Minor v. State, 63 Ga. 318

Minor v. State

63 Ga. 318 | Ga. | 1879

Bleckley, Justice.

The indictments were demurred to in due time, and the points against them may be considered as these three: that they gave the initials only, and not the full Christian names of some of the grand jurors; that the foreman of the.grand jury was over age, and his name was not in the jury-box; and that the names of the grand jnvors were not inserted in the indictments by the jurors themselves, but were all in one and the same hand-writing.

*3201. However it may be elsewhere, in this state men are frequently as well known by their initials as by their given or Christian names in full. 18 Ga., 4(35. Many are even better known by the former than by the latter. Hundreds and thousands, no doubt, sign almost invariably with nothing for the prenomen but initials. The most solemn private and public documents are thus executed every day. Deeds and wills are so signed; and the same is true of pleadings, process, judgments, executions, levies, warrants, bills of exceptions, and official certificates. If, with us, initials do not constitute, or adequately represent, a given name, it is not improbable that more than half the instruments, public and private,'executed within the state in the last fifty years are defectively signed. There seems no reason for overthrowing an indictment for a mode of writing names which has become interwoven with the whole business of the state and people, and the prevalence of which is attested by the records of every court, this court included. In the nature of things, letters of the alphabet are as well adapted as words to stand for and distinguish different persons of the same cognomen. Thus A. II. Brown, B. T. Brown and C. M. Brown, would serve quite as well to identify three members of the Brown family as Andrew H. Brown, Benjamin T. Brown and Charles M. Brown, and when by long use the initial forms are in fact as well known as the others, they will be just as certain as the others to suggest the right persons. And this is the great office and purpose of a name. If it .is in common and familiar use, and stands to the mind as a sign or index of the person signified, what it wants in other respects is of no practical consequence. In impressing a name, no baptismal seal in requisite. The rule of law as to two names for the same person is, that either is sufficient when the individual is equally well known by the one as by the other; and there is, at this day, no substantial reason for not applying the rule between two usual and customary forms of writing a name. 'Without shutting the eyes to all the light that surrounds us, *321there can be no presumption that particular men are less known by their initials than by their given names in full. And we are clear that the contrary presumption ought to be indulged where initials only are prefixed to the surnames of members of the grand jury in the indictments which they have found and returned. The persons whose names are in question are to be considered as themselves ■practicing and sanctioning that form.

2. As to the foreman, there was no evidence that, he was over age or that his name was not in the jury box. Neither ■of these facts appeared on the face of the record or the pleadings, and if they existed, the demurrer could not reach them. As no incompetency was apparent, the court, in Tilling the demurrer, had to presume that the foreman, as ■well as the rest, was competent.

3. It is a novel suggestion that each member of the grand jury must sign or insert his name with his own hand, ■and that some one member may not act as clerk, and do the clerical work of the body, as has been the immemorial •usage in this state. The suggestion is pregnant with innovation, but barren of law.

4. The denial of a request to charge the jury is complained of, which request, we must say, contained an excellent definition of a tippling-house. Most probably it was taken from good authority ; but the dictionary definition •of a term i» frequently the mere air.of the music which the accused has attempted to execute with variations. Frequently, too, the variations are so luxuriant and ingenious that the air is much disguised, and to hum it over from the bench is but little assistance to the jury in following the real performance. It is something easier for an ofEender to baffle the dictionary than the penal code, for the former ■is perplexed with verbal niceties and shades of meaning, while the latter grasps in a broad, practical way at the substantial transactions of men. The Code offers no definition of a tippling-house. It deals with them as establishments too well known to need description, and simply prescribes a penalty for keeping them open on the Sabbath-day *322or Sabbath-night. §4535. The court was not bound to define tippling-house at all, but might, if so minded, have left the jury to- their own information and intelligence as to the meaning of so common a term. The proposition charged in lieu of the one requested is sound, and has the-merit of coming to the point and dealing with the actual case as made by the evidence. To keep clear of the literal definition of a tippling-house was what the defendant and his associates set out to do, and it would have been idle to try whether they had succeeded or not. The whole question was whether, in departing from the usual mode of tippling, the criminal elements were included or excluded. The entire pressure of the case was upon the effect of the departure.

5. To tell the jury that they can reject testimony which has been legally admitted by the court, is not a felicitous form of instruction. To withhold credit from a witness, is not to reject his testimony, but to retain and disregard it. What was substituted by the court in place of the charge requested, was better than the language of the request

6. According to the evidence in the record, organized and systematic tippling on the Sabbath-day, and retailing of spirituous liquors as means to that end, were carried on under cover of the resolutions and by-laws of the “ Albany Glee Club the house at which the club habitually met and drank was a tippling-house, the owner of the house, who-was an officer of the club, and who received the contributions, purchased the liquors, and dispensed them by the drink and otherwise, was both a retailer and a keeper of a tippling-house. The instrument of social union was as follows, the names of twenty-eight persons being subscribed thereto:

“RESOLUTIONS AND BY-LAWS FOR THE GOVERNMENT OF THE ALBANY GLEE CLUB.’'

“Resolved, 1. That this club shall be known as the ‘Albany G-lee Club.’

“ Resolved, 2. That this club, and we the members thereof, knowing-that it is in strict violation of the city as well as the state laws for any dealer in spirituous or fermented liquors to sell ou the Sabbath-day, *323and not wishing to violate the laws in any part or sentence, nor to cause others to do so, and knowing that every laboring man or others who are in the habit of taking their social drinks during the week, wants and needs it on the Sabbath.

“ Resolved, 3. That in order to comply with the laws in every particular, agree to pay the sums opposite our respective names, to a treasurer to be chosen by the club, on or before the Saturday preceding each Sabbath, for the purpose of purchasing the liquor necessary for the use of the club the following Sabbath.

“ Resolved, 4 That the club shall have a president, secretary, treasurer, to be elected by a majority of the club on the first of each month, dating from the time of the first election.

“ Resolved, 5. That it shall be the duty of the president to preserve strict order and see that no member shall so far forget himself as to become so intoxicated as to be boisterous on the streets as well as the club’s place of meeting.

“ Resolved, 6. That the office of secretary and treasurer shall vest in one man, whose duty it shall be to keep a strict account of all moneys received and disbursed by him. He shall produce bills of merchandize as vouchers to the club.

“ Resolved, 7. That no member shall invite an outsider that has not paid his quota to the benefit of the club, without the consent of two-thirds of the members present.

“We the undersigned members, cordially indorse the foregoing preamble with the amounts opposite our names.”'

Judgment affirmed.