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William E. Archer vs. The State of Georgia.

oner to mercy, the Court sentenced him to confinement in the Penitentiary for life

TIDWELL & CALHOUN for plaintiff in error.

HULSEY (Solicitor General) and STEWART for The State.


Archer was convicted of murder in Fayette county, and sentenced to imprisonment for life. He moved for a new trial on various grounds-that the verdict was contrary to evidence, newly discovered evidence, &c. It is complained, that when the Judge asked, if he had omitted to charge anything, he was reminded by the Solicitor General, that he had not stated to the jury that they might recommend to mercythat the Court made the suggestion, but it seems, without adverting to the new clause in the Code upon this subject.See Section 4220, par. 5, which reads thus: "The punishment of murder shall be death, but may be confinement in the Penitentiary for life, in the following cases: 1. By sentence of the presiding Judge, if the conviction is founded solely on circumstantial testimony, or if the jury trying the traverse shall so recommend. In the former case it is discretionary with the Judge; in the latter it is not. 2. By commutation of the Governor. 3. By act of the General Assembly."

Thus it will be perceived, there are two cases where the prisoner may be puuished by confinement in the Penitentiary for life, if convicted capitally: 1st. When the conviction is founded solely on circumstantial evidence, when the Judge may or may not commute the punishment in his discretion. 2. If the jury trying the traverse shall "so recommend;" in that case it is not discretionary, the Judge is obliged to commute the punishment:-in the latter case, the jury direct the punishment and not the Judge.

Now the Judge, when his attention was called to the sub

William E. Archer vs. The State of Georgia.

ject by the Solicitor General, said to the jury, that they might recommend to mercy, and they accordingly did so; but that was not the idea of the Code. It was not that the jury should recommend to mercy, but that they should recommend specifically that he should be imprisoned in the Penitentiary for life, instead of being hung. Perhaps, if this alternative had been distinctly presented to the jury, they might have found an inferior grade of homicide. True, the Judge, with that humanity which characterized his conduct throughout the trial, seized upon the recommendation to mercy to commute the punishment from death to perpetual imprisonment, although this form of the recommendation was not authorized by the Code. Still, I repeat, that the jury might not have found the prisoner guilty of murder, if they had known that their recommendation to mercy was to have the effect of imprisoning him for life.

As all the other irregularities complained of may be corrected on another trial, it is needless to allude to them now; and we especially refrain from expressing any opinion upon the facts of the case. On the main point, viz: who made the first attempt to shoot, hangs their case; and as to that, the testimony is contradictory. It is peculiarly for the jury to settle that matter.

We cannot but express our regret, as we have done before, that counsel for the State should permit their zeal to betray them to comment upon facts not proven before the jury. They owe it to themselves as honorable men to abstain from this too common practice. And even in this Court, where there is no excitement to mislead them, counsel here permit themselves to state facts not in the record, and this makes a lodgment in the mind, which, if it does not warp our judgment, embarrasses the investigation. This practice might justify a stern rebuke, even to the setting aside of the verdict procured, in part, in this way; but we trust this reprobation of the practice, again solemnly reiterated, will suffice to cure the evil. To an ingenuous mind the consciousness of having contributed to deprive a fellow-creature of life, or

J. A. Ansley & Co. vs. Anderson, Adair & Co.

liberty, by forcing into the argument of the case gratuitous statements, not authorized by the proof, would, it seems, be punishment enough.

Judgment reversed.

J. A. ANSLEY & Co., plaintiff's in error, vs. ANDERSON, ADAIR & Co., defendants in error.

A. a commission merchant of Atlanta, had in store 20 hogsheads of sugar, belonging to H, which by mistake he sent to B. of Augusta, to be sold for Confederate notes, at 58 cents, per pound. B, made the sale and tendered the proceeds to A, who having learned the mistake in the mean time, refused to receive them, claiming the sugars instead. B. also tendered the notes to H, who refused to receive them. B, deposited the amount in hand, in his own name, notifying A. that it was so deposited, and was subject to his order at any time. A. brought an action of Trover against B, for the sugars, and pending the litigation the notes became worthless :-Held that A. is not entitled to recover; that the Confederate notes were the property of A. in the hands of B., and that B. was not an lasurer against depreciation, but was bound for only reasonable care in keeping the notes, and to deliver them whenever A. would receive them.


In Richmond Superior Court. Judge W. M. REESE. April Term, 1866.

Tried before

This action was brought in August 1863, by Anderson, Adair & Co., against J. A. Ansley & Co., to recover for the conversion of twenty hogsheads of sugar.

The defendants, after the usual plea of not guilty, plead as follows: "That the plaintiffs at the time alleged in their petition were not possessed of the said goods and chattles in said petition mentioned, or any of them, or any part thereof, as of their own property, in manner and form as alleged.

That on the twenty-fourth day of February, eighteen hun

J. A. Ansley & Co. vs. Anderson, Adair & Co.

dred and sixty-three, one John L. Harris, of LaGrange, Georgia, authorized them to sell certain of his sugars, held by the plaintiffs, and instructed plaintiffs to send these defendants samples thereof.

"That thereupon plaintiffs sent to defendants samples of ninety-five hogsheads of sugar, as the property of, or under the control of, said Harris, and by which samples, the said ninety-five hogsheads were sold on the fifth day of March, eighteen hundred and sixty-three, by these defendants, and on their arrival were delivered to the purchaser: That of this ninety-five hogsheads are the twenty sued for by the plaintiffs, and which subsequently were ascertained to be the property of one John Harris, of Covington, Georgia, and not to have been under the control of said John L. Harris.

"That these defendants were not guilty of any conversion of the said twenty hogsheads, but allege the sale of the same to have been caused solely by the mistake of the plaintiffs themselves, which was not discovered until the entire lot of twenty hogsheads, except one, was delivered to the purchaser.

"That they are Factors and Commission Merchants: that the twenty hogsheads of sugar sued for were sold by them on the fifth of March, eighteen hundred and sixty-three, by a mistake of the plaintiffs: the same having been shipped by the plaintiffs to defendants, supposing them to be the property of one John L. Harris, who had authorized the defendants to sell his sugars then with plaintiffs: that upon making such sale and rendering account thereof, to said John L. Harris this mistake was discovered, and thereupon these defendants tendered the proceeds thereof, amounting to twelve thousand four hundred and seventy-eight dollars and seven cents, in Confederate States Treasury Notes, to John Harris, the true owner, and to the plaintiffs, both of whom refused to receive the same, by reason of which they remained in the hands of these defendants and have since become and now are utterly valueless.

"That no conversion of the sugar, or its proceeds, was ever made by these defendants."


J. A. Ansley & Co. vs. Anderson Adair & Co.

The following facts, agreed on by the counsel, were submitted to the jury:

On the 23d February, 1863, John L. Harris, of LaGrange, Georgia, came to the city of Angusta and employed the defendants, who were Factors and Commission Merchants, to sell certain sugars for him, which were then in the possession of the plaintiffs in Atlanta, and telegraphed the plaintiffs to send samples of his sugars to the defendants. On the 24th February, the said John L. Harris, in the office of the defendants, wrote a letter in their presence to the plaintiffs, stating the fact of having telegraphed, and advising them that he had authorized defendants to sell the sugars at 58 cents per pound, delivered in Augusta, no statement being made to the defendants of the amount of the sugars.

The plaintiffs received the telegram and letter, and on the 27th February, shipped to defendants samples of ninety-five hogsheads of sugar as per instructions, marked J. L. H., E. B. W. and H. C. & Co.

Upon the receipt of the samples defendants sold the sugars to James A. Gray, March 5, 1863, at 58 cents per pound. Ninety-five hogsheads were sold and delivered: ninety-three on the 12th, and two on the 20th March, 1863. Immediately after the sale, notice was given to John L. Harris that the proceeds were subject to his order. Upon the receipt of this letter, John L. Harris wrote to plaintiffs that they had made a mistake in sending too much sugar. Upon the receipt of this letter the plaintiffs investigated the matter and found that they had shipped twenty hogsheads of sugar marked H. C. & Co., belonging to John Harris, of Covington, Georgia, supposing that the entire lot was controlled by John L. Harris, c LaGrange. That on the 18th March, they wrote defendants to this effect, who received the letter on the 19th, and this was the first information received by defendants of the mistake.

That all of the sugars had then been delivered to the purchaser, except two hogsheads, of which one only was of the TI. C. & Co. lot: that defendants endeavored to rescind the

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