
    7948.
    Hunt v. The State.
    Decided March 13, 1917.
    Indictment for misdemeanor; from city court of Macon—Judge Guerry. October 16, 1916.
    
      W. A. McClellan, for plaintiff in error. John P. Ross, solicitor-general, Will Gunn, solicitor, W. D. McNeil, contra.
   Ltjke, J.

1. Upon the trial of one charged with a violation of section 416 of the Penal Code (1910) it was not error for the court to refuse to charge the jury:’ “If you believe, from the evidence, that this defendant was the proprietor of the Dempsey barber-shop in this county, and that between the 20th day of July, 1915, and the 16th day of April, 1916, he, at said barber-shop, by himself or agents, furnished shaves and hair-cuts to the guests of the Dempsey Hotel and others on the Sabbath, it would be a question of fact for you to determine whether, under all the circumstances of the case, the furnishing by the defendant of such was a work of necessity or charity. The word ‘necessity,’ as used in -the statute, means not- a physical and absolute necessity, but a moral fitness or propriety of the work and labor done, under the circumstances of each particular case.” McCain v. State, 2 Ga. App. 389 (58 S. E. 550).

2. On review this court refuses to overrule or modify the decision of this court in McCain v. State, supra.

3. The verdict having been demanded by the evidence, and the assignments of error being without merit, the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Wade, C. J., and George, J., concur.  