Camp vs. The State.

mitted by killing a slave. That to kill a slave is either murder or justifiable homicide. The 19th section of the fourth Division of the Penal Code answers that argument. That section declares, that the killing or maiming of a slave shall be put on the same footing of criminality as the killing or maiming of a white person.

[3.] The fourth ground in the motion is substantially, that the bill of indictment charges the plaintiff in error, with the offence of manslaughter, when the body of the indictment makes a case of murder. The defendant had been arraigned and pleaded to the bill as it was. He pleaded not guilty. There is ancient authority for saying that if a grand jury return a true bill for manslaughter on a bill for murder, it is void, but the reason assigned for it, is not very satisfactory, viz: That the grand jury are not to distinguish between murder and manslaughter, for it is only the circumstance of malice that makes the difference, and that may be implied by the law without any facts at all. Bac. Ab. Indictment, Letter 0. The same reason would prevent a jury from finding a true bill for either murder or manslaughter on a bill having two counts, one charging murder and the other manslaughter, for they would have to distinguish between them in that

case.

There is an authority as old as the time of Sir Matthew Hale, that if a bill of indictment be for murder, and the grand jury ignore it as to murder, but find a true bill for manslaughter, the words which give to the charge the distinctive character of murder may be stricken out in the presence of the jury, and leave so much as makes the bill stand barely for manslaughter. Ib.

The same authority says, the safest way is to deliver the grand jury a new bill for manslaughter. But whatever of doubt hangs over this question, in the English Courts, there is none here. The grand jury accused the prisoner of manslaughter. The body of the indictment makes a charge of murder. If the grand jury had found a bill throughout

Camp vs. The State.

for murder, on the trial, the petit jury might have acquitted the prisoner of murder and found him guilty of manslaughter. The prisoner is not prejudiced by the change of a single word, manslaughter for murder. He is rather benefitted, for he cannot be found guilty of murder. He was arraigned on the indictment as it stands and pleaded not guilty. If he wished to demur to the indictment for any matter not affecting the real merits of the charge, he ought to have done it on arraignment, before pleading the general issue. It is too late after pleading the general issue, and undergoing a trial thereon; for no motion in arrest of judgment can be sustained for any matter not affecting the real merits of the offence charged in the indictment.

[4.] In regard to the last ground taken in the motion in arrest of judgment, we will remark that the law does not require the jury to find their verdict in the language of the code, although the verdict of this jury is very nearly in the language of the code. They find the prisoner guilty of manslaughter in the commission of a lawful act, which probably might produce such a consequence, in an unlawful manner. This is all sufficient to enable the Court to pronounce the sentence of the law advisedly, upon the convicted defendant. It would have been an act of supererogation to have added any other part of the definition of involuntary manslaughter in the verdict, as that the killing was not intended, for the finding of manslaughter, is a finding of the absence of intention.

Judgment affirmed.

Aycock vs. Aven, guardian.

ISRAEL AYCOCK, plaintiff in error, vs. JOHN W. AVEN, guardian of Mary Ann Aусоск, minor, defendant in error.

Between the time of the adoption of the amendment of the Constitution, abolishing that part of the Constitution which conferred the "powers of a Court of Ordinary," on the Inferior Courts, and transferring those powers to the Ordinary; and the time of the appointment of the Ordinaries under the amendment, the Inferior Court of Marion county, appointed a guardian. Held, That the appointment was valid.

From Marion county. Appeal to Superior Court from the Court of Ordinary. Decision by Judge WORRILL.

The facts were agreed upon by counsel, and referred to the Court for decision of law.

John W. Aven was appointed guardian of Mary Aycock, minor of Joshua Aycock, deceased, by the Justices of the Inferior Court of said county, in January, 1852, and the appointment was made after the Constitution of the State was altered, so as to divest the Justices of the Inferior Court of jurisdiction in such cases, and vest the same in an Ordinary; and before the Ordinary had been elected, qualified and commissioned.

Israel Aycock moved in the Court of Ordinary to remove Aven from said guardianship, because of these facts.

The Court decided that the appointment was good.

Whereupon plaintiff's counsel excepted, and assign the

same as error.

DAVIS & HUDSON, for plaintiff in error.

E. W. MILLER, for defendant in error.

By the Court.-BENNING, J. delivering the opinion.

"All civil officers shall continue in the exercise of the duties of their several offices during the periods for which they

Aycock vs. Aven, guardian.

were appointed, or until they shall be superseded by appointments made in conformity to this Constitution." Art. 4, Sec. 14, Con. of Ga.

We must take this provision to apply not merely to the persons in office at the making of the Constitution, but also, to those who might be in office at any time afterwards. It, therefore, is to be taken as applying to the persons who were Justices of the Inferior Court, at the time when the jurisdiction which that Court had as a Court of Ordinary, was transferred from it to the present Court of Ordinary.

And the amendment of the Constitution, making this transfer, is itself to be taken in reference to this provision, and, agreeably to the general principle of construing all instruments, is to be so construed, if possible, that it shall harmonize with this provision.

Now, although, this amendment abolishes the part of the Constitution, conferring that jurisdiction on the Inferior Courts, and substitutes itself for it, yet, it does not say, that the "officers" composing the Inferior Courts, shall not continue to exercise the jurisdiction, until they shall have been superseded by appointments made in conformity to the Constitution; nor is what it does say, that from which, this is necessarily to be implied.

And unless it was, it is not to be implied, for repeals by implication, exist only where the repugnancy is necessary.

We think, therefore, that the Court was right in holding, that the appointment of this guardian, was valid, although it was made after the date of the amendment of the Constitution, transferring the power of making such appointments to another tribunal.

Judgment affirmed.

Hines and Bryan vs. Mullins, Ordinary for the use &c.

ELIAS D. HINES and GEORGE H. BRYAN, plaintiffs in error, vs. GEORGE W. MULLINS, Ordinary for the use of James G. Smith, guardian, defendant in error.

[1.] A father is bound to support and educate his children, if he is able to do so, even although they may have property of their own.

[2.] A person who has been appointed guardian, by a Court of Ordinary, and has taken possession of the property, and otherwise acted as such guardian, is concluded from saying when sued as such guardian, that the ward did not reside in the county of the Court, and therefore, that the Court had no jurisdiction to make the appointment.

Suit on bond, from Harris county. Tried before Judge WORRILL, April Term, 1858.

Letters of guardianship were granted to Elias D. Hines over the person and property of his children, by the Inferior Court of Harris county, and were revoked again by the same Court.

James G. Smith was then, by the same Court, appointed guardian in his stead; and brought his action on the guardian's bond of said Elias D. Hines and George H. Bryan, as security, to compel said Hines to pay over the estate of said minors in his hands. When, after the testimony and argument on both sides:

The Court charged the jury that the defendant insisted he was entitled to a deduction from the amount claimed by plaintiff, on the ground that his children had a separate estate, and, that he was not able to feed, clothe and educate them in a manner suitable to their condition in life, but, nevertheless, had done so, expecting to be remunerated from their separate estate; now if you believe, from the testimony, that he was not able to support and educate his children, then make the deduction-otherwise do not make it.

The Court also charged: the defendant insists that plaintiff could not recover the share of Edward M. Hines, on the ground that said ward resided in Meriwether county at the time of plaintiff's appointment as guardian, by the Ordinary