123 Ga. 129 | Ga. | 1905
1. By an act approved December 27, 1890 (Acts 1890-1891, Yol. II, p. 575), the General Assembly incorporated the town of Moultrie, in Colquitt county. The act approved December 16, 1895 (Acts 1895, p. 257), purported in its title “to reincorporate the town of Moultrie as the City of Moultrie, to confer additional powers on said corporation, and to codify, amend, and supersede all previous acts incorporating the town of Moultrie, and grant a new charter to said town, under the name of the City • of Moultrie.” On November 13, 1901, an act was passed establishing the city court of Moultrie, and on November 20, 1901, the General Assembly passed “an act to create a new charter for the City of Moultrie, in the county of Colquitt, and for other purposes.” On the call of this case in this court, a motion was made to dismiss the writ of error, “upon the ground'that a bill of exceptions will not lie from the city court of Moultrie to this court, because Moultrie had not been made a city prior to the establishment of the
What we now hold is in no sense in conflict with the decision of this court in the case of Savannah R. Co. v. Jordan, 113 Ga. 687. It was there held that “a place once’ incorporated by an act of the General Assembly as a town will not become one of the cities of this State until there is a legislative enactment expressly declaring that such place is a city; and the mere fact that in different legislative acts referring to such town it is sometimes designated as a ‘city’ will not make it a municipal corporation of the character indicated by that term.” The act of 1895 did not casually and inaccurately refer to Moultrie as a city, — it expressly repealed the act by which it was incorporated as a town, and reincorporated it as a city. It came up to the full measure of the requirement laid down by the decision in the Jordan case. See, in this connection, Sessions v. State, 115 Ga. 19. It follows that the motion to dismiss the writ of error must be overruled.
3. The solicitor, in his argument to the jury, made use of the following language: “I know defendant was guilty, or he would not have fled from Mr. Hartsfield at Norman Park.” Thereupon counsel for the accused made a motion for a mistrial on the ground that this was an improper argument, and in his motion for a new trial he assigns as error the refusal to grant a mistrial. There can be no doubt that this argument was improper, and that the motion for a mistrial should have been granted, or the solicitor rebuked and the jury instructed to disfegard such argument. The evidence fails to show flight on the part of the accused, and therefore for the solicitor to
4. The case made out by the State was substantially as follows: The accused was in the employment of the proprietor of a cleaning and pressing room in Moultrie. One Hartsfield sent his overcoat to the establishment to be cleaned and pressed. Two or three days before this time there was a pair of kid gloves in one of the pockets of the overcoat, but shortly after the coat was returned Hartsfield missed the gloves. When the overcoat was sent to the pressing room, the proprietor turned it over'to the accused to clean and press, while he went out on other business. When he returned he saw a pair of kid gloves on the dresser, and asked the accused where they came from ; to which the accused replied that he had found them on the street. The accused remained in his employ but a short time after — just how long the evidence does not disclose. Some three or four weeks after getting his overcoat back from the presser, Hartsfield was at Norman Park, in Colquitt county, and hired a team to go a little way into the country. The accused was sent to drive the team, and while driving he wore gloves which Hartsfield recognized and identified as the gloves which had been in his overcoat pocket just prior to the time the coat was sent to the cleaner. Hartsfield told the accused that they were his gloves, and that he ought to charge him ten dollars for them; but that if the accused would pay him $2.50, he would not prosecute him. "He agreed,” says Hartsfield in his testimony, “to pay me on his return to Norman Park, but he never did, although I waited where he told me, and he did not come back to me and pay me for the gloves.” The accused offered no evidence. The court charged the jury as follows : "You take the evidence in this case as. given by the witnesses, and determine his guilt or innocence. You may consider all the evidence. The court charges you that flight may be considered as a circumstance of guilt.” We are clear that the latter part of this charge was error, for the reason that there was nothing that could in'any way be distorted into evidence of flight on the part
The remaining grounds of the motion are without merit. Those which we have discussed, however, constrain.us to reverse the judgment refusing a new trial. '
Judgment reversed.