- for the purpose of unlawful barter or sale may (a) The fact that intoxicating liquor is kept be evidenced otherwise than by proof that a sale was actually made. Johnson v. Waycross, Ga. App. 205, 70 S. E. 965; Butler v. Washington, 11 Ga. App. 133, 74 S. E. 858; Brown Atlanta, 11 Ga. App. 755, 76 S. E. 72; Meeks v. Carrollton, 13 Ga. App. 79, 78 S. E. 777. penalizing the keeping of intoxicants for the pur(b) The violation of a municipal ordinance "I have allowed evidence to go to you tend-9 ing to show that the defendant has been ordering and receiving, about the time of the alleged offense, and shortly prior thereto, shipments of liquor. This is to be considered by you only as a circumstance illustrating the issue of the charge in this indictment of selling intoxicating liquors. The weight you will give this circum-pose of unlawful sale may be shown by proof of stance, if it is proven to your satisfaction, is a question for your determination. I charge you that he could not be convicted for that thing, and that you must be satisfied that he bartered and sold, for some valuable consideration, some quantity of intoxicating spirits in Cobb county within two years next preceding the return of this indictment, before he could be convicted. I further caution you that you should not allow any prejudice to arise in your minds against him on account of this evidence, but merely use it as a circumstance going to illustrate the issue raised by the charges in the indictment, and the defendant's denial." In our opinion this instruction should be commended for its fairness to the accused. In any event it is not subject to exception upon the ground set forth in the assignment of error, to wit, that the charge was based upon illegal testimony. For the reasons already stated in the first division of this opinion, the testimony which it is insisted was illegal was competent and the instruction here quoted is in line with our ruling. [6] 6. Beginning with the decision of this court in Fields v. State, 2 Ga. App. 41, 58 S. E. 327 (4), this court has consistently held, following numerous prior rulings of the Supreme Court, that, in charging upon the defendant's statement at the trial, it is the better practice to use the language of the Code. Penal Code 1910, § 1036. The language of the statute conferring upon the defendant the right to make such statement as he may deem proper in his own defense is so plain in its provisions, and the weight to be attached to the statement is left so entirely with the jury, that an attempt to amplify the explanation of the meaning of the plain English words used in the Code section is more apt to obscure than to elucidate the essence of an important right given to one accused of crime, which our lawmakers intended to be gravely taken into consideration by the jury. [7] 7. The evidence amply authorized the conviction of the accused, and there was no error in overruling the motion for a new trial. Judgment affirmed. tion that the liquor sold was kept for the pura single sale. The sale raises such a presumppose of illegal sale as furnishes conclusive evidence of the defendant's guilt under the ordifactorily establishes that the liquor was kept for nance, unless rebutted by evidence which satissome different purpose. Everett v. Vidalia, 14 Ga. App. 664, 82 S. E. 50. sideration of circumstantial evidence apply as (c) The cautionary rules applicable in the conwell to a municipal court exercising the functions of a jury as to juries. Hanjaras v. Atlanta, 6 Ga. App. 575, 65 S. E. 356. But "the receipt of intoxicating liquor in such unusual quantities as to render it improbable that these liquors were intended for legitimate use is a circumstance to be considered by the jury, with other facts and circumstances in the case, in determining whether there is any other reasonable hypothesis than that of the defendant's guilt." Dunn v. State, No. 7161, 18 Ga. App. , 89 S. E. 170 (May 18, 1916). [Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. §§ 295, 309; Dec. Dig. 233(2), 236(7).] 1179 · INTOXICATING SUFFICIENCY OF EVI 2. CRIMINAL LAW [Ed. Note. For other cases, see Criminal Error from Superior Court, Clarke County; C. H. Brand, Judge. R. L. Porter was convicted of violating an ordinance of the City of Athens, and from an order of the superior court denying a writ of Edward S. Elliott, of Savannah, for plaintiff in error. Wilson & Rogers, of Savannah, fendant in error. RUSSELL, C. J. Judgment affirmed. (18 Ga. App. 241) MAYS v. STATE. (No. 6914.) (Court of Appeals of Georgia. June 5, 1916.) (Syllabus by the Court.) 1. SUFFICIENCY OF EVIDENCE. The evidence authorized the verdict. 2. CRIMINAL LAW 722(3) — TRIAL-ARGUMENT OF COUNSEL. The only special ground of the motion for a new trial which is relied on in the brief of counsel for the plaintiff in error relates to an alleged improper reference to the accused by counsel for the state. The expression objected to did not include any statement of fact or relate to extrinsic matters not introduced in evidence, but, in the opinion of the majority of the court, was within the purview of legitimate argument, under the particular facts of this case, and amounted to no more than a metaphorical allusion, deducible from the evidence. RUSSELL, C. J. Judgment affirmed. (18 Ga. App. 217) SMITH V. MORRIS FERTILIZER CO. (No. 6702.) (Court of Appeals of Georgia. June 1, 1916.) (Syllabus by the Court.) 1. BILLS AND NOTES 301-GUARANTY At any time after the debt on which he is see Criminal [Ed. Note.-For other cases, Law, Cent. Dig. § 1674; Dec. Dig. 3. NEW TRIAL REFUSED. The trial court did not err in overruling the the defendant as constituting the notice referred motion for a new trial. Russell, C. J., dissenting. to in this section of the Code complies with the mandatory requirement that the county of the principal's residence shall be stated. Further Error from Superior Court, Taliaferro more, one of the letters was mailed to the plainCounty; B. F. Walker, Judge. tiff before the maturity of the debt, and contained merely the expression of a desire on the Barney Mays was convicted of crime, and part of the indorser that the plaintiff would colbrings error. Affirmed. LA ROCHE v. BUTLER. (No. 7142.) (Court of Appeals of Georgia. June 5, 1916.) (Syllabus by the Court.) NEW TRIAL 70-GROUNDS-INSUFFICIENCY [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 142, 143; Dec. Dig. 70.] Error from City Court of Savannah; Davis Freeman, Judge. Action between I. D. La Roche and S. F. Butler. From the judgment, La Roche brings Affirmed. error. lect the obligation when it became due, and the other letter suggested the advisability of bringing suit and expressed a doubt whether the plaintiff could make the money later if suit should be delayed; but gave notice to the creditor "to proceed to collect the same out of the principal." The court, therefore, did not err in excluding these letters. [Ed. Note.-For other cases, see Bills and 2. BILLS AND NOTES 489(3) · ACTIONS There was no pleading to authorize the parol testimony, repelled by the court, to the effect that the indorser "made an oral demand on the officers of the Morris Fertilizer Company to sue on this particular note while the principal was solvent, and that demand was followed by a promise on the part of the plaintiff to do so, and it failed to do so." [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1590-1595; Dec. Dig. 489(3).] ACTIONS EVI 3. BILLS AND NOTES 301 shown when the alleged oral notice to sue was given by the indorser-whether before or after maturity of the debt, or precisely to whom such notice was given. The court, therefore, did not err in excluding this testimony. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. 88 706-721; Dec. Dig. 301.] 4. DIRECTION OF VERDICT-NO ERRob. a place where a still is being unlawfully operated, participates in any act necessary or usual in the manufacture of whisky, such as stirring the meal, keeping up the fire, or carrying water to be used in mixing the meal, is so connected with the manufacture prohibited by law as to authorize his conviction upon an indictment charging him with manufacturing liquor, when it appears that any act done by him was necesful undertaking. Therefore there is no merit in sarily a contribution to the success of the unlawthe defendant's exception to the following charge to the jury: "If it appears from the evidence, beyond a reasonable doubt, that the defendant was in any way engaged in any part of the manAction by the Morris Fertilizer Company ufacture of intoxicating liquors, and the proof &gainst T. M. Smith. Judgment for plain-establishes that he has been thus engaged, betiff, and defendant brings error. Affirmed. The court did not err in directing the verdict for the plaintiff. Error from City Court of Hall County; A. C. Wheeler, Judge. Wm. M. Johnson, of Gainesville, for plaintiff in error. Lovick G. Fortson, of Atlanta, for defendant in error. WADE, J. Judgment affirmed. (18 Ga. App. 214) WHITE v. STATE. (No. 7118.) (Court of Appeals of Georgia. May 31, 1916.) (Syllabus by the Court.) yond a reasonable doubt, then it would be your duty to convict; otherwise, it would be your duty to acquit. You look to all the facts and circumstances, and determine what the truth is. See whether or not the case is made out as charged. See whether or not it is established. beyond a reasonable doubt, that this defendant took any part in the manufacture of intoxicating liquors, as set out in the accusation. If he did, you should find him guilty." This is not subject to the exception that "it states the law of accomplices too broadly and does not define such participation in the common criminal design by the accused as in law would warrant his con viction." [Ed. Note.-For other cases, see Intoxicating 1. CRIMINAL LAW 563-INTOXICATING LIQ- Liquors, Cent. Dig. §§ 147, 331, 333, 341, 347; UORS 236(1)-CORPUS DELICTI-PROOF-Dec. Dig. 137, 239(1).] 3. INSTRUCTION ON ALIBI. "HYPOTHESIS." The circumstances in proof sufficiently established the corpus delicti. The utensils, with the accompanying paraphernalia, as well as the evidence of mash and beer and smoke, added to the unmistakable odor of whisky which had been spilled, taken in connection with the extreme seclusion of the spot, which by its signs presented many indicia of having been selected as a sylvan sanctuary of Bacchus, absolutely precludes the inference that so many circumstances of obvious import could have fortuitously occurred. Nor is it reasonable to suppose that the presence of "the still" was due to chance or accident, while it was in transportation, since it was found away from any road, and there is no evidence that such utensils are as yet transported by aeroplanes. When proof of the corpus delicti is dependent wholly upon circumstantial evidence, such evidence, of course, will be insufficient, if it suggests a theory which is as consistent with the presumption that no crime was in fact committed as with the inference that some act was done which was a violation of the law; but a hypothesis of guilt which is planted upon occular demonstration of certain signs, all of which point in the same direction, cannot be supplanted by a hypothesis of innocence which would not be suggested to ordinary intelligence, and which owes its existence entirely to a flight of fancy. The term "hypothesis," whether it be of guilt or of innocence, refers to such reasonable inferences as are ordinarily drawn by ordinary men in the light of their experience in everyday life. Applying this definition to the rule as to circumstantial evidence, the corpus delicti was in this case fully established. In this connection see Justice v. State, 7 Ga. App. 43, 65 S. E. 1070. [Ed. Note.-For other cases, see Criminal Law. Cent. Dig. § 1269; Dec. Dig. 563; Intoxicating Liquors, Cent. Dig. § 300; Dec. Dig. 236(1). For other definitions, see Words and Phrases, Second Series, Reasonable Hypothesis.] 2. INTOXICATING LIQUORS 137, 239(1)—UNLAWFUL MANUFACTURE OF LIQUOR-PROOFINSTRUCTIONS-ACCOMPLICES. The charge upon the subject of alibi is not subject to the exceptions urged against it. 4. DENIAL OF NEW TRIAL APPROVED. There was no error in overruling the motion for a new trial. Error from City Court of Polk County; J. K. Davis, Judge. Seab White was convicted of manufactur ing intoxicating liquor, and brings error. Af firmed. W. K. Fielder, of Cedartown, and C. D. RUSSELL, C. J. Judgment affirmed. KING et al. v. BRICE. (Syllabus by the Court.) RULINGS ON DEMURRER SUSTAINED. in answer to the questions certified in this case, Action by J. A. Brice against R. D. King and others. From the judgment, defendants bring error, and plaintiff files cross-bill of In the light of the rule that in misdemeanors exceptions. Case to Supreme Court. Quesall who aid or abet are principals, one who, at tions answered. Affirmed. R. B. Blackburn, of Atlanta, for plaintiffs in error. Marion Smith, of Atlanta, for defendant in error. WADE, J. Judgment affirmed on main bill of exceptions, and also on cross-bill. (18 Ga. App. 195) WIGHT v. PELHAM & H. R. CO. (No. 7044.) (Court of Appeals of Georgia. May 30, 1916.) (Syllabus by the Court.) 1. CARRIERS 21(2) 192 - REGULATION STATUTORY PROVISIONS. Shippers and common carriers cannot, by contract between themselves, fix the rates to be charged on shipments of freight. The power and authority of regulating freight tariffs is, by the Constitution of this state, conferred upon the General Assembly, and by it vested in the Railroad Commission (Civ. Code 1910, § 6463), which has exclusive power to make rates and to determine what are just and reasonable rates (Civ. Code 1910, §§ 2630, 2631, 2632, 2668); and discrimination in freight rates in favor of any one is made a misdemeanor (Pen. Code 1910, §§ 527, 730, 731, 733). (18 Ga. App. 203) CARROLL v. STATE. (No. 7315.) (Court of Appeals of Georgia. May 30, 1916.) (Syllabus by the Court.) INFANTS 66 CAPACITY TO COMMIT CRIME -PRESUMPTIONS AND BURDEN OF PROOF. As to one charged with crime, there is a presumption that if the accused be between the ages of 10 and 14, he is non capax doli, and the state carries the burden of rebutting by proof this presumption. In the present case the only evidence touching the age of the defendant was that he was only 13 years of age at the time of the commission of the alleged offense, and there were no circumstances in proof, nor is there anything in the record, from which a contrary inference can be deduced. The prosecution having wholly failed to rebut the presumption arising from proof that the defendant was under 14 years of age, the verdict finding him guilty was contrary to evidence and contrary to law, and the trial judge erred in overruling the motion for a new trial. [Ed. Note.-For other cases, see Infants, Cent. Jerry Carroll was convicted of crime, and [Ed. Note. For other cases, see Carriers, Dec. brings error. Reversed. Dig. 21(2), 192.] 2. ACTION 47-JOINDER OF CAUSES-NATURE OF ACTION. In the first 15 paragraphs of his petition the plaintiff seeks to recover for the breach of an alleged contract with the defendant company, fixing a freight rate. In paragraph 16 of his petition he seeks to recover for damage to his land, occasioned by the construction of the railroad through his premises. A cause of action arising ex contractu and a cause of action arising ex delicto cannot be joined in the same suit. Wolff v. Southern Ry. Co., 130 Ga. 251, 60 S. E. 569. [Ed. Note.-For other cases, see Action, Cent. Dig. §§ 469, 470, 472-489; Dec. Dig. 47.] 3. PLEADING 205(2)—GENERAL DEMURRER -ILLEGAL CONTRACT. Eubanks & Mebane, of Rome, for plaintiff in error. W. H. Ennis, Sol. Gen., of Rome, for the State. RUSSELL, C. J. Judgment reversed. JONES v. COOPER. (18 Ga. App. 185) (No. 6748.) (Court of Appeals of Georgia. May 30, 1916.) (Syllabus by the Court.) SUFFICIENCY OF EVIDENCE. The evidence authorized the verdict, and there was no error in overruling the petition for certiorari. Error from Superior Court, Grady County; E. E. Cox, Judge. The plaintiff's petition, construed most strongly against the pleader, plainly shows that his alleged cause of action is based upon the Action between R. W. Jones and Basco breach of an illegal, and therefore unenforceable, contract, and the court did not err in sustaining Cooper. From a judgment refusing a writ the general demurrer and in dismissing the pe- of certiorari, Jones brings error. Affirmed. tition. See Central of Georgia Ry. Co. v. Willingham, 8 Ga. App. 817, 819. 70 S. E. 199; J. J. Hill, of Pelham, and B. C. Gardner, Union Dry Goods Co. v. Georgia Public Service of Camilla, for plaintiff in error. Ira CarCorp., 142 Ga. 841, 83 S. E. 946; City of Daw-lisle, of Cairo, for defendant in error. son v. Dawson Tel. Co., 137 Ga. 62, 72 S. E. 508. [Ed. Note.-For other cases, see Pleading, Cent. Dig. § 492; Dec. Dig.205(2).] Error from City Court of Cairo; W. J. Willie, Judge. Action by Thomas Wight, executor, against the Pelham & Havana Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed. M. L. Ledford, of Cairo, and Roscoe Luke, of Thomasville, for plaintiff in error. Hardeman, Jones, Park & Johnston, of Macon, and Bell & Weathers, of Cairo (Harry S. Strozier, of Macon, of counsel), for defendant in error. BROYLES, J. Judgment affirmed. RUSSELL, C. J. Judgment affirmed. (18 Ga. App. 208) COOK V. STATE. (No. 6995.) (Court of Appeals of Georgia. May 31, 1916.) (Syllabus by the Court.) APPEAL AND ERROR 425-WRIT OF ERRORTIME OF SERVICE-DISMISSAL. The "practice act" of 1911 (Acts 1911, p. 150, § 4), provides that: "Where counsel acknowledges service upon a bill of exceptions, such acknowledgment shall be held to be a complete waiver of all defects in the service which the counsel signing it is legally competent to waive, whether such signing is done before or after the signing of the writ of error, unless counsel in the entry of acknowledgment distinct |