Whether or not the common law rule that in misdemeanors there are no accessories before the fact, has been-abrogated in Georgia by statute, is not settled by any decision heretofore made by this court. In Hately vs. The State, 15 Ga. 348, as appears both from the report and the ‘ original record (which we have examined), there was no evidence either that Hately was present or that he pro-cured, counselled or commanded his cleric to do the unlawful act which constituted the misdemeanor, or knew anything about it. Moreover, the judgment rendered by this court, (which, as recorded on the minutes, we have also" examined,) was put expressly upon the want of sufficient evidence on which to base the instructions given to the jury. There was certainly no occasion, therefore, for the member of the court who wrote out the opinion to distinguish between principals and accessories, or to say, as he did in a head-note, that “he who procures, counsels, com-' mands or incites his clerk or agent to commit a crime, in his absence, is guilty as an'accessory before the fact, and cannot be convicted upon an indictment which charges him with having jointly, with his clerk, committed the oU fence, as'principal.”
“ The head-note to a case, whether put there by the reporter or the judge who writes out the opinion, is so far law only, as it is sustained by the judgment of the court in the case.” Denham vs. Holeman, 26 Ga. 182. Lumpkin, J., says, p. 190, “ While it is not true that the reporter puts the head-notes to the cases, it is true that the head^ note is not law, except so far as it is warranted by the judgment of the court upon the facts-of the case.”
.That the obiter of Judge Starnes in Hately vs. The State has not been adopted, either by his contemporaries or his successors, is manifest. In Lewis vs. The State, 33 Ga. 137, by Lumpkin, J., the question is asked, “ Was the
The case of Faircloth vs. The State, 73 Ga. 426, though not'pei-haps demanding any deliverance on the subject, the person indicted having been present at the alleged sale by his clerk, and having contributed to its accomplishment, announces the rule of the common law touching accessories in misdemeanors. So does Groves vs. The State, 76 Ga. 814. Thus, every time the subject has been mentioned in the reports, so far as we are aware, since TLdtely vs. The State was decided, the tendency of the judicial mind has been away from the dieta .promulgated in that case and towards the common law. The reply we make to the learned historical argument with which the able counsel for the plaintiff in error favored us, is, that had we been here “ in the beginning,” and had he been here to make it, we should probably have yielded -to it; but a contrary construction has so long prevailed, and so many hundreds, if not thousands of cases, have in the superior court practice been rested upon it, nothing but the clearest light of truth would now justify a repudiation of the common law rule. Another consideration is, that courts, even when they have the earliest and best opportunity, rarely struggle to get away from the-common law, but delight in clinging to it like young children to the mother’s breast. There certainly never has been in our statutes or codes any express abrogation of the rule with which we .are dealing, and the safest and soundest adjudication we can now make is that there has been none by implication, and so we decide.
What has been said disposes of the 2d and 6th grounds of the motion for a new trial, and also of the first objection to the charge of the court.
The central doctrine of this instruction is, that a general authority by an employer to his clerk to sell unlawfully, will-render him answerable criminally for any. single-sale made by the clerk in pursuance of such-authority. Undoubtedly this.is-sound doctrine. Moreover, any possible-question as to ils soundness is one of law, andmot of.fact. .It is also a question- of law- whether the jury would be legally authorized to infer the existence of a general authority from a given state of facts. Certainly, the logical
Between these two announcements, the judge discussed-the' subject of what soft of authority, granted to the clerk-to violate the law by an illegal sale would bind the employer. In so doing, he stated that if there was a general ' authority, it would render the employer responsible for any particular act of sale, — that it did not require a par-. ticular authority for that act. He enumerated certain-facts, and stated that if the jury found them to exist, they' were authorized to infer from them a general authority, — -! that they might presume the existence of such authority,; not that the law presumed it. In so doing, we think he was merely announcing something that the law permitted them to do, and not instructing or intimating that' they' should do it; they were free, under the general instructions '' already given, and afterwards repeated, to make all inferences of fact for themselves.
The judge cannot pilot the jury in their passage by in-fefence from fact to. fact, but he can point out the line of transit which the law authorizes them to follow if they think the facts in evidence sustain them in taking that route. Presumptions of law are conclusions and inferences which the law draws from’given facts. Presumptions of fact are exclusively questions for the jury,' to be decided by the ordinary test of human experience. Code, §375,2..
Striking examples maybe- seen in Hanvey vs. The State, 68 Ga. 615, and Moon vs. The State, Id. 697, where the context was invoked for explanation, the part of the charge excepted to being, in. substance, that if a is used to cause b, and is likely to- cause it “ when used in the manner the proof shows it was used; the law presumes ” e. It was held that this, properly construed, was no intimation as to - what was proved- — no-invasion-of the prerogative of the jury; And see Everett vs. The State, 62 Ga. 72.
On the. general question as to- when an opinion is intimated, and when-not, I have analyzed numerous illustrative cases, and will'now give the result. If facts-a b o be proved (they were mere evidentiary, not constitutive facts), “you are authorized to-find the defendant guilty.” If, etc., “ the law presumes-the defendant guilty, but this presumption may, like all others, be rebutted. Whether the facts proved raise this presumption, or whether, if raised, such presumption has been rebutted, is for you to decide from the testimony.”’ This charge had a qualified approval by the court, which said; “-The court used a strong expression when he said that “if the above facts be proved by the testimony, the law presumes the defendant guilty; it would have been better, put in another way;
No doubt the jury may count the witnesses if they think proper to do so, but they are not, as matter of law, bound to do it, even when they think them equally credible. On such a question as the taste of a particular beverage, witnesses may be equally truthful, without being equally reliable. We cannot lay it down as a law of belief that truth is with the majority, rather than with the minority. Such a rule could not be safely acted upon save where the dis
We have thus disposed of all the legal points that were argued before us, and as we deem the verdict amply supported by the evidence, our conclusion is that the motion for a new trial was properly overruled.
Judgment affirmed.,