HARWELL, J. The defendant was indicted for a violation of section 11 of the law approved November 30, 1915, regulating the use of automobiles on public highways, which provides, inter alia, as follows:

plaintiff, and the allegation in his petition that he had never at any time "been taken before any magistrate, committing officer, or court for a hearing or trial upon said warrant or the charge which defendants alleged and claimed against," and that there has not been any indictment against him by a grand jury on said "Whenever any operator of a motor vehicle charge of misdemeanor or any other charge, although there have been terms of superior court highway, any person or persons riding or drivor motorcycle shall meet, on a public street or of Tift county at which the grand jury was ing one or more horses, or any other draft animpaneled, held since the issuance of said war-imal, or any other vehicle, approaching in the rant, to wit, July term, 1914, December term, opposite direction, the operator shall turn his 1914, and July term, 1915, did not constitute vehicle to the right so as to give one-half of a sufficient compliance with the requirement the traveled roadway, if practicable, and a fair that it must affirmatively appear that there had opportunity to the other to pass by without unbeen a termination of the prosecution before any necessary interference." right of action would arise against the defendant. Waters v. Winn, 142 Ga. 138, 82 S. E. 537, L. R. A. 1915A, 601, Ann. Cas. 1915D, 1248. This ruling is not in conflict with Pick ard v. Bridges, 7 Ga. App. 463, 67 S. E. 117, for there it was not only alleged that a term of the superior court of the county, with a grand jury impaneled, had convened and adjourned, without any further prosecution of the criminal charge, but it was also distinctly alleged that the warrant had been dismissed, and the plaintiff discharged.

3. DISMISSAL OF PETITION.

He demurred to the indictment upon the ground that this statute is too vague and indefinite for penal enforcement, and his demurrer was overruled.

The language of this court in Hayes v. State, 11 Ga. App. 371, 75 S. E. 523, is peculiarly applicable in this case:

"It is the duty of the judicial department, wherever possible, to construe an act of the legislative department so as to make it valid and

The court did not err in sustaining the de- binding and give due effect to all of its terms. murrers and dismissing the petition.

Error from City Court of Tifton; James H. Price, Judge.

Action by E. R. Garrett against the Foy & Adams Company and others. Judgment for defendants dismissing the petition, and plaintiff brings error. Affirmed.

B. C. Williford and Fulwood & Hargrett, all of Tifton, and F. G. Boatright, of Cordele, for plaintiff in error. R. D. Smith, of Tifton, for defendants in error.

WADE, C. J. Judgment affirmed.
JENKINS and LUKE, JJ., concur.

(21 Ga. App. 658)

HALE v. STATE. (No. 9288.)

Hence, a statute ought not to be held void for
uncertainty if it is possible to give a reasonably
particular construction to its terms, so as to
make them capable of enforcement. But while
this is true, the state cannot make an act penal
without defining the act in terms sufficiently
clear for any person to understand that in per-
forming the act he is guilty of a violation of
the statute. The maxim that 'ignorance of the
law is no excuse for crime' is founded upon the
theory that the citizen may ascertain the law
and know that the act which he is performing
has been condemned. If it is impossible for him
to ascertain that a given act has been made
penal, it would be manifestly unfair for the state
to punish him for a commission of the act.
the law is of such doubtful construction, and
describes the act denominated as a crime in
terms so general and indeterminate, as to make
the question of criminality dependent upon the
idiosyncrasies of individuals who may happen
to constitute the court and jury, and of such a
nature that honest and intelligent men are una-
ble to ascertain what particular act is condemned
by the state, the law in incapable of enforce-

(Court of Appeals of Georgia, Division No. 2. ment, and will be held to be null and void."

Jan. 22, 1918.)

(Syllabus by the Court.j

HIGHWAYS 166 - MOTOR VEHICLE LAW
UNCERTAINTY-VALIDITY.

If

The authorities cited in that case amply support and illustrate the foregoing principle of statutory construction, universally applied by the courts. In that case a statute So much of the act approved November 30, making penal the operation on one of the 1915 (Acts Ex. Sess. 1915, p. 113, § 11), regulating the use of automobiles, as undertakes to highways of this state "at a rate of speed make penal the failure of any operator of a greater than is reasonable and proper, havmotor vehicle, when meeting any vehicle ap-ing regard to the traffic and use of such highproaching in the opposite direction, to "turn his vehicle to the right so as to give one-half of the traveled roadway, if practicable, and a fair opportunity to the other to pass by without unnecessary interference," is too uncertain and indefinite in its terms to be capable of enforcement.

Error from City Court of Cairo; W. J. Willie, Judge.

M. M. Hale was convicted of a violation of the motor vehicle law, and he brings error. Reversed.

S. P. Cain, of Cairo, for plaintiff in error. Ira Carlisle, Sol., of Cairo, for the State.

way, or so as to endanger the life or limb of any person or the safety of any property." was declared to be too uncertain and indefinite in its terms to be capable of enforcement, and this ruling was followed by the Supreme Court of this state in Empire Life Ins. Co. v. Allen, 141 Ga. 413, 415, 81 S. E. 120, and in Strickland v. Whatley, 142 Ga. 802, 83 S. E. 856.

The statute under consideration provides that the operator, when meeting another vehicle, "shall turn his vehicle to the right so as to give one-half of the traveled road

way, if practicable, and a fair opportunity | operator of a motor vehicle, when meeting any to the other to pass by without unnecessary vehicle approaching in the opposite direction, to 'turn his vehicle to the right so as to give oneinterference." But who should determine, half of the traveled roadway, if practicable, and in each particular case, whether, under the a fair opportunity to the other to pass by with particular circumstances of that case, it was out unnecessary interference,' is too uncertain practicable for the driver to give the other and indefinite in its terms to be capable of enforcement." The indictment in the instant case party half of the traveled roadway? Under being based upon that portion of the act recertain circumstances one jury might consid- ferred to in the above opinion which is therein er such action practicable, and convict; an- declared to be "too uncertain and indefinite in other jury, under the same circumstances, dict is contrary to law, and the judgment must its terms to be capable of enforcement," the ver might deem it impracticable, and acquit. be reversed. If the driver of the motor vehicle deemed it impracticable to give half of the traveled roadway and in good faith failed so to do, he would be convicted of the offense should the jury find he used poor judgment in passing upon the practicability. How is the driver to know in all cases when he is violating this statute?

Error from Superior Court, Dooly County; D. A. R. Crum, Judge.

D. F. Hamilton was convicted of a violation of the motor vehicle law, and he brings error. Reversed.

error.

Max E. Land, of Cordele, for plaintiff in J. B. Wall, Sol. Gen., of Fitzgerald, Powell & Lumsden, of Vienna, and Jesse Grantham, of Fitzgerald, for the State.

BLOODWORTH, J. Reversed.

BROYLES, P. J., and HARWELL, J., con

cur.

(21 Ga. App. 604) COSBY v. REID. (No. 8732.) (Court of Appeals of Georgia, Division No. 1. Jan. 22, 1918.) (Syllabus by the Court.)

1. BOUNDARIES

52(1)-PROCESSIONING-LO

CATION OF LINES-STATUTE.

The remaining portion of the section under consideration, requiring such driver to give a "fair opportunity" to the other to pass by without "unnecessary interference," needs no discussion to show its indefiniteness and vagueness. Probably no two minds would agree on the meaning of "a fair opportunity," nor of "unnecessary interference." These expressions are very similar in nature to such expressions as "reasonable and proper," disapproved of in the case of L. & N. R. Co. v. Commonwealth, 99 Ky. 132, 35 S. W. 129, 33 L. R. A. 209, 59 Am. St. Rep. 457, and "narrow-tired wagon" and "broad-tired wagon," held too vague in Cook v. State, 26 Ind. App. 278, 59 N. E. 489. For the foregoing The duty of processioners in fixing and reasons we are constrained to hold that so marking anew established lines is not to locate much of the act quoted above as undertakes them as they originally ought to have been laid to make penal the failure of any operator aries as they actually exist (Boyce v. Cook, 140 out, but only to fix and determine the boundof a motor vehicle, when meeting any ve- Ga. 360, 78 S. E. 1057; Langley v. Woodruff, hicle approaching in the opposite direction, 144 Ga. 702, 87 S. E. 1054), keeping in view to "turn his vehicle to the right so as to scribed by section 3820 of the Civil Code of 1910, the rules governing in disputed lines as pregive one-half of the traveled roadway, if as well as the provision of law that, "Where acpracticable, and a fair opportunity to the tual possession has been had, under a claim of other to pass by without unnecessary inter-right, for more than seven years, such claim shall ference," is too uncertain and indefinite in its terms to be capable of enforcement, and that the trial judge erred in overruling the demurrer to the indictment, based upon the invalidity of such statute. Judgment reversed.

be respected, and the lines so marked as not to interfere with such possession." Civ. Code, 1910, § 3822. It is not the function of processioners to ascertain and fix new lines; their duty is only to run and mark anew those which can be taken as having been formerly located and established. Amos v. Parker, 88 Ga. 754. 16 S. E. 200; Parrish v. Castleberry, 142 Ga. 115, 82 S. E. 520 (2); Wheeler v. Thomas, 139

BROYLES, P. J., and BLOODWORTH, J., Ga. 598, 77 S. E. 817; Elkins v. Merritt, 20

concur.

(21 Ga. App. 660)

HAMILTON v. STATE. (No. 9317.) (Court of Appeals of Georgia, Division No. 2. Jan. 22, 1918.)

(Syllabus by the Court.) CRIMINAL LAW 13-OFFENSE-INDEFINITENESS-VALIDITY.

In the case of Hale v. State (9288) 94 S. E. 823, it was held that "so much of the act approved November 30, 1915 (Acts 1915, Ex. Sess. 11, p. 113), regulating the use of automobiles, as undertakes to make penal the failure of any

Ga. App. 737, 92 S. E. 51. Thus, muniments of title accompanied by diagrams or plats which might on paper sufficiently describe and designate the lines and boundaries of realty so as to render their ascertainment certain will not of themselves afford the proper basis for the serv course and extent of the line itself may not have ices of processioners. But even though the been actually marked out upon the earth's surface, yet, if there should exist a sufficient number of physically established corners or landmarks, the mere connecting of which by straight lines, or from which the projecting of the courses and distances shown by the plat would suffice to complete the boundary, it would be the duty of processioners, in accordance with the provi sions of section 3820 of the Civil Code of 1910, so to ascertain, mark, and establish the same,

respecting always the rights had under actual
possession as defined by section 3822 of the Civil
Code of 1910.
REQUESTED CHARGE

2. TRIAL 296(1) LANGUAGE.

The failure to charge in the precise language requested is not cause for a new trial, where it appears that the principle involved was sufficiently covered by the general instructions given. Gramling, Spalding & Co. v. Pool, 111 Ga. 93, 36 S. E. 430; Wheatley v. West, 61 Ga. 402 (4); Parker v. Georgia Pacific Railway Co., 83 Ga. 539, 10 S. E. 233 (5); Millen Railroad Co. v. Allen, 130 Ga. 656, 61 S. E. 541 (4); Atlantic Coast Line Railroad Co. v. Odum, 5 Ga. App. 780, 63 S. E. 1126 (2).

3. TRIAL 296 (1)—PROCESSIONING-CHARGE. The excerpts from the charge of the court, when considered in connection with the charge as a whole, are not subject to the criticisms made in the third, fourth, and fifth grounds of the amendment to the motion for a new trial.

(2) "The vocation of the processioners is to view and mark lines which at some previous time were located and established. They seek and find lines already existing, but cannot bring into existence any which have not been before designated on the surface of the earth. Lines merely drawn on paper or in the minds of the contracting parties are not ready for the search or services of processioners."

This language is an extract from the opinion rendered in the case of Amos v. Parker, 88 Ga. 754, 16 S. E. 200. The court charged the jury as follows:

"In all cases of disputed lines the following rules shall be respected and followed: Natural landmarks, being less liable to change, and not capable of counterfeit, shall be the most conclusive evidence; ancient or genuine landmarks, such as corner stations or marked trees, shall control the course and distances called for by the survey."

These excerpts are in the language of section 3820 of the Civil Code of 1910. The court further charged the jury:

that the object of these processioners is to find "You must hold in your minds all the time and re-mark the original lines. They have no right nor jurisdiction to establish new lines. * * * Processioners have no power, as I have already instructed you, to ascertain and fix new lines, but only to run and mark those which were formerly located and established."

Jno. T. West, of Thomson, Wyatt A. Hornesberger, of Lincolnton, and Colley & Colley, of Washington, Ga., for plaintiff in error. C. J. Perryman, of Lincolnton, for defendant in error.

This was the trial of an issue made by a protest to the return of processioners. The jury found in favor of the return. The case is here on exceptions to the refusal to grant a new trial. It appears that both parties to the litigation derived their title from the same original source, the adjoining tracts being lots formed in a prior subdivision of an estate, made in 1886, the processioners and surveyor testifying to their access to and use of the plat made in that division. The plaintiff in error contended that the disputed line was physically marked along the course as contended for by her, and that she had been in actual possession of the land up to this JENKINS, J. (after stating the facts as line for more than seven years. The defend-above). [1] 1. Under the rule as expressed ant in error introduced rebutting evidence, to in the first headnote, the processioners, in the effect that the marks relied on by the ad- the absence of higher and controlling eviverse party were not landmarks and had not dence accepted by them to the contrary, been made for such purpose. She further were authorized to run, mark, and establish denied the adverse possession claimed by the the disputed line, when such could be done, plaintiff in error. On these points the jury by means of courses and distances in accordfound in her favor. The defendant in error ance with the plat, projected from actual contended that three of the four corners of physical landmarks. We think the charge her tract were physically fixed and deter- of the court relative to the want of authority mined, and it appears that the line arrived at by the processioners was fixed by running the line in accordance with the plat, by reference to courses and distances emanating from two of such established corner landmarks, so as thus to arrive at and fix the point of the fourth corner physically undesignated. In the motion for a new trial it is complained that the court refused written requests to charge the jury as follows:

on the part of processioners to establish new lines, but limiting their power to the establishment and marking of lines already existing, was sufficiently clear.

[2, 3] 2. While one portion of the excerpt from the charge complained of in the third ground of the amendment to the motion for a new trial may not be within itself as complete and clear as it might have been, yet the charge, when considered in connection (1) "The law provides, if the corners are estab- with the instructions given just preceding lished and the lines not marked, a straight line and immediately following the portion comas required by the plat shall be run. charge you that this law not only means one corner plained of, and when taken as a whole, shall be established, but that the corner to which makes it perfectly clear that if in the opinion it is to be connected shall be established." of the jury the evidence showed an establish

(Court of Appeals of Georgia, Division No. 2. ted to the jury, and, a verdict being rendered

All charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and "The refusal to direct a verdict is not error material to the relief sought, whether legally in any case." sufficient to obtain it or not, are privileged. Ga. App. 178, 68 S. E. 883 (1); Western & Roper Grocery Co. v. Faver, 8 However false and malicious, they are not libel- Atlantic R. Co. v. Callaway, 111 Ga. 889, 36 ous. Civ. Code 1910, § 4438: Wilson v. Sulli- S. E. 967 (2); Owen v. Palmour, 115 Ga. 683, van, 81 Ga. 238, 7 S. E. 274; Bibb v. Craw-42 S. E. 53 (1); Kelly v. Strouse, 116 Ga. 872, ford, 6 Ga. App. 145, 64 S. E. 488.

2. LIBEL AND SLANDER SO-PRIVILEGE-tiff must show title in himself, or the right of CAUSE OF ACTION.

[Ed. Note.-For other definitions, see Words Action by W. E. Gibbs against the Bank and Phrases, First and Second Series, Conof Tifton and others. Judgment for defend-structive Delivery.]