ON MOTION EOR REHEARING.
Counsel for defendant in error filed a motion for rehearing. Their argument is grouped as follows: “1st. That the court had overlooked several material facts in the record. 2nd. That the court had overlooked a statute. 3rd. That the court had overlooked several decisions both in the State and Federal courts which are controlling as authority and which would require a different judgment from that rendered.” The motion has served a useful purpose in pointing out what we consider was unsatisfactory language in some of the headnotes. Accordingly, those headnotes have been redrafted and modified. Cases counsel contend were overlooked are referred to as far as deemed pertinent. It is not deemed necessary or profitable to refer to Federal statutes further than has already been done. The motion insists that the court “has apparently overlooked the fact that Code section 4258 has nothing to do with the case — that defendant was indicted under section 4257, and that the only elements necessary for conviction thereunder are: 1st, the opening of an office, and 2nd, the purpose to carry on there the business of dealing in futures on margins.” The court did not overlook that contention. We could not accept that view of the law, and the majority of the court agreed to a contrary construction. The entire decision turned upon that as the basic principle. The caption of the 1906 *282act, so far as is material in the present discussion, is as follows: “An act to prohibit contracts and agreements for the sale and future delivery of cotton, grain, provisions, and other commodities, stocks, bonds and other securities upon margin, commonly known as dealing in futures; to declare such transactions unlawful, and to constitute a misdemeanor on the part of any person, association of persons, or corporation participating therein, whether directly or indirectly; to prohibit the establishment, maintenance, or operation of any office or other place where such contracts are made or offered,” etc. The first section of the act (Code § 4257) penalizes what is “commonly called dealing in futures on margins.” The second section of the act (Code § 4258) defines what is meant by the phrase, “commonly called dealing in futures.” Without reference to the second section, it can not be judicially determined what is meant in the first, and reference to the caption of the act aids the court and confirms the view shown by section 4258. If' the view of movants is correct, any person may be convicted by showing (1) opening an office, and (2) having the purpose to carry on the business of dealing in futures on margin. This view we rejected. Such dealing may be entirely lawful, where actual deliveries are made or are intended to be made. In such cases manifestly the legislature did not intend to make it unlawful and penal to open an office for carrying on such business. We endeavored to make this clear in the opinion.
The very facts the motion refers to as having been overlooked were elaborately mentioned in the statement of facts, it being made clear in that statement that no deliveries had been shown with regard to customers dealing through the Atlanta office. The statement concluded as follows: “Nowhere in the evidence is it disclosed that actual deliveries of cotton or other commodities were ever made by or to clients of Fenner & Beane in this State. Nor does the documentary evidence, giving the names of brokers outside this State with whom Fenner & Beane dealt for their Atlanta clients, furnish the name of any person from whom said clients in this State were to receive actual deliveries of cotton or other commodities through any broker or otherwise, or to whom said clients were to malte actual deliveries through brokers or otherwise.” Besides, it is pertinent to recall that the last headnote rules as follows: “As thé case is remanded for a new trial *283on the exceptions to the refusal of the court to instruct the jury as requested, no ruling is made upon the sufficiency of the evidence to support the verdict.” After careful consideration of the motion, which its importance deserved, we ñnd no sufficient reason for reopening the case.