The Code of the State of Georgia

PART IV.— TITLE L—DIVISION I. 1133

Persons capable of committing crimes.

PAKT IV. PENAL LAWS.

TITLE I PENAL CODE.

Division 1.- -Persons Capable of Committing Crimes. Division 2. -Principals and Accessories.

3.- Division -Crimes against the State and People. ,i. Division 4.- -Crimes against the Person. Division 5. -Crimes against the Habitation.

Division 6.- -Crimes Relative to Property. Division 7.- -Forging, Counterfeiting, and Unlawful Currency. "Division 8.- -Crimes against Public Justice. Division 9.- -Against Public Peace and Tranquility.

Division 10.- -Against Public Morality, Health, Police, etc. Division 11.- -Cheats and Swindles. Division 12.- -Fraudulent or Malicious Mischief.

Division 13.- -Indictments and Proceedings to Execution.

Division 14.- -Contempts, etc., and Attempts to Commit Crimes. Division 15.- -Proceedings in Preliminary Courts.

FIRST DIVISION.

PERSONS capable of committing crimes. t

Section. Section. 4292. Crime, definition. 4299. If insanity is pleaded. 4293. Intention. 4300. Married women. 4294. Infants of fourteen years, capable. 4H01. Drunkeness, when excuse. 4295. Under ten, incapable. 4302. Misfortune or accident. 4296. Lunatics. 4*03. Persons under fear. 4297. Idiots. 4304. Felony, what is. 4298. Aiders and abettors instead.

§4292. (4227.) (4188.) Definition of crime. A crime or misdemeanor shall consist in a violation of a public law, in the commission of which there shall ]>e a union or joint operation of act and intention, or criminal negligence.

An offense cannot be created by vague implications : 33 Ga., 229.

§4293. (4228.) (4189.) Intention. Intention will be manifested by the circumstances connected with the perpetration of the offense, and the sound mind and discretion of the person accused.

1 Bish. Cr. Law, §364 ; 1 Hawley Cr. Rep. ; 30 Am. R., 614; 32/247.

§4294. (4229.) (4190.) Infants of fourteen capable. A person shall be §3064. considered of sound mind, who is neither an idiot, a lunatic, or afflicted :

1134 PART IV.—TITLE L—DIVISION I.

Persons capable of committing crimes.

by insanity, or who hath arrived at the age of fourteen years, or before that age, if such person know the distinction between good and evil. Capacity to distinguish between right and wrong delusion: 3 Ga., 310; 31/424;

42/10. Where neither idiot, lunatic or insane, cannot prove defendant of weak mind : 7 Ga., 3. 1 Bish. Cr. Law, §460; 1 Whart. Cr. Law, 58; 1 Archbold Cr. Pr. and PL, 10; 36 Am. R., 132.

§4295. (4230.) (4191.) Under ten, according to capacity, etc. An infant §3064. under the age of ten years, whose tender age renders it improbable that he or she should be impressed with a proper sense of moral obligation, or be possessed of sufficient capacity deliberately to have committed the offense, shall not be considered or foundguilty of any crime or mis-. demeanor. Infant of fourteen years convicted of voluntary manslaughter, on what evidence 32 Ga., 496. §4296. (4231.) (4192.) Lunatics. A lunatic or person insane, without lucid intervals, shall not bs found guilty of any crime or misdemeanor with which he or she may be charged: Provided, the act so charged as criminal was committed in the condition of such lunacy or insanity; but if a lunatic hath lucid intervals of understanding, he shall answer for what he does in those intervals as if he had no deficiency. Witness may give in evidence belief in a case of insanity if he states the facts on

which it is based: 10 Ga., 513 ; 31/424. Experts allowed to testify as to insanity, but family and neighborhood reputation as to, inadmissible, onomania and moral insan-

ity questioned: 58 Ga., 296 ; 45/190; 31/424. Sanity presumed, and must be overcome

by proof to contrary to avail for acquittal : 45 Ga., 55 ; 56/463. Insanity, to excuse for crime, must dethrone reason and incapacitate from distinguishing between right and wrong: 47 Ga., 553; 58/296. The madness of an act not necessarily insanity: 54 Ga., 375. §4297. (4232.) (4193.) Idiots. An idiot shall not be found guilty or punished for any crime or misdemeanor with which he or she may be charged. §4298. (4233.) (4194.) Counselors and instigators punishable. Any person counseling, advising or encouraging an infant under the age of ten years, a lunatic or an idiot, to commit an offense, shall be prosecuted for such an offense, when committed, as principal; and if found guilty, shall suffer the same punishment as would have been inflicted on said infant, lunatic or idiot, if he or she had possessed discretion and been found guilty. §4299. (4234.) (4195.) Plea of insanity, how tried. Whenever the plea of insanity is filed, it shall be the duty of the Court to cause the issue on that plea to be first tried by a special jury, and if found to be true, the Court shall order the defendant to be delivered to the Superinten- dent of the Asylum, there to remain until discharged by the General Assembly.

Must allege prisoner's insanity at the time of the trial : 38 Ga., 491. Going to trial on this plea and that of the general issue, without insisting on trial on the first, jury

may find guilty or not guilty ; reasonable doubt: 42 Ga., 9-10.

Insanity as a defense : 1 Bish. Cr. Law, §467 ; 1 Whart. Cr. Law, §13 ; 1 Arch. Cr. Pr. and PL, 16; 2 Bish. Cr. Proc, §664; 1 Hawley's Cr. Rep., 283, 297,' 358-9; 3/313; 9 Am. P., 242; 11/731; 18/420; 31/360; 35/20. §4300. (4235.) (4196.) Married women, if coerced, not punishable. A feme covert, or married woman, acting under the threats, command or coercion of her husband, shall not be found guilty of any crime or misdemeanor not punishable by death or perpetual imprisonment; and, with this exception, the husband shall be prosecuted as principal, and, if convicted, shall receive the punishment which otherwise would have

been inflicted on the wife, if she had been found guilty : Provided, it appears, from all the facts and circumstances of the case, that violent threats, command and coercion were used. 1 Bishop Cr. Law, §450; 1 Whart. Cr. Law, §66; 1 Arch. Cr. Pr. and PI., 39. ;

PART IV.—TITLE I.—DIVISION I. 1135

Persons capable of committing crimes.

§4301. (4236.) (4197.) Drunkenness no excuse ; others causing, liability. Drunkenness shall not be an excuse for any crime or misdemeanor, unless such drunkenness was occasioned by the fraud, artifice, or contrivance, of other person or persons, for the purpose of having a crime

perpetrated ; and then the person or persons so causing said drunkenness, for such malignant purpose, shall be considered a principal, and suffer the same punishment as would have been inflicted on the person or persons committing the offense, if he, she, or they, had been possessed of sound reason and discretion. Voluntary drunkenness of whatever degree is no excuse for crime: 17 Ga., 14G

34/354 : 55/31 ; 53/198. While drunkenness is no excuse, yet it may be considered as to whether the prisoner was excited by passion or actuated by malice : 25 Ga., 527 ; 49/211. Also as to whether the intention to kill preceded the provocation or was produced by it: 29 Ga., 594. Inordinate thirst for liquor, produced by habitual drunkenness, no excuse for crime : 31 Ga., 424-5. Witness should give facts on which he bases his opinion of drunkenness: 53 Ga., 365. Where not too drunk to shoot, can entertain malice : 59 Ga., 154.

1 ; : Bish. Cr. Law, $488 8 Am. R., 465 ; 20/292; 36/293. In larceny 27 Am. R., 416; 36/13. §4302. (4237.) (4198.) Misfortune or accident. A person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident, and where it satisfactorily appears there was no evil design, or intention, or culpable neglect.

Where it was murder the killing by accidental discharge of a gun while attacking the person or premises with intent to kill : 19 Ga., 103. Otherwise where the intent to commit the unlawful act was abandoned before the accidental killing: 22 Ga., 479.

This law construed : 30 Ga., 385.

1 Whart. Cr. Law, §751 ; 2/§1002; 1 Arch. Cr. Pr. and PL, 49. §4303. (4238.) (4202.) Persons acting under fear not punishable. A person committing a crime or misdemeanor under threats or meanaces, which sufficiently show that his or her life or member was in danger, or that he or she had reasonable cause to believe, and did actually believe, that his 'or her life or member was in danger shall not be found ; guilty ; and such threats and menaces being proved and established, the person or persons compelling, by said threats and menaces, the commission of the offense, shall be considered principal or principals, and suffer the same punishment as if he, she, or they had perpetrated the offense.

1 Bishop Cr. Law, §441 ; 1 Whart. Cr. Law, §90, a ; 1 Arch. Cr. Pr. and PL, 52. J u §4304. (4239.) (4203.) Meaning of the word "felony." The term fel- jfa^ J^l^JL ony" when used in this Code, shall be construed to mean an offense, /gs/<&J for which the offender, on conviction, shall be liable by law to be pun- // ' ished by death or imprisonment in the penitentiary, and not otherwise. Crimes by the common law, followed by judgment of forfeiture of lands or goods, or both, are felonies in England: •*» Ga., 404. Section referred to and construed: 58 Ga., 203. General Note. —No one can, unless coercion used, plead the authority of a superior as an excuse for crime: 15 Ga., 346. A private acting under orders of a superior officer: 37 Ga., 194-5.

General Note. —Penal responsibility of corporations : 1 Bishop Cr. Law, §501 ; 1

Whart. Cr. Law, §85 ; 1 Arch. Cr. Pr. and PI , 47 , 31 Am. P., 663. 72 :

1136 PART IV.—TITLE L—DIVISION II.

Principals and accessories in crime.

SECOND DIVISION.

PRINCIPALS AND ACCESSORIES IN CRIME.

Section. Section. 4305. Principals, first and. second degree. 4309. Punishment of each. 4306. Accessories. 4310. Of accessory after the fact. 4307. Before the fact. 4311. Accessories, when tried. 430b. After the fact.

§4305. (4240.) (4204.) Principals in first and second degree. A person may be principal in an offense in two degrees. A principal in the first degree is he or she that is the actor or absolute perpetrator of the crime. A principal in the second degree is he or she who is present, aid-

• ing and abetting the act to be done ; which presence need not always be an actual, immediate standing by, within sight or hearing of the act; but there may be also a constructive presence, as when one commits a robbery, or murder, or other crime, and another keeps watch or guard at some convenient distance. Definition of a principal: 15 Ga., 346. Indictment with the verdict and judgment thereon against the principal in the first degree, evidence in the trial of the principal in the second degree, confessions of the former: 7 Ga., 2. One aiding, assisting and

abetting an affray, guilty as principal : 13 Ga., 322. Principal in the second degree

may be tried before the principal in the first degree : 17 Ga., 194. And principal charged with murder in the second degree may be tried for murder after principal in the first

degree convicted of voluntary manslaughter : 28 Ga., 200-217. Immaterial variance

in the indictment between the allegations and the proof, both being principals : 28 Ga., 604. Need not be present when the offense committed to constitute him a principal: 30 Ga., 757. May be convicted and punished as principal in the second degree

when incapable of committing the offense in the first degree : 34 Ga., 275. When indicted as perpetrator of the murder, cannot be found guilty as principal in the second

degree : 36 Ga., 222. Same in case of larceny : 40 Ga., 121. Conviction as principal in

the second degree of murder after the principal in the first degree acquitted : See 52

Ga., 53 ; also 54 Ga., 439. Cannot be convicted as accessory after the fact on an indict-

ment charging defendant as principal : 52 Ga., 287. Principal and accessory before the fact jointly indicted, and as to trial of, at the same term: 45 Ga., 57. No principal in

the second degree in misdemeanors: 54 Ga., 55 ; 33/137. Section cited: 54 Ga., 649. As to charges in indictment against principals in the first and second degree, and as to

evidence of one against the other : 60 Ga., 620. Indictment against two, charging them with larceny: 60 Ga., 368. Against several with assault with intent to murder: 60

Ga.,284. Two indicted and jointly tried for robbery : 59 Ga., 84-87. Conviction of one as principal in the second degree contrary to law, where no evidence of guilt of principal in the first degree: 64 Ga., 697. And onus on principal in the second degree to show that principal in the first degree should not have been convicted, which does not applv where all jointly indicted as principals in first degree where they sever on trial Coxwell vs. State, Pamphlt,, Feb., 1881, p. 22.

§4306. (4241.) (4205.) Accessory. An accessory is one who is not the chief actor in the offense, nor present at its performance, but is some way concerned therein, either before or after the act committed.

No accessories in misdemeanors: 33 Ga., 137. As to whether receivers of stolen

goods were accessories before or after the fact : 42 Ga., 221-5 ; 58/554.

§4307. (4242.) (4206.) Accessory before the fact. An accessory before the fact is one who, being absent at the time of the crime committed, doth yet procure, counsel, or command another to commit a crime.

Defined: 15 Ga., 346. Advantage should be taken of joinder in the same count of the principal and the accessory before the fact previous to the case being submitted to

the jury : 37 Ga., 51. Sayings to the thief at the time of the larceny admitted against

his accessory after the fact: 43 Ga., 197. Accessory before the fact in case of murder :

25 Ga., 301. Jointly indicted with the principal felon : 45 Ga., 57. Accessory before

the fact in arson not tried until after the conviction of the principal felon, generally : 46 Ga., 298.

§4308. (4243.) (4207.) Accessory after the fact. An accessory after the

54488, 4490. fact is a person who, after full knowledge that a crime has been committed, conceals it from the magistrate, and harbors, assists, or protects the person charged with or convicted of the crime. On a charge of being accessory after the fact, the guilt of the principal must be proved: 4 Ga., 465. Principal offender and accessory after the fact properly included :

PART IV.—TITLE I.—DIVISION III. 1187

('rimes against the State and people.

in the general count in an indictment : 10 Ga., 48. When would be an accessory after

the fact, and where would be principal : 30 Ga., 759. What was said to the thief at the time of the larceny admissible against his accessory after the fact: 43 Ga., 197. On

indictment as principal, no conviction as accessory after the fact : 52 Ga., 287.

§4309. (4244.) (4208.) Punishment of principal in second degree. A principal in the second degree and an accessory before the fact, except where it is otherwise provided for in this Code, shall receive the same punishment as is directed to be inflicted on the principal in the first degree, or perpetrator of the crime. " §4310. (4245.) (4209.) Punishment of accessories after the fact. Acces- (a) Acts of

6 " sories after the fact, except where it is otherwise ordered in this Code, ^f" ' p shall be punished by a fine not to exceed one thousand dollars, impris- 8 '* onment not to exceed six months, to work in the chain-gang on the public ^p. ^. works, or on such other works as the county authorities may employ the chain-gang, not to exceed twelve months, and any one or more of

these punishments may be ordered in the discretion of the Judge : Pro- vided,that nothing herein contained shall authorize the giving the control of convicts to private persons, or their employment by the county authorities in such mechanical pursuits as will bring the products of their labor into competition with the products of free labor.*

I ! Where alternative sentence of fine or imprisonment should fix a reasonable time in

which to pay the fine : 47 Ga., 390. Section referred to where accusation of cattle steal-

ing : 58 Ga., 493. Where commissioners of Quitman county could not hire out convicts to work on a man's private plantation, and as to Act of 1875 being unconstitutional 59 Ga., 801.

§4311. Accessories, when tried. [An accessory, before or after the fact, (a) Acts of 1873, 28< may be indicted, tried, convicted and punished, notwithstanding the p - principal offender may have been pardoned or otherwise discharged after his conviction, or cannot be taken so as to be prosecuted and punished.] (a) General Note. —On election by defendants jointly indicted to be tried separately,

one not on trial a competent witness for the one tried : 1 Ga., 610 ; but see 22 Ga., 400. Where acts '"and declarations of one accomplice or co-conspirator admissible against an-

other : 8Ga.,408; 20/681; 17/356; 18/704; 61/182. Combination and connivance for

the detection of an offense : 11/123 ; 16/602 ; 31/206. One previously agreeing to par-

ticipate in a crime may repent : 30 Ga., 757. Conviction cannot be had on the uncor-

roborated testimony of an accomplice, only applies to felonies : See 43 Ga., 197 ; 44/209; 51/597; 52/527,106. Contradiction of testimony of accomplices: 56 Ga., 314. What corroborating circumstances will warrant conviction on the testimony of an accom-

plice : 44 Ga., 215; McCaller vs. State, Pamphlt., Feb., 1881, page 32.

General Note on Second Division. —Subject treated : 1 Bish. Cr. Law, §593 ; 1

Whart. Cr. Law, §91; 1 Arch. Cr. Fr. and PL, 55 ; 3 Gr. Ev., §§40-50 ; 2 Bish. Cr. Proc, .§1

THIRD DIVISION. CRIMES AGAINST THE STATE AND PEOPLE.

Section. Section. 4812. Treason and insurrection. 4316. Attempt to incite. 4313. Treason, first degree. 4317. Punishment. 4314; Treason, second degree. 4318. Insurrectionary papers. 4315. Insurrection.

§4312. (4246.) (4211.) Insurrection. Crimes against the State and people shall consist in treason in the first degree and second degree, exciting, or attempting to excite, an insurrection.

§4313. (4247.) (4212.) Treason in first degree, punishment. Treason in (a ) Acts of 1866 p- 15°- first degree shall consist in levying war against the State in the same, or > being adherent to the enemies of the State within the same, giving to them aid and comfort in this State or elsewhere, and thereof being

"Many sections of the Code provided for punishment under section 4310 of the Code before it was amended. How does the proviso of this affect those sections ? 1138 PART IV.—TITLE I.—DIVISION III. —

» Crimes against the State and people.

legally convicted of open deeds by two or more witnesses, or other competent and credible testimony, or voluntary confession; these cases;

shall be adjudged treason against the State and people ; and when the

• overt act of treason shall be committed without the limits of this State- the person charged therewith may be arrested and tried in any county in this State, within the limits of which he may be found, and, being- thereof convicted, shall be punished in like manner as if the said treason had been committed and done within the limits of said county. Treason in the first degree shall be punished with death, [but the punishment may be commuted in conformity with the provisions of section 4323 of this Code.] (a.)

2 Bish. 2 Bish. 2 Whart. Cr. Law, §2766; 76., §1177; Cr. Proa, §1030; 3 Gr. Ev. r

§237 ; Code, §5019. §4314. (4248.) (4213.) Treason in second degree. Treason in the second degree shall consist in the knowledge and concealment of treason,, without otherwise assenting to or participating in the same. The punishment of treason in the second degree shall be confinement and hard labor in the penitentiary for four years. §4315. (4249.) Insurrection [Insurrection shall consist in any com- (b) Acts of bined resistance to the lawful authority of the State, with intent to the if^iS*' denial thereof, when the same is manifested, or intended to be manifested, by acts of violence ] (b.) §4316. (4250.) Attempt to incite insurrection. [Any attempt, by per- (b) Acts of suasion, or otherwise, to induce others to join in any combined resis- P " li!? i53 tance to the lawful authority of the State, shall constitute an attempt, to incite insurrection.] (b.) §4317. (4251.) Punishment of insurrection. [Any person convicted of (a) Acts of the offense of insurrection, or an attempt [to incite] (a.) insurrection,, 7 2 PP ' ' or, if i9 20 shall be punished with death ; the jury recommend to mercy,. (b) Acts of confinement in the penitentiary for a term not less than five nor more P i52,i53 ' than twenty years.] (b.)

Before the Act of 1871-2, this section prescribed no. penalty for the offense of an at-

: tempt to incite insurrection 38 Ga. ? 571. §4318. (4252.) (4215.) Circulating insurrectionary papers. [Ifanyper-

(a) Acts of son shall bring, introduce, print, or circulate, or cause to be introduced, 6 PP ' circulated, or printed, or aid or assist, or be in any manner instrumental i52 'i 3 in bringing, introducing, circulating, or printing within this State, any paper, pamphlet, circular, or any writing, for the purpose of exciting insurrection, riot, conspiracy, or resistance against the lawful authority of the State, or against the lives of the inhabitants thereof, or any part of them, such person or persons so offending shall be guilty of a high misdemeanor, and on conviction shall be punished by confinement in the penitentiary for a term not less than five nor longer

than twenty years.] (a ) /^e^***-£ ^21v -(^^SkZ-Z. -^t-~-***. d2~*m~&~<* + ~ -£— / £+-^Z& i<*^-* , 1

PART IV.—TITLE L—DIVISION IV. 1139

Crimes and offenses against the persons of citizens or individuals.

FOURTH DIVISION.

"CRIMES AND OFFENSES AGAINST THE PERSONS OF CITIZENS OR INDI- VIDUALS.

Sectio N.i Sectio N. 4319. Homicide. 4345. Ear or lip, punishment. 4320. Murder. 4346 Castration, punishment. 4321. Express malice. 4347. Wounding privates. 4322. Implied malice. 4348. Other mayhems. 4323. Punishment of murder. 4349. Rape. 4324. Manslaughter. 4350. Punishment.

4325. Voluntary. . 4351. Assault with intent. 4326. Punishment. 4352. Sodomy. 4327. Involuntary. 4353. Punishment. 4328. Punishment. 4354. Bestiality. 4329. Fine and imprisonment. 4355. Punishment. 4330. Justifiable homicide. 4356. Attempt. 4331. Reasonable tear. 4357. Assault. 4332. Invasion of property. 4358. Punishment. 4333. Self-defense. 4359. With intent to rob. 4334. Other cases 4360. Punishment. 4335. No punishment. 4361. With intent to injure clothes. 4336. Advisers to infanticide. 4362. Battery. 4337. Concealment of child 4363. False imprisonment. 4337. (a.) Foeticide, how punished. 4364. Without process.

4337. (b. i Use of medicine, assault with intent 4365. Under color of process. 1 to murder. 4366. Kidnapping. 4337. (p.) Abortion, punishment of. 4367. Inveigling children. 4338. Fine and imprisonment. 4368. Assault with intent to murder. 4339 Mayhem. 4369. Stabbing. 4340. Specification. 4370. Shooting. 4341. Tongue, punishment. 4371. Seduction. 4342. One eye, punishment. 4372. Using abusive or obscene language 4343. Only one eye, or both eyes. 4373. Abandonment of children. 4344. Nose, punishment.

§4319. (4253.) (4216.) Homicide. Homicide is the killing of a human §4369. feeing, of any age or sex, and is of three kinds—murder, manslaughter, and justifiable homicide.

General Note on Homicide. —Grades of homicide, in charge to the jury: 10 Ga. > 101; 12/143: 17/204; 22/75; 25/699; 29/594; 31/424; 36/222; 39/718; 41/485; 55/697; 56/113; 64/318,454. Homicide of ministers of justice: 17 Ga., 194; 18/383; 30/426- Decisions relating to slaves: 8 Ga., 173; 9/492; 15/535; 16/200; 22/545; 25/301,689;

33/1-4. Indictment that was sufficient where a person of color was killed : 48 Ga., 31.

Principals : and accessories in 8 Ga., 408 ; 10/48; 17/194; 18/704: 25/301; 28/200,604;

36/222; 45/57. Evidence of character : 5 Ga., 86; 10/101; 18/194; 19/102; 43/88. Quar- rels: 5 Ga., 86; 12/142; 43/88. Weapons: 22 Ga., 546; 27/649; 31/167. Jurisdiction of the Court : 11 Ga., 615 ; 34/78. Previous fight : 18 Ga., 460 ; 25/396. Escape : 25 Ga., 527; 26/276. Threats: 5 Ga., 48-86; 18/194; 29/470; 39/718. Explaining threats: 49 Ga., 12. Identity, the fact of killing: 11 Ga., 615. Size of the parties: 15 Ga., 118;

25/699. Attempt at seduction : 29 Ga., 724. Death, place of : 34 Ga., 78. Character of

the house where crime committed : 42 Ga., 609. Rumors of approaching marriage

brought home to the suitor, the defendant : 43 Ga., 484. As to unpopularity of a negro with his race: 45 Ga., 516. What newly discovered evidence warrants the grant of a new trial: 47 Ga., 230. Indictment, when barred: IGa., 222. Where indictment for

manslaughter charges facts constituting murder : 25 Ga., 689. Indictment for murder and verdict for manslaughter: 26 Ga., 579. Indictment against defendant as absolute

perpetrator: 36 Ga., 222. Indictment for murder for shooting with a pistol : 47 Ga. 524. Verdict of manslaughter on trial of murder: IGa., 222; 9/264. Upon evidence

making out case. : a of ; murder murder 13 Ga., 328 22/546 ; 26/579. Verdict guilty of

, instead.-^! guilty^generally : 26 Gte, -275 ; 17/498.. Guilty of murder in the second de-

gree where defendant indicted as absolute perpetrator : 36 Ga., 222. Guilty of involun-

tary manslaughter : 38 Ga., 117. Of manslaughter: 45 Ga., 198. Where no conviction of assault with intent to murder, if death had ensued, could only be guilty of man-

slaughter : 46 Ga., 159.

§4320. Murder. Murder is the unlawful killing of a (4254.) (4217.) §4438 . human being, in the peace of the State, by a person of sound memory and discretion, with malice aforethought, either express or implied.

Killing proved, etc., on prisoner giving in facts in rebuttal, the State may show ex-

press malice : 14 Ga., 43. What circumstances constitute murder : 7 Ga., 3-14; 19/103;

22/401-402. Finding guilty of manslaughter on indictment for murder : 22 Ga., 546.

Where the reasonable doubt of guilt should have prevailed under the evidence : 24 Ga., 315. May kill another against whom he entertains malice and not be guilty of mur-

der : 25 Ga., 527. Prisoner need not entertain personal ill will to deceased to make the

killing of him murder : 26 Ga., 276. When to defense of prisoner to a homicide proven

against him, the State may show express malice : 31 Ga., 424. Where involuntary kill- ;

1140 PART IV.—TITLE I.—DIVISION IV.

Crimes and offenses against the persons of citizens or individuals.

ing in the commission of an unlawful act was murder : 31 Ga., 236. Not always malice

where there is a secret carrying of deadly weapons : 33 Ga., 303. Must be malice at the

time of the killing : 35 Ga., 54. A verdict of murder not sustained by the evidence : 43-

Ga., 239. Where it was : 48 Ga., 67 : 52/608. Where the law of mutual combat did not

apply : 46 Ga., 148-158 , 55/48. Provocation by abusive words did not reduce the hom-

icide to manslaughter : 55 Ga., 317, 348. Where not involved: 58 Ga., 212. Evidence sufficient to convict of murder, although the verdict was for voluntary manslaughter threats: 57 Ga., 183-4. Wherein grading the homicide between murder and voluntary

manslaughter, involuntary homicide and circumstantial evidence were not involved :

58 Ga., 215. Murder of a wife : 60 Ga., 247. That which would be justifiable in deceased, not legal provocation to slayer: 29 Ga., 470.

2 Whart. Cr. Law, ?§930, 944 et seg. ; 2 Bish. lb., §§668, 753 ; 2 Bish. Cr: Proc, §540 ;. 1 Arch. Cr. 1 ; s Cr. Pr. and PL, 727 ; 3 Gr. Ev., §130; Hawley Rep.,. 262; 18 Am. D., 778-787, n. §4321. (4255.) (4218.) Express malice. Express malice is that deliberate intention unlawfully to take away the life of a fellow-creature,, which is manifested by external circumstances capable of proof.

Defined: 3 Ga., 324. Competent evidence to rebut the presumption of malice: 5 Ga., 49, Where intent to shoot a moment before the firing, evidence of ex-

press malice : 11 Ga., 615. Proof of express malice by the State: 31 Ga., 424; 14/43.

Malice from the killing: 41 Ga,, 485; 42/613;, 49/211 ; 50/556. Motives for malice : 43

Ga., 484, 522: 49/12 ; 55/325. Where motive was not rebutted by the provocation : 55 Ga., 48. Evidence of threats to show malice: 57 Ga., 183. Providing weapon in ad-

vance as evidence of malice : 58 Ga,, 36. §4322. (4256.) (4219.) Implied malice. Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.

When implied: 35 Ga.. 59; 42/613. Where malice not implied from weapon used : 15Ga.,223; 33/449; 20/761. Implied where no considerable provocation appears: 25

Ga., 207. Going around with a pistol as evidence of malice : 22 Ga., 401-402, Presumed

when : 35 75 Also shooting at hitting homicide shown Ga , ; 50/556; 41/484. where and

with a pistol : 39 Ga., 31. Drunkenness as showing whether there was malice : 49 Ga.,. 211. Sayings next day, as showing malice at the time of the stabbing: 51 Ga.,429i.

Difficulty three weeks before, to show whether the killing was with malice : 51 Ga.,.

502. Motive as showing malice : 55 Ga., 325. §4323. (4257.) (4220.) Murder, death. The punishment for persons Acts of 1878 convicted of murder shall be death, but may be confinement in the -9, p. 60. penitentiary for life, in the following cases: If the jury trying the case shall so recommend, or if the conviction is founded solely on circumstantial testimony, the presiding Judge may sentence to confinement in the penitentiary for life. In the former case, it is not discretionary

with the Judge ; in the latter it is. Discretion of the Judge below as to punishment by death or other punishment, rarely

interfered with : 28 Ga., 576. Where should not charge the jury that they could rec-

ommend to mercy, but that they could recommend sending to penitentiary for life : 35> Ga., 5. And the jury should not have so recommended unless conviction solelvon cir-

cumstantial evidence : 47 Ga.,525; 38/492; 51/303-4; 52/82,122. Section construed

with reference to section 4311 as to arson of a dwelling-house on a plantation : 47 Ga.,.

583 ; 49/451. Where the conviction was solely on circumstantial evidence and the

Judge should re-sentence : 53 Ga., 196. Court restricted by the verdictof the jury from any other punishment than imprisonment in the penitentiary for life: 54 Ga., 242.

Sueh a ^ase as was not founded solely on circumstantial evidence : 57 Ga., 329 ; 58/264 ;. 60/247-251.

, §4324. (4258.) (4221.) Manslaughter. Manslaughter is the unlawful killing of a human creature, without malice, either express or implied,, and without any mixture of any deliberation whatever, which may be voluntary, upon a sudden heat of passion, or involuntary, in the commission of an unlawful act, or a lawful act, without due caution and circumspection.

To reduce a homicide from murder to manslaughter, the slayer is not compelled be-

fore the mortal wound given to retreat from his domicile or family : 17 Ga., 465. On sud-

den quarrel and heat of passion : 30 Ga., 67. When it is manslaughter after assault en-

dangering life or limb : 33 Ga., 4. Provocation not freeing the person killing from manslaughter: 45 Ga., 198. On indictment for murder, a finding guilty of manslaughter means the highest grade of manslaughter: 50 Ga., 128. Where killing a trespasser with

a deadlv weapon would be murder, and not manslaughter : 58 Ga., 35 ; but see 22 Ga. r 479; 5/86. PART IV.—TITLE I.—DIVISION IV. 1141

Crimes and offenses against the persons of citizens or individuals.

§4325. (4259.) (4222.) Voluntary manslaughter. In all cases of voluntary manslaughter, there must be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice, either express or implied. Provocation by words, threats, menaces, or contemptuous gestures, shall in no case be sufficient to free the person killing from the guilt and crime of murder. The killing must be the result of that sudden, violent impulse of passion, supposed

to be irresistible ; for if there should have been an interval between the assault or provocation given and the homicide, sufficient for the voice of reason and humanity to be heard, the killing shall be attrib- uted to deliberate revenge, and be punished as murder.

Under indictment for murder may find guilty of voluntary manslaughter: 1 Ga.,

222. Threats of which there was knowledge, and yet it was held to be manslaughter :.

14 Ga., 361 ; 18/194. As to provocation, heat of blood, and mutual intention to fight

reducing murder to manslaughter: 15 Ga., 223. Serious personal injury construed : 24 Ga., 282, 297. Where provocation by threats will not reduce. murder to manslaugh- > ter: 25 Ga,, 207; 53/428; 59/249-250, 515. What sufficient provocation: 55 Ga., 317..

Where the jurv found suilty of voluntary manslaughter under the evidence : 48 Ga., 30; 42/546; 57/183; 28/200; 32/496; 55/698. As to threats: 39 Ga., 718; 18/194;. '• 22/479; 29/470; 45/198; 49/211: 31/261; 5/86; 25/207. As showing malice: 57 Ga., 183. Previous difficulty and agreement to right: 31 Ga., 411. Section cited and construed: 46 Ga., 163; 48/82. Verdict "guilty of manslaughter" means voluntary

manslaughter : 50 Ga., 128. Where an indictment for murder, a charge as to voluntary manslaughter should not be given: 56 Ga., 114. In case of voluntary manslaughter there must be some assault, etc.: 56 Ga., 583. Where if death had ensued from the

throwing of a stone it would have been manslaughter : 63 Ga., 581. 2 Whart. Cr. Law, $969; 2 Bish. 76., 2§707. 757; 2 Bish. Cr. Proa, §495; 1 Arch. Cr. ille- Pr. and PL, 700 ; 3 Gr. Ev., §119 ; 1 Hawley's Cr. Rep., 276, 283, 287, 293. Resisting gal arrest: 18 Am. R., 601.

§4326. (4260.) (4223.) Punishment. Voluntary manslaughter shall be Acts of 185&, "• punished by confinement and labor in the penitentiary for a term not p - less than one nor longer than twenty years. §4327. (4261.) (4224.) Involuntary manslaughter. Involuntary manslaughter shall consist in the killing of a human being without any intention to do so, but in the commission of an unlawful act, or a lawful act, which probably might produce such a consequence in an unlawful

manner : Provided, always, that where such involuntary killing shall happen in the commission of an unlawful act which, in its consequences, naturally tends to destroy the life of a human being, or is committed in the prosecution of a riotous intent, or of a crime punishable by death or confinement in the penitentiary, the offense shall be deemed and adjudged to be murder.

Involuntary killing in the commission of an unlawful act: 19 Ga., 103 ; 59/391-2: Where the Judge wrongfully excluded from the jury's considering of involuntary

manslaughter : 5 Ga., 441 ; 10/102. No sufficient evidence to permit of instructing the

jury as to involuntary manslaughter : 17 Ga., 200; 22/83,485; 18/230; 58/212; 55/697.

Where there was sufficient evidence to allow the Judge to so charge : 57 Ga., 479. When accidental killing not murder or involuntary manslaughter in the commission of an unlawful act: 22 Ga., 479. No ill will or malice toward did not excuse the involuntary

killing in the commission of an unlawful act : 31 Ga., 236. Where on indictment for murder with one count, a finding guilty of involuntary manslaughter should not have

been : 30 Ga., 117. So guilty of manslaughter without due caution and circumspection :

58 Ga., 545. In the doing of a lawful act without due caution : 25 Ga., 510. 690 ; 31/167.

2 Whart. Cr. 1 ; Law, §997 ; Arch. Cr. Pr. and PL, 654 et seq. 3 Gr. Ev., §128. §4328. (4262.) (4225.) Punishment. Involuntary manslaughter, in the commission of an unlawful act, shall be punished by confinement and labor in the penitentiary for a term not less than one nor longer than three years.

Section referred to and construed: 50 Ga., 129. §4329. (4263.) (4226.) Punishment. Involuntary manslaughter, in the commission or performance of a lawful act, where there has not been 1142 PART IV.—TITLE I.—DIVISION IV.

Crimes and offenses against the persons of citizens or individuals.

In cases falling under this section the private injury is not merged in the public, or

suspended, until the public has been avenged : 15 Ga., 349.

§4330. (4264.) (4227.) Justifiable homicide. There being no rational distinction between excusable and justifiable homicide, it shall no longer exist. Justifiable homicide is the killing of a human being by commandment of the law in execution of public justice; by permis-

sion of the law in advancement of public justice ; in self-defense, or in defense of habitation, property, or person, against one who manifestly intends, or endeavors by violence or surprise to commit a felony on either; or against any persons who manifestly intend and endeavor, in a riotous and tumultuous manner, to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein.

Defined: 55 Ga., 50. " Against any person who manifestly intends, etc.," applies to

the joint action of two or more persons : 2 Ga., 173. What would constitute justifiable

homicide in self-defense : 5 Ga., 86; 17/465-484. When fears of a reasonable man make

the homicide justifiable : 18 Ga., 194; 31/167; 57/184; 55/50. There should be a neces-

sity for the killing, and it done in good faith to the public : 22 Ga., 212 ; 60/609 ; 65/431. Where the charge of the Judge as to justifiable homicide did no injury. 46 Ga., 157.

Section referred to and construed : 64 Ga., 467.

Self-defense: 2 Whart. Cr. Law, ?1019 et seq. ; 2 Bish. lb., g624, 643; 1 Arch. Cr. Pr.

and PL, 676; 1 Hawley's Cr. Rep., 251, 272 ; 26 Am. D., 280, n ; Horrigan & Thompson's

Cases on Self-Defense ; 8 Am. R., 474; 12/200. As to obligation of assailed person to

retreat: 2 Hawley's Cr. Rep., 251, 318 ; 23 Am. R., 733 ; 26/52.

§4331. (4265.) (4228.) Fear, to be an excuse, must be reasonable. A bare fear of any of those offenses, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable man, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge.

Threats to prove the reasonableness of defendant's fears : 5 Ga., 86. Fears of a reasonable man defined: 31 Ga., 167; 18/194; 25/527; 57/184; 22/76. What sufficient to

: excite the fears of a reasonable man is for the jury to determine 41 Ga., 527 ; 42/609. When failure of the Judge to charge as to reasonable fears was not error: 47 Ga.,

230. Also where it was error to refuse to so charge : 51 Ga., 429. Section cited as to

bare fear being insufficient: 55 Ga., 50 ; 57/184. Where the doctrine of reasonable fears

was not applicable : 58/309. Must show necessity for the killing : 60 Ga., 609.

§4332. (4266.) (4229.) Killing in defense. If, after persuasion, remon- strance, or other gentle measures used, a forcible attack and invasion on the property or habitation of another cannot be prevented, it shall be justifiable homicide to kill the person so forcibly attacking and in- or of it appear that vading the property habitation another ; but must such killing was absolutely necessary to prevent such attack and invasion, and that a serious injury was intended, or might accrue to the person, property, or family of the person killing.

The killing a trespasser designing to commit a felony would be self-defense : 5 Ga.,

•86. As to retreat from domicile or family : 48 Ga., 301 ; 58/309 ; 2/182 ; 17/465-483. De- fense of one's self in his house: 34 Ga., 259. Must be a necessity for the killing to jus-

it : it is for to prove tify 33 Ga., 4: 43/89 ; 22/212; 60/611. And competent the State

that the prisoner was a large, and the deceased a small man : 25 Ga., 699. Section re-

ferred to and construed :. 43 Ga., 89 ; 47/249. Where this section was properly charged

by the presiding Judge : 39 Ga., 718.

§4333. (4267. ) (4230.) The danger must be urgent. If a person kill another in his defense, it must appear that the danger was so urgent and pressing at the time of the killing, that in order to save his own life, the killing of the other was absolutely necessary; and it must appear, also, that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given. PART IV.—TITLE I.—DIVISION IV. 1143

Crimes and offenses against the persons of citizens or individuals.

Accused must show he took life of deceased to save his own by necessity : 17 Ga., 465; 25/701; 22/76. Where this section rightfully charged by Court below: 39 Ga., 718. Section referred to: 43 Ga., 87. No evidence of declining further struggle: 50

Ga., 230; 58/314; Urgency of the danger: 57 Ga , 184-7. Prisoner was the assailant : 59 Ga., 391-2.

§4334. (4268.) (4231.) All other instances. All other instances which stand upon the same footing of reason and justice as those enumerated, shall be justifiable homicide.

Cases that stand on the same footing of reason and justice : 18 Ga., 704. Taking the life of one attempting the sedaction of wife, the jury to determine whether embraced within this section : 29 Ga., 724. Judge rightfully refusing to charge this section : 51

Ga., 310. Section referred to and construed : 64 Ga., 467. Homicide not justified by defendant's belief that deceased had given drugs to defendant's sister in vain effort to seduce her : 33 Am. E., 380.

§4335. (4269.) (4232.) Justifiable homicide not punished. The homicide appearing to be justifiable, the person indicted shall, upon the trial, be fully acquitted and discharged. §4336. (4270.) (4235.) Advisers to kill infants. If any person shall counsel, advise, or direct a woman to kill the child she is pregnant or goes with, and after she is delivered of such child, she kill it, every such person so advising or directing, shall be deemed an accessory before the fact to such murder, and shall have the same punishment as the principal. Infanticide: 2 Bish. Crim. Law, §166; 3 Whart, Cr. Law, §3530; 1 Arch. Cr. Pr. and PL, 734; 2 Hawley Cr. Rep.. 274; 22 Am. R., 257.

§4337. (4271.) (4236.) Concealment of child's death. The constrained presumption arising from the concealment of the death of any child, that the child whose death is concealed, was therefore murdered by the mother, shall not be sufficient or conclusive evidence to convict the person indicted of the murder of her child, unless probable proof be given that the child was born alive, nor unless the circumstances attending it shall be such as shall satisfy the minds of the jury that the mother did willfully and maliciously destroy and take away the life of such child.

§4337. (a.) Foeticide, how punished. The willful killing of an unborn Acts of 1876, child so far developed as to be ordinarily called "quick," by any injury to p- 113 - the mother of such child, which would be murder if it resulted in the death of such mother, shall be guilty of a felony, and punishable by death or imprisonment for life, as the jury trying the case may recommend. §4337. (b.) Use of medicine, assault with intent to murder. Every person Actsofi876, who shall administer toany woman pregnant with a child, any medicine, p- n3 - drug or substance whatever, or shall use or employ any instrument or other means with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose shall, in case of the death of such child or mother be thereby j^roduced, be declared guilty of an assault with intent to murder.

§4337. (c.) Abortion, punishment of. Any person who shall willfully Acts of 1876, administer to any pregnant woman any medicine, drug or substance, p - 113, or anything whatever, or shall employ any instrument or means whatever with intent thereby to produce the miscarriage or abortion of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by two physicians to be necessary for that purpose, shall, upon conviction, be punished as prescribed in section 4310 of the Code.

2 Bishop Cr. Law, $6 ; 2 Whart. lb., £1220; 1 Arch. Cr. Pr. and PL, 951; 1 Hawley's Crim. Rep., 29; 2/1, 603; 31 Am. R., 148. §4338. (4272.) (4237.) Punishment. If any woman shall conceal or attempt to conceal the death of any issue of her body, male or female, 1144 PART IV.—TITLE I.—DIVISION IV.

Crimes and offenses against the persons of citizens or individuals.

(a) Acts of which, if it were born alive, would, by law, be a bastard, so that it may 6 P ' ' it 2I3? n°t come to light, whether was murdered or not, every such mother being convicted thereof, shall be punished [as prescribed in section 4310 of this Code.] (a.)

2 Whart. Cr. Law, £1235; 1 Arch. Cr. Pr. and PL, 981.

§4339. (4273.) (4238.) Mayhem. Mayhem shall consist in unlawfully • depriving a person of a member, or disfiguring or rendering it useless.

This was not a felony at common law, except by castration : 5 Ga., 404.

2 Whart. Cr. Law, §1171 ; 2 Bish. lb.. §969; 2 Bish. Cr. Proa, §850; 1 Arch. Cr. Pr. and PL, 876; 2 Hawley Cr. Rep., 631.

§4340. (4274.) (4239.) In what it consists. If any person shall unlawfully, and without sufficient cause or provocation, cut out or disable the tongue, put out an eye, slit or bite the nose, ear or lip, or cut or bite off the nose, ear or lip, or castrate, or cut, or bite off, or disable any other limb or member of another, with an intention in so doing to maim or disfigure such person, or shall voluntarily, maliciously, and of purpose, while fighting or otherwise, do any of these acts, every such person shall be guilty of mayhem. §4341. (4275.) (4240.) Cutting the tongue, penitentiary five to fifteen years. A person convicted of cutting out the tongue, with the intention, or voluntarily, or maliciously, as expressed in the preceding section, shall be punished by confinement and labor in the penitentiary for life. A person convicted of disabling the tongue, with the int mtion, or voluntarily, or maliciously, as expressed in the preceding section, shall be punished by confinement and labor in the penitentiary for a term not less than five years, nor more than fifteen years. §4342. (4276.) (4241.) Putting out one eye, punishment. A person con-

(a) Acts of victed of putting out an eye with the intention, or voluntarily, or ma- 5 "6 p ' ' liciously, as before expressed, in fight or otherwise, shall be punished 2I3 [as prescribed in section 4310 of this Code.] (a.)

§4343. (4277.) (4242.) Both eyes, or the only eye, penitentiary for life. A person convicted of putting out the eyes of another, or the eye of another having but one eye, with a similar intention, or voluntarily, or maliciously, while fighting or otherwise, shall be punished by confinement and labor in the penitentiary for and during the term of his or her natural life. §4344. (4278.) (4243.) Slitting or biting nose, punishment. A person (a^ Acts of convicted of slitting or biting the nose, ear or lip of another, with the 6 P m" ' ' intention, or voluntarily, or maliciously, as before expressed, while fighting, or otherwise, shall be punished [as prescribed in section 4310 of this Code.] (a.) §4345. (4279.) (4244.) Cutting or biting off the nose, ear or lip, punish- (a) Acts of ment. A person convicted of cutting or biting off the nose, ear or lip of 5 " 6 p - ' maliciously, as before ||| another, with the intention, or voluntarily, or expressed, while fighting or otherwise, shall be punished [as prescribed in section 4310 of this Code.] (a.) §4346. (4280.) (4245.) Castration, death. A person convicted of the

(b) Acts of crime of castrating another, with the intention, or voluntarily, or ma- 1866, p. 150. liciously, as before expressed, while fighting or otherwise, shall be punished with death, [but the punishment may be commuted in conform^ ity with the provisions of section 4323 of this Code.] (b.)

§4347. (4281.) (4246.) Wounding in a, less degree, penitentiary five to fifteen years. A person convicted of willfully and maliciously injuring^ wounding, or disfiguring the private parts of another, with the intention aforesaid, whilst fighting or otherwise, which injuring, wounding or disfiguring, do not amount to castration, shall be punished by con- :

PART IV.—TITLE I.— DIVISION IV. 1145

Crimes and offenses against the persons of citizens or individuals. finement and labor in the penitentiary for a term not less than five years nor longer than fifteen years.

§4348. (4282.) (4247.) Other mayhems. A person convicted of cutting (a) Acts of 5 " 6 p> or biting off, or disabling any limb- or member of another, not herein-^ ' before designated, with the intention, or voluntarily, or maliciously, as before expressed, while fighting or otherwise, shall be punished [as prescribed in section 4310 of this Code.] (a.) §4349. (4283.) (4248.) Rape. Rape is the carnal knowledge of a female, forcibly and against her will.

No consent bv child under ten years of age so as to rebut the presumption of force :

11 Ga.. 227 ; 55/303 ; 62/560. As to evidence in, and the weight of proof : 20 Ga., 156; 42/473-481. On indictment for rape may be found guilty of assault with intent to rape 14 Ga., 55-68. Complaint soon after the occurrence: 55 Ga., 303. Intent to use violence, although afterward desisting: 48 Ga., 20; 50/80-1. Not sufficiently proven, where pregnancy and the injury concealed : 49 Ga., 185. As to the indictment and what evidence to convict: 53 Ga., 50. Slight penetration sufficient : 54 Ga., 440-1. For- nication not included in the crime of rape: 60 Ga., 381. Should be no conviction of assault with intent to rape under indictment of rape : 62 Ga., 558 ; 56/84-5 and evidence ; but see 20 Ga , 170.

2 Whart. Cr. ; : Law, 2 Bish. ; 2 Bish. Cr. Proc, 3 Gr. Ev §1124 76., §1066 §947 , §209 ;

1 Arch. Cr. Pr. and PL, 994 ; 1 Hawlev's Cr. Rep., 646-655 ; 2/583.' Female insensible :

7 Am. R., 535, n; or imbecile : 32 Am. R., 134. Force: 12 Am. R., 290, n ; 17/349; 36/856.

§4350. (4284.) (4249.) Punishment. [The crime of rape in this State (b) Acts of 1866, 151, shall be punished with death, unless the defendant is recommended to p - mercy by the jury, in which case the punishment shall be the same as for an assault with intent to commit a rape.] (b.) §4351. (4285.) (4250.) Assault id ith intent of rape. An assault with (b) Acts of 15L intent to commit a rap9 shall be punished by an imprisonment at 1866, p [hard] (b) labor in the penitentiary [of this State] (b) for a term not less than one year nor longer than [twenty] (b) years. Sufficient for indictment to be in the language of the Code, evidence of the injured person being a prostitute : 3 Ga., 417. Finding guilty of the attempt at, under indictment for rape : 12 Ga., person 226 ; 14/55. Verdict sustained, evidence of the injured being quite young, although evidence not fre^ from discrepancies: 18 Ga.,343. Two counts, and found guilty under one of them for the attempt : 20 Ga., 156. Sufficient evidence to convict: 35 Ga., 264; 48/16. Where prisoner desisted from violence: 50

Ga., 79 ; 53/51-2. No evidence of defendant's intention to have forcible carnal knowledge : 63 Ga., 355. Punishment not excessive: 64 Ga., 437.

Pursuing a woman through woods supports conviction : 21 Am. R., 496. No conviction if female, although child, consents to what was done: 21 Am. R., 754. Con- viction sustained where final consent was given : 32 Am. R.. 134. §4352. (4286.) (4251.) Sodomy. Sodomy is the carnal knowledge and connection against the order of nature, by man with man, or in the same unnatural manner with woman.

2 Whart, Cr. : lb., Pr. Law,§1161 2 Bish. §1172 ; 1 Bish. Cr. Proc, §1013 ; 1 Arch. Cr. and PL, 1015.

§4353. (4287.) (4252.) Penitentiary for life. The punishment of sodomy shall be imprisonment at labor in the penitentiary for and during natural life of the person convicted of this detestable crime. §4354. (4288.) (4253.) Bestiality. Bestiality is the carnal knowledge and connection against the order of nature by man or woman in any manner with a beast. A verdict of guiltv not illegal because contains recommendation to mercy: 51 Ga., 236.

1 Arch. Cr. Pr. and PI., 1018 : 2 Bish. Cr. Law, §1172.

§4355. (4289.) (4254.) Penitentiary five to twenty years. The punish- Acts of i880 -1 p - 74 - ment of bestiality shall be imprisonment in the penitentiary of this ' State for a term not less than five years, nor more than twenty years, in the discretion of the presiding Judge. §4356. (4290.) (4255.) Attempt. An attempt to commit sodomy or (a) Acts of bestiality shall be punished [as prescribed in section 4310 of this^"6,p - Code.] (a.) :

1146 PART IV—TITLE I—DIVISION IV.

Crimes and offenses against the persons of citizens or individuals.

§4357. (4291.) (4256.) . Assault. An assault is an attempt to commit §§4694, 4477. a violent injury on the person of another.

What was no excuse for an assault: 28 Ga., 78. Three indicted for assault and bat-

tery and one found guilty of that, and the others of assault only : 33 Ga., 132. Evi- dence not justifying a request to charge as to an assault: 22 Ga., 243. A proper

charge as to an alleged assault : 46 Ga., 456. Where verdict for an assault maintained under indictment for assault with intent to murder: 55 Ga., 319. But not an attempt

to make an assault : 53 Ga., 205. Under indictment for stabbing could convict for an assault: 56 Ga., 408. Rightful refusal to charge (under the evidence) that the jury

: could find guilty only of an assault : 56 Ga., 84. Where the law of opprobrious words

as justifying an assault, was not involved : 58 Ga., 212. To shoot at another at a dis- is if tance of twenty steps an assault even the gun loaded with powder only : 61 Ga., 582,

Cr. ; 2 Bish. lb., 2 Whart, Law, §1241 £48 ; 3 Gr. Ev., §58; 2 Bish. Cr. Proa, §51; 1 Arch. Cr. Pr. and PI., 907; 1 Hawley's Cr. Rep., 46; 20 Am. R., 352, n ; 18/469; notes to Code, §2969. §4358. (4292.) (4257.) Punishment. A bare assault shall be punished [as prescribed in section 4310 of this Code.] (a.)

§4359. (4293.) (4258.) Assault idth intent to murder ; penitentiary two to Act of 1840, ten years. An assault with intent to murder, by using any weapon likely C. p. 788 - to produce death, shall be punished by imprisonment and labor in the penitentiary for a term not less than two years nor longer than ten years. May be found under an indictment, guilty of an assault and battery: 12 Ga., 351. Evidence sufficient if death ensued to make it murder, will sustain the finding of

guilty of an assault with intent to murder: 21 Ga., 221 ; 53/325; 57/108; 52/88-90;

51/402 ; 55/169 ; but see 51 Ga., 164. Not where evidence would make out manslaughter

if death ensued : 46 Ga., 159. And where the Court should charge on manslaughter

and justifiable homicide : 54 Ga.. 157. What evidence admissible where deceased at- (l

tempted the seduction of defendant's wife : 29 Ga., 723-4. May be committed without the use of weapons likely to produce death: 32 Ga., 672. Allegation that defendant 5 beat and wounded another with a pistol, being a weapon likely to produce death: 41

Ga., 155. Jury remanded to perfect their verdict was not error : 46 Ga.. 648. Compe- tent for the State to show that the person assaulted was known by the name in the indictment, and also by another not alleged in the indictment: 46 Ga., 269. A verdict of conviction under this section not against the evidence, and refusal of a new trial not

interfered with : 47 Ga., 589. Where the evidence was insufficient : 58 Ga., 563. Where

conviction for shooting with a pistol : 39 Ga., 51-52. What no excuse for: 28 Ga., 78. Where the Court charged the several grades of homicide so far as facts admitted of it •35 Ga., 242. Under single count for assault with intent to murder by shooting, pris-

oner may be convicted of shooting at another : 54 Ga. , 660 Verdict for an assault main-

tained under indictment under this section : 55 Ga., 319. Sufficient identity of the prisoner, and no new trial because of evidence of hearing another say she did the act: 56 Ga., 363-4; 53/326. Indictment for assault with intent to murder with a pocket

knife, not alleging use made of such weapon, not good in arrest of judgment : 56 Ga., 583. Sayings of one party as part of the res gestie, and State need not elect as to with

which weapon the crime was committed : 59 Ga., 401. Sufficient evidence of the deadly

character of the weapon and the intent to murder : 59 Ga., 638. Three persons jointly indicted and found guilty, a new trial granted as to one, and verdict stands as to others :. •51 Ga., 164. Where the Court should have charged the law as to the fears of a reason-

: able man : 51 Ga., 429. New testimony as to a third person having struck the blow 52 Ga., 509. Counts for shooting at another with a pistol, and for assault with intent to murder by shooting at another with a pistol, maybe joined in same indictment, and

.a general verdict would be for highest grade charged : 52 Ga., 563. Evidence of hearing one cry, "Kill him!" "Kill him!" not admissible: 53 Ga., 641. Under indictment

underpins section may find guilty of an assault : 53 Ga., 205. Where voluntary drunk-

enness would not excuse : 55 Ga., 31. Several charged in indictment, what evidence

' .admissible on trial of one of them : 60 Ga., 284.

2 Whart. Cr. Law, §1264; 1 Arch. Cr. Pr. and PL, 888; 2 Bish. Cr. Proc, §643; 1 257 Snapping gun with Hawley's Cr. Rep., 246, 249, 597 ; 28 Am. R., 392; 31/1, ; 36/8.

no cap on : 6 Am. R., 602.

§4360. (4294.) (4259.) Assault ivith intent to rob. An assault with intent to rob is where any person or persons shall, with any offensive or dangerous weapon or instrument, unlawfully and maliciously assault •another, or shall, by menaces, or in and by any forcible or violent manner, demand any money, goods or chattels of or from any other person or persons, with intent to commit robbery upon such person or persons. §4361. (4295.) (4260.) Penitentiary tivo to four years. A person convicted of an assault with intent to rob shall be punished by confine- PART IV.— TITLE I.—DIVISION IV. 1147

Crimes and offenses against the persons of citizens or individuals. merit and labor in the penitentiary for a term not less than two years nor more than four years. §4362. (4296.) (4261.) Assault to injure clothes, punishment. An assault (a) Acts oi 6, p ' with an intent to spoil or injure clothes or garments, is where any per-jfjf" son or persons shall, at any time, willfully and maliciously assault any person or persons, with an intent to tear, spoil, cut, burn, or deface, and shall tear, spoil, cut, burn, or deface the garments or clothes of such person or persons; and every such offender, being thereof convicted, shall be punished [as prescribed in section 4310 of this Code.] (a.)

§4363. (4297.) (4262.) Battery. Battery is the unlawful beating of §4694. another, and shall be punished [as prescribed in section 4310 of this Code.] (a.) On indictment for assault with intent to niurder may be found guilty of an assault and battery alleged in the same : 12 Ga.. 350. Also of an assault only : 55 Ga., 319-320.

What is no justification of the offense : 12 Ga., 461. Two assaults and batteries on the same day, may try for either but not for both at the same time : 17 Ga., 356. May find guilty of an assault and battery on an indictment for stabbing : 25 Ga., 396. Three indicted for assault and battery, and one guilty only, and the other two of an assault only : 33 Ga., 132. Evidence sufficient to convict of an assault and battery ; a proper charge of the Court : 46 Ga., 455-6 ; 55/600. Assault and battery on his own child with a saw : 54 Ga., 281-2. Guilty of this offense in putting the arms around another man's wife, without just cause or excuse : 60 Ga., 509.

2 Bish. Cr. Law, §85; 2 Bish. Cr. Proa. £98 ; 3 Gr. Ev.. §66; 2 Arch. Cr. Pr. and PL. 1857. In retaking stolen property: 1 Hawley's Cr. Rep., 57. Fighting by mutual agreement : 1 Hawley's Cr. Rep., 59. Negligent driving : 19 Am. R., 362; see notes to $2969 of Code. §4364. (4298.) (4263.) False imprisonment. False imprisonment is a vio- §?2990, 3850, lation of the personal liberty of a person or citizen, and consists in confinement or detention of such person without sufficient legal authority. When agent appointed by the Governor of this State to receive a fugitive under a requisition was not guilty of this offense : 42 Ga., 358. But if arrested by a private person what steps to be taken, and as to the county where the offense is to be tried : 63 Ga., 513.

2 Bish. Cr. Law, §767 ; 2 Bish. Cr. Proa, §365 ; 1 Arch. Cr. Pr. and PL, 946.

§4365. (4299.) (4264.) False imprisonment, fine, etc. Any person who shall arrest, confine or detain a person or citizen, Avithout process, warrant, or legal authority to justify it, shall be punished [as prescribed in section 4310 of this Code.] (a.) §4366. (4300.) (4265.) When tinder color of legal process. The arrest,, confinement or detention of a person or citizen, by the warrant, man- date, or process of a magistrate, being manifestly illegal, and showing malice and oppression, the said magistrate shall be removed from office; and such magistrate, and all and every person and persons knowingly and maliciously concerned therein, shall be punished by fine and imprisonment in the common jail of the county, or imprisonment and labor in the penitentiary for any time not less than one nor more than two years, at the discretion of the Court. Where a Justice of the Peace was charged with being guilty of this offense, under legal proceedings: 48 Ga., 353-4. Section cited and construed: 63 Ga., 514.

§4367. (4301.) (4266.) Kidnapping) penitentiary four to seven years. Kid- napping is the forcible abduction or stealing away of any person without lawful authority, or warrant, from this State, or any county thereof,, and sending or conveying such person beyond the limits of said State or county against his or her will. Each and every person who shall be guilty of this crime, and be thereof lawfully convicted, shall be punished by imprisonment and labor in the penitentiary for any time not .less than four years nor longer than seven years. 2 Whart. Cr. Law, §1202; 2 Bish. lb., §770; 2 Bish. Cr. Proa, §688; 1 Arch. Cr. Pr. and PL, 984. §4368. (4302.) (4267.) Inveigling children, punishment. If any person shall forcibly, maliciously, or fraudulently lead, take, or carry away, or :

1148 PART IV.—TITLE I.—DIVISION IV.

Crimes and offenses against the persons of citizens or individuals.

Acts of 1880 decoy or entice away,* any child under the age of eighteen years, from -l, p. 74- j tg parent or guardian, or against his, her, or their will or wills, and without his, her or their consent or consents, such person so offending, shall be indicted for kidnapping, and on conviction shall be punished by imprisonment and labor in the penitentiary for any time not less than four nor more than seven years.

Defendant's belief as to age of child: 1 Hawley's Crim. Rep., 1. §4369. (4303.) (4268.) Stabbing, punishment. Any person who shall be Act of 1847, guilty of the act of stabbing another, except in his own defense,, or P (a) Acts'of other circumstances of justification, with a sword, dirk, or knife, or 1865-6, p. other instrument of the like kind, shall, on conviction, be punished [as

prescribed in section 4310 of this Code :] (a.) Provided, always, that if such stabbing shall produce death, the offender shall be guilty of murder or manslaughter, according to the facts and circumstances of the case; or if such stabbing shall not produce death, and the facts and circumstances show that it was the intention of the person stabbing to commit the crime of murder, then and in such case, the offender shall be guilty of the offense of an assault with intent to commit murder.

Self-defense as a plea of justification of : 15 Ga., 117. Manslaughter, when indictment

for murder stabbing : 24 Ga., 282. the stabbing by When was not in self-defense : 36 Ga.,91; 31/411. May find guilty of an assault and battery under an indictment for

stabbing : 25 Ga., 396. Verdict generally of guilty, where sufficient indictment, on one count for assault with intent to murder, and the other for stabbing, means guilty of

the highest offense charged : 43 Ga., 218. A proper charge refused, and what sayings

of the prisoner the day after were properly admitted : 51 Ga., 429. What entrances of

the knife sufficient to constitute, and opprobrious words did not justify : 56 Ga., 409. Stabbing admitted on the trial of assault with intent to murder, and onus on the defendant to rebut the presumption of malice: 61 Ga., 43. 1 Arch. Cr. Pr. and PL, 869; 1 Bish. Cr. Law, §330.

» §4370. (4304.) (4269.) Shooting at another, punishment. Any person Acts of 1855 who shall be guilty of the offense of shooting at another, except in his defense, or of justification Acts ofi878 own under circumstances according to the -9, p. 63. principles of this Code, with a gun, pistol, or other instrument of the like kind, shall be punished by a fine not exceeding one thousand dollars, or imprisonment in the common jail not less than twelve months, or both, or confinement in the penitentiary not less than one nor more than four years, in the discretion of the Court.

Whether the pistol was loaded with ball was not an issuable fact on the trial : 26 Ga., '47 611. As to indictment for murder by shooting, stating this is not necessary : Ga.,

524. Material matter whether the gun was loaded and how loaded : 28 Ga., 395; also 64 Ga., 450. If the killing would be justifiable, the failure will not subject the party

to the penalty for shooting at another under Act of 1856 : 29 Ga., 724. Shooting at an officer, and proper conviction under a legal charge of the Court: 30 Ga., 427. Also

where irrelevant testimony excluded : 49 Ga., 306. Shooting another with a pistol the

law presumes malice : 39 Ga., 31. New trial for expression of opinion on the evidence

by the Judge : 45 Ga., 477. Where the verdict was not too uncertain : 51 Ga., 144. On single count for assault with intent to murder, may convict of the lesser offense of

shooting at another : 54 Ga., 660. Count for assault with intent to murder by snooting with a pistol and for shooting at another with a pistol, joined in the same indictment 52 Ga., 565. And general verdiet of guilty under such counts, means of the highest

grade of crime charged : 55 Ga., 131. Only shooting in self-defense justifiable, and

when not in self-defense : 58 Ga., 314. Proper conviction, and what newly discovered

evidence ground for new trial : 60 Ga., 210. It is an assault to shoot at another with a .gun, at twenty steps, even if powder only in it: 61 Ga., 582. */^*£>. Seduction, penalty. If any person shall, per- /pr

: son, on conviction, shall be punished by imprisonment and labor in the penitentiary for a term not less than two nor longer than twenty years.

-The words " out of the limits of this State, or any county thereof" stricken out of this section &1 fey Act of 1876, p. 39. .

PART IV.—TITLE I.—DIVISION V. 1149

Crimes and offenses against the habitations of persons.

The prosecution may be stopped at any time by the marriage of the parties, or a bona fide and continuing offer to marry on the part of the seducer.

New trial for material newly discovered evidence, not cumulative : 34 Ga., 4-5. It is for the jury to find whether the killing of the seducer of a wife comes within the terms of section 4334 of the Code : 29 Ga., 724. "Other false and fraudulent means" by a

married man : 48 Ga., 192. Under indictment under this section may find guilty of

fornication : 54 Ga., 389. Consent to intercourse pending engagement to marry : 58

Ga., 328. Seduction by a policeman under promise to marry : 59 Ga., 319. Section •cited: 60 Ga., 383.

2 Whart. Cr. Law, JJ2670 ; 2 Bish. lb., §1159; 1 Hawley's Cr. Rep., 660; 2/75, 592-4. See general note after #3755, and note to §3009.

§4372. (4306.) (4271.) Using abusive or obscene language. Any person (a) Acts of b' G p- who shall, without provocation, use to or of another, and in his pres- \^ ' •ence, opprobrious words, or abusive language tending to cause a breach Actsofi875, of the peace, or who shall in like manner, use obscene and vulgar Ian- J^Acts of

1872 9 - guage in the presence of a female, shall be guilty of a misdemeanor, and > p- on conviction shall be [punished as prescribed in section 4310 of this ^p^2' Code.] (a.) [Provided, that no Court in this State shall have jurisdic- , -/ /~. tionto inquire into the offenses set forth in this section, except, * upon//

,. presentment made, or indictment found, by the grand jury of the county . i in which the offense has been committed.] (b.)

No proof of having talked about defendant's wife, so as to justify an assault and bat-

tery : 12 Ga., 461. Proper charge by the Court as to what insolence by words justifies an assault : 28 Ga., 193-4. Asking a female to go to bed with him, indictable under this section : 41 Ga., 278. Only where the opprobrious words used in presence of the party, and resented at once : 41 Ga., 527. Obscene language in the hearing, or used in the

presence of a female : 48 Ga., 3.11. Where burden on defendant to show provocation

for the use of obscene language, as to drunkenness : 53 Ga., 365. Opprobrious words will not justify stabbing: 56 Ga., 409. Law of opprobrious words not involved: 58 Ga.,

212. Where opprobrious words did not justify a deadly combat : o9 Ga., 391-392.

§4373. (4307.) Abandonment of children. [If any father shall willfully g) Acts of. and voluntarily abandon his child, or children, leaving them in a de- Acts of 1878 pendent or destitute condition, such father shall be guilty of a mis-"9, p - 66 - demeanor, and on conviction thereof shall be punished as prescribed in section 4310 of this Code : Provided, that the wife shall be a competent witness in all such cases as provided for in this section, to testify for or against her husband.] (b.)

FIFTH DIVISION. CRIMES AND OFFENSES AGAINST THE HABITATIONS OF PERSONS.

Section. Section. 4374. Crimes against habitations. 4381. Burning, what is. 4375. Arson. 4382. Setting fire, what is. 4376. In a town. 4383. Burning railroad bridge. 4377. Elsewhere. 4384. Arson, day and night. 4377. (a.) An unoccupied dwelling, how pun- 4385. Causing death. ished. 4386. Burglary. 4378. Attempt. 4387. In the dav. 4379. Out-house not in town. 4388. In the night. 4380. Setting fire to.

§4374. (4308.) (4272 ) Crimes against habitations. Crimes against the

habitations of individuals shall consist of : 1. Arson. 2. Burglary. ,

§4375. (4309.) (4273.) Arson. Arson is the malicious and willful /FT* a/* burning of the house or out-house of another. -*5 '{ff&C/t * A , Evidence of defendant's track on the trial for : 17 Ga., 130. Where it appeared on /gj/ / o £. % the face of the indictment that the offense was barred by the statute of limitations : 4 /Y*r Ga., 335. Citizens of the county competent jurors on the trial of persons for burning

of a jail : 29 Ga., 105. When no positive evidence of the arson : 37 Ga., 194. Accessory

*The words " the Superior Court" stricken from this section by Act of 1875, p. 25. ;

1150 PART IV.—TITLE I.—DIVISION V.

Crimes and offenses against the habitations of persons.

before the fact in arson, not generally tried until the conviction of the principal felon i 46 Ga., 298.

2 Whart. Cr. Bish. lb., ; Law, §1658 ; 2 3 Gr. Ev., §38 ; §51 2 Bish. Cr. Proc, §31 ; 1 Arch. Cr. Pr. and PL, 1171; 22 Am. R., 569; 17/3. "House": 22 Am. D., 141-151, n.

Husband burning wife's house not arson : 12 Am. R., 302.

§4376. (4310.) (4274.) Punishment of arson. The willful and mali- _ ce) Acts of cious burning, or setting fire to, or attempting to burn, a house in a. 1866, 150. p. city^ town or village, whether the house be the property of the perpe- Actsof 1876, trator or of another, shall be punished with death ; but the punishment may be commuted in conformity with the provisions of section 4323 of the Code. " What meant by the attempting to burn a house" under this section : 53 Ga., 34.

Where circumstantial evidence was not sufficient to convict : 57 Ga., 482-3.

§4377. (4311.) (4275.) Elsewhere, penitentiary five to twenty years. The (d) Acts of willful and malicious burning of [an occupied] (d) dwelling-house of 1865-6, p. another on a farm or plantation, or elsewhere, shall be punished [with death] (d), but the punishment may be commuted in conformity with the provisions of section 4323 of this Code.

New trial granted where evidence conflicting as to character of the dwelling-house

alleged to have been burned : 4 Ga., 335. Occupation of the dwelling-house cannot be " shown by inference : 47 Ga., 572, 583. When a house is occupied," possession of some of the goods stolen from the burnt house: 48 Ga., 117. Verdict of guilty, with recom-

mendation to the mercy of the Court was too uncertain a verdict : 49 Ga., 451. Con- spiracy to burn: 52 Ga., 398.

§4377. (a.) Burning unoccupied dwelling, how punished. The willful Acts of 1874, and malicious burning of an unoccupied dwelling-house of another, on 2L p- a farm or plantation, or elsewhere (not in a city), shall be punished by imprisonment and labor in the penitentiary for a term not less than. five nor longer than twenty years. §4378. (4312.) (4276.) Attempt Setting fire to the dwelling-house of another with intent to burn the same, on a farm or plantation or elsewhere (not in a city, town or village), shall be punished by imprisonment and labor in the penitentiary for a term not less than three years nor longer than seven years. §4379. (4313.) (4277.) Burning out-house. The willful and malicious Acts of 1878 burning of an out-house of another, such as a barn, stable, gin-house,, -9, p. 6i. or any ther house (except the dwelling-house) on a farm or plantation, or elsewhere (not in a city, town or village), shall be punished by imprisonment and labor in the penitentiary for any term not less than three years nor more than fifteen years.

Punishment for burning by night an out-house, not in a city, town, or village: 17 Ga., 130. Confessions of guilt without corroboration of the burning of the gin-house was insufficient: 43 Ga., 256. Conspiracy to burn: 52 Ga., 398. Willful and mali-

cious burning of a country church indictable under this section : 61 Ga., 66. See also as to the distinction between the offense and punishment of the offense under this sec-

tion : 64 Ga., 607.

§4380. (4314.) (4278.) Setting fire to out-house. Setting fire to an out- house of another, as described in the preceding section, shall be pun-

, ished by imprisonment and labor in the penitentiary for any term not less than one year nor more than three years. §4381. (4315.) (4279.) Burning defined. The crime of burning shall be complete where the house is consumed or generally injured.

Defined: 53 Ga., 34.

§4382. (4316.) (4280.) Setting fire defined. The offense of setting fire to a house shall be complete when any attempt is made to burn it, though no material injury is the consequence. §4383> (4317.) Burning railroad bridge. [The willful or malicious (a) Acts of burning, or attempting to burn, any railroad bridge within this State, i86i, p. 69. snaii De deemed and adjudged arson, and shall be punished with death PART IV.—TITLE L—DIVISION IV. 1151

Crimes and offenses against ihe habitations of persons. but the punishment may be commuted in conformity with section 4323 of this Code.] (a.) §4384. (4318.) (4281.) Arson in day or night. Arson in the day-time (except in a city, town or village,) shall be punished by a shorter period of imprisonment and labor than arson committed in the night.

This section directory merely to the Judge as to the number of years : 41 Ga., 482.

Conviction with sufficient evidence of arson in the night-time : 51 Ga., 613.

§4385. (4319.) (4282.) Arson causing death. Arson which produces (b) Acts of

1866 p- 1>() ' the death of any person, shall be punished by the death of the person ' or persons committing the arson; [but the punishment may b3 commuted in conformity with the provisions of section 4323 of this Code.] (b.)

§4386. (4320. ) (4283. ) Burglary defined. [Burglary is the breaking (ai Acts of 6 and entering into the dwelling, mansion, or store-house, or other place i^ '!^' of business of another, where valuable goods, wares, produce, or any other article of value are contained or stored, with intent to commit a felony or larceny. All out-houses contiguous to or within the curtilage or protection of the mansion or dwelling-house, shall be considered as parts of the same. . A hired room or appartment in a public tavern, inn, or boarding-house, shall be considered as the dwelling-house of the person or persons occupying or hiring the same.*] (a.)

Defined : 46 Ga , 322. When conviction of burglary, a plea in bar on the trial for the robbery: 15 Ga., 264. Right of owner of a house to shoot a burglar: 22 Ga., 479.

Indictment for, should specify the felony defendant intended to commit : 24 Ga., 420.

What is sufficient evidence of property or ownership : 38 Ga., 165. Erroneous charge of the Court in the trial of, and as to accessories: 42 Ga., 223-5. Maybe committed in a house, the place of business of another: 48 Ga., 505. Entering through the open door, offense not made out by showing defendant unbolted the door to get out : 51 Ga., 285-6: Uncertainty as to the breaking and identity of the accused; new trial: 52 Ga., 580. Whether there was an intention to commit a larceny in the entering of a dwelling-house is for the jury to determine: 54 Ga., 106. A mill-house: 55 Ga., 562. Pos- session of goods stolen from the house, accounted for, with evidence of character, suf-

ficient to acquit : 56 Ga., 28. Sufficient evidence of burglary at night: 53 Ga., 143-4, 252; 56/545,687. Where there should not have been a verdict of guilty: 56 Ga., 314.

Indictment without sufficient allegations as to breaking into a theatre : 56 Ga., 477. A gear-house within the protection of the dwelling-house : 60 Ga., 358. A proper instruction of the Court under an indictment for burglary in the night-time: 46 Ga., 212. On trial for burglary in the night, the State should show that fact by positive or satis-

factory evidence : 53 Ga., 567. Sufficient indictment for, and evidence of burglary in the night-time: 58 Ga., 79; 59/457; 56/686; 60/445, 358; 62/663; 61/311. Also as to

burglary in the day-time : 59 Ga., 307-8. Indictment for burglary should specify whether in the day or night, but is no cause for arresting the judgment after verdict

finding burglary in the day-time : 63 Ga., 141. Where the indictment should have

charged that the house was the husband's : 63 Ga., 307. 2 Whart. Cr. Law, §1531; 2 Bish. lb., §99: 2 Bish. Cr. Proa, §128; 3 Gr. Ev., §74; 2 Arch. Cr. Pr. and PI., 1068; 1 Hawlej^'s Cr. Rep., 366; 2/27. "House": 22 Am. D., 144-151, n. Entering through chimney is a breaking: 1 Hawley's Cr. Rep., 362. Rais-

ing window sash partly open : 7 Am. R., 556.

§4387. (4321.) (4284.) Repealed by Act of 1878-9, p. 65. §4388. (4322.) (4285.) Burglary, how punished. Burglary shall be Actsofi858, punished by imprisonment in the penitentiary for any time not fl p\ Jcta of less than one year, nor longer than twenty years.] (a.) 1x68, pp. k», 17. Punishment discretionary with the Court, and ten years was not too long: 56 Acts of 1878 -9 e5- Ga., 545. . P-

-The words " burglary may be committed in the day or night" stricken out of this section by Act of 1878-9, p. 65.

1152 PART IV.—TITLE I.—DIVISION VI.

Crimes and. offenses relative to property.

%~ >/qsr**^ SIXTH DIVISION. o£tL^*l OF CRIMES AND OFFENSES RELATIVE TO PROPERTY.

Section. Section. 4889. Robbery 1419. (a.) Penalty for stealing baled cotton. 4390. By force. 4420. Seizures by pretended Gov't agents. 4391. By fear. 4421. Public or bank offices. 4392. Larceny. 4422. Bailee, fraudulently converting. 4393. Simple larceny. 4123. Clerks, agents, etc. 4394. Of horse. 4424. Any other agent. 4395 Indictment. 4425. Withholding dues to the State. 4396. Punishment. 44-5. (a.) Penalty for using State's money by 4*97. Of cattle. officers. 4398. Indictment. 4425. (b.) For making interest on State's 4899. Punishment. money. 4400. Of hogs. 4426. Violating bank charter. 4401. Punishment. 4427. Presumption against officers. 4402. Other animals. 4428. Bank insolvency. 4403. Altering marks. 4428. (a.) Penalty for not paying depositors. 4404. Skinning cattle. 4429. Fraudulent transfers. 4405. Larceny of deeds, etc. 4430. Purchasing at discount. 4406. Of bonds, notes, etc. 4431. Fraudulent dividends. 4407. Of fixtures. 4432. Purchasing shares, etc. 4408. From distressed vessels. 4433. Unlawful mining. 4409. Other larcenies. 4434. Erecting machinery. 4410. Larceny from the person. 4435. Embezzling county funds. 4411. Penitentiary. 4435. (a.) Penalty for use of public funds for 4412. Secret taking. interest. * 4413. Larceny from house. 4436. Fraudulent levies. 4414. Punishment. 4437. Intruding on railroad. 4415. Entering with intent. 4438. Obstructing lailroad, etc. 4416. Breaking with intent. 4439. Injuring telegraph. 4417. Breaking and entering. 4440. Act of trespass indictable. 4418. Public buildings. 4441. Illegal hunting. 4419. Hut. tent, etc.

§4389. (4323.) (4286.) Robbery defined. Robbery is the wrongful, fraudulent and violent taking of money, goods or chattels, from the person of another by force or intimidation, without the consent of the owner.

Defined, and as to the two grades being joined in the same indictment : 12 Ga., 314.

Plea of former conviction of burglary as a defense to indictment for robbery : 15 Ga., 261; 14/8. Where all the participants in breaking jail were guilty of robbing the jailer: 32 Ga., 658. Indictment should charge the money was taken from the person of another: 39 Ga., 583. Where corroboration of accomplice's testimony was not suffi-

cient : 52 Ga., 106. Newly discovered evidence as ground of new trial on conviction of

robbery : 54 Ga., 564. Indictment with count for assault and battery and robbery

was demurrable ; 57 Ga., 66. Two verdicts where two indicted for robbery, one guilty

and the other not : 59 Ga., 84-7. Force is what distinguishes robbery from larceny: Fanning vs. the State, Pamphlt., September term, 1880, p. 39.

2 Whart. Cr. Law, §1695; 2Bish. lb., §1108; 2 Bish. Cr. Proc, §1001 ; 2 Arch. Cr. Pr. and PL, 1287; 3 Gr. Ev., £223; 10 Am. P., 398; 20/586; 21/175.

§4390. (4324.) (4287.) Robbery by force. Kobbery by open force or Actsof 1858, violence, shall be punished by imprisonment and labor in the peniten- p. 98 tiary for any time not less than four years nor longer than twenty years. §4391. (4325.) (4288.) Robbery by intimidation. Robbery by intimidation, or without using force and violence, shall be punished'by imprisonment and labor in jpejaftentiayy for any time not less than ^^ | two years nor longer than^^y^ars.Vf^- /» A £< or Larceny, or theft, as contra- , §4392. (4326.) (4289.) Larceny theft. g4488 distinguished from robbery by violence, force, or intimidation, shall consist of: 1. Simple theft; or larceny. 2. Theft or larceny from the person. 3. Theft or larceny from the house. 4. Theft or larceny after a trust or confidence has been delegated or reposed.

Wh'at sufficient evidence to maintain allegation as to property in an indictment 1 Ga., 563.. Where might find, without a special count, an attempt at a simple larceny 10 Ga,, 422. Evidence of, and detection of strategem: 11 Ga., 123. Where sayings of

one accused of larceny admissible for him : 28 Ga., 254. Also when admissible against

him : 29 Ga 430. Although the crime complete in two persons, a third may be prin-

cipal : 25 Ga., 515. What is evidence of an attempt to commit this crime, and in what

county offense is complete : 26 Ga., 493-4. New trial for newly discovered evidence : 33 Ga.. 281. Sayings to the thief at the time of the larceny, admissible against acces-

sory after the fact : 43 Ga., 197. Larceny of bank bills from the person : 22 Ga., 499. .

PART IV.—TITLE L—DIVISION VI. 1153

Crimes and offenses relative to property.

•Vhere offers of settlement were not admissible against the defendant: 40 Ga., 520. Jot sufficient evidence to convict of larceny from the person: 51 Ga., 301-3. On in- lictment for larceny from the person as principal, there can be no conviction as acces- ory after the fact : 52 Ga., 287. Stolen goods found in possession as evidence of bur-

;lary : 56 Ga., 28. Difference between simple larceny and larceny from the person:

4 Ga., 184. What necessary in an indictment for larceny of money from the person : Vilson vs. State, Pamphlt., February, 1881, p. 31. General Note on Larceny.— 2 Whart. Cr. Law, #1750; 2 Bish. lb., #770; 2 Bish.

0/702; 33/526; 30/214; 31/143; 34/732. Fraudulently retaining money paid by mis-

Ike is : 34 Am. R., 500. lief using to give change due from money received is : 33 Am. I, 455.

§4393. (4327.) (4290.) Simple larceny. Simple theft, or larceny, is the wrongful and fraudulent taking and carrying away, by any person, of he personal goods of another, with intent to steal the same. The thief aay be indicted in any county in which he may carry the goods stolen.

But a trial in one county a bar to trial in every other county: 14 Ga., 422. Value f property in indictment for simple larceny should be alleged and proven: 40 Ga., 20. Distinction between simple larceny and larceny from the house: 53 Ga., 240. yhen should be an indictment for larceny from the person, and not for simple larceny : lGa.,185. Larceny attempted to be obtained by toe artifice and contrivance of the wner : 55 Ga., 302. Sufficient evidence of, and as to asportation: 60 Ga., 143, 368. imple larceny from a vessel : 60 Ga., 261. §4394. (4328.) (4291.) Horsestealing. Horse stealing shall be denom- inated simple larceny, and the term "horse" shall include mule and ss, and each animal of both sexes, and without regard. to the altera- ions which may be made by artificial means.

Indictment sufficient and bill of sale of a horse inadmissible without proof of its secution: 44 Ga., 263. Not sufficient evidence of larceny of a horse : 48 Ga., 326-7.

§4395. (4329.) (4292.) The offense shall, in all cases, be charged as imple larceny, but the indictment shall designate the nature, charac- 3r, and sex of the animal, and give some other description by which m identity may be ascertained.

What sufficient description : 44 Ga., 263.

§4396. (4330.) (4293.) Punishment for horse stealing. [The stealing of (a) Acts of

1868, 17 - horse or mule shall be punished by confinement and labor in the p - enitentiary for any time not less than four years, nor longer than sventy years.] (a.) §4397." (4331.) (4294.) Cattle stealing. Cattle stealing shall be denom- lated simple larceny, and be so charged in the indictment, and shall iclude the theft or larceny of any horned animal or animals, and all uimals having the hoof cloven, except hogs.

By mistake, and an offer to pay for the steer : 34 Ga., 208. Conviction of an attempt nder an indictment charging the stealing of cattle : 58 Ga., 200. New trial granted, n proper charge : 58 Ga., 554. Refusal of new trial where the conviction was under ifficient evidence : 50 Ga., 63-143. Asportation : 60 Ga., 143, 368.

§4398. (4332.) (4295.) Indictment for. The indictment shall suffi- iently describe the animal or animals falling under the description of ittle in the preceding section, so that it or they may be ascertained and lentified by the owner or owners thereof. §4399. (4333.) (4296.) Punishment for cattle stealing. [The stealing of (a> Acts of

1S68 17 - ne or more animals falling under the above description of cattle, shall - p e punished by imprisonment in the penitentiary not less than two, or longer than four years, unless the jury tryifi^ the case shall recom- lend the prisoner to merc}^ ; in that event he shall be punished as rescribed in section 4310 of this Code.] (a.)

As to the right of the jury to mitigate the punishment by recommending to mercy :

* Ga., 401, 203. 1154 PART IV.—TITLE I.—DIVISION VI.

Crimes and offenses relative to property.

§4400. (4334.) (4297.) Hog stealing. The stealing of a hog or hogs is simple larceny, and shall be so charged in the indictment, and the hog or hogs so described that it or they may be identified by the owner.

Not sufficient evidence to convict of: 29 Ga., 75; 32/424. Some value should be alleged in the indictment: 40 Ga., 229. Entirely circumstantial evidence should con- nect the criminal with the act: 26 Ga., 633. When sayings of a party are admissible in

evidence for himself : 28 Ga., 254. Where there was a reasonable doubt, and there

should have been no conviction : 24 Ga., 427. Cannot be settled under 4706 of the Code: 44 Ga.. 300. Sufficient description in an indictment: 44 Ga., 300; 57/28,367.

Proof of stealing one hog under an indictment for two sufficient for conviction : 57 Ga., 171. Must prove the description as set forth in the indictment: 64 Ga., 449. Allega- - tion and proof sufficiently agreeing : 64 Ga , 443. Punishment. of Actsofi875 §4401. (4335.) (4298.) The punishment hog stealing

26 ' p. fshall be as rprescribed in section 4399 of this Code.]J fa.) (a) Acts of " 1865-6, p. As to the jury recommending the defendant to mercy, Act of 1875, placing punish- 2S3. ment for, on the same footing as in section 4399: 59 Ga., 635 ; 61/45. §4402. (4336.) (4299.) Other animals. All other domestic animals which are fit for food, and also a dog, may be subjects of simple larceny

• and any person or persons who shall steal any such animal or animals [shall be punished as prescribed in section 4310 of this Code.] (a). §4403. (4337.) (4300.) Altering brands or marks. If any person or persons shall mark and brand, or mark or brand, any animal or animals before mentioned, or alter or change the mark or marks, or brand or brands, of any such animal, being the property of another, with an intention to claim or appropriate the same to his or her own use, or to prevent identification by the true owner or owners thereof, the person or persons so offending shall be guilty of a misdemeanor, and, on conviction, shall suffer the same punishment as is inflicted for the theft or larceny of said animal or animals. Where there is reasonable doubt of guilt there should be no conviction: 24 Ga. 427; 30/869. §4404. (4338.) Skinning cattle. [It shall be unlawful for any person

(b) Acts of in this State to skin any dead cow, or any other kind of stock, cattle, 6 4 P snee or g°ats, that do not belong to him, her, or them, without con- a ? 'f i865 P> -6, p. 233. sent of the owner of such stock, cattle, sheep, or goats, his agent or overseer, without accounting to the owner or owners thereof for the skin, when thereunto demanded; and in all such cases, when any person or persons shall have been engaged in skinning any cow, or other kind of stock, cattle, sheep, or goats, and shall refuse, on demand of the owner thereof, or his agent or overseer, to pay the reasonable value of the skin, he, she, or they shall be subject to indictment, and, upon conviction, shall be punished as prescribed in section 4310 of this Code.] (b.) §4405. (4339.) (4301.) Larceny of papers. If any person shall take and carry away any paper, document, deed, will, or other writing relating to real or personal estate, with an intention to impair, prevent, or render difficult the establishment of a title to real or personal estate, or mutilate, cancelburn or otherwise destroy said paper, document, deed, will or other writing, with the intention aforesaid, such person shall be guilty of simple larceny, and be punished by imprisonment and labor in the penitentiary for any time not less than one year nor longer than three years. §4406. (4340.) (4302.) Larceny of bonds, notes, etc.; penitentiary one to four years. If any person shall take and carry away any bond, note, bank bill, or due bill, or paper or papers, securing the payment of money or other valuable thing, or any receipt, acquittance, or paper or papers, operating as a discharge for the payment of money, or other thing belonging to another, with intent to steal the same, such person shall be guilty of simple larceny, and be punished by imprisonment PART IV.—TITLE L—DIVISION VI. 1155

Crimes and offenses relative to property.

,nd labor in the penitenliary^for, any. time not less tj,ian one yeaj>rtor +*~~*Zy^ onger than four years. ^^^^^^y^^/^^^^^T/^^^^^'

§4407. (4341.) (4303.) Fixtures. Theft or larceny may be committed (ai Acts of G p * I any thing or things which, in the language of the law, savors of the 233° ' ealty, or of any fixture or fixtures ; and the punishment shall be [as described in section 4310 of this Code] (a.) §4408. (4342.) (4304.) Plundering or stealing from wrecked or distressed essels. Plundering or stealing any article of value from a vessel in dis- ress, or from a wreck, or any other vessel, boat, or water-craft, within he jurisdictional limits of this State, is simple larceny, and shall be mnished by imprisonment and labor in tlie penitentiary for liny time yy /? /^? **** ** «^*£<^~- &s-*&^T '**-"--' £^+~^ io>less th^n one year nor longer& than fiyfe years. 1 : * r r*f. y j, tSU^

§4411. (4345.) (4309.) Punishment for larceny from person. The pun- Acts of i8~8 ~ 9 p ' 56 " shment for larceny from the person shall be as is prescribed in section ' 310 of the Code, except in those cases where the article, money or hing stolen, exceeds in value fifty dollars, then the punishment shall

•e imprisonment in the penitentiary for a term not less than two years, tor more than five years. §4412. (4346.) (4310.) What secret, sudden taking shall be larceny. Any ort of secret, sudden, or wrongful taking from the person with the in- ent described in section 4410 of this Code, without using intimidation I force and violence shall be within this class of larceny, though open ; ome small force be used by the thief to possess himself of the property : ^rovided, there be no resistance by the owner, or injury to his person, nd all the circumstances of the case show that the thing was taken, tot so much against as without the consent of the owner. §4413. (4347.) (4311.) Larceny from the house. Larceny from the touse is the breaking or entering any house with the intent to steal, r after breaking or entering said house, stealing therefrom any money, ;oods, chattels, wares, merchandise, or any thing or things of value whatever. Offense may be consummated where original entry not felonious, sufficient descrip- lon of money in an indictment : 10 Ga., 511. Recent possession of stolen property, un- of ccounted for, evidence of guilt: 24 Ga., 32: 62/179. Possession and occupancy a . ouse by a person as a dwelling, sufficient evidence of ownership: 25 Ga., 52. Snffi- ient allegations in the indictment for conviction: 33 Ga., 98. Crimes punished ac- ording to the law at the time of their commission: 35 3a., 225. Section cited: 46

ra., 215. Different grades of larceny from the house ; effect of Acts of 1866 and 1873: OGa., 260-1. Evidence must show stealing was from some house: 53 Ga., 248. Dis- inction between simple larceny and larceny from the house : 62 Ga., 170. What 1156 PART IV.—TITLE L—DIVISION VI.

Crimes and offenses relative to property.

building within the curtilage under the Act of 1872. demurrer sustained: 54 Ga., 219.

But see where from a cotton-house and no demurrer thereto : 58 Ga., 431-2. §4414. (4348.) (4312.) Larceny from the house, penalty. [Any person (a) Acts of who, by day or night, shall, in any dwelling-house, store, shop, ware- Acts om%, nou se, or any other building,* privately steal any goods, money, chat- p. 22. 'tels, wares, or merchandise, or any other article or thing, under the value of fifty dollars, shall be punished as prescribed in section 4310

of this Code ; and any person who, by day or night, shall, in any dwelling-house, store, shop, warehouse, or any other house or building,* privatel}7 steal any goods, money, chattels, wares, or merchandize, or any other article or thing, of the value of fifty dollars or more, shall be punished by imprisonment and labor in the penitentiary, for any time not less than one, nor longer than ten years.] (a.) Where the jury found guiltv under the indictment charging the value of the goods as fifty over dollars: 50 Ga., 258-9 ; 55/221 ; 60/89. 430. Indictment sufficient omitting the word " privately ": 60 Ga.. 430. Indictment which might have been held defective on special demurrer: 60 Ga., 89.

§4415. (4349.) (4313.) Punishment for entering with intent to steal.' Any erson entering a dwelling-house, store, shop, or warehouse, or any (a) Acts of P 1865-6, p. other house or building, with intent to steal, but who is detected and prevented from so doing, shall be punished [as prescribed by section 4310 of this Code.] (a.)

§4416. (4350. ) (4314.) Breaking with such intent. Any person breaking any dwelling-house, store, shop, or warehouse, or any other house or building, with intent to steal, but who is detected and prevented from effecting such intention, shall be punished as prescribed in section 4310 of this Code.

Section referred to and construed : 46 Ga., 215. §4417. (4351.) (4315.) Breaking and entering. Any person breaking and entering any house or building (other than a dwelling-house or its appurtenances), with intent to steal, but who is detected and prevented from carrying such intention into effect; or any person breaking or entering any such house or building, and stealing therefrom any money, goods, chatties, wares, or merchandise, or any other thing or article of value, shall be punished as prescribed in section 4310 of this Code. Word "or" in the fourth line of this section intended for "and": 50Ga., 261.*Where

the crime was punishable under this section : 58 Ga., 430-432. §4418. (4352.) (4316.) Public buildings included. Any house, building, or edifice, belonging to the State or a corporate body, or appropriated to public worship, or any other public purpose, shall be taken and considered as a house or building within which this class of larceny may be committed.

The Act of 1872 also modified the terms of this section :. 54 Ga., 221 ; but see 58 Ga., 432-3. Also Acts of 1877, p. 22.

§4419. (4353.) (4317.) Hut, tent, etc. Any person entering and steal-

officer of the United States, or any department thereof, shall seize,'detain, 1

* The words " within tlie curti'age," stricken from this section by Act of 1877, p. 22. PART IV.—TITLE L—DIVISION VI. 1157

Crimes and offenses relative to property.

or remove the property of any citizen or resident of this State; or, if (c) Acts of >c p ' any person shall claim to be an officer or agent of the United States, or5£ ' any department thereof, with authority to make said seizure, detention, or removal, and who shall not have such authority, such person, officer, or agent, so offending, shall, upon conviction, be punished by confinement and labor in the penitentiary not less than one year nor longer than ten years, or shall be punished as prescribed in section 4310 of this Code, at the discretion of the Court.] (c.)

§4421. (4355.) (4318.) Persons employed in public offices or banks stealing or embezzling papers or property. Any officer, servant, or other person, employed in any public department, station, or office of government, of this State, or any county, town, or city, of this State, or in any bank or

other corporate body in this State ; or any president, director, or stock- holder, of any bank or other corporate body in this State, who shall embezzle, steal, secrete, fraudulently take and carry away any money, gold or silver bullion, note or notes, bank bill or bills, bill or bills of exchange, warrant or warrants, bond or bonds, deed or deeds, draft or drafts, check or checks, security or securities for the payment of money, or delivery of goods or other things, lease, will, letter of attorney, or other sealed instrument, or any certificate or other public security of i, the State for the payment of money, or any receipt, acquittance, release, or discharge of any debt, suit, or other demand, or any transfer or assurance of money, stock, goods, chattels, or other property, or any day book, or other book of accounts, or any agreement or contract whatever, such person so offending shall, on conviction, be punished by imprisonment and labor in the penitentiary for any time not less than two years nor longer than seven years.

What evidence admissible, and what indictment sufficient as to description of bank bills on trial of bank officer for embezzlement: 10 Ga., 47. Against tax collector, evi-

dence : 53 Ga., 149-152. Where cashier of a branch office of a corporation incorporated

in Washington City, was not indictable under this section : 55 Ga., 236. See authorities cited under next section. Liability of directors and officers for conspiracy to defraud: Thomp. Off. Corp., 489; for embezzlement: 2 Arch. Cr. Pr. and PL, 1858. Liability of cashier for embezzlement: Thomp. Off. Corp., 492.

§4422. (4356.) (4319.) Any bailee fraudulently converting the goods or pro- £+*-r~*. ?-£- ceeds. If any factor, commission merchant, warehouse keeper, whar- /^^ /oq, finger, wagoner, stage driver, or other common carrier on land or water, ' ' * ' or any other bailee, with whom any money, bank bill or bills, note or notes, bill or bills of exchange, draft or drafts, check or checks, bond or bonds, or other security or order for the payment of money or other valuable thing, or any cotton, corn, or other produce, goods, wares, or merchandise, or any other thing or things of value, are or may be entrusted or deposited by any person, shall fraudulently convert the same or any part thereof, or the proceeds of any part thereof, to his or her own use, or otherwise dispose of the same, or any part thereof, without the consent of the owner or bailor, and to his or her injury, and without paying to such owner or bailor, on demand, the full value or market price thereof; or if, after a sale of any of the said articles, with the consent of the owner or bailor, such person shall, fraudulently and without the consent of the said owner or bailor, convert the proceeds thereof, or any part of the said proceeds, to his or her own use, and fail or refuse to pay the same over to such owner or bailor, on demand, every such person so offending, shall, on conviction, be punished by imprisonment and labor in the penitentiary for any time not less than two years nor longer than seven years.

Indictment sustained as to a bailee : 15 G a., 205-212. Where the indictment was not sufficient against an officer of the Western and Atlantic Railroad under tbis section : 50 Ga., 326. When an indictment under this section need not charge it was done without the owner's consent, etc. : 57 Ga., 367. There being no evidence of 1158 PART IV.—TITLE L—DIVISION VI.

Crimes and offenses relative to property.

bailee's receiving goods in Fulton county, no prosecution could be had there : 55 Ga., 298-301.

2 Wharf. Cr. Law, ?1905 ; 2 Bish. lb., ?326; 2 Bish. Cr. Proa, £314 ; 2 Arch. Cr. Pr.

and PL, 1337 ; 1 Hawley's Cr. Rep., 146, 150, 153. 157 ; 2/107-117 ; 33 Am. R, 344. This topic is treated in the books with co-related subjects under the title '•Embezzlement."

§4423. (4357.) (4320.) Clerks, agents, etc., fraudulently taking and converting goods entrusted to them. If any person, employed as a clerk, agent, or servant, or in any other character or capacity, in any store, warehouse, counting-room, exchange office, shop, or other place of trade, traffic, or exchange, where from the nature of the business or employment, it is necessary or usual to entrust to such person any goods, wares, or merchandise, cotton, corn, or other produce, money, notes, bills of exchange, bank notes, checks, drafts, orders for payment of money, or other valuable thing, or any other thing or article of value, shall fraudulently take and carry away, or convert to his own use, or otherwise dispose of any of the said goods, wares, or merchandise, cotton, corn or other produce, money, notes, bills of exchange, bank notes, checks, drafts, orders, or other thing or things of value, thus entrusted to him or committed to his charge, to the injury and without the consent of the owner thereof, or person thus entrusting him, such person so offending shall, on conviction, be punished by imprisonment and l labor in the penitentiary for any time not less than one year nor longer than five years. See authorities cited under previous section.

§4424. (4358.) (4321.) Any other agent so offending. If any person who (a) Acts of has been entrusted by another with any money, note or notes, bill or 1866, p-* 3- foiiig f exchange, bond or bonds, check or checks, draft or drafts, bank note or notes, order or orders for the payment of money, or other valuable article or thing, or any cotton, corn, or other produce, goods, wares, or merchandise, horse or horses, mule or mules, cattle, sheep,' goats, hogs, or other article or articles of value, for the purpose of applying the same for the use or benefit of the person to whom they belong, or the person delivering them, or any of them, or for the purpose of collecting money, or other thing due on any such note or notes, bill or bills of exchange, bond or bonds, check or checks, draft or drafts, bank note or notes, or order or orders, and paying the proceeds thereof over to the owner or other person so entrusting or delivering the same, or for the purpose of selling such cotton, corn, or other produce, goods, wares, or merchandise, horse or horses, mule or mules, cattle, sheep, goats, hogs, or other valuable article, and paying over the proceeds of such sale to the owner, or other person so entrusting or delivering the said article or articles, or any of them, or the money, or other thing arising from the sale or collection of them, [shall fraudulently convert the same, or any part thereof, or the proceeds of any part thereof,] (a.) to his or her own use, 1 or shall otherwise dispose of them, or any of them, to the injury, and without the consent of the owner, or other person so entrusting or delivering them, and without paying to such owner, or person entrusting or delivering the same, the full value or market price thereof, such person so offending shall, on conviction, be punished by imprisonment and labor in the penitentiary for any time not less than one year nor longer than five years. As to tbe requisites of an indictment and the proof: 50 Ga., 219. Where an officer

of the W. & A. Railroad was not indictable under this section : 50 Ga., 314-326. Where the allegations of the indictment and proof as to the kind and character of trust did

not agree : 53 Ga., 326-8. What the indictment should charge under this section : 57 Ga., 367. Proof of money not sufficient without more, where the indictment charges

lawful currency of the United States : 64 Ga., 61.

§4425. Penalty for withholding what is due the State. [If any person, having heretofore fraudulently, or wrongfully, or illegally received ~

PART IV.—TITLE I.—DIVISION VI. 1159

Crimes and offenses relative to property.

any money or personal property belonging to the State of Georgia, shall (a) Acts of " refuse to pay over said money, or deliver up said personal property to 1871 2, p * 72- the treasurer of the State of Georgia, or his authorized agent, upon a demand of the same by such treasurer or agent ; or, if any person heretofore having lawfully received money or personal property belonging to the State of Georgia, and still the property of the State, as an officer of said State, or otherwise, shall, after demand upon him by the treasurer of the State of Georgia, or his authorized agent, fail to pay said money or deliver said personal property to said treasurer or his agent within ten days after such demand, such person so refusing shall be guilty of a felony, and shall be punished, after conviction, by confinement and labor in the penitentiary of the State of Georgia for a time not less than one nor longer than two years. And if an}7- person shall hereafter fraudulently, wrongfully or illegally receive any money or personal property belonging to the State of Georgia, and shall refuse to pay over said money or deliver up said personal property to the treasurer of said State, or his authorized agent, upon a demand of the same, by such treasurer or his agent; or, if any person shall hereafter lawfully receive money or personal property belonging to the State of Georgia, as an officer of said State or otherwise, and shall, after demand upon him by said treasurer or authorized agent, fail to pay said money or deliver said personal property to said treasurer or his authorized agent, the same being still the property of the State, within ten daj7 s after such demand, such person so refusing shall be guilty of a felony, and shall be punished, after conviction, by confinement and labor in the penitentiary of said State for any time not less than one nor more than, two years.] (a.)

When would not be a sufficient indictment: 50 Ga., 314, 326; 54/636. Tax collector: 53 Ga., 149.

§4425. (a.) Penalty for using State money by officers. If the State treas- Acts of ists

9 p- 82 ' urer or any other officer of this State, shall use, directly or indirectly, ' the money of this State, such officer shall be -deemed guilty of a felony, and, on conviction, shall be punished by imprisonment in the penitentiary for any time not less than five nor longer than twenty years. §4425. (b.) Penalty for receiving interest on State funds. If the State Acts of 1878 ~ Treasurer, or any other officer of the State, or county, or any other per- 9, p - 32, son whatsoever, shall receive, or agree to receive, from any person, bank, or corporation, any fee, interest or reward for the deposit or use of money of the State, such officer, or other person, shall be deemed guilty of a felony, and, on conviction, shall be punished by imprisonment in the penitentiary for any time not less than five nor longer than twenty years. But nothing in this or the preceding section contained shall be construed to modify or change any law now of force relative to the conduct or liability of the treasurer or any officer of the State. §4426. (4359.) (4322.) Bank officers violating the charter. Any president, director, or other officer of any chartered bank in this State, who shall violate, or be concerned in violating an}' provision of the charter of said bank, shall be guilty of a high misdemeanor, and, on indictment and conviction thereof, shall be punished by imprisonment and labor in the penitentiary for any term not less than one year nor longer than ten years.

Section cited : 55 Ga., 239.

§4427. (4360.) (4323.) Presumption against such officers. Every president, director, or other officer of any chartered bank in this State, shall be deemed to possess such a knowledge of the affairs 'of the corporation as to enable him to determine whether any act, proceeding or omission, is a violation of the charter. And every president and director who 1160 PART IV.—TITLE I.—DIVISION VI.

Crimes and offenses relative to property.

shall be present at a meeting when such violation shall happen, shall be deemed to have concurred therein, unless he shall at the time cause, or in writing require, his dissent therefrom to be entered at large on the minutes of the board. And every president and director not present at any meeting when such violation shall take place, shall, nevertheless, be deemed to have concurred therein, if the facts constituting such violation appear on the books of the corporation, and he remain a director for three months thereafter, and do not within that time cause, or in writing require, his dissent from such illegal proceedings to be entered at large on the minutes of the board. §4i23. (4361.) (4324.) Eoery bank insolvency shall be deemed fraudulent, etc. Every insolvency of a chartered bank, or refusal, or failure to re- deem its bills on demand, either with specie or current bank bills passing at par value, shall be deemed fraudulent, and the president and. directors may be severally indicted for a misdemeanor, and, on conviction shall be punished by imprisonment a id labor in the penitentiary

for any time not less than one year nor longer than ten years : Provided, nevertheless, that the defendant may repel the presumption of fraud by showing that the affairs of the bank have been fairly and legally administered, and generally with the same care and diligence that agents receiving a commission for their services are required and bound by law to observe; and upon such showing the jury shall acquit the prisoner.

Section cited : 60 G-a., 181.

§4428. (a.) Penalty for not paying depositor. Where money is depos- Acts ofi«78 ited on general deposit with any b ink in this State, or with any com- -9, p. L70. pany, or individual doing a banking business in this State, and such bank, or company, or individual, is insolvent at the time, and such insolvency is known to the officers having charge or control of such bank, or company, or to such individual, and such bank, or company, or individual, shall fail to pay to the depositor, or person, entitled thereto, within three days after the demand therefor, the said deposit, or deposits, then such individual, or such officers having charge or control of such bank, or company, who, with the knowledge aforesaid, so received such deposits and so failed to pay the same, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by imprisonment in the penitentiary for any time not less than one year nor more than ten years. §4429. (4362.) (4325.) Certain transfers, etc., of stock fraudulent, etc. All conveyances, assignments, transfers of stock, effects, or other contracts, made by any bank in contemplation of insolvency, or after insolvency, except for the benefit of all the creditors and stockholders of said bank, shall, unless made to an innocent purchaser for a valuable consideration, and without knowledge or notice of the condition of said bank, be fraudulent and void. And the president, directors and other officers of said bank, or any of them, making or consenting to the making of such conveyance, assignment, transfer or contract, whether the same be made to an innocent purchaser or any other, shall severally be guilty of a misdemeanor, and, on indictment and conviction thereof, shall be punished by imprisonment and labor in the penitentiary for any time not less than four years nor longer than ten years. §4430. (4363.) (4326.) Bank officers purchasing its papers at discount. If any president, director, officer, or agent of any bank shall, by himself, or agent, or in any other manner, either for himself or for the bank, directly or indirectly purchase, or be interested in the purchase of any bill, or check, or other evidence of debt issued by the said bank, for a less sum than shall appear then due on the face thereof, such person so PART IV.—TITLE I.—DIVISION VI. 1161

Crimes and offenses relative to property.

offending shall be guilty of a misdemeanor, and, on indictment and conviction thereof, shall be punished by imprisonment and labor in the penitentiary for any time not less than four years nor longer than ten years. §4431. (4364.) (4327.) Declaring fraudulent dividends. No dividends shall be made by any bank, except from the net profits arising from the business of the corporation; and if any president and directors shall declare or pay over any dividend from the capital stock, or any other funds of the bank, except the net profits thereof, such president and directors shall, severally, be guilty of a misdemeanor, and, on indictment and conviction thereof, shall be punished by confinement and labor in the penitentiary for any time not less than four years nor longer than ten years.

§4432. (4365. ) (4328.) Purchasing shares with capital stock. If the pres- dent and directors of any bank, or any of them, shall use and apply any part of the capital stock of such bank to the purchase of shares of its own stock, such president and directors shall be guilty of a misdemeanor, and, on indictment and conviction thereof, shall be punished by imprisonment and labor in the penitentiary for any time not less than one year nor more than ten years. §4433. (4366.) (4329.) Unlawful mining. If any person shall dig, or (a) Acts of 6 p * take and carry awa}* from the land of another, any gold, bullion, silver, 233? ' or other metallic substance, with intent to appropriate the same to his or her own use, without having previously obtained permission of the owner of such land so to do, he or she shall be guilty of a misdemeanor, and, upon conviction, shall be punished [as prescribed in section 4310 of this Cede.] (a.) §4434. (4367.) (4330.) Erecting or using machinery to 'procure gold. If any person shall erect or use any machinery for the purpose of procuring gold or other metals from the land of another, with intent to appropriate the same to his or her own use, or for any other person whatsoever, without the permission of the owner of the land or his agent, he or she shall be guilty of a high misdemeanor, and, upon conviction, shall be punished as prescribed in section 4310 of this Code.

§4435. (4368.) (4331.) Embezzling of county funds. Any county treas- Act of 1843, urer of any county in this State, who shall divert, misapply, embezzle, c-p- '"• or conceal any money belonging to the county of which he is such wc^l+^x— c^ county treasurer as aforesaid, with intent to appropriate the same to .^f^^*^, ' his own use, shall be guilty of a misdemeanor, and, upon conviction,//T/V^/ shall be punished with fine or imprisonment in the common jail, or// ^ <^^-/, both, at the discretion of the Court, and ehall moreover be removed from office ; and on the trial of such defendant, proof of his having failed or refused to make an exhibit to the grand jury of the county of which he is such county treasurer, at the Superior Court first held in each year in said county, (unless prevented by providential cause,) a full and complete statement of the county funds, as required by law, received by him during the preceding year, shall be deemed prima facie evidence of guilt, and throw the burden of proof upon the defendant. The prosecuting officer, on the trial of any indictment founded on this clause, shall not be required to identify the money, coin, or bank bills, or other property misapplied, embezzled, or concealed ; but in all cases, an allegation that any sum of money or evidence of debt has been received by the defendant, belonging to the county, and that he fails or refuses to account for the same, if proved, shall authorize a conviction, unless the defendant shall set up and sustain a valid and legal defense to the charge. §4435. (a.) Penalty for receiving interest on public funds. The receiving, directly or indirectly, by any officer of the State, or county, or mem- :

1162 PART IV.—TITLE I.—DIVISION VI.

Crimes and offenses relative to property.

Acts of 1878 ber or officer of the General Assembly, of any interest, profits, or per- -9, 33. p. qU i s ites arising from the use or loan of public funds in his hands, or monevs t > be raised through his agency for State or county purposes, snail be deemed and held a felony, and, on conviction, shall be punished by imprisonment in the penitentiary for a period not less than two years, nor longer than seven years, and shall be disqualified from holding office. §4436. (4369.) (4333.) Fraudulent levies on property. Any person who Act of 1837, shall fraudulently cause any process, attachment, distress, or execution, P (a) A.cts'of to be levied on any estrayed animal, or any lot or lots of land, or other 1865-6, p. property, knowing the same not to be subject to such process or writ, shall be guilty of a misdemeanor, and, on conviction, for the first offense, shall [punished as prescribed in section of be 4310 this Code ;] (a.) and on any subsequent conviction shall be sentenced to labor in the penitentiary not less than two nor longer than four years.

§4437. (4370. ) (4334.) Intruding on railroad tracks. Any person in- Actsofi875. truding unlawfully upon the constructed track of any* railroad compa-

Aefof 1837 ny °f this State, or the State railroad, contrary to the will of the com- c. p. 850. ' pany or superintendent, shall be guilty of a misdemeanor, and upon conviction [shall be punished as prescribed in section 4310 of this Code.] (a.) §4438. (4371.) (4335.) Destroying, injuring or obstructing railroads If Act of 1837, any person shall willfully and maliciously destroy, or in any manner c^p.85o. f nur^ damage, injure, or obstruct, or shall willfully and maliciously /^*c ^* ^ cause, or aid and assist, or counsel or advise any other person or per- M€ £*t^*^/** J$ns to destroy, or in any manner to hurt, damage, )r injure, or obstruct /ptf-S* W$& ^ny such railroad, or any branch thereof, or any bridge connected therewith, or any vehicle, edifice, right or privilege granted by char-

ter, and constructed for use under authority thereof ; or if an unauthorized person or persons shall turn, move, or in any manner interfere or meddle with any gate, switch, sideling, or other appurtenances to any such railroad, such person so offending shall be guilty of felony; and, on conviction, shall be imprisoned in the penitentiary not less than four nor longer than eight years. If death ensues from such act to any person, the offender shall be guilty of murder, and punished accordingly. This penalty shall in no case interfere with the offender's liability to civil damages. §4439. (4372.) Interference with magnetic telegraph companies. If any

Act oi 1847, person shall willfully destroy, damage, or in any way injure the c. p. 735. posts, wires, or fixtures of any magnetic telegraph company in this

(a) Acts of State, he shall be guilty of a misdemeanor, and, on conviction, shall be i86o-6, p. punished [as prescribed in section 4310 of this Code.] (a.)

§4440. (4373. ) What acts deemed trespass. [The following shall be v /^deemed and held to be trespass, and indictable, to-wit ft^iuti fo$JSL&\ The willful cutting or felling of any wood, timber, or shade tree, (a) Ac&% [or any chestnut tree or trees) (a.) upon the land, inclosed or unin- 6 t V?• jffi;closed, of another, without the consent of the owner. f 2. The taking and carrying away, or attempting to take and carry f^ ""*'«, way, any timber, wood, rails, fruit, vegetables, corn, cotton, or any ft / f other article, thing, produce, or property of. any value whatever, from the land, inclosed or uninclosed, of another, without the consent of the owner. 3. The pulling down or removing any fence, paling, or inclosure of another, without the consent of the owner. 4. The squatting or settling upon the land, inclosed or uninclosed, of another, whether public or private, with no bona fide claim or color of

*The word "chartered" stricken from this section See Acts of 1875, page 26. PART IV.—TITLE I.—DIVISION VII. 1163

Forgery and counterfeiting, and unlawful currency.

title, and without the consent of the owner : Provided, the intruder shall not remove off of land after days' the ten notice ; and, provided further, that this paragraph shall not apply to wayfarers who shall camp for a night, or in case of providential detention, for a longer time, on uninclosed land. Any person committing any of the acts of trespass specified in this section, shall be held and deemed guilty of a misdemeanor, and subject (b) Acts of PP " to indictment in any Court having jurisdiction thereof and upon con- 237°~238 viction shall be punished [as prescribed in section 4310 of this Code.] (b.) [When any person, in violation of the first division of this section, shall cut or fell any chestnut tree or trees upon the lands, inclosed or uninclosed, of another, without the consent of the owner, it shall be the duty of the grand juries iri the several counties of this State to make special presentment of all such offenses coming to their knowl-Cg Acts of p * edge, in which no informer has appeared, and it shall be lawful for any ' person to prosecute such offenders, whether such person is the owner of the land trespassed upon or not, and the informer in such cases shall be entitled to one-half of the fine which may be imposed and collected for a violation of this section. Upon the trial of the issue found in , (( the bill of indictment for violation of this section, as to chestnut trees, the burden of proof shall be upon the defendant, to show the right or authority under and by which he committed the act, where the defendant was not in actual possession of the. land when the trespass was alleged to have been committed.] (b.)

2 Bishop Cr. Law, § 491-4 ; 2 Bish. Cr. Proc, £389; 2 Whart. Cr. Law, §§2002, 2055, a.

§4441. (4374.) Illegal hunting. It shall not be lawful for any person Acts of 1878 9 to hunt with dogs, firearms or other implements, in or through any- r ^ ^j^g inclosed lands.iields, walks, or pastures, after being forbidden so to do, (c) Acts ofy^ > <.

' or ordered to desist therefrom by the owner thereof, or the person hav- Aeteo?'i874i ^ 21. ing the same in charge, or his or their agent ; and for every violation p. of the provisions of this section, the person so offending shall be deemed and held guilty of misdemeanor, and subject to indictment in any Court having jurisdiction thereof, and upon conviction, shall be fined or imprisoned, or both at the discretion of the Court, the fine not to exceed fifty dollars, the imprisonment not to exceed thirty days for each offense. Posting a card in two or more places on inclosed lands, fields, walks, or pastures, and one at the door of the Court House in the county where such lands, fields, walks, or pastures are situated, forbidding all persons to enter upon and hunt thereon, shall £>e held and deemed a legal notice under this^ection. ^NM^£^~f/€ y^^. ^/y*.~ /f f. ~~Jx ~*

Section. Bection. 4442. Official certificates, etc. 4451. Any other writing. 4443. Counterfeiting coin. 4452. Forged public seal. 4444. Bank notes. 4453. Using fictitious name. 4445. Bank check or draft. 4454. Personating another. 4446. Altering bank notes. 4455. Buying under false letters, etc. 4447. Knowingly uttering. 4456. Issuing, etc., unlawful currency. 4448 Possessing to pass. 4457. Each bill, new offense. 4449. Possessing implements. 4158. Duty of grand jury. 4450. Forging notes, bills, etc. 4459. Disposition of fine.

§4442. (4375.) (4337.) Forging any official certificates, etc. If any person or persons shall falsely and fraudulently make, forge, alter, or counterfeit, or cause or procure to be falsety and fraudulently made, forged, altered, or counterfeited, or willingly aid or assist in falsely and fraudulently making, forging, altering, or counterfeiting any audited ;

1164 PART IV.—TITLE L—DIVISION VII.

Forgery and counterfeiting, and unlawful currency.

certificate or other certificate issued or purporting to have been issued by the Auditor-General, or other officer authorized to issue the same, or any order or warrant issued or purporting to have been issued by the Governor, or the President of the Senate, or Speaker of the House of Representatives of the General Assembly of this State, or by any officer of the Government, or authorized person, on the treasury of said State, for any money or other thing, or any warrant for land issued or purporting to have been issued by the Judge of any land Court, or by any other tribunal, officer or person, authorized to do so, within this

State ; or any certificate, draft, warrant, or order, from any of the public officers of this State, issued or purporting -to have been issued under or by virtue of an act or resolution of the General Assembly of this State or any certificate, draft, order, or warrant, issued or purporting to have been issued by any Court, officer, or person authorized to draw on the treasury of this State, or for public money, wherever the same may be deposited, or any deed, will, testament, bond, writing obligatory, bill of exchange, promissory note, or order for money, or goods, or other things of value, or any acquittance or receipt, or any indorsement or assignment of any bond, writing obligatory, bill of exchange, promissory note, or order for money or goods, or other thing or things of value, with intent to defraud the said State, public officer or officers, Courts, or any persons authorized, or any person or persons whatsoever, or shall utter or publish as true any false, fraudulent, forged, altered or counterfeited audited certificate, Governor's, President's, Speaker's, public officer's, Court's, or other duly authorized person's certificate, draft, warrant, or order, so as aforesaid issued, or purporting to have been issued, or any deed, will, testament, bond, writing obligatory, bill of exchange, promissory- note, or order for money, or goods, or other thing or things

of value ; or sniy acquittance or receipt for money or goods, or other thing

or things of value ; or any indorsement or assignment of any bond, writing obligatory, bill of exchange, promissory note, or order for money or goods, or other thing or things of value, with intent to defraud the said State, public officers, Courts, or persons authorized as aforesaid, or any other person or persons whatsoever, knowing the same to be so

falselv and fraudulently made, forged, altered, or counterfeited ; every such person so offending, and being thereof lawfully convicted, shall be punished by imprisonment and labor in the penitentiary for any time not less than four years, nor longer than ten years. Competent to show the writing was passed to prove fraudulent intent: 11 Ga., 92. Must be published as true when known to be fraudulent to the party with intent to injure: 28 Ga., 367. Section referred to and construed: 62 Ga., 301. §4443. (4376.) (4338.) Counterfeiting or knowingly uttering counterfeit coins, penitentiary four to ten years. If any person shall falsely and fraudulently make, forge or counterfeit, or be concerned in the false and fraudulent making, forging and counterfeiting of any gold, silver or copper coin, which now is or shall be passing, or in circulation within this State; or shall falsely and fraudulently make, or be concerned in the false and fraudulent making of any base coin of the likeness or similitude of any gold, silver, or copper coin, which now is, or shall be passing, or in circulation in this State; or shall falsely and fraudulently litter, publish, pay, or tender in payment, any such counterfeit and forged coin of gold, silver, or copper, or any base coin, knowing the same to be forged, or counterfeited, or base, or shall aid or abet, couusel

or command the perpetration of either of the' 1 said crimes, such person shall, on conviction, be punished by imprisonment and labor in the penitentiary for any time not less than four years nor longer than ten years. Have the States any jurisdiction over offenses against the coin? 4 Ga., 136. What indictment sufficient: 6 Ga., 503. PART IV.—TITLE L—DIVISION VII. 1165

Forgery and counterfeiting, and unlawful currency.

2 Bishop Cr. Law, £260 ; 3 Whart. Ev., £3524 ; 2 Bisb. Cr. Proc, £246; 2 Arch. Cr. Pr. ,nd PI., 1669; R. M. Charl., 151.

§4444. (4377.) (4339.) Counterfeiting bank notes, penitentiary four to ten /ears. If any person shall falsely and fraudulently make, sign, or >rint, or be concerned in the false and fraudulent making, signing or >rinting of any counterfeit note or bill of any bank of this State, or he note or bill of any incorporated bank, whose notes or bills are in drculation in this State ; or falsely and fraudulently cause, or procure he same to be done, such person so offending shall, on conviction, be )unishedby imprisonment and labor in the penitentiary for any time lot less than four years nor longer than ten years. §4445. (4378) (4340.) Bank check or draft. If any person shall falsely tnd fraudulently make, sign, or print, or be concerned in the false and raudulent making, signing, or printing of any check or draft upon any >ank of this State, or bank as aforesaid, or falsely or fraudulently pro- ure the same to be done, such person so offending shall, on conviction, >e punished by imprisonment and labor in the penitentiary for any ime not less than three years nor longer than seven years. Indictment must specify the person intended to be defrauded, and where the check ras too imperfect to defraud any one : 51 Ga., 535.

§4446. (4379.) (4341.) Alteration of bank notes, etc., penitentiary three to m years. If any person shall falsely and fraudulently alter, or be con- erned in the false and fraudulent alteration of any genuine note, bill, heck, or draft of or on any bank as aforesaid; or falsely and fraudu- ently cause or procure the same to be done, such person so offending hall, on conviction, be punished by imprisonment and labor in the >enitentiary for any time not less than three years nor longer than ten rears. The bank bill alleged to have been raised or altered must be charged and proven to lave been genuine: 33 Ga., 225. §4447. (4380.) (4342.) Knoivingly uttering or passing them. Ifanyper- on shall falsely and fraudulently pass, pay, or tender in payment, itter or publish any false, forged, counterfeit or altered note, bill, check, >r draft, as aforesaid, knowing the same to have been falsely and fraudulently forged, counterfeited, or altered, such person so offending shall, >n conviction, be punished by imprisonment and labor in the peniten- iary for any time not less than two years nor longer than ten years. §4448. (4381.) (4343.) Possessing, intending to pass them. If any person shall have in his or her possession any such false, forged, counterfeit, >r altered note or notes, bill or bills, draft or drafts, check or checks, vith intention fraudulently to pass the same, such person so offending ihall, on conviction, be punished by imprisonment and labor in the )enitentiary for any time not less than two years nor longer than ten rears. §4449. (4382.) (4344.) Possessing types, paper, etc., intending to counterfeit. If any person shall have in his or her possession any bank pa- )er, types, plates or machinery, for the purpose of falsely or fraudu- ently forging and counterfeiting any notes, bills, checks or drafts as iforesaid, such person so offending shall, on conviction, be punished by mprisonment in the penitentiary for any time not less than four years lor longer than ten years. §4450. (4383.) (4345.) Forging or uttering certain bills, etc. If any per ion shall falsely and fraudulently make, forge, counterfeit, or alter any lote, bill, draft or check of or on any person, body corporate, company,

)r mercantile house or firm, or purporting so to be ; or fraudulently and. alsely utter, publish, pass, pay, or tender the same in payment, or de- nand payment of the same, knowing the said bill, note, draft or check

1166 PART IV.—TITLE I.—DIVISION VII.

Forgery and counterfeiting, and unlawful currency.

person so offending shall, on conviction, be punished by confinement and labor in the penitentiary for any time not less than two nor longer than ten years.

If for a note, the money must be payable absolutely, unconditionally and at all events: 24 Ga., 287. Where two persons of the same name, and one signs that name

intending it to be used as the note of the other : 29 Ga., 127.

§4451. (4384.) (4346.) Forging any other writing. If any person shall fraudulently make, sign, forge, counterfeit, or alter, or be concerned in the fraudulent making, signing, forging, counterfeiting or altering any other writing not herein provided for, with intent to defraud any person or persons, bank or other corporate body, or shall fraudulently cause or procure the same to be done, such person so offending shall, on conviction, be punished by imprisonment and labor in the penitentiary for any time not less than two years nor longer than five years.

Prove passing of the writing to show fraudulent intent: 11 Ga.. 92. Forging name to a letter, guilty under this section: 56 Ga., 171-2. Where the Court did not err in charging this section to the jury: 59 Ga., 786-7. A proper conviction of forgery on a paper under this seciion: 62 Ga., 299-301. Any writing in form to defraud another Berrisford vs. State, Pamphlt., September term, 1880, p. 45.

§4452. (4385.) (4347.) Forging or using forged public seals. If any person shall falsely and fraudulently forge or counterfeit, or be concerned in forging and counterfeiting, the great seal of this State, or any seal used for government purposes, the public and common seal of any Court,

T office, county, or corporation, or any other seal authorized by law , or shall falsely and fraudulently cause or procure the same to be forged and counterfeited, or shall falsely, fraudulently, and knowingly im- press, or cause to be impressed, any instrument whatever, whether the same be written or printed, or partly written and partly printed, with such forged and counterfeit seal, or shall falsely, fraudulently and knowingly annex or affix, or cause to be annexed or affixed to any such instrument, such forged and counterfeit seal, or shall falsely and fraudulently utter or publish any instrument or writing whatever, impressed with such forged and counterfeit seal, knowing the same to be forged and counterfeit, such person so offending shall be punished by imprisonment and labor in the penitentiary for any time not less than two years nor longer than ten years.

Seal on a grant : 55 Ga., 659.

§4453. (4386.) (4348.) Using fictitious names. Any person who shall draw or make a bill of exchange, due bill, or promissory note, or indorse or accept the same in a fictitious name, shall be guilty of a forgery, and, on conviction, be punished by imprisonment and labor in the penitentiary, for any time not less than two years nor longer than seven years. Not necessary that the indictment should allege that act done with intent to de-

fraud : 17 Ga., 459. §4454. (4387. (4349.) Personating another. If any person shall put his own name to any instrument, representing himself to be a different person of that name, snch person shall be guilty of forgery, and, on conviction, shall be punished by imprisonment and labor in the penitentiary for any time not less than two years nor more than seven years. §4455. (4388.) (4350.) Obtaining goods, etc., on false writings. If any person shall designedly, by color of any counterfeit letter or writing, made in any other person's name, or ficticious name, obtain from any person money, goods, chattels, or other valuable thing, with intent to defraud any person, mercantile house, or body corporate, or company of the same, such person so offending shall, on conviction, be punished by im- PART IV.—TITLE I.—DIVISION VII. 1167

Forgery and counterfeiting, and unlawful currency. prisonment and labor in the penitentiary, for any time not less than two nor more than seven years.

Obtaining a chattel by a false note : 29 G-a., 127-0. Should not only be published as trne when known to the party to be fraudulent, with the intent to injure some one : 28 predicated order "to pay this man," Ga., 3G7 ; 56/604. When on without date, will sustain an indictment: 50 Ga., 78-1. Conviction also on an order to a store-keeper to let bearer have three dollars' worth of goods: 60 Ga., 18-4. Where order for $1.00 changed to eight in place of the one : 6-4 Ga., 448.

§4456. (4389.) (4351.) Unauthorized issue of currency. Any person or Act of 1811, persons, body corporate or politic, who may hereafter make, issue, cir- C. p. 817. Act of 1842, culate, pay, or tender in payment (not being an innocent holder there- 0. p. 488. Acts Of 1851 draft, bill for of of), an}^ check, order, or the payment money, or other -2, p. 25' thing having the form or similitude of a bank note, and intended to be (a) Acts of 1865-6, p. used and circulated as money, or circulating medium, except such 233. banking institutions and corporations as bylaw are authorized to issue notes or bills for circulation, shall be liable to indictment, as for a misdemeanor, and, on conviction, shall be punished as prescribed in section 4310 of this Code. Section cited: 52 Ga., 624. f §4457. (4390.) (4352.) Each bill a new offense. The making or issuing Act of 1841, each check, order, draft, or bill for the payment of money, or other C p. 847. thing having the similitude of money, as above, shall be considered and held as a separate and distinct offense ; and if done by any corporation or body politic, the officer or member of the same signing the said check, order, bill, or other thing having the similitude of money, or intended to be used as money, shall be liable to prosecution and conviction. §4458. (4391.) (4353.) Duty of Judge and jury. It shall be the duty of every grand jury to notice and present all violations of the foregoing provisions as to unauthorized currency, and of the presiding Judges of the Superior Courts, whenever necessary, to give the same in sj>ecial charge.

§4459. (4392.) (4354.) Disposition of fine. In all cases of conviction Acts of 1851 for violation of sections 4456 and 4457, one-half of the fine shall be -2, p. 25. paid to the prosecutor, if there be one, and the other half to the educational fund of the county.

General Note on Forgery.—2 Whart, Cr. Law, §1418; 3/§3524 ; 2 Bish. lb., §495; 2 Bish. Cr. Proa, §398; 2 Arch. Cr. Pr. and PL, 1563; 3 Gr. Ev., §102; 22 Am. D., 306-

321, full note ; Byles on Bills, 326-332; 2 Dan. Neg. Inst, 325; 1 Hawley's Cr. Rep.,

225-230; 2/141 etseq.; R. M. Charl., 151 ; 1 Am. R., 282; 19/353; 20/774. Fraudulently and falsely making municipal certificate of indebtedness ultra vires, is : 30 Am. R., 780. But unauthorized making and negotiating of county bonds by County Treasurer, signing only in his own name, is not "being or purporting to be the act of another": 31 Am. R., 482. Fictitious decree of divorce, not purporting to be copy of record, not forgery of public record : 29 Am. R., 25. Of unacknowledged married woman's deed, not indictable: 25 Am. R., 475. Receipt for money is "acquittance": 31 Am. R., 679. Instrument apparently void may be shown capable of defrauding, by extrinsic evidence : 25 Am. R., 639. ;

1168 PART IV.—TITLE I.—DIVISION VIII.

Crimes and offenses against the public justice.

EIGHTH DIVISION.

CRIMES AND OFFENSES AGAINST THE PUBLIC JUSTICE.

Section. Section. 4460. Perjury. 4486. (a.) Lobbying defined. 4461. Punishment. 4486. (b.) Lobbying, how punished. 4462. False swearing. 4487. Refusing penitentiary prisoners. 4463. Punishment. 4488. Receiving stolen goods. 4464. Subordination 4489. Principal escaping. 4465. Punishment. 4490. Accessories after the fact. 4466. Disqualification. 4490. (a.) Harboring convicts. 4467. Verdicts void. 4491. Compounding felonies. 4468. Causing death. 4492. Compounding penalties. 4469. Bribery. 4493. Conspiracy to defraud the State. 4470. Punishment. 4494. Conspiracy by officers. 4470. (a.) Officers influencing Governor, how 4i95. By legislators. punished. 4496. Conspiracy, when complete. 4471. Altering public documents. 4497. Conspiracies. 4472. Sale of offices. 4498. Interfering with apprentices. 4473. Cruelty in jailer. 4499. Who may testify. 4474. Detaining public records. 4500. Illegal employment of servants. 4475. Personating in bail. 4501. Barratrv. 4476. Obstructing process. 4502. Punishment. 4477. Assauits colore officii. 4503. Embracery. 4478. Rescue. 4504. Malpractice by Justice of the Peace. 4479. Punishment in criminal cases. 4505. Dockets, how kept. 4480. In civil cases. 4506. Threatening letters. 4481. Attempt to rescue. 4507. Extortion. 4482. Aiding to escape. 4508. Punishment.

4483. From custody, 4508. (a ) Attorney-General receiving fees, how 4483. (a.) Escapes, how punished. punished. 4483. (b.) Aiding to escape, how punished 4509. Other offenses. 4484. From penitentiary. 4510. Mutiny. 4485. Voluntary escape. 4511. Instigating munity. 4486. Refusing to receive prisoner. 4512. Receiving stolen goods from negroes.

§4460. (4393.) (4355.) Perjury defined, Perjury shall consist in will- §1471. fully, knowingly, absolutely and falsely swearing, either with or without laying the hand on the Holy Evangelist of Almighty God, or affirming in a matter material to the issue or point in question, in some judicial proceeding, by a person to whom a lawful oath or affirmation is administered.

Demand on the minutes for trial, when can nol. pros. : 9 Ga., 306. When not guilty on an untrue affidavit: 20 Ga., 169. As to verdict on perjured evidence: 25 Ga., 671. And resort to equity for: 30 Ga., 300. Swearing he has seen the instrument presented to him before, and was present when the same was executed, if the contrary be true, tie could be prosecuted for perjury: 16 Ga., 384. Material statements, if sworn to willfully, absolutely and falsely as to any of them, guilty of perjury: 31 Ga., 676. A

verdict of guilty brought in by the jury, sustained by the evidence : 52 Ga., 581. An indictment that was demurrable: 52 Ga., 242. Error of the Court in not admitting evidence as to the understanding of the parties, where an illiterate man was charged with perjury: 48 Ga., 170. State Courts had no jurisdiction when the offense committed is'against the laws of the United States: 55 Ga., 192. Improper admission of evi-

dence : 58 Ga., 397. May be assigned on an affidavit charging an offense : 58 Ga., 336.

What would protect in an affidavit from the charge of perjury : 60 Ga., 113-114.

2 Whart, Cr. Law, §2198 ; 2 Bish. lb., §980; 2 Bish. Cr. Proc, §899 ; 3 Gr. Ev., §188

et ; see Code, §3755 ; 2 Arch. Cr. Pr. and PL, 1714; 1 Hawley's Cr. Rep., 497 seq. 2/410, 416, 650; 21 Am. P., 365. In naturalization: 9 Am. P., 196. Affidavit to returns of

bank : Note to Code, §§1468-1471. Attesting officer not authorized to take affidavit : 32 Am. P., 293.

- §4461. (4394.) (4356.) Punishment, Any person who shall commit the crime of perjury shall be punished by imprisonment and labor in the penitentiary for any time not less than four years nor longer than ten years. §4462. (4395.) (4357.) False siuearing defined, False swearing shall •consist in willfully, knowingly, absolutely and falsely swearing, either with or without laying the hand on the Holy Evangelist of Almighty God, or affirming in any matter or thing (other than a judicial proceeding), by a person to whom a lawful oath or affirmation is administered.

Section cited : 55 Ga., 219. §4463. (4396.) (4358.) Penitentiary three to ten years. Any person who shall commit the crime of false swearing shall be punished by im- PART IV.—TITLE L—DIVISION VIII. 1169

Crimes and offenses against the public justice.

prisonment and labor in the penitentiary for any time not less than §838. three years nor longer than ten years.

Section cited : 55 Ga., 219. §4464. (4397.) (4359.) Subornation. Subornation of perjury and false swearing shall consist in procuring another person to commit the crime vof perjury or false swearing.

Subornation of perjury: 3 Woods, 39; 2 Bish. Cr. Proc, §1019 ; 2 Arch. Cr. Pr. ;and PL, 1749.

§4465. (4398.) (4360.) Penitentiary three to ten years. Any person who shall commit the crime of subornation of perjury, or false swearing, .shairbe punished by confinement and labor in the penitentiary for any lime not less than three years nor longer than ten years.

§4466. (4399.) (4361.) Disqualified as a witness. Any person who shall 23354, be lawfully convicted of either of the crimes mentioned and defined in sections 4460, 4462, and 4464 of this Code, shall, in addition to the punishment prescribed in sections 4461, 4463, and 4465 of this Code, be forever thereafter disqualified from being a witness in any controversy.*

Effect on witness' evidence who had beei guilty of perjury : 53 Ga., 365 ; 55/597. §4467. (4400.) (4362.) Verdicts, etc., obtained by perjury set aside. Any gg^ verdict, or judgment, rule or order of Court, which may have been obtained or entered up, shall be set aside and be of no effect, if it shall .appear that the same was obtained or entered up in consequence of

willful and corrupt perjury, and it shall be the duty of the Court in • which such verdict, judgment, rule or order may have been obtained -and entered up, to cause the same to be set aside, upon motion and no- itice to the adverse party; but it shall not be lawful for the said Court to do so, unless the person charged with said perjury shall have been thereof duly convicted, and unless it shall appear to the said Court that the said verdict, judgment, rule or order could not have been obtained or entered up without the evidence of such perjured person, saving always to third persons, innocent of such perjury, the right which they may have lawfully acquired under such verdict, judgment Tule or order, before the same shall have been actually vacated and set *aside.

Section cited : 46 Ga., 347. As to indicting and convicting witness of perjury so as

it© set the verdict aside : 59 Ga., 247 ; 60/211-212.

§4468. (4401.) (4363.) False witness causing death, etc., to suffer death. If .any person, by willful and corrupt perjury, shall take away the life of another, or, by such willful and corrupt perjury, convict another of any offense which, by this Code, is punishable with death or perpetual imprisonment, such person shall be punished with death or perpetual imprisonment. §4469. (4402.) (4364.) Bribery defined. Bribery is the giving or receiving any undue reward to influence the behavior of the person receiving such reward in the discharge of his duty, in any office of government or of justice.

2 Whart. Cr. Law, §2813; 2 Bish. lb., §95; 3 Gr. Ev., §71; 2 Bish. Cr. Proc, §123; 2

Arch. Cr. Pr. and PL, 1663 ; 2 Hawley's Cr. Rep., 23.

§4470. (4403.) (4365.) Punishment of bribery. If any person shall di-< a > Acts of " 5 6 r ' rectly or indirectly give, or offer to give any money, goods, or other ^f ' bribe, present, or reward; or give or make any promise, contract or -agreement for the payment, delivery or alienation of any mOney, goods,

lands, or other bribe ; or use any promises, threats, persuasions, or other like sinister, unfair, or fraudulent practices, in order to obtain or in-

*Changed by evidence Act ; see section 3854. 1170 PART IV.—TITLE I.—DIVISION VIII.

Crimes and offenses against the public justice.

fluence the opinion, judgment, decree, or behavior of any member of the General Assembly, or any officer of this State, Judge, Justice, referee, or arbitrator, in any discussion, debate, action, suit, .complaint, indictment, controversy, matter, or cause depending, or which shall depend before him or them, such person shall, on conviction, be punished [as prescribed in section 4310 of this Code.] (a.) And the member of the General Assembly, or officer, Judge, Justice, referee, or arbitrator, who shall accept or receive such bribe, shall, on conviction, be punished [as prescribed in section 4310 of this Code.] (a.)

§4470. (a.) Penalty for influencing Governor by officers, etc. If any offi- Acts of 1878 cial, or clerk, or employee of any official of any or either of the depart- -9, p. its. nients of the government of this State, shall receive, or contract to receive, any money, fee, reward, or other thing of value, in consideration of, or for influencing, or attempting to influence, or procuring, or attempting to procure, any other person or persons to influence or attempt to influence the Governor of this State, Or the head of any or either of the departments of the government of this State, in the discharge of any official duty of any or either of them, and shall actually so i influence or attempt to influence, or shall procure or attempt to procure any other person or persons to influence, or attempt to influence, said Governor, or the head of any or either of said departments of the government of this State, in the discharge of any official duty of any or either official, clerk i of them, such or employee so offending, shall be guilty of a felony, and, upon conviction thereof, shall be punished by imprisonment in the penitentiary for not less than one nor more than twenty years. §4471 (4404.) (4366.) Stealing or altering public documents. If any Judge, Justice, mayor, alderman, clerk, Sheriff, coroner, or other public officer, or any other person whatsoever, shall steal, embezzle, alter, corrupt, withdraw, falsify, or avoid any record, process, charter, gift, grant, conveyance, or contract, or shall knowingly and willingly take off, discharge, or conceal any issue, forfeited recognizance, or other forfeiture; or shall forge, deface, or falsify any document or instrument recorded, or any registry, acknowledgement, or certificate, or shall alter, deface, or falsify any minute, document, book, or any proceeding whatever, of

or belonging to any public office within this State ; or if any person shall cause or procure any of the offenses aforesaid to be committed, or be in anywise concerned therein, the person so offending shall be punished by imprisonment and labor in the penitentiary for any time not less than two years nor longer than ten years.

§4472. Penalty for selling offices, or dividing profits thereof. [It shall not

(a) Acts of be lawful for any person or persons who have been, or may hereafter 1871-2, p. ^ e i ec ted to any office in this State, t"> sell or farm out any office to which they have been or may hereafter be elected ; nor shall it be lawful for any person or persons to purchase or agree to give any money or other thing of value to a person elected for the privilege of exercising

' the duties of said office; nor shall it be lawful for any person or persons to promise or agree to divide the profits, fees, qr emoluments of said office, with the person so elected. Any person or persons wT ho shall this felon}7 and, on violate the provisions of section shall be guilty of a , indictment and conviction, shall be punished by confinement and labor in the penitentiary for a term not less than one year nor longer than three years.] (a.)

§4473. (4405.) (4367.) Jailer, misconduct of. If any jailer, by too great a duress of imprisonment, or other cruel treatment* make or induce a prisoner to become an approver, or accuse and give evidence against person or be guilty of willful inhumanity or oppression to some other ;

any prisoner under his care and custody > such jailer shall be punished by )

PART IV.— TITLE I.—DIVISION VIII. 1171

Crimes and offenses against the public justice.

removal from office, and imprisonment and labor in the penitentiary for any time not less than one year nor longer than three years.

§4474. (4406.) (436S.) Officer detaining book*, etc. If any officer, after (a) Acta of " the expiration of the time for which he may have been elected or ap-^lj5 6, p" pointed, shall willfully and unlawfully withhold or detain from his §§172, 177. successor the records, papers, documents, books, or other writings appertaining and belonging to his office, or mutilate, destroy, take away, or •otherwise prevent the complete possession by his said successor of said records, documents, papers, books, or other writings, such person so offending shall, on conviction, be punished [as prescribed in section 4810 of this Code.] (a.) §4475. (4407.) (4369.) Personating in bail judgments, etc. If any person, except the attorney of record, shall acknowledge, or procure to be ac- knowledged, in any of the Courts of this State, or before any authorized officer, any recognizance, bail, or judgment in the name of any other person not privy or consenting thereto, such person so offending shall, on conviction,^ be punished by imprisonment and labor in the penitentiary for any period of time not less than one year nor longer than four years. §4476. (4408) (4370.) Obstructing process. If any person shall know- (&) Acts of " ingly and willfully obstruct, resist, or oppose any Sheriff, coroner, or^5 6,1** other officer of this State, or other person duly authorized, in serving, or attempting to serve or execute any lawful process, or order of any Court, Judge, Justice, or arbitrators, or any other legal process whatever ; or shall assault or beat any Sheriff', coroner, constable, or other officer, or person duly authorized, in serving or executing any process or order aforesaid, or for having served or executed the same, every person so offending shall, on conviction, be punished [as prescribed in section 4310 of this Code.] (a.) Need not prove the appointment of such officers: 21 Ga., 217. In a city when not as against the marshal : 22 Ga., 67. When is: 45 Ga.. 154. Cannot be settled under section 4706 of the Code : 41 Ga.. 507. Erroneous charge of the Court : 51 Ga., 409. No action for. against a railroad company because its agent obstructed an officer in levying an attachment : 60 Ga., 313.

2 AVhart. Cr. Law, §1288 ; 2 Bish. lb., §975 ; 2 Bish. Cr. Proc, ?879; 1 Arch. Cr. Pr. and PL, 940.

§4177. (4409.) (4371.) Assault, etc., under color of office. If any officer of this State, whatever, shall assault or beat any individual under color of his office, or commission, without a lawful necessity so to do, such officer so offending shall, on conviction, be punished [as prescribed in section 4310 of this Code.] (a. §4478. (4410.) (4372.) Rescue defined. Rescue is the- forcibly and knowingly freeing another from arrest or imprisonment.

Offense of aiding prisoners to escape from jail not merged in the rescue : 15 Ga., 505. 2 2 Arch. Cr. Pr. Whart. Cr. 2 Bish. lb.. 2 Bish. Cr. ; Law, §2615 ; §1045; Proc, §945 and PL, 1871. §4479. (4411.) (4373.) Rescue in criminal cases. If any person shall (a) Acts of 6 p ' rescue another in legal custody on criminal process, such person so of- 233'r ' fending shall, on conviction, receive the same punishment as the per- but if the son rescued would, on conviction, be sentenced to receive ; j)erson rescued shall have been acquitted of the crime charged against him, then and in such case, the person rescuing shall be punished [as prescribed in section 4310 of this Code.] (a.) §4480. (4412.) (4374.) Rescue in civil cases. If any person shall res- (a) Acts of 6 p ' cue another in legal custody on civil process, such person so offending \^' ' shall, on conviction, be punished [as prescribed in section 4310 of this Code.] (a.) §4481. (4413.) (4375.) Attempt to rescue. If any person shall attempt to rescue another in legal custody on criminal process, such person so 1172 PART IV.—TITLE L—DIVISION VIII.

Crimes and offenses against the public justice.

offending shall, on conviction, be punished by confinement in the common jail of the county for any time not exceeding six months, or by confinement and labor in the penitentiary for any time not less than one year nor longer than two years, at the discretion of this Court. §4482. (4414.) (4376.) Assisting to escape from jail. If any person shall aid or assist a prisoner, lawfully committed or detained in any jail for any offense against this State, or under any civil process, to* make his or her escape from jail, whether such escape be actually effected or not, or if any person shall convey or cause to be delivered to. such prisoner any disguise, instrument, or arms, proper to facilitate the escape of such prisoner, such person so offending shall, on conviction, be punished by confinement and labor in the penitentiary for any time not less than one year nor longer than four years..

Applied to white persons aiding a slave to escape : 15 Ga., 498-499-.-

§4483. (4415.) (4377.) Assisting to escape from custody. If any person shall aid or assist any prisoner to escape or attempt to escape from, the custody of any Sheriff, coroner, constable, officer, or other person, who shall have the lawT ful charge of such prisoner, such person so offending shall, on conviction, be punished by confinement and labor in the penitentiary for any time not less than one }^ear nor longer than five years.

Wife assisting her husband to escape from jail, convicted on sufficient evidence : 56» Ga., 44. Fact of the custody and legality of, is for the jury to determine: 56 Ga., 61..

Impeding the pursuit of a prisoner by obstructing the posse: 63>Ga. r 402, 403. §4483. (a.) Escapes, how punished. If any person or persons shall be

Acts of 1876, convicted of any offense below the grade of felony, and such person or p. ii2. persons shall escape from the " chain-gang," or from any other place of §4484. confinement or imprisonment, for the violation of any municipal,. county or State laws, and be thereafter retaken, such person or persons

/ shall be indicted asforâ mi^lemeanor, and, on conviction thereof, shall ( - //>f"/r^' be punished 4a>4êîâki gang" by a re aentcncc at least ofotrblc the *

• t erm far-which ouch poroon or poroono wac originally ocntencfid. §4483. (b.) Aiding to escape, how punished. If any person or persons

Aetsofi876, shall aid or assist, or attempt to aid or assist, a prisoner to escape, so- p. ii3. 'confined or imprisoned, as aforesaid, (he) shall be deemed guilty of a

§4483. misdemeanor, and, on conviction, shall receive a like punishment as is provided in the foregoing section, as for escape from the chain-gang. £^~ If con- 2^_ jj_. £^0 §4484. (4416.) (4378.) Escape from, penitentiary. any person ^L-^^fc- y^ -/.fined in the penitentiary shall escape therefrom, and be thereafter re- // taken, such person shall be indicted for an escape, and, on conviction,. ^'* shall be punished by imprisonment and labor in the penitentiary for

the term of four years ; and any person who shall aid or assist a prisoner confined in the penitentiary to eseape, or in an attempt to escape therefrom, shall, on conviction, receive the like punishment.

2 Whart. Cr. Law, §2612; 2 Bish. lb., §1030; 2 Bish. Cr. Proc-. r §943; 1 Arch. Cr. Pr.

and PL, 1861 ; 33 Am. R., 563.

§4485. (4417.) (4379.) Voluntary escape. If any Sheriff, coroner, constable, keeper of a jail, keeper, officer or other person employed in the

penitentiary, having any offender, guilty, or accused of, or confined for r any crime, in his custody, shall voluntarily permit or suffer such offender to escape and go at large, every such Sheriff, coroner, keeper of a jail, keeper, officer, or other person employed in the penitentiary, constable, or other officer, or person so offending, shall, on conviction, be punished by confinement and labor in the penitentiary for any time not less than two years nor longer than seven years, and shall moreover, if a public officer, be dismissed from office.

2 lb., Proc.,, ; 1 Arch. Cr. Pi> Whart. Cr. Law, §2606 ; 2 Bish. §1052 ; 2 Bish. Cr. 2941 and PL, 1862; 1 Hawley's Cr. Rep., 465. PART IV.—TITLE L—DIVISION VIII. 117a

Crimes and offenses against the public justice.

§4486. (4418.) (4380.) Refusing to receive prisoners. If any Sheriff, coroner, constable, keeper of a jail, or other officer, whose duty it is to receive persons charged with or guilty of an indictable offense, shall refuse to receive and take charge of such person or persons, every such Sheriff', coroner, constable, keeper of a jail, or other officer, so offending, shall, on conviction, be punished by confinement and labor in the penitentiary for any time not less than two years nor longer than seven

years ; and such officer shall, moreover, be dismissed from office.

§4486. (a.) Lobbying defined. Lobbying is defined to be of any per- Acts of 1878

- 9 29 - sonal solicitation of a member of the General Assembly of this State, > p- during a session thereof, by private interview, or letter, or message, or other means and appliances not addressed solely to the judgment, to favor or oppose, or to vote for or against any bill, resolution, report, or claim pending, or to be introduced in either branch thereof by any person who misrepresents the nature of his interest in the matter to such member, or who is employed for a consideration by a person or corporation interested in the passage or defeat of such bill, resolution, report, or claim, for the purpose of procuring the passage or defeat thereof. But this does not include such services as drafting petitions, bills or resolutions, attending to the taking of testimony, collecting facts, pre- paring arguments and memorials, and submitting them orally, or in writing, to a committee, or member of the Geneal Assembly, and other services of like character, intended to reach the reason of legislators. §4486. (b.) Lobbying, how punished. Any person convicted of the crime of lobbying, shall be punished by confinement in the penitentiary for a term not less than one year nor more than five years. §4487. (4419.) (4381.) Refusing penitentiary prisoners. If the keeper of a penitentiary, or other officer or person employed there, whose duty it is to receive convicts, shall fail or refuse to do so, such keeper, officer,, or other person so offending, shall, on conviction, be punished by confinement and labor in the penitent iary for any time not exceeding ten years ; and shall, moreover, be dismissed from office. §4488. (4420.) (4382.) Receiving stolen goods. If any person shall buy or receive any goods, chattels, money, or other effects, that shall have been stolen or feloniously taken from another, knowing the same to be stolen or feloniously taken, such person shall be taken and deemed to be an accessory after the fact, and shall receive and suffer the same punishment as would be inflicted on the person convicted of having stolen or feloniously taken the said goods, chattels, money, or effects, so bought or received.

Where one might be indicted as an accessory after the fact under this section : 45 569-573. Acquitted under the evidence of receiving stolen goods, knowing them to be such: 55 Ga., '221. Verdict bad, jury finding "guilty of receiving stolen goods" merely, gist of the offense being the felonious knowledge : 55 Ga., 191. Relevant admissible evidence excluded, larceny of goods, and ownership of them should be proven: 55 Ga., 296-8. What the indictment should allege : 56 Ga., 92. Under what circumstances would be an accessory before or after the fact to larceny, and when guilty of receiving stolen goods, knowing them to he such: 58 Ga., 552. Count for receiving stolen goods, knowing them to be such, can be joined in indictment, with count for simple larceny : 61 Ga., 212. Section referred to as to evidence of conviction of principal as affecting an accessory after the fact, punishment: 63 Ga., 675-678.

2 VVhart. Cr. Law, §1888 ; 2 Bish. /&.', §1092; 2 Bish. Cr. Proa, §979; 2 Arch. Cr. Pr. and PL, 1420; 26 Am. D,, 261, n ; 12 Am. R., 641.

§4489. (4421.) (4383.) If principal cannot be taken. If the principal thief or thieves cannot be taken, so as to be prosecuted and convicted, it shall be lawful to prosecute any person buying or receiving any goods, chattels, money, or effects, stolen or feloniously taken by such principal thief or thieves, knowing the same to be stolen or feloniously taken, as for a misdemeanor, and, on conviction, such person shall be 1174 PART IV.—TITLE I.—DIVISION VIII.

Crimes and offenses against the public justice.

punished as prescribed in the preceding section ; and a conviction under this section shall be a bar to any prosecution under section 4488. Section cited and construed: 46 Ga., 300. When an accessory should be indicted

under this section : 56 Ga., 92.

§4490. (4422.) (4384.) Accessory after the fact. If any person shall re- §4308. ceive, harbor, or conceal, any person guilty of a crime punishable by death, or imprisonment and labor in the penitentiary, knowing such person to be guilty, such person so receiving, harboring, or concealing, shall be taken and deemed to be an accessory after the fact, and, on conviction, shall be punished by imprisonment and labor in the peni- itentiary for any time not less than one year nor longer than three years. §4490. (a.) Harboring convicts made penal If any person shall harbor,

Actsofi876, secrete, entertain, employ or keep, or shall directly or indirectly suffer, p. lu. ' or permit to be harbored, secreted, entertained, employed, or kept, in or about his house or premises, any escaped convict from the penitentiary, or any chain-gang of this State, or any county thereof, knowing such party to be an escaped convict, such person so offending shall, if such convict be under sentence for felony, be held and deemed guilty of a felony, and, on conviction thereof, before any Court having jurisdiction, shall be punished by imprisonment and labor in the penitentiary, not less than one or than four years and if such escaped convict be more ; under sentence for any misdemeanor below the grade of felony, such person so harboring, secreting, entertaining, employing or keeping such convict, or permitting the same to be done as herein provided, shall be held and deemed guilty of a misdemeanor, and, on conviction, shall be punished as prescribed. in section 4310 of the Code. §4491. (4423.) (4385.) .Compounding crimes. If any person shall take

' §3055. or receive any money, goods, chattels, lands, or other reward, or promise to compound, or shall, for any cause, compound any crime or offense punishable with death or imprisonment and labor in the penitentiary, such person so offending shall, on conviction, be punished by imprisonment and labor in the penitentiary for any time not less than one year nor longer than five years.

Verdict of guilty of, not sustained by the evidence : 50 Ga., 152. Money paid with-

out an illegal agreement to stop the prosecution, could not be recovered back : 55 Ga,, 235.

2 Whart. Cr. Law, §2505; 2 Bish. lb., §646 ; 2 Arch. Cr. Pr. and PL, 1852. §4492. (4424.) (4386.) Compounding penalties. If any person, inform-

(a) Acts of in g or prosecuting under pretense of any penal law, shall compound 1865-6, p. with the offender, or direct the suit or information to be discontinued, unless it be by leave of the Court where the same is pending, such person so offending shall, on conviction, [be punished as prescribed in section 4310 of this Code.] (a.) §4493. Conspiracy to defraud State or counties. [If any two or more shall conspire or to defraud, cheat, or illegally obtain

Crimes and offenses against the public justice.

with any person or persons, in or out of office, to cheat or defraud, or Art Artsoi l872, ~' K illegally obtain from the State of Georgia, or any county of this State, p ' any property of any kind, described in the preceding section, belonging to said State or county, under the control or possession of said officers as such, such person shall be guilty of a felony, and, on conviction thereof, shall be punished by imprisonment and labor in the penitentiary of this State for a term not less than two nor more than ten years.] (b.)

§4495. Conspiracy by legislators. [All the provisions of the two pre- (c) Acts <>f 1872, '-' ceding sections are extended to members of the General Assembly in p " this State, conspiring, or agreeing by fraud, bribery, or other unlawful means, with other members of the General Assembly, or persons not members of the General Assembly, to procure the passage of laws to defraud the State of Georgia, or any county thereof, or any public officer of said State or county, of any property, real or personal, or otherwise, as described in section 4493, and such persons mentioned in this section, guilty of violating the provisions of this section, which shall extend to all persons engaged in such conspiracy, are hereby declared to be guilty of a felony, and shall be punished as prescribed in the two sections which precede this.] (c.) §4496. Conspiracy, when complete. [The offenses described in the three «a) Acts of

1S72, - 25, preceding sections shall be complete when the conspiracy is effected, p and shall be punished, whether the same be carried into effect or not.] (d.)* §4497. (4425.) (4387.) Conspiracy. If any twO or more persons shall §3796. conspire or agree, falsely and maliciously, to charge and indict any innocent person of a crime, who is accordingly, indicted and acquitted, such person so conspiring, and each and every one of them, shall, on conviction, be punished by imprisonment and labor in the penitentiary for any time not less than twelve months nor longer than five years.*

§4498. (4426.) Enticing away apprentices. [If any two or more per-

3 p ' sons under the preceding section, person be a witness, ' any may made Jfjjf" and no statements made by him or her, on such trial, shall be given in evidence against him or her, except upon an indictment for perjury.] (b.) §4500. (4428.) Illegal employment of servants. [If any person, by himself or agent, shall be guilty of employing the servant of another, [under

^Conspiracy, law of, generally: 2'Whart. Cr. Law, §2287; 2 Bish. lb., §172; 2 Bish.

€r. Proc., §202; 3 Gr. Ev., ; 2 Arch. Cr. Pr. and PL, 1829 ; 2 Hawley's Cr. Rep , 23 g89 ;

22 Am. P., 719 ; 28/392; to defraud: 1 Hawley's Cr. Rep., 103; by corporation officers: Thomp. Off. Corp., 489. Combinations among laborers: Woods' Master and Servant, §400. Conspiracy to control wages of laborers: 28 Am. D., 507-512, n. Evidence: See notes to Code, §§3775, 3796. 1176 PART IV.—TITLE I.—DIVISION VIII.

Crimes and offenses against the public justice.

(c) Acts of a written contract, which shall be attested by one or more witnesses]^ 1866, pp. (c.) during for 153, 154. the term which he, she or they may be employed, know- Acts of 1873 ing that such servant was so employed, and that his term of service p. 20. was not expired; or, if any person or persons shall entice, persuade, or §1872. decoy, or attempt to entice, persuade or decoy any servant to leave his employer, either by offering higher wages, or in any other way whatever, during the term of service, knowing that said servant was so employed, shall be deemed guilty of a misdemeanor, and, upon conviction ' ffifcri t J /ff x#^ thereof, shall be fined any sum not more than two hundred dollars, or be confined in the common jail of the county, in the discretion of the Court, not to exceed three months. <£a. # * Sufficient indictment as to, previous contract, who is a servant: 44 Ga., 328. What an accusat on for should state: 46 Ga., 624. Section cited: 53 Ga., 355-6. See note to Code, $1872. Combinations among laborers: Woods' M. and S., $400; 28 Am. D., 507-512, n.

§4501. (4429.) (4388.) Barratry defined. Common barratry is the offense of frequently exciting and stirring suits and quarrels between individuals, either at law or otherwise.

2 Bishop Crim. Law, $85; 2 Whart. lb., $2391 ; 2 Bish. Cr. Proa, $98. Q*"*^"^/ §4502. (4430.) (4389.) Punishment. Any person who shall be found o. V^* and adjudged a common barrator, vexing others with unjust and vexa- J tious suits, shall, on conviction, b3 punished by a fine not exceeding five hundred dollars; and if the offender belongs to the profession of the law, he shall also be disqualified from practicing in the future. §4503. (4431.) (4390.) Embracery. Embracery is an attempt, whether successful or not, to influence a jury corruptly to one side by promises^ persuasions, entreaties, money, entertainments, and the like. Every embracer who shall procure, or attempt to procure, a juror to take money, gain or profit, or shall corruptly influence, or attempt to influence, a juror by persuasions, promises, entreaties, or by any other means, shall, on conviction, be punished by imprisonment and labor in the penitentiary for any time not less than one year nor longer than four years. And the juror convicted of taking money, gain or profit, or of being corruptly influenced as aforesaid, shall be punished by confinement and labor in the penitentiary for any time not less than two years nor longer than five years, and shall moreover be forever disqualified to act as a juror.

2 Bishop Cr. Law, $371 ; 3 Gr. Ev., $100 ; 2 Bish. Cr. Proa, $344; 2 Arch. Cr. Pr. and PI., 1666.

§4504. (4432.) (4391.) Malpractice by Justices of the Peace and others. /Acts of 1865 [Any [Ordinary, or member of any board of commissioners, or County 6, pp. 233, Judge, or] Justice of the Peace, who shall be charged with malpractice

of 1878, in office, or with usinoj oppression or tyrannical partiality, or with willfully refusing or failing to preside in or hold his Court at the reg-

) Acts of ular terms thereof, or when it is his duty under the law to do so, or PP ' 223, 224 with using any other means to delay or avoid the due course or pro-

• ceeding of law, or with any other conduct unbecoming the character of an] (b.) upright magistrate, or who shall willfully and knowingly demand more cost than he is entitled to by law, in the administration and under color of his office, may be indicted; which indictment shall sp°ciallv set forth the merits of the complaint, and a copy thereof be served on the defendant before the same is laid before the grand jury; and the prosecutor and the Justice, and their witnesses, shall have the right of appearing and being heard bjfore the grand jury; which indictment, if found true by the grand jury, shall, as in other cases, be tried by a petit jury; and if the defendant be convicted, he shall be punished by fine or imprisonment in the common jail of the county, or PART IV.—TITLE L—DIVISION VIII. 1177

Crimes and offenses against the public justice.

both, at the discretion of the Court, and shall moreover be removed from office, if still in office.

What the indictment should set forth : 45 Ga., 555. Notaries Public, ex officio Justices

of the Peace, are liable to indictment under this section : 4G Ga., 208. Judicial officer acting within his jurisdiction, without malice or corruption, not responsible for errors of judgment: 53 Ga., 675. Indictment, and not presentment, the proper proceeding: 54 Ga., 653. Presumptions are in favor of the defendant until the evidence determines

Court should not charge of to the : otherwise ; the law the puuishment jury 57 Ga., 421-423.

2 Bish. Cr. Law, £950 ; 2 Whart. lb., $2513 ; 2 Arch. Cr., Pr. and PL, 1364; 2 Bish. Cr- Proa, £819.

§4505. Dockets to be kept, and laid before grand jury. [All Justices ofActsofisso

pp - 76, the Peace and Notaries Public Avho are ex officio Justices of the Peace in:?' this State, shall keep separate dockets of all causes, civil and criminal, f disposed of by them, which dockets shall show the actual disposition i87i^pp° of each case, and the amount of costs collected in each case and from 46 jf' t "f 1873 whom ; and it shall be the duty of said Justices of the Peace, and No- p. 32. taries Public, who are ex officio Justices of the Peace, to lay said dockets before the grand juries of their respective counties on the first day of each session for their inspection. Justices of the Peace and Notaries Public who are ex officio Justices of the Peace, who have been elected or appointed since the previous session of the grand jury, shall, at the time of exhibiting their dockets, also report to the grand jury whether their predecessors in office have delivered to them the copies of the Code and Acts of the General Assembly, which .they have received from the State as required by law, and if said predecessors in the office of Justice of the Peace, or Notaries Public who are ex officio Justices of the Peace, have withheld or detained those books, then the grand jur}^ shall make a special presentment against such person or persons withholding or detaining such books, under section 4474 of the Code of Georgia. Said dockets shall also contain .an itemized bill of costs charged or collected in each case entered on such docket, whether civil or criminal. Said bill of costs shall also show for what officers, and for what service, each item of cost is charged; and a failure to comply with the provisions of this section, or making a false entry or return of any matter, shall be malpractice in office, for which the defaulting Justice of the Peace or Notary Public, who is ex officio a Jus- tice of the Peace, shall be tried and punished as prescribed in the preceding section (4504) of this Code, and precedence shall be given to the trial qf such prosecutions over all other cases, civil and criminal, by * all the Courts of this State having jurisdiction.] (a.) A?/? ^ *A §4506. (4433.) (4392.) Threatening letters. If any person shall know- ^^^^^^^

ingly send or deliver any letter or writing, threatening to accuse an- /frj/ r^A /f'fc ' other person of a crime, with intent to extort money, goods, chattels, or/ /] / kill murder -#^?. other valuable thing ; or threatening to maim, wound, or such person, or any of his family, or to burn or otherwise destroy or injure his or her house, or other property, real or personal, though no money, goods, chattels, or other valuable thing, be demanded, such person so offending shall, on conviction, be punished by imprisonment and labor in the penitentiary for any time not less than two years nor longer than five years.

2 Bishop Cr. Law, §1175; 2 Bish. Cr. Proc, §1024; 2 Arch. Cr. Pr. and PL, 1060.

§4507. (4434.)- (4393.) Extortion defined, Extortion shall consist in any public officer's unlawfully taking, by color of his office, from any

* The tribun il having charge of county matters must furnish these dockets, and when full, Justices and Notaries must return them, with papers, to the (Jlerk of Superior Court. See Aets of 1880-1, p. 84. 1178 PART IV.—TITLE I.—DIVISION VIII.

Crimes and offenses against the public justice.

person, any money or thing of value that is not due to him, or more than his due.

Only public officers, de jure or de facto, can be convicted of extortion : 56 Ga., 385.

2 Bish. Cr. Law, £376 : 2 Bish. Cr. Proc, #357 ; 2 Arch. Cr. Pr. and PL, 1368. §4508. (4435.) (4394.) Fine and dismissal. Any public officer who shall, by himself, his deputy, agent, or other person employed by him, be guilty of extortion in demanding and receiving other and greater fees than by law are allowed him; or shall by color of his office, take from any person any money or other thing of value that is not due to him, or more than his due, such officer shall be subject to indictment, and, on conviction, shall be punished as prescribed in section 4310 of this Code, and shall, moreover, be dismissed from office. §4508. (a.) Attorney-General receiving fees, how punished. It shall not Acts of 1878 be lawful for the Attorney-General of this State to charge, demand or -9, p. 157. receive, any fee, perquisite or compensation, other than his salary, in any case in which the State is a party, or in any manner interested, which case has arisen, or been commenced, since the adoption of the Constitution of 1877, or which may hereafter arise or be commenced. And any Attorney-General violating the provisions of this section, shall be guilty of extortion, and, upon conviction thereof, shall be imprisoned in the penitentiary for any time not less than two, nor more than twenty years, and shall moreover be removed from office, and forever disqualified from holding any office of honor, profit or trust in this State.

§4509. (4436.) (4395.) Other offenses against public justice. Any other Acts of offense against public justice not herein provided for, shall be pun- 1865-6, p 233. ished [as prescribed in section 4310 of this Code.] (a.) §4510. (4437.) (4396.) Mutiny in penitentiary. If any prisoner in the penitentiaiy shall assail, oppose, or resist any officer of the penitentiary, or any member of the guard, with any weapon, or implement calculated to cause death or serious bodily injury, such prisoner, so offending, shall be deemed guilty of mutiny, and on conviction thereof, shall be punished by an additional term of imprisonment and labor in the penitentiary, not less than two years nor longer than five years, at the discretion of the Court, to be computed from the expiration of the term of imprisonment and labor to which such prisoner shall have been previously sentenced. §4511. (4438.) (4397.) Instigating mutiny. If any person shall persuade, entice, or instigate any prisoner to mutiny, such person so offending shall be guilty of a misdemeanor, and on conviction, shall be punished by confinement and labor in the penitentiary for any time not less than two years nor longer than five years, at the discretion of the Court, to be computed, if a prisoner in the penitentiary, from the expiration of the term of imprisonment and labor for which he shall have been previously sentenced. / §4512. (4439.) (4398.) Receiving stolen goods from a negro. If any free white person shall buy or receive any money, goods, chattels, or other effects, from any negro or free person of color, that has or have been stolen, or feloniously taken, knowing the same to have been so. stolen or feloniously taken, such person, so offending, shall be deemed and taken to be an accessory after the fact, and being convicted thereof, shall be punished by imprisonment and labor in the penitentiary for any time not less ^than one year nor more than four years. :

PART IV.—TITLE L—DIVISION IX 1179-

Offenses against the public peace and tranquility.

NINTH DIVISION OFFENSES AGAINST PUBLTC ~ THE PEACE AND TRANQUILITY.^ %

Section Section. 4513. Unlawful assemblies. 1522. Printer, witness. 4514. Riot. 4523. Truth proved. 4515. Aifrays. 4544. Forcible entry. 4516. Dueling, challenging. 45-'5. Forcible detainer. 4517. Seconds. 4526. Punishment. 4518. Dueling, fighting. 4-527. Carrying deadly weapons. 4519. Officers not preventing. 4528. Prohibited at public places. 4520. Charging the " coward. 4528. (a.) Pointing weapon at another 4521. Libel. 45-9. Other offenses.

§4513. (4440.) (4399.) Unlawful assemblies. If two or more persons assemble for the purpose of disturbing the public peace, or committing any unlawful act, and do not disperse on being commanded to do so by a Judge, Justice, Sheriff, constable, coroner, or other peace officer, such person so offending shall be guilty of a misdemeanor, and, on conviction, shall be punished as prescribed in section 4310 of this Code.

§4514. (4441.) (4400.) Riot. If any two or more persons, either with (a) Acts of " 5 6 p " or without a common cause of quarrel, do an unlawful act of violence, J|5 ' or any other act in a violent and tumultuous manner, such persons so offending shall be guilty of a riot, and, on conviction, shall be punished [as prescribed in section 4310 of this Code.] (a.) Demand for trial by one of those engaged in a riot, the others continuing their case 37 Ga., 618. Construction of this law: 20 Ga., 839. No new trial where the charge of the Court was correct, and there wassjme evidence to support the verdict: 28 Ga., 192.

There was no riot where two men fall to fighting each other : 22 Ga., 488. It cannot be committed unless as manj^ as two act in the commission of a common intent: 30 Ga., 27. Where severance on trial of persons charged with a riot is within the Court's discretion : 34 Ga., 10. Sufficient evidence of identity and misnomer in name of one appearing on trial of the other separately, did not vitiate: 38 Ga., 184. Motion in arrest of judgment refused, the facts set up by defendant not appearing from the Court's records: 42 Ga,, 2u3-205. May be tried separately, and the acquittal of one did not operate as an acquittal of the other: 51 Ga., 375. Severance and conviction of all, joint motion for a trial to costs : 52 661-7. case, but new unobjected ; Ga., A weak the verdict not disturbed, no written defense or plea being filed : 60 Ga., 127-8. Two of three convicted under sufficient evidence : 64 Ga., 361.

2 Whart. Cr. Law, 4^2475 ; 2 Bish. lb., $1096 ; 2 Bish. Cr. Proc, £992; 3 Gr. Ev., §216 ; " 2 Arch. Cr. Pr. and PL, 1697. " Horning serenade is : 35 Am. R., 210.

§4515. (4442.) (4401.) Affrays. An affray is the fighting of two or (a) Acts of 5 " 6, p- more persons in some public place, to the terror of the citizens and dis- ^g turbance of the public tranquility. Persons so offending shall be indicted, and, on conviction, shall be punished [as prescribed in section 4310 of this Code] (a.) and it shall be considered a great aggravation ; of this offense if any contempt or disobedience of the magistrate, or other peace officer commanding the peace" shall be proved. Two indicted, both must be convicted or neither; words alone will not constitute, T but words with actsw ill; one aiding, assisting and abetting guilty as principal : 13 Ga., 322. 2 Wharf. Cr. Law, §2494; 2 Bishop lb., §32-37;' 2 Bish. Cr. Proc, §16; 2 Arch. Cr. Pr. and PL, 1709; 30 Am. R., 86.

§4516. (4443.) (4402.) Dueling. If any person shall deliberately challenge, by word or writing, the person of another, to fight with sword, pistol, or other deadly weapon, or if any person so challenged shall accept the said challenge, in either case, such person so giving, or sending, or accepting any such challenge, shall, on conviction, be punished by a fine not less than five hundred dollars, and be imprisoned in the common jail of the county for any time not exceeding six months. Or, if the jury should so recommend, such person shall, in addition to the fine herein imposed, b3 punished by imprisonment and labor in, '

1180 PART IV—TITLE I.—DIVISION IX.

Offenses against the public peace and tranquMity.

the penitentiary for any time not less than one year nor longer than two years.

2 Whart. Cr. Law, §2674 ; 2 Bish. lb., §310; 2 Bish. Cr. Proc, §302; 1 Arch. Cr. Pr. and PL, 833. §4517. (4444.) (4403.) Seconds, same punishment. If any person shall knowingly and willfully carry and deliver any written or printed challenge, or verbally deliver any message or challenge to another, to fight

! with sword, pistol, or other deadly weapon, or shall consent to be a sec-

i ond in any such duel or combat, such person so offending shall, on conviction, be punished in the same manner as prescribed in the preceding section. An indictment alleging the consent in this State sufficient, where subject to special demurrer before trial, if it allege the offense on a day subsequent to the finding of the

grand jury : 58 Ga., 332. §4518. (4445.) (4404.) Act of fighting a misdemeanor. If any person shall be engaged in the act of fighting a duel", with sword, pistol, or other deadly weapon, either as principal or second, such person shall be guilty of a high misdemeanor, and, on conviction, shall be punished by imprisonment and labor in the penitentiary for any time not

1 less than four years, nor longer than eight years : Provided, nevertheless, that if death should ensue from such duel, then all the parties, both principals and seconds, shall be guilty of murder, and suffer the punishment of death, but the punishment may be commuted in conformity

j with the provisions of section 4323 of this Code.

§4519. (4446.) (4405.) Officers knowing and not preventing . If any Jus- tice, or other public officer bound to preserve the public peace, shall ' have knowledge of an intention in any person or persons to fight with any deadly weapon, and shall not use and exert his official authority to arrest the parties and prevent the duel, by binding over the parties concerned to keep the peace toward each other, such Judge, Justice, or other peace officer so offending, shall, on conviction, be dismissed from office. §4520. (4447.) (4406.) Proclaiming as "coward" etc., in print. If any

(a) Acts of -person or persons shall, in any newspaper, or hand-bill, written or 56 ' P * printed, publish or proclaim any other person or persons as a coward 233 or cowards, or use any other opprobrious and abusive language for not

* accepting a challenge or fighting a duel, such person or persons so

; offending shall, on conviction, be punished [as prescribed in section 4310 of this Code.] (a.) §4521. (4448.) (4407.) Libel defined. A libel is a malicious defamation,

: §2974. v expressed either by printing or writing, or signs, pictures or the like, '^^a/^**-^5**^- tending to blacken the memory of one who is dead, or the honesty, j/~„ jw« virtue, integrity, or reputation of one who is alive, and thereby ex- /' pose him or her to public hatred, contempt, or ridicule. Every i person convicted of this offense, shall be punished as prescribed in section 4310 of this Code.

1 . What indictment sufficient: 4 Ga., 14. What charges are libellous, and when not necessary to insert innuendoes; proof as to: 6 Ga., 276. Section cited: 56 Ga., 553; 61/435.

; ; ; 2 Whart. Cr. Law, §2535 2 Bish. lb., §897 2 Bish. Cr. Proc, §781 3 Gr. Ev., §164 ;

2 Arch. Cr. Pr. and PL, 1027 ; 2 Hawley's Cr. Rep., 381; Code, §5018 ; corporation indictable: 31 Am. P., 663. §4522. (4449.) (4408.) Printer, a ivitness. In all prosecutions under the two preceding sections of this division, the printer or publisher of a newspaper, handbill, or other publication containing the offensive or

criminal matter, shall be a competent witness ; and if such printer or publisher shall refuse to testify in the cause, or to give up the jeal name of the author or person authorizing and causing the publication, so that he may be indicted, then such printer or publisher shall be deemed :

PART IV.—TITLE I.—DIVISION IX. 1181

Offenses against the public peace and tranquility. and considered the author himself, and be indicted and punished as such; and may, moreover, be punished for a contempt of the Court, as any other witness refusing to testify. §4523. (4450.) (4409.) The truth 'is evidence. In all cases of indict- 52979. nient for a libel, or for slander, the person prosecuted shall be allowed to give the truth in evidence.

§4524. (4451.) (4410.) Forcible entry. Forcible entry is the violently §4085 etseq. taking possession of lands and tenements with menaces, force and arms, and without authority of law.

The prosecutor dispossessed, or from whom possession detained, a competent witness : 24 Ga., 191. The force must be private, not public, and when the entry under legal process by landlord was not within the terms of this section : 61 Ga., 496. 2 Whart. Cr. Law, $2013; 2 Bish. lb., $463; 2 Arch. Cr. Pr. and PL, 1128.

§4525. (4452.) (4411.) Forcible detainer. Forcible detainer is the vio-§4085e* seq. i lently keeping possession of lands and tenements with menaces, force and arms, and without authority of law. Section cited: 43 Ga., 433.

§4526. (4453.) (4412. ) Punishment for forcible entry or detainer. Any person who shall be guilty of a forcible entry, or a forcible detainer, or both, may be indicted, and, on conviction, shall be punished by fine or imprisonment in the common jail of the county, or both, at the discretion of the Court ; and the Court before whom the conviction takes place shall cause restitution of possession of the premises to be made to the party aggrieved : Provided, always, that if the party forcibly detaining lands and tenements, or those under whom he claims, shall have been in peaceable possession of the same for the space of three years or more, immediately preceding the filing of the complaint, such person or party shall not be subject to the penalties of this section, nor shall restitution of possession be made : and provided, also, that the only questions to be submitted to and determined by the jury in trials for forcibly entry, or forcible detainer, shall be the possession and the force, without regard to the merits of the title on either side. §4527. (4454.) (4413.) Carrying concealed weapons. Any person ha v- Act of \&zi,<2-*^*£>. ing or carrying about his person, unless in an open manner and fully 8 F*"^*cP Acfiof ig£i'

- 269. exposed to view, any pistol (oxcopt horooman s piotol), dirk, sword in a -% p. cane, spear, bowie knife, or any other kind of knives manufactured jBssefp. and sold for the purpose of offense and defense, shall be guilty of a 233 - misdemeanor, and, on conviction, shall be punished as prescribed in section 4310 of this Code.

Constitutionality of the Act of 1837 : 1 Ga., 243 251. .Act of 1851-2 did not repeal section 4570: 12 Ga., 1. If weapons carried so that others could see and know it was a pistol or weapon, it was no violation of the Act of 1851-2, although some part of it concealed from view: 32 Ga., 225. Otherwise if so far concealed, although partially exposed to view, so that it could not be readily seen and recognized as a pistol : 32 Ga.,

292. Carrying concealed weapons is not always in law evidence of malice : 33 Ga., 303. When cannot prove defendant's custom to carry weapons exposed to' view, on a charge of having concealed weapons at a certain time and place : 36 Ga., 242. As to the strict enforcement of this part of the criminal law: 31 Ga., 420-421. Army repeaters and horseman's pistols on the same footing, but not when carried concealed: 44 Ga., 221-2.

When no evidence of motive in putting pistol in defendant's pocket : 46 Ga., 294. The facts their view of the Court should not express an opinion on the ; counsel can present law and the facts to the jury: 10 Ga., 213; 56/503. Sufficient evidence to sustain the verdict of guilty: 52 Ga., 40. Continuance, evidence : 61 Ga.,481. When mainspring of the weapon disabled so as to prevent its discharge, was no excuse: 61 Ga., 417. Where no legal jeopardy, and newly discovered evidence not a ground for new trial 60Ga.,601. 2 Bish. Cr. Law, $120; 2 Whart. 76., §2496; 25 Am. R., 561-3, n. Pistols, one un-

loaded and one without tube, not weapons : 36 Am. R., 15.

§4528. Deadly weapons not to be carried to public places. No person in (a) Acts of this State is permitted or allowed to carry about his or her person, any ActsSf iUs dirk, bowie knife, pistol or revolver, or any kind of deadly weapon to -9, p. 64. any Court of justice, or any election ground or precinct, or any place of 1182 # PART IV.—TITLE L—DIVISION IX.

Offenses against the public peace and tranquility.

public worship, or any other public gathering in this State, except

militia muster-grounds ; and if any person or persons shall violate any portion of this section, he, she or they shall be guilty of a misdemeanor, and, upon conviction, shall ba punished by a fine of not less than twenty nor more than fifty dollars for each and every such offense, or imprisonment in the common jail of the county not less than ten nor more

than twenty days, or both, at the discretion of the Court : Provided, that this section shall not apply to any Sheriff, deputy Sheriff, coroner, constable, marshal, policeman, or other arresting officer or officers in this State or their posses, acting in the discharge of their official duties.

Indictment sufficient, and this law not unconstitutional: 53 Ga., 472. What is a

deadly weapon : 30 Ga., 138 ; 41/155 ; 15/223.

* 1 fc - \"'' * " §4528. (a.) Pointing iveapon at another. Any person who shall inten- - Actsyf '1880 Moiially point or aim a gun or pistol, whether loaded or unloaded, at .-1, p. ioi. another, not in a sham battle by the military, and not in self-defense, or in defense of habitation, proparty or person, or other instances standing upon like footing of reason and justice, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished as prescribed in section 4310 of this Code. §4529. (4455.) (4414.) Other offenses against public peace. All other of- (a) Acts of fenses against the public peace, not provided for in this Code, shall be 6 P ' m ' prosecuted and indicted as heretofore, and the punishment in every such case, shall be [as prescribed in section 4310 of this Code.] (a.)

Section cited: 53 Ga., 127.

**&- PART IV.—TITLE I.—DIVISION X. 1*83

Offenses against the public morality, health, police, etc.

TENTH DIVISION.

OFFENSES AGAINST THE PUBLIC MORALITY, HEALTH, POLICE, ETC. 5

Section. Section. 4530. Bigamy. 4559. Violating quarantine 4531. Punishment on married person. 4560. Vagrants. 4532. On unmarried person. 4561. Common rogues. 4533. Incest. 4562. Nuisances. 4534. Adultery. 456-. (a.) Illegal diplomas. 4535. Lewdness. 4562. (b.) Illegal purchase from tenaw., 4536. Lewd houses. 45-2. (c.) Illegal purchase of seed cotton. /&7' _ f yW, 4537 Disorderly houses. 4562. (d.) Cutting bagging from cotton. S 4537. (a.) Use of obscene pictures, etc. 4562. (e.) Charge for weighing cotton, 4537. (b.1 Obscene prints, etc. 4562. (f.) Fire hunting prohibited. 4538. Gaming houses. 4562. (g.) Speculating in county orders 4539. Gaming in liquor shops. 4563. Disinterring bodies. 4540. Gaming tables. 4564. Bastardy. 4540. (a > Sale of liquor to minors prohibited. 4565. Retailing without license. 4540. (b.) Furnishing deadly weapons to mi- 4565. (a.) Sale of domestic wines. nors prohibited. 4566. Illegal marrying. 4540. (c.) Employing minors in bar-rooms. 4567. Marrying white and colored 4541. Gambling. 4568. Illegal voting. 4542. Gaming with minors. 4568. (a.) Other cases. 4543. Minors not to play billiards. 4569. Buying or selling votes. 4544. Gaming with clerks and bank officers. 4570. Sale of liquor on election daysT 4545. Players, witnesses. 4571. Minors voting. 4546. Judge's charge. 4572. Adultery with negroes, 4547. Suspected houses. 4573. Whipping wife. 4549. Sale of lottery tickets forbidden. 4574. Interfering with religious worship. 4549. (a.) Tickets in gift enterprises. 4575. Retailing near church. 4549. (b.) Carrying on lotteries. 4576. Vending near camp-grounds. 4549. (c.) Turning wheels. 4577. Police at places of worship. 4549. (d.) Penalty. 4577. (a.) Intervening with schools. 4550. Unwholesome provisions. 4577. (b.) Carrying liquor to church, etc. 4551. Unwholesome bread, etc. 4578. Running freight trains on Sunday 4552. Unlawful sale of kerosene. 4579. Violating Sabbath. 4553. Test of kerosene. 4580. Hunting on Sunday 4554. Other illegal oils. 4581. Illegal bathing. 4555. Sale of naptha. 4582. Fines for Sabbath-breakers. 4556. Sale of uninspected oils. 4583. Bonds in case of vagrancy. 45^7. Kerosene defined. 4584. Attorney or Solicitor, duty in such cast 4557. (a.) Sale of poisons regulated. 4585. Water and light on railroads. 4557. (b.) Book of sales to be kept. 4585. (a.) Use of explosive oils for.jidden. : 4557. (c.) Physicians excepted. 4586. Equal accommodation of races. 4557. (d.) Penally. 4586. (a.) Police of railroads. 4558. Spreading small-pox. 4586. (b.) Criminal negligence. ir~*"ft'

bigamy. Polygamy, or bigara}T §4530. (4456.) (4415.) Polygamy and , shall consist in knowingly having a plurality of husbands or wives at the same time.

Not necessary to prove marriage where defendant admits it : 11 Ga., 54. What proof would have made out a case of bigamy: 20 Ga., 703. Principal in the first and second degree: 34 Ga., 275. When indictment should set forth that the first marriage was lawful, or by alleging facts to that effect; bigamy under section 1667: 40 Ga., 244. Proof of previous marriage without the production of the license, or showing that the person executing the same was an ordained minister: 50 Ga., 150. Second marriage of a bigamist is void, and the woman can testify against him on a criminal trial: 61 Ga.. 305. As to persons of color who were living together at the date of the Act of 1866, see section 1667 : 63 Ga., 222; 65/159.

2 Whart. Cr. Law, §2616; 3 Gr. Ev., £203 ; 2 Arch. Cr. Pr. and PI., 1807; 2 Hawlev's Cr. Rep., 13, 163, 608, 612; 21 Am. P., 225; 34/2. Proof of marriage: 1 Hawlev's Cr. Rep., 64; general note after Code, $1710, and note to §3772. May be convicted of bigamy, although the second marriage is void under §4567 : 1 Hawley's Cr. Rep., 72; 22

Am. R., 531 ; see 36 Am. R , 17. Religious belief of polygamist no defense: 8 O., 145. Void divorce: 12 Am. R., 274, n.

§4531. (4457.) (4416.) Punishment, if before marriage. If any person or persons within this State, being married, do or shall at any time hereafter marry any person or persons, the lawful husband or wife being alive, and knowing that such lawful husband or wife is living, such person or persons so offending shall, on conviction, be punished by confinement at labor in the penitentiary, for any time not less than two years nor longer than four years, and the second marriage shall be void; but five years' absence of the husband or wife, and no information of the fate of such husband or wife, shall be sufficient cause of acquittal of the person indicted ; and in every case the issue of such second marriage, born before the commencement of any prosecution for 75 :

1184 PART IV.—TITLE L—DIVISION X.

Offenses against the public morality, health, police, etc.

polygamy, or within the ordinary time of gestation thereafter, shall, notwithstanding the invalidity of such marriage, be considered as legitimate. §4532. (4458.) (4417.) Punishment, if before unmarried. If any man or woman, being unmarried, shall knowingly marry the wife or husband of another person, such man or woman shall, on conviction, be punished by imprisonment and labor in the penitentiary, for any time not less than one year nor longer than three years.

What. evidence necessary to sustain this charge: 53 Ga., 574.

§4533. (4459.) (4418.) Incest. If any person shall commit incestuous fornication or adultery, or intermarry within the Lgvitioal" degrees of /-.^. •>- consanguinity, or affinity, such person so offending shall, on conviction, be punished by imprisonment and labor in the penitentiary, for any time not less than one nor longer than three years, and such marriage shall be void.

As to sufficiency of indictment, date of it, proof of marriage by defendant's admis-

sions : 11 Ga., 53-54. Not a joint offense, and one person may be convicted of it: 44

Ga., 209. No penalty for an attempt to commit this crime : 53 Ga., 126 ; but see Acts of 1877, p. 22-23. 2 Whart. Cr. Law, §2669; 2 Bishop lb., §24; 2 Arch. Cr. Pr. and PI., 1827; 19 Ant. P., 69\ §4534. (4460.) (4419.) Adultery and fornication. Anj^ man and woman

§§1667, 4572. who shall live together in a state of adultery or fornication, or of adul- ^ ei an(^ f°rn i cation, or who shall otherwise commit adultery or forni- (a) Acts of - 1865-6, p. cation, or adultery and fornication, shall be severally indicted, and, on 2 ' 3 - conviction, such offenders shall be severally [punished as prescribed in section 4310 of this Code;) (a) but it shall, at any time, be within the power of the parties to prevent or suspend the prosecution and the punishment by marriage, if such marriage can be legally solemnized.

Admissions of defendant as evidence of marriage: 11 Ga., 54; 50/151. An indict-

ment against a single person for adultery and fornication, is good : 18 Ga., 264. "Wrongful expression of opinion on the evidence by the Court: 25 Ga., 477. Court charged too strongly under the evidence: 20 Ga., 438. Sufficient indictment for adultery and fornication, alleging the accused was a married man and the offense committed with a single woman: 33 Ga., 56, Suplt. Indictment against the man and woman jointly, subject to demurrer: 41 Ga., 582-3. Where indictment against an

unmarried woman should have been for adultery and fornication : 44 Ga., 344. Con- tinuance should have been granted for the absence of a witness, conviction being on circumstantial evidence: 44 Ga., 451. The jury can under an indictment for seduc-

tion, with proper proof, find defendant guilty of adultery or adultery and fornication :

48 Ga., 193. Also of fornication : 54 Ga., 389. Acquittal on charge for fornication and

adultery not a good plea of autrefois acquit to an indictment for bastardy : 58 Ga., 170.

Can be no conviction for fornication on an indictment for rape : 60 Ga., 381-2.

Fornication: 2 Whart. Cr. Law, £2667 ; 2 Bish. lb., §25; 2 Arch. Cr. Pr. and PI.,

1824; 1 Hawley's Cr. Rep., 159. Adultery : 2 Whart. Cr. Law, ?2643; 2 Bish. lb., §§11-

23 ; 2 Arch. Cr. Pr. and PL, 1818 ; 24 Am. R., 124 ; 30/144 ; 35/258. Proof of marriage 1 Hawley's Crim. Rep., 34; noteto Code, §3772, and general note after §1710. Acting

in good faith under advice of J. P., no defense : 1 Hawley's Cr. Rep., 42. §4535. (4461.) (4420.) Lewdness and tippling houses. Any person who 3 (&) Acts of shall be guilty of open lewdness, or any notorious act of public inde- 5 "6 p- ' of open tippling ^g cency tending to debauch the morals, or keeping houses* on the Sabbath day or Sabbath night, shall, on conviction, be [punished as prescribed in section 4310 of this Code.] (a.)

Sufficient indictment for keeping open the doors of a tippling house on the Sabbath ;

proof : 3 Ga., 18. Jury are to decide whether the house was a tippling house, and kept

open on Sunday : 19 Ga., 426. As to the power of a city over : 44 Ga., 206-7. Charging in an indictment that the act was done on a day other than the Sabbath, invalidates it: 51 Ga., 426. City council cannot try for keeping open a tippling house on the Sabbath, and conviction there no bar to indictment in the Superior Court: 53 Ga., 74. Collec-

tion of costs where convicted : 48 Ga., 335. Plea of former conviction in the City Court '- - of Atlanta against the same charge in the Superior Court: 53 Ga., 448. Where part of

a* tippling house used as a bed-room, yet the door must be kept closed on Sunday : 65. Ga., 568. House where the " Albany Glee Club" met and drank on Sunday held a

tippling house : 63 Ga., 319. : . f

PART IV.—TITLE I.—DIVISION X. 1185

Offenses against the public morality, health, police, etc.

a2 Whart. Cr. Law, £2931-2; Bish. lb., £26; 35 Am. R, 357. b Hvasion of law by forming a society : 1 Hawley's Cr. Rep., 447; see 2 lb., 385.

§4536. (4462.) (4421.) Lewd houses. If any person shall maintain ra^ Acts of

6 p ' for of fornication ' and keep a lewd house, or place the practice or adul- ^Hf" tery, either by himself, or herself, or others, he or she so offending shall, on conviction, be punished [as prescribed in section 4310 of this Code.] (a.) On indictment for maintaining and keeping a lewd house, the general reputation of the women frequenting there admissible; punishment not excessive: 57 Ga., 390. Indictment not alleging that the lewd house was kept for the purpose of fornication, was not good in arrest of judgment; plea of misnomer in name should have been stricken : 60 Ga., 656. Need not show the master of the lewd house kept it for profit 46 Ga., 26. Only necessary to show defendant contributed to and aided directly in maintaining and keeping it : 53 Ga., 241. 2 Whart. Cr. Law, ^2392; 1 Bish. lb., #1037; 2 Bish. Cr. Proc, ^104; 2 Arch. Cr. Pr. and PL, 1785.

§4537. (4463.) (4422.) Disorderly houses. Any person who shall keep (a) Acts of 6 p " and maintain, either by himself, or herself, or others, a common, ill- i§5f~ ' governed and disorderly house, to the encouragement of idleness, gaming, drinking, or other misbehavior, or to the common disturbance of the neighborhood or orderly citizens, such person so offending shall, on conviction, be punished [as prescribed in section 4310 of this Code.] (a.) .When disturbance must be general, of common occurrence and not of one person alone : 36 Ga., 280. Secreting of a criminal by the person keeping the house, as a cir- cumstance toward the house a as disorderly: 54 Ga., 217.

2 Whart. Cr. Law, £2392 ; 1 Bish. lb., £1046; 2 Bish. Cr. Proc, §272; 2 Arch. Cr. Pr. and PI., 1766. One room sufficient: 19 Am. R., 469. Canvas tent mav be : 28 Am. R, 432.

§4537. (a.) Use of obscene pictures, etc. If any person shall bring, or Acts of 1878 ~ 9 p163 - cause to be brought, into this State for sale or exhibition, or shall sell - or offer to sell, or shall give away or offer to give away, or having possession thereof, shall knowingly exhibit to another any indecent pic- torial newspaper tending to debauch the morals, or any indecent or obscene book, pamphlet, paper, drawing, lithograph, engraving, daguerro- type, photograph, picture, or any model, cast, instrument or article of indecent and obscene use, or shall advertise any of said articles or things for sale, by any form of notice, printed, written or verbal, or shall manufacture, draw or print, any of said articles, with intent to sell or expose, or to circulate the same, such person so offending shall be guilty of a misdemeanor, and, on conviction thereof, shall be punished as provided in section 4310 of the Code of this State.

§4537. (b.) Obscene prints, etc. If in a public place, on any fence or Acts of i8V8 ~ 9 163 - wall or other surface contiguous to the public street, or on the floor or ' p- ceiling, or on the inner or outer wall of any closet, room, passage, hall, or any part of any hotel, Court House, church, school, station-house, depot for freight or passengers, capitol, or other buildings devoted or open to other or like public uses, or on the walls of any out-building or other structure pertaining thereto, and frequented by the users thereof, any person shall make or cause to be made, any obscene drawing or picture, or obscene writing or print, liable to be seen of others passing or coming near the same, such person, so offending, shall be guilty of a misdemeanor, and, on conviction, shall be punished as provided in section 4310 of the Code of this State. §4538. Gaming houses and imprisonment. If any (4464.) (4423.) ; fine ( a ) Acts of 6 p- person shall, by himself, servant, or agent, keep, have, use, or maintain ^- -

a gaming house, or room, or shall, in any house, place, or room, occu-^I' t pied by him, permit persons, with his knowledge, to come together and /oV play for money, or any other valuable thing, at any game of faro, loo/ brag, bluff, or any other game played with cards, or shall knowingly rent or let any house or room, with the view or expectation of the same 1186 PART IV.—TITLE L—DIVISION X.

Offenses against the public morality, health, police, etc.

being used for such purpose, such person so offending shall, on conviction, be punished [as prescribed in section 4310 of this Code.] (a.) Defendant having possession of a house where gaming occurred, not relieved by proof

it was rented out before the gaming : 29 Ga., 263.

2 Bish. Cr. Pipe, §487 ; 2 Whart. Cr. Law, §2407 ; 1 Hawley's Cr. Rep., 234. §4539. Gaming in liquor shops prohibited. [If any retail liquor dealer or c ^ erk in the employ of such retail liquor dealer, shall (a) Acts of knowingly 1872, p. 26. permit, or allow any minor or minors to play at any game of cards, or Actsof i&g, a £* any game whatsoever, in the playing of which cards or dice are used, in the house in which such retail liquor dealer carries on his business of retailing spirituous liquors, or in any rooms connected therewith, and under the control of such retail liquor dealer, such retail liquor dealer, or his clerk so offending, shall, on conviction, be punished as provided in section 4310 of this Code.] (a.) §4540. (4465.) (4424.) Gaming tables. If any person shall, by himself,

Acts of 1853 or servant, or agent, keep or employ any faro table, E table, or A B

'?-' ^ ^able> roulette table, or any other table of like character, and shall, a ?lffiQ p. 59. 'either by himself, servant, or agent, preside or deal at any faro table, (a> Actsof or use any E O, or A B C, or roulette table, or other table of like ,p 233." ' character, for the purpose of playing and betting at the same, such Acts of 1880 person, or his servant, or agent so offending, shall, on conviction, be -l, p. 73. punished [as prescribed in section 4310 of this Code.] (a.)

A faro table : 62 Ga., 396; 23/10. And need not show to convict that things of value

were bet at a faro table : 60 Ga., 145 ; 62/164. Keno ; what is a gaming table : 40 Ga., 689.

J4540. (a.) Sale of liquors to minors prohibited. No person or persons, fi875, by himself or another, shall sell, or cause to be sold, or furnished, or

^•j -^/«y^?A'cts of 1877. permit any other person, or persons, in his, her, or their employ, to sell, or furnish any minor or minors, spirituous or intoxicating, or ,£ malt liquors of any kind, without first obtaining written authority rom the parent or guardian of such minor, or minors, and such person or persons, so offending shall, on conviction, be punished as prescribed in section 4310 of the Code.

Bar-keeper, whether owner or employee, is within statute: 1 Hawley's Cr. Rep., 482. If defense is that defendant was misled and imposed on, he must prove it beyond a reasonable doubt: lb. Druggist selling on physician's prescription: lb.. Ill, 480. ^Not necessary to allege or show that defendant knew vendee was a minor: lb., 471. """"Person making change for sales made by others, and for the sale in question, guilty as

if selling : 2 Hawley Cr. Rep.,. 396. Indictment for selling liquor at a certain time and

place to "certain minors, the names of whom to the grand jurors are unknown," good : Hawley's Cr Rep., 476. /<¥

of the Code : Provided, that nothing herein contained shall be construed as forbidding the furnishing of such weapons under circumstances justifying their use in defending life, limb or property. §4540. (c.) Penalty for employing minors ill bar-rooms. It shall not be

Acts of 1880 lawful for any person keeping or carrying on either by himself or by -l, p. 135. another a bar-room, or other place where spirituous liquors are sold by retail to be drunk on the spot, to employ any minor in such bar-room or other place, and any one violating the provisions of this section shall be guilty of a misdemeanor, and, on conviction thereof, shall be punished in one or more of the methods prescribed in section 4310 of this Code.

Evasion of law by entering into partnership with employee : 32 Am. R., 429.

Act of 1847, §4541. (4466.) (4425.) Gambling generally. If any person shall play 2 an(l t; of faro, loo, Ac£of ?859 De for money, or other thing of value, at any game p. 59. brag, bluff, three-up, seven-up, poker, vingtun, euchre, or any other FART IV.—TITLE I.—DIVISION X. 1187

Offenses against the public morality, health, police, etc.

or games played with cards, or shall play f A ctsof game and bet for money, or ^ . ' ' P other thing of value, at any E or A B C table, or at other table of 233." like character, or at roulette, or rouge et noir, or chuckluck, or anv similar game of chance played with dice, or cards, or balls, or shall'bet at any game of nine-pins or ten-pins, or at any other number of pins, or at any billiard or pool table, such person, so offending, on conviction, shall be punished [as prescribed in section 4310 of this Code.] (a.)

Gambling with negroes : 8 Ga., 453. Playing and betting with cards for money or other things of value, one offense : 13 Ga., 396. Such as chips : 51 Ga., 300. Any time within two years : 18 Ga., 736. Leading question asked : 20 Ga., 153. As to the indictment showing whether the person with whom the playing and betting was a white or black man : 22 Ga., 101. Criticised : 33 Ga., 58, Suplt.

2 Bishop Cr. Law, $570 ; 2 Arch. Cr. Pr. and PI., 1788 ; 1 Hawley's Cr. Rep., 232; 20

Am. R., 609 ; notes to #2753. §4542. (4467.) (4426.) With minors. Any person keeping any table, (a^Acts of 6, p ' or dealing at any game, as above specified, who shall permit any minor Jl^ to play and bet thereat, or any person of full age who shall gamble with a minor at any of the games above specified, shall, on conviction, be punished [as prescribed in section 4310 of this Code.] (a.) §4543. Minors may not play billiards or ten-pins. [Any owner or owners, (a) Acts of

1869, Uo " or persons controlling any billiard table, or ten-pin alley, that shall or p ' may permit any minor to play or roll on the same, without the consent of the parent or guardian, shall, on conviction of the same, be fined in a sum not to exceed one hundred dollars for each and every offense, or imprisonment twenty days, or both, at the discretion of the Court.] (a.) When indictment for, was not demurrable as being in the alternative, "play or " roll : 45 Ga., 11. Burden of proof that parent did not give consent, is on the State :

50 Ga., 103. Honest mistake of minor's age : ; judgment of conviction reversed 53 Ga., 229. Section cited and construed with the law in regard to the selling liquor to minors under the Act of 1875 : 56 Ga., 603.

§4544. (4468.) (4427.) With clerks and bank officers. The provisions of section 4542 shall extend to all persons gaming with the officer or agent of any bank entrusted with any of its funds, or any clerk in any post- office in this State. §4545. (4469.) (4428.) Players competent ivitnesses. On the trial of any person for offending against sections 4538, 4540, 4541, 4542 and 4544 of this division, any other person who may have played and betted at the same time or table, shall be a competent witness, and be compelled to give evidence ; and nothing then said by such witness shall at any time be received or given in evidence against him in any prosecution against the said witness, except on an indictment for perjury, in any matter to which he may have testified.

Section referred to and construed : 62 Ga., 396-399.

§4546. (4470.) (4429.) Judge to give gambling in charge. It shall be the duty of the Judges of the Superior Courts of this State, at the opening or commencement of every Court, to give in charge to the grand juries, respectively, the substance of the sections contained in this Code relative to gambling. §4547. (4471.) (4430.) Suspected houses may be broken open. It shall be lawful for any lawful officer, with legal authority, to break open suspected rooms or houses, where it is commonly known that gaming is carried on, and to take any persons found gaming, and bind or cause them to be bound over to the next Superior Court to be held in and for the county where such offenses may be committed ; and if such person so found gaming, shall fail or refuse to give security for his or their ap- perance at Court, to answer for such offenses, then it shall be lawful to commit such person or persons to jail. §4548. Repealed by Acts of 1880-1, p. 63. §4549. Penalty for selling tickets in lottery or gift enterprises. It shall not :

1188 PART IV.—TITLE I.—DIVISION X.

Offenses against the public morality, health, police, etc.

Acts of 1880 be lawful for any person or persons in this State, either by himself or 62 p -. - his agent, to sell or offer for sale, or to procure for or furnish to any person or persons, any ticket, number, combination, or chance, or anything representing a chance in any lottery, gift enterprise or other similar scheme or device, whether such lottery, gift enterprise, or scheme shall be operated in this State or not, and each and every person who shall violate the provisions of this section shall be guilty of a misdemeanor, and upon conviction, shall be punished as prescribed in section 4310 of this Code.

Lotteries: 2 Wbart. Cr. Law, §2429 : 2 Bish. lb., £945 ; 2 Arch. Cr. Pr. and PL, 1774; Code, §5021.

§4549. (a. ) Tickets in gift enterprises, etc. [It shall not be lawful for

(&\ Acts of any person in this State, either by himself or his agent, to sell or dis- 8, EP" ose of any lottery ticket, or any certificate or ticket, in any gift enter- J2g 1 P prise, and each and every person so offending shall be guilty of a misdemeanor, and, upon conviction, for the first offense, shall be fined in a sum of not less than one hundred dollars, nor more than five hundred dollars, and, upon conviction of a second and all succeeding violations of the latter part of this section, he, she, or they, so offending, shall be fined in a sum not exceeding one thousand dollars, or imprisonment in the county jail six months, or both, in the discretion of the Court.] (a.) §4549. (b.) Carrying on, prohibited. It shall not be lawful for any

Acts of 1877, person, or persons, either by themselves, servants, agents, employees, p. 112. or others to keep, maintain, employ, or carry on any lottery in this

: State, or other scheme or device for the hazarding of any money or

valuable thing : Provided, that nothing herein shall affect any of the J laws now existing against gaming.

§4549 (c.) Lottery wheels, turning of, prohibited. It shall not be lawful

of 1877, for any person, or persons, either by themselves, servants, agents, em- I Acts p.H2. ployees, or others, to turn any lottery wheel, or to draw therefrom any balls, numbers, letters, or other thing indicating the decision of any j chance or hazard of the said lottery, or in anywise to be present, aiding and assisting in the working, turning, or drawing of the said lottery.

§4549. (d.) Penalty for violating these provisions. ' Any person offend- i Actsofi877, ing against the provisions of the two foregoing sections, or either of t>. 112. them, shall be guilty of a misdemeanor, and, on conviction, shall be punished by a fine of not less than five hundred, nor more than one thousand dollars, or be imprisoned for a time not to exceed one year. §4550. (4472.) (4431.) Selling unwholesome provisions. Any butcher

(a) Acts of or other person selling the flesh of a diseased animal, or other un- 1865-6, p. wholesome provisions, shall be indicted, and, on conviction, shall be

' " /? , punished [as prescribed in section 4310 of this Code.] (a.) ^^ chjC a^£-*£ - §4551. (4473.) (4432.) Unwholesome bread or drink. Any baker, brewer, m (a) Actsof distiller, selling bread, i.(r merchant, grocer, or other person, unwholesome &7ix 6 P ' drink, or pernicious and adulterated liquor, knowing them to be so, Ca-+-d- ^*-^S' /- shall be indicted, and, on conviction, shall be punished [as prescribed JL/v^7**«*'y/&!-r r i n section 4310 of this Code.] (a.) '/*- F* §4552. Penalty for unlawful sale of kerosene oil. [The standard for ker-

Actsof osene oil for sale in this State, shall be one hundred and ten degrees re selling, offering for sale, or giving 398°39?' ^ ^ es ^' an0- any Person convicted of away kerosene oil of a fire test less than one hundred and ten degrees, shall be fined in the sum of not less than one hundred dollars nor more than five hundred dollars; one-half of the fine to go to the informer, one-fourth to the inspector, and the remainder to the county treasury Provided, that cases arising under this section shall be tried before the Superior Courts of this State.] (a.)

vs. A sufficient accusation in the City Court of Atlanta for this offense : Downing the State, Pamphlt., September term, 1880, p. 45. — : ; /

PART IV.—TITLE I.—DIVISION X. 1189

Offenses against the public morality, health, police, etc.

§4553. Test of kerosene, how made. [The following is the test of safe (to Acts of kerosene oil: Heat a small quantity of water in a basin until its tem-ggg^Sf perature is above one hundred and ten degrees Fahrenheit; then add

cold water slowly ; at the moment the scale of a thermometer placed in the basin marks one hundred and ten degrees, pour a table-spoonful of the oil to be tested into the water; thus the oil is brought to one hun-

dred and ten degrees ; then pass a wisp of burning paper over the oil if the escaping vapor catches fire, the oil is dangerous; but if not, then it is safe.] (b.) §4554. Other illegal oils, penalties. [No person shall mix for sale naptha ictsof 18/ ~» p - shall sell, or offer for sale, or keep for sale, naptha, under any assumed name for illuminating purposes, shall, for each offense, upon conviction thereof, be liable to the same penalties provided for in section 4552, except where the same is used in making illuminating gas by Doty's or other stationary gas machine.] (d.) §4556. Sale of uninspected oils prohibited. [No person shall sell, or keep fei Acts of 18/ p " for sale, or in storage, any crude or refined petroleum, naptha, kerosene, ~' earth-rock, coal, machine, or illuminating oil, the products of petroleum earth-rock, or coal oil, in this State, without having the same inspected and approved by an authorized inspector; and any person violating the provisions of this section shall ba liable to the same penalties provided and set forth in section 4552 of this Code.] (e.) §4557. Meaning of kerosene. The term kerosene shall be construed to (f)_ \cts of 18/2, p 00 ' mean petroleum, coal, earth-rock oil, or any of their products, for illu- ' minating or machinery purposes.] (f.) §4557. (a.) Regulations of sale of poisons. It shall be unlawful for any A.ctsofi876, person to furnish by retail any poison enumerated in Schedule "A" PJ' and " B," as follows, to-wit Schedule "A."—Arsenic and its preparations, Corrosive Sublimate, y^Sf^ ",~ Sf4*~* White Precipitate, Red Precipitate, Bini Odide of Mercury, Cyanide of ^*^£2Z^ /uJ2£ Potassium, Hydrocya ic Acid, Strychnia, and all other poisonous vege- ^y>+ j£" jjL^ ** table alkaloids and their salts, Essential Oil of Bitter Almonds, Opium /^l' £s^A ' and its preparations, except Paregoric and other preparations of Opium * >._ ** m <^-"r *" containing less than two grains to the ounce: • ** Schedule "B." — Aconite, Belladonna, Colchicum, Conium, Nux /^%^^r- Vomica, Henbane, Savin, Ergot, Cotton Root, Cantharides, Creosote, Digitalis, and their pharmaceutical preparations, Croton Oil, Chloro- form, Chloral Hydrate, Sulphate of Zinc, Mineral Acids, Carbolic Acid and Oxalic Acid Without distinctly labeling the bottle, box, vessel or paper in which said poison is contained, and also the outside wrapper or cover thereof, with the name of the article, the word " Poison," and the name and place of business of him or her who furnishes the same, nor unless upon due inquiry it be found that the person to whom it is delivered is aware of its poisonous character, and represents that it is to be used for a legitimate purpose. §4557. (b.) Druggist shall keep book of sales No licensed or registered Acts of 1876, p " 24 ' druggists or pharmaceutist shall sell or deliver any of the poisons in- eluded in Schedule " A " without, before delivering the same, causing ~

1190 PART IV.—TITLE L—DIVISION X.

Offenses agaLst the public morality, hv, ldi. police, etc.

Actsofi876, an entry to be made, in a book kept for that purpose, stating the date 24- p - of the delivery, the name and address of the person receiving the same, the name and quantity of the poison, the purpose for which it is represented by such person to be required, and the name of the dispenser. Such book shall be always open for inspection by the proper authorities, and be preserved for reference for at least five years. §4557. (c.) Physicians excepted. Nothing in the preceding sections Acts of 1876, shall apply to the dispensing of poisons, in not unusual quantities or

24 - p - doses, upon the prescriptions of practitioners of medicine.

§4557. (d. ) Parties offending, hgw punished. Any person violating the Acts of 1876, provisions of sections 4557 (a) and 4557 (b) shall be guilty of a mis- p ' 2 ' demeanor, and, upon conviction thereof, in any Court in this State, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding six months in jail, or both, in the discretion of the Judge pronouncing the sentence. # §4558. (4474.) (4433.) Spreading small-pox. Any physician, surgeon, (a)Actsof or other person, willfully endeavoring to spread the small-pox, without 6 P ' 233.° ' inoculation, or by inoculation with matter of the small-pox, or using any other inoculation than that called vaccination, unless by special commission or authority from the Court of Ordinary of the county where the small-pox shall make its appearance, shall be indicted, and, on conviction, shall be punished [as prescribed in section 4310 of this Code.] (a.) §4559. (4475.) (4434.) Violation of quarantine. Any person who shall come into this State, by land or water, from any place infected with a con- f i865-6fp.° tagious disease, and, in violation of quarantine regulations, shall be indi- 233. cted in an}^ county in this State in which he may be found, and, on convic-

tion, [shall be punished as prescribed in section 4310 of this Code ] (a.) §4560. (4476.) (4435.) Vagrants defined. [All persons wandering or Act of 1847, strolling about in idleness, who are able to work and have no property 2 all idle, Act 'of ?788, to support them; persons leading an immoral or profligate c, p. 852. life, who have no property to support them, and who are able to work,

and who do not work ; all persons able to work, having no property to support them, and who have not some visible and known means of a fair, honest and reputable livelihood; all persons having a fixed abode, who have no visible property to support them, and who live by stealing, or by trading in, bartering for. or buying stolen property, and all

-6, p. 234. professional gamblers living in idleness, shall be deemed and consid-

ered vagrants, and shall be indicted as such ; and it shall be lawful for any person to arrest said vagrants, and have them bound over for trial to the next term of the Superior Court or any Court having competent jurisdiction, and, upon conviction, they shall be fined or imprisoned, or sentenced to wr ork on the public works or roads for not longer than a year, or shall, in the discretion of the Court, be bound out to some person for a time not longer than one year, upon such valuable consideration as the Court may prescribe, the person giving bond in a sum not exceeding three hundred dollars, payable to said Court, Acts of 1876, and conditioned to clothe and feed, and provide said convict with med- p. 39. ical attendance for and during said time: Provided, that the defendant may, at any time before conviction, be discharged upon paying costs and giving bond and security in a sum not exceeding two hundred dollars, payable to said Court, and conditioned for the good behavior and industry of the defendant for one year.] (b.)

Conviction under sufficient evidence, not interfered with : 27 Ga., 262. Otherwise

where the evidence was insufficient : 38 Ga.. 574 ; 52/574. As to the five classes of vagrants, and it was error without sufficient allegations in the indictment, to permit tes-

timony introduced showing defendant a gambler : 51 Ga., 264-7.

§4581. (4477.) (4436.) Having possession of false keys, picklocks, etc. If any person shall be apprehended, having upon him or her any pick- PART IV.—TITLE 1.—DIVISION X. 1191

Offenses against the public morality, health, police, etc. lock, key, crow, bit, or other instrument, with intent to break and enter into any dwelling-house, warehouse, store, shop, coach-house, stable, or out-house, in order to steal or commit any other crime, or shall have upon him any pistol, hanger, cutlass, bludgeon, or other offensive weapon, with intent to commit crime upon any person, which, if committed, would be "punishable by death or confinement in the penitentiary; or shall be found in or upon any dwelling-house, warehouse, store, shop, coach-house, stable, or out-house, with intent to steal any goods or chattels, every such person shall be deemed a rogue and a vagabond, and, or conviction, shall be punished by confinement and labor in the penitentiary for any time not less than one year nor longer than five years, or by imprisonment in the common jail of the county, at the discretion of the Court. §4562. (4478.) (4437.) What nuisances are indictable. Any person who shall erect, or continue, after notice to abate, any nuisances which tend to annoy the community or injure the health of the citizens in gen- erator to corrupt the public morals, shall be indictable and punishable [as prescribed in section 4310 of this Code.]

Law of this section referred to as to its sufficiency : 18 Ga., 530.

Generally: 2 Whart. Cr. Law, £2362 ; 1 Bish. lb., §1029; 1 Bish. Cr. Proc, §860; 3

Gr. Ev., §184 ; 2 Arch. Cr. Pr. and PI., 1751. §4562. (a.) Penalty for granting diplomas illegally. It shall be unlaw- Acts of 1880 ful for the faculty or officers of any medical college in the State of"****- 101, <*<*^Cs. • «* Georgia to grant or issue a diploma to any student of medicine, or^* < « other person, unless said student or other person shall have attended/'' ^*~«£~ <£-£-. two or more full courses of study in seme regularly chartered medical ^ca^d

etc. §4562. (b.) Purchase of farm, products, from tenants, Whenever any Acts oi 1876> person shall buy any corn, or cotton in the seed, from persons residing p. n5. on the land of another, as tenant or laborer of such other person, or from the agent of such tenant or laborer, when said tenant or laborer had no right to sell, after notice of such disability to sell by such tenant or laborer has been given in writing by the landlord, or employer, to such bu}^er, and the notice is in fact the truth, then the person so buying, after such notice, shall be guilty of a misdemeanor, and, on indictment, or a presentment and conviction, shall be punished as prescribed in section 4310 of the Code.

§4562. (c.) Illegal purchase of seed cotton. It shall not be lawful for Acts f 18g0 1 p.175. any person to buy or sell any seed cotton after sunset and before sun-- , rise, nor to receive or deliver any such cotton after sunset and before sunrise, which has been sold or to be sold in pursuance of said delivery. And any person convicted of the offense of buying, or selling, any seed cotton after sunset and before sunrise, or receiving or delivering any such cotton after sunset and before sunrise, which has been sold, or is to be sold, in pursuance of said delivery, shall be punished as prescribed in section 4310 of the Code. §4562. (d.) Penalty for cutting bagging frem cotton. If any person orActsofisso 1 p- 178 - persons owning or controlling any cotton compress in this State, shall" ' cut or take without the owner's consent, any bagging from the heads 1192 PART IV.—TITLE I.—DIVISION X.

Offenses against the public morality, health, police, etc.

or sides of any bale of cotton which they may have in charge for the purpose of compressing the same, shall be guilty of a misdemeanor, and shall be punished as is prescribed in section 4310 of this Code. §4562. (e.) Illegal charge for weighing cotton. It shall not be lawful for Acts of i8so any scalesman, salesman, or other person, in any of the cities, towns, -i, p. 89. or villages of this State, engaged in the business of weighing cotton bales, to charge or receive more than ten cents per bale for weighing the same, nor to charge or receive for reweighing any bale of cotton, which has once been taxed ten cents for weighing, more than five cents for such reweighing. And any person violating the provisions of this section, and any merchant, factor, or other person in whose employment said person may be at the time of such violation, provided the same is done with the consent or knowledge of said factor, merchant, or other person, shall be guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding five hundred dollars, or by imprisonment in the common jail of the county not exceeding six months. §4562. (f.) Illegal fire-hunting. It shall be unlawful for any person

Acts of 1880 or persons to hunt with a gun by fire-li^ht or kill any deer so hunting -l, p. 142. \yy fire-light in the night-time in this State, except upon his or their own premises, without the full permission and consent of the owner of the lands upon which he or they may hunt. And any person or persons violating this section, upon conviction thereof, shall be punished as prescribed in section 4310 of this Code. §4562. (g.) Speculating in county orders, etc. It shall be unlawful for Acts of 1878 any Ordinary, county commissioner of roads and revenue, tax collector, -9, p- '9. Sh er iff Clerk of Superior Court, treasurer, school commissioner, or any ; other public officer of any county in this State, to buy up at a discount, or in any manner to speculate in, what are known as "county orders," or in "jury scrip," or in any other order or scrip which is to-be paid out of any public fund of this State, or of any county in this State, and any public officer violating this section shall be held and deemed guilty of a misdemeanor, and upon conviction thereof shall be punished as prescribed in section 4310 of this Code, and shall moreover be removed from office, if still in office. §4563. (4479.) (4438.) Disinterring or purchasing dead bodies. If any

(a) Acts of person or persons shall remove the dead body of a human being from 6 p * 23? ' ^ ne grave or other place of interment, or from any vault, tomb, sepulcher, or from any other place, without the consent of the friends of said deceased, except malefactors executed under the sentence of the law, for the purpose of selling or dissecting the same, or from mere wanton- ness, such 'person or persons so offending shall be punished [as prescribed in section 4310 of this Code;] (a.) and any person who shall receive or purchase such dead body, knowing it to have been disinterred : or removed from any tomb, vault or sepulcher, or such other place, for

, the purpose aforesaid, shall, on conviction, receive the same punishment.

, §4564. (4480.) (4439.) Putative father refusing to give security. If any

§§4762, 4765. putative father of a bastard child or children shall refuse or fail to give

' /c i — / # Z-- security for the maintenance and education of such child or children, ' ' ' when required to do so in terms of the law, such putative father shall be indicted for a misdemeanor, and, on conviction of the fact of being the father of. such bastard child or children, and of his failure or refusal to give such security, shall be punished [as prescribed in section 4310 Ct of °f *hi s Code ; and if fined,] (a.) said fine shall be paid over to the Or- is65H) p 233. dinary of the county, to be by him improved and applied from time- to time, as occasion may require, for the maintenance and education of such child or children. PART IV.— TITLE I.—DIVISION X. 1193

Offenses against the public morality, health, police, etc.

Indictment should charge defendant, father of the child : 3 Ga., 534. When sufficient: 5 Ga., 491. On indictment of the father for refusing to give the bond, lie cannot avoid

theconviction by tendering it afterwards : 23Ga.,230. There was no allegation in the in-

dictment that the woman was a single woman, yet evidence that she was, admissible : 28 Ga., 19. When indictment will not lie in one county where child begotten and horn in another: 29 Ga., 424. A legal bond given to appear before a Justice of the Peace

where arrested under a bastardy warrant : 45 Ga.. 173-4. Section cited: 47 Ga., 451.

Offense is in failing to give security : 58 Ga., 19G; McCombs vs. State, Pamphlt., Feb., 1881, 8. Acquittal for fornication and adultery no bar to proceeding for bastardy p. ;

affidavit for arrest may be made by the mother of the child : 58 Ga., 170-174.

§4565. (4481.) (4440.) Retailing spirits without license. If any person Act of 1838, shall keep a tippling shop, or sell by the quart without the license, Actsonsai ~4 ^- and taking the oath prescribed in this Code, or sell by retail -k* > p- quantities Icgq than- one quart, any wine, brandy, rum, gin, whisky, or/fa- -*?, <* J**» other spirituous liquors, or any mixture of such liquors, in any house, (££. booth, arbor, stall, or other place whatever, without licei

Qrdi - Eiary of the county, or without license from the cor} v ' y ities of any town or city, where, by law, authority to grant licenses is 233? °' /t-f\ vested in the corporate authorities of such towns or cities, such person, ^*-*J^Ts so offending, shall be guilty of a misdemeanor, and, on conviction, «r*Hy * * [shall be punished as prescribed in section 4310 of this Code (a) g«**« * * *» :] -ali Provided, no person shall be liable to indictment in the Superior Courts §§531, 1423/^ ^ 7 of this State for a violation of this section when said person has been already tried by the corporate authorities for the same offense. Testimony of a Clerk of the Inferior Court to prove that no license was granted to defendant, and as to the indictment negativing, the retailing being done in a corporate town : 13 Ga., 435; 62/426. The defendant alleging he retailed with license, alleges an affirmative and must prove it : 17 Ga., 290; 34/531 ; 63/620. Tried by the local law of a municipal corporation : 14 Ga., 354. Selling by clerk, as to his responsibility^ and that of his employer : 15 Ga., 346. License obtained from the county, as to power of the corporation by subsequent ordinance as to: 5 Ga, 447. Where must take out license from the city: 32 Ga., 211. A sufficient indictment for : 32 Ga., 595. City can not pass an ordinance in conflict with the State law as to : 29 Ga., 56. As to a druggist selling without license : 34 Ga., 533. Selling liquor bv the quart, must obtain license and take the oath before the Ordinary : 60 Ga., 634. Section cited : 62 Ga., 426. When retailing by one's servant in his presence without license was held the act of the employer : 63 Ga., 349. Cannot retail without license because of the refusal by the proper authorities to grant it, remedy is by mandamus : 65 Ga., 437.

2 Wharf. Cr. Law, £2434 ; 2 Bish. 76., £1124. Defendant liable if sold by his wife in his presence: 1 Hawley's Cr. Rep., 465; or by his agent: lb., 471 ; but see p. 468.

Whether ale, cider, lager beer is intoxicating is question of fact, not of law : 1 Hawley's

Cr. Rep., 490, 496. Evasion by forming associations : 2 Hawley's Cr. Rep., 385; see 1 lb., 447. Selling cigarettes for ten cents each and giving whiskey to buyer is selling whiskey : 2 Hawley's Cr. Rep., 404. In prosecution therefor, State may press reluctant i witness with searching questions: 1 Hawley's Cr. Rep., 404.

§4565. (a.) Domestic wines, manufacture allowed. It shall not be unlaw- Acts of 1877, p 33 ful for any person who shall manufacture, or cause to be manufactured, - *^ y **'c in this State, any wine from grapes, the product of any vineyard in*^ -**-«— -" • -/J*- this State belonging to such person, and to sell, or offer to sell, any-// "'- '• where in this State, such wine at wholesale, or in quantities not less than one quart ; all laws and parts of laws, contained in sections 529, 530, 531, 540, 541, 1419, 1420, 1421, 1422, 1423, 1424, 4565, or elsewhere, or any provision, or provisions of law, requiring any license or oath, or other regulation or condition, prohibition, or penalty to the contrary notwithstanding. * §4566. (4482.) (4441.) Marrying illegally or without license. If any (a) Acts of " join together 5 6, p ' minister of the gospel, Judge or Justice of the Peace, shall JIj in matrimony any man and woman, without a license or publication of banns, as provided by law, or where either of the parties within his own knowledge shall be an idiot or lunatic, or subject to any other disability, under this Code, which would render such contract or marriage improper and illegal, such minister, Judge, or Justice of the Peace shall be guilty of a misdemeanor, and, on conviction, [shall be punished as prescribed in section 4310 of this Code, and if fined,] (a) 1194 PART IV—TITLE L—DIVISION X.

Offenses against the public morality, health, police, etc.

said fine, when collected, shall be paid over to the Ordinary of the county where the offense was committed, for the use of the common school fund of said county. §4567. (4483.) Miscegenation prohibited. [If any officer shall knowingly

(i>) Acts of issue any marriage license to parties, either of whom is of African de- 1865-6, p. scent, and the other a white person, or if any officer or minister of the gospel shall marry such persons together, such officer or minister of the gospel shall be guilty of a misdemeanor, and, on conviction thereof, shall be punished as prescribed in section 4310 of this Code.] (b.) See: 60Ga.,204. See notes to #§1708. 4530; 30 Am. R., 131. Indictable here, although married in State permitting: 32 Am. R., 549, 690. §4568. (4484.) (4442.) Voting more than once. If any person shall hereafter vote more than once at any election which may be held in any county of this State, or vote out of the county in which he may usually reside, for members of the Legislature or for county officers, unless authorized by law, such person shall be indicted for a misdemeanor, and, on conviction, shall be punished by imprisonment and labor in the penitentiary for any time not less than one year nor more than two years. Tndictment under this section, conviction, and new trial asked for newly discovered

evidence : 54 Ga,, 578. Crimes in reference to voting: 2 Whart. Cr. Law, §2768; 2 Arch. Cr. Pr. and PL. 575', j 1848 ; 2 Bish. lb., §316 ; 9 Am. R.. 754 ; 20/734. By infant in good faith : 23 Am. R., 2^^<^e-c fe^c**-^ ^§4568. (a.) Illegal voting. Any person who shall hereafter vote at J^Actsof 1878 any such election, who has not resided in this State one year next \/f-£.~ ~ 9, p * 157, j/p-0 % preceding such election ; or who has not resided six months next pre- i

ceding said election in the county in which he has so voted ; or who has not paid all taxes, which, since the adoption of the present Con- stitution of this State, have been required of him previous to the year in which said election occurs, and which he has had an opportunity of

paying agreeably to law ; or who has been convicted in any Court of competent jurisdiction, of treason against the State, of embezzlement

of public funds, malpractice in office, bribery or larceny ; or of any

, crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary, unless such person shall have been pardoned, shall be indicted, and, on conviction, shall be punished as prescribed in section 4310 of this Code. §4569. (4485.) (4443.) Buying or selling vote. If any person shall buy Act of 1840, or sell, or offer to buy or sell, a vote, or shall be in any way connected c. p. 8i9. or concernec[ j n buying or selling a vote at any election in this State, Acts of 1880 or in any county thereof, such person shall be indicted for a misdemeanor, -l, 129. p. an(j Qn Conviction shall be punished as prescribed in section 4310 of

I this Code. §4570. Penalty for selling liquor on election day. Any person who shall (a) Acts of sell, give, or furnish any spirituous, intoxicating, or malt liquors to

II 145, 146!' any person, in any quantity whatever, within two miles of any elcc- ijg ^> ^tion rec ij8£t4n this State, on days of election, either State, county, or /ti jftim P i # £ Acts of 1878 niunicipa^sna^^De/'guilty of a misdemeanor, and, upon conviction p - 29, thereof, shall be punished as prescribed in section 4310 of this Code: Provided, that nothing herein contained shall be construed to operate <£c - against prescriptions by physicians. Statute prohibiting giving away liquor on election day extends to acts of hospitality a private house: 1 Hawley's dim. Rep., 460. 4571. (4486.) (4444.) Voting by a minor. If any person under the age of twenty-one years and above the age of fourteen, shall vote illegally at any election, he shall be [punished as prescribed in section 4310 of this Code.] (a.) PART IV.—TITLE L—DIVISION X. 1195

Offenses against the public morality, health, police, etc.

§4572. (4487.) (4445.) Adultery betiveen whites and blacks, punishment (a) Acts of

18G8, p- 18 ' for. [Any white man and woman of color, or any white woman and male person of color, who shall live together in a state of adultery or fornication, or adultery and fornication, or who shall otherwise commit adultery, or fornication, or adultery and fornication, shall be indicted,^4534 - and, on conviction, such offenders shall be severally punished as prescribed rn section 4310 of this Code.] (a.) This law not in conflict with the Constitution of 1868, as to the social status of the

citizen not being subject to legislation : 39 Ga.. 321. Punishment of this crime between persons of different races greater than those of

same race, constitutional: 1 Hawley's Or. Rep., 161 ; 29 Am. R., 739.

§4573. (4488.) (4446.) Whipping ivife. If any man shall whip, beat, Act of 1857, or otherwise cruelly maltreat his wife, he shall be deemed guilty of a jj^f '( 4) misdemeanor, and, upon conviction, shall be [punished as prescribed Acts of 6 p ' in section 4310 of this Code.] (a.) On such trials the wife shall be a 233! ' competent witness * Cannot on an indictment for an assault with intent to murder, find defendant guilty of whipping his wife: 53 Ga., 113.

§4574. (4489.) (4447.) Interfering with religious worship. Any person Act of K92, ss^ who shall, by cursing or using profane or obscene language, or by be- £.{?•

ing intoxicated or otherwise indecently acting, interrupt or in any 2, p. 270. for manner disturb any congregation of persons lawfully assembled (a) Acts of divine service, shall be guilty of a misdemeanor, and, on conviction, 1865-6, p. shall be [punished as prescribed in section 4310 of this Code.] (a.) f

Legal conviction of one of four indicted for disturbing religious worship : 31 Ga.,

232. Sufficient indictment in the absence of special demurrer : 60 Ga., 464. Lawful to take a bond on Sunday where arrested for this offense: 62 Ga., 449-451. 2 Bishop Cr. Law, $296; 2 Bish. Cr. Proc, £284; 2 Arch. Cr. Pr. aad PI., 18Q6 - V? / /./2~* Hawley's Cr. Rep., 133 ; 25 Am. R., 625 ; 30/126. jjl _. *A -£«**_ £L~~**+. -/. , t W^^Z**, /fa f j §4575. (4490.) (4448.) Selling spirits within mile of church. Any per- A.c/of isos, Cj, son who shall sell, or cause to be sold for him, any spirituous or intox- y^ icating liquors, within one mile of any church or meeting-house, or other place set apart or being used for divine worship, during the time fa)*Acts w appropriated to such worship (unless the same be within an incorpo- 5 p'^* ^ "f'* // \ rated city or town), shall be guilty of a misdemeanor, and, on convic- 4w*^*//^~ m tion, shall be [punished as prescribed in section 4310 of this Code.] (a.) &&% §4576. (4491.) Vending near camp grounds. [It shall not be lawful (b) Acts of *^~/£— for any person to vend or expose to sale, during the period of divine ' ^ worship, within one mile of the place of worship, in any camp ground Jk*J**t*s*~+*~~ <* in this State, any article, commodity, or thing whatever, without the 9* 9, y^ /J? written consent of a majority of the trustees, commissioners, or owners of such camp ground, under penalty of being indicted, and, on conviction, shall be punished as prescribed in section 4310 of this Code.] (b.) §4577. Police at places of worship, how appointed. [It shall be lawful (a)_ Acts of '~ 1871 2 " 7 for the Justices of the Peace in each militia district in this State, in * p which is situated an incorporated church or camp ground, upon application in writing, signed by the trustees or members of the corporation of such church or camp ground, or other incorporate place of divine worship, to appoint three or more suitable persons to, act as a police for such place of public worship, whose duty it shall be to appre- hend all persons disturbing the congregation assembled at such place or places for religious worship, or otherwise violating the laws of this State, and immediately carry such person or persons so offending before the nearest Justice of the Peace, who shall issue a warrant for said person or persons, and proceed to take examination in such cases in manner prescribed by law.] (a.)

* As to competency of witnssses, see section 3354. Does not that section repeal the last sentence 01 this ? t As to the protection of other societies, see Acts of 1855-56, p. 272. 1196 PART IV.—TITLE I—-DIVISION X.

Offenses against the public morality, health, police, etc.

§4577. (a.) Interfering with schools. Any person who shall willfully Acts of 1880 interrupt or disturb any public school, private school, or Sunday-school -l, 144. p. j n ^jg state, or any assemblage or meeting of any such school, lawfully and peaceably held for the purpose of scientific, literary, social or religious improvement, either within or without the place where such school is usually held, shall be guilty of a misdemeanorj and, on conviction thereof, shall be punished as prescribed in section 4310 of this Code. §4577. (b.) Carrying liquor to church, etc. Any person or persons who Acts of 1880 shall carry any intoxicating liquor, except for medicinal and wine for -l, p. 152. sacramental purposes, to any place in this State where people are assembled for Divine worship; or for Sunday-school; or for a Sunday- school celebration, or day-school celebration, shall be guilty of a misdemeanor, and, on conviction thereof, shall be punished as provided in /? j,/? section 4310 of this Code. ot-cr&*+> 4&**m §4578. (4492.) (4450.) Running freight trains on Sabbath day. If any ^£^<, (a) Acts of freight trairi shall be run on any railroad in this State on the Sabbath ^86o-6, p. / ^ (]inown \ls Sunday), the superintendent of transportation of such railroad company, or the officer having charge of the business of that department of the railroad, shall be liable for indictment for a misdemeanor in each county through which such train shall pass, and, on €6* conviction, shall be for each offense [punished as prescribed in section Ttc^^y *-f^&^ 4310 of this Code.] (a.) On such trial it shall not be necessary to £ 4^£asv~^- allege or prove the names of any of the employees engaged on such -C~\x^. ^-**— train, but the simple fact of the train being run. The defendant may V/y / justify himself by proof that such employees acted in direct violation y^~- of the orders rules of : [Provided, always, that when- ^f\< and the defendant /f*£ &* ever any train on any railroad in this State, having in such train one A tS f or more cars loaded with live stock, which train shall be delayed be- i873 p 63 yond schedule time, shall not be required to lay over on the line of road or route during Sunday, but may run on to the point where, by due course of shipment or consignment, the next stock-pen on the route may be, where said animals may be fed and watered, according to the facilities usually afforded for such transportation.] (a.) And it shall be lawful for all freight trains on the different railroads in this

! Acts of 1874, State, running over said roads on Saturday night, to run through to a?. p- ' destination : Provided, the time of arrival, according to the schedule by

; which the train or trains started on the trip, shall not be later than eight o'clock on Sunday morning. §4579. (4493.) (4451.) Violating Sabbath. Any tradesman, artificer,

Act of 1762, workman or laborer, or other person whatever, who shall pursue their c. p. 853. business or work of their ordinary callings upon the Lord's day (works

(a) Acts of of necessity or charity only excepted), shall be guilty of a misde- 1865-6, p. meanor, and, on conviction, shall be [punished as prescribed in section 4310 of this Code.] (a.)

: : ; Statute cited 12 Ga., 95. Contracts on Sabbath 41 Ga., 449 ; 44/541 29/528; 59/683 ; , i' 57/179. Agency created on Sunday : 55 Ga., 448. Keeping open tippling house on

the Sabbath : 44 Ga., 205. Receiving verdict on Sunday: 49 Ga., 437. -Bail bond taken

on Sunday valid as being within the exception in this section : 55 Ga., 244 ; 62/449.

Running of street cars on Sunday in a city : 55 Ga., 126.

2 Bishop Cr. Law, 1 Smith's L. (t. 800 ; Broom's Leg. Max., 25 ; 1 Bish. ] §933; C, p.)

Cr. Proc, £812 ; 2 Arch. Cr. Pr. and PL, 1804 * 1 Hawley Cr. Rep., 596. Judicial Acts

on : 12 Am. D., 290-295, n. §4580. Hunting on Sunday, penalty. [Any person or persons who

(a^ Acts of shall hunt any kind of game with gun or dogs, or both, on the Sabbath 1873, p.39. (} a shall be guilty of a misdemeanor, and, on conviction, shall be y 5 punished as prescribed in section 4310 of this Code.] (a.) §4581. (4494.) Indecent bathing. [Any person who shall bathe in any PART IV.—TITLE L—DIVISION X. 1197

Offenses against the public morality, health, police, etc.

stream or pond of water on the Sabbath day, in view of any road or fc) Acts o* 18GG p> 154- passway, leading to or from any house of religious worship, shall be ' considered guilty of a misdemeanor, and, upon conviction thereof, shall be fined in a sum not exceeding five hundred dollars, or imprisonment in the common jail of the county, at the discretion of the Court, not exceeding six months.] (c.) §4582. (4495.) (4452.) Fines for violation of the Sabbath. All moneys arising from fines imposed for offenses, the gist of which consists in their being committed on the Sabbath day, shall be paid to the Ordi- nary of the county, to be by him distributed for the purpose of estab- lishing and promoting Sabbath-schools in the county. Where moneys arising from fines imposed for the violation of the Sabbath had not been paid to the Ordinary until after the Act of 1875, the lien of officers for insolvent costs attached thereto: 61 Ga., 377.

§4583. (4496.) (4453.) Bond in cases of vagrancy. When any person Acts of i860 prosecuted as a vagrant shall give bond and security in terms of thisP- 44 - Code, and shall violate the conditions of said bond, and that fact shall be made to appear to the Court where said indictment was found, by the affidavit of the prosecutor, or any other person, it shall be the duty of the Court to cause a scire facias to issue, calling upon the principal in said bond, and his security, to show cause at the next term of said Court why said bond shall not be forfeited, which shall be served as in

cases of bail ; on which an issue shall be made up, if desired by the

defendant, and tried by a jury ; and if it shall appear that said defendant has violated the conditions in said bond, judgment shall be awarded on said scire facias against said principal and his securities for the penalty in said bond, with costs of suit.

§4584. (4497.) (4454.) Solicitor's duty and fees. It shall be the duty Acts of i860

of the Attorney and Solicitor-General to represent the State in all suits p- 44 - on bonds as aforesaid; and he shall receive five dollars for prosecuting the scire facias, to be taxed in the bill of costs, and also five per cent, of the amount recovered on said bond.

§4585. (4498.) Water and light on railroads. [All railroad companies (a) Acts of 3 4 Pi in this State, as well as the Western and Atlantic railroad, shall keep}^ ' in each passenger car, or in any car in which passengers are transported, an adequate supply of good, pure drinking water at all hours during the day and night, and lights during the night for the use of pas-

sengers ; and upon failure thereof shall be subject to pay a fine of one hundred dollars for each and every offense. Any conductor or agent of said roads being requested by any passenger to furnish a sufficient supply of water to the passengers in each car, in the day or night, and light at night, and shall pass any depot or station without so doing, shall be liable to be indicted in any county through which said railroad runs, of which he is agent or conductor, and, upon conviction, shall be liable to the punishment prescribed in section 4310 of this Code. It shall be the duty of the Judges of the Superior Courts of this State to give the law of this section in special charge to the grand juries of their respective Courts.] (a.) oils, officer §4585. Railroads using explosive penalty. Any or employee Acts of 1874, of any railroad company, in this State, who shall light any passenger p- 9?. car, in which passengers are being transported, by burning any explosive oils, in lamps or otherwise, or shall burn such oils in such passenger cars, or any officer having charge of such passenger cars, who shall permit such burning of explosive oils, shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than twenty-five nor more than five hundred dollars, or shall be confined in the common jail of the county in which^ such conviction shall be had, not less' than thirty (30) days nor more than six months ; and such officer, or employee, '

1198 PART IV.—TITLE I—DIVISION X.

Offenses against the public morality, health, police, etc.

may be indicted in any county through which such passenger car, lighted in violation of. this section, shall pass. §4586. Carriers of passengers to furnish equal accomodations to all. [All (a) A.cts of common carriers of passengers for hire in the State of Georgia shall

' p *"" ' ' furnish like and equal accommodations to all persons, without distinc-

tion of race, color or previous condition ; and any officer, employee, or agent, of any railroad company, steamboat company, or any incorporated company who are common carriers of passengers for hire, or any person or persons who are common carriers, violating the provisions of this section, shall be deemed guilty of a misdemeanor, and subject to indictment by the grand jury, and tried in the county where the offense was committed, and, on conviction, be punished by fine not less than two hundred dollars or exceeding one thousand dollars, or imprisonment not exceeding twelve months, or both, in the discretion of the Court.] (a.) 4586. (a.) Police of railroads. The conductors of every train carrying Acts of 1880 passengers within this State are hereby invested with all the powers, uties and responsibilities of police officers, while on duty on their

ins : Provided, nothing herein contained shall affect the liability of railroad company for the acts of its employees. When a passenger

. / ^3&* is guilty of disorderly conduct, or uses any obscene, profane, or vulgar language, or plays any game of cards, or other game of chance for money, or other thing of value upon any passenger train, the conductor of such train, may stop his train at the place where such offense is com-

1 • } mitted, or at the next stopping place of such train, and eject such pas-

! senger from the train, using only such force as may be necessary to ac- complish such removal, and the conductors may command the assistance of the employees of the company and of the passengers on such

train to assist in such removal ; and said conductor may cause any person, or persons violating the provisions of this section, and which are in violation of the laws of this State, to be detained and delivered to the proper authorities for trial as soon as practicable.

! §4586. (b.) Criminal negligence, defined and punished. If any person

Acts of 1876, employed in any capacity whatever by any railroad company, doing p - 11L business in this State, shall, in the course of such employment, be

! guilty of. negligence, either by omission of duty, or by any act of com-

i mission, in relation to the matters entrusted to him, or about which he

; is employed, from which negligence serious injury, but not death, occurs or happens to any human being, such as breaking or dislocating or straining the bones or joints of the body, wounding the internal parts of the body, fracturing the skull, wounding the organs of sight, hearing or speech, so as to impair their use, such person shall be guilty of the offense of criminal negligence, and, upon the conviction thereof, upon indictment or presentment, shall be punished by imprisonment in the common jail not less than three nor more than twelve months, or by work on the chain-gang not less than two nor more than six months,

1! 1 or by confinement in the penitentiary not less than one nor more than two years, in the discretion of the Court. The examples of serious injury given in this section are not intended to restrain or confine the " i . meaning of the words serious injury," but simply as illustrations of

1 the same.

Jld^~l(m^-*^*'£is- sC> Cirzs&c? $Z*~*^s£J?0 ^^^.^aW^V/^./*/ *A^^ w

PART IV. -TITLE I. -DIVISION' XL 1190

Offenses committed by cheats and swindlers, and offenses against public trade.

ELEVENTH DIVISION. OFFENSES COMMITTED BY CHEATS AND SWINDLERS, AND OFFENSES AGAINST PUBLIC TRADE.

Section. Section. 4587. Credit by fraud. 4598. (b.) Penalty for violating this section. 4588. Cheating at pi ly. 4598. (c.) Emigrant agent defined. 4589. Bakers cheating. 4599. Deceiving as to lien. 4590. False weights. 4600. Wrongful sale of mortgaged property. 4591. Forestalling, etc. 4600. (a. Sale of personal property under lien. 4592. Counterfeiting brands. 460L. Fine for, how appropriated. 4593. Dirt in cotton, etc. 4602 Illegally measuring lumber. 4594. Personating another. 4602. Overcharges by railroad agents. 4595. Similar offenses. 4604. Carrier's receipt. 4596. Personating witness. 4604. (a.) When dividends prohibited. 4597. Lying to obtain security. 4604. (b.) Penalty for violating. 4598 Peddlers without license. 4604. (e.) Additional penalties.

4598. (a. j State license necessary.

§4587. (4499.) (4455.) Persons fraudulently obtaining credit. If any person by false ^presentation of his own respectability, wealth, or mercantile correspondence and connections, shall obtain a credit and thereby defraud any person or persons of any money, goods, chattels, or any other valuable thing, or if any person shall cause or procure others to report falsely of his honesty, respectability, r ealth, or mercantile character, and by thus imposing on the credulity of any person or persons, shall obtain a credit, and thereby fraudulently get into possession of goods, wares, or merchandise, or any other valuable thing or things, such person, so offending, shall be deemed a cheat and swindler, a^^cj/c and, on conviction, shall be punished-by fino , or imprisonmont in the

- jft i l nf thn nrmnty , nr , hnr,h n.t tho. rli^rrrti on of thn. Con vt ^.orfflfpnn- ; and /?^ J~2- r such person shall, moreover, be compelled by the order and sentence oi * the Court to restore to the party injured the property so fraudulently obtained, if it can be done. §4588. (4456.) Persons cheating at play. If any person or per- (4500.) (a) Acts of sons shall b}^ any fraud, or shift, circumvention, deceit, or unlawful L8B5-6 p.

2 ': trick, or device, or ill-practice whatever, in playing at cards, dice, or any game or games, or in or by bearing a share or part in the stakes, wages, or adventures, or in or by betting on the sides or hand of such as do or shall play, obtain, or acquire to him or themselves, or to any other or others, any money, or other valuable thing or things, whatever, such person or persons so offending, shall be indicted, and, on conviction, shall be deemed a cheat, and shall be [punished as prescribed in section 4310 of this Code.] (a.)

§4589. (4501.) (4457.) Bakers and others selling under assize. Any baker

§4590. (4502. ) (4458.) Selling by false weights and measures. If any (a' Acs of sell or 6, p ' person shall knowingly buy or by false weights or measures, he JJJT she shall be deemed a common cheat, and, on conviction, shall be punished [as prescribed in section 4310 of this Code.] (a.) §4591. (4503.) (4459.) Forestalling, etc. [Any person charged with <^ Acts of

" ' the offenses known to the common law as forestalling, regrating, or en- l86i 4, p - 4t grossing, may be indicted in any Superior, Corporation, or other Court having jurisdiction thereof, and, on conviction, shall be punished [as prescribed in section 4310 of this Code.] (b.)

2 Whart. Cr. Law, £2801 ; 2 Bish. Cr. Proa, §348, 396.

§4592. (4504.) (4460.) Counterfeiting brands or marks ,. etc.. If any- per- rai Acts of. " 1 6, p - son shall fraudulently counterfeit, or be concerned in fraudulently VJ} counterfeiting, any brand or mark directed by law, or shall fraudulently 76 1200 PART IV.—TITLE I.—DIVISION XL

Offenses committed by cheats and swindlers, and offenses against public trade.

cause or procure the same to be done, or shall use, export, sell, exchange, barter, or expose to sale, any bale, cask, barrel, hogshead, or vessel of any kind, or any other thing upon which a brand or mark is directed by law to be made, with such counterfeit brand or mark, knowing the same to be false and counterfeit, such person so offending shall, on conviction, be deemed a cheat, and be punished [as prescribed in section 4310 of this Code.] (a.) §4593. (4505.) (4461.) Patting dirt or rubbish into cotton, rice, etc. Any

(a) Acts of person who shall put, or cause to be put, into any bale or bales of cot- 1874, p. 22. ton hogshead or hogsheads, barrel or barrels, or ^ cask casks of sugar, or rice, pork, beef, or other provisions [wool, or other article, or articles prepared for market] any dirt, rubbish, or other thing, for the purpose of adding to and increasing the weight or bulk of said cotton, sugar, rice, beef, pork, or other provisions or things, shall be deemed a common cheat, and, on conviction, shall be punished by a fine equal to the value of the thing thus fraudulently packed or put up, and imprisonment and labor in the penitentiary for any time not less than one year nor more than five years. The bare possession or ownership of such commodities, so

, fraudulently packed or put up, shall not, of itself, authorize a conviction, where sufficient evidence of knowledge of privity on the part of | the owner, or the person in possession, may not be produced before the Court and jury. §4594. (4506.) (4462.) Personating another to obtain goods. If any person shall falsely personate another, and thereby fraudulent^ obtain 1 any money, goods, chattels, or other thing or things of value, or with

[i the intention of thereby fraudulently obtaining any money, goods, chat- i tels, or other valuable thing, such person so offending shall be deemed a cheat and swindler, and, on conviction, shall be punished by imprisonment and labor in the penitentiary for any term not less than one year nor longer than five years; or, in trivial cases, by fine and impris- /n onment in the common jail at the discretion of *the Court.

' £L/~ s&rT^-*- §4595. (4507.) (4463.) Other offenses of like kind. Any person using an deceitful means or artful practice (other than those which are *-e^«-e- (b ^ Acts ol y men- 5 " 6 p - ' tioned and provided against in this Code), by which individuals or 233 an \fo-/i f'^^i^ individual, or the public, are or is defrauded and cheated, such person so offending shall be deemed a common cheat and swindler, and, on conviction, shall be punished [as prescribed in section 4310 of this Code.] (a.)

No cheat and swindler where merely fails to comply with promise to work for money

advanced : 45 Ga., 128. Knowingly misrepresenting a blind horse as sound when ap-

parently so : 58 Ga., 408. Where a new trial should have been granted on a charge of

cheating by putting water in a bale of good cotton to increase its weight : 54 Ga., 311.

§4596. (4508.) (4464.) Personating another; penalty. If any person shall falsely represent or personate another, and in such assumed character answer as a witness to interrogatories, or do any other act in the course of suit, proceeding, or prosecution, or in any other way, i any matter or thing, whereby the person so personated or represented, or any other person, might suffer damage, loss, or injury, such person so offending shall, on conviction, be punished by confinement and labor

! in the penitentiary for any time not less than one year, nor more than five years. §4597. (4509.) (4465.) Lying to obtain security. If any person, b}^ false i

Offenses committed by cheats and swindlers, and offenses against public trade.

such person so offending shall be guilty of a misdemeanor, and, on conviction, shall be punished [as prescribed in section 43f0 of this Code.] (a.)

§4598. (4510.) (4466.) Peddling luithout license. If any peddler, or (a) Acts of " itinerant trader, shall sell or vend an}' goods, wares, or merchandise, 5 6, p " Jjjjjj except such as are excepted by law, within this State, without a license from the proper authority for that purpose, such peddler or itinerant trader shall be guilty of a misdemeanor, and, on indictment and conviction thereof, shall be punished [as prescribed in section 4310 of this Code.] (a.)

Section referred to and construed : 55 Ga., 6S6; 51/331.

§4598. (a.) State license necessary. It shall not be lawful for any emigrant agent or agents to solicit or procure emigrants to leave the State, or to act in the capacity of emigrant agents for said purpose, without first procuring from the tax collector of each county in which he pro- poses to solicit emigrants a license therefor, for which said license he shall pay the sum of five hunched dollars, in each county where he may solicit or procure emigrants; which said sum said tax collector shall pay over to the State as other taxes. §4598. (b.) Penalty for violating this section. Any person who shall solicit or procure emigrants, or shall attempt so to do, without first procuring a license as above required, shall be guilty of a misdemeanor, and, on conviction, shall be punished as prescribed in section 4310 of the Code.

§4598. (c.) Emigrant agent defined. The term "emigrant agent," as Acts of 1876, contemplated in section 4598 (a), shall be construed to mean any person p - 17 - engaged in hiring laborers in this State to be employed beyond the limits of the same.

§4599. (4511.) (4467.) Deceiving as to existence of lien. Any person Act of 1755, who shall, in the sale or disposing of any property, either real or per- ^J^f^ sonal, defraud another by falsely representing that such property is not c. p. 59. subject to the lien of any mortgage or judgment, or other lien against such person or property, knowing the same to be subject thereto, [or w Acts of

' ' P who shall fraudulently make a second deed of conveyance to any land 235? or real estate to another, shall be deemed and held a common cheat and swindler, and, on conviction, shall be punished as prescribed in section 4310 of this Code.] (a.) Section referred to: 52 Ga., 199.

§4600. Wrongful sale of mortgaged property, penalty. [No person, after (a» Acts of " 1871 2 p- 7L having executed a mortgage deed to personal property, shall be per- > mitted to sell or otherwise dispose of the same with intent to defraud the mortgagee, unless the consent of the mortgagee be first obtained, before payment of the indebtedness for which the mortgage deed was executed; and if any person shall violate the provisions of this section, and loss thereby is sustained by the holder of the mortgage, the offender shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine in double the sum, or debt,

which said mortgage was given to secure ; and upon failure to pay said fine immediately, the person so convicted shall be 4mprisone4-4n—trhe .common jail fog- a period of not4ess—tlran—six months, nor more than twelve.] (a.) Where parol evidence was not admissible to show a mistake in the description of the property mortgaged: 55 Ga., 179.

§4600. (a.) Sale of personal property under lien. The provisions of section 4600 of the Code, rendering penal the wrongful sale of mortgaged property, shall be extended to and include liens for rent and advances made upon crops, by landlords, employers, or others, as authorized by '

1202 PART IV.—TITLE I.—DIVISION XI.

Offenses committed by cheats and swindlers, and offenses against public trade.

law. And offenses against this section shall be held misdemeanors, and any 'person guilty thereof, shall, on conviction therefor, be punished according to section 4310 of the Code. §4601. Fine, how appropriated. [When the fine has been imposed and (W Acts of collected, one-half shall be paid to the holder of the mortgage, and the 1871-2, p. 7i. payment shall extinguish the debt to secure which the mortgage was executed, and the remaining half shall be paid over to the county treasury of the county in which said conv i c l^) tiAw^hai^]j1 /fj. J 7t §460i. (a.) Jurisdiction of the offense. [The^S^SS&^mmrield for the Acts of county in which the party violating section 4o00 resides, shall r / '(c) have 1871-2, p. 7 1. i scii offender.] j ur ction to try the (c.) §4602. (4512.) (4468.) Illegally measuring lumber. If any measurer and ctsof i nR ec^or of timber, appointed under the laws of this State, or any per- is6^ P P _233. ' * son not being an official measurer and inspector, shall measure any timber otherwise than as required by the laws of this State, he shall be guilty of a misdemeanor, and, upon conviction thereof, shall be pun-

ished for each offense [as prescribed in -section 4310 of this Code :] (b.) Provided, that this provision shall not apply to any case when the

. measurement is not for the purpose of being used in the sale of the timber, or to any case where the parties buying and selling contract to have the timber measured other than according to the laws of this State. §4603. (4513.) Railroad officials overcharging. [Any officer, agent, or

'(c) Acts of other employee of any railroad company in this State, who shall charge P -237?"°' * f°r transporting freight or passengers over said railroad above the rates allowed by their several charters, or established by the superintendent, or other officer or officers of said railroad, shall be guilty of a misdemeanor, and, on indictment and conviction before the Superior Court in any county having jurisdiction thereof, shall be punished as prescribed in section 4310 of this Code.] (c.) §4604. (4514.) Receipts of carriers. [Whenever any person shall de-

(a) A'Ctsof iliver any article, thing, commodity, or property of any description, to i 1870, p. 400. any rail road, steamboat, or express company, in this State, for transportation, it shall be the duty of said company, upon demand, to furnish the party so delivering a good and valid receipt for the same, with

proper revenue stamps attached thereto ; and said receipt shall specify [the shipping mark or marks, and number or numbers thereon, and] (a.) the weight of said article, thing, commodity, or property, thus

delivered, whenever the value can be estimated by weight ; and in all cases where the value cannot be thus estimated, the receipt shall give a general description of said article, thing, commodity, or property, and shall also specify as near as practicable the quantity or value thereof,

and also the place of destination ; and any agent or officer of any railroad, (aii Acts of steamboat, or express company, violating the provisions of this section, i8<5-6, p. ^aii b e deemed and considered guilty of a high misdemeanor, and, upon conviction thereof, shall be punished by fine or imprisonment, or both, in the discretion of the Court, the fine not to be less than one hundred dollars nor more than two thousand dollars, and the imprisonment not to exceed sixty days.] (a.) §4604. (a.) When dividends prohibited. No joint stock company, cor- Acts of 1877, poration, body corporate, or other association, shall declare any divi- p ' 86- dend, or dividends, or distribute any mone}^ among its members as profits, when such dividend or dividends, or money, are not the legitimate proceeds of its investments. §4604. (b.) Penalty for violating. Any president, director or directors, Actsofi877, or other officer or agent of any joint stock company, corporation, body p * corporate, or other association, violating the provisions of the preceding '

PART IV.—TITLE L—DIVISION XII. 1203

Fraudulent or malicious mischief.

section, shall be guilty of a misdemeanor, and, on conviction, shall be punished as provided in section 4310 of the Code. §4604. (c.) Additional penalties. Should the president, directors, or Aetsofi877, p " other agent of any corporation, declare a dividend or dividends, in violation of the section aforesaid, they shall, in addition to the punishment prescribed in the section preceding, be liable to be sued for double the amount of damages that any person, or persons, may sustain in consequence of the declaring of such dividend or dividends.

General Note on Cheating, False Pretences, etc. —2 Whart. Cr. Law, #2056 ; 2

Bish. lb.. #142, 392; 2 Bish. Cr. Proa, #157 ; 3 Gr. Ev., ?84 ; 2 Arch. Cr. Pr. and PL, 1376; 1 Hawley's Cr. Rep., 209, 211, 218, 225; 2/85-105, 228; Dudley, 155; 33 Am. R., 89, 589. Not criminal, unless calculated to deceive persons of ordinary prudence and discretion : 26 Am. R., 192.

TWELFTH DIVISION. FRAUDULENT OR MALICIOUS MISCHIEF.

Section. Section. 4605. Destroying books or papers. 4613. Turnpikes, fixtures, etc. 4606. Altering landmarks. 4614. Firing, or sinking vessels. 4607. Buoys, beacons, etc. 4615. Cutting down trees. 4608. Setting fire to stacks. 4616. Mile or guide-post 4609. Setting fire to woods. 4617. Obstructing highways. 4610. Setting fire to fences, or burning. 4618. Destroying growing crop. 4611. Breaking bridges, dams, etc. 4619. Fixtures of coast survey. 4611. (a.) Building fire about. 4620. Public burying-grounds 4611. (b.) Punishment. 4621. Private burying-grounds. 4611. (c) No relief against damages. 4622. Injuring fish-ponds. 4612. Killing or maiming cattle, 4623. Injury ing mining works. 4612. (a.) Cruelty to animals, 4624. Poisoning fish. 4612. ib.) Abandoned animals. 4625. Illegal fishing, 4612. (c) Arrest of violators, 4625. (a.) Killing fish. 4612. (d.) Fines, how disposed o'. 4625. (b.) Unlawful trapping, etc.

4612. (e.) Cruelty denned. 4625. (c. ) Passage to be free.

4612. (f.) Putting children to dangerous voca- 4625. (d. ) Removal of disseased cattle. tions. 4626. Digging ginseng. 4612. (g.) Protection of children. 4627. Other similar acts. 4612. (h.) Cruelty to children.

§4605. (4515.) (4469. Destroying boohs or papers of value. If any person shall fraudulently or maliciously tear, burn, or in any other way destroy any deed, lease, will, bond, or other writing sealed, or any bank bill or note, check, draft, or other securit}^ for the payment of money or the delivery of goods, or any certificate or other public security of this State, or of the United States, or any of them, for the payment of money, or any receipt, acquittance, release, discharge of any debt, suit, or other demand, or any transfer or assurance of money, stock, goods, chattels, or other property, or any letter of attorney, or other power, or any day-book, or other book of accounts, or any agreement or contract whatever, with intent to defraud, prejudice, or injure any person, or body politic or corporate, such person so offending shall, on conviction, be punished by imprisonment and labor in the penitentiary for any time not less than one year nor longer than four years ; or, in trivial cases, by imprisonment in the common jail, or by fine, or both, at the discretion of the Court. §4606. (4516.) (4470.) Altering or removing landmarks. If any person (ai Acts of 6 p ' shall, knowingly, maliciously, or fraudulently, cut, fell, alter, or remove %$!~ ' any certain boundary tree, or other allowed landmark, to the wrong or injury. of his neighbor, or any other person, such person so offending shall, on conviction, be punished [as prescribed in section 4310 of this Code.] (a.)

§4607. (4517.) (4471. ) Buoys, beacons, etc. If any person or persons shall, maliciously, or without authority, cut down, remove, or destroy any beacon or beacons, buoy or buoys, erected by any commissioners of pilotage, or other person or persons duly authorized for that purpose, 1204 PART IV.—TITLE I.—DIVISION XII.

Fraudulent or malicious mischief.

such person or persons so offending shall, on conviction, be punished by confinement and labor in the penitentiary for any time not less than two years nor longer than five years. §4608. (4518.) (4472.) Firing fences or grain is felony. [Any persons

Acts of 1871, guilty of the willful and malicious setting fire to or burning the fences pp. 72, 73. f another, or his stacks of corn, fodder grain, straw, or hay, or his shocks, or piles of the same, or his crops not gathered in his fields, not in a town, city or village, shall be guilty of a felony, and shall be punished by imprisonment and labor in the penitentiary for a time not less than

one nor longer than three years ; and if such fence, stack, shock, or pile -* /-z

A conviction for burning fodder, on circumstantial evidence, reversed : 53 Ga., 253.

$4609. (4519.) (4473.) Setting fire to woods. If any person shall will-

fa) Acts of fully and maliciously set on fire, or cause to be set on fire, any woods, 5 6 P ' ' l an^s or marshes, within this State, so as thereby to occasion loss, dam- 233 5 age, or injury to any other person, such person, so offending, shall, on conviction, be punished [as prescribed in section 4310 of this Code.] (a.) §4610. (4520.) (4474.) Fences. If any person shall willfully and ma-

te) Acts of liciously set fire to any fence or fences, or other inclosure, or cause or 1865-6, p. procure the same to be done, or shall take from such fence or inclosure any rail or rails, or other material of which the same is made or com- posed, for the purpose of using the same as fuel, such person, so offending, shall, on conviction, be punished [as prescribed in section 4310 of this Code.] (a.) §4611. (4521.) (4475.) Breaking bridges, dams, banks, etc. If any person shall unlawfully, willfully, and maliciously break down, cut open, through, injure, or destroy any bridge, river, or meadow bank, rice-dam, mill-dam, or any other dam or bank, such person, so offending, shall, on conviction, be punished by confinement and labor in the penitentiary not less than one year nor longer than three years, or by fine and imprisonment in the common jail, at the discretion of the Court. §4611. (a.) Encampment or building fires about, prohibited. It shall not Actsofi875, be lawful for any person or persons whatever, to encamp upon, within, p. loi. or unc[ er any public bridge or private bridge in this State, without the consent of the owner, or to build a fire upon, within, or under such bridge.

. §4611. (b.) Penalty for violation. Any person or persons violating the

Acts of 1875, provisions of the foregoing section, shall be guilty of a misdemeanor, p - 10L and, on conviction, shall be punished as prescribed in section 4310 of the Code. §4611. (c.) Does not relieve from civil damages. None of the provisions Actsofi87&, of the two foregoing sections shall be so construed as to relieve any of- p. 102. fender from liability for damages on the civil side of the Courts for the injury or destruction of any bridge. §4612. (4522.) (4476.) Killing or maiming cattle or hogs. If any person Acts of 1880 shall maliciously maim or kill any horse, mule, bull, steer, ox, cow, -l, p. 73. cajf ne jfer) or other animal falling under the description hereinbefore ? given of horses or cattle, or shall maliciously maim or kill a hog or

Acts of 1855 hogs, such person, so offending, shall, on conviction, be punished as pre- -6, 233. p. scribed in section 4310 of this Code : Provided, that when the person killing or maiming such animal or animals shall, upon trial thereof, set up a defense that such killing or maiming had been done, not from PART IV.—TITLE I.—DIVISION XII. 1205

Fraudulent or malicious mischief.

malice toward the owner of said animal or animals, but to prevent injury to the defendant's growing or matured crops or other property, such defense shall not avail to acquit the defendant unless it be made clearly to appear before the Court trying the same, that such growing or matured crops or other property was protected by a substantial fence, not less than four and a half feet high.

Need not prove actual ill will against the owner to make out the offense : 28 6a., 190. Defense for shooting a mule, that it was clone to protect the crop, and not from ill will

to the owner or cruelty to the animal : 30 Ga., 325. Conviction of shooting a mule on sufficient evidence: 60 Ga.. 142. Indictment should state the dayamd month when the offense was committed, and it is the maiming or killing, and not the shoot-

ing of a cow, that makes the offense : 65 Ga., 410.

Thomp. Law of Farm, §§193-207; 2 Arch. Cr. Pr. and PL, 1545; 1 Bish. Cr. L., §1026.

§4612. (a.) Cruelty to animals. Every person who shall set on foot or Actsofis7s p 1S instigate, or promote, or engage in, or do anything in furtherance of "^i " V^ y jfc any act of cruelty to any domestic animal, shall be guilty of a misde-^^^^/T^^S/ and, j^~& meanor, on conviction, shall be punished under section 4310 ofj£, if^^)/t this Code. /5^. /^# ' §4612. (b.) Abandoned animals, how dealt with. Any person finding/lets

9 ' 183 p ' any domestic animal abandoned and not properly cared for, may apply" ' x c/ ' to any Justice of the Peace of the county, who may summarily decide £^-*^*-<*^~-~ ~' 2~*~ whether such is abandoned and also glandered, or otherwise diseased, /y^ -/• /- • or injured past recovery, hearing evidence and giving notice to the owner, if known, whenever such notice can be given without defeating the objects of this section, which objects are declared to be primarily the putting an end speedily to the suffering of hopelessly diseased and disabled animals, and such Justice of the Peace may, on such hearing, authorize the destruction of such animals : Provided, that such authori- zation shall not defeat the owner's claim against the person destroying or procuring the destruction of such animal for any pecuniary damage that such owner may have sustained by such destruction. Arrests cruelty to animals. or §4612. (c.) for Upon complaint on oath Acts Q f is78 [

9 183 - affirmation to any magistrate authorized by law to issue warrants in- > p- criminal cases, that the affiant has just and reasonable cause to suspect that any of the provisions of law for the prevention of cruelty to animals are being violated, or are about to be violated, in any particular building or place, such magistrate shall immediately issue and deliver a warrant to any one authorized by law to make arrests in criminal cases, authorizing and requiring him to enter and search such building or place and to arrest any person there present, found violating any of said laws, and to bring such person before the nearest or most accessi- ble magistrate of competent jurisdiction, to be dealt with according to law.

§4612. (d.) Fines, how appropriated. All fines collected in any county Acts of ists ~ 9 183 - of this State, under the provisions of the three preceding sections, shall - p- inure one-half to the public school fund of the county, and the other half to any society whose object is, or shall be, the prevention of cruelty to animals, which is now, or hereafter may be, incorporated by proper authority in this State, and whose officer or agent has prosecuted the case in which the fine is imposed; and where the prosecutor is some person other than such agent or officer, then half of the fine shall be paid into the county treasury. §4612. (e.) Cruelty defined. The word "cruelty" shall be held to in-Acteofi878

9 p - 183 - elude every willful act, omission or neglect, whereby unjustifiable phys-~ « ical pain, suffering or death, is caused or permitted.

§4612. (f.) Patting children to dangerous or improper vocations. Any Actsof ]878 -9 162. person whatever, who shall sell, apprentice, give away, or let out, or - p- otherwise dispose of, any child under twelve years old, to any person, 1206 PART IV.—TITLE I.—DIVISION XII.

Fraudulent or muliri'ms mischief.

for the vocation, occupation, or service of rope or wire walking, begging, or as a g}^mnast, contortionist, circus rider, acrobat or clown, or for any indecent, obscene or immoral exhibition, practice or purpose whatever, shall be gu'lty of a misdemeanor, and punishable under section 4310 of this Code; and whoever, under such selling, apprenticing, or letting out, shall receive and use such child, for any of the purposes herein condemned, shall be guilty and punishable in like manner. §4612. (g.) Children, how protected. Whenever any child under the Acts of ls&o age aforesaid, shall be brought before the Ordinary of the county of such -l, p. 162. child's residence, upon the sworn allegation of any citizen, that such child was found under circumstances of destitution and suffering, or f

: abandonment, exposure, or of begging, or that such child is being reared up under immoral, obfcene, or indecent influences likely to degrade its moral character and devote it to a vicious life, and it shall appear to such Ordinary by competent evidence, including such examination of the child as may be practicable, that by reason of the neglect, habitual drunkenness, lewd, or other vicious habits of the parents or guardians of such child, it is necessary to the protection of such child from suffering or from degradation, that such parents or guardians shall be deprived of the custody of such child, such Ordinary may commit such child to any orphan asylum or other charitable institution established according to law in this State which is willing to receive such child, or to appoint a proper guardian therefor, or make such other disposition of them as now is, or may hereafter be, provided b}^ law in cases of disorderly, pauper, or destitute children. §4612. (h.) Cruelty to children, how punished. Whoever shall torture,

Acts oi isso torment, deprive of necessary sustenance, mutilate, cruelly, unreason- -l, p. 162. ably and maliciously beat or ill treat, or cause to be tortured, tormented, deprived of necessary sustenance, mutilated, cruelly, unreasonably and maliciously beaten, or ill treated, any child, shall be guilty of a misdemeanor, and, on conviction, shall be punished as prescribed in section 4310 of this Code.

! §4613. (4523.) (4477.) Turnpike and navigation fixtures. If any per-

(a^i Acts of son shall maliciously injure or destroy any turnpike gate or gates, or I 6 ' P m ' any Pos ^ or Pos ts, rai l or rails, wall or walls, or any chain, bar or other i fence belonging to any turnpike gate, or any house or houses, erected or to be erected, for the use of any such turnpike gate or gates, or shall willfully and maliciously injure or destroy any lock or locks, or other works erected to protect and secure the navigation of any river or canal in this State, every such person so offending shall, on conviction, be punished by imprisonment and labor in the penitentiary for any time not less than one year nor longer than four years. §4614. (4524.) (4478.) Firing or sinking vessels. If any person shall <& Acts of willfully and maliciously burn, or set fire to an}^ ship, boat or other 186^-6, p. ve sSe i above the value of two hundred dollars, alongside of any wharf, or at anchor in any river, or in any waters in this State, or if any person shall willfully and maliciously make, or assist in making, any hole in the bottom, side, or any part of any ship, boat or other vessel, above the value aforesaid, or do any other act tending to the loss or destruction of such ship, boat or other vessel, within the waters of this State as aforesaid, such person so offending shall, on conviction, be punished by imprisonment and labor in the penitentiary for any time not less

than three years nor longer than seven years ; and if the ship, boat, or other vessel thus injured or destroyed, as aforesaid, be of the value of two hundred dollars, or under that value, then the person convicted

i of injuring or destroying such ship, boat, or other vessel, as aforesaid, [shall be punished as prescribed in section 4310 of this Code.] (a.) §4615. (4525.) (4479.) Cutting down trees. If any person shall will- ""

PART IV.—TITLE L—DIVISION XII. 1207

Fraudulent or malicious mischief. fully and maliciously cut down, injure or destroy any tree or trees, (a) Acts of 8, p> planted or growing in any town, village or city, or in any avenue, yard, ^f" garden, orchard, or plantation, for ornament, shelter, shade, or profit, such person so offending, on conviction, [shall be punished as prescribed in section 4310 of this Code.] (a.)

§4616. (4526.) (4480.) Mile or guide posts. If any person shall will- (a) Acts of " fully or maliciously break, deface, destroy or remove any mile-stone or^5 0, p ' post, or any guide-board, erected upon any public road or highway, or alter any mark or inscription upon any such mile-stone or post, or guide-board, such person so offending shall be indicted for a misdemeanor, and, on conviction, [shall be punished as prescribed in section 4310 of this Code.] (a.)

§4617. (4527.) (4481.) Obstructing hightcays. Any person who shall Acts of 1S59 stop up or obstruct a public highway, with a malicious intent, or shall p - 6-- do the same acts without such intent, and fail to remove the same on §65i. notice from the overseer or commissioner of the road, shall be guilty (a) Acts f " of malicious mischief, and, on conviction, [shall be punished as pre- j^5 56, p - scribed in section 4310 of this Code.] (a.) §4618. (4528.) (4482.) Severing produce from the realty. If any person (a\Acts of 6 p ' ' shall commit any trespass by willfully and maliciously severing from gijff the land of another any produce thereof, such person, so offending, shall be indicted for a misdemeanor, and, on conviction, [shall be punished as prescribed in section 4310 of this Code.] (a.) §4619. (4529.) (4483.) Injuries to coast survey fixtures. Any person (a) Acts of 6, p ' who shall willfully or wantonly injure, deface or remove any signal, Jl^" monument, building, or any other appendage thereto, erected within this State by virtue of any Act of Congress authorizing a coast survey, shall be guilty of a misdemeanor, and, on conviction, [shall be punished as prescribed in section 4310 of this Code.] (a.) ~ / ~f §4620. (4530.) (4484.) Injuries to public burying grounds. Any person (b) Actsof/w-t^j^ shall willfully or wantonly injure or destroy any enclosure around 18^> v '*7 £2*~/^j who '*^f' or within any public or private grave-yard or burying ground, or any /^^^^^^v^° monument or tombstone, or other fixtures therein, shall be guilty of a i?65-6?p. misdemeanor, and, on conviction, [shall be punished as prescribed in 233 - section 4310 of this Code.] (a.) S/f-rff7, §4621. (4531.) (4332) Disturbing private burying grounds. Any person Act otw&f

c - 846 - who, by himself, his agent or servants, shall mutilate, or in any wise - p injure or destroy, any private burying ground which has been reserved (a) Acts of ,p' in any private or public sale of the surrounding land, shall be guilty 233? of a misdemeanor, and, on conviction, [shall be punished as prescribed in section 4310 of this Code.] (a.) §4622. (4532.) (4485.) Injuring fish-pond. Any person willfully or (a) Acts of 6 p " maliciously breaking the dam or destroying the fish, or fishing therein, Hjf ' or otherwise injuring any artificial fish-pond, shall be guilty of a misdemeanor, and, on conviction, shall be punished [as prescribed in section 4310 of this Code.] (a.) §4623. Punishment for injuring mining works. [If any person or persons (a) Acts of

1S68, - 1S - shall unlawfully, willfully and maliciously cut, break down, destroy or p in any manner hurt, damage, injure or obstruct, or shall counsel and assist, or advise any person or persons in any manner to hurt, damage, injure, obstruct, break down, or destroy any ditch or ditches, canal or canals, flume or flumes, dome or domes, tunnel or tunnels, made, constructed, erected or used to control and convey water to any mine or mines for mining purposes, or any of the appurtenances to such ditch or ditches, canal or canals, flume or flumes, dome or domes, tunnel or tunnels, belonging or appertaining, such person or persons so offending shall be liable to be indicted for a misdemeanor, and on conviction, 1208 PART IV.—TITLE I.—DIVISION XII.

Fraudulent or malicious mischief.

shall be fined or imprisoned, or both, at the discretion of the Court.] (a.)

Indictment under this section : 62 Ga.. 443.

§4624. (4533. ) Poisoning fish. [Any person who shall poison any lake,

(b) Acts of river, stream, or pond, in any of the counties of this State, or either of 1863-3, p. 46. fchem, with a view of poisoning fish therein, shall be guilty of a misdemeanor, and, on conviction thereof, shall be punished as prescribed in seetion 4310 of this Code.] (b.) §4625. Penalty for illegal fishing. [It shall not be lawful for any person, (ay Acts of other than the proprietors of the shores and banks of such creeks, estu- f 1872, p. 53. ar j eg an(j r i verS5 ^r such person as shall be by any such proprietor authorized), to take fish, or attempt to do so, with any line, net or contrivance whatever, on any creek, estuary or river, where any artificial shell reefs, beds, or fishing grounds have been constructed, or may hereafter be constructed, within one hundred yards thereof: Provided, nothing herein shall authorize one proprietor to construct or use such places opposite the shore or bank of another proprietor, beyond the centre of the creek, estuary or river, opposite his own shore or bank. And any person violating the provisions of this section shall be subject to indict- i ment for a misdemeanor in the Superior Court of the county wherein such violation shall occur, and shall, on conviction, be subject, for every such offense, to a fine not exceeding one hundred dollars, nor less than twenty dollars, at the discretion of the Judge, or imprisonment in

the county jail for not more than ninety days nor less than thirty days > at the discretion of the Judge.] (a.) §4625. (a.) Unlawful killing offish. It shall be unlawful for any person Acts of L8soto use any dynamite, or other explosive or destructive substance for the -l, i3o. p. pUr p0Se of killing fish, and any person violating the provisions of this section shall be guilty of a misdemeanor, and shall be punished as prescribed in section 4310 of this Code. §4625. (b.) Traps, etc., unlawful, except by written consent. It shall not Acts of 1875, be lawful for any person, or persons, to put any trap, wire, trot-line, set- , ii3. p. line, or other like contrivance, for catching fish for sale, in any of the lakes, or other waters, of this State, upon, or within the lands of another, without the written consent of the owner thereof. And any person, or persons, who shall violate the provisions of this section, shall be guilty of a misdemeanor, and subject, upon conviction, to the penalty prescribed in section 4310 of this Cod\ §4625. (c.) Passage offish not to be obstructed. It shall not be lawful for Acts of 1878 any person, or P 3rsonsJ°4CO]^^^v.e^c^2r P^ ace i*1 ^ ne waters of any r ^ ver or "iDuth of on c/eef^intnis State7any dam, trap, net, seine, or /* 'j'J^Jls ' y /£~T A r^'epther device for catching fish^le^th^ |WJ&Bffl8* k su^tream '7 is left open lor a space or tenuaeet at low wafer-mark, unoostructed lor /^/,"Vv- the free passage of fish up or down such stream. And any person, or / persons, violating the provisions of this section, shall ba guilty of a misdemeanor, and, on conviction, in any Court having jurisdiction of like offenses in any of the counties through which such s£j^ft$3^ ses J3h^ be punished as prescribed in section 4310 of this Code; ana^rpers^ris in the territory of such obstructions shall have full authority to break and open any dam, net, or other obstruction now in suclx^aters^rUiaJ; may hereafter be placed in them, for the space of ten f^T^tlow^^tef-

mark, so as to fully carry out this section : Provided, that nothing herein contained shall be so construed as to interrupt dams that are now or that may hereafter be made, for milling or manufacturing purposes. §4625. (d.) Diseased cattle not to be removed. Any person, or persons, Acts of 1878 who shall knowingly drive or move for the purpose of grazing any cat- -9, p. 173. ^e jiav j ng flfcQ disease known as "murrain," or having any other dis- :

PART IV.—TITLE I.—DIVISION XII. 1209

Fraudulent or malicious mischief.

temper or infectious disease, to any place or places, in this State, other than those places or localities where the cattle at the time are so diseased, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished as prescribed in section 4310 of this Code. (a Acts of §4626. Penalty for digging ginseng untimely. [It shall not be lawful ) ^ 1868, p " 194 ' for any person to dig ginseng in this State before the first day of Sep- tember, in each and every year, unless the same be cultivated ginseng. Any person who shall be guilty of a violation of this section shall be deemed and held to be guilty of a misdemeanor, and, upon conviction thereof, shall be fined, for every such offense, not less than ten dollars, ^nor more than fifty, in the discretion of the Court.] (a.) §4627. (4534.) (4486.) All other acts of malicious mischief, All other g) Acts of "' p ' acts of willful and malicious mischief, in the injuring or destroying 233. any other public or private property, not herein enumerated, shall be punished [as prescribed in section 4310 of this Code.] (a.) Accusation under this section full and minute as to acts of the prisoner, unnecessary

to read to the jury any of the Code : 63 Ga., 189. Malicious Mischief (General Note.)— Whart. 2 Cr, Law, $2001 ; 2 Bish, lb.. §955

2 Bish. Cr. Proc, £837 ; 2 Arob. Cr. Pr. and PL, 1468.

^l£*<-ejcx^£~*^Z'-^G *£* -tPxu^t^m<^ 0*-~

Of indictments, arraignments, trial, verdict, judgment and execution.

THIRTEENTH DIVISION.

OF INDICTMENTS, ARRAIGNMENTS, TRIAL, VERDICT, JUDGMENT, AND EX- \ ECUTION. Section. Section. 46 8. Form of indictment. 4667. Pregnant convicts 4629. Exceptions. 4668. Subsequent execution. 4680. Malicious prosecution. 4669. Date from sentence. 4631. Costs paid by county. 4670 Offenses on county lines. 4632. Prosecution on presentments, 4671. Death in another county. 4633. Arraignments in small offenses. 4672. Or on soil of United States. 4634. Copy, indictment, and witnesses. 4673. Insane offender. 4635. In minor offenses. 4674. Act. not attempt. 4636. Arraignments. 4675. Jury may find attempt. 46 M. Statement of deceased. 4676. Two convictions, lougest time. 4638. Standing mute. 4677. Convicts witnesses. 4639. Demurrers and special pleas. 4678. Impaneling jury. 4640. Record of issue. 4679. Putting panel on prisoners. 4641. Entry on indictment. 4680. Challenge to the array. 4642. Arraignment in fetters. 4681. Challenge lor cause. 4643 Challenges. 4682. Questions on voir dire. 4644. In minor offenses 4683. Setting aside for cause. 4645. Order of argument. 4684. Swearing in chief. 4646. Jury judges of law. 4685. No investigation against triers,

4646. (a. ) Effect of recommendation to mercy. 4686. Criminal cases, when tried. 4647. Time of trial, continuance. 4687. Change of venue. 4648. Demand for trial. 4688. Duty o officers. 4649. Nolle prosequi. 4689. Costs, by whom paid. 4650. Juror's oath. 4690 Fees of witnesses. •

4651. Witness' oath. • 4691. Penit'nt'ry connnement,disqualification. 4652. Before grand jury. 4691 Joint defendants. 4653. Several imprisonments. 4693. Continuance by one. 4654. Fine money. 4694 Opprobious words. 4655. Paid immediately. 4695. Oath on inquests of insanity. 4655. (a.) Fines, etc., how paid. 4696. Abstract of evidence. 4655. (b.) Distribution of fines, etc. 4696. (a.) Appointment of reporters. 4655. (c.) Fines, how kept. 4696. ib.) Pay of in criminal cases.

4655. (d.) Claims on, how paid. 4696. (c. ) Pay of in civil cases. 4655. (e.) Justice, etc., how paid. 4696. (d.) Furnishing reporters, fees. 4655. (f.) Report of fines to grand jury. 4697. Form of sentence, 4655. (g.) Local laws not affected. 4698. Commutation for good behavior. 4655. (h.) City Courts excepted. 4699. Collection of costs. 4656. Discretionary imprisonment in pen. 4700. Discharge of insolvents. 4657. Convicts sent to penitentiary. 4701. Bail taken twice. 4658. Notice to keeper. 4702. Forfeiting recognizance. 4659. Escanes therefrom. 4703. Proceedings against bail. 4660. Confinement in jail 4704. Surrender by bail 4661. No benefit of clergy. 4705. Punishment in minor offenses. 4662. Death by hanging, mode of execution. 4606. Settlement of offenses. 4663. Judge's report. 4707. Excessive costs. 4664. Punished under existing laws. 4708. Two returns of "no bill." 4665. Limitation on indictments. 4709. Insolvent costs. 4666. Insane convicts. 4709. (a.) Justice's rights, etc. 4666. (a.) Disposition of insane convicts. 4709. (b.) Duty of committing officer. 4606. (b.) Laws made applicable. 4709. (c.) Insolvent costs, how paid. 4666. (c.) Executed on recovery. 4710. Docket, how called. 4666. (,d.) Law as 10 insane convicts 4710. (a.) Certain cases may be stricken.

§4628. (4535.) (4516.) Form of indictment. Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may be easily understood by the jury. The form of every indictment or accusation

shall be as follows : . Georgia, County. " The grand jurors selected, chosen and sworn, for the county of

to-wit : , in the name and behalf of the citizens of Georgia, charge and accuse A B, of the county and State aforesaid, with the offense of

, for that the said A B (here state the offense, and the time and place of committing the same, with sufficient certainty), contrary to the laws of said State, the good order, peace, and dignity thereof." If there should be more than one count, each additional count shall

commence with the following form : " And the jurors aforesaid, in the name and behalf of the citizens of Georgia, further charge and accuse the said A B with having committed the offense of (here state the offense as before directed), for that," etc. PART IV.—TITLE I.—DIVISION XIII. 1211

Of indictments, arraignments, trial, verdict, judgment and execution.

§4629. (4536.) (4517.) Exceptions. All exceptions which go merely §3588. to the form of an indictment shall be made before trial ; and no motion in arrest of judgment shall be sustained for any matter not affecting the real merits of the offense charged in such indictment.

General Note on Sections 4628 and 4629. —Accessory after the fact, in receiving stolen goods, as to indictment against: 56 Ga., 92. Arrest of judgment, on motion for, not competent to prove aliunde that grand jurv was not sworn : 9 Ga., 58. That jurors were summoned without writ of scire facias, no ground for: 14 Ga., 43. That indictment was not formally read to jury, no ground for: 18 Ga., 384. Christian names of grand jury being set out in initials, no ground for : 18 Ga., 460. Matters not affecting real merits of indictment not sufficient for; 19 Ga., 1; 22/75; 37/51. Nothing

for, unless it appears : ; ground on the face of the record 21 Ga., 159, 271 ; 22/281 29/522.

That some of jury trying were on jury of previous week, no ground for : 31 Ga., 411. Will not be granted where allegations of indictment are sufficient in law to authorize continuance : 33 Ga., 98. Blank in indictment, no ground for, after plea of guilty : 34 Ga., 107. Assault with intent to murder, indictment against defendant as principal in second degree: 50 Ga., 591. Indictment for, and verdict of guilty of whipping wife, judgment arrested : 53 Ga., 113. Indictment for, with a pocket knife without alleging use made of the weapon, not good in arrest of judgment: 56 Ga., 583. Two indicted for, indorsement of "true bill'' applies to both defendants : 55 Ga., 598. Blank left in indictment, held immaterial: 34 Ga., 107. Burglary, indictment for, must allege the intent of the breaking : 46 Ga.. 324. Citizen, not necessary for indictment to charge defendant to be, of the county : 7 Ga., Color necessary as description 3 ; 38/491. not of deceased in murder case : 48Ga.,36. Not necessary, of defendant : 44 Ga., 263. Con- clusion of indictment proper if it followsform provided by statute : 25 Ga., 689. Copy of indictment and list of witnesses sworn before grand jury, defen lant entitled to only on demand : 50 Ga., 585. Counts, if some are good and other? defective and general verdict ot" guilty, intendment of the law is, the jury found on the good counts : 10 Ga., 48. Where there are counts charging several grades of the same offense and a general verdict of guilty, Court will award judgment on highest grade : 10 Ga., 48 ; 55/131. When defendant may compel election as to which count State will proceed under : 11 Ga.,

226. When defendant cannot compel such election : 26 Ga., 611 ; 58/577. Day ; charge " of offense on a day certain, and divers other days," last surplusage : 11 Ga., 53. Of- fense may be charged on any, previous to finding bill : 11 Ga., 53 ; 25/515 ; 34/117. No particular day proved, sufficient if within statute of limitations: 13 Ga., 396; 18/736;

34/202. Exceptions to foregoing : 17 Ga., 439. Indictment good, although offense al-

leged to have been committed on an impossible day : 55 Ga., 304. 625. Day not named in indictment (only the year named) indictment defective: 65 Ga., 410. Indictment for keeping open tippling house on the Sabbath and the day named was Friday, judg- T ment arrested : 51 Ga., 426. Description of stolen property, what w as held sufficient

of a horse : 44 Ga., 263. Of hogs sufficient, if so described the owner can identify them : 57 Ga., 28. Disturbing- religious congregation, where charge was sufficiently set out

to support verdict : 60 Ga., 464. Duel, indictment alleging consent in this State to act as second in, immaterial where duel was fought: 58 Ga., 332. Exceptions to indictment because defective, must be made before trial: 24 Ga., 31. Fornication, verdict of, on indictment for rape, judgment arrested: 60 Ga., 381. Grand juror excused, and on same day bill returned with his name to it: 9Ga., 210. Where names of grand jurors

are not on the jury list, when not regularly surnamed, matter for plea : 60 Ga., 88, 126.

Idem sonans, no longer an infallible test, identity of the person the true issue : 18

Ga., 738 ; 38/184. Joinder of offenses ; two distinct offenses cannot be charged in the

same indictment : 12 Ga., 293. Counts for assault with intent to mnrder by shooting

with a pistol and for shooting at another with a pistol may be joined : 52 Ga., 565.

Counts for assault with intent to murder with a knife and for stabbing maybe joined : 43 Ga., 218. Indictment containing counts for robbing and assault and battery, demurr-

able : 57 Ga., 66. Defendant may be charged with stealing hogs of two persons at same

timeand place: 57Ga.,171. Forgery and uttering forged paper may b 2 joined : 59Ga.,784;

11/92. Count for receiving stolen goods maybe joined with count for simple larceny : 61 Ga.^213. Offenses of same nature maybe joined in one indictment, and sometimes when

not of same nature : 65 Ga. , 449. Jury list, names of grand j urors dropped on revision of,

qualified to serve if already drawn : 55 Ga., 391. Larceny from the house, not necessary to allege that accused entered with intent to steal: 10 Ga., 511. indictment omitting word "privately" in alleging act of stealing, objection too late after verdict: 60 Ga., 431. Malpractice in office, indictment proper mode of charging Justice of the Peace with, and not presentment: 54 Ga., 653. Indictment against Justice of the Peace for demanding more costs, etc., must specially set forth the merits of the complaint: 45 Ga., 557. Misnomer, when striking plea of, was error: 60 Ga., 656. Mur- der, in trial, identity of deceased left to jury when variance between name in indict-

ment and name proved : 11 Ga., 615. Indictment for, and verdict for involuntary man-

slaughter without stating the grade, judgment should have been arrested : 38 Ga., 117. Indictment for, and verdict finding defendant guilty of manslaughter, held to mean highest grade of manslaughter: 50 Ga,, 128. Names, abbreviation of, of grand jurors

in one plea and written in full in another, no variance : 7 Ga., 3. Courts take judicial notice of usual abbreviations of Christian names: 11 Ga., 227. Indictment not quashed because of variance in names: 63 Ga., 456; 46/269. Namesof grand jurors may be all 1212 PART IV.—TITLE I.—DIVISION XIII.

Of indictments, arraignments, trial, verdict, judgment and execution.

in one handwriting: 63 Ga., 318. Names of grand jurors set out with reasonable certainty, sufficient: 63 Ga., 616. Name of some grand jurors in indictment varying from

record of Court empanelling jury : 63 Ga., 641. Objections, for matters of form only,

cured by verdict : 59 Ga., 859. Offense ; one cannot be convicted of an offense different from that called on to answer: 30 Ga., 517. The description and not the name in

the indictment characterize the offense : 31 Ga., 206. Two grades of, charged, in different counts of indictment, and evidence leaves grade in doubt, defendant entitled to benefit of the doubt: 59 Ga., 307. Omission in indictment for burglary to specify felony defendant intended to commit, a fatal defect: 24Ga.,420. Blank left in indict-

ment, when immaterial : 34 Ga., 107. "In the name and behalf," etc., omitted, indictment quashed if excepted to at proper time: 37 Ga., 80. Indictment for murder good, though it omits to charge deceased was " in the peace of the State," and that defend-

ant was of sound memory and discretion : 63 Ga., 600. Particularity in setting out

offense, objects for requiring : 13 Ga., 396. Penalties under Act of 1833 against lotteries not enforced by indictment: 29 Ga.,623. Perjury, indictment not alleging that state-

ments were material, demurrable : 52 Ga., 242. Vagueness or incompleteness in indict-

ment for, must be excepted to before trial : 58 Ga., 336. Principaland accessory before

the fact may be indicted in same indictment : 45 Ga., 71. Principals in the first degree

: where indictment treats several defendants as 60 Ga.. 287 ; 28/604. Provisoes and exceptions; exceptions relied on to prevent bar of statute should be shown in the in-

dictment : 54 Ga., 58. As to framing bill under a statute containing provisoes and

exceptions : 13 Ga., 435 ; 16/200 ; 22/545 ; 26/593 ; 33/56, Suplt. Sufficient, indictment is, that states the offense in the terms of the Penal Code, or so plainlv that a jury may un- derstand it: 3Ga., 18, 417; 7/3; 11/53; 16/467, 600; 17/130, 290; 24/191; 26/614; 33/56; Suplt.; 45/555,57; 60/88; 61/635. Rule to determine sufficiency of indictment: 36 Ga., 447. Statute of limitations, it appearing on face of the indictment that the of-

fense was barred by, judgment arrested : 4 Ga., 335. Exceptions relied on to prevent

bar of, should be plead : 54 Ga., 55. True bill, indorsement of, on back of indictment,

without signature of foreman of grand jury, objection to, overruled : 17 Ga., 498. Venue, whether properly laid, question for the Court, where the facts are not dis-

puted : HGa.,253.

§4630. (4537.) (4518.) Costs to be paid by prosecutor. Upon every in- %29H2etseq. dictment the prosecutor's name shall be indorsed, who, upon the acquittal or discharge of the person accused, shall be compelled to pay all costs which have accrued, if the grand jury, by their foreman, upon returning " no bill," express it as their opinion that the prosecution was unfounded or malicious. [And whenever any person is prosecuted under any penal laws of this State, and said prosecution is abandoned before trial of the same, or a jury on trial of such prosecution finds the same to be malicious, said prosecutor shall be liable for all costs and (a) Acts of 1871-2, p. 53. jail fees, and the officer by whom the warrant is issued, shall, when the prosecution is abandoned or settled, as before stated, as soon as such prosecution is abandoned or settled, at once enter up a judgment against said prosecutor for all said costs, and enforce the same by an execution in the name of the State against such prosecutor, or by an attachment for contempt.] (a.) §4631. (4538.) (4519.) Persons acquitted and insolvents. A person §4709. against whom a bill of indictment shall be preferred and not found true by the grand jury, or who shall be acquitted by the petit jury of the offense charged against him or her, shall not be liable to the pay-

ment of the costs ; and in all such cases, as also where persons liable by law for the payment of the costs, shall be unable to pay the sa^me, it shall and may be lawful for the officers severally entitled to such costs, to present an account therefor to the Judge of the Court in which the said prosecutions were depending, which account, being examined and allowed by him, it shall and may be lawful for said Judge, by an order of said Court, to authorize and direct the Sheriff or clerk to retain for his own use, and to pay to the Attorney or Solicitor General, and other officers of the Court, the amount of their respective accounts, out of any moneys by him received for fines inflicted by the said Court, or collected on forfeited recognizances.

Order of Court for costs in favor of the Clerk of the Superior Court for amount due him, is a judgment against the public: 39 Ga., 578. Section referred to as to the lien of officers of the Superior Court not extending to moneys arising from fines inflicted

by any other Court : 54 Ga., 42. PART IV.—TITLE L—DIVISION XIII. 1213

Of indictment, arraignment, trial, verdict, judgment and execution.

§4632. (4539.) (4520.) Presentments treated as indictments. [All special (t>) Acts of 18 ' 3, p 5L presentments by the grand juries of this State, charging defendants ' with violations of the penal laws, shall be treated as indictments, and it shall not be necessary for the clerk to enter such presentments in full upon the minutes, but only the statement of the case, and finding of the grand jury as in cases of indictments, nor shall it be necessary for the Solicitor-General to frame bills of indictment on such presentments, but he may arraign defendants upon such presentments, and put them upon trial, in like manner as if the same were bills of indictment.] (b.)

Entered on the minutes of the Court : 1 Ga., 243. Difference between a presentment and an indictment : 9 Ga., 76. A presentment by the grand jury arresting the statute of limitations: 22 Ga., 98. Word "indictment" marked on a special presentment of the grand jury does not change its character as a presentment: 23 Ga., 576. When a presentment need not be read to the jury as a part of the proof: 23 Ga., 307. Indict- ment founded on a presentment sufficient if the jury be empaneled on the indictment alone: 25 Ga., 516. Indictment waived, and arraigned on the presentment: 29 Ga., 524.

§4633. (4540.) (4521.) Arraignments for small offenses. No person indicted, unless it be for an offense which may, on conviction, subject him or her to death, or imprisonment in the penitentiary for the term of three years or more, shall be put for his or her arraignment in the bar-dock, or other place set apart in the Court-room for the arraignment of prisoners. §4634. (4541.) (4522.) Copy of indictment and list of witnesses. Every person charged with a crime or offense which may subject him or her, on conviction, to death or imprisonment in the penitentiary for the term of three years or more, shall be furnished, previous to his or her arraignment, with a copy of the indictment, and a list of the witnesses who gave testimony before the grand jury.

Entitled only to a list of the witnesses sworn before the grand jury : 18 Ga., 194. No ground of error for the Court to enquire of the prisoner or his counsel if he waives the arraignment, bill of indictment and list of witnesses: 22 Ga., 212. The plea of not guilty is a waiver of all these things : 26 Ga., 593. Provision in the Constitution controlling this section : 43 Ga., 218.

§4635. (4542.) (4523.) In small cases a copy on request. Every person charged with an offense shall, at his or her request, or at the request of his or her counsel, be furnished with a cop}7 of the indictment and a list of the witnesses who gave evidence before the grand jury. List of witnesses sworn before the grand jury: 18 Ga., 194; 50/585.

§4636. (4543.) (4524.) Form of arraignment. Upon the arraignment of a prisoner, the indictment shall be read to him or her, and such prisoner shall be required to answer whether he or she is guilty or not guilty of the offense charged in the said indictment, which answer or plea shall be made orally by the prisoner, or his or her counsel. And if he or she shall plead guilty, such plea shall be immediately recorded on the minutes of the Court by the clerk, together with the arraignment, and the Court shall pronounce upon such prisoner the judgment of the law in the same manner as if such prisoner had been convicted of the offense by the verdict of a jury ; but, at any time before judgment is pronounced, such prisoner may withdraw the plea of "guilty" and plead "not guilty;" and such former plea shall not be given in evidence against him or her on his or her trial. Mistake in the pleading could be corrected where there were several indictments, and a pleading to one of them when he intended to plead to the other: 20 Ga., 674.

No error for a Court to ask of a prisoner or his counsel if he waives arraignment, etc. : 22 Ga., 212. If no difference between an indictment and a presentment, it matters not on which accused arraigned: 25 Ga., 516. Where no arraignment or plea: 34 Ga.,

323-4. Withdrawal of the plea of guilty which did not appear on the records : 42 Ga., 204. No other arraignment on new trial, having been once arraigned, plead not guilty and convicted : 49 Ga., 104. Arraignment need not be repeated after mistrial so 1214 PART IV.—TITLE L— DIVISION XIII.

Of indictment, arraignment, trial, verdict, judgment and execution.

as to try again on the same issue: 58 Ga., 35. Prisoner should be present to be ar-

raigned; recording of an arraignment : 60 Ga., 432.

Arraignment: 1 Bish. Cr. Proc.. #728 ; 1 Arch. Cr. Pr. and PL, 330. Must appear on

the record : 1 Hawley's Cr. Rep., 604.

§4637. Prisoner may make statement in cases of felony. [In all criminal (& Acts of trials in this State, the prisoner shall have the right to make to the 1868, 34. p. Qour£ an(} jury such statement in the case as he or she may deem A 0f [p ro ?r] i n his or ner defense, said statement not to be under oath, 1874,i87A J?99p. 22 P and to have such force only as the jury may think right to give it; [and the jury believe such statement in preference to Acts of 1878 may the sworn -97p.~53.~~ testimony in the case:] Provided, the prisoner shall not be compelled to answer any questions or cross-examination, should he or she think proper to decline to answer such questions.] (a.)

State can introduce evidence to contradict any facts set forth by the prisoner in his

statement : 45 Ga., 44. Court may remind the prisoner giving in a rambling statement to confine it to matters bearing on the case: 45 Ga., 58; Coxwell vs. State, Pamplt., February, 1881, p. 22. Prisoner's statement alone does not deprive him of the conclu-

sion of the argument : 48 Ga., 30. See Downing vs. State, Pamplt. Sept., 1880, p. 44. When prisoner's statement could not be viewed in the light of impeaching evidence: 48 Ga., 164. Omitting by the prisoner to make the statement not to be considered by the jury in determining his guilt: 50 Ga., 585-9; 60/255. Evidence of committing magistrate as to contradictory statements by the prisoner to him, not received: 54 Ga.. 156. Court should not discredit the prisoner's statement by comparing it with the evidence and showing discrepancies: 57 Ga., 503. Prisoner's counsel had no right to ask him questions when making his statement: 58 Ga., 214. Was not evidence before the Act of 1879, but only given such weight as the jury chose to: 59 Ga., 249; 60/212; 63/616-621, 668. §4638. (4544.) (4525.) Standing mute, or pleading not guilty. If the prisoner, upon being arraigned, shall plead " not guilty," or shall stand mute, the clerk shall immediately record upon the minutes of the Court the plea of "not guilty," together with the arraignment, and such arraignment and plea shall constitute the issue between the prisoner and the people of this State. Where silence of the prisoner and conduct in the presence of Court, and not object-

ing, authorized the Court to presume that there was an issue : 34 Ga., 325.

§4339. (4545.) (4526.) Demurrers or special pleas must be in writing. If the prisoner, upon being arraigned, shall demur to the indictment, or plead to the jurisdiction of the Court, or in abatement, or any special

plea in bar, such demurrer or plea shall be made in writing ; and if such demurrer or plea shall be decided against such prisoner then such prisoner may, nevertheless, plead and rely on the general issue of "not guilty."

Legitimate remarks of the Judge on motion to quash the indictment : 11 Ga., 53-57.

May take advantage of misjoinder of counts for distinct offenses by demurrer : 11 Ga.,

226. Plea of jeopardy for larceny as a defense against a charge for burglary : 5) Ga.,

625. Where a plea of former conviction for burglary on an indictment for robbery :

14 Ga., 8 ; 15/264. Plea of former acquittal should be on sufficient indictment: 17 Ga.,

439 ; the record of it : 26 Ga., 579 Motion ; 38/187 36/447. And must show ; 47/568.

to quash is a demurrer, and should be in writing : 22 Ga., 499. And should be filed on

arraignment and before plea: 22 Ga.~ 546 ; 41/484 ; 58/332. Too late to move to quash

an indictment after arraignment and the case is before the jury : 38 Ga., 491. Good special plea to an indictment made on arraignment that one of the grand jurors find-

ing the indictment or presentment was an alien : 53 Ga., 73. What not good in arrest,

and when plea of misnomer should not have been stricken : 60 Ga., 656. Plea of former acquittal of adultery and fornication with the mother will not avnil against a prosecution

for the bastardy : 58 Ga., 170. Fine for disorderly conduct, etc., in a municipal corporation can be enforced, although acquitted of assault and battery in State Court: 59 Ga., 168. When the finding for a minor offense would be an acquittal for the major

one : 58 Ga., 200; 62/167. When a plea of former conviction in an inferior Court plead

to an indictment for a misdemeanor in a Superior Court: 49 Ga., 375 ; 53/448. Evi- dence to show that offense charged in first indictment same as that charged in the sec-

ond one : 64 Ga., 505. , Demurrers and pleas in abatement should be in writing : 60 •Ga., 126. §4640. (4546.) (4527.) Issue may be recorded afterward. If the clerk shall fail or neglect to record the arraignment and plea of the prisoner PART IV.—TITLE L—DIVISION XIII 1215

Of indictments, arraignments, trial, verdict, judgment and execution. at the time the same is made, it may and shall be done at any time afterward, by order of the Court, and this shall cure the error or omission of the clerk. §4641. (4547.) (4528.) To be entered on the indictment. The arraignment and plea or answer of the prisoner shall be entered on the indictment by the Attorney or Solicitor-General, or other person acting as prosecuting officer on the part of the people of this State.

Where these were entered, but there was in fact no arraignment : 34 Ga., 323.

§4642. (4548.) (4529.) Prisoners not to be arraigned in fetters. No prisoner shall be brought into Court for arraignment or trial, tied, bound or fettered, unless the Court shall deem it necessary during his or her arraignment or trial ; and if the health of the prisoner, or other circumstances, should render it more convenient to the prisoner and his counsel that he or she should not be placed for his or her arraignment, or during his or her trial, within the bar-dock, or other place assigned in the Court room for prisoners, the Court may grant the indulgence of removing the prisoner to any place in the Court room, or contiguous to it, requested by the prisoner or his or her counsel. §4643. (4549.) (4530.) Challenges. Every person indicted for a crime or offense which may subject him or her, on conviction, to death, or four years' imprisonment, or longer, in the penitentiary, may peremptorily challenge twenty of the jurors impaneled to try him or her. And every person indicted for an offense which may subject him or her, on conviction, to imprisonment in the penitentiary for any time less than four years, may peremptorily challenge twelve of the jurors impaneled to try him or her ; and the State shall be allowed one-half the number of peremptory challenges allowed to the prisoner. State's peremptory challenges: 1 Ga., 618. Where one of three defendants elects to be tried separately, the trial the same as if separately indicted, and the Act of 1833 giving the State one-half the challenges allowed the prisoner, constitutional : 1 Ga.,

610 ; 2/173 : 59/84. Bias or prejuduce against crime no cause, but conscientious scruples are grounds of challenge : 3 Ga., 453.

§4644. (4550.) (4531.) In minor offenses. In all other cases the Court shall have a panel of twenty-four jurors, of which the prisoner shall have the right to challenge seven peremptorily, and the State five. The remaining twelve shall constitute the jury. Defendant and the State should alternate, the former beginning and ending: 19 Ga., 425. The practice now is too well settled of striking, as an equivalent for challenging: 29 Ga., 36. When two of the jury had been on the grand jury that found the indictment : 45 Ga,, 11. §4645. (4551.) Order of argument. [The order of argument of counsel (a) Act* oi P ' ' in criminal cases shall be the same as it now is in civil cases ; that is 242. to say, after the testimony is closed on both sides, the State's counsel shall open and conclude the argument to the jury, except in those cases in which the defendant shall introduce no testimony ; but, in that event, the defendant's counsel shall open and conclude the argument to the jury after the testimon}^ on the part of the State is closed.] (a.)

Solicitor-General may take anyplace on the side of the State he prefers : 15 Ga., 476. Two tried jointly, and witness introduced by one examined by the other, both introduced evidence, and State concludes: 59 Ga., 84.

§4646. (4552.) (4532.) Jury are judges of law and fact. On every trial §324$. of a crime or offense contained in this Code, or for any crime or offense, the jurv shall be judges of the law and the fact, and shall, in every case, give a general verdict of "Guilty," or "Not guilty;" and on the acquittal of the defendant or prisoner, no new trial shall, on any account, be granted by the Court. Juries are judges of the law, in what sense: 5 Ga., 441; 10/512. They may acquit, although the Judge charge them that if certain acts are proven the defendant is guilty according to law, although they may find those acts so proven, the Judge being their 77 ;

1216 PART IV.—TITLE I.—DIVISION XIII.

Of indictments, arraignments, trial, verdict, judgment and execution.

" safe and reliable adviser as to the law : 17 Ga., 49 ; 8/513. Office and power of juries

is judicial" : 18 Ga.. 231. Have the right to decide whether the Court states truly

what the law is : 22 Ga., 478. In recognizing the right of the jury to judge of the law, the Court should not doit grudgingly: 22 Ga., 212. To tell the jury they should not

differ with the Court without being clearly satisfied the Court is wrong, error : 25 Ga,, 527. This right of the jury is not to be impaired by the denunciation of the Court

that if they judge of the law and acquit they will violate their oaths as jurors : 30 Ga,, 383. On the contrary they are guilty of perjury, if when they cannot conscientiously adopt the law as expounded by the court, they fail to find a verdict according to the

opinion they entertained of the law : 30 Ga., 853. The jury must take the law as given

by the Court and apply it to the facts : 42 Ga., 9. "Judges of the fact" : 10 Ga., 512 20/156; 21/227. When the verdict of the jury will be disturbed as contrary to the law

and the evidence : 26 Ga., 276 ; 35/54; 22/499. It is no error in the Court after charging the jury that they were the judges of the law and fact, to say that he did not mean

that they might do as they pleased, or might disregard the charge of the Court : 40 Ga., 689. Judge should not charge the jury the defendant is guilty and you ought to find

him so : 34 Ga., 263. Yet the jury should receive the law from the Judge : 41 Ga., 217 ; 53/432-3. As to polling the jury: 52 Ga., 479; 57/285. Where waived: 59 Ga., 515. Where indicted in two counts, a verdict of "guilty of receiving stolen goods," without

more, is bad : 55 Ga., 191. Verdict received in prisoner's absence, legal jeopardy: 55 Ga,, 52; 59/515. When counsel may read law to the Court, and when to the jury: 55 Ga., 308. Jury get the law from the Court and facts from the witnesses, and then are to

judge of them : 49 Ga., 485. Where the verdict was too uncertain under a charge for

arson: 49 Ga., 451. When verdict not too uncertain : 54Ga,,242. Should not charge the jury that, they are in no sense judges of the law: 56 Ga., 61-64. All of the jury present at reading of the verdict sufficient, although one name omitted in calling

panel by the clerk : 58 Ga., 329-331. As to challenges of the jury: 59 Ga., 84. Where a general verdict of guilty held good, and presence of prisoner and counsel need not

appear by the record, and as to the sentence : 60 Ga., 430. Where a request by a part of

the jury could not be considered as a part of the verdict : 61 Ga., 45. Maybe guilty of the lesser offense where the higher is charged: 1 Ga., 222; 10/422; 12/350; 14/55; 25/396. Verdict not impeachable by juror's oath. 9 Ga., 121; 12/500: 17/146; 28/78, 200; 30/869; 36/380; 37/195; 39/718. When unsigned: 14 Ga., 18. When false or- thography occurs in: 14 Ga, 8. Jury will not be ordered to write it in a particular

form : 15 Ga., 210. But Judge may instruct them emphatically as to form of, when :

20 Ga., 156. When it is sufficiently certain : 25 Ga., 494. The Court may order an in-

complete verdict to be made complete before receiving : 26 Ga.. 593. General Verd

are good and some defective : 10 Ga., 48. Such verdict finds defendant guilty of the highest offense: 10 Ga., 48; 11/94; 40/529; 43/218. Upon an indictment in which there are several counts charging different grades of the same offense, with penalties

differing in degree only : 43 Ga., 218. In which different grades of the same offense are charged in the same count: 11 Ga., 226. " Guilty on the first count" a general verdict,

when : 14 Ga., 8. Presumed to be on the good count: 40 Ga., 529. Special verdict not

received : 28 Ga., 368; see also, a general note on verdicts.

§4646. (a.) In capital cases other than homicide. In all capital cases, Actsofi875, other than those of homicide, when the verdict is guilty, with a recom- p. ice. mendation of mercy, such verdict shall be held legal, and to mean imprisonment for life. §4647. (4553.) (4533.) Indictments triable at the term ivhen found. Every §§4693, 4709. person against whom a bill of indictment is found shall be tried at the term of the Court at which the indictment is found, unless the absence of a material witness or witnesses, or the principles of justice, should require a postponement of the trial, and then the Court shall allow a postponement of the trial until the next term of the Court; and the Court shall have power to allow the continuance of criminal causes from term to term, as often as the principles of justice may require, upon sufficient cause being shown on oath.

Where for a capital offense committed during the term, it could be tried at that > term: 9 Ga., 492. Continuance on the ground of excitement and prejudice: 9Ga.,

121; 33/98; 26/276; 24/297; 25/596; 32/58 L ; 41/527; 14/8; 7/373; 15/535; 18/567; 27/287. Absence of a witness to impeach State's witness, no ground for continuance

where that State's witness was not introduced : 7 Ga., 2. When Court's discretion in the continuance of criminal case controlled: 5 Ga., 48. But should be strict: 24 Ga., 297. Mere absence, without illness of counsel, without the consent of the client, no

ground for a continuance : 10 Ga., 85. Wrongful forcing into trial when a continu-

ance should have been granted, ground for a new trial : 14 Ga., 22. All grounds for a

continuance should be urged at once : 22 Ga , 212. Defendant entitled to a continu-

ance for the absence of witness out of the county : 29 Ga., 271 ; 40/529. When not to prove an alibi: 17 Ga., 439. But not where Court sends for and obtains his witnesses: 33 :

PART IV.—TITLE I.—DIVISION XIII. 1217

Of indictment, arraignment, trial, verdict, judgment and execution.

Ga.,98; 44/449. Nor where counsel for the State admits in writing the facts defend-

ant's absent witness would prove : 29 Ga., 681.

§4648. (4554.) (4534.) In cases not capital. Any person against whom Acts of iwo, 60# a true bill of indictment is found, for an offense not affecting his or her p * life, may demand a trial at the term when the indictment is found, or .at the next succeeding term thereafter, or at any subsequent term, by special permission of the Court, which demand shall be placed upon the |4709. minutes of the Court; and if such person shall not be tried at the term when the demand is made, or at the next succeeding term thereafter; (Provided, that at both terms there were juries impaneled and qualified to try such prisoner,) then he or she shall be absolutely discharged and acquitted of the offense charged in the indictment.

Defendant may make demand at. first, second or any subsequent term: 6 Ga., 491. And must be tried at term when demand made, or at next succeding term, or acquit-

ted : 15 Ga., 286; 9/307; 10/95-7. Must be made before the jury discharged, and doubts the construction of this section in Day vs. The State (6 Ga., 491): 18 Ga., 532. Where one of two jointly indicted had a right to a demand on the minntes: 20 Ga.,

666. Can make a demand notwithstanding the forfeiture of his bond : 21 Ga., 148. When not: 51 Ga., 192. Where demand made, the Court cannot order a mistrial ex-

cept for providential cause, without prisoner's consent : 25 Ga., 667 ; see also 54 Ga., 24. Minutes of Court must show the demand made to entitle the prisoner to a dis-

charge : 28 Ga., 64; 63/165. Demand made at first or second term, but not after : 25

Ga., 133 ; 26/231. And it must appear to entitle to a discharge that at both terms there

were juries empaneled and qualified to try : 57 Ga., 154.

§4649. (4555.) (4535.) Nolle prosequi, when and how allowed. [No nolle Acts of i8?7, prosequi shall be allowed, except it be in open Court, for some fatal de- p - 108,

feet in the bill of indictment, to be judged of by the Court, in which Acts of i87o, case the presiding Judge shall order another bill of indictment to be?- 422 - forthwith submitted to the grand jury]; (a.) but no nolle prosequi shall be entered on any bill of indictment after the case has been submitted pso. to the jury, except by the consent of the defendant. But a nolle prosequi may be entered by the Solicitor-General in any criminal case, with the consent of the Court, after an examination of the case in open Court. No nolle prosequi permitted after the case has been submitted to the jury, without

the prisoner's consent : 3 Ga., 53 ; 2/60. Solicitor, with the Court's consent, can enter

nolle prosequi as he sees fit, before the case submitted to the jury : 9 Ga., 306. Must be

made with the Judge's consent, and be placed upon the minutes : 41 Ga., 507. As to

the right of challenge after a nolle prosequi of the bill : 50 Ga., 559-560. Section cited and construed: 53 Ga., 606. Acquittal of the prisoner where, after the case was submitted to the jury, a nol. pros, is entered on a good indictment, without prisoner's consent: 55 Ga., 625. A nol. pros, of a bill of indictment discharged the securities on the

bond : 56 Ga., 589. Plea of nol. pros, of a former indictment held not good : 57 Ga., 478.

§4650. (4556.) (4536.) Petit jurors' oath. In all criminal cases the following oath shall be administered to the petit jury, to-wit u You shall well and truly try the issue formed upon this bill of indictment between the State of Georgia and A B, who is charged (here state the crime or offense), and a true verdict give according to evidence. So help you God." §4651. (4557.) (4537.) Witnesses' oath. The following oath shall be

administered to witnesses in criminal cases, viz : " The evidence you shall give to the Court and jury upon the trial • of this issue between the State of Georgia and A B, who is charged with (here state the crime or offense), shall be the truth, the whole truth, and nothing but the truth. So help you God." §4652. (4558.) (4538.) Oath of witnesses before grand jury. And the following oath shall be administered to witnesses intended to be sent

before the grand jury : " The evidence you shall give the grand jury on this bill of indictment (or presentment, as the case may be—here state the case), shall be the truth, the whole truth, and nothing but the truth. So help you God." :

1218 PART IV.—TITLE L—DIVISION XIII.

Of indictments, arraignments, trial, verdict, judgment and execution.

In every case in this Code, the person whose property has been stolen, injured, destroyed, taken away, or fraudulently converted or conveyed, or whose name has been forged to or | any instrument, who has received a personal injury, shall be a competent witness on the trial of the offender or offenders. On this oath: 15 Ga., 246. §4653. (4559.) (4539.) Several imprisonments to be in succession. Where a person shall be prosecuted and convicted on more than one indictment, and the sentences are imprisonment in the penitentiary, such

' sentences shall be severally executed, the one after the expiration of the- other shall specify in each : ; and the Judge the time when the imprisonment shall commence and the length of its duration.

§4654. (4560. ) (4540.) Fines, to whom to be paid and for what use. All Acts of 1875, fines imposed by this Code, not otherwise appropriated by this Code,. p- 88, shall be paid over by the Clerks of the Superior Court to the Ordinary of the county, for educational purposes in such county, except the county of Chatham, where the said fines shall be paid over to the cor-

poration of the city of Savannah ; and^the Ordinaries shall keep a fair account of the fines received, and the time when received, and the names of the persons from whom the said fines were collected. The officers of Court shall have a lien upon all funds arising from fines and forfeitures for the payment of their insolvent costs, before any specific appropriation shall be made of said funds for purposes of Sunday- schools, or other educational purposes.

: Payment of, enforced by imprisonment: 22 Ga., 98; 48/335; 23/230. When not by

a city : 51 Ga., 639. As to discharge of defendant from, by pardon from the Governor

51 Ga., 255. As to executions against property for : 48 Ga., 335. When misdemeanors- transferred from the Superior to the County Court, the surplus, after paying the officers-

of the Superior Court, paid over to the County Treasurer : 54 Ga., 40.

§4655. (4561.) (4541.) Paid immediately. Every fine imposed by the Court, under the authority and by virtue of this Code shall be imme- li diately paid, or within such reasonable time as the Court may grant. §4655. (a.) Fines and forfeitures to be paid into the county treasury. The

Acts of 1876, officers of the several Courts of the State, including prosecuting officers,,

p - m shall pay into the county treasury of the county where said Courts are- held, all moneys arising from fines and forfeitures by them collected, and, on failure to do so, shall be subject to rule and attachment, as in case of defaulting Sheriffs. " But no such officer shall be required to pay into the the treasury, as aforesaid, any such moneys, until all the Acts ofi878-le gal claims on such funds held and owned by said officers, bringing the -9, p. 189. money into Court, and the costs due the Justices of the Peace and constables in the particular case, by which the funds for distribution were brought into Court, shall have been allowed and paid." i §4655. (b.) Distribution offines and forfeitures. All such fines and forfeitures shall be, at each term of the Court, distributed by the solicitor under order of the Court, to such persons and according to the priorities now prescribed by law, and on his failure to do so, he shall be subject to a rule at the instance of any party aggrieved. §4655. (c.) Treasurer to keep said funds separate. Said moneys, so paidT Actsof i87fi, in, shall be kept separate and distinct from the county funds arising- p. iu8. from other sources, and distinct and separate accounts of said funds shall also be kept as to what Court the same was received from, by the County Treasurer, and the same shall be paid only for insolvent costs,, and in cases where defendants have been acquitted in the manner hereinafter directed. §4655. (d.) Claims on the fund, how paid. Any officer having a claim Acts of 1876, against said fund for insolvent costs, or in cases where defendant has p. 109. been acquitted, if the same accrued in the Superior Court (or a Magis- PART IV.—TITLE I.—DIVISION XIII. 1219

Of indictments, arraignments, trial, verdict, judgment and execution.

trate's Court prior to indictment), shall present to the Judge of the Superor Court thereof an itemized bill of costs claimed, and if the same shall be approved by him, he shall order the same entered on the minutes of said Court, and the same shall be a warrant on the County "Treasurer, to be paid by him out of any fines and forfeitures in the treasury received from the Superior Court.

§4655. (e.) Justices of the Peace and others, hoivpaid. Any officer of the Acts of is7r>, County Court, or any Notary Public, or Justice of the Peace, having p - m jurisdiction for the trial of misdemeanors in any county, having a like claim for costs, or before whom a preliminary investigation may be had, and also constables having a like claim for costs, shall present the same to the Judge of said Court in the form prescribed in the preceding section, and which order, when approved and entered on the minutes of said County Court, if any, and if not, then on a book prepared and Acts ofisso _1 p,! kept by said County Court, said Notary Public or Justice of the Peace ' for that purpose, the same shall be a warrant on the County Treasurer, to be paid out of any fines and forfeitures arising from proceedings in said County Court in accordance with the laws providing for the distribution of fines and forfeitures fn the Superior Court. §4655. (f.) Treasurer to make report to grand jury. The County Treas- Actsofisre, urer shall report to the grand jury, at each regular term of the Superior p - 109, 'Court, the amounts of fines and forfeitures received by him, and to whom disbursed, for the six months preceding said report, and shall receive, as his compensation, two and one-half per cent, on the amounts paid out by him. §4655. (g.) Local laws not affected. Nothing in the preceding sections Actsofi876, shall affect the distribution of funds arising from fines and forfeitures, p ' m -or the compensation of County Treasurers, as regulated by any local law. §4655. (h.) City Courts exempted. Nothing in the foregoing sections Acts of 1876, shall be so construed as applying to any City Court of this State: Pro- p ' m ' mded, that nothing in said sections shall be so construed as to authorize any Judge to draw his warrant to pay insolvent costs, or costs where the defendant has been acquitted, on any other fund in the county

treasury than the fund raised from fines and forfeitures ; and provided, further, that nothing contained herein shall affect any local law now in force in this State. §4656. (4562.) (4542.) Penitentiary at discretion, jury recommendation. In all cases where the term of punishment in the penitentiary is discretionary, the Court shall determine that punishment, paying due respect to any recommendation which the jury may think proper to make in that regard. Discretion of the Court below, in imposing penalties for crime, not generally disturbed: 60 Ga., 287 47/297. Where there circumstantial evidence to ; 35/241; was no base the jury's recommendation of the prisoner to mercy : 58 Ga., 264. §4657- (4563.) (4543.) Convicts soon and safely sent to penitentiary. Ev- *ery person convicted in any county of this State of any crime or offense punishable with confinement in the penitentiary, shall, as soon as pos- sible after conviction, together with a copy of the record of his or her conviction and sentence, be safely removed and conveyed to the said penitentiary by a guard to be sent therefrom for that purpose, and therein be safely kept during the term specified in the judgment and .sentence of the Court. See60Ga., 284-8. §4658. (4564.) (4544.) Clerk to notify the keeper. In all cases where persons are convicted and sentenced to imprisonment in the penitentiary, it shall be the duty of the Clerks of the Superior Courts of the respective counties where such persons may be convicted and sentenced, to 1220 PART IV.—TITLE I.—DIVISION XIII.

Of indictments, arraignments, trial, verdict, judgment and execution.

inform the principal keeper of the penitentiary immediately thereafter by mail, or by private conveyance, where there is no post-office in the county, of the conviction and sentence of said convict, and that he or she is detained in the county jail, or under guard, as the case may be, subject to the order of the keeper aforesaid. §4659. (4565.) (4545.) Trials for escapes from penitentiary. The trial of /rfJ&f. prisoners escaping from the penitentiary shall be had for such escape before the Superior Court of Baldwin county, and prisoners so escaping shall remain in the penitentiary and be treated as other convicts after

their apprehension, until such trial shall take place ; and upon such trial, the copies of the records transmitted to the keeper of the penitentiary, relative to the former trials of such prisoners, shall be produced and filed of record in the said Superior Court of Baldwin count}^.

§4660. (4566.) (4546.) Convicts confined in jail till sent for by' penitentiary- guard. When any person may be convicted of any offense which may subject him or her to confinement in the penitentiary, it shall be the duty of the presiding Judge, b}^ his sentence, to order the convict into cus-

tody, to be safely kept in jail ; or if there be no jail in the county, then in the nearest jail, or under a suitable guard, until he or she shall be demanded by a guard to be sent from the penitentiary for the purpose of conveying such convict to said penitentiary. §4661. (4567.) (4547.) No benefit of clergy. No person convicted of a,

crime shall be allowed the benefit of clergy ; and in all cases where the penalty of death is annexed to a crime, the convict shall suffer that. * punishment. §4662. Death by hanging. The sentence of death shall $a

y , /- A- j cution shall be provided by the Ordina^ of each county. The Judge r***^ *"// Pass i ng ^ ne sentence^may order the execution to be in public, if he sees; as thinks best to se- /f/, propers/and may,(m either easejtake such steps he cure the execution of the sentence and to determine when death super- venes. §4663. (4569.) (4549.) Judges to report the defects of the Code. It shall be the duty of the Judges of the Superior Courts to make a special report annually to the Governor of this State previous to the meeting of the General Assembly, and by him to be- submitted to the Legisla- ture, of all such defects, omissions, or imperfections in this Code, as ex- perience on their several circuits may suggest. §4664. (4570.) (4550.) Crimes to be punished under co-existing laws. All §2. crimes and offenses committed shall be prosecuted and punished under the laws in force at the time of the commission of such crime or offense, notwithstanding the repeal of such laws before such trial takes place.

: Stated : 35 Ga., 224. This law referred to : 3 Ga., 53. As to the selection of juries 20 Ga., 60, 156, 743. This section not affected by the Act of 1851-2 (p. 269): 12 Ga,, 1. The old penalty not superseded until the statute enacting the new one has been duly published: 34 Ga., 270. Law of this section applied where penalty was changed as to

burglary betwee'n time offense committed and trial thereof : 38 Ga., 585.

§4665. (4571.) (4551.) Limitations of indictments. Indictments for mur- Acts of 1855 der may be found and prosecuted at any time after the death of the per- • son killed. In all other cases (except murder) where the punishment A c'tJof f|59 p. 50. ' is death or perpetual imprisonment, indictments shall be filed and found in the proper Court within seven years next after the commission of the offense, and at no time thereafter. In all other felonies the indictments shall be found and filed in the proper Court within four years next after the commission of the offense, and at no time thereafter, PART IV.— TITLE L—DIVISION XIII. 1221

Of indictments, arraignments, trial, verdict, judgment and execution.

And in all other cases where the punishment by law is fine or imprisonment, or fine and imprisonment in the common jail of the county, indictments shall be found and filed in the proper Court within two years after the commission of the offense, and at no time thereafter : Provided., nevertheless, that if the offender shall abscond from this State, or so conceal himself that he cannot be arrested, such time during which such offender has been absent from the State, or concealed, shall not be computed or constitute any part of the said several limitations : provided, also, that no limitation shall run so long as the offender or offense is unknown : provided, further, that if the indictment is found within the time limited, andfor any informality shall be quashed or nol. pros'd, a new indictment maybe found and prosecuted within six months from the time the first is quashed or nol. pros'd.

No limitation as to murder, and runs as against manslaughter from the death : 1 Ga.. 222. Motion in arrest of judgment where offense appeared barred on the face of the indictment: 4 Ga., 335. May prove the crime was committed at any time within the statutory period of limitations; 11 Ga,, 53; 34/202; 13/396; 18/736. Where the limitation was as to the crime for which tried, and not the lesser one found guilty of, by the jury : 12 Ga., 350. A presentment by a grand jury stopping the running of the statute of limitations : 22 Ga., 98. Exceptions to the bar of the statute should be alleged in the indictment: 54 Ga., 58.

§4666. (4572.) (4552.) Become insane after conviction. If, after any convict shall have been sentenced to the punishment of death, he shall become insane, the Sheriff of the county, with concurrence and assistance of the Ordinary thereof, shall summon a jury of twelve men to inquire into such insanity ; and if it be found, by the inquisition of such jury, that such convict is insane, the Sheriff shall suspend the execution of the sentence directing the death of such convict, and make report of the said inquisition and suspension of execution to the presiding Judge of the district, who shall cause the same to entered on the minutes of the Superior Court of the county where the conviction was had. And, at any time thereafter, when it shall appear to the said presiding Judge, either by inquisition or otherwise, that the said convict is of sound mind, the said Judge shall issue a new warrant, directing the Sheriff to do execution of the said sentence on said convict, at such time and place as the said Judge may appoint and direct in the said warrant, which the Sheriff shall be bound to do accordingly. And the said Judge shall cause the said new warrant, and other proceedings in the case, to be entered on the minutes of the said Superior Court.

Proceedings under this section : 47 Ga., 549.

§4666. (a.) Lunatics, how disposed of. When any person shall, after Acts of 1874, conviction of a capital crime, become insane, and shall be so declared p- 30, in accordance with the provisions of section 4666, of the Code, it shall be the duty of the Judge to certify the fact, and the said convict shall be received into the Lunatic Asylum, there to be safely and securely kept and treated as other adjudged insane persons. §4666. (b.) Certain provisions made applicable. All the provisions of Actsofis74,

30 - the law, relating to insane persons under sentence of imprisonment in p" the penitential, shall apply to the class of cases herein provided for, so far as applicable. §4666. (c.) To be hung on recovery. If such convict shall recover, acts ofis74, the fact shall be at once certified by the Superintendent to the Judge of p ' the Court in which the conviction occurred, whose duty it shall be to have the convict removed to the jail of the county in which the conviction occurred, or to some other safe jail, and shall pass sentence either in term time, or vacation, upon the criminal, which shall be executed by the Sheriff, as in other cases. t §4666. (d.) Resolution concerning insane convicts. In every case where Acts of 1873, p< MK a convict is sentenced to the penitentiary of this State, and becomes 1222 PART IV.—TITLE I.—DIVISION XIII.

Of indictments, arraignments, trial, verdict, judgment and execution.

insane, whether in the hands of a lessee or otherwise, on the fact being established to the satisfaction of the Governor, he shall direct said convict to be removed to the Lunatic Asylum, there to be supported and receive medical assistance, as other pauper patients do, at the ex-

I pense of the State.

I I §4667. (4573.) (4553.) Female convicts pregnant. If a female convict, / Acts of 1874, sentenced to the punishment of death, shall be found pregnant with °0- p- child, the Sheriff, with the concurrence and assistance of the Ordinary, shall select one or more physician or physicians, who shall make inquisition, and if, upon such inquisition, it appear that such female

i convict is quick with child, the Sheriff shall suspend the execution of the sentence directing the death of such female, and make report of said inquisition and suspension of execution to the presiding Judge of

1 the district, who shall cause the same to be entered on the minutes of the Superior Court of the county where the conviction was had. And at any time thereafter, when it shall appear to the said presiding Judge that the said female convict is no longer quick with child, he shall issue a new warrant directing the Sheriff to do execution of the said sentence, at such time and place as the said Judge may appoint and

I direct in the said warrant, which the Sheriff shall be bound to do accordingly. And the said Judge shall cause the said new warrant and other proceedings in the case to be entered on the minutes of said Su- perior Court. §4668. (4574.) (4554) If execution is not done at appointed time. When- ever, for any reason, any convict sentenced to the punishment of death

: . , shall not have been executed pursuant to such sentence, and the same

I shall stand in full force, the presiding Judge of the Superior Court where t , the conviction was had, on the application of the Attorney or Solicitor-

J General of the district, or other person prosecuting for the State, shall

issue a habeas corpus to bring such convict before him ; or if such convict be at large, said Judge, or any judicial officer of this State, may issue a

[ warrant for his apprehension ; and, upon the said convict being brought before the said Judge, either by habeas corpus, or under such warrant, he shall proceed to inquire into the facts and circumstances of the case,

i and if no legal reason exists against the execution of such sentence, such Judge shall sign and issue a warrant to the Sheriff of the proper county, commanding him to do execution of -such sentence at such time and place as shall be appointed therein, which the said Sheriff shall do accordingly. And the Judge shall cause the proceedings in such case to be entered on the minutes of the Superior Court of the county.

Prisoner be sentenced for murder under this section in vacation : 50 Ga., 482. j, may §4669. (4575.) (4555.) Execution, within ivhat time from sentence. When- ever any convict shall be sentenced to the punishment of death, the Court shall specify the time and place of execution in such sentence, which time shall not be less than twenty days nor more than sixty days from the time of the sentence, except in the case of a female convict who is quick with child at the time, in which case the Court may and shall appoint some day that will arrive after she shall have been delivered of such child. ! §4670. (4576.) (4556.) Offenses on boundary lines. When an offense

§35. shall be committed on the boundary line of two counties, it shall be considered and adjudged to have been committed in either county, and an indictment for such offense may be found and tried in, and conviction thereon may be had in, either of said counties.* There should be positive proof as to the crime being committed in the county where

the trial took place : 48 Ga., 43 ; 56/66 ; 57/367. §4671. (4577.) (4557.) Death from an act done in another county. When :

PART IV.—TITLE I.—DIVISION XIII. 1223

Of indictments, arraignments, trial, verdict, judgment and execution.

any mortal wound shall be given, or any poison shall be administered, Acts ofisss or any other means shall be employed in one county by which a human "*»* 20d ' being shall be killed, who shall die thereof in another count}", the indictment shall be found and the offender shall be tried in the county where the act was performed or done from which the death ensued.*

Ordinarily on a trial for a homicide, need not show where the deceased died: 34 •Ga., 78.

§4672. (4578.) (4558.) Or on soil ceded to United States. If such wound §20. be given or poison administered upon soil, the jurisdiction over which has been ceded to the United States, within the geographical limits of this State, or within the territory of an adjoining State, and death shall ensue therefrom in any county in this State, the indictment shall be found and the cause tried in the county where the death occurs.* §4673. (4579.) (4559.) Lunacy and insanity. No lunatic, or person afflicted with insanity, shall be tried, or put upon his trial, for any offense, during the time he is afflicted with such lunacy or insanity, which shall be tried in the manner hereinbefore pointed out, where the plea of insanity at the time of offense is filed, and, on being found true, the prisoner shall be disposed of in like manner. §4674. (4580.) (4560.) The attempt never to be indicted. No person shall be convicted of an assault with intent to commit a crime, or of any other attempt to commit any offense, when it shall appear that the crime intended, or the offense attempted, was actually perpetrated by such person at the time of such assault, or in pursuance of such attempt.

Where may rind guilty of an attempt to commit a crime without a special count in the indictment: 10 Ga., 422; 14/55; 53/125. Count for rape and attempt to commit

rape in the same indictment : 11 Ga., 226. In what county tried : 26 Ga., 493-4. "Where

the prisoner under the evidence was not guilty of attempting to burn a house : 53 Ga.,

33. Cannot find guilty of an attempt to make an assault : 53 Ga., 205. Penalty for conviction under this section may be drawn from section 4712: 58 Ga., 200-202. Not convicted for an assault with intent to rape when the evidence is of a rape having been committed: 62 Ga., 558. Section cited where it did not come under its terms: 63 Ga., 404. §4675. (4581.) (4561.) Jury may always find the attempt. Upon the §4712. trial of an indictment for any offense, the jury may find the accused not guilty of the offense charged in the indictment, but guilty of an attempt to commit such an offense, without any special count in said indict-

ment for such attempt : Provided, the evidence before them will warrant such finding.

Without any special count: 10 Ga., 422; 53/125; 14/55; 58/200. But not of an attempt to make an assault, under an indictment for an assault with intent to murder 53 Ga., 205.

§4676. (4582.) (4562.) Two convictions, longest time. If any person, who has been convicted of an offense and sentenced to confinement and labor in the penitentiary, shall afterwards commit a crime punishable by confinement and labor in the penitentiary, and be thereof lawfully convicted, such convict shall be sentenced to undergo and suffer the longest period of time and labor prescribed for the punishment of such offense of which he stands convicted. §4677. (4583.) (4563.) On trials for escapes and mutiny. On the trial of any convict in the penitentiary for the crimes of escape and mutiny, or either of them, any other prisoner or convict, not included in the same indictment, shall be a competent witness, and the infamy of his character and of the crime of which he has been convicted shall be exceptions to his credit only. §4678. (4584.) (4564.) Impaneling jury. When any person stands

*Venue on such cases : 1 Bish. Cr. Law, $113 ; "Wells' Jur., ?312 et seq. ; Rorer Inter-

State Law, 239; 1 Bishop Cr. Proa, $45 ; 1 Whart. Cr. Law, $210, b; 1 Arch. Cr. Pr. and

PI., 216. Change of boundary by change of channel of stream : 30 Am. R., 142. 1224 PART IV.—TITLE L—DIVISION XIII.

Of indictments, arraignments, trial, verdict, judgment and execution.

(a} Acts of indicted for an offense which, upon conviction, may subject him to the 1855-6, p. punishment of death or imprisonment in the penitentiary, [a jury shall be impaneled as prescribed in section 3935 of this Code.] (a.) [Section (4585.) Superseded by Act of 1869, p. 141.] §4679. (4586.) (4566.) Patting panel on prisoner. The clerk shall make out three lists of each panel, and furnish one to the prosecuting counsel, and one to the counsel for the defense. The clerk shall then call over the panel, and it shall bs immediately put upon the accused. As jurors are called, the State mast put them upon the prisoner, or otherwise chal-

lenge them, either peremptorily or for cause : 1 Ga., 222. Panel put upon the prisoner, and on his arraignment and pleading it was again put upon him, held no error: 17 Ga., .130. New trial for failing to put the second panel of jurors upon the prisoner: 62 Ga., 731. §4680. (4587.) (4567.) Challenge to the array. The accused may, in writing, challenge the array for any cause going to show that it was not fairly or properly impaneled, or ought not to be put upon him, the sufficiency of which challenge the Court shall determine at once. If sustained,,

a new panel shall be ordered ; if not sustained, the selection of jurors shall proceed.

What selection of tales, jurors is good cause for : 1 Ga., 631. If array challenged, it lies in the discretion of the Court how to try it: 14 Ga., 26. That the last panel put upon the prisoner consisted of forty-seven instead of forty-eight jurors, does not entitle

him to a new trial : 22 Ga., 557. If not a full panel the challenge should be to the array :

27 Ga , 287. Challenge to the array on the ground that the jurors drawn, under the law providing that panels should he drawn for each week of the term, were serving more than one week: 31 Ga., 411. How waived: 38 Ga., 50. Overruled unless it should be

affirmatively shown that jurors had not been selected and sworn according to law : 42 Ga., 307. No ground for, that some of the jurors were summoned by a bailiff: 45 Ga., 225. Where the Court purges the juries, a challenge to the array should be allowed: 48 Ga., 353. Where too late to move to quash a panel because of one incompetent jury-

man, or those whose names not in the jury box, put on the prisoner : 47 Ga., 598. A

challenge overruled where there was no proof to sustain it : 49 Ga., 211-216. Where

no waiver, and the second panel is not put upon the accused, a new trial granted : 62 Ga., 731. §4681. (4588.) (4568.) Challenges for cause. On calling each juror, he- Acts of 1855 shall be presented to the accused in such a manner that he can dis- -6, p. 230. tinctly see him, and it shall be then lawful for the State, or the accused^ to make either of the following objections— viz: 1. That he is not a citizen, resident in the county.

Must be made before juror sworn : 19 Ga., 103, 614. Must show that a juror claimed

to have been born out of the United States was not naturalized: 22 Ga., 546 ; 58/492.

Resident jurors at the time of the trial : 27 Ga., 295. 2. That he is over sixty or under twenty-one years of age. Must be shown before the juror syorn in chief, and no ground for, after verdict and

known to defendant beforehand : 20 Ga., 752; but see 33 Ga., 403. Set aside after the statutory questions propounded, if the State not prejudiced thereby: 27 Ga., 287.

3. That he is an idiot, or lunatic, or intoxicated. Where juror intoxicated, the Court may set him aside of its own motion: 27 Ga.. 287. 4. That he is so near of kindred to the prosecutor, or the accused, or the deceased, as to disqualify him by law from serving on the jury. Where one of the jurors was cousin to the prosecutor: 28 Ga., 439. A juror having married the widow of the prosecutor's uncle, not incompetent: 47 Ga., 230. It shall be the duty of the Court to hear immediately such evidence as ^e submitted (the juror being a witness) in relation Act of 1799 may competent c. p. 546. ' to the truth of these objections; and if he shall be satisfied of the truth of either, the juror shall be set aside for cause, if either one of

these objections be true in fact ; but if the fact is unknown to either party, or the counsel of such party, at the time the juror is under investigation, and is subsequently discovered, such objection may be made, and the proof heard at any time before the prosecuting counsel submits to the jury any of his evidence in the case; but if known to PART IV.—TITLE I.—DIVISION XIII. 1225

Of indictments, arraignments, trial, verdict, judgment and execution. the party or his counsel, the objection must be made before the juror is sworn in the case. Where juror impanelled, and the solicitor discovers that one of the jurors was of those having found the bill, the Court may withdraw him unless both sides waive objection : 60 Ga., 601; 51/402-408. Objection to be made between the appearance and swearing of the jurors : 3 Ga., 453. Mode of procedure in this section where the incom- petency of the juror appears by newly discovered evidence, applies to the State as well as to the prisoner: 47 Ga., 598-606. Section cited and construed : 58 Ga., 402.

3 Whart. Cr. Law, §3112 et seq. Juror not understanding English, cannot be forced on prisoner, although his peremptory challenges are exhausted : 35 Am. It., 726.

§4682. (4589.) (4569.) Questions on voir dire. On all trials for crimes Acts ofisss: or offenses, on the criminal side of the Court, where the punishment is xc&of'mb- death or imprisonment and labor in the penitentiary, any juror may be -6, p. 231. put upon his voir dire, and the following questions shall be propounded to him, viz : "Have you, from having seen the crime committed, or Act of 1843,. C- p 843, having heard any of the testimony delivered on oath, formed and ex- " pressed any opinion in regard to the guilt or innocence of the prisoner at the bar?" If the juror shall answer in the negative, then the following question shall be propounded to him: "Have you any prejudice or bias resting on your mind either for or against the prisoner at the bar?" And if the juror shall answer these questions in the negative, the following question shall be propounded : " Is your mind per- fectly impartial between the State and the accused?" And if he shall answer this question in the affirmative, he shall be adjudged and held a competent juror, in all cases where the offense does not involve the life of the accused; but when it does involve the life of the accused, the following additional question shall be put to him : "Are you conscientiously opposed to capital punishment?" If he shall answer this question in the negative, he shall be held a competent juror: Provided, nevertheless, that either the State or the defendant shall have the right to introduce evidence before the Judge to show that the answers, or any of them, of the jurors are untrue ; and it shall be the duty of the Judge to determine upon the truth of such answers as may be thus questioned before the Court.

Where the juror answers the prescribed questions so as to appear prima facie com" petent, the Jndge may decline to have other questions asked, etc. : 9 Ga., 121 ; 21/220-

227 ; 32/672 ; 64/375, 404 ; 65/94 ; 3/453.

First question. Opinion from hearsay incompetent : 1 Ga. , 222, 631. So also when has a decided opinion: 1 Ga., 618; see also 14 Ga., 709; 2/173; 15/223; 24/297; 32/581; 45/225. When the formation, etc., is a ground for new trial: 5 Ga., 86: 9/121; 11/616 ;

12/25; 14/709; 15/223; 16/200; 17/146.497. The opinion to be deliberate and fixed :

12 Ga., 444; 18/383; 17/146; 32/581. Formation and expression, proof of, etc : 15 Ga.,. 476-498; 19/103. It is no ground of challenge against a juryman that he has formed and expressed an opinion, etc., upon one of the facts necessary to make out the charge against the prisoner, and it is not error in the Court to say in the presence of the panel that the formation and expression of an opinion as to the guilt or innocence of the principal in a crime does not render incompetent to sit on trial of accessorv before the fact: 45 Ga., 58. Second question. Bias or prejudice against crime, no disqualification: 3 Ga., 453;. 34/262. Bias and prejudice in the Act of 1843 defined: 12 Ga., 444. When it disqual- ifies : 14 Ga., 710 ; 25/494.

Third question. What answer to sufficient : 27 Ga., 287.

Fourth question. Scruples as to capital punishment : 3 Ga., 453 ; 17/140 ; 32/672. Acts of 1843 and 1855-6 do not affect section 4570 : 3 Ga., 55; 20/60, 156. 742. Misapprehen- sion of juror's answer: 8 Ga.,408; 17/194; 19/102. Juror's vindication: 5 Ga.,86; constitute a sufficient 14/709; 15/223, 535 ; 24/282 ; 43/485. Any objection which would cause for challenge for favor, good ground for new trial, if not discovered until after verdict: 5 Ga., 85; 15/223. Affidavit that it was not discovered before trial by whom to be made : 14 Ga., 709. If the Court thinks a juror misapprehends the meaning of the questions, he may re-state them, varying them in form : 21 Ga., 220-227 ; 22/212.

3 Whart, Cr. Law, $3063 ; 23 Am. D., 128, n. §4683. (4590.) (4570.) Setting aside for cause. If a juror shall answer any of these questions so as to render him incompetent, or he shall be so found by the Judge, he shall be set aside for cause. 1226 PART IV.—TITLE I.—DIVISION XIII.

Of indictments, arraignments, trial, verdict, judgment and execution.

§4684. (4591.) (4571.) Swearing in chief'. If found competent and not challenged peremptorily by the State, he shall be put upon the prisoner and unless challenged peremptorily by him, shall be sworn to try the cause.

Section referred to and construed : 60 Ga., 371.

§4685. (4592.) (4572.) No investigation before triers. When a juror has Acts of_i855 been found competent as aforesaid, no other or further investigation 25i. -6, p. before triors, or otherwise, shall be had, unless upon newly-discovered evidence to disprove his answer, or to show him incompetent as aforesaid, which may be heard by the Judge at any time before any of the evidence on the main issue is submitted; and if the juror is proved incompetent, the Judge may order him withdrawn from the jury and cause another selected in the same manner as is above pointed out.

as to triors: investigation, conducted : 11 Ga., 123 ; ; Law bow 19/102 14/22 ; 15/476,

498. By Acts of 1855-6 the Court takes the place of triors, and its decision is final : 20

Ga., 638; 23/57 ; 22/546; 25/593. Present practice as to : 43 Ga., 238. Decision of the Judge as trior in criminal cases on fact (as bias of jurors) submitted, is final and no mo-

tion for new trial for : 47 Ga., 598.

§4686. Criminal cases, where tried.. [Criminal cases shall be tried in (a) Const, of the county where the crime was committed, except cases in the Supe- 8 rt °' ' r sec 'i2, ri° Courts, when the presiding Judge is satisfied that an impartial jury dause'2. cannot be obtained in such county.] (a.) No necessity to charge defendant as a citizen of eounty, where offense alleged to have

been committed : 7 Ga., 3. And the Judge decides as to whether venue properly laid

in an indictment : 11 Ga., 253. Sufficient proof of crime being committed within the

Court's jurisdiction : 11 Ga., 615. Where may be convicted of an attempt : 26 Ga., 493.

Need not show where deceased died on an indictment for the homicide : 34 Ga., 78. late after arraignment case before the jury to object to indictment not alleg- I Too and

ing residence of the defendant : 38 Ga., 491. Error if the evidence does not show where

the crime was committed : 48 Ga., 43 ; 56/36. Not sufficient evidence to show proper

venue : 57 Ga.. 367. /Qf~ 7 *» §4687. (4593.) Venue, when and how changed. [The presiding Judge // J (t>2 Acts of shall be satisfied that an impartial jury cannot be obtained in the county

' p * ' where the crime was committed, only by an examination, careful and thorough, of the persons liable to serve on juries, such examination to be according to section 4682 of this Code partially or wholly according

to the nature of the case ; then if a jury cannot be obtained] (b.) [it shall be lawful for said cases to be transferred to any county that may be agreed upon by the Solicitor-General and the defendants or their C f counsel, be tried in the'county agreed upon and in the event the i85i4 p° and ; "' 162. ' Solicitor-General and the defendants or their counsel fail or refuse to agree upon any county in which to try said case then pending, the Judge is hereby authorized to select the county in which the same shall be tried, and have the cases transferred accordingly.] (a.) And it shall be lawful for the Judge of the Superior Court, when any criminal case Acts of 1874, has been once transferred, to again change the venue from the county to which the transfer was first made to any other county, in the same manner as the venue was first changed from the county in which the provisions of §652. , crime was committed, said change of venue subject to the section 4687 of the Code, and other laws not inconsistent with this section.]

Practice in regard to cases removed : 9 Ga., 128-9. Court's right to remove, how at- the tacked : 42 Ga., 307. Defendant applied for a change of venue on affidavit and

Court overruled the application ; 43 Ga., 483. How the Judge is to ascertain whether

an impartial jury cannot be had, so as to permit the changing of the venue : 54 Ga., 371.

Wells on Jurisdiction, §§122-131 ; 1 Bishop Cr. Proc, $68 ; 7 C. L. J., 118. Newspaper comments: 7 C. L. J., 76.

§4688. Duty of officers when venue is changed. [In all criminal cases in which a change of venue shall be made, it shall be the duty of the Sheriff of the county from which the prisoner is to be moved, to carry PART IV.—TITLE L—DIVISION XIII. 1227

Of indictments, arraignments, trial, verdict, judgment and execution.

said prisoner to the county to which the change of venue was directed, (a) Acts of 8, p- and deliver the prisoner to the Sheriff of said county, who shall then J^j take charge of such prisoner as in other cases. It shall further be the duty of the Sheriff' of the county from which the prisoner is to be removed, to carry with him and deliver to the Sheriff" the warrant under which the prisoner was arrested, or the commitment. It shall be the duty of the Clerk of the Superior Court of the county from whiv'h the prisoner has been removed, to send a true transcript of the order for the change of venue, together with the evidence before the Court of inquiry, and all other papers connected with the case, to the Superior Court of that county to which the prisoner has been transferred.] (a.) Acts of §4689. Costs, by whom and how paid. [The whole costs of the case, {*>) PP when changed, shall be borne by the county from which the case is 49' 50.' removed. The jail fees, if any, of the person to be tried, shall be collected and paid by the County Treasurer of the county from which the case was removed; the mode of collecting these fees, and regulating the amount of fees, is the same as in other like cases. The entire Court costs, including the costs of Sheriff, bailiff, clerks and jurors, shall also be paid by the County Treasurer of the county from which the case was removed, and shall have the same priority as jail fees, and shall be paid to the County Treasurer of the county where the case is tried, after having been first paid by the County Treasurer of the county where the case is tried.] (a.) §4690. Fees of witnesses, hoiv and by ivhom paid. [Witnesses attending (c> Acts of Courts out of the county of their residence, for the purpose of testifying in such cases, shall receive the fees of witnesses as prescribed in section 3845 of this Code, who shall be paid by the County Treasurer out of the county funds of the county where the case removed did origi- nate.] (c.) §4691. (4594.) (4573.) Penitentiary imprisonment is disqualification. Any §129, (3.)" person sentenced to confinement and labor in the penitentiary is, and shall be thereby, rendered incapable of holding or exercising any public or private office, trust, power, or authority, and any such held by him shall become and be vacant by virtue of such sentence.* §4692. (4595.) (4574.) Separate trial of joint defendants. When two or Acts of 187* ~ 9, p °9 ' more persons shall be jointly indicted for any offense, whether the * offense shall be such as requires the joint action and concurrence of two or more persons or not, they shall be separately tried, if they or either of them elect so to sever; and when defendants are separately tried they shall be competent to testify for or against each other. If the offense be such as requires the joint action and concurrence of two Act f 1836> or more persons, the acquittal or conviction of one shall not operate as c. p. 8^» an acquittal or conviction of any of the others not tried, but they shall -g, p. 266. C on808, be subject to be tried in the same manner: Provided, that the State p g| also shall have the right of severance on the trial.

In such case the trial of one is to be considered as if he alone had been indicted : 1 Ga., 610. And where such defendants elect to sever, State's counsel can elect which shall be tried first: 7 Ga., 2 ; 58/577-580. Section construed : 34 Ga., 17; 51/377. De- fendants can sever at their option, only in offenses that do not require the joint action of two or more : 37 Ga., 80. One of several jointly indicted can move for a demand on the minutes, for trial : 20 Ga., 666. On conviction of three, one or more can apply and obtain a new trial for themselves alone, and verdict stands as to others : 51 Ga., 164.

1 Bish. Cr. Proa, §1018; 3 Whart. lb., $3199. §4693. (4596.) (4575.) Continuance by one. The continuance of a case Acts of isr.s.. p " by one of several defendants indicted jointly shall in no case operate* as a continuance as to the other defendants objecting thereto. §4694. (4597.) (4576.) Opprobrious words may be proved in defense. On

-See Constitution of 1868, Article II., section 3. 1228 PART IV.—TITLE L—DIVISION XIII.

Of indictments, arraignments, trial, verdict, judgment and execution.

1 £ : _

§§4357, 4363. the trial of any indictment for an assault, or an assault and battery, the defendant may give in evidence to the jury, any opprobrious words, or abusive language used by the prosecutor or person assaulted or beat-

en ; and such words and language may or may not amount to a justification, according to the nature and extent of the battery, all of which :shall be determined by the jury. Opprobrious words only a defense where uttered in the presence of offended party

who at once resents it, etc. : 41 Ga., 527. Where it would not have been an excuse for

an assault and battery, if proven : 12 Ga., 463. Did not enter as element of defense in certain cases of homicide: 55 Ga.,48; 58/212-215; 59/391-2. Opprobrious words will not justify a stabbing: 56 Ga., 409. Section referred to and construed in a case of an •assault with intent to murder: 61 Ga., 380-381.

§4695. (4598.) (4577.) Oath of inquest of insanity. On the trial of the question of insanity, arising after the person shall have been condemned to die, provided for by section 4666 of this Code, the following " oath shall be administered to the jury, to-wit : You, and each of you, do solemnly swear (or affirm) that you will well and truly try this issue of insanity between the State and A. B., now condemned to die, and a true verdict give according to evidence. So help you God." §4696. (4599.) (4578.) In capital or penitentiary cases. On the trial of all cases where the party, if found guilty, would be subject to confinement in the penitentiary, or any greater punishment, it shall be the duty of the presiding Judge to have the testimony given in said case taken down; and in the event of the jury returning a verdict of guilty, the testimony shall be entered on the minutes of the Court, or in a book to be kept for that purpose.

. Either party can have the evidence so taken down in writing, read over to witness f

before he leaves the stand for correction : 12 Ga., 142. Where the Court should not Instruct the jury to be governed by the brief of evidence taken down and read over to them: 15 Ga., 476. Failure of the Judge to have this duty of taking down the evi-

dence in a trial of felony, not ground for a new trial : 18 Ga., 460. Copy of may be

used in an application for a pardon : 24 Ga., 623. The rule fully stated : 25 Ga., 520.

i It should be read to the jury when they differ as to what the witness stated, the wit-

ness not being present : 26 Ga., 156; 43/368. Court can allow witness' evidence taken

down, to be read for correction, in the jury's presence : 27 Ga., 648 ; 41/484. This right

the witness alone can claim : 42 Ga., 10. The Court itself may take down the evidence : 28 Ga., 576. It need not be read over to a medical witness for him to express an

opinion as to the sanity or insanity of the accused : 31 Ga., 424. Should not allow testimony thus taken down to be discredited by showing that the penmanship was in an inexpert and bungling manner: 33 Ga., 303. It is presumed the testimony was prop-

erly taken down : 42 Ga., 10. It is not error to direct the testimony to be taken down

in a case where the law does noi require it to be done : 43 Ga., 368 ; see also notes to section 4637.

^jf C^Zcr §4696. (a.) Judges may appoint reporters. The Judges of the Superior Actsofi876/tourts of this State shall have the power to appoint and at pleasure, P 133 remove a reporter or stenographic reporter for the Courts of their re- / z/ /-r> ? C^^n^yjT' * • spective circuife!>^cfi reporter, before entering on the duties of his * office, shall be duly sworn, in open Court, faithfully to perform all the

duties required under this division ; and it shall be his duty to attend all Courts in the circuit for which he is appointed, and, when directed by the Judge, as hereinafter set forth, to exactly and truly record, or take stenographic notes of the testimony and proceedings in the case tried, except the argument of counsel. §4696. (b.) Compensation in criminal cases. The compensation of the

Acts of 1876, reporter, or stenographic reporter, for taking down the testimony in the p- to recorded, JJ& _ trial of such criminal cases as are now required by law be shall not exceed fifteen dollars per day, to be fixed by the presiding Judge, which sum shall be paid by the County Treasurer, or other officer having charge of the county funds of the county wherein such criminal case shall be tried, on the certificate and order of said Judge, as to the number of days he has been employed. In cases of conviction, the costs of reporting, as provided in this section, shall be entered up against the PART IV.—TITLE L—DIVISION XIII. 1229

Of indictments, arraignments, trial, verdict, judgment and execution. * defendant, on which judgment the Clerk of the Superior Court shall issue execution, and the money arising therefrom shall be deposited in the treasury of the county, where such conviction was had, to be held as other county funds are held. §4696. (c.) Compensation in civil cases. The compensation of the re- Actsofi^',,

porter or stenographer for recording, or taking stenographic notes, and p * m recording the evidence in such civil cases, as maybe agreed by counsel for plaintiff and defendant to be recorded, or in cases of disagreement, as aforesaid, in such cases as the presiding Judge may direct to be recorded, shall be at a rate not to exceed ten cents per hundred words, to be fixed by said Judge, which fee shall be paid by the parties to the agreement, upon such terms as they may prescribe for themselves, and if no agreement is entered into as to the payment thereof, then in such manner as may be prescribed by the presiding Judge. §4696. (d.) Furnishing reports, etc., fee. Said reporter or stenographer Actsofi876, shall, for reports of evidence, and other proceeding by him furnished, p< 133, be paid by the party requesting the same, at a rate not to exceed ten cents for each one hundred wr ords. §4697. (4600.) (4579.) Form of sentence. In sentencing a person convicted of an offense subjecting him to penitentiary imprisonment, the Judge shall sentence so as to authorize his confinement and labor in the penitentiary of this State, or at such other place or places as the Governor of this State may direct.

Mitigation of sentence by the Judge after orally pronouncing it: See 60 Ga., 287-8. §4698. (4601.) (4580.) Commutation for good behavior. The superin- Actsofi874, tendent or principal keeper of the penitentiarv shall keep a book in^. which shall be entered the names of the convicts sentenced for a term ^ of or tr*~y^'7' * two more years ; opposite to each name shall be placed by the J^ book-keeper a mark of approbation or disapprobation, according to the conduct of each • and should it appear from this book that the conduct of any one is unexceptionable, then such convict's time of confinement (except confinement for life) shall be shortened four days in each and every month for the time they shall have so served. §4699. (4602.) (4581.) Collection of costs. The costs of any prosecution Act ofisie, shall not be demanded of any defendant (except the fees of his own ac?'oMS20, r c. 859 witnesses) until after conviction or escape ; in either of w hich cases i>. judgment may be entered up for all costs accruing in the committing c. p. 859. C 830 or Superior Qourts, by officer pending the prosecution on ' and any — ^ p°/6J wr hich judgment the clerk shall issue execution against all the property of the defendant—and such judgment shall have a lien upon such

1794 2675 - property from the date of the arrest of the defendant. In cases of con- §§ - viction, the Court may nevertheless direct the defendant to be imprisoned until all costs are paid. Cost will officer railroad bears ex- not be allowed to an arresting as for fare ; county pense of necessary guard, and cash belonging to the prisoner in the officer's hands, judgment will be entered up against, and it applied to the costs : 9 Ga., 109. There is no authority for the Sheriff to seize the defendant's property and hold the same for costs, unless the magistrate issuing the warrant so directs: 11 Ga., 128. Lien of a judgment for costs : 13 Ga., 493. Cost not collected in a criminal case until after con-

viction : 33 Ga., 338. Tbe law in force at the time the crime was committed governs as

to costs : 34 Ga., 204. A Court of inquiry cannot give final judgment for costs against defendant, except for his own witnesses: 40 Ga., 478. Where power was in the Court after conviction of the defendant for a misdemeanor to order execution issued for costs

against defendant's property : 48 Ga., 335.

Costs not released by pardon : 14 Am. R., 498 ; 21/487.

§4700. (4603.) (4582.) Discharge of insolvents by Ordinary 's Court. IfActofi847, P any prisoner in the common jail, after the time of his imprisonment ^) Actsof expires, or otherwise, is detained merely until his costs, [or until fixte.1861, p.57. .and costs are paid, and the Ordinary is satisfied that he is unable to pay 1230 PART IV.—TITLE L—DIVISION XIII.

Of indictments, arraignments, trial, verdict, j\idgment and execution. it ' .

the costs and fine, or either of them, said Ordinary may discharge such prisoner from further confinement.] (a.) §4701. (4604.) (4583.) Bail taken only twice. No person shall give bail •§4747. more than twice after indictment or presentment found for the same Act of 1832, «• c. p. 862. onense. §4702. (4605.) (4584.) Proceedings to forfeit recognizances. Upon th Act of 1830, failure to appear of any principal in any bond or recognizance givena 86i. c. p. \yy a pergon charged with a penal offense, or by a prosecutor to prosecute, or by a witness to appear and testify, the prosecuting attorney shall proceed to forfeit such bond or recognizance in the Acts of 1878 manner heretofore practiced in this State : Provided, that no recognizances in criminal cases called out of the regular order in which they appear on the docket, shall be forfeited for the non-appearance of the principal, unless the Solicitor-General, or other prosecuting officer,, shall state in his place that the State is ready for trial. What is a legal bond, and when the condition of it is forfeited: 2 Ga., 137. What

the recognizance should contain as to cause of taking it, etc. : 2 Ga., 363. When suffi-

cient, and the condition was broken : 22 Ga., 417-418. The record should show the- principal was called and failed to appear, before bail can be made liable in a criminal

case : 4 Ga., 329. Obligor in a bond is not bound to appear before indictment : 18 Ga. v 314; 24/420, 235. Property of the cognizor not bound until the recognizance forfeited and reduced to judgment: 24 Ga., 261. A scire facias to forfeit a bond describing the offense with sufficient certainty: 61 Ga., 197.

§4703. (4606.) (4585.) Judgment against bail. The clerk shall issue a Ct 831 ' sc ^re a€^as on a forfeited bonds, recognizances, or other obligations, r °Ll f ^ returnable to the next term of such Court, against the principal and his sureties, which shall be served by the Sheriff or his deputy, at least §§3417,4263. twenty days before the return thereof, or if the party resides out of the count}^ or State, scire facias may be served by publication, as in cases of scire facias to revive judgment. And if, at such return term,, no sufficient cause be shown to the contrary, judgment, on motion,, shall be entered against such principal and sureties, or such of them as have been served.

Judgment of forfeiture need not state the amount of the bond : 9 Ga., 49. The

scire facias is amendable at the trial term, so as to make it conform with the bond : 13- Ga., 190. Until moneys on forfeited recognizances are collected, it is competent for

the Legislature to remit the penalties : 15 Ga., 481. Scire facias issues from the Court

of the county where the indictment was: 17 Ga , 437. Surprise of the party or counsel by misunderstanding of the Court, is ground for setting aside the judgment or order of the Court because of the mistake: 18 Ga., 275. Bond conditioned to appear on the

fourth Monday in August next, meant the August of the following year : 21 Ga., 153.

Judgment of forfeiture set aside for surprise, mistake, etc. : 17 Ga., 462. Death of the principal in a recognizance after forfeiture, but before judgment, exonerates the securi-

ties : 32 Ga., 663. Giving a bail bond did not exonerate from military service : 34 Ga.,. 25-27, 206. A recognizance by a master for the appearance of a slave was not operative after the abolition of slavery; 34 Ga., 546. Conditioned that the principal attend at a

certain term of the Court, and from term to term until discharged, sufficient : 35 Ga. r . 180. For a pardon to the principal to avail as a defense to the sureties on the bond, it should be shown that there was delivery to, and acceptance of, the pardon by the principal: 44 Ga., 381. Sureties should be allowed to show sickness of the principal to

prevent judgment for his non-appearance : 45 Ga., 9. And as to the right of sureties

to surrender their principal at the return term of the scire facias on the bond : 45 Ga., 9. Securities on bail bond released by the subsequent arrest of the principal on a bench warrant: 51 Ga., 159. Recognizance forfeited, the clerk should issue a, scire facia*, returnable to the next term of the Court: 51 Ga., 524. Where the security may have been misled by the Solicitor-General, and the Court will set aside the judgment of for-

feiture, although it was entered on the minutes : 51 Ga., 171. Can be no discharge except by the surrender of the prisoner to the custody of the Court or its officers, evidence of which would be an entry on the minutes of the Court: 53 Ga., 167. Not. pros, of a bill of indictment releases the sureties on defendant's bond: 56 Ga., 589. Where surety cannot take advantage of a misnomer in the indictment, or because three of the grand jurors finding the indictment were not on the list of legal jurors for the county: 59 Ga., 707. State could not forfeit the bond of a surety for the appear-

ance of the defendant, where such defendant is in custody in the penitentiary : 58 Ga;r 341-2. Where supersedeas bond transferred the custody of the defendant from his bail

on the first bond to the securities on the supersedeas bond : 59 Ga.. 882-3. The Judge should identify the recognizance, the indictment and preliminary affidavit and warrant ' '

PART IV.—TITLE I.—DIVISION XIII. 1231

Of indictments, arraignments, trial, verdict, judgment Mid execution.

__ , * as evidence offered on trial of scire facias: Gl Ga., 492. Scire facias to forfeit a recognizance sufficiently describing the offense: Gl Ga., 197. Forfeiture of a voluntary bond executed in New York, in a criminal case, enforced by a scire facias: 63 Ga., 702.

When sickness of defendant a defense against recovery of costs : 64 Ga., 442-3. Where sureties on a bond not subject to forfeiture for failure of the principal to appear at any subsequent term after the first, being no provision in the bond except for appearance at the first term : 65 Ga., 341.

Brandt on Suretyship and G., $426 ; 1 Am. R., 377. Surety discharged by death of principal: 30 Am. R., 56, n. Imprisonment of principal on another charge in another county or State, good defense, when : 4 Am. R., 26, 58 ; 16 Wall., 366 ; 29 Am. R., 464 ;

32/571 ; 35/437. Sickness of defendant on day for appearance, and subsequent appearance as soon as well, good defense : 21 Am. R., 62.

§4704. (4607.) (4586.) Surrender of bail. Bail can surrender their §4746. principal to the Sheriff in vacation as well as in open Court. Or to his deputy, between the time of judgment nisi and final judgment, by the payment of all costs accruing up to that time : 62 Ga., 267. Where security misled by the solicitor as to the time to have defendant in Court, authorized the setting aside of the judgment of forfeiture : 51 Ga., 173.

§4705. (4608.) Punishment minor offenses. [All crimes designated i for (a Acts of " 5 6 p ' in the Penal Code of this State, punishable by fine and imprisonment, Joo ' or either, shall be punishable in the manner hereinafter set forth, that J^10m is to say, the punishment for any of the aforesaid crimes hereafter com- jc*-p * ^_ mitted, shall be a fine not to exceed one thousand dollars, imprisonment *^^'V ^ 2^*^ not to exceed six months, to work in a chain-gang on the public works, fr**^** not,to exceed twelve months, and any one or more of these punishments J

§4706. (4609,4610.) (4588.) Settlement of criminal cases. [All cases of Act of i850. indictments, or special presentments, shall be submitted to and passed °-p- m - upon by the jury, under the direction of the presiding Judge, unless (&\ Acts of \*' °' p ' there is a settlement thereof between the prosecutor and defendant, 2 which settlement shall be good and valid only by the approval and order of the Court on examination into the merits of the case.] (a.)

When within Judge's discretion to refuse to allow a case to be settled: 27 Ga., 197.

Unexecuted agreement to settle, no bar to a prosecution : 33 Ga., 131-2. Prosecuting for obstructing legal process not settled under this section: 41 Ga., 507. Neither can

the offense of hog stealing be settled under this law : 44 Ga., 301. What cases the Act

of 1870 in this section affects the right to settle, after action taken by the grand jury : 53 Ga., 353-6. A compromise of a suit under the Act of 1871, where signed by counsel for the State, order taken in open Court and entered on the minutes of Court, signed by the Judge: 64 Ga., 562.

i §4707. (4611.) (4590.) Excessive costs, misdemeanor. Any officer of Court Act of 1850, c p- 8(>4 ' knowingly demanding as costs from a defendant, fees to which he is ' not entitled, [and any Attorney or Solicitor-General who shall demand

or receive any fee, or costs, on any criminal case which has not been i86i, p. ea. tried by a petit juiy, or otherwise finally disposed of, shall be guilty of a misdemeanor, and, on conviction, shall be punished as prescribed in section 4310 of this Code.] (a.)

Only public officers can be convicted of extortion : 56 Ga., 385.

§4708. (4612.) (4591.) Two returns of " No bill," bar. Two returns of Act ofi850, p ' "No bill" by grand juries, on the same charge or accusation, shall be a " bar to any future prosecution for the same offense, either under the same or another name, unless such returns have been procured by the fraudulent conduct of the person charged, on proof of which, or of newly discovered evidence, the Judge may allow a third bill to be presented, found and prosecuted. §4709. (4613.) (4592.) Insolvent costs, how paid. When costs are not

*The penalty of whipping is stricken from section 4705, because repealed by Constitution of 1868, Article I, section 22. 78 1232 PART IV.—TITLE I.—DIVISION XIII.

Of indictments, arraignments, trial, verdict, judgment and execution.

.*o Acts of recovered from the defendant, the same shall be paid to the respective

PP ' asf 26 officers out of money received for fines, upon orders regularly presented Act of 1849, and allowed and entered on the minutes of the Court. [Out of all Act 'ofi 850, moneys arising from fines imposed, inflicted or collected, on forfeited c. p. 863. recognizances in the Superior Courts of this State, or for a violation of the penal laws of this State, the officers bringing the money into Court, §§4630, 4631. snai] have the money thus brought into Court by them, first applied to the extinguishment of their insolvent list pro rata, and then the orders of former officers paid in proportion to their claims.] (a.) Upon application of the Ordinary, the grand jury may, at any term, require an exhibit from the Solicitor-General and clerk, showing the disposition of all money arising from fines, and the present state of their accounts.

Oldest order to be paid first where two Solicitors-General have orders for costs : 2 Ga., 282. Order of Court in favor of a clerk for, where counties divided: 39 Ga., 581. As to enforcing payment of fines by imprisonment: 22 Ga., 98.

§4709. (a.) On same footing with officers of Superior Court. Justices of

Acts of 1874, the Peace, and constables, shall stand upon the same footing with the °ffi cers °f the Superior Court, who bring the money into Court, as to F§463i 4709 ' §292. ' costs due them in criminal cases. §4709. (b.) Duty of committing Justice. It shall be the duty of a Jus- Actsof 1874, tice of the Peace, who commits a prisoner to jail, or binds him for his p - 9L appearance at the Superior or City Court, to answer to a criminal offense, to make out a bill of the costs which may have accrued in the

Court below, and send it up with the other papers in said case ; and it shall be the duty of the clerk of said Court to tax said costs with the other costs which may have accrued in said case in the Superior or City Court, as the case may be; and it shall be the duty of the Sheriff of said county to collect the costs due said Justice and constable with the other costs in said case, and pay them over to the officers entitled thereto. \/fZ -*£f&'> §4-709. (c.) Insolvent costs, how paid. Costs due said Justices and constables, in cases where parties have been acquitted, or wT here they are /f-* //?/ Actsofi874 9i. */' v- ' unable to pay costs, shall be paid out of fines and forfeitures, as is now

provided, upon the order of the Judge of said Court ; and said claims of said Justices and constables shall be considered of equal dignity with the accounts of the officers of said Court, and entitled to participate pro rata upon a distribution of any funds arising from fines and forfeitures. §4710. (4613.) Docket, how called. The cases on the criminal docket

Cai Acts of shall be called in the order in which they stand on the docket, unless 1862-3, p. ^ e defendant be in jail, [or otherwise in the sound discretion of the Court,] (a.) and the State shall be required in every case to announce

(b> Acts of ready or not ready for trial, [except in those cases where the defendant 1862-3, p. L38. j s entitled by law to demand a trial,] (b.) before the defendant shall

be called on to make such announcement ; and in all cases in which §§3531, 4648. ^ ne defendant cannot according to law demand a trial, a continuance shall not be granted to the State, except upon a reasonable showing

• therefor.

Formerly defendant might be compelled to announce first whether he was ready : 21 Ga,, 220-227. And the State might continue without showing being made by it: 26 Ga., 231. §4710. (a.) Judge may strike certain cases. It shall be lawful for the Acts of 1876 Judge presiding at any Superior Court in this State to strike from the p- " docket any criminal case, where there has been no appearance of de- Acts of 1876, fendant, and where said Judge has good reason to believe there will be no appearance. And when any case shall be stricken from the §267 - docket, as provided in the preceding section, said case shall at once be transferred to the docket for criminal cases which have remained on PART IV.— TITLE L—DIVISION XIV. 1233

Of contempts of court, and attempts to commit crime.

the docket for five years. And when any case is stricken, as herein Acts of 1876,

' yy ' provided, all witnesses who may have been subpoenaed in such case, p shall be released from further attendance, until they have been re-subpoenaed. General Note. —What sufficient indictment for keeping open a tippling-house on

Sundajr : 3 Ga., 18. Evidence of attempt of defendant to bribe his guard in order that he might escape, as showing his guilt: 11 Ga., 123. When necessary to ask prisoner if he had anything to say why judgment of death should not be pronounced : 11 Ga., 253; 28/576. Counsel should suggest it to the Court at the time, if instructions were not explicit enough : 14 Ga.. 55. Where a charge, although an erroneous statement of the law, did no harm : 16 Ga., 600. Deafness as an excuse for a juror ; witness recalled to explain evidence; instruction by the Court as to the form of verdict; not attempting to escape as equivocal evidence of innocence: 20 Ga., 156; but see 56 Ga., 114. Prisoner may rebut the presumption of guilt arising from the attempt to escape, by showing it was from fear of personal injury : 25 Ga., 527. Triors : 15 Ga., 498. The Court may change its judgment after it is announced, but before it is placed on the minutes of the Court : 28 Ga., 235. As to waivers by the prisoner, discretion of the Court as to punishment : 28 Ga., 576. Penal laws construed strictly : 33 Ga., 229; 34/457-8. Pre- sumption of innocence of defendant complicated with others from the fact of having put the officer in the way of pursuing, and as to the repentance of one agreeing to participate : 30 Ga., 757. When no error in the Judge refusing to charge as requested, as to a prosecution being unfounded or malicious: 30 Ga., 137. The description in the indictment characterizes the offense: 31 Ga., 206. A verdict right except improper continuance and illegal evidence admitted, not permitted to stand : 40 Ga., 529. When defendant cannot give in evidence his sayings as to when and how injury inflicted several days afterwards: 45 Ga., 225.

General Note on Criminal Practice. —Autrefois acquit or convict : 1 Bish. Cr. Proc, #318; notes to Code, #5000; 1 Whart. Cr. Law, #573; 1 Arch. Cr. Pr. and PL,

338 ; 1 Hawley's Cr. Rep., 507-543 ; 2/64, 427, 430, 618, 621. Evidence : treated in various sections from 3755 to 3876. Pug-itive from justice : 1 Bish. Cr. Proc, #219; notes to #54 of Code. Grand jury : 1 Whart. Cr. Law, of #452 ; note following #3924 Code ;

1 Arch. Cr. Pr. and PL, 504. Presence of defendant at trial : 28 Am. D., 629-631, full note; 3 Whart. Crim. Law, 2992; 1 Bish. Cr. Proc, #265.

FOURTEENTH DIVISION.

OF CONTEMPTS OF COURT, AND ATTEMPTS TO COMMIT CRIME.

Section. i Section. 4711. Contempts of Court. 4712. Penalty for I attempts.

§4711. (4614.) (4593.) Power of Courts in punishing contempts. The P246. (5,) fa^.^, 4216 ' power of the several Courts of law and equity in this State to issue at- , tachments and inflict summary punishments for contempts of Court, <~~ shall not extend to any cases except the misbehavior of any person or persons in the presence of the said Courts, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said Courts in their official transactions, and the disobedience or resistance by any officer of said Courts, party, juror, witness or other person or persons, to any lawful writ, process, order, rule, decree or command of the said Courts.

: ; ; Proceedings against a Sheriff for contempt 2 Ga., 220 50/336 6/575 ; 42/83 ; 51/650 ; 57/21; 59/822; 60/331, 244, 410. Officer acting under a new appointment not in contempt of the judgment of a Court ousting him from office under a former appointment: 8 Ga., 230. May purge of contempt of an injunction by sworn denial of notice of it: 19 Ga., 527. Questions of contempt generally for the discretion of the Court offended thereby : 27Ga.,476; 36/346; 39/191 ; 56/98. When this discretion controlled : 55 Ga., 273. Where guardian not subject to contempt for failure to pay over money to a receiver: 33 Ga., 271. When a Judge may enforce in vacation the paying over of a fund to a receiver: 34Ga., 162. Sufficient if the party had notice in any manner: 61

Ga., 164. Courts of equity will enforce their orders by attachments ; remedial proceeding : 36 Ga., 346. Attachment against attorneys: 59 Ga., 523; 58/300, 121. Disobedi- ence to an injunction : 39 Ga., 191 ; 40/356 ; 19/527 ; 36/346 ; 56/98 ; 41/466. When an order of Court requiring the delivery of money on pain of imprisonment did not in- fringe on the constitutional prohibition against imprisonment for debt: 41 Ga., 467 ;

See also 44 Ga., 216 ; 57/407 ; 58/122 ; 59/523. Attachment for violating the restraining order of the Chancellor: 53 Ga., 200 ; 54/257. Only extends to an officer in an official transaction, and to disobedience or resistance by other persons to lawful writ, process, : :

1234 PART IV.—TITLE I.—DIVISION XIV.

Oi contempts uf court, and attempts to commit crime.

etc. : 54 Ga., 649-650. And where a Justice of the Peace not being an officer of the Superior Court, was not liable to be there attached: 54 Ga.. 621. Where rule nisi calling on the Sheriff' to show cause why he should not be attached must be sued out and

served on him before he could be attached for contempt : 57 Ga., 24. Yet this may be

embodied in the rule nisi calling on him to show cause why he does not pay money : 57 Ga., 161; 59/523. When attachment for contempt did not lie against a guardian 58 Ga., 70. When client could enforce rule absolute against an attorney by an attach-

ment or execution : 58 Ga., 121.

Cooley Torts, 422-5; 2 Bishop Crim. Law, §252; 3 Whart. lb., §3426; 2 Hawley's Cr.

; Rep., 184; note to Code, §246, par. 5 9 Wall., 605; 22/157 ; 12 Am. D., 178-186, full

note; Wells on Jurisdiction, §178 et seq. Publications in newspapers : 1 Hawley's Cr. Rep., 358; 16 Am. R., 528. Not discharged from, on habeas corpus: See general note following Code, §1031. By witness in avoiding subpoena: 2 Hawley's Cr. Rep., 182.

Libelor vs. grand jury, not punishable as : 22 Am. R., 158. Not paying alimony where unable: 13 Am. R., 167. Municipal Courts cannot pnnishfor: 21 Am. R., 507, n. Sentence for may be pronounced in absence of party in contempt: 21 Am. R., 650.

Addressing insolent letters to Judge : 26 Am. R., 747, 752, n. Proceedings for, in Court

of law, will not be enjoined : 26 Am. R., 479. Writ of error to review adjudication for, when lies: 26 Am. R., 479; 24/624. Governor cannot pardon for: 13 Am. R., 115.

Disbarring attorneys : 7 Wall., 364.

§4712. (4615.) (4594.) Attempts, how punished. If any person shall

Acts of 1865 attempt to commit an offense prohibited by law, and in such attempt -6, p. 233. shall do any act toward the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented, or intercepted from exe- 4674 4675# ^ ' cuting the same, such person, so offending, shall be indicted for a mis-

^ demeanor, and, on conviction thereof, shall, in cases where no provis- C 18 p 22° ''ion is otherwise made in the Code, or by law, for the punishment of such attempt, be punished as follows

Where the jury could find for an attempt to commit an offense without any special

count : 10 Ga., 422. Where on an indictment for a rape, assault with intent or attempt

to commit a rape was found : 14 Ga., 55. In what county the attempt to commit a crime was complete: 26 Ga., 494. Where the jury could not find guilty of an attempt

to make an assault: 53 Ga., 205. Section referred to and construed : 58 Ga., 200-202; 53/126. 1. If the intended offense would have been capital. If the offense attempted to be committed be such as is punishable by law with death, the person convicted of such attempt shall be punished by imprisonment and labor in the penitentiary for any time not less than two years nor more than seven years. 2. If penitentiary four years. If the offense attempted to be committed be punishable by law by imprisonment and labor in the penitentiary for a time not less than four years, the person convicted of such attempt shall be punished by imprisonment and labor in the penitentiary for any time not less than one }^ear nor more than four years. If the offense attempted to be committed be punishable by law by imprisonment and labor in the penitentiary for a period of time not less than three years, the person convicted of such attempt shall be punished by imprisonment and labor in the penitentiary for the term of not less than one nor more than two years. 3. If penitentiary two years. If the offense attempted to be committed be such as is punishable by law by imprisonment and labor in the

. penitentiary for a time not less than two years, the person convicted of such attempt shall be imprisoned in the penitentiary at labor for the term of one year.

This paragraph cited and construed : 58 Ga., 203; see Acts of 1877, p. 22.

4. If penitentiary one year. If the offense attempted to be committed be punishable by law by imprisonment and labor in the penitentiary for a time not less than one year, the person convicted of such attempt shall be punished as prescribed in section 4310 of this Code. An attempt to commit a felony not falling under any of the foregoing provisions, shall be punishable by imprisonment and labor in the penitentiary for a period of time not less than one year. : —

PART IV.—TITLE I.—DIVISION XV. 1235

Article 1. —Proceedings prior to arrest.

5. Attempts to commit misdemeanors. If the offense attempted to be committed be punished as a misdemeanor, under section 4310 of this Code, or as a misdemeanor under any other section of this Code, the person convicted of such attempt shall be punished as provided in section 4310 of this Code, if the offense had been committed and would have been punishable under section 4310 aforesaid, and under other sections of this Code, as the offense, had it been committed, would have been punished.

Cited : 53 G-a., 126. What the warrant for an arrest and for commitment and bench warrant must state and recite: 9 Ga., 73; 17/194. Section cited where arrest when no affidavit was made : 51 Ga.. 641, Affidavit no basis for a criminal proceeding where neither attested by an officer authorized to administer oaths, nor purporting to be sworn to in open Court : 55 Ga., 380. Perjury maybe assigned on an affidavit charging an offense : 58 Ga., 340.

Attempts: 2 Whart. Cr. Law. £2686; 2Bish. lb., §657; 2 Bish. Cr. Proa, §71; 1

Arch. Cr. Pr. and PI., 897 ; 10 Am. R., 22.

FIFTEENTH DIVISION.

PROCEEDINGS IN PRELIMINARY COURTS.

Article 1. Proceedings prior to Arrest. Article 2. — Of Arrest and its Consequences. Article 3. Of Courts of Inquiry, Commitment and Bail. Article 4. Of Warrants for Good Behavior, etc. Article 5. Of Search Warrants. Article 6.— Of Proceedings in Cases of Bastardy.

ARTICLE I. PROCEEDINGS PRIOR TO ARREST.

Section. Section. 4713. Who may issue warrants. 4718. Of selection of Judge to try cause. 4714. Contents of affidavit and warrant. 4719. Officers may require bond.* 4715. Form of affidavit. 4720. Warrants may issue in any county. 4716. Form of warrant. 4721. Officer may follow accused. 4717. Special warrant prohibited.

§4713. (46 16.) (4595.) Who may issue warrants. Any Judge of a Su- perior or City Court, any Judge of the County Court, or Justice of the Peace, or any corporation officer clothed by law with the powers of a Justice of the Peace, may issue his warrant for the arrest of any offender against the penal laws of this State, based either on his own knowledge or the information of others, given to him under oath.

§4714. (4617.) Contents of affidavit and warrant. [Any affidavit made, (&) Acts of 5" 6 p- or warrant issued for the arrest of any offender against the penal laws i^ ' of this State, shall state, as nearly as practicable, the following facts, to-wit : The offense, the county in which the same was committed, and the time when committed ; and when the offense charged is larceny, the ownership of the property alleged to have been stolen, or the person from whose possession it was taken, shall, as far as practicable, be stated in the affidavit and warrant.] (a.) §4715. (4618.) (4596.) Form of affidavit. [An affidavit substantially ^ Acts of 5 " 6 p- complying with the following form shall in all cases be deemed sufn-^ ' cient ' : —

1236 PART IV.—TITLE I.—DIVISION XV.

Article 1. —Proceedings prior to arrest.

Georgia, County : Personally came A B., who, on oath, saith that, to the best of his knowledge and belief, C. D. did, on the day of in , the year of ,

in the county aforesaid, commit the offense of ; and this deponent makes this affidavit that a warrant may issue for his arrest. A. B. Sworn to and subscribed before this the -— day of 18 me — ,

, J. P.] (a.) Section referred to and construed: 62 Ga., 583.

§4716. (4619.) (4597.) Form of warrant. [The following form may

(a) Acts of be used for a warrant, a substantial compliance with which shall be 3865-6, p. deemed sufficient

Georgia, County :

To any Sheriff, deputy Sheriff, coroner, constable, or marshal in this State— greeting. A. B. makes oath before that on the day of in me , the year

, in the county aforesaid, C. D. did commit the offense of . You are therefore commanded to arrest the body of the said C. D., and bring him before me, or some other judicial officer of this State, to be dealt with as the law directs. You will also levy on a sufficiency of the property of said C. D. to pay the costs, in the event of his final conviction.

Herein fail not. , J. P.] (a.) Section referred to and construed: 62 Ga., 583.

§4717. (4620.) (4598.) Special warrant. No judicial officer, except a Judge of the Superior Court, shall issue a special warrant returnable only before himself; nor shall any Judge issue such warrant out of his own judicial circuit. In such cases, the warrant, though special, shall be treated as a general warrant. See 9 Ga., 73. §4718. (4621.) (4599.) Of selection of Judge to try the cause. The arresting officer shall carry the prisoner before the most convenient and ac- cessible judicial officer authorized to hear the cause, unless the prisoner shall desire otherwise, in which case, if there be no suspicion of improper motive, the arresting officer shall carry him before some other judicial officer. But in no case has a prisoner the right to select the Justice before whom he shall be tried. §4719. (4622.) (4600.) Officer may require bond to prosecute. The officer issuing a warrant upon any sufficient grounds of suspicion, may require the applicant first to file a bond with sufficient sureties to prosecute the suit in the event of a committal. §4720. (4623.) (4601.) Backing warrants in another county. A warrant

(a) Acts of may be issued in any county, though the crime was committed in an- 1865-6, p. &. other ; and a warrant once issued, may be executed in any county, [without being backed or indorsed by any judicial officer, upon its being carried from one county to another.] (a.) §4721. (4624.) (4607.) Sheriff, etc., may make arrests in any county. [It

(a) Acts of shall be lawful for any Sheriff, constable, or other arresting officer of 1865-6, p. 38. this State, to arrest any person charged with crime under a warrant <*L*-*C* AiCV^* issued by any judicial officer of the State, in any county of the State,

/ without regard to the residence of said arresting officer ; and it is hereby made the dutjr of such arresting officer to carry said accused, with the J warrant under which he was arrested, to the county in which the offense is alleged to have been committed, for examination before any judicial officer of said county.] (a.) General Note on Article I. —Warrants: 1 Arch. Cr. Pr. and PL, 102-113; 3 Whart. Cr. Law, £2925; 3 Cr., 448. ;

PART IV.—TITLE L—DIVISION XV. 1237

Article 2. —Of arrest and its consequences.

ARTICLE II.

OF ARREST AND ITS CONSEQUENCES.

Section. Section. 4722. Arrest, posse to assist. 472G. Of officer arresting. 4723. Arrest, without warrant. 47-'7. Bench warrant. 4724. Arrest, by private person. 4728. What constitutes an arrest. 4725. Duty oi person arresting. 4729. Breaking open doors.

§4722. (4625.) (4602.) Arrest and posse. Every officer is bound to execute the penal warrants placed in his hands, and to that end he may summon to his assistance, either in writing or verbally, any of the citizens of the neighborhood or county. As the posse of such officer, their acts shall be subject to the same protection and consequences as official acts. §4723. (4626.) (4603.) Arrest without warrant. An arrest may be made for a crime, by an officer, either under a warrant or without a warrant, if the offense is committed in his presence, or the offender is endeavoring to escape, or for other cause there is likely to be a failure of justice for want of an officer to issue a warrant.

An officer is not necessarily a trespasser in making an arrest on probable ground of suspicion and without warrant: 30 Ga., 426. This provision of the Code but an affirm- ance of the common law : 46 Ga.. 80. Section referred to: 51 Ga., 640-641. A police officer may arrest without warrant, but there must be an offense committed to justify it : 64 Ga., 127. When city not liable for illegal arrest by a police officer: 54 Ga., 468 62/290. §4724. (4627.) (4604.) By private person. A private person may arrest an offender, if the offense is committed in his presence or within his immediate knowledge ; and if the offense is a felony, and the offender is escaping, or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion.

When a private person may arrest : 12 Ga., 293. Where the false imprisonment was complete, a fugitive from justice: 63 Ga., 513-514.

§4725. (4628.) (4605.) Duty of person arresting. In every case of an arrest without warrant, the person arresting shall, without delay, convey the offender before the most convenient officer authorized to receive an affidavit and issue a warrant. And no such imprisonment shall be legal beyond a reasonable time allowed for this purpose.

Should be no unreasonable delay on the part of the person arresting in carrying the accused before an officer : 46 Ga., 80-86. Cruel treatment of the captor to the prisoner :

56 Ga., 61. Section cited : 63 Ga., 514.

§4726. (4629.) (4606.) Of officer arresting. Every officer arresting under a warrant shall exercise reasonable diligence in bringing the person arrested before the person authorized to examine, commit, or receive bail. §4727. (4630.) (4608.) Bench warrant. A bench warrant is one issued by a Judge for the arrest of one accused of a crime by a grand jury. Every officer is bound to execute it within his bailiwick, and every person so arrested must be committed to jail until bail is tendered; in which case, any judicial officer, or the Sheriff of the county where the accusation was found, may receive the bail, and, to this end, may fix the amount of the bond and approve the sureties.

Sufficient if it recites the fact of the indictment and describes the offense generally: 9 Ga., 73. Securities on bond before magistrate, discharged by subsequent arrest under a bench warrant: 51 Ga., 158. When Sheriff had no power to stipulate with the sureties to a bond to add other sureties, and his failure to so do did not relieve the other sureties: 56 Ga., 440-441.

§4728. (4631.) (4609.) What constitutes an arrest. An actual touching with the hand is not essential to constitute a valid arrest. If the defendant voluntarily submits to be considered under arrest, or yields on .

1238 PART IV.—TITLE I.—DIVISION XV.

Article 3. —Of courts of inquiry.

condition of being allowed his freedom of locomotion under the discretion of the officer, the arrest is complete. What constitutes an arrest: 20 Ga., 369. §4729. (4632.) (4610.) Breaking open doors. In order to arrest under a warrant charging a crime, the officer may break open the door of any house where the offender is concealed.

General Note. —Where it was murder to kill an officer: 17 Ga., 194. An indict- for ment need not state official character of the party slain : 18 Ga., 383. Policeman un-

der city ordinance under the protection of the law in making an arrest : 30 Ga., 426.

General Note on Article II. —3 Whart. Grim. Law, $2922 et seq. ; 1 Bish. Cr. Proc,

§155 ; 1 Arch. Cr. Pr. and PL, 80. What constitutes a- rest : 19 Am. D., 485, n. Arrest without warrant: 5 Am. R., 272; 19/672, n ; 22/669; of insane person not legal without warrant, unless he is dangerous: 11 Am. R., 323.

ARTICLE III.

OF COURTS OF INQUIRY.

Section. Section. 4730. Who may hold. 4740. Prisoner sent to adjoining county. 4731 Other associates. 4741. Payment of jail lees. 4782. Time granted parties. 4742. Bail. 4733. Evidence. 4743. Waiving trial. 4734. Abstract of evidence. 4"44. May be committed for different offense. 4735. Witnesses may be recognized. 4745. Disposition of papers. 4736. Binding over witnesses. 4746. Bail surrendering principal. 4737. Names of witnesses on warrant. 4747. Bail allowed, howdten. 4738. Rule of decision. 4748. Informality no ground of discharge. 4739. Commitment.

§4730. (4633.) (46 LI.) Who may hold Court of inquiry. Any Judge of the Superior or,County Court, or Justice of the Peace, or city or town officer, who may be ex officio Justice of the Peace, may hold a Court of inquiry to examine into any accusation against any person legally arrested and brought before him. The time and place of such inquiry shall be determined by him. Section cited: 45 Ga., 174-5.

§4731. (4634.) (4612.) Other associates. The officer before whom the accused is brought may associate with him, in the investigation, one

or more Justices ; in which event, a majority shall decide all questions. If there are only two presiding, the original Justice shall determine all the questions where the Court is not agreed. §4732. (4635.) (4613.) Time granted parties. A reasonable time shall Acts of 1865 be given to the defendant or prosecutor for the preparation of his case, -6, 236. p. anc] j n n0 e vent shall the defendant be forced to trial without the aid of counsel, if there be a reasonable probability of his securing counsel without too great delay. [And where the cause is postponed to a future day at the instance of either party, or by the Court, it shall not be necessary to commit the defendant to jail pending the hearing; but he shall have the right to give bail for appearance at the hearing before said Court of inquiry: Provided, the offense is bailable under the au-„ thority of said Court.] (a.)

Section cited : 45 Ga., 174-5. §4733. (4636.) (4614.) Evidence. The Court shall hear all legal evi*

(a) Acts of dence submitted by either party, and shall always permit the defend- 5" 6 ' p- ant to his statement of the transaction (not under oath), if ^[j make own he desires to do so. The weight to be given to such statement shall be entirely in the discretion and sound judgment of the Court. Whenever such statement is made, it shall be the duty of the Court to reduce it to writing, and return it with the other papers to the proper Court, in the event of a commitment. .

PART IV.—TITLE I.—DIVISION XV. 1239

Article 3.— Of courts of inquiry.

."When no ground for anew trial that the Judge admitted in evidence hefore the jury

the phonographer's written report of the prisoner's statement before the magistrate : 45 Ga., 58-73. Magistrate has no right to examine prisoner with the purpose of obtain-

ing contradictory statements : 54 Ga., 156-7. Official minutes of witness' testimony

before the committing magistrate identified by him and sworn to : 59 Ga.. 738. As to magistrate testifying to the prisoner's statement, such statements of the prisoner-

should be in writing under this section : G5Ga., 200-201. §4734. (4637.) (4615.) Abstract of evidence. If the charge be of a felony the Court shall cause an abstract of all the evidence to be made and returned as above §4735. (4638. (4616.) Binding over witnesses. In the event of a commitment, the Court, in its discretion, may require the witness in behalf of the State or others to give suitable bond for their appearance at Court, with or without sureties, as the circumstances seem to demand. §4736. (4639.) (4617.) Attendance of witnesses. A Court of inquiry shall have power to compel the attendance of all witnesses resident within the county after notice of twenty-four hours, and to this end may order their arrest. §4737. Name of witnesses to be indorsed on warrant. [Whenever any Jus- (a) Acts of 1873 p - 8L tive of the Peace or other judicial officer sitting as a Court of inquiry » shall bind over any defendant to appear at the Superior Court to answer any charge, it shall be the duty of such officer sitting as a Court of inquiry, then and there to indorse on the warrants the names of each witness for the State.] (a.) §4738. (4640.) (4618.) Rule of decision. The duty of the Court of inquiry is simply to determine whether there is sufficient reason to suspect the guilt of the accused, to require him to appear and answer before the Court competent to try him, and, whenever such probable cause exists, it is the duty of the Court to commit.* §4739. (4641.) (4619.) Commitment. The following form, or one in substance the same, shall be deemed a sufficient commitment: Georgia, County. offense of and A. B. having been arrested on a warrant for the , brought before me, after hearing evidence, it is ordered that he be com-

mitted for trial for the offense of . And the jailer of said county, (or any other county, if necessary,) is required to receive and safely

r keep him until discharged by due process of law . Witness my hand

18 , P. [seal.] and seal, this day of , — J. §4740. (4642.) County sending prisoner to jail in adjoining county liable (b) Acts of

1865 6 ' 40, - p for fees. [When there is no secure jail in any county in this State, any person committing an offense in said county, shall be sent to jail §351, (9) in the nearest county having a secure jail; the county where the offense is committed shall be primarily liable for jail fees and costs, and the county so primarily liable shall pay said jail fees and costs monthly in advance, and for the purpose of raising funds to pay the same, the Ordi- nary may levy and collect an additional tax.] (b.). §4741. (4643.) Jailer not bound to receive prisoner, when. [No jailer Actsofl?65 shall be bound to receive a prisoner from another county, until the -6, p. 40. 'jail fees and costs are provided for as set forth in the preceding section.] (b.) §4742. (4644.) (4620.) Bail. If bail is tendered and accepted, no reg-(t>) Acts of of the 0-6, p " ular commitment need be entered, but a simple memorandum Jof fact of bail being taken. A reasonable opportunity shall be allowed the accused to give bail, and even after commitment and imprisonment, the committing Court may order the prisoner brought before him or them to receive bail.

When the condition of a bond has been complied with : 2 Ga., 137. When the lia-

*The 11th section of the Acts of 1811, which gave Justices of the Peace discretion to award costs against accused or prosecutor, repealed. See Acts of 1876, p. 108. 1240 PART IV.—TITLE I.—DIVISION XV.

Article 3.—Of I'oufts of inquiry.

bility of the bail is fixed, and as to surrender of principal by the bail: 2 Ga., 331.

What the recognizance for bail should recite, and when broken : 22 Ga., 417-418. Re- citing the offense substantially need not state its name: 32 Ga., 251. Discharge of sureties by subsequent arrest under a bench warrant: 51 Ga., 158-9.

§4743. (4645.) (4621.) Waiving trial. If the party waives a hearing and tenders bail, a memorandum of these facts shall be entered on the

warrant ; and this may be done by the party charged before arrest, and when done, shall operate as a supersedeas.

Insisting on the trial on Sunday and obtaining it and giving bail, is to waive a legal hearing: 62 G a., 449. §4744. (4646.) (4622.) Committing for different offense. A Court of inquiry may commit for a different offense than that stated in the warrant, if the evidence requires it. §4745. (4647.) (4623.) Disposition of papers. The commitment shall be delivered to the officer in whose charge the prisoner is placed, to be delivered with the prisoner to the jailer, and a memorandum of the fact entered on the warrant. The warrant and all the other papers shall be forwarded to the Clerk of the Superior Court, or other Court having jurisdiction of the crime, to be delivered to the Solicitor or Attorney- General. See rule 40 of Superior Courts. §4746. (4648.) (4624.) Bail surrendering principal. Bail may surren- §4704. der their principal in vacation to the Sheriff, or in open Court, in discharge of themselves from liability, and such privilege shall continue to the day of the term, without liability for costs for a forfeiture of the bond. After forfeiture, and before final judgment, the bail may, at any time, surrender their principal, upon payment of all costs accruing up to that time. The death of the principal at any time before final judgment shall be equivalent to a surrender. After forfeiture, but before final judgment: 17 Ga., 462-4. Death of the principal,

but before judgment, exonerates the securities : 32Ga.,663; 45/10. Where there was a mistake, the judgment of forfeiture set aside after it was entered on the minutes of

Court : 51 Ga., 171. When decision of Court on a motion of the Solicitor-General as to new bail or commitment of defendant, not reviewable by the Supreme Court: 61 Ga., 263. Must pay the costs where the principal was surrendered between the forfeiture and final judgment on scire facias: 62 Ga., 267. §4747. (4649.) (4625.) Bail but once. No person shall give bail more

§4701. than twice before trial for the same offense, after presentment or in- offenses are bailable before of Actsof 1878 dictment found. Capital only a Judge -9, p. 55. the Superior Court, and is, in every case, a matter of sound discretion. All other cases are bailable by the committing Court. Excessive bail shall never be demanded.

Power of the Superior Court as to bail, is discretionary with the Judge, generally :

24 Ga., 391 ; 33/192. Committing Court may empower the Sheriff to imprison offender

until he gives bond : 35 Ga., 180. §4748. (4650.) (4626.) Informality no ground of discharge. No pris-

§§4023, 4025. oner shall be discharged on a writ of habeas corpus because of informality in the commitment, or of the proceedings prior thereto, provided the foregoing provisions of this division have been substantially com-, plied with. See: 9Ga., 73. General Note.—A bond admitting assailant to bail, the one assailed being then alive

not avoided by subsequent death of the one assailed : 22 Ga., 418-425. As to power of

the Justice to award costs : 28 Ga., 462 ; 40/476. Judgment of committing Court, that defendant be committed on failure to give bond, not corrected by certiorari to the Su-

perior Court : 40 Ga., 476.

General Note on Article III. —3 Whart. Cr. Law, #2979 et seq. ; 1 Bish. Cr. Proc,

3225; 1 Arch. Cr. Pr. and PL, 132. Bail : 1 Bish. Cr. Proc, £247 ; 1 Arch. Cr. Pr. and PL, 165; 25 Am. R., 646; 31/13. After mistrial in murder case: 21 Am. R., 393. PART IV.—TITLE L—DIVISION XV. 1241

Article 4.— Of warrants for good behavior, and to keep the peace.

ARTICLE IV. OF WARRANTS FOR GOOD BEHAVIOR, AND TO KEEP THE PEACE.

Section. Section 4749. Bond for pood behavior. 4753. Breach of the bond. 4750. Suit for breach. 4754. When revoked. 4751. Extended from terra to term. 4755. Extending the bond. 4752. Bond to keep the peace. 4756. Wife may require it.

§4749. (4651.) (4627.) Bond for good behavior. Any of the judicial officers before named may, upon information of others under oath, or on his own motion, issue his warrant against any person in the county, whose conduct is such as to justify the belief that the safety of anyone or more of the citizens of the county, or the peace or the property of the same, is in danger of being injured or disturbed thereby ; and upon the return of such warrant the Court, in its discretion, may require from such person a bond with sureties for his good behavior, until the next term of the Superior Court of the county. §4750. (4652.) (4628.) Suit pr breach. For a violation of such bond, suit may be brought at the instance of any citizen of the county, and one-half of the recovery shall be paid to the informer, and the other half be added to the educational fund of the county. §4751. (4653.) (4629.) Extended from term to term. Such bond for good behavior may be extended from term to term, by the Superior Court, in its discretion, the sureties, like other bail, having the privilege of surrendering their principal. If not extended, it expires with the session of such Court. §4752. (4654.) (4630.) Bond to keep the peace. Upon the information Act of 1850, J p ' of any person under oath, that he is in fear of bodily harm to himself ' or his family from another, or of violent injury to his property, any of the judicial officers before named, may issue his warrant against such other person, requiring his arrest ; and if, upon the return thereof, the Court is satisfied, upon hearing the evidence of both parties, that probable cause for such fear exists, he may require the accused to give bond, with good security, to keep the peace as against the person, family and property of the affiant ; and, on failure to give the bond, shall commit him to jail. Judse of the Superior Court can discharge defendant if the evidence insufficient to require the giving of a bond, and this too without the payment of the costs: 27 Ga., 483.

§4753. (4655.) (4631 ) Breach of the bond. Actual violence, or a menace of violence, or any other act intended and calculated to excite alarm, or to provoke a breach of the peace, shall be a violation of such bond ; and for every such act, the party at whose instance it shall be required shall have a right of action. §4754. (4656.) (4632.) When provoked. If the party requiring the bond, by his own conduct, provokes a violation by the other, no recovery shall be had. §4755. (4657.) (4633.) Extending the bond. The Superior Court may, at any time, discharge the bond, unless there be a motion to extend it, accompanied by evidence to satisfy the Court of the necessity of such extension. 38 §4756. (4658.) (4634.) Wife may require it. A wife may require a bond ? 54- to keep the peace, or for good behavior, against her husband.

General Note on Article V.—8 Whart. Cr. Law, g2937 ; 1 Bish. Cr. Proc, §g208» 240; 1 Arch. Cr. Pr. and PL, 126. 1242 PART IV.—TITLE I.—DIVISION XV.

Article 6.—Of search warrants. —Article 6.—Of proceedings in cases of bastardy.

ARTICLE V. OF SEARCH WARRANTS.

Section. Section. 4757. When issued. 4760. Forcible taking of goods. 4758. How executed. 4761. Binding over offender. 4759. Goods, if found.

§4757. (4659.) (4635.) When issued. A warrant to search the house or property of another must issue onl}*- upon probable cause, supported by oath, and particularly describing the place to be searched, and the person or thing to be seized.

Action for procuring the issue of, on insufficient evidence : 13 Gra., 260. Where adverse adjudication on a search warrant did not preclude plaintiff in a possessory warrant subsequently sued out: 63 Ga., 332. §4758. (4660.) (4636.) How executed. The officer executing such warrant may break the door of the house or room specified in the warrant. The warrant is his justification. If it was taken without probable cause, the breaking and search is a trespass on the part of the applicant therefor. §4759. (4661.) (4637.) Goods, if found. If the goods are found, the officer shall seize and bring them before the Court, who may hear evidence as to ownership and possession, and grant possesion to the owner from whom the same have been feloniously taken. See: 63 Ga., 332. §4760. (4662.) (4638.) Forcible taking of goods. The forcible taking of goods, if not done with criminal intent, is not probable cause for search warrant. §4761. (4663.) (4639.) Binding over offender. Upon the hearing, the Court may require the person in whose possession the goods are found to give bond for his appearance, to answer either charge for larceny, or receiving stolen goods, as the facts may be. General Note on Article V. —3 Whart. Crim. Law, §2937; 1 Bish. Cr. Proa, §208, 240; 1 Arch. Cr. Pr. and PL, 126.

ARTICLE VI. OF PROCEEDINGS IN CASES OF BASTARDY.

Section. Section. 4762 Proceedings against parents. 4764. Suit on bond. 4763. Commitment of mother. 4765. Deposit of bond.

§4762. (4664.) (4640.) Proceedings against the mother, against the father.

Act of 1793, Any Justice of the Peace, in any county within this State, who, of his c. p. 148. ' own knowledge, or on information to him on oath, made of any free white woman having a bastard child, or being pregnant with one, which it is probable will become chargeable to the county, he may thereupon cause a warrant, under his hand and seal, directed to the Sheriff or any constable of said county where the case may arise, and oblige the offender to be brought before him, to give security to the Ordinary of the county, in the sum of seven hundred and fifty dollars, for the support and education of such child till the age of fourteen years, or to discover on oath, the father of such bastard child; which being done, the said Justice shall issue his warrant, in like manner, to bring before him the person sworn to be the father of such child so born, or to be born, who on refusing to give security for the maintenance and education of such child until it arrives at the age of fourteen years, and also the expense of lying-in with such child or children, boarding, nursing, and maintenance while the mother of Such child is confined by reason thereof; that then it >:

PART IV.—TITLE L—DIVISION XV. 1243

Article 6.— Of proceedings in cases of bastardy. may and shall be lawful for the said Justice to bind over such delin- quent in a sufficient recognizance to be and appear before the next Su- perior or County Court which may be held in said county ; and it shall be the duty of the Attorney or Solicitor-General to prefer a bill of indictment, to be laid before the grand jury, to answer to such complaint as may be then and there alleged against him touching the premises.

Indictment for should charge that defendant is the father of the hastard child, which' refusing to give the bond, with makes out the offense: 3 Ga., 534; 5/401 ; 29/424 58/170, 197. Which bond on the trial, after the close of the evidence, was refused to be taken : 23 Ga., 230. Evidence as to : 23 Ga., 297 ; 15/160. A colored woman may swear a bastard child to its reputed father under such proceedings as a white one could have used : 40 Ga., 220-221. Copy of lost affidavit and bond established by the magistrate, as evidence to be used in the Superior Court : 58 Ga., 170. When Sheriff could not take bond for appearance of defendant at Court: 58 Ga., 197.

§4763. (4665.) (4641.) Women to be committed who fail to comply with Act of itw, p * 148 ' this Act. In case the woman, who shall have been delivered, or is likely ' to be delivered, when brought before a Justice, refuses to discover, on oath, the father of such child so born, or to be born, or give such security to appear before the next Superior or County Court, to be held in and for the said county, and to give such security as may be then and there required of her by the said Court for the maintenance and educa- Act of 1802,

c 149 - tion, as aforesaid, of the said child, that then it shall be lawful for the - p- Justice to commit her, in manner and form aforesaid, as pointed out by this Act; and in case of her refusing to make known to the said Court the father of such child, or give security as aforesaid, that then it may and shall be lawful for the said Court to imprison her not exceeding three months: Provided, nevertheless, that nothing herein con- (a) Actsof tained shall be so construed as to bar either party, wr hen charged as i«66, p. 152. aforesaid, from offering [an exculpatory affidavit or testimony, either or both] (a) to the magistrate in the first instance of the charge ex- hibited, who may exercise his discretionary power, after due inquiry being had, either to discharge or recognize both or either of the parties charged as aforesaid, in conformity to the intent and meaning of this Act, anything to the contrary notwithstanding. §4764. (4666.) (4642.) Bonds for the maintenance of bastard children. It Act of 1809,

c ' ' 149 ' shall be the duty of the Ordinaries in the several counties of this State, p when any child has or shall become chargeable to the county where a bond is taken, as above recited, for the maintenance of a bastard child, to institute an action on all bonds so taken ; and it shall be lawful for them to recover the full amount of said bond or bonds, which judgment or judgments shall remain open, and be subject to be appropriated by the Courts aforesaid, from time to time, as the situation and exigencies of the said bastard child may require.

A bond in a bastardy proceeding is for the protection of the county, and there is no breach of it until the child chargeable to the county ; and as to the evidence of this: 16 Ga., 89. Where there were two bastard children and a refusal to give bond created the offense : 58 Ga., 170.

§4765. (4667) (4643.) How and where bonds are to be returned. It shall Act of iso9,

c,p - 150 - be the duty of the Justice or Justices of the Peace, before whom. the bond shall be taken, to return such bond to the Ordinary of the county in which such female shall reside, within thirty days after the same is taken. General Note. —Liability of the father to maintain, etc., is good consideration for a settlement made in trust for the benefit of the mother: 15 Ga., 176. Sufficient indictment for : 5 Ga., 491 ; 28/19. As to making bastards legitimate by action of the Legis- lature : 8 Ga., 2'0. Forbearance of the mother to prosecute the reputed father consideration for note to pay money, etc., given by the father to prevent her from prosecuting

32 Ga., 699 ; 33/512. Where there may be a new warrant for bastardy, notwithstanding a judgment before the County Court declaring the defendant not the father of the child : 40 Ga., 476-8. As to illegitimates inheriting: 41 Ga., 574. Adulterine bastardy :

15 Ga., 160; 12/158 ; 32/316. Bond given to appear before a Justice of the Peace, in a 1244 PART IV—TITLE II.—CHAPTER I.

The penitentiary.

bastardy proceeding, at aiuture day is valid: 45 Ga., 173. When the administrator of deceased reputed father of a bastard not compelled to c >ntribute to his support out. of

the estate : 47 G-a., 445. What sufficient proof of venue to sustain a verdict of guilty on an indictment for failure to give bond: McCombs vs. State, Pamphlt., February term, 1881, p. 8.

General Note on Article VI. —1 Arch. Cr. Pr. and PL, 960; 2 Whart. Cr. Law,

§2668 ; 1 Hawley's Cr. Rep., 67, 70, 71 ; 2/177, 178, 606; 2 C. L. J., 163.

TITLE II.

OF THE PENITENTIARY *

CHAPTER I.

THE PENITENTIARY, f

Section. Section. 4706. Officers appointed by Governor. 4790. Morals. 4767. Officers oppointed by principal keeper. 4791. By-laws. 4768. Salaries. 4792. A counts of the State. 4769. Prisoners' clothes. 4793. Conveyance of convicts. 47 ',0. Description of prisoners. 4794. General supervision of principal keeper. 4771. Search of convicts. 4795. Confinement on Sabbath. 4772. Law to be read to convicts. 4796. Book-keeper, duties. 4773. Clothing of convicts. 4797. Drafts and salaries. 4774. Clothing on discharge. 4798. Contingencies. 4775. Labor of convicts. 4799. Suits, by whom brought. 4776. Hours of labor. 4800. Assistant-keeper. 4777. Garden cultivated. 4801. Bonds. 4778. Cleanliness observed. 4802. Oath 4779. Hospital. 4803. Marked price of goods. 4480. Punishment by officers. 4804. Successors. 4781. Letters to be examined. 4b'05. Officers exempt. 4782. Visitors, permission to. 4806. Loaning materials, etc. 4783. Spirituous liquors. 4607. Commissioners. 4784. Lights. 4808. Amount of materials. 4785. Cells. 4809. Physician. 4786. Inspector's duty. 4810. Chaplain 4787. United States convicts. 4811. Bible, etc. 4788. Bosses. 48.12 Costs on eseapes. 4789. Duty of principal keeper. 4813. Legislative committee.

§4766. (4668.) (4644.) Officers appointed by the Governor. The officers for the management of the penitentiary shall be one inspector, one principal keeper, a book-keeper, a physician, and a chaplain, all of whom shall be appointed for one year by the Governor, who may remove at his pleasure and fill the vacancies. §4767. (4669.) (4645.) Officers appointed by the principal keeper. There shall be one assistant keeper, and as many overseers, not exceeding four, as the principal keeper may deem necessary, all of whom shall be appointed by the principal keeper for one year, but removable at his pleasure, and the vacancies filled by him. §4768. (4670.) (4646. ) Salaries. For the salaries to be paid to the u several officers of the penitentiary, see Salaries." §4769. (4671.) (4647.) Prisoners 7 clothes. The principal keeper shall cause the clothes of each prisoner, when received, to be cleansed and

carefully kept, to be returned to him on his discharge ; or at the request of the prisoner, he may sell them and deposit the proceeds with the clerk, to be paid to the prisoner on his discharge, or, in case of his death before that time, to his legal representatives. §4770. (4672.) (4648.) Description of prisoner. The principal keeper, on the reception of each convict, shall enter, in a book kept for that

*At present the convicts are farmed out, and the officers, except principal keeper, discharged, and he performs duty of inspector, under Acts of 1871-2, p. 24. tSee Cobb's Digest, pp. 867, 885. PART IV.—TITLE IL—CHAPTER II. 1245

The penitentiary. purpose, an accurate description of such convict, giving his name, age, Acts of 1855 height, color of eyes and hair, complexion, place of nativity, time of" '*'*'- conviction, county where convicted, nature of crime, and period of confinement. §4771. (4673.) (4649.) Search of convicts. He shall also cause such convict to be searched and deprived of any article by which an escape might be effected, and also of all moneys in his possession, to be returned on his discharge, or to his legal representatives in case of his death. §4772. (4674.) (4650.) Laws read to convicts. He shall also read to such convicts such parts of the laws of this State as impose penalties for escape, and the rules relating to the conduct of prisoners. §4773. (4675.) (4651.) Clothing to be furnished. The following clothing shall be annually furnished to prisoners, viz : One jacket, one vest, and one pair of trowsers of kerseys, two pair of shoes, two pair of coarse yarn socks, four shirts, and two pair of trowsers of cotton cloth, with one jacket of the same; the material of the jackets and trowsers to be parti-colored. An additional suit of clothes shall be given to convicts laboring as blacksmiths; also, to each convict a cheap mattress, and as many blankets as are necessary. §4774. (4676.) (4652.) Clothing on discharge. When discharged, each prisoner shall receive a suit of clothes not exceeding ten dollars in value, and money not exceeding the same amount; the principal keeper to discriminate in both according to the conduct of the prisoner during his confinement. §4775. (4677.) (4653.) Labor. Except on Sunday, and when confined in their cells, the prisoners shall be kept at hard labor as far as may be consistent with their age, health and ability, and they shall be so ar- ranged at labor as to be under the constant supervision of the assistant, or one of the overseers, as far as practicable; and no intercourse between convicts shall be allowed, except such as is necessary for the work on which they are engaged. §4776. (4678.) (4654.) Hours of labor. The hours of labor shall be regulated by the length of the day, allowing not more than forty minutes for meals. §4777. (4679.) (4655.) Garden. A garden shall be attached to the penitentiary and worked by the convicts, the vegetables to be for their use. §4778. (4680.) (4656.) Cleanliness. The walls of the cells and other apartments of the prison buildings shall be washed with lime at least once a year; the floors shall be kept neat and clean, and the building fumigated and purified with chloride of lime as often as the physician shall deem necessary. §4779. (4681.) (4657.) Hospital. A hospital shall be provided for the sick, and a convict seriously ill at the expiration of his term, shall have the privilege of remaining until his recovery. §4780. (4682.) (4658.) Punishment by officers. For the violation of rules or by-laws, the prisoner shall be punished at the discretion of the principal keeper, the concurring assent of the inspector being necessary for the infliction of corporal punishment. §4781. (4683.) (4659.) Letters, etc. All letters or other things to or from the convicts shall pass through the hands of the principal keeper, and may be inspected and withheld by him in his discretion. §4782. (4684.; (4660.) Visitors. Visitors must have the permission of the principal keeper, and must be attended while in the penitentiary by a keeper or guard. A wife of a convict may be allowed to visit him under such rules as the principal keeper may adopt. 1246 PART IV.—TITLE II.—CHAPTER I.

The penitentiary.

§4783. (4685.) (4661.) Spirituous liquors. Spirituous liquors shall be allowed to a convict only by prescription of the physician. §4784. (4686.) (4662.) Lights. No light shall be allowed ih cells after they are locked for the night. §4785. (4687.) (4663.) Cells. Prisoners shall be kept in separate cells, and prisoners of different sexes shall at all times be kept separate and apart. The cells shall be numbered and divided into wards, over each of which shall be an overseer. The overseer shall search the cell and prisoner every night to prevent escape. §4786. (4688.) (4664.) Inspector's duty. The inspector shall purchase all materials which shall be needed by the princip il keeper for the use of the penitentiary, and when delivered, shall take his receipt for the same. At stated times he shall advertise in two of the gazettes of the capital for sealed proposals to furnish wood, stock and coal. He shall purchase provisions and stores for the prisoners and guard, when required in writing by the principal keeper, and at no other time. With the assistance of the principal keeper, he shall price all articles made in the penitentiary. He shall make an annual return to the Governor on the first day of October of each year, showing all his acts connected with his office. §4787. (4689.) (4665.) United States convicts. The inspector shall have power to regulate the terms on which convicts sentenced by the Courts of the United States for the circuit and district of Georgia shall be admitted in the penitentiary. §4788. (4690.) (4666.) Bosses. The inspector may employ suitable persons to give necessary instructions in such branches of work as require such skill and knowledge no convict possesses. §4789. (4691.) (4667.) Principal keeper's duty. The principal keeper shall deliver all manufactured articles to the book-keeper, taking du- plicate receipts therefor, specifying the prices assessed by the inspector. He shall also make an annual return to the Governor on the first day of October, showing the amount of materials, etc., received, and of manufactured articles delivered to the book-keeper, and also the amount of materials and unfinished work on hand. §4790. (4692.) (4668.) Morals. He shall carefully note the moral conduct of the prisoners, and furnish them with such moral and religious books as he thinks proper. §4791. (4693.) (4669.) By-laws. Together with the inspector, the principal keeper may make all necessary by-laws and regulations for the successful working and government of the institution. §4792. (4694.) (4670.) Accounts of the State. The order of the Gov- ernor shall be sufficient voucher for any article, work, or labor needed by the State, and the book-keeper shall keep a regular account of the same. §4793. (4695.) (4671.) Conveyance of convicts. The principal keeper shall make all necessary arrangements for the conveyance of convicts to the penitentiary, and may draw on the book-keeper for the funds necessary to defray all such expenses. §4794. (4696.) (4672.) General supervision of principal keeper. The principal keeper shall have a general superintending power over the institution, and shall be responsible for the conduct of all officers under his command. He may enlist his own guard, not exceeding three officers, with as many men as necessary, and at such wages as may be agreed on, and may dismiss them again at his pleasure. §4795. (4697.) (4673.) Confinement on Sabbath. The principal keeper may exercise his discretion as to the time the convicts shall be confined on the Sabbath day. PART IV.—TITLE II.—CHAPTER T. 1247

The penitentiary.

§4796. (4698.) (4674.) Book-keeper's duty. The book-keeper shall sell all manufactured articles at the prices assessed as aforesaid, and collect all debts due to the institution, and shall make a quarterly return to the Governor, showing the exact condition of his department. §4797. (4699.) (4675.) Drafts. The debts contracted by the inspector, as aforesaid, shall be paid upon the drafts of the principal keeper or the book-keeper. The salaries of the several officers, overseers, and guard shall be paid quarterly by the book-keeper, in accordance with the pay- roll made out and certified by the principal keeper. §4798. (4700.) (4676.) Contingencies. The book-keeper shall also pay incidental and contingent expenses of the institution upon the presentation of the accounts, audited and certified by the principal keeper. §4799. (4701.) (4677.) Suits. The book-keeper is authorized to commence suit in his own name, officially, for any debt or cause of action accruing to the penitentiary. §4800. (4702.) (4678.) Assistant keeper and overseer. The assistant keeper and overseers shall alternately remain within the penitentiary during the night, to superintend the guard in such manner as the principal keeper shall direct. During the day they shall remain in their respective departments, superintend the labor of the convicts, and discharge all such duties required of them by the principal keeper as shall tend to the safe keeping of the prisoners, the preservation of the buildings and other property of the institution, and the successful operation of the same. §4801. (4703.) (4679.) Bonds. The inspector, principal a*nd assistant keeper and book-keeper, before they enter upon the discharge of .their respective duties, shall give bond and good security to the Governor and his successors, in such sums as may be designated by him for the faithful performance of their respective duties. §4802. (4704.) (4680.) Oath. The said officers shall also take and

subscribe the following oath: "I, , do solemnly swear that I will diligently execute all the duties lawfully required of me, as an officer of the penitentiary, and will carry into execution the laws and regulations for the government of the same, to the best of my knowledge and ability; and I will, on no occasion, ill-treat or abuse any prisoner under my care, beyond the punishment accorded bylaw, or the rules and regulations of the penitentiary. So help me God." §4803. (4705.) (4681.) Reducing marked prices. The principal keeper and inspector may at any time reduce the marked price of any article offered for sale, if satisfied from any cause the mark is above its market value, and notify the book-keeper of such change. §4804. (4706.) (4682.) Successors. The principal keeper and book- keeper shall deliver to their successors all the property of the institution of every kind in their charge, taking receipts therefor. §4805. (4707.) (4683.) Exemption of officers. The officers of the penitentiary shall be exempt from militia duty in time of peace, and from jury, patrol, road and corporation duty at all times.

President of a company of lessees of penitentiary convicts is notan officer of the penitentiary under terms of this section : 61 Ga., 44. §4806. (4708.) (4684.) Loaning or selling materials. No officer of the penitentiary shall sell or loan any of the tools, materials or products of the garden. The principal keeper may sell old and useless materials, accounting for the same to the book-keeper. §4807. (4709.) (4685.) Annual appraisement. The Governor shall appoint three commissioners annually, who shall take an inventory of the stock of the penitentiary, with an appraisement of its present value. §4808. (4710.) (4686.) Amount of raw material. The assistant keeper shall keep a set of books on the system of double entry, in which shall 79 1248 PART IV.—TITLE III.—CHAPTER I.

Convicts.

be kept a full and correct account of all purchases made, a proper record of all raw material consumed in the various workshops, as well as of all manufactured articles, cash and job work turned over to the book-keeper for sale. He shall also take charge of the storehouse containing the materials, and issue the same to the different overseers of the work-shops, charging every item used to the appropriate shop. §4809. (4711.) (4687.) Physicians. The physician of the penitentiary, appointed by the Governor, shall visit all the sick of the prisoners and guard at least once every day, and before ten o'clock, a. m., and oftener, if necessary or desired by the principal keeper. He shall also, at least once every week, inspect the institution generally in whatever may affect its healthfulness. §4810. (4712.) (4688.) 'Chaplains. The chaplain appointed by the Governor shall preach to the convicts at least once every Sabbath day, and give them such other religious instruction as their condition may require. §4811. (4713.) (4689.) Bible, etc. The Governor shall cause to be furnished to each convict a Bible and hymn-book, to remain in his cell, and, upon his discharge, he shall be permitted to carry the same away with him. §4812. (4714.) (4690.) Costs on escapes. The expenses of all trials for escapes from the penitentiary, or attempts to escarp shall be paid by the State. ^fc-«-«-^û *&+t- vÛâ^j -**j ****^tL%/Y<3f^,, /.

TITLE III. ^j^ r<~^~ £1^2221213: ^^zss-/^,. tut

CHAPTER L

CONVICTS.

Section. Section. 4814. Convicts, how disposed of. 4821. (b.) Relation of parties. 4815. How kept and employed. 4821. (c.) Hearing before Judge. 481 G. Discretion of Governor. 4821. (d.) County chain-gang. 4*17. Employment of convicts by Governor. 4821. (e.) Misdemeanor convicts. 48:8. Provision for keeping. 4821. (f. ) No fee for delivery. 4819. Superintendent. 4821. (g.) Assistant keeper. 4820. Convicts may be put in jail. 4821. (h.) His duties. 4821. 4821. lessees. , Insurrection by convicts. (i.) Duty of 4*21. (a.) Convicts hired out, when. 4821. (j.) Clothes to convicts on discharge. fi *L ActsofisTyf victed of misdemeanor, and sentenced to work in the chain-gang on

i confined in iu^iL*>L-**~ ^le PllDi c works, or public roads, or when such persons are " jl - jail for non-payment of fines imposed for such misdemeanor, the Ordi- '-+' a //Y T °J* nary of the county, and where there is a board of commissioners of Af^P^* ch***/": roads and revenue of the county, then said board of commissioners, and / * is the said County ^r r/ >_ n those counties where there a County Judge, then '9*~f« (- ' Judge, where such conviction was had, or where such convicts may rf b?>J?~+_g. t^u^*^ De confined, may place such convicts, in the county or elsewhere, to other- ^^/f / „ work upon such public works of the county, in chain-gangs, or PART IV.—TITLE III—CHAPTER I. 1249

Convicts. wise, or hire out such convicts, upon such terms and restrictions as may subserve the ends of justice and place such convicts under such guards as may be necessary for their safe-keeping.

Section referred to and construed: 55 Ga., 435.

§4815. (4717.) Provision for safe-keeping, etc. [The said Ordinary shall (b) Acts of power, and is required, to provide suitable for have places the safe-keep- Acfsonsri' ing of such convicts, to make provision for their support by the county, p- 26. to employ such overseers, or guards, or both, as may be necessary for their safe-keeping, and for their constant and diligent employment upon the public works; and shall also have power to hire out, or bind out, such convicts to contractors on the public works, or to individuals, upon such bonds and restrictions as shall subserve the ends of justice. And for the purposes specified in this section, any two or more counties, by said Ordinaries, may combine, keep, and work together, such convicts, on such terms, and upon such public works anywhere in this State, as they may agree upon.] (b.)

§4816. (4718.) Employed by Governor, when. [When convicts cannot o>) Acts of " 1865 6 - 37 - be kept and employed as provided in the preceding section, the said - p Ordinaries may turn them over to the Governor of the State, to be employed by him upon such public works in the State as he may deem best. And upon notice being given to the Governor by such Ordina- ries of their desire to turn over such convicts, he may, if he deems it advisable, refuse to receive them; but should he deem it advisable to receive them, he shall immediately send a guard for such convicts.] (b.) ftfl Acts of §4817. (4719.) How to be employed. [All convicts sentenced to labor AcSon^ on the public works, and turned over to the Governor, shall be dili- p- 37 - gently employed by him at labor upon the Western and Atlantic railroad, or upon such other public works or improvements as he may judge to be the best interest of the State, and as shall best subserve the ends of justice.] (c.)

§4818. (4720.) Provision for safe-keeping. [The Governor shall have ( C) Acts of power to employ such guards and provide such places for the safe-keep- 1865, p - 38 - ing of such convicts, as he may deem proper.] (c.)

§4819. (4721.) Superintendent, by whom appointed. [The Governor shall (a) Acts of also have power to appoint a general superintendent of such convicts, 1865 6, p. 38. at a salary of one thousand dollars, removable at the pleasure of the Governor, and said superintendent, under the advice and direction of the Governor, shall have entire control and management of all convicts thus sentenced to labor on public works, and shall have power to make all needful rules and regulations touching their emploj^ment, government, and safe-keeping.] (a.) §4820. (4722.) Confinement of convicts. [Convicts in charge of the Or- (a) Acts of " 18/1 2 " oL dinaries, or of others deriving their authority over such convicts from ' p such Ordinaries, may be confined and kept in the jails of the several counties at night, on Sundays, and other times, as such Ordinaries may A ts f direct, and only such fees or compensation shall be paid the jailers for ^ p 2^ receiving or discharging such convicts, or turning the key for such purposes, as may be determined by [the Ordinary in accordance with convicts section 3698 of this Code :] (a) ^Provided, that where such have been hired out, the party hiring shall be responsible for such costs.] (b.)

§4821. (4723.) Insurrection. [Whenever any convict or convicts now ( C i Acts of 1866 p- 15b> - confined, or hereafter to be confined, in the penitentiary of this State, > or member or members of the chain-gang now confined, or hereafter to be confined, in the penitentiary of this State, or wherever else employed as such, shall be guilty of insurrection, or attempt at insurrection, such convict or convicts, or member or members of the chain-gang, 1250 PART IV.—TITLE III.—CHAPTER I.

Convicts.

shall, upon trial and conviction in the Superior Court of the county in which the crime is committed, be deemed guilty of a capital offense, and punished with death, or such other punishment as the Judge in his discretion may inflict.] (c.) §4821. (a.) Convicts, how hired out. When any person is convicted of Actsof 1874, ail y crime or misdemeanor, the punishment whereof, according to the sentence of the Court under the law, is fine, or fine and costs, or costs with an alternative imprisonment for a certain term in default of payment, it shall be lawful for such convict to hire himself or herself to any citizen of this State who pays the amount of said sentence, for said prescribed term, by an agreement in writing, signed by the parties in the presence of, and with the written approval of, the presiding Judge; which agreement shall express the kind of labor to be performed, and

the place of performance ; and when thus executed, expressed and approved, shall be entered on the minutes of the Court. §4821. (b.) Relations sustained by the parties. During the term of said Acts of 1874, hiring, said hirer shall sustain to said convict the relation of bail on

expired from the date of his violation of his contract ; but if the hirer is adjudged in fault, by ill-treatment, or the violation of his contract or duty, said convict shall be fully and finally discharged from the penalty of such sentence. §4821. (d.) County chain-gangs. When any county or incorporated

Acts of 1878 city, town or village, having organized, or determined to organize, a ~ 9 167, ' chain-gang, to work misdemeanor convicts on its roads, streets, or other 2 J < J^ 'z&jlj&c**'? ^*>^i,^ublic works, such county or municipal corporation may lodge demands £° r such convicts with the clerk of any Court having jurisdiction to fo/ J//£//* / * try misdemeanors, and such clerk shall file the same, noting date of receipt by him.

§4821. (e.) Misdemeanor convicts, how disposed of. When any person shall be convicted of a misdemeanor and sentenced to work on the public works, in- chain-gangs or otherwise, such convicts shall be turned over and delivered to the county or municipal corporation having the oldest unfilled demand on file with the clerk aforesaid, unless the county in which such conviction is had shall have, within its own limits, an arrangement for working such convicts on the public works of the county, or some municipal corporation thereof, in which case such convicts may be retained and worked in that county. §4821. (f.) No fees for turning over convicts. It shall be illegal for the county authorities in which such convictions may be had to demand or receive from any other county, or any municipal corporation, any bonus, fees or compensation for the turning over or delivery of such convicts as provided in the two preceding sections. §4821. (g.) Assistant keeper of penitentiary to be appointed. It shall be to of the Acts ofl8g0 the duty of the Governor, to appoint the principal keeper -l, p. 103. penitentiary of this State, an assistant, whose term of office shall ex- pire with that of the principal keeper, said assistant, as to his official "

PART IV.—TITLE III.—CHAPTER I. 1251

Convicts.

conduct and responsibility, shall be subject to the same rules and regulations of law as the principal keeper, and shall receive a salary of $1,200.00 per annum. §4821. (h.) Duty of assistant keeper. It shall bo the duty of the prin- Acts of isso

1,p 10,) ' cipal keeper, or said assistant, to visit without notice, each convict ' camp in this State at least once per month, and thoroughly examine and inspect said camps and the convicts therein confined, and report under oath to the Governor immediately after each visit, the condition of said camps, and convicts, and such information as he may derive concerning their diet, treatment, and especially to report any maltreat- ment of the convicts that may come to his knowledge, together with any violations of the law for the government of the convicts upon the part of the lessees. And it shall be the duty of the Governor to cite any lessee or lessees, so charged with any abuse or violations, to show cause in the manner provided by law why their contracts of lease should not be cancelled and forfeited, or a fine imposed, and said convicts returned to the State. And -upon all such hearings, it shall be the duty of the Attorney-General to appear and represent the interest of the State. And the testimony adduced upon any such hearing shall be reduced to writing, which, with the final ruling of the Governor, shall be filed in the office of the principal keeper of the penitentiary, and shall at. all times be subject to the inspection of any citizen of this State. All reports provided for in this Act shall be filed in the Exec- utive office, and shall at all times be subject to the inspection of any citizen of this State. §482 1, (i.) Duty of lessees of convicts. It shall be the duty of the lessees Aots of isso -1 p ' 107 te> appoint, in writing, at each camp in this State, some discreet and ' proper person in their employ, whose appointment shall receive the written approbation of the Governor, subject at any time to revocation by him, before he shall be authorized to discharge the duties of his office, and who shall stay at such camp, and who alone shall inflict punishment upon any convict in this State, for a violation of the rules prescribed for their government ; and any person, other than the appointee provided for in this section, who shall inflict punishment upon any convict in this State for a violation of the rules prescribed for their government, shall be guilty of a felony, and, on conviction therefor, shall be imprisoned at hard labor in the penitentiary of this State for a period not less than six months, nor exceeding two years. And it shall be the duty of the appointees provided for in this section, to make monthly reports under oath to the Governor, in which they shall give the names of all convicts punished by them, the date, nature, cause, and extent of such punishment, and shall state the condition of the convicts at their respective camps, and the treatment thereof, and shall in their reports state whether or not they know of any cruelty to, or mistreatment of, any convict in said camp, and if so, what it was, and by and upon whom practiced, and shall also state the diet at such camps, and the average number of hours in each day they are required to work.

§4821. (j.) Clothes to convicts on their discharge. Upon the discharge Act* of isso 10 " of any convict, he shall, by the lessee, be furnished with a suit of citi-"1, p- zens' clothes, not to cost less than six dollars, and transportation to the oounty from which he or she was sentenced.