Hall vs. The State

that a confession in this connection meant the acknowledgment of the crime, an open declaration of his guilt. It is the unanimous judgment of this bench, that when such preliminary examinations as this are to be had, that the better practice is, and impartial justice demands it, that the jury should be retired from the box whilst the admissibility of the evidence is considered by the court. When he has ruled upon it, let the jurors be brought in, and the cause proceed with such further rights as the law gives to the prisoner upon his confessions. His honor, Judge Simmons, did that which is usual and customary; he properly refused to allow the testimony, held it illegal and inadmissible, but how vain a thing it was for those jurors to seek to efface from their memories the pregnant words of these two witnesses, who swore that he had made confessions, though the words thereof were withheld from them. And if at any time the verdict "in even balance hung," back came, unbidden, the words, he has confessed it all, and cast the beam against the prisoner upon that which the judge had vainly endeavored to exclude.

To let this verdict stand, therefore, would be not only a violation of the rights of the accused, but would be permitting the conduct of the parties having him in charge to pass unrebuked, whilst we regret to say that it meets with our most unqualified condemnation.

3. We think that the court erred in charging the jury as follows: "If you believe that Murchison had a pistol on the day of his death, and that the next day the pistol was found in the possession of the defendant, you may take that into consideration in determining whether or not he was connected with the crime. If the evidence satisfies you that it was Murchison's pistol, that he had it the day of his death, and that it was found the next day in the possession of defendant, or in a place where he had concealed it, then it was incumbent on him to explain how he got it, if he has not explained."

Our objection is not to the soundness of the principles

Hall vs. The State.

embodied in the charge, but that there is not in this record sufficient evidence to have authorized its being given. No witness testified that it was found either in defendant's possession or in a place where he had con cealed it. James N. Harris testifies that "they found a couple of pistols that were in a house near that which was occupied by Green Thurman, Sr., where the boys sleptI suppose the boys slept there, there were bed-clothes there we found one pistol in a box, every barrel was loaded; one had been recently discharged, and seemed to be charged with a bright ball like pewter; the others did not appear to have been discharged recently. The other pistol was found at the southeast corner of the house, under some cotton seed, near the wall." None of the witnesses say positively that any one slept in that house, though they say it looked as if it were so occupied, still there was no bed in it, and it was shown that Green Thurman, Jr., and Isham Thurman, the sons of Green Thurman, Sr., were occupants as much so as was the accused. There is no testimony of any other witness fixing the possession of Murchison's pistol upon Joe Hall, or that he had it where it was found, stronger than that of Harris. Its possession, or concealment, therefore, was proven to have been quite as strongly put upon the other two codefendants as it was upon Hall. And the naked charge of the judge, referring alone to the defendant, and of his having it in possession, or concealing it, without alluding to the joint occupancy of the house by the others, and their equal facilities to have concealed it, was such error as worked harm to the defendant. Besides, the only allusion in the evidence as to how the pistol got on the premises was that Green Thurman, Sr. carried it there, and if that is true, its location and concealment might quite as likely have been the work of one of his sons as to have been that of Hall.

It is not out of place to say, that whenever there is a reversal of the judgment in such a case as this, that very

Ross, administrator, et al. vs. Byrd, guardian.

many of the people of the vicinage construe it to mean that, in the opinion of this court, the party is not guilty. With his guilt or his innocence this judgment has nothing to do they are to be passed upon under the law and the testimony as the same shall be presented and adjudged upon the new trial which we herewith award.

Judgment reversed.

Ross, administrator, et al. vs. BYRD, guardian.

Where a son, by his guardian, filed a bill praying to have the will of his deceased father construed so far as his rights were concerned, that the administrator be instructed as to the management of the estate, and be required to pay over to complainant, until the final hearing, out of the income, what was necessary for the temporary support and education of the son, an order requiring the payment of a certain amount for those purposes was not a final judgment which could be reviewed on writ of error; and a bill of exceptions predicated thereon will be dismissed.

Practice in the Supreme Court. February Term, 1880. Reported in the decision.

DABNEY & FOUCHE; J. BRANHAM, for plaintiffs in

error.

WRIGHT & FEATHERSTON, for defendant.

WARNER, Chief Justice.

It appears from the record before us in this case, that on the 22d of August, 1879, the complainant, Charles N. Thompson, by his guardian, J. P. M. Byrd, filed his bill against A. E. Ross, administrator de bonis non, with the will annexed, of William R. Thompson, deceased, et al., in which he prayed that the will of his deceased father might be construed and interpreted as to his rights under

Ross, administrator, et al. vs. Byrd, guardian.

it, as well as the rights and interests of other parties claiming under said will, and that the said administrator be directed and instructed as to his duties in the execution thereof by the judgment and decree of the court, and that until the final hearing of the cause said administrator might be required by an order of the chancellor to pay over to complainant out of the income of said estate what is necessary for his temporary support and education, as specified in the testator's will. The chancellor required the parties to appear before him, and after hearing the evidence offered, passed an order that the administrator pay to the guardian of complainant the sum of $214.00 out of the income of the estate for the present year for his support and expenses at the school he is now attending at Dahlonega, and authorized the guardian to keep him there until the end of the present session of the school (to-wit) the 1st of February next, and not longer without further directions from the court. To this order the defendants excepted and brought the case to this court.

When the case was called here the defendant in error made a motion to dismiss it on the ground that it was prematurely brought. This was merely an interlocutory order of the chancellor in the cause; the main cause is still pending in the court below. The defendants should have entered their exception to the decision of the chancellor on the record, as provided by the 4250th section of the Code, and upon the final disposition of the cause in the court below, they could then have brought it here; but so long as the main cause was pending in the court below, the interlocutory order passed in the cause was prematurely brought here and must be dismissed. Code, $4250. Writ of error dismissed.

Whitaker vs. Hudson.

WHITAKER vs. HUDSON.

Though a blacksmith shop may not be a nuisance per se, yet the discretion of the chancellor enjoining its erection will not be controlled where the affidavits submitted as to whether the shop, under the circumstances of this particular case, would constitute a nuisance, preponderated, in his opinion, in favor of complainant.

Injunction. Nuisance.

Before Judge BUCHANAN.

Heard County. At Chambers. March 2nd, 1880.*

Reported in the opinion.

C. W. MABRY; P. H. WHITAKER, JR., for plaintiff in

error.

GEORGE A. CARTER, for defendant.

CRAWFORD, Justice.

The complainant in the court below filed his bill alleging that the defendant had commenced the erection of a blacksmith shop within seventy-five feet of his dwelling house, without a necessity therefor, as he now has and owns another in the same village; that it is done to annoy and worry him and his family, and to force upon him the purchase of the land upon which it is to be erected at double the real value thereof; and that the shoeing of horses, shrinking of tires, the unhealthy and disagreeable smoke issuing therefrom, the noise from the blowing of bellows, two of which are to be used, the hammering on the anvils, the obstruction of his view to the street, and the danger from fire, all conspire to make the same a nuisance by reason of its location, and the effect in diminishing the value of his residence, the injury to himself and family in their comfort and happiness, as well as the inevitable loss of his wife's health. Wherefore he prayed an injunction against the erection of the said blacksmith shop.

The defendant answered the bill denying the purpose and intent attributed to him, and alleging that the lot is v 65-4